Addidon Nigeria Limited V. Panabiz International Limited & Anor (2016) LLJR-CA

Addidon Nigeria Limited V. Panabiz International Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The instant cross appeal, just like the main appeal [CA/C/227/2009], is equally a fall-out of the judgment of the High Court of Akwa Ibom State in suit No. HEK/148/2005, delivered on July 7, 2009. By the said judgment the Court below, Coram Ita G. Mbaba J. (as he then was) granted some of the declaratory reliefs sought by the present Cross – Appellant against the 1st cross-Respondent. The cross – Appellant was the 1st Respondent, while the 1st and 2nd Cross – Respondents were the Appellant and 2nd Respondent in the said main appeal, respectively.

It is trite, the vexed judgment of the Court below was to the following conclusive effect :
I hold therefore that the 1st Defendant breached the contract it had with the plaintiff when it failed to pay for service rendered to it (1st Defendant) as per the claims in Exhibit 23, which was not disputed upon entering into a conflicting contract with the 2nd Defendant though with the ratification of the plaintiff, as per Exhibit 22.
Accordingly, this case succeeds only on that point and the plaintiff is entitled to damages

against the 1st ‘Defendant as per the claims (relief 34 (H) of the statement of claim) that is to say, the sum of Two Million, Nine Hundred and forty Nine Thousand, One Hundred and Thirty Nine Naira (N2,949,139.00) only; being the balance of the amount due and owning to the plaintiff as debt due as commission for the supply of Panasonic machines and consumables for the period of March and April, 2005
Having held the said money of the plaintiff against the will and interest of the plaintiff, and for the benefit of the 1st Defendant upon the breach of the said contract, the plaintiff would be entitled to damages, generally.
I therefore, award five million (N5,000,000.00) to the plaintiff against the 1st Defendant, as general damage.
I do not think the 2nd Defendant should be held responsible for the said end of the relationship between the plaintiff and the 1st defendant in the service of the 2nd Defendant. Accordingly the 2nd Defendant is not liable.
The 1st Defendant shall pay interest on the judgment debt at the rate of 10% per annum from the date of judgment until same is fully liquidated.
The 1st Defendant shall also pay the cost of

this action assessed at twenty thousand naira (N20,000.00) only.

See pages 278 – 320, especially at pages 319 – 320, of the record of appeal. Not unnaturally, the Cross-Appellant was equally dissatisfied with some parts of the said judgment. Thus it was granted leave and extension of time by this Court to file the notice of cross Appeal thereof on October, 4, 2010. The said notice of Cross of Appeal is to the effect thus:
GROUNDS OF CROSS – APPEAL
GROUND ONE
The learned trial judge erred in law when he held that Mr. Idongesit Ekpanya (PW1) who witnessed exhibit 22 as a witness of the 1st cross-Respondent, the cross- Appellant was liable to the contract contained in Exhibit 22 and therefore stopped grown alleging the breach of distributorship agreement contained in Exhibit 1, 11, 12, and 13.
PARTICULARS
GROUND TWO
The learned trial judge erred in law and misdirected himself after findings of facts that the 2nd Respondent induced and aided the breach of the contract of distributionship contained in Exhibit 1, 11, 12 and 13 but later somersaulted in exonerating the 2nd Cross-Respondent from liability and consequently refused and failed to award

damages against the 2nd Cross-Respondent.
GROUND THREE
The learned trial judge erred in law when it failed to follow the principle laid down in awarding damages against the 1st and 2nd cross-Respondents having made a finding of fact that the 1st and 2nd cross-Respondents were guilty of the breach of contract.

The cross Appellant’s brief of argument was filed on 09/3/12 by Victor Ukutt, Esq. It contains a total of 16 pages. At page 6 of the said brief, three issues have been couched, viz:
(a) Whether a party who signs a contract as a witness can be liable to the obligations contained therein so as to stopped (sic) him from alleging breach of contract in respect thereof and whether the Managing Director of a company can it so facto bind a company when acting in his capacity as the managing director without boards resolution and approval. (Ground 1 of the notice of appeal).
(b) Whether the learned trial judge exercised his discretion Judicially and judiciously when after finding that the 2nd Cross-Respondent was a party to the breach of contract in Exhibit 13 but failed/refused to award damages against the 2nd Cross-Respondent in respect

of the breach.
(Ground 2 of the notice of Cross-Appeal).
(c) Whether the learned trial judge was right when he held 1st and 2nd Respondents liable for breach or contract and laid down the principles as stated in the said contract to award damages against the Cross-respondents but failed and/or refused to follow the said principles as contained in the said contract in awarding damages against the Cross-Respondents.
(Ground 3 of the notice of Cross-Appeal.)

On the other hand, the 2nd Cross-Respondent filed a reply to the cross-Appellant’s brief on 07/2/2013. It spans six pages. At page 2 thereof, three issues have been raised, viz:
1. Whether the learned trial Judge in his judgment ever found that the Cross-Respondent was liable for breach of contract to warrant the award of damages against it.
2. Whether the Courts can grant to the cross- Appellant a relief not sought at the trial Court
3. Whether the cross-Appellant can raise a new issue on Appeal.

As alluded to above, the instant cross-Appeal is equally a fall-out of the said judgment delivered on July, 7, 2005; the subject of the main appeal. It is trite, that just a

moment ago the judgment has been delivered by this Court resulting in dismissing the main appeal (CA/C/227/2009), and affirming the judgment of the Court below (HEK/148/2005) in question.

Most instructively, in the said judgment just delivered by this Court, virtually all the three issues postulated in the cross-Appeal by the cross Appellant were germane to the three issues that have so far been dealt with in the course of the determination of the main appeal. Thus, it’s my considered view, that to determine the three issues raised in the instant cross-Appeal would amount to a sheer wasteful academic, exercise. See ODEDO vs. INEC (2008) LPELR- 2204(SC).

It is a well principle, that Courts of law do not indulge in sheer academic exercises. Invariably, Courts restrict themselves in dealing with live and unspent issues: OYENEYE vs. ODUGBESAN (1972) 4 SC 244; NKWOCHA VS. GOVERNOR OF ANAMBRA STATE (1984) 1 SCNLR 634; CHUKWUKA vs. STATE (2011) 18 NWLR (pt.l278) 1.

Fundamentally, when a question, issue or point is said to be academic, it means that it has no real relevance or effect, That is to say, it has been spent and no longer of any probative

value or benefit. Thus, it is no longer worth expending the precious time of the Court nay parties thereupon. See ODOMA vs. PDP (2015) LPELR-24351 (SC) per Ogunbiyi, JSC, @ 56 paragraphs F – G.
In PLATEAU STATE VS. A-G, FED. (2006) 3 NWLR (Pt. 967) 346, the Apex Court was recorded to have aptly held:
An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.
Per Niki Tobi, JSC (of remarkable blessed memory) @ 419 paragraphs C – G. See also ODEDO VS. INEC (supra) per Niki Tobi, JSC @ 36 paragraphs C-G.

Hence, it’s equally my considered opinion, that the instant cross-Appeal is spent and ought to abide by the judgment in the main appeal (CA/C/227/2009) just delivered by this Court. In the circumstance, the only noble option left to this Court is to strike out the cross-appeal (CA/C/227A/2009), and same is

hereby struck out.
Parties shall bear their respective costs or litigation.

Other Citations: (2016)LCN/8984(CA)

Barr. Peter Offiah V. Chief Nnamdi Offiah & Ors (2016) LLJR-CA

Barr. Peter Offiah V. Chief Nnamdi Offiah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

The 1st to 3rd Respondents are plaintiffs in Suit No. HOW/133/2011 pending at the High Court of Imo State, Owerri Division. The Appellant and 4th Respondent are defendants in the suit.

The writ of summons in this suit issued on 17-5-2011. In paragraph 32 of the statement of claim filed the same date the plaintiffs claimed of the defendants as follows: –
?1. Declaration that the claimants are the authentic and recognized managers of the Estate of Late Chief Greg I. Offiah comprising of a two storey building situate at No. 25 Douglas Road Owerri Imo State, a one storey situate at No. 17 Old Aba Road Rumubiakani Port Harcourt Rivers State.
2. An order of Court on Finbank Nigeria Plc to transfer all monies so far collected on behalf of the family by Don. I. Offiah and Barr. Peter Offiah which they paid into a Finbank Nigeria Plc joint account No. 123430000285201 in their names into the now family account No. 1261060032247 with Diamond Bank Nigeria Plc in the name of Greg. I. Offiah?s children.
3. Perpetual injunction restraining Barr. Peter Offiah from collecting or

continuing to collect rent from the tenants occupying any of the families? properties without authentication and consent of the family.?

On the 11th day of April 2011 before the issuance of the writ of summons, the plaintiffs had obtained an order from the High Court of Imo State in the following terms –
ORDER OF COURT
Upon reading through the exparte motion, the supporting affidavit, and the written argument in support of same and the reliefs sought therein and after hearing A. C. Meze, esq of Counsel for the Applicants.
THE COURT HEREBY ORDER AS FOLLOWS:
That the writ of summons and other Court processes are to issue out of Imo State for service on the 1st defendant at No 12 Akerele Street Surulere Lagos. Lagos State and the 2nd defendant at No. 93 Broad Street Lagos.
IT IS FURTHER ORDERED THAT THE WRIT OF SUMMONS are to be marked as one for service outside jurisdiction of this Court.
IT IS FURTHER ORDERED THAT the writ of summons and all other processes in this suit, be served on the 1st defendant by substituted means. That is to say by delivery of same to his office at No. 12 Akerele Street, Surulere Lagos,

Lagos State by EMS speed post or DHL or any other recognized courier service. And on the 2nd defendant through their branch Manager or any other officer at their Wetheral road branch, Owerri, Imo State.
That such service, shall be deemed good, and proper service on the defendants/Respondents.
Return date is 11/5/2011.

The writ of summons that issued had endorsed on it ?For service out of jurisdiction.? The plaintiffs on 23-5-2011 also filed a motion on notice at the trial Court seeking an ?interlocutory injunction restraining the first defendant from collecting rent and/or continuing to act as manager of the properties of Late Chief Greg I. Offiah pending the determination of the substantive suit.?

On being served with these processes the Appellant, in a motion dated 6th May, 2011 but filed on 8th June, 2011 prayed the trial Court as follows:
?1. AN ORDER of Court setting aside the service of the Claimants/Applicants motion for interlocutory injunction dated 23rd May, 2011 filed in Court the same day, improperly served on the 1st Defendant on 2/6/2011 and fixed for hearing on 9th June 2011, on

the ground that: –
The time between service of the said Motion on Notice on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30days.
2. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011, filed in Court the same day, improperly served on the 1st Defendant on 2nd June 2011 and fixed for hearing on 9th June 2011, on the ground that the time between the service of the said motion on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30 days.
3. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011 filed in Court the same day, fixed for hearing on 9th June, 2011 on the ground that two of the building, the subject matter of this suit, are situate in Rivers State and the honourable Court lacks the jurisdiction to entertain this Court.?

On the same 8th June, 2011 the Appellant filed another motion dated 6th June, 2011 praying the trial Court as follows: –

?1. AN

ORDER of Court setting aside or striking out this suit i.e. Suit No. HOW/133/2011 Chief Nnamdi Offiah & 2 Ors V Barr. Peter Offiah & Anor for the following reasons.
(i) The writ of summons which is for service outside Imo State and within Imo State was not marked CONCURRENT as required by the Sheriffs and Civil Process Act.
(ii) The honourable Court has no jurisdiction to entertain this suit for the reason that two of the buildings, the subject matter of this suit, are situate in Rivers State i.e. at No. 117 Old Aba Road, Rumubiakani Port Harcourt Rivers State and No. 16 Old Aba Road, Rumuomasi Port Harcourt, Rivers State.?

These two motions were taken together by the trial Court and determined in its ruling of 25-4-2012 wherein the trial Court found no merit in the two applications and dismissed them. Dissatisfied with this ruling, the Appellant filed this appeal.
The Appellant raised three issues for determination to wit: –
1. Whether the writ of summons is not defective.
2. Whether the 1st to 3rd Respondents motion on notice for interlocutory injunction is not incompetent.
3. Whether the Honourable Court has

the jurisdiction to entertain this suit.?

These issues were adopted by the 1st to 3rd Respondents. The trial Court in dealing with issue 1 set out above held that the writ of summons complied with S.97 of the Sheriffs and Civil Process Act. It went on to state that the claimant was not required to comply with S.98 of the said Act. S.98 reads: –
?A writ of summons for service out of the State or the capital territory in which it was issued may be issued as a concurrent writ with the one for service within such State or capital territory and shall in that case be marked as concurrent.?

How and why it came to the conclusion that this provision was not applicable in this case was not stated by the trial Court. What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. S.98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked ?concurrent.? In the instant case there was a clear breach of that section and the breach invalidated the writ that issued.

?On issue 2, it is

an accepted fact that the Appellant resides in Lagos. The offending suit was taken out of the High Court of Imo State. On 23-5-11 the plaintiffs who are 1st and 3rd Respondents filed a motion on notice at the trial Court seeking an interlocutory injunction restraining the Appellant from collecting rent and continuing to manage properties in the estate of Late Chief Greg I. Offiah pending the determination of the substantive suit. The motion paper set the date for hearing the motion as 9th June 2011. The Appellant on 6th June 2011 timeously filed a motion challenging the competence of the motion for injunction. S.95 of the Sheriffs and Civil Process Act requires 30 days between service and hearing of the motion on notice. As rightly stated by the trial Court and relying on the decision of the Supreme Court in Skenconsult (Nig) Ltd vs Secondy Ukey (1981) 1 SC.6, this non compliance with S.95 of the Sheriffs and Civil Process Act was a fundamental defect that went to the jurisdiction and competence of the trial Court. The Court however went on to rely on Universal Trust Bank Ltd vs. Dolmetsch Pharmacy (Nig) Ltd (2007) All FWLR (Pt 385) 434 to hold that as the

motion in question sought to protect that Res from dissipation, it was competent for the Court to hear the motion. This is a complete misapprehension of the judgment of the Supreme Court in the case of Universal Trust Bank v. Dolmetsch supra. The major difference was that in that case the motion was ex-parte. It was not a motion on notice and so the provisions of S.95 of the Sheriff?s and Civil Process Act was not applicable. The time element was not there. The claimants ought to have complied with S.95 of the Act and come by way of an ex-parte application for an interim order to protect the res. The trial Court was wrong in holding that the motion on notice was competent.

Issue 3 deals with the jurisdiction of the Court to entertain the suit when the properties involved are in both Imo and Rivers States. In Balogun vs. Agbara Estate Ltd (2007) L.P.EL.R 8784 Adamu-Augi JCA (as she then was) set out the position of the law thus:
?it is well settled that the High Court of a State has jurisdiction to entertain an action arising from the administration of the estate of a deceased person who died intestate notwithstanding that the letters

of Administration is in respect of the properties within the State while the estate includes properties outside the State.? See also Solubi vs Nwariaku (2003) 7 NWLR (pt819) 426, Amobi vs Nzegwu (2005) 12 NWLR (pt. 938) 120 and Okonyia vs Ikenga v Ors (2001) FWLR (pt53) 158. I need not say more.

This appeal succeeds in part. The writ of summons in Suit No. HOW133/2011 and the motion on notice for interlocutory injunction filed in the said suit on 23-5-2011 are hereby declared incompetent and the suit struck out.

Other Citations: (2016)LCN/8983(CA)

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSAIN, J.C.A.

This appeal is one of the several appeals emerging from the Judgment delivered at Federal high Court Holden in Abuja on the 27th June, 2015 in Suit No.FHC/ABJ/CS/71/2016 between DR. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS. Coram: Hon. Justice O. E Abang.

The 2nd respondent, the Peoples Democratic Party (PDP) had on the 8th December, 2014 organized and supervised the conduct of the PDP Primaries, the purpose of which was to elect the candidate for the Gubernatorial Elections for Abia State which was conducted on the 11th April, 2015. Members of the Peoples Democratic Party (PDP) who participated in the primaries as contestants include Sir Friday Nwanozie Nwosu, the appellant, Dr. Sampson Uchechukwu Ogah, the 1st respondent, and DR. Kezie Victor Ikpeazu, the 3rd respondent among others.

The 1st respondent had cause to raise issues generally relating to the conduct of the primaries and in particular the nomination of the 3rd respondent as the candidate for Governorship election on the platform of the Peoples Democratic Party.

Apparently not satisfied with the manner the People Democratic Party (PDP) hierarchy handled his complaints, the 1st respondent headed for the court where he commenced action on the 26th March, 2015 at the Federal High Court, Umuahia as plaintiff.

By the Originating Summons (as amended) filed, first as Suit No. FHC/UM/CS/94/2015 at the said court and now Suit No. FHC/ ABJ/CS/71/2016, the Plaintiff claimed several reliefs as set out in the Originating Process as amended. I will endeavor to reproduce those claims or the reliefs sought by him at the trial court especially so that parties have made references to the reliefs in their briefs of argument. The reliefs are reflected on the printed record of Appeal at pages 190-196 particularly pages 194- 196 thus:

(1) A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial election for Abia State conducted by the Peoples Democratic Party and her officers on the 9th day of December, 2014 which the Plaintiff, Dr. Okezie Ikpeazu (the 2nd defendant) and others participated as aspirants.

(2) A declaration that Dr. Okezie Ikeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8th December, 2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary election conducted pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act 2010 (as amended) and part IV, Article 14 (a) of the Peoples Democratic Party (PDP) Electoral Guideline 2014.

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic party Primary Election for aspirants to the gubernatorial election for Abia State on 8th December, 2014 are wasted votes, null, void and non of the defendants is entitled to act on the scores credited to Dr. Okezie Ikpeazu (the 2nd defendant) based on the said Peoples Democratic Party Primary Election which Dr. Okezie Okpeazu (the 2nd defendant) abinitio is not qualified to be nominated or participated in the said Primary Election.

(4) An order declaring the Plaintiff, (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic Party Election for aspirants conducted by the Peoples Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of votes cast for aspirants in which the Plaintiff, Dr. Okezie Ikpeazu and others participated as aspirants pursuant to section 87(4) (B) (i) and (ii) of the Electoral Act and Article 14 (a) of the Peoples Democratic Party Electoral Guideline for 2014.

(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast in the Peoples Democratic Party Primary election for gubernatorial aspirants in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the Gubernatorial election in Abia State for the 2015 general election schedule to take place on 11th April, 2015, pursuant to Section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and article 14 (a) of the Peoples Democratic Party Electoral Guideline 2014

(6) An order pursuant to section 87(4)B(i) and (ii) of the Electoral Act 2010 (as amended) and Article 14(a) of the Peoples Democratic Party Electoral Guideline 2014 for the 1st defendant (Peoples democratic Party) to submit the name of the plaintiff to the 3rd defendant (Independent National Electoral Commission) as the Gubernatorial candidate of People Democratic Party, in the gubernatorial election for Abia State in the 2015 general election schedule for 11th April 2015 and for the 3rd defendant (Independent National Electoral commission) to accept the name of the plaintiff as the candidate of the Peoples Democratic Party for the 2015 gubernatorial election in Abia State.

(7) An order mandating the 3rd defendant (INEC), pursuant to 87(4) B (ii) and 34 of the Electoral Act 2010 (as amended) to accept and to publish the name of the plaintiff as the candidate of Peoples Democratic Party for the gubernatorial Election for Abia State in the 2015 general election fixed for 11th April, 2015.

(8) In the event that the above suit is not determined before the conduct of the general election in 2015 to the gubernatorial Election for Abia State then a consequential order that the plaintiff is the candidate of the 1st defendant in the 2015 gubernatorial election in Abia state pursuant to Section 87 (4) B (i) and (ii) of the Electoral Act and article 14 (a) of the PDP Electoral Guideline 2014 is the person entitled to the Certificate of Return (in the event the election is won by Peoples Democratic Party) in the election for the office of Governor of Abia State fixed for 11th April, 2015.

(9) An order that the Certificate of Return for the election to the gubernatorial election for the Abia State in the event that the election is won by the 1st defendant (Peoples Democratic Party) be issued to the Plaintiff as well as all entitlements of the plaintiff as the elected Governor of Abia State of Nigeria upon a favourable determination of the above suit in favour of the plaintiff.

(10) A declaration that the information supplied by Dr. Okezie Ikpeazu in Form CF001 and sworn to by Okezie Ikpeazu in the affidavit submitted to the 3rd defendant (INEC) by the 2nd defendant) (Dr. Okezie Ikpeazu) pursuant to section 31 (2) of the Electoral Act 2010 (as amended) is false.

(11)An order pursuant to Section 31 (4) (5) and (6) of the electoral Act 2010 (as amended) disqualifying the 2nd defendant (Dr. Okezie Ikpeazu from contesting the gubernatorial election for Abia State as the candidate of the Peoples Democratic Party.

(12) AND upon the candidate of the Peoples Democratic Party, an order compelling the 1st and 3rd defendant to replace or forward the name of the Plaintiff as the candidate of PDP or the candidate of the People Democratic Party returned in the gubernatorial election for Abia State in the event the election is won by People Democratic party or order that the name of three plaintiff be the candidate of the 2nd defendant in the 2015 general election conducted, to be conducted or conducted by the 3rd defendant.

(13) An order that at all material times since the conduct of the Peoples Democratic Party Election on 9th December, 2014 to the date of delivery of the Judgment of this court, he remained and shall remain the candidate of the Peoples Democratic Party in the 2015 gubernatorial election

It is important to state here that the appellant at the inception of the case not a party to the proceedings at the Federal High Court, Umuahia. But following the order made on the 7th July, 2015 the appellant, Sir Friday Nwanozie Nwosu was joined as the 4th defendant to the Suit on the application earlier made by him. This application, a Motion on Notice is on the record at pages 98 – 110 of the printed record of Appeal.

As a consequence to the order joining the appellant the court below on the said date also made an order and directed on the 1st respondent to amend his originating papers ostensibly to reflect the appellant as a party and indeed as the 4th defendant to the Suit. The appellant like other defendants, upon the receipt of the Summons (as amended) contested the Suit and in the course of hearing, by way of Motion on Notice filed by him, he sought for an order striking out the suit on account of the same not being competent and the suit being an abuse of Judicial process in the light of the existence of the Suit which he said was earlier in point of time and filed by him as Suit No.FHC/OW/CS/191/2015 and which the 1st respondent was a party.

Those objections notwithstanding, the trial court overruled him and proceeded to deliver Judgment on the 27thJune, 2016 granting the prayers the 1st respondent had sought and the further made certain consequential orders as at pages 1312-1313 of the printed record, vol. 2 as follows:-

“1. Consequential orders is hereby made to give effect to the Judgment that the plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitled to the Certificate of Return in the election for the office of Governor of Abia State of Nigeria for the elections held on 11th April, 2015

It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3’d Defendant herein shall forthwith issue Certificate of Return to the Plaintiff Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlement to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State. Cost of N100,000.00 is hereby awarded in favour of the plaintiff payable by the defendants jointly and or severally I so hold”

Not satisfied with the decision or Judgment and order of the trial court, the appellant has appealed to this court. He filed three Notices of Appeal.

The first is the Notice of Appeal dated and filed on the 29th June. 2016, barely two (2) days after the delivery of Judgment. In it is incorporated 9 (nine) Grounds of Appeal with all the particulars of error or misdirection provided as per the printed record of Appeal at pages 1339- 1347, vol. 2.

The second, that is the Notice of Appeal dated the 11th July, 2016 and filed on the 12th July, 2016 is subsumed at pages 1-15 of the supplementary record of appeal transmitted to this court on the 25th July, 2016. The said Notice contains 17 (Seventeen) Grounds of Appeal together with their particulars.

The third Notice of appeal, also incorporated in the same supplementary record of appeal at pages 16-30, has 17 (seventeen) Grounds of Appeal and particulars. I will stop here for a while and resume later on the question as to which among the three Notices of Appeal, the appellant has relied on. This is in the light of the objection taken by counsel for the, 1st respondent. It suffices to say for now that briefs of argument were filed and exchanged wherein counsel formulated a number of Issues for determination in their respective briefs of argument.

In the brief of argument dated and filed on behalf of the appellant on 26th July, 2016 the following 5 (five) issues were distilled at pages 3-4 thus;-

Issue 1; Locus Standi

Whether in the circumstances of this case the learned trial Judge was wrong to hold that the 1st respondent has the locus standi to institute the suit at the lower.

Issue 2: Abuse of Court Process

Whether suit No.FHC/ABJ/CS/71/2016 filed on 26/3/2015 by the 1st respondent and Suit No. FHC/OW/CS/191/2015 filed by the Appellant on the 2nd March, 2015 and served on the 1st respondent on the 11th day of March, 2015 and on the 11th day March, 2015 are not between the same parties, the same subject-matter and on the same issue for the 1st respondent’s present suit to constitute an abuse of Court Process and thereby rendered it incompetent and deprived the trial court the Jurisdiction to entertain the Suit. Ground 1, 2, 3, 8 and 9.

Issue 3: Incompetence of the suit

Whether the amended Originating Summons filed on 9th October, 2015 and served on the appellant on 19th February, 2016 after the expiration of the time limited by law for filing and service of the said Originating process is incompetent and thereby deprived the trial Court of its jurisdiction to entertain the suit. Grounds 5, 10, 12, 13 and 17 Issue.

Issue 4: Estoppel and Waiver

Whether from the conduct, express writing and affidavit evidence of the 1st respondent which were placed before the trial court, the court below was wrong to overlook the issue of estoppels and waiver properly canvassed by the appellant against the 1st respondent and consequently enter judgment in favour of the 1st Respondent. Ground 4.

Issue 5: Award of cost

Whether the learned trial Judge was wrong to dismiss the Motion on Notice dated 12th February, 2015 and strike out the subsequent preliminary Objection filed by the appellant in the circumstance of this case and to award cost of N30,000.00 against the appellant on the ground that the Motions were without merit.

Although the 1st respondent similarly distilled 5 (five) issues at pages 8- 9 of his brief as arising for determination in this appeal, he has also raised some preliminary points of concern in the same brief

Issues identified by 1st respondent in his brief for determination in this appeal are:

Whether the Appellant who accepted the result of the Peoples Democratic Party primary election conducted on 8th December, 2014 for aspirants that participated in the gubernatorial primary election with name and score of the 1st Respondent contained therein is right to contend that the 1st Respondent had no locus standi to file Suit No. FHC/UM/CS/91/2015 now FHC/ABJ/CS/71/2016 (Ground 14 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
Whether the filing of Suit No. FHC/UM/CS/64/2015 later numbered as Suit No. FHC/OW/CS/191/2015 by the Appellant in which the 1st respondent is a party in an Originating Summons will stop the 1st Respondent from filing a suit (suit No. FHC/UMCS/64/2015 now suit No. FHC/ABJ/CS/71/2016) as an aspirant to the gubernatorial election and also pursuant to section 31 (5) of the Electoral Act 2010 (as amended) and whether Suit No. FHC/UM/CS/94/2015 now Suit No.FHC/ ABJ/CS/71/2016 constitutes an abuse of the process of the court; (grounds 1 2, 3, 8 and 9 based on speculation o that it is (the Notice of Appeal dated 14th July 2016 and filed on 15th July, 2016).
Whether the amended Originating Summons ordered on 7th October 2015 by the trial Court then sitting in Umuahia to be filed on 9th October, 2015 and which was filed on 9th October 2015 for which the Appellant filed a memorandum of Appearance on 5th November, 2015 was incompetent and deprived the court of jurisdiction to entertain the suit of the 1st Respondent (Ground 5, 10, 1, 12, 13 and 17 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
Whether the issue of estoppel and waiver raised by the Appellant against whom there was no claim by the 1st Respondent and who accepted the PDP primary election result conducted for aspirants who participated on 8th December, 2014 including the 1st Respondent was rightly rejected by the trial Court (Ground 4 of the Notice of Appeal speculated as dated 14th July on 15th July 2016).
Whether the award of cost upon the dismissal of the motion on Notice of the Appellant dated 12th February 2016 and for striking out the Preliminary Objection was wrong. (Ground 6 of the Notice of Appeal speculated as dated 14th July, 2016 and filed on 15th July, 2016).

The brief of argument filed on behalf of the 2nd respondent on 1st August, 2016 has only one (i) issue distilled for determination thus:-

“Whether the Appellant is entitled to a declaration that he was the 2nd Respondent’s candidate and the duly elected Governor of Abia State in the April, 2015 general election who should be issued with a Certificate of Return and sworn in as Governor.

The third respondent in the brief filed on his behalf on the 1st August, 2016 raised just 2 (two) issues for determination at pages 8-9, thus:-

(a) Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetent of the Originating Summons, estoppel, and waiver raised by the Appellant, whether the Lower Court had jurisdiction to entertain the case before it. Ground 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14 and 17 of the Notice of Appeal.

(b) Whether having regards to the case of the appellant before the Lower Court, this Honourable Court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of Appeal – Ground 15 of the Notice of Appeal. Like the 1st respondent, the 3rd respondent also raised some Preliminary Issues or Objection, but this time by way of a Motion on Notice dated and filed on 1st August, 2016

I will address the various objections in the course of this Judgment.

In the meantime the 4th Respondent who has not filed any brief of argument is by that stance deemed as not interested in the appeal or that he is deemed to have agreed to be bound by the outcome of the appeal. See: Sofolakan V. Chief Folakan & 12 Ors. (1999) 10 NWLR (Pt.621) 86, 95; Echere Vs. Ezirike (2006) 12 NWlR (Pt. 994) 386 Qr (2006) 5 SC (Pt. 1) 65.

The Appellant has filed a reply brief in response to the brief of argument for the 1st respondent served on him. The reply brief dated and filed on the 8th August, 2016.

The Appeal came up for hearing on the 9th August, 2016 and Parties were represented by their respective counsel. Messrs Alex A. Izinyon, SAN and Olabode Olanikpekun for the 1st and 3rd respondents respectively took turns to move the court and argue their Preliminary Objection and/or Motion on Notice, as the case may be.

Learned counsel for the 1st respondent, with reference to the Notice of Preliminary Objection already incorporated into his brief of argument at paragraph 3.0 brought into focus, the propriety of the three Notices of Appeal in one Appeal filed by the appellant and thus submitted that the Appeal case was incompetent in that the same was/is:

(1) Founded on three Notices of Appeal.

(2) That Ground 6 of the appeal and Issue No. 5 is as to award of Cost in the Appellant’s Brief of argument.

(3) The appeal is an abuse of right of appeal as there is no relief claimed against the Appellant by the 1st respondent in the substantive Suit, the subject of this appeal nor is there any award made against the appellant on the reliefs claimed against the 2nd, 3rd and 4th respondent by the 1st respondent. Arguments over these Heads of Objection are captured at paragraphs 4.0 to 4.12 of the 1st Respondent’s brief of argument.

Learned counsel for the 3rd respondent similarly raised issues which are preliminary in nature. By the Motion on Notice dated and filed on the 1st August, 2016 he prayed for an order:

” … striking out ground 15 and reliefs Vii, viii, x and xi of the Appellant’s Notice of Appeal dated 14th July, 2016 … ”

The said Motion on notice is predicated on the 6 (Six) Grounds listed in the Motion paper. There is also the supporting affidavit of 6 paragraphs and same was deposed to by Vanessa Onyemauwa, a legal Practitioner in the law Firm of Wole Olanikpekan & Coy.

Argument canvassed in support of these Preliminary Issues raised in the Motion paper are at paragraphs 3.0 to 3.9, pages 3 – 8 of the 3rd respondent’s brief of argument. It is worthy of mention that the appellant even though served with the Motion paper did not deem it fit to file a counter-affidavit or a written address in opposition to issues raised in the supporting affidavit. I believe there is the need to do so otherwise the admonition in Ajomale V. Yaduet (No. 2) [1991] 5 SCNJ 174, 184 is brought to play and the appellant will be deemed as having accepted those facts deposed to in the supporting affidavit as true. See further decisions in: Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Eze V. State (1985) 3 NWLR (Pt. 13) 429; Attorney-General of Plateau State V. Attorney General of Nasarawa State (2005) 4 SCNJ 120. 125. But such admission is with respect to facts only and not law.

I will now address those submissions made by counsel over the Preliminary points; thus:-

ON THE APPELLANT’S BRIEF OF ARGUMENT BEING INCOMPETENT

The submission made here is that the appellant having filed 3 (three) separate Notices of Appeal as indicated earlier in respect of the same decision or Judgment of the court below delivered on the 27th July, 2016 , the appellant in his brief of argument ought to have disclosed which among the 3 (three) Notices of Appeal he was relying on. This failure said the learned silk for the 1st Respondent rendered his brief of argument dated 25th July, 2016 and filed on the 26th July, 2016 incompetent as an abuse of court process the appellant having based his appeal and his brief of argument on multiple Notices of Appeal.

Learned counsel for the 1st respondent further submit that issues 1, 2, 3, 4 and 5 raised by the appellant in his brief of argument were not tied to any particular Notice of Appeal hence a brief of Argument cannot be used to address issues in 3 Notices of Appeal.

The Appellant filed a reply brief on the 8th August, 2016 in response to the brief of argument of the 1st Respondent served on him. In it he argued per contra relative to the t question on hand that Appellant’s brief of argument was competent, the appellant or his counsel having adopted and relied on the Notice of Appeal filed on 15th July, 2016 on the day this appeal came up for hearing that is on the 9th July, 2016. He argued that per chance there was any mistake or oversight or inadvertence of counsel to state in the appellant’s brief of argument that he relied on any particular Notice of appeal, the inadvertence has been overtaken when on the 26th July, 2016 he applied to withdraw the 2 (two) other Notices of Appeal and rely and adopt the Notice of Appeal filed on 15th July, 2016. Appellant’s brief of argument said to be abusive of Court process was filed on the 26th June, 2016, that is the same date his counsel applied to withdraw the 2 (two) other Notice of Appeal earlier filed by him and to rely and adopt the Notice of Appeal filed on the 15th July, 2016. This application for withdrawal was not opposed by counsel on the other side, in particular the counsel for the 1st Respondent. To the contrary, Dr. Izinyon, SAN applied for a date to file his brief of argument for the 1st respondent and this court accordingly granted his request and for him to file his brief of argument on or before 2nd August, 2016.

I think, the point should be made here and that is that on the 26th July, 2016 when the brief of argument for the appellant was filed, and the application made on his behalf to withdraw 2 (two) earlier Notices of Appeal, the 1st respondent in particular had not taken any step to file his brief of argument as to suggest that by the brief served on him by the appellant, the 1st respondent was misled to believe that the appellant relied on all the three Notices of Appeal filed by him.

The law is now trite that the person seeking to appeal against the decision given and which is not favourable to him can appeal that decision. In doing so he is at liberty to file as many Notices of Appeal as he so wish but at the date of hearing he can only rely on one of such Notices. See Tukur V. UBA (2013) 4 NWLR (Pt. 1343) 90; Tukur Vs. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39; Asheik V. Bornu State Government (2012) 9 NWLR (Pt. 1304) 1, 17. The apex court in Tukur V. UBA Plc. (supra) has held:

“There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the rules of court. But whenever there are more than one Notices of Appeal and the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon… ”

This choise came when on the 26th July, 2016, counsel for the appellant indicated his desire to rely only on the Notice of Appeal he filed on the 15th July, 2016 and not on the other Notices filed before them. Since the appeal did not come up for hearing until on the 9th August, 2016, the appellant or his counsel had done all that he needed to do relative to the three Notices of appeal filed by him before the date of hearing. Consequently I will overrule the 1st Respondent or his counsel on this Head of objection and I hold that the brief of argument filed on behalf of the appellant on the 26th July, 2016 (subject to any other issue that may arise in the course of this Judgment) is valid and competent. I so hold.

ii. OBJECTION TO GROUND 6 OF THE NOTICE OF APPEAL AND ISSUE NO. 5 THERETO ON AWARD OF COST.

It has been argued for the 1st Respondent that ground 6 in all the three Notices of Appeal filed by the appellant and Issue No. 5 derived therefrom which dwell on the issue of cost was incompetent so far as leave of court was not first sought and obtained to raise such ground on appeal. Learned counsel relied on the decision in Ukiri Vs. UBA Plc. (2016) 3 NWLR (Pt. 1500) 440, 457; Nwedike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ohuwole V. LSPDC (1983) 5 SC 1; A & S.B.C.O. (Nig.) Ltd Vs. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501, 521 and Sections 241 (2) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) to submit that the said ground 6 and Issue No. 5 were incompetent and he urged us to strike out same. But counsel for the appellant in his Reply brief at page 6 to 7 has argued that it is only in situations where the ground of appeal in the Notice is on the issue of cost only that prior leave of court can be sought and obtained. He argued that in this appeal case with 17 (seventeen) other Grounds of appeal, leave of court was not required merely because a ground of appeal on issue of cost is involved.

OPINION

I have read the authorities cited by counsel in their briefs of argument on this point. By Section 241 (2) (c) of 1999¢Constitution of the Federal Republic of Nigeria, appeal does not lie as of right against award 9f Cost by a Court. See Ukiri Vs. UBA Plc. (supra). Sub-Section 2 of Section 241 at paragraph (c) read:

“(2) Nothing in this Section shall confer right of appeal:

(a) ………………………………………………………………………..

(b) ……………………………………………………………………….

(c) Without the leave of the Federal High Court or the High Court or of the Court of Appeal, from a decision of the Federal High Court made with the consent of the parties or as to cost only”

The argument or the stance of the learned counsel for the appellant is that leave can only be sought and obtained where the issue of cost is the only ground presented in the Notice of appeal as the ground of appeal. This argument, with due respect to him is not sound and defies all legal reasoning. Once the issue of cost is presented as a Ground of Appeal whether as the lone or solitary ground in the Notice of Appeal or as a Ground of Appeal amongst a community of other grounds in the Notice of Appeal, the said Appeal or Notice of Appeal stands invalidated if as a lone ground, the Notice of Appeal is also invalidated in absence of any leave of appeal first being sought and obtained; and where the issue of cost is presented as a Ground of Appeal among a community of other grounds in the Notice of Appeal, the said ground only is invalidated on account of leave not having been sought and obtained to legitimize the ground of appeal on the issue of cost. So the issue of cost whether as a sole or lone Ground of Appeal in the Notice or as a ground amongst other grounds, it is imperative that the Appellant should first seek and obtain leave as a condition to the exercise of the Right of Appeal even in a final decision to which the appeal relate. In this case leave not having been sought to appeal on issue of cost it stands to reason that ground 6 of the Grounds of Appeal along with the particulars are incompetent and ought to be struck out. See: Adewunmi V. Oketade (2010) 8 NWLR (Pt. 1195) 63; Unitam Industries Ltd V. Oceanic Bank International (Nig.) (2008) 3 NWLR (Pt. 911) 83, 102. Sequentially all arguments canvassed thereto by counsel at or from page 24 of appellant brief relative to issue No. 5 derived from Ground 6 are equally incompetent and they suffer the same fate. No one can place something on nothing and expect it to stand. See: Macfoy V. U.A.C (1961) 3 All ER 1169 or (1962) A.C. 159. It will collapse, so is it with ground 6 and Issue No. 5 derived from it and arguments canvassed thereto, they are accordingly hereby struck out.

(iii) The third head of Objection raised in the 1st respondents brief is the complaint that the entire appeal is an abuse of the right of appeal, there being no relief claimed against the appellant herein by the 1st respondent nor any relief granted against him, in the suit filed by the 1st respondent. Arguing contrariwise learned counsel for the appellant submits that a right of appeal reside with the person against whom a decision is made or the decision is against his interest. He argued that the Appellant being an aspirant in the gubernatorial election where he sought to be nominated as the candidate of the 2nd Respondent (PDP) in the said primary election which is the subject matter in Suit No. FHC/ ABJ/CS/71/2015, the decision of which did not favour him, he is entitled to appeal against that decision.

The appellant herein was a party at the trial court in Suit No. FHC/ABJ/CS/71/2015 between Dr. Sampson Uchechukwu Ogah Vs. Peoples democratic Party (PDP) & 3 Ors. He contested that Suit as the 4th defendant even though joined to the suit upon his own application. It does not matter. He is still a party. Having therefore contested the suit as a party at the trial court, the right of appeal thus reside in him if at the end, the decision of the trial court was unfavorable to him and he needed to appeal against it, such person or persons cannot be shut out on account of the claim by the other person (s) stating that no relief was sought against him (appellant) at the trial court and no order affecting him was made by that court. To shut him out on this account is to deny him his right of appeal and right of hearing under Section 243 (a) read together with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

So as party to the Suit No. FHC/ABJ/CS/71/2015 at the court below, he is well qualified to appeal against that decision and be heard on issues arising from the decision in the exercise of his right to fair hearing. Even where he is not a party to the Suit, the person who can show that he has a legal interest in the subject-matter of the decision in the Suit now on appeal can with the leave of court duly sought and obtained appeal against such decision. See: Ademola Vs. Sodipo (1992) 7 SCNJ 417, 428. In the instant case, the appellant is not just a person interested in the subject-matter to which the appeal relates, he has been a party to the proceedings at the trial court and in exercise of his right of appeal can so appeal. See: Ezechukwu Vs. Madukwe (2011) LPLR-3772 (CA); CAN Vs. Labour Party (2012) LPELR-8003 (CA); Prof. Awojobi V. Dr. Ogbemudia (1983); Re Ugadu (1988) 5 NWLR 188, 203; Ikonne V. COP (1986) 4 NWLR 473. It is one thing for the litigant to exercise his right of appeal, while the validity of the complaint presented by him at the hearing of the appeal is another thing altogether. But to shut the litigant from presenting an appeal in a suit for which he is a party will at this stage translate to jumping the gun. It is like hitting the opponent below the belt and this is contrary to the rules of the game. In effect I overrule this head of the Preliminary Objection and dismiss same.

(iv) The next issue raised in this appeal as a Preliminary point is by way of the Motion on Notice filed on behalf of the 3rd Respondent, Dr. Okezie Victor Ikpeazu on the 1st August, 2016. I have before now in this discourse alluded to this application, the arguments of which are also canvassed in the 3rd respondent’s brief at page 3-8. The crux of the complaint or objection taken is discernible from the grounds upon which the application is predicated, and that are:

(i) That the Originating Summons before the Lower Court did not contain any question for determination relative to the status of the appellant as the candidate for the 2nd respondent.

(ii) There was no relief before the Lower Court seeking the declaration of the appellant as governor of Abia State.

(iii) The appellant did not file any counter-claim before the Lower Court.

(iv) Arising from (a) – (c) above, ground 15 of the Notice of Appeal does not arise from the Judgment of the Lower Court.

(v) There is no relief in the Notice of Appeal for the invocation of Section 15 of the Court of appeal Act.

(vi) Further to (e) above, this Honourable court lacks jurisdiction to grant relief vii, viii, x and xi in the Notice of Appeal.

Learned counsel for the 3rd respondent in his brief has argued that the reliefs contained in the appellant’s Notice of Appeal are reliefs Nos. vii, viii, x and xi are all connected to ground 15 of the Notice of Appeal.

Speaking of ground 15 learned counsel has argued that there was no issue distilled by him from ground 15 of the Notice of Appeal nor arguments canvassed in support thereto. Hence same was abandoned citing in his brief of argument the decision in Durago V. State (1992) 7 NWLR (Pr. 255) 525, 537; Chime V. Chime (1995) 6 NWLR (Pt.404) 734, 747; Sunday V. INEC (2008) All FWLR (Pt. 431) 985,997. It is further argued, in the light of the submission made as above that reliefs vii, viii, x and xi which he said are directly tied to ground 15 become merely academic in nature and ought to be struck out.

Learned counsel for the 3rd respondent further contend that ground 15 of the Notice of Appeal did not arise from the Judgment of the trial court and that same should be struck out citing in his brief of argument the decision in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156, 184. He argued by reference to the Originating Summons (as amended) and the appellant’s counter-affidavit in opposition to the Originating Summons and the brief of argument of the appellant, that there is in reference made in those processes as to the status and the entitlement of the Appellant to the Governorship seat of Abia State and this being the position, the appellant cannot now lay complain that the trial court was in error for failing to return him as the Governor of Abia State when no such relief was sought before the trial court. It is further argued that by the posture taken by the appellant, in seeking to reap where he did not sow, he was not being consistent in the manner he presented his case both at the trial court and in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248, 269 to submit that whereas at the trial court, his case strictly was that the suit before it was an abuse of the process of court, in this court, he is now seeking for an order to declare him, the Governor of Abia State. He argued that an appeal being a continuation of hearing, the appellant was not entitled to the reliefs sought by him in this court. He cited Ajide V. Kelani (1985) 3 NWLR (Pt.12) 248, 269; Adeleke V. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608, 690. It is further submitted that since the relief now being sought in this court was not sought at the trial court then this court lacks jurisdiction to grant same. He referred us to order 6 Rule 2 (1) of the court of Appeal Rules, 2011 and the decision in Akinbobola V. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270, 285 to urge us to reject/refuse his (appellant) request for an order of his declaration as Governor of Abia State. He urged us to strike out ground 15 and reliefs vii, viii, x and xi.

In relation to the Section 15 of the Court of Appeal Act, 2004 which the appellant has urged this court to invoke, learned counsel for the respondent in his briefs argued that this court cannot do so, so far as the relief was not sought for in the Notice of Appeal. He referred us to Apapa V. INEC (2012) 8 NWLR (pt. 1303) 409, 431. He urged us finally to grant his application and strike out ground 15 and reliefs vii, viii, x and xi in the appellant’s Notice of Appeal dated 14th July, 2016 and filed on 15th July, 2016.

OPINION

Permit me my Lords to observe here that although a reply brief was filed for and on behalf of the appellant on the 8th July, 2016 himself or his counsel did not deem it fit or necessary to respond to those very weighty submissions made by counsel for the 3rd respondent in his brief of argument at pages 3 – 8, paragraph 3. 0 to paragraph 3.9. dated and filed on the l 5t August, 2016. Appellant’s reply brief was filed on the 8th August, 2016. It seems to me that the appellant and/or his counsel care less about those submissions as perhaps, it adds nothing neither does it remove something from his case. This attitude of indifference as exhibited by the appellant or counsel on the issue on hand first became apparent when they neither challenged nor controverted the affidavit evidence to the Motion on Notice filed by the 3rd respondent on this point. A case of admission, you might say.

Be that as it may, I have observed, based on the brief of argument dated 25th July, 2016 and filed on 26th July, 2016 that there is no issue formulated or tied to ground 15 of the Notice of Appeal. No attempt was made in the appellant’s brief of argument to ventilate ground 15 of the grounds of Appeal by any issue. The Ground was just left bare, and standing on its own and this is deemed as having been abandoned. See Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC or (2008) 5-6 SC (Pt.83); Durago V. State (supra); Chime V. Chime (supra); Sunday V. INEC (supra). In Durugo Vs. State, the Supreme Court held:

“In an appeal, a ground of appeal filed on which no issue is formulated, and therefore no argument preferred in the brief of argument, will be deemed by the court as having been abandoned…”

The same court in another case further held in Pam V. Mohammed that:

“As Issue are formulated from ground of appeal, ground 4 which is not ventilated by any Issue is incompetent.” Per Tobi, JSC

A ground of Appeal is liable to be struck out where no issue is derived from it hence no valid argument can be canvassed.

Mr Olabode Olanikpekon, learned counsel for the 3rd respondent has in his brief of argument urged on the court to strike out reliefs vii, viii, x xi of the Notice of Appeal which he said are connected with or to ground 15 of the Notice of Appeal. I am contented, however, to stop here for now. The question whether or not the appellant is entitled to any of the reliefs claimed and in particular reliefs vii, viii, x and xi sought to be struck out should come up at the close of deliberations in this exercise, upon the Appeal being heard on the merit.

Issue similar to those canvassed by the 3rd respondent in his brief of argument relative to reliefs vii, viii, x and xi in the Notice of Appeal are also canvassed by the 3rd respondent in his brief of argument but not by way of an objection raised as a preliminary point but as a substantive matter or issue in the Appeal and his counsel, the learned silk, Dr. Onyechi Ikpeazu, SAN was heard over it.

I can now see the wisdom behind learned counsel’s preference to argue this point as a substantive issue in this appeal. He has his reasons and has so expressed himself at paragraph 5.01 of his brief of argument at page 7. He would not mind that in view of the complexity of this matter, the appeal is set aside. There is more to this, it seems. His grouse really relates to grounds 15 and 16 of the Notice and grounds of appeal only where the appellant in the said Notice has complained that he ought to have been declared the candidate of the 2nd respondent who won the Governorship election and who should be issued with a certificate of Return and be sworn in as the Governor of Abia State.

Respondents have in their own ways expressed their different views in the respective briefs of argument filed by them in response to this appeal and indeed on the reliefs now being sought as per the Notice of appeal. I can now direct my attention to the appeal proper.

The Appellant raised 5 issues for determination in his brief of argument and adopted same along with argument canvassed thereto at the hearing on the 9th August, 2016 to urge on the court to accede to his request and allow the appeal. The 1st, 2nd and 3rd Respondents similarly formulated issues in their respective briefs of argument which I have reproduced earlier in the Judgment.

However, after a thorough consideration of those issues vis-a-vis arguments canvassed by learned counsel, in their briefs, I form the opinion that the question of locus standi of the 1st respondent to present and institute the suit leading to this appeal, the question of the suit so instituted by him being an abuse of the process of court, incompetence of the Originating Summons, estoppel and waiver raised by the appellant, are issues or questions having direct relevance on the jurisdiction of the trial court to entertain the suit. In the light of this I form the opinion therefore that this appeal can be addressed and determined based on two (2) broad issues as done by the 3rd respondent or his counsel in his brief of argument at pages 8 – 9, paragraph 4.0 to 4.1 and accordingly I adopt same, namely:

Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.
Whether having regards to the case of the appellant before the Lower Court, this Honourable court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of appeal- ground 15 of the Notice of Appeal.

Argument on Issue No. 1

Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.

The appellant has canvassed issue No. 1 at page 5 to 24 of his brief of argument. Learned appellant counsel has argued relative to the question of the locus standi that the 1st respondent lacks it and could therefore not institute the suit as he did at the trial court in terms of Suit No. FHC/ABJ/71/2016 giving rise to this appeal having condemned, repudiated and rejected in writing the PDP Gubernatorial primary election held in Abia State on 8th December, 2014. That the 1st respondent having also refused to acknowledge and sign the result of the primary election he cannot be said he, participated in the PDP primary election. He relied on the unreported case of this Court in Orufa V. Josline Boluobo V. PDP & 2 Ors; Appeal No. CA/A/546/2012 of the 3rd September, 20113 and the decision in PDP V. Sylva (2012) 13 NWLR (Pt.1336) 85 to submit that the 1st respondent lacks locus standi. It is further argued by counsel for the appellant that by the way and manner the 1st respondent conducted himself at the PDP primaries, by the rejection of same, his refusal to sign the election result, his utter condemnation of the exercise, he (1st respondent cannot thereafter come to court to claim any right which he had waived by his conduct, writing and Oath. In reference to Section 169 of Evidence Act and decision in Obitude V. Oyesom Community bank Ltd (2014) 9 NWLR (Pt. 1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt. 280)126, 155; Attorney-General Nasarawa Vs. Attorney-General Plateau (2012) 10 NWLR (Pt.278) 638 ; Anor Vs. Elemo (1983) 14 NSCC 1. He submits that where one person has by his declaration, act or omission intentionally caused another person to be true and to act neither he nor his representative in interest can deny the truth of that thing. He relied on: Bakare V. Lagos State CSC (1992) 10 SCNJ173. Having thus waived his right he has lost same once the other side acts on the waiver, the party waiving his right is estopped to return to that which he had waived. It was urged on the court to hold that the 1st respondent had waived his right.

Learned appellant’s counsel has further urged us to hold that the suit filed by the 1st respondent as Suit No. FHC/ ABJ/CS/71/2016 was an abuse of court process in that as at the time the suit was filed there was already in existence another suit on the same subject-matter and for which the 1st respondent was/is a party as defendant who filed his defence to suit that is No. FHC/ ABJ/CS/184/2015 and later, FHC/ ABJ/CS/64/2015 now FHC/OW/CS/191/2015 between Nwosu Vs. PDP & 3 Ors. He urged us to hold therefore that the Suit instituted by the 1st respondent, now Suit No. FHC/ ABJ/71/2016 is an abuse of court process. He cited and relied on Ntuk & Ors Vs. NPA (2009) 13 NWLR (Pt. 1051) 392, 419; Lokpobiri V. Ogola (2015 11 SCNJ 71; Amefale V. State (1988) 2 NWLR (Pt. 75 156, Edet V. State (1988) 4 NWLR (Pt. 191) 7222; African Reinsurance Corporation Vs. IDP Construction Nigeria Ltd (2003) 5 SCMJ 104, 121 among other.

Learned counsel further submits that when the facts enumerated on the counter-affidavit of the Appellant at the trial court are juxtaposed with the court’s process, exhibits marked and attached as exhibit A, B- B1 as D-02 and E- E1 as at pages 860-1020 of the record of appeal, Vol. 2, it becomes apparent, that the instant case of the 1st respondent before the trial court and now this court is an abuse of process. He urged us to disallow this abusive nature of the suit leading to this appeal in the light of the 1st respondent herein being the defendant in the earlier suit filed by the appellant between the same parties on the same subject- matter, on the same issue and for the same relief. He cited ACB v. Nwaigwe & Ors. (2011) 1-2 SC (Pt. 11) 67.

On the question of the suit at the trial court being incompetent, learned appellant’s counsel submits among others with respect to the failure of the 1st respondent to timeously effect consequential amendments to his originating Summons, and serve same on the appellant rendered the amended process incompetent more so that the same was neither signed nor stamped and sealed by the 1st respondent. That the originating Summons served on the appellant was filed out of time and served out of time to oust the jurisdiction of the trial court erroneously held otherwise. He urged us to hold that the originating process was incompetent and he referred to the decision in Madukolu V. Nkemdilin (1962) 2 All NLW 588, 992; lhedioha V. Okorocha (2016) 1 NWLR (Pt.1492) 1471, 156- 157.

The response of the 1st respondent are at pages 8-25 of his brief of argument. The 1st respondent has debunked those submissions of the appellant at pages 8- 25 of his brief of argument. First as regards locus standi of the 1st respondent, learned counsel referred us to paragraph 1 and 30 of the affidavit in support of the originating process not only to show that the 1st respondent is a member of Peoples Democratic Party (PDP) who as an aspirant participated in the primaries held on 8th December, 2014 but obtained 103 votes in that election. In further reference to Issue formulated for determination and the reliefs sought the 1st respondent by the Originating Summons filed by him, he argued that all these facts conferred on the 1st respondent the locus standi to institute the suit as he did at the trial court.

Learned counsel for the 1st respondent therefore submits with regard to Section (4) B (i) and (ii) and Section 87 (9) of the Electoral Act that the 1st respondent has locus standi, a fact which he said the appellant cannot deny. In furtherance of this submission counsel referred us to Section 31 (5) of the electoral Act. This provision he said, allowed any person to go to court in the circumstances provided therein. He argued that either by Section 87 Or 31 (5) of the Electoral Act, the 1st respondent has the locus standi to institute the suit as he did at the court. In support of his contention he relied on Albion Construction Ltd V. Rao Investment & Property Ltd (1992) 1 NWLR (Pt. 219) 583, 598; Adefulu Vs. Oyesila (1989) 5 NWLR (Pt. 122) 377; Thomas V. Olufosoye (1986) 3 NWLR (Pt. 18) 669; uwazuruike Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, 530; Ukachukwu vs. PDP (2014) 17 NWLR (Pt. 1435) 134, 201; Ekegbara V. Ikpeazu (2016) 4 NWLR (Pt.1503) 411, 439. Learned counsel for the 1st respondent in his brief sought to distinguish the case of Orufa Josline Boluoso V. PDP & 2 Ors. (Unreported) Appeal No.CA/A/146/2012 of 3rd September, 2013 and the case of PDP V. Sulva (2012) 13 NWLR (Pt. 1316) 85 for the current case on appeal where as in the former it is argued that the 1st respondent did not participate in the primaries in relation to the question of abuse of process of court as alleged by the Appellant, the 1st respondent has submitted that the filing of suit FHC/ ABJ/71/2016 by him as an aspirant cannot constitute abuse of process while in pursuance of the right given to him pursuant to Section 87 (9) and 31 (5) of the Electoral Act (as amended). He cited Akhigbe V. Panlosa Nig. Ltd (2006) 12 NWLR (Pt.994) 373; Oregbede V. Onitiju (1962) 1 All NLR 32; Obala of Oten-Anyebayi v. Adesina (1992) 2 SCNJ 118. It is further argued that section 6 (6) (a) [b] of the 1999 Constitution enabled the 1st respondent to go to court and nothing can stop that, not even the appellant. He cannot stop anybody who has reasonable information that the document submitted by any candidate to an election was false from going to court to so state. Pursuant to Section 131 (5) of Evidence Act

Learned counsel further debunked the suggestion that the suit filed by the 1st respondent had the same parties, subject-matter and issues as the suit previously filed by the Appellant. If anything it is contended that the suit filed by the appellant has as the subject-matter, forgery of a Certificate pursuant to Section 182 (1) of 1999 Constitution whereas the suit filed by the 1st respondent was anchored on Section 87 (4) (B) (i) and (ii) of the Evidence Act and Section 31 (S) of the same Electoral Act. He argued that the Appellant has not made out a case of abuse of court process as alleged.

On the complaint that the Amended Originating Summons was neither signed nor filed timeously as ordered by the trial court, learned counsel for the 1st respondent arguing per contra by reference to the Order made at the trial court on 7th October, 2015 by which order the 1st Respondent was directed to file his amended Originating Summons on or before 9th October, 2015. Learned counsel contends that the order of the trial court was complied with when on the 9th October, 2015 he filed his amended Originating Summons and caused same to be served on the Appellant. Consequent upon the process being served, the appellant entered a memorandum of appearance on the 5th November, 2015. To this end it is argued that the claim by the Appellant that he was not served with the Originating Summons until in April, 2016 was utter falsehood.

On the question of lack of signature on the Amended originating Summons served on the Appellant, was cured by the service on the appellant of a signed copy of the Originating Summons notwithstanding the other service which concede the appellant to file a memorandum of appearance on 5th November, 2015.

On the contention of absence of seal of counsel who prepared the originating Summons, he argued that this defect was cured by the Motion made to affix stamp and seal of counsel and this was not opposed by the appellant.

On the Issue of estoppel and waiver, counsel for the 1st respondent has argued that the appellant cannot rely on his letter of his protest over the conduct of PDP primary elections to contend that the 1st respondent has waived his right and cannot therefore claim any right arising from those primaries. He argued that by the said letter of protest, the 1st respondent was only exploring the internal dispute resolution mechanision which he said was a condition precedent to a suit being instituted. Relying therefore on Aribisale vs. Ogunyemi (2005) 6 NWIR (pt. 921) 212, 21-232; Omahiko V. Awachie (2002) 12 NWLR (Pt. 780) 1; Ogologo V. Uche (2005) 14 NLR (Pt.945) 226, 245 he argued that an aspirant who participated in the primaries and whose score in the said primary election was released cannot be said has waived his right relative to that election and thus is estopped from litigating any action pursuant to section 87 (9) and 31 (5) of the Electoral Act as amended. He argued that it is his complaint against the conducts of the elections that gave rise to his cause of action not the acceptance of the result of primaries. He argued that in law estoppel, waiver and conduct are used as a shield to defend an action against a party hence the Appellant against whom no relief was sought cannot rely on the defence of estoppel and waiver to stop the 1st respondent from claiming any relief against the appellant. Learned counsel therefore urged on the court to dismiss the appeal.

The 2nd respondent in his brief of argument took sides with the appellant on those points wherein his counsel in agreeing with the appellant argued that:

(i) The trial judge was wrong to hold that the 1st respondent had the requisite locus standi to institute the action.

(ii) The trial Judge was wrong to hold that the amended originating Summons is competent the same not having been filed within the requisite or penalty paid default; and

(iii) The trial Judge was wrong to dismiss Appellant’s Motion dated 12th February, 2016.

The third respondent in his brief like the 2nd respondent similarly agree with the appellant and that the decision of the trial court in unsupportable regarding the issue of locus standi, abuse of court process, incompetence of the suit before that trial court and the conduct of the 1st respondent relative to the PDP Primary elections, constitute a waiver hence the 1st respondent was estopped from any claim fright over those primary elections.

The Appellant filed a reply brief on the 8th August, 20116 in response to the 1st respondents brief of argument. I have noted the points raised by him in his reply brief I will now proceed to state my view on the submission made by counsel.

OPINION

I will first address the Issue of locus standi of the 1st respondent to institute the suit as he did and in doing that it must be appreciated that the term locus standi simply denotes the legal capacity that the plaintiff has to institute proceedings in a court of law. It is used interchangeably with terms like “standi” or “title to sue”, thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or in the alternative if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on facts of each case. See: Adesanya V. President, Federal Republic of Nigeria (1981) SC 69; Akinfolarin V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 61/ Omadunni Vs Regd. Trustees (2000) 6 SCNJ, 417. It follows therefore that when the locus standi of the Plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff, the 1st respondent in this appeal case, who instated action as plaintiff at the court below by way of the Amended Originating Summons filed by him and as reflected at pages 725 – 741 of vol. 2 of the printed record of Appeal;. The Originating process is thus, the Cynosure of the exercise. See: Dissu Vs. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government Vs. Sestisione H. Nigeria Ltd (2012) LPEL-893C. (CA). In the affidavit deposed to by the 1st respondent himself in support of the amended Originating Summons indicate very clearly at paragraphs 1 and 2 that he is a member of the Peoples Democratic Party who participated as an aspirant in the Peoples Democratic Party Gubernatorial Primary Election for the elective office of Governor of Abia State. That the gubernatorial primaries were held on the 8th December, 201. Again by the reliefs sought by him, at pages 729 – 731 particularly reliefs No. 1, 4, 5, 6, 7, 8, 9, 12, 13 the 1st respondent as plaintiff, did not only place himself in the epic centre of the exercise but said he was an aspirant who participated in the primary elections of PDP held on the 8th December, 2015 wherein by the results of the primary elections declared, the following score were recorded against the names of each contestant or aspirant who participated in that exercise. That is to say:-

NAME OF ASPIRANTS VOTES SCORED

IHEANACHO OKEZIE 1
MARKWABARA 3
CHIEF (Dr.) OKEZIE IPKEAZU 487
OKEY EMUCHEY 3
ACHO NWAKANMA 5
DR. UCHE OGAH 103
EMEKANWOGU 33
BARRISTE FRIDAY NWOSU 3

See paragraph 30 of the affidavit in support of the amended originating Summons at page 737 of the record.

So what greater evidence is there to show that the 1st respondent has locus standi especially considering that those facts were not controverted at the trial court nor denied in this court at the hearing of the appeal? The contention by the Appellant that 1st respondent had rejected the Primary and repudiated his interest in that exercise are to my mind, a different kettle of fish. Such alleged rejection or repudiation does not distract from the fact that the 1st respondent participated in the exercise leading to the nomination of a candidate for the gubernatorial elections. This brings to mind the provision at Section 87 (9) and 31 (5) of the Electoral Act. Section 87 (9) provides thus:-

Notwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the high Court of a State for redress.”

This provision came up for interpretation or consideration in Emenike V. PDP (2012) All FWLR (Pt. 1640) 1261; PDP Vs. Sylva (20120 13 NWLR (Pt. 1316) 85. The apex Court in Ardo V. Nyako (2014) All FWLR (Pt. 744) 130, 160 held:

Under the said Section 87 (9), an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this court, is the one who complain that any of the provision of the Electoral Act and the guideline of a political party has not been complied with in the selection or nomination party for election”

See further the decisions in Uwazuirike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206, 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.

Issues formulated for determination at the trial court set out at pages 726- 728 of the printed record. It is my view that the 1st respondent is not only a member of the Peoples Oemocratic Party, he was an aspirant in the 8th December, 2014, Gubernatorial primaries of the PDP, having participated in those primaries and thus has the locus standi to maintain the action as he did. See PDP Vs. Sylva (supra). I am satisfied that the 1st respondent has, from the facts and evidence on the printed record before us, has brought himself within the meaning of Section 87 (9) of the Electoral Act to fortify him with the locus standi that he needed to approach the trial court as he did pursuant to Section 31 (5) of the Electoral Act.

On the issue of abuse of process of court by the 1st respondent by dint of the suit filed by him and as Suit No. FHC/ABJ/CS/71/2014 leading to this appeal, again I find no substance in this complaint.

What constitute an abuse of court process has been a subject of imprecise definition. In Saraki Vs. Kotoye (1992) 11/12 SCNJ -26 the concept of abuse of judicial process was held to involve:

“Circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of judicial process by a party in litigation to interfere with due administration of justice.”

The court in Saraki’s case (supra) was however quick to add that it amount to setting a higher standard to insist that the exercise of a constitutional right of appeal was an abuse of court process if the exercise of that right was likely to delay the hearing of the substantive action to conclusion. I felt I can draw this analogy from the decision referred to above. Would a person who is aggrieved with the outcome of a Process be denied access to court where he can ventilate his grievances on account of the existence of the suit filed by the other person arising from the same process. Concept of abuse of judicial process should, I think be applied with some measure of caution so as not to curtail the exercise of right of access to court by the individual, especially where the law or statute so provide. As for instance section 31 (5) of the Electoral Act enjoins:

“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High court against such person seeking a declaration that the information contained in the affidavit is false.

I want to believe and I so hold that the suit or action commenced by the 1st respondent was predicated on this provision among others. In any case the courts under the constitution of the Federal Republic of Nigeria, 1999 as amended, are vested with judicial powers under Section 6 of the said Constitution and the exercise of those powers:

“extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the Civil right and obligations of that person.

See: section 6 (6) [b]of the Federal republic of Nigeria, as amended. Thus the courts ab initio in the exercise of their judicial powers can entertain action brought by persons in the likes of the 1st respondent.

Although the appellant and the 1st respondent found themselves in the same PDP boat and as Co-contestants or aspirants in the PDP Primaries held on the 8th December, 2014, they each retained their individual aspiration in the quest for nomination as the flag bearer of the party for which each one of them is a member. Consequently any one contestant who felt there was a flaw in the process, such flaw gives him right of action. This is my understanding of the Suit brought at the trial court by the 1st respondent and such does not constitute an abuse of judicial process.

The Issue of waiver and estoppel was canvassed most vigorously by the appellant in his brief of argument wherein it is contended by him that the 1st respondent having rejected the primaries and repudiated his interest therein, even in writing, he has waived everything that he has with that exercise and is estopped from any claim of right over that (primary) election. The concept of waiver and estoppel to my mind is much more than what the appellant thought it is, on the facts presented by him.

Before I go any further, you will permit me my lords to say that the concept of WAIVER is akin to acquiescence, like election; it presupposes that person to be bound is fully cognizant of his right but neglects to enforce them, or chooses one benefit instead of another, either, but not both of which he might claim. See Ikechi Olue Vs. Obi Enenwali & Ors. (1976) All NLR 70 Or (1976) 2 SC 12. What a party relying on waiver must prove is ¢that the other party well knew of the existence of the misfeasance and despite this knowledge unequivocally accept it. See: Haightons (W.A.) Ltd Vs. Ajao & ors (1975) 1 SC (reprint) 8. Therefore if the party by conduct leads another to believe that the strict right arising under a contract will not be insisted upon, intending that the other should act on that belief, and he does act or it, then the first party not afterwards be allowed to insist on the strict right when it would be inequitable for him to do so. Se: united Cababer Co. vs. Elder Dempster Lines Ltd. (1972) All NLR 682 Or (1972) 8- 9 SC 31.

One fact which is very much prominent in the application of the principle of WAIVER is the existence of an agreement or contract between two or more parties or person as would lead the other party relying on the conduct of the person waiving his right to shift position. In that case there can be no return to a claim of right by the person who waived it. So, from the facts presented in this case on appeal unless it can be shown there is no such fact or evidence) that there is an understanding or some agreement of same sort between the 1st respondent and the appellant that the former has waived his right relative to the primaries held on the 8th December, 2014 then there is a misapplication of the doctrine. The case of the Attorney-General of Nasarawa State vs. Attorney-General of Plateau State (2012) 3 SCNJ 273 cited by the appellant in his brief has made this point abundantly clear and same does not support his stance. Ditto Obitude V. Onyesom Community Bank Ltd (2014) 9 NWLR (Pt.1412) 352, 382; Ehidimhen V. Musa (2000) 8 NWLR (Pt.280) 126. Those are the circumstances that would constitute waiver and estoppel under Section 169 of the Evidence Act, 2011. The other person or party relying on the conduct of the party making it must believe in the truth and act on the belief of the Statement or the conduct of the person making that representation.

The appellant has claimed that the 1st respondent rejected the primaries and refused to sign the result sheet and rather walked away. There is however evidence that the Appellant accepted the result of the Primaries and signed it. This is even in addition to the fact that there was neither an understanding nor an agreement between the 1st respondent and the Appellant to commit the latter to his actions. There is no such agreement.

Again it was contended that the mere fact of rejection of the primaries by the 1st respondent revealed his disinterestedness on the exercise. How else is it supposed to be if not as done by the 1st respondent to express himself, and to ventilate his grievances the way he did. It is natural to do so in all human setting such as the primaries of the PDP where shades of interest were represented. That is why the legislature in recognition of this human element in us employed the word “complains” under Section 87 (9) of the Electoral Act. Hence without such complaints there can be no realistic cause of action. It is my view therefore that the person who by his actions or conduct has expressed his disapproval of a process stands to be reckoned with first and above the person who merely accepted that process without laying any complaints.

Again I do not find any merit in this submission of the learned counsel for the appellant. Further on this jurisdictional Issue is the point raised as to the process Originating the suit being incompetent relative among others to:

(i) The Originating Summons not being signed and stamped and sealed.

(ii) The Amended Originating Summons not being filed within time in absence of any application legitimizing the process.

With respect to the first that is non-signing of the Originating Summons (as amended), such ordinary will nullify the process and proceedings built or founded on that process because the absence of signature on an Originating process is a fundamental vice and this goes to the root of the action without which an originating process is liable to be struck out since a person’s signature, written names or mark on a document, not under seal, signifies the authentication of that document that such a person holds himself out as bound or responsible for the contents of that a document. See: Adefarasin V. Dayekh (2007) 11 NWLR (Pt. 1044) 89; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461, 480-481; SLB Consortium Ltd Vs. NNPC (2011) 9 NWLR 317. Bode Rhodes- Vivour, JSC in his contributory Judgment held:-

“What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process it is incurable bad it is incurably bad and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (I. E. legal Practitioner’s Act). All processes filed in court are to be signed as follows:-

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

Secondly, the name of counsel clearly written.

Thirdly, who counsel represent.

Fourthly, name and address of Legal Firm”

The second point raised under thus sub-head is that the 1st respondent’s Originating Summons was served on the Appellant belatedly on the 19th day of February, 2016 and that is outside the time decreed by the trial Court. In his brief of argument at page 22 the 1st respondent’s brief of argument it is submitted that the allegation that the appellant was served on the face of the memorandum of appearance filed by the appellant on 5th November, 2015, contradicted the contention of the appellant as to service on the appellant in February, 2016. That the service February, 2015 was effected out of excess of caution as to avoid waste of time and the necessary appeal over service of court processes. That the complaint that the copy served on the appellant was not signed was cured by the service on the appellant of another signed copy of the Amended originating Summons notwithstanding the service on the appellant that caused the appellant to file Memorandum of appearance on 5th November, 2015. That the contention on the absence of seal of counsel that prepared the originating Summons was cured by the Motion to affix the stamp which not opposed by the appellant.

In response to this submission the appellant in his reply brief said the process he filed on 5th November, 2015 was a conditional appearance and not that he was served with the Amended originating Summons.

So, the question arises as to why the Appellant entered appearance on the 5th November, 2015 if he was not served the originating summons viewed from the background that order 7 rule 1 (i) of the Federal High Court (Civil procedure) Rules 2009 require of the defendant on whom an originating process was served to enter appearance within 30 days from the date of service on him. This point was not addressed by the appellant in his reply brief neither did he deny that he entered such appearance. Could he have entered appearance without service on him of the Originating Process? That is the question. I think not.

The second point is as regards signature not having been appended on the Originating Process and also the stamp and seal of the Nigerian Bar Association not having been fixed or affixed on that Process.

Without much ado on this, a look at the amended originating Summons dated 2nd October, 2015 and filed on 19th October, 2015 particularly at page 196 of the printed record of Appeal is sufficient to prove to all doubting thomases that indeed the Originating process was signed by one O.J. Nnadi, Esq, SAN, and also stamped with the stamp of the Nigerian Bar Association stamp bearing the name of counsel referred to above. So it is not correct to say that the amended process was not signed as alleged by the appellant or his counsel. In the same vein it can be discerned ex facie that the originating process was assessed and paid for on the 19th October, 2015 as evidenced by the cashier’s stamp at page 190 of the printed record of appeal.

In the light of all the foregoing in this discourse I resolve issue No. 1 in favour of the 1st respondent and against the appellant.

Issue No.2

Whether having regards to the case of the appellant before Lower Court, this Honourable has the jurisdiction to grant reliefs Vii, Viii, x and xi in the Notice of Appeal.

Issue No 2 as couched and reproduced as above is common to the second and third respondents who raised it and canvassed same in their respective brief of argument. The question of appellant entitlement to the reliefs sought by him in his Notice of Appeal dated 14th July, 2016 and filed on the 15th July, 2016 was neither canvassed by him in his brief on the 26th July, 2016 nor his reply brief dated and filed on the 8th August, 2016.

In the brief of argument filed behalf of the 2nd respondent on the 1st August, 2016 it is argued that the appellant was/is not entitled to the reliefs sought by him in his Notice of Appeal. His reason being that grounds 15 and 16 under which the reliefs as sought were not covered by nor were issues distilled form any of those grounds for determination of court. He relied on Ministry of Education Anambra State Vs. Asikpo (2014) NWLR (pt. 1427) 351, 373 to submit that grounds 15 and 16 are been abandoned and same is struck out along with the reliefs 4 (vii), (Viii), (x) , (ix) as well as argument canvassed thereto in the brief of argument for the appellant at paragraph 6.03.

Learned counsel for the 2nd respondent in reference Vii, viii, x and ix in the Notice of Appeal has argued that prayers Vii and vii are twin pillars on which orders in prayers x and xi are founded but he further argued that those relief claimed by the appellant at the trial court. Secondly, he argued that the relief being declaratory in nature must specifically be claimed by the appellant at the trial court. It is further argued by him that the appellant even though the 4th defendant at the trial court he did not file a counterclaim in this regard to entitle him to any of the reliefs now being claimed in this court as per reliefs Vii, Viii, x and xi. The submission made by counsel for the 4th respondent is along the same direction.

OPINION

In his Notice of Appeal filed on 15th July, 2016 the appellant has sought a number reliefs and for ease of reference I will reproduce the reliefs relevant to the issues on hand namely: vii, viii, x and xi as follows:

“vii. A Declaration that the Appellant was the rightful Gubernatorial Candidate of the 2″d Respondent (PDP) in the 2015 general election by virtue of the 8th December, 2014 2nd Respondent’s (PDP) . Gubernatorial Primary election in Abia State.

viii. A Declaration that the Appellant is the duly elected Governor of Abia State by virtue of the governorship election held in Abia State in April, 2015

x. An order that the Appellant be issued with a Certificate of Return as the duly elected Governor of Abia State by the 4th Respondent.

xi. An order that the Appellant be sworn in as the Governor of Abia by the Chief Judge of Abia State or any other relevant Chief Judge or Judicial officer”

The appellant was the 4th defendant at the trial where he contested the suit filed by the 1st respondent as the plaintiff in suit No.FHC/ABJ/CS/71/2015 but as 4th defendant he fell short of entering a counter-claim in the nature of the reliefs now being sought by him in this court vide his Notice of Appeal. Having thus not filed any counter-claim he had not also led any evidence in that regard at the trial court. Every appeal is a continuation of hearing. Where therefore necessary foundational framework was not laid at the trial court by way of evidence led to put issues in proper perspectives at that court, it will be too late to raise those issues at the appeal Court and even if raised, the appellate court will have no jurisdiction to entertain such issue or claim as in this case, of the reliefs now being sought. See Osuji Vs. Ekeocha (2008) 16 NWLR (Pt. 1166) 81 (SC); Sabru Motors Nig. ltd Vs. Rajah Enterprise (2002) FWLR (Pt.116) 841; UBA Plc. Vs. Mustapha (2004) 1 NWLR (Pt. 855) 443; Lagga V. Salhuan (2009) All FWLR (Pt.455) 1617; Ngige V. Obi (2005) NWLR (Pt.999). Such will amount to raising fresh issues on appeal but an Appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a Lower Court without leave of the court being obtained. In the instance case the appellant had not sought leave of this court to canvass issues by way of the prayers Vii, viii, x and xi in the Notice of the Appeal. Hence those reliefs are struck out afortiori Grounds 15 and 16 the Notice and Grounds of Appeal hence Issue No. 2 is accordingly resolved against the appellant.

On the whole therefore this appeal fails and same is dismissed. I assess cost in the sum of N100,000.00 against the appellant and in favour of the 1st respondent.

Other Citations: (2016)LCN/8982(CA)

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SAIDU TANKO HUSAIN, J.C.A.

It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3’d Defendant herein shall forthwith issue Certificate of Return to the Plaintiff Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlement to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State. Cost of N100,000.00 is hereby awarded in favour of the plaintiff payable by the defendants jointly and or severally I so hold”

Not satisfied with the decision or Judgment and order of the trial court, the appellant has appealed to this court. He filed three Notices of Appeal.

In the brief of argument dated and filed on behalf of the appellant on 26th July, 2016 the following 5 (five) issues were distilled at pages 3-4 thus;-

Issue 1; Locus Standi

Whether in the circumstances of this case the learned trial Judge was wrong to hold that the 1st respondent has the locus standi to institute the suit at the lower.

Issue 2: Abuse of Court Process

Issue 3: Incompetence of the suit

Issue 4: Estoppel and Waiver

Issue 5: Award of cost

Issues identified by 1st respondent in his brief for determination in this appeal are:

Whether the Appellant who accepted the result of the Peoples Democratic Party primary election conducted on 8th December, 2014 for aspirants that participated in the gubernatorial primary election with name and score of the 1st Respondent contained therein is right to contend that the 1st Respondent had no locus standi to file Suit No. FHC/UM/CS/91/2015 now FHC/ABJ/CS/71/2016 (Ground 14 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
Whether the filing of Suit No. FHC/UM/CS/64/2015 later numbered as Suit No. FHC/OW/CS/191/2015 by the Appellant in which the 1st respondent is a party in an Originating Summons will stop the 1st Respondent from filing a suit (suit No. FHC/UMCS/64/2015 now suit No. FHC/ABJ/CS/71/2016) as an aspirant to the gubernatorial election and also pursuant to section 31 (5) of the Electoral Act 2010 (as amended) and whether Suit No. FHC/UM/CS/94/2015 now Suit No.FHC/ ABJ/CS/71/2016 constitutes an abuse of the process of the court; (grounds 1 2, 3, 8 and 9 based on speculation o that it is (the Notice of Appeal dated 14th July 2016 and filed on 15th July, 2016).
Whether the amended Originating Summons ordered on 7th October 2015 by the trial Court then sitting in Umuahia to be filed on 9th October, 2015 and which was filed on 9th October 2015 for which the Appellant filed a memorandum of Appearance on 5th November, 2015 was incompetent and deprived the court of jurisdiction to entertain the suit of the 1st Respondent (Ground 5, 10, 1, 12, 13 and 17 of the Notice of Appeal) speculated as dated 14th July, 2016 and filed on 15th July, 2016.
Whether the issue of estoppel and waiver raised by the Appellant against whom there was no claim by the 1st Respondent and who accepted the PDP primary election result conducted for aspirants who participated on 8th December, 2014 including the 1st Respondent was rightly rejected by the trial Court (Ground 4 of the Notice of Appeal speculated as dated 14th July on 15th July 2016).
Whether the award of cost upon the dismissal of the motion on Notice of the Appellant dated 12th February 2016 and for striking out the Preliminary Objection was wrong. (Ground 6 of the Notice of Appeal speculated as dated 14th July, 2016 and filed on 15th July, 2016).

The brief of argument filed on behalf of the 2nd respondent on 1st August, 2016 has only one (i) issue distilled for determination thus:-

The third respondent in the brief filed on his behalf on the 1st August, 2016 raised just 2 (two) issues for determination at pages 8-9, thus:-

I will address the various objections in the course of this Judgment.

The Appellant has filed a reply brief in response to the brief of argument for the 1st respondent served on him. The reply brief dated and filed on the 8th August, 2016.

(1) Founded on three Notices of Appeal.

(2) That Ground 6 of the appeal and Issue No. 5 is as to award of Cost in the Appellant’s Brief of argument.

Learned counsel for the 3rd respondent similarly raised issues which are preliminary in nature. By the Motion on Notice dated and filed on the 1st August, 2016 he prayed for an order:

” … striking out ground 15 and reliefs Vii, viii, x and xi of the Appellant’s Notice of Appeal dated 14th July, 2016 … ”

I will now address those submissions made by counsel over the Preliminary points; thus:-

ON THE APPELLANT’S BRIEF OF ARGUMENT BEING INCOMPETENT

ii. OBJECTION TO GROUND 6 OF THE NOTICE OF APPEAL AND ISSUE NO. 5 THERETO ON AWARD OF COST.

OPINION

“(2) Nothing in this Section shall confer right of appeal:

(a) ………………………………………………………………………..

(b) ……………………………………………………………………….

(c) Without the leave of the Federal High Court or the High Court or of the Court of Appeal, from a decision of the Federal High Court made with the consent of the parties or as to cost only”

(i) That the Originating Summons before the Lower Court did not contain any question for determination relative to the status of the appellant as the candidate for the 2nd respondent.

(ii) There was no relief before the Lower Court seeking the declaration of the appellant as governor of Abia State.

(iii) The appellant did not file any counter-claim before the Lower Court.

(iv) Arising from (a) – (c) above, ground 15 of the Notice of Appeal does not arise from the Judgment of the Lower Court.

(v) There is no relief in the Notice of Appeal for the invocation of Section 15 of the Court of appeal Act.

(vi) Further to (e) above, this Honourable court lacks jurisdiction to grant relief vii, viii, x and xi in the Notice of Appeal.

OPINION

“In an appeal, a ground of appeal filed on which no issue is formulated, and therefore no argument preferred in the brief of argument, will be deemed by the court as having been abandoned…”

The same court in another case further held in Pam V. Mohammed that:

“As Issue are formulated from ground of appeal, ground 4 which is not ventilated by any Issue is incompetent.” Per Tobi, JSC

A ground of Appeal is liable to be struck out where no issue is derived from it hence no valid argument can be canvassed.

Having regards to the fundamental and jurisdictional issues of abuse of court process, locus standi, incompetence of the Originating Summons, estoppel, and waiver raised by the appellant, whether the Lower Court had jurisdiction to entertain the case before it. Grounds 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 14 and 17.
Whether having regards to the case of the appellant before the Lower Court, this Honourable court has the jurisdiction to grant reliefs vii, viii, x and xi in the Notice of appeal- ground 15 of the Notice of Appeal.

Argument on Issue No. 1

The 2nd respondent in his brief of argument took sides with the appellant on those points wherein his counsel in agreeing with the appellant argued that:

(i) The trial judge was wrong to hold that the 1st respondent had the requisite locus standi to institute the action.

(ii) The trial Judge was wrong to hold that the amended originating Summons is competent the same not having been filed within the requisite or penalty paid default; and

(iii) The trial Judge was wrong to dismiss Appellant’s Motion dated 12th February, 2016.

OPINION

NAME OF ASPIRANTS VOTES SCORED

IHEANACHO OKEZIE 1
MARKWABARA 3
CHIEF (Dr.) OKEZIE IPKEAZU 487
OKEY EMUCHEY 3
ACHO NWAKANMA 5
DR. UCHE OGAH 103
EMEKANWOGU 33
BARRISTE FRIDAY NWOSU 3

See paragraph 30 of the affidavit in support of the amended originating Summons at page 737 of the record.

See further the decisions in Uwazuirike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206, 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.

What constitute an abuse of court process has been a subject of imprecise definition. In Saraki Vs. Kotoye (1992) 11/12 SCNJ -26 the concept of abuse of judicial process was held to involve:

(i) The Originating Summons not being signed and stamped and sealed.

(ii) The Amended Originating Summons not being filed within time in absence of any application legitimizing the process.

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

Secondly, the name of counsel clearly written.

Thirdly, who counsel represent.

Fourthly, name and address of Legal Firm”

In the light of all the foregoing in this discourse I resolve issue No. 1 in favour of the 1st respondent and against the appellant.

Issue No.2

Whether having regards to the case of the appellant before Lower Court, this Honourable has the jurisdiction to grant reliefs Vii, Viii, x and xi in the Notice of Appeal.

OPINION

viii. A Declaration that the Appellant is the duly elected Governor of Abia State by virtue of the governorship election held in Abia State in April, 2015

x. An order that the Appellant be issued with a Certificate of Return as the duly elected Governor of Abia State by the 4th Respondent.

xi. An order that the Appellant be sworn in as the Governor of Abia by the Chief Judge of Abia State or any other relevant Chief Judge or Judicial officer”

On the whole therefore this appeal fails and same is dismissed. I assess cost in the sum of N100,000.00 against the appellant and in favour of the 1st respondent.

Other Citations: (2016)LCN/8981(CA)

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

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

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Encompassing Grounds 7, 9, 10, 30)

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

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

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

ISSUES FOR RESOLUTION

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

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

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

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

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

ISSUE 1

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

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

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

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

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

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

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

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

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

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

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

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

Secondly, the name of counsel clearly written.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE 2

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

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

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

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

(b) The consequent damages.

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

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

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

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

“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Ace submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.

(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.

(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

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

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

(Underlining mine)

I resolve Issue 2 in favour of the appellant.

ISSUE 3

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

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

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

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

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

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

By the provisions of section 133(2) of the Evidence Act, 2011, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. Thus, in civil cases, the onus of proof is not as fixed on a plaintiff as it is -on the prosecution in criminal . cases. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered before the court. Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; A. G. Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (Pt. 845) 1; F.A.T.B Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35.

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

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

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

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

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

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

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

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

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

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

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

(Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

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

Issue 3 is hereby resolved in favour of the appellant.

ISSUE 4

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

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

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

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

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

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

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

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

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

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

Peoples Democratic Party (Pdp) V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Peoples Democratic Party (Pdp) V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal filed by the Appellant who was the 1st Respondent of the trial Court in suit No. FHC/UM/CS/94/2014 now FHC/ABJ/CS/71/2016 against the judgment delivered by Hon. Justice Okon Ajang on 27/6/16. The Appellant’s brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN and Dr. Joseph Nwobike SAN and filed on 15/7/16. The Appellant’s Reply Brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN, Dr. Joseph Nwobike SAN, Dr. Paul Anonoba SA, Prof. Ernest Ojukwu SAN and Valentine Offia Esq and filed on 4/8/16. The 1st Respondent’s Brief was filed by Dr. Alex A. Izinyon, SAN, OFR, O. O. Okpeseyi SAN, O. J. Nnadi SAN, Femi Falana SAN; and other counsel on 1/8/2016.

In the Appellant’s Brief, 8 issues were identified for determination as set out below:

1) Whether the trial Judge was wrong when he proceeded to hear and determine the originating summons having regard to the nature of complaint as well as the conflicting affidavit evidence of the parties without requiring oral evidence and also when he proceeded to place the burden of proof on the Appellant and the 2nd Respondent. Ground II

2) Whether the trial Judge was wrong when he held that the determination of whether the information contained in documents attached to the INEC form CF001is false does not involve the issue of forgery or making of false documents under the Criminal Code or Penal Code. Grounds I, IV, and V

3) Whether the trial Judge was wrong when he held that the Appellant and 2nd Respondent having failed to submit to INEC valid tax receipts for 2011, 2012 and 2013, the 2nd Respondent was not qualified to contest the Governorship election and was further disqualified from contesting the Appellant’s primary election by virtue of Article 14 of the appellant’s Election Guidelines for 2014. Grounds XXI, XXII, XXIII, XXV, XXVII, XXVIII and XXXI

4) Whether the trial Judge was wrong when he held that in determining the falsity or otherwise of documents delivered with Form CF001, the Court will not have regard to any other document introduced by the Appellant and 2nd Respondent to explain any misapprehension of documents attached to the Form CF001. Grounds X and XIV

5) Whether the trial Judge was wrong when held that it was 2nd Respondent who supplied all the information in the relevant form before the tax receipts and tax clearance certificates were issued by Abia State Internal Revenue Service which he thereafter submitted to the 3rd Respondent with Form CF001. Grounds XXIV

6) Whether the trial Judge was wrong when he held that the Form CF001 was submitted by the 2nd Respondent to the 3rd Respondent and that the documents attached thereto contained false information. Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV

7) Whether the trial Judge was wrong when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs as contained in the Judgment. Grounds XXIV, XXXII and XXXIII

8) Whether the trial Judge was wrong when he held that by virtue of Order 27 Rule 4 of the Feral High Court Rules, 2009, no other affidavit will be filed as of right after a Plaintiff’s reply affidavit. Ground III.

In the 1st Respondent’s brief settled by Dr. Alex Azinyon et al, the following 8 issues were also set down for determination:

1) Whether considering the documentary and affidavit evidence before it and the nature of the claim under Section 31(2), (5) & (6) of the Electoral Act, 2010 (as amended), the trial Court was not right in law in its finds that the 1st Respondent’s action could be determined by means of Originating Summons and placing the burden of proof on the Appellant and the 2nd Respondent. (Encompassing Ground II of the Notice of Appeal)

2) Whether the trial Court was not right in its decision that in an action brought pursuant to Section 31(5) of the Electoral Act, 2010 (as amended) what is required to be established is falsehood of the information contained in the documents attached to the INEC Form (CF001and not forgery or making of false documents under the Criminal code or Penal Code (Encompassing Grounds I, IV and V of the Notice of Appeal)

3) Whether having regards to the facts and circumstances of this case, the trial Court was not right in law to have held that the 2nd Respondent was disqualified from contesting the Abia State Governorship Election and the Appellant’s Abia State governorship primary Election as a result of the 2nd Respondent submitting to INEC Tax Receipts for 2011, 2012, 2013 not known to law or failure of tax papers showing payment of income tax to Abia State Board of Internal Revenue in line with Article 14(a) of the Appellant’s Electoral Guidelines, 2014. (Encompassing Grounds XXI, XXII, XXIII, XXV, XXVI, XXVII, XXIII and XXXI of the Notice of appeal)

4) Whether the trial Court is not right in law when it held that it is only bound to examine the documents attached to INEC Form CF001 and forwarded to INEC, to determine if they contain false information and not documents not forming part of documents attached to the Form CF001.

(Encompassing Grounds X, and XIV of the Notice of appeal)

5) Whether considering the facts and circumstances surrounding this case, the trial court was not right when it held that it was the 2nd Respondent that submitted all information in the relevant form before the tax receipts and Tax Certificate were issued by the Abia State Internal Revenue Service and also that the 2nd Respondent submitted the documents to INEC. (Encompassing Grounds XVII, of the Notice of appeal)

6) Whether the trial court was not right when it held that the documents attached to INEC form CF001 contained false information and same as submitted to INEC by the 2nd Respondent. (Encompassing Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV of the Notice of appeal)

7) Whether the trial court was not right to have held that 1st Respondent was the person qualified to be presented to the and Respondent as the Appellant’s candidate for the Abia State Governorship Election and granted the reliefs contained in its judgment. (Encompassing Grounds XXIV, XXXII and XXXIII of the Notice of appeal)

8) Whether the trial Court was not right in law when it held that by virtue of Order 27 Rule 4 of the Federal High Court Rules, 2009, the 2nd Respondent’s Further Counter Affidavit to 1st Respondent’s Reply Affidavit could not be filed as of right but with leave of court. (Encompassing Grounds III of the Notice of appeal)

As the judex in this matter, I have however as I have the right to do, crystallised all the issues into four and set them down as follows:

Whether the learned trial Judge was right to determine the complaints by the origination summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and placing the burden of proof of the facts in issue on the Appellant and 2nd Respondent.
Whether the learned trial Judge was right to hold that Appellant and 2nd Respondent submitted false tax papers to INEC and that constituted ground for his disqualification to be presented as a candidate for the Appellant at the Gubernatorial Election.
Whether the learned trial Court was right when he held that Or 27 r 4 of the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after form CF001 to explain any misapprehension in the documents attached to the form CF001.
Whether the learned trial judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant all the reliefs sought by the 1st Respondent in the originating summons.

ISSUE ONE

Whether the learned trial Judge was right to determine the complaint by the originating summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and the placing of the burden of proof of the facts in issue on the Appellant and 2nd Respondent.

Senior counsel for the Appellant argued that the learned trial Judge prevaricated on the nature of the dispute before him by saying that material facts were not in dispute, and that the onus of proof is on the appellant and 2nd Respondent to prove that the information contained in form CF001 submitted to INEC were not false . Senior counsel argued that the proceedings were hostile in nature bearing in mind the volume of affidavit and counter-affidavit evidence before the Court. Counsel urged the view that the Court cannot pick and choose whose affidavit evidence is true as witnesses should be tested under the fire of cross examination. That is why hostile proceedings must be by oral evidence. Counsel cited D.P.C.C. LTD. v. B.P & C LTD (2008) 4 NWLR (Part 1077) 376; FALOBI v. FALOBI (1976) 1 NMLR 169; F.S.B. I BANK LTD. v. IMANA NIG LTD 11 NWLR (Part 679) 620. Counsel also cited RIMI v. INEC (2005) 6 NWLR (Part 920) 56 at 84 (Para A-C).

Counsel submitted that Or 3, r (6) (7) (8) & (9) of the Federal High Court do not contemplate originating summons procedure where there is anticipation of hostility in the proceedings. Counsel cited Olley v. Tunji (2013) 10 NWLR Pt. 1362 Pg. 275 at 322. Senior counsel argued that the 1st Respondent deliberately employed an improper mode to commence a hostile action and that the summons should be struck out as an abuse of Court process.

C.O.M. Inc v. Cobham (2006) 15 NWLR Pt. 1002 Pg. 283 at 303; Saraki v. Kotoye (1992) 9 NWLR Pt. 284 Pg. 156 at 189, Odukwe v. Achebe (2008) INWLR Pt. 1067 Pg. 40 at 57 “ 58 were cited in support.

Learned senior counsel for the Appellant argued that on Pg. 1201 of the Record, the learned trial Judge was wrong to hold that the onus of proof that the tax documents were not false rests on the Appellant and 2nd Respondent. Senior counsel argued that wrong placement of the burden of proof on a party leads to misdirection which invariably leads to a miscarriage of Justice.

Cited also IKUOMOLAvs. IGE (1992) 4 NWLR (Pt. 236) 511 at 526. SANDY v. HOTTOGUA (1952) 14 WACA 18, where the court held that proceedings held on the wrong assumption that the onus was on a party is a matter which affects the due consideration of the case by a trial Judge. See also ONOBRUCHERE v. ISIBOR (2004) 3NWLR (PT 859) 16, 43-44.

Senior counsel submitted that declaratory reliefs, where sought imposes no burden on the defendant as they cannot be granted even on admission. Counsel cited Nyeson v. Peterside (2016) 7 NWLR Pt.1512 pg. 452 at 535. Senior counsel also submitted that there is no distinct specie of false information other than what obtains under the Criminal Code or Penal code. This is for the reason that a finding that a party presented a false document is indeed something which borders on, not just moral turpitude, but outright criminality. The Electoral Act, supra was thus not fashioned to penalize inaccuracies or inadequacies but rather those acts specifically concocted to syncopate and subvert the requirements of the law relating to the qualification of a candidate.

It was further submitted for the Appellant that for section 31 (5) of the Electoral Act to avail a party, it be established that a false document was presented. Senior counsel went on to define what constitutes false document.

Counsel argued that a false document must be established by the fact of a felonious intent coupled with felonious act. Counsel cited Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; Oduah v. FRN (2012) 11 NWLR Pt. 1301 Pg. 76. Counsel insisted that the 1st Respondent who made the allegation must prove it. Counsel cited PAM VS. MUHAMMED (2008) 16 NWLR (PT 1112) 1; UZOKA VS. FRN (2010) 2 NWLR (PT 1177) 118; ADEWALE VS. OLAIFA (2012) 17 NWLR (PT 1330) 478; EDOHEOKET VS. INYANG (2010) 7 NWLR (PT 1192) 25. Senior counsel also argued that with specific reference to the allegation which touched on inadequacy of payments made by the 2nd Respondent, which clearly does not come within the ambit of section 31 (5) of the Electoral Act, it is submitted that the point is equally not established. The 1st Respondent did not prove that an assessment of the 2nd Respondent’s income was made and served on him by the tax assessment authority and that he failed to pay the assessed sum. The evidence of Mr. Okoji disclosed that the 2nd Respondent had nothing to do with the assessment. The tax was on a PAYE with deductions made at source. Issue of non-payment of the assessed tax therefore cannot arise.

In answer to the above argument, learned senior counsel for the 1st Respondent argued that the issues for determination raised by the 1st Respondent in his Originating Summons principally relate to the construction of paragraph 14(a) in Part IV of Appellant’s Electoral Guidelines for Primary Election, 2014 Section 87(4)(B)(i) and (ii) of the Electoral Act, 2010 (as amended) and Section 31(2), (5) and (6) of the Electoral Act, 2010 (as amended). Counsel referred to pages 191 – 193 of Vol. 1 of the Record. In the case now on appeal, what was sought to be determined is whether exhibits A to H disclosed false information within the meaning of section 31 of the Electoral Act 2010 (as amended) for which section 31(5) and (6) can be invoked against the 2nd Respondent and was indeed invoked against the 2nd Respondent.

Senior Counsel argued that the facts relied upon by the 1st Respondent was principally documentary in nature and the said documents which are Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘E1’, ‘F’ and ‘H’ surprisingly belong to the 2nd Respondent and the 2nd Respondent did not in any way deny their existence. Counsel argued that even though not conceded that there are contentious facts, this has clearly been explained away by the aforesaid documentary evidence. It is trite law that where documentary evidence has explained away conflicts or contentious facts in an affidavit, there is no need to resort to oral evidence. See ETIM V. OBOT (2010) 12 NWLR (PT. 1207) AT 157, PARAS. C – D; OBOAZIKWO V. OBIAZIKWO (2008) 8 NWLR (PT. 1 090) 55 AT 573, PARAS. C-D; WINLYN LTD. V. NACB CON. & FIN. CO. LTD. (2000) 8 NWLR (PT. 670) 594 AT 600, PARAS. B- D; BUNGI V. GOV. RIVERS STATE (2006) 12 NWLR (PR. 995) 573 AT 629-630, PARAS. H- B.

Cited also are JEV V. IYORTOM (2014) FWLR (PT.747)749 AT 777, PARAS. B- C; A.G. ADMAWA V. A.G. FEDERATION (2005) 18 NWLR (PT. 958) 581 AT 620, RARA. G; ANZAKU V. GOVERNOR OF NASSARAWA STATE (2005) R NWLR (PART 919) 448 AT 502 PARAS. C – F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.) 448 AT 502 PARAS. C- F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.

Learned senior counsel for the 1st Respondent also argued that where the document submitted by a candidate is false, the legal consequence is not penal but simply disqualification, which is not a criminal offence not subject to conviction and imprisonment. See Section 31(5) of the Electoral Act 2010 (as amended). It is not a criminal offence. So, the use of the word “perjury” by the learned trial Judge was used in a loose sense to connote that the 2nd Respondent (Dr. Okezie Victor Ikpeazu’s) tax clearance contain false information cannot be stretched to connote wrong burden of proof in the light of the decision of the Supreme Court in Ekagbara vs. Obasi (supra). Ekagbara vs. Ikpeazu (2016) 4 NWLR Pt. 1503 Pg. 411 to 439.

Senior learned counsel for 1st Respondent argued that the case of OLLEY V. TUNJI (SUPRA) relied upon by the Appellant at paragraph 5.05 of its Brief is inapplicable to the facts and circumstances of this case. He countered the submission of the Appellant in paragraph 5.06, that the introduction of Counter-Affidavit of the Appellant and 2nd Respondent and the Counter-Affidavit of James C. Okoji further magnified the said hostility of Court, as highly misconceived. Senior counsel insisted that the said Counter-Affidavits are oral evidence which amounts to efforts to explain the content of documents which is not allowed in law. Counsel urged this Court to reject the said contention of the Appellant. The cases of DPCC LTD. V. V.B.P. & C. LTD. (SUPRA); FALOBI V. FALOBI (SUPRA) and F.S.B.I. BANK LTD. V. IMANA LTD. (SUPRA) heavily relied upon by the Appellant are inapplicable to the facts and circumstances of this case, also argued senior counsel.

Learned 1st Respondent’s counsel argued that Irrespective of the perspective from which one looks at it, there is no inkling expressly or by implication on the face of the aforesaid Section 31 (5) and (6) of Electoral Act, 2010 (as amended), that forgery or the making of false documents under the Criminal or Penal Code is required, to establish the aforesaid false statement.

Counsel submitted that merely establishing the fact that the information in the affidavit or the document submitted to INEC is false, suffices and no more. Section 31(5) of the Electoral Act, 2010 (as amended) is intended to make persons aspiring to occupy public offices to be vigilant, meticulous and exhibit high level of responsibility. Consequently, any information in their affidavit or document which is established to be false, will result in their being disqualified from contesting the election. The issue of forgery or making of false documents under the criminal Code or Penal Code as canvassed by the Appellant in paragraphs 6.01 of its Brief did not flow from the 1st respondent’s case but ingeniously created by the Appellant. 1st Respondent submitted that it is trite law that a court of law cannot read into a law what is not contained therein. Senior counsel cited UTB (NIG) LTD. V. U UKPABIA (2000) 8 NWLR (PT. 670 AT 580, PARA. E; ADEWOLE V. ADESANOYE (1998) 3 NWLR (PT. 541) 175 AT 198, PARA. G. See UGBA V. SUSWAB (2013) 4 NWLR (PT. 1345)AT 474- 475, PARAS. C- A; ACTION CONGRESS V. INEC (2007) 12 NWLR (PT. 1048) 222 AT 275 – 276, PARAS. G- H.

1st Respondent senior counsel complained that the appellant by its defence in the counter-affidavit or the Appellant’s brief of argument introduced a case of forgery of tax clearance certificate or tax receipts, which is not the case put forward for determination by the 1st Respondent.

To show that false information as envisaged in Section 31 (5) of the Electoral Act 2010 (as amended) is different from forgery or outside the purview of criminality as canvassed by the Appellant, Section 31 (5) of the Electoral Act 2010 (as amended) did not provide penal consequences against the 2nd Respondent but simply that the person shall be disqualified. Senior counsel for 1st Respondent then insisted that the information need not be forged or falsified, so long as any document is not correct, the candidate is liable to be disqualified and was rightly disqualified by the trial Judge.

OPINION

Let me first tackle the issue of the appropriateness of the originating summons procedure in initiating this suit at trial. A Plaintiff would know surely from the nature and the cause of action that it would not only be highly contentious but also hostile. The originating summons procedure is meant to determine simple questions of interpretation of statutes documents, wills, deeds etc. It must be understood that we have not been asked nor was the trial court asked to interpret the provisions of S. 31 (5) or s . 87(4)(B)(i) and (ii) of the Electoral Act 2010 or Article 4a of the PDP Electoral guidelines 2014. The trial Court was specifically asked in the originating summons to determine whether specific tax documents submitted by the 2nd Respondent to INEC were false or not. The trial was therefore the engagement of the trial Judge on the factual interpretation of the contents not of a deed or will or statute but tax receipts and certificates issued by a tax authority. It was not in anyway a legal interpretation of the contents of a deed or statute or document. In the con Justice that the document sought to be interpreted was not in dispute. What I am trying to say is that if the beneficiaries of a will are agreed on the validity of the will but are not agreed on the interpretation of some clauses of the will, then the suit can come by originating summons. However, where there is dispute as regards the validity of the will itself, the proceedings would be hostile in nature and facts would be in dispute. Such a case must be originated by writ of summons.

I had once before made the mistake the learned trial Judge made and was quickly and suitably put right by the esteemed Justices of the Supreme Court in OLLEY V. TUNJI supra at Pg. 322 of Pt.1362 of the NWLR. The Supreme Court reiterated the position as follows therein:

“In Re King, Mellor v. South Australian Land Mortgage Agency Coy (1907) 1 Ch. 72 at 75, Neville, J held, inter alia:

“¦it is our considered view that originating summons should only be applicable in such circumstances as where there no dispute on questions of facts or the likelihood of such dispute”.

Back home, our Courts have shown the same reticence as their English counterparts with regard to application by way of originating summons. In Doherty v. Doherty (1968) NMLR 241 (1967) SCNLR 408, Ademola, CJN, issued the warning that the use of originating summons is not suitable in hostile proceedings. See also National Bank of Nigeria Ltd. & Anor. V. Lady Ayodele Alakija & Anor (1978) 9 “ 10 SC 59 at page 71 – 75 wherein this court traced and reviewed the history of originating summons and held thus at page 86 of the report:

“Originating summons should only be applicable in such circumstances as where there is no dispute on questions of facts or (even) the likelihood of such dispute.”

In the matter before us, there is, from the record, not only a mere likelihood of dispute on facts, there is actual dispute on material facts. The 1st Respondent cannot invoke the concept of technicalities yielding place to substantial Justice to rewrite or truncate the provisions if order 3 of the Federal High Court (Civil Procedure) Rules 2009, particularly Rule 6 thereof.”

I have to agree with learned Appellant’s counsel that being hostile proceedings the suit should NOT have been initiated by originating summons and is thus liable to be struck out and should have been struck out by the trial Judge immediately objection was raised. By proceeding to sift through conflicting affidavit evidence of the parties and unilaterally electing to pick and choose which of the Appellant’s evidence to evaluate, accept or reject, it cannot be said that there was no need for oral evidence when the trial Judge engaged in cloistered Justice.

I agree with Dr. Ikpeazu that if the case of the 1st Respondent was founded on the fact that the 2nd Respondent lied on oath and submitted false papers calling on the 2nd Respondent to rebut these allegations, then they were potentially hostile and were actually hostile proceedings. For example as said earlier this is different from where we all agree that our father made a will but we don’t agree with how the executors wish to interpret a clause in the will or we disagree about the interpretation of a phrase in a statute or the Constitution. It is no doubt equally the law that documentary evidence can be employed to resolved conflicting affidavit evidence. This principle of law will, however, not prevail where the document itself is the subject matter of the dispute and cannot by itself dispense with the need to call oral evidence. See MAGNUSSON v. KOIKI & ORS (1991) 4 NWLR (Part 183) 119 at 129 (Para D-E); PHARMACIST BOARD v. ADEBESIN (1976) 5 SC. 43; EBO v. OKI (1974) 1 SC. 179.

On the issue of where the burden of proof in this case lies, I think the very words of S. 31 (5) of the Electoral Act puts the burden of proof in my humble view on the 1st Respondent who is claiming that the information on form CF001 is false. Section 31(5) provides as follows:

A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by the candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

It is the Plaintiff who must initiate the proceedings to prove it. Clearly declaratory reliefs to find the tax documents false were sought for and the burden to prove entitlements to those declaratory reliefs rested squarely on the 1st Respondent. See Nyelson v. Peterside supra where the Supreme Court held on pg.535 of Pt.1512 of the NWLR as follows:

“It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”

Learned Appellant’s counsel argued a point to which I subscribe to the effect that the allegations of fraud and the way they were couched indicates that there was a form of falsehood or forgery involved. The 1st Respondent cannot allege falsehood of the documents in one breath and then in the other breath claim that this is not an accusation of forgery or making false documents. The learned trial Judge was also speaking from two sides of the mouth and prevaricating. You cannot say a document is false and then say that that incidence is different from making a false statement under the Criminal and Penal code. In ARCHIBOLD – Criminal Pleadings Evidence and Practice 1997 edition at page 1904 paragraph 22.18, it was explained thus:

“For an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered”. Reliance was placed on R. V. MORE 86 Cr. APP.R. 234.

The dictionary variously defines “false” to mean

(1) Not in accordance with fact or reality or actuality

(2) Erroneous and usually accidental

(3) Deliberately deceptive

(4) Not genuine or real

(5) Designed to deceive

The learned trial judge found that the documents fit the above description but yet they were not forgeries. This is moreso when the document was attached to a sworn affidavit. Such a false statement amounts to perjury which the learned trial Judge in the end of pg. 1299 of the Record accused the 2nd Respondent of. The proof of such a grave allegation must perforce rest of the person making these allegations. They are criminal offences for which proof is required beyond reasonable doubt. The burden of proof was misplaced in this case and in my view has led to gross miscarriage of Justice. This issue is resolved in favour of the appellant.

ISSUE TWO

Whether the learned trial Judge was right when he held that the 2nd Respondent supplied false information to the tax office in Abia State who then issued Tax Receipts and Certificates which the 2nd Respondent then gave to the appellant which said Tax documents were then attached to Form CF001.

Learned Appellant’s counsel on this issue reiterated the argument that the following allegations were levied against the 2nd respondent in the originating summons which the learned trial Judge found proved.

(i) He did not submit tax receipt for 2011, 2012 and 2013 known to law;

(ii) He did not submit tax receipt showing that taxes were paid as and when due; and

(iii) 2nd Respondent was in consequence of the foregoing not qualified to contest the Appellant’s primary election.

Senior counsel argued that Form CFOO1 submitted to INEC and which was accompanied by the tax document which presumably disqualified the 2nd Respondent from contesting the primary of 8th December, 2014 was actually submitted and was received by INEC on 26th December, 2014 – 16 days after the primary and that it is obvious that if the primary election took place on 8th December, 2014, submission of Form CF001 to INEC on 24th December, 2014 could not have disqualified the 2nd Respondent for a primary which took place earlier.

Senior counsel also submitted that the argument of the 1st Respondent and the opinion of the learned trial Judge that the 1st Respondent’s counsel quoted the Guidelines in his address, the parties joined issues on them and did not dispute their existence which had been judicially noticed in Ukachukwu v. PDP are untenable. Counsel submitted that a Plaintiff has a primary obligation to place before the Court every requisite material and document in proof of his case. Counsel cited ADELAJA V. ALADE (1999) 6 NWLR (Part 608) 544; JIAZA V. BAMGBOSE (1999) 7 NWLR (Part 610) 16 NWLR (Part 1168) 443 at 456. Cited also OMOTAYO V. C.S.A (2010) 16 NWLR (Part 1218) 1.

Senior counsel also cited C.P.C. v. INEC (2011) 18 NWLR pt. 1279 pg. 493 at. 554; Ogunsanya v. the State (2011) LPELR- 2349SC at 44 – 45; okwejiminor v. Gbakeji (2008) 5 NWLR pt. 1079 pg. 179 pg. 179 at 223; C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR pt. 1083 pg. 36; Igwe v. A.I.C.E. to support the point that where material evidence is required, address of counsel cannot be substituted for it. Counsel argued that in the absence of the PDP Guidelines, the declarations founded on them cannot be granted.

Counsel argued that the arrow head of the 1st Respondent’s case as found by the learned trial Judge is that Exh. A, B, C & D “were made on 4/7 /2014” and thus the 2nd Respondent did not pay his tax “as at when due”. Senior counsel argued that the provisions of the 2010 PDP Guidelines are markedly different from the 2014 PDP Guidelines in the first instance and the parties cannot read into a provision what is not there since the phrase “as at when due” is not part of the 2014 PDP Guidelines. Counsel cited FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 2 SCNJ 348; BUHARI V. INEC (2008) 12 S.C. (Part 1) and LADOJA V. INEC (2007) 13 N.W.L.R. (Part 1047) 119 at 188 to 189.

Senior counsel for the Appellant further submitted that neither the Electoral Act, 2010 (as amended) nor the Constitution of the Federal Republic of Nigeria, 1999 (as amended) required the Appellant and 2nd Respondent to submit evidence of tax payment as a ground for qualification of the 2nd Respondent. There is no common law right to contest an election as that right is created and regulated by statute. Also that Section 177 of the Constitution which is couched in mandatory terms by the adoption of the term “shall”, prescribes the factors which “shall” qualify a candidate to occupy the office of a governor of a State. No other law can add to or subtract from it unless enabled by the constitution by virtue of any of its enabling provisions. Section 177 of the Constitution then proceeded to prescribe for the purpose of election to the office of a governor of the State, the minimum standard which every aspirant must attain.

Senior counsel then urged this Court to hold that the provisions of the PDP Guidelines cannot supersede the 1999 constitution and the Electoral Act and that what is not required by the Constitution as qualification should not be required by the political party. Learned counsel referred to Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg. 367; Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; ANPP v . Usman (2008) 12 NWLR Pt. 1100 Pg. 1 at Pg. 54 – 55; AG. Abia v. AG. Federation (2002) 6 NWLR Pt. 763 Pg. 264 at 391- 392. Senior counsel is of the view that the right created by S. 31 (5) and (6) of the Electoral Act does not constitute a fresh ground for qualification or disqualification. The Court cannot introduce new grounds of disqualification. Counsel cited this Court in A.D. v. Fayose (2005) 10 NWLR pt. 932 pt. 151. The most that can be said on the issue of tax is that it will be a ground of sponsorship within the political party where such is provided in the guidelines of the political party. Where as in this case, the political party which did not as quoted by 151 Respondent’s counsel require that tax be paid “as at when due” and the same party was satisfied with the evidence of tax payment supplied by the 2nd Respondent, it really should be the end of the matter.

On the foregoing issue, learned 151 Respondent’s counsel argued in paragraph 4 .80 of the brief as follows:

“The case of the 1st Respondent under Section 31(2)(5) and (6) of the Electoral Act, 2010 (as amended) is not that the 2nd Respondent is obligated to submit tax receipts and Tax Clearance Certificate to INEC but that the information contained in the said Tax receipts and Tax Clearance Certificate submitted to INEC by the 2nd Respondent are false, which does not show payment of tax, and or false information therein.”

Learned 1st Respondent counsel relied heavily on the opinion of the Supreme Court in Ukachukwu v. PDP supra quoted copiously to argue that the failure to show evidence of payment of tax in the preceding years pursuant to Article 14 (a) is a disqualifying factor. On the requirement of Tax Clearance Certificate, counsel argued that it is important to state that payment of tax is typically provided for in the political parties’ guidelines for election which the aspirant for election office must satisfy as a condition precedent for eligibility to contest elections. Therefore S. 87(9) of the Electoral Act gives the party guidelines a statutory flavour for which the Court can take judicial notice, moreso when parties have not joined issues on the existence of the Guideline which they agree do exist.

Senior counsel for 1st Respondent argued that by virtue of S. 124 of the Evidence Act, the affidavit in support of the originating summons set out the PDP Guidelines which are rules in force in the PDP which existence was not contested by the Appellant, they are deemed admitted by the Appellant.

Senior counsel debunked the contention of the Appellant that what Section 31(2) of the Electoral Act or indeed the entire Section 31of the electoral Act intended is constitutional disqualification as provided in the 1999 Constitution of the Federal republic of Nigeria (as amended).

Counsel insisted that it stands to reason that where the tax receipts and tax clearance certificates submitted to INEC in proof of compliance of the 2nd Respondent with the Electoral Guideline for the said PDP Primary election is false, the entire, status erected and mounted by the 2nd respondent that enabled him to participate in the PDP primary election collapsed.

A disqualification pursuant to Section 31 (5) of the Electoral Act 2010 (as amended), for giving false information, cannot therefore, be restricted and limited to failure to meet constitutional requirements by a candidate.

Senior learned counsel argued that disqualification can arise for breach of the constitutional requirements under the 1999 Constitution or for breach of the Electoral Act. Senior learned counsel referred us to the joint Counter Affidavit admitted 2nd Respondent completing INEC Form CF001 and submitted same to INEC but that eh staff of the Appellant (PDP) inadvertently or in error included photocopy of the tax clearance certificate for 2012 and 2013. It also stated that it discovered there was an earlier error in the one submitted for 2011 on Receipt No.: 0012845 and had to be cancelled upon discovery of the error and therefore they cancelled the said receipt shown as Exhibit ARIRSF. Senior learned counsel insisted that this is even enough to prove false information.

2nd Respondent again filed a further Counter Affidavit in opposition to the Originating Summons on 16 I 3 I 16. Counsel referred us to pages 771 – 785 of Vol. 2 of the Record. Attached to the said Further Counter Affidavit are Exhibits OKl, OKS. Exhibit Ok which is 2nd Respondent’s Appointment Letter as General Manager of Abia State Passenger Integrated Manifest Scheme with effect from the 19th July, 2011 and that the learned trial Judge was correct in his findings on the falsehood of the tax documents. Senior counsel argued that the provision of S. 31 (5) has nothing to do with forgery as it only relates to false information. It is a novel provision of the Electoral Act as it provides that an aspirant to such highly exalted position must be like Ceaser’s Wife, be above board, blameless and free from suspicion. To demonstrate this, the Supreme Court had given the legal imprimatur of what is to be proved and defence under Section 31 of the Electoral Act. All the Plain tiff needed is what the said aspirant submitted to INEC pursuant to Section 31(2) of the Electoral Act. See Ekagbara v. Ikpeazu (supra).

Learned 1st Respondent counsel insisted that it’s a cul de sac provision and all complete once the document had been signed. Therefore senior counsel urged us to hold that the 8 unassailable findings of the learned trial Judge in respect of the tax documents submitted by the 2nd Respondent were well founded, moreso when oral evidence cannot be allowed to contradict the written documents submitted. Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at 539; AG Bendel v. UBA (1986) 4 NWLR Pt. 37 Pg. 547 at 563; Manfag Nig. Ltd. v. M/S 0.1. Ltd. (2007) 14 NWLR Pt. 1053 Pg. 109 at 137 – 138. Senior counsel insisted that once a person admits any singular or plurality of error in the said Form or affidavit in the battle to exonerate himself in his action, it is an admission against interest. It is worse if he brings another document which came later as a correction of what is already filed in CF 001 with INEC, moreso as the 2nd Respondent had settled by affidavit declaration that everything he included in his form and attached to it are correct. It is too late to explain any inadequacy in the submitted documents.

Learned senior counsel insists that once the statement submitted to INEC in form CF001 is untrue, incorrect or logically wrong whether by intent, by accident or by mistake then the ingredients of disqualification under S. 31 (5) is complete and the documents cannot be salvaged by any corrected document or explained by affidavit evidence. He relied on Ekagbara v. Ikpeazu supra. The Court was entitled to look at Exh. A- H and make a findings as to their falsehood. Counsel cited FASHANU V. ADEKANYE (1974) 1 ALL NLR 35, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 BWLR (PT. 135) 688 at 734 – 735, KANNO V. KANNO (1986) 5 NWLR (PT. 40) 138.

OPINION

As senior learned counsel for the 1st respondent kept on insisting, this was a two pronged attack on the Appellant and the 2nd Respondent. There is the issue of the non- observance of the provisions of the PDP Electoral Guidelines for Primary, which the 1st Respondent claims is enough to disqualify the 2nd Respondent, the second leg is that the 2nd Respondent submitted “false” tax documents which automatically led to his disqualification by the learned trial Judge. In the first instance, I do not agree with learned Appellant’s counsel that the issue of alleged non qualification of the 2nd Respondent cannot be taken up even after the primaries by the co-aspirant. Under S. 87(9) and under S. 31 (5) of the Electoral Act by “any person”. There is no doubt that the challenge to what took place at the primaries can only be made by any of the aspirants who is not happy with the outcome of the primaries due to any alleged executive or administrative lapses in the conduct of the primaries by the party. The provision of S. 87(9) of the Electoral Act is not at large but limited to an aspirant complaining about the conduct of the primaries. See. Ukachukwu v. PDP supra, Uzodinma v. Izunaso (No. 2) (20 11) 17 NWLR Pt. 1275 Pg. 30, Uwazurike v. Nwachukwu (2013) 3 NWLR Pt. 1342 Pg. 503. It is not in my humble view a good argument that the tax papers submitted to the Appellant before the primaries cannot be used to challenge the result of the primaries even after the said primaries had taken place. It is trite that a cause of action is founded when the aggrieved person realizes the grievances or it is brought to his knowledge. So if anyone submitted false or forged papers at the primary election stage and the other aspirant or the world at large is not aware of the falsehood in the documents until they are mandatorily published by INEC, weeks later, the aggrieved person is entitled to challenge the veracity of the document as soon as possible immediately thereafter, in that case it may be any person who could do so based on the documents submitted to INEC. On the issue of the status of the tax receipts and tax certificates presented by the Appellant and 2nd Respondent, I agree with the argument of learned Appellant’s counsel that the trial Judge not only acted without the benefit of the 2014 Guidelines, his lordship allowed the importation of the term “as at when due” into the Guidelines of the Appellant when there was no basis for that. All the Appellant required even from what 1st respondent’s counsel quoted was evidence of tax payment simpliciter. Appellant was satisfied with what was presented which the tax master C. J. Okoji confirmed emanated from the office of the Abia State Board of Internal revenue. Being a person whose tax liability is made by the PAYE system, there can really be no question as to whether or not he paid his taxes, as it is the responsibility of the revenue collecting authority to ensure deduction at source. Presentation of tax certificate under this scheme is a merely confirmatory. In any event both parties agree that the phrase “as at when due” does not exist in the 20 14 Guidelines.

The issue of payment of taxes by political parties had been settled in my view by the Supreme Court in Ukachukwu v. PDP supra. The Supreme Court upheld the portion of the judgment of this Court in that case which also adopted the reasoning of this Court in Lanto v. Wowo supra to hold that the burden is on the Plaintiff to prove nonpayment of tax. The systematic proof to be adduced by the Plaintiff would be as follows:

(a)The person earned taxable income during the period

(b)There was proper assessment of the taxable income during that period

(d)The tax payer refused to pay within two months of being served with the notice of assessment.

As I said earlier, all the above goes to no issue in respect of a civil servant or public servant whose tax is deducted from source. Throughout the period in respect of the tax documents submitted by the 2nd Respondent, he was a civil servant or public officer depending on the status he acquired within Abia State government. His tax was deducted from source. The complaint by the 1st Respondent as he keeps on repeating in counsel’s address is not that the 2nd Respondent did not pay his tax but that the tax papers given to the 2nd Respondent by the Tax office in Abia State are false. I have looked closely at the reasons given by the learned trial judge to come to the conclusion that the tax documents were false and to throw out the accusation that the 2nd Respondent perjured himself in the affidavit attached to Form CF001 by asserting that the contents of the tax documents are correct. As I said earlier, the 2nd Respondent was a civil servant or public officer. His taxable income by way of Personal Income Tax would be determined by the Tax office in Abia State. He would be assessed by the tax office and the assessment would be given to his employers who would deduct same from source and pay to Abia State government. I do not think the learned trial Judge was right to find that in this case it was the 2nd Respondent who gave information about his taxable income to the tax office from where tax receipts were issued. That would have been a valid argument if there is proof that apart from his work as a civil servant or public officer, the 2nd Respondent had a viable business which he ran and from which he made income subject to the assessment and taxation. In that case, it would be his civic duty to give the correct information regarding his earnings to the tax office for the appropriate assessment. He would then be culpable for any falsehood contained in that information given to the tax authorities.

Let me give examples of the supposed false information contained in the tax receipts and documents given to the 2nd Respondents by the Abia State Tax Office which he submitted to the Appellant to meet with the requirements of the party for primary elections which the party then submitted along with the Form CF001 to INEC. The first false information found by the trial Judge is that the gross emoluments of the 2nd Respondent did not correspond to the five month period he worked for Abia State government. His Lordship refused to accept any explanation that he was assessed and taxed on his whole income for 2011. The second falsehood found was that the tax receipt in respect of 2011 had the date 31/12/11 and being Saturday the tax receipt was false. A look at the tax receipt shows that it indicated the last date of the taxable year but was issued on 4/7/14. It stands to reason that the taxable year ends on 31st of December whichever day it falls on is irrelevant. The 3rd false information is that one receipt number should have come before the other but the learned trial Judge was not prepared to accept the explanation of the tax authority on the matter. The 4th false information found is that the tax receipts for each were different from the tax clearance certificate issued for the said year. Also in this case attempts were made by affidavit evidence to show how the receipts were issued by the tax office, but the evidence was not considered because it came too late. The fifth false information found is the same complaint raised in the 4th false information found by the learned trial Judge. The 6th false information is also the same one raised in the 1st false information. The 7th false information is the general one that the tax documents were “unknown to law” and therefore could not have proved that the 2nd Respondent paid his tax in 2011, 2012 and 2013. The 8th false information is that because the 2nd Respondent went to the tax office to collect his tax clearance and receipts for the preceding years 2011, 2012 and 2013 on 4th July 2014, then he did not pay his taxes as at when due. This finding is unmindful of the fact that tax receipts and tax clearance can only be collected the following year. I looked at the documents. They showed each taxable year’s income, and the tax already deducted from source from the salary of a public officer. The documents were all issued on 4/7/14. The learned trial Judge was being economical with the truth by saying that the documents showed that the 2nd Respondent paid tax on 4/7/14 for the preceding three years. I have taken the pains to explain the findings of the learned trial Judge in order to ensure that it is not seen as if this Court swept the findings under the carpet under the excuse of technicalities. The findings were ridiculous and could not have been affirmed.

For example, at Pg. 1264 – 1265 of the supplementary record, and pg.79 – 80 of the actual judgment, the learned trial Judge held as follows:

“The amount in the 2013 tax receipt for 2013 should be the same amount in the column for 2013 tax in the tax 2nd Defendant submitted to the 3rd Defendant in his tax clearance certificate exhibit D.

In the 2nd Defendant attempts to show that the amount stated in the tax clearance for year 2013 is genuine and not false, he made reference to his exhibits OK4 and OKS and subparagraphs 11 and 12 of paragraph 3 of his further counter affidavit dated 16th March, 2016 to the effect that the amount in the sum of N75,017.76 shown in the 2013 column of tax clearance certificate is the sum total of taxes paid by him from his employment in two agencies in 2013 i.e. for Abia State Passengers Integrated Manifest and Safety Scheme and the other from Abia State Environmental Protection Agency. That according to the 2nd Defendant accounts for the receipt No.0012847 of 31st December, 2013 and receipt No.0012848 of 31st December, 2013.

My lords, if indeed it is true that the entry of personal income tax of the 2nd Defendant in the tax clearance certificate for 2013 represents payment of taxes by the 2nd Defendant when he served in two agencies in 2013, the 2nd Defendant ought to have made this explanation to Independent National Electoral commission when he filled and submitted Form CF001 to Independent National Electoral Commission.”

If the learned trial Judge cannot understand how civil servants express themselves in government format, it does not mean that the format is wrong. I looked at all the receipts in contention and even without looking at the explanation of Mr. Okoji, I did not see anything spectacularly irregular in them. If I go to the tax office next year for my tax receipts for 2016, on 18th June 2017 and the tax officer decides to put on the receipts the last day of 20 16 which is 31/12/16. The last date in this taxable year of our Lord 20 16 also happens to be a Saturday! Would that mean I did not pay tax? Why should I be blamed for the format regime of the tax authority? I agree with learned Appellant’s counsel that if a judicial officer, for instance a Federal High Court Judge who operates under PAYE system was required to present his tax clearance and receipts and she or he goes to the Federal Revenue Office to obtain receipt and clearance, lets for the purpose of argument without admitting say there are errors, inadequacies, improper serialization and where the date on the document is a Saturday, perhaps a Sunday, can it seriously be contended that the officer will not be entitled to the benefits which would accrue to him if the contention is whether he paid his tax or not? No doubt without a falsification of the documents in order to confer an undue advantage, all these shortcomings will be of no moment. I cannot see my way to agreeing that the tax documents submitted by the 2nd Respondent are irregular and ipso facto false. As I said earlier there was a lot of prevarication in the opinion of the learned trial Judge. It is either the documents are false of not. On Pg. 1254- 1255 of the records, the learned trial Judge held as follows:

“My lords, this is the moment of truth. My lords the issue in this matter has been narrowed down. My duty in this Judgment today is to look at form CF001sworn to by the 2nd Defendant and documents attached to therein (exhibit h) and determine whether any of the information contained in form CF001or any document submitted by the 2nd Defendant to 3rd Defendant is false then the Court shall issue an Order disqualifying the candidate from contesting the election. Put differently, My lords, the Court is enjoined by Section 31(5) of Electoral Act 2010 as amended to look at Plaintiff’s exhibits A to H ex facie and find out whether the information contained in the said documents submitted to INEC by the 1st and 2nd Defendants are correct or false.

In my humble view, this exercise stated above has nothing to do with forgery of these documents as alleged by the 1st, 2nd and 3rd . Defendants or making of false documents under the Criminal Code or Penal Code.”

On Pg. 1256 of the Record the learned trial Judge insisted that:

“…the issue before Court has nothing to do with forgery of the tax documents or any related criminal act or conduct.”

I say so because upon reading the judgment and as indicated above, the learned trial judge kept on saying the documents were false but there is no criminal falsehood in them. It’s just like saying œI know the clothes you are wearing were not stolen by you, you did not borrow them. But I can see that they don’t fit you, therefore, they must be stolen. And I cannot accept any explanation as to why I think the clothes don’t fit you.”

In respect of the argument relating to whether the learned trial Judge was right to have granted the reliefs of the 1st Respondent pursuant to S. 31 (5) & ( 6) of the Electoral Act, I think the law in this regard is settled. The doctrine of “covering the field” as enunciated in AG. Abia v. AG. Federation (2001) 6 NWLR Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation supra, the Supreme Court was emphatic that the National Assembly CANNOT make laws with respect to the qualifications and non-qualifications of candidates for election into political office. This Court in ANPP v. Usman supra; Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 and IMMAM v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80 also followed that position. S. 31 (2) of the Electoral Act states as follows:

The list or information submitted by each candidate. shall be accompanied by an Affidavit sworn to by the candidate at the High Court of a State, indicating he has fulfilled all the constitutional requirements for lection into that office.

I agree with the position of the law as stated by learned Appellant’s counsel that by the express position of the law in S. 31 (2) of the Electoral Act as it relates to the affidavit to support the documentation of a candidate for election, the requirements must be within the narrow margin of “all constitutional requirements for election to that office.” The challenge in the originating summons regarding submitting false document in respect of payment of tax are squarely outside the requirements of the Constitution. One may express the sentiments that a tax evader should not be allowed to attain public office being an unpatriotic person, however, tax evasion IS a criminal offence which though heinous in my view cannot as the law stands ground a reason for disqualification until the person has been convicted for that offence. That is not even the situation here. There is no outright allegation of non-payment of tax but that the document in proof thereof are false and cannot be legally acceptable in proof of payment. Suffice it to say that the 2nd Respondent or the Appellant did not prepare the tax papers and non-payment of tax is not a constitutional requirement under S.177 of the Constitution. This issue is resolved in favour of the Appellant.

ISSUE THREE

Whether the learned trial Judge was right when he held that Or 27 r. 4 of . the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after Form CF001 to explain any misapprehension in the documents filed attached to the Form CF001. Learned senior counsel for the Appellant argued that the learned trial Judge tenaciously insisted that the Court would only consider documents submitted to INEC in conjunction with Form CF001 and that any other fact in form of any justification, correction, addition etc. different from what was submitted to INEC was false. On this point, learned senior counsel argued that the learned trial Judge did not allow the Appellant and 2nd Respondent the opportunity to establish

i) That the tax receipts and clearance certificate came from the appropriate authority and,

ii) That other documents from the same assessment authority explained the misconception of the Exhibits relied on by the Appellant.

Senior learned counsel further submitted that S. 128 of the evidence act allows extrinsic evidence to be used where the contents of the document are in dispute. Counsel said that the affidavit evidence of C. J. Okoji in Exh. OK 2 and OKS which were introduced to explain the tax document were ignored by the learned trial Judge. Counsel submitted that it is the duty of the judex to consider all evidence offered in proof or defence of a case as failure to do so will result in denial of fair hearing. Cited OLOWOLAGBA v. BAKARE (1998) 3 NWLR (PART 543) 528; (1998) 3 S.C. 41; UKPAI v. OKORO (1983) 2 SCNLR 380; ONIFADE v OLAYIWOLA (1990) 7 NWLR (PART 161) 130 AT 165.

Counsel also cited Dantata Jnr. V. Mohammed (2012) 14 NWLR Pt. 1319 Pg. 122.

Counsel submitted that the learned trial Judge was in breach of the right of the Appellant and 2nd Respondent to fair hearing. Counsel submitted that admissibility of a document is governed by its relevance and that the learned trial Judge did not give the rule of evidence or practice which barred him from considering any other document which did not accompany Form CF001. Counsel cited ACB Ltd. v. Gwagwada (1994) 5 NWLR Pt. 342 Pg. 25.

Learned counsel for the 1st Respondent argued in reply to this issue that the tax clearance certificates and tax receipts were received by the 2nd Respondent since 4/7/14 and between that time and 26/12/14 when he submitted them to INEC, he did not use his avalanche of degrees and academic qualifications to discover that there were irregularities in the tax documents in his possession. In paragraph 4.125, senior learned 1st Respondent’s counsel argued that The 2nd Respondent should have taken steps to remedy this problem by writing the Abia State Inland Revenue Service to rectify the said anomaly. If the said problems is unresolved before the said submission to INEC it is this step by the 2nd Respondent and the response by the Abia State Inland Revenue Service that should have accompanied 2nd Respondent’s purported Tax receipts for 2011, 2012, 2013 and the said Tax Clearance Certificate which he submitted to INEC.

Counsel insisted that the tax documents should have been explained within the framework of the documents attached to INEC Form CF001submitted to INEC. Counsel argued that the 2nd Respondent should have attached his monthly pay slip to show the requisite deduction from source.

OPINION

At Pg. 1240 – 1243 of the Record, the learned trial Judge held the view that in accordance with Or 3 r 9 (2) (a) & (b) and Or 13 r 35(15) and Or 13 r 6(1) of the Federal High Court Rules 2009, after the Defendant is served with originating summons, he has 14 days to file counter-affidavit and the Plaintiff has 14 days to file reply affidavit. The trial Judge held that no party can file any other process without leave of Court and such other process must be ignored by the Court. In concluding his opinion on this point, the learned trial Judge opined that since both parties had engaged in this improper exercise of filing extra further affidavit, and parties had not joined issues on it, he would leave the issue as it was. Presumably, he would consider all the processes filed before him to which there had been no objection. Even though learned trial Judge set out the similar contents of Exh. PDP 1 and PDP 2 in the judgment on Pg. 1233 – 1240 of the Records, his Lordship did not consider them to be a good defence to the allegation levelled against the 2nd Respondent because they were depositions made after the filing of Form CF001 and should not be considered. Exh. PDP 2 was deposed to by James Okoji, Director of Direct Taxes in Abia State Internal Revenue Service. The learned trial Judge refused to evaluate it as against the allegations .of irregularities pointed out by the 1st Respondent which he accepted hook, line and sinker. The trial Judge in one breath stated that the Exhibits were not for his consideration. Yet he still stated that the documents which were not considered by him were afterthought. One would have imagined that the documents can only be ruled as afterthought if their contents were examined and found to be forged, false, irrelevant orincredible. I agree with the Appellant that in the absence of a consideration of the contents of the documents, it would amount to a deliberate avoidance of the implication of their contents to label them as mere afterthought. This further compounds the denial of the Appellant and the 2nd Respondent of their rights to be heard in their defence.

The learned trial Judge held as follows on pg. 1268 of the record

“The 2nd Defendant is bound by the documents that he submitted to Independent National Electoral Commission. He cannot be allowed to use extraneous documents not forming part of the documents he submitted to Independent National Electoral Commission earlier to establish that the facts contained in A, B, C, D and H are correct, true and genuine.”

Several affidavit evidence e.g. PDP1 and PDP 2 were acknowledged as having been filed by the Appellant to rebut the allegations in the originating summons, but the Court was not prepared to consider and evaluate them to weigh them on the scale of Justice. Surely failure to evaluate the evidence of both parties in order to arrive at a just finding of fact leads to miscarriage of Justice. In BABA V. CIVIL AVIATION (1991) 5 NWLR PT. 192 PG. 388 the Supreme Court held that the Court must hear both sides of a dispute and give equal treatment and consideration to all material issues in the case before reaching a conclusion that may be prejudicial to a party. See also VICTINO FIXED ODDS LTD. V. JOSEPH OJO (2010) 8 NWLR PT.1197 PG. 486. I cannot find merit in the refusal of His Lordship to evaluate the evidence of the adverse party in the circumstances of this case. In my humble view, His Lordship committed great violence against one of the twin pillars of the temple of Justice which is – audi alteram partem. If he had considered the other side of the case, probably some of the obvious faux pas he made in the judgment regarding what happens at the tax office or how the tax office issue their receipts and clearances would not have occurred. Indeed, Justice has not been served by the failure of the learned trial Judge to consider the case of the other side. This issue is resolved in favour of the Appellant.

ISSUE FOUR

Whether the learned Judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs in the judgment.

Learned Appellant’s counsel argued that the trial Judge did not follow the path already laid by the decisions of the Superior Courts. He indeed charted a new course and declared as Governor of a State, a person who did not exhibit compliance with Section 177 of the Constitution of the federation and who was not nominated by members of the electorate within the constituency.

Leaned Appellant counsel argued that the present case is a departure from the foregoing cases where a person who scored 103 votes at primaries was ordered to be given the certificate of return by INEC as against the candidate who score 487 votes at the primaries of the party. Counsel argued that if the Election Tribunal had nullified the election of the Governor, on the grounds of nonqualification, a fresh election would be ordered by INEC pursuant to S. 140(2) of the Electoral Act. Senior counsel cited Chukwu v. Igwe (1988) 4 NWLR Pt. 90 Pg. 609; C.P.C. v. Ombugadu (2013) 18 NWLR Pt. 1385. See KOLAWOLE v. FOLUSHO (2009) 8 NWLR (PT. 1143) 338; (U.N.C.P. v. D.P.N. (1998) 8 NWLR (PT. 560) 90; MELE v. NOHAMMED (1999) 3 NWLR (PT. 595) 425. Learned 1st Respondent counsel in response to the above argued that the Supreme Court had ordered that a party who emerges victorious in pre-election matter be issued Certificate of Return. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE v. INEC (2014) 18 NWLR (PT. 1438) 56; JEV V. IYORTOM (2014) 14 (PT. 183) 505. The fact of conduct of an election, does not extinguish the right of a person in a pre-election matter as a preelection cause continues even after the conduct of an election. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE V. INEC (2014) NWLR (PT. 1438) 56 AT 102, PARAS. D – E, 117, PARAS. B – E, 129 – 130. PARAS. H – C; 138, PARAS. C – D; ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 554; NOBISELENDU V. INEC (2015) 16 NWLR (PT. 1485) 197; NWAZURIKE V. NWACHUKWU (2013) 3 NWLR (PT. 1342) 502 AT 522, PARA. E.

Learned counsel argued that the present position of the law is a stated by the Supreme Court in Agbaje v. INEC (2016) 4 NWLR Pt.1501 Pg. 151 at 165- 166.

OPINION

The Appellant had asked this Court to set aside the judgment and orders of the trial Court. The said judgment and orders are as set out below on Pg130 1 – 1306 of the record

It is hereby declared that Dr. Okezie Ikpeazu the 2nd Defendant herein was not eligible not qualified to be nominated or participate in the gubernatorial primary election for Abia state conducted by the People’s Democratic Party and her officers on 8th December, 2014 which the Plaintiff, the 2nd and others participated.
It is hereby declared that Dr. Okezie Ikpeazu not being qualified to be nominate or participate or take part on the Peoples’ Democratic Party Gubernatorial party’s primary election on 8th December, 2014 is not the aspirant scored in law and facts the highest number of votes in the Peoples’ Democratic Party primary election conducted pursuant to Section 87(4)() I and II of the Electoral Act 2010 as amended and part I Article 14(a) of the Peoples’ Democratic Party’s Electoral Guidelines 2014.
It is declare that the votes alleged scored by Dr. Okezie Ikpeazu in the Peoples’ Democratic Party primary election for aspirants to the gubernatorial election in Abia State on 8th December, 2014 are wasted votes, null and void and none of the Defendants is entitle to act on the scores credited to Dr. Okezie Ikpeazu based on the said Peoples’ Democratic Party primary election which Dr. Okezie abinitio is not qualified to be nominated or participate in the said primary election.
An Order is herby made declaring the Plaintiff Dr. Sampson Uchechukwu Ogah as the aspirant in the Peoples’ Democratic Party primary election conducted by the Peoples’ Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of valid votes cast in the Peoples’ Democratic Party’s primary election in which the Plaintiff Dr. Okezie Ikpeazu and others participated as aspirants pursuant to Section 87(4)() I and II of the Electoral Act and Article 14(a) of Peoples’ Democratic Party Electoral Guidelines for 2014.
It is hereby Ordered that the Plaintiff being the aspirant that scored the highest number of lawful votes in the Peoples’ Democratic Party primary election for gubernatorial candidate in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitle to be nominated as candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State for the 2015 general election scheduled to take place on 11th April, 2015 pursuant to Section 87(4)() I and II of the Electoral Act 2010 and amended and Article 14(a) of the Peoples’ Democratic Party electoral Guidelines 2014.
An Order is hereby made pursuant to Section 87(4) b(1) and (II) of the Electoral Act 2010 as amended and Article 14(a) of the Peoples’ Democratic Party Electoral Guidelines 2014 for the 1st Defendant herein Peoples’ Democratic Party to submit the name of the Plaintiff to the 3rd Defendant as the gubernatorial candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State in the 2015 general election scheduled for 11th April, 2015 and for the 3rd Defendant Independent National Electoral Commission to accept the name of the Plaintiff as the candidate of the Peoples’ Democratic Party for the2015 gubernatorial election in Abia State.
An Order is hereby made mandating the 3rd Defendant pursuant to Section 87 (4) (I) and (II) of the Electoral Act 2010 as amended to publish the name of the Plaintiff as the candidate of Peoples’ Democratic Party so for the gubernatorial election for Abia State in the general election f”lxed for 11th April, 2015.
It is hereby declared that the information supplied by Dr. Okezie Ikpeazu the 2nd Defendant herein in For, CF001 as sworn by him in the aff”ldavit accompanied with other documents submitted to Independent National Electoral Commission by him pursuant to Section 31 (2) of Electoral Act as amended are false.
An Order is hereby made disqualifying the 2nd Defendant from contesting the gubernatorial election in Abia State as the candidate of the Peoples’ Democratic Party.
An Order is hereby made directing the 1st and 3rd Defendant to replace or forward the name of the Plaintiff as the candidate of Peoples’ Democratic Party returned in the governorship election for Abia State.
It is hereby declared that at all material times since the conduct of Peoples’ Democratic Party primary election on 9th December, 2014 till today the date of delivery of the judgment of this Court, the Plaintiff remained and still remains the candidate of the Peoples’ Democratic Party in the 2015 Governorship election in Abia State.

Thereafter the learned trial Judge made some consequential orders as follows:

“A consequential Order is hereby made to give effect to the judgment that the Plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitle to the certificate of return in the election for the office of Governorship of Abia State of Nigeria for the election held on 11th April, 2015.

It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3rd Defendant herein shall forthwith issue certificate of return to the Plaintiff, Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlements to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State.”

From my earlier considerations and resolution of the contentious issues, I have to say that there is no iota of justification in law and in fact for these orders made by the learned trial Judge. The learned trial Judge cited some examples of previous decisions of the Supreme Court to justify the reliefs he granted to the 1st Respondent. The learned senior counsel for the Appellant went to great pains to set out what actually happened in those cases and I agree with him. The conclusions in those cases are set out below:

i. In OBI V. INEC (2007) 11 NWLR (PART 1046) 645, Mr. Obi was already a serving Governor who despite the fact that his tenure was yet to expire, INEC conducted an election and issued a Certificate of Return to another who was subsequently sworn in as governor. The Court by a consequential Order restored Mr. Obi to his office.

In GWEDE V. INEC (2014) 18 NWLR (PART 1438) 56, the 2nd Respondent won the primary election but then withdrew formally in writing. Appellant was substituted by PDP and filed his nomination papers, thereupon INEC published his name. He contested the election but INEC issued the 2nd Respondent who did not contest the election with a Certificate of Return. The Supreme Court restored the Appellant who was duly nominated and filled all nomination forms and was published as a nominated candidate by INEC.

iii. In GBILIVE V. ADDINGI (2014) 16 NWLR (PART 1433) 394, the 1st Respondent won the primary election conducted by the National Executive of the party and was nominated. The State faction of the party, however, forwarded the name of the Appellant who was issued with a Certificate of Return. The Supreme Court restored the candidate sponsored by the National Executive and who won the primary and was duly nominated.

iv. In ODEDO V. INEC (2008 19 NWLR (PART 1117) 554, the Appellant was duly nominated and filed the necessary papers, another person Obinna Chidoka was substituted, contested and won the election. The Supreme Court ruled the substitution unlawful and restored the Appellant.

v. In AMAECHI V. INEC (2008) 3. NWLR (PART 1080) 227, the facts were similar to ODEDO V. INEC (SUPRA).

vi. In JEV V. IYORTOM (2014) 14 NWLR (PART 1483) 484, the eventual winner of the appeal at the Supreme Court was indeed the winner at the primary election but his name was not published by INEC.

The fact of this case cannot justify the orders made by the learned trial Judge. The second Respondent in this case won the primaries and was adjudged winner of the general election by the Supreme Court.

In the circumstances, having found the issues raised by both parties in this appeal to be resolved in favour of the Appellant, I find merit in this appeal and it is hereby allowed. The judgment of Hon. Justice Okon Abang delivered on 2716116 1n suit No.FHC/ABJ/CS/71/2016 is here by set aside. The orders therein are also set aside. Costs of N100,000.00 in favour of the Appellant against the 1st respondent. Appeal Allowed.

Other Citations: (2016)LCN/8979(CA)

Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016) LLJR-CA

Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATTA BDLIYA, J.C.A.

This is an appeal against the judgment of the Federal High Court Abuja, (the lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st and 2nd respondents (who were the Plaintiffs) at the lower Court instituted the suit against the appellant (who was the defendant) by an originating summons filed on the 22nd of December 2014 which was amended on originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The appellant and the 1st and 2nd respondents are members of the 3rd respondent. The 3rd respondent conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and the 3rd respondent’s Constitution. At the conclusion of the primary election, the 3rd respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The appellant then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the 3rd respondent as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State. The 1st and 2nd respondents were dissatisfied with the election of the appellant (3rd respondent), hence they instituted the suit at the lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 27th of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the lower Court, the appellant filed three (3) different Notices of appeal, which can be found on pages 1116-1120; 1121-1126 and 1127-1130 respectively, all contained in vol. I of the record of appeal. However, the appeal has been argued on the Notice of appeal dated 20th and filed on the 21st of July, 2016.

The appellant’s brief of argument was dated and filed on the 22nd of July 2016, wherein six (6) issues have been distilled from the Notice and grounds of appeal, on page 4 thereof. The six (6) issues are thus:

(i) Considering the far-reaching definitive findings made by the lower Court on the merits of the case before it whilst considering preliminary objections, whether the judgment of the lower Court is not liable to be set aside as perverse. – Ground 1.
(ii) Considering the questions for determination in the amended originating summons, the reliefs claimed thereat, and the exhibits presented as evidence, whether the lower Court acted without jurisdiction to predicate its judgment on Articles 14 and 14(a) of the PDP Guidelines for primary election 2014 and the primary elections of the PDP. – Grounds 2, 3, 4, 6, 7, 13 and 18.
(iii) Considering the claim in the amended originating summons premised on submission of documents to INEC on 26th December, 2014, whether the claim at the lower Court was/is not premature and incompetent. Ground 27.
(iv) Considering the criminal nature of the findings made by the lower Court and the hostile nature of the plaintiffs’ case, whether the said Court was not wrong to have heard and determined the case before it using the originating summons procedure. – Grounds 26 and 28.
(v) Whether the lower Court was not wrong to have decided to adopt its findings in SUIT NO. FHC/ABJ/CS/71/16 – Dr. Sampson Uchechukwu Ogah v. PDP & Ors. to this suit.
(vi) Considering the totality of the evidence placed before the lower Court vis-Ã -vis the applicable laws and the 1999 Constitution of the Federal Republic of Nigeria (as amended) whether the lower Court was not wrong in granting the claims of the plaintiffs before it and exercising jurisdiction in the way and manner it so did. – Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 21, 22, 23, 24, 25, 29 and 30.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 3, six (6) issues which are not dissimilar to those contained in the appellant’s brief of argument have been culled from the Notice and grounds of appeal. The 3rd and 4th respondents did not file brief of argument. A reply trial was filed on the 4th of August, 2016.

At the hearing of the appeal on the 9th of August 2016, the Court drew the attention of learned counsel to the parties to pages 3 to 5 and 563-565 of vol.1 of the record of appeal where the originating summons and the Amended Originating Summons could be found, and invited them to address it as to whether the two (2) processes initiating the suit had been signed by the parties or their counsel as required by law. The Court considered it necessary to draw the attention of learned counsel and invited them to address it because the issue raised has not been raised and dealt with by the lower Court nor did the parties raise it in their briefs of argument. The issue has been raised suo motu, by the Court, because it is jurisdictional, that is, it involves the competency of the suit filed at the lower Court, and its jurisdiction to have entertained and or adjudicated same if it is established that the initiating processes have not been signed by the parties nor by their counsel as required by law.

I am not unmindful that a Court of law, either of first instance or appellate, should be reluctant to raise an issue(s) suo motu. For as pointed out in Shirting Civil Engr. v. Yahaya (2005) 5 SCM P. 101 @ 192, that:

“In our adversary system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu, it has removed itself from its exalted position to flirt with the parties and in the course gets itself soiled in the litigation¦ Though a Court has the jurisdiction to raise an issue suo motu; it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to reach to the issue by way of address. On no account should a Court of Law raise an issue suo motu and resolve it suo motu”.

TOBI, J.S.C. (of blessed memory) had this to say in Okonkwo v. Cooperative & Commerce Bank (2001) 13 NSCCER P. 688 @ 735.

“While a Court has the jurisdiction to raise a matter suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a Court of law should be most reluctant to raise suo motu. When it does not, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The Court was in serious error for not giving the right to counsel to react to the issue of waiver which it raised suo motu”.

Onnoghen, J.S.C, in the case of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P. 330 @ 346 said:
”It is settled law that though a Court of law may raise an issue suo motu. It cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that parties or their counsel to address it on that issue. In other words a Court of law has the vires to raise issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu”.

This Court, per Ariwoola, JCA (as he then was) adumbrated in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) P. 1 @ 33, that:
“Though it is ordinarily not offensive for the Court or tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties”.

It was in view of the foregoing judicial pronouncements of the Apex Court and this Court on raising an issue suo motu by the Courts in the adjudication processes that this Court drew the attention of learned counsel to the parties, and invited them to address the Court on the issue raised by it.

The importance of jurisdiction cannot be underrated for purpose of litigation. Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) P. 566; Opara v. Amadi (2013) 12 NWLR (Pt. 1369) P. 512. The issue of jurisdiction can be raised at any stage of the proceedings even at the appellate stage. Since jurisdiction is regarded as a threshold issue and a lifeline for conducting any proceedings, same ought to be taken and determined at the earliest opportunity. This is because any step taken in the proceedings where there is no jurisdiction, the entire proceedings are a nullity no matter how brilliantly handled or concluded. Western Union Works Ltd. v. Iron & Steel Workers Union (No. 1) (1986) 3 NWLR (Pt. 30) P. 617; Ndaeyo v. Ogunnaya (1977); I.B.W.A. v. Imano (Nig) Ltd. (1988) 3 NWLR (Pt. 85) P. 633; Dweye v. Iyomahan (1983) 2 SCNLR 135.

The issue for determination, on the point raised by the Court is this:
“Whether the learned Judge of the lower Court was right in assuming jurisdiction and adjudicated on the Suit No. FHC/ABJ/CS/1086/2014 when the originating summons which was later amended were not signed in any manner known to law.”

In the resolution of issues contained in the briefs of argument, an appellate Court is not under a regimental duty to accept the issues formulated by the parties. An appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. As a matter of procedure, an appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. Okoro v. State (1988) 5 NWLR (Pt. 94) P. 255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 390) P. 379.

Furthermore, in the interest of justice, and for a just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the appellant’s brief of argument or that of the respondent in the determination of an appeal. See AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt. 1328) P. 1 @ 31 and Sha (Jnr) v. Kwan (2008) 8 NWLR (Pt. 670) P. 685. That a Court can also frame or formulate issues for determination in a suit or appeal has support in the case of Peterside v. Fabara (2013) 6 (Pt. 1349) P. 156 @ 172, where it was held that an issue for determination may be framed by the appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal. It must not be the issues as formulated by the appellant that the appellate Court must rely on for its consideration and determination of the appeal before it. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) P. 373; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) P. 608; Unity Bank of Nigeria v. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177.

The six (6) issues contained in the appellant’s and those contained in the 1st and 2nd respondents’ briefs of argument are interwoven, intertwined and dovetailing such that one set of issues cannot be resolved without delving into the other set of issues. For this reason the issues contained in the two (2) briefs of argument and that formulated by the Court are hereunder compressed and restructured thus:

ISSUES FOR RESOLUTION
(1) Whether the learned trial Judge of the lower Court was right in assuming jurisdiction and adjudicated on Suit No. FHC/ABJ/CS/1086/2014 when the Amended Originating Summons initiating same was not signed in the manner provided by law?
(2) Whether in view of the facts and circumstances of the case as it concerns the 1st and 2nd respondents’ claim in the amended originating summons no cause of action has been disclosed therefore the suit is premature and incompetent (encompassing ground 27 of the notice of appeal).
(3) Whether having regards to the fact and circumstances of this case, the trial Court was right in its finding that the action can be determined under the originating summons procedure. (Encompassing grounds 26 and 28 of the notice of appeal).
(4) Whether in view of the facts and circumstances surrounding the ruling of the trial Court in respect of the Appellant’s preliminary objection, the trial Court can be said to have delved into the merit of the case at the interlocutory stage. (Encompassing ground 1 of the notice appeal).

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

ISSUE 1
Whether the learned trial Judge of lower Court was not wrong when he assumed jurisdiction to adjudicate on the Suit No. FHC/ABJ/CS/1086/2014 when the initiating originating summons were not signed as required by law? On this issue Dr. Izinyon, SAN, of learned Senior counsel referred to pages 1 to 5 of the record of appeal vol.1, and submitted that the names of counsel who took out the originating summons have been listed at the top left hand margin of page 5 showing the signature of counsel. That the originating summons was amended which can be found on pages 563-565 of Vol.1 of the record of proceedings where the list of counsel who signed the writ have been provided. That if the amended originating summons has been signed, it cannot be doubted it has cured any defect in the original originating summons initiating the suit. Learned senior counsel did urge that the Court should hold that the originating summons having been amended, the suit filed by the 1st and 2nd respondents is competent and the lower Court had the jurisdiction when it entertained and adjudicated on same.

For the appellant, Chief Olanipekun, SAN, of learned Senior counsel, referred to page 5 of the record of appeal Vol. 1, and contended that there is no signature of any counsel on the originating summons, therefore, it has not been signed as is required by law. That even the amended Originating Summons on pages 563 to 565 cannot be valid because the counsel who signed it cannot be ascertained. That an invalid process cannot cure an invalid process. The case of Bawa v. State (1991) 2 NWLR (Pt. 178) P. 461 @ 475 and Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) P. 136 cited to buttress the submission that an incompetent process cannot be amended. That the signature on page 5 is different from that on page 565 of the record of appeal Vol.1, therefore, neither the original Originating Summons nor the Amended originating Summons has been signed by a Legal Practitioner as required by law.

Order 3 rules 12(2) and (3) of the Federal High Court Rules, 2009, provides as follows:
“12(2) A plaintiff or the plaintiff’s legal practitioner shall on presenting any originating process for sealing, leave with the Registrar as many copies of ‘the process as there are defendants to be served and one copy for endorsement of service on each defendant.
“(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being a true copy of the original process”.
Section 2(1) of the Legal Practitioners Act provides thus:

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

Section 24 of the Legal Practitioner’s Act further provides that:
”24 in this Act; unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”.

A Court process, whether Writ of Summons or Notice of appeal, or Statement of Claim or Statement of Defence must be signed by a named and identifiable Legal Practitioner. Any Court process not signed by a named and identifiable Legal Practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per RHODES-VIVOUR, J.S.C, has had spelt out how it is to be signed in the case of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 27, thus:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e. the Legal Practitioners Act). All the processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad”.
In Mekiye & Anor. v. Tajudeen & Ors. (2012) 15 NWLR (Pt. 1323) P. 315 @ 338, this Court enunciated that:
“Any person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised”.

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

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

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

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

The originating summons was amended on the 12th of February, 2015. It is on pages 563 to 565 of Vol. I of the record of appeal. Beneath the signature the names of Max Ozoaka, Esq. with Osim U. Jones, Esq. Prosper Ukachukwu, Esq., and Judith Obiora-flo (Mrs.) Esq., have been listed as counsel taking out the writ of summons. Again who among them signed the Amended originating writ of summons. Can it be said that a specific particular counsel signed it? The manner of signing a Court process has been clearly spelt out by the Supreme Court in the case of SLB Consortium Ltd v. NNPC supra. That it must be signed by a known or identified or ascertainable counsel. In respect of the Amended originating summons which ¢ purportedly amended the originating summons on page 5 of the record of Appeal Vol. I, it cannot be ascertained who of the three (3) counsel signed it. That an originating Court process such as Notice of Appeal, writ of summons, originating summons or statement of claim, among others; must be signed by an identified or known legal practitioner has been enunciated in the case of PMB Ltd v. NDIC (2011) 12 NWLR (Pt. 1261) P. 253 @ 262 where Mshelia, J.C.A had this to say:
“A notice of appeal is an originating process which activates the jurisdiction of this Court. Since appellant’s counsel decided to sign the notice of appeal on behalf of the appellant, he owes a duty to his client to do so properly. With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of appellant’s counsel is not irrelevant as contended by respondent’s counsel. The relevance of the disclosure of the identity is to assist the Court to confirm that the person who signed the document is a Legal Practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of appellant’s counsel is not a mere irregularity as contented by respondent’s counsel but a fundamental error. The notice if appeal under consideration is in the circumstance, fundamentally defective and is liable to be struck-out. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this Court to determine the appeal on merit, same would be struck out for being incompetent.”
In Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) P. 685 @ 633, Jauro J.C.A cited and relied on the then unreported case of Onward Enterprises Ltd v. Olam International Ltd & Ors. Appeal No. CA/L/365/2008, where Mukhtar J.C.A, expressed the view on page 9 of the ruling that:
”Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature. Even common sense dictates that signature is only identifiable by the name of the signatory. A Court initiating process like notice of appeal must therefore be signed by appending the name of the signatory in the absence of which it will be impossible to ascertain who the signatory is much less being a legal practitioner whose name could be traceable to the roll of legal practitioners in Nigeria.
By the definition of signature in the Black’s Law Dictionary as noted above, the mere typing of name on a process does not satisfy the requirement of signature. The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls short of. I am not saying the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner. I am therefore unable to agree with the learned senior counsel for the appellant’s submission that the signature of an unnamed signatory satisfied the requirement of signature by a legal practitioner. Any attempt to detect the unnamed signatory will tantamount to converting the Court into a forensic laboratory.”

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

An incompetent process is null and void ab initio. It cannot be amended. To reinforce the position of the law adumbrated supra, the case of Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) P. 481 @ 496 is cited and relied on. Muhammed, J.S.C. said:

“My lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cure by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process? The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigants when counsel falls to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment. See: N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549.”

Where an originating process initiating a suit has been found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it; for an invalid originating process cannot initiate a suit in a Court of law. In Kida v. Ogunmola (2006) ALL FWLR (Pt. 327) P. 402 @ 412 Mohammed J.S.C. enunciated that:
“The validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”

A Court of law can only be competent and having jurisdiction to adjudicate a matter before it where the following conditions have been fulfilled or satisfied.
(a) The Court is properly constituted as regards number and qualification of the members of the bench;
(b) The subject matter of the action is within the jurisdiction of the Court; and
(c) The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Suit No. FHC/ABJ/CS/1086/2014 has not been initiated or commenced by a competent originating process as required by law, for the Amended originating summons which purportedly amended the originating writ of summons were not signed by a known and ascertainable counsel as enunciated in the cases of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 327; Mekiye & Anor v. Tajudeen & Ors (2012) 15 NWLR (Pt. 1323) P. 315 @ 338 and Adenye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 630. Based on the principles of law enunciated supra, the lower Court had no jurisdiction in adjudicating Suit No. FHC/ABJ/CS/1086/2014 for it was not initiated or commenced by a valid and competent originating summons. The judgment of the lower Court in the said Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June 2016, has been delivered without jurisdiction. Same is liable to be set aside. I so make the order. I resolve issue 1 in favour of the appellant.

ISSUE 2
Whether a cause of action had accrued on the 22nd of December, 2014 when the 1st and 2nd respondents instituted Suit No. FHC/ABJ/CS/1086/2014 against the appellant, 3rd and 4th respondents? The appellant’s brief of argument was settled by Chief Wole Olanipekun, SAN. The gist of his submission is that jurisdiction of a Court of law is based on cause of action disclosed in the initiating process of a suit. That Suit No. FHC/CS/1086/14 was filed on 22/12/14; as at this date no document was submitted to INEC. It was on 26/12/16 that INEC FORM CF 001 was submitted to the INEC. That the Amended Originating Summons was based on the submission of INEC FORM CF.001 on the 26/12/14. As at that time no cause of action had accrued. That cause of action is determined by the originating process. The case of Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) P. 207 @ 284 cited to buttress the submission supra. Senior counsel submitted that no extraneous matter can be considered in the determination of when a cause of action arose or accrued. The case of Thomas v. Olafusoye (1986) 1 NWRL (Pt. 18) P. 669 @ 682 cited in aid.

Senior counsel further contended that an examination of the originating summons and the affidavit in support of same would reveal that the claims of the 1st and 2nd respondents were based on the submission of FORM INEC CF. 001 to INEC, not to the Peoples Democratic Party (PDP), therefore the cause of action accrued on 26/12/14, not on 22/12/14 or on the 8th of December, 2014, the date the Primary Election of the Peoples Democratic Party (PDP) was conducted. Senior counsel also referred to the two (2) questions posed for the determination of the lower Court, and the reliefs sought which all referred to the submission of FORM CF.001 to INEC, not to the Peoples Democratic Party (PDP) but to INEC therefore as at 22/12/14 no cause of action had accrued to enables the suit be initiated by the 1st and 2nd respondents. That the action/suit filed on the 22/12/14 had no cause of action at that time, but it accrued on the 26/12/14 with the submission of FORM CF.001 to INEC on that date. That the suit filed on 22/12/14 by the 1st and 2nd respondents cannot be valid in law having been initiated or commenced when there was no cause of action.

Dr. Alex Izinyon, SAN, of learned Senior counsel to the 1st and 2nd respondents settled their brief of arguments. Senior counsel contended that the cause of action started to accrue on 8/12/14 when the People’s Democratic Party (PDP) held the Primary Election whereat the appellant submitted his documents as an aspirant to be elected as candidate of the party for the gubernatorial election of Abia State. That the appellant, having been elected at the primary election submitted documents to INEC 4th respondent making a declaration on oath that he had fulfill all the requirements of the Constitution to be a candidate for the PDP at the election to be held on the 11/4/2015. That the Tax documents submitted together with other documents were not correct, having not paid tax for the hence 2011, 2012 and 2013 as and when due. As to when the cause of action arose or accrued, Senior counsel did content that it was on 8/12/14 when appellant as aspirant submitted his documents for the primary election. The case of Williams v. Williams (2008) 10 NWLR (Pt. 1085) P. 364 @ 380 cited to buttress the submissions supra.

What is cause of action? In Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) P. 50 @ 131, cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements:
(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and
(b) The consequent damages.
Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) (1988) 3 NWLR (Pt. 32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.

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

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. 1; Egbue v. Araka (1988) 3 NWLR (Pt. 84) P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.

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

The provisions of section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveal when the cause of action ought to accrued or arisen. Section 31 (1), (2) and (3) of the Electoral Act provides:
“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.
(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

It is after the Electoral Commission has acted, by publishing the names of the candidates in the Constituency under sub section 7 of section 31 of the Electoral Act, that any person may apply under subsection 4 of the Act for a copy of ‘the documents submitted by a candidate. Thereafter, if the person who has applied and obtained a copy of the documents submitted by the candidate finds that the documents so submitted contain false information, then he can approach a Court of law seeking for the disqualification of the candidate. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date. It is in view of the foregoing that the institution of the Suit No. FHC/ABJ/CS/1086/14 on the 22nd of December, 2011 by the 1st and 2nd respondents was earlier than the accrual of the cause of action. The law is trite, any action initiated or instituted before the accrual of the cause of action, cannot be valid. For there cannot be a competent action before the accrual of cause of action. Therefore, the suit filed by the 1st and 2nd respondents on the 22/12/14 before the submissions of FORM CF 001 to INEC on 26/12/14, cannot be competent. Where an action or suit is initiated or commenced without cause of action, it is incompetent, and liable to be struck out. The case of Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 132 is very instructive. It was held that where and when a Court comes to the conclusion that a plaintiff has no cause of action, the Court can strike out the action. The lower Court, if it had considered whether there was cause of action disclosed as at 22/12/14 when Suit No. FHC/ABJ/CS/1086/14 was commenced by the 1st and 2nd respondent, it would have realized that there was no cause of action to have sustained the suit filed by the 1st respondent and 2nd respondent. It would have then struck out same for being incompetent. Having found that the Suit No. FHC/ABJ/CS/1086/14, instituted at the lower Court is incompetent by reason of having been initiated without the accrual of cause of action, I do hereby make an order striking out the suit.

Consequently, having struck out Suit No. FHC/ABJ/CS/1086/14, the entire proceedings including the judgment of that Court are but a nullity, same can be struck out for there is nothing it can stand on. Eso, J.S.C, (of blessed memory) in the cases of Skenconsult (Nig.) Ltd & Ors v. Ukey 1981 S.C P. 1 @ 9 cited and relied on the case of Macfoy v. UAC Ltd 1962. A.C. 15, 2, where Denning J, said:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Underlining mine)
I resolve Issue 2 in favour of the appellant.

ISSUE 3
Whether having regards to the facts and circumstances of the case, the learned Judge of the lower Court was right in its findings that the action can be determined under the Originating Summons procedure? Chief Olanipekun SAN, of learned Senior counsel, who settled the appellant’s brief of argument, did submit that a critical examination of the originating summons and the depositions in the affidavit in support would reveal that it is not the interpretation or construction of the provisions of law that are not involved but it is the application of the provisions of section 31 of the Electoral Act, 2010 (as amended) and section 24 (f) of the 1999 Constitution (amended). That the appellant had disputed the assertion by the 1st and 2nd respondents that he had submitted documents containing false information to the 4th respondent, INEC. That the appellant had adduced evidence, including tax documents from the Abia State Internal Revenue Services to disprove the assertion of the 1st and 2nd respondents. That in view of the foregoing, an inquiry by a Court of law into the assertion of the 1st and 2nd respondents is imperative in order to ascertain the truthfulness or otherwise of the assertion.

Senior counsel further contended that having regards to the reliefs sought by the 1st and 2nd respondents in the originating summons, they are declaratory in nature, which cannot be granted without the parties adducing credible evidence. That same are not grantable on affidavit evidence. The case of Nasco Tow Pic v. Nwabueze (2014) LPELR-22526 (CA) @ 22-23 and the provisions of Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules) 2009 were cited and relied on to buttress the submissions supra. Concluding, senior counsel urged that the issue be resolved in favour of the appellant.

For the 1st and 2nd respondent, Dr. Izinyon, SAN, of learned Senior counsel did submit that the learned trial Judge of the lower Court was right in holding that the originating summons procedure was appropriate for the determination of the action filed by the 1st and 2nd respondents.
Senior counsel referred to Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules and contended that the action was rightly commenced by the originating summons procedure. It was further submitted that the case of the 1st and 2nd respondents at the lower Court had been predicated on the submission of false information to INEC, the 4th respondent, which is contrary to section 31(1)(2)(3)(4)(5)(6) of the Electoral Act, 2010. That the dispute at the lower Court was whether FORM CF. 001 submitted to the 4th respondent, INEC by the appellant contained false information or not, and if so, whether the appellant was disqualified to contest the primary election conducted by the 3rd respondent or not. The cases of Jev. v. Jyortom (2014) FWLR (Pt. 747) P. 749 @ 777, among others were cited and relied on to reinforce the submissions supra. Senior counsel further contended that there were no allegations of the commission of any offence under the Personal Income Tax Act nor section 118(k) of the Electoral Act, 2010 (amended). That the contention of the appellant that the originating summons of the 1st and 2nd respondents commencing the suit at the lower Court alleges the commission of crime, therefore, the said suit was not suitable for adjudication under the Originating Summons Procedure, cannot be correct. That there are no allegations of forgery nor perjury as alleged by the appellant. As to the contention that the reliefs sought by the 1st and 2nd respondents are declaratory in nature, Senior counsel submitted that far from it. Concluding, Senior counsel did urge that this issue be resolved against the appellant.

Was the learned trial Judge of the lower Court right or justified in his decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure? Order 3 rule 2(a) of the Federal High Court Civil Procedure Rules 2009 provides thus:
“Proceedings may be begun by originating summons where:
(a) The sole or principal question at issue is, or likely to be one of the construction of a written law or of any instrument made under any written Jaw, or of any deed, will, contract or other document or some other question of law… ”

Originating summons is simply a mode of procedure to which recourse is made where the circumstances are such that there is no dispute of facts or likelihood of such dispute. Where there is a dispute on facts requiring the setting of pleadings to resolve such issue of facts, there can be no recourse to originating summons. In Ezeigwe v. Nwalulu (2010) 4 NWLR (Pt. 1183) P, 169 @ 191, it was held that:

“It is settled ¢ Jaw that originating summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law or any deed, will, contract or other document or any substantial dispute of fact relevant to the determination of the issue in controversy”.

Originating summons is an unusual procedure or method of commencing proceedings in the High Court. It is best suited for cases where there are no substantial dispute of facts, or there is no likelihood of their being in dispute and when the sole, or principal question in issue, is or likely to be one directed at the construction of a written law, Constitution, or any instrument, or deed, Will, contract, or other document, or other question of law, or circumstances where there is not likely to be any dispute as to facts. Originating summons being a procedure for the determination of disputes on affidavit evidence and thereby rendering the calling of witnesses and examination of witnesses rarely necessary, has been recognized as a judicial means of achieving expeditious hearing of deserving cases.

See Etim v. Obot (2010) 12 NWLR (Pt. 1207) P. 108 @ 156 and Omojula v. Oyateru (2009) All FWLR (Pt. 453) P. 1318. It must be noted that the mere filing of a counter-affidavit in response to the supporting affidavit of an originating summons does not automatically make the matter one in which oral evidence must be adduced and thereby necessitating the ordering of pleadings. Where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the Court is not saddled with the responsibility of calling oral evidence. Where the areas of conflict are so narrow and insignificant, the need to call oral evidence and thereby necessitating the ordering of pleadings will not arise. Also, where the conflict in the affidavit evidence can be resolved on available documentary evidence before the Court, oral evidence need not be called and a fortiori pleadings need not be ordered.

The Amended Originating summons are on pages 563 to 563. There are two questions posed for determination. The reliefs sought are on pages 564 to 565. There is an affidavit filed in support of the originating summons on pages 568 to 569. There is a 26 paragraphs counter affidavit of Mr. J. C. Okoji, Director of Direct Taxes of Abia State Internal Revenue Services. In these paragraphs of the Counter-affidavit the deponent deposed to facts explaining the contradictions and inconsistencies in the payment of tax by the appellant illustrating each point with tax receipts and Tax Clearance Certificates, how the tax was paid by the appellant and the reasons for the apparent discrepancies in the documents submitted to INEC by the appellant regarding payment of tax by him during the relevant periods, 2011, 2012 and 2013. See pages 629 to 635 of Vol. 1 of the record of appeal. The 1st and 2nd reliefs sought by the 1st and 2nd respondents are declaratory. They are the principal reliefs upon which the rest of the reliefs are hinged, and their being granted or not all depends on the two principal reliefs enumerated supra.

It is also significant to note that the provisions of sections 31(8) and 118(k) of the Electoral Act create offences for the submission of names of candidate to INEC who does not meet the qualifications stipulated, and the punishment for the commission of such offence has been provided for. Declaratory reliefs are only grantable on cogent and credible evidence adduced by a claimant. Sections 31(8) and 118(k) of the Electoral Act create criminal offences which must be proved beyond reasonable doubt as required by section 135(1) of the Evidence Act, 2011. In view of the foregoing adumbration, the facts and the evidence upon which the issues raised by the Amended Originating Summons could not have been resolved easily on the affidavit credence before the lower Court for they are hostile in nature.

Where the facts of¢ a dispute are likely to be in dispute, the originating summons procedure cannot be restored in resolving or determining disputes. See Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) P. 207 @ 284, where the Apex Court held that; the procedure of originating summons ought not be used where the facts are likely to be in dispute.

The learned trial Judge of the lower Court was therefore not right in his findings and decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure. Issue 3 is resolved in favour of the appellant.

ISSUE 4
Whether the lower Court did not delve into the substantive suit when ¢considering the preliminary objection in its interlocutory decision? Chief Olanipekun SAN, of learned Senior Counsel submitted that when considering the preliminary objection by the appellant on the issue of lack of locus standi of the 1st and 2nd respondent to institute Suit No. FHC/ABJ/1086/2014, and non-disclosure of cause of action at the time it was commenced on the 22/12/14, the lower Court delved into and took decisions touching or concerning issues in the substantive suit. Senior Counsel contended that a Court has no jurisdiction or power to delve into the substantive suit when ruling in an interlocutory issue on preliminary objection raised by any of the parties. That a Court cannot and should not pronounce on the merit of any issue in the substantive action in an interlocutory ruling or decision. The cases of Nwakwo v. Yar’adua (2010) NWLR (Pt. 1209) P. 518 @ 54 and Odon v. Bariga-Amange (No. 2) (2010) 12 NWLR (Pt. 1207) P. 13 @ 28 were cited and relied on¢ to reinforce the submissions supra.

Senior Counsel went further to contend that the lower Court had taken decision on the issue in the substantive action when he used the words “offensive”, “false”, “told a lie” in referring to the information submitted to INEC by the appellant. That having taken such a decision, there were nothing left for the Court to decide in the substantive suit; the Court has had already reached a decision by the usage of such words or phrases. The cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P. 158 and Anuforo v. Oblilor (1997) 11 NWLR (Pt. 530) P. 661 @ 674 cited to buttress the submissions supra. Senior counsel concluded by submitting that by taking a decision in the interlocutory ruling on the preliminary objection without affording the appellant the opportunity to be heard before taking such decisions, his right to fair hearing has been breached occasioning a miscarriage of judgment to him. As to what constitutes breach of fair hearing, counsel cited and relied on the case of Mohammed v. Kano N. A (1968) 1 ALL NLR P. 44 where it has been held that it is the opinion or impression of a reasonable person who has been observing the proceedings as to what he thinks of the process and proceedings of the Court, whether fair hearing has been afforded to the appellant or not.

For the 1st and 2nd respondent, Dr. Izinyon SAN, of learned senior counsel, contented that the lower Court did not decide on the issue of qualification or disqualification of the appellant in the ruling when considering the preliminary objection. That the finding of the Court was on the 1st and 2nd respondents’ locus standi to initiate the suit, and the accrual of the cause of action. It was further submitted that it is only where a trial Court delve into the substantive suit in an interlocutory ruling that a miscarriage of justice could be occasioned to the appellant. That such a decision could be set aside. The cases of Onyesoh v. Nneuchie (1992) 3 NWLR (Pt. 229) P. 315 @ 335; Adamu v. Nasarawa State (2007) 6 NWLR (Pt. 105) P. 485 and Obiaha v. Military Administrator, Imo State (1998) 10 NWLR (Pt. 569) P. 205 cited to buttress the submissions supra.

Senior counsel further contended that a mere reference to an issue in the substantive suit in an interlocutory ruling without more cannot be a ground to void the ruling. That the contention of learned senior counsel to the appellant that the lower Court took a decision on an issue in the substantive suit cannot be correct, it is a misconception. That there was no breach of the appellants right to fair hearing because the ruling of the lower Court centered on the processes filed before the lower Court. That the decision of the lower Court was not tainted with bias, it is therefore not correct as alleged by the appellant. Counsel did urge that this issue be resolved against the appellant.

Whether the lower Court took a decision in the ruling touching on the issues in the substantive suit or not, it is imperative to examine the record of appeal. On page 1080 of the record, the learned Judge in his ruling on locus standi and cause of action held that:

“without the 3rd defendant submitting the documents containing false information to the 1st defendant to enable contest the defendant’s primary on 8th December, 2014, the 1st defendant would not have submitted the documents on 26th December, 2014 to the 2nd defendant. Therefore, the cause of action accrued before the documents containing false information were submitted on 26th December, 2014.” (Underlining mine)

Also on pages 1081-1082, the lower Court held that:

”In any event, the 3rd defendant submitted documents containing false information on his tax papers to the 1st defendant on or before 8th December, 2014 for him to be nominated as a party candidate for Abia State Governorship Election. Therefore, the cause of action arose before 22nd December, 2014 that the suit was filed to restrain the 1st defendant from accepting the 3rd defendant’s particulars inclusive of the offensive tax papers as part of Exhibit A2 attached to the amended originating summons.” (Underlining mine)

The forgoing findings of the lower Court in the ruling on the preliminary objection obviously would affect the mind of the learned trial Judge when considering the substantive suit having taken a decision on the status of the tax papers attached to the originating summons as “offensive” and “false” information, which the lower Court later decided in the judgment in the substantive suit. The findings on the ruling reproduced supra should not have been taken before considering the substantive suit on the merit, after both parties might have been heard or their affidavit evidence been considered by the Court. That a decision taken in an interlocutory ruling which would later be an issue in the substantive suit is not proper as it could affect the mind of the learned Judge to favour the other party to the dispute has been reinforced to the cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P.158 P. 196-197, in a similar situation or circumstances as in this extant appeal. It was held that:
“In the instant case, the learned trial Judge while reviewing the evidence called by parties made the following adversary or damaging remarking:¦
There is no or dispute that the learned trial Judge made the above remarks at the initial stage of his judgment and while setting down the case as presented by both parties to the dispute. At most, it was the stage in which the plaintiff/appellant was required to establish a prima facie case. I am therefore of the humble view that under the principle of the above cited authorities, (particularly Anuforo v. Obilor (supra), it was too early and out of place for the learned trial Judge to make the conclusions or findings of facts on the evidence or on its probative value as he did in his above quoted remarks. If anything, the adverse remarks made against the appellants case at that stage, only gives the impression that the learned trial Judge was leaning unfairly against the appellant and in favour of the respondents.” (Underlining mine)

In Mbanefo v. Molakwu (2014) 6 NWLR (Pt. 1403) P. 377 @ 416, the Apex Court stated that there should be no negative finding or resolution of an issue which would be prejudicial to any of the parties before considering the matter on the merits otherwise it would tantamount to pre-judging the issue. In case of Mohan1med v. Kano Native Authority (1968) 1 ALL NLR P. 411, the Supreme Court provided the parameter for testing whether a particular act could be a breach of fair hearing to be the impression of an unbiased reasonable bystander who had observed the proceedings. In the instant case, what would an unbiased by-stander say of the pronouncements of the lower Court on pages 1080, 1081-1082 of the record of proceedings. Where a decision of a Court has breached a party’s right to fair hearing, such an act, or decision is to be set aside. See Agpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) P. 124 @ 197; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) P. 23 @ 44 and Tsowa Motors v. UBA Plc (2008) 2 NWLR (Pt. 1071) P. 747. The comments on the preliminary objection in ruling of the lower Court referred to supra having breached the appellant’s right to fair hearing ought to be set aside. I so make the order.

This issue is resolved in favour of the appellant.

Having resolved Issue 1, 2, 3 and 4 in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered in Suit FHC/ABJ/CS/1086/2014 on the 27th of June, 2016, is hereby set aside. The appellant is entitled to costs assessed at N100,000.00, same is awarded to him against the 1st and 2nd Respondents. The 3rd and
4th respondents have not filed briefs of argument in the appeal, therefore, are not entitled to cost.

Other Citations: (2016)LCN/8978(CA)

Dr Okezie Victor Ikpeazu V. Dr Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Dr Okezie Victor Ikpeazu V. Dr Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PHILOMENA MBUA EKPE, J.C.A.

This appeal emanates from the decision of the Federal High court in Suit No.FHC/ABJ/CS/7112016 coram Hon. Justice Okon Abang delivered on the 27th day of June, 2016. The Appellant herein being clc.ulv dissatisfied with the said Ruling also emanating from the same judgment, on pages 217 to 253 of the record has appealed to this court raising two grounds of appeal to wit:

Ground One:

The learned trial Judge erred in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

PARTICULARS OF ERROR

(i) The learned trial Judge was without the vires to sit on the interpretation of the Court of Appeal Rules, being Rules of a superior court of record.

(ii) Without prejudice to (i) supra, the interpretation given to Order 4 Rules (10) and (11) of the Court of Appeal Rules by the Lower Court is erroneous and misleading.

(iii) Order 4 (11) of the Court of Appeal Rules does not demarcate/bifurcate final and interlocutory appeals.

(iv) Without prejudice to (iii) supra, there was no interlocutory proceeding pending before the Lower Court.

(v) The Lower Court knew and was duly informed that the record of appeal in Appeal No. CA/A/390/2016 had been transmitted to the Court of Appeal, and a motion, seeking sundry interlocutory reliefs had also been filed before the Court of Appeal.

(vi) The interpretation of Order 4 Rules (10) and (11) embarked upon by the Lower Court was/is unprecedented, and the Lower Court did not support its proposition with any judicial precedent.

(vii) Deliberately, the Lower Court decided to encroach on the exclusive jurisdiction preserved for the Court of Appeal.

The learned trial Judge er.re d in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

Ground Two:

The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it, after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

PARTICULARS OF ERROR

(i) Binding decisions of the Supreme Court and Court of Appeal, including Ogunremi v. Dada (1962) 2 SCNLR 417, V AB Petroleum Inc. v. Momah (2013) 14 NWLR(Pt. 1374) 284 etc., were cited to the Lower Court on the trite proposition on when an appellate court is fully seised of an appeal.

(ii) Counsel to the 1st respondent honourably conceded to the trite legal position in (i) above, but the Lower Court chose to disagree with him.

(iii) Throughout the ruling of the Lower Court, no decision of the Court of Appeal or Supreme Court was cited by it to support the novel position that it was still vested with jurisdiction to continue with the proceedings.

(iv) The Supreme Court decision in Mohammed v. Olawumi (1993) 4 NWLR (Pt. 287) 254 was also cited to the Lower Court in order to avoid a situation of judicial impertinence.

(v) The Lower Court failed, refused and neglected to follow and be bound by both the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules, and the several decisions of appellate courts cited to it.

(vi) The Lower Court wrongly relied on the provisions of Order 7 of the Court of Appeal Rules which are not applicable to the matter before it.

(vii) In acting as aforesaid, the Lower Court, in its elaborate ruling, made further comments and conclusions depicting its prejudice against the Appellant. The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

The Appellant also sought the following reliefs:

“1. To allow the appeal;

To set aside the ruling of the Lower Court dated the 8th day of July, 2016”.

From the grounds of appeal raised by the Appellant, a sole issue for determination was distilled thus:

Considering the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules 2011, binding decisions of appellate courts on same as well as the age-long doctrine of stare decisis, whether the Lower Court was not in grave error by holding that it has jurisdiction to entertain and continue with proceedings on the same subject/applications after the record of appeal has been transmitted to this Honourable Court, and this court has been fully seised of the proceedings- Grounds 1 & 2.

Grounds 1 and 2

The 1st Respondent on his_ part also raised a sole issue for determination thus:

Whether the trial court was right in the construction given to Order 4 Rules 10 and 11 and Order 7 of the Court of Appeal Rules, 2011 vis-a-vis the pending Motion for Stay of Execution pending appeal.

I shall determine appeal based on the sole issue couched by the Appellant.

The 2nd, 3rd and 4th Respondents did not file processes and therefore had nothing to urge.

The argument of the Appellant revolves around Order 4 Rules (10) and (11) of the Court of Appeal Rules and what he termed the sacred doctrine of stare decisis stating that when an appeal has been entered at the appellate court, the Lower Court lacks jurisdiction to entertain any further proceedings on the subject apart from transmitting the remnants of applications before it to the appellate court. That the Lower Court unnecessarily promoted arguments to circumvent the clear meaning of Order 4 Rules (10) and (11) of the said Rules. Learned counsel for the Appellant faulted the stance of the Lower Court when the judex called on both counsel for the parties to address the court on the interpretation of Order 4 Rules (10) and (11) referring particularly to page 228 of the record as follows:

“Learned senior counsel for Appellant/Applicant please kindly address the court whether the provisions of Order 4 Rule 11 of the Court of Appeal Rules applies to appeal against final decision that has been entered or whether it applies to or regulates appeal against interlocutory decision that has been entered or whether it applies to both the appeal against final and interlocutory decision that has been entered”.

Learned Appellant’s counsel further opined that the Lower Court was in grave error when it held that Order 4 Rules (11) only regulates an interlocutory appeal that has been entered in the Court’ of Appeal and that it does not regulate an appeal against a final decision which has been entered at the Court of Appeal. Learned counsel further reiterated the fact that no Lower Court has the right or vires to interpret the Rules of the Court of Appeal or the audacity to depart from a decision of a superior court. He then cited the case of OKEKE V. OKOLI (2000) 1 NWLR (PT. 642) 641 & 654, where the Court of Appeal thus held:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this order, every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

Learned counsel further cited the following authorities to buttress his argument:

OSEMWINGIE & ORS. V. OSEMWINGIE & ORS. (2012) LPELR – 19790.
SUSWAN V. SAROR & ORS. (2012) LPELR- 9767.
DALHATU V. TURAKI (2003) 12 NWLR (PT.843) 310 @ 336.

Learned Appellant’s counsel concluded that it should be noted that no application was pending at the time before the Lower Court in accordance with the Rules for setting aside of the Order of the Abia State High Court. That the mere oral application by the 1st Respondent counsel to set aside the said order was only an off shoot of the Appellant’s interlocutory application mentioned in the counter affidavit to the Appellant’s application and did not constitute an application per se. He further concluded that none of the proceedings of the Abia State High Court is before the Lower Court.

In his reply filed and dated the 3rd day of August, 20 16; learned counsel for the Appellant submitted that the Respondent made a volte face when in one breath he acceded to submission of the Appellant that the Lower Court had lost jurisdiction since the Court of Appeal is already seised of the matter and in another breath made an attempt to justify the action of the Lower Court. He further submitted that a party cannot under any circumstance change his case on appeal. He then referred the case of AJIDE v KELANI (1985) 3 NWLR (pt. 12) 248 @ 269 and AKPAN v BOB (2010) 17 NWLR (pt.1223) 421 @523- 524.

Learned counsel again referred to the rationale reached at the Lower Court when it held thus:

“However, the turning point in this ruling is that Dr. Alex Izinyon (SAN) has conceded that where an appeal is entered in the court of Appeal, this court lacks jurisdiction to entertain an application for stay”.

Counsel pointed out that the said decision of the Lower Court has not been appealed against and neither did the Respondents file any cross appeal to challenge it. Learned counsel also reiterated the fact that there was indeed no dichotomy between interlocutory and final appeals envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011. He emphasized on the clarity of the law in that regard by calling in aid the cases of MARWA v NYAKO (2012) 6 NWLR (pt 1296) 199 and CALABAR CCC v EKPO (2008) 6 NWLR (Pt.1083) 3 62 @ 39.

That the above Rule wholly takes control of every aspect of an appeal to the exclusion of the court below once the appeal is entered. Learned counsel concluded that paragraphs 4.12 to 4.14 at page 9 of the Respondent’s brief goes to no issue as the Respondent resorted to mere sentiments in an attempt to justify the pronouncement of the Lower Court when that court sought to comment on proceedings not before it. He referred to it as mere sentiment and cited the case of BUHARI v. OBANSANJO (2005) 13 NWLR (PT 941) 1 @198 para G- H.

While urging the court to disregard the argument of the Respondent in its entirety, he urged the court to allow the appeal.

He then urged the court to resolve the sole issue in favour of the Appellant and set aside the. “Bench Ruling” of the Lower Court dated 8th July, 2016.

Learned counsel for the 1st Respondent on his part also raised a sole issue for determination which to my mind is on all fours with the sole issue raised and argued by the Appellant in this discourse.

He submitted that the trial court was right in establishing a distinction between an interlocutory and final appeal envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules. That the said Order which the trial court read in conjunction with Order 7 of the Court of Appeal Rules to arrive at the said decision cannot be faulted particularly since learned senior counsel for the Appellant did not cite any decision where the provisions have been so interpreted. He then urged the court to resolve the issue in favour of the Respondent and dismiss the appeal.

RESOLUTION

Notwithstanding the fact that the appeal before us has become a mere academic exercise, it is pertinent at this juncture to clearly adumbrate on the correct position of the law for the clarification of some knotty issues and the promotion of justice for the benefit of all and sundry. To begin with, let me reproduce ORDER 4 RULES (10) and (11) of the Court of Appeal Rules, 2011, the interpretation on which this entire appeal revolves.

ORDER 4 RULE 10:

RULE 10:

“An Appeal shall be deemed to have been entered in the court when the record of proceedings in the court below has been received in the Registry of the Court”.

RULE 11:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto au d except as may be otherwise provided in this order every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

It is on record that on the 8th day of July, 2016 both learned counsel for the Appellant and the 1st Respondent appeared before the Federal High Court. Learned Appellant’s counsel Chief Olanipekun SAN informed the court that the record of appeal had already been transmitted to the Court of Appeal and that the appeal had also been assigned an Appeal No. CA/A/390/2016 and that the Court of Appeal was fully seized of the matter. He then made heavy weather of Order 4 Rules (10) and (11) urging the Court to transit the proceedings of the application before it to the Court of Appeal. Learned counsel for the 1st Respondent who had brought an application before the Lower Court to set aside the order of the Abia State High Court for abuse of court process and contempt of court order disagreed with learned opposing counsel stating that the said application had already been argued on the 4th July, 2016 and urged the court to pronounce on it. The Lower Court however after very extensive arguments proffered by both learned counsel finally disagreed with the two learned senior counsel and suo motu adjourned all applications therein to abide the outcome of the main appeal in CA/A/390/2016.

Learned counsel for the Appellant based his arguments on two planks: first that the records of the said appeal had already been transmitted to the Court of Appeal and any further applications should also be transmitted to the Court of Appeal for determination. The second plank of his argument is that the Lower Court was in grave error to have called for the interpretation of Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011. On the first point which is the issue of jurisdiction of the Lower Court after an appeal has been entered in the appellate court, I shall refer to the words of the said Order which stipulate that an appeal shall be deemed to have been entered in the court when the record of proceedings in the Lower Court has been received in the Registry of the Court. In the case at hand judgment was delivered on the 6th day of June, 2016 in FHC/ABJ/CS/71/2016. On the 1st day of July, 2016 the appeal was duly entered at the Registry of Court of Appeal and assigned an Appeal No.CA/A/390/2016.

The presumption is that the said appeal is deemed duly and properly entered in the Court of Appeal. The second arm or the said order is that after the appeal has been duly entered, and until it has been finally disposed of, the Court of Appeal shall be seised of the entire proceedings and any applications thereafter shall be made in the appellate court.

The Rules have also made provisions for any application to be filed in the court below but for onward transmission to the Court of Appeal. In the case of SHELL PETROLEUM DEV. CO. LTD. v. OJIOWHOR MONDAY AMADI & ORS. 2011 LPELR 3204. The Apex Court stated thus:

“The general rule is that after an appeal has been entered; all other applications can ¢ be made in the appellate court, even though application may be filed in the court below for proper transmission to the Appellate Court”.

The Supreme Court further expantiated the tact that even the Court of Appeal will cease to have juris to hear any application when the records of appeal will have been received in the . Supreme Court who then has the sole juris to deal with all matters both interlocutory and otherwise.

It is worthy of note that the rules of court are the guiding watchdogs of proceedings and must be strictly adhered to. See KAF ARU AROWOLO & ORS V. NAVY CAPTAIN ABIMBOLA ADESINA (2010) LPELR 4384.

Also in the case of ABRAHAM ADELEKE & OR. V. OYO STATE HOUSE OF ASSEMBLY & ORS. (2006) LPELR 7655,this court held that as soon as an appeal is entered in the appellate court, it becomes fully seised of the matter and from thence forward, the court becomes dominus litis having full and complete dominion over all processes filed and ensuing proceedings to the exclusion of the Lower Court.

Also an appeal is deemed as having been duly entered as soon as all salient records are transmitted to the registry of the appellate court which cannot be heard to be competing with the Lower Court over any application in respect of the appeal. See also DUKE V. DUKE (2014) LPELR 2309; AJIBADE AINA & ORS. V. TIKA TOR PRESS LTD. (1968) 1 ALL NLR 210.

Learned senior counsel for the 1st Respondent in his brief of argument at page 5 stated that where there is an interlocutory appeal and motion for stay of proceedings and records are transmitted to the appellate court, and there is evidence of such before the trial court, it ceases to have jurisdiction except where the application is filed before the Court of Appeal where the applicant is enjoined to show exceptional circumstances where the application cannot be filed in the trial court.

He then referred to Order 7 Rule 3 & 4 of the Court of Appeal Rules. Let me also make referenqe to the said Order which clearly states as follows:

RULE 3:

“Wherever an application has been refused by the court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal”.

RULE 4:

“Wherever under these Rules an application may be made either to the court below or to the Court, it shall not be made in the first instances to the Court,. except where there are special circumstances, which make it impossible or impracticable to apply to the court below”.

We do not require the services of any soothsayer to read in-between the lines of Order 7 Rule 3 of the Court of Appeal Rules 2011 as cited supra.

It simply means that where an application has been heard and refused by the Lower Court, then such an application may be made to the Appellate court within 15 days after its refusal. In this instance the application even though made in the court below has not yet been determined. The Lower Court merely adjourned all the applications before it to abide the decision of the Court of Appeal. Rule 4 enjoins the applicant to first make such an application to the court below except in special circumstances which makes it impossible or impracticable to apply to the court below.

Like I stated earlier, no application had been decided upon in the Lower Court and the special circumstance here is the fact that the appeal had already been entered in the Court of Appeal and by Order 4 Rules 10 and 11 the Federal High Court had ceased to have jurisdiction to entertain any application in that court.

The learned judex of the- trial court however claimed jurisdiction to entertain the application before it. In his words at page 244 of the records he stated thus:

“The summary of my finding here is that I have jurisdiction to entertain a motion for stay of execution of the judgment of this court whether or not an appeal has been entered because it is an appeal against final decision that has been entered and not appeal against interlocutory decision that has been entered this distinction must be made because once an appeal against interlocutory decision of the trial court has been entered at the Court of Appeal, the trial court ceases to have jurisdiction to take any application filed before it but where it is an appeal against final decision that has been entered at the Court of Appeal,¢ there is nothing pending at the trial court that the Court of Appeal is to be seised of except the motion for stay of execution of the judgment that statutorily the trial court is enjoined to entertain it first”.

I am indeed not enthused by that decision of the trial court. It appears that the Lower Court has made a summersault of the law and his decision to continue until the application based on a final decision of the Lower Court is¢ indeed most appropriate. In an application against a final decision, once the appeal is entered in the appellate court, there is indeed nothing before that court to be heard or determined as the records would have left the court below having been transmitted to the appellate court. I do not agree with learned senior counsel that there is no distinction between interlocutory and final decisions as envisaged in the Rules. It merely stands to reason that the Lower Court could have jurisdiction to continue with the substantive suit even when an interlocutory application is pending in the appellate court. This does not apply to final decisions. The Lower Court was clearly wrong to have assumed jurisdiction in that regard. Although Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011 which I too hold tenaciously to did not make any distinction between interlocutory and final appeals. However, the practice is that if an appeal is entered in the court of appeal against a final decision, the court below ceases to have jurisdiction as all records would have been transmitted to the appellate court. The Lower Court therefore had no business entertaining any such applications even by way of adjourning any matters to abide the outcome of the main appeal.

With regard to the second plank of appellant’s argument that the Lower Court ought not to have called on learned senior counsel to interpret Order 4 Rules 10 and 11 of the Court of Appeal Rules, I am in tandem with the argument of Learned Senior Advocate for the Appellant that the Lower Court has no jurisdiction to interpret the rules of a superior court when the wordings of the said rules are albeit clear and unambiguous. The Lower Court clearly acted ultra vires by that singular act.

It is my ardent view that whenever a rule or legislature is clear and unambiguous, there is indeed no need for any further interpretation. All the Lower Court needed to do was to simply give effect to it and not to embark on any canon of interpretation.

In the case of FEDERAL REP. OF NIGERIA V. CHIEF JOSHUA C. DARIYE (2011) LPELR 4151. This court stated as follow:

“It is trite that once the provisions of the Constitution or statute are clear and unambiguous, a court should deploy the literal rule of interpolation and give them their ordinary grammatical meanings without any interpolation or embellishment. The reason for adopting or employing the literal ca!”on of construction is simple. The function of the court, or its alter ego, the Judges, is jus dicere, not jus dare, that is, to declare the law not to make one. This timeless literal rule, which triumphed over the golden rule after months of ancient struggle for superiority, does not allow a court to stray away or sniff around for meanings of provisions beyond the legislation itself. The rule has been recognized in a legion of cases, see A. – G., Fed. v. Abubakar (supra);

Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1 001) 76; Nigerian Army v. Aminu-Kano (supra); Action”.

From the totality of all of the above summation the sole issue is hereby resolved in favour of the Appellant against the 1st Respondent. Consequently, this appeal is deemed meritorious and is hereby allowed.

Accordingly, the decision of the Lower Court delivered on the 8th day of July, 2016 is set aside. Cost of N100,000.00 is awarded in favour of the Appellant against the 1st Respondent.

Other Citations: (2016)LCN/8977(CA)

Basil E. N. Ofole V. Dr Samuel E. N. Ofole & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On the 21 – 10 – 1982, the appellant herein with one Gabriel N. Ofole, as plaintiffs, filed a claim and caused a writ of summons to issue on the same date commencing suit No 0/378/82 in the High Court of Anambra State at Onitsha against the respondents herein as defendants claiming for –
(i) A declaration that the 1st plaintiff as the Okpala of Late Johnson Ofole is entitled to call in all the properties of Late Johnson Ofole to be distributed amongst his children in accordance with the customary law of Eziowelle.
(ii) An order of the Court for the partition and distribution of all the properties of late Johnsons Ofole amongst his sons in according to Eziowelle customary law.
(iii) N500,000.00 or No. 19 Francis Street, Onitsha to be given to the 2nd plaintiff as compensation for the huge sums of money which he spent in renovating and rehabilitating the properties and maintaining them especially after the damages to properties during the civil war.
(iv) An order of injunction restraining the 1st Defendant from further managing or controlling the

properties to the exclusion of the plaintiffs before the said partition and distribution are finally effected.

After both sides had filed and exchanged pleadings as follows-statement of claim filed on 4-3-83 and statement of defence filed on 27-6-83, they opted to settle the dispute amicably.

On 22-9-1987 they filed their agreed terms of settlement in the trial Court. It was signed by all parties to the suit. The exact of the said terms of settlement is reproduced here as follows- ”
Having received the support of this Honorable Court to co-operate in effecting settlement of this case out of Court amicably and pursuant to the opportunity so offered, Barrister G.F.I. Eonu S.A.N. for the defendants and Barrister Ben. O. Anyaduba and O.C. Igwealor for the plaintiff met and discussed. A letter was written by the leading counsel for the plaintiff Ben. Anyaduba Esq. to senior Advocate of Nigeria Barrister R.R.I. Egonu on 11/2/87 to summon a meeting where the lawyers could put their heads together and assist the disputants to reach a final settlement with members of the family (disputants) who all agreed to attend and did attend the settlement on

Tuesday, 17th March 1987 at N. 40 New market Road, Onisha chambers of the Senior Advocate of Nigeria by 5 pm.
Having ventilated their feelings, regrets and misgivings after much heated arguments and when tempers died down, the parties went into proposals for settlement, on a quid pro quod basis. IT IS RESOLVED AS FOLLOWS that the properties which form the core and that is to say, the subject matter of this litigation should be shared and distributed as follows:-
1 Dr.SAMUEL N. OFOLE – should take No. 9A new Market Road. Onisha.
2. MR. SYLVANUS I. OFOLE – should take N0.18 Bright Street, Onitsha.
3. Mr. BASIL E.N. OFOLE- should take one half share of No. 19 Francis Street Onitsha.
4. MR. DAVID I. OFOLE – should take the other half share of No. 19 Francis Street, Onitsha. The said premise is made up of 6 flats and 8 shops on the ground floor.
5. MR. CHRISTIAN N. OFOLE SHOULD take No. 8 Modebe Street, Onitsha
And in addition should be paid the sum of Thirty-Five thousand Naira (N35,000.00) from the estate,
6. To GENERATE the necessary fund it is resolved that the Bida Road property should be sold off and the money realized

there from ”

On the same 22-9-1987 the trial Court entered judgment in the suit on the basis of the said terms of settlement.

By a motion on notice dated 5-10-1990 and filed on 10-10- 1990, Gabriel N. Ofole, (1st plaintiff,) applied for –
(a) An Order of the Honourable Court staying execution of the consent judgment delivered on 22/9/87 by the honourable Justice J. G. O. Aneke.
(b) A further Order of Court that none of the parties to the said suit i.e.Suit No. 0/378/82 shall take benefit, alienante dispose of or in any other manner seek to change the character or title of any of the property contained in the consent judgment until the estate debt and expenses shall have been first determined and settled as per the said judgment.
And for such order or other orders as the honourable Court may deem fit to make in the circumstance.”

It is supported by an affidavit of 19 paragraphs sworn to by the appellant herein. The 1st respondent herein swore to and filed a counter affidavit of 27 paragraphs opposing the above application. The appellant swore to and filed two further affidavits in response to the said counter affidavit.

On 21 – 3 – 1994, Learned Counsel for the plaintiffs informed the trial Court that Gabriel N. Ofole was dead and applied for his name to be struck out. The trial Court accordingly struck out the name of the late Gabriel N. Ofole from the action.

On 17-10-1994, the trial Court determined the said application, ruling that there is no basis for the application, that it lacks merit and dismissed same.

Dissatisfied with the said ruling of the trial Court, the appellant on 26-10-1994 commenced this appeal No CA/E/72/99 by filing a notice of appeal containing eight grounds for this appeal.

Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised the following issues for determination –
1. Is the Learned trial Judge right to hold that execution of a judgment can be stayed only when there is an appeal?
2. Was the appellant given a fair hearing by the learned trial Judge?

The respondents adopted the said issues for determination in the appellant’s brief.

?I will determine this appeal on the basis of the issues raised for determination in the

appellant’s brief.

Learned Counsel for the appellant argued under issue no. 1 that the consent judgment imposed an obligation on the parties to sell the Bida Road property and use the proceeds from the sale to pay the estate debts and expenses, that the respondents appropriated the proceeds from the said sale and did not pay the estate debts including the debt owed to the appellant by the estate, which he said is N500, 000.00 he spent in repairing the buildings destroyed during the civil war, that it is for the above reason that the appellant applied for an order that the execution of the consent judgment be stayed pending the determination and settlement of the estate debts and expenses and an order that the parties be restrained from alienating or meddling with the estate until the said estate debts and expenses are determined and settled, that this Court should hold that the determination and settlement of the estate debts and expenses is one of the incidences of legal occurrence that can warrant the grant of an application for an order of stay of execution of a judgment as it arises naturally from the proceeding and judgment of 22-9-87 , that none of

the parties should take benefit of the judgment without the estate debt and expenses being first determined and settled.

Learned Counsel further argued that he did not appeal against the consent judgment because he was satisfied with it, that he is only complaining of the non implementation of one of the terms of the consent judgment, that he did not apply for the stay of execution of judgment pending the determination of an appeal therefrom because he did not appeal against the judgment, that the execution of a judgment can be stayed even when no appeal is pending in certain circumstances such as the occurrence of a legal incidence which naturally arises from the proceeding and judgment of the trial Court. For the above submission, Learned Counsel relied on Order 25 Rules 9 and 10, High Court Rules of Anambra State 1988, Oladapo V ACB Ltd. (1950) 13 WACA 100, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644, Olayinka V Elusanmi & Anor (1971) 1 NWLR 277 and Inter-Contractors V UAC (1988) 2 NWLR (Pt 76) 324.

Learned SAN, for the respondents argued in reply that prayer 2 of the appellant’s application clearly suggests that there is nothing in the

consent judgment indicating that there is a condition precedent to its execution, that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment, each party to whom property was allocated ought to assume responsibility for any property rates, if any, due on the property allocated to him under the judgment. Apart from general allegations, the applicant has not established how the sum of N500, 000.00 was due to him from the estate”. The Learned SAN submitted that the correctness of the said part of the ruling became implicitly admitted by the absence of a ground of appeal complaining against it, that no valid issue can be raised to determine its correctness and all argument in respect thereto should be discountenanced and struck out.

Another argument of the Learned SAN is that the order of stay of execution of the judgment prayed for is indefinite as it is not limited to the occurrence of an event such as the determination of an appeal against the judgment, that there is no rule of Court in Anambra State that provides for

such indefinite order of stay, that the then applicable High Court Rules 1988 provided only for stay of execution of Judgment or proceedings pending an appeal against the judgment and that the trial Court correctly held that a stay of execution of a judgment can only be predicated on the pendency of an appeal against the judgment sought to be stayed,

Learned SAN also submitted that the appellant wrongly relied on the judicial authorities of Olayinka V Elusanni & Anor (1971) 1 NWLR 277, Oladapo V ACB Ltd. (1950) 13 WACA 100, Deduwa V Okorodudu (1974) 6 SC 2 and Lijadu V Lijadu (1991) 1 NWLR (Pt 169) 627 at 644 as they do not support the argument of the applicant.

Let me now determine the merit of the above arguments of both sides.

The Learned SAN for the respondents correctly submitted that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment and there is nothing for which a stay of execution of the judgment”(sic), It is settled law that by not appealing against the above holding, the parties herein

accepted the holding as correct, valid and binding upon them. See Iyoho V Effiong (2007) 4 SC (Pt 111) 90, Amale V Sokoto L. G. & Ors (2012) LPER – 7842 (SC), SPDC Nig Ltd. V Edamkue & Ors (2009) LPER 304 (SC) and Biariko & Ors V Edeh – Ogwuile (2011) 4 SC (Pt II) 96.
?The legal consequence of the appellant’s acceptance of this holding as correct and valid is that there was no basis for the application for stay of execution of the consent judgment and therefore this appeal is rendered unarguable. The appellant, having accepted as correct the holding of the trial Court that all the properties comprised in the estate had been distributed according to the terms of the consent judgment and that therefore that there is nothing in respect of which a stay of execution of the judgment could be made, cannot validly argue in this appeal as he has done, that the order of stay of execution of the judgment should have been made. A party who did not appeal against a holding or decision in a judgment or challenge it by any other legal process, cannot, in an appeal against the judgment argue contrary to that holding or decision. Such an argument is invalid. See

NBCI V Integrated Gas Nig. Ltd & Anor (2005) LPER – 2016 (SC), Amale V Sokoto LG &Ors (Supra) and Dabup V Kofo (1993) (NWLR (Pt 317) 254 at 269.
Another consequence of the acceptance of the correctness of the above quoted holding of the trial Court is that the appellant’s argument in its brief that the trial Court should have granted the second prayer in the application before it is rendered futile and invalid. An order that none of the parties to Suit No. 0/378/82 shall take benefit of any of the property in the consent judgment until the estate debts and expenses shall have been first determined and settled can no longer be made since all the said properties had already been distributed according the terms of the consent and the execution of the said judgment thereby completed. The parties to the suit had already taken benefit of the properties which were subject of the consent judgment so their taking of benefit of the said properties could no longer be restrained. In any case prayer 2 of the application is in substance the same with prayer 1 therein as it has the same effect of stopping the execution of the consent judgment. The appellant having

accepted as correct the holding of the trial Court that there was no basis for an order staying execution of the consent judgment since all the estate properties had been distributed to all parties, cannot validly argue that the trial Court should have restrained the parties to the suit from taking benefit of any estate property until the estate debts are determined and settled. Such an argument would be contrary to said holding he had accepted as correct and valid and is therefore incompetent.

It is settled law that an order to restrain an act or the occurrence of an event cannot be made after the act or occurrence of the event. Such an order would be baseless and futile. Therefore after properties had been distributed to the parties to a suit or sold to third parties in the execution of a judgment, an order to stay the execution of the judgment or restrain the parties from taking benefits of the judgment properties cannot be validly made. See John Holt Nig. Ltd V Holts Worker’s Union of Nigeria and Cameroon (1961), 1 All NLR 379 or (1963) 2 SCNLR 383 (SC), Adelaja & Ors V Ogunyade (2000), 2 NWLR (Pt 645) 376 at 384 (CA) and UBN Ltd. V Edamkue & Anor

(2003), LPELR ? 6190 (CA).

Learned Counsel for the appellant has argued in the appellant’s Brief that – “The respondent sold the Bida road property as agreed but instead of using the proceeds to settle the appellant of the expenses of 500, 000.00 which he incurred in the repairs of the properties damaged during the war and property rates he paid in respect of some of the properties they appropriated the money to themselves.
After waiting endlessly for the respondents to implement fully the terms of settlement, the appellant in 1990 filed a motion to stay the execution of the consent judgment” This argument is not supported by the terms of the consent judgment. There is no term therein entitling the appellant to the payment of the sum of N500,000.00 or any sum of money as the expenses he incurred in repairing the estate properties destroyed during the civil war. The terms of settlement and the judgment based thereon merely state that “the Bida Road Property should be sold off and the money realized there from should be ploughed into the settlement of the estate debt and expenses”. There is nothing in the terms of settlement or consent

judgment stating or indicating that the parties settled and agreed that appellant expended any such money in repairing the estate or that they had agreed that he be paid his said expenses from the proceeds of the sale of the Bida Road property.

Paragraphs 25 and 26 of the statement of claim in Suit No 0/378/82 had stated thusly –
“25. After the civil war when the plaintiffs returned to Onitsha they discovered that No. 18 Bright Street Onitsha, (A New Market Road, 3A Bright Street, No 19 Francis Street Onitsha and No 6 Mobebe Avenue Onitsha were all damaged during the war.
26. 2nd Plaintiff expended large sums of money in reconstructing renovating rehabilitating and developing the said damaged properties.”

The respondents in Paragraph 21 of their statement of defence denied the above averments thusly-
‘In answer to Paragraph 215 of the statement of claims, the defendants aver that 19 Francis Street, Onitsha was not damaged during the Nigerian Civil War or at any other time. With advance rents collected from tenants, the damages to 18, Bright Street, Onitsha and 9A New Market Road, Onitsha, were repaired.’

The parties to the suit

did not settle and agree on this claim in their terms of settlement contained in the consent judgment. Since it was not settled and agreed on by the parties in their terms of settlement, it means that both sides did not agree that the appellant incurred any such expenditure. The appellant clearly abandoned or waived the same claim by signing the terms of settlement that did not acknowledge and agree that he expended such money on the estate and so was entitled to the reimbursement of same. The consent judgment is meant to give legal effect to the terms of settlement. The parties to the suit can only enforce the rights and interests adjudged by the judgment as theirs. The consent judgment did not adjudge that the appellant incurred expenses in respect of the estate property, that the estate was indebted to him and so was entitled to be paid such debt by the estate. So, the judgment did not give him a right to be paid N500, 000.00 or any other sum by the estate. So, he had no legal right to employ the judicial process to cause the estate to pay him such money as a judgment debt accruing to him under the consent judgment because no such judgment debt exists in

the consent judgment.

The “estate debt and expenses” in clause 6 of the terms of settlement and the consent judgment required to be settled from the proceeds of the sale of the Bida Road property are not specified therein. This portion of the terms of settlement and consent judgment cannot be invoked by any of the parties to the suit to reassert his entitlement to a payment he claimed in the pleadings and gave up during settlement. The lack of specificity of “the estate debt and expenses” to be settled under the consent judgment cannot be exploited to reopen a claim that had been abandoned under the guise of the enforcement of the consent judgment. In any case, if the appellant insists that the estate is indebted to him and that he is entitled to the benefit of the said clause 6 of the terms of settlement as contained in the consent judgment, then he has to first prove the existence of such a debt and then claim for its recovery. This can only be done by a fresh originating action and not by a post judgment interlocutory process in the suit in which the judgment was rendered.

The appellant in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 of his affidavit

in support of his application deposed that –
7. That if any of the parties had as much as mounted any form of opposition to any proposal, I would never have subscribed to the consent judgment.
8. That the defendants fully appreciate that I spent not less than the sum of N500, 000.00 between 1970 when the war ended till the date of the consent judgment on the following properties which form part of our late father’s estate viz; No. 18 Bright Street Onitsha, no. 9A new Market Road, Onitsha, No 3A Bright Street Onitsha, No. 19 Francis Street, Onitsha and No. 8 Modebe Avenue Onitsha.
9. That I had settled the property rate in respect of most of these property from my personal account up to when the consent judgment was entered and it was in agreement between the parties that I shall be recompensed fully from the proceeds of sale of some of the property.
10. That up till now in spite of the agreement and the further fact that it is contained in the consent judgment. I have not been paid even a kobo nor any of the property

The 1st respondent herein in response to the above averments deposed in Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 11 and 12 of

his counter-affidavit that –
3. That a consent judgment based on terms of settlement between the parties to this suit and the solicitors acting for them has been entered in this suit before the honourable justice J. G. O. Aneke on the 22nd day of September, 1987,
4. That a copy of the terms of settlement upon which the said consent judgment of September 22, 1978 is hereto exhibited and marked Exhibit A and the certified true copy of the consent judgment and is Exhibited as Exhibit B.
5. That all parties to the said consent judgment have since taken control of the properties given to them in the said judgment and have been dealing in them as owners thereof including the plaintiff/applicant.
6. That all duly ascertained estate debts and expenses have been settled.
7. That the application is in bad faith and a continuation of the attempts to render the judgment of this Court nugatory by the plaintiff/applicant.
8. That the applicant has since the judgment of September 22 1987 nether given notice of appeal nor has refused to take his own half share of 19 Francis Street Onitsha and has been enjoying quiet possession of the said 19 Francis Street, Onitsha.

9. That the only property which was according to the said consent judgment is to be sold is the one situate at Bida Road, Onitsha.
10. That the said property located at Bida Road Onitsha had been sold and the estate debts due settled from the proceeds which amounted to N35, 000.00 (THIRTY – FIVE THOUSAND NAIRA).
11. That some of the other beneficiaries under the same consent judgment of September 22, 1987 have already sold their properties or pledged or rented same out.
12. That the plaintiff/applicant participated in the consent judgment without any pressures or pre-conditions and is also enjoying peaceable ownership of his share of the said estate, to wit, and half of 19 Francis Street, Onitsha.”

?There is nothing in the terms of settlement stating that it was the understanding and agreement of the parties that the appellant expended his money on the estate properties, and that he shall be reimbursed whenever the estate debt shall be settled first before any person could claim any benefit from the estate. So the depositions in the above reproduced paragraphs of his affidavit in support of his application are not supported by the terms of

settlement and are therefore false. The consent judgment which is as per the terms of settlement did not adjudge so. There is therefore nothing in the consent judgment stating that it shall be executed or that the parties to the suit can take benefit under it only on the condition that the estate debts and expenses are first determined and settled.

So, the appellant’s application which proceeded on the false assumption or suggestion that the consent judgment stipulated such a condition precedent to its execution was ab initio ill fated.

Let me now deal with the issue of whether the execution of a judgment can be stayed in the absence of pending appeal.
Ordinarily, the execution of a judgment can only be stayed pending the determination of a pending appeal or other legal process challenging the judgment or the execution of the judgment.
The cases of Olayinka V Elisanmi & Anor (Supra), Deduwa V Okorodudu (Supra) and Lijadu V Lijadu (Supra) relied on by the Learned Counsel for the appellant support my above proposition. See also Intercontractors V UAC (Supra) cited by Learned SAN for respondents and Dingyadi V INEC (No 2) (2010) LPELR – 952

(SC).But where no appeal against a judgment is filed or pending, but there is a legal process challenging the validity of the judgment or seeking to set it aside for certain reasons or there is legal process challenging the execution of the judgment or seeking to set it aside for certain reasons, then the execution of the judgment can in appropriate circumstances be stayed or suspended pending the determination of the legal process. In our present case there was no pending appeal against the consent Judgment and there was no pending legal process challenging the validity of the judgment or its execution. So the application for stay of execution of the consent judgment was not anchored on any existing valid legal process. It is therefore incompetent.

In the light of the foregoing, issue No. 1 in the appellant’s brief is resolved in favour of the respondents.

I will now determine the appellant’s second issue which asks
“Was the appellant given a fair hearing by the learned trial Judge?”

?Learned counsel for the appellant started his argument of this issue by stating the facts forming the basis of the complain under this issue. He stated thusly –

“On issue No. 2 which is based on ground 2 of the further grounds of appeal. Appellant argued that he was denied of fair hearing by the lower Court during the argument on the motion for stay of execution dated 5th October, 1990. It is the case of the Appellant that on the 12th day of September 1994, the learned trial judge called up the motion for argument. Appellant Counsel was not in Court Appellant informed the Court that his counsel’s absent in Court was owing to ill-health and applied for adjournment to enable his counsel be in Court to argue his motion. The trial Court instead of adjourning the motion compelled the Appellant who is a layman to move the motion in the absence of his counsel personally. Appellant argues that this is a clear case of denial of fair hearing?

I agree with the argument of learned SAN for the respondents that the events alleged in the above quoted address of learned counsel for the appellant are not supported by the record of the proceedings of the trial Court on 12-9-1994. The record of the proceedings which is at pages 42 – 43 of the record of this appeal did not state that the trial Court called up the motion

filed on 10-10-1990 for argument. The record of the proceedings of 18-7-1994 at page 41 of the record of this appeal state that in the presence all existing parties and their respective counsel the motion was adjourned to 12-9-1994 for definite hearing. The record of the said proceedings at page 42 of the record of this appeal state that “G. A. M. applicant says he relies on all paragraphs of his affidavit dated 10th October 1990 to support his application, urges to grant prayer in the motion paper. Says he was not paid N5000,000 cost of building the house.” The record do not state that the appellant explained his counsel’s absence from Court or informed the Court that his counsel’s absence in Court was owing to ill health or any reason and do not state that the appellant applied for adjournment to enable his counsel to be in Court to argue his motion.

The said records do not state that the trial Court compelled the appellant to personally move the motion in the absence of his counsel. The records do not state that the appellant is a layman. Even though the record of the proceedings of 12-9-1994 do not state the occurrence of these events, learned counsel

for the appellant has alleged their occurrence in his above quoted address and based his entire argument of this issue on these alleged events.

The appellant has not challenged the record of the proceedings of 12-9-1994 as contained in the record of this appeal as incomplete and inaccurate and has not applied to amend the record of this appeal to include the alleged events as part of the proceedings of the trial Court on 12-9-1994. Learned SAN for the respondents correctly stated the law which is now settled that the record of the proceedings of the Court as contained in the record of an appeal binds both the Court and the parties to the appeal and is the only legally recognized basis for the arguments and determination of the appeal. So allegations of events not contained in the record of proceedings are not valid for consideration and the appellate Court must determine the appeal only on the basis of what is apparent on the record see Idemudia v State (1995) 55c (pt 11) 110, Summer & Ors V FHA (1992) since 73, Fawehinmi Co. LTD V O.A.U (1998) 5SC 43 and Owope V Osanibi & Ors (2009) LPELR 3954 (CA)

The record of the proceedings of a Court is

presumed correct and accurate until the contrary is shown. The burden of rebutting its correctness and accuracy is on the party alleging that it is not correct or accurate. See Ogli Oko Memorial Farms Ltd & Anor V NACB LTD & Anor(2008) 34 NSCQR (pt 11) 157 in which the Supreme Court held that “Any person who is contending that the record of proceedings before an appellate Court is not a fair record of what happened at the Court of first instance must first formally impeach the record of proceedings,
Where the record of proceedings is not formally impeached, it is not open to the appellate Court to speculate that other things happened in the trial Courts which were not recorded in the record of proceedings.
See also Agbeofu V Brisibe & Ors (2004) LPELR- 7377 (CA).

Through the cases, it is settled that the appropriate method by which the record of proceedings of a Court can be impeached is by the filing of a sworn affidavit of the facts or events omitted from or wrongly stated in the record and serving the affidavit on the other parties to the case and the judge or registrar of the Court whose record is being impeached to avail him or

her an opportunity to respond thereto by a counter affidavit. See Peremolize Nig Ltd & Anor v Globe Motor’s Holding Ltd (2007) LPELR – 4840 (CA), Akwa v COP (2003) 4 NWLR (pt 811) FHA Supra).
Since the appellant has not formerly impeached the record of the proceedings of 12-9-1994, by an affidavit of the events that occurred in the trial Court on that day which are not recorded in the record of proceedings, the allegations of such events in the address of learned counsel for the appellant are not valid for consideration in this appeal and this Court cannot speculate that such events occurred when they are not recorded in the record of proceedings. The arguments of issue No.2 which are based on the alleged occurrence of events not recorded in the record of proceedings are speculative and invalid.

There is nothing in the record of proceedings that show an infraction of the appellant’s right to fair hearing during the proceedings of 12-9-1994. The motion on notice filed on 10-10-90 had suffered several adjournments. On 18-7-1994, it was, in the presence of all parties and their counsel, adjourned to 12-9-1994 for definite hearing. On that day, even

though appellant’s counsel was absent, appellant did not inform the Court the reason for his absence and did not apply for adjournment to enable his counsel attend Court and argue his application. The record show that he argued the motion without any prompting from the Court and made no application for adjournment to enable his counsel attend Court and argue his application. There is nothing in the record of proceedings of 12-9-1994 showing or suggesting that the appellant was deprived the right to present his case through his counsel.

Learned counsel for the appellant had argued that “Appellant concedes that there was nowhere in the record of proceedings where his application for adjournment was recorded but argues at the same time that even if there was no application for adjournment on the part of the appellant, the learned trial Judge should have suo motu, pursuant to Order 24 Rule 7 of the High Court Rules Anambra State 1988, adjourned the motion to another date to enable the appellant procure the services of the same or another counsel to argue the motion in view of the fact that an application for stay of execution involves complex issues of law

for which the appellant was not legally equipped. Following this submission, learned counsel reproduced the provisions, now corrected as Order 23 Rule 7, as follows
“The Court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the question between the parties on the merits and is not made for the purpose of mere delay. The postponement may be made on such terms as to the Court may seen just.?
This provision does not support the argument of learned counsel for the appellant. The motion was adjourned to 12-9-1994 for definite hearing in the presence of all the parties and their respective counsel. There is no law requiring the Court in a civil case to suo motu adjourn it from the date it was fixed for definite hearing because learned counsel for the applicant who was aware that the matter was coming up that date for definite hearing chose to be absent without reason, even though the applicant who is present willingly moves his motion without insisting on the presence of his counsel and did not ask for an adjournment to enable his counsel

to attend Court and present his case.
In civil proceedings, when an application or any matter is adjourned in the presence of a party and his counsel or either of them to a named date for definite hearing, the absence of the party or his counsel from Court on the date the matter is fixed for definite hearing cannot prevent the Court from proceeding with the hearing of the application or matter if it chooses to. The reason is that the said party and or his counsel had reasonable notice of the said date for the said definite hearing and had reasonable opportunity to be heard in the matter. No legal duty is placed on the Court to mandatorily further adjourn the matter due to the absence of the said party and or his counsel. The Judicial authorities of Agbaponwu V Agbapuonwu (1991) 1 NWLR (pt 165) 33, Ntukidem & Ors v Oko & Ors (1986) 5 NWLR (pt 45) 909, Ebele & Ors v Ikwelki & Ors (1995) 7 NWLR (pt 405) 91 and Adigun V A – G of Oyo State (1987), NWLR (pt. 53) 678 relied on by learned counsel for the appellant for his argument of issue No. 2 are inapplicable and therefore irrelevant to this case. In each of the Agbapuonwu, Ntukidem and Ebele

cases, there was an application for adjournment that was refused and the appellate Court had to determine if such refusal was proper. That is not the case here in which the appellant who did not apply for adjournment moved his motion and now on appeal contends that the trial Court should have suo motu adjourned the hearing of the application since his counsel was absent.
In Adigun’s case, the record of proceedings showed clearly that the complaining party was not heard before the decision of the commission of inquiry which affected his interest. That is not the case here.

In the light of the foregoing, I resolve issue No.2 of the appellant’s brief in favour of the respondents.

On the whole, this appeal fails as it lacks any iota of merit. It is accordingly dismissed.

?The ruling of the High Court of Anambra State sitting at Onitsha in suit No. 0/378/82 delivered on 17-10-94 by C.J. Okoli J is hereby affirmed and upheld. The appellant shall pay cost of 50,000.00 to the respondents.

Other Citations: (2016)LCN/8976(CA)

Keystone Bank Limited V. Okeb Nigeria Limited & Anor (2016) LLJR-CA

Keystone Bank Limited V. Okeb Nigeria Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A.

This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered by Honourable Justice M.M. Dodo on the 8thof March, 2012. The appellant dissatisfied appealed by a notice and grounds of appeal dated the 20th of April, 2012 but filed on the 24th of April, 2012.The grounds shorn of their particulars are:-
GROUND ONE:
The Learned Trial Judge erred in law when he set aside the sale of the filling station mortgage to the Appellant by the 1st Respondent as security for overdraft facilities granted to it by the Appellant.
GROUND TWO
The Learned Trial Judge erred in law when he held that Exhibit D was invalidated by Exhibit B executed between the Appellant and the Respondents.
GROUND THREE:
The Learned Trial Judge erred in law when he came to the conclusion that an unincorporated legal entity cannot be a party to a purchase transaction contrary to Section 72 of the Companies and Allied Matters Act, 2004, dealing with pre-incorporation contracts.
GROUND FOUR:
The Learned Trial Judge erred in law when he held

the sale transaction between the Appellant and Al Qudus Global Services Limited was a fraud without any proof of same beyond reasonable doubt.
GROUND FIVE:
The Learned Trial Judge erred in law when he awarded the sum of N76,014,800.00 (Seventy Six Million, Fourteen Thousand, Eight Hundred Naira) to the Respondent as general damages for loss of earnings when the said award is inconsistent with the principles of law for the grant of special damages and, therefore, unjustified.
GROUND SIX:
The Learned Trial Judge erred in law when he dismissed the Appellant’s Counter-claim on the ground that the Counter-claim was abandoned by the Appellant.
GROUND SEVEN:
The judgment of the trial Court is against the weight of evidence.

Dr. Joseph Nwobike, SAN of counsel to the appellant in his brief dated the 26th of May, 2015 and filed on the 27th of May, 2015 formulated the following issues for determination on behalf of appellant
1. Whether on a proper consideration of the documentary and oral evidence led by the parties at the trial Court, the decisions leading to and the order setting aside the sale of the Filling Station is unjustified.

(Grounds 1, 3 and 4).
2. Whether the decision of the learned trial judge invalidating the Deed of Legal Mortgage (Exhibit D) is altogether erroneous and unjustified in law. (Ground 2).
3. Whether or not the learned trial judge fell into a grave error when he held that the Appellant’s Counter claim was abandoned. {Ground 6}
4. Whether the award of damages in the sum of N76,014,800.00 is justified.

The following issues were formulated for the respondents in the brief settled by P. A. Akubo, Esq. SAN, of counsel:
1. Whether upon proper consideration of oral and documentary evidence led by the parties before the trial Court, the learned trail judge was right or justified in invalidating the Deed of Legal Mortgage, to wit, Exhibit “D and setting aside the purported sale of 1stRespondent’s Filling Station. (Ground 1, 2, 3 and 4)
2. Whether the learned trial judge was right in dismissing the Counter-Cl3im of the Appellant. (Ground 6)
3. Whether having regard to the entire circumstance, the learned trial judge was right or justified in awarding N76,014,800.00 as Special Damages or loss of earning Per Annum with effect from

October, 2005 till judgment as claimed by the Respondents.

PRELIMINARY OBJECTION:
The respondents formulated the following issues for determination in their preliminary objection:
1. Whether the appeal vide the notice of appeal dated the 20th day of April, 2012 is not tantamount to abuse of Court process and liable to be dismissed having regard to an earlier notice of appeal dated and filed on the 27th of March, 2012 by the same appellant on the same subject.
2. Whether grounds 3 and 5 of the notice of appeal dated 20th day of April, 2012 are not altogether incompetent having not directly arisen from the judgment of the trial Court delivered on the 8th March, 2012.
3. Whether ground 7 of the notice of appeal dated 20th April, 2012 ought not to be deemed as abandoned and liable to be struck out there being no issue thereof for determination by the appellant.

The issues formulated in the preliminary objection were adopted by the appellants.

On issue one of the preliminary objection it is submitted for the respondent that it is abuse of Court process for the appellant to file a notice of appeal dated the 27th of March, 2012,

contained at pages 6 to 10 of the additional record compiled by the respondents, and yet again file another notice of appeal on the 24th of April, 2012 against the same judgment of the trial Court, contained at pages 926 to 930 of Volume 2 of the record of appeal; learned counsel referred this Court to OPEKUN V. SADIQ (2003) 3 NWLR Part 814 at 485, SARAKI V. KOTOYE (1992) 9NWLR Part 264 at 188, DINGYADI V. INEC 2 (2010) 18 NWLR Part 1224Page 154 at 195, HARRIMAN V. HARRIMAN (1989) 5 NWLR Part 1196 and OWONIKOKO V. AROWOSHAIYE (1997) 10 NWLR Part 523 page 61at 77.

In response, it is submitted for the appellant while referring to TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1SCNJ 61 and TUKUR V UBA (2013) 4 NWLR Part 1343 90 at 116 that the Position of the respondents is misconceived because a process which is valid and issued in exercise of a right cannot constitute an abuse of Court process.

It is trite in a long line of decided cases that there is nothing wrong with filing more than one notice of appeal by an appellant, and where the appellant decides to withdrew one of the two notices which are of the same nature, as was done in this case, his

process would not be an abuse of process; see; DIAMOND BANK LTD v P. I. C. LTD[2010] ALL FWLR (Pt. 512) 1098, 1126, C-F. In effect, an appellant canvalidlywithdraw one of the two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal, see also SAVANNAH BANK OFNIGERIA PLC v. CBN [2009] All FWLR (Pt. 481) 939, 969; conversely, even if he does not withdraw such a notice, it is within the right of the Court to proceed to deem the earlier one as abandoned; see FRN V. DAIRO (2015) LPELR-24303-SC; accordingly this issue is resolved in favour of the appellant against the respondent

On issue two it is submitted for the respondent that ground 3 of the notice of appeal challenges the conclusion of the trial Court to the effect that an unincorporated entity cannot be a party to a purchase transaction; yet there is no such conclusion throughout the judgment of the trial Court appealed against.

That also there is no such award or claim as in ground 5 which challenges the award of N76,014,000 to the respondents as general damages, and the particulars are incongruous, because the ground talks of general damages, while the

particulars talk of special damages; he referred the Court to SARAKI V. KOTOYE supra and contended that grounds3 and 5 are incompetent.

In response it is submitted for the appellant that ground 3 questions the decision of the Court contained at pages 923 to 924 of the record of appeal, and the trial Court did indeed make those findings.

That with regard to ground 5 it questions the award of N76,014,800 to the respondents, and a party has the right to challenge the decision of the Court where the Court fails to consider evidence or make specific findings; learned counsel referred the Court to GAMBLE CO. V. G.S. & D.IND. LTD (2013) 1 NWLR Part 136 page 409 at 455.

The grounds of appeal in this case have been reproduced in earlier parts of this judgment, and it is clear from pages 923 to 924 of the record of appeal that ground 3 questions the decision of the trial Court on specific findings therein; while ground 5 questions the award of N76,014,800 and therefore well within the right of the appellant to challenge same; accordingly, this issue too is resolved in favour of the appellant, against the respondents.

Issue number three was not

contested in the reply, for reasons of which it is accordingly resolved in favour of the respondent, against the appellant, ground 7 therefore is deemed abandoned.

The resolution of issue three in favour of the respondent, makes little or no difference to the preliminary objection, overall. because it is not a threshold issue.

The preliminary objection has no merit, and is accordingly dismissed.

Having dismissed the preliminary objection, I now proceed to determine the main appeal; on the issues formulated for the respondent, because they cover all issues arising aptly.

Issue One:
Whether upon proper consideration of oral and documentary evidence led by the parties the trial Court was right or justified in invalidating the deed of legal mortgage, i.e. Exhibit D, and setting aside the purported sale of the 1st respondent’s filling station.

It is submitted for the appellant that the burden to prove the allegations in Paragraphs 10, 11, 12 and 13 of the further amended statement of claim is on the respondents; and also that the trial Court nullified the sale of the filling station by the appellant to Al Qudus Ltd based on, a) Al Qudus

was not a juristic person as at the time of sale, b) the sale was undervalued, in view of Exhibits B and D8, when contrasted with Exhibit D4 and (C) invalid execution of Exhibit D.

It is further submitted for the appellant that the law does not require that the sale of mortgaged property must be to a juristic person; and the allegation of fraudulent transaction between the appellant and Al Qudus in respect of the sale was not proved, even though it was denied by the appellant; learned counsel referred the Court to NWOBODO V. ONOH (1984) 1SC 1and JULES V. AJANI (1980) 5.7 SC 96.

That there was nothing to show that the appellant knew that Al Qudus Global Services was not registered at the material time: this shows the respondents failed to discharge the burden placed on them by Section 135 (1) & (2) of the Evidence Act, 2011, as the evidence of fraud was not conclusive or compelling; learned counsel referred the Court to SANUSI V. AMEYOGUN (1992) 4 NWLR Part 237 Page 527.

Learned counsel submitted that the mere fact that the sale was undervalued is not sufficient to vitiate the sale in the absence of bad faith or collusion, he referred the

Court to EKA-EKET V. NIG. DEV. SOCIETY LTD & ANOR (1973) NSCC Vol.8 page 373.

That the respondentsdid not prove collusion or the current value of the property as at 2005 when it was sold; he referred the Court to HAMZA V. KURE (2010) All FWLR Part 539 page 1070 at 1090.

In response it is submitted for the respondents that Exhibit B is the basis of the claim end counter claim, and it constitutes a contractual agreement between the appellant and the respondents, and therefore binds both parties; learned senior counsel referred the Court to SAKA V. IJUH (2010) 4 NWLR Part 1184 at 431 .

That conditions stated in Exhibit B were not complied with because the deed of legal mortgage executed by the respondents in line with item 7 of Exhibit B was not tendered by the appellant, so also the consent of the appropriate authority to mortgage, as provided in item 9of Exhibit B was not admitted.

That for those reasons, the appellant lacked the capacity to exercise automatic right of sale in the absence of valid and subsisting deed of legal mortgage, learned senior counsel referred the Court to FBN PLC V. SONGONUGA (2007) 3 NWLR Part1021 Page

230 at 262.

That also the deed of legal mortgage, Exhibit D, stamped on 17th of February, 2003 and registered on the 3rd of April, 2003 was not registered with the Corporate Affairs Commission as conceded by DW1during cross examination, and the purported consent to mortgage obtained from the Abuja Municipal Council elapsed before the deed of legal mortgage was eventually registered.

That fraud was pleaded and particularized at Paragraph 13 of the further amended statement of claim; that the valuation report dated 31st April, 2001, Exhibit D8 indicates that the filling station was valued at N81 Million, end the depreciated value is N45 Million, and Exhibit B shows that the forced sale value of the property is N48.32million; yet by Exhibit D4, the appellant sold the property at N35,000 far less than the market value in Exhibit D8.

That also the property was sold to a non-existent, unregistered company at the time, i.e. Al Qudus Global Services Ltd; indicating collusion and want of good faith, learned senior counsel referred the Court to IBIYEYE V. FOJULE (2006) 3 NWLR Part 968 Page 640 at 655, OKONKWO V CCB NIG. PLC (2003) 8 NWLR Part 822 Page 347

at 388, EKA-ETEH V. NIG. HOUSING DEV. SOCIETY LTD & ANOR (1973) NSCC 373 at 381 and W.A.B LTD V. SAVANNAH VENTURES LTD (2002) 10 NWLR Part 775 at 432.

Learned senior counsel further submitted that the learned trial judge averted his mind to the standard of proof in respect of the allegation of fraud, and did not merely presume the sale as fraudulent simply because it was sold to an unincorporated entity.

The respondents pleaded and particularized fraud at Paragraph 13 of the further amended statement of claim, in the purported sale of the property in dispute to Al Qudus Global Services Ltd for the sum of N35,000,000, as per page 421 of Volume 1 of the record of appeal, and Paragraphs 1e, f, 3 and 5 of the amended plaintiff’s reply to the statement of defense dated 12th of March, 2010.

It is contended for the appellant that the appellant is not by law obliged to conduct a search to ascertain whether or not the 1st respondent is an incorporated company at the time it purchased the property in dispute, and also that even if the purchaser was not incorporated at the time of purchase it still can enter into valid contracts of purchase of land, learned

senior counsel relied on Section 72 of the Companies and Allied Matter Act, 2004; that also the appellants acted in good faith in the transaction that led to the sale of the property in dispute.

Fraud is a serious crime by any standard, and in civil matter where alleged, the particulars must be pleaded and proved strictly, see FABUNMI V. AGBE (1985) 1 NWLR (Pt. 2) 299.
Fraud implies a willful act on the part of anyone, whereby another is deprived, by illegal or inequitable means, of what he is entitled to; and for the purposes of civil law it includes acts, omissions and concealments by which an undue advantage is taken of another, See ADIMORA V. AJUFO & ORS. (1988) 1 NSCC. 1005.

In proof of the allegation of fraud, the respondent, as plaintiff relied on the valuation report on the properly in dispute, dated 31st of April, 2001 by Kuma and partners, Exhibit D8, which indicates that the property in dispute, a filling station, is worth N81 Million; a depreciated value of the same property is put at N45 Million.

This assessment was reinforced by the witness’ statement on oath of DW1, deposed to on the 3rd of March, 2009, see page 359 of the record of

appeal, volume 1.

Yet the appellant sold the same property to Al Qudus Global Services Ltd for N35 Million, see Exhibit D4, a letter dated the 30th of September, 2005.

In an effort to establish fraud, the respondent was able to establish at the trial that as at 30th of September, 2005, the purchaser of the property in dispute, Al Qudus Global Services Ltd did not exist, because it was not incorporated, having been incorporated at the Corporate Affairs Commission only on the 2nd of July, 2008, see Exhibits D9, Q and R; a clear three years after the purported sale of the property in dispute.

These evidence were not contradicted by the appellant, as defendant during trial. On the contrary, they were reinforced by the testimonies of DW1 during cross examination; see page 844, lines 12 to 16 and page 845 lines 17 to 20 of the record of appeal, Volume 2.

Faced with these brazen acts of deceit and lack of good faith in the transaction leading up to the sale of the property in dispute the trial Court was compelled to arrive at the conclusion that the whole transaction smacks of fraud or lack of good faith to say the least, sufficient enough to nullify

the transaction, as pleaded and particularized; see Section 135(1) (2) & (3) of the Evidence Act 2011 and ABATCHA v. KURASTIC NIG. LTD (2014) LPELR-22703-CA.

Where fraud has been established, as in the instant case, the transaction by which the purchaser bought the legal estate will, by application of equity, be cancelled; more so as this Court is satisfied that the conclusion of the trial Court is impeccably in accord with a long line of decided cases such as ABOYADE COLE V. FOLAMI (1956) 1 FSC. 66 and OWOSHO & ORS. V. DADA {1984} 7 SC. 149 AT PAGES 175-176.

The respondents clearly discharged the burden of proof placed on them by law; bearing in mind that proof beyond reasonable doubt is not proof beyond any shadow of doubt
The findings of the trial Court at page 922 lines 6 to 15 of the record of appeal cannot be faulted.

The contention of learned senior counsel to the appellant that the learned trial judge merely presumed the sale as fraudulent simply because it was sold to an unincorporated entity is furthest from the truth, because evidently, the trial Court had shown it is well abreast of the law. especially Section 72(1) of

the CAMA, 2004, which allows for a yet to be incorporated company to enter into a valid contract

The trial Court made it very clear that the ability of an unincorporated company to enter into a valid contract is not the issue here, but that the property in dispute was sold to a non-existent company, not unincorporated; see page 923 lines of 15 to 17 of the record of appeal, Volume 2.

To drive home the point, the trial Court put it eloquently when it held to the effect that it would not have found any fault with the transaction, if the mortgaged facility was sold to an individual or corporate body that was in existence at the time of the sale, see page 924 lines 2 to 4 of the record of appeal, Volume 2.

This Court finds it equally hard to agree with learned senior counsel to the appellant that the trial Court did not evaluate the evidence led in this case, see Paragraphs 5 11.6 09 and 8-01 of the appellant’s brief, not least because evaluation is essentially the function of the trial Judge who does not share this jurisdiction with the appellate Court, see IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT 822) 308 at 343, 344 and 346: but

because the trial Court did in fact evaluate the evidence, see page 919 line 12 to 15 of Volume 2 of the record of appeal, where it held in Part:
“This Court has carefully studied all the claims at the plaintiff; it has also carefully analyzed the defense put forward by the defendant, I have gone further lo scrutinized the exhibits tendered and admitted in Court and verily verified theoral and written evidence given by PW1, PW2, DW1and DW2 respectively for their importance.”

In the circumstances therefore, this Court finds that the trial Court was right in setting aside the purported sale of the property in dispute, and accordingly resolves this issue in favour of the respondents, against the appellant.

Issue Two:
Whether the trial Court was right in dismissing the
counter claim of the appellant.

The appellant’s counter claim is contained at pages 563 to 564 of Volume 2 of the record of appeal; wherein it claimed among other things N3,334,990.69 as at September, 2007.

It is submitted for the appellant that a counter claim is a separate action and subject to the same rules of Court with regard to pleadings, and where evidence

is led in support of a counter claim, the trial Court is bound to evaluate same; learned senior counsel referred the Court to DABUP V. KOLO (1993) 9 NWLR Part 317 Page 254 at 270.

That in this case, the trial Court did not evaluate the evidence of the two witnesses who testified in support of the counter claim, but simply concluded that the claim was abandoned and proceeded to dismiss same; when he had a duty to evaluate the oral and documentary evidence led in support of the claim: learned senior counsel referred the Court to MKPINANG V. NDEM (2013) 4 NWLR Part 1344 Page 302 at 321 and DRAGETANOS CONST. NIG. LTD V. FMV LTD (2011) 16 NWLR part 1273 page 38.

That no effort was made by the trial Court to put the evidence of both parties on an imaginary scale to determine which one of them is more probative within the context of the counter claim; learned senior counsel referred the Court to OTITO V. ODlLI (2011) 7 NWLR Part 1245 Page 108

Learned senior counsel further submitted that there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplate the payment of

interest on sum borrowed.In spite of which the trial Court failed to evaluate the evidence led in support of the counter claim; he referred the Court to ARAB CHEM V. OWODUENYI (2013) 10 NWLR Part 1361 at 101.

In response it is submitted for the respondents that appellant did not substantiate its counter-claim because the two witnesses that testified for the appellant destroyed the very foundation of the counter claim, while the respondent denied the counter claim.

A counter claim as the name suggests is an independent action by the defendant, and not part of the original action, though for convenience the two are tried together, there is no separate hearing for a counter claim; the plaintiff in a counter claim gives evidence on his pleadings which would include his reply to the counter claim, where such a plaintiff fails to do so, he would be deemed to have abandoned his defense to the counter-claim, see NWAENANG V. NDARAKE & ORS (2013) LPELR-20720-CA.

Abubakar Naseh testified as DW1. his statement on oath is dated 3rd March, 2009at pages 353 to 362, of Volume 1 of the record of proceedings deposed in part as follows:
“The plaintiffs

are still indebted to the defendant in the sum of N3,334,990.69 as at September, 2007”.

This same witness stated under cross examination that the 1st respondent had a credit balance of N6 Million, thus contradicting himself fundamentally.

The witness even went as far as admitting that he had not seen any facility in the sum of N3.3 Million granted to the respondents, when he said as follows at page 845 of Volume 2 of the record of appeal:
“The credit balance of N6 Million exist after the sale N62,792,255.53. From this balance there wasn’t any credit facility taken by the 1st plaintiff from our bank. This I have never seen! From this stand I haven’t seen any facilitates of N3.3m even after the sale of the filling station. It is only somebody who physically visited the site who could tell what was happening there at the station. I have never even compile any records regarding that”

The second of the two witnesses Maimuna Mohammed stated during her cross examination at page 860 of Volume 2 of the record as follows:
“Yes the Para of my witness statement on Oath are not born out of my 1sthand knowledge. Yes from this Exh.F2 the statement of

account the 31/08/2005 entry show recorded debit balance of N28,101,914.81k. Yes a bit below I can see a credit entry of N35M on 22/09/05. That brought the account to credit balance of N62,922,53k; I couldn’t see from the date any evidence of the 1st Plaintiff borrowing any money from the Bank. I saw no where the credit balance was ever paid to the Plaintiff. Yes the last 4 sheets of Exh. F2 the entry from October 2004 up to August 2005 reflected several credit entries by the 1st Plaintiffs to his account. Meaning that the account was book out. I never see any debit in his account reading N3,334,990.69k. I have never in charge of the 1st Plaintiff’s account”

It is equally important to bear in mind that the respondents denied counter claim of the appellant, at Paragraphs 2, 3, 4, 6, and 7 of the amended defense to counter claim. dated 12thof March, 2010 at pages 394 to 395 Volume I of the record of proceedings, in addition Exhibit D5 clearly denied liability in respect of the counter claim, see pages 330 to 331 of Volume 1 of the record of proceedings and 822 to 823 of Volume 2.

Now in view of these, the contention by learned senior counsel for the

appellant, at Paragraph 7.04 of his brief to the effect that the respondents admitted the indebtedness to the appellant in the sum of N28,122,593.18 at 30th September, 2005 counts for very little.

Furthermore the contention by learned senior counsel for the appellant, also at page 25 of his brief that: “there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplates the payment of interest on sum borrowed” with respect, loses sight of both the fact and law that even if there was evidence of banker customer /relationship, if there is no evidence of debt or indebtedness established. it would not be the place at the trial Court to “envisage” or ‘contemplate’ payment of interest as argued, because Courts do not assume anything.

It is these failings on the part of the appellant to lead evidence on its counter claim that led the trial Court to the conclusion it did; because it is not simply enough to plead something, what is pleaded has to be supported by evidence, as pleadings are not synonymous with evidence. Averments in pleadings not supported by evidence are

bound to be discountenanced. See CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; MOTOH V MOTOH (2011) 16 NWLR {PT. 1274) 474.

In the circumstances therefore, the trial Court was right to hold that the appellant did not prove the counter claim; accordingly, this issue too is resolved in favour of the respondents, against the appellant.

Issue Three:
Whether having regard to the entire circumstances, the trial Court was right or justified in awarding N76,014,800 as special damages or loss of earning per annum with effect from October, 2005 till judgment as claimed by the respondents.

It is submitted for the appellant on this issue that the special damages of N76,014,800.00 awarded was not proved, and the evidence in that regard not evaluated by the trial Court; that the trial Court never said anything about the oral evidence, the demeanour of the witnesses and the documentary evidence led by the parties before it awarded damages; learned senior counsel referred the Court lo OGUNJEMILA V. AJIBADE (2010) 11 NWLR Part 1206 Page 559 at 579.

In response, it is submitted for the respondents that evidence was led in spite of the

appellants denial of the functionality of the filling station by the statement on oath of the 2nd respondent confirming the existence of a restaurant, and a super market in addition to a functional filling station.

That the special damages were proved without contradiction from the appellant; learned counsel referred the Court to HABIB NIG. BANK LTD V.OPOMULERO {2000) 15 NWLR Part 690 at 329 and SBN PLC V. CBN (2009) 6 NWLR Part 1137 at 308.

It is trite that special damages are items of loss which the Plaintiff has to particularize in his pleadings to enable him to give evidence thereto and to recover thereon, See ATTORNEY-GENERAL, OYO STATE V. FAIRLAKES HOTELS (NO 2) (1989) 5 NWLR (PT 121) 255; these type of damages must be strictly proved, see AGUNWA V.ONUKWUE (1962) 1 ALL NLR 537; (1962) 2 SCNLR 275 AND BASIL V FAJEBE 1990 6 NWLR (PT 155) 172.

The respondent averred to the special damages in this case in Paragraphs 14, 15, 16 and 17 of the further amended statement of claim dated 16th June, 2010; wherein it was stated to the effect that the filling station in dispute was actively taking delivery of products, and had in addition a

restaurant and a super market, see page 474 of Volume 1 of the record of proceedings.

The appellant did indeed contend that the filing station was not functional and therefore could not have suffered the loss claimed; see Paragraphs 14, 15, 16 and 17 of the emended statement of defense.

The respondents in support of their pleadings on the functionality of the tilling station and the existence of a restaurant and a supermarket led evidence at Paragraphs 1a, b, c, d, e, f, g, h, l, j, k, l, m, n,and o, as well as Paragraphs 2, 6, 9 and 10 of the statement on oath of the 2nd respondent deposed on the 25th of November, 2009as well as the statement on oath of Samuel Chimezie Eguzuowa, the PW3 at Paragraphs 4 to 17, see pages 225 to 226 of Volume 1 of the record of appeal.

Clearly the evidence of PWS1and 3 with regard to the functionality of the filling station and the corresponding loss of earnings was reinforced by Exhibits M to M22, N to N30 and P to P25 at page 834 of Volume 1 of the record of appeal, see U.T.B V. OZOEMENA(2007) ALL FWLR Part 358 1014 at 1049.

The contention of learned senior counsel that the evidence in this regard was not evaluated

is not justified, because the trial Court did evaluate the evidence before it before arriving at the decision it did, that much is very clear; and most importantly it is a trite principle of law that the function of evaluation of evidence is essentially that of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (Pt. 548) 118; Where the trial Judge has unquestionably evaluated the evidence before him, it is not the business of the appellate Court to disturb such findings of facts and substitute its own unless such findings are perverse, See WOLUCHEM v. GUDI (1981) 5 SC 291; ENANG v. ADU (1981) 11-12 SC 25: IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT. 822) 308 at 343, 344 and 346.

This Court is satisfied that the trial Court was justified in the circumstances in awarding the sum of N76,014,800. 00 as loss of earnings from the 22nd of October, 2005 as claimed; this issue too is accordingly resolved in favour of the respondents, against the appellant.

Having resolved all the three issues for determination in favour of the respondentsagainst the appellant, the appeal fails for

lack of merit, and it is accordingly dismissed.

Cost of N50,000.00 is awarded in favour of the respondents, against the appellant.

Other Citations: (2016)LCN/8975(CA)