DR. ABDULLAHI BABA ABDUL V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS
(2012)LCN/5499(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/A/84/2012
RATIO
APPEAL: NATURE OF A GROUND OF APPEAL
The law is trite that a Ground of Appeal must relate and arise from the decision appealed against. Any complaint in a ground of appeal that does not relate to the Judgment appealed against cannot be relevant in the appeal and is incompetent. The complaint in the grounds of Appeal must attack the decision of the court on an issue decided by that court. See F.M.B.N. v. NDIC (1999) 2 NWLR (Pt.591) 333.
The rationale is that an Appellant’s right of appeal is circumscribed within the ambit of the Judgment appealed against. PER REGINA OBIAGELI NWODO, J.C.A.
APPEAL: EFFECT OF AN ISSUE DISTILLED IN AN APPEAL THAT IS TOO WIDE
Any Issue distilled for determination in an appeal that is too wide is liable to be struck out. See Shanu v. Afribank (Nig) 2002 17 NWLR (pt. 795) page 185 SC. PER REGINA OBIAGELI NWODO, J.C.A.
APPEAL: RATIONALE FOR APPELLATE COURTS FORMULATING ISSUES
The Appellate courts in moving away from technicality has adopted the approach of formulating issues for determination from competent grounds where the issues formulated are couched in an obscure style. The rationale is to determine the real disputes between the parties in the quest for substantial justice. When the issue is too wide the court may strike it out or rephrase in an attempt to identify the appropriate issue having regards to the grounds of Appeal and particulars. See Ifabiyi v. Adeniyi (2000) 5 SC 31 at 42. PER REGINA OBIAGELI NWODO, J.C.A.
APPEAL: EFFECT OF A GROUND OF APPEAL TO WHICH NO ISSUE IS FORMULATED FROM
Where no issue for determination is formulated from a particular ground of appeal that ground of appeal is deemed abandoned by the appellant and the appropriate order to make is one of strike out. See Bhojsons Plc. v. Daniel – Kalio (2006) 5 NWLR (Pt. 973) 330 SC. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
DR. ABDULLAHI BABA ABDUL – Appellant(s)
AND
1. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
2. PRINCE TONY MOMOH
(NATIONAL CHAIRMAN CPC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. HON. BUBA UMAR JUBRIL – Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff in the Federal High Court Abuja Division instituted an action by Originating Summons against the Respondents who were then Defendants seeking for the following questions:
“1. Whether by the combined provisions of section 87 (1) of the Electoral Act, 2010 as amended and Schedule 1 Paragraph 2(iii) of the Constitution of Congress for Progressive Change (CPC) the 4th Defendant is qualified to contest in the party’s primary election for House of Representatives and is entitled to have his name forwarded by the party to the Independent National Electoral Commission, for the purpose of contesting the 2011 National Assembly Election having joined the party on or about the 3rh of December, 2010.
2. Whether by the provisions of Section 87 (1) of the Electoral Act, 2010 as amended and Schedule 1 Paragraph 2(iii) of the Constitution of Congress for Progressive Charge (CPC) the 1st Defendant can validly allow the nomination of the 4th Defendant to contest the party’s House of Representatives primary election for Lokoja/Kogi Federal Constituency for the purpose of the 2011 National Assembly Election.
3. Whether by the provisions of Section 84(1) of the Electoral Act, 2010 as amended and Schedule 1 Paragraph 2(iii) of the Constitution of Congress of Progressive Change (CPC) the Plaintiff is the only eligible candidate of the party for the party House of Representatives primary election held on the 9th of January, 2011.
4. Whether by provisions of the Electoral Act, 2010 as amended and Schedule 1 Paragraph 2(iii) of the Constitution of Congress for Progressive Change (CPC) the 3rd Defendant can accept, recognize and maintain on its records, the name of the 4th Defendant as the 1st Defendant’s candidate for the purpose of contesting the 2011 general election other than the name of the plaintiff who participated as the only eligible candidate of the party at the party’s primary election for the Lokoja/Kogi Federal Constituency held on the 9th of January, 2011.”
Consequent on the determination of the above Questions he sought the following reliefs:
“1. A DECLARATION that the Plaintiff having participated in the 1st Defendant’s House of Representatives primary election as the only eligible contestant that participated in the said primary election is entitled to have his name forwarded by the 1st Defendant to the Independent National Electoral Commission, as her candidate for the purpose of contesting the 2011 National Assembly Election.
2. AN ORDER of the Honourable Court declaring null and void the 1st Defendant’s purported submission of the 4th Defendant’s name as her candidate for the purpose of contesting the House of Representative Seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election.
3. A DECLARATION that the 3rd Defendant’s express and/or implied conduct of accepting and recognizing any other name other than the Plaintiff as the 1st Defendant’s candidate for the purpose of contesting the House of Representatives Seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election is null, void and of no effect.
4. AN ORDER of injunction restraining the 1st and 2nd defendants from recognizing or further recognizing any other person beside the Plaintiff as the candidate of the 1st Defendant for House of Representatives Seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election.
5. AN ORDER of mandatory injunction mandating and/or compelling the 1st Defendant to immediately accept and maintain on its record the name of the Plaintiff as the candidate of 1st Defendant for the 2011 Lokoja/Kogi Federal Constituency, the Plaintiff, being the only eligible candidate that participated in the 1st Defendant’s House of Representatives primary Election.
6. AN ORDER of mandatory injunction compelling the 3rd Defendant, its officers, servants and agents to immediately publish the Plaintiff’s particulars within Lokoja/Kogi Federal Constituency, as the 1st Defendant’s candidate for the 2011 National Assembly Election Scheduled for April 2011.
The suit was later transferred to the Federal High Court Lokoja Division before his lordship Ekwo J.
The learned trial Judge in a considered decision on the 5th of December, 2011 held that the plaintiff did not prove his case with credible evidence and dismissed the claim.
Dissatisfied with the decision of the court below, the Appellant approached this Court vide a Notice of Appeal filed on 03/01/2012 containing 10 grounds of Appeal.
In line with the Rules of this Court the Appellant and the 4th Respondent filed and exchanged Briefs of arguments. The 1st, 2nd and 3rd Respondents did not file any brief. At the hearing of the appeal the Appellant who is not a legal practitioner appeared in person and adopted his Brief settled by him on 05/03/2012 and Reply Brief filed on 23/04/2012.
The 4th Respondents counsel M. T. Musa adopted the 4th Respondent’s brief filed on 29/03/2012 and settled by him. Before adopting the Brief he referred the court to the Notice of Preliminary objection incorporated in the Brief. The Notice of Preliminary objection is on page 3 of his brief. I will now look at the grounds of the preliminary objection.
PRELIMINARY OBJECTION:
The 4th Respondents Preliminary objection is predicated on four grounds. I will take them in seriatim.
Under Ground one, it is the submission of the learned counsel for the 4th Respondent that grounds one, two, three, four, five and six of the Notice of Appeal are in all material particulars incompetent because they are not couched from the Ratio Decidendi of the lower courts Judgment. It is the further contention of the learned counsel that Grounds One to Six are not related to the Judgment or ratio Decidendi and should be struck out. He referred to the case of Gwandu v. Gwandu (2004) 17 WRN 76 at 93.
It is his further submission that particulars of the Grounds of Appeal are not related to the grounds and should be struck out.
The Appellant contention is that the grounds of appeal arose from the judgment contrary to the submission in the 4th Respondent’s Brief.
He referred to pages 452 – 498 of the Record of Appeal.
It is his submission that once a ground of appeal clearly states the complaint against the Judgment to the extent that the other side or court is not confused about the nature of the Ground such ground is competent. He relied on Incor Nig Plc v. Rolex Ent. (Nig) Ltd (1996) 6 NWLR (Pt 454) 318.
The law is trite that a Ground of Appeal must relate and arise from the decision appealed against. Any complaint in a ground of appeal that does not relate to the Judgment appealed against cannot be relevant in the appeal and is incompetent. The complaint in the grounds of Appeal must attack the decision of the court on an issue decided by that court. See F.M.B.N. v. NDIC (1999) 2 NWLR (Pt.591) 333.
The rationale is that an Appellant’s right of appeal is circumscribed within the ambit of the Judgment appealed against. In the instant case Ground One read thus:
“The learned trial judge erred in law by his failure to determine the questions and issues raised in the plaintiff’s Originating Summons of 24th February, 2011 an error that has occasioned miscarriage of justice to the plaintiff.”
The Appellants complaint, under the reproduced ground is that the trial judge did not determine the questions he raised in his Originating summons. The claim of the Appellant in the summons raised questions for determination. The trial court dismissed the claim. Therefore the Appellant’s ground one arose from that decision of the court below dismissing the claim. The questions for determination preceded the reliefs sought which were dismissed.
On whether the particulars are related to the grounds. The particulars are brief details of the failure of the court below to answer the questions.
Ground Two relates to the decision of the court below on membership of the party and subscription fees. This complaint was extensively addressed by the court below. Therefore it arose from the Judgment and the particulars are complimentary to the Grounds of Appeal contrary to the argument of the 4th Respondent.
A critical perusal of Ground Three glaringly reflects it arose from the Judgment. The learned trial Judge in the Judgment made pronouncements on the eligibility of the 4th Respondent as relates to subscription fees. Therefore all the Grounds inclusive of Grounds four, five and six arose from the decision of the court below.
Under Ground two of the preliminary objection it is the submission of the learned counsel for the 4th Respondent that issues 1, 2, and 3 formulated from Grounds 1- 6 of the Notice of appeal are incompetent because they are at variance with the grounds of appeal.
He submits that issues not founded on grounds of appeal are incompetent. He cited Wali v. Bafarawa (2004) WRN 65.
He argued that the three issues are incompetent. The position of the law is trite that issues formulated for determination in an appeal should arise from the Grounds of Appeal. The Appellant formulated the following issues for determination:
“1. Whether having regard to the provisions of Schedule 1 clause 2 (iii) of the Congress for Progressive Change’s Constitution and section 87 (9) of the Electoral Act, 2010 (as amended) and the processes in this appeal the trial court ought to have declined jurisdiction in relation to the originating summons filed by the appellant (Distilled from grounds one & two)
2. Whether having regard to the facts and circumstance of the case before the trial court and the pleadings of the parties the decision of the trial court cannot be set aside (Distilled from grounds three & four).
3. Whether the appellant’s participation in the primary election can estopp him from making any complaint or commenced any action in relation to the said primary election having regard to the 1st Respondent’s Constitution, guideline for primary election and the Electoral Act, 2010 (as amended) (Distilled from grounds five & six).”
Issue one is tied to Grounds one and two of the Notice of Appeal. I had earlier set out Ground one and for purposes of elucidation and ease of argument Ground two read thus:
The learned trial judge erred in law in ascribing to the word subscription the meaning only as “payment for annual renewal of membership” outside the purport and meaning of schedule 1 of the 1st defendant’s constitution thereby occasioning a miscarriage of justice in determination of the suit.”
The aforesaid ground and its particulars dwelt on the complaint in regards to subscription and membership. A composite reading of the two grounds reflects no nexus to issue one.
Issue one raised the question whether the trial court should have declined jurisdiction. This is not the subject of complaint in Grounds 1 and 2.
Any issue for determination that is not related or based on grounds of appeal are incompetent and valueless and the sanction is to discountenance the incompetent issue or strike out the issue. See Omo v. JSC Delta State (2000) 7 SC (Pt. 11) 1; Karimu v. Abiodun (2007) 26 WRN 71 at 79. The Ground of Appeal should constitute a challenge to the ratio of the decision and issue for determination must arise from the Ground. See Egbe v. Alhaji (1989) 1 NWLR (Pt. 128) page 546.
Issue 2 as formulated is broad not explicit or direct on the subject matter in grounds 3 and 4. It is a General Question and too wide. Any Issue distilled for determination in an appeal that is too wide is liable to be struck out. See Shanu v. Afribank (Nig) 2002 17 NWLR (pt. 795) page 185 SC.
The Appellate courts in moving away from technicality has adopted the approach of formulating issues for determination from competent grounds where the issues formulated are couched in an obscure style. The rationale is to determine the real disputes between the parties in the quest for substantial justice. When the issue is too wide the court may strike it out or rephrase in an attempt to identify the appropriate issue having regards to the grounds of Appeal and particulars. See Ifabiyi v. Adeniyi (2000) 5 SC 31 at 42.
The Appellant is not a legal practitioner. That pre-deposition requires that issue 2 that is too wide is not struck out on the basis that it is too wide or because it is general rather it is just and prudent in the circumstance to identify the real question in dispute from the Grounds and particulars attached to the issue by the Appellant. Therefore, I am inclined to rephrase issue 2 from the complaints in grounds 3 and 4 since it is tied to that issue. I will not strike out issue 2 but rephrase same.
After a crystal reading of grounds five and six I cannot subscribe to the submission of the learned counsel for the 4th Respondent that issue 3 did not arise therefrom. The complaints on those two grounds are rooted on whether the Appellant by his conduct is estopped from commencing an action or complaining.
In regards to Ground Three of the objection the learned counsel for the Respondent submitted that the Appellant’s Brief of argument dwelled extensively on Jurisdiction and locus standi when there is no ground questioning jurisdiction of the court.
The law remains trite that issues for determination must arise from grounds of appeal like I earlier stated. Any argument on an extraneous point is of no value and should be discountenanced. The Jurisdiction and locus standi of the Appellant are not grounds of complaint in any of the Grounds of Appeal thus any argument therein is worthless.
Ground four of the objection raised the point that grounds seven, eight, nine and ten of the appeal have been abandoned as there are no issues formulated from grounds seven to Ten of the Notice of Appeal. The Appellant conceded to the submission of the 4th Respondent on that point.
Where no issue for determination is formulated from a particular ground of appeal that ground of appeal is deemed abandoned by the appellant and the appropriate order to make is one of strike out. See Bhojsons Plc. v. Daniel – Kalio (2006) 5 NWLR (Pt. 973) 330 SC.
Consequently grounds seven, eight, nine and ten in the Notice of Appeal from which no issue have been distilled for determination are deemed abandoned and are hereby struck out.
The Notice of Preliminary objection succeeds in part as I hold issue 1 is incompetent and is hereby struck out. Consequently Grounds 1 and 2 tied to issue 1 are struck out. I have rephrased earlier issue 2 tied to grounds 3 and 4 to now read issue 1 which read thus:
“Whether the 4th Respondent as a member of the 1st Respondent was legible at the time of the party’s primary election to contest the election for the House of Representative.”
The submission of the Appellant is that the 4th Respondent was returned as the House of Representative candidate of the 1st Respondent for Lokoja/Kogi Federal constituency in reckless disregard of the party’s constitution and guidelines for primary election. It is his further submission that the return of the 4th Respondent as the candidate of the 1st Respondent was done in reckless disregard of schedule 1 clause 2(iii) of the 1st Respondents constitution and section 87 (9) of the Electoral Act 2010 (as Amended).
The 4th Respondents counsel submitted that the Appellant cannot rely on the weakness of the defence to succeed as the duty on him is to produce evidence that the 4th Respondent did not pay subscription fee three months before the 1st Respondent’s primary election. The fulcrum of this issue is whether the 4th Respondent complied to schedule 1 clause 2 (iii) of the constitution of the Congress for Pogressive Change (CPC).
The 4th Respondent is presently a member of the House of Representatives representing Lokoja/Kogi Federal constituency. The Appellant and 4th Respondent expressed interest to vie for the House of Representatives seat. The two of them were cleared by the 1st Respondent to contest the election. The Election was conducted on the 9th of January, 2011 and the 4th Respondent was declared the winner of the election by the 1st Respondent. The 4th Respondent’s name was forwarded to the 3rd Respondent as the candidate of the party to contest the General election.
The Appellant’s claim is principally founded on legibility of the 4th Respondent to contest the primary election and the non compliance with the provisions of schedule 1 paragraph 2 (iii) of the 1st Respondent constitution.
Schedule 1 paragraph 2 (i), (ii), (iii) read thus:
“(i) Membership of the Party shall be renewed annually on payment of the prescribed subscription fees.
(ii) Membership shall automatically lapse if the subscription fee of a member is not received within three months after the due date, provided that a member whose membership terminates in this manner shall be re-admitted into the Party upon the payment of all arrears of the said subscription.
(iii) Provided that in an election year, only members who had paid their subscription 3 months before primaries shall be eligible to vote and be voted for.”
The reproduced subparagraphs should be read conjunctively inorder to convey the intendment of the draftsmen. Sub paragraph (iii) is a proviso to sub-paragraphs (i) and (ii).
Schedule 1 of the 1st Respondents constitution set out the rules to guide members and prospective members.
Paragraph 1 requires that the prospective members of the party shall be registered through ward branches to which they shall have applied and subsequently accepted and enrolled as party members.
Subparagraph (ii) provides that members shall receive membership cards through the ward branches of the party upon payment of the prescribed fee. What is manifest in paragraph 1 of schedule 1 and paragraph 2 of schedule 1 is that whilst the former prescribed Rules for prospective member’s registration and membership card, the later stipulates the mode for the renewal of membership by the party.
Clearly from the distinction between paragraph 1 and paragraph 2 of schedule 1. It is apparent that the Appellant from his claim in the court below is not contesting the 4th Respondents’ membership of 1st Respondent; rather he is challenging his eligibility to be voted for pursuant to paragraph 2 sub (iii) of the 1st Respondent constitution. Ineffect did the 4th Respondent renew his membership or was his membership subscription fee paid 3 months preceding the election.
The 4th Respondent in his counter affidavit at pages 101 of the Record of Appeal in paragraph 13 deposed to the following facts:
“Paragraph 13: That I joined the 1st defendant after being registered at ward E in Kabbaw Area of Lokoja. My membership card is attached as exhibit C.”
This issue of membership was not contradicted nor sufficiently challenged. In paragraph 17 of the counter affidavit the 4th Respondent averred that the leadership of the 1st Respondent offered him all the requisite forms needed to vie for the election. Paragraph 21 of the 4th Respondent unchallenged averment is that the 1st Respondents guide line did not make the payment of subscription fees of three months before primary election a requirement for qualification to contest the primary election of 09/01/2011. The inference is that it was not mandatory to pay subscription fee.
These facts were not credibly contradicted by the Appellant. Confirming the 4th Respondents averment the chairman of Gegu-North Ward of the 1st Respondent in his counter affidavit to the Appellants further affidavit at pages 157 and 159 of the Record of Appeal averred thus in paragraph 12:
“That the 1st Respondent was looking for members and did not collect registration or subscription fees from anybody as I was not asked to pay registration or subscription fees of any amount even as the chairman of the 1st defendant in Gegu-north.”
Ineffect the 1st Respondent did not collect registration or subscription fees from anybody as they were not asked to pay registration or subscription fees of any amount even as the chairman of the 1st Defendant in Gegu-north. The deponent went further to challenge the Appellant to produce evidence of his own payment of the subscription fee.
The deposition of the chairman of the 1st Respondent in the Gegu-north ward invokes the sermon that the civil court should allow political parties settle their internal affairs. It is obvious from the averments in the affidavits and counter affidavits that the 1st Respondent prescribed rules in their constitution which they unilaterally can waive when it suits their purpose. Schedule 1 paragraph 2 (iii) requires that members contesting the primaries should pay their subscription 3 months before primaries to be eligible to be voted for.
The chairman of the 1st Respondent in Gegu-north acknowledged he was not asked to pay subscription fee. It must be borne in mind that the 1st Respondent cleared the 4th Respondent to participate in the primary election, therefore there is an implied waiver granted to the 4th Respondent by the 1st Respondent to contest in the party primaries by such conduct. I must state that political parties remain the superior authority in matters of sponsorship of candidates for General Election.
The court should not order a political party to sponsor a particular party aspirant unless there is a glaring contravention of the provisions of the Electoral Act or the 1999 Constitution in the course of the primary election.
To underscore the 1st Respondent resolute to determine its own internal disputes the interpretation section under Article 17 vest the power to interprete any section of the party constitution or schedule on the Board of Trustees as the final body. Under schedule (iii) on nomination of candidates for election, the clearance of an aspirant for primary election nomination is set out under paragraph 7 of the 1st Respondent constitution. The duty on the 4th Respondent is to show he is a registered member of the party and satisfy the requirements for elections as stipulated in the constitution and the Electoral Act.
The Appellant has not shown any contravention of the electoral or constitutional provision on eligibility to participate in primary elections which are conditions precedent to clearance of the 4th Respondent to contest the party primary. The Appellant’s claim is on eligibility based on payment of subscription fees. It is not rooted on the fact that he won the primaries, rather the dispute is on the 4th Respondents legibility to participate and be voted for in the election. The claim the 4th Respondent was not eligible by party guidelines for 2011 to be voted for was not established by the Appellant as rightly found by the court below. All members of the 1st Respondent are bound by the provisions of their constitution, rules and practice. I have no reason to interfere with the findings and decision of the court below which is in line with the provision in the constitution of the 1st Respondent.
The Appellant also referred the court to section 87 (9) of the Electoral Act 2010 as amended. Section 89 (9) stipulates thus:
“Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guideline of a political party has not been complied with in the selection or nomination of a candidate of a political party may apply to the Federal High Court of a State for redress.”
Section 87(9) of the Electoral Act recognizes a right of an aspirant who complains that the provisions under the Act and guideline of a political party has not been complied with in the nomination of a political party to seek for redress in the High Court. That provision in my view is clear and unambiguous. However, the Apex court has set a distinction in recent cases that the political party has the final say in nomination of party members in Primary Election. The Supreme Court decision in a catalogue of cases that sponsorship of candidates for elections is in the exclusive domain of the political party is as at today binding on all courts pursuant to Section 287 of the 1999 Constitution. In Onuoha v. Okafor (1987) 2 SC NLR 244. The Supreme Court said:
“The party, like any other corporation operates within the guidelines, the powers and duties set out in its constitution. All its members are bound by its provisions and their right and obligations created by their constitution can be remedied as provided by the constitution if breached by any of its members.
The failure to sponsor the Appellant cannot be said to be in breach or ultra vires the powers of the N.P.P, because the Appellant won the nullified nomination or because the Appellant paid N5, 000.00 to contest the nomination.”
Therefore, sponsorship is not a Right guaranteed to Appellant under the constitution of the 1st Respondent or the 1999 Constitution. I resolve issue one against the Appellant in favour of Respondent. See Senator Yakubu Garba Lado & Ors v. Congress for Progressive Change (CPC) & Ors (2011) LPELR SC 157/2011 (CON).
Issue 2 previously issue 3 is whether the Appellant by his participation is estopped from complaining or commencing this action. The learned trial judge held at page 495 of record:
“By this I mean that it is my finding that the plaintiff took part in the primary election without any complaint. His acquiescence is very glaring; therefore plaintiff’s claim in this action is adversely affected thereby. The conduct of the plaintiff has become an estoppel against him concerning the primary election of the 1st Defendant. I find that the plaintiff having taken part in the primary election cannot be heard now to complain”
The learned trial Judge’s evaluation of exhibit ABA 7a and Exhibit ABA 7b by holding the complaint contained therein were not timeously is wrong. The Appellant filed formal complaint on the ineligibility of the 4th Respondent dated 9th January, 2011 and the second complaint dated 10th January, 2011 to his political party. This step amounted to formal complaints. Therefore, his participation in the primaries cannot be construed as estoppel against him concerning the primary election of the 1st Respondent in the light of the provisions of section 87 (9) of the Electoral Act as amended. Appellant complained and exercised his statutory and constitutional right to participate in the party primaries.
By section 87(9) of the Electoral Act as amended he has a right as an aspirant to seek redress in court that right cannot extinguish because he participated rather it qualifies him to seek redress as an aspirant. On the issue of whether the court can order substitution of the 4th Respondent, the learned trial Judge on this issue said at Page 496 of the record:
“Once a candidate emerges as a result of the majority votes of the delegates in a primary election and the party then forwards the name of such candidate to the 2nd Defendant, it is not the place of the court to up-turn the decision of the delegates and the political party.”
The above decision is the correct position of the law. By section 33 of the Electoral Act, 2010 as amended, a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of the Act except in the case of death or withdrawal by the candidate. The Electoral Act set out the condition when to substitute a candidate, the present circumstance does not fall within such circumstance. This issue two is resolved against the Appellant in favour of the Respondent.
In the final analysis, that all the issues are resolved against the Appellant, the Appeal lacks merit and is dismissed. I affirm the decision of the court below in FHC/LKJ/CS/15/2011 delivered on 05/12/2011. I make no order as to cost.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother Regina Obiageli Nwodo, JCA just delivered and I agree entirely with the reasons given therein and the conclusions reached.
I am also of the view that there is no merit in the appeal and it is dismissed by me.
I abide by the consequential orders made in the lead Judgment.
EJEMBI EKO, J.C.A.: The Congress for Progressive Change (CPC), the 1st Respondent in the appeal, regarded the 4th Respondent as its member. The CPC sponsored him as its candidate for the election to the House of Representatives for Lokoja/Kogi Federal Constituency in the April 2011 general elections.
The appellant and the 4th Respondent contested in the CPC’s internal elections for the nomination of the CPC’s candidate for the said Federal Constituency. The 4th Respondent had defeated the Appellant in the said nomination election, or primary election. The Appellant participated in the said primary election inspite of his protest that the CPC, in allowing the 4th Respondent to contest against the appellant, was flouting its own constitution. He had taken out action on the originating summons after the said primary election. The substance of the suit, the subject of this appeal, is the Appellant’s challenge to the right of the CPC to waive in favour of the 4th Respondent some of the membership obligations; one of which is payment of the party’s subscriptions.
The main question in this appeal is whether the CPC can waive payment by a member of the party’s revenue.
The Electoral Act, 2010, as amended, particularly Section 87 thereof, does not concern itself with how Political Party, as the CPC, collects its revenue. The main focus of Section 87 of the Electoral Act is that candidates to be sponsored by each political party shall emerge through democratic process, as against the hitherto cases of imposition of candidates by powerful individuals or forces within a political party. That seems also to be the purpose, object and content of the CPC’s Guidelines for the Conduct of Primary Elections for nomination of its candidate made pursuant to Section 87 of the Electoral Act.
The point missed by the appellant in this appeal is; whether the CPC can waive the receipt of its revenue from a member? Waiver is the intentional or voluntary relinquishment of a known legal right. See ARIORI v. ELEMO (1983) 1 SCNLR 1 followed and applied in a number cases by this Court including OMEGA BANK PLC v. GOVT., EKITI STATE (2007) 16 NWLR [pt.1061] 445 at 468; JEJE v. UBA PLC (2007) ALL FWLR [pt.381] 1783 at 1794, etc.
This issue of waiver was a very crucial point in the decision appealed. The entire suit of the appellant at the trial court rests on that act of the CPC allowing the 4th Respondent to contest the primary election with the appellant, and thereafter accepting him as a candidate to be sponsored when the 4th Respondent had allegedly not paid his subscription up to date. This informed the decision of the trial court at page 487 of the Record that –
It appears from the evidence, that the 1st Defendant when “screening” and “clearing” the plaintiff and 4th Defendant as eligible candidates for the primary election did not require any of them to tender any evidence of payment of subscription fees. In my view the act of screening and clearing both the plaintiff and the 4th Defendant by the 1st Defendant to contest the primary election amounts to 1st Defendant exercising the authority vested in it by Article 17 which decision ought to be final. The plaintiff by instituting this action shows that he does not agree with the act of the 1st Defendant.
It appears the appellant protested the decision of his party to allow the 4th Respondent contest in the primary election, and he was overruled. Article 17 of the CPC Constitution makes the Board of Trustees of the Party the “final court” within the party. The said Board of Trustees performs quasi-judicial functions. The decision of this body binds all party members, including the appellant, on whether the party can allow aspirant to contest in its primary election even when it is alleged, as in the instant, that such an aspirant had not paid the subscription as and when due.
The crucial decision of the trial court at page 487 of the record has not been appealed, and none of the three issues formulated by appellant raises any eye brow on it also. The law is trite that it is therefore not an issue in the appeal. All arguments in the appeal that non-payment of the subscription by the 4th Respondent vitiated his nomination and candidature on the platform of the CPC are begging the real issue. The CPC, as a political party, can waive payment and receipt of its own revenue, which is its legal right.
There is no substance in this appeal. The mere fact that the appellant protested the qualification of the 4th Respondent to contest the primary election with him; he was overruled by his party, and thereafter went and contested the primary election with the 4th Respondent, which he lost, before resorting to this action is enough evidence of his prevarication. That is even enough to defeat this cause.
The appellant seems to think, in the manner his reliefs are couched, that he has a right to be CPC’s candidate and that the CPC, a political party, owes him that duty. It is clear to me that by virtue of Section 65 (2) (b) of the Constitution 1999, as amended, the election to the National Assembly vests exclusively in the political party. I do not, accordingly, think that any right vests in the appellant to seek an order mandating and or compelling the CPC or any other political party, to accept and maintain him as its candidate. My learned brother, REGINA O. NWODO, JCA has exhaustively dealt with this issue in the judgment just delivered that such right does not vest in the appellant against the CPC, 1st Respondent. I hereby adopt the said judgment, including the resolution of the preliminary objection.
The appeal is hereby dismissed. The judgment of the trial court in the suit no FHC/LKJ/CS/15/2011 delivered on 5th December, 2011 is hereby affirmed.
Appearances
Appellant Appearing in person For Appellant
AND
4th Respondent present
M. T. Musa for the 4th Respondent , 1st, 2nd, and 3rd Respondents absent each served on 04/05/2012. For Respondent
