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APC v. GARBA & ORS (2022)

APC v. GARBA & ORS

(2022)LCN/16240(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, May 10, 2022

CA/G/41/2022

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS APPELANT(S)

And

1. IBRAHIM GARBA 2. LAWAL SANI KALARWI 3. ALH. ADAMU KAWU 4. ADAMU YUSHE’U 5. UMARU DANGWATI 6. HASSAN SULEIMAN TAKWANDO 7. MALLAM YAHAYA ZANGE 8. MAI KALWA KULUM 9. ABUBAKAR ISHIYAKU 10. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)

 

RATIO

WHETHER OR NOT A PERSON WHO DID NOT TAKE PART IN THE PRIMARY ELECTION OF A POLITICAL PARTY AS AN ASPIRANT HAS LOCUS STANDI TO INVOKE THE JURISDICTION OF THE COURT

From a plethora of decisions on the issue, it is trite that a person who did not take part in the primary election of a political party as an aspirant has no locus standi to invoke the jurisdiction of the Court under Section 87(9) of the Electoral Act 2010 (as amended). See PDP V Ikem (2021) LPELR-53323(CA) 32-35, per Owoade, JCA;APC V Lere (2020) 1 NWLR (Pt. 1705) 254, 285, per Rhodes-Vivour, JSC; Ufomba V INEC (2017) 13 NWLR (Pt. 1582) 175, 213-216, per Sanusi, JSC; PDP V Badaire (2019) LPELR-47036(CA) per Abiru, JCA; PDP V Ogundipe (2018) LPELR-43997(CA) per Oseji, JCA (as he then was);Ardo V Nyako (2014) 10 NWLR (Pt. 1416) 591, 610, per Rhodes-Vivour, JSC. PER SANKEY, JC.A.

THE DIFFERENCE BETWEEN THE TERMS “JURISDICTION” AND “JUDICIAL POWER”

However, it is trite that the terms “jurisdiction” and “judicial power” mean two different things. ‘Judicial power’ means the power which every sovereign authority must have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. In short, it means the authority of the Court to adjudicate upon and decide any matter before it which is within its jurisdiction – Abacha V FRN (2014) LPELR-22014(SC) 98, E-F, per Kekere-Ekun, JSC; AG Lagos State V Dosunmu (1989) LPELR-3154(SC) 80, G, per Obaseki, JSC; Adesanya V President of the FRN (1981) LPELR-147(SC) 71-72, D-A, per Obaseki, JSC. The ‘jurisdiction’ of a Court, on the other hand, refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes – Akeem V FRN (2018) LPELR-4389(CA) 37, B, per Otisi, JCA; Idemudia V Igbinedion Univ., Okada (2015) LPELR-24514(CA).
​The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the statutory jurisdiction of the Court’. The two terms are not interchangeable. The source of the statutory jurisdiction of the Court is the statute itself, which will define the limits within which such jurisdiction is to be exercised; whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law – Yonwuren V Modern Signs (Nig) Ltd (1985) LPELR-3529(SC) 34-36, B-A, per Sowemimo, JSC.
Therefore, ‘judicial powers’ are bestowed on Courts by virtue of Section 6(6) of the Constitution and are to be exercised as bestowed by the Constitution or any law duly made creating other Courts. Such judicial powers are vested in the Courts which are enumerated in Section 6(5) of the Constitution, being Courts established for the Federation. While jurisdiction defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. The Constitution and statutes which set up Courts, cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural. See Enyi V Benue State JSC (2021) LPELR-54437(CA) 32; Dingyadi V INEC (2011) LPELR-950(SC).
PER SANKEY, JC.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): What has given rise to this appeal is the Composite Ruling of the Federal High Court, Gombe Division delivered in Suit No. FHC/GM/CS/3/2021 on 2nd March, 2022, Coram: H.I.O. Oshomah, J.

Briefly put, the facts that led to this appeal from the Appellant’s standpoint in its Brief of Argument are as follows: Ward Congresses were conducted by the Appellant, the All Progressives Congress (APC), across the length and breadth of Gombe State for the election of delegates to vote officers into the executive committee of the party. Prior to this, on 29th July, 2021 the Appellant approved the appointment of a Ward Congress Committee (WCC) to superintend the Ward Congresses in Gombe State. In line with Article 20(1) (a) of the APC Constitution and Article A of the Mode of Election at the Congresses in the APC Guidelines for Ward Congresses 2021, members, elected officials and stakeholders of the Appellant congregated at a meeting on 22nd July 2021, resolved and adopted the consensus candidacy or consensus approach for the purpose of electing APC Executive Committees at the Ward, Local Government and State levels of Gombe State. A Communique containing the resolutions were published in a newspaper of wide circulation, the Daily Trust Newspaper, on 28th July, 2021. Following these resolutions, the proposal was accepted by a voice vote at Akko Local Government Area of Gombe State, as contained in the results of the Ward Congress held on 31st July, 2021. The results were signed by the Chairman and Secretary of the APC Ward Congress Committee (WCC). Unhappy with this development, the 1st to 9th Respondents (hereinafter referred to as ‘the Respondents’) approached the Federal High Court (hereinafter referred to as ‘the lower Court’) vide a Writ of Summons in Suit No. FHC/CS/3/2021 filed against the Appellant and 10th Respondent (INEC) (as 1st and 2nd Defendants) contesting the outcome of the Ward Congresses. In like manner, two similar suits, to wit: Suit No. FHC/GM/CS/4/2021 and Suit No. FHC/GM/CS/5/2021 were filed by some other members of the party.

​From the perspective of the Respondents, being members of the Appellant (APC), they had aspired to contest the Chairmanship of their various Wards in Akko Local Government Area of Gombe State. Towards the fulfillment of their aspirations, they paid for the Expression of interest and Nomination Forms. They contend that the Appellant failed to issue them the Forms, failed to conduct a Screening Exercise and failed to conduct the Ward Congresses which were scheduled for 31st July, 2021. These omissions, they allege, were in contravention of the Party’s Constitution and Guidelines for Ward Congresses, 2021. As a result, they instituted this action against the Appellant and 10th Respondent. Their case on pleadings was essentially that there was a gross violation of the party’s Constitution and Guidelines for the Conduct of Ward Congresses in Akko LGA by the Appellant who failed to conduct the Ward Congresses in accordance with its Constitution and Guidelines.

Upon service of the Respondents’ Writ of Summons and Statement of Claim on the Appellant, it filed its Statement of defence and counter-claim. In addition, the Appellant filed a Notice of Preliminary Objection to the hearing of the suit. Similar Preliminary Objections were filed by the Appellant in the other sister suits. The grounds for the objection were as follows:
1. The subject matter of the suit filed by 1st–9th Respondents is an intra-party issue or internal affair of the Appellant’s political party which this Honourable Court cannot adjudicate upon;
2. The 1st-9th Respondents’ suit does not disclose a valid cause of action against the Appellant;
3. The 1st–9th Respondents have no locus standi to maintain this action against the Appellant;
4. The 1st–9th Respondents suit is academic and constitutes an abuse of Court process.

The lower Court heard all the preliminary objections raised in the three suits and delivered a Composite Ruling on 2nd March, 2022. In its ruling, the lower Court dismissed the Preliminary Objection in the case leading to this appeal, i.e., Suit No. FHC/GM/CS/3/2021, as well as that in Suit No. FHC/GM/CS/5/2021; while it upheld the Preliminary Objection in Suit No. FHC/GM/CS/4/2021. Dissatisfied with the outcome of the Preliminary Objection, the Appellant appealed to this Court via its Notice and Grounds of Appeal filed on 8th March, 2022. Therein, it complained on six grounds. The Appellant sought the following reliefs from this Court:
1. “AN ORDER of this Honourable Court allowing the appeal and setting aside in its entirety the ruling of the lower Court delivered on 2nd March, 2022.
2. AN ORDER of this Honourable Court dismissing and/or striking out the 1st–9th Respondents’ Writ of Summons and suit in its entirety.
3. Such further order or orders as the Honourable Court may deem fit to make in favour of the Appellant in the circumstances.”

At the hearing of the appeal on 26th April 2022, learned Senior Counsel for the Appellant, Prof. Mamman Lawan, adopted the arguments contained in the Appellants’ Brief of argument filed on 18-03-22, as well his Reply to the Respondents’ Brief on points of law as marshalled in the Appellants’ Reply Brief of argument filed on 22-04-22. He urged the Court to allow the appeal and set aside the ruling of the lower Court. On the part of the Respondents, learned Senior Counsel, Paul Erokoro, SAN, adopted the submissions in the 1st–9th Respondents’ Brief of argument filed on 19-04-22. In a brief adumbration of the arguments in his Brief of Argument, learned Senior Counsel submits that the case of the Respondents is that the provisions of Section 285(14) (a)-(c) of the 1999 Constitution (as amended) and Section 87(9) of the Electoral Act (as amended) are not relevant to the facts of the suit leading to the instant appeal. Rather, the case is predicated on the general jurisdiction of the Federal High Court in Sections 6(6) (a) & (b), 36 and 251 (p) (q) (r) & the proviso to paragraph (s) of the Constitution (supra), as well as Sections 35 and 36 of the Electoral Act. Senior Counsel therefore urged the Court to dismiss the Appeal.

The 10th Respondent, INEC, although duly served with all the Court processes filed by the Appellant and the 1st–9th Respondents, did not file any Brief of argument in response to the appeal. Therefore, its Counsel, J.W. Nimfas Esq., had nothing to urge on the Court.

The Appellants, in their Brief of Argument filed on 18-03-22, culled the following six issues for the determination of the appeal, which were conceded by learned Senior Counsel for the Respondents as the real issues arising for determination in this appeal:
1. “Whether or not the learned trial Judge was not wrong in holding that the 1st–9th Respondents’ suit was justiciable and hence a pre-election matter in wrong interpretation and misapplication of the provisions of Section 85(3) of the Electoral Act, 2010 (as amended), Sections 6(6) (a), 36(1) and 251 of the Constitution of the Federal Republic of Nigeria, 1999) as amended)? (Ground 1)
2. Whether or not the learned trial Judge was not wrong in assuming jurisdiction to adjudicate on the 1st–9th Respondents’ suit bordering on internal processes of a political party? (Ground 2)
3. Whether or not the learned trial Judge was not wrong in holding that the 1st–9th Respondents’ suit disclosed a valid cause of action against the Appellant? (Ground 3)
4. Whether or not the learned trial Judge was not wrong in holding that the 1st–9th Respondents hadlocus standi to institute their action before the lower Court? (Ground 4)
5. Whether or not the learned trial Judge was not wrong in holding that the 1st–9th Respondents suit is not academic and does not constitute an abuse of Court process? (Ground 5)
6. Whether or not the learned trial Judge was not wrong when in its consolidated ruling delivered on 2nd March, 2021 (sic) in respect [of] the matters before it, viz:
a. FHC/GM/CS/3/2021
All Progressives Congress V Mohammed Abubakar Buba & 30 others;
b. FHC/GM/CS/4/2021
Abdullahi Bello Magaji & 9 others V All Progressives Congress & 14 others;
c. FHC/GM/CS/5/2021
All Progressives Congress V Ibrahim & 9 others;
it made different and contradictory pronouncements on the three cases notwithstanding the fact that they all arose from similar facts and circumstance, that is, the Appellant’s Ward and Local Government Congresses held in Gombe State? (Ground 6)”

The Court agrees with the six issues for determination and shall address them in the manner in which they are argued.

SUMMARY OF ARGUMENTS OF BOTH COUNSELS:
In arguing issues one and two together, learned Counsel for the Appellant submits that the lower Court was wrong when it misapplied Section 85(3) of the Electoral Act (as amended), and Sections 6(6) (a), 36(1) and 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to hold that the suit filed by the Respondents was justiciable and a pre-election matter. Rather, he submits that the suit before the trial Court was not a pre-election matter governed by Section 285(14) (a)–(c) of the Constitution (supra) because the subject-matter of the suit relates to APC Local Government Congresses held in 484 Wards of Gombe State on 31-07-21. It was therefore not about the primary elections of the party preparatory to a general election, as envisaged by Section 285(14) (a)–(c) of the Constitution (supra). Counsel also submits that a pre-election matter excludes Ward Congresses, and so Courts of law have no vires to determine any issue involving ward congresses, as was wrongly held by the lower Court.

Counsel submits that the provisions relied on by the lower Court did not empower it to determine post-party congress disputes or to classify post-party congress disputes as pre-election matters. Therefore, the suit filed by the Respondents, not being a pre-election matter, is not justiciable.

​Counsel further submits that the suit before the lower Court bordered on the internal processes of a political party since it was centered on the APC Local Government Congress. It was therefore an intra-party dispute which Courts of law in Nigeria have no jurisdiction to entertain.

Counsel submits that Sections 6(6) (b) and 251 of the Constitution (supra) as well as Section 85(3) of the Electoral Act (supra) relied on by the lower Court, are subject to the overriding specific provisions in Section 285(14) (a)–(c) of the Constitution (supra) read along with Section 87(9) of the Electoral Act (supra). It is argued that where there is a general provision on a matter in a statute, as well as a specific provision on the same issue, the specific provision will prevail over the general provision. In consequence, Counsel urged the Court to hold that the subject matter of the suit is an intra-party issue alien to the specific jurisdiction provided in Section 285(14) (a)–(c) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra). Therefore, the lower Court was wrong in holding that it possessed jurisdiction to determine issues bordering on the internal affairs of the Appellant.

​In his submissions under issues three and six, learned Senior Counsel submits that the lower Court was wrong when it held that the suit disclosed a valid cause of action against the Appellant. He argues that once it is found that the subject-matter of the suit is an intra-party dispute, then there is no wrong recognized and protected by law which the Appellant has committed against the Respondents. He reasons that since actions arising from intra-party disputes are not recognized as legal wrongs, except for matters arising from the conduct of party primaries, then the suit is devoid of any valid cause of action against the Appellant, as a non-justiciable suit cannot give rise to any valid cause of action. The suit is therefore liable to be dismissed or struck out.

Furthermore, learned Senior Counsel submits that the lower Court erred when, in its consolidated ruling, it made different and contradictory pronouncements on the three suits, notwithstanding the fact that they all arose from similar facts and circumstances, i.e., the Appellant’s Ward and Local Government Congresses held in Gombe State. He argues that the claimants in the three suits made similar averments in their pleadings. In like vein, the preliminary objections raised by the Appellant in all three suits were on similar grounds. Nonetheless, the lower Court sustained the Preliminary Objection in respect of Suit No. FHC/GM/CS/4/2021 and so dismissed it. However, the lower Court dismissed the objections in Suit No. FHC/GM/CS/3/2021 (leading to this appeal) and Suit No. FHC/GM/CS/ 5/2021. Counsel therefore urged the Court to hold that in all three suits, no valid cause of action was disclosed against the Appellant.

​Under issue four for determination, learned Silk submits that once issues one, two and three are resolved against the Respondents and it is held that the suit is an intra-party issue and so is non-justiciable, it follows that the Respondents lack the locus standi to maintain the action against the Appellant. That this is more so that from their pleadings, the Respondents did not state that as members of the party, they were aspirants as defined in the Electoral Act (supra), the APC Constitution and its Guidelines. Also, that by their pleadings, the Respondents admit that they did not comply with the procedure of nomination for the executive positions which they claimed to have interest in. This, he contends, is an admission against interest. Counsel therefore urged the Court to find that the Respondents did not provide verifiable evidence to disclose their locus standi to institute the action. Consequently, the lower Court lacked jurisdiction to entertain the suit and same is liable to be struck out.

Under issue five, learned Silk submits that once the Court finds that the suit is an intra-party dispute, devoid of a valid cause of action for which the Respondents lack the legal standing to institute, then it follows that the suit is academic, moot and hypothetical in nature, and fit for dismissal. Learned Silk contends that in the circumstance, the Writ of Summons is invalid, incompetent, illegal, null and void ab initio and constitutes an abuse of Court process. For these submissions, he relied on a host of decisions which shall be referred to in the course of resolving the appeal. Finally, learned Senior Counsel urged the Court to allow the appeal and grant all the reliefs contained in the Notice of Appeal.

​In response, learned Senior Counsel for the Respondents arguing issues one and two together, submits that the lower Court was right when it held that the suit of the Respondents was justiciable. He submits that the complaints of the Respondents at the lower Court rested on the Appellant’s arbitrary violation of the 1999 Constitution (supra), the Electoral Act, 2010 (supra), as well as the Appellant’s Constitution and Guidelines for the Conduct of Ward Congresses, 2021. These violations, it is contended, affected the rights and personal interests of the Respondents which they sought to address and protect by instituting their claim before the trial Court.

​Learned Senior Counsel submits that one of the exceptions and grounds upon which a Court of law can interfere with the internal affairs of a political party is where such a political party violates its own Constitution, Rules and Guidelines. In such a circumstance, Courts are empowered to intervene and prevent such arbitrariness, impunity and illegality by political parties against their own Rules and Constitution. Senior Counsel contends that from the pleadings and reliefs of the Claimants at the lower Court, their case is centered on the Appellant’s arbitrariness and gross violation of its Constitution and Guidelines by its failure to conduct the Ward Congresses which were scheduled to hold on 31st July, 2021. Counsel argues that based on this, the suit is justiciable and the lower Court had jurisdiction to entertain it.

Learned Silk therefore submits that by Section 6(6) (b) of the Constitution (supra), the Respondents are entitled to approach the Court for the determination of any question as to their civil rights and obligations and seek redress. It is based on this, as well as on the principle of equity expressed in the Latin maxim: ubi jus ibi remedium, that the Respondents approached the trial Court for a remedy against the wrong done them by the Appellant.

​In respect of issues three and six, learned Senior Counsel submits that the lower Court was right when it held that Suits Nos. FHC/GM/CS/3/2021 and FHC/GM/CS/5/2021 disclosed reasonable causes of action, while Suit No. FHC/GM/CS/4/2021 failed to do so. Counsel submits that it is the averments in pleadings that determines whether or not a suit discloses a cause of action. He contends that the trial Court examined all the pleadings in each of the three suits before making its findings, and so its pronouncements were not contradictory.

Senior Counsel further submits that a Court assumes that the averments in the Statement of claim are true and correct ex facie when deciding whether a suit discloses a reasonable cause of action. He contends that the suit leading to this appeal discloses a cause of action because the pleadings contain facts which, if taken as true, give the Respondents the right to complain against the conduct of the Appellant. In particular, that paragraphs 1-25 of the Statement of Claim show that the Respondents complained about the non-issuance of the Expression of interest and Nomination Forms, as well as other irregularities in contravention of the Appellant’s Constitution and Guidelines for the conduct of the Ward Congresses. The Respondents and other stakeholders lodged formal complaints to the Appellant’s executive officers in the State and the Governor for intervention. Despite this, the irregularities were not addressed before the day fixed for the Ward Congresses in the Party’s Guidelines. It is therefore submitted that these facts in the pleadings give the Respondents the right of action against the Appellant and the right to judicial relief; and so the trial Court was right when it found for the Respondents.

In respect of issues four and five, learned Senior Counsel submits that the Respondents sufficiently showed their interest in the subject matter in dispute by paragraphs 1, 2, 12 and 13 of the Statement of claim. Therein, they stated that they were card-carrying members of the Appellant who aspired to contest for positions in the Ward Congress election. That even though they paid for the Ward Congress Nomination Forms, the Appellant refused to issue them its Expression of Interest Forms contrary to its Guidelines for them to be eligible to contest. Based on this, Senior Counsel submits that the Respondents had locus standi to institute the action and seek redress pursuant to Section 6(6) (b) of the Constitution (supra).

​Senior Counsel further submits that the suit was neither academic nor an abuse of Court process. It was also not hypothetical but contained live issues for determination. That if the reliefs sought were granted, it would cause the Appellant to conduct Ward Congresses in all the Wards in Akko Local Government Area of Gombe State. By so doing, it would right the wrong that was done to the Respondents. Counsel finally urged the Court to dismiss the appeal and uphold the decision of the trial Court. Learned Silk relied on a multitude of decisions which shall be examined in the course of the judgment.

RESOLUTION OF ISSUES ONE TO SIX:
Having reviewed the respective submissions of both learned Senior Counsel for the Appellant and for the Respondents, the conspicuous issue that stares the Court in the face is whether the subject matter placed before the lower Court, being admittedly an intra-party matter, falls within the ambit of a pre-election matter as defined in Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and so, for all intents and purposes, is not justiciable; or whether, being undeniably an intra-party matter and not a pre-election matter within the definition of the law, it can still be entertained by a Court on other grounds, to wit: the violation of the Constitution and Guidelines of the party, as well as the breach of the Respondents rights and personal interest. Thus, issues one and two will be considered first.

In my considered view, issues three, four and five are all subsumed thereunder. For, where the claim is found to be non-justiciable and that the lower Court’s jurisdiction to entertain the suit is not activated, then logically it follows that no valid cause of action is disclosed, and the Respondents would lack the requisite legal standing to approach the Court with their claim, same having become academic.

I agree with both learned Senior Counsel that the resolution of these issues must be based on the claim of the Respondents placed before the lower Court as contained in their Writ of Summons and Statement of Claim, the jurisdictional challenge to the suit having been brought vide a Preliminary Objection to the hearing of the suit. The law is trite that it is the case of the Plaintiff as endorsed on the writ of summons and elaborated in the statement of claim, or any other originating process, that determines the jurisdiction of the Court.

​From the claim of the Respondents, they are members of the All Progressives Congress (APC) who each aspired to contest for the chairmanship of the party in their various Wards in Akko Local Government Area of Gombe State. Towards the actualization of their aspirations, they paid for the Expression of Interest/Nomination Forms as required by the Party Guidelines. However, that the Appellant did not conduct the ward congresses scheduled for 31st July, 2021. The Respondents’ contention is that this omission and/or failure was in contravention of the Party’s Constitution and Guidelines for Ward Congresses, 2021 and so breached their rights and personal interest.

Upon being served with the processes of the Respondents, the Appellant responded by filing a Statement of Defence which incorporated a counter-claim. It also simultaneously filed a Preliminary Objection challenging the competence of the suit and the jurisdiction of the lower Court to hear the suit on the ground that (i) its subject matter is an intra-party issue or internal affair of the political party which the lower Court cannot adjudicate upon;(ii) it does not disclose a valid cause of action against the 1st Defendant;(iii) the Plaintiffs have no locus standi to maintain this action; (iv) and the Plaintiffs’ suit is academic and constitutes an abuse of Court process.

​After due consideration of the preliminary objection, the learned trial Judge held inter alia as follows (at pages 361-363 of the printed Record of Appeal):
“Though the general rule is that where an intraparty pre-election matter is brought within the purview of Section 87(9) of the Electoral Act, it will not be justiciable if it does not fulfill the condition of being a matter of Party’s Primaries and all other conditions stipulated therein, it is however in no doubt that the provisions of Section 6(6) (a) & (b) of the Nigerian Constitution provides that the judicial powers of the Court shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court and to all matter[s] between persons, or between government or authority and to any persons in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
Section 251(1) (q) of the Constitution also donated [to] this Honourable Court its interpretive jurisdiction over the Nigerian Constitution so far as it relates to the Federal Government of Nigeria or any of its agencies which in this case is the Independent National Electoral Commission (INEC). However, it is trite law that merely joining the Federal Government or any of its agencies as a party to a suit does not automatically bring the suit within the jurisdiction of this Honourable Court, unless the subject matter also falls within the purview of matters which this Honourable Court has jurisdiction over…
In this instance, from the Writs of Summons and Statements of Claims of Plaintiffs, the provisions which the Plaintiffs premised their actions are Section 223 of the Constitution of Nigeria, Section 85(3) of the Electoral Act which takes its root from that constitutional provision, as well as the 1st Defendant Party’s Constitution and Guidelines made pursuant to same…
To my mind, where there is non-compliance with the above mandatory constitutional provisions, the aggrieved party whose personal, proprietary or contractual interest is affected thereby or against whom there is imputation of crime, has the right of access to Court. To hold otherwise is to encourage arbitrariness, anarchy and lawlessness in the running and management of political parties in Nigeria, which will have dire consequences on the government and the general citizenry of this country. Thus, the Court is provided this leeway to always intervene where arbitrariness, impunity, capriciousness and constitutional question is the crux and not where the matter involves only a political question.” (Emphasis supplied)

Relying on a host of decisions, and in particular, Boko V Nungwa (2019) 1 NWLR (Pt. 1654) 395, the learned trial Judge concluded thus at pages 371-372 of the printed Record:
“In my view, all that this principle of law is saying is that the Court has jurisdiction and the aggrieved member has the right to access Court for redress where the political party goes about its affairs arbitrarily and lawlessly without regard for its constitution and guidelines as well as the Constitution of Nigeria and the Electoral Act, if such arbitrary actions infringe on the constitutional provisions as it relates to the rights and interest of the affected members. It will no more be about Section 87(9) of the Electoral Act but about the constitutional power vested in Courts to prevent the arbitrary use of powers and breach of the constitution by political parties in a state govern (sic) by democratic ethos. That clearly denotes the thin line of exception between what is justiciable and what is not in the question of intraparty disputes and internal affairs of a political party. I so hold.
What grants jurisdiction is the non-compliance with either the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or the Party’s Constitution, and/or the Regulation and Guidelines of the Political Party. A Political Party is bound to comply with its Constitution and/or its Regulations and Guidelines. A Political Party must obey its Constitution, Guidelines and Regulation.”(Emphasis supplied)

​It is apparent from the findings of the trial Court that the learned trial Judge felt passionate about the acts of arbitrariness and gross violation of the party’s Constitution and Guidelines by the Appellant (APC) as alleged by the Respondents in their Statement of Claim. He therefore found it inconceivable and unacceptable that the Court should be shut out from looking into such grave allegations by Section 285(14) of the Constitution and Section 87(9) of the Electoral Act. The lower Court therefore invoked its inherent jurisdiction under Section 6(6) (a)-(b) of the Constitution (supra) and its interpretative powers of the Constitution imbued upon it by Section 251 (q) thereof, in justification of its position.
The Supreme Court, as well as this Court, have in recent times pronounced on the same or similar issues presented in this Appeal. Therefore, the Court does not have too far to look for answers to the predicament of the lower Court when it was faced with the provisions in Section 285(14) (a)-(c) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra) vis-a-vis Sections 6(6) (a) –(b), 223 and 251 (q) of the 1999 Constitution (supra) read along with Section 85(3) of the Electoral Act (supra). I have therefore used both a microscopic lens and a fine toothcomb to browse and scour through the numerous decisions available, in the resolution of the issues thrown up by this Appeal.
As correctly stated by learned Silk for the Respondents, the law is certain that in the determination of whether or not the Court is vested with jurisdiction to entertain an action, the Court is confined to the claim of the Plaintiff/Claimant as disclosed in his originating process, in this case, the Writ of Summons and Statement of Claim filed by the Respondents. This is the limit of the consideration of the processes filed by the parties before the lower Court. It cannot go further to inquire or look into the defence of the Defendant to the claim.

Therefore, the question which is glaring in the light of the grounds upon which the Appellant’s preliminary objection were rested, are: firstly, whether the action is justiciable being a complaint against the violation of the Appellant’s (APC) Constitution and Guidelines for the conduct of Ward Congresses relying on Section 223 of the Constitution and Section 85(3) of the Electoral Act, notwithstanding Section 285(14) (a)-(c) of the Constitution and Section 87(9) of the Electoral Act? Secondly, whether the lower Court has jurisdiction to entertain and hear a suit based on a complaint which falls within the purview of an intra-party matter where it affects the rights and personal interest of a claimant relying on Section 6(6) (a) & (b) and 251 (q) of the Constitution?
​Both learned Senior Counsel for the respective parties have quite commendably isolated the crux of the issue to be determined in their respective Briefs of argument, of course with slants leaning towards the advancement of their divergent positions. Whereas the argument of the Appellant is that, pursuant to Section 285(14) (a)-(c) of the 1999 Constitution (as amended) and Section 87(9) of the Electoral Act 2010 (as amended), the subject matter of the claim of the Respondents is not a pre-election matter as defined by the Constitution, but an intra-party dispute, and therefore it is non-justiciable; the argument of the Respondents is that, while the suit is not a pre-election matter, the claim before the lower Court is justiciable and one which can be heard by the lower Court since it complains of a violation of the Constitution and Guidelines of the political party which, pursuant to Sections 6(6) (a)-(b) and 251 (p) (q) (r) & (s) of the Constitution (supra), the Federal High Court is clothed with jurisdiction to adjudicate on. In addition, they contend that since the subject matter of the claim complains of the arbitrariness and gross violation of the Constitution and Guidelines of the party, which in turn violated the personal rights of the Respondents to contest for the seats of Chairmen in the Ward Congresses, Sections 36(1) and 223 of the Constitution (supra), as well as Section 85(3) of the Electoral Act (supra), cloak the lower Court with jurisdiction.
It is apparent that the keywords in both Section 285(14) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra) are “aspirant”, “primaries” and election”. Starting with Section 285(14) (a)-(c) of the Constitution, it provides –
“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 the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
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;
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 other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” (Emphasis supplied)
Section 87(1) & (9) of the Act (supra) provide:
“87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”(Emphasis supplied)
The word “aspirant” used in the above provisions, has been defined in Section 156 of the Electoral Act, thus:
“Aspirant” means a person who aspires or seeks or strives to contest an election to a political office.”
Thus, by Section 87(1) of the Electoral Act (supra), a political party which seeks to field candidates for elections under the Electoral Act, shall hold primaries for “aspirants” to all elective positions. This term has been interpreted to mean persons who not only contested the primary election of his party, but who actually participated in the primary election that he is challenging – Ardo V Nyako (2014) LPELR-22879(SC) 31, per Aka’ahs, JSC; Eze V PDP (2018) LPELR-44907.
Hence, by Section 87(9) of the Electoral Act (supra), a window is provided for an aspirant to approach a Court of law to challenge the conduct of a primary election by his political party if, in his opinion, the provisions of the Electoral Act, as well as the Guidelines of his party, have not been complied with. This is the condition precedent to the justiciability of complaints by aspirants challenging the political process conducted by a party in the choice of its candidates for an election. It is however explicitly and expressly restricted/confined to a challenge by“ an aspirant” to the conduct of “a primary election” preparatory to an “election”.
​It must be said that prior to the insertion of Section 87(9) into the Electoral Act 2010 (supra), Courts in Nigeria had held in a plethora of decisions that, on no account should Courts entertain political questions pertaining to the internal or domestic affairs of political parties, which (at the time), included the conduct of primary elections and other processes of nomination and sponsorship of candidates generally. See PDP V Sylva (2012) 13 NWLR (Pt. 1316) 85; Onuoha V Okafor (1983) 14 NSCC 494; & Dalhatu V Turaki (2003) LPELR-917(SC) 17, A-C, per Katsina-Alu, JSC).

In the instant case, parties are ad idem that the issue canvassed by the Respondents in their claim relates to the conduct of Ward Congresses for the office of Chairmen of Wards in Akko Local Government of Gombe State. The question is: whether the lower Court was vested with jurisdiction to entertain such a claim. In this regard, both learned Senior Counsel agreed that the claim was not a pre-election matter within the meaning and boundaries of Section 285(14) of the 1999 Constitution (supra) and Section 87(9) of the Electoral Act 2010 (supra).
Therefore, to re-state the obvious, in the light of the clear and unambiguous constitutional and statutory provisions, the claim of the 1st–9th Respondents, (i) having not been filed by Aspirants in a primary election of a political party, and (ii) the complaint, not being about the conduct of party primaries to select a candidate for the election, (iii) nor a complaint by Aspirants against the actions of INEC in the selection or nomination of candidates for an election in violation of the provisions of the Electoral Act, (iv) nor a complaint by a political party against INEC for disqualifying its candidate from participating in the election; was not a pre-election matter. Rather, the action was brought by members of a political party (APC) claiming that the party violated its own Constitution and Guidelines when it failed to hold Ward Congresses as scheduled in the eleven Wards in Akko Local Government Area of Gombe State to elect Ward Chairmen for the executive committee of the party in the State.
​Thus, I completely agree with learned Senior Counsel for the Appellant, as well as with learned Senior Counsel for the Respondents that the Respondents were not “aspirants” to an election, but aspirants to ward congresses scheduled to elect officers into leadership positions in the executive committee of the Appellant (APC) in Gombe State but which did not hold. These Ward Congresses had nothing to do with preparations for any election but were to select officers/chairmen to run or manage the affairs of the APC (Appellant) at an administrative level. The status of the Respondents as contenders or contestants for leadership positions in the party are therefore outside the contemplation of “aspirants” under Section 285(14) (a)-(c) of the Constitution (supra) and Section 87(9) of the Electoral Act to warrant the invocation of the limited jurisdiction of the Federal High Court (lower Court) under those provisions in the circumstances of this case. In addition to this, the Respondents in their claim, do not claim to have participated in the primary election of their party leading to election into political party offices. From a plethora of decisions on the issue, it is trite that a person who did not take part in the primary election of a political party as an aspirant has no locus standi to invoke the jurisdiction of the Court under Section 87(9) of the Electoral Act 2010 (as amended). See PDP V Ikem (2021) LPELR-53323(CA) 32-35, per Owoade, JCA;APC V Lere (2020) 1 NWLR (Pt. 1705) 254, 285, per Rhodes-Vivour, JSC; Ufomba V INEC (2017) 13 NWLR (Pt. 1582) 175, 213-216, per Sanusi, JSC; PDP V Badaire (2019) LPELR-47036(CA) per Abiru, JCA; PDP V Ogundipe (2018) LPELR-43997(CA) per Oseji, JCA (as he then was);Ardo V Nyako (2014) 10 NWLR (Pt. 1416) 591, 610, per Rhodes-Vivour, JSC.
Thus, in respect of intra-party matters, as in the instant case, Courts have been consistent in holding that they lack jurisdiction to entertain same, unless it comes within the purview of the exception provided in Section 87(9) of the Electoral Act, which is: the selection or nomination of candidates in a primary election which is challenged by an aspirant. See PDP V Nwebonyi (2022) LPELR-57144(CA) 15, A-C, per Oyewole, JCA; Ufomba V INEC (2017) 13 NWLR (Pt. 1582) 175; APC V Okpo (2020) LPELR-49788(CA).
As aforesaid, learned Senior Counsel representing the parties in this appeal are ad idem that the action before the lower Court is not a pre-election matter, but is predicated on an intra-party dispute. They are also ad idem that, for that reason, the constitutional provision in Section 285(14) (a)-(c) of the Constitution (supra) does not apply to vest jurisdiction on the lower Court, this not being a pre-election matter. The point of departure is that learned Senior Counsel for the Respondents insists that the lower Court was right when it assumed jurisdiction to entertain the suit based on a combined reading of Sections 6(6) (b), 36(1), 223 & 251 (q) of the Constitution (supra) as well as Section 85(3) of the Electoral Act (supra).
From the Statement of Claim, the case before the lower Court (as aforesaid) is indexed in the APC Ward Congress. The Respondents’ complaint is anchored on the Appellant’s alleged arbitrary and gross violation of the 1999 Constitution (supra), the Electoral Act (supra), as well as the party’s Constitution and Guidelines, which they contend, has affected their “rights and personal interests”, and for which they approached the lower Court to protect. It was argued that this is one of the exceptions and grounds upon which a Court of law can interfere in the internal affairs of a political party. For this, learned Silk placed reliance on APC V Moses (supra); Onuoha V Okafor (1983) 4 NSCC 494; and Sheriff V PDP (2017) 14 NWLR (Pt. 1585)212, 318-319, E-B; Mato V Hember (2017) LPELR-42765(SC).
​While it is correct to say that the pronouncements of the Supreme Court and this Court in the above-cited cases relied upon by Senior Counsel for the Respondents, are indeed the law and express the attitude of Courts towards political parties that act contrary to their Constitutions and Guidelines, the cases must be considered within the context in which the findings and statements were made. A close examination of the facts in the cases relied on shows that they all arose from party primaries (and not party congresses) where the provision of Section 87(9) of the Electoral Act was flouted. The law is trite that a case is only an authority for what it decides – Adesokan V Adetunji, (1994) 5 NWLR (Pt. 346) 540, per Onu, JSC.
​With the greatest respect, given the claim in the Writ of Summons and Statement of Claim, I am of the considered view that the Respondents cannot circumvent the specific constitutional provision in Section 285(14) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra), to seek solace under Section 223(1) (a) of the 1999 Constitution (supra) and Section 85(3) of the Electoral Act 2010 (supra) which were copiously relied upon by the lower Court, because these latter provisions do not in any way or manner confer jurisdiction on any Court. Rather, they simply enjoin political parties to periodically hold elections in choosing principal officers and members of their executive committees, etc., and, in so doing, to practice internal democracy in the choice of the leadership of their parties.
In respect of the other decisions relied upon, I have taken time to scrutinize them and it is evident that they were all decided by the Supreme Court before the coming into force of Section 285(14) of the Constitution (Fourth Alteration, No. 21) Act of 2017, whose commencement date is 7th June, 2018. By this constitutional provision, it is beyond disputation that only pre-election matters as defined under Section 285(14 (a)-(c) (supra) are justiciable. To be more specific, the decisions in Sheriff V PDP (2017) 14 NWLR (Pt. 1585) 212, 318-319, E-B, per Gumel, JCA; and APC V Umar (2019) LPELR-47296(SC) 14-17, F-D relied upon by learned Senior Counsel for the Respondents, are not applicable to the facts in the instant appeal. The reasons are not far-fetched. The facts in the case ofSheriff V PDP (supra) which was delivered by the Court of Appeal per Gumel, JCA, is not on all fours with the facts of this case. However, more importantly, it has since been set aside by the Supreme Court. While the main findings in APC V Umar (2019) LPELR-47296(SC) 14-17, F-D, delivered in 2019, have since been qualified and further strengthened by later decisions of the Supreme Court in APC V Moses (2021) 14 NWLR (Pt. 1796) 278; Aguma V APC (2021) 14 NWLR (Pt. 1776) 351, 406; & Jegede V INEC (2021) 14 NWLR (Pt. 1797) 409, among many others decisions. In these latest decisions delivered in 2021 and 2022, the Supreme Court fine-tuned and honed the law with respect to the interpretation of Section 285(14) (a)-(c) of the Constitution (supra). It firmly, resolutely and indubitably restricted the nature of political party disputes that may be brought before the Court to pre-election matters. In order to avoid any uncertainty, ambiguity, equivocation or disputation that may arise over what constitutes “a pre-election matter”, the provision defined the term to include only matters which meet the fixed pre-conditions expressly set out in Section 285(14) (a)-(c) of the Constitution. By the doctrine of stare decisis, this has become the extant position of the law, same being later in time to APC V Umar (supra) emanating from the same Court. At this stage it is imperative to examine the decisions relied upon by both parties which are relevant to the issue of the justiciability of the Respondents’ action before the lower Court.

Like I said, learned Silk for the Respondents placed heavy reliance on the decision in PDP V Sheriff (2017) 14 NWLR (Pt. 1585) 212, 318-319, per Gumel, JCA to buttress his arguments that the claim before the lower Court, being a challenge against their party for its failure to conduct ward congresses in contravention of its constitution and guidelines, not being a pre-election matter, is still justiciable. The reason given in the decision is that Courts will not countenance arbitrariness of a party and the violation of its Constitution and Guidelines in the choice of its party leadership. However, I take judicial notice of the fact that the majority judgment of the Court of Appeal in that appeal was overruled in the same year that it was delivered, i.e., 2017, by the Supreme Court in PDP V Sherrif (2017) LPELR-42736(SC) 70-72, A-D, per Muhammad, JSC (now CJN). Therein, the Supreme Court upheld the dissenting judgment of Orji-Abadua, JCA and reinstated the judgment of the trial High Court of Rivers State. The apex Court therein simply reiterated the supremacy of the party Constitution and Guidelines over its members, no matter how powerful a member considers himself, in relation to the conduct of the party’s convention and the choice of the leadership of the party. For emphasis, the facts of the case and the issues addressed therein are certainly not the same or similar to the facts in the instant appeal. Therefore, even though the finding that a political party’s constitution is supreme and binding on its members without exception, is well-founded, the case does not address the crux of the issue in this appeal which is: whether or not the claim of the Respondents before the lower Court is justiciable, regard being had to Section 285(14) of the Constitution which came into force after this decision was rendered. It is settled law that a case is only an authority for what it decides. Thus, the decision must not be pulled willy nilly by the ear, to fit into the facts of this case, where it does not.
I have equally thoroughly read through the decision of the Supreme Court in APC V Umar (supra) 14-17 which, in defining what constitutes a pre-election matter, held that party congresses as well as party primaries, and anything done prior to an election, may be described as pre-election matters. However, since 2019 when this decision was delivered, the law being dynamic, the Supreme Court has gone further to develop the law in its subsequent decisions rendered from its hallowed portals.
One of such decisions is contained in the case of APC V Moses (2021) 14 NWLR (Pt. 1796) 278, per his lordship, Amina Augie, JSC delivered in 2021, the facts of which are virtually on all fours with the facts of this case. Therein, the complaint in the claim before the trial Court was also about the conduct of APC’s Ward Congresses in Rivers State, as in the instant case. After due consideration, both the trial Court and the Court of Appeal held that the suit arose from a pre-election dispute. However, the Supreme Court, in interpreting the provision of Section 285(14) (a)-(c) of the 1999 Constitution (supra) held differently. At pages 542-543 paras B-C of the Report, Jauro, JSC held:
“In determining what a pre-election matter is, recourse must be had 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… By virtue of the overriding effect of the constitution, this Court does not have the vires to expand, as the Respondent Counsel wants it to, the definition and scope of the pre-election matter beyond the provisions of Section 285(14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (supra). This can only be done if the said Section is amended but until then, every judicial interpretation of the term pre-election matter ought to be considered within the parameters of Section 285(14) (a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (supra).”(Emphasis supplied)
Toeing the same line, Agim, JSC at page 546, A-D of the Report, held as follows:
“Section 285(14) (a) to (c) by expressly listing the 3 types of matters that constitutes or means 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 interpretation rule is often expressed in the maxim the express mention of certain things excludes those not mentioned.
So, if Section 285(14) had intended that actions concerning the future conduct of party congresses for any purpose should 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.” (Emphasis supplied)
Again, in Aguma V APC (2021) 14 NWLR (Pt. 1776) 351, 406, A-G, Agim, JSC reiterated his position on this issue thus –
“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 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 and 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.
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 and its general internal affairs, constitutes 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 up to this matter is not a pre-election matter.”(Emphasis supplied)
Also, in Eyitayo Jegede V INEC (2021) LPELR-55481(SC), the Supreme Court yet again reaffirmed its position when it decided that a claim which centered on the Local Government Congress is an internal affair of a political party and not a pre-election matter within the purview of Section 285(14) (a)-(c) of the 1999 Constitution (supra) and Section 87(9) of the Electoral Act, 2010 (supra). Unambiguously and unequivocally, the Supreme Court once more held –
“Courts have no jurisdiction over the internal affairs of a political party… The practice of the Court is not to run associations (corporations or incorporated 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 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 a political party. Those are non-justiciable questions.” (Emphasis supplied)

Still, yet again more recently in an appeal decided on 21st January, 2022 in Anyakorah V PDP (2022) LPELR-56876(SC), the Supreme Court reiterated the law. Therein, the apex Court was faced with facts which are similar to those that have arisen in this appeal. The subject matter was Ward and Local Government Congresses of the Peoples Democratic Party held in Anambra State. In dismissing the appeal, the Supreme Court held that the subject-matter of the case was non-justiciable and not a pre-election dispute. Muhammad, JSC intoned as follows at pages 12-15, D-E of the Report:
“It is certainly evident from the questions and relief of the Appellant sought at the trial Court that the suit is not a complaint about any election. From the Appellant’s amended originating summons and the supporting affidavit thereto, the grudge is about the 1st Respondent’s removal of some names of delegates… The 1999 Constitution (as altered) which overrides any other law or principle contrary enunciated by any Court, including the apex Court, has maintained the foregoing position of the Court on the principle when in Section 285 thereof it elaborately provides for what a pre-election suit connotes.” (Emphasis supplied)
For the sake of completeness, it would not be out of place to examine one of the many decisions of the Court of Appeal on this issue. In APC & 2 others V Sulaiman & 17,914 others (Unreported) Appeal No. CA/ABJ/CV/1034/2021, judgment delivered on 17th February, 2022, pages 38-46, Tsammani, JCA held inter alia –
“Indeed the facts leading to the institution of this 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’s 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. Thus it is considered as an internal affair of the political party… 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)-(c) 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 candidates 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 not 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 “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…
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 political party primaries… Obviously, a dispute arising from the 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)… On this note, I hereby hold that the subject of this appeal is not a pre-election matter. In so holding, we are by the principles of stare decisis bound by APC V Moses and APC V Aguma which are later in time to APC V Umar.” (Emphasis supplied)
The learned jurist also made the following findings on the nature of the claim before the trial Court, same having been declared not to be a pre-election matter:
“Having found as above, it is my firm view that the suit the subject of this appeal is predicated on the APC Ward Congress to elect Ward leaders in Kano State. In other words, their claim… is 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 & 7 others (1983) 14 NSCL 494 at 499-507 that, where the relief sought is on the leadership or intra-party dispute between members of the same political party, only the party can resolve the dispute… The law therefore is that no Court has the jurisdiction to hear and determine complaints on matters pertaining to intra-party disputes of political parties… Any dispute arising from the actions of the political party in that regard, is exclusively within the purview 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.” (Emphasis supplied)
I am completely in complete alignment with the findings above, even as they are fully applicable to the facts of the suit leading to this appeal. Certainly, Section 87(9) of the Electoral Act (supra) is not a ‘carte-blanche’ or a ‘blank cheque’ or even an ‘open sesame’ for all species of political matters that arise prior to an election. Those matters that do not fall within the category so defined are too remote to be accommodated and adjudicated by Courts. The provision is as constrictive in its application as is Section 285(14) (a)-(c) of the Constitution (supra). A suit has to be complaint relating to the selection or nomination of a candidate for an election.
In the case of Emenike V PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi, JSC in his lead judgment, while emphasizing the narrow scope of the jurisdiction vested in High Courts by Section 87(9) of the Electoral Act (supra), said:
“The Courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred under Section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the Court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the Constitution and Party Guidelines.” (Emphasis supplied)
Therefore, the interpretation of Section 87(9) of the Electoral Act is not meant to operate at large such as to open a floodgate of litigation by political party members who are dissatisfied with the conduct of party congresses and even primary elections. The jurisdiction of Courts under this Section is limited to examining if the conduct of primary elections were strictly in accordance with the Party’s Constitution and Guidelines, emphasis also on the nature of the complaint – APC V Okpo (2020) LPELR-48766(CA).

At the risk of repetition, the facts of the case leading to the instant appeal do not relate to the nomination or selection in a primary election of anyone as a candidate of a political party for election.
Consequently, in the light of the numerous decisions from the apex Court and this Court representing the current position of the law, it is no longer subject to dispute or conjecture that issues relating to Ward, Local Government and State Congresses of political parties to choose the leadership of the executive committee of a political party are intra-party disputes which are the internal affairs of a party. Therefore, any issues arising therefrom, are non-justiciable.
I have surfed through these decisions interpreting the relevant provisions of the law in respect of the specie of pre-election matters that a Court can entertain to establish the extant and settled law on the subject of disputes that arise between members inter-se or between members and their political party before an election. This is notwithstanding the fact that learned Senior Counsel for the Respondents has readily agreed that the claim of the Respondents is not a pre-election matter and so it is not covered by Section 285(14) of the Constitution.
I am mindful of the fact that the contention of learned Senior Counsel for the Respondents is that the Respondents filed the suit under the exception provided in Section 87(9) of the Electoral Act and captured in APC V Moses (supra) per Agim, JSC, for the enforcement of their “rights and personal interests”, which it is contended, were breached by the failure of the Appellant to conduct Ward Congresses as provided by the party’s Constitution and Guidelines. However, from the law expounded in the decisions of the Supreme Court referred to in this judgment, these “rights and personal interest” must be personal and/or contractual rights for which the remedy is in a claim for damages. They must also be situated within the context of the extant and relevant laws governing electoral processes in Nigeria in order to bring them under matters which a Court can adjudicate upon. The question therefore is: whether the Respondents can be said to have legally guaranteed and enforceable rights personal to them to aspire and be selected/elected to the leadership of their political party? I think not. In addition to this, their claim is not that their contractual rights have been breached by the party, neither have they claimed damages for any such breach. The Respondents cannot therefore sneak their claim into the exception provided. I will explain anon.
​Section 223 of the Constitution (supra) and Section 85(3) of the Electoral Act (supra) cannot be stretched out of shape and distorted to accommodate such rights and personal interest of the Respondents with regard to their ambitions to be chairmen of their party selected through ward congresses. It cannot seriously be contended that the Respondents have a personal or fundamental right to be the ward and/or Local Government Chairmen of their party executive. Rather, for what comprises the personal rights of members of a political party, such must be construed strictly within the context of Section 285(14) (a)-(c) of the Constitution (supra), i.e., relating to the processes of a primary election. Such personal rights cannot be not interpreted at large to include any and/or every action or omission of a political party which a member perceives to be inimical to his personal interest, desire and/or ambition. If such were to be the case, then Courts would be inundated and enmeshed in endless disputes between members and their political party, which disputes are essentially family/internal/domestic disputes to be resolved by the processes set up within the party itself, same not being legal wrongs created and provided for by the Constitution and/or the Electoral Act, but in the nature of political wrongs. This must be the rationale for the finding and timely warning of his lordship, Augie, JSC in APC V Moses (supra) 320, A, thus:
“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 the Courts to be seen as an integral part of the political struggle for power, is not in the interest of anyone.”
I cannot but agree more!

​Since learned Senior Counsel for the Respondents has readily conceded that the claim does not fall within the precincts of Section 285(14) (a)-(c) of the Constitution which exclusively provides for pre-election matters, then the exposition of the law in this regard is as stated and re-stated in the current decisions of the Supreme Court in APC V Moses (supra) and Aguma V APC (supra) and Eyitayo Jegede V INEC (supra) and the lower Court is bound by them. By these decisions, the settled law is that Courts are not allowed to delve into the internal/domestic/family affairs of a political party, being a voluntary association to which members ascribe to willingly, as its jurisdiction is ousted by law. Such matters described as intra-party, are non-justiciable.
Consequently, all Courts lower in hierarchy to the Supreme Court must bow and kowtow to it. See also the recent decisions of the Court of Appeal on these issues: APC V Sulaiman & Others (Unreported) Appeal No. CA/ABJ/CV/1034/2022, Judgment delivered on 17th February, 2022, per Tsammani, JCA; Akinremi & Another V Suleiman & Others (Unreported) Appeal No. BJ/CV/1020/2021, judgment delivered on 17th February, 2022, per Georgewill, JCA; McFoy & 3 Others V Chola & Others (Unreported) Appeal No. CA/ABJ/CV/03/2022, judgment delivered on 17th April, 2022, per Gafai, JCA; and Gagarawa & 2 Others V Peoples Democratic Party (PDP) & 6 Others (Unreported) Appeal No. CA/KN/39/2021, judgment delivered on 14th January, 2022, per Abiru, JCA.

I acknowledge the ingenious and spirited efforts made by learned Senior Counsel for the Respondents to bring the claim under the umbrella of Section 6(6) (a) & (b) of the Constitution which provides for the general jurisdiction and inherent power of Courts, as well as Section 251(q) of the Constitution which provides for the interpretive jurisdiction of the lower Court. In its judgment, the lower Court also held that pursuant to Sections 6(6) (a) & (b), 223, & 251 (q) of the Constitution and Section 85(3) of the Electoral Act, it was clothed with jurisdiction to entertain the claim. It is for these reasons that it dismissed the Preliminary Objection. Its reasoning basically is that Sections 6(6) (a) & (b) along with 251 (q) of the Constitution vested it with jurisdiction over the suit.
​However, it is trite that the terms “jurisdiction” and “judicial power” mean two different things. ‘Judicial power’ means the power which every sovereign authority must have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. In short, it means the authority of the Court to adjudicate upon and decide any matter before it which is within its jurisdiction – Abacha V FRN (2014) LPELR-22014(SC) 98, E-F, per Kekere-Ekun, JSC; AG Lagos State V Dosunmu (1989) LPELR-3154(SC) 80, G, per Obaseki, JSC; Adesanya V President of the FRN (1981) LPELR-147(SC) 71-72, D-A, per Obaseki, JSC. The ‘jurisdiction’ of a Court, on the other hand, refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes – Akeem V FRN (2018) LPELR-4389(CA) 37, B, per Otisi, JCA; Idemudia V Igbinedion Univ., Okada (2015) LPELR-24514(CA).
​The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the statutory jurisdiction of the Court’. The two terms are not interchangeable. The source of the statutory jurisdiction of the Court is the statute itself, which will define the limits within which such jurisdiction is to be exercised; whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law – Yonwuren V Modern Signs (Nig) Ltd (1985) LPELR-3529(SC) 34-36, B-A, per Sowemimo, JSC.
Therefore, ‘judicial powers’ are bestowed on Courts by virtue of Section 6(6) of the Constitution and are to be exercised as bestowed by the Constitution or any law duly made creating other Courts. Such judicial powers are vested in the Courts which are enumerated in Section 6(5) of the Constitution, being Courts established for the Federation. While jurisdiction defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. The Constitution and statutes which set up Courts, cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural. See Enyi V Benue State JSC (2021) LPELR-54437(CA) 32; Dingyadi V INEC (2011) LPELR-950(SC).
​Thus, while the judicial power of Nigeria as a sovereign State is vested in the lower Court among other Courts, to wit: The Federal High Court, being one of the Courts listed in Section 6(5) of the Constitution, its jurisdiction is defined and circumscribed by Section 251 of the Constitution. Therein, it is unquestionable that the lower Court is not vested with jurisdiction to hear and determine matters relating to intra-party disputes between members of a political party inter-se, or between the party and its members.
Indeed, similar arguments were proffered in the case of APC V Okpo (2020) LPELR-49767(CA) 32-60, D-C in respect of a matter appealed from the FCT High Court. It was however adroitly resolved by this Court per Agim, JCA (as he then was) in the following manner:
“The attractive argument of learned Counsel for the respondent that the trial Court correctly assumed jurisdiction to entertain and determine the respondent’s claim by virtue of the provisions of Ss. 6(b) and 257(1) of the 1999 Constitution is not correct… It is glaring from the clear words of those provisions that the judicial power of the Courts extends only to the determination of question of legal rights and obligation and the trial Court is given jurisdiction to hear and determine only proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. So the judicial power of Courts does not extend to the determination of questions over non-existent legal rights or non-justiciable rights or political issues. See Abdulkadir V Mamman (supra). In the light of the foregoing, I hold that the trial Court wrongly assumed jurisdiction to entertain and determine the respondents’ suit.” (Emphasis supplied)
Therefore, I equally hold that the learned trial Judge erred when he sought cover and cloaked himself with jurisdiction using Section 6(6) (a) & (b) and Section 251 (q) of the Constitution (supra). The judicial power vested in the Court by these provisions do not extend to the determination of matters concerning non-existent legal rights or non-justiciable rights or political issues.
​Learned Senior Counsel has also sought refuge in Section 223 of the Constitution (supra) and Section 85(3) of the Electoral Act (supra) which provide that political parties must practice internal democracy in the choice/election of the principal officers of its executive committee or other governing body of the party. However, the law is trite that in the interpretation of the Constitution and statutes generally, the express mention of one thing excludes other things not mentioned. Therefore, where there are specific provisions that cover specific matters, it supersedes general provisions. The doctrine is also that if there is an apparent conflict in a legal instrument between a general provision and a specific provision, the specific provision prevails – generalia specialibus non derogant. See Aguma V INEC (2021) 14 NWLR (Pt. 1796) 278, 325, per Agim, JSC.
​Section 285(14) (a)-(c) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra) are specific provisions enacted to cover instances when matters concerning the processes leading to an election, precisely, pre-election matters, can be placed before a Court of law by an aspirant to an election which is yet to take place. Sections 223 of the Constitution (supra) and Section 85(3) of the Electoral Act (supra) are complementary to these provisions and only serve to strengthen the process. It enjoins political parties to practice internal democracy in the process of electing their leadership. No more. Thereafter, Section 285(14) of the Constitution and Section 87(9) of the Electoral Act state the categories of persons and complaints that can be entertained by a Court. There is no conflict between the provisions. This is the law as it is, and not as it ought to be. Therefore, until the Legislature vested with power to make laws, changes it, the law must be applied by the Courts whose duty is to interpret and not to make law.
Consequently, it is my considered view that, since learned Senior Counsel for the Respondents has stated upfront that the claim before the lower Court is not a pre-election matter covered by Section 285(14) of the 1999 Constitution (supra) and Section 87(9) of the Electoral Act (supra), it is only logical to go the whole hog and boldly take the leap to accept that the Respondents’ claim, not being a pre-election matter, but a dispute in relation to Ward Congresses for Akko Local Government of Gombe State, cannot be adjudicated upon by the lower Court because the subject matter of the claim is non-justiciable. This is more so as (i) the Respondents do not have any personal rights to be chairmen of their political party in the wards in Akko Local Government Area of Gombe State, (ii) they have not stated that their contractual rights have been breached, and (iii) they do not claim damages for any such breach of contract in their Statement of Claim before the lower Court.
That is the law as it is today. No Court of law has jurisdiction to expand the law to include other matters not stated therein. It is obvious from the extensive findings of the trial Court at pages 371-372 of the printed Record that the learned trial Judge was not enamoured by the Appellant/1st Defendant’s reliance on Section 285(14) (a)-(c) of the Constitution (supra) to support his contention that the suit is non-justiciable. The sentiments expressed in the ruling of the learned trial Judge are no doubt noble, idealistic and utopian. However, the law is settled that Courts have no business or jurisdiction to query the vires of a law validly enacted by the Legislature on any ground, be it for undesirability or immorality, since it is the primary duty of the Legislature to make laws as donated to it by Section 4 of the Constitution. It is only where there is latent ambiguity in the words used in framing the provisions of the law that Courts turn elsewhere for assistance – APC V Enugu State Indep. Electoral Commission (2021) LPELR-55337(SC), 36, A-B, per Kekere-Ekun, JSC; PDP V Achado (2012) LPELR-14288(CA) 10, A-C, per Dongban-Mensem, JCA; PDP V CPC (2011) LPELR-2909(SC) 31-32, F-B, per Fabiyi, JSC INEC V Nyako (2011) LPELR-4314(CA) 66, A-D per Garba, JCA (now JSC); IBWA V Imano (Nig.) Ltd (1988) 3 NWLR (Pt. 85) 633; Mobil Oil (Nig) Ltd V Fed. Bd. Of Internal Revenue (1977) 3 SC 53, 74.
As stated by the Supreme Court in Adeyemi-Bero V LSDPC (2012) LPELR-20615(SC) 29, C-E, per his lordship, Peter-Odili, JSC:
“I would like to anchor on what my learned brother, Fabiyi, JSC said in the lead judgment in First Bank of Nigeria Plc V Alhaji Salmanu Maiwada in the Unreported case of this Court in SC.204/2002 of 25th May, 2012. He stated:
“I agree that a Judge should be firm and pungent in the interpretation of the law but such should be short of a Judge being a legislator.” (Emphasis supplied)
Also, in Amaechi V INEC (2008) 5 NWLR (Pt. 1080) 227, 437, the law was stated succinctly thus:
“The fundamental duty of the Court is to expound the law and not to expand it. It must decide what the law is and not what it should be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meanings, no more. And although the Judge must always have a resort to the intention of the legislators, that intention can only be found in the words used to frame the provisions and nowhere else.” (Emphasis supplied)
Finally, on this, in Tanko V State (2009) LPELR-3136(SC) 33-38, E-F, his lordship, Tobi, JSC held:
“The function and role of the Court is to interpret a statute in the light of the language used. A Court of law cannot go beyond the language used in a statute to examine the possible repercussion of the application of a statute particularly when the language is clear and not stressed to accommodate the possible or likely effect of the statute. The only hire of the Judge is to interpret a statute and not its likely consequences.” (Emphasis supplied)
​It remains to be emphasized that the duty of the Court is to expound the law and not to expand the law, to interpret the law and not to re-make it. Its duty in the construction of the Constitution or a statute is not to read into the law that which does not exist; but to primarily expose the manifest intention of the legislature. Where the language used in the statute is clear and unambiguous, the duty of the Court is limited to accord them their ordinary meaning. See APC V Moses (supra).
​In the instant case, the learned trial Judge failed to do so. Section 285(14) of the Constitution (supra) and Section 87(9) of the Electoral Act (supra) expressly preclude the presentation of complaints of the nature of the claim of the Respondents arising from Ward, Local Government and State Congresses of political parties, which are outside the definition and purview of pre-election matters. The learned trial Judge is not entitled to close his eyes to the specific, clear and unambiguous constitutional and statutory provisions limiting the jurisdiction of the Court in political matters to pre-election matters as defined and provided for in Section 285(14) of the Constitution and Section 87(9) of the Electoral Act provisions because of his righteous disdain and/or disgust for what he considers the rather unsavoury practices of political parties, such as arbitrariness and gross violation of the party’s Constitution and Guidelines. This is not enough to warrant the circumvention of the express letters of the law. The Court is not an appellate body set up by the political party under its Constitution to hear appeals from its unsuccessful or aggrieved members in the exercise of nomination and running elections into the national executive of the party – Abdulkadir V Mamman (2003) LPELR-10287(CA). Thus, the conclusion reached by the learned trial Judge in assuming jurisdiction over the claim before the lower Court is liable to be set aside. See Umar V FRN (2018) LPELR-46336(SC) 8, B-F; Isah V State (2017) LPELR-43472(SC) 7, C-F; Thomas V Olufosoye (1986) LPELR-3237(SC).
If a Court is not competent to entertain a matter or a claim placed before it, it is a sheer waste of time for the Court to embark on the hearing and determination of the claim. There is no justice in exercising jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so –Oloba V Akereja (1988) 3 NWLR (Pt. 84) 508, 520, per Obaseki, JSC.
​Thus, for the Respondents to insist and persist on this path may lead to standing the law on its head. It may also amount to playing the Ostrich, especially in view of the recent pronouncements by the ultimate Court of the land interpreting the relevant provisions of the law, by which Courts are bound. Thus, the Respondents may wish to explore other avenues within the confines of their political party to resolve their internal and/or domestic disputes without involving Courts of law, and risk getting them entangled and/or embroiled in what essentially, is a political matter rather than a legal concern.
​From all I have said, I find that the action of the Respondents in the suit before the lower is non-justiciable as it is not within the province of a Court to select for a political party the manner or mode in which it chooses to select candidates for its leadership in its Ward, Local Government and State Congresses. Therefore, in resolving issues one and two, I agree with learned Senior Counsel for the Appellant that the Respondents, who were contenders for the office of chairmen in the Ward Congresses scheduled to elect officers into the State Executive of the party (Appellant) in Gombe State, and not aspirants in a primary election into public office, cannot invoke the limited jurisdiction vested in the lower Court by virtue of Sections 285(14) of the 1999 Constitution (as amended) and Section 87(9) of the Electoral Act, 2010 (as amended). The extant law precludes them from ventilating such complaints in Court even in the peculiar circumstances of this case where their complaint is that their rights and personal interests were breached by the failure to conduct ward congresses.

I also hold that Sections 6(6) (a) & (b), 223 & 251 (q) of the Constitution, taken in conjunction with Section 85(3) of the Electoral Act, do not vest jurisdiction in the lower Court to hear the suit; and also do not clothe the Respondents with locus standi to approach the Court with their claim which arose from the conduct of ward congresses in Akko Local Government Area. I do so hold.

​Following on the heels of the above findings, I find that, since the claim of the Respondents is non-justiciable and therefore not proper for judicial determination, there can be no valid cause of action for the lower Court to look into. By the same token, the Respondents were not clothed with the requisite locus standi or legal standing to approach the lower Court to enforce rights that were non-existent, and therefore, the case is academic. Based on all the above findings, I therefore resolve issues one, two, three, four and five in favour of the Appellant and against the Respondents.
Finally, in respect of issue six, since this is an appeal challenging the Ruling of the lower Court which held that the action in Suit No. FHC/GM/CS/3/2021 is justiciable; and not an appeal against the decision of the lower Court striking out Suit No. in FHC/GM/CS/4/2021 for not disclosing a cause of action; and also, since there is a separate Appeal in respect of Suit No. FHC/GM/CS/5/2021, I decline the invitation to make any findings on the portions of the Consolidated and Composite Ruling of the lower Court wherein it delivered different findings in those other cases vis-à-vis this Appeal. The facts of those cases are not before this Court in the instant Appeal. It would therefore be presumptuous of this Court to pronounce on the propriety or otherwise of the findings of the lower Court in respect of the two other suits which are not directly in issue in this Appeal, notwithstanding that a consolidated ruling was delivered. This is because the lower Court addressed the peculiarities in each of the three cases before it. To do otherwise would be to delve into and render a decision on matters that have not been placed before this Court in the instant appeal.

In the final result, having resolved issues one to five in favour of the Appellant, I find merit in the appeal. It succeeds and is allowed.

As a result, I hereby set aside the ruling of the Federal High Court Gombe Division in Suit No. FHC/GM/CS/3/2021, delivered on 2nd March 2022, Coram: H.I.O. Oshomah, J.

In its stead, I uphold the preliminary objection of the Appellant to the hearing of Suit No. FHC/GM/CS/3/2021.

Accordingly, it is hereby ORDERED that the claim of the 1st to 9th Respondents in Suit No. FHC/GM/CS/3/2021 is struck out on the ground that it is non-justiciable pursuant to 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).

​IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered. My learned brother elaborately and exhaustively considered and determined all the issues raised in the appeal creditably. I am in total agreement with the resolution of the first 5 issues in favour of the Appellant. I have nothing useful to add to the erudite reasoning and decision arrived at by my learned brother, JUMMAI HANNATU SANKEY, JCA. I can only, with profound gratitude, adopt same as mine, and to allow the appeal. I allow the appeal for it is meritorious. The ruling of the learned Judge of the Federal High Court delivered on the 2nd day of March, 2022, in Suit No. FHC/GM/CS/3/2021, is hereby set aside by me. I abide by orders made by my learned brother in the lead judgment.

EBIOWEI TOBI, J.C.A.: My lord, J. H. Sankey, JCA afforded me the opportunity to read in draft, the lead judgment just delivered. In the comprehensive lead judgment, my lord rightly in my view allowed the appeal. I agree with the reasoning and the conclusion reached therein. I will however, wish to add a word or two on the subject of intra-party dispute and what is the position of the law particularly judicial authorities on the matter. The main issue in this appeal in my view based on the concession of both parties is; whether the lower Court was right in assuming jurisdiction over a purely intra-party dispute. My lord has ably relayed the fact of the case leading to this appeal. The 1st-9th Respondents are members of the Appellant party. Notice was given for conduct of the wards Congresses of the Appellant. They indicated interest in occupying the chairmanship seats in the various Wards Congresses in Akko Local Government Area of Gombe State. They put their interest into action by paying for the Expression of Interest and Nomination form. The Appellant however refused to give them the form or conduct election in a democratic manner into the Ward Congress but rather through consensus got officers to fill the position the 1st–9th Respondents wish to contest for. The 1st–9th Respondents case is that the action of the Appellant offends the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act and the Constitution and Guidelines of the Appellant party. The 1st – 9th Respondents’ position is that the facts of this case falls within the recognized exception to the general rule that Courts has no jurisdiction to entertain intra party dispute. The Appellant are of the firm view that the dispute which the 1st – 9th Respondents have brought before the Court being an intra party matter is not justiciable. The 1st – 9th Respondents on the other hand are vehement on the point that if the complaint of the aggrieved person is a violation of the Constitution, the Electoral Act and the Constitution and guidelines of the party, a Court has jurisdiction to entertain the action as such action is justiciable. The general position of the law which even the 1st – 9th Respondents’ counsel, the learned silk is not disputing is that Courts in Nigeria have no jurisdiction to entertain intra party dispute which should be disputes left to the exclusive preserve for the party to resolve without involving the Court. This general principle is understandable so that the Courts are not flooded with internal family matter. The Supreme Court in APC vs Moses a case referred to by both senior counsel to the parties make this point very clear. Let us hear what Augie, JSC had to say on this:
“There has to be a point at which political parties will leave the Court out of their domestic wrangles or internal leadership tussles. To widen the net and allow the Court to be seen as an integral part of the political struggle for power, is not in the interest of anyone….a political party is supreme over its own affairs, and a Court of law has no jurisdiction to question the exercise of its discretion, one way or the other.”
Similarly, in Ufomba vs INEC & Ors (2017) LPELR-42079 (SC) the Supreme Court per Sanusi, JSC held as follows:
“…. what he ventilated merely relates to nomination of members or leaders of the party. The issue now is, are claims against the nomination of members or leaders of the political party justifiable? My simple answer to that question is a capital “NO”. The law is trite that Court’s jurisdiction is ousted in matters dealing with internal affairs or resolution of a political party regarding nomination or leadership of that political party as in this instant case….
There is no gainsaying and it is even settled law, that power or right to sponsor or nominate a candidate for an election is purely a domestic affair of the political party. This also presupposes that issue of leadership and/or membership of a party is an internal or domestic affair of a party. It is within the political party’s jurisdiction and is indeed “No Go area” for Courts, as they lack jurisdiction to delve into such affair or matters. The Court’s jurisdiction is ousted because such subject matter is non-justiciable. See PDP v Sylva (2012)13 NWLR (Pt.1316) 85.”
In the same case, Ogunbiyi, JSC held:
“By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership disputes in the 2nd respondent. This, clearly and as rightly submitted by the learned counsel for the 2nd and 4th respondents, is not an exception to Onuoha V. Okafor (1983) 2 SCNLR 244. Also in the locus classicus case of Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi JSC, in his lead judgment said:-
”The Courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred under Section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the Court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the Constitution and the Party guidelines.”
In his contribution to Emenike V. PDP’s case supra, Rhodes-Vivour, JSC made it very clear that limited jurisdiction would be invoked if primaries were not conducted in accordance with “Party’s Constitution and Guidelines.
As rightly submitted on behalf of the 2nd and 4th respondents, to consider whether election has been conducted in accordance with Party’s Constitution and Electoral Guidelines, the Courts cannot be invited to decide, who the leader of such a party is, as that would be beyond the jurisdiction of such Courts in the light of Onuoha V. Okafor (1983) 2 SCNLR 244.
Also, in the case of PDP V. Sylva supra this Court, restated clearly that the right to nominate or sponsor a candidate for an elective position is a domestic right of a political party. It follows therefore that the issues of leadership and membership are internal affairs of a political party. In other words, it is not open for a Court to inquire into, the membership/leadership of a political party….
On the foregoing conclusion, the lower Court was very clear in its pronouncements at pages 710 and 711 of Volume 2 of the record of Appeal which were reproduced earlier in the course of this judgment. The finding by the lower Court, cannot in the circumstance be faulted. The matter at hand is “an intra-party affair.” The concept of the phrase was defined by this Court in PDP V. K.S.I.E.C. (2006) 3 NWLR (Pt. 968) 565 at 577 as-
“A dispute between members of the party inter se, or between a member on the one hand and the party on the other.”
Also in PDP V. Sylva (supra) at page 146 this Court held thus:-
“Consequently, 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.”
​To however forestall abuse of power by the leadership of political parties, the apex Court has however stated certain situations that can be exception to this general principle. This was stated and brought out by his lordship Agim, JSC in the same case of A.P.C. vs Moses (supra) in these words:
“The general law is that a political party, being a voluntary organization or association, disputes over its internal affairs are non-justiciable and a Court has no jurisdiction to entertain them unless such power is expressly conferred on it by statute or the commission of crime is imputed or there is a claim for damages for breach of the personal contractually right of a person. As held by the Supreme Court in the leading case of Onuoha vs Okafor (1983) 2 SCNLR 244 at 254 ‘the practice of the Court is not to run associations (corporations and unincorporated associations) for the members. It leaves the members to run their association’
The Court further held per Aniagolu, JSC thus:
‘…the issue raised on whether the various internal committee proceedings of the party were regularly conducted and whether there was lapse in the observance of the rules of natural justice are issues which the Court will go into after it has decided that the matter is one in respect of which it will exercise jurisdiction. In my view, this is not a matter which the High Court ought to have assumed jurisdiction. It would have been different if the appellant has sued for a breach of contract between himself and the party, claiming damages for breach of contract”

Having stated the above, I am in full agreement with my lord, J. H. Sankey, JCA that the 1st–9th Respondents were not able to show that they fall within the exception to warrant the lower Court assume jurisdiction over the intra-party dispute of the Appellant.

I wish to deal with the submission of the learned silk’s for the 1st–9th Respondents that the lower Court was right in assuming jurisdiction in the light of the provisions of Sections 6 (6)(a), 223 and 251 of the 1999 Constitution of the Federal Republic of Nigeria, and Section 85 (3) of the Electoral Act. A little excursion into the difference between judicial powers and jurisdiction will do no harm. It is the submission of Counsel that once there is a complaint of non-compliance with the Constitution of the Federal Republic of Nigeria, the Electoral Act, the Party’s Constitution and Guidelines, the jurisdiction of the Court cannot be ousted. In other words, in such a situation, a Court can adjudicate in such matters. The lower Court agreed with this position referring to the constitutional provisions of Sections 6 (6)(a), 223 and 251 of the 1999 Constitution of the Federal Republic of Nigeria and Section 85(3) of the Electoral Act.

As clearly stated by the lower Court which represent the true position of the law, jurisdiction is very fundamental to judicial proceedings. It is referred to as the life wire of a Court. A Court without jurisdiction should not attempt to go into a matter because the whole proceedings and the decision reached will be a nullity. See Umanah v. Attah NSCQR Vol 27 2005 P. 706; Chief of Air Staff vs Iyen (2005) LPELR-3167(CA); Dangana & Anor v. Usman & Ors (2012) LPELR-25012(SC).
​Jurisdiction to a Court is like water to a fish and breath to a human being. Just like fish cannot survive outside water and a human being cannot survive without breath, so a Court without jurisdiction cannot adjudicate on a matter before it. A Court without jurisdiction is like a king without a kingdom. A Court must not lobby for jurisdiction and at the same time a Court must not be intimidated to decline jurisdiction when the law confers same on it. Jurisdiction is conferred on a Court by law and not by the consent of parties and when determining whether a Court has jurisdiction, the relevant document to consider is the statement of claim. See Azubuogu v. Oranezi & Ors (2017) LPELR-42669(SC); Petroleum (Special) Trust Fund vs Fidelity Bank & Ors (2021) LPELR-56625 (SC); Agbule v. Warri Refinery & Petrochemical Co Ltd (2013) 6 NWLR (pt 1305) 318.

I must however hasten to add that jurisdiction is different from judicial powers. I am compelled to say this because sometimes both are used interchangeably and misunderstood by parties. There is a difference between judicial powers and jurisdiction. They are not one and the same thing. Judicial powers which is a more general term refers to the powers conferred on a Court by law to adjudicate with the aim of promoting justice in settling dispute between parties. This is a general power conferred on Courts by the Constitution. Jurisdiction on the other hand is the specific power on a particular Court to adjudicate on a specific subject matter. For instance, while Section 6(6) of the 1999 Constitution confers judicial power on the Courts, Section 251 of the same Constitution streamlines the jurisdiction of the Federal High Court. The implication of this is that a Court with judicial powers does not necessarily have the jurisdiction to try a matter before it. In Babalola v. Obaoku-ote & anor (2004) LPELR-5259 (CA) this Court held:
“It is also pertinent to define judicial power and jurisdiction. The judicial powers of the Court are vested in the Courts according to the Constitution – Section 6 of the 1979 Constitution and also Section 6 of the 1999 Constitution. Since it is fundamental that the rights of parties in litigation are determined on the substantive law in force at the time of the act in question – the 1979 Constitution shall be the operative statute for the purpose of this appeal – as the Constitution in operation as the law in force at the time of the complaint of the appellant Omisade v. Akande (1987) 2 NWLR (Pt. 55) 158; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) pg. 539, Bank of Baroda v. Iyalabani Ltd. (1998) 2 NWLR (Pt. 539) pg. 600. Terms judicial power and jurisdiction are frequently used interchangeably – there is a clear distinction between the two. “Jurisdiction is defined as the power of the Court to hear and determine the subject-matter in controversy between the parties.” In other words – jurisdiction is the authority of the Courts to exercise judicial powers which is the totality of powers a Court exercises when it assumes jurisdiction to hear a case. You must first have jurisdiction before you can proceed to exercise power. Judicial power is a very wide expression apart from its meaning as the power which every sovereign authority must possess to enable it settle and decide controversies between its subjects and itself, it also co-exist with the power of the State to administer public justice and again with the power of the State to make laws and execute them as well. Bronik Motors v. Wema Bank (1983) 1 SCNLR 296.”
Similarly, in Abacha v. FRN (2014) LPELR-22014(SC), the apex Court held:
“Section 6(1) of the 1999 Constitution has vested the judicial powers in the Court to which the section relates. Judicial powers have been interpreted in BRONIK MOTORS & ANOR v. WEMA BANK LTD (1983) 14 NSCC 26 at 253 to mean the power which every sovereign authority must of necessity possess to enable it settle and decide controversies between its subjects. Judicial power is co-extensive with the power of the state to make laws and execute them.
Jurisdiction in contrast to judicial power is the authority or legal weapon which a Court must possess to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision see ENYADIKE v. OMEHIA & 4 ORS (2010) 11 NWLR (pt.1204) 92 at 112.”

The Learned Senior Counsel to the 1st–9th Respondents’ has referred to certain provisions of the 1999 Constitution to submit that the lower Court had jurisdiction to determine the intra-party dispute which the facts culminating to this appeals buttresses. The Sections as stated above are Sections 6 (6)(a), 223 and 251 of the 1999 Constitution of the Federal Republic of Nigeria. I will now consider whether these provisions confer jurisdiction on the Federal High Court to determine intra-party dispute. Section 6(6)(a) of the 1999 Constitution is a provision that confers judicial powers on the Court and has nothing to do with jurisdiction. Section 4 confers legislative powers on the Legislative arm of government, Section 5 confers Executive powers on the Executive arm, while Section 6 confers judicial powers on the judicial arm. This is a general judicial powers conferred on the Courts of record in Nigeria and does not provide for the jurisdiction of the Court. I agree with Prof Mamman Lawan’s (SAN) submission to the effect that Section 251 of the 1999 Constitution which confers jurisdiction on the Federal High Court did not provide that the Federal High Court has jurisdiction in intra-party dispute. I had mentioned above that jurisdiction is conferred by statute, Section 251 of the 1999 Constitution does not confer jurisdiction on the Federal High Court to interfere or settle intra-party dispute.
There is one more constitutional provision to determine whether jurisdiction is conferred on the lower Court in the matter before it. This is the provision of Section 223 of the Constitution which provides thus:
“ 223. (1). The constitution and rules of a political party shall-
(a) provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and
(b) ensure that the members of the executive committee or other governing body of the political party reflect the Federal Character of Nigeria.
(2) For the purposes of this section –
(a) the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years; and
(b) the members of the executive committee or other governing body of the political character of Nigeria only if the members thereof belong to different states not being less in number than two-thirds of all the states of the Federation and the Federal Capital Territory, Abuja”
This provision has no relationship with the matter before the lower Court as it does not confer jurisdiction on the lower Court in intra-party dispute except that it states that the constitution of the party should make provision for periodic election on democratic basis of the principle officers and members of the Executive Committee or other governing body of the political party. This provision has nothing to do with Ward or Local Government Area Congresses as that cannot come within the definition of principle officers and members of the Executive Committee or other governing body of Political Parties. This has to do generally with the main organs of the Political Party at the Federal level hence while defining the scope of Section 223 (1)(b) of the 1999 Constitution, the Subsection in 2(b) talks about federal character in relation to state. The lower Court in my view is therefore wrong in using those provisions to assume jurisdiction in an intra-party dispute.
The provision in the Electoral Act which the lower Court used to confer jurisdiction on in the intra-party dispute before it is Section 85(3) of the Electoral Act. This Section again does not make reference to congresses but focus is again on election to Executive Committee, other governing bodies or nominated candidates for any elective office specified under the Act. This does not include Ward and Local Government Congresses. The lower Court relied on provisions of the Constitution and Electoral Act which do not confer jurisdiction on it in intra-party disputes. I agree entirely with the Appellant’s Counsel that the constitutional provision and the provision of the Electoral Act referred to by the lower Court and senior counsel to the 1st–9th Respondents do not confer jurisdiction on the lower Court on intra-party matters. For the avoidance of doubt, there is nothing in the provision of both the Constitution and the Electoral Act which confers jurisdiction on intra-party matters on any Court in Nigeria. Judicial powers should therefore not be confused with jurisdiction.

Before I end my contribution, let me say this, decision such as this may be misconstrued by leadership of political parties to mean endorsing their excesses but that is not the intention of this judgment and indeed the judgment of any Court. Their excesses have made some Judges assume jurisdiction over intra-party disputes even when the exception has not been proved before the Court. I can understand and appreciate that but the law as stated by the Supreme Court remains the law. The Court exists to do justice and promote justice in its judgment. The law is made to regulate the action of people operating under same to ensure compliance. No Court will endorse arbitrary use of power hence in balancing the general principle that intra-parties are not justiciable, the apex Court has stated above recognizes some exceptions. They were created to ensure that there is no abuse of power by any person in authority at whatever level. In view of the legal position, it behooves on Political Parties to ensure that people of integrity and high moral content are giving leadership position in them as a misuse of power by a party leader can cost the party so much damage. When leaders of party lack integrity and high moral content and thereby arbitrarily use the power given to them, it promotes ‘god fatherism’ in politics. Persons without integrity or values have no business in politics. A decision of this nature may just be a costly price to pay for lack of internal democracy and for allowing people without conscience to be in leadership of political parties. Sadly, the 1st–9th Respondents who are complaining now, if they were the beneficiaries of the action of the Appellant, it would have been celebration time for them. Now, they are at the receiving end and they are in Court. This rat race will stop when everyone in any position of leadership or followership comes to term with the fact that we were all created by God and He gives power and position to people to use same justly for the benefit of man and to His glory. Political parties should promote internal democracy when they have problem within themselves and their members. They should sort it out amicably leaving out the Court. The hands of the Courts in Nigeria is full and should not be further over burdened with internal political disputes which many a times after the decision of Court they disregard for political solution. My humble counsel, instead of coming to waste precious time of the Court in intra-party matters before going to find political solution, party members should go straight to find political solutions as a family will do without involving the Court.

​For the above reasons and much more for the fuller reasons in the lead judgment of my learned brother J. H. Sankey, JCA I also allow the appeal.

Appearances:

Prof. Mamman Lawan, SAN, with him, Ibrahim Aliyu Nassarawa, Esq. and Adekunle Taiye Falola, Esq. For Appellant(s)

Paul Erokoro, SAN, with him, S.M. Kumo Esq., Fatima T. Abdullahi Esq. and Gift Obetin, Esq. – for 1st to 9th Respondents
J.W. Nimfas, Esq. – for 10th Respondent. For Respondent(s)