APC & ORS v. SULAIMAN & ORS
(2022)LCN/16238(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 17, 2022
CA/ABJ/CV/1034/2021
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. ALL PROGRESSIVES CONGRESS 2. H.E.MAI MALA BUNI 3. SENATOR JOHN AKPANUDOEDEHE (The 2nd-3rd Appellants For Themselves & On Behalf Of The APC Caretaker/Extraordinary Convention Planning Committee) APPELANT(S)
And
1. MUTTAKA BALA SULAIMAN & 17,907 ORS 17,909. HON. OLAYIDE ADEWALE AKINREMI 17,910. SENATOR ABBA ALI 17,911. DR. TONY MACFOY 17,912. BARR. AUWALU ABDULLAHI 17913. USMAN MUSA KAITA 17,914. ADEBAYO IYANIWURA 17,915. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
RATIO
THE PRINCIPLE OF INTERPRETATION OF STATUTES
In Olafisoye v. Federal Republic of Nigeria (2004) NWLR (Pt. 864) 580, Tobi, JSC (of blessed memory) held as follows:
“Where a Constitutional provision is clear and unambiguous, the Courts cannot read into the provision an implied term because by the clear and unambiguous provision, an implied term is impliedly forbidden to be part of the Constitution. After all, a Constitution is not a transient agreement, like contract where implied terms could be read into the wordings in the interest of the commercial transaction of the parties. Where a Constitutional provision is clear and unambiguous and the Courts read into their so-called implied terms, the Courts will be going outside their interpretative jurisdiction and will be branded as making the law in a bad way”.
It is on that note that the Supreme Court held in APC. v. Moses (supra) per Agim, JSC that, where a particular word or phrase has been defined in a statute, no other meaning can be given to the word or phrase outside its definition by the statute. With that at the back of my mind, I find it expedient to reproduce the meaning of “pre-election matter” as defined in Section 285(14) (a)-(c) of the Constitution. It is defined as follows:
285(14). For the purpose of this Section, “pre-election matter” means any suit by –
a. an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
b. an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
c. a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election”. PER TSAMMANI, J.C.A.
THE TYPES OF MATTERS THAT CONSTITUTE OR MEAN A PRE-ELECTION MATTER
Section 285(14) (a) to (c) by expressly listing the three types of matters that constitute or mean a pre-election matter clearly excluded the matters not mentioned therein. The law is settled by an unending line of judicial decisions that where a statute expressly lists the items to which it applies, it excludes those not listed therein. This interpretative rule is often expressed in the maxim, the express mention of certain things excludes those not mentioned.
So if Section 285(14) had intended the actions concerning the election and appointments of persons to political party offices membership of a political party, setting up committees or organs of a political party and its general internal affairs, constitute pre-election matters, it would have stated so. Since such actions are not listed in Section 285(14) as pre-election matters, they are not. The suit leading to this appeal is not a pre-election matter”.
What follows from the above interpretation given to Section 285(14) of the Constitution, by the Supreme Court, to my understanding is that, to determine whether a particular matter or claim is a pre-election matter within the context or ambit of Section 285(14) of the Constitution, the Court should first look at the parties, i.e whether the plaintiff is an aspirant, or a political party. Secondly, the claim must relate to any of the items listed or mentioned in Section 285(14) (a)—(c). From the questions posed for determination in the originating summons, the reliefs sought and the facts deposed to in the Affidavit in Support, the 1st—17,908th Respondent have not contended that any or all of them is/are aspirants in any election. Indeed, the facts leading to the institution of the suit in the Court below, reveal clearly that the suit is an outcome of the ward congresses of the Appellant (APC) conducted in Kano State. Congresses of political parties are to be distinguished from primary election. A primary election is the process whereby a political party members nominate or select candidates of that party to contest or run in a general election. Party Congresses are generally conducted to select the leadership of a political party. That is why it is considered as an internal affair of the political party. See Black’s Law Dictionary (7th ed.) at p. 536 and the case of Honourable Abdullahi Shuaibu v. Husseini Aladein & Ors. (2020) LPELR-55324 (CA). PER TSAMMANI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Now, the issue here is to determine whether the lower Court, to wit: the Federal Capital Territory High Court had the territorial jurisdiction to hear and determine on the Plaintiffs/1st-17,908th Respondents’ claims. Jurisdiction is the power or authority a Court has to take cognizance of matters presented to it in a formal way for determination. Jurisdiction is therefore a threshold issue being the livewire that determines the competence of Court of law or tribunal to entertain a case presented to it for determination in a formal way. It is the blood that sustains and gives life to any action in a Court of law. See Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142 at 171; Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 and Adeleke v. Osha (2006) 16 NWLR (Pt. 1006) 608. Thus, in Oloba v. Akereja (1988) 7 S.C (Pt. 1) 1 at 14-15, the Supreme Court held that:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for a Court to embark on the hearing and determination of the suit, matter or claim. There is no justice in exercising jurisdiction where there is none, it is injustice to the law, to the Courts and the parties to do so”.
It should be noted that, what primarily confers jurisdiction on a Court of law is the statute that creates the Court. In other words, the foundation of the jurisdiction of a Court is either the Constitution or the Statute that creates it. See A. G; Rivers State v. A.G; Akwa Ibom State (2011) LPELR-633 (SC) and Eghazerba v. Eribo (2010) 9 NWLR (Pt. 119) 411. That being so, the parties are not at liberty to confer jurisdiction on the Court; therefore, if the Court lacks jurisdiction, it must not willy-nilly insist that it has jurisdiction. PER TSAMMANI, J.C.A.
THE POSITION OF LAW ON SUBSTANTIVE AND TERRITORIAL JURISDICTION
The issue of jurisdiction raised here, pertains to the territorial jurisdiction of the Federal Capital Territory High Court. It should be noted that, jurisdiction of Courts consist of territorial and substantive jurisdiction. Substantive jurisdiction refers to the subject matters over which a Court may adjudicate, and is almost always expressly stipulated by the Constitution or other enabling statutes. Territorial Jurisdiction on the other hand, refers to the geographical area within which the authority of the Court may be exercised, and outside which the Court will have no power or authority to act. Thus, in Tukur v. Gov’t of Gongola State (1989) 4 NWLR (Pt. 117) 517, the Supreme Court, per Oputa, JSC (of blessed memory) had this to say:
“…the first is the legal capacity, the power and authority to hear and determine a judicial proceedings – in the sense that it has the right and power to adjudicate concerning the particular subject matter in controversy. The second is the geographical area in which and over which the legal jurisdiction of the Court can be exercised. This area of authority is called geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction”.
It therefore means that, the Court must have both substantive and territorial jurisdiction before it can validly hear and determine a matter. This is so because, the subject matter of the claim may be within the substantive jurisdiction of the Court but relate to facts or events that occurred outside the territorial limits or jurisdiction of the Court. In such a circumstance, the Court will be deprived of jurisdiction to hear and determine the matter. See Dalhatu v. Turaki (supra); PDP v. Raheem & Ors. (2019) LPELR-48747 (CA); Okafor & Anor. v. Hashim & Ors. (2001) 1 NWLR (Pt. 693) 183 at 190; Mallam Abduljelil Momoh Yahaya v. All Progressives Congress & Ors. (2019) LPELR-47845 (CA) and Ukachukwu v. Chidolue & Ors. (2019) LPELR-47775 (CA). In the case of Mailantarki v. Tongo (2017) LPELR-42467 (SC), the Supreme Court held that:
“It is settled law that, a Court in one State does not have jurisdiction to hear and determine a matter within the exclusive jurisdiction of another State… There can not be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory. In the instant case, the cause of action, which is the primary election of the 2nd Respondent, took place in Gombe State. There is no jurisdiction for the institution of the case before the High Court of the FCT in Abuja. The filing of the suit before that Court is a clear example of “forum shopping” in the hope of securing a favourable outcome. This practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner who filed the suit”. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory (FCT) High Court of Justice, delivered by Hamza Mu’azu, J on the 30th day of November, 2021 in Suit No: FCT/HC/CV/2030/2021.
By an originating Summons which was filed on the 18th day of August, 2021, the 1st-17,908th Respondents as Plaintiffs posed the following questions for determination.
1. Whether by the combined provisions of Articles 11 A (i -xiii) and 13(12) of the All Progressives Congress (APC) Constitution; the All Progressives Congress (APC) Guidelines for Wards Congresses 2021 and Sections 85 (1) & (2); 87 (7, 8 & 9) of the Electoral Act 2010 (as amended), the defendants’ act, decision and/or action or proposal not to recognize the Plaintiffs as the duly, validly, properly authentically and democratically elected persons as the:
a. 27 elected ward executive committee members for each of the 484 Wards in Kano State;
b. 5 – elected Ward delegates for or to each of the 44 Local Government Areas; and
c. 5 – elected Ward delegates per Ward areas for or to the State Party Congress; of the 1st Defendant party for all the wards and Local Government areas in Kano State in the Ward congress election conducted by the 1st–9th Defendants and supervised by the 10th Defendant on the 31st July, 2021 is valid, proper and in compliance with the governing laws?
2. Whether by the combined provisions of Articles 11 A (i -xiii) and 13 (12) of the All Progressives Congress (APC) Constitution; the All Progressives Congress (APC) Guidelines for Wards Congresses 2021 and Sections 85 (1) & (2); 87 (7, 8 & 9) of the Electoral Act 2010 (as amended), the summary of the results sheets showing the Plaintiffs as the:
a. 27 elected ward executive committee members for each of the 484 Wards in Kano State;
b. 5- elected Ward delegates for or to each of the 44 Local Government Areas; and
c. 5- elected Ward delegates per ward for or to the State Party Congress;
are not the valid, authentic and democratic results of the various ward congress Elections in Kano State conducted on the 31st July, 2021 (covered by the report submitted to the 1st–5th Defendants on the 6th August, 2021) to be adopted, recognized and relied upon by the Defendants in FCT Abuja?
3. Whether by the combined provisions of Articles 11 A (i – xiii) and 13 (12) of the APC Constitution, the All Progressives Congress (APC) Constitution; the All Progressives Congress (APC) Guidelines for Wards Congresses 2021 and Sections 85 (1) & 87 (7, 8 & 9) of the Electoral Act, 2010 (as amended) any other results or purported results or any other/directives emanating from other than the duly and validly constituted Ward Congress Committee of the 1st Defendant can be given credence and acted upon by the Defendants?
That if the questions are answered in their favour, the Court should grant them the following reliefs:
1. DECLARATION THAT the Defendants’ decision and/or action or proposal not to recognize the Plaintiffs as the duly, validly, properly, authentically and democratically elected and ought to be recognized by the Defendants as the:
a. 27 elected ward executive committee members for each of the 484 Wards in Kano State;
b. 5- elected Ward delegates for or to each of the 44 Local Government Areas; and
c. 5- elected Ward delegates per ward for or to the State Party Congress;
of the 1st Defendant party for all the wards and local governments areas in Kano State at the Ward congress election conducted by the 1st-9th Defendants and supervised by the 10th Defendant on the 31st July, 2021 is not valid, proper and not in line with the governing laws.
2. DECLARATION THAT the 1st Defendant’s summary result sheets showing the Plaintiffs as:
a. 27 elected ward executive committee members for each of the 484 Wards in Kano State;
b. 5- elected Ward delegates for or to each of the 44 Local Government Areas; and
c. 5- elected Ward delegates per Ward for or to the State Party Congress of the 1st Defendant;
are the valid, proper, authentic and democratic results of the various ward congress elections in Kano State to be adopted, recognized and relied upon by the Defendant headquarters in Abuja.
3. DIRECTING the Defendants to adopt, recognize and rely on the summary result sheet for Ward Congress, elected delegates and State Delegates submitted at the 1st Defendant’s Office in FCT, Abuja consisting of the Plaintiffs’ names as the only valid and authentic delegates qualified to participate in the forthcoming primary elections of the 1st Defendant;
4. NULLIFYING, voiding and/or setting aside any other list of any other report/directives given by the Defendants on 9th August, 2021 or any other date, other than the valid, proper and authentic summary result sheets for Ward Congress, Elected Delegates and State Delegates of Kano State consisting of the Plaintiffs’ names as the duly, validly and democratically elected Ward Executive Committees, Ward Delegates to the Local Government Areas and Ward delegates to the State Party Congress of the 1st Defendant of Kano State;
5. AN ORDER OR PERPETUAL INJUNCTION restraining the Defendants from receiving, accepting and/or acting or purporting to act on, rely on or approving any other list or purported list of Ward Executives committee members emanating from any other Committee other than the duly constituted Ward Congress Committee (WCC) of the 1st Defendants showing or consisting of the names of the Plaintiffs as the:
a. 27 elected ward executive committee members for each of the 484 Wards in Kano State;
b. 5- elected Ward delegates for or to each of the 44 Local Government Areas; and
c. 5- elected Ward delegates per Ward for or to the State Party Congress of the 1st Defendant.
The Originating Summons was supported by an Affidavit and annexed to the Affidavit were several documents. The Appellants herein, who were the 1st, 2nd and 3rd Defendants at the trial, filed a Joint Counter-Affidavit and a Written Address. The 17,909th-17,910th Respondents equally filed a Joint Counter-Affidavit and a Written Address. Preliminary Objections were filed by the Appellants and the other sets of Respondents. The learned trial Judge considered the Preliminary Objection and the Originating Summons together. The learned trial Judge in his judgment delivered on 30/11/2021, dismissed the Preliminary Objections and entered judgment for the 1st-17,908th Respondents. Displeased by the judgment, the Appellants have filed this appeal.
The Notice of Appeal was filed on 10/12/2021 and it consists of seven (7) grounds of appeal. In compliance with the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments was filed on 31/12/2021. Therein, four (4) issues were raised for determination as follows:
1. Whether the lower Court was wrong when it found that the 1st-17,909th Respondents’ suit was a pre-election matter within the ambit of the provisions of Section 285(14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 87(9) of the Electoral Act, 2010 (as amended) [Ground 1].
2. Whether the lower Court was wrong when it heard and decided the 1st-17,908th Respondents’ suit bordering on Ward Congress dispute of the 1st Appellant (All Progressives Congress), which is non-justiciable. [Ground 2].
3. Whether the lower Court was wrong in hearing and delivering the 1st -17,908th Respondents’ suit when it had no requisite territorial jurisdiction to so do. [Ground 3].
4. Whether the lower Court was wrong when it improperly evaluated the evidence adduced by the Appellants before it and granted the 1st-17,908th Respondents’ claim on the basis that they proved their case on a balance probabilities. [Grounds 4, 5, 6 and 7].
The 1st-17,908th Respondents filed a Brief of Arguments on 18/1/2022 wherein; two (2) issues were distilled for determination as follows:
1. Whether the objections were not rightly dismissed? [Grounds 1, 2 and 3].
2. Whether the findings and orders of the trial Court in this suit were not in accordance with the facts and evidence before the Court?. [Grounds 4, 5, 6 and 7].
The 17,909th-17,915th Respondents did not file any Brief of Arguments. The Appellants therefore filed an Appellants’ Reply Brief to the 1st–17,908th Respondents’ Brief of Arguments. It was filed on 20/1/2022. I wish to point out at this stage, that the 1st–17,908th Respondents filed a Notice of Preliminary Objection to the hearing of this Appeal.
The Notice of Preliminary Objection which was filed on 18/1/2022 prayed this Court to strike out the appeal on the following grounds.
i. The 2nd & 3rd Appellants appealed as “The 2nd-3rd Appellants for themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee”. Contrary to the Original Suit, two Appellants are now listed as representatives instead of the four Defendants and the Notice of Appeal now shows two persons as representatives instead of four persons as representatives of the Committee.
ii. The two Appellants cannot appeal separately or file an appeal against the 17,910th & 17,911th Respondents’ as they (the four) are jointly representatives of and/or represented only one body i.e. APC Caretaker/Extraordinary Planning Committee.
iii. The same body (i.e. the APC Caretaker/Extraordinary Planning Committee) represented by the four persons (the two Appellants and 17,910th & 19,911th Respondents) cannot be Appellants’ and Respondents in the same appeal.
iv. This appeal is an abuse of Court process, i.e. the Appellants have split the appeal by filing this appeal No.CA/ABJ/CV/1034/2021 against another appeal No.CA/ABJ/CV/1020/2021 both deriving from the same parties, same subject judgment, and raising same issues.
v. The Status of 17,910th & 17,911th Respondents i.e being jointly sued (with the Appellants) as (The 2nd-5th Defendants for themselves & on behalf of the APC Caretaker/Extraordinary Convention Planning Committee)” has been removed on appeal, thereby altering the capacity of parties as it appeared at the trial Court. It is not reflected that the 17,910th and 17,911th Respondents are representatives of any body or committee.
vi. The status/capacity of 17,912th, 17,913th, 17,914th, and 17,915th Respondents, i.e. “being sued as 6th–9th Defendants for themselves and members of the APC Ward Congress Committee for Kano State” at the trial Court has been removed totally on appeal, thereby altering the status/capacity of parties as it appeared at the trial Court. It is not reflected that the 17,912th to 17,915th are representatives of anybody or committee.
vii. The appeal is incompetent and this Hon. Court lacks jurisdiction to entertain the appeal.
The Notice of Preliminary Objection has in support, an Affidavit of 9 paragraphs deposed to by the 1st Respondent. Annexed to the Affidavit are Exhibits 1A, 1B, 2a, 2b, 3(a) and 3(b) respectively. Arguments in respect of the Preliminary Objection are contained in pages 3-9 of the Respondents’ Brief of Arguments. The Appellants filed a Counter-Affidavit in response to the Notice of Preliminary Objection. The Arguments in opposition to the Notice of Preliminary Objection have been made at pages 2—6 of the Appellants’ Reply to the Notice of Preliminary Brief of Arguments.
Now, in arguing the Preliminary Objection Nureini Jimoh, SAN of learned counsel for the 1st—17,908th Respondents cited Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 to contend first of all, that a Notice of Appeal, Application for leave to appeal, Briefs and all other documents prepared in pursuance of the appellate jurisdiction of the Court shall reflect the same title as which obtained at the trial Court. That, the parties cannot be different or replaced, even by leave of Court first sought and obtained. The cases of Apeh v. PDP (2016) All FWLR (Pt. 824) 1 at 16 and Nteile v. Irawaji (2021) 6 NWR (Pt. 1803) 411 at 448 Paras. B-H, were cited in support, and to further contend that, it is based on the legal pedestal that an appeal is a continuation of the case from the trial Court. That, H.E. Mai Mala Buni, Senator John Akpanudoedehe, Hon. Olayide Adewale Akinremi and Senator Abba Ali were jointly sued as “the 2nd-5th Defendants for themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee” but in the instant appeal, two out of the four persons initiated this appeal (2nd & 3rd Appellants) and described themselves as “the 2nd-3rd Appellants for themselves and on behalf of the APC Caretaker/Extraordinary Convention Planning Committee)”. In other words, that two persons out of the four described themselves as representing the whole, while the other two from the group are now labeled as the 17,909th-17,910th Respondents.
Learned senior counsel for the 1st-17,908th Respondents, went on to argue that, the status and the parties listed go together and therefore, the body sued together remains one and bound in their representative status. The cases of PDP & Ors. v. Dayo & Ors. (2013) LPELR-20794 (CA) and Re: Apeh & Ors. (2016) 1-2 SC (Pt. 10) 60 were cited in support. It was accordingly submitted that, the consequence of a representative action is that, one or two of the group cannot appeal against the other representatives in the appeal. That, in a representative action, the judgment is binding on the group and therefore, one or two of the group cannot appeal and have the other representative as a Respondent in the appeal. That, if there should be an appeal, they must jointly appeal, in so far as they remain representatives of the body.
The cases of Sapo & Ors. v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374 and Dike-Ogu & Ors. v. Amadi & Ors. (2008) 12 NWLR (Pt. 1102) 650 were cited in support.
In response Mamman Lawan, SAN for the Appellants contended that, the issue raised here by the 1st-17,908th Respondents is highly misconceived and that the cases in support were cited out of context. It was therefore submitted that, the Appellants were sued at the lower Court in two distinct capacities, that is, for “themselves” and in a “representative capacity”. That by suing the Appellants “for themselves”, the 1st-17,908th Respondents had vested them with the fundamental right to be heard separately as enshrined under the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Furthermore, that the Constitution has vested them with distinct rights of appeal.
Learned senior counsel also cited the case of Anthony v. Elias & Anor (2017) LPELR-45027 (CA) to further submit that, the Appellants were sued in their personal and representative capacities. That, the significance of suing the Appellants in dual capacity is that, even if the claim fails against them in one capacity, it can succeed in the other capacity. That by implication, a party who is aggrieved by a judgment against him in both his personal and representative capacities, has three options. That he may appeal in his personal capacity, or in his representative capacity or both, and that in the instant case, the Appellants appealed in both their personal and representative capacities. That in the circumstances, even if it is held that the Appellants cannot appeal in their representative capacities, their personal capacities will sustain the appeal.
Learned counsel for the Appellants went on to submit that, it is settled law that once the 1st-17,908th Respondents as Plaintiffs in the lower Court chose to join the Appellants as defendants in the suit out of several other executive members of the APC Caretaker/Extraordinary Convention Planning Committee, and judgment was entered against them in their personal and representative capacities, the Appellants have by operation of law, the right of appeal as “persons aggrieved” by virtue of Section 243(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The cases of Odedo v. PDP (2015) LPELR-24738 (SC) and Kogi State House of Assembly v. PDP (2015) LPELR-24738 (SC) were cited in support. It is thus submitted that, the Appellants as persons having interest and aggrieved by the judgment of the Court below, have the constitutional right to appeal either separately or jointly against the said judgment.
Now, the right of appeal is regulated by the Constitution. In Nigeria, such rights of appeal are regulated or donated by Sections 241, 242 and 243 of the 1999 Constitution (supra), in case of appeals from either the Federal High Court, High Court of the Federal Capital Territory (FCT) or High Court of a State. Thus, any person who was a party in the trial Court can appeal to the Court of Appeal either as of right, or with leave, where such person is aggrieved with the decision of the trial Court. What bothers us in this issue, is whether a person who was sued “For himself” and “as representative” of a class or group of persons can appeal same judgment without the other persons in that group. In other words, whether same person can appeal either in his personal capacity or as representative of that ground and then make the other persons sued together with him as defendants in the Writ as Respondents. Contrary to the contention to the argument of learned senior counsel for the 1st—17,908th Respondents, Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 is not relevant to the resolution of the issue.
I wish to point out the trite law that, a representative action is a suit in which an individual or group of persons represent the common interests of a larger group to either sue or defend the interest of the persons represented in a suit. In that respect, persons not named on the writ as parties but who are represented are also parties to the suit and bound by the outcome of the litigation. A named representative in a representative action, is domino litis and therefore has the power to discontinue, compromise, submit to the dismissal of the case or appeal at his pleasure. That being so, even when other persons named on the writ did not join in the appeal, any of the named parties who feels aggrieved by the decision of the trial Court may exercise his right of appeal. Indeed, even an individual who is not named in the writ but is represented in the suit, has the right to appeal against the decision affecting him. See Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 at 167; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. Therefore, the fact that the Appellant’s co-defendants failed to join in this appeal, for whatever reason, cannot take away the constitutional rights of the Appellants who chose to appeal merely by the rules of representative action.
In the instant case, the 1st-17,908th Respondents have prayed this Court to strike out this appeal on the ground that both the Appellants and the 17,909th-17,910th Respondents were defendants at the trial Court. It would appear that the 17,909th and 17,910th Respondents decided not to appeal along with the Appellants. I am of the view that, even if the 17,909th and 17,910th Respondents have been erroneously made Respondents in this appeal, that cannot affect the validity of this appeal as to lead to the striking of the Notice of Appeal. This is because, the question of non-joinder or misjoinder of parties does not affect the jurisdiction of a Court as to lead to the striking out of this appeal. The worst that can be done where a question of misjoinder arises, as in the instant case, is to strike out the name of the party wrongly joined, so that the Court may deal with the matter in controversy as regards the rights and interest of the parties properly before the Court. See Cross Rivers State Newspapers Corporation v. Oni & Ors. (1995) LPELR—898 (SC); Sapo & Anr. v. Sunmonu (2010) LPELR-3015 (SC) and Bello v. INEC & Ors. (2010) LPELR-767 (SC).
Following from the above, learned senior counsel for the 1st-17,908th Respondents went on to submit that, this appeal amounts to proliferation of appeals by persons who have been sued for and on behalf of a body when the parties jointly sued have split themselves into Appellants and Respondents at the same time. That by so doing, it amounts to abuse of Court process. The cases of Ladoja v. Ajimobi (2016) 10 NWLR (Pt.1519) 87 and Adesemowo v. Kassim (2021) 18 NWLR (Pt. 1807) 115 were then cited to submit that, the APC Caretaker Committee is the Appellant and Respondent in this appeal and therefore abused the process of this Court by filing two divergent appeals, i.e. this appeal and Appeal No. CA/ABJ/CV/1020/2021.
In other words, the 2nd and 3rd Appellants and the 17,909th to 17,910th Respondents having been jointly sued at the trial Court “For themselves and on behalf of APC Caretaker/Extraordinary Convention Planning Committee”, cannot now change that capacity on appeal. That to do that, will amount to multiplicity of action and thus, abuse of Court process. The case of Ladoja v. Ajimobi (supra) was cited in support.
In response, learned senior counsel for the Appellants contended that, the 1st–17,908th Respondents’ argument that Appeal No. CA/ABJ/CV/1020/ 2021 constitutes duplicity of appeals is highly misconceived. That each aggrieved party to a judgment has unfettered constitutional right to appeal, either separately or jointly, and that a Respondent who intends that the appeal be heard together can apply for consolidation of the said appeals. That in any case, the Appellants and the 17,909th & 17,910th Respondents filed separate Counter-Affidavits and Preliminary Objections at the trial Court; and were represented by different counsel. It was then submitted that, the 1st-17,908th Respondents did not raise any objection to such separate appearances and papers filed by them. That, it is now too late for them to insist on appeal that the Appellants and the set of 17,909th-17,910th Respondents must appeal together.
Learned counsel for the Appellants then submitted that, the case of Ladoja v. Ajimobi (supra) is distinguishable from the facts of this case. That in the Ladoja case (supra), Senator Rashidi Ladoja filed a Petition together with the Accord Party as Joint Petitioners against Senator Abiola Ajimobi before the Governorship Election Petition Tribunal of Oyo State. That being dissatisfied with the decision of the Tribunal, Ladoja and Accord Party filed separate appeals. However, Ladoja also filed a Cross-Appeal in the appeal filed by the Accord Party. The Cross-Appeal was thus adjudged to be an abuse of Court process. That, in the present appeal, the Appellants did not file any Cross-Appeal in Appeal No. CA/ABJ/CV/1020/2021.
Now, the argument of the 1st-17,908th Respondents here is that the 2nd and 3rd Appellants herein who were sued in a representative capacity with the 17,909th & 17,910th Respondents cannot split their appeals and make each of them a Respondents. It should be noted that, the 17,909th and 17,910th Respondents who were jointly sued with the 2nd and 3rd Appellants herein, had filed Appeal No: CA/ABJ/CV/1030/21, “For themselves & on behalf of the APC Caretaker/Extraordinary Convention Planning Committee”. The 2nd & 3rd Appellants in this appeal have also appealed “for themselves and on behalf the APC Caretaker/Extraordinary Convention Planning Committee”. It is obvious that the 2nd & 3rd Appellants in this appeal who were sued jointly “for themselves and as representatives of the APC Caretaker/Extraordinary Convention Planning Committee” together with the 17,909th and 17,910th Respondents (Appellants in Appeal No. CA/ABJ/CV/1020/2021), have decided to file separate appeals. The 1st-17,908th Respondents have argued that, by filing separate appeals, the Appellants herein, were in abuse of the process of Court by filing multiplicity of appeals.
There is no argument that the Appellants herein have the constitutional right of appeal. However, I am of the view that, the Appellants herein can exercise that right of appeal against the decision of the Court below arising from the suit in which they were jointly sued as representatives of the APC Caretaker/Extraordinary Convention Planning Committee. After all, even though they filed separate Counter-Affidavits and preliminary Objections, a single Judgment was delivered by the trial Court. That is particularly so, when counsel raised the same issues at the trial and the trial Court considered same together including the documentary evidence tendered and gave one Judgment. I am of the view that, the case of Ladoja v. Ajimobi (supra) cited by learned counsel for the 1st – 17,908th Respondents is apposite to the facts of this case. Therein, the Supreme Court held that the right of appeal is constitutional but that such right must be exercised within bounds. That all rights including constitutional rights are not at large but are to be exercised subject to limitation. On that principle, Okoro, JSC in his contributory judgment at page 175 -176 Paras. H – B in Ladoja v. Ajimobi (supra) held as follows:
“In the instant appeal, appellant and respondent in SC.12/2016 were joint petitioners at the trial Tribunal and obtained one judgment. In SC.12A/2016, the appellant (Accord) and the 4th respondent (Ladoja) were also together in the petition giving birth to this appeal. Needless to say that an appeal is a continuation of the hearing of the case at the Court below including the trial Court. In the process of hearing this matter, parties have swapped positions as petitioners, appellants and respondents, all pursuing the same issues. As it turns out, there is left for us multiplicity of appeals arising from the same facts and judgment. There can be no abuse of Court process more than this. The Court possesses inherent powers to stop any abuse of its process whenever it arises”.
From the above cited authority, it is apparent that the Appellants and the 17,909th-17,910th Respondents who were jointly sued as defendants in a representative capacity in the Court below, cannot split themselves and file separate Notices of Appeal. Having done that, the appeal filed by the 2nd and 3rd Appellants herein Appeal No. CA/ABJ/CV/1034/2021 is without doubt, an abuse of process.
However, I am of the view that the principle of misjoinder will also apply in the circumstances of this case, so that the names of the 2nd and 3rd Appellants be struck out of the appeal. This is because, the settled law is that, no action shall be allowed to be defeated by reason of misjoinder or non-joinder of parties. A misjoinder such as in the present appeal is not fatal to the proceedings. See Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342; Cross River State Newspapers Corporation v. Oni (1995) 1 NWLR (Pt. 371) 270 and Olusi & Anor v. Obanobi & Ors. (2014) LPELR-22089 (CA): In the circumstances, the proper order to make is that of striking out of the names of the 2nd and 3rd Appellants.
The logical corollary of the above findings is that the appeal of the 1st Appellant (All Progressives Congress) is still valid and subsisting. The said 1st Appellant was not sued jointly with the 1st, 2nd and 3rd Appellants in a representative capacity. In that respect the appeal filed by it is not proliferated in view of Appeal No. CA/ABJ/CV/1020/2021. This appeal shall be heard with the All Progressives Congress (1st Appellant) as the sole Appellant in this appeal. On that note, it is my view that, the Preliminary Objection succeeds partially having found that the appeal filed by the 2nd and 3rd Appellants herein, is an abuse of the judicial process.
However, this objection with regards to the 1st Appellant fails and is discountenanced. This appeal shall be heard with the 1st Appellant (APC) as the sole Appellant.
Now, on issues one and two, learned senior counsel for the Appellant contended that, the learned trial Judge erred when he found that the 1st-17,908th Respondents’ suit was a pre-election matter within the ambit of the provisions of Section 285(14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It was them submitted that, Ward Congresses or issues flowing therefore do not constitute pre-election matters within the ambit of the provisions of Section 285 (14) (a)-(c) of the Constitution (supra) as emphatically held in APC v. Moses (2021) All NWLR (Pt.12) 495 at 542 -543 Paras. B-C and 546 Paras. A-D. That, it is therefore clear that by Sections 285(14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 and 87(a) of the Electoral Act, 2010 (as amended), that the definition of a pre-election cases excludes party ward congresses. That as held per Jauro, JSC in APC v. Moses (supra) at 543 Paras. D-F, by Section 285 (14) (a)-(c) of the Constitution, the definition of pre-election matter cannot be expanded to cover disputes arising from ward congresses of political parties.
Learned senior counsel went on to submit that, the case of APC v. Umar (2019) 8 NWLR (PT. 1675) 564 relied on by the trial Court, was cited out of context as the latest decision on the point is that of APC v. Moses (supra). That it is so because, since it is later in time it remains the prevailing decision on the point. We were accordingly urged to hold that, the 1st-17,908th Respondents’ suit before the Court is not a pre-election dispute within the ambit of Sections 285 (14) (a)-(c) and 87(9) of the Electoral Act, 2010 (as amended). We were accordingly urged to resolve this issue in favour of the Appellant.
On issue two, learned senior counsel for the Appellant contended that the learned trial Judge erred when he determined the 1st-17,908th Respondents’ suit which border on ward congress of the All Progressives Congress (Appellant) which is non-justiciable. That the cases of APC v. Moses (supra) and Eyitayo Jegede v. INEC & 3 Ors. (supra), has settled the point to the effect that, all political party leadership disputes arising from party congresses are intra-party disputes and therefore non-justiciable.
Learned senior counsel for the Appellant went on to submit that, the learned trial Judge erred in law, when he relied on Section 6(6) (b) and 36 (1) & 255 of the 1999 Constitution to confer jurisdiction upon himself rather than relying on the specific provisions containing jurisdiction on it. That those provisions do not expressly or impliedly state that a ward congress dispute is not an intra-party dispute or that it is a pre-election matter. It was then submitted that, pre-election matters are sui generis and the provisions thereon, are specifically restricted to Sections 285 (14) (a)-(c) of the 1999 Constitution and 87(9) of the Electoral Act (supra). That, it is settled law that where there is a general provision on a matter in a statute and a specific provision on the same issue, the specific provision will prevail. On that basis, it was submitted that, the provisions of Sections 285 (14) (a)-(c) of the Constitution and 87 (9) of the Electoral Act will prevail over the general provisions of Section 6(6) (b), 36(1) and 255 of the Constitution.
Learned senior counsel for the Appellant went on to submit that, no Court of law can adjudicate on the issue of the leadership of a political party. That, a political party is a voluntary association just like a club and therefore, no Court of law has jurisdiction to adjudicate on how a political party conducts its affairs and its leadership issue is purely an internal affair of the political party even if the party is in breach of its Constitution or Guidelines. The cases of Agi v. Peoples Democratic Party (2017) 17 NWLR (Pt. 1648) 548; All Progressives Congress v. Kirfi (2018) 6 NWLR (Pt. 1616) 479 and Ugwuegede v. Asadu (2018) 10 NWLR (Pt. 1628) 460 were cited in support. The cases of Utuama v. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party v. Ogundipe (2018) LPELR-43887; Terver Kakih v. P.D.P. & Ors. (2014) 15 NWLR (Pt. 1430) 374 at 413; P.D.P. V. Timipre Sylva (2012) All NWLR (Pt. 637) 606 at 651 and Onuoha v. Okafor (1983) 14 NSCC 494 were then cited to submit that, a dispute from leadership tussle or election of executive members of a political party do not come within issues that a Court of law can adjudicate upon under the provisions of Section 87(9) of the Electoral Act, 2010 (as amended). That, it is moreso, as the doctrine of ultra vires does not apply in respect of the application of the Constitution, Bye-laws and Guidelines of political parties.
Learned senior counsel then submitted that, the 1st-17,908th Respondents’ suit in the Court below, propped the decision-making process of the APC at the National level as regards its choice or preference on the WCC’s report and results in the 1st-17,908th Respondents’ Exhibit G and the Appellant’s Exhibits MND3-MND46 on the 1st-17,908th Respondents’ report and result in their Exhibits F and J series on the other hand. That the Supreme Court held in Adebayo v. P.D.P. (2013) 17 NWLR (Pt.1382) 1, that even if it pertains to the choice of results from a party primary, it is an intra-party dispute. We were urged to hold that, the 1st-17,908th Respondents’ suit is built on intra-party dispute and to resolve this issue in favour of the Appellants.
Responding on issue one (1), learned senior counsel for the 1st-17,908th Respondents contended that, in determining the issue of jurisdiction, the process to be considered is/or are the reliefs sought in the originating process. The cases of Sojitz Corp. V. Subaru Motors (Nig.) Ltd. (2017) LPELR-50747 (CA); Oni v. Cadbury (Nig.) Plc, (2016) LPELR-26061 (SC); Olofu v. Itodo (2010) LPELR-2585 (SC) and Elelu-Habeeb & Ors. v. A.G; Federation (2012) LPELR-15515 (SC) were then cited to submit that, it is the Plaintiff’s claim that determine the jurisdiction of the Court. However, that when there are facts in the defence to support the Plaintiff’s claim as to vest jurisdiction on the Court, the Plaintiff is allowed to take the benefit of it. The case of University Press Ltd. v. Martins (Nig.) Ltd. (2000) FWLR (Pt. 5) 722 was cited in support.
On that note, learned senior counsel for the 1st-17,908th Respondents contended that, where a political party conducts congresses or election preparatory to an election or its primaries, an aggrieved party who complains about the violation of any of the provisions of the Electoral Act or the Constitution or Guidelines of the party in the conduct of the primaries, the Court will not allow the political party to act arbitrarily. The cases of Uzodinma v. Izunaso (No.2) (2011) 17 NWR (Pt. 1275) 30; Ibrahim v. APC (No.1) (2019) 16 NWLR (Pt. 1699) 444 at 465; Gwede v. INEC (2014) 18 NWR (Pt. 1438) 56; Lau v. PDP (2017) LPELR-42800 (SC); PDP v. Sherrif (2017) LPELR-4236 (SC) and Marafa v. APC (2020) 6 NWLR (Pt. 1721) 383 were thus cited to submit that a political party must obey the law or its own Constitution and Guidelines.
Learned counsel for the 1st-17,908th Respondents went on to submit that in determining whether a matter comes under Section 285(14) of the Constitution, and therefore a pre-election matter, particularly where it is a party congress leading to an election, a guideline has been given by the Supreme Court in APC v. Umar (2019) 9 NWLR (Pt. 1675) 564 at 575-576. That in the circumstances, the argument of the Appellant that the subject matter of the dispute is not in respect of a primary election but a party congress flies in the face in view of the decision of the Supreme Court in APC v. Umar (supra) and Section 285 (14) (c) of the 1999 Constitution. That, a congress election precedes primary election and therefore it is an election of delegates to elect candidates of political parties at the primary election in readiness or anticipation of a forthcoming election. That, it is therefore a pre-election matter. We were therefore urged to take judicial notice that the INEC has already released the timetable for the 2023 general elections and has stipulated a schedule for political parties to follow in presenting their candidates to the commission.
It was then submitted by learned senior counsel for the 1st-17,908th Respondents that the 1999 Constitution makes provision for pre-election matters, and under it dealing with complaints of violation of the provisions of the Electoral Act and other applicable laws like APC Constitution and Guidelines. That those provisions have been judicially considered by Supreme Court in cases such as Kusamotu v. APC (2019) 7 NWLR (Pt. 1670) 51; APC v. Lere (supra) at 279; Modibbo v. Usman (2020) 3 NWLR (Pt. 1712) 470 and Gbileve v. Addingi (2014) 16 NWLR (Pt. 1712) 470.
Learned senior counsel for the 1st-17,908th Respondents cited the case of Gana v. SDP & Ors. (2019) 11 NWLR (Pt. 1679) 139 to submit that, the general principle that any issue within the domestic and internal affairs of a political party is not within the jurisdiction of the Courts hence not justiciable, is not without exceptions as contained in Section 87(9) of the Electoral Act, 2010 (as amended). That, so long as political parties adhere to the provisions of their Constitution in the choice of candidates for political office, the Courts will not interfere. That in the instant case, the claim and findings of the trial Court show that the action is about violation of the Appellant’s Constitution and Guidelines and therefore vests the trial Court with jurisdiction to adjudicate on same. The case of Umeh v. Ejike (2013) LPELR-3506 (CA) was cited in support. In other words, that the claim simply challenges the undemocratic attitude of APC (Appellant) and its officials in jettisoning the winner of the congress election and substituting same with some unknown persons.
Learned counsel for the 1st-17,908th Respondents went on to contend that, in the instant case, the APC (Appellant) and its National Principal officers conceded that names were submitted as the winners of the congress election but the party shove the report and results aside and substituted same with the Report of State Party Congress, without any result detached, because of the stakeholders’ interest in total violation of Section 87(9) of the Electoral Act; Article 11 of the APC Constitution and the entire Guidelines of the APC for the congress. That in the circumstances, the learned trial Judge rightly relied on the case of APC v. Umar (supra) to resolve the issue.
Learned senior counsel for the 1st-17,908th Respondents then submitted that, the Appellant made heavy weather about the cases of APC v. Moses (supra) and Jegede v. INEC (supra) to support his position. That a decision is only an authority for what it decides. That in relying on those cases, the Appellants failed to consider the Respondents’ claims before the trial Court. That the facts in APC v. Moses (supra) are distinguishable from that of APC v. Umar (Supra) because:
a. that in APC v. Moses, the Appellants had sought the intervention of the full Court of the Supreme Court to depart from its earlier decision in APC v. Umar (supra) but the Supreme Court declined.
b. the reliefs sought in APC V. Moses related to sale of nomination forms by the political party to members, and the Court found that such is not justiciable being an internal or domestic affair of the party.
c. that the Supreme Court reiterated that a decision is the only authority for what it decides; and therefore distinguished the peculiarity of the reliefs sought in APC v. Moses from that of APC v. Umar.
d. that there must be a general election in sight so as to find the activity of a political party to be a pre-election matter. That in APC v. Moses there was no election in sight unlike in APC v. Umar which there was an election in sight.
e. that Section 285(14) (c) of the Constitution is applicable in the instant case. That it involves complaints against INEC that the provisions of the Electoral Act; or the APC Guidelines or Constitution has not been complied with by INEC and the APC in respect of preparation for an election.
Learned counsel for the 1st-17,908th Respondents went on to submit that the case of Jegede v. INEC (supra) does not in anyway assist the Appellants’ case because:
a. it is a post-election case which came up from the Ondo State Governorship Election Tribunal.
b. the Appellants have expressly admitted to the infraction of the party’s Constitution.
c. the 17,909th and 17,910th Respondents have expressly admitted that the issue in question is the right of the Appellant (APC) to choose the results submitted to it.
d. the Appellant did not challenge the trial Court’s finding that the central issue has nothing to do with internal affairs but the undemocratic decision of the Appellant (APC) to substitute the winners with an unknown list made by party stakeholders has not been challenged.
We were accordingly urged to hold that the cases cited by the Appellants are inapposite, distinguishable and therefore not applicable to the facts of this appeal.
In reply on points of law, learned counsel for the Appellants insisted that, the arguments of the 1st-17,908th Respondents that their matter is on pre-election matter within the ambit of Section 285 (14) (a)-(c) of the 1999 Constitution is not supportable, in view of the decision of the Supreme Court in the cases of APC v. Moses (supra) and Eyitayo Jegede v. INEC & 3 Ors. (2021) LPELR- 55481 (SC). That it is not a pre-election matter, having emanated from Ward Congresses of the APC. That, gleaning from the Record of Appeal, it is obvious that the subject matter of the claim before the trial Court was a challenge to the manner of conduct of the Ward Congresses in Kano State, the outcome of same and the decision of the Appellant as well as the 17,909th and 17,910th Respondents, and therefore cannot be situated within the definition of pre-election under Section 285(14) (a)-(c) of the Constitution.
On reliance by the 1st-17,908th Respondents on the case of APC v. Umar (supra), learned counsel for the Appellant submitted that, an attempt was made to distinguish same with APC v. Moses (supra) in the case of APGA & Anor. v. Alhaji Rabiu Garba Aliyu & 2 Ors., unreported decision of this Court in Appeal No. CA/KN/146/2021 delivered on 10/8/2021, but it failed. That this Court held in line with APC v. Moses (supra) that question of leadership of a political party is not a pre-election matter. We were accordingly urged to follow the decision of this Court in APGA & Anor. v. Alhaji Rabiu Garba Aliyu & 2 Ors. (supra) and APC v. Moses (supra) and to hold that the suit subject of this appeal is not a pre-election matter.
On the issue of internal affairs of a political party, learned senior counsel for the Appellant submitted that, it is not all violations or infractions of the provisions of the Constitution and Guidelines of a political party that will qualify as a valid cause of action and vest a Court of Law with jurisdiction to determine same. That so long as the subject matter of the dispute pertains to the leadership of a political party, any violation or infraction of the Constitution or Guidelines of a political party will be an internal affair of the party and therefore not justiciable. The case of Alhaji Muktar Ibrahim Gagarawa & 2 Ors. v. Peoples Democratic Party & 6 Ors., unreported Appeal No. CA/KN/39/2021 delivered on the 14th day of January, 2022 was cited in support. We were accordingly urged to hold that, the subject matter of the 1st-17,908th Respondents’ suit which border on the outcome of the APC’s Ward Congress held in Kano State and the decision of APC leadership at the National level, is purely an internal affair of APC and therefore not justiciable. We were accordingly urged to resolve these issues in favour of the Appellant.
Now, what agitates the mind of this Court in this issue is, whether the suit subject of this appeal, pertains to a pre-election matter. In determining what a pre-election matter is, the learned trial Judge relied on the case of APC v. Umar (supra) to hold at page 6615 line 14-6616 line 10 of volume 7 of the record of appeal as follows:
“However, a community reading of Section 87(9) of the Electoral Act and Section 285(14) of the Constitution FRN, 1999 (amended) which was enunciated in the case of APC v. Umar (2019) 8 NWLR (pt. 1675) 564 at 575-576 paragraph G, will mean that any processes or exercises embarked upon by a political party such as Congresses, nomination exercises etc are all pre-election matters and exercise’s and therefore caught up by or is within the purview of Section 285 (14) of the Constitution (4th Alteration Act, 2017). That being said, it is clear that the suit being a complaint about a decision of the APC National Headquarters which purportedly offends its Constitution and guidelines takes the suit outside the internal affairs of the party.
I must agree with the Plaintiffs/Respondents that from the above, it is obvious that since the matter has to do with the violation of APC Constitution and Guidelines, the Court has jurisdiction to adjudicate on same.”
Now, in the case of APC v. Umar (supra), a decision which was delivered by the Supreme Court on the 8/3/2019, Sanusi, JSC held as follows:
“…the exercise involved in the congress covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party, or as processes to elect or prepare and qualify those elected at the congresses to ultimately vie for elective offices to represent the party in the legislature at either local government, state or federal level, such exercise therefore to my mind are pre-election exercises or matters to which the provisions of Section 285 (11) squarely applies”.
However, in the case of APC. V. Dele Moses (2021) 14 NWLR (Pt. 1796) 278, a decision, also of the Supreme Court delivered on the 5th day of March, 2021 the Supreme Court adverted to Section 285(14) (a)–(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to define a pre-election. Therein, the Supreme Court held emphatically that, in determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” in Section 285 (14) (a)-(c) of the Constitution. It is settled law that in the interpretation of the provisions of the Constitution, no Court is permitted to impute into the terms used in the Constitution words which are not contained therein. In other words, words external to the words used in the Constitution are not allowed in the construction of the Constitution. See Dapianlong & Ors. v. Dariye & Anor. (2007) 8 NWLR (Pt. 1036) 332; A.G. Federation & Ors. v. Abubakar & Ors. (2007) 10 NWLR (Pt. 1041) 1 and A.G; Lagos State v. AG; Federation & Ors. (2003) LPELR-620. thus, in Olafisoye v. Federal Republic of Nigeria (2004) NWLR (Pt. 864) 580, Tobi, JSC (of blessed memory) held as follows:
“Where a Constitutional provision is clear and unambiguous, the Courts cannot read into the provision an implied term because by the clear and unambiguous provision, an implied term is impliedly forbidden to be part of the Constitution. After all, a Constitution is not a transient agreement, like contract where implied terms could be read into the wordings in the interest of the commercial transaction of the parties. Where a Constitutional provision is clear and unambiguous and the Courts read into their so-called implied terms, the Courts will be going outside their interpretative jurisdiction and will be branded as making the law in a bad way”.
It is on that note that the Supreme Court held in APC. v. Moses (supra) per Agim, JSC that, where a particular word or phrase has been defined in a statute, no other meaning can be given to the word or phrase outside its definition by the statute. With that at the back of my mind, I find it expedient to reproduce the meaning of “pre-election matter” as defined in Section 285(14) (a)-(c) of the Constitution. It is defined as follows:
285(14). For the purpose of this Section, “pre-election matter” means any suit by –
a. an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
b. an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
c. a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election”.
Now, pronouncing on the definition of “pre-election matter” in APC. v. Dele Moses (supra), Augie, JSC who delivered the lead judgment stated, profoundly so, at pages 319-320 paras. E-B of the Report as follows:
“Section 285(14) (a)-(c) of the 1999 Constitution (as amended) which defines what a pre-election matter is, speaks of aspirants, who complain about the conduct of party primaries in respect of the “selection or nomination of candidates for an election”, aspirants, who challenge “actions, decisions or activities” of INEC, in respect of their participation in an election, timetable for an election, registration of voters and other activities in respect of preparation for an election!. As the appellant put it in its brief, this definition “does not admit of congresses that may or may not” ‘one day’ lead to an election”.
In Suit No. PH/4634/2019, med by the first set of Respondents, they did not claim to be aspirants complaining about the conduct of any primaries or challenging actions, decisions or activities of INEC. They challenged guidelines issued for the conduct of congresses, and they claimed declaratory reliefs inter alia that they are entitled to participate in the ward congresses “that is yet to be conducted”.
There has to be a point at which political parties will leave the Courts out of their domestic wrangles or internal leadership tussles. To widen the net and allow Courts to be seen as an integral part of the political struggle for power, is not in the interest of anyone.”
In his contributory judgment, my Lord, Jauro, JSC emphasized at pages 322-323 paras. H-A of APC v. Moses (supra) as follows:
“By virtue of the overriding effect of the Constitution, this Court does not have the vires to expand, as the Respondent’s counsel wants it to, the definition and scope of pre-election matter beyond Section 285(14) of the Constitution (supra). This can only be done if the said section is amended but until then, any judicial interpretation of the term pre-election matter ought to be considered within the parameters of Section 285(14) of the Constitution (supra)”.
In the case of Aguma v. APC. (2021) 14 NWLR (Pt. 1776) 351 at 406 Paras. A-G, Agim, JSC in his contributory judgment put the issue in clearer perspective as follows:
“In view of the clear provisions of Section 285(14) of the 1999 Constitution the suit at the trial Court that led to this appeal is not a pre-election matter because it was brought by a member of a political party claiming that the political party acted ultra vires its Constitution by setting up a Caretaker State Executive Committee to function as the Party’s Rivers State Executive Committee, which Caretaker Committee including himself. The claimant is not an aspirant in a Primary Election of the Party. The action is not complaining that the selection or nomination of the party’s candidate for a general election did not comply with the Electoral Act or its Electoral Guidelines. The action is not challenging the action of INEC in respect of the selection or nomination of the party’s candidate for a general election. The action is not brought by a political party challenging the action of INEC disqualifying its candidate from participating in a general election or that the decision or action of INEC in respect of nomination of its candidate for an election, timetable for an election, registration of voters and other activities of INEC in respect of an impending election is contrary to the Electoral Act or other laws.
Section 285(14) (a) to (c) by expressly listing the three types of matters that constitute or mean a pre-election matter clearly excluded the matters not mentioned therein. The law is settled by an unending line of judicial decisions that where a statute expressly lists the items to which it applies, it excludes those not listed therein. This interpretative rule is often expressed in the maxim, the express mention of certain things excludes those not mentioned.
So if Section 285(14) had intended the actions concerning the election and appointments of persons to political party offices membership of a political party, setting up committees or organs of a political party and its general internal affairs, constitute pre-election matters, it would have stated so. Since such actions are not listed in Section 285(14) as pre-election matters, they are not. The suit leading to this appeal is not a pre-election matter”.
What follows from the above interpretation given to Section 285(14) of the Constitution, by the Supreme Court, to my understanding is that, to determine whether a particular matter or claim is a pre-election matter within the context or ambit of Section 285(14) of the Constitution, the Court should first look at the parties, i.e whether the plaintiff is an aspirant, or a political party. Secondly, the claim must relate to any of the items listed or mentioned in Section 285(14) (a)—(c). From the questions posed for determination in the originating summons, the reliefs sought and the facts deposed to in the Affidavit in Support, the 1st—17,908th Respondent have not contended that any or all of them is/are aspirants in any election. Indeed, the facts leading to the institution of the suit in the Court below, reveal clearly that the suit is an outcome of the ward congresses of the Appellant (APC) conducted in Kano State. Congresses of political parties are to be distinguished from primary election. A primary election is the process whereby a political party members nominate or select candidates of that party to contest or run in a general election. Party Congresses are generally conducted to select the leadership of a political party. That is why it is considered as an internal affair of the political party. See Black’s Law Dictionary (7th ed.) at p. 536 and the case of Honourable Abdullahi Shuaibu v. Husseini Aladein & Ors. (2020) LPELR-55324 (CA).
It should therefore be noted that, the 1st-17,908th Respondents did not institute the action leading this appeal as “aspirants” in a “primary election” complaining that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by their political party; to wit: the All Progressives Congress (APC) in respect of the selections or nomination of candidates for an election. The said Respondents are not “aspirants” who are challenging the actions, decision or activities of INEC in respect of their participation in an election or that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by INEC in respect of the selection or nomination of candidates and participation in an election. Obviously none of the 1st-17,908th Respondents is a political party, so their claim can not in any way come under paragraph (c) of Section 285(14) of the Constitution.
The 1st-17,908th Respondents have argued that their claim is predicated on the violation of the Constitution and Guidelines of the APC. That may be so, but Section 285(14) (a) of the Constitution stipulates that the act complained of, must be in relation to the conduct of the “party’s primaries” conducted for the purpose of “selecting or nominating its candidate for an election”. Thus, apart from the fact that none of the 1st-17,908th Respondents who instituted the claim at the lower Court is a candidate or aspirant, the party’s ward congress was not to nominate or select candidates for an election. It should be noted that Section 156 of the Electoral Act defines an “aspirant” as “a person who aspires or seeks or strives to contest an election to a political office”. The said Section 156 of the Electoral Act defines “election” to mean any election held under the Electoral Act and includes a referendum. This provision therefore excludes any congress of a political party conducted for the purpose of electing the political party’s leaders or officers. The logical conclusion I have arrived at therefore, is that the APC Ward Congresses, the subject of the dispute leading to this appeal, cannot be described as a pre-election matter. It is too remote to the conduct of an election within the context of the Electoral Act as to describe it as a pre-election dispute. Section 87(9) of the Electoral Act is also not helpful to the 1st-17,908th Respondents, because, for a suit to be validly sustained under that provision, the plaintiff must be an aspirant at a political party primaries. To succeed in an action under Section 87(9) of the Electoral Act (supra), the following conditions precedent must be satisfied:
a. there must have been a primary conducted to select or nominate the political party’s candidate;
b. the complainant must have been an aspirant who took part or ought to have taken part in the party’s primaries; and
c. that the political party did not comply with a provision of the Electoral Act and/or its Guidelines for the nomination or selection exercise.
Where any of the above pre-conditions is not satisfied, the action cannot qualify as a pre-election dispute. Obviously, a dispute arising from leadership tussle or election of executive members of a political party, as in the instant case, do not come under the subject matter of Section 87(9) of the Electoral Act (supra). See APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ugwuegede v. Asadu (2018) 10 NWLR (Pt.1628) 460, Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454 and Ukachukwu v. P.D.P. (2014) 17 NWLR (Pt.1435) 134. On that note, I hereby hold that the dispute subject of this appeal is not a pre-election matter. In so holding, we are by the principle of stare decisis bound by APC v. Moses and APC v. Aguma which are later in time to APC v. Umar.
Having found as above, it is my firm view that, the suit subject of this appeal is predicated on the APC Ward Congress to elect the ward leaders in Kano State. In other words, the claim of the 1st-17,908th Respondents at the trial Court, was for a declaration that they 1st-17,908th Respondents be declared as the duly, validly, properly, authentically and democratically elected Ward Executive committee members and ward delegates of the All Progressives Congress (Appellant) for all the wards and Local Government Areas of Kano State. That situates their claims squarely and snugly within the realm of the party’s leadership dispute and therefore an intra-party dispute. It has long been settled by the Supreme Court in the case of Onuoha v. Okafor & Ors. (1983) 14 NSCL 494 at 499-507 that, where the relief sought is on leadership or intra-party dispute between members of the same political party, only the party can resolve the dispute. Thus, in Utuama v. INEC & Ors. (2017) 13 NWLR (Pt. 1582) 175, the Supreme Court per Ogunbiyi, JSC held as follows:
“By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership dispute in the 2nd Respondent. Thus, clearly and rightly submitted by the learned counsel for the 2nd and 4th Respondents, is not an exception to Onuha vs. Okafor (1983) 2 SCNLR 244… In other words, it is not open for a Court to inquire into, the membership/leadership of a political party”.
No doubt, Courts of law do not make the practice of interfering with the way and manner political parties, run their internal affairs. This is so because, the general rule is that, a political party is a voluntary organization or association. Persons join such political parties of their own choice. That being so, any dispute over its internal affairs is not justiciable and therefore no Court has jurisdiction to entertain such dispute. This is based on the commonly known principle or rule in FOSS v. Harbottle (1843) 2 Tave 461. The rule postulates that, where there is a dispute between members of an association, it must be resolved by a majority decision of the members. The principle is relevant and applicable in the running of political parties. Thus, in Pam v. ANPP & Ors. (2007) LPELR-9000 (CA), this Court held as follows:
“…the Court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections, or to determine any dispute arising from the internal affairs of a political party. In the instant case, the subject of the complaints and claims of the 1st to 3rd Respondents are related to the internal affairs of a political party viz the party officers…”
Recently, specifically on the 14th day of January, 2022, the Kano Division of this Court, in a case quite similar to the facts of this case: Alhaji Muktar Ibrahim Gagarawa & 2 Ors. v. Peoples Democratic Party (PDP); in Appeal No: CA/KN/39/2021, Abiru, JCA defined an intra-party dispute to mean “a dispute between members of a political party inter se, or between a member or members on the one hand, against the political party, on the other hand”. That definition eminently captures the status of the suit leading to this appeal. No doubt all the contending parties in this appeal, except the 17,915th Respondent (INEC) are members of the same political party – APC (Appellant herein). The dispute leading to this appeal is therefore, without any argument, an intra-party leadership tussle. See Abdulkadir v. Mamman (2003) 14 NWLR (Pt. 389), Dahiru & Anr. v. APC & Ors. (2016) 4 NWLR (Pt. 1555) 218; and Amaechi v. INEC (2007) 9 NWLR (Pt. 1040) 504.
The settled law therefore is that, no Court has the jurisdiction to hear and determine complaints or matters pertaining to intra-party disputes of political parties. See People Democratic Party v. Badaire (2020) All FWLR (Pt. 1024) 170; Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197; Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340 and Peoples Democratic Party v. Ogundipe (2018) LPELR-43887 (CA). The only exception is where the Plaintiff claims that either his contractual right or any of his personal right has been breached by the action of the Defendant; or that the action of the defendant involves some disputation of crime. Thus, in Aguma v. APC (supra) the Supreme Court, per Agim, JSC held at pages 406-407 Paras. H-E as follows:
“The claim by the appellant that the 1st Respondent violated its own constitution cannot vest him with the locus standi to institute an action in respect of the claim. He has no right of action against his political party concerning its decisions or actions on its internal affairs. This is because the Political Party is a voluntary organization or association. As a member of the party, he has no right of action against his political party for breach of its constitution concerning the internal affairs of the party. He has no personal right to be a member of the Executive or Committee or Caretaker Committee of the Rivers State Chapter of the 1st Respondent. The right to determine who should lead or manage the said River State Chapter of the 1st Respondent as a member of the State Executive Committee belongs to the 1st Respondent which right it exercises through a majority of its members through its congresses organized by the NWC or directly by the NWC in the case of appointment of a Caretaker Committee. The appellant has not alleged that his contractual right or any of his personal right has been breached by the action of the 1st Respondent or that the action or decision of the 1st Respondent involve some disputation of a crime against him…
The doctrine of ultra vires has no application in the internal affairs of a voluntary association. So the decision of the National Working Committee of the 1st Respondent appointing its Rivers State Caretaker Executive Committee cannot be challenged in Court as being contrary to the appellant’s constitution… It is emphasized in all these decisions that a member of a voluntary organization cannot sue for breach of the internal Constitution and regulations of the organization in the internal affairs of the organization”.
Recently, in Jegede v. INEC (2021) 14 NWLR (Pt. 1797) 409 at 562-563 Paras. G-E, the Supreme Court reiterated the point when it held that:
“Courts have no jurisdiction over the internal affairs of a political party, except where a statute expressly gives a Court jurisdiction to deal with any internal affair of a political party. The practice of the Court is not to run associations (corporations or unincorporated associations) for the members. It leaves the members to run their association. In this case, the 2nd Respondent, a registered political party being a voluntary organization, the questions of who should hold offices in it, whether it can appoint its members to hold office in acting capacity or authorize a member to exercise powers of an office in it and whether it has violated its own Constitution by appointing a member to hold a particular office in it or to discharge the functions of that office, cannot be entertained by any Court. Those questions deal with the internal administration of the internal affairs of the political party. Those are non justiciable questions”.
In the instant case, which questions the act, decision and/or action of the Appellant (APC) not to recognize the 1st-17,908th Respondents as the elected persons to hold the offices of Wards Executive Committee Members or Ward Delegates from the 44 Local Government Areas of Kano State borders on the internal affairs of the political party. Any dispute arising from the actions of the political party in that regard, is exclusively within the purview of the administration of the internal affairs of the party. Such decision cannot be the subject of any determination by any Court. It is not justiciable. I accordingly hold that the learned trial Judge erred grievously, when he assumed jurisdiction, heard and determined the dispute. Issues one and two are therefore resolved in favour of the Appellants.
On Issue three (3), learned counsel for the Appellant contended that, the learned trial Judge erred when he assumed jurisdiction by hearing and deciding on the suit instituted by the 1st-17,908th Respondents when it had no territorial jurisdiction to do so. that, the dispute that led to the 1st-17,908th Respondents’ suit arose out of the APC Ward Congresses conducted in the 484 Wards of Kano State, conducted by the APC Congress Committee with the 17,911th and 17,912th Respondents as Chairman and Secretary respectively, and therefore, the trial Court erred in holding that the issue for determination was limited to the choice made by the leadership of APC at the National level in Abuja. That, the judgment of the trial Court did not only determine the choice of the APC (Appellant herein), as the authentic result of the WCC’s report but also the manner or conduct of the ward congresses held in Kano and its outcome. It was therefore submitted that, the subject matter of the suit instituted by the 1st-17,908th Respondents centered on the conduct and outcome of the APC’s (Appellant’s) ward congresses in Kano State, therefore, only the Kano State High Court of Justice or the Federal High Court sitting in Kano had jurisdiction to hear and determine the suit.
Learned senior counsel for the Appellant went on to cite the cases of Audu v. All Progressives Congress (2020) All FWLR (Pt. 1036) 310 and Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69 to further submit that, a Court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another State. It was then submitted that since the subject matter of the 1st-17,908th Respondents’ suit arose from the APC Ward Congresses held in Kano State, the suit ought to have been instated in the Kano State High Court which had the territorial jurisdiction to hear and determine the matter. The cases of Mailantarki v. Tongo (supra) and Pali v. Abdul (2020) All FWLR (Pt. 1027) 763 at 776 per EKO, JSC were again, cited in support. That in determining the issue, there is no difference between the outcome of the ward congress and the decision of the APC at the National level to choose between the two results and report (Exhibits G & MND3 – MND46) on one hand, and the report and results in Exhibits F and J series on the other hand. That, they are one and the same thing, inseparable and intertwined. That, an attempt was made to separate the conduct and result of a Primary Election or Congress from the decision of the National Working Committee was made in the case of Audu v. All Progressives Congress (supra) but hit a brick wall as the Supreme Court dismissed the said argument.
Learned senior counsel for the Appellant went on to submit that, from the judicial pronouncements of the Supreme Court, particularly the case of Audu v. All Progressives Congress (supra), since the subject matter of the 1st-17,908th Respondents’ suit is the outcome of the APC’s Ward Congresses held in Kano State, instituting the actions in the FCT High Court, was an act of “forum shopping” and that the natural effect was for the trial Court to decline jurisdiction and strike out the suit. We were accordingly urged to resolve this issue in favour of the Appellant.
On this issue, learned counsel for the 1st-17,908th Respondents drew our attention to the claim of the Plaintiffs/1st-17,908th Respondents, and the findings of the learned trial Judge at pages 6604-6606 and 6609-6610 of Vol.7 of the record of appeal, to contend that, all the arguments of learned senior counsel for the Appellant is a reharsh of the 17,909th and 17,910th Respondents’ argument at the trial Court. It was then submitted that, the sole process to be considered on the issue of jurisdiction is the originating process. That, the central relief sought by the 1st-17,908th Respondents is the Appellant’s (APC) decision and/or action or proposal not to recognize the 1st-17,908th Respondents, or the report and result submitted to the APC Headquarters for an undemocratic report without results. That the reliefs sought place this action within the precincts of Ibrahim v. APC (No.1) (2019) 16 NWLR (Pt. 1699) 444 and not Dalhatu v. Turaki (supra) or Mailantarki v. Tongo (supra). Furthermore, that the cases of Pali v. Abdul (supra) and Audu v. APC (supra) were decided in their own peculiar facts. That in the instant case, the claim is that the ward election was conducted and the 1st-17,908th Respondents (Plaintiffs) won. Their names were forwarded and submitted at the APC National Headquarters in Abuja. The APC accepted the result but later decided in Abuja to substitute the names of the Respondents with an unknown list of persons. We were accordingly urged to resolve this issue in favour of the 1st-17,908th Respondents.
In reply on points of law, learned senior counsel for the Appellant contended that, the decision in Pali v. Abdul (supra) is the appropriate one to apply in this case, being latest in time on the issue. The case of Ajibode v. Gbadamosi (2021) 7 NWLR (pt. 1776) 475 was then cited to submit that, in any case, jurisdiction is conferred in a Court by the Constitution and/or statutes and not rules of Court. We were again urged to resolve this issue in favour of the Appellant.
Now, the issue here is to determine whether the lower Court, to wit: the Federal Capital Territory High Court had the territorial jurisdiction to hear and determine on the Plaintiffs/1st-17,908th Respondents’ claims. Jurisdiction is the power or authority a Court has to take cognizance of matters presented to it in a formal way for determination. Jurisdiction is therefore a threshold issue being the livewire that determines the competence of Court of law or tribunal to entertain a case presented to it for determination in a formal way. It is the blood that sustains and gives life to any action in a Court of law. See Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142 at 171; Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 and Adeleke v. Osha (2006) 16 NWLR (Pt. 1006) 608. Thus, in Oloba v. Akereja (1988) 7 S.C (Pt. 1) 1 at 14-15, the Supreme Court held that:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for a Court to embark on the hearing and determination of the suit, matter or claim. There is no justice in exercising jurisdiction where there is none, it is injustice to the law, to the Courts and the parties to do so”.
It should be noted that, what primarily confers jurisdiction on a Court of law is the statute that creates the Court. In other words, the foundation of the jurisdiction of a Court is either the Constitution or the Statute that creates it. See A. G; Rivers State v. A.G; Akwa Ibom State (2011) LPELR-633 (SC) and Eghazerba v. Eribo (2010) 9 NWLR (Pt. 119) 411. That being so, the parties are not at liberty to confer jurisdiction on the Court; therefore, if the Court lacks jurisdiction, it must not willy-nilly insist that it has jurisdiction.
The issue of jurisdiction raised here, pertains to the territorial jurisdiction of the Federal Capital Territory High Court. It should be noted that, jurisdiction of Courts consist of territorial and substantive jurisdiction. Substantive jurisdiction refers to the subject matters over which a Court may adjudicate, and is almost always expressly stipulated by the Constitution or other enabling statutes. Territorial Jurisdiction on the other hand, refers to the geographical area within which the authority of the Court may be exercised, and outside which the Court will have no power or authority to act. Thus, in Tukur v. Gov’t of Gongola State (1989) 4 NWLR (Pt. 117) 517, the Supreme Court, per Oputa, JSC (of blessed memory) had this to say:
“…the first is the legal capacity, the power and authority to hear and determine a judicial proceedings – in the sense that it has the right and power to adjudicate concerning the particular subject matter in controversy. The second is the geographical area in which and over which the legal jurisdiction of the Court can be exercised. This area of authority is called geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction”.
It therefore means that, the Court must have both substantive and territorial jurisdiction before it can validly hear and determine a matter. This is so because, the subject matter of the claim may be within the substantive jurisdiction of the Court but relate to facts or events that occurred outside the territorial limits or jurisdiction of the Court. In such a circumstance, the Court will be deprived of jurisdiction to hear and determine the matter. See Dalhatu v. Turaki (supra); PDP v. Raheem & Ors. (2019) LPELR-48747 (CA); Okafor & Anor. v. Hashim & Ors. (2001) 1 NWLR (Pt. 693) 183 at 190; Mallam Abduljelil Momoh Yahaya v. All Progressives Congress & Ors. (2019) LPELR-47845 (CA) and Ukachukwu v. Chidolue & Ors. (2019) LPELR-47775 (CA). In the case of Mailantarki v. Tongo (2017) LPELR-42467 (SC), the Supreme Court held that:
“It is settled law that, a Court in one State does not have jurisdiction to hear and determine a matter within the exclusive jurisdiction of another State… There can not be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory. In the instant case, the cause of action, which is the primary election of the 2nd Respondent, took place in Gombe State. There is no jurisdiction for the institution of the case before the High Court of the FCT in Abuja. The filing of the suit before that Court is a clear example of “forum shopping” in the hope of securing a favourable outcome. This practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner who filed the suit”.
Learned counsel for the 1st-17,908th Respondents argued that; the reliefs sought by the 1st-17,908th Respondents is predicated in the decision and/or action of the Appellant not to recognize the said Respondents or reject the report and result already submitted to the APC Headquarters. Learned senior counsel for the 1st-17,908th Respondents put it graphically at page 25 lines 3-8 of the 1st-17,908th Respondents’ Brief of Arguments as follows:
“… in the instant case, the claim is that the ward election was conducted, the 1st–17,907th Respondents (Plaintiffs at the trial Court) now, their names was (sic) rightly forwarded and submitted at APC Headquarter in Abuja. The APC accepted the report and the result BUT LATER DECIDED IN ABUJA TO SUBSTITUTE THE NAMES OF THE PLAINTIFFS (WHO ARE THE WINNERS) WITH AN UNKNOWN LIST OF PERSONS”.
This presupposes that the APC (Appellant herein) had to make a choice between two reports and results tendered or presented to it by the contending parties. Those reports and results were annexed to the contending affidavits of the parties as Exhibits G and MND3-MND46 on one hand, and reports and results as in Exhibits F and J series on the other hand. There is no way the trial Court could determine which report and result to accept without probing into or determining on the conduct of the said ward congresses. This is particularly so when the 1st-17,908th Respondents had contended that the report and results (Exhibits MND3-MND46) were fake and forged. Surely, for the APC (Appellant) to take a decision, evidence has to be led thereon. Invariably, the Court cannot arrive at a decision as to which of the reports and results tendered or presented to the APC is the genuine and authentic result and/or report without calling evidence. That will ultimately lead to calling evidence or witnesses and cross-examining those witnesses on the conduct of the said ward congresses in Kano State. In my view, to narrow a consideration of the issues to the decision of the APC to choose one of the results and entering judgment for the 1st-17,908th Respondents, is to simplify the issue.
Now in the case of Audu v. APC & Ors. (supra), the plaintiff had instituted the action in the High Court of the Federal Capital Territory, Abuja contending that he participated in the primary election of the APC for the Kogi East Senatorial District, and won. That, rather than forward his name to INEC, the 1st Respondent (APC) forwarded the name of another person. The trial Court, the FCT High Court suo motu asked counsel to address it on the issue of territorial jurisdiction. Upon taking the addresses of the parties, the trial Court struck out the suit for want of jurisdiction. In so striking out, the learned trial Judge held that:
“I do not have the intention of “grabbing” the case which falls within the jurisdiction of the Federal High Court, or High Court of Kogi State… I shall err on the side of caution. I lack jurisdiction to make any order thereon. The case is accordingly struck out”.
It should be noted that in the case cited above, the suit as pleaded in the originating summons centered on primary election that took place in Kogi State. All the aspects of the said primary election took place in Kogi State, and no aspect of the primary election took place in the FCT, Abuja. The only aspect of that case was the forwarding of the name of the parties in Abuja. This Court, per Aboki, JCA (as he then was) held that, the High Court of the FCT lacked the territorial jurisdiction to hear the suit. On further appeal to the Supreme Court, the decision of this Court was affirmed. In affirming the decision, the Supreme Court, per Augie, JSC held at Pp.222-224 of the report as follows:
“…it goes without saying that the decided cases tilted against him,.. But he is not claiming ignorance of the above decision of this Court; what he is saying is that his complaint has nothing to do with the primaries conducted in Kogi State, but with the unlawful forwarding of 2nd Respondent’s name by the National Working Committee of 1st Respondent, domicile in Abuja, to 3rd Respondent, based in Abuja.
In arguing as he did, the Appellant appears to have lost sight of the fact that the forwarding of the 2nd Respondent’s name to the 3rd Respondent,” is a function of a successful primary election” as the Court of Appeal put it, or “is akin to climbing a tree from the treetop instead from the ground” as 1st Respondent so eloquently put it. Obviously, the FCT High Court cannot look into his complaint without considering the primaries held in Idah in Kogi State, and since it has no jurisdiction to look into what happened in Kogi State, Court of Appeal was definitely right to affirm its decision because in its words “All the aspects of the primary election took place in Kogi State, no aspect of the primary election took place in the FCT, Abuja”.
The above-quoted judgment of the Supreme Court in Audu v. All Progressives Congress (supra) is instructive enough. In the instant case, all aspects of the ward congresses in dispute took place in Kano State, and no aspect of the said congresses took place in the Federal Capital Territory (FCT), Abuja. The issue of whether the decision and/or action of the All Progressives Congress (APC) not to recognize the 1st-17,908th Respondents as the duly, validly, properly, authentically and democratically elected persons as the ward Executives and ward delegates for the 44 Local Government Areas of Kano State, took place in Kano State. The complaint against the decision of the APC not to so recognize the 1st-17,908th Respondents cannot be divorced or separated from the conduct of the APC Congresses in Kano State. They are undoubtedly intertwined. I therefore hold that, since the subject matter of the Respondents’ suit in the Court below pertains to the outcome of the APC’s Ward Congresses held in Kano State, the learned trial Judge erred when he assumed jurisdiction to hear and determine the suit.
Now, it is settled law that, where a Court lacks jurisdiction to hear and determine a particular cause, it will lack the jurisdiction to pronounce on the merit or otherwise of the matter. In other words, where a Court lacks jurisdiction to entertain a cause or matter, any step taken in the proceedings, including any decision or judgment will amount to an exercise in futility. The only remedy will be to strike out the initiating process and set aside any decision and/or judgment given thereon. See All Progressives Congress & Ors. v. Enugu State Independent Electoral Commission & Ors. (2021) LPELR-55337 (SC); Idisi v. Ecodril (Nig.) Ltd. & Ors. (2016) All FWLR (Pt. 850) 1016 and Eze Okorocha v. United Bank for Africa Plc. & Ors. (2018) LPELR-45122 (SC). In the instant case, the triune issues of jurisdiction having been resolved in favour of the Appellant, I am of the view that the learned trial Judge erred in law, when he assumed jurisdiction to hear and determine the 1st-17,908th Plaintiffs/Respondents suit. Having thus held, I hereby order that the Originating Summons filed before the Federal Capital Territory (FCT) High Court on the 18th day of August, 2021, be struck out.
On that note, and having resolved issues 1, 2 and 3 in favour of the Appellants, it is apparent that this appeal has merit. It is hereby allowed. Consequently, the judgment of the High Court of the Federal Capital Territory, Abuja delivered by Hamza Adamu, J on the 30th day of November, 2021 in Suit No: FCT/HC/CV/2030/2021 is hereby set aside for lack of jurisdiction.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft copy of the leading judgment just delivered by my noble lord, Haruna Simon Tsammani JCA, and I am in complete agreement with the adroit reasoning and the impeccable conclusions reached therein to the effect that the appeal has merit and ought to be allowed, and I hereby adopt as mine.
My lords, I shall just say a word or two by way of my contribution to the rich analysis in the leading judgment. The parties are ad idem that what took place on 31/7/2021 in the APC Kano in the 484 Wards was a party Ward Congress. It was clearly not a party primary election to elect or nominate candidate of the APC in Kano State for any elections. See Section 285 (14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Our attention was drawn to the decisions of the Supreme Court in APC V. Umar (Supra) decided in 2019 and APC V. Moses (Supra) decided in 2021. I have taken time to go through the facts and decisions in both cases, and it does appear to me that not only are the facts in the case of APC V. Moses (Supra) more apposite to the facts in the instant case, it was also a decision of the Apex Court in 2021. Thus, being a Court lower in the hierarchy of Courts to the Supreme Court and being bound by all its decisions, in the event of being confronted with two decisions of the apex Court, this Court is bound, under the well settled and antique principles of stare decisis, to apply the latter of the two decisions. This Court is therefore, bound to follow the decision in APC V. Moses (supra). See Mohammed V. M.E. Company Ltd. (2010) 2 NWLR (Pt. 1197) p. 473. See also Osakue V. Federal College of Education (Technical), Asaba (2010) 10 NWLR (Pt. 1201) 1.
In APC V. Moses (2021) All NWLR (Pt. 12) p. 495 at pp. 542-543, the purport and effect of the provisions of Section 285 (14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), were exhaustively considered by the Supreme Court and had per Jauro JSC, stated inter alia thus:
“…In determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (14) (a) -(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) … From the statutory definition of pre-election provided above, I am persuaded to disagree with counsel for the Respondents that the action culminating into the instant appeal is a pre-election matter…”
It follows therefore, without any doubts from the above decision of the Apex Court, that by Section 285(14) (a)-(c) of the Constitution of Nigeria 1999 (as amended) justiciability is conferred by law on only pre-election matters preparatory to an election, which generally, or should I say usually, arises from political party primaries which must be conducted in line with the party’s Constitution and Guidelines.
So, is a Ward Congress of a political party a pre-election matter and thus justiciable in law? I think not! Then, is a Ward Congress of a political party merely an internal affair of a political party and thus non-justiciable in law? I most assuredly think so! In law, issues arising from the conduct of Ward Congress of a political party, unlike primaries of a political party for the election and/or nomination of candidate of the political party for an election, is purely an intra-party dispute or internal affairs of a political party and is completely subject to the will of the majority, as in majority rule, of the political party, which simply put is akin to a voluntary organization, and thus not justiciable in law. See Onuoha V. Okafor (1983) 14 NSCC 494. See also APC V. Moses (2021) All NWLR (Pt. 12) 595; Eyitayo Jegede V. INEC & Ors. (2021) LPELR – 55481 (SC).
Now, from the depositions of facts and the copious documentary Exhibits relied upon by the parties, it is clear to me and I so hold that the claims of the 1st-17,908th Respondents borders on the internal affairs and/or processes and of the APC, one of duly registered political parties in Nigeria. In my finding therefore, such claims are in law non-justiciable. It is beyond any dispute, even as between the parties that the APC Ward Congress held in Kano State on 31/7/2021 was purely an internal affair of the APC in which its leaders at the 484 Wards level were to emerge. It was clearly not the primaries of the APC to elect its candidates for any general election and therefore, it was not within the purview and ambit of pre-election matters over which the Court below could assume jurisdiction. It was purely an intra-party dispute arising from its own internal affairs over which the Court below has no jurisdiction whatsoever to meddle and interfere with as to how the APC runs and manages its own internal affairs. See Onuoha V. Okafor (1983) 14 NSCC 494, where the Supreme Court had stated inter alia thus:
“A party is like a club, a voluntary association… Members join of their own free will… The party’s decision is final over its own affairs. Members of a Party would do well to understand and appreciate the finality of a party’s decision over its domestic or internal affairs”
See also Utuama V. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party V. Ogundipe (2018) LPELR-43887, Terver Kakih V. People Democratic Party and Ors (2014) 15 NWLR (Pt. 1430) 374 at pp. 413-414.
On 31/7/2021, the members of the APC in Kano Stale had trooped out to hold their Ward Congress in the 484 Wards in Kano State as sanctioned by their party leaders and for which a 7 – Man Ward Congress Committee was set up by the authority of the National Officers, though in caretaker capacity, to conduct and superintend the APC Ward Congress in the 484 Wards of Kano State, the result of which is indisputably the subject matter of the claims of the 1st-17,908th Respondents.
My lords, I have taken time to scrutinize the copious documentary Exhibits relied upon by the parties, and considered the depositions in their numerous affidavits, counter – affidavits and further and better affidavits of the parties as in the Records of Appeal. It is clear to me and I so hold that from the entirely of the facts and circumstances leading to the commencement of the Originating Summons by the 1st – 17,908th Respondents as Claimants against the Appellants and the 17,909th – 17,916th Respondents as Defendants in the High Court of the Federal Capital Territory Abuja, the subject matter and or claim of the 1st – 17,908th Respondents, bordering on the Ward Congress of the APC in the 484 Wards of Kano State that held on 31/7/2021 and its outcome, took place or arose in their entirety and entirely in Kano State, which is clearly outside the territorial jurisdiction and competence of the Court below as established by law for the Federal Capital Territory, Abuja. See Section 255(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
The Courts, particularly the Supreme Court had on countless occasions and in numerous cases emphatically held and reiterated that the High Court of a State, which also refers to and includes the Court below, the High Court of the Federal Capital Territory, can only exercise jurisdiction in respect of matters which arose within their territorial, or geographical, jurisdiction. Indeed, the Court below, manned by mere mortal man, is not an extra-territorial being or body that can sit in Abuja in the Federal Capital Territory to know and decide on facts and things that occurred or took place in faraway Kano State or indeed in any other States of the Federation.
Thus, the cause of action, even from the horse’s mouth, the 1st–17,908th Respondents, no doubt arose outside the Federal Capital Territory Abuja and therefore, the only rational inference that can be drawn, and which I hereby so draw, is that in commencing their Originating Summons against the Appellants and the 17,909th-17,916th Respondents in the High Court of the Federal Capital Territory Abuja rather than in the High Court in Kano State, where the cause of action arose, the 1st–17,908th Respondents knew and were indeed engaging and did engaged in forum shopping, which is a specie of abuse of Court process. I cannot but hereby condemn such act in no unmistaken terms. See Dingyadi V. INEC (2011) 44 NSCQR 301 at p. 340. See also Pali V. Abdul (2020) All FWLR (Pt. 1027) 763; Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310; Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69.
In my finding therefore, the Court below clearly lacked the territorial jurisdiction either to hear and/or determine the Originating Summons of the 1st-17,908th Respondents against the Appellants, and I so firmly hold. See Okponetus & Ors V. APGA & Anor (2021) LPELR- 55923(CA) per Georgewill, JCA. See also Prince Yahaya Oyidi Audu V. APC & Ors (2019) 78 NSCQR 540.
It is for the above few words of mine but for the fuller reasons adroitly marshaled out in the leading judgment that I too hold that this appeal has merit and ought to be allowed. Accordingly, it is hereby also allowed by me. I shall abide by the consequential orders made in the leading judgment.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment just delivered by my learned brother Tsammani, JCA. I am in full agreement with the reasonings expressed therein and the conclusions reached thereby. I adopt those reasonings as mine and in consequence adjudge the appeal meritorious. Accordingly, I too hereby set aside the judgment and orders made by the trial Court on the 30th of November, 2021 in Suit No. FCT/HC/CV/2030/2021 for want of jurisdiction.
Appearances:
Abdul Adamu, Esq., with him, Sagir Suleiman Gezawa, Esq. For Appellant(s)
Nuraini Jimoh, SAN and Ibrahim Idris, SAN with Osita Anene, Esq. and Abubakar Nuhu Ahmad, Esq. – for 1st – 17,908th Respondents
Chief M. N. Duru, Esq., with him, Ibrahim Aliyu Nassarawa, Esq. and Adekunle Taiye Falola, Esq. – for 17,909th & 17,910th Respondents
Sir Stephen Adehi, SAN and Prof. Josephine Agbonika, SAN with Martins F. Ekpah, Esq. and I. X. O. Imbu, Esq. – for 17,911th – 17,914th Respondents
Bashir M. Abubakar; Esq., with him, S. M. Danbaba, Esq. – for 17,915th Respondent. For Respondent(s)