HON. IMO EDET UDO v. MR. GODSWILL AKPABIO & ORS (2013)

HON. IMO EDET UDO v. MR. GODSWILL AKPABIO & ORS

(2013)LCN/6623(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of December, 2013

CA/C/65/2013

RATIO

JURISDICTION: WHETHER THE ISSUE OF JURISDICTION MAY BE RAISED AT ANY STAGE OF A PROCEEDING

The law is also settled that when in a case, the jurisdiction of a court to adjudicate over or entertain the case is challenged on any recognized and established point of law and the court makes a finding that it lacks the requisite jurisdiction by upholding the challenge, the only proper and appropriate order it had the authority to make, is one striking out the case for want of jurisdiction. This position of the law was reaffirmed by the Supreme Court in the recent case of Dangana v. Usman (2012) 2 MJSC (Pt. III) 146 at 176 when it stated that:-

“It is trite that where a court finds that it lacks jurisdiction to adjudicate on any matter, the proper order to make is an order of striking out. Saleh v. Monguno (2003) 1 NWLR (Pt. 801) page 221; Okafor v. Nwaife (1973) 1 ALL NLR (Pt. 1) page 238.”

In the earlier case of Lado v. CPC (2011) 12 MJSC (Pt. II) 101 at 143, the apex court had held that:-

“Where a court holds that it has no jurisdiction to entertain a case before it, the only appropriate order the court can make in the circumstance is an order striking out the case. See Okoye v. Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (199) page 501; Peter Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565.”

See also Olorode v. Oyebi (1984) 5 SC, 1; Otapo v. Sunmonu (1987) 3 NWLR 58, 181; CBN v. Kato (1994) 4 NWLR (339) 446; NDIC v. CBN (2002) 7 NWLR (766) 272 at 300. The law enunciated in these authorities is based on the very fundamental nature of the issue of jurisdiction in our judicial adjudicatory system which has been variously described by the apex in several cases. For instance, in the above case of Dangana v. Usman, the intrinsic nature of the jurisdiction of a court in respect of a matter brought before it was put thus:-

“Jurisdiction has always been a threshold issue. It must be decided once it is raised and quickly too. A trial or a hearing conducted without jurisdiction amounts to a wasted effort, a complete nullity no matter how well the matter was decided. That explains why the issue of jurisdiction can be raised at any time, in the trial court, in appeal, or in the Supreme Court, for the first time. Jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity dead and of no legal effect whatsoever. That is why an issue of jurisdiction is crucial and fundamental in adjudication and has to be dealt with first and foremost.” See pages 190 and 183 of the report, respectively. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYAWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

HON. IMO EDET UDO – Appellant(s)

AND

1. MR. GODSWILL AKPABIO

2. PEOPLES DEMOCRATIC PARTY

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had by the originating summons dated and filed on the 19/4/2012 at the Registry of the Federal High Court, Uyo, Akwa Ibom State, submitted the following questions for determination by that court:-

1. Whether having regard to the Provisions of Article 17.1 of the Constitution of the Peoples Democratic Party (2nd Defendant) and Paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections of the Peoples Democratic Party, the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant is qualified to contest the gubernatorial primaries of the 2nd defendant held on 15th January, 2011 for the purpose of choosing its candidate for the office of Governor of Akwa Ibom State at the general elections held in April, 2011.

2. If question 1 above is answered in the negative, whether the plaintiff should not have been returned as the duly elected candidate of the 2nd defendant for the office of the Governor of Akwa Ibom State at the gubernatorial primaries held on 15th January, 2011 having secured the second highest number of lawful vote(s) cast at the said primaries, the 1st defendant not being qualified ab initio to contest therein.

3. Whether in the circumstances of this case, and having regard to Article 17.1 the Constitution and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections of the 2nd defendant, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff is not the only qualified candidate to contest the general election of April, 2011 on the platform of the Peoples Democratic Party for the office of Governor of Akwa Ibom State.

Reliefs were sought by the Appellant against the Respondents as follows:-

1. A DECLARATION that the 1st Defendant is not qualified to contest the re-run primary election of the 2nd Defendant held in Akwa Ibom State on 15th January, 2011 for the purpose of electing the party’s candidate for the office of the Governor of Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2. A DECLARATION that the submissions of the name of the 1st Defendant to the 3rd Defendant by the 2nd Defendant as its candidate for the office of Governor of Akwa Ibom State during the gubernatorial election held in April, 2011 is in flagrant violation of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections, Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) null and void.

3. A DECLARATION that the Plaintiff is the only candidate validly nominated to contest the governorship election of April, 2011 on the platform of the 2nd Defendant for the office of the Governor of Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

4. AN ORDER declaring/returning the Plaintiff as the winner of the January 15th 2011 re-run Akwa Ibom State Primary Election of the 2nd Defendant, and afortiori the legitimate candidate of the Peoples Democratic Party for the Governorship election of 26th April, 2011 in Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

5. AN ORDER setting aside the purported nomination of the 1st Defendant by the 2nd Defendant and the acceptance of the nomination of the 1st Defendant by the 3rd Defendant as Governorship candidate of the 2nd Defendant for Akwa Ibom State as well as the purported election of the 3rd Defendant as Governor of Akwa Ibom State having not qualified to contest the primary of the 2nd Defendant held on 15th January, 2011 in the light of the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

A 41 paragraphs affidavit and later a 20 paragraphs Reply to the counter-affidavit both deposed to by the Appellant in support of the summons were filed and served on the Respondents.

The 1st Respondent had filed a notice of preliminary objection after receipt of the summons and later, the 1st and 2nd respondents’ counter affidavit was filed to oppose same.

Written addresses were filed and exchanged by the learned senior counsel who represented the Appellant and the 1st and 2nd Respondents in respect of both the preliminary objection and the summons which were heard together.

In the Ruling delivered on the 30/1/2013 titled “RULING ON PRELIMINARY OBJECTION”, the Federal High Court, after a review of the submissions by the learned senior and other counsel on the preliminary objection, held thus:-

“Those are the submissions of both learned counsel. I thank them for the illuminating authorities cited which I have read with some profit. I have carefully reviewed the argument of counsel on the preliminary objection. I have looked at the originating summons, the supporting affidavit, the preliminary objection and processes filed and found that this matter borders on pre-primary election matter which is an affair of the Peoples Democratic Party (PDP) as such this Court has no jurisdiction to entertain this suit See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) page 85.

The Preliminary Objection is hereby uphold (sic) and the suit struck out. I so hold.”

Apparently aggrieved and thoroughly dissatisfied with the above decision, the Appellant caused a notice of appeal to be filed against same on the 8/3/13, on four (4) grounds.

In the Appellant’s brief settled by Adebayo O. Adelodun, SAN, filed on the 29/4/13 as required by the practice in the court, two (2) issues calling for decision in the appeal, were set out as follows:-

“1. Whether the learned trial court was right to have determined the case on the Preliminary Objection alone without giving any consideration to the merit of the case and without evaluating and making findings from the evidence offered by the parties (Grounds 1 and 2).

2. Whether the Appellant’s case is one of pre-preliminary election matter as held by the trial court and whether the decision of the Supreme Court in PEOPLES DEMOCRATIC PARTY v. TIMIPRE SYLVA & 2 OTHERS (2012) 13 NWLR (Pt. 1316) 35 is applicable to this case in the light of its peculiar facts. (Grounds 3 and 4)”.

On his part, Paul Usoro, SAN for the 1st and 2nd Respondents had filed a notice of preliminary objection on the 13/11/13 and a Respondent’s Notice on the 3/6/13 but deemed on the 7/10/13. Also filed for the 1st and 2nd Respondents, were the 1st and 2nd Respondents’ brief on 14/10/13 and Reply address in support of the Respondents’ Notice and in response to the Appellant’s Reply address, on the 15/11/13. Although the 3rd Respondent was duly served with all the processes of the appeal, it did not file any reaction thereto.

At the oral hearing of the appeal on the 21/11/13, the learned Senior Counsel for the Appellant and the 1st and 2nd Respondents leading other counsel adopted and relied on the briefs and other processes filed in the appeal as their submissions in support of their respective positions in the appeal. We were urged by each of them to uphold their submissions in the determination of the preliminary objection and the appeal.

Mr. Jacob Akpong appeared for the 3rd Respondent only to confirm that the 3rd Respondent did not file any process in the appeal. In line with established practice, I intend to consider and decide the preliminary objection first.

The orders sought on the notice of the objection are:

“1. AN ORDER striking out the Appellant’s issue 2 as formulated and argued in the Appellant’s brief of arguments dated and filed on 29/4/2013 on the ground that the said issue 2 is wholly incompetent, the arguments therein not deriving from the Appellant’s Grounds 3 and 4 as contained in his undated Notice of Appeal filed on 08/3/13 nor from the judgment of the lower court; or

2. In the alternative, an order striking out paragraphs 5.07 to 5.20 of the Appellant’s brief of arguments dated and filed on 29 April 2013 on the ground that the said paragraphs of the Appellant’s Brief of Arguments which are argued under issue 2 thereof are wholly incompetent containing as they do arguments that do not derive howsoever (i) from the Appellant’s Grounds 3 and 4 as contained in his notice of appeal from which Grounds the Appellant distilled his issue 2; nor (ii) from the judgment of the lower court.

3. Such Further or Other Orders as this Honourable Court may consider necessary or fit to make in the circumstance of this preliminary objection.”

Put briefly, the grounds of the objection and submissions therein are that the Federal High Court decided the matter on the preliminary objection by the 1st Respondent that the Appellant’s claims related to pre-primary election issues which were not justiceable and declined jurisdiction to entertain the case. That the Federal High Court did not determine the Appellant’s claims in the case since it declined jurisdiction, but the Appellants’ issue 2 said to have been distilled from grounds 3 and 4, deals with the claims in the case. The submissions by the Appellant under issue 2 are said not to have arisen from the judgment of the Federal High Court or related to the issue and so incompetent. Madumere v. Okafor (1996) 4 NWLR (445) 637 at 644 and Omo v. JSC, Delta State (2000) 12 NWLR (682) 444 at 454-5 were cited for the submission and we are urged “to strike out/or dismiss the arguments in the Appellant’s issue 2”.

In the Appellant’s reply brief, issue 2 and grounds 3 and 4 were set out and it was contended that they are related to each other and that the Appellant was only being consistent in the case by the submissions under issue 2 that the Federal High Court had jurisdiction to entertain his claims. That the submissions only bring out the implications of Section 87 of the Electoral Act which vested the Federal High Court with jurisdiction in cases like that of the Appellant. The cases cited for above are said to be inapplicable and we are urged to dismiss the preliminary objection.

As a foundation in the consideration of the objection, I would refer to the case of NNPC v. Famfa Oil Ltd. (2012) 5-7 MJSC (Pt. 1) 1 at 29 paragraphs E-G where the Supreme Court per, Rhodes-Vivour, JSC in the lead judgment had held that:-

“If I may add to the above, where, as in this appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a motion of notice (sic) since the preliminary objection if successful would not have terminated the hearing of the appeal as there are other grounds of appeal to sustain the appeal.

Preliminary objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the court from hearing the appeal.”

The apex court was dealing with a preliminary objection filed pursuant to the provisions of Order 2, Rule 9 of the Supreme Court Rules, which are impari materia, with the provisions of Order 10, Rule 1 of the Court of Appeal Rules, 2011, under which the 1st and 2nd Respondents’ objection was brought.

The present preliminary objection appears to be more inappropriate because it only challenges an issue and not any of the grounds of the appeal which even if successful, would not affect any of the grounds of the appeal but only result in the striking out of the issue in question, leaving the grounds and the other issue distilled from them for determination in the appeal. Since the objection does not challenge the competence and the hearing of the appeal, but only an issue or submissions thereon which even if struck out, would not terminate the proceedings in the appeal in limine, by the above position of the apex court, its employment in the appeal is inappropriate.

Be that as it may, since the Nigerian judicial oracle did not say that such an objection is not valid and therefore incompetent, but only inappropriate, I am prepared to consider it because the parties have joined issues on and canvassed it in their briefs. The grounds 3 and 4 of the notice of appeal are as follows:-

“Ground 3- the trial court erred in law when it held that the matter borders on pre-election which is an affair of the Peoples Democratic Party and declared that the court does not have jurisdiction to entertain the suit.

Particulars of error

a. The facts of this case on the affidavit border on improper nomination of candidate arising from the conduct of the re-run primaries of 15th January, 2011 of the 2nd Respondent.

b. The facts of this case on the affidavit borders on the interpretation of section 14(a) of PDP electoral guidelines 2010 and other relevant legislations regarding nominations.

c. The court reviewed the argument and submissions of the parties without stating clearly whether he agreed or disagreed with the arguments advanced by both sides.

d. The court placed reliance on PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 when the facts and the ratio in the case above cited are distinguishable from the present suit.

e. The trial court has a duty to agree or disagree with either of the parties as a threshold to taking a decision.

Ground 4- the learned trial Judge erred in law when he held in the following passage of his judgment that:-

“I have looked at the Originating Summons, the supporting affidavit, the preliminary objection and processes filed and found that this matter borders on pre-primary election matter which is an affair of the Peoples Democratic Party (PDP) as such this court has no jurisdiction to entertain this suit. See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) page 85.”

Particulars of error

a. The case of the Appellant who participated in the re-run primaries and complains of the outcome thereof is certainly not a pre-primary matter as erroneously held by the trial court.

b. The case of PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 relied upon by the trial court is not applicable, and same was misapplied to this case.

c. The misapplication of the case of PDP v. Sylva (supra) to the Appellant’s case whose facts and circumstances are clearly different has occasioned a grave miscarriage of justice.

d. Further grounds of appeal will be filed upon receipt of the Ruling of the trial court.”

I have earlier set out the Appellant’s issues and a calm reading of the above grounds along with the Appellant’s issue 2, would clearly show the issue is derivable, comes and enures from the grounds. The issue is directly related and connected to the grounds from which it was said to have been distilled as it is a succinct and concise statement of the question that needs to be determined in respect of the complaint in the grounds. For that reason, the issue is a competent one because it is not the 1st and 2nd Respondents’ case that the grounds do not arise or come from the decision by the Federal High Court.

As seen above, the learned SAN, for the 1st and 2nd Respondents had alternatively argued that the paragraphs 5.07 to 5.20 of the Appellant’s brief wherein submissions were made under issue 2 do not derive from the grounds 3 and 4 or from the decision appealed against and so are incompetent.

Let me say that there is no requirements of the law that I am aware of, that submissions in the brief of a party to an appeal must derive from the grounds of the appeal or the judgment appealed against. It should be remembered that the requirement of the law is that submissions of a party to an appeal shall be based on issues formulated from the grounds of an appeal and not on the grounds themselves. Put another way, appeals are argued in the briefs of argument on the basis of the issues identified and distilled from the grounds of appeal and not the grounds themselves. See Aja v. Okoro (1991) 7 NWLR (203) 260; Oruobu v. Anekwe (1997) 5 NWLR (506) 618 at 630-1; Owowhosa v. Odiuzo (1999) 1 NWLR (586) 173; Akinkunmi v. Sadiq (2001) 2 NWLR (696) 101; Ezemba v. Ibeneme (2004) 14 NWLR (894) 617; Amadi v. Nno (2000) 6 SC (Pt. 1) 66. However, because issues are formulated from the grounds of an appeal, the submissions thereon in a party’s brief are expected to be in line with and support of the issues in respect of which they were canvassed or made. Where such submissions made in a party’s brief under or in respect of an issue do not relate to but differ and so do not support the issue, they would be at large and of no moment in the determination of the issue. They would be of no help to either the party making them or the court in the determination of the issue in question and so incompetent and liable to be struck out.

In the present appeal, the Appellant’s submissions in paragraphs 5.07 to 5.20 under Issue 2 do not have to derive from the grounds 3 and 4 of the appeal or the judgment appealed against to be competent, but they must be in line with and support of the issue under or in respect of which they were proffered to be of any real value or worth in the determination of the issue. The grounds 3 and 4 and issue 2 communally, raise the question whether the Appellant’s claims arose from or relate to the pre-primary election matter of the 2nd Respondent as decided by the Federal High Court in the determination of the preliminary objection before it. As a reminder, the Federal High Court did not consider and decide the merit of the Appellant’s claims on the basis of the evidence of the parties. It may be recalled from the reliefs claimed by the Appellant that the primary complaint was on the nomination of the 1st Respondent as the candidate of the 2nd Respondent for the 2011 Governorship election in Akwa Ibom State based on the facts deposed to in the affidavits in support of the originating summons.

Reading the submissions in paragraph 5.07 to 5.20 of the Appellant’s brief carefully, it is clear that they are entirely on the merit of the Appellant’s case before the Federal High Court which it did not consider and pronounce on in its determination of the preliminary objection raised by the 1st and 2nd Respondents on the ground of non-justiciability of the case.

Now, I should point out that the issue of justiciability of the Appellant’s case raised in Appellant’s issue 2 is different, distinct and independent of the merit of the case, although they may be related by the facts giving rise to the case. However, in the determination of each, different facts and factors would apply and be considered by the court as justiciability of the case is a condition precedent to the assumption of the requisite jurisdiction to adjudicate over the merit of the case. Therefore until the Appellant’s case was justiciable, arguments or submissions on its merit would undoubtedly be premature and would be of no moment in the determination of the issue of justiciability of the case. To that extent, learned SAN for the 1st and 2nd respondents is right, and so I agree with him, that the submissions in paragraph 5.07 to 5.20 of the Appellant’s brief are not in line with and do not support the issue 2 under which they were proffered and are of no assistance or aid to both the Appellant and the court in the determination of the said issue. For that reason, they are not relevant to the determination of the issue. However, since there are submissions in paragraph 5.01 to 5.06 and 5.21 to 5.28 under Issue 2, which are in line with and support of the issue, I would consider them under the issue in order to do substantial justice in the appeal. The law is that the primary object, aim and function of a court is to decide the rights of the parties to a case in accord with the substantial justice thereof and not to punish them for mistakes or errors they committed in the presentation of their respective cases. See Solanke v. Somefun (1974) 1 SC, 141 at 148; University of Lagos v. Aigoro (1985) 1 NWLR, 143 at 154; Nneji v. Chukwu (1988) 3 NWLR (81) 184; Alsthom v. Saraki (2000) FWLR (28) 2267.

In the result, the 1st and 2nd Respondents’ objection on the alternative order/ground contained on the face of the Notice of the Preliminary Objection, succeeds and is upheld. Consequently, I would discountenance the submissions in paragraphs 5.07 to 5.20 of the Appellant’s brief in the determination of the Appellant’s issue 2 under which they were made.

Looking at the Appellant’s grounds of appeal, the two (2) issues submitted in the Appellant’s brief are derivable and arose from them and so I intend to determine the appeal on the said issues.

Issue 1

The submissions by the learned senior counsel for the Appellant are that the Federal High Court had the duty to evaluate the evidence proffered by the parties which it failed to do by determining the Appellant’s case on the preliminary objection raised by the 1st Respondent. Pages 575 – 578 of the record of the appeal were referred to and it was said that the Federal High Court only restated the arguments of counsel at pages 561-575, but did not consider and evaluate the evidence before it. The cases of Abubakar v. Joseph (2008) 13 NWLR (1104) 307 at 360 on the difference between a summary or restatement of evidence and evaluation of evidence and Buhari v. INEC (2008) 19 NWLR (1120) 246 at 409-12 as well as Aregbesola v. Oyinlola (2011) 9 NWLR (1253) 458 at 604-5 on the principles to be considered in the evaluation of evidence were cited. That the failure by that court to evaluate the evidence in the case was said to have occasioned grave injustice to the Appellant.

In further argument, the learned SAN said the failure to consider the merit of the case is against the law that trial and intermediate courts must consider all issues before them even if a preliminary objection can terminate the case in order to do justice to the parties, relying on Chukwu v. Soleh Boneh (2000) 3 SCNJ, 18 at 38 and Bruwal Shipping Ltd. v. Onwadike Ltd. (2000) 11 NWLR (678) 387 at 403, inter alia. It was submitted that since the Federal High Court did not consider the merit of the Appellant’s case, this court is in a position to invoke its powers under section 16 of the Court of Appeal Act to do so and indeed has a duty to so do by the authorities of Bobmanuel v. West (2008) 12 NWLR (1102) 603 at 619; Ojo v. Gov. of Oyo State (1989) 1 NWLR (95) 1 and Eholor v. Osayande (1992) 6 NWLR (249) 524. We are urged to resolve the issue in Appellant’s favour.

The learned SAN for the 1st and 2nd Respondents has argued the Appellant’s issue 1 as his own issue 3 and had submitted that the Federal High Court having determined that it had no jurisdiction to entertain the Appellant’s claim, it was not required to make any determination of the substantive issues in the originating summons. Relying on Hassan v. Aliyu (2010) 17 NWLR (1223) 547 at 626, he argued that the cases of Osondu v. Soleh Boneh and Brawal Shipping v. Onwadike (both supra) did not propound the principle that all trial and intermediate courts must consider all issues before them even if the preliminary objection raised before them was one challenging jurisdiction. The decisions by the apex court in the cases were stated by the learned senior counsel who contended that the decision in Brawal Shipping v. Onwadike supports the stance by the Federal High Court not to determine the issues in the Appellant’s summons sequel to the success of the preliminary objection on its jurisdiction. On the non-evaluation of evidence by the Federal High Court, it was submitted that all that that court needed to do in the determination of the challenge to its jurisdiction was to look at and consider the Appellant’s originating summons containing the facts relied on and the reliefs claimed therein. Reliance was placed on Lado v. C.P.C (2011) 18 NWLR (1279) 689 at 736; Onuorah v. R. & P.C. (2005) 6 NWLR (921) 393 and Babington-Ashaye v. E.M.A. Gen. Ent. Ltd. (2011) 10 NWLR (1256) 499 at 516 and it was further submitted that the evaluation of the evidence tendered by the parties on the substantive issues in a matter would not arise in the determination of the challenge to the jurisdiction of the court. The submissions for the Appellant on the issue are said to be in error of law.

In the Appellant’s Reply Brief, the case of Elelu-Habeeb v. A.G.F. (2012) 13 NWLR (1318) 423 at 486 was cited on the law that a court has a duty to determine the merit of a case even where a preliminary objection succeeds.

Issue 2

The submissions by the learned SAN for the Appellant on the issue in paragraphs 5.01 – 5.06 and 5.21 – 5.27 of the Appellant’s brief, are to the effect that the Appellant was, from the facts of his case, an aspirant at the re-run primaries conducted on the 15/1/2011 and so entitled to complain about the conduct of the said primaries. That the Federal High Court has the jurisdiction to entertain the complaint of the Appellant under section 87(9) of the Electoral Act, 2010 (as amended) which was interpreted in the cases of Tukur v. UBA (2013) 4 NWLR (1343) 90 at 162 and Ombugadu v. CPC (2013) 3 NWLR (1340) 31 at 71. It was submitted that the Federal High Court did not properly consider the facts of the Appellant’s case before deciding that it lacked jurisdiction to entertain it and so was wrong in its decision. The cases of Dalhatu v. Turaki (2003) 15 NWLR (843) 310 and Okechukwu v. Okadigbo (2012) 7 SC 1 were cited on the right of the Appellant to bring the action before the Federal High Court and it was submitted that the case of PDP v. Sylva (2012) 13 NWLR (1316) 35 relied on by the Federal High Court in its decision, was inapplicable to the Appellant’s case. We are urged to resolve the issue in favour of the Appellant.

For the 1st and 2nd Respondents, it was submitted that on the issue that the Appellant’s complaints in the originating summons are pre-primary election matters because there was no complaint made therein on the actual conduct of the re-run primary or the result thereof. That the sole complaint by the Appellant is that the 1st Respondent was not qualified to take part in the re-run primary for the twin reasons that he allegedly did not go through the mandatory screening exercise nor produced his tax clearance as enjoined by the guidelines. It was submitted that these were pre-qualification and screening activities that precede the actual conduct of the primary election and are classified and defined as pre-primary election issues or matters which are not justiciable before any court as decided in the case of PDP v. Sylva (supra). According to the learned SAN, the Appellant appears not to have issues with the classification of his complaint as pre-primary issues or matters but that being an aspirant in the re-run primary he is entitled thereby, pursuant to Section 87(9) of the Electoral Act, to challenge the pre-primary election activities because he perceives them to be irregular. Relying on the PDP v Sylva, it was contended that Section 87(9) of the Electoral Act only vested right to challenge primary elections of a political party on a person who –

a) took part in the primary election, and

b) scored the highest votes thereat and

c) was denied the Party flag.

Furthermore, that it is clear from the decision in the case that for the aspirant’s complaints to be justiciable under the Section, it must be about the conduct of the primaries and not the activities that precede the conduct of the primaries or pre-primary election matters or issues. Also that the Appellant’s attempt to distinguish his case from that in PDP v. Sylva had missed the point that the Supreme Court in the case did not make any exception whatsoever for a court to entertain pre-primary election complaints at the instance of aspirants or to make such complaints justiciable howsoever. It was pointed out that the facts of the case of PDP v. Sylva are the same with those in the Appellant’s case because it was decided on the prequalification of a candidate to participate in the primary election of the party that was said to be a pre-primary affair of the party and not justiciable. The case of Emenike v. PDP (2012) 12 NWLR (1315) 556 was referred to and it was contended that all matters outside the provisions of section 87(9) are non-justiciable regardless of the status of the complainant as an aspirant. Further, that all processes leading to the actual primary and nomination of the party’s candidate, including pre-qualification processes and screening, are pre-primary election issues or matters that are exclusive affairs of a Political Party and not justiciable. Pages 596 and 598-9 of the Emenike v. PDP case were referred to for the argument and it was submitted that the case of Okechukwu v. Okadigbo (supra) relied on by the Appellant is not in his favour, but actually supports the 1st and 2nd Respondent’s case, that only complaints on the actual conduct of primary elections of a political party fall within the scope of section 87(9) and not pre-primary election matters. The case of Tukur v. UBA (supra) relied on by the Appellant was said to have been misapplied and quoted out of con while the case of Ombugadu v. CPC (supra) also relied on by the Appellant, is said to bear no relevance and so not apposite to the Appellant’s case. The differences in the facts of that case and the Appellant’s case were indicated and we are urged to affirm the decision by the Federal High Court that the Appellant’s complaint in the originating summons relate in their entirety, to pre-primary election matters and issues which are not justiciable.

The learned SAN for the Appellant had in the Appellant’s Reply Brief maintained and argued that the cases of PDP v. Sylva, Emenike v. PDP and Lado v. CPC (all supra) are not applicable to the Appellants case. The case of Nwazwunke v. Nwachukwu (2013) 3 NWLR (1342) 503 at 526 was cited on the locus of the Appellant to institute the action before the Federal High Court and it was submitted that the Respondents did not understand the case of the Appellant because the 1st Respondent was not qualified to contest the re-run primary, all the votes he scored thereat were wasted and so he, the Appellant became the aspirant with the highest number of votes. Again, we were urged to resolve the issue in favour of the Appellant.

I would start a consideration of the Appellant’s issue 1 by saying that the position of the law has generally been that it is the primary duty of a trial court, indeed all courts of law, and so incumbent upon it, to consider all competent issues properly placed before it in a case by the parties, evaluate all the evidence adduced by them and make pronouncements by deciding each of such issues, dispassionately. This is the position of the law restated in all the cases cited by the learned senior counsel for the parties on the point. See also Ojogbue v. Nmubia (1972) 6 SC, 277; Mogaji v. Odofin (1978) 1 ALL NLR, 313; Okonji v. Njokanma (1991) 7 NWLR (202) 131; Cookey v. Fombo (2005) 5 SC (Pt. II) 102; Daagir v. Kwaghkar (2006) ALL FWLR (306) 959 at 969; Duzu v. Yunusa (2010) 10 NWLR (1201) 80. In addition, as demonstrated in the cases cited by the learned SAN for the Appellant, a review of the evidence adduced by the parties in a case along with the submissions of counsel by a court in the course of its judgment or decision, is different and so not the same as the evaluation of the said evidence for the purpose making findings thereon. A review of evidence is, simply put, setting out a summary or resume of the evidence adduced by the parties before the court in support of their respective cases after the introduction of the facts of the case, in a judgment by the court. Evaluation of evidence involves the process of placing the evidence reviewed, oh the imaginary scale of justice and weighing it, in line with the facts to which it applies and the relevant laws and ascribing the deserved weight or probative value to it accordingly by drawing the necessary inferences on which the findings of the court would be based. See Baba v. N.C.A.T.C (1991) 5 NWLR (192) 388; Oraetoka v. Ajia (2006) ALL FWLR (321) 1312; Falomo v. Onakanmi (2006) ALL FWLR (298) 1242; Atiku v. State (2010) 8 NWLR (1199) 241 at 288.

There is no doubt here, because it is borne out by the record of the appeal, particularly the decision appealed against, that the Federal High Court did not, at all, undertake the evaluation of the evidence of the parties in the case but merely reviewed the submissions by the learned senior counsel for the Appellant and the 1st and 2nd Respondents on the preliminary objection by the latter and said it lacks jurisdiction over the case and consequently, struck it out.

In the earlier case of Lado v. CPC (2011) 12 MJSC (Pt. II) 101 at 143, the apex court had held that:-

It would appear therefore that since the Federal High Court had made a finding that it lacks the requisite jurisdiction to adjudicate or entertain the Appellant’s case on the ground that it related to or arose from the pre-primary election matters of the 2nd Respondent and so its domestic affairs, which are not justiciable, the only proper order it was entitled and had the power to make in the case, was to strike out the case in line with the above position of the law. After the finding that it lacks the jurisdiction to adjudicate over the case, its judicial authority and power over or in the case had become extinguished or expired since it is bound by that finding as a final decision made by it in the case. A decision by a court that it lacks the requisite jurisdiction to adjudicate over or entertain a case before it, is a final decision in law, and for all practical purposes, since there would no longer be pending issues in the case which it can, in spite of the want of jurisdiction, deal with. Such a finding, ruling or decision disposes of the right of the parties finally in the case even if not on the merit and makes the court functus officio at that stage, for want of jurisdiction to adjudicate over the case. See Akinsanya v. UBA (1986) 4 NWLR (35) 273; Igunbor v. Afolabi (2001) FWLR (59) 1284; Odutola v Oderinde (2004) ALL FWLR (217) 615. In the case of Isidaehomen v. Gov. Bendel State (1986) CA 6 (Pt. II) 6, it was held that a court with no jurisdiction should not proceed to hear evidence and that further hearing is a nullity and the proper order to make is to strike out the case.

With respect to the learned SAN for the Appellant, the case of Elelu-Habeeb v. A.G.F. (supra) also reported in (12) 2 MJSC (Pt. III) 1, did not lay the principle that where a trial court decides that it lacks the requisite jurisdiction to entertain a matter before it, it was required in law and so had the duty, to still proceed to determine the case on its merit. The decision by the apex court in the case is that this court was right to have considered the issues raised in the appeal before it after finding that the High Court had no jurisdiction to entertain the case before it from which the appeal emanated. The jurisdiction of this court to entertain the appeal before it was not raised before the court and so the court did not find that it had no jurisdiction to entertain the appeal and still went ahead to decide the merit of the said appeal. The objection to the jurisdiction of the Federal High Court in that case, was overruled by it and so it proceeded to decide the case on the merit from which an appeal was brought to this court which made a finding that the Federal High Court lacked jurisdiction to entertain the case and went ahead to deal with the issues raised before it in the appeal. That was the step commanded by the apex court in the statement quoted by the learned SAN for the Appellant in his Reply Brief. The situation in that case is clearly quite different from the Appellant’s case where the objection to the jurisdiction of the Federal High Court to adjudicate over the Appellant’s case, was upheld by that court and in line with the law in the above authorities, struck out the case. In my respectful view, a finding by a trial court that it lacks the requisite jurisdiction on any valid and recognised ground in law, to adjudicate over or entertain a case before it, is a decision by that court that it has no legal and judicial authority and power to look into or consider the merit of a dispute it is called upon to decide by the parties. Even though it is a court of first instance whose decision is subject to an appeal to this court under the Constitution, it lacks the vires under the same constitution to in effect, vary the final decision that it lacks jurisdiction to adjudicate over the case by proceeding to decide the issues raised in the case on the merit either by hearing evidence or as in the Appellant’s case, consideration and evaluation of the affidavit evidence setting out the facts on which the case was premised. That procedure would be to encourage or make that court to sit on appeal over its decision and take a procedural step which is in direct, irreconcilable conflict with its earlier decision. Once again, the moment a trial court decides that it lacks jurisdiction to adjudicate over or entertain a case before it, that would end its authority over the case and the only proper order it can make in the case, is the consequential one of formally terminating the case; the order to strike out the case out of its cause list.

The above position would appear to be an exception to the general principle of law that a court, trial or appellate, has a duty to consider all the issues placed before it by the parties in a case, as stated and restated in the cases of inter alia, Chukwu v. Soleh Boneh and Irolo v. Uka (both supra). The court must have decided that it is vested with or seized of the requisite jurisdiction to adjudicate over or entertain a case before its duty to consider any or all the issues raised therein by the parties can properly arise in the case. Where a court decides that it lacks the jurisdiction to adjudicate over a case, its primary legal and judicial duty ends in the case with that decision, at its stage.

In the above premises, the submissions by the learned SAN for the Appellant that the Federal High Court had the duty to evaluate the evidence of the parties would have applied only if the objection to its jurisdiction had been overruled and dismissed and that court had found that it had the requisite jurisdiction to entertain the Appellant’s case. The cases cited by him on the duty to and factors to be considered in the evaluation of evidence by a trial court, do not avail the Appellant in this appeal. The Appellant’s case is not one in which the Federal High Court failed to evaluate the evidence adduced before it by the parties, but one of lack of jurisdiction on the part of that court, which is the crucial condition precedent to existence of the duty to embark on or engage in the evaluation of such evidence.

In the result, my resolution of the Appellant’s issue is that the Federal High Court was right to have struck out the Appellant’s case after a finding that it lacks the requisite jurisdiction to adjudicate over it. After such finding, that court had no power and duty to embark on determining the case on the merit over which it lacks jurisdiction to adjudicate. The issue is resolved against the Appellant.

On the issue of whether the Federal High Court was right to hold that the Appellant’s case arose or related to the pre-primary election matters of the 2nd Respondent and therefore non-justiciable; Appellant’s issue 2, my first port of call are the relevant facts as contained in the Appellant’s affidavit in support of his originating summons, on which the case was brought or initiated by him before the Federal High Court. They run into several pages of the record of the appeal but for a full appreciation of the Appellant’s case, most of the depositions by him must speak for themselves. Here they are:-

1. That I am the Plaintiff in this case by virtue of which I am quite conversant with the facts to which I herein depose.

2. That I am a registered member of the Peoples Democratic Party, Akwa Ibom State Chapter. Copy of my Party Membership Card and letter of appointment as Convener for PDP are hereby attached and marked Exh. “1” and 2 respectively.

6. That in consideration of my immense contribution to our great Party, PDP, my people across the 31 Local Government Areas of Akwa Ibom State came together and expressed their willingness and desire to nominate me as the Governor of Akwa Ibom State in 2011.

7. That having accepted the call/invitation of the people of Akwa Ibom State, I made up my mind and accepted to contest the 9th of January, 2011 Gubernatorial Primaries of the PDP; which after cancellation was re-scheduled to the 15th January, 2011.

8. That as a registered member of the Peoples Democratic Party, Akwa Ibom State Chapter, I duly expressed my interest in Akwa Ibom State Gubernatorial Nomination. Copy of my Expression of Interest Form titled Peoples Democratic Party Expression of Interest for Gubernatorial Nomination and PDP’s Nomination Form for Gubernatorial Primary Election, 2010 are hereby attached and marked Exhs. ‘3’ & ‘4’.

13. That I contested the said Peoples Democratic Party’s Gubernatorial Primary Election for Akwa Ibom State with Chief Godswill Obot Akpabio, 1st Defendant herein, and one Engr. Frank Okon Daniel. Further, I was the only person amongst the three aspirants who met all the requirements of the party and was so cleared to contest the primary election in Akwa Ibom State. My Clearance Certificate was signed by Senator Tunde Ogbeha and Alh. Mohammed Baraje, as Chairman and Secretary of the Governorship Screening Appeal Panel respectively.

15. That at Port-Harcourt, I was confronted with a false petition that I was not a party member, despite my membership card presented to the said panel.

16. That as required by the party guidelines, I appealed within 24 Hours to the Appeal Panel presided over by Sen. Tunde Ogbeha, and I was cleared on the 27th day of December, 2010. Further, I was issued with Clearance Certificate Form CC/PD/G2010 No. 0000232. A copy of the clearance certificate is hereby attached and marked Exh. ‘7’.

18. That when I arrived at Uyo Township Stadium with my delegates, we were blocked at the gate by agents of the 1st Defendant and when we eventually entered after much pressure on the agents aforesaid from my delegates, the leader of the team who came to conduct the primary election made a statement that it was the 1st Defendant only that was cleared to contest the primaries in Akwa Ibom State.

19. That my interest as a serious contender in the aforesaid primary election and for the post of Governor of Akwa Ibom State was greatly prejudiced by the said unguarded statement of the leader of the team and that of the State Chairman of the Party.

20. That I protested to the panel at the Uyo Sport Stadium and presented my original Clearance Certificate and certified true copy of the aforesaid certificate, which despite the protest excluded me from participating in the exercise and disenfranchised my delegates.

21. That I then petitioned the then National Chairman of our Party on the 10th of January, 2011 that I was excluded from the exercise. Further, the reply to my appeal was sent to me by a letter dated 14th January, 2011 and signed by Chief Olusola Oke former National Legal Adviser of the Party. Copies of my protest letter and reply are attached and marked Exhs. ‘8’ & ‘9’ respectively.

22. That the Peoples Democratic Party’s Gubernatorial re- run Primary Election for Akwa Ibom State was re-scheduled to 15th January, 2011 as per the reply signed by Chief Olusola Oke.

23. That I know as a fact that Engr. Frank Okon Daniel was not cleared to contest the primaries for non-payment of tax as at when due, and also for the fact that his Certificate of Clearance was purportedly signed by one Prince Uche Secondus (the then National Organising Secretary of the party), who not being the Chairman/ Secretary of the South South Governorship Screening Panel nor the Chairman/Secretary of the Appeal Panel sitting at Abuja, was not mandated by the National Executive Committee of the Party to have so acted.

24. That I know as a fact that the said Engr. Frank Okon Daniel had purportedly paid all his three years tax on 22nd Nov., 2009, being Sunday and a non-working day.

25. That the Chairman and Secretary of the Gubernatorial Appeal Panel were distinguished Sen. Tunde Ogbeha and Alh. Muhammed Baraje respectively.

26. That I fully participated in and contested the said Peoples Democratic Party’s Gubernatorial Primary Election for Akwa Ibom State held on 9th January, 2011 and the re-run held on 15th January, 2011 and won.

27. That I participated in the 15th day of January, 2011 primaries held at Uyo Township Stadium (although most of my delegates were not allowed to vote) I won the primary election by securing 1 vote against the 1st defendant who was not qualified to contest and Engr. Frank Okon Daniel who returned zero vote.

28. That despite my victory in the aforesaid exercise, the pre-print return sheet of the primaries was allegedly signed by the former National Chairman of our Party (PDP), Dr. Okwezilieze Nwodo days after he was removed from office by an Enugu High Court Order on the 11th day of January, 2011 but which order was served on the 12th day of January, 2011. Further, by a resolution of the Party duly passed and upon a motion by the then National Legal Adviser of the party on 13th January, 2011 at its National Convention, the then National Chairman was replaced by Dr. Mohammed Bello, and same was announced at the National Convention of the Party on 13th January, 2011.

29. That I know as a fact that the 1st defendant on record was not qualified to have contested the Gubernatorial Primary Election for non-payment of pensional income tax payable as at when due and/or non submission of his tax clearance certificate payable as at when due for the last preceding three years to 2010 and/or evidence of exemption from payment of personal income tax.

30. That despite the fact as contained in paragraph 29 above, the 2nd defendant arbitrarily allowed the 1st defendant to participate in the primary election of the 15th January, 2011; and thereafter forwarded his name to the 3rd defendant for the 26th day of April Governorship General Election in breach of the relevant provisions of PDP electoral Guidelines for Primary Elections, 2010. Attached herewith and marked as Exh. ’10’ is the Return Sheet of 15th January, 2011 Primary Election purportedly signed by Dr. Okwesilieze Nwodo even when he had seized to be the Chairman of the Party.

31. That despite the falsity of the document referred to in paragraph 30 above, the 3rd defendant accepted and allowed the 1st defendant to contest the general election of April 26th 2011 without pre-requisite qualifications as contained in the PDP electoral guidelines, 2010.

32. That the qualification of any member aspiring for Gubernatorial seat are as spelt out in the Electoral Guidelines for Primary Election 2010 for the Peoples Democratic Party. A copy of the said guidelines is attached herewith and marked as Exh. ’11’.

33. That I know as a fact that the 1st Defendant did not provide any evidence of payment of personal income tax or any valid exemption therefrom to the 2nd Defendant with his nomination forms or even to the 3rd defendant in his form CF001.

34. That the 2nd Defendant herein forwarded the 1st defendant’s name to the 3rd defendant without compliance with the 2nd Defendant’s guidelines for primary election.

35. That I know as a fact that the 2nd Defendant purportedly fielded the 1st Defendant herein as the candidate of the 2nd Defendant for Governorship Election in Akwa Ibom State in April 26th, 2011 election in disregard of the provisions of the Constitution of PDP and its Electoral Guidelines for Primary Elections.

36. That I know as a fact that the non-qualification of the 1st Defendant puts me as the legitimate candidate of the People Democratic Party having scored the next highest number of votes in the said primaries held on 15th January, 2011.”

These averments contain the fulcrum of the Appellant’s case which in brief, is that he was the only qualified aspirant who contested the 2nd Respondent’s re-run primary election conducted on 15/1/2011 for the nomination of a candidate under the platform of the party for the Gubernatorial Election held in April, 2011 in Akwa Ibom State. That because the 1st Respondent was not qualified to contest the said Re-run Primary Election on the grounds that he was not screened by the 2nd Respondent and did not produce his tax clearance certificate as required by the party guidelines, the Appellant who scored only (1) vote at the primary election as the only qualified aspirant to contest the primary election, was the legitimate candidate of the 2nd Respondent having scored the next highest number of votes in the primaries. The 1st Respondent as an aspirant who participated in the primaries, was declared winner thereof and so nominated by the 2nd Respondent to the 3rd Respondent as its candidate for the Governorship election.

It may be recalled that the Appellant’s submissions on the issue as contained in paragraphs 5.01- 5.06 and 5.21 – 5.27, which I had reviewed earlier, are largely on the legal right, entitlement, capacity or locus standi of the Appellant to bring the action under 87(9) of the Electoral Act, 2010, (as amended) and the jurisdiction of the Federal High Court under the said section, to entertain the action. Perhaps, I should say that the right or entitlement or locus standi of the Appellant, as an aspirant who participated in the primaries in dispute, under the provisions of section 87(9) of the Electoral Act was not a ground upon which the 1st and 2nd Respondents preliminary objection was premised before the Federal High Court and it was not a ground considered and relied on by the Federal High Court in the decision appealed against. The primary and only ground of the objection referred to, considered and relied on by the Federal High Court, in its decision to hold that it lacks jurisdiction to adjudicate over the Appellant’s case, is that the case was in respect of pre-primary election matters which are not justiciable. This is what Federal High Court said in the finding which appears at pages 575-6 of the record of the appeal:-

“I have carefully reviewed the argument of counsel on the Preliminary Objection. I have looked at the Originating Summons, the supporting Affidavit, the Preliminary Objection and the processes filed and found that this matter borders on pre-primary election matter which is an affair of the Peoples Democratic Party (PDP) as such this court has no jurisdiction to entertain this suit. See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) pg. 85. The preliminary objection is hereby uphold (sic) and the suit struck out. I so hold”.

It is clear therefore that the right of the Appellant to bring the action as an aspirant who participated in the primaries under the provisions of Section 87(9) of the Electoral Act was not considered in the above decision and not part of it. Even the jurisdiction of the Federal High Court under the provisions of the afore-named section of the Electoral Act was not part of the finding, by the Federal High Court in the finding above and not in dispute in this appeal. The provisions of the sub-section of 87(9) are thus:-

“87(9) 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 or Federal Capital Territory, for redress.”

These provisions have been justiciably interpreted by the Supreme Court in the cases of, among others, Chukwu v. Okadigbo and PDP v. Sylva (both supra) to the effect that an aspirant who participated in the primaries of a political party for the nomination of candidate for an election can approach the Federal High Court, for our purpose here, for redress of a complaint that the provisions of the Act or the guidelines of the political party were not complied with in the selection or nomination of the candidate of the party for an election. So the jurisdiction of the Federal High Court under section 87(9) was and is not in doubt or dispute either in the decision appealed against or in the present appeal.

As seen clearly, the decision appealed against was in effect, that the Appellant’s case is non-justiceable because it “borders on pre-primary election matter which is an affair of the Peoples’ Democratic Party (PDP).” Since the Federal High Court used and relied on this reasoning to decline jurisdiction, the question needs to be asked and answered from some of the submissions by the learned SAN for the Appellant on his issue 2, is whether that court was right that the facts deposed to by the Appellant in his supporting affidavit border on pre-primary election matter of the 2nd Respondent. That court did not define or even state what the pre-primary election matters of the 2nd Respondent were in relation to the complaint by the Appellant in his originating summons. The learned SAN for the 1st and 2nd Respondent had submitted that such matters are or include activities that precede the conduct of the primaries such as screening and qualification of aspirant to participate in the primaries which he argued, are not justiciable under section 87(9). He had relied on the case of PDP v. Sylva, for his definition or description of pre-primary election matters of the 2nd Respondent. It may be remembered that it was the contention of the learned SAN that from the provisions of section 87(9) and the statement by the apex court at page 126, which was set out by him in his brief of argument, the complaint of an aspirant must be about the conduct of the primaries. He however did not define or describe what the conduct of the primaries involves in the con of the provisions of the section. By the clear provisions of that section, the conduct of the primaries by a political party is to be incompliance with the provisions of the Act and the party’s guidelines in the selection and nomination of a candidate of the party. The conduct of the primaries of a political party therefore involves the processes of selection and nomination of a candidate of the party for an election. Section 156 of the Act defines primaries under it in the following terms:-

“156- In this Act, “Primaries” means an intra-party election by voters of a given political party to nominate candidates for elective office in accordance with a political party’s constitution and the law.”

In the con of section 87(9) and the above definition of primaries by the Act, conduct of primaries by a political party is the holding of an election by members of the party to select a candidate for an elective office and the nomination of the selected candidate by the party for the elective office in respect of which the primary was/were conducted. Both the election for the selection and the nomination of the candidate by the political party are to be in compliance with the provisions of the Act and the party’s guidelines. Selection is the actual and physical voting or election of a candidate by the party members at the primaries who, by the provisions of section 87(4)(b)(ii) of the Act, is:

“the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party…”

Nomination of the winner of the party’s primaries as the candidate for the elective office for which it was conducted by the party, is the formal or official notification of his name as such winner of the primaries and candidate of the party for the elective office in question, to the INEC. In the concluding words of Section 87(4)(b)(ii);

“the aspirant’s name shall be forwarded to the Independent National Electoral Commission as the candidate of the party, for the particular State.”

I am therefore of the firm view that for a complaint to be or come within the provisions of Section 87(9), it must be in respect of, in connection with or related to the conduct of the actual voting by members of a political party, the declaration of the winner of the voting at the primaries and/or the forwarding of the name of the declared winner of the voting by the party, to the Independent National Electoral Commission. Let me emphasise that both the selection and nomination of a candidate at the primaries must be in accordance or compliance with the party’s guidelines for such selection and nomination of the candidate.

A complaint by any of the aspirants who participated in the primaries that the party’s guidelines were not complied with in the process of the selection and nomination of a candidate is triable in the Federal High Court, among others. The Federal High Court was vested with and therefore has the jurisdiction to entertain such a complaint under the provisions of Section 87(9). The provisions though not meant to curtail the exclusive right of a political party to nominate a candidate for an elective office, they are meant and directed at ensuring that in the process of such nomination, the party abides by and complies with the provisions of the Electoral Act, and its own guidelines which binds it in the conduct of its primaries for the selection and nomination of a candidate. In the cases of PDP v. Sylva (supra) the apex court had put the position at page 147, thus:-

“section 87 of the Electoral Act. 2010 (as amended) apart from sections 31-37 of the Act, has dealt with the question of nominations and sponsorship by political parties with a view to examining the whole exclusive discretion of political parties in matters of choice of candidates for elective offices under the Electoral Act, 2010 (as amended) and thus bringing about internalizing democratic culture. The clear object the provision of section 87 is intended to achieve, besides the inculcation of internal democracy in the affairs of political parties in Nigeria, in the conduct of their primaries, includes making them transparent and providing level playing ground for their contestants in party primaries.”

This was the position emphasized by the apex court in the case of Tukur v. UBA (supra) cited by the learned SAN for the Appellant when it said:-

“However, the court has been empowered by the introduction of section 87(9) of the Electoral Act to see that the guidelines of a political party are not breached albeit with impunity 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.”

Since the complaint that is triable under the provisions of section 87(9) is one in respect of, connected with, relating to or arising from the conduct of a party’s primary election to select and nominate its candidate for an elective office and by an aspirant who participated in the primaries, any complaint that relates to, arises from or connected to procedures, events or acts which preceded the conduct of the primaries, such as screening of the aspirants for the primaries by the party, would clearly be the internal affairs of the party about which the courts have over the years, resisted and consistently declined to be drawn into, being political issues. In my firm view, issues such as the requirements for an aspirant to meet before he is cleared by the party to be eligible to contest its primary election for any elective post or office, are issues which arise and are dealt with by the party prior to the conduct of the primary election in the exercise of its inviolable right and discretion to choose its members who should contest the primaries. Such issues are and involve purely, internal affairs of the party which, in my opinion, the courts should continue to resist and consistently refuse to dabble into even with the provisions of Section 87(9) which deal with complaints from the conduct of the primary election of a political party. The interpretation of the provisions of the selection to include such issues would undoubtedly be an unnecessary and unjustifiable interference with the right of a political party to conduct its affairs politically and choose candidates to contest elective offices under its platform. As long as members of a party are provided a level playing field and allowed to freely contest the primary election from the beginning to the end, none of them should be permitted to resort the provisions of Section 87(9) over issues or matters which preceded the contest at the primary election, merely because he did not or better, he failed, to win the primary election. Any aspirant at such primary election would not and cannot reasonably, attribute his failure, or as the case may be, success at the primary election because one of the contestants did not meet any of the requirements to contest the primary election, as long as there was voting for all the contestants who participated in the election. I should emphasise, that issues of meeting the requirements of a political party by its members to be eligible to contest its primary election for any elective post or office are ones that arise and are decided before the actual conduct of the primary election, they precede and are therefore pre-primary election issues or matters of the political party to be decided or dealt with by it without interference by the courts. In the case of PDP v. Sylva (supra) at page 146, it was stated that:-

“The choice of candidates by political parties for elective offices being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any court as it is non-justiceable. The Electoral Act, 2010 (as amended) by its section 87 has attempted to mitigate the mischiefs highlighted by the Electoral Act, 2006, with a view to dispensing democratic culture of political parties. However, none of the provisions of the various Electoral Acts attempted in anyway, to interfere with the prerogative powers of political parties ad to the choice, sponsors hip and substitution of their candidates for elective offices.”

In the lead judgment, the apex court had, at page 126, paragraphs D-E held that:-

“The PDP has the right to bar the 1st Respondent, or any of its members from contesting its primaries if it so desires.”

By this position of the Supreme Court that a political party has the right to bar any of its member from contesting its primary elections, it follows necessarily, that a party would have the same right to allow or permit any of its members to contest such primary elections if it so desires. After all, the right to sponsorship or nomination by a political party to contest an elective office is not one to which anyone of its member is entitled to as of right under the constitution or Electoral Act. The provisions of Section 87(9) are very narrow in tenor and scope and the complaints justiciable thereunder must be restricted to those arising out of the actual conduct of primary elections of political parties and not matters clearly preliminary and precedent to the processes of actual voting at venue and date of the primaries. The courts must continue to avoid and prevent being drawn into taking purely political decisions on the choice of candidates for elections by political parties. As long as the primaries are transparent and members or aspirants were provided opportunity to freely participate therein, the courts would have no jurisdiction to interfere with the results or outcome of such primaries under Section 87 (9) of the Electoral Act.

In the present appeal, the fulcrum of the Appellant’s complaint in the originating summons and the facts deposed to by him in the affidavits in support thereof, is that the 1st Respondent was not screened by the 2nd Respondent and did not produce his tax clearance to be eligible to contest the primary election conducted on the 15/1/2011. According to the Appellant, the 1st Respondent was because of that, not qualified to contest the primary election. In the premises of the earlier view I have expressed, these are issues which are outside the conduct of the primary election, which relate to matters over which the 2nd Respondent had the right to deal with and decide before the conduct of the primary election and before allowing and presenting members who were eligible and so qualified to participate and contest in the primary election. They are issues which preceded the conduct of the primary election, a complaint from which an aspirant who participated therein is not vested with the legal capacity and the Federal High Court, for our purpose here, with the requisite judicial power and authority; jurisdiction, to entertain or adjudicate over by the provisions of Section 87(9). Having preceded the conduct of the primary election, such issues are beyond and outside the purview of the provisions of Section 87(9) because they are pre-primary election matters and so of the internal affairs of a political party to deal with. The learned SAN for the 1st and 2nd Respondents is therefore right in his submissions on the above position and I agree with him. In the result, I find no merit in the Appellant’s issue 2 which is resolved against him, accordingly.

In the final result on the Appellant’s appeal, since the two (2) issues raised by the learned SAN for the Appellant have been resolved against him, the grounds of the appeal lack merit and the appeal fails.

It may have been observed that I did not review and refer to the submissions by the learned silk for the parties on the invocation by the court of section 16 of the Court of Appeal Act. It was not an oversight, but deliberate, because whether or not it would be appropriate for the court to invoke the section depended on the outcome of the appeal. The application of section 16 of the Court of Appeal Act would only arise and be considered if and only if, the appeal succeeded and the decision of the Federal High Court appealed against, was set aside by the court. The issue would then arise as to whether the court should send the matter back to the Federal High Court to, since it did not, determine and make pronouncement on the merit of the Appellant’s originating summons, do so or the court should invoke the provisions of 16 of the Court of Appeal Act to determine the case. Now that the appeal did not succeed, the failure has overtaken the employment of or even consideration of the applicability of the section in the appeal.

Now to the Respondent’s Notice, filed by the learned SAN for the 1st and 2nd Respondents on the 3/6/13 and which was argued in their brief. The grounds relied on for the notice are as follows (without particulars):-

Ground 1

Without prejudice to the lower court’s determination of the Appellant’s complaints in his Originating Summons as pre-primary election matters and issues, the Appellant, not being the winner of the Re-run Primary, is not vested with locus standi in any case to institute and maintain the suit before the lower court in the con of and pursuit in Section 87(9) of the Electoral Act, 2010 (as amended).

Ground 2

Without prejudice to the lower court’s decision and our submissions before this Honourable Court in support thereof, even if the Appellant’s time, indubitably a pre-primary election matter, was justiciable, the subject-matter jurisdiction therefor resides with the State High Court and not the Federal High Court pursuant to the combined reading of Sections 251 and 272 of the Constitution of the Federal Republic of Nigeria (as amended) (1999 Constitution).

The learned SAN for the Appellant had in the submissions on the Respondent’s Notice, particularly at paragraphs 1.02 and 1.03 of the Appellant’s Reply brief, challenged the competent of the Notice on the ground that it and the issues formulated therefor, are at variance with the essence and purport of a Respondent’s Notice. That the Notice seeks for a reversal or replacement of the lower court’s decision. Cases of B.E.O.O. Industries Nig. Ltd. v. Maduakoh (1975) 12 SC (Reprint) 68 at 74 Obasanya v. Omolaja (2001) 2 WRN 21 at 35 and Arison Trading & Engineering Co. Ltd. v. Mil. Gov., Ogun State (2009) 5-6 SC (Pt. 1) 131 at 186, were cited in support of the submissions. We are urged to discountenance the Respondent’s Notice.

In the 1st and 2nd Respondent’s Reply addressed and Response to the Appellant’s Reply, the learned SAN for the 1st and 2nd Respondents had submitted that the Respondents’ Notice did not seek to reverse the decision by the Federal High Court that it lacks the jurisdiction to entertain the Appellant’s case on ground of non-justiciability, but rather, that the said decisions be affirmed by the court on the other grounds set out on the Notice, which was the principle enunciated in the cases cited by the learned SAN for the Appellant above. We are urged to uphold the competence of the Notice and the case of Uduma v. Arunsi (2012) 7 NWLR (1298) 55 at 99 was referred to.

The 1st and 2nd Respondent’s Notice was brought pursuant to and under the provisions of Order 9, Rule 2 of the Court of Appeal Rules, 2011, as clearly indicated on the face of the Notice. The concise provisions are thus:

“ORDER 9

2. A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied on by that court, must give notice to that effect specifying the grounds of that contention.”

I have set out the grounds of the Notice earlier and even at a passing glance, the said grounds do not, with respect to the learned SAN for the Appellant, seek “for a complete reversal or a replacement of the lower court’s decision…” In brief, the grounds in their tenor, only propose that the decision by the Federal High Court that it lacks the requisite jurisdiction to entertain or adjudicate over the Appellant’s case, should be affirmed and NOT REVERSED COMPLETELY, as argued by the learned silk for the Appellant. The notice and grounds specified thereon are incomplete compliance and accordance with the above provisions of Order 9, Rule 2 of the Court of Appeal Rule, 2011, and the general principle laid down in the cases cited by the learned silk. For that reason, the 1st and 2nd Respondents’ notice, without the need to expend further time and resource on it, is patently competent. The challenge to the Notice therefore fails and is dismissed.

The crux of the submissions by the learned silk for the 1st and 2nd Respondents in support of the Notice as argued under his issues 4 and 5 of their Brief are that the Appellant’s lack the locus standi to institute and maintain the action because he did not score the highest votes at the primary election and was denied the party’s flag. He relied on the Emenike v. PDP, Tukur v. Uba and Emeka v. Okadigbo (all supra). With respect to him, these cases did not decide that for an aspirant who participated in the primary election of his party must be the one who scored the highest number of the votes at the primary election to be vested with the locus standi to institute a complaint against the conduct of the primary election under the provisions of section 87(9).

The provisions themselves, as seen earlier, do not contain or even envisage such a requirement as a pre-condition for the legal capacity of an aspirant to challenge the conduct of the primary election of the party which he participated in. The common principles of law laid down in the cases by the apex court, is that for an aspirant or candidate, as the case may be, to be clothed with the locus standi under the provisions of Section 87(9), he must have taken part, participated and actually contested the primary election about which he complains. That is the plain and very clear language of the provisions of that section. That the aspirant did not score the highest votes at a primary election and that he was denied the party’s flag, are not and do not appear to be pre-conditions set out in the provisions of the section for him to have the requisite legal capacity or locus standi to institute an action in any of the named courts on the complaint that the primary election was not conducted in compliance or accordance with the Electoral Act or the party’s guidelines for that election. I find no merit in the ground of the Notice and it is dismissed.

The second ground of the Notice is that the Federal High Court had no subject matter jurisdiction to entertain the Appellant’s suit under sections 251 and 272 of the constitutions. The case of PDP v Sylva was very heavily relied on for the submissions on the ground. The learned silk for the Appellant did not address this ground specifically in his Reply Brief.

All that needs be said on the ground is that by the provisions of section 251(1) of the 1999 Constitution, the National Assembly was vested with powers to confer on the Federal High Court such other jurisdiction, in addition to that conferred on it by the section. The Electoral Act 2010 (as amended) is an Act of the National Assembly which in Section 87(9) vests and confers additional jurisdiction to that set out under section 251(1) of the Constitution, to entertain and adjudicate over complaints arising from or related to the conduct of primary elections by political parties in the country. So, apart from the ground relied on by the Federal High Court to decline jurisdiction over the Appellant’s case, this ground of the Notice does not, and cannot support that decision on the basis of the subject matter as provided for under section 251(1) of the constitutions. The jurisdiction vested in the Federal High Court under the provisions of Section 87(9) of the Electoral Act, 2010 is additional and specifically different from the subject matter jurisdiction specifically provided under Section 251 (1) of the Constitution. The subject matters in Section 251(1) of the Constitution and that or those in section 87(9) of the Electoral Act, though different, come and fall within the jurisdiction of the Federal High Court. If the Appellant’s case was in respect of the actual conduct of the primary election by the 2nd Respondent; and is not arising from pre-primary issues, there will clearly be no doubt that the Federal High Court would have jurisdiction to adjudicate over the subject matter under section 87(9) of the Electoral Act in addition to the jurisdiction vested in Section 251(1) of the Constitution.

In these premises, the ground cannot support the decision by the Federal High Court that it lacks the jurisdiction to entertain the Appellant’s case on the subject matter specifically set out in Section 251(1) of the Constitution. I find no merit in the ground and like ground 1 is dismissed.

In the result, the grounds of the 1st and 2nd Respondent’s Notice fail and it is dismissed.

On the whole, I find no merit in the Appellant’s appeal as well as the 1st and 2nd Respondents Notice and both are accordingly dismissed. The decision by the Federal High Court delivered on the 30/1/2013 is hereby affirmed by me.

Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYAWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in total agreement that this appeal is without merit. I also dismiss this appeal together with the 1st and 2nd Respondent’s notice.

I abide by all the other consequential orders contained in the lead judgment.

CHIMA CENTUS NWEZE, J.C.A.: My noble and indefatigable Lord, Garba JCA, obliged me with the draft of the leading judgment just delivered now. I am persuaded by His Lordship’s rigorous reasoning and compelling conclusion. This contribution is only limited to the divergent submissions of counsel on the competence of the Respondents’ Notice of the first and second respondents.

Counsel for the appellant canvassed the view that the grounds of the said Notice sought “for a complete reversal or a replacement of the lower court’s decision.” As the leading judgment has demonstrated, the said grounds only proposed that the decision of the lower court should be affirmed on other grounds.

Only recently, this court, in Makolo and Ors. v. The Minister, FMH and UD and Ors [unreported decision in CA/L/660/10 of March 27, 2013, per Nweze JCA], traced the evolution of the concept of respondent’s Notice to contend in our procedural laws to Order 7 Rule 13 of the Supreme Court Rules [LN 96 of 1961], citing LCC v. Ajayi (1970) 1 All NLR 291; Anyaduba and Anor v Nigerian Renowned Trading Co Ltd (supra); Eliochin v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Ogwuma Associated Co. Nig Ltd v. IBWA (1988) 1 NWLR (Pt. 73) 658; Oyekan v. B. P. Nig Ltd (1972) 1 All NLR (Pt. 1) 45; Afro Continental Seaways Ltd v. Nigeria Dedging Roads and General Works Ltd (1977) 5 SC 235.

In 1977, Order 7 Rule 13 of the Supreme Court Rules, 1977 replaced Order 7 Rule 13 of the 1961 Rules, Anyaduba and Anor v. Nigerian Renowned Trading Co. Ltd (supra). The 1977 Rules omitted the opening words of the corresponding provisions in the 1961 Rules. The subsequent 1985 Supreme Court Rules repeated the 1977 Rules in Order 8 Rule 3, per Obaseki, JSC in Anyaduba and Anor v. Nigerian Renowned Trading Co. Ltd (supra); Eliochin v. Mbadiwe (supra).

Order 9 Rule 2 of the Court of Appeal Rules, 2011, pursuant to which the said Respondent’s Notice was brought, was patterned after the 1985 Supreme Court Rules. The said Order 9 Rule 2 provides thus:

A Respondent who desires to contend on the Appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.

The authorities which have interpreted the above rules are many, indeed. Only some of them would be cited here, Adekeye and Ors v. Akin-Olugbade (1987) LPELR-SC.240/1985; Emeka v. Okadigbo and Ors (2012) LPELR-SC.69/2012; Ogungbadejo v Owoyemi (1993) LPELR-SC.279/1990; Ogwuma Associated Co. Nig Ltd v. IBWA (supra); Oyekan v. B.P. Nig Ltd (supra) Afro Continental Seaways Ltd. v. Nigeria Dedging Roads and General Works Ltd (supra); Eliochin v. Mbadiwe (supra); Okafor v. Bendel Newspapers Corporation and Anor (1991) LPELR-SC.314/1989. The indomitable Coker, JSC (of the Blessed Memory) in LCC v. Ajayi, dealt, most admirably, with the three characteristics of the said Rule.

The said three characteristics have been adumbrated over and over again in subsequent decisions of the apex court and of this court. They include the cases, already, cited above. For their bearing on this contribution some of these postulations may be noted here.

According to the authorities, a respondent’s notice is limited to points which have arisen in the appeal, Ogwuma Associated Co. Nig Ltd. v. IBWA (supra); LCC v. Ajayi (supra) 294-297; Sunmonu and Ors v. Ashrota (1975) 1 NMLR 16; where a respondent wants a reversal of the decision on certain exhibits or findings at the lower court, his correct procedure would be by way of a cross appeal and not a respondent’s notice, Oyekan v B. P. Nig. Ltd (supra); Ogwuma Associated Co. Nig. Ltd v. IBWA (supra).

The other examples include: where there are several parties and the respondent, seeks to vary the decision or order of the court on a point in which the appellant has no interest, Re Cavenders Trusts (1881) 16 CH D 270, approvingly, endorsed in Ogungbadejo v. Owoyemi (supra); where the respondent seeks to reverse any findings made by the lower court, Afro Continental Seaways Ltd v. Nigeria Dedging Roads and General works Ltd (supra); Eliochin v. Mbadiwe (supra); Ogungbadejo v. Owoyemi (supra).

Other instances may be cited: where a respondent wants a complete reversal of the decision of the lower court, he should file a cross appeal, Sunmonu and Ors v. Ashrota (supra); Ogungbadejo v. Owoyemi (supra); where a trial court failed to draw the right conclusion, thereby running into an error which could only be remedied by the appellate court, that correction can only be done through a cross appeal and not by a Respondent’s Notice to affirm or vary the judgment on other grounds, National society for the Distribution of Electricity v. Gibbs (1900) AC 280, 287, approvingly, endorsed in Adekeye and Ors v. Akin-Olugbade (supra).

I have perused the said Notice and the grounds again and again. I am in total agreement with the leading judgment that they are consistent with the intendment of Order 9 Rule 2 (supra) as interpreted in the cases cited above. Regrettably, however, the said grounds are unmeritorious. It is for these, and the more elaborate, reasons in the leading judgment that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the leasing judgment.

Appearances

A. O. Adelodun, SAN with

O. E. Akaiso,

B. S. Offiong and

AbdulkareemFor Appellant

AND

Paul Usoro, SAN with

O. Ojibara – 1st and 2nd Respondents

Jacob Akpong – 3rd RespondentFor Respondent

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