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Plaintiff has burden of proof in election petition proceedings

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Scale of justice

CHIDOKA V. UGOKWE & ORS (2019) LPELR-46705 (CA)

In The Court Of Appeal
(Abuja Judicial Division)
On Friday, The 1st Day Of February, 2019

Before Their Lordship
Abdu Aboki J.C.A
Adamu Jauro J.C.A
Emmanuel Akomaye Agim J.C.A

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SUIT NO: CA/A/1140/2018

Between

HON. OBINNA CHIDOKA ……………………. (S) And 1. AMB. JERRY SONNY UGOKWE
2. PEOPLES DEMOCRATIC PARTY (PDP)………. APPELLANT

RESPONDENT (S)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

LEAD JUDGMENT DELIVERED BY ADAMU JAURO, J.C.A.
FACTS OF THE CASE
The gravamen of the Plaintiff/1st respondent’s complaint at the trial Court was that, he scored the highest votes at the primary election conducted by the 1st Defendant/2nd respondent in Idemili North/South Federal Constituency for Federal House of Representatives, but the 1st Defendant refused to forward his name to the 2nd Defendant/3rd respondent as the candidate of the party.

The Plaintiff was shown to have obtained 38 votes at the primary election, yet his name was substituted with the name of the 3rd Defendant, who was shown to have polled 9 votes.

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The contention of the 1st Defendant/appellant was that the plaintiff was absent at the primary election and only got 1 vote cast for him in his absence.

The 1st Defendant further contended that the Result sheet attached to the Plaintiff’s originating summons was concocted by the Plaintiff and not issued by the 1st Defendant.

Appellant filed a motion on notice at the trial Court, and applied for an order of the trial Court ordering pleadings and directing the parties to call oral evidence.

On 17-10-2018, during proceedings before the trial Court, appellant informed the Court that the motion had been filed. The trial Court thereupon directed that the Court will want to take the motion along with the substantive suit.

In doing so, the Court will first determine the motion and if the Court is satisfied, it will at that stage order for pleadings.

If however, the motion fails, the Court will proceed to determine the substantive suit on the merit since the contending parties have filed their respective processes.

On the adjourned date, the Court determined the substantive suit in favour of the 1st respondent, without hearing the pending motion. Dissatisfied, appellant appealed to the Court of Appeal.

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ISSUES FOR DETERMINATION
The appellant raised the following issues for determination:
“1. Whether the learned trial Judge was right when he determined the substantive suit without considering and pronouncing on the Appellant’s motion on Notice dated 31st May, 2018 praying the Court to order pleadings and to direct parties to call oral evidence.

2. Whether the learned trial Judge was right when he determined the substantive suit without calling for oral evidence.

3. Whether considering the evidence placed before the lower Court by the parties, the learned trial Judge was right in entering Judgment for the 1st Respondent to the effect that the 1st Respondent won the 2nd Respondent’s primary election for Idemili North/South Federal Constituency of Anambra State.

4. Whether the learned trial Judge was right when he held that the accounts rendered by the Appellant and the 2nd Respondent as to the proceedings at the primary election were contradictory and that the Court had no option than to reject both accounts.”

ARGUMENTS
Issue 1

The appellant’s learned SAN’s contention on this issue was that the trial Court’s failure to consider and pronounce on his motion was not only a breach of the appellants right to fair hearing but a deliberate avoidance of the motion in order to hurry in judgment for the 1st respondent.

Further, that the trial Court abdicated its duty to hear and pronounce on the motion, as a result of which the entire proceedings ought to be nullified.

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It was further contended that it is immaterial whether or not the motion would have had merit or not or whether the ultimate judgment of Court on the merit was correct or not; that fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision.

On the flip side, counsel for the 1st respondent argued that the decision of the Trial Judge to deliver its substantive judgment on 21st November, 2018 rather than call for pleadings and oral evidence as the Appellant requested, meant that the Appellant’s application had failed as pronounced by the Court on 17th October, 2018 because it also said that if the Motion failed, the Court would proceed to determine the substantive Suit and that was exactly what the Court did to the knowledge of all the parties. To the respondent, the learned trial judge never abdicated his duties, nor in any way deny the Appellant fair hearing.

Issues Nos. 2 and 4
Learned SAN for the appellant argued that the affidavits in support of the originating summons and the counter affidavit in opposition to the originating summons are irreconcilable and materially in conflict and therefore would require oral evidence to resolve the conflicts.

Furthermore, that the application for order of pleadings and oral evidence which the trial Court failed to determine was not contested by the 1st respondent and the other parties herein.

Conversely, learned Counsel for the 1st respondent argued that the counter affidavit of the appellant told obvious lies as confirmed by the affidavit evidence of the 2nd respondent with respect to material facts.

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That originating summons is commonly used in Nigeria to commence pre-election cases as in the present case and that the trial Court, having evaluated all the documentary evidence before it, found the 1st respondent’s result of the primary election more credible and acceptable than that of the appellant and refused to accept the result of the primary elections attached to the affidavits of the appellant and 2nd respondent, that there is nothing perverse about this, that the law has always been that the trial Court has the exclusive discretion to decide, which between conflicting affidavits it is to believe.

It was further argued that the facts of this case do not require the calling of oral evidence to resolve the conflicts between the affidavits of both sides, that the only conflicts that existed were between the affidavit of the appellant and the 2nd respondent and that since they belonged to the same side, there was no need to call oral evidence to resolve such conflict.

COURT’S FINDING
Issue 1

It was the Court’s position that the delivery of the judgment on the merit of the originating summons without reference to the appellant’s motion of 31-5-2018 was a complete departure from its direction on 17-10-2018.

The Court further held that where a Court directs that it shall consider a particular application along with its final decision on the merit of the substantive suit, it must comply with its own directive by first determining the application and reach a decision that it has failed, before it proceeds to deliver its final judgment on the merit of the substantive suit.

The Court then asserted that the failure or omission or refusal of a Court to hear and decide a party’s application or issue raised by him, is a violation of his fundamental right to fair hearing; the effect of which breach nullifies the entire proceedings or the part of the proceedings affected by the breach.

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Issues 2 and 4
The Court swiftly pointed out in line with these issues that while the 1st respondent attached the result sheet of the primary election as exhibit eight to his affidavit in support of the originating summons, the appellant attached it to his counter affidavit as exhibit C1. The 2nd respondent, who conducted the primary election, attached the result to its counter affidavit as exhibit ME1.

That while the three documents purported to be the same thing- the result sheet of the primary election, the scores of each candidate differs in these exhibits. Further, the 1st respondent in his reply affidavit to the 2nd respondents counter affidavit alleged some exhibits to be false.

However, as the Court observed, the trial Court did not even acknowledge that any material conflict existed between the affidavits of the 1st respondent as plaintiff and those of the appellant and 2nd respondent as defendants.

The Court further declared that it was obvious that the trial Court avoided the evaluation of the huge volume of affidavit evidence and documents adduced by the plaintiff and 1st and 2nd defendants as its decision is not the result of a proper evaluation of the totality of the affidavit evidence and documents of the parties before it.

The Court avowed that it is settled law that where the material conflicts concern the commission of crime as in this case, there is need to call oral evidence to resolve such conflict and determine the issue.

Issue 3
Here, it was the Court’s position that the 1st respondent as the plaintiff had the burden to prove the case he brought to Court.

That since the appellant (as 3rd defendant) and the 2nd respondent as 1st defendant) by their counter affidavits adduced evidence that rebutted or disproved the case established by the plaintiff by showing that it is rather the appellant who secured the highest votes in the primary election and won the primary election and was therefore entitled to be presented by the 2nd respondent to the 3rd respondent as the party’s candidate for the election, there is need for oral evidence to be elicited to prove the allegations of forgeries as it is the 1st respondent’s case that would fail if no oral evidence is adduced to prove the falsity of exhibits

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Consequently, that without calling oral evidence to prove his assertion that exhibits C1, C2, C3, C4, ME1, ME2 and ME3 were forged, the 1st respondent failed to prove that the said documents were forged.

HELD
All the issues herein were resolved in favour of the Appellant.
On the whole this appeal succeeded as it was held to be meritorious; and same was allowed. The judgment of the Federal High Court at Abuja delivered on 21-11-2018 in Suit No. FHC/ABJ/CS/123/2015 by A.R. Mohammed J was consequently set aside and in its place, it was adjudged that the plaintiff failed to prove his claim in Suit No. FHC/ABJ/CS/123/2015 and the said claim was dismissed. The 1st respondent was ordered to pay costs of N400, 000.00 to the appellant.

Appearances:
Dr. Onyechi Ikpeazu OON, SAN, FCArb with him, Tobechukwu Nweke MCArb, Obinna Onya, Esq., Melvin Oputa, Esq. and Nkemakonam Obiesie, Esq. For Appellant(s)
Dr. Ehiogie WEST-Idahosa, with him, D. O Irabor, Esq., Glory Onen-Zakka, Esq., Chisimdi M. Chima, Esq. and Onifade Taiwo, Esq. for the 1st Respondent For Respondent(s) Compiled by: LawPavilion


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