HON. (DR) HARRY N. ORANEZI v. PEOPLES DEMOCRATIC PARTY & ORS (2016)

HON. (DR) HARRY N. ORANEZI v. PEOPLES DEMOCRATIC PARTY & ORS

(2016)LCN/8151(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of February, 2016

CA/E/207/2015

RATIO

PRACTICE AND PROCEDURE: RATIO DECIDENDI; WHAT IS RATIO DECIDENDI

The part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi and not a statement or an unsolicited remark made in passing by the Court which is referred to in legal parlance as obiter dictum. See ODINUKWE VS. OFOM (2010) 18 NWLR (PT.1225) PAGE 404, ABACHA VS. FAWEHINMI (2000) 6 NWLR (PT. 660) PAGE 228. In ODUGBO VS. ABU (2001) 14 NWLR (PT. 732) PAGE 45 AT 100(G) the Supreme Court defined ratio decidendi as the principle of law upon which a particular case is decided. See also A. I. C LTD VS. N.N.P.C (2005) 11 NWLR (PT. 937) PAGE 563. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

APPEAL: THE PURPOSE OF AN APPEAL

COURT: JURISDICTION; HOW THE JURISDICTION OF A COURT IS DETERMINED

The law is trite that the jurisdiction of the Court is determined by the nature of the subject matter and the claim before the Court. See ABIA STATE TRANSPORT CORP. & ORS. VS. QUORUN CONSORTIUM LTD (2009) 9 NWLR (PT. 1145) PAGE 1, ADETAYO & ORS. VS. ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) PAGE 169. The law is also trite that in the determination of the nature of the plaintiff’s case and the claim before The Court, it is the Writ of Summons and statement of claim or any Originating process by which the action is commenced that must be considered. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER ONLY A CERTIFIED TRUE COPY OF A JUDGEMENT OF A COURT IS ADMISSIBLE AS EVIDENCE OF EXISTENCE OF SUCH JUDGEMENT

The combined effect of the above provisions of the Evidence Act is that only a certified true copy of a judgment of a Court is admissible as evidence of existence of such judgment. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

COURT: JURISDICTION; THE CONDITIONS THAT MUST EXIST BEFORE AN HIGH COURT CAN ENTERTAIN ANY ACTION IN RESPECT OF THE NOMINATION OR SPONSORSHIP OF A PARTY BY A POLITICAL PARTY
By the combined effect of Section 87 (4) and (9) of the Electoral Act (as amended) and the above cases, the Federal High Court or the State High Court or the High Court of the Federal Capital Territory can entertain any action in respect of the nomination or sponsorship of a party by a political party if the following conditions exist.
(1) The claims or reliefs sought must be those that fall or can be subsumed under Sections 87 (4) and (9) of the Electoral Act, 2010 (as amended).
(2) The complaint must be founded on the selection or nomination of a candidate for an election.
(3) There must have been a primary for the selection or nomination of a candidate by a political party.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

HON. (DR) HARRY N. ORANEZI Appellant(s)

AND

1. Peoples Democratic Party
2. Alhaji Adamu Mua?zu
(National Chairman of Peoples Democratic Party and Chairman of National Executive Committee and National Working Committee of Peoples Democratic Party)
3. PROF. WALE OLADIPO
(National Secretary of Peoples Democratic Party)
4. HON. CHRIS AZUBUOGU
5. HON. JULIUS OFFORMAH
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein as the plaintiff in Suit No. FHC/AWK/CS/24/2015 filed in the Federal High Court, holden at Awka sought the following reliefs against the respondents in this appeal.
1. ?A DECLARATION that the Plaintiff having polled the majority of votes at the 1st Defendant?s primary election conducted on 7th December, 2014, for emergence of its candidate for Nnewi North/South/Ekwusigo Federal House of Representatives Constituency in the Federal House of Representatives election scheduled for 14th February, 2015 is the candidate of 1st Defendant at the February, 2015 general elections.
2. DECLARATION that Plaintiff having polled majority of votes at the said 1st Defendant?s primary election was entitled to have his names as 1st Defendant?s candidate for Nnewi North/South/Ekwusigo Federal House of Representatives Constituency in the Federal House of Representatives Constituency in the Federal House of Representatives election, 2015 submitted by 2nd & 3rd Defendants to the 8th Defendant.
3. Declaration that Plaintiff

having been declared the winner of the said primary election under Section 87 (4) (c) of Electoral Act, 2010 (as amended), he cannot be substituted with 4th Defendant. Albeit 5th Defendant, both of who lost the primary election under the Electoral Guidelines for Primary Elections 2014 of Peoples Democratic Party and Electoral Act (supra).
4. PERPETUAL MANDATORY INJUNCTION compelling the 1st- 3rd & 6th Defendants to recognize the Plaintiff as the Candidate of the 1st Defendant, and in that behalf accord him all perquisites? as the 1st Defendant?s Candidate for the Federal House of Representatives election, 2016 in respect of Nnewi North/South/Ekwusigo Federal House of Representatives Constituency.?

The case of the appellant as gleaned from his statement of claim is that he contested and won the primary conducted by the 1st respondent on 7th December, 2014 to elect its candidate for Nnewi North/South/Ekwusigo House of Representatives Constituency general election. He contested the primary with the 4th and 5th respondents. According to him, his name was substituted with the name of the 4th respondent as the winner of the said

primary. In a twist of event, the 5th respondent?s name was submitted and accepted by the 6th respondent as the 1st respondent?s candidate to contest the general election into the Nnewi North/South/Ekwusigo House of Representatives constituency.

Upon service of the processes on the respondents, the 1st -3rd respondents filed a notice of preliminary objection and prayed the Court to strike out the suit on the ground that the complaint of the appellant revolves around the internal affairs of a political party which the Court lacks the power to adjudicate upon and that the appellant?s case cannot be compartmentalized within the provisions of Sections 87 (4) and 87 (9) of the Electoral Act, 2010 (as amended). The Court in a considered ruling delivered on 19th March, 2015 upheld the objection and struck out the suit for lack of jurisdiction.

?The appellant is aggrieved by the ruling and has appealed to this Court on two grounds of appeal contained in the Amended Notice of Appeal filed on 2nd October, 2015 but deemed as properly filed and served on 8th October, 2015. The two grounds of appeal without their particulars are as follows:<br< p=””

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?GROUND ONE-ERROR IN LAW
The Court below erred in law when it declined jurisdiction to hear and determine the Appellant?s suit before it on the premise that the suit was intra party feud or internal affairs of a political party when the suit was justiciable and a complaint cognizable under Section 87(4) (c) & (10) of Electoral Act, 2010 (as amended).
GROUND TWO-MIXED LAW AND FACTS
The Court below erred in law and in facts when it held that three different primary elections were held by three groups, and out of which Appellant belonged to an illegal grouping of Ken Emeakayi-led State Executive Committee, whose tenure had elapsed on 24/9/2014 more than three months before the primary was held in January, 2015.?

In accordance with the rules of this Court, briefs of argument were filed and exchanged.The appellant?s amended brief of argument was filed on 9th October, 2015. The appellant formulated the following two issues for determination:
1. ?Whether the Appellant?s claim before the Court below disclosed justiciable complaint cognizable under Section 87(4) (c) & (10) of the Electoral Act,

2010 (as amended)?
2. Whether the Court below was right in its finding that Appellant?s case disclosed the holding of three primary elections, which robbed the Court the jurisdiction to adjudicate over the Appellant?s case

The 1st respondent did not file any brief. The 2nd respondent?s brief was filed on 28th October, 2015. The sole issue formulated by the 2nd respondent is:
?Whether this appeal is without merit.?

?The 3rd respondent?s brief of argument was filed on 13th August, 2015. He adopted the issue formulated by the 2nd respondent. The 4th respondent?s amended brief of argument was filed on 26th October, 2015. He adopted the issues formulated by the appellant?s counsel. The 5th respondent?s brief of argument was filed on 27th October, 2015. The 6th respondent?s amended brief of argument was filed on 23rd October, 2015. He formulated the following issues for determination:
i. Whether the trial Court was right in declining jurisdiction to entertain the Appellant?s suit and striking out same.( Ground 1)
ii. Whether the learned trial Judge of the Federal

High Court was right in his findings that the Appellant?s case disclosed three primary elections conducted by three groups and that the Appellant belonged to an illegal group of Ken Emeakayi-led State Executive Committee whose tenure had elapsed on 24/9/2014 before the primary election.
(Ground 2).?

The appellant?s reply brief to 2nd respondent?s brief of argument was filed on 26th November, 2015 and deemed as properly filed and served on 30th November, 2015. The appellant?s reply brief to 4th respondent?s brief of argument was filed on 26th November, 2015 and deemed as properly filed and served on 30th November, 2015. The appellant?s reply brief to the 6th respondent?s brief of argument was filed on 26th November, 2015 and deemed as properly filed and served on 30th November, 2015.

The 5th respondent incorporated a notice of preliminary objection in his brief. The preliminary objection is challenging the competence of the appeal on the following grounds:
(a) The record of appeal is incompetent.
?(b) The record did not contain the processes filed in the matter by the 5th respondent at

the Court below.
(c) The 5th respondent was not a party to the compilation of the record.

The contention of the 5th respondent in grounds 1 and 2 of the objection is that the record of appeal is incomplete because it does not contain the notice of preliminary objection, the affidavit in support and written address filed by the 5th respondent at the Court below. He submitted that this Court has no jurisdiction to hear this appeal on an incomplete record. He referred to MUTUAL LIFE & GENERAL INSURANCE VS. IHEME (2012) ALL FWLR (PT. 6110) PAGE 1401 AT 1407, OKOCHI VS. AMINKWO (2004) ALL FWLR (PT. 200) PAGE 1524, NWANA VS. FCDA (2007) ALL FWLR (PT. 376) PAGE 611.

?The appellant?s counsel did not respond to the objection. The guidelines for compilation of record of appeal are contained in Order 8 Rules 1 – 8 of the Court of Appeal Rules, 2011.Those rules are reproduced below:
1. The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.
2. In pursuit of Rule 1 above, the registrar shall within a reasonable time summon the parties before him to-<br< p=””

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(a) settle the documents to be included in the Record of Appeal and
(b) fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
3. The said registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions of Rules 2 (a) & (b) of this Order.
4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Record of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for this appeal and transmit to the Court within 30 days after the registrar?s failure or neglect.
5. Such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
6. Where the Respondent considers that there are additional records which

may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.
7. ?Every Record of Appeal shall contain the following documents in the order set out:
(a) the index;
(b) a statement giving brief particulars of the case including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.
8. The Registrar or the Appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of document; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or

parts of any lengthy document are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.?

Apart from the 1st ? 3rd respondents, other respondents also filed similar objections as the 1st ? 3rd respondents. However, the Court chose to consider the 1st ? 3rd respondents? objection. The Court stated categorically that having considered the 1st ? 3rd respondents objection, the other objections would not be considered as it would amount to an exercise in futility. There is no appeal against that decision. It is very clear that this appeal is against the ruling on the 1st ? 3rd respondents? objection. In compiling the record of appeal, the duty of the registrar is to include only the documents which are relevant for the determination of the appeal and he shall exclude all the documents that are not relevant to the subject matter of the appeal. See NWANA VS. FCDA (2007) 1 NWLR (PT. 1044) PAGE 59. Obviously the

notice of preliminary objection filed by the 5th respondent is not relevant to his appeal. Apart from the above, where upon service of the record of appeal on a respondent, he feels that certain documents which are necessary for the determination of the appeal are not included in the records transmitted to this Court, it is the responsibility of that respondent by virtue of Order 8 Rule 6 of the Court of Appeal Rules (supra) to compile and transmit those documents to this Court as an additional records of appeal. See AGBAKWURU & ANOR. VS. IGBOKWE & ANOR. (2012) LPELR (CA).

The other ground of objection is that the 5th respondent was not part of the settlement of the record of appeal. The process of compilation and transmission of the records of appeal as stipulated by Order 8 Rule 2 of the Court of Appeal Rules is commenced by the issuance and service of notice on the parties to appear at the registry of the Court below to agree on or settle the documents which should be included in the record of appeal. The 5th respondent has not stated that he was not served with the notice to appear at the registry of the Court below for settlement of the

documents to be included in the record of appeal. This Court is not entitled to speculate on what precluded the 5th respondent from being part of settlement of the record. Even if he was not part of the settlement of record, the 5th respondent had the right to compile supplementary record which he failed to do. The 5th respondent cannot be heard to complain. The objection by the 5th respondent is unwarranted. It is unsustainable and it is hereby over ruled.

The 6th respondent in a notice of preliminary objection dated 23rd October, 2015 and filed on the same day raised an objection to ground 1 of the appeal and issue 1 formulated therein. The grounds of the objection are as follows:
Ground 1
Ground 1 of the Appellant?s Ground of Appeal is incompetent and ought to be struck out in that ?
(a) the complaint therein contained does not form part of the ratio decidendi of the decision of the Court;
(b) it contains argument.
Ground 11
Issue 1 in the appellant?s Amended Brief of Argument is incompetent as it embodied the incompetent Ground 1 of the Grounds of Appeal.
Dated this 23rd day of October, 2015?

On ground 1 of the objection, counsel submitted that a party is not at liberty to invent a subjective impression or conceive his own views of what the Court decided and an appeal should be founded on the ratio decidendi of a case as it is not every statement made by a judge that ought to ground an appeal. He referred to SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PAGE 156, ONI VS. FAYEMI (2008) 8 NWLR (PT. 1089) PAGE 400 AT 427 ? 428 (H-F). Counsel further submitted that the ratio decidendi of the decision of the learned trial judge was not that the present suit deals with intra party feud or internal feud or affairs of a political party and accordingly non-justiciable as the appellant appears to have conceived. On the contrary the decision of the Court is based on the finding by the Court that the case presented three groups that conducted three different primaries with their respective candidates and that the appellant belonged to a group whose executive committee had been declared illegal by a subsisting judgment of Honourable Justice E. S. Chukwu. He argued that based on the conclusion reached by the learned trial judge which logically

followed from the foregoing findings, whether or not the present suit was non-justiciable for being an internal affair of a political party operated at no detriment to the appellant as that was not the reasoning for the holding of the Court.

On ground 2 of the objection, counsel submitted that issue 1 formulated by the appellant?s counsel is incompetent same having been distilled from the incompetent ground 1 of the appeal since the law is settled that an issue for determination must be distilled from a competent ground of appeal. He referred to NGIGE VS. OBI (2006) 11 NWLR (PT. 999) PAGE 1, C.P.C. VS INEC (2011) 18 NWLR (PT. 1279) PAGE 493 AT 532-533 (G-A), 570 (D-E).

?In response to the 6th respondent?s preliminary objection, the appellant?s counsel submitted that even if the principle of law referred to by the 6th respondent?s counsel was an obiter, it was so interwoven to the later part of the ruling that it radically influenced the decision of the Court and was of such potency and capability as to give rise or form the basis of this appeal. He referred to BONGO VS. GOVERNOR OF ADAMAWA STATE (2013) 2 NWLR PT. 1339 PAGE 403.

Counsel submitted that the Court commenced its ruling when it proceeded to rationalize that intra party feud is not justiciable, therefore the respondent?s contention that that part of the record is a rendition of the dictum of the learned jurist, AKA?AHS JSC in ARDO VS. NYAKO (2014) VOL. 58 (PT. 1) is not borne out by the records.

In the consideration of the 6th respondent?s objection, I find it necessary to start from the accepted principle on judgment writing. It is a settled principle that no rule or law can be laid down on how to write a judgment as no two judges or arbitrators can write the same way. Judgment writing is a matter of style and every judge is entitled to employ a style that best suits him. What is important is that a just conclusion is arrived at from a logical reasoning and proper application of the applicable law. However, it is agreed that a good judgment should have some basic attributes or contents. In NDIBE & ORS VS. NDIBE (2008) LPELR ? 4178, this Court per Ariwoola JCA (as he then was) stated the essential components of a good judgment as follows:
(a)The setting out of the nature of the action

before the Court.
(b)The setting out of the issues in controversy
(c) A review of the case for the parties.
(d) Consideration of the relevant law.
(e) Specific findings of fact and conclusion.
(f) Reason(s) for the conclusion.

In ODUGBO VS. ABU (2001) 14 NWLR (PT. 732) PAGE 45 AT 100(G) the Supreme Court defined ratio decidendi as the principle of law upon which a particular case is decided. See also A. I. C LTD VS. N.N.P.C (2005) 11 NWLR (PT. 937) PAGE 563.

?I have considered the ruling on appeal in the light of the above authorities. The claim of the appellants was clearly set out, followed by the objection raised by the parties. The Court then stated the submission of Counsel to both parties. After the summary of submissions of counsel, the Court stated the issue for

determination, the law applicable, the finding of fact by the Court and its decision. For a clear understanding of the decision of the Court, I reproduce the issue identified by the Court, the reasoning and the conclusion. It reads:
?Those are the submissions of counsel to both parties. The issue for determination is ?whether the preliminary objection has merit or not?.
It is settled law that Court have consistently declined to entertain jurisdiction in inter party disputes concerning the candidate a political party chooses to sponsor for an election. The Court cannot therefore compel a political party to sponsor one candidate in preference for another candidate of a self-same party. The reason being, that no Court can manage a political party for the members thereof. The issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rules and constitution of the said party. It is thus a domestic issue and not such as would be justifiable in a Court of law ? per K. B. Aka?ahs JSC at page 669 in the case of ARDO V NYAKO (2014) VOL. 58 PART 1 (sic).From the

facts available, three different primary elections were held by three different groups of the Peoples Democratic Party and each producing its candidate. The first group which the Plaintiff belongs is headed by Ken Emeakayi- led Executive Committee. The 2nd group where the 4th Defendant belongs in headed by Retired General Aliyu Kama- led Caretaker of South East Zonal Committee Caretaker and the 3rd group where the 6th Defendant is headed by a group known as Oguebego- led State Executive Committee. To make matters worse the first group which the Plaintiff belong i.e. Ken Emeakayi- led State Executive Committee was declared by my brother Hon. Justice E.S Chukwu in Suit No. FHC/ABJ/680/2014 to be illegal as their tenure has elapsed on 24/9/2014 more than 3 months before the primary election was held in January, 2015.
Based on the above, I entirely agreed(sic) with the learned counsel for the 1st Defendant/Appellant that this Court lacks jurisdiction to entertain this suit and is accordingly struck out. Since there is no jurisdiction, the other preliminary objections filed will not be considered as it will amount to an exercise in futility. I so hold.”

It is very clear from the above that the principle of law upon which the Court reached its decision is that the Court has no jurisdiction to entertain inter-party or intra party dispute concerning sponsorship of a political party. It is also clear that the fact and the findings which informed the decision of the Court is that three different primary elections were held by three different groups within the party. I have no doubt in my mind that the Court declined jurisdiction based on the principle of law stated and the findings of facts.

The purpose of an appeal is to find out whether on the evidence before the Court and the applicable law, the trial Court came to a right decision. See OBASI VS. ONWUKA (1987) NWLR (PT. 61) PAGE 364, CONTRACT RESOURCE NIG. LTD & ANOR. VS. U.B.A PLC (2011) 1 LPELR ? 8137 (SC). What the 6th respondent?s counsel referred to as an observation and a remark by the Court is the principle of law upon which the Court based its decision. It is not a remark or a mere observation made in passing. The finding of the Court that three primary elections were held by the party is the basis or the reason

for the finding that the dispute is an intra party dispute and that finding is the basis for the conclusion that the Court has no jurisdiction. The statement of the applicable law, the finding, the conclusion and the decision of the Court are so interwoven that it is impracticable to separate one from another.

The 6th respondent also submitted that ground 1 of the appeal is argumentative. Where a ground of appeal alleges misdirection or error in law as in ground 1 of this appeal, the particulars and the nature of the alleged misdirection or error must be clearly stated. The ground of appeal must not contain any argument or narrative. See Order 6 Rule 2 (2) and (3) of the Court of Appeal Rules, 2011, OLUFEAGBA VS. ABDUL-RAHEEM (2009) 18 NWLR (PT. 1173) PAGE 384 SC, LAWAN & ORS. VS. THE INC. TRUSTEES OF YANBAHEED ASSOCIATION (2014) LPELR- 23588 (CA). The 6th respondent?s counsel excised part of ground 1 of the appeal from the entire ground of the appeal. If the entire ground 1 is read together, it is not difficult to see that what that ground is alleging is an error of law. In my view, it is not argumentative. Even if it is, the fact that a ground

of appeal and in this case, a part of a ground of appeal is argumentative is not enough to deny the appellant his constitutional right of appeal when the ground of appeal has thrown up serious issues for determination by the Court. The 6th respondent?s contention is as to form which is in the realm of technicality. The position of this Court and all other Courts in the land is that the Court must always lean towards a decision on the substance of the case and not on technicality as to mere form when the other party has not been misled or left in doubt as to what the complaint of the appellant is and has not suffered any injustice. See AIGBABABI VS AIFUWA (2006) 6 NWLR (PT. 976) PAGE 270. In my humble view, the 6th respondent?s objection is devoid of merit and it is hereby overruled.

I have considered the issues formulated by counsel. I am of the view that the issue thrown for determination in this appeal is whether the Court was right when it held that the Court lacks the jurisdiction to entertain the suit.The appellant?s counsel submitted that each of the reliefs sought by the appellant at the Court below was premised on breach or

violation of Section 87 (4) (c) of the Electoral Act, 2010 (as amended). Therefore the holden by the Court below that the matter was an intra party feud or a domestic affair was a wrong surmise in law as authorities are now ad idem that an aspirant in a political party who is dissatisfied with the conduct of the party?s primary like the appellant herein can approach the Court. He referred to JEV VS. IYORTYOM (2014) 14 NWLR (PT. 1428) PAGE 575.

Counsel also submitted that the finding of the Court below that three (3) different primaries were held within the party is not supported by the record placed before it, it is therefore perverse. Counsel argued that even if the Court rightly found that three (3) primaries were conducted within the party, it is no longer the law that an issue relating to multiple primaries is a domestic issue of a political party. He referred to LADO VS. C.P.C (2011) 18 NWLR (PT. 1279) PAGE 689, C. P. C. VS. OMBUAGU (2013) 18 NWLR (PT. 1315) PAGE 66, UGWU VS. PDP (2015) 7 NWLR (PT. 1449) PAGE 478 AT 498, EMENIKE VS. PDP (2012) 12 NWLR (PT. 1315) PAGE 556, GASSO 1 VS. TUTORE (2013) 14 NWLR (PT. 1374) PAGE 221.

In response to the above submissions, the respondents? counsel submitted that the appellant?s averments in Paragraphs 26, 28, 30, 30, 31 and 32 of his Statement of Claim is a clear admission that three primaries were conducted within the party, therefore the case of JEV VS. IYORTYOM (SUPRA) relied on by the appellant is not relevant to the instant case as the case refers to the conduct of a primary and not three primaries. Counsel argued that the primary conducted by Ken Emeakayi ? led Anambra State Executive which was an illegal process cannot confer any right on the appellant because the Federal High Court in suit No. FHC/ABJ/CS/680/2014 had pronounced that executive dead, its tenure having expired in September, 2014 more than three months before the conduct of the primary election. Counsel further argued that the appellant having emerged from a primary conducted by a State Executive of the party, that primary is tainted with illegality because only the National Executive Committee of the party has the right to conduct the party?s primaries for National Assembly. They relied on CHARLES ODEDO VS. EJIKE OGUEBEGO & 4 ORS (2015) 13 NWLR (PT.

1476) PAGE 229 AT 237, YAR?ADUA VS. YANDOMA & ORS. (2015) 4 NWLR (PT. 1448) PAGE 123. Counsel further argued that the appellant not having participated in the primary organized by the party, his case cannot be situated within the provisions of Section 87 (4) and (9) of the Electoral Act and therefore, he does not have a justifiable grievance. They referred to EMENIKE VS. PDP (2012) 12 NWLR (PT. 1315) PAGE 556 AT 600.

The appellant in his replies filed in response to the above submissions submitted that the case of the appellant at the Court below was that he participated in the same primary with the 4th and 5th respondents and pleaded the result of the primary in Paragraph 26 of his Statement of Claim contrary to the assertion that he did not show the result of the said primary. Counsel also submitted that the appellant?s complaint is over the primary conducted by the National Leadership of the party and his grouse is against the leadership of the party which explains the institution of the suit against the National Leadership, therefore the cases of EMENIKE VS. PDP (SUPRA) and YAR?ADUA VS. YANDOMA are inapplicable to this case.<br< p=””

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The conditions which must exist before a Court can exercise jurisdiction on a matter brought before it are as follows:
(a) The Court must be properly constituted as regards the number and qualification of its members on 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 coming up before the Court was initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.?

The dispute in this case centres on the 2nd criteria stated above which deals with the nature of the subject matter brought before the Court for adjudication. The law is trite that the jurisdiction of the Court is determined by the nature of the subject matter and the claim before the Court. See ABIA STATE TRANSPORT CORP. & ORS. VS. QUORUN CONSORTIUM LTD (2009) 9 NWLR (PT. 1145) PAGE 1, ADETAYO & ORS. VS. ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) PAGE 169. The law is also trite that in the determination of the nature of the

plaintiff?s case and the claim before The Court, it is the Writ of Summons and statement of claim or any Originating process by which the action is commenced that must be considered. Therefore, in the determination of the facts which are germane to the consideration of this appeal, this Court must confine itself to the facts pleaded in the statement of claim. In Paragraphs 26 ? 33 of the Statement of Claim, the appellant averred as follows:
26. ?On 7/12/14, 1st Defendant, acting through the National Assembly Electoral Committee, did conduct the primary election for Nnewi North/South/Ekwusigo Federal House of Representatives Constituency wherein Plaintiff, along with 4th & 5th Defendants stood for the primary election. At the end of polls, Plaintiff emerged victorious and was declared the winner by the returning officer having polled 93 votes out of 123 accredited delegates as against 4th Defendants 12 votes and 5th Defendant?s 9 votes. The result of the said primary election shall be found upon at the trial.
27. Notwithstanding the conduct of the said primary election, and Plaintiff?s emergence thereof as the

candidate of the 1st Defendant, the 2nd and 3rd defendants for self-serving reasons substituted the name of the Plaintiff with that of the 4th Defendant contrary to the party?s Electoral Guidelines and Electoral Act.
28. The result of the said primary election was properly recorded on the official result sheets Form ? Code PDOO4/NA/2014, Signed by the Returning Officer and publicly announced in compliance with the PDP Electoral Guideline Elections 2014. The copy of the said result was given to contestants and security operatives present by the Returning Officer. Copy of the result shall be found upon at the trial.
29. As precipitated by the development in Paragraph 27 above, Plaintiff quickly took step to confront some of the members of the Party?s National leadership in order to ascertain the reason for the manipulation of the outcome of the Primary election only to be informed by some National Officers of the 1st Defendant who acknowledged the fact that he won convincingly the primary election but that the result had been manipulated to favour the 4th Defendant as the preferred choice of President Jonathan. In similar fashion,

names of other aspirants preferred by powerful persons within the party made the list of candidates in Anambra State.
30. Wide spread discontent and criticism greeted the list of candidates published by the 1st Defendant for Anambra State. The dust thrown up by the hullabaloo was yet to wane, when a rebel group within the party effected a contraption and manipulation with the 6th Defendant. In a strange twist of event, 6th Defendant accepted the name of the 5th Defendant as the candidate of 1st Defendant from a rebel group in the party known as Oguebego- led Anambra State Executive, who held a primary parallel to that organized by the 1st ? 3rd Defendants.
31. The drama playing out in the submission and publication of list of candidates has thrown up three characterization of aspirants seeking to fly the 1st Defendant?s flag at the February, 2015 polls:
(a) The first group, where the Plaintiff belongs, were those who contested and won primary election conducted by 1st ? 3rd Defendants in tandem with Ken- led State Executive Committee.
(b) The second group, where the 4th defendant belongs, were those who emerged from a

supposed primary conducted by 1st ? 3rd Defendants in tandem with Rtd. General Aliyu Kama- Emeakayi led Caretaker or South ? East Zonal Committee Care-Taker.
(c) The third group, where the 6th Defendant belongs, were those who emerged from a supposed primary conducted by a group known as Oguebego-led State Executive Committee in exclusion of 1st ? 3rd Defendants.?
32. Plaintiff shall at the trial contend that the validity of primary election cannot be located by the 1st ? 3rd Defendants organizing the primary election alone but in the organizational synergy between the 1st ? 3rd Defendants and the recognized elected State Executive Committee. Plaintiff is a product of the later.
33. Plaintiff has neither committed any breach of 1st Defendant electoral Guidelines, Constitution, and the Electoral Act or any other statute to warrant his disqualification as the Candidate of the 1st Defendant for the 2015 general election for Nnewi North/South/Ekwusigo Federal Constituency of Anambra State having won convincingly the primary election.?

?The above averments are clear and unambiguous and

the Court below rightly found that three primaries were held by the party. In addition to the above stated facts, the appellant also averred in Paragraph 32 that he participated in the primary conducted by the 1st ? 3rd respondents and the recognized elected State Executive Committee which committee is Ken Emeakayi-led Committee. The respondents? counsel forcefully submitted that the Emeakayi-led Committee has been declared dead or illegal by the Federal High Court in suit No. FHC/ABJ/CS/680/2014. First, Sections 131 and 136 of the Evidence Act provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. The burden of prove as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.

Secondly, the contents of a document may be proved by primary or secondary evidence. All facts, except the contents of documents may be proved by oral evidence. When a judgment of a Court or any other official proceeding

has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or the proceeding except the document itself. See Sections 85, 125 and 128 (1) of the Evidence Act. The combined effect of the above provisions of the Evidence Act is that only a certified true copy of a judgment of a Court is admissible as evidence of existence of such judgment. In this appeal, there is nothing on record to prove the contents of the judgment in suit No. FHC/ABJ/CS/680/2014. The statement or submissions of the respondents? counsel is not a proof of the existence or the content of the judgment. A Court is not entitled to presume the existence of or place reliance on a document not tendered before it. See OPARA & ORS. VS. OHANU & ORS. (1999) 9 NWLR (PT. 618) PAGE 290, WASSAH & ORS. VS. KARA & ORS. (2014) LPELR ? 24212(SC).

As far as this Court is concerned based on the records of appeal, the case of the appellant is that he participated in the primary conducted by the 1st ? 3rd respondents and the Ken Emeakayi-led State Executive Committee and he has grievances with the result of the said primary

declared by the 1st ? 3rd respondents. From the recent decisions of the Supreme Court, the law in respect of the jurisdiction of the Court to entertain any matter relating to sponsorship of a candidate is that the jurisdiction of the Court is limited to the situation or the scope stated in Section 87 (4) (C) and (9) of Electoral Act. Those provisions are reproduced below:
“(4)(c) in the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a political party shall, where they intend to sponsor candidates ?
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre 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 the aspirant?s name shall be forwarded to the Commission as the candidate of the party
The above provisions were considered and construed by the Supreme Court in the following cases.

(1) C.P.C VS. OMBUGADU (2013) 18 NWLR (PT. 1385) PAGE 66.
(2) UKACHUKWU VS. P.D.P (2014) 17 NWLR (PT. 1435) PAGE 134.
(3) ANGANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410) PAGE 437.
(4) JEV. VS. IYORTYOM (2014) 14 NWLR (PT.1428) PAGE 575.
(5) ARDO VS. NYAKO (2014) 10 NWLR (PT.1416) PAGE 591.
(6) UGWU VS. P.D.P (2015) 7 NWLR (PT.1459) PAGE 478.
(7) AKPAMGBO-OKADIGBO VS. CHIDI (NO.1)(2015)10 NWLR (PT.1466 ) PAGE 171
(8) DANIEL VS.INEC (2015) 9 NWLR (PT.1463) PAGE 113
By the combined effect of Section 87 (4) and (9) of the Electoral Act (as amended) and the above cases, the Federal High Court or the State High Court or the High Court of the Federal Capital Territory can entertain any action in respect of the nomination or sponsorship of a party by a political party if the following conditions exist.
(1) The claims or reliefs sought must be those that fall or can be subsumed under Sections 87 (4) and (9) of the Electoral Act, 2010 (as amended).
(2) The complaint must be founded on the selection or nomination of a candidate for an election.
(3) There must have been a primary for the selection or nomination of a candidate by a political party.

(4) The claimant must be a member of the political party and must have or ought to have participated in the primary.
(5) An aspirant who claims that any of the Provisions of the Electoral Act and the guidelines of a political party has not been complied with or complains of rigging in the primary has a right to approach the Court for redress.
Since the appellant herein averred that he participated in the primary conducted by the 1st ? 3rd respondents and the Ken Emeakayi- led State Executive Committee, he has a right to approach the Court to seek redress for his complaints of manipulation of the result of the primary and the Court has the jurisdiction to entertain same. The Court also has the jurisdiction and the duty to decide which of the primaries is the valid and authentic one and who actually won the primary. See C.P.C. VS. OMBUGADU (SUPRA), UGWU VS. P.D.P (SUPRA). The case of LADO VS. C. P. C (SUPRA) where the Supreme Court held that once there arises a dispute as to which of the two primaries conferred a right of candidature on the parties to represent a political party in an election, the matter is taken outside the

preview of Section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act, 2010 (as amended) is no longer the law.

In view of the foregoing, the issue identified for determination is resolved in favour of the appellant. The Federal High Court was wrong when it declined jurisdiction to entertain the appellant?s claim. Accordingly, this appeal succeeds. The decision /ruling of the Federal High Court, holden at Awka delivered by Hon. (Justice) M. L. Abubakar in suit No. FHC/AWK/CS/24/2015. Hon. (Dr) Harry N. Oranezi vs. Peoples Democratic Party & Ors. on 19th March, 2015 is hereby set aside. The suit is hereby remitted to the Federal High Court and shall be heard by another Judge of the Court.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft of the judgment, just delivered by my Lord, MISITURA OMODERE BOLAJI-YUSUFF, JCA. The reasoning and conclusion arrived at by his Lordship in the said Judgment represent my thoughts on this appeal. Hence, I have nothing more useful to add to it.
I, too allow the appeal and adopt the consequential orders contained in the leading judgment, as mine.

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RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my brother MISITURA BOLAJI YUSUF, J.C.A. I agree with his opinion and conclusions.
I abide by the consequential order made and I also allow the appeal.

Appearances

Chief G. Tagbo Ike, Esq. with Chioma Okolomba (Miss)For Appellant

AND

I. Aroh, Esq. for 1st Respondent

Echezona Etiaba, Esq. with Chinedu Onuchukwu, Esq. for 2nd Respondent

F. A. Iteshi, Esq. for 3rd Respondent

Clement Ezika, Esq., B. C. Ojini, Esq., Ifeanyi C. Ifediba, Esq. for 4th Respondent

No appearance for 5th Respondent

C. B. Anyigbo, Esq. for 6th RespondentFor Respondent

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HON. (DR) HARRY N. ORANEZI v. PEOPLES DEMOCRATIC PARTY & ORS (2016)

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