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Engr. Newton Ikechukwu Ugwuegede V. Hon. Dr. Patrick Aziokoja Asadu & Ors (2018)

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SIDI DAUDA BAGE, J.S.C.

This is an appeal against the Judgment of the Court of Appeal, Abuja Division, Coram: Moore A. A. Adumein, J.C.A. (presiding), Tani Yusuf Hassan, J.C.A. and Muhammed Mustapha, J.C.A., delivered on 1st July 2015 in Appeal No. CA/A/177A/2015 where the Lower Court upheld the findings of fact made by the trial Court and affirmed the decision of the Federal High Court, Abuja in suit No. FHC/ABJ/CS/50/2015 delivered on 1st April 2015 and dismissed the appeal filed by the Appellant. Still being dissatisfied, the Appellant brought this appeal vide a Notice of Appeal dated 14th July, 2015 raising 8 grounds.

SUMMARY OF FACTS:

The Appellant, the 1st Respondent and other aspirants participated in the Peoples’ Democratic Party (PDP) Party Primary election conducted on 6th December 2014 to enable the 2nd Respondent (PDP) produce its candidate to contest in the election for the Federal House of Representatives for Nsukka/Igbo-Eze South Federal Constituency. At the primaries, 1st Respondent emerged as the aspirant that scored the highest votes cast in the said primary election of 6th

December 2014 but his name was not submitted as candidate of the 2nd Respondent.

The 1st Respondent protested to the Appeal panel set up by the National Working Committee (3rd Respondent) on behalf of the 2nd Respondent. The Appeal Panel heard the appeal and upheld the appeal of the 1st Respondent and confirmed the 1st Respondent, as against the Appellant, was the aspirant that scored the highest number of votes cast in the primary election. The 1st Respondent was consequently issued with the requisite forms for the general election to have his name submitted to INEC (the 4th Respondent). This notwithstanding, the 2nd Respondent still failed, refused and neglected to submit the 1st Respondent’s case to the 4th Respondent.

All efforts made by the 1st Respondent to have the issue resolved within the party structure failed as a result of which he approached the Federal High Court in Suit No.FHC/ABJ/CS/50/2015 by way of originating summons dated 2nd February 2015 for the determination of the issues or questions contained therein. On 1st April 2015, the Court delivered its judgment and granted the reliefs sought by the 1st Respondent.

Not being

satisfied, the Appellant herein appealed to the Court below in Appeal No. CA/A/177A/2015. The appeal was lodged at the Court of Appeal, Abuja Division. The appeal was heard, and on the on 1st July 2015, the Lower Court delivered its judgment in the appeal wherein it dismissed the appeal as lacking in merit. Still not satisfied, the Appellant has approached this Court, having brought this appeal vide a Notice of Appeal dated 14th July, 2015 raising 8 grounds.

ISSUES FOR DETERMINATION:

In its Appellant’s Brief dated and filed 13th March, 2017, the Appellant formulated two issues for determination by this Court at pages 7-8, namely:-

“(i) Whether the Court below rightly upheld the finding/decision of the learned trial Court that from a correct reading of the documents including the affidavits on which the 1st Respondent herein predicated his claims in the Originating Summons, the Court has the jurisdiction under Section 87(9) of the Electoral Act, 2010, as amended, to entertain/adjudicate on the dispute in this Suit. (Distilled from Grounds 1, 2 and 7).

(ii) Having regard to the nature of the 1st Respondent’s suit in the Originating Summons

particularly in the light of the potential conflicts in the affidavits and counter affidavits as well as the documents on which the Parties relied, was the suit appropriate for determination under Originating Summons procedure. (Distilled from Grounds 3, 4 and 5)

On its part, the 1st Respondent also formulated two issues for determination at pages 9-10 of its Respondent’s Brief of Argument dated 6th June, 2017 but filed 8th June, 2017, as follows:-

“Whether from the documents before the Court particularly exhibit P7 of the 1st Respondent which shows the name of the Appellant as one of the contestants in the PDP party primary election of 6th December 2014 and exhibit NU1 of the Appellant and Exhibit 01 of the 2nd and 3rd Respondents which also show the name of the Appellant and 1st Respondent as contestants in the PDP Party Primary election of 6th December 2014, whether this Court has jurisdiction to entertain the suit predicated on Section 87(9) of the Electoral Act 2010 (as amended) for breach of Section 87(1), 87(4)(c)(i) and (ii) of the Electoral Act 2010 (as amended). Distilled from grounds 1, 2 and 7 of the Notice of Appeal.<br< p=””

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ISSUE NO. 2

Having regard to the affidavit evidence and documents attached to the affidavit of the Parties and forming part of the affidavit evidence of the parties as well as the findings of fact made that originating summons in the circumstances of the case was properly used to commence the suit of the 1st respondent whether the finding is perverse to justify interference by this Court and hereby set aside the decision of the two Lower Courts that originating summons was properly used to commence the above suit (Grounds 1, 2 and 7 of the Notice of Appeal).”

I have adverted attention and given deep thoughts to all the issues and arguments canvassed by the Appellant and 1st Respondent in all three different briefs filed in respect of this appeal, namely the Appellants Brief of Argument dated 13th March, 2017, the 1st Respondent’s Brief of Argument filed 8th June 2017 and the Appellant Reply Brief dated 28th June, 2017.

The parties have formulated issues in a rather convoluted manner. The two issues in this appeal relate to jurisdiction of the trial Court under Section 87 of the Electoral Act and jurisdiction based on the propriety or

otherwise of the mode of commencing the suit leading to this appeal by way of originating summons. Both are jurisdictional in con and ought to be so integrated as one. These issues also resonate loudly in the two issues both the Appellant and 1st Respondent have formulated in their briefs. It is in view of the foregoing that I have integrated the two issues into one sole issue which sufficiently answers the main issues formulated by the parties in this appeal. All other ancillary arguments and issues are duly considered within the confines of the main issue formulated from the issues respectively raised by the parties.

Keeping with modern approaches to legal writing which dictates brevity and clarity, I have modified, integrated and simplified the issue in this appeal thus:-

“Whether the Court below was right in upholding the finding/decision of the learned trial Court that the suit was validly commenced by the originating summons and that it has jurisdiction to entertain the suit as predicated on Section 87(9) of the Electoral Act 2010 (as amended) on the ground of a breach of Section 87(1), 87(4)(c)(i) and (ii) of the Electoral Act 2010 (as

amended).”

CONSIDERATION AND RESOLUTION OF RELEVANT ISSUE:

The learned Appellant’s Counsel conceded that the established principle is that where there are concurrent findings of fact by the Courts below, this Honourable Court will not usually interfere. To amplify this well settled position of the law, Counsel cited the case of ENANG VS ADU (1981) 11 – 12 S.C. (Reprint) 17 at 275-20.

However, the learned Counsel contended that “an appellate Court should ex debito justiciae interfere where there has been a miscarriage of Justice as where the argument appealed is perverse or not the result of a proper exercise of judicial discretion. It should also interfere where there has been some violation of some principles of law or procedure…” See: ADIMORA VS AJUFO

(1988) 3 NWLR (pt. 80) 1 at 15, paras F-H.

The Appellant contended that in the instant case, the learned trial Court manifested its misconception of the documentary evidence in the case when it was identifying the processes on which the 1st Respondent relied in the Originating Summons.

The Appellant argued further that the learned trial Court was influenced in its decision that Exhibit P.7 (the alleged result of the primary election relied on by the 1st Respondent) was superior because, amongst other things, “the primary was conducted with the “3-man Ad hoc delegates lists’ which confirmed the “authorized list” and which the Appeal Panel in its Report, the Exhibit “P8″ attached to the Originating Summons, confirmed as the one APPROVED by the 1st and 2nd Defendants as stated in page 1448, lines 18-24. Vol. 2 of the Records.”

The Appellant contended that it is obvious that the findings/conclusion on which the learned trial Court based its Judgment were heavily, swayed by its reliance and opinions about the aforementioned Exhibits P8 (Appeal Panel Report), P2 and P1 (the list of delegates and Judgment in Suit No:FHC/ABJ/CS/816/14) and P6, P6-1 –

P6-82.

The Appellant submitted that from the totality of the evidence in this Suit, the trial Court as well as the Court below had no jurisdiction to entertain the 1st Respondent’s claim under Section 87(9) of the Electoral Act 2010 (as amended) – particularly, in the light of the 1st Respondent’s admission that he won in the “legitimate primaries held by the electoral team sent from our Party office in Enugu.” In its final submission, the Appellant respectfully submit that the injustice in the instant case requires the intervention of this Honourable Court to interfere in the perverse findings of the Court below. The Appellant prayed this Court to so interfere, resolve this issue in favour of the Appellant, and allow this appeal.

The 1st Respondent debunked the claims of lack of jurisdiction made by the Appellant on the ground that Section 87(4)(c)(i) of the Electoral Act 2010 (as amended) deals with nomination and party primary elections of political parties for candidates to the Senate, House of Representatives and the State House of Assembly. The 1st Respondent asserted that, the conduct of the party primary election is guided by Section

87(4)(c)(i) of the Electoral Act 2010 (as amended) and Electoral Guidelines of a political party as in the PDP Electoral Guideline 2014, Section 87(4)(c) (ii) of the Electoral Act 2010 (as amended) which provides:-

“The aspirant with the highest number of votes at the end of voting shall be declared the winner of the Primaries of the party and the aspirant’s name shall be forwarded to the Commission (INEC)-as- the candidate of the party.

The 1st Respondent pointed out that the PDP Electoral Guideline 2014 incorporated the above provision of Section 87(4)(c)(ii) of the Electoral Act 2010 (as amended). The PDP Electoral Guideline also provides that a party dissatisfied with the result of the Election shall within 48 hours of the election appeal to the PDP Electoral Appeal Panel. The 1st Respondent stressed further that Exhibit P7 which was the result of the election relied on by the 1st Respondent also had the name of Appellant as an aspirant. So in both exhibits NU5 the result of the election returning the Appellant and Exhibit P7, the result of the election returning the 1st Respondent both parties were aspirants in the same PDP Party

primary election of 6th December 2014. The 1st Respondent referred to the case of EMEKA VS. OKADIGBO (2012) 18 NWLR (Pt.1331) 1 at page 7, where the Supreme Court, per Rhodes Vivour J.S.C. held;

“where there are two Primaries conducted by the NEC of PDP, a situation best imagined, it is only then it can be said that there were two parallel primaries. The authentic primary could easily be resolved by documentary evidence available.”

The 1st Respondent contended that since by virtue of Exhibit 7, both the Appellant and 1st Respondent were aspirant and contestants in the December 6, 2014 primaries, the 1st Respondent was qualified to file the originating summons and the trial Court was right to have assumed jurisdiction to hear and determine same. The 1st Respondent relied on the case of UKACHUKWU VS PDP (2014) NWLR (Pt.1435) pages 134, 203 to draw home the contention that the 1st Respondent suit at the trial Court was cogsnisable and that the trial Court was right to have assumed jurisdiction.

I have considered the arguments for and against as put forward by the parties in this appeal. The starting point is to picture the relevant provisions of

the Electoral Act.

(1) A political party seeking to nominate candidates for elections under this Act shall hold Primaries for aspirants to all elective positions.

(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.

(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.

(4) A political Party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:-

(a) in the case of nominations to the position of Presidential candidate, a political party shall:-

(i) hold special conventions in each of the 36 States of the Federation and Federal Capital Territory, where delegates shall vote for each of the aspirants at designated centres in each State Capital on specified dates,

(ii) a National Convention shall be held for the ratification of the candidate with the highest number of votes,

(iii) the aspirant with the highest number of votes at the end of

voting in the 36 States of the Federation and Federal Capital Territory, shall be declared the winner of the Presidential primaries of the political party and the aspirants name shall be forwarded convention;

(b) in the case of nominations to the position of Governorship candidate, a Political Party shall, where they intend to sponsor candidates

(i) hold special congress in each of the Local Government Areas of the States with delegates voting for each of the aspirants at the congress to be held in designated centres on specified dates,

(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and aspirant’s name shall be forwarded to the Commission as the candidate of the Party, for the Particular State:

(c) in the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a Political party shall, where they intend to sponsor candidates:-

(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of

the aspirants in designated centres on specified dates; (ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the Primaries of the party and the aspirants name shall be forwarded to the Commission as the candidate of the party; and

(9) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.

The necessary question to ask is whether given the circumstances of this case, the 1st Respondent was right to have filed a suit at the trial Court pursuant to the above provisions, particularly the portion amplified. The answer, to the best of my knowledge of the law is in the affirmative. This is because, in the case of UKACHUKWU VS P.D.P. (2014) NWLR (Pt.1435) pages 134 and 203, this Court held, per Ogunbiyi, J.S.C. that to bring an action under Section 87(9) of the Electoral Act 2010 (as amended) such a plaintiff must show;

(i) there must first have been a primary for the selection or nomination of a candidate by a political party;

(ii) the

exercise for the primary must have been in respect of an election;

(H) the complainant must be an aspirant who ought to have taken part in his political party’s primaries and that the political party designate did not comply with a provision of the Electoral Act or its political guidelines for selection done.”

As held in the above case, the 1st Respondent, having shown and satisfied the required conditions necessary for his instituting an action as he did, the Federal High Court was rightly seized of the subject matter which was within its jurisdiction as provided under Section 87(9) of the Electoral Act, 2010 (as amended). The Electoral Act is clear on the jurisdiction vested in the Federal High Court and did not leave Section 87(9) (supra) in any doubt in the event of non-compliance. The power to intervene and determine in the event of any infraction is fully within the jurisdiction of the said Court.

This Court has set the position of the law correctly in the case of UWAZURIKE VS NWACHUKWU (2013) 3 NWLR (Pt.1342) 503 at 530, paras. C-D where this Court per Muhammad, JSC said:

“The import of the very clear and unambiguous words which make

up Section 87(9) of the Electoral Act is that once the complaint of an aspirant is that in the selection or nomination of a candidate for election, a political party has breached any provisions of the Electoral Act and/or the party’s guidelines, the aspirant is entitled to seek redress at either Federal High Court or a High Court notwithstanding any provision in the Electoral Act and/or the political party’s guideline to the contrary.”

The position of this Court synchronizes with the provisions of Section 87(10) of the Electoral Act, which provides that:

“Notwithstanding the provisions of the 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.”

In view of the foregoing, I hold that the Lower Court was right to have upheld the finding of the trial Court in assuming jurisdiction to entertain the suit pursuant to Section 87(9) of the Electoral Act (supra). The concurrent

findings of facts by the trial Court and the Lower Court on applicability or otherwise of Section 87(4) (C)(i) and (ii) of the Electoral Act 2010 (as amended) particularly whether there was primary election in which the Plaintiff/1st Respondent and the Appellant participated to entitle the Plaintiff/1st Respondent to invoke Sections 87(4) (C)(i) and (ii) of the Electoral Act 2010 was sound. I have no basis to interfere on the findings of both the trial Court and the Court below us.

The Appellant also raised concerns as to “whether in view of the obvious conflicting affidavits of the parties, the Court should not have ordered pleadings in this case”. The Appellants contended that the learned trial Judge embarked on the investigation or interrogation of the relevant conflicting affidavits and documents without determining whether originating summons was appropriate for the determination of this suit. Counsel submitted that the trial Court made no finding of facts and cited the case of YUSUF V. CO-OP BANK LTD (1994) 7 NWLR (Pt.359) 676 at 693, paras E-F.

The Appellant submitted in closing, that by its nature, the 1st Respondent claim of being the

winner of the PDP primary election for the Federal Constituency was not devoid of hostilities and thus not suitable for hearing and determination under originating summons. On the basis of this, the Appellant urged this Court to hold that the Lower Court came to a wrong conclusion when it held that the suit was appropriate for determination by Originating summons.

In its response to this contention, the 1st Respondent submitted that the X-ray of the documents before the Court by the Appellant in the several issues raised by the Appellant in the endeavour to show that the trial Judge was wrong to assume jurisdiction, clearly show that the suit was properly commenced by way of originating summons and the claim of the Plaintiff/1st Respondent could be granted based on the documents before the Court. The 1st Respondent submitted that the trial Judge evaluated the documents and ascribed probative value and in doing same came to the conclusion that there was sufficient documentary evidence to determine the core issue raised in the originating summons.

The 1st Respondent further pointed out that the Appellant had joined issue with the 1st Respondent

notwithstanding the purported adoption of wrong procedure, having filed counter affidavit accompanied by a written address all in opposition of the originating summons. The 1st Respondent submitted that it is too late for the Appellant to complain over the alleged irregularity, citing the case of ADEBAYO & ORS. VS JOHNSON & ORS.(1969) 1 NMLR 82 and NAGOGO VS C.P.C. (2012) 14 NWLR (Pt.1321) at page 518 at 535 in para G.

As stated earlier, the above contention was integrated as part of the sole issue for determination in this appeal because the two issues formulated by the parties touch on jurisdiction. One is based on propriety of hearing and determining the originating summons pursuant to Section 87 of the Electoral Act while the other centres on the mode of commencement of the suit. The parties have already hotly contested this suit by affidavit and documentary evidence. I agree with the 1st Respondent’s contention that the Appellant had raised several issues in an attempt to show that the trial Judge was wrong to assume jurisdiction, which the trial Judge had evaluated and ascribed probative in arriving at its conclusion by affirming

jurisdiction and competence of the suit as to the mode of commencement. The Appellant cannot approbate and reprobate simultaneously. The Appellant is at liberty to exercise its right by filing a distinct and separate motion challenging the procedure for commencement of the suit by originating summons and pray the Court to order pleadings. The Appellant would appear to have waived its right to complain having joined issues by filing a counter affidavit accompanied by a written address in opposition of the originating summons. See ADEBAYO & ORS. VS. JOHNSON & ORS. (1969) 1 NMLR 82. See also NAGOGO VS C.P.C. (2013) 2 NWLR (PT.1339) 448.

It is important to also point out that it seems irrefutable that the PDP appeal Panel report as contained in Exhibit P8 supports the case of the 1st Respondent. As rightly submitted by the 1st Respondent, exhibits before the Court are documents which ex facie speak for themselves. It is settled that oral evidence cannot be allowed to add to or subtract from or alter or contradict a written document. See Section 132(a) of the EVIDENCE ACT, NNUBIA vs ATTORNEY – GENERAL, RIVERS STATE (1999) 3 NWLR (PT. 593) 82; B.O.N.

LTD vs. AKINTOYE (1999) 12 NWLR (Pt.631) 392; U.B.N PLC VS OZIGI (1994) 3 NWLR (PT.333) 385; and KOIKI VS MAGNUSSON (1999) 8 NWLR (Pt.615) 492. See also the case of AGBAKOBA VS INEC (2008) 18 NWLR (Pt.1119) 489 at 539 paras. D-H.

At this juncture, I will shed further lights on the request made by the Appellant on concurrent findings of the Court below. The Appellant had contended that “an appellate Court should ex debito justiciae interfere where there has been miscarriage of justice as where the judgment appealed is perverse or not the result of a proper exercise of judicial discretion.” The Appellant contended that in the instant case, the learned trial Court manifested its misconception of the documentary evidence in the case when it was identifying the processes on which the 1st Respondent relied in the originating Summons. On this basis, the Appellant invited this Court to interfere with the concurrent findings of fact by the two Lower Courts below us.

I acknowledge the submission of the Appellant wherein the learned Appellant Counsel urged us to disturb the concurrent findings of the two Courts down the stairs of our judicial hierarchy. The law

is trite and well established that it is open for an appellate Court to interfere with findings of a trial Court when such findings have been made on legally inadmissible evidence, or they are perverse or are indeed not based on any evidence before the Court. See the cases of SELE VS THE STATE (1993) 1 NWLR (Pt.267) P.276 at 282 and IYARO VS THE STATE (1988) 1 NWLR (Pt.69) P.256.

We are unable to do so in this case. This is because if there are concurrent findings of fact made by the High Court and Court of Appeal, the Supreme Court will not readily set them aside or substitute its own views unless there is no evidence to support the findings. SEE RE: MOGAJI (1986) 1 NWLR (Pt.19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt.85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615, per Aka’ahs, J.S.C. (P.18, paras. D-F).

There are clear, direct, credible documentary evidence to justify the decisions of the Lower Courts. Therefore, for emphasis, this Court with not, given the circumstances of this case, interfere with concurrent findings of facts made by the trial Court and the Court of Appeal. Clearly, we are convinced that the findings are not perverse

and are supported by credible documentary evidence, particularly Exhibits P7 and P8. The findings were neither reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. SEE ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt.959) 1 per Onnoghen, J.S.C (now CJN) (P.46, C-E). See also OCHIBA VS STATE, 2011 12 SC (Pt.IV) p.79. per Rhodes-Vivour, J.S.C. (pages. 51-52, paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) P.200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) P.1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98.

In view of the above analyses, the sole issue in this appeal is resolved in favour of the 1st Respondent. For emphasis, the 1st Respondent was squarely within the confines of the law to have commenced this suit by way of originating summons pursuant to Section 87 of the Electoral Act (supra). The trial Court was right in law and logic to have assumed jurisdiction to hear and determine the suit. The Court below was right to have upheld the decision of the trial Court. The

Appellant’s request for us to interfere in concurrent findings of facts by the two Courts below is misplaced, untenable and is hereby refused.

Having resolved the main issue in this appeal against the Appellant and in favour of the Respondent, it necessarily means this appeal fails being unmeritorious. Therefore, I rule and declare this appeal lacks merit and is accordingly dismissed. I affirm the Judgment of the Lower Court.

That will be the Judgment of this Court. I make no order as to cost.

SC.534/2015

Engr. Newton Ikechukwu Ugwuegede V. Hon. Dr. Patrick Aziokoja Asadu & Ors (2018) LLJR-SC

Engr. Newton Ikechukwu Ugwuegede V. Hon. Dr. Patrick Aziokoja Asadu & Ors (2018)

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