CHIEF FRANCIS UCHENNA UGWU & ORS V. PEOPLES DEMOCRATIC PARTY & ORS
(2013)LCN/6015(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/E/259/2012
RATIO
JURISDICTION: THE COURT SHOULD NOT DECLINE JURISDICTION BREVI MANU
The court should not decline jurisdiction brevi manu. To do so may engender the employment of force of arms by the contending parties. A trial court (and nay an appellate court) has a duty to suo motu deal with issue regarding whether or not it has jurisdiction to entertain a matter before it. See Alaeto v. Nwapi (2007) All FWLR (pt 375); Adesanya vs. President, F.R.N Thomas v. Olujosoye (1986)1 NWLR (pt.18) 669. (2012) 12 NWLR Emenike v. PDP (Fabiyi, J.S.C) In short, the court is imbued with due jurisdiction to pronounce on the dispute presented by the parties herein.”PER EMMANUEL AKOMAYE AGIM, J.C.A.
ELECTION PETITION: MATTERS RELATING TO NOMINATION OF CANDIDATES OF POLITICAL PARTIES ARE TREATED AS NOT JUSTICIABLE
Let me state right away that matters relating to nomination of the candidate of a political party are regarded as domestic affairs and are generally treated as not justiceable. This has been so for quite sometime now. See Onuoha vs. Okafor (1983) 2 SCNLR 244; Ehinlanwo vs. Oke (2008) 16 NWLR (pt. 1113) 357.PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. CHIEF FRANCIS UCHENNA UGWU
2. EMEKA INNOCENT ABA
3. EUGENE ONYEBUCHI ODO
4. CHARLES IFEANYI OGBUANYA
5. AUGUSTINE ISIANI – Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. SENATOR AYOGU EZE
4. HON. IFEANYI UGWU ANYI
5. EZEUGWU IKECHUKWU MELETUS
6. JOHN KELVIN UKUTA
7. NWAMBA CHRISTIAN CHINEDU – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 1st of February, 2011, the plaintiffs, now appellants herein, commenced Suit No PHC/ABJ/CS/105/2011 by originating Summons in the Federal High Court at Abuja. The Suit was later transferred by the Honourable Chief Judge of the Federal High Court to Enugu Judicial Division of the Court and renumbered FHC/EN/CS/47/2011. In the said originating Summons, the plaintiffs claimed for the determination of the following questions
(i) Whether the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999 is within the exclusive domain of section 87 of the Electoral Act 2010 as amended;
(ii) Whether having determined the manner or procedure of conducting the mandatory party primaries for the purpose of nomination and sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, a political party (such as the 1st defendant) is at liberty to ignore, disregard or abandon the outcome of the primaries as conducted.
(iii) Whether each of the plaintiffs, that is, Chief Francis Uchenna Ugwu, Emeka Innocent Aba, Eugene Onyebuchi Odo, Charles Ifeanyi Ogbuanya and Augustina Isiani who took part and participated in the primaries held on various dates in the month of January 2011, by the 1st defendant, for the nomination of candidates in respect of the Enugu North Senatorial District, Igboeze North/Udenu Federal Constituency, Udenu State Constituency, Uzo Uwani State Constituency and Nsukka East State Constituency respectively, and won, are entitled to have their names forwarded to the 2nd defendant by the 1st defendant as persons eligible to contest the general elections 2011 as candidates of the People Democratic Party.
The appellants stated therein that if the answers to the above questions are in the affirmative, each will seek a declaration that he is the person entitled exclusively to have his name submitted by the 1st respondent to the 2nd respondent as the candidate for election into a particular National Assembly Seat or State House of Assembly Seat as the case may be for his Constituency in the 2011 general elections on the platform of the 1st respondent, injunction to restrain the 1st respondent from submitting any other names other than the names of the appellants herein as candidates of the 1st respondent for the said elections and an order of injunction restraining the 2nd respondent from accepting the name of any other person or persons in place or in substitution for the appellants as candidates for the elections aforesaid on the platform of the 1st respondent.
The affidavit in support of the Originating summons contained the facts upon which the appellants relied for their Suit. The Summary of the facts therein are as follows. The Plaintiffs are members of the People’s Democratic Party, a registered Political Party. Each of them polled the highest number of votes at the end of Voting at a Special Congress of the PDP held in their respective National Assembly or State House of Assembly constituency in Enugu North Senatorial District and was accordingly declared the Winner of the Primaries of the Party, to be the Party’s candidate at the 2011 General Elections into National Assembly and State House of Assembly seats. The said Primaries to elect the 1st respondent’s candidates for State House of Assembly and National Assembly Elections held on 9th January 2011 and 11th January 2011, respectively, following the directives of the National Executive Committee of the PDP to all State Chapters of the Party throughout the Country and relevant Notices to hold the said primaries.
The Officials of the 2nd respondent were present at each of the aforesaid primaries conducted by the 1st respondent for the purpose of determining who will be its flag bearers for the forthcoming general elections to be held later the same year. The said primaries were organized by an electoral Panel appointed by the National Executive Committee of the 1st respondent for that purpose.
The appellants visited the National Secretariat of the PDP on the 28-1-2011 to collect requisite eligibility forms, which said forms are to be completed by successful candidates at the primaries, but no such forms were given to any of them. Upon inquiring, they were given reasonable grounds to suspect that the said forms have been given to persons other than themselves. It became obvious that the appellants intended to deny them the fruits of their success at the said respective primaries conducted. It is on the basis of these facts that the appellants commenced this suit at the trial court.
When this Suit was commenced there were only two defendants. Subsequently, when the 3rd to 7th respondents became aware of the pendence of the Suit, they applied to be joined as defendants. They were accordingly joined by order of the trial court.
The 1st respondent entered an unconditional appearance. The 2nd respondent entered a conditional appearance. All the respondents filed counter affidavits in opposition to the Originating Summons and the supporting affidavit. The Summary of the facts deposed to in the counter affidavits particularly that of the 1st defendant are as follows:- On 10th and 11th January 2011, the Party Primaries for election of 1st respondent’s candidate for the State House of Assembly and National Assembly Seats held in Enugu West and Enugu East Senatorial Districts. The Primary elections did not hold in Enugu North Senatorial District. The then National Chairman of the 1st respondent did not allow the primaries in Enugu North to hold as he insisted on single-handedly selecting the appellants as the Candidates to represent the 1st respondent at the general elections, without them having been elected by the special congresses of the party. After creating this problem, the then National Chairman of the 1st respondent suddenly ceased to be the National Chairman of the Party on 12-1-2011. Several reports and complaints were made to the National Assembly Primary Election Appeal Panel as well as the National Working Committee of the Party that the Party Primaries were hijacked by the then National Chairman. The 3rd and 4th Respondents in particular wrote complaining that the electoral Panel did not go to the designated venue of the primaries, where the voters waited till evening in vain. It is as a result of these protests that the National Executive Committee of the Party set up another electoral Panel to conduct a re-run of the Primaries. The re-run held on 20-1-2011 and was observed by the 2nd respondent’s Officials. The appellants participated in the re-run and lost the primaries.
The 3rd – 7th respondents secured the highest numbers of votes in their respective election primaries and were declared elected. The re-run results were validated by the 2nd respondent. The 3rd -7th respondents were presented by the 1st respondent to the 2nd respondent as the party’s candidates for the general elections to the various legislative Houses seats for Enugu North Senatorial District. The appellants were not given eligibility forms because they did not win the re-run elections. Along with their counter-affidavit, the respondents exhibited the list of voters who voted at the re-run and the results for each primary election in Enugu North on 20-1-2011.
The appellants filed a further affidavit in support of the originating Summons. Therein paragraphs 7-29 of the counter-affidavit of the 3rd – 7th respondents were generally denied. It is also stated therein inter alia.
(1) That the results exhibited as R1 to R5 in the said counter affidavit related to result of National Assembly Primary Election 2010.
(2) That the deponent upon perusing exhibits R7 and R8 of the said counter-affidavit noted the complain about the plan of Dr. Okwesilieze Nwodo, the then National Chairman of 1st respondent to handpick the persons to be sponsored by 1st respondent as its candidate for the election into legislative Houses in Enugu North without such persons having been elected through the process of party primaries.
(3) That exhibit R8 confirms that the Primaries were held in Enugu North on the 11th January, 2011.
(4) That the 2nd defendant’s guidelines for the 2011 general elections directed that political parties must conclude their Primaries on or before 15th January, 2011.
As a result of the facts in the counter-affidavit, the appellants brought an application to amend the originating Summons to contend that the re-run Primaries of 20th January 2011 were illegal and to get them declared so. The application was still pending, when the respondents applied to the trial court by Motions on Notice for extension of time to bring an application to strike out the Suit for being non justiceable and for lack of jurisdiction to entertain same. Each of the three Motions were supported by an affidavit stating some of the facts already in the affidavit, and further affidavit in support of the originating summons and the Counter affidavits in opposition thereto. The appellants filed Counter- affidavits to the affidavits in support of the Motions and opposed the grant of the applications.
The trial court on 16th May 2012 granted the extension of time and proceeded to consider the preliminary objection. It upheld the objection and dismissed the Suit for being non-justiceable and for lack of jurisdiction. On the 4th of June 2012, the appellants filed a notice of appeal commencing this appeal on six grounds. All the Parties to this appeal have filed and exchanged briefs of argument.
The appellants in their brief raised the following issues for determination in this appeal:
1. Was the learned trial Judge right in making an order dismissing the suit instead of striking out the suit, considering the prayers sought by the 1st and 2nd Respondents (i.e. 1st & 2nd Defendants Objections) in their notices of preliminary objection and written addresses (Ground 1).
2. Whether the learned trial Judge was not in error when he entertained the notice of preliminary objection and granted same notwithstanding the combined effect of the provisions of Order 29 and 48 of the Federal High Court Civil Procedure Rules 2009 (Ground 2).
3. Whether the learned trial Judge was right in upholding the preliminary objection and relied on the Supreme Court decision in SENATOR YAKUBU GARBA LADO & ORS VS. CONGRESS FOR PROGRESSIVE CHANGE & ORS. (2012) 48 NSCQR page 501. Notwithstanding the obvious inapplicability of that case in the case at hand (Grounds 3 & 4).
4. Was the learned trial Judge right when in the ruling of 16/5/2012, the originating summons and the affidavit in support of the originating summons were not considered; and proceeded to uphold the preliminary objection despite the unchallenged and uncontroverted facts deposed to by the Appellants in paragraphs 7, 8, 9 and 10 exhibits “PCA1” and “PCA2” of the counter affidavit dated 21/2/2012 filed in opposition to the said preliminary objection. (Ground 5 & 6)
The respondents have pointed out that the appellants did not raise or argue any issue from ground 6 of their notice of appeal and for this reason the ground should be treated as abandoned. It is clear that the above five issues raised for determination in this appeal by the appellants have no relationship with and do not touch on ground 6. As it is the ground is not argued in the briefs filed by the appellants. It becomes obvious therefore, that the said ground 6 is abandoned as the appellant no longer challenge the decision of the trial Court on that ground. See OHAKA V. EZE & ORS (2008) LPELR – 44698 (CA) held 3
The 1st respondent in its brief proposed the following issues for determination:
1. Whether the learned trial Judge was right in making an order of dismissal in the circumstances herein (ground 1).
2. Was the learned trial Judge right in extending time for the defendants to raise the issue of jurisdiction outside the period stipulated in order 29 Rules 4 (a) a Federal High Court Rules 2009 (Ground 2).
3. Whether the learned trial Judge was right in relying on the Supreme Court decision in SENATOR Y. G. LADO & ORS VS. C. P. C & ORS (2011) All FWLR (pt. 607) 598 SC To Uphold the Preliminary Objections (grounds 3 and 4)
4. Did the learned trial Judge consider the originating Summons and the facts deposed to in the Affidavits and Counter Affidavits of the parties before her in arriving at the decision upholding the preliminary objection and was any miscarriage of Justice Occasioned to the appellants (Grounds 5).
5. Is this a proper case for the exercise of the court’s powers under S. 15 of the Court of Appeal Act 2009 in view of the Hostile and Irreconcilably conflicting depositions in the affidavits and counter-affidavits of the Parties herein and the yet undetermined motion of the 3rd- 7th respondents in respect thereof.
The 2nd respondent in its brief raised one issue for determination as follows:- “Whether or not the Honourable Court was right in holding that it lacked jurisdiction to entertain the case in line with the Supreme Court decision in the case of SENATOR YAKUBU GARBA LADO & ORS VS. CONGRESS FOR PROGRESSIVE CHANGE & Ors (2011) 48 NSCQR 501.”
The 3rd to 7th respondents in their brief raised three issues for determination as follows:-
1.Whether in the circumstances an order of striking out of the Appellants’ suit by the Court does not have the same effect as an order of dismissal; and whether the order of dismissal of the Appellants’ suit instead of striking it out is fatal? (Distilled from ground 1 of the Grounds of Appeal)
2. Whether in the circumstances the learned trial Judge was wrong to have delivered a ruling on the Notices of Preliminary Objection by the 1st and 2nd respondents? (Distilled from ground 2 of the Grounds of Appeal)
3. Whether the trial Court was not right in holding that the Appellants’ suit raises the issue of two primary elections by the 1st respondent thereby making it non- justiciable on the authority of the case of YAKUBU GARBA LADO V. CONGRESS for Progressive Change (2011) 18 NWLR (pt. 1279) 689; and whether in arriving at this decision, the Court did not examine the totality of evidence placed before it including the Appellants ‘Affidavit in support of the Originating Summons?(Distilled from Ground 3, 4, and 5, of the Grounds of Appeal)
The issues formulated in the appellants brief and the ones in the 1st respondent’s brief are in substance the same and cover those raised by the 1st and 3rd to 7th respondents.
I have chosen to determine this appeal on the basis of the issues formulated by the appellants.
Under issue No 1, the appellants complain against the part of the decision of the trial Court dismissing the suit after holding that it lacks jurisdiction to entertain the subject matter of the suit.
All sides agree that upon the trial court’s determination that it lacked the jurisdiction to entertain the subject matter it should have struck out and not dismiss the suit. The Respondents in the argument of their preliminary objection at the trial Court prayed for an order striking out the suit. There is no need to belabour this point as it is trite law that the proper order a court should make where it has no jurisdiction to entertain a case for any reason is to strike it out except where the rules or statute provides otherwise. It is also trite that a Court cannot give a party what is not asked for by the party all something different from what the party asked for. The trial Court was clearly in error when it dismissed instead of striking out the suit.
The significance of an order of striking out is that the merit of the case in terms of the rights or obligations sought to be enforced has not been determined and that the case is terminated on other grounds. This is what distinguishes an order of striking out from one of dismissal. An order of dismissal is usually made upon a determination of the merits of the dispute in the case. So the distinction between a striking out and a dismissal does not lie in the idea that one allows the case to be relitigated while the other permanently bars further litigation over the subject matter. This is because it is not in all situations that a striking out enables re-litigation of a case or a dismissal absolutely bars re-litigation of the case.
There are situations where a case can no longer be re-opened even though it was struck out. An example of such a case is where a case is struck out because the subject matter of the case is not within the jurisdiction of the court. Another example is where a case is struck out because the proceedings pending before a court can no longer go on for the reason that it is caught up by a sunset legislation. This occurs frequently in election cases where statute prescribe time limit within which the election petition must be concluded. Once the prescribed time expires, if the petition is not yet concluded, the proceedings abate and can be struck out. There are situations where a matter though dismissed can be restored on the cause list or re-litigated. One example is where the rules of Court permit the relisting of such a dismissed case. Another examples is where the matter at the trial stage is dismissed for want of prosecution. The Supreme Court in ABIEGBE V. UGBODUME (1973) LPELR -36 HELD 1 OR (1973) 1 SC. 103 held, with particular respect to such a case, that “to dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action”.
Another example is dismissal for non-compliance with some procedural requirements. A typical example of this is non-compliance with conditions of appeal or failure to compile and transmits records within the prescribed time. This often results in the dismissal of the Appeal without prejudice to the right of the appellant to bring back the appeal. The Supreme Court held in OBASI BROTHERS MERCHANT CO-LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 2 SCNJ 272 at 279 that “It is not all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the Court views such dismissal as mere striking out.” In my view, the primary determinant of whether a dismissed or struck out matter can be re-opened is the basis or reason for the striking out or dismissal.
This clarification of the distinction between striking out and dismissal and the basis of such distinction will help a determination of the question of whether the error of the trial Court in ordering dismissal instead of striking out is substantial in that it occasions a miscarriage of Justice. The learned Senior Advocate for the 1st respondent has argued that “The Appellants who complain about the final order of the trial Court, have not demonstrated any prejudice or miscarriage of Justice that has arisen or is inflicted on them by such an order in the peculiar circumstances of the decision of the Lower Court”. I agree with this submission. The Learned Senior Advocate for the appellant did not even contend that the error has occasioned a miscarriage of justice.
The question that arises at this juncture is whether this Court should allow the appeal on this ground and set aside the decision of the trial Court therefor.Where the error of law, even if corrected will not change the decision appealed against, the appeal will not be allowed on the ground of that error, as it is not substantial and has not occasioned any miscarriage of Justice. It is not every error in the proceedings or Judgment of a trial court that can result in a decision being set aside. It is only such that is substantial and has occasioned a miscarriage of Justice in that the decision complained of is the result of that error, so that upon correction of the error the decision is certain to be different.
Having thus restated the law on the point, I will proceed to find out if the error of the trial court by ordering a dismissal instead of a striking out is substantial or has occasioned a miscarriage of Justice in this case. An order of dismissal and one of striking out a suit for non Justiceability of the subject matter and lack of Jurisdiction to entertain the subject matter have the same effect. It is the determination of the court that it lacks the jurisdiction to entertain the subject matter that absolutely precludes the relitigation of the case. The termination of the case following this determination by order of dismissal or striking out has no effect on the determination of the Court that it has no jurisdiction to entertain the subject matter. So that the subject matter cannot be relitigated even of the Order is one of striking out. Since the consequence of the determination of the trial court will remain the same irrespective of whether the disposing Order is a striking out or dismissal, the error of the trial court in dismissing instead of striking out the suit is not substantial and has not occasioned any miscarriage of Justice. I agree with the Learned Senior Advocate for the 1st Respondent that even if this court varies the order from one of dismissal to one of striking out, it will produce no legal effect and this Court will thereby be acting in vain without showing that the error is substantial or has occasioned a miscarriage of Justice, the arguments under issue no I and the ground 1 of this appeal on which it is predicated, serve no useful purpose and amount to arid legality. For this reason, this appeal cannot succeed on this issue. I therefore resolve issue No 1 in favour of the respondents.
Under issue No 2 Learned Senior Advocate for the appellant argued that the hearing and determination of the preliminary objection of the respondents by the trial Court contravene Orders 29 and 48 Rule 4 of the Federal High Court (Civil Procedure Rules), 2009 and for this reason this Court should declare the ruling of the trial Court incompetent and resolve issue No. 2 in favour of the appellants. This submission of the Learned Senior Advocate is based on his view that by virtue of the mandatory wordings of the provisions of the above rules, compliance therewith is mandatory and cannot be waived and that in the light of the provisions of the above rules, the trial Court was mandatorily bound to take the objection at the conclusion of the trial and not before then.
Learned Senior Advocate for the 1st respondent argued replicando that the wordings of the said rules though couched in mandatory terms are merely directory and that the ground for the objection being one of jurisdiction can be taken at any stage of the proceedings. Learned Counsel for the 2nd respondent argued that the said rules give the trial Court the discretion to extend the time for bringing the objection, the trial Court rightly exercised that discretion and that the issue of jurisdiction can be raised at any stage of the proceedings. Learned Counsel for the 3rd to 7th respondents also argued that the appellant did not appeal against the order enlarging time to bring the objection, that the issue of non compliance with Orders 29 and 48 is being raised in this court for the first time without the prior leave of this court having been first obtained so they cannot competently raise and argue that issue and that an issue of jurisdiction can be raised at any stage of a proceeding.
I will first consider the argument of Learned Counsel for the 3rd – 7th respondents that appellants cannot competently contend that the trial Court contravened Order 29 and Order 48 by taking the objection before and not at the conclusion of trial. This is because the argument is a challenge to the competence of issue No 2 and the entire argument based on it. One of the basis for this challenge was that the matter was not raised at the lower court and is rather being raised here for the first time without leave of Court. I do not think that this contention is valid. The record of this appeal at pages 752 – 753 show that at the trial Court Learned Senior Advocate relied on Order 29 Rules (2) (3), (4), and (5) to insist that the appellants’ application for amendment of the originating summons be taken before the respondents’ motions applying for the suit to be struck out for lack of jurisdiction. Learned Senior Advocate also raised the issue of non compliance with Order 29 during the hearing of the preliminary objection. This is acknowledged by the trial Court in the judgment resulting in this appeal as follows:-
“Learned Counsel for the plaintiffs/respondents on the contrary submitted that order 29 is mandatory and the time prescribed therein for challenging the jurisdiction of the Court cannot be extended. That it is so because the order carries a sanction. It is further submitted that order 29 (4) does not contemplate an applicant who wishes to challenge the jurisdiction of the Court to pray for an extension of time.” The trial court after considering those submissions held that:
“In my candid opinion, I believe that lack of compliance with order 29 and the reason for the delay has been explained as can be seen in paragraphs 17 – 22 of their affidavit. The reason is that the judicial authority on the basis of which this application is brought was decided by the Supreme Court only on 16th December 2011, long after the parties in this case had filed their processes in respect to the substantive application.” It is clear that the issue of non-compliance with Order 29 is not a fresh issue. The appellants do not require leave to raise and argue it here. The issue is validly raised and argued.
Compliance with Order 48 Rule 4 is a condition that a Court enforces when it has decided to grant an application for extension of time. The question of compliance with it arises when the extension of time is granted. It is not a pre-condition for the grant of an application for extension of time. So the appellants could not have contended that extension of time should not be granted because the penalty for delay had not been paid. What is important is that the appellants objected to the extension of time to dispute jurisdiction and to the hearing of the objection before conclusion of the trial. The trial court chose to grant the extension of time and hear the objection but failed to enforce or apply Order 48 Rule 4 while granting the extension of time. In an appeal against the decision extending time and hearing the objection before conclusion of trial, non compliance with Order 48 Rule 4 can be validly raised in arguing that ground. It falls within the general rubric of the objection to the grant of extension of time which had been raised at the trial Court. It matters not that it is now an additional reason for the objection because it has arisen ex post facto.
The argument that there is no appeal against the decision to extend time and hear the objection cannot stand in the light of ground 3 which contends that the trial Court should not have proceeded to rule on the preliminary objection because of the non-compliance with Orders 29 and 48.
Having cleared these preliminary points, I will now come back to the merits of the dispute under issue No 2. The crux of the matter is the interpretation, application and enforcement of Order 29 and Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009. For ease of reference and to facilitate the understanding of the way this matter is considered here, I will reproduce the exact provision of the above Rules. Order 29 states:
“1. Where a defendant wishes to-
(a) dispute the Court’s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
2. A defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
3. A defendant who files a memorandum of appearance does not, by so doing lose any right that he may have to dispute the Court’s jurisdiction.
4. An application under this order shall:
(a) be made within twenty one days after service on the defendant of the originating process and
(b) be supported by affidavit where it is not based on ground of law alone.
5. If the defendant files an acknowledgment of service and does not make such application within the period specified in rule 4 of this order, any such application can only be taken at the conclusion of the trial.”
Order 48 Rule 4 states: “The judge may, often as he deems fit and either before or after the expiration of the time appointed by these Rules or by judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the judge or under these rules shall pay to the Court an additional fee of N200.00 (Two hundred Naira) for each day of such default at the time of compliance.”
It is clear that the provisions of Order 29 Rules 2, 4 and 5 and the proviso to Order 48 rule 4 are couched in mandatory terms. I agree with Learned Senior Advocate for the appellants, and as conceded by the Learned Senior Advocate for the 1st respondent, that generally such mandatory terms, like “shall,” “must” and the like, by reason of their mandatory nature demand and require that they must be complied with. Compliance with what they command cannot be waived. This point is so settled and elementary that it need not be dwelt on beyond what I have said. There are, however exceptions to this general rule as follows:-
1. Where the mandatory words are contained in the rules of procedure of a Court or prescribe rules of procedure of a Court and the demand of justice dictate a permissive application.
2. Where other provisions of an enactment or a written document show that compliance with such mandatory words can be waived or that they should be applied permissively.
Mandatory words in Rules of court are not applied in the same way as mandatory words in a statute or agreement as Learned Senior Advocate for the appellants has done in his argument. This is because the effect of such mandatory words differ with where they are contained. Mandatory words in a statute are sacrosanct, do not allow for condonation of departures from them and are applied strictly. Mandatory words in the Rules of Court are not sacrosanct and are applied permissively, allowing for their discretionary application by the Court in the interest of justice.
The Supreme Court in OBI VS. INEC (2008) 1-2 SC 23 at 31 held per Tabai JSC that “Rules of Court remain rules of Court and cannot be accorded the status as immutable as statutory provisions.” The Court relied on its earlier decision in KATTO VS. CBN (1991) 9 NWLR (pt. 214) 126 at 147 held 14 that “As mandatory Rules of Courts are not sacrosanct as mandatory statutory provisions, Courts of Justice are more inclined to regard as directory or permissive any provisions in the Rules of Court which appears mandatory, if it is implicit in the provision in question or if combination of other provisions with the provision in question so dictates, or if the ends of justice demand that it be so construed.” Stating the principle underlying this rule, Oputa JSC in OLOBA VS. AKEREJA (1988) 3 NWLR (pt. 84) 508 at page 528 stated that “all rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any Rule compliance with which will lead to outright injustice.”The Courts must strive to ensure that justice is not enslaved and destroyed by the very rules that are meant to facilitate its attainment. Historical and contemporary experience has shown that a rigid application of the rules of procedure of Courts without regard for the effect of such application on the objectives of law and its administration can defeat justice. Without justice the law remains an empty shell of meaningless phrase.
Another reason why the provisions of Orders 29 and 48 Rule 4 should be treated as directory is that there are other provisions in the same Federal High Court (Civil Procedure) Rules that stipulate that non compliance with any part of the rules including Orders 29 and 48 can be condoned by the Court. This is specifically provided for in Order 51 Rule 1 (1) of the said Federal High Court (Civil Procedure) Rules which states the effect of non-compliance with any part of the rules. It states that: “Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these Rules whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
By virtue of Rule 1(2) of the said Order 51, any process or any part of the proceedings that is not in compliance with the said Rules will remain effective but albeit voidable at the instance of the adverse party who may bring an application to have such process or proceedings set aside by the Court. Until the process or proceedings is set aside, it remains effective. The said Rule 1(2) provide that: “The Court may on the ground that there has been such a failure as mentioned in sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceeding in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”
The time prescribed in Order 29 Rule 4 (a) to make application to object to jurisdiction can be extended by virtue of Order 48 Rule 4 which provides that: “The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding. Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the court an additional fee of N200.00 (Two hundred Naira) for each day of such default at the time of compliance.”
Finally, the mandatory nature of Order 29 Rule 2 is whittled down by Rule 3 therein. So that although rule 2 provides that a defendant making such application, must first file along with the application a memorandum of appearance stating that he is appearing conditionally, Rule 3 provides that a defendant who files an memorandum of appearance does not, by so doing, lose any right that he may have to dispute the Court’s jurisdiction. I agree with the Learned Senior Advocate for the 1st respondent that by virtue of Rule 3 non compliance with Rule 2 does not rob the defendant his right to dispute the court’s jurisdiction. It is noteworthy that the appellant, upon being served with the 3rd-7th respondents’ motion dated 9-5-2011 and filed 10-5-2011 disputing inter alia the jurisdiction to entertain the suit proceeded to file on the 26-5-2011 a motion on notice dated 24-5-2011 praying for amendment of the originating summons and also filed on the 26-5-2011 a counter-affidavit to the said motion of the 3rd-7th respondents. Later in the proceedings, after the trial Court had decided that the 3rd-7th respondents motion disputing jurisdiction be taken first, the 1st and 2nd respondents, respectively filed their motions disputing the justiciability of the claim and the jurisdiction of the Court to entertain same.
The appellants filed a counter-affidavit to each of the said motions on 21-2-2012. The appellants did not apply to have the respondents’ motions disputing jurisdiction set aside for non-compliance with Order 29 Rules 2, 4(a) and 5 of the Federal High Court (Civil Procedure) Rules 2009 as required by Order 51 Rules 2 (1) of the same Rules which states: “Any application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings. Any application under sub-rule(1) of this rule may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or motion on notice.” As is clear from the above provision such application ought to have been made before the party applying takes any fresh step. The appellants, instead of bringing such application, preferred to file a motion on notice praying for the amendment of the originating summons and counter affidavits to the respective motions objecting to jurisdiction. Throughout the trial no such application was filed. They rather challenged the process of disputing jurisdiction for non compliance with Order 29 during the hearing of the motion disputing jurisdiction. This is contrary to the provisions of Order 51 rules 2 and 3 which are also couched in mandatory terms as can be seen above. It is paradoxical that a party who insists that mandatory provisions of the rules must be strictly complied with and cannot be waived, has not complied with the mandatory terms of Order 51 Rule 2 which is not only mandatory but also prohibitory because it states that such an application “shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings. The appellants cannot depart from and refuse to follow the rules while objecting to a process or proceedings on grounds of non-compliance with the same rules by the other party. He did not seek leave of the trial court to depart from the rules in contending that the objection to jurisdiction is in breach of Order 29. The respondents did not object to the competence of their argument on non-compliance with Order 51 rule 2 and the trial court said nothing about it and proceeded to determine the merit of their argument, thereby condoning their non-compliance with Order 51. Yet appellant insists that the Court has no discretion to waive mandatory compliance with the rules. I do not think so. The court has a discretion to condon or refuse to condon non-compliance with the rules. The trial Court in this case condoned the non-compliance with Order 29 and granted an extension of time to dispute the jurisdiction and determined the dispute.
Learned Senior Advocate for the appellants also contended that the proviso to Order 48 Rule 4 of the Federal High Court (Civil Procedure Rules 2009) is a condition precedent to the grant of an extension of time and that since that proviso was not complied with by the respondents, the extension of time should not have been granted and for this reason this Court should declare the ruling incompetent. As I have already held herein the proviso to Order 48 Rule 4 is not a pre-condition for an application or grant of an application for extension of time. The submission of Learned Senior Advocate for appellant that “provisos are conditions precedent in statutes” is with due respects not correct. This proposition creates the impression that all provisos contain conditions precedent. A proviso is that part of a particular provision in an enactment or other document that begins with the phrase “provided,” that qualifies or limits the operation of the preceding part of that provision in a section of a statute or a rule in the Rules of a Court. It usually begins with the phrase “provided that” and then states the condition extension, addition, limitation or qualification. According to the Supreme Court in NDIC (LIQUIDATOR OF ALLIED BANK OF NIGERIA PLC) VS. OKEM (2004) 10 NWLR (pt. 880) 107 or (2004) LPELR-1999 held per Uwaifo JSC “the object of a proviso is normally to cut down or qualify or create exceptions to or relax in a defined sense the limitations imposed on powers conferred by a section of an enactment or document or to exclude some possible ground of interpretation of its extent, or modify the main part of a section of a statute to which it relates to restrain its absoluteness or generality.” A proviso in modifying the operation of a provision can instead of restricting its effect give it a more wider operation. See FAYEMI & ANOR VS. ONI & ORS (2010) LPELR – 4145 where this Court at Ilorin held per Salami JCA that “The essence of a proviso is to restrict the effect of the provision. But if the language of a proviso makes it plain that it was intended to have an operation more extensive than that of the provision it must be given such wider effect. If a proviso cannot be construed reasonably otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that “it speaks the last intention of the makers”
The proviso to Order 48 Rule 4 created a condition that should follow the decision to grant an extension so that the court in granting the extension of time can order the applicant to pay the additional fee of N200.00 for each day of default. The proviso makes additional provision for the payment of penalty for the default, upon being granted extension of time. It expressly states that the additional fee of N200 is for the default. There is nothing therein indicating that such payment is a condition precedent or requirement for the grant of extension of time. Where the court refused to grant extension of time, the obligation to pay the additional fee would naturally not arise. It arises only upon the grant of the extension of time.
For the foregoing reasons, Learned Senior Advocate for the 1st respondent also relied heavily on the now hallowed general principle that the issue of jurisdiction can be raised at any stage of a proceedings and in any manner to argue in support of the decision of the trial court to hear and determine the objection to jurisdiction before conclusion of the trial. Let me straight away say that while this general principle can influence the decision of the Court in extending the time prescribed in Order 29 Rule 4 (b) for disputing the jurisdiction of the Court, it cannot operate to take away the discretion of the Court under the provisions of Order 29 of the Federal High Court (Civil Procedure) Rules 2009 to decide when to hear objections to jurisdiction.
The general principle that once an objection to jurisdiction is raised, the Court must determine the objection before taking any further step does not allow the Court the discretion to decide when to hear the objection. In recent times some Courts in the exercise of their inherent jurisdiction to prevent abuse of their processes have refused to hear such objection immediately it is raised insisting that it will be taken along with the pending suit at the conclusion of the trial to avoid piece meal litigation. See for example the recent unreported decision of this Court in First Inland Bank PLC vs. Alliance International Nig. Ltd. (delivered in CA/E/96/2009 on 23-1-2013, where the decision of the trial Court not to take a jurisdictional objection when it was raised but to deal with it along with the substantive case at the conclusion of trial was upheld. This Court per Akeju JCA held ” Indeed the learned trial judge obviously had a duty to ensure the proper management and control of a case that had been in the court for about 9 years prior to the filing of the appellants’/applicants’ application. Considering the age of the case and the fact that the respondents had concluded their case, I find the position as stated by the learned trial judge to be in line with Order 29 (4) of the Federal High Court Rules 2009, that;
“An application under this Order shall:
(a) be made within twenty one days after the service
on the defendant of the originating process …”.
However, the application of the general principle that the Court must take the objection immediately it is raised is still prevalent.
It is trite law that a general principle of law, even if restated by case law, cannot override the provisions in an enactment, especially where those provisions are intended to modify, qualify or limit the application of the particular principle.
The intendment of the said Order 29 is to regulate when and how objections to the jurisdiction of Federal High Court can be raised in proceedings in that Court to prevent the use of such objections to frustrate the expeditious and economic disposal of cases and block access to Justice. Order 29 is a recent introduction in the light of the pervading abuse of the process of objections to the jurisdiction of Courts which has brought so much disrepute to the Courts. Order 29 intends that the objection be raised bonafide in such a manner that it does not interfere with the expeditions trial of the substantive suit. So that a Court in exercising its discretion under Order 29, must ensure that it does not allow the objection to be used to frustrate the pending suit. It is for the trial Court to decide within the terms of Order 29 when to hear the objection to jurisdiction.
In this case, the trial Court chose to hear the objection to jurisdiction before the conclusion of trial. Apart from contending that the trial Court did not comply with Order 29 and Order 48 Rule 4 by so choosing to hear the objection at that stage, the appellants did not contend or show that the discretion was not judicially and judiciously exercised. The appellants did not complain about the merit of the decision. I will therefore refrain from saying anything on that. Issue No 2 is therefore resolved in favour of the respondents. I will deal with issues Nos 3 and 4 together because the substance of the arguments under the two issues are the same.
Under issue No 3, Learned Senior Advocate for the appellant argued that the trial court was wrong to have relied on the supreme Court decision in LADO & ORS VS. CPC & ORS to uphold the objection to its jurisdiction to entertain the appellants’ suit when the facts are not the same and the said decision is inapplicable to the instant case. Under issue No 4, Learned Senior Advocate contended that the trial court was wrong to have determined the preliminary objection only on the basis of the affidavits in support of the motions and relied on the Supreme Court decisions in EMENIKE VS. PDP & ORS (cited as unreported but delivered on 25/5/2012, in suit No. SC. 443/2011) EYIBOH VS. ABIA & ORS (cited as unreported but delivered on 6/7/2012 in suit No. SC/38/2012, EMEKA VS. OKADIGBO (2012) 18 NWLR 55 and this Court’s decision in EMENIKE VS. PDP (2012) 5 NWLR (pt 1294) 555 to show that the trial Court wrongly relied on Lado’s case in determining the preliminary objection and that if the trial court had considered the originating summons and the entire evidence in all the affidavits relating to the originating summons or the merits of the case, its decision would have been different, and that the fact that two or more primaries held or are alleged to have held producing different candidates is not enough reason for the trial court to refuse without more to exercise jurisdiction to entertain the suit.
The Learned Senior Advocate for the 1st respondent argued replicando under issues nos 3 and 4 of the 1st respondents brief that the facts of Lado’s case are in material particulars the same with the facts of the instant case and so the trial court rightly relied on it to uphold the objection and that the trial court considered the originating summons and the affidavits of both sides relating to it as well as the motions raising the preliminary objection and the accompanying affidavits in deciding the objection. She also argued that the decisions of Emenike, Eyiboh and Okadigbo do not apply to the instant case. Learned Counsel for the 2nd respondent made the same reply in the 2nd respondent’s brief. The same submission was made by the Learned Counsel for the 3rd – 7th respondents under issue no 3 of their brief of argument.
Let me start with the question whether the trial Court rightly relied on Lado’s case in the light of the decisions in the cases of Emenike, Eyiboh and Okadigbo having regards to the facts of this case. I will preface the determination of this question with a brief restatement of the law on the use by this Court of already existing of judicial authorities as precedent to judicially determine a pending question.This Court is bound to follow the previous decisions of the Supreme Court or its previous decisions (until it departs from it) only if:
(i) the question resolved in the precedent case is the same as the question to be resolved in the pending case.
(ii) The resolution of that question was necessary to the determination of the precedent case and the present case depends on the resolution of that question for its determination
(iii) The significant or material facts in the precedent case are also present in the pending case, and
(iv) No additional facts appear in the pending case that might be treated as significant.
I agree with the submissions of the Learned Senior Advocate for the 1st respondent and the Counsel for the 1st and 3rd – 7th respondents that it is not every fact in the precedent and pending case that must be considered to determine if the two case are factually similar. Only facts that are significant or relevant to the resolution of the question in the precedent case and the pending case that should be considered. The precedent case and the pending case do not have to be identical in all facts.
I adopt the restatement of the Tobi JSC in Adetun Olade J.I. (Nig) Ltd vs. Nigerian Breweries PLC (2007) 5 NWLR (pt 1027) 415 at 436 that “stare decisis which means to abide by or adhere to decided cases, as a policy of court to stand by precedent, is based on a certain state of facts which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude.
And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same…”
I will now find out if Lado’s case is directly in point or on all fours with this case within the terms of the parameters I have outlined above. Firstly, what was the question that arose in this case or that was resolved by the trial court in this case and what was the question that was resolved in Lado’s case. From the terms of the originating summons, the appellants’ affidavit and further affidavit in support thereto and the counter affidavits of the respondents, the issue that arose for determination is between the primary election held on 9th to 11th January 2011 and the re-run primary election held on the 20th January 2011 which is valid and authentic primary election of the 1st respondent for the election of its candidates for 2011 general election into the respective national Assembly and State House of Assembly seats in Enugu North Senatorial District and therefore whether it is the plaintiffs elected by the 1st primary or the 3rd-7th respondents elected by the 2nd primary that should be presented by the 1st respondent to the 2nd respondent as its candidates at the said election? Counsel to both sides in their arguments during the hearing of the preliminary objection acknowledged this issue as the one arising for determination. Learned Senior Advocate for the appellants in his address during hearing of the preliminary objection, argued that the primaries held on 9th to 11th January 2011 before 15th January 2011, the dateline prescribed by the 2nd respondents timetable for holding of primaries is the legal one and that the one of 20th January 2011 held after the said dateline is illegal. The trial court understood the arguments of counsel to both sides as inviting him to declare one of the two primaries legal and the other illegal. This is clear from the portion of the Judgment of the trial court as follows: “This poser above by the plaintiffs also suggest to me that they are of the opinion that two primaries took place i.e. the one the 2nd defendant is said to issue time table for the 2011 general election which according to counsel is legal and the illegal one according to him which took place on 20th January 2011. This admission of the fact that there were 2 primaries was even made clearer in paragraphs 2.44 at page 4 of the plaintiffs written address in opposition.
It was argued;
“in the instant case, the PDP ignored the primaries that it conducted lawfully on a date within its time table for the conduct of primaries and forwarded to the INEC the name of persons who allegedly won the primaries on the 20th January 2012, a date falling outside the deadline –.”
From the above argument, there is no doubt that the main issue for determination in this suit is which of the two primaries between the one held on 9th January 2011 and 11th January, 2011 and the one held on 20th January 2011 is the valid primaries of the PDP.
In this respect I quite agree with the view of Offiah, SAN that this argument invariably will invite the court to determine the validity “of the two elections allegedly held or choose between the 2 lists of candidates to uphold one and make void the other as well as preferring one list of candidate to the other. This it has been submitted is the exclusive or sole domain of the political party.”
Following the arguments of both sides during the hearing of the preliminary objection, the question that arose for determination and which was resolved by the trial court was whether a dispute as to which of the two primaries of the political party produced the nominated candidates is justiceable and whether the Court has jurisdiction to entertain such a dispute. In Lados case, the issue that arose from the facts before the trial court, the Court of Appeal and Supreme Court was which as between two parallel primaries conducted by the CPC on 13-1-2011 and the one on 15-1-2011 is valid and authentic. The question that was resolved by the Supreme Court was whether a dispute as to which of the two parallel primaries of CPC produced the nominated candidates comes within the provisions of S.87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act 2010 and is justiceable and whether the Court has jurisdiction to entertain such a dispute? Clearly the question that was resolved in this case and in Lado’s case are identical.
The next test question is was the precedent case disposed of on the basis of the resolution of the above question and is the disposal of the pending case also dependent on the resolution of the said question? This point need not be laboured as it is obvious that in both cases the cases were struck out or dismissed as a direct result of the resolution of the above question.
The next question is whether the significant or material or relevant facts in the precedent case are also present in the pending case. The significant facts of the precedent case are briefly as follows:-
It is the case of the appellants that they are the validly nominated candidates of the 1st respondent to contest the general election of April 2011 into various elective positions in the National and State constituencies following a primary election conducted on 15th January, 2011 but that the 1st respondent refused to forward their names to the 5th respondent as its duly nominated candidates for the said election contrary to the provisions of the relevant statute etc. On the other hand, the 1st-3rd respondents contend that there was no primary election of the 1st respondent on 15th January, 2011 in which the appellants emerged as nominated candidates of the party; that it was 13th January 2011 that the primaries of the 1st respondent in Kastina State was conducted and the candidates for the various elective position nominated including the 3rd respondent; that the said primaries of 13th January, 2011 was contested by some of the Appellants who lost same and that the names of the duly elected candidates of the party to contest the said general election were duly forwarded to the 5th respondent on 31st January, 2011 by the 1st respondent in compliance with the law.
In this case the appellants claim that they secured the highest votes in the 9th to 11th January, 2011 primary elections of the 1st respondent to nominate candidates for the 2011 General elections into National Assembly and State House, House of Assembly seats in Enugu North Senatorial District and that the 1st respondent refused to submit their names to the 2nd respondents and rather submitted other persons names as its candidates for the said general election. According to the appellants it was for this reason that they brought the suit at the trial court claiming for declaratory and injunctive reliefs couched in terms clearly identical to the reliefs claimed in Lado’s case.
Following the commencement of the suit and service of the processes on the respondents, counter affidavit in opposition to the originating summons were filed by the respondents stating the following facts to the contrary. The electoral panel appointed by the National Executive committee of the respondent to conduct the primaries did not turn up at the designated venue for the primaries. The party delegates waited at the designated venue for the primaries in vain. Rather a large crowd was gathered at the country home of the then National chairman of the 1st respondent who was insisting that in accordance with the terms of an internal party crisis settlement deal some time back, the party must concede to him the exclusive right to single handedly select the persons to be the 1st respondents candidate in the coming general elections. According to the respondents he prevented the primaries from holding as scheduled and rather single handedly selected the appellants as the party’s candidate for the general election into the respective legislative seats in Enugu North senatorial District. The 1st respondent, therefore had to conduct a re-run primary election on 20th January 2011. The Appellant and 3rd – 7th respondents contested in the re-run election. Appellants lost. The respondents having scored the highest number of votes in this respective primaries were declared winners and the 1st respondent submitted their names to the 2nd respondent as its candidates for the said general elections. In Lado’s case as in this case the validity of each primary was challenged by either side. The only difference here is that in this case the second primary is conducted by the National Executive Committee of the 1st Respondent.
In Lados case, the validity of the primary election of 15-1-2012 which produced the appellants as candidates was challenged by the respondents on the ground that it was not conducted by the National Executive Committee of the CPC and was conducted by the Katsina State chapter of the party which had no power under the CPC constitution to conduct primaries. The Appellants in Lado’s case responded by alleging that the primaries of 13-1-2011 which produced the respondents was inclusive hence the re-run primaries by the State chapter of the party on 15-1.2011.
In the present case the appellants contend that the re-run primary election of 20-1-2011 is invalid on the grounds that it was not authorized by the 1st respondent and that it was held after the dateline prescribed by the 2nd respondent for holding of party primaries to nominate candidates for the 2011 general elections had expired. The respondents on the other hand contend that the primaries of 9th-11th January 2011 did not hold as it was aborted by the then National Chairman of 1st respondent, who single handedly selected the appellants as candidates of the 1st respondent for the election. It is obvious that the significant facts of Lado’s cases and the present case are the same. No additional fact appear in this case that can be treated as significant. Lado’s case is clearly directly in point or on all fours with this case. The trial court was therefore right to have relied on it in reaching the decision that the said dispute is non-justiceable and that it had no jurisdiction to entertain it. The Supreme Court in Lado’s case held per Onnogen JSC that “where however there is a dispute as in the instant case as to which of two primaries of a political party produced the nominated candidate, that dispute is not justiceable under the provisions of section 87(4)(b)11, (d)(ii) and 10 supra and the Courts will have no jurisdiction to entertain same.” The decision in Lado’s case being the decision the Supreme Court the trial Court and even this Court is bound by it. It is noteworthy that there is nothing in the record of this appeal to show that the decisions of the Supreme Court in Emenike, Eyiboh and Okadigbo were brought to the attention of the trial Court by any of the parties to this Court. The trial court had only Lado’s case before it and that was the decision it considered. It rightly relied on it as that case is beyond dispute in pari materia with the case before it. Learned Senior Advocate for the appellant relied heavily on the above mentioned Supreme Court decision in the cases of Okadigbo, Emenike and Eyiboh to urge upon this court to hold that the trial court wrongly relied on Lado’s case. It is noteworthy that he has not argued that in those decisions the Supreme Court departed from its decision in Lados case. His submission is that the Supreme Court in those cases decided the matter differently.
I will now consider those decisions to see how they stand against the decision in Lado’s. case. Did the Supreme Court in those cases depart from its decision in Lado’s case or did it just express a contrary position. I will start with the decision in Okadigbo’s case. The issue that arose for determination in that case was which between the primary election conducted by the National Executive committee of the PDP on 8-1-2011 and the primary election conducted by the State chapter of PDP on 10-1-2011 was the valid and authentic primary. It was contended for the first time at the Supreme Court that the dispute is not justiciable within the terms of S. 87(4)(c)(11)10 of the Electoral Act 2009 as amended and so the trial court lacked the jurisdiction to entertain it. Lado’s case was relied on for this objection. The Supreme Court overruled the objection holding that the Court had jurisdiction because only one of the primaries was valid, the other amounted to no primary in law as the State chapter of PDP had no power to conduct primaries. The Supreme Court did not depart from Lado’s case. It rather tried to distinguish Lado’s case from the one before it. It held that “in Lado’s case there were two parallel primaries conducted on 13-1-2011 and 15-1-2011. In this case there was only one primary conducted on 8/1/11. The purported primaries conducted on 10/1/11 was not a primary, it was illegal and thus carried no right whatsoever. Lado’s case had to do with the Constitution of the Congress for Progressive Changes. In this case it is the Constitution and Guidelines of the Peoples Democratic Party (PDP) the facts and circumstances of Lado’s case was clearly different from the facts of this case and so not applicable to this case.”
It is clear from the above quoted portion of the Supreme Court Judgment that it did not depart from its decision in Lado and did not state that a Court has jurisdiction to entertain a dispute as to which of two parallel primaries of a political party should be regarded as valid and authentic. It held that Lado’s case dealt with two parallel primaries, while the case before it dealt with one primary. The implication of this distinction is that, the Supreme Court did not decline jurisdiction because it held that it was dealing with only one primary election. It is implicit in this decision of the Supreme court in Okadigbo’s case that if it were of the opinion that it was dealing with two primaries, then it would have held Lado’s case applicable. This decision clearly supports its decision in Lado’s case that a dispute as to which of two parallel primaries of a political party produced candidate is not justiceable under the provisions of section 87(4)(b) (11), (c)(11) and 10 of the Electoral Act 2009 and the Courts will have no jurisdiction to entertain same. It is however noteworthy that in Lado’s case as in Okadigbo’s case it was contended that the second primary election of 15-1-2011 was not valid because it was conducted by the State chapter of CPC and not the National Executive Committee of the party as required by its constitution. It was also contended that the first primary election of 13-1-2011 was invalid as it was inconclusive. The dispute as to which of the two is valid is what the Supreme Court said is non justiciable and cannot be entertained by the Court. It is this decision that the Supreme Court in Okadigbo’s case supported on grounds that it dealt with two primaries and not one. I deliberately use the word “supported” here for two reasons. The first being that the Supreme Court recognized that in Lado the court was faced with two primaries whose validity were obviously in question. Secondly, it was urged upon the Supreme Court in Okadigbo’s case by Learned counsel for the 4th respondent therein, Dr. O. Olanipekun SAN that the court should either hold that Lado’s case is not applicable or depart from it as having been reached per in curium. The Supreme Court did not depart from it as urged upon it and rather held that it was not applicable to the case before it.
Let me now consider the case of Eyiboh vs. Abia. In this case the question that was resolved was which as between the primary elections of 7th and 9th January, 2011 and the one of 28th and 29th January produced the candidate of the Peoples Democratic Party for the 2011 general election for the Federal House of Representative seat for Eket/Ibeno/Esit/Onna Federal Constituency of Akwa Ibom State. There was no objection to the jurisdiction of the Court to entertain the question. The issue as to whether such a dispute is justiceable never arose in the case. So non of the courts from the trial court to the Supreme Court determined such a question or issue. It is therefore clear that Eyiboh’s case is not applicable here and the fact that the heard and determined the merit of the case is no authority for the submission that the trial court wrongly relied on Lado’s case that clear determined the above matters.
In Emenike vs. PDP, the appellant brought an action by way of originating summons contending that he was elected as the Abia State Governorship candidate of the Peoples Democratic Party for the 2011 general elections at a primary election conducted by the Abia State chapter of the Peoples Democratic Party on the 10th of January 2011 and that the Peoples Democratic Party and its National Chairman had no power to disqualify or reject his candidature and rather submit the name of the 4th respondent or any other person to the 3rd respondent.
The 4th respondent was duly elected at a primary election conducted by the National Executive Committee of the Peoples Democratic Party on the 6th December 2010 and his name submitted as the Peoples Democratic Party Governorship candidate for Abia State at the 2011 general elections. The appellant did not contest and so was not an aspirant in the primary election of 6th December 2010 conducted by the National Executive Committee of the said party.
The questions that the Supreme Court resolved in this case was whether the appellant, not having contested the 6th December 2010 primary election can challenge its validity and the nomination of the 4th respondent on the basis of his nomination in the 10th January 2011 primary conducted by the State executive committee of the State chapter of the party. I agree with the Learned Senior Advocate for the appellant that the trial court up to the Supreme Court did not decline jurisdiction to hear and determine the case. I must however point out that the Supreme court did not depart from its decision in Lado’s case and did not say anything contrary to its decision in Lado’s case. It did not decide the question that the Supreme Court resolved in Lado’s case.
In Emenike’s case, Learned Counsel for the 1st and 2nd respondents argued one of the two grounds of his preliminary objection that “since there were two primaries, a claim based on same cannot find support from section 87(9) of the Electoral Act 2010. He cited Lado’s case in support. On behalf of the appellant, Learned Senior Counsel contended that the appellant is not raising issue of double primaries and that Lado’s case is distinquishable.
The Supreme Court per Fabiyi JSC held that “there is no atom of doubt in my mind that a dispute has arisen between the appellant and the 4th respondent as to who is the candidate of the 1st respondent for the April 2011 general Election. The court should not decline jurisdiction brevi manu. To do so may engender the employment of force of arms by the contending parties. A trial court (and nay an appellate court) has a duty to suo motu deal with issue regarding whether or not it has jurisdiction to entertain a matter before it. See Alaeto v. Nwapi (2007) All FWLR (pt 375); Adesanya vs. President, F.R.N Thomas v. Olujosoye (1986)1 NWLR (pt.18) 669. (2012) 12 NWLR Emenike v. PDP (Fabiyi, J.S.C) In short, the court is imbued with due jurisdiction to pronounce on the dispute presented by the parties herein.”
His Lordship went further to state that “The core or central issue in this appeal relates to the due resolution of the serious hegemony between the appellant and the 4th respondent as to who is the right candidate of the 1st respondent for the governorship election of April, 2011 in Abia State of Nigeria.
Let me state right away that matters relating to nomination of the candidate of a political party are regarded as domestic affairs and are generally treated as not justiceable. This has been so for quite sometime now. See Onuoha vs. Okafor (1983) 2 SCNLR 244; Ehinlanwo vs. Oke (2008) 16 NWLR (pt. 1113) 357.
The courts have no power to compel a political party to sponsor a candidate outside the thin and limited power conferred under section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the court relates to whether complaints in respect of primary election for nomination of a candidate was conducted in line with the provisions of the Electoral Act, 2010 (as amended), the party constitution and the party guidelines.”
After reproducing S. 87(4) (b) and (9) of the electoral Act 2010, His Lordship again said “From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a court, the aspirant must show clearly and without any equivocation that the National Executive committee of the political party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specified provisions of the Electoral Act/Election Guidelines.”
The court finally held that since the appellant did not take part in the primaries of 6-12-2010 “he had no competent cause of action to activate the jurisdiction of the trial court.”
The court per Chukwuma Eneh JSC held that “The appellant in this matter, in summary, has invited this court to wade into a matter of the party primaries conducted by Abia State Executive Committee of the party (i.e. of the 1st respondent), which has on the one hand purportedly selected the appellant as the party candidate for the governorship position for Abia State for the April 2011 general election whereas on the other hand, the party primaries conducted by National Executive Committee of the 1st respondent has selected the 4th respondent for the position of the same Abia State gubernatorial election for April 2011.
There can be no doubt that where the instant action is predicated on a non-justiciable subject matter otherwise disclosing no reasonable cause of action, the court clearly has no jurisdiction to entertain the same and it is therefore liable to be dismissed in limine. See Okolo vs. Union Bank of Nigeria Ltd. (2004) 3 NWLR (pt. 859) 87, Ikweki vs. Ebele (2005) 11 NWLR (pt. 936)397; Abiola vs. Olawoye (2006) 13 NWLR (pt. 996) 1.”
Lado’s case therefore remains the clear authority on the point that such a dispute is not justiceable and is not within a court’s jurisdiction until the Supreme court departs from it or decides differently. It is settled by a long line of judicial decisions including ONUOHA VS. OKAFOR (1983) 2 SCNLR 244, (SC) DALHATU VS. TURAKI (2003) 15 NWLR (pt. 843) 310 (SC), EMENIKE VS. OKADIGBO & ORS (2012) LPELR 9338 (SC) and EMENIKE VS. PDP & ORS (supra) (SC) that the decision as to who should be nominated or sponsored to represent a political party as its candidate in a general election is the domestic affair of the political party and the Courts have no jurisdiction to decide for a political party who should be its candidate for election, that is an internal matter within the exclusive province of a political party.
The exercise of this power is now regulated in certain respects by the Electoral Act 2010 (as amended). S. 87 of this Act now gives an aspirant in any primary election of his party who feels the party did not comply with the Electoral Act and the guideline of the political party the right to seek redress in the Federal High or High Court of a State or FCT. S. 87 has not taken away or reduced the exclusive power of the party to nominate or sponsor persons as its candidates for elections. It merely regulates the process and procedure of nominating such persons. It places a responsibility on the party to avoid arbitrariness and follow the procedure prescribed therein. This is to ensure that the decision to nominate a person as the party’s candidate is the democratic decision of the party and not the dictation of a minority. The jurisdiction of the Court here is very narrow and strictly limited only to the extent prescribed in S. 87(9) of the Electoral Act. The Court has no jurisdiction to deal with any question or complain that does not fall within this narrow compass. So the only question or complain the Court can entertain is that the provisions of the Electoral Act and the guidelines of the party has not been complied with in the selection or nomination of a candidate. For ease of reference the exact provisions of S. 87 (9) of the Electoral Act are reproduced here as follows:- “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
The question is can S.87(9) accommodate a complain that the party held more than one primaries or that one primary is valid and the other or others are not valid or a complain that the candidate produced by one primary should be preferred to the candidate produced by another primary? The Supreme Court in Lado’s case held that this kind of dispute does not come within the very narrow jurisdiction of the Court under S. 87 of the Electoral Act. The jurisdiction of the Court is to look at the primary election that nominated the candidate to find out if that primary complied with the Electoral Act and the party guidelines and nothing more. The validity or otherwise of any other primary cannot come within this inquiry. See the above stated statement of Chukwuma Eneh JSC in Emenike vs. PDP (supra). Learned Senior Advocate for the appellant argued that the trial Court ought to have first considered the validity of the two primaries and that if the trial Court had done so, it would have realized that the second primary election of 20-1-2011 was illegal and invalid because it was not authorized by the National Executive Committee of the 1st respondent and it was held after the 2nd respondent’s prescribed dateline for holding party primaries. In that event, the only valid primary election, that of 9th to 11th January 2011 would have been left. He relied on Okadigbo’s case for this approach particularly the statement of Rhodes-Vivour JSC as follows- To my mind what is to be resolved in this issue of jurisdiction is whether there were two parallel primaries or one valid primary.” The Court then went ahead to consider the validity of the primaries and held that the later one was invalid because it was conducted by the state chapter of PDP. Learned Senior Advocate has vigorously argued that this is the approach the trial court should have adopted in determining the question of jurisdiction. The question here is did the Supreme Court in Okadigbo’s case lay down any law on the approach a court should adopt in determining objections to the jurisdiction of a Court to entertain disputes at to which of two or more primaries of a political party is valid or authentic. A careful reading of that case show clearly that the Court did not. It merely adopted its own approach without holding that it is the approach to be adopted in all cases. It must be remembered that under the doctrine of stare decisions a case is precedent only for what it decides and not for how and why it decides.
Learned Senior Advocate made copious references to the appellants’ affidavit and further affidavit in support of the originating summons particularly exhibits PCAI and PCA2 attached to their counter-affidavit to the motion on notice raising the preliminary objection to show:
(i) that the re-run primary was not authorized by the National Executive Committee in that it was not listed in exhibit PCA1 as one of the places where re-run primaries were to hold.
(ii) That the re-run was held after the 15th January 2011 dateline prescribed by 2nd respondent for holding of party primaries.
Learned Senior Advocate for the 1st respondents also copiously referred to evidence in the counter-affidavit of the respondents and the affidavit of the appellant including exhibits PCA1 and PCA2 to show that the primaries election did not hold on 9th to 11th January 2011. She pointed out that while appellants stated that the said primary was held on 8th, 9th and 10th January 2011, appellants exhibit C state that it held on 11 and 12th January 2011. She also pointed out that appellants’ exhibit A, a letter appointing one Alhaji Bello as member of the Electoral panel was dated 10th January 2011 and appellant’ exhibit C, a letter informing the 2nd respondent that the primary will hold on 11th and 12th January is dated 10th January. She concluded that what all these show is that if the primaries did hold on 8, 9th and 10th as appellants allege or on 9th, 10th and 11th as their exhibit B state, then it means that the primaries started holding before the appointment of the electoral panel and before the 2nd respondent was informed that it will hold. She referred to the absence of a report of the 2nd respondent certifying that such a primary held she argued that these contradictions and shortcomings which are contained in the appellants affidavits show that the primary election never held, and that the appellants were hand picked by the then National Chairman of the party in the comfort of his residence.
She further stated that in contradistinction from the case presented by appellants, who merely exhibited an Electoral Panel report stating the persons who have emerged as candidates in Anambra State including Enugu North as proof of their case, the respondents in their counter-affidavit exhibited the full list of the party delegates who actually voted in the primary election of 20th January, the actual results showing the various contestants and their respective scores (respondents exhibits D1, D2, D3, D4 and D5), the list of nominated candidates (exhibit D18) and 2nd respondents report confirming the holding of the re-run election of 20-1-2011 and the results.
The above dispute by both sides concerning which primary is valid is what the Supreme Court in Lado’s case said is non justiciable and cannot be entertained by a court within the terms of S. 87(9) of the Electoral Act. It is this non-existent jurisdiction that both sides have turned around now in this appeal to invoke to decide which primary is valid. A decision invalidating one primary and validating another decides the merit of the case and not the jurisdictional point. It defeat the objection that the issue is non justiciable and that the Court lack s jurisdiction to decide it.
Learned Senior Advocate for the appellants argued that the trial Court did not consider the originating summons, the appellants counter affidavit and further affidavit in support of the summons and exhibits PCA1 and PCA2 of appellants counter-affidavit in opposition to the preliminary objection in deciding the preliminary objection. He argued further that it is the appellants originating summons and supporting affidavit that the trial Court should have exclusively relied on and nothing more to determine the objection. He concluded that the failure of the trial court to consider the originating summons and the appellants supporting affidavits and the said exhibits PCA1 and PCA2 has occasioned a miscarriage of justice in that if the trial court had done so, it would have come to the conclusion that the re-run primary was invalid and that only the primary of 9th to 11th January was valid.
Counsel to the respondents argued that the trial court considered all the above-mentioned processes and all materials before it in deciding the objection. It is obvious from the judgment of the trial court that it did not refer to specific portions or parts of the originating summons and appellant’s affidavits in support thereto and the counter affidavits of the respondents opposing the motion. The Court however stated that: ” Paragraphs 8 – 13 of the affidavit in support of the preliminary objection summarises briefly the entire facts of the case before this Honourable court. As graciously summarized the affidavit of all the parties is for the court to choose between two list of candidates who all claim to have been nominated at different primary elections of the Peoples Democratic Party (PDP) by upholding one list of the candidates and declaring the other void and or preferring the one list of candidate to the other.” This part of the judgment give the impression that the trial court had considered the entire facts of the case which of course includes the above mentioned processes. I agree that the trial court should have made specific reference to the originating summons, the appellants affidavits and the respondents counter-affidavits to show the nature of the dispute and how it arose. I think that the trial court was minded not to do so because all parties were ad idem on the nature of the dispute and how it arose, as is obvious from the affidavit in support of the motion raising the preliminary objection the appellants counter-affidavit and the addresses of the parties. The trial Court was therefore able to determine the objection to jurisdiction without specific reference to the originating processes and the affidavits connected therewith. Both sides have stated the law on how an objection to jurisdiction is to be raised and what materials to consider in dealing with such objection.
Learned Senior Advocate for the appellant has argued that in deciding such objection the Court can only do so on the basis of the originating processes (writ of summons and statement of claim or as in this case originating summons and supporting affidavit) and nothing more. I agree with Learned Senior Advocate for the 1st respondent that this is the general principle and that in some situations the court can rely on other parts of its record to decide an issue of jurisdiction. I think there is need to clearly restate the law on this point. The general rule is that the issue of jurisdiction can be raised at any stage of a case and in any manner. This general principle, unless where it is modified by an enactment in specific instances, allows a wide latitude on the procedure of raising objection to jurisdiction with particular reference to substantive jurisdiction like jurisdiction over parties and subject matter. Therefore such an objection cannot be faulted on the ground that it was not raised at a particular stage of the case and in a particular manner.
The implication of the position is that the general principle that an issue of jurisdiction has to be decided on the basis of the originating processes and nothing more is, as Learned Senior Advocate for the 1st respondent has submitted, not immutable and absolute. The important consideration is whether there is a feature in the case showing that the Court lacks the jurisdiction to entertain and determine the matter. In some situations this feature may not be obvious from the terms of the originating process because the claims and the facts grounding the claim as couched do not exhibit any feature that robs the court of jurisdiction. At a subsequent stage in the case such a feature would become disclosed by either the statement of defence or counter-affidavit, affidavit in support of the originating summons or during viva voce evidence or during final addresses. In some situations the feature may have existed right from the beginning but nobody drew attention to it until at a later stage of the case, sometime at the appeal stage. In all these situations, where other materials have been placed before the court disclosing such a feature, it would not be right to argue that the court cannot rely on those materials. The absurdity in this kind of argument is that so far as the originating process does not exhibit a feature that robs the Court of jurisdiction the Court can validly exercise jurisdiction, even if such feature later emerge. The correct position is that such an objection can be raised at any time on the basis of any material in any process before the Court that shows that there is a feature that robs the court of its jurisdiction to entertain a determine the case. I adopt the holding of this court in SAMBO & ORS VS. ALIERO & ORS (2010) All FWLR (pt 541)1569 at 1596 cited by Learned Senior Advocate for the respondent. See also LADO & ORS VS. CPC & ORS (2011) LPELR 82554, held 4 per Onnogen JSC and the Supreme Court decision in WOHEREM VS. EMERUWA (2004) All FWLR (pt. 221) 1570 at 1584.
In our present case the particular feature relied on for the objection was disclosed by the counter-affidavits of the respondents. The appellants realized this and brought a motion on notice seeking the leave of the trial court to amend the originating summons to reflect questions on the validity of the re-run and to ask for reliefs concerning the re-run. The motion for amendment was pending and about being moved, when the objection to jurisdiction was taken. The trial courts reliance on the affidavit in support of the motion raising the objection to jurisdiction is not only supported by legal principle, it is also supported by Order 29 Rule 4 Federal High Court (Civil Procedure) Rules under which it was brought. It is prescribed therein that the objection shall be by an application by way of motion on notice supported by an affidavit if it is not based on ground of law alone.It is trite that an affidavit in support of a motion contains facts supporting the prayers sought on the motion paper and the grounds for such prayers.It is obvious that by requiring that the application be supported by an affidavit it is the intendment of that provision that the affidavit shall be relied on for the objection though not exclusively. The Court can also look at other parts of its records in addition to the affidavit if need be.
I therefore resolve issues Nos 3 and 4 in favour of the respondents. As it is, the reliefs sought for by the appellants cannot be granted.
This court cannot invoke its power under S. 15 of the Court of Appeal Act to exercise a jurisdiction that neither the trial court from which the appeal arose or any other court has. The jurisdiction that can be exercised by virtue of S. 15 of the Court of Appeal Act is a competent jurisdiction validly vested by law. This position was clearly restated in EZAIGWE VS. NWAWULU & ORS (2010) All FWLR (pt 518) 749 that one of the requirements for the valid exercise by this court of the power vested on it by S. 15 of the Court of Appeal Act is that the lower or trial court must have the legal power to adjudicate in the matter. This decision was cited by the Learned Senior Advocate for the 1st respondent. I will not consider the extensive arguments of Learned Senior Advocate for the appellants, the Learned Senior Advocate for the 1st respondent and other counsel for the respondents on the scope of this courts power under S. 15 Court of Appeal Act as my above holding renders them redundant. The request of the appellants for this court to hear and determine the merit of their suit in exercise of its powers under S. 15 of the court of Appeal Act is refused.
On the whole, the appeal fails and is hereby dismissed. The appellants shall pay to the respondents costs in the sum of N30,000.00.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read in advance the lead judgment delivered by my learned brother Agim, JCA. His Lordship has dealt in detail with all the issues raised for determination in the appeal. I am in agreement that the appeal completely lacks merit and ought to be dismissed. I also dismissed the appeal and abide by the order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading in its draft form, the judgment of my learned brother, EMMANUEL AKOMAYE AGIM JCA just delivered. I agree with the reasoning therein and adopt same as mine. I therefore agree that the appeal is devoid of merit and it is dismissed by me with costs of N30,000.00 as awarded by learned brother.
Appearances
Awa U. Kalu Esq, SAN with Chief Ben C. Ezugwu,. C.I. Obidike Esq. and U.F. Ukwueze Esq.For Appellant
AND
Chief (Mrs) A.J. Offiah, SAN with C. Nwaubani (Mrs) and Uche Onyekachi Esq; for the 1st Respondent
Emmanuel E. Ogbodo Esq. for the 2nd Respondent
Tochukwu Maduka Esq; with Aisha Nasiru (Mrs) and Uche Agunwa for the 3rd to the 7th RespondentsFor Respondent
