Legalpedia Citation: (2023-12) Legalpedia 57254 (CA)

In the Court of Appeal

Holden At Abuja

Thu Dec 21, 2023

Suit Number: CA/E/EP/SHA/EN/44/2023

CORAM

Mohammed Mustapha Justice, Court of Appeal

Mohammed Danjuma Justice, Court of Appeal

Lateef Adebayo Ganiyu Justice, Court of Appeal

PARTIES

1. MBAH GEOFFERY ANAYO
2. PEOPLES DEMOCTRATIC PARTY

APPELLANTS

1. EZE IGNATIUS OSITA
2. LABOUR PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

On 18th of March, 2023 and 15th of April, 2023, the 3rd Respondent conducted an election into the seat of the House of Assembly for the Orji River State Constituency. At the conclusion of the election, the 3rd Respondent returned the 1st Respondent who contested the election under the platform of the 2nd Respondent as the winner thereof with 7,961 votes. From the official result declared by the 3rd Respondent, the 1st Appellant (1st petitioner at the Tribunal) who contested under the platform of the 2nd Appellant was the 1st runner-up with 7,028 votes. From the official result declared by the 3rd Respondent, the margin of lead between the 1st Appellant and the 1st Respondent is 933 votes.

The Appellants (Petitioners at the Tribunal) being dissatisfied with the outcome of the election, initiated a petition against the Respondents on the 5th day of May, 2023 on the grounds that the 1st Respondent was at the time of the election not qualified to contest the election and did not score a majority of the valid votes at the election. They also contested that the election was not conducted in compliance with the provisions of the Electoral Act, 2022.

The Tribunal dismissed the petition. Dissatisfied with the said judgment, the Appellants (Petitioners at the Tribunal) filed the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the Tribunal was right when they failed to resolve the issue of competence of the processes of the 3rd Respondent as validly raised by the Appellants and went ahead to countenance the said processes of the 3rd Respondent and its witness?
2. Whether the Tribunal was right in holding that the Appellants lacked the locus standi to raise the issue of qualification of the 1st Respondent?
3. Whether the Tribunal appreciated the case of the Appellants in their finding and conclusion?
4. Whether the Tribunal was right in their evaluation of the evidence of all the parties and in ascribing probative value to all the documents tendered by the parties in their resolution of both issues one and two?

RATIONES DECIDENDI

APPEAL – THE MEANING OF AN APPEAL – CONDUCT OF PARTIES TO AN APPEAL

An appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. An appeal, being a judicial examination by a higher Court of the decision of the inferior Court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior Court for decision. – Per Mohammed Danjuma, JCA

ISSUES – DUTY OF PARTIES IN PRESENTING THEIR CASES BEFORE A COUR

In the case of BPE V. DANGOTE CEMENT PLC (SUPRA), it was held that whereas a Court or Tribunal is bound to resolve all issues before it, such issues must be properly presented to the Court or Tribunal before it can be bound to decide on them.

Also, in the case of AGHEDO V. ADENOMO (2018) 13 NWLR (PT. 1636) 264 SC; it was held that for a Court to be bound to consider an issue, such an issue must be properly raised and canvassed before it by parties. – Per Mohammed Danjuma, JCA

PRELIMINARY OBJECTION – WHEN A PRELIMINARY OBJECTION IS NOT SUPPORTED BY THE PLACING OF FACTS

The preliminary objection of the petitioners not being supported by the placing of facts, same cannot be countered by the responding parties. As held in the case of MAJOR CONCEPT LTD & ANOR V. EZE (SUPRA):

“How can one file a counter affidavit when there is no affidavit for it to counter?

“It is elementary that a counter affidavit is an affidavit made and presented in contradicted or opposition to an affidavit which is made on the basis or in support of a motion or application or otherwise”. – Per Mohammed Danjuma, JCA

NOMINATION OR MEMBERSHIP OF A POLITICAL PARTY – CONDUCT OF COURTS TO THE ISSUES OF NOMIANTION AND/OR MEMBERSHIP OF A POLITICAL PARTY

The issue of nomination of candidate and/or membership of a political party has been laid to rest and need not be dwelt upon much. In the recent case of OLI V. INEC (2023) 14 NWLR (Pt. 1903) 65, the Supreme Court relying on its earlier principle in DANIEL V. INEC (2015) 9 NWLR (Pt. 1463) 113, held thus:

“The Court has made the position abundantly clear that it is not within the jurisdiction of the Court to dictate or determine who a political party should sponsor for an election as the issue of nomination and sponsorship of candidates are matters within the domestic affairs of the party”.

See also the case of ODEDO V. OGUEBEGO(2015) 13 NWLR (Pt. 1476) 229 AT 271 Paras. C-E. – Per Mohammed Danjuma, JCA

POLITICAL PARTY – WHETHER COURTS CAN DECIDE ON MATTERS TOUCHING THE NOMINATION AND/OR NOMINATION OF CANDIDATES OF POLITICAL PARTIES

The issue of who a political party nominates and sponsor as its candidate for an election is an internal affair of the political party and it is not justiciable. See the issue of UFOMBA V. INEC & ORS (2017) LPELR-42079 (SC). – Per Mohammed Danjuma, JCA

EVALUATION OF EVIDENCE – WHERE EVALUATION OF EVIDENCE IS PROPERLY DONE BY THE TRIAL COURT OR TRIBUNAL

It is trite law that the evaluation of evidence and the ascription of probative value to it are primarily within the precincts of the trial Court or Tribunal and not of this Court. In the case of EZEANUA V. ONYEMA (SUPRA), this Court held thus:

“Where evaluation of evidence is properly done by the trial Court or Tribunal, an appellate Court cannot re-evaluate it acting under Section 15 of the Court of Appeal Act, 2004. This is because the evaluation of evidence and the ascription of probative value to it are primarily within the precincts of the trial Court or Tribunal which had the opportunity of seeing, hearing and watching the behaviour of the witness testifying before it”. – Per Mohammed Danjuma, JCA

ASSESSMENT OF EVIDENCE – WHERE THE ASSESSMENT OF EVIDENCE AND ASCRIPTON OF PROBATIVE VALUE IS CARRIED OUT BY A TRIAL COURT OR TRIBUNAL

In my view, the assessment of evidence of parties in this petition and ascription of probative value to each of them was diligently and painstakingly done by the trial Tribunal and therefore did not in any way occasion a miscarriage of justice. Thus, this Court lacks the requisite jurisdiction to interfere in the absence of special and/or exceptional circumstances. In the case of ADELEKE V. OYETOLA (SUPRA), the Supreme Court held thus:

“Appraisal of oral evidence and ascribing of probative value of such evidence is the primary duty of a Tribunal of trial and the essence is that a Tribunal or trial that has the opportunity of hearing and assessing the evidence and demeanour of witnesses. Where assessment of evidence and ascription of probative value to such evidence is carried out by a tribunal or trial, an appellate Court has no jurisdiction to interfere, in the absence of special and/or exceptional circumstances. In this instant case, Obiora, J. as a member of the Panel of the tribunal that heard witnesses, including RW12 and RW13, was very much competent to assess the testimonies of all the witnesses and ascribe probative value to such evidence. The assessment and ascription of probative value to the testimonies of RW12 and RW13 by Obiora, J did not occasion a miscarriage of justice to the Respondents”. – Per Mohammed Danjuma, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022

3 Evidence Act, 2011

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