Hon. Musa Mohammed Pali V Hon. Dr. Mohammed Sani Abdu & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO
The Appellant was the Plaintiff in the suit No. FHC/ABJ/CS/1115/2014 he had brought on the Originating Summons at the Federal High Court, sitting at Abuja FCT. The cause of action arose in Alkaleri/Kirfi Federal Constituency in Bauchi State, from the primary election to nominate the candidate of the All Progressive Congress (APC), the 2nd Respondent, to contest at the general election for a seat at the House of Representatives wing of the National Assembly.
The Appellant claimed that he won the primary election of the APC conducted at Alkaleri, the headquarters of the said Alkaleri/Kirfi Federal Constituency, with the majority of lawful votes; that he was issued the Statement of Result, duly signed by the Chairman and Secretary of the 2nd Respondent, APC’s, primary Election Committee, and that the 1st Respondent (herein) who contested in the primary election against him disputed his victory, claiming, that he, and not the Appellant, was the actual winner of the primary election. The Appellant, as the Plaintiff, further averred that the 2nd Respondent, APC (his party) ignored his victory, and instead submitted to the independent National Electoral Commission, INEC, (the 3rd Respondent herein), the name of the 1st Respondent as its candidate for the general election in Alkaleri/Kirfi Federal Constituency.
The Respondents, as the Defendants at the trial Court, all vehemently denied the assertions of the Plaintiff/Appellant. The 1st & 2nd Respondents, corroborated by the 3rd Respondent (INEC), had alleged that the Plaintiff/Appellant; before the actual voting at the primary election, had in his possession unlawfully sensitive electoral materials; and that he had violently disrupted the gathering of the delegates for the primary election. And further that after he had disrupted the election, the Appellant emerged later and presented result sheets whereon he had unilaterally declared himself the winner of the primary election. The Respondents further averred that subsequent to the disruptive conduct of the Appellant the delegates were re-assembled, with the security at the venue beefed up and that the election thereafter proceeded peacefully and orderly, and that the 1st Respondent, at the conclusion of the election, was declared the winner of the election and the candidate of the APC for the said Alkaleri/Kirfi Federal Constituency. On this state of hostile facts to the assertion or contention of the Plaintiff/Appellant, the suit was nonetheless heard on the Originating Summons.
The Federal High Court (coram: E.S. Chukwu, J), however, came to final judgment – the salient portion of which can be found at pages 532 – 534 of Record. The portion is hereinbelow reproduced thus –
From the exhibits before the Court it is obvious there were no parallel elections. The 1st Defendant only asserted that the Plaintiff forcefully took the materials and wrote the result. The question is with what did the 2nd Defendant now conduct election with which it produced the result which they now flaunts as the official result of the 2nd Defendant and which they now the 3rd Defendant have risen to strongly defend, the said result is fraught with several flaws.
First, it was not properly issued as no relationship is shown between the conduct of the primary election for Alkaleri/Kirfi Federal Constituency except the mere listing of the name of 1st Defendant and his purported scores.
Secondly, the said result was not executed in accordance with the law as it had written signed for the Secretary without indicating who signed it.
What is more it is obvious from my evaluation of Exhibit C that it was made by the 2nd Defendant as an after taught. Be it as it may as I had earlier on commented the 3rd Defendant annexed all the results of what they observed in Bauchi State. But unfortunately they did not provide any evidence that they observed the primaries in this particular Constituency as to assist the Court.
They did not provide any evidence that they observe the primaries in this particular Constituency as they had done in the other 11 Federal Constituencies.
This was an abdication of its statutory duties which must be reprimanded in the strongest of terms.
The effect of this abdication of duty by the 3rd Defendant is that the Court will be left with the evidence of the Plaintiff against that of the 1st and 2nd Defendants. It was incumbent on the Plaintiff is case on preponderance to prove his case on preponderance of evidence which he may not have discharged in this case coming on the wells of the fact that the 2nd Defendant has in unequivocal terms stated who their candidate is and I so hold.
In the end, this case falls and it is accordingly dismissed. I make no Order as to cost.
That is my Judgment.
Hon. Justice E. S. Chukwu
Judge
Federal High Court, Abuja
5/2/2016.
The suit of the Plaintiff/Appellant was dismissed at page 534 of the Record on the ground that he, as the Plaintiff, did not prove his case “on the preponderance of evidence – coming on the wells of the fact that the 2nd Defendant has, in equivocal terms, stated who their candidate is and I so hold”. The lower Court in affirming the dismissal of the case by the trial Court, found that Exhibit A, the result sheet issued by the 2nd Defendant/Respondent supported the stance of the 2nd Respondent that the 1st Respondent was its nominated candidate, having won the primary election of 7th December, 2014 in Alkaleri/Kirfi Federal Constituency. The Lower Court found at page 669 – 670 of the record that –
The Report of the 2nd Respondent’s National Assembly Electoral Panel Bauchi State (Exhibit B) confirmed the result in Exhibit A as the correct result of the primary election, Exhibit C, the Report of Bauchi (State) National Assembly Primaries Appeal Committee which considered and decided the Petition the Appellant (Appellant herein) wrote to it, upheld the primary election as duly conducted and – the result in Exhibit A. During the hearing of his petition to it, the Appeal Committee considered the allegation against the (Plaintiff/- Appellant) that he had before the date of the primary election possession of the statement of result for the election and after the election contained to have in his possession election materials such as ballot papers.
The Lower Court further found as of fact that the Plaintiff/Appellant’s Further Affidavit, in response to the Counter-Affidavit of the 1st Defendant/Respondent to which was attached the result sheet, Exhibit A,
did not directly challenge or dispute the existence and content of Exhibit A. It was silent on it.
It also further found as a fact at page 676 of the Record that the Plaintiff/Appellant did not, in the Further Affidavit, say anything “concerning the part of the report that found as a fact that he had in his possession, before the election, copies of the result for the primary election and had in his possession days after the primary election, election materials such as ballot papers.” Consequently, the Lower Court concluded, on the authority of NISHIZAWA LTD. V. JETHWANI NISHIZAWA LTD (1984)12 SC 234 that the Plaintiff/Appellant having failed to deny the content of Exhibit C is deemed to have admitted it. This conclusion cannot be faulted.
This principle founded on common sense as well as the provisions of the Evidence Act has been practised and enforced in this Court for quite some time now, and it has become trite. The law is settled that facts not disputed or challenged are deemed to have been admitted and are, therefore taken as established: TIMITIMI v. AMABEBE (1953) 14 WACA 3784, ODULAJA v. HADDAD (1973) 11 SC 35; OGOLO v. FUBARA (2003) 11 NWLR (Pt. 831).
The facts of the case, as demonstrated by the Lower Court, are rather very formidable against the Plaintiff/Appellant. On these facts, upon my painstaking perusal of the briefs of argument filed and exchanged in this appeal, my firm view of this appeal is that it is frivolous and vexatious, and a clear case of the abuse of the process of this Court.
The Appellant is attacking the judgment of the Lower Court with as many as 14 grounds of appeal. About Ten (10) out of these 14 grounds of appeal are entirely on pure facts. Issue 1, formulated from 8 grounds of appeal, is an attestation of the fact that the 8 grounds of appeal raise issues of pure fact or at best issues of mixed law and facts. Issue 1 reads thus-
Considering the evidence before Court upon proper evaluation of same and the applicable law, was the Court below right in its decision that it was the 1st Respondent and not the Appellant that won the 2nd Respondent’s primary election and was rightly sponsored as the 2nd Respondent’s candidate for Alkaleri/Kirfi Federal Constituency.
Issue 4, formulated from grounds 8 and 10 of the grounds of appeal, complaining:
Whether the decision of the Court below setting aside the findings of the trial Court with regards to (1st) Respondent’s Exhibits A and C and the 3rd Respondents Exhibit C is not perverse and erroneous upon proper consideration and evaluation of the entire evidence on the record including the said Exhibits;
is also a complaint about the finding of fact by the Lower Court that the trial Court’s views, that Exhibit C — was made by the 2nd Respondent as an afterthought,” are perverse and not supported by the evidence in the printed record. The Appellant further submits that the Lower Court was wrong in setting aside the trial Court’s finding that Exhibit A was not executed in accordance with the law for not stating ex facie the person it was signed for.
In respect of these Exhibits A and C, the Lower Court found that the Appellant in his Further Affidavit did not dispute their contents and existence, and that the averments in the Counter- Affidavit through which they were brought into the proceedings were neither disputed nor challenged. It thus came to the inevitable conclusion that facts not disputed are taken as admitted and therefore established.
The Lower Court, at page 679 of the Record, found that the 2nd Respondent had duly certified Exhibit A “as the correct and true copy of the result in its custody”. This finding prompted its view that the “correctness and genuineness” of Exhibit A must be presumed until the Appellant who challenged it, rebuts it”. Did the Appellant de jure or de facto rebut the content and existence of Exhibit A? He never did so in discharge of the burden of proof imposed on him by Sections 131, 132 and 133 of the Evidence Act, 2011. The Appellant who desired the Court to give him judgment on the absence and content of Exhibit A had the evidential burden of rebutting its existence and true content, the 2nd Respondent having duly certified it as its document. The 2nd Respondent had also, in his unchallenged Counter — Affidavit, laid the necessary foundation that casts on the Appellant the evidential burden to rebut. Chief Olusola Oke, SAN, of Counsel for the Appellant, seems to think and erroneously too, that Exhibit A, not being a “public document” does not need to be duly certified by “the certifying officer of APC”. In my humble view, it is not unlawful to be superfluous. In any case, this is just much ado about nothing. The 2nd Respondent from whose custody 1st Defendant/Respondent’s Exhibit A was duly certified had itself produced and exhibited to the Counter-Affidavit the same document, Exhibit A, which it duly marked also as Exhibit A.
The Counter-Affidavit of the 2nd Defendant/Respondent had in paragraph 3(iii) thereof averred:
That after the primary election results were collated, the 1st Defendant emerged winner with majority of lawful votes and was thereby nominated as the 2nd Defendant’s candidate. Exhibit A is the result sheet of the said primary election certified by the 2nd Defendant.
The Appellant did not, in any further affidavit in response to 2nd Defendant’s Counter-Affidavit, make any effort to challenge, rebut and or dispute the instant averment of the 2nd Defendant/Respondent. The averment in paragraph 3 (iii) of the 2nd Defendant’s Counter-Affidavit is therefore, in law, deemed admitted by the Appellant.
Having found from the printed record sufficient facts or evidential materials in support of the Lower Court’s finding of facts, that in relation to Exhibits A & C the trial Court’s findings of fact and holdings were perverse and not supported by the available facts on record, I am prepared not to disturb such findings. Accordingly I hereby affirm them.
The 1st Defendant’s/Respondent’s Exhibit C is found at pages 214-215 of the Record. The findings and recommendations of the APC Bauchi State National Assembly Primaries Appeals Committee contained in paragraph 2 thereof (at page 215 of the Record) are consequently upon the Appellant’s appeal to the Committee. This domestic Tribunal owes its establishment and existence to Exhibit M5 APC 2014 Guidelines for the Nomination of Candidates for Public Office, annexed to the Appellant’s Supporting Affidavit.
The Appeals committee, whose proceeding is Exhibit C, was set up pursuant to guideline 16 (b) of the said APC Guidelines. The Appellant submitted himself to the jurisdiction and adjudication of his petition to this body. The Appeals Committee unanimously dismissed the petition of the Appellant having found that the Appellant-
“1. Continued (to be in the) possession of election materials (ballot papers) days after the election
- Possession of advanced statement of result.”
I have not seen any sufficient materials that would warrant my holding, as suggested by the senior counsel on behalf of the Appellant, that SEN. GASSOL v. TUTARE & ORS (2013) 3 – 4 SC (pt. 111) 44 at 83 – 84 is apposite to the peculiar facts of this case. The Committee in Exhibit C has not been shown to have been set up to rival or compete with the High Courts in any sphere of jurisdiction specifically vested in the said High Courts by Section 87(9) of the Electoral Act, 2010, as amended. In any case, the invitation to us to invalidate the provisions of guideline of APC Guidelines for the Nomination of Candidates for Public Office should have been made a substantive relief in the Originating Summons if the plaintiff/Appellant was very mindful to have it invalidated. I find the submission and invitation to nullify Exhibit C, just coming from the blues at this stage of the proceeding not only mischievous, but also a clear evidence of Appellant’s desperation.
Exhibit C confirms the Appellant’s deleterious conduct amounting to ex dolo or ex turpi causa non oritur actio that makes it unconscionable for the Appellant to come to the temple of justice to seek justice or a remedy with dirty hands. He had attempted to “steal” the election. His coming to Court, actively supported by officers of the Court, as the lawyers are, for the Court to ratify, endorse or approve his illegality and give it a judicial fillip is what, in my opinion, constitutes the abuse of the Court’s process.
I have found no basis to disturb the findings of fact by the Lower Court, on the basis of which the appeal at the intermediate Court was dismissed. The concurrent findings of facts are that the Appellant, as the plaintiff, did not prove, on the preponderance of the evidence, his case brought on the Originating Summons as he did not discharge the burden of proving all he had asserted in order to be entitled to the favorable judgment of the Court. The Appellant has not shown any special circumstance, including any miscarriage of justice that would warrant this Court disturbing the concurrent findings of fact by the two Courts below. The senior counsel should know that that is the only circumstance this appeal would stand any chance of success. He seems to have preferred worrisomely, his loyalty to his client to his duty to this Court, as an officer in the inner Bar.
This appeal argued substantially on facts, appears to me to have been in the insubordination to the injunction in Section 233(3) of the Constitution, as amended, that appeals on facts, or mixed law and facts shall not lie as of right to this Court from the Court of Appeal. Yet, the Appellant has audaciously walked into this Court without leave in respect of most of the grounds of appeal.
There is no substance in this appeal, and it is accordingly dismissed in its entirety. The Appellant attempted, unsuccessfully, to “steal” nomination as the candidate of the APC for Alkaleri/Kirfi Federal Constituency, in Bauchi State. He was checkmated. The suit, culminating in this appeal is one of the ploys politicians’ use, clearly an abuse of Court’s process, to hoodwink the Courts to endorse the illegalities they perfect in the field. But it should be drummed to every ear that the Court, as the last hope of a common man, should not be conversely turned to be the last hope of the corrupt and desperate politicians seeking to wield power by all means.
I notice the cause of action in this matter arose in Alkaleri/Kirfi Federal Constituency of Bauchi State on 7th December, 2014. Like in DALHATU v. TURAKI (2003) 15 NWLR (Pt. 843) 310; (2003) 7 SC 1, in which the cause of action also arose in Jigawa State; the Appellant herein chose to come to Abuja FCT, as forum convenient, to litigate, in what appears to be “forum shopping”, the practice that was very seriously decried in DALHATU v. TURAKI (Supra).
Taking into consideration all the offensive antics of the Appellant leading to the commencement of the proceedings and till date, I should think an award of Two Million (N2,000.000.00) Naira as costs to each set of Respondents will substantially indemnify them for the costs thrown away.
Accordingly, I hereby order the Appellant to pay to each set of Respondents N2,000.000.00 as costs.
SC.209/2017