OSHIOMHOLE v. ASEKOMHE & ORS
(2020)LCN/15286(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, June 18, 2020
CA/B/128A/2020
Before Our Lordships:
Helen Moronkeji Ogunwumiju Justice of the Court of Appeal
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Between
COMRADE ADAMS ALIYU OSHIOMHOLE APPELANT(S)
And
1. KENNETH O. ASEKOMHE 2. HON. MATTHEW AIGBUHUENZE IDUORIYEKEMWEN 3. ALL PROGRESSIVE CONGRESS (APC) 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 5. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT A GROUND OF APPEAL MUST BE LINKED TO THE RATIO DECIDENDI AND NOT THE OBITER DICTUM OF A JUDGEMENT
It is trite that a ground of appeal which is the nucleus of every appeal must attack and disclose the nexus with a decision that is the subject of an appeal. A ground of appeal must be linked to and question a ratio decidendi and not the obiter dictum of a judgment. Therefore, any ground of appeal that is alien to the ratio decidendi of a decision runs foul of the law and risks being struck out for being incompetent. See FBN PLC VS TSA INDUSTRIES LTD (2010) 15 NWLR (PT.1216) 247; GARUBA VS OMOKHODION (2011) 15 NWLR (PT. 1269) 145; ISAAC VS IMASUEN (2016) 7 NWLR (PT1511) 250, EGBE VS ALHAJI & ORS (1990) 1 NSCC (VOL2) (PT.1) 306, MARK VS EKE (2004) 5 NWLR (PT865) 54, OBASANJO VS YUSUF (2004) 9 NWLR (PT877) 144. PER OSEJI, J.C.A.
WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE FORMULATED FROM THE GROUND OF APPEAL
Likewise, it is trite law that issues for determination must be formulated or derived from the ground of appeal otherwise such issues alien to the ground or grounds of appeal will be of no moment and should be struck out together with the argument thereon. See MISS NKIRU AMOBI VS. MRS GRACE O. NZEGWU (2013) LPELR- 21863 (SC), THE FEDERAL REPUBLIC OF NIGERIA VS. MOHAMMED (2012) WRN/SC. 128, YISI NIG VS. TRADE BANK PLC (2013) 8 NWLR (PT. 1357) 522, AFOLABI FAJEBE & ANOR VS. ISAAC ADEBAYO OPANUGA (2019) LPELR- 46348 (SC), PATRICK D. MAGIT VS. UNIVERSITY OF AGRICULTURE MARKUDI (2005) 19 NWLR (PT. 959) 211. PER OSEJI, J.C.A.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court sitting in Benin, Edo State, Coram Umar J. and delivered on the 8th day of June, 2020.
The 1st and 2nd Respondents herein were the Plaintiffs at the Lower Court. By an Originating Summons dated 1/06/2020 wherein the Appellant and the 3rd to 5th Respondents were the defendants, the 1st and 2nd Respondents raised six questions for determination by the lower Court as follows:
“1. Whether the 1st Defendant’s National Working Committee’s purported decision of 21st day of May 2020 that direct primary should be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant in Edo State is null and void or at the least inchoate and unenforceable not having been proposed to or approved by the 1st Defendant’s National Executive Committee as mandatorily required by Articles 13.4(v) and 20(v) of the 1st Defendant’s Constitution thereby violating Section 87(1) and (2) of the Electoral Act 2010 as amended.
2. Whether having regard to the provision of Section 87(1) and (2) of the Electoral Act 2010 as amended, Article 13.3(ii), 13.3(ii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive Committee dated 30th day of August 2018, the National Working Committee of the 1st Defendant is bereft of any vires to dictate or determine the mode of primary election to be adopted for the selection/nomination of the 1st Defendant’s gubernatorial candidate for Edo State at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September 2020 or any other date it may determine, the power to determine the mode of primary election having been expressly granted by the 1st defendant’s National Executive Committee to the State Chapters of the 1st Defendant.
3. Whether the purported decision made on 21st of May 2020 by the National Working Committee of the 1st defendant presided over by the 2nd defendant, which dictated or ordered that direct primary election shall be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election scheduled to hold on the 19th day of September 2020 is not null and void being contrary to the resolution of the 1st Defendant’s National Executive which resolved on 30th day of August 2018 that each state chapter of the 1st Defendant shall determine the mode of primary election to be adopted for the selection/nomination of the 1st defendant’s candidate at an election to be conducted by the 3rd Defendant [INEC].
4. Whether having regard to the provisions of Section 87(1) and (2) of the Electoral Act 2010 as amended, Articles 13.3(ii), 13.3(iii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive Committee dated 30th day of August 2018, the primary election for the selection/nomination of the 1st Defendant’s candidate for the Edo State gubernatorial election to be conducted by the 3rd defendant on the 19th day of September 2020 or any other date it may determine, fails to be conducted in accordance with the resolution passed by the Edo State Chapter of the 1st Defendant which adopted the indirect Primary election method for the selection/nomination of the 1st Defendant’s candidate at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September 2020 or any other date it may determine.
5. Whether having regard to the provisions of Sections 85(2), 87(1)(2) and (3) of the Electoral Act 2010 as amended, the 3rd Defendant can only legally and competently attend, observe and issue a report only in respect of the indirect primary election for the selection/nomination of the Edo State gubernatorial candidate of the 1st defendant for the gubernatorial election which is in conformance with the resolution of the 1st Defendant’s National Executive Committee dated 30th day of August 2018 and the resolution of the Edo State Chapter of the 1st Defendant adopting indirect primary election.
6. Whether the purported order of the National Working Committee of the 1st Defendant [acting under the auspices of the 2nd Defendant] directing the adoption of direct primary election for the selection/nomination of the 1st Defendant’s gubernatorial candidate in Edo State at the gubernatorial to be conducted by the 3rd Defendant on the 19th of September 2020 or any other date it may determine is in any event incompatible with or in contravention of both the provisions of the Edo State Dangerous Infectious Disease (Emergency Prevention) Regulations, 2020 which imposed restrictive measures to stem the rampaging Corona Virus (Covid-19) in Edo State and the provisions of Section 87(3) of the Electoral Act 2010 as amended, which mandatorily prescribes as a precondition for the adoption of the direct primary mode that the party “shall endure that all aspirants are given equal opportunity of being voted for by members of the party and is accordingly unenforceable, illegal null and Void.
They also sought the following declaratory and injunctive reliefs, to wit:
“i. A DECLARATION that the 1st Defendant’s National Working Committee’s purported decision of 21st day of May 2020 that direct primary election should be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant in Edo State is null and void or at least inchoate and unenforceable not having been proposed to or approved by the 1st Defendant National Executive Committee as mandatorily required by Articles 13.4(v) and 20(v) of the 1st Defendant’s Constitution thereby violating the Section 87(1) and (2) of the Electoral Act 2010 as amended.
ii. A DECLARATION that having regard to the provisions of Section 87(1) and (2) of the Electoral Act 2010 as amended, Articles 13.3(ii), 13.3(iii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive Committee dated 30th day of August, 2018, the National Working Committee of the 1st Defendant of the 1st Defendant is bereft of any vires to dictate or determine the mode of primary election to be adopted for the selection/nomination of the 1st defendant’s gubernatorial candidate for Edo State at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September 2020 or any other date it may determine, the power to determine the mode of primary election having expressly granted by the 1st defendant’s National Executive Committee to the State Chapters of the 1st Defendant.
iii. A DECLARATION that the purported decision made on 21st of May 2020 by the National Working Committee of the 1st defendant presided over by the 2nd defendant, which dictated or ordered that direct primary election shall be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election scheduled to hold on the 19th day of September 2020 is null and void being contrary to the resolution of the 1st Defendant’s National Executive Committee which resolved on 30th of August 2018 that each State chapter of the 1st Defendant shall determine the mode of primary election to be adopted for the selection/nomination of the 1st defendant’s candidate at an election to be conducted by the 3rd Defendant [INEC].
iv. A DECLARATION that having regard to the provisions of Section 87(1) and (2) of the Electoral Act 2010 as amended, Articles 13.3(ii), 13.3(iii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive Committee dated 30th day of August 2018, the primary election for the selection/nomination of the 1st defendant’s candidate for the Edo State gubernatorial election to be conducted by the 3rd defendant on the 19th day of September 2020 or any other date it may determine, fails to be conducted in accordance with the resolution passed by the Edo State Chapter of the 1st Defendant which adopted the indirect primary election method for the selection/nomination of the 1st Defendant’s candidate at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September 2020 or any other date it may determine.
v. A DECLARATION that having regard to the provisions of Sections 85(2), 87(1)(2) and (3) of the Electoral Act 2010 as amended, the 3rd Defendant can only legally and competently attend, observe and issue a report only in respect of the indirect primary election for the selection/nomination of the Edo State gubernatorial candidate of the 1st defendant for the gubernatorial election which is in conformance with the resolution of the 1st Defendant’s National Executive Committee dated 30th day of August 2018 and the resolution of the Edo State Chapter of the 1st Defendant adopting indirect primary election.
vi. A DECLARATION that the purported order of the National Working Committee of the 1st Defendant acting under the auspices of the 2nd defendant directing the adoption of direct primary election for the selection/nomination of the 1st Defendant’s gubernatorial candidate in Edo State at the gubernatorial to be conducted by the 3rd Defendant on the 19th of September 2020 or any other date it may determine is in any event incompatible with or in contravention of both the provisions of the Edo State Dangerous Infectious Disease (Emergency Prevention) Regulations, 2020 which imposed restrictive measures to stem the rampaging Corona Virus [Covid-19] in Edo State and the provisions of Section 87(3) of the Electoral Act 2010 as amended, which mandatorily prescribes as a precondition for the adoption of the direct primary mode that the party “shall endure that all aspirants are given equal opportunity of being voted for by members of the party” and is as accordingly unenforceable, illegal, null and void.
vii. AN ORDER NULLIFYING OR SETTING ASIDE the purported decision made on 21st May 2020 by the National Working Committee of the 1st defendant presided over by the 2nd defendant, which directed the adoption of direct primary election as the mode for the selection/nomination of the 1st Defendant’s gubernatorial candidate for the Edo State governorship election scheduled to hold by the 3rd Defendant on the 19th of September 2020 or any other date determined by the 3rd Defendant.
viii. AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the 1st and 2nd Defendant from carrying out the purported decision made on 21 May 2020 by the National Working Committee of the 1st defendant presided over by the 2nd defendant, which dictated or ordered that direct primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election.
ix. AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the 3rd Defendant, its servants, agents, officers or privies or otherwise howsoever from attending, observing or issuing any report in respect of any purported direct primary election conducted pursuant to the purported decision made on 21st May 2020 by the 1st Defendant’s National Working Committee which illegally foisted direct primary election as the mode for the conduct of primary election for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election.
ix. AN ORDER OF MANDATORY INJUNCTION directing the 3rd Defendant, its servants, agents, officers or privies or otherwise howsoever to attend, observe and issue a report in respect of only the indirect primary election of the 1st Defendant to select/nominate its gubernatorial candidate at the gubernatorial election to be conducted on the 19th of September 2020 or any other date it may determine, which is the primary conducted in accordance with the resolution of the 1st Defendant’s National Executive Committee of 30th August 2018 and the resolution of the Edo State Chapter of the 1st Defendant dated 22nd May 2020
x. AN ORDER OF MANDATORY INJUNCTION DIRECTING the 4th Defendant, his men, officers, agents, or otherwise howsoever to stop or prevent the 1st-3rd Defendants from carrying out or giving effect to the purported decision made on 21 May 2020 by the National Working Committee of the 1st defendant presided over by the 2nd defendant, which dictated or ordered that direct 2nd primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election by the deployment of such force as they deem reasonably necessary.”
The 1st and 2nd Respondents also filed contemporaneously with the Originating summons an Exparte Application wherein they sought the following orders.
“1. AN ORDER OF ACCELERATED HEARING AND DETERMINATION of the Originating Summons herein by abridging the time for the defendants to enter appearance and file their respective counter affidavits and for the Plaintiffs to file their Replies thereto.
2. AN ORDER OF INTERIM INJUNCTION RESTRAINING the 1st and servants, agents, officers or otherwise 2nd Defendants their privies, howsoever from carrying out or taking any steps or further steps to implement or give effect to the purported decision made on 21st May 2020 by the National Working Committee of the 1st Defendant presided over by the 2nd Defendant, which dictated or ordered that direct primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election pending the hearing and determination of the motion on notice herein.
3. AN ORDER OF INTERIM INJUNCTION RESTRAINING the 3rd Defendant, its servants, agents, officers or privies or otherwise howsoever from attending, observing or issuing any report in respect of any purported direct primary election to be conducted pursuant to the purported decision made on 21st May 2020 by the 1st Defendant’s National Working Committee for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election pending the hearing and determination of the motion on notice herein.
4. AN INTERIM ORDER OF INJUNCTION, pending the hearing and determination of the motion on notice, directing the 4th Defendant, his men, officers, agents, or otherwise howsoever to stop or prevent the 1st- 3rd Defendants from carrying out or giving effect to the purported decision made on 21st May 2020 by the National Working Committee of the 1st Defendant presided over by the 2nd Defendant, which dictated or ordered that direct primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election by the deployment of such force as they deem reasonably necessary.”
In addition to the Exparte application, the 1st and 2nd Respondents also filed a motion on notice seeking the same orders as in the motion Exparte.
Upon the said motion exparte coming up for hearing before the lower Court on 2/06/2020, the learned trial Judge ordered the Appellant and the 3rd to 5th Respondents to show cause why the orders sought should not be granted and thereafter adjourned the suit to 8/6/2020 for hearing.
Pursuant to the order of the lower Court, the Appellant filed an affidavit to show cause on 5/06/2020 along with a Notice of Preliminary objection.
On the 8/06/2020 when the suit came up for hearing, counsel for the parties informed the Court of the various applications filed before the Court and arguments were advanced on the order the applications should take in being entertained.
Thereafter, the learned trial Court in a Ruling delivered on the same 8/06/2020 held thus.
“1. That all parties to this suit and their privies are hereby ordered not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st Defendant to conduct or hold the 1st Defendant’s Primary Election coming up next as scheduled by the 3rd Defendant pending the hearing and determination of this suit.
2. That all applications in this suit and the responses of parties shall be heard alongside the Originating Summons.
3. That parties are hereby directed to file and serve their responses if any to the processes served on them within 2 days from today.
4. That the hearing of this suit is fixed for Thursday the 11th of June, 2020 for hearing of all the applications together with the Originating Summons.”
Being dissatisfied with the said Ruling, the Appellant filed a notice of appeal dated 9/06/2020.
The Appellant’s brief of argument was subsequently filed on 15/06/2020, while the Appellants reply to the 1st and 2nd Respondents brief of argument was filed on 18/06/2020.
The 1st and 2nd Respondent filed their brief of argument on 17/06/2020. The 3rd to 5th Respondents did not file any brief of argument.
In the Appellant’s brief of argument, two issues for determination were formulated as follows:-
“1. WHETHER HAVING REGARD TO THE MANDATORY PROVISIONS OF SECTION 87(10) OF THE ELECTORAL ACT, 2010 (AS AMENDED) THE LOWER COURT WAS RIGHT IN HOLDING THAT ALL PARTIES TO THE SUIT AND THEIR PRIVIES SHOULD NOT DO ANYTHING OR PROCEED WITH ANY ACTION RELATING TO OR CONCERNING THE PROCEDURE TO BE ADOPTED OR USED BY THE 3RD RESPONDENT TO CONDUCT OR HOLD THE 3RD RESPONDENT’S PRIMARY ELECTION.
2. WHETHER HAVING REGARD TO THE DECLARATORY AND INJUNCTIVE RELIEFS OF THE 1ST AND 2ND RESPONDENTS HEREIN CONTAINED IN THEIR ORIGINATING SUMMONS, THE LOWER COURT WAS VESTED WITH JURISDICTION TO ENTERTAIN THE SUIT WHICH BORDERS ON THE INTERNAL OR DOMESTIC AFFAIRS OF A POLITICAL PARTY i.e THE 3RD RESPONDENT.”
In the 1st and 2nd Respondents brief of argument two issues were also distilled as follows:-
“1. Whether having regard to the provisions of Section 87(10) of the Electoral Act 2010 as amended the lower Court was stripped of the powers to make the order to the parties not to do anything in relation to the mode of primary election to be adopted. Grounds 1, 2 and 4.
2. Whether the issues submitted by the 1st and 2nd Respondents fell within the internal affairs of the 3rd Respondent thereby stopping the lower Court of jurisdiction. (Ground 3).
However, the 1st and 2nd Respondents also filed a motion on notice on 17/6/2020 praying for the following orders:-
“An order striking out Ground 3 of the Appellants Notice of Appeal and the issue 2 distilled therefrom in the Appellant brief of argument for being incompetent”.
The grounds for the Application are:-
1. That the ground 3 in the appellants Notice of Appeal raised an issue of jurisdiction which is exactly the same as the issue of jurisdiction pending before the lower Court and slated to be heard together with the originating summons.
2. The Appellant cannot raise an issue before this Court which is still pending and has not been decided upon by the lower Court.
3. This Court cannot therefore entertain the complaints of the Appellant as stated in Grounds 3 of the Notice of Appeal and same ought to be struck out with the issue 2 distilled therefrom.
4. That ground 3 of the Notice of Appeal having no issue to cover it is deemed abandoned and is liable to be struck out.
Arguments in support of the said motion on notice is embedded in pages 12 to 15 of the 1st and 2nd Respondents brief of argument at paragraphs 5.1 to 5.14.
The response by the Appellant is contained at pages 7 to 9 of the Appellant’s brief of argument. (Paragraphs 2.13 to 2.20).
I have carefully perused the submissions of counsel for the parties.
It is trite that a ground of appeal which is the nucleus of every appeal must attack and disclose the nexus with a decision that is the subject of an appeal. A ground of appeal must be linked to and question a ratio decidendi and not the obiter dictum of a judgment. Therefore, any ground of appeal that is alien to the ratio decidendi of a decision runs foul of the law and risks being struck out for being incompetent. See FBN PLC VS TSA INDUSTRIES LTD (2010) 15 NWLR (PT.1216) 247; GARUBA VS OMOKHODION (2011) 15 NWLR (PT. 1269) 145; ISAAC VS IMASUEN (2016) 7 NWLR (PT1511) 250, EGBE VS ALHAJI & ORS (1990) 1 NSCC (VOL2) (PT.1) 306, MARK VS EKE (2004) 5 NWLR (PT865) 54, OBASANJO VS YUSUF (2004) 9 NWLR (PT877) 144.
Likewise, it is trite law that issues for determination must be formulated or derived from the ground of appeal otherwise such issues alien to the ground or grounds of appeal will be of no moment and should be struck out together with the argument thereon. See MISS NKIRU AMOBI VS. MRS GRACE O. NZEGWU (2013) LPELR- 21863 (SC), THE FEDERAL REPUBLIC OF NIGERIA VS. MOHAMMED (2012) WRN/SC. 128, YISI NIG VS. TRADE BANK PLC (2013) 8 NWLR (PT. 1357) 522, AFOLABI FAJEBE & ANOR VS. ISAAC ADEBAYO OPANUGA (2019) LPELR- 46348 (SC), PATRICK D. MAGIT VS. UNIVERSITY OF AGRICULTURE MARKUDI (2005) 19 NWLR (PT. 959) 211.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In the instant case, the ground 3 in question reads thus:
“The learned trial judge erred in law in making the orders in the suit pending the final determination of the suit when the Court lacked the jurisdiction to do so.”
Issue two formulated from the above set out ground 3 is as follows:
“Whether having regards to the declaratory and injunctive relief of the 1st and 2nd having contained in their originating summons, the lower Court was vested with jurisdiction to entertain the suit which borders on the internal domestic affairs of the political party i.e. the 3rd respondent. (Ground 3).”
It is trite that for an issue for determination to be competent, it must relate to the ground or grounds of appeal. Where it is found not to relate, such issues so formulated and the argument derived therefrom are deemed incompetent and should be struck out. See OKPALA VS IBEME (1989) 2 NWLR (PT.102) 208. OGUDO VS THE STATE (2011) 18 NWLR (PT.1278) page1 act 45, MADUMERE VS OKAFOR (1996) 4 NWLR (PT445) 637, MOMODU VS MOMOH (1991) 1 NWLR (PT159) 668, IBATOR VS BARAKURO (2007) 9 NWLR (PT1040) 475.
From a review of the issue 2 formulated in the appellant brief of argument vis-a-vis ground 3 of the notice of appeal. I cannot but argue with learned senior counsel for the 1st and 2nd respondents that issue 2 is at variance with the said ground of appeal moreso that the said issue 2 dwells more on the issue yet be canvassed in the substantive suit before the lower Court.
In the circumstance, issue 2 as formulated in the appellant brief of argument is found to be incompetent and it is accordingly struck out with the argument in support thereof. That leaves ground 3 of the notice of appeal naked and abandoned and it is consequently struck out. See IKUMONIHAN VS THE STATE (2018) LPELR – 44362 (SC); EKUNOLA VS CBN & ORS (2013) 15 NWLR (PT 1377) 224; ADEJUMO VS OLAWAIYE (2014) 12 NWLR (PT 1421) 252; ISU VS UCHE & ORS (2009) LPELR – 8855 (CA).
This leaves the appellant with only issue one which reads thus:
“1. WHETHER HAVING REGARD TO THE MANDATORY PROVISIONS OF SECTION 87(10) OF THE ELECTORAL ACT, 2010 (AS AMENDED) THE LOWER COURT WAS RIGHT IN HOLDING THAT ALL PARTIES TO THE SUIT AND THEIR PRIVIES SHOULD NOT DO ANYTHING OR PROCEED WITH ANY ACTION RELATING TO OR CONCERNING THE PROCEDURE TO BE ADOPTED OR USED BY THE 3RD RESPONDENT TO CONDUCT OR HOLD THE 3RD RESPONDENT’S PRIMARY ELECTION.”
I shall consider this appeal on the premise of the said issue one as formulated in the appellant’s brief of argument.
Arguing on this issue, learned senior counsel to the appellant submitted that the Lower Court was wrong to hold that none of the parties should conduct any mode of primary election pending the determination of the substantive suit as this is against the clear provisions of Section 87(10) of the Electoral Act, 2010 (as amended). He added that the section stipulates that “Nothing in this section shall empower” the Courts to stop the holding of primaries or general election or the processes thereof under this Act pending the determination of a suit.
It was further submitted that a community reading of this section will show that nothing in Section 87 (1) to (9) of the Electoral Act, 2010 (as amended) can prevent a political party from conducting her primaries or INEC from conducting any General Election as prescribed in the Electoral Act, 2010 (as amended).
While referring to the reliefs contained in the Originating Summons and the questions raised for determination by the Plaintiffs, he contended the focus of the declaratory reliefs and the questions for determination were predicated on Section 87(1), (2) and (3) of the Electoral Act, 2010 (as amended). He added the word used in the said Section 87(10) of the Electoral Act, 2010 (as amended) is ‘SHALL’ which requires a mandatory compliance when used in an enactment. On this he cited OYEYIPO vs. OYINLOYE (1987) 1 NWLR (Pt.50) 464; DR TAIWOO OLORUNTOBA-OJU & ORS vs. PROFESSOR SHUAIB O. ABDUL- RAHEEM & ORS (2009)13 NWLR (Pt. 1157) 83 SC.
He argued that what the learned trial judge has done is to restrain the Appellant and the 3rd Respondent from conducting primaries for the election of the candidates of their choice whether direct or indirect primaries or the procedure or process for the election of such candidate(s) during the primaries.
It was further argued that Section 87(10) of the Electoral Act, 2010 (as amended) is clear or unambiguous in striping the lower Court of jurisdiction or power to restrain the 3rd Respondent from conducting any primary election pending the determination of the suit and this section means the lower Court is not empowered to grant such an order. In support of this he cited INAKOJU vs. ADELEKE (2007) 4 NWLR (Pt. 1025) page 423 particularly at pages 697 – 698 paras. H-B. In addition, he posited that the raison d’être for the enactment of Section 87(10) of the Electoral Act, 2010 (as amended) is to avoid a situation whereby orders of Courts are made or given brazenly to truncate the holding of a general election or the holding of primaries by parties.
RESPONDENT SUBMISSION
Arguing on issue 1, Learned counsel for the 1st and 2nd respondent while referring to the appellant’s submissions submitted that the argument is wholly resting on the provisions of Section 87(10) of the Electoral Act 2010 as amended without regard to the provenance of the judicial powers of the Federal High Court of Nigeria [a superior Court of record as enshrined in the provisions of 1999 Constitution as amended. He added that the issue is a challenge to the judicial power of the lower Court to make the order the subject matter of this appeal on the basis of an Act of the National Assembly, which is inferior to and subject to the Constitution which vested the judicial powers of the Federation in the Judiciary as an arm of Government.
It was further submitted that the extent that Section 87(10) of the Electoral Act 2010 as amended expressly curtails or seeks to regulate judicial powers granted by the Constitution to the lower Court is null, void and unconstitutional.
Relying on the case of PAUL IYORPUU UNONGO V. APER AKU & ORS (1983) LPELR-3422(SC) [(1981 – 1990) LRECN 1 in support of his stance, learned senior counsel contended that the National Assembly simply exceeded its legislative remit in enacting the provision of Section 87(10) of the Electoral Act 2010 as amended and it is a provision which directly undermines the independence of the Judiciary. Other cases relied on are,FRN VS OSAHON & ORS (2006) LPELR -3174 (SC) and TUBONEMI & ORS VS DIKIBO & ORS (2005) LPELR -7519 (CA).
He further contended that Section 87(10) of the Electoral Act 2010 ousted the power of the Court to make orders in a case that is properly before it and to that extent is in conflict with the provision of Section 6(6) (a) of the 1999 Constitution as amended and is therefore null void and of no effect in consequence of the provision of Section 1(3) of the 1999 Constitution as amended. He relied on INEC V. MUSA (2003) LPELR-24927(SC).
In conclusion, learned counsel argued that the order of the lower Court the subject matter of this appeal was not made in violation of the provisions of Section 87(10) of the Electoral Act as amended insofar as the June 22 2020 date for the 3rd Respondent’s primary election was not suspended, vacated, altered or put in abeyance at all. He added that parties were only put in status quo to ensure that the scheduled primary is conducted in accordance with the provision of the Electoral Act 2010 as amended and the constitution of the 3rd Respondent.
On issue 2, learned counsel submitted that the appellant is honestly and correctly summing up and projecting the case of the 1st and 2nd Respondents as plaintiffs before the lower Court and therefore mind boggling to find the same person within the same brief making a summersault to contend that the case of the 1st and 2nd Respondents borders on internal or domestic affairs of a political party which is outside the remit of a Court of law.
It was further submitted that the lower Court is seized of jurisdiction to entertain an action whose “declaratory reliefs and the questions for determination were predicated on Section 87(1), (2) and (3) of the Electoral Act, 2010 (as amended).”
Arguing further, he posited that a case whose relief and questions “are/were predicated on Section 87(1), (2) and (3) of the Electoral Act, 2010 (as amended)”, is not a matter within the purview of the domestic or internal affairs of a political party as perversely argued by the Appellant in paragraph 6.03 of the Appellant’s brief of argument.
It was contended that a case ceases to be a political question within the internal affairs or domain of a political once it entails or encompasses the construction, interpretation, application or violation of a statute as in this case. On this he cited PDP & ORS V OGUNDIPE & ORS [2018] LPELR-43887(CA), AMAECHI V INEC 2008 LPELR 446 (SC). He added that based on the questions for determination and the declaratory and injunctive claims or reliefs, the lower Court is vested with jurisdiction to adjudicate or determine the matter as it is not a matter within the purview of the domestic or internal affairs of a political party.
He further contended that the provision of Section 285(9) of the 1999 Constitution as amended is irrelevant to this case and the argument in paragraphs 6.06 and 6.07 are of no moment as this case was not filed prematurely as argued or at all.
It was submitted that the definition of pre-election matter in Section 285(14) of the 1999 Constitution is for the purposes of the provisions of Section 285(8), (9), (10), (11) and (12) in which the phrase pre-election matter is expressly referenced and in determining the legislative intent behind the definition in Section 285(14) of the 1999 Constitution it is only proper to read the provisions of the statute as a whole and not disjointly. He added that it is only by an aggregation of the subsections in the section dealing with pre-election matters can the legislative intent be distilled.
While referring to the appellant brief of argument particularly in paragraph 6.10, it was submitted that Section 285(14) of the 1999 Constitution did not define aspirant and the subsection certainly did not state that it is after screening of eligible candidates that an aspirant or aspirants will or can emerge from the screening exercise as these are not to be found from the provisions of Section 285(14) of the 1999 Constitution. He added that the violation by the Appellant of a statutory right donated to the 1st Respondent by the National Executive Committee of the 3rd Respondent is an actionable wrong within the definition contained in the case of TUKUR vs. GOVERNOR OF GONGOLA STATE cited in paragraph 6.23 of the appellant Brief.
Flowing from the above submissions, it was further submitted that the lower Court is vested with jurisdiction over all the issues on the originating summons and the dictum of OBASEKI JSC in TUKUR V GOV. OF GONGOLA STATE referenced in paragraph 6.23 is not applicable to this case and the covid-19 Regulations were made pursuant to the provisions of the Quarantine Act, an act of the National Assembly which forms an integral part of the Act.
It was argued that the 1st and 2nd Respondents have locus standi to initiate the action at the lower Court and the case discloses reasonable cause of action that is well within the jurisdiction of the lower Court under the provisions of Section 251 of the 1999 Constitution as amended. He added that the statutory power to determine the type of primary to be adopted under the provisions of Section 87(2) of the Electoral Act 2010 as amended was delegated to it by the Principal Executive organ of the 3rd Respondent, National Executive Committee but that the Appellant masquerading as the National Working Committee of the 3rd Respondent unilaterally and arbitrarily usurped the statutory power delegated to the 1st Respondent thereby violating the provisions of Section 87(1) and (2) of the Electoral Act 2010 as amended.
In reply, learned senior counsel to the appellant submitted that cases are only authorities for what is decided in them and no case can be cited as an authority for the other unless the issues decided in the cases are the same. He relied on the case of OKAFOR vs. NNAIFE (1987) All NLR 517 at 525. He added further that the Supreme Court has in several judicial authorities held that the applicability of the decision in the case of UNONGO v. APER AKU (supra) is restricted to the circumstance(s) which necessitated the decision of the Court in the case and the Supreme Court has in a line of electoral judicial authorities departed from the decision based on the fact that the principle decided in the case has since been expunged from our electoral jurisprudence.
It was further submitted that the Section 87(10) of the Electoral Act, 2010 (as amended) does not strip the trial Court of its substantive Jurisdiction to hear pre-election matters within its jurisdiction and that the section is merely to admonish the Courts not to grant any order to restrain the holding of an election or primaries pending the hearing and determination of the substantive suit.
It was contended that the submissions of the Appellant in his Brief of Argument does not constitute admission because consent of parties if any, which is non-existent in this case does not confer jurisdiction on a Court of law. He added that Section 87(1), (2) & (3) of the Electoral Act, 2010(as amended) merely stipulates the procedure(s) by which political parties can conduct their primaries, whether direct or indirect primaries which is an internal or domestic affair of parties.
He contended further that the threshold as stipulated under Section 87(9) of the Electoral Act, 2010 (as amended) has been completed that any person dissatisfied with the primaries can now seek redress either at the Federal High Court or State High Court or the High Court of the FCT and that the Plaintiffs herein have not even participated in any primary election of the 3rd Respondent before they rushed to the Lower Court to institute this action. He added that the lower Court cannot in the exercise of its inherent powers or jurisdiction circumvent the provisions of a statute and make orders which are in contravention of the provisions of a statute. He placed reliance on the case of ALHAJI JELANI MABERA V. PETER OBI (1972) 8-9 SC 147 @ 156.
In conclusion, learned counsel submitted that the learned trial Judge was wrong in relying on Order 56 Rule 1 (Miscellaneous Provisions) of the Federal High Court (Civil Procedure) Rules, 2019 in making the order of the 8th day of June, 2020 and the exercise of the discretionary powers of a Court must be exercised judicially and judiciously and not to the detriment of a party like the order made by the Learned trial Judge in this case. He added that Rules of procedure as contained in Order 56 Rule (1) of the Federal High Court (Civil Procedure) Rules, 2019 cannot override the provisions of Section 87(10) of the Electoral Act, 2010 (as amended) which is a substantive law made by the National Assembly unlike the Federal High Court (Civil Procedure) Rules, 2019 which was made by the Chief Judge of the Federal High Court.
I have read the record of appeal with particular reference to the proceedings of the lower Court on the 8/06/2020 as well as the ruling subject matter of this appeal. I have also given due consideration to the submissions of learned senior counsel for the appellant and the 1st and 2nd respondents. One salient but germane point to be noted is that the submissions of the counsel in support of the issues distilled for determination greatly encroach on the subject matter of the substantive suit before the lower Court.
The main grouse of the appellant is that the lower Court ought not to have made the order as per the ruling delivered on 8/06/2020. The said order was made pending the determination of the substantive suit. For the avoidance of doubt, the said Order of the lower Court made on 8/06/2020 is herein below set out.
1. That all parties to this suit and their privies are hereby ordered not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st Defendant to conduct or hold the 1st Defendant’s Primary Election coming up next as scheduled by the 3rd Defendant pending the hearing and determination of this suit.
2. That all applications in this suit and the responses of parties shall be heard alongside the Originating Summons.
3. That parties are hereby directed to file and serve their responses if any to the processes served on them within 2 days from today.
4. That the hearing of this suit is fixed for Thursday the 11th of June, 2020 for hearing of all the applications together with the Originating Summons.
This is the ruling of this Court.
SIGNED
M.G. UMAR
JUDGE
8/6/2020
From the above set out Order of the lower Court, it is glaring that no decision has been given with respect to the substantive suit before it, but parties in the appeal, as per issues presented for determination have sought to lure this Court into engaging in a vainglory expectation into a matter that has not been considered or decided upon by the lower Court.
This no doubt will push this Court into the cage of the absurd and ridiculous. Gratefully, this snare has been detected by this Court and it will bring reproach to the administration of justice if a venture is made to panel beat the appellant’s case with a view to bringing it in line with the interlocutory decision appealed against.
The law is trite that when dealing with interlocutory proceedings, efforts must be made not to dabble into substantive matters. In other words, the merit of the substantive case is best preserved always by ensuring that it is not disposed of prematurely. See OMONUWA VS. A.G BENDEL STATE (1983) 4 NCLR 237, MORTUNE VS. GAMBO (1979) 3-4 SC 54, OJUKWU VS. GOVERNOR OF LAGOS (1986) 3 NWLR (PT. 26) 29, INEC VS. OGUEBEGO (2018) 8 NWLR (PT. 1620) 99.
It will no doubt be preposterous for this Court to embark on deciding on a substantive matter still pending before a lower Court when the matter brought before it is an interlocutory appeal based on the nature of the order made by the lower Court.
On this premise, I hold that this appeal shall be and it is hereby struck out.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA. I agree with His Lordship’s reasoning and conclusion that this appeal should be dismissed. I agree that the grounds of appeal are substantially based on matters on which the learned trial Judge did not hear or determine. None of the reliefs sought by the Appellant indicated a prayer for this Court to exercise its powers under Section 15 of the Court of Appeal to bring up for determination issues still pending at the trial Court in the originating summons proceedings. The issues distilled for determination by the Appellant are not yet ripe for hearing in this Court.
Appeal struck out.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the decision of my learned brother, Samuel Chukwudumebi JCA; just delivered.
I agree with the reasoning and conclusions, including the orders, of my learned brother.
Appearances:
ROLAND OTARU (SAN), with him, K.O. OBAMOGIE Esq. For Appellant(s)
K.E. MOZIA (SAN), with him, J.O. ODUBELA (SAN), ROBERT EMUKPOERUO Esq. and OLADIPO OSINOWO Esq. – for 1st and 2nd Respondents
CHIEF H.O. OGBODU (SAN), with him, A.I. OSARENKHOE Esq. – for 3rd Respondent.
MRS B.O. OWOLABI – for 4th Respondent
M.O. OMOSUN Esq. – for 5th Respondent For Respondent(s)
