DENYING THE TRUTH DOESN'T CHANGE THE FACTS. Truth triumphs. Truth can be bothered but not defeated.

PART 3 

Exposing the dangerous, treacherous and desperate attempt by barrister Julius Abure to continue to deceive innocent and unsuspecting Nigerians

COURT OF APPEAL JUDGEMENT

IN THE COURT OF APPEAL OF NIGERIA

BETWEEN

MOORE ASEIMO A. ADUMEIN

JOSEPH OLUBUNMI K. OYEWNOLE

RIDWAN MAIWADA ABDULLAHI

LABOUR PARTY

ABUJA

ON THURSDAY THE 24TH DAY OF AUGUST, 2023

BEFORE THEIR LORDSHIPS:

AND

1. SIR BASIL MADUKA

AL DVSION

T ABUJA

efene

JUSTICE COURT OF APPEAL

JUSTICE COURT OF APPEAL

JUSTICE COURT OF APPEAL

APPEAL NO: CA/OW/201/2023

2. CHIEF UKAEGBU IKECHUKWU JOSEPH

3. INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

JUDGMENI

APPELLANT

RESPONDENTS

(DELIVERED BY JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA)

This is an appeal against the decision of the Federal High Court,

Owerri Division, sitting at Owerri delivered on the 23d June, 2023 by

QUADRI, J

CaxuFIED TRUE COPY

cOURT OF APPEAL ABUJA

OGUNFUWA IIASSANA AMRS)

The 1% Respondent filed an Originating Summons at the lower court wherein he submitted the following issues for determination:

1. Whether the Plaintiff is not the winner of the * Defendant's

(Labour Party) Governorshjp Primary Election conducted on Saturday 15h Apil, 2023 by the Defendant in Imo State

for the 11h November, 2023 Imo State Governorship election considering the following documents.

(a) The Plaintift's membership card of the 1 Defendant.

(b) The Plainti's recejpt and proof of payment of N25,000, 000 (twenty five million naira) fee for the 1s Defendant's Govenorship Nomination and Expression

of Interest forms.

(c) Copy of the Defendant's GOvernorship Nomination

and Expression of Interest forms obtained by the Plaintiff from the * Defendant, completed and returned to the Defendant.

(d) Copy of list of Governorship Aspirants of the *

Defendant screened for the 11th November, 2023 Governorship Election in Imo, Kogi and Bayelsa issued

by the 1 Defendants Acting National Secretary.

(e) Copy of * Defendant's letter to the rd Defendant dated 05/04/2023 giving notices of the 1 Defendant's earlier scheduled dates for its Governorship primary elections for Bayelsa, Imo and Kogi States.

() Copy of the Governorship Primary Result Sheet dated 15/04/2023 signed by the Chairman and Secretary of

the Primary Election Planning Committee attached to the report on the Primary Election dated 16 April, 2023 as issued to the 1t Defendant's Acting National Chairman by its Inmo State Chairman and Secretary and

acknowledged by the * Defendant's Acting National Secretary.

2. Whether the Defendant's subrmission of the gd Defendant's name instead of the Plaintiffs name to the d Defendant for recognition as the * Deferndant's candidate for the 1gh November, 2023 Governorship Election in Imo State is proper and lawful considering the following

documents;

(a) Result sheet of the 15th April, 2023 Governorship primary election in Imo State signed by the Chairman and Secretary of the Electoral Committee among others.

(b) Report on the primary election issued on 16/04/2023 by the * Defendant's Imo State Chairman and Secretary to its Acting National Chairman and received

by the 1t Defendant's Acting National Secretary.

(c) * Defendant's letter to the d Defendant dated 17h April, 2023 forwarding the 3d Defendant's name as the 1* Defendant's candidate for the 11h November, 2023

Governorshjp election in Imo State.

3. Whether the Plaintiff is not entitled to have his name and particulars forwarded to the d Defendant by the Defendant as the winner of the 1 Deferndant's Governorship primary election held on the 15h April, 2023 and as its candidate for the 11th November, 2023 Imo State

Governorship Election considering the documents aforementioned.

4. Whether the Plaintiff is not the rightful person and candidate by virtue of the documents aforementioned to be recognized by the 2 Defendant to contest under the platform of the 1t Defendant (Labour Party) in the 11th November, 2023 Imo State Governorshijp Election pursuant to the rules and guidelines of the 2d Defendant.

The 1 Respondent then sought the following reliefs:

1. A decaration of the Honourable Court that the Plaintiff is the winner of the Labour Party Governorship primary election held in Imo State on 15th April, 2023 for the 11th November, 2023 Governorship Election.

2. A declaration that the presentation of the gd Defendant to

the nd Defendant by the Defendant in its letter dated 1Zh April, 2023 as the candidate of the st Defendant in its

letter dated 1 April, 2023 as the candidate of the st Defendant for the 11th November, 2023 Imo State Governorshijp Election is unlawful null and void and of no effect whatsoever.

3. An order of the Honourable Court directing the Defendant, its officers and any person or persons acting on

its behalf to submnit the name and particulars of the Plaintiff to the 2d Defendant as the candidate of the * Defendant for Imo State Governorship election scheduled for 11h November, 2023.

4. An order of the Honourable Court directing the d Defendant to recognize the Plaintiff and publish his name as

the rightful candidate of the Defendant for the Imo State Governorship election scheduled for 11th November, 2023.

The action was contested by the Appellant and the 2nd Respondent

who filed processes challenging the contentions of the 1* Respondent.

They stated that the primary election of the Appellant took place on the 16th April, 2023 as rescheduled by the national leadership of the Appellant

and that the 1* Respondent was not a candidate at the said primary election which was won by the 2nd Respondent. The learned trial Judge took arguments from the learned counsel for the respective sides and delivered a considered judgment as aforesaid on the 23rd June, 2023 wherein the 1t Respondent was found to lack the requisite locus standi to maintain the action upon which his suit was dismissed.

The Appellant filed a Notice of Appeal against the said judgment on the 6th July, 2023 containing seven grounds. At the hearing of the appeal Mr. Oyewole adopted the Appellant's brief filed on the 20th July, 2023 as well as the Reply brief filed on the 27th July, 2023 as the arguments of the Appellant in this appeal while Mr. Onwukwe adopted the 1* Respondent's brief filed on the 25th July, 2023 and Mr. Anyanwu adopted the 2nd Respondent's brief of the same date as the arguments of the 1% and 2nd

Respondents in contesting the appeal. The 3rd Respondent represented by

Mr. Jonah who held the brief of Mr. Itodo did not file any brief.

The briefs of the 1* and 2nd Respondents were basically objections to the appeal on similar grounds. The Appellant responded to the objections

in its Reply brief. The said objections which go to the competence of the

entire appeal shall be accorded priority as required by law. See IPC (NIG)

LTD VS NNPC (2015) LPELR-24652(CA).

Mr. Onwukwe arqued that the entire grounds of appeal failed to

disclose any reasonable grouse or complaint against the judgment of the

lower court. He submitted that there is no issue arising for determination of

this court from the grounds of appeal and that this appeal should be

accordingly struck out for being incompetent. He referred to SOGUNRO

VS YEKU (2017) 9 NWLR (PT 1570) 290 at 311 and DADA VS DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 156. He further submitted that the grounds of appeal involve complaints against the

interlocutory decisions of the Court which were incompetent having been

filed without leave and referred to section 242 (1) of the Constitution of

the Federal Republic of Nigeria, 1999 (as amended) and section 14 of the

Court of Appeal Act (as amended). He referred to APE VS PDP (2016) 7

NWLR (PT 1510) 153 at 173. 

Mr. Anyanwu canvassed similar arguments for the 2nd Respondent.

He submitted that while grounds 1-6 of the grounds of appeal did not relate to the final judgment of the lower court, ground 7 relates to evaluation of facts in respect of an interlocutory decision which of necessity ought to have been filed with the leave of court. He repeated the arguments and cases referred to in the arguments for the 1* Respondent

and similarly urged that the appeal be struck out.

The response of Mr. Oyewole was that the qrounds of appeal flow from the records of the lower court and represent the Appellant's grouse against the judgment of the lower court. He submitted that none of the grounds of appeal related to any interlocutory decision of the lower court but were all complaints against the final judgment. He therefore urged the Court to discountenance the submissions of the 1# and 2nd Respondents. For purposes of elucidation, the grounds of appeal and the particulars thereof contained in the Notice of Appeal filed on the 6th July, 2023 are reproduced as follows:

GROUND ONE

The leaned trial Judge erred in law and His decison oCcasioned a miscarriage of justice when His Lordship held that

"where a Plaintiff has no locus standi to bringa suit the suit becomes incompetent and the court lacks the jurisdiction to entertain it the only order the COurt can make in the circumstances is that of dismissal..."From the totality of all the considered argument and authorities, this Court finds in favour of the 1* and 3d Defendant ..."

PARTICULARS OF ERROR

i) Where a court has no jurisdiction to entertain a cdaim the appropriate order to make is that of striking out and not

dismissal.

i) By dismissing the 1* Respondent's case the trial court gave the impression that the right of the parties in the suit before it has been determined on its menit and that 2rd Respondent is the Appellant's Governorship candidate

in the Imo State Governorship election scheduled to hold on 11/11/2023.

i) By dismissing the * Respondent's case and finding in favour of the 2d Respondent, the trial Court gave the

impression that the nd Respondent is the Appellant's rightful Governorship candidate in the Imo State Governorship election scheduled to hold on 11/I1/2023.

iv) Both the and nd Respondent knew that the 2d Respondent is not the Appellant's Governorship candidate

in the Imo State GOvernorship election scheduled to hold on 11/11/2023 in the sense that the parallel primary election in which he participated was neither monitored nor accepted by the 3 Respondent.

Both the 1* and d Respondents knew that the 2d Respondent's name and particulars were never published

by the 3d Respondent at any time.

Both the 1* and 2nd Respondents knew that the z Respondent's name is not included in the 3d Respondent's Final list of candidates for the Imo State

Governorship election scheduled to hold on 11/11/2023.

Vi) The Appellant's candidate in the Imo State Governorshjp election scheduled to hold on 11/1/2023, Le. SenatorAthan Achonu was not made a party to the suit at the trial court, but only became aware of the suit in the d Respondent's press release after judgement.

vii) The facts and circumstances of the case before the trial COurt shows that the 1 and 2d Respondents were all out

to enforce the Order of the High Court of FCT dated 5h April, 2023 against the elected Barr. Julius Abure led national executive during the pendency of the latter's Appeal at the Court of Appeal, Abuja.

i) Originating summon is not designed for interpretation or

enforcement of judgment or order of a court whether of

x)

Xi)

coordinate jurisdiction or that of a higher court. Neither the 1* nor the d Respondent hada vested right in the subject matter of the suit before the trial court.

The appropriate order to mnake ought to be an order of non suit or striking out.

GROUND TWO

The leaned trial erred in law and his decision occasioned a miscarriage of justice when in one breath His Lordship

recognized that the issue of the 5/4/2023 interim order of the High Court of the FCT restraining Barr. Julius Abure & Ors as the Appellant's national executive is still pending at the Court of

Appea, and that "any pronouncement made by this cOurt on that would amount to this court pre-empting the outcome of the matter on appeal, it would be a smacked of iudical

irresponsibility, impertinence and insubordination, if this court being aware of the pending Appeal at the Court of Appeal. "His Lordship nevertheless held that "by 5/4/2023 the parties mentioned in exhibit C (the interim order) were restrained from acting as such this COurt cannot rely on that piece of evidence"

PARTICULARS OF ERROR

The learned trial Judge was quite aware of the fact that the 5/4/2023 interim order of the High Court of FCT restraining Barr Julius Abure & Ors is the subject of Appeal pending in Court of Appeal and ought not to have

foisted a state of helplessness on the Court of Appeal by enforcing the same order being appealed against.The court cannot approbate and reprobate at the same time.

The learned trial judge cannot interpret and enforce the interim order of the High Court of the FCT.

GROUND THREE

The learned trial Judge erred in law and His decision occasioned a miscarriage of justice when after rightly holding that "needless to say that if the court should grant the injunctive relef sought or

refuse the granting of the injunction it would tantamount to recognizing or not recognizing either of the warring parties; that is it would tantamount to either recognizing the erstwhile chairman

Barr Julius Abuja and his Exco members or in another breath recognising the incoming Chaiman Lamidi Apapa an issue which is the gravamen of the main suIt and which is still pending at the

Court of Appeal" His Lordship indirectiy enforced the same judgment against Barr Julius Abuja and his Exco members when His Lordship found that: Exhibit LPI dated h April, 2023 Notice of Change of Primaries Dates in Kogi, Imo and Bayelsa Stated addressed to the Chairman Independent National Electoral Commission,

i)

Abuja was issued and signed by the acting national chainman and the acting national secretary.

Exhibit LP2 dated 13/4/2023 titled dissolution and reinstatement of democratic elected executives in Imo state issued and signed by the acting national chairman and the acting ational secretary.

i) Exhibit LP3 dated 13 April, 2023, title Imo State gubernatorial planning Committee issued and signed by the

acting national chairman of LabOur Party.

) Exhibit LP4 titled Imo State Gubernatorial Primary Election of

Saturday 16h April, 2023 Result Sheet signed by those whose names were contained in Exhibit LP3.

GROUND FOUR

The learned trial Judge erred in law and his decision occasioned a miscarriage of justice when His Lordshijp held that "the question is in what capacity was the rd defendant notified by the 1 defendant in that exhibit D of the date fxed for its governorshjp election, was it acting in defiance of the court order or its directive superior to the court order."..."Exhibit D (letter signed by Abure) is a product of an already restrained National Chairman who has

at the time he issued the letter had no vires to do s."

PARTICULARS OF ERROR

i)

The originating process leading to the order against the Barr. Julius Abure led natonal executive was filed on

04/04/2023 in an intra party dispute.

The said order was made ex parte on 05/04/2023.

i) No evidence before the trial court that the aforesaid order was enrolled and served on Barr. Julius Abure on the same

05/04/2023 that exhibit D was signed.

iv) Judgements and orders in personem can only become binding upon service or knowledge of the Order.

GROUND FIVE

The learned trial Judge misdirected himself when the court acepted and sanctioned Alh. Lamdi Apapa as acting National Chairman when the interim order restraining Abure which is the

Subject of Appeal does not appoint Apapa as acting Chairman and

when no document was presented before the trial court shOwing

Lamidi Apapa emerged.

PARTICULARS OF MISDIRECTION

The learned trial judge descended into the arena when His Lordship appointed Apapa as the acting national Chaiman of

the Appellant and sanctioned the notces issued by him.

The court pre-empted and pre-judged the appeals against the interim order of the High Court of the FCT restraining

Abure as suspended and Apapa as acting chairman.

The court pronounced on the restraining order of the High Court of the FCT which is the subject of appeal at the COurt

of Appeal after the learned trail judge earlier said it would Smack of insubordination and impertinence for him to do so.

GROUND SIX

The learned trial Judge erred in law when His Lordship held

that "Restating the position further, Kekere-Ekun JSC in UKACHUKWU V PDP (2014) 17 NWLR (PT 1435) 134 pointed

Out that a complaint under section 87 (9) of the electoral act which is word for word with the above section 285 (14) of the Electoral Act, 2022 falls within a very narrow compass. The Complaint must be an aspirant who particjpated in the primary and his complaint must relate to non compliance with the provisions of the Electoral Act or the guidelines of the political party. "

PARTICULARS OF ERROR

It is not enough for a claimant in a pre-election matter to merely establish that he was an aşpirant who participated

in the primary, he must further establish by concrete evidence that the party he joined with his political party in the suit was actually accepted by INEC as the partys candidate.

Both the and zd Respondents knew that the 2na Respondent is not the Appellant's Governorship candidate in the Imo State Governorship election scheduled to hold on 11/11/2023 in the sense that the parallel primary

v)

election in which he particjpated was neither monitored nor accepted by the 3d Respondent. Both the * and nd Respondents knew that the d Respondent name and particulars were never published by the 3d Respondent at any time.

iv) Both the 1st and d Respondents knew that the 2d name Is not included in the 3d Respondent's final ist of candidates for the Imo State Governorship election scheduled to hold on 11/11/2023.

Respondent's The Appellant's candidate in the Imo State Governorship election scheduled to hold on 11/11/2023, i.e. Senator Athan Achonu was not made a party to the suit at the trial court, but only became aware of the suit in the d Respondent's press release after judgement.

GROUND SEVEN

The decisions and findings of the trial Court is against the weight of evidence.

A close perusal of each of the reproduced grounds of appeal above

discloses that while grounds 1, 6 and7 were in respect of findings made by

the lower court in favour of the Appellant, grounds 2, 3, 4 and 5 were in

respect of observations made by the learned trial Judge in the course of

evaluating the cases presented by the respective parties and were therefore not against the ratio decidendi or the actual decision of the lower court. It is the law that an appeal against the decision of a court must be by a party aggrieved by the decision of the said court and not by the party in whose favour the decision was given. See NGIGE VS OBI & ORS

(2006) LPELR-12920(CA), NWAOGU VS ATUMA (No. 1) 2013 9 NWLR (PT 1358) 113, JACK VS A.G & cOMMISSIONER FOR JUSTICE, RIVERS STATE & ORS (2013) LPELR-22867(CA) and RE:

ALHAJA AFUSAT DELU ORS VS LAGOS STATE DEVELOPMENT PROPERTY CORPORATION ORS. (1992) LPELR 1464. The law is further sacrosanct that an appeal must be against the actual decision of

the court and not against observations made in the decision. See ONAH

VS SCHLUMBERGER (NIG) LTD (2018) 7 NWLR (PT 1674) 84 at 160, BUHARI & ORS VS OBASANJ0 & ORS (2003) 17 NWLR (PT850) 587 and NULEC INDUSTRIES PLc VS DYSON TECHNOLOGIES LTD & ANOR (2022) LPELR-57866(SC). It is therefore evident that as arqued by the 1 and 2nd Respondents, the grounds of appeal contained in the Notice of Appeal are totally incompetent which defect fatally and incurably vitiates this appeal.

This appeal is accordingly struck out.

Parties are to bear their respective costs.

CERTIFIED A BUJA

E COPY

OCHNEIMA HASSANA (MRS)

ASST CH

Dat.2623...

Appearances:

JOSEPH OLUBUNMI KAYODE OYEWOLE

JUSTICE, COURT OF APPEAL.

Mr. P. I. Oyewole for the Appellant with him Mr. C. Ihejiagwa for the

Appellant.

Mr. I. C. Onwukwe with him Mr. G. Ozarah for the 1t Respondent.

Mr. Greg Anyanwu for the 2nd Respondent.

Mr. C. Jonah holding brief of Mr. E.G. Itodo for the 3rd Respondent.

APPEAL NO: CA/OW/201/2023

MOORE ASEIMO ABRAHAM ADUMEIN, JCA

I had a preview of the judgment just delivered by my learned

brother, Joseph Olubunmi Kayode Oyewole, JCA.

I agree with the reasoning of my learned brother and I also

strike out this appeal.

I abide by the order as to costs.

MOORE ASEIMO ABRAHAM ADUMEIN

JUSTICE, COURT OF APPEAL

CERTIFED TR'E COPY

COURT OF APPESI

oGUNFUWAicER

ASST

Signab3.

Date

CA/OW/201/2023

RIDWAN MAIWADA ABDULLAHI, JCA

My learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA enabled me the opportunity of reading in draft the lead

judgment just delivered.

I am in agreement with the reasoning and conclusion arrived thereat with nothing useful to add therein.

I too find the grounds of appeal contained in the Notice of Appeal

incompetent which defect fatally and incurably vitiates this appeal.

Consequently the appeal is hereby struck out.

No order as to costs.

RIDWAN MAIWADA ABDULLAHI,

JUSTICE COURT OF APPEAL

CERTIFIED TR'E COPY

COURT OF APFEAL ABUJA

0GUNFUWA HASSAN

ASST. CHE

Dat -

STAY TUNED FOR PART 4