JOHN KAYODE FAYEMI v. ADEBAYO SEGUN ONI & ORS
(2019)LCN/12691(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2019
CA/EK/95/2018
RATIO
ORIGINATING SUMMONS: AMENDMENT OF ORIGINATING SUMMONS
“The amended Originating Summons takes effect right from the beginning of the suit as the Originating Summons that commenced the suit. See A-G Ekiti State V Adewunmi(2002) 1 SC 47 in which the Supreme Court restated the law point thusly The principle is that an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action would continue as if the amendment has been inserted from the beginning. See also Jatau V Ahmed (2003) 1 SC (pt.ii) 118 and FRN v. Adewunmi(2007) 4 SC(pt.iii) 30.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
WORDS AND INTERPRETATION: WHETHER THE COURT OF LAW CAN IMPORT INTO THE MEANING OF WORDS
“My firm answer is an emphatic NO. A Court of law is without power to import into the meaning of a word, clause or section of a statute something that it does not say, Bronik Motors Ltd & Ors v. Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt 886) 169 @ 209.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
JOHN KAYODE FAYEMI – Appellant(s)
AND
1. ADEBAYO SEGUN ONI
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment):
This appeal No. CA/EK/95/2018 was commenced on 21-12-2018 when the appellant herein filed a notice of appeal against the ruling of the Federal High Court of Nigeria, at Ado Ekiti rendered on 10-12-2018 by U.N Agomoh J in Suit No. FHC/ABJ/CS/663/2018. The notice of appeal contains 10 grounds of appeal.
All the parties herein filed, exchanged and adopted their respective briefs as follows- appellants brief, 1st respondents brief, 2nd respondents brief, 3rd respondents brief, appellants reply brief to 1st respondents brief, appellants reply brief to 2nd respondents brief.
The appellants brief raised the following issues for determination-
1. Whether the Originating Summons that activated the suit before the Lower Court was competent, having been issued without the requisite endorsement prescribed by the provision of Section 97 of the Sheriffs and Civil Process Act and whether an amendment of the said Originating process, an order of substituted service of same in Abuja and the change of the address for service on the Amended Originating Summons in the circumstance, can be said to have cured the fundamental infraction of Section 97 of the Sheriffs and Civil Process Act. (Grounds 1, 2, 3 and 4)
2. Whether the lower Court was right by relying on the cases of AKEREDOLU V. ABRAHAM and ZAKIRAI V. MUHAMMAD and came to the conclusion that the innovation in the Federal High Court (Civil Procedure) Rules 2009 has rendered the Sheriffs and Civil Process Act inapplicable in the Federal High Court when the latter Supreme Court decisions in the case of IZEZE V. INEC and PDP V. INEC and the case of the OWNERS of MV ARABELLA V. NAIC and several decisions of the Court of Appeal had settled the issue of the applicability of the Sheriffs and Civil Process Act in the Federal High Court. (Grounds 5 and 6)
3. Whether the lower Court was right by holding that it has jurisdiction to entertain the case, in spite of the clear admission of the 1st Respondent that Ekiti Governorship Primaries of the 2nd Respondent was conducted in strict compliance with the Constitution of the 2nd Respondent and its Guidelines. More so, when the fulcrum of the case of the 1st Respondent was the eligibility/qualification of the Appellant to participate in the primaries, which cannot be accommodated under Section 87 (9) of the Electoral Act 2010 (as amended) under which the suit was instituted.
The 1st respondents brief raised the following issues for determination-
1. Whether the dismissal of the Appellant Preliminary Objection to the competence of the Originating Summons in issue was not in the peculiar circumstances and facts of this case justified, particularly going by the Appellant who had predicated his Preliminary Objection on Section 97 of the Sheriffs and Civil Process Act concession that he has no ground to object to the service of the Originating Summons on him.
2. He adopted issue three as formulated and argued by the Appellant as his issue two.
3. Whether the lower Court was not justified in holding that the Appellant’s Preliminary Objection was unmeritorious and liable to be dismissed on the ground that the Appellant did not comply with Order 29 Rule 2 of the Federal High Court Civil Procedure Rules, 2009.
The 2nd respondents brief raised the following issues for determination-
1. Whether the Originating process of the Plaintiff/1st Respondent with which he initiated this action was competent notwithstanding the absence of the requisite endorsement prescribed by Section 97 of the Sheriff and Civil Process Act. (Grounds 1-6 in the Notice of Appeal)
2. Whether pursuant to the provisions of Section 87(9) of the Electoral Act, the lower Court has the jurisdiction to entertain the Plaintiff/1st Respondents claim premised on non-eligibility/qualification of the Appellant to participate in the primary election of the 2nd Respondent to determine its candidate for the election of governor of Ekiti State.
The 3rd respondents brief raised one issue for determination as follows- Whether this suit was duly properly and procedurally commenced at the Federal High Court in compliance with the provision of requisite statutes and Rules of Federal High Court of Nigeria.
The 1st respondent filed along with his brief a notice of preliminary objection with a written argument of same.
The issues raised for the determination of the preliminary objection are as follows-
1. Whether this Court can hear or countenance the issues raised in this appeal, the Appellant having not appealed against the findings of the lower Court that his failure to comply with the provision of Order 29 R 2 of the Federal High Court Civil Procedure Rules, 2009 in raising the preliminary objection, now the subject matter of this appeal, had robbed him of competence to argue the issues raised in this appeal.
2. Whether the Appellant who did not comply with the provisions of Order 29 Rule 2 Federal High Court Civil Procedure Rules, 2009 can raise the issues of jurisdiction of the lower Court to hear and determine the originating summons for the 1st Respondent through this appeal.
I will first determine this preliminary objection before delving into the merit of this appeal if need be.
I have carefully read and considered the arguments of the 1st respondent and the appellant on this objection.
The substance of the 1st respondents argument is that since there is no ground of this appeal complaining against the decision of the trial Court that the objection to the competence of the originating summons and the jurisdiction of the trial Court to entertain it is incompetent as it is not brought in compliance with Order 29 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009, this appeal is unarguable and incompetent.
Learned Counsel for the appellant argued that the trial Court decided that the objection being one on jurisdiction can be raised in any manner and must be resolved and then proceeded to determine the merit of the jurisdiction, that even if the appellant did not appeal against the decision of the trial Court that compliance with Order 29 Rule 2 of the Federal High Court (Civil Procedure) Rule 2009, he can still appeal against the merit of the dismissal of the objection, that the decision of the trial Court that the said Order 29 Rule 2 should have been complied with in bringing the objection, is rendered otiose by its later decision that the issue of jurisdiction can be raised in any manner, that the trial Court did not strike out or discountenance the preliminary objection and that the 1st respondents prayer to discountenance the preliminary objection was not granted by the trial Court.
The question thrown up by these arguments is, did the trial Court hold that the objection is incompetent and refused to hear it. The part of the ruling of the trial Court concerning what it decided reads thusly- The first defendant has now filed his preliminary objection for an order of Court to decline jurisdiction. The question is whether the above can be said to be a fulfilment of Order 29 Rule 2. Better still is what counsel said when he did not oppose the application for amendment and the Courts response, the memorandum of appearance stating that he is appearing conditionally which the rule said must be filed along with this application.
My firm answer is an emphatic NO. A Court of law is without power to import into the meaning of a word, clause or section of a statute something that it does not say, Bronik Motors Ltd & Ors v. Wema Bank Ltd (1983) 6 SC 158, (1983) 1 SCNLR 296; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt 886) 169 @ 209. What that rule says is simply file along with your application a memorandum of appearance stating that you are appearing conditionally. That was not done. Let me also say that I do not agree with learned counsel that the application referred to in this rule is motion on notice and not notice of preliminary objection and therefore his notice of preliminary objection is not an application. I do not agree with counsel as that rule did not say so in my humble view and counsel has not referred to any authority to that effect. I am of the view that an application can be motion exparte, motion on notice or notice of preliminary objection and I so hold. What the Supreme Court said in the PDP V INEC supra relied upon by Adeniyi Esq., per the erudite jurist Rhodes-Vivour JSC at pages 548 is, if the defendant does not follow the above procedure he cannot question the originating process or service on appeal.
It is the contention of Balogun Esq. relying on the decision of the apex Court in the case of Anyanwu v. Ogunewe & Ors (2014) LPELR 22184 SC that whenever and however the issue of jurisdiction is raised at the trial Court, that Court must resolve it one way or the other before proceeding with the substantive suit.
I have read the said decision of the apex Court in Anyanwu v Ogunewe & Ors supra and found it very instructive. The learned jurist Kekere-Ekun JSC held thus:
In so far as the jurisdiction of the Court has been challenged in whatever form, the Court must consider and resolve it before taking any further step in the matter.
Being properly guided by the above decision I will proceed to determine this issue of jurisdiction on the merit.
It is glaring that the trial Court decided that even though the objection to the originating summons and its jurisdiction to entertain it was brought in breach of Order 29 Rule 2 of the Federal High Court (Civil Procedure) Rules as the 1st defendant did not file a written memorandum of conditional appearance along with the objection, it would still proceed to determine the objection to its jurisdiction in view of the Supreme Court decision in Anyanwu v Ogunewe & Ors (2014) LPELR-22184 (SC) that in whatever manner the jurisdiction of a Court is challenged, that Court must consider and resolve it before taking any further step in the matter before it.
The argument of Learned Counsel for the 1st respondent that the trial Court found that, failure of the appellant to comply with Order 29 Rule 2 was fatal to his preliminary objection is not valid.
If the trial Court had found such noncompliance fatal to the competence of the preliminary objection, it would not have proceeded to determine its merit. So it is obvious that this objection of the 1st respondent in this appeal is based on a false suggestion that the trial Court had decided that the appellants preliminary objection in the trial Court was incompetent. Since the trial Court did not treat the non-compliance with Order 29 Rule 2 as fatal to the competence of the appellants preliminary objection, this objection to this appeal must fail. There was no basis for the appellant to have appealed against a decision the trial Court did not make.
Issue No. 1 of this preliminary objection is resolved in favour of the appellant.
Issue 2 is not arguable and is incompetent. The very question asked by this issue was determined and answered by the part of the ruling of the trial Court reproduced above and the 1st respondent has not appealed against it. The trial Court decided that even though the objection to the originating summons and its jurisdiction to entertain it was brought in breach of Order 29 Rule 2 of the Federal High Court (Civil Procedure) Rules as the 1st defendant did not file a written memorandum of conditional appearance along with the objection, it would still proceed to determine the objection to its jurisdiction in view of the Supreme Court decision in Anyanwu v Ogunewe & Ors (2014) LPELR-22184 (SC) that in whatever manner the jurisdiction of a Court is challenged, that Court must consider and resolve it before taking any further step in the matter before it. By not appealing against it, the 1st respondent accepted it as correct, conclusive and binding upon him and cannot therefore validly or competently argue contrary to it. See Iyoho v Effiong (2007) 4 SC (Pt. iii) 90, NBCI V Integrated Gas Nig Ltd & Anor (2005) LPELR ? 2016(SC) and Dabup V Kolo (1993) 12 SCNJ 1.
Issue No 2 of this objection is therefore incompetent and is hereby struck out.
On the whole the 1st respondents preliminary objection to this appeal fails and it is hereby dismissed.
Let me now proceed to determine the merit of this appeal. I prefer to do so on the basis of the issues raised for determination in the appellants brief.
Let me determine issues 1 and 2 together.
I have carefully read and considered the arguments of all sides on these issues.
Both sides agree on the following facts- The 1st respondent herein as claimant on 22-6-2018 filed an Originating Summons commencing suit No FHC/ABJ/CS/663/18 challenging the nomination of the appellant herein as the 2nd respondents candidate for the 14-7-2018 general election to the office of Governor of Ekiti State. The summons which was issued in the Federal High Court Registry at Abuja, stated the address for service of the Summons on the 1st defendant (appellant herein) as Isan Ekiti, Ekiti State or C/o Ekiti State APC Secretariat Ajilosun, Ado Ekiti. There was no endorsement on the Originating Summons that it was for service out of the Abuja Division of the trial Court on the 1st defendant in Ekiti as required by S.97 of the Sheriffs and Civil Process Act. By a motion exparte filed on 9-8-2018, the claimant applied for an order to serve the Originating Summons and other processes in the suit on the 1st defendant by substituted means. The said order of substituted service was granted on 20-8-2018. By a motion on notice filed on 5-9-2018, the claimant applied for amendment of the Originating Summons. During the hearing of this motion, Learned Counsel for the 1st defendant stated thusly-
“I do not oppose this motion. I defer my response on the validity of the question to our processes to the originating process. For now the amendment can go on.
The trial Court then granted the application and ordered the amendment of the Originating Summons. The amended Originating Summons was filed on 3-9-2018 in the Federal High Court Registry at Abuja. It stated the address for service on the 1st defendant therein as C/o All Progressive Congress, APC National Secretariat, No 40 Blantyre Street, Wuse II, Abuja FCT.
After being served the amended Originating Summons by substituted means, the 1st defendant on 24-9-2018 filed a notice of preliminary objection on the grounds that- The 1st Defendant Address for service subscribed on the Originating Summon issued on 22nd June, 2018 is: ISAN EKITI, EKITI STATE OR C/O EKITI STATE APC SECRETARIAT, AJILOSUN, ADO EKITI.
The Originating Summons was meant for Service on the 1st Defendant in EKITI STATE outside the Federal Capital Territory Abuja where the Originating Summons was issued.
The Originating Summons was issued without the requisite endorsement thereon to the effect that the Originating Process was issued in FCT Abuja and to be served on Dr. Kayode Fayemi in Isan Ekiti or Ado-Ekiti, EKITI STATE as required by the provision of Section 97 of the Sheriffs and Civil Process Act.
No leave of the Court is sought and obtained to issue without the requisite endorsement in accordance with Section 79 of the Sheriff and Civil Process Act and leave of Court is incurably bad and the Originating Process is liable to be struck out as the non-compliance robs the Court of the jurisdiction to entertain the matter.”
On 19-11-2018, the trial Court transferred the suit to the Ekiti Division of the trial Court.
After hearing all sides on the 1st defendants preliminary objection, the trial Court decided thusly- It is my firm view that when learned counsel for the 1st Defendant chose to file this Preliminary Objection on the 24th of September, 2018 and decided to rely on the Originating Summons that is no longer in existence by virtue of the order amending same, it was clearly an abuse of the process of this Court and I so hold. I have shown that the address of service of all the defendants in the Amendment Originating Summons which is the only originating process served in this case on the 1st defendant is an address in Abuja. The 1st Defendant from the records of Court was served by substituted means in the address in Abuja. As I stated earlier the only originating summons served on the 1st defendant is the Amended Originating Summons. It follows therefore that all the arguments on service outside jurisdiction is of no moment as the objector has relied on a non-existent process in raising this issue.
In view of the provisions of Order 6 Rule 31 of the Federal High Court Civil Procedure Rules 2009 that has defined out of jurisdiction to mean out of the Federal Republic of Nigeria, the provisions of Sheriffs and Civil Process ACT that deals with service outside jurisdiction does not have its applicability in processes filed in Federal High Court. I resolve this issue in favour of the claimant.
Learned Counsel for the appellant has argued that the trial Court was wrong to have held that by virtue of the relation back of the amendment of the originating summons, the amendment of the Originating Summons takes effect from the date the suit was commenced and is the Originating Summons that is relevant for all purposes in the suit and that the initial originating process that was amended ceased to have effect and is not a relevant process in the suit and cannot be relied on for any purpose. He further argued that the initial Originating Summons that was used to commence the suit was void for non-compliance with S.97 of the Sheriffs and Civil Process Act, that being a void process it cannot be amended and that its amendment and the resulting amended Originating Summons is void.
Learned Counsel for the 1st respondent argued in reply that endorsing the Originating Summons for service on the Appellant pursuant to an order for amendment and serving the Appellant in Abuja, a place within jurisdiction, pursuant to an order for substitute service were steps properly taken to cure the effect of non-endorsement, if any thereby curing the irregularity and voidability of the service of the Originating Summons before any service was effected on the Appellant, that without challenging or setting aside the order for substituted service or the order for the amendment of the Originating Summons, the appellant, cannot complain that the originating process was not endorsed for service outside jurisdiction, because the amended Originating Summons which was not endorsed for service on the 1st defendant outside jurisdiction was not served on him outside jurisdiction, that the amended Originating Summons was issued in the trial Court in Abuja for service on the 1st defendant in Abuja and was served on him in Abuja, that the decisions of PDP V INEC and Izeze v INEC are distinguishable from this case and therefore inapplicable here, that in PDP V. INEC the appellant was served in Abuja with a writ endorsed for service in Abuja but issued in Delta without the endorsement required by S.97 of the Sheriffs and Civil Process Act, that in Izeze v INEC the amended Originating Summons was issued in Delta but endorsed service in Abuja and that the defective Originating Summons had been served on the appellant before it was amended make it too late to cure the irregularity, that the case of the appellant would have come within the con of PDP V INEC and Izeze v INEC if the 1st respondent had served him in Ekiti a place outside jurisdiction without the endorsement before the amendment and order for substituted service, that the trial Court rightly relied on the decisions in Akeredolu v Abraham (2018) 10 NWLR (Pt 1628) 594 and Zakirai v Mohammed (2017) 17 NWLR (Pt 1594) 181.
Learned Counsel for the 2nd respondent argued that by the combined provision or Order 6 Rules 13-17 of the Federal High Court (Civil Procedure) Rules and Ss. 97 and 98 of the Sheriffs and Civil Process Act, it is the copy of the Originating Process to be served on a party out of jurisdiction of the trial Court that must be endorsed for service out of jurisdiction and not the copies to be served on parties within jurisdiction, that the Originating Summons is valid as regards parties within jurisdiction, that it is the Registrar of the trial court that should make the endorsement as to service out of jurisdiction and not the claimant, that the failure of the Registrar to endorse the Originating Process should be not visited on the claimant. For this last submission, he relied on this Courts decision in Davandy Fin & Sec Ltd v Aki (2015) LPELR 24495 (CA).
Learned Counsel for the 3rd respondent argued that the amendment and substituted service of the Originating Summons cannot confer jurisdiction on the Court when from the inception the matter was constituted in such a way that it lacked same, that a valid Originating Process is a condition precedent to the competence of the suit and the valid exercise of the Courts jurisdiction. He relied on the decision of this Court in Governing Council of NTI, Kaduna & Anor v Nasu (2018) LPELR 44557 (CA).
Let me determine the merits of the above arguments of all sides.
It is noteworthy that in the initial Originating Summons the address for service on the 2nd and 3rd defendants was in Abuja, only the 1st defendant had his address for service as Ado Ekiti in Ekiti State. So the endorsement of the Originating Summons for service out of jurisdiction as required by S.97 of the Sheriffs and Civil Process Act was not applicable to the 2nd and 3rd defendants. So the initial Originating Summons was valid in respect of the 2nd and 3rd defendants. Therefore, the absence of endorsement for service out of jurisdiction on the 1st defendant did not render the Originating Summons void as it is validly issued and served on the 2nd and 3rd defendants. If the 1st defendant was the sole defendant, then the absence of the endorsement on the Originating Summons for service on him at Ado Ekiti in Ekiti State out of the Federal Capital Territory Abuja, where the Originating Summons was issued for service on him at Ekiti, would have rendered it wholly void for non-compliance with S.97 of the Sheriffs and Civil Process Act and not amendable as no part of it would remain valid and amendable. Since the Originating Summons was validly issued and served on the 2nd and 3rd defendants, it can be amended in any respect, including changing the address for service on the 1st defendant to a place within Federal Capital Territory Abuja, to cure it of the omission relating to the 1st defendant. The omission did not affect the validity of the summons in respect of the 2nd and 3rd defendants. For this reason, I hold that the Supreme Court decision in Izeze v INEC (2018) NWLR (Pt. 1629) 110 and PDP V. INEC (2018) NWLR (Pt. 1634) 533 cannot apply in this case.
Since the initial Originating Summons was validly issued and served on the 2nd and 3rd defendants and therefore remained a valid process, its amendment was valid. The amended Originating Summons is valid. The initial Originating Summons having been amended, it ceases to exist and to have any effect as a process in the suit and no longer relevant for consideration in the suit. The amended Originating Summons takes effect right from the beginning of the suit as the Originating Summons that commenced the suit. See A-G Ekiti State V Adewunmi(2002) 1 SC 47 in which the Supreme Court restated the law point thusly The principle is that an amendment duly made takes effect from the date of the original document sought to be amended and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action would continue as if the amendment has been inserted from the beginning. See also Jatau V Ahmed (2003) 1 SC (pt.ii) 118 and FRN v. Adewunmi(2007) 4 SC(pt.iii) 30.
Since the initial Originating Summons has ceased to have any legal effect and does not exist as a relevant process in the suit, it cannot form the basis of any proceedings in the suit. Therefore the appellants objection to the competence of the Originating Summons and the jurisdiction of the trial Court on the basis of the initial Originating Summons is invalid.
Let me now determine Issue No. 3 which asks Whether the lower Court was right by holding that it has jurisdiction to entertain the case, in spite of the clear admission of the 1st Respondent that Ekiti Governorship Primaries of the 2nd Respondent was conducted in strict compliance with the Constitution of the 2nd Respondent and its Guidelines. More so, when the fulcrum of the case of the 1st Respondent was the eligibility/qualification of the Appellant to participate in the primaries, which cannot be accommodated under Section 87 (9) of the Electoral Act 2010 (as amended) under which the suit was instituted.
I have carefully read and considered the arguments of all sides on this issue.
Learned Counsel for the appellant argued that since the claimant had admitted in paragraph 26 of the affidavit in support of the Originating Summons that as a matter of fact the 2nd Defendant 5th and 12th May, 2018 organized Primary Election for the purpose of nominating candidate for the 14th July, 2014 Ekiti State Governorship election was conducted in line with the 2nd Defendant 2014 Constitution as amended and 2014 Guidelines for the Nomination of the candidate for public office, there is no basis or cause for the suit leading to this appeal, that a cursory reading of the questions for determination, the reliefs sought and the Affidavit in Support of the Originating Summons will reveal that the 1st Respondent was not challenging the process or the manner in which the primaries was conducted on any account of failure to abide by the procedural steps well highlighted under the Section 87(9) of the Electoral Act 2010 (as amended), and the Guidelines, that rather the 1st Respondent laboured strenuously to attack the eligibility/qualification of the Appellant who emerged victoriously, during the primary election with a very wide margin and became the flag bearer of the 2nd Respondent during the 14 July, 2018 Governorship Election and was duly elected and returned as the winner of the Governorship Election, that if from the showing of the 1st Respondent, there was nothing wrong with the conduct of the primary election, then there is no valid reason to initiate this action at the Federal High Court as the Court lacks the requisite vires to entertain this matter under Section 87(9) of the Electoral Act, which is the only basis for the 1st Respondent to invoke the jurisdiction of the lower Court.
Learned Counsel for the 1st respondent argued that the judicial authorities of Wushishi v Imam (2017) NWLR (Pt. 1597) 175 relied on by the appellant strengthens the case of the 1st respondent as it decides that once a person participates in a partys primary conducted strictly in accordance to the partys Constitution and Guidelines, he has the locus to insist and challenge or question any breach of the partys Constitution and Guidelines whether touching on the process, conduct or qualification/eligibility of other aspirants who participated in the primaries election with him, that the law donating the locus to the 1st Respondent as an aspirant who participated in the entire process to challenge any violation of the partys Constitution or Guidelines in any of the processes, including qualification to participate in the primary election is S.87(9) of the Electoral Act, 2010 as amended and the provision had been copiously interpreted and applied, that S.87(9) of the Electoral Act says an aspirant can seek redress in Court on any of the provisions of the partys Constitution and guidelines, that it does not limit the complaint to a particular breach, that law is law and rules are rules, that a breach of any provision of the Constitution and partys Guidelines made for all the process leading to the actual conduct of primary election, including but not limited to the rules and provisions touching on the eligibility of aspirants in the primaries is justiceable at the instance of any other aspirant who participated in the primary election, that in all the Appellant lengthily submission, it is nowhere demonstrated that the relevant provisions alleged to have been breach are not in the partys Constitution and Guidelines that strictly regulated the primary election in dispute.
It is also not the Appellants case that those provisions were not breached, that the 1st Respondent in this case, did not make any declaration like the one in PDP V. EZEONWUKA (Supra) in his Amended Originating Summons (page 167-172 of the record), that assuming the 1st Respondent even made it, that will not rob him of locus to seek redress in respect of isolated and itemized breaches of the partys Constitution and Guidelines, that the mere fact that the primary election was conducted in line with the Constitution and guideline of the APC does not cure the ineligibility of the Appellant as an aspirant who was not eligible ab-initio, that the case of PDP V EZEONWUKA (Supra) where the Appellant who did not allege any breach or violation of the partys Constitution and guidelines but rather sought declaration that he was the most qualified, authentic, duly elected, validly nominated and duly nominated candidate of the party out of all the other aspirants that participated in the primary election, is different from this case where the 1st Respondent had isolated and indentified specific violations and breaches of the partys Constitution and guidelines which are not denied.
Learned Counsel for the 2nd respondent argued that the question to be determined by this Court is whether the contention of the Claimant that the appellant was not eligible to participate in the primary election amounted to non compliance with the Guidelines of the 2nd respondent as envisaged in S.87(9) of the Electoral Act, that if a winner of the partys primary, is alleged to have breached any of the above qualification requirements, a co-contestant can challenge the result of the primary on the ground of non-compliance with the Partys Guidelines by the winner and the party, that by virtue of the provisions of Section 87(9) of the Electoral Act, the dissatisfied contestant has locus to approach the Court and the Court has the jurisdiction to entertain his case, that whether or not he will succeed to prove the non compliance is a different issue.
Let me now determine the merit of these arguments.
The cause for this action is stated in paragraphs 27 to 36 of the affidavit in support of the Originating Summons thusly- That compliance with the said 2nd Defendants party Constitution and Guidelines makes it mandatory for any member of the 2nd Defendant holding public office to resign from such public office or partly office to be eligible to participate in the 2nd Defendant organized primary election as aspirant for the purpose of nominating a candidate for public office Ekiti State.
That the 1st Defendant who was a public officer as a Federal Minister did not resign from his position as a serving Federal Minister 30 days to 5th May, 2018 when the 2nd Defendant primary election for the nomination of candidate for 14th July, 2018 Ekiti State Governorship election was originally fixed for 5th and or 12th May, 2018 when the said primary election was eventually held and 1st Defendant was purportedly declared and returned as the 2nd Defendants candidate for the said 14th July, 2018 Ekiti State Governorship election.
That the Claimant and most aspirants in that primary election honestly thought and believed that the 1st Defendant had resigned from his office as Federal Minister at least 30 days before 5th May, 2018 and or 12th May, 2018.
That the first admission that the 1st Defendant did not resign from his public office as a serving Federal Minister prior to and in fact participated in the said primary election as a serving Federal Minister came from the 1st Defendant himself while featuring on National Television, Channel, there and then he said he had not resigned two weeks after the primary election of 12th May, 2018 that produced him as a candidate for the 14th July, 2018 Ekiti State Governorship election.
That pursuant to paragraph 26 above, the 1st Defendant immediately after the primary of 12th May, 2018 was in office as Federal Minister and only resigned after he participated in Federal Executive Council meeting of 1st June, 2018 at a well-publicized ceremony. Some of the national daily newspaper that publicized the 1st Defendant resignation from office after taking part in FEC meeting of 1st June, 2018 are hereby attached as Exhibit F.
That the Claimant from the result of the primaries election of 12th May, 2018 organized by the 2nd Defendant for the purpose of nominating her candidate for the 14th July, 2018 Ekiti Governorship Election, informed me and I verily believe him that he is the person with the 2nd highest valid voted at the said primary election.
That the 1st Defendant participated in the 2nd Defendant primary election of 12th May, 2018 as aspirant notwithstanding the provisions of the 2nd Defendant 2014 Constitution and 2014 Guidelines for the Nomination of candidate for public office.
That the 2nd Defendant had forwarded the name of the 1st Defendant to the 3rd Defendant as her candidate for the 14th July, 2018 Ekiti State Governorship election.
That the Claimant came second to the 1st Defendant with the 2nd highest votes lawfully cast which is 481 votes.
That the Claimants name ought to have been forwarded by the 2nd Defendant to the 3rd Defendant as her candidate as aspirant with the highest lawful votes cast at the 12th May, 2018 2nd Defendant organized primary in view of the 1st Defendant failure to meet the minimum requirement for eligibility to participate in the said primaries.
The case of the 1st respondent in the amended Originating Summons and the affidavit in support is that the 2nd respondents Constitution and Guidelines stipulate that the holder of a public or party office shall resign from such public or party office before he can be eligible to participate in the partys primary election.
I agree with the submission of Learned Counsel for the 3rd respondent that the question to be determined by this Court is whether the contention of the Plaintiff/1st Respondent that the Appellant was not eligible or qualified to participate in the primary election amounted to non compliance with the relevant provisions of the Partys Guidelines.
The case of the 1st respondent is that the Guidelines of the respondent were not complied with in the selection or nomination of the appellant as the 2nd respondents Governor Candidate for the 14-7-2014 general election to the office of the Governor of Ekiti State. The part of the Guidelines alleged to have been breached is Article 2 of the 2nd Respondents Guidelines which provide thusly- In conformity with the Constitution of the Federal Republic of Nigeria 1999. The party prescribes that any aspirant seeking public office on the platform of the party shall not have:
Remained as an employee of the Public Service within thirty (30) days preceding the date of an election.
Been convicted for embezzlement or fraud by a judicial Commission of Inquiry or Tribunal
The case as framed and presented by the 1st respondent falls within the cause for the action under S.87(9) of the Electoral Act in that it contends that the provisions of the above Guidelines have not been complied with in the nomination of the appellant as the Governorship candidate of the 2nd respondent for the 14th July 2018 general election of Governor of Ekiti State. S. 87(9) of the Electoral Act provides thusly- Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
What is of relevant consideration here is the case of the 1st respondent that the Article 2 of the 2014 Guidelines was not complied with in the nomination of the appellant as a candidate of the 2nd respondent. This is what brings the case within the purview of the course of action created by S.87(9) of the Electoral Act. See Shinkafi & Anor vs Yari & Ors (2016) 1 SC (Pt 11) page 1: Daniel v. INEC (2015) 9 NWLR (Pt 1463) 113 at 115, 116-157, PDP v. Sylva (2012) 13 NWLR (Pt 1316) 85; Lado v. CPC (2011) 18 NWLR (Pt.1279) 689; Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556. The several authorities which have decided that a claim founded on the issue of eligibility or qualification of the nominated candidate cannot be brought under S.87(9) of the Electoral Act cannot apply to this case which clearly is founded on noncompliance with the Guidelines of the 2nd respondent in the nomination of the appellant as its candidate for the relevant election, the reason for the noncompliance with the Guidelines notwithstanding.
If paragraph 26 of the affidavit in support of the summons is read together with the other parts of the affidavit reproduced herein, it would be seen that the 1st respondent did not admit that the appellant was nominated as 2nd respondents candidate in strict compliance with the Guidelines of the 2nd respondent. It is clear from the totality of the affidavit in support of the Originating Summon that the 1st respondent did not admit that the appellant was nominated as 2nd respondents candidate in strict compliance with the Guidelines of the 2nd respondent. So the decision in PDP v. EZEONWUKA (2018) 3 NWLR (Pt. 1606) 187 based on a clear admission by the claimant that the Guidelines be complied with in the nomination of a candidate cannot apply in this case in which the claimant is contending that the Guidelines were not complied with in the nomination of the appellant as candidate. Issue No. 3 in the appellants brief which is framed and argued on the basis that the 1st respondent so admitted, is invalid as it proceeds on a false premise.
The question whether the appellant was eligible to participate in the partys primary election for the nomination of its Governorship candidate for an election, without having first resigned from public or party office before the primary election as required by Article 2 of the partys Guidelines is part of the merit of the case presented by the 1st respondent and therefore cannot be determined as a preliminary issue outside the merit of the case the 1st respondent has presented.
In the light of the foregoing, issue No. 3 is resolved in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The ruling of the Federal High Court of Nigeria at Ado Ekiti delivered on 10-12-2018 in Suit No. FHC/ABJ/CS/663/2018 by U.N. Agomoh J is hereby affirmed and upheld.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is lacking in merit.
I adopt the said judgment as mine, and join my brother in dismissing the appeal. I adopt all consequential orders made.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasonings and conclusion reached therein. I have nothing to add. I too dismiss the appeal as unmeritorious.
Appearances:
Chief R.O. Balogun, Esq. with him, A.S. Aribasoye, Esq. and Samson Ayodeji Aina,Esq.For Appellant(s)
Chief A.A. Adeniyi, Esq. with him, Niyi Idowu, Esq., Gani Faniyi, Esq., Polycarp Nwachukwu, Esq., Adetunji Oso, Esq., Sanni Yakubu, Esq., Dr. Ife Arowosoge, Esq., Umar Abdulhameed, Esq., Kariakitei Kokowei, Esq., S.B. Oladeinde, Esq., Abiodun Ajibade, Esq., Omotayo Oloruntoba, Esq., Michael Olaleye, Esq., Tolu Olowoyo, Esq. for 1st Respondent.
Lawal Pedro, SAN with him, A.P. Ameh, Esq., C.O. Oni, Esq., T.O. Sanni, Esq., for the 2nd Respondent.
Chief J. Akingbola Akinola, Esq. with him, F.O. Akogun, Esq. for 3rd RespondentFor Respondent(s)
