AYU v. NDUKWE & ORS
(2022)LCN/16328(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/ABJ/CV/537/2022
Before Our Lordships
Haruna Simon Tsammani Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
DR. IYORCHIA AYU APPELANT(S)
And
1. RT. HON. COSMOS CHUKWU NDUKWE 2. PEOPLES DEMOCRATIC PARTY 3. SENATOR NNAEMEKA ANYANWU 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION 5. HAYATU-DEEN MOHAMMED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON “PRE-ELECTION MATTERS”
Where a complaint is against the selection or nomination of a candidate of a political party for election, such a complaint which naturally arises from incidences prior to the election proper is termed a pre-election matter, which term, (pre- election matter) has been recognized and given meaning under Section 84 (14) of the Electoral Act and the Constitution to mean:
i. 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 the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
ii. 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
iii. 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. PER BARKA, J.C.A.
THE MEANING OF THE TERM “FINDING”
The position of the law is that a finding is the decision of the Court see Mainstreet Bank Registrars Ltd vs. Awe Olugbenga (2017) LPELR-50998 (CA), Popoola vs. MTN Nig. Communications Ltd & Anor (2021) LPELR-55984(CA). It is the result or inference arrived at by a judge after a careful collation and sintering of the facts and evidence or otherwise in support of the facts as pleaded by the parties. See, Arisons Trading & Engineering Company Ltd vs. The Military Governor of Ogun State & Ors (2009) 3 FWLR (pt. 485) 6805. That statement of the Court having formed the conclusion of the Court on the issue cannot by any stretch of imagination be termed as an obiter. PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal arose from the decision of the Federal High Court, Abuja, coram D.U. Okorowo J, in suit with No. FHC/ABJ/CS/508/2022, between RT. Hon. Cosmos Chukwudi Ndukwe and Peoples Democratic Party (PDP) and 4 Ors, delivered on the 10th day of May, 2022. By the said ruling, located at pages 474-480 of the record, the lower Court arrived and held the view that:
“On the whole, balance of probability is in favor of granting the application, in the circumstance it is hereby ordered as follows:
i. The plaintiff having filed their process, originating summons and served on the 1st and 2nd defendants, they are given four days from today to file their response on the substantive suit.
ii. The 3rd and 4th defendants are given four days from service of the originating process in this suit to file their response.
iii. The plaintiff is given two days from service of the defendant’s processes to file their response if any to the processes of the defendants.
iv. In line with the provisions of Section 285 (8) of the Alteration to the Constitution No. 29 of 2010 all applications challenging the jurisdiction of this Court to hear this action shall be taken together with the main argument in the substantive suit and ruling delivered at the stage of judgment.
v. This matter is adjourned to 18th May, 2022 for adoption of addresses by the parties”.
It should be recalled that the 1st respondent by way of an originating summons filed on the 19th day of April, 2022 sought for the following reliefs:
i. A declaration that by virtue of Article 7(3)(c) of the Constitution of the Peoples democratic Party (as amended in 2017) the 1st-3rd defendants are bound to adhere to the policy of rotation and zoning of party and public elective offices in pursuance of the principles of equity, justice and fairness.
ii. A declaration that by virtue of Article 7(3)(c) of the Constitution of the Peoples Democratic Party (as amended in 2017) and the principles of equity and fairness, the 1st to 3rd defendants are bound to zone the public elective office of the President of Nigeria for the 2023 general elections to the southern part of Nigeria (Southern Nigeria).
iii. A declaration that the 1st to 3rd defendants are bound by the provisions of the constitution of the People’s Democratic Party (as amended in 2017) and are liable to implement them until the provisions are set aside by the National Convention of the party,
iv. A declaration that by virtue of Electoral Guidelines for Primary elections issued by the Defendants, applicable with effect from March 7th, 2022 for the purpose of regulating the conduct of primary elections for the selection or nomination of the Presidential Candidate of the 1st Defendant for the 2023 general elections, the 1st to 3rd Defendants are not entitled to adopt a consensus candidate or resort to a consensus method of selection of nomination of candidate but liable to adhere to the method of election provided for by the 1st Defendant’s Constitution and electoral guidelines for primary elections which is by a special national convention of the 1st Defendant “using the modified open secret ballot system”
v. An order of injunction restraining the 1st to 3rd Defendants by themselves or by their servants, agents or privies from failing to or refusing to implement the policy of rotation and zoning in the selection or nomination of the candidate of the 1st Defendant for the public elective office of the President of the Federal Republic of Nigeria in respect of the 2023 general election.
vi. An order of injunction restraining the 1st to 3rd Defendants by themselves or by their servants, agents or privies from adopting a consensus method of selection or nomination of the 1st Defendant’s candidate for the public elective office of the President of Nigeria for the 2023 general election.
vii. An order of injunction restraining the 4th Defendant from accepting the name of any nominee from the 1st to 3rd Defendants who emerged from the process of consensus or any other process in breach of the policy of rotation and zoning of public elective office enshrined in the Constitution of the 1st Defendant for the 2023 general elections
The reliefs sought are premised upon the following being favorable answered in favor of the plaintiff:
i. Whether upon a proper construction of the provisions of Section 228 of the Constitution, Section 84(14) of the Electoral Act 2022 the Defendants are not bound by provisions of the Constitution of the Peoples Democratic Party (as amended in 2017) as well as the provisions of the 1st Defendant’s electoral guidelines for primary elections and liable to adhere to and implement the provisions of the said Constitution and guidelines?
ii. Whether upon a proper construction of the provisions of Article 7(3)(c) of the Constitution of the Peoples Democratic Party (as amended in 2017) the defendants are not bound to adhere to the policy of rotation and zoning of party and public elective offices including the selection or nomination of the candidate of the 1st defendant for the public elective office of the President of the Federal Republic of Nigeria in respect of the 2023 general election.
iii. Whether upon a proper interpretation of the provisions of Article 50 (Chapter 8) of the Constitution of the Peoples Democratic Party (as amended in 2017) paragraph 1(1) and (ii) of part II of the 1st defendant’s Electoral guidelines for primary elections, paragraphs 7, 8, 9, 10 and 11 of part VI of the 1st defendant’s electoral guidelines for primary elections and Section 84 (1), (2) and (9) of the Electoral Act 2022 the defendants are entitled to adopt the consensus method of selection or nomination of Presidential candidate for the 1st defendant for the 2023 elections.
iv. Whether upon a proper construction of the provisions of paragraph 9 (e) of part VI of the 1st defendant’s electoral guidelines for primary elections including the provision that “….no aspirant shall be declared nominated or elected as the flag bearer of the party unless he had polled the highest number of votes cast” at the primary elections, the defendants are entitled to adopt the consensus method of selection or nomination of the Presidential candidate for the 1st defendant for the 2023 general elections.
The 1st, 2nd and 3rd defendants variously filed notices of preliminary objection, all urging the Court to strike out the suit for want of jurisdiction, and further that the suit is statute barred. In the course of proceedings before the lower Court, particularly on the 10th of May, 2022, 1st respondent’s counsel applied for an accelerated hearing of the suit and also applied for abridgment of time within which the parties may file in their various processes in the suit, regard being heard to the urgency of the subject matter of the suit which related to the proper conduct of the primary election then scheduled for the 28th day of May, 22nd of the 2nd respondent the (PDP) for the nomination of its presidential candidate to contest the 2023 general elections. The 2nd and 3rd respondents opposed the application, but that notwithstanding the lower Court delivered the vexed ruling on the 10th day of May, 2022 as aforesaid, thus generating the instant appeal.
Dissatisfied with the ruling of the lower Court, appellant filed a Notice of Appeal on the 17th of May, 2022 predicated on four grounds of appeal, as can be found at pages 481-486 of the record. The extant Notice of Appeal is that filed on the 2nd of June, 2022 with the leave of Court, also predicated upon four grounds of appeal. The lower Court dutifully compiled and transmitted the record of appeal on the 23rd day of June, 2022, while additional record was transmitted on the 3rd day of June, 2022. With the appeal duly and properly entered, Appellants filed a brief of argument on the 27th day of May, 2022, deemed properly filed on the 3rd of May, 2022. Appellant also filed a reply to the brief filed by the learned counsel for the respondents on the 3rd of May, 2022, also deemed properly filed on the 3rd of June, 2022. On the 3rd June, 2022, being the scheduled hearing date, Mr. Aliyu SAN, the learned counsel appearing for the appellant identified the processes filed in the appeal, adopted the submissions made in the two briefs filed, and urged the Court to allow the appeal.
Mr. Erokoro SAN, learned counsel on behalf of the 1st respondent filed the respondent’s brief, incorporating a preliminary objection on the 30th day of May, 2022, deemed properly filed on the 3rd of June, 2022. The learned senior counsel on the slated date for hearing, adopted the process containing his submissions on the issues, and urged the Court to dismiss the appeal. The learned silk also opined that the amendment just granted the appellant that day has no effect whatsoever to the arguments canvassed to the effect that the appeal is incompetent by reason of the joinder of the 5th respondent who was not a party at the stage the ruling was delivered.
In response thereto, Mr. Aliyu SAN, for the appellant, retorted that the joinder of the 5th respondent was not done unilaterally, arguing that the principle relied upon by the 1st respondent prohibits unilateral alteration of parties without the leave of Court, but argue still that, with respect to the case at hand, the trial Court having ordered the joinder of the 5th respondent on the 19th day of May, 2022, particularly referring to pages 206-209 of the supplementary record, argued that the trial Court having ordered all parties to amend their processes to reflect the joinder, and the 5th respondent having been a party since then, and with respect to page 49 of the supplementary record; cannot be successfully argued that the 5th respondent was unilaterally joined as a party. In any case, it was submitted that applicant having obtained the leave of Court to submit to its jurisdiction, the submission of the learned counsel on the issue cannot be sustained.
It should be noted that Mr. Magaji SAN, the learned counsel for the 2nd respondent, Mr. Ukairo the learned counsel for the 3rd respondent and Mr. Mohammed SAN, who appeared for the 5th respondent did not file any process in the appeal.
In the brief filed on behalf of the Appellant, settled by Abdullahi Mr. Aliyu SAN, three issues were submitted as arising for the determination of the appeal as follows:
i. Whether this action falls within the definition of a pre election matter to warrant the application of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 to the proceedings before the trial Court.
ii. Whether the learned trial Judge was right to grant the orders for abridgment of time when he had no jurisdiction to entertain this action as all the conditions precedent for the exercise of the said jurisdiction had not been met by the 1st respondent.
iii. Whether the learned trial Judge did not breach Appellant’s right to fair hearing when he determined at the interlocutory stage that the 1st respondent is an aspirant in addition to holding that this is a pre-election matter when the issues are matters submitted for determination at the main trial of the action.
I did state earlier in the judgment, that 1st respondent filed a notice of preliminary objection to the hearing of the appeal, which notice was filed on the 2nd of June, 2022 and argued in the respondents’ brief settled by Mr. Paul Erokoro SAN, but that notwithstanding, crafted three issues for the resolution of the appeal at page 24 of the brief as follows:
i. Whether the suit falls within the definition of a pre-election matter to warrant the application of Section 285 of the 1999 Constitution of the FRN, as amended to the proceedings by the learned trial Court.
ii. Whether the learned trial Court was justified when it granted the orders for abridgment of time and accelerated hearing of the originating summons, in all the circumstances of this case.
iii. Whether the ruling of the learned trial Court prejudged any issues or had adjudged the 1st respondent to be an aspirant, in all the circumstances of this case.
The Preliminary Objection.
The 1st respondent’s Notice of Preliminary objection filed on the 2nd of June, 2022 was argued in the 1st respondent’s brief, from pages 6-24 thereof. The grounds upon which the objection is hinged upon are as follows:
1. That the appellant’s appeal is pre-mature and ought to be deferred by this honourable Court until the final judgment of the learned trial Court is delivered in keeping with the mandatory provisions of Section 285 (8) (12) of the 1999 Constitution of the FRN as amended.
2. That the appellant’s appeal is an undisguised attempt at pre-empting the decision of the learned trial Court on the issues of jurisdiction pending before it and circumventing the mandatory provisions of Sections 285 (8) & (11) of the 1999 Constitution, as amended which mandates that issues of jurisdiction shall be determined at the stage of final judgment.
3. That the appellant’s appeal constitutes an abuse of the judicial or Court process being that the appellant is setting up a different case before this Court, approbating and reprobating and the issues of jurisdiction now being canvassed in this appeal are the self same issues raised by the appellant before the learned trial Court in respect of which the parties have joined issues and which is still pending before the learned trial Court for resolution.
4. That all the three grounds of appeal contained in the appellant’s notice of appeal are defective, incompetent and unarguable before this honourable Court being that:
i. Ground One challenges a mere obiter dictum or comment made in passing by the learned trial Court and not the ratio decidendi or reason for the decision of the learned trial Court to grant accelerated hearing and abridgement of time and is also predicated on the fictitious and false assumption that the learned trial Court made a finding of fact that the 1st respondent was indeed an aspirant.
ii. Ground two complains about the trial Court’s finding that this suit is a pre-election matter within the meaning of Section 285 (14) (a) of the 1999 Constitution, as amended, which finding was based on the agreement and consent of the parties, and in respect of which the appellant has no right of appeal, except with the prior leave of Court.
iii. Ground three raises the issue of want of jurisdiction on the part of the learned trial Court to entertain the suit, which said issue the appellant has already raised and which is pending before the learned trial Court and is yet to be determined.
iv. Grounds 1, 2 and 3 all raise issues of fact or mixed law and facts in respect of the interlocutory ruling of the learned trial Court in respect of which the appellant has no right of appeal as of right, except with the leave of Court and no such leave was sought and obtained before the filing of this appeal.
5. That the subject matter of the appellant’s appeal is the interlocutory ruling of the earned trial Court, wherein the Court exercised its discretion to grant accelerated hearing and abridgment of time in respect of which the applicant has no right of appeal, except with the prior leave of Court, if at all and no such leave was sought and obtained before the filling of this appeal.
6. That the Appellant’s Brief of argument is defective and incompetent as the Appellant has reconstituted and mis-constituted the parties therein to include Hayatu-Deen Mohammed as the 5th respondent to this appeal who was neither a party to the suit and the ruling subject matter of the appeal nor named on the Notice of Appeal by which this appeal was commenced.
7. That this Honourable Court lacks the jurisdiction to entertain the interlocutory appeal of the Appellant or to consider and pronounce on the issues of jurisdiction canvassed by the Appellant, unless and until the same has been pronounced upon in the final judgment of the learned trial Court pursuant to Section 285(8) of the 1999 Constitution, as amended.
Submitting on the grounds, most particularly on the first ground which alleged that appellant’s brief is incompetent, the learned counsel for the 1st respondent drew the Court’s attention to the fact that appellant had reconstituted and mis-constituted the parties to the appeal to include one Hayatu Deen Muhammed as the 5th respondent to the appeal who was neither a party on the Notice of Appeal or party to the suit. He complained that the appellant in the circumstance had no right whatsoever reconstituting the parties to the suit or to join other parties to the appeal, and by doing so vitiating the appellant’s brief filed rendering it incompetent. The cases of Anyanwu vs. Oparaocha & Ors (2019) LPELR-47336 (CA) per Abadua, JCA, CBN vs. Linas International Ltd (2018) LPELR – 44819, per Ige JCA and Hon. Minister of Labour & Productivity vs. Gbeleyi (2008) LPELR-4267 (CA) were relied upon, on whether the appellant’s appeal is premature, the learned counsel further referring to the provisions of Section 285 (12) of the CFRN 1999 as amended, and thereby contended that the appellant’s appeal is a disguised attempt at pre-empting the decision of the Court on the issue of jurisdiction which is pending before it, circumventing the mandatory provisions of sections of the constitution as aforementioned, and cited the case of Ihedioha vs. PDP & Ors (2018) LPELR-46262 (CA) on the point positing that the substantive originating summons is still pending in Court where the self same issue of jurisdiction is pending under the preliminary objections raised. On whether the appeal is an abuse of Court process, it was argued that appellant is using the instrumentality of the appeal to set up a new case before the Court different from the position he took before the trial Court, drawing the Court’s attention to the arguments of the appellant under issues 1 and 2 at pages 5-17 of the brief, wherein it was now contended that the appeal is not a pre-election matter to which Section 285 of the 1999 Constitution applies, contrary to his earlier position before the lower Court where he had maintained that the suit was indeed a pre-election matter at pages 357-359 of the record and submits that by taking the two diametrical opposed positions appellant is making a farce of the proceedings which is not permissible under the law, and the cases of Ajide vs. Kelani (1985) 3 NWLR (pt.12) 248 at 269, and Akuneziri vs. Okenwa (2000) 15 NWLR (pt. 691) 526 at 551 were cited on the need to be consistent for the parties stating their case. He submits that the issue as to the nature of the suit is fundamental as it dove tails into the issue of jurisdiction, and argued that while the issue of the preliminary objection was still pending, having been adjourned to be taken together with the substantive originating summons, appellant sought to pre-empt the issue of jurisdiction pari pasu before the same Court, between the same parties, and seeking the same reliefs, and made reference to the case of Ihedioha vs. PDP & Ors (2018) LPELR-46262, and Agwasim vs. Ojichie & Anor (2004) 10 NWLR (pt. 882) 613 at 624, as well as AG of Ondo State vs. AG Ekiti State (2001) 17 NWLR (pt. 743) 706 at 771, Umeh vs. Iwu (2008) 8 NWLR (pt. 1089) 243 at 260 on the attributes of abuse of judicial process; maintaining that where the Court finds that a suit or an appeal before it constitutes an abuse of process, the proper order to make is that of dismissal and accordingly urged the Court to dismiss appellant’s appeal being an abuse of the judicial process.
On whether the three grounds of appeal are grounds of mixed law and facts, learned counsel made reference to the holding in the cases of Okeke & Ors vs. Obinabo (2018) LPELR-44533 (CA), CBN vs. Okojie (2002) 8 NWLR (pt. 763) 48, and Nalsa and Team Associates vs. NNPC (1991) 11 SCNJ 51 at 74, and posited that a critical evaluation of the three grounds of appeal readily shows that the grounds are of mixed law and facts for which the leave of Court is a prerequisite. Also citing the case of Okoye vs. Tabansi (2002) (pt. 85) 262 at 279, learned counsel argued that the issue of obtaining leave and the filing of leave in interlocutory matters must be done within 14 days, and where not done, that appeal will be rendered incompetent and liable to be struck out. Premised on the above, learned counsel urged the Court to strike out the appeal.
Further to the above submissions, learned counsel views the three grounds raised as incompetent, and having analysed the three grounds of the appeal concluded that the three grounds are for the reasons adduced incompetent appearing from pages 19-24, concluding that all the grounds of appeal and indeed the entire notice of appeal is incompetent, and the preliminary objection ought to be allowed, striking out the appeal.
Responding to the preliminary objection, the learned counsel for the appellant from pages 1-14 of the reply brief submitted that the preliminary objection was totally misconceived and should be overruled.
On the issue of the substantive appeal, learned counsel argued that unless and until a matter is a pre-election matter within the contemplation of Section 285 (14) of that Section, then the Section cannot apply, also submitting that 1st respondent did not take part physically in the 2nd respondent’s primary election regarding him as an aspirant, and on the challenge on the validity of joining Hayatu-deen Mohammed as a party as the 5th defendant, learned counsel replied that the joining of the 5th defendant/respondent was consequent to the order of Court asking parties to amend their processes to accommodate the 5th defendant now respondent. On the contention that appellant’s appeal is premature, learned counsel also contended that before the Court could so hold, it must determine whether the suit was a pre-election matter within the contemplation of Section 285 (14) of the Constitution, and referred to the decision of Akinremi & Anor vs. Suleiman & Anor (2022) LPELR- 56903 (CA) per Tsammani, JCA, positing that once the suit culminating into the appeal is not a pre-election matter, then it cannot enjoy the application of Sections 285(11) and (12) of the Constitution. The case of APC vs. Aguma (2020) LPELR-52574(CA), was relied upon. He insisted that the suit not being a pre-election matter, the decision of Ihedioha vs. PDP (supra) is not applicable, and the quarrel being on jurisdiction of the Court, that of an interlocutory appeal on jurisdiction that can be heard expeditiously should be heard by the Court. On the contention that the appeal is an abuse of the process of Court, it was contended that the contention is misconceived, as the issue does not arise. He contended that the lower Court having made a finding to the effect that the plaintiff was an aspirant, there was nothing again to determine. On the contention on whether the three grounds of appeal are of mixed law and facts, it was contended that all the three grounds are of pure law for which the leave of Court is not a prerequisite, as the appellant is entitled to appeal as of right. Finally, on whether the three grounds of appeal are incompetent, counsel made reference to the case of Bob vs. Akpan (2010) 17 NWLR (pt. 1223) 421 at 464-465 on how a ground of appeal can arise, pointing out that ground one arose out of the commission or omission by the lower Court in not doing what it ought to do having preempted and predetermined a live issue at an interlocutory stage, which is forbidden as held in Dangote Industries Ltd and Anor vs. Aragbada & Ors (2022) LPELR-56898 (CA), and reiterated the fact that parties having joined issues the ground of appeal cannot be said to be fictitious. He urged the Court on the totality of all that has been said to dismiss the preliminary objection as lacking in merit.
In resolving the issues raised by the preliminary objection, I have given due consideration to all the submissions of the parties, I have assiduously studied the case law cited as well as the record of proceedings. Starting from the first issue canvassed, whether the appellant’s appeal can be said to be premature, the nature of the suit becomes of paramount consideration. First to be considered however, is the argument posited by the learned counsel for the respondent that appellant reconstituted or mis-constituted the parties so as to include one Hayatu-deen Mohammed as the 5th respondent maintainable in the instant circumstance. I agree with the state as enjoined by this Court in the cases of Anyanwu vs. Oparaocha (supra) and CBN vs. Linas International Ltd (supra) that it is not open to any party to unilaterally effect a change in the names of the parties who are on record without an order of Court. This is premised on the sound legal position that all processes and documents whatsoever prepared in pursuance of a suit or an appellate jurisdiction of the Court for filling, to reflect the same title as that which obtained in the Court of trial, thus it is clear that the name of the 5th respondent cannot be included without an order of the Court. The appellant is right on that score, but cannot be right all through in the face of the order of the lower Court granted on the 19th day of May, 2022, which order also asked that parties amend their processes to reflect the said joinder of the said Hayatudeen Mohammed as the 5th defendant. This no doubt amputated the 1st respondent’s argument on the issue and the submission made on that count must fail. On whether the appeal is premature, and that which tried to circumvent the provisions of Section 285 (8)-(12) of the Constitution, heavily relying on the case of Ihedioha vs. PDP & Ors (supra) per Agim, JCA as he then was, it cannot be disputed that the case cited represents the position of the law in respect of the issue determined therein. Sections 285 (8)-(12) of the Constitution is invoked where Section 285 (14) is at play, that is where the appeal is based on a pre-election matter within the contemplation of the provision of Section 285 (14) of the Constitution as amended. Indeed this Court per Tsammani, JCA in the recent case of Akinremi & Anor vs. Suleiman & Anor (2022) LPELR-56903 (CA), guided by the decisions of the Apex Court in APC vs. Moses (2021) 14 NWLR (pt. 1796) 278 and Aguma vs. APC (2021) 14 NWLR (pt. 1796) 351, limited the meaning given to the term pre-election to Section 285 (14), conclusively holding that where the appeal is not a pre-election matter within the scope of Section 285 (14) of the Constitution, Sections 285 (8)-(12) of the Constitution cannot apply. I fully agree with the interpretation given, and thereby see the determinant question to be whether the appeal is one based on a pre-trial matter, so as to give the 1st respondent a cause to complain as he did.
The originating summons filed by the plaintiff before the lower Court can be seen at pages 3-164. Therein the lower Court was asked to determine the questions posed at pages 4-5 of the record. The aggregate of the questions posed and for which the plaintiff therein seeks to compel the 2nd respondent the PDP, to apply the principle of Zoning and rotation of political offices, to me is without an iota of doubt pertaining to the internal arrangement, or interpretation to be given to the 2nd respondent’s constitution with respect to the issue of Zoning or rotation. It never questioned any pre-election process in which the 1st respondent can be said to be an aspirant contemplated by Section 285 (14) (a) (b) and (c) thereof. On the premise that the 1st respondent did not make any effort in showing that the matter is a pre-election matter, this Court cannot be asked to invoke the provisions of that section. The submission of the learned counsel for the 1st respondent on the issue therefore is without basis and must fail. On the contention that the appeal is an abuse of the Court process, 1st respondent is aggrieved that the appellant before the lower Court held on the position that the suit was in fact a pre-election matter, while contending before this Court that the suit is not a pre-election matter. I agree with the established principle of the law, that a party should be consistent in stating his case and in proving it. See Akuneziri vs. Okenwa (2000) 15 NWLR (pt. 691) 526 AT 551, and Ajide vs. Kelani (1985) 3 NWLR (pt. 12) 248 AT 269, but must be quick to state that even where it is so, the question of whether the suit is a pre-election matter or not being a jurisdictional matter, parties cannot on their own confer or clothe any Court with jurisdiction, where the Court has none. The cases of APGA vs. Anyanwu (2014) 7 NWLR (pt. 1407) 541 AT 569 and Adeyemi vs. State (1991) 6 NWLR (pt. 195) 1 are apposite to the point. It follows therefore, that even where the appellant fails to adhere to the principle of being consistent in the presentation of its case, and thereby posed two divergent positions, the jurisdiction of the Court is not affected by that wrong doing. See Obiuweubi vs. CBN (2011) 7 NWLR (pt. 1247) 465. There is the further contention that the grounds of appeal enumerated are grounds of mixed law and facts requiring the leave of Court being sought and obtained. In other words, could the four grounds of appeal raised by the appellant, considered to be grounds of mixed law and facts for which the leave of this Court is a necessary precondition? With that in mind, I have carefully and minutely studied the grounds of appeal located at pages 481-484 of the record. I have equally studied the submissions of the two learned counsel on the issue, and against the backdrop that ground four has been abandoned; inclined in accepting the submission of the learned counsel for the respondent that grounds 1, 2 and 3 are grounds of law for which the leave of Court is not a requirement. The observation of the 1st respondent with regards to ground one predicated on the statement couched at pages 476-477 of the record, to the effect that:
“The common grounds among the parties are that this is a pre-election matter. The plaintiff as aspirant in the presidential primary is seeking declaratory and injunctive relief against the defendants on implementation of the provisions of the party constitution on zoning for selection of presidential candidate for the 1st defendant in 2023 General Election.”
In my humble view, evidently clear that the Court rode on the back of the above statement, to reach its verdict, in other words, the words formed the findings of the Court on the matter, and whereas, the law is settled by authorities so numerous to mention, that remarks, obiter dicta or directives of a Judge in a judgment are not appealable, see Balonwu vs. Gov. of Anambra State (2010) 1 FWLR (pt. 510) 1127, Amobi vs. Nzegwu & Ors (2013) LPELR-21863(SC). It seems clear to me that the above statement amounted to a finding upon which the Court leveraged upon in reaching its final decision in the suit before it. The position of the law is that a finding is the decision of the Court see Mainstreet Bank Registrars Ltd vs. Awe Olugbenga (2017) LPELR-50998 (CA), Popoola vs. MTN Nig. Communications Ltd & Anor (2021) LPELR-55984(CA). It is the result or inference arrived at by a judge after a careful collation and sintering of the facts and evidence or otherwise in support of the facts as pleaded by the parties. See, Arisons Trading & Engineering Company Ltd vs. The Military Governor of Ogun State & Ors (2009) 3 FWLR (pt. 485) 6805. That statement of the Court having formed the conclusion of the Court on the issue cannot by any stretch of imagination be termed as an obiter.
The other two grounds, i.e grounds 2 and 3, which complain is hinged on the jurisdiction of the lower Court in the way it conducted proceedings without jurisdiction, and the further complaint hinged on the holding that the suit before it, is a pre-election matter are all issues bordering on law. In the event the decision of my Lord Ikyegh in Private Networks Nigeria Ltd vs. Visa Investment and Securities Ltd (2016) LPELR – 41486 (CA) is appropriate and apt.
Lastly, are the three grounds of appeal incompetent as the 1st respondent would want this Court to believe and to hold? Having carefully studied the grounds of appeal, and from the permutations made before now, I also answer the question posed in the negative and thereby dismiss the preliminary objection for lacking in merit.
On the Main Appeal.
In the determination of the appeal, I intend to be guided by the three issues formulated by the appellant, duly subscribed to by the 1st respondent, though slightly modified for convenience.
Issue One.
Whether this action falls within the definition of a Pre-Election matter to warrant the application of Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 to the proceedings before the trial Court.
The learned counsel made reference to the ruling of the lower Court at pages 476-479 of the record of proceedings, to the effect that the action is a pre-election matter, and thereby proceeding to apply the proceedings of Sections (8), (9), (10), (11), (12), and (13) of the Constitution in granting abridgment of time against the appellant and deferring the consideration of the issue of jurisdiction until judgment. Going back history lane, learned counsel stated that prior to the year 2006 the nomination of a candidate was the domestic affair of the party. That in the year 2006, the party was restricted in substituting candidates to cogent and verifiable reasons. That in 2010, the restriction was further enlarged as spelt out in Section 87 (9) of the Act. That the said Section was repeated by Section 84(14) of the 2022 Act. That Section 85 (8), (9), (10), (11) and (14) reinforced the above sections, and that by Section 84(14) and Section 285 (14) the term pre-election has been pigeon-holed therein. Further making reference to case law, learned counsel pointed out that from column 18 of exhibit C1 on page 136 of the record, while the primary election in question was scheduled against the 28th-29th of May, 2022, 1st respondent filed his action in the 19th of April, 2022, thus clearly showing that he did not take part in the election. He maintains that the case is not a pre-election matter as to confer the benefits of Section 285 (14) of the Constitution on the 1st respondent and the trial Court wrong to so hold. Finally on the issue, learned counsel submitted that the fact as to whether a matter is a pre-election matter or not cannot be determined as a matter of consent, but from the originating summons before the Court. While urging the Court to resolve the issue in his favor, counsel urged the Court to hold that this is not a pre-election matter and to thereby set aside the decision of the lower Court.
In response to the submissions made, the learned counsel for the 1st respondent drew the Court’s attention to the provisions of Section 84 (14) of the Electoral Act 2022, contending that the section vests jurisdiction on the Federal High Court in respect of any complaint by an aspirant like the 1st respondent who complains that the provisions of the Electoral Act, the constitution and guidelines of the 2nd respondent have not been complied with. He made reference to paragraphs of the affidavit in support of the originating process contending that the 1st respondent is an aspirant and a presidential candidate for the presidency to contest the 2023 general elections on the platform of the 2nd respondent. He further referred to paragraphs of the affidavit in support of the originating summons and the reliefs sought, contending that it was clearly shown therein that the party failed neglected or refused to comply with the provisions of the Electoral Act, its constitution and guidelines in the selection, nomination and/or selection of its presidential candidate to the detriment of the 1st respondent. The complaint learned counsel argued falls within the category of a pre-election matter pursuant to the provisions of Sections 285 (9), (10), & (14)(a) of the Constitution. He argued that the 1st respondent who is an aspirant had no requirement placed on him to await the conduct of the primaries before complaining, but can seek redress on any threatened right and relied on AG Lagos vs. Eko Hotels Ltd (2006) 9SC 46 AT 96. He accordingly urged the Court to discountenance all the submissions of the appellant and to resolve the issue against the appellant.
Replying on points of law, learned counsel maintained that unless and until a matter is a pre-election matter within the contemplation of Section 285(14) of the Constitution which is in pari-materia with Section 84(14) of the Electoral Act 2022, the argument that 1st respondent was an aspirant cannot be maintained.
In resolving this issue, my understanding is that the issue resolves around whether the 1st respondent lacked the legal standing to sue in the first place, and as posited by the 1st respondent, what falls for resolution is whether the suit falls within the strict definition of a pre-election matter in warranting the application of Section 285 of the Constitution of the Federal Republic of Nigeria, as amended. Apparently, the two learned counsels appear to be on collision course with respect to whether the suit is a pre-election matter or not. Indeed, Section 84 (14) of the Electoral Act, 2022 makes provision as follows:
14. 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 have 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 for redress.
A careful examination of the provision shows that Section 87 (9) of the 2010 Electoral Act was replicated save for the fact that the High Court of the State or of the Federal Capital Territory is now denied jurisdiction.
Where a complaint is against the selection or nomination of a candidate of a political party for election, such a complaint which naturally arises from incidences prior to the election proper is termed a pre-election matter, which term, (pre- election matter) has been recognized and given meaning under Section 84 (14) of the Electoral Act and the Constitution to mean:
i. 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 the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
ii. 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
iii. 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.
The pertinent question which must be answered in the resolution of this issue is, whether the 1st respondent had the necessary locus to have instituted the case before the lower Court in view of the state of the law. This question though weighty, appears to have been posed and attended to in a plethora of cases by the highest Court of the land as well as this Court. For instance, Ogunbiyi JSC, in the case of Ukachukwu vs. PDP (2014) 17NWLR (pt. 1435) 134 AT 210-202, it was held that:
“On a critical analysis of the provision of Section 87(9) of the Electoral Act, (which is word for word with the provisions of Section 285 (14) of the Constitution, and Section 84 (14) of the 2022 Electoral Act), the following salient conditions are necessary and ought to be fulfilled contingent to bringing an action there under the section.
i. There must first have been a primary for the selection or nomination of candidate by a political party;
ii. That the exercise for the primary must have been in respect of an election;
iii. The complainant must be an aspirant who ought to have taken part in the political party’s primaries; and
iv. That the political party designate did not comply with a provision of the Electoral Act or its political guidelines for the selection done.
Restating the position further, Kekere-Ekun JSC, pointed out that:
“…a complaint under Section 87 (9) of the Electoral Act falls within a very narrow compass. The complainant must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party”
See also PDP vs. Sylva (2012) 13 NWLR (pt. 1316) 85 AT 148, Emenike vs. PDP (2011) LPELR-19752 (CA).
The Apex Court recently in the case of Anyakorah vs. PDP (2022) LPELR-56876 (SC) defined a pre-election matter to mean a cause or action which predates and does not contain any complaint against the actual conduct of the election. A pre-election suit therefore according to the Apex Court is tied to Section 285 (14) of the Constitution. In the said decision, the Court looked at the circumstance, similar to that forming the grouse of the plaintiffs, who had paid for nomination forms to participate in the ward congresses, but were stopped by the party officials from taking part in the exercise, leading to their being disenfranchised, and thereby approached the trial Court for redress, the Apex Court agreed with the learned counsel for the respondent that the suit does not come under Section 285 of the 1999 Constitution and therefore not a pre-election matter. In other words, it is the state of the law that for a complainant to qualify as an aspirant within the contemplation of Section 285 (14) of the Constitution, he must have participated in the primary elections being complained about. See Ibezim vs. Ararume & Ors (2022) LPELR-56936 (CA), Gagarawa & Ors vs. PDP (2022) LPELR-56674 (CA), Abdul vs. Shekwolo (2022) LPELR-56682 (CA).
Also on the issue, the apex Court in the case of Senator Ugochukwu Uba vs. Valentine Ozigbo & Ors (2021) LPELR-56672 (SC), per Okoro JSC, had maintained its position by holding that:
“Before a candidate for the primaries can invoke the provisions of Section 87 (9) of the Electoral Act 2010 as amended, and thus be imbued with the locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form was screened and cleared to participate in the primaries, but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87(9) of the Electoral Act… let me state emphatically that for a candidates complaint to come within the narrow compass of Section 87(9) of the Electoral Act 2010, the aspirant must show to the Court that the National Executive Committee of the political party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election. An aspirant who though was cleared to participate in the primary election decides to stage a factional primary election does so at his own peril as he is on a frolic of his own. See, Daniel vs. INEC (2015) 9 NWLR (pt. 1463) 152.
Relating to the case at hand, there is no disputing the fact that the 1st respondent did not participate in the primary election scheduled by the 2nd respondent on the 28th-29th day of May, 2022 before approaching the lower Court on the 19th of April, 2022. That being so, the learned counsel for the appellant would be correct asserting that the failure of the 1st respondent to establish before the lower Court that a primary election was conducted by the 2nd respondent in which he was a participant robbed him of the locus standi to complain. In the event, it is vivid, as argued that jurisdiction being fundamental, all the Court needs to do is to scrutinize the statement of claim at the lower Court to determine whether this Court had jurisdiction. See Odom vs. PDP (2015) 6 NWLR (pt. 1456) 527, and being a matter of substantive law, no litigant can confer jurisdiction on a Court, where same is lacking, nor can the Court itself assume jurisdiction in the interest of justice or by misconstruing the statute or the law. See PDP vs. Okorocha (2012) 15 NWLR 205, African Newspapers of Nigeria Ltd vs. FRN (1985) 2NWLR (pt. 6) 137.
The argument posited by the 1st respondent’s counsel to the effect that the litigants had agreed that the matter is a pre-trial matter is not supported by law, and pursuant to all the deductions made and the case law cited, I cannot but agree with the appellant that the action before the lower Court does not and cannot fall within the definition of a pre-election matter to which Section 285 of the Constitution of the Federal Republic of Nigeria ought to have application and I so hold. This issue is accordingly resolved in favor of the appellant.
Issue Two.
Whether the learned trial Judge was right to grant the orders for abridgment of time when he had no jurisdiction to entertain this action as all the conditions precedent for the exercise of the said jurisdiction had not been met by the 1st respondent.
Submitting on the issue, learned counsel posits that jurisdiction is a threshold issue touching on the competence of the Court to hear and to determine the matter or cause before it. He argued that the conduct of the primary election by the party is a condition precedent and cited a host of cases in that regard. He submits that since the 1st respondent had not participated in the primaries as shown by exhibit C1 on page 136 of the record, he lacked the locus to institute the action and the Court robbed of the jurisdiction to entertain the action.
In response, the learned counsel for the respondent on the issue adopted his argument in respect of the 1st issue canvassed and urged the Court to discountenance the appellant’s arguments. He further argued that even where the jurisdiction of the Court is challenged, the Court can still entertain applications for extension of time to file processes, and to grant orders in facilitating the hearing and determination of the issue of jurisdiction. This is more so as by Section 285 (8) of the Constitution, the consideration of the issue of jurisdiction can be reserved to final judgment.
The issue herein turns on whether the trial Court had jurisdiction to entertain the matter before it in view of the circumstance of the case. I have no difficulty in inferring from the circumstance of the case, that the lower Court went about abridging time in tune with the wrong assumption that the suit before him was a pre-primary suit and for which the provisions of Section 285 (8)-(12) are applicable. Let me reiterate that where a party who did not participate in a primary election in the nomination process as in the present case, no Court will have jurisdiction to entertain a complaint on the nomination of the candidate. That was the position of the Supreme Court in Ardo vs. Nyako (2014) 10 NWLR (pt. 1416) 591 AT 634, and even if we are to go by the argument of the 1st respondent that his complaint is anchored on the issue of zoning, as against the conduct of the nomination or selection of the candidate for the office of the President under the platform of the 2nd respondent, the contention cannot hold in view of the position of the law expressed in the cases of Ardo vs. Nyako (supra):
“This Court in a plethora of cases has said that pre- primary matters are within the domestic and internal affairs of the PDP, which no Court has the jurisdiction to entertain. The jurisdiction of the Court in party affairs is limited to where the complaint is about the conduct of the primaries for the selection or nomination of a candidate”.
Even then, the locus or standing to so sue is limited to an aspirant who took part in the primary election. As earlier stated, the 1st respondent having not participated in the primaries of the 2nd respondent, he cannot be said to have the locus standing to sue, and the Court without the requisite jurisdiction to have entertained and to grant orders the way it did. I agree that the orders made by the lower Court were not properly made, and accordingly resolve the issue in favor of the appellant.
Issue Three.
Whether the learned trial Judge did not breach the appellant’s right to fair hearing when he determined at the interlocutory stage, that the 1st respondent is an aspirant in addition to holding that this is a pre-election matter when the issues are matters submitted for determination at the main trial of the action.
This issue seeks to question the holding by the lower Court in its ruling at pages 476-477 of the record. Learned counsel alluded to the originating summons filed by the 1st respondent together with the affidavit and counter affidavit, and referred specifically to paragraph 17 of the plaintiff’s originating summons and the response thereto by paragraph 4.03 of the preliminary objection filed on the 10th of May, 2022, and argued that parties having joined issues on whether the 1st respondent was an aspirant or not, the Court without a hearing on the issue, went ahead to find that the 1st respondent was an aspirant, and thereby prejudged one of the issues prejudicial to the appellant without a hearing. He referred to the case of Cil Risk & Asset Management Ltd vs. Ekiti State Government (2020) 12 NWLR (pt. 1738) 203, on the need to avoid deciding cases at the preliminary stage, and leveraging on Olumesan vs. Ogundepo (1996) 2 NWLR (pt. 433) 628, urged the Court to resolve the issue in favor of the appellant and to nullify the entire proceedings.
Learned counsel for the respondent while disputing that there was any prejudging or prejudicing the case of the appellant as alleged, contended that the passage under reference, wherein the Court described the 1st respondent as an aspirant was an introductory general statement made in passing in the course of the ruling and not a specific finding of fact.
I have treated this issue under the preliminary objection to the conclusion that parties having joined issues on whether 1st respondent qualifies as an aspirant, the statement made by the trial Court in summing up his ruling and upon which he proceeded to make the orders prayed for is condemnable on the basis that the Court cannot make positive pronouncements touching on the substantive question to be resolved at an interlocutory stage and before hearing all the parties. All decisions of the Court must be based on findings of fact demonstrated by the parties before it, and where the Court fails to allow the parties to so demonstrate their positions before reaching a decision one way or the other, a breach of the fundamental principle of fair hearing would be said to have occasioned, the consequence of which is that the trial is vitiated. I am not at all agreeable to the assertion made by the 1st respondent that the trial Court’s pronouncement was that made in passing, and for which it cannot be termed as a decision properly so called. I also resolve this issue in favor of the appellant.
Hence having resolved all the three issues in favor of the appellant, the net result is that this appeal is meritorious and thereby allowed and having also found that the lower Court was without jurisdiction to have entertained the suit before it in the first place, and thereby made null orders, the entire proceedings are hereby set aside, and the case struck out for want of jurisdiction.
Appellant is awarded costs of N200,000.00 against the 1st respondent.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Hamma Akawu Barka, JCA, gave me the privilege of reading in advance, the draft of the judgment just delivered.
My learned brother has comprehensively considered all the issues that came up for determination in the preliminary objection and the substantive appeal. Clearly, the issues raised in the preliminary objection have no merit. The preliminary objection is therefore discountenanced and accordingly dismissed.
On the substantive appeal, I agree with my learned brother that the issues raised by the 1st respondent at the trial Court relate solely to the internal arrangement of the 2nd Respondent. It did not relate to any primary election conducted by the 2nd respondent and therefore, does not qualify as a pre-election matter or cause within the ambit of Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
On that note, I agree with my learned brother that in the circumstances, the learned trial Judge of the Federal High Court lacked the jurisdiction to entertain the suit. Consequently, the proceeding conducted and order(s) made thereon amounted to a nullity. Such proceeding and order(s) made thereon, are hereby set aside. The Originating Summons filed on the 19th day of April, 2022 is accordingly struck out.
I abide by the order on costs.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, HAMMA AKAWU BARKA JCA just delivered. I agree with his conclusions that the appeal is meritorious and it is accordingly allowed.
I abide by the consequential orders.
Appearances:
A.M. Aliyu, SAN, with him, H.O. Umar. For Appellant(s)
Paul Erokoro, SAN, with him, Dike Udenne, and Michael Ajara, – for 1st Respondent
M.A. Magaji, SAN, with him, Okechukwu Edeze, and Uko Ede, – for 2nd Respondent
U.O. Ukairo, with him, Kalu Kalu Agu, – for 3rd Respondent
Abdulhamid Mohammed, SAN, with him, D.E. Abu, and Abdulrahman, – for 5th Respondent. For Respondent(s)
