UMAR ISA v. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS (2013)

UMAR ISA v. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS

(2013)LCN/6443(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of July, 2013

CA/K/11/2012

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

UMAR ISA Appellant(s)

AND

1. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
2. CHIEF TONY MOMOH (NATIONAL CHAIRMAN OF CPC)
3. NATIONAL EXECUTIVE COMMITTEE OF CONGRESS FOR PROGRESSIVE CHANGE
4. BOARD OF TRUSTEES (CPC)
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
6. RUFAI AHMED CHANCHANGI Respondent(s)

RATIO

GUIDELINES TO SEEK REDRESS FOR NON-COMPLIANCE WITH THE ELECTORAL ACT ON THE SELECTION OR NOMINATION OF ELECTORAL CANDIDATES

Further, in Emenike v. P.D.P (2012) 12 NWLR Part 1315 page 556 at 599-600, the Supreme Court, Per Chukwuma-Eneh, J.S.C., expressed thus;
“The Electoral Act, 2010 (as amended) as it appears in the area of choice of candidates for elective offices has in a way affected that principle of law by providing that an aspirant, in other words, one who has sufficient interest in the matter in dispute and in this instance has complained about the non-compliance with the party’s guidelines in the selection or nomination of candidates for the party primaries can raise an action seeking from the Court a redress against his political party – see Section 87(9) (infra). For ease of reference Section 87(1) and (9) crucial to this matter provides as follows:

“87(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.

(9) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a Political Party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.” PER ORJI-ABADUA, J.C.A.

WHETHER OR NOT THE HIGH COURT OR FEDERAL HIGH COURT HAS THE JURISDICTION TO ENTERTAIN ELECTION PETITIONS

THERESA NGOLIKA ORJI-ABADUA, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Kaduna Division delivered on the 25th July, 2011 in suit No. FHC/KD/CSP30/2011. The record of this appeal reveals that by the Originating Summons dated the 14th February, 2011 and issued on the 17th February, 2011, the Appellant and three other persons commenced legal proceedings against the Respondents by seeking thus:

“1. A declaration that the conduct of the 1st Defendant purported Primary Election for the Federal House of Representatives, Kaduna South Federal Constituency on the 11th, 12th, and 14th January, 2011 is null and void having been carried out in breach of the mandatory provisions of the Electoral Act, 2010 and the Constitution of the 1st Defendant, 2010 and guidelines for primary election of the 1st Defendant 2010.

2. An order setting aside the purported election of the 6th Defendant as the candidate of the Federal House of Representatives, Kaduna South Federal Constituency of the 1st Defendant for the purpose of the general elections.

3. An Order directing the 5th Defendant to decline to accept the nomination and or reject the nomination of the 6th Defendant as the candidate for the Federal House of Representatives, Kaduna South Federal Constituency of the 1st Defendant in Kaduna South pursuant to the purported primary election of the 1st Defendant on the 11th, 12th, and 14th January, 2011 for the purpose of the general elections.

4. An order directing the conduct of Federal House of Representatives, Kaduna South Federal constituency primary elections of the 1st Defendant in Kaduna South in strict compliance with the Electoral Act, 2010 and the constitution of the 1st Defendant 2010 and guidelines for primary election of the 1st Defendant 2010 with same aspirants who duly purchased the nomination forms of the 1st Defendant including the Plaintiffs.”

The lone question posed by them for determination therein is; “whether the purported conduct of Federal House of Representatives, Kaduna South Federal Constituency Primary Election of the 1st Defendant for the election of the Federal House of Representative flag bearer of the 1st Defendant in Kaduna South which was purportedly conducted on 11th, 12th, and 14th January, 2011 wherein the 6th Defendant was said to have emerged is valid having regard to the fundamental breaches of the provisions of the Electoral Act, 2010 the 1st Defendant constitution 2010 and Electoral guidelines for primary elections , 2010 of the 1st Defendant in the processes leading to and during the conduct of the said Federal House of Representatives, Kaduna South Federal Constituency primary election of the 1st Defendant in Kaduna South.”

The Originating Summons was supported by an affidavit of 30 paragraphs deposed to by one Sadisu Ibrahim Esq.; one of the Counsel in Messrs Al-lhasan Chambers representing the Plaintiffs. The facts asserted therein were buttressed by several documentary evidence annexed thereto as Exhibits ‘1’ – ’18’. A written address in support of the Originating Summons was filed along with the same. The 1st, 3rd and 4th Respondents filed a counter-affidavit of four paragraphs sworn to on 4/4/2011 by one Segun Taofio, a Litigation Secretary in the Chambers of Messrs Habeeb & Co. which had attached to it, Exhibits “A”, “A1”-“18”. Also filed along with their counter-affidavit was the Written Address of their Counsel in support of their counter-assertions. The 6th Defendant, also, filed a Counter-affidavit of 14 paragraphs sworn to by himself on the 14th March, 2011 which was supported by one documentary evidence marked as Exhibit ‘A’. A written address was filed by its Counsel, O. I. Habeeb Esq. The Plaintiffs, including the Appellant, filed a Further and Better Affidavit of six paragraphs in reply to the 1st, 3rd and 4th Defendants’ counter-affidavit together with a written Reply to their written Address dated 1/4/11.
However, a Preliminary Objection dated 6/6/2011 was filed on behalf of the 5th Defendant seeking for an order declaring that the 5th Defendant was not a necessary party to the suit. The objection was supported by an affidavit of fourteen paragraphs. The legal points rationalizing the 5th Defendants contention were articulated in the written address of its learned Counsel; Mrs. Julis Utuh, and A. I. Lemu Esq. Furthermore, by a Motion on Notice dated the same 6/6/2011, the 5th Defendant’s Counsel applied for an extension of time for the 5th Defendant to file its counter-affidavit to the Originating Summons out of time and for an order deeming the fourteen paragraph counter-affidavit dated the same 6/6/2011, already filed as duly filed and served. A Further and Better Affidavit of five paragraphs was filed by the Plaintiffs in response to the 6th Defendant’s counter-affidavit with Exhibits ‘D’ and ‘D1′ annexed thereto. The Plaintiffs’ Reply to the Written Address of the 6th Respondent is dated the 14th March, 2011. The Plaintiffs also filed a Counter-affidavit of five paragraphs sworn to on the 13th June, 2011, to the 5th Respondent’s Preliminary Objection dated 6/6/2011 together with a Written Address dated the same day. The 6th Defendant, also, filed a Motion on Notice dated the 4th March, 2011 praying the lower Court for an order striking out the suit on the ground that the Plaintiffs have not exhausted the internal remedy for the resolution of the instant dispute as required by the relevant Rules and Guidelines of the 1st Defendant, secondly; the action is premature and therefore incompetent, and thirdly, that the Court lacked the jurisdiction to entertain the suit. The Plaintiffs, then, registered their strong opposition to the said Motion via their counter-affidavit of six paragraphs sworn to by one Munirat Muhammed Ahmed, a Litigation Secretary in the Chambers of Messrs Al-lhasan, Counsel for the Plaintiffs. A written address was equally filed on their behalf in reply to the submissions made on behalf of the 6th Defendant in support of the said Motion. All the proceedings in respect of all the processes filed were heard together by the trial Court, at the end of which it expressed thus:

“I have held elsewhere in this judgment that the suit was improperly commenced and that the appropriate consequential order would have been to convert the suit and request parties to file pleadings. However, the Court has found as a fact that the Plaintiffs did not exhaust the internal remedies provided under the 1st Defendant’s Guidelines which means that the action is incompetent. That being the case, the jurisdiction of this Court has not been activated. Consequently, the suit is hereby struck out.”

The Appellant was distraught with the said decision that he, alone, appealed against the same by a Notice of Appeal dated the 21st September, 2011 which was pivoted on five grounds of appeal signed by his Counsel, Chief Chris A. Ekhasemomhe. However, this Court noticed in the processes filed before it that the Appellant’s Brief of Argument was prepared by Dr. A. Amuda-Kannike, who incidentally adopted the said Brief at the hearing of this appeal. In the said Appellant’s Brief, only two issues were distilled from the five grounds of appeal raised by him in his Notice of Appeal. The issues are thus:

“1. Whether in view of the provision of Electoral Act, 2010 as amended, the learned trial Judge was correct when he struck out this suit on the ground that the 1st Respondent’s guidelines have not been complied with by the Appellant before approaching the Court for redress in this matter? This issue was distilled from grounds 1 and 2 of the grounds of Appeal.

2. Whether the striking out of the case by the learned trial Judge was not based on technicalities which is no longer relevant in Law? This issue was distilled from grounds 3, 4 and 5 of the grounds of appeal.”

The 1st – 4th Respondents in their Brief of Argument, also, formulated two issues for determination by this Court which they stated as follows:

“1. Whether the learned trial Judge was wrong when he held that the Appellant failed to activate the jurisdiction of the court without his exhaustion of the internal remedies provided by the Guidelines laid down by the 1st Respondent for conduct of its Primary Election?

2. Whether the learned trial court’s decision in declining jurisdiction to hear and determine the case at the lower Court was based on technicalities?”

The 6th Respondent, in turn, framed one issue only for consideration by this Court, thus:

“Whether the trial court was justified in holding that the Appellant did not exhaust the internal remedies provided under the 1st Respondent’s guidelines before the institution of the action at the trial Court, regard being heard to the State of evidence before the trial Court, the relevant provisions of the Electoral Act 2010 (as amended) and the guidelines of the 1st Respondent.”

In the Brief of Argument prepared by Dr. A. Amuda-Kannike, on behalf of the Appellant, it was explained that issue No. 1 is basically on the interpretation of section 87(9) of the Electoral Act, 2010 (as amended). Learned Counsel submitted that section 87(9) of the Electoral Act (as amended) subordinates the provisions of the 1st Respondent’s Guidelines to the provisions of the Act, meaning that the Guidelines cannot override the provisions of the Act of the National Assembly nor can the Guidelines stop the Appellant from approaching the Court. Counsel turned to the decisions in Nigeria Deposit Insurance Corporation v. Okem Enterprises Limited (2004) All FWLR Part 210 page 1176 at 1232; A.G., Federation & 2 Ors v. Alhaji Atiku Abubakar (2007) All FWLR Part 389 page 1264 at 1298 parargraphs B-C; Total Nigeria Plc v. Chief A. N. Morkah (2003) FWLR Part 148 page 1343 at 1363 paragraph A; Kotoye v. Saraki (1994) 7 NWLR Part 357 page 414 at 478; and Emesim v. Nwachukwu (1999) 6 NWLR Part 605 page 154; where the word ‘notwithstanding’ has been interpreted, and, submitted that since the word is a term of exclusion, it follows that the Guidelines of the 1st Respondent are excluded and even if the terms of the said Guidelines have not been conformed with, the non-compliance notwithstanding.

He stated that the wording of section 87(9) of the Electoral Act, 2010 (as amended) is clear and unambiguous and effect should be given to it. He contends that if the lawmakers had intended that the Guidelines should be unhampered, they ought to have stated so. He cited Udo v. Orthopaedic Hospitals Management Board (1993) 7 S.C.N.J. Part 2 page 436; and African Newspaper Nig. Ltd v. Federal Republic of Nigeria (1985) 2 NWLR Part 6 page 137 in support. Learned Counsel further drew attention to section 36(1) and (2) of the 1999 Constitution (as amended) and the case of Ugwu v. Ararume (2007) 12 NWLR Part 1048 page 1365 at pages 450-451 paragraphs G-A and emphasized on the constitutionally guaranteed right of access to Courts, and, further contended that Article 8 of the 1st Respondent’s Guidelines did not provide for any condition precedent but, if at all it did, it would have amounted to denial of access to Court. He further referred to the Chambers Dictionary, 10th Edition, 2007 page 1031; Black’s Law Dictionary 8th Edition, 2004 page 1094 and Oxford Advanced Learner’s Dictionary of Current English A.S. Hornby, 8th Edition, 2000 on the definition of the word ‘notwithstanding’ and submitted that the learned trial Judge ought not to have delivered the judgment against the Appellant. He then urged that issue No. 1 be resolved in favour of the Appellant.
Submitting in respect of issue No. 2, learned Counsel stressed that the striking out of the Appellant’s case was totally based on technicalities. Learned Counsel leaned on the decisions in Ibrahim Ohida v. Mil Admin Kogi State (2000) FWLR Part 12 page 2107 at 2111; Kehinde v. Ogunbunmi (1967) 1 All NLR Page 305; Hon. Ekpeyong Onoyom v. Hon. Gabriel I. Egari (1999) 5 NWLR Part 503 page 420; Olaseinde v. Federal Housing Authority (1999) 9 NWLR Part 619 page 452; and U.T.C. Nig Ltd v. Pamotei (1989) 4 NWLR Part 103 page 244 and submitted that the law has shifted from strict adherence to technicalities to doing substantial justice. He argued that a judge is not allowed to strike out a case or set aside an order because he believes one of the parties must fail for non-compliance with a procedural step or not appearing in Court. He stated that technical judgment must never be allowed to tie the hands of any Court in ensuring that the principles of fair hearing are strictly adhered to. However, to buttress his assertions that the Appellant complied with the Party’s Guidelines as required, he relied on Exhibit “C2” titled ‘Report by the Special Committee To Look Into 1st Respondent’s Primary Election In Kaduna State,’ i.e., the Report of Ango-Abdullahi Committee. He referred to page 241 of the record, line 15 where the Appellant’s Constituency was mentioned, and, the acknowledgment by the Committee that various Petitions including the Appellant’s Petition were forwarded to it, and that of the 1st – 4th Respondents. He stressed that that was never disputed by the Respondent. That being the case, the question then are not, whether the Petitions got to the appropriate officer within 48 hours or not, and, whether it was wrongly addressed, but, whether there were Petitions/Letters concerning the election and, whether such Petitions were rejected for non-compliance. He strongly asserted that once the Letters/Petitions were received and not rejected, such as it was in the Appellant’s case, and they formed part of the decision of the Committee as stated at pages 239-241 of the record of appeal, it is too late in the day for the Respondents to argue that the Appellant failed to comply with the 1st Respondent’s Guidelines or Conditions. He contended that by the purported election spreading out for voting for about three days, the Appellant and the rest Plaintiffs had about 96 hours for the purpose of complaining and not 48 hours. He referred to page 232 lines 23 – 29 of the record where the 1st, 3rd and 4th Respondents agreed that the purported election took place for three days. He contended that 48 hours would have arisen where election had taken place but, in the instant matter, election did not take place.

Learned Counsel submitted that this Court has an unfettered power to declare the seat of the 6th Respondent vacant in the House of Representatives and order a fresh primary between the Appellant only and the 6th Respondent.

He, however submitted that since all the documents which are necessary to determining the case is before this Court, this Court can invoke the provisions of section 15 of the Court of Appeal Act, 2004 to determine the matter on its merit, and, award the reliefs sought by the Appellant in the Originating Summons. He cited the cases of Amaechi v. I.N.E.C. (2008) 5 NWLR Part 1080 at page 227 ESP at pages 3-15-316, paragraphs B-D; Packer v. Packer (1954) P. 15 at 22, per Denning M. R.; and Engineering Enterprise Contractor Company of Nigeria v. Attorney-General of Kaduna State (1987) 1 NSCC page 601 at 613 or 1987 2 NWLR Part 57 page 381 and urged this Court not to give room to technicalities as that is what the Respondents wanted.

Learned Counsel further explained that it was a delegate election the 1st Respondent opted for, meaning that not all card carrying members can vote. Being an indirect election, it follows that each of the Kaduna South Federal Constituency Ward would not have more than 74 delegates with 13 Wards and the result in each of the Wards in the Federal Constituency should not exceed 74 votes. It was stated that the results produced by the 1st – 3rd and 4th Respondents exceeded 74 votes from each ward, meaning that there was no compliance with Party Guidelines and Electoral Act. He referred to page 156 lines 15-18, 160 lines 14-16 and 22-35 and, 161 lines 1-5. Learned Counsel argued that there was no delegate election as prescribed by section 87 (1), (2) and (4)(c) (i) of the Electoral Act, 2010 (as amended) which stated that a Political Party must hold special congresses in the Federal Constituency with delegates. It was further argued that the Appellant was denied the opportunity to participate since there was no delegate election. Learned Counsel referred to pages 234-241 and 242 of the record and submitted that it was only the number of registered members of the 1st Respondent in the Wards and, not the numbers of the delegates from the Wards were shown, and that the purported results are the total number of accredited voters in the Ward, not the number of accredited delegate voters in the Ward. It means, therefore, that those who voted were not Ward delegates as required by the C.P.C. Guidelines which opted for delegate primary election. He stressed that there is a clear difference between direct primary election and indirect primary election which requires voting by delegates. He contended that the purported primary election which produced the 6th Respondent having not been conducted through indirect delegate election ought to be declared null and void, and, the same having prejudiced the right and interest of the Appellant in the primary election. He further made reference to Exhibit “C2”, the report of Ango Abdullahi Committee, the results at pages 234 – 240 – 242 of the record where discrepancies in the number of aspirants manifested. Learned Counsel further made reference to report of the INEC Monitoring Team, at page 398 lines 5-14 and 399 lines 1-3, which indicated that there was no election in Kaduna South, showing there was a breach of section 86(1) of the Electoral Act, 2010 (as amended). He concluded that the entire results of the purported primary election were fraught with irregularities, non-compliance with the CPC Guidelines and the provisions of the Electoral Act, 2010 (as amended).

Learned Counsel for the 1st to 4th Respondents, Chief Okoi O. Obono-Obla, in their Brief of Argument submitted that the decision of the lower Court touching on its lack of jurisdiction to deal with the matter is unimpeachable. He argued that the Appellant as a member of the 1st Respondent, is bound by the 1st Respondent’s Constitution and Guidelines which stipulated that election petition arising out of the 1st Respondent’s primary election must first be made to the relevant nomination sub-committee and copied to the National Secretary of the Party to reach him not later than 48 hours after the conduct of the primaries. He argued there was no evidence the Appellant complied with the laid down procedure before filing the suit at the lower Court. He relied on Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6 and submitted that where there are mandatory provisions in the Guidelines/Constitution as to how an aggrieved member is to pursue a remedy for the perceived wrong, the same must be complied with, therefore, where a condition precedent for commenced of an action in Court has not been complied with, such Court will not have jurisdiction to entertain the suit. He stressed that the Appellant’s efforts to invoke section 36(1) and (2) of the 1999 Constitution of Nigeria (as amended) is unfounded and in vain, because his right to fair hearing was never infringed upon as he did not initiate the case by due process. Learned Counsel then cited the cases of Owoseni v. Faloye (2005) Vol. 132 LRCN 2786 at 2823, per Oguntade, J.S.C.; West African Post-Graduate Medical College v. Okojie (2004) 2 NWLR Part 857 page 232; Akintemi v. Onwumechili (1985) NWLR Part 1 page 68; Ilorin v. Idowu Oluwadare (2006) 14 NWLR Part 1000 page 751; and Shell Petroleum Development Company of Nigeria Limited v. Monday Amadi (2010) 13 NWLR Part 1210 page 83 and submitted that paragraphs 1 and 2 under the heading “Election Petition” of the 1st Respondent’s Guidelines did not oust the jurisdiction of the Court or restrict the right of the Appellant to institute an action, rather it sought for the exploration of internal dispute resolution mechanisms before approaching the Court. He contended that before a Court can assume jurisdiction over the case, the Appellant must first exhaust all the remedies or the legal line of action for the determination of an issue provided for in the Rules or Laws binding members of the Political Party before suing. Learned Counsel contended that if the interpretation given to section 87(9) of the Electoral Act by the Appellant is accepted by this Court that would lead to a flood gate of litigation and the defeat of the freedom of contract.

He stated that the Court cannot get itself enmeshed in any controversy arising out of the exercise of the right of freedom of contract after the parties have agreed that arbitration or any conflict arising out of the contract should first be settled before the involvement of the Court. He stated that the lower Court was right when it struck out the matter for want of jurisdiction.

With regard to issue No. 2, it was argued on behalf of the 1st – 4th Respondents that the decision of the trial Court was not based on technicalities but rather on the findings of the Court that the Appellant failed to comply with the Guidelines of the 1st Respondent in presenting his complaints, that the Appellant’s case was a contentious and hostile proceeding and ought not to have been initiated by Originating Summons, and that latter aspect of the lower Court’s finding was never appealed against. He made reference to Opara v. Dowel Schlumberger Nigeria Ltd and Anor., Lewis Opara v. Dowel Schlumberger Nigeria Ltd. (2006) 15 NWLR Part 1002 page 342 and submitted that it is untenable for the Appellant to urge this Court to invoke the provisions of section 16 of the Court of Appeal Act, 2004 when the lower Court had held that the suit was incompetent which was not appealed against. He then, invited this Court to dismiss this appeal.
Arguing on behalf of the 6th Respondent, it was stated by O. I. Habeeb Esq., his learned Counsel that this Court lacks the competence and jurisdiction to entertain this appeal on the ground that all the grounds of appeal contained in the Appellant’s Notice of Appeal and filed on
21/9/2011 are defective and incompetent. He contended that ground 1, particulars (a) and (b), and grounds 2 and 5 of the Notice of Appeal are argumentative, narrative, conclusive and verbose, therefore, they violated the provisions of Orders 6 Rules 2 (3) and 3 of the Court of Appeal Rules, 2011. Counsel referred to the cases of Kalu v. Uzor (2006) 8 NWLR Part 981 page 66 at 85 paragraphs C – D and Kachia v. Yazid (2001) 17 NWLR Part 742 pages 431 at 448 paragraphs A – B and 451 paragraphs A – B where it was held that where the particulars of ground of appeal are argumentative the ground of appeal ought to be struck out for being defective. He further relied on Okudo v. I.G.P (1998) 1 NWLR Part 533 page 335 at 340 paragraphs E-F; and Balonwu v. Obi (2007) 5 NWLR Part 1028 page 488 at 529 paragraph B – E in support.
Learned Counsel further reproduced grounds one and three and argued they were duplicated, i.e., that ground 3 is a duplicate of ground No. 1 of the Appellant’s Notice of Appeal. He then made reference to Mark v. Abubakar (2009) 2 NWLR Part 1124 page 79 at 134 paragraph D; Garuba v. Omokhodion (2011) 15 NWLR Part 1269 page 145 at 177 paragraph C; Oloruntoba v. Abdul-Raheem (2009) 13 NWLR Part 1157 page 83 at 121 paragraphs B-C; and Owie v. Ighiwi (2005) 5 NWLR Part 917 page 184 at 217 paragraph B and urged this Court to strike out ground No. 3 for being a duplication of ground one of the Notice of Appeal. Counsel further submitted that grounds 4 and 5 did not emerge from the ratio decidendi of the judgment of the lower Court. He then stressed that the entire grounds 1-5 of the Appellant’s Notice of Appeal are defective and as such they should be struck out.

Then, submitting in respect of the lone issue propounded by the 6th Respondent, learned Counsel reproduced the contents of Article 8 of the 1st Respondent’s Guidelines and submitted that the Article is regarded as the internal mechanism for dispute resolution which every member of the 1st Respondent must exhaust before embarking on litigation in Court as it is a condition precedent to institution of an action. He made reference to the cases of Shekem v. Gobang (2009) 12 NWLR Part 1156 page 435 at 459 paragraph H and 460 paragraph A – D; Utur v. The Official Liquidator (2009) All FWLR Part 475 page 1775 at 1791 paragraphs D – E; Mbanefo v. Molokwu (2009) 11 NWLR Part 1153 page 431 at 455 paragraph E; Madukolum & Ors v. Nkemdilim (1962) N.S.C.C. 374 at 379 paragraphs 45 – 50 and 380 paragraph 5; and Lawal v. Oke (2001) 7 NWLR Part 711 page 88 at 106 paragraphs E – H and submitted that the requirement of exhaustion of internal remedy for dispute resolution is not tantamount to denial of access to Court as canvassed by the Appellant and it is not in conflict with the provisions of sections 1(3) and 36 of the 1999 Constitution of Federal Republic of Nigeria.

He submitted that Article 8 of the Guidelines of the 1st Respondent provides that before instituting any Court action on primary election, a complainant must afford the Party an opportunity to resolve the matter administratively through the Party’s internal dispute resolution mechanism. He cited the cases of Owoseni v. Faloye (2005) 14 NWLR Part 946 page 719 at 757 paragraphs B – D; Onafowokan v. Wema Bank Plc (2001) 12 NWLR Part 1260 page 24 at 53 paragraph H and 54 paragraphs A – C; Adams v. Umar (2009) 5 NWLR Part 1133 page 41 at 100 paragraphs D – H; Alamleyeseigha v. Igoniwari (No. 2) (2007) 7 NWLR Part 1034 page 524 at 589 paragraphs G – H, 590 paragraphs C – E; Gambari vs. Mamud (2010) 3 NWLR Part 1181 page 278 at 300 paragraphs A – H, 301 paragraphs A – C; Onyero v. Nwadike (2011) 18 NWLR Part 1279 page 954 at 980 paragraphs A – C; Onyemaizu v. Ojiako (2010) 4 NWLR Part 1185 page 504 at 527 paragraphs A-H, 528 paragraphs A – C; Lado v. CPC (2011) 18 NWLR Part 1279 page 493 at 725 paragraphs E – F; and Onuoha v. Okafor (1983) 2 SCNLR 244; (1983) NSCC 494 and urged this Court to disregard the Appellant’s contention on Exhibit “C2” as the said Exhibit did not indicate whether the Nomination Sub-Committee of the 1st Respondent received the Petition of the Appellant.

He further urged this Court not to invoke its jurisdiction as stipulated in section 15 of the Court of Appeal Act principally because the lower Court did not determine any issue as to whether there was primary election of the 1st Respondent or not. Learned Counsel equally contended that the argument tendered by the Appellant at paragraphs 4.39(a) – 4.49 of his Brief of Argument raked up fresh issues in respect of which no leave of this Court was obtained by the Appellant to argue same, and, too, they are not covered by the provisions of section 87(9) (10) of the Electoral Act, 2010 (as amended). He then urged that the 6th Respondent’s lone issue be resolved in his favour.

In the Appellant’s Reply Brief, his learned Counsel, Dr. A. Amuda-Kannike sought for assistance in the definitions of the words “argumentative”, “argue”, “argumentation”, “narrative”, “argument”, “narration” from Oxford Advanced Learner’s Dictionary for International Students, 8th Edition and Black’s Law Dictionary, 8th Edition and strongly pointed out that none of the Appellant’s grounds of Appeal can be used to support a theory, an action nor an idea. He further stated that the Appellant’s ground 1 is not repetitive of his ground 3. He cited the cases of Aregbeshola v. Oyinlola (2011) All FWLR Part 570 page 1290 at page 1297 ratio 2 and page 1298 Esp at pages 1211-1422 paragraphs H-B; S.C.O.A Plc v. Alh. Nasiru Moh & Anor (2004) 3 NWLR Part 862 page 20 at 25 ratio 8 Esp at page 33 paragraphs E – F and S.C.O.A Plc v. Alh Nasiri Moh & Anor (2004) 3 NWLR part 862 page 20 at 23 ratio 2 Esp at page 40-41 and submitted that once a ground of appeal is succinctly couched and the parties understand the meaning, such a ground will not be incompetent merely because it is technically defective. Learned Counsel further reiterated his argument in respect of the substantive appeal and urged that the appeal be allowed.

Regarding the Preliminary Objection raised by the 6th Respondent herein; I must observe as stated by the Supreme Court in Oloruntoba-Oju v. Abdul-Raheem (supra) that a good ground of appeal must be concise, elegantly drafted and straight to the point so that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading the particulars. The ground of appeal should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular, the ground of appeal is defective and it will be struck out.
It is my considered view that in the instant appeal, grounds one, two, three, four and five of the Appellant’s Notice of Appeal, clearly acquainted the Respondents herein with the issues involved in the appeal. The Supreme Court stated that once that purpose is achieved, a ground of appeal cannot be seen as defective together with any issue formulated therefrom. It is therefore in the light of the above that I find the preliminary Objection raised by the 6th Respondent lacking in merit and ought to be overruled. Accordingly, it is hereby overruled.

I have given an anxious consideration to the two issues respectively phrased by the Appellant and the 1st – 4th Respondents, and, the lone one postulated by the 6th Respondent. They all, have more or less the same connotation, but, somewhat framed in different forms. I would for broader consideration and elucidation of the questions lean towards the issues distilled by the Appellant in his Brief of Argument. Further, since the Appellant’s second issue is an off-shoot of the first one, or that they are intertwined, they would, most appropriately, be determined together.

The nub of the Appellant’s contention is that the provisions of section 87(9) of the Electoral Act, 2010 (as amended) were not given adequate consideration by the lower Court before it sledge hammered that the Appellant did not exhaust the internal remedies provided under the 1st Respondent’s Guidelines thereby robbing the Court of the jurisdiction to entertain the suit.

I feel the fundamental thing right now is to grasp the contents of section 87(9) of the 2010 Electoral Act as amended, what they connote. The said section provides in a nutshell that:

“Notwithstanding the provisions of this Act or rules of a Political Party, an aspirant who complained that any of the provisions of the Act and the guidelines of a Political Party has not been complied with in the selection or nomination of a candidate of a Political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”

It is instructive to note that the proclamation in the said section began with the word “Notwithstanding,” which said word has been variously defined to include the words “despite”, “in spite of.” The Oxford Advanced Learner’s Dictionary defined it as meaning; “without being affected by something”, “despite something”. Dictionary.com also expressed it as “in spite of”, “without being fettered or prevented by.”

The words “in spite of” have also been defined as “in disregard or defiance of”. It seems clear the convergent opinion on the said word is that, regardless of the dictates of a Political Party’s Guidelines on the procedure for presentation of complaint about nomination of candidates, an aspirant who deprecates the conduct of the selection or nomination process of the party, that is to say, complaining that certain provisions of the Act or the Party’s Guidelines have not been complied with in the selection or nomination of a candidate of the party for election, has an option to apply to the Federal High Court or High Court of a State or FCT straight for redress without first going through the Party’s Guidelines for internal dispute presentation or resolution. By the provisions of section 87(9) of the 2010 Electoral Act (as amended), it is not mandatory that where situation mentioned therein exists, the complainant must first exhaust the procedures laid down in the Party’s Guidelines. The section says “may”, therefore, indicating that the aspirant has a choice to proceed to the Court without recourse to the Party’s Guidelines so long as his complaint bordered on non-compliance with the provisions of the Act or Guidelines in the Party’s selection or nominations of its candidates for election.
In the instant matter, it was stated that on 12/1/2011, all the stake holders for the supervision of the primary election were absent which necessitated the election being postponed to 14/1/2011. It was then alleged that on 14/1/2011, the election venues were marred with intimidation, violence, attacks and all sorts of thuggery which resulted to the injuries occasioned on Abu Sufuyan and Hassan Abdullahi. It was further alleged that on the said 14/1/2011, the election panel did not come to the venue of the election with the list of delegates for Federal House of Representatives, Kaduna South Federal Constituency, that the accreditation of delegates to vote at the venue of the Federal House of Representatives, Kaduna South Federal Constituency was not done in line with the 1st Respondent’s Guidelines for the nomination of candidates for Presidential, Gubernatorial, Senatorial, House of Representatives and House of Assembly Elections. It was further claimed that there was no announcement as to the total number of accredited delegates at the commencement of the purported primary election on the said 11th, 12th and 14th January, 2011. Following the flaws, and the fundamental irregularities in the conduct of the primary election, the Appellant and the other Plaintiffs lodged a complaint with the 1st Respondent and sought for reversal of the same but no response was communicated to them by the 1st Respondent. Rather, the 1st Respondent presented the 6th Respondent as the nominated candidate of the 1st Respondent for Federal House of Representatives, Kaduna South, Federal Constituency Primary election to the 5th Respondent and upon which the 5th Respondent announced and displayed the 6th Respondent as the flag bearer of the 1st Respondent for the Federal House of Representative Kaduna South, Federal Constituency.
It is distinct in the processes filed by the Appellant and the rest Plaintiffs at the lower Court that they were challenging the way and manner the said primary election was conducted, alleging that certain fundamental entrenchments of the 1st Respondent’s Party Guidelines and the Electoral Act were not complied with. Their expostulation was not founded on who was the validly nominated candidate of the party but primarily on the allegation of non-compliance with the Party’s Guidelines and the provisions of the Electoral Act 2010 (as amended).

In Uwazurike v. Nwachukwu (2013) 3 NWLR Part 1342 page 503 delivered on the 7th December, 2012, the Supreme Court opined that the phrase “Notwithstanding the provisions of the Act or rules of a Political Party” overrides any other provision of the said Act, including sections 31(1), 33 and 35 thereof. It was stated that section 87(9) is not made subject to any provision of the Electoral Act. Rather, it operates notwithstanding the provisions of the Act or rules of a Political Party. The apex Court stated that the provisions of section 87(9) of the Act (as amended) is very clear and unambiguous and should be given its natural and plain meaning. Onnoghen, J.S.C. stated thus:

“The jurisdiction conferred on the High Court under section 87(9) of the Act in question is limited to “an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election…” to apply to or seek redress of his grievances from the High Court.

I hold the considered view that jurisdiction conferred on the High Court by the above section of the Act is not limited to time, let alone circumscribed between the holding of the primary election and submission of the name of the nominated or sponsored candidate by the political party concerned. The provisions of section 87(9) (supra) is very clear and unambiguous and should be given its natural and plain meaning.”

Chukwuma-Eneh, J.S.C., at page 526 opined thus:

“The important point in construing this provision is that the aggrieved party must first and foremost be an aspirant in the primary that has produced the sponsored candidate by the political party. It is only an aspirant as the 1st Respondent here in this matter who has taken part in the political party primary as the instant one and invariably has failed in the primary to secure selection/nomination that can exercise the right/interest arising from the provisions of section 87(9) (supra). The 1st Respondent being an aspirant within the definitions of this section and has been aggrieved party has the locus standi to institute the instant action. It follows from the specific provisions of section 87(9) that it is only where an aspirant as the 1st Respondent has the locus standi that the Federal High court or a High court would have the jurisdictional competence to entertain the dispute arising from a party primary for the said selection/nomination and it is not time limited.”

“87(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.

Construing the words of the foregoing provisions they are clear and so a combined reading of both provisions show that the onus on the Appellant in order to properly constitute this action is firstly to bring himself within the definition of an “aspirant” as contemplated under the Electoral Act 2010 (as amended); he can only do so if he has been an aspirant in the con of the above provisions in which case he must have been a person who has taken Part in an authentic and valid party primaries.”

Also, Rhodes-Vivour, J.S.C., at page 603 expressed that
“where the Political party conducts its primaries and a dissatisfied contestant at the primaries complains about the conduct of the primaries, the courts have jurisdiction by virtue of the provisions of section 87(9) of the Electoral Act to examine if the conduct of the primaries election were conducted in accordance with the party’s constitution and Guidelines, see Hope Uzodinma v. Senator O. Izunaso 2011 vol. 5 M.J. SC p.27, (2011) 17 NWLR Part 1275 page 28. This is so because in the conduct of its primaries the courts will never allow a political party to act arbitrarily or as it likes.”

I must observe there are unaccountable decisions of the apex Court on the interpretation of the provisions of section 87(9) of the 2010 Electoral Act (as amended). I am of the candid opinion that the lower Court was completely off the track when it declined jurisdiction to entertain the suit of the Appellant on the ground that he failed to fulfill a condition precedent to the institution of the action. The provisions of section 87 were not made subject to the Party’s Guidelines or the Electoral Act itself. It overrides every provision of any section of the Act or any party’s Guidelines. Further, I am of the opinion that this case does not fall within the scope of matters this Court can easily invoke the provisions of section 15 of the Court of Appeal Act to assuage the situation. Beside, this matter was commenced by way of Originating Summons and certain facts appeared contentious that need to be straightened out by way of evidence. The best option open to this Court is to remit the case to the lower Court to be heard on the merits expeditiously considering the fact that the matter is in respect of an election that was held in 2011. I, therefore, in the light of the cases mentioned above, allow this appeal and set aside the decision of the lower Court made on the 25th July, 2011. Accordingly this appeal is hereby allowed. Suit No. FHC/KD/CS/30/2011 is hereby remitted to the lower Court for hearing on the merits. I make no order as to costs.

ABDU ABOKI, J.C.A.: I agree with the reasoning and conclusion reached by my learned brother THERESA NGOLIKA ORJI-ABADUA J.C.A., in the leading judgment delivered by him that there is merit in this appeal, and should be allowed. I accordingly set aside the decision of the Lower Court made on the 25th July, 2011. I also agree that suit No. FHC/KD/CS/30/2011 should be remitted to the lower Court for hearing on the merits. I too make no order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Orji-Abadua, JCA. His Lordship has considered and rightly resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions. I only wish to make some comments.
This is a pre-election matter. The Appellant, along with three other persons, commenced an action, as plaintiffs, by an Originating Summons against the Respondents, as defendants, in the Federal High court in suit No. FHA/KD/CS/30/2011. The gravamen of the complaint in the suit was that the conduct of the primary election of the first Respondent for the Federal House of Representatives, Kaduna South Federal constituency which took place on the 11th, 12th and 14th of January, 2011 was carried out in breach of the mandatory provisions of the Electoral Act, 2010 and of the Constitution of the first Respondent, 2010 and the Guidelines for primary election of the first Respondent, 2010. Amongst the several processes filed before the lower court was a motion on notice by the sixth Respondent dated the 4th of March, 2011 paying the lower Court to strike out the suit on the ground that the Appellant, and his co-plaintiffs, did not exhaust the internal remedies contained in the Rules and Guidelines of the first Respondent for the resolution of such disputes before coming to court and that as such the action was premature and incompetent and that the lower court had no jurisdiction to entertain the suit. The lower court took arguments on all the processes filed by the parties together and it also considered the appropriateness of the originating Summons used in commencing the action. It looked at the several affidavits filed by the parties in detail and it stated thus:

“From the various affidavit evidence placed before the Court, it is very clear that the facts as to whether the party primaries for the Federal House of Representatives, Kaduna South Federal Constituency under the platform of the 1st Defendant as well as the facts of irregularities in the conduct of same are hotly contested by the parties. Hence, originating summons is not an appropriate mode of commencing this action…

As to the exhaustion of internal remedies, the Plaintiffs’ Counsel has conceded that the 1st Defendant’s Guidelines has prescribed the mode of channeling grievances arising from party primaries but was quick to add that same is necessary only where there was a party primaries properly conducted. The law is also settled that resort to construction by implication is permissible only if the meaning of a statute is not plain or clear. Therefore, where the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction and to draw inference and supply omission.
The 1st Defendant’s Guidelines no doubt contain provisions for complaint or grievances arising from nomination wherein it emphatically provides that all election petitions shall submitted to the relevant Nomination Sub-Committee and copied to the National Secretary of the parry to reach him not later than Forty-eight (48) hours after the conduct of the primaries. That such petition will be handled by a Primary Election Petition and Appeal Committee established for that purpose by the National Executive Council (NEC) of the party.
The foregoing is plain and to ascribe any meaning by reference or implication is therefore not permissible. I have also considered the petitions annexed to the Originating Summons marked as exhibit B and that same are addressed to the National Chairman of the 1st Defendant contrary to the letter and spirit of the 1st Defendant’s Guidelines.
I have held elsewhere in this judgment that the suit was improperly commenced and that the appropriate consequential order would have been to convert the suit and request parties to file pleadings. However, the Court has found as a fact that the plaintiffs did not exhaust the internal remedies provided under the 1st Defendant’s Guidelines which means that the action is incompetent. That being the case, the jurisdiction of this Court has not been activated. Consequently, the suit is hereby struck out.”
The core issue submitted by the parties for determination in this appeal was whether, in view of the provisions of the Electoral Act, 2010 as amended, the lower Court was correct in striking out the suit on the ground that the first Respondent’s Guidelines were not complied with by the Appellant before approaching the Court for redress. The provision of the Electoral Act germane to the determination of this appeal is section 87(9) of the Electoral Act 2010 and it leads thus:

“Notwithstanding the provision of this Act or rules of a Political Party, an aspirant who complains that any of the provisions of the Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”

The interplay between this provision and Guidelines of political parties on the resolution of disputes arising from conduct of primary elections has been considered by the Supreme Court in a number of cases. The consensus in all the decisions is that a High Court or a Federal High Court has the jurisdiction to entertain a matter brought by an aspirant in a political party’s primaries questioning the conduct of that primaries, notwithstanding the fact that the aspirant did not use or exhaust the internal resolution mechanisms contained in the Guidelines of the political party, but this is only where the complaint is that the primaries was not carried out in accordance with the provisions of the Electoral Act or of the Constitution and Guidelines of the political party. The rationale being that a political party should not be allowed to violate or breach its own guidelines and Constitution and foist excesses and arbitrariness on a member of the party. In addition to the cases referred to in the lead judgment, the Supreme Court stated this position in Nagogo v. Congress for Progressive Change (2013) 2 NWLR (Pt. 1339) 448, Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90 and Salim v. Congress for Progressive Change (2013) 6 NWLR (Pt. 1351) 501.
It was not in dispute in the instant case that the Appellant was an aspirant in the primary election of the first Respondent for the Federal House of Representatives, Kaduna South Federal Constituency which took place on the 11th, 12th and 14th of January, 2011 and the complaint of the Appellant before the lower Court was that the primary election was carried out in breach of the mandatory provisions of the Electoral Act, 2010 and of the Constitution of the first Respondent, 20l0 and the guidelines for primary election of the first Respondent, 2010. The lower Court was thus clearly in error when it held that the action was incompetent simply because the Appellant did not use or exhaust the internal resolution mechanisms contained the Guidelines of the first Respondent before commencing the action.
Counsel to the Appellant urged this Court, in his brief of arguments, to exercise its powers under section 15 of the Court of Appeal Act, 2004 to determine this matter on the merits, if it found that the lower Court was in error in holding that the action was incompetent. It is not in contest that this Court is empowered by the provisions in section 15 of the Court of Appeal Act, 2004 to make any order necessary for determining the real question in controversy in an appeal and to, in doing so, generally exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as court of first instance and may rehear the case in whole or in part. It is, however, not a power that this Court can exercise as it desires. Certain conditions must exist for the power to come into play and these are:

i. that the High Court or trial court must have had the legal power to adjudicate in the matter before the appellate Court can entertain it;

ii. that the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal;

iii. that all necessary materials to determine the matter must be available to the court for consideration;

iv. that the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the material presented and, in this wise, the length of time between the disposal of the action at the trial court and the hearing of the appeal is a factor; and

v. that the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.
See the cases of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, Amaechi v. Independent National Electoral Commission (2008) 5 NWLR (Pt. 1080) 227, Ezigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 and Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954.

Now, this was a matter commenced by Originating Summons and in which the parties filed several, affidavits. The lower court found in its judgment that it was very clear from the several affidavits that the facts as to whether the party primaries for the Federal House of Representatives, Kaduna South Federal Constituency under the platform of the first Respondent as well as the facts of irregularities in the conduct of same were hotly contested by the parties. The lower Court concluded therefrom that oral evidence was necessary and that the Originating Summons was an improper mode of commencing the action. The Appellant did not appeal against this finding of the lower Court. It is settled law that where there is no appeal against any specific finding of fact made by a trial Court the finding remains unassailable and is binding on the parties – Amale v. Sokoto Local Government (2012) 5 NWLR (Pt. 1292) 181, SCC (Nigeria) Ltd v. Anya (2012) 9 NWLR (Pt. 1305) 213, Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117.What this means is that the parties need to adduce further evidence and as such all the necessary materials to determine the matter are not available to this Court for consideration. This Court is thus handicapped in exercising its powers under section 15 of the Court of Appeal Act, 2004.
It is in the light of these reasons and the more detailed exposition in the lead judgment, that I also find merits in this appeal. I too allow the appeal and hereby set aside the decision of the Federal High Court in Suit No. FHC/KD/CS/30/2011 delivered by Honorable Justice M. L. Shuaibu on the 25th of July, 2011. I abide by the consequential order remitting the Suit No. FHC/KD/CS/30/2011 to the lower Court for hearing on the merits.

Appearances

Dr. A. Amuda-Kannike Esq.For Appellant

AND

Egang Agabi Esq. – 1st-4th Respondent

O. I. Habeeb Esq. with Y. Ajibola Esq. – 6th Respondent
No Counsel – 5th RespondentFor Respondent