DAMIAN ABDUL ADEJOH v. HON. GABRIEL YUNISA OLOFU & ORS
(2014)LCN/6807(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of January, 2014
CA/A/490/2012
RATIO
APPEAL: WHETHER AN APPELLANT CAN FORMULATE A GROUND OF APPEAL COVERING OF MANY ISSUES
It is permissible for an appellant to formulate a single issue to cover many grounds of appeal. But what an appellant cannot do is to formulate a ground of appeal covering many issues. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. An issue that does not arise from any of the grounds of appeal is totally irrelevant and would be struck out. See Onyia vs. The State (2008) 12 SCNJ 503 at 508. In Ndukwe vs. The State (2009) 2 SCNJ 223, Ogbuagu, JSC held at page 246-247 as follows:
“The appellant formulated two issues for determination, namely:
‘2.01 Whether the Court of Appeal was right when it held that the identity of the Appellant in the commission of the offences charged was proved by the prosecution.
2.02 Whether the Court of Appeal was right when it held that the prosecution proved the charge against the Appellant beyond reasonable doubt.’
The respondent on its part formulated three issues for determination namely:
‘3.01 Whether the appellant was properly and sufficiently identified as the person who killed the deceased in this case.
3.02 Whether the Court of Appeal was right in upholding the rejection of the defence of Alibi set up by the appellant at the trial Court.
3.03 Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant at the trial Court.’ Per JOSEPH TINE TUR, J.C.A.
WHETHER THE ISSUE FOR DETERMINATION MUST BE DERIVED FROM THE GROUND OF APPEAL.
It is now settled that issue for determination, must relate to and be derived from the ground of appeal otherwise such issue is incompetent and it is therefore liable to be struck out. See the cases of Alhaji Animashaun vs. University College Hospital (1996) 12 SCNJ 179 at 184; Chief Aghaisi & 3 Ors. vs. Obikorefe & 6 Ors. (1997) 4 NWLR (Pt.502) 630 at 650; (1997) 4 SCNJ 147 at 157 citing several other cases therein, and recently, Falola vs. Union Bank of Nigeria Plc (2005) 2 SCNJ 209 at 221; (2005) 2 SC (Pt.II) 62 just to mention but a few. For an issue to be sustained, it must be formulated within the parameters of a ground of appeal and not on the totality of the issues formulated. See the case of Biocon Agrochemical (Nig.) Ltd. & Ors. vs. Kudu Holdings (PTY) Ltd. & Anor. (2000) 15 NWLR (Pt.699) 493; (2000) 12 SCNJ 272.” Per JOSEPH TINE TUR, J.C.A.
JUSTICES:
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
DAMIAN ABDUL ADEJOH – Appellant(s)
AND
1. HON. GABRIEL YUNISA OLOFU
2. THE PEOPLES DEMOCRATIC PARTY (PDP)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): The appellant and the 1st respondent are members of the Peoples Democratic Party in Olamaboro Local Government Area of Kogi State. The Party conducted primaries on 4th January, 2011 to elect a candidate who would subsequently contest the April, 2011 election into Olamaboro Constituency into the Kogi State House of Assembly. Though conducted within the time stipulated by the Independent National Electoral Commission the primaries it would appear were marred by irregularities/violence followed by complaints/protests hence a re-run was ordered by the Party hierarchy which took place on 29th January, 2011.
The 1st respondent contended that his name should have been forwarded by the Party to the Commission based on the primaries held on 4th January, 2011 where he had 302 votes while the appellant scored only 6 (six) votes. That the purported re-run primaries of 29th January, 2011 should be declared invalid having been conducted after the expiration of the period prescribed in the Guidelines/Manuals of the Electoral Act, 2010 as amended.
The appellant on the other hand regarded the re-run primaries of 29th January, 2011 which he claimed to have won as valid or authentic and his name was therefore validly presented by the Party to the Commission as her candidate at the general election. With the controversy raging, the 1st respondent proceeded to the Federal High Court, Abuja on 7th February, 2011 by way of originating summons supported by affidavit and documentary exhibits seeking diverse declaratory and injunctive reliefs, namely, to restrain the Peoples Democratic Party from presenting the appellant as her candidate at the forth coming elections. Furthermore, that the Independent National Electoral Commission should not recognize any other person, including the appellant, for the purposes of contesting the April, 2011 general elections.
The originating summons was subsequently, on the application of the parties, transferred by the learned trial Federal Judge to the Federal High Court, Lokoja in Kogi State for hearing and determination where pleadings were ordered, filed, and exchanged and the matter proceeded to trial. On the completion of hearing, written addresses were filed. His Lordship, I.E. Ekwo F.J., delivered judgment on 29th June, 2012. The learned Federal Judge gave detailed reasons at pages 784-787 of the printed record as follows:
“In other words, nobody can be allowed to take advantage of an illegal act. The legal effect of conducting primary election outside the period stipulated by the 2nd Defendant is that there was no primary election on 29th January, 2011. Whatever the 1st and 3rd defendants did on 29th January, 2011 in the name of primary election amounted to nothing. Nobody can claim to have been nominated in a primary election that was void ab initio. That being my view, I hold that Exhibits “DW2-G” and “D1” have lost their foundation and have become worthless in terms of evidential value in the claim of the 3rd Defendant’s nomination. I now answer the two issues formulated and argued thus:
(i) The argument that there were two competing primary elections fails irredeemably as the precedent in the case of Lado vs. CPC & Ors. (supra) cannot be used as a shield for an act that is manifestly unlawful, illegal and void; and,
(ii) On a calm assessment and complete overview of the case and evidence adduce by the parties, the Plaintiff has proved his case. Consequently, the case of the plaintiff succeeds in whole.
I therefore in the circumstances make an order granting the reliefs sought as follows:
(a) I declare that the primary election held on 4th January, 2011 by the 1st Defendant and supervised by the 2nd Defendant for the Olamaboro Local Government Constituency House of Assembly is valid and still subsists.
(b) I declare that the plaintiff’s nomination as the 1st defendant’s (PDP) flag bearer for Olamaboro House of Assembly Constituency election for the April, 2011 is valid.
(c) I declare that the purported or orchestrated re-run primary for Olamaboro Constituency for the Kogi State House of Assembly election on the 29th January, 2011 is illegal, null, void, wrongful and unconstitutional.
(d) I declare that all primaries were required to be conducted and conducted on or before the 15th January, 2011.
(e) I make an order of perpetual injunction restraining the 2nd defendant from accepting, receiving, acting upon or giving any regard or effect to the name of the 3rd Defendant herein for purpose of the conduct of the 2011 general election to the State House of Assembly for Olamaboro Constituency.
(f) I make an order of perpetual injunction restraining the 1st  and 2nd defendants from recognizing or presenting any other person, 3rd defendant (Damian Adejoh) inclusive, to the Independent National Electoral Commission (INEC) for purpose of the Olamaboro House of Assembly Constituency Election for April, 2011.
(g) I make an order of perpetual injunction restraining the 2nd defendant either by itself, privies and agent(s) from recognizing or to accord any recognition to any other person than the plaintiff for the purpose of the Kogi State House of Assembly for Olamaboro Constituency for April general election, 2011.
(h) I make an order of perpetual injunction restraining the 3rd Defendant (Damian Adejoh) from holding, projecting and, or, parading himself as Peoples Democratic Party’s (PDP) flag bearer for Olamaboro Constituency House of Assembly candidate for April, 2011 general elections.
(i) I declare that the plaintiff is the valid candidate of the 1st Defendant (PDP) at the 2011 general election for the seat of Olamaboro Local Government in the Kogi State House of Assembly.
(j) I declare that the primary election of the 1st Defendant (PDP) held on 29th January, 2011 which produced the 3rd Defendant as candidate of the 1st Defendant (PDP) for the Olamaboro Local Government Assembly seat in Kogi State House of Assembly is illegal, unlawful, unconstitutional, and null and void.
(k) I make an order nullifying all steps taken by the Defendants since 29th January, 2011 to date that culminated in the 3rd Defendant being a member of the Kogi State House of Assembly.
(l) I make an order of perpetual injunction restraining the 1st and 2nd Defendants from parading the 3rd Defendant as a member of Kogi State House of Assembly or recognizing him as such.
Accordingly, I make consequential order directing the 2nd Defendant to issue Certificate of Return for Member, State House of Assembly to the Plaintiff forthwith and the immediate swearing-in and, or, inauguration of the plaintiff as a member of the Kogi State House of Assembly representing Olamaboro Local Government Area Constituency.
This is my judgment.”
Aggrieved by this judgment the appellant filed two Notices of Appeal, one on 29th June, 2012 and the second on 30th July, 2012 followed by a brief of argument on 24th April, 2013. The Notice of Appeal filed on 29th June, 2012 was abandoned. See paragraph 2.04 of the appellant’s brief of argument at page 10 of the printed record. Accordingly, it is struck out.
The 1st respondent’s brief was filed on 3rd October, 2013 along with a Notice of preliminary objection the same day. The preliminary objection reads as follows:
“TAKE NOTICE that the 1st Respondent herein shall, at or before the hearing of the Appeal raise preliminary objection thereto having regard to the competence of the Appeal itself as well as the Grounds of Appeal therein, to wit: Grounds 1, 2, 3, 4, 5, 6, and 7.
AND FURTHER TAKE NOTICE that the Grounds for the said Preliminary Objection are inter alia as follows:
1. Grounds 1 and 7 of the Notice of Appeal dated and filed on 30th July, 2012 ought to be deemed as abandoned by the appellant and liable to be struck out there being no valid issue(s) formulated thereof for determination and/or having not been covered by issues formulated by the Appellant.
2. Grounds 4 and 6 of the Notice of Appeal dated and filed on 30th July, 2012 are needlessly argumentative and/or at cross-purposes with the particulars hence offensive of Order 6, rule 2(3) of the Court of Appeal Rules, 2011.
3. Ground 6 of the Notice of Appeal dated and filed on 30th July, 2012 is manifestly incompetent as same does not arise from the judgment of the learned trial Judge and/or against the ratio decidendi of the judgment of the lower Court.
4. Issues 1, 2, 3 and 4 formulated by the Appellant which lumped together otherwise valid grounds of Appeal with invalid grounds of Appeal and argued together renders all the grounds of Appeal and issues for determination incompetent.
5. Arising from ground 4 above, the Appeal itself is rendered incompetent and ought to be struck out as there is no valid or extant ground to animate it.
AND TAKE NOTICE that at the hearing of the Notice of Preliminary Objection, the 1st Respondent will use and rely on the 1st Respondent’s Brief of Argument dated 2nd day of October, 2013 particularly part “A” thereof.”
The learned silk appearing for the 1st respondent proffered argument in support of the preliminary objection in the brief of argument. The 2nd respondent’s brief was filed on 27th September, 2013 while the 3rd respondent filed a brief on 28th October, 2013 which was deemed by this Court on 30th October, 2013. In respect to the preliminary objection raised by the 1st respondent, the appellant filed a reply brief on 11th October, 2013. The appellant again filed a reply brief on 11th October, 2013 in answer to the brief filed by the 2nd respondent. On the 30th October, 2013 the appellant filed another reply brief in response to the 3rd respondent’s brief. Thereafter, the 1st respondent filed a brief on 24th October, 2013 titled “1st Respondent’s Reply Brief of Argument to Appellant’s Reply Brief in Respect of Notice of Preliminary Objection.”
When the appeal came up for hearing on the 28th November, 2013 the 1st respondent adopted the argument in respect of the preliminary objection. The learned Counsel to the appellant did likewise. Thereafter, each Counsel adopted their briefs in support or against hearing of the substantive appeal. I have read the arguments for and against the hearing of this appeal. I need not reproduce them verbatim since the grounds of objection speak loud and clear the basis of the preliminary objection which I shall proceed to consider.
The purpose of raising a preliminary objection if upheld, is to render further proceedings before a Court or tribunal, impossible, or unnecessary. For instance, an objection to a Court or tribunal’s jurisdiction is a preliminary objection, and if upheld, the order to make is to strike out the proceeding or issues, on the grounds of incompetency.
That being the legal situation, I shall consider the objections and the grounds upon which the 1st respondent has anchored argument before proceeding to the determination of the merits of the substantive appeal, should the need arise.
My attention has been drawn by the learned Counsel to the 1st respondent to the grounds of appeal and the issues formulated by the appellant as arising for determination in this appeal. The preliminary objection attacks both the grounds of appeal and the issues for determination in the substantive appeal. The issues are as follows:
“1. Whether guidelines issued by 3rd Respondent pursuant to Section 153 of the Electoral Act, 2010 (as amended) can override any substantive provision of the Act. Grounds 1 and 4 of the Notice of Appeal of 30th July, 2012.
2. Whether the trial Court had the jurisdiction to determine the validity of any nomination resulting from 2nd Respondent’s primary election of 4th January, 2011 and 29th January, 2011. Grounds 1, 2, and 4 of the Notice of Appeal of 30th July, 2012.
3. Whether the trial Court was right in deciding that it was the name of 1st Respondent that was submitted by 2nd Respondent to 3rd Respondent as its candidate for the April, 2011 general election from Olamaboro State Constituency to Kogi State House of Assembly. Grounds 1, 3, 4, and 5 of the Notice of Appeal of 30th July, 2012.
4. Whether the trial Court was right in failing to consider and resolve issues of participation or non-participation of 1st Respondent in 2nd Respondent’s primary election of 29th January, 2011 when the issue was duly raised and canvassed by Appellant, 1st and 2nd Respondents.
Grounds 1 and 6 of Notice of Appeal of 30th July, 2012.”
It can be noticed that issue 1 covers grounds 1 and 4 while issue two relates again to grounds 1, 2 and 4. Grounds 1, 3, 4 and 5 is covered by issue three while issue 4 is in respect of grounds 1 and 6 in the Notice of Appeal. No issue is formulated in respect of ground seven. Accordingly, ground seven is struck out. Ground 1 in the Notice of Appeal appears in all the four issues.
Ground 1 in the Notice of Appeal is the omnibus ground, namely, “That the decision of the trial Court cannot be supported having regard to the weight of the evidence adduced on record.” The Notice of Appeal indicates that the appellant is appealing against “The whole decision.”
What then is the legal effect of ground one being argued in each of the four issues formulated by the learned Counsel to the appellant?
It is permissible for an appellant to formulate a single issue to cover many grounds of appeal. But what an appellant cannot do is to formulate a ground of appeal covering many issues. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. An issue that does not arise from any of the grounds of appeal is totally irrelevant and would be struck out. See Onyia vs. The State (2008) 12 SCNJ 503 at 508. In Ndukwe vs. The State (2009) 2 SCNJ 223, Ogbuagu, JSC held at page 246-247 as follows:
“The appellant formulated two issues for determination, namely:
‘2.01 Whether the Court of Appeal was right when it held that the identity of the Appellant in the commission of the offences charged was proved by the prosecution.
2.02 Whether the Court of Appeal was right when it held that the prosecution proved the charge against the Appellant beyond reasonable doubt.’
The respondent on its part formulated three issues for determination namely:
‘3.01 Whether the appellant was properly and sufficiently identified as the person who killed the deceased in this case.
3.02 Whether the Court of Appeal was right in upholding the rejection of the defence of Alibi set up by the appellant at the trial Court.
3.03 Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant at the trial Court.’
Before going into the merits of the appeal, I note that both learned Counsel for the parties, did not state under what ground or grounds of appeal, their said issues, were distilled from. It is now settled that issue for determination, must relate to and be derived from the ground of appeal otherwise such issue is incompetent and it is therefore liable to be struck out. See the cases of Alhaji Animashaun vs. University College Hospital (1996) 12 SCNJ 179 at 184; Chief Aghaisi & 3 Ors. vs. Obikorefe & 6 Ors. (1997) 4 NWLR (Pt.502) 630 at 650; (1997) 4 SCNJ 147 at 157 citing several other cases therein, and recently, Falola vs. Union Bank of Nigeria Plc (2005) 2 SCNJ 209 at 221; (2005) 2 SC (Pt.II) 62 just to mention but a few. For an issue to be sustained, it must be formulated within the parameters of a ground of appeal and not on the totality of the issues formulated. See the case of Biocon Agrochemical (Nig.) Ltd. & Ors. vs. Kudu Holdings (PTY) Ltd. & Anor. (2000) 15 NWLR (Pt.699) 493; (2000) 12 SCNJ 272.”
Counsel must state under what ground or grounds of appeal each and every issue for determination is distilled. This is supported by Order 18 rule 3(1) of the Court of Appeal Rules, 2011 which reads as follows:
“3(1) The brief… shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
It something arises from, in, or out of a situation, event, etc, it is caused or started by that situation, etc. Alternatively, if something arises from, in, or out of a particular situation, it is created or caused by that situation. The legal implication is that ground one in the Notice of Appeal which is that the decision is against the weight of evidence has arisen in each of the four issues formulated for determination by the appellant. I do not think a ground of appeal can cover or appear in four issues formulated for determination by an appellant. That will contravene the provisions of Order 18 rule 3(1) of the Court of Appeal Rules, 2011. The legal implication is that having argued ground one in issue one, the same or similar argument will appear in issues two, three and four. The Supreme Court has set out clearly the nature and scope of the omnibus ground of appeal and the kind of issues that can be raised and argued in that ground in Akinlagun vs. Oshoboja (2006) All FWLR (Pt.325) 53 at pages 75-76 per Kalgo, JSC to wit:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona vs. Kolawole (1996) 10 NWLR (Pt.476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. Where however, no issue is raised in respect of a ground of appeal, the ground of appeal is deemed abandoned and it should be struck out. See Ndiwe vs. Okocha (1992) 7 NWLR (Pt.252) 129; Iyaji vs. Eyigebe (1987) 3 NWLR (Pt.61) 523; Ajibade vs. Pedro (1992) 5 NWLR (Pt.241) 257; Are vs. Ipaye (1986) 3 NWLR (Pt.29) 416.”
Again in Bhojsons Plc vs. Daniel-Kalio (2006) All FWLR (Pt.312) 2038 at 2055, Mohammed, JSC held that:
“It is trite that there are several decisions of this Court warning parties, particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like issues of damages, in the absence of specific grounds of appeal raising the questions. See Ndiwe vs. Okocha (1992) 7 NWLR (Pt.252) 129 at 139-140.”
What then is the consequence of raising the omnibus ground of appeal in each of the four issues distilled by the appellant in his brief of argument?
In Akinlagun vs. Oshoboja (supra) Ogbuagu, JSC held at page 82 as follows:
“The appellants filed eleven (11) grounds of appeal and formulated four (4) issues for determination, but regrettably, their learned Counsel in the brief of argument, did not identify any of the said issues with any of the grounds of appeal. It has been stated and re-stated in a legion of decided authorities both in the Court of Appeal and in this Court, that for an issue for determination to be competent, it must be based or related to or distilled from an identified competent ground of appeal. See Amadi vs. NNPC (2000) 10 NWLR (Pt.674) 76; (2000) 6 SCNJ 1; (2000) 6 SC (Pt.1) 66; (2000) FWLR (Pt.9) 1527; (2000) WRN 47 and Archbishop of Jatau vs. Alhaji Ahmed & 4 Ors. (2003) FWLR (Pt.151) 1887; (2003) 1 SCNJ 382 at 388 and many others. The consequence of failure to do so, relate/distil/identify such issue or issues with the ground or grounds of appeal, is that such issue or issues, is or are liable to be struck out.”
I shall strike out the four issues formulated by the learned Counsel to the appellant in which case the six grounds of appeal are not covered by any issue for determination. Accordingly, the six grounds are also struck out. I am satisfied that the 1st respondent has proffered sufficient reasons in the brief of argument why the appeal should be dismissed in limine. See Order 18 rule 3(2) of the Court of Appeal Rules, 2011. Accordingly, both the issues and the grounds of appeal having been struck out, the appeal being incompetent, is dismissed.
However, since the appellant may test this decision in the Supreme Court, I shall go on to consider the appeal on the merit.
APPELLANT: ISSUE ONE:
Learned Counsel argued that in order to declare the Peoples Democratic Party re-run elections of 29th January, 2011 illegal, the learned Federal Judge elevated the Party Guidelines issued by the 3rd respondent above the substantive provisions of the Electoral Act, 2010 as amended. Counsel contended that the power to issue Guidelines, Regulations or Manuals that is vested on the Independent National Electoral Commission is for the purpose of giving effect to the provisions of the Act as stipulated under Section 153 of the Electoral Act (supra). It was in the exercise of this purposes that Exhibits “PW3D” and “PWE” were issued by the Commission indicating the terminal date for the conduct of Party Primaries for the purpose of the April, 2011 general election. The question is, where a political party conducted Party Primaries within the stipulated period but due to complaints and irregularities, the National Working Committee of the Party fixed a re-run outside the terminal date, it could be argued that such a re-run was illegal?
Learned Counsel referred to Article 17.1 of the Party Constitution which vested the power to formulate guidelines and regulations for nomination of candidates for election into public offices at all levels in the National Executive Committee of the Party. Counsel took the Court through the oral and documentary evidence adduced at the trial before submitting that in so far as Exhibit “PW3E” has the effect of subverting the provisions of Section 31(1) of the Electoral Act to which it is made subject by Section 153 of the Act, it is void. Learned Counsel cited a number of authorities which I shall in due course consider if the need arises.
ISSUE TWO:
It is the contention of learned Counsel that the learned Federal Judge had no jurisdiction to have entertained the suit by determining the validity of the nomination of the appellant which arose from the primaries conducted by the Party on 4th January, 2011 and the re-run of 29th January, 2011, citing Ezeigwe vs. Nwawulu (2010) 4 NWLR (Pt.1183) 159 at 192 and Lado vs. CPC (2012) All FWLR (Pt.60) 598 at 633. Counsel urged this Court to set aside the decision of the learned Federal Judge on ground of lack of jurisdiction.
ISSUE THREE:
Counsel’s submission is that the learned Federal Judge ought not to have ignored the evidence of DW1 and Dw2 as who the Party nominated and presented to the Commission as a candidate to contest the general elections. That it is the Peoples Democratic Party that was in a position to determine who should contest the elections as her candidate, citing Uzodinma vs. Izunso (No.2) (2011) 17 NWLR (Pt.1275) 30 at 82. Dw1 and Dw2 were officers of the Party and they both maintained in their evidence that it was the appellant’s name that was submitted to the Commission to contest the elections for Olamaboro State Constituency into Kogi State House of Assembly, but not the 1st respondent.
Accordingly, this issue should be resolved in favour of the appellant.
ISSUE FOUR:
The Court’s attention was drawn to paragraph 13 of the 1st respondent’s statement of claim where it was pleaded that he did not participate in the re-run primaries of the Party conducted on 29th January, 2011 hence the learned Federal Judge ought not to have entered judgment in his favour. Counsel urged this Court to resolve issue four in favour of the appellant.
On the whole, Counsel urged that this appeal should be allowed. The 1st respondent’s claim before the lower Court should be struck out for lack of jurisdiction. In the alternative, the action should be dismissed for want of merit.
1ST RESPONDENT: ISSUE ONE:
The learned silk appearing for the 1st respondent replied that the learned Federal Judge had the jurisdiction to entertain the claim. Counsel argued that the suit was instituted in the lower Court because the Party purported or attempted to substitute the name of the 1st respondent with the appellant after the 1st respondent had won the primaries conducted on 4th January, 2011. That the 1st respondent challenged the propriety of the purported re-run primaries of 29th January, 2011 after the time stipulated by the Commission had expired, more so that the 1st respondent neither resigned nor withdrew from the race. The case of the 1st respondent was therefore predicated on the provisions of Section 87(9) of the Electoral Act, 2010, he being an aspirant at the said elections. It was further contended that Section 89(9) of the Electoral Act, 2010 is the foremost, putative and indisputable provision that allows the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja to assume jurisdiction over a matter of this nature, relying on Uwazurike vs. Nwachukwu (2013) 3 NWLR (Pt.1342) 50 at 522; Nwaogu vs. Atuma (No.1) (2013) 9 NWLR (Pt.1358) 113 at 129-130; Emeka vs. Okadigbo (2012) 18 NWLR (Pt.1331) 55 at 102-103. The decision in Ehinlanwo vs. Oke cited by Counsel to the appellant was decided under the Electoral Act, 2006 which had no provision equivalent to Section 87(9) of the Electoral Act, 2010 as amended. Counsel distinguished Lado’s case from this appeal on the grounds that in that case, there were two parallel primaries conducted on 13th January, 2011 and 15th January, 2011. One was valid the other illegal. In this appeal the purported re-run primaries of 29th January, 2011 was conducted outside the time limit prescribed in Exhibit “PW3-E”, hence the only valid primaries was that held on 4th January, 2011 wherein the 1st respondent emerged as winner. There was no question of the primaries being conducted outside the time limited by the Electoral Act in Lado’s case and as such, the learned Federal Judge was right to have entered judgment for the 1st respondent. The Court was urged to resolve issue one in favour of 1st respondent.
ISSUE TWO:
Counsel’s argument is that there was overwhelming evidence that the name of the 1st respondent was submitted by the Party to the Commission after the primaries of 4th January, 2011 because he had the majority of the votes cast at that election. This was admitted by the Commission in her statement of defence and the deposition of witnesses notwithstanding that the appellant and the Party tried in vain to present a contrary version on the pretext that the election was inconclusive and was characterized by violence as a result of which it was cancelled and a re-run ordered. However, the witnesses that supported the appellant capitulated under cross-examination, citing Bamgboye vs. Olarewaju (1991) 4 NWLR (Pt.184) 132 at 155; Gaji vs. Paye (2003) 8 NWLR (Pt.823) 583 at 611.
Counsel further argued that the evidence of these witnesses constituted admissions upon which the 1st respondent could hold unto, to buttress his case. Reference was made to Igwe vs. ACB Plc (1999) 6 NWLR (Pt.605) 1 at 1; Chief Okparaeke vs. Egbuonu 7 WACA 53; Maduabum vs. Nwosu (2010) 13 NWLR (Pt.1212) 623 at 652. Learned Counsel’s contention was that the name of the 1st respondent was submitted to the Commission as the candidate of the Party to contest the forthcoming elections in April, 2011. The situation was worse for the appellant because he did not produce the result of the re-run primaries held on 29th January, 2011. Issue two should be resolved in favour of 1st respondent, argued learned Counsel.
ISSUE THREE:
The contention by learned Counsel is that issues were joined by the parties with respect to Exhibit “PW3-E.” The document was tendered and admitted in evidence without objection by the learned Counsel to the appellant. Counsel referred to Section 153 of the Electoral Act, 2011 which authorized the Commission to issue Guidelines, Regulations and Manuals for the purpose of giving effect to the provisions of the Electoral Act (supra) contrary to the argument of learned Counsel to the appellant. Besides, Section 153 is not subject to the provisions of Section 31(1) of the Act. After referring to the oral testimony of the witnesses, learned Counsel urged this Court to uphold the findings of the learned Federal Judge in favour of the 1st respondent, citing Hon. Aidoko Atai vs. Ocheja Emmanuel Dangana & Ors. (Unreported) Appeal No.CA/A/EPT/582/2011 delivered by this Court on 13th December, 2011 and Eyiboh vs. Abia (2012) 16 NWLR (Pt.1325) 51 at 86. Counsel urged this Court to resolve issue three in favour of the 1st respondent.
ISSUE FOUR:
Learned silk drew the Court’s attention to paragraph 13 of the 1st respondent’s statement of claim which was admitted in paragraph 13 of the Commission’s statement of defence wherein the Commission admitted she does not recognize any primaries conducted after 15th January, 2011. The re-run primaries was therefore void ab initio, citing in argument, Mcfoy vs. UAC (1962) A.C. 152 at 160; Skenconsult Nig. Ltd. vs. Godwin Sekondy & Anor (1981) 1 SC 6 at 8. The learned silk urged this Court to resolve issue four in favour of the 1st respondent and to dismiss the appeal. The judgment of the learned Federal Judge should be affirmed, argued the learned silk.
2ND RESPONDENT: ISSUE ONE:
The learned Counsel to the Peoples Democratic Party, cited Madukolu vs. Nkemdilim (1962) All NLR (Pt.4) 587 and Danfama vs. Usman (2013) 6 NWLR (Pt.1349) 50 at 92 and argued that the Federal Judge had the jurisdiction to entertain the claim which culminated into this appeal. Relying on Dalhatu vs. Turaki (2003) NWLR (Pt.843) 310 at 320, Counsel submitted that the issue of who was a candidate of a political party at an election is a political question to be determined by the rules of construction of the Party Constitution. It is a domestic issue, and is not justiciable. However, since the Party had not cross-appealed nor filed a Respondent’s Notice she cannot complain but would stand by the judgment of the learned Federal Judge, citing Etars Dazie (2013) 9 NWLR (Pt.1359) 248 at 262; Osamwonyi vs. Osamwonyi (2011) 8 NWLR (Pt.1249) 328 at 335.
ISSUE TWO:
Learned Counsel referred to the provisions of Section 153 of the Electoral Act, 2010 which authorizes the Commission to issue guidelines, regulations or manuals for the purpose of giving effect to the provisions of the Electoral Act and for her administrative purposes, example, Exhibit “PW3-E”. That the exhibit clearly showed that commencement of Party primaries was to commence from 26th November, 2010 and end on 15th January, 2011. In that case, the Party aligned with the interpretation placed by the learned trial Federal Judge on the exhibit, citing Hon. Aidoko Atai vs. Ocheja Emmanuel Danfama & Ors. (supra) and Eyibo vs. Abia (supra). Issue two should be resolved in favour of the Party.
ISSUE THREE:
Counsel posed three questions for determination, namely, “(1) Was there a primary election on 4th January, 2011? (2) Who won the election? And (3) Was the winner’s name submitted to the relevant authority?” To resolve these questions Counsel referred to the pleadings, oral and documentary evidence, supported by the decision in Ekpo vs. Toyo (2012) 8 NWLR (Pt.1303) 460 at 474; PDP vs. Sylva (2012) 13 NWLR (Pt.1316) 83 at 184 and Ugwu vs. Ararume (2007) 12 NWLR (Pt.1048) 305 to urge that the three questions should be resolved in favour of the 1st respondent.
ISSUE FOUR:
Counsel drew this Court’s attention to the decision in PDP vs. Sylva (supra) at page 122 paragraph “A” where the Supreme Court held that the Independent National Electoral Commission (INEC) has the sole responsibility to decide when primaries and elections are to be held. In the face of Exhibit “PW3-E” and “PW3-D”, one has no choice than to hold that the re-run primaries held on 29th January, 2011 were null and void. Besides, there was no evidence that the Commission was aware of the re-run elections conducted on 29th January, 2011. Learned Counsel urged that issue four should be resolved in favour of the 2nd respondent. On the whole the appeal should be dismissed and the judgment of the lower Court affirmed.
COMMISSION: ISSUES ONE, TWO AND FOUR:
Learned Counsel drew the Court’s attention to the evidence on record as showing that among those that contested the primaries of 4th January, 2011 the 1st respondent had the majority votes of 203 and the appellant 6(six) and was the candidate of the Party at the forthcoming elections in April, 2011. The Party submitted the 1st respondent’s name to the Commission. Learned Counsel contended that by virtue of Exhibit “3-E” the re-run primaries held on 29th January, 2011 was null and void as found by the learned Federal Judge. Counsel urged that these issues should be resolved in favour of the Commission.
ISSUE THREE:
The learned Counsel to the Commission dealt with the issue of the jurisdiction of the lower Court to entertain the claim under issue three. Counsel referred to the case of Peretu & 4 Ors. vs. Gariga & 4 Ors. (2012) 12 SC (Pt.VI) 125 at 160-161 to urge this Court to hold that the learned Federal Judge had the jurisdiction to entertain the controversy. Besides, the 1st respondent’s case in the lower Court was one of substitution. The argument of the learned Counsel to the appellant on the issue of jurisdiction was therefore unsustainable, citing Nwazurike vs. Nwachukwu (2012) 12 SC (Pt.II) 200 at 236-237. Counsel urged that this issue should be resolved in favour of the 1st respondent.
On the whole, Counsel urged that the appeal should be dismissed.
Though the learned Counsel to the appellant filed reply briefs in respect of each brief filed by the respondents, I see nothing new in them hence I shall not reproduce the arguments adumbrated in them.
The issues raised by the learned Counsel to the appellant and the respondent’s centres on whether the learned Federal Judge had the jurisdiction to entertain this suit and secondly, the validity of the re-run primaries conducted by the Peoples Democratic Party on 29th January, 2011. That being the case, I shall deal with all the issues formulated by Counsel in a swoop.
The trial in the lower Court was conducted on pleadings, sworn depositions, oral and documentary evidence. That being the case, oral and documentary evidence shall be used as acid test to interprete the relevant provisions of the Constitution, the Electoral Act No.6 of 2010 as amended, regulations, guidelines and manuals, etc, issued by the Independent National Electoral Commission. See Fashanu vs. Akekoya (1974) 6 SC 83; Olujinle vs. Adeagbo (1988) 2 NLR (Pt.75) 238 at 253; Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473.
Section 222(c) of the Constitution of the Federal Republic of Nigeria, 1999 provides that no association by whatever name called shall function as a political party unless a copy of its Constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Commission. The Commission is one out of many Federal Executive Bodies created under the Third Schedule, Part I to the 1999 Federal Constitution. Section 15 of the Commission’s Act provides as follows:
“15. The Commission shall have power to:-
(a) organize, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.
(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;
(c) monitor the organization and operation of the political parties, including their finances;
(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information.
(e) arrange and conduct the registration of persons qualified to note and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution.
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties.
(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law.
(h) delegate any of its powers to any Resident Electoral Commissioner; and
(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.”
The Commission has the power to organize, undertake and supervise all elections for instance, that to be held into the Kogi State House of Assembly in April, 2011. The Commission also had the power to monitor political campaigns and provide rules and regulations which shall govern political parties. Therefore, rules and regulations provided by the Independent National Electoral Commission have constitutional and statutory flavour. They are binding on all registered political parties that are registered in accordance with the provisions of the Constitution and an Act of the National Assembly. It is in consonance with the above provisions that the National Assembly enacted the Electoral Act No.6 of 2010 as amended, titled “An Act to… regulate the conduct of Federal, State and Area Council Elections and for related matters.” The title gives a fairly full description of the general purpose of the Act. The phrase “and for related matters” is expansive enough to cover primaries to be conducted by political parties for the election and presentation of candidates to contest general elections.
The intention of the legislature is that affairs of registered political parties are to be regulated by the Electoral Act No.6 of 2010 as amended. Therefore, for primaries to elect candidates for instance into the House of Assembly in Kogi State to be valid, it should have been supervised or monitored by the Independent National Electoral Commission. Section 153 of the Electoral Act (supra) provides as follows:
“153 The Commission may subject to the provision of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.”
Stiff penalty is provided for registered political parties that will violate the provisions of the Electoral Act No.6 of 2010 as amended under Section 87(9) as follows:
“(9) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
Registered political parties should ensure they conduct their primaries to select or nominate aspirants to elective offices in accordance with the provisions of the Act else they shall be disqualified by the Independent National Electoral Commission from presenting candidates at contested elections for which the primaries were conducted.
Registered political parties are bound by regulations, guidelines, or manuals issued by the Commission, subject to the provisions of the Electoral Act No.6 of 2010 as amended. They are for the purpose of giving effect to the provisions of the Act and for the administration of the Commission. Sections 85 of the Electoral Act (supra) provides as follows:
“85(1) A registered political party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committee, other governing bodies or nominating candidates for any of the elective offices specified under this Act.
(2) The Commission may, with or without prior notice to the political party, monitor and attend any convention, congress, conference or meeting which is convened by a political party for the purpose of:-
(a) electing members of its executive committees or other governing bodies;
(b) nominating candidates for an election at any level; and
(c) approving a merger with any other registered political party.
xxxxxxx.”
It is further provided in Section 86 of the Electoral Act No.6 of 2010 as amended as follows:
“86(1) The Commission shall monitor and keep records of the activities of all the registered political parties.
(2) The Commission may seek information or clarification from any registered political party in connection with any activity of the political party which may be contrary to the provisions of the Constitution or any other law, guidelines, rules or regulations made pursuant to an Act of the National Assembly.
(3) The Commission may direct its enquiry under subsection (2) of this section to the Chairman or Secretary of the political party at the National, State, Local Government Area Council or Ward level, as the case may be.
(4) A political party which fails to provide the required information or clarification under subsection (2) of this section or carry out any lawful directive given by the Commission in conformity with the provisions of this section commits an offence and is liable on conviction to a fine of not less than N500,000.00.”
The first duty of the appellant is to show that the Peoples Democratic Party gave the Independent National Electoral Commission 21 days statutory notice that re-run primaries were to be held on 29th January, 2011 so that arrangement could be made to monitor and supervise the re-run primaries. The second duty is to show by oral and documentary evidence that staff of the Commission monitored or supervised the primaries of 29th January, 2011.
Where the primaries to elect a candidate for the Party to contest the forthcoming elections into Olamaboro Constituency into Kogi State House of Assembly was conducted on 4th January, 2011 but a re-run was held on 29th January, 2011 it cannot be said that the Peoples Democratic Party complied with the above provisions of the Electoral Act No.6 of 2010 so as to have enabled the Commission to monitor and supervise the primaries of 29th January, 2011. There is nothing from the pleadings of the appellant that the re-run primaries of 29th January, 2011 were monitored and records to that effect were kept by the Commission.
Paragraphs 11-13 of the statement of claim filed by the 1st respondent pleaded as follows:
“11 That by the rules governing conduct of primary election, the deadline for submissions of candidates of political parties was 16th January, 2011 and I met the deadline.
12. That on 29th January, 2011 without giving me any form of hearing on notice, a purported primary election was conducted, as cover-up for substituting me for 3rd defendant.
13. That the 2nd defendant by a letter dated 24th January, 2011 to 1st defendant warned of the illegality of any planned re-run election or primary.”
The 2nd respondent pleaded in her statement of defence as follows:
“11. The 2nd respondent admit paragraph 11 as true.
12. The 2nd respondent admits paragraph 12 of the plaintiff statement of claim as true.
13. The 2nd respondent admits paragraph 13 as true and further aver that the 2nd respondent by its guidelines does not recognize any primaries conducted after the 15th January, 2011.”
By these admissions, judgment should have been entered against the 2nd respondent on the pleadings since no one sets out to prove that which has been admitted. See Mills vs. Awoonor (1940) 6 WACA 144 at 145; Attorney-General of the Federation vs. Sode (1990) 3 SCNJ 1 at 37; Egbe vs. Adefarasin (1990) 3 SCNJ 41 and Olade vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. Admitted facts need no further proof – See re Odutola (2002) at 1633; Iyamo vs. FMBN (1999) 13 NWLR (Pt.634) 178 at 188 and Akuma Industries vs. Ayman Enterprises Ltd. (1999) 13 NWLR (Pt.634) 68 at 88.
Constitutional and Statutory power vests absolutely in the Commission to set the time table for the conduct of party congresses. Both parties are in agreement that Exhibit “PW3-E” is the guidelines issued by the Commission for the holding of congresses to conduct primaries under column 2. It is clearly stated therein that: “Conduct of Party primaries. Commencement 26th November, 2010, End 15th January, 2011.”
Therefore, where it became necessary or unavoidable due to irregularities or violence, etc, perpetrated during the primaries held on 4th January, 2011 that necessitated their cancellation and holding of the re-run primaries of 29th January, 2011, the hierarchy of the Party should have sought and obtained extension of time from the Commission to conduct the re-run of 29th January, 2011.
Where a statute or law stipulates that a thing or certain things or acts should be done within a prescribed period but due to unavoidable circumstances it became necessary to do those things or acts outside the statutory period, leave, for instance, in this case, must be first sought and had from the Commission, else, the re-run will be declared null and void ab initio. In Idika vs. Erisi (1987) 11-12 SC 170 the grounds of appeal against the decision of the Court of Appeal to the Supreme Court were of mixed law and fact. The appellants did not obtain leave of either the Court of Appeal or the Supreme Court before filing the appeal. At page 36 Nnamani, JSC held as follows:
“On the face of the two Rules of this Court, it would seem as if there was indeed an appeal pending in this Court but this is not so. As previously mentioned the grounds of appeal in the purported notice of appeal filed by defendants on 28/2/86 raised questions of mixed law and fact and as no leave was obtained prior to their filing, they remained no more than mere documents. They were not notice and grounds of appeal within the meaning of Order 2, Rule 30 and Order 8, Rule 2, Supreme Court Rules, 1985. They acquired that status after the Court of Appeal orders on 25th March, 1986. It follows that there was prior to 25/3/86 no appeal by the defendants pending in this Court. The Court of Appeal did not therefore traverse into matters exclusively within the jurisdiction of this Court.”
Again at pages 39-40 of the same judgment Oputa, JSC held as follows:
“When an appellant is appealing on a point of law, that is to say, when his grounds of appeal are ground of pure law he appeals as of right, see Section 213(3) of the 1979 Constitution. But when he appeals on grounds of fact or of mixed law and fact his purported appeal is incompetent, a nudum factum without the requisite leave. Therefore to decide whether there is a proper appeal pending before the Supreme Court by virtue of Section 213 (supra), one has to go beyond the papers titled “Notice of Appeal” and carefully examine all the grounds supporting and animating that Notice of Appeal. If none of the grounds is a ground of law and if in addition no prior leave has been obtained pursuant to Section 213(3) of the 1979 Constitution, then no appeal is yet pending before the Supreme Court. Papers titled Notice and Grounds of Appeal had been filed yes indeed, but those papers were worthless and quite ineffective to constitute a valid and competent appeal. The papers titled “Notice of Appeal” and “Grounds of Appeal” were coram non judice and a nullity and the Court of Appeal would be perfectly justified in the exercise of its inherent jurisdiction to overlook those invalid “Notice” and “Grounds” as constituting appeal to the Supreme Court which should have deprived it of further jurisdiction in the matter: See Lazard Brothers & Co. vs. Midland Bank Ltd. (1933) A.C. 289. If Notice and Grounds of Appeal are not in conformity with the requirements of the Constitution and of the law they must be treated as void ab initio:- Macfoy vs. United Africa Company Ltd. (1961) 3 WLR 1405, (1961) 3 All E.R. 1169; (1962) A.C. 152 refers.”
The legal effect is that in such a case, only the Supreme Court could have extended time for appellant to file proper Notice and Grounds of Appeal. See Mohammed vs. Ola (1990) 4 SCNJ 23 at 38; Ezenwosu vs. Nganadi (1992) 3 SCNJ 59.
Article 2 of the Constitution of the Peoples Democratic Party as amended provides that:
“Subject to the provisions of the Constitution of the Federal Republic of Nigeria, this Constitution shall be supreme and its provisions shall have binding force on all members and organs of the Party.”
The supremacy of the Constitution of the Peoples Democratic Party is limited to every member of the party and her organs. But the Constitution, the members and organs of the party are subject to the supremacy of the 1999 Federal Constitution including Acts or statutes that derive force from the Constitution. In Aqua Ltd. vs. Ondo State Sports Council (1988) 10-11 SCNJ 26, Karibi-Whyte, JSC held at page 51 that:
“…The expression “subject to” subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter – see LSDPC vs. Foreign Finance Corporation (1987) 1 NWLR 461, Clark vs. I.R.C. (1973) 2 All E.R. 513.”
Therefore, all processes that derive or originate from the Constitution of the Peoples Democratic Party are subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999; the Electoral Act No.6 of 2010 as amended, the Guidelines, Manuals and Regulations which are fashioned by the Commission to regulate the affairs of political parties.The devastating effect of finding that the re-run of 29th January, 2011 was a sham, null and void exercise is that the appellant did not come within the ambit of Section 87(1)-(4)(c) of the Electoral Act No.6 of 2010 as amended which reads as follows:
“87(1) A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates for political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by the members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:-
(a) xxxxxxxxx
(c) in the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a political party shall where they intend to sponsor candidates:-
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centres on specified dates.
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.”
The 1st respondent had 203 (two hundred and three votes) while the appellant secured only 6(six) votes at the primaries held on 4th January, 2011. The appellant could not have been “an aspirant with the highest number of votes at the end of the voting” to be declared “the winner of the primaries of the Party” for his name to be “forwarded to the Commission as the candidate of the Party” at the general elections held in April, 2011 as rightly found from the oral and documentary evidence by the learned trial Federal Judge.
The highest fallacy is to think that primaries or re-run primaries of political parties can be organized or conducted without the supervision of accredited staff of the Independent National Electoral Commission. Such primaries or re-run primaries shall certainly be declared null and void as conferring no legal right on any member of a Party that founds his cause of action on such sham congresses or primaries. If there is no internal democracy within registered political parties the candidates that emerge from such congresses or primaries would have been undemocratically elected and presented to the electorate to contest elections. When such candidates win, they end ruling or governing the people with undemocratic mind sets, values or principles. They become despots, having no regard to the rule of law. Such persons delight in subverting the Constitution and the laws of the land.
The hierarchy of the Peoples Democratic Party subverted the time table for the holding of primaries between 26th November, 2010 to 15th January, 2011 when the re-run primaries were held on 29th January, 2011 without leave or supervision of the Commission.
It is ridiculous for the Party hierarchy to have ignored the primaries of 4th January, 2011 where the 1st respondent polled 203 votes as against 6(six) votes by the appellant, but purport, under the thin guise of violence and complaints, to conduct a re-run on 29th January, 2011. Political parties should learn not to subvert the duties and powers of the Independent National Electoral Commission, conferred on her by the Constitution, the Electoral Act, Guidelines, Regulations and Manuals. That will introduce anarchy into the polity. The reason there is much wrangling within registered political parties is the refusal or neglect to recognize that Party Constitutions have binding force on the members and organs of the Party. As long as the provisions of Party Constitutions are not adhered to, there will be no unity, peace and justice within registered political parties. This fallacy is pleaded in paragraph 5(ii)-(iii) of the appellant’s statement of claim to wit:
“(ii) The Guidelines made by the 2nd defendant for the conduct of Party primaries and the April, 2011 general election were not sacrosanct and were amended or modified as situation demanded.
(iii) Although 2nd defendant’s initial guideline on conclusion of party primaries was 15th January, 2011 …the 2nd defendant could not enforce its letter of 24th January, 2011.”
Section 87(10) of the Electoral Act No.6 of 2010 provides that:
“10 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 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 for redress.”
I hold that the lower Court had the jurisdiction to entertain this suit. Accordingly, I am of the opinion that only the Independent National Electoral Commission had the statutory powers to extend the time to conduct the re-run primaries of 29th January, 2011. It is not within the province of any political party to violate regulations, guidelines or manuals issued by the Commission in exercise of their statutory powers under Section 153 of the Electoral Act No.6 of 2011 as amended.
The legal effect is that the re-run primaries of 29th January, 2011 conducted without leave of the Independent National Electoral Commission after 15th January, 2011 was void ab initio as rightly held by the learned trial Federal Judge in the Court below. As the re-run was not in conformity with the guidelines for the conduct of primaries stipulated by the Commission, the re-run conferred or vested no legal rights on the appellant. It was a worthless exercise. The appellant derived no legal rights or claim from that void exercise.
This appeal has no merit and is dismissed. I affirm the judgment of the lower Court. I award N50,000.00 costs against the appellant to each respondent.
AMIRU SANUSI, J.C.A.: I had the advantage of reading before now, the Judgment prepared by my noble Lord Tur, JCA, I have considered the argument proffered by the 1st Respondent on the preliminary objection challenging the competence of the grounds of appeal filed by the appellant at the lower court and also on the competence of the issues for determination raised on the grounds of appeal and the appellant’s response thereto. I endorse the reasoning and conclusion arrived at by my lord that the grounds of appeal and the issues raised on them are incompetent and deserve to be struck out. I accordingly strike out the 6 issues for determination and uphold the preliminary objection.
Having struck out the issues for determination, for being incompetent, and upholding the preliminary objection, I hereby strike out the appeal and NOT dismiss it. Having done so, I do not deem it necessary to consider the appeal or comment on its merit or otherwise.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the draft of the judgment of my learned brother, Joseph Tine Tur, JCA.
I agree with my learned brother that this appeal is devoid of merit and it ought to be dismissed. I also dismiss this appeal.
I abide by the order for costs in the lead judgment of my learned brother.
Appearances
E. A. Haruna, Esq. with I.E. Ekpa, Esq.; Shedrack Ekpa, Esq.; K. A. Agada, Esq. and Gabriel Ogbe, Esq. For Appellant
AND
P. A. Akubo, SAN, with J. K Ejiga, Esq. and Onuh Daniel, Esq. – For the 1st Respondent.
A. M. Okwori, Esq. – For the 2nd Respondent.
Zagana S. Gbaje, SLO (for INEC). – 3rd Respondent. For Respondent
