CHIEF IKECHI EMENIKE v. PEOPLES DEMOCRATIC PARTY & ORS. (2011)

CHIEF IKECHI EMENIKE v. PEOPLES DEMOCRATIC PARTY & ORS.

(2011)LCN/4916(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 2nd day of November, 2011

CA/A/145/2011

RATIO

REPLY BRIEF: CIRCUMSTANCE WHERE A REPLY BRIEF IS NOT NECESSARY

…it is my view that paragraphs 3.01 to 3.35 of the Appellant’s reply brief did not contain anything new. It is therefore not necessary because it is a repetition of which had been argued in the Appellant’s brief. PER JIMI OLUKAYODE BADA, J.C.A.

NOMINATION OF CANDIDATES: WHETHER A COURT CAN NOMINATE A CANDIDATE FOR A POLITICAL PARTY OR COMPEL A POLITICAL PARTY TO NOMINATE OR SPONSOR A CANDIDATE FOR AN ELECTION

All I have said above boiled down to the fact that in the determination of who the candidate of a political party should be, it is the preserve of the political party through their various party primaries based on the Guidelines and Constitution of the party. It is a domestic issue of the party, therefore a Court has no Jurisdiction to nominate a candidate for a political party or compel a political party to nominate or sponsor a candidate except as provided in Section 87 of the Electoral Act 2010 (as amended) See the following cases:–Ehuwa v. O.S.L.E.C. (2006) 18 NWLR Part 1012 page 544; – Onuoha v. Okafor (1983) 2 SCNLR page 244; – Dalhatu v. Turaki (2003) 15 NWLR Part 843 page 310; – Davies v. Mendes (2007) All FWLR Part 348 page 883. The above view is also supported by the recent decision of the Supreme Court in the case of H. Uzodinma v. Senator O. B. Izunaso Appeal No. SC.117/2011 delivered on 20/5/2011 where it was held among others by Rhodes-Vivour JSC that:- “In an action to determine who a party nominated as its candidate, the impute of the party is of paramount importance.” PER JIMI OLUKAYODE BADA, J.C.A.

JUDGMENT: EFFECT OF THE JUDGMENT OF A COURT WITH COMPETENT JURISDICTION

It is settled law that Judgment of competent Jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a Court of competent Jurisdiction. See the following cases:- – Babatunde v. Olatunji (2000) 2 NWLR Part 646 page 557 at 568; – Ezeokafor v. Ezeilo (1999) 9 NWLR Part 619 page 513 at 530. PER JIMI OLUKAYODE BADA, J.C.A.

DOCUMENTARY EVIDENCE: WHETHER A PARTY CAN DISASSOCIATE HIMSELF FROM A DOCUMENT TENDERED AND ADMITTED AS AN EXHIBIT IN A COURT OF LAW

It is settled law that where a party has tendered a document in a Court of law and it is admitted as an exhibit, he is bound by the document and cannot disassociate himself from it. See the following cases:- – Onwudinjo vs. Dimobi (2006) 1 NWLR Part 916 page 318 at 338; – Ajide v. Kelani (1985) 3 NWLR Part 12 page 248; – Oje v. Babalola (1991) 4 NWLR Part 185 page 277. PER JIMI OLUKAYODE BADA, J.C.A.

Before Their Lordships

ZAINAB ADAMU BULKACHUWAJustice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria

Between

CHIEF IKECHI EMENIKEAppellant(s)

AND

1. PEOPLES DEMOCRATIC PARTY
2. DR. BELLO HALIRU MOHAMMED
(Acting National Chairman, Peoples Democratic Party)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. GOVERNOR THEODORE ORJIRespondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja delivered on the 28th day of February 2011.
Briefly the facts of the case are that the Appellant who was the Plaintiff of the trial Court instituted the suit which led to this appeal by way of originating summons where he sought for determination of five questions and also prayed for 11 reliefs.
The said questions for determination and the reliefs sought are hereby set out as follows:-
QUESTIONS FOR DETERMINATION
(1) Whether having regard to section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria 1999 and sections 85 and 86 of the Electoral Act 2010 (as amended) it is unlawful for the 1st Defendant to refuse to submit to the 3rd Defendant, the name of the plaintiff who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held by the Abia State Congress of Peoples Democratic Party on 10th January 2011, to elect the Abia State Gubernatorial candidate of the party for the 2011 general election, which primary was conducted by the State Executive Committee of the party recognized by the INEC and confirmed upon prior enquiry from its official records.
(2) Whether having regard to the combined effect of sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria 1999 and section 87(1), (4) and (6) of the Electoral Act 2010, which, among other things guarantees, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis, and which enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of candidate who emerged winner at State Congress of the party, the 1st and 2nd Defendants have the power to disqualify or reject Plaintiff candidature which was the choice of the delegates of the State Congress and adopt instead by arbitrary fiat, the 4th Defendant as the candidate of the 1st Defendant for the Office of Governor of Abia State in the 2011 General Election.
(3) Whether having regard to section 87(6) of the Electoral Act 2010 (as amended) the 1st Defendant is not bound to submit to the 3rd Defendant the name of 1st Plaintiff as the 1st Defendant’s Gubernatorial Candidate for Abia State in the 2011 general election, being the only aspirant of the 1st Defendant who presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of the 1st Defendant held on 10th January 2011.
(4) Whether in view of the sections 33 and 87(6) of the Electoral Act 2010 (as amended) and having acquired vested interest in the party ticket as the duly elected Gubernatorial Candidate of 1st Defendant in the primary election of the 1st Defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the plaintiff candidature can be rejected, disregarded, revoked, reversed, annulled, re-assigned to, or be substituted with 4th Defendant or any other person when the plaintiff being still alive, has not withdrawn his candidature to contest on the platform of the 1st Defendant at the General election.
(5) If question 4 is answered in the negative, whether and having regard to section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiff, in the eye of the law is the candidate of the 1st Defendant, entitled to all the benefits of his candidature as flag bearer of the 1st Defendant, eligible to contest and be voted for on the platform of the 1st Defendant in respect of the Office of Governor of Abia State at the 2011 general election, in the event that 1st, 2nd and 3rd Defendants conspire, fail, refuse or neglect to take all necessary steps required under the Electoral Act 2010 (as amended) to ensure that plaintiff’s name is duly submitted, published before the date of the election and placed on the ballot for use in the conduct of the Abia State Gubernatorial Election in 2011.
RELIEFS CLAIMED
(1) “A DECLARATION that by virtue of sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act 2010 (as amended) the 1st Defendant is bound to submit to 3rd Defendant the name of plaintiff who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election or congress of the Abia State Chapter of the Peoples Democratic Party (PDP) held on 10th January, 2011, to elect the Abia State Gubernatorial candidate of the party in the 2011 general election, which primary was conducted by the State Executive Committee of the party recognized by the INEC and confirmed upon prior enquiry from its official records.
(2) A DECLARATION that the combined effect of section 221, 222, 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87(1)(4) and (6) of the Electoral Act, 2010 which, among other things guarantee, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis, and enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of candidate who emerged winner at State Congress of the Party, the 1st and 2nd Defendants have NO power to disqualify or reject plaintiff being the choice of the delegates at the Abia State Congress.
(3) A DECLARATION that the 1st and 2nd Defendants cannot by arbitrary fiat or through any illegal method adopt the 4th Defendant or any other person other than the plaintiff as the candidate of the 1st Defendant for the Gubernatorial Elections in Abia State in the 2011 General Elections.
(4) A DECLARATION that by virtue Section 87 (6) of the Electoral Act, 2010 (as amended) the 1st Defendant is duty bound to submit to the 3rd Defendant the name of Plaintiff as the 1st Defendant’s Gubernatorial candidate for Abia State in the 2011 general election, being the only aspirant of the 1st Defendant who presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of 1st Defendant held on 10th January, 2011 organized by the Abia State Executive Committee of the 1st Defendant.
(5) A DECLARATION that in view of Sections 33 and 87 (6) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial candidate of 1st Defendant in the primary election of the 1st Defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the plaintiff’s candidature CANNOT be rejected, disregarded, revoked, reserved, annulled, re-assigned to, or be substituted with 4th Defendant or any other person, when plaintiff is still alive, and has not withdrawn his candidature to contest on the platform of the 1st Defendant in the general election.
(6) A DECLARATION that by virtue of section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff, in the eye of the law, is the candidate of the 1st Defendant entitled to all the benefits of his candidature as flag bearer of the 1st Defendant, eligible to contest and be voted for on the platform of the 1st Defendant in respect of the Office of Governor of Abia State at the 2011 general election.
(7) A DECLARATION that any acts, omission, commission, failure, refusal or neglect, by 1st, 2nd and 3rd Defendants to take all necessary steps required under the Electoral Act 2010 (as amended) to ensure that plaintiff’s name is duly submitted and published before the date of the election and placed on the ballot for use in the conduct of the Abia State Gubernatorial election in the 2011 general election is illegal and unconstitutional.
(8) An order of Perpetual Injunction restraining the 1st and 2nd Defendants, their servant, agents and or privies from recognizing, or submitting to 3rd Defendant the name of any other person other than that of plaintiff and his nominated running mate in person of DR. CHUKWUEMEKA C. OKWUONU as candidate of 1st Defendant for the Office of Governor and Deputy Governor of Abia State respectively at the 2011 general election.
(9) An Order of Prohibitory Injunction restraining the 3rd Defendant, its agents, servants, or privies from accepting and giving recognition to any other candidates of the 1st Defendant at the 2011 general election into the office of the Governor of Abia State.
(10) AN ORDER OF MANDATORY INJUNCTION compelling the 3rd Defendant to provide for and place on the ballot paper to be used for the Gubernatorial Election in Abia State at the 2011 general election, the name of plaintiff and that of his nominated running mate DR. CHUKWUEMEKA C. OKWUONU as the Gubernatorial and Deputy Gubernatorial candidates of 1st Defendant; in the event that 1st Defendant fail or neglect to so submit the aforesaid names as it candidates for the offices.
(11) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit and just to make in the circumstances of this case.”
At the conclusion of hearing, the learned trial Judge in a considered Judgment dismissed the Plaintiff/Appellant’s Claim in its entirety.
Dissatisfied with the Judgment of the trial Court, the Appellant now appealed to this Court.
The learned Senior Counsel for the Appellant has distilled six issues for determination of this appeal from the fifteen (15) grounds of appeal filed.
The issues for determination are hereby set out as follows:-
ISSUE 1
Whether the trial judge correctly construed and evaluated the undisputed documentary evidence placed before him, in finding that the 4th Defendant was the duly nominated gubernatorial candidate of the 1st Defendant in Abia State. (Grounds 6, 9 and 15).
ISSUE 2
Whether the learned trial Judge correctly construed the legal effect of Exhibit PDP6 or Exhibit 7 (PDP Electoral Guideline) vis-a-vis the PDP Constitution, the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999, in not upholding the nomination of the Appellant as the governorship candidate of the 1st Defendant in Abia State (Grounds 1, 2, 3 and 4).
ISSUE 3
Whether the learned trial judge was right in failing to apply the doctrine of lis pendens and section 91 (3) of the Evidence Act to reject the defence set up against the plaintiff’s case. (Grounds 7 and 10) Ogele v. Dare (2009) 12 WRN page 149.
ISSUE 4
Whether the learned trial Judge was right in holding that the plaintiff was bound by Exhibit PDP 12 and GGB under the principles of res judicata and judgment in rem, having regard to the issues raised by the plaintiff’s claim before the trial court (Ground 11)
ISSUE 5
Whether the invocation by the trial Court of the purposive rule or mischief rule of interpretation (section 33 of the Evidence Act) and the case of Onuoha vs. Okafor instead of section 87 of the Electoral Act and the case of Shulawa v. Shown in resolving the question of who was the duly nominated governorship candidate of the 1st Defendant in Abia State, did not occasion a miscarriage of justice (Grounds 5, 8 and 14).
ISSUE 6
Whether the learned trial judge did not occasion a miscarriage of justice in failing to pronounce on the plaintiff’s objection to the competence of the further counter affidavit and further, further counter affidavit and Exhibits GG8 and PDP12 attached thereto, filed by the 1st, 2nd and 4th Defendants without leave of Court, which was relied upon to arrive of the decision (Grounds 12 and 13).
The learned Counsel for the 1st and 2nd Respondents formulated a sole issue for determination. The said issue is set out as follows:-
“Whether having regard to the Appellant’s claim, the affidavits, exhibits and written addresses of parties as well as the applicable law, the trial court was not right in dismissing appellant’s claim and upholding the nomination of the 4th Respondent as candidate of the 1st Respondent for the 2011 Governorship Election in Abia State.”
The learned Counsel for the 3rd Respondent also formulated a sole issue for determination of the appeal and it is a follows:-
“Whether in the submission of a candidate’s name by a Political Party to the 3rd Respondent in this case, the 3rd Respondent should deal with the National Executive of the Party or the State Executive.”
(1) “Whether the trial Court was not right when it held that the Appellant failed to establish that he and not the 4th Respondent was duly elected candidate of the 1st Respondent who should be recognized and accepted by the 3rd Respondent for the purposes of the Abia State Governorship Election of April 2011 (Grounds 1 – 11 and 14).
(2) Whether the further, further counter affidavit of the 1st and 2nd Defendants and the further counter affidavit of the 4th Respondent are incompetent (Grounds 12 and 13).”
NOTICE OF PRELIMINARY OBJECTION
The learned Counsel for the 1st & 2nd Respondents referred to the notice of preliminary objection filed in this Court on 11/08/2011.
He contended that paragraphs 3.01 to 3.35 of the Appellant’s reply brief of argument are incompetent on the ground that it offends the Provision of Order 18 rule 5 of the Court of Appeal Rules 2011.
He relied on the following cases:-
-Obed Okpala and Another Richard Ibeme & 9 others (1989) 2 NWLR (Part 102) page 208 at 220 paragraph C;
-Nwali vs. State (1991) 3 NWLR part 182 page 663 of 671 paragraph A;
– Olatosoye v. FRN (2004) 4 NWLR Part 864 at 644 paragraph D – F.
The learned Senior Counsel for the Appellant in his response also relied on the cases cited above which was also relied upon by the counsel for the 1st and 2nd Respondents.
He submitted that the preliminary objection was not well founded and it should be dismissed.
Order 18 rule 5 of the Court of Appeal Rules 2011 provides that:-
”The Appellants may also if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
A careful perusal of paragraphs 3.01 to 3.35 of the Appellants reply brief of argument to the 1st & 2nd Respondents’ brief would reveal that the Appellant merely re-argued the issues already raised and argued in the Appellant’s brief of argument.
It is my view that a reply brief of argument will only be necessary when an issue of law or argument raised in the Respondent’s brief calls for a reply.
In this appeal under consideration the Appellant formulated six inter-related issues for determination to which the 1st and 2nd Respondents responded to in the 1st and 2nd Respondents’ brief of argument.
See:-
– Obed Okpala & Others v. Richard Ibeme (supra)
– Nwodi vs. The State (Supra)
Consequent upon the foregoing it is my view that paragraphs 3.01 to 3.35 of the Appellant’s reply brief did not contain anything new. It is therefore not necessary because it is a repetition of which had been argued in the Appellant’s brief.
Therefore the preliminary objection succeeds and paragraphs 3.01 and 3.35 of the Appellant’s reply brief of argument are hereby struck out.
MAIN APPEAL
At the hearing the learned Senior Counsel for the Appellant referred to the following:-
(i) The Appellant’s brief of argument deemed filed on 13/6/2011.
(ii) The Appellant’s reply brief of argument in response to 1st and 2nd Respondents’ brief.
(iii) The Appellant’s reply brief to the 3rd Respondent’s brief of argument filed on 7/6/2011.
(iv) The Appellant’s reply brief in response to 4th Respondent’s brief filed on 26/7/2011.
The learned Senior Counsel for the Appellant applied to adopt Appellant’s brief of argument and all the reply briefs referred to above as his argument in this appeal.
He contended that the central question in this appeal is that who was the duly nominated candidate of the 1st Respondent for the April 2011 election. The learned Senior Counsel for the Appellant referred to the reliefs sought of the lower Court and he submitted that the party guideline is inferior to the Constitution of the party.
He finally urged that the appeal be allowed
On his own part the learned Counsel for the 1st and 2nd Respondents referred to the 1st and 2nd Respondents’ brief of argument deemed filed on 13/6/2011. He applied to adopt the said brief as his argument in this appeal.
He also referred to section 87(9) of the Electoral Act 2010 (as amended) and he submitted that the lower Court was right in the way it construed the party guidelines.
He contended that there is nothing in the Party’s Guideline which is in conflict with the Constitution of the Party. He went further that the Party Guidelines complimented the Party’s Constitution.
He finally urged that the appeal be dismissed.
The learned Counsel for the 3rd Respondent referred to the 3rd Respondent’s brief of argument filed on 8/6/2011.
He applied to adopt the said brief as his argument in this appeal and urged that the appeal be dismissed.
The learned Senior Counsel for the 4th Respondent referred to the 4th Respondent’s brief of argument filed on 11/7/2011.
He applied to adopt the said brief as his argument in urging this Court to dismiss the appeal.
In his reply on point of law the learned Senior Counsel for the Appellant relied on the following Articles:-
Article 12.37d
Article 12-41c
Article 12-42 of the Constitution of the PDP. He also referred to section 85 of the Electoral Act 2010 (as amended) and relied
– Adenuga vs. Odumero (2003) 4 S.C. Page 1 at 13 in urging this court to uphold the appeal.
I have carefully examined the issues formulated for determination by counsel for the parties in this appeal. The learned Senior Counsel for the Appellant in his submission before this Court contended that the central question in this appeal is that who was the duly nominated candidate of the 1st Respondent for the April 2011 Gubernatorial Election.
It is my view that the lone issue formulated by Counsel for the 1st & 2nd Respondents encapsulate the issues formulated by Counsel for the Appellant. I will therefore rely on the said lone issue in the determination of this appeal.
ISSUE FOR DETERMINATION
“Whether having regard to the Appellant’s claim, the affidavits, exhibits and written addresses of the parties as well as the applicable law, the trial court was not right in dismissing appellant’s claim and upholding the nomination of the 4th Respondent as candidate of the 1st Respondent for the 2011 Governorship Election in Abia State.”
The learned Senior Counsel for the Appellant submitted that the learned trial Judge misapplied the undisputed facts of this case and come to wrong findings. The facts were highlighted as follows:-
(i) Evidence that the Plaintiff was re-admitted into the 1st Defendant’s party on 10th of April 2009 as shown in paragraph 6(iiii) of the counter affidavit of Egwuatu Egbulefu (page 10506 of the records).
(ii) The National Working Committee of the 1st Defendant through a letter dated 2nd day of August 2010 i.e. Exhibit LL page 770 of the record dissolved the Abia State Executive of the 1st Defendant.
(iii) Some members of the Abia State Executive did not accept the dissolution of the said Executive by the National Working Committee of the Party hence the suit in Exhibit 6 attached to the originating summons, through which members of the Abia State Executive Committee challenged the action of the National Working Committee on the 27/09/2010 at the Federal High Court, Abuja.
(iv) The plaintiff purchased his expression of interest and nomination forms on 17/09/2010.
(v) In the midst of the confusion created by the dissolution of the Abia State Executive Committee, the Plaintiff inquired from the 3rd Defendant, the authentic Abia State Executive of the 1st Defendant.
(vi) In reply to the said inquiry, the 3rd Defendant through its records issued lo the Plaintiff Exhibit 5/5A.
It was submitted on behalf of the Appellant that the trial Judge erred and occasioned a miscarriage of Justice in holding that the 4th Defendant was the duly nominated Governorship candidate of the 1st Defendant. It was stated further that Articles 12.37 (d), 12.41 (c) and 12-42 of the 1st Defendant Constitution placed the responsibility of convening State Congress and conducting primary election to elect Governorship candidate on the State Executive Committee of the party.
The learned Senior Counsel for the Appellant relied on the following cases:-
– Dr Abu Adama vs. Ibrahim Anaja (2003) FWLR Part 189 Page 74 at 86 Paragraphs G – H;
– M. C. Agbamu v. D. K. Ofili (2004) FWLR Part 197 page 1075 paragraphs D – E.
The learned Counsel for the 1st & 2nd Respondents contended that what the Appellant regarded as statements of facts do not represent statement of facts.
The Appellant contended that under the Constitution and the Electoral Guidelines of the 1st Respondent, it is the responsibility of the State Executive Committee to screen governorship aspirants and conduct primary election for the purpose of nominating one of such aspirants as candidate, whereas the learned Counsel for the 1st and 2nd Respondents argued that it is the Gubernatorial Screening Committee and the State Gubernatorial Electoral Panel appointed by the National Executive Committee that are respectively saddled with the responsibility to screen and clear aspirants and conduct primary election.
The learned Counsel for the 1st and 2nd Respondents relied on the following:-
– Article 12.72 of Exhibit PDP 5:
– Article 17(2) of Exhibit PDP 5
– Section 87 (9) of the Electoral Act 2010 (as amended)
– Exhibit PDP 6.
The learned Counsel for the 3rd Respondent in his own case stated that the 3rd Respondent is a statutory body established pursuant to Section 153(f) of the Constitution with composition and powers under Section 14 of the third schedule. He went further that the 3rd Respondent also derives its functions pursuant to the provisions of the Electoral Act 2010 (as amended).
He contended that in the determination of who the candidate of a political party should be, it is the preserve of the political party through their various party primaries exclusively outside the competence of INEC. He went further that the name of the candidate that emerged as the winner of the party primaries is then forwarded to INEC in accordance with the relevant provisions of the Electoral Act.
He went further in his argument that by virtue of Section 15 to the 3rd Schedule of the Constitution of the Federal Republic of Nigeria 1999, the 3rd Respondent is cooked with statutory powers to monitor the party primaries of any political party. In furtherance to the above contention, he stated that it is a statutory requirement for any political party conducting her party primaries to duly notify the 3rd Respondent in compliance with Section 85(1) of the Electoral Act 2010 (as amended).
It was also stated on behalf of the 3rd Respondent that by a letter of 17/12/2010 marked as Exhibit AA2, the 1st Respondent through its National Secretariat issued a Notice/Invitation to the 3rd Respondent of its imminent National Convention cum primaries in compliance with the relevant provisions of the Electoral Act. The 3rd Respondent in the discharge of its statutory duties sent observers to the Umahia Township Stadium to monitor the said Congress wherein the 4th Respondent emerged as the Candidate.
In further compliance with the provisions of the Electoral Act in particular Section 31 (1), the 1st Respondent by a notice of 24/1/2011 marked as Exhibit AA3 forwarded to the 3rd Respondent a list of candidates for 2011 General Elections. Learned Counsel stated further that apart from Exhibit AA2 and AA3 the 3rd Respondent did not receive any other notice of party primaries from the 1st Respondent neither did it monitor any other primaries conducted by the 1st Respondent wherein the Appellant emerged as the winner and candidate for the 1st Respondent.
He also referred to Section 87 (4) (5) (i) of the Electoral Act 2010 as amended and submitted that it could be inferred from the section, that the National Executive Committee of each political party is in charge of the conduct of their primaries and same is saddled with the responsibility to forward the names of the winner thereof to INEC through the National Secretariat in compliance with the Act.
He submitted that the decision of the National Executive Committee of the 1st Respondent to forward the name of the 4th Respondent to INEC i.e. 3rd Respondent through its National Secretariat is conclusive and valid as far as the 3rd Respondent is concerned. He also referred to Exhibit AA1 which is the Electoral Guidelines 2010 for the 1st Respondent and Article 15(3) which provides that:-
The decision of the National Executive Committee of the party on all primary election matters shall be final and binding-”
It was argued further on behalf of the 3rd Respondent that the submission of the name of the 4th Respondent by the 1st Respondent to the 3rd Respondent was in compliance with the relevant provisions of the Electoral Act. And the law is settled that once a candidate is nominated by his political party and presented to the Electoral body and same is published, he remains a candidate in the Election.
He relied on the case of:-
Okocha vs. INEC (2009) 7 NWLR Part 1140 page 295 at 308 paragraph H.
The learned Senior Counsel for the Appellant in his reply to the 3rd Respondent’s brief submitted that the cases relied upon by Counsel for the 3rd Respondent are not relevant under the present dispensation. He also stated that contrary to the evidence that the 3rd Respondent did not receive any other notice of party primaries from the 1st Respondent apart from Exhibit MM2, that the 3rd Respondent received and duly acknowledged by its stomp Exhibit 10 which is the letter of invitation to observe and monitor the 1st Respondent’s State Congress wherein the Appellant emerged as Gubernatorial Candidate.
It was submitted that the authentic State Executive of the 1st Respondent having served Exhibit 10 attached to the Appellant’s affidavit in reply to the 3rd Respondent’s counter affidavit has fulfilled the condition precedent to the holding of the special State Congress. He went further in his argument that the attendance of the 3rd Respondent to monitor the Congress that produced the 4th Respondent is illegal.
The learned Senior Counsel for the 4tn Respondent stated that pursuant to Articles 12.72(j), 17 .1 and 17.2 of the Constitution of the Peoples Democratic Party 2009 as amended, the 1st Respondent drew up Electoral Guidelines for its 2010 primary elections. The said Electoral Guidelines was introduced by the Appellant into the proceeding as Exhibit 7. And in order to demonstrate the importance of the PDP Electoral Guidelines in the conduct of the 1st Respondent’s 2010 primary elections, the 1st to 4th Respondents like the Appellant, relied on the said Guidelines. They respectively brought them into the proceedings as Exhibits PDP6, AA1 and BB2.
It was contended on behalf of the 4th Respondent that the purported selection of the Appellant as the 1st Respondent’s purported Governorship Candidate for April 2011 general elections runs counter to the provisions of the 1st Respondents’ Electoral Guidelines for the primary elections. And that no provision of the Appellant’s Exhibit 7 gives the State Chapter of the 1st Respondent the competence to set up a Gubernatorial Screening Committee.
The learned Senior Counsel for the 4th Respondent stated that the 4th Respondent tendered in evidence to show that the process through which he emerged as Abia State Governorship Candidate of the 1st Respondent was consistent with the Electoral Act and Exhibit 7 or Exhibit BB2. And that consistent with Article 16(a) (b) of Exhibit 7, the 1st Respondent appointed a Gubernatorial Screening Committee for each of the 6 Geo-Political Zones in the country. He said that this was published in two Newspapers, Thisday and Guardian respectively on 20/12/2010 (See 4th Respondent’s Exhibit CC and Exhibit DD pages 10,286 – 10287 Volume III of the record). He went further that the Gubernatorial Screening Committee successfully discharged its assignment and rendered a report Exhibit EE. It cleared the 4th Respondent to contest the Governorship Primary Election. And in consequence of that clearance, the 4th Respondent was issued with a Provisional Clearance Certificate which is 4th Respondent’s Exhibit FF. See pages 10,290 Volume III. He went further that the Appellant did not challenge the decision of the Screening Panel that he was absent. Article 16(d) of Exhibit BB2 and the Appellant’s Exhibit 7 gave the Appellant the right to appeal in writing within 24 hours or so soon thereafter from the time of the announcement of the result of the screening but that he did not bother to appeal against that decision, he is therefore deemed to have accepted the decision.
He relied on the case of:-
– Udodinma vs. Izunaso an unreported decision of the Supreme Court in Appeal No. SC.117/2011 delivered on 20/5/2011.
In his reply brief of argument to the 4th Respondent’s brief, the learned Senior Counsel for the Appellant stated among others that the contention that the Appellant’s Claim of the lower Court was based on PDP Guideline Exhibit 7 is wrong.
He submitted that none of the questions raised for determination by the Appellant mode on issue of total compliance with all the provisions of Exhibit 7 as a condition for entitlement of Appellant to the Abia Party Gubernatorial ticket. He went further in his argument that having produced the entire Guideline as a whole, those provisions which become subject of attack were those relied upon by Respondent.
It was also argued that a document tendered for a purpose cannot be applied to serve a different purpose. And where a document is pleaded to establish a particular fact, it can only be used for that fact and cannot be used to prove another fact which is not on issue in the pleadings. He relied on the following cases:-
– Omega Bank Nig. Plc v. O.B.C. Ltd (2005) 8 NWLR Part 928 page 547 at 585 Paragraph C;
– Ishola v. U.B.N. Ltd (2005) 6 NWLR Part 922 page 422 at 439 paragraphs D – E.
Learned Senior Counsel urged that the 4th Respondent’s argument on this issue should be rejected.
On the issue of distinction between Special State Congress and Ordinary State Congress, it was argued that a Special State Congress is only special in terms of its holding in the interval between the general Ordinary State Congresses which hold every two years. Such Special State Congress is still governed by the same procedure as the State Congress, save that appointed public office holders are debarred from voting in a Special State Congress to elect a Gubernatorial Candidate.
In line with the issue for determination in this appeal the lower Court determined who between the Appellant and the 4th Respondent was nominated of the primary election conducted by the 1st Respondent in accordance with its Constitution and Electoral Guidelines.
The question that comes to my mind of this juncture is what does the 1st Respondent’s Constitution provide in respect of nomination of candidate for General Election.
Article 12.72(j) of Exhibit PDP 5 which is at pages 949 to 1004 Volume II of the record of appeal provides:-
“the National Executive Committee shall (j) make Party Electoral Regulations to govern the conduct of elections to all party offices at every level and regulate the procedure for selecting the party candidate.”
Article 17(2) of Exhibit PDP 5 i.e. the Constitution elevates the provisions of Electoral Guidelines above other provisions of the 1st Respondent’s Constitution as contained in Article 12 which provides:-
“Notwithstanding the provision of Article 12 of this Constitution, the National Executive Committee shall regulate the procedure for selecting the party’s candidate for elective offices in the following manner….”
Therefore in determining the validity or otherwise of a primary election, it is the provision of the applicable Electoral Guideline that should be considered.
The said Electoral Guidelines is Exhibit PDP 6.
Paragraph 16 (a) of Exhibit PDP 6 of page 929 of the record provides:-
“There shall be a Gubernatorial screening Committee to be appointed by the National Executive Committee of the party on the recommendation of the National Working Committee of the party for each of the 6 Geo-Political Zones, whose sole responsibility should be to screen the gubernatorial aspirants.”
Paragraph 16(f) of the said Electoral Guidelines i.e. Exhibit PDP 5 provides thus:-
“Only aspirants cleared by the Gubernatorial Screening Panel or whose appeal the Gubernatorial Screening Appeal Panel has upheld, shall be qualified to participate in the primary elections.”
The Appellant did not participate in the screening exercise carried out by the Committee constituted for that purpose by the National Executive Committee.
The non participation of the Appellant in the screening exercise was brought out in the affidavit in support of the originating summons (See pages 11 to 18 of Volume I of the records). At paragraphs 9 to 10 the Appellant deposed thus:-
“(9) That on 31/12/2010, I was invited and I appeared before the Special Gubernatorial Screening Panel of the Abia State Executive Committee of the 1st Defendant as provided for in the party Guidelines for conduct of Primaries ahead of 2011 General Election.
(10) That I appeared before the Screening Panel after which the Screening Panel notified me in writing that I was successful and advised me to commence full preparation of the Gubernatorial Primaries fixed for 9th January 2011. Attached herewith and marked Exhibits 8 and 9 are the State Executive Screening Panel invitation letter dated 18/12/2010 and 23/12/2010 respectively.”
The deposition above showed that it was the Screening Committee constituted by the “State Executive Committee” that screened and cleared the Appellant.
On the other hand the 1st and 2nd Respondents in their counter affidavits against the originating summons on pages 899 – 905 particularly of paragraph 10(ii) (v) and (vi) deposed that:-
“(10)(ii) Under the Constitution and Electoral Guidelines for Primary Election made pursuant thereto, State Chapters of the 1st Defendant are not empowered to set up screening committees or Electoral Committee for any category of party or public office.
(v) In line with ifs Electoral Guideline the 1st Defendant’s National Executive Committee/National Working Committee set up a Gubernatorial Screening Committee for each Political Zone of the Federation, including South East Zone to screen all aspirants who indicated interest in the Gubernatorial race by obtaining the requisite form and present themselves before the Screening Committee to ascertain their eligibility in line with the guideline and issue them with Certificate of Clearance if found qualified.
(vi) That I know as a fact that the plaintiff did not present himself for screening.”
The depositions above, clearly established that the Appellant did not participate in the screening and primary election conducted by the State Gubernatorial Electoral Panel constituted by the National Executive Committee of the 1st Respondent.
All I have said above boiled down to the fact that in the determination of who the candidate of a political party should be, it is the preserve of the political party through their various party primaries based on the Guidelines and Constitution of the party. It is a domestic issue of the party, therefore a Court has no Jurisdiction to nominate a candidate for a political party or compel a political party to nominate or sponsor a candidate except as provided in Section 87 of the Electoral Act 2010 (as amended) See the following cases:-
-Ehuwa v. O.S.L.E.C. (2006) 18 NWLR Part 1012 page 544;
– Onuoha v. Okafor (1983) 2 SCNLR page 244;
– Dalhatu v. Turaki (2003) 15 NWLR Part 843 page 310;
– Davies v. Mendes (2007) All FWLR Part 348 page 883.
The above view is also supported by the recent decision of the Supreme Court in the case of H. Uzodinma v. Senator O. B. Izunaso Appeal No. SC.117/2011 delivered on 20/5/2011 where it was held among others by Rhodes-Vivour JSC that:-
“In an action to determine who a party nominated as its candidate, the impute of the party is of paramount importance.”
It has been contended that Abia State Executive Committee is competent to organise Governorship Primary Election of 1st Respondent. It must be remembered that the Abia State Executive Committee had earlier been dissolved by the National Executive Committee of the 1st Respondent. (See pages 906 – 911 of the record). Therefore the said Abia State Executive Committee did not have any Legal Status when it purportedly returned the Appellant.
There is also the Exhibit PDP 12 on page 17714 of Vol. III of the records. It is a Judgment that validated the new Executive Committee elected on 6/ 12/2010. The said Judgment was before the trial Court.
It is settled law that Judgment of competent Jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a Court of competent Jurisdiction.
See the following cases:-
– Babatunde v. Olatunji (2000) 2 NWLR Part 646 page 557 at 568;
– Ezeokafor v. Ezeilo (1999) 9 NWLR Part 619 page 513 at 530.
Another important issue raised in the Appellant’s brief of argument is in respect of the legal effect of Exhibit PDP 6 or Exhibit 7 vis-a-vis the PDP Constitution, the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The learned Senior Counsel for the Appellant stated that Exhibit 7 attached to the originating summons is the same as Exhibit PDP6 attached to the 1st and 2nd Defendants/Respondents counter affidavit to the originating summons. The said Exhibit is the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party which was made pursuant to Article 12.72(j) of the Registered Constitution of the 1st Respondent.
He argued that Article 17.1 of the Constitution merely incorporated the principle of non-justiciability of nomination of candidates as internal affairs of the Political Party as enunciated in Onuoha v. Okafor (supra). But that the Article must be read subject to the provisions of Section 87(9) and (10) of Electoral Act 2010 (as amended). He submitted that the legislative intent behind the Electoral Act 2010 is to curb excessive and arbitrariness of the National Organs of Political Parties in manipulating the process of party primaries or disregarding the will of the party members in democratically choosing their flag bearers at general elections. He went further that this is also in accord with the provisions of Section 228 (a) and (b) of the 1999 Constitution (as amended).
He also referred to paragraph 7 of the preamble to the Electoral Guidelines for primary Elections 2010 of the Peoples Democratic Party.
-Paragraph 15(3) and 51 of the same Electoral guidelines.
It was submitted on behalf of the Appellants that, the provisions of finality of decision of the National Executive Committee and subordination of the result of eligible delegates of the appropriate party congress of convention electing a candidate to approval of the National Executive Committee are inconsistent of the express provisions of Section 228(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 87 (2), (6) and (9) of the Electoral Act 2010.
He submitted that the party Constitution ranks superior in its legal force to a mere Guideline. He relied on the cases of:-
-Ugwu vs. Ararume (2007) 12 NWLR Part 1048 page 367;
-Labiyi vs. Anretiola (1992) 8 NWLR Part 258 Page 139
-Military Governor, of Ondo State vs. Adewumi (1998) 3 NWLR part 82 page 280 at 300.
It was further submitted on behalf of the Appellant that the Court erred in law in not upholding the argument of Appellant’s Counsel.
He finally urged this Court to hold that the learned trial Judge did not correctly construed the legal effect of Exhibit PDP6 or Exhibit 7 PDP i.e. (Electoral Guideline) vis-a-vis the PDP Constitution, the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 in not upholding the nomination of the Appellant as the Governorship Candidate of the 1st Defendant in Abia State.
In his response the learned Counsel for the 1st and 2nd Respondents stated that all parties in this appeal introduced and relied upon the Electoral Guidelines of the Peoples Democratic Party i.e. Exhibit PDP 6 or Exhibit 7.
He submitted that the Provisions of the Guidelines do not in any way conflict with those of the Constitution and further that under the Electoral Act 2010 (as amended) the Guidelines enjoys statutory flavours over and above the party Constitution in view of Section 87 of the Electoral Act 2010 as amended. He went further in his submission that the law is settled that a document introduced before a Court of law with a purpose in view, such documents con only be used for that stated purpose. He relied
On the following cases:-
– Kalu vs. Uzor (2006) 8 NWLR Part 981 Pages 66 at 87:
– Ajide vs. Kelani (1985) 3 NWLF Part 12 Pager 248
He finally urged this Court to uphold the decision of the trial Court on this issue.
The learned Senior Counsel for the 4th Respondent made similar submissions like that of the Counsel for 1st and 2nd Defendants/Respondents, I will therefore not repeat the submissions.
It is clear from the submissions and pleadings of the parties to this appeal that the Electoral Guidelines of the Peoples Democratic Party was introduced and relied upon by Counsel for the potties to this appeal. Learned Counsel for the Appellant referred to Article 17.2(b) of the 1st Respondent’s Constitution and also to paragraphs 7 and 51 of the Guidelines and he submitted that the provisions of finality of decisions of the National Executive Committee and subordination of the result of the eligible delegates of the appropriate Party Congress of convention electing a candidate to approval of the National Executive Committee ore inconsistent with the Provisions of Section 228(a) and (b) of the Constitution of the Federal Republic of Nigeria and Section 87 (2), (6) and (9) of the Electoral Act 2010 (as amended).
In my humble view, there is no conflict between the Electoral Guidelines and PDP Constitution or the 1999 Constitution. The Guidelines, the Party’s Constitution and the 1999 Constitution of the Federal Republic of Nigeria have to be read together. In fact the provisions of the Electoral Guidelines enjoy statutory flavours under Section 87(9) of the Electoral Act 2010 (as amended).
Section 87 (9) of the Electoral Act 2010 as amended provides as follows:-
“Notwithstanding the provisions of the 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…; for redress.”
The Rules referred to in the above provisions is the Constitution of a political party. The use of the word “Notwithstanding” is to subordinate the rules of such political party to the provision of the guidelines which must form the basis of the cause of action.
See:-
– NDIC vs. Okem Enterprises Ltd (2004) 10 NWLR Part 880 page 107 at 182.
I have earlier said that all the parties to this appeal introduced and relied upon the Electoral Guidelines i.e. Exhibit PDP6.
It is settled law that where a party has tendered a document in a Court of law and it is admitted as an exhibit, he is bound by the document and cannot disassociate himself from it.
See the following cases:-
– Onwudinjo vs. Dimobi (2006) 1 NWLR Part 916 page 318 at 338;
– Ajide v. Kelani (1985) 3 NWLR Part 12 page 248;
– Oje v. Babalola (1991) 4 NWLR Part 185 page 277.
The learned trial Judge in his review of evidence stated that:-
(See page 10595 of Volume 3 of the record of appeal)-
“I asked: Is the alleged invalidity of the 1st Defendant’s Guidelines for the Party Primary Election 2011 which all parties seem to have reproduced, part of the plaintiff’s claims? I think not so, how can the plaintiff now begin to attack the self same Guidelines he had contended that the 1st and 2nd Defendant did not comply with before nominating the 4th Defendant to the 3rd Defendant.”
At page 10710 of the record the learned trial Judge also stated:-
“when I read the aspect of the Plaintiffs Counsel submission I went back to re-read the question set for determination in both the originating summons and the concurrent originating summons as well as the reliefs being sought by the plaintiff against the Defendants. My reading and assessment of these questions and reliefs did not reveal that the plaintiff, who had also produced this same Guidelines of the 1st Defendant as Exhibit 7 to the reply to the 1st and 2nd Defendants’ counter affidavit never set out a challenge as it were, the constitutionality or legality of the 1st Defendant’s Guidelines for Party’s Primary Election 2011. This issue, not being a trivial one but also one of the foundations upon which the plaintiffs reply to the 1st and 2nd Defendants addresses. It’s such a fundamental issue which I regard as the foundation of the Defendant’s primary elections for all elective offices in which it is fielding candidates including the Abia State Governorship election in which both the plaintiff and the 4th Defendant have laid claim to being the nominated/elected candidate to fly the 1st Defendant’s flag in the April 2011 General Elections.”
It is my view that since the Appellant has tendered Exhibit 7 which the 1st and 2nd Defendants exhibited as PDP6, he is bound by the document and he cannot disassociate himself from it. See:-
– Owudinjo vs. Dimobi (Supra):
– A. G. Enugu State vs. AVOP Plc (1995) 6 NWLR Part 399 Page 90 at 120 – 121.
The issue in this appeal is hereby resolved against the Appellant.
Consequent upon the foregoing, the trial Court was right when it concluded that the constitutionality of Exhibit 7 cannot be raised so casually and also resolved questions 1 to 4 in the originating summons against the Appellant and refused the reliefs predicated upon the questions.
Therefore this Appeal lacks merit and it is hereby dismissed.
I will not award any cost in order to promote reconciliation between parties.

ZAINAB A. BULKACHUWA, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother Bada, JCA.
I agree with the reasoning and conclusion reached in dismissing the appeal. I am also of the view that the appeal is devoid of merit and should fail. It accordingly fails and is hereby dismissed.
The decision of the Federal High Court Abuja of 28th February, 2011 is affirmed.
I abide by the order on costs as contained in the lead judgment.

REGINA OBIAGELI NWODO, J.C.A.: I read in advance the leading judgment of my learned brother, Jimi Olukayode Bada, JCA just delivered. His lordship has extensively addressed the main issues raised that I agree with the reasoning set out therein and the conclusion arrived thereat that the appeal be dismissed.
The courts should always be reluctant to delve into the issue of who is a candidate of a Political Party at any election. The reason is obvious, the candidature of a member of a party in a true Democratic System is the domestic affair of the party. The relevant statutes have limited the extent of the intervention of the courts in domestic affairs of the party.

The courts have no jurisdiction to nominate, appoint or anoint a candidate for a political party or compel a political party to sponsor a candidate outside the ambit of the powers conferred on the court as provided under Section 87 of the Electoral Act 2010 (as amended).
See Ehuwa v. O. S. IEC (2006) 18 NWLR (Pt.1012) 544.
Davies v. Mendes (2007) All FWLR (Pt.348) 883.
Therefore, the court’s jurisdiction in relation to complaints arising from primary election of political parties is limited to whether the primary election conducted by the party for nomination of a candidate was conducted in line with the provisions in the Electoral Act, (as amended) the Party Constitution and the Party guideline. This role the learned trial judge in his judgment in the instance case exhibited admirably.
Exhibit 7 is the 1st respondent’s guideline. The provisions therein are explicit. All parties referred and relied on that document. Article 15 of the guideline sets out the procedure to be followed by an aspirant interested in contesting for the Gubernatorial Election. Article 16(a) specifically stated that there shall be a gubernatorial screening committee to be appointed by the National Executive Committee of the party on all Primary Election Matters. Article 15(1) requires that the expression of interest form shall be picked from the National secretariat of the party. Article 16(f) states that only the aspirants cleared by Gubernatorial Screening Committee or the Appeal Panel shall be qualified to participate in the Primary election.
The guideline also stipulates that the Gubernatorial Primary election shall be held on the dates approved by the National Working Committee of the party.
It is crystal clear from the aforesaid provisions in the guidelines of the 1st respondent and under Section 87 of the Electoral Act (as amended) that the party envisaged therein is the party at the National headquarters not the State branch. Article 20(1) also stipulates that the State Electoral Panel shall consist of five persons appointed by the National Executive Committee on the recommendation of National Working Committee.
It is therefore indisputable that the gubernatorial primaries conducted in the states are entirely dependent on the directives and schedule set out by the party at the National level vis-a-vis the National Working Committee.
In addition to the specific provisions in the party guideline, the provision under Section 87(4) (b) (1) of the Electoral Act 2010 as amended confers on the party at the National level the responsibility to specify a date for the congress and the primaries not the state branch of the party. The appellant in his affidavit in support of the originating summons averred to the fact that the State Executive Committee notified the 3rd respondent of the date of election.
From the provisions under the Electoral Act, the duty to inform INEC is that of the party at the National level not the State Executive. Section 87 (4) (b) (1) and (11) confers on the National Executive Committee of the party the responsibility of conducting the primaries and to forward the names of the winners in the primaries to INEC. The 1st respondent in the instance case forwarded the names of the fourth respondent to INEC. That decision of the National body was in compliance with the provisions of the Electoral Act 2010 (as amended).
The Appellant from the affidavit in support of the originating summons also averred he appeared before the special Gubernatorial Screening Panel of the Abia State Executive Committee of the 1st respondent.
The Electoral guideline of the party specifically provides, that the Screening Committee should be appointed by the National Executive Committee not the State Executive. The appellant presented himself for screening in the Screening Committee organized by the state and did not participate in the Screening Panel constituted by National Executive Committee of the 1st respondent.
It is trite that where a statute or rules stipulates a specific procedure as condition precedent, it behoves on the person involved to follow the procedure so ascribed. The non compliance is fatal to his complaint.
The trial court evaluated the documentary evidence and appraised the facts justifiably that it is not the business of this Court to interfere with his findings.
The decision of the court below is in order and there is no reason why it should be touched.
For the forgoing and the fuller reasoning in the lead judgment, I also hold the appeal is devoid of merit and accordingly dismissed. I abide by the order as to cost.