COLE v. APC & ORS
(2022)LCN/16301(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, December 15, 2022
CA/PH/519/2022
Before Our Lordships:
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
TONYE PATRICK COLE APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS (APC) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. GEORGE ORLU 4. UEBARI FUBARA OKO 5. SARO JACOB IGBEGHE 6. HENRY N. KPUNEE 7. AKEERE PROMOTER LEDEE 8. OKOCHA EMMANUEL M. (For Themselves And Representing Four Hundred “400” Other Members Of The 1st Defendant Unlawfully Excluded) RESPONDENT(S)
RATIO:
JURISDICTION IS A THRESHOLD ISSUE AND LIVEWIRE THAT DETERMINES THE AUTHORITY OF A COURT OF LAW
As a threshold issue, the importance of jurisdiction was re-echoed by Okoro, JSC, in Ikpekpe vs. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR-44471 SC), thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted.” MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE FUNDAMENTAL NATURE OF JURISDICTION
The fundamental nature of jurisdiction was recently restated by the Apex Court in the case of Yongo & Ors vs. Hanongon & Ors (2022) LPELR- 57282 (SC), per AdamuJauro, JSC, thus:
“It is settled that jurisdiction is a threshold issue which is fundamental and crucial to adjudication. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. It is crucial because where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are.”
In Utih vs. Onoyivwe (1991) LPELR-3436 (SC), Bello, CJN, graphically painted the picture of jurisdiction in the following words:
“… jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE DETERMINATION OF JURISDICTION
Bairamian, JSC, stated how jurisdiction can be determined in the celebrated case of Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC) as follows:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.” MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE SCOPE ON WHAT CONSTITUTES PRE-ELECTION MATTERS
It is correct to say that the case of APC vs. Umar expanded the scope of what constitute pre-election matters as well as the parties who are competent to file same. In that case, the Supreme Court, per Sanusi, JSC, held at pages 15-16 of the E-Report that:
“I think it would be apt to say that the word “election’ means the process of choosing by popular votes, a candidate for political office in a democratic government. See Ojukwu v Obasanjo (2004) 12 NWLR (pt.886) 169, Buhari v Obasanjo (2005) 2 NWLR (pt.910)241. It goes without saying therefore, that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “PRE-election” or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285 (14) of the Constitution 4th Alteration Act 2017.” MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE TRUE TEST OF A TRIAL CONDUCTED FAIRLY IS THE REASONABLE MAN TEST
The true test of whether a trial is conducted fairly is the impression of a reasonable man or an impartial observer who was present at the trial, whether from his observation he will conclude that the Court was fair to all the parties in the proceedings, i.e., that justice has been done. See Amanchukwu vs. F.R.N.(2009) LPELR- 455 (SC); Mpama vs. First Bank of Nigeria Plc (2013) LPELR-19896 (SC); Pam vs. Mohammed(2008) LPELR-2895 (SC). MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE LAW ON FAIR HEARING IN A PROCEEDING
In the above restatement of the law on fair hearing, there is heavy emphasis on “party” to the proceedings. In the instant case on appeal, the Appellant was not a party to theproceedings at the lower Court, yet the Court made an order adverse to his rights and interest. That was the basis of his complain of denial of fair hearing as he was not a party to the suit to enable him defend his interest. The Appellant’s contention is that as the Governorship candidate of the 1st Respondent, the order of the trial Court, granting relief 5 claimed by the 3rd – 8th Respondents in a proceeding in which he was not a party, has adversely affected his interest and denied him the right to be heard. MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE POWER OF THE COURT TO MAKE AN ORDER THAT WILL AFFECT THE INTEREST OF ANY PERSON
In our adversary system of adjudication, the rule has evolved over time that the Court cannot make a finding that will be prejudicial against a person that is neither before it nor party to the case and in the same vein, cannot grant a relief against such a non-party. In other words, a Court has no power to make an order that will affect the interest of any person or persons who is or are not parties to the case or dispute before it. Where such an order is made it cannot be binding against the person who is not a party to the action. See Kokoro-Owo&Ors vs. Lagos State Government & Ors (2001) LPELR-1699 (SC),Uwazuruike & Ors vs. A.G. Federation (2013) LPELR-20392 (SC) at 32-33, Alioke vs. Oye&ors(2018) LPELR-45153 (SC) at 16, Oyeyemi vs. Owoeye (2017) LPELR-41903 (SC), Ndoma-Egba vs. Chukwuogor(2004) LPELR-1974(SC). The general principle of law is that no person is to be adversely affected by a judgment in an action to which he was not a partybecause of the injustice in deciding an issue against him. MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE DEFINITION OF A LOCUS STANDI
Locus standi is the legal capacity to institute legal proceedings before a Court. It is the standing to sue or the competence of a party to sue. See Taiwo vs. Adegboro (2011) 11 NWLR (Pt.1159) 562. The term was also defined by Kekere-Ekun, JSC, in B.B. Apugo & Sons Ltd vs. OHMB (2016) LPELR-40598 (SC), as follows:
“Locus standi is the legal right of a party to an action to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.” MUHAMMAD IBRAHIM SIRAJO, J.C.A.
CHALLENGING THE CONDUCT OF PRIMARY ELECTION AND THE PROVISIONS OF THE ELECTORAL ACT
This provision is plain and self-explanatory. It provides a window to an aspirant to challenge the conduct of primary election by his political party if, in his opinion, the provisions of the Electoral Act and Rules and Guidelines of his political party have not been complied with. The emphasis here is on the word ‘aspirant’, not a delegate, a proposed delegate or any other party member. Only an aspirant, that is, a candidate at the primary election, possess the locus standi to challenge the conduct of the primary election of his political party or the nomination of a candidate made sequel to the primary election. For a person to qualify or have the locus to institute an action arising from the nomination of a party’s candidature for an election, he must have participated in the nomination exercise as an aspirant and failed, otherwise he would be regarded as a meddlesome interloper and busybody. See Daniel vs INEC (supra), PDP vs. Amin (2019) LPELR-48096 (CA), Ogba vs. Ifeanyi & Ors (2022) LPELR-58653 (CA), Kambaza & Ors vs. APC &Ors. (2020) LPELR-50305 (CA), Muyiwa vs. Muhammed &Ors (2021) LPELR-56446 (CA). MUHAMMAD IBRAHIM SIRAJO, J.C.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): Before the Federal High Court, Port Harcourt Judicial Division (the lower Court), the 3rd – 8th Respondents, as Plaintiffs instituted an action by way of Originating Summons against the 1st and 2nd Respondents, as 1st and 2nd Defendants respectively, claiming three declarations and four orders as follows:
1. A DECLARATION that the 1st Defendant, its officials and members are bound by Section 84 (3) of the Electoral Act, 2022 (as amended) which relates to the qualification of aspirant for any election in the Party.
2. A DECLARATION that the Plaintiffs and all other members of the 1st Defendant who paid for Nomination Forms to participate in the 1st Defendant’s 2022 Ward and Local Government Congresses in order to be elected as delegates have the constitutional right to participate in the said Congresses.
3. A DECLARATION that the exclusion of the Plaintiffs by the 1st Defendant from participating in the Party’s Ward and Local Government Congresses that were purportedly held on the 18th and 19th of May, 2022 in Rivers State is unconstitutional, null, void and a denial of the Plaintiffs’ Constitutional right to participate in the election of delegates.
4. AN ORDER setting aside the purported Ward and Local Government Congresses of the 1st Defendant that were purportedly conducted in Rivers State on the 18th and 19th of May, 2022 or any other date in exclusion of the Plaintiffs.
5. AN ORDER setting aside the primary election of the 1st Defendant held in Rivers State for the election of the 1st Defendant’s candidates for offices of Governor of Rivers State, Members of National Assembly and State House of Assembly conducted following the exclusion of the Plaintiffs from participating in the purported Ward and Local Government Congresses of the 1st Defendant of May 18th and 19th 2022.
6. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from recognizing, acting on or accepting the result of the said Ward and Local Government Congresses of the 1st Defendant that were purportedly held on the 18th and 19th of May, 2022 or any other date.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from recognizing, or in any way acting upon the Rivers State purported primary elections of the 1st Defendant conducted based on the result of the alleged Ward and Local Government Congresses of the 1st Defendant of May 18th and 19th 2022 in Rivers State that excluded the Plaintiffs from participation.
And for such Order(s) as the Honourable Court may deem fit to make in the circumstance.
The Originating Summons was dated and filed on 30/05/2022 and is contained at pages 1 – 82, Volume 1 of the Record of Appeal. In response, the 1st Respondent filed a counter-affidavit in opposition to the action and a preliminary objection challenging the competence of the action by way of Motion on Notice. The 2nd Respondent, as 2nd Defendant, did not file any process against the suit at the lower Court. There was an attempt by one Chijemezu Welendu Mmanhobu-Amadi and Frank Womeodu to join the suit as 3rd and 4th Defendants (for themselves and representing elected delegates of Ward one Ikwerre Local Government Area of Rivers State), via a motion for joinder filed on 10/08/2022. The learned trial Judge heard the application for joinder, the preliminary objection and the substantive Originating Summons together. In a judgment delivered on25/10/2022, at pages 1274 – 1349, Volume 2 of the Record of Appeal, the lower Court dismissed both the application for joinder and the preliminary objection and granted all the reliefs claimed by the Plaintiffs, now 3rd – 8th Respondents, even though it has not gone into the merits of the case. The lower Court ended its judgment with the following statement at page 1349, Volume 2 of the Record: “It is important to state here that based on the reasons given above this Court cannot proceed to determine this suit on merits.”
Aggrieved by the decision of the lower Court which affected his rights and interest, the Appellant, who is the Rivers State Governorship Candidate of the All Progressives Congress, the 1st Respondent, sought for and obtained leave of this Court to appeal as an interested party, having not being a party to the suit at the lower Court. Consequent upon the leave granted him on 04/11/2022, the Appellant challenged the judgment of the lower Court vide a Notice of Appeal filed on 07/11/2022, anchored on four grounds of appeal. The Notice of Appeal occupies pages 1354 – 1362, Volume 2 of the Record of Appeal.
The reliefs sought by the Appellant at paragraph 4 of the Notice of Appeal are:
1. An order allowing this appeal and setting aside the judgment of the Court below delivered by Hon. Justice E.A. Obile on 25th October, 2022.
2. Any other order or orders that this Honourable Court may deem fit to make in the circumstances.
Briefs of Argument were filed and exchanged by the Appellant and the 3rd – 8th Respondents. The 1st and 2nd Respondents did not file any Brief. The Appellant’s Brief of Argument, settled by Godwin Omoaka, SAN, with Cyriacus C. Orlu, Esq., Munachiso Michael, Esq., and Francis Jarigo, Esq., was filed on 18/11/2022. A Reply Brief, also settled by the same team of counsel that settled the Appellant’s Brief, was filed on 23/11/2022. The Brief of Argument of the 3rd – 8th Respondents, prepared by F.C. Nwafor Esq., with Biobele W. Georgewill Esq., was filed on 21/11/2022. The same team of counsel for the 3rd – 8th Respondents prepared and filed the 3rd to 8th Respondents’ reply on points of law in support of notice of preliminary objection on 24/11/2022. At the hearing of the appeal, Cyriacus C. Orlu Esq.,adopted the Appellant’s processes and urged the Court to allow the appeal. S.C. Nwafor Esq. with B.W. Georgewill Esq., C.D. Asomeji Esq., and W.B. Esaenwi Esq., adopted the processes filed by the 3rd – 8th Respondents in urging the Court to dismiss the appeal.
The 3rd – 8th Respondents incorporated a notice of preliminary objection in their Brief of Argument. I will proceed to consider the preliminary objection with a view to determining whether it is capable of disposing off, or terminating the appeal in limine. The usual practice is to determine the preliminary objection first so as to know the next line of action the Court should take. See SPDC & Ors vs. Agbara & Ors (2015) LPELR- 25987 (SC). The preliminary objection of the 3rd – 8th Respondents was predicated on the ground that the Appellant’s Notice of Appeal filed on 07/11/2022 is not a replica of the proposed Notice of Appeal as the Appellant amended some paragraphs of the Notice of Appeal without the leave of Court. Another ground of the preliminary objection is that the Record of Appeal is incomplete in that the Appellant’s application for leave to appeal and the proposed Notice of Appeal do not form part of the Record.
Arguing the preliminary objection, learned counsel for the 3rd – 8th Respondents drew the Court’s attention to the amendments made in some paragraphs of the Notice of Appeal, which, according to him, where made without the leave of Court. It was the submission of learned counsel that there is no provision in the Rules or Practice Direction of this Court that permit the Appellant to amend some paragraphs of his proposed Notice of Appeal without leave of Court first sought and obtained, citing, Enigbokan vs. American Int’l Insurance Co. (Nig.) Ltd (1994) 6 NWLR (Pt.348) 1, Husseini vs Mohammed & Ors (2014) LPELR- 24216 (SC), EFCC vs. Okoh & Anor (2021) LPELR-54855 (CA) and Order 7 Rule 8 of the Court of Appeal Rules, 2021. It was further submitted that since the Notice of Appeal is not a replica of what the Appellant presented to the Court in his motion for leave to appeal as an interested party, the Notice of Appeal filed on 07/11/2022 is a total stranger to the orders made on 04/11/2022, and as such incompetent, thereby robbing the Court of jurisdiction to entertain the appeal.
On the incomplete Record of Appeal, counsel contended that in view of the absence of the Appellant’s motion for leave to appeal together with the proposed Notice of Appeal in the Record of Appeal, the record is incomplete and therefore rendered incompetent. He argued that compilation and transmission of a complete Record of Appeal is a condition precedent to the assumption of jurisdiction by the appellate Court, and where the record is incomplete, the Court will not hear the appeal.
Counsel called in aid the cases of Access Bank vs. Onwuliri (2021) LPELR-53078 (SC), Sommer vs. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548. The Court was urged to sustain the preliminary objection. Learned senior counsel for the Appellant responded to the preliminary objection in the Appellant’s Reply Brief. He submitted that the Notice of Appeal is in all material terms the same as the Proposed Notice of Appeal this Court granted leave to file and that what the Respondents are harping on are clerical errors which were corrected in the final draft. Counsel attacked the competence of the preliminary objection on theground that the objection was filed not in compliance with Order 10 Rule 1 of the Court of Appeal Rules, as no Notice of Preliminary objection as required by the rules, giving the Appellant at least three days’ notice was filed by the 3rd – 8th Respondents. He argued that save for the corrections of clerical errors in some of the particulars, the main grounds of appeal are devoid of any corrections. Learned senior counsel relied on Ogboru vs. Okowa (2016) 11 NWLR (Pt.1522) 84, to submit that particulars of grounds of appeal only provide specific details to fill in yearning gaps in an inexplicit ground. He contended that the Respondents cannot claim that the clerical corrections in the particulars of the Appellant’s Notice of Appeal thrust a surprise on them especially as the corrections are not to the substance of the Notice as to require leave from this Court. It was further argued that assuming that the clerical errors go to the substance of the Notice, the corrections only concern a few particulars, in which case the appeal will still be competent since there are other unaffected grounds to support it, relying on N.A.M.T. Ltd vs. Onikoyi (2011) 4 NWLR (Pt.1236) 135, where the Court held that one competent ground of appeal can sustain an appeal. The Court was urged, in the interest of justice, to depart from the rules since the complaint of the Respondents relates to non-compliance with rules and discountenance the preliminary objection which is founded on technicalities.
On the issue of incomplete Record of Appeal, the Appellant submitted that as required by the Rules of this Court, both the Appellant and the Respondents were present when the Records were settled and compiled and the Respondents cannot now say that they were affected by any omission of processes. Placing reliance on Aniekan vs. Aniekan (1999) 12 NWLR (Pt.631) 491, Appellant’s counsel maintained that where the Respondents were of the opinion that certain documents which ought to form part of the Records have been excluded, it behoves on them to compile supplementary record. Learned counsel opined that the record before this Court contain every process needed for the just determination of this appeal and cannot therefore be said to be incomplete.
Resolution of the Preliminary Objection
In his Reply Brief, the Appellant took objection to the preliminary objection as, according to him, same is incompetent because it was not filed in accordance with Order 10 Rule 1 of the Court of Appeal, Rules. Order 10 Rule 1 provides:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten hard/physical copies and an electronic copy thereof with the Registry within the same time. The preliminary objection shall be argued in the respondent’s brief of argument.”
It is now a settled and established practice of this Court that preliminary objection can be raised in two ways – (a) By filing a separate notice of preliminary objection; or (b) By incorporating the preliminary objection as a separate and distinct heading in the Brief of Argument. See Okereke vs. James (2012) LPELR-9347 (SC). A party who wishes to raise a preliminary objection is at liberty to adopt either of these two methods, provided the attention of the Court is drawn to the objection and it is moved before the substantive appeal is heard or argued. The preliminary objection in the instant appeal was not filed as a separate process, rather, it was incorporated in the Brief of Argument of the 3rd – 8th Respondents. I see nothing wrong with this procedure in that the grounds and argument in support were all incorporated in the brief of the objectors. Consequently, the Appellant’s objection to the manner in which the objection was raised is hereby discountenanced.
I shall now proceed to determine the merits of the preliminary objection. The first ground of objection is that the Appellant amended certain particulars in respect of some grounds of appeal without the leave of Court. That the Notice of Appeal is not a replica of the Proposed Notice of Appeal upon which the Appellant was granted leave to appeal as an interested party. The 3rd – 8th Respondents listed the amendments made by the Appellants in the Notice of Appeal, as follows:
i. Under the 3rd particulars of ground 1, the word “on” in the Proposed Notice of Appeal was replaced with the word “of” in the Notice of Appeal.
ii. Under the 1st particulars of ground 2, the phrase “instituting the instant matter in Court” in the Proposed Notice of Appeal was replaced with the phrase “instituting the matter at the lower Court” in the Notice of Appeal.
iii. Under the 2nd particulars of ground 2, the word “instant” in the Proposed Notice of Appeal was removed from the Notice of Appeal.
iv. In ground 4 of the Notice of Appeal, the words “in law” and “primary” contained in the Proposed Notice of Appeal were removed in the Notice of Appeal.
v. Under the 2nd particulars of ground 4, the word “2D” contained in the Proposed Notice of Appeal was removed from the Notice of Appeal.
vi. Under particulars III of the Proposed Notice of Appeal, the word “extenso” was replaced in the Notice of Appeal with the word “extension.”
It was not the grouse of the 3rd – 8th Respondents that the Notice of Appeal contained more grounds of appeal than the grounds in the proposed Notice of Appeal exhibited to the application for leave to appeal. It was also not the grouse of the 3rd – 8th Respondents that thesubstance of the grounds of appeal in the proposed Notice of Appeal has been changed in the Notice of Appeal that was finally filed by the Appellant. I agree with the submission of the Appellant’s senior counsel that all the corrections alleged by the 3rd – 8th Respondents to amount to amendment, were nothing but correction of typographical errors. For example, the changing of the letter “n” with the letter “f” as in “on” and “of” or replacing the word “extenso” with the word “extension” cannot amount to amendment in law as to require a formal application for leave. I believe the Appellant that what happened was more of clerical errors than amendment, which errors are inconsequential, having not had any bearing or effect on the substance of the Notice of Appeal vis-à-vis the exhibited Proposed Notice of Appeal. The decision of this Court in EFCC vs. Okoh & Anor (2021) LPELR-54855 (CA) to the effect that where leave to appeal has been sought and obtained, the Notice of Appeal shall be a replica of the proposed Notice of Appeal exhibited to the application for leave, does not mean that the Notice of Appeal and the proposed Notice of Appeal must be the same, word for word. That decision has to be considered in the light of the facts to which it relates. In that case, the Appellant, as Applicant, annexed to his application a proposed Notice of Appeal predicated on two grounds of appeal. After obtaining leave to appeal, the Appellant filed a completely new Notice of Appeal with four grounds of appeal instead of two grounds. In the instant appeal, not only are the number of grounds of appeal the same with those in the proposed Notice of Appeal, the substance of the grounds and the particulars are also the same. There was no alteration of the import and substance of the Notice of Appeal. To accede to the preliminary objection of the 3rd – 8th Respondents on this ground is to revert us back to the dark days of the reign of legal technicalities, which has since become moribund. This ground of preliminary objection fails.
The 2nd ground of objection is predicated on incomplete Record of Appeal. 3rd – 8th Respondents have objected to the hearing of the appeal on the ground that the Record of Appeal is incomplete as the Appellant’s application for leave to appeal together with the proposed Notice of Appeal were not part of the Record of Appeal. By Order 8 of the Court of Appeal Rules, 2021, the duty of compiling and transmitting Record of Appeal is that of the Registrar of the lower Court at the instance of the Appellant. Where the Registrar fails or neglects to compile and transmit the Record of Appeal within 60 days of filing the Notice of Appeal, it shall become mandatory for the Appellant to compile the Record. The Respondent may also apply for departure from the rules for it to compile and transmit the Record.
Where any party to the appeal considers that there are Additional Records which may be necessary in disposing the appeal, such a party is at liberty to compile and transmit to the Court of Appeal such Additional Records; Order 8 Rule 6. The rule did not provide that where the Registrar or the Appellant left out from the Record some documents which the Respondent considers important and necessary for the effectual determination of the appeal, the Respondent shall keep mute, lie low and lay ambush for the Appellant by capitalizing on that omission to askfor the dismissal of the appeal on account of incomplete Record. In the area of compilation and transmission of Record of Appeal, both the Registrar, the Appellant and the Respondent have various roles to play. The role the 3rd – 8th Respondents ought to have played in this appeal was to compile and transmit the Additional Records which they intend to rely on to show that the Notice of Appeal filed by the Appellant is not the same with the proposed Notice of Appeal exhibited to the Appellant’s application for leave to appeal. Having failed to compile Additional Record, even though they were present at the settlement of Records which were compiled and transmitted not by the Appellant himself but by the Registrar of the lower Court, the 3rd – 8th Respondents cannot now complain of incomplete Record. I am satisfied that the Record of Appeal, transmitted in two volumes, contained all relevant and necessary documents for the effectual determination of this appeal. It remains to add that the drawn-up order of this Court granting leave to the Appellant to appeal is the only document from this Court that will form part of the Record of Appeal, because the Notice of Appeal has to be filed before the lower Court along with that Order. It is the Order of this Court that will notify the lower Court of the permission granted the Appellant to lodge an appeal. The said Order is part of the Record and has been transmitted at pages 1351 – 1353, Volume 2 of the Record of Appeal. The application for leave to appeal filed before the Court of Appeal is not a process of the lower Court that can be included in the Record of Appeal. From whichever angle the preliminary objection is viewed, it is devoid of merit. It is an unnecessary hair-splitting exercise. For lacking in merit, the preliminary objection is dismissed.
On the substantive appeal, the Appellant nominated four issues for the determination of the appeal as follows:
1. Whether the lower Court did not breach the Appellant’s right to fair hearing when it proceeded to determine the suit and make findings that affected the Appellant’s interest in the absence of the Appellant and without affording the Appellant the opportunity of being heard?
2. Whether the lower Court had jurisdiction to entertain and adjudicate over the suit as between the 3rd – 8th Respondents (Plaintiffs at the lower Court) and the 1st and 2nd Respondents (1st and 2nd Defendants at the lower Court), the 3rd – 8th Respondents having not satisfied the conditions precedent for instituting the suit.
3. Whether the 3rd – 8th Respondents have the locus standi to institute the suit at the lower Court not being members of the 1st Respondent and having not participated in the 1st Respondent’s primary elections and if not, whether the lower Court was right to have determined the issues raised in the substantive suit in the absence of the 3rd – 8th Respondents’ standing to sue?
4. Whether the lower Court pre-judged the substantive suit at the interlocutory stage, and if yes, whether the judgment of the lower Court has not occasioned a miscarriage of justice?
The 3rd – 8th Respondents adopted the above four issues distilled by the Appellant with slight modifications. In the circumstance, I shall adopt the issues formulated by the Appellant in the determination of this appeal, as the slight modifications introduced by the 3rd – 8th Respondents did not change thesubstance of the issues framed by the Appellant. The differences in the issues formulated by the opposing parties, if at all there is any, is in the area of semantics, not in substance.
Appellant’s Argument
Learned senior counsel for the Appellant submitted with respect to issue 1 that the lower Court breached the Appellant’s right to fair hearing when it proceeded to hear and determine the 3rd – 8th Respondents’ suit and made far-reaching findings which affected the Appellant’s rights and interest in the absence of the Appellant and without affording him the opportunity of being heard. He argued that a party who has an interest in a subject matter of Court proceedings and who may be affected by the outcome of such proceedings must be afforded an opportunity to be heard, which the lower Court failed to do in respect of the Appellant herein. In support of this submission, reference was made to the cases of Adamu vs. Akukalia (2005) 11 NWLR (Pt.936) 26, Mekwunye vs. Carnation Registrars Ltd (2021) 15 NWLR (Pt.1798) 1, N.P.A.S.F. vs. Fasel Services Ltd (2001) (Pt. 742), Salu vs. Egeibon (1994) 6 NWLR (Pt.348) 23 at 44.
Further relying on Chitra KWMC Ltd vs. Akingbade (2016) 14 NWLR (Pt.1533) 487, Agwuna III vs. Isiadinso(1996) 5 NWLR (Pt.451) 705. Counsel argued that breach of fair hearing in any proceeding vitiates the proceeding as the Court is stripped of the adjudicatory competence to enter any valid judgment in the proceeding. He referred to the claim of the 3rd – 8th Respondents at the Court below in which they sought for reliefs nullifying the primary election that produced the Appellant as the Governorship candidate of the 1st Respondent without joining him as a party to the suit, as well as the judgment of the lower Court in which the reliefs claimed by the 3rd – 8th Respondents were granted, as clear instances of breach of the Appellant’s fundamental right to fair hearing by both the 3rd – 8th Respondents and the lower Court. The Court was urged to hold that failure to join the Appellant as a necessary party to the suit at the lower Court was fatal to the claim of the 3rd – 8th Respondents as his non-inclusion in the suit has knocked the bottom off the claim of the 3rd – 8th Respondents, citing Buhari & Anor vs. Yusuf & Anor (2003) LPELR-812 (SC), Port Harcourt City Local Government Council vs. Nwobi & Ors (2022) LPELR-58618 (CA). The Court was urged to resolve this issue in favour of the Appellant.
On issue 2, counsel contended that on the evidence before the lower Court, the 3rd – 8th Respondents have not proven to be members of the 1st Respondent, but that assuming they are members of the 1st Respondent as claimed by them, they are bound by the Constitution of the 1st Respondent and Guidelines for the nomination of the 1st Respondent’s candidates for 2023 general election. That being the case, counsel maintained that the lower Court lacked jurisdiction to entertain the suit because the 3rd – 8th Respondents have not complied with the condition precedent for the initiation of the suit, i.e., they did not first exhaust the grievance remedial mechanism provided by the 1st Respondent’s Constitution and the Guidelines before filing the suit at the lower Court. On the fundamental nature of jurisdictional question and when it can be raised, learned counsel relied on Yongo&Ors vs. Hanongon&Ors (2022) LPELR-57282 (SC),Owoniboys Tech Services Ltd vs. John Holt Ltd (1991) 6 NWLR (Pt.199) 550, Agwu vs. Julius Berger Nig. Plc (2019) 11 NWLR (Pt.1682)165, among other cases. It was argued that by Article 21 (B) and (C) of the 1st Respondent’s Constitution, the 3rd – 8th Respondents were expected to follow the internal disciplinary and appeal mechanisms provided therein if they were aggrieved with any procedure or outcome of the 1st Respondent’s internal elections or processes. Having not led evidence to prove that they complied with the provision of Article 21 (B) and (C) of the APC Constitution, the suit of the 3rd – 8th Respondents at the lower Court was incompetent and the lower Court had no jurisdiction to entertain it. Consequently, submitted the learned counsel, the proceedings and judgment of the lower Court amounts to a nullity. Aguma vs. APC (2021) 14 NWLR (Pt.1796) 351 was relied upon in support of the preceding submission. The Court was urged to hold that the fundamental condition precedent for the activation of the jurisdiction of the lower Court has not been fulfilled before the institution of the suit thereby robbing the lower Court of jurisdiction.
On issue 3, the summary of counsel submission is that the 3rd – 8th Respondents lack the locus standi to institute the action at the lower Court, not being members of the 1st Respondent and having not participated in the primary election of the 1st Respondent. Reference was made to the finding of the lower Court at page 1299 of the record to the effect that the 3rd – 8th Respondents did not participate in the 1st Respondent’s primary election, as a result of which, counsel submitted, they lacked the locus standi to file the action at the lower Court by virtue of Section 84 (14) of the Electoral Act, 2022, Maihaja vs. Gaidam (2018) 4 NWLR (Pt.1610) 454, cited and relied on.
Presenting argument on issue 4, it was Appellant’s counsel submission that the learned trial Judge prejudged the substantive suit at an interlocutory stage while delivering ruling on the 1st Respondent’s preliminary objection by stating that the action taken by the 1st Respondent in preventing the 3rd – 8th Respondents from participating in the screening exercise is a breach of Section 40 of the 1999 Constitution. He argued that the said pronouncement by the lower Court at the interlocutory stage amounts to denial of fair hearing and occasioned a miscarriage of justice. This Court was urged to allow the appeal and set aside the judgment of the lower Court.
3RD – 8TH Respondent’s Argument
Learned counsel for the 3rd – 8th Respondents noted that Appellant’ issue 1 has a fundamental defect in that the finding of the lower Court in its judgment that Tonye Cole is not a necessary party in the suit because the 3rd – 8th Respondents have not claimed any relief against him, has not been appealed against by the Appellant, which made that decision binding and deemed conceded. He called in aid the cases of Brittania U (nig) Ltd vs. Seplat Petroleum Development Co. Ltd (2016) 4 NWLR (Pt.1503) 541 at 591, Agbaje vs. INEC (2016) 4 NWLR (Pt.1501) 151 at 166. Counsel contended that the facts of all the cases cited by the Appellant on breach of right to fair hearing are not similar to the facts of this case and therefore do not apply because a decision is only an authority for what it decides. Okeke vs. Uwaechina(2022) LPELR- 57291(SC), Skye Bank vs. Akinpelu (2010)LPELR-3072 (SC). It was contended that the lower Court did not breach the Appellant’s right to fair hearing as no relief was sought against him by the 3rd – 8th Respondents, hence the lower Court ruled that he is neither a necessary nor desirable party to the suit. Learned counsel cited the cases of Bauchi State Govt vs. Gumau& Anor (2019) LPELR-47061 (CA), Aromire vs. Awoyemi (1972) 1 ALL NLR (Pt.1) 101, Ayorinde vs. Oni (2000) 3 NWLR (Pt.649) 348, and submitted that it is improper to join as co-defendants to an action, persons against whom the plaintiff has no cause of action. Counsel argued that as there is no independent candidate in Nigeria, once a political party is sued, its candidates are automatically sued. He urged the Court to hold that the non-joinder of the Appellant did not breach his right to fair hearing and cannot render the action a nullity, relying on Akpoti vs. INEC (2022) 9 NWLR (Pt.1836) 403 at 420- 421.
On the 2nd issue, like the 1st, learned counsel contended that the issue has a fundamental defect and should be discountenanced and struck out because the finding of the lower Court that the 3rd – 8thRespondents have fulfilled the condition precedent for instituting the action has not been appealed against by the Appellant. He proceeded to argue that the 3rd – 8th Respondents duly exhausted the internal dispute resolution mechanism in the 1st Respondent’s Constitution before instituting the suit. He cited the cases earlier cited by him under issue 1 to submit that a decision is only an authority for what it decides. It was counsel submission that the lower Court has jurisdiction to adjudicate over the suit because of the exhaustion of the internal dispute mechanism of the 1st Respondent by the 3rd – 8th Respondents. He referred to the letters written by them to the National Chairman and The National Vice Chairman, Exhibits FA7 and FA8 at pages 950 – 953 of the Record, but these officers refused to internally resolve the Respondents’ grievances.
On issue 3, similar submission of fundamental defect was made in respect of this Issue as it was done with issues 1 & 2, and the Court was urged to strike out the issue in that the lower Court has made a finding that the 1st Respondent does not sell nomination forms tonon-members, which finding was not appealed against. Learned counsel submitted that the issue of membership of political party is not justiciable, citing Ukachukwu vs PDP (2014) 17 NWLR (Pt.1435) 154, Afogo vs. Nwachi (2017) 11 NWLR (Pt.1545) 147, Anyanwu vs Ogunewe (2014) 8 NWLR (Pt.1410) 437. He argued that the 3rd – 8th Respondents have proved through exhibits that they are members of the 1st Respondent and have the locus standi to challenge the 1st Respondent’s unconstitutional act in Court. Counsel contended that the 1st Respondent has admitted that the 3rd – 8th Respondents are its members through paragraphs 13-18 of its counter-affidavit to the originating summons, and that what is admitted need no proof, Cappa D’ Alberto Ltd vs. Akintilo (2003) LPELR-829 (SC), cited and relied upon. He submitted that by virtue of Article 9.3 of the 1st Respondent’s Constitution, Section 84 (3) of the Electoral Act, 2022 and Section 40 of the 1999 Constitution, the 3rd – 8th Respondents have the right to vote and be voted for into any elective position of the 1st Respondent and therefore have the locus standi to challenge the 1stRespondents’ unconstitutionality of excluding them from participating in the primary election by refusing to sell them nomination form after they paid for it. On the bindingness of Constitution of political parties on its members, reference was made to Gana vs SDP & Ors (2019) LPELR-47153 (SC) to submit that infraction of 1st Respondent’s Constitution is justiciable and the Court have jurisdiction to entertain a suit founded on such infraction. It was argued that having been excluded from participating in the nomination exercise and congresses, the 3rd – 8th Respondents have the locus standi to complain and commence this action against the 1st Respondent.
On Issue 4, learned counsel contended, with reference to some quoted paragraphs of the affidavit in support of the preliminary objection before the lower Court and the counter affidavit filed in opposition, that since issues were joined by the parties in the preliminary objection on locus standi, the lower Court is empowered to make findings in respect to the locus standi of the 3rd – 8th Respondents in the resolution of the preliminary objection. He urged the Court to resolve this issue and the entire appeal against the Appellant by dismissing same.
In response to the submissions in the Brief of Argument of the 3rd – 8th Respondents, the Appellant filed a Reply Brief. On the submission of the 3rd – 8th Respondents that they did not seek any relief against the Appellant, the Court was referred to relief 5 in the originating summons which seeks the setting aside of the primary election that produced the 1st Respondent as Governorship candidate of the 1st Respondent, among other candidates. On the contention of the 3rd – 8th Respondents that they satisfied the internal dispute resolution requirements by writing letters, Appellant’s counsel argued that the purported letters do not satisfy the provisions of Article 21 (B) and (C) which is clear on how complaint is to be brought before the 1st Respondent.
Resolution of the Appeal
Because of the prime and envious position of jurisdiction to adjudication, I will commence the resolution of this appeal with issue 2 formulated by the parties. The issue questions the jurisdiction of the lower Court to entertain the suit when, according to the Appellant, the 3rd – 8th Respondents, who were Plaintiffs before that Court, have not exhausted the internal dispute resolution mechanism of the party as provided for in Article 12 (B) and (C) of the Constitution of the APC. The 3rd – 8th Respondents, on the other hand, maintained that they wrote letters to the National Chairman of the 1st Respondent and the National Vice Chairman, who is also the Chairman of the South-South Zonal Committee of the party, but that these two officers did not resolve the dispute, hence their resort to the Court.
As a threshold issue, the importance of jurisdiction was re-echoed by Okoro, JSC, in Ikpekpe vs. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR-44471 SC), thus:
“The importance of the jurisdiction of a Court cannot be over emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted.”
The fundamental nature of jurisdiction was recently restated by the Apex Court in the case of Yongo & Ors vs. Hanongon & Ors (2022) LPELR- 57282 (SC), per Adamu Jauro, JSC, thus:
“It is settled that jurisdiction is a threshold issue which is fundamental and crucial to adjudication. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. It is crucial because where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are.”
In Utih vs. Onoyivwe (1991) LPELR-3436 (SC), Bello, CJN, graphically painted the picture of jurisdiction in the following words:
“… jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
Bairamian, JSC, stated how jurisdiction can be determined in the celebrated case of Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC) as follows:
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.”
In my considered view, the appropriate starting point in the resolution of this issue is a detour of the Constitution of the 1st Respondent, particularly Article 12 thereof with a view to determining whether the dispute resolution mechanism of the 1st Respondent was/were exhausted by the 3rd – 8th Respondent before they instituted the suit now on appeal. Annexed to the 3rd – 8th Respondents’ affidavit in support of their Originating Summons as exhibit ‘E’ is the Constitution of the All Progressives Congress, which occupies pages 26 – 74 Volume 1 of the Record of Appeal. Article 12 (B) of the said Constitution deals with Disciplinary Procedure while Article 21 (C) covers the right of appeals by aggrieved members. The grouse of the 3rd – 8th Respondents is that they paid for forms to contest the positions of Ward, Local Government, State and National Delegates of the 1st Respondent but they were denied the forms and therefore excluded from the delegates’ election. They were aggrieved. They claimed to have written a letter of complaint to the National Chairman of the party, copy of which was annexed to their affidavit as exhibit ‘D’ at pages 24-25 of the Record. A careful look at Exhibit ‘D’ did not show that it was received by anybody at all as there is totally no evidence of acknowledgment of receipt. In fact, the 1st Respondent denied receiving the said letter. Apart from the purported letter which has no evidence of receipt by the addressee, no other step was taken by the 3rd – 8th Respondents to internally ventilate their grievances with the 1st Respondent. Learned counsel for the 3rd – 8th Respondents claimed at paragraph 5.21 of the Respondents’ Brief of Argument that a letter was also written to the Vice chairman of the 1st Respondent who is also the South-South Zonal Committee Chairman. The proof of delivery annexed to the further affidavit in support of the Originating Summons at pages 433, 433A and 444 of the Record of Appeal did not indicate that any letter was served on the Zonal Chairman. Assuming, however, that the National Chairman was served with the letter of complaint, that did not satisfy the requirement of the provisions of Article 21 (B) & (C) of the Constitution of the 1stRespondent. The complaint of the 3rd – 8th Respondents being against a State Chapter of the Party, the appropriate organ to which the complaint shall be lodged by virtue of Article 21 (B) (vi) (d) is the Zonal Executive Committee, the adjudicatory body of first instance over complaints or allegations from the State Chapter in the Zone. An appeal from the Zonal Executive Committee as an adjudicatory body of first instance shall, by virtue of Article 21 (C) (ix), lie to the National Executive Committee. There is no evidence on the printed Record of the lower Court transmitted to this Court to show that the 3rd – 8th Respondents’ complaints against the Rivers State Chapter of the party was lodged with the South-South Zonal Committee of the party and a further appeal lodged to the National Executive Committee without success, before their recourse to the Court. Having rushed to the Court without ventilating their grievances through the various stages of the internal dispute resolution mechanism of their party, the lower Court was bereft of the requisite jurisdictional competence to adjudicate on the claim of the 3rd – 8th Respondents because:
(1) There is a feature in the case which prevents the Court from exercising its jurisdiction, and
(2) The case was instituted without fulfilment of a condition precedent to the exercise of jurisdiction, which is the non-exhaustion of the internal mechanism for the resolution of intra-party disputes as stipulated in the Constitution of the 1st Respondent.
The suit of the 3rd – 8th Respondents at the lower Court was premature at the time it was filed, consequently, the lower Court was without jurisdiction when it heard and determined the matter. In resolving this jurisdictional issue in favour of the Appellant, I place reliance on the case of Aguma vs. APC (2021) 14 NWLR (Pt.1796)351 (SC), cited by learned counsel for the Appellant, also reported as (2021) LPELR- 55927 (SC).
I will not end the discuss on this issue without drawing attention to an important development in the jurisprudence of pre-election matters as it concerns the authority of APC vs. Ibrahim Umar (2019) LPELR- 47296 (SC), heavily relied upon by the 1st – 6th Respondents to argue that their suit at the lower Court was a pre-election matter. It is correct to say that the case of APC vs. Umar expanded the scope of what constitute pre-election matters as well as the parties who are competent to file same. In that case, the Supreme Court, per Sanusi, JSC, held at pages 15-16 of the E-Report that:
“I think it would be apt to say that the word “election’ means the process of choosing by popular votes, a candidate for political office in a democratic government. See Ojukwu v Obasanjo (2004) 12 NWLR (pt.886) 169, Buhari v Obasanjo (2005) 2 NWLR (pt.910)241. It goes without saying therefore, that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “PRE-election” or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285 (14) of the Constitution 4th Alteration Act 2017.”
The Supreme Court has seen the need to depart and did depart from that decision by whittling down the expanded definition of pre-election matters earlier given by it in APC vs. Umar (supra). The occasion that offered itself for that positive review was the case of PDP vs. Ogwulegbo&Ors, Unreported Judgment of the Supreme Court in Appeal No. SC.CV/471/2022, delivered on 11th April, 2022. The facts of that case had similarity with the facts in the instant appeal. In that case, the Respondents wanted to contest for various party offices in the Appellant’s Ward and Local Government Congresses in Imo State but were denied the sale of nomination forms to enable them contest. They approached the Court seeking, among other reliefs, the nullification of the Congresses. In departing from its decision in APC vs. Umar(supra), the Supreme Court, per Ogunwumiju, JSC, held:
“Rather than the elastic interpretation given to Section 285 (14) in APC vs. Umar, I would prefer a narrower interpretation of the provision which accords more with the letters of the Constitution. The Courts, particularly this Court cannot be an all-comers Court ofa pot pouri of all litigations including the banal, the serious and the impactful. It is very important for the Courts not to assume jurisdiction in respect of intra party disputes. The facts of this case show clearly that it is an intra-party dispute. The cause of action is one in which the trial Court as it rightly held, has no jurisdiction.”
The above position of the Supreme Court was further amplified by the same Court in the case of Osagie &Ors vs. Enoghama & Ors (2022) LPELR-58903 (SC), another Ward Congress dispute, this time around, from Edo State. The Supreme Court decided that the election of Ward delegates is a domestic affair of a political party over which no right of legal action is vested in persons dissatisfied with the exercise. Consequent upon these binding judicial authorities, I hold that the lower Court lacks the requisite jurisdiction to entertain the suit of the 1st – 6th Respondents as it falls squarely within the internal affairs of the 7th Respondent. for which a Court has no jurisdiction.
Notwithstanding the decision just reached on the threshold issue of jurisdiction, I shall proceed to examine the otherissues in the appeal in the event my decision on jurisdiction is found to be wrong, as this Court is a penultimate Court.
Under issue 1, the grouse of the Appellant with the judgment of the lower Court is that far reaching orders affecting his rights and interest were made by the lower Court against him even though he was not a party to the suit. That by making the orders against him without giving him the opportunity to be heard, the lower Court has breached his fundamental right to fair hearing. See Arije vs. Arije (2018) 44193 (SC), Wagbatsoma vs. Federal Republic of Nigeria (2018) LPELR- 43722 (SC). The right to fair hearing is a constitutionally guaranteed right, observance of which gives validity to any legal proceeding. Section 36 (1) of the Constitution of the Federal Republic of Nigeria which encapsulates the right to fair hearing provides:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Fair hearing within the meaning of the above quoted provisions means a trial conducted according to all the legal rules and procedures to ensure that justice is done to the parties.
The true test of whether a trial is conducted fairly is the impression of a reasonable man or an impartial observer who was present at the trial, whether from his observation he will conclude that the Court was fair to all the parties in the proceedings, i.e., that justice has been done. See Amanchukwu vs. F.R.N.(2009) LPELR- 455 (SC); Mpama vs. First Bank of Nigeria Plc (2013) LPELR-19896 (SC); Pam vs. Mohammed (2008) LPELR-2895 (SC).
A party complaining of the breach of his right to fair hearing must be able to show that he has not been accorded a fair opportunity to ventilate his grievances before the Court, and the determination of such complaint depends upon a careful consideration of the facts and circumstances of each case.
In the above restatement of the law on fair hearing, there is heavy emphasis on “party” to the proceedings. In the instant case on appeal, the Appellant was not a party to the proceedings at the lower Court, yet the Court made an order adverse to his rights and interest. That was the basis of his complain of denial of fair hearing as he was not a party to the suit to enable him defend his interest. The Appellant’s contention is that as the Governorship candidate of the 1st Respondent, the order of the trial Court, granting relief 5 claimed by the 3rd – 8th Respondents in a proceeding in which he was not a party, has adversely affected his interest and denied him the right to be heard. In its judgment copied at page 1349 Volume 2 of the Record of Appeal, the lower Court set aside the primary election of the 1st Respondent held in Rivers State on 18th and 19th May, 2022 for the election of the 1st Respondent’s candidates for the offices of Governor of Rivers State, Members of National Assembly and State House of Assembly. This order was made in line with relief 5 claimed by the 3rd – 8th Respondents. From the reliefs claimed by them, the 3rd – 8th Respondents were aware that at the time of filing their action at the lower Court, the Appellant and the other candidates they sought to set aside their nomination have already acquired vested rights to contest the election to the various offices they were nominated for by their political party. Having known this fact, the 3rd – 8th Respondents ought to have joined all the 1st Respondent’s candidates who were elected at the primary election and whose election they want to set aside, as parties to the suit at the lower Court, since reliefs were sought against them. It is curious that the candidates of the 1st Respondent against whom reliefs were sought by the 3rd – 8th Respondents were not made parties to the suit to enable them defend the suit and demonstrate why the reliefs sought against them should not be granted. To worsen matters, the learned trial Judge aided the 3rd – 8th Respondents in their desire to shut out the winners of the primary election from the suit, when in his judgment, reproduced at pages 1312 – 1314 of the record of appeal he held that the Governorship National and State Assembly candidates of the 1st Respondent are not necessary, relevant, desirable or proper parties in the suit because no relief was claimed against them. With that ruling, the lower Court proceeded to set aside the election of these same candidates he held to be unnecessary, undesirable, irrelevant and improper parties that he refused to allow their joinder as parties to the suit.
In our adversary system of adjudication, the rule has evolved over time that the Court cannot make a finding that will be prejudicial against a person that is neither before it nor party to the case and in the same vein, cannot grant a relief against such a non-party. In other words, a Court has no power to make an order that will affect the interest of any person or persons who is or are not parties to the case or dispute before it. Where such an order is made it cannot be binding against the person who is not a party to the action. See Kokoro-Owo & Ors vs. Lagos State Government & Ors (2001) LPELR-1699 (SC), Uwazuruike & Ors vs. A.G. Federation (2013) LPELR-20392 (SC) at 32-33, Alioke vs. Oye&ors(2018) LPELR-45153 (SC) at 16, Oyeyemi vs. Owoeye (2017) LPELR-41903 (SC), Ndoma-Egba vs. Chukwuogor (2004) LPELR-1974(SC). The general principle of law is that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him.
The argument of learned counsel to the 3rd – 8th Respondents that in the absence of independent candidates in Nigeria, once a political party is sued, its candidates are automatically sued, is pedestrian and an insult to the law. A political party is an Association of persons in pursuit of political power. That Association apart, individual members of a political party have their distinct legal personalities and distinct personal interests within the wider political Association. A political party cannot be the soul and conscience of all its members. A Governorship candidate of a political party is distinct from his political party, he is not an appendage or privy or even servant of the party. I jettison and discountenance that argument for being in confrontation with the law.
To say that the Appellant was adversely affected by the order of the lower Court in a suit in which he was not a party, is an understatement. The Appellant was nominated by his party as its flag bearer for the 2023 Governorship election in Rivers State and his name submitted to the Independent National Electoral Commission. The lower Court set aside the primary election that led to the emergence of the Appellant as the Governorship candidate of the 1st Respondent, after refusing to allow his joinder as a party to the suit on the ground that he was not a necessary or desirable party. The right and interest of the Appellant has now been curtailed by the lower Court’s order in a proceeding in which he was denied participation. With the order made granting relief 5 claimed by the 3rd – 8th Respondents, the lower Court has breached the Appellant’s right to fair hearing for making an order adverse to his interest without affording him a hearing. I so hold. The law is trite that any decision reached where there has been a denial of fair hearing cannot stand. I resolve Issue 1 in favour of the Appellant.
The challenge to the locus standi of the 3rd – 8th Respondents to institute the action before the lower Court, forms the nucleus of issue 3. This is another jurisdictional issue. The plank of the argument of the Appellant on this issue is that the 3rd – 8th Respondents, not being members of the 1st Respondent and having not participated in the primary election conducted by the 1st Respondent as aspirants, lack the locus standi to complain about the nomination of the Appellant. Learned counsel faulted the lower Court for proceeding with the case after finding at page 1299 of the Record that the 3rd – 8th Respondents did not participate in the primary election because they were denied nomination forms. Proceeding on the assumption that the 3rd – 8th Respondents are members of the 1st Respondent, in view of their non-participation in the primary election that produced the Appellant as Governorship candidate of the 1st Respondent, either as delegates or aspirants, do they possess the necessary locus standi to institute the suit at the lower Court?
Locus standi is the legal capacity to institute legal proceedings before a Court. It is the standing to sue or the competence of a party to sue. See Taiwo vs. Adegboro (2011) 11 NWLR (Pt.1159) 562. The term was also defined by Kekere-Ekun, JSC, in B.B. Apugo & Sons Ltd vs. OHMB (2016) LPELR-40598 (SC), as follows:
“Locus standi is the legal right of a party to an action to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.”
Thus, for a person to approach a Court, he must be able to show that his civil rights and obligations have been or are in danger of being violated or infringed upon. Locus standi is a condition precedent for proper initiation of any judicial proceeding and therefore goes to the competence of or jurisdiction of the Court to entertain the action. Therefore, where a claimant has no locus standi, his action will be incompetent and the Court will have no jurisdiction to hear and adjudicate on the action. See Pam vs. Mohammed (2008) LPELR-2895 (SC), Opobiyi & Anor vs. Muniru (2011) LPELR-8232 (SC), Bakare & Ors vs. Ajose- Adeogun & Ors (2014) LPELR-22013, Daniel vs. INEC (2015) LPELR-24566 (SC).
I need to also stress that an objection to the locus standi of a claimant in an action is automatically an objection to the jurisdiction of the Court before which the action is pending.
As an unquestionable threshold issue which goes to the capacity of a party to institute legal proceedings and a fortiori, the jurisdiction of the Court, the challenge to a party’s locus standi can be taken at any time during the proceedings or even for the first time on appeal to this Court, without leave.
In an election related matter such as the instant one, the locus standi of a party is donated by a statute not under the common law. In this wise, the locus standi of the 3rd – 8th Respondents to institute the matter at the lower Court is donated either by the Constitution of the Federal Republic of Nigeria, 1999 (as altered) or by the Electoral Act, 2022. In order for the Courts to be insulated from the sphere of politics and determination of political questions, the locus standi of political party members to institute proceedings in Court over party affairs is majorly restricted, as issues of nomination and sponsorship of candidates by a political party for any election is within the exclusive preserve of the political party and the Courts have no jurisdiction to interfere therein. The essence of this rule is to restrict access to the Courts on purely political questions arising from the internal affairs of political parties, except within the narrow compass of Section 84 (14) of the Electoral Act, 2022, which provides:
“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 for redress.”
This provision is plain and self-explanatory. It provides a window to an aspirant to challenge the conduct of primary election by his political party if, in his opinion, the provisions of the Electoral Act and Rules and Guidelines of his political party have not been complied with. The emphasis here is on the word ‘aspirant’, not a delegate, a proposed delegate or any other party member. Only an aspirant, that is, a candidate at the primary election, possess the locus standi to challenge the conduct of the primary election of his political party or the nomination of a candidate made sequel to the primary election. For a person to qualify or have the locus to institute an action arising from the nomination of a party’s candidature for an election, he must have participated in the nomination exercise as an aspirant and failed, otherwise he would be regarded as a meddlesome interloper and busybody. See Daniel vs INEC (supra), PDP vs. Amin (2019) LPELR-48096 (CA), Ogba vs. Ifeanyi & Ors (2022) LPELR-58653 (CA), Kambaza & Ors vs. APC & Ors. (2020) LPELR-50305 (CA), Muyiwa vs. Muhammed & Ors (2021) LPELR-56446 (CA). The 3rd – 8th Respondents have admitted, and the lower court has also made a finding which has not been challenged, that they did not participate in the congresses that produced delegates who voted at the primary election, which they asked the lower court to nullify. Even if the 3rd – 8th Respondents were elected delegates and they participated at the primary election as voters, they cannot challenge the primary election that produced the 1st Respondent’s candidates for want of requisite standing, having not participated in the primaries as aspirants. The lower Court was therefore wrong in clothing the 3rd – 8th Respondents with locus standi in a matter in which they ought to be left ‘naked’, bereft of the standing to sue. In view of my legal analysis above, I resolve the issue of locus standi in of the Appellant and against the 3rd – 8th Respondents.
On issue 4, this court and the Apex Court have always admonished the lower Courts not to get into the merits of a case at the interlocutory stage as that would lead to prejudging the substantive case before its time to do so, the consequence of which, the adverse party may be denied fair hearing, leading to failure of justice. See Agwu & Ors vs. Julius Berger Nig. Plc (2019) LPELR-47625 (SC), CIL Risk & Asset Management Ltd vs. Ekiti State Government & Ors (2020) LPELR-49565 (SC), Otti & Anor vs. Ogah & Ors (2017) LPELR-41986 (SC). My Lords, in the Instant appeal, the learned trial Judge did something strange and out of the ordinary course of events in Judicial adjudication. As is the usual practice in matters commenced by way of Originating Summons, the trial Judge heard the preliminary objection of the 1st Respondent along with the substantive matter. What the law expects him to do at the end of the hearing was to decide the preliminary objection at the commencement of his judgment before going into the determination of the questions raised in the substantive action.
The determination of the preliminary objection must end with an order either upholding the objection and striking out or dismissing the suit in limine, or an order dismissing the preliminary objection and proceeding with the substantive suit. Rather than take one of the two courses of action open to him, the learned trial Judge, in an unprecedented speed, chose to grant all the prayers sought by the 3rd – 8th Respondents at the end of his ruling on the preliminary objection without going into the merit of the case. I was perplexed by this novel approach when I read the concluding part of the judgment of the lower Court at page 1349 Volume 2 of the Record of Appeal where the trial Judge ended his judgment with this statement: “It is important to state here that based on the reasons given above this Court cannot proceed to determine this suit on merits.” This statement was made after all the reliefs claimed by the 3rd – 8th Respondents were granted. Since the lower Court did not proceed to determine the merits of the case, upon what was the grant of the reliefs claimed predicated? The trial Judge was in serious error when he granted the reliefs of the 3rd – 8th Respondents without going into the merits of the case, as stated by him. On this score, and without much ado, I also resolve the 4th issue in favour of the Appellant.
Having resolved all the Issues in this appeal in favour of the Appellant, the destination of the appeal is now as clear as bright sunny day. The appeal is allowed for being meritorious. I order that the judgment of the Federal High Court, Port Harcourt Judicial Division, in Suit No. FHC/PH/CS/87/2022 delivered on 25th October, 2022, by E.A. Obile, J., be and is hereby set aside. The Appellant is entitled to cost against the 3rd – 8th Respondents which I assess at N500,000.00.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Muhammad Ibrahim Sirajo, JCA. I agree entirely with the reasoning and conclusion reached in allowing the meritorious appeal. From the reliefs claimed by the 3rd – 8th Respondents, particularly relief 5 of the Originating Summons and the order granted by the trial Court setting aside the primaries that produced the Appellant as Governorship candidate of the 1st Respondent, there is no pretension that same would adversely affects the Appellant’s vested rights to contest the forthcoming general elections. Thus the failure to join the Appellant and 1st Respondent to the suit by the trial Judge is nothing but a calculated attempt to shut them out from participating in the general election. A Court cannot under whatever guise, make a finding that will prejudice a person that is neither before it nor party to the case. In the same vein, a Court cannot grant a relief against such non-party.
In the instant case, the order granted that adversely affected the rights and interests of the Appellant in which he was not a party invariably breached his right to fair hearing enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
I also allow the appeal and abide with all the consequential orders including the order as to costs.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have read through the copy of the lead judgment delivered by my learned brother, HON JUSTICE MUHAMMAD IBRAHIM SIRAJO, JCA and found that he rightly resolved all the issues involved in this appeal.
I am in complete agreement that the appeal be resolved in favour of the Appellant and also abide with the order made by my learned brother as to cost.
Appearances:
Cyriacus C. Orlu. For Appellant(s)
Tuduru Ede, SAN, with him, C.W. Jerome, J.N. Onyebuchi, L.G. Jamala and S.C. Wori – for 1st Respondent.
J.J. Aondo, with him, Mathias Ikyav – for 2nd Respondent
S. C. Nwafor, with him, B.W. Georgewill, C.D. Asomeji and W.B. Asaenwi – for 3rd – 8th Respondents. For Respondent(s)
