OGAH & ANOR V IKPEAZU & ORS

OGAH & ANOR V IKPEAZU & ORS


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 12TH MAY, 2017


Suit No: SC.717/2016(CONSOLIDATED)

CITATION: 

Before Their Lordships:

WALTER SAMUEL NKANU ONNOGHEN, JSC

MUSA DATTIJO MUHAMMAD, JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

EJEMBI EKO, JSC

SIDI DAUDA BAGE, JSC


BETWEEN

DR. SAMPSON UCHECHUKWU OGAH
-SC.717/216
-SC.719/ 016

AND

SIR FRIDAY NWANOZIE NWOSU
                                                           -SC.739/2016                                                                (APPELLANTS)

AND

DR. OKEZIE VICTOR IKPEAZU
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
SIR FRIDAY NWANOZIE NWOSU
-SC.717/2016

AND

PEOPLES DEMOCRATIC PARTY (PDP)
DR. OKEZIE VICTOR IKPEAZU
INDEPENDENT NATIONAL ELECTORAL
SIR FRIDAY NWANOZIE NWOSU
-SC.719/2016

AND

DR. SAMPSON UCHECHUKWU OGAH
PEOPLES DEMOCRATIC PARTY (PDP)
DR. OKEZIE VICTOR IKPEAZU
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
SIR FRIDAY NWANOZIE NWOSU
-SC.739/2016
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Originating Summons – When the adoption of the originating summons procedure will be inappropriate

This Court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the Court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons. See Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC, Doherty v. Director of SSS & Anor v. Agbakoba (1999) 3 NWLR (Pt. 595) 425. Per MUHAMMAD, JSC. read in context

B. APPEAL
2. Grounds of Appeal – How grounds of appeal can stand on their own without particulars for support
Whether the absence of particulars will render a ground of appeal incompetent

The principle must be restated that grounds of appeal need not necessarily have particulars in their support. The grounds may stand on their own. Learned senior counsel to the Appellant’s reliance on the earlier decision of this Court in Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) is very apposite. At page 199 of the report the Court held as follows:-

“Learned Respondent’s counsel has urged the discountenance of the other grounds… Learned counsel must be reminded that grounds of appeal may stand on their own. Once they represent Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate Court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent see Prince (Dr.) B. A. Onafowokan and 2 others v. Wema Bank Plc and 2 others NSCQLR volume 46 (2011) 181 SC (2011) 12 NWLR (Pt. 1260) 24 and Best (Nig) Ltd v. Black Wood Hodge (Nig.) Ltd & 2 others NSCQLR volume 45 (2011) 845 (2011) 5 NWLR (Pt. 1239) 95.” Per MUHAMMAD, JSC. read in context

3. Interference with the Exercise of Discretion – When an appellate Court can interfere with the discretionary power of the Trial Judge
Circumstance where an appellate Court will not interfere with a lower court’s exercise of discretion

It must be restated that in exercising his discretion on a given issue, the Judge is bound by the rules governing the issue. It is not for him to act arbitrarily. Thus, where a trial Judge is not shown to have erred in principle his exercise of discretionary power should not be interfered with unless the appellate Court decides that the exercise has occasioned miscarriage of justice. See Mobil Oil Nig Ltd v. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254, Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129, Akinduro v. Iwakun (1994) 3 NWLR (Pt. 330) 106 and S.P.D.C. Nigeria Ltd v. Ojiowhor Monday Amadi & ors 2011 LPELR-3204 (SC). Per MUHAMMAD, JSC. read in context

C. COURT
4. Discretion of Court – The exercise of discretionary power and how discretionary power can be exercised by the Judge
Discretion of a Judge with respect to determination of any question of construction brought by originating summons

By Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, the trial Judge is not bound to determine any question of construction if in his opinion it ought not to be determined on originating summons. It is however glaring from the applicable rule that the Judge’s power thereunder is discretionary. As with all discretionary powers, it must be exercised judicially and judiciously, that is to say, the exercise is done on the basis of correct and convincing reasons. Per MUHAMMAD, JSC. read in context

D. ELECTION PETITION
5. Burden of Proof – Who the burden of proof is placed upon in an electoral matter
On whom lie the burden of proving that information given by a candidate in the affidavit or any document submitted by the candidate is false

I wish to merely add that either under Section 31(5) & (6) of the Electoral Act, 2010, as amended, or Section 182 (1)(j) of the 1999 Constitution, as altered, the burden of proof imposed by Sections 131 – 139 of the Evidence Act, 2011 is not displaced. Whoever asserts under Section 31(5) of the Electoral Act that “any information given by a candidate in the affidavit or any document submitted by that candidate is false” has the burden of proving his assertion in order to be entitled to judgment under Section 31(6) of the Electoral Act, 2010. Per EKO, JSC. read in context

E. ELECTORAL MATTERS
6. Political Party Primary – Who can file a suit where false documents have been submitted by a candidate
Who can institute an action in court to complain about the conduct of a party’s primaries

Sections 31(5), (6) and 87(9) the Appellant anchors his cause of action are herein under reproduced for ease of reference:-

“Section 31-

(5) Any person who has reasonable ground to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

“Section 87-

(9) 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 has not been complied with in the selection or nomination of a candidate of a political party election, may apply to the Federal High Court or the High Court of a State or F.C.T., for redress.”

By virtue of Section 31(5) and (6) (supra) “any person” not necessarily an aspirant who participated the primary election of the political party, may approach any of the three designated Courts thereunder and, on proof that the candidate has submitted to I.N.E.C. any false information indicating that he has fulfilled “all the constitutional requirements” for election into the office the candidate seeks, obtain from the Court an order disqualifying the candidate. Not “any person” however approaches any of the three designated Courts for the relief specifically provided for by virtue of Section 87(9) of the Electoral Act. Only an “aspirants” in the primary election in relation to which the candidate is alleged to have supplied the false statement may approach the Court to seek the order for the disqualification of the candidate. See Chief Ikechi Emenike v. P.D.P. (2012) LPELR-7802 (SC), P.D.P. and Anor v. Timpre Sylva & Ors (2012) LPELR-7814 (SC) and Aisha Jummai Alhassan & Anor v. Mr. Darius Dickson Ishaku & Ors (2016) LPELR-40083 (SC) and Ukachukwu v. P.D.P. (2014) LPELR-22115 (SC). Per MUHAMMAD, JSC. read in context

7. Political Party Primary – The provision of Section 87(9) of the Electoral Act, 2010 that provides for who can seek redress in court about the conduct and result of election
Who can institute an action in court to complain about the conduct of a party’s primaries

By the operation of Section 87(9) of the Electoral Act, 2010 as amended, any aspirant in a primary election of a political party who feels aggrieved by the conduct and result of the election has the right to approach the Court for redress which the 1st Respondent did. It is not the law that 1st Respondent must join in an earlier suit filed by the other aspirants either jointly or individually, granted that Appellant’s suit was first in time, which has not been proved to be the case and whether he was joined as a defendant in the action or not, provided he institutes his action before the conduct of the general election or, election for which the primary was to nominate a candidate. I hold the strong view that the right so conferred on an aspirant by Section 87(9) of the Electoral Act, 2010 as amended, cannot be taken from him – he won the 2nd highest votes at the primary. Per ONNOGHEN, JSC. read in context

E. EVIDENCE
8. Affidavit Evidence – What dispute in affidavit entails
What amounts to conflict in affidavit evidence

In Simon Ezechukwu & Anor v. I. O. C. Onwuka (2016) LPELR-26055 (SC) this Court held as to what conflict or dispute in affidavit evidence means thus: “It must outrightly be observed that learned Appellants’ counsel harbors serious misapprehension as to what conflict in affidavit evidence truly connotes. Conflict as a noun, see Oxford Advanced Learner’s Dictionary, 8th Edition, denotes a persistent situation of serious disagreement in opposing ideas or wishes which makes preference of one to the other difficult. In legal parlance, therefore, conflict means the persisting violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible for the Court, in the face of the disagreement, to prefer from the affidavits of both, the position of one to the other. In the case at hand, the evaluation of the affidavits of the contending parties done by the trial Court and indeed the re-evaluation of same by the lower Court have clearly shown that the conflict the learned Appellants’ counsel ascribes to them is non-existent. What has emerged from the exercise is the undisputed facts of service of hearing notice, Exhibit R, on the Appellants through their counsel and their being aware of the proceedings against them through the unchallenged and uncontroverted averments in the counter-affidavits filed by the Respondent in opposition to Appellants’ application. It is elementary principle of law that such unchallenged averments must be acted upon by the Courts as being true… Also, it is within the lawful province of Courts to examine documents if the resolution of the controversy between the parties before them so requires.” (Underlining supplied for emphasis). Per MUHAMMAD, JSC. read in context

9. Burden of Proof – The requirements to be proven by the Appellant in a non-payment of taxes case
On whom lies the burden of proving nonpayment of tax; How the burden is discharged

I agree with learned senior counsel to both Respondents that the Appellant having asserted that 1st Respondent’s tax declaration in Form CF001 is false has the burden of proving what he asserts. Addedly, the reliefs the Appellant seeks being declaratory, he succeeds on the strength of his case alone and not on the weakness of the case of the Respondents. The Appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the Respondents. See Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 367 and Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR. In Ukachukwu v. P.D.P. (supra), a case the lower Court relied on, this Court in approving the decisions of the Court of Appeal in Lanto v. Wowo (supra) and Ikuomala v Ige (supra) on proof of non-compliance with tax payment requirements, outlined that the four elements which the plaintiff must establish to be:

(a) That the person earned a taxable income during the period in question;

(b) That there was proper assessment of tax covering the period

(c) That notice of assessment was served on the person to pay his tax and he defaulted/and

(d) That the person failed to pay the tax assessed within the time prescribed for him to do so after the notice of the tax assessment. Per MUHAMMAD, JSC. read in context

10. Documentary Evidence – Duty of a party relying on documents in support of his case

It is settled law that a document meant to be interpreted or construed/constructed by the Court in an action initiated by Originating Summons has to be placed or exhibited before the Court to enable it exercise its powers of interpretation, particularly, when the document is not a statutory instrument in respect of which the Court is enjoined, by law to take judicial notice of. The above proposition is grounded on the principle of law that the best evidence of the contents of a document is the production of the document. lt is therefore not enough for a party to either quote excerpts from the document in question or present a synopsis of same in his affidavit in support of the Originating Summons. Per ONNOGHEN, JSC. read in context

11. Burden of Proof – The position of the law that he who asserts must prove
Whether he who assert must prove

…This submission does not reflect the position of the law, which is that he who asserts must prove. By Sections 131, 132 and 133 of the Evidence Act 2011, the burden of establishing the existence of any fact lies on the person who asserts those facts. By the assertion that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st Respondent to contest the election under false pretences i.e. that he had complied fully with the requirements of the law and the PDP guidelines. In other words, a crime is being imputed to the 1st Respondent. In such circumstances, the Appellant has the additional burden of proving his allegations beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. Per KEKERE-EKUN, JSC. read in context

12. Standard of Proof – The standard of proof in electoral forgery cases
The required standard of proof where the commission of crime is in issue in any proceedings

Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145. Per EKO, JSC. read in context

13. Burden of Proof/Standard of Proof – How the party that asserts must prove beyond reasonable doubt in forgery cases
Burden and standard of proof required for the offence of forgery

The other side of the argument is that, where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of Kakih v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine.

In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd Respondent knowing that it would be used fraudulently or dishonestly as genuine.”

To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which Onus must be discharged by the Appellant See: Nwobodo v. Onoh (1984.) 1 S. C. NLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145. Per BAGE, JSC. read in context

F. INTERPRETATION OF DOCUMENT
14. Construction of Documents – Cardinal rule of interpretation or construction of document

In the interpretation of a document or statutory provision, the Court is required to consider the document as a whole, and not to isolate individual provisions for interpretation. See: Amaechi v. I.N.E.C. (2009) 5 NWLR (Pt. 1080) 227. Per KEKERE-EKUN, JSC. read in context


LEAD JUDGMENT DELIVERED BY MUHAMMAD, JSC


This is an appeal against the decision of the Court of Appeal, Abuja Division, hereinafter referred to as the lower Court, in appeal No. CA/A/390/2016; Dr. Okezie Victor Ikpeazu v. Dr. Sampson Uchechukwu Ogah, delivered on the 18th August 2016, allowing 1st Respondent’s appeal and setting aside the judgment of the Federal High Court, hereinafter referred to as the trial Court dated 27th June, 2016 in Suit No. FHC/ABJ/CS/71/2016. A brief summary of the facts that brought about the appeal is hereinafter provided.

The Appellant and 1st Respondent are members of the 2nd Respondent. The two contested the latter’s primary election for the office of the Governor of Abia State. The primary election, which held on 8th December 2014, saw the emergence of the 1st Respondent as the winner. Appellant was the first runner up of the primary election having scored the second highest number of votes. Given the results of the primary election, 2nd Respondent sponsored the 1st Respondent as its candidate in the 2015 Abia State Gubernatorial Election.

Aggrieved by the emergence of the 1st Respondent as 2nd Respondent’s flag bearer for the Abia State governorship seat, the Appellant as plaintiff commenced, by an originating summons, Suit No FHC/UM/C5/94/2015 at the Federal High Court sitting at Umuahia on 26th March 2015 which suit, on being transferred to the Abuja Division of the Court was renumbered FHC/ABJ/CS/71/2015 against the 1st, 2nd and 3rd Respondents. The 4th Respondent applied to and was made a party by order of Court.

Appellant’s claim, as contained in his amended originating summons, is two pronged. Firstly, he asserts, 1st Respondent’s participation in the 2nd Respondent’s primary election of 8th December 2014 and his subsequent nomination as the party’s flag bearer in the 2015 Abia State Gubernatorial Election, without lawful personal income tax certificate and/or any lawful exemption from the payment of the tax, constitutes a breach of Article 14(a) in Part IV of the 2nd Respondent’s (P.D.P.) Electoral Guidelines and Constitution. The breach, it is urged, vitiates 1st Respondent’s participation in 2nd Respondent’s primary election of 8th December 2014 and his emergence as the party’s candidate for the 2015 Abia State Gubernatorial Election. This leg of the claim articulated in issues 1, 2, 3, 4, 5, 6 and 7 of the amended originating summons, the Appellant asserts, is justiciable under Section 87(9) of the Electoral Act 2010 as amended.

The 2nd leg of Appellant’s claim is contained in issues 6(1), 6(ii) (a) – (f) of his amended originating summons. He contends therein that quite apart from the breach of the 2nd Respondent’s Constitution and Electoral Guidelines occasioned by the non-availability of 1st Respondent’s valid Personal Tax Certificate at the time of the primary election, the false information supplied by the 1st Respondent regarding his Personal Income Tax in I.N.E.C. form CF001 duly completed and signed by him also vitiates his candidature in the Abia State 2015 Gubernatorial Election. The Appellant hangs this part of his claim on Section 31(5) and (6) of the Electoral Act 2010 as amended.

On the Court’s positive determination of the foregoing issues, the Appellant as plaintiff prayed the trial Court several declaratory and injunctive orders to disqualify the 1st Respondent from being the 2nd Respondent’s flag bearer at the 2015 Abia State Gubernatorial Election and, being the first runner up in the party’s primary election, to declare him the 2nd Respondent’s lawful flag bearer in the election.

Various affidavits with their annextures and a written address supported the amended originating summons.

In opposition to Appellant’s claim, the Respondents filed their respective counter affidavits with various annextures thereto as well as notices of preliminary objections challenging the competence of the originating summons particularly on the ground but not limited to the inappropriateness of Appellant’s resort to the originating summons procedure given the hostility of the facts on which the claim is to be determined. They also filed their written address in opposition to the amended originating summons.

The trial Court overruled all the objections the Respondents raised, found merit in Appellant’s claim and granted same.

Dissatisfied with the decision of the trial Court, the 2nd defendant thereat, now 1st Respondent, appealed to the lower Court on a notice containing ten grounds: The Court, in its considered judgment dated 18th August, 2016, allowed the appeal and set-aside the decision of the trial Court.

Aggrieved by the decision of the lower Court, the plaintiff at the trial Court has appealed to this Court against same on his notice filed on 5th September 2016 as amended.

Be it noted that the only extant briefs in the appeal are those of the Appellant, the 1st and 2nd Respondents. Even though the 3rd Respondent purports to have filed a brief, argument have not been urged in the brief, being a Respondent’s in support of the lower Court’s judgment. The 3rd Respondent relied on the decision of this Court in Hope Udozinma v. Osita Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 at 101 in preferring to be neutral. Mr. A. Ozioko, Esq. learned counsel for the 4th Respondent, on the other hand, having applied to withdraw their brief has had same struck out.

I shall outrightly consider arguments in the 1st and 2nd Respondents’ briefs in support of their notices of preliminary objection.

1st Respondent’s preliminary objection limited to the competence of grounds 2 and 7 of Appellant’s notice of appeal dated and filed on 8th September 2016 he asserts to be the extant notice. Instead of providing separate particulars of error for his 2nd and 7th grounds of appeal, it is submitted, the Appellant adopted for these grounds the particulars for his 5th and 11th grounds respectively. Since the finding each of the four grounds seek to attack in the lower Court’s judgment is different, learned senior counsel to the 1st Respondent further submits, each ground must have such particulars of error relevant to the finding the ground of appeal it supports challenges. It follows that the particulars of grounds 2 and 7 in the Appellant extant notice are unrelated to the grounds of appeal they are suppose to support. Accordingly, it is contended, the incompetent particulars must be struck out. Relying on Egbirike v. State (2014) 1-2 SC (Pt. 1) 1 at 13, Globe Fishing Ltd v. Coker (1990) 11-12 SC 80 and Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 527, learned senior counsel to the 1st Respondent further contends that since a ground of appeal without its particulars is incompetent, Appellant’s grounds 2 and 7 deserve to be struck out as well.

Further relying on Lagos State Water Corporation v. Samakori Construction (Nig.) Ltd (2011) 12 NWLR (Pt. 1262) 569 and Sken Consult v. Ukey (1981) 1 SC 6 at 9, and Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1518) 38, learned senior counsel submits that only competent grounds of appeal give rise to competent issues for the determination of an appeal. Once the Court strikes out grounds 2 and 7 of the Appellant’s extant notice of appeal, it is contended, it will lack the jurisdiction to set-aside the lower Court’s findings to which the struck out grounds relate. Yet the two grounds, 2 and 7, it is submitted, are very crucial complaints on the lower Court’s findings on Appellant’s indiscretion in commencing the instant suit by an originating summons and his failure to present the P.D.P. Electoral Guidelines he seeks interpretation of at the trial Court respectively. In the absence of the two complaints, it is argued, the entire appeal becomes academic. This Court, learned senior counsel to the st Respondent submits, does not proceed on hypothetical questions and should accordingly decline jurisdiction to determine the moot appeal.

In the 2nd Respondent’s brief the competence of grounds 1, 2, 3, 8, 9, 10, 11, 12 13, 14, 15, 16, 17, 18, 19, 22, 23 and 24 are challenged being grounds of, at most, mixed law and fact filed without the leave of Court. Issues 1, 4, 6, 7 and 9 distilled from the incompetent grounds being equally incompetent, it is contended, should be struck out. Grounds 1, 2 and 3 of Appellant’s amended notice of appeal, it is submitted, particularly challenge the lower Court’s finding as to the unsuitability of the originating summons procedure the Appellant adopts to facilitate his claim. It is impossible for this Court to determine whether or not the instant proceeding is hostile without a thorough examination of the facts in the affidavits and counter affidavits of parties. Having found the proceedings to be hostile by its examination of the various affidavits and documents, learned senior counsel submits, the lower Court’s finding can only be tested by equally examining the facts in parties’ affidavits and accompanying documents. The task, learned senior counsel submits, is a question of mixed law and fact.

All the other grounds in Appellant’s extant notice of appeal, except grounds 25, 26, 27, 28 and 29, are also grounds of mixed law and fact. The Appellant, it is submitted, did not acquire the leave of either the lower Court or this Court in respect of these grounds. Neither the grounds nor issues 1, 4, 6, 7 and 9 distilled from the grounds are competent. By the combined effect of Section 233 (1), (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is contended, all the grounds for which the law requires that leave be sought and had and same has not been done, learned senior counsel insists, both the grounds and the incompetent issues distilled from the grounds, must be discountenanced. Learned senior counsel supports his position with Afolabi v. The State (2013) NWLR (Pt. 1371) 292, Duwin Pharmaceutical & Chemical Co. Ltd v. Beneks Pharmaceutical and Cosmetics Ltd (2008) 4 NWLR (Pt. 1077) 326, Magit v. University of Agriculture (2005) 19 NWLR (Pt. 959) 211, Jev v. Iyortom (20 4) 14 NWLR (Pt. 1428) ALL FWLR (Pt. 330) 206.

Contained in Appellant’s reply briefs to the 1st and 2nd Respondents’ briefs are his response to the arguments on the preliminary objections the two Respondents proffered in their briefs.

1st Respondent’s preliminary objection, it is submitted, and wrongly, is based on the notice of appeal dated 29th August, 2016 abandoned by the Appellant instead of the extant notice dated and filed on 7th and 8th September, 2016 respectively as regularized by the Court’s order of 27th September 2016. 1st Respondent’s misconceived objection, on the authority of Tumbi v. Opawole (2000) 2 NWLR (Pt. 644) 275 and Owokoro v. Omina (1990) 3 NWLR (Pt. 136) 22, it is urged, be discountenanced.

In further response, it is submitted that particulars to grounds of appeal may be provided by reference as much as by incorporation. The most important requirement a ground of appeal, with or without, particulars must satisfy, is the clarity of the complaint it sets out to convey. Once the ground of appeal has satisfied this overriding requirement, it is submitted, it is competent. Relying on Order 8 Rule 2(4) of the Supreme Court Rules, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) and Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183 learned senior counsel submits that the grounds of appeal can exist by themselves without particulars once they make sense, lucidly stating Appellant’s complaints and the Respondent is not misled. Furthermore, the two grounds of appeal 1st Respondent purports to challenge, it is submitted, raise very fundamental points of law for which consideration alone this Court has maintained it is prepared to proceed on the determination of appeals notwithstanding any procedural lapse cited that will otherwise abort such hearing. The lower Court, it is submitted, has held Appellant’s amended originating summons to be incompetent and declined jurisdiction on the basis of the hostile proceedings the process has generated. This being a quasi jurisdictional issue, it is argued, may be raised even orally because of the fundamentality of the issue. Secondly, the Appellant, by virtue of his 7th ground, seeks an authoritative interpretation by the Court of Section 31(2) and (6) of the Electoral Act vis – à – vis Sections 177 and 182 of the 1999 Constitution (as amended). Assuming without conceding that 1st Respondent’s objection succeeds, learned senior counsel urges, the novelty of the issues the appeal raises justifies that the objection be ignored. Reliance has been put on Egbirike v. State (2014) 1-2 SC, Globe Fishing Ltd v. Coker (1990) 11-12 SC 80 and Asogwa v. P.D.P (2013) 7 NWLR (Pt. 1353) 207. Concluding learned senior counsel submits that the appeal that throws up for the Court’s determination such fundamental issues cannot be academic. 1st Respondent’s objection which borders on technicality, it is urged, be ignored in keeping with the principle enunciated by this Court inter-alia in Uwazurike v. A-G Federation (2013) 10 NWLR (Pt. 1361) 105, Omoju v. F.R.N. (2000) 7 NWLR (Pt. 1085) 38 and Egbo v. Agbara (1997) 1 NWLR (Pt. 481) 293.

2nd Respondent’s preliminary objection against grounds 1, 2 and 3 in Appellant’s amended notice of appeal, it is also submitted, must be ignored. An examination of these grounds shows them as Appellant’s challenges to the lower Court’s grasp of the law as to what order the Court makes when proceedings pursuant to an originating summons become hostile. Appellant’s grudge is on the lower Court’s order striking the amended originating summons instead of ordering pleadings on same. Relying on Umanah (JNR) v. N.D.I.C. (2016) 16 NWLR (Pt. 1533) 487, Agbakoba v. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 484 and Adeyelu v. Ajagungbade (2007) 14 NWLR (Pt. 1033) 1 at 8, learned senior counsel contends the grounds are grounds of pure law.

My lords, learned senior counsel to the 1st and 2nd Respondents have argued that because some of the grounds to which their objections relate are grounds of facts and/or mixed fact and law and are filed without the necessary leave of Court the grounds being incompetent must be discountenanced; that a ground of appeal without relevant particulars of error thereto in support is similarly incompetent, and that all issues distilled from all the incompetent grounds of appeal being incompetent do not also avail the Appellant. The principle must be restated that grounds of appeal need not necessarily have particulars in their support. The grounds may stand on their own. Learned senior counsel to the Appellant’s reliance on the earlier decision of this Court in Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) is very apposite. At page 199 of the report the Court held as follows:-

“Learned Respondent’s counsel has urged the discountenance of the other grounds… Learned counsel must be reminded that grounds of appeal may stand on their own. Once they represent Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate Court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent see Prince (Dr.) B. A. Onafowokan and 2 others v. Wema Bank Plc and 2 others NSCQLR volume 46 (2011) 181 SC (2011) 12 NWLR (Pt. 1260) 24 and Best (Nig) Ltd v. Black Wood Hodge (Nig.) Ltd & 2 others NSCQLR volume 45 (2011) 845 (2011) 5 NWLR (Pt. 1239) 95.”

The objection raised against grounds 2 and 7, in the light of the foregoing principle, must thus fail. One is satisfied that the two grounds and indeed the issues distilled from them are consistent with Order 8 Rule 2(4) of the Rules of this Court in the sense that they are self explanatory leaving no one who reads them in doubt as to the shortcomings in the judgment of the lower Court they address and by virtue of which they seek interference of this Court.

Beside grounds 2 and 7 in the Appellant’s extant notice of appeal, there are others, notably 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 19, 22, 23 and 24 which relate to the application of Section 31(4), (5) and (6) of the Electoral Act to Exhibit A, a tax document. This is certainly a complaint that is within the province of the judge instead of the jury. The complaint raised in these grounds dwell in what the law is in relation to particular fact and is determinable by a Rule of Law. Though in the actual sense it is a question of fact since, however, answers to the question is determinable only by the judge, a ground of appeal that raises such a complaint or question is one of law. See Anoghalu v. Oraelosi (1999) 10-72 C 1.

Assuming without conceding that the objections of either or both Respondents are found to be well taken this appeal will still endure by virtue of the other grounds in the Appellant’s extant notice against which no objection has been raised and sustained. Issues distilled from the untainted grounds will equally prevail. I agree with learned senior Appellant’s counsel that the fundamentality of the surviving issues as well as the justice of the instant case warrant the consideration of the arguments of both sides, as constituted, in the determination of the real issue in controversy between the parties. It is for this added reason that the unmeritorious objections of both Respondents are further discountenanced. See Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 and Asogwa v. P.D.P. (2013) 7 NWLR (Pt. 1353) 207 at 257. Now to the appeal.

The issues distilled by the Appellant as having arisen for the determination of his appeal read:-

“1. Whether the Justices of the Court of Appeal were right when they held that the Appellant’s suit was wrongly initiated vide Originating Summons having regards to facts and circumstance of the case. (Encompassing Grounds 1, 2 and 3 of the Amended Notice of Appeal).

2. Whether failure to attach as Exhibit the P.D.P. Electoral Guideline containing Article 14 and 14A of the Peoples Democratic Party Electoral Guideline 2014, quoted in the affidavit in support of the originating summons and written address of the Appellant and admitted by the Respondent is fatal to the suit of the Appellant and led to a miscarriage of justice for the Appellant. (Encompassing Grounds 4 and 5 of the Amended Notice of Appeal).

3. Whether the learned Justices of the Court of Appeal were right in their finding that the requirements of Section 31(2) vis-à-vis Section 31(5) & Section 31(6) of the Electoral Act, 2010 (as amended) must be considered within the narrow prism of Section 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). (Encompassing Grounds 6 and 7 of the Amended Notice of Appeal).

4. Whether the learned Justices of the Court of Appeal were right in holding that the Appellant did not discharge the burden of proof placed on the Appellant in a suit brought pursuant to Section 31 of the Electoral Act 2010 (as amended) and that the burden of proof by Section 31(5) of the Electoral Act 2010 (as amended) is on the Appellant and thereby refused to follow the decision of this Court in Ekeagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) 417 on the burden of proof in a suit brought pursuant to Section 31(5) of the Electoral Act 2010 (as amended). (Encompassing Ground 8 of the Amended Notice of Appeal).

5. Whether the learned Justices of the Court of Appeal were right in their finding on the tax receipts attached to the 1st Respondent’s affidavit in I.N.E.C. Form CF001 having regards to the facts and circumstance of the case. (Encompassing Ground 29 of the Amended Notice of Appeal).

6. Whether the learned Justices of the Court of Appeal were right in their findings that the 1st Respondent did not give false information in I.N.E.C. Form CF001 and not liable to be so disqualified and setting aside the Appellant reliefs and the consequential reliefs having regards to the facts and circumstances of this case. (Encompassing Grounds 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 22 and 23 of the Amended Notice of Appeal).

7. Whether the learned Justices of the Court of Appeal were right in their findings that the 1st Respondent and her candidate were denied fair hearing by the learned trial Judge. (Encompassing Ground 16 of the Amended Notice of Appeal).

8. Whether the learned Justices of the Court of Appeal were right in their finding that on the rationale behind Section 31 of the Electoral Act, 2010 (as amended) having regards to the facts and circumstances of this case. (Encompassing Grounds 20 and 21 of the Amended Notice of Appeal).

9. Whether the learned Justices of the Court of Appeal were right in setting aside the consequential Reliefs and Orders granted by the trial Judge having regards to the facts and circumstances of this case. (Encompassing Ground 24 of the Amended Notice of Appeal).

10. Whether the Court below was right in holding that there was no abuse of Court process entailed in the 1st Respondent filing the appeal and pursuing the appeal simultaneously with Suit No. HOS/52/2016. (Encompassing Grounds 25, 26 and 27 of the Amended Notice of Appeal).”

On his part, the 1st Respondent has formulated five issues in his brief as follows:-

“i. Considering the facts and circumstances of this case, whether the lower Court was right to have held that the suit before the trial Court was wrongly commenced by Originating Summons. – Grounds 1, 2 and 3.

ii. Considering the claim in the Originating Summons filed by the Appellant at the trial Court, whether the lower Court was correct to have held that the failure of the Appellant to present the P.D.P. electoral guidelines before the said Court was fatal to his case. – Grounds 4 and 5.

iii. In view of the provision of Section 31 of the Electoral Act whether the lower Court was correct to have held that the Section relates to constitutional requirements for elections into office. – Grounds 6 and 7.

iv. Considering the totality of the evidence led at the trial Court, whether the lower Court was correct to have set aside all the orders made by the lower Court. – Grounds 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 29.

v. Was the lower Court correct in refusing Appellant’s objection on the basis of abuse of Court process. – Grounds 25, 26 and 27.”

At pages 6-7 of the 2nd Respondent’s brief, the following six issues have presented as calling for resolution in determining the appeal:

“1. Whether having regard to the real matter in contest between the parties in the suit which gave rise to this appeal, the learned Justices of the Court of Appeal were correct when they held that Originating Summons was not the appropriate process for commencing the suit, Grounds 1, 2 and 3.

2. Whether having regard to the Appellant’s reliance on Part IV Article 14(a) of the P.D.P. Electoral Guidelines, 2014 and the pronouncement of the trial Judge based on the 2013 version of the P.D.P. Guidelines, the learned Justices of the Court of Appeal were correct when they held that the failure of the Appellant to Exhibit the 2014 Guidelines was fatal. Grounds 4 and 5.

3. Whether the learned Justices of the Court of Appeal were correct when they held that Section 31(6) of the Electoral Act, 2010 (as amended) can only be activated where the information submitted pursuant to Section 31(2) of the same Act are founded on falsification of qualifying and disqualifying factors within the purview of Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Grounds 6, 7, 20 and 21.

4. Whether the learned Justices of the Court of Appeal were correct when they held that the Appellant who sought a declaration that the tax documents submitted by the 1st and 2nd Respondents to the 3rd Respondents were false documents had the burden to establish that fact by the requisite standard of proof having regard to the circumstances of the case. Grounds 8 and 19.

5. Whether the learned Justices of the Court of Appeal were correct when they set aside the decision of the Judge disqualifying the 1st Respondent as candidate of the 2nd Respondent for the Abia State Governorship Election and the consequent return of the Appellant as the duly elected Governor of Abia State on the premise that the 1st Respondent gave false information to the 3rd Respondent on the matter of payment of his taxes in breach of Section 31 of the Electoral Act, 2010 (as amended) and 2014 P.D.P. Electoral Guidelines. Grounds 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23 and 24.

6. Whether the learned Justices of the Court of Appeal were correct when they refused to strike out the appeal filed earlier than Suit No. HOS/52/2016 said to embody the same reliefs and whose competence was the subject matter of a Ruling yet to be delivered. Grounds 25, 26 and 27.”

In the course of his oral submissions in amplification of arguments in the Appellant’s brief, Appellant’s learned senior counsel, observed, and correctly too, that the issue the appeal raises is very narrow being this: Whether the lower Court is right that the facts on which the Appellant seeks the interpretation and application of Sections 87(9) and 31(5) and (6) of the Electoral Act 2010 are hostile making the commencement of Appellant’s suit by originating summons inappropriate and whether Sections 177 and 182 of the 1999 Constitution (as amended) restrict the import and application of Section 31(5) and (6) of the Electoral Act. In addition to these specific concerns of learned senior Appellant counsel, which are provided for in Appellant’s 1st and 3rd issues, the 4th, 5th, 6th and 9th issues may, for wholesomeness, also inform the determination of the appeal.

On the 1st issue, learned senior counsel to the Appellant, Alex A. Izinyon, submits that Order 3 Rule 6 of the Federal High Court Rules 2009 allows the Appellant to approach the Court by originating summons for construction of the Sections 31(5), (6) and 87(9) of the Electoral Act and the declaration in respect of his claim. The lower Court is wrong, it is contended, to have related the form of commencement of action provided for by the Rules of Court to the jurisdiction of the Court. The lower Court’s finding that the originating summons is not the proper procedure to commence his action does not justify the Court’s striking out the suit. The law is settled that having decided that Appellant’s claim rests on disputed facts pleadings should have been ordered and the case remitted to the trial Court for hearing. The lower Court’s order striking out Appellant’s suit instead having occasioned miscarriage of justice, it is urged, should be set aside. He relies on Adeyelu II v. Ajagungbade III (2007) 14 NWLR (Pt. 1053) 1 and Emezi v. Osuogwu (2005) 12 NWLR (Pt 939) 340.

Further arguing the appeal, learned senior Appellant’s counsel contends that the trial Court is right to have held that the facts in support and opposition of Appellant’s claim are not hotly in dispute to warrant the suit to be heard on the pleadings. The lower Court’s contrary finding in that regard that has neither legal nor factual basis, it is contended, should be discountenanced.

On the 1st issue, learned senior counsel to the 1st Respondent, Chief Wole Olanipekun, submits that Appellant’s case which involves examination of avalanche of averments and documents can hardly be determined in the summary manner the Appellant insists it can. The suit is not about the determination of short questions of construction with fairly settled facts as the basis for the determination of the claim. Instead, with Appellant’s claim generating such hostile dispute in facts, the lower Court is, learned Senior counsel submits, right in its finding that the originating summons is unsuitable for the purpose for which it is employed by the Appellant. This principle, is submitted, has been held inter-alia in National Bank of Nigeria Ltd v. Lady Alakija & Anor (1978) 9-10 SC 59 at 71 and Asogwa v. P.D.P. (2013) 7 NWLR (Pt. 1353) 207 at 258.

The lower Court is however right after finding Appellant’s originating summons unsuitable, being the penultimate Court, it is contended, to proceed to resolve all issues before it to enable the apex Court the benefit of its opinion on the issues. The lower Court’s refusal to remit the suit for same to be decided on the pleadings, it submitted, finds support in Section 15 of the Court of Appeal Act and Wassah v. Kara (2014) LPELR-24212 (SC). Learned senior counsel urges that the issue be resolved against the Appellant.

Onyechi Ikpeazu SAN for the 2nd Respondent also restated the principle pertaining to the originating summons procedure and as forcefully defends the lower Court’s application of the principle to the instant case.

Assuming without conceding that the lower Court is wrong in its conclusion that Appellant’s amended originating summons is unsuitable for his case, it is similarly asserted in conclusion, the Court’s consideration of Appellant’s case and a decision on the merit thereafter, Appellant’s complaint that the decision of the Court, which he failed to establish to have occasioned injustice, be set-aside, does not avail him. Citing the decisions in Grosvenor Casinos Ltd v. Ghasson Hallaoui (2009) 10 NWLR (Pt. 1149) 309, Odukwe v. Ogunbiyi (1998) 6 SCNJ 102 at 113 and Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156 at 163, learned senior counsel to the 2nd Respondent submits that the issue be resolved against the Appellant.

On the 2nd preferred issue, learned senior counsel to the Appellant submits that the lower Court’s decision placing the burden of proof on the Appellant rather than on the 1st Respondent to disprove the allegation of falsehood against him runs contrary to the clear words of Section 31(5) and (6) of the Electoral Act as well as the decision of the apex Court in Ekeagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) 411. By the wording of Section 31(5) of the Electoral Act, it is contended, only the initial burden of proof that the Exhibits A, B, C, D, E, E1 and H are false is placed on the Appellant. By placing the documents before the Court, it is further contended, the Appellant has discharged his burden. Section 31 of the Electoral Act, learned senior counsel submits, is a novel provision which requires aspirants to highly exalted position to be blameless, free from suspicion and above board. The decision in Ekedgbara v. Ikpeazu has neatly circumscribed the burden each of the parties in the instant matter is to discharge and the lower Court’s decision perverting the age old principle is perverse. The documents the Appellant anchors his claim on, ex-facie, tell the lies on them. Under the law, further submits learned senior counsel, oral evidence on an aspect of case proof of which a party has tendered a document is inadmissible. Reliance is placed inter-alia on Agbakoba v. I.N.E.C. (2008) 18 NWLR (Pt. 19) 489, Attorney General of Bendel State v. U.B.A. (1986) 4 NWLR (Pt. 37) 547 at 563 and B. Manfag (Nig.) Ltd v. M/S.O.I. Ltd (2007) 14 NWLR (Pt 1053) 109.

The lower Court, it is submitted, wrongly relied on the decisions in Lanto v. Wowo (1999) 7 NWLR (Pt. 610) 227 at 230 and Ukachukwu v. P.D.P. (supra) in insisting that the Appellant has failed to prove his case. It is prayed that the issue be resolved against the Respondents.

Responding to the foregoing, learned senior counsel to the 1st Respondent submits that the trial Court by its decision in favour of the Appellant clearly violates the established principle on burden of proof under Sections 131-136 of the Evidence Act 2011. Not surprisingly, the lower Court at page 2799 of the record, submits learned senior counsel, has rightly dwelt on the devastating effect the misplacement of the burden of proof has on the judgment of the trial Court. This Court, it is further submitted, has unequivocally maintained that whether the pleadings are positive or negative, the initial burden is on the plaintiff who asserts a claim and entitlement to declaratory reliefs. The misplacement of the burden, it is contended, is untenable in law. Learned senior counsel finds support inter-alia in Arase v. Arase (1981) 5 SC 33 at 51-52, Imana v. Robinson (1979) 3-4 SC 1, C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 and Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419 at 463 and submits that on this alone this appeal must fail.

Further arguing the issue, learned senior counsel for the 1st Respondent submits that Appellant’s claim is founded on the falsehood inherent in the declaration of the 1st Respondent in his Form CF001. It does not matter, it is contended, that Appellant’s claim is pursuant to Section 31 of the Electoral Act and/or Article 14 of the P.D.P. Appellant only succeeds, it is further argued, if he meets the prerequisites of proof of such allegations. The lower Court’s insistent that these prerequisites be met by the Appellant, as repeatedly specified by this Court in many of its decisions, beyond reproach. Learned senior counsel relies on Lanto v. Wowo (supra) Ikuomala v. Ige (1992) 4 NWLR (Pt. 236) 517 as well as Ukachukwu v. P.D.P. (supra) wherein the Supreme Court approved the former two decisions.

Concluding, learned senior counsel submits that the trial Court is bound by the decisions of the apex Court and having failed to abide by them, the lower Court’s decision setting aside the perverse decision of the trial Court deserves to persist. Learned counsel supports his contention with the cases of Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 and Onuoha v. Okafor (1993) 23 SCNLR 244 and urges that the issues be resolved against the Appellant.

Learned senior counsel for the 2nd Respondent Dr. Onyechi Ikpeazu replicated the foregoing submissions even more forcefully in the 2nd Respondent’s brief. It appears unnecessary to repeat the submissions here.

My lords, the instant suit is one fought on the affidavit evidence proffered by both sides. The learned trial Judge on evaluating the affidavit evidence along with the annextures thereto and finding no material conflict therein found merit in Appellant’s case and obliged him all the reliefs claimed. Aggrieved by the decision, the 1st Respondent herein appealed to the lower Court and entreated the Court, inter-alia, to resolve in his favour the 4th issue, his very preferred 1st issue in this appeal, for the determination of the appeal which, on being redrafted by the Court, reads:-

“Whether having regard to the facts circumstances of this case, the learned trial Court was right in holding that the action can be determined under the originating summons procedure (Grounds 5, 20, 24, 25, 30 and 49).

In resolving the issue, the lower Court at pages 2718-2719 volume 4 of the record of appeal held as follow:

“It is very clear to me that the very nature of the issues of fact posed to the learned trial Judge made it imperative for him to have set the case down for hearing by writ of summons. Every document in contention would have been tendered by the maker, who would be tested under the fire of cross-examination as to the veracity or otherwise of the contents of the information published by the witness. The learned trial Judge engaged in cloistered justice by reconciling several pages of affidavit and counter affidavit…

Thus, the questions submitted for determination were serious contentious facts. Pleadings should have been ordered in this case.” (Underlining supplied for emphasis).

With due deference, the foregoing does not represent the correct procedure on the issue.

The task before the lower Court demands answers as to whether the trial Court’s decision in favour of the Appellant is arrived at in spite of the likelihood of or actual conflict in the affidavits of the contending parties. By Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009, the trial Judge is not bound to determine any question of construction if in his opinion it ought not to be determined on originating summons. It is however glaring from the applicable rule that the Judge’s power thereunder is discretionary. As with all discretionary powers, it must be exercised judicially and judiciously, that is to say, the exercise is done on the basis of correct and convincing reasons.

It must be restated that in exercising his discretion on a given issue, the Judge is bound by the rules governing the issue. It is not for him to act arbitrarily. Thus, where a trial Judge is not shown to have erred in principle his exercise of discretionary power should not be interfered with unless the appellate Court decides that the exercise has occasioned miscarriage of justice. See Mobil Oil Nig Ltd v. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254, Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129, Akinduro v. Iwakun (1994) 3 NWLR (Pt. 330) 106 and S.P.D.C. Nigeria Ltd v. Ojiowhor Monday Amadi & ors 2011 LPELR-3204 (SC).

This Court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the Court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons. See Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1 SC, Doherty v. Director of SSS & Anor v. Agbakoba (1999) 3 NWLR (Pt. 595) 425. In the case at hand where the learned trial Judge in the exercise of his discretion under Order 3 Rule 8 of the Rules of Court proceeded on Appellant’s amended originating summons, the right procedure is for the lower Court to re-appraise the affidavits and documents of both sides and infer whether or not the facts therein are in such dispute or conflict that a decision one way or another is impossible. If the facts remain in conflict, pleadings are ordered and the matter proceeds accordingly.

In Simon Ezechukwu & Anor v. I. O. C. Onwuka (2016) LPELR-26055 (SC) this Court held as to what conflict or dispute in affidavit evidence means thus:-

“It must outrightly be observed that learned Appellants’ counsel harbors serious misapprehension as to what conflict in affidavit evidence truly connotes. Conflict as a noun, see Oxford Advanced Learner’s Dictionary, 8th Edition, denotes a persistent situation of serious disagreement in opposing ideas or wishes which makes preference of one to the other difficult. In legal parlance, therefore, conflict means the persisting violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible for the Court, in the face of the disagreement, to prefer from the affidavits of both, the position of one to the other.

In the case at hand, the evaluation of the affidavits of the contending parties done by the trial Court and indeed the re-evaluation of same by the lower Court have clearly shown that the conflict the learned Appellants’ counsel ascribes to them is non-existent.

What has emerged from the exercise is the undisputed facts of service of hearing notice, Exhibit R, on the Appellants through their counsel and their being aware of the proceedings against them through the unchallenged and uncontroverted averments in the counter-affidavits filed by the Respondent in opposition to Appellants’ application. It is elementary principle of law that such unchallenged averments must be acted upon by the Courts as being true…

Also, it is within the lawful province of Courts to examine documents if the resolution of the controversy between the parties before them so requires.” (Underlining supplied for emphasis).

In the case at hand Appellant’s claim is founded on the falsehood that lies in 1st Respondent’s declaration in Form CF001 presented to I.N.E.C. on his emergence as the winner of the 2nd Respondent’s primary election for the office of the Governor of Abia State. It is Appellant’s case that 1st Respondent did not pay the correct tax and that the tax receipts and tax clearance certificate annexed to Form CF001 are false statements in respect of the actual tax the 1st Respondent paid. Annexed to the affidavit in support ot Appellant’s amended originating summons are inter-alia Exhibits A, B, C, D, E – E1, the tax receipts, tax clearance certificate and 1st Respondent’s letters of appointment.

I agree with learned senior counsel to both Respondents that the Appellant having asserted that 1st Respondent’s tax declaration in Form CF001 is false has the burden of proving what he asserts. Addedly, the reliefs the Appellant seeks being declaratory, he succeeds on the strength of his case alone and not on the weakness of the case of the Respondents. The Appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the Respondents. See Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 367 and Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR.

To succeed in his claim, therefore, the Appellant must, in the final analysis establish that the 1st Respondent never paid the tax he declared in Form CF001, Exhibit D, to have paid as evidenced by Exhibits A, B and C the tax receipts and tax clearance certificate respectively.

In Ukachukwu v. P.D.P. (supra), a case the lower Court relied on, this Court in approving the decisions of the Court of Appeal in Lanto v. Wowo (supra) and Ikuomala v Ige (supra) on proof of non-compliance with tax payment requirements, outlined that the four elements which the plaintiff must establish to be:

(a) That the person earned a taxable income during the period in question;
(b) That there was proper assessment of tax covering the period
(c) That notice of assessment was served on the person to pay his tax and he defaulted/and
(d) That the person failed to pay the tax assessed within the time prescribed for him to do so after the notice of the tax assessment.

An examination of the affidavit in support of Appellant’s amended originating summons reveals absolutely nothing in proof of the foregoing requirements. Content of such an affidavit that is bereft of the evidence to necessarily establish Appellant’s claim cannot be said to be in any enduring conflict with the averments in the counter-affidavit of the Respondent to justify an order that the matter be heard on the pleadings. Accordingly, the trial Court is right to have heard and determined the Appellant’s amended originating summons. The lower Court’s finding to the contrary on the suitability of the amended originating summons is, therefore, perverse. But that is not all. lt must further be determined whether the trial Court’s ultimate decision in favour of the Appellant is right.

The lower Court at page 2719, volume 4 of the record of appeal in keeping with correct practice enthused as follows;

“However, this is the penultimate Court and thereby enforce in abundance of caution to determine all issues in order to give the apex Court the benefit of our own opinion and thus expedite the course of justice, I will therefore not strike out the suit in…. but proceed to consider the appeal emanating from the suit on the merit.”
Great wisdom!

In its judgment, see pages 2747-2748, volume 4 of the record of appeal, in submitting to the authority of this Court, the lower Court insisted that the conditions the apex Court outlined for proof of failure to pay tax where the payment is a requirement must be met by claimant to warrant an indulgence. Ogunwumiji, JCA in the lead judgment concludes as follows:-

“The learned trial Judge in his judgment did not call on the plaintiff to prove allegation that the tax was not paid as and when due and there is no evidence in the affidavit in support of the originating summons to establish systematically the ingredients of proving that tax was not paid as and when due. There is therefore no basis for the lower Court to act on that issue of tax and prohibit the 2nd Respondent who genuinely won the primary election conducted by the Appellant.”

I cannot agree more. The two Courts below are bound by the decisions of this Court. The trial Court’s decision arrived at in favour of the Appellant, inspite of the paucity of evidence establish to his claim in the manner this Court outlined in Ukachukwu v. P.D.P. (supra), is perverse. The lower Court has done the needful by setting aside the negligent decision.

Inherent in the foregoing is the resolution of Appellant’s 1st issue in his favour and the 4th, 5th, 6th, and 9th issues against him.

It appears unnecessary to particularly consider Appellant’s 3rd issue as earlier suggested in determining the appeal. Facts still remain the fountainhead of the law. The application of Section 31(6) of the Electoral Act, 2010 as amended arises only sequel to the determination by a Court that the 1st Respondent has supplied to I.N.E.C, the 3rd Respondent, any false information either in his affidavit or any other document submitted to the latter for the purpose of being a candidate in the 2015 Abia State governorship election. Consequent upon Appellant’s failure to establish any false information contained in the affidavit or any document in relation to the payment of his tax submitted by the 1st Respondent, the lower Court is right, having found the trial Court’s finding to the contrary and the grant to the Appellant the reliefs he is not entitled to perverse, to have set-aside the unjust finding and unmerited reliefs.

On the whole, notwithstanding the resolution of the 1st issue in Appellant’s favour, the appeal however remains unmeritorious and is accordingly hereby dismissed. I fix the cost of the appeal at N500,000.00k (Five hundred thousand naira) to each of the 1st and 2nd Respondents to be paid by the Appellant.

APPEAL NO. SC. 719/2016

At the hearing of the three appeals it was particularly agreed that appeal No. 719/2016 shall abide the decision in appeal No. SC.717/2016. I so order.

APPEAL NO. SC. 739/2016

The Appellant herein was also an aspirant in the primary election of the 2nd Respondent that produced the 3rd Respondent as the party’s flag bearer in the 2015 Abia State gubernatorial election. At the primary election, Appellant scored 5 votes to the 487 and 103 votes scored by the 3rd and 1st Respondents respectively.

Dissatisfied by the outcome of the primary election, the Appellant commenced suit No. FHC/OW/CS/191/2015 challenging the qualification of the 3rd Respondent to participate in and be nominated the party’s flag bearer by virtue of the 2nd Respondent’s primary election that held on 8th December 2014. Appellant’s contention in the suit is that 3rd Respondent presented false tax clearance certificate, income tax receipts and information in the affidavit in support of his personal particulars submitted to I.N.E.C., the 4th Respondent herein. Having presented these false documents, which stand in breach of Article 14 of the P.D.P. Primary Election Guidelines 2014, the 3rd Respondent stands disqualified from contesting the 2nd Respondent’s primary election.

It is apparent that Appellant’s claim is on all fours as the claim pursued separately by the Appellant in appeal No. SC.717/2016 by virtue of the latter’s amended originating summons dated 2nd October 2015 but filed on 9th October in Suit No. FHC/ABJ/CS/71/2016. The Appellant herein asserts that Suit No. FHC/ABJ/CS/71/2016 commenced by the Appellant in appeal No. SC.717/2016, being subsequent to his suit in FHC/OW/CS/191/2015, is an abuse of the process of the Court. This is sequel to an order of the trial Court joining the Appellant herein as a party to the subsequent suit No. FHC/ABJ/CS/71/2016 commenced by the 1st Respondent herein which suit gave rise to appeal No.717/2016 distinct and separate from the instant appeal. Both appeals however emanate from the same decision of the lower Court in respect of the appeal filed thereat by the 3rd Respondent herein against the trial Court’s judgment in suit No. FHC/ABJ/CS/71/2016 filed subsequent to the one initiated by the Appellant herein.

The trial Court overruled the objection raised by the Appellant herein to the effect that the subsequent suit is an abuse of its process. The lower Court affirmed the trial Court’s finding in that regard. Further dissatisfied, the Appellant has appealed against the concurrent findings of the two Courts.

Appellant’s 3rd issue for the determination of his appeal that circumscribes his real dissatisfaction and on the basis of which his appeal is being determined reads:-

“Having regard to the fundamental and jurisdictional issues of incompetence of the originating summons and abuse of Court process by the 1st Respondent raised by the Appellant in the Court below, whether the Court of Appeal was right to dismiss the Appellant’s appeal as lacking in merit thereby refusing to grant the reliefs sought by the Appellant even after the Court below held that the two suits, i.e. Appellant’s suit and 1st Respondent’s latter suit ought to have been tried together.”

Appellant seems to have forgotten too easily the very law that gave him the platform to pursue the reliefs he does by virtue of his separate originating summons. Appellant’s claim smirks of falsehood which act, it is contended, disqualifies the 3rd Respondent from being the 2nd Respondent’s candidate at the primary election. The act of the 3rd Respondent, a breach of 2nd Respondent’s Constitution, Electoral Guidelines as well as Section 31(5) of the Electoral Act, it is asserted, entitles the Appellant to approach the Court for the reliefs he claims.

Sections 31(5), (6) and 87(9) the Appellant anchors his cause of action are herein under reproduced for ease of reference:-

“Section 31-

(5) Any person who has reasonable ground to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

“Section 87-

(9) 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 has not been complied with in the selection or nomination of a candidate of a political party election, may apply to the Federal High Court or the High Court of a State or F.C.T., for redress.”

By virtue ofSection 31(5) and (6) (supra) “any person” not necessarily an aspirant who participated the primary election of the political party, may approach any of the three designated Courts thereunder and, on proof that the candidate has submitted to I.N.E.C. any false information indicating that he has fulfilled “all the constitutional requirements” for election into the office the candidate seeks, obtain from the Court an order disqualifying the candidate.

Not “any person” however approaches any of the three designated Courts for the relief specifically provided for by virtue of Section 87(9) of the Electoral Act. Only an “aspirants” in the primary election in relation to which the candidate is alleged to have supplied the false statement may approach the Court to seek the order for the disqualification of the candidate. see Chief Ikechi Emenike v. P.D.P. (2012) LPELR-7802 (SC), P.D.P. and Anor v. Timpre Sylva & Ors (2012) LPELR-7814 (SC) and Aisha Jummai Alhassan & Anor v. Mr. Darius Dickson Ishaku & Ors (2016) LPELR-40083 (SC) and Ukachukwu v. P.D.P. (2014) LPELR-22115 (SC).

The Appellant in the instant appeal participated in the 2nd Respondent’s primary election of 8/12/2014 for the 2015 Abia State gubernatorial election. So did the Appellant in appeal No. SC.717/2016. Each of them has the right platform under Section 87(9) of the Electoral Act, the one independent of the other to seek the reliefs the law provides to an “aspirant” either of them having participated in the party primary election in respect of which result they are aggrieved. Following his application, the trial Court ordered that Appellant herein be joined in the suit commenced by the Appellant in appeal No. SC.717/2016. Appellant in the instant case needed not necessarily to have been a party in the suit subsequently commenced by the Appellant in Appeal No. SC. 177/2016 to obtain the reliefs he earlier approached the Court in his own suit. The lower Court’s finding that the amended originating summons of the Appellant’s in appeal No. SC. 717/2016 is not an abuse of process of the Court is, therefore, unassailable. Appellant’s germane issue in the appeal is accordingly resolved against him. The appeal being without merit, is hereby dismissed at a cost of N250,000.00k (Two hundred and fifty thousand Naira only) to the 2nd and 3rd Respondent each to be paid by the Appellant.

ONNOGHEN, JSC

I have had the benefit of reading in draft the lead judgment of my learned brother MUHAMMAD, JSC just delivered.

I agree with his reasoning and conclusion that the appeals are without merit and ought to be dismissed.

The facts relevant for the determination of the appeals have been stated in detail in the said lead judgment making it unnecessary for me to repeat them herein except as may be necessary to emphasis the point being made.

My learned brother has exhaustively dealt with the two relevant issues for the determination of appeal Nos. SC. 717/2016 and SC.719/2016 leaving me with little to say.

In SC.719/2 16, PDP was the Appellant before the lower Court and it appealed against the same judgment delivered by the trial Court on 27/6/16, while its co-defendant at the trial Court and the present 1st Respondent in SC.717/2016 filed a separate appeal. lt follows therefore that both SC.717/2016 and SC.719/2016 are appeals by the co-defendants who had a joint statement of defence at the trial Court but chose to file separate appeals.

I however wish to comment on the sub issue as to whether the P.D.P. Guidelines in relation to which the alleged breach was committed by 1st Respondent ought to have been exhibited before the Court for the purpose of interpretation or construction under the Originating Summons procedure. This aspect of the appeals on the decision of the lower Court is different from the issue as to whether Originating Summons is the appropriate mode of commencing the action in view of the alleged conflicting facts in issue.

It is settled law that a document meant to be interpreted or construed/constructed by the Court in an action initiated by Originating Summons has to be placed or exhibited before the Court to enable it exercise its powers of interpretation, particularly, when the document is not a statutory instrument in respect of which the Court is enjoined, by law to take judicial notice of. The above proposition is grounded on the principle of law that the best evidence of the contents of a document is the production of the document. lt is therefore not enough for a party to either quote excerpts from the document in question or present a synopsis of same in his affidavit in support of the Originating Summons.

ln relation to this sub-issue, the Court below at pages 2731-2732 of the record stated thus:-

”There was a good point raised by the Appellant to which while I scoured through the 1st Respondent’s brief I found no reply. The learned trial judge claimed he quoted and enforced the PDP Guidelines 2014, however he kept on making reference to the provisions only present in the 2010 Guidelines but absent in the 2014 Guidelines. His Lordship kept making references to the failure of the Appellant to pay his taxes “as when due” – a phrase markedly absent from the PDP Guidelines in force – 2014 – when the cause of action arose. Such deliberate or unknowing importation of strange phrases or clauses into an instrument to be constructed by the Court is the reason why there has always been necessity to attach said instrument to the Originating Summons particularly where the contents are not such where the Court is enjoined by law to take judicial notice of….”

I am in total agreement with the views expressed by the lower Court in the above quoted passage. This Court is, however, not to be understood as saying the contrary in view of our holding that the facts relevant for the determination of the Originating Summons are not violently in dispute as contended by the Respondents -1st and 2nd Respondents in particular.

As regards the merit of the appeals, it is clear and I agree with my learned brother MUHAMMAD, JSC that Appellant failed to establish that the tax he declared in Form CF001 Exhibit D, to have duly paid as contained in Exhibits A, B and C – Tax Receipts and clearance Certificates, respectively.

This Court has in a number of cases established four requirements that a plaintiff must satisfy when he intends to prove non-compliance with tax payments. These are:

(i) That the person earned a taxable income during the period in question;
(ii) That there was proper assessment of tax covering the period;
(iii) That notice of assessment was served on the person to pay his tax and he defaulted; and
(iv) That the person failed to pay the tax assessed within the time prescribed for him to do so after the notice of the tax assessment – see Ukachukwu v. P.D.P. (2014) 17 NWLR (Pt. 1435) 134 at 186.

It is not disputed that 1st Respondent was, at the time material to the payment of tax as evidenced in Exhibits A, B and C an Abia State Government employee and that the tax of such an employee is always deducted at source by the tax authority which has the duty to remit same to the government. It is also not in dispute that the tax paid by 1st Respondent was as assessed by the Tax Authority of Abia State. It is also on record that the explanation of Mr. J. C. Okoji, the tax official who issued and signed the Tax Clearance Certificate for the 1st Respondent as contained in his counter affidavit was never considered by the trial Court. In reaction to that, the lower Court, at page 2760 – 2761 of the record stated thus; inter alia:

“Throughout the enthusiastic analysis of the supposed false information on the tax documents, the learned trial judge was unwilling to consider the explanation in the counter affidavit sworn to by Mr. Okoji, the tax officer who signed the Tax Clearance Certificate. His Lordship opined that he was not obliged to consider it as it did not form part of the original document submitted to INEC before hostilities began. That tantamounts to saying that the Court cannot allow amendment to pleadings that would rebut evidence led by the adverse party because that evidence should have been in the original pleadings. That cannot be fair hearing. It can only be fair hearing if the evidence is considered and weighed with other contrary evidence and found insufficient to convince the judex. An outright rejection of the evidence of the adverse party in this case because it should have been submitted with the Form CF001 is perverse and unjust.

The exasperating thing about this whole drama is that there is no shred of evidence proffered by the 1st Respondent or any accusation that the Appellant ought to have paid N10,000 but paid N5,000 because he wanted to cheat the government of Abia State. The whole thing is about the fact that the Tax office in Abia State have their own format of how they document and give out tax receipts and certificates to civil servants and public officers who demand when such need arises, proof of payment of tax which had already been deducted from their salaries.

I say again that the peculiar format of the tax documents as made by tax officers does not make them false.

The learned trial judge decided to strike down these documents from, the tax office as if there was a contention regarding their validity. In any event, by S. 59 of the Personal Income Tax Act, the Court is bound by the assessment done by the Abia State Tax office. S. 85(2) of PITA also shows clearly that it is the tax authority that is vested with jurisdiction to verify the genuineness of any tax transaction.”

I am of the strong view that the above findings by the lower Court is fully supported by the evidence on record and can, therefore, not be faulted in anyway. I consequently adopt same as mine.

From the facts of this case, I can say conveniently that this is a case about nothing. lt is ‘a storm in a tea cup.’

On the other hand, SC. 739/2016 arose from the ruling of the trial Court on an application by Appellant herein for an order striking out the suit on the ground inter alia that it was not competent and an abuse of process.

Appellant was not a party in the suit at its inception but was later joined, upon his application by an order made on 7th July, 2015. The ground on which Appellant contended that the action is in abuse of process is that the suit in which he was joined was filed after his own suit No. FHC/OW/CS/191/2015 in which the 1st Respondent herein was a party.

The objection was overruled and judgment delivered in the case. Appellant appealed against the ruling of that Court to the lower Court which dismissed same in a judgment delivered on 18/8/2016 resulting in appeal –SC. 739/2016.

It should be noted that no claim or relief was made against Appellant herein in the original suit in which he was joined as a party neither did he counter-claim therein.

lt should also be noted that Appellant and 1st and 3rd Respondents were aspirants in the 2nd Respondent’s primary election of December 2014, the result of which gave rise to the action and that he scored the least votes – 5 – as against the others.

By the operation of Section 87(9) of the Electoral Act, 2010 as amended, any aspirant in a primary election of a political party who feels aggrieved by the conduct and result of the election has the right to approach the Court for redress which the 1st Respondent did. It is not the law that 1st Respondent must join in an earlier suit filed by the other aspirants either jointly or individually, granted that Appellant’s suit was first in time, which has not been proved to be the case and whether he was joined as a defendant in the action or not, provided he institutes his action before the conduct of the general election or, election for which the primary was to nominate a candidate. I hold the strong view that the right so conferred on an aspirant by Section 87(9) of the Electoral Act, 2010 as amended, cannot be taken from him – he won the 2nd highest votes at the primary.

It is for the above reasons that I find the appeal a colossal waste of the time of the Court and consequently agreed with the lead judgment that it lacks merit and should be dismissed.

The winner in an election tussle, as in the instant case, ought to be allowed to settle down to the constitutional duty of governing the State without unnecessary detractions. lt is on this basis that the Court would not encourage the attempt of the Appellant to turn Abia State to an atomistic society perpetually at war with itself.

It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother MUSA DATTIJO MUHAMAMAD, JSC that I too find no merit whatsoever in the appeals and consequently dismissed same.

(a) Appeal No. SC 717/2016 is hereby dismissed.

(b) Appeal No. SC. 719/2016 is hereby dismissed, and

(c) Appeal No. SC 739/2016 is hereby dismissed

I abide by the consequential orders made in the said lead judgment including the order as to costs.

Appeal dismissed.

KEKERE-EKUN, JSC

I have had the opportunity of reading in draft the judgment of my learned brother, MUSA DATTIJO MUHAMMAD, JSC just delivered in respect of the three appeals: SC.7 6/2016; SC.719/2016 and SC.739/2016. His reasoning and conclusions therein accord with mine. I shall add a few words in support.

Appeals Nos. SC.716/2016 and SC.739/2016 both have the same substratum having arisen from a single judgment of the Federal High Court sitting in Abuja delivered on 27th June, 2016. In the primary elections conducted by the 2nd Respondent (Peoples Democratic Party – PDP) on 8/12/2014 to select its candidate for the Governorship Election of Abia State, the 1st Respondent emerged the winner while the Appellant was declared as the first runner-up with 103 votes.

The 1st Respondent’s name was submitted to I.N.E.C. as the party’s candidate after he had completed and signed Form CF001 in compliance with Section 31(2) of the Electoral Act, 2010 as amended. He eventually contested and won the election.

The Appellant was of the view that the 1st Respondent was not qualified to contest the election because he was in breach of Article 14(a) in Part IV of the 2nd Respondent’s Electoral Guidelines, having allegedly submitted false tax documents to I.N.E.C. and therefore ought to be disqualified from contesting the election having regard to Section 31(5) & (6) of the Electoral Act, 2010, as amended. The contention was that the 1st Respondent failed to produce his Personal Income Tax certificate for the last 3 preceding years or any evidence of exemption from such payment; that in the circumstances the tax documents submitted to I.N.E.C. contained false information.

The suit was instituted by way of originating summons with supporting affidavit and exhibits annexed thereto in support.

The PDP guidelines referred to were however not exhibited. The 1st Respondent in opposition filed a counter affidavit and further counter affidavits to which the Appellant duly responded.

The 1st Respondent herein (Appellant in SC.739/2017) who scored 5 votes in the primary election was not made a party to the suit. He however applied to be joined in the suit and he was so joined although no relief was sought against him. At the conclusion of hearing, the trial Court entered judgment in favour of the Appellant and granted all his reliefs including order that the Appellant be issued with certificate of return as Governor of Abia State.

On appeal to the Court below, the judgment and all the orders made therein was set aside, hence the instant appeal.

One of the issues in contention in this appeal is whether an originating summons was the correct mode of commencement of the suit before the trial Court on the ground that the proceedings were hostile and that the suit should have been commenced by writ of summons and pleadings.

My learned brother, M. D. Muhammad, JSC has thoroughly addressed this issue in the lead judgment. I have nothing to add save to note that notwithstanding its finding that the suit ought not to have been commenced by originating summons, the Court below, appreciating that it is not the final Court, considered the merits of the appeal before reaching its final conclusion.

The main issue in contention in this appeal, in my view, is whether the lower Court was right in setting aside the finding of the trial Court that the Appellant submitted false tax documents to I.N.E.C. and was therefore disqualified from contesting the election.

Section 31(5) & (6) of the Evidence Act, 2010, as amended provides as follows:

“31. (5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

The Appellant’s contention before the trial Court was that the tax receipts and certificates submitted by the 1st Respondent disclosed that his taxes were not paid “as and when due”, that there were irregularities between the serial numbers on the receipts and that the amount paid did not tally with the period for which the 1st Respondent was employed.

It was argued on behalf of the Appellant that the onus was on the 1st Respondent to prove that the information contained in the documents attached to the Form CF001 was not false. This submission does not reflect the position of the law, which is that he who asserts must prove. By Sections 131, 32 and 133 of the Evidence Act 2011, the burden of establishing the existence of any fact lies on the person who asserts those facts. By the assertion that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st Respondent to contest the election under false pretences i.e. that he had complied fully with the requirements of the law and the PDP guidelines. In other words, a crime is being imputed to the 1st Respondent. In such circumstances, the Appellant has the additional burden of proving his allegations beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.

This Court in the recent case of Ukachukwu v. D.P.P. (2014) 17 NWLR (Pt. 1435) 134 @ 186 set out what must be proved in a case founded on non-payment of taxes as follows:

(a) That the person earned a taxable income during the period in question;
(b) That there was a proper assessment of the tax covering that period;
(c) That notice of assessment was served on the person to pay his tax and he defaulted; and
(d) That the person failed to pay tax assessed within two months after the service of notice of assessment.

See also: Lanto v. Wowo (1999) 7 NWLR (Pt. 610) 227; Ikuomola v. Ige (1992) 4 NWLR (Pt. 236) 511 @ 526.

Proof of these salient conditions was vital to the success of the Appellant’s claim. Therefore, before undertaking a forensic examination of the documents, the learned trial Judge ought to have satisfied himself that the Appellant had made out a valid case. Alleged irregularities on the documents submitted does not amount to proof that the documents are false. Being documents issued by the Abia State Internal Revenue Service, by virtue of Section 85(2) of the Personal Income Tax Act (PITA), the verification of the genuineness of any tax transaction is vested in the tax authority. It was established before the trial Court that the 1st Respondent was a civil servant whose taxes were deducted at source. I am in complete agreement with the Court below that since the Appellant sought declaratory reliefs, the burden of proving his case remained squarely on him throughout the proceedings. Not only were his supporting affidavits bereft of the required facts, the trial Court deliberately ignored the affidavit evidence of the tax officer, J. C. Okoji who gave an insight into how the 1st Respondent’s tax documents were prepared and gave explanations to counter the alleged discrepancies identified by the Appellant.

I also agree with the Court below that the learned trial Judge erred in relying on the PDP guidelines that were not before it in determining the issue in controversy between the parties. Since the Appellant relied on the guidelines as one of the pillars of his case, the guidelines ought to have been exhibited to enable the Court properly carry out its function of interpreting same before reaching a determination as to whether its provisions had been breached or not.

In the interpretation of a document or statutory provision, the Court is required to consider the document as a whole, and not to isolate individual provisions for interpretation. See: Amaechi v. I.N.E.C. (2009) 5 NWLR (Pt. 1080) 227. The rationale for such an approach is well demonstrated in this case, where the Court speculated on the contents of the guidelines and inadvertently applied the provisions of the 2010 guidelines, which had since been replaced by the 2014 guidelines, which omitted the vital phrase “as at when due” in relation to payment of taxes contained in the 2010 Guidelines.

I am of the view that the judgment of the lower Court cannot be faulted in this regard.

For these and the more detailed reasons elaborated set out in the lead judgment, I hold that the lower Court was right to have set aside the judgment of the trial Court. The findings of the Court on the merit of the appeal are on sound footing and accordingly affirmed by me.

The appeal in SC.717/2016 is hereby dismissed. The judgment of the lower Court is hereby affirmed. N500,000.00 costs each are awarded in favour of the 1st and 2nd Respondents against the Appellant.

SC.719/2016 & SC.739/2016

The decision in these appeals are to abide the decision in SC.717/2016. It is so ordered.

EKO, JSC

I read in draft the judgment just delivered in these appeals by my learned brother, MUSA DATTIJO MUHAMMAD, JSC. It represents my views on all the crucial issues in the appeals.

I wish to merely add that either under Section 31(5) & (6) of the Electoral Act, 2010, as amended, or Section 182 (1)(j) of the 1999 Constitution, as altered, the burden of proof imposed by Sections 131 – 139 of the Evidence Act, 2011 is not displaced. Whoever asserts under Section 31(5) of the Electoral Act that “any information given by a candidate in the affidavit or any document submitted by that candidate is false” has the burden of proving his assertion in order to be entitled to judgment under Section 31(6) of the Electoral Act, 2010.

Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145.

I cannot improve upon the Lead judgment.

Accordingly, I adopt it together with all the consequential orders made therein.

SC.719/20 6

SC.739/ 16

These appeals have the same substratum with appeal No. SC.717/2016. Accordingly they shall each abide the judgment in SC.717/2016. I so order.

BAGE, JSC

I have had the benefit of reading in draft the lead Judgment of my learned brother, Muhammad, JSC, just delivered. l agree with his reasoning and conclusion that the appeals are without merit and ought to be dismissed. I intend to add a few words in total support to the lead Judgment. On the issue of Section 31(5) of the Electoral Act 2010 (as amended), what the law requires to be proved is simply that the information given in the affidavit of the Respondent as submitted to INEC, is false.

The other side of the argument is that, where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of Kakih v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows:

“By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine.

In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd Respondent knowing that it would be used fraudulently or dishonestly as genuine.”

To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which Onus must be discharged by the Appellant See: Nwobodo v. Onoh (1984.) 1 S. C. NLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145.

For the detail reasoning contained in the lead Judgment, I too dismissed the appeal as being unmeritorious, and abide by the order as to costs contained in the lead Judgment.