Nnanyelugo Chidi Aroh V. Peoples Democratic Party & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the ruling of the Court of Appeal Holden at Abuja in appeal No.CA/A/221/2011 delivered on the 26th April, 2012 in which the court dismissed the application of appellant for leave to adduce further evidence before the lower court. The appeal is therefore an interlocutory one as the main appeal against the decision of the Federal High Court, Holden at Abuja in suit No.FHC/ABJ/CV/83/2011 delivered on the 25th day of March, 2011 still pends before the lower court.

By an Originating Summons filed on the 27th day of January, 2011, the appellant, as plaintiff sought the determination of the following questions by the Federal High Court, Holden at Abuja, to wit:

“1. Whether having won the Primary Elections conducted by the Peoples Democratic Party (PDP) on the 12th of January 2011 for Igbo Etiti/Uzouwani Federal Constituency, is the plaintiff not the duly nominated candidate for the National Assembly Elections in April, 2011.

2. Whether the Primary Election conducted by the Peoples Democratic Party (PDP) on the 12th of January 2011 can be set aside without any petition, complaint or irregularity in the conduct of the Primary.
3. Whether having regard to the extant Laws and Regulations, Peoples Democratic Party (PDP) could conduct another primary election to select a candidate for Igbo Etiti/Uzouwani’s Federal Constituency after the 15th day of January 2011 without recourse to the plaintiff.
4. Whether by virtue of section 87(10) of the Amended Electoral Act 2011, the plaintiff having won the primaries can question or complain against the unlawful replacement by his party and refusal to issue him with INEC nomination forms.
5. Whether in view of Part VI section 50(d) of the Electoral Guidelines for the 2010 of the Peoples Democratic Party (PDP) and complaint that was not brought to the appropriate levels in writing within 24 hours of completion of the primaries Elections of the party can be entertained by the party or said to be valid and proper.
6. Whether in view of Part VI section 50(e) of the Electoral Guidelines for the 2010 of the Peoples Democratic Party (PDP), the plaintiff is entitled to be given an opportunity to present his case and whether he is entitled to be communicated in writing within 48 hours the decisions of the panel.”

Flowing from the determination of the above questions, the plaintiff/appellant sought the following reliefs:-

“1. A DECLARATION that the plaintiff is the duly nominated candidate of the Peoples Democratic Party (PDP) representing Igbo Etiti/Uzouwani Federal Constituency in the Primary Elections conducted on the 12th day of January 2011 for the elections scheduled for April 2011.

2. AN ORDER of injunction restraining the Peoples Democratic Party (PDP), their servants and agents, privies, howsoever from forwarding the name of any other candidate other than that of the plaintiff to the 2nd Defendant as the Peoples Democratic Party (PDP) candidate for the Legislative Elections Scheduled for the April 2011 representing Igbo Etiti/Uzouwani Federal Constituency.
3. An order compelling the 1st Defendant to issue INEC nomination forms to the plaintiff.
4. An order restraining the 2nd Defendant from publishing any other name other than of the plaintiff as the candidate for the Election into the House of Representatives for Igbo Etiti/Uzouwani Federal Constituency in the Elections scheduled for April, 2011

The defendants/respondents in this appeal reacted to the claims of the plaintiff by filing the appropriate processes including a preliminary objection filed on 7/2/11 by learned Counsel for 1st defendant CHIEF OLUSOLA OKE seeking an order striking out the proceedings for want of jurisdiction in that the Originating Summons is incompetent. The above preliminary objection was argued together with the Originating Summons as directed by the trial court. In the judgment delivered on 25/3/11, the trial court held that the facts of the case are seriously in dispute particularly between the affidavits of the plaintiff and 1st defendant as they relate to the questions for determination and that the conflicting affidavits cannot be resolved without recourse to oral evidence etc. Consequently the court ordered parties to file their pleadings in the matter.

It is the above decision which gave rise to appeal NO.CA/A/221/2011.

However, in the course of the proceedings in the said appeal, appellant filed a motion in which he prayed the court for an order granting him leave to adduce further evidence.

The said application gave rise to the ruling of the lower court delivered on the 26th day of April, 2012 in which the court dismissed the application. In effect, the reason for the refusal to grant the application lies in the fact that the action still pends at the trial court where the evidence can be easily introduced at the trial under the general cause list as ordered by the trial court.

The instant appeal is therefore against the decision of the lower court delivered on 26th April, 2012, the issues for determination of which have been formulated by appellant, NNANYELUGO CHIDI AROH ESQ in person in the appellant brief filed on the 13th day of June, 2012, as follows:-

“(1) Whether the Court of Appeal was right in refusing the application of the appellant to adduce fresh evidence in the appeal considering the very vital nature of the evidence sought to be adduced and the overall justice of the suit.

(2) Whether the decision of the Court of Appeal that the appellant still has the opportunity to present the evidence sought to be adduced in the lower court did not amount to deciding the appellant’s appeal at the interlocutory stage without considering the appeal on the merits.”

On his part, learned Counsel for 1st respondent, CHIEF OLUSOLA OKE in the 1st respondent’s brief deemed filed on 04/12/2012 is of the view that the main issue for determination is as follows:

“Whether given the facts of this appeal and the law, the Court of Appeal was not right in holding that the Appellant’s application is lacking in merit and as such dismissed same.”

Learned Senior Counsel for the 2nd respondent, AHMED RAJI SAN in the 2nd respondent’s brief deemed filed on 4/12/12 appellant’s issue No.1 supra, as the appropriate issue for the determination of the appeal.

The two issues identified by learned Counsel for 3rd respondent are the same as those of appellant though couched differently.

In this judgment, the two issues identified by appellant will be treated together.

In arguing the appeal, appellant submitted that the lower court erred in law and indeed misapplied the law when it refused the application to adduce fresh/additional evidence particularly when 1st respondent had pleaded the document in paragraph 59(v) of their counter affidavit to the Originating Summons and relied on same in their written address in paragraph 2.3(II) at page 270 of the record but failed to exhibit the said document; that the case of 1st and 3d respondents is dependent on the document sought to be adduced as fresh evidence; that the refusal of the application to adduce fresh evidence was not a discretion judicially and judiciously exercised as enjoined in the case of EHINLAWO vs OKE (2008) 16 NWLR (pt.1113) 357 at 383; that the evidence sought to be adduced is such as could not have been, with reasonable diligence, obtained for use at the trial; that the evidence is such that if admitted would have an important, not necessarily crucial effect on the whole case; and that the evidence is apparently credible in the sense that it is capable of being believed as it need not be incontrovertible, relying on Asaboro v. Aruwaji (1974) NSCC (Vol. 9) 211 at 214; Ehinlanwo vs Oke supra; Owata vs Anyigor (1993) 2 NWLR (Pt.276) 380; Abatan vs Awudu (2003) 10 NWLR (pt. 829) 451 at 454; Badaru vs S.C.B Nig. Ltd (2003) 10 NWLR (pt. 827) 94.

It is the further submission of appellant that the lower court by stating that trial had not commenced at the trial court and as such appellant has the opportunity to introduce the document sought to adduce as fresh evidence during the said trial, had in effect, determined the substantive appeal at the interlocutory stage, which the law frowns upon; relying on Group Danoe vs Voltic (Nig) Ltd (2009) 3-4 S.C 34 at 71; Akuma Industries Ltd vs Ayman Ent. Ltd (1998) 13 NWLR (pt.633) at 72.

It is also the view of appellant that the court should invoke its powers under section 22 of the Supreme Court Act to determine the entire suit as the lower court can no longer hear and determine the substantive appeal particularly as all the material facts needed to determine the Originating Summons are before the court.

Finally, appellant urged the court to resolve the issues in favour of appellant and allow the appeal.

On his part, learned Counsel for 1st respondent conceded that the conditions an applicant must satisfy in an application for leave to adduce fresh evidence are as stated in the case of Owata vs Anyigor supra but submits that the application before the lower court failed to satisfy the said conditions; that all the conditions must be fulfilled as decided in Iweka vs SCOA Nig Ltd (2000) FWLR (Pt.15) 2524; that appellant’s case still pends at the trial court with evidence yet to be taken in the proceedings; that appellant, in the circumstance, still has his right and opportunity to present the evidence sought to be adduced as additional evidence on appeal.

It is the further submission of Counsel that having regards to the circumstances of this case, it cannot be said that the fresh evidence sought to be adduced could not have been available at the trial when the trial is yet to commence; that the fresh evidence, if admitted, is contrary to the case of appellant at the trial which is to the effect that the primary election of 12th January, 2011 was cancelled by 1st respondent without giving appellant fair hearing, whereas the fresh evidence seeks to establish the fact that there was no cancellation of the said primary election.

Reacting to appellant’s issue 2, learned Counsel submitted that the lower court restricted itself to determining the application before it and that in determining the application, the court had to discuss, the applicable principles of law to the relevant facts of the case.

With regards to section 22 of the Supreme Court Act, learned Counsel stated that the invitation has ignored the fact that the trial court found and held that the suit was wrongly commenced by Originating Summons, which decision is a subject of an appeal still pending before the lower court; that the order now sought from this Court is one which would not have been made by the trial court following its decision and urged the court to resolve the issues against appellant and dismiss the appeal.

In his argument, learned Counsel for 2no respondent submitted that the lower court was right in refusing the application to adduce fresh evidence in that an additional evidence cannot be required at the Court of Appeal when trial has not commenced at the trial court and generally agreed with the submission of Counsel for 1st respondent.

The arguments of learned Counsel for the 3rd respondent are substantially the same as those of 1st and 2nd respondents and therefore need no repetition in this judgment.

It is important to note from the onset that the appeal which is pending at the lower court did not arise from any determination of the trial court on the merits of the Originating Summons filed by appellant but arose from a ruling by that court purely on a procedural issue as to whether the suit initiated by way of an Originating Summons should be heard by affidavit evidence or on pleadings. The trial court held that it is a proper case to be heard on pleadings.

It is not in dispute that the Court of Appeal has the power to grant leave to an applicant before it to adduce fresh/further/additional evidence on appeal as evidenced in Order 4 Rule 2 of the Court of Appeal Rules 2011 which provides as follows:-

“The Court shall have powers to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an Examiner or Commissioner as the court may direct, but, in the case of an appeal from a judgment after trial or hearing of any case or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

From the above provision, it is clear that the powers of the Court of Appeal therein conferred is discretionary and it is settled law that in the exercise of its discretionary powers, a court must act judicially and judiciously.

It is also settled law that where a court has exercised its discretion and an appeal arises therefrom, the question to be determined by the appellate court is whether the lower court exercised its discretion judicially and judiciously. It is not for the appellate court to decide whether it would have exercised the discretion differently and proceed to so decide/act. In the instant case, the lower court exercised its discretion by refusing the application. The question to be determined therefore is whether the exercise by that court of the discretion so conferred on it by law is judicial and judicious.

However, in exercising the powers under Order 4 Rule 2 of the Court of Appeal Rules 2011, supra, certain guiding principles have been laid down by this Court to act as beacon lights to aid the court. The principles have been stated in the case of Owata vs Anyigor (1993) 2 NWLR 380 at 393 to include the following:-

“(i) The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial

(ii) If the fresh evidence is admitted it would have an important but not necessarily crucial effect on the whole case.

(iii) If the evidence sought to be adduced is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.

(iv) Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower court in favour of the applicant, if it had been available at the trial court.

(v) The evidence must be material and weighty even if not conclusive, whore the evidence sought to be adduced is immaterial and irrelevant, it will be rejected.”

From both the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2011 and the principles guiding the court in the exercise of its powers under the said Order 4 Rule 2 supra, it is very clear that the provision is only invoked in an appeal against a decision of a lower court on the merits of the case, In other words, a final decision of the trial court. In the instant case, the decision of the trial court which resulted in the appeal in which the powers of the lower court under Order 4 Rule 2 supra is sought to be invoked was not on the merits of the Originating Summons. It was an interlocutory decision in which the court held, inter alia, at pages 412 – 413 as follows:-

“I believe strongly that the contradictions in these documents of the patties and the apparent conflicts in the affidavit evidence as a whole cannot be resolved without recourse to oral evidence. In other words, the parties will need to adduce oral evidence in this case before the court can determine the questions submitted by the plaintiff pursuant to Order 3 Rule 1 of this court, 2009. I decline to determine the questions submitted by the plaintiff due to the apparent conflict in the affidavit evidence by the parties. Instead I make an order for the parties to tile and exchange pleadings. The plaintiff is given 7 days to do so and serve the other parties. The Defendants are equally given 7 days to file their respective statement of defence and serve the plaintiff…”

It is against the above decision of the trial court that appellant appealed to the Court of Appeal which appeal is still pending. The above decision of the trial court is to enable appellant and the respondents to call oral evidence in support of their contending positions to enable the court resolve the issues in controversy between the parties. Rather than adopt that procedure, appellant decided to exercise his right of appeal, which he is of course entitled to do, but realizing the need for the conflicts in the case to be resolved by calling evidence, appellant decided to apply to the Court of Appeal for leave to adduce additional evidence in the appeal, which evidence he could have easily adduced at the trial court upon the trial under the general cause list as ordered by the trial court supra. This is a misconceived application deviced or contrived to overreach the decision of the trial court. Appellant, apparently, wants to have the decision of the trial court set aside upon an application to adduce fresh evidence on appeal against an interlocutory decision of the trial court, while his appeal against that decision still pends. One may ask: What would be the use of the appeal against the decision that Originating Summons is not the appropriate process to be adopted in view of the conflicting affidavits etc, if the application to adduce additional/fresh evidence is granted

I agree with the lower court that having regards to the peculiar facts of this case, appellant still has opportunity to adduce whatever evidence he intends to call/adduce at the trial proper. The fact is that the decision of the trial court that the matter be tried on pleadings has not been set aside and the court cannot at this stage close its eyes to that glaring fact. It is a statement of fact which is equally relevant to the exercise of the discretion of the lower court under the relevant Rules of Court. It is my considered view that to recognize that glaring fact i.e that trial is yet to commence as ordered by the trial court does not amount in law to deciding the substantive appeal in an interlocutory application. It is rather the surrounding facts and circumstance which aids the court in the decision either to grant or refuse the application for leave to adduce further/fresh evidence on appeal in a matter where no evidence has been taken by the trial court in the first place. While it is settled law that courts are enjoined not to decide the merits of cases in interlocutory proceedings, I hold the view that the same is not the case in the instant case.

On the invitation for the court to invoke its powers under section 22 of the Supreme Court Act, it is very obvious from what I have been saying all along that the invitation is misconceived.

This is an appeal against the interlocutory decision of the lower court refusing an application by appellant to adduce fresh evidence in the appeal. The appeal against the decision of the trial court is still pending at the lower court, which court is to decide the main issue as to whether or not having regards to the facts of the case, an Originating Summons is the appropriate process to adopt in resolving the issues in controversy between the parties. That court ought to be given the opportunity to discharge its functions. If on the other hand appellant realizes that the appeal is an unnecessary waste of his time and the courts’ time as well, he may withdraw same so as to move his case forward. Short cuts are very dangerous at times.

In conclusion, I find no merit whatsoever in the appeal which is accordingly dismissed with costs which I assess and fix at N200,000:00 to each set of respondents.

Appeal dismissed.

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SC.214/2012