NWAFOR v. ENWEREM & ORS (2020)

NWAFOR v. ENWEREM & ORS

(2020)LCN/14567(CA)

RATIO

PLEADINGS: WHETHER INTERLOCUTORY DECISION IS FINAL OR NOT.

Being injunctive in nature it is made, for the time being. An interlocutory power of Court affects all applications incidental to the principal action, be it the judgment or ruling, and this includes every steps taken for the purposes of assisting either party in the prosecution of his case, before final judgment or of protecting or otherwise dealing with the subject matter of the action before the right of the parties are determined; AKINBOBOLA V. PLISSON FISKO (NIG.) LTD. (1991) 1 NWLR (PT.167) P. 270; IGE V. OLUNLOYO (1984) 1 SC 258, (1984) 1 SCNLR 158; AKAPO V. HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) P. 266; GABARI V. ILORI (2002) 14 NWLR (PT. 786) P. 78; ODUWOLE V. AINA (2001) 17 NWLR (PT. 741) P. 1; AND N.B.C. V. KUMBO FURNITURE CO. (NIG.) LTD. (2004) 17 NWLR (PT. 903) P. 572.
Furthermore, Section 241 (1) (a) of the 1999 Constitution, as amended provides:
“an appeal shall lie from a decision of the Federal High or a High Court to the Court of Appeal as of right in the following cases:
a) Final decisions in any civil or criminal proceedings before the Federal High Court or a Court sitting at first instance.” The decision of the trial Court in granting the injunctive relief is clearly not a final decision of that Court, if it were, it would have fallen under the ambit of Section 241(1) (a) of the Constitution.
A decision is said to be final, when the Court that decided the matter is completely done with it, leaving absolutely nothing more for it to do in the mater by way of adjudication, so much so that the Court is now functus officio; see ALOR & ANOR V NGENE & ORS (2007) supra and T.S.A.IND LTD V KEMA INVESTMENT LTD (2006) 1 NWLR part 964.
It is for this reason that a stay of execution cannot be said to be a final decision, because the Court is not still functus officio after granting an order for stay of execution, after all, it can still reverse itself or set aside an order in appropriate circumstances.
Also, as rightly pointed by learned counsel for the 3rd respondent there is nothing in the record to suggest that the Appellant sought or obtained leave of either the trial Court or this Court to bring this appeal in view especially of the fact that the decision complained of is patently interlocutory in nature.
Be that as it may, I do not see how the grounds of appeal can be said to be of mixed law and fact; a careful scrutiny of Ground 1 reveals it is a ground of law. That being the case the law is settled that where a ground of appeal challenging any decision, interlocutory or final, involves questions of law alone, as in this case, the appeal lies as of right. The fact that ground one is a ground of law makes the appeal competent. See OMONUWA V. OSHODIN (1985) 2 NWLR part 10. P. 924 S.C.On the 3rd respondent’s contention that the appeal is academic, I cannot help but agree with learned counsel to the appellant that the argument is defective, not least because a respondent in an appeal is not at liberty to create issues of his own, without cross appealing or filing a respondent’s notice; see ZAKIRAI V MUHAMMAD (2017) 17 NWLR page 181. Per MOHAMMED MUSTAPHA, J.C.A

RATIO

PLEADINGS: JURISDICTION OF COURT TO ENTERTAIN INTRA- PARTY MATTERS ACCORDING TO SECTION 87 (9) OF THE ELECTORAL ACT, 2010

It is settled that as a general rule, an intra – party matter is entirely within the party’s internal affairs, exclusively and completely outside the province or competence of Courts; see 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 AND UGWU VS ARARUME (2007) 12 NWLR (PT. 1048) 367 AT 499 – 500.
There is an exception though to this general rule, it is contained in Section 87 (9) of the Electoral Act, 2010 (as amended), it provides:
“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 provides 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; see GASSOL VS TUTARE (2013) 14 NWLR (PT. 1374) 225 AND AHMED VS AHMED (2013) 15 NWLR (PT. 1377) 274.
Having said that, it is however, a very limited jurisdiction which has not derogated from the non-justifiability of a party’s wide discretionary powers of choosing one of its members for the elective office; see WUSHISHI VS IMAM (2017) 18 NWLR (PT. 1597) 175, PEOPLES DEMOCRATIC PARTY VS EZEONWUKA (2018) 3 NWLR (PT. 1606) 187 AND MAIHAJA VS GAIDAM (2018) 4 NWLR (PT. 1610) 454.
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 is the Federal High Court that has jurisdiction and where they were not and were against the political party, it is the State High Court that has jurisdiction; see PEOPLES DEMOCRATIC PARTY VS SYLVA (2012) 13 NWLR (PT. 1316) 85 AND KAKIH VS PEOPLES DEMOCRATIC PARTY (2014) 15 NWLR (PT. 1430) 374.
The Supreme Court’s current position on this issue 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; see GWEDE VS INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) 18 NWLR (PT 1438) 56, LOKPOBIRI VS OGOLA (2016) 3 NWLR (PT 1499) 328 AND OSUDE VS AZODO (2017) 15 NWLR (PT 1588) 293.
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 party, 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; SEE AGI VS PEOPLES DEMOCRATIC PARTY (2017) 17 NWLR (PT 1595) 386 AND WUSHISHI VS IMAM supra.
As stated earlier, the subject matter of the dispute of the parties in this case arose from the elections held by the 2nd respondent between the 20th and 23rd of July, 2018 to elect the State Executive Members of the 2nd respondent; clearly disputes arising from leadership tussles or election of executive members of a political party do not come within the subject matter jurisdiction of the Courts under Section 87(9) of the Electoral Act; see UMEH VS OKWU (2014) LPELR 24063(CA) AND MADUEMEZIA VS UWAJE (2015) LPELR 24543(CA).
For this reason, it is a matter strictly within the domestic affairs of the 2nd Respondent. The trial Court was thus in error to have assumed jurisdiction to entertain the matter in the first place.
Having said that, it is settled beyond doubt that any judgment delivered without jurisdiction is null and void; see OLUFEAGBA V ABDUL RAHEEM (2009) 18 NWLR part 1173 page 384; and there is no necessity for setting aside an act that is void ab initio, to do so amounts to acting in vain. Faced with these reasons this Court cannot help but understand the need for the grant of the injunction pending appeal by the trial Court in the circumstances. The point to be made here is that Section 285(9) of the Constitution does not cover all issues arising from any pre-election matter, especially when it is void, because when an action is void, it is void all the way. The question of applying to set aside the judgment, as contended for the appellant clearly falls short as a solution to this problem.
There is no better example of special circumstances than the situation the trial Court found itself; see OLUNLOYO V ADENIRAN (2001) 14 NWLR part 734 page 699 and AJOMALE V YADUAT & ANR 2 (1991) 5 NWLR part 266.Learned counsel to the appellant’s contention that the injunction was granted on the basis of a notice of appeal filed several months ago and left unattended or after delivery of the judgment or functus officio misses the point, because it is settled also that time does not run against a judgment which is clearly shown to be void ab initio; see UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY SC 1384/2019 unreported. Besides, every Court is empowered to entertain post judgment applications, particularly applications for stay of execution of its own judgment; see OYEYEMI V IREWOLE LOCAL GOVT (1993) 1 NWLR part 270 464 and OGUNREMI V DADA (1962) 2 SCNLR 417.
It is therefore uncharitable to say the least to accuse the trial Court of sitting on Appeal over its judgment, for rightly granting an order of injunction meant to protect its judgment; it is just as uncharitable to also suggest that the trial Court usurped the powers of the Court of Appeal by ordering the ‘1st respondent to compile record of appeal outside the statutory period’; when the order was meant to prod the 2nd respondent to enter his appeal, by making the injunction conditional upon entering his appeal. That cannot by any stretch of imagination be equated to extension of time for the purpose of compilation of the record.
The impression that the prayers of the 2nd respondent before the trial Court was for extension of time within which to file appeal is clearly wrong, not least because even the reliefs sought by the 2nd respondent do not lend credence to this contention; and even without the 2nd relief sought, the grant of the injunction pending appeal automatically translates to restraint which relief two sought to impose on the appellant.
The exercise of discretion by the lower Court is judicious and judicial in the circumstances, there is no justification for questioning it; see ECHAKA CATTLE RANCH LTD V N. A.C.B, LTD (1998) 4 NWLR PART 547 PAGE 526. The Court of Appeal is always reluctant to reverse the judicious and judicial exercise of discretionary power as in this case; see NZERIBE V DAVE ENG. CO. LTD (1994) 8 NWLR part 361 page 124. It is for these reasons that I am compelled to resolve both issues for determination in favour of the respondents, against the appellant. Per MOHAMMED MUSTAPHA, J.C.A

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/A/595/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

MR DANIEL MADUEKE NWAFOR APPELANT(S)

And

EVAN ENWEREM & 2 ORS RESPONDENT(S)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja sitting in Bwari and presided by Hon Justice by O. A. Musa, delivered on the 16th of July, 2020.

The facts of the case briefly stated are that the 1st respondent filed an originating summons before the trial High Court of the Federal Capital Territory seeking the determination of issues concerning the conduct of the congress of the All Progressives Congress, for the election of party executives at ward, Local Government and State levels in Imo State, which took place on the 20th, 21st and 23rd of July, 2018; the originating process is at pages 1-55 of the record of appeal.

The 2nd and 3rd respondents filed counter affidavits in opposition, see pages 60 – 69 of the record of appeal; the Appellant also filed his counter affidavit which can be found at pages 70-81 of the record of appeal.

The trial Court dismissed the claims of the 1st respondent and granted declaratory and injunctive reliefs in favour of the Appellant, against the 2nd and 3rd respondents.

The 2nd respondent’s application is for:
i. AN ORDER for unconditional stay of execution/enforcement of the judgment of this Honourable Court delivered in this matter on August 14, 2018 pending the hearing and determination of the appeal filed by the 1st Defendant/Appellant against the said ruling.
ii. AN ORDER of injunction Chief Registrar, Deputy Chief Registrar and the Deputy Sheriff of this Defendant herein from Honorable Court, the 3rd Defendant herein from parading himself as the Imo State Chairman of the 1st Defendant/Appellant and further restrain his agents, messengers, privies, representatives and or any person(s) acting pursuant to the 3rd defendant as the Imo State Chairman of the 1st Defendant/Appellant thereby given effect to the said judgment of this Honorable Court on suit delivered on August 14, 2018 pending the hearing and determination of the appeal filed by the 1st Defendant/Applicant against the said judgment.

The trial Court granted the following orders:
i. “An order is hereby made restraining the 3rd defendant/counter claimant either by himself, officers, agents, subordinates or any person claiming through him from enforcing or giving

effect to the judgment of this Court delivered on the 14th August, 2018 in FCT/HC/BW/CV/103/2018, pending the hearing and determination of the appeal filed by the 1st defendant/applicant.
ii. The applicant is hereby ordered to compile and transmit the record of appeal in respect of this appeal, otherwise enter the appeal into the Court of appeal.”

Dissatisfied with the decision of the trial Court, the Appellant appealed by a notice of appeal dated the 20th but filed on the 21st of July, 2020 on the following grounds:
GROUND ONE
The Learned judge erred in law which error occasioned a miscarriage of justice when he held follows:
“The crux of the applicant appeal is that at the time Court entertained the instant action, it was more than 14 days from the date of the congress. I have carefully gone through the judgment, I see that the cause of action arose on the 20/7/2018 and 23/7/2018 and the counter claim which is the basis of the judgment was filed on 06/08/2018. A simple calculation of same shows that it is well over 14 days as provided by the 4th alteration of the Constitution particularly Section 285(9) of the Constitution (as amended).”

GROUND TWO
The Learned trial Judge erred in law which error occasioned a miscarriage of justice when Suo motu made and ordered for compilation of record which is the basis for injunction against the Appellant in the following words:
“Finally, I have not seen any evidence that the record has been duly compile and ready for transmission, as such I am inclined to grant a conditional order of injunction and order the applicant to compile and transmit the record, otherwise, enter the appeal into the Court of appeal.”
GROUND THREE
The Learned trial judge erred in law which erred occasioned a miscarriage of justice when he granted an order for injunction against the Appellant in negation of an existing judgment of Court.
GROUND FOUR
The Learned trial Judge erred in laws which erred occasioned a miscarriage of justice when he granted an injunction against enforcement of judgment of Court on basis of an incompetent and an abandoned appeal.
GROUND FIVE
The decision is against the weight of evidence.

From these grounds, the following issues were formulated by Chidozie Ogunji Esq., of counsel for the Appellant in

the brief dated the 27th of July but filed on the 28th of July, 2020:
1. Whether the learned trial judge was right in his decision ordering for an injunction against the Appellant on the basis of a notice of appeal filed on the 23rd day of December, 2019 in respect of a judgment dated 14th day of August, 2018; grounds 1, 3, 4 and 5.
2. Whether the learned trial judge was right in its decision granting an order to enable the 2nd respondent to compile record of appeal outside the statutory period.

Robert Emukpoeruo Esq., of counsel for the 2nd respondent formulated a sole issue for determination in the brief filed on the 1st of September, 2020 as follows:
Whether having regard to the grounds of appeal the lower Court properly exercised its discretion in granting the conditional order of injunction pending the determination of the notice of appeal filed by the 2nd respondent on the 23rd of December, 2019; grounds 1, 2, 3, 4 and 5.

Chikaosolu Ojukwu Esq., of counsel for the third respondent adopted the issues formulated by the Appellant.

No brief was filed on behalf of the 1st respondent, even though he was served with the appellant’s brief.

The issues formulated for the Appellant suffice for the determination of this appeal. They will be taken together.

The 3rd respondent filed a preliminary objection whose objective is to strike out the appeal, as well as issues 1 and 2, in so far as they are distilled from ground 5, for incompetence.
The grounds of the objection are:
i. That the appeal is incompetent as no leave was sought and obtained before bringing the instant appeal which is against an interim order
ii. That the appeal is incompetent as there are no live issues in the appeal by virtue of the decision of the High Court of the Federal Capital territory in Motion No: FCT/HC/M/174/2019, a decision the Appellant failed to appeal against.
iii. That Grounds 5 derived from the notice of appeal together with issue 1 therefore is incompetent, as it is a ground of fact and no leave was sought and obtained.
iv. Ground 1 is incompetent, same being argumentative, replete with conclusion and unintelligible, the particulars do not arise from the judgment and it is an issue of mixed fact and law.
v. Ground 2, 3 and 4 are incompetent as the particulars are

narrative, argumentative, conclusive and contained extraneous issues which do not flow from the ruling of the lower Court and therefore offend Order 7 Rule 2 and 3 of the Court of Appeal Rule, 2016; they are equally predicated on an issue of fact and/or at best mixed law and facts.

The following issue was formulated for the determination of the preliminary objection:
Whether or not, having regard to all the relevant circumstances surrounding the instant appeal, the entire appeal, grounds 1, 2, 3, 4, and 5 and issues 1 and 2 in the appellant’s brief of argument distilled there from are altogether incompetent.

It is submitted for the 3rd respondent that the appellant’s appeal predicated on the notice of appeal dated 20/07/2020 is incompetent, and therefore ought to be struck out for being frivolous; because it is an appeal against an interim/interlocutory order of the lower Court, for which no leave was obtained.

That the decision of the trial Court now appealed is of an interlocutory nature, being an injunctive order made pending the hearing and determination of the appeal; learned counsel referred the Court to

PA A.K.Y BALOGUN & ORS V ALHAJA SHIFAWU ODE & ORS (2007) LPELR-717-SC and MADAM ABUSATU AGBOGUNLERI V MR JOHN DEPO & ORS (2008) LPELR- 243-SC.

That a ruling on a stay of execution is an interim order and not a final decision; learned counsel referred the Court to NASCO MANAGEMENT SERVICES LTD V A.N. AMAKU TRANSPORT LTD (2002) LPELR-7139 and Section 14 of the Court of Appeal Act.

That in view of the fact that the appellant has failed to seek and obtain leave as required by Section 14 of the Court of Appeal Act, the appeal is liable to be struck out.

It is further submitted that the grounds of appeal are not predicated on matters of law, the issues on examination are of fact or mixed fact and law, as such leave of this Court ought to be obtained; COOPERATIVE & COMMERCE BANK PLC & ANOR V JONAH DAN OKORO EKPERI (2007) LPELR-876-SC and UGWU V STATE (2013) LPELR-20177-SC.

That also issues derived from incompetent grounds of appeal are themselves incompetent, as such issues 1 and 2, distilled from the incompetent grounds 1, 2, 3, 4 and 5 must fail; BARBUS & CO NIG LTD 7 ANR V OKAFOR-UDEJI (2018) LPELR-44501-SC.

Learned counsel urged this Court to uphold

the preliminary objection.

The Appellant filed two reply briefs, one in response to the 2nd respondent, filed on the 10th of September, 2020, and the other in response to the 3rd respondent filed on the 9th of September, 2020; it contains the reply to the preliminary objection.

It is submitted in response to the preliminary objection that the decision appealed against is a final decision because there is nothing else for the High Court to pronounce in the matter; NGIGE V DISU (2017) 16 NWLR part 1590 page 1 and UGO V UGO (2017) 18 NWLR part 1597.

That since the appellate procedure cannot be taken in the High Court the High Court has become functus officio; learned counsel urged the Court to dismiss the objection.

That also the appellant’s grounds are not in any way one of facts or mixed law and facts, as they are purely grounds of law; OGBECHIE V ONOCHIE (1986) 2 NWLR part 23 page 484, NWADIKE V IBEKWE (1987) 4 NWLR part 67 page 718 and BOARD OF CUSTOM AND EXCISE V BARAU (1982) 10 S.C. page 48.

That ground one does not offended any rule, as it is neither argumentative nor unintelligible as contended; IFARAMOYE V STATE (2017) 8 NWLR

part 1568 page 457.

Learned counsel further submits that grounds 2, 3 and 4 do not offend Order 7 Rules 2 and 3 of the Court of Appeal Rules; AWUSA V NIGERIAN ARMY (2018) 12 NWLR part 1634 page 421.

RESOLUTION:
It is very important from the onset to have recourse to the orders of the trial Court, at page 231 of the record of appeal, for an effective determination of whether the decision in question is interlocutory or not. It is as follows:
1. “An order is hereby made restraining the 3rd defendant/counter claimant either by himself, officers, agents, subordinates or any person claiming through him from enforcing or giving effect to the judgment of this Court delivered on 14th August, 2018 in FCT/HC/BW/CV/103/2018, pending the hearing and determination of the appeal filed by the 1st defendant/applicant.”
2. The applicant is hereby ordered to comply and transmit the record of appeal in respect of this appeal, otherwise enter the appeal into the Court of appeal.”
The operative words are “pending the hearing and determination of the appeal”; and they clearly imply that the order appealed is of a temporary nature i.e. interlocutory.

The decision of the trial Court in granting the injunctive relief is clearly not a final decision of that Court, if it were, it would have fallen under the ambit of Section 241(1) (a) of the Constitution.
A decision is said to be final, when the Court that decided the matter is completely done with it, leaving absolutely nothing more for it to do in the mater by way of adjudication, so much so that the Court is now functus officio; see ALOR & ANOR V NGENE & ORS (2007) supra and T.S.A.IND LTD V KEMA INVESTMENT LTD (2006) 1 NWLR part 964.
It is for this reason that a stay of execution cannot be said to be a final decision, because the Court is not still functus officio after granting an order for stay of execution, after all, it can still reverse itself or set aside an order in appropriate circumstances.
Also, as rightly pointed by learned counsel for the 3rd respondent there is nothing in the record to suggest that the Appellant sought or obtained leave of either the trial Court or this Court to bring this appeal in view especially of the fact that the decision complained of is patently interlocutory in nature.
Be that as it may, I do not see how the

grounds of appeal can be said to be of mixed law and fact; a careful scrutiny of Ground 1 reveals it is a ground of law. That being the case the law is settled that where a ground of appeal challenging any decision, interlocutory or final, involves questions of law alone, as in this case, the appeal lies as of right. The fact that ground one is a ground of law makes the appeal competent. See OMONUWA V. OSHODIN (1985) 2 NWLR part 10. P. 924 S.C.

On the 3rd respondent’s contention that the appeal is academic, I cannot help but agree with learned counsel to the appellant that the argument is defective, not least because a respondent in an appeal is not at liberty to create issues of his own, without cross appealing or filing a respondent’s notice; see ZAKIRAI V MUHAMMAD (2017) 17 NWLR page 181.

The preliminary objection fails as a result, and it is accordingly dismissed.
I would proceed to determine the substantive appeal.

ISSUES ONE AND TWO TOGETHER:
It is submitted for the appellant that no material was placed before the Court by the applicant to enable the Court award such a wide order which in effect negated the standing judgment of

the trial Court; especially as an appeal from a decision in a pre- election matter shall be filed within 14 days from the date of delivery of the judgment appealed against, and also that even by appellate procedure the time for filing of any appeal in respect of the judgment delivered on the 14th of August 2018 has elapsed; AKWA IBOM STATE UNIVERSITY V IKPE (2016) 5 NWLR part 1504 page 146, UNOKA V AGILI (2007) 11 NWLR part 1044 page 122 and MOHAMMED V OLAWUNMI (1990) 2 NWLR part 133 page 458.

That the basis upon which the order is made is wrong, because the applicant did not place any material to justify the order sought; the only issue presented is that there is an appeal by them and therefore the Court should grant a stay and injunction; OGBUGO & ORS V AZUBUIKE (2018) LPELR- 45231-CA pages 12-13.

On the second issue, it is further submitted for the Appellant that the applicant did not ask for the order to compile record, as such it was wrong for a Court to grant an order not sought; AWODI V AGBAJE (2015) 3 NWLR part 1447 page 578.

That also the order for compilation was in effect granting extensions of time to the 1st respondent, a power

the trial Court lacked and so the trial Court was in error to have granted such an order; LAFFERI NIG. LTD V NAL MERCHANT BANK PLC (2015) 14 NWLR part 1478 page 64.

It is submitted for the 2nd respondent in response that from the reliefs sought the subject matter was a dispute between the parties in the ward, State and Local Government congress of the 2nd respondent held in Imo State to elect executive officers, clearly a domestic affair of the parties.

That the trial Court was faced with jurisdictional grounds of appeal and had to grant the injunction pending the appeal in the circumstances; and that it was not sitting on appeal over its judgment as contended for the appellant.

Learned counsel urged the Court not to disturb the finding of the trial Court which was done in the exercise of its discretion.

It is submitted for the 3rd respondent in response in the brief settled by Chikaosolu Ojukwu Esq., of counsel and filed on the 31st of August, 2020 that the 2nd respondent did not pray for extension of time before the trial Court, what he sought was stay of execution; and the compelling reason for the grant of stay to was avoid the

proceedings being rendered nugatory in the event of success.

That also the trial Court was not functus officio to have granted a post judgment application for stay of execution, and that both trial and appellate Courts have the discretionary power to stay execution.

It is submitted for the Appellant in reply to the 2nd respondent that if the judgment were indeed void as contended an application should have been brought to set it aside; SHERIFF V PDP (2017) 14 NWLR part 1585 page 212 and EDILCON NIG LTD V U.B.A PLC (2017) 18 NWLR part 1596.

That also the Appellant does not need to appeal an orbiter, what he needs to appeal is the ratio of a decision; A.T.S & SONS V B.E.C. NIG. LTD (2018) 17 NWLR 1647 page 1.

That also there was no live appeal and there was no basis for the consideration that gave rise to the decision as the trial Court simply acted outside its powers.

In reply to the 3rd respondent, it is submitted that the appellate procedure upon which the Court based its decision can never be taken at the trial Court as the trial Court had become functus officio; NGIGE V DISU (2017) 16 NWLR part 1590 page 1 and UGO V UGO (2017)

18 NWLR part 1597 page 218.

That the judgment being a declaratory is incapable of being stayed ABOSELDEHYDE LAB PLC V U.M.B. LTD (2013) 13 NWLR part 1370 page 91 and PDP V INEC (2018) 12 NWLR part 1634 page 533.

RESOLUTION:
The grounds of the application which gave rise to this appeal is a challenge to the judgment of the trial Court delivered on the 14th of August, 2018 as a nullity for lack of jurisdiction; see page 170-186 of the record of appeal.

It is not disputed that the subject matter of the claim and counter claim was the State, Ward and Local Government congress of the 2nd respondent to elect executive officers of the 2nd respondent, which by any stretch of imagination is a domestic affair of the parties.
It is not in dispute that the contest and the complaints revolved around an intra-party matter; an intra-party dispute for the avoidance of doubt, is a dispute between members of a political party or between a member or members on the one hand, against the political party, on the other hand; see PEOPLES DEMOCRATIC PARTY VS KWARA STATE INDEPENDENT ELECTORAL COMMISSION (2006) 3 NWLR (PT 968) 565, LABOUR PARTY VS OYATORO (2016)

LPELR 40135(CA) AND DAHIRU VS ALL PROGRESSIVES CONGRESS (2017) 4 NWLR (PT 1555) 218.
It is settled that as a general rule, an intra – party matter is entirely within the party’s internal affairs, exclusively and completely outside the province or competence of Courts; see 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 AND UGWU VS ARARUME (2007) 12 NWLR (PT. 1048) 367 AT 499 – 500.
There is an exception though to this general rule, it is contained in Section 87 (9) of the Electoral Act, 2010 (as amended), it provides:
“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 provides 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; see GASSOL VS TUTARE (2013) 14 NWLR (PT. 1374) 225 AND AHMED VS AHMED (2013) 15 NWLR (PT. 1377) 274.
Having said that, it is however, a very limited jurisdiction which has not derogated from the non-justifiability of a party’s wide discretionary powers of choosing one of its members for the elective office; see WUSHISHI VS IMAM (2017) 18 NWLR (PT. 1597) 175, PEOPLES DEMOCRATIC PARTY VS EZEONWUKA (2018) 3 NWLR (PT. 1606) 187 AND MAIHAJA VS GAIDAM (2018) 4 NWLR (PT. 1610) 454.
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 is the Federal High Court that has jurisdiction and where they were not and were against the political party, it is the State High Court that has jurisdiction; see PEOPLES DEMOCRATIC PARTY VS SYLVA (2012) 13 NWLR (PT. 1316) 85 AND KAKIH VS PEOPLES DEMOCRATIC PARTY (2014) 15 NWLR (PT. 1430) 374.
The Supreme Court’s current position on this issue 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; see GWEDE VS INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) 18 NWLR (PT 1438) 56, LOKPOBIRI VS OGOLA (2016) 3 NWLR (PT 1499) 328 AND OSUDE VS AZODO (2017) 15 NWLR (PT 1588) 293.
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 party, 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; SEE AGI VS PEOPLES DEMOCRATIC PARTY (2017) 17 NWLR (PT 1595) 386 AND WUSHISHI VS IMAM supra.
As stated earlier, the subject matter of the dispute of the parties in this case arose from the elections held by the 2nd respondent between the 20th and 23rd of July, 2018 to elect the State Executive Members of the 2nd respondent; clearly disputes arising from leadership tussles or election of executive members of a political party do not come within the subject matter jurisdiction of the Courts under Section 87(9) of the Electoral Act; see UMEH VS OKWU (2014) LPELR 24063(CA) AND MADUEMEZIA VS UWAJE (2015) LPELR 24543(CA).
For this reason, it is a matter strictly within the domestic affairs of the 2nd Respondent. The trial Court was thus in error to have assumed jurisdiction to entertain the matter in the first place.
Having said that, it is settled beyond doubt that any judgment delivered without

jurisdiction is null and void; see OLUFEAGBA V ABDUL RAHEEM (2009) 18 NWLR part 1173 page 384; and there is no necessity for setting aside an act that is void ab initio, to do so amounts to acting in vain. Faced with these reasons this Court cannot help but understand the need for the grant of the injunction pending appeal by the trial Court in the circumstances. The point to be made here is that Section 285(9) of the Constitution does not cover all issues arising from any pre-election matter, especially when it is void, because when an action is void, it is void all the way. The question of applying to set aside the judgment, as contended for the appellant clearly falls short as a solution to this problem.
There is no better example of special circumstances than the situation the trial Court found itself; see OLUNLOYO V ADENIRAN (2001) 14 NWLR part 734 page 699 and AJOMALE V YADUAT & ANR 2 (1991) 5 NWLR part 266.Learned counsel to the appellant’s contention that the injunction was granted on the basis of a notice of appeal filed several months ago and left unattended or after delivery of the judgment or functus officio misses the point, because it is

settled also that time does not run against a judgment which is clearly shown to be void ab initio; see UGWUMBA UCHE NWOSU V ACTION PEOPLES PARTY SC 1384/2019 unreported. Besides, every Court is empowered to entertain post judgment applications, particularly applications for stay of execution of its own judgment; see OYEYEMI V IREWOLE LOCAL GOVT (1993) 1 NWLR part 270 464 and OGUNREMI V DADA (1962) 2 SCNLR 417.
It is therefore uncharitable to say the least to accuse the trial Court of sitting on Appeal over its judgment, for rightly granting an order of injunction meant to protect its judgment; it is just as uncharitable to also suggest that the trial Court usurped the powers of the Court of Appeal by ordering the ‘1st respondent to compile record of appeal outside the statutory period’; when the order was meant to prod the 2nd respondent to enter his appeal, by making the injunction conditional upon entering his appeal. That cannot by any stretch of imagination be equated to extension of time for the purpose of compilation of the record.
The impression that the prayers of the 2nd respondent before the trial Court was for extension of time within

which to file appeal is clearly wrong, not least because even the reliefs sought by the 2nd respondent do not lend credence to this contention; and even without the 2nd relief sought, the grant of the injunction pending appeal automatically translates to restraint which relief two sought to impose on the appellant.
The exercise of discretion by the lower Court is judicious and judicial in the circumstances, there is no justification for questioning it; see ECHAKA CATTLE RANCH LTD V N. A.C.B, LTD (1998) 4 NWLR PART 547 PAGE 526. The Court of Appeal is always reluctant to reverse the judicious and judicial exercise of discretionary power as in this case; see NZERIBE V DAVE ENG. CO. LTD (1994) 8 NWLR part 361 page 124.

It is for these reasons that I am compelled to resolve both issues for determination in favour of the respondents, against the appellant.

Having resolved both issues for determination in favour of the Respondent against the Appellants, the appeal fails for lack of merit, and it is accordingly dismissed; judgment of the Trial High Court of the Federal Capital territory, delivered by Hon. Justice O. A. Musa in

FCT/HC/BV/CV/103/2018 is hereby affirmed.
Parties to bear their irrespective Cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed a copy of the draft of the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.

I am in agreement with his reasoning and conclusion that this appeal is lacking in merit. I too do dismiss this appeal and I abide by the consequential order made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege to preview the draft of the lead judgment delivered by my learned brother, Muhammed Mustapha, JCA.

I agree with the reasoning and conclusion reached therein and therefore abide with the orders made.
I make no order as to costs.

Appearances:

CHIDOZIE OGUNJI, ESQ., with him, C. OKAFOR, ESQ. For Appellant(s)

ROBERT EMUKPOERUO, ESQ., with him, S. A EARNEST EGBUNA for the 2nd Respondent.

CHIKAOSOLU OFUKWU, ESQ., with him, TEMITOPE LASAKI, ESQ. for the 3rd Respondent. For Respondent(s)