HON. MUSA MOHAMMED PALI V HON. DR. MOHAMMED SANI ABDU & ORS
In the Supreme Court of Nigeria
Thursday, January 10, 2019
Case Number: SC.209/2017
MARY UKAEGO PETER-ODILI
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
HON. MUSA MOHAMMED PALI
HON. DR. MOHAMMED SANI ABDUALL PROGRESSIVES CONGRESS (APC)INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
MAXIMS OF EQUITY- He who comes to Equity must come with clean hands
“In the Court of Justice, equity acting in personam will not allow a party coming to Court to seek justice for himself to come with dirty hands”
FACTS NOT IN DISPUTE
“The law is settled that facts not disputed or challenged are deemed to have been admitted and are, therefore taken as established: Timitimi v. Amabebe (1953) 14 WACA 3784, Odulaja v. Haddad (1973) 11 SC 35; Ogolo v. Fubara (2003) 11NWLR (Pt. 831).”
WHETHER A PARTY SHOULD BE ALLOWED TO REAP THE BENEFITS OF THEIR WRONG
“What the appellant contends is that by the result of 7th December, 2014 the National Executive of his party, the 2nd respondent found him to have committed an unlawful act by being in possession of election materials before the election and that notwithstanding he was the valid candidate that should be submitted by the 2nd respondent as he by that unlawful act had won the primary election. That posture is indeed unsustainable since a man will not be allowed by the court to take benefit from an act or omission of his own making as he cannot take advantage or reap a benefit from his own wrongs. See Abgareh v Mimrah (2008) 2 NWLR (Pt.1071) 378 at 424.”Per EJEMBI EKO, J.SC:
The Appellant was the Plaintiff in the suit No. FHC/ABJ/CS/1115/2014 he had brought on the Originating Summons at the Federal High Court, sitting at Abuja FCT. The cause of action arose in Alkaleri/Kirfi Federal Constituency in Bauchi State, from the primary election to nominate the candidate of the All Progressive Congress (APC), the 2nd Respondent, to contest at the general election for a seat at the House of Representatives wing of the National Assembly.
The Appellant claimed that he won the primary election of the APC conducted at Alkaleri, the headquarters of the said Alkaleri/Kirfi Federal Constituency, with the majority of lawful votes; that he was issued the Statement of Result, duly signed by the Chairman and Secretary of the 2nd Respondent, APC’s, primary Election Committee, and that the 1st Respondent (herein) who contested in the primary election against him disputed his victory, claiming, that he, and not the Appellant, was the actual winner of the primary election. The Appellant, as the Plaintiff, further averred that the 2nd Respondent, APC (his party) ignored his victory, and instead submitted to the independent National Electoral Commission, INEC, (the 3rd Respondent herein), the name of the 1st Respondent as its candidate for the general election in Alkaleri/Kirfi Federal Constituency.
The Respondents, as the Defendants at the trial Court, all vehemently denied the assertions of the Plaintiff/Appellant. The 1st & 2nd Respondents, corroborated by the 3rd Respondent (INEC), had alleged that the Plaintiff/Appellant; before the actual voting at the primary election, had in his possession unlawfully sensitive electoral materials; and that he had violently disrupted the gathering of the delegates for the primary election. And further that after he had disrupted the election, the Appellant emerged later and presented result sheets whereon he had unilaterally declared himself the winner of the primary election. The Respondents further averred that subsequent to the disruptive conduct of the Appellant the delegates were re-assembled, with the security at the venue beefed up and that the election thereafter proceeded peacefully and orderly, and that the 1st Respondent, at the conclusion of the election, was declared the winner of the election and the candidate of the APC for the said Alkaleri/Kirfi Federal Constituency. On this state of hostile facts to the assertion or contention of the Plaintiff/Appellant, the suit was nonetheless heard on the Originating Summons.
The Federal High Court (coram: E.S. Chukwu, J), however, came to final judgment – the salient portion of which can be found at pages 532 – 534 of Record. The portion is hereinbelow reproduced thus –
From the exhibits before the Court it is obvious there were no parallel elections. The 1st Defendant only asserted that the Plaintiff forcefully took the materials and wrote the result. The question is with what did the 2nd Defendant now conduct election with which it produced the result which they now flaunts as the official result of the 2nd Defendant and which they now the 3rd Defendant have risen to strongly defend, the said result is fraught with several flaws.
First, it was not properly issued as no relationship is shown between the conduct of the primary election for Alkaleri/Kirfi Federal Constituency except the mere listing of the name of 1st Defendant and his purported scores.
Secondly, the said result was not executed in accordance with the law as it had written signed for the Secretary without indicating who signed it.
What is more it is obvious from my evaluation of Exhibit C that it was made by the 2nd Defendant as an after taught. Be it as it may as I had earlier on commented the 3rd Defendant annexed all the results of what they observed in Bauchi State. But unfortunately they did not provide any evidence that they observed the primaries in this particular Constituency as to assist the Court.
They did not provide any evidence that they observe the primaries in this particular Constituency as they had done in the other 11 Federal Constituencies.
This was an abdication of its statutory duties which must be reprimanded in the strongest of terms.
The effect of this abdication of duty by the 3rd Defendant is that the Court will be left with the evidence of the Plaintiff against that of the 1st and 2nd Defendants. It was incumbent on the Plaintiff is case on preponderance to prove his case on preponderance of evidence which he may not have discharged in this case coming on the wells of the fact that the 2nd Defendant has in unequivocal terms stated who their candidate is and I so hold.
In the end, this case falls and it is accordingly dismissed. I make no Order as to cost.
That is my Judgment.
Hon. Justice E. S. Chukwu
Federal High Court, Abuja
The suit of the Plaintiff/Appellant was dismissed at page 534 of the Record on the ground that he, as the Plaintiff, did not prove his case “on the preponderance of evidence – coming on the wells of the fact that the 2nd Defendant has, in equivocal terms, stated who their candidate is and I so hold”. The lower Court in affirming the dismissal of the case by the trial Court, found that Exhibit A, the result sheet issued by the 2nd Defendant/Respondent supported the stance of the 2nd Respondent that the 1st Respondent was its nominated candidate, having won the primary election of 7th December, 2014 in Alkaleri/Kirfi Federal Constituency. The Lower Court found at page 669 – 670 of the record that –
The Report of the 2nd Respondent’s National Assembly Electoral Panel Bauchi State (Exhibit B) confirmed the result in Exhibit A as the correct result of the primary election, Exhibit C, the Report of Bauchi (State) National Assembly Primaries Appeal Committee which considered and decided the Petition the Appellant (Appellant herein) wrote to it, upheld the primary election as duly conducted and – the result in Exhibit A. During the hearing of his petition to it, the Appeal Committee considered the allegation against the (Plaintiff/- Appellant) that he had before the date of the primary election possession of the statement of result for the election and after the election contained to have in his possession election materials such as ballot papers.
The Lower Court further found as of fact that the Plaintiff/Appellant’s Further Affidavit, in response to the Counter-Affidavit of the 1st Defendant/Respondent to which was attached the result sheet, Exhibit A,
did not directly challenge or dispute the existence and content of Exhibit A. It was silent on it.
It also further found as a fact at page 676 of the Record that the Plaintiff/Appellant did not, in the Further Affidavit, say anything “concerning the part of the report that found as a fact that he had in his possession, before the election, copies of the result for the primary election and had in his possession days after the primary election, election materials such as ballot papers.” Consequently, the Lower Court concluded, on the authority of NISHIZAWA LTD. V. JETHWANI NISHIZAWA LTD (1984)12 SC 234 that the Plaintiff/Appellant having failed to deny the content of Exhibit C is deemed to have admitted it. This conclusion cannot be faulted.
This principle founded on common sense as well as the provisions of the Evidence Act has been practised and enforced in this Court for quite some time now, and it has become trite. The law is settled that facts not disputed or challenged are deemed to have been admitted and are, therefore taken as established: TIMITIMI v. AMABEBE (1953) 14 WACA 3784, ODULAJA v. HADDAD (1973) 11 SC 35; OGOLO v. FUBARA (2003) 11 NWLR (Pt. 831).
The facts of the case, as demonstrated by the Lower Court, are rather very formidable against the Plaintiff/Appellant. On these facts, upon my painstaking perusal of the briefs of argument filed and exchanged in this appeal, my firm view of this appeal is that it is frivolous and vexatious, and a clear case of the abuse of the process of this Court.
The Appellant is attacking the judgment of the Lower Court with as many as 14 grounds of appeal. About Ten (10) out of these 14 grounds of appeal are entirely on pure facts. Issue 1, formulated from 8 grounds of appeal, is an attestation of the fact that the 8 grounds of appeal raise issues of pure fact or at best issues of mixed law and facts. Issue 1 reads thus-
Considering the evidence before Court upon proper evaluation of same and the applicable law, was the Court below right in its decision that it was the 1st Respondent and not the Appellant that won the 2nd Respondent’s primary election and was rightly sponsored as the 2nd Respondent’s candidate for Alkaleri/Kirfi Federal Constituency.
Issue 4, formulated from grounds 8 and 10 of the grounds of appeal, complaining:
Whether the decision of the Court below setting aside the findings of the trial Court with regards to (1st) Respondent’s Exhibits A and C and the 3rd Respondents Exhibit C is not perverse and erroneous upon proper consideration and evaluation of the entire evidence on the record including the said Exhibits;
is also a complaint about the finding of fact by the Lower Court that the trial Court’s views, that Exhibit C — was made by the 2nd Respondent as an afterthought,” are perverse and not supported by the evidence in the printed record. The Appellant further submits that the Lower Court was wrong in setting aside the trial Court’s finding that Exhibit A was not executed in accordance with the law for not stating ex facie the person it was signed for.
In respect of these Exhibits A and C, the Lower Court found that the Appellant in his Further Affidavit did not dispute their contents and existence, and that the averments in the Counter- Affidavit through which they were brought into the proceedings were neither disputed nor challenged. It thus came to the inevitable conclusion that facts not disputed are taken as admitted and therefore established.
The Lower Court, at page 679 of the Record, found that the 2nd Respondent had duly certified Exhibit A “as the correct and true copy of the result in its custody”. This finding prompted its view that the “correctness and genuineness” of Exhibit A must be presumed until the Appellant who challenged it, rebuts it”. Did the Appellant de jure or de facto rebut the content and existence of Exhibit A? He never did so in discharge of the burden of proof imposed on him by Sections 131, 132 and 133 of the Evidence Act, 2011. The Appellant who desired the Court to give him judgment on the absence and content of Exhibit A had the evidential burden of rebutting its existence and true content, the 2nd Respondent having duly certified it as its document. The 2nd Respondent had also, in his unchallenged Counter — Affidavit, laid the necessary foundation that casts on the Appellant the evidential burden to rebut. Chief Olusola Oke, SAN, of Counsel for the Appellant, seems to think and erroneously too, that Exhibit A, not being a “public document” does not need to be duly certified by “the certifying officer of APC”. In my humble view, it is not unlawful to be superfluous. In any case, this is just much ado about nothing. The 2nd Respondent from whose custody 1st Defendant/Respondent’s Exhibit A was duly certified had itself produced and exhibited to the Counter-Affidavit the same document, Exhibit A, which it duly marked also as Exhibit A.
The Counter-Affidavit of the 2nd Defendant/Respondent had in paragraph 3(iii) thereof averred:
That after the primary election results were collated, the 1st Defendant emerged winner with majority of lawful votes and was thereby nominated as the 2nd Defendant’s candidate. Exhibit A is the result sheet of the said primary election certified by the 2nd Defendant.
The Appellant did not, in any further affidavit in response to 2nd Defendant’s Counter-Affidavit, make any effort to challenge, rebut and or dispute the instant averment of the 2nd Defendant/Respondent. The averment in paragraph 3 (iii) of the 2nd Defendant’s Counter-Affidavit is therefore, in law, deemed admitted by the Appellant.
Having found from the printed record sufficient facts or evidential materials in support of the Lower Court’s finding of facts, that in relation to Exhibits A & C the trial Court’s findings of fact and holdings were perverse and not supported by the available facts on record, I am prepared not to disturb such findings. Accordingly I hereby affirm them.
The 1st Defendant’s/Respondent’s Exhibit C is found at pages 214-215 of the Record. The findings and recommendations of the APC Bauchi State National Assembly Primaries Appeals Committee contained in paragraph 2 thereof (at page 215 of the Record) are consequently upon the Appellant’s appeal to the Committee. This domestic Tribunal owes its establishment and existence to Exhibit M5 APC 2014 Guidelines for the Nomination of Candidates for Public Office, annexed to the Appellant’s Supporting Affidavit.
The Appeals committee, whose proceeding is Exhibit C, was set up pursuant to guideline 16 (b) of the said APC Guidelines. The Appellant submitted himself to the jurisdiction and adjudication of his petition to this body. The Appeals Committee unanimously dismissed the petition of the Appellant having found that the Appellant-
“1. Continued (to be in the) possession of election materials (ballot papers) days after the election
2. Possession of advanced statement of result.”
I have not seen any sufficient materials that would warrant my holding, as suggested by the senior counsel on behalf of the Appellant, that SEN. GASSOL v. TUTARE & ORS (2013) 3 – 4 SC (pt. 111) 44 at 83 – 84 is apposite to the peculiar facts of this case. The Committee in Exhibit C has not been shown to have been set up to rival or compete with the High Courts in any sphere of jurisdiction specifically vested in the said High Courts by Section 87(9) of the Electoral Act, 2010, as amended. In any case, the invitation to us to invalidate the provisions of guideline of APC Guidelines for the Nomination of Candidates for Public Office should have been made a substantive relief in the Originating Summons if the plaintiff/Appellant was very mindful to have it invalidated. I find the submission and invitation to nullify Exhibit C, just coming from the blues at this stage of the proceeding not only mischievous, but also a clear evidence of Appellant’s desperation.
Exhibit C confirms the Appellant’s deleterious conduct amounting to ex dolo or ex turpi causa non oritur actio that makes it unconscionable for the Appellant to come to the temple of justice to seek justice or a remedy with dirty hands. He had attempted to “steal” the election. His coming to Court, actively supported by officers of the Court, as the lawyers are, for the Court to ratify, endorse or approve his illegality and give it a judicial fillip is what, in my opinion, constitutes the abuse of the Court’s process.
I have found no basis to disturb the findings of fact by the Lower Court, on the basis of which the appeal at the intermediate Court was dismissed. The concurrent findings of facts are that the Appellant, as the plaintiff, did not prove, on the preponderance of the evidence, his case brought on the Originating Summons as he did not discharge the burden of proving all he had asserted in order to be entitled to the favorable judgment of the Court. The Appellant has not shown any special circumstance, including any miscarriage of justice that would warrant this Court disturbing the concurrent findings of fact by the two Courts below. The senior counsel should know that that is the only circumstance this appeal would stand any chance of success. He seems to have preferred worrisomely, his loyalty to his client to his duty to this Court, as an officer in the inner Bar.
This appeal argued substantially on facts, appears to me to have been in the insubordination to the injunction in Section 233(3) of the Constitution, as amended, that appeals on facts, or mixed law and facts shall not lie as of right to this Court from the Court of Appeal. Yet, the Appellant has audaciously walked into this Court without leave in respect of most of the grounds of appeal.
There is no substance in this appeal, and it is accordingly dismissed in its entirety. The Appellant attempted, unsuccessfully, to “steal” nomination as the candidate of the APC for Alkaleri/Kirfi Federal Constituency, in Bauchi State. He was checkmated. The suit, culminating in this appeal is one of the ploys politicians’ use, clearly an abuse of Court’s process, to hoodwink the Courts to endorse the illegalities they perfect in the field. But it should be drummed to every ear that the Court, as the last hope of a common man, should not be conversely turned to be the last hope of the corrupt and desperate politicians seeking to wield power by all means.
I notice the cause of action in this matter arose in Alkaleri/Kirfi Federal Constituency of Bauchi State on 7th December, 2014. Like in DALHATU v. TURAKI (2003) 15 NWLR (Pt. 843) 310; (2003) 7 SC 1, in which the cause of action also arose in Jigawa State; the Appellant herein chose to come to Abuja FCT, as forum convenient, to litigate, in what appears to be “forum shopping”, the practice that was very seriously decried in DALHATU v. TURAKI (Supra).
Taking into consideration all the offensive antics of the Appellant leading to the commencement of the proceedings and till date, I should think an award of Two Million (N2,000.000.00) Naira as costs to each set of Respondents will substantially indemnify them for the costs thrown away.
Accordingly, I hereby order the Appellant to pay to each set of Respondents N2,000.000.00 as costs.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with my learned brother, Ejembi Eko in the judgment he just delivered and to show my support in the reasonings, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal Abuja Division or Court below or Lower Court, Coram: Emmanuel Akomaye Agim, Tani Yusuf Hassan and Mohammed Mustapha JJCA, delivered on 30th day of June, 2017 wherein the Court below dismissed the appeal of the appellant and upheld 1st respondent’s cross-appeal against some findings of the trial Court in favour of the appellant.
The background facts are well set out in the lead judgment and I shall not repeat them save for when the occasion warrants a reference to any part thereof.
On the 17th day of October, 2018 date of hearing, learned counsel for the appellant adopted the brief of argument of the appellant filed on 9/10/18 deemed filed on 17/10/18 and reply brief of 23/2/18 and deemed filed on 17/10/18 and reply brief of 23/2/18 and deemed filed on 17/10/18 to 3rd respondent’s brief.
The appellant crafted four issues for determination which are thus:-
1. Considering the evidence before the Court upon a proper evaluation of same and the applicable law, was the Court below right in its decision that it was the 1st respondent and not the appellant that won the 2nd respondent’s primary election and was rightly sponsored as 2nd respondent’s candidate for Alkaleri/Kirfi Federal Constituency. (Distilled from grounds 1, 5, 6, 7, 9, 11, 12 and 14 of the Notice of Appeal filed on 20th July, 2017).
2. Was the Court of Appeal not in a grave error when it, suo motu raised adverse questions/comments about appellant’s Exhibits M6 and M12 on the basis whereof the Court gave judgment against the appellant without affording parties a hearing in respect thereof and whether such error does not infringe on the appellant’s right to fair hearing and thus vitiates the judgment of the Court. (Distilled from grounds 2, 3 and 13).
3. Whether the Court of Appeal was not in a grave error when it first held that “The plaintiff’s case ought to have been dismissed without reference to the evidence led by the defendants” before proceeding to hold that “For whatever its worth, let me consider the evidence adduced by both sides…” thereby occasioning a miscarriage of justice. (Distilled from ground 4).
4. Whether the decision of the Court below setting aside the findings of the trial Court with regards to respondent’s Exhibits A and C and 3rd respondent’s Exhibit C is not perverse and erroneous upon a proper consideration and evaluation of the entire evidence on record including the said Exhibits. (Distilled from grounds 8 and 10 of the Notice of Appeal).
Learned counsel for the 1st respondent, J. J. Usman Esq., adopted the brief of argument filed on 27/11/17 and deemed filed on 17/10/18. He adopted the issues as crafted by the appellant.
Muritala Abdul-Rasheed Esq. of counsel for the 2nd respondent adopted the brief of argument filed on 25/11/17 and deemed filed on 17/10/18 and in it distilled a single issue for determination, viz:-
Whether lower Court was right when it dismissed the appellant’s suit on the ground that the 1st respondent was the candidate of the 2nd respondent for the 2015 general election.
I shall utilise the single simply drafted issue of the 2nd respondent for the determination of the appeal.
Learned counsel for the 3rd respondent, Usman O. Sule Esq., adopted the brief of argument filed on 17/10/18 and deemed filed the same day. He formulated a sole issue as follows:-
Whether the lower Court was right when it dismissed the appeal by the appellant having regard to its finding that the 1st respondent was valid candidate of the 2nd respondent.
Either of the single issues of 2nd or 3rd respondent is suitable in the determination of this appeal as each asks the same question as the other while effectively covering the determination of the appeal and so I shall use that crafted by the 2nd respondent.
Whether the lower Court was right when it dismissed the appellant’s suit on the ground that the 1st respondent was the candidate of the 2nd respondent for the 2015 general election.
Learned counsel for the appellant contended that the lower Court was wrong in rejecting Exhibit M6 for non-stamping and non-certification which are not required in the circumstance of this case.
That the lower Court erroneously rejected or failed to consider a document admissible and relevant to the case of a party, this Court is in as an eminent position as the lower Court to evaluate and give appropriate weight to the document as the justice of the case demands. That the fact that the lower Court raised those grounds suo motu without hearing the appellant vitiate the Court’s decision with regard to the document under consideration.
For the appellant, it was contended that Exhibit A being not properly executed the Courts below ought not to have made use of it as evidence as the document being unsigned was worthless and that was the base of the claim of 1st respondent. He cited OMEGA BANK NIGERIA PLC V OBC LIMITED (2005) 8 NWLR (Pt. 928) 547 at 576; OJO V ADEJOBI (1978) 3 SC 51.
That the effect of what was presented before the Court is that the claimant succeeded in satisfying the Court to prove the correctness of the allegations on which the claim is based and so the burden shifted to the respondents to dislodge those allegations and the proof put forward by the claimant and that the respondents failed to do. He cited BUKA V BUKA (2003) FWLR (Pt. 183) 38; Section 131 of the Evidence Act 2011; NIGERIA MARITIME SERVICES LTD V BELLO AFOLABI (1978) 2 SC 79 at 84.
The appellant stated further that the Court of Appeal wrongly excluded Exhibit M6, the result of the primary election on 7th December, 2014 in Alkali/Kirfi Federal Constituency which was the central issue to the appeal for which the intervention of this Court is called for. He cited FATUADE V ONWOAMANAM (1990) 3 SC (Pt. 2) 138; F.S.B INTERNATIONAL BANK LTD V IMANO NIGERIA LTD & ORS (2000) 11 NWLR (Pt. 679) 620.
The learned counsel for the appellant stated on that the grounds upon which the Court below refused to countenance and act on Exhibit M6 presented by the appellant was raised suo motu and without hearing from the parties especially the appellant reached a conclusion and decided upon it which breached the fair hearing rule. He referred to OBI V ONIAH & ORS (1989) 2 SC (Pt.1) 6; AYANBOYE V BALOGUN (1990) 9-10 SC 1; YAR’ADUA V YANDOMA (2015) 4 NWLR (Pt. 14) NWLR (Pt. 1448) 123 at 195 etc.
Learned counsel for the 1st respondent submitted that the power of a political party to sponsor a candidate for an election is provided for in Section 87 of the Electoral Act, 2010 and so the political party, 2nd respondent having conducted its election in accordance with its Constitution and Guidelines and has elected a candidate for its election, the lower Court cannot and would not impose a candidate on such a party. He cited EYIBOH V ABIA (2012) 16 NWLR (Pt. 1325) 51 at 86; PDP & ANOR V SYLVA & ORS (2012) 13 NWLR (Pt. 1316) 85 at 125.
That the document, Exhibit M6 which came from an unknown origin, unsigned was worthless. He cited IKEAKOR V ELOSIMBA (1999) 8 NWLR (Pt. 613) 164.
That it is not true that the Court below raised an issue suo motu and without calling on parties to address it utilised the point to reach its decision but rather what the Court below did was the application of principles of law not cited by counsel and this the Court could do. He relied on FINNIH V IMADE (1992) 1 NWLR (Pt. 219) 511 at 537; EFFIOM V C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106 at 133-134 etc
Learned counsel for 1st respondent further stated that by Exhibit D, the 3rd respondent who monitored the primary election of the 2nd respondent testified to the effect that it was 1st respondent that won the election.
That the concurrent findings and conclusion of the two Courts below were based on a sound foundation which should not be disturbed by this Court. He cited UMEANADU V A. G. ANAMBRA STATE (2008) 5 MJSC 151 at 173.
For the 2nd respondent, it was contended that the appeal as presented by the appellant is that of nomination and sponsorship and the Courts have held that it is a domestic affair of the political party over which the Courts have no jurisdiction. He cited SHINKAFI V YARI (2016) 7 NWLR (Pt. 1511) 340 at 373; TEJU INVESTMENT AND PROPERTY CO LTD V SUBAIR (2016) LPELR 40087 (CA); PDP & ANOR V SYLVA & ORS (2012) 13 NWLR (Pt. 1316) 85 at 145 etc.
The submission of learned counsel for the 3rd respondent are along the same line as those of 1st and 2nd respondents to the effect that only a political party can put up the candidate for election within the political party. He also contended that by joining the party the members have freely given their consent to be bound by the rules of the political party. He cited AGI V PDP (2017) 17 NWLR (Pt. 1595) 386 at 459-460.
What is at the base of the contest between the appellant on the one hand and the respondents on the other side is who between the appellant and the 1st respondent who won the primary election of the 2nd respondent and was so sponsored. The two Courts below held that it is the 1st respondent that won the said primary election of the 2nd respondent and that he was the one it duly sponsored.
The question therefore raised in answer in the determination of this appeal has in a long line of cases been well settled and the fundamental angle is that the nomination and sponsorship of a candidate for election into a political office is within the realm of a domestic affair of a political party over which the Court has no jurisdiction. It is with that in view that there is a reiteration that Section 87 (9) of the Electoral Act 2010 (as amended) which provides for the selection or nomination of a candidate by a political party has to be properly invoked for it to be of use to the litigant seeking its relieving features in the ventilation of his grievance over the nomination or selection by the relevant political party for which the person seeking redress can hang onto. This is because that statutory provision has some conditions which must be complied with before a valid invocation can be made. See AGI V PDP (2017) 17 NWLR (Pt. 1595) 386.
I shall for clarity quote the said Electoral Act, Section 87 (9) thereof thus:-
“(a) That there must first have been a primary for the selection or nomination of a candidate by a political party;
(b) The exercise for the primary must have been in respect of an election;
(c) The complainant must be an aspirant who ought to have taken part in his political party’s primaries and it must be shown that the political party designate did not comply with a provision of the Electoral Act or its political guidelines for selection done.”
In fact, the localisation of the nomination and sponsorship of a candidate by his political party within the confines of that party and not outside it and clearly outside the grasp of the Courts has been given judicial acknowledgement since the jurisdiction of the Court does not exist in respect of such matters or disputes arising therefrom challenging the authority of the political party. The situation is so clear that I shall cite a few authorities to showcase the position of things.
See SHINKAFI V YARI (2016) 7 NWLR (Pt. 1511) 340 at 373 paras E-F wherein the Supreme Court held as follows:-
“A community reading of Sections 85 and 87 of the Electoral Act 2010 (as amended) clearly show that they regulate the nomination of candidates for election through the internal mechanism of each political party. In other words, issue of nomination and sponsorship of candidates by political parties for election fall within the internal affairs of political parties and are therefore not justiciable…”
While per Onnoghen JSC (as he then was) stated as follows in Shinkafi v Yari (supra):
“It is settled law that the issue of nomination of a candidate by a political party for any election is within the exclusive preserve of the political parties and that the Courts have no to interfere therein as decided in a number of cases including ONUOHA V OKAFOR & ORS (1983) NSCC 494; DALHATU V TURAKI; (2003) 15 NWLR (Pt. 843) 310.”
At the risk of flogging a settled point is to state that the Court does not run the affairs of the political parties rather what the Court is empowered to do while it recognises the supreme position of the political party to determine who its candidate for election is, that party must do so without impunity but must effect that power within the tenets of its party constitution. I shall cite ONUOHA V OKAFOR (1983) NSCC 494 where the full picture was well captured and in that case Obaseki JSC stated thus:-
“The party like any other corporation operates within the guidelines, the powers and duties set out in the constitution. All its members are bound by its provisions and their rights and obligations created by their Constitution can be remedied as provided by the…. Failure to sponsor the appellant cannot be said to be in breach or ultra vires the powers of the National Progressive Party because the appellant won the nullified nomination or because the appellant paid N5,000 to contest the nomination. The National Progressive party being a Registered Political Party has the same capacity as a natural person to make its choice of candidate for sponsorship”. And His Lordship furthermore has cited in support Lord Denning as holding in Institution of mechanical Engineers v Cane (1961) A.C. 696 at 723 in expounding this principle thus and I quote him: “But when you are dealing with voluntary association of individuals the doctrine of ultra vires has no place.”
The import of the above abstract vis-a-vis this matter is 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 are matters of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-judiciable. See ONUOHA V OKAFOR and again Dalhatu v Turaki (supra).”
Those guidelines were followed by this Court in the case of AGI V PDP (2017) 17 NWLR (Pt.1595) 386 at 459-460 and expatiated on the said rules thus:-
“A Political party is like a club; a voluntary association. It has its rules, regulations, guidelines and constitution. Members join the party of their free will. By joining they have freely given their consent to be bound by the rules, regulations, guidelines and Constitution of the party. The rules of the party must be obeyed by all members of the party, as the party’s decision is final over its own affairs. When it comes to nomination of its candidate for election, the National Executive Committee of the party has the final say and whenever it approves or endorses a candidate to contest on the parties platform, he stands nominated and no other member can oppose that approval or nomination. The party is therefore supreme and has the final say or decision. (PDP v SYLVA (2012) 3 NWLR (Pt.1316) 85 referred to).”
Members of a political party would do well to understand and appreciate the finality of a political party’s decision over its domestic or internal affairs. The Court would only interfere where the party has violated its own rules. In the instant case, where the National Working Committee of the 1st respondent regards a person as a member of the party eligible to contest the primaries, no member of the party can complain against such a decision In the circumstance, the Federal High Court and the Court of Appeal were correct that the 3rd respondent is a member of the 1st Respondent, and that such an issue was within the domestic and internal affairs of the 1st respondent over which the Courts have no jurisdiction as which is not justiciable.”
Placing the principles on which the Court faced with the question such as has arisen in this matter at hand would then go into the facts related to find its way. In this instance, Exhibit M6 annexed to the Originating summons is what the appellant is relying on, while Exhibits A and B annexed to the 2nd respondent’s counter-affidavit in opposition to the originating summons which the appellant did not dispute. What the appellant contends is that by the result of 7th December, 2014 the National Executive of his party, the 2nd respondent found him to have committed an unlawful act by being in possession of election materials before the election and that notwithstanding he was the valid candidate that should be submitted by the 2nd respondent as he by that unlawful act had won the primary election. That posture is indeed unsustainable since a man will not be allowed by the Court to take benefit from an act or omission of his own making as he cannot as take advantage or reap a benefit from his own wrongs. See ABGAREH V MIMRA (2008) 2 NWLR (Pt.1071) 378 at 424
Also to be said is that the appellant having not contested the contents of Exhibits A and B brought forward by the 2nd respondent is taken to have admitted the facts therein stated and no further proof is required before being deemed established. I go along with my learned brother Ariwoola JSC in this regard in Okereke v. The State (2016) LPELR- 26059 page 19.
The follow up is that the appellant had conceded to the emergency of 1st respondent as candidate of the 2nd respondent for the Alkaleri/Kerfi Federal Constituency of Bauchi State and so the two Courts below held and since the appellant has shown no perversity or wrong application of the law, substantive or procedural upon which an interference by this Court can be justified, the Supreme Court has no option than to hold its peace. See HENRY ODEH V FEDERAL REPUBLIC OF NIGERIA (2008) LPELR – 2205 (SC).
In conclusion from the foregoing and the better reasoning in the lead judgment, this appeal lacks merit and I too dismiss it.
I abide by the consequential orders made.
OLUKAYODE ARIWOOLA, J.S.C.: I read before now in draft the lead judgment of my learned brother Ejembi Eko, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is unmeritorious and should be dismissed.
I too will dismiss the appeal.
I abide by the consequential orders in the said lead judgment including the order on costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the opportunity before now to read in draft the judgment of my learned brother, EJEMBI EKO JSC, just delivered. I agree entirely that this appeal is devoid of merit and should be dismissed.
The appellant has failed to advance any compelling reason to disturb the sound reasoning of the Court below. He cannot approach the Court with dirty hands, as rightly found by the Court below, and expect to obtain favourable reliefs. Besides, the 2nd respondent, through Exhibit A, which was not discredited, has clearly indicated who its candidate is.
I agree with my learned brother that the appeal fails in its entirety and it is hereby dismissed. The judgment of the lower Court is affirmed. I abide by the order of costs as made in the lead judgment.
AMIRU SANUSI, J.S.C.: I was opportune to read in draft form before now, the Judgment just rendered by my noble lord Ejembi Eko, JSC.
His lordship had ably addressed all the salient issues canvassed by the parties’ learned counsel in arriving at the conclusion that the appeal is unmeritorious and I am at one with such conclusion.
The bottom line is that the age-long and time honoured common law principle is that he who seeks equity must not come with dirty hands. The conduct of the plaintiff/appellant right from the outset as is clearly shown by the evidence adduced established that the appellant approached the Court with soiled or dirty hands. He therefore distanced himself from equity.
Having said so, I am in entire agreement with the reason and conclusion arrived at by my learned brother, that this appeal lacks merit and therefore must fail. It is accordingly dismissed by me. While affirming the Judgment of the lower Court, I also abide by the order on costs made in the lead Judgment.
Chief A.O. Ajana with him, Myson A. Nejo, ESq.,
Mimi Ayua, Esq.,
Simeon P. Sodo,Esq. and B.A. Folorunso, Esq. for the Appellant (Chief Olusola Oke,SAN settled the Brief) for Appellant
|J. J. Usman,Esq with him,Safiya Mohammed, Esq. for 1st the Respondent.
|Murtala Abdiu-Rasheed, Esq. with him, Peter Nwatu, Esq.,
Mary-Joy Samson, Esq.and Basil Kpenkpen,Esq. for the 2nd Respondent.
|Usman O. Sule,Esq. for the 3rd Respondent for Respondent|