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DR. SAMPSON UCHECHUKWU OGAH v. DR. OKEZIE VICTOR IKPEAZU & ORS

(2017) LPELR-42372(SC)

In The Supreme Court of Nigeria

On Friday, the 12th day of May, 2017

SC.717/2016(CONSOLIDATED)


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

DR. SAMPSON UCHECHUKWU OGAH
-SC.717/2016
-SC.719/2016

AND

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

AND

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

AND

1. PEOPLES DEMOCRATIC PARTY (PDP)
2. DR. OKEZIE VICTOR IKPEAZU
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. SIR FRIDAY NWANOZIE NWOSU
-SC.719/2016

AND

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


Summary

INTRODUCTION:
This appeal borders on Electoral Matters.
FACTS:
This is an appeal against the judgment of the Court of Appeal sitting in Abuja.

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 1st respondent in opposition filed a counter affidavit and further counter affidavits to which the appellant duly responded. 

The 1st respondent (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 of Appeal, the judgment and all the orders made therein was set aside, hence the appeal to the Supreme Court.





ISSUES:
 APPEAL NO. SC. 717/2016 
The Supreme Court adopted the following issues for the determination of his appeal:-

 "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 the learned Justices of the Court of Appeal were right in their finding that the requirements of Section 31(2) vis-a-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). 

3. 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).

4. 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). 

 5. 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). 

6. 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). 

 APPEAL NO. SC. 739/2016

The Supreme Court adopted a sole issue in determination of the appeal thus:- "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."

DECISION/HELD:
APPEAL No. SC.717/2016.
In the final analysis, the Supreme Court held that the appeal was unmeritorious and was accordingly dismissed.
APPEAL No. SC. 719/2016
At the hearing of the three appeals it was agreed that appeal No. 719/2016 shall abide the decision in appeal No. SC.717/2016. 

APPEAL No. SC.739/2016
In the final analysis, the Supreme Court held that the appeal was without merit, it was accordingly dismissed. 


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