MUSTAPHA & ANOR. vs. TUKUR & ANOR.(2022)LCN/17071(CA)
ISSUE: ORIGINATING SUMMONS-Whether a document meant to be interpreted or construed 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.
PRINCIPLE:
“…The reliefs which the 1st Respondent sought being declaratory he must fare better than rely on this admission. He must prove that the 2nd Appellant’s Guidelines make specific provision that the 1st Respondent must resign a month before purchasing the expression of interest form. The party guidelines for primary election must be put in evidence.
This is especially so that the 1st Respondent’s case was built on it, and the judgment of the trial Court is largely predicated upon it and Section 84(12) of the Electoral Act, 2022. Your Lordships may wish to refer to pages 209, 210 and 200 of the record of appeal. At page 11 of the record, the learned trial Judge stated:
“Therefore, the pertinent question to ask from the claim of the plaintiff is, has the 1st defendant resigned his appointment before obtaining nomination and expression of interest form in accordance with Section 84(12) of the Electoral Act, 2022 and Paragraph 1 Part – VII of PDP Guidelines for Primary Election 2022?”
What does Section 84(12) of the Electoral Act, 2022 say?
Section 84(12) of the Electoral Act, 2022 States:
“No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
As can be seen, there is no mention of resignation of one month, whereas, it is submitted that Paragraph 1 Part VII of PDP Guidelines for Primary Election, 2022 provides:
“Subject to the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any aspirant who is a civil servant or public servant shall resign from such office not later than 30 days before the date of the General Election.
Pursuant to Section 84(12) of the Electoral Act, 2022, any aspirant who is a political appointee shall resign his appointment before the purchase of Expression of interest and nomination form.”
The requirement for resignation before the purchase of Expression and Nomination forms is neither in the Constitution nor Electoral Act, 2022 but in the PDP Electoral Guidelines for primary elections, which is a private document of which judicial notice may not be taken under the Evidence Act. It was submitted by learned counsel to the Appellants that the failure of the 1st Respondent to exhibit or place before the Court the PDP Guidelines was fatal to his case. His submission was bolstered up with the case of Ogah V. Ikpeazu (2017) All FWLR (Pt. 617) 605 at Pp. 4633-6347 Paras. G- H. Also cited is the case of APC V. Elebeke (2022) II FWLR (Pt. 1873) 1 at 45 Paras. C-D and the case of Ibezim V. Elebeke (2022) 4 FWLR (Pt. 1819) 1 at 51.
Learned counsel to the 1st Respondent submitted that the decision of the apex Court in Osafile & Anor. V. Odi & Anor. (1990) LPELR-2783 (SC) Pp. 45-47 is that the document can either be placed before the Court or counsel can produce the document or relevant portion of it can be quoted in written address or brief of argument.
The case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors. (2017) LPELR-42372 (SC) commands better force. It was in that case held: “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. It 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. (Pp. 48-49, Paras. D-A) this decision is later in time to Osafile & Anor. V. Odi & Anor. (Supra). The settle position of the law is that where two decisions of the Supreme Court are in conflict, the lower Court is bound by the latter decision and must follow it:- See Kanu V. Asuzu & Anor. (2015) PLPER-24376 (CA) Pp. 51-52 Paras. A-F; CBN V. Messrs Hybrid Engineering Co. Ltd. (2021)LPELR-56468 (CA) Pp. 12 Paras. B-C; Mutairu V. State of Lagos (2021) LPELR- 56754 (CA) Pp. 51 Paras. A-B.
Therefore, the Court is bound to follow the decision in the case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors. (2017) (Supra).”
In his judgment, the learned trial Judge was authoritative as if the document was placed before it. The learned trial Judge fell into palpable error, and I refuse to do same.
The substratum of the 1st Respondent’s case is the PDP Electoral Guidelines for Primary Elections. Without it placed before the Court and with credible evidence led in proof, the judgment of the trial Court was speculative or at least a judgment ladened with extraneous evidence.
Issues one and two considered together are hereby resolved in favour of the Appellants and against the 1st Respondent.” Per ABUNDAGA, JCA.