AKINREMI & ANOR v. SULEIMAN & ORS
(2022)LCN/16152(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 17, 2022
CA/ABJ/CV/1020/2021
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. HON. OLAYIDE ADEWALE AKINREMI 2. SENATOR ABBA ALI (The 2nd -5th Appellants For Themselves & On Behalf Of The APC Caretaker/Extraordinary Convention Planning Committee) APPELANT(S)
And
MUTTAKA BALA SULEIMAN – 17, 908 ORS 17909. ALL PROGRESSIVES CONGRESS 17910. H.E. MAI MALA BUNI 17911. SENATOR JOHN JAMES AKPANUDOEDEHE 17912. DR. TONY MACFOY 17913. BARR. AUWALU ABDULLAHI 17914. USMAN MUSA KAITA 17915. ADEBAYO IYANIWURA 17916. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A CLAIMANT SUES IN A DUAL CAPACITY
Now where a Claimant sues in a dual capacity, as in this case, the Court in deciding the case cannot dismiss it simply because he has failed to make out his case in one of those capacities.
If he fails in one capacity but makes out a case in the other, judgment can be properly entered for him in that capacity…”
See also Beswick V. Beswick (1968) AC 58, a case in which one Mrs. Beswick, the Respondent had sued both in her personal capacity as well as the Administratix of her late husband Peter Beswick to enforce a contract made between her husband and his nephew, the Appellant, John Joseph Beswick, by which she was made a beneficiary. Lord Denning MR., had held inter alia on appeal that the Respondent entitled to sue to enforce the contract both in her personal capacity and in her capacity as Administratix. On further appeal, the House of Lords held inter alia that the Respondent, Mrs. Beswick could sue, and properly sued, to enforce the contract in her other capacity as Administratix of her husband’s estate, he being a party to the contract. PER GEORGEWLL, J.C.A.
THE MEANING OF THE TERM “ABUSE OF COURT PROCESS”
I now come to the issue of abuse of Court process. The term ‘abuse of Court process’ has over the years itself suffered abuse by legal practitioners, who without any basis readily drags it into any discourse once there are two or more actions or applications pending before a Court even without considering the factors that would render an action or application an abuse of Court process. Abuse of Court process simply put, and for lack of a precise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Georgewill JCA. See also Dana Airlines Ltd V. Yusuf &ors (2017) LPELR 43051 (CA) per Georgewill JCA.
However, some guidelines were laid down by the apex Court in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 at p. 188, where the Supreme Court had opined inter alia thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions…It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”
See also Ziklagsis Network Ltd .V. Adebiyi & ors (2017) LPELR- 42899 (CA), per Georgewill JCA; Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69. PER GEORGEWLL, J.C.A.
THE PRINCIPLE THAT COURTS SHOULD RENDER SUBSTANTIAL JUSTICE OVER TECHNICAL JUSTICE
In Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) at pp. 119 – 121, this Court had per Georgewill JCA, stated inter alia thus:
“These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, the stance of the Court below, and sought to be justified in this appeal by the learned counsel for the 1st Respondent under issue five, resonates more with undue technicality than with substance and justice! The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king!”
See also Yusuf V. Adegoke (2007) LPELR – 3534 (SC); Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 at pp. 142-1 43; U.TC. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244; Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; Chief Adebisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR – 22799 (CA). PER GEORGEWLL, J.C.A
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory Abuja, Coram: Hamza Mu’azu J, in Suit No. FCT/HC/CV/2030/2021: Muttaka Bala Sulaiman & 17, 907 Ors V. All Progressive Congress & Ors delivered on 30/11/2021, in which the Claims of the 1st – 17908th Respondents as Claimants were granted against the Appellants as 4th – 5th Defendants and 17, 909 – 17, 916th Respondents as 3rd, 6th – 10th Defendants.
The Appellants, who were the 4th & 5th Defendants before the Court below, were peeved by the said judgment and had promptly appealed against it vide their Notice of Appeal filed on 6/12/2021 on sixteen grounds of appeal. See pages 6648 – 6967 of the Record of Appeal.
The Records of Appeal were duly compiled and transmitted to this Court on 20/12/2021 in six Volumes. On 18/1/2022, the 1st – 17, 908th Respondents filed a Notice of Preliminary objection challenging the competence of the Notice of Appeal. The Appellants’’ brief was filed on 24/12/2021. The 1st – 17, 908th Respondents’ brief was filed on 18/1/2022. The Appellants’ Reply brief was filed on 19/1/2022.
At the hearing of the appeal on 21/1/2022, Nureini Jimoh SAN and Ibrahim Idris SAN, learned Senior Advocates for the 1st – 17, 908th Respondents, appearing with Osita Anene Esq., and Abdulhafees D. Khalid Esq., adopted part of the 1st – 17, 908th Respondents brief as their arguments in support of the preliminary objection and urged the Court to strike out the Notice of Appeal for being incompetent. Chief M. N. Duru, learned counsel for the Appellants, appearing with Ibrahim Aliyu Nassarawa Esq., and Adekunle Taiye Falola Esq., adopted part of the Appellants’ Reply brief as their arguments in opposition to the preliminary objection and urged the Court to dismiss the preliminary objection for lacking in merit.
On their part, Abdul Adamu Esq, learned counsel for the 17, 909th – 17, 911th Respondents, appearing with Suleiman Gezawa Esq, did not file any brief and had nothing to urge.
On their part, Sir Steve Adehi SAN and Prof Josephine Agbonika SAN, learned Senior Advocates for the 17, 912nd – 17, 915th Respondents, appearing with Wale Babalola Esq., and Martins F. Ekpah Esq., did not file any brief and had nothing to urge. On their part, Bashir M. Abubakar Esq, learned counsel for the 17, 916th Respondent, appearing with S. M. Danbaba Esq, did not file any brief and had nothing to urge.
In the main appeal, Chief M. N. Duru, learned counsel for the Appellants, appearing with Ibrahim Aliyu Nassarawa Esq., and Adekunle Taiye Falola Esq., adopted the Appellants’ Brief and Reply brief as their arguments in support of the appeal and urged the Court to allow the appeal and set aside the judgment of the Court below.
On their part, Nureini Jimoh SAN and Ibrahim Idris SAN, learned Senior Advocates for the 1st – 17, 908th Respondents, appearing with Osita Anene Esq., and Abdulhafees D. Khalid Esq., adopted the 1st – 17, 908th Respondents brief as their arguments against the appeal and urged the Court to dismiss the apepal for lacking in merit.
On their part, Abdul Adamu Esq, learned counsel for the 17, 909th – 17, 911th Respondents, appearing with Suleiman Gezawa Esq, did not file any brief and had nothing to urge. On their part, Sir Steve Adehi SAN and Prof Josephine Agbonika SAN, learned Senior Advocates for the 17, 912nd – 17, 915th Respondents, appearing with Wale Babalola Esq., and Martins F. Ekpah Esq., did not file any brief and had nothing to urge. On their part, Bashir M. Abubakar Esq, learned counsel for the 17, 916th Respondent, appearing with S. M. Danbaba Esq, did not file any brief and had nothing to urge.
By an Originating Summons filed before the Court below, the 1st – 17, 908th Respondents as Claimants claimed against the Appellants as the 4th – 5th Defendants and 17, 909 – 17, 916th Respondents as 2nd, 3rd, 6th – 10th Defendants, inter alia a Declaration that the Defendants’ decision and or action or proposal not to recognize the Plaintiffs as the duly, validly, properly, authentically and democratically elected and ought to be recognized by the Defendants and seeking an Order directing the Defendants to adopt, recognize and rely on the summary result sheet for Ward Congress, elected delegates and State Delegates submitted at the 1st Defendant’s Office in FCT, Abuja consisting of the Plaintiffs’ names as the only valid and authentic delegates qualified to participate in the forthcoming primary elections of the 1st Defendant. See pages 104 – 364 in Volume 1 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
At the Court below, the Appellants who were the 4th & 5th Defendants were jointly sued with the 17, 910th & 17,911th Respondents as 2nd & 3rd Defendants for themselves and on behalf of the APC/Caretaker Extraordinary Convention Planning Committee (CECPC), while the 17,912th – 17, 915th Respondents were sued for themselves and on behalf of the Ward Congress Committee (WCC) for Kano State.
The gist of the case of the 1st – 17908th Respondents before the Court below as can be gleaned from their affidavit, further and better affidavit and documentary Exhibits as in the Record of Appeal was that the 17909th – 17911th Respondents set up a 7 – Man Ward Congress Committee, the WCC, to conduct the Ward Congress in Kano State in compliance with the APC Constitution & Guidelines and the Electoral Act 2010. The WCC conducted the election and the 1st – 17908th Respondents took forms, participated at the election of 31/7/2021 and won the said election. Consequently, they wrote a Report as in Exhibit F on the election and submitted the Results as in Exhibits J Series along with the Report.
The Appellants and the 17909 – 17911th Respondents, who were the 1st – 5th Defendants before the Court below, acknowledged and accepted the Report by stamping it. However, contrary to the Electoral Act 2010, the APC Constitution and the Guidelines, the Appellants and the 17909th – 17916th Respondents had on 26/7/2021 issued a Press Statement as in Exhibit H1 where the ‘Stakeholders’ agreed that the election will not be conducted and as a result a false Report was written as in Exhibit G with seven names, including fresh three names of persons who are not part of the 7 – Man WCC listed in Exhibit B but were used to replace the three genuine members of the WCC Courtesy of the so called ‘State Congress Committee’ and whose false Report as in Exhibit G did not show any Result, hence the action by the 1st – 17908th Respondents to seek their recognition by the Appellants and the 17, 909 – 17916th as those duly elected from the Ward Congress Election of 31/7/2021 for Kano State APC.
The gist of the case of the Appellants and the 17, 909th – 17, 915th Respondents was that on 29/7/2021, the APC the 17, 909th Respondent, approved the appointment of a 7 – Man Ward Congress Committee vide its’ letter as in Exhibit B dated 29/7/2021 and signed by one Senator John James Akpanudoedehe, Ph. D, the 17, 911th Respondent, the National Secretary, Caretaker/Extraordinary Convention Planning Committee with one, Dr. Tony Macfoye, the 17, 912th Respondent as Chairman and one Barr. Auwalu Abdullahi, the 17, 913th Respondents Secretary and Usman Musa Kaita the 17,914th Respondent and Adebayo Iyaniwura the 17, 915th Respondents as members, to superintend the APC Ward Congress to be held in 484 Wards in Kano State.
On 31/7/2021 the APC conducted its Ward Congress for the 484 Wards in Kano State. The Ward Congresses was successfully conducted by the WCC and supervised by INEC, the 17, 916th Respondent in the 484 Wards in Kano State in strict compliance with Article 20(1)(a) of the APC constitution and Part A of the Mode of Elections at the Ward Congress, APC’s Guidelines for Ward Congresses 2021. The 17, 916th Respondent, INEC supervised and issued its various Reports which were duly certified as in Exhibits MND3 – MND46.
Curiously, the 17, 914th and 17, 915th Respondents who were merely members of the WCC, but who did not travel to Kano State for the assignment and were replaced by Alhaji Ibrahim Shehu, Barrister Yakubu Kirfi and Mustapha Abdu Saulawa as in the Report in Exhibit G, working hand in gloves with the 1st – 17, 908th Respondents had surreptitiously and falsely signed Exhibit F, relied upon by the 1st – 17, 908th Respondents purportedly as Chairman and Secretary without the authority of the 17, 912th and 17, 913th Respondents, who are the undisputed Chairman and Secretary of the WCC. The APC, the 17, 909th Respondent, duly received and accepted the Report as in Exhibit G, which was duly signed and authenticated by the 17, 912th and 17, 913th Respondents, the Chairman and Secretary of the WCC, as in Exhibit G accompanied with Exhibits MND3 – MND46, whilst it outrightly rejected the Report in Exhibits F and J – Series as falsely authored by the impostors, the 17, 914 and 17, 915th Respondents.
The parties filed and exchanged affidavits, counter affidavits and further and better affidavits in the originating summons before the Court below. The 1st – 17, 908th Respondents as Claimants filed their affidavit in support with the Originating Summons. The 17, 909th – 17, 91th Respondents’ Joint Counter – affidavit was filed on 17/9/2021. See pages 383 – 402 in Volume 1 of the Record of Appeal. The 1st – 17, 908th Respondents’ Further and Better Affidavit was filed on 28/9/2021. See ages 430 – 437 in Volume 1 of the Record of Appeal. The 17, 914th – 17, 915th Respondents’ Joint Counter – affidavit was filed on 17/9/2021. See pages 410 – 429 in Volume 1 of the Record of Appeal. The 1st – 17,908th Respondents’ Further and Better Affidavit was filed on 28/9/2021. See pages 403 – 409 in Volume 1 of the Record of Appeal. The Appellants’ joint Counter – affidavit was filed on 14/10/ 2021. See pages 410 – 429 in Volume 1 of the Record of Appeal. The 1st – 17, 908th Respondents’ Further and Better Affidavit was filed 18/10/2021. See pages 933 – 947, Volume 1 of the Record of Appeal. In additions, several preliminary objections were also filed and responded to between the parties.
At the hearing, the Court below heard all the Preliminary Objections and Originating Summons together and on 31/11/2021 it delivered its judgment, in which it dismissed all the preliminary objections and granted the claims of the 1st – 17, 908th Respondents as Claimants against the Appellants as 4th & 5th Defendants and the 17909th – 17916th Respondents as 1st – 3rd and 6th – 10th Defendants, hence the appeal. See pages 6563 – 6647 and 6648 – 6967 in Volume 7 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, eight issues were distilled as arising for determination from the sixteen grounds of appeal, namely:
1. Whether or not the Court below was not wrong in assuming jurisdiction by holding that the 1st – 17, 908th Respondents’ Suit was a Pre – election matter within the ambit of Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 87 (9) of the Electoral Act, 2010 (as amended)? (Distilled from Ground 1)
2. Whether or not the Court below was not wrong in determining the 1st – 17, 908th Respondents’ Suit bordering on internal processes of a political party which is non-justiciable? (Distilled from Grounds 2 and 4 )
3. Whether or not the Court below was not wrong in determining the 1st – 17, 908th Respondents’ Suit when it has no requisite territorial jurisdiction to determine the matter? (Distilled from Ground 3)
4. Whether or not the Court below was not wrong when it held that the 1st – 17, 908th Respondents had locus standi to institute the action? (Distilled from Ground 5)
5. Whether or not the Court below improperly evaluated the evidence adduced by the Appellants and thus came to a wrongful conclusion that adversely affected the case of the Appellants? (Distilled from Grounds 7, 8, 9, 11, 12, 14 and 15)
6. Whether or not from the facts and circumstances of this matter, the Court below was not wrong when he found in favour of the 1st – 17, 908th Respondents to this matter? (Distilled from Grounds 13 and 16)
7. Whether or not the Court below was not wrong when it overruled the objection of the Appellants on grounds of non – joinder of necessary and affected parties? (Distilled from Ground 10)
8. Whether or not the Court below not wrong in holding that the plenary trial was not required to resolve the copious affidavit and documentary evidence adduced by parties before it? (Distilled from Ground 6)
In the 1st – 17908th Respondents’ brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Appellants’ objections were not rightly dismissed? (Distilled from Grounds 1, 2, 3, 4, 5, 6 & 10)
2. Whether the findings and orders of the Court below in this Suit are not in accordance with facts/evidence before it and or without basis? (Distilled from Grounds 7, 8, 9, 11, 12, 13, 14, 15 & 16)
I have taken time to consider and evaluate the depositions in the affidavits, counter affidavit, further and better affidavit and documentary Exhibits relied upon by the parties as in the Records of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment appealed against and I am of the view that the proper issues arising for determination in this appeal are the eight issues as distilled in the Appellants’ brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the 1st – 17908th Respondents’ brief.
But, first there is a Notice of Preliminary objection filed by the 1st – 17908th Respondents on 18/1/2022 challenging the competence of the Notice of Appeal.
In law, the preliminary objection touching on the competence or otherwise of the Notice of Appeal is a serious matter and therefore, must first be considered and resolved one way or the other before, and if need be, the substantive appeal is considered and resolved according to law. I shall therefore, proceed to a consideration of the Respondent’s Notice of Preliminary objection anon!
RULING ON THE RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 18/1/2022, the 1st – 17908th Respondents are challenging the competence of the Notice of Appeal on the following grounds, namely; that the Appellants were sued jointly with the 17, 910th – 17, 911th Respondents as Defendants for themselves & on behalf of the APC Caretaker/Extraordinary Convention Planning but are now listed as only two Appellants contrary to the four Defendants in the Originating Summons; the Appellants cannot appeal separately or file an appeal against the 17, 910th & 17, 911th Respondents as they were sued as joint representatives of APC, the 17, 909th Respondent since they cannot be Appellants and Respondents in the same appeal; the appeal is an abuse of Court process in that the Appellants had split the appeal by filing this appeal against another appeal against the same judgment between the same parties and same subject matter; the names of the Original 127th – 6470th Claimants had been changed; the capacity/status of 17, 910th & 17, 911th Respondents had been removed and thereby altering their capacity; the status/capacity of the 17, 912th – 17, 915th Respondents sued for themselves and members of the APC Ward Congress Committee for Kano State had been removed and thereby altering their capacity; the appeal has no utilitarian value to the Appellants and that the appeal is incompetent.
RESPONDENT’S COUNSEL SUBMISSIONS
In support of the preliminary objection, learned Senior Advocate for the 1st – 17908th Respondents had submitted that by Order 7 Rule 2(1) of the Court of Appeal Rules 2021, a notice of appeal, application for leave to appeal, briefs and all other documents shall reflect the same title since an appeal is a continuation of the case from the Court below and contended that any change in these processes can only be permitted by leave of this Court and urged the Court to hold the changes in the names and capacities of the parties without the prior leave of this Court rendered all such processes incompetent since the Appellants, who were jointly sued as representatives, cannot maintain this appeal in an individual capacities and thus amounting to an abuse of Court process and thereby robbed this Court of its jurisdiction to hear and determine this appeal on the merit and to strike out the notice of appeal for being incompetent. Learned SAN relied on Apeh V. PDP (2016) All FWLR (Pt. 824) 1 at p. 16; Nteile V. Irawaji (2021) 6 NWLR (Pt 1803) 411; PDP & Ors V. Dayo & Ors (2013) LPELR – 20794(CA); In Re: Apeh & Ors (2016)1-2 SC (Pt. IV) 60; Sapo & Ors V. Sunmonu (2010) 11NWLR (Pt. 1205) 374; Dike – Ogu & Ors V. Amadi & Ors (2008)12NWLR (Pt. 1102) 650; Ekennia V. Nkpakara & Ors; Ladoja V. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Adesemowo V. Kassim (2021) 18 NWLR (Pt. 1807) 115; PPA V. INEC (2012) 13 NWLR (Pt. 1317) 215 at p. a237; Shining Stars Nig. Ltd V. AKS Steel Nig. Ltd. (2011) 4 NWLR (Pt. 1238) 596.
It was also submitted that the representative capacity of the 17, 912th – 17 915th Respondents was also removed in this appeal and therefore potentially distorting the capacity and standing of those parties in this appeal and impugns on the validity of the originating process before this Court and contended that the 127th – 6470th Respondents names are different from the names of the 127th – 6470th Claimants before the Court below contrary to the mandatory provisions of the Rules of this Court that all the processes must reflect the same title and parties and urged the Court to hold that such differences in names and title are fatal and rendered the notice of appeal incompetent and thus liable to be struck out. Learned SAN relied on Nteile V. Irawaji (2021) 16 NWLR (Pt. 1803) 411 at pp. 447B – 448; Ladoja V. Ajimobi (2016) 10 NWLR (Pt. 1519) 88; PPA V. INEC (2012) 13 NWLR (Pt. 1317) 215.
It was further submitted that the appeal is merely academic and has no utilitarian value to the Appellants and is thus liable to be terminated in that the alleged and imaginary winners of the Ward Congress of the APC Kano State are not parties and contended that the Appellants, not being the alleged winners, have no tangible benefits from the outcome of this appeal having nothing at stake and urged the Court to hold that in law it is not the duty of the Court to entertain and resolve academic questions but to hear and determine live issues which confers some benefits to the Appellants and to strike out the appeal for being of no utilitarian value to the Appellants but is merely an ego trip. Learned SAN relied on Festus V. AAC (2020) 4 NWLR (Pt. 1714) CA 276; Sanwo – Olu V. Asuquo (2020) 11 NWLR (Pt. 1736) SC 458; PDP V. APC (2020) 9 NWLR (Pt. 1730) 425; Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379; Anyanwu V. PDP (2020) 3 NWLR (Pt. 1710) 134 at p. 176; Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor (2021) LPELR – 54833 (CA); Multichoice (Nig) Ltd V. MCSN Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415 at pp. 515 – 516; Lawson V. Okoronkwo & Ors (2018) LPELR – 46356; Plateau State V. A.G. Federation (2006) All FWLR (Pt. 305) 590 at pp. 646 – 637; Nweke V. INEC & Ors. (2016) LPELR – 41254 (CA).
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Counsel for the Appellants had submitted that the Originating Process filed by the 1st – 17,908th Respondents bears the names and capacity in which the Appellants were sued ‘for themselves and on behalf of APC Caretaker Extra-ordinary Planning’ and contended that in law they were sued in dual capacities, individually and as representatives, and defended the action in that dual capacities and urged the Court to hold that the 1st – 17908th Respondents, who had on their own volition sued the Appellants in dual capacities and were thus not misled by one of the dual capacities in which the appeal was filed, cannot be allowed to approbate and reprobate to argue that the parties they sued in dual capacities cannot appeal in any one of the dual capacities and to dismiss the preliminary objection for lacking in merit. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Ajide V. Kelani (1985) NWLR (Pt. 12) 248 at p. 269.
It was also submitted that in the separate and distinct individual and representative capacities, in which the Appellants were sued by the 1st – 17908th Respondents, they were vested with the right of appeal in either one or both of the dual capacities in which they were sued and contended that the right of appeal is fundamental and constitutional and urged the Court to hold that the Appellants being parties to the Originating Summons have the right of appeal against the judgment of the Court below as of right, which right they had validly exercised in this appeal and to dismiss the preliminary objection for being misconceived and lacking in substance and to determine the rights of the parties in this appeal on the merit. Counsel referred to Section 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Anthony V. Elias & Anor (2017) LPELR – 45027 (CA); Odedo V. PDP (2015) LPELR – 24738 (SC); Kogi State House of Assembly V. PDP (2015) LPELR – 24738 (SC).
It was further submitted that the provisions of Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 did not, as erroneously submitted for the 1st – 1708th Respondents/Objectors, provide that the arrangement of the names of parties before the Court below must be the same in this Court and contended that the arrangement of the names of parties will depend on who is aggrieved and is appealing against the judgment, who will then be listed as the Appellants and all the other parties will be listed as Respondents, notwithstanding whether they were Defendants or Claimants before the Court below and urged the Court to hold that in law such Respondents are regarded as nominal parties, being parties before the Court below, and to dismiss the preliminary objection for lacking in substance.
It was also further submitted that there is no aspect of this appeal that constitutes an abuse of Court process in that the other appeal in Appeal No. CA/ABJ/CV/1034/2021 emanating from the same judgment of the Court below is one filed by different persons other than the Appellants and therefore, cannot by any imagination render this appeal, even filed earlier, an abuse of Court process and urged the Curt to hold that the Appellants in both appeals having been sued in their individual and representative capacities by the 1st – 17, 908th Respondents had the unfettered constitutional rights to appeal individually, separately or jointly and to dismiss the preliminary objection for lacking in substance.
It was also submitted that the 1st – 17, 908th Respondents were not mistaken or misled as to the fact that it was their names that was stated on the Appellants’ Notice of Appeal, even if in some pages their names were abbreviated by the printer’s devil, and contended that such occurrence in stating the names of parties running into over 17, 908 persons amounts clearly to a mere misnomer and urged the Court to hold that such misnomer, which did not in any way misled the 1st – 17, 908th Respondents, cannot in law vitiate or invalidate the otherwise valid appeal as filed by the Appellants and to dismiss the preliminary objection for lacking in substance and chasing mere shadows and to render substantial justice by determining the rights of the parties in the appeal on the merit. Counsel relied on Nnamdi Azikiwe University V. Gloria Ukamaka Nwokoye & Anor (2018) 18 CAR 38; Nwole V. Iwuagwu (2004) 15 NWLR (Pt. 895) 61 at pp. 81 – 82; Owuru V. INEC (1999) 10 NWLR (Pt. 622) 201; Abubakar V. Yar’adua (2008) 4 NWLR (Pt. 1078) 465; Odon V. Barigha – Amange (No. 2) (2010) 12 NWLR (Pt. 1207) 13 at p. 65; Aregbesola V. Oyinlola (2009) 14 NWLR (Pt. 1162) 492 and Lasun V. Awoyemi (2009) 16 NWLR (Pt. 1168) 513; Ukiri V. Geco-Prakla (Nig.) Ltd (2010) 6 – 7 SC 192; Ajuwa V. SPDCN Ltd. (2011) 12 SC (Pt. IV) 118; Adelusola V. Akinade (2004) 5 SCM 1; Abubakar V. Nasamu (2011) 11 – 12 SC (Pt. I).
RESOLUTION OF THE PRELIMINARY OBJECTION
The 1st – 17908th Respondents filed an Affidavit in support of their notice of preliminary objection on 18/1/2022, annexed to which were several documents as Exhibits. In response, the Appellants filed their Counter Affidavit on 20/1/2022 annexed to which are some documents as Exhibits. I have taken time to consider and evaluate the depositions in these affidavit and counter affidavit and scrutinized the documents annexed as Exhibits by the parties.
In the affidavit in support of the preliminary objection deposed to by the 1st Respondent it was stated inter alia that neither the 1st – 17, 908th Respondents nor their counsel were served with the Notice of Appeal, which was merely left at the contact law office at Jabi, FCT Abuja used by their Solicitors as address within jurisdiction without authority from them. The rest of the depositions merely repeated the grounds of the preliminary objection. In the Appellants’ counter affidavit deposed to by one Naziru H. Abdullahi it was stated inter alia that the 1st – 17, 908th Respondents were duly served with the Notice of Appeal as shown in Exhibits MND 1 and as admitted by them on 13/1/2022 before the Court below. The Appellants were sued in dual capacities for themselves and on behalf of the APC Caretaker/Extra-ordinary Ordinary Planning Committee and that the Appellants are parties named in the 1st – 17, 908th Respondents’ Originating Summons.
My lords, the preliminary objection raised an admixture of issues ranging from capacities of the Appellants, to abuse of Court process, and to alteration of the parties on record from the parties before the Court below. I intend to consider these issues in no particular order but shall cover all of them and resolve them one way or the other.
I have taken a calm look at the Originating Summons filed by the 1st – 17, 908th Respondents and in it I can see that the Appellants were sued ‘for themselves and on behalf of APC Caretaker Extra-ordinary Planning’, which clearly implies they were sued in dual capacities. I can also see that it was in these dual capacities, both individually and as representatives that they defended the action before the Court below. In the circumstances, can it be right as contended by the 1st – 17, 908th Respondents that the Appellants can only appeal against the judgment of the Court below in one of the dual capacities in which they were sued? I think not!
Indeed, I cannot even see how the 1st – 17908th Respondents, who had on their own volition sued the Appellants in dual capacities, could be misled by the Appellants appealing in their individual capacity, which is one of the dual capacities in which they were sued.
In law, the 1st – 17, 908th Respondents having on their own volition sued the Appellants in dual capacities cannot now turn around to contend that the Appellants must act only in one of the separate and distinct dual capacities in which they were sued by them. The 1st – 17, 908th Respondents must endeavor to be consistent. Indeed, consistency is one of the hall marks of truth! See Ajide V. Kelani (1985) NWLR (Pt. 12) 248 at p. 269.
The Appellants had, both in their individual and or representative capacities, the inalienable right of appeal as guaranteed to them by the Constitution against decisions of the Court below that they are aggrieved with and in my finding the 1st – 17, 908th Respondents cannot under any subterfuge, devoid of any valid grounds in law, deprive or deny them of their constitutional right of appeal. See Section 243(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In Anthony V. Elias & Anor (2017) LPELR – 45027 (CA), this Court had pointed out the implication of suing in dual capacity inter alia thus:
“…The Appellant’s contention of lack of locus standi in 1st and 2nd Respondents and consequential lack of jurisdiction in the lower Court to entertain their suit all revolve around that issue…they rather sued in a dual capacity… for themselves and for and on behalf of the family of late Alhaji Abdulwaheed Elias. Now where a Claimant sues in a dual capacity, as in this case, the Court in deciding the case cannot dismiss it simply because he has failed to make out his case in one of those capacities.
If he fails in one capacity but makes out a case in the other, judgment can be properly entered for him in that capacity…”
See also Beswick V. Beswick (1968) AC 58, a case in which one Mrs. Beswick, the Respondent had sued both in her personal capacity as well as the Administratix of her late husband Peter Beswick to enforce a contract made between her husband and his nephew, the Appellant, John Joseph Beswick, by which she was made a beneficiary. Lord Denning MR., had held inter alia on appeal that the Respondent entitled to sue to enforce the contract both in her personal capacity and in her capacity as Administratix. On further appeal, the House of Lords held inter alia that the Respondent, Mrs. Beswick could sue, and properly sued, to enforce the contract in her other capacity as Administratix of her husband’s estate, he being a party to the contract.
In an appeal, the party who is dissatisfied with the decision of a Court and is appealing against it is usually the Appellant and all other parties, irrespective of whether Claimants or Defendants who is not aggrieved with the decision is usually made the Respondents unless where the parties are sued in a joint capacity only. However, where they are sued in both their individual capacity and also in a representative capacity, then if they appeal in a representative capacity all the parties sued as such must do so jointly, but if they appeal in their individual capacity, then all of them need not appeal jointly.
In this vein, I have taken a look at the provisions of Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 and I cannot but agree with the apt submissions of learned Senior counsel for the Appellants that the rules do not provide that the arrangement of the names of parties before the Court below must be the same in this Court since the arrangement of the names of parties will depend on who is aggrieved and is appealing against the judgment, who will be listed as the Appellants and all the other parties will be listed as Respondents, notwithstanding whether they were Defendants or Claimants before the Court below.
I have looked at the facts in Nteile V. Irawaji (2021) 6 NWLR (Pt. 1803) 441, and they appear to me to be clearly distinguishable from the facts in the instant appeal. In that case it was a consent judgment entered into voluntarily by the parties that was sought to be appealed against by some of the Claimants, who were sued solely in a representative capacity, and their attempt to set same aside was denied by the Court.
I now come to the issue of abuse of Court process. The term ‘abuse of Court process’ has over the years itself suffered abuse by legal practitioners, who without any basis readily drags it into any discourse once there are two or more actions or applications pending before a Court even without considering the factors that would render an action or application an abuse of Court process. Abuse of Court process simply put, and for lack of a precise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Georgewill JCA. See also Dana Airlines Ltd V. Yusuf & ors (2017) LPELR 43051 (CA) per Georgewill JCA.
However, some guidelines were laid down by the apex Court in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 at p. 188, where the Supreme Court had opined inter alia thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions…It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”
See also Ziklagsis Network Ltd .V. Adebiyi & ors (2017) LPELR- 42899 (CA), per Georgewill JCA; Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69.
In the instant appeal, even going by the Appeal numbers alone there is no way this appeal, with Appeal No. CA/ABJ/CV/1020/2021, can be regarded as constituting an abuse of Court process in relation to Appeal No. CA/ABJ/CV/1034/2021 though emanating from the same judgment of the Court below, having been filed earlier than the latter appeal. Furthermore, looking at the parties, and bearing in mind the dual capacities in which the Defendants were sued by the 1st – 17, 908th Respondents before the Court below, the parties in both appeals are not the same in that the Appellants in this appeal are not the same as the Appellants in the other appeal, and both of whom have their inalienable right of appeal denoted to them by the Constitution as parties who are aggrieved with the judgment of the Court below. See Section 243(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also Anthony V. Elias & Anor (2017) LPELR – 45027 (CA).
I have looked at the facts in Ladoja V. Ajimobi (2016) 10 NWLR (Pt. 1519) 87, and they appear to me to be clearly distinguishable from the facts in the instant appeal. In that case, one Senator Rashidi Adewolu Ladoja had commenced an Election Petition jointly with his party, the Accord Party against Senator Abiola Adeyemi Ajimobi before the Governorship Election Petition Tribunal Oyo State. However, they lost and he filed an appeal to this Court but also filed a cross – appeal in the appeal filed by his joint Petitioner, the Accord Party. An objection to the competence of the cross appeal was upheld as his appeal and cross – appeal against the same judgment were found to be an abuse of Court process on grounds of multiplicity of appeals.
Now, it is true that some of the names of the 1st – 17, 908th Respondents, particularly the names of the 127th – 6470th Respondents appear to have been abbreviated in the Notice of Appeal but can that alone without more suffice to render the Notice of Appeal incompetent and deny the parties in the instant appeal the benefit of substantial justice by having their rights determined on the merit? I think not! In law these are mere trifles which should not be allowed to obfuscate the real, crucial and substantial issues in this appeal before this Court.
In Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) at pp. 119 – 121, this Court had per Georgewill JCA, stated inter alia thus:
“These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, the stance of the Court below, and sought to be justified in this appeal by the learned counsel for the 1st Respondent under issue five, resonates more with undue technicality than with substance and justice! The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king!”
See also Yusuf V. Adegoke (2007) LPELR – 3534 (SC); Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 at pp. 142-1 43; U.TC. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244; Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; Chief Adebisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR – 22799 (CA).
My lords, it is true that in law a Court would lack the jurisdiction to hear and determine matters which are or have become merely academic or hypothetical or which due to the occurrences of certain events had rendered such matters even if pending merely academic or hypothetical. This is so because the Courts are loath to and do not saddle themselves with the consideration of matters which though pending before them had become merely academic and therefore, of no utilitarian value to either of the parties. Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties.
In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See also Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Georgewill JCA; Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 at p. 180; Chief Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 at pp. 654 -655; Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379 at p. 391; Agbakoba V. INEC (2008) 18 NWLR (Part 1119) 489; Peoples Democratic Party V. INEC (2014) LPELR – 23808 (SC); Action Congress v INEC (2007) LPELR – 8988 (CA).
So, is this appeal no longer of any utilitarian value to the Appellants and thus rendered merely academic and whose determination would confer no value on the parties? Honestly, looking at the issues as canvassed in the appeal bordering not only on the, issues of jurisdiction, which is never too early and never too late to raise, and is the lifeblood of every cause or matter in the Courts, but also borders on the entire APC Ward Congress in the 484 Wards of Kano State and the still lingering issues as to who had emerged from the said Ward Congress held on 31/7/2021, and considering the accepted position of the Appellants in the APC National, I cannot even fathom the rationale for this contention by the 1st – 17, 908th Respondents that a challenge to their declaration as the rightful winners of the said Kano State APC Ward Congress in the 484 Wards by the Appellants, who are part of those in authority in the APC that set up the 7 – Man Ward Congress Committee to conduct and superintend the said Ward Congress in Kano State for the APC on 31/7/2021, is no longer of any utilitarian value! I find this contention not only preposterous but highly misconceived, completely undeserving and lacking in substance. I un-hesitantly overrule and discountenance it in its entirety! In the circumstances therefore, I hold that the preliminary objection of the 1st – 17, 908th Respondents lacks merit in its entirety and is thus liable to be overruled and dismissed. Accordingly, it is hereby so dismissed.
Having dismissed the preliminary objection, I shall proceed to consider the merit or otherwise of the substantive appeal anon! However, I shall consider the eight issues for determination in the following manner, namely: Appellants’ issues one, two, three, four, seven and eight shall be taken together with the 1st – 17908th Respondents’ issue one and resolve resolved in one fell swoop. Thereafter, I shall proceed to consider Appellants’ issues five and six together with the 1st – 17908th Respondents’ issue two and resolve them in one fell swoop, and then my work is done!
ISSUES ONE, TWO, THREE, FOUR, SEVEN AND EIGHT TAKEN TOGETHER
APPELLANTS’ COUNSEL SUBMISSIONS
On issue one learned Senior Counsel for the Appellants had submitted that the Court below was wrong in assuming jurisdiction over the claims of the 1st – 17, 908th Respondents which claims bordered on APC Ward Congresses held in the 484 wards of Kano State on 31/7/2021, and not the APC primaries towards a General Election and contended that in law pre – election matter excludes and does not include Ward Congress of a political party as in the instant case and urged the Court to hold that Ward Congress is an internal affairs of a political party over which Courts of law have no vires to determine since is not justiciable and to allow the appeal, set aside the perverse judgment of the Court below reached without jurisdiction and strike out the 1st – 17, 908th Respondents’ Suit for being incompetent. Counsel referred to Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 87 (9) of the Electoral Act 2010 (as amended) and relied on APC V. Moses (2021) All MWLR (Pt. 12) p. 495
It was also submitted that by virtue of the principles of stare decisis, as between the decision in APC V. Umar (Supra), decided in 2019 and APC V. Moses (Supra), decided in 2021, it is the latter decision in APC V. Moses (Supra) that will prevail and bind the Court below as well as this Court on the issue of whether or not Ward Congress of a political party is pre – election matter over which the Court can exercise any jurisdiction to hear and determine and contended that the Court below was therefore, wrong when it placed reliance on the decision in APC V. Umar (Supra) even on the face of its attention being drawn to the decision in APC V. Moses (Supra) and urged the Court to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Mohammed V. M.E. Company Ltd. (2010) 2 NWLR (Pt. 1197) p. 473; Osakue V. Federal College of Education (Technical), Asaba (2010) 10 NWLR (Pt. 1201) 1.
On issue two learned Senior Counsel for the Appellants had submitted that Court below was also wrong in assuming jurisdiction to hear and determine on the merit the claims of the 1st – 17, 908th Respondents bordering on the internal processes and or internal affairs of a political party, which is non – justiciable in law and contended that the subject matter of the 1st – 17,908th Respondents’ Suit which centered on the APC Ward Congress held in Kano State on 31/7/2021 was an internal affair of a political party to select its leaders and thus non – justiciable and therefore, not within the purview and ambit of pre – election matters over which the Court below could assume jurisdiction and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 87 (9) of the Electoral Act, 2010 (as amended)and relied on APC V. Moses (2021) All FWLR (Pt. 12) 495; Eyitayo Jegede V. INEC & Others (2021) LPELR – 55481 (SC); Onuoha V. Okafor (1983) 14 NSCC 494; Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party V. Ogundipe (2018) LPELR – 43887, Terver Kakih V. People Democratic Party and Ors (2014) 15 NWLR (Pt. 1430) 374 at pp. 413 – 414.
On issue three learned Senior Counsel for the Appellants had submitted that the Court below was wrong in assuming jurisdiction and determining the 1st – 17,908th Respondents’ Suit when it has no requisite territorial jurisdiction over the subject matter of the claim and contended that from the affidavits and documentary Exhibits of the parties, particularly on the showing of the 1st – 17, 908th Respondents, the subject matter and or their alleged cause of action arose in Kano State outside the territorial jurisdiction of the Court below sitting in Abuja and urged the Court to hold that the action of the 1st – 17, 908th Respondents simply amounted to forum shopping which rendered their Suit an abuse of Court process and robbed the Court below of any jurisdiction and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the claims of the 1st – 17, 908th Respondents for being incompetent as well constituting an abuse of Court process. Counsel relied on Audu V. All Progressives Congress (2020) All FWLR (Pt. 1036) 206; Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Mailantarki V. Tongo (2018) 6 NWLR (Pt. 1614) 69; Pali V. Abdu (2020) All FWLR (Pt. 1027) 763.
On issue four, learned Senior Counsel for the Appellants had submitted that the 1st -17, 908th Respondents did not provide any verifiable evidence showing that they had the locus standi to institute the action and contended that the only membership card they attached to their Originating Summons was that of the 1st Respondent with No. KN/KMC/21/29025 in Sharada Ward but which Ward was shown to be none existent by virtue of Exhibit MND1 and urged the Court to hold that the 1st – 17, 908th Respondents cannot by mere unsigned Nomination Forms as in Exhibit K – Series alone show any locus standi to have commenced the claims before the Court below and to allow the appeal, set aside the judgment of the Court below and strike out the 1st – 17, 908th Respondents’ Suit for being incompetent since unsigned document is in law worthless. Counsel relied on Olabode V. Kila (2010) 13 WRN 73 at pp. 128 – 129; INEC V. Oshiomhole (2008) 48 WRN 24; Auman Nig. Ltd V. Leventis Motors Nig. Ltd. (1990) 5 NWLR (Pt. 151) 458 at p. 588; Nwancho V. Elem (2004) All FWLR (Pt. 225) 93 at p. 104; UBN Plc V. Toyinbo (2009) 13 WRN 143 at 182.
On issue seven, learned Senior Counsel for the Appellants had submitted that the Court below erred in law when it held that the 1st – 17, 908th Respondents’ Suit was competent in the absence of the person who emerged as winners in the Ward Congress of the APC in Kano State on 31/7/2021 and who ought to be bound by the decision in this case, and contended that they being necessary parties, their non – joinder rendered the Suit as improperly constituted and thereby robbed the Court below of its jurisdiction and urged the Court to hold that the Appellants in their capacity as representatives of the APC had the capacity and indeed the rights to complain about the non – joinder of the newly elected Executives of the 484 Wards of Kano State, whose election the Court below had nullified without affording them a hearing and to allow the appeal, set aside the judgment of the Court below and strike out the 1st – 17, 908th Respondents’ Suit for being incompetent. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Ojo V. Ogbe (2007) 9 NWLR (Pt. 1040) 542; Adisa V. Oyinwola (2000) 6 SC (Pt. 2) 47; Amuda V. Ajobo (1995) 7 NWLR (Pt. 406) 170; Abiodun V. Chief Judge, Kwara State (2008) All FWLR (Pt. 448) 340; Agbi V. Ogbeh (2006) 5 SCNJ 314 at 343, Ojo V. Adedeji (2009) 23 WRN 64 at p. 108; Prince Abubakar Audu V. Federal Republic of Nigeria (2013) LPELR – 19897 (SC).
On issue eight, learned Senior Counsel for the Appellants had submitted that the Court below erred in law when it held that the 1st – 17,908th Respondents’ Suit was rightly commenced by means of Originating Summons even in the face of the copiously conflicting and contested affidavits and documentary evidences before it, requiring plenary trial and the calling of oral evidence to explain the numerous conflicting documentary evidence before it, and contended that in law Originating Summons are usually applied where facts are not in substantial disputes and not, as in this case, where there are glaring disputes and urged the Court to hold that with the complexity of the 1st – 17,908th Respondents’ Suit as manifested in the divergent documentary and affidavit evidence, the Originating Summons was improper contrary to the perverse decision finding of the Court below and to allow the appeal and set aside the judgment of the Court below.
1st – 17908th RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned Senior Advocate for the 1st – 17908th Respondents had submitted that to determine the jurisdiction of a Court it is the reliefs sought and the originating process that is to be considered since in law it is the claim of the Claimant that determines the jurisdiction of the Court, but where there are also supporting fact in the defense to support the Claimant’s claim to vest jurisdiction on the Court, the Claimant is in law allowed to refer to it also and contended that the Court below found as fact that the claims of the 1st – 17, 908th Respondents was one challenging the act of the Appellants and the 17, 908 – 17, 915th Respondents that constituted a violation of the APC Constitution and urged the Court to hold that such a claim amounting to an infraction of the APC Constitution is in law justiciable and therefore, where a political party conducts a Congress election preparatory to an election or its primaries and an aggrieved party or parties complain about the violation of any provisions of the Electoral Act 2010 or any other applicable laws, such as the Party Constitution or Guidelines, the Court will not allow the political party to get away with acts that are arbitrary or willy-nilly. Learned SAN referred to Section 285 (14) of the CFRN 1999 (As amended) and relied on Sojitz Corp. V. Subaru Motors Nig. Ltd (2017) LPELR- 50747 (CA); Oni V. Cadbury (Nig.) Plc (2016) LPELR-26061 (SC); Olofu V. Itodo (2010) LPELR – 2585 (SC); Elelu – Habeeb & Ors V. AG. Federation (2012) LPELR- 15515 (SC); UPL V. I. K. Martins (2000) FWLR (Pt. 5) 722 at p. 739; Peretu V. Gariga (2013) 5 NWLR (Pt 1348) 413; Uzodinma V. Izunazo (No. 2) (2011) 17 NWLR (Pt. 1275) 30, Ibrahim V. APC (No.1) (2019) 16 NWLR (Pt. 1699) 444 at p.465; Gwede V. INEC (2014) 18 NWLR (Pt. 1438) 56; Lau V. PDP (2017) LPELR – 42800 (SC); PDP V. Sheriff (2017) LPELR – 4236 (SC); Marafa V. APC (2020) 6 NWLR (Pt. 1721) 383.
It was also submitted that in law the holding of Congresses by a political party to elect its leaders in the process or preparation of election is a pre – election matter and thus justiciable and contended that a Congress election precedes primary election and is an election of delegates to elect candidates of political parties at the primary election in readiness and or anticipation of a forthcoming election and therefore, being in preparation for an election is a pre – election matter and urged the Court to hold that the Court below was therefore, right when it held that the claim of the 1st – 17, 908th Respondents borders on pre – election matters, the categories of which are never closed, more so with the release of the time table for the 2023 General Elections, for which the Court below had the jurisdiction to determine and to dismiss the appeal, and affirm the judgment of the Court below. Learned SAN referred to Section 122 of the Evidence Act 2011 and relied on APC V. Umar (2019) 9 NWLR (Pt. 1675)564 at pp. 575 – 576; Olagbemiro V. Ajagungbade III & Ors (1990) LPELR – 2554 (SC); Olatunji V. Waheed &Ors (2010) LPELR – 4754 (CA); Elite Stores Nig. Ltd &Ors V. UBN Plc & Ors (2021) LPELR – 55031 (CA); Kusamotu V. APC (2019) 7 NWLR (Pt. 1670) 51; Modibo V. Usman (2020) 3 NLWR (Pt. 1712) 470 at pp. 500 – 515; Gbileve V. Addingi (2014) 16 NWLR (Pt. 1433) 394; Okafor V. Duru & Ors (2006) LPELR – 12601 (CA); Abubakar V. INEC (2020) 12 NWLR (Pt. 1737)37; Ekagbara V. Ikpeazu (2016) 4 NWLR (Pt. 1503) 411.
On internal affairs of a political party, it was submitted that though the Courts would generally not interfere in the internal affairs of a political party so long as the political party adheres to the provisions of its Constitution in the choice of candidates for political office but contended that, as in the instant case, where the claim of the 1st – 17908th Respondents borders on violation of the 19, 909th Respondent, the APC Constitution and Guidelines, it is justiciable and urged the Court to hold that the Court below was therefore, right to have assumed jurisdiction to hear and determined the claims of the 1st -17, 908th Respondents and to dismiss the appeal and affirm the largely unchallenged findings of the Court below. Learned SAN referred to Section 87 (9) of the Electoral Act 2010 (as Amended) and relied on Gana V. SDP & Ors (2019) 11 NWLR (Pt. 1679) 139; Umeh V. Ejike (2013) LPELR – 23506 (CA); Ufomba V. INEC (2017) 13 NWLR (Pt. 1582)175; Akpatason V. Adjoto (2019) 14 NWLR (Pt. 1693) 501; Emenike V. PDP & Ors (2012) 12 NWLR (Pt. 1315) 556 at p. 602; Sadiq Yar’ adua & Ors V. Yandoma & Ors (2015) 4 NWLR (Pt. 1447) 123 at p. 182.
It was also submitted that in APC V Moses (Supra), the Appellants therein had sought the intervention of the Full – Court of the Supreme Court to depart from its earlier decision in APC V. Umar (Supra) but the Supreme Court firmly declined to do so but rather distinguished the two decisions and contended that in the circumstances the issue of which of the two decisions is latter in time or which prevails over the other does not arise and urged the Court to hold on the facts involved in those two decisions, it is the facts in APC V. Umar (Supra) that is on all fours with the facts in this case and should therefore, govern a consideration of the issues in this appeal and to dismiss the appeal and affirm the sound judgment of the Court below.
It was further submitted that the central relief of the 1st – 17, 908th Respondents as Claimants was the Appellants and 17, 909th – 17, 915th Respondents’ decision and or action or proposal not to recognize the 1st – 17, 908th Respondents or to reject the Report and Results already submitted to the APC Headquarter for an undemocratic Report without Results and contended that in the circumstances in which the 1st – 17907th Respondents emerged as winners in the Ward Congress and their names were rightly forwarded and submitted at APC Headquarter in Abuja, which accepted the Report and the Result but later but later decided in Abuja to substitute their names with unknown list of persons, the proper venue for the commencement of the Suit was Abuja and urged the Court to hold that the Court below was right when it held that the Suit was properly commenced in Abuja and to dismiss the appeal and affirm the judgment of the Court below. Learned SAN relied on Ibrahim V. APC (Supra).
On locus standi, it was submitted that the findings of the Court below that the 1st – 17, 908th Respondents bought nomination forms, filled same and submitted it as shown in Exhibits E1, E2, & E3 and contested the election and won the Ward Congress election as in Exhibit J – Series and Exhibit F forwarding their names clearly amounted to requisite locus standi conferred in them to instituted and maintain the Suit and urged the Court to hold that in the absence of any challenge to their membership of the APC, the Court below was right when it held that the 1st – 17, 908th Respondents had the locus standi and to dismiss the appeal and affirm these findings of the Court below. Learned SAN relied on Holborn Academy Ltd V. Akerele (2021) All FWLR (Pt. 1093) 2211 at pp. 2232 – 2234; Yar’ adua V. Yandoma & Ors (2014) LPELR -24217(SC); Ciroma & Ors V. Mohammad (2019) LPELR – 49371 (CA); Sunday & Ors V. INEC (2008) LPELR- 4986 (CA); Waziri V. Danboyi (1999) LPELR -6523 (CA).
On non – joinder of parties, it was submitted that on the face of ground ten in the Notice of Appeal complaining of the alleged failure by the Court below to make a pronouncement on the issue of non – joinder of the newly elected Executives of the 484 Wards of Kano State as necessary parties, the Appellants’ issue seven bordering on the statement of the Court below that Appellants are crying more than the bereaved amounted to an abandonment of ground ten and therefore, issue seven having no foundation on any of the sixteen grounds of appeal ought to be struck out and urged the Court to so hold and to discountenance and strike out issue seven. Learned SAN relied on Society Bic SA & Ors V. Charzin Industries Ltd (2014) 4 NWLR (Pt. 1398) 497.
It was also submitted that the claims of the 1st – 17, 908th Respondents was a challenge to the APC, its working organs as well as INEC in acknowledging the Report of Results of the Ward Congress election in Abuja as prepared by the 7 – Man WCC but undemocratically choosing to shove the Results aside and substituting same for unknown persons on account of the interest of State Executive Committee and alleged stakeholders and contended that in such circumstances all the necessary parties that ought to be joined are those whose decisions were being challenged, and who were so joined as parties and urged the Court to hold that the purported elected 484 Ward Executives, who nether applied to join nor laid any complaint, were not necessary parties and therefore, their non – joinder did not affect the competence of the Suit and to dismiss the appeal.
Learned SAN relied on Daniel V. INEC & Ors (2015) LPELR – 24566 (SC); Fenu & Ors V. Bello & Ors (2019) LPELR – 47693 (CA); Akparabong Community Bank (Nig) Ltd V. UBA Plc (2020) 8 NWLR (Pt. 1726) 201 at pp. 217 – 218.
On the use of Originating Summons, it was submitted that issue eight was not drawn from any process exchanged between the parties but merely raised in the address of counsel and contended in law hostility in affidavit evidence that requires calling of evidence can by a clear demonstration of such paragraphs enable the Court to appraise and evaluate the paragraphs and urged the Court to hold that the Appellants failed to furnish any materials to substantiate any alleged wrong exercise of discretion and therefore, made out no basis for any interference with the decision of the Court below and to dismiss the appeal. Learned SAN relied on Akparabong Comm. Bank (Nig) Ltd V. UBA Plc (Supra) at p. 218.
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Counsel for the Appellants learned counsel for the Appellants virtually reiterated his earlier submissions but in law the reply brief is not an avenue for reiteration. It is also not an avenue for an Appellant to re – argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not be filed just as a matter of course, even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
I shall therefore, only review albeit briefly, some of the relevant non repetitive reply submissions in the Appellants’ reply brief. It was submitted that the decision in Pali V. Abdu (2020) All FWLR (Pt. 1027) p. 763 is the latest decision on the issue of territorial jurisdiction and thus will prevail over the decision in Ibrahim V. APC (Supra). Counsel relied on Mohammed V. M. E. Company Ltd. (2010) 2 NWLR (Pt. 1197) p. 473; Osakue V. Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1.
It was also submitted that the 1st – 17908th Respondents’ contention that the Appellants were crying more than the bereaved was highly misconceived in that in law the issue of non – joinder of necessary parties touches on the breach of the fundamental right to fair hearing which is a jurisdictional issue and thus, can be raised by any party and at any stage of the proceedings or even by the Court suo motu. Counsel relied on Oseni Omomeji & 2 Ors v. James Olagunju Kolawole & 7 Ors (2008) 14 NWLR (Pt. 1106) 180; Access Bank Plc V. ULO Consult (2009) 12 NWLR (Pt. 1156) 534 at pp. 554 – 555; Nuhu V. Ogele (2003) 18 NWLR (Pt. 852) 251 at p. 279; NYAM Co Plc & Ors V. All Motors (Nig) Plc (2009) 17 NWLR (Pt. 1169) 135 at pp. 152 – 153.
RESOLUTION OF ISSUES ONE, TWO, THREE, FOUR, SEVEN AND EIGHT
My lords, issues one, two, three, four, seven and eight are issues dealing with an admixture of jurisdictional matters, most of which were raised as preliminary objections to the competence of the 1st – 17, 908th Respondents’ Suit but which objections were in their entirety overruled and dismissed by the Court below in the judgment appealed against by the Appellants. These issues range from whether or not the claims of the 1st – 17, 908th Respondents borders on pre – election and or internal affairs of the 17, 909th Respondent APC, to whether or not the subject matter of the claim was within the territorial jurisdiction of the Court below, being the High Court of the Federal Capital Territory Abuja and whether or not the 1st – 17, 908th Respondents as Claimants before the Court below had the requisite locus standi?
There is also the issue of whether or not the claims of the 1st – 17980th Respondents, considering the facts relied upon by them, were such as were amenable to be properly commenced by means of an Originating Summons and constituted of all necessary parties to the Suit?
The starting point, in my view, is the judgment of the Court below as to its findings and conclusions on all or any of these issues. In the judgment appealed against, which was delivered after a full hearing of the Originating Summons, the Court below had, whilst overruling the objections of the Appellants and proceeding to consider and determine on merit the claims of the 1st – 17, 908th, found and stated inter alia as follows:
“There are no materials conflicts central to the determination of this suit…This Suit is not a complaint about the conduct or outcome of the Congresses but the action of the Defendants in rejecting a purportedly valid result in the 1st Defendants headquarters in Abuja. In my view affidavit evidence should be sufficient…I hold the view that where the complaint of the Plaintiff cannot be determined without recourse to the conduct or outcome of the election held outside the FCT, the FCT High Court will lack jurisdiction to entertain this Suit. However, in this suit, it is not an issue of who won the Congress election. There was a congress election and a consensus. Both outcomes were reported in Exhibit F and G respectively. That being the case this Court would not consider events that took place in Kano State, but as the Plaintiffs have prayed, to hold that the only valid result is the one submitted as Exhibit F….It is clear that the issue of forum convenience is misconceived as the nature of the reliefs sought in the case of Audu V. APC; Dalhatu V. Turaki does not involve decision of APC in Abuja attempting to substitute result or report, rather the case applicable here is the case of Ibrahim V. APC (No. 1)…The Court has the territorial jurisdiction to hear this Suit and where a Court has territorial jurisdiction any argument on forum shopping or convenience becomes untenable…That being said, it is clear that the Suit being a complaint about a decision of APC National Headquarters which purportedly offends its Constitution and guidelines takes the suit outside the internal affairs of the party….I must agree with the Plaintiffs that from the above, it is obvious that since the matter has to do with the violation of APC Constitution and guidelines, the Court has jurisdiction to adjudicate on same….In other words, the case has to do with the decision of the 1st Defendant (APC) attempting to refuse their result…I hold the firm view that the prayers of the Plaintiffs and issues raised in the Originating Summons can be addressed without interrogating the conduct or outcome of the congresses held in Kano State….” See pages 6604 – 6610 of Vol. 7 of the Record of Appeal.
My lords, in law jurisdiction is the authority a Court has to entertain an action or matter brought before it. It is thus, fundamental to adjudication and without it a Court would lack the power to entertain a Suit over which it had not the requisite jurisdiction, since to do otherwise would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be.
In law it is the claim of the Claimant that ordinarily determines the jurisdiction of the Court and therefore, once the claim of a Claimant is either outside the subject matter or territorial or other legal jurisdiction of the Court, it is incompetent and must be put or brought to an end. See Madukolu V Nkemdilim (1962) 1 All NLR 58 @ p. 595. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Georgewill JCA.
I have taken time to scrutinize the depositions as to the facts and circumstances of the case, the reliefs and the subject matter of the claims of the 1st – 17908th Respondents as Claimants and the issues as joined by the parties before the Court below as in the Records of Appeal. It has been argued for the Appellants that the 1st – 17, 908th Respondent’s Suit was incompetent by reason of non – joinder of their alleged newly elected 484 Ward Executives of the APC in Kano State, who the Appellants consider are necessary parties.
It is true that in law the issue of non – joinder of necessary party is a threshold issue of jurisdiction and therefore, in law can be raised at any stage of the proceedings, including even for the first time on appeal either to this Court or even to the Apex Court, yet the question is whether the issue of non – joiner of necessary party ipso facto is one which could render a Suit incompetent and the resultant judgment a nullity?
So, was the non – joinder of the alleged newly elected 484 Ward Executives of the APC, Kano State said to have emerged from the Ward Congress of 31/7/2021 fatal to the competence of the Suit? It would appear that legal opinions on this issue are sharply divided, with some decided cases saying that non joinder is a mere irregularity and therefore, does not affect the competence of the Suit and the resultant judgment, whilst some other decided cases are saying that non joinder is a fundamental issue which affects the competence of a Suit and therefore, robs the Court of its jurisdiction.
Now, in the beginning, in Nigeria’s legal jurisprudence, it was Green V. Green (1987) LPELR – 1338 (SC) which brought the issue of necessary party to the fore and front burner in the Nigerian legal jurisprudence and since then many other decided cases have joined in the milieu. It seems to me that the welter of opinion favors the position canvassed and held in Green V. Green (1987) LPELR – 1338 (SC) that non – joinder of parties, including even necessary parties, neither vitiates nor render the Suit incompetent nor the resultant judgment as between the parties on record in the Suit. The Supreme Court had per Oputa JSC, (God bless his soul) pronounced inter alia thus:
“In other words where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 r. 6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court-in this case”
See also Ayorinde & Ors V. Oni & Anor (2000) LPELR – 684 (SC) at p. 30, where the Supreme Court had per Karibi-Whyte JSC (God bless his soul) held with finality inter alia thus:
“Where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of the law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-condition for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity.”
See further Azuh V. Union Bank (2014) LPELR – 22913(SC) per Kekere – Ekun JSC; Garuba V. Omokhodion (2011) LPELR – 1309 (SC).
Now, the issues in controversy and as joined by the parties on record can, in my view, be fairly, completely and competently determined as between the parties on record without the joinder of the alleged newly elected 484 Ward Executives of the APC in Kano State. It follows therefore, that the alleged 484 Ward Executives being not parties to the 1st – 17, 908th Respondents’ Suit, the issue of fair hearing to them, as vehemently raised by the Appellants, does not arise since in law non – parties to a Suit have no right to fair hearing in a Suit to which they are not parties. At best, they should have applied to join the Suit, if they feel if they feel so strongly about it to join the Suit, rather than standing by for the Suit to be conducted to conclusion.
At any rate, even after judgment a person who feels that his rights have been adversely affected by the resultant judgment is entitled by law to apply for leave to appeal against such a judgment as an interested party. After all, no order made in a Suit would bind a non – party to the Suit and any such order can as well be set aside by a Court of competent jurisdiction ex debito justitia, and without much ado! See Adenuga V. Odumeru (2003) 4 SCNJ 1.
It is therefore, my firm view that the Appellants cannot argue by proxy for the alleged breach of the right to fair hearing of the alleged newly elected 484 Ward Executives of APC in Kano, who were not parties to the Suit and who had also not applied or deem it fit to apply to join the Suit whilst it was pending before the Court below or seek the leave of the Court to appeal against the said judgment. It is thus, better to let the sleeping dog lie and for them to continue in their slumber. Indeed, the Appellants cannot and should not cry more than the bereaved as was rightly cautioned by the Court below in the judgment appealed against. SeeSection 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also ACN & Ors V. Labour Party & Ors (2012) LPELR – 8003 (CA); Rex V. Ogbuzuru Ugadu &. Anor (1988) 5 NWLR (Pt. 93) 189.AGF V. MAN & Ors (2007) LPELR-38020 (CA).
In the circumstances therefore, the failure to join the allegedly newly elected 484 Ward Executives of the APC Kano State to the 1st – 17908th Respondent’s Suit was not fatal as it neither rendered the Suit incompetent nor vitiated the resultant judgment of the Court below. I so firmly hold. The issue of whether or not the alleged newly elected 484 Ward Executives of the APC in Kano State are necessary parties had therefore, become otiose and rendered merely academic! In the result, issue seven for determination is hereby resolved against the Appellants in favor of the 1st – 17, 908th Respondents.
I consider it very pertinent to point it out at once that in law, locus standi is not synonymous with the merit of a case. I have looked at Exhibit K – Series showing the nomination forms of the 1st – 17908th Respondents, and even though unsinged, I am of the view that they were sufficient to and indeed clothed them with the requisite locus standi. Thus, the issue of whether they were signed or not or whether they could sustain their claim or not and even to what value or use these unsigned nomination forms can be put to at the trial has nothing to do with the locus standi of the 1st – 17908th Respondents, as all these would only go to the issue of the merit or otherwise of their claims.
At any rate, it is the pleadings or depositions and claims of a party that would determine the use to which evidence, including documents, can be put to at the trial. Thus, if the pleading or deposition of a party shows that a document given to him or handed over by him was unsigned, then such an unsigned document is admissible in proof of what is alleged by the party. It is therefore, not in every circumstance that an unsigned document is useless or worthless or inadmissible. I therefore, have no difficulty holding, and very firmly too, that the 1st – 17, 908th Respondents, whose membership of APC Kano State and or participation in the Ward Congress of APC Kano on 31/7/2021 is neither challenged nor disputed do have the undoubted locus standi to institute the Suit as they did against the Appellants and the 17, 909 – 17, 916th Respondents to enable them ventilate their alleged grievances before a Court of law. Thus, whether their Suit is competent or incompetent on other grounds or meritorious or not are entirely different issues having nothing to do with their locus standi. In the result, issue four for determination is hereby resolved against the Appellants in favor of the 1st – 17, 908th Respondents.
My lords, the parties are ad idem that what took place on 31/7/2021 in the APC Kano in the 484 Wards was a party Ward Congress. It was clearly not a party primary election to elect or nominate candidate of the APC in Kano State for any elections. Now, by Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided inter alia as follows:
“For the purpose of this Section, “pre-election matter” means any suit by: An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of Political Parties and the provisions of the guidelines of a Political Party of the conduct of party primaries has not been complied with by a Political Party in respect of the selection or nomination of candidates for an election; An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any other Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and; A Political Party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of Political Parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
Our attention was drawn to the decisions of the Supreme Court in APC V. Umar (Supra) decided in 2019 and APC V. Moses (Supra) decided in 2021. I have taken time to go through the facts and decisions in both cases, and it does appear to me that not only are the facts in the case of APC V. Moses (Supra) more apposite to the facts in the instant case, it was also a decision of the Apex Court in 2021. Thus, being a Court lower in the hierarchy of Courts to the Supreme Court and being bound by all its decisions, in the event of being confronted with two decisions of the apex Court, this Court is bound, under the well settled and antique principles of stare decisis, to apply the latter of the two decisions. This Court is therefore, bound to follow the decision in APC V. Moses (Supra). See Mohammed V. M.E. Company Ltd. (2010) 2 NWLR (Pt. 1197) p. 473. See also Osakue V. Federal College of Education (Technical), Asaba (2010) 10 NWLR (Pt. 1201) 1.
In APC V. Moses (2021) All MWLR (Pt. 12) p. 495 at pp. 542 – 543, the purport and effect of the provisions of Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), were exhaustively considered by the Supreme Court and had per Jauro JSC, stated inter alia thus:
“…In determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (14) (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) … From the statutory definition of pre-election provided above, I am persuaded to disagree with counsel for the Respondents that the action culminating into the instant appeal is a pre-election matter…”
It follows therefore, without any doubts from the above decision of the Apex Court, that by Section 285(14) (a) – (c) of the Constitution of Nigeria 1999 (as amended) justifiability is conferred by law on only pre – election matters preparatory to an election, which generally, or should I say usually, arises from political party primaries which must be conducted in line with the party’s Constitution and Guidelines.
So, is a Ward Congress of a political party a pre – election matter and thus justiciable in law? I think not! Then, is a Ward Congress of a political party merely an internal affair of a political party and thus non – justiciable in law? I must assuredly think so! In law, issues arising from the conduct of Ward Congress of a political party, unlike primaries of a political party for the election and or nomination of candidate of the political party for an election, is purely an intra – party dispute or internal affairs of a political party and is completely subject to the will of the majority, as in majority rule, of the political party, which simply put is akin to a voluntary organization, and thus not justiciable in law. See Onuoha V. Okafor (1983) 14 NSCC 494. See also APC V. Moses (2021) All MWLR (Pt. 12) 595; Eyitayo Jegede V. INEC & Ors. (2021) LPELR – 55481 (SC).
Now, from the depositions of facts and the copious documentary Exhibits relied upon by the parties, it is clear to me and I so hold that the claims of the 1st – 17, 908th Respondents borders on the internal affairs and or processes and of the APC, one of duly registered political parties in Nigeria. In my finding therefore, such claims are in law non – justiciable. It is beyond any dispute, even as between the parties that the APC Ward Congress held in Kano State on 31/7/2021 was purely an internal affair of the APC in which its leaders at the 484 Wards level were to emerge. It was clearly not the primaries of the APC to elect its candidates for any general election and therefore, it was not within the purview and ambit of pre – election matters over which the Court below could assume jurisdiction.
It was purely an intra – party dispute arising from its own internal affairs over which the Court below has no jurisdiction whatsoever to meddle and interfere with as to how the APC runs and manages its own internal affairs. See Onuoha V. Okafor (1983) 14 NSCC 494, where the Supreme Court had stated inter alia thus:
“A party is like a club, a voluntary association… Members join of their own free will… The party’s decision is final over its own affairs. Members of a Party would do well to understand and appreciate the finality of a party’s decision over its domestic or internal affairs”
See also Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party V. Ogundipe (2018) LPELR – 43887, Terver Kakih V. People Democratic Party and Ors (2014) 15 NWLR (Pt. 1430) 374 @ pp. 413 – 414. In the circumstances therefore, issues one and two for determination are hereby resolved in favour of the Appellants against the 1st – 17, 908th Respondents.
On 31/7/2021, the members of the APC in Kano State had trooped out to hold their Ward Congress in the 484 Wards in Kano State as sanctioned by their party leaders and for which a 7 – Man Ward Congress Committee was set up by the authority of the National Officers, though in caretaker capacity, to conduct and superintend the APC Ward Congress in the 484 Wards of Kano State, the result of which is indisputably the subject matter of the claims of the 1st – 17, 908th Respondents.
My lords, I have taken time to scrutinize the copious documentary Exhibits relied upon by the parties, and considered the depositions in their numerous affidavits, counter – affidavits and further and better affidavits of the parties as in the Records of Appeal. It is clear to me and I so hold that from the entirety of the facts and circumstances leading to the commencement of the Originating Summons by the 1st – 17, 908th Respondents as Claimants against the Appellants and the 17, 909th – 17, 916th Respondents as Defendants in the High Court of the Federal Capital Territory Abuja, the subject matter and or claim of the 1st – 17, 908th Respondents, bordering on the Ward Congress of the APC in the 484 Wards of Kano State that held on 31/7/2021 and its outcome, took place or arose in their entirety and entirely in Kano State, which is clearly outside the territorial jurisdiction and competence of the Court below as established by law for the Federal Capital Territory, Abuja. See Section 255(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), which provides thus:
“There shall be a High Court of the Federal Capital Territory Abuja”
The Courts, particularly the Supreme Court had on countless occasions and in numerous cases emphatically held and reiterated that the High Court of a State, which also refers to and includes the Court below, the High Court of the Federal Capital Territory, can only exercise jurisdiction in respect of matters which arose within their territorial, or geographical, jurisdiction. Indeed, the Court below, manned by mere mortal man, is not an extra territorial being or body that can sit in Abuja in the Federal Capital Territory to know and decide on facts and things that occurred or took place in faraway Kano State or indeed in any other States of the Federation.
Thus, the cause of action, even from the horse’s mouth, the 1st – 17908th Respondents, no doubt arose outside the Federal Capital Territory Abuja and therefore, the only rational inference that can be drawn, and which I hereby so draw, is that in commencing their Originating Summons against the Appellants and the 17909th – 17, 916th Respondents in the High Court of the Federal Capital Territory Abuja rather than in the High Court in Kano State, where the cause of action arose, the 1st – 17908th Respondents knew and were indeed engaging and did engaged in forum shopping, which is a specie of abuse of Court process. I cannot but hereby condemn such act in no unmistaken terms. See Dingyadi V. INEC (2011) 44 NSCQR 301 at p. 340. See also Pali V. Abdu (2020) All FWLR (Pt. 1027) 763; Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69; NDIC V. UBN Plc. (2015) LPELR-24316 (CA); Ogunsanya V. Akande (2010) LPELR-4696 (CA); Chief Ojumo & Ors V. Adalemo & Ors (2010) LPELR- 9012 (CA); Gov. of Plateau State & Ors. V. Dadi & Ors (2014) LPELR – 22567 (CA).
In my finding therefore, the Court below clearly lacked the territorial jurisdiction either to hear and or determine the Originating Summons of the 1st – 17, 908th Respondents against the Appellants, and I so firmly hold. See Okponetus & Ors .V. APGA & Anor (2021) LPELR- 55923(CA) per Georgewill JCA. See also Prince Yahaya Oyidi Audu V. APC & Ors (2019) 78 NSCQR 540. In the circumstances therefore, issue three for determination is hereby resolved in favor of the Appellants against the 1st – 17, 908th Respondents.
The crux of issue eight is whether the subject matter of the claims of the 1st – 17, 908th Respondents as Claimants before the Court below were such as could be commenced and determined by means of an Originating Summons? I have looked closely at the questions for determination, the reliefs sought and the depositions in the supporting affidavit to the 1st – 17, 908th Respondents’ Originating Summons.
Now, it is almost inconceivable that parties would go to Court to litigate over issues in which there are no disputes at all between them perhaps just of the fun of it. In other words, every Suit would involve some form of dispute or even a disagreement, and if it were not so what would then be the basis of the Litigation? Thus, even Originating Summons would involve the resolution of some form of dispute, since even in the construction of documents there is a disagreement as to its meaning or scope or purport, hence the resort to the Court. What is prohibited therefore, in an Originating Summons are substantial disputes as to facts.
It is well settled that Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings and oral evidence at plenary hearings are unnecessary or where there are no real disputes as to facts between the parties. It would therefore, be improper to commence civil proceedings by means of Originating Summons where the facts are likely to be in substantial disputes. Thus, civil proceedings for which it is used usually involves questions of law rather than disputed issue of facts.
What then are the facts in this case before us now? The facts of this case are not to be found in the submissions of counsel, no matter how brilliant and comprehensive, but in the affidavit evidence of the parties, the 1st – 17, 908th Respondents and the Appellants as can be gleamed from the Records of Appeal. It would appear that even on the 1st – 17, 908th Respondents’ own showing alone the issues between the parties, particularly the 1st – 17, 908th Respondents and the Appellants and the 17, 909th – 17, 915th Respondents are obviously very contentious and substantial disputes as to facts so materially crucial as to necessitate the calling of oral evidence or ordering for pleadings to be filed.
My lords, I am aware that it is not every seeming conflicts arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution but where the issues of facts are so contentious and borders amongst others on allegations of falsification of document, it calls for caution on the part of the Court below from rushing to determine such a claim on affidavit evidence only in an Originating Summons, as such a case is one, in my view, more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons.
In law, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors. (2009) LPELR – 8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) 1 at p. 88; Esezoobo V. Nsitf & ors. (2012) LPELR- 9282 (CA); Ossai V. Isaac F. Wakwah (2006) 4 NWLR (Pt. 969) 208; AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581.
My lords, on the totality of the affidavit evidence of the parties as in the Records of Appeal, it is very clear and I so hold that the allegation of falsification of Exhibit G, and the accompanying Exhibits MND3 – MND46, was central to the claims of the 1st – 17, 908th Respondents against the Appellant and the 17, 989th – 17, 915th Respondents as Defendants before the Court below and therefore the Originating Summons procedure was clearly most inappropriate and improper to commence such an action founded steeply on allegation of falsification of Report in Exhibit G, which being criminal in nature and central to the claims of the 1st – 17, 908th Respondents must be proved beyond reasonable doubt even though made in a civil proceedings. Thus, it is more suitable for proceedings commenced by means of Writ of Summons. See Section 135(1) of the Evidence Act 2011. See also UAC Ltd. V. Taylor (1936) 2 WACA 70; Usenfowokan V. Idowu (1969) NMLR 77; Nwobodo V. Onoh & Ors. (1984) NSCC 1.
In the light of the findings above, I hold that there were substantial disputes of facts coupled with allegations of falsification of Exhibit G, and the accompanied Exhibits MND3 – MND46 between the parties on the strength of the affidavit evidence placed before the Court below by the 1st – 17908th Respondents themselves and thus the Originating Summons procedure by which the Suit was commenced before the Court below by the 1st – 17908th Respondents was completely and irredeemably improper. In the circumstances therefore, I hereby resolve issue eight for determination in favor of the Appellants against the 1st – 17908th Respondents.
Having therefore, resolved issues one, two, three and eight for determination in favor of the Appellants against the 1st – 17908th Respondents, I hold firmly that the 1st – 17908th Respondent’s Suit is incompetent and is thus liable to be struck out.
In law, once the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court had per Kayode Eso JSC, (God bless his soul) put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain”
Having arrived at the inescapable conclusion that the 1st – 17908th Respondents’ Suit is incompetent, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the 1st – 17908th Respondent’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Suit? See African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 at p. 365 – 366, where this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had per Georgewill JCA, opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the above statement of the law I made and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st – 17908th Respondents’ Suit filed without competence. In law, once a Suit is found to be incompetent the proper order to make is one striking it out. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258. Consequently, the 1st – 17908th Respondents’ Suit No. FCT/HC/CV/2030/2021: Muttaka Bala Sulaiman & 17, 907 Ors V. All Progressive Congress & Others, is hereby struck out for being incompetent.
ISSUES FIVE AND SIX TAKEN TOGETHER
My lords, having held firmly that the 1st – 17, 908th Respondents’ claims were non justiciable, it follows therefore, that not only the Court below but also this Court would lack the jurisdiction to consider and determine it on the merit. Thus, issues five and six dealing with the merit or other wise of the claims of the 1st – 17, 908th Respondents have become merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See also Uba Plc V. Dana Drugs Ltd (2018) LPELR -44103 (CA), per Georgewill JCA; Action Congress v INEC (2007) LPELR – 8988 (CA); Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at p 1497.
On the whole therefore, having resolved issues one, two, three and eight for determination in favor of the Appellants against the 1st – 17, 908th Respondents, I hold that the appeal has merit and ought to be allowed. Accordingly, it is hereby allowed.
In the result, the Judgment of the High Court of the Federal Capital Territory Abuja, Coram: Hamza Mu’azu J, in Suit No. FCT/HC/CV/2030/2021:
Muttaka Bala Sulaiman & 17, 907 Ors V. All Progressive Congress & Ors delivered on 30/11/2021, in which the Claims of the 1st – 17908th Respondents as Claimants were granted against the Appellants as 4th – 5th Defendants and 17, 909 – 17, 916th Respondents as 3rd, 6th – 10th Defendants, is hereby set aside.
In its stead, the 1st – 17908th Respondents’ Suit No. FCT/HC/CV/2030/2021: Muttaka Bala Sulaiman & 17, 907 Ors V. All Progressive Congress & Others, is hereby struck out for being incompetent.
There shall be no Order as to cost.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Sir Biobele Abraham Georgewill, JCA gave me the privilege of reading in advance, the draft of the judgment just delivered.
From the depositions in the Affidavit in support of the Originating Summons and the documents exhibited thereto, this suit does not fall within the definition of a pre-election matter as circumscribed by Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is settled law that any definition of a pre-election matter must be confined to the definition stipulated by the Constitution, which is the grund norm. Thus any definition of a pre-election matter which includes activities not captured by the ambit or sphere of such definition as contained in Section 285 (14) (a) – (c) will not be valid. Indeed, that is the decision of the Supreme Court in the cases of A.P.C v. Moses (2021) 14 NWLR (Pt. 1796)278 and Aguma v. A.P.C (2021) 14 NWLR (Pt. 1796)351. Therein, the Supreme Court held, most emphatically that, no Court has the power or vires to expand the meaning of a pre-election matter beyond that stipulated in Section 285 (14) (a) – (c) of the Constitution.
I am not unaware of the decision of the Supreme Court in APC v. Umar & ors. (2019) 8 NWLR (Pt. 1675) 564 which is the authority the Court below, relied on in reaching the conclusion that the matter is a pre-election matter. It should be noted that the cases of APC v. Moses and Aguma v. APC (both supra) are latter in time. It is the law that, in case of “conflict” between two decisions of the Supreme Court, this Court is bound to follow the latter one. See Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250; Osude v. Azodo (2017) 15 NWLR (Pt. 1588) 21 and Osakue v. F.C.E, Asaba (2010) 10 NWLR (Pt. 1201) 1 at 37 para. B.
Having thus held, I find no difficulty in coming to the conclusion that, from the facts disclosed by the conflicting documentary and affidavit evidence on record, the matter subject of this appeal is an intra-party dispute. It arose from the ward congresses of the A.P.C in Kano State, and not from party primaries as erroneously alluded to by the 1st – 17,908th Respondents. Being an intra-party dispute arising from the congresses of A.P.C in Kano State, the F.C.T High Court lacked both the substantive and territorial jurisdiction to hear and determine the matter.
Having thus found, I agree with my learned brother, particularly for the reasons ably heralded in the lead judgment, that this appeal is meritorious. It is hereby allowed. Consequently, the judgment of the F.C.T High Court delivered on the 30th day of November, 2021 in Suit No: FCT/HC/CV/2030/2021 is hereby set aside. I abide by the consequential order including the order on costs.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the Judgment just delivered by my learned brother Sir Georgewill, JCA.
I am in full agreement with the reasonings expressed therein and the conclusions reached thereby.
I adopt the reasonings and conclusions in the lead Judgment by which I too hereby set aside the Judgment of the trial Court delivered on the 30th of November, 2021 in Suit No. FCT/HC/CV/2030/2021.
Appearances:
Chief M. N. Duru, with him, Ibrahim Aliyu Nassarawa, Esq. and Adekunle Taiye Falola, Esq. For Appellant(s)
Nureini Jimoh, SAN and Ibrahim Idris, SAN, with Osita Anene, Esq. and Abdulhafees D. Khalid, Esq. – for 1st – 17,908th Respondents
Abdul Adamu, Esq., with him, Suleiman Gezawa, Esq. – for 17,909th – 17,911th Respondents
Sir Steve Adehi, SAN and Prof Josephine Agbonika, SAN, with Wale Babalola, Esq. and Martins F. Ekpah, Esq. – for 17,912th – 17,915th Respondents
Bashir M. Abubakar, Esq., with him, S. M. Danbaba, Esq. – for 17,916th Respondent For Respondent(s)
