PEOPLES DEMOCRATIC PARTY & ORS v. USMAN MAHDI BADAIRE & ORS
(2019)LCN/12861(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2019
CA/J/317/2018
RATIO
APPEAL: WHETHER AN APPELANT CAN FILE MORE THAN ONE NOTICE OF APPEAL
“It is trite that the law permits, allows and so recognizes that an appellant may file more than one Notice of Appeal against the decision of a lower Court, within the period of time stipulated and prescribed for doing so by the law Tukur Vs Government of Gongola State (1988) 1 SCNJ, 54; Adeleke Vs Oyo State House of Assembly (2006) ALL FWLR (319) 862, Integrated Data Services Ltd Vs Adewumi (2005) ALL FWLR (292) 145. The only stricture is that he can only rely on one of the notices of appeal in prosecuting the appeal.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: WHETHER AN ISSUE THAT WAS NOT RAISED AT TRIAL COURT CAN BE RAISED AS A GROUND FOR APPEAL
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue. The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1, Ashaka Cement Plc Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR 46541(SC).” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
STATUTE: INTERPRETATION OF STATUTE
“It is trite that in interpreting a statute, the Court must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. It is also elementary that in interpreting a statute, nothing is to be added to or taken from its provisions Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
STATUTE: WHETHER A COURT OF LAW CAN ADD TO THE PROVISION OF A STATUTE
“It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
Justice
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY
2. NATIONAL CARETAKER CHAIRMAN (ALH. AHMED MOHAMMED MAKARFI)
3. STATE CARETAKER CHAIRMAN (ALH. ABDULMALIK MAHMUD)
4. COMMITTEE CHAIRMAN STATE CONGRESS ELECTION OF BORNO STATE (PDP) (HON. SABO GARBA)
5. ZANNA GADDAMA
6. BABA AHMEDAppellant(s)
AND
1. USMAN MAHDI BADAIRE
2. YUSUF MOHAMMED DIKKO
3. BABA SHERIFF MODU
4. KELLU ABBA
5. CARETAKER CHAIRMAN, PDP BAYO LOCAL GOVERNMENT AREA (YUSUF MOHAMMED PETAL)
6. CARETAKER CHAIRMAN, PDP SHANI
7. LOCAL GOVERNMENT AREA (MOHAMMED SAMAILA)
8. RETURNING OFFICER, PDP SHANI LGA (ADO MAKANIKI)
9. ELECTORAL OFFICER, PDP SHANI LGA (ABUBAKAR BELLO)
9. ELECTORAL OFFICER, PDP BAYO LGA (ISA B. MOHAMMED)
10. RETURNING OFFICER, PDP BAYO LGA (SALISU GALADIMA)Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court sitting in Maiduguri, Borno State delivered by Honorable Justice M. T. Salihu in Suit No FHC/MG/CS/76/2017 on the 4th of July, 2018.
The first to the fourth Respondents were the plaintiffs in the lower Court and the Appellants and the fifth to the tenth Respondents were the first to the twelfth defendants and the action was commenced by an Originating Summons wherein the first to the fourth Respondents posed three questions for determination; to wit:
i. Whether by virtue of the provisions of the Constitution of the first Appellant read together with the first Appellants Guidelines for the conduct of Ward, Local Government Area, State Congresses and National Convention of the first Appellant, the first to the fourth Respondents have not won and ought to be declared as winners to the offices of State Party Chairman, State Party Secretary, State Party Youth Leader and State Party Women Leader having satisfied the provisions of Section 25(4) of the Constitution of the first Appellant and the Guidelines for the conduct of election held on the 11th of November, 2017.
ii. Whether by the provisions of the Constitution of the first Appellant, the Appellants and the fifth to the tenth Respondents have any vires or power to conduct another election on the 25th of November, 2017 into State Congress of Borno State Peoples Democratic Party without the knowledge of the first to the fourth Respondents who are candidates to the election conducted on the 11th of November, 2017 with the unelected delegates of the Wards in Shani and Bayo Local Government Areas at Gombe, Gombe State.
iii. Whether by virtue of the provisions of the Constitution of the first Appellant and its Guidelines for the conduct of State Congress, the Appellants and the fifth to the tenth Respondents have any vires or power to conduct the State Congress election of PDP Borno State outside Borno State, in Gombe State, into the Borno State Executive Committee.
Consequent on the resolution of the three questions, the first to the fourth Respondents prayed for the following orders:
i. A declaration that the Appellants and the fifth to the tenth Respondents have no such power under the Constitution of the first Appellant and the guidelines for the conduct of Ward, Local Government Area, State congress and the National Convention of the first Appellant to conduct the State Congress into Borno State Executive Committee of the first Appellant having regard to the election conducted on the 11th day of November, 2017 which showed the clear winners and having complied with the provisions of S. 25 (4) of the Constitution of the first Appellant.
ii. A declaration that the purported election conducted on the 25th day of November, 2017 at Gombe Town, Gombe State into the Borno State Executive Committee is unconstitutional, null and void and of no legal effect having regard to its conduct that was contrary to the provisions of the first Appellants Constitution and its guidelines of the conduct of various election into the State Executive Committee and the unlawful participation of the purported delegates who are not legally elected in accordance with the Constitution of the first Appellant from Bayo and Shani Local Government Areas.
iii. An order nullifying the election conducted on the 25th day of November, 2017 at Gombe Town, Gombe State having not complied with the provisions of the first Appellants Constitution and nullifying the declaration of result of the election conducted at Gombe State as being unconstitutional, null and void of no legal effect whatsoever.
iv. An order declaring the first to the fourth Respondents as the winners of the election conducted on the 11th of November 2017 having complied with the provision of Section 25(4) of the first Appellants Constitution and its Guidelines for the election.
v. An order of perpetual injunction restraining the fifth and sixth Appellants, their agents, servants, privies and or their representatives or in whatever manner or whosoever from, parading themselves as the State Party Chairman and State Party Secretary of Borno State Executive Committee and/or restraining them from acting and performing the functions of state Chairman and State Party Secretary respectively and in whatever capacity which tenure is for a period of four (4) years in accordance with the provisions of the first Appellants Constitution.
vi. An order directing the first to the third Appellants to immediately swear in the first to the fourth Respondents as the State Party Chairman, State Party Secretary, State Party Youth Leader and State Party Women Leader of the Borno State Executive Committee respectively.
The Originating Summons was supported by an affidavit and to which were attached several exhibits and also by further affidavit deposed on the 14th of May, 2018 and to which were also attached several exhibits. Counsel to the first to the sixth Appellants filed a notice of preliminary objection dated the 22nd of December, 2017 to challenge the jurisdiction of the Federal High Court to hear the matter and the first to the sixth Appellants also filed a counter affidavit to the Originating Summons and it was deposed on the 30th of April, 2018 with several documents attached. The fifth to the tenth Respondents also filed a joint counter affidavit to the Originating Summons and it was deposed on the 15th of January, 2018 and they also filed a further affidavit to countermand the counter affidavit of the Appellants and this was deposed to on the 18th of May, 2018. Counsel to the parties filed their respective written addresses on the preliminary objection and on the Originating Summons.
The case of the first to the fourth Respondents on the affidavits was that the first Appellant conducted its Local Government Congresses elections nationwide, including in Borno State, on the 4th of November 2017 and that following petitions complaining of irregularities in the elections conducted in Gwoza, Shani, Bayo, Maiduguri and Hawul Local Government Areas of Borno State, an Appeal Committee was set up by the first Appellant to look into the complaints. It was their case that the Appeal Committee out-rightly cancelled the elections that took place in Shani Local Government Area and recommended the cancellation of the elections that took place in Gwoza, Bayo, Magumeri and Hawul Local Government Areas of Borno State. In other words, the elections in the five Local Government Areas to select delegates that will participate in the State Congress were cancelled and/or recommended for cancellation; a report signed only by the Secretary of the Appeal Committee was attached as exhibit. It was their case that the seventh to the tenth Respondents were the officers appointed to conduct the Local Government Congress elections in Shani and Bayo Local Government Areas by the third Appellant, and who was himself appointed by the first and second Appellants.
It was the case of the first to the fourth Respondents that notwithstanding the recommendation of the Appeal Committee, delegates from Gwoza, Magumeri and Hawul Local Government Areas of Borno State participated at the State Congress elections of the first Appellant held in Borno State on the 11th of November, 2017 to elect the State Chairman, State Secretary, State Youth Leader and State Women Leader, despite protests made to the first to the third Appellants, and this was allowed for purpose of manipulating the elections in favour of the fifth and sixth Appellants who were contesting for the offices of State Chairman and State Secretary respectively. It was their case that delegates from twenty five, out of the twenty seven Local Government Areas of Borno State, excluding Shani and Bayo Local Government Areas, took part in the State Congress election that took place on the 11th of November, 2017 and that the fourth Appellant announced at the election that 944 delegates were accredited to vote. It was their case that the outcome of the votes cast by the delegates at the election of the 11th of November, 2017 was that the first Respondent scored 525 votes as against the fifth Appellant who scored 477 votes for the office of State Chairman, the second Respondent scored the 493 votes as against the sixth Appellant who scored 486 votes for the office of State Secretary, the third Respondent scored 528 votes against one Alhaji Baba Usman who scored 454 votes for the office of State Youth Leader and the fourth Respondent scored 570 votes against one Hajiya Gambo Barma who scored 419 votes for the office of State Women Leader.
It was the case of the first to the fourth Respondents that the third Appellant refused to release the result of the election at the conclusion of voting on the ground that the delegates from Shani and Bayo Local Government Areas did not participate in the voting and he stated that the results will be not be released until elections were held with the participation of the delegates from the two Local Government Areas. It was their case that by the Guidelines of the first Appellant for the said election, only two thirds of the accredited delegates from the three Senatorial Districts of the State was necessary to form a quorum for the election and that the delegates present at the election of 11th of November, 2017 met and surpassed the required quorum and that their protests to the second Appellant were rebuffed. It was their case that on the 25th of November, 2017, the first to the fourth Appellants proceeded to conduct another Borno State Congress election in Gombe, without notice to them, and that some purported delegates from Shani and Bayo Local Government Areas voted at the election and meanwhile no fresh Local Government Congresses Election was conducted in either Shani or Bayo Local Government Area by the seventh to the tenth Respondents, after the cancellation of the earlier election by the Appeal Committee, to select the accredited delegates prior to this time.
The case of the Appellants in their counter affidavit was that the Ward and Local Government Congress Elections held in Gwoza, Shani, Bayo, Magumeri and Hawul Local Government Areas on the 4th of November, 2017 were free and fair and that the alleged irregularities were not substantial enough to affect the outcome of the election and that none of the results of the election was cancelled and that the Appeals Committee of the first Appellant only made recommendations to the National Caretaker Committee for approval and that the National Caretaker Committee did not approve the recommendations. It was their case that the seventh to the tenth Respondents were not appointed as the electoral and returning officers of Shani and Bayo Local Government Areas and that the persons appointed were Yahaya Mohammed and Adamu Ali for Shani Local Government Area and Yusuf Maina Hassan and Alhaji Idris Sarki for Bayo Local Government Area. It was their case that the Ward Congress Election in Borno State took place from the 28th to the 31st of October, 2017 and that report of the election was submitted to the first Appellant and that a report of the Borno State Congress held on the 11th of November, 2017 was also prepared and by reason which the Election Committee of the Borno State Congress election submitted its report to the National Caretaker Committee for consideration and approval; the reports of the Ward Congress Election and of the State Congress Election were attached as exhibits.
It was their case that all the petitions and complaints arising from the State Congress Elections were considered by the Appeal Panel set up by the first Appellant and that the Appeal Panel submitted its report to the National Caretaker Committee along with its recommendations for confirmation and approval and the report signed by only the Chairman was attached as an exhibit. It was their case that upon a consideration of all the reports, the National Caretaker Committee directed that State Congress Election by the delegates from Shani and Bayo Local Government Areas should be held in Gombe on the 25th of November, 2017 in the presence of INEC officers, Media and Security Agencies and Party Officials and it appointed a five man election committee to oversee the election. It was their case that the elections were held and that when votes at the election were tallied with the votes from the earlier election of the 11th of November, 2017, the fifth and the sixth Appellants emerged victorious as the State Chairman and State Secretary respectively while the third and fourth Respondents won as the State Youth Leader and State Women Leader; the report of the Election Committee and the result sheets of the election were attached as exhibits.
It was their case that the first to the fourth Respondents were present and were represented by agents at the election conducted in Gombe on the 25th of November, 2017 and that the decision to suspend the election of the 11th of November, 2017 because of the inability of the delegates from Shani and Bayo Local Government Areas to participate in the election was collective because the votes of the number of the delegates had the potential of materially affecting the outcome of the election. It was their case that Shani and Bayo Local Government Areas had authentic lists of delegates for the election; the result sheets for the Ward Elections were attached, and that the scheduling of the election for Gombe was for security reasons. It was their case that no results were declared at the conclusion of the elections held on the 11th of November, 2017 and that the elections were declared inconclusive and to await the outcome of the election by the delegates from the two Local Government Areas.
The case of the fifth to the tenth Respondents on the counter affidavit was that the fifth and sixth Respondents were appointed as the Caretaker Chairmen for Bayo and Shani Local Government Areas respectively by the first and second Appellants with the mandate to run the administrative and political affairs of the first Appellant in the respective Local Government Areas, and the seventh and eighth Respondents were the Returning and the Electoral Officers of Shani Local Government Area and the ninth and the tenth Respondents were Electoral and Returning Officer of Bayo Local Government Areas. It was their case that sometime in October 2017 the first Appellant invited the Caretaker Chairmen of the twenty seven Local Government Areas of Borno State to the Party Secretariat in Maiduguri to collect materials for the election of Ward and Local Government Executives of the Party and that all the Caretaker Chairmen attended and met with the members of the State Electoral Committee of the first Appellant. It was their case that elections material were given to the Chairmen of twenty five of the Local Government Areas and no election materials were given to the fifth and sixth Respondents for Bayo and Shani Local Government Areas, despite all the efforts they made to collect the materials. It was their case that by reason of the non-availability of the election materials, no Ward or Local Government election was conducted in either of the two Local Government Areas and thus no delegate was produced in either of the two Local Government Areas for participation in the State Congress Election.
Counsel to the parties filed written addresses on the preliminary objection of the Appellants and on the substantive claim of the first to the fourth Respondents on the Originating Summons. The lower Court took arguments on the preliminary objection along with the substantive claims on the Originating Summons and it, in a considered judgment delivered, dismissed the preliminary objection of the Appellants and granted the substantive claims of the first to the fourth Respondents. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal containing two grounds of appeal and dated the 5th of July, 2018 against it. The records of appeal were compiled and transmitted to this Court on the 25th of July, 2018. The Appellants thereafter filed another notice of appeal dated the 13th of August, 2018 and containing six grounds of appeal.
In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments on the 2nd of November, 2018 and the brief of arguments was deemed properly filed and served on the 8th of November, 2018. The Respondents filed a notice of preliminary objection challenging the competence of the appeal on the grounds that it was predicated on the notice of appeal filed in this Court on the 14th of August, 2018, and not on the one dated 5th of July, 2018 which was compiled and transmitted as part of the records of appeal, and that the time provided for the hearing of the appeal of this nature by Section 285(12) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) had elapsed. Counsel to the Respondents filed a joint brief of arguments, incorporating arguments on the preliminary objection, and it was dated the 19th of January, 2019, filed on the 21st of January, 2019 and deemed properly filed and served on the 24th of February, 2019. Counsel to the Appellants filed a Reply brief of arguments dated the 22nd of January, 2019 on the 24th of January, 2019. At the hearing of the appeal, Counsel to the parties argued the preliminary objection of the Respondents on the basis of the written arguments contained in their respective briefs of arguments thereon and thereafter adopted the arguments in the briefs of arguments on the substantive appeal.
This Court will naturally commence its deliberations in the appeal from the consideration of the grounds of the preliminary objection of the Respondents to the competence of the appeal. The preliminary objection was predicated on two grounds; namely:
i. That the notice of appeal dated the 13th of August, 2018 and filed on the 14th of August, 2018, and upon which the Appellants predicated their brief of arguments, was filed outside the time allowed by Section 285(11) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) and that the appeal was statute barred by Section 285(12) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017); and
ii. That the notice of appeal dated the 13th of August, 2018 and filed on the 14th of August, 2018, and upon which the Appellants predicated their brief of arguments, was not part of the records transmitted to this Court from the lower Court.
In arguing the preliminary objection, Counsel to the Respondents Counsel referred to the provisions of Section 285(11) and (12) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) which say that an appeal from a pre-election matter shall be filed within fourteen days from the date of delivery of judgment and that a pre-election matter shall be heard and disposed within sixty days from the date of the filing of the appeal.
Counsel stated that the lower Court delivered judgment on the 4th of July, 2018 and that the notice of appeal upon which the Appellants predicated their arguments in this appeal was filed on the 14th of August, 2018, outside the fourteen days allowed and that similarly a period of sixty days has since elapsed since the filing of the appeal and that the appeal was yet to be disposed of. Counsel stated that the appeal was both incompetent and statute barred and that a statute of limitation is one which provides that no Court shall entertain proceedings for the enforcement of a certain right if such proceedings were commenced after the lapse of a definite period of time. Counsel stated that statute of limitation removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and unenforceable cause of action and he referred to the case of CAN Vs INEC (2014) All FWLR (Pt 716) 474.
Counsel stated that it was a requirement of the Rules of the Court of Appeal that a notice of appeal must be transmitted with the records of appeal from the lower Court to this Court and that where it is not so transmitted it cannot form the basis of an appeal and the appellant will be deemed not to have transmitted the records of appeal. Counsel stated that the notice of appeal dated the 13th of August, 2018 and filed on the 14th of August, 2018, and upon which the Appellants predicated their brief of arguments, was not part of the records transmitted to this Court from the lower Court and that the net effect is that the Appellants have no brief of arguments before the Court and that this Court can suo motu dismiss the appeal under Order 19 Rule 2 of the Court of Appeal Rules for want of prosecution. Counsel urged the Court to uphold the preliminary objection and to strike out the appeal.
In his response arguments, Counsel to the Appellants stated that the preliminary objection of the Respondents was legally flawed because, from the nature of the questions submitted for determination in the lower Court and the reliefs claimed, the matter was not a pre-election matter within the provisions of Section 285(14) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) and that as such the time limits in the provisions of Section 285(11) and (12) thereof were inapplicable and the time periods for the appeal were governed by the provisions of Section 24 of the Court of Appeal Act and Orders 8 and 19 of the Court of Appeal Rules, 2016. Counsel reproduced the provisions of Sections 285(9) to 285(14) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) and stated that the definition of a pre-election in Section 285(14) that it is a matter concerning the selection or nomination of candidates for participation in an election was plain and clear and that the Court is obligated to give the words their natural meaning and he referred to the case of Dickson Vs Sylva (2016) LPELR 41257(SC). Counsel referred to the long title of the Fourth Alteration Act No 21 of 2017 and to the case of the first to the fourth Respondents in the lower Court and stated that it was obvious that the dispute before the lower Court arose from the outcome of the conduct of party congresses for the election of Executive Members of the first Appellant and does not come within the definition of pre-election matter in 285(14) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017).
Counsel stated further that upon the entry of judgment by the lower Court on the 4th of July 2018, the Appellants caused a notice of appeal to be filed on the 5th of July, 2018 and ensured the compilation and transmission of the records of this appeal to this Court on the 25th of July, 2018 and that the appeal was effectively entered in this Court on that date. Counsel stated that it was subsequent to this that the Appellants caused to be filed another notice of appeal dated the 13th of August, 2018 on the 14th of August 2018, and this was still within the three months period allowed them to appeal against the judgment of the lower Court, and that it is trite law that once an appeal is entered in this Court, the lower Court loses jurisdiction to deal with the matter and all applications and processes are to be filed in this Court.
Counsel stated that there was thus no way the notice of appeal filed on the 14th of August, 2018 could have been transmitted with the records of appeal from the lower Court and that the law is that an appellant is allowed to file more than one notice of appeal within the time allowed by the law to appeal and the only stricture being that the appellant can only rely on one of the notices of appeal to prosecute the appeal and he referred to cases of Bilante International Ltd Vs Nigeria Deposit Insurance Corporation (2011) 8 SCM 40, Onwe Vs The State (1975) 9-11 SC 41 and Registered Trustees of the Rosicrucian Order, Amorc Nig Vs Awoniyi (1994) LPELR 3198(SC). Counsel stated that the brief of arguments of the Appellants was predicated on only one notice of appeal, the notice of appeal filed on the 14th of August, 2018 and it was thus in order. Counsel urged the Court to find no merit in the preliminary objection and to dismiss same.
The Court must say from the outset that the preliminary objection of the Respondents is totally misconceived, not well-thought out and downright frivolous. The dispute leading up to the commencement of the case in the lower Court arose from the conduct of the Borno State Congress election of the first Appellant to select members of the State Executive Committee of the first Appellant, particularly the offices of the State Chairman, State Secretary, State Youth Leader and State Women Leader. The time limits provided for in Section 285(11) and (12) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017), and upon which the Respondents predicated the first ground of their objection, are explicitly stated to be applicable to pre-election matters. Section 285(14) thereof defined a pre-election matter to mean any suit by:
a. An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party in respect of the selection or nomination of candidates for an election.
b. An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
c. A political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.
It is trite that in interpreting a statute, the Court must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. It is also elementary that in interpreting a statute, nothing is to be added to or taken from its provisions Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337.
Applying these principles of interpretation to the wordings of Section 285(14) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017), it is obvious that disputes arising from the conduct of election by a political party to select its State Executive Members do not come with the definition of the pre-election matters referred to and covered by the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017). Thus, the time limits provided for in Section 285(11) and (12) of the Constitution of the Federal Republic of Nigeria (as amended by the Fourth Alteration Act No 21 of 2017) are not applicable in this matter and do not act to bar the appeal of the Appellants in any way or manner.
With regards to the second ground of the preliminary objection, the records of appeal show that upon the delivery of judgment by the lower Court on the 4th of July 2018, the Appellants caused a notice of appeal to be filed on the 5th of July, 2018 and the records of appeal were compiled and transmitted to this Court on the 25th of July, 2018. The records of appeal were accepted by the Registry of this Court and the appeal was given an appeal number on the said 25th of July, 2018. By the provisions of Order 4 Rules 10 and 11 of the Court of Appeal Rules, the appeal was deemed entered in this Court on that day and from thence onwards, this Court became seised of everything to do with the matter and every application thereafter was to be made to this Court. It was thereafter that the Appellants decided to file another notice of appeal and they did file a notice of appeal in this Court on the 14th of August, 2018. The law is that the proper place for a party to file a notice of appeal after the appeal has been entered in the Court of Appeal is the Registry of the Court of Appeal, and not the Registry of the lower Court Shell Petroleum Development Corporation Vs Agbara (2016) 2 NWLR (Pt 1496) 353. Thus, the complaint of the Respondents that the notice of appeal ought to have been compiled and transmitted from the lower Court as part of the records of appeal is preposterous.
Further, it is not in contest that the date of filing of the second notice of appeal, the 14th of August, 2018, was within the period allowed the Appellants to appeal against the judgment of the lower Court. In other words, the Appellants filed two notices of appeal against the judgment of the lower Court and both were filed within the time allowed by law for filing of appeals. It is trite that the law permits, allows and so recognizes that an appellant may file more than one Notice of Appeal against the decision of a lower Court, within the period of time stipulated and prescribed for doing so by the law Tukur Vs Government of Gongola State (1988) 1 SCNJ, 54; Adeleke Vs Oyo State House of Assembly (2006) ALL FWLR (319) 862, Integrated Data Services Ltd Vs Adewumi (2005) ALL FWLR (292) 145. The only stricture is that he can only rely on one of the notices of appeal in prosecuting the appeal. In Tukur Vs Uba (2012) 6-7 MJSC (Pt IV) 156, the Supreme Court made the point thus:
“There is no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the Rules of Court. But whenever there are more than one Notice of Appeal and all the said Notices, were filed within the time so prescribed, the appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon.”
The Appellants were thus within their rights in filing two notices of appeal and it is not in contest that they have relied only on the notice of appeal filed on the 14th of August, 2018 in prosecuting this appeal. There was nothing wrong with the steps taken by the Appellants in the filing and the prosecution of this appeal.
This Court notes that it has become rampant for Counsel to file preliminary objection in every appeal, even where simple common sense dictates that there is no ground for it. It is true that a Court has a duty to hear and determine all applications filed by parties, but Counsel must understand that this is not a licence to file spurious, frivolous and vexatious applications that achieve no other goal except wasting the scarce judicial time of the Court; time that could have been better utilized to deal with more serious matters. It is a sign of desperation and bad advocacy and it does not help the cause of a party because it gives the Court the impression, very early on, that the Counsel does not know what he is doing and it might compromise the perspective of the Court of an otherwise meritorious and good response to the substantive appeal. The notice of preliminary objection of the Respondents is an epitome of improper use of the process of preliminary objection. It is a waste of the time of this Court. It fails in its entirety and it is hereby dismissed. This takes us to the substantive suit.
Counsel to the Appellants distilled three issues for determination in the appeal and these were:
i. Whether the lower Court had any jurisdiction to entertain the first to the fourth Respondents claim bearing in mind that matters relating to party congresses fall within the domestic affairs of political parties.
ii. Whether the case of the Appellant was rightly commenced by Originating Summons.
iii. Whether in view of the evidence on record, the lower Court was right in law to have granted all the reliefs sought by the Respondents.
Counsel to the Respondents agreed with the three issues for determination as formulated by Counsel to the Appellant and he adopted them. It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court V S Steel (Nig) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938)
1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.
The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1, Ashaka Cement Plc Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR 46541(SC). In the instant case, reading through the records of appeal, it is obvious that the second issue for determination formulated by Counsel to the Appellant was not one of issues canvassed or raised before the lower Court. The records of this Court do not show that the Appellant obtained leave to raise the issue in this appeal. It is thus not an issue that this Court can countenance in this appeal. The second issue for determination and the arguments canvassed thereon by the parties are hereby struck out.
This leaves the first and the third issues for determination and this appeal will be resolved on these two issues for determination and they will be treated as first and second issues for determination. The issues for determination shall be considered seriatim.
Issue One
Whether the lower Court had any jurisdiction to entertain the first to the fourth Respondents claim bearing in mind that matters relating to party congresses fall within the domestic affairs of political parties?
In arguing the issue for determination, Counsel to the Appellants referred to the cases of Okoye Vs Okonkwo (2006) All FWLR (Pt 332) 156 and Okolo Vs Union Bank of Nigeria (2004) All FWLR (Pt 197) 981 in restating the fundamentality of jurisdiction to adjudication of matters by a Court of law and he also referred to the case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341 in reiterating the constituent elements of jurisdiction as laid down by the Courts. Counsel reproduced the dispute submitted by the first to the fourth Respondents to the lower Court for adjudication and stated that their contention that the lower Court, the Federal High Court, lacked jurisdiction to entertain the action was premised on two grounds; namely (i) that none of the parties to the action was the Federal Government of Nigeria or any of its agencies; and (ii) that the subject matter of the action did not fall within the items listed in Paragraphs 251(a-r) of the 1999 Constitution as amended. In arguing the first ground of the contention, Counsel stated that looking at the parties to the action, it was not in doubt that the Federal Government of Nigeria was not a party and that none of the parties was an agency of the Federal Government and that the main reliefs in the action were not directed at the Federal Government or at any of its agencies and that as such the Federal High Court lacked the requisite jurisdiction to adjudicate on the matter and the proper Court was the State High Court and he referred to the cases of Kakih Vs PDP (2014) 15 NWLR (Pt 1430) 374 and Garba Vs Mohammed (2017) All FWLR (Pt 867) 420.
On the second ground of the contention, Counsel submitted that the issue of State Congresses, the substratum of the case of the first to the fourth Respondents before the lower Court, was a matter within the purview of political parties and disputes arising there from are intra-party and are strictly the internal affairs of the political party concerned and not one over which a Court has jurisdiction and he referred to the cases of Ozigbo Vs PDP (2010) 9 NWLR (Pt 1206) 601, Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310, Onuoha Vs Okafor (1983) 2 SCNLR 244, amongst others. Counsel conceded that Section 87(9) of the Electoral Act 2010 (as amended) provides an exception where the lower Court could intervene in the matters bordering on the internal affairs of political parties, but stated that the provision relates to the nomination and sponsorship of candidates for primary elections and not to party congresses which are solely a contract between the political parties and their members and he referred to the cases APC Vs Karfi (2018) 6 NWLR (Pt 1616) 479 and Daniel Vs INEC (2015) 9 NWLR (Pt 1463) 113 on the extent of the jurisdiction conferred by the provisions of Section 87(9) of the Electoral Act 2010 (as amended). Counsel stated that there is a world of difference between party congresses and nomination of candidates by political parties for election and he urged the Court to find that the lower Court was in error when it assumed jurisdiction in this matter. Counsel urged the Court to resolve the first issue for determination in favor of the Appellants.
In his response arguments, Counsel to the Respondents referred to the provisions of Section 251 of the 1999 Constitution (as amended) which, according to him, empowered the National Assembly to confer additional jurisdiction on the Federal High Court, outside those conferred by the section and he stated that in the exercise of this power the National Assembly conferred additional jurisdiction of the Federal High Court, as well as on the State High Court, in the Electoral Act 2010 (as amended) to hear and determine complaints about conduct of primaries within political parties to elective offices. Counsel referred to the case of Ahmed Vs Ahmed (2013) All FWLR (Pt 699) 1025 in reiterating the established principle that jurisdiction of a Court to hear and determine a matter is conferred by statute and also the cases ofAnyanwu Vs Ogunewe (2014) All FWLR (Pt 738) 1012, Inakoju Vs Adeleke (2007) All FWLR (Pt 353) 3, amongst others, in asserting that it is the originating processes of the claimant that should be looked at in determining the jurisdiction of a Court to hear a matter. Counsel stated that looking at the originating processes filed by the first to the fourth Respondents, it is clear that the complaints center on the election of officers to hold offices of the State Executive Committee of the first Appellant which was held on the 11th of November, 2017 and in which the first to the fourth Respondents participated as aspirants.
Counsel stated that the election was conducted pursuant to the provisions of Section 87 (1) of the Electoral Act, 2010 and that the first to the third Appellants breached the Constitution and Guidelines of the first Appellant in not declaring the first to the fourth Respondents as the winners of the elections and that it was these breaches that constituted the cause of action of the first to the fourth Respondents and which is actionable under the provisions of Section 87 (10) of the Electoral Act, 2010 (as amended). Counsel stated that the assertion of the Counsel to the Appellants that the Federal Government or one of its agencies must be a party to an action for the Federal High Court to be vested with jurisdiction under Section 87 (10) of the Electoral Act, 2010 is incorrect as no such provision is contained in Section 87 (10). Counsel stated that moreover, where an action is properly constituted with a claimant possessing the legal capacity to sue and a defendant with the capacity to defend, as in the instant case, and the action has satisfied all the necessary preconditions for its institution, the fact that a necessary party was not joined is not fatal to the action and he referred to the cases of Ayorinde Vs Oni (2000) 3 NWLR (Pt 649) 348, AG Rivers State Vs AG Akwa-Ibom State (2011) All FWLR (Pt 579) 1023. Counsel stated further that the dispute in this matter was not the internal affairs of a political party and that it comes within the cases that a Court can interfere in by the provisions of Section 87 (10) of the Electoral Act as there was a breach of the Constitution of a political party in the conduct of primaries for elective positions in the party. Counsel urged this Court to find that the lower Court was right to assume jurisdiction and to resolve the issue for determination in favour of the Respondents.
As stated earlier, the Appellants raised and argued the issue of jurisdiction by way of a preliminary objection and which the lower Court heard along with the substantive suit. In overruling the preliminary objection, the lower Court stated in the judgment thus:
A Court is not competent to entertain any matter if all conditions precedent to the exercise of its power in hearing the matter are not fulfilled and in the case at hand learned Counsel for the first set of Defendants argument was that this Court lacks jurisdiction to hear and determine the suit brought to it by the Plaintiffs. The document to look at is the Plaintiffs statement of claim (herein the affidavit in support of the originating summons) and reliefs claimed. In the case at hand the reliefs the Plaintiffs are claiming centers on the election of officers to hold offices of the State Party of the Peoples Democratic Party held on the 11th of November, 2017. Plaintiffs before the Court contested for the positions/offices of State Chairman, State Secretary, State Youth Leader and State Women Leader respectively.
I have earlier stated in the course of this ruling that Plaintiffs action before the Court is that of election of party offices of Peoples Democratic Party, Borno State. The National Assembly Act for election is the Electoral Act 2010 (as amended). This Act of the National Assembly confers jurisdiction on this Court and the State High Court in the matter of election like the one at hand. In short both this Court and the State High Court have concurrent jurisdiction to hear and determine the suit Plaintiffs brought before this Court.
From all I have said above this Court is conferred with the jurisdiction to hear and determine the matter of the Plaintiffs under Section 87 (10) of the Electoral Act, 2010 (as amended). It is for this reason that the preliminary objection of the first set of Defendants must fail
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority Enyadike Vs Omehia (2010) 11 NWLR (Pt 1204) 92 and Abacha Vs Federal Republic of Nigeria (2014) 6 NWLR (Pt 1402) 43. It is the blood, life wire, bedrock and foundation of adjudication and without it the labourers therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552.
It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512. The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142.
Reading through the Originating Summons of the first to the fourth Respondents and the affidavit in support along with the exhibits attached thereto, it is very obvious that the dispute leading up to this case emanated from the elections held by the first and second Appellants and conducted by the third and fourth Appellants on the 11th of November, 2017 and 25th of November, 2017 to elect the State Executive Members of the Peoples Democratic Party, particularly for
41
the offices of State Party Chairman, State Party Secretary, State Party Youth Leader and State Party Women Leader. The first to the fourth Respondents were contestants in the election and their complaints were against the declaration of the fifth and sixth Appellants as the State Party Chairman and the State Party Secretary respectively in the outcome of the election. It is not in contest that the dispute and the complaints revolved around an intra-party matter. An intra-party dispute has been defined as a dispute between members of a political party inter-se or between a member or members, on the one hand, against the political party, on the other hand Peoples Democratic Party Vs Kwara State Independent Electoral Commission (2006) 3 NWLR (Pt 968) 565, Kalgo Vs Faruk (2008) LPELR 4495(CA), Labour Party Vs Oyatoro (2016) LPELR 40135(CA), Dahiru Vs All Progressives Congress (2017) 4 NWLR (Pt 1555) 218.
The law, as a general rule, is that an intra – party matter is entirely within the party’s internal affairs, exclusively and completely outside the province or competence of Courts or Tribunals Bakam Vs Abubakar (1991) 6 NWLR (Pt 199) 564, Abdulkadir Vs Mamman (2003) 14 NWLR (Pt 839) 1, Jang Vs INEC (2004) 12 NWLR (Pt 886) 46, Amaechi Vs INEC (2007) 9 NWLR (Pt 1040) 504, Ugwu Vs Ararume (2007) 12 NWLR (Pt 1048) 367 at 499 500, Pam Vs All Nigeria Peoples Party (2008) 4 NWLR (Pt 1077) 224, Ehinlanwo Vs Oke (2008) 16 NWLR (Pt 1113) 357, Nobis-Elendu Vs INEC (2015) 16 NWLR (Pt 1485) 197, Shinkafi Vs Yari (2016) 7 NWLR (Pt 1511) 340. An exception provided by statute to this general rule is contained in Section 87 (9) of the Electoral Act, 2010 (as amended) and which reads:
Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
This provision has been interpreted as by the Courts to invest both the Federal High Court and the State High Court with jurisdiction to entertain complaints regarding the selection or nomination of a candidate of a political party for election Salim Vs Congress for Progresssive Change (2013) 6 NWLR (Pt 1351) 501, Gassol Vs Tutare (2013) 14 NWLR (Pt 1374) 225, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is however, a very narrow and limited jurisdiction which has not derogated from the non-justiciability of a partys wide discretionary powers of choosing one of its members for the elective office Adedayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, Wushishi Vs Imam (2017) 18 NWLR (Pt 1597) 175, Peoples Democratic Party Vs Ezeonwuka (2018) 3 NWLR (Pt 1606) 187, Maihaja Vs Gaidam (2018) 4 NWLR (Pt 1610) 454 and Angadi Vs Peoples Democratic Party (2018) 15 NWLR (Pt 1641) 1.
Counsel to the Appellants contended on two grounds that the lower Court was wrong in bringing the case of the first to the fourth Respondents within the limited jurisdiction given to the Federal High Court by this provision. These are
(i) that the Federal Government of Nigeria or one of its agencies is not a party in the suit; and (ii) that the subject matter of the claims of the first to the fourth Respondents does not come within the limited scope of the jurisdiction. On the first ground of contention, this Court concedes that there were decisions of the Supreme Court which suggested that the provision did not give a concurrent jurisdiction to both the State High Court and the Federal High Court and that there was a dichotomy in the jurisdiction of both Courts. The decisions held that in an action brought pursuant to the provisions of Section 87 (9) of the Electoral Act, 2010 (as amended), where the principal reliefs are declaratory orders directed against the validity of an executive or administrative action or decision of an agency of the Federal Government, then it was the Federal High Court that had jurisdiction and where they were not and were against the political party, it was the State High Court that had jurisdiction Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt 1316) 85, Salim Vs Congress for Progressive Change supra, Kakih Vs Peoples Democratic Party (2014) 15 NWLR (Pt 1430) 374.
The Supreme Court has, however, since made a turn-around from this position and the present state of the law is that the State High Court and the Federal High Court share a concurrent jurisdiction under provisions of Section 87 (9) of the Electoral Act, 2010 (as amended), irrespective of whether the Federal Government of Nigeria or one of its agencies is a party in the suit or not and/or whether the claims are directed at the Federal Government of Nigeria, an agency of the Federal Government or the political party. In other words, the Federal Government of Nigeria or any of its agencies does not have to be a party in a suit brought pursuant to Section 87(9) of the Electoral Act and the claims have not to be directed at the Federal Government of Nigeria or at an agency of the Federal Government before the Federal High Court can exercise the jurisdiction conferred on it Jev Vs Iyortyom (2014) 14 NWLR (Pt 1428) 575, Gwede Vs Independent National Electoral Commission (2014) 18 NWLR (Pt 1438) 56, Lokpobiri Vs Ogola (2016) 3 NWLR (Pt 1499) 328, Osude Vs Azodo (2017) 15 NWLR (Pt 1588) 293, Olugbemi Vs Lawrence (2017) 16 NWLR (Pt 1591) 209, Zakirai Vs Muhammad (2017) LPELR 42349(SC), Lau Vs Peoples Democratic Party (2018) 4 NWLR (Pt 1608) 60, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt 1618) 245. The first ground of contention of the Appellants does not thus represent the present position of the law.
With regards to the second ground of contention, the Courts are unanimous that to come within the limited jurisdiction conferred by Section 87(9) of the Electoral Act, the subject matter of the dispute must relate to the selection or nomination of a candidate for election by a political party and the complaint must be in respect of non-compliance with the provisions of Electoral Act and the Guidelines of a political; the Federal High Court and the State High Court have no jurisdiction to entertain any other subject matter or complaint under the provisions of the section Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386, Wushishi Vs Imam supra, Peoples Democratic Party Vs Ezeonwuka supra, Angadi Vs Peoples Democratic Party supra, Nduul Vs Wayo (2018) 16 NWLR (Pt 1646) 548. Thus, the Courts have stated that the conditions precedent for bringing an action under Section 87 (9) of the Electoral Act are (i) there must first have been a primary for the selection or nomination of a candidate by a political party; (ii) the exercise for the primary must have been in respect of an election; (iii) the complainant must be an aspirant who took part or ought to have taken part in his political partys primaries and it must be shown that the political party did not comply with a provision of Electoral Act and/or its Guidelines for the nomination or selection done Ikedife Vs APGA (2014) LPELR 22921(CA), Ukachukwu Vs Peoples Democratic Party (2014) 17 NWLR (Pt 1435) 134, Maihaja Vs Gaidam supra, All Progressives Congress Vs Karfi (2018) 6 NWLR (Pt 1616) 479 and Ugwuegede Vs Asadu (2018) 10 NWLR (Pt 1628) 460.
Dovetailing from the above, the Courts have held that disputes arising from leadership tussles or election of executive members of a political party do not come within the subject matter quotient of the jurisdiction of the Courts under Section 87(9) of the Electoral Act Abdulkadir Vs Mamman supra, Umeh Vs Okwu (2014) LPELR 24063(CA), Maduemezia Vs Uwaje (2015) LPELR 24542(CA), Ufomba Vs INEC (2017) 13 NWLR (Pt 1582) 175, Olafeso Vs Ogundipe (2018) LPELR 44305(CA), Peoples Democratic Party Vs Ogundipe (2018) LPELR 43887(CA). As stated earlier, the subject matter of the dispute of the first to the fourth Respondents in this case arose from the elections held by the first and second Appellants and conducted by the third and fourth Appellants on the 11th of November, 2017 and 25th of November, 2017 to elect the State Executive Members of the Peoples Democratic Party, the first Appellant, particularly the offices of State Party Chairman, State Party Secretary, State Party Youth Leader and State Party Women Leader. The dispute was not about primaries conducted by the first Appellant for selection or nomination of candidates for an election. It is clearly not one that can be entertained under the provisions of Section 87(9) of the Electoral Act, 2010 (as amended). It is a matter strictly within the domestic affairs of the first Appellant. The lower Court was thus in error when it assumed jurisdiction to entertain the matter. The first issue for determination is resolved in favour of the Appellants.
This resolution of the first issue for determination on jurisdiction should ordinarily conclude deliberations of this Court on this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the second issue raised by the parties, in case it turns on a further challenge that its finding on jurisdiction is wrong Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1. This is in accord with the advice given by the Supreme Court in National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170 that this Court, being the penultimate Court in our judicial system, when confronted with the issue of jurisdiction should decide the issue one way or the other and then proceed to determine the main appeal thereby affording the Supreme Court the benefit of its opinion. This Court will thus proceed with the resolution of the second issue for determination.
Issue Two
Whether in view of the evidence on record, the lower Court was right in law to have granted all the reliefs sought by the Respondents?
In arguing the issue for determination, Counsel to the Appellants reproduced the provisions of Section 25(2) and (4) of the Constitution of the first Appellant and of Paragraph
4.1(b) of the Guidelines of the first Appellant for the conduct of Ward, Local Government and State Congresses elections, and on which the first to the fourth Respondents predicated their claims in the lower Court. Counsel stated that a community reading of the provisions shows that they refer to the meeting of the State Executive Committee and have no correlation to Congress elections of the first Appellant and that it is for meeting of the Executive Committee that the quorum was stated to be two thirds of the members of the Committee. Counsel reproduced the provision of Section 49(1) the Constitution of the first Appellant which he said dealt with elections and stated that the provision was silent on quorum and venue, and they cannot be read into the provision, and that the provision gives the National Working Committee of the first Appellant the discretion to adopt any procedure that will ensure equal participation of all the registered members of the party.
Counsel stated that the first error committed by the lower Court in the judgment was that the first to the fourth Respondents admitted in the affidavit in support of the originating summons that the election that took place on the 11th of November, 2017 was fraught with irregularities, and were thus not credible, and notwithstanding which the lower Court upheld the claim of the first to the fourth Respondents that they won the election and should be sworn in as winners of the said election. Counsel stated that it was settled law that a party cannot allege irregularity in an election and turn around to ask the Court to declare him the winner of the same election and he referred to the case of Onwudinjo Vs Dimobi (2006) 1 NWLR (Pt 318) 335.
Counsel stated that the second error made by the lower Court was that with the agreement between the parties in the papers before it that it was delegates from twenty-five out of the twenty-seven Local Government Areas of the State that participated in the election for the State, the effect of the declaration that the first to the fourth Respondents were the winners of the election was a deliberate disenfranchisement of the seventy-three delegates from the other two Local Government Areas, Shani and Bayo. Counsel stated that it was inappropriate to disenfranchise voters in any election particularly if the vote from the affected area would substantially affect the outcome of the election and that the proper thing to do in such circumstance was to order the conduct of election in the affected areas and he referred to the case ofBiyu Vs Ibrahim (2006) 8 NWLR 50. Counsel stated that from the number of the votes scored by the candidates in the election of the 11th of November, 2017, it was not in doubt that the votes of the seventy-three delegates from the two Local Government Areas would substantially affect the outcome of the election and that as such the election was inconclusive and it is trite law that an inconclusive election cannot produce a winner APC Vs Karfi (2018) 6 NWLR (Pt 1616) 479.
Counsel stated that additionally the reliefs sought by the first to the fourth Respondents on the originating summons were declaratory in nature and that the law is that strict proof is required to succeed on such a claim and he referred to the cases of Aregbesola Vs Oyinlola (2011) 9 NWLR (Pt 1253) 458 and Seamarine International Ltd Vs Ayetoro Bay Agency (2016) NWLR (Pt 1502) 313. Counsel stated that the first to the fourth Respondents failed to establish credible, cogent and convincing evidence to entitle them to judgment and they failed to point to any specific provision of the law which justifies the exclusion of seventy-three delegates from Bayo and Shani Local Government Areas from participating in the Congress election. Counsel stated that the lower Court was thus in error to have entered judgment in their favour.
Further, Counsel referred to the cases ofGrand Systems Petroleum Ltd Vs Access Bank Plc (2015) 3 NWLR (Pt 1446) 317 and Brawal Shipping Ltd Vs F.I. Onwadike Co Ltd (2000) 11 NWLR (Pt 678) 387 in asserting that a Court is duty bound to examine all the facts and issues placed before it by the parties and to resolve the issues while applying the applicable law to the facts before arriving at its decision. Counsel stated that a cursory look at the judgment of the lower Court shows that the lower Court did not give reasons for the grant of the reliefs sought by the first to the fourth Respondents. Counsel stated that the lower Court made no comment on the statutory and judicial issues thrown up in the written addresses of Counsel and that this was a clear error on the part of the lower Court. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.
In his response arguments, Counsel to the Respondents stated that it was incorrect that the provisions of 25 (4) of the Constitution of the first Appellant and Paragraph 4.1(b) of the Guidelines of the First Appellant for the conduct of Ward, Local Government and State Congresses elections referred to the State Executive Committee and the quorum of the meeting of the State Executive Committee. Counsel stated that the provisions relating to the State Executive Committee and its quorum are contained in Section 24 (1) to (5) of the Constitution of the first Appellant while the provisions in Section 25 thereof and in Paragraph 4.1(b) of the Guidelines of the First Appellant for the conduct of Ward, Local Government and State Congresses election deal directly with the State Congress of the party called for elections and Section 25(4) of the Constitution stated that the quorum for the State Congress shall be two thirds of the delegates present and voting. Counsel stated that the decision of the State Congress was to be taken by a simple majority and that the first to the fourth Appellants were in error when they failed to declare the first to the fourth Respondents as winners of the election when they won by a simple majority and the delegates who participated in the election were from twenty five out of the twenty seven Local Government Areas and they constituted more than two thirds of the State Delegates of the first Appellant.
Counsel stated that there was no State Congress convened in Gombe, Gombe State, but just a purported meeting of the delegates from Bayo and Shani Local Government Areas with the Electoral Committee whereat a purported election was conducted and that there was no publication of the event and the first to the fourth Respondents were not put on notice of it. Counsel stated that the first to the fourth Respondents did not complain of irregularities in the election held on the 11th of November, 2017 and that the case of the first to the fourth Respondents was that despite the attempt at disrupting the elections, the elections took place and that they won the election. Counsel stated that the lower Court entered judgment for the first to the fourth Respondents on the basis of the provision of Section 25(4) of the Constitution of the first Appellant and its interpretation of the provision. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
In its deliberations on the claims of the first to the fourth Respondents, the lower Court stated in the judgment thus:
In the instant case, the 1st Defendant scheduled an election for State Congress of Borno State on 11th day of November, 2017. The election the 1st Defendant scheduled for 11th of November, 2017 was to elect officers of its Executive Committee of Borno State. Consequently, election was conducted amongst the contestants for these vacant offices of the 1st Defendant on that day. These are:
1. Chairmanship position
2. State Party Secretary position
3. State Party Youth Leader position; and
4. State Party Women Leader position.
Section 25 (4) of the 1st Defendants Constitution provides as follows-
The quorum of the State Congress shall be two-third (2/3) of the members drawn from the three Senatorial Districts of the State and a simple majority shall pass any motion.
There was no dispute as to accreditation, and voting but there was no declaration as to who won the offices contested on that day. There was also no dispute as to the 1st Plaintiff and 7th Defendant contested for the position of Chairmanship, wherein the Usman Mahdi Badaire (1st Plaintiff) scored 525 votes and Zanna Gaddama (7th Defendant) scored 477 votes. Similarly in the position of State Secretary, Yusuf Mohamed Dikko (2nd Plaintiff) scored 493 votes and Baba Ahmed (8th Defendant) scores 486 votes. Also, in the position of State Party Youth Leader, Baaba Sheriff Modu (3rd Plaintiff) scored 528 votes and Alhaji Baba Usman scored 454 votes and in the position of Women Leader, Kellu Abba (4th Plaintiff) scored 570 votes and Hajiya Gambo Bama scored 419 votes
In the election conducted on the 11th day of November, 2017 all candidates that vied for the positions contested were given free and fair level playing ground notwithstanding the submission of Learned Counsel for the first set of Defendants that result of the election was not declared because the election is inconclusive and the reason could be what is contained in Exhibit ZGM
where the Borno State Chapter of the 1st Defendant observed as follows
i. The Party has witnessed inflow of members across the State based on the contest and number of supporters at the venue.
ii. The two LGAs of Bayo and Shani have a total of 73 delegates and are willing to vote but were denied of the franchise.
iii. The election venue is not conducive for the LGAs to cast their votes; it is preferable held outside Borno.
iv. The 73 delegates from the two LGAs of Bayo and Shani can swing the election result considering the difference between the leading contestants.
The recommendation of the Committee reads: even though elections have been successfully conducted in 25 LGAs out of the 27 LGAs, the inconclusive election result were accepted by all parties.
The lower Court thereafter noted that the Committee made some recommendations to the National Leadership of the first Appellant and that there was nothing presented before it to show that the National Leadership accepted or took any step on the recommendations and that as such the further election that took place on the 25th of November, 2017 for the delegates from Bayo and Shani Local Government Areas was improper and it granted the claims of the first to the fourth Respondents.
Now, certain facts were not in dispute in this matter. It was not in dispute that the State Congress elections of the first Appellant held in Borno State on the 11th of November, 2017 to elect the State Chairman, State Secretary, State Youth Leader and State Women Leader. It was not in dispute that delegates from twenty five, out of the twenty seven Local Government Areas of Borno State, excluding Shani and Bayo Local Government Areas, took part in the State Congress election and that the fourth Appellant announced at the election that 944 delegates were accredited to vote.
It was not in dispute that the outcome of the votes cast by the delegates at the election was that the first Respondent scored 525 votes as against the fifth Appellant who scored 477 votes for the office of State Chairman, the second Respondent scored the 493 votes as against the sixth Appellant who scored 486 votes for the office of State Secretary, the third Respondent scored 528 votes against one Alhaji Baba Usman who scored 454 votes for the office of State Youth Leader and the fourth Respondent scored 570 votes against one Hajiya Gambo Barma who scored 419 votes for the office of State Women Leader. It was not in dispute that the third Appellant refused to release the result of the election at the conclusion of voting on the ground that the delegates from Shani and Bayo Local Government Areas did not participate in the voting.
The case of the first to the fourth Respondents in the lower Court was that by the provisions of Section 25(4) of the Constitution of the first Appellant and Paragraph 4.1(b) of the Guidelines of the first Appellant for the conduct of Ward, Local Government and State Congresses elections, the election was in order, even without the participation of the delegates from Shani and Bayo Local Government Areas, numbering seventy-three, because the required quorum of delegates at the election was two-thirds and that the quorum was surpassed at the election. It was its case that it was thus wrong for the first to the fourth Appellants to have failed to declare the result of the election and to have instead proceeded to conduct fresh elections for the delegates from the two Local Government Areas.
The case of the Appellants was that there was no provision for quorum for State Congress elections either in the Constitution of the first Appellant or in the Guidelines of the first Appellant for the conduct of Ward, Local Government and State Congresses elections and the provisions referred to by the first to the fourth Respondents referred to the meeting of State Executive Committee and that Section 49 of the Constitution of the first Appellant that dealt with State Congress elections made no provision for quorum, but left the manner and procedure for the elections at the discretion of the National Working Committee of the first Appellant and did not provide for disenfranchisement of delegates.
The resolution of the merits of this appeal will thus turn on the interpretation of the provisions of the Constitution of the first Appellant and of the Guidelines of the first Appellant for the conduct of Ward, Local Government and State Congresses elections. The Constitution of the first Appellant is not contained in the records of appeal, but relevant provisions were referred to by Counsel to the parties in their written addresses before the lower Court and in their briefs of arguments in this appeal. Section 25 of the Constitution deals with the composition of the State Congresses of the first Appellant and it sets out the functions of the State Congress to include the election of officers of the State Executive Committee and it provides that the State Congress must meet once every two years and it concludes in its Subsection 4 that the quorum of the State Congress shall be two thirds of the members drawn from the three Senatorial Districts of the State and a simple majority shall pass any motion.
Section 49 of the Constitution of the first Appellant states that the National Convention, the Zonal, State, Local Government Area and Ward Congresses shall convene to elect officers of the party at the various levels of the Party structure and it empowered the National Executive Committee of the first Appellant to make guidelines for the conduct of the elections at the different levels of the Party. It was pursuant to this power that the first Appellant issued the 2016 Guidelines For The Conduct of Ward, Local Government, State Congresses and the National Convention
For The Purpose of Electing Party Executive Committees. Paragraph 4 of the Guidelines made provisions for elections at State Congresses to elect State Executive Committee members. It listed the members of the Party that make up the State Congress and stated in its subparagraph 1(b) that the the quorum of the State Congress shall be two thirds of the members drawn from the three Senatorial Districts of the State and a simple majority shall pass any motion.
It is not correct as stated by Counsel to the Appellants that Section 25 of the Constitution of the first Appellant dealt with the composition and meetings of the State Executive Committee of the Party. The section deals with the composition and meetings of the State Congresses of the Party. Now, while it may be argued that the provision for quorum in Section 25 (4) of the Constitution of the first Appellant refers to meetings and deliberations of the State Congress of the Party, the same cannot be said for the provision for quorum in Paragraph 4(1)(b) of the Guidelines. The sole essence of the Guidelines, as stated in its introduction, is to govern the conduct of elections to all Party offices at all levels. The Guidelines were not issued to guide the meetings and deliberations of the Ward Congress or of the Local Government Congress or of the State Congress and/or of the National Convention of the Party. All the provisions in the Guidelines pertained to the holding of elections at the different levels of the Party. Thus, by including, and/or repeating, the provision for quorum in the Guidelines, the National Executive Committee of the first Appellant could only have intended for it to be applicable to the conduct of election of the State Executive Members of the Party at the State Congress. This is the only logical and reasonable conclusion that can be drawn from the quorum provision in the Guidelines. The assertion of the Appellants that there was no provision for quorum for State Congress elections either in the Constitution or in the Guidelines of the first Appellant is not correct.
The Appellants did not contest the assertion of the first to the fourth Respondents that the nine hundred and forty four delegates from twenty-five Local Government Areas, out of the twenty-seven Local Government Areas of Borno State, that took part and voted at the State Congress election of the 11th of November, 2017 constituted more than two-thirds of the members drawn from the three Senatorial Districts in the State. The election thus met the required quorum of the State Congress to elect the State Executive Members of the Party and was in order and complete. The failure of the first to the fourth Appellants to declare the result of the election on the sole ground that the delegates from two Local Government Areas, Shani and Bayo, and numbering seventy three, did not participate in the election was wrong. It was also wrong for the first to the fourth Appellants to have a proceeded to conduct a further election on the 25th of November, 2017 on the ground that the election of 11th of November, 2017 was inconclusive. The election of the 11th of November, 2017 was valid and conclusive. It was irrelevant that the difference in the number of votes scored by some of the contestants at the election was less than seventy-three and that the votes of the delegates from the two Local Government Areas could sway the result of the election. Once the election conformed to the Guidelines, the outcome ought to have been announced and winners declared Ogbe Vs Kogi State Government (2018) LPELR 44796(CA). In Ibrahim Vs Aliyu (2000) 13 NWLR (Pt 683) 38, Kalgo, JSC, made the point thus:
It is my respectful view that in an election such as in this case where the applicable law provides for a quorum of an electoral college, and the quorum was obtained when the votes were cast, such election cannot be invalidated merely because the absent members of the electoral college did not vote at the election.
The decisions contained in the judgment of the lower Court cannot thus be faulted on the merits. The second issue for determination is resolved in favour of the Respondents.
In view of the resolution of the first issue for determination on the jurisdiction of the lower Court to entertain the claims of the first to the fourth Respondents in favour of the Appellants, the appeal has merit and it is hereby allowed. The judgment of the Federal High Court sitting in Maiduguri, Borno State delivered by Honorable Justice M. T. Salihu in Suit No FHC/MG/CS/76/2017 on the 4th of July, 2018 is set aside. The claims of the first to the fourth Respondents before the lower Court are struck out. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment of my learned brother HABEEB ADEWALE O. ABIRU, JCA just delivered, I agree with the reasoning made and conclusion allowing the appeal. I abide by the orders therein.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the lead judgment just delivered by my learned and erudite brother, HABEEB A. O. ABIRU, JCA with whose reasoning and conclusion I agree in allowing the Appeal. Most particularly on issue of absence of jurisdiction on the part of the trial Court to entertain the Suit being a domestic affairs of the 1 st Appellant Peoples Democratic Party.
It is trite that once a Court lack jurisdiction to entertain a matter, the matter ends there. It is fundamental that any proceeding done without jurisdiction no matter what ill it will cure or to be cured would amount to an act done in futility. See KLM AIRLINES V. KUMZHI (2004) 8 NWLR (PT.875) Pg. 231, UMANAH V. ATTAH (2006) 17 NWLR (PT.1009) Pg. 503, ALHAJI (CHIEF) S.D. AKERE & ORS V. THE GOVERNOR OF OYO STATE & ORS (2012) LPELR – 7806,ISAAC OBIUWEUBI V. CENTRAL BANK OF NIGERIA (2011) LPELR-2185.
It is for the foregoing and more so the fuller reasons Marshaled out in the lead judgment that I also allow the Appeal and abide by the consequential orders made in the lead judgment.
Appearances:
C. K. UdeyiboFor Appellant(s)
S. A. R. AbdulSalaam with him, G. M. GhajiFor Respondent(s)
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