DR. UMAR ARDO & ANOR v. ADMIRAL MURTALA NYAKO & ORS
(2013)LCN/5975(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2013
CA/YL/15/2012 (CONSOLIDATED)
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
DR. UMAR ARDO – CA/YL/15/2012
AND
ADMIRAL MURTALA NYOKO (RTD) – CA/YL/21/2012
(CONSOLIDATED) Appellant(s)
AND
1. ADMIRAL MURTALA NYAKO (RTD)
2. PEOPLES DEMOCRATIC PARTY – CA/YL/15/2012
3. INDEPENDENT NATIONAL ELECTORAL COMMISSON
AND
1. DR. UMAR ARDO
2. PEOPLES DEMOCRATIC PARTY – CA/YL/21/2012
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
(CONSOLIDATED) Respondent(s)
RATIO
CIRCUMSTANCES UPON WHICH A POLITICAL ASPIRANT CAN GO TO COURT TO CHALLENGE THE RESULT OF A PRIMARY ELECTION
I cannot but agree more with the position taken by the learned trial Judge for the reasons I shall state anon.
Section 87(9) of the Electoral Act which interpretation was the bone of contention in the lower Court as it is now in this Appeal, provides that:-
“Notwithstanding the provisions of the Act or rules of the political Party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, or FCT, for redress.”
The Supreme Court in a number of recently decided cases has settled beyond any peradventure the purport of the above section of the Electoral Act on the circumstances under which an aspirant can go to Court to challenge the result of primary election as well as the conferment of jurisdictional competence on the Court to entertain the suit.
In Lado v. CPC (2012) ALL FWLR at page 263 paragraphs G – H to 624 paragraph A; Onnoghen, JSC, commenting on the provisions of the Electoral Act above highlighted, reiterated the position of defunct Electoral Laws on the impotence of the Courts to choose, select or nominate candidates for political parties even in the face of breaches of the extant electoral Act 2010, the Party’s Constitution and Guidelines for the conduct of primaries and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the course of such exercise as an aspirant cannot invoke the jurisdiction of either the Federal High Court or High Court of the State as provided for under section 87(10) (now section 87 (9)), unless such an aggrieved aspirant brings himself within the ambit of section 87(4)(b)(c) of the Electoral Act 2010 (as amended). Hear His Lordship:
“The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended), supra. It is only if he can come within the provisions of those subsections that his complaint can be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides with the political party to exercise.” PER AGUBE, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Finally, on the issue of jurisdiction, it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. It has also been held that it is the claim of the Plaintiff, in this case, it is the Statement of Claim and the Reliefs Sought by the Appellant that determine the jurisdiction of the Court. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B – C and Elabanjo v. Dawodu (2005) 15 NWLR (pt. 1001) 76. See further the land mark case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 where it was held that a Court is competent when:
(a) 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.
(b)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
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Emeka v. Okadigbo & 4 Ors. (2012) 18 NWLR 55 at 83 paras. D – F; Okoya v. Santili (1990) 2 NWLR (pt: 131) 172; Osafile v. Odi (1) (1990) 3 NWLR (pt.137) 130 and Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296.
In the Emeka v. Okadigbo case (supra) Fabiyi, JSC; at page 104 paragraphs F – H, had cause to pronounce on the issue of jurisdiction of the Court to entertain the Appellant’s suit reiterated the position he took in Chief Ikechi Emenike v. PDP & 3 Ors. (2012) 12 NWLR (pt. 1315) 556; that in matters relating to primary election of the Peoples Democratic Party on the nomination of a candidate for election as in this case, the Court ordinarily has no jurisdiction to dabble into same as it is the prerogative of the party to take care of it as was decided in Onuoha v. Okafor (1983) NSCC 494; (1933) 2 SCNLR 244. The learned Law Lord added the rider:
“The Court is however, vested with a very limited and thin jurisdiction which can be ignited under the provision of section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act, 2010 (as amended). The section imbues the National Executive Committee of the party with the vires to organise and conduct the primaries. A candidate who took part in such a primary election can complain before the Court. PER AGUBE, J.C.A.
PRINCIPLES THAT GUIDE THE COURT ON THE INTERPRETATION OF CONSTITUTIONAL PROVISIONS
See also Obaseki, J.S.C in Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 7 (1982) 3 NCLR 1; ably cited that the learned Senior Advocate for the Appellant where in line with the dictum above cited, he laid down six principles that should guide a judge in the interpretation or construction of constitutional provisions thus:
1. Effect should be given to every word;
2. A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the con;
3. The language of the Constitution where clear and unambiguous must be given its plain and evident meaning;
4. A constitutional provision should not be construed so as to defeat its evident purpose;
5. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions; and
6. Words of the Constitution are therefore not to be read with stultifying narrowness. See further Aqua Ltd. v. Ondo State Sports Council (1985) 4 NWLR (pt. 91) 622; Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517 and Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506. PER AGUBE, J.C.A
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): These Appeal and Cross-Appeal are fall-outs of the Gubernatorial Primary Election of the Peoples Democratic Party (P.D.P) conducted in Adamawa State on the 24th day of October, 2011 wherein the 1st Respondent/Cross-Appellant was nominated the flag bearer of the Party for the 2012 Gubernatorial Election in Adamawa State, of which he was subsequently declared and returned winner. The Petition to the Election Tribunal and subsequent appeals to this Court and the Supreme Court against his declaration and return had since been determined in favour of the 1st Respondent/Cross-Appellant, yet the dispute arising from the conduct of that Primary is still haunting the members of the 2nd Respondent/Cross-Respondent and the State in general.
The facts leading to the main Appeal which I shall herein consider first are that the Appellant who claimed to be a bonafide member of the Peoples Democratic Party (2nd Respondent/Cross-Respondent in Adamawa State and a holder of PDP Membership Card No. 7229215 was according to him an aspirant for nomination as candidate of the 2nd Defendant/Respondent/Cross-Respondent who sought nomination along with the 1st Respondent/Cross-Appellant at the Gubernatorial Election in Adamawa State. The 2nd Respondent/Cross-Respondent is a Registered Political in Nigeria whereas the 3rd Respondent/Cross-Respondent is the body constitutionally charged with the responsibility of ensuring that Political Parties conform with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the Electoral Act, 2010; the Constitution of the Political Party as well as Rules and Guidelines for the conduct of her Party Primaries.
The Appellant claimed that on the 14th of October, 2011, he completed and submitted to the 2nd Respondent/Cross-Respondent the Expression of Interest Form Code PD002/G for nomination as a candidate of the 2nd Respondent in the 2012 Gubernatorial Election in Adamawa State along with the 1st Respondent/Cross-Appellant. It is his further case that on the 12th day of October, 2011, the 2nd Respondent published at page 53 of This Day Newspaper the timetable for the conduct of the Gubernatorial Primary Election in Adamawa State details which he set down in Paragraph 8 of his Statement of Claim. He on the same day (14th October, 2011), completed and submitted the Nomination Form Code PD003/G for nomination as a candidate of the 2nd Respondent for the 2012 Gubernatorial Election in Adamawa State.
On the 17th day of October, 2011, the Gubernatorial Screening Committee of the Party screened and cleared him to participate in the Gubernatorial Primary for the nomination of the Candidate of the 2nd Respondent for the 2012 Gubernatorial Election in Adamawa State. He alleged that the election of three (3) Wards Ad-Hoc Delegates in accordance with Paragraphs 2 and 3 Part 1 of the Electoral Guidelines for the Peoples Democratic Party Primary Election 2010 is mandatory and condition precedent for the conduct of valid Gubernatorial Primary Election under Part IV of the Guidelines. Furthermore, by virtue of the Guidelines, all card carrying members of the 2nd Defendant are qualified to vote and be voted for at the Special Ward Congress to elect the three (3) Ad-Hoc Delegates. The Appellant also claimed that the Adamawa State Chapter of the 2nd Respondent carried out a Membership Revalidation Exercise between September and October, 2011 and he (Appellant) received reports from his Director of Mobilization, Hon. Henry Kangling that while carrying out the exercise, several of his known supporters, without any cogent and verifiable reason, were refused membership revalidation.
The Appellant alleged that he personally investigated the complaint from his supporters and found same to be true as the slogan for the membership revalidation was “Ba’a governor biu!!” meaning that there cannot be two governors. Consequent upon this development the Appellant claimed that on the 19th of September, 2011, a letter of complaint was submitted to the National Secretariat of the 2nd Respondent against the conduct of the Revalidation Exercise. Apart from the above complaint, the Appellant alleged that he also received report from the said Honourable Kangling that the Adamawa State Chapter of the 2nd Defendant refused to issue to all his known supporters Delegates Nomination Forms to contest election at the Special Ward Congress to elect the three (3) Ad-Hoc delegates.
It was also his case that he took up the matter immediately with the Adamawa State Chapter of the 2nd Respondent and the National Secretariat of the Party but he was dribbled and tossed around to and from Yola -Abuja-Yola chasing and looking for Delegates Nomination Forms which he and his supporters never assessed. When all efforts to obtain the Delegates Nomination Forms for his supporters including attempts to meet with the Acting National Chairman of the 2nd Defendant/Respondent failed, he left a handwritten note with the Secretary to the Ag. National Chairman of the 2nd Respondent to report his frustration and the inability of his supporters to obtain Delegates Nomination Forms but neither the National Secretariat nor the Adamawa Chapter of the 2nd Defendant/Respondent cared or remedied the wrongs complained of (see paragraphs 1 – 23 of the Appellant’s Statement of Claim).
The Appellant averred particularly in paragraphs 24 – 38 of his Statement of Claim that on the 19th day of October, 2011 the Organising Secretary of the 2nd Defendant/Respondent in Adamawa State Mr. Myambochong Jinde briefed the media that the Special Ward Congress of the 2nd Respondent in Adamawa State had been conducted as mandated them by the National Secretariat of the 2nd Respondent which press briefing was widely published the following day being 20th day of October, 2011; in the Leadership Newspaper and The Guardian Newspaper of that 20th of October, 2011 amongst others. This publication by Mr. Jinde caused panic amongst his (Appellant’s) supporters throughout the State who were dissatisfied with their exclusion from the Special Congress.
To avoid breakdown of law and order the Appellant claimed that he issued a press Statement on the 19th of October, 2011 to explain to his supporters that the Ward Congress purported to have been conducted by the Executive of Adamawa State Chapter of the Party was invalid by reason of the absence of the National Electoral panel of the 2nd Defendant/Respondent to conduct the Ward Congress. Following the Press briefing which was broadcast on NTA Yola, Radio Gotel, TV Gotel and Fombina Radio throughout the State, the National Secretariat of the 2nd Respondent issued a Press Statement signed by National Publicity Secretary Professor Rufai Alkali, announcing the shift in date of the Special Ward Congress from 19th day of October, 2011 to the 20th October, 2011.
On the 20th day of October, 2011 while the Appellant was held up in Abuja, he was informed by Hon. Kangling that members of the National Secretariat of the 2nd Defendant/Respondent Electoral Panel were in Adamawa State and he (Appellant) detailed the said personal Aide (Abdulsalam Adamu) to proceed to the State Secretariat of the 2nd Respondent and represent him at the meeting (if any) to discuss the holding of the Special Ward Congress and also to obviate Appellant’s being taken unawares because of the antecedents of the Adamawa Chapter of the 2nd Respondent during the Revalidation of Membership Exercise.
The Appellant asserted that Hon. Kangling and Abdulsalam confirmed the arrival of the members of the Electoral Panel at the State Secretariat of the 2nd Respondent and they were not only denied entry to meet with the Panel but were violently attacked by the sponsored thugs of the 1st Respondent and Adamawa State Chapter of the 2nd Defendant led by Alhaji Aliyu Bakari. The Appellant claimed that he directed a written complaint of the incident to the Commissioner of Police, Adamawa State which letter was copied to the State Security Service (SSS) and other Security Agencies in the State; the visiting Electoral Panel and the Acting National Chairman of the 2nd Respondent.
In spite of the foregoing and directive of the National Secretariat of the 2nd Respondent on the new date of the Special Ward Congress, the Ward Congress, did not hold and till date he has not been invited by the Electoral Panel and did not meet and discuss with any member of the Panel. Moreover, till date neither he nor any member of his Campaign Organization has met with any member of the Panel and there is no notice to him or the said Campaign Organisation about the Special Ward Congress.
The Appellant alleged further that at about 7 p.m. on the 21st day of October, 2011, he submitted a letter of complaint to the Wards Congress Appeal Panel and that the Special Ward Congress purported to have been conducted on the 21st October, 2011 was conducted without notice to him, as he was entitled to as an aspirant, neither was his Campaign Organisation nor any of his supporters. According to him, he was deliberately and effectively excluded in the entire process for the election of the three (3) Ad-Hoc Delegates of the 2nd Defendant that constituted the Electoral College to elect the Candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State.
In his view, at the trial he would contend that the meeting and resolution(s) to shift the date of the Special Ward Congress from 20th October, 2011 to 21st October, 2011, is invalid and incurably defective and further that the improper shift of the date of the Special Ward Congress, amongst other reasons, occasioned substantial miscarriage of justice against him, as an aspirant, and his supporters and it conferred undue advantage on the 1st Respondent in the Gubernatorial Primary Election of the 2nd Respondent held on Monday, 24th day of October, 2011 in Yola, Adamawa State. He would also contend that the list of the three (3) Ad-Hoc Ward Delegates from 226 Wards in the State which was used at the Gubernatorial Primary election of the 2nd Defendant held on Monday, 24th day of October, 2011 is not the result of a validly conducted Special Ward Congress in accordance with the Constitution of the 2nd Defendant and the Guidelines.
According to him, the Ward Ad-Hoc Delegates constitute majority of the Delegates that voted at the Gubernatorial Primary of the 2nd Respondent held in Yola, Adamawa State on 24th day of October, 2011 which purported to elect the 1st Respondent as the Candidate of the 2nd Respondent for the 2012 Gubernatorial Election in Adamawa State and that at the trial he would contend that the provision of the Guidelines on the procedure for electing Ad-Hoc Delegates is sacrosanct and put in place to ensure that the Candidate of the 2nd Respondent in the Gubernatorial election enjoys the acceptability of the electorates at the grass-root. He would at the trial have relied on depositions of the Director of Mobilization of his Campaign Organisation, deposition of Campaign Coordinators in the 21 Local Government Areas in the State and members of his Campaign Organisation.
The gravamen of his case in the Court below as contained in Paragraph 47 of the Statement of Claim was therefore that the Gubernatorial Primary of the 2nd Defendant held in Yola, Adamawa State on Monday, 24th October, 2011 wherein the 1st Respondent was nominated the Candidate of the 2nd Respondent in the 2012 Gubernatorial election in Adamawa State is invalid and void by reason of the following:-
a. The discriminatory membership revalidation exercise carried out by the Adamawa State Chapter of the 2nd Defendant in October 2011 in which known supporters of the Plaintiff were excluded;
b. The refusal to issue and/or sell Delegate Nomination Forms of the 2nd Defendant to known supporters of the Plaintiff thereby denying them opportunity to be elected Ad-Hoc Delegates to participate in the nomination of the candidate of the 2nd Defendant in the 2012 Gubernatorial election in Adamawa State at the Gubernatorial Primary held in Yola, Adamawa State on Monday, 24th day of October, 2011.
c. Lack of valid notice to the Plaintiff, as on aspirant, or to his Campaign Organisation or supporters of the date of the Ward Congress of the 2nd Defendant purported to have held on the 21st day of October, 2011.
The Appellant therefore filed this suit on the 2nd day of November, 2011 at the Federal High Court, Yola seeking the following reliefs:
“1. A DECLARATION that the procedure adopted by the 2nd Defendant for the nomination of the 1st Defendant as the Candidate of the Peoples Democratic Party for the 2012 Gubernatorial election in Adamawa State is in breach of:
a. The Plaintiff’s constitutional right to fair hearing;
b. Sections 222 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and
c. Paragraphs 2 and 3 of Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party made pursuant to enabling powers in section 12.72(j) and 17.1 and 2 of the Constitution of the Peoples Democratic Party.
“2. A DECLARATION that the breach of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the Constitution of the Peoples Democratic Party (as amended); and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party renders the Gubernatorial Primary of the 2nd Defendant in Adamawa State held in Yola, wherein the 1st Defendant was nominated the Candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State invalid and void.
“3. A DECLARATION that the procedure adopted by the 2nd Defendant in the conduct of the Special Ward Congress to elect the Ad-Hoc Delegates that participated in the Gubernatorial Primary of the 2nd Defendant in Adamawa State on Monday, 24 day of October 2011 denied the Plaintiff of his right to be nominated the Candidate of the Peoples Democratic Party in the 2012 Gubernatorial election in Adamawa State.
“4. A DECLRATION that there is no validly nominated Candidate of the Peoples Democratic Party for the 2012 Gubernatorial election in Adamawa State.
“5. AN ORDER restraining the 3rd Defendant from using, and/or acting on the result declared by the 2nd Defendant at its Gubernatorial Primary held in Yola, Adamawa State on Monday, 24th day of October 2011 wherein the 1st Defendant was nominated the Candidate of the 2nd Defendant in the 2012 Gubernatorial election in Adamawa State.
“6. AN ORDER directing the 2nd Defendant to forthwith conduct fresh Gubernatorial Primary for the nomination of its Candidate for the 2012 Gubernatorial election in Adamawa State in accordance with the constitution of the Federal Republic of Nigeria, 1999 (as amended); the Constitution of the Peoples Democratic Party (as amended); and the Electoral Guidelines for Primary Election 2010 of the Peoples Democratic Party.”
Upon being served with the Appellant’s originating processes, the 1st Respondent filed a Notice of Preliminary Objection to the suit on the following Nine (9) Grounds that:
“1. Under section 87(9) and (10) of the Electoral Act, 2010, the jurisdiction of the Court can only be invoked to challenge the election or nomination of a person as a candidate for election where the political party fails to comply with the provisions of the Act and party Guidelines in the conduct of its primary.
“2. The Plaintiff in this suit is not contending that the 2nd Defendant failed or refused to comply with the provisions of the Electoral Act, 2010 and the 2nd Defendant’s Guidelines in the conduct of its Gubernatorial Primary election on the 24th October, 2011.
“3. The circumstances upon which the selection or nomination of a Gubernatorial Candidate for election can be challenged in the Court are not present in this case, in that the complaints of the Plaintiff are only in respect of matters alleged to have occurred prior to the Gubernatorial Primary election or nomination as 2nd Defendant’s gubernatorial candidate.
“4. The complaints or issues in this case fall within the internal/domestic affairs of a political party over which the Court cannot interfere.
“5. The suit does not disclose any reasonable cause of action against the Defendants.
“6. The Honourable Court has no jurisdiction to entertain the action in that the plaintiff failed to comply with the provisions of the Constitution of the Peoples Democratic Party, 2009 as amended and the Electoral Guidelines for primary elections 2010 of the Peoples Democratic Party, having not exhausted the internal party machinery for the resolution of party dispute arising from primary elections.
“7. A condition precedent to the exercise of jurisdiction has not been fulfilled in that the Plaintiff did not lodge any appeal against the election and nomination of the 1st Defendant to the Gubernatorial Electoral Appeal Panel of the 2nd Defendant.
“8. The case of the Plaintiff is fraught with irreconcilable contradictions and inconsistencies.
“9. This suit is incompetent and the Court lacks jurisdiction to determine same.”
In his written address, in support of the Preliminary Objection, learned Counsel to the 1st Respondent raised the following five (5) issues for determination:
“1. Whether the circumstances upon which the jurisdiction of this Court can be invoked to challenge the selection or nomination of a candidate for an election by a political party exist in this case.
“2. Whether the circumstances or issues upon which this suit is predicated do not fall within the domestic/internal affairs of the 2nd Defendant and if they do, whether this Court can interfere in such affairs.
“3. Whether the condition precedent for the exercise of jurisdiction has been fulfilled in this suit.
“4. Whether a reasonable cause of action has been disclosed in this suit.
“5. Finally, whether this suit is competent and if not whether the Court has jurisdiction to entertain it”.
The Appellant adopted the five (5) issues for determination as raised by the 1st Respondent and added the following one issue for determination:
“Whether having regard to the judicial powers vested in the Federal High Court by the various provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended); the Electoral Guidelines for Primary Election, 2010 of the Peoples Democratic Party and the Constitution of the Party can operate to limit the judicial powers of this Honourable Court to enforce constitutional rights of the Plaintiff?”
In the Ruling delivered on the 20th day of January, 2012, the learned trial Judge upheld the 1st Respondent’s Preliminary Objection on the ground that the Court lacked jurisdiction to entertain the Appellant’s claim and accordingly struck out the suit. Dissatisfied with the Ruling, the Appellant obtained the leave of the learned trial Judge, on the 14th day of February, 2012 to appeal on grounds of facts or mixed law and facts and subsequently filed his Notice of Appeal with three (3) Grounds as contained in pages 859 to 872 of Volume II of the Record of Appeal. The 1st Respondent was also dissatisfied with and cross-appealed against parts of the decisions in the Ruling of the learned trial Judge. Following the transmission of the Record of Appeal to this Honourable Court; the learned Counsel for the respective parties exchanged Briefs of Argument and before the adoption of the Briefs on the 28th day of November, 2012, the Appeal and Cross-Appeal were consolidated upon the Application of the learned Counsel.
It would be recalled that the learned Senior Counsel for the Appellant Oladipo Aigbedo Okpeseyi Esq., SAN, with him Sylvester Imahanobe Esq. and Harrison Anachuna Esq. who settled the Appellant’s Brief distilled three Issues for determination couched as follows:-
“1. Whether the learned trial Judge was not in error when he held that the provisions of subsection (9) and (10) of section 87 of the Electoral Act, 2010 have not made provision to confer jurisdiction on the Court in respect of complaint on matters that occurred before the conduct of primaries?
“2. Whether having raised suo motu the Issue of the participation of the Appellant in the primary election conducted on the 24th day of October, 2011 to nominate the candidate of the 2nd Respondent in 2012 Governorship election in Adamawa State, the learned trial Judge was not in error in failing to invite the parties to address him on the issue before reaching a decision?
“3. Whether the learned trial Judge was not in error in construing the provisions of Section 31 (1) of the Electoral Act, 2010 (as amended) as limitation time within which the Court can nullify the result of the primary election of the 2nd Appellant held on the 24th day of October, 2017 to nominate the candidate for the 2012 Governorship Election in Adamawa State.”
On the other hand, in the Brief settled by Ayo Akam, Esq. of Kanu Agabi & Associates for the 1st Respondent, the learned Counsel also formulated the following three issues as calling for determination:
“1. Whether the circumstances upon which the jurisdiction of the Federal High Court can be invoked were present in the suit and if not whether the Court below was right when it held that the complaints of the Appellant were not envisaged by the provisions of Section 87(9) (10) of the Electoral Act, 2010 (Ground 1)
“2. Whether the decision of the Court below that a person who has not shown that he participated in on election as an aspirant can be heard to complain on the conduct or outcome of the election and the finding that the process filed by the Appellant do not show that the Appellant participated in the primary election occasioned a miscarriage of justice? (Ground 2).
“3. Whether a Court can make on order in vein and, if it cannot, whether the Court below was in error when relying on the provisions of Section 31(1) of the Electoral Act, 2010 it held that it lacked the jurisdiction to entertain the suit. (Ground 3)”.
ARGUMENT OF LEARNED COUNSEL
In the determination of this Appeal, I shall adopt the three Issues formulated by the learned Senior Counsel for the Appellant which to me are more appropriate to the case fought by the parties in the lower Court but in so doing, the Issues formulated by the Learned Counsel to the 1st Respondent shall be subsumed within the Appellant’s Issues.
ISSUE NUMBER ONE (1) OF THE APPELLANT
WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN ERROR WHEN HE HELD THAT THE PROVISIONS OF SUBSECTION (9) AND (10) OF SECTION 87 OF THE ELECTORAL ACT, 2010 HAVE NOT MADE PROVISION TO CONFER JURISDICTION ON THE COURT IN RESPECT OF COMPLAINT ON MATTERS THAT OCCURRED BEFORE THE CONDUCT OF PRIMARIES?
Arguing this first Issue, the learned Senior Counsel for the Appellant pointed out that the issue is on the construction of the clear and unambiguous words used in sections 87 (9) and (10) of the Electoral Act, 2010 (as amended) and that being an issue of law, we should construe the wordings of the Section so as to give effect to the intendment of the Law maker and achieve the purpose of the Act. The provisions of the Section of the Act in question were reproduced to urge us to determine whether the law maker distinguished between aspirants’ complaints against action or inactions of a Political Party which are alleged to have occurred before or in conducting party primary which question he answered in the negative submitting that Section 87(9) of the Electoral Act did not intend to distinguish between complaints of actions and inactions that occurred before or in conducting Primary Election.
The learned Counsel for the Appellant conceded that the construction of Section 87(9) of the Act depends on the facts of each case and in respect of this case subsection 9 of Section 87 should be construed in accordance with the complaints of the Appellant as summarized in paragraph 47 of his Statement of claim at page 15 of the Records which is that the 2nd Respondent failed to comply with the provisions of the Act, the Constitution of the 2nd Respondent and Guidelines as well as the 1999 Constitution in the conduct of the Ward Congress purportedly held on the 24th of October, 2011 in Adamawa State to elect the three Ad-hoc Ward Delegates to participate in the Gubernatorial Primary election in Adamawa State.
He alluded to the complaint about the absence of internal democracy in the conduct of primary elections for the nomination of candidates of political parties to contest elections since 1999 culminating in the comment by Oguntade, JSC in Ugwu v. Ararume (2007) 12 NWLR (pt. 834) 1 at 30 and the amendment of Section 87 of the Electoral Act by the National Assembly. References were made to the provision of Section 87 (7) of the Electoral Act, 2010, the compliance of which the National Executive Committee of the 2nd Respondent in the exercise of powers conferred on it by Articles 12.72 (j) and 17.1 and 2 of the Constitution issued detailed provisions for the procedure for election of the three Ward Ad-hoc Delegates under paragraphs 2 and 3 of Part 1 of the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party (“the Guidelines”).
On the question as to the remedies open to an aspirant who alleges the breach or non-compliance with the procedure set out in the Guidelines, he argued that the aspirant’s remedy lies in proceeding to the Federal High Court for redress as the Guidelines are made pursuant to Section 87(7) of the Act and since by Paragraphs 2 and 3 of Part 1 of the Guidelines, Ward Congresses are the foundations upon which the Special Congress/Party Primary for the nomination of the Gubernatorial Election candidate of the party for General Election is built. He argued further that the need for strict compliance with the conduct of the Ward Congresses i.e. Primary Election is best appreciated if the list of delegates to the Special Congress is analysed. According to him by virtue of Item (ix) of Part II (B) of the Guidelines, there are three delegates per Ward elected at the Ward Congress and there are 226 Wards in Adamawa State, therefore, the Ward Congresses produce 678 delegates which is 90% of the total number of the delegates that vote at the Special State Congress to nominate the Candidate of the 2nd Respondent in the General Election.
It was also the submission of the learned Counsel to the Appellant that the law maker was mindful of the need for elected political office holders to have grass roots acceptability hence they reserved for the elected Ad-hoc Delegates a very high percentage of the number of delegates as reflected in the language of section 87(7) of the Act, therefore to restrict the rights of aspirants of access to Court arising out of non-compliance complaints is an antithesis of the ideals for which the amendment to section 87(7) was enacted. Thus, in learned Counsel’s view the learned trial Judge failed to give due consideration to the mischief for which the amendment in Sections 87(7) and 87(9) of the Act were enacted and rather than confront the mischief the learned trial Judge declined jurisdiction on the ground that the complaints of the Appellants dealt with acts that occurred before the conduct of the Party Primary election by adopting into to the submission of the learned Senior Counsel for the 1st Respondent in paragraph 3.13 of his written Address at page 377 of the Records.
The learned Counsel went on to analyse the purport of the stance of the learned senior Counsel for the 1st Respondent and the learned trial Judge in distinguishing between actions and inactions of the 2nd Respondent which allegedly took place before or “prior” to the conduct of the primary election and those actions or inactions which allegedly took place “in conducting” the primary Election – the former of which the Court lacked the jurisdiction to entertain and the latter which the Court was seised of the jurisdiction to entertain. He reiterated that for a proper construction of subsection 87(9) of the Act, we should consider the fact that the Act was enacted to redress the resentment following the 2003 and 2007 General Elections as political/members of the National Assembly know that electoral malpractices begin from the Ward Congresses to nominate gubernatorial candidates. Accordingly, learned Senior Counsel submitted that the learned trial Judge refused to appreciate that the procedure set out in the Guidelines for conducting Ward Congresses which takes place before the Primary Election is subject to mandatory compliance and the non-compliance is justiciable.
He therefore contended from the foregoing that the distinction created by the learned Counsel for the 1st Respondent and followed by the Court in its Ruling does not arise from the clear and unambiguous wordings of the section and should be rejected. He went on to set out the grammatical structure of section 87(9) of the Act and submitted that the narrow construction of Section 87(9) of the Act as regards the word in the selection or nomination of a candidate in paragraph 3.10 of the learned Senior Advocate for the 1st Respondent’s argument at page 37 of the Records which suggests that the jurisdiction of the Court can only be invoked where in selecting or nominating its candidate a party fails to comply with the provisions of the Act and the Guidelines, is not the correct interpretation of that Section because the italicised words of the subsection cannot be read in isolation but read together.
The learned Counsel for the Appellant maintained that upon the assumption that the italicised words can be read in isolation with other words in the subsection, the words have not rendered non-justiciable the complaints of the Appellant on the acts or inactions of the 2nd-Respondent. Still on this point, it was the further contention of the learned Senior Counsel for the Appellant that the challenge in accepting the positions taken by the Court below and the learned Senior Counsel for the 1st Respondent is that conducting the Primary Election is a one day affair, which is this case is the 24th day of October, 2011 which is not the intendment of the law. The learned Senior Counsel for the Appellant then posed the question that if only complaints that occur during the conduct of primary are justiciable, who are the persons entitled to vote at the primary elections which he answered that it is only Delegates designated as statutory or Ad-Hoc elected at the Ward Congresses of the party held on a particular date.
In his view the conduct of primary election is a process which details are given in paragraphs 2 and 3 of Part 1 of the Guidelines and Section 14 of the Electoral Act confirms that elections have various stages and the conduct of the ward Congresses for the election of the Ad-Hoc Delegates is a condition precedent to conducting a valid primary election. He then criticised the interpretation suggested by the learned Senior Counsel and indeed the Court as being too restrictive, and isolates the various stages involving preparation for the primary election from the primary itself which is akin to beginning a tournament with the finals. The learned Senior Counsel to the Appellant insisted that in enacting subsection 87(7) of the Act, the National Assembly advisedly used the adjective “democratic election of delegates” which interpretation of “democratic” depends on the standard of democratic ideal of the interpreter, in this case the learned trial Judge who has the duty to construe the words of the Act.
According to the learned Senior Counsel for the Appellant while relying on the dictum of Aniagolu, JSC in Ojukwu v. Onwudiwe (1984) 15 N.S.C.C. 172 at 200; the law maker could have omitted the adjective “democratic” from qualifying the “election of delegates” and that the adjective “democratic” was used for special effect which the Courts should give in the interpretation of section 87(7) of the Electoral Act. He argued on the basis of the above that the categories of actions and inactions that are democratic and undemocratic are not closed as each case should be determined on its merit and if the complaints of the Appellants in paragraph 47 of his statement of claim is proved, then the entire process leading to the conduct of the Ward Congresses in Adamawa State to elect the three Ad-hoc Ward Delegates which purportedly held on the 24th October, 2011 were undemocratic.
Still on the restrictive approach of the lower Court to the interpretation of Section 87(9) of the Electoral Act, the learned Senior Counsel was of the view that the situation could have been different if the Appellant was allowed to ventilate his grievances but failed to substantiate his complaints with credible evidence rather than deny the Appellant access to justice on the ground of actions and inactions of the 2nd Respondent that occurred “before” or “prior” to the conduct of the primary election which decision of the Court below occasioned a miscarriage of justice.
The learned Senior Advocate to the Appellant reiterated that the consequence of restrictive interpretation of section 87(9) of the Act is the return to the era when leaders of political parties handpicked candidates to contest elections instead of democratically elected candidates by party delegates as envisaged by Section 87(7) of the Act. We were urged to continue to identify the mischief sought to be remedied by the amendment in subsection 87(9) of the Act and endeavour to prevent all forms of abuses perpetrated in the conduct of primary elections and that the goal should be to stamp out all forms of abuses of the electoral processes notwithstanding the stage at which it occurred.
It was submitted by the learned Counsel on another wicket that the canon of interpretation required for the Electoral Act should be the same as that for 1999 of the Constitution as the Electoral Act is a subsidiary legislation operating side by side with the Constitution. For the above submission he placed reliance on the cases Action Congress v. INEC (2007) 2 NWLR (pt. 1048) 220; A.G. Bendel State v. A. G. Federation (1982) 2 NCLR, 1 and Global Excellence Communications Ltd. v. Donald Duke (2007) 16 NWLR (pt. 1059) 22; to enumerate some of the canons of interpretation that may be applied for the purpose of the Electoral Act which according to him, the learned trial Judge failed to properly apply to give effect to section 87(9) of the Act.
He further observed that by ignoring the clear words of Sections 87(7) and 87(9) of the Act and adopting an artificial distinction between “before or in conducting primary elections,” the learned trial Judge was expanding rather than expounding the law thus occasioning substantial miscarriage of justice and should be reversed. Referring us to the current challenges of the electoral process in Nigeria and the need to compel political parties to comply with their Constitution and Guidelines and the 1999 Constitution in promoting internal democracy as enunciated by Oguntade, JSC in Ugwu v. Ararume (supra); he urged us to hold that the proper approach to the interpretation of the Act is to apply the all inclusive and liberal approach so as to give effect to the principle upon which the Act was established, which in this case is to redress the culture of impunity by political parties in the process of nominating candidates to contest elections and avoid the consequences of growing resentment among the political elite in Nigeria.
Citing finally Buhari & Anor v. Obasanjo and Ors. (2005) 13 NWLR (pt. 941) 1 at 219; Onwuchekwa v. NDIC (2002) 5 NWLR (pt.760) 371 and Federal Republic of Nigeria v. Odua Investment Co. Ltd. (2002) 5 NWLR (pt. 716) 615; the learned Senior Counsel urged us not the read the provision of the Act in question with stultifying narrowness, as suggested by the learned Senior Counsel for the 1st Respondent by denying a litigant access to Court even though a person’s access to Court may be taken or restricted by statute but the language of such statute should be scrutinized by the Courts and should not be extended beyond its least onerous meaning unless there are clear words used to justify such extension. We were then urged to resolve this Issue in favour of the Appellant.
ARGUMENT OF LEARNED COUNSEL FOR THE 1ST RESPONDENT
In his argument of this Issue which is the equivalent of the 1st Respondent’s Issue Number One (1), the learned Counsel for the 1st Respondent noted in the first place that from the Statement of Claim of the Appellant, what he challenged in the lower Court was the selection or nomination of the 1st Respondent as the 2nd Respondent’s Gubernatorial candidate for the 2012 Governorship Election in Adamawa State which had since been conducted on the 4th day of February, 2012, and the 1st Respondent returned as duly elected on the 5th day of February, 2012, having fulfilled all the constitutional requirements and has since been sworn in as the Governor of Adamawa State.
The learned Counsel went further to recall the history of primary elections in the Country and intra party contests relating to selection or nomination of party candidates which were regarded as domestic and internal affairs of the Political parties in respect of which the Courts could not adjudicate prior to the enactment of the Electoral Act, 2010. Abdulkadir v. Mamman (2003) NWLR (pt. 834) 1 at 30, per Adeyemi, JCA, Akpan v. Bob (2010) 17 NWLR (pt. 1223) 421 at 501; per Mohammad JSC; where this Honourable Court, End the Supreme Court buttressed his submission that it is not within the province of the Courts to interfere with the internal disputes of political parties, including disputes arising from the selection and nomination of party candidates for elections into public offices; were cited in this respect.
He observed that there was however a slight change in the position of the law with the enactment of section 87(10) of the Electoral Act on 4th August, 2010, by which Courts now have jurisdiction to entertain matters where the complaint is that any of the provisions of the Electoral Act and the Guidelines of Political Party for election was not complied with in the conduct of the party primary election. He reproduced section 87(10) of the Electoral Act to submit that by that provision, the Courts can now interfere with the selection and nomination of a party’s candidate for election where the party fails to comply with the provisions of the Electoral Act and the party Guidelines.
Thus, the learned Counsel further argued, given the above provision, an aspirant who intends to invoke the jurisdiction of the Court under Section 87(10) of the Electoral Act, 2010, must show that the provisions of the Act and Guidelines of the party were not complied with by the political party and that the non-compliance was in the selection or nomination of the party’s candidate for election that i.e. in the conduct of the party primaries. The learned Counsel then asserted that it follows from the foregoing that the complaints or circumstances that do not establish the breach of the provisions of the Electoral Act and the Party Guidelines of a political party do not come within the category of the complaints for which jurisdiction can be invoked under Section 87(10) of the Electoral Act, 2010.
It was also his contention that a breach of the provisions of the Electoral Act and the Party Guidelines cannot be the basis upon which the jurisdiction of the Court can be invoked under section 87(9) unless the facts before the Court show that the breach was committed in the selection or nomination of a party candidate for election; or in the conduct of its primaries. In the circumstances, the learned Counsel noted, the Appellant’s pleadings ought to have shown two things in order to invoke the jurisdiction of the lower Court:-
1. That the provisions of the Electoral Act and Guidelines of the party was breached by the 2nd Respondent;
2. That the breach occurred in the selection or nomination of the candidate of the party for the Governorship primary Election; but that the Appellant’s complaints were not on acts that amount to a breach of the provisions of the Electoral Act, 2010 and the Guidelines as conceded by the Appellants in paragraphs 3.8 and 3.9 of the Appellant’s Brief of Arguments that the complaints upon which his actions were predicated are summarised in paragraph 47(a) – (c) of his Statement of Claim which was reproduced in the 1st Respondent’s Brief (page 7 paragraph 3.12 to page 8 paragraph 3.13 refer.)
The learned Counsel to the 1st Respondent then proceeded to react to each of the heads of the complaints of the Appellant like Membership Revalidation Exercise, Delegates Nomination Forms, Lack of Valid Date of Special Ward Congress. On the first complaint, it was contended that the complaint of discriminatory revalidation of known supporters of the Appellant as well as their being excluded is unfounded in that there is no provision in the Electoral Act for membership revalidation nor do the Guidelines so provide for such an exercise. Furthermore, the Electoral Act and the Guidelines do not impose any duty on the 2nd Respondent on the person whose membership must be revalidated by the 2nd Respondent so as to accuse the 2nd Respondent of the breach of the provisions which do not exist either in the Act or Guidelines apart from there being no provision that all membership of the 2nd Respondent must be revalidated.
On the assumption that there were such provisions in the Act and Guidelines, it was submitted that there are no facts in the Appellant’s pleadings to the effect that the breach was in the nomination or selection of the 2nd Respondent’s candidate for the election as no party primaries were being carried out during the revalidation exercise so as to invoke the jurisdiction of the Court below, the learned Counsel for the 1st Respondent insisted.
On the Appellant’s contention that Delegates Nomination Forms were not issued or sold to him and known supporters, the learned Counsel for 1st Respondent countered that the names of the supporters were not listed. Moreover, he further noted, the complaint of the Appellant is not that none of his supporters was issued with Delegate Nomination Form but that his complaint is only on some of his supporters thus conceding that some of his supporters were issued with the Forms. In any case, he added, neither the Electoral Act nor the Electoral Guidelines of the 2nd Respondent provides for who must be issued and sold Delegates Nomination Forms or that all the Appellant’s supporters must be so issued with such Nomination Forms.
According to learned Counsel, it is sufficient that some of the Appellant’s Delegates were issued Nomination Forms as the framers of the Electoral Act and Guidelines understood that if all supporters were issued with Nomination Forms then no member shall elect the other and the purpose of the Special Ward Congress would have been defeated, thus the avoidance of provisions which makes it mandatory that all members of the party or supporters of a candidate be issued Delegates Nomination Forms. He concluded on this point that the complaint that Appellant’s supporters were not issued with Delegates Nomination Forms is not one of these Grounds for the invocation of the jurisdiction of the Court below under Section 87(10) of the Electoral Act, to challenge the nomination of the 2nd Respondent’s Gubernatorial candidate as no selection or nomination was going on when Delegates Nomination Forms were being sold.
On the complaint of lack of Valid Notice of date of the Special Ward Congresses as alleged in paragraph 47(c) of the Statement of Claim of the Appellant, the learned Counsel for the 1st Respondent also submitted that the Appellant was given valid notice of shift in date for the Special Ward Congress from 20th to 21st October, 2011 and the complaint is not that the Appellant was not notified of the Shift in date at all but that he was not given “valid notice”. He further argued that the Appellant did not state what constituted valid notice nor did he show that such notices to each aspirant and his supporters is provided in the Electoral Act or the Guidelines for primary Election of the 2nd Respondent and not having so shown that there was such a provision which was breached; the Court below could not have assumed jurisdiction.
Again, the learned Counsel submitted that upon the assumption that there was such a provision in the Act and Guidelines; the breach cannot be said to have occurred in the selection or nomination of the 2nd Respondent’s Governorship candidate as Notice to Ward Congress is not an act taken in the conduct of party primary. Yet the learned Counsel for the 1st Respondent argued that although non-compliance with the Constitution of the 2nd Respondent is not one of the grounds upon which the jurisdiction of the Court can be invoked, the learned Senior Counsel for the Appellant went on to contend that the 2nd Respondent ought to have compiled with the Constitution but that the Appellant has not shown any provision of the Constitution of the 2nd Respondent which has been breached.
On his earlier contention that the acts complained of must be “in the Selection or nomination of the candidate of a political party for election” in order to invoke the jurisdiction of the lower Court, learned Counsel for the 1st Respondent cited the case of Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (pt.1012) at 20 – 21 paras. E – C; per Ogbuagu, JSC; on the application of the latin maxin “Expressio unius est exclusio alterius,” and submitted that the jurisdiction of the Court can only be invoked under section 87(10) of the Electoral Act where the acts of non-compliance are in respect of the selection or nomination of a candidate of a party for election not the selection or nomination of Ward Delegates. Relying further on the Attorney General of the Federation v. Abubakar (2007) ALL FWLR (pt. 375) 405 at 553 paras. A – C per Aderemi, JSC; he maintained that the acts of non-compliance by a political party which are not “in the selection or nomination of a party candidate for election” or “in the conduct of party primaries” are excluded by section 87(10) of the Electoral Act, 2010.
The learned Counsel to the 1st Respondent conceded that the activities of political parties entail series of selection or nomination processes of persons or candidates for certain positions either within the political party and others to represent the party in General Elections or in public offices but that acts of noncompliance which took place when delegates nomination forms are being sold or when delegates were to be selected cannot invoke the jurisdiction of the Court.
The learned Counsel for the 1st Respondent on the subheading “substantial contradiction in the case of the Appellant”, posited that rather than the Appellant show that the complaints at the lower Court were in respect of breaches of provisions of the Act and Party Guidelines which occurred during the Governorship primary for the 2nd Respondent, the Appellant has now made a different case by the argument at page 8 paragraph 3.10 and page 10 paragraph 3.16 of the Appellant’s Brief where learned Senior Counsel argued that the gravamen of the Appellant’s case is the non-compliance by the 2nd Respondent with provisions of the Electoral Act, the Constitution of the 2nd Respondent Guidelines as well as the 1999 Constitution in the conduct of ward Congresses purported to have held on the 21st day of October, 2011 in Adamawa State to elect the three Ad-hoc Ward Delegates to participate in the gubernatorial primary election in Adamawa State.
Furthermore, the Appellant’s Senior Counsel had also alluded to the strict compliance with the procedure of the Guidelines for conduct of Ward Congresses which is mandatory and condition precedent for the conduct of valid Congress for Gubernatorial Primary Election and that the Ward Congress is the foundation upon which the Special State Congress i.e. the party Primary to nominate the Gubernatorial Candidate of the party at the general election is built, learned Counsel for the 1st Respondent observed. He further referred us to the argument of the learned Senior Counsel for the Appellant in page 13 paragraph 3.29 of the Appellant’s Brief on the contention that complaints arising from non-compliance with paragraphs 2 and 3 Part 1 of the Guidelines of the 2nd Respondent which derived its validity from section 87(7) of the Act are justiciable under subsection (9) of the Act. He then asserted that what is outlined in paragraphs 2 and 3 of Part 1 of the Guidelines of the 2nd Respondent for conduct of Ward Congresses is not what the Appellant complained about at the Court below as having been breached by the 2nd Respondent but that the complaints were as summarised in paragraph 47 of the Statement of Claim and as conceded by the Appellant in paragraphs 38 and 39 of the Appellant’s Brief of Argument. Therefore, the learned Counsel for the 1st Respondent maintained, the arguments in paragraphs 3.10, 3.16 and 3.29 of the Appellant’s Brief of Argument show that the Appellant contends that the breaches complained of took place in the conduct of Ward Congresses and the 2nd Respondent breached the provisions of paragraphs 2 and 3 (Part 1) of the Party Guidelines which provide for conduct of election for 3 Ad-hoc Delegates selected from each Ward who are not candidates for election into public offices.
The paragraphs according to the learned 1st Respondent’s Counsel, do not provide for membership revalidation exercise which was one of the complaints of the Appellant so also do the paragraphs not provide for sale or issuance of Delegates Nomination Forms as well as what constitutes “Valid Notice” for purposes of Congresses or for notice at all. Thus, he reiterated, by placing reliance on paragraphs 2 and 3 of Part 1 of the Guidelines here on Appeal, the Appellant has substantially contradicted himself and on the authorities of Nwokoro v. Onuma (1999) 9 S.C. 59 at 64 and Obasi v. Merchant (2005) 21 NSCQR 276 at 286; per Acholonu, JSC; the law requires litigants to be consistent in presenting their case and not to present on appeal a case different from the one made in the lower Court by them.
Again, the Courts are not allowed to base their decisions on speculations or conjectures or jump from pillar to post. We were then urged to hold that the reliance now placed on Paragraphs 2 and 3 of Part 1 of the Guidelines renders the Appellant’s case speculative or at least admission by the Appellant that their case in the Court below was not on acts of non-compliance which took place in the selection or nomination as required by the Electoral Act.
On the subheading “Appellant’s reliance on section 87(7) of the Electoral Act is unavailing”, learned Counsel for the 1st Respondent quoted the submission of the learned senior Counsel to the Appellant in paragraph 3.14 of the Appellant’s Brief and argued that the Appellant has conceded that he is not availed of the provisions of section 87(7) of the Electoral Act more so as he (Appellant) has not shown which of the procedures issued by section 87(7) of the Act was breached by the 2nd Respondent as the provisions do not apply to this Appeal.
On the subheading “Appellant’s Issue No. 1 which ever way it is resolved cannot avail the Appellant,” he argued that Appellant’s statutory duty was to convince the Court that his complaints at the Court below were matters or acts which amounted to a breach of the provisions of the Electoral Act and Guidelines of the party primaries which duty he failed to discharge. Addressing us specifically, on Issue Number One (1) as formulated by the Appellant he submitted that the Appellant having failed to show that there was a breach of the Electoral Act and the 2nd Respondent’s Guidelines to Primary Election, section 87(10) cannot avail him and Issue Number one (1) no matter how resolved cannot avail him as the Issue raised is merely academic which would not lead to the decision of the lower Court being over turned. The law Courts, he noted, do not engage themselves in academic issues.
As an alternative submission, the learned Counsel for the 1st Respondent pointed out that a proper reading of sections 87(9) and 87(10) of the Electoral Act do not make provision for jurisdiction to be conferred on a Court to entertain a complaint on matters that occur before the conduct of primaries but for the acts complained of, to have taken place when the candidate of a party to an election into a public office is being selected or nominated at a primary election. Quoting extensively from the holding of the Court below, the learned Counsel for the 1st Respondent urged as to hold that sections 87(9) and (10) of the Electoral Act, 2010 do not confer jurisdiction on the Court to determine pre-primary election or matters that occurred before the conduct of primaries of a political party.
We were further urged to refuse the interpretation of the section of the Act above cited as suggested by the learned Senior Counsel for the Appellant as this would destroy the intention of the law makers particularly on the subsection which the learned senior Advocate suggested confers jurisdiction on the Court on matters that occurred before the conduct of party primaries, as it would lead to manifest absurdity. In the view of the learned Counsel for the 1st Respondent, the fundamental duty of this Court is to expound the law and not to expand it but must decide what the law is and not what it might be, more particularly as the provisions of section 87(9) and 87(10) are clear and unambiguous and should be given their ordinary and grammatical meaning.
On this canon of interpretation of statutes, the learned Counsel placed reliance on Abubakar v. Yar’adua (2008) 19 NWLR (1120) 1 at 94 paras. E – G; 132 paras. E – G, 190 paras A – D and 213 para. G; per Tobi, JSC and Magor & St. Mellons Rural District Council v. Newport Corporation (1951) 2 ALL ER. 839; per Lord Denning M. R. and contended that in discharging our duty to discover the intention of the legislature, we should not to be misled by the Appellant’s argument on the purposive rule of interpretation as the Court below did not derail from the intention of the draftsman. Moreover, it would amount to making nonsense of the language of parliament to say that the words “in the selection or nomination of a candidate of a party for election” implies all the activities embarked upon by a political party beginning from registration of party members to the conduct of party primaries which interpretation is far from the intention of the draftsman who was conscious of the fact that Courts do not interfere in all the activities of political parties and so did specify the extent to which the Courts can interfere. Thus he insisted, it was therefore not the duty of the Court below to expand the scope of its jurisdiction to matters not specified by the Electoral Act.
It was also the learned Counsel’s submission that in law, matters that occurred prior to the conduct of primary elections are matters within the exclusive domain and jurisdiction of political parties of which the Courts lack the competence to adjudicate on. Decisions of political parties on such matters whether right or wrong are not issues to be determined by the Courts, he further contended and accordingly insisted that it is on that ground that the right of an aspirant to approach the Court is limited to acts of non-compliance in “the selection or nomination of a candidate of a party for election,” i.e. “in the conduct of the party primaries”.
On the meaning of the italicise words as used in sections 87(10) and 87(9) of the Act, he submitted that they cannot be ignored to accommodate what is not mentioned nor can they be interpreted to mean membership revalidation exercise, sale or issuance of Delegates Nomination Forms or absence of valid notice of shift of Ward Congress date. Guided by the above contention, learned Counsel alluded to the holding of the Court below at page 850 of the Records which we were urged to affirm that the Court below was right in so holding. On the submission by the learned Senior Advocate for the Appellant that section 87(10) conceives of all actions or inactions preceding the conduct of primary election of a political party, to be taken into account in considering the jurisdiction of the Court thereby predicating the Appellant’s case on discrimination, refusal to sell or failure to issue Delegates Nomination Forms, and lack of valid notice to the Appellant, (though the Appellant is said to be singing another tune herein) and the admonition by the learned Senior Advocate that the section of the Act-should not be given restrictive interpretation so as not to provide a hiding place for mischief makers to abuse the electoral processes, the learned Counsel for the 1st Respondent cited Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 S.C.; to submit that Appellant’s argument is to invite us to expand the law.
Relying again on Ndoma-Egba v. Chukwu-Ogor (2004) 5 NWLR (pt. 369) 382 at 409 paras. F – H, per Uwaifo, JSC; and Uwazurike v. A. G. Federation (2007) 8 NWLR (pt. 1035) 1 at 15 – 15 paras. H – A; the learned Counsel warned that to expand the provisions of sections 87(9) & (10) beyond the intention of the law maker will amount to altering the material on which the section is woven as the provisions are clear and unambiguous and the Court ought to interpret them according to their plain and clear words even if it will give an unreasonable result. The only exception to when a Court cannot deviate from the plain words of a statute, according to the learned Counsel to 1st Respondent; is where the provisions of the statute are likely to lead to manifest absurdity which is not the case here. He took the view that even if the words are inconsistent, the Court can still give the subsections their ordinary meanings.
On the whole, he reiterated that the words “in the conduct of its primaries and “in the selection or nomination of a party candidate for election,” as used by the legislature are intended to ensure that events or acts which took place prior to the conduct of a primary election are excluded and that such events do not confer jurisdiction on the Courts and had the intention been otherwise, the draftsman would have said expressly so.
Finally, on the case of Ugwu v. Ararume (supra) cited by the learned Senior Counsel for the Appellant; the learned counsel for the 1st Respondent rounded up his submissions on the first issue by asserting that from the excerpts reproduced in paragraph 3.85 at page 24 of the 1st Respondent’s Brief, the emphasis by the Supreme Court at page 30 of the Report is on party primaries and not on conduct of Ward Congresses or any other activities of the party. We were urged to refuse to expand the meaning of section 87(9) and (10) beyond the conduct of primaries to capture events that allegedly took place before party primaries which will lead to manifest absurdity.
RESOLUTION OF ISSUE NUMBER 1 (ONE)
As was rightly submitted by the learned Senior Counsel in the opening paragraph of the Appellant’s Brief, the resolution of Issue Number 1 shall turn on the Construction of Section 87(9) and (10) of the Electoral Act, 2010 (as amended). However before delving into the construction of the above provisions of the Electoral Act, it is necessary to reflect on the provisions of section 87 generally which by its marginal note deals with nomination of candidates by political parties for elections. Our point of departure shall be Section 87(1) of the Electoral Act, 2010 (as amended) which provides thus:-
“(a). A Political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions”.
Under subsection (2) of the Section 87 of the Act; “The procedure for nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.”
Section 87(3) states that: A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party”.
The subsections of the section which are particularly relevant to the case at hand since it would appear that the 2nd Respondent at the last election for the Governorship seat and other elective positions in the State and indeed the entire Country adopted the indirect primaries system for this purpose, is section 87(4) which provides thus:-
“A Political Party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below-
(b) in the case of nominations to the position of Governorship candidate, a political party shall, where they intend to sponsor candidates:
(i) hold Special Congress in each of the Local Government Areas of the States with delegates voting for each of the aspirants at the Congress to be held in designated centres on specified dates;
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and aspirant’s name shall be forwarded to the Commission as the candidate of the Party, for the particular State.”
The Act also stipulates in section 87(7) thereof that “A Political Party that adopts the system of indirect primaries for the choice of its candidates shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, Congress or Meeting.”
Subsection (9) now (8) of Section 87 says that: “Where a political party fails to comply with the provisions of this Act in conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”. By the provisions of subsection (11) now (10) of Section 87 of the Act: “Nothing in this section shall empower the Courts to stop the holding of primaries or general election under this Act pending the determination of the suit.”
Pursuant to the spirit and letters of Section 87(7) of the Electoral Act, 2010 (as amended), Articles 12.72 (j) and 17.1 and 2 of the 2nd Respondent’s Constitution; the 2nd Respondent formulated the “ELECTORAL GUIDELINES FOR PRIMARY ELECTIONS 2010 OF THE PEOPLES DEMOCRATIC PARTY PDP” where in PART 1 paragraphs 2 and 3 provision is made for three (3) Ad-Hoc Delegates and mode of their Election in the following terms:-
“2(i) For the purpose of nominating the Party’s candidates for the Offices of Governor of a State, member of the National Assembly (Senate and House of Representatives), member of the House of Assembly and election of National Delegates, each Ward Chapter of the Party shall elect three (3) Ward Ad-Hoc Delegates of a Special Ward Congress, at least one of whom shall be a woman. The same delegates shall participate in the Special Congresses for the nomination of the candidates mentioned in this paragraph.
(ii) On the last date for delivery of nomination papers, the Ward Secretary shall authenticate the ward registers and close them to further registration of new members by signing and dating the last page with the words register closed.”
(iii) The ward register shall be used to accredit all registered members of the Party at the Ward between the hours 8.00 a.m. and 12 noon and voting shall commence thereafter.
(iv) The ward election of delegates’ results shall be collated by the Ward Monitoring Officer at the Local Government Party Office for onward transmission to the State Party Office.
(v) The State Monitoring Committee shall collate the results of all the Ad-Hoc Delegates elections three (3) Word Ad-Hoc Delegates and 1 National Delegate from the Local Government Area Congress.”
Paragraph 3 thereof which provides for “MODE OF ELECTION OF AD-HOC DELEGATES’, stipulates thus;
“3. The mode of election of the ad-hoc delegates to the special Convention and Special Congresses shall be by direct and indirect primaries. In the case of election of one (1) National Delegate, delegates to the Special Local Government Congress shall queue up behind aspirants of their choice, while the three (3) ad-hoc delegates shall be elected by all card carrying members in the ward. The three (3) aspirants with the highest votes shall be returned elected.
Provided no woman is among the three (3) aspirants with the highest votes, the female aspirant that scored the highest votes among female aspirants shall be declared the third delegate.”
Paragraph 4 of the Guidelines sets down the time table for election of Delegates and Conduct of Primaries and Part II sub paragraphs A and B provide for the procedure for nominating Gubernatorial candidates and enumerates the Delegates to the Special Congress for the nomination of the said Gubernatorial candidate. Specifically speaking about the procedure for Nominating a Gubernatorial candidate paragraph 4A (i) and (ii) stipulate as follows:-
“i. For the purpose of nominating a Gubernatorial Candidate, the Party shall hold a Special Congress in each of the Local Government Areas in the State where delegates shall vote for aspirants on dates approved by the National Executive Committee (NEC).
“ii. The aspirant with the highest number of votes at the end of voting shall emerge as the Party Candidate.”
Part II Paragraph 4 subparagraph B (i) – (xiv) lists the persons who shall be Delegates to the Special Congress and for the purpose of our instant Appeal subparagraph B (xi) thereof lists as part of the delegates to the Special Congresses for the nomination of the Governorship candidate of the party as “three delegates per ward elected at the ward congress of least one of whom shall be a woman, all of whom shall cease to function at the conclusion of the Congresses for which they were elected.” It has also to be noted that the provisions of the above paragraphs re-enact sections 87(4) (b) (ii) of the Electoral Act, and 87(7) which entrench the democratic election of the delegates and candidates for the Governorship election.
As has been rightly submitted by the learned Senior Counsel for the Appellant, the National Executive Committee of the 2nd Respondent in exercise of the powers conferred on them by Articles 12.72 (j) and 17.1 and 2 of the PDP/2nd Respondent’s Constitution 2009 (as amended); issued detailed provisions on procedure for the conduct of the election of three (3) Ward Ad-Hoc Delegates for the nomination of the Governorship candidate at the Special Congress to emphasize the importance of the three (3) Ad-Hoc Ward Delegates.
Now the contention of the learned Senior Advocate on behalf of the Appellant is that the procedure set out in Paragraph 2 and 3 of Part II of the Guidelines are mandatory and conditions precedent for conducting a valid Ward Congress of the 2nd Respondent which is a sine qua non for the conduct of a valid primary election for the Gubernatorial flag bearer of the 2nd Respondent. From the averments in paragraph 47(a) – (c) of the Appellant’s Statement of claim, the grouse of the Appellant is that the Gubernatorial Primary of the 2nd Respondent held in Yola, Adamawa State on Monday, 24th October, 2011 wherein the 1st Respondent was elected/nominated the candidate of the 2nd Respondent in the 2012 Gubernatorial Election in Adamawa State is invalid and void by reason of the following:-
1. The discriminatory membership revalidation exercise carried out by the Adamawa State Chapter of the 2nd Respondent in October, 2011 in which known supporters of the Appellant were excluded;
2. The refusal to issue/or sell Delegate Nomination Forms of the 2nd Respondent to known supporters of the Plaintiff thereby denying them opportunity to be elected Ad-Hoc Delegates to participate in the nomination of the candidate of the 2nd Respondent in the 2012 Gubernatorial election in Adamawa State at the Gubernatorial Primary held in Yola, Adamawa State on Monday, 24th day of October, 2017; and
3. Lack of valid notice to the Appellant on aspirant, or to his Campaign Organisation or supporters of the date of the Ward Congress of the 2nd Respondent purported to have held on the 21st day of October, 2011;
hence the Reliefs sought in the Statement of Claim which the Appellant predicated on section 87(9) then Section 87(10) of the Electoral Act 2010 (as amended).
Following the preliminary objection raised by the learned Senior Counsel for the 1st Respondent in the lower Court and the arguments proffered by the respective learned Senior Counsel in support or against same which have been replicated herein, the learned trial Judge after considering the three heads under which the case of the Appellant was predicated held thus at page 825 lines 9 – 28 to 826 lines 1 – 5 of the Records inter alia:
“All these complaints are not on the conduct of the primaries. Rather they are complaints on matters that occurred before the conduct of the primaries. I find that that is not the situation envisaged by the provisions of section 87(9) and (10) of the Electoral Act, 2010. The provisions of subsections (9) and (10) of section 87 of the Electoral Act, 2010 have not made provisions to confer jurisdiction of the Court in respect of complaints on matters that occurred before the conduct of the primaries and I so hold. I so hold. I find support for this on the authority of the Supreme Court in the case of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) P. 227, where the Supreme Court said” on page 437 as follows:-
“The fundamental duty of the Court is expound the Law and not to expand it. It must decide what the law is and not what it might be. Where the words used in couching the provisions are clear and unambiguous, they must be given their ordinary and grammatical meaning, no more.”
Indeed from the processes filed by the Plaintiff in this case, there is nothing to show that the Plaintiff participated in the conduct of the primary election as an Aspirant. A person, who has not shown to have participated in on election as an aspirant, cannot be heard to complain on the conduct or outcome of the election.
In view of all that I have said on this issue, I find that the jurisdiction of the Court is not and cannot be invoked pursuant to section 87(9) and (10) of the Electoral Act 2010, as the complaints of the Plaintiff are not on the conduct of the primary election for the selection or nomination of a candidate for election by the 2nd Defendant. I resolve this issue against the Plaintiff.”
I cannot but agree more with the position taken by the learned trial Judge for the reasons I shall state anon.
Section 87(9) of the Electoral Act which interpretation was the bone of contention in the lower Court as it is now in this Appeal, provides that:-
“Notwithstanding the provisions of the Act or rules of the political Party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, or FCT, for redress.”
The Supreme Court in a number of recently decided cases has settled beyond any peradventure the purport of the above section of the Electoral Act on the circumstances under which an aspirant can go to Court to challenge the result of primary election as well as the conferment of jurisdictional competence on the Court to entertain the suit.
In Lado v. CPC (2012) ALL FWLR at page 263 paragraphs G – H to 624 paragraph A; Onnoghen, JSC, commenting on the provisions of the Electoral Act above highlighted, reiterated the position of defunct Electoral Laws on the impotence of the Courts to choose, select or nominate candidates for political parties even in the face of breaches of the extant electoral Act 2010, the Party’s Constitution and Guidelines for the conduct of primaries and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the course of such exercise as an aspirant cannot invoke the jurisdiction of either the Federal High Court or High Court of the State as provided for under section 87(10) (now section 87 (9)), unless such an aggrieved aspirant brings himself within the ambit of section 87(4)(b)(c) of the Electoral Act 2010 (as amended). Hear His Lordship:
“The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended), supra. It is only if he can come within the provisions of those subsections that his complaint can be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides with the political party to exercise.”
At page 627 paragraphs F – H to 628 paragraphs A – C of the Report; His Lordship in the concluding part of the judgment further emphasized the point that:
“As stated earlier in this judgment, section 87 of the Electoral Act, 2010 as amended, deals with the procedure needed for the nomination of a candidate by a political party for any election and specifically provided remedy for an aggrieved aspirant who participated at the party primaries which produced the winner by the highest number of votes.”
Again, in Uzodinma v. Izunaso (No 2) (2011) 17 NWLR (pt. 1275) 30 at 59 para. H to page 60 paras A – E, the Supreme Court Per Rhodes-Vivour JSC; emphasized inter alia on this subject matter:
“The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not have jurisdiction to decide who should be sponsored by any political party as its candidate in an election. See; Ugwu v. Ararume (2007) 12 NWLR (pt. 1048) para 367; Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) paras. 310, Onuoha v. Okafor (1983) 2 SCNLR P. 244. But where the political party nominates a candidate for an election contrary to its own Constitution and Guidelines a dissatisfied candidate has every right to approach the Court for redress. In such a situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party compiled fully with legislation on the issue of nomination. The court will never allow a political party to act arbitrarily or as it likes. Political parties must obey their own Constitution, and once this is done there would be orderliness, and this would be good for politics and the country”.
The above stance of His Lordship found resonance in the dictum of Fabiyi, JSC; while pronouncing on the scope of Section 87(10) in Chief Ikechi Emenike v. Peoples Democratic Party & Ors. (2012) 12 NWLR (pt. 1315) Pg. 556, thus: “From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a Court the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specific provisions of the Electoral Act/Electoral Guidelines.” page 590 para. D to page 591 para. D.
But where the political party conducts its primaries and a dissatisfied contestant at the primaries complains about the conduct of the primaries the Courts have jurisdiction by virtue of provisions or Section 87(9) (now 87(10)) of the Electoral Act to examine if the primaries elections were conducted in accordance with the party’s Constitution and Guidelines. See Hope Uzodinma v. Senator O. Izunaso 2011 Vol. 5 (pt. 1) M.J.S.C. P. 27, (2011) 17 NWLR (pt. 1275) 28. This is so because in the conduct of its primaries the court will never allow a political party to act arbitrarily or as it likes.” Per Rhodes Vivour, JSC page 60 para. E.
Before the decisions in the above cited cases Tobi, Oguntade and Muhammad JJSC; (although the subject matter of the case then was substitution under Section 34(2) of the 2006 Electoral Act), had laid the foundation for the current trend of the Law and the insistence that the breach of the Electoral Act, the Party Constitution and Guidelines for conduct of primaries confers an aspirant with the locus standi to challenge the outcome of a Party’s nomination when they held in the first place that it makes nonsense of the Electoral Guidelines of the PDP if the party will not follow its Constitution and Guidelines for the conduct of the Parties’ Primary (Per Tobi JSC). On the part of Oguntade, JSC; the emeritus judicial icon ever so pungently put it beyond peradventure that Courts of law would no longer shy away from so-called political questions where a party desecrates its Constitution or Guidelines for the conduct of Primary Election; when he remarked:
“If the political parties, in their wisdom had written it into their Constitutions that their candidates for election would emerge from their party primaries it becomes unacceptable that the Court should run away from the duty to enforce compliance with the provisions of the parties’ Constitution. The Court did not draft the Constitutions for these political parties. Indeed, the Court, in its ordinary duties, must enforce compliance with the agreements reached by the parties in their contract.”
Finally, Muhammad, JSC; in lending his voice to those of his colleagues intoned inter alia: “Where a member of a political party feels aggrieved because both the political party to which he belonged and INEC side-lined him, after having been initially and properly screened and nominated to contest for an election but at the nick of time had been substituted by another member of the party, I think, he has every right to ask the Court of law to intervene and protect his right to be allowed to contest the election”.
The Supreme Court again as recent as 2012, in the consolidated cases of PDP v. Timipre Sylva & 2 Ors/Timipre Sylva v. PDP & 2 Ors. (2012) 13 NWLR (pt. 1316) 85 at 126 paras. A – B and 147; per Rhodes-Vivour, JSC; who read the lead judgment of the apex Court with whom Mohammed, Chukwuma-Eneh, Muntaka-Coomassie and Fabiyi, JJSC concurred had cause to define the term aspirant as used in section 87(1) of the Electoral Act, 2010; which is to the effect that a political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions thus: “An aspirant is a person with strong desire to achieve a position of importance or win a competition. From the above (i.e. section 87(1)) it is clear that an aspirant is a person who contested the primaries. An aspirant is thus a candidate in the primaries”
Besides, Chukwuma-Eneh, J.S.C; commenting on the locus standi of a claimant like the Appellant in this case, posited in line with past decided cases by the apex Court and aptly captured the scenario that has replayed itself herein inter alia: “The 1st Respondent has brought this action complaining that the instant party primary election has been fractured in a material particular thus rendering the whole exercise null and void. And so has invoked the provisions of section 87(9) (supra) by contending in the process that the Court has the vires to entertain, has complained about the conduct of the instant party’s primaries from which he has been excluded by the party.
On the facts of this case however, the 1st Respondent lacks the locus standi to challenge the immediate party primaries for the gubernatorial election slated for April, 2012 as he has not taken part in the said party primaries as on aspirant as he has been excluded from the said process by the party. It is my view that for a member to have the locus standi to institute an action relying on section 87(9) (supra) he must have been on aspirant in the sense of one who has fully participated in the said party primary but not a member who has been excluded from the process by the party. There is therefore no way the instant action can be allowed to stand.”
Finally, on the issue of jurisdiction, it is trite that jurisdiction is a fundamental and threshold matter, the life blood of adjudication which when raised, the Court ought to determine same before proceeding with the consideration and determination of the substance of the case. Where a court lacks jurisdiction to entertain a suit the entire proceeding is in nullity no matter how well conducted. It has also been held that it is the claim of the Plaintiff, in this case, it is the Statement of Claim and the Reliefs Sought by the Appellant that determine the jurisdiction of the Court. See Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 588; Ugwu v. Ararume (2008) CCLR at 270 also reported (2007) 12 NWLR (pt. 1048) 367 at 445 paras. B – C and Elabanjo v. Dawodu (2005) 15 NWLR (pt. 1001) 76. See further the land mark case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 where it was held that a Court is competent when:
(a) 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.
(b)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
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Emeka v. Okadigbo & 4 Ors. (2012) 18 NWLR 55 at 83 paras. D – F; Okoya v. Santili (1990) 2 NWLR (pt: 131) 172; Osafile v. Odi (1) (1990) 3 NWLR (pt.137) 130 and Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296.
In the Emeka v. Okadigbo case (supra) Fabiyi, JSC; at page 104 paragraphs F – H, had cause to pronounce on the issue of jurisdiction of the Court to entertain the Appellant’s suit reiterated the position he took in Chief Ikechi Emenike v. PDP & 3 Ors. (2012) 12 NWLR (pt. 1315) 556; that in matters relating to primary election of the Peoples Democratic Party on the nomination of a candidate for election as in this case, the Court ordinarily has no jurisdiction to dabble into same as it is the prerogative of the party to take care of it as was decided in Onuoha v. Okafor (1983) NSCC 494; (1933) 2 SCNLR 244. The learned Law Lord added the rider:
“The Court is however, vested with a very limited and thin jurisdiction which can be ignited under the provision of section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act, 2010 (as amended). The section imbues the National Executive Committee of the party with the vires to organise and conduct the primaries. A candidate who took part in such a primary election can complain before the Court.
It is extant in the Record of Appeal that the Appellant herein did not take port in primary election conducted by the National Executive Committee of the Peoples Democratic Party which was won by the 1st Respondent.”
There appears to be a common thread that runs through the gamut of all the cases we have cited on this vexed issue of jurisdiction and the locus standi of the Appellant to institute the action in the lower Court now on Appeal herein which is that for the suit in the lower Court to be competent under section 87(9) of the Electoral Act:-
1. The Appellant was an aspirant/candidate at the primary election conducted on the 24th day of October, 2011; by the National Executive Committee of the 2nd Respondent for the nomination candidate of the party candidate for Gubernatorial Election of 2012, in Adamawa State.
2. He took part in said primary election of 24th October, 2011.
3. In the conduct of the primary election, the 2nd Respondent breached the provisions of the Electoral Act, 2010 (as amended); the Constitution of 2nd Respondent as well as the Party Guidelines for the conduct of the said primary.
A cursory look however at paragraph 47(a) to (c) of the Statement of Claim which is the gravamen of the Appellant’s case would reveal that he was complaining of pre-primary election acts and inactions of the 2nd Respondent like discriminatory membership revalidation exercise in which his supporters were excluded; refusal to issue and sell Delegates Nomination Forms to his Ad-Hoc Delegates/supporters thereby denying them participation in the Gubernatorial primary for the nomination of the 2nd Respondent’s candidate for the 2012 Gubernatorial election in Adamawa State and lack of valid notice to the Appellant, his Campaign Organisation or supporters of the date of the Ward Congress of the 2nd Respondent held on the 21st day of October, 2011.
Therefore from all indications, the Appellant not being a participant at primary election having indirectly disclosed that he was excluded, and since his complaints were more or less on events that preceded the conduct of the Gubernatorial primary in question; his cause of action is not cognisable by section 87(4) (b) (ii) of the Electoral Act so as to clothe him with the necessary locus standi to invoke the jurisdiction of the Federal High Court under section 87(9) of the Act.
The learned Senior Counsel for the Appellant while relying on the dictum of Aniagolu, JSC; in Ojukwu v. Onwudiwe (1984) 15 N.S.C.C. 172 at 200; has strenuously argued that the law maker could have omitted the adjective “democratic” from qualifying the “election of delegates” and that the adjective “democratic” was used for special effect which the Courts should give in the interpretation of the section 87(7) of the Electoral Act. He argued on the basis of the above that the categories of actions and inactions that are democratic and undemocratic are not closed as each case should be determined on its merit and if the complaints of the Appellants in paragraph 47 of his statement of claim is proved, then the entire process leading to the conduct of the Ward Congresses in Adamawa State to elect the three Ad-hoc Ward Delegates which purportedly held on the 24th October, 2011 were undemocratic.
With the greatest respect, to the learned Senior Counsel, the case of Ojukwu v. Onwudiwe (supra) per Aniagolu, JSC; (of blessed memory) on the essence of Democratic Election and the ingrained pillars of freedom, fairness and impartiality in the exercise of the citizens rights of choice of their representative who they consider as possessing the qualities which mark them out as preferred candidates to those contesting with them, is a truism. However, the case is cited out of con as the Supreme Court by the impregnable doctrine of stare decisis has spoken and given the interpretation of section 87(1) and (9) of the Electoral Act its imprimatur or finality and this Court is willy-nilly bound to abide or stand by the position taken by the apex Court until their Lordships reverse themselves.
Still on the restrictive approach of the lower Court to the interpretation of Section 87(9) of the Electoral Act, the learned Senior Counsel was of the view that the situation could have been different if the Appellant was allowed to ventilate his grievances but failed to substantiate his complaints with credible evidence rather than deny the Appellant access to justice on the ground of actions and inactions of the 2nd Respondent that occurred “before” or “prior” to the conduct of the primary election which decision of the Court below occasioned a miscarriage of justice.
The learned Senior Advocate to the Appellant harped on what he terms the restrictive interpretation of section 87(9) of the Act, the consequence of which is the return to the era when leaders of political parties handpicked candidates to contest elections instead of democratically elected candidates by party delegates as envisaged by Section 87(7) of the Act. We have been urged to continue to identify the mischief sought to be remedied by the amendment in subsection 87(9) of the Act and endeavour to prevent all forms of abuses perpetrated in the conduct of primary elections and that the goal should be to stamp out all forms of abuses of the electoral processes notwithstanding the stage at which it occurred.
On another wicket, it was submitted by the learned Counsel that the canon of interpretation required for the Electoral Act should be the same as that for 1999 of the Constitution as the Electoral Act is a subsidiary legislation operating side by side with the Constitution. For the above submission he placed reliance on the cases Action Congress v. INEC (2007) 2 NWLR (pt. 1048) 220, A.G. Bendel State v. A.G. Federation (1982) 2 NCLR 1 and Global Excellence Communications Ltd. v. Donald Duke (2007) 16 NWLR (pt. 1059) 22; to enumerate some of the canons of interpretation that may be applied for the purpose of the Electoral Act which according to him, the learned trial Judge failed properly apply to give effect section 87(9) of the Act.
He further observed that by ignoring the clear words of Sections 87(7) and 87(9) of the Act and adopting an artificial distinction between “before or in conducting primary elections”, the learned trial Judge was expanding rather than expounding the law thus occasioning substantial miscarriage of justice and should be reversed. Referring us of the current challenges of the electoral process in Nigeria and the need compel political parties to comply with their Constitution and Guidelines and the 1999 Constitution in promoting internal democracy as enunciated by Oguntade, JSC in Ugwu v. Ararume (supra); he urged us to hold that the proper approach to the interpretation of the Act is to apply the all inclusive and liberal approach so as to give effect to the principle upon which the Act was established, which in this case is to redress the culture of impunity by political parties in the process of nominating candidates to contest elections and avoid the consequences of growing resentment among the political elite in Nigeria.
Citing finally Buhari & Anor. v. Obasanjo and Ors. (2005) 13 NWLR (pt. 941) 1 at 219 and Onwuchekwa v. NDIC (2002) 5 NWLR (pt. 760) 371 and Federal Republic of Nigeria v. Odua Investment Co. Ltd. (2002) 5 NWLR (pt. 716) 615; the learned Senior Counsel urged us not the read the provision of the Act in question with stultifying narrowness, as suggested by the learned Senior Counsel for the 1st Respondent by denying a litigant access to Court even though a person’s access to Court may be taken or restricted by statute but the language of such statute should be scrutinized by the Courts and should not be extended beyond its least onerous meaning unless the clear words used justify such extension.
It is not unusual for the provisions of the Sections 87(1)(b)(ii) and 87(9) of the Electoral Act, 2010 (as amended) to have generated divergent views by learned minds on their mode of interpretation, particularly on the wordings thereof which at first sight or even viewed myopically are clear and unambiguous and should normally be given their ordinary, natural, simple and literal interpretation as dictated by the cardinal rule of interpretation of statutes or enactments as contended by the Learned Senior Counsel for both the Appellant and the 1st Respondent. See Per Eso, J.S.C who cited Awolowo v. Shagari (1979) 6 – 9 S.C. 51 in the Attorney-General, Ogun State v. Alhaja A. Aberuagba & Ors. (1935) 4 S.C (Pt. 1) 288 at 383; where the erudite and eminent Law Lord advised:-
“In the interpretation of Statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous then the ordinary literal meaning must be given to them, for then the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation.”
Going by the above authorities and others cited by the Appellant, all that a party member who aspires to be Governor needs to do, is to fold his arms and wait without partaking in the primary elections only to wake up at his convenience to rake up spurious claims against the conduct of the primary on the ostensible reason that the categories of undemocratic action and inactions that will ignite the invocation of section 87(9) of the Electoral Act, 2010; are not closed as purported by the learned senior Counsel for the Appellant.
Fair enough the learned senior Counsel has rightly submitted that the Electoral Act is a subsidiary legislation to the Constitution of the Federal Republic of Nigeria, operating side by side with the Constitution and that the canon of interpretation required for the Electoral Act should be the same as that for the Constitution of Federal Republic of Nigeria 1999. In this wise, we shall first invoke and call in aid the immortal and oft-quoted dictum of one of our best, the legendary Rt. Honourable, Sir Udo Udoma, J.S.C., of blessed memory, in the cause celebre of Nafiu Rabiu v. Kano State (1980) 8 – 11 S.C. 130 at 148 – 149, on the need for the Courts generally to adopt a purposive approach tending towards a broad or liberal interpretation of the provisions of the Constitution except where there is indication in the that a narrower interpretation will best fulfill the objects and purposes of the Constitution thus:
“The function of the constitution is to establish a framework and principle of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution, and where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the brooder interpretation, unless there is something in the or in the rest of the constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim, ut res magis valeat quom pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provision will serve to enforce and protect such end.”
See also Obaseki, J.S.C in Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 7 (1982) 3 NCLR 1; ably cited that the learned Senior Advocate for the Appellant where in line with the dictum above cited, he laid down six principles that should guide a judge in the interpretation or construction of constitutional provisions thus:
1. Effect should be given to every word;
2. A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the con;
3. The language of the Constitution where clear and unambiguous must be given its plain and evident meaning;
4. A constitutional provision should not be construed so as to defeat its evident purpose;
5. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions; and
6. Words of the Constitution are therefore not to be read with stultifying narrowness. See further Aqua Ltd. v. Ondo State Sports Council (1985) 4 NWLR (pt. 91) 622; Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517 and Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506.
The stance of the their Lordships derive their foundation from the dictum of Lord Wilberforce in Minister of Home Affairs v. Fisher (1980) A.C. 379 at page 329; in his interpretation of the Constitution of the Common Wealth State of Bermuda, where the distinguished Law Lord took the view that since a Constitution is sui generis, there must be established its peculiar principles of interpretation inherent and suitable to its character. In which case, all presumptions and generally accepted canons of interpretation relevant to statutes in the realm of private law are not necessarily applicable and acceptable to the construction of Constitutions. Hear ye him:
“A Constitution is a legal instrument giving rise amongst other things, to individual rights capable of enforcement in a Court of Law. Respect must be paid to the language which has been used and to the traditions and usages which had given meaning to that language. It is quite consistent with this, and with the recognition, that rules of interpretation may apply, to take as a point of departure from the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.”
As far back as 1940, Viscount Simmons, L.C. in the case of Nokes v. Doncaster Amalgamated Collieries, Ltd. (1940) A.C. 1014, had posited on the Latin maxim ‘ut res magis valeat quam pereat’, a variation of which His Lordship Udo Udoma, JSC, in Nafiu Rabiu’s case suggested should be our approach to construction of the Constitution, that: “If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.” On his part, and this appears also to have informed the liberal attitude of our courts to interpretation of constitutional provisions, Lord Shaw, also in the English case of Shannon Realities, Ltd. v. Ville de Michel (1924) A.C. 185, had taken the view that: “Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.”
Coming back home, Sir Udo Udoma, again in the self same case of Nafiu Rabiu v. Kano State (1980) 8 – 11 S.C. 148 – 149, supporting the views expressed above by Lord Shaw made it patently clear, still on this theme of construction of the Constitution that:
“I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
Guided by the above principles, our apex court and indeed this court, have as much as possible in recent times strained every nerve and endeavoured to the best of their abilities to adhere religiously to this canon of interpretation whenever any opportunity calls for the construction of Constitutional as well as adjunct provisions of statutes like the Electoral Act, 2010; as we have been called upon to do herein. See Akintan, J.S.C., who speaking in the same vein in A.G. Federation v. Abubakar (2007) 20 WRN 1 at 49 – 50; summarized the principles enunciated above which should guide the exercise of our interpretative jurisdictions as follows:-
1. A liberal approach should be adopted;
2. The court must employ core and always bear in mind that the circumstances of our people must be taken into consideration;
3. The historical facts which ore necessary for comprehension of the subject matter may be called as aid;
4. Regard should be taken to ensure that the mischief which is intended to deter is arrested.
See. Adeleke & Ors. Oyo State House of Assembly (2006) 52 WRN 22; Katto v. CBN (2000) 18 WRN 108; Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) at 601 – 602; Nwaigwe v. Okere (2008) 34 NSCQR 1325; Niwa v. Shell (2008) 34 NSCQR 618; Amanchukwu v. FRN (2009) 37 NSCQR 616; Awuse v. Odili (2004) 67 WRN 1.
Going by the positions taken by their Lordships in the respective cases cited, what then are the obvious ends the amendment to the Electoral Act and in particular section 87(9) thereof was/is designed to serve? I shall recall what I said in Hon. Nguroje v. El-Sudi (supra) unreported judgment of this Honourable Court delivered on 17th December, 2012, while ruminating on the judgment of the Supreme Court in Lado v. C.P.C. (2011) 18 NWLR (pt. 1279) 689 that: pre-election matters emanating from nomination or selection of candidates to contest elections into public offices under the platforms of political parties were hitherto no go areas for the Courts no matter the horse trading, chicanery, backstabbing or bare-faced fraudulent activities of political parties and their smart members in the course of such exercise.
I recalled that the Courts, in the circumstances it would appear then, demonstrated downright reticence or paid blind eyes in the face of such unwholesome developments right from the inception of the second and third Republics perhaps because of the state of the law. See for instance the Supreme Court decisions in Onuoha v. Okafor (1983) 2 SCNLR 244, Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310 at 334 – 335; Ugwu v. Ararume (2007) ALL FWLR (pt. 377) 807; and subsequent like matters. Of course, the usual mantra was that disputes emanating from such exercise were purely political questions exclusively within the domain of political parties and accordingly not justiciable by Courts of law.
I further took the view which I hereby adopt in this Appeal that the non-justiciability of so called political questions assumed a near calamitous dimension when between 2003 and 2005, it culminated in the chaotic imbroglio of the Anambra State PDP intra party squabbles where candidates who were screened and cleared and were duly nominated by majority of their members at the primary erections and indeed contested and won their respective General elections and were duly so declared; had their victories annulled over night and their certificates of returns awarded like chieftaincy titles to favourite surrogates of political God Fathers with the tacit connivance of the Resident Electoral commissioner and INEC Headquarters, Abuja; under the guise of substitution. Cases like Abana v. Obi & Ors. (2005) 6 NWLR (pt. 920) 183; Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) 489; Ukachukwu v. Uba, Amaechi v. INEC and other cases of like nature abound in our Law Reports like rashes.
It was further observed that to stem the tide of arbitrariness that characterised the conduct of primary elections and other untoward malpractices by political gladiators and the opprobrium generated within the polity, the National Assembly (introduced) section 34 of the 2006 Electoral Act which provided for a limitation period of 60 days within which a political party may change or substitute its candidate for election and for such substitution to be mandatorily in writing with verifiable reason advanced to INEC. The section also conferred a right on a candidate who was substituted contrary to the provision of section 34 of the Act to challenge such substitution in a Court law.
I also alluded further to the dicta of the learned and seminal Law Lord Onnoghen, JSC and his equally erudite brothers Adekeye and Fabiyi JJSC; in their concurring judgments in Lado v. INEC (supra) at pages 622 paras. A – F and 628; that the introduction of section 34 of the 2005 Electoral Act, did not change, modify or alter the pre-existing principle of non-interference by Courts in the internal affairs of political parties as to who their candidates should be but merely restricted the right or power of political parties to change or substitute their candidates at their whims and caprices before an election; which I verily agreed with and adopted. However, I went further to hold that be that as it may, even though the present Electoral Act 2010 (as amended) does not provide for substitution of nominated candidates by political parties, there are salutary provisions in sections 87(1) which entrench democratic process in the holding of Party Primaries for nomination of candidates; 87(4) (b) (ii), 87(9) and more particularly 87(10) thereof which regulate the conduct of such parties primaries.
I reproduced sections 87(4)(c) (i) and (ii) which dealt with the subject matter of the Appeal then, that is to say the nomination of candidates for any elective positions by a political party, (in that case the nomination of the PDP Candidate for the House of Representatives Election into Gashaka/Kurmi and Sarduana Federal Constituency of Taraba State), and with particular reference to Section 87(9) then (10); I then referred to the case of NDIC v. Okem Enterprises (2004) 10 NWLR (pt. 880) 107 at 182 para. H. per Uwaifo, JSC; who defined the term ‘notwithstanding’ while interpreting the provision of section 251 of the Constitution which deals with the jurisdiction of the Federal High Court as connoting thus:
“When the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that as used in section 251(1) of the Constitution, no provision of that Constitution shall be capable of undermining the said section.”
Going by the above authority, section 87(10) of the Electoral Act excludes any impinging or impeding effect of any other provision of the Act or even the Guidelines for primary elections made pursuant to the Constitution of the PDP/2nd Respondent (which by its Preamble admits at page 1 thereof that: “The Electoral Guidelines for Primary Elections, 2010 of the Peoples Democratic Party were, therefore drown up, to conform strictly with the provisions of…., the Electoral Act, 2010 and the Constitution of the Federal Republic of Nigeria”) from that section of the Electoral Act fulfilling itself in the regulation of party primaries. In other words, by the above authority, every other section of the Electoral Act, the PDP Constitution and Guidelines for the conduct of primary Elections; are subordinated to Section 87(10) of the Electoral Act which guarantees an aspirant in a Party Primary the right to seek redress in a Court of Law provided his complaint is that any of the provisions of the Act, Rules or Guidelines of the Political Party has not been complied with in the selection or nomination.
In the instant appeal, the Learned Senior Counsel for the Appellant rightly cited the dictum of Oguntade, J.S.C.; in Ugwu v. Ararume (2007) 12 NWLR (pt. 834) 1 at 30; which is to the effect that that the essence of section 87(1) and (9) of the Electoral Act, 2010, is to stem the culture of impunity that thitherto characterized the conduct of the primary election by political parties and to enthrone internal democracy within the party by its members in such exercise. However, this is not to say that the Supreme Court has given restrictive interpretation of the above section of the Electoral Act. They have given the interpretations of the sections in a manner that best express the intention of the legislature in enacting those sections of the Act which is that only an as aspirant who took part in the primary election can challenge the conduct of such primary and that the breach of the Electoral Act, the Party Constitution and Guidelines for the party’s primary election must have taken place in the conduct the Primary election for the nomination or selection of a candidate of the Political Party for election into a public office in order to vest the aspirant with the locus standi to seek redress in any of the Courts mentioned in section 87(9) of the Electoral Act and to imbue such Courts with the requisite jurisdiction to entertain the complaint of a Plaintiff like the Appellant in this case.
On the authorities Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (pt.1012) at 20 to 21 paras. E – C, A. G. Federation v. Abubakar (2007) ALL FWLR (pt. 375) 405 at 553 paras. A – C per Aderemi JSC; Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 S.C.; Ndoma-Egba v. Chukwu-Ogor (2004) 6 NWLR (pt. 869) 382 at 409 paras. F – H, per Uwaifo, JSC; and Uwazurike v. A.G. Federation (2007) 8 NWLR (pt. 1035) 1 at 15 – 16 paras. H – A; ably relied upon by learned Counsel for the 1st Respondent, I agree completely that the jurisdiction of the Court can only be invoked under section 87(9) of the Electoral Act; where the acts of non-compliance by the political party are in primaries for the selection or nomination of the candidate of the party for election into public offices and not in the selection of Wards Delegates or any of those complaints which formed the basis of the Appellant’s claim in the lower Court. I agree also that to subscribe to the interpretation given by the learned Senior Counsel for the Appellant, to the sections of the Electoral Act in question particularly section 87(9); will tantamount to expanding rather than expounding the law as it is. This Issue is therefore resolved against the Appellant.
ISSUE NUMBER 2. WHETHER HAVING RAISED SUO MOTU THE ISSUE OF THE PARTICIPATION OF THE APPELLANT IN THE PRIMARY ELECTION CONDUCTED ON THE 24TH DAY OF OCTOBER, 2011 TO NOMINATE THE CANDIDATE OF THE 2ND RESPONDENT IN 2012 GOVERNORSHIP ELECTION IN ADAMAWA STATE, THE LEARNED TRIAL JUDGE WAS NOT IN ERROR IN FAILING TO INVITE THE PARTIES TO ADDRESS HIM ON THE ISSUE BEFORE REACHING DECISION?
In his argument of this issue, the learned Senior Counsel for the Appellant has referred us to Paragraph 1 of the Appellant’s Statement of Claim at page 9 of the Records which averment is supported by the following documents:
(a) The Appellant’s PDP membership Card, No. 7229215;
(b)The Appellant’s Expression of Interest Form;
(c) The Appellant’s Nomination Form; and
(d) The Appellant’s clearance Certificate issued to him by the 2nd Defendant/Respondent.
He then contended that the Primary Election of 24th October, 2011 was conducted by the 2nd Respondent and even as at now, the 2nd Respondent has not filed a Statement of Defence to deny the averments of the Appellant or to allege that the Appellant did not participate in the primary election. It is the learned Senior Advocates submission that the issue of participation in the primary election of 24th October, is a matter of fact which must be proved by evidence and 1st Respondent’s Preliminary Objection did not raise the issue whether or not the Appellant participated in the primary election of 24th October, 2011 yet the learned trial Judge ruled on the Preliminary Objection of the 1st Respondent erroneously as he did at page 825 of the Record of Appeal.
The learned Senior Counsel conceded that if the Appellant did not participate as an aspirant in the primary election, under section 87(9) of the Electoral, he is not entitled to seek redress on the primary election. He has further conceded that the learned trial Judge is entitled to raise any issue for the just determination of the issue in controversy between the parties but added that our accusatorial system of adjudication contemplates that the learned trial Judge is to pronounce on issues submitted to it as an umpire who can only direct proper focus at what parties have articulated without sufficient clarity as to the question in controversy. For the above submission, he relied on the Comptoir Commercial & Industries SPR Ltd. v. Ogun State Water Corporation & Anor (2002) 9 NWLR (pt. 773) 29.
Citing again Adike v. Obiaeri (2002) 4 NWLR (pt.758) 537, he submitted that it is settled law that where necessary a point arising for determination in a case should be further clarified by evidence after the close of trial, it is the duty of the Court trying the case to invite the parties to supply evidence or explain such point. According to the learned Senior Advocate, it is wrong for the Court in such circumstances to substitute its own views on matters on which there should be evidence as the Court should not go on a fact finding mission because investigation is not the function of the Court.
Finally, on this Issue, the learned Senior Counsel for the Appellant asserted that the failure of the learned trial Judge to invite the parties to address the Court on the issue of the Appellant’ participation in the primary election which he raised suo motu is a breach of the Appellant’s right to fair hearing as guaranteed by the Constitution of the FRN, 1999. We were then urged to set aside the finding of the learned trial Judge on that issue and resolve Issue Number 2 in favour of the Appellant.
Reacting to the above submission, Mr. Akam for the 1st Respondent also referred to the page 825 of the Records which contains the Ruling the subject of this issue to submit that the comment by the learned trial Judge does not quality as an issue that the parties have to address on but rather qualifies as an obiter which did not occasion a miscarriage of justice. He explained that an issue raised suo motu is one which ought to be determined in the matter given in evidence before the Court but was raised by Court and not by the parties to the matter. According to the learned Counsel for the Appellant, the law permits a Judge to express his view obiter while writing his judgments without giving parties to address the Court on such comments.
Relying on the case of Alhaji Yakubu Ent. Ltd. v. Omolaroje (2006) ALL FWLR (pt. 302) 113 at 120 paras. D – F S.C. on when a miscarriage of justice is said to be occasioned, he referred us to the case of Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76 at 112 paras. C – E S.C. and posed the question whether the Court could have ruled in favour of the Appellant if parties were given the opportunity to address the Court on the issue of participation or if the issue had not been mentioned at all by the Court which question the Appellant failed to answer.
The learned Counsel for the 1st Respondent further posed the question as to why the Court could have ruled in favour of the Appellant when he did not satisfy the requirements of the provisions of section 87(9) and (10) of the Electoral Act, 2010; did not establish that his complaints were on matters which occurred in the conduct of party primaries or in the selection or nomination of the party’s candidate for election and the acts complained of were acts of non-compliance with the provisions of the Electoral Act 2010 and the Electoral Guidelines of the 2nd Respondent. Besides it was the learned Counsel for the 1st Respondent’s submission that the Appellant failed to point out in the lower Court what provisions of the Electoral Act or Guidelines of the 2nd Electoral Act or Guidelines of the 2nd Respondent that were breached by the 2nd Respondent in the conduct of its primaries but that the Appellant has only now on Appeal contend that Paragraphs 2 and 3 of Part 1 of the 2nd Respondent’s Guidelines for the conduct of Ward Congresses were breached.
The learned Counsel therefore has contended that the Appellant’s position now contradicts his case at the Court below which in effect renders the Appeal speculative. Moreover, he maintains, although the Appellant conceded that a person who did not participated in the primaries cannot invoke section 87(9) of the Electoral Act, his Statement of claim has not disclosed that he actually participated in the primary election and so the Ruling could not have favoured him even though he was given clearance certificate to participate in the primary election.
As for the reliance placed by the Appellant on Paragraph 1 of his Statement of Claim, the learned Counsel submitted that by the averment therein, the Appellant has conceded that he was yet to be nominated as he was expecting to participate in the primary election and as such it is an admission of the Ruling of the lower Court that the Appellant’s processes have not shown that he actually participated in the primary election. Placing reliance finally on the cases of Inakoju v. Adeleke (2007) 15 NWLR (pt. 1025) 423 at 588 – 589 paras. H – C and C.S. INC. v. M/T Cindy Gala (2007) 4 NWLR (pt.1024) 222 at 243 para. C; he submitted that apart from having been given Clearance Certificate, the Appellant ought to plead those facts of participation in order to satisfy the Court below that the suit was competent and that Court had jurisdiction to determine same. This is because the Statement of Claim is the only document from which the Court must satisfy itself that the Plaintiff is competent to institute the action and that the suit is within its jurisdiction to determine, the learned Counsel for the 1st Respondent insisted.
We were finally urged on this Issue to hold that the Ruling of the Court was right and there was no miscarriage of justice by the Ruling.
RESOLUTION OF ISSUE NUMBER TWO (2)
In the resolution this issue, it is necessary (and I must agree first of all with the submission of learned Senior Counsel for the Appellant and the authorities he has cited); that although a Court of law is entitled to raise an issue for the just determination of the controversy between the parties, by our accusatorial system of adjudication, the Judge in the discharge of his duty as a dispassionate and disinterested umpire should give the parties or their Counsel the opportunity to either lead evidence on the issue or address the Court before the determination of the issue in question. This is because failure to give parties such opportunity may tantamount to doing cloistered justice and a breach of their Constitutional right to fair hearing. See Comptoir Commercial & Industries SPR Ltd. v. Ogun State Water-Corporation & Anor. (2002) 9 NWLR (pt. 773) 629 and Adike v. Obiaeri (2002) 4 NWLR (pt. 758) 537; ably relied upon by the learned Senior Advocate for the Appellant; Victino Fixed Odds Ltd. v. Ojo & Ors. (2010) 185 LRCN 166, Chabasaya v. Anwasi (2010) LRCN 1, Ibori v. Agbi (2004) ALL FWLR (pt. 202) 1799 S.C. and Adeogun v. Olaogun (2008) 17 NWLR (pt. 1115) 149 at 187 paras. B – C; per Tobi, JSC.
The rationale behind this principle of law as stated above is that the Courts must base their judgments on facts pleaded and issues contested by parties as Courts are not allowed to formulate or set up a case different from what the parties themselves brought for adjudication since parties are bound by their pleadings. See Akinlagun v. Oshoboja (2006) ALL FWLR (pt. 325) 53; Aliyu v. Ituama (2010) ALL FWLR (pt. 510) 765 at 777 paras. A – C; George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71 at 77 and Dr. Nwafor Orizu v. F. E. A. Anyaegbunam (1978) 5 S.C. 21 at 33 – 34. It is therefore, indubitable and learned Counsel on both sides of the divide are ad idem that where a Court raises an issue suo motu without calling on the parties to address it on the issue this could amount to the breach of the right of the parties to fair hearing under the audi alteram partem rule. See per Tobi, J.S.C. in Adeogun v. Olaogun (2008) 17 NWLR (pt. 1115) 149 at 187 paras. B – C.
Now the learned Senior Counsel referred us to Paragraph 1 of the Appellant’s Statement of Claim and the documentary Exhibits annexed to the originating processes at pages 20, 24, 40 and 128 of the Records to submit that the Issue of participation of the Appellant at the primary election of the 2nd Respondent of 24th day of October, 2011, for the selection and nomination of the 2nd Respondent’s flag bearer at the Gubernatorial Election 2012; is an issue of fact that ought to be proved by evidence and that the Preliminary Objection did not raise the issue of participation of the Appellant in the primary election but that the Court raised same suo motu.
A look at the Grounds upon which the 1st Respondent’s Preliminary Objection was predicated would reveal that Ground 8 raised the issue of the incompetence of the suit and the Court’s lack of jurisdiction to entertain same although the issue of want of participation of the Appellant was not specifically raised. The offensive portion of the Ruling of the learned trial Judge that has attracted this Ground of Appeal (see Ground 2 at page 870 of the Records) avers thus: – “Indeed from the processes filed by the Plaintiff in this case, there is nothing to show that the Plaintiff participated in the conduct of the primary election as an Aspirant. A person, who has not shown to have participated in an election as an aspirant, cannot be heard to complain on the conduct or outcome of the election.” See page 825 lines 25 to 28 of the Record of Proceedings (page 19 of the Ruling of the lower Court).
In line with the particulars of error outlined in page 871 of the Records that:-
1. The persons cleared by the 2nd Respondent to participate in the primary election of the party to elect its candidate for the 2012 Governorship election in Adamawa State purportedly held on the 24th October, is a matter of fact;
2. The Statement of Claim and witness Statement on Oath of the Appellant respectively contain averments and depositions that the Appellant was an aspirant in the Governorship primary election in Adamawa State for the 2012 Governorship election;
3. In the Preliminary Objection of the 1st Respondent (which is the basis of the Ruling appealed against), the issue of participation of the Appellant in the Governorship primary election purportedly held in Yola, Adamawa State on 24th October, 2011 was not raised.
4. The learned trial Judge raised the Issue of the participation suo motu
5. Parties never addressed the learned trial Judge on the issue.
6. It is on record that the Governorship primary election to nominate the candidate of the 2nd Respondent purported to have held in Yola, Adamawa State on was contested by two aspirants only, namely:-
(a) Admiral Murtala Nyako (Rtd.)
(b) Dr. Umar Ardo the Appellant
7. Admiral Murtala Nyako (Rtd.) – the 1st Respondent was not purported to have been elected unopposed”;
the learned Senior Counsel has referred us to the 1st paragraph of the Appellant’s Statement of Claim and the documents annexed to the originating processes as I had earlier said at page 8 of the Records. Paragraph of the Appellant’s Statement of Claim where he averred that;
“1. The Plaintiff is a Politician and bona-fide member of the Peoples Democratic Party (“the 2nd Defendant”) in Adamawa State and on aspirant to be nominated the candidate of the 2nd Defendant in the 2012 Gubernatorial Election in the State.” See also paragraphs 3 and 7 of the Statement of Claim.
As regards the documents he pleaded to support the above averment the Appellant in paragraphs 2, 6, 10, 11 of the Statement of Claim had mentioned that he holds PDP membership Card No.7229215 (page 128 of the Records refers); he completed and returned on 14th October, 2011 the Expression of Interest Form Code PD002/G for nomination as candidate of the 2nd Respondent for the Governorship Election 2012, in Adamawa State (pages 20 – 23 of the Records refer); on the same 14th October, 2011, he completed and submitted to the 2nd Respondent the Nomination Form Code PD003/G for nomination as the Candidate of the 2nd Respondent for the 2012 Gubernatorial Election in the State (see pages 24 – 39 of the Records) and on the 17th day of October, 2011, he was screened and cleared and a Clearance Certificate issued to him by the 2nd Respondent to participate in the Gubernatorial Primary for the nomination or selection of the candidate of the 2nd Respondent for the 2012 Gubernatorial Election in Adamawa State (see page 40 of the Record of Appeal).
I have also taken a cursory look at the Witness Statement on Oath of the Appellant which reveals that it is a replica of the averments in the Statement of Claim and there is nothing to show that the Appellant pleaded participation at the primary election for selection and nomination of the candidate of the 2nd Respondent for the 2012, Gubernatorial Election in Adamawa State. However, this is not a plus for the Appellant as the issue of participation ought to have been pleaded by him since participation of an aspirant at the primary election is a sine qua non to imbue him with the requisite vires under Section 87(1) and (9) of the Electoral Act (as amended) to challenge the primary election on any of the Grounds stated in Section 87(9) of the Act.
Ordinarily, it would appear from the provision of Section 87(1) of the Act, that there could not have been a better Aspirant than the Appellant who averred in the paragraphs of the Statement of Claim as highlighted earlier on, that he was a card carrying member of the 2nd Respondent who as an aspirant filled the Expression of Interest Form along with the Nomination Form and submitted them and was subsequently screened and cleared by the 2nd Respondent and a Clearance Certificate issued to him to contest the primary election aforesaid. Surely he would have been right to claim that he was and Aspirant properly so called.
However, by virtue of the interpretation given to sections 87(1), 87(4) (b) (ii) and 87(9) of the Electoral Act (see for instance the recent cases of Emeka v. Okadigbo (supra) at 88 paras. F – C relying on Onuoha v. Okafor (1983) 2 SCNLR; Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310; PDP v. Sylva (2012) 13 NWLR (pt. 1316) 85 and Emenike v. PDP (2012) 12 NWLR (pt. 1315) 556; where the Supreme Court-re-emphasized that only an Aspirant/Candidate who partook in such a primary election and is aggrieved can complain before the Court); where as in this case, the Appellant did not take part in the primary election conducted by the National Executive Committee of the Peoples Democratic Party (the 2nd Respondent herein) which was won by the 1st Respondent, the Appellant was not an aspirant in the eyes of the law and therefore could not have invoked the provision of section 87(9) of the Electoral Act to challenge the outcome of that primary election of 24th October, 2011 for the nomination of the party’s flag bearer for the 2012 Gubernatorial Election. In fact by the averments in Paragraph 1 of the Appellant’s Statement of Claim alone, the case of the Appellant collapsed and was aborted from inception in that he was merely a person striving or seeking to be nominated a candidate at the primary election of the 2nd Respondent.
From the foregoing authorities, it has become clear as was rightly submitted by the learned Counsel for the 1st Respondent that it is one thing to parade oneself as an aspirant who aspires and strives as the Appellant had done by the expression of his strong desire to achieve the position of the candidate of the 2nd Respondent at the last Gubernatorial Election but it is another kettle of fish to be an aspirant properly so called. In other words, he can only be categorized as a candidate at the primary election for the nomination or selection of the gubernatorial flag bearer of the 2nd Respondent by actually participating by way of contesting the primary election. Thus to qualify as an Aspirant properly so-called, there must be a combination of aspiration and the actual contest of the election for the candidacy of the 2nd Respondent for the Gubernatorial General Election.
In my humble opinion, by the decisions of the Supreme Court in the cases cited above, the Court below could infer from the pleadings in the Appellant’s Statement of Claim whether he participated at the primary election or not; as it is now a matter of law, that for a party to ignite the jurisdiction of the Courts mentioned in section 87(9) of the Electoral Act, 2010; he must not only plead that he was an aspirant for the candidature of his party at an election but he must go further to plead that he participated in the primary election for that candidacy in order for him to be seized of the cause action to challenge the party’s primary election for the purpose.
My position is buttressed by the decisions of the Supreme Court and this Court in the cases cited by the learned Counsel for the 1st Respondent. For the avoidance of doubt, in Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 388 para. H, to page 589 paras. A – C, Tobi, JSC; delivering the lead judgment of the Supreme Court posited inter alia:-
“There is a common agreement that in the determination of jurisdiction, the Court process to be used is the pleadings of the Plaintiff, which is the Statement of Claim. As this action is commenced by originating summons, the Court process to be used is the affidavit in support of the originating summons in other words, the Court will not examine a counter-affidavit even if filed……… Put differently, it is the case put forward by the Plaintiff that determines the jurisdiction of the Court. See Nnonye v. Anyichie (2005) 8 WRN 1 at 22 (2005) 2 NWLR (pt.910) 623; NDIC v. CBN (2002) 18 WRN 1 (2002) 7 NWLR (pt.910) 623; Elabanjo v. Dawodu (2006) 15 NWLR (1001) 76; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530 at 555 – 556, Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 at 51; Tukur v. Governor of Gongola State (1989) ALL NWLR 579 at 559 (1989) 4 NWLR (pt. 117) 517 and Egbuonu v. BRTC (1997) 12 NWLR (pt. 531) 29 at 43.”
Ogunbiyi, JCA (as he then was); supporting the view above expressed by Emeritus Judicial Icon; intoned in the case of C.S. INC. v. M/T Cindy Gala (2007) 4 NWLR (pt. 1024) 222 at 243 paras. C – D; that it is trite law that the determinant of jurisdiction of the Court squarely lies on the Statement of Claim and not on the Statement of Defence. The learned Law Lord (now of the apex Court) further held that: “Therefore the determination of whether the Appellant’s Claim at the lower Court was cognizable in admiralty is dependent on the totality of the facts on the Statement of Claim. In other words, isolated and randomly picked paragraphs or even the Reliefs sought would not suffice to give a good picture of the totality of the claim.” In the case now on appeal, the learned trial Judge based his determination of the issue of jurisdiction on the totality of the process filed by the Appellant (the Statement of Claim) and found rightly, in my humble view, that there was nothing therein to show that the Appellant participated in the conduct of the primary election for the flag bearer of the 2nd Respondent as an aspirant and that a person who has not shown in his Statement of Claim that he participated in an election as an aspirant therefore cannot be heard to complain about the outcome of that primary election.
With the greatest respect to the learned Senior Counsel to the Appellant, the provisions of Section 87(1) and (9) of the Electoral Act 2010 are akin to Sections 137 and 138 of the Electoral Act 2010 which are replications of section 133 and 144 of the 2002 and 2006 Electoral Acts and provide for persons entitled to present election petitions and the Grounds for questioning election and by way of extrapolation we shall refer to cases that were decided on the basis of the provisions of the erstwhile Electoral Acts afore cited on determination of Election petitions. For instance section 137 (1) (a) of the extant Act, (then Section 133 (1) (a) thereof states that an election petition may be presented by one or more of the following persons:
(a) a candidate in an election;
(b) a political party that participated in the election.
In the case of Adebusiyi v. Oduyoye (2004) 1 NWLR (pt. 854) 406 at 437 and 439; Galadima, JCA (as he then was), quoted with approval the dicta of Uwaifo and Ayoola, JJSC; in Buhari v. Yusuf (2003) 14 NWLR (pt. 841) at 446, while interpreting Section 133 of the 2002 Electoral Act and held inter alia:
“Considering the exposition given by the learned Justices of the Supreme Court and the clear provision of Section 133(1) of the Electoral Act, 2002, it goes without saying that to qualify as a petitioner for the purpose of presenting an election petition; the petitioner must have contested the election he or she is challenging.
……………………………………….
The scope of the section cannot be extended. Since the word “candidate” has not been defined in the Act it could not be said to mean and refer to a person who had the intention to contest an election but who was not allowed to contest.”
See Obasanjo v. Buhari & Ors. (2003) 17 NWLR (pt. 850) 510 at 560; Okonkwo v. INEC & Ors. (2004) 1 NWLR (pt. 854) 242 at 294; Egolum v. Obasanjo & Ors. (1999) 7 NWLR (pt. 611) 355 at 410 to 411; Chief Ken Nnamani v. Chief Uche Nnaji & Ors. (1999) 7 NWLR (pt 610) 313 at 329 to 330;
See further P.P.A. v. INEC (2010) 12 NWLR (pt.1203) at 98 para E; where it was held that a candidate is an individual who was validly nominated by its party and that the mere proposal of the name of the candidate by a political party without more, does not amount to a valid nomination.
As for section 138 (1) (then Section 134(1) (a) to (d)) of the Electoral Act, it provides that: “An election may be questioned on any of the following grounds, that is to say-
(a) That a person whose election is questioned wo1 at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”.
For purposes of this appeal it would appear that from the Reliefs sought by the Appellant particularly Reliefs 1, 2 and 3 of the Statement of Claim which aver thus:
1. A DECLARATION that the procedure adopted by the 2nd Defendant for the nomination of the 1st Defendant as the Candidate of the Peoples Democratic Party for the 2012 Gubernatorial election in Adamawa State is in breach of:
a. The Plaintiff s constitutional right to fair hearing;
b. Sections 222 of the Constitution of the Federal Republic of Nigerian, 1999 (as amended); and
c. Paragraphs 2 and 3 of Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party mode pursuant to enabling powers in section 12.72(j) and 17.1 and 2 of the Constitution of the Peoples Democratic Party.
2. A DECLARATION that the breach of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the constitution of the Peoples Democratic Party (as amended); and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party renders the Gubernatorial Primary of the 2nd Defendant in Adamawa State held in Yola, wherein the 1st Defendant was nominated the Candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State invalid and void.
3. A DECLARATION that the procedure adopted by the 2nd Defendant in conduct of the Special Ward Congress to elect the Ad-Hoc Delegates that participated in the Gubernatorial Primary of the 2nd Defendant in Adamawa State on Monday, 24 day of October 2011 denied the Plaintiff of his right to be nominated the Candidate of the Peoples Democratic Party in the 2012 Gubernatorial election in Adamawa State”; the Appellant, may have suffered from the illusion that he had locus standi to challenge the primary election but as Ogunbiyi JCA (as he then was) posited while expounding and distinguishing section 133(1) (a) and (b) and section 134 (1) (b) which are in pari materia with section 137(1) (a) and (b) and section 138 (1) (d) of the Electoral Act 2002 which provided for parties to an election petition and the grounds for presentation of same election:
“It is apparent that while section 133 reproduced relates to persons entitled to present election petition, section 134 also reproduced supra, is in respect if ground for petition. The two are not one and the some but ore distinctively expressing two different situations. Section 134 as correctly positioned can only become relevant after the initiation pursuant to section 133. In other words, it is the party permitted per section 133 that can proceed upon section 134 to put forth, the grounds complained of.
Contrary to the Appellant’s bone of contention in my humble view therefore, the Act does not accord him right to present under section 134 (1) (d) as contemplated.”
From the decisions of the Supreme Court in the recent cases of Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (pt. 1275) 30 at 59 para. H to page 60 paras A – E; Emeka v. Okadigbo & 4 Ors. (2012) 18 NWLR 55 at 83 paras. D – F; PDP v. Timipre Sylva & 2 Ors/Timipre Sylva v. PDP & 2 Ors. (2012) 13 NWLR (pt. 1316) 85 at 126 paras. A – B and 147; and Lado v. CPC (supra), the Appellant did not even have the locus standi neither were the grounds stated in paragraph 47 (a) to (c) of his Statement of Claim cognisable under section 87(9) of the Electoral Act for him to challenge the primary of 24th October, 2011; since the Appellant did not participate in the primary election.
On another score, the learned Counsel for the 1st Respondent has rightly submitted in my view that the learned trial Judge was permitted in law to make an obiter comment in his Ruling and in any case as has been aptly observed, assuming the parties were given a hearing on this point the Ruling could not still have been in favour of the Appellant in that, in the first place apart from the fact that the Ruling or observation of the learned trial Judge was borne out of the pleadings and the case put forward, the Claims of the Appellant were not cognizable by section 87(9) of the Electoral Act even if it is conceded that the preliminary objection did not incorporate the question of non-participation of the Appellant at the Primary.
Again, I agree completely with the position taken by the learned Counsel for the 1st Respondent and on the authorities of Alhaji Yakubu Ent. Ltd. v. Omolaboje (2006) ALL FWLR (pt. 302) 113 at 120 paras. D – F and Amadi v. NNPC (2000) 10 NWLR (pt.674) 76 at 112 paras C – E; that there was no miscarriage of justice when the Court observed that the pleadings did not disclose that the Appellant was a participant at the primary that threw up the 1st Respondent as the 2nd Respondent’s candidate for the Gubernatorial Election of 2012. It is trite as was held in the first case that it is not in all cases where a court raises an issue suo motu that will result in the reversal of the decision reached by the Court as this Appellant was duly bound to convince this Court that there was miscarriage of justice, which he has not done.
In the instant Appeal, as has been held earlier, the learned trial Judge was only stating the obvious on the current state of our Law as far as the vexed issue of locus standi and subject matter of the Appellant’s Claim as well as the jurisdiction of the Court below to entertain a suit founded on section 87(9) of the Electoral Act are concerned. It seems to me beyond any iota of doubt that the Supreme Court had settled beyond peradventure on a couple of decided authorities this Issue of the locus standi of the Appellant to ignite the jurisdiction of the Courts under Section 87(9) of the Electoral Act, 2010; to the extent that the suit brought by the Appellant in the lower Court and the Appeal herein have become a mere academic exercise.
After examining the totality of the pleadings in the Statement of Claim, I am also of the candid opinion that the learned trial Judge’s observation on non-participation of the Appellant in the 2nd Respondent’s primary election for the selection or nomination of the 2nd Respondent’s Candidate for the 2012 Gubernatorial Election; was/is unassailable as no miscarriage of justice was occasioned the Appellant. Besides, the Appellant’s Claim at the lower Court being in the main on pre-primary election non-compliance, more especially as he had admitted by his pleading that he merely aspired to be nominated the candidate of the 2nd Defendant/Respondent in the 2012 Gubernatorial Election, the finding of the learned trial Judge cannot be faulted. In other words, his aspiration was merely inchoate he having not participated in the primary election.
This Issue shall therefore and is hereby resolved against the Appellant.
ISSUE NUMBER 3: “WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN ERROR IN CONSTRUING THE PROVISION OF SECTION 31(1) OF THE ELECTORAL ACT, 2010 (AS AMENDED) AS LIMITATION TIME WITHIN WHICH THE COURT CAN NULLIFY THE RESULT OF THE PRIMARY ELECTION OF THE 2ND RESPONDENT HELD ON THE 24TH DAY OF OCTOBER, 2011.”
Arguing this issue the learned Senior Counsel for the Appellant reproduced the Ruling of the learned trial Judge at page 829 of the Records and cited section 31(1) of the Electoral Act, 2010 (as amended) and also reproduced same in submitting that the section applies only to political parties and prescribes the time (60 days) deadline within which political parties must submit the list of candidates to contest the general election. We were then urged to hold that the learned trial Judge erred when he held that in view of section 31(1) of the Electoral Act, 2010, the Court lacks jurisdiction to order fresh primary election.
The learned Senior Counsel for the Appellant further submitted that when construing a statute, the Court must give effect to the clear and unambiguous words used in the statute; a consideration of the consequences of the words should not affect the interpretation of words if the meaning of the words are clear and unambiguous. He further took the view that the learned trial Judge expressed too much sympathy for the 2nd Respondent in determining the right of the Appellant to redress complaints a rising out of non-compliance with the Electoral Act, its Constitution, Guidelines and the 1999 Constitution in the conduct of Ward Congresses to elect Ad-hoc Delegates.
It was the learned Senior Advocate’s view that the learned trial Judge allowed the consequences of non-compliance with the 60 days deadline to becloud his judgment and in sympathy decided that if the primary election of the 2nd Respondent was nullified, the 2nd Respondent would not have the opportunity of participating in the general elections because they would be outside the 60 days, deadline for the submission of names of candidates for the general election. He observed still on this point and further took the view that under the new requirements of the Electoral Law in Nigeria, Section 87(10) thereof, ousts the jurisdiction of Courts from stopping primaries and the correlative duty on political parties is that if they take the risk of not complying with the Act, their Constitution Guidelines and the 1999 Constitution in the conduct of primary election, they do so at their own risk because “JUSTICE MUST BE DONE EVEN IF THE HEAVENS WILL FALL.”
He asserted that the decision of the learned trial Judge on section 31(1) of the Electoral Act is capable of restraining Courts from entertaining genuine complaints brought after the 60 days deadline which could have more devastating effect on the development of democracy in Nigeria than the restrictive interpretation given to section 87(9) of the Act. Finally we were urged to hold that the learned trial Judge’s interpretation of sections 31, and 87(9) of the Electoral Act do not reflect the clear and unambiguous words used in the Act. We were further urged to reverse the decisions of the learned trial Judge because of the negative effect it would have on the development of democracy in Nigeria.
In his response to the above arguments of the learned Senior Counsel for the Appellant, the learned Counsel for the 1st Respondent pointed out that from the claims of the Appellant in the lower Court, the Appellant instituted the suit thereat to set aside the primary election in which the 1st Respondent was selected or nominated by the 2nd Respondent as its candidate for 2012 Governorship election in Adamawa State and to order fresh primary election by the 2nd Respondent; hence the Court’s finding at page 829 of the Records now subject to appeal. The learned Counsel argued that it is not disputed that the time for submission of the list of nominated candidates by political parties had lapsed and there is nowhere in the Appellant’s Brief that the fact is disputed.
On the contention of the learned Senior Counsel for the Appellant that the learned trial Judge was in error when he held that he had no jurisdiction by virtue of the time lapse, we were urged to hold that the learned Senior Counsel for the Appellant had conceded that time within which political parties were to submit their list of candidates to the 3rd Respondent had lapsed by virtue of section 31(1) of the Electoral Act, 2010 which provision he also reproduced. It was therefore submitted that the purpose of the primary election was for nomination of a party’s candidate for an election but that in the instant case the orders sought from the Court was for the setting aside of the Primary which had already been conducted and that if as conceded by the Appellant that the time had elapsed, the implication therefore is that the orders sought, if granted, shall be in vain by virtue of section 31(1) of the Electoral Act. For this submission he placed reliance on ACB PLC v. N.T.S. (NIG) Ltd. (2007) 1 NWLR (pt. 1016) 596 at 625 para. H; to further contend that the Court would have been wrong to have assumed jurisdiction since the purpose of the orders sought would no longer be achieved.
On the submission by the learned Senior Counsel to the Appellant that section 31(1) of the Electoral Act applies to political parties only and not Courts, he submitted that laws are meant to be obeyed and accordingly the 3rd Respondent is bound to refuse to accept nominations from parties if made outside the prescribed time; and accordingly, it was not the duty of the Court below to grant reliefs that at the end will lead to ordering nomination that will no longer be accepted.
The learned Counsel further urged us to hold that the Court was not in error when it declined jurisdiction on the further ground that the time to make the orders claimed had lapsed. In so doing; we were urged to consider the provisions of section 35(5) and (b) of the Electoral Act which two provisions reveal that once the time for nomination of the candidates had elapsed the only action the Court can entertain is one seeking for an order disqualifying a party already nominated to the commission for supplying false information which the action of the Appellant is not. The Court, he finally submitted, rightly declined jurisdiction in the matter and even if it did not decline jurisdiction under section 31(1) of the Act, by virtue of issues l and 2, it could still have declined jurisdiction. He in conclusion urged us to dismiss the Appeal for lacking in merit and affirm the Ruling of the lower Court.
RESOLUTION
In the resolution of this Issue and upon a careful appraisal of the submissions of the respective learned Counsel for the parties, I must remark that the Relief Sought by the Appellant that necessitated the finding or holding of the Court below on section 31 (1) of the Electoral Act is Number 6 which was for: “6. An Order directing the 2nd Defendant to forthwith conduct fresh Gubernatorial Primary for the nomination of its candidate for the 2012 Gubernatorial Election in Adamawa State in accordance with the Constitution of the Federal Republic of Nigeria 1999 (as amended), and the Constitution of the People Democratic Party (as amended); and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party.”
In his Ruling at page 826 lines 21 – 25 to page 827 lines 1 – 17; the learned trial Judge had then posed the question: “the question to ask is whether I have the jurisdiction to make an order for the conduct of a fresh primary election of the Peoples Democratic Party for the purpose of selecting or nominating a candidate for election in view of the provisions of section 31(1) of the Electoral Act 2010. Section 31(1) of the Electoral Act provides that every political party shall not later than 60 days before the date appointed for general election under the provisions of this Act, submit to the Independent National Electoral Commission in the prescribed forms the list of the candidates the party proposes to sponsor of the elections.
It is clear to me that the time for submission of list of candidates for purpose of the election, the subject of these proceedings has lapsed by virtue of section 31(1) of the Electoral Act, 2010. This Court therefore locks jurisdiction to order for fresh primary election. Indeed such an order will not be of any benefit to the Plaintiff, as the Plaintiff will have nothing to gain thereby. Such an order as sought by the Plaintiff will only have the effect of excluding the Peoples Democratic Party from participating in the election, which I consider as unjust in the circumstance.
Since I do not have the jurisdiction to Order for a fresh primary election in view of section 37(1) it follows that I do not have the jurisdiction to nullify the result of the Primary election of 2nd Defendant held on the 24th October, 2011. It is therefore obvious to me that the reliefs sought by the Plaintiff in this proceeding are in law, incapable of being granted. Consequently for reasons of all that I have said, the Preliminary Objection by the 1st Defendant succeeds. I decline jurisdiction and the Plaintiff’s case is hereby struck out.”
In the determination of this issue it is necessary to restate the basic position of the law on the interpretation of statutes that the meaning of the statute or legislation is to be gathered from the plain and unambiguous words as used therein rather than from any notions which may be entertained as to what is expedient and just. The literary construction must be followed unless this will lead to manifest absurdity and inconsistency with the provision of the whole statute because it is a duty of the Judge to interpret the wordings of the statute and give them their appropriate meaning and effect. See Ugwu v. Ararume (2008) 2 CCLR 215 at 262; (2007) 12 NWLR (pt. 1048) 367 at 437 paras.C – D.
Emphasizing the above principle, Tobi, JSC; in the above cited case, remarked inter alia:
“The main object of interpretation of statute is to discover the intention of the lawmaker, which is deducible from the language used. And so where the language of a statute is plain, clear and unambiguous, the duty of the Court is to interpret the language in its strict grammatical meaning to covey the intention of the lawmaker. Chief Awolowo v. Alhaji Shagari (1979) 6 – 9 SC 51; Ojokolobo v. Alamu (1987) 5 NWLR (pt. 61) 377; PDP v. INEC (1999) 11 NWLR (pt. 626) 200; Adewunmi v. A.G. Ekiti State (2002) 2 NWLR (pt. 751) 474; referred to, per Tobi, JSC in Abubakar v. Yar’adua (2008) 19 NWLR (pt. 1120) 1 at 132 at paras. E – F”.
Going by the dicta of the emeritus Justice of the apex Court in the above cited cases, I am of the candid view that the language of section 31 (1) Electoral Act 2010 (as amended), is clear and devoid of any ambiguity and without much ado, we shall construe it in its simple, grammatical sense and give the provision its literal meaning in order to convey the intention of the legislature. Upon a careful scrutiny of the section of the Electoral Act in question, it is clear to me that it merely sets a time limit within which a political party or parties shall submit the lists of their sponsored candidates to the Independent National Electoral Commission 60 (sixty) days before the appointed date for the general election. With the greatest respect to the learned counsel to the 1st Respondent the section therefore does not derogate from section 87(9) of the Electoral Act which in any case impinges on any other provision of the Act, the Constitution of the 2nd Respondent and the Guidelines for Primary Elections of the 2nd Respondent. In other words, section 31 of the Electoral Act does not preclude the Court from intervening and redressing breaches of the Act, the Constitution and Guidelines of the 2nd Respondent by political parties in the conduct of their primaries where an aspirant invokes section 87(9) of Electoral Act to challenge such breaches since the section 31(1) is subordinated to 87(9) of the Electoral Act.
There is no doubt as submitted by the learned Counsel for the 1st Respondent on the authority of ACB PLC v. N.T.S. (NIG) Ltd. (2007) 1 NWLR (pt. 1016) 596 at 635 para H; that a Court of law does not make orders in vain. See Ekpenyong v. & 3 Ors. v. Nyong (1975) 2 S.C. (reprint) 65; where Ibekwe, JSC (of blessed memory); stated the position of the law thus: “It is settled law that a Court of justice will not issue an order which is unenforceable. See Ukejianya v. Uchendu, 13 WACA 45; it seems to us though, that there is yet need for us to restore this principle of law which is also a rule of prudence. We take the view that the Courts are not in the habit of making orders which would be ineffective, impotent or abortive. Like nature, the Courts should do nothing in vain.” See Okey Achike, JCA (as he then was); in C.C. (Nig.) Plc v. Okpala (1997) 8 NWLR (pt. 518) 22, paras. D – G; who on his part posited still on this principle of law that: “It is certainly the law that a Court cannot make an order in vain.”
In the instant case the learned trial Judge was definitely in error when he held as he did that he had no jurisdiction to order for fresh primary election because the time for submission of the list of candidates of 2nd Respondent for the 2012 gubernatorial election had lapsed by virtue of section 31(1) of the Electoral Act. He was also unnecessarily generous or benevolent to the 2nd Respondent when he held that the Plaintiff had nothing to benefit from the order of fresh election but rather that such an order would only have the effect of excluding the 2nd Respondent from participating in the general election.
Nothing is further from the truth on the position taken by the learned trial Judge as section 31(1) of the Electoral Act does not preclude him from declaring as void, the primary conducted by the 2nd Respondent which resulted in the submission of the 1st Respondent’s name as her candidate for the 2012 Gubernatorial Election to 3rd Respondent/INEC; where it was established that there was a breach of the Electoral Act, the party Constitution and the Guidelines for the conduct of the 2nd Respondent’s primary election for the selection and nomination of their Gubernatorial candidate for the 2012 election (assuming the Appellant had the requisite locus standi to challenge the primary election) now the subject of this Appeal.
Again by the provision section 87(9) of the Electoral Act, if the primary election were to be nullified and voided, the maxims of the law which are that “ubi jus ibi remedium” or (where there is a right there is remedy) or put differently “ubi culpa est ibi poena subesse debet” (where the fault is, there the punishment should be); should apply mutatis mutandis for the learned trial Judge to order for fresh election. This is because as the learned Senior Counsel for the Appellant has rightly submitted, since the Court by virtue of section 87(10) of the Electoral Act 2010, cannot stop the conduct of a political party primary election upon the complaint of an aspirant, the political party ought to observe strict compliance with the Electoral Act, her Constitution and Guidelines for the conduct of primary elections, otherwise, the Courts’ jurisdiction if rightly ignited by section 87(9) of the Electoral Act can intervene to set aside such a primary and the nomination of a candidate upon the breach of the provisions of the Act, the rules and Guidelines for the conduct of the Primary.
To put paid to the erroneous contention of learned Counsel for the 1st Respondent in citing section 31(5) and (6) of the Electoral Act on the filing of a suit by a person with the reasonable belief that false information has been given by a candidate in the affidavit accompanying his personal particulars, and the disqualification of such a candidate if the Court determines the falsity of such information; such a submission is inconsequential to the issue at stake since this issue deals with the time limit within which a candidate’s name shall be submitted by a political party sponsoring him at an election. In any case by the decision in Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227; per Oguntade, JSC; at pages 318 – 319; the question has been settled as to whether a Court can declare the rightful candidate of a political party after the party had submitted the name of her candidate and there arises an intra party dispute as in this case.
The learned Emeritus Justice of the apex Court after observing that as at the time the suit was brought to Court the question of who or which party or candidate would win the Governorship election in Rivers State was irrelevant and that the issue at stake then was which candidate would run under the platform of the PDP; he then went on to chip in the clincher as far as the submission of the 1st Respondent’s Counsel and the Ruling of the Court below on section 31(1) of the Electoral Act at page 319 paras. B – C of the Report are concerned thus:
“The Court must not shut its mind to the fact that the party wins or loses the election. The duty of the Court is to answer the question which of the two contending candidates was the validly nominated candidate for the election. It is a purely on irrelevant matter whether the candidate in the election who was improperly allowed to contest wins or loses. The candidate that wins the case on the judgment of the Court simply steps into the shoes of his invalidly nominated opponent whether as winner or loser.” See Akpan v. Bob (2010) 17 NWLR (pt.1223) 421; per Onnoghen, JSC; Saulawa v. Kabir (2011) 2 NWLR (pt. 1232) 417 at 440 paras.C – D. From the foregoing decisions therefore, assuming that the Appellant had the requisite locus standi and the Court below the jurisdictional competence to entertain the suit, if the Appellant succeeded to prove his case, then the learned trial Judge had no other alternative than to invalidate the primary election and nomination nay the candidacy of the 1st Respondent and a fresh primary ordered whereby either the Appellant will step into the shoes of the 1st Respondent or the 1st Respondent would be re-elected in which case he try go back to continue his tenure as the Governor of Adamawa State.
I reiterate that all the submissions of the learned Counsel for the 1st Respondent and indeed the holding of the Court below on section 31(1) of the Electoral Act are mere academics and grand standing tales full of sound and fury, but signifying nothing. If we go by the arguments of learned for the 1st Respondent on this issue, then great violence would have been done to the provision of section 87(9) of the Electoral Act and manifest absurdity would have resulted as to its purport, thus, rendering the section otiose. On the whole, l am tempted to agree with the learned Senior Counsel for the Appellant to some extent that if Section 31(1) of the Electoral Act is construed as done by the learned Counsel for the 1st Respondent, then aspirants will unnecessarily be shut out from ventilating their grievances against breaches of the Electoral Act, the Party Constitution and the Guidelines for the conduct of primaries by political parties.
The above notwithstanding, since on the first and second Issues, the Court below had rightly found that the Appellant lacked locus standi to institute the action and thus stripping the Court of its jurisdiction; the Ruling of the Court which is the subject matter of this Issue is neither here nor there as I agree that the 1st Respondent’s Preliminary Objection was meritorious and accordingly succeeded. Issue Number 3 is hereby resolved against the Appellant.
The learned trial Judge therefore rightly struck out the Appellant’s suit for want of jurisdiction and the consequences were/are that he could not have granted any of the reliefs sought by the Appellant including the invalidation of the primaries which threw up the 1st Respondent as the candidate of the 2nd Respondent at the 2012 Gubernatorial Election. In the same vein, the learned trial Judge could not have ordered the conduct of a fresh primary election even though he arrived at that decision by the wrong reason of the expiration of sixty days (60) within which to submit the list of candidates of political parties for the general election which had long been concluded. This Appeal therefore lacks merit and is accordingly dismissed. I affirm the Ruling of Hon. Justice S. M. Shauibu of the Federal High Court, Yola Division, in suit No.FHC/YL/SC/50/2011; delivered on the 20th day of January, 2012; with no order as to costs to any of the parties.
SOTONYE DENTON-WEST, J.C.A.: I have had the opportunity of reading in draft the well researched and articulated Judgment just delivered by my brother the Hon. Justice Ignatius Igwe Agube (JCA). In his characteristic manner, he has left no stone unturned in dealing with the issues raised in the Appeal No.CA/YL/15/2012 consolidated with the Cross Appeal No.CA/YL/21/2072.
In his usual disposition of issues, he advanced his arguments and reasoning’s for each resolution of the issue being determined, which I accord with, although from this viewpoint hereunder produced.
This is an appeal against the decision of Hon. Justice S. M. Shuaibu of the Federal High Court Yola delivered on 13th January, 2012.
The Appellant as Plaintiff through his Counsel, Dipo A. Okpeseyi, SAN filed a writ of summons dated 2nd day of November, 2011 at the lower court against the Respondents/Defendants seeking for the following reliefs:
1. A declaration that the procedure adopted by the 2nd Defendant for the nomination of the 1st Defendant as the candidate of the People’s Democratic Party for the 2012 Gubernatorial Election in Adamawa State is in breach of:
a. The Plaintiff’s constitutional right to fair hearing.
b. Section 222 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and;
c. Paragraphs 2 and 3 of the Electoral Guidelines for primary elections 2010 of the People’s Democratic Party made pursuant to enabling parties in Section 12.72(j) and 17.1 and 2 of the constitution of the People’s Democratic Party.
2. A declaration that the breach of the constitution of the Federal Republic of Nigeria, 1999 (as amended), the constitution of the People’s Democratic Party (as amended), and the Electoral Guidelines for Primary Election 2010 of the People’s Democratic Party renders the Gubernatorial Primary of the 2nd Defendant in Adamawa State held in Yola, Adamawa State on Monday, 24th day of October, 2011 wherein the 1st Defendant was nominated the candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State invalid and void having denied the Plaintiff of his right to be nominated the candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State.
3. A declaration that the procedure adopted by the 2nd Defendant in the conduct of the special ward congress to elect the Ad-hoc delegates that participated in the gubernatorial primary of the 2nd Defendant in Adamawa State on 24th day of October, 2011 denied the Plaintiff of his right to be nominated the candidate of the People’s Democratic Party in the 2012 gubernatorial election in Adamawa State.
4. A declaration that there is no validly nominated candidate of the People’s Democratic Party for the 2012 gubernatorial election in Adamawa State.
5. An Order restraining the 3rd Defendant from using, and/or acting on the result declared by the 2nd Defendant as its gubernatorial primary held in Yola, Adamawa State on Monday, 24th day of October, 2011 wherein the 1st Defendant was nominated the candidate of the 2nd Defendant in the 2012 gubernatorial election in Adamawa State.
6. An Order directing the 2nd Defendant to forthwith conduct fresh gubernatorial elections in Adamawa State in accordance with the constitution of the Federal Republic of Nigeria, 1999 (as amended), the constitution of the People’s Democratic Party (as amended) and the Electoral Guidelines for the primary elections, 2010 of the People’s Democratic Party.
Before the matter was set for hearing, the 1st Defendant/1st Respondent filed a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the court. The lower court delivered a ruling on the preliminary objection declining jurisdiction and consequently struck out the matter.
The Plaintiff/Appellant not being satisfied with the said ruling filed a notice of appeal before this court.
The parties filed and exchanged their respective briefs of argument.
The Appellant in his brief of argument dated the 6th day of March, 2012 and filed on 9th day of March, 2012 submitted the three issues for determination viz:-
1. Whether the learned trial Judge was not in error when he held that the provisions of subsections (9) and (10) of section 87 of the Electoral Act, 2010 have not made provision to confer jurisdiction on the court in respect of complaint on matters that occurred before the conduct of primaries?
2. Whether having raised suo motu the issue of the participation of the Appellant in the primary election conducted on the 24th day of October, 2011 to nominate the candidate of the 2nd Respondent in the 2012 Governorship Election in Adamawa State, the learned trial Judge was not in error in failing to invite the parties to address him on the issue before reaching a decision on it?
3. Whether the learned trial Judge was not in error in construing the provisions of section 31(1) of the Electoral Act, 2010 (as amended) as limitation time within which the court can nullify the result of the primary election of the 2nd Appellant held on the 24th day of October, 2011 to nominate its candidate for the 2012 Governorship Election in Adamawa State.
The 1st Respondent in his own brief of argument dated and filed on the 18th day of June, 2012 formulated the following three issues for determination.
1. Whether the circumstances upon which the jurisdiction of the Federal Court can be invoked were present in the suit and if not whether the court below was right when it held that the complaints of the Appellant were not envisaged on the provisions of section 87(9) and (10) of the Electoral Act, 2010.
2. Whether the decision of the court below that a person who has not shown that he participated in an election as an aspirant can be heard to complain in the conduct or outcome of the election and the finding that the processes filed by the Appellant do not show that the Appellant participated in the primary election and that there was a miscarriage of justice?
3. Whether a court can make an order in vain and, if it cannot, whether the court below was in error when relying on the provisions of sections 31(1) of the Electoral Act, 2010 it held that it lacked the jurisdiction to entertain the suit.
I have carefully read through the issues formulated by the parties in this appeal in their various briefs of argument including the Appellant’s reply brief and it appeals to me to adopt the Appellant’s issues for being encompassing in the determination of this appeal. Thus, the issues for determination in this appeal are:
1. Whether the learned trial Judge was not in Error when he held that the provisions of subsections (9) and (10) of section 87 of the Electoral Act, 2010 have not made provision to confer jurisdiction on the court in respect of complaint on matters that occurred before the conduct of primaries?
2. Whether having raised suo motu the issue of the participation of the Appellant in the primary election conducted on the 24th day of October, 2011 to nominate the candidate of the 2nd Respondent in the 2012 Governorship Election in Adamawa State, the learned trial Judge was not in error in failing to invite the parties to address him on the issue before reaching a decision on it?
3. Whether the learned trial Judge was not in error in construing the provisions of section 31(1) of the Electoral Act, 2010 (as amended) as limitation time within which the court can nullify the result of the primary election of the 2nd Appellant held on the 24th day of October, 2011 to nominate its candidate for the 2012 Governorship Election in Adamawa State.
APPELLANT’S ARGUMENT ON THE ISSUES
ISSUE No. 1
Whether the learned trial Judge was not in error when he held that the provisions of subsection (9) and (10) of section 87 of the Electoral Act, 2010 have not made provision to confer jurisdiction on the court in respect of complaint on matters that occurred before the conduct of primaries?
The learned Appellant’s counsel Dipo Okpeseyi (SAN) submitted that sections 87(9) & (10) of the Electoral Act 2010 (as amended) provides thus:
Section 87(9) of the Act:
“Notwithstanding the provisions of the Act or rules of a political party, on aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress”
Section 87(10) of the Act:
“Nothing in this section shall empower the courts to stop the holding of primaries or general election under this Act pending the determination of a suit”
It was submitted that the law maker from the words used in subsections 87(9) of the Act did not intend to distinguish between complaints against actions or inactions that occurred before or in conducting primary election. That it must be conceded from the beginning that the construction of subsection 87(9) of the Act depends on the facts of each case and the complaints of the Appellant as summarized in paragraph 47 of his statement of claim at page 15 of the record, wherein he averred:-
“The Plaintiff states that the Gubernatorial Primary of the 2nd Defendant held in Yola, Adamawa State on Monday, 24th October, 2011 wherein the 1st Defendant was nominated the Candidate of the 2nd Defendant in the 2012 Gubernatorial election in Adamawa State is invalid and void by reason of:
a. The discriminatory membership revalidation exercise carried out by the Adamawa State Chapter of the 2nd Defendant in October, 2011 where in known supporters of the Plaintiff were refused membership revalidation;
b. The refusal to issue and/or sell Delegate Nomination Forms of the 2nd Defendant to known supporters of the Plaintiff thereby denying them opportunity to be elected Ad-Hoc Delegates to participate in the nomination of the Candidate of the 2nd Defendant in the 2012 Gubernatorial election in Adamawa State at the Gubernatorial Primary held in Yola, Adamawa State on Monday, 24th day of October, 2011;
c. Lack of valid notice to the Plaintiff, as an aspirant, or to his Campaign organization or supporters of the date of the Ward Congress of the 2nd Defendant purported to have held on the 21st day of October, 2011.”
The gravamen of the Appellant’s complaint is that the 2nd Respondent failed to comply with the provisions of the Act, the Constitution of the 2nd Respondent, Electoral Guidelines as well as the 1999 Constitution in the conduct of the Ward Congresses held on the 24th day of October, 2011 in Adamawa State to elect the three Ad-Hoc Ward Delegates to participate in gubernatorial primary election in Adamawa State.
That since 1999, complaint about absence of internal democracy in the conduct of party primary elections to nominate the candidates of political parties to contest elections has being a difficult and notorious issue and commenting on the notoriety of the issue Oguntade, JSC in Ukwu v. Ararume (2007) 12 NWLR (pt.834) pg. 1 at 30 said:-
“An observer of the Nigerian Political Scene today easily discovers that the failure of the parties to ensure intra-party democracy and live by the provisions of their constitution as to the emergence of candidates for elections is one of the major causes of the serious problems hindering the enthronement of a representative Government in the country. If a political party was not to be bound by the provisions of its Constitution concerning party primaries, why would there be the need to send members of the parties aspiring to be candidates for an electoral office on a wild goose chase upon which they dissipate their resources and waste time. Would it not have made better sense in that event for the political parties to just set out the criteria for the emergence of their candidates for electoral offices and then reserve to themselves (i.e. the parties) the ultimate power to decide who should contest and who should not…”
It was submitted that it was to stem the culture of impunity by political parties in the process of conducting primary election, in 2110, that the National Assembly amended the Electoral Act to introduce section 87 of the Act. That specifically, subsection 87(7) of the Act provides that:-
“A political party that adopts the system of indirect primaries for the choice of its candidates shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting in addition to delegates already prescribed in the constitution of the party”.
That it was in compliance with subsection 87(7) of the Act that the National Executive Committee of the 2nd Respondent in exercise of powers conferred on it by Articles 12.72 (j) and 17.1 and 2 of the party Constitution issued detailed provisions for the procedure for election of three (3) Ward Ad-Hoc Delegates under Paragraphs 2 and 3 of Part 1 of the Electoral Guidelines for primary Elections, 2010 of the People’s Democratic Party (“the Guidelines”).
It was argued that strict compliance with the procedure outlined in paragraphs 2 and 3 of Part 1 of the Guidelines for the conduct of Ward Congresses is mandatory and a condition precedent for the conduct of a valid Congress for the Gubernatorial Primary Election. That Ward Congress is the foundation upon which the special State Congress i.e. the party primary to nominate the gubernatorial candidate of the party at the general election is built.
It was submitted that the learned trial Judge failed to give due consideration to the mischief for which the amendment in subsections 87(7) and 87(9) of the Act were enacted. That rather than confront the mischief the learned trial Judge in his ruling at pages 824 – 825 of the Record declined jurisdiction on the ground that the complaints of the Appellant deals with actions or inactions of the 2nd Respondent that occurred before the conduct of the party primary election.
It was submitted that the decision of the learned trial Judge to the effect that subsection 87(9) of the Act does not contemplate complaints of an aspirants (the Appellant) arising from actions or inactions of the 2nd Respondent which occurred before or prior to the conduct of primary election failed and/or refused to appreciate that there is a procedure set out in the Guidelines for conducting the Ward Congresses which takes place before the primary election, and that compliance with the procedure in the Guidelines is mandatory and a condition precedent to conducting a valid primary election.
It was argued that the learned Senior Advocate for the 1st Respondent in paragraph 3.10 of his written address at page 376 of the record narrowed down and misconceived the interpretation of subsection 87(9) of the Act to the words in the selection or nomination of a candidate’ which according to him suggests that the jurisdiction of the court can only be invoked where in selecting or nominating its candidate, a party fails to comply with the provisions of the Act and its guidelines which the learned trial Judge in his ruling at page 223 to 224 of the Record adopted in toto.
It was argued that if only delegates are entitled to participate at the primary election of the 2nd Respondent to nominate its candidate for election, it follows that complaints of non-compliance with the procedure for electing the delegates that are involved in conducting the primary election are justiciable under section 87(9) of the Act. Further that the conduct of primary election is a process not an event and the process involves several stages outlined in Subsection 87(7) of the Act and Paragraphs 2 and 3 of part 1 of the Guidelines.
It was argued that the law maker could have omitted the adjective ‘democratic’ from qualifying the ‘election of delegates’. But it is added to create special effect, and it is expected that the courts will give that special effect in interpreting subsection 87(9) of the Act.
That commenting on the essence of ‘democratic elections’ Aniagolu (JSC), in Ojukwu v. Onwudiwe (1984) 15 N.S.C.C. 172 at 200 said:-
“The essence of democratic elections is that they be free and fair and that in that atmosphere of freedom, fairness and impartiality, citizen will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who in their deliberate Judgment, they consider possess the qualities which mark them out as preferable candidates to those others who are contesting with them. The voters must be allowed to freely go to the polling booths and cast their votes unmolested. Free and fair elections cannot, therefore, tolerate thuggery or violence of any kind…”
Also that the complaints of the Appellant raised prima facie case of noncompliance with the provisions of the Act, the Constitution of the 2nd Respondent, the Guidelines and the 1999 Constitution which is sufficient to entitle him to seek redress from the court under subsection 87(9) of the Act.
It was canvassed the situation in this case would have been different if the court assumed jurisdiction but ruled that the Appellant failed to substantiate his complaints by credible evidence; but, to deny him access to court to ventilate his grievances solely on the ground that his complaint relates to actions and inactions of the 2nd Respondent that occurred ‘before’ or ‘prior to’ the conduct of primary election occasioned substantial miscarriage of justice against the Appellant and the case ought to be tried on its merit. This court was urged to hold.
It was submitted that Nigerian courts must continue to identify the mischief sought to be remedied by the amendment in subsection 87(9) of the Act and endeavor to prevent all forms of abuses perpetrated in the conduct of primary elections whether they occurred before or in conducting the primary election. The goal according to the learned counsel should be to stamp out all forms of abuses of the electoral processes notwithstanding the stage at which it occurred.
It was further submitted that the canon of interpretation required for the Electoral Act, 2010 (as amended) is the same as the canon of interpretation required for the 1999 constitution. This is because the Electoral Act is a subsidiary legislation which operates side by side with the 1999 constitution. Both the constitution and the Electoral Act must be read together in order to give effect and meaning to the rights and obligation of individuals. He referred to Action Congress v. INEC (2007) 12 NWLR (pt. 1048) 220, A.G. Bendel v. A.G. Federation (1982) 3 NCLR, 1 and Global Excellence Communication Limited v. Donald Duke (2007) 16 NWLR (pt.1059) 22:
That from the above the learned trial Judge failed to apply the proper canon of interpretation of the Electoral Act, 2010 (as amended) to give effect to its purpose and to achieve the purpose of the amendments in the Act, the words used should not to be read with stultifying narrowness, as suggested by the learned Senior Advocate for the 1st Respondent and adopted by learned trial Judge in his ruling.
The case of generally Buhari and Anor. v. Obasanjo and Ors. (2005) 13 NWLR (Pt. 947) 1 (219) was referred to.
It was submitted that the reading of an enactment should not be in a way as to deny a litigant access to court. Also that a person’s access to the law court may be taken away or restricted by statute, the language of such statute must however be carefully scrutinized by the courts and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension. Onwuchekwa v. NDIC (2002) 5 NWLR (pt.760) 371; Federal Republic of Nigeria v. Odua Investment Co. Ltd. (2002) 5 NWLR (pt.761) 615 were cited in support.
This court was urged to resolve this issue in favour of the Appellant.
On his own part, the learned senior counsel for the 1st Respondent submitted that from the Appellants pleadings and reliefs in the statement of claim, it is apparent that what the Appellant challenged at the court below was the selection or nomination of the 1st Respondent as the 2nd Respondents gubernatorial candidate for the 2012 Governorship election in Adamawa State. That the 2012 governorship election has since been conducted on the 4th day of February, 2012 and the 1st Respondent having won majority of the lawful votes cast at the election and having fulfilled all the constitutional requirements was declared and or returned elected on the 5th day of February, 2012. He has since been sworn in as the Governor of Adamawa State. That prior to the enactment of the Electoral Act, 2010 the question of nomination and sponsorship of candidates for a political office by a political party was the exclusive preserve of the political Party and the court did not have the jurisdiction to entertain disputes arising from the selection or nomination of candidates for election. Thus, disputes relating to selection or nomination of candidates were considered matters purely within the domestic domain of the political parties in respect of which the courts cannot adjudicate. Judicial authorities are very clear on this point.
The learned counsel cited Abudulkadar v. Mamman (2003) NWLR (Pt.834) 1 at 30, where Oyedemi, JCA held as follows:-
“The 2nd Defendant is a political party, the issues in the suit relate to internal affairs of the 2nd Defendant, so the court has no jurisdiction to adjudicate on it. The plaintiff has not exhausted the internal dispute resolution mechanism of the PDP. In Nigeria the practice of the courts is not to run Associations, Corporations and unincorporated Association for the members. The court leaves the members to run the Associations. A court of law lacks the power/jurisdiction to adjudicate over intra party contest. Intra party governance is entirely within the province of the relevant party.”
“Intra party governance is entirely within the province of the party. In other words, the internal affairs of a political party are exclusive to the party and therefore not within the competence of the court, consequently, the court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in Election or to determine any dispute arising from the internal affairs of political party. In the instant case, the subject of the complaint and claim of the 1st and 3rd plaintiffs are related to the internal affairs of a political party. In the circumstance the trial court had no jurisdiction to determine same and ought to have struck out the suit.”
The Supreme Court put it more clearly in the recent case of Akpan v. BOB (2010) 17 NWLR (pt. 1223) 421 at 501, where Muhammad, JSC held thus:-
“There is no iota of doubt from the legion of decisions from this court and the court below, as well as from the electoral laws that the question of nomination and sponsorship of candidates for a political office by a political party is purely within the domestic domain of the political party in respect of which the court cannot adjudicate. That was the cardinal point rested upon by this court in Onuoha v. Okafor (1983) 2 SCNLR 244” (Underlining Ours).
Thus, it was not within the province of the courts to interfere in any dispute arising from the selection or nomination party candidates for election into public offices.
The situation changed when on the 4th day of August, 2010 the Electoral Act, 2010 was passed into law. By virtue of the Electoral Act, 2010, the courts now have the jurisdiction to determine matters relating to breach of the provisions of the Electoral Act and the Guidelines of political parties for primary elections. Section 87(10) of the Electoral Act, 2010 by which the jurisdiction was so conferred provides as follows:-
“Notwithstanding the provisions of the Act or rules of a political party, on aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or High Court of a State, for redress.”
Thus, by virtue of Section 87(10) of the Electoral Act, 2011, the courts now interfere in the affairs of a political party where in the selection or nomination of its candidate for election the party fails to comply with the provisions of the Electoral Act and party electoral guideline, given the above provisions, an aspirant who intends to invoke the jurisdiction of the court under Section 87(10) of the Electoral Act, 2010 must show that provisions of the Act and the Guidelines of the party were not complied with by the political party and that the non-compliance was in the selection or nomination of the party candidate for election i.e. in the conduct of the party primaries.
It follows from the above that complaints or circumstances that do not establish a breach of the provisions of the Electoral Act, 2010 and the Guidelines of a political party do not come within the category of complaints for which the jurisdiction of the court can be involved under section 87(10) of the Electoral Act, 2010. It follows also that a breach of provisions of the Electoral Act and the party Guideline cannot be the basis upon which the jurisdiction of the court can be invoked unless the facts before the court show that the breach was committed in the selection or nomination of a party candidate for election; as better put by section 87(9) of the Act, “in the conduct of its primaries”.
Thus Appellant’s pleadings ought to have shown two things if the jurisdiction of the court below must be invoked by him. The pleadings ought to have shown that the provisions of the Electoral Act, 2010 and the Electoral Guidelines of the party were breached by the 2nd Respondent and that the breach occurred in the selection or nomination of the candidate of the party for the governorship election, i.e. in the conduct of the governorship primary election.
Appellant’s complaints were not on acts that amount to a breach of provisions of the Electoral Act, 2010 and Guidelines of the 2nd Respondent.
As conceded by the Appellant at paragraphs 3.8 and 3.9 of the Appellant’s Brief of Argument, the complaints of the Appellant upon which the action was filed at the court below were summarized in paragraph 47 (a-c) of the Statement of claim as follows:-
“The Plaintiff states that the gubernatorial Primary of the 2nd Defendant held in Yola, Adamawa State on Monday, 24th October, 2011 wherein the 1st Defendant was nominated the candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa state is invalid and void by reason of:-
a. The discriminatory membership revalidation exercise carried out by the Adamawa State Chapter of the 2nd Defendant in October, 2011 in which known supporters of the Plaintiff were excluded.
b. The refusal to issue and or sell delegate Nomination Form to known supporters of the Plaintiff thereby denying them opportunity to be elected Ad-hoc delegates to participate in the nomination of the candidate of the 2nd Defendant in the 2012 Gubernatorial Election in Adamawa State at the Gubernatorial Primary held in Yola, Adamawa State on Monday, 24th day of October, 2011.
c. Lack of valid notice to the Plaintiff, as an aspirant, or to his Campaign Organization or supporters of the date of the Ward congress of the 2nd Defendant purported to have held on the 21st day of October, 2011.”
It was submitted that Neither the Electoral Act, 2010 nor the Guidelines of the 2nd Respondent imposes on the 2nd Respondent the persons whose membership must be revalidated by the 2nd Respondent as alleged by the Appellant. The 2nd Respondent cannot therefore be said to be in breach of provisions which do not exist either in the Electoral Act or the party Guidelines. That the Appellant did not show what provisions in the Electoral Act or Party Guidelines were breached by the manner membership revalidation exercise was carried out and there are no facts in the pleading to that effect and there cannot be any, there being no provisions either in the Electoral Act or the Electoral Guidelines of the 2nd Defendant as to how membership revalidation exercise should be carried out. Besides, there are no provisions in the Electoral Act or Guidelines to the effect that every member of the 2nd Respondent must have his membership revalidated. It was argued that the names of the known supporters of Appellant who were alleged to have discriminated against in issuance of delegate nomination forms were not mentioned supporters were not listed.
It was submitted that the framers of the Electoral Act, 2010 and the 2nd Respondent’s Party Guidelines understood quite well that if all members of the party or all supporters of a candidate are given delegates nomination forms the purpose of special ward congresses would be defeated as no member shall elect the other as delegates. Guided by that understanding, the framers avoided provisions which made it mandatory that all members of a Party or supporters of a candid be issued Delegates Nomination Forms. That it was sufficient that some of Appellant’s supporters were issued delegates nomination forms. More sufficient- was the fact that Appellant did not contend that the number of his supporters to whom delegate’s nomination forms were issued was not sufficient. That shows that Appellant was satisfied with the number of his supporters to whom the forms were sold.
Further that in any case, delegate’s nomination forms are issued only to party members and that is what the 2nd Respondent did. The issue as to who emerged as a delegate at the end of the day was left for the votes of all members of the party, including Appellant’s supporters, known and unknown.
It was further submitted that he third complaint of the Appellant as may be seen at paragraph 47(c) of his statement of claim is that he was not formally notified or given a “valid notice” of the shift of the date for special ward congress from the 20th of October, 2011 to the 21st day of October, 2011.
It is important to note that the Plaintiff’s complaint is not that he was not notified of the shift of date at all but that he was not given “valid notice”. The question is what constitutes valid notice in the circumstance? Is there any provision either in the Electoral Act, 2012 or Electoral Guidelines for primary Election, 2012 of the 2nd Respondent as to the type of notice which an aspirant and his supporter must be given of the date for congresses?
It was argued that nowhere in the Electoral Act, 2010 or in the 2nd Respondents Electoral Guidelines for Primary Elections, 2010 is provision made for any form of notice that must be given to each aspirant and his supporters of the date of special congresses. Also the Appellant did not state in his pleading what constitutes “valid notice” which he and his supporters were entitled to in the circumstance. Nor did he show that such notices were provided for either in the Electoral Act or in the 2nd Respondents Electoral guidelines. We submit that the Appellant having not shown that there was a provision for notices in the Electoral Act and the 2nd Respondents Party Guidelines which was breached, there was no basis upon which the court below would have assumed jurisdiction over the matter.
It was stated that the jurisdiction of the court can only be invoked under Section 87(10) of the Electoral Act where the acts of non-compliance complained of are in the selection or nomination of a candidate of a party for election. Not in the selection or nomination of ward delegates. Section 87(10) uses the words:-
“…in the selection or nomination of a candidate of a political party for election”.
That the application of the Latin Maxim “Expressiouniusest exclusion alterius” therefore becomes applicable in the circumstance. The maxim implies that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The express mention of specific things implies the exclusion of the things not mentioned.
The learned senior Advocate stated that in Ehuwa v. O.I.S.E (2006) 10 NWLR (Pt.1012) at 20 – 21 paras. E – C, Oguagu, JSC held as follows:
“It is now firmly established that in the construction of a statutory provision, where a statute mentions specific thing or person, the intention is that those not mentioned are not intended to be included. The Latin maxim is “expression uniusest exclusion alterius” i.e. the expression of one thing is the exclusion of another. It is also termed “inclusion uniusesteclusioalterius” or enumeration unius exclusion alterius”… In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue (underlining ours).”
See also ATT. GEN., Federation v. Abubakar (2007) All FWLR (Pt.375) 405 at 553; Paras, A – C, Aderemi, JSC.
In the circumstances, it was submitted that acts of non-compliance by a political party which are not “in the selection or nomination of a party candidate for election” or “in the conduct of party primaries” are excluded by section 87(10) of the Electoral Act, 2012.
There is no doubt that the activities of political parties entail series of selection or nomination of persons or candidates, some for certain post or positions within the political party and others to represent the party in general elections or in public offices. The jurisdiction the courts have to determine matters under Section 87(10) of the Electoral Act, 2010 can only be invoked where the acts of non-compliance complained of were in the selection or nomination of a party candidate for election in other words where the candidate to be selected or nominated is to represent the party in a general election. Not acts of noncompliance alleged to have taken place when delegates were to be selected.
Coming back again to the complaints of the Appellant, the question is whether the breaches were in the selection or nomination of a candidate of the party for election. Taking for instance the issue of revalidation of membership of the 2nd Defendant, can it be said that it was while selecting or nominating a candidate for election that some members were allegedly denied membership revalidation. The answer is in the negative and we urge the court to so hold. Membership revalidation exercise is not in any way tantamount to selection or nomination of a candidate.
Again, taking the complaint on denial of delegates nomination forms; was it in the selection or nomination of a party candidate for election that the delegates nomination forms were allegedly denied the persons. The answer also is in the negative. No nomination or selection of a party candidate was going on then. Instead the forms were being sold in preparation for the selection of ad hoc delegates. Ad hoc delegates were not candidates of the party for election. If selection or nomination of ad hoc delegates was not an exercise envisaged by section 87(10) of the Act, how much less the sale of delegates nomination forms, which was a prerequisite to the nomination of delegates. A breach of provisions relating thereto, if any, cannot therefore be a ground upon which the jurisdiction of the court can be invoked.
Finally, does shifting of dates for special congresses amount to selection and nomination of party candidate for election? The answer also is in the negative. If selection or nomination of delegates does not amount to selection or nomination of a candidate for election, how much less is the shifting of date for special ward congress in which the selection will be done?
From the forgoing it was submitted that the complaints of the Appellant, even if they amounted to acts of non-compliance of the provisions of the Electoral Act and the Electoral Guidelines of the 2nd Respondent, were not the type of complaints contemplated under section 87(10) of the Electoral Act, 2010 and that the Appellant failed to satisfy a fundamental requirement of section 87(10) of the Act. Particularly, he failed to show that the complaints upon which he sought to invoke the jurisdiction of the court were on acts which amounted to a breach of the provisions of the Act and the Electoral Guideline of the Party nor has he shown that the breach was in the conduct of the party primaries.
It was submitted that Appellant’s argument in paragraphs 3.10, 3.16 and 3.29 of his Brief of Argument shows that the Appellant now contends that the breaches complained of took place in the conduct of ward congresses and that the 2nd Respondent was in breach of what is outlined in paragraphs 2 and 3 of the said guidelines.
It is important to state here that paragraphs 2 and 3 of the guidelines provides for the conduct of the election of ad-hoc delegates who are not candidates for election into public offices. Specifically they provide that 3 delegates should be selected from each ward of the 2nd Respondent, one of which must be a woman. The said paragraphs make no provision for any of the complaints made by the Appellant at the court below. Specifically, they do not provide for membership revalidation exercise which was one of the complaints for the Appellant at the court below, or for sale or issuance of delegates nomination forms (how it should be done or as to whether all supporters of the Appellant must be issued or sold forms) or for what type of notice constitutes “valid notice” for purposes of congresses.
It was further submitted that Appellant’s case as now argued by the Appellant was never made at the court below and nowhere in the Statement of Claim is any of the provisions in the two paragraphs show to have been breached by the 2nd Respondent. That the reliance now being placed in this appeal on paragraphs 2 and 3 of part 1 of the 2nd Respondent’s guidelines and the contention that the 2nd Respondent failed to comply with the provisions of paragraphs 2 and 3 of the party guidelines amount to substantial contradiction in the case of the Appellant. That the Appellant has by so doing substantially contradicted himself. That he is being inconsistent and fishy and in law it is required of litigants to be consistent in presenting their case. That they are not to present on appeal a case quite different from the one made by them at the courts below. Again, the courts are not allowed to base their decisions on speculations or conjectures. Courts are not pendulum and so cannot be made to jump from pillar to pole. Reliance was placed on Nwokoro v. Onuma (1999) 9 SC 59 at 64, especially the case of Obasi v. Merchant (2005) 21 NSCQR 276 at 286 where the Supreme Court per Acholonu, JSC also held as follows:-
“It is not the duty of the court to speculate or base its decision on a mere conjecture. It is long settled law that the evidence of facts and circumstances on which a Plaintiff relies and to which it seeks the court to find in its favour and the inference deductible there from must so preponderate in the basic position he is seeking to established that it must have the distinctive quality of clarity, for clarity of expression bespeaks the clarity of the mind”.
The court was urged to hold that the new case now being canvassed by the Appellant based on the provisions of paragraph 2 and 3 is at best an admission by the Appellant that its complaints at the court below were not in respect of acts of non-compliance which took place in the selection or nomination of a candidate of a party for election as required by the Act. It also shows the extent to which the Appellant misconceives the import of the words “in the selection or nomination of a party candidate for election” used in section 87(10) of the Act and the Appellant’s reliance on section 87(7) of the Electoral Act is unavailing:
That given the foregoing, we submit that the Appellant is not availed by the provisions of Section 87(7) of the Electoral Act, 2010 more so as the Appellant concedes that the 2nd Respondent complied with this provision. This is how the Appellant puts it in Paragraph 2.14 of his Brief of Argument:-
“In compliance with subsection 87(7) of the Act, the National Executive Committee of the 2nd Defendant issued detailed provisions for the procedure for election of three (3) Ward Ad-hoc delegates under paragraphs 2 and 3 part 1 of the Electoral Guidelines for primary Election 2010 of the People Democratic Party (the guidelines).”
Thus the Appellant having conceded as aforesaid, he is not availed by the provisions of section 87(7) of the Electoral Act, 2010 more so as he has not shown what procedure in paragraphs 2 and 3 of the guidelines was breached by the Respondent. We urge the court to hold that he Appellant is not availed by the provisions of section 87(7) of the Electoral Act, 2010 as those provisions do not apply to the determination of this appeal.
It was submitted that section 87(9) and (10) of the Electoral Act, 2010 make no provision to confer jurisdiction on the court to determine entertain complaints that occurred before the conduct of party primaries.
It was argued that the Appellants conceives section 87(10) of the Act to mean that all actions or inactions preceding the conduct of primary election of a political party must be taken into account in considering the jurisdiction of the court and as such predicated his action on discrimination, refusal to sell delegate nomination forms and lack of valid notice to the Appellant, even though on appeal he now sings a different song based on paragraphs 2 and 3 of part 1 of the 2nd Respondents Electoral Guidelines.
That the Appellant at page 20 paragraph 3.59 of his brief of argument submitted as follows:-
“A restrictive interpretation of subsection 87(9) of the Act will provide hiding place for mischief makers to abuse electoral processes, which is not ideal for a progressive society like ours. A restrictive interpretation can only defeat the evident policy to reform electoral processes in Nigeria.”
And that this argument is no doubt an invitation on the court to expand the meaning of section 87(9) and (10) of the Act against the intention of the legislature. Reliance was placed on Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) page 227
In Ndoma-Egba v. Chukuogo (2004) 6 NWLR (Pt. 869) 382 PP 409, paras. F – H the Supreme Court stated this position per Uwaifo, JSC thus:-
“The literal rule is the golden meter wand of interpretation when the words of a statute are plain and unambiguous. It requires that such words should be given their ordinary plain meaning. In such circumstances, it is not permissible for the courts to refrain from the meaning of such words even though it gives unreasonable or unfair results, by going outside what the words themselves actually convey, in attempt to consider what other things they ought to be capable of meaning.”
That the only exception to when a court can deviate from the plain and clear provision of a statute is where that provision is inconsistent with other provisions of the statute or is likely to lead to some absurdity, Uwazurike v. A.G Federation (2007) 8 NWLR (Pt. 1035) 1 at 15 – 16 paras. H – A was relied on.
That the Provisions of Section 87(10) of the Act are not in any way inconsistent with any other provision in the Act. Even if it does, that such inconsistency cannot in the circumstance prevent the court from giving the section its ordinary plain meaning giving the use of the words “Notwithstanding the provisions of the Act or rules of a political party” in the subsection. What is material at all times is the intention of the draftman behind the subsection.
It submitted that the Appellant is not availed by the case of Ukwu v. Ararume (2007) 12 NWLR (Pt. 834) 1 at 30 cited by him. That what the Supreme Court decried in Ararume’s case is the culture of impunity by political parties in the conduct of primary elections (not in the conduct of ward congresses) and this is made clear by the words of the Supreme Court at page 30 as follows:-
“If a political party was not to be bound by the provisions of its constitution concerning party primaries why would there be the need to send members of the parties aspiring to be candidates for an electoral office on a wild goose chase upon which they dissipate their resources and waste of time.”
Thus, it was submitted that the only mischief that needed to be cured was that relating to the conduct of party primaries. The introduction of section 87(9) and (10) of the Electoral Act, 2010 is to achieve this purpose. That the section is not intended to cure defaults in ward congresses.
RESOLUTION OF ISSUE ONE:
Section 87(9) of the Act provides thus:-
“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 or the High Court of a State, tor redress.”
From the above provisions of the Act, it is a matter conceivable without much ado that the process of a political party selecting or nominating a candidate for an election is into play and any aspirant who feels or complains that the provisions of the Act, or the guidelines of the political party have been violated is free to ventilate his grievances at the Federal High Court or the High Court of a State or FCT.
It is a clear provision here that the intention of the Act is to bring these issues commonly termed pre-election matters within the jurisdiction of the High Court. However, there appears to be a dilemma of ascertaining the meaning of ‘aspirant’ as this is absent from the Act. According to Oxford Advanced Learner’s Dictionary New 8th Edition page 73, the word ‘aspirant’ is defined as:-
“A person with a strong desire to achieve a position of importance or to win a competition”
In Peoples Democratic Party & Anor. Timipre Sylvia & Ors. (2012) LPELR-7814 (Consolidated), Rhodes-Vivour JSC held thus:
“An aspirant is a person with a strong desire to achieve a position of importance or to win a competition. Indeed Section 87(1) of the Electoral Act States that:
‘A political party seeking to nominate candidates for elections under this Act shall conduct primaries for aspirants to all elective posts’
From the above, it is clear that an aspirant is a person who contested the primaries. An aspirant is thus a candidate in the primaries”
It therefore means that any person with a strong desire who is a member of a political party and has bought the party’s nomination form and has in fact participated in the party’s primaries is an aspirant and has the locus standi to complain of any violation of the Electoral Act or any Electoral Guidelines.
From the above, it appears that although a person may be a member of a political party and has bought the party’s nomination form as an expression of intent to contest, duly screened and clearance certificate issued, such a person does not ipso facto qualify as an aspirant by the position of the apex court in PDP v. Timpre Sylvia (supra) to be vested with the requisite locus standi to approach a court under section 87(9) of the Electoral Act.
Election is simply a process and any person who has the strong desire to participate in the process cannot be called anything more than a person with an intent rather than an aspirant.
Accordingly, section 87(7) of the Act empowers the National Executive Committee of the 2nd Respondent in exercise of powers conferred on it by Articles 12.72(j) and 17.1 and 17.2 of the party’s constitution to issue provisions for the procedure for election of three (3) ward Ad-hoc, Delegate under paragraphs 2 and 3 of part 1 of the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party.
It is the violation of the procedures in the Act and the Electoral Guidelines that gives an aspirant a right to complain at the High Court, (High Court of a State, FCT or Federal High Court).
The learned trial Judge in his ruling at page 223 to 224 of the record is to my mind very restrictive of the provision of section 87(9) of the Act to complaints by an aspirant.
I agree with the learned Counsel for the Appellant’s submission that complaints that occur in conducting primary election can be stretched by asking the question, where a political party adopts the indirect system bf primary election, who are the persons entitled to vote at the primary elections? The answer is that only delegates or Ad-hoc delegates elected at the ward congresses of the party held on a specific date for that purpose are entitled to vote at primary elections.
It follows therefore that if only delegates are entitled to participate at the primary election of the 2nd Respondent to nominate its candidate for election, complaints of non-compliance with the procedure for electing the delegates that are involved in conducting the primary election are justiciable under section 87(9) of the Act.
The conduct of primary election is a process and not an event. The process involves several stages. Section 87(7) of the Act and paragraphs 2 and 3 of part 1 of the guidelines provide for the procedure for the conduct of ward delegates which is the foundation or basis for a valid primary election.
The procedure can be likened to a football tournament where quarter finals be get semi-final and then the final. During the above processes, citizenry are at liberty to choose who would be their leaders and this is the essence of democratic elections.
It is of utmost importance to note; assuming courts are precluded or forbidden from entertaining matters adjudged to be domestic affairs of a political party, what is the essence of section 87(9) of the Electoral Act? Would not party leaders see themselves as gods who can create and destroy without questions? It is due to the current challenges in our political system that my Lord, Ogundade JSC in Ugwu v. Ararume (2007) 12 NWLR (part 834) page 1 at 30 sounded it clear that the whole essence of court’s interference is to compel political parties to comply with the Act, their constitution, guidelines and the 1999 constitution in promoting internal democracy in the process of selection or nomination of candidates contest elections.
There is no doubt that the apex court has in several cases like Senator Ehinlanwo v. Chief Olusola Oke & 2 Ors. (2008) 16 NWLR (pt. 1113) 357 at 402 paras. G – H, Alh. Adamu Abdulkadir & Anor. v. Amb. Yusuf Mamman (2003) 14 NWLR (pt.836) 1 at 30, Onuoha v. Okafor (1983) 2 SCNLR 244, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 at 501 held that the questions of nomination and sponsorship of candidates for a political office by a political party is purely within the domestic domain of the political party in respect of which the court cannot adjudicate.
However, the situation changed with the amendment of the Electoral Act, 2010. The courts now have the jurisdiction to determine matters relating to breach of the provisions of the Electoral Act and the Guidelines of political parties for primary elections.
Section 87(9) of the Electoral Act, 2010 by which the jurisdiction was so conferred 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 or High Court of a State for redress.”
Thus, by virtue of section 87(9) of the Electoral Act, 2010 the courts now interfere in the affairs of a political party where in the selection or nomination of its candidate for election, the party fails to comply with the provisions of the Electoral Act and party electoral Guidelines.
Given the above provisions, an aspirant who intends to invoke the jurisdiction of the court under section 37(10) of the Electoral Act, 2010 must show that provisions of the Act and the Guidelines of the party were not complied with by the political party and that the non-compliance was in the selection or nomination of the party candidate for election i.e. in the conduct of the party primaries.
In the case of PDP & Anor. v. Timipre Sylvia & Ors. (supra) 7814, the Supreme Court held thus:-
“Section 87 provides that:-
“(1) A political party seeking to nominate candidates for elections under this Acts shall hold primaries for aspirants to all elective positions.”
Before scrutinizing the foregoing provision I must state further that the word ‘aspirant’ has been defined as per section 156 of the Electoral Act, 2010 (as amended) to mean “A person who aspires or seeks or strives to contest an election to a political office.”
Construing the above provision i.e. of section 87(1) (supra) it is clear and unambiguous and has given political parties wide powers in the management of questions of choosing of candidates for elective office that is to say with regards to nominations and sponsorship of aspirants to all elective positions. The clear object the provisions of section 87 is intended to achieve besides the inculcation of internal democracy in the affairs of political parties in this country moreso, in the conduct of their party primaries includes thus making them transparent and providing level playing ground for their contestants in party primaries hence section 87(9) has given the court the wide powers to adjudicate on any disputes arising therefrom but not without a rider, what seems to have emerged from construing of section 87 as whole is that for any member of a political party to question any result of party primaries conducted under the Act of 2010 (as amended) he must bring himself within the ambit of an aspirant i.e. a member who has participated in the said party primaries otherwise his action is not man amiable for want of locus standi. He must be a candidate duty screened by the party for its primaries and is aggrieves in one way or another by the process”
Per Chukwuma-Eneh, JSC (Pp. 68 – 69), paras. A – B).
However it is a notorious principle of law that courts have no right whatsoever to descend into the internal affairs of political parties as to choose their candidates for them. In Chief Ikechi Emenike v. People Democratic Party & Ors. (2012) LPELR-7802, the Supreme Court held thus:-
“The courts have no power to compel a political party to sponsor a candidate for this means outriding the thin and limited powers conferred under section 87 of the Electoral Act, 2010 (as amended). The Jurisdiction of the court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the party’s constitution and the party guidelines.
For a clear view and resolution of the central issue, I shall start with the applicable law on the point. I wish to reproduce section 87(4) (b) and (9) of the Electoral Act, 2010 (as amended) thus:
“Section 87(4) (b):- In the case of nominations to the position of governorship candidate, a political party shall, where they intend to sponsor a candidate:-
i. Hold a special congress in the State Capital with delegate voting for each aspirant at the congress to be held on a specific dates appointed by the National Executive Committee (NEC) of the party.
ii. The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Independent National Electoral Commission as the candidate of the party for the particular State.
“Section 87(9):-
Notwithstanding the provision of the Act or rules of a political party, an aspirant who complaints that any of the provisions of this Act and the guidelines of a political parry (sic) has not been compiled with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was on aspirant and that the primary election was conducted in breach of specified provisions of the Electoral Act/Election Guidelines.
Put in another way, the law provides that a candidate with the highest votes cast at a primary election organized by the National Executive Committee of the 1st Respondent to the knowledge of the 3rd Respondent can approach the court for redress if he is excluded by the party.” Per Fabiyi, JSC (Pp. 28 – 29) paras. C – G).
The basic position that need be stated here is that no aspirant is entitled to approach the court to force the political party to nominate him or her as a candidate on the pre that a breach of the party’s guidelines had occurred. However, the court has been empowered by the introduction of section 87(9) of the Electoral Act, 2010 (as amended) to see that the guidelines of a political party are not breached albeit with impurity thereby ensuring that no excesses and arbitrariness of political parties are foisted on a member of their party. The above does not detract from the right of the political party in its sponsorship of a candidate of its choice.
Previously as mirrowed in the age long case of Onuoho v. Okafor (1983) SCNLR 244, (1983) NSCC 494, the court had no business whatsoever in entering into the process rightly or wrongly done by a political party in it selection of a candidate of its liking. The best the court could do where a breach had taken place lay in damages to assuage the candidate’s grievance. That position was changed with the 2006 enactment of the Electoral Act, 2006 especially section 34 which gave the court the power to stop a political party to substitute its candidate who had emerged from its primaries with another. Also when that had occurred to go back to the name of the candidate who had been removed if the political party cannot proffer cogent and verifiable reason, for the substitution.
The situation on ground now is a little different with the current Electoral Act with its section 87(4) which does not contain a provision for substitution or change but while the matter is justiciable, the power is limited to the proceedings during the primaries election and a winner had emerged at which that winning would be supported and not allowed to go to another who had lost at the electoral process within the party.
In the interplay, that would ensue where a grievance has been established and the avenue open would be a redress into damages.
It can be observed that the Appellant’s argument in paragraphs 3.10, 3016 and 3.29 of his brief of argument shows that the breaches being complained of took place in the conduct of ward congresses. In essence, he never participated in the party’s primaries and he did not state or plead anywhere that he was unlawfully excluded from participating in the primaries as a result of the alleged breaches.
Having failed to do so, the Appellant’s case at this stage can be likened to a broken thin bridge of a mighty ocean. This court being not a charitable organization is handicapped to assist the Appellant who has failed to assist himself.
In the light of the above, I am of the firm view that the learned Trial Judge was right in his decision as found at page 824 – 825 of the record. I therefore resolve this issue against the Appellant.
ISSUE No. 2
Whether having raised suo motu the issue of the participation of the Appellant in the primary election conducted on the 24th day of October, 2011 to nominate the candidate of the 2nd Respondent in the 2012 Governorship election in Adamawa State, the learned trial Judge was not in error in failing to invite the parties to address him on the issue before reaching a decision on it?
The learned senior counsel to Appellant submitted as follows:
In paragraph 1 of the Appellant’s statement of claim at page 8 of the record, he averred:-
“The Plaintiff is a politician and bona fide member of the People’s Democratic Party (‘the 2nd Defendant’) in Adamawa State and an aspirant to be nominated the candidate of the 2nd Defendant in the 2012 Gubernatorial election in the State” (Emphasis mine)
This averment is supported by the following documents:-
a. The Appellant’s PDP membership card No.7229215.
b. The Appellant’s Expression of Interest Form.
c. The Appellant’s Nomination Form.
d. The Appellant’s Clearance Certificate issued to him by the 2nd Defendant.
The primary election of the 24th October, 2011 was conducted by the 2nd Respondent. Even as we speak, the 2nd Respondent has not filed a statement of defence to deny the averment of the Appellant or to allege that the Appellant did not participate in the primary election and that the issue of participation in the primary election of the 24th day of October, 2011 is an issue of fact that must be proved by evidence. Also that the 1st Respondent’s preliminary objection did not raise the issue whether or not the Appellant participated in the primary election of 24th October, 2011. Thus, the learned trial Judge in his ruling on the 1st Respondent’s preliminary objection at page 825 of the record erroneously found that:-
“Indeed from the processes filed by the plaintiff in this case, there is nothing to show that the plaintiff participated in the conduct of the primary election as an Aspirant. A person who has not shown to have participated in an election as an aspirant, cannot be heard to complain on the conduct or outcome of the election.”
Rightly, if the Appellant did not participate as an aspirant in the primary election, under subsection 87(9) of the Act, he is not be entitled to seek redress on the primary election.
It was submitted that the learned trial Judge is entitled to raise any issue for the just determination of the issue in controversy between the parties. But accusatorial system of adjudication contemplates that the learned trial Judge is to pronounce on issues submitted to it. The learned trial Judge is an umpire who can only direct proper focus at what parties have articulated without sufficient clarity as to the question in controversy. Reliance was placed on Comptoir Commercial & Industries SPR Ltd. v. Ogun State Water Corporation & Another (2002) 9 NWLR (Pt. 773) 629.
Further it was argued that it is a settled law that where it is necessary that a point arising for determination in a case should be further clarified by evidence after the close of trial, it is the duty of the court trying the case to invite the parties to supply such evidence or explain such point and that it is wrong for the court in such circumstances to substitute its own views on matters on which there should be evidence. The court should therefore not go on a fact finding investigation because trial is not an investigation and investigation is not the function of court. Reliance was placed on Adike v. Obiareri (2002) 4 NWLR (pt. 758) 587.
It was therefore submitted that the failure of the learned trial Judge to invite the parties to address the court on the issue of the Appellant’s participation in the primary election which he raised suo motu is a breach of the Appellant’s right to fair hearing guaranteed by the 1999 Constitution.
On his own part, the learned senior counsel to the 1st Respondent submitted as follows:
In the ruling delivered by the court below in this matter, the court below found as follows:-
“Indeed from the processes filed by the plaintiff in this case, there is nothing to show that Plaintiff participated in the conduct of the primary election as on aspirant. A person who has not shown to have participated in an election as an aspirant cannot be heard to complain on the conduct or outcome of the election.”
(Page 825 of the record of appeal.)
Although by paragraph 3.70 of his Brief of Argument the Appellant concedes that only a person who participated in a primary election as an aspirant can complain on the conduct or outcome of the election, h; nevertheless argues that the failure of the court below to invite the parties to address the court on the issue of Appellant’s participation in the primary election raised suo motu by the court was a breach of Appellant’s right to fair hearing.
The Appellant having conceded that only a person who contested an election as an aspirant can complain against the election or its outcome, the duty the court now has is to determine whether the said finding-and or decision of the court below occasioned a miscarriage of justice.
It is important to state at this stage that the Appellant has not shown in the statement of claim that he contested the governorship primary election he now challenges. Having not shown that he contested the primary election, the Appellant has not discharged a fundamental duty. Paragraph 1 of the statement of claim relied on by the Appellant does not show the Appellant as having discharged that duty. Paragraph 1 of the statement of claim states as follows:-
“The Plaintiff is a politician and bona fide member of the People Democratic Party (the 2nd Defendant) in Adamawa State and an aspirant to be nominated the candidate of the 2nd Defendant in the 2012 gubernatorial election in the state.”
Further that Nomination of a party candidate is often done in a primary election and if as the Appellant contends he is an aspirant to be nominated the candidate, what he is saying in effect is that the primary election he hopes to be nominated is yet to be conducted. This does not mean that Appellant participated in or contested the election he now challenges as he could not have participated in an election he is still hoping to be nominated. Appellant’s paragraph 1 should therefore be taken to mean that the Appellant is expecting to participate in a primary election yet to be held and not that he participated in the one already held on the 24th day of October, 2011.
Also that is not enough for the Appellant to say that he was an aspirant or that he was issued a clearance certificate to participate in the primary election. He is required to show that after the issuance of the clearance certificate he did not step down but actually participated in the primary election held on the 24th day of October, 2011. Those facts are lacking in the statement of claim and they ought to be there to satisfy the court below that the suit was competent and the court has the jurisdiction to determine same. The statement of claim is the only document from which the court must satisfy itself that a Plaintiff is competent to institute an action and the court is competent to determine the action: was placed on Inakoju v. Adeleke (2007) 15 NWLR (Pt. 1025) 423 at 588 – 589 paras. H – C. See also C.S. INC v. Cindy Gala (2007) 4 NWLR (Pt. 1024) 222 at 243 para C.
It was argued that since the Appellant did not participate in the primary election, it is immaterial that the issue of participation was taken suo motu by the court. Further that it is not in all cases where a court takes a point suo motu that will result in the reversal of the decision so reached. The Appellant must convince the court that the point so taken suo motu is substantial and has led to a miscarriage of justice. Reliance was placed on Alhaji Yakubu Ent. Ltd v. Omolaboje (2006) All FWLR (Pt. 302) 113 at 120 Para. D – F,
Moreso, that in law there is miscarriage of justice only where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour. Reliance was placed on Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 at 112 paras. C – E
Could the Appellant have had the ruling delivered in his favour in the absence of the alleged error? This is a question for the Appellant but which the Appellant failed to answer.
But on what basis could the court below have ruled in favour of the Appellant? In the first place the Appellant did not satisfy the primary requirements of the provision of section 87(9) and (10) of the Electoral Act, 2010? Under the said two subsection, the Appellant was required to show that the complaints upon which he based his action amounted to breach or acts of non-compliance with the provisions of the Electoral Act, 2010 and the Electoral Guidelines of the 2nd Respondent in the section or nomination of a party candidate for election. In other words that acts which occurred in the conduct of the party primaries were contrary to the provisions of the Act and Party Guidelines for the conduct of primary election.
The Appellant failed to point out which of the provision, was breached by the 2nd Respondent in the conduct of its primaries or in the selection or nomination of its candidate. Only in this appeal the Appellant now contents that the 2nd Respondent failed to comply with provisions of paragraphs 2 and 3 of part 1 of the 2nd Respondent’s Guidelines for the conduct of ward congresses; a contention which substantially contradicts Appellant’s case at the court below and which does not avail the Appellant as ward congresses are only held to select or nominate ward delegates who are not party candidates for election as envisaged by section 87(10) of the Act.
That in the absence of the finding that Appellant did not participate in the primary election, the ruling could still have been against the Appellant. Also, in law a decision by a lower court can only reversed upon satisfactory proof that the error committed by the court was fatal for occasioning a-miscarriage of justice. It was submitted that in Union Bank of Nigeria v. Orizi (1994) 3 NWLR (pt. 333) 385 at 402 para. B, this court held as follows:-
“A decision of a lower court on any point will be reversed by the Appellant court where error of law committed by the lower court is fatal because it has occasioned a miscarriage of justice.”
It was submitted that in the instant case, the alleged error not having been shown to be fatal or to have occasioned a miscarriage of justice, there is no basis upon which the decision could be revered by this court. This court was urged to so hold.
RESOLUTION OF ISSUE TWO:
The learned trial Judge in his ruling on the 1st Respondent’s preliminary objection at page 825 of the records held thus:-
“Indeed from the processes filed by the Plaintiff in this case, there is nothing to show that the Plaintiff participated in the conduct of the primary election as an aspirant. A person who had not shown to have participated in an election as an aspirant cannot be heard to complain on the conduct or outcome of the election.”
It is now a legal principle beyond exploitation and adventure that courts have powers only to the extent of the claims, facts and evidence presented before them by the parties. A court does not have the power or jurisdiction to embark on a voyage of discovery of facts and formulation of issues for the parties.
This is purely the function of the parties and not of the court. See Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537. And it is no doubt that parties are bound by what they have placed before the court as their pleadings. See Aliyu v. Itauma (2010) All FWLR (Pt. 510) 765 at 777 paras. A – C, Akinlagun v. Oshoboja (2006) All FWLR (Pt.325) 53.
It therefore follows that a court is disentitle to raise an issue suo motu. Nevertheless in a situation where a court ventures into raising issues suo motu for the parties, it becomes incumbent on the court to accord the parties equal opportunities to address on such issue (s). Unless and until this procedure is adopted and followed, where a court raises an issue suo motu, the right to fair hearing is said to have been affected.
On the immutable principle of law that courts are bound by the issues before them, the apex court in the case of Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (Pt.1213) 106 held thus:-
“On the issue of whether it was proper for the court below to raise the issue of locus standi of the Appellants suo motu and determine same without hearing from the parties, it has long been settled that no court, is entitled to do so, the elementary principle is that it is wrong for a court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it.
This is so because the court is bound by and therefore confined to the issues raised by the parties”
Per Tabai, J.S.C. (Pp. 37 – 32, paras. F – A).
See also Stirling Civil Eng. (Nig) Ltd. v. Yahaya (2005) 11 NWLR (Pt. 935) 181.
Where it is necessary that a point arising for determination in a case should be further clarified by evidence after close of trial, it is the duty of the court trying the case to invite the parties to supply such evidence or explain such point.
It is therefore wrong for the court in such circumstances to substitute its own views on matters on which there should be evidence. The court should not go on a fact finding investigation because trial is not an investigation and investigation is not the function of the court. See Adike v. Obiareri (supra).
May I emphasize that in our adversarial system of adjudication, courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a court raises an issue suo motu, it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation. This, however, does not mean that a court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a court is competent to raise it to enable it determine the case, but the parties should be allowed to address the court on it.
It therefore means that courts of law are precluded from raising an issue suo motu and resolving it suo motu. This is not only unjust but unfair and a party aggrieved has the right to complain in the way the Appellant has done in this court.
See Stirling Civil Eng. (Nig) Ltd. v. Yahaya (supra) Chief Oje v. Chief Babalola (1991) 4 NWLR (Pt. 185) 267, University of Calabar v. Dr. Essien (1996) 10 NWLR (Pt. 477) 225, Hon. Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684, Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167, Oro v. Falade (1995) 5 NWLR (Pt. 396) 385.
I must re-iterate the fact here that even when the almighty jurisdiction of a court is raised suo motu, parties must be accorded the opportunity of addressing on it. It will thus be wrong and unprocedural for the court to decline jurisdiction suo motu shutting doors of hearing against the parties. This would amount to denial of hearing to the parties as I said earlier.
In the recent case of Victor Osademe & Anor. v. P. E. Agbadamu & Ors. (2012) LPELR 9324, this court held thus:-
“Assuming without conceding that the learned trial Judge in the instant matter raised the issue of jurisdiction suo motu, it is trite that he should afford both sides the opportunity to address him on it. See the case of Leader & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt.1225) P. 329 at P.340, paras. A – E, the learned Fabaiyi J.S.C, with erudition restated this legal position in the following words; Let me start by making the point that the raising of the issue of competence suo motu while writing the judgment equates with what is often referred to as cloistered Justice. It is not the duty of a court to embark upon same by making enquiries into the case outside the court. A Judge is an adjudicator; not an investigator, See Duriminiyo v. COP (1961) NRNLR 70 at 74; Dennis Ivienagbor v. Henry Osato Bazuoye (1999) 6 SCNJ 235 at 243; (1999) 9 NWLR (Pt. 620) 552…”
As I have earlier stated the legal principle that parties in a suit are bound by pleadings, it means that a party is not allowed in hearing of a matter to import facts not originally pleaded by such a party and the courts cannot take over the case of the parties by introducing extraneous facts. See Aliyu v. Itauma (2010) All FWLR (Pt. 510) 765 at 777 paras. A – C, Akinlagun v. Oshoboja (2006) All FWLR (Pt. 325) 53. Longe v. FBN Plc. (2010) 6 NWLR (Pt. 1189) 1 SC, The State v. Oladimeji (2003) 14 NWLR (Pt.839) 57 at 69.
Nevertheless, I agree with the learned senior counsel to the 1st respondent’s submission that it is not in all cases where a court takes a point suo motu that will result in the reversal of the decision so reached. The Appellant must convince the court that the point so taken suo motu is substantial and has led to a miscarriage of justice. See Alhaji Yakubu Ent. Ltd v. Omolaboje (2006) All FWLR (Pt. 302) 113 @ 120 PARAS. D – F; Union Bank of Nigeria v. Orizi (1994) 3 NWLR (Pt. 333) 385 @ 402 para. B
Furthermore, miscarriage of justice is said to occur only where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may have. Judgment delivered in his favour. See Amadi v. NNPC (2000) 10 NWLR (Pt. 674) @ 112 Paras. C – E.
The pertinent question here is: would the decision of the lower court be otherwise if the court had not raised the issue complained herein, when obviously the Appellant was not an aspirant and consequently lacks the locus standi as to commence an action under the provision of section 37(9) & (10) of the Electoral Act? The answer to this poser is in the negative and it is clear.
I, therefore hold the view that this issue ought to be resolved against the Appellant and I hereby so resolve.
ISSUE NO. 3
Whether the learned trial Judge was not in error in construing the provisions of section 31(1) of the Electoral Act, 2010 (as amended) as limiting the time within which the Court can nullify the result of the primary election of the 2nd Appellant held on the 24th day of October, 2011 to nominate its candidate for the 2012 Governorship election in Adamawa State.
The learned senior counsel for the Appellant submitted as follows:
The learned trial Judge in his ruling at page 829 of the record held:-
“It is clear to me that the time for the submission of list of candidates for election by a political party, for the purpose of the election, the subject matter of this proceeding has lapsed by virtue of section 31(1) of the Electoral Act, 2010. This Court therefore lacks jurisdiction to order a fresh primary election”
Still at page 829 of the record, the learned trial Judge further held:-
“Since I do not have jurisdiction to order a fresh primary election in view of section 31(1) of the Electoral Act, 2010, it follows that I do not have the jurisdiction to nullify the result of the primary election of the 2nd Defendant held on the 24th October, 2011. It is therefore obvious to me that the reliefs sought by the Plaintiff in this proceedings, are in law, incapable of being granted”
Section 31(1) of the Electoral Act 2010 (as amended) (herein after called ‘the Act’) provides:-
“Every political party shall not later than 60 days before the date appointed for general election under the provisions of this Act, submit to the Commission in the prescribed forms, the list of the Candidates the party proposes to sponsor at the elections, provided that the Commission shall not reject or disqualify candidates for any reason whatsoever.”
It was submitted that section 31(1) of the Act applies only to political parties. That it prescribes the time (60 days) deadline within which political parties must submit the list of its candidates to contest a general election and that the learned trial Judge was in error when he held that in view of section 31(1) of the Electoral Act, 2010, the court lacks jurisdiction to order fresh primary election.
It further argued that when construing a statute, the court must give effect to the clear and unambiguous words used in the statute; a consideration of the consequences of the words should not affect the interpretation of words if the meaning of the words is clear and unambiguous.
It was further submitted that the learned trial Judge, he expressed too much sympathy for the 2nd Respondent in determining the right of the Appellant to redress complaints arising from the 2nd Respondent’s non-compliance with the Act, its Constitution, Guidelines and the 1999 Constitution in the conduct of Ward Congresses to elect Ad-hoc Delegates.
The sympathy of the learned trial Judge in this case according to the learned senior counsel could be likened to a situation where in the face of credible evidence adduced by the prosecutor, a court fails to convict a Defendant charged with murder on the ground that the punishment for murder is capital offence, and the Defendant being the only child should not die because his parents are very old and they may never be able to give birth to another child again.
It was submitted that under the new regime of electoral law in Nigeria, section 87(10) of the Act oust the jurisdiction of courts to stop party primaries and election. The correlative duty on political parties is that they take the risk of not complying with the Act, its own Constitution, Guidelines or the 1999 Constitution in the conduct of its primary elections. If a political party fails to comply with the Act, its Constitution, Guidelines or the 1999 Constitution in the conduct of primary election, it does so at its own risk because ‘JUSTICE MUST BE DONE EVEN IF HEAVEN WILL FALL’.
This court was urged to resolve this issue in favour of the Appellant.
The learned senior counsel for the Respondent submitted that it is apparent from the claims made by the Appellant at the court below that the court below was by the action instituted by the Appellant sought to set aside the primary election by which the 1st Respondent was selected or nominated by the 2nd Respondent as its candidate for the 2012 governorship Election in Adamawa State and to order the conduct of a fresh primary election by the 2nd Respondent.
Further that the finding of the court below which may be seen at page 829 of the record of Appeal is as follows:-
“It is clear to me that the time for the submission of list of candidates for election by a political party, for the purpose of the election, the subject matter of this proceedings has lapsed by virtue of section 31(1) of the Electoral Act, 2010. This court therefore lacks jurisdiction to order a fresh primary election as it is therefore obvious to me that the reliefs sought by the Plaintiff in this proceedings are in law incapable of being granted.”
That the time for submission of list of candidates for election by political parties had lapsed is a fact not disputed by the Appellant. Nowhere in the Appellant’s Brief of Argument is the fact disputed that the time for submission of list of candidates had lapsed. Appellant’s contention as can be seen in paragraphs 3.87 of his Brief of Argument is only to the effect that the court below was in error to have considered itself as having been robbed of jurisdiction by virtue of the time lapse.
This honourable court was urged to hold that the Appellant conceded that the time within which political parties were to submit their list of candidates to the 3rd Respondent had lapsed at the material time by virtue of the provisions of section 31(1) of the Electoral Act, 2010. That Section 31(1) of the Electoral Act, 2010 provides:-
“Every political party shall not later than 50 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.”
The purpose of a primary election according to the learned counsel is for the nomination of a party candidate for an election. In the instant case the orders as sought by the Appellant for the setting aside of the primary election already conducted and for fresh election to be conducted were for the purpose of nominating a candidate for the election. If as, conceded by the Appellant, the time to submit the list of candidate has lapsed, the implication therefore is that the orders sought, if granted, shall be in vain by virtue of the provisions of section 31(1) of the act.
The counsel submitted that in ACB Plc. v. N.T.S. (Nig) Ltd. (2007) 1 NWLR (Pt.1016) 596 at 625 para. H this court held as follows:-
‘The order was made by the court from the blues and devoid of any legal backing. I regard the order of the court in the circumstance as a grave irregularity. The courts of law do not make an order in vain but for a purpose and the purpose must be definite and identified.”
That in the circumstance, the court below would have been wrong if it had assumed jurisdiction over the matter when it was apparent that the purpose for which the orders were sought i.e. the nomination of candidate for election, can no longer be achieved as it was no longer possible to send the name of the candidate nominated to the 3rd Respondent.
Thus, Appellant’s argument in paragraph 3.79 of his Brief of Argument to the effect that section 31(1) of the Act only applies to political parties and not the court is unavailing. The law is meant to be obeyed and it is not the duty of the court to pitch a political party against the law.
This court was urged to hold that the court below was not in error when it declined jurisdiction in the matter on the further ground that the time within which it can make the orders claimed had lapsed. That in doing so the court should also consider the provisions of section 31(5) and (6) of the Electoral Act, 2010 which provided as follows:-
“(5) A person who has reasonable ground to believe that any information given by a candidate in the affidavit or any document submitted by the candidate is false may file a suit at the High Court of a State or Federal High Court against such a person seeking a declaration that the information contained in the affidavit as false.
(6) If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the elections.”
The two provisions according to the counsel reveal that at the material time the only ground upon which an action can be entertained by the court after the expiration of the time within which nomination list of candidates can be sent to the commission is where false information has been supplied by a party nominated by a party. Under such circumstance what the court will be required to do is to make an order to disqualify a candidate already nominated as a party candidate for election. The action of the Appellant was not for the disqualification of the 1st Respondent. The court below therefore rightly declined jurisdiction in the matter.
According to learned counsel, even if the court below had not declined jurisdiction on the further ground, i.e. by virtue of the provisions of Section 31(1), the court below would still have declined jurisdiction by virtue of the grounds argued under issues 1 and 2 above herein.
RESOLUTION OF ISSUE THREE:
It is apparent from the claims made by the Appellant that the court below was sought to set aside the primary election by which the 1st Respondent was selected or nominated by the 2nd Respondent as its candidate for the 2012 governorship election in Adamawa State and to order the conduct of a fresh primary election by the 2nd Respondent.
The findings of the court below which can be seen at page 829 of the record of appeal is as follows:-
“it is clear to me that the time for the submission of list of candidates for election by a political party, for the purpose of the election, the subject matter of this proceedings has lapsed by virtue of section 31(1) of the Electoral Act, 2010. This court therefore lacks jurisdiction to order a fresh primary election as it is therefore obvious to me that the reliefs sought by the Plaintiff in this proceedings are in law incapable of being granted.”
Section 31(1) of the Electoral Act, 2010 provides thus:
“Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.”
I agree with the learned Counsel for the Respondent in his submission that the purpose of a primary election is for the nomination of a party candidate for an election. That in the instant appeal, the orders sought by the Appellant for setting aside of the primary election already conducted and the main election conducted and ordering a fresh primary election for the purpose of nominating a candidate for fresh election is irreversible. This appears to me like crying over spilt milk.
The implication therefore is that the orders sought, if granted, shall be in vain by virtue of the fact the child alleged to have been born out of an illegal and malfunctioned pregnancy is now full grown, and cannot be born again.
See ACB Plc. v. N.T.S (Nig) Ltd. (2007) 1 NWLR (pt. 1016) 596 at 625 para. H.
It is therefore a settled principle of law that a court of justice will not issue an order which is unenforceable and the courts have been warned to desist from making orders which would be ineffective, impotent, or abortive, for like nature, courts should abhor doing things in vain. See Ekpeyong & 3 Ors v. Nyong (1975) 2 S.C. 65, Ukaejianya v. Uchendu, 13 WACA 45.
The learned trial judge at page 829 of the records of this appeal held thus:
“It is clear to me that the time for the submission of list of candidates for election by a political party, for the purpose of the election, the subject matter of this proceeding has lapsed by virtue of section 31(1) of the Electoral Act, 2010. This court therefore lacks jurisdiction to order a fresh primary election. Since I do not have jurisdiction to order a fresh election in view of section 31(1) of the Electoral Act, 2010. It follows that I do not have the jurisdiction to nullify the result of the primary election of the 2nd Defendant held on 24th October, 2011. It is therefore obvious to me that the reliefs sought by the plaintiff in this proceeding are in law incapable of being granted”
It is my humble opinion that the above decision of the trial lower court is right based on the foregoing legal principles, to the extent that the court lacked jurisdiction ab initio to grant the said claim or order. The reference made to section 31(1) of the Electoral Act 2010 is of no moment.
From the foregoing and the wider views expressed in the lead Judgment by my learned brother, I. I. Agube (JCA), I resolve this issue against the Appellant.
I seek this opportunity to exhort political parties and their respective members to try and seek for justice within the party system, except where impracticable. They should eschew illegalities and strive more for peace and understanding of their leadership. The powerful and the elite members should desist from using their vantage positions in the party to deprive the less powerful, of their rights to justice.
The leadership of parties should always strive to give their members equal opportunity so that could work for natural justice as opposed to legal justice. Legal justice is not the same as natural justice which is characterized by purity of conscience and love, and devoid of legal technicalities. Rampant and frequency of litigation reduces time for good governance and hampers development that should come alone with a good democratic system. Those elected or appointed should be given cooperation to enhance performance and face the business of governance.
Therefore, I urge that the leadership of political parties and their members to join hands together and work for peace and progress. The winners and losers should strive to work together with a spirit of sportsmanship, in the interest of this great country.
On the whole, I am convinced that this appeal lacks merit and ought to be dismissed. Therefore, I too dismiss same. The ruling of Hon. Justice S. M. Shuaibu dated l3th January 2012 but delivered on 20th January, 2012 which is contained at pages 834 – 854 of the records of appeal in favour of the Respondents is hereby affirmed. I abide by all the orders including order as to no cost made in the lead Judgment.
ABUBAKAR ALKALI ABBA, J.C.A.: I participate in the hearing of this appeal and I read the Judgment of my learned brother Justice I. I. Agube and I agree that the court below had rightly found that the appellant lacked locus standi to institute the action.
I agree that the lower court is stripped of its jurisdiction.
I also up hold the 1st respondents preliminary objection as meritorious and accordingly it succeeds.
On the whole this appeal lack merit and is accordingly dismissed. I also award no cost to either party.
Appearances
Ayo Akam Esq. – Cross-Appellant/ApplicantFor Appellant
AND
S. O. Imhanobe Esq. – 1st Cross-Respondent
Mark Chukwu Esq. – 3rd RespondentFor Respondent