CHIEF (BARR) BLESSING OHWAVBORUA & ORS V. PEOPLES DEMOCRATIC PARTY & ORS
(2013)LCN/6402(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2013
CA/B/81/2012
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1) CHIEF (BARR) BLESSING OHWAVBORUA
2) ATAGANA LONGE PHILIPA
3) CHIEF ENAMUOTOR JUDITH
4) DR. AKWARA JOHN Appellant(s)
AND
1) PEOPLES DEMOCRATIC PARTY (PDP)
2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3) BARR. A.S. EMEYESE Respondent(s)
RATIO
WHETHER THE JURISDICTION OF THE FEDERAL HIGH COURT ON QUESTIONS OF NOMINATION AND SELECTION OF POLITICAL CANDIDATES SUBSIST AFTER THE CONDUCT OF GENERAL ELECTIONS
The main issue in this Notice to Contend by the Applicant (1st Respondent) is whether the jurisdiction of the Federal High Court on the questions of nomination and selection of candidates subsist after the conduct of the general elections, which the Applicants maintains that after the conduct of general elections, such actions are already spent. The Appellants maintained such questions remain live issues even after the conduct of the general elections and relied on some judicial authorities. The Supreme Court has since settled this question. The apex court provided a guide for the courts to follow.
(1) Go back to the Originating Summons to see the date in which it was filed in court.
(2) If the Originating Summons was filed prior to the conduct of the general elections, it remains a pre-election issue, which can be challenged up to the Supreme Court.
(3) If the Originating Summons was filed after a general election the question of nomination which is a pre-election matter ceases to exist leaving only the election proper to be questioned and the proper place to do so is the Election Tribunal not the High Court which has no jurisdiction to entertain such action. See the decision of the Supreme Court in Salim V. CPC (2013) 6 NWLR (Pt. 135) 501 at 523 – 524 Paras E – B, 524, Para H; 525 Paras A – B, on proper forum to raise issue of nomination after general election. The apex court held:
“After a general election, the question of nomination, which is a pre-election matter ceases to exist leaving only the election proper to be questioned and the proper place to do so is the election tribunal not the High Court which has no jurisdiction to entertain such on action where the election has taken place any grievance arising from the nomination exercise can only be entertained by the election tribunal on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the elections. In the instant case, the trial High Court no longer had the power to adjudicate over disputes concerning nomination of the candidates for the election of 9th April 2011. Therefore, the trial court was right in declining jurisdiction over the matter, (Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547; Tanimola v. Surveys Mapping Godatta Ltd. (1995) 6 NWLR (pt. 403) 617; Ogbonna V. President, F.R.N. (1997) 5 NWLR (pt. 504) 281; Ndulue V. Ibezim (2002) 12 NWLR (Pt. 780) 139 referred to.” PER BAGE, J.C.A.
THE PURPOSE OF AN AMENDEMENT
The Supreme Court in the case of Chief Adedapo Adekeye & Anor V. Chief O.B. Akin-Olugbade (1987) 6 S.C. 268 at 280 – 281 stated as follows:
“An Amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity and which is done either as of course or by the consent of parties or upon notice to the court in which the proceeding is pending. The object of courts is to decide the right of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they occur with disturbing regularity, but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant…” PER BAGE, J.C.A.
WHETHER OR NOT THE COURT CAN GRANT AN INJUNCTION TO STOP A CONCLUDED ACT
It is trite law that a court of law cannot grant an injunction or a restraining order to stop a concluded act. See: – Iheanacho V. Ekpahuru Ideozu (2006) 2 SC (Pt. 11) 113 at 132 lines 15 – 40. The Appellant never asked the lower court for a perpetual injunction and the lower court could not have granted any, being not a charitable organization (NGO). See: – Mallam Saidi Amori V. Yakubu Iyanda (2008) 3 NWLR (Pt. 1074) 250 at 283 Para G; Alh. Garba Mohammed Gadi V. Barr. Babayo A. Male (2010) 7 NWLR (Pt. 1193) 225 at 275 Para D, Paras E – G. PER BAGE, J.C.A.
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon Justice Buba of the Federal High Court sitting at Asaba, which was delivered on the 2nd of November 2011. In the said Judgment, the learned trial Judge dismissed the Appellants’ Originating Summons, wherein it had challenged the nomination of the 3rd Respondent as the candidate of the 1st Respondent for the 2011 General Election into the Ethiope Federal Constituency of Delta State.
The Appellants commenced this action vide an Amended Originating Summons filed on the 14th day of June 2011. The Appellants formulated five (5) issues before the lower court for its determination and thereafter sought for the grant of five (5) reliefs. The questions formulated for determination and the reliefs sought are as follows:
(1) Whether having regards to the extant provisions of the Electoral Act 2010 and the 1st Defendant’s Electoral Guideline 2010, it is not mandatory for the 1st Defendant to hold primaries for aspirants for all elective position.
(2) Whether by the extant provision of Section 87 (4) paragraph (C) (i) of the Electoral Act 2010, it is not mandatory for the 1st Defendant to hold special congress in the Federal Constituency with delegates voting for each of the aspirants in designated centres on specified dates.
(3) Whether having regards to the extant provisions of the electoral act the 1st Defendant’s Guidelines and Code of Conduct and 1st Defendant’s flagrant disregards of the Electoral Act, the Plaintiff has the locus to seek redress in this honourable court,
(4) Whether under the extant provisions of the Electoral Act 2010, it is unlawful for the 1st Defendant to submit the name of an aspirant without conducting any primaries or a re-run.
(5) Whether the 2nd Defendant under the Electoral Act can include the name of the forwarded aspirant for the position in issue.
RELIEFS
(i) A declaration that under the Provisions of Section 87 (4) (c) (i) of the Electoral Act 2010, the 1st Defendant is bound to hold primaries for aspirants into elective position.
(ii) A declaration that the 1st Defendant cannot submit the name of an aspirant without holding a special congress in the Federal Constituency with delegates voting for each aspirant at a designated voting centre.
(iii) An order restraining the 2nd Defendant from accepting the name of any aspirant submitted by the 1st Defendant until a re-run primaries is called and held at the Ethiope Federal Constituency of Delta State.
(iv) An order of injunction restraining the rd defendant from accepting specifically the name of Hon. (Barr.) A.S. Emeyese as 1st Defendant’s Aspirant for the Ethiope Federal Constituency until a re-run primaries is called and held.
(v) An order restraining the 2nd defendant from including for election the name of the forwarded aspirant Hon. (Barr.) A.S. Emeyese for the Ethiope Federal Constituency of Delta State.
The Appellants had invoked the Provisions of Section 87(4)(c)(i) of the Electoral Act 2010 as amended, in urging the lower court to nullify the nomination of the 3rd Respondent as the 1st Respondent’s candidate for the said election.
The notice and grounds of appeal dated and filed 14th day of February 2012, containing six grounds are hereunder reproduced, shorn of their particulars inter alia:
“GROUND ONE:
The learned trial judge erred in law, when he held that the 1st Respondent complied with the provisions of Section 87(4)(c)(i) of the Electoral Act (as amended) with respect to nomination of the 3rd Respondent as its candidate for the election into the House of Representatives, Ethiope Federal Constituency.
GROUND TWO:
The learned trial judge erred in law when he held that the Appellants failed to discharge the burden of proof placed on them to show that the 1st Respondent did not conduct any primary before selecting the 3rd Respondent as its candidate for the election into the Ethiope Federal constituency.
GROUND THREE:
The learned trial Judge misdirected himself on the law and fact of this case, when he failed to properly evaluate the affidavit and documentary evidence placed before him by the Appellants in proof of their case thereby arriving at perverse findings of facts in his Judgment to the detriment of the Appellants herein.
GROUND FOUR:
The learned trial Judge erred in law when after striking out the interlocutory Applications filed by the Appellant in this suit; he proceeded to rely on the Affidavits attached thereto in reaching his findings of facts in the substantive claims before him.
GROUND FIVE:
The learned trial Judge erred in law by failing to properly evaluate the affidavit evidence before him thereby resulting in his perverse findings of facts not supported by the evidence before him.
GROUND SIX:
The learned trial Judge erred in law, when he abandoned the questions for determination submitted by the Appellant to the court, and proceeded to dwell on extraneous issues not related to the said questions, thereby occasioning gross miscarriage of justice.”
Having regards to the Grounds of Appeal filed in this appeal, the Appellants formulated the following three (3) issues for determination as follows:-
(1) “Whether the learned trial judge properly evaluated the evidence before him before reaching his verdict that the 1st Respondent did conduct primaries for the election of the 3rd Respondent as its candidate for Ethiope Federal Constituency Election for 2011?
(2) Whether by the tenor of section 87 (4) (c) (i) of the Electoral Act 2010 as amended, the 1st Respondent was not under a legal obligation to conduct primaries before selecting the 3rd Respondent as its candidate for election into the Ethiope Federal Constituency?
(3) Whether learned trial Judge fully appreciated the questions formulated for determination by the Appellants and whether he resolved them as required by law?”
On the other hand, 1st Respondent formulated a sole issue for determination to wit:
“Whether giving the totality of the Plaintiffs case and the affidavit evidence before the court, the learned trial Federal High Court was right when it held that the Plaintiffs case lacked merit and should be dismissed.”
The 2nd Respondent formulated the following three (3) issues for determination as follows:
(1) “Whether on the contrary, it is not the Appellants who had admitted the case of the 2nd Respondent?
(2) Whether the Honourable Court has jurisdiction to grant the prayers of the Appellants being academic exercise?
(3) Whether this Honourable Court can grant Reliefs 3 to 5 of the originating summons as amended of the Appellants, the acts/basis of the Reliefs sought having being concluded?”
The 3rd Respondent adopts the three (3) issues as formulated by the Appellants in their Brief of Argument, and in addition to that added his fourth (4th) issue to wit:
“Whether the trial High Court properly assumed jurisdiction to hear and determine the suit.”
Having carefully examined the three (3) issues formulated by the Appellants, the sole issue formulated by the 1st Respondent, the three (3) issues of the 2nd Respondent, and the four (4) issues of the 3rd Respondent, in their respective briefs of arguments, which are similar, and becomes conterminous in all respect, they raised the same question, as to whether from the totality of the Appellants’ case and the affidavit evidence before the trial court, the learned trial Judge was right when he held that the Appellants, case had lacked merit and should be dismissed. In this regard therefore, I tend to be guided by the sole issue as formulated by the 1st Respondent in his brief of argument viz:
“Whether giving the totality of the Plaintiffs’ case, and the affidavit evidence before the court, the learned trial Federal High Court was right when it held that the Plaintiffs’ case lacked merit and should be dismissed.”
Before proceeding to take the arguments, the 1st Respondent’s counsel J.O. Adesina (SAN) (Mrs.) filed a Notice of Preliminary objection dated and filed on the 26/9/12. The learned SAN, however did not proffer or incorporated arguments to their Notice of Preliminary objection. The said Notice of Objection as presently constituted is considered abandoned. Again, J.O. Adesina SAN (Mrs.) filed a Motion on Notice dated and filed 6/7/12 and deemed filed 6/6/13 seeking leave to file Notice of Intention to contend and deeming the Notice of Intention to contend already filed as properly filed and served, the appropriate filing fees having been paid. The learned counsel incorporated arguments to the said Notice of Intention to contend at pages 18 – 23 of their brief of argument.
The 1st Respondent, pursuant to its Notice of Intention to contend filed before this Honourable Court hereby contend that the Judgment delivered by I.N. Buba Judge, on Friday the 2nd day of December, 2011, be further affirmed on the grounds as set out in the said notice, from the ground the 1st Respondent distilled the following as issues for determination why the Judgment should be affirmed.
ISSUES FOR DETERMINATION
(1) The federal high court lacked Jurisdiction to have heard and determine the matter.
(2) Whether the Appellants’ suit was not academic
LEGAL ARGUMENTS/SUBMISSION
The Federal High court lacked jurisdiction to have heard and determine the matter
The learned counsel submitted that the issue of “jurisdiction” is very important in adjudication, the term has been variously described by jurists as “the life blood” of any adjudication, “the flat”, “the stamp of authority” to adjudicate. See Lado v. C.P.C. (SC. 157/2011 SC 334/2011 consolidated) (unreported) KATTO v. CBN (1991) 2 NSCC (Pt.) PG 736 @ 751 – 752 (1991) 9 NWLR Pt.213 PG 126 @ 149.
The fundamental importance of the issue of jurisdiction is underscored by the principle of law to the effect that it can be raised for the first time in the trial court or the Court of Appeal or even the Supreme Court and by any of the parties or by the court suo motu. See: Oloriade v. Oyesi (1984) 1 SCNLR, Ezomo v. Oyavhire (1985) 1 NWLR Pt 2 Pg 260 @ 282.
By the locus classicus case of Madukolu v. Nkemdilim (1962) 1 ALL NLR pt. 4 pg 587, (1962) 2 SCNLR pg 341: the Supreme Court set out the guidelines determining the issue of jurisdiction of a Court of Law the court held that a court is competent or clothe with jurisdiction where:
a. “It is property constituted as regards member of the Bench and no number is disqualified for one reason or another.
b. The subject matter of the case is within its jurisdiction and no feature in the case which prevents the court from exercising its jurisdiction.
c. The case comes before the court initiated by due process of law and upon fulfillment of condition precedent to the exercise of jurisdiction.”
Once the issue of jurisdiction is raised, it is vital for the court to resolve the issue first before delving into other issues in the matter. See: Matari V. Dangaladima (1993) 3 NWLR Pt. 281 Pg 265 @ 275; National Bank (NIG) Ltd V. Shoyeye (1997) 5 SC 181.
It is no longer in doubt that every “process and procedure towards the nomination of a candidate” to be sponsored by a political party is a domestic affair of the party based on the sole discretion of the party. The court has not shifted from its position that it has no jurisdiction to question the exercise of such power by a political party where the party did not breach any laid down rules and laws. See: – Bakam V. Abubakar (1991) 6 NWLR (PT. 199) PG 564.
Learned counsel submitted further that, granted that it would seem from the provision of Section 87 (a) of the Electoral Act 2010 (as amended) in some way vested jurisdiction on the Federal High Court and state High Court in respect of matter pertaining to the conduct of primary election, we most humbly contend that nomination of a candidate is still the domestic affairs of the party. See: – Peoples Democratic Party V. Timipiriye Sylva & Ors SC 28/2012 & SC.9 2012.
Learned counsel further submitted that, the provision of Section 87 of the Electoral Act is available to an “aspirant who complains that any of the provisions of this Act and Guidelines of a political party has not been compiled” not to meddlesome interlopers who parade themselves as “candidates” or “intending aspirant.”
The Supreme Court in PDP v. Sylva & ors (supra) did not leave us in doubt as to who an aspirant is. It described an aspirant as “a person with a strong desire to achieve a position of importance or to win a competition… from the above, it is clear that an aspirant is a person who contest the primaries. An aspirant is thus a candidate in the primaries.”
Learned counsel submitted that the Appellants who averred before the lower court that there was no primary election conducted by the 1st Respondent has admitted that they did not participate in the primaries. By inference they have admitted that they were not candidate who “participated at the primary election” therefore they cannot complain about the conduct of the primaries as Section 87 (a) of the Electoral Act only confers jurisdiction on the Court to hear “complaints from a candidate who participated at his parties’ primaries.”
Learned counsel submitted further that a scrupulous examination of the Originating Summons and the Affidavits attached will show that the Appellants complaint is essentially the refusal of the 1st Respondent to conduct a “re-run primaries” to satisfy them. Reliefs 3 to 5 are therefore ancillary on Reliefs 1 and 2.
It is trite that a court cannot hear and determine ancillary claims if it has no jurisdiction to entertain the main claim. Tukur v. Government of Gongola State (1989) NWLR Pt. 117 Pg 517.
By Section 251 (1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) matters over which the Federal High Court could exercise jurisdiction was listed. It is trite that once things are mentioned in a statute others not mentioned are deemed excluded.
From paragraph (a-r) of the said provision, it is taken to mean that the Federal High Court, can only exercise jurisdiction as when the matters is to the revenue to the government of the Federation, pertaining to the taxation of companies, customs, Excise Duties, import Duties, Banking, Bank and other Financial institutions, copyright, Patent, Designs, Trademarks, etc.
Also included in the are matters of admiralty, diplomatic representative, citizenship, bankruptcy, aviation, arms and ammunition, drugs, mines and solid minerals, weight and reasons and the administration and management and control of the Federal Government or any of its a agencies.
My Lord, the Hon. Justice Bode Rhodes-Vivour JSC in the case of PDP v. Timipiriye Sylva suit No; SC 29/2012 (consolidated, put succinctly when he said;
“Section 251 of the constitution confers exclusive jurisdiction on the Federal High Court for the items listed in the Section. All items not listed in the Sections are to be held and determined by the State High.”
a. The parties or a party must be the Federal Government or its agency;
b. Subject matters of litigation must fall under Section 251 (1) (a-r) of the 1999 Constitution.
Learned counsel submitted that assuming, without conceding, that the Plaintiffs action is justiceable, it is only the State High Court that is vested with jurisdiction to entertain the claim as can be glimpsed from the Originating Summons and parties before the court.
Learned counsel submitted that the suit become academic, spent and totally unmaintainable and serves no useful purpose to maintain same. A look at the relief claimed by the Plaintiffs will show how wasteful an exercise it will be to continue with the determination in the case of the Plaintiffs.
Learned counsel further submitted that considering the fact that 1st Respondent has conducted her primary election for Ethiope Federal Constituency of Delta State, the Independent National Electoral Commission (INEC) having accepted the name of the 3rd Respondent as the 1st Respondent’s candidate for the April 2011 General Elections, the April 2011 General Elections having been conducted and winners having taken their oath of office, the resolution of the issues brought before this honourable court by the Appellants only becomes academic. The Supreme Court has time and again posited that courts do not exist to offer advisory opinions or to decide academic matters. See: A.G. Federation V. ANPP (SUPRA).
It is submitted without much ado and pursuant to the provisions of Section 74 of the Evidence Act, 2011 and the cases of OSAFILE V. ODI (No. 1) (1990) 3 NWLR PT 137 PG 130 @ 159 PARA G, and ADO IBRAHIM & CO., LTD. V. BCC LTD (2007) NWLR PT. 1058 PG 538 PARAS. C-G, this Honorable Court can, should and will take judicial notice of the fact that election into National Assembly has since been conducted in April 2011 General Elections, including Ethiope Federal Constituency of Delta State whilst the House was duly inaugurated since 2011.
Learned counsel urged this court to hold that this suit is spent and same has become academic, otiose, dead and without any utilitarian value. See: – ODEDO V. INEC (2008) 17 NWLR Pt. 117 PG 554 @ 600 PARAS B-D, when the Supreme Court held that:
“A suit is academic where it is merely theoretical, makes empty sound, and no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.”
Learned counsel finally urged the court to hold that after the April 2011 General Elections, it has become academic to determine the Plaintiffs reliefs as contained on the face of their Originating Summon and thus the Federal High Court ought not to have determine the case.
Learned counsel to the Appellant in reply to the 1st Respondent, submitted that the 1st Respondent has filed a Notice of Intention to contend that the Judgment of the lower court can be affirmed on other grounds. Specifically the 1st Respondent is contending that the lower court lacked the jurisdiction to entertain this matter on the grounds that the issues submitted for adjudication by the appellants had become academic. This is also the main thrust of the arguments of the 2nd Respondent in its brief of argument.
Learned counsel submitted that these arguments are completely off the point, puerile and a throw back of the distant past of the jurisprudence matters relating to the nomination and selection of candidates by political parties in the country.
He further submitted that by the tenor of Section 87 (10) of the Electoral Act 2010 as amended, the Federal High Court or State High Court have been granted the jurisdiction to determine whether a candidate standing for election under the Act was duly nominated and sponsored by its political party. This section gives the locus standi to any aspirant who complains that the provision of the political party as well as the provisions of the Electoral Act has been violated to approach the court. It is further submitted that by the tenor of the said provision, the courts are equally given the powers to determine and pronounce on whether a political party complied with the procedure spelt out for the nomination of its candidate for the said election. It is further submitted that the current judicial attitude to issues of nomination and sponsorship of candidates for elections is so fundamental, that the simple fact that the election for which the candidate’s candidature was being challenged had been concluded is not a bar to the exercise of the court’s jurisdiction. The issue of the nomination and selection of the said candidate remains a live issue irrespective of the conclusion of the said election. The courts can still pronounce on the validity or propriety of his candidature and in the long-run the validity of his election. See the following cases: (7) Ugwu V. Ararume (2007) 7 MJSC 1; (2) Amaechi v. INEC (2008) NWLR (Pt. 1080) 310 – 311 at 374, paragraphs h-d. These cases above typified the old trend under the Electoral Act 2006. Interestingly, in Amaechi V. INEC (Supra) the fact that Celestine Omehai had been elected and inaugurated as the governor of Rivers State, did not render academic, the suit filed by Rotimi Amaechi, challenging his wrongful substitution and exclusion from the governorship election in Rivers State. This case was the ground breaking move made by the Supreme Court to rejuvenate the Electoral process in the country a state of fait accompli or foist a state of hopelessness in the courts efforts to sanitize that electoral process. This it is submitted informed the new Section 87 (4) (c) (i) of the Electoral Act 2010, as amended.
It is therefore submitted that by the tenor of this section aforesaid, issues of nomination or sponsorship of candidates by political parties have been removed from realm of intra-party activity for which the court’s jurisdiction were hitherto ousted. Accordingly, the old cases (1) Onuoha V. Okafor (1983) 3 SCNLR 244; (2) Dalhatu V. Tarfida (2003) 42 WRN 15 have now been whittled down.
Presently, issues bordering on the nomination and selection of candidates by political party is now a pre-election matter that remains exclusively within the domain of the courts. The courts now have the jurisdiction to determine and pronounce whether a political party complied with its own constitutions and rules as well as the Electoral Act in the nomination and selection of its candidate. Specifically, in Uzodinma V. Izuanso (2011) 17 NWLR (Pt 1275) 30 at pg 60 paragraphs C-E. See also Odedo v. INEC (2008) 17 NWLR (Pt. 1117) Pg. 554 at 613 paragraphs a – b, 614, paragraphs g-h.
It is therefore submitted that the avalanche or authorities cited and relied upon by the 1st and 2nd Respondents’ on the fact that the Appellant’s claims before the lower court became academic simply because the 3rd Respondent had been “elected” into office, is not the true position of the law. In fact in cases decided in the aftermath of the 2011 General Elections, serving senators and members of the House of Representatives have had their elections annulled on the basis of their defective or improper nomination and sponsorship by their political parties.
Specifically, in CPC V. Lado (2011) 14 NWLR (Pt. 1266) 40, an entire set of senators and some members of the House of Representatives were sacked from office by the Court of Appeal, because the court affirmed that their nomination and sponsorship for the election by a faction of the CPC in Katsina State was invalid and unconstitutional.
Similarly, in the recent Supreme Court decision involving Eseme Eyibo, a member of the House of Representative and former spokesman of the House, was sacked because his purported nomination by the PDP in Cross-River State, did not follow the due process as laid down in Section 87(4)(c)(i) of the Electoral Act 2010 as amended. Specifically the apex court concurred and affirmed the finding of fact by the trial court that the primaries that produced Eseme Eyibo as the PDP’s candidate for the said election was not witnessed nor endorsed by officials of INEC as required under the Electoral Act aforesaid.
In these two cases, the fact that the elections had been concluded or the fact as is the case in Eseme Eyibo’s case that he had become a principal officer of the House of Representative did not make the initial suit at the lower court an academic exercise.
It is therefore submitted that from the preponderance of judicial authorities cited and relied upon by the 1st and 2nd Respondents on this issue, it is clear that they misunderstand the true legal import of an academic suit.
Learned counsel submitted that, an academic suit is one in which there are no live issues before the court and one in which the Judgment or orders of the court would become nugatory or an exercise in futility. See Agbareh V. Mimra (2008) 2 NWLR (Pt. 1071) SC 378 at 426, paragraphs b – e. This is not the case here, as any pronouncement by this honourable court would have far reaching consequences on the candidature of the 3rd Respondent for the said election and his right to continue to occupy his seat in the House of Representatives. Accordingly, all the cases cited by the 1st and 2nd Respondents on the academic nature of the suit at the lower court were cited out of con and therefore not applicable to this case.
It is further submitted that the 2nd Respondent’s arguments at page 20 – 21, paragraphs 13.10 – 13.18 is most outlandish and not supported by the evidence on record. The evidence on record as shown from the affidavit of the Appellant in support of their originating summons is that they are aspirants who expressed their desire to contest the primaries for the selection of the 1st Respondent’s candidate into the Ethiope Federal Constituency. In their affidavit evidence, the Appellants exhibited their membership cards of PDP (the 1st Respondent) as well as their duly completed nomination forms and requisite fees paid for participation in the said primaries and temporary screening certificate. (See pages 154 – 177 of the Record of Appeal). The 1st Respondent never joined issues with the Appellant’s their membership of the 1st Respondent party or the fact that they were screened and certified eligible to contest the said primaries.
The 1st Respondent’s contention in their counter-affidavit was that the 1st Appellant absented himself from the purported primaries of 10th January, 2011 wherein the 3rd Respondent was purportedly elected. On the other hand, it was the Appellant’s case that the scheduled primaries of 10th January 2011 never held and was rescheduled for 29th January 2011. This was the crucial issue before the trial court. At no time did any of the Respondents especially the 1st Respondent’s question the status of the Appellant’s as aspirants seeking the candidature of the 1st Respondent for the said election. It is therefore submitted that the 1st Respondent’s sudden recourse to this argument is untenable and not permissible at law. It is submitted that this amounts to raising fresh issues not canvassed at the lower court on appeal for the first time, this is more particularly so as it would involve the introduction of new facts. We submit that the 1st Respondent is not entitled to raise this issue without the leave of this court. See Isheno V. Julius Berger (Nig) Plc (2008) 6 NWLR (Pt. 1084) 582 at 609 paragraphs f – g. See also Unity Bank Plc. V. Bouri (2008) 7 NWLR (Pt. 1086) 372 SC at 400, paragraphs c – f.
It is therefore submitted that Section 87 (4) (c) (i) of the Electoral Act aforesaid inures to the Appellants herein who are aspirants as contemplated under the Act. Furthermore, what other evidence of participation for the primaries is more than the payment of the requisite nomination fees, filing of the nomination forms and being screened to contest the said primaries.
Accordingly, it is humbly submitted that the case PDP V. Timipriye Sylva & Ors 28/20/2012 cited profusely by the 1st Respondent was quoted out of con as the facts and circumstance in that case are inextricably and radically different from the case at hand. It is therefore inapplicable to this case and cannot be a talisman for the 1st Respondent. In any case, the definition of an aspirant by the Supreme Court in the case i.e. (Timipriye Sylva’s case) is wide enough to cover the Appellants.
It is therefore submitted that the Appellants having abandoned reliefs 4 and 5 which were mainly injunctive orders against the 2nd Respondent, reliefs 1 – 3 remained live issue in the case in so far as they were anchored on the interpretation of Section 87(4)(c)(i) of the Electoral Act, 2010. Issues 1 – 3 were anchored on the lower courts interpretative and adjudicatory powers which remained preserved by Section 6 (6) (b) of the 1999 Constitutions (as amended).
The learned counsel urged that this Honourable Court discountenances the agreements of the 1st and 2nd Respondents on this issue, as the issues submitted by the Appellants to the trial court remained live issues and not academic issues, which it had jurisdiction to hear.
The 1st Respondent replied the Appellants on Notice of Intention to contend his reply dated and filed 26/9/12 but deemed properly filed and served on the 6/6/13.
Learned counsel submitted that the 1st Respondent having gone through the Appellants response to the Notice of Intention to Contend as contained at pages 9-17 of their brief dated 20th July, 2012 and filed the same date is constrained to submit the following by way of reply on point of law.
The Appellants argued extensively that by virtue of Section 87 (10) of the Electoral Act 2010 (as amended) both the Federal High Court and the State High Court have jurisdiction to entertain nomination and sponsorship of a candidate by a political party.
Learned counsel submitted that one of the instances where jurisdiction of the court can be ousted as laid down in the case of Samuel Inuagolu V. Chizea Pascal Azyka (2009) 5 NWLR Pt. 1028 Pg. 613 @ 628 Para C-E
“Is where the subject matter of the case is not within the jurisdiction of the court?”
It is trite that jurisdiction is a radical and crucial question of competence. This is because if the court has no jurisdiction to hear a case, the proceedings remain a nullity, however well conducted and brilliantly decided.
It is trite that the powers of the court are derived from the constitution not at the sufferance or generosity of any other arm of Government.
The question that begged for answer is: Can the Electoral Act confer powers on the court or serve as an amended constitution? The answer to this question is in the negative.
It is trite that where a statute mentions specific things those things not mentioned in the specific list are not intended to be included “expression unius est exclusion alterus.” See: – Berliet Nig. Ltd. V. Kachalu (1995) 9 NWLR (Pt. 420) 478.
Learned counsel submitted that the Federal High Court established under the constitution of the Federal Republic of Nigeria can only derive its power under the same law that established it and not from any other legislature.
Section 1(1) of the 1999 constitution (as amended) provided thus:
“This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”
Sub 3 provides:
“If any other law is inconsistent with the provision of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency, be void.”
See: – PDP V. TIMIPIRIYE SYLVA (2002) 13 NWLR (PT. 1316) Pg. 85:
“Section 251 of the constitution confers exclusive jurisdiction on the Federal High Court for the items listed in the section. All items not listed in the section are to be heard and determined by the State High Court. When the jurisdiction of the Federal High Court is in issue the following must co-exist:
a. The parties or a party must be the Federal Government or/any of its agency.
b. Subject matter of the litigation.
Satisfying above is not the end of the matter. The pleadings of the Plaintiff must be carefully examined so as to understand the facts and circumstances of the case in order to determine if the claims are within the jurisdiction of the court. It is clearly not enough only to have an agency of the Federal Government as a party before Federal High Court has jurisdiction…”
Learned counsel submitted that the mere fact that “INEC” an agency of the Federal Government was joined as 2nd Defendant at the trial court is not enough to confer jurisdiction on the trial court. As the Appellants pleadings and their claims or reliefs are not within the jurisdiction of the court, since they are all centered on the 1st Respondent who it is alleged failed to conduct primary election for the Ethiope Federal Constituency.
The Appellants cited the cases of Ugwu V. Ararume, Amaechi V. INEC in arguing that the suit has not been rendered academic and that the court can still pronounce on it.
Learned counsel submitted that the reliefs, fact and circumstances in the above cases cited by the Appellants in their brief of arguments are entirely different and distinguishable from this particular case.
While the issues and reliefs claimed by the Plaintiffs in the case of Amechi V. INEC and Ugwu v. Ararume were live issues and grantable relief, the reverse is the case before this court as both the questions for determination and the reliefs claimed by the Appellants are academic.
While reliefs 1 and 2 are declaratory, reliefs 3, 4, and 5 are injunctive. A careful perusal of the Appellants prayers or reliefs will show your Lordships that none is a live issue as your Lordships cannot order the 1st Respondent to have a re-run primary or order a fresh congress as the Appellants are urging the Honourable Court.
Learned counsel submitted that reliefs 3, 4, and 5 sought by the Appellants as contained in their amended originating summons are injunctive in nature, and an injunction will only lie in respect of live issues and will not lie when an issue is dead in the sense that an action is completed and cannot in law be resuscitated. See: – A.G. Abia State V. A.G. Federation (2006) 16 NWLR Pt. 1005 Pg. 265 @ 387, Para F-H.
He further submitted that assuming without conceding that reliefs 1 and 2 which are declaratory in nature are grantable, we submit that it has become academic as orders of court are not made in vacuum or in vain as there are no other substantive reliefs or orders which the court can make since this Honourable Court is not a Father Christmas. See: A.G. Abia State V. A.G. Federation (Supra) @ 388, Para F-G; Ezeakabekwe V. Emenike (1998) 11 NWLR (Pt.575) 529.
Learned counsel submitted that the Appellant’s relief before the trial court in this case has been rendered academic or hypothetical. See: – A.G. Federation V. All Nigeria Peoples Party (2003) 18 NWLR Pt. 851 Pg, 192 @ 215 Para F-G.
The learned counsel submitted that the cases cited by the Appellants are of no moment in respect of this present case before this court as the facts and circumstances of those cases are quite different from these particular cases as they are distinguishable.
It is submitted further that the Appellants reliefs 1 and 2 which is a declaratory relief is academic and hypothetical as it does not raise any dispute between the Appellants and Respondents in this matter. See: – A.G. Anambra State V. A.G. Federation (2005) 9 NWLR (Pt. 931) Pg 572 @ 610 Para C-D.
The submissions of counsel on the said Notice of Intention to contend is carefully examined. All the arguments presented are quite simple and presents no complexity. The main purport of the Notice to contend filed by the 1st Respondent is to have the Judgment of the trial court delivered on the 2/12/11 be further affirmed on the grounds as set out by the said notice.
The first issue in the said Notice to Contend attacks the jurisdiction of the Federal High Court to hear the case in the first place. This court in a most recent decision delivered the 20th day of June, 2013, in an unreported Judgment, in Suit No. CA/B/179/2011 by the eloquent jurist, T.S. Yakubu, JCA at page 20 stated as follows:
“Unquestionably, jurisdiction is the sole and lifeline of an action in court. It is the green light which authorizes the court to proceed and assume its powers/vires over the action and determine it. Therefore, where the crucial and fundamental question of jurisdiction is not resolved by the court and it proceeds to determine an action before it that may be tantamount to an exercise in futility and counterproductive. If at the end, an appellate court found that the trial court lacked the jurisdiction to have heard and determined the said action.
Hence, it is the firm opinion of this court and the apex court, that as soon as the issue of jurisdiction is raised by the parties or by the court suo motu, that issue must be the first duty of the court to be determined as a matter of priority. Ajayi V. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 181 & 202 (SC); Goldmark V. Ibafon (2012) 3 SCNJ (Pt 11) 565 at 597; Utih & Ors V. Onoyivwe & Ors (1991) 7 SCNJ 25 at 49; Fed. Airport Authority of Nig. Ltd V. Sylvester Nwoye (2012) 16 WRN 154 at 184 (CA) Adeyemi v. Opeyori (1976) 9 – 10 SC 31 or (1976) 1 NMLR 149.”
The kennel of the Notice to Contend by the 1st Respondent rests on his argument that, considering the fact that that 1st Respondent has conducted her primary election for Ethiope Federal Constituency of Delta State, the Independent National Electoral Commission having accepted the name of the 3rd Respondent as the 1st Respondent’s candidate for the April 2011 General Elections having been conducted and winners having taken their oath of office, this suit is spent and same has become academic, otiose, dead and without any utilitarian. All arguments in respect of this position by 2nd Respondent had been copiously set out earlier by this court in this Judgment.
The Appellants in reply to these arguments maintained that the Applicant (1st Respondent) veered off the point, those arguments are puerile and a throw back of the distant past of the jurisprudence matters relating to the nomination and selection of candidates by political parties in the country. The Appellants maintained that by the tenor of Section 87 (10) of the Electoral Act 2010 as amended the Federal High Court or State High Court have been granted the jurisdiction to determine whether a candidate standing for election under the Act was duly nominated and sponsored by its political party. This section gives the locus standi to any aspirant who complains that the provision of the political party as well as the provisions of the Electoral Act has been violated to approach the court. By the tenor of the said provision, the courts are equally given the powers to determine and pronounce on whether a political party complied with the procedure spelt out for the nomination of its candidate for the said election. The current judicial attitude to issues of nomination and sponsorship of candidates for elections is so fundamental, that the simple fact that the election for which the candidate’s candidature was being challenged had been concluded is not a bar to the exercise of the court’s jurisdiction. The issue of the nomination and selection of the said candidate remains a live issue irrespective of the conclusion of the said election. The courts can still pronounce on the validity or propriety of his candidature and in the long-run the validity of his election. Appellants relied on the Supreme Court’s decisions on Ugwu V. Ararume (2007) 7 MJSC 7; and Amaechi V. INEC (2008) NWLR (Pt. 1080) 310, 311, 314 Paragraphs H – D.
In determining whether this action is already spent, or remains a live issue, as argued by the parties, to donate jurisdiction to the Federal High Court, or not, the process that remain fundamental is the Originating Summons, the questions put forward for determination and the declarations and reliefs sought from the court. The main issue in this Notice to Contend by the Applicant (1st Respondent) is whether the jurisdiction of the Federal High Court on the questions of nomination and selection of candidates subsist after the conduct of the general elections, which the Applicants maintains that after the conduct of general elections, such actions are already spent. The Appellants maintained such questions remain live issues even after the conduct of the general elections and relied on some judicial authorities. The Supreme Court has since settled this question. The apex court provided a guide for the courts to follow.
(1) Go back to the Originating Summons to see the date in which it was filed in court.
(2) If the Originating Summons was filed prior to the conduct of the general elections, it remains a pre-election issue, which can be challenged up to the Supreme Court.
(3) If the Originating Summons was filed after a general election the question of nomination which is a pre-election matter ceases to exist leaving only the election proper to be questioned and the proper place to do so is the Election Tribunal not the High Court which has no jurisdiction to entertain such action. See the decision of the Supreme Court in Salim V. CPC (2013) 6 NWLR (Pt. 135) 501 at 523 – 524 Paras E – B, 524, Para H; 525 Paras A – B, on proper forum to raise issue of nomination after general election. The apex court held:
“After a general election, the question of nomination, which is a pre-election matter ceases to exist leaving only the election proper to be questioned and the proper place to do so is the election tribunal not the High Court which has no jurisdiction to entertain such on action where the election has taken place any grievance arising from the nomination exercise can only be entertained by the election tribunal on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the elections. In the instant case, the trial High Court no longer had the power to adjudicate over disputes concerning nomination of the candidates for the election of 9th April 2011. Therefore, the trial court was right in declining jurisdiction over the matter, (Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547; Tanimola v. Surveys Mapping Godatta Ltd. (1995) 6 NWLR (pt. 403) 617; Ogbonna V. President, F.R.N. (1997) 5 NWLR (pt. 504) 281; Ndulue V. Ibezim (2002) 12 NWLR (Pt. 780) 139 referred to.”
In the instant appeal, before this court, the Appellants as Plaintiffs before the Federal High Court had their Originating Summons dated 22/02/2011 and Amended Originating Summons filed on the 14/06/2011. The filing date of the Appellants Amended Originating Summons was the 14/06/2011. The parties in this appeal are not in dispute that the General Elections in Nigeria, including the Election to Ethiope Federal Constituency of Delta State were all held and concluded in April 2011. Therefore, the commencement of the action, the subject of this appeal, vide an Amended Originating Summons which was filed on the 14/6/2011 was commenced like post-General Elections and not pre-General Elections. In Salim V. CPC (Supra) per Peter Odili, JSC at pages 524 – 525 Paras H – C, his Lordship stated:
“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the Appellant as Plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the F.C.T. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those courts above mentioned as in this instance.”
Now going by the records before this court contained in the Record of Appeal, the Originating Summons was filed at the Federal High Court on the 14/2/11. It was the Amended Originating Summons that was filed on 14/6/11. By that therefore, the original Originating Summons was filed on the 14/2/11. Before we proceed to determine whether as per the date of filing this Originating Summons which was 14/2/11, this action remains a pre-election or a post election matter, it becomes apposite to know what an amendment means. The Supreme Court in the case of Chief Adedapo Adekeye & Anor V. Chief O.B. Akin-Olugbade (1987) 6 S.C. 268 at 280 – 281 stated as follows:
“An Amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity and which is done either as of course or by the consent of parties or upon notice to the court in which the proceeding is pending. The object of courts is to decide the right of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights. There is no kind of mistake or error which if not fraudulent or intended to over-reach, the courts cannot correct, if this can be done without injustice to the other party. Blunders may occur and nowadays they occur with disturbing regularity, but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case.
The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant…”
From the above decision of the Supreme Court, the first process filed remains the process of the party. The coming in of an amendment is only intended to do some correction of errors to the originating process. That being the case, the date of filing of the first process is not affected by the fact of the subsequent amendment. In this regard therefore and in relation to the present action, the date the Appellants Originating Summons was filed was 14/2/11. The amendment or the Amended Originating Summons only sought to correct errors of the original one. The Amended Originating Summons filed on the 14/6/11 does no harm or did not obliterate the original date of the 1st Originating Summons filed on the 14/2/11. In this vein therefore, the Appellants Originating Summons filed 14/2/11 remains a pre-election matter having come in before the general elections in Nigeria held in April of 2011. On Amendment also see: – Shell BP Petroleum Dev. Co. V. Jammal Engineering (Nig.) Ltd. (1974) 4 S.C. 33 at pp 74 & 75; A.E. Ipadeola & Anor V. Abiodun Oshowole (1987) 5 S.C.N.J. 200; Akaninwo & 4 Ors. V. Nsirim & 3 Ors (2008) 1 S.C. (pt. 111) 151.
The fallout of this is that, having filed the Originating Summons at the lower court timeously before the general elections of the 2011 April, the action of the Appellants at the lower court remained alive for adjudication, it was not spent, and the lower court was right to have assumed jurisdiction upon. The Supreme Court had admonished parties wishing to challenge wrongful substitution or nomination on election to act without delay. See: – Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 604 paras D – G. The apex court stated:
“The candidate who was substituted at an election must act timeously to enforce his rights. Substitution and nomination being pre-election matters, the candidate must approach the competent court to seek for the enforcement of his rights before the real election takes place. Immediately the candidate was substituted, he should not wait for election to hold before seeking redress. If the election thereafter took place after the filing of the action having become subjudice, it remains pre-election matter, even if the matter is fought to the Supreme Court. Whereas in the instant case, the candidate who was substituted did not take any step to seek redress before the election took place, and a candidate declared as the winner, and he thereafter sought to be declared as the winner of the election, the matter would no longer be a pre-election matter. That means that his right to pursue a pre-election matter ceased after holding of the election except only if the action was instituted before the holding of the election (Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 referred to) per Onnoghen, JSC at page 600 Paras A – B in the same decision:-
It is dangerous to lay the precedent that a party who was substituted wrongfully or otherwise is at liberty to challenge the substitution or nomination by way of substitution of his opponent months or years or at any time during or even after tenure of the electoral government official and have the election annulled and himself declared the winner or governor by the regular courts. That will be ambushing the governorship seat at the gate of the judiciary.”
The law is already stated, that at the time the Appellants filed their Originating Summons on the 14/2/11, it was a pre-election period. The lower court that is the Federal High Court was right when it assumed jurisdiction and heard the said matter. The first leg of the said Notice to contend is resolved against the 1st Respondent/Applicant and in favour of the Appellants.
On the second leg of the said Notice to contend whether it has become an academic question. The law is already settled that, a suit is academic where it is merely theoretical and of no particular utilitarian value to the Plaintiff even if Judgment is given in his favour (as in the instant appeal before this court). A suit is academic where it is not related to practical situations of human nature. It is speculative if it is based on speculation, not supported by facts or very low on facts but high in guesses. A suit is hypothetical if it is imaginary, based on real facts; looks like a mirage to deceive the Respondent and as to the reality of the cause of action, a semblance of the actuality of the cause of action or relief sought. (Plateau State v. A.G. Fed. (2006) 3 NWLR (Pt. 973) 346 at 419; Dike V. Okorie (1990) 5 NWLR (Pt. 151) 418; Olubode V. Salami (1985) 2 NWLR (Pt. 7) 283; Ojiegbe V. Owaranyia (1962) 2 SCNLR 358 referred to- (Pp 176 – 177 Paras. G-A)
This court resolution of the 1st leg of the Notice to contend clearly demonstrated that having filed their Originating Summons timeously, the Suit was alive and thus not spent. The Suit remains a live issue and not an academic question. With much ease therefore, the 2nd leg of the said Notice to Contend is also resolved against the 1st Respondent/Applicant, and in favour of the Appellants. Notice to contend dismissed.
I now consider the main appeal. Earlier on in this Judgment, this court had adopted the sole issue as formulated by the 1st Respondent in its Brief of Argument, for the determination of this appeal. The said issue is as follows:
“Whether giving the totality of the Plaintiffs case, and the affidavit evidence before the court, the learned trial Federal High Court was right when it held that the Plaintiffs case lacked merit and should be dismissed.”
Learned counsel to the Appellant submitted that the learned trial Judge failed to consider and properly evaluate the evidence before him before reaching his verdict dismissing the Appellants’ claim. Based on the state of affidavit evidence, it was apparent that the balance of probability tilted in favour of the Appellant herein.
Learned counsel submitted further that the law is firm on the issue that where there are irreconcilable conflicts in affidavit evidence the trial Judge is enjoined to evaluate the affidavit evidence put them on the imaginary scale in order to determine where the pendulum swings. It is equally trite law where affidavit evidence are patently irreconcilable, oral evidence becomes imperative to resolve the issues between the parties. See: GMON & Co. Ltd. V. Akputa (2010) 3 NWLR (Pt. 1200) 443 at 473 – 479, Paragraphs F – A; Prince Onyejekwe & Ors V. Emweonu (2010) 14 NWLR (Pt. 1185) 477 at 487 Para b – c.
Learned counsel further submitted that it is mandatory and incumbent on the 1st Respondent to conduct direct primaries between the contending aspirants before selecting a candidate for election into the Ethiope Federal Constituency specifically Section 87 (1) of the Electoral Act 2010 as amended.
Learned counsel submitted further that it is not only mandatory for the political party to conduct the said primaries there must be evidence that such primaries was approved by the high level of the party. The National Executive Committee. Can it be said that 1st Respondent led credible evidence to prove that it conducted primaries in line with the Electoral Act before selecting the 3rd Respondent as its candidate for the said Election? The evidence on record negates such fact.
Learned counsel submitted further that the learned trial Judge ought not to have attach any probative value to Exhibits “BB”, “CC”, “CC1” “DD” and “EE” the suppose result sheets for the said primaries. If indeed primaries were conducted by the 1st Respondent, it (1st Respondent) would have been the most appropriate person to Exhibit the said results and not the 3rd Respondent. The 1st Respondent filed a counter-affidavit to the Appellants Originating Summons, yet it did not attach any result it is the 1st Respondent that has the burden to prove that the said primaries was approved by the National Executive Committee and the result of the said primaries so approved by the said body. See C.P.C. V. Lado & Ors (2011) 14 NWLR (Pt. 1266) 40.
Learned counsel further submitted that the 1st Respondent was duty bound to conduct primaries in line with Section 87(4)(c)(i) of the Electoral Act 2010 before selecting the 3rd Respondent as its candidate for the Ethiope Federal Constituency. The 1st Respondent failed to carry out this obligation and that these Appellants herein have proved on the balance of probability that the 1st Respondent did not carry this act important assignment under the Electoral Act and its (1st Respondent’s) Party Guidelines.
Learned counsel further submitted that, the learned trial Judge failed to fully appreciate the questions for determination by the Appellant. In consequence therefore, he failed to answer the said questions as required by law. This omission on the part of the learned trial Judge occasioned to the Appellant gross miscarriage of justice.
Learned counsel submitted further that in Suit commenced by way of Originating Summons like all other suits, it is imperative for the learned trial Judge to answer the questions formulated for determination by the Plaintiff. See Yusuf V. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 360; X.S. (Nig.) Ltd. V. Taisei (WA) Ltd (2000) 15 NWLR (Pt. 1003) 533 at 558 Paras c – d.
Learned counsel submitted further that the learned trial Judge instead of answering and determining the issues formulated for determination in the substantive suit was swayed by extraneous matters in dealing with the substantive suit. This contention can be seen at page 351 of the record of appeal.
The 1st Respondent in response to the arguments of the Appellants above submitted that; it is trite law that whatever has been expressly admitted in the pleadings requires no further proof. Such fact is rendered established and may be accepted as one of the agreed facts of the case. See Sabru Motors Ltd V. Rajab Ent. Ltd (2002) 7 NWLR (Pt. 766) 243 at 264 Paras C – E 265 Paras E, 270 – 271, Paras A – G; Okafor V. INEC (2010) 3 NWLR (pt. 1180) 1 at 49 Paras D – F; A.C.B, Ltd. V. Gwagwada (1994) 5 NWLR (pt. 342) 25 at 42 Paras G – H; Iga & Ors V Amakiri & Ors (1976) NSCC 610 at 616; Onyenge V. Ebere (2004) 13 NWLR (Pt. 889) 20 at 30 Paras F – G; Ojukwu V. Onwudiwe (1984) 1 SCNLR 247 at 284.
Learned counsel submitted further that the law also is that, he who alleges must prove and in a declaratory claim of this nature, he must equally show that he is entitled to such a relief to the court. See U.B.A. Plc V. BTL Ind. Ltd (2006) 19 NWLR (Pt. 1013) 61 at 139 Paras B – F, 142 Paras A – B; Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723; F.A.T.B. Ltd. V. Partnership Invest. Co. Ltd (2003) 13 NWLR (Pt. 851) 36; Adake V. Akun (2003) 14 NWLR (Pt. 840) 418 at 430.
Learned counsel submitted further that where there are conflicts in affidavit, it is not only by calling oral evidence that conflict can be resolved. It has been held that such conflicts can be resolved by authentic documentary evidence which support one of the affidavits in conflicts. When the court has enough documentary evidence at his disposal it can suo motu resolve the conflict in the affidavit of the parties. See Ugbone V. Hussaini (2009) 5 NWLR (Pt. 1135) 530 at 544; Afribank Nig. Plc V. Adigun (2009) 7 NWLR (Pt. 1152) 329 at 350.
Learned counsel submitted further that the Appellants’ claim being declaratory they have the onerous task of proving their entitlement to the reliefs. See Ogolo V. Ogolo (2003) 13 NWLR (Pt. 852) 494 at 515 Paras F – H; Oni V. Arimoro (1973) 3 SC 165; Clay Industries (Nig) Ltd. V. Aina (1997) 5 NWLR (Pt. 516) 208; Eke V. Okwaranya (2001) 12 NWLR (Pt. 726) 87 at 206 – 207 paras B – C; Dim V. Enemuo (2009) 70 NWLR (Pt 1149) 353 at 377 Paras E-H Paras C-H.
The 2nd Respondent in response to the Appellants’ argument submitted that, the circumstances surrounding this case especially as born out of these holdings above and contents of Exhibit E, the Appellants’ affidavit in support of the Originating Summons, the Rules and Guidelines of the 1st Respondent, show that 2nd Respondent rightly accepted and adopts the 3rd Respondent in carrying out its duty. If the 1st Appellant was adopted, the Appellant will not complain. The 2nd Respondent rightly accepted the name of the 3rd Respondent. Consequently, an injunction cannot restrain the 2nd Respondent as per reliefs 3 to 5 of the Originating Summons.
Learned counsel submitted further that, besides all these said reliefs are/were concluded actions. It is trite law that a court of law cannot grant an injunction or a restraining order to stop a concluded act. See: – Iheanacho V. Ekpahuru Ideozu (2006) 2 SC (Pt. 11) 113 at 132 lines 15 – 40. The Appellant never asked the lower court for a perpetual injunction and the lower court could not have granted any, being not a charitable organization (NGO). See: – Mallam Saidi Amori V. Yakubu Iyanda (2008) 3 NWLR (Pt. 1074) 250 at 283 Para G; Alh. Garba Mohammed Gadi V. Barr. Babayo A. Male (2010) 7 NWLR (Pt. 1193) 225 at 275 Para D, Paras E – G.
Learned counsel submitted further that, contrary to the submissions of the Appellants at pages 16 – 20 of the Appellants Brief of Argument, the learned trial Judge was not bound to pronounce Ipsi dixit or mutation mutandi on issue(s) raised by the Appellants. Rather, the Supreme Court enjoins in plethora of authorities that, Judges can frame issues(s) comprehensively to encompass any or all issues for determination, so as to arrive at the justice of any case. So did the learned trial Judge in the instant case. Learned counsel submitted further that, a suit becomes academic where it is merely the theoretical and no particular utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic where it is not related to practical situations of human nature. It is speculative if it is based on speculation, not supported by facts or very low on facts but high in guesses. A Suit is hypothetical if it is imaginary, based on real facts, looks like a mirage to deceive the Respondent and as to the reality of the cause of action or relief sought. See Plateau State V. A.G. Fed. (2006) 3 NWLR (Pt. 967) 346 at 419; Dike V. Okorie (1990) 5 NWLR (pt. 151) 418; Olubode V. Salami (1985) 2 NWLR (Pt. 7) 283; Ojiegbe V. Owaranyia (1962) 2 SCNLR 358.
Learned counsel to the 3rd Respondent in his response to the Appellants submitted that, the trial High Court lacked jurisdiction to hear and determine the Suit the subject matter of the present appeal having regard to the subject matter or cause of action in the suit. This issue was not properly raised by the 3rd Respondent in the trial High Court. However, being issue of jurisdiction, it can be raised at this appellate stage. See: – N.N.P.C. V. Clifco Nig. Ltd. (2011) Vol. 195 LRCN 1 at 21 JJ at 22 AF; Elugbe v. Omokhafe (2005) All FWLR (pt. 243) 629 at 649; Gaji v. Paye (2003) FWLR (Pt. 163) 1 at 13 Paras E – F; Obiakpor v. State (2002) FWLR (pt. 113) 299 at 309; Dingyadi v. INEC (2011) vol. 207 LRCN 85 at 126; Onmeje v. Odumu (2011) All FWLR (Pt. 600) 1328 at 1349 paras G – H.
Learned counsel further submitted that, it is not the case of the Appellants or any of them that the primaries took place and he or she scored the highest number of votes at the end of voting but he or she was neither declared the winner nor have his or her name forwarded to the 2nd Respondent. In the circumstances, the trial High Court lacked jurisdiction to hear and/or determine the suit. See: Lado V. C.P.C. (2012) All FWLR (pt. 607) 598 at 622 – 623 Paras E – H; Akpan V. Bob & Ors (2011) Vol. 193 Iran 78 at 165 EEJJ & 166A.
Learned counsel further submitted that it is not in all cases where there is conflict in affidavits evidence that the court will call oral evidence to resolve conflicts on material or substantial issues in affidavits and not on every trivial or immaterial issues in affidavit evidence. See: – Ranco Trading Co. Ltd. V. UBN Ltd. (1984) 4 NWLR (Pt. 544) 566 at 573; First Bank of Nig. Plc V. May Medical Clinics & Diagnostic Centre Ltd. (2004) 4 SC (pt.1) 108 at 115.
Learned counsel submitted that the need to call oral evidence to resolve conflicts in affidavits will not arise or will be dispensed with if there are other materials (particularly documents) before the court to resolve the conflicts in the affidavits evidence. See: – In Re Otuedon (1995) 4 NWLR (pt. 392) 655 at 670; Ezegbu V. F.A.T.B. Ltd. (1992) 1 NWLR (pt. 221) 699 at 720; Fashanu V. Adekoya (1974) 1 All NLR 35 at 48; Magnusson V. Koiki (1994) 4 NWLR (Pt. 183) 119 at 129.
Learned counsel submitted further that the 1st Respondent and indeed the 3rd Respondent complied with the provisions of Section 87 of the Electoral Act. As shown in the affidavits of the Respondents particularly 1st and 3rd Respondents respectively, the 1st Respondent held or conducted primary election in respect of Ethiope Federal Constituency on the 10th day of January, 2011. We refer to paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 26, 27, 28 and 29 of the 3rd Respondent’s counter affidavit to the Originating Summons and Exhibits “AA” “AA6” “BB” “CC” “CC1” and “EE” attached thereto.
Learned counsel further submitted that the learned trial Judge resolved all the questions set out in the Amended Originating Summons in his Judgment under appeal. After evaluating all the affidavit evidence and Exhibits attached thereto, before coming to his conclusion. See page 356 of the record.
The Appellants filed to the 1st and 2nd Respondents undated but filed on the 20/7/12. Learned counsel submitted that it must be observed that the 1st Respondent’s Summary of Findings of Facts by the learned trial Judge at pages 4 – 5 and paragraphs 5.0 – 5.6 confirmed the allegation by the Appellants that the learned trial Judge veered off the issues submitted for determination by the Appellants.
Learned counsel further submitted that, the 1st Respondent’s argument on the sole issue formulated is a brazen and belated attempt to re-argue the case before this Honourable Court. It is an attempt by the 1st Respondent to improve on the arguments it presented before the lower court. The 1st Respondent can no longer do this. See: Owners M.V. Gongola Hope V. S.C. Nig. Ltd. (2007) 15 NWLR (pt. 1056) 189, Ayinke Stores Ltd. V. Adebogun (2008) 10 NWLR (Pt. 1096) 612 at 625 paras c – d, e-f.
Learned counsel further submitted that, the attempt by the 1st Respondent to draw this court’s attention to the alleged “inconsistencies or contradictions” in the Appellant’s affidavit before the trial court amounts asking this court to retry the case. It is an admission that the learned trial Judge failed to carefully and critically evaluate the affidavit evidence on record before reaching his verdict.
Learned counsel submitted further that a cursory examination of the learned trial court’s Judgment would reveal that he made no finding of fact on the issue of facts before him neither did he answer the questions brought before him for resolution by the Appellants. There is no legal room for “implied answers” of questions submitted for adjudication or “implied evaluation of facts or finding of facts.” This must be seen expressly from the body of the Judgment.
On the part of the court, all the submissions of counsel is carefully examined. The Originating Summons, and the Reliefs sought by the Appellants have been reproduced earlier in this Judgment. The law is already settled on the procedure of commencing action by the mode of Originating Summons. The intendment is to deal with question of simple construction of documents and/or statutes or on the determination of facts which ex facie are not hostile and contentious between the parties. This is to enable simple matters to be settled by the court without the expense of bringing an action in the usual common way by the issuance of Writ of Summons. See: National Bank of Nig, & Anor. V. Lady Alakija & Anor. (1978) 9 – 10 S.C. 59 at 71 per Kayode Eso JSC (of blessed memory). “An Originating Summons is therefore intended to be used in limited situations. It is ideal for construction and interpretation of documents. See also: University of Lagos V. Aigoro (1991) 3 NWLR (Pt. 179) 376 at 383. In the instant appeal before this court, the Appellants had approached the lower court, by their action commenced by the mode of Originating Summons. They had sought for the interpretation and/or construction of some provisions of the Electoral Act 2010 as Amended. These questions had earlier on been set out in this Judgment. The duty of the lower court in that circumstance was to consider and pronounce on those questions. The Supreme Court in the case of Igbodin & Ors. V. Obianke & Ors (1976) 10 NSCC 467 at 474 per Obaseki JSC (as he then was) stated as follows:-
“A court of law is required and expected in all proceedings before it to admit and act on all legal evidence before it. It is at liberty when considering the Judgment to be delivered to accept or reject it as credible or incredible attach what weight it considers such evidence deserves and give it proper assessment and evaluation to enable it arrive at a just and proper judgment in the case. We were satisfied that in the instant case, the case now on appeal before us, the learned trial Judge had not acted on all the admissible evidence before him. What effect the evidence the learned trial Judge expunged would have had on his mind if he has considered them, we were unable to determine and we therefore decided, in the interest of justice and of all the parties, to set aside the judgment and orders of the learned trial judge (Aghoghovbia,
J.J. and order a retrial de novo before another judge in the appropriate Judicial Division of the High Court of Bendel State.”
On the need for Court to consider and pronounce on all issues raised before it, See also: Ella V. Agbo (1999) 8 NWLR (Pt. 613) 139 at 151; Overseas Construction Co. Ltd. V. Creek Enterprises (Nig.) Ltd (1985) 3 NWLR (Pt. 13) 407, or (1985) 12 S.C. 158 at 192 – 193; Udo v. C.R.S. Newspaper Corp. (2001) 22 W.R.N 53 at 89 or (2001) 14 NWLR (pt. 732) 116 at 161 – 162; Odiefe V. Aniemeka (1992) 7 NWLR (Pt. 251) 25; Madiebo V. Nwankwo (2001) 29 W.R.N, 137 at 145.
The main plank of the Appellants appeal before this court rests on paragraph 6.2. of their Brief of Argument. Therein, the Appellants contended that two (2) questions in their Amended Originating Summons remained unanswered by the trial court. The two questions are:
(1) Whether having regards to the extant provisions of the Electoral Act 2010, and the 1st Defendant’s Electoral Guide Lines 2010, it is not mandatory for the 1st Defendant to hold primaries in all elective positions?
(2) Whether by the extant provision of Section 87 (4) paragraph C (1) of the Electoral Act, it is not mandatory for the 1st Defendant to hold special congress in the Federal Constituency with delegates voting for each of the aspirants in designated centres on specified dates.
By the mode of commencement of this suit by Originating Summons, the Appellants had asked, and which the trial court was duty bound to answer, was the extant provisions of Electoral Act 2010, and the 1st Defendant’s Electoral Guidelines 2010 on the 1st Defendant to hold primaries in all elective positions. The trial court by this question is duty bound to set out all the provisions of the Electoral Act 2010 relating to conduct of primaries by the political parties. Set out the 1st Respondents Guidelines on conduct of primaries into all Elective Positions. The trial court will then go further to juxtapose those statutory provisions and of the Guidelines after effective construction and answer whether the 1st Respondent was duty bound to comply or not.
Again on the 2nd plank of question put by the Appellants, the trial court was duty bound to state the provisions of Section 87 (4) paragraph C (1) of the Electoral Act 2010, juxtapose same with the facts contained in the affidavit evidence, then give an effective construction whether it was mandatory for the 1st Defendant to hold special congress in the Federal Constituency with delegates voting for each of the aspirants in designated centres on specified dates. What is stated above, remains the duty which the court must do in an action commenced before it by Originating Summons.
In the Instant appeal, the trial court said it had evaluated the affidavit evidence, the exhibits attached thereto and the written addresses of parties, the court on page 356 of the record of appeal in its Judgment stated as follows:
“I have found as a fact that indeed there were primaries held and the 3rd Defendant emerged as a winner, all the allegations of forgery of the exhibits by the Plaintiff has (sic) not been established, allegation of forgery is a crime which the Plaintiff must proof (sic) beyond reasonable doubt.”
From the above, no doubt that the trial court did not answer the question put in by the Appellants. It did not state law which is the most fundamental; it did not give construction to the law which is its primary function. The court paid its attention to the facts before it only to arrive at its decision. Those findings of fact by the trial court contained on page 357 of the records of appeal remain unhelpful to the position of the court. Those findings of fact by the trial court are as follows:
(1) It was the findings of the trial Federal High Court that the 1st Plaintiff who wants the court to exercise to make a consequential order had indeed decamped from the 1st Defendant party (page 351 of the record).
(2) That when parties were joined in the Suit and an Amended Originating Summons filed, the 1st Plaintiff tried to improve on his case by jettisoning earlier document such as Exhibit ‘E’ a letter from the said Plaintiff where he wants to be made a concensus candidate (page 355 of the record).
(3) That the 1st Plaintiff is the architect of non-compliance with Section 87 of the Electoral Act 2010 since he wants to be made a concensus candidate (page 355 of the record).
(4) That all allegations by the Plaintiffs of forgery of Exhibits have not been established (page 356 of record).
(5) That the Plaintiffs who asked for the re-run variously failed to establish their case before the court in the light of the counter affidavit before the court (page 357 of the record).
On examination of these findings of fact by the trial court, it is clear that the court did not answer the questions brought before it for resolution by the Appellants. I do agree with the submission of the learned counsel to the Appellants in the reply brief filed on the 20/7/12 at page 9 paragraph 2.15, when he submitted that on questions put by Originating Summons, there is no legal room for “implied answers” or “implied evaluation of facts or findings of facts”. This must be seen expressly from the body of the Judgment. There is none on the body of the trial court’s Judgment, which is the subject matter of this appeal. Now which is the way forward? The Supreme Court provided us with a guide in the case of Igbodin V. Obianke & Ors (supra). In the interest of Justice to set aside the Judgment and the orders of the learned trial Judge (Buba J.) of the Federal High Court, and order a retrial de novo before another Judge of the Federal High Court in the Division where this action emanates.
In the final analysis, I find this appeal to be meritorious and it is hereby allowed. The Judgment of the lower court Coram Buba J. delivered on the 2nd of November, 2011 is hereby set aside by this court.
2. This court has ordered that the case be remitted back to the Hon. Chief Judge, Federal High Court for a retrial de novo before another Judge.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I too, agree that the appeal is meritorious and it is hereby allowed. The judgment of the lower court delivered on 21/1/2011 is hereby set aside; and I abide by all the consequential orders made in the lead Judgment including that relating to costs.
Appearances
J.O. ODION, A.A. OLOYEDE (MISS)For Appellant
AND
AMEH IGBOCHI for 1st Respondent
MRS. B.D. EKPUDA for 3rd RespondentFor Respondent
