Once a candidate wins primary election, he acquires a vested interest even if his name is not published by INEC

BOKO V. NUNGWA & ORS (2018) LPELR-45890 (CA)

IN THE COURT OF APPEAL
(MAKURDI JUDICIAL DIVISION)
ON FRIDAY, THE 2ND DAY OF NOVEMBER, 2018
SUIT NO: CA/MK/24/2016(2)

BEFORE THEIR LORDSHIP
JUMMAI HANNATU SANKEY Justice of the Court Of Appeal
ONYEKACHI AJA OTISI Justice of the Court Of Appeal
JOSEPH EYO EKANEM Justice of the Court Of Appeal

Between

JOSEPH HEMEN BOKO APPELLANT(S)
And
1. BENJAMIN B. NUNGWA
2. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

FACTS OF THE CASE
The appellant, a member of the 2nd respondent, contested the 2nd respondent’s primary election held on 2/12/2014, for the nomination of its candidate for the Benue State House of Assembly election scheduled for 2015. He contested with other candidates including the 1st respondent. According to the appellant, he scored the highest number of votes at the primary election and was declared the winner of same. He was thereafter issued with 3rd respondent’s Forms EC4B (iii) (Form for nomination of Member of State House of Assembly) and CF001 (Affidavit in support of personal particulars of persons seeking election), which he filled and submitted to the 2nd respondent. The 2nd respondent transmitted them to the 3rd respondent. To his surprise, the name of the 1st respondent was substituted for his name.

Consequent upon the foregoing, the appellant filed an originating summons at the trial Court seeking a declaration that the plaintiff is the lawful and validly nominated 2nd defendant’s candidate for Kwande West State Constituency at the February 2015 polls, among others.

The 1st and 2nd respondents, on their part, contended that although appellant was alleged to have had the highest number of votes by the primary election committee of the 2nd respondent, the 1st respondent petitioned against the result on the ground that the appellant did not have the highest number of lawful votes; that the 2nd respondents appeal committee upheld the petition of the 1st respondent, subtracted the unlawful votes resulting in the 1st respondent scoring the highest number of votes; that the National Working Committee of the 2nd respondent accepted and ratified the report; and that the name of the 1st respondent was forwarded to 3rd respondent as its candidate.

At the end of the trial, the Court dismissed the case of the appellant. The appellant, aggrieved by the decision, has filed this appeal to the Court of Appeal.

ISSUES FOR DETERMINATION:
The following issues were distilled for the determination of this appeal:
(1) Whether or not Exhibits DK8, DK9 and DK10 attached to the counter affidavit of the 1st respondent and Exhibits 1 and 2 to the counter affidavit of the 2nd respondent were admissible copies of public documents.
(2) In alternative to issue one above, whether or not the proceedings in Exhibit DK8 were competent in the absence of the chairman of the purported appeal panel and in the absence of participation by the appellant or any of the persons adversely affected by the proceedings.
(3) Whether or not the appellant was the duly nominated candidate of the 2nd respondent from the result of primary election held on 02/12/2014 declared at the venue of the primary election, coupled with the forwarding of the appellants name to the 3rd respondent, and if the answer is in the affirmative, whether the subsequent forwarding of the 1st respondents name by the 2nd respondent to the 3rd respondent was in violation of Sections 33,35 and 87 of the Electoral Act, 2010 (as amended) .
(4) Whether or not the 1st respondent had breached a fundamental requirement of a valid nomination in view of his failure to comply with Section 31(2) of the Electoral Act, 2010 (as amended) having filed an invalid Form CF001, Exhibit DK12.
(5) Whether or not the decision of the lower Court was supported by the weight of evidence tendered in the case.

ARGUMENTS
ISSUE 1
Appellant’s counsel submitted that Exhibits DK8, DK9 and DK10 attached to the 1st respondent’s counter-affidavit and marked as certified true copies are inadmissible copies of public documents. He submitted that being secondary evidence of public documents, they could not have been certified by the 2nd respondent or any of its officers. He argued further that Exhibits DK8 and DK9, being photocopies of private documents, needed a proper foundation to be laid for them to be admissible and that such foundation not being laid, the documents are not admissible. He then urged the Court to discountenance or expunge the said exhibits from the record as inadmissible documents.

On their part, the 1st and 2nd respondents argued through their counsel that the case of appellant is predicated on affidavit evidence and there was no need to certify a document that is attached to an affidavit. Counsel submitted that objection cannot be taken against documents exhibited to affidavit or counter-affidavit to a motion on ground of certification unless it is tendered at trial. Counsel further contended that certification by 2nd respondent was a mere surplusage and that the question of laying foundation for admissibility of documents does not arise in affidavit evidence.

ISSUES 2, 3 & 5
Arguing his issue 2, appellant’s counsel stated that going by Exhibit DK8, the proceedings of the appeal panel were conducted without the appellant being given an opportunity to defend himself. Counsel pointed out that the appellant was not copied in or served any of the petitions written by 1st respondent neither was he invited to appear before the panel. He referred to Article 16(b) of the Guidelines of the 2nd respondent and submitted that the absence of the Chairman of the appeal panel meant that the panel had no quorum and as a result, there was no basis upon which the 2nd respondent’s National Working Committee could act.

As regards issue three, appellant’s counsel set out the detailed procedure to be followed at the venue of the primary election as contained in the guidelines of the 2nd respondent. He stated that Exhibit 4 attached to the counter affidavit of the appellant (the result sheet) was signed by the Chairman and Secretary of the primary election committee. He stated further that appellants name was forwarded to the 3rd respondent and he was availed nomination forms from the 3rd respondent which he duly completed and submitted; and as such, that appellant’s candidature could not be stayed.

Finally, in arguing issue five, appellant’s counsel submitted that the appellant had proven his case on the preponderance of evidence. He therefore urged the Court to evaluate the evidence led at the trial Court.On the other hand, the 1st and 2nd respondents’ counsel raised some questions, which he said would help the Court in deciding the appeal. He referred to Section 87 (1), (2), (4) (c) (i) & (ii) of the Electoral Act, 2010 (as amended) and submitted that a distinction could be drawn between lawful votes and unlawful votes under the said provision and that the highest votes contemplated thereunder is the highest lawful votes. He contended that two categories of ballot papers were used in the primary election viz; (i) ballot papers and (ii) counter-foil papers; that it was upon the extraction of the votes cast on the counter- fail papers, that the 1st respondent was declared the winner.

On the issue of fair hearing, 1st and 2nd respondents’ counsel stated that it was not true that the appellant was not afforded an opportunity of being heard by the appeal committee. He therefore submitted that the appellant who refused to appear before the committee or appeal against its decision can not complain of denial of fair hearing.

Further, counsel argued that since the 1st respondent had the highest lawful votes, his name was duly forwarded to the 3rd respondent. It was further submitted that since 1st respondent’s name was forwarded to 3rd respondent after appeals were concluded, the same was regular. On the 3rd respondent’s part, it was stated by its counsel that it was not surprised that the 2nd respondent forwarded the name of 1st respondent to it for substitution and that the 3rd respondent has nothing to say when a party writes for withdrawal of a candidate.

ISSUE 4
In this regard, appellant counsel pointed out that the affidavit (Form CF 001) submitted by the 1st respondent was not duly sworn before a Commissioner for Oaths in the High Court but before a notary public contrary and that the non-compliance is not a mere irregularity.
Counsel for the respondents made no argument on this issue.

COURT’S FINDINGS
ISSUE 1
Here, it was the Court’s position that Exhibits DK8 and DK9 are private documents by virtue of Section 102(a) and (b) of the Evidence Act, 2011 and therefore needed no certification by any one.

On the question of laying proper foundation for the admissibility of the documents, the Court held that this does not arise because the trial was not by oral evidence but by affidavit evidence. That generally speaking, objection cannot be raised against a document attached to an affidavit or a counter-affidavit because the question of admissibility of the document does not arise in that circumstance. The Court adduced to the case of Ilorin East Local Government v. Alasinrin (2012) LPELR 8400 (CA).

ISSUES 2, 3 & 5
The Court observed that the result sheet shows the appellant as having scored the highest number of votes at the primary election and was declared the winner. The Court posited that the law is that at the end of voting in a primary election, the aspirant with the highest number of votes shall be declared the winner thereof and his name shall be forwarded to the 3rd respondent as the party’s candidate. Consequently, that the appellant, having secured the highest votes in the primary election, had acquired a vested interest in that position which could only be taken away in accordance with the law. The Court stated that it is completely immaterial that his name was not published by the 3rd respondent as a candidate as that is an administrative matter that does not add to or subtract from the candidature of a candidate.

On the issue of fair hearing, the Court pointed out that there was no evidence or even assertion of service of 1st respondent’s petitions on the appellant. It was thus the Court’s position that having not afforded the appellant the opportunity to be heard before making findings against him, the appeal committee breached his right to fair hearing specifically audi alterem patem and this rendered the whole proceedings and its finding and recommendations null and void.

Furthermore, the Court posited that the proceedings of the appeal committee being signed by two persons as against the requirement of 5 – member Legislative Election Appeal Committee by Article 16(b) of the 2nd respondent’s guidelines makes the proceedings and report of the appeal committee a nullity.

ISSUE 4
The Court observed that the point raised under this issue being a fresh issue which was not raised and considered at the trial Court, Appellant Counsel requires leave of the Court of Appeal to raise it. That there being no leave applied for and obtained to raise it, the issue is not competently before the Court. It was therefore discountenanced.

The Court nevertheless proceeded to consider the issue and concluded that the essence of Section 31(2) of the Electoral Act is to ensure that the list or information submitted by each candidate is under oath. Therefore it does not matter whether the oath is at the High Court of a State or at any other place where oath can be administered.

DECISION/HELD:
In the final analysis, the appeal was held to be meritorious and same was allowed.
The judgment of the lower Court was therefore set aside and judgment was entered in favour of the appellant in terms of the reliefs 1, 2, 3, 4, 5 and 6 of the originating summons.

The 1st respondent was further ordered to pay to the appellant all the allowances and salaries he received as a member of the House of Assembly, Benue State, from the date of his swearing in to the date of his vacation of the seat.Costs of the appeal assessed at N200, 000 was awarded in favour of the appellant against the 1st and 2nd respondents.
Appearances:
T.D. Pepe, Esq. with him, J.V. Ogizi, Esq. For Appellant(s)
L.A. Izabi-Undie, Esq. with him, Bemva Akortsaha, Esq.-for 1st and 2nd respondents.
U.O. Sule, Esq. with him, Dr T.B. Maiyaki and N.C. Kumbut, Esq.- for 3rd respondent.
For Respondent(s)
COMPILED BY: LAWPAVILION