Position of the Law on Proof of Political Party Primary Election Result

CASE TITLE:               CHIMA v. DIRIWARI & ORS (2023) LPELR-59992(CA)

JUDGMENT DATE:      8TH FEBRUARY, 2023

JUSTICES:                      ONYEKACHI AJA OTISI, JCA

FATIMA OMORO AKINBAMI, JCA

MUHAMMAD IBRAHIM SIRAJO, JCA

DIVISION: LAGOS

PRACTICE AREA:          PRE-ELECTORAL MATTERS

FACTS:

The facts as presented by the Appellant were that, 3rd Respondent conducted primary elections to select and nominate the 2nd Respondent’s candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State ahead of the general elections in 2023. The Appellant, the 1st Respondent and 4th Respondent, as well as one Emilia Ezeude, were aspirants. The said election was conducted by the 3rd Respondent under the supervision of the 2nd Respondent on 23/5/2022. The 1st Respondent and the 4th Respondent were of the position that the said primary election took place on 22/5/2022, and not on 23/5/2022. Each of them claimed to be the winner of the primary election held on 22/5/2022.

The 3rd Respondent’s primary elections into the Federal Constituencies of Lagos State were initially slated to hold between 22nd – 24th May, 2022. The Appellant’s case was that the said primary election could not hold on 22/5/2022 in some of the Federal Constituencies in Lagos State, including Ajeromi/ifelodun Federal Constituency due to late receipt of logistics and signals from the headquarters of the 3rd Respondent. As a result, on 23/5/2022 and on 24/5/2022, primary elections into the remaining constituencies where the said primaries could not hold on the 22/5/2022, were conducted by the office of the 3rd Respondent, under the supervision of officials of the 2nd Respondent. The 3rd Respondent and the 2nd Respondent, respectively, issued reports of the said primary elections of 23/5/2022. It was the case of the Appellant that he emerged as the winner of the primary election, according to the result published by the 3rd Respondent.

Without formally cancelling the said primary election of 23/5/2022, the 3rd Respondent rescheduled another election for 6/6/2022, which could not hold due to protests or disagreements over the list of delegates. On the same 6/6/2022, the 3rd Respondent issued the Appellant with a Certificate of Return and forwarded his name to the 2nd Respondent as its candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State for 2023 General Election. He was also issued the INEC Nomination Form for members, the House of Representatives.

This suit culminating in the appeal was instituted by the 1st Respondent against the 2nd Respondent, the 3rd Respondent and the Appellant as defendants. The 4th Respondent later applied to be joined in the action. The pivot of the 1st Respondent’s claim was that he won the primary election for the Ajeromi/Ifelodun Federal Constituency held on 22/5/2022, conducted by the 3rd Respondent.

The fulcrum of the Appellant’s counter-claim was that the said primary election held on 23/5/2022 and not on 22/5/2022, and that he was the winner of the said primary election conducted by the 3rd Respondent under the supervision of the 2nd Respondent on 23/5/2022. 23/5/2022 was the only date that the 3rd Respondent conducted an election to select its candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State. He asserted that there were no elections held on 22/5/2022 and on 6/6/2022 for the same purpose. The Appellant sought the trial Court to uphold his candidature.

At the conclusion of trial, the trial Court on 7/12/2022, dismissed the claims of the 1st Respondent, as well as the counter-claim of the Appellant, concluding that the 3rd Respondent did not have any candidate for the election of Member representing Ajeromi/Ifelodun Federal Constituency, Lagos State for the 2023 General Elections, having failed to conduct a valid primary election.

Aggrieved by the decision of the learned trial Judge on his counter-claim, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal based on the following issues formulated by the appellant:

1. Whether having regard to the evidence before the trial Court, the Court was right to have held that there was no proof of a primary election of the 2nd defendant for Ajeromi/Ifelodun Federal Constituency on 23rd May, 2022, which election produced the Appellant as the candidate of the 2nd defendant for the said constituency for 2023 General Election.

2. If the answer to the 1st question is in the negative, whether having regard to the evidence before the trial Court, the Plaintiff and the 7th Defendant have the requisite locus to challenge the said primary election of the 2nd defendant held on the 23rd May, 2022.

3. Whether in the light of the admissible evidence placed before the trial Court, it was not perverse for the Honourable Court to have dismissed the 3rd defendant/Appellant’s counter-claim.

COUNSEL SUBMISSION:

The Appellant relied on the result sheet of the primaries for 23/5/2022 and the 2nd Respondent’s summary of the said result. The 1st Respondent and the 4th Respondent alleged fraud on the basis that the said result sheet was dated 24/5/2022. The pleading and evidence of the Appellant stating that the result sheet bearing the date, 24/5/2022, was not fraudulent but rather that it was the date the result was certified by the national officers of the 3rd Respondent, was not controverted by any of the parties. The Appellant, on the timetable of elections published by the 3rd Respondent, submitted that the timetable was not rigid as primary elections was held in some constituencies on the 23rd and 24th May, 2022, depending on logistics.

It was contended that all the three contenders in the suit, being the 1st Respondent, the Appellant, and the 4th Respondent confirmed, irrespective of the date alleged to have held the primaries, that there were complaints or petitions in furtherance of which the 3rd Respondent scheduled a repeat primary. The Appellant submitted that in the face of the failed attempt to conduct a repeat of the primaries, the 3rd Respondent upheld his election and issued him a Certificate of Return, Exhibit D22. It was submitted that by cogent evidence, the Appellant proved his counter-claim to the effect that the primary elections of the 3rd Respondent in the Ajeromi/Ifelodun Federal Constituency of Lagos State was held on 23/5/2022 and that he won that election. The Court was urged so to hold.

The 1st Respondent argued that there was no primary election conducted by the 3rd Respondent on 23/5/2022. The 1st Respondent contended that Exhibit D13 and its accompanying documents, tendered by the Appellant, was replete with material and fundamental contradictions, which nullified its credibility. The Appellant did not present before the trial Court any result sheet for the alleged election of 23/5/2022. The 1st Respondent contended that no such election was held, which was the reason why Exhibit D13 bore the date 24/5/2022. The 1st Respondent referred to the pleadings of the 2nd Respondent and the Appellant to submit that there was a contradiction on the date the alleged election of 23/5/2022 took place.

Reference was made to paragraphs of the Appellant’s Statement of Defence, where the Appellant pleaded that the 3rd Respondent’s primary elections held on 23/5/2022 and on 24/5/2022. The 1st Respondent submitted that the said conflict and contradictions in Exhibit D13 rendered the document valueless as evidence that can be relied on by this Court.

It was further submitted that the names of delegates in Exhibit D14 was at variance with the delegates in Exhibit D21. Where material contradictions in evidence of a party are fundamental, it goes to the root of the matter, the Court will attach no probative value to such materially contradictory evidence, citing Shola v State (2020) 8 NWLR (PT. 1727) 530 at 546-549, Eze v State (2018) 11 NWLR (1630) 353 at 367. It was submitted that the only primary election conducted by the 3rd Respondent on 23/5/2022 was the Lagos Senatorial Primary election, which included the Lagos West Senatorial District primary election, wherein one Mr. Segun Adewale emerged as the 3rd Respondent’s Senatorial candidate for Lagos West Senatorial District.

This fact was confirmed by PW1, DW3 and DW4 in their evidence on oath as well as by Exhibit P23. Oral evidence to contradict Item 3 of Exhibit P21, which gave the date for Senatorial District primaries to be 23/5/2022, was described as unsustainable. A party is not permitted to lead oral evidence to vary and contradict documentary evidence which remains the best evidence, citing cases of Gbenga v APC (2020) 14 NWLR (PT 1744) 248, Emeka v Chuba- Ikpeazu (2017) 15 NWLR (PT. 1589) 345.

For the 1st Respondent, it was contended that the documents relied on by the Appellant in proof of his counter-claim lacked evidential value as most of them were tendered by non-makers. The 1st Respondent was of the view and submitted that the Appellant did not prove his counter-claim to be entitled to judgment. The Court was urged to dismiss the appeal, with costs.

In the Appellant’s reply brief to the 1st Respondent’s brief, the Appellant submitted that DW1 and DW2 were well positioned to tender certified copies of the reports of the election of 23/5/2022. Certified copies of public documents do not require foundation for admissibility and can be tendered by anyone as long as they are properly certified, citing Section 104 of the Evidence Act, and Ogbuanyinya v Okudo (1979) 6-9 SC 32 at 43, Nnamdi v State (2022) LPELR-58601(CA). It was argued that the trial Court, having found that there was no election on 22/5/2022, ought to have made a finding on the primary election of 23/5/2022.

Further, that the 1st Respondent, having testified that he did not participate in the election of 23/5/2022, had no legal capacity to challenge the said primary election. The 4th Respondent, who also did not participate in the primary election but only sought to be declared the 3rd Respondent’s candidate on the basis of a recommendation by the National Working Committee, had no right to approach the Court for redress, citing Eyiboh v Abia (2012) 16 NWLR (Pt. 1325) 51, Emeka v Okadigbo (2012) 18 NWLR (PT. 1331) 55.

DECISION/HELD:

​The appeal was allowed.

RATIO:

ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Position of the law on proof of political party primary election result

“…The said Summary of Result Sheet and the Checklist came from the custody of the 2nd Respondent, which is the institution statutorily commissioned to monitor the primary elections. They form part of the records of the event, which they are statutorily mandated to monitor, prepared by the 2nd Respondent. The said Summary of Result Sheet, as well as the Checklist can therefore be relied on.

The result sheet is the primary evidence that the winner of the election would present. Etim v Akpan & Ors (2018) LPELR-44904(SC), Olly v Tunji & Ors (2012) LPELR-7911(CA), Salbie & Anor v. INEC & Ors (2009) LPELR-4923(CA). Another evidence is a Certificate of Return issued to the winner of the election. In Onuoha v Ubah (2019) LPELR-48129(SC). The Supreme Court, per Sanusi, JSC at page 12 of the E-Report, held:

“The appellant also made heavy weather on the 1st respondent’s failure to exhibit result sheets of the primary election. To my mind, result sheet is not the only document that could be used to justify or prove the results of the election or who amongst the aspirants scored the highest votes. A certificate of return, is also ipso facto, prima facie evidence to establish scores of candidate or success of a candidate over the others.” (Emphasis mine).

Therefore, it is only an authentic election result, and or a validly issued certificate of return, that can prove a candidate to be the winner of an election.” Per OTISI, J.C.A.

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