Terver Kakih V. Peoples Democratic Party & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the Judgment of the Court of Appeal Makurdi Division in appeal No.CA/MK/158/2012 delivered on 5/3/2013 affirming the judgment of the Federal High Court Makurdi Division delivered on 11/7/2012. For convenience and easy reference, I shall hereinafter, in the course of my consideration of this appeal, refer to the Court of Appeal and the Federal High Court as “the Court below” and “the Court of first instance” or “trial court” respectively.

The appellant herein, as plaintiff before the trial court challenged, inter alia, the conduct of the 1st respondent’s primary election of its flag bearer for the Gubernatorial Election in Benue State held on 9/1/2011 and the qualification of the 4th Respondent to contest the said election. The appellant claimed both declaratory and injunctive reliefs in paragraph 51 of his statement of claim. In the main, the appellant alleged that the primaries were not conducted in accordance with the provisions of the Electoral Act 2010 (as amended), the Constitution of 1st respondent and its Electoral Guidelines. He also alleged that the 4th respondent presented a forged certificate to the 1st and 2nd respondents and therefore perjured in his INEC FORM CF001.

Processes were filed and exchanged in accordance with the Rules of the court of first instance. It is worthy of note that out of the 18 reliefs sought by the appellant in that court reliefs (i)-(v) are the principal reliefs and are based on the complaint as to the non-conduct of Ward Congresses for the election for the three(3) Ad Hoc delegates and alleged irregularity in the conduct of special state congresses. Whilst reliefs (xi) – (xvii) are ALTERNATIVE RELIEFS and are based on the allegation that the 4th respondent presented a forged Certificate and lied on Oath and is therefore disqualified or ought to have been disqualified from contesting the Gubernatorial Election. No principal relief was sought against the 2nd and 3rd respondents as Agency of the Federal Government.

The 1st and 4th respondents in defence, by the order of the trial court on 24/1/2012, filed their joint statement defence wherein they denied all the claims of the appellant.

Also on their part the 2nd and 3rd respondents filed their statement of defence.

At the close of pleadings, when hearing commenced appellant testified for himself as PW9 and called 9 other witnesses and tendered Exhibits A, B, C, D, E, F, G – I – G 10. Although Exhibits I, J and K were admitted in evidence by the learned trial Judge, after same were produced vide subpoena duces tecum, at the instance of the appellant, they were later expunged from the record at the point of writing judgment for failing the test of admissibility.

At the close of appellant’s case, the 1st and 4th respondents, on application sought the leave of the trial court to call additional evidence. Appellant however, opposed the application vide a counter affidavit and a written address pursuant to order of trial court made on 3/5/2012. The 1st and 4th respondents called one witness (DW1) and tendered Exhibits L, M, and N.

It is worth noting that among the witnesses called by the appellant only 3 witnesses gave evidence pertaining to non-conduct of Ward Congresses. I have also observed that the 2nd and 3rd respondents did not call any witness.

At the conclusion of trial final written addresses were filed and exchanged. The 1st and 4th respondents in their final addresses raised issue of jurisdiction relying on the case of P.D.P v. SYLVA (2012) 13 NWLR (Pt.1316) 85.

On the 15/6/2012 learned counsel adopted their respective addresses and proffered further adumbration in support.

On 11/7/2012 delivering his judgment, the learned trial judge upheld the 1st and 4th respondents’ objection to the court’s jurisdiction to hear and determine appellant’s claim. The judge in his further findings held that there was no evidence in support of the claims of the appellant and same were dismissed in their entirety.

Aggrieved by the decision of the trial Court appellant appealed to the Court of Appeal Makurdi Division, which affirmed the judgment of the trial court and accordingly dismissed the appeal.

This is further appeal by the appellant who is dissatisfied with the judgment of the court below. In his Amended Notice of appeal 15 grounds of appeal are set out, out of which 11 issues were distilled in the brief of argument settled and filed by his counsel SAM KARGO Esq. on 23/7/2013 as follows: