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APC & ORS v. PDP & ORS (2022)

APC & ORS v. PDP & ORS

(2022)LCN/16237(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, June 10, 2022

CA/K/36/M/2022(R)

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. ALL PROGRESSIVES CONGRESS (APC) 2. ABDULLAHI JA’AFARU SAIDU 3. ISAH ABDULHAMI 4. RABIU IBRAHIM 5. JAMILU ALIYU 6. HUDU DAYYABU 7. AMINU AHMED APPELANT(S)

And

1. PEOPLES DEMOCRATIC PARTY (PDP) 2. HON. SULEMAN YAHAYA RICHIFA (PDP Chairmanship Candidate for Soba Local Government in the 4th September, 2021 At Government Council Election) 3. ABDULMUMINI BAWA (PDP Vice-Chairman Candidate For Soba Local Government In The 4th September, 2021 Local Government Council Election) 4. JAFARU GARBA (PDP Candidate For Gimba Ward, Soba Local Government In The 4th September, 2021 Local Government Council Election) 5. YARO ZAKARI (PDP Candidate For Kwassalo In The 4th September, 2021 Local Government Council Election) 6. ABDULRAUF ALIYU (PDP Candidate For Richifa Ward, Soba Local Government In The 4th September, 2021 Local Government Council Election) 7. ABDULRAHMAN H. ADAM (PDP Candidate For Kinkiba Ward, Soba Local Government In The 4th September, 2021 Local Government Council Election) 8. LAWAL ABDULLAHI (PDP Candidate For Maigana Ward, Soba Local Government In The 4th September, 2021 Local Government Council Election) 9. KADUNA STATE INDEPENDENT ELECTORALCOMMISSION 10. KADUNA STATE INDEPENDENT ELECTORAL COMMISSION, RETURNING OFFICER SOBA LOCAL GOVERNMENT 11. KADUNA STATE, RETURNING OFFICER OF GIMBA WARD OF SOBA LOCAL GOVERNMENT 12. KADUNA STATE, RETURNING OFFICER OF KWASSALLO WARD SOBA LOCAL GOVERNMENT 13. KADUNA STATE, RETURNING OFFICER OF RICHIFA WARD OF SOBA LOCAL GOVERNMENT 14. KADUNA STATE, RETURNING OFFICER KINKIBA WARD OF SOBA LOCAL GOVERNMENT 15. KADUNA STATE, RETURNING OFFICER OF MAIGANA WARD OF SOBA LOCAL GOVERNMENT RESPONDENT(S)

 

RATIO

THE DOCTRINE OF “ELECTION OF REMEDIES”

The doctrine of “election of remedies” as defined by the authors of the Black’s Law Dictionary (6th edition) at P.518 means the liberty of choosing or the act of choosing one out of several means afforded by law for the redress of an injury or one out of several available forms of action. See also MOHAMMED & ORS V. HUSSEINI & ORS (SUPRA) Per Ogundele JSC at pp 85 – 86.
The doctrine provides that if two or more remedies exist which are repugnant and inconsistent with one another, a party will be bound if he has chosen one of them. The doctrine arises when one having two co-existent but inconsistent remedies chooses to exercise one, in which event he loses his right thereafter to exercise the other.
The doctrine therefore connotes that where a party has the choice of two rights, either of which he is at liberty to choose or adopt, he cannot after adopting one assert the other.
PER WAMBAI, J.C.A.

WHETHER OR NOT THE COURTS CAN DETERMINE SUBSTANTIVE MATTERS AT THE PRELIMINARY STAGE OF PROCEEDINGS

Courts are enjoined not to delve into substantive matters at the preliminary stage. The Court must restrict itself to the Preliminary matters and resist any invitation or urge to delve into the substantive issues or merit of the case at the preliminary stage of the case. Any pronouncement on the substantive case will be in excess of the power of the Court. It will be ultra vires the powers donated to the Court at that precursory stage. See ILORI V. BENSON (2008) FWLR (Pt. 26) 1846 at 1859, ONWUEGBU V. IBRAHIM (1997) 3 NWLR (Pt. 491) 110. In ATTORNEY GENERAL OF FEDERATION V. ATTORNEY GENERAL ABIA STATE & ORS (2001) LPELR – 24862 (SC) the apex Court made the point that to prejudge the issues in the substantive suit yet to be decided is not permissible by law. It will therefore amount to this Court determining the appeal even before it is properly presented before us or to nailing and exterminating it on the cross even before being considered. For us to pronounce the said issue at this stage will be prejudging the appeal itself. The less we talk about the substantive appeal at this stage the better for us. Therefore, when we get to the bridge if ever we get there, we shall cross it. PER WAMBAI, J.C.A.

THE RIGHT OF APPEAL TO THE COURT OF APPEAL BY A NON-PARTY AGAINST THE DECISION OF A HIGH COURT OR FEDERAL HIGH COURT

The right of appeal to the Court of Appeal by a non-party against the decision of a High Court or Federal High Court is as provided by Section 243 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The right is exercisable in Civil Proceedings by a person having an interest in the matter.
The guiding principles have been set out in a plethora of cases by the apex Court. Prominent and the oft quoted among them includes the case of C.P.C. V. NYAKO (Supra) cited and relied upon by all Counsel in this application. This is what the apex Court said:
“The law is well settled that for an applicant to be entitled to be granted the relief of leave to appeal as a person having interest in the matter, that applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in this application the applicants must show that they are persons who are aggrieved, who have suffered legal grievances, against whom decisions have been pronounced which have wrongfully deprived them of something or wrongly refused them of something or wrongly affected their title to something”.
What this translates to is that for an applicant to succeed in an application for leave to appeal as an interested party, he must not only show that he has an interest in the matter but also that the judgment of the Court he seeks to appeal against prejudicially affects his interest. He must show that:
(i) He is a person aggrieved.
(ii) He has suffered legal grievance and
(iii) He is a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or has wrongfully affected his title in something.
In the latter case of CHUKWU V. INEC (2014) 10 NWLR (Pt. 1415) 285 relied upon by the learned Counsel for the 2nd set of Respondents, the sufficient interest was described as interest directly affecting the person, not obliquely, before the person can validly seek leave to appeal as an interested person.
PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgement): The motion of the applicants filed on 11/2/2022 is principally for leave to appeal the decision of the lower Court delivered on 27/9/2021 in suit No. KDH/KAD/865/2021.

The background facts leading to this application are that on the 4th of September, 2021 the Kaduna State Independent Electoral Commission (the 9th Respondent) conducted elections into the Local Government Councils including Soba Local Government Council of Kaduna State.

The 1st Respondent (the Peoples Democratic Party) and the 1st interested party/Applicant (the All Progressive Congress) were among the Political Parties that participated at the election and sponsored their candidates.

At the end of the election, the Soba Local Government Chairmanship and Councillorships election of GIMBA, KWASSALLO, RICHIFA, KINKIBA and MAIGANA wards were said to be inconclusive in consequence of which the election results were not declared.

​The 1st – 8th Respondents, as plaintiffs before the Kaduna State High Court, took out an Originating Motion for an Order of mandamus compelling and/or directing the Defendants especially the 3rd to 7th Defendants to perform their statutory duties under the Kaduna State Electoral Law, 2021 by collating and announcing the result of the Chairmanship and Councillorship election held in Soba Local Government on the 4th day of September, 2021 at their various Ward Collation Centres i.e. Gimba, Kwasallo, Richifa, Kinkiba and Maigana Wards and polling units of the wards respectively and to announce the result and declare the winners of the election.

The 9th to 15th Respondents filed a 9-paragraph counter-affidavit to oppose the application. The All-Progressive Congress (APC) and its candidates/interested Parties/Applicants were not parties to the application. In its judgment delivered on 27th September 2021, the lower Court Per E.Y.B. LOLO J granted all the reliefs.

By the said judgment of the lower Court, the 3rd – 7th Respondents were compelled and directed to collate and announce the results of the election held in Soba Local Government and to issue the winners of the Chairmanship and Councillorship elections in the stated wards with Certificates of return.

​Consequent upon being aware of the said judgment, the interested parties/Applicants filed a Motion on Notice before the lower Court for leave to appeal the said judgment of the 27/9/2021. The 9th – 15th Defendants/Respondents opposed the application. In its Ruling delivered on 27th January, 2022 refusing the application for leave, the learned trial judge held inter alia:-
1. The Applicants have failed to show by the facts in the affidavit in support and the record of proceedings in this Court that they have sufficient interest to appeal the decision of this Court as interested parties.

It is sequel to the refusal of their application at the lower Court for leave to appeal the judgment of the 27/9/2021 that the applicants by their motion of 11th February 2022 approached this Court seeking an order granting them leave to appeal against the said judgment of the High Court; leave to rely on and make use of the proposed Notice of Appeal attached as Exhibit F to the application; leave to make use of and rely on the record of appeal in the said suit KDH/KAD/865/2021 delivered on 27/9/2021 for the purpose of prosecuting the appeal before this Court, and accelerated hearing of the application.

​The grounds for the application are:-
2. The lower Court delivered judgment in suit No. KDH/KAD.865/2021 between PEOPLES DEMOCRATIC PARTY (PDP) & 7 ORS. V. KADUNA STATE INDEPENDENT ELECTORAL COMMISSION & 6 ORS. on 27/9/2021 granting the order of mandamus compelling and directing the 9th – 15th Respondents to announce and declare the winner of the Councillorship election held in Gimba, Kwassolo, Richifah, Kinkiba, Maigana wards of Soba Local Government; the result of Chairmanship election in Soba Local Government.
3. That the 2nd – 7th Applicants contested the said election under the platform of the 1st Applicant:
a. The 2nd Applicant contested for the Chairmanship of Soba Local Government Area.
b. The 3rd Applicant contested Councillorship for Maigana Ward of Soba Local Government Area.
c. The 4th Applicant contested Councillorship of Gimba Ward of Soba Local Government Area.
d. The 5th Applicant contested Councillorship for Richifah Ward of Soba Local Government Area.
e. The 6th Applicant contested Councillorship for Kinkiba Ward of Soba Local Government Area.
f. The 7th Applicant contested Councillorship for Kwassallo Ward of Soba Local Government Area.
4. That the polling officers of the respective polling units i.e. 10th – 15th Respondents absconded with electoral materials particularly election results Forms KD/SIEC/8A (1) thereby making collation of results impossible. The election was therefore declared inconclusive by the 9th – 15th Respondents.
5. That 1st – 8th Respondents in paragraph 13 of the Affidavit in support of the Application for Mandamus deposed that because 10th – 15th Respondents absconded with the said electoral Forms, the 9th Respondent collated result on Exhibit F which was not the Original Form. The said collated on Exhibit F is an improvisation.
6. That the 9th Respondent have (sic) stated in paragraph 5 of its Counter Affidavit that the election was inconclusive.
7. That the improvised Exhibit F relied on by the lower Court does not qualify as a public document.
8. That the Applicants had applied for leave to appeal as interested parties at the trial Court but same was refused on the ruling delivered on 27/01/2021.

​It is supported by 11 paragraph affidavit, 7 annexures marked Exhibits A, B, C, D, E, F & G as well as written address.

Upon service of the motion on the 1st – 8th Respondents and the 9th – 15th Respondents (hereafter referred to as the 1st & 2nd sets of Respondents respectively), each of the two sets of Respondents sought and were granted extension of time on 9/5/2022 to file counter-affidavit and written address against the motion. The learned Senior Counsel to the Appellants was also granted extension of time to file further and better affidavit and written addresses to the 1st & 2nd sets of Respondent’s counter-affidavits and written addresses.

In his written address in support of the motion learned Senior Counsel D.C. Enwelum, SAN, leading other Counsel, O.I. Habeeb Esq, Sule Shu’aibu Esq, Joel Adamu Esq and B.A. Tanko Esq formulated a sole issue for determination to wit:-
WHETHER THE APPLICANTS HAVE SHOWN BY THE FACTS IN THE AFFIDAVIT IN SUPPORT AND THE RECORD OF PROCEEDINGS IN THIS CASE THAT THEY HAVE SUFFICIENT INTEREST TO APPEAL THE DECISION OF THE TRIAL COURT AS AN INTERESTED PARTIES.

Arguing the issue and contending that the applicants have satisfied the conditions for the grant of the application, learned D.C. Enwelum, SAN, referred to a number of judicial authorities including the case of CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.) V. ADMIRAL MURTALA NYAKO (RTD) & 2 ORS (2011) 17 NWLR (Pt. 1677) 451 at 481 C – F where Mahmood Muhammad JSC (as he then was) (later the CJN) stated that for an applicant to be granted leave to appeal as a person having interest in the matter, he must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against prejudicially affects his interest. He must show that he is an aggrieved person and has suffered legal grievance against the decision which has wrongfully deprived him of something or wrongfully refused him something or has wrongfully affected his title to something.

​The learned silk referred to paragraphs 1, 4, 5 – 12 and 14 of the supporting affidavit, Exhibits C & D, particularly paragraph 13 of Exhibit C where the 1st – 8th Respondents deposed that the 10th – 15th Respondents absconded with the relevant Electoral Forms as a result of which the results of the election were collated on pieces of paper.

He also referred to paragraph 5 of Exhibit D where the 9th Respondent deposed that the election was inconclusive consequent upon which it could not issue any certificate of return.

Reference was made to Exhibits A & B and paragraphs 4 – 8 to show that the 2nd – 7th applicants were sponsored by the 1st Applicant to contest the said election and being contestants at the election declared inconclusive by the 9th Respondent which declaration affected the applicants, the applicants have equal and identical interest in the said election and its free outcome as the 1st – 8th Respondents.

The pronouncement of the trial Court directing the 9th – 15th Respondents to proceed to declare the result of an election which the 9th Respondent had declared inconclusive, and without hearing the applicant before making the order the learned Senior Counsel submitted, undermined the interest of the applicants.

​It was also submitted that the order of mandamus does not lie to compel a completed act, the 9th Defendant having in performance of its public duty pursuant to Sections 55 and 56 of the Kaduna State Electoral Law 2021 performed its duty it was no longer open to seek an order of mandamus to compel a completed act citing the cases of BENARD AMASIKE V. THE REGISTRAR – GENERAL, C.A.C. & Anor (2010) 13 NWLR (Pt.112) 337 at 339 E-F; MR SUMMA MUHAMMAD AND 23 ORS V. MINISTER FEDERAL MINISTRY OF ENVIRONMENT, HOUSING AND URBAN DEVELOPMENT & 5 ORS (2018) 16 NWLR (Pt. 112) 685 at 702 F AND COL. HALILU AKILU & 1 OR. V. CHIEF GANI FAWEHINMI (1989) 3 NWLR (Pt. 112) 685 at 702. F.

That once a public function has been performed, an order of mandamus cannot lie to compel a performance of public act to the advantage of a particular party, citing the case of CHIEF GANI FAWEHINMI V. INSPECTOR GENERAL OF POLICE (2002) 5 SC 63 at 74.

On the urgency in the application, he referred to Paragraph 13 of the affidavit in support to submit that the Voters in Soba Local Government are interested in the closure of all matters related to the election urging us to give the application a speedy hearing.

​DR. A.A ADEWOLE Esq. for the 1st set of Respondents (1st – 8th Respondents) in arguing his opposition to the application relied on their 16-paragraph counter-affidavit and four annextures marked exhibit PDP1, PDP2, PDP3 & PDP 4.

To guide his argument, he formulated two issues, namely: –
“1. Whether the Applicants have failed to show that they are entitled to the grant of leave to appeal the decision of this Honourable Court dated 27th September, 2021 as interested persons/parties.
2. Whether the present application constituted an abuse of the Court process, in view of the election petitions filed by the Applicants as per Exhibits ‘PDP 1’ ‘PDP 2’, ‘PDP 3’ and ‘PDP 4’.”

In arguing his issue NO. 1 and contending that the applicants did not disclose an interest in the subject matter of the suit, learned counsel submitted that the guiding principles for the grant of such application have been set out by the apex Court and he called in aid the cases of C.P.C AND I OR V. ADMIRAL MURTALA NYAKO (SUPRA) and in RE-MADAKI (1990) 4 NWLR (Pt. 143) 266 AT 272 B -H where the Court held that the acid test for determining the merit of the application of this nature is whether the party could have been joined in the suit. He submitted that the party must not only state but must show that he suffered a legal grievance in the sense that the decision has deprived him of something or has wrongfully refused him something which he had a right to demand. He must show that he is genuinely aggrieved by the decision.

He also filed a list of additional authority in which he cited and relied on the cases of D.D. IKONNE V. COMMISSIONER OF POLICE, IMO STATE & ANOR. (1986) 3 NWLR (Pt. 36) 473, relied upon by the trial Court, and the case of OWENA BANK (NIG) PLC V. N.S.E Ltd (1997) 8 NWLR (Pt. 516) 1 at 11 per Mohammed JSC.

Additionally, counsel referred to the declaration of his Court in ENWO – IGARIWEY and ANR V. ANOZIE AND ORS (2018) LPELR 45766 which decided that the party must go further to depose in detail in his affidavit to show (1) his interest in the matter, (2) why he was not a party in the trial Court and (3) good reasons for the delay in the application of extension of time is sought.

​Insisting that the Applicants did not disclose that they have been prejudiced by the order of 27/9/2021 which was only directed at the 9th Respondent to perform its constitutional and statuary duty, learned counsel submitted that applicants have not shown how any part of that decision wrongfully deprived them of something or refused them something or affected their title.

​It was submitted that from the totality of the applicants’ affidavit the only interest they have shown is the participation in the election which only entitles them either to exercise the same action as the 1st – 8th Respondents against the 9th Respondent or to file an election petition against the outcome of the declaration and return made by the 9th Respondent, which they had done and having done so, learned Counsel wonder why the applicants suddenly feel compelled to appeal what they had challenged by an election petition.

He submitted that the applicants’ argument that the directive of the trial Court to the 9th Respondent to declare the results undermined their interest only begs the question of what role the applicants can play in a suit seeking an order of mandamus compelling a public officer to perform its constitutional duty.

​Moreover, he argued further, the 1st Applicant and its candidate for the election into the office of Councilor for Maigana Ward of Soba Local Government Counsel were declared winners of the election after the Court ordered collation and declaration of Result. It was thus submitted that the decision of the Court is unassailable urging us not to disturb same.

On his issue two that the application constitutes an abuse of process, learned Counsel referred to the case of MOHAMMED V. HUSSEINI (1998) LPELR -1896 (SC) to submit that by the doctrine of election of remedies which covers a wide range of cases such as the instant case, where a party has the choice between two legitimate legal procedural remedies, he has the option of which procedure to adopt. That the purpose of this application for leave to appeal is to set aside the declaration made by the 9th Respondent in the election of the office of chairman Soba Local Government and the affected Councilors which is the same goal of the election petition filed by the applicants since the two processes seek to achieve the same goal urging us to find this application as an abuse of Court process.

​On behalf of the 9th -15th Respondents, Ibrahim G. Adamu Esq. filed a 7 paragraph counter-affidavit and a written address in opposition to the applicant’s motion wherein he nominated a sole issue for determination to wit:-
“Whether in the circumstances of this case the applicants are entitled to the grant of leave to appeal the decision of the lower Court as an interested party?”

The submission of the learned Counsel in contending that the applicants did not show their real or tangible interest or grievance or any injury suffered against the judgment of the lower Court to entitle them to the grant of the leave sought is in pari materia with that of the learned Counsel for the 1st set of Respondents, and relied on the same case of C.P.C V. NYAKO (supra) in addition to the cases of CHUKWU V. INEC (2014) 10 NWLR (Pt. 1451) 285, BALA V. DIKKO (2013) 4 NWLR (Pt. 1343) 52 after likening the case of the applicants to that of a student who wrote an examination and is not keen on knowing the result or even of blocking the result and submitted that on the strength of the cases, the applicants are not entitled to the leave sought. That even the proposed Notice of appeal Exhibit F, does not disclose any reasonable or triable grievance or prejudice suffered by the Applicants. 

Counsel’s only additional submission is that the application is mala fides as the suit between the 1st -8th Respondents and the 9th – 15th Respondents was a public issue which the applicants ought to have heard.

In his reaction to the counter-affidavit of the 1st set of Respondents (1st -8th Respondents), learned Senior Counsel for the Appellant filed a 16-paragraph further and better affidavit to which is annexed Exhibits A-C4.

Reacting to the submission of the learned Counsel to the 1st set of Respondents, the learned silk submitted that the applicants have copiously deposed both in their affidavit in support and their further and better affidavit how their interest have been affected by the judgment of the lower Court to entitle them to the grant of the leave sought to appeal as interested parties. Reference was made to paragraphs 11, 12 of the supporting affidavit and 12, 13, 14 and 15 of the further and better affidavit.

Again, he called in aid the cases of C.P.C V. Nyako (supra) quoting extensively there from to submit that once an applicant is able to demonstrate to the satisfaction of the Court that the judgment subject of his application for leave as an interested party has affected his interest as they have done, the applicant is taken to have satisfied the requirement of the law to justify the exercise of the Court discretion in his favour. OJUKWU V. MILITARY GOVERNOR OF LAGOS STATE and 2 ORS (1985) 2 NWLR (Pt. 10) 806 at 815 was also cited in support.

On the submission for the 1st set of Respondents that the doctrine of election of remedies renders this application an abuse of process, it was submitted on the authority of the case of MOHAMMED V. HUSSEINI (1998) 14 NWLR (Pt. 584) 108 at 140 per Muhammad JSC that the right of appeal is not an alternative remedy to any other proceedings including an election petition and this does not apply to the particular facts of the instant application where the applicants are trying to activate their constitutional right of appeal as interested parties.

​Learned ENWELUM, SAN, contended further that as the originating motion of the 1st set of Respondents was filed before the Lower High Court and not before the Election Tribunal, it was a pre-election matter and this application being for leave to appeal the pre-election matter, the existence of an Election Tribunal cannot transmute the matter from a pre-election to a post-election one. He cited the cases of DR. CHIBGO SAN ELIGWE V. OKPOKRI NWANAKA OKPOKRI AND 2 ORS (2015) 2 NWLR (Pt. 1443) 348 at 374 C-I, BISI KOLAMOLE and ORS V. OGUNDELE GABRIEL FOLUNSHO and 4 ORS (2009) 8 NWLR (Pt. 1143) 338 at 395, urging us to grant the application.

Similarly, to the counter-affidavit of the 2nd set of Respondents, the Applicants learned Senior Counsel filed a 7 paragraph further and better affidavit with three annexures marked Exhibits A, B, and C.

​In responding to the issues of law and other points raised in the written address of the 2nd set of Respondents, the learned silk on the Respondents’ contention that applicants have not shown tangible injury to their interest, title or any prejudice, referred to Paragraphs 6, 7, and 8 of the further and better affidavit to submit that the deposition of deponent of the counter-affidavit, Gladys Ezekiel Adamu, whose deposition at paragraph 4 (1), (2), (3), (4) and (5) of the counter-affidavit materially conflicts with and contradicts Exhibits A and B asserting the direct opposite of each other, is unreliable and the depositions in paragraphs 4(1), (2), (3), (4) & (5) of the counter-affidavit should be treated as untrue, stating that she had stated earlier that:
1. That non-joinder of the other parties that contested the election with the 1st -8th Respondent was fatal to the suit;
2. That the said election was declared inconclusive by the 9th Respondents
3. That the 3rd – 15th Respondents could not be traced.

He cited the cases of AKINYEDE OLAIYA V. THE STATE (2018) 10 NWLR (Pt. 1626) 1 at 23 D-F, JOHN IDAGU V. THE STATE – (2018) 15 NWLR (Pt. 1641) 122.

Reference was also made to the written address of the learned Counsel, Ibrahim G. Adamu in support of his preliminary objection who contended at paragraphs 4.3, 4.4 and 4.5 that non-joinder of the other parties to the election affected the jurisdiction of the lower Court. By all these, he argued, the Counsel to 2nd set of Respondents is only approbating and reprobating which is not allowed, citing among others the cases of GARKUWA PINA V. JAGABA MAI ANGWA (2018) 15 NWLR (Pt. 1643) 43, at 442 BAMIDELE AND 1 OR. V. RAFIU ADE JARE BELLO AND ORS (2020) 15 NWLR (Pt. 1748) 506 at 529 PER M.U. DANJUMA JCA and AJIDE V. KELANI (1985) 3 NWLR (Pt. 12) 248 at 269 C-D per Oputa JSC.

It was submitted that being an election matter the only interest applicants are required to show is that of participation at the election which does not include any choices in action as submitted by the 9th -15th Respondents.

Our attention was drawn to paragraphs 2.4, 2.5, 4.8. of the Counsel’s written address dated 19/4/2022 to submit that learned Counsel to the 2nd set of Respondents used bad language in his address which the Courts have decried, citing the cases of C.C. CHUKWU V. INEC & ORS (2014) 10 NWLR (Pt. 1415) 385, at 419, ALH. ATIKU ABUBAKAR GCON V. ALH. UMARU MUSA YAR’ADUA (2008) 19 NWLR (Pt. 1120) 176 per TOBI JSC.

He argued that the phrases employed by the learned Counsel even run counter to his position in exhibits A and B attached to the further and Better Affidavit, wherein he had submitted that the non-joinder of the applicants at the lower Court affected the validity of the entire proceedings.
It was also submitted that the application was not made mala fides.

ISSUES FOR DETERMINATION
Having rendered the summation of the argument of all Counsel for and against the application, it seems clear that two issues stick out for determination, to wit:-
(1) Whether the application constitutes an abuse of Court process.
If the answer is in the negative,
(2) Whether the applicants have shown sufficient interest to entitle them to be granted leave to appeal the decision of the lower Court of 27/9/2021 as interested parties.

ISSUE NO.1
Whether the application constitutes an abuse of Court process.
This issue arises from the 2nd issue postulated by the learned Counsel for the 1st set of Respondents, Dr. A. A. Adewole whose contention is that by the doctrine of “election of remedies” the applicants who have the option of choice between two legal procedures having by Exhibits PDP 1, PDP 2, PDP 3 and PDP 4 filed an election petition the goal of which was to set aside the declaration made by the 9th Respondent which is what the leave sought if granted is aimed at achieving, the filing of the election petition renders this application an abuse of Court process, as he cannot exercise both options.
​Learned Counsel for the Applicants, Enwelum, SAN, however, disagrees with that position and drawing his strength from the decision of the apex Court in the case of MOHAMMED V. HUSSEINI (1998) 14 NWLR (Pt. 584) 108 at 140 contends that the said “election of remedies” principle does not apply to estop the applicants from seeking leave to appeal the decision as the constitutional right of appeal is not an alternative remedy to an election petition.

The doctrine of “election of remedies” as defined by the authors of the Black’s Law Dictionary (6th edition) at P.518 means the liberty of choosing or the act of choosing one out of several means afforded by law for the redress of an injury or one out of several available forms of action. See also MOHAMMED & ORS V. HUSSEINI & ORS (SUPRA) Per Ogundele JSC at pp 85 – 86.
The doctrine provides that if two or more remedies exist which are repugnant and inconsistent with one another, a party will be bound if he has chosen one of them. The doctrine arises when one having two co-existent but inconsistent remedies chooses to exercise one, in which event he loses his right thereafter to exercise the other.
The doctrine therefore connotes that where a party has the choice of two rights, either of which he is at liberty to choose or adopt, he cannot after adopting one assert the other.

It is to be noted that what is before us is an application for leave to appeal against the decision of the High Court (the lower Court) in an action for Mandamus to compel a public officer to perform its public function. It is that decision of the High Court that is sought to be appealed against. By the application, the interested parties/Applicants are seeking to challenge the propriety of the orders of the High Court in the mandamus proceedings. Going by the decision of the apex Court in the case of MOHAMMED V. HUSSEINI (SUPRA) cited by the learned Silk for the Applicants, the right of appeal is not an alternative remedy to any proceeding in a Court of law. It is a right given by the Constitution and Rules of Court. 

What the present application seeks is an order for leave to appeal the decision of the lower Court in the mandamus proceedings and not the election petition.

​Looking at the reliefs sought by the applicants on their proposed Notice of appeal the prayer is for an order setting aside the said judgment of the lower Court delivered on 27/9/2021 and the dismissal of the claims of the 1st – 8th Respondents.

On the other hand, the reliefs on the face of Exhibit PDP 1 are the nullification of the return of the 1st, 2nd, & 3rd Respondents (therein) and the declaration of the petitioners (Applicants herein) as duly elected, or in the alternative, an order for the collation and declaration of results which were not collated; that election be conducted in the polling units where election was not conducted and the results from polling units not signed by the presiding officers be nullified. The reliefs are not the same.

The question as argued by learned Dr A.A. Adewole Esq that the ultimate effect of the appeal is to set aside the declaration made by the 9th Respondent to the office of Chairman and councilors is a matter for consideration in the appeal if the leave is granted.

Courts are enjoined not to delve into substantive matters at the preliminary stage. The Court must restrict itself to the Preliminary matters and resist any invitation or urge to delve into the substantive issues or merit of the case at the preliminary stage of the case. Any pronouncement on the substantive case will be in excess of the power of the Court. It will be ultra vires the powers donated to the Court at that precursory stage. See ILORI V. BENSON (2008) FWLR (Pt. 26) 1846 at 1859, ONWUEGBU V. IBRAHIM (1997) 3 NWLR (Pt. 491) 110. In ATTORNEY GENERAL OF FEDERATION V. ATTORNEY GENERAL ABIA STATE & ORS (2001) LPELR – 24862 (SC) the apex Court made the point that to prejudge the issues in the substantive suit yet to be decided is not permissible by law. It will therefore amount to this Court determining the appeal even before it is properly presented before us or to nailing and exterminating it on the cross even before being considered. For us to pronounce the said issue at this stage will be prejudging the appeal itself. The less we talk about the substantive appeal at this stage the better for us. Therefore, when we get to the bridge if ever we get there, we shall cross it.

In this circumstance, we do not consider this application as an abuse of process. This issue is resolved in favour of the applicants.

ISSUE NO. 2
Whether the applicants have shown sufficient interest to entitle them to be granted leave to appeal the decision of the lower Court of 27/9/2021 as interested parties.

The centerpiece of this issue is whether by the processes before this Court including the record of the lower Court, the affidavits and exhibits attached to the application as well as the counter-affidavits and exhibits against the application, the applicants have shown that they have sufficient interest in the matter as required by law to entitle them to the leave of this Court to appeal the Judgment of the lower Court delivered on 27/9/2021 as interested parties.

The right of appeal to the Court of Appeal by a non-party against the decision of a High Court or Federal High Court is as provided by Section 243 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The right is exercisable in Civil Proceedings by a person having an interest in the matter.
The guiding principles have been set out in a plethora of cases by the apex Court. Prominent and the oft quoted among them includes the case of C.P.C. V. NYAKO (Supra) cited and relied upon by all Counsel in this application. This is what the apex Court said:
“The law is well settled that for an applicant to be entitled to be granted the relief of leave to appeal as a person having interest in the matter, that applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in this application the applicants must show that they are persons who are aggrieved, who have suffered legal grievances, against whom decisions have been pronounced which have wrongfully deprived them of something or wrongly refused them of something or wrongly affected their title to something”.
What this translates to is that for an applicant to succeed in an application for leave to appeal as an interested party, he must not only show that he has an interest in the matter but also that the judgment of the Court he seeks to appeal against prejudicially affects his interest. He must show that:
(i) He is a person aggrieved.
(ii) He has suffered legal grievance and
(iii) He is a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or has wrongfully affected his title in something.
In the latter case of CHUKWU V. INEC (2014) 10 NWLR (Pt. 1415) 285 relied upon by the learned Counsel for the 2nd set of Respondents, the sufficient interest was described as interest directly affecting the person, not obliquely, before the person can validly seek leave to appeal as an interested person.

Now, have the applicants met these requirements?
To start with, the interested parties/applicants as did the 1st – 8th Respondents contested the same election of the 4/9/2021 conducted by the 9th Respondent. Exhibits C – C4 attached to the applicants’ further and Better Affidavit which are the Nomination of candidates’ Forms for the election show that the 1st Applicant duly sponsored the 2nd– 7th Respondents for the said election. This fact was not and could not have been denied by the 1st – 8th Respondents at the lower Court, or even at this Court in the face of exhibits C – C4.

​As contestants in the election, it is without doubt that the applicants have an interest in the matter not only in the outcome of the election but also in any action arising from or affecting the election. It will be vain and idle to argue otherwise.

On whether the judgment sought to be appealed against prejudicially affects the applicants, the answer lies in the orders made by the Court. In its judgment on the motion of the 1st set of Respondents for mandamus, the Court made orders directing and compelling the 9th – 15th Respondents to collate and announce the results of the chairmanship and councillorship election in Soba Local Government Area and to declare the winners of the election.

Applicants deposed that this order was prejudicial to their interest. Similarly, the 1st – 8th Respondents at paragraphs 10 and 11 of their affidavit in support of the Originating Motion at the lower Court deposed that the 10th – 15th Respondents absconded from the ward collation centres thereby refusing to perform her administrative duties (See Exhibit D to the Further and Better Affidavit).

​That because of this fact, it became impracticable for the 10th Respondent to collate the results and same was declared inconclusive. They also deposed through Gladys Ezekiel Adamu that the plaintiffs (1st – 8th Respondents) were not the only party or candidates that contested the said election and that other parties were not joined.

The attempt made in the counter-affidavit of the 1st set of Respondents to retract these depositions in the affidavits in support of their Originating Motion for Mandamus by approbating and reprobating only renders their deposition in the counter-affidavit to the motion more particularly in the face of exhibit D, unreliable. The admitted fact on record is that the election was declared inconclusive due to the non-collation of the results at the affected ward levels. That the lower Court directed the collation and announcement of the result of the inconclusive election pursuant to the motion of the 1st – 8th Respondents when the Applicants who were contestants at the same election were not parties to the suit and thus were not heard before the order was made. It is this same decision which Respondents admit was given when the applicants who have equal and identical interest with the 1st set of Respondents were not parties to the suit that the learned SAN for the applicants submitted, and rightly too, has prejudicially affected the interest of the applicants having been made behind their back.

Undeniably, the orders prejudicially affected the interest of the applicants who were excluded from the proceedings leading to the orders so made. Can it be plausibly argued that the outcome of the judgment has not affected the Applicants? Methinks not. It will be far-fetched to say that the orders made by the lower Court compelling and directing the 9th – 15th Respondents (2nd set of Respondents) to proceed to collate and announce the result of an inconclusive election when the applicants were not heard in the application does not prejudicially affect the interest of the applicants. The applicants are not only interested parties but are also parties who are aggrieved by the decision against which leave is being sought to appeal.

​To say that the order of the lower Court and its outcome made in the absence of the applicants does not prejudicially affect the interest of the applicants who participated in and contested the election which the 9th Respondent had declared inconclusive but the lower Court ordered the 9th Respondent to proceed to collate and declare the results and return winners, is far from the truth.

The argument that the 1st – 8th Respondents did not ask to be declared or returned as elected and that the 9th Respondent was only directed to carry out its statutory function which does not require the presence of the applicants is lame.

​The applicants ought to have been joined at the lower Court. Having not been so joined, the Applicants have been able to demonstrate that they have sufficient interest in the subject matter of Suit No. KDH/KAD/865/2021 before the lower Court. They have shown that they are parties aggrieved by the decision who have been wrongly denied the right of hearing in the matter. Their interests have been prejudicially affected. 

The law is that once an applicant is able to demonstrate to the satisfaction of the Court as the Applicants have done in this application that his interest has been affected in the matter as herein demonstrated, the Court would exercise its discretion in his favour to grant such an applicant leave to appeal as an interested party. 

Having not being joined at the lower Court, and having satisfactorily met the requirements of the law to justify the exercise of our discretion in their favour, we find merit in this application and same is granted in terms of prayers 1 – 3. Accordingly:
1. Leave is granted to the interested parties/applicants to appeal against the judgment of the High Court of Justice, Kaduna Division, Kaduna State presided over by Hon. Justice E. Y. B Lolo in Suit No: KDH/KAD/865/2021 between PEOPLE DEMOCRATIC PARTY (PDP) & 7 ORS V. KADUNA STATE INDEPENDENT ELECTORAL COMMISSION & 6 ORS delivered on 27/9/2021.
2. Leave is granted to the interested parties/Applicants to rely on and make use of the Proposed Notice of Appeal attached hereto as Exhibit F which contains the grievance of the Interested parties.
3. Leave is also granted to the Interested Parties/Applicants to make use of and rely on the Record of Appeal in SUIT NO. KDH/KAD/865/2021 PEOPLE DEMOCRATIC PARTY (PDP) & 7 ORS V. KADUNA STATE INDEPENDENT ELECTORAL COMMISSION & 6 ORS delivered on 27/9/2021 for the purpose of prosecuting the appeal before this Court.
4. The Notice of Appeal in terms of the proposed Notice of Appeal, Exhibit F attached to this application, shall be filed at the Registry of the lower Court within 14 days of this order.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother Amina Audi Wambai, JCA.

My learned brother has painstakingly considered the submissions of counsel on the propriety or otherwise of granting the prayer of the interested parties/Applicants for leave to appeal the decision of the lower Court delivered on 27-09-2021 in Suit No. KDH/KAD/865/2021.

First, I agree with my learned brother in the lead ruling that the application by the interested parties do not constitute abuse of process and second that the applicants have shown sufficient interest to be entitled to the grant of leave to appeal the decision of the lower Court of 27-9-2021 as interested parties.

In the circumstance, I also agree that the application of the interested parties applicants is meritorious and duly granted.
I abide with the consequential orders.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

D.C. Enwulum, SAN, with him, O.I. Abeeb, Esq, Sule Shu’aibu, Esq, Joel Adamu, Esq, and B. A. Tanko, Esq,. For Appellant(s)

Dr. A.A. Adewole, Esq. For Respondent(s)