BENSON v. PDP & ANOR
(2022)LCN/16022(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 06, 2022
CA/ABJ/CV/455/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
PRINCE OMOFE BENSON APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY 2. RICHARD AKANMODE RESPONDENT(S)
RATIO:
APPOINTMENT IN ANY OFFICE OF A PARTY WHERE VACANCY OCCURS
In view of the heavy reliance on the 1st Respondent’s Constitution by the Appellant’s Counsel, I herein reproduce same as follows:
“S47 (6) where a vacancy occurs in any offices of the party, the Executive Committee at the appropriate level shall appoint another person from the Area or Zone where the officer originated from to serve out the tenure of the office.” DANLAMI ZAMA SENCHI, J.C.A.
THE COURTS ARE NOT QUALIFIED ON THE APPOINTMENTS OF PERSONS TO HOLD PARTY OFFICES
Further, a careful perusal of the affidavit evidence of the Appellant at the lower Court, there is no doubt that the dispute pertains to appointment of a Vice-Chairman of the 1st Respondent. And certainly, it is within the domestic purview of the 1st Respondent. In other words, by the affidavit in support of the Originating Summons of the Appellant, the cause of action borders on the domestic affairs of a political party, in this case, the 1st Respondent.
Thus, such dispute or cause of action is not within the competence of law Courts to adjudicate or make appointment of officers or leadership for the political party i.e. the 1st Respondent.
See ABDULKADIR V. MAMMAN (2003)15 NWLR (PT. 839)1 AT 33, where this Court held as follows:
“It is trite law that an intra-party governance is entirely within the province of the party. It is not the role of the Court to make appointments of persons to hold party officers. The question of the candidate a political party will sponsor is more in the nature of a political question which the Courts are not qualified to deliberate upon and answer. See ONUOHA V. OKAFOR & ORS (1983)3 SCNLR 244, BAKAM V. ABUBAKAR, (1991) 6 NWLR (PT. 199) 564.” DANLAMI ZAMA SENCHI, J.C.A.
THE COURT HAS NO JURUSDICTION TO INTERFER THE DOMESTIC AFFAIRS OF A POLITICAL PARTY OR INTRA – PARTY SQUALBES
See also OLAFESO & ORS V. OGUNDIPE & ORS (2018) LPELR-44305 (CA).
Thus, where the dispute or cause of action falls within the domestic affairs of a political party or it has arisen as a result of intra-party squabbles, such dispute or intra-party misunderstanding is said not to be justiciable and hence the jurisdiction of Courts is ousted.
The trial Court was therefore right when it held at pages 490-491 of the record of appeal that “the subject matter of the suit is within the purview of internal or domestic affairs of the 1st Defendant and therefore the Court has no jurisdiction to interfere…” and consequently, the suit was struck out.
The decision of the trial Court cannot be disturbed or upturned. The trial Court was therefore right when it struck out the suit of the Appellant on grounds of jurisdiction without going into the merit of the substantive suit. See AKINJOKUN V. LUTHANSA GERMAN AIRLINES & ANOR (2018) LPELR-46729 and AKPOTI V.A.P.C & ORS (2020) LPELR-51192 (CA). DANLAMI ZAMA SENCHI, J.C.A.
THE PRINCIPLE OF LAW ON THE JURISDICTION OF A TRIAL COURT
The law is trite that where the trial Court is found not to have jurisdiction on a cause or matter, then the appellate Court will also have no jurisdiction to adjudicate on the matter. Hence this Court cannot evoke Section 15 of the Court of Appeal Act, 2004.
See OFODILE V. INEC & ORS (2019) LPELR-48631(CA). DANLAMI ZAMA SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kogi State in Suit No. KCL/97/2020, delivered on the 28th day of June, 2021 coram O. S. A. OBAYOMI J.
The Appellant, as Claimant before the lower Court, commenced this action via an Originating Summons dated 22/10/2020 and filed on 26/10/2020. In his Originating Summons, the Appellant sought the determination of the following questions:
i) Whether the 1st Defendants State Executive Committee (Kogi State Chapter), is not the appropriate body vested with the power to appoint a person to fill a vacancy occurring in the 1st Defendant’s office of Vice-Chairman (Kogi West) before expiration of the tenure of the immediate past occupier of that office, as envisaged by the PDP Constitution, with particular reference to Section 47 Subsection (6) thereof.
ii) Whether the appointment of the Claimant to the 1st Defendant’s office of Vice-Chairman (Kogi West) to fill the vacancy and serve out the remainder of the tenure of his predecessor in that office was not in conformity with Section 47 Subsection (6) of the PDP Constitution.
iii) Whether the appointment of the Claimant to the 1st defendant’s office of Vice-Chairman (Kogi West) can, without more, be undone or reversed by the 1st Defendant or any of the organs, agents or servants after the Claimant had duly accepted the said appointment and started functioning in that office.
iv) Whether the purported nomination of the 2nd Defendant to the 1st Defendant’s office of Vice-Chairman (Kogi West) – long after the Claimant had been duly nominated and appointed to the same office and the Claimant had also started functioning therein – is not unconscionable and therefore null and void and of no effect whatsoever.
(See pages 6-7 of the Record of Appeal)
The Appellant sought, in the event that the foregoing questions are answered in his favour, the following reliefs:
(1) Declaration that by virtue of Section 47 Subsection (6) of the PDP Constitution, the power to appoint a person to fill a vacancy that had occurred in the office of Vice-Chairman of PDP Kogi West Senatorial District [hereinafter referred to simply as “Vice-Chairman (Kogi West)”] is vested exclusively in the Executive Committee of the 1st Defendant (Kogi State Chapter), which is its executive committee “at the appropriate level, “and not in any other organ or functionary of the 1st Defendant
(2) Declaration that the appointment of the Claimant as Vice-Chairman of PDP Kogi West Senatorial District by the 1st Defendant’s Executive Committee (Kogi State Chapter) is in order and in conformity with Section 47 Subsection (6) of the PDP Constitution.
(3) Declaration that having duly accepted his appointment to the 1st Defendant’s office of Vice-Chairman (Kogi West) and actually commenced functioning in that office, the Claimant’s appointment thereto has become a fait accompli and cannot, without more, be undone by the 1st Defendant or any of its organs, agents, servants or privies.
(4) Declaration that it is undemocratic and against the spirit and letters of the PDP Constitution [with particular reference to Section 47 Subsection (6) thereof] for the 1st Defendant or any of its agents, servants or privies to subvert or circumvent; or attempt to subvert or circumvent the duly accomplished appointment of the Claimant to the 1st Defendant’s office of Vice-Chairman (Kogi West).
(5) Declaration that the purported nomination of the 2nd Defendant to the office of Vice-Chairman of PDP Kogi West Senatorial District, long after the nomination and appointment of the Claimant to the same office and the latter had started functioning therein is unconscionable, null and void and of no effect whatsoever.
(6) Declaration that neither the 1st Defendant nor any of its agents, servants or privies is entitled under the circumstances to accord recognition or acceptance under any guise whatsoever to the purported nomination of the 2nd Defendant or appoint the latter to the said 1st Defendant’s office of Vice-Chairman (Kogi West).
(7) An order setting aside the purported nomination of the 2nd Defendant to the office of Vice-Chairman of PDP Kogi West Senatorial District.
(8) A perpetual order or injunction restraining the Defendants, their agents, servants or privies from recognizing or continuing to recognize the purported nomination of the 2nd Defendant and or from appointing the 2nd Defendant to the 1st Defendant’s office of Vite- Chairman (Kogi West) while the Claimant’s appointment to the same office subsists.
(See pages 5-6 of the Record of Appeal)
In support of the Originating Summons is a 26 paragraphs Affidavit filed on 26/10/2020 with exhibits attached.
In response to the Originating Summons, a Notice of Preliminary Objection dated 25/11/2020 was filed on 30/11/2020 by the 1st and 2nd Defendants/Respondents. A five paragraphs Affidavit deposed to by Comfort Omoniyi Ademola Esq., as well as a Written Address were filed in support of the Notice of Preliminary Objection. The Grounds of objection as contained in the 1st and 2nd Respondents’ Notice of Preliminary Objection are as follows:
(1) The Claimant/Respondent lacks locus standi to institute and prosecute this suit.
(2) A non-member of the 1st Defendant cannot maintain an action against the 1st Defendant challenging its actions.
(3) The Claimant did not exhaust the internal mechanism of dispute resolution of the Peoples Democratic Party (PDP) as contained in its Constitution.
(4) The alleged cause of action relates to the internal affairs of the 1st Defendant to which the Honourable Court lacks jurisdiction to entertain.
(5) The Claimant/Respondent has not disclosed any reasonable cause of action.
(6) The suit is frivolous, misconceived, vexatious, speculative and a gross abuse of Court process.
(See pages 291-371 of the Record of Appeal)
The 1st and 2nd Respondents also filed seven paragraphs Counter-Affidavit deposed to by one Comfort Omoniyi Ademola Esq., in opposition to the Claimant’s Originating Summons, as well as a Written Address dated 25/11/2020 and filed on 30/11/2020.
(See pages 372-392 of the Record of Appeal)
The Appellant filed a reply on Points of Law dated 18/12/2020, in response to the Written Address of the Defendants opposing the Originating Summons. (See pages 423-439 of the Record of Appeal). On 22/12/2020, the Appellant filed a seventeen paragraphs Further and Better Affidavit, deposed to by the Appellant himself in support of the Originating Summons; a sixteen paragraphs Counter Affidavit against the Affidavit in Support of the Defendants’ Preliminary Objection.
The brief facts in this case, as can be gleaned from the depositions of parties in their respective Affidavits, pertains to the valid occupant of the position of Vice-Chairman of the Peoples Democratic Party, Kogi West Senatorial District, following the death of Taiwo Kola Ojo Esq., who had occupied the said position but died before the expiration of his tenure.
In delivering his judgment, the learned trial Judge upheld the Preliminary Objection of the 1st and 2nd Respondents and struck out the suit for want of jurisdiction. (see pages 448 – 495 of the Record of Appeal).
Dissatisfied with the decision of the lower Court, the Appellant, on 9/7/2021, filed a Notice of Appeal on the following five Grounds reproduced hereunder though (without their particulars):
GROUND ONE
The learned trial Judge erred in law when he held at page 47 of the judgment thus:
“Having come to the conclusion that this Court lacks jurisdiction to entertain the suit by upholding the Defendant’s preliminary objection, it will become academic to consider the merit of this case…”
And at page 48 of the judgment thus:
“Further still, once a Court strikes out a case for want of jurisdiction it cannot consider the matter on the merit in the alternative.”
And thereby occasioned a miscarriage.
GROUND TWO
The learned trial Judge erred in law when he held at page 39 of the judgment thus:
“It is my considered view that fulfilment of condition precedent to the exercise of jurisdiction is not an infraction of the fundamental right of a person to access the Court to ventilate his grievances particularly where it is clearly provided for in a statute as in the 1st Defendant’s Constitution (Supra) which the Claimant subscribed to.”
And further on the same page thus:
“The long and short of all I have been saying is that although the Claimant has unhindered access to the Court by virtue of Sections 36(1) and 271 of the 1999 Constitution (As Amended), he has to comply with Sections 60(1) & (2) and 61(1) of the 1st Defendant Constitution (Supra) before he can institute any suit and I so hold. His failure to comply has robbed this Court of the requisite jurisdiction to entertain the suit…”
And thereby breached the Appellant’s Right to fair hearing which occasioned a grave miscarriage of justice.
GROUND THREE
The learned trial Judge erred in law when he held at page 41 of the judgment thus:
“It must be stressed here that the instant case is not an election into the office of the Vice-Chairman of the West Senatorial District but a replacement by appointment which is within the power and prerogative of the 1st Defendant. In my considered view, the core issue of this suit qualifies as a domestic affair of the 1st Defendant as a registered political party and I so hold…”
And also at page 43 of the judgment when he held thus:
“In the instant case, it is not a case relating to Section 87(9) of the Electoral Act 2010 (As Amended) or an infraction of the provisions of the PDP Constitution. Also, it is not an issue of election of a candidate but an appointment to the leadership position of the 1st Defendant and therefore a domestic affair of the 1st Defendant in which the Court cannot interfere and I so hold. Flowing from all I have said on this ground, it is my considered view that the subject matter of this suit is within the purview of the internal or domestic affairs of the 1st Defendant and therefore this Court has no jurisdiction to interfere, particularly so that the claim of the Claimant is not on any infraction of the Electoral Act or the provisions of the 1st Defendant’s Constitution…” Which occasioned a miscarriage of justice.
GROUND FOUR
The learned trial Judge erred in law when he held that the Appellant’s suit is not justiciable and constitutes an abuse of Court process and thereby struck out same which occasioned a miscarriage of justice.
GROUND FIVE
The judgment is against the weight of evidence.
(See pages 496 – 502 of the Record of Appeal).
The Appellant’s Brief of Argument dated 2/8/2021 was filed on 3/8/2021. The Respondents’ Brief of Argument dated 11/10/2021 was filed on 13/10/2021. The Appellant’s Reply Brief of Argument dated 29/11/2021 was filed on 30/11/2021 but deemed properly filed on 7/2/2022.
ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument which was settled by Kolawole Olowookere Esq., the following issues were raised for the determination of this appeal:
(1) Whether the Appellant’s Right to access to Court can be hindered by the provision of Section 60(1) & (2) and 61(1) of the 1st Defendant’s Constitution, particularly where the Appellant’s grievances relates to a breach of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). (Distilled from Grounds 2 of the Notice and Grounds of Appeal)
(2) Whether the appointment into the office of the Vice-Chairman of Kogi West Senatorial District of the 1st Respondent is a domestic affair of the 1st Respondent notwithstanding the provision of Section 47(6) of the 1st Respondents Constitution (As Amended) and Section 222 to 224 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). (Distilled from Ground 3, 4, 5 of the Notice and Grounds of Appeal)
(3) Whether the learned trial Judge was right when he failed to consider the merit of the case after declining jurisdiction to entertain the suit and upholding the Respondent’s Preliminary Objection. (Distilled from Ground 1 of the Notice and Ground of Appeal)
In the Respondents’ Brief of Argument which was settled by S.M. John-Mark Esq., the following lone issue was raised for the determination of this appeal:
Whether the trial Court was right in upholding the preliminary objection of the Respondents and consequently, striking out the Appellant’s suit for lack of jurisdiction. (Distilled from Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal). ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUES 1 & 2
At paragraphs 4.02 – 4.29 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that Political Parties in Nigeria are regulated by the provisions of the 1999 Constitution, the Electoral Act and each Party’s Constitution and a breach of these statutes constitutes a legal breach which may confer on a victim a right to access the Court. He submitted further that the action of the 1st Respondent in seeking to fill the erstwhile vacancy of the office of the Vice Chairman of the 1st Respondent in Kogi West Senatorial District on account of the death of without complying with Section 47(6) of her Constitution, is in violation of Sections 222, 223 and 224 of the 1999 Constitution; thus, the instant case is outside the purview of the internal affairs of the 1st Respondent. He submitted further that in nominating and seeking the appointment of the 2nd Respondent to the position to which the Appellant had already been appointed, the 1st Respondent seeks to take over the function of the state executive committee which is mandated at the state level to appoint another person to serve out the term of the deceased; and in appointing another person from a ward other than that of the deceased, the 1st Respondent is in breach of its Constitution. He relied on the cases of LAU V. PDP & ORS (2017) LPELR-42800 (SC) and AMAECHI V. INEC & ORS (2008) LPELR.
At paragraphs 4.30 – 4.33 of the Appellant’s Brief of Argument, learned Counsel to the Appellant contended to the effect that contrary to the holding of the learned trial Judge on the applicability of Section 60 and 61 of the 1st Respondent’s Constitution, it is of no moment that the Appellant did not exhaust the internal dispute resolution mechanism of the 1st Respondent before instituting this suit. He contended further that the issue in contention touches on the infringement of the Constitution itself, thus, the Appellant has a right to access the Court to ventilate his grievances as captured in his Originating Summons, and the trial Court had jurisdiction to hear and determine the suit, as same is under an exception to the general rule that the Courts have no jurisdiction over the internal affairs of political parties.
APPELLANT’S ISSUE 3
At paragraphs 5.02 – 5.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that by not pronouncing on the merit of the case, the learned trial Judge did not follow the appropriate procedure to be adopted where an objection is raised to the jurisdiction of the Court in a matter commenced by Originating Summons. He submitted that the trial Court ought to have pronounced on the merit of the case rather than avoid the substantive suit after upholding the preliminary objection of the Respondent. He relied on the cases of YARADUA & ORS V. YANDOMA & ORS (2014) LPELR-24217 (SC); ADELEKE V. OSHA (2006)16 NWLR (PT. 1096) 508 and DAPIALONG & ORS V. JOSHUA DARIYE & ANOR (2007) LPELR 928 (SC).
Counsel to the Appellant submitted at paragraphs 5.11 – 5.26 of the Appellant’s Brief of Argument to the effect that where this Court holds that the trial Court was wrong in declining jurisdiction, this Court can invoke the powers under Section 15 of the Court of Appeal Act to proceed to determine this appeal on the merit and to grant all the reliefs sought by the Appellant in his Originating Summons. He relied on the cases of INAKOJU V. ADELEKE & ORS (2007) NGS 30 and NICON V. POWER AND INDUSTRIAL ENGINEERING CO. LTD (1990)1 NWLR (PART 129) 697.
In conclusion, learned counsel to the Appellant urged this Court to allow this appeal, set aside the judgment of the trial Court, hear the Originating Summons and grant all the reliefs sought by the Appellant in the Originating Summons.
RESPONDENTS’ SUBMISSIONS
At paragraphs 4.1 – 4.4 of the Respondents’ Brief of Argument, learned Counsel to the Respondents submitted to the effect that the learned trial Court was right in upholding the preliminary objection of the Respondents and consequently striking out the Appellant’s suit for lack of jurisdiction. He submitted further that the jurisdiction of a Court is determined entirely on the issues submitted to the Court by the Plaintiff for determination and such jurisdiction connotes the limits which are imposed upon the Court’s powers to hear and determine issues between persons seeking to avail themselves of its process. He relied on the cases of UKUT & ORS V. APC & ORS (2019) LPELR-47203 (CA) and OLAFESO & ORS V. OGUNDIPE & ORS (2018) LPELR-44305.
At paragraphs 4.6 – 4.27 of the Respondents’ Brief of Argument, Counsel submitted to the effect that an appeal is a continuation of the case at the lower Court and a party cannot set up a case different from what it placed before the lower Court which must be borne out of the pleadings on the record. He referred this Court to the cases of AGI V. PDP & ORS (2016) LPELR-42578 (SC) and ONWERE V. NWAZUO & ORS (2012) LPELR-208338 (CA). He submitted further that the provisions of Sections 222, 223 and 224 of the Constitution relied on by the Appellant have no bearing whatsoever on the facts of the present appeal, as the present appeal does not relate to registration or restriction on formation of the 1st Respondent as a political party, neither do they relate to the 1st Respondent not providing for periodic election on a democratic basis or the aims and objectives of the 1st Respondent, rather, the Appellant’s cause of action relates to filling of the vacant position of the office of the Vice-Chairman, Kogi West Senatorial District. Counsel submitted further that the Appellant’s cause of action, being one that bothers on the domestic affairs of the 1st Respondent, a registered Political Party, the Court cannot adjudicate on it. He relied on the cases of ABDULKADIR V. MAMMAN (2003)14 NWLR (PT. 839), OLAFESO & ORS V. OGUNDIPE & ORS (SUPRA) and UFOMBA V. INEC & ORS (2017) LPELR-42079 (SC) PAGES 46-48.
At paragraph 4.28-4.35 of the Respondents’ Brief of Argument, Counsel to the Respondents submitted to the effect that contrary to the submission of the Appellant that it is of no moment that the Appellant did not exhaust the internal dispute resolution mechanism of the 1st Respondent in line with Sections 60(1) & (2) and 61(1) of the 1st Respondent’s Constitution before instituting his suit at the trial Court, the Appellant’s suit has nothing to do with breach of constitutional provisions but relates to an internal or domestic affair of the 1st Respondent. He submitted further that the said sections of the 1st Respondent’s Constitution create a condition precedent, and the Appellant ought to have first exhausted the internal dispute resolution stated therein before instituting his suit at the trial Court, failure of which the trial Court was right to have declined jurisdiction.
At paragraph 4.35 – 4.39 of the Respondents’ Brief of Argument, Counsel submitted to the effect that the argument of the Appellant that the trial Judge ought to have pronounced on the merit of the Appellant’s case rather than avoid the substantive suit after upholding the preliminary objection of the Respondents is unfounded in law and the trial Court was right in failing to consider the suit on merit, doing so will only amount to an exercise in futility, having declined jurisdiction. He relied on the cases of AKINJOKUN V. LUFTHANSA GERMAN AIRLINES & ANOR (2018) LPELR-46729 (CA) (PP 30, PARAS B-C) and AKPOTI V. APC & ORS (2020) LPELR-51192 (CA) (PP 42-50, PARAS D-F).
At paragraph 4.40 – 4.41 of the Respondents’ Brief of Argument, Counsel to the Respondents submitted to the effect that the Appellant’s Cause of Action is not justiciable, hence, this Court should decline the invitation of the Appellant to invoke its powers under Section 15 of the Court of Appeal Act. He submitted further that since the trial Court lacks jurisdiction to entertain the Appellant’s suit ab initio, this Court will also lack jurisdiction to entertain same. Counsel relied on the case of OFODILE V. INEC & ORS (2019) LPELR-48631 (CA) (PP 48 PARAS B-F).
In conclusion, learned Counsel to the Respondents urged this Court to dismiss this appeal with substantial cost.
APPELLANT’S REPLY ON POINTS OF LAW
At paragraphs 2.1 – 2.8 of the Appellant’s Reply Brief of Argument, learned Counsel to the Appellant submitted to the effect that contrary to the Respondent’s submissions at paragraphs 4.5-4.9 of the Respondent’s Brief of Argument, the Appellant’s case both in this Court and the trial Court is one and the same and the case set up before the trial Court clearly is a challenge to the intended arbitrary and non-democratic approach adopted by the 1st Respondent, intended to upset an earlier democratic process which was adopted and concluded with the appointment of the Appellant. In submitting that the case of the Appellant has been consistent, Counsel referred this Court to paragraph 4 of the reliefs sought in the Originating Summons, paragraph 9-26 of the Affidavit in support of the Originating Summons. He submitted that the depositions at paragraph 4(h) – (k) of the Respondents’ Counter-Affidavit to the Originating Summons confirmed the genuiness of the process which led to the appointment of the Appellant being a popular, all-inclusive process.
In response to the arguments at paragraph 4.10-4.21 of the Respondents’ Brief of Argument, learned Counsel to the Appellant submitted that once the action of any Political Party breaches any provision of the Constitution of the party or the Constitution of the Country or both as in this case, it ceases to be classified as an internal affair of the party which is not justiciable, and becomes a constitutional breach which is justiciable. He relied on the cases of OGWULEGBO & ORS V. PDP (2021) LPELR-54713 (CA), AGI V. PDP (2017) NWLR (PT. 1595) 386, GANA V. SDP (2019) LPELR-47153 (SC), APC V. LERE (2020)1 NWLR (PT 1705) 298. Counsel submitted further that nothing in a party’s Constitution can override or be superior to the Constitution of Nigeria, hence, a breach of a constitutional provision as in this case must be justiciable.
Learned Counsel to the Appellant submitted in response to the arguments at paragraphs 4.28 – 4.35 of the Respondents’ Brief of Argument that the provisions of Section 60(1) and (2) of the 1st Respondent’s Constitution will be inapplicable where the Appellant’s complaint relates to the breach of the Party’s Constitution or the breach of the Constitution of the Federal Republic of Nigeria.
Counsel contends further at paragraphs 2.14-2.15 of the Appellant’s Reply Brief of Argument to the effect that a trial Judge ought to give a pronouncement on the substantive suit where a suit is commenced by an Originating Summons. He relied on the case of BRAWAL SHIPPING (NIG) LTD V. F. I. ONWADIKE CO. LTD & ORS (2000)11 NWLR (PT. 678) 387 at 403.
In conclusion, he urged this Court to allow this appeal and grant the reliefs sought by the Appellant.
RESOLUTION OF ISSUES
I will determine this appeal based on the issues submitted for determination by the Appellant’s counsel and thereunder I will consider and determine the lone issue distilled for determination by the Respondents’ counsel. I will therefore take Issues 1, 2 and 3 of the Appellant together.
ISSUES 1, 2 AND 3
The arguments of counsel to the Appellant is to the effect that by the appointment of the Appellant into the office of the vice-chairman of Kogi West Senatorial District, a position that was vacant as a result of the death of the Appellant’s predecessor has become occupied and the Respondent’s attempt to re-appoint another person into the now occupied position is contrary to Section 47 (6) of the 1st Respondent’s Constitution as well as on a collusion course with Sections 222, 223 and 224 of the Constitution of the FRN 1999 (as amended).
In view of the heavy reliance on the 1st Respondent’s Constitution by the Appellant’s Counsel, I herein reproduce same as follows:
“S47 (6) where a vacancy occurs in any offices of the party, the Executive Committee at the appropriate level shall appoint another person from the Area or Zone where the officer originated from to serve out the tenure of the office.”
By the Affidavit in support of the Originating Summons especially paragraphs 7-17 of the said Affidavit, the Appellant avers before the trial Court facts that essentially borders on appointment to replace the position of Vice-Chairman of the 1st Respondent in Kogi West, the position that was vacant as a result of the death of the former occupant. For the purposes of clarity, I hereby reproduce paragraphs 7-17 of the Appellant as follows:
“7. That the 1st Defendant’s office of Vice Chairman (Kogi West) was formally occupied by one Barrister Taiwo Kola Ojo. But that unfortunately, he died sometime in January 2020, which therefore led to a vacancy in the said office.
8. That the said Barrister Taiwo Kola Ojo (deceased) originated from the same Okoro-Odokoro-Araromi Ward of Ijumu LGA as my humble self.
9. That I was duly nominated by my Okoro-Odokoro-Araromi Ward of Ijumu LGA for appointment to the vacant office of Vice Chairman (Kogi West) to fill the vacancy that had occurred therein due to the death of the said Barrister Barrister Taiwo Kola Ojo (deceased).
10. That my nomination was duly communicated to the Chairman of the 1st Defendant’s Executive Committee in Ijumu LGA through a letter dated 16th June, 2020. A copy of the said letter is attached hereto and marked as Exhibit “P2”.
11. That Exhibit P2 was duly signed by all the members of the 1st Defendant’s Ward Executive Committee in my Okoro-Odokoro-Araromi Ward of Ijumu LGA.
12. That Exhibit P2 was followed by a joint Resolution of the 1st Defendant’s Ijumu LGA Executive Committee and a majority of the Party’s Ward Executive Committees in the LGA, wherein my nomination as contained in Exhibit P2 was duly affirmed and ratified. A copy of the said joint Resolution, dated 5/8/2020, is hereby attached and marked as Exhibit “P3”.
13. That the principal members of 13 out of the 15 Ward Executive Committees of the 1st Defendant in Ijumu LGA affirmed and ratified my nomination in Exhibit P2 by appending their individual signatures to Exhibit P3.
14. That the fact of my nomination as reflected in Exhibits P1 and P2 was duly approved by the 1st Defendant’s Kogi West SDEC in a letter dated 10/8/2020 and addressed to the Chairman of the 1st Defendant’s Executive Committee (Kogi State Chapter). A copy of the said letter is annexed hereto and marked as Exhibit P4.
15. That the fact of my nomination and confirmation/ratification of same through Exhibits P2-P4 was also duly affirmed and ratified by the PDP State Executive Committee (Kogi State Chapter) at separate meetings held by the Committee on 11/8/2020 and 9/9/2020 respectively. Copies of the resolution of the Committee emanating from the said meetings and the communiques issued pursuant thereto are annexed hereto and marked as Exhibit “P5”.
16. That following the ratification of my nomination as reflected in Exhibit P5, the Executive Committee of the 1st Defendant (Kogi State Chapter), in exercise of its power under Section 47 Subsection (6) of the 1st Defendant’s Constitution, issued to me a letter of appointment to the office of Vice Chairman (Kogi West). A copy of my said letter of appointment, dated 12/8/2020, is annexed hereto and marked as Exhibit “P6”.
17. That according to Exhibit P6. My appointment as the 1st Defendant’s Vice Chairman (Kogi West) was to complete or serve out the remainder of the tenure of my deceased predecessor, Barrister Taiwo Kola Ojo.”
I have also seen the averments of the 1st & 2nd Respondents especially at paragraphs 4 and 5 of their Counter Affidavit wherein they deposed thus:
“4… I was informed by the 1st Defendant’s State Chairman, Engr. (Dr) Samuel Uhuotu of the following facts which I verily believe to be true and correct:
(g) That the office of the Vice Chairman, Kogi West Senatorial District became vacant after the death of its occupant, Barr. Taiwo Kola Ojo of Ijumu Local Government Area of Kogi State who passed on in January, 2020,
(h) That apart from the death of Barr. Taiwo Kola Ojo who was the Vice Chairman of Kogi West Senatorial District, the 1st Defendant within the same period also lost two other party officers i.e. Party Chairman of Idah Local Government Area and the Assistant State Legal Adviser who was from Ajaokuta Local Government Area of Kogi State.
(i) That in his capacity as the Kogi State Chairman of the 1st Defendant, he set up a Committee which consisted of some members of the State Exco to liaise with relevant stakeholders from the affected zones and look into the replacement of the three party officers who had passed on in line with the Constitution of the 1st Defendant.
(j) That the committee swung into action and thereafter came up with three (3) names for replacement of the three vacant portfolios which were Prince Benson Omofe (the Claimant) for the Office the Office of Vice Chairman, Kogi West Senatorial District, Ibrahim Abdulmumini for the office of Assistant State Legal Adviser, and Abu Musa for Party Chairman, Idah Local Government Area.
(k) That he honestly believed the committee had met with all the relevant stakeholders in Kogi West Senatorial District before proposing the name of the Claimant and it was on that basis that he signed and issued appointment letter to the Claimant along with the other nominated party officers, Ibrahim Abdulmumini and Abu Musa on 12th August, 2020.
(l) That shortly after the appointment of the Claimant became public, he received about 20 statutory members of the Kogi West Senatorial District Executive Committee and the Kogi West Senatorial Caucus who informed him that they were never consulted in the nomination and appointment of the Claimant contrary to the 1st Defendant’s Constitution.
(m) That they also informed him that the committee he had earlier set up to look into the replacement of the afore-stated vacant offices never consulted with them neither was there any meeting of the Senatorial District Caucus where the Claimant was nominated for appointment as Vice Chairman of Kogi West Senatorial District.
(n) That the same set of party members also met the members of the 1st Defendant’s National Executive Committee to register their displeasure.
(o) That it was on the basis of the afore-stated paragraphs that the 1st Defendant’s State Executive Committee scrutinized all the purported resolutions nominating the Claimant which the Claimant have annexed as Exhibits P2, P3 and P4.
(p) That it was discovered that Exhibits P2 and P3 were incompetent and invalid as the nomination to appoint or select a replacement for the vacant office of Vice Chairman of Kogi West Senatorial District cannot be done at either the Ward or Local Government level in the absence of any express instruction to do so from the Senatorial District Executive Committee or the Senatorial District Caucus.
(q) That the appropriate Executive Committee to appoint and/or fill the vacant position of Vice Chairman, Kogi West Senatorial District is the Kogi West Senatorial District Executive Committee subject to the ratification of the Kogi West Senatorial District Caucus and further ratification by the State Executive Committee as the vacant position is a Senatorial District office.
(r) That the appointment/replacement to fill the vacancy in the office of Vice Chairman of Kogi West Senatorial District cannot be done at either the Ward or Local Government level but at the Senatorial District Level.
5. … I was informed by S. M. John Mark Esq., the State Legal Adviser of the 1st Defendant and I verily believe him as follows:
(a) …
(b) That the alleged cause of action of the Claimant/Respondent relates to the internal affairs of the 1st Defendant to which the Honourable Court lacks jurisdiction to entertain.”
I have also seen the averments in the further & better Affidavit of the Appellant which averments indeed re-echoed the earlier averments contained in the Affidavit supporting the originating Summons. Thus, as I said earlier, from the Affidavit in support of the Appellant’s Originating Summons, the Appellant’s alleged cause of action relates to the vacant position of the Vice-Chairman, Kogi West Senatorial District of the 1st Respondent.
Now if the Appellant is alleging the breach of Section 47 (6) of the 1st Respondent’s Constitution, from the affidavit evidence in support of Originating Summons, did the Appellant comply with Sections 60(1) and (2) and 61 (1) of the 1st Respondent’s Constitution to reactivate the jurisdiction of the lower Court? The sections provide as follows:
“60 (1) If any member of the party is aggrieved, he shall report to the appropriate authority.
(2) If he or she is not satisfied, an appeal shall lie within the next higher authority?
61(1) Any member of the party who is aggrieved by a decision taken against him by any organs or officers of the party shall have the right of appeal to the immediate higher organs of the party within 14 days of the decision.”
As rightly held by the lower Court at pages 484 – 485 of the Record of Appeal that by the combine effect of Sections 60 (1), (2) and 61 (1) of the 1st Defendant’s Constitution, the claimant who is an aggrieved person ought to have approached the immediate higher Organ of the party within 14 days before resorting to Court.
The finding of the lower Court is correct in that to invoke the jurisdiction of the lower Court and indeed this Court, the Appellant must fulfil the conditions precedent and then challenge the 1st Respondent of non-compliance with Section 46(6) of its Constitution on conditions precedent to initiating an action. See plethora of judicial authorities cited therein.
See MADUKOLU V. NKEMDILIM (1962) 1 ACL NLR 587 AT 595.
Further, a careful perusal of the affidavit evidence of the Appellant at the lower Court, there is no doubt that the dispute pertains to appointment of a Vice-Chairman of the 1st Respondent. And certainly, it is within the domestic purview of the 1st Respondent. In other words, by the affidavit in support of the Originating Summons of the Appellant, the cause of action borders on the domestic affairs of a political party, in this case, the 1st Respondent.
Thus, such dispute or cause of action is not within the competence of law Courts to adjudicate or make appointment of officers or leadership for the political party i.e. the 1st Respondent.
See ABDULKADIR V. MAMMAN (2003)15 NWLR (PT. 839)1 AT 33, where this Court held as follows:
“It is trite law that an intra-party governance is entirely within the province of the party. It is not the role of the Court to make appointments of persons to hold party officers. The question of the candidate a political party will sponsor is more in the nature of a political question which the Courts are not qualified to deliberate upon and answer. See ONUOHA V. OKAFOR & ORS (1983)3 SCNLR 244, BAKAM V. ABUBAKAR, (1991) 6 NWLR (PT. 199) 564.”
See also OLAFESO & ORS V. OGUNDIPE & ORS (2018) LPELR-44305 (CA).
Thus, where the dispute or cause of action falls within the domestic affairs of a political party or it has arisen as a result of intra-party squabbles, such dispute or intra-party misunderstanding is said not to be justiciable and hence the jurisdiction of Courts is ousted.
The trial Court was therefore right when it held at pages 490-491 of the record of appeal that “the subject matter of the suit is within the purview of internal or domestic affairs of the 1st Defendant and therefore the Court has no jurisdiction to interfere…” and consequently, the suit was struck out.
The decision of the trial Court cannot be disturbed or upturned. The trial Court was therefore right when it struck out the suit of the Appellant on grounds of jurisdiction without going into the merit of the substantive suit. See AKINJOKUN V. LUTHANSA GERMAN AIRLINES & ANOR (2018) LPELR-46729 and AKPOTI V.A.P.C & ORS (2020) LPELR-51192 (CA).
The law is trite that where the trial Court is found not to have jurisdiction on a cause or matter, then the appellate Court will also have no jurisdiction to adjudicate on the matter. Hence this Court cannot evoke Section 15 of the Court of Appeal Act, 2004.
See OFODILE V. INEC & ORS (2019) LPELR-48631(CA).
In conclusion therefore, all the three issues are hereby resolved against the Appellant and in favour of the Respondents. The appeal therefore lacks merit and it is accordingly dismissed. The decision of the trial Court in suit No. HCL/97/2020 delivered on Monday, the 28th day of June, 2021 by O.S.A. OBA YOMI, J. is hereby affirmed.
No award as to cost.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother- DANLAMI ZAMA SENCHI, JCA.
I agree with his reasoning and conclusion contained in the leading judgment that the appeal lacks merit and is dismissed. The judgment of the trial Court in Suit No. HCL/97/2020 delivered on the 28th day of June, 2021 by Honourable Justice O. S. A. OBA YOMI is affirmed.
There is no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I read before now the draft copy of the judgment just delivered by my learned brother, DANLAMI ZAMA SENCHI, JCA. I agree with the reasons adduced in the lead judgment in dismissing the appeal.
I too dismiss the appeal and affirm the judgment of the trial Court delivered on Monday, the 28th day of June, 2021 by O.S.A. OBAYOMI, J. in Suit with No. HCL/97/2020.
I abide by all the consequential orders.
Appearances:
Kolawole Olowookere, Esq., with him, V. O. Yusuf, Esq. and F. S. Onifade, Esq. For Appellant(s)
S. M. John-Mark, with him, Chris Mike Uche, Esq. and Olakunle Lawal, Esq. For Respondent(s)