APC v. OKPO & ORS (2020)

APC v. OKPO & ORS

(2020)LCN/14145(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 23, 2020

CA/A/19/2019

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS APPELANT(S)

And

MR SYLVESTER OKPO (APC Cross River South Senatorial Vice-Chairman) 2. MRS EUGENIA TAKON (For APC Cross River Ex Officio 1) 3. MR CHARLES ASIM (APC Cross River; State Youth Leader) (Suing For Themselves And On Behalf Of All The Executives And Delegates At The Cross River State APC Ward, Local Government & State Congresses Held On The 5th, 12th & 19th Of May 2018) RESPONDENT(S)

RATIO

JURISDICTION OF THE COURT TO ADJUDICATE ON A MATTER BEFORE IT

It is the duty of the Court to ensure its own competence and the competence of any matter brought to it for adjudication. One of the elements constituting the competence of a matter before a Court and ipso facto the competence of that Court to hear it is that “the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.” See Agbiti v. the Nigerian Navy (supra), Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348. The defect in the appeal which prevents the Court from exercising its jurisdiction to hear and determine it is the fact that the reasons for the judgment were given outside the 60 days in S.285(7) of the Constitution.“ In Nobis Elendu v. INEC & Ors (supra) it held that “A little more needs be said on this issue of jurisdiction of the trial High Court which flows up to this point of Apex Court. In that regard it should be stated emphatically even at the risk of stating and restating an over flogged trite issue that jurisdiction is a matter that cannot be overlooked and being so pivotal, crucial, critical and fundamental can be raised suo motu though with the rider that the parties especially the one who would be adversely affected by the issue must be called upon to address the Court on it. Then necessary to be brought out is that because of the fundamental nature of the issue of jurisdiction, it can be raised in any form or manner or even orally, the only important point is that the parties be given an opportunity to address the Court on the issue so that the right to fair hearing is not breached and a miscarriage of justice thereby occasioned. See Galadima v. Tambai(2000) 11 NWLR (Pt. 677) 1 at 15, Ames Electrical Co. Ltd v. F.A.A.N (2002) 1 NWLR (Pt. 748) 35, Amale v. Sokoto Local Government (2012) 5 NWLR (Pt. 1291) 181 at 207;PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205 at 255 – 256. What I am trying to say is that there is no pigeon hole compliance with in the process of either raising the issue of jurisdiction suo motu or asking the parties or counsel on their behalf to address the Court on it or how the address is presented. In this case the appellant posits that the Court raised the issue of jurisdiction suo motu and did not ask nor obtain the address of the parties on the issue before determining that there was no jurisdiction. This position of the appellant the respondent disagrees with on the ground that when the Court raised the issue of Section 141 of the Electoral Act, 2010 (as amended) what was brought out by counsel was sufficient to meet the requirement of an address on the issue of jurisdiction.” In Adegbite & Anor v. Amosu (supra) it held that “In any case, since the documents clearly raise the issue of jurisdiction, the issue sought to be raised cannot be defeated by rules of Court. This is because jurisdiction is radical in nature and since it is at the foundation of adjudication, it cannot be defeated by the provisions of rules of Court. Akegbejo & 3 Ors v. Dr. D.O Ataga & 3 Ors (1998) 1 NWLR (Pt. 534) 459 at 469. Because it is the foundation of any adjudication by the Court, there is no special format for raising it. Akegbejo & 3 Ors v. Dr D. O Ataga & 3 Ors. The Court will not endure that a rule meant to facilitate administration of justice will work injustice.“
This Court is bound by the principle of stare decisis to follow these decisions of the Supreme Court on the point.
Guided by the above restatements of the Supreme Court, this Court would consider this issue even though it is not derived from any ground of this appeal by virtue of Order 7 Rule 5 of the Court of Appeal Rules 2016 which provides that- “5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
The fundamental importance of the jurisdiction of Court to adjudicate on a dispute before it makes the determination of the issue imperative and unavoidable, once it is raised in any manner and at any stage of a proceeding, even for the first time in an appeal in this Court or the Supreme Court. If a Court lacks the jurisdiction to entertain and determine a case, its adjudication and determination of such a dispute would be a nullity even if the lack of jurisdiction is raised and determined or not. So once it is raised, it must be determined, and noncompliance with the rules of Court in raising it cannot prevent a Court from considering and determining it in the interest of substantial justice and to avoid a situation where a decision given without jurisdiction continues to subsist to the disrepute of the Court and due process of law. PER AGIM, J.C.A.

DETERMINATION OF THE JURISDICTION OF A COURT

In OGUNDE VS. GATEWAY TRANSIT LTD (2010) 8 NWLR PT 11196 PAGE 207. The Court of Appeal (Ibadan Division) held thus:
“To determine the competence of a Court, the subject matter of a case must come within the Court’s jurisdiction. The Court’s territorial jurisdiction and the composition of the Court are other essential aspects of jurisdiction. A Court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the Federation. Also causes of action arising from within a State are justiceable by the Court in the same State.”
From facts of this case, as contained in the Originating Summons and the Affidavit in support thereof, the compliant of the claimant is that the defendant act was completely against its constitution and guidelines and the National Working Committee at the National Headquarters Abuja have no power to truncate the tenure of the party executive of a state validly conducted, sworn in and also participated in the National Congress as State Executive members of Cross Rivers, by publishing on dailies News Papers recourse to Court of law to justified same.
In the circumstance of this case, it is my view and I so hold that from the above facts as contained in the Originating summons and affidavit in support, this Court has jurisdiction to adjudicate on this suit. This has succeeded.” PER AGIM, J.C.A.

JURISDICTION OF THE COURT TO ENTERTAIN POLITICAL CONFLICTS

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 a crime is imputed or there is a claim for damages for breach of the personal contractual right of a person. As held by the Supreme Court in the leading case of Onuoha v. 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 issues 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 had sued for a breach of contract between himself and the party, claiming damages for breach of contract.” See also Labour Party & Ors v. Oyatoro (2016) LPELR – 40135 (CA).
In Amaechi v. INEC (2007) 9 NWLR (Pt. 1040) 504 this Court held that the expulsion of a member of a political party as a disciplinary measure remains an intra-party affair and the Court cannot inquire into it. In the sister case of Ochala & Ors v. John & Ors (2019) LPELR – 47001 (CA), this Court held that this dispute over the election of members of the executive committee of the Cross River State Chapter of the appellant by the state congress of 19-5-2018 cannot be determined by a Court.
In Abdulkadir & Anor v. Mamman & Ors (2003) LPELR – 10287 (CA) this Court held concerning questions and reliefs similar to the ones in our present case , thusly “There is no doubt therefore that the issue in this case concerns the control and management of the political party- the Alliance for Democracy. This is conceded by all the parties. The question then becomes narrowed down to this- whether the dispute is an intra-party dispute or it is a dispute concerning the proprietary rights or contractual rights of some of the members of the party vis-a-vis the party itself. The practice of the Court is not to run associations (corporations and unincorporated associations) for members. The brief of 1st, 2nd and 3rd respondents put the matter very succinctly at p. 11 of the brief when it states that the position of the law is that disputes which arise must be resolved by a majority decision of the members. This is the so called majority rule otherwise known as the rule in Foss V Harbottle (1843) 2 Hare 461, the decision in which was first articulated…. Furthermore, looking through the statement of claim, I am unable to find any allegation of the infringement of any personal rights of the plaintiffs or any claim for damages therefor. It would be seen from the statement of claim of plaintiffs that the primary aim is to obtain an order of the Court which would compel the members of Alliance for Democracy to elect plaintiffs as national officers of the party. The Court, however, is not an appellate body set up by the party under its Constitution to hear appeals from unsuccessful candidates in the exercise of nomination and running for elections into the national executive of the party.”
The principle underlying this law is that voluntary associations or organizations are internally run by majority of the members and that therefore disputes which arise within them must be resolved by the majority decision of their members. This principle commonly known as the rule in Foss v. Harbottle was restated by the Supreme Court in Abubakri & Ors v. Smith & Ors(1973) 6 SC 31 by adopting the statement of Mellish L.J in McDonghall v. Gardiner (1875) ch. D 13 at 15 – 26 thus- “in my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes. Is it not better that the rule should be adhered to that if it is a thing which the majority are the masters of, the majority in substance shall be entitled to have their will followed? If it is a matter of that nature, it only comes to this, that the majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly; and that, as I understand it, is what has been decided by the cases of Mozley V Alston (1) and Foss V Harbottle (2). In my opinion that this is the rule that is to be maintained. Of course, if the majority are abusing their powers, and are depriving the minority of their rights, that is an entirely different thing, and there the minority are entitled to come before this Court to maintain their rights, but if what is complained of is simply that something which the majority are entitled to do has been done or undone irregularly, then I think it is quite right that nobody should have a right to set that aside or to institute a suit in Chancery about it, except the company itself.” PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/19/2019 was commenced on 13-12-2018 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory in Suit No. FCT/HC/BW/106/2018 delivered on 13-12-2018 by O.A. Musa J. The notice of appeal contains 9 grounds for the appeal.

The parties herein have filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief and response to preliminary objection.

The appellant’s brief raised the following issues for determination-
1. Whether the trial Court was right to grant reliefs not sought by the respondents and against the National Working Committee of the Appellant and Independent National Electoral Commission who were not parties in the case. (Distilled from Ground 1 and 2)
2. Whether the trial Court was right to assume jurisdiction over issues of validity of election of political party executives and delegates, their tenure of office, and removal from office; all of which constitute domestic or internal affairs

of the All Progressives Congress (APC). (Distilled from Grounds 4 and 7)
3. Whether the trial Court (High Court of the Federal Capital Territory) is vested with territorial jurisdiction over the cause of action which arose from and was completed in Cross River State. (Distilled from Ground 4)
4. Whether the trial Court was right to have granted all the reliefs sought by the respondents without considering and resolving the substantive issues raised in the Originating summons. (Distilled From Ground 5)
5. Whether the trial Judge ought not to have declined jurisdiction to hear this suit in that the Originating Summons was not properly sealed by the Registrar as required by the Rules of the Court. (Distilled from Ground 8)

The respondent’s brief adopted and answered the issues for determination in the appellant’s brief.

The respondent filed a notice of preliminary objection to this appeal on the grounds that-
1. Grounds 1, 2, 4, 7 and 8 did not arise from the judgment of the trial Court herein appealed against and are therefore liable to be struck out for incompetence.
2. Issues a, b, c and e distilled from the

above grounds and the arguments canvassed in support relate to matters that were never decided by the lower Court in the judgment founding this appeal; and no leave of Court to argue same as fresh points was sought and obtained as required by law.
3. Issues b and c in the appellant’s brief of argument were distilled from one ground of appeal (Ground 4 of the Notice of Appeal).
4. Issue c in the appellant’s brief of argument was neither distilled from ground 4 nor from any other grounds contained in the Notice of Appeal.
5. Particulars of Ground 5 of Appellant’s Notice of appeal do not elucidate and advance the reasons for the complaint in Ground 5.
6. Issue d in the Appellant’s Brief of Argument did not arise from Ground 5 of the Notice of Appeal
7. Particulars of Grounds 1, 2, 4, 5, 7 and 8 of the appellant’s Notice of appeal are liable to be struck out for incompetence, having not correlated with nor supported the compliant in the respective grounds.
8. Grounds 3, 6 and Omnibus ground are abandoned and ought to be struck out, being that no issues was distilled from them and no arguments proffered in

respect to them.
9. It is our humble position that one issue can be distilled from the 8 (Eight) grounds to determine our preliminary objection which is brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016. The issue is set out hereunder.

The respondents argued the preliminary objection in pages 5 to 14 of their brief. The appellant replied to same in its reply brief.

Let me consider the preliminary objection first before I delve into the merits of the appeal if need be.

I have carefully read and considered the arguments of all sides on the grounds of this objection.
It is glaring that grounds 1, 2, 4 and 7 complain against what was decided by the trial Court. Grounds 1 and 2 complain against the part of the judgment of the trial Court that adjudged that “the national working committee and Independent National Electoral Commission to receive all candidates emerged from Etim Godwin John led state executive for the 2019 elections.” Ground 3 complains against the part of the judgment of the trial Court relying on the Constitution of the appellant, when the same was not in evidence before it.

Grounds 4 and 7 complain against the part of the judgment of the trial Court that held that “from the originating summons and affidavit evidence before me, the claimant allegations is that the defendant and its organs breached the constitution of the party and its guidelines. Consequently, their right has been breached and denied hence this suit. When a political party is alleged to have contravened its Constitution which root is in the 1999 Constitution such a breach is no longer an internal affair of such a political party.
In view of the above, I hold that from the plaintiff’s claim and Exhibits attached, I find that this Court has jurisdiction to entertain this action and the action is not about the internal administration of a political party simpliciter but a breach and abuse of right of members of the Plaintiff.“

I agree with the submission of Learned Counsel for the respondent that the complain in ground 8 of this appeal is not against what the trial Court decided in its judgment. The issues of the originating Summons not being sealed as required by Order 2 Rule 3(4) of the High Court of FCT Civil Procedure Rules 2018 and being affixed

with an expired solicitor’s seal was not raised during the trial proceedings and therefore was not considered and determined in the judgment of the trial Court. It is now raised for the first time in this appeal by way of the complain in ground 8 without the leave of Court to raise and argue it in this appeal as a fresh issue. These errors are mere procedural irregularities that cannot render the summons void by virtue of the decision of the Supreme Court in Famfa Oil Ltd V AGF & Anor (2003) 9-10 SC 31 that the failure of the Judge or Registrar of the trial Court to sign or seal the Originating Summons as required by Rules of Court, is a mere procedural irregularity that cannot render the summons incompetent and void and the decisions of the Supreme Court inMega Progressive Peoples Party V INEC & Ors (No.1) (2015) 18 NWLR (Pt.1491) 207, Yaki V Bagudu & Ors (2015) ALL FWLR (Pt.810) 1026 and Nyesom V Peterside (2016) LPELR- 40036 (SC), that failure to affix the legal practitioners seal on a Court process renders it voidable and not void and remains valid until it is set aside.
Being procedural irregularities, the appellant who did not raise them

at the trial Court upon being served with the originating summons and proceeded to take several steps in the proceedings, filing several processes including filing a counter affidavit to oppose the merit of the suit and filing final written addresses, can no longer raise it at this stage as it has waived his right to do so and consented to the irregular procedure. As the Supreme Court held in Unity Life and Fire Insurance Co Ltd V IBWA Ltd (2001)11 NWLR (Pt.713) 610, where a party to a civil proceeding consented to a procedure at trial which procedure is merely wrong or irregular and not unconstitutional and has not caused injustice to any party, it would be too late to complain on appeal about such wrong procedure simply because the party lost the case in the trial Court.
Being such a fresh issue, it cannot competently be raised and argued on appeal without leave of Court. See Lanre v. State (2019) 3 NWLR (Pt. 1660) 506 at 517, Oseni V Bajulu & Ors (2009) LPELR-2796(SC) and Nwachukwu V The State (2007) 7 SC 1.
Therefore ground 8 of this appeal, issue No. e (5) derived therefrom and the arguments thereunder are incompetent and are hereby struck

out.

Ground 5 of this appeal is inelegantly and clumsily phrased. The complain that is clear from it is that the trial Court erred in law to have granted the declarations asked for by the respondents on the basis that their claim was admitted, when the party constitution on which their claim was based was not in evidence before the trial Court. I think that it exposes an arguable complain. As it is the particulars elucidate the absence of that evidence that they require to prove their claim. I agree with the submission of Learned Counsel for the respondents that issue No. d (4) which the appellant indicate to be derived from ground 5 of the notice of this appeal does not seem to bear any relationship with Ground 5 of this appeal. The said issue No. d reads thusly – “Whether the trial Court was right to have granted all the reliefs sought by the respondents without considering and resolving the substantive issues raised in the Originating summons.“
Ground 5 of this appeal reads thusly-
“The learned trial Judge erred in law when he merely granted the Respondents all their declarative reliefs sought thereby departing

from the settled principle of law restated by the Supreme in NDUUL v. WAYO & ORS (2018) LPELR-45151 (SC) that a Claimant in an action for declarative reliefs is not entitled to the such declarations unless he discharges his burden of proof even where there is admission.
PARTICULARS OF ERROR
i. The Respondents sought the interpretation of provisions of a document that was not before the Court.
ii. The Respondents further sought 7 declarative reliefs which were all granted and 3 Orders all predicated on the supposed interpretation of provisions of a document not before the Court.
iii. The Judgment of the Court is by this error rendered otiose, exploratory, speculative and academic.“
The complain in ground 5 is different from the complain in issue No. D. While the ground complains that the respondents did not prove their claim for declaratory reliefs and that therefore the trial Court was wrong to have granted those reliefs, the complain in issue No. d is that the trial Court was wrong to have granted all the reliefs sought for by the respondents without considering and resolving the substantive issues raised in the Originating

Summons. Ground 5 alleges lack of proof. Issue d alleges lack of fair hearing. Where an issue is said to be derived from a ground of appeal, the subject matter of that issue and that of the ground of appeal from which it is derived must be the same. If they are different, then the issue cannot be validly said to have derived from that ground of appeal.
As it is issue No. d is not derived from ground 5 of this appeal or any other ground. An issue for determination to be competent for consideration must derive from any of the grounds of the appeal. The said issue and the arguments thereunder are hereby struck out. Ground 5 of this appeal is therefore not covered by any of the issues raised for determination. It is accordingly struck out for having been abandoned.
I agree with the submission of Learned Counsel for the respondents that the appellant did not raise any issue for determination in this appeal from grounds 3 and 6 of this appeal and thereby abandoned the said grounds. The said grounds 3 and 6 are hereby struck out.

The submission of Learned Counsel for the respondents that issue No. c (3) is not derived from ground 4 of this appeal

as indicated by the appellant in its brief is correct. Issue No. c (3) raises the issue of the territorial jurisdiction of the trial Court to entertain and determine a matter that arose from Cross River State. Ground 4 of this appeal raised the issue that the claim of right to hold political party offices is not a matter within the purview of S.87(9) of the Electoral Act 2010 as amended and that the trial Court was wrong to have exercised jurisdiction to entertain it. It is obvious that the subject matter of ground 4 of this appeal is different from the subject matter of issue No. c. There is no ground of this appeal that raised the issue of lack of territorial jurisdiction of the suit concerning matters in Cross River State. So issue No. c has no relationship with any of the grounds of this appeal. The appellant has not sought for and obtained the leave of this Court to argue this issue that is not derived from any of the grounds of this appeal as required by Order 7 Rule 4 of the Court of Appeal Rules 2016. As it is, issue No. c and the arguments thereunder offend Order 7 Rule 4 of the Court of Appeal Rules.
Learned Counsel for the respondent has

urged that this issue be discountenanced relying on the many decisions of the Supreme Court and this Court that have restated that an issue raised for determination that is not related to any ground of an appeal is incompetent and valueless. He specifically cited Bogobiri v. State (2017) 18 NWLR (Pt 1597) 247 at 261 (SC) and Eze v. IGP (2017) 4 NWLR (Pt 1554) 44 at 82 – 83.
Learned Counsel for the appellant in reply argued that being an issue of jurisdiction, it can be raised in any manner and at any stage of the proceedings even for the first time in an appeal before this Court or the Supreme Court and that non-compliance with rules of Court cannot prevent it from being considered and determined. For these submissions he cited the Supreme Court decisions in PDP v. Okorocha & Ors (2012) 15 NWLR (Pt 1323) 205 at 240 – 241, Nobis-Elendu v. INEC & Ors (2015) LPELR – 25127 (SC), A.G Kwara State v. Deyemo (2017) 1 NWLR (Pt. 1546) 2010 at 239 – 240, Adegbejo & Ors v. Ataga & Ors (1998) 1 NWLR (Pt 534) 459 at 469 and Adegbite & Anor v. Amosu (2017) All FWLR (Pt 870) 1069 at 1098.
Let me now determine the merits

of the above arguments of both sides.
I find the restatements of the law on the point by the Supreme Court in the above cases cited by Learned Counsel for the appellant very illuminating and instructive. The Supreme Court in PDP v. Okorocha (supra) held that “I am aware of such cases as John v. Black (1985) 4 NWLR (Pt. 90) 539 and Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 to the effect that an appellate Court has no jurisdiction to give judgment outside the grounds of appeal and the oral argument of learned Counsel on both sides. As argued by the learned Silk for the appellant, the issue was not raised by any party but learned Counsel for the parties have been given the opportunity to be heard and were in fact heard on the issue raised suo motu by the Court. I do not accept the agreement of learned Senior Counsel for the appellant that the reasons given on 24/1/2012 do not adversely affect the judgment delivered on 6/1/2012. Learned Counsel for the appellant relied on the latin maxim: ubi jus ibi remedium. Yes, where there is a right the law provides a remedy. What is the appellant’s right and what is his remedy in this case? In my view, his

right is his constitutional right to appeal against the judgment of the lower Court. His remedy is the exercise of that right. The exercise of that right does not guarantee the success of the appeal or even the hearing and determination of the appeal on the merit. The appeal cannot be heard if it is incompetent. Learned Senior Counsel for the Appellant questioned the competence of this Court to raise the issue of non-compliance with the provision of S.285(7) and (8) of the Constitution. Both learned Senior Counsel for the 1st and 2nd set of Respondents argued that the issue raised is a constitutional matter and the Court is competent to raise it provided parties are given the opportunity to be heard. The Court hearing a matter, whether as a Court of first instance or an appellate Court has a duty to ensure that the processes by which a party seeks relief before it comply with the relevant provisions of the applicable law. It may raise an issue suo motu provided that if the issue so raised is one on which the matter will be disposed of, learned Counsel for the parties must be heard on it before decision is taken. A Court of record must jealously guard the

judicial process from being ridiculed or scandalized and for the purpose of achieving a just, equitable and expeditious dispensation of justice. See Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) P. 154. In the quest for justice, the Court can glean through its records and all processes transmitted to it in respect of the appeal to ensure compliance with the law and rules. It would have been an act of disservice to the administration justice if the Court had closed its eye to the defect in the judgment appealed against and proceed to determine the appeal on its merit. This would have been in conflict with other recent decisions of this Court on S.285 of the Constitution and the conflicting judgments would have made the law uncertain. See SC. 141/2011; SC.766/11; SC.267/11; SC.282/2011; SC.356/2011 and SC.35/2011 (Consolidated) which judgment was delivered on 24/2/2012. It is the duty of the Court to ensure its own competence and the competence of any matter brought to it for adjudication. One of the elements constituting the competence of a matter before a Court and ipso facto the competence of that Court to hear it is that “the subject

matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.” See Agbiti v. the Nigerian Navy (supra), Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348. The defect in the appeal which prevents the Court from exercising its jurisdiction to hear and determine it is the fact that the reasons for the judgment were given outside the 60 days in S.285(7) of the Constitution.“ In Nobis Elendu v. INEC & Ors (supra) it held that “A little more needs be said on this issue of jurisdiction of the trial High Court which flows up to this point of Apex Court. In that regard it should be stated emphatically even at the risk of stating and restating an over flogged trite issue that jurisdiction is a matter that cannot be overlooked and being so pivotal, crucial, critical and fundamental can be raised suo motu though with the rider that the parties especially the one who would be adversely affected by the issue must be called upon to address the Court on it. Then necessary to be brought out is that because of the fundamental nature of the issue of jurisdiction, it can be raised

in any form or manner or even orally, the only important point is that the parties be given an opportunity to address the Court on the issue so that the right to fair hearing is not breached and a miscarriage of justice thereby occasioned. See Galadima v. Tambai(2000) 11 NWLR (Pt. 677) 1 at 15, Ames Electrical Co. Ltd v. F.A.A.N (2002) 1 NWLR (Pt. 748) 35, Amale v. Sokoto Local Government (2012) 5 NWLR (Pt. 1291) 181 at 207;PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205 at 255 – 256. What I am trying to say is that there is no pigeon hole compliance with in the process of either raising the issue of jurisdiction suo motu or asking the parties or counsel on their behalf to address the Court on it or how the address is presented. In this case the appellant posits that the Court raised the issue of jurisdiction suo motu and did not ask nor obtain the address of the parties on the issue before determining that there was no jurisdiction. This position of the appellant the respondent disagrees with on the ground that when the Court raised the issue of Section 141 of the Electoral Act, 2010 (as amended) what was brought out by counsel was sufficient to meet

the requirement of an address on the issue of jurisdiction.” In Adegbite & Anor v. Amosu (supra) it held that “In any case, since the documents clearly raise the issue of jurisdiction, the issue sought to be raised cannot be defeated by rules of Court. This is because jurisdiction is radical in nature and since it is at the foundation of adjudication, it cannot be defeated by the provisions of rules of Court. Akegbejo & 3 Ors v. Dr. D.O Ataga & 3 Ors (1998) 1 NWLR (Pt. 534) 459 at 469. Because it is the foundation of any adjudication by the Court, there is no special format for raising it. Akegbejo & 3 Ors v. Dr D. O Ataga & 3 Ors. The Court will not endure that a rule meant to facilitate administration of justice will work injustice.“
This Court is bound by the principle of stare decisis to follow these decisions of the Supreme Court on the point.
Guided by the above restatements of the Supreme Court, this Court would consider this issue even though it is not derived from any ground of this appeal by virtue of Order 7 Rule 5 of the Court of Appeal Rules 2016 which provides that-

“5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
The fundamental importance of the jurisdiction of Court to adjudicate on a dispute before it makes the determination of the issue imperative and unavoidable, once it is raised in any manner and at any stage of a proceeding, even for the first time in an appeal in this Court or the Supreme Court. If a Court lacks the jurisdiction to entertain and determine a case, its adjudication and determination of such a dispute would be a nullity even if the lack of jurisdiction is raised and determined or not. So once it is raised, it must be determined, and noncompliance with the rules of Court in raising it cannot prevent a Court from considering and determining it in the interest of substantial justice and to avoid a situation where a decision given without jurisdiction continues to subsist to the disrepute of the Court and

due process of law.

In the light of the foregoing, I hold that the preliminary objection against grounds 3, 5, 6, 8 of this appeal and issues Nos. d and e succeeds. Grounds 3, 5, 6 and 8 of this appeal and issues No. d and e in the appellants brief are hereby struck out.

The preliminary objection against all other grounds and issues raised for determination is overruled and dismissed.
The issue for determination that are valid for determination are issues No. a, b, and c raised for determination in the appellant’s brief.

I will determine this appeal on the basis of these three issues.
Let me begin with issue No. b (2) which asks “Whether the trial Court was right to assume jurisdiction over issues of validity of election of political party executives and delegates, their tenure of office, and removal from office; all of which constitute domestic or internal affairs of the All Progressives Congress (APC)“

The part of the judgment of the trial Court complained against under this issue reads thusly “The 2nd issue is whether the subject matter is outside the territorial jurisdiction of the Court. It must be

noted from the beginning that from the Originating Summons and the Affidavit in support of same, I had earlier stated in this judgment that the Courts are creation of statutes and that it is statute that confers jurisdiction on the Courts. Section 255(1) of the 1999 Constitution created the High Court of the Federal Capital Territory while Section 257 confers it with jurisdiction.
It states: subject to the provisions of Section 251 and any other provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of legal right, power, duty liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.
In OGUNDE VS. GATEWAY TRANSIT LTD (2010) 8 NWLR PT 11196 PAGE 207. The Court of Appeal (Ibadan Division) held thus:
“To determine the competence of a Court, the subject

matter of a case must come within the Court’s jurisdiction. The Court’s territorial jurisdiction and the composition of the Court are other essential aspects of jurisdiction. A Court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the Federation. Also causes of action arising from within a State are justiceable by the Court in the same State.”
From facts of this case, as contained in the Originating Summons and the Affidavit in support thereof, the compliant of the claimant is that the defendant act was completely against its constitution and guidelines and the National Working Committee at the National Headquarters Abuja have no power to truncate the tenure of the party executive of a state validly conducted, sworn in and also participated in the National Congress as State Executive members of Cross Rivers, by publishing on dailies News Papers recourse to Court of law to justified same.
In the circumstance of this case, it is my view and I so hold that from the above facts as contained in the Originating summons and affidavit in support, this Court has jurisdiction to adjudicate on

this suit. This has succeeded.”

I have carefully read and considered the arguments of both sides on this issue.

The parties herein have in their briefs disagreed on whether the dispute brought to the trial Court in this case is within the domestic and internal affairs of the appellant or not. Learned Counsel for the appellant argued that disputes over who should be a member of a Ward, Local Government and State Executive Committee of a political party, their tenure of office, their election to the office and removal therefrom is clearly an internal or domestic affair of the political party and that the dispute in this case being about the 19-5-2018 election of members of the State executive committee of the Cross River State chapter of the appellant and its later nullification by its NWC, it is a domestic affair of the party.

Learned Counsel for the respondent has argued replicando that the suit before the lower Court did not bother on the issues of the leadership of the party at any level or elections to political party offices conducted by a political party, but rather a determination of whether the appellant was right to have removed

the respondents herein as members of the Cross River State executives of the appellant, considering that there was no lawful complaint about their election, in gross violation of Articles 17(i) & 20 (i)a of the appellant’s Constitution, that the issue of violation of the rules or guidelines of the political party and/or the Electoral Act cannot be categorized as internal affairs of a political party, that it is only where the party has complied with its own rules that the Court’s jurisdiction is ousted, that where the political party is found to have violated its own rules, the Court will exercise jurisdiction, that the party’s decision is only final where the complaint is not for non-compliance with the rules of the political party, that the complaint of violation of Articles 17(i) and 20(i)(a) of the appellant’s Constitution entitles the lower Court to exercise jurisdiction over the suit, that the appellant through its National Working Committee removed the respondents and called for a fresh congress on 21st and 22nd of August, 2018 without regard for its own Constitution and the report of the Appeal Panels it had set up, which

Panel found no merit in the complaints against the election of the Respondents.

Let me now determine the merits of these arguments.
The questions raised for determination in the Originating Summons at the trial Court read thusly –
“1. WHETHER in the circumstances of this suit, the Defendant, through a declaration of the National Working Committee, can lawfully nullify the election of the Cross River State Executives of the Party duly elected during the State Congress organized on 19th May, 2018 by the State Congress Committee duly appointed by the Defendant and led by Hon. Adamu Hussyne as Chairman, and in compliance with the Constitution of the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), considering that there is no lawful complaint pending against the election, the Appeal Committee of the Party having resolved all the minor complaints and upheld the election?
2. WHETHER in the light of the lawfully conducted Cross River State Wards & Local Government Congresses held on the 11th/12th, and 15th/16th, May, 2018 respectively, by Major Gen. A.T. Umaru (Rtd) and Barr.

Ambrose Egwunatum and the State Congress Committee duly appointed by the Defendant and led by Hon. Adamu Hussyne as Chairman, which served as the foundation for the State Congress held on 19th May, 2018, in compliance with the Constitution of the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), the Defendant can nullify the State Congress in contravention of the provisions of its Constitution.
3. WHETHER the National Working Committee of the Defendant has the power to remove the Cross River State Executives of the Defendant, duly elected in compliance with the Constitution of the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), without any proven violence and/or irregularity in their election at the Cross River State Congress of 19th May 2018, by mere proclamation in the Vanguard Newspaper of 2nd August, 2018?
4. WHETHER in the circumstances of this suit, the election of the Claimants as the Cross River State Executives of the Defendant is not valid, lawful and in compliance with the Constitution of the Defendant, under Article 20 of the

Constitution of the All Progressives Congress, 2014 (as amended), which enabled the Claimants to be Delegates who participated in the election of the National Officers of the Defendant?
5. WHETHER in the circumstances of this suit, the Claimants who were duly elected as the Cross River State Executives of the Defendant in the duly conducted State Congress of the Party held on the 19th day of May, 2018, in compliance with the Constitution the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), are not entitled to a 4 (four year) tenure in office as provided by Article 17(i) of the Constitution of the All Progressives Congress, 2014 (as amended)?
6. WHETHER the Defendant or any of its Organs, including the National Working Committee of the Defendant, can lawfully interfere with the result of the election of the Cross River State Executives of the Defendant or annul the Congress, conducted in compliance with Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), and, which Congress is already a subject matter of Suit No. FHC/ABJ/CS/605/2018 (ODY OYAMA & 22 ORS Vs APC

& ANOR); Suit No: FHC/ABJ/CS/580/2018 (HON. EBORTY S. EGBE & 4 ORS Vs. APC & ANOR) and Suit No. HCA/15/2018 (DR. MATTHEW ACHIGBE & ANOR Vs. HON. GODWIN ETIM JOHN & 8 ORS) where the Defendant is joined as a party, and which suits are still pending, thereby tampering with the res before the Courts?
7. WHETHER it is not the Court that are vested with the powers to nullify the Congress of the Defendant, once the internal dispute resolution mechanism of the Defendant, with the State Congress Appeal Panel, as the final Arbiter in that regard, had been exhausted, and especially where the Executives have taken their Oaths of Office and had been duly sworn in.
8. WHETHER it is equitable for the National Working Committee of the Defendant to nullify an election conducted by the Cross River State Congress Committee during the State Congress validly conducted on 19th May, 2018, in compliance with Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), and won by the Claimants, merely for the purpose of assuaging aggrieved members of the Defendant Party, for the sake of peace, without any regard whatsoever, for the

rights of the Claimants?”

The reliefs sought for in the said Originating Summons are as follows-
“1. A DECLARATION that the Defendant cannot lawfully nullify the election of the Cross River State Executives of the Defendant, duly elected during the State Congress organized on 19th May, 2018, by the Cross River State Congress Committee duly appointed by the Defendant and led by Hon. Adamu Hussyne as Chairman, and in compliance with the Constitution of the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended), considering that there is no lawful complaint pending against the election, the Appeal Committee of the All Progressives Congress having found no irregularity against the Election.
2. A DECLARATION that the National Working Committee of the Defendant has no power to remove the Cross-River State Executives of the Defendant without any reason and by mere proclamation in the Vanguard Newspaper of 2nd August, 2018.
3. A DECLARATION that the election of the Claimants as the Cross River State Executives of the Defendant during the Cross River State Congress of the Defendant,

conducted by the Congress Committee duly appointed by the Defendant and led by Hon. Adamu Hussyne as Chairman, is valid, lawful and in compliance with the Constitution of the Defendant, under Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended)
4. A DECLARATION that the Ward, Local Government & State Congress held on the 11th/12th, 15th/16th & 19th May, 2018 respectively, conducted by the Ward, Local Government and State Congresses Committee duly appointed by the Defendant are valid, lawful and in compliance with Article 20 of the Constitution of the All Progressives Congress, 2014 (as amended).
5. A DECLARATION that the Claimants who were duly elected as the Cross River State Executives of the Defendant in the duly conducted State Congress of the Defendant held on 19th May, 2018 are entitled to a 4 (Four year) tenure in office as provided by the Constitution of the Defendant, under Article 17(i) of the Constitution of the All Progressives Congress 2014 (as amended).
6. A DECLARATION that neither the Defendant nor any of its organs, including the National Working Committee of the Defendant, can lawfully

interfere with the result of the election of the Cross River State Executives of the Defendant or annul the Congress, where the Congress is already a subject matter of Suit No: FHC/ABJ/CS/605/2018 (ODEY OYAMA & 22 ORS Vs APC & ANOR); Suit No: FHC/ABJ/CS/580/2018 (HON. EBORTY S. EGBE & 4 ORS Vs APC & ANOR) and Suit O: HCA/15/2018 (DR. MARTTHEW ACHIGBE & ANOR Vs. HON. GODWIN ETIM JOHN & 8 ORS) where the Defendant is joined as a party, while the matters are still pending in the various Courts.
7. A DECLARATION that it is only the Courts which are vested with the powers to nullify the Congress of the Defendant held on 19th May, 2018, in Cross River State and not the National Working Committee of the Defendant.
8. AN ORDER NULLIFYING THE DECISION of the National Working Committee of the Defendant made on 1st August, 2018, or on any other date and published on page 12 of the Vanguard Newspaper of 2nd August, 2018, or by any other mode by which it purported to cancel or annul the State Congress of the Defendant in Cross River State conducted on 19th May, 2018, in compliance with Article 20 of the Constitution of the All Progressives

Congress, 2014 (as amended).
9. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant by itself or through any of its organs, including the National Working Committee, from interfering with the tenure, rights and duties of the Claimants as the Cross River State Executives of the Defendant.
10. AN ORDER MANDATING the Defendant and all its organs and officers by whatever name called, to accord the Claimants all their rights, privileges and fully permit their performance of their duties as the elected members of the Cross River State Executives of the Defendant.
AND ANY OTHER OR FURTHER ORDERS as this Court may deem fit to make in the circumstances borne out of this Summons.“

It is obvious from these questions and reliefs that the suit contends that the election of the respondents as members of the Executive Committee of the Cross River State Chapter of the appellant by the Cross River State Congress of 19-5-2018 is valid, and lawful as it is in compliance with Article 20 of the Appellant’s Constitution and challenges the decision of the National Working Committee of the appellant on 1-8-2018 nullifying the said Cross River

State congress election of members of the appellant into offices in the executive committee of its Cross River State Chapter and the election of the claimants as such members. The election of members of a political party by Ward, Local Government Area and State Congresses to offices in the respective chapters of the party in a State is clearly an internal affair of that party. Any dispute as to the validity of such an election or its nullification or cancellation by the National Working Committee of the Political party is therefore an internal or domestic affair of that political party. The Supreme Court inUfomba v. INEC & Ors (2017) LPELR – 42079 (SC), Emenike v. PDP (2012) 12 NWLR (Pt 1315) 556 and PDP v. Sylva has held that disputes over of who should hold party offices in a political party, leadership of the political party, membership of the party and its administration are the internal or domestic affairs of the political party. See also the similar decisions of this Court in Abdulkadir v. Mamman (2003) NWLR (Pt 834) 1 at 30, Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) 564 and Balonwu v. Chinyelu (1991) 4 NWLR (Pt 183) 30 at 41. It is noteworthy

that the suit in Abdulkadir v. Mamman was to protect the election of the plaintiffs as national officers of a political party, Alliance for Democracy by a National convention that held on 1-11-2000 in Abuja and to nullify the convention that elected the defendants as national officers of Alliance for Democracy as being in violation of the Constitution of Alliance for Democracy and therefore illegal and void. This Court held that the subject of the complaints and claims in the originating summons of the plaintiffs/respondents, is an intra-party dispute on an internal affair of the Alliance for Democracy a registered political party concerned.
In the sister case of Ochala & Ors v. John & Ors (2019) LPELR – 47001 (CA), brought concerning the subject matter of the present case, to enforce the judgment appealed against in this appeal, this Court held that this dispute is an internal affair of the appellant. The exact text of the decision of this Court reads thusly- “In the prolegomenon, I restated that the contest between the parties was with respect to the State Executive of the Cross River State Chapter of the 3rd Respondent and whether

there has been disobedience to the orders of the High Court of Federal Capital Territory in respect thereto; and also as it relates to the occupation and of the Secretariat Annex of the 3rd Respondent. Now, does Section 87 (9) of the Electoral Act relied upon by the lower Court imbue it with jurisdiction to enforce the order of a Court with regard to the persons who are to hold offices in a political party and who are to be engaged in the governance of a political party? The said section provides as follows. “(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 compiled within 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. “For the stipulations of the above Section 87 (9) to be applicable, the facts and circumstances of the case must fall within the ambit of the stipulation. The provision donates jurisdiction to the Court in very circumscribed situations, that is, where there is a compliant

that the relevant provisions and guidelines have not been complied with in the selection or nomination of the candidate of a political party for election. It is therefore clear that the provision is not a carte-blanche. It has to be a compliant relating to the selection or nomination of a candidate for election. MADUEMEZIA vs. UWAJE (2015) LPELR (24542) 1 at 18-19. The facts of this matter do not relate to the nomination or selection of anyone as a candidate of a political party for election. At the risk of prolixity, it is in respect of the alleged disobedience of the orders of the High Court of the Federal Capital Territory as it relates to the State Executive of the Cross-River State Chapter of the 3rd Respondent and the occupation of the Secretariat Annex of the 3rd Respondent. Accordingly, the limited jurisdiction conferred by Section 87 (9) of the Electoral Act, 2010 as amended, does not in any way or manner imbue the lower Court with jurisdiction in the diacritical circumstances of this matter. The subject matter was also not within the enumerated jurisdiction of the lower Court under Section 251 (1) of the 1999 Constitution. Paucis verbis, the lower

Court did not have the jurisdictional competence to entertain the action. The lower Court was therefore wrong when it held that it was imbued with jurisdiction to entertain the matter by Section 87 (9) of the Electoral Act (see page 789 of Volume II of the Records). In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (pt 84) 508 at 520: “If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.” From the argument of the parties in their respective briefs, the question that should be considered at this point is whether the trial Court validly and competently exercised its jurisdiction to entertain and determine the respondents’ suit.
Learned Counsel for the appellant has argued that except the jurisdiction vested on it by S.31 (5) and S.87(9) of the Electoral Act 2010 as amended, the trial Court has no jurisdiction to entertain disputes over the

internal or domestic affairs of a political party, that the claims in the suit touch on the internal or domestic affairs of the appellant concerning the leadership of the party in Cross River State, that such matters are non-justiciable, that intra-party governance, including the election/conduct of Ward, Local Government Area and State Congresses is entirely within the province of the party, that the Courts cannot interfere with disputes arising therefrom, that the Court has jurisdiction to interfere in political party affairs only when such issue has to do with nomination or selection of candidates for election, and which such nomination or selection was done contrary to the electoral law and the guidelines of the political party or that the candidate so nominated and presented to the Independent National Electoral Commission (INEC) has given false information about himself and the information is made public by INEC, and any person who has reasonable grounds to believe that such information is false can then approach the Court, that apart from these two narrow exceptions to the well-established position of the law, the Court has no jurisdiction to entertain

any matter concerning political party affairs, that the issues at the trial Court were issues which border on the election of Ward executives, Local Government executives and State executive members of All Progressives Congress, all of which fall within the domestic affairs of the party, that this was the case in PDP V. OGUNDIPE (Supra), that these issues being the domestic affairs of the party, any member of the party who is aggrieved with the process or outcome is, by the constitution of the party, bound to seek redress within the party, using the party dispute-resolution mechanism as provided in the constitution of the party, that the reliefs sought at the trial Court by the Claimants (now Respondents) did not and can never donate jurisdiction to the trial Court to adjudicate on it. Learned Counsel for the respondents argued replicando that the suit before the lower Court sought the determination of whether the appellant was right to have removed the respondents herein as Cross River State executives of the appellant, considering that there was no lawful complaint about the congress election, in gross violation of Articles 17(i) & 20 (i)a of the

appellant’s constitution, that it is only where the party has complied with its own rules that the Court’s jurisdiction is ousted, that where the political party is found to have violated its own rules, the Court will exercise jurisdiction, that the party’s decision is only final where the complaint is not for non-compliance with the rules of the political party, that the compliant of violation of Articles 17(i) and 20(i)a of the appellant’s Constitution entitles the lower Court to exercise jurisdiction over the suit, that the appellants through its National Working Committee removed the respondents (claimants at the lower Court) and called for a fresh congress on 21st and 22nd of August, 2018 without regard for its own constitution and the report of the Appeal panels set up by the appellant, which found no merit in the complaints against the election of the Respondents, that a political party as well as every member of the party is bound by the Constitution and guidelines of the political party, that it is not for the member and the party itself to selectively comply with their constitution and rules, that by virtue ofSs.6 6(b) and

S.257(1) of the 1999 Constitution the trial Court has jurisdiction to entertain and determine the suit.
Let me now determine the merit of the above arguments of both sides.
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 a crime is imputed or there is a claim for damages for breach of the personal contractual right of a person. As held by the Supreme Court in the leading case of Onuoha v. 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 issues 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 had sued for a breach of contract between himself and the party, claiming damages for breach of contract.” See also Labour Party & Ors v. Oyatoro (2016) LPELR – 40135 (CA).
In Amaechi v. INEC (2007) 9 NWLR (Pt. 1040) 504 this Court held that the expulsion of a member of a political party as a disciplinary measure remains an intra-party affair and the Court cannot inquire into it. In the sister case of Ochala & Ors v. John & Ors (2019) LPELR – 47001 (CA), this Court held that this dispute over the election of members of the executive committee of the Cross River State Chapter of the appellant by the state congress of 19-5-2018 cannot be determined by a Court.
In Abdulkadir & Anor v. Mamman & Ors (2003) LPELR – 10287 (CA) this Court held concerning questions and reliefs similar to the ones in our present case , thusly “There is no doubt therefore that the issue in this case concerns the control and management of the political party-

the Alliance for Democracy. This is conceded by all the parties. The question then becomes narrowed down to this- whether the dispute is an intra-party dispute or it is a dispute concerning the proprietary rights or contractual rights of some of the members of the party vis-a-vis the party itself. The practice of the Court is not to run associations (corporations and unincorporated associations) for members. The brief of 1st, 2nd and 3rd respondents put the matter very succinctly at p. 11 of the brief when it states that the position of the law is that disputes which arise must be resolved by a majority decision of the members. This is the so called majority rule otherwise known as the rule in Foss V Harbottle (1843) 2 Hare 461, the decision in which was first articulated…. Furthermore, looking through the statement of claim, I am unable to find any allegation of the infringement of any personal rights of the plaintiffs or any claim for damages therefor. It would be seen from the statement of claim of plaintiffs that the primary aim is to obtain an order of the Court which would compel the members of Alliance for Democracy to elect plaintiffs as national

officers of the party. The Court, however, is not an appellate body set up by the party under its Constitution to hear appeals from unsuccessful candidates in the exercise of nomination and running for elections into the national executive of the party.”
The principle underlying this law is that voluntary associations or organizations are internally run by majority of the members and that therefore disputes which arise within them must be resolved by the majority decision of their members. This principle commonly known as the rule in Foss v. Harbottle was restated by the Supreme Court in Abubakri & Ors v. Smith & Ors(1973) 6 SC 31 by adopting the statement of Mellish L.J in McDonghall v. Gardiner (1875) ch. D 13 at 15 – 26 thus- “in my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes. Is it not

better that the rule should be adhered to that if it is a thing which the majority are the masters of, the majority in substance shall be entitled to have their will followed? If it is a matter of that nature, it only comes to this, that the majority are the only persons who can complain that a thing which they are entitled to do has been done irregularly; and that, as I understand it, is what has been decided by the cases of Mozley V Alston (1) and Foss V Harbottle (2). In my opinion that this is the rule that is to be maintained. Of course, if the majority are abusing their powers, and are depriving the minority of their rights, that is an entirely different thing, and there the minority are entitled to come before this Court to maintain their rights, but if what is complained of is simply that something which the majority are entitled to do has been done or undone irregularly, then I think it is quite right that nobody should have a right to set that aside or to institute a suit in Chancery about it, except the company itself.”
The claim by the respondents that the appellant violated its own rules and constitution cannot give a Court

jurisdiction to inquire into the claim as it is non justiciable. This is because the doctrine of ultra vires has no application in the internal affairs of a voluntary association. So the decision of the National Working Committee nullifying the election of the respondents as Cross River State Executive officers of the appellant cannot be challenged in Court as being contrary to the appellant’s constitution. As held by Lord Denning inInstitution of Mechanical Engineers V Cane (1961) A.C. 696 at 724 the doctrine of ultra vires has no application in the internal affairs of a voluntary association of individuals. This decision was followed by the Supreme Court in Onuoha V Okafor (supra) and PDP V Sylva (Supra) and by this Court inAbdulkadir & Anor V Mamman & Ors(supra), Chinwo V Owhonda (supra) and in Okoroafor & Ors v. Emeka (CA/E/10/2015 of 14-4-2015). It is emphasised in all these decisions that a member of a voluntary organisation cannot sue for breach of the internal Constitution and regulations of the organisation in the internal affairs of the organisation. While individual members are bound to follow the rules of the organisation and

the decision of majority of the members, the organization or majority of its members can choose to flout its internal rules. See Abubakri & Ors v. Smith & Ors.
In any case, the respondents did not even show that the nullification of their election by the appellant was in violation of the appellant’s Constitution and rules. Beyond the assertions in the affidavits in support of their Originating Summons, that the appellant’s nullification of their election did not comply with its constitution, the Constitution was not in evidence in the proceedings as the respondents failed to attach it as an exhibit to any of the affidavits in support of their case. The constitution of the appellant is the foundation they built their case on. In the absence of that constitution, their contention that the nullification of their election as executives of the Cross River State Chapter of the appellant by the appellant is contrary to the appellant’s constitution is baseless. Such a contention cannot be resolved without reading the constitution. To decide this point without seeing and reading the constitution of the appellant would amount to

speculating on the contents of the constitution. A decision emanating from such speculation would be obviously perverse. A Court cannot determine any issue in a case on the basis of a document that is not part of the evidence before it. See Gbajor V Ogunburegui, Ogli Oko Memorial Farms Ltd & Aor V NACB Ltd & Anor (2008) LPELR -2306(SC),Okoya & Ors V Santilli & Ors(993-1994) All NLR 404 and Agip Nig. Ltd & Ors V Ezendu & Ors(2010) 1 SC (Pt.11) 98.
The content of the constitution and guidelines of a political party must be proven by evidence. Their contents are known by only the members of the political party and not the general public. They are not among the facts or documents that a Court must take judicial notice of within the provisions of Ss. 122(2) and 124(1)(a) of the Evidence Act 2011. The best evidence of the constitution of a political party is the said constitution produced and put in evidence as part of the admitted evidence before a Court.
The respondents do not have a personal right to be members of the executives of the Cross River State Chapter of the appellant. The right to determine who should lead or manage

the Cross River State Chapter of the appellant as a member of the executive Committee of the Chapter belongs to the appellant, which right is exercised by a majority of the members of the appellant in Cross River State through the congresses organized by the NWC of the appellant. It is only the appellant that can organize the holding of such congress and decide if such congress is properly held or not. The decision of the appellant through its NWC who represent the majority of its members, that a congress or the process of election of persons to party offices is flawed and is cancelled or nullified cannot be challenged in Court by any member of the appellant or the persons who claim to have been elected by the nullified or cancelled process. It is a non-justiciable issue. See Abdulkadir V Mamman (supra).
InAbubakri & Ors V Smith & Ors (1973) 6 SC 3, the plaintiffs sued not in a representative capacity, but simply as members of the Jamat-ul-Muslim of Lagos, and that the 1st plaintiff was the General Secretary of the Jamat, the 2nd plaintiff was the Treasurer, both of them having been duly elected under the Constitution of the religious community. It

was further averred that the defendants later abrogated the Constitution and then elected officers of the Jamat under a new set of rules and regulations established by them, and that they wrongly retained in their possession all the records, books, monies and other properties of the Jamat, and appointed members of an executive committee who thereby usurped the offices and functions of the duly elected executive committee under the original Constitution, and collected funds on behalf of the Jamat for which they have failed to account. The plaintiffs then claimed for an order restraining the defendants from holding themselves out as members or officers of the Executive Committee of the Jamat, for an account for monies collected by the defendants and payment of same to plaintiffs and for the return of properties belonging to the Jamat. In respect of the appellants’ contention in that case that their personal or contractual rights had been infringed, the Supreme Court held thus “this does not seem to be borne out by their pleadings. Where is the breach of contract? What personal rights of the appellants have been violated? They claim that new

officers have been elected in their places, that books and other properties of the Jamat are being withheld by the respondents, and that funds of which the Jamat is the beneficial owner should be paid over to them or to some other person appointed by the Jamat. But the Jamat is not a party to the action nor have they sued on its behalf.” In Okoroafor & Ors v. Emeka (CA/E/10/2015 of 14-4-2015), this Court held thusly- “Let me straight away state that the right to continue to head or lead the church as General Superintendent of the church as a voluntary religious body is not a personal right of the respondent. It is a right belonging to the church, majority of whose members voted him into that office in November, 2010 to head the church. It is not the exclusive personal or private right of the respondent. Therefore he ought to have brought Suit No. E/202M/14 for himself and on behalf of Assemblies of God, Nigeria, in a representative capacity. The Suit was brought to reverse his dismissal as Minister of the Church. It is clear from Article VII Section 1 (g) of the Constitution of the Church that an Officer of the Church (which includes the

General Superintendent) “shall continue in office until he is recommended for removal from the office by a two-thirds majority vote of the General Committee of the General Council, and ratified by two-thirds majority vote at a subsequent meeting of the General Council”. The power to remove the respondent belongs to the General Committee and the General Council on behalf of the members of the church. Therefore, it is only the church that can complain that what its General Committee and General Council were entitled to do on its behalf had been done irregularly.
The reliefs claimed for by the respondent in this case are not based on any violation of his personal or contractual rights. They are based on his dismissal as minister of the church and suspension as member of the church by the General Committee of the church, his replacement by the 1stappellant as General Superintendent of the church and the appointment of a panel to inquire into and hear the complains by members of the church against him of maladministration and wrongdoings as General Superintendent of the church. He did not claim for damages for defamation. The right to have

the respondent as General Superintendent of the church being a right belonging to the church, general damages or any relief cannot be awarded to the respondent for the violation of that right.”
Ss. 31(5) and (6) and 87(9) of the Electoral Act 2010 as amended vest in the High Courts a very limited jurisdiction to adjudicate over only two type of disputes concerning the internal or domestic affairs of a political party. The first type of dispute is one involving the question whether the information given by the candidate of a political party for an election in the affidavit or document it submitted to INEC is false. By virtue of S.31(5) and (6) of the Electoral Act 2010 as amended, a suit can be brought to a High Court by any person seeking for a declaration that the said information is false and praying for an order of the Court disqualifying the candidate from contesting the election. The second type of dispute is a complain that a political party’s selection or nomination of its candidate for an election did not comply with some provisions of the Electoral and its Guidelines and Constitution. By virtue of S. 87(9) of the Electoral Act 2010,

an aspirant in the political party’s primary election of its candidate for the general election can bring such a complain by an application to the High Court for redress.
The exact texts of those provisions read thusly-
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of the 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 High Court of a State or FCT, for redress”.
A High Court can, by virtue of S.87(9) entertain a suit challenging political party’s selection or nomination of its candidate for an election for noncompliance with the political party’s constitution and guidelines and the Electoral Act and can for that purpose inquire into the internal processes of the political party for the selection or nomination of its said candidate to find out if the processes are contrary to the Electoral Act, the Constitution and guidelines of the party. So it is only in the limited situations provided for in

Ss. 31 (5) and (6) and S.87(9) of the Electoral Act that a High Court can have jurisdiction to inquire into the internal affairs, processes and decisions of a political party that nominated or selected its candidate for the purpose of an upcoming general election.
Our present case does not come within the class of disputes provided for in Ss.31(5) and (6) and 87(9) of the Electoral Act 2010 that give the Court jurisdiction to inquire into the internal affairs of the appellant. Our present case is a dispute as to the validity or lawfulness of the election of the respondents to political party offices in Cross River State Chapter of the appellant and the validity of the appellant’s nullification of their said election. So the trial Court cannot invoke its jurisdiction under Ss. 31(5) and (6) and 87(9) of the Electoral Act to inquire into this type of dispute. The statements of the Supreme Court in Tukur v. Uba (2013) 4 NWLR (Pt 1343) 90 at 163, Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt 1275) 30 at 60 and Olley v. Tunji (2013) 10 NWLR (Pt 1362) 257 at 328 that the Courts will not allow a political party to act as it likes and that political

parties must comply with their Constitution in their dealings with their members, which statements were reproduced in the respondents’ brief were made with regard to its internal processes for the selection or nomination of its candidate for election, which S.87(9) of the Electoral Act 2010 require to comply with their Constitution and guidelines and expressly gave the High Court jurisdiction to determine such compliance. Those statements are inapplicable to the other aspects of the internal affairs of a political party including its decisions upholding or nullifying any congresses or elections to political party officers, its decisions levying disciplinary measures on its members and its decision on other aspects of its internal administration. The Courts have not been given jurisdiction by any statute over such matter.
The Supreme Court clearly laid down the law on this point in Ufomba v. INEC (supra) thusly – “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 of Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi JSC, in his lead judgment emphasising the narrow scope of the jurisdiction vested on the High Courts by S.87(9) of the Electoral Act 2010, 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.” The interpretation of Section 87 of the Electoral Act is not meant to operate at large, so as to open a flood gate for litigations by political party members, who are dissatisfied with the conduct of the primaries elections. The jurisdiction of the Courts, under this Section, is limited to examining, if the conduct of the primaries elections were strictly in accordance with the Party’s Constitution and

Guidelines. See Hope Uzodinma v. Sen. O. Izunaso (2011) 17 NWLR (Pt. 1275) 28. Therefore, what grants jurisdiction is non-compliance with Electoral Guidelines of the Political party not its Constitution. The cardinal principle of law in the construction or interpretation of a statute is well adopted in the case of Owners of MV Arabella v. Nig. Agric Ins. Corp. (2008) 4 -5 SC (Pt. 11) 189 at 211. 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 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.”
The attractive argument of learned Counsel for the respondent that the trial Court correctly assumed jurisdiction to entertain and determine the respondents’ claim by virtue of the provisions of Ss. 6(6)(b)and 257(1) of the 1999 Constitution is not correct. The exact text of those provisions read thusly-
“6(b) Shall extend to all matters between persons, or between government or authority and to any person 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.”
257(i) The High Court of the Federal Capital territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and…..“
It is glaring from the clear words of those provisions that the judicial power of the Courts extend 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 do not extend to the determination of questions over nonexistent 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. Therefore, its exercise of jurisdiction and its proceedings and judgment are a nullity.
Issue No. 2 in the appellant’s brief is resolved in favour of the appellant.

Let me now consider issue No. 3 which asks “Whether the trial Court (High Court of the Federal Capital Territory) is vested with territorial jurisdiction over the cause of action which arose from and was completed in Cross River State.“

The part of the judgment appealed against under this issue reads thusly-
“The 2nd issue is whether the subject matter is outside the territorial jurisdiction of the Court. It must be noted from the beginning that from the Originating

Summons and the Affidavit in support of same, I had earlier stated in this judgment that the Courts are creation of statutes and that it is statute that confers jurisdiction on the Courts. Section 255(1) of the 1999 Constitution created the High Court of the Federal Capital Territory while Section 257 confers it with jurisdiction.
It states: subject to the provisions of Section 251 and any other provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of legal right, power, duty liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.
In OGUNDE VS. GATEWAY TRANSIT LTD (2010) 8 NWLR PT 11196 PAGE 207, the Court of Appeal (Ibadan Division) held thus:
“To determine the competence of a Court, the subject matter of a case must come within the Court’s

jurisdiction. The Court’s territorial jurisdiction and the composition of the Court are other essential aspects of jurisdiction. A Court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the Federation. Also causes of action arising from within a State are justiceable by the Court in the same State.”
From facts of this case, as contained in the Originating Summons and the Affidavit in support thereof, the compliant of the claimant is that the defendant act was completely against its constitution and guidelines and the National Working Committee at the National Headquarters Abuja have no power to truncate the tenure of the party executive of a State validly conducted, sworn in and also participated in the National Congress as State Executive members of Cross Rivers, by publishing on dailies News Papers recourse to Court of law to justified same.
In the circumstance of this case, it is my view and I so hold that from the above facts as contained in the Originating summons and affidavit in support, this Court has jurisdiction to adjudicate on this suit. This has succeeded.

In my view and I so hold that the defendant couldn’t have conducted the 2 August 2018 Cross River executives after knowing full the existence of the validly elected executives of the Cross River State members who were sworn in by the same national body of the defendant here in Abuja, having regard to the illegality and unconstitutionality of the defendant act, to do otherwise would amount to political lawlessness and rascality. At this juncture, all the relief sought by the claimants is hereby granted. It further declared that the state congress conducted or purportedly conducted on the 2nd August 2018 is derailing from the defendant Constitution and 2018 party guidelines is nullity and null and void abinitio, same is hereby nullified.”

I have carefully read and considered all the arguments of both sides on this issue.
It is clear from the questions raised for determination and the reliefs claimed for in the Originating Summons, which questions and reliefs are reproduced in pages 20-27 of this judgment, that the respondents brought the suit for themselves and on behalf of all the executives and delegates at the Cross River State APC Ward, Local Government

and State Congresses held on 8th, 12th and 19th May 2018 and contend that the above mentioned congresses were lawfully conducted, that they were lawfully, duly and validly elected as executives of the Cross River State Chapter of the appellant by the Cross River State Congress that duly held on 19-5-2018, that the appellant through its NWC nullified the said state congress and the said elections of the respondents contrary to the constitution of the appellant merely for the purpose of assuaging the aggrieved members of the appellant for the sake of peace, that neither the appellant nor any of its organs including the NWC can lawfully nullify the State Congress and election of the respondents. The established and undisputed facts are that the Ward, Local Government Area and State Congresses referred to above and the election of the respondents as executives of the Cross River State Chapter of the appellant took place in Cross River State and that the decision of the NWC of the appellant to nullify the 19-5-2018 State Congress and election of the respondents was made in the National office of the appellant in Abuja and published nationwide through the

Vanguard Newspaper of 2-8-2018.
Learned Counsel for the appellant argued that the trial Court had no territorial jurisdiction to entertain and determine the suit because the Wards, Local Government and State Congress and election that gave rise to the suit took place in Cross River State, outside the Federal Capital Territory, that it is the Cross River State High Court that has jurisdiction to entertain the suit by virtue of S.272(1) of the 1999 Constitution. For this submission, he relied on the decisions of the Supreme Court in Dalhatu v. Turaki (2003) 15 NWLR (Pt. 834) 247 – 248 and Mailantarki v. Tongo & Ors (2017 LPELR – 42467 (SC) and the decision of this Court in Nwankwo v. State (1983) INCR 366.
Learned Counsel for the respondents argued that the trial Court had the territorial jurisdiction to entertain and determine the suit because the cause of action is the illegal removal of the respondents as appellant’s validly elected executives of the Cross River State Chapter of the appellant which took place on 1-8-2018 at the National Headquarters of the appellant in Abuja and published nationwide through Vanguard Newspaper of

2-8-2018, that Order 3 Rule 4(1) of the High Court of FCT (Civil Procedure) Rules 2018 provide that suits may be commenced and determined in the judicial division in which a defendant resides or carries on business, that since the wrongful act complained of, took place in Abuja where the appellant carried on business, the trial Court had the jurisdiction to entertain the suit.
Let me now determine the merits of the above arguments of both sides.
Since the suit is about the validity of the congresses and the election of the executives of the Cross River Chapter of the appellant, in Cross River State, the trial Court, whose territorial jurisdiction is limited to the Abuja Federal Capital Territory, has no jurisdiction to entertain and determine it, irrespective of the fact that the decision of the appellant through its NWC nullifying the Cross River State Congress of 19-5-2018 and the election of the executives of the Cross River State Chapter of the appellant was made by the appellant in its National office in Abuja. This is because the said state congress and election is the heart of the entire dispute and the subject of the nullification. The decision

to nullify the congress and election remains an incident of the said congress and election. The primary issue therefore arose in Cross River State and has to do with parties that are in Cross River State. In Mailantarki v. Tongo & Ors (supra), the Supreme Court held that the High Court of FCT had no jurisdiction to entertain a suit concerning primary elections that held in Gombe, even though the decision on the Appeal Committee report on the primaries was taken by the Political Party at its National Office in Abuja and the list of candidates was submitted by the said political party from its National office in Abuja to INEC Headquarters at Abuja.
The exact text of the holding of the Supreme Court reads thusly- “it is settled law that a Court in one State does not have jurisdiction to hear and determine a matter, within the exclusive jurisdiction of another State… There cannot be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory. In the instant case, the cause of action, which is the primary election of the 2nd

Respondent, took place in Gombe State. The appeal committee also sat in Gombe State. There is no justification for the institution of the case before the High Court of the FCT in Abuja. The filing of the suit before that Court is a clear example of “forum shopping” in the hope of securing a favourable outcome. This practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner who filed the suit….. For the appellant, it is submitted that the suit of the appellant, filed at the FCT High Court, touched on the primaries held by the APC on the 8th December, 2014, that the suit was filed to enforce the decision/finding already taken by the National Assembly Election Appeal Committee of the APC and which decision had been duly forwarded to the headquarters of the APC for implementation. The implementation of the findings of the Appeal Committee entails forwarding of the names of the winner of the primary election conducted on 8th December, 2014 to INEC at its headquarters in the FCT. Exhibit I, the senior counsel for the appellant submits, is the report of the appeal committee

which must be submitted and which was, in fact, submitted to APC at its headquarter in FCT, Abuja, for implementation. Senior Counsel further submits that the suit was filed to enforce the decision of the appeal committee which was to be implemented in the FCT, Abuja, hence the decision to file the suit at the FCT High Court. The learned Senior counsel submits further that though the facts leading to the report of the appeal committee relate to the primary election held in Gombe State, the cause of action or the act over which the appellant is aggrieved, took place in Abuja. And that by virtue of Order 9 Rule 4(1) and Order 22 Rule 5 of the High Court of the Federal Territory, Abuja (Civil Procedure) Rules 2004 read with Section 257(1) of the 1999 Constitution, as amended. Section 9 of the High Court of the Federal Territory Act and Section 87(9) Electoral Act, 2010 as amended, the High Court of the FCT has jurisdiction to entertain the appellant’s suit.
The lower Court has rightly in my view, held, relying on Dalhatu v. Turaki (supra), that the jurisdiction of the High Court of the Federal Capital Territory, Abuja, which is regarded as a State

High Court by virtue of Section 299(a) of the 1999 Constitution (as amended) does not extend to matters that arise outside the Federal Capital Territory, Abuja. I also agree with their lordships of the lower Court that each State of the Federation is independent of the Federal Capital Territory, Abuja and vice versa and that the judicial powers of each State are vested in the Courts established for that State. Gombe State and the Federal Capital Territory, Abuja are distinct and independent of each other. It follows, therefore, that this matter which arose in Gombe State and has to do with the parties in Gombe State should have been commenced in the High Court of Gombe State, and not in the FCT High Court. The FCT High Court has, in the circumstance, acted ultra vires in assuming jurisdiction over a cause of action that arose in Gombe State and outside its jurisdiction territory. The proceedings in the suit No. FCT/CV/934/2015 before the FCT High Court, being incompetent, deserved to be and were correctly struck out by the lower Court. There is no substance in his appeal on this issue… The decision

to file this suit in the FCT High Court far away from Gombe State where the cause of action arose cannot be anything but a sheer decision to abuse the judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territory jurisdiction or Court in which a matter or cause may be entertained and adjudicated upon. A typical example of forum shopping, according to Blackâs Law Dictionary, is where the plaintiff institutes a suit in the jurisdiction with a reputation for awarding high damages, disdain for political gimmicks or filing several similar suits and keeping the one with the preferred Judge. See also Idemudia v. Igbinedion University, Okada & Ors. (2015) LPELR-24514 (CA). The instant appellant, as the plaintiff, had artfully avoided the High Court of Gombe State, in preference to the FCT High Court, because the former, as it appears may be a forum inconvenience. I say no more. The dictum of Ogundare, JSC, which I had earlier reproduced, should be sufficient to put their lordships of the FCT High Court on the watch out or guard so that their Courts will not be turned into axis of forum shopping.

Let me quickly deal with the argument of the learned senior counsel to the effect that, by dint of Order 9 Rule 4(1) and Order 22 Rule 5 of the FCT High Court (Civil Procedure) Rules, the FCT High Court can exercise jurisdiction over the cause of action that arose in Gombe State. The law is settled that the jurisdiction of a Court of record, in its board and substantive sense, cannot be conferred by the rules of Court. The rules of Court are only made, pursuant to the powers conferred on the heads of Courts by the Constitution to make rules, to regulate practice and procedure in their respective Courts. The rules they make are only to regulate the practice and procedure in their respective Courts. The rules of Court do not confer jurisdiction on the Court to entertain causes or matters. Rather, the jurisdiction of Courts in Nigeria is either conferred or vested by the Constitution or the enabling statute establishing the Court. This is my understanding of the dictum of Obaseki, JSC in Clement v. Iwuanyanwu (1989) 4 SC (pt. II) 89; (1989) 3 NWLR (Pt. 107) 39 on the question whether rules of Court confer substantive jurisdiction on the Court they relate to. My answer,

therefore, to the submission of the appellant’s senior counsel on this, is that the FCT High Court does not derive any jurisdiction from its rules of practice and procedure to entertain any cause or matter, the dispute in respect of which arose in Gombe State or any other place outside the Federal Capital Territory, Abuja.”
The apex Court had already held in Dalhatu v. Turaki (supra) that “It is undeniable that the events that led to that action had to do with the Governorship of Jigawa State. It is of course not debateable that Jigawa State is totally distinct and different from the Federal Capital Territory, Abuja. It seems to me that if any action was to be properly commenced, that action should have initiated in the Court in Jigawa State….
I have taken pains to discuss this judgment on territorial jurisdiction of a Court in view of recent development whereby litigants rather than suing in the proper Courts come to the High Court of the Federal Capital Territory Abuja. I think their Lordship of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to

exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their Court, unlike the Federal High Court has jurisdiction only in matters arising out of the Federal Capital Territory Abuja. Order 10 Rule 4 is only to determine the proper judicial division of the Court where a matter can be heard and determined…The evidence called by the 1st Respondent upon which the judgment of the lower Court was hinged clearly shows that nothing in connection with the primaries the subject matter of the dispute took place in Abuja. It is irrelevant that the Defendants resided or had offices in Abuja. Would the 1st Respondent have sued in Lagos or Port-Harcourt if the defendants had offices or reside in either of the two cities? There was no reason sustainable in law why the suit could be initiated in any venue other than Dutse or Kano. There was no jurisdiction in the Abuja High Court to entertain this suit. The lower Court should have struck out the suit.”
I do not agree with the argument of Learned Counsel for the respondent that Order 9 Rule 4(1) of the High Court of FCT (Civil Procedure) Rules enabled the trial Court to

validly exercise jurisdiction over the suit since the national office of the defendant (appellant) is in Abuja. It is settled law that rules of practice and procedure of a Court do not confer jurisdiction on a Court and cannot reduce or take away the jurisdiction of a Court. They regulate the procedure of the Court in proceedings that come to it in its competent jurisdiction.Order 9 Rule 4(1) regulates the venue for the trial of cases that are within the territorial jurisdiction of the High court of the Federal Capital Territory and cannot operate to confer a nonexistent territorial jurisdiction on the Court because the national office of the defendant to the suit is in the Federal Capital Territory. The Supreme Court in Mailantarki v. Tongo & Ors (supra) decided this issue thusly- “In Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69 where the Supreme Court was confronted with a similar situation. In that case, the Plaintiff also argued that the FCT High Court had jurisdiction to entertain the matter because the National Working Committee of APC which is headquartered in Abuja, FCT had submitted the list of candidates and Forms CF001 which did not

include his name to the headquarters of INEC in Abuja FCT. In rejecting this argument, the Supreme Court found that the fact that the name of the candidate the Plaintiff was complaining against was submitted and received in Abuja did not confer jurisdiction on the High Court of the FCT as the submission and receipt of names and FORMS CF001 at the INEC headquarters were merely incidental to the actual primary election conducted at Gombe State. Indeed, their Lordships frowned at the prospect that a High Court in the FCT would determine who would be governor in faraway Gombe State. Please see pages 84-85 paras. G-C where the Supreme Court related the Appellant’s case as follows:
“For the appellant, it is submitted that the suit of the appellant, filed at the FCT High Court, touched on the primaries held by the APC on the 8th December, 2014, that the suit was filed to enforce the decision/finding already taken by the National Assembly Election Appeal Committee of the APC and which decision had been duly forwarded to the headquarters of the APC for implementation. The implementation of the findings of the Appeal Committee entails forwarding of the

names of the winner of the primary election conducted on 8th December, 2014 to INEC at its headquarters in the FCT. Exhibit I, the senior counsel for the appellant submits, is the report of the appeal committee which must be submitted and which was, in fact, submitted to APC at its headquarter in FCT, Abuja, for implementation. Senior Counsel further submits that the suit was filed to enforce the decision of the appeal committee which was to be implemented in the FCT, Abuja, hence the decision to file the suit at the FCT High Court. The learned Senior counsel submits further that though the facts leading to the report of the appeal committee relate to the primary election held in Gombe State, the cause of action or the act over which the appellant is aggrieved, took place in Abuja. And that by virtue of Order 9 Rule 4(1) and Order 22 Rule 5 of the High Court of the Federal Territory, Abuja (Civil Procedure) Rules 2004 read with Section 257(1) of the 1999 Constitution, as amended. Section 9 of the High Court of the Federal Territory Act and Section 87(9) Electoral Act, 2010 as amended, the High Court of the FCT has jurisdiction to entertain the

appellant’s suit.
The lower Court has, rightly in my view, held, relying on Dalhatu v. Turaki (supra), that the jurisdiction of the High Court of the Federal Capital Territory, Abuja, which is regarded as a State High Court by virtue of Section 299(a) of the 1999 Constitution (as amended) does not extend to matters that arise outside the Federal Capital Territory, Abuja. I also agree with their lordships of the lower Court that each State of the Federation is independent of the Federal Capital Territory, Abuja and vice versa and that the judicial powers of each State are vested in the Courts established for that State. Gombe State and the Federal Capital Territory, Abuja are distinct and independent of each other. It follows, therefore, that this matter which arose in Gombe State and has to do with the parties in Gombe State should have been commenced in the High Court of Gombe State, and not in the FCT High Court. The FCT High Court has, in the circumstance, acted ultra vires in assuming jurisdiction over a cause of action that arose in Gombe State and outside its jurisdiction territory. The proceedings in the suit No. FCT/CV/934/2015 before the

FCT High Court, being incompetent, deserved to be and were correctly struck out by the lower Court. There is no substance in his appeal on this issue… The decision to file this suit in the FCT High Court far away from Gombe State where the cause of action arose cannot be anything but a sheer decision to abuse the judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territory jurisdiction or Court in which a matter or cause may be entertained and adjudicated upon. A typical example of forum shopping, according to Black’s Law Dictionary, is where the plaintiff institutes a suit in the jurisdiction with a reputation for awarding high damages, disdain for political gimmicks or filing several similar suits and keeping the one with the preferred Judge. See also Idemudia v. Igbinedion University, Okada & Ors. (2015) LPELR-24514 (CA). The instant appellant, as the plaintiff, had artfully avoided the High Court of Gombe State, in preference to the FCT High Court, because the former, as it appears may be a forum inconvenience. I say no more. The dictum

of Ogundare, JSC, which I had earlier reproduced, should be sufficient to put their lordships of the FCT High Court on the watch out or guard so that their Courts will not be turned into axis of forum shopping.
Let me quickly deal with the argument of the learned senior counsel to the effect that, by dint of Order 9 Rule 4(1) and Order 22 Rule 5 of the FCT High Court (Civil Procedure) Rules, the FCT High Court can exercise jurisdiction over the cause of action that arose in Gombe State. The law is settled that the jurisdiction of a Court of record, in its board and substantive sense, cannot be conferred by the rules of Court. The rules of Court are only made, pursuant to the powers conferred on the heads of Courts by the Constitution to make rules, to regulate practice and procedure in their respective Courts. The rules they make are only to regulate the practice and procedure in their respective Courts. The rules of Court do not confer jurisdiction on the Court to entertain causes or matters. Rather, the jurisdiction of Courts in Nigeria is either conferred or vested by the Constitution or the enabling statute establishing the Court. This is my understanding of

the dictum of Obaseki, JSC in Clement v. Iwuanyanwu (1989) 4 SC (pt. II) 89; (1989) 3 NWLR (Pt. 107) 39 on the question whether rules of Court confer substantive jurisdiction on the Court they relate to. My answer, therefore, to the submission of the appellant’s senior counsel on this, is that the FCT High Court does not derive any jurisdiction from its rules of practice and procedure to entertain any cause or matter, the dispute in respect of which arose in Gombe State or any other place outside the Federal Capital Territory, Abuja.” See also PDP v. Raheem & Ors (Judgment of 30-5-2019 in CA/A/362/2019.
In the light of the foregoing, I hold that the decision of the trial Court that it had jurisdiction to adjudicate on the suit is wrong. It had no territorial jurisdiction to decide issues concerning a State Congress and election of executives of the Cross River State Chapter of the appellant that held in Cross River State. Therefore its exercise of jurisdiction to hear and determine the suit, and the proceedings therein and the judgment delivered by it are a nullity.
Issue No c (3) is resolved in favour of the appellant.

Having held that the trial Court lacked both the subject matter and territorial jurisdiction to entertain and determine the suit and that the proceedings and judgment of the trial Court are nullities, I do not think that any useful purpose would be served considering issue No. 1 in the peculiar circumstances of this appeal.

On the whole, this appeal succeeds as it has merit. It is accordingly allowed. The entire proceedings and judgment of the High Court of the FCT at Bwari, Abuja in FCT/HC/BW/CV/106/2018 delivered on 13-12-2018 by O.A. Musa J, are hereby set aside.
The respondents shall pay costs of N400,000 to the appellant.

ADAMU JAURO, J.C.A.: I had the opportunity of reading in draft the Judgment, just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in total agreement with reasoning and conclusion contained therein to the effect that the appeal is meritorious and ought to be allowed.
I adopt the said judgment as mine in allowing the appeal, and abide by all consequential orders made including that on costs.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Ikoro K. Ikoro, Esq., with him E. Ani, Esq., Precious Uchendu, Esq., Precious Chukwudi, Esq., For Appellant(s)

Oladele Oyelami, Esq., For Respondent(s)