APC V. JEGA (2023-LCER-48014-SC)

FACTS

The case of the Appellant is that it conducted its primary election on 27/5/2022 for the House of Representatives or Aliero/Gwandu/Jega Federal Constituency of Kebbi State scheduled to hold on 25/2/2023, wherein the 1^st and 2^nd Respondents participated and the 2^nd Respondent polled the highest votes of 149 while the 1^st Respondent got 6 votes and the 2^nd Respondent was declared the winner and his name was submitted to the 3^rd Respondent.

The case of the 1^st Respondent however is that he won the primary election that held on 27/5/2022 conducted by the National Working Committee of the Appellant but to his discovery, it was the name of the 2^nd Respondent that was published by the 3^rd Respondent as the candidate of the Appellant instated of his name. That the primary election that produced the 2^nd Respondent was conducted similarly on 27/5/2022 by the State Electoral Committee of Kebbi State. Thus, vide an Originating Summons filed on 29/6/2022, the 1^st Respondent challenged the submission/forwarding and publication of the name of the 2^nd Respondent by the Appellant as its candidate to the 3^rd Respondent. The trial court dismissed the case of the 1^st Respondent. On appeal, the lower court however set aside the decision of the trial court, hence this appeal.

ISSUES

1. Whether the court below was right when it held that grounds 1, 2, 3, 6, 7, 8, 8, 9, 10, 11, and 12 of the grounds of appeal filed by the 1^st Respondent at the lower court are competent.

2. Whether the lower court was correct when it held that the suit filed by the 1^st Respondent at the trial court does not constitute abuse of court process.

3. Whether the lower court violated the right of the Appellant to fair hearing in the determination of the appeal filed by the 1^st Respondent at the lower court.

4. Whether having regard to the circumstances of this case, the lower Court correctly evaluated and reviewed the case of the parties before allowing the appeal of the 1^st Respondent fled at the lower court.

HELD

The lower court has painstakingly and correctly evaluated the case of the parties before coming to the conclusion that the 1st Respondent, and not the 2^nd Respondent, won the said primary election conducted on 27/5/2022.

This issue is also resolved in favour of the 1^st Respondent. Accordingly, the appeal lacks in merit, fails and is hereby dismissed. The judgment of the lower court is affirmed. Parties are to bear their own costs.

As agreed by the parties and their respective counsel that appeal No. SC/CV/1479/2022 shall abide the decision in this appeal. Consequently appeal No. SC/CV/1479/2022 is also dismissed.

APPEARANCES:

HABEEB A. OREDOLA, ESQ, for the Appellant; with him, A.G. MATTI, ESQ and JENNIFER ADOLE, ESQ.

SARAFA YUSUF, ESQ, for the 1^st Respondent; with him, AHMED MOHAMMED JEGA, ESQ, TRACY O. UKPEBOR, ESQ and ABDULHAKAM ADAMU, ESQ.

IBRAHIM ABDULLAHI, SAN; with him, SHAMSU A. DAUDU, ESQ, for the 2^nd Respondent.

3^rd Respondent served, but absent and unrepresented.

RATIOS

APPEAL: Grounds of Appeal – Whether grounds of appeal can be rendered incompetent for verbosity, in elegance and vagueness – Duty of the court to do substantive justice “Contained at pages 952-968 of the record are the said grounds of appeal with their particulars complained by the Appellant to be “vague, argumentative, narrative”. It is apparent and obvious that some of the grounds and particulars of appeal appear windy and narrative because of the excerpts and quotations of some parts of the judgment of the trial court carried out by the 1^st Respondent as his grounds and particulars of the appeal. Nevertheless, do all these constitute incompetence of grounds and particulars of appeal? Per PETER-ODILI, JSC, in WAZIRI & ANOR V. GEIDAM & ORSs (2016) LPELR-40660(SC) (PP. 17-19 PARAS. A) held: That said, I would not leave it unsaid that clearly perusing the said particulars of the said Ground 2, there is verbosity, inelegance, even a degree of untidiness not to talk of a showcase of repetitiveness leading to their being properly classified as argumentative. However, such presentations cannot be used for punitive measure of a striking out of the Ground 2 as it would mean visiting the error or inelegance of counsel on a hapless litigant. Even when, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Hence, bad or defective particulars in ground of appeal would not, necessarily render the ground itself incompetent. Furthermore, in DAKOLO V DAKOLO (2011) 16 NWLR (PR. 1272) 22 AT 53, Adekeye, JSC, stated the position of the Court thus: Grounds of appeal are to be differentiated from their particulars. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court… the principal duty of the Court is to do justice. The grounds of appeal and the particulars in the instant appeal might appear to be argumentative and repetitive; they equally raised triable issues, which would sustain the appeal. The Supreme Court will always make the best that it can, out of a bad or inelegant ground or brief, in the interest of justice. In the instant case although, the grounds were inelegantly couched and prolix, the substances of the Appellants’ complaints were clear, and were against the ratio of the judgment of the Court of Appeal”. See DAKOLO & ORS V. DAKOLO & ORS (2011) LPELR 915; (2011) 16 NWLR (PT.1272) 22. Similarly, Nweze JSC had in OMISORE V AREGBESOLA (2015) 15 NWLR (PT.1482) 205 at 257stated thus: The answer to the objectors’ invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prescribed by the rules of this Court that would render such as incompetent. That is, particularly so where sufficient particulars, can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars in which the grounds are founded” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 8 – 12; Paras. B- A.

APPEAL: Issues for Determination – Power and discretion of the court to formulate or reframe issues for determination – When a judge may be accused of raising issue(s) Suo Moto “On the inappropriateness of the lower court to formulate the issue “Whether the trial court was right when it held that there was a conflicting presumption in favour of Exhibit 10 and Exhibit APC2 which the court resolved in favour of Exhibit APC2” as its issue 3, it must be noted that the court has the power, and discretion to formulate or frame issues and cannot be said to do so suo motu. A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal.” See Per TOBI, JSC, in ENEKWE V. INT’L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR- 1140(SC) (PP. 25 PARAS. A).” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 21 – 22; Paras. D-E.

APPEAL: Omnibus ground of appeal – Whether or not a relevant sole omnibus ground of appeal can sustain an appeal “I have particularly gone through the grounds and particulars of the 1^st Respondent’s Notice of Appeal complained of and none appears to me to be so bad, defective and invalid to be severed or ripped off and even more to render them incompetent. Even in the worst case and for substantial justice, an omnibus ground of appeal that is relevant and connected can sustain an appeal. See LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) AT 482 PARA A.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ P. 12; Paras. D- G.

ELECTORAL MATTERS: Conduct of primary election – Superiority of Primary Election conducted by the National Executive Committee of a party over primary election conducted by State Executive Committee “It is a contested fact that two parallel primary elections held that produced the 1^st Respondent and the 2^nd Respondent. In resolving this, the lower court found out that the 1^st Respondent was the one that won the election having been conducted by the National Working Committee of the Appellant while the 2^nd Respondent won the primary election conducted by the Kebbi State Electoral Committee of the Appellant, This, court, Per NGWUTA, JSC, in YARDUA & ORS V. YANDOMA & ORS (2014 LPELR-24217(SC) (PP. 82-83 PARAS. B), held: The primary elections from which the party’s candidates emerge are conducted by the National Executive Committee of the party. As often happens, there may be a parallel primaries conducted by the State Executive Committee of the political party…in the case of nomination for the membership of the National or State Assembly…If there are two parallel primary elections, as in the cases from which these appeals arose, only a person who took part in the primary elections conducted by the National Executive Committee of the party is an aspirant… Anyone who takes part in the primary election conducted by a State organ of the party is not an aspirant and cannot approach the Court for redress for he has no locus standi to ask for redress.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 31 – 32; Paras. B- D.

EVIDENCE: Documentary Evidence – Conflicting Documents – Duty of the court to weigh two conflicting document to see which one has more probative value “When two documents are conflicting or disputed, the court must weigh to see which one has more probative value than the other before preferring one against the other in the absence of calling oral evidence. Placing Exhibit 10 side by side with Exhibit APC2, the lower court preferred Exhibit 10 above Exhibit APC2. In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the court. This is because where, for example, the conflicts in affidavits are not material to the case before the court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the court, the need to call oral evidence to resolve the conflicts would not arise.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 29 – 30; Paras. G- E.

EVIDENCE: Presumptions – Presumption of regularity and correctness in favour of a document “It is no doubt on record that Exhibit 10 was issued to the 1^st Respondent by the National Election Committee bearing the name and signature of the of the members off the said Committee on the letter headed paper of the Appellant as required by section 26 (1) of the Guidelines for the Nomination of Candidates for the 2023 general Elections issued by the Appellant. There is obviously a presumption of regularity and correctness in respect of Exhibit 10 above Exhibit APC 2. In ONDO STATE UNIVERSITY & ANOR V. FOLAYAN (1994) LPELR- 2673(SC) (PP. 34 PARAS. E), this Court, Per UWAIS, J.S.C, held that “there is a presumption of regularity when an official act is shown to have been done in a manner consistent with the procedure laid down or where the officer performing the function did so in a public capacity”.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 28 – 29; Paras. C- A.

PLEADINGS: Uncontroverted or undenied facts – Whether facts or depositions not specifically controverted can be properly deemed admitted “In the instant case, the allegation came from the Appellant but was countered by the 1^st Respondent when he deposed at pages 833-835 that: (b). The purported Writ of Summons referred to as Exhibit PO 1 was never issued by this Honourable Court nor served on any party, having been withdrawn by me before issuance. (e). That to the best of my knowledge, there is only one suit with suit No. FHC/KB/CS/22/2022 before this Honourable Court and it is the Originating Summons. 6. In response to… I state that I filed this Originating Summons No. FHC/KB/CS/22/2022 in accordance with the Practice Directions. The above deposition was not controverted or specifically denied and it is trite to be admitted and established. Every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Per IGUH, J.S.C, in OSHOD & ORS V. EYIFUNMI & ANOR (2000) LPELR- 2805(SC) (PP. 55 PARAS. C).” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 16 – 17; Paras. B- D.

PRACTICE AND PROCEDURE: Abuse of court process – Seriousness of allegation of abuse of court process – Duty of the party alleging abuse of process to prove “The allegation of abuse of court process is a serious one that may necessitate the striking out of a court process if found to be so. Thus, it cannot be speculated upon but ought to come by strong evidential or documentary proof for the court to be convinced. The facts constituting the abuse must be brought before the Court by way of affidavit and documentary evidence.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 15 – 16; Paras. F-B.

PRACTICE AND PROCEDURE: Abuse of court process – What constitutes abuse of court process “Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that is protested against, rather it is the manner of exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding, which is lacking in bona fide. It has a sting of malice. It is trite that a party complaining about abuse of Court process must go further to establish that the suits were motivated mala fide. See CENTRAL BANK OF NIGERIA V. AHMED (2001) 11 NWLR (PT.724) 369, AMAEFULE V STATE (1988) 2 NWLR (PT 75) 156, particularly Per OKORO, JSC, in NWEKE V. FRN (2019) LPELR-46946 (SC) (Pp. 22-25 PARAS. E-E).” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & 2 ORS (2023-LCER-48015-SC) @ Pp. 20 – 21; Paras. E – C.

PRACTICE AND PROCEDURE: Abuse of court process – Whether mere filing of two processes without serving both on a party constitutes an abuse of court process “Having withdrawn the Writ of Summons, which the Appellant was never served with, what abuse of court process, is the Appellant still holding unto? Can there be established or proved that the 1^st Respondent took out two similar processes against the Appellant malafide? What malefaction, abuse or irritation has the Appellant suffered and how? The lower court was right to find that there was no abuse of court process against the Appellant.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ P. 19; Paras. A-C.

PRACTICE AND PROCEDURE: Notice of withdrawal or discontinuance – Whether filing of notice of withdrawal or discontinuation of an action is discretional or necessary at the Federal High Court – Time allowed for withdrawal with leave of court “By Order 50 Rules 2(1) and 3(1) respectively of the Federal High Court (Civil Procedure) Rules, 2019, the filing of Notice of Withdrawal or Discontinuance of action is not a desideratum or necessity. It provides: (1) The plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all the defendants at any time not later than fourteen days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned. (1) Except as provided by rule 2 of this order, a party may not discontinue any action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, a id the court hearing an application for the grant of the leave may order the action or counter claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just. In fact, discontinuance is allowed without the leave of court not later than 14 days after service.” Per UWANI MUSA ABBA AJI, JSC in APC V. JEGA & ORS (2023-LCER-48014-SC) @ Pp. 17 – 18; Paras. E – D.

FULL JUDGMENT

IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY, THE 20^TH DAY OF JANUARY, 2023

BEFORE THEIR LORDSHIPS

KUDERAT MOT0MORI OLATOKUNBO KEKERE-EKUN JUSTICE, SUPREME COURT

UWANI MUSA ABBA AJI JUSTICE, SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE, SUPREME COURT

ADAMU JAURO JUSTICE, SUPREME COURT

SC/CV/1478/2022

BETWEEN

ALL PROGRESSIVES CONGRESS (APC)

APPELLANT

AND

1. MOHAMMED UMAR JEGA

2. KABIRU LABBO JEGA

3. INDEPENDENT NATIONAL ELECTORAL

RESPONDENT

COMMISSION (INEC)

JUDGMENT (DELIVERED BY UWANI MUSA ABBA AJI, JSC) The case of the Appellant is that it conducted its primary election on 27/5/2022 for the House of Representatives or Aliero/Gwandu/Jega Federal Constituency of Kebbi State scheduled to hold on 25/2/2023, wherein the 1^st and 2^nd Respondents participated and the 2^nd Respondent polled the highest votes of 149 while the 1^st Respondent got 6 votes and the 2^nd Respondent was declared the winner and his name was submitted to the 3^rd Respondent.

that was published by the 3^rd Respondent as the candidate of the Appellant instated of his name. That the primary election that produced the 2^nd Respondent was conducted similarly on 27/5/2022 by the State Electoral Committee of Kebbi State. Thus, vide an Originating Summons filed on 29/6/2022, the 1^st Respondent challenged the submission/forwarding and publication of the name of the 2^nd Respondent by the Appellant as its candidate to the 3^rd Respondent. The trial court dismissed the case of the 1^st Respondent. On appeal, the lower court however set aside the decision of the trial court, hence this appeal. These issues have been formulated by the Appellant for the determination of this appeal:

1. Whether the learned Justices of the Court of Appeal were right when they held that the 1^st Respondent could rely and raise issues on incompetent Grounds and Particulars of Appeal.

2. Whether the learned Justices of the Court of Appeal erred in law when they held that the filing of a Writ of Summons and Originating Summons both dated and filed on 29^th June 2022, in respect of the same subject matter, and against the sane parties by the 1^st Respondent did not amount to an abuse of court process?

3. Whether the learned Justices of the Court of Appeal breached the Appellant’s fundamental rights to fair hearing in raising, suo motu, issues which were not raised by the parties and resolving same against the Appellant without according the Appellant an opportunity to be heard thereon?

4. Whether the Court of Appeal breached the Appellant’s fundamental right to fair hearing when it failed to consider the case put forward by the Appellant in determining and resolving issue 3 as formulated in the judgment.

5. Was the lower court right when it granted the 1^st Respondent’s claims and set aside the decision of the trial court?

6. Whether in view of the decisions in lbezim V. Elebeke & 3 Ors (2022) 4 NWLR (Pt. 1819) p. 1 and APC V. Elebeke & Ors (2022) 10 NWLR (Pt. 1837) p. 45, and the evidence on record, the probative value ascribed to Exhibit 10 by the Court of Appeal was correct?

7. Was the Court of Appeal right when it discountenanced the evaluation and finding of the trial court on the signature of Hon. Chamberlain Dunkwu Nnamdi.

The 1^st Respondent on the other hand framed these issues for determination:

Whether the court below was right when it held that grounds 1, 2, 3, 6, 7, 8, 8, 9, 10, 11, and 12 of the grounds of appeal filed by the 1^st Respondent at the lower court are competent.
Whether the lower court was correct when it held that the suit filed by the 1^st Respondent at the trial court does not constitute abuse of court process.
Whether the lower court violated the right of the Appellant to fair hearing in the determination of the appeal filed by the 1^st Respondent at the lower court.
Whether having regard to the circumstances of this case, the lower Court correctly evaluated and reviewed the case of the parties before allowing the appeal of the 1^st Respondent fled at the lower court.

The issues formulated by the 1^st Respondent are more apt and comprehensive enough to consider this appeal and I shall adopt them.

ISSUE ONE:

Whether the court below was right when it held that grounds 1, 2, 3, 6, 7, 8, 8, 9, 10, 11, and 12 of the grounds of appeal filed by the 1^st Respondent at the lower court are competent.

It is submitted by the learned Counsel to the Appellant that grounds 1, 2, 3, 6, 7, 8, 8, 9, 10, 11, and 12 of the grounds of appeal filed by the 1st Respondent at the lower court are incompetent having being vague, argumentative, narrative and bore no nexus either to the ratio decidendi or were never part of the case of the 1^st Respondent. He prayed the resolution of this issue in his favour.

Learned Counsel to the 1st Respondent argued that the lower court did not hold that a party can raise issues from incompetent grounds of appeal but that the grounds

complained of are not vague, argumentative and repetitive and satisfied the requirement of the law. He urged this issue to be resolved in his favour.

Contained at pages 952-968 of the record are the said grounds of appeal with their particulars complained by the Appellant to be “vague, argumentative, narrative”. It is apparent and obvious that some of the grounds and particulars of appeal appear windy and narrative because of the excerpts and quotations of some parts of the judgment of the trial court carried out by the 1^st Respondent as his grounds and particulars of the appeal.

Nevertheless, do all these constitute incompetence of grounds and particulars of appeal?

Per PETER-ODILI, JSC, in WAZIRI & ANOR V. GEIDAM & ORSs (2016) LPELR-40660(SC) (PP. 17-19 PARAS. A) held:

That said, I would not leave it unsaid that clearly perusing the said particulars of the said Ground 2, there is verbosity, inelegance, even a degree of untidiness not to talk of a showcase of repetitiveness leading to their being properly classified as argumentative. However, such presentations cannot be used for punitive measure of a striking out of the Ground 2 as it would mean visiting the error or inelegance of counsel on a hapless litigant.

Even when, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Hence, bad or defective particulars in ground of appeal would not, necessarily render the ground itself incompetent.

Furthermore, in DAKOLO V DAKOLO (2011) 16 NWLR (PR. 1272) 22 AT 53, Adekeye, JSC, stated the position of the Court thus:

Grounds of appeal are to be differentiated from their particulars. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court… the principal duty of the Court is to do justice. The grounds of appeal and the particulars in the instant appeal might appear to be argumentative and repetitive; they equally raised triable issues, which would sustain the appeal.

The Supreme Court will always make the best that it can, out of a bad or inelegant ground or brief, in the interest of justice. In the instant case although, the

grounds were inelegantly couched and prolix, the substances of the Appellants’ complaints were clear, and were against the ratio of the judgment of the Court of Appeal”. See DAKOLO & ORS V. DAKOLO & ORS (2011) LPELR 915; (2011) 16 NWLR (PT.1272) 22. Similarly, Nweze JSC had in OMISORE V AREGBESOLA (2015) 15 NWLR (PT.1482) 205 AT 257 stated thus:

The answer to the objectors’ invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prescribed by the rules of this Court that would render such as incompetent. That is, particularly so where sufficient particulars, can be gleaned from the grounds of appeal in question and the adversary and the Court

are left in no doubt as to the particulars in which the grounds are founded.

Although the Appellant is not urging that all the grounds and particulars of the 1^st Respondent’s Notice of Appeal be rendered incompetent, even as worse as this can be, some of the competent grounds and particulars can save and redeem the other inelegant, argumentative and bad ones in the interest of substantial justice. I cannot throw away the baby with the bath water!

I have particularly gone through the grounds and particulars of the 1^st Respondent’s Notice of Appeal complained of and none appears to me to be so bad, defective and invalıd to be severed or ripped off and even more to render them incompetent. Even in the worst case and for substantial justice, an omnibus ground of appeal that is relevant and connected can sustain an appeal. See LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) AT 482 PARA A.

This issue is accordingly resolved against the Appellant.

ISSUES TWO AND THREE:

Whether the lower court was correct when it held that the suit filed by the 1^st Respondent at the trial court does not constitute abuse of court process.

Whether the lower court violated the right of the Appellant to fair hearing in the determination of the appeal filed by the 1^st Respondent at the lower court.

The learned Counsel to the Appellant submitted that that it amounted to abuse of court process for the 1st Respondent to both commence his action at the trial court by filing a Writ of Summons and Originating ‘Summons both dated 29/6/2022 with same suit’ number seeking

the same reliefs. He cited in support PML NIG LTD V. FRN (2018) 7 NWLR (PT.1619) 491-492 F-A

Similarly, he maintained that the right to fair hearing of the Appellant was violated when the lower court in re-evaluating the evidence on Exhibit APC2 and Exhibit 10 formulated the issue “Whether the trial court was right when it held that there was a conflicting presumption in favour of Exhibit 10 and Exhibit APC2 which the court resolved in favour of Exhibit APC2” as its issue 3. He urged that these issues be resolved in favour of the Appellant.

The Learned Counsel to the 1^st Respondent however submitted that the 1^st Respondent as Plaintiff withdrew the said Writ of Summons and in its stead filed an Originating Summons, which the Registry of the Court assigned the suit number initially assigned to the Writ of Summons.

He further on the second issue argued that the court below considered the case of the parties before it, the Appellant and the 2^nd Respondent on the one hand and the 1st Respondent on the other hand with respect to Exhibit 10 and Exhibit APC2 concerning the failure of the trial court to consider relevant evidence placed before it He prayed that these issues be resolved in favour of the 1^st Respondent.

It is revealing and not disputed that both Writ of Summons and Originating Summons were initially filed at the Registry of the trial court by the Appellant but the record shows clearly that the Appellant was served only with the Originating Summons.

The allegation of abuse of court process is a serious one that may necessitate the striking out of a court process if found to be so. Thus, it cannot be speculated

upon but ought to come by strong evidential or documentary proof for the court to be convinced. The facts constituting the abuse must be brought before the Court by way of affidavit and documentary evidence. In the instant case, the allegation came from the Appellant but was countered by the 1^st Respondent when he deposed at pages 833-835 that:

b. The purported Writ of Summons referred to as Exhibit PO 1 was never issued by this Honourable Court nor served on any party, having been withdrawn by me before issuance.

e. That to the best of my knowledge, there is only one suit with suit No. FHC/KB/CS/22/2022 before this Honourable Court and it is the Originating Summons.

6. In response to…I state that 1 filed this Originating Summons No. FHC/KB/CS/22/2022 in accordance with the Practice Directions.

The above deposition was not controverted or specifically denied and it is trite to be admitted and established. Every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Per IGUH, J.S.C, in OSHOD & ORS V. EYIFUNMI & ANOR (2000) LPELR- 2805(SC) (PP. 55 PARAS. C).

By Order 50 Rules 2(1) and 3(1) respectively of the Federal High Court (Civil Procedure) Rules, 2019, the filing of Notice of Withdrawal or Discontinuance of action is not a desideratum or necessity. It provides:

(1) The plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all the

defendants at any time not later than fourteen days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.

(1) Except as provided by rule 2 of this order, a party may not discontinue any action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, a id the court hearing an application for the grant of the leave may order the action or counter claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

In fact, discontinuance is allowed without the leave of court not later than 14 days after service. In the present case, the 1^st respondent withdrew his initial Writ of Summons at the trial court Registry and substituted it with the Originating Summons before service was effected on the Appellant and others.

Having withdrawn the Writ of Summons, which the Appellant was never served with, what abuse of court process, is the Appellant still holding unto? Can there be established or proved that the 1^st Respondent took out two similar processes against the Appellant malafide? What malefaction, abuse or irritation has the Appellant suffered and how? The lower court was right to find that there was no abuse of court process against the Appellant. At pages 1326, 1327, 1328, 1329 of the record respectively, the lower court observed thus:

I can see clearly that the Appellant did not serve the Writ of Summons on the 1^st and 2^nd Respondents…

How did the 1^st and 2^nd Respondents get to’ even know about the Writ of Summons when they were not served?

Why did the trial court seeing that there were 2 initiating processes before it bearing the same suit number not strike out one of the process as stipulated in…?

Why did the Registry not serve the Writ of Summons on the Respondents and give a hearing date, instead, it served the Originating Summons and gave a date for the hearing of same?…Only the Registry of the trial court can explain this eccentricity.

Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that is protested against, rather it is the manner of exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding, which is lacking in bona fide. it has a sting

of malice. It is trite that a party complaining about abuse of Court process must go further to establish that the suits were motivated mala fide. See CENTRAL BANK OF NIGERIA V. AHMED (2001) 11 NWLR (PT.724) 369, AMAEFULE V STATE (1988) 2 NWLR (PT 75) 156, particularly Per OKORO, JSC, in NWEKE V. FRN (2019) LPELR-46946 (SC) (Pp. 22-25 PARAS. E-E).

On the inappropriateness of the lower court to formulate the issue “Whether the trial court was right when it held that there was a conflicting presumption in favour of Exhibit 10 and Exhibit APC2 which the court resolved in favour of Exhibit APC2” as its issue 3, it must be noted that the court has the power, and discretion to formulate or frame issues and cannot be said to do so suo motu. A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far

as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal.” See Per TOBI, JSC, in ENEKWE V. INT’L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR- 1140(SC) (PP. 25 PARAS. A).

It was in consideration of the probative value of Exhibit 10 against Exhibit APC2 that the lower court had to frame issue three, which is meant to cover the other issues formulated by the 1^st Respondent. Besides, the court is at liberty to reframe or re-formulate issues for

determination provided it is not strange to the grounds of appeal or the issues formulated by the parties.

There is no disputing the fact that an appellate court has the right, indeed duty, where appropriate to formulate issue(s) for the determination of an appeal particularly where it is of the opinion that the issue(s) as formulated by learned Counsel does/do not deal with the substantive issue in controversy in the appeal provided the issue (s) is/are consistent with the ground(s) of appeal filed in the appeal. It is not the complaint of the appellant that the single issue formulated by the lower court did not arise from the grounds of appeal.” See Per ONNOGHEN, JSC, in YADIS (NIG) LTD V. GREAT NIGERIA INSURANCE COMPANY LTD (2007) LPELR-3507(SC) (PP. 19 PARAS. E).

The decision of the lower court to accept Exhibit 10 was based on the evidence of the Chairman of the Election Committee and the evidence of the Returning Officer appointed by the Appellant. The court below in truth found out that Exhibit 10 was duly issued by the Electoral Committee of the Appellant and the decision of the court below placing reliance on Exhibit 10 did not breach the right of the Appellant to fair hearing.

In the instant appeal and specifically, the lower court did not raise any issue suo motu. What the record bares is that it queried the processes before it that made the Appellant to conclude that it raised issue suo motu and breached the Appellant’s right to fair hearing. At page 1329, the lower court observed:

In my view, it is anomaly that 2 suits’ will have same suit number. Could it be then that the” Appellant

withdrew the Writ as contended, and the Registry of the trial court re-assigned the number on the Writ to the Originating Summons? Only the Registry of the trial court can explain this eccentricity. In the circumstances, I cannot find my wat clear in punishing the Appellant for the act of the court Registry. An act that was clearly wrong and misguided.

It is therefore so apparent by the above which the Appellant has made his grouse at page 21 paragraphs 5.1.26 and 5. 1.27 that the lower court raised an issue suo motu, thereby making an entirely new case for the 1^st Respondent and resolved same, breaching the right of the Appellant; that that was not what transpired.

The two issues are accordingly resolved against the Appellant.

ISSUE FOUR:

Whether having regard to the circumstances of this case, the lower court correctly evaluated and reviewed the case of the parties before allowing the appeal of the 1^st Respondent filed at the lower court.

It is submitted by the learned Counsel to the Appellant that if there was proper evaluation of the evidence by the lower court, the conclusion would have been that the 1^st Respondent was not entitled to any of the reliefs sought. He maintained that the 1^st Respondent did not prove that he won the primary election conducted by the Appellant, the lower court did not consider the evidence adduced by the Appellant and that the Appellant is in the best position to identify the winner of its primary election.

Furthermore, he submitted that the lower court wrongly ascribed probative value to Exhibit 10 by equating

it with the admissibility of a public document but discountenanced the signature of Hon. Chamberlain Dunkwu Nnamdi. He therefore urged that this issue be resolved in favour of the Appellant.

The learned Counsel to the 1^st Respondent on the other hand submitted that the lower court did not engage in wanton evaluation of evidence. He continued that the lower court cannot be faulted in its finding that the 1^st Respondent won the primary election as stated by the Chairman of the Electoral Committee and also by the Returning Officer of the National Working Committee. He similarly submitted that the facts in Ibezim V. Elebeke & 3 Ors (2022) 4 NWLR (Pt. 1819) p. 1 with the instant appeal are distinguishable. The learned Counsel to the 1^st Respondent further submitted that the admission by the 2^nd Respondent that he was elected by the Kebbi State Electoral Committee made other evidence worthless. As to

the preference of Exhibit 10 over APC2, he argued that the Appellant did not answer how Exhibit APC2 can be superior to Exhibit 10. He urged this court to resolve this issue in favour of the 1^st Respondent.

It is no doubt on record that Exhibit 10 was issued to the 1^st Respondent by the National Election Committee bearing the name and signature of the of the members off the said Committee on the letter headed paper of the Appellant as required by section 26 (1) of the Guidelines for the Nomination of Candidates for the 2023 general Elections issued by the Appellant. There is obviously a presumption of regularity and correctness in respect of Exhibit 10 above Exhibit APC 2. In ONDO STATE UNIVERSITY & ANOR V. FOLAYAN (1994) LPELR- 2673(SC) (PP. 34 PARAS. E), this Court, Per UWAIS, J.S.C, held that “there is a presumption of regularity when an official act is shown to have been done in a manner

consistent with the procedure laid down or where the officer performing the function did so in a public capacity”.

Contrary to what the Appellant is alleging that the lower court ascribed the status of a public document to Exhibit 10, the lower court rather based its decision on the higher probative value it has and the presumption of regularity and correctness. At page 1342 of the record, the lower court stated:

Evidently, the result of the primary election of a political party does not qualify as a public document and thus, its authenticity and validity cannot be objected to on the basis of non-certification. It is enough that Exhibit 10 was signed by the Chairman of Election Committee.

When two documents are conflicting or disputed, the court must weigh to see which one has more probative

value than the other before preferring one against the other in the absence of calling oral evidence. Placing Exhibit 10 side by side with Exhibit APC2, the lower court preferred Exhibit 10 above Exhibit APC2. In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the court. This is because where, for example, the conflicts in affidavits are not material to the case before the court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the court, the need to call oral evidence to resolve the conflicts would not arise. See Per AKINTAN, JSC, in LSDPC V. ADOLD STAMMM INTERNATIONAL (NIG) LTD & ANOR (2005) LPELR- 1746(SC) (PP. 16 PARAS. B), FALOBI V. FALOBI (1976) 9-10 SC 1; OKUPE V. F.B.I.R. (1974) ALL NLR 314 (REPRINT); GARBA V. UNIVERSITY OF MAIDUGURI

(1986) 1 NWLR (PT. 18) 550; AND L.S.D.P.C. V. ADOLD STAMM INT. LTD. (1994) 7 NWLR (PT. 358) 545.

It is a contested fact that two parallel primary elections held that produced the 1^st Respondent and the 2^nd Respondent. In resolving this, the lower court found out that the 1^st Respondent was the one that won the election having been conducted by the National Working Committee of the Appellant while the 2^nd Respondent won the primary election conducted by the Kebbi State Electoral Committee of the Appellant, This, court, Per NGWUTA, JSC, in YARDUA & ORS V. YANDOMA & ORS (2014 LPELR-24217(SC) (PP. 82-83 PARAS. B), held:

The primary elections from which the party’s candidates emerge are conducted by the National Executive Committee of the party. As often happens, there may be a parallel primaries conducted by the

State Executive Committee of the political party…in the case of nomination for the membership of the National or State Assembly…If there are two parallel primary elections, as in the cases from which these appeals arose, only a person who took part in the primary elections conducted by the National Executive Committee of the party is an aspirant… Anyone who takes part in the primary election conducted by a State organ of the party is not an aspirant and cannot approach the Court for redress for he has no locus standi to ask for redress.

In fact, the 2^nd Respondent admitted himself that he was elected by the Kebbi State Electoral Committee. On who between the 1^st or 2^nd Respondent won the said primary election, the lower court addressed the Appellant thus:

The 1^st Respondent has set up the Election Committee to be the body that will conduct the primary election on its behalf. The 1st Respondent can only recognize the declared winner of the primary election. The 1^st Respondent is forbidden by law to “recognize” the 2^nd Respondent as winner unless and until it is proven that he won the primary election. The 1^st Respondent appointed a “Returning Officer” in the person of Hon. Ikechukwu Offor Vincent who had gone extra mile…to prove that it was the Appellant that won the primary election. Thus, the person that won the election is the only person that can be presented by the political party.

The lower court has painstakingly and correctly evaluated the case of the parties before coming to the conclusion that the 1st Respondent, and not the 2^nd

Respondent, won the said primary election conducted on 27/5/2022.

As agreed by the parties and their respective counsel that appeal No. SC/CV/1479/2022 shall abide the decision in this appeal. Consequently appeal No. SC/CV/1479/2022 is also dismissed.

JUDGMENT (DELIVERED BY K.M.O KEKERE-EKUN, JSC): I have had a preview of the judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I am in

35 (1)

complete agreement with the reasoning and conclusion that this appeal is devoid of merit.

As regards Exhibits 10 and APC2, the court below painstakingly considered the evidence before it in deciding where the balance of probability lay. There was overwhelming affidavit evidence adduced by the 1^st respondent, including affidavits deposed to by the Chairman of the National Electoral Committee and Returning Officer, stating categorically that it was the 1^st respondent who won the primary election. Coupled with the admission of the 2^nd respondent that he was elected by the Kebbi State Electoral Committee rather than the National Electoral Committee, the court below was in order in resolving the appeal in the 1^st respondent’s favour.

I also dismiss the appeal as lacking in merit and abide by the order as to costs.

With consent of counsel at the hearing, it was agreed that the sister appeal, SC/CV/1479/2022 shall abide the

36 (2)

judgment in this appeal. The said appeal is accordingly dismissed.

Appeal dismissed.

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JUDGMENT (DELIVERED BY MOHAMMED LAWAL GARBA, JSC): I have had the opportunity of reading a draft of the Lead Judgement written by my Learned Brother, Uwani Musa Abba Aji, JSC in this appeal and agree that the appeal is devoid of merit.

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As pointed out in the Lead Judgement, the 2^nd Respondent admitted that primary election at which he allegedly emerged as the winner, was conducted by the Kebbi State Executive Committee of the Appellant at B/Kebbi after the primary election conducted by the Electoral Committee sent by the National Working Committee of the Appellant at which the 1^st Respondent emerged and was declared the winner. See Paragraph 45 of the 2^nd Respondent’s Court Affidavit which appears at Page 468 of vol. 1 of the Record of Appeal.

By the provisions of the Constitution of the Appellant, it is the National Working Committee of the party that possess and has the authority or power to conduct primary elections for selection/nomination of candidates for elections into States and Federal Legislatures and the Appellant is bound to comply with the provisions of its Constitution and Guidelines in the conduct of primary elections. Uzodinma vs Izuraso (No. 2) (2011) 17 NWLR vs. (Pt. 1275) 30, Lau vs. PDP (2018) 4 NWLR (Pt. 1606) 60 at 123, Musa vs. Umar (2020) 11 NWLR (Pt. 1735) 213, Jegede vs. INEC (2021) 14 NWLR (Pt. 1797) 409, Uba vs. Moghalu (2022) 15 NWLR (Pt. 1853) 271 at 311-312.

Since the State Electoral Committee had no power to conduct the subsequent parallel primary election at which 2^nd Respondent was said

39 (2)

have been nominated as candidate, such primary election was clearly void, null and of no legal effect and the 1^st Respondent remained the validly selected/nominated candidate of the Appellant for the election in question as the Appellant lacks the power to unlawfully change him for the 2^nd Respondent.

I join the Lead Judgement in dismissing the appeal and affirming the decision of the court below.

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JUDGMENT (DELIVERED BY IBRAHIM MOHAMMED MUSA SAULAWA, JSC): My learned brother the Hon. Justice U. M. Abba Aji has graciously obliged me with a draft of the judgment just delivered. I am in concurrence with the reasoning reached in the judgment, to the conclusive effect that the present appeal grossly lacks merits.

Hence, I too hereby dismiss the appeal for being devoid of merits.

The judgment of the Court of Appeal, Sokoto Judicial Division. delivered on November 16, 2022 in appeal No. CA/S/155/2022, is hereby affirmed.

41 (1)

I equally abide by the consequential order made therein. to the effect that the sister appeal No. SC/CV/1479/2022 ought to be. and same is hereby dismissed.

42 (2)

JUDGMENT (DELIVERED BY ADAMU JAURO, JSC): I read before now the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered and I agree with the reasons given therein and the conclusion reached.

The APC Guidelines for the Nomination of Candidates for the 2019 General Election, with similar provisions to its Guidelines for the Nomination of Candidates for the 2023 General Election were considered in the case of

43 (1)

AKPATASON V. ADJOTO (2019) 14 NWLR (PT. 1693) 501 wherein the court made it clear thus:

“Paragraph 20(d) of the 2^nd respondent’s Guidelines has restricted the power to conduct primary elections to the Electoral Committee constituted by the National Working Committee only, and Hon. Sufiyanu Igbafe not being a member of such committee was just a meddlesome interloper in the conduct of 2^nd respondent’s primary election in Akoko-Edo Federal Constituency.”

By his own admission, the 2^nd Respondent was elected in an election conducted by the Kebbi State Electoral Committee. His admission to that effect, conclusively destroyed and demolished any claim that he was the lawfully elected candidate of the Appellant. It was also held in AKPATASON V. ADJOTOO (supra), relying on the decision in EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556, that the State Chapter of a political party cannot conduct a primary election and any primary so conducted is illegal. The result of the primary election which purportedly produced the 2^nd Respondent as the candidate of the Appellant for the position of Member representing Aliero/Gwandu/Jega Federal Constituency of Kebbi State is therefore illegal. The outcome of an illegal primary election

44 (2)

cannot produce a candidate. Ex nihilo nihil fit – from nothing comes nothing; you cannot base the emergence of a candidate on an illegally conducted primary, both will collapse.

It is for these reasons and the fuller ones contained in the judgment of my learned brother that I also dismiss the appeal. Parties are to bear their respective costs.

Respective counsel for the parties, at the hearing of the appeal, agreed that the decision in this appeal will bind appeal No. SC/CV/1479/2022, which is also hereby dismissed.

APPEARANCES:

HABEEB A. OREDOLA, ESQ, for the Appellant; with him, A.G. MATTI, ESQ and JENNIFER ADOLE, ESQ.

SARAFA YUSUF, ESQ, for the 1^st Respondent; with him, AHMED MOHAMMED JEGA, ESQ, TRACY O. UKPEBOR, ESQ and ABDULHAKAM ADAMU, ESQ.

IBRAHIM ABDULLAHI, SAN; with him, SHAMSU A. DAUDU, ESQ, for the 2^nd Respondent.

3^rd Respondent served, but absent and unrepresented.

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