Halima Hassan Tukur V. Garba Umar Uba & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Sokoto Division, holden at Sokoto, delivered on 8th September, 2011 in appeal No.CA/S/34/2011 wherein it set aside the September, 2011 in appeal No. CA/S/34/2011 wherein it set aside the judgment of the trial Federal High Court, Sokoto, which was delivered on 30/3/2011 in suit No.FHC/S/CS/8/2011.

The Appellant herein had earlier commenced an action before the Abuja Federal High Court by an Originating Summons filed on 7/02/2011 against the 1st and 2nd Respondents then described as Defendants. The suit was later transferred to Sokoto Federal High Court on 7/3/2011. The Originating Summons was later amended to join the 3rd Defendant now 1st Respondent to the suit. At the end of the day, judgment was entered in favour of the Appellant as per her amended Originating Summons filed on (See; pages 724-736 and pages 1068-1081 respectively of the records).

Aggrieved by the decision of the trial Federal High Court, the 1st & 2nd Defendants appealed to the court below and the judgment of the trial Federal High Court was set aside on 8/9/2011 in their favour.

Dissatisfied with the judgment of the court below led to the instant appeal to this court by the 1st Respondent. The appellant filed two Notices of Appeal. The first Notice of Appeal was filed on 8/9/2011 while the 2nd Notice of Appeal was filed on 24/11/2011. (See pages 424-426 and 1-13 in the main volume and the Supplementary record respectively).

Parties, in compliance with the Rules of this court filed and exchanged their briefs of argument.

Upon being served with the Record of appeal, the appellant filed her brief of argument on 13/12/2011. The 1st and 2nd Respondents filed their joint Respondents’ brief of argument on 16/01/2012 and same was deemed properly filed and served on 19/3/2012, while the 3rd Respondent also filed its brief of argument on 23/12/2011 and same was deemed properly filed and served on 19/3/2012. The Appellant in response to the 1st and 2nd Respondents’ brief of argument filed a Reply brief of argument on 7/2/2012 and the said reply was deemed as properly filed and served on 19/3/2012.

On the 16th of April, 2012 when the appeal came up for hearing, Mr. Maikyau, learned senior counsel for the 1st and 2nd Respondents referred to the Joint Brief of argument filed on behalf of the 1st and 2nd Respondents on 16/01/2012. He referred to their Notice of Preliminary Objection separately filed on 16/01/2012. He sought leave of court to move the said notice save from grounds c, d, e, g and h. In other words, he then relied on only grounds a, b, and f. He referred to the Notice of Preliminary Objection in the brief of argument on pages 30-39. The said grounds now relied upon for the Preliminary objection are as follows:

(a) The Appellant filed two Notices of Appeal on 8th of September, 2011 and 24th November, 2011 respectively

(b) The grounds in the two Notices of Appeal were argued by the Appellant in the Appellant’s brief of Argument dated 12th of December, 2011 and filed on the 13th December, 2011.

(c) The maintaining of the two Notices of Appeal by the Appellant constitutes an abuse of the process of this court.

The arguments in support of the grounds of objection are contained in the brief of argument as follows:

Learned Senior Counsel to the Respondents referred to the Notice of Appeal dated and filed on the 24th of November, 2011 and submitted that it is an abuse of the process of this court. He conceded that the appellant has the right to file numerous Notices of Appeal subject to compliance with the requirements of law as to their competence. He submitted that the maintenance of the second Notice of Appeal in the light of the Notice of Appeal filed on the 8th of September 2011 constitutes an abuse of the process of this court. Learned Senior Counsel contended that the Notice of Appeal dated 8/9/2011 has the same parties, deals with the same judgment as the Notice of Appeal filed on 24/11/2011. He submitted that both Notices of Appeal have been argued in the Appellant’s brief of argument filed on the 13th December, 2011 and this constitutes an abuse of the process of this court. He relied on Dingyadi & Anor Vs INEC (2010) 4-7 SC (pt.1) 32.

Learned Senior Counsel urged the court to dismiss the appeal with costs

In response to the 1st and 2nd Respondents’ joint brief of argument, the appellant filed a Reply brief of argument on 07/02/2012. In the reply brief, the appellant referred to the Notice of Preliminary Objection of the 1st and 2nd respondents filed pursuant to Order 2 Rule 9 of the Rules of this court.

Learned Senior Counsel to the Appellant, Ameh, Esq. referred to a Motion on Notice he had filed for leave to appeal on grounds other than grounds of law alone and for leave to amend the Appellant’s brief of argument. He submitted that the prayers in the said application shall take care of the Respondents’ contentions in their preliminary objection, save that the maintenance of two Notices of Appeal constitutes abuse of court process. He submitted that once the court granted the appellant’s application the other objections of the Respondents would have been overtaken by events. He urged the court to so hold.

With respect to the objection on the maintenance of two Notices of Appeal, having constituted an abuse of court process, learned senior counsel submitted that the contention was misconceived, to say the least. He referred to the same Dingvadi & Anor Vs INEC (2010) 18 NWLR (Pt.1224) 1 and contended that in that case this court only treated as constituting an abuse of court process, a situation where the Appellant filed and maintained two separates Notices of Appeal in two different divisions of the court of Appeal, namely, Abuja and Sokoto on the same matter, such that two conflicting decisions could emerge if both appeals were maintained. He submitted that that situation in the instant case is different in that the two Notices of Appeal were filed in the same court and the appeal is being considered as one. He said the case of Dingyadi & Anor v. INEC (Supra) does not apply to the instant appeal.

Learned Senior Counsel contended that this court has in a plethora of cases decided that an appellant is at liberty to file two or more notices of appeal so long as they are filed within time and is at liberty to choose whether to use all or some of the notices or stick to one and withdraw or abandon the rest, but that the filing and maintenance of more than one notices of appeal in the same matter before the same court does not render any of the Notices incompetent. He cited; Registered Trustees of Amorc Vs Awoniyi (1994) 7 NWLR (pt.355) 154 at 191; Tukur vs Government of Gongola State (1983) 1 NWLR (Pt.68) 39 at 49; First Bank of Nigeria Plc. vs TSA Industries Ltd (2010) 15 NWLR ( Pt.1210) 247 at 290.

Learned Senior Counsel submitted that both Notices of Appeal which the appellant filed in this appeal on 8/9/2011 and 24/11/2011 respectively are in exercise of one right of appeal in the matter and are therefore competent and the appellant is at liberty to either use both of them or abandon one and use the other. He was emphatic that the appellant has elected to use both Notices of Appeal as she is entitled to do. He urged the court to so hold.

However, learned Senior Counsel submitted that, assuming without conceding that the 1st and 2nd Respondents are right their contention on the Notices of Appeal, or that this court finds merit in their argument, in this regard, the Appellant applied to abandon the 1st Notice of Appeal filed on 8th September, 2011, and to amend the Appellant’s brief of argument to remove or sever any reference to grounds of the said Notice of appeal under issue 1 and 4 of the Appellant’s brief of argument. He relied on Shanu v. Afribank (2000) 8 NWLR (Pt.684) 392.

As earlier stated, the 1st and 2nd Respondents formally filed a Notice of Preliminary Objection pursuant to Order 2 Rule 9 of the Rules of this Court, (as amended). The said preliminary objection is also raised and argued in their brief of argument. However, when the appeal came up for hearing, and the court allowed the respondents to argue their appeal, learned Senior Counsel sought leave to abandon grounds c, d, e, g and h of the objection having been overtaken by event. In the circumstance those grounds and the arguments proferred on them in the Respondents’ brief of argument are hereby struck out.

There is no doubt and this has been clearly admitted by the Appellant that two Notices of Appeal were filed by the appellant against the same judgment of the court below delivered on 8th September, 2011. The said Notices of Appeal appellant are:

(a) Notice of Appeal filed on 8th September, 2011 and

(b) Notice of Appeal filed on 24th November, 2011.

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 all 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. See Bilante International Ltd v. Nigeria Deposit Insurance Corporation (2011) 8 SCM 40 at 540; Iteshi Onwe v. The State (1975) 9 – 11 SC 41.

An appellant is equally entitled to amend an original Notice of Appeal as at when necessary. In other words, an Appellant can amend his notice of appeal to incorporate the grounds in the other Notice(s).

But rather unfortunately, the Appellant in this case not only filed two Notices of Appeal but attempted to prosecute the appeal based on the two Notices of Appeal. Indeed, the appeal had been argued on the two Notices of Appeal without making the required choice of the one to use out of the two Notices.

From the Appellant’s brief of argument, on pages 8-9, the issues for determination are stated as follows:

“Respectfully, from the two (2) Notices of Appeal filed by the Appellant, it is humbly submitted that the following issues arise for determination.

1. Whether the Court below was right in holding that the jurisdiction vested by and the redress provided under Section 87(9) of the Electoral Act, 2010 (as amended) are limited to award of damages and did not include jurisdiction to order the reinstatement of the Appellant as candidate of the 2nd Respondent as candidate of the 2nd Respondent as ordered by the trial court. (Grounds 2 of the Appellant’s first Notice of Appeal and Grounds 1, 2 and 3 of the Second Notice of Appeal).
2. Whether the court below was right in disturbing the finding of the trial court to the effect that the 1st Respondent was not cleared to contest the 2nd Respondent’s primary election held on Thursday 6th January, 2011 for the purpose of picking the 2nd Respondent’s candidate for Yauri/Shanga/Ngaski Federal Constituency in the April, 2011, general Election (Grounds 4 and 5 of the Appellant’s second Notice of Appeal).
3. Whether the court below appreciated the basis for the trial court’s application of principle of estoppels and this notwithstanding, whether the 1st Respondent’s screening, Electoral and Electoral Appeal Panels disqualifying him from contesting the 2nd Respondent’s primaries could turn around to complain or extricate itself from the effect of the said decision. (Ground 6 of the Appellant’s second Notice of Appeal).

4.Whether in view of the facts established by affidavit and documentary evidence, in this case, the court below was correct in holding that the Appellant did not prove that the 2nd Respondent violated its Electoral Guidelines 2010 by nominating the 1st Respondent as its candidate for the election into membership of the House of Representatives for the Yauri/Shanga/Ngaski Federal Constituency. (Ground 1 of the Appellant’s first Notice of Appeal and Ground 7 of the Second Notice of Appeal).

(Underlining supplied for emphasis).

As can be clearly seen in the Issues formulated for determination of this appeal, the TWO NOTICES OF APPEAL PRODUCED THE SAID FOUR (4) Issues. In other words, and in effect, the said four Issues are argued in the appellant’s brief of argument.

On the appellate jurisdiction of this court, Order 8 rule 2 of the Supreme Court Rules, 2000 (as amended) provides as follows:-

“Order 8 (2) (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part only of the decisions of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.”

From the above rule of this court, it is clear that an appeal to this court is required to be argued on a Notice of Appeal but not more than one. As stated earlier, there is no doubt that an appellant may file more than a Notice of Appeal within the time prescribed by the Rules so to do but the argument on the appeal shall be hinged on only one Notice of Appeal which may incorporate the grounds in other Notices by way of amendment by or with leave of the court at any time. (See; Rule 4 of Order 8 {supra).

I had referred and quoted above, the Issues distilled from the two Notices and Grounds of Appeal in the appeal to show that the said issues were distilled from the two Notices of appeal and they are so argued in the appellant’s brief of argument.

As I stated earlier, it is not the filing of two Notices of Appeal that is wrong and improper, that is allowed and acceptable. What appears not neat and tidy enough is the way the Appellant in this appeal argued the appeal upon the two Notices of Appeal without an amendment incorporating the grounds of appeal in one.

However, the learned senior counsel to the Appellant has sought to withdraw or abandon the first Notice of Appeal filed earlier in this appeal on 8th September, 2011 and the issues formulated therefrom. This can surely be done and it is permissible. In Tukur Vs Government of Gongola State (1988) 1 NSCC 30 at 36 this court had held as follows:

“An appellant can validly withdraw one of two Notices of Appeal and then proceed to argue his appeal based on the other remainxing Notice of Appeal”.

In the same case, this court, per Obaseki, JSC on page 41 opined as follows:

“…that the filing of more than one notice does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. Notices filed outside the period unless time is extended are incompetent. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal.”

See also; Akeredolu & Ors Vs. Akinremi & Ors (1986) 2 NWLR 710, Harriman Vs Harriman (1987) 3 NWLR 244 and Iteshi Onwe Vs The State (1975) 9-10 SC 41.

Earlier in the Tukur’s case (supra) this court had opined as follows:

“It is more correct to say that the Rules of the Court of Appeal did not expressly provide for the filing of more than one notice. The Rules were silent on the Issue and it is therefore my opinion that every notice of appeal filed within time is valid. If more than one notices are filed within time, the others may be superfluous but not invalid. All the notices combined have been in exercise of a right of appeal. They may have stated different grounds which if permissible in law, gives validity and competency to the notice. Where several notices of appeal have been validly filed, I cannot see anything preventing an application for leave to consolidate them into one or for withdrawal of all except one.” (Underlining supplied).

In the circumstance, having sought to withdraw the first notice of appeal and be left with the other notice of appeal which was equally filed within time and is competent, the preliminary objection is misconceived and unsustainable. Accordingly, it is overruled. The appeal is to be heard on merit.

The first notice of appeal filed on 8/9/2011 having been withdrawn, the issues distilled therefrom must go with it. Therefore, issues 1 and 4 are struck out with the Notice of appeal filed on 8/9/2011, from which the said issues were distilled. The argument of this appeal by the Appellant was then based on the remaining two Issues 2 and 3 distilled from the second Notice of appeal. The said Issues for clarity are:

Issues for Determination

“1. Whether the court below was right in disturbing the finding of the trial court to the effect that the 1st Respondent was not cleared to contest the 2nd Respondent’s primary election held on Thursday 6th January, 2011 for the purpose of picking the 2nd Respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April, 2011 general election. (Grounds 4 and 5 of the Appellant’s second Notice of Appeal).

2. Whether the court below appreciated the basis for the trial court’s application of principle of estoppels and this notwithstanding, whether the 1st Respondent who failed to challenge the decisions of the 2nd Respondent’s screening Electoral and Electoral Appeal Panels disqualifying him from contesting the 2nd Respondent’s primaries could turn around to complain or extricate itself from the effect of the said decision (Ground 6 of the Appellant’s second Notice of Appeal),

It is noteworthy that the 1st and 2nd Respondents in their joint brief of argument did not formulate separate issues from the Appellant’s Notices of appeal. They sought to rely and base their argument of the appeal on the issues as formulated by the Appellant from the two Notices of appeal. But since the Appellant had withdrawn and/or sought to abandon the first Notice of Appeal, at the same time, the arguments of the Respondents on the issues formulated from the grounds contained in the said notice of appeal shall be discountenanced.

On issue No.1 above, the appellant referred to the sole issue formulated by the trial Judge in his judgment which was considered by him germane for determination and upon which the appellant’s suit was determined as follows:-

“Whether the 1st Respondent was duly cleared to contest the primary Elections”. The Appellant referred to the trial court’s findings on page 1077 and submitted that the finding was based on the evidence presented by the parties and properly evaluated by the trial court. The appellant referred to the conclusion of the court below on pages 415-418 of volume 1 of the record on the alleged improper evaluation of the Exhibits produced by the 1st Respondent and submitted that the court was wrong. It was contended that in view of the importance of Article 27 (i)-(v) of the 2nd Respondent’s Electoral Guidelines for Primary Elections, 2010 in matters of primary election, the trial court considered both Exhibits H, I and K which were attached to the appellant’s Amended Originating Summons and those Exhibits presented by the 1st and 2nd Respondents but preferred Exhibits H, I and K based on cogency and credibility. It was further contended that by Article 27 (iv) of the 2nd Respondent’s Electoral Guidelines, only aspirants cleared by the State Screening Panel or by the Appeal Panel shall be allowed to participate in the primary election. Learned Senior Counsel submitted that Exhibits H, I and K which are the reports of the Screening Committee /Panels of the 2nd Respondent, clearly showed that the 1st Respondent was never cleared to contest the primaries.

It was further submitted that there was nothing on record to show that those Exhibits, GU3, GU4, GU5, GU6, GU14 and GU15 were ever submitted by the 1st Respondent during the screening or to the screening panel as the reports of the three Panels in Exhibits H, I and K denied such submission, in particular, Exhibit K on pages 865-866 of Volume 1 of the record.

Learned Senior Counsel referred to Exhibit GU1, which was said to have been presented by 1st Respondent to the 2nd Respondent’s Electoral Panel to show that he was cleared and submitted that same was merely a photocopy of provisional clearance certificate which the panel considered but turned down.

He referred to Exhibit I – the Electoral Panel Report on pages 855-862 of Volume 1 of the record and submitted that it shows that after the screening exercise, the screening Panel forwarded its report and List of cleared aspirants to the 2nd Respondent’s National Secretariat which in turn made it available to the Electoral Committee /Panel for the conduct of the primaries. The said list, he said, also confirmed the 1st Respondent’s non clearance and disqualification.

The appellant referred to Exhibit GU8 as one of the documents produced by the 1st Respondent at the trial court and said not to have been considered. It was submitted that in view of the mandatory provisions of Paragraph 27 (v) of the 2nd Respondent’s Electoral Guidelines, so long as the 1st Respondent was not cleared by any of the Panels to contest the primaries, the fact that he polled the highest votes pales into the realm of insignificance since he was ab initio not supposed to be voted for. It was further submitted that the Appellant led credible evidence to show that the 1st Respondent was never cleared to contest the primary election in question and that the trial court was right in relying on the evidence led by the appellant.

The appellant referred to the contention of the 1st & 2nd Respondents that they had no knowledge of and did not receive Exhibits H, I and K and contended that from the content of the said Exhibits it is clear that the National Secretariat of the 2nd Respondent was in receipt of the Reports and indeed worked with them at various stages of the primaries and even after the conduct of the primaries. It was further contended that following the emergence of the appellant as candidate and her endorsement by the three Committees/Panels, the 2nd Respondent invited her to its National Headquarters and she was given INEC nomination Form EC4 B 8 (iv), that is Exhibit L and INEC Affidavit Form C. F001 Exhibit M to be completed as the duly elected candidate for her Federal Constituency. She completed the forms and submitted for onward transmission of her name to the 3rd Respondent. Learned Senior Counsel submitted that even for the above done, the 2nd Respondent cannot deny knowledge of the Reports of the Committees/Panels.

He further submitted that the mere fact of denial of knowledge and receipt of Exhibits H, I and K by the 1st and 2nd Respondents respectively did not render the contents of the Exhibits less credible. He urged the court to resolve the issue in favour of the appellant.

On this issue No.1 above, the 1st and 2nd Respondents referred to the argument/submission proferred by the 1st and 2nd Respondents as Appellants before the court below as can be found on pages 135-147 of Vol. 2 of the record and that inspite of the host of documents and quality of the affidavit evidence from the 1st and 2nd Respondents, the trial court only considered Exhibits H, I and K which accompanied the affidavit filed by the appellant as Plaintiff before the trial court. It was contended that this was inspite of the fact that the 1st and 2nd Respondents had said that the said documents were not their documents and that the 1st Respondent was cleared to contest the primaries. They submitted that it was incorrect for the appellant to claim that the trial court properly evaluated the affidavit and documentary evidence presented by the parties.

The 1st and 2nd Respondents referred extensively to the judgment of the court below and submitted that the court was right when it held that the trial court failed to evaluate the evidence placed before it by the 1st and 2nd Respondents. It was contended that the trial court did not consider the depositions by the 2nd Respondent on its counter affidavit on Exhibits H, I and K which the trial court so heavily relied upon.

They referred to Article 27 (i)-(v) and contended that whereas Article 27 (i) and (ii) provide for the existence of a screening committee and screening Appeal Panel respectively, for each State of the Federation and the Federal Capital Territory, Article 27 (v) provides that only aspirants cleared by the Screening Committee or whose appeal is upheld by the Appeal Committee shall be allowed to participate in the primary election. It was further contended that the 2nd Respondent in its counter affidavit before the trial court deposed to the fact that it did not receive any report from these Committees as alleged by the Appellant. They submitted that the existence of the committees/Panels is one thing and the existence of the report is yet another and there was no evidence before the trial court better than the counter affidavit of the 2nd Respondent.

The Respondents contended further that the position of the 2nd Respondent on the candidature of the 1st Respondent was consistent with the fact that Exhibit GU1 – (Clearance Certificate) issued to the 1st Respondent was issued and signed by authorized officers of the 2nd Respondent. Subsequently, the 1st Respondent took part in the conduct of the primaries and emerged the winner with the highest number of votes of 222 with the Appellant on the 4th position with 93 votes. And in compliance with the provisions of Article 27 (v) of the 2nd Respondent’s Guidelines for the conduct of primaries, the name of 1st Respondent as the winner of the primaries was submitted to the 3rd Respondent (INEC) and the name was published in accordance with the provisions of section 31(5) of the Electoral Act, 2010 (as amended).

The Respondents submitted that the lower court was right when it held that the findings by the tribunal without consideration of unchallenged documentary evidence exhibited before the tribunal was perverse. They urged the court to so hold. They submitted further that Exhibits H, I and K are not reliable and ought not to have been relied upon by the trial court. The court is urged to hold that the trial court did not evaluate the evidence placed before it by the 1st and 2nd Respondents, otherwise it ought not to have relied on Exhibits H, I and K to find that the 1st Respondent was disqualified from the primaries conducted by the 2nd Respondent. They urged the court to resolve the issue in favour of the 1st and 2nd Respondents.

The 3rd Respondent in its brief of argument referred to the four (4) Issues formulated by the Appellant in her brief of argument. The said brief of argument was settled by Ahmed Raji Esq. who claimed to be mindful of the admonition of this court to the effect that the 3rd Respondent as an Umpire in election matters should remain impartial. Reference was made to A.G. Federation Vs. Abubakar (2007) 10 NWLR (Pt.1041) 1 per Onnoghen, and Aderemi, JJSC at pages 106 and 183-184 respectively.

Reference was also made to Uzodinma Vs. Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30 per Rhodes Vivour and Onnoghen, JJSC at 55 and 78 respectively.

Learned Counsel contended that the issue in dispute in that latter case had to do with who, between the Appellant and the 1st Respondent was the PDP candidate for Imo West Senatorial District for 2011 general election. It is similar to the dispute in the instant appeal. By the facts and circumstances in this appeal, the trial lower court delivered its judgment on the 30th March, 2011 wherein it found for the appellant and granted its prayers as contained on the face of the Originating Summons. Consequent to the judgment, the Appellant’s name was forwarded to the 3rd Respondent as candidate of the 2nd Respondent, who subsequently contested the 9th April, 2011 National Assembly general Election and won.

Learned counsel submitted that it is not within the province of the 3rd Respondent to determine who the candidate of a political party should be. Rather, the mandate of the 3rd Respondent is to comply with the relevant provisions of the Electoral Act on the submission to INEC of names of candidates by any political party.

The 3rd Respondent in its brief of argument however formulated a sole issue for determination of the appeal from the Notice of Appeal filed by the Appellant on 8th September, 2011 as follows:

“Whether the court below was right in holding that the jurisdiction vested by and the redress provided under section 87 (9) of the Electoral Act, 2010 (as amended) are limited to award of damages and did not include jurisdiction to order the reinstatement of the Appellant as Candidate of the 2nd Respondent as ordered by the trial court.” (Grounds 1, 2 and 3 of the second Notice of Appeal.

In proffering argument in this appeal, the 3rd Respondent agreed with the Appellant on the Issue formulated with regards to the purport of Section 87 (9) of the Electoral Act, 2010 (as amended) which gives an aggrieved person the right of audience in court where he feels that injustice will be metted on him by the failure of its political party in complying with its Constitution and Guidelines.

Learned counsel to the 3rd Respondent referred to Section 87 (9) (supra) and contended that the question of the candidate a political party will sponsor is more in the nature of a political question which the courts are reluctant to deliberate upon and answer. It was submitted that the judiciary has been relieved of the task of answering the question by the Electoral Act when it gave the power to the leader of the Political Party to answer the question.

It was further contended that, the 3rd Respondent being an Umpire is a statutory body established pursuant to Section 153 (f) of the Constitution with powers under Section 14 of the Third Schedule and functions under the provisions of the Electoral, Act 2010 (as amended). The 3rd Respondent therefore has no preference for any of the parties in this Appeal but only carries out its activities as enshrined in the relevant statutes. It is submitted that where a political party forwards the name of a person to the 3rd Respondent (INEC) as its candidate, it is not the province of the 3rd Respondent to question the candidature; particularly when the procedure for the submission of names as prescribed by the Electoral Act has been complied with. In other words, the submission of a candidate’s name to the 3rd Respondent by a Political Party is a prima facie evidence that the candidate is a member of the Party and has been duly screened by the Party as provided for in its Constitution and Electoral Guidelines.

Learned counsel to the 3rd Respondent submitted that the jurisdiction of a trial court to entertain intra-party affairs is strictly delimited to Section 87 (9) of the Electoral Act, 2010 (as amended) in the event that the political party fails to comply with its own Constitution and Guidelines. He placed reliance on Uzodinma Vs Izunaso (No.2) (supra) at pages 59-60, as applicable to the instant appeal, the 3rd Respondent therefore disagreed with the decision of the court below when it relied on the decision of this court in Dalhatu Vs. Turaki (2003) 15 NWLR (Pt.843) 310 at 349-350 and held as it did on pages 419-420 of the record of appeal. He submitted further that damages is not a remedy provided in Section 87 of the Electoral Act, 2010 (as amended). And it is instructive to note that there was no equivalent of Section 87 in the provisions of the Electoral Act under which Dalhatu Vs. Turaki (supra) was decided. He once again relied on Uzodinma Vs. Izunaso (No.2) (supra) and submitted that this court did not award damages.

The 3rd Respondent finally urged the court to allow the appeal and hold that the court has power to declare a particular candidate the winner of a primary election based on the evidence before the court and in line with the new provisions of the Electoral Act.

As stated earlier, the appellant herein was the plaintiff at the Federal High Court (herein referred to as the trial court), wherein after the 3rd Defendant/Respondent was joined, her Originating Summons was duly amended. In the said amended originating summons the following questions were raised for determination:

“1. Whether a person disqualified or declared ineligible by his political party to contest an election can participate in party primaries organized or conducted by the same political party.

2. Whether by the clear provisions of Section 87 of the Electoral Act, 2010, it is not mandatory for the 1st Defendant to nominate its House of Representatives candidate/Flag bearer for Yauri/Shangal Ngaski Federal Constituency of Kebbi State for the April 2011 National Assembly on the basis of the result of the said Primary Election.
3. Whether by the provisions of Section 87 (1) (c) (iv) of the Electoral Act, 2010, it is not mandatory for the 1st Respondent to nominate the Plaintiff as its House of Representatives candidate/flag bearer for Yauri/Shanga/Ngaski Federal Constituency of Kebbi State, in the April 9, 2011, General Election, the Plaintiff having won the direct primary election held on January 6, 2011.
4. Whether having regard to the express provisions of Section 87 of the Electoral Act, 2010, the 1st Defendant can submit the name (sic) non contestant in the primary election as its candidate/flag bearer for Yauri/Shanga/Ngaski Federal Constituency of Kebbi State, for the said April 2011 General/National Assem bly Election.
5. Having regard to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010, whether the 1st Defendant having screened and disqualified an aspirant from participating in the primaries can turn around to submit the name of the disqualified aspirant/non contestant as its candidate for Yauri/Shanga/Ngaski Federal Constituency of Kebbi State for the April 9, 2011 General Election/National Assembly Election”

See pages 724-725 of the Record.

Based on the above questions, the Appellant sought from the trial court the following reliefs:

“(a) A declaration that it is mandatory for the 1st Defendant to nominate the winner of the said Primary Election as its flag bearer Candidate for the purpose of participating and contesting in the National Assembly election Kebbi State slated for 2nd April, 2011.

(c) A declaration that the plaintiff having scored the highest number of votes in the primary Election of the 1st Defendant, is the rightful and lawful candidate of the 1st Defendant for the April 2, 2011 National Assembly Election in respect of Yauri/Shanga/Ngaski Federal Constituency of Kebbi State.

(d)A declaration that the submission of the name of disqualified aspirant/non contestant to the 2nd Defendant by the 1st Defendant as its candidate for the said election of 2nd April, 2011 is illegal, unlawful, null and void and of no effect whatsoever.

(e)An order of injunction restraining the 2nd Defendant either by itself, officers, agents, privies, staff or through any person(s) howsoever from recognizing, accepting or dealing with any other name submitted to it on any way whatsoever as the 1st Defendant’s candidate in the April 2, 2011 National Assembly Election save tire name of the plaintiff.

(f) An order directing the 1st defendant to submit the name of the plaintiff as the validly nominated candidate for Yauri/Shanga/Ngaski Federal Constituency of Kebbi State at the April 2, 2011 General Election/National Assembly Election.

(g) An order directing the defendants particularly the 2nd defendant to recognize, accept and deal with the plaintiff as the flag bearer of the 1st Defendant for the April 2, 2011 election having emerged the winner of the 1st Defendant’s primary election.”

In support of the Summons was an affidavit to which various documents were annexed and marked Exhibits A-M respectively. To oppose the summons, the 3rd Defendant (herein referred to as 1st Respondent) filed a counter affidavit and attached various documents marked as Exhibits GU1- GU14 respectively.

The Appellant filed a further affidavit to her Originating Summons and the 1st Respondent duly responded. Parties filed written addresses.

In its judgment, the trial court came to the following conclusions:

“Based on the above analysis, I find as a fact based on the affidavit evidence before the court and particularly the unchallenged decision of the screening Committee which excluded the 3rd Defendant from participating in the Primary Election for the Yauri/Shanga/Ngaski Federal Constituency of Kebbi State, the 3rd Defendant must be deemed in the first place not to be a proper aspirant in the said primary Election of the 1st Respondent for the Yauri/Shanga/Ngaski Federal Constituency Election.

The Plaintiff’s action therefore succeeds. All the questions for determination in the Originating Summons are resolved in favour of the plaintiff. All the declaratory and injunctive orders are granted in favour of the plaintiff.”

The instant 1st and 2nd Respondents appealed to the court below against the decision of the trial Federal High Court upon nine (9) Grounds of Appeal contained in their Notice of Appeal dated 29/4/2011 but filed on 05/05/2011. They sought the following relief from the court below.

“An order of this Honourable court setting aside the judgment of the Federal High court delivered on the 30th of March, 2011 and in its stead, an Order dismissing all the declaratory and injunctive reliefs claimed by the 1st Respondent in the Amended Originating Summons.”

It is note-worthy that the court below after considering the issues formulated and agreed for determination by the court resolved the issue in favour of the appellants before it. The court then came to the conclusion, inter alia, as follows:

“In the circumstance, it is difficult to see why these Exhibits and others were not given any consideration by the learned trial Judge. This has led to a perverse finding by the trial court which has occasioned a miscarriage of justice

…………………………………….

Finally, I hold that the only remedy available to an aspirant, who complains that his party has not complied with the guidelines set by it in the process of its nomination or choice of candidate for an election is in damages and certainly not in the court imposing a candidate on the party. This is in line with the authority of the Supreme Court in Dalhatu Vs Turaki (2003) 15 NWLR (Pt.843) 310 at 349-350, per Edozie, JSC……….

That is the position of the law. Section 87 (9) provides for remedy and remedy is an action for damages.

This appeal succeeds and it is accordingly hereby allowed. The decision of the Federal High Court, Sokoto Division in Suit No.FHC/S/CS/8/2011 delivered on the 30th day of March 2011 is hereby set aside.

The effect is that the action of the 1st Respondent Hon. Halima Hassan Tukur, before the Federal High Court failed as she has failed to show how the 2nd Appellant violated its guidelines. A Plaintiff for declaration succeeds on the strength of his evidence and not on the admissions or weaknesses of the case of the Defendant.

1st Respondent’s action before the lower court is hereby dismissed; parties shall bear their own costs.”

There is no doubt that the Issue No. 1 above being considered now on whether the court below was right in disturbing the finding of the trial court to the effect that the 1st Respondent was not cleared to contest the 2nd Respondent’s primary election held on Thursday 6th January, 2011 for the purpose of picking the 2nd Respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April, 2011 general election bothers on the evaluation of the affidavit and documentary evidence adduced by both parties before the trial Federal High Court.

One of the main issues formulated before the court below for its determination and which was the bed rock of the appeal was – “whether or not the failure by the learned judge to consider the defence of the Appellants and to properly evaluate the evidence placed by the parties before the court granting the declaratory and injunctive relief claimed by the 1st Respondent the Originating Summons did not constitute a breach of the Appellants’ right to fair hearing as to render the judgment nullity.”

The 1st and 2nd Respondents had contended that the trial court failed to consider and properly evaluate the affidavit and documentary evidence they adduced before it in arriving at its decision as it did. They referred to paragraph 5(a)-(f) of their counter affidavit. The Chairman of the State’s Screening Committee of the 2nd Respondent (PDP) gave the information deposed to in the said Counter affidavit. The depositions goes thus:

“That I was informed by Dr. Ojukwu, the Chairman of the State Screening Committee for Kebbi of the following facts at the 1st Defendant’s National Headquarters on the said 7th of March, 2011 at about 3.30p.m. which facts I verily believe to be true that :

(a)The screening Committee received a petition from the plaintiff informing the Committee that some aspirants had not resigned their appointments 7 days to the primary election in contravention of Section 24(1) of the 1st Defendant’s guidelines. A copy of the said petition is attached herewith and marked as Exhibit PDP 2.

(b) That the Screening exercise on the 30th December, 2010 wherein the plaintiff and Ado Sani were cleared to contest the primaries for the Yauri/Shanga/Ngaski Federal Constituency.

(c) That the other aspirants who could not produce evidence of resignation from public service and Code of Conduct clearance were not cleared by the Committee but the aspirants insisted that they had these documents, hence the committee informed them to produce same before the committee wind up their assignment if really they had the said documents.

(d)That as facts, Garba Uba did produce evidence of his resignation and the acknowledgment of the Kebbi State Government with respect to his resignation and also Certificate of clearance by the Code of Conduct, Kebbi State on the 31st December, 2010.

(e)That the Screening Committee accordingly issued Garba Umar Uba with a Certificate of clearance on the 31st December, 2010.

(f) That the Screening Committee lodged against the clearance of the 3rd defendants before the Screening Appeal Committee”

(See pages 945-946 of the Record of Appeal)

The 1st and 2nd Respondents had contended further that the trial court had based its judgment on only the documents attached to the Plaintiff/Appellant’s Originating Summon – Exhibits H, I and K without considering those documents attached to the Counter Affidavits of the 1st and 2nd Respondents. The Respondents had submitted that if the trial court had considered and properly evaluated the affidavit evidence proferred by them in their counter affidavit and their various documents attached therewith, the trial court’s decision would have been different.

What then is Evidence

“Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain. ‘Evidence’ is the demonstration of a fact, it signifies that which demonstrates, makes clear, ascertains the truth of the very fact or point in issue , either on the one side or on the other. In legal acceptation, the term ‘evidence’ includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. ‘Evidence’ has also been defined to mean any species of proof legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents concrete objects and the like.” See; Black’s Law Dictionary, Ninth Edition, page 635.

Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial judge who saw and heard the witnesses testified. The trial judge is therefore in a position to access the credibility and watch the demeanour of the witnesses. See; Bartholomew Onwubuariri & Ors Vs Isaac Igboasoiyi & Ors (2011) 1 SCM 100 at 119; Michael Eyo Vs Emeka Collins-Onuoha & Anor (2011) 2 SCM 178 at 105; Guardian Newspapers Ltd & Anor Vs. Rev. Pastor Ajeh (2011) 5 SCM 111 at 124.

However, when the evaluation of evidence by a particular trial judge is in issue or being challenged, the guiding principles are as follows:

(i) whether the evidence is admissible

(ii) whether the evidence is relevant

(iii) whether the evidence is credible

(iv) whether the evidence is conclusive

(v) Whether the evidence is probable than that given by the other Party.

See; Mogaji Vs. Odofin (1978) 4 SC 91.

Therefore, it is the primary responsibility of the trial court to fully consider in totality the evidence of both parties placed before the court. In doing this, the trial judge shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion.

But when the trial court saddled with the responsibility of evaluating evidence fails so to do, or to do so properly, then an appellate court is entitled to intervene and re-evaluate such evidence. Otherwise, the appellate court has no business interfering with the finding of the trial court on such evidence. See; Agbi & Anor Vs Osbeh & Ors (2006) 7 SCM 1; (2006) 11 NWLR (pt.990) 65, Fabenro Vs Arobadi & Ors (2006) 3 SCM 99, (2006) 7 NWLR (Pt.978) 174 Bashaya Vs. State (1998) 5 NWLR (Pt.550) 351; Ojo Kolobo Vs. Alamu (1998) 9 NWLR (Pt.565) 226. Sha Vs. Kwan (2000) 5 SC 178; Military Governor of Lagos State & Ors. Vs. Adebayo Adeyig & Ors (2012) 2 SCM 183 at 210.

In the instant case, the case was tried on affidavit and documentary evidence. There was affidavit and further affidavit in support of the Originating Summons by the appellant at the trial court. There were also counter affidavits and reply to further affidavit of the Respondents to oppose the originating summons. It is already a settled law that an affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is not challenged or controverted is deemed admitted. See: Ajomale Vs Yaduat & Anor (No.2) 5 NWLR (Pt.191) 226 at 282-283, (1991) 5 SCNJ 178, Magnusson Vs. Koiki (1993) 12 SCNJ 114; Henry Stephens Engineering Ltd Vs Yakubu (Nig) Ltd (2009) 6 SCM 90 at 99.

The court below when considering the Respondent’s appeal from the decision of the trial court had stated thus:

“I have copiously quoted the judgment of the lower court earlier in this judgment. It is apparent from the judgment that apart from Exhibit GU1, the learned trial Judge turn (sic) a blind eye to all the other Exhibits placed before him by the defence. His judgment is based solely on Exhibits H, I and K submitted by the 1st Respondent.”

The court below as well as this court are in a position, once there is failure on the part of the trial court to carry out its primary function of evaluation of documentary evidence adduced to evaluate same. See; Malam Yusuf Jimoh & Ors Vs Mallam Karimu Akande & Anor (2009) 1 SCM 34 at 58,. In Osundele & Anor Vs Shittu Agiri & Anor (2009) 1 SCM 11-12 (Pt.1) 95 at 109-1,, this court opined thus:

“As regards documentary evidence, this court is in as good a position as a trial court, in the evaluation of documentary evidence pursuant to Order 8 Rule 12(2) of its Rules. The court can examine also the said documents and exhibits in question in this case and draw necessary inferences.”

See also; FSB International Bank Ltd. Vs. Imano (Nig) Ltd. (2000) 11 NWLR (Pt.679) 62C at 637; (2000) 7 SCNJ 65, per Achike, JSC and Gonzee Nig Ltd Vs Nigerian Educational Research & Development Council & 2 Ors (2005) 8 SCM 99; (2005) 6 SCNJ (Pt.1) 25 at 35 (2005) All FWLR (Pt.274) 235 at 247-248.

After being satisfied and this is apparent on the records, that the trial court failed to consider the affidavit evidence and documents attached thereto by the Respondents, the court below, as it was entitled so to do, proceeded to consider the case presented in defence by the Respondent and came to the following conclusion:

“There is no doubt that the learned trial Judge has failed to evaluate evidence of qualification placed before him by the 1st Appellant. It will be a travesty of justice for a court to set a task for itself and then embark on something else. The task set by the learned trial Judge was that he was going to determine whether Appellant was qualified to participate in the primary election leading to the choice of candidate for Yauri/Shanga/Ngaski Federal Constituency. It will be observed from the record that the 1st Respondent had forwarded a petition to the Screening Committee, complaining that certain aspirants have not resigned their appointments. This petition was not copied to anyone, including the 1st Appellant who was to be directly affected by it. It is also apparent that the Screening Committee has acted upon the petition without informing the aspirants of the existence of the petition. Also apparent from the record is the fact that all subsequent petitions written by the 1st Respondent followed the same pattern. They were not copied to the persons directly affected. It is, therefore, a little wonder that when this action was instituted, the 1st Appellant was not made a party thereto whereas the judgment was to be against him.

It is in this light that one has to view the so-called report of the Screening Committee and that of the Electoral Appeal Committee.

Both reports were denied by the 2nd Appellant as having been submitted to it. This is contained in the affidavit of the 2nd Respondent in response to the 1st Respondent’s further affidavit. By Article 27 (i) of PDP’s Electoral Guidelines, for primary elections, 2010, it is the National Executive Committee of the party that has power to appoint Screening Committee. The National Working Committee’s role, under the guidelines, does not go beyond recommending to the National Executive Committee the persons to be appointed into various Committees. All the so-called reports were addressed to the National Working Committee. If the 2nd Appellant denied the receipt of the report of this Committee, it only stands to reason that the 1st Appellant who claimed that he was not aware of it is telling the truth, more so as it was not copied to him.

It is evident and both sides agreed that the screening was to take place for two days. The screening started on the 30th day of December, 2010 and Clearance Certificate was endorsed for the 1st Appellant on the 31st day of December, 2010. It was endorsed by both the Chairman and the Secretary of the Screening Committee.

Exhibit GU 14, letter of resignation giving approval for resignation has also not been challenged. Exhibit GU 8 at page 915 of the record is the result of the primary Election endorsed by the Electoral committee members and also endorsed by the aspirants’ agents. This exhibit has not been challenged or denied.

In this circumstance, it is difficult to see why these Exhibits and the others were not given any consideration by the learned trial Judge. This has led to a perverse finding by the trial court which has occasioned a miscarriage of justice.”

Similarly, the counter affidavit of the 2nd Respondent which was filed to oppose the Originating Summons of the Appellant before the trial Federal High Court reads, inter alia, thus:

“4. That I have read the plaintiff’s Originating Summons and the supporting affidavit and was informed by Mr. Olusole Oke, the National Legal Adviser of the 1st Defendant of the following facts at the 1st Defendant’s Secretariat on the 7th March, 2011, at about 3.00p.m. which facts I verily believe to be true as follows…

(c)That in specific response to the said paragraphs, Garba Umar Uba was cleared by the 1st Defendant’s Screening Committee to contest in the primaries and was accordingly issued with a clearance certificate to that effect on 31st December, 2010. A copy of the said clearance certificate is attached herewith and marked Exhibit PDP1.

(d)That the Clearance Certificate issued to Garba Umar Uba referred to in paragraph (c) above was duly signed by the authorized officers of the 1st Defendant, the Chairman and Secretary of the Screening Committee, Dr. Edison Ojukwu and Barr. Garba Ibrahim respectively.

(e)That the Electoral Appeal Committee’s terms of reference do not include/extend to entertaining complaints relating to the eligibility of aspirants arising from decisions of the Screening Committee. The Electoral Committee was to address complaints arising from the conduct/procedure adopted at the primary Elections.”

See pages 944-945 of the Record of Appeal).

My Lords, it was not denied by the Appellant that her complaint against the 1st Respondent in Exhibit PDP2 referred to in the above paragraph 5(a) of the Counter Affidavit was considered and resolved in favour of the 1st Respondent. Exhibit PDP2 written by the Appellant to the Chairman PDP Screening Committee for National Assembly, Kebbi State, Nigeria is at pages 949-950.

The said document reads, inter alia, thus:

“Sir, Sani Yusuf Rukubulo is currently a serving Commissioner in Kebbi State Ministry of Education and Garba Umar Uba is also serving as a Senior Assistant to His Excellency, the Executive Governor of Kebbi State. While Shehu Barau is serving as Vice Chairman Caretaker Committee in Ngaski Local Government and Sani Ado is also serving as Political Appointee in the National Headquarters of our great party, PDP.

By PDP Electoral guidelines for primary election particularly, Section 24(e): “any aspirant for primary election to the National Assembly shall, if he is a member of the Executive Committee of the Party or is a political appointee at any level must resign from such position not later than 7(seven) days before the date of primary election”

It is however note-worthy that to corroborate the depositions in paragraph 5(a)-(f) of the Counter affidavit earlier quoted, the Respondent attached Exhibits GU14 and GU15. The said Exhibits are the letter of Resignation by the 1st Respondent dated 23/12/2010 and Acknowledgment of receipt and approval of resignation by the office of the Secretary to the State Government dated 24/12/2010 respectively. (See pages 1025 and 1029 of volume 1 of the record.

In the same vein, Exhibit PDP3 is the Certified True copy of the acknowledgment of the submission of the name and particulars of the 1st Respondent forwarded to the Respondent (INEC). See page 951 of the Record of Appeal.

There is no doubt at all that the trial court did not consider and evaluate the affidavits evidence contained in the depositions in the Counter affidavit of the 1st and 2nd Respondents. Neither did the court consider the documents attached to the Counter affidavit as Exhibits. The court below was therefore perfectly right to have considered those Exhibits along with the affidavit evidence of the Respondents. The 2nd Respondent as the Political Party (PDP) which was sponsoring candidates for an election is the proper person/body, so to speak, to know which of the aspirants amongst its members it has cleared for the primaries and general election afterwards. As long as the guidelines and Constitution of the Political party are not violated or breached, the court has no power to question the choice of a party’s candidate presented for election.

In Hope Uzodinma v. Senator Osita B. Izunaso & Ors. (2011) 12 NWLR (pt.1275) 30 at 81-82, this court gave credence to the depositions in an affidavit by the Peoples Democratic party (PDP) as a political party in a similar situation on a dispute over who was the nominated candidate of the party, as follows:

“However, there is evidence that appellant was issued another certificate of clearance dated 6th January, 2011 to contest the primary election scheduled for 8th January, 2011; that the 2nd Respondent issued a press release listing out the names of aspirants cleared for the said primary election of 8th January, 2011; that in the list, so published, the name of appellant appears as one of the aspirants; that appellant consequently participated in the election and emerged and was declared the winner thereof with a total vote of 2,147 and as against the 1st respondent who came a distant 2nd with 891 votes; that the name of the appellant was consequently and in accordance with the provisions of Section 31(1) of the electoral Act, 2010, as amended, forwarded together with those of other contestants/aspirants to the various office to the 3rd Respondent as the 2nd Respondents candidate for Imo West Senatorial District in the National Assembly Election scheduled for April, 2011.

All the above facts point irresistibly to the conclusion that appellant was duly cleared by the National Working Committee to contest the said primary election but the lower courts failed to take the facts into consideration but based their decision on the narrow issue of none production of the report of the National Working Committee clearing appellant even when 2nd Respondent, the most important person qualified to say, whether or not appellant was cleared by the National Working Committee of the 2nd Respondent stated on Oath to the contrary…

I hold the view that the 2nd Respondent is the proper person to say whether the National Working Committee cleared appellant or not and having said that appellant was so cleared. I think that was sufficient to establish the fact of clearance and I so hold.”

In the instant case the 2nd Respondent (PDP) was in the best position to state whether or not the 1st Respondent was cleared and it has stated so in its counter affidavit and documentary evidence marked as Exhibits. But rather unfortunately the depositions and documentary evidence adduced by the Respondents were not considered by the trial court before concluding that the 1st Respondent was not qualified to contest the primary elections, much more the general elections into the National Assembly.

In the circumstance, the court below was therefore right in disturbing the finding of the trial court, which is perverse, to the effect that the 1st Respondent was not cleared to contest the 2nd Respondent’s primary election held on Thursday 6th January, 2011 for the purpose of picking the 2nd Respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April, 2011 general election. Accordingly, the issue is resolved against the Appellant.

The second issue is whether the court below appreciated the basis for the trial court’s application of principle of estoppels and this notwithstanding whether the 1st Respondent who failed to challenge the decision of the 2nd Respondent’s Screening Electoral and Electoral Appeal Panels disqualifying him from contesting the 2nd Respondent’s primaries could turn around to complain or extricate itself from the effect of the said decision.

It is noteworthy that the trial court relied on Exhibits H, I and K attached to the Originating Summons to have held that since the 1st Respondent did not challenge the alleged decision in these Exhibits to the effect that the 1st Respondent was not qualified to contest the primaries, he was estopped from denying or challenging the decision in Exhibit H, I and K. However, the court below, as it was entitled so to do, rightly considered the affidavit and documentary evidence on record to hold that the finding by the trial court was perverse and occasioned miscarriage of justice.

Ordinarily, and as contended before the court below, the 1st Respondent, aside from not having knowledge of the alleged reports, had no reason whatsoever to challenge the 2nd Respondent (PDP). The 1st Respondent had submitted that the 2nd Respondent at all material times to the appeal did not take any adverse decision against him. It was contended that upon a successful screening of the 1st Respondent and the issuance of Exhibit GU1 (same as PDP1) – Certificate of Clearance, the 1st Respondent participated and won the primary election with 222 votes while the Appellant came 4th with only 93 votes. See Exhibit GU8, the result of the primary election which was endorsed by all the agents of the candidates and the electoral Committee members. It was further contended that subsequently after the primary election, the name of the 1st Respondent was forwarded to the 3rd Respondent (INEC) by the 2nd Respondent (PDP). The name of the 1st Respondent was published by the 3rd Respondent in accordance with the provisions of Section 31(3) of the Electoral Act,2010 (as amended).

The Respondents contended that it is on record that the name of the 1st Respondent was published in the final list of candidates of all the political parties nominated for the contest of the election into the office of member representing the Federal Constituency in question in Kebbi State. The Respondent however, conceded that not until the 9th April, 2011 the date of the election in question when the 3rd Respondent substituted the name of the 1st Respondent with that of the Appellant on the basis of the judgment of the trial court of 30th March, 2011 which was later set aside by the court below on the 8th September 2011 and which has led to this appeal.

Generally, estoppels means “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. A bar that prevents the re-litigation of issues.”

Therefore, estoppels by silence means “estoppels that arises when a party is under a duty to speak but fails to do so.” See Black’s Law Dictionary, Ninth Edition pages 629 and 630 respectively.

From the available affidavit and documentary evidence before the trial court which the Judge failed to consider but which were rightly considered as they should by the court below to dispel the injustice done to the 1st Respondent, the trial court wrongly applied the doctrine of estoppels against the 1st Respondent. The 1st Respondent can therefore not be said to have kept silent when he was expected to talk nor stood by and watch things happen against or for him without taking action. In other words, the doctrine is inapplicable, to say the least. In the circumstance, this issue is also resolved against the Appellant.

In effect, the appellant has failed to show that the 2nd Respondent violated the provisions of its guidelines for the conduct of the primaries, The court below was therefore justified to so conclude. As a result, the Appellant was not entitled to the Declaratory and injunctive reliefs granted by the trial court.

InSC.390/2011SC.390/2011 the final analysis, this appeal therefore fails in its entirety and it is accordingly dismissed. The decision of the court below which set aside the judgment of the trial court is affirmed.

There shall be no order as to costs.

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SC.390/2011