ALHAJI ADAMU ABDULKADIR & ANOR v. AMBASSADOR YUSSUF MAMMAN & ORS(2003)

ALHAJI ADAMU ABDULKADIR & ANOR v. AMBASSADOR YUSSUF MAMMAN & ORS

(2003)LCN/1376(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of April, 2003

CA/A/32/M/2003

 

JUSTICES:

IBRAHIM TANKO MUHAMMAD                                   Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA                                   Justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI                                        Justice of The Court of Appeal of Nigeria

 

Between

  1. ALHAJI ADAMU ABDULKADIR
    2. DR. CHUDI NWIKE
    (On behalf of themselves and of all other persons purportedly elected into the National Executive Committee of the Alliance for Democracy at a Convention purportedly held at Eagle Square, Abuja on 1st November, 2000) – Appellant(s)

AND

  1. AMBASSADOR YUSSUF MAMMAN
    2. CHIEF AYO ADEBANJO
    3. MR. SOLOMON ASEMOTA
    (On behalf of themselves and of all other persons duly elected into the National Executive Committee of the Alliance for Democracy at the National Convention of the Party duly convened and held on 1st November 2000 at Abuja Gardens in Abuja.)
    4. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)

 

ODUYEMI, J.C.A. (Delivering the Leading Judgment): In the High Court of the Federal Capital Territory, Abuja, the 1st, 2nd and 3rd respondents herein, as plaintiffs took out an originating summons against the 1st and 2nd appellants herein together with the 4th respondents herein as 1st, 2nd and 3rd defendants respectively.

By a subsequent statement of claim, plaintiffs sought the following reliefs:

“1. A declaration that the 1st plaintiff was the only person empowered by the Constitution of the Alliance for Democracy to convene the first National Convention of the Alliance for Democracy.

2. A declaration that the plaintiffs were duly and properly elected at the National Convention of the Alliance for Democracy held at the Abuja Gardens in Abuja on Wednesday, 1st November, 2000 into the following offices:
1st plaintiff- National Chairman;
2nd plaintiff- National Deputy Chairman;
3rd plaintiff- National Vice Chairman (N.W.);
4th plaintiff- National Vice Chairman (S.E.);
5th plaintiff- National Vice Chairman (N.E.);
6th plaintiff- National Vice Chairman (S.W.);
7th plaintiff- National Vice Chairman (N.C.);
8th plaintiff- National Vice Chairman (S.S.);
9th plaintiff- National Treasurer;
10th plaintiff- National Financial Secretary;
11th plaintiff- National Publicity Secretary;
12th plaintiff- National Legal Adviser;
13th plaintiff- National Welfare Officer;
14th plaintiff- Deputy National Treasurer;
15th plaintiff- Deputy Financial Secretary;
16th plaintiff- Deputy Financial Secretary;
17th plaintiff- Deputy National Publicity Secretary;
18th plaintiff- Deputy Legal Adviser;
19th plaintiff- Deputy Welfare Secretary;
20th plaintiff- Assistant National Secretary;
21st plaintiff- Assistant National Secretary;
22nd plaintiff- Assistant National Secretary;
23rd plaintiff- Assistant National Secretary;
24th plaintiff- Ex Officio Member;
25th plaintiff- Ex Officio Member;
26th plaintiff- Ex Officio Member;
27th plaintiff- Ex Officio Member;
28th plaintiff- Ex Officio Member.

3. A declaration that only the plaintiffs are entitled to be members of the National Executive Committee of the Alliance for Democracy.
4. A declaration that the purported convention held at the Eagle Square in Abuja by the 1st and 2nd defendants and all the other persons they represent in this suit is against the Constitution of the Alliance for Democracy, illegal, null and void.
5. A declaration that the 1st defendant was not eligible to stand election for the position of National Chairman of the Alliance for Democracy or for any other office whatsoever in the Alliance for Democracy.
6. A declaration that the Independent National Electoral Commission has no power to interfere or in any way meddle with the administration or conduct of internal elections in the Alliance for Democracy.
7. An order of injunction restraining the 1st to 2nd defendants and all the other persons they represent in this suit or anyone or more of them whether by themselves or by their agents, servants, followers, privies, or otherwise howsoever, from parading or continuing to parade themselves as National officers of the Alliance for Democracy.
8. An order setting aside any resolutions passed, declarations made or decisions reached at the convention
purportedly held at the Eagle Square, Abuja on the 1st of November, 2000.
9. An order of injunction restraining the 3rd defendant, whether by itself or by its officials, servants, agents, privies, or successors in title from presenting, recognizing, countenancing or in any way, holding out the 1st to 2nd defendants and all the other persons they represent in this suit or anyone or more of them as National officers of the Alliance for Democracy.
10. An order of mandatory injunction compelling the 3rd defendant to accept from the plaintiffs, as the duly elected members of the National Executive Committee of the Alliance for Democracy, the list of candidates for election into the various Local Government, State and Federal, executive and legislative offices in Nigeria and to recognize the candidates in the said list as the candidates duly and properly nominated by the Alliance for Democracy to represent the Alliance for Democracy in the forthcoming elections.”

The 1st and 2nd defendants filed a statement of defence whereby they pleaded in paragraphs 30 and 31 respectively as follows:
“30. The 10 reliefs sought in the plaintiffs statement of claim are matters which touch and concern the internal activities of the Party Alliance for Democracy.
31. The 1st and 2nd defendants, therefore, urge this court to refuse all the 10 reliefs sought by the plaintiff and dismiss them for being incompetent, an abuse of the court process and an attempt to erode the fragile democracy of this nation.”
Soon after the trial proceedings commenced, the 1st and 2nd defendants (appellants herein), by a motion on notice sought for an order from the said court (hereinafter referred to as ‘the lower court’): for the dismissing/striking out of the suit on the following grounds viz:
“1.This Honourable Court lack jurisdiction to (sic) entertain the suit due to (a) The subject matter of the suit is an internal matter of a registered political party ‘The Alliance for Democracy’ (b) The issue for determination claims and reliefs being sought herein are substantially the same as those in suit Nos. FHC/HC/359/2000 between Alliance for Democracy versus His Excellency, Governor Adeniyi Adebayo & 15 Ors. and FHC/ABJ/CS/167/2000 between His Excellency, Governor Adeniyi Adebayo versus Ambassador Yusuf Mamman which was affirmed by the Court of Appeal in suit No. CA/A/60/2000 dated 28th October, 2002.

2. The plaintiffs/respondents herein lack the necessary locus standi to institute this action.
v
3. No cause of action against the 1st and 2nd defendants.”
The application was accompanied by an affidavit sworn to by one Opeyemi Bamidele, a legal practitioner. The affidavit contains 8 paragraphs. I quote the paragraphs:
“1. That I am the National Director of Publicity of the Alliance for Democracy, the party to which the 1st and 2nd defendants are the National Chairman and National Secretary respectively.
2. That I am familiar with the facts of this case.
3. That I have the consent of the 1st and 2nd defendants to swear to this affidavit.
4. That the reliefs being claimed by the plaintiffs/respondents herein relate to the internal affairs of the Alliance for Democracy.
5. That I know as a fact, that two other suits involving the plaintiffs and the 1st and 2nd defendants relating to the Alliance for Democracy had been adjudicated upon in court and are still being adjudicated upon at the Federal High Court, Abuja and the Court of Appeal.
6. That the 1st and 2nd defendants herein and the Alliance for Democracy, which they represent are the only body recognized by the Independent National Electoral Commission (INEC) as shown by the Certificate of Registration and correspondence attached herewith and marked exhibit A and B respectively.
7. That the plaintiffs herein have no complaint against the 1st and 2nd defendants.
8. That I swear to this affidavit in good faith.”

The plaintiffs responded to the affidavit by a counter affidavit. The counter-affidavit contains 13 paragraphs. I quote them in full:
“1. That I am the 1st plaintiff in this suit.
2. That I have the permission of the other plaintiffs in this suit to swear to this affidavit on their behalf.
3. That I have read the motion on notice dated 21st January, 2003 filed in this suit on behalf of the 1st and 2nd defendants as well as the affidavit in support of the motion sworn to by one Opeyemi Bamidele.
4. That it is not true that Opeyemi Bamidele is the National Director of Publicity for the Alliance for Democracy.
5. That it is not true that the 1st and 2nd defendants are respectively the National Chairman and National Secretary of the Alliance for Democracy.
6. That the 1st and 2nd defendants as well as Opeyemi Bamidele have based their claims to the offices they purport to hold on an unconstitutional and illegal gathering they held at Eagle Square in Abuja on 1st November, 2000 which they have, contrary to the Constitution of the Alliance for Democracy, continued to hold out as a convention of the Alliance for Democracy.
7. That there is only one Alliance for Democracy political party registered by the 3rd defendant and it is governed by its Constitution which is now shown to me and marked exhibit YM1.
8. That the plaintiffs’ claims against the 1st and 2nd defendants arise from their persistent, unconstitutional and illegal attempts to represent themselves as the chairman and secretary respectively of the Alliance for
Democracy.
9.That the claims of the plaintiffs have been brought to protect the constitution of the Alliance for Democracy from the attacks of the 1st and 2nd defendants and all the other persons they represent.
10.That all the parties in suit No. FCT/HC/CV/359/2000 are totally different and distinct from the parties in this suit.
11.That the plaintiffs in suit No. FHC/ABJ/CS/167/2000 are not party to this suit.
12.That the 1st and 2nd defendants’ assertion that the plaintiffs lack necessary locus standi to institute this
action is totally false.
13. That I swear to this affidavit in good faith.”

As the application attacked the jurisdiction of the lower court to entertain the suit, the learned trial Judge of the lower court suspended the proceedings in the substantive action and took arguments from the parties.
The learned trial Judge, thereafter, gave a ruling in which he found for the respondents to the application and dismissed the application of the 1st and 2nd defendants.
The 1st and 2nd defendants/applicants felt aggrieved by that ruling and have appealed to this court joining the erstwhile 3rd defendant as the 4th respondent in this appeal.
The notice of appeal filed in the lower court contained only one ground. The ground together with the particulars thereof read:

“Ground of Appeal
The learned trial Judge erred in law when he held that he had jurisdiction to entertain this suit which center on the National Convention of the Alliance for Democracy which is basically, a domestic affairs of the party.

PARTICULARS OF ERROR
(i) The learned trial Judge failed to appreciate the age long principle of law that jurisdiction is the plank upon which every action in court should stand and that the conduct of a National Convention of a political party is a domestic affairs of the party which is not justiciable as laid down in
(a) Onuoha v. Okafor (1983) NSCC Vol. 14 page 494 at 495-496.
(b) James Bakam v. Alh. Yakubu Abubakar (1991) 6 NWLR (Pt.199) P. 564 at 572.
(c) Jessie Balonowu v. Dr. Chinyelu & Ors. (1991) 4 NWLR (Pt.183) page 30 at 39-40.
(d) Balarabe Musa v. PRP (1981) 2 NCLR P. 763 at 768-769.
(e) Ibrahim v. Gaye (2002) 13 NWLR Part 784 page 267 at 270 x 296 x 304.”

From the only ground of appeal, the appellants have formulated in their brief of argument one issue thus:
“The only solitary issue arising for determination in this appeal is ‘whether the trial court had jurisdiction to entertain this case which concerns dispute as to National Convention of a political party and elections of party officials therefrom.'”
The 1st-3rd respondents filed a respondents’ brief. The 4th respondent filed no brief. In the brief of the 1st – 3rd respondents (hereinafter referred to as the respondents, unless otherwise indicated), the respondents also identified only one issue for determination in this appeal. The issue reads:
“Whether the respondents’ claim is justiciable.”

At this stage, I shall set out the relevant paragraphs of the pleadings of the parties to this dispute in order that the relevance of the sole issue formulated by each party to the dispute leading to this appeal may become clear.

STATEMENT OF CLAIM
“1. The 1st plaintiff is a politician and a foundation member of the Alliance for Democracy (hereinafter called ‘the party’), a body duly registered as a political party by the Independent National Electoral Commission. The 1st plaintiff is also the National Chairman of the party.
2. The 2nd and 3rd plaintiffs are long standing members of the party and are members of its National Executive Committee, holding the offices of Deputy Chairman and National Legal Adviser respectively.
3. The 1st and 2nd defendants are not members of the National Executive Committee of the Party.
4. The 3rd defendant is the body empowered under the Independent National Electoral Commission (Establishment etc) Decree (No. 17 of 1998) to conduct elections into the various Local Government, State and Federal, executive and legislative offices in Nigeria.
5. The plaintiffs aver that prior to the 1st plaintiff’s election as National Chairman of the party, he had office as its Protem National Chairman.
6. The plaintiff further aver that as the Protem National Chairman of the party, and in accordance with Article 8.1 of the party’s Constitution, the 1st plaintiff summoned and convened the first National convention of the party to be held on Wednesday, 1st November, 2000 at Abuja Gardens, Abuja. At the trial of this suit, the plaintiffs will rely on the aforesaid party’s constitution.
7. The first National Convention of the party was duly held on Wednesday, the 1st of November, 2000 at Abuja Gardens, Abuja and the following persons were duly nominated and elected into the following corresponding national offices of the party:

1. AMBASSADOR YUSSUF MAMMAN – National Chairman
2. CHIEF AYO ADEBANJO – National Deputy Chairman
3. COMRADE ADAMU SONG – National Vice Chairman (N.W)
4. MR CHUBA CELESTINE EGOLUM – National Vice Chairman (S.E.)
5. ALH. GARBA BALI AHMED – National Vice Chairman (N.E.)
6. MR NIYI AFUYE – National Vic Chairman (S.W.)
7. ALH. SALISU MUSA – National Vice Chairman (N.C.)
8. DR. B. IDIONG – National Vice Chairman (S. S.)
9. CHIEF MAXI OKWU – National Secretary
10. MR MIKE BAAH – National Treasurer
11. ISIAKA AYINDE JIMOH – National Financial Secretary
12. CHIEF SUPO SHONIBARE – National Publicity Secretary
13. MR. SOLOMON ASEMOTA, SAN – National Legal Adviser
14. CHIEF MIKE ODURINDE – National Welfare Officer
15. CHIEF DURO AIKULOLA – Deputy National Treasurer
16. MRS C. A. OLAYANJU – Deputy Financial Secretary
17. ALH. MOHAMMED MUSTAPHA – Deputy Financial Secretary
18. MR. JIMMY IMOH – Deputy National Publicity Secretary
19. JIDE MAKINDE – Deputy Legal Adviser
20. COMRADE KATE AWANAH – Deputy Welfare Secretary
21. REVEREND OKECHUKWU C. OBIOHA – Assistant National Secretary
22. MR. TOKUNBO AJASIN – Assistant National Secretary
23. MR FOLORUNSHO OLUSEGUN – Asst. National Secretary
24. MR EDWARD ELEKULA – Assistant National Secretary
25. ALH. YOMI ALIYU – Ex Officio Member
26. MALAM ABUBAKAR SULAIMAN – Ex Officio Member
27. MR MONZO YARO – Ex Officio Member
28. ELDER G. E. IBIAM – Ex Officio Member
29. ALHAJI BABA KURA GONI – Ex Officio Member

8. After the successful holding of the first National Convention, the plaintiffs as well as all the other persons they represent in this action were informed that certain other persons who the plaintiffs later learnt were the 1st and 2nd defendant’s and those they represent in this suit had collected themselves together on 1st November, 2000 and held an illegal parallel convention at Eagle Square in Abuja and had purported to elect 32 persons to form a parallel national executive committee of the party.
9. The plaintiffs shall contend at the trial of this suit that the 1st plaintiff was the only person, as the Protem National Chairman of the party, with the power or right to convene the 1st National Convention of the party. ………………………..
13. On several occasions, the plaintiffs have held meetings with and made representations to the 1st and 2nd defendants and the other persons they represent in this suit with the intention of trying to persuade them to renounce their unconstitutional acts and to allow peace to reign, but the said defendants have continued to spurn all the plaintiffs’ attempts and efforts to establish goodwill and a peaceful atmosphere.
14. The 1st and 2nd defendants and those they represent in this suit have continued to parade themselves as elected national officers of the party.
15. Because the plaintiffs were unable to persuade the Chairman and Secretary of the 3rd defendant to tread the path of constitutional rectitude and legality, they (plaintiffs) caused Mr. Tani A. Molajo, SAN, leading counsel retained by the plaintiffs to make representations by letter to the Chairman of the 3rd defendants on their behalf. At the trial of this suit, the plaintiffs will rely on the said letter, dated 11th December, 2002. Notice is hereby given to the 3rd defendant to produce the said letter at the trial.
16. National elections which will involve all registered political parties are now imminent and the 3rd defendant has requested for all such parties to present lists of all their candidates on or before 11th January, 2003. The 3rd defendant has also issued a Table of Activities and Schedule of Elections for the elections. At the trial of this suit, the plaintiffs will rely on the said Table of Activities and Schedule of Elections.
17. On more than one occasion in the weeks following the Court of Appeal judgment, the plaintiffs have tried to hold a meeting with the Chairman of the 3rd defendant but he has on each occasion contrived to avoid meeting with them.
18. The behaviour of the officials of the 3rd defendant has given a clear indication that they intend to continue to regard the unconstitutionally constituted committee represented by the 1st and 2nd defendants as the proper representatives of the party.”

STATEMENT OF DEFENCE OF 1ST & 2ND DEFENDANTS

The relevant paragraphs are:

“1. The 1st and 2nd defendants deny each and every paragraph of the plaintiffs’ statement of claim as if they are specifically set out and denied seriatim except as admitted hereunder.

2. The 1st and 2nd defendants deny paragraph 1, 2 and 3 of the statement of claim except the facts that the Alliance for Democracy (hereinafter called the Party) is duly registered as a political party with the 3rd defendant.

3. In further reply to paragraph 1 of the statement of claim, the 1st and 2nd defendants state categorically that the 1st plaintiff, Ambassador Yusuf Mamman was at no point in time the National Chairman of the Alliance for Democracy. He was never also the Protem National Chairman of the party.

4. At the registration of the party, Alliance for Democracy, in 1998, the names of all the Protem National Officers were registered with the 3rd defendant as required by law. These Protem National Officers were to hold office until the First National Convention of the party, which took place at the Eagle Square, Abuja on 1st day of November, 2000.
5. In the list of National Officers referred to in paragraph 4 above, Ambassador Jolly Tanko Yusuf was the Protem National Chairman of the party, the 1st plaintiff was the Protem National Publicity Secretary, the 2nd named plaintiff was the Protem Deputy National Chairman and the 3rd named plaintiff was not a Protem National Officer and indeed not a member of the party at the time. Chief Giwa Amu, (SAN) was the registered Protem National Legal Adviser of the Party. Notice is hereby given to the 3rd defendant to produce the list of Protem National Officers of Alliance for Democracy registered with it at the registration of the party in 1998.
6. The defendant was the Gubernatorial candidate of (sic) the Alliance for Democracy in Anambra State in the Governorship election of 1999 while the 1st defendant was a leading party stalwart in Gombe State, before the 1st party congress in the years 2000.
7. The 1st and 2nd defendants admit paragraph 4 of the plaintiffs statement of claim. In addition to the function mentioned in the statement of claim, the 3rd defendant has other statutory duties imposed on it by the law establishing it, and by the Constitution of the Federal Republic of Nigeria, 1999.
8. The 1st and 2nd defendant deny in entirety paragraph 5 of the plaintiffs’ statement of claim and shall at the trial put the plaintiffs to the strictest proof thereof.
9. The 1st and 2nd defendants deny emphatically paragraph 6 of the plaintiffs’ statement of claim and shall at the trial put the plaintiffs to the strictest proof thereof.
10. On the resignation of the Protem National Chairman of the party, late Ambassador Jolly Tanko Yusuf, in December 1999, a leadership struggle for his succession, which was triggered off by the rebellion of the 1st plaintiff, ensued.
11. In utter disregard to the provision of the Constitution of the party, the 1st plaintiff and one Comrade Adamu Song laid claim to the vacant position of Ambassador Jolly Tanko Yusuf as the Protem National Chairman.
12. In Furtherance to its statutory duty to political parties, the 3rd defendant facilitated a reconciliatory meeting of the Protem National Executive Committee of the Alliance for Democracy, which took palce on the 11th day of April, 2000. The 1st defendants shall at the trial rely on the speech delivered by the then Acting Chairman of the 3rd defendant, Alhaji Shehu Musa to the Protem National Executive Committee before the said Executive Committee went into its meeting. Notice is hereby given to the 3rd defendant to produce a copy of this address at the trial.
13. It was decided in the reconciliatory meeting of the Protem National Executive Committee of the party that in order to put to rest the leadership struggle, the first National Convention of the Party should be held so as to produce the elected officers of the party. The 1st and 2nd defendants shall at the trial rely on the communique issued after the said meeting and signed by the 1st plaintiff, the undisputed National Protem Secretary of the party, Dr. Udenta O. Udenta and His Excellency, Otunba Niyi Adebayo.
14. The said meeting of the Protem National Executive Committee referred to above under the hand of the 1st plaintiff, appointed members of the National Convention Committee headed by Otunba Niyi Adebayo and also fixed dates for the various Congresses and National Convention of the party.
15. The 1st and 2nd defendants and others were elected as member of National Executive Committee of the party in the National Convention convoked as per paragraphs 13 and 14 above. Again, the representatives of the 3rd defendants in compliance with its statutory duties were present and observed this convention.
16. The 1st and 2nd defendants deny paragraph 6 and (sic) 7 of the plaintiffs statement of claim and further states that no such convention was held as it (sic) amounts to an illegality and an anti-party offence to hold same. Any election of officers at any other convention (as stated in paragraph 7 of the statement of claim) is null, void and illegal.
17. The 1st and 2nd defendants deny paragraphs 8, 9 and 10 of the plaintiffs statement of claim and shall at the trial put the plaintiffs to the strictest proof thereof. Furthermore, the 1st and 2nd defendants state that the named plaintiffs were present and participated is empanelling the National (sic) Convention Committee headed by Otunba Niyi Adebayo and also in fixing the date of the said convention.
X x x x  x x
23. The 1st and 2nd defendants deny paragraphs 9, 10, 11, 12, 13, 14, of the plaintiffs statement of claim and shall at the trial put the plaintiffs to the strictest proof thereof. Furthermore, the 1st and 2nd defendants state categorically that the 1st plaintiff was never the Protem National Chairman nor the National Chairman by any legal convention as to enable him invoke any Article of the Party’s Constitution to his advantage.
24. In further answer to paragraphs 10 and 11 of the plaintiffs’ statement of claim, the 1st and 2nd defendants stated that the judgment of the Federal High Court Abuja in suit No. FHC/ ABJ/CS/167/2000 delivered on the 24th day of July, 2000 was legal, valid, extant and binding on all the parties between 24th July, 2000 and 28th October, 2002 when the Appeal Court ordered a retrial.
25. The 1st and 2nd defendants state that they were not aware of the letter referred to in paragraph 15 of the statement of claim, as they were not copied the said letter.
26.The 1st and 2nd defendants deny paragraphs 16 and 17 of the statement of claim but state that they were aware that the date for submitting list of candidates has been extended by 30 days from 11th January, 2003.
30. The 10 reliefs sought in the plaintiffs’ statement of claim are matters which touch and concern the internal activities of the Party Alliance for Democracy.
31. The 1st and 2nd defendants therefore urges this court to refuse all the 10 reliefs sought by the plaintiff and dismiss them for being incompetent, an abuse of the court process and an attempt to erode the fragile democracy of this nation.”
In the determination of this appeal, I shall take for resolution the issue as formulated by the appellants.
It is pertinent at this stage to observe that at the end of the pleadings in the lower court, the parties to the dispute had joined issues on:
(a) Whether the 1st plaintiff is the National Chairman of the Alliance for Democracy or whether he was ever a Protem National Chairman of the party?; and
(b) Which of the conventions of the party held –
(iii) at Abuja Gardens, Abuja; or
(iv) at Eagle Square, Abuja on 1st November, 2000 at which National Officers of the said political party were elected is entitled to be regarded as the Convention of the Alliance for Democracy?.”

The following portions of the ruling of the lower court on the interlocutory application to contest the jurisdiction of that court on the subject-matter of the suit are relevant. They are:
“I therefore agree with Chief Molajo, the S.A.N. when he submitted that the very question to be determined is who, amongst the two factors (sic) of the party, is competent to represent the A.D.?”
“It is obvious to me that none of the disputing parties can be allowed until after revolving the (sic) disputation, to present itself as the rightful person to speak for the party, so long as it remains visible that there are accusations of the breach of the contract between the members inferse (sic) as dictated by the party’s constitution, it is in my view justiciable for any of the aggrieved party members to complain to court for redress and I agree with the submission by Molajo SAN that to drive away citizens form (sic) that adjudicative role of the courts towards solving their dispute (sic) is to invite chaos in the polity. (sic)
Mr. Adeniyi, the learned SAN had strongly submitted that the issues at stake deals with a purely internal affairs of the party and that on the authorities of Okafor v. Onuoha; INEC v. Ogho but perhaps none (sic) importantly the case of Ibrahim v. Gaye, the matter will appear to have been signed, sealed and delivered. It is a no go area to use the language of the learned SAN in his eucid (sic) manner of providing a vivid picture of the prohibitive nature of the pronouncements in those authorities. A very close look or reading authorities seem to say exactly what MR. ADENIYI (SAN) said of them, there is however to my mind a very narrow opening which is to the effect that, though, it is not for the court to decide which of the disputing candidates should be the candidates for the party to present as that is not the business of the court, it is to my (sic) justifiable and proper for the court to look into the matter for the purpose of either telling the party that it has not kept to it’s terms of contract with its members where such members have complied with requirements and stipulations of its constitution in the furtherance of any objective of the party towards the full realization of that individual member’s ambition acted in breach of the party’s constitution, but the court in my view can only make a declaratory statement along the line of either the anomalies against the party’s constitution for the propriety of action along with the provisions of the party’s constitution. It cannot go beyond this in terms of my making any enforceable consequential order. It is left for the party to decide whether to follow or not to follow the line of the court’s decision.”
Thereafter, the learned trial Judge held inter alia that the claims of plaintiffs/respondents are justiciable and that the court had no jurisdiction to entertain the suit. As stated earlier in this judgment, he thereafter dismissed the application of the defendants to strike out the claims of plaintiffs.
In arguing this appeal, learned senior counsel for the appellants Mr. Adeniyi Akintola submitted in respect of the only issue formulated for resolution thus:
“that the statement of claim filed by the respondents shows unequivocally that the dispute in this case centers on convening the National Convention and election of officers of the National Executive of a political party.”
Learned senior counsel then argued that the learned Judge having considered the authorities cited before him and concluded that the dispute being one purely of the internal affairs of the political party – Alliance for Democracy (AD) the court should refrain from entertaining jurisdiction, the learned trial Judge created a bundle of contradictions when he further in the judgment went on to say that courts are only forbidden from deciding for a political party which if two or more candidates a political party could sponsor for election but that the court could make a declaration that a political party was in breach of its contract with a member without granting a substantive relief – leaving to the political party the freedom to choose whether or not to obey the declaratory order.
Learned senior counsel further contended that on account of the doctrine of ‘stare decicis’, it was not open for the learned trial Judge to reject decisions of courts superior to it which were cited before him but was bound to follow those decisions of courts in a higher hierarchy to his own. Reliance is placed on Enugwu v. Okefi (2002) 3 NWLR (Pt.650) p. 620.
It is further contended by learned senior counsel that even in the case of Onuoha v. Okafor (1983) 14 NSCC P. 494, where this court in the Enugu Division had previously held that the court would only intervene if there is a breach of proprietary right or breach of contract where damages would assuage the feelings of the aggrieved party member or where there is a statutory provision that gives the court power to do so, the Supreme Court on appeal overruled that holding and held that the question of which of contending candidates a political party would sponsor is more in the nature of a political question which the courts are not qualified to deliberate over. Learned senior counsel therefore urged on this court to allow the appeal.
The 1st, 2nd and 3rd respondents in their joint brief of arguments submitted in respect of the sole issue for determination as follows:
That the complaint of the plaintiffs/respondents as disclosed in their statement of claim is that the defendants/appellants and their supporters have subverted the Constitution of the political party, Alliance for Democracy, in their bid to seize control of the party at national level and that the reliefs sought from the court are directed towards the protection of the constitution of the party. Learned counsel concedes that in general, the position in law is that, on the authority of the rule in Foss v. Harbottle (1843) 2 Hare, 461, disputes which arise within any association of persons must be resolved by a majority decision of its members but contends that the rule is subject to some exceptions two of which are applicable to this case and which differentiate it from the general rule, i.e. –
(i) when the act complained of is alleged to be ultra vires or unconstitutional or otherwise illegal;
(ii) when it is alleged that the personal rights of the plaintiff member have been infringed
and in which an action may be brought to redress the wrong because the act being ultra vires or illegal, a majority vote is not competent to ratify it. Reliance is placed on Balonwu v. Chinyelu (1991) 4 NWLR (Pt.183) p. 30. It is, therefore, contended that the question is not whether one candidate as against another, was the winner in an
internal election but whether, the gathering of the appellants at Eagle Square, Abuja on 1st November, 2000 was a convention of the Alliance for Democracy, duly convened and conducted under the terms of the Constitution.
In the event, it is contended for the 1st, 2nd and 3rd respondents that this court should dismiss the appeal and hold that the claim of the plaintiffs is justiciable.
It is common ground between the parties that Alliance for Democracy is a political party registered by the Independent National Electoral Commission, pursuant to the provisions of S. 222 of the Constitution of the Federal Republic of Nigeria. Exhibit AD1 in the counter-affidavit of the appellants herein sworn to by the Kamal Fagbemi on 24th February, 2003.
It is also common ground that the Constitution of that party is as contained in exhibit YM1 annexed to another counter-affidavit of the 1st plaintiff sworn to on 23rd January, 2003.
The following provisions of the Constitution of the Federal Republic of Nigeria, 1999 relating to political parties are relevant to this appeal:
“222. No association by whatever name called shall function as a political party, unless –
(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;
(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping;
(c) a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;
(d) any alteration in its registered constitution is also registered in the principal office of the Independent National Electoral Commission within thirty days of the making of such alteration;
(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria;
(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.
223.(1)The Constitution and rules of a political party shall-
(a) provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and
(b) ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria.
For the purposes of this section –
(a) the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years; and
(b) the members of the executive committee or other governing body of the political party shall be deemed to reflect the federal character of Nigeria only if the members thereof belong to different states not being less in number than two-thirds of all the States of the Federation and the Federal Capital Territory, Abuja.
224. The programme as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution.”
While a political party is defined in S. 229 as:
“‘political party’ includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor or membership of a legislative house or of a local government council.”
Furthermore, I find the following provisions of the Constitution of the Alliance for Democracy relevant to this appeal – They are:
“Article 6(2) Upon enrolment, a member shall be deemed to have:
(i) accepted to abide by the provisions of the party’s Constitution as well as its policies and programmes;
(ii) accepted to abide by all lawful directives and decisions of the party or any of its organs; and
(iii) accepted to refrain from acts of sabotage against the party.
…………………..”
“9(3) Without prejudice to the above provision, the National Convention shall have the following functions:
(i) To evolve, consider, review and abrogate policies, guidelines and regulations to govern the conduct and administration of the party;
(ii) To consider and approve recommendations on the party’s programmes and projects:
(iii) To interpret and, where necessary, amend and revise the Constitution of the party;
(iv) To take all necessary and legitimate actions to ensure the acquisition by the party of political power through the formation of government (or participation therein) at the local, state and federal levels;
…………………”
“10.1 The National Chairman shall:
(i) be the head of the party, providing good, effective leadership and direction to the party;
(ii) protect and promote the policies of the party;
(iii) summon and preside over the meetings of the National Convention and National Executive Committee;
(iv) appoint members into Ad-hoc Committees and standing committees after due consultations with the National Executive Committee;
(v) authorize expenditures;
(vi) have powers to delegate his duties; give lawful directives to all officers, organs, members and officials at all levels of the party; and exercise a casting vote where necessary;
(vii) ensure thorough supervision and strict compliance with the provisions of the party’s constitution.
(viii) supervise and control all officials of the party;
(ix) exercise all powers vested in him by this Constitution.
12.1. All party posts prescribed or implied by this constitution shall be filled by democratically conducted elections.
2. In the event of nomination, elections or appointment for the formation of, or participation in government, the National Executive Committee shall make rules and regulations for the selection of candidates in consultation with State Executive Committee. All such rules and regulations shall take into consideration and uphold:
(i) the federal character principle and the principle of geographical spread;
(ii) all other factors necessary for the total success of the party at the polls and in government.
………………………..
18(iii) Disciplinary and Arbitration Committee, which shall be headed by a Chairman to be appointed by the party executive council, shall comprise seven members and shall receive, examine, investigate, initiate and propose disciplinary and arbitration matters affecting members or groups of members and submit findings to the appropriate executive committee for consideration and necessary action.”
I have earlier in this judgment identified two questions on which the disputants in this appeal joined issues in the lower court as –
(a) Whether the 1st plaintiff is the National Chairman of the Alliance for Democracy or whether he was ever a Protem National Chairman of the party?; and
(b) Which of the Conventions of the party held
(i) at Abuja Gardens, Abuja; or
(ii) at Eagle Square, Abuja on 1st November, 2000 at which National Officers of the said political party were elected is entitled to be regarded as the Convention of the Alliance for Democracy?.
There is no doubt therefore that the issue in this case concerns the control and management of the political party – the Alliance for Democracy. This is conceded by all the parties to the dispute.
The question then becomes narrowed down to this – whether the dispute is an intra party dispute or it is a dispute concerning the proprietary rights or contractual rights of some of the members of the party vis-a-vis the party itself.
The practice of the court is not to run associations (corporations and unincorporated associations) for members.
The brief of 1st, 2nd and 3rd respondents put the matter very succinctly at p. 11 of the brief when it states that the position of the law is that disputes which arise must be resolved by a majority decision of the members. This is the so called majority rule otherwise known as the rule in Foss v. Harbottle (1843) 2 Hare 461; the decision in which it was first articulated.
Respondents also concede that the rule applies to all associations, whether they be companies, clubs, trade unions or political parties Hodgson v. National and Local Government Officers Association (1972) 1 WLR 130. Respondents, however, made a distinction that to this rule which, with respect to political parties, is known as the ‘domestic affairs’ rule, there are at least two recognized exceptions and each of which exceptions it is contended applies to the circumstances of the case.
The exceptions, according to the respondents are:
(i) when the act complained of is alleged to be ultra vires or unconstitutional or otherwise illegal; and
(ii) when it is alleged that the personal rights of a plaintiff member have been infringed.
Reliance is put on Balonwu v. Chinyelu (1991) 4 NWLR (Pt.l83) p. 30.
In the first instance, and with all due respect to learned counsel, decision in Balonwu v. Chinyelu does not support the submission of learned senior counsel. In that case, CHIGBUE, J.C.A. (as he then was), opined at page 41 thus:
“To me, the acts complained of by the appellant amounted to indiscipline among party members. They border on irregularities in the internal affairs of the party. To me, they are not justiciable in any court of law as the action could not be sustained.”
The learned Justice cited with approval the same case of Hoss v. Harbottle (1843) 2 Hare 461 or 67 E.R 189 with approval.
In the event, that appeal was struck out for want of jurisdiction in the court.
I have looked at the statement of claim of the plaintiffs/respondents including the 10 reliefs which they prayed for in the lower court as well as the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 earlier set out in this judgment.
I find that each of the complaints falls under one of the two questions on which the disputants join issue in the pleadings which I have already set out earlier.
I have also set the complaints of the plaintiffs/respondents and the 10 reliefs claimed by them against the relevant provisions of the Constitution of the Alliance for Democracy, also earlier set out in this judgment; and that each and everyone of the complaints and reliefs touch upon a matter on which there are internal arrangements within the Constitution of the party for its resolution, if plaintiffs had cared to employ the internal channels provided in the Constitution of the Party.
It is the submission in the respondents brief under consideration, that the several declarations and injunctions claimed by the respondents are directed towards the protection of the Constitution of the party and that the complaint of plaintiffs/respondents in this case is that the acts of the 1st, 2nd and 3rd defendants/appellants are ultra vires the Constitution of the party.
As could be seen from the extracts of the Constitution of the Alliance for Democracy earlier quoted in this judgment, that political party, like any other corporation, operates within the guidelines, the powers and duties set out in its constitution. All it’s members are bound by the provisions set out in the party’s constitution. Their respective rights and obligations created by their Constitution can be remedied, if breached by any of its members as provided for in that Constitution.
The failure to have the plaintiffs appointed to any of the national offices in the national executive of the party cannot be said to be in breach of the Constitution or to be ultra vires of the powers of the Alliance for Democracy.
As stated by Lord Denning in Institute of Mechanical Engineers v. Cane (1961) A.C. 696 at 724-
“There is a very real difference in law between these various societies. If you are considering a limited liability company, you know that the purposes of the company are determined exclusively by its Memorandum of Association. So naturally enough, you look at the purposes for which the company was originally instituted. But when you are dealing with a voluntary association of individuals, the doctrine of ultra vires has no place.”
In the view of the law, a registered political party has the same capacity as a natural person. Unless its constitution or statute expressly prohibits it from doing an act, it has capacity to do such act.
Furthermore, looking through the statement of claim, I am unable to find any allegation of the infringement of any personal, rights of the plaintiffs or any claim for damages therefore.
It would be seen from the statement of claim of plaintiffs that the primary aim is to obtain an order of the court which would compel the members of Alliance for Democracy to elect plaintiffs as national officers of the party.
The court, however, is not an appellate body set up by the party under its constitution to hear appeals from unsuccessful candidates in the exercise of nomination and running for elections into the national executive of the party.
It has been held in Onuoha v. Okafor and Others (1983) NSCC Vol. 14 p. 494 that the judicial powers of the courts now defined in S. 6 of the 1999 Constitution cannot be construed to confer jurisdiction on the courts to run and manage political parties and politicians. See ibid at p. 501.
In my humble opinion, the declarations sought for and the reliefs claimed in the statement of claim and in the originating summons of the plaintiffs invited the lower court to give answers to political questions.
It is my humble view that the court in so doing, would be deciding political questions which it is ill-fitted so to do.
(i) Onuoha v. Okafor and Others (1983) 14 NSCC 494;
(ii) Balonwu v. Chinyelu (1991) 4 NWLR (Pt.183) p. 30
(iii) Bakam v. Abubakar (1991) 6 NWLR (Pt.199) p. 564.

In the event, it is my respectful view that the lower court ought to have held that the subject of the complaints and claims in the originating summons of the plaintiffs/respondents, being an intra – party dispute on an internal affair of the Alliance for Democracy, a registered political party, concerned complaints on which it had no jurisdiction and it ought to have struck out the suit.
I therefore hold that this appeal has merit. I allow it. I set aside the ruling of the lower court delivered on 3rd February, 2003. I strike out the substantive suit No. FCT/HC/CV/1415/2002.
I make no order as to costs. This is in an endeavour to promote reconciliation between the parties.

MUHAMMAD, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Oduyemi, J.C.A. I agree with him that the appeal has merit and has to be allowed. I allow the appeal and set aside the ruling of the lower court of 3/2/2003. I strike out the substantive suit No. FCT/HC/CV/1415/2002 for want of jurisdiction. It is trite law that an intra party governance is entirely within the province of the party. It is not the role of the court to make appointments of persons to hold party offices. The question of the candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer.
For the fuller reasons contained in the lead judgment of my learned brother, Oduyemi, J.C.A., I abide by all the consequential orders made by him including no order as to costs.

BULKACHUWA, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, Oduyemi, J..CA. I agree with his conclusions that the internal affairs of political parties are exclusive to the parties and therefore not within the competence of the trial court – Alhaji Balarabe Musa v. Peoples Redemption Party (1981) 2 NCLR 763. I allow the appeal, set aside the ruling of the lower court delivered on the 3rd of February, 2003. I strike out the substantive case before the trial court. I make no orders as to costs.

Appeal allowed.

 

Appearances

Adeniyi Akinola, SAN (with him, o. Olaniyan [Mrs]) For Appellant

 

AND

Ayo Obe [Mrs] (with him, Adesina Oke, Esq.) For Respondent

 

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