IBRAHIM ABUBAKAR WAZIRI v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13205(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/46/2019
RATIO
APPEAL: ISSUES FOR DETERMINATION SHOULD EMERGE FROM GROUND OF APPEAL
As I earlier stated in this Judgment, the Appellant distilled sole issue for determination which is not tied to any of the five grounds of Appeal. InDIAMOND BANK V. MOCOK ONU (Nig. Ltd) 2019 LPELR 46440 (CA), it was held by this Court that it is settled that an issue or issues for determination must arise from the grounds of appeal relied upon. Where an issue formulated is not based on the ground of appeal filed; the legal effect is that it is on that account irrelevant. See UGO V OBIEKWE (1989) NWLR (pt.99) 566, OSINUPEBI V SAIBU (1982) 7 SC 104, WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 49) 284 and NSIRIM V AMADI (2016) 5 NWLR (pt 1504) 42.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
IBRAHIM ABUBAKAR WAZIRI – Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. HON. AISHATU DAHIRU AHMAD – Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Federal High Court sitting in Yola, Adamawa State delivered by A. M. Anka J., on 6th February, 2019 in Suit No. FHC/YL/CS/3/2019. The Respondents were sued by the Appellant at the Federal High Court, Yola Division over the Adamawa Central Senatorial District Primary Election held on 7th October, 2018. The Appellant filed the Suit at Federal High Court, Yola on 19th October, 2018. In the Originating Summons filed on 19th October, 2018 taken out by the Appellant against the Respondents, the Appellant sought for the following reliefs:-
1. A DECLARATION that the 1st Defendant?s Adamawa Central Senatorial District primary election purportedly held on the 7th day of October, 2018 in Adamawa State in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of the 1st Defendant, the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections and the Regulation for the Conduct
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of Political Party Primaries of the Independent National Electoral Commission is unconstitutional, unlawful, null and void.
2. A DECLARATION that it is ultra vires the 1st Defendant to hold and organize the Adamawa Central Senatorial District ? primary election held in Adamawa Central Senatorial District on the 7th day of October, 2018 without having given a prior 21-day notice of its primaries to the Independent National Electoral Commission (the 2nd Defendant) indicating that an indirect method of primary election of members of the Electoral College.
3. AN ORDER of this Honourable Court nullifying the 1st Defendant?s Adamawa Central Senatorial District ? primary election held on the 7th day of October, 2018 in the Adamawa Central Senatorial District same having been conducted in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended) and the relevant provisions of the Constitution of All Progressives Congress, 2014 (as amended), the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections and the Regulation for the
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Conduct of Political Party Primaries of the Independent National Electoral Commission.
4. AN ORDER restraining the 2nd Defendant from according any recognition to the outcome of the said Adamawa Central Senatorial District ? primary election of the 1st Defendant held on the 7th day of October, 2018 in the Adamawa Central Senatorial District same having been conducted in violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended), the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections and the Regulation for the Conduct of Political Party Primaries of the Independent National Electoral Commission.
5. AN ORDER of this Honourable Court restraining the Defendants from relying on or using the purported results of the 1st Defendant?s purported Adamawa Central Senatorial District ? primary election held on the 7th day of October, 2018 in the Adamawa Central Senatorial District for the purpose of nominating the 1st Defendant?s candidate for Adamawa Central Senatorial District in the forthcoming general elections
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scheduled to hold on the 16th day of February, 2019 or any other date as may be appointed by the 2nd Defendant.”
Primary election for the selection of candidate to represent the Adamawa Central Senatorial District was conducted by the 2nd Respondent on 7th October 2018. The Appellant contested the conduct of the primary election on the grounds that it was in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Electoral Act, 2010 (as amended), the relevant Constitution of the first defendant, the first defendant?s guidelines for the nomination of candidates for the 2019 General Elections and the regulation for the conduct of political party primaries of the Independent National Electoral Commission and therefore unconstitutional, null and void. That the said primary election was held without having given a prior 21 day notice of the primaries to the Independent National Electoral Commission. In view of the above, the Appellant commenced an action at the Court below to challenge the conduct of the primary election. After considering the affidavit evidence of parties and written addresses of learned
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counsel, the lower Court entered judgment against the Appellant and in favour of the 1st Respondent. The Appellant approach this Court challenging the decision of the lower Court by a Notice of Appeal filed on the 8th day of March, 2019 containing five grounds of appeal. The Appellant also filed his brief of argument on 29th March, 2019. I however discover that the sole issue counsel formulated for determination is not tied to any of the five grounds of Appeal.
The sole issue formulated for determination is:-
?Whether having regards to the facts presented before the lower Court and the law, the Court was right to have dismissed the appellant?s case.”
Counsel submitted that the learned trial Judge erred in law to have dismissed the case of the Appellant.
That the lower Court erred in law in holding that issues as regards the provisions of the Electoral Act and the Regulations of the 2nd Respondent cannot be an issue before the Court.
That the case of the Appellant before the Lower Court was brought amongst others legislations, pursuant to the Electoral Act 2010 (as amended). It is therefore safe to conclude that the
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provisions of the Electoral Act ought to orchestrate the questions for determination and the reliefs sought before the lower Court.
That the case of the Appellant, being a pre-election matter sought for the interpretation of the extant laws. He referred to the provisions of Section 87(9) Electoral Act, 2010. He said the spirit of the Section is specific as it is free and clear of any kind of ambiguity.
That the questions for determination are issues of law, and the appropriate avenue to seek redress as envisaged by the Electoral Act, 2010 (as amended) is the Court.
According to Counsel, Paragraph 15(c) and (f), Part I of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as well as Section 153 of the Electoral Act, 2010 (as amended) vest the 2nd Respondent with the power to make regulations that will govern political parties in Nigeria. Paragraph 15(c) and (f), Part I of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as altered) give the 2nd Defendant the power to monitor the organization and operation of political parties.monitor political campaigns and provide
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rules and regulations which shall govern the political parties. That Section 153 of the Electoral Act (as amended) gives INEC power to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Act.
That it was pursuant to its constitutionally imbued power that on the 27th day of October 2014, the 2nd Respondent, through its then Chairman, Professor Attahiru M. Jega, OFR, made the Regulation for the Conduct of Political Party Primaries. In this vein, paragraph 25 of the Regulations states the purpose of the regulations thus:
This regulation is made further to the Constitution of the Federal Republic of Nigeria and the Electoral Act 2010 (as amended) in order to ensure (sic) compliance with the legal process of selection of candidates and the conduct of free, fair and transparent primaries by all political parties.
That the effect of the foregoing is that the 2nd Respondent?s Regulations for the Conduct of Political Party Primaries is legally deemed to be a part of the Electoral Act, 2010 (as amended). The Regulations have the force of law. He referred to Yaki v. Bagudu [2015] 18 NWLR
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(Part 1491) 288 at 319, paragraph A, where Onnoghen, JSC (as he then was) noted thus:
By virtue of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law.?
That paragraphs 8 & 9 of the Regulations for the Conduct of Political Party Primaries provides thus:
8. A political party must submit by written communication to the Headquarters of the Commission and no later than 21 days to the date of its primaries, which of the two methods direct or indirect primaries, it intends to use in conducting its primaries.
9. All political parties must notify the Commission in writing no later than 21 days to the date of the primaries, the specific location and venue, date and time for the conduct of its nomination of candidates into various elective positions. All such notices shall be submitted to the Headquarters of the Commission and signed by the National Chairman and the National Secretary of the political party.
That at paragraphs 3.16, 3.19 and 3.20 of the Written Address in support of the Amended Originating Summons (pages 651-652 Volume 2 of the record of appeal), the Appellant
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argued the pre-eminence of 2nd Respondent?s Regulation for the Conduct of Political Party Primaries regarding the requirement of the notice to be given to the 2nd Respondent.
That the Appellant has explained in the affidavit in support of the Amended Originating Summons (as contained at pages 511-516, Volume 2 of the Record of Appeal) as to the wrong he suffered by the inactions of the 1st Respondent by not notifying the 2nd Respondent as provided by law. Hence the reliefs been sought before the trial Court.
Counsel further stated that the Appellant?s Exhibit IAW 4 (letter rescheduling the senate primary election) purports to be a notice of rescheduling the date of the primary election.
This he submitted violates paragraph 17(c) of the Regulations for the Conduct of Political Party Primaries which provides thus:
Rescheduling of any scheduled primary shall by a written communication to the Commission not later than seven (7) days to the new date, clearly stating the reasons for rescheduling, the new date and the venue.
That despite the very patent role these issues played in the Appellant?s Originating
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Summons, the lower Court failed, refused and/or neglected to consider its effect in the judgment.
According to Counsel, the pivotal question to be asked is, how then did the lower Court come to a conclusion while delivering its judgment that any argument therefore as regards the 21 days? notice is a non-starter and it is accordingly discountenanced (page 1056 Volume 2 of the Record of Appeal), whereas the Appellant deposed at paragraph 6 and 11 (pages 512 and page 513 of Volume 1 of the Record of Appeal) that the 1st Respondent refused to submit to the 2nd Respondent a written communication within 21 days to the date of the primaries the venue, location, time and date of the primary election whereas the 2nd Respondent did not deny same.
He argued that the fact is that the 1st Respondent gave no notice to the 2nd Respondent. Therefore, it was no surprise it failed to comply with paragraph 10 of the 2nd Respondent?s Regulations for the Conduct of Political Party Primaries which states the documents that would accompany the notice to the 2nd Respondent thus:
6. List of aspirants seeking nomination to contest the relevant elective
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positions;
7. List of members of the election committee of the party conducting the primaries;
8. Fifty copies of the guidelines or rules issued by the party for the conduct of the primaries, congresses or conventions; and
9. Ten copies of the Constitution of the party certified by the 2nd Defendant.
The Appellant averred at paragraph 11 of his Affidavit as follows:
I also know that the 1st Defendant did not notify the 2nd Defendant in writing not later than 21 days to the date of the primaries, the specific location and venue, date and time for the conduct of its nomination of candidates into the Senate Central District Constituency of Adamawa State senatorial position before holding same on 7th day of October, 2018 and neither did he notify me as an aspirant of same.
In applying the law to the foregoing facts, Counsel submitted that where a political party purports to conduct a primary election for the nomination of its candidate without complying with the provisions of the Electoral Act, the primary election and the consequent nomination are null and void and liable
