HON. MUSTAPHA BABA SHEHURI & ORS v. PROFESSOR BABAGANA U. ZULLUM & ORS
(2019)LCN/13434(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/J/174/2019
RATIO
PRE ELECTION MATTER: HOW TO DETERMINE WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION HAS IN A PRE ELECTION MATTER
There it was stated first by Kekere-Ekun, J.S.C. in lead judgment thus at p. 463 – 464:
In effect this being a pre-election matter, the jurisdiction of the Federal High Court to entertain it is not dependent on whether it falls within the exclusive jurisdiction conferred on it by Section 251 (1) of the 1999 Constitution but whether the claims falls within the purview of the provisions of the Electoral Act referred to earlier. See
relevant provision for the purpose of this appeal is Section 87(9) of the Electoral Act. Its scope is very narrow. For the plaintiff’s claim to fall within its purview, it must meet the following criteria:
a. the plaintiff must be an aspirant who participated in the primary election of his party;
b. the complaint must arise from non-compliance with the partys Constitution and guidelines and/or the provisions of the Electoral Act. (italics mine)PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. HON. MUSTAPHA BABA SHEHURI
2. ALHAJI KASSIM IMAM
3. ALHAJI MOHAMMED ABBA LIMAN
4. ALHAJI MOHAMMED UMARA KUMALIA
5. HON. ABBA JATO MOHAMMED Appellant(s)
AND
1. PROFESSOR BABAGANA U. ZULLUM
2. ALL PROGRESSSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal rather falls into an extremely narrow compass. It is from the judgment of the Federal High Court, Maiduguri Division as pronounced by Jude K. Dagat, J. on 03/04/2019 and simply asks for resolution of the question whether the pursuit of a political party?s appeal process by an aspirant dissatisfied with the conduct of his party?s primary election is cognizable as a pre-election matter by the Electoral Act 2010 and the 1999 Constitution of this country and so capable of delaying the running of the 14-day time-limit set by Section 285(9) of the 1999 Constitution of this Country for commencing pre-election matters.
The Background
Here I deem it necessary to start by quoting the very words of appellants at Paragraph 2.1 of their Brief of Argument. They said thus concerning the kernel of their case at the lower Court:
?The case of the Appellants before the lower tribunal is predicated on their dissatisfaction with the conduct of the APC (2nd Respondent) primaries for the Governorship of Borno State held on the 30th of September
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2018.?
Those are their very words.
In a bid to seek redress for their said ?dissatisfaction?, appellants, all erstwhile governorship aspirants of Borno State on 2nd Respondent?s platform, lodged an appeal to an ad-hoc Appeal Committee of their party, 2nd Respondent. Their Party?s Appeal Committee, according to them, resolved that its Governorship candidate in Borno State should emerge through a consensus. That, they contend, nullified the primary election of 30th September 2019 nevertheless the same 2nd Respondent forwarded the name of 1st respondent to 3rd Respondent (INEC) as its candidate for the general election.
?Dissatisfied with that action of their political party, appellants, on the 29th of October 2018, twenty-nine (29) days after the said primary election, filed in the Federal High Court the Originating summons from which this appeal stemmed and sought determination of the following three questions:
1. Whether having regards to the provisions of Section 6(6) (b) and 40 of the Constitution of the Federal Republic of Nigeria (as amended) , Section 87(3) and (4) of the Electoral Act (as Amended) and
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Article 21 (c) (iii) of the Constitution of the All Progressives Congress (as amended), members of the 2nd defendant including the plaintiffs, the 1st defendant and all organs of the 2nd defendant have a duty to obey, enforce and implement the decision of the Appeal Committee of the 2nd Defendant.
2. Whether having regards to Section 21(c) (iii) of the Constitution of the All Progressives Congress, any individual, body or organ of the party can disregard the decision of the Appeal Committee without recourse to the Constitution of the 2nd defendant.
3. Whether having regards to Section 21(c)(iii) of the Constitution of the All Progressives Congress, any decision of the Committee which has been upheld by the Committee can be implemented by any other member or organ of the 2nd defendant and can form the basis upon which the 1st and 3rd defendants will be permitted to act.
?They then sought the following reliefs in their summons should the court answer those questions in their favour:
1. A declaration that the decision of the 2nd defendant Appeal Committee sitting in Abuja and made on 17th October 2018, upon the Plaintiffs? Joint Appeal
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against the illegal conduct of the Borno State APC Gubernatorial Primaries which the Appeal Committee upheld the Plaintiffs? Prayers for the adoption of a Consensus candidate for the Borno State All Progressives Congress is binding on all persons, authorities, organs and bodies of the 2nd Defendant Party.
2. A declaration that by virtue of Article 21(c) (iii), the decision or action of the APC Gubernatorial Primaries Panel which was the subject of the Plaintiffs? appeal to Appeal Committee ceased to be binding as at October 2018 being the date on which the appeal was upheld by the Appeal Committee.
3. An order of perpetual injunction restraining the Defendants/Respondents by themselves, their agents, privies or any constitutional or party body, committee, panel, organ or otherwise howsoever from:
a. Relying on, announcing, ratifying, validating, utilizing or otherwise giving legal recognition or effect to, and taking any or further action on, any purported process or results of the All Progressives Congress (APC) party primaries for the Governorship candidacy in respect of the APC Borno State.
b. In any circumstance
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i. Selecting, collating, listing, or otherwise constituting, by any means whatsoever,
ii. Sending, presenting or otherwise transmitting any list or selection aforesaid.
iii. Receiving, utilizing, recognizing or otherwise acting on it in any way whatsoever,
any list, collation or selection of Gubernatorial Candidate for the APC in Borno State for any purposes whatsoever issued by the 1st to 4th Defendants.
They supported their originating summons with an affidavit, to which they annexed among others the Constitution of their party, the APC.
?All Respondents as defendants not only joined issues with them by filing counter-affidavits, which prompted the filing of Further and Better Affidavits by appellants, 1st and 2nd Respondents also raised a Preliminary Objection to the suit and sought its dismissal or striking out on the grounds that:
1. The suit is caught by the statute was barred by Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999, 4th Alteration No 21) Act 2017.
2. The appellants lacked locus standi to institute and maintain the action.
3. The suit constitutes an attack on the internal
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affairs of All Progressives Congress and thus the Court lacked jurisdiction to entertain.
After going through all the processes and the written addresses that were exchanged and adopted by parties in respect of both the originating summons and the preliminary objection, the trial judge, Dagat, J., in his judgment of 03/04/2019 upheld the preliminary objection of 1st and 2nd Respondents on the grounds:
1. That the issue of a consensus to be adopted by 2nd Respondent (APC) is its internal affair and since it adopted 1st respondent in line with its Appeal Committee?s recommendation, appellants lacked cause of action to complain over that decision, and
2. That the action was in any case caught by Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999, 4th Alteration No 21) Act 2017 having been filed only on 29/10/2018, well outside 14 days of the conduct of the 30th September 2018 as required by the said Constitutional provision.
His Lordship in conclusion summarized his judgment thus:
?On the whole, the present suit relates to the internal affairs of the APC which makes the suit not justiciable in a Court
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of law. The suit is also statute barred. In the circumstances of the case, the suit is hereby dismissed.?
Appellants being of the strong opinion that their suit was not caught by Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999, nor lack cause of action have brought this appeal on eight grounds.
Briefs of argument were exchanged by all parties. In their brief, appellants distilled the following three issues for determination:
1. Whether the trial Court was right when it held that their action was statute barred and went ahead to dismiss it without considering its merits.
2. Whether they truly lacked cause of action and their suit non-justiciable.
3. Whether the Appeal Committee of the 2nd Respondent (APC) by its recommendation for a consensus did not by implication nullify the primary election of 30th September 2018 and whether same recommendation is meant to be obeyed by all members of the party with or without a complaint from the chairman or Mr. President or not.
Third Respondent, INEC, on its part identified a single issue for determination as follows:
Whether the trial Court Federal High
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Court was right when it held that the appellants? case is statute barred without inquiring into the merits of the case.
First and second Respondents? Joint Brief of Argument was objected to by Chief Onoja, S.A.N., for appellants on the grounds that at the time it was filed, 2nd Respondent was already outside the time allotted him by the court. That prompted a flurry of oral applications from Mr. Ali to salvage it. Learned silk started by asking us, orally, for extension of time on behalf of 2nd Respondent to file the said brief of argument out of time. In the alternative, he sought to delete 2nd Respondent?s name from the brief. As a third alternative, he even appealed to us to allow him argue their case orally. All these were met by stiff opposition from Chief Onoja on the grounds that 1st and 2nd Respondents having already adopted their brief, same cannot be amended nor time extended to file it let alone by just oral application. He also argued that there was no provision in our rules for oral argument of appeals without first filing briefs. That is even as I must not also fail to point out that at the time Chief Onoja was also making
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all these submissions, he had also already responded to the said ?objectionable? Brief of Argument of 1st and 2nd Respondents on its merits by filing a copious Reply brief and even adopted it before us, a conduct which also strongly suggests that he had waived the said non-compliance concerning time of filing the said brief of 1st and 2nd Respondents, an approach appellants are ordinarily at liberty to adopt. See the cases of C.C.B. (Nig.) Plc v. A-G., Anambra State [1992] 8 NWLR (pt. 261) 528 at 547 and Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 at page 545 where the apex Court emphatically confirmed this. In Atanda v. Ajani supra (at p. 545) it was even further said (Nnaemeka-Agu, J.S.C) that the times fixed by the rules of court for filing of processes are meant for the convenience of parties so they are at liberty to waive them as appellants did in this case. I am of the view that appellants having not only responded to the said objectionable brief of 1st and 2nd Respondents with a Reply Brief but also adopted same in Court, have waived 2nd Respondent?s non-compliance (1st respondent was within time) and cannot be heard to object to its
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brief: see C.C.B. (Nig.) Plc v. A-G., Anambra State [1992] 8 NWLR (pt. 261) 528 at 547 (S.C.) and Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 at page 545 (S.C). Appellants cannot approbate and reprobate.
In their said brief of argument, 1st and 2nd Respondents formulated the following three issues for determination:
1. Whether the trial Court was not right in its decision that appellants? case was statute barred and disclosed no reasonable cause of action.
2. Whether the trial Court was not correct in not considering the case on the merit after having found out that the case was statute barred and whether this is not a proper case for the invocation of Section 15 of the Court of Appeal Act to grant any relief in appellants? favour.
3. Whether the alleged Appeals Committee Report has obliterated the decision of the 2nd Respondent?s primaries of 30th September 2018 and whether consensus was has not been implemented in the light of the facts presented by the appellants.
?I am afraid 1st and 2nd respondents simply proliferated issues, for their first two issues are in truth one and can be conveniently collapsed into a
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single issue as follows:
Whether the trial Court was not right in its decision that appellants? case was statute barred and disclosed no reasonable cause of action and if this is a proper case for the invocation of Section 15 of the Court of Appeal Act.
?Their issue 3, which now becomes issue 2, can then be considered separately, if need be.
Arguments of parties
On issue 1 of appellants, Chief Onoja, S.A.N., submitted that appellants? grouse was against the non-implementation of the decision of the Appeal committee of their party APC (2nd Respondent) so their 14 days under S. 285(9) of the Constitution to commence action only starts running from 17/10/2018 when 2nd Respondent made it clear that it would not implement the decision of its own Appeal Committee. Second Respondent, counsel submitted, appeared to follow Article 21(c)(iii) of its Constitution when it set up its Appeals Committee to look into the complaint of appellants but surprisingly let down its own Constitution and ditched its Appeal Committee?s recommendations. That, according to counsel, crystallized into appellant?s cause of action which, he added, is
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the very essence of the provisions of Section 87(9) of the Electoral Act 2010 permitting pre-election actions. That being their case and their cause of action having only crystallized or happened on 17/10/2018, according to him, they were in order when they filed their action on 29/10/2018, since 17/20/2018 to 29/10/2010 is within the 14 days prescribed by Section 285(9) of the 1999 Constitution for filing of pre-election matters.
Counsel concluded by submitting that the lower court was equally wrong by dismissing appellants? action upon holding that it lacked jurisdiction when the proper order in that case is striking out and not dismissal. He cited the case of Atago v. Nwuche (2012) 1 NWLR (PT 1545) 147 @ 169 for this proposition.
Learned silk urged us to resolve this issue in favour of appellants.
On issue 2, counsel argued that contrary to the findings of the lower Court, appellants? action was neither non-justiciabe nor lacking cause of action. Counsel again referenced Article 21(c) (iii) of 2nd Respondent?s Constitution to submit that the right to appeal the outcome of a primary election by an aggrieved aspirant is
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conferred by 2nd Respondent?s Constitution and same is binding and enforceable on all its members. He then invoked the Latin maxim of ubi jus ibi remedium (wherever there is a wrong there is remedy) to submit further that section 87(9) of the Electoral Act 2010 affords appellants a remedy. Learned silk in appellants? Reply brief copiously cited dicta from my lead judgment in Mohammed Abdullahi Barau v. Hon Abbas Adamu Wokdung (2018) LPELR-46168 (CA) to submit that 1st and 2nd respondents missed the point when they argued in their Brief of Argument (the same Brief he later contended was incompetent) that the decision of Appeal Committee is outside the purview of Section 87(9) of the Electoral Act and renders it non-justiciable. On the contrary and as evidenced by the decision in Mohammed Abdullahi Barau v. Hon Abbas Adamu Wokdung (supra), counsel submitted, the non-implementation of the decision of the decision of the Appeal Committee on the conduct of the primary election, will, in the event of resort to court action, strengthen the rights of the aggrieved aspirant or person under Section 87(9) of the Electoral Act 2010 (as amended). Counsel again
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ended asking us to also resolve this issue in favour of appellants.
On appellants? third and last issue, learned silk submitted that the provisions of section 21 (c) (iii) of 2nd Respondent?s Constitution have made the decision of its Appeal committee automatically binding. He submitted that even though in the primary of the 30th September 2018 a ?winner? emerged in the person of 1st respondent it was not acceptable to appellants, for which they appealed to 2nd Respondent?s Appeal Committee which took a decision that a consensus should be organized in the selection of its Gubernatorial candidate. The implication of that decision, counsel submitted, logically set aside the primary election of 30th October 2018, with or without an express statement or pronouncement of the party to that effect. He said the lower Court trivialized what he called the ?vital issue? of the effect of the decision of 2nd Respondent?s Appeal Committee when it held that the submission of the name of 1st respondent to INEC by 2nd Respondent?s (APC) was in order in so far as the Chairman of APC and Mr. President did not complain so
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appellants lacked cause of action. The decision to make on the Recommendation was not that of Mr. President or Chairman of APC but rather of the aspirants including appellants as well as the members of APC in Borno state, that Mr. President and Chairman of APC were only mandated to spearhead the consensus exercise, he argued. The Appeal Committee?s Recommendation was not for fancy or mere fun but has strong backing in Article 21(c) (iii) of 2nd Respondent?s Constitution so it must be seen to have been complied with, counsel submitted. Counsel finally urged us to resolve this issue against appellant and invoke the general powers of rehearing vested on this court by Section 15 of the Court of Appeal Act 2004 to hear the case on its merits.
In the Reply brief of Appellants which Chief Onoja filed and adopted in Court in response to 1st and 2nd Respondents? said ?objectionable? brief, learned silk insisted that we can exercise such powers under Section 15 of the Court of Appeal Act, as against the arguments of 1st and Respondents? counsel to the contrary.
The summary of the response of Mr. Yusuf Ali, S.A.N., for 1st
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and 2nd Respondents and Mr. Tatama for 3rd respondent (INEC) is that having regard to the provisions of Section 87(9) of the Electoral Act and the definition of pre-election matter in Section 285(14) of the 1999 Constitution, appellants? resort to their political party?s Appeal Committee after primary election is not a pre-election matter but internal affair of their party so their action, which according to counsel was against the 30th September 2018 Governorship primaries of their party, was caught and barred by Section 285(9) of the 1999 Constitution when they waited until 29th of October 2018 to file it and for that reason the lower Court was correct in its decision declining jurisdiction to entertain it and finding that they lacked reasonable cause of action. Mr. Ali added that in the circumstances of this case and given particularly that the provisions of Section 285(10) of the 1999 Constitution of this country sets a time limit of 180 days for the trial Court to dispose of hearing appellants? complaint and has since that time has lapsed, the powers of rehearing vested on this Court by section 15 of the Court of Appeal Act cannot be
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exercised now since this Court, by those powers, can only do what the lower Court could have done; that since the lower Court has lost its 180 days time limit and so could not have even heard the case let alone grant relief to appellants if it was before it, this court cannot also grant them any such relief notwithstanding the fact that it is within its Constitutional 60 days? time to hear the appeal. That is even as learned silk also submitted that appellants did not prove their case even on the merits as the evidence they presented, according to counsel, was either lacking in weight or outright inadmissible.
On appellants? complaint that 2nd respondent failed to implement its Appeal Committee?s decision that it select its Borno State Governorship candidate by Consensus, Mr. Ali submitted that assuming but without conceding that Consensus was even recommended appellants were very even inconsistent in stating their case as regards who was directed to implement the Recommendation for Consensus. At one breath, he submitted, they argued that it was directed to Mr. President yet in another they argued that it was they the aspirants that
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were expected to implement it among themselves by choosing one of them. Learned counsel also pointed out that Exhibit 9 heavily relied on by appellants for the said Consensus did not even prescribe any particular way for its conduct. Counsel concluded by urging us to uphold the decision of the trial judge.
?In his Reply Brief to the arguments of Mr. Tatama for 3rd Respondent, Chief Onoja referenced the same Section 285(14) of the 1999 Constitution for definition of ?pre-election matter? to submit that appellants? action falls squarely within that definition and puts to rest any contention that their action was caught by Section 285(9) of the same 1999 Constitution. The pertinent questions to ask, he submitted, were whether appellants are aspirants of 2nd Respondent, whether the same APC has rules and guidelines touching on appeals from primaries to the Appeal Committee and whether the decision of its Appeal committee was followed in this instance. He submitted that cause of action relating to the issue of nomination or sponsorship of a candidate of a candidate of a political party need not necessarily be the date on which the primary
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relating to such nomination or complaint was held, that what is to be considered is the exact complaint of the plaintiff and the ?action, event or decision? specifically complained about. Learned counsel referred us to three unreported decisions, two of this court – A.P.C. & Anor. v. Hon John Halims Agoda & Anor (Unreported) Appeal No. CA/B/124/2019, Benin Division, delivered on 1/4/2019, and Cyril v. A.P.C. & Ors (Unreported) Appeal No CA/K/40/19 of Benin Division, – as well as an Unreported judgment of the Supreme Court in A.P.C. & Anor v. Engr. Suleiman Aliyu Lere & Anor (Unreported) SC.222.2019 delivered on 10th May 2019, even as he did not furnish us with any of those judgments. Counsel repeated his argument that notwithstanding 2nd respondent?s primary election of 30/09/2018, appellants? cause of action accrued on 17/10/2018 when 2nd Respondent refused to implement the decision of its Appeal Committee.
Resolution of issue(s)
I find it of utmost importance to start by correcting the impression created by appellants in the questions they set out for determination in their originating summons as well as
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their arguments both at the lower court and before us here to the effect that 2nd Respondent?s Constitution provides for Appeal against primary election in its Article 21, particularly Paragraph (c)(iii). Appellants, I am of the very clear opinion, misconstrued that provision; for the entire Article 21 of 2nd Respondent?s Constitution (it covers pages 57 to 62 of the Records) aptly titled ?DISCIPLINE OF PARTY MEMBERS? only relates to discipline of erring party members for offences that are well defined there and the right of appeal of such persons to appeal to higher organs of the party. Article 21 in fact starts with a subtitle ?Power to Discipline? and goes on to say:
Subject to the provisions of this Article and the right to fair hearing, the PARTY shall have the power to discipline Party Members. The Power shall be exercised on behalf of the Party by the respective Executive Committee of the Party at all levels.
?Paragraph A of Article 21 subtitled Offences then goes on to list Eleven (11) specific offences for which the party can discipline its members, while Paragraph B titled Disciplinary Procedure sets out
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the procedure for such disciplinary action. It is this procedure and imposition of punishment that Paragraph C titled APPEALS provides for right of appeal by such aggrieved offenders, not aspirants in primary elections, to appeal to higher organs of the party for redress. It is also such appeal from offenders against disciplinary measures imposed on them by the lower organs of the party that Paragraph (c) (iii) of Article 21, which appellants specifically sought interpretation in their Originating Summons, also says ?Where a decision or action taken by an Organ of the Party is appealed against, the decision or action shall remain in force and binding until the appeal or appeals had been determined. The decision or action shall cease to be binding if the appellate body upholds the appeal.?
?It is not appellants? case that they were offenders or were accused by their Party of having been in breach of its Constitution for which disciplinary proceedings was commenced hence they appealed to a higher organ of the party, for that is the only way they can find succour in the provisions of the said Article 21(c)(iii) around which they built their
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case. Article 21(c)(iii), I repeat, is completely inapplicable to their case.
And that consequentially raises the question whether their originating summons is not even liable to be dismissed since all they sought interpretation from the Court in the three questions they posed in it is the applicability or otherwise of the said Article 21(c)(iii) of 2nd Respondent?s Constitution.
Assuming but without conceding that they were in order and their originating summons had any life, let me now proceed to take on their arguments even as I keep at the back of my mind this grievous flaw in their case.
Now, as pointed out earlier, this appeal revolves around whether the pursuit of a political party?s ad-hoc internal dispute resolution mechanism, in this case an appeal, by an aspirant who is dissatisfied with the conduct of his party?s primary election is cognizable as a pre-election matter/cause of action by the Electoral Act 2010 and the 1999 Constitution of this country as amended and so capable of delaying the running of the 14-day time-limit set by Section 285(9) of the 1999 Constitution of this Country for filing pre-election
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actions. The said provision reads:
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
The issue is: what does the Constitution mean by the ?event, decision or action? the happening of which is supposed be the deciding factor for computation of the 14-days time limit for filing pre-election matter. In the 24th May 2019 Unreported decision of this court in CA/J/130/2019: Saidu ABDU ISAH v. BELLO HARUNA & 2 ORS, I held (with the concurrence of my learned brothers Mshelia and Onyemenam, JJ.C.A) that this subsection of Section 285 of the Constitution, unlike its brother subsections (5), (6), (7), (9), (10) (11), and (12) of the same Section 285, left its cut-off date fairly open with its provision that the 14 days time for filing pre-election matters shall be ?from the date of the occurrence of the event, decision or action complained of in the suit.? In that case the issue was when time under Section 285(9) of the Constitution starts to run for an aspirant who
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was shown without doubt to have won his party?s (APC) primary election, was even so declared and issued a result to that effect yet found later that his political party had rather forwarded to INEC as its candidate the name of his co-aspirant who lost to him at the primaries. The trial High Court and this court had no difficulty holding in those circumstances that the ?event, decision of action complained of? by him, which was his party?s failure to forward his name, for purposes of computation of time under S. 285(9) of the Constitution, is the time he became aware of the surreptitious decision of his party to forward the name of a person he beat hands down in the primaries and not the date of the primary election. The complaint in that case was clearly covered by Section 87(4)(c) of the Electoral Act which makes it compulsory for political parties to forward to INEC as their candidate the name of the aspirant who gets the highest votes in its primary election.
?The instant case stretches the argument a bit further and asks whether the same Section 285(9) of the 1999 Constitution is so open-ended that just any complaint, including
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the pursuit by an aspirant of an ad-hoc appeal process set up by his Political Party after a primary election suffices as the ?event, decision or action? for a pre-election challenge.
The answer to that question, I agree with counsel to all the parties, lies squarely in the provisions of Section 87(9) of the Electoral Act and Section 285(14)(a) of the 1999 Constitution. Incidentally, the two provisions are similarly-worded, the only difference between them is that the new Section 285(9) of the 1999 Constitution has widened the scope of cognizable pre-electoral matters a bit further to also include any complaint by an aspirant of non-compliance with any Act of the National Assembly (and not just the Electoral Act 2010) regulating the selection or nomination of a candidate by a political party. For ease of reference, I here reproduce the two provisions:
Section 87(9) of the Electoral Act 2010:
?Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination
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of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or FCT, for redress.
Section 285(14) (a) of the 1999 Constitution:
For the purposes of this section, ?pre-election means any suit by –
(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party has not been complied with by a political party in respect of the selection or nomination of candidates for election.
By these provisions, the only complaints an aspirant in a party primary can take to court as a pre-election matter are complaints of non-compliance with:
1. the Provisions of the Electoral Act 2010,
2. the guidelines of a political party,
3. any Act of the National Assembly,
regulating the conduct of primaries of political parties in the selection or nomination of a candidate of a political party for election, and not anything else. That much is apparent from a calm reading of the two provisions. In any event there is high
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authority in support of it in the decision of the apex court in Oduah v. Okadigbo (2019) 3 NWLR (PT 1660) 433. There it was stated first by Kekere-Ekun, J.S.C. in lead judgment thus at p. 463 – 464:
?In effect this being a pre-election matter, the jurisdiction of the Federal High Court to entertain it is not dependent on whether it falls within the exclusive jurisdiction conferred on it by Section 251 (1) of the 1999 Constitution but whether the claims falls within the purview of the provisions of the Electoral Act referred to earlier. See
The relevant provision for the purpose of this appeal is Section 87(9) of the Electoral Act. Its scope is very narrow. For the plaintiff?s claim to fall within its purview, it must meet the following criteria:
a. the plaintiff must be an aspirant who participated in the primary election of his party;
b. the complaint must arise from non-compliance with the party?s Constitution and guidelines and/or the provisions of the Electoral Act.? (italics mine)
All Her Lordship?s Learned brothers made similar pronouncements, with Eko, J.S.C., further
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concretizing it in his contribution at p. 422 E-F thus:
?A claimant who brings his suit under section 87(9) of the Electoral Act must show –
a. That he was an aspirant contesting to be nominated as a candidate of a Political Party;
b. His complaint must be limited to ?any of the provisions of (the) Act and the guidelines of (his) Political Party has not been complied with in the selection or nomination of a candidate of (his) Political Party. (italics mine)
?As pointed earlier, the only necessary addition to these dicta is the widening of the scope of Section 87(9) of the Electoral Act pre-electoral matters by Section 285(14)(a) of the 1999 Constitution (which provision only came into effect on 07/06/2018 after the decision in Oduah v. Okadigbo) to include complaints of non-compliance by a political party with any Act of the National Assembly, and not just the Electoral Act, regulating the conduct of primaries of political parties.
Establishment of Appeals Committee by a political party is not part of the provisions of the Electoral Act 2010 or of any Act of the National Assembly. It is also inconceivable that such purely
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intra-party dispute resolution mechanism will be part of a political party?s ?guidelines? for the conduct of a primary election, certainly not that of 2nd Respondent despite appellants? attempts to force it in under Article 21 of their Party?s Constitution. In any case, if it is, it is for the person invoking the jurisdiction of the court on that basis (in this case appellants) to prove it. Here appellants in paragraph 9 of the affidavit in support of their summons seemed to have set out the Guidelines for their party?s 30th September 2018 primary election when 3rd Respondent, Mohammed Abba Liman, in the affidavit supporting their summons swore on their behalf thus:
9. After we purchased the nomination forms, we were screened and found to be fit for the offices aspired for and we were then informed that the State Council of the party had opted for the indirect mode of conducting the primary election. The effect of this is that:
(a) Delegates would be generated from each ward as required by the Constitution of the 2nd defendant.
(b) All the aspirants will have unfettered and equal access to canvass for their
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support and vote at the primary election.
(c) All aspirants will be privy to the process and procedure from the inception to the final declaration of the party?s candidate during the General Election
(d) The process will be a free fair and transparent process free from rancor and manipulation.
It is these Guidelines said to have been breached by 1st and 2nd respondent in the conduct of the primary election of 30th September 2018 third appellant went further to say in paragraph 11 of his same affidavit that:
11. Unfortunately, we discovered that the transparent process we envisaged and prepared for had been manipulated by some individuals in the State branch of the All Progressive Congress…
By the admission of appellants, all these alleged breaches/non-compliances happened before or on the very 30th of September 2018 conduct of 2nd Respondents primary election. That much, appellants in Paragraph 6.2 of the Brief of Argument also admitted when they stated there that in the primary of the 30th September 2018 a winner emerged in the person of 1st respondent? only that it was not acceptable
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to them. That means their 14 days under Section 285(9) of the Constitution started running from that 30/9/2018, not 17/10/2018 when their party?s Appeal Committee allegedly handed down its decision, so their action was already barred when they filed it on 29/10/2018.
Yes, there is no doubt that the decision of a political party?s Appeal Committee in favour of an aggrieved aspirant would undoubtedly strengthen his action or complaint of non-compliance in court as shown in Barau v. Wokdung supra by appellants? counsel, but that situation will only arise where such Committee concludes its deliberations within the 14 days window and the aspirant also institutes his action within that time, not when his right of action has lapsed and is barred and all he is left with is an impotent, unenforceable cause of action. That is the difference between this case and the cases of Mohammed Abdullahi Barau v. Hon Abbas Adamu Wokdung (2018) LPELR-46168 (CA) and Mato v. Hember (2018) 5 NWLR (PT 1616) 258. In both of those cases there was right of action as there was no Section 285(9) of the Constitution (as amended by the 4th Alteration Act) and its 14-day
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time limit requirement for institution of pre-election matters.
And by the way, if an aspirant?s resort to his political party?s ad-hoc appeal process is also capable of delaying the running of the 14 days time to file action under Section 285(9) of the 1999 Constitution, would it not mean that even if it takes months or even years for the Political Party concerned to reach a decision the 14-days time limit of S. 285(9) will be kept in abeyance? If that be the case, will it not be at cross purposes with the obvious noble intention of Section 285 and its provisions including subsection (9) to ensure that all election related matters be filed and disposed off with dispatch so that those elected can settle down without distraction to face the serious business of governance, as was stated by the apex court in Hassan v. Aliyu (2010) ALL FWLR (PT 539) 1007
Again, if the contention of appellants is correct there is also the very high probability that the provisions of Sections 285(9) of the Constitution and its 14-days? time limit for filing pre-election matters will apply differently to aspirants of different political parties
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assuming, for instance, that Party A were to have an Appeal process and even a very long one for that matter while Party B does not even have at all or has just a very short one. Could such possible disparate application of the same provision of the Constitution have been intended by its makers
Clearly, the argument of appellants is unsupportable both in law and in logic. In fact Mr. Tatama for 3rd Respondent in my opinion hit the nail on the head when he submitted in Paragraphs 4.09 and 5.00 of 3rd Respondent?s brief that:
from the position of the law that covers pre-election matters which obviously the appeal at hand is one of them shows clearly that the alleged non-implementation of decision of an Appeal Committee cannot by whatever imagination fall under cause of action covered by any law as to confer on it a status that has the force of law.
The appellants perceived cause of action tagged ?non-implementation of the recommendation of the Appeal Committee? is not a cause of action recognized under the law and therefore of no moment. ? the only event recognized under the law reproduced
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hereinbefore, to wit: S. 285(14) of the Constitution is only the party primaries which is the main event that triggered this took place on the 30th day of September 2018.
?The 3rd Respondent therefore humbly submits with respect that any cause of action that can give a party right of action must be founded in law but not at large and therefore parties cannot choose anything that suits their interest and tag it cause of action. Any actionable cause by a party under pre-election must be in line with the law and it is only events recognizable by the law that a party may have the locus to challenge. The heavy weather made by the appellants therefore as regards the relevant date of the accrual of cause of action in this appeal cannot be supported having regards to the law and therefore of no moment…”
?I am in complete agreement. Pursuit of a party?s internal appeal process per se, I reconfirm, is not a complaint or cause of action known to Section 87(9) of the Electoral Act 2010 or S. 285(14) of the 1999 Constitution of this country; such is therefore incapable of delaying the running of the 14-days? time limit for filing
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pre-election matters under Section 285(9) of the same Constitution.
In the event, I hereby uphold the decision of the lower Court on the two grounds – lack of cause and limitation of action ? on which it dismissed the action of appellants and hereby dismiss this appeal.
There shall be costs of this appeal which I assess at ?500,000.000 (Five Hundred Thousand Naira) in favour of each Respondent.
UCHECHUKWU ONYEMENAM, J.C.A.: My learned brother BOLOUKUROMO MOSES UGO, JCA, afforded me the opportunity to read in advance the judgment just delivered. I agree with the conclusion reached thereat in dismissing the appeal. I adopt same as mine.
I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.:I was privileged to read before of my learned brother BOLOUKUROMO MOSES UGO, JCA just delivered.
I agree entirely with the conclusion dismissing the Appeal and I abide by the consequential therein including that for cost.
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Appearances:
Chief Ogwu James Onoja, SAN with him, Moses Ebute, Esq. and F.O. Shuaibu, Esq.For Appellant(s)
Yusuf Ali, SAN with him, N.O. Adelodun, SAN, K. K. Eleja, SA.N., R. T Bamigboye, Esq. and A.O. Saidu, Esq. for 1st & 2nd Respondents.
Usman Tatama, Esq. for 3rd Respondent
For Respondent(s)
Appearances
Chief Ogwu James Onoja, SAN with him, Moses Ebute, Esq. and F.O. Shuaibu, Esq.For Appellant
AND
Yusuf Ali, SAN with him, N.O. Adelodun, SAN, K. K. Eleja, SA.N., R. T Bamigboye, Esq. and A.O. Saidu, Esq. for 1st & 2nd Respondents.
Usman Tatama, Esq. for 3rd RespondentFor Respondent
