Chief Adebisi Adegbuyi V. All Progressive Congress (Apc) & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division (‘the court below’ for short) delivered on 24th May, 2012. Therein, the decision of the Federal High Court, Abeokuta (trial court) delivered by Ajumogobia, J. on 1st day of April, 2011 was affirmed. The appellant has decided to further appeal to this court.

It is apt to state briefly the salient facts of this matter. The appellant as plaintiff at the trial court instituted his action against the respondents, as defendants, by way of Originating Summons on 8th February, 2011. Thereat, he claimed that:-

(a) The 1st respondent did not conduct a primary election in the Senatorial District in accordance with section 87 of the Electoral Act 2010 (as amended).

(b) That he (the plaintiff) was the only person qualified to be the candidate being the only aspirant that complied with the party guidelines.

(c) That the 2nd respondent was handpicked contrary to statutory provisions.

Sequel to the above, the appellant, as plaintiff, made supplication for three declarations, put briefly, as follows:-

“1. That by virtue of being the only Senatorial aspirant for the District who complied with provisions of section 87 of the Electoral Act, 2010 and relevant guidelines of the 1st respondent, his name should be forwarded to the 3rd respondent as the duly nominated candidate representing Ogun East Senatorial District.

2. That the handpicking or imposition of the 2nd defendant by the 1st defendant is null and void.

The plaintiff then prayed for three Orders as follows:-

3. An order setting aside the purported nomination of the 2nd defendant by the 1st defendant as the Senatorial Candidate for the stated District.
4. An order directing the defendant to recognize and accept the plaintiff as the bona fide Senatorial candidate of the District on the platform of the 1st defendant.
5. An order of perpetual injunction restraining the 3rd defendant from recognizing the 2nd defendant as Senatorial candidate of the stated District in the general election fixed for 2nd April, 2011.”

The respondents filed counter-affidavits. Two officials of the 1st respondent maintained that the appellant withdrew his intention to be considered as a candidate vide his letter marked Exhibit ‘C’ to the first counter-affidavit and Exhibit ‘A’ in the 2nd one. They asserted that the 2nd respondent was the preferred candidate who emerged as the sole candidate. A special congress was held to confirm his candidature in tune with section 87(6) of the Electoral Act, 2010 (as amended).

It is of moment to note that the issue of the appellant’s withdrawal from the Senatorial race was not challenged or controverted at any time by the appellant. He did not deny the issuance of the withdrawal letter but he maintained that same was not dated.

The trial court did not make any pronouncement in respect of the withdrawal letter signed and sent by the appellant to the 1st respondent. The trial court considered the affidavits and counter-affidavit before it and dismissed the Originating Summons and thereafter ordered pleadings to be filed and set a date for hearing.

The appellant felt unhappy with the position taken by the trial judge and appealed to the court below.

Thereat, he maintained that:-

(a) The trial court cannot order pleadings to be filed after dismissing the suit.

(b) The Court in its ruling said primary election was not conducted.

(c) The judgment of the court was modified after being (sic) read in the open court.

The court below heard the appeal and dismissed same in its judgment handed out on 24th May, 2012. The court below found that –

(a) it cannot be said that the learned trial judge made a specific finding that primary election was not held in accordance with section 87 of the Electoral Act.

(b) that the use of the word ‘dismissal’ in dismissing the Originating Summons was a ‘slip’ when reading the whole judgment together and that the appellant could not have been prejudiced by the slip.

(c) The appellant had not proved that the record of the court was modified having not shown a contrary record and there is a presumption of correctness of the court records until the contrary is proved.

The appellant still felt irked with the position taken by the court below and appealed to this court.

It is appropriate at this point to observe that the 2nd respondent, in his Notice of Preliminary Objection, challenged the competence of grounds 1, 3, 4 and 5 as contained in the Amended Notice of Appeal filed by the appellant on 12th May, 2014.

Senior counsel for the 2nd respondent maintained that the stated grounds are not complaints against the reasons for the decisions of the Court below. He felt that the grounds are prolix, verbose, unwieldy and argumentative. He stressed that the complaints in the stated grounds are academic and superfluous and the offensive grounds of appeal are liable to be struck out. In support, he cited the cases of Abdullahi v. Oba (1998) NWLR (Pt. 554) 420 at 428; Adeleke v. Ajani (2002) 8 NWLR (Pt. 768) 26 at 43; First Bank of Nigeria v. Njoku (1995) 3 NWLR (Pt. 384) 457 and Nsirim v. Nsirim (1990) 3 NWLR.

Senior counsel observed that the substantive suit at the trial court is no longer alive as same was struck out on 8th March, 2012 for want of diligent prosecution. He stated that there is a pending appeal at the court below challenging the striking out of the suit. He strongly asserted that the legal plank upon which this appeal rests on has been removed. The appeal, senior counsel submits, has become academic. In support, he cited the case of Nwora & 3 Ors v. Nwabueze & Ors (2011) 12 SC (Pt. III) 1 at 22. He urged that the suit be dismissed in its entirety.

On behalf of the appellant, learned counsel submitted that the objection is unfounded in all respect. He maintained that each of the stated grounds with their particulars attacked specific findings and decision of the Court of Appeal. He maintained that there is no difficulty in identifying the precise complaint of the appellant. He cited the case of Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614 at 621.

It should be noted that the whole purpose of a ground of appeal is to give notice to the other side and the court the nature of the grouse or complaint which the appellant has against the decision of the lower court.

A close look at the attacked grounds of appeal shows that the passages in the judgment complained about, were quoted in clear terms and then followed by particulars. The stated grounds alleged error or misdirection in law. They are, no doubt, valid grounds. Refer to Silencer & Exhaust Pipes Co. v. Farah (1998) 12 NWLR (Pt. 579) 624 and Babba v. Tafashiya (1999) 5 NWLR (Pt. 603) 468 at 474.

I cannot surmise how this appeal is academic.

The final resolution of vital issues will confer benefit on one of the parties and the entire controversy will be resolved once and for all times. I strongly feel that the preliminary objection is not maintainable. It is accordingly overruled. The appeal shall be considered on its merit; anon.

When the appeal was heard on 3rd of December, 2014, learned counsel/senior counsel to the respective parties adopted and relied on briefs of argument which were filed. The appellant’s counsel urged that the appeal be allowed. Senior counsel for the 2nd respondent as well as counsel for the 3rd respondent stressed that the appeal should be dismissed. On behalf of the appellant, three issues formulated for the determination of the appeal read as follows:-

“3.1 Whether, upon its holding that it was ‘not sufficiently convinced that primary election was held in accordance with Electoral Act’, and this being the core question in the appellant’s Originating Summons, the Court of Appeal was right in upholding the trial court’s directive to the parties to file pleading when –

(i) No other issue which derogates from the core question or raise any dispute/controversy concerning its determination was directly/specifically identified by the trial court and the Court of Appeal;

(ii) Sufficient materials needed to determine the admissibility of Exhibit ‘A’ (Page 250 of the Record of Appeal) was before the trial court and no further occasion for calling oral evidence had arisen (Grounds 1 and 4 of the Notice of Appeal).

3.2 Was the trial court’s decision dismissing the appellant’s action begun by Originating Summons a slip as held by the Court of Appeal If not, having dismissed the originating summons, was there any action the trial judge could further hear by pleadings (Grounds 2 and 3 of the Notice of Appeal).

3.3 Whether the addition made privately in chambers to the decision of 1st April, 2011 by which the parties were directed to file pleadings after the dismissal of the action, was not proved, given that:-

(i) The trial judge was well notified of the affidavit deposition of Oluwakemi Wey of counsel, the trial judge being the sole judge (administrative and presiding) of Abeokuta Division, who had custody, control and knowledge of all processes filed in her Registry;

(ii) the respondents did not legally contradict or deny the fact in the said affidavit (Ground 5 of the Notice of Appeal).”

On behalf of the 1st respondent, the three issues decoded for determination of the appeal read as follows:-

“8.1 Whether the Court of Appeal had answered extensively and conclusively the core and the fundamental question relating to conduct of a primary election and other issues incidental to it –

(a) Who is to conduct primary election

(b) Whether the letter of withdrawal was legally issued.

(c) Whether an aspirant who withdraws can validly complain about the election.

(d) Whether the courts can listen to such an aspirant.

(e) Whether an election can be done in accordance to section 87(6) of Electoral Act.

8.2 Whether the Court of Appeal was not right in its decision that judgment should be read together and that the use of the word ‘dismissal’ was a slip.

8.3 Whether the Court of Appeal was not right in holding that there is a presumption of correctness of the record of proceedings until contrary one is presented or proved.”

The two issues submitted for determination on behalf of the 2nd respondent, read as follows:-

“1. Whether the Court of Appeal was right in its conclusion that there was no evidence to contradict the printed record of appeal and that the accusation of alteration of record against the trial judge was incompetent and unproved.

2. Whether the Court of Appeal was not right having regards to the materials contained in the printed record in affirming the trial court’s decision that issues are in controversy and that filing of pleadings and calling of oral evidence was necessary and further that the use of the word ‘dismissal’ in the trial court’s ruling is a mere slip.”

The core and fundamental issue of the withdrawal of the appellant from the Senatorial race as contained in page 250 of the record deserves a definite determination as seriously canvassed by the learned counsel for the 1st respondent. As stated by him, it is correct that as contained in the 1st respondent’s brief of argument before the Court of Appeal, at pages 371-375 the issue was properly canvassed. But the court below did not consider same. It erroneously maintained that there was no argument in support of same. The court below had an abiding duty to consider such a determinant issue which touches on jurisdiction, as it were. The court should pronounce on all issues as an intermediate court. It should not restrict itself to one or more issues which in its opinion may dispose of the matter. See Xtoudos Ser. Nig. Ltd. v. Taisei W. A. Ltd. (2006) WRN 46 at 37.

Since it is an issue touching on jurisdiction, it has again been brought to the fore before this court. It shall be considered, anon.

The said letter of withdrawal is contained on page 250 of the record of appeal. It reads as follows:-

“Action Congress of Nigeria

OGUN STATE

Dear Sir,

NOTICE OF WITHDRAWAL OF MY CANDIDTURE

I hereby voluntarily withdraw as a candidate of the Action Congress of Nigeria for the post of SENATOR in the April, 2011 election for personal reasons.

I express my gratitude to the party and my supporters. I assure the party of my continuous loyalty.

Thank you.

Yours Faithfully,

……………….

Signature

ADEGBUYI ADEBISI

Name

In the presence of:

National Secretary: Oluwaranti Oyebade

National Organizing Secretary: David Oluwole Adeniyi.”

The only point raised by the appellant in respect of his letter of withdrawal from the Senatorial race of the stated District is that the letter was not dated. The letter, no doubt, is not dated. But it refers to the 2011 election. As such, the intention of the appellant is clear. With due regard to the appellant, such a prank did not catch the fancy of this court. Such a child’s play that can inhibit a due determination of such a substantial issue must be shunned. See Oloruntoba-Ojo v. Abdulraheem & Ors (2009) 26 WRN 1.

It is significant that the appellant did not deny that he wrote the letter of withdrawal. It must be presumed that he admits the content and intendment of the letter. A court of record can conveniently take same as established and act on it. See: Agbanebo v. UBN Ltd. (2000) 7 NWLR (Pt. 666) 534 at 549; Edopolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511 at 513; Bello v. Eweka (1981) 1 SC. 101.

The appellant, having withdrawn from the race, the 2nd respondent became the preferred candidate. The State Chairman of the 1st respondent swore to an affidavit that the primary election was conducted by a special congress which was in accord with the dictates of section 87(6) of the Electoral Act, 2010 (as amended) which stipulates as follows:-

“Where there is only one aspirant in a political party for any of the selective positions mentioned in sub-section 4 (a), (b), (c), and (d), the party shall convene a special convention or congress at a designated centre on a specific date for confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the party.”

It is basic that the appellant who withdrew from the contest cannot validly complain about the conduct of the primary election. He has no competence and authority to complain or institute an action. He cannot be allowed to blow hot and cold at the same time. He has no capacity to approach the court to enforce any right from the same primary. See: Buhari v. INEC & Ors (2008) 18 WRN 36; Bamigboye v. Saraki (2010) 14 WRN, 125 cited by 1st respondent’s counsel.

The appellant must realize that it is the political party that has exclusive power to conduct primary election. A court of record should not dabble into political question which remains the exclusive preserve of political parties that should be allowed to do their things. Such powers cannot be interfered with by the courts. See: Onuoha v. Okafor (1983) 2 SCNLR 244; Effiom v. CRS INEC (2012) 43 NSCQR 346.

The appellant had no answer in respect of this very crucial and determinant issue. It is accordingly resolved in favour of the respondents.

The next issue that is worthy of consideration reads as follows:-

“Whether the Court of Appeal was right in its conclusion that there was no evidence to contradict the printed record of appeal and that the accusation of alteration of record against the trial judge was incompetent and unproved.”

The allegation of the appellant in respect of this issue is a very grave one. He alleged that the trial judge tinkered with her Ruling in chambers. The affidavit of Oluwakemi Wey maintained that the trial judge altered or modified her record by adding the following, which was not part of the ruling delivered in the open court –

“Accordingly, the plaintiff is ordered to file his pleadings within 14 days from date hereof. The defendant is given 7 days to file their defence from the date of service of the plaintiffs pleadings.”

The allegation is a very weighty one which touches on the integrity of the learned trial judge. The appellant maintained that this court should apply due courage by denouncing the trial court’s style of altering a judgment in chambers after same had been delivered in the open court. According to counsel, such practice is alien to our jurisprudence and ought to be censored by this court in strong expression in order to send the right message to other judicial officers with such proclivity. What a sagacious call by a counsel to this court.

The counsel urged the court to use the learned trial judge as a ‘scape goat’ so that other judges involved in such unwholesome practice would get the right message. Learned counsel for the appellant should appreciate that the act of recording proceedings in court is a judicial act which enjoys presumption of regularity under the law to use the language of Mallam Yusuf Ali, SAN for the 2nd respondent.

The appellant who wants to impugn the integrity of the learned trial judge has a binding duty to prove the contrary. See Shitta Bay v. Attorney-General Federation & Ors. (1998) 10 NWLR (Pt. 570) 392 at 426; Sommer v. Federal Housing Authority (1982) 1 NWLR (Pt. 219) 548.

It is incumbent on the appellant to realize that the court and the parties are bound by the record of appeal as certified and it is presumed correct unless the contrary is proved. A party who challenges the correctness of the record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. Such affidavit must be served on the judge or registrar of the court concerned.

The court below found that the affidavit of Oluwakemi Wey was not served on the learned trial judge or the Registrar of the court for them to react to same. It found that there is absolutely no evidence to fault the printed Record of Appeal. Further more, in so far as the learned trial judge was not given any opportunity to be heard on the complaints made by the appellant’s counsel, the complaint and/or accusation is incompetent and is therefore discountenanced. I agree completely with the decision of the court below.

The appellant failed to prove his allegation in tune with the required procedure and the law. The invitation to this court to censore the learned trial judge hit the rock. It is hereby refused. A party along with his counsel should be wary of attempting to destroy the court unjustly. I say no more. The issue is resolved against the appellant.

The last issue which should be touched briefly reads as follows:-

“Whether the Court of Appeal was not right in its decision that judgment should be read together and that the use of the word ‘dismissal’ was a slip.”

The court below found that ‘the trial judge could not have intended to use the word ‘dismissal’ after stating clearly that the issues are triable and evidence would have to be taken.’ It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. The case of Onajobi v. Olanipekun (1985) 11 SC (Pt. 2) 156 is in point.

This court said it clearly in Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367 per Niki Tobi, JSC that:-

“In order to pick faults in judgment of a trial judge, appellate court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the court. An appellate court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment.”

I cannot fault the approach of the court below. The reasoning process of the judge before the use of the word ‘dismissed’, to my mind, after a slow and careful reading of same, shows that it is a slip. The law allows a court to rectify any slip in a judgment as long as it does not amount to a miscarriage of justice.

See Yakubu v. Omolaboje (2006) WRN 23 at 176. A party should not employ technicality to frustrate the justice of a case. See Falobi v. Falobi (1976) 9-10 SC. 1, (1976) 1 NMLR 169.

The court below was right when it found that the word ‘dismissal’ employed by the trial judge at the material point in her Ruling is a mere slip. The issue is also resolved against the appellant.

I come to the conclusion that the appeal lacks merit. It is hereby dismissed by me. The Originating Summons is dismissed. The appellant shall pay the sum of N100,000.00 as costs to each of the 1st and 2nd respondents.

BODE RHODES-VIVOUR, J.C.A.: For the reasons given by my learned brother, Fabiyi, JSC which I was privileged to read in draft I agree that this appeal should be dismissed with cost as proposed by his lordship. This suit was instituted on the 8th day of February, 2011. It was filed to determine who won the primaries of the defunct Action Congress Party (now APC). The primaries were conducted to select the party’s candidate for Ogun East Senatorial Seat for the General Elections of 2011. This is a pre-election matter. The General Elections conducted in 2011 was to elect senators for senate for a tenure which ends in 2015. Primaries to select candidates to contest the 2015 General Elections have been conducted and concluded by all Political Parties.

It is slowly becoming comical that the courts are still considering and trying to determine who won primaries in 2011 in 2014. It is about time a time limit is placed on such actions. It is seriously suggested that pre-election matters should be determined before the elections are conducted. In that regard such causes of action should be fast tracked with time limitations of two weeks for hearing in each tier of our court system.

This, no doubt is in the best interest of all concerned.

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SC.257/2012