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Peoples Democratic Party (Pdp) V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal filed by the Appellant who was the 1st Respondent of the trial Court in suit No. FHC/UM/CS/94/2014 now FHC/ABJ/CS/71/2016 against the judgment delivered by Hon. Justice Okon Ajang on 27/6/16. The Appellant’s brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN and Dr. Joseph Nwobike SAN and filed on 15/7/16. The Appellant’s Reply Brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN, Dr. Joseph Nwobike SAN, Dr. Paul Anonoba SA, Prof. Ernest Ojukwu SAN and Valentine Offia Esq and filed on 4/8/16. The 1st Respondent’s Brief was filed by Dr. Alex A. Izinyon, SAN, OFR, O. O. Okpeseyi SAN, O. J. Nnadi SAN, Femi Falana SAN; and other counsel on 1/8/2016.

In the Appellant’s Brief, 8 issues were identified for determination as set out below:

1) Whether the trial Judge was wrong when he proceeded to hear and determine the originating summons having regard to the nature of complaint as well as the conflicting affidavit evidence of the parties without requiring oral evidence and also when he proceeded to place the burden of proof on the Appellant and the 2nd Respondent. Ground II

2) Whether the trial Judge was wrong when he held that the determination of whether the information contained in documents attached to the INEC form CF001is false does not involve the issue of forgery or making of false documents under the Criminal Code or Penal Code. Grounds I, IV, and V

3) Whether the trial Judge was wrong when he held that the Appellant and 2nd Respondent having failed to submit to INEC valid tax receipts for 2011, 2012 and 2013, the 2nd Respondent was not qualified to contest the Governorship election and was further disqualified from contesting the Appellant’s primary election by virtue of Article 14 of the appellant’s Election Guidelines for 2014. Grounds XXI, XXII, XXIII, XXV, XXVII, XXVIII and XXXI

4) Whether the trial Judge was wrong when he held that in determining the falsity or otherwise of documents delivered with Form CF001, the Court will not have regard to any other document introduced by the Appellant and 2nd Respondent to explain any misapprehension of documents attached to the Form CF001. Grounds X and XIV

5) Whether the trial Judge was wrong when held that it was 2nd Respondent who supplied all the information in the relevant form before the tax receipts and tax clearance certificates were issued by Abia State Internal Revenue Service which he thereafter submitted to the 3rd Respondent with Form CF001. Grounds XXIV

6) Whether the trial Judge was wrong when he held that the Form CF001 was submitted by the 2nd Respondent to the 3rd Respondent and that the documents attached thereto contained false information. Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV

7) Whether the trial Judge was wrong when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs as contained in the Judgment. Grounds XXIV, XXXII and XXXIII

8) Whether the trial Judge was wrong when he held that by virtue of Order 27 Rule 4 of the Feral High Court Rules, 2009, no other affidavit will be filed as of right after a Plaintiff’s reply affidavit. Ground III.

In the 1st Respondent’s brief settled by Dr. Alex Azinyon et al, the following 8 issues were also set down for determination:

1) Whether considering the documentary and affidavit evidence before it and the nature of the claim under Section 31(2), (5) & (6) of the Electoral Act, 2010 (as amended), the trial Court was not right in law in its finds that the 1st Respondent’s action could be determined by means of Originating Summons and placing the burden of proof on the Appellant and the 2nd Respondent. (Encompassing Ground II of the Notice of Appeal)

2) Whether the trial Court was not right in its decision that in an action brought pursuant to Section 31(5) of the Electoral Act, 2010 (as amended) what is required to be established is falsehood of the information contained in the documents attached to the INEC Form (CF001and not forgery or making of false documents under the Criminal code or Penal Code (Encompassing Grounds I, IV and V of the Notice of Appeal)

3) Whether having regards to the facts and circumstances of this case, the trial Court was not right in law to have held that the 2nd Respondent was disqualified from contesting the Abia State Governorship Election and the Appellant’s Abia State governorship primary Election as a result of the 2nd Respondent submitting to INEC Tax Receipts for 2011, 2012, 2013 not known to law or failure of tax papers showing payment of income tax to Abia State Board of Internal Revenue in line with Article 14(a) of the Appellant’s Electoral Guidelines, 2014. (Encompassing Grounds XXI, XXII, XXIII, XXV, XXVI, XXVII, XXIII and XXXI of the Notice of appeal)

4) Whether the trial Court is not right in law when it held that it is only bound to examine the documents attached to INEC Form CF001 and forwarded to INEC, to determine if they contain false information and not documents not forming part of documents attached to the Form CF001.

(Encompassing Grounds X, and XIV of the Notice of appeal)

5) Whether considering the facts and circumstances surrounding this case, the trial court was not right when it held that it was the 2nd Respondent that submitted all information in the relevant form before the tax receipts and Tax Certificate were issued by the Abia State Internal Revenue Service and also that the 2nd Respondent submitted the documents to INEC. (Encompassing Grounds XVII, of the Notice of appeal)

6) Whether the trial court was not right when it held that the documents attached to INEC form CF001 contained false information and same as submitted to INEC by the 2nd Respondent. (Encompassing Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV of the Notice of appeal)

7) Whether the trial court was not right to have held that 1st Respondent was the person qualified to be presented to the and Respondent as the Appellant’s candidate for the Abia State Governorship Election and granted the reliefs contained in its judgment. (Encompassing Grounds XXIV, XXXII and XXXIII of the Notice of appeal)

8) Whether the trial Court was not right in law when it held that by virtue of Order 27 Rule 4 of the Federal High Court Rules, 2009, the 2nd Respondent’s Further Counter Affidavit to 1st Respondent’s Reply Affidavit could not be filed as of right but with leave of court. (Encompassing Grounds III of the Notice of appeal)

As the judex in this matter, I have however as I have the right to do, crystallised all the issues into four and set them down as follows:

1. Whether the learned trial Judge was right to determine the complaints by the origination summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and placing the burden of proof of the facts in issue on the Appellant and 2nd Respondent.
2. Whether the learned trial Judge was right to hold that Appellant and 2nd Respondent submitted false tax papers to INEC and that constituted ground for his disqualification to be presented as a candidate for the Appellant at the Gubernatorial Election.
3. Whether the learned trial Court was right when he held that Or 27 r 4 of the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after form CF001 to explain any misapprehension in the documents attached to the form CF001.
4. Whether the learned trial judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant all the reliefs sought by the 1st Respondent in the originating summons.

ISSUE ONE

Whether the learned trial Judge was right to determine the complaint by the originating summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and the placing of the burden of proof of the facts in issue on the Appellant and 2nd Respondent.

Senior counsel for the Appellant argued that the learned trial Judge prevaricated on the nature of the dispute before him by saying that material facts were not in dispute, and that the onus of proof is on the appellant and 2nd Respondent to prove that the information contained in form CF001 submitted to INEC were not false . Senior counsel argued that the proceedings were hostile in nature bearing in mind the volume of affidavit and counter-affidavit evidence before the Court. Counsel urged the view that the Court cannot pick and choose whose affidavit evidence is true as witnesses should be tested under the fire of cross examination. That is why hostile proceedings must be by oral evidence. Counsel cited D.P.C.C. LTD. v. B.P & C LTD (2008) 4 NWLR (Part 1077) 376; FALOBI v. FALOBI (1976) 1 NMLR 169; F.S.B. I BANK LTD. v. IMANA NIG LTD 11 NWLR (Part 679) 620. Counsel also cited RIMI v. INEC (2005) 6 NWLR (Part 920) 56 at 84 (Para A-C).

Counsel submitted that Or 3, r (6) (7) (8) & (9) of the Federal High Court do not contemplate originating summons procedure where there is anticipation of hostility in the proceedings. Counsel cited Olley v. Tunji (2013) 10 NWLR Pt. 1362 Pg. 275 at 322. Senior counsel argued that the 1st Respondent deliberately employed an improper mode to commence a hostile action and that the summons should be struck out as an abuse of Court process.

C.O.M. Inc v. Cobham (2006) 15 NWLR Pt. 1002 Pg. 283 at 303; Saraki v. Kotoye (1992) 9 NWLR Pt. 284 Pg. 156 at 189, Odukwe v. Achebe (2008) INWLR Pt. 1067 Pg. 40 at 57 €“ 58 were cited in support.

Learned senior counsel for the Appellant argued that on Pg. 1201 of the Record, the learned trial Judge was wrong to hold that the onus of proof that the tax documents were not false rests on the Appellant and 2nd Respondent. Senior counsel argued that wrong placement of the burden of proof on a party leads to misdirection which invariably leads to a miscarriage of Justice.

Cited also IKUOMOLAvs. IGE (1992) 4 NWLR (Pt. 236) 511 at 526. SANDY v. HOTTOGUA (1952) 14 WACA 18, where the court held that proceedings held on the wrong assumption that the onus was on a party is a matter which affects the due consideration of the case by a trial Judge. See also ONOBRUCHERE v. ISIBOR (2004) 3NWLR (PT 859) 16, 43-44.

Senior counsel submitted that declaratory reliefs, where sought imposes no burden on the defendant as they cannot be granted even on admission. Counsel cited Nyeson v. Peterside (2016) 7 NWLR Pt.1512 pg. 452 at 535. Senior counsel also submitted that there is no distinct specie of false information other than what obtains under the Criminal Code or Penal code. This is for the reason that a finding that a party presented a false document is indeed something which borders on, not just moral turpitude, but outright criminality. The Electoral Act, supra was thus not fashioned to penalize inaccuracies or inadequacies but rather those acts specifically concocted to syncopate and subvert the requirements of the law relating to the qualification of a candidate.

It was further submitted for the Appellant that for section 31 (5) of the Electoral Act to avail a party, it be established that a false document was presented. Senior counsel went on to define what constitutes false document.

Counsel argued that a false document must be established by the fact of a felonious intent coupled with felonious act. Counsel cited Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; Oduah v. FRN (2012) 11 NWLR Pt. 1301 Pg. 76. Counsel insisted that the 1st Respondent who made the allegation must prove it. Counsel cited PAM VS. MUHAMMED (2008) 16 NWLR (PT 1112) 1; UZOKA VS. FRN (2010) 2 NWLR (PT 1177) 118; ADEWALE VS. OLAIFA (2012) 17 NWLR (PT 1330) 478; EDOHEOKET VS. INYANG (2010) 7 NWLR (PT 1192) 25. Senior counsel also argued that with specific reference to the allegation which touched on inadequacy of payments made by the 2nd Respondent, which clearly does not come within the ambit of section 31 (5) of the Electoral Act, it is submitted that the point is equally not established. The 1st Respondent did not prove that an assessment of the 2nd Respondent’s income was made and served on him by the tax assessment authority and that he failed to pay the assessed sum. The evidence of Mr. Okoji disclosed that the 2nd Respondent had nothing to do with the assessment. The tax was on a PAYE with deductions made at source. Issue of non-payment of the assessed tax therefore cannot arise.

In answer to the above argument, learned senior counsel for the 1st Respondent argued that the issues for determination raised by the 1st Respondent in his Originating Summons principally relate to the construction of paragraph 14(a) in Part IV of Appellant’s Electoral Guidelines for Primary Election, 2014 Section 87(4)(B)(i) and (ii) of the Electoral Act, 2010 (as amended) and Section 31(2), (5) and (6) of the Electoral Act, 2010 (as amended). Counsel referred to pages 191 – 193 of Vol. 1 of the Record. In the case now on appeal, what was sought to be determined is whether exhibits A to H disclosed false information within the meaning of section 31 of the Electoral Act 2010 (as amended) for which section 31(5) and (6) can be invoked against the 2nd Respondent and was indeed invoked against the 2nd Respondent.

Senior Counsel argued that the facts relied upon by the 1st Respondent was principally documentary in nature and the said documents which are Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘E1’, ‘F’ and ‘H’ surprisingly belong to the 2nd Respondent and the 2nd Respondent did not in any way deny their existence. Counsel argued that even though not conceded that there are contentious facts, this has clearly been explained away by the aforesaid documentary evidence. It is trite law that where documentary evidence has explained away conflicts or contentious facts in an affidavit, there is no need to resort to oral evidence. See ETIM V. OBOT (2010) 12 NWLR (PT. 1207) AT 157, PARAS. C – D; OBOAZIKWO V. OBIAZIKWO (2008) 8 NWLR (PT. 1 090) 55 AT 573, PARAS. C-D; WINLYN LTD. V. NACB CON. & FIN. CO. LTD. (2000) 8 NWLR (PT. 670) 594 AT 600, PARAS. B- D; BUNGI V. GOV. RIVERS STATE (2006) 12 NWLR (PR. 995) 573 AT 629-630, PARAS. H- B.

Cited also are JEV V. IYORTOM (2014) FWLR (PT.747)749 AT 777, PARAS. B- C; A.G. ADMAWA V. A.G. FEDERATION (2005) 18 NWLR (PT. 958) 581 AT 620, RARA. G; ANZAKU V. GOVERNOR OF NASSARAWA STATE (2005) R NWLR (PART 919) 448 AT 502 PARAS. C – F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.) 448 AT 502 PARAS. C- F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.

Learned senior counsel for the 1st Respondent also argued that where the document submitted by a candidate is false, the legal consequence is not penal but simply disqualification, which is not a criminal offence not subject to conviction and imprisonment. See Section 31(5) of the Electoral Act 2010 (as amended). It is not a criminal offence. So, the use of the word “perjury” by the learned trial Judge was used in a loose sense to connote that the 2nd Respondent (Dr. Okezie Victor Ikpeazu’s) tax clearance contain false information cannot be stretched to connote wrong burden of proof in the light of the decision of the Supreme Court in Ekagbara vs. Obasi (supra). Ekagbara vs. Ikpeazu (2016) 4 NWLR Pt. 1503 Pg. 411 to 439.

Senior learned counsel for 1st Respondent argued that the case of OLLEY V. TUNJI (SUPRA) relied upon by the Appellant at paragraph 5.05 of its Brief is inapplicable to the facts and circumstances of this case. He countered the submission of the Appellant in paragraph 5.06, that the introduction of Counter-Affidavit of the Appellant and 2nd Respondent and the Counter-Affidavit of James C. Okoji further magnified the said hostility of Court, as highly misconceived. Senior counsel insisted that the said Counter-Affidavits are oral evidence which amounts to efforts to explain the content of documents which is not allowed in law. Counsel urged this Court to reject the said contention of the Appellant. The cases of DPCC LTD. V. V.B.P. & C. LTD. (SUPRA); FALOBI V. FALOBI (SUPRA) and F.S.B.I. BANK LTD. V. IMANA LTD. (SUPRA) heavily relied upon by the Appellant are inapplicable to the facts and circumstances of this case, also argued senior counsel.

Learned 1st Respondent’s counsel argued that Irrespective of the perspective from which one looks at it, there is no inkling expressly or by implication on the face of the aforesaid Section 31 (5) and (6) of Electoral Act, 2010 (as amended), that forgery or the making of false documents under the Criminal or Penal Code is required, to establish the aforesaid false statement.

Counsel submitted that merely establishing the fact that the information in the affidavit or the document submitted to INEC is false, suffices and no more. Section 31(5) of the Electoral Act, 2010 (as amended) is intended to make persons aspiring to occupy public offices to be vigilant, meticulous and exhibit high level of responsibility. Consequently, any information in their affidavit or document which is established to be false, will result in their being disqualified from contesting the election. The issue of forgery or making of false documents under the criminal Code or Penal Code as canvassed by the Appellant in paragraphs 6.01 of its Brief did not flow from the 1st respondent’s case but ingeniously created by the Appellant. 1st Respondent submitted that it is trite law that a court of law cannot read into a law what is not contained therein. Senior counsel cited UTB (NIG) LTD. V. U UKPABIA (2000) 8 NWLR (PT. 670 AT 580, PARA. E; ADEWOLE V. ADESANOYE (1998) 3 NWLR (PT. 541) 175 AT 198, PARA. G. See UGBA V. SUSWAB (2013) 4 NWLR (PT. 1345)AT 474- 475, PARAS. C- A; ACTION CONGRESS V. INEC (2007) 12 NWLR (PT. 1048) 222 AT 275 – 276, PARAS. G- H.

1st Respondent senior counsel complained that the appellant by its defence in the counter-affidavit or the Appellant’s brief of argument introduced a case of forgery of tax clearance certificate or tax receipts, which is not the case put forward for determination by the 1st Respondent.

To show that false information as envisaged in Section 31 (5) of the Electoral Act 2010 (as amended) is different from forgery or outside the purview of criminality as canvassed by the Appellant, Section 31 (5) of the Electoral Act 2010 (as amended) did not provide penal consequences against the 2nd Respondent but simply that the person shall be disqualified. Senior counsel for 1st Respondent then insisted that the information need not be forged or falsified, so long as any document is not correct, the candidate is liable to be disqualified and was rightly disqualified by the trial Judge.

OPINION

Let me first tackle the issue of the appropriateness of the originating summons procedure in initiating this suit at trial. A Plaintiff would know surely from the nature and the cause of action that it would not only be highly contentious but also hostile. The originating summons procedure is meant to determine simple questions of interpretation of statutes documents, wills, deeds etc. It must be understood that we have not been asked nor was the trial court asked to interpret the provisions of S. 31 (5) or s . 87(4)(B)(i) and (ii) of the Electoral Act 2010 or Article 4a of the PDP Electoral guidelines 2014. The trial Court was specifically asked in the originating summons to determine whether specific tax documents submitted by the 2nd Respondent to INEC were false or not. The trial was therefore the engagement of the trial Judge on the factual interpretation of the contents not of a deed or will or statute but tax receipts and certificates issued by a tax authority. It was not in anyway a legal interpretation of the contents of a deed or statute or document. In the con Justice that the document sought to be interpreted was not in dispute. What I am trying to say is that if the beneficiaries of a will are agreed on the validity of the will but are not agreed on the interpretation of some clauses of the will, then the suit can come by originating summons. However, where there is dispute as regards the validity of the will itself, the proceedings would be hostile in nature and facts would be in dispute. Such a case must be originated by writ of summons.

I had once before made the mistake the learned trial Judge made and was quickly and suitably put right by the esteemed Justices of the Supreme Court in OLLEY V. TUNJI supra at Pg. 322 of Pt.1362 of the NWLR. The Supreme Court reiterated the position as follows therein:

“In Re King, Mellor v. South Australian Land Mortgage Agency Coy (1907) 1 Ch. 72 at 75, Neville, J held, inter alia:

“€¦it is our considered view that originating summons should only be applicable in such circumstances as where there no dispute on questions of facts or the likelihood of such dispute”.

Back home, our Courts have shown the same reticence as their English counterparts with regard to application by way of originating summons. In Doherty v. Doherty (1968) NMLR 241 (1967) SCNLR 408, Ademola, CJN, issued the warning that the use of originating summons is not suitable in hostile proceedings. See also National Bank of Nigeria Ltd. & Anor. V. Lady Ayodele Alakija & Anor (1978) 9 €“ 10 SC 59 at page 71 – 75 wherein this court traced and reviewed the history of originating summons and held thus at page 86 of the report:

“Originating summons should only be applicable in such circumstances as where there is no dispute on questions of facts or (even) the likelihood of such dispute.”

In the matter before us, there is, from the record, not only a mere likelihood of dispute on facts, there is actual dispute on material facts. The 1st Respondent cannot invoke the concept of technicalities yielding place to substantial Justice to rewrite or truncate the provisions if order 3 of the Federal High Court (Civil Procedure) Rules 2009, particularly Rule 6 thereof.”

I have to agree with learned Appellant’s counsel that being hostile proceedings the suit should NOT have been initiated by originating summons and is thus liable to be struck out and should have been struck out by the trial Judge immediately objection was raised. By proceeding to sift through conflicting affidavit evidence of the parties and unilaterally electing to pick and choose which of the Appellant’s evidence to evaluate, accept or reject, it cannot be said that there was no need for oral evidence when the trial Judge engaged in cloistered Justice.

I agree with Dr. Ikpeazu that if the case of the 1st Respondent was founded on the fact that the 2nd Respondent lied on oath and submitted false papers calling on the 2nd Respondent to rebut these allegations, then they were potentially hostile and were actually hostile proceedings. For example as said earlier this is different from where we all agree that our father made a will but we don’t agree with how the executors wish to interpret a clause in the will or we disagree about the interpretation of a phrase in a statute or the Constitution. It is no doubt equally the law that documentary evidence can be employed to resolved conflicting affidavit evidence. This principle of law will, however, not prevail where the document itself is the subject matter of the dispute and cannot by itself dispense with the need to call oral evidence. See MAGNUSSON v. KOIKI & ORS (1991) 4 NWLR (Part 183) 119 at 129 (Para D-E); PHARMACIST BOARD v. ADEBESIN (1976) 5 SC. 43; EBO v. OKI (1974) 1 SC. 179.

On the issue of where the burden of proof in this case lies, I think the very words of S. 31 (5) of the Electoral Act puts the burden of proof in my humble view on the 1st Respondent who is claiming that the information on form CF001 is false. Section 31(5) provides as follows:

A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by the candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

It is the Plaintiff who must initiate the proceedings to prove it. Clearly declaratory reliefs to find the tax documents false were sought for and the burden to prove entitlements to those declaratory reliefs rested squarely on the 1st Respondent. See Nyelson v. Peterside supra where the Supreme Court held on pg.535 of Pt.1512 of the NWLR as follows:

“It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”

Learned Appellant’s counsel argued a point to which I subscribe to the effect that the allegations of fraud and the way they were couched indicates that there was a form of falsehood or forgery involved. The 1st Respondent cannot allege falsehood of the documents in one breath and then in the other breath claim that this is not an accusation of forgery or making false documents. The learned trial Judge was also speaking from two sides of the mouth and prevaricating. You cannot say a document is false and then say that that incidence is different from making a false statement under the Criminal and Penal code. In ARCHIBOLD – Criminal Pleadings Evidence and Practice 1997 edition at page 1904 paragraph 22.18, it was explained thus:

“For an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered”. Reliance was placed on R. V. MORE 86 Cr. APP.R. 234.

The dictionary variously defines “false” to mean

(1) Not in accordance with fact or reality or actuality

(2) Erroneous and usually accidental

(3) Deliberately deceptive

(4) Not genuine or real

(5) Designed to deceive

The learned trial judge found that the documents fit the above description but yet they were not forgeries. This is moreso when the document was attached to a sworn affidavit. Such a false statement amounts to perjury which the learned trial Judge in the end of pg. 1299 of the Record accused the 2nd Respondent of. The proof of such a grave allegation must perforce rest of the person making these allegations. They are criminal offences for which proof is required beyond reasonable doubt. The burden of proof was misplaced in this case and in my view has led to gross miscarriage of Justice. This issue is resolved in favour of the appellant.

ISSUE TWO

Whether the learned trial Judge was right when he held that the 2nd Respondent supplied false information to the tax office in Abia State who then issued Tax Receipts and Certificates which the 2nd Respondent then gave to the appellant which said Tax documents were then attached to Form CF001.

Learned Appellant’s counsel on this issue reiterated the argument that the following allegations were levied against the 2nd respondent in the originating summons which the learned trial Judge found proved.

(i) He did not submit tax receipt for 2011, 2012 and 2013 known to law;

(ii) He did not submit tax receipt showing that taxes were paid as and when due; and

(iii) 2nd Respondent was in consequence of the foregoing not qualified to contest the Appellant’s primary election.

Senior counsel argued that Form CFOO1 submitted to INEC and which was accompanied by the tax document which presumably disqualified the 2nd Respondent from contesting the primary of 8th December, 2014 was actually submitted and was received by INEC on 26th December, 2014 – 16 days after the primary and that it is obvious that if the primary election took place on 8th December, 2014, submission of Form CF001 to INEC on 24th December, 2014 could not have disqualified the 2nd Respondent for a primary which took place earlier.

Senior counsel also submitted that the argument of the 1st Respondent and the opinion of the learned trial Judge that the 1st Respondent’s counsel quoted the Guidelines in his address, the parties joined issues on them and did not dispute their existence which had been judicially noticed in Ukachukwu v. PDP are untenable. Counsel submitted that a Plaintiff has a primary obligation to place before the Court every requisite material and document in proof of his case. Counsel cited ADELAJA V. ALADE (1999) 6 NWLR (Part 608) 544; JIAZA V. BAMGBOSE (1999) 7 NWLR (Part 610) 16 NWLR (Part 1168) 443 at 456. Cited also OMOTAYO V. C.S.A (2010) 16 NWLR (Part 1218) 1.

Senior counsel also cited C.P.C. v. INEC (2011) 18 NWLR pt. 1279 pg. 493 at. 554; Ogunsanya v. the State (2011) LPELR- 2349SC at 44 – 45; okwejiminor v. Gbakeji (2008) 5 NWLR pt. 1079 pg. 179 pg. 179 at 223; C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR pt. 1083 pg. 36; Igwe v. A.I.C.E. to support the point that where material evidence is required, address of counsel cannot be substituted for it. Counsel argued that in the absence of the PDP Guidelines, the declarations founded on them cannot be granted.

Counsel argued that the arrow head of the 1st Respondent’s case as found by the learned trial Judge is that Exh. A, B, C & D “were made on 4/7 /2014” and thus the 2nd Respondent did not pay his tax “as at when due”. Senior counsel argued that the provisions of the 2010 PDP Guidelines are markedly different from the 2014 PDP Guidelines in the first instance and the parties cannot read into a provision what is not there since the phrase “as at when due” is not part of the 2014 PDP Guidelines. Counsel cited FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 2 SCNJ 348; BUHARI V. INEC (2008) 12 S.C. (Part 1) and LADOJA V. INEC (2007) 13 N.W.L.R. (Part 1047) 119 at 188 to 189.

Senior counsel for the Appellant further submitted that neither the Electoral Act, 2010 (as amended) nor the Constitution of the Federal Republic of Nigeria, 1999 (as amended) required the Appellant and 2nd Respondent to submit evidence of tax payment as a ground for qualification of the 2nd Respondent. There is no common law right to contest an election as that right is created and regulated by statute. Also that Section 177 of the Constitution which is couched in mandatory terms by the adoption of the term “shall”, prescribes the factors which “shall” qualify a candidate to occupy the office of a governor of a State. No other law can add to or subtract from it unless enabled by the constitution by virtue of any of its enabling provisions. Section 177 of the Constitution then proceeded to prescribe for the purpose of election to the office of a governor of the State, the minimum standard which every aspirant must attain.

Senior counsel then urged this Court to hold that the provisions of the PDP Guidelines cannot supersede the 1999 constitution and the Electoral Act and that what is not required by the Constitution as qualification should not be required by the political party. Learned counsel referred to Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg. 367; Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; ANPP v . Usman (2008) 12 NWLR Pt. 1100 Pg. 1 at Pg. 54 – 55; AG. Abia v. AG. Federation (2002) 6 NWLR Pt. 763 Pg. 264 at 391- 392. Senior counsel is of the view that the right created by S. 31 (5) and (6) of the Electoral Act does not constitute a fresh ground for qualification or disqualification. The Court cannot introduce new grounds of disqualification. Counsel cited this Court in A.D. v. Fayose (2005) 10 NWLR pt. 932 pt. 151. The most that can be said on the issue of tax is that it will be a ground of sponsorship within the political party where such is provided in the guidelines of the political party. Where as in this case, the political party which did not as quoted by 151 Respondent’s counsel require that tax be paid “as at when due” and the same party was satisfied with the evidence of tax payment supplied by the 2nd Respondent, it really should be the end of the matter.

On the foregoing issue, learned 151 Respondent’s counsel argued in paragraph 4 .80 of the brief as follows:

“The case of the 1st Respondent under Section 31(2)(5) and (6) of the Electoral Act, 2010 (as amended) is not that the 2nd Respondent is obligated to submit tax receipts and Tax Clearance Certificate to INEC but that the information contained in the said Tax receipts and Tax Clearance Certificate submitted to INEC by the 2nd Respondent are false, which does not show payment of tax, and or false information therein.”

Learned 1st Respondent counsel relied heavily on the opinion of the Supreme Court in Ukachukwu v. PDP supra quoted copiously to argue that the failure to show evidence of payment of tax in the preceding years pursuant to Article 14 (a) is a disqualifying factor. On the requirement of Tax Clearance Certificate, counsel argued that it is important to state that payment of tax is typically provided for in the political parties’ guidelines for election which the aspirant for election office must satisfy as a condition precedent for eligibility to contest elections. Therefore S. 87(9) of the Electoral Act gives the party guidelines a statutory flavour for which the Court can take judicial notice, moreso when parties have not joined issues on the existence of the Guideline which they agree do exist.

Senior counsel for 1st Respondent argued that by virtue of S. 124 of the Evidence Act, the affidavit in support of the originating summons set out the PDP Guidelines which are rules in force in the PDP which existence was not contested by the Appellant, they are deemed admitted by the Appellant.

Senior counsel debunked the contention of the Appellant that what Section 31(2) of the Electoral Act or indeed the entire Section 31of the electoral Act intended is constitutional disqualification as provided in the 1999 Constitution of the Federal republic of Nigeria (as amended).

Counsel insisted that it stands to reason that where the tax receipts and tax clearance certificates submitted to INEC in proof of compliance of the 2nd Respondent with the Electoral Guideline for the said PDP Primary election is false, the entire, status erected and mounted by the 2nd respondent that enabled him to participate in the PDP primary election collapsed.

A disqualification pursuant to Section 31 (5) of the Electoral Act 2010 (as amended), for giving false information, cannot therefore, be restricted and limited to failure to meet constitutional requirements by a candidate.

Senior learned counsel argued that disqualification can arise for breach of the constitutional requirements under the 1999 Constitution or for breach of the Electoral Act. Senior learned counsel referred us to the joint Counter Affidavit admitted 2nd Respondent completing INEC Form CF001 and submitted same to INEC but that eh staff of the Appellant (PDP) inadvertently or in error included photocopy of the tax clearance certificate for 2012 and 2013. It also stated that it discovered there was an earlier error in the one submitted for 2011 on Receipt No.: 0012845 and had to be cancelled upon discovery of the error and therefore they cancelled the said receipt shown as Exhibit ARIRSF. Senior learned counsel insisted that this is even enough to prove false information.

2nd Respondent again filed a further Counter Affidavit in opposition to the Originating Summons on 16 I 3 I 16. Counsel referred us to pages 771 – 785 of Vol. 2 of the Record. Attached to the said Further Counter Affidavit are Exhibits OKl, OKS. Exhibit Ok which is 2nd Respondent’s Appointment Letter as General Manager of Abia State Passenger Integrated Manifest Scheme with effect from the 19th July, 2011 and that the learned trial Judge was correct in his findings on the falsehood of the tax documents. Senior counsel argued that the provision of S. 31 (5) has nothing to do with forgery as it only relates to false information. It is a novel provision of the Electoral Act as it provides that an aspirant to such highly exalted position must be like Ceaser’s Wife, be above board, blameless and free from suspicion. To demonstrate this, the Supreme Court had given the legal imprimatur of what is to be proved and defence under Section 31 of the Electoral Act. All the Plain tiff needed is what the said aspirant submitted to INEC pursuant to Section 31(2) of the Electoral Act. See Ekagbara v. Ikpeazu (supra).

Learned 1st Respondent counsel insisted that it’s a cul de sac provision and all complete once the document had been signed. Therefore senior counsel urged us to hold that the 8 unassailable findings of the learned trial Judge in respect of the tax documents submitted by the 2nd Respondent were well founded, moreso when oral evidence cannot be allowed to contradict the written documents submitted. Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at 539; AG Bendel v. UBA (1986) 4 NWLR Pt. 37 Pg. 547 at 563; Manfag Nig. Ltd. v. M/S 0.1. Ltd. (2007) 14 NWLR Pt. 1053 Pg. 109 at 137 – 138. Senior counsel insisted that once a person admits any singular or plurality of error in the said Form or affidavit in the battle to exonerate himself in his action, it is an admission against interest. It is worse if he brings another document which came later as a correction of what is already filed in CF 001 with INEC, moreso as the 2nd Respondent had settled by affidavit declaration that everything he included in his form and attached to it are correct. It is too late to explain any inadequacy in the submitted documents.

Learned senior counsel insists that once the statement submitted to INEC in form CF001 is untrue, incorrect or logically wrong whether by intent, by accident or by mistake then the ingredients of disqualification under S. 31 (5) is complete and the documents cannot be salvaged by any corrected document or explained by affidavit evidence. He relied on Ekagbara v. Ikpeazu supra. The Court was entitled to look at Exh. A- H and make a findings as to their falsehood. Counsel cited FASHANU V. ADEKANYE (1974) 1 ALL NLR 35, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 BWLR (PT. 135) 688 at 734 – 735, KANNO V. KANNO (1986) 5 NWLR (PT. 40) 138.

OPINION

As senior learned counsel for the 1st respondent kept on insisting, this was a two pronged attack on the Appellant and the 2nd Respondent. There is the issue of the non- observance of the provisions of the PDP Electoral Guidelines for Primary, which the 1st Respondent claims is enough to disqualify the 2nd Respondent, the second leg is that the 2nd Respondent submitted “false” tax documents which automatically led to his disqualification by the learned trial Judge. In the first instance, I do not agree with learned Appellant’s counsel that the issue of alleged non qualification of the 2nd Respondent cannot be taken up even after the primaries by the co-aspirant. Under S. 87(9) and under S. 31 (5) of the Electoral Act by “any person”. There is no doubt that the challenge to what took place at the primaries can only be made by any of the aspirants who is not happy with the outcome of the primaries due to any alleged executive or administrative lapses in the conduct of the primaries by the party. The provision of S. 87(9) of the Electoral Act is not at large but limited to an aspirant complaining about the conduct of the primaries. See. Ukachukwu v. PDP supra, Uzodinma v. Izunaso (No. 2) (20 11) 17 NWLR Pt. 1275 Pg. 30, Uwazurike v. Nwachukwu (2013) 3 NWLR Pt. 1342 Pg. 503. It is not in my humble view a good argument that the tax papers submitted to the Appellant before the primaries cannot be used to challenge the result of the primaries even after the said primaries had taken place. It is trite that a cause of action is founded when the aggrieved person realizes the grievances or it is brought to his knowledge. So if anyone submitted false or forged papers at the primary election stage and the other aspirant or the world at large is not aware of the falsehood in the documents until they are mandatorily published by INEC, weeks later, the aggrieved person is entitled to challenge the veracity of the document as soon as possible immediately thereafter, in that case it may be any person who could do so based on the documents submitted to INEC. On the issue of the status of the tax receipts and tax certificates presented by the Appellant and 2nd Respondent, I agree with the argument of learned Appellant’s counsel that the trial Judge not only acted without the benefit of the 2014 Guidelines, his lordship allowed the importation of the term “as at when due” into the Guidelines of the Appellant when there was no basis for that. All the Appellant required even from what 1st respondent’s counsel quoted was evidence of tax payment simpliciter. Appellant was satisfied with what was presented which the tax master C. J. Okoji confirmed emanated from the office of the Abia State Board of Internal revenue. Being a person whose tax liability is made by the PAYE system, there can really be no question as to whether or not he paid his taxes, as it is the responsibility of the revenue collecting authority to ensure deduction at source. Presentation of tax certificate under this scheme is a merely confirmatory. In any event both parties agree that the phrase “as at when due” does not exist in the 20 14 Guidelines.

The issue of payment of taxes by political parties had been settled in my view by the Supreme Court in Ukachukwu v. PDP supra. The Supreme Court upheld the portion of the judgment of this Court in that case which also adopted the reasoning of this Court in Lanto v. Wowo supra to hold that the burden is on the Plaintiff to prove nonpayment of tax. The systematic proof to be adduced by the Plaintiff would be as follows:

(a)The person earned taxable income during the period

(b)There was proper assessment of the taxable income during that period

(c) Notice of assessment was served on the tax payer

(d)The tax payer refused to pay within two months of being served with the notice of assessment.

As I said earlier, all the above goes to no issue in respect of a civil servant or public servant whose tax is deducted from source. Throughout the period in respect of the tax documents submitted by the 2nd Respondent, he was a civil servant or public officer depending on the status he acquired within Abia State government. His tax was deducted from source. The complaint by the 1st Respondent as he keeps on repeating in counsel’s address is not that the 2nd Respondent did not pay his tax but that the tax papers given to the 2nd Respondent by the Tax office in Abia State are false. I have looked closely at the reasons given by the learned trial judge to come to the conclusion that the tax documents were false and to throw out the accusation that the 2nd Respondent perjured himself in the affidavit attached to Form CF001 by asserting that the contents of the tax documents are correct. As I said earlier, the 2nd Respondent was a civil servant or public officer. His taxable income by way of Personal Income Tax would be determined by the Tax office in Abia State. He would be assessed by the tax office and the assessment would be given to his employers who would deduct same from source and pay to Abia State government. I do not think the learned trial Judge was right to find that in this case it was the 2nd Respondent who gave information about his taxable income to the tax office from where tax receipts were issued. That would have been a valid argument if there is proof that apart from his work as a civil servant or public officer, the 2nd Respondent had a viable business which he ran and from which he made income subject to the assessment and taxation. In that case, it would be his civic duty to give the correct information regarding his earnings to the tax office for the appropriate assessment. He would then be culpable for any falsehood contained in that information given to the tax authorities.

Let me give examples of the supposed false information contained in the tax receipts and documents given to the 2nd Respondents by the Abia State Tax Office which he submitted to the Appellant to meet with the requirements of the party for primary elections which the party then submitted along with the Form CF001 to INEC. The first false information found by the trial Judge is that the gross emoluments of the 2nd Respondent did not correspond to the five month period he worked for Abia State government. His Lordship refused to accept any explanation that he was assessed and taxed on his whole income for 2011. The second falsehood found was that the tax receipt in respect of 2011 had the date 31/12/11 and being Saturday the tax receipt was false. A look at the tax receipt shows that it indicated the last date of the taxable year but was issued on 4/7/14. It stands to reason that the taxable year ends on 31st of December whichever day it falls on is irrelevant. The 3rd false information is that one receipt number should have come before the other but the learned trial Judge was not prepared to accept the explanation of the tax authority on the matter. The 4th false information found is that the tax receipts for each were different from the tax clearance certificate issued for the said year. Also in this case attempts were made by affidavit evidence to show how the receipts were issued by the tax office, but the evidence was not considered because it came too late. The fifth false information found is the same complaint raised in the 4th false information found by the learned trial Judge. The 6th false information is also the same one raised in the 1st false information. The 7th false information is the general one that the tax documents were “unknown to law” and therefore could not have proved that the 2nd Respondent paid his tax in 2011, 2012 and 2013. The 8th false information is that because the 2nd Respondent went to the tax office to collect his tax clearance and receipts for the preceding years 2011, 2012 and 2013 on 4th July 2014, then he did not pay his taxes as at when due. This finding is unmindful of the fact that tax receipts and tax clearance can only be collected the following year. I looked at the documents. They showed each taxable year’s income, and the tax already deducted from source from the salary of a public officer. The documents were all issued on 4/7/14. The learned trial Judge was being economical with the truth by saying that the documents showed that the 2nd Respondent paid tax on 4/7/14 for the preceding three years. I have taken the pains to explain the findings of the learned trial Judge in order to ensure that it is not seen as if this Court swept the findings under the carpet under the excuse of technicalities. The findings were ridiculous and could not have been affirmed.

For example, at Pg. 1264 – 1265 of the supplementary record, and pg.79 – 80 of the actual judgment, the learned trial Judge held as follows:

“The amount in the 2013 tax receipt for 2013 should be the same amount in the column for 2013 tax in the tax 2nd Defendant submitted to the 3rd Defendant in his tax clearance certificate exhibit D.

In the 2nd Defendant attempts to show that the amount stated in the tax clearance for year 2013 is genuine and not false, he made reference to his exhibits OK4 and OKS and subparagraphs 11 and 12 of paragraph 3 of his further counter affidavit dated 16th March, 2016 to the effect that the amount in the sum of N75,017.76 shown in the 2013 column of tax clearance certificate is the sum total of taxes paid by him from his employment in two agencies in 2013 i.e. for Abia State Passengers Integrated Manifest and Safety Scheme and the other from Abia State Environmental Protection Agency. That according to the 2nd Defendant accounts for the receipt No.0012847 of 31st December, 2013 and receipt No.0012848 of 31st December, 2013.

My lords, if indeed it is true that the entry of personal income tax of the 2nd Defendant in the tax clearance certificate for 2013 represents payment of taxes by the 2nd Defendant when he served in two agencies in 2013, the 2nd Defendant ought to have made this explanation to Independent National Electoral commission when he filled and submitted Form CF001 to Independent National Electoral Commission.”

If the learned trial Judge cannot understand how civil servants express themselves in government format, it does not mean that the format is wrong. I looked at all the receipts in contention and even without looking at the explanation of Mr. Okoji, I did not see anything spectacularly irregular in them. If I go to the tax office next year for my tax receipts for 2016, on 18th June 2017 and the tax officer decides to put on the receipts the last day of 20 16 which is 31/12/16. The last date in this taxable year of our Lord 20 16 also happens to be a Saturday! Would that mean I did not pay tax? Why should I be blamed for the format regime of the tax authority? I agree with learned Appellant’s counsel that if a judicial officer, for instance a Federal High Court Judge who operates under PAYE system was required to present his tax clearance and receipts and she or he goes to the Federal Revenue Office to obtain receipt and clearance, lets for the purpose of argument without admitting say there are errors, inadequacies, improper serialization and where the date on the document is a Saturday, perhaps a Sunday, can it seriously be contended that the officer will not be entitled to the benefits which would accrue to him if the contention is whether he paid his tax or not? No doubt without a falsification of the documents in order to confer an undue advantage, all these shortcomings will be of no moment. I cannot see my way to agreeing that the tax documents submitted by the 2nd Respondent are irregular and ipso facto false. As I said earlier there was a lot of prevarication in the opinion of the learned trial Judge. It is either the documents are false of not. On Pg. 1254- 1255 of the records, the learned trial Judge held as follows:

“My lords, this is the moment of truth. My lords the issue in this matter has been narrowed down. My duty in this Judgment today is to look at form CF001sworn to by the 2nd Defendant and documents attached to therein (exhibit h) and determine whether any of the information contained in form CF001or any document submitted by the 2nd Defendant to 3rd Defendant is false then the Court shall issue an Order disqualifying the candidate from contesting the election. Put differently, My lords, the Court is enjoined by Section 31(5) of Electoral Act 2010 as amended to look at Plaintiff’s exhibits A to H ex facie and find out whether the information contained in the said documents submitted to INEC by the 1st and 2nd Defendants are correct or false.

In my humble view, this exercise stated above has nothing to do with forgery of these documents as alleged by the 1st, 2nd and 3rd . Defendants or making of false documents under the Criminal Code or Penal Code.”

On Pg. 1256 of the Record the learned trial Judge insisted that:

“…the issue before Court has nothing to do with forgery of the tax documents or any related criminal act or conduct.”

I say so because upon reading the judgment and as indicated above, the learned trial judge kept on saying the documents were false but there is no criminal falsehood in them. It’s just like saying €œI know the clothes you are wearing were not stolen by you, you did not borrow them. But I can see that they don’t fit you, therefore, they must be stolen. And I cannot accept any explanation as to why I think the clothes don’t fit you.”

In respect of the argument relating to whether the learned trial Judge was right to have granted the reliefs of the 1st Respondent pursuant to S. 31 (5) & ( 6) of the Electoral Act, I think the law in this regard is settled. The doctrine of “covering the field” as enunciated in AG. Abia v. AG. Federation (2001) 6 NWLR Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation supra, the Supreme Court was emphatic that the National Assembly CANNOT make laws with respect to the qualifications and non-qualifications of candidates for election into political office. This Court in ANPP v. Usman supra; Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 and IMMAM v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80 also followed that position. S. 31 (2) of the Electoral Act states as follows:

The list or information submitted by each candidate. shall be accompanied by an Affidavit sworn to by the candidate at the High Court of a State, indicating he has fulfilled all the constitutional requirements for lection into that office.

I agree with the position of the law as stated by learned Appellant’s counsel that by the express position of the law in S. 31 (2) of the Electoral Act as it relates to the affidavit to support the documentation of a candidate for election, the requirements must be within the narrow margin of “all constitutional requirements for election to that office.” The challenge in the originating summons regarding submitting false document in respect of payment of tax are squarely outside the requirements of the Constitution. One may express the sentiments that a tax evader should not be allowed to attain public office being an unpatriotic person, however, tax evasion IS a criminal offence which though heinous in my view cannot as the law stands ground a reason for disqualification until the person has been convicted for that offence. That is not even the situation here. There is no outright allegation of non-payment of tax but that the document in proof thereof are false and cannot be legally acceptable in proof of payment. Suffice it to say that the 2nd Respondent or the Appellant did not prepare the tax papers and non-payment of tax is not a constitutional requirement under S.177 of the Constitution. This issue is resolved in favour of the Appellant.

ISSUE THREE

Whether the learned trial Judge was right when he held that Or 27 r. 4 of . the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after Form CF001 to explain any misapprehension in the documents filed attached to the Form CF001. Learned senior counsel for the Appellant argued that the learned trial Judge tenaciously insisted that the Court would only consider documents submitted to INEC in conjunction with Form CF001 and that any other fact in form of any justification, correction, addition etc. different from what was submitted to INEC was false. On this point, learned senior counsel argued that the learned trial Judge did not allow the Appellant and 2nd Respondent the opportunity to establish

i) That the tax receipts and clearance certificate came from the appropriate authority and,

ii) That other documents from the same assessment authority explained the misconception of the Exhibits relied on by the Appellant.

Senior learned counsel further submitted that S. 128 of the evidence act allows extrinsic evidence to be used where the contents of the document are in dispute. Counsel said that the affidavit evidence of C. J. Okoji in Exh. OK 2 and OKS which were introduced to explain the tax document were ignored by the learned trial Judge. Counsel submitted that it is the duty of the judex to consider all evidence offered in proof or defence of a case as failure to do so will result in denial of fair hearing. Cited OLOWOLAGBA v. BAKARE (1998) 3 NWLR (PART 543) 528; (1998) 3 S.C. 41; UKPAI v. OKORO (1983) 2 SCNLR 380; ONIFADE v OLAYIWOLA (1990) 7 NWLR (PART 161) 130 AT 165.

Counsel also cited Dantata Jnr. V. Mohammed (2012) 14 NWLR Pt. 1319 Pg. 122.

Counsel submitted that the learned trial Judge was in breach of the right of the Appellant and 2nd Respondent to fair hearing. Counsel submitted that admissibility of a document is governed by its relevance and that the learned trial Judge did not give the rule of evidence or practice which barred him from considering any other document which did not accompany Form CF001. Counsel cited ACB Ltd. v. Gwagwada (1994) 5 NWLR Pt. 342 Pg. 25.

Learned counsel for the 1st Respondent argued in reply to this issue that the tax clearance certificates and tax receipts were received by the 2nd Respondent since 4/7/14 and between that time and 26/12/14 when he submitted them to INEC, he did not use his avalanche of degrees and academic qualifications to discover that there were irregularities in the tax documents in his possession. In paragraph 4.125, senior learned 1st Respondent’s counsel argued that The 2nd Respondent should have taken steps to remedy this problem by writing the Abia State Inland Revenue Service to rectify the said anomaly. If the said problems is unresolved before the said submission to INEC it is this step by the 2nd Respondent and the response by the Abia State Inland Revenue Service that should have accompanied 2nd Respondent’s purported Tax receipts for 2011, 2012, 2013 and the said Tax Clearance Certificate which he submitted to INEC.

Counsel insisted that the tax documents should have been explained within the framework of the documents attached to INEC Form CF001submitted to INEC. Counsel argued that the 2nd Respondent should have attached his monthly pay slip to show the requisite deduction from source.

OPINION

At Pg. 1240 – 1243 of the Record, the learned trial Judge held the view that in accordance with Or 3 r 9 (2) (a) & (b) and Or 13 r 35(15) and Or 13 r 6(1) of the Federal High Court Rules 2009, after the Defendant is served with originating summons, he has 14 days to file counter-affidavit and the Plaintiff has 14 days to file reply affidavit. The trial Judge held that no party can file any other process without leave of Court and such other process must be ignored by the Court. In concluding his opinion on this point, the learned trial Judge opined that since both parties had engaged in this improper exercise of filing extra further affidavit, and parties had not joined issues on it, he would leave the issue as it was. Presumably, he would consider all the processes filed before him to which there had been no objection. Even though learned trial Judge set out the similar contents of Exh. PDP 1 and PDP 2 in the judgment on Pg. 1233 – 1240 of the Records, his Lordship did not consider them to be a good defence to the allegation levelled against the 2nd Respondent because they were depositions made after the filing of Form CF001 and should not be considered. Exh. PDP 2 was deposed to by James Okoji, Director of Direct Taxes in Abia State Internal Revenue Service. The learned trial Judge refused to evaluate it as against the allegations .of irregularities pointed out by the 1st Respondent which he accepted hook, line and sinker. The trial Judge in one breath stated that the Exhibits were not for his consideration. Yet he still stated that the documents which were not considered by him were afterthought. One would have imagined that the documents can only be ruled as afterthought if their contents were examined and found to be forged, false, irrelevant orincredible. I agree with the Appellant that in the absence of a consideration of the contents of the documents, it would amount to a deliberate avoidance of the implication of their contents to label them as mere afterthought. This further compounds the denial of the Appellant and the 2nd Respondent of their rights to be heard in their defence.

The learned trial Judge held as follows on pg. 1268 of the record

“The 2nd Defendant is bound by the documents that he submitted to Independent National Electoral Commission. He cannot be allowed to use extraneous documents not forming part of the documents he submitted to Independent National Electoral Commission earlier to establish that the facts contained in A, B, C, D and H are correct, true and genuine.”

Several affidavit evidence e.g. PDP1 and PDP 2 were acknowledged as having been filed by the Appellant to rebut the allegations in the originating summons, but the Court was not prepared to consider and evaluate them to weigh them on the scale of Justice. Surely failure to evaluate the evidence of both parties in order to arrive at a just finding of fact leads to miscarriage of Justice. In BABA V. CIVIL AVIATION (1991) 5 NWLR PT. 192 PG. 388 the Supreme Court held that the Court must hear both sides of a dispute and give equal treatment and consideration to all material issues in the case before reaching a conclusion that may be prejudicial to a party. See also VICTINO FIXED ODDS LTD. V. JOSEPH OJO (2010) 8 NWLR PT.1197 PG. 486. I cannot find merit in the refusal of His Lordship to evaluate the evidence of the adverse party in the circumstances of this case. In my humble view, His Lordship committed great violence against one of the twin pillars of the temple of Justice which is – audi alteram partem. If he had considered the other side of the case, probably some of the obvious faux pas he made in the judgment regarding what happens at the tax office or how the tax office issue their receipts and clearances would not have occurred. Indeed, Justice has not been served by the failure of the learned trial Judge to consider the case of the other side. This issue is resolved in favour of the Appellant.

ISSUE FOUR

Whether the learned Judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs in the judgment.

Learned Appellant’s counsel argued that the trial Judge did not follow the path already laid by the decisions of the Superior Courts. He indeed charted a new course and declared as Governor of a State, a person who did not exhibit compliance with Section 177 of the Constitution of the federation and who was not nominated by members of the electorate within the constituency.

Leaned Appellant counsel argued that the present case is a departure from the foregoing cases where a person who scored 103 votes at primaries was ordered to be given the certificate of return by INEC as against the candidate who score 487 votes at the primaries of the party. Counsel argued that if the Election Tribunal had nullified the election of the Governor, on the grounds of nonqualification, a fresh election would be ordered by INEC pursuant to S. 140(2) of the Electoral Act. Senior counsel cited Chukwu v. Igwe (1988) 4 NWLR Pt. 90 Pg. 609; C.P.C. v. Ombugadu (2013) 18 NWLR Pt. 1385. See KOLAWOLE v. FOLUSHO (2009) 8 NWLR (PT. 1143) 338; (U.N.C.P. v. D.P.N. (1998) 8 NWLR (PT. 560) 90; MELE v. NOHAMMED (1999) 3 NWLR (PT. 595) 425. Learned 1st Respondent counsel in response to the above argued that the Supreme Court had ordered that a party who emerges victorious in pre-election matter be issued Certificate of Return. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE v. INEC (2014) 18 NWLR (PT. 1438) 56; JEV V. IYORTOM (2014) 14 (PT. 183) 505. The fact of conduct of an election, does not extinguish the right of a person in a pre-election matter as a preelection cause continues even after the conduct of an election. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE V. INEC (2014) NWLR (PT. 1438) 56 AT 102, PARAS. D – E, 117, PARAS. B – E, 129 – 130. PARAS. H – C; 138, PARAS. C – D; ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 554; NOBISELENDU V. INEC (2015) 16 NWLR (PT. 1485) 197; NWAZURIKE V. NWACHUKWU (2013) 3 NWLR (PT. 1342) 502 AT 522, PARA. E.

Learned counsel argued that the present position of the law is a stated by the Supreme Court in Agbaje v. INEC (2016) 4 NWLR Pt.1501 Pg. 151 at 165- 166.

OPINION

The Appellant had asked this Court to set aside the judgment and orders of the trial Court. The said judgment and orders are as set out below on Pg130 1 – 1306 of the record

1. It is hereby declared that Dr. Okezie Ikpeazu the 2nd Defendant herein was not eligible not qualified to be nominated or participate in the gubernatorial primary election for Abia state conducted by the People’s Democratic Party and her officers on 8th December, 2014 which the Plaintiff, the 2nd and others participated.
2. It is hereby declared that Dr. Okezie Ikpeazu not being qualified to be nominate or participate or take part on the Peoples’ Democratic Party Gubernatorial party’s primary election on 8th December, 2014 is not the aspirant scored in law and facts the highest number of votes in the Peoples’ Democratic Party primary election conducted pursuant to Section 87(4)() I and II of the Electoral Act 2010 as amended and part I Article 14(a) of the Peoples’ Democratic Party’s Electoral Guidelines 2014.
3. It is declare that the votes alleged scored by Dr. Okezie Ikpeazu in the Peoples’ Democratic Party primary election for aspirants to the gubernatorial election in Abia State on 8th December, 2014 are wasted votes, null and void and none of the Defendants is entitle to act on the scores credited to Dr. Okezie Ikpeazu based on the said Peoples’ Democratic Party primary election which Dr. Okezie abinitio is not qualified to be nominated or participate in the said primary election.
4. An Order is herby made declaring the Plaintiff Dr. Sampson Uchechukwu Ogah as the aspirant in the Peoples’ Democratic Party primary election conducted by the Peoples’ Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of valid votes cast in the Peoples’ Democratic Party’s primary election in which the Plaintiff Dr. Okezie Ikpeazu and others participated as aspirants pursuant to Section 87(4)() I and II of the Electoral Act and Article 14(a) of Peoples’ Democratic Party Electoral Guidelines for 2014.
5. It is hereby Ordered that the Plaintiff being the aspirant that scored the highest number of lawful votes in the Peoples’ Democratic Party primary election for gubernatorial candidate in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitle to be nominated as candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State for the 2015 general election scheduled to take place on 11th April, 2015 pursuant to Section 87(4)() I and II of the Electoral Act 2010 and amended and Article 14(a) of the Peoples’ Democratic Party electoral Guidelines 2014.
6. An Order is hereby made pursuant to Section 87(4) b(1) and (II) of the Electoral Act 2010 as amended and Article 14(a) of the Peoples’ Democratic Party Electoral Guidelines 2014 for the 1st Defendant herein Peoples’ Democratic Party to submit the name of the Plaintiff to the 3rd Defendant as the gubernatorial candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State in the 2015 general election scheduled for 11th April, 2015 and for the 3rd Defendant Independent National Electoral Commission to accept the name of the Plaintiff as the candidate of the Peoples’ Democratic Party for the2015 gubernatorial election in Abia State.
7. An Order is hereby made mandating the 3rd Defendant pursuant to Section 87 (4) (I) and (II) of the Electoral Act 2010 as amended to publish the name of the Plaintiff as the candidate of Peoples’ Democratic Party so for the gubernatorial election for Abia State in the general election f”lxed for 11th April, 2015.
8. It is hereby declared that the information supplied by Dr. Okezie Ikpeazu the 2nd Defendant herein in For, CF001 as sworn by him in the aff”ldavit accompanied with other documents submitted to Independent National Electoral Commission by him pursuant to Section 31 (2) of Electoral Act as amended are false.
9. An Order is hereby made disqualifying the 2nd Defendant from contesting the gubernatorial election in Abia State as the candidate of the Peoples’ Democratic Party.
10. An Order is hereby made directing the 1st and 3rd Defendant to replace or forward the name of the Plaintiff as the candidate of Peoples’ Democratic Party returned in the governorship election for Abia State.
11. It is hereby declared that at all material times since the conduct of Peoples’ Democratic Party primary election on 9th December, 2014 till today the date of delivery of the judgment of this Court, the Plaintiff remained and still remains the candidate of the Peoples’ Democratic Party in the 2015 Governorship election in Abia State.

Thereafter the learned trial Judge made some consequential orders as follows:

“A consequential Order is hereby made to give effect to the judgment that the Plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitle to the certificate of return in the election for the office of Governorship of Abia State of Nigeria for the election held on 11th April, 2015.

It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3rd Defendant herein shall forthwith issue certificate of return to the Plaintiff, Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlements to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State.”

From my earlier considerations and resolution of the contentious issues, I have to say that there is no iota of justification in law and in fact for these orders made by the learned trial Judge. The learned trial Judge cited some examples of previous decisions of the Supreme Court to justify the reliefs he granted to the 1st Respondent. The learned senior counsel for the Appellant went to great pains to set out what actually happened in those cases and I agree with him. The conclusions in those cases are set out below:

i. In OBI V. INEC (2007) 11 NWLR (PART 1046) 645, Mr. Obi was already a serving Governor who despite the fact that his tenure was yet to expire, INEC conducted an election and issued a Certificate of Return to another who was subsequently sworn in as governor. The Court by a consequential Order restored Mr. Obi to his office.

In GWEDE V. INEC (2014) 18 NWLR (PART 1438) 56, the 2nd Respondent won the primary election but then withdrew formally in writing. Appellant was substituted by PDP and filed his nomination papers, thereupon INEC published his name. He contested the election but INEC issued the 2nd Respondent who did not contest the election with a Certificate of Return. The Supreme Court restored the Appellant who was duly nominated and filled all nomination forms and was published as a nominated candidate by INEC.

iii. In GBILIVE V. ADDINGI (2014) 16 NWLR (PART 1433) 394, the 1st Respondent won the primary election conducted by the National Executive of the party and was nominated. The State faction of the party, however, forwarded the name of the Appellant who was issued with a Certificate of Return. The Supreme Court restored the candidate sponsored by the National Executive and who won the primary and was duly nominated.

iv. In ODEDO V. INEC (2008 19 NWLR (PART 1117) 554, the Appellant was duly nominated and filed the necessary papers, another person Obinna Chidoka was substituted, contested and won the election. The Supreme Court ruled the substitution unlawful and restored the Appellant.

v. In AMAECHI V. INEC (2008) 3. NWLR (PART 1080) 227, the facts were similar to ODEDO V. INEC (SUPRA).

vi. In JEV V. IYORTOM (2014) 14 NWLR (PART 1483) 484, the eventual winner of the appeal at the Supreme Court was indeed the winner at the primary election but his name was not published by INEC.

The fact of this case cannot justify the orders made by the learned trial Judge. The second Respondent in this case won the primaries and was adjudged winner of the general election by the Supreme Court.

In the circumstances, having found the issues raised by both parties in this appeal to be resolved in favour of the Appellant, I find merit in this appeal and it is hereby allowed. The judgment of Hon. Justice Okon Abang delivered on 2716116 1n suit No.FHC/ABJ/CS/71/2016 is here by set aside. The orders therein are also set aside. Costs of N100,000.00 in favour of the Appellant against the 1st respondent. Appeal Allowed.

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Other Citations: (2016)LCN/8979(CA)