CASE OF THE DAY: EFFECT OF UNCHALLENGED EVIDENCE

ALL PROGRESSIVES CONGRESS V. HIGH CHIEF IKECHI EMENIKE

Suit Number:?CA/OW/269/2022

FULL JUDGEMENT

(Delivered by Mohammed Baba Idris, JCA)

By an Originating Summons dated the 1st day of June, 2022, the 1st Respondent as Claimant in the court below, raised the following questions for determination thus:?

1.Whether by the combined provisions of Section 84(1) of the Electoral Act, 2022 (as amended), and Article 13.3 of the Constitution of the AH Progressive Congress, 2022 (as amended), Congress/Primaries elections of All Progressive Congress for nomination of candidates for elections can be conducted by any other person or persons other than that the primaries committees appointed by the National Executive Committee or National Working Committee of All Progressives Congress.

2.Whether by the combined provisions of Section 84(1) of the Electoral Act, 2022 (as amended), and Article 13.3 of the Constitution of the All Progressive Congress, 2022 (as amended), an aspirant to an elective position, who is a member of All Progressives Congress can on his own organize and conduct a valid primary election of All Progressives Congress and purport to elect and nominate himself or herself as a candidate of All Progressives Congress for an election.

3.Whether by the combined provisions of Section 84(1) of the Electoral Act, 2022 (as amended), and Article 13.3 of the Constitution of the All Progressive Congress, 2022 (as amended), an independent candidate is permitted to participate in a general election to be conducted by Independent National Electoral Commission.

4.Whether by the combined provisions of Section 84(1) of the Electoral Act, 2022 (as amended), and Article 13.3 of the Constitution of the AH Progressive Congress, 2022 (as amended), the All Progressives Congress and Independent National Electoral Commission are not bound to accept and publish the name(s) of the candidate(s) that emerged the winners of the primary elections conducted by the National Executive Committee or National Working Committee of All Progressives Congress through a committee appointed for that purpose.

5.If Questions 1, 2 and 3 above are answered in the Negative, and Question 4 answered in the positive, whether the Claimant is not entitled to all full benefits, privileges and rights accruing to him as the elected/nominated candidate of the 1st Defendant in the primary election held by the 1st Defendant in the Primary election held by the 1st Defendant in Abia State on the 26h day of May, 2022, to contest the 2023 gubernatorial election in Abia State.

The 1st Respondent claimed against the Appellants and 2nd Respondent as Defendants in the court below, jointly and severally as follows:

1.A Declaration of this Honourable Court that the 1st Defendant followed all due, valid and lawful processes under its Constitution 2022 (as amended), guidelines for conduct of her 2023 primary elections, Electoral Act, 2022 (as amended), and the constitution of the Federal Republic of Nigeria 1999 (as amended), leading to gubernatorial primary election in Abia State, including the nomination of the Claimant as the governorship candidate of the 1st Defendant in Abia State for the 2023 general elections.

2.A Declaration of this Honourable Court that 1st Defendant's notices to the 3d Defendant on the conduct of her primaries for the nomination of candidates in the 2023 general elections dated 5th day of May, 2022 and 11th day of May, 2022, respectively were lawful and sufficient under the guidelines of the 3d Defendant and Electoral Act, 2022, (as amended) for the congresses or primary elections of the 1st Defendant in Abia State.

3.A Declaration of this Honourable Court that the election of delegates and nomination of candidates of political parties are internal affairs of political parties as severally decided by the Supreme Court, and only candidates who emerged through primary elections conducted by the political parties are lawful candidates for elections.

4.A Declaration of this Honourable Court that only the committee set up by the 1st Defendant's National Executive Committee or National Working Committee under its guidelines and Constitution can lawfully conduct primary elections of the party, and no member or group can lawfully engage in 'seif help' or conduct 'private' primary election outside the committee mandated by the party as any such private primary election is unlawful, null and void.

5.A Declaration of this Honourable Court that a member of the 1st Defendant, who was absent or refused to present himself/herself from and in the 1st Defendant's primary election conducted by the committee appointed by National Executive Committee or National Working Committee of the 1st Defendant lacks the locus standi to challenge the outcome of the primary election.

6.A Declaration of this Honourable Court that the election/nomination of the Claimant as the governorship candidate of the 1st Defendant in Abia State for the 2023 gubernatorial election in Abia State, from the indirect primary election held at Chidiebere park, Umuahia, Abia State, on the 26h day of May, 2022, by the Committee appointed by National Executive Committee for National Working Committee for that purpose is valid, and lawful and in accordance with the Constitution of the 1st Defendant 2022 (as amended), her guidelines and Electoral Act, 2022, (as amended).

7An Order of this Honourable Court directing the defendants to accept the election/nomination of the Claimant as the 1st Defendant's lawfully nominated governorship candidate for Abia State, in the 2023 general elections.

1. 8An Order of this Honourable Court compelling and mandating the 3rd Defendant to upload and publish the name of the Claimant as the 1st Defendants lawfully nominated governorship candidate for Abia State, in the 2023 general elections.

9.An Order of Mandatory Injunction restraining the 3rd Defendant from uploading and publishing the name of any other person as the 1st Defendant's lawfully nominated governorship candidate for Abia State, in the 2023 general elections.

10.An Order of this Honourable Court restraining the Defendants from interfering with the nomination of the Claimant as the 1st Defendants governorship candidate for Abia State in the 2023 general elections having emerged through due process.

11.Any order or consequential orders this Honourable Court may deem fit to make in the circumstances of this suit and interest of justice.

In support of the originating summons is a 37 paragraph affidavit deposed to by the 1st Respondent attaching documents marked as Exhibits A - K and a written address wherein the 1st Respondent stated that he was returned the winner of his party's (the 1st Appellant's) gubernatorial primary election but that some aggrieved aspirants of the 1st Appellant who lost out in the said primaries are making clandestine plans to ensure that his name is not submitted by the 1st Appellant to the 2nd Respondent as the candidate of the 1st Appellant in Abia State for the 2023 general election and that his name has not been uploaded and published by the 2nd Respondent as the candidate of the 1st Appellant in Abia State for the 2023 general election.

In response to the processes filed by the 1st Respondent, the Appellants filed a written address which they described as being filed to make the facts of the case very clear to the court. However none of the Defendants in the suit filed a counter affidavit to the originating summons.

The parties argued their respective written addresses before the court below on the 24th day of June, 2022 and on the same day, after considering the respective arguments of parties, the learned trial judge; Honourable Justice Benson C. Anya gave judgment in the Suit No: HUM/31/2022 in favour of the 1st Respondent.

Dissatisfied with the said decision, the Appellants filed a Notice of Appeal dated the 4th day of July, 2022 and raising 4 (four) grounds of appeal.

Only the Appellants filed their Brief of Argument in the appeal. The Appellants' Brief of Argument was filed on the 25th day of August, 2022 and settled by the Appellants Counsel,

Michael Ashi Esq. In the said Appellants' brief the following 3 (three) issues were formulated for determination thus:

1.Whether the trial court was vested with jurisdiction to entertain the suit having regard for the express provisions of Section 285(14) of the 1999 Constitution (as amended) Section 84(14) of the Electoral Act 2022 (as amended) and Section 251(1) of the 1999 Constitution (as amended) (Distilled from Ground 1 of the Notice of Appeal)

2.Whether the Suit of the 1st Respondent before the court below was premature and speculative thereby robbing the trial court of the necessary jurisdiction to entertain the suit? (Distilled from Ground 2 of the Notice of Appeal)

3.Whether the 1st Respondent was entitled to grant of the reliefs sought by him before the trial court having regard for the state of the evidence adduced by the said 1st Respondent in support of his claim? (Distilled from Ground 4 of the Notice of Appeal)

On issue one, the learned Appellants' Counsel argued that whereby the combined effects of the provisions of Section 285(14) of the 1999 Constitution (as amended) and Section 84(14) of the Electoral Act 2022 (as amended) a subject matter is exclusively listed within the jurisdiction of the Federal High Court, such subject matter cannot be adjudicated upon, under any circumstance by a State High Court.

It was argued that since the matter presented by the 1st Respondent is a pre-election matter, it is impacted by the extant and express provision of Section 84(14) of the Electoral Act which vests exclusive jurisdiction on the Federal High Court in respect of pre-election matters and bars all other courts from entertaining pre-election disputes as a court of first instance. Counsel then cited the case of MARWA & ORS VS. NYAKO & ORS (2012) LPELR - 7837 (SC) (PP. 172 PARAS A) and argued further that the trial court was in grave error when it entertained and determined the suit of the 1st Respondent as constituted before it and was supposed to decline jurisdiction.

On issue two, it was submitted that on an examination of paragraph 34 of the affidavit in support of the originating summons which encapsulates the entirety of the claim, this Court would see that the entire case of the 1st Respondent was based on a speculated plan which the lower court identified but went further to enter judgment on the basis of speculation. Counsel cited the case of PLATEAU STATE OF NIGERIA & ANOR VS. A. G. FED & ANOR (2006) LPELR - 2921 (SC) (PP. 76 - 77 PARAS F).

The learned Appellants' Counsel argued further that the judgment of the trial court was a travesty of justice, intensely perverse and only liable to be set aside by this Court. It was further argued that the academic and speculative nature of the premature facts underpinning the 1st Respondent's suit at the trial court cannot ground the judgment obtained by the 1st Respondent in any way.

On issue three, it was submitted that the content of Exhibit G which is an exhibit attached by the 1st Respondent on his own volition, is fatal to his cause as it conclusively proves that the 2nd Respondent could never have monitored a primary election it only became aware of 4 days after the said primary election was concluded and that the consequence of this none participation of the 2nd Respondent in the process that produced the 1st Respondent renders the nomination process a violation of the Electoral Act, 2022 and thus the content of Exhibit G is in conflict with paragraph 29 of the 1st Respondent's affidavit in support of the originating summons. On this point, counsel cited the case of OPARAUGO & ANOR VS. OPARAUGO & ORS (2007) LPELR - 8181 (CA) (PP. 16 PARAS A).

In conclusion, the Appellants' Counsel submitted that the Appellants' case is that the trial court had no jurisdiction to exercise on the question and erred in law when it went ahead to determine the suit, and that once this point is determined, it dispenses with other issues addressed in the Appellants' brief. It was argued further that there is no evidence to support the claim of the 1st Respondent which was necessary as he was seeking declarative reliefs.

On the whole, this Court was urged to dismiss the suit before the lower court, set aside its judgment and allow the appeal.

RESOLUTION OF THE ISSUES

I have read and summarized the brief of the Appellants, the only party who filed a Brief of Argument in this case. I shall now proceed to determine the merits of this appeal on the Appellants' Brief of Argument alone and I shall adopt the issues for determination formulated by the Appellants in determination of this appeal.

ISSUE ONE

Whether the trial court was vested with jurisdiction to entertain the suit having regard for the express provisions of Section 285(14) of the 1999 Constitution (as amended) Section 84(14) of the Electoral Act 2022 (as amended) and Section 251(1) of the 1999 Constitution (as amended)

The provisions of Section 285(14) of the 1999 Constitution (as amended), Section 84(14) of the Electoral Act 2022 (as amended) and Section 251(1) of the 1999 Constitution (as amended) are instrumental in the determination of this issue and the said provisions are reproduced hereunder.

Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

For the purpose of this section, "pre-election matter" means any suit by -a..An Aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with bv a political party in respect of the selection or nomination of candidates for an election :b.An Aspirant challenging the actions of decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection' or nomination of candidates and participation in an election;

And

c.A political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National

Electoral Commission in respect of the nomination of candidates of political parties for an election timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election."

While Section 84(14) of the Electoral Act 2022 (as amended) provides:

"Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress."

Also Section 251(1) of the 1999 Constitution (as amended) provides:

"Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters...."

A conjunctive reading of the reproduced provisions above clearly shows that Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) defines what a pre-election matter is. Section 84(14) of the Electoral Act 2022 (as amended) provides for the jurisdiction of court to hear pre?election matters stemming from the non-compliance with the provisions of the Electoral Act and the Party Guidelines while Section 251(1) of the 1999 Constitution (as amended) provides for the exclusivity of the jurisdiction of the Federal High Court to hear and determine certain causes and matters.

The question to ask at this point is: does the suit subject matter of the appeal fall under the umbrella of these provisions?

This is quite clear because looking at the claim of the 1st Respondent contained in the affidavit in support of the originating summons filed at the lower court, the 1st Respondent gave a chronological explanation about the compliance of the Appellants with the party's Constitution, guidelines and the Electoral Act, 2022 in the conduct of the primary election of his party for the nomination of gubernatorial candidates that finally returned him as a winner. Moving therefrom, it is also clear that his contention was that some aggrieved aspirants of the 1st Appellant are making clandestine plan to ensure that his name is not submitted by the 1st Appellant to the 2nd Respondent as her candidate and that his name is not uploaded and published by the 2nd Respondent as the candidate of the 1st Appellant in Abia State for the general election.

Owing to the clear fact before this Court, can it still be said that the claim of the 1st Respondent falls under Section 285(14) to set in motion the running wheel of Section 84(14) of the Electoral Act 2022? The answer would be a clear NO!

If this is the case, would the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria (1999) (as amended), apply to this case? Here again, the answer will be another resounding NO!

The importance of these highlights is to show that Section 84(14) of the Electoral Act 2022 (as amended) has given exclusive jurisdiction to the Federal High Court in pre-election matters where an aspirant complains that any of the provisions of the Electoral Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, which is clearly not the complaint of the 1st Respondent as he agrees that the Constitution and guidelines of the 1st Appellant likewise the provision of the Electoral Act, 2022, were complied with in returning him a winner but he ran to seek refuge in the arms of the law to protect his status as a winner and nothing more.

The importance of jurisdiction to adjudicate on any matter by a court cannot be over emphasized. See the case of the case of PDP VS. OKOROCHA (2012) 15 NWLR (PT. 1323) 205 where the Court held: "The law is trite and it has been emphasized again and again that jurisdiction is the very basis on which any court or tribunal can hear a case. It is the life line of all trials in our courts and as such any trial without jurisdiction is a nullity...."

Flowing from the findings I have already made hereinabove, it is thus clear that the lower court had the jurisdiction to have adjudicated on the matter as the issue in this case is not one that falls within the ambit of Section 285(14) of the Constitution and Section 84(14) of the Electoral Act, and therefore the provision of Section 84(14) of the Electoral Act cannot apply. Furthermore, the provisions of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria cannot hand exclusivity to the Federal High Court in the light of this case. It also follows that both the Federal High Court and the State High Court (in this case, the High Court of Abia State) has the jurisdiction to adjudicate over the instant suit leading to this appeal.

It is thus my unshaken belief that the suit of the 1st Respondent was properly brought before the lower court and the said court had the jurisdiction as it did to adjudicate on the matter. It is on this note that I say that this issue is resolved against the Appellants.

ISSUE TWO

Whether the suit of the 1st Respondent before the court below was premature and speculative thereby robbing the trial court of the necessary jurisdiction to entertain the suit?

The pertinent question under this issue is: can the suit of the 1st Respondent at the trial court be said to be premature and speculative as to the fact that some aggrieved aspirants of the 1st Appellant are making clandestine plans to ensure that his name is not submitted by the 1st Appellant and that his name was not uploaded and published by the 1st Appellant as the candidate of the 1st Appellant in the Abia State general elections?

It is trite that this Court has the power to look at the contents of the record of appeal before it and make use of documents and facts contained therein and draw inferences. See the case of CONGRESS OF PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 18 NWLR (PT. 1279) AT PAGE 493. The fact is clear from the record of appeal that none of the Defendants now the Appellants and the 2nd Respondents herein filed a counter?affidavit at the trial court to dispute this question at the trial court. Rather, the Appellants filed a written address as contained in page 49 - 54 of the record of appeal wherein the Appellants admitted the facts as contained in the affidavit in support of the originating summons at the trial court thus:

"My Lord, the 1st - 2nd Defendants admit the facts stated and relied upon by the Claimants as the truth and wish to see the current issues resolved by this Honourable Court.

The Constitution of the 1st Defendant and the Electoral Act provides for how to conduct indirect primary election. The laid down procedures and requirement were complied in the conduct of the primaries on 26h day of May, 2022, wherein the Claimant emerge the winner.

The Supreme Court has remained unshaken in her position that primaries of a political party is conducted by the Party through a committee appointed by the national executive committee of the party.

See Emenke V PDP (2012) ALL FWLR PT 640 PAGE 1261 AT 1267 - 1268, YARADUA V YANDOMA (2015) 4 NWLR (PART 1448) PAGE 123 AT 135 - 136 RATIO 9, EZE V APGA (2020) 3 NWLR (PART 1712) PAGE413AT422.

We are in total and complete agreement with the position of the law rendered in the above decisions.

We note that Oder 20 Rule 1 of the Abia State High Court (Practice and Procedure) Rules, 2021, permits the admission of facts by a party to a suit in circumstances such as the present.

It is trite principle of law that where issues are joined, the onus of proof rests on the person who would fail if no evidence was adduced. Where there is substantial admission of facts, the Court is left with a fait accompli, to do justice as it deems fit. We urge my Lord to make the declarations and injunctive orders sought in this suit"

Page 27 of the Record of Appeal speaks so clearly for itself. Where a party so clearly admits the facts for which the Claimant so desperately seeks the protection of the court, what more can the court do but to give him the protection which he desperately needs especially when the Appellants and the 2nd Respondent failed to file a counter affidavit to the facts deposed to by the 1st Respondent and on the face of the evidence in support of these facts? This is clearly what the trial court did and this Court can clearly not fault that decision as doing so would be pushing the Claimant into the cold and away from the protective warmth of the law. Also, it is important to state here that any fact which has not been categorically countered or denied by a party is deemed admitted and thus when evidence is undisputed or unchallenged, it should be accepted. See the case of EFET VS. INEC (2011) 7 NWLR (PT. 1247) AT PAGE 423. Although the trial court would still have to evaluate the evidence as the trial court had done in the instant case. See also the case of GONZEE NIGERIA LTD VS. NERDC (2005) 13 NWLR (PT. 943) AT PAGE 634.

This issue is thus resolved against the Appellants in favour of the Respondents.

ISSUE THREE

Whether the 1st Respondent was entitled to grant of the reliefs sought by him before the trial court having regard to the state of the evidence adduced by the said 1st Respondent in support of his claim.

There is nothing much to say on this issue as all that needed saying has been said under issue two, but I must add that the argument of the Appellants under this issue is one that amounts to making a case for the 2nd Respondent as it is before the Court as evidence that the 2nd Respondent was given notice of the primary elections conducted by the 1st Appellant and also a report of the primary election of the Appellants and again that they monitored the exercise. Is it not the responsibility of the 2nd Respondent as a party to the suit to dispute that fact? And when they failed to do so?

As against the argument of the Appellants, the 1st Respondent's evidence in support of the facts stated in the Affidavit in Support of the originating summons was not only hinged on Exhibit G but on a combination of both facts and eleven exhibits marked as Exhibits A - K. The court granted the declarative reliefs sought by the 1st Respondent based on all these evidence and being satisfied by this evidence of the 1st Respondent's entitlement to this right. Again, this Court will not take for granted the fact that neither the Appellants nor the 2nd Respondent challenged the affidavit evidence deposed to by the 1st Respondent himself even when the originating summons were served on the Appellants and the 2nd Respondent as stated by the trial court at page 78 of the Record of Appeal before whom the processes were filed and who had the privilege to see the parties.

In the absence of any counter affidavit challenging it same are deemed to be admitted as true and established. See the case of FALANA VS. BELLO (1995) 9 NWLR (PT. 418) AT PAGE 182. The 1st Respondent's depositions in his supporting affidavit show that there are moves to stop the 1st Appellant from submitting his name to the 2nd Respondent and that the 2nd Respondent has not uploaded his name as candidate of the 1st Appellant to contest the general elections. The onus is on them to challenge or controvert that fact in their counter affidavit but in this case, no such thing was done and the end result therefore is to conclude that the depositions contained in the 1st Respondent's supporting affidavit are true, correct and deemed admitted. In fact, on the date the matter was heard on the 24th of June, 2022, the following transpired in court:

"Parties absent

E E Nwafor Esq for the Claimant.

C. O. Nwator Esq for the 1st and 2nd Defendant.

Claimants counsel: we have an originating summons dated the first day of June, 2022 and filed on the same day. We move in terms of the motion papers and urge the court to decide in our favour. Counsel to the 1st and 2nd Defendant:

The first and second Defendants which is the political party sponsoring the candidate including the Claimant have no reason to challenge this suit frontally. Pursuant to that we filed a written address in response to the suit so as to make the facts of this case very clear to the court. We rely solely on our written address and urge the court to apply its discretion judicially and most judiciously. Court: The time is 11:15am now. Parties are ordered to comeback to court by 3:30pm for judgment in this matter in view of the sui seneris natureof the case."See pages 55 and 56 of the Record of Appeal.

I accept and hold that the trial court can act on the affidavit evidence of the 1st Respondent to make or give declaratory judgment, where the facts therein are neither disputed, challenged nor contested, particularly where the depositions therein and the facts which the depositions attest to are not inconsistent or mutually contradictory, as in the instant case. See the case of CBN VS. AMAO (2010) 16 NWLR (PT. 1219) 271.

I therefore see no reason to disturb the decision of the trial court and I will also not fail to mention that this Court has observed that Exhibit B was the notice given to the 3rd Respondent for the conduct of the 1st Appellant's primary election. That being said, this Court finds that the 1st Respondent was entitled to the grant of the reliefs sought by him before the trial court having regard to the state of the evidence adduced by?the said 1st Respondent in support of his claim as the evidence speaks for itself. This issue is therefore resolved against the Appellants. In the circumstances, this Court finds no merit in this appeal considering the totality of the findings made and hold that this appeal is a time waster and it is accordingly hereby dismissed. The judgment of the High Court of Abia State delivered on the 24th day of June 2022 in Suit No. HUM/31/2022 is hereby affirmed. As a matter of discretion, I make no further order as to