INEC v. OLALEKAN & ORS
(2022)LCN/16866(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 24, 2022
CA/ABJ/CV/926/2021
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION APPELANT(S)
And
1. SAMUEL OLALEKAN 2. MARY NWANZE 3. JUDE DANIEL ODI 4. OLATUNJI ATOEBI 5. OLOTU JAMES 6. ALFRED FREDERICK PANDI 7. GEORGE OPARA 8. CONFIDENCE OGA (Suing For Themselves And On Behalf Of All Members Of A Political Association Known As Africa Youth Democratic Party (AYDP) Lodged With The Independent National Electoral Commission As An Intending Political Party Vide Letter Dated 30/12/2020) RESPONDENT(S)
RATIO
THE POSITION OF THE APPEAL COURT ON WHAT IS REQUIRED OF AN APPELLANT
In law, all that is required of an Appellant by the Rules of this Court, in articulating his grounds of appeal, is to give sufficient notice and information as to the precise nature of his complaint to the Respondent. Thus, once a ground of appeal satisfies that purpose it is competent, valid and cannot be described as argumentative and therefore, any ground of appeal that satisfies that purpose should not be struck out. See Awusa V. Nigerian Army (2018) LPELR – 44377 (SC) AT pp. 36 – 37, where the Supreme Court had stated inter alia thus:
“The law is that once the error complained of is identified and properly oriented in the ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice “
See also Best (Nig.) Ltd. V. BH (Nig. Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC.
Thus, in law once sufficient particulars can be gleaned from the grounds of appeal, it is not every failure to state fastidious details as prescribed by the rules of Court that would render such an otherwise competent ground incompetent. Therefore, once the other party, as in the instant case the Respondents, as well as this Court are not left in any doubt as to the particulars on which the grounds of appeal are founded, that would suffice. See Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 AT p. 257. See also Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253; Abe V. Unilorin (2013) 16 NWLR (Pt 1379) 183; Dyeris V. Mobil Oil (Nig.) Plc (2010) 1 NWLR (Pt. 1175) 309 AT p. 329; Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON THE EXPRESSION “FOR THEMSELVES AND ON BEHALF”
Indeed, the expression ‘for themselves and on behalf’ is a mere description of the dual capacities in which the Respondents sued, which this Court can readily allow to be amended by the Appellant to include such description. This is because in law, where the evidence in an action reveal that the action was prosecuted by a party in a representative capacity, even though not formally reflected in the title of the action, the Court can properly enter judgment for or against such party in that capacity without any amendment to reflect the capacity. In Afolabi & Ors V. Adekunle & Anor (1983) LPELR – 194 (SC) AT p. 23, the Supreme Court had stated inter alia thus:
“This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained… It would be otherwise if the case is not made out in a representative capacity.” PER GEORGEWILL, J.C.A.
THE JURISIDICTION TO HEAR AND DETERMINE CASES RELATING TO THE INTERPRETATION OF THE COSNTITUTION AS IT AFFECTS THE FEDERAL GOVERNMENT OR ANY OF ITS AGENCIES
Now, in law the jurisdiction to hear and determine any cause of matter, no matter the guise under which it is commenced, but touches on an alleged breach or matters in respect of or relating to the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies as well as in respect of any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies is conferred exclusively on the Federal High Court. So, also any matter or alleged breach that arises from any transaction or subject matter which falls within the exclusive jurisdiction of the Federal High Court as provided by Section 251(1) of the Constitution of Nigeria 1999 (as amended) is conferred on the Federal High Court to the exclusion of all other Courts in Nigeria, including the Court below, being the Federal Capital Territory High Court. See Section 251(1) (q) and (r) of the Constitution of Nigeria 1999 (as amended). See also NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR – 44464 (SC) AT pp. 51 – 54; Alhaji Umaru Abba Tukur V. Government of Gongola State(1989) 4 NWLR (Pt. 117) 517; Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA); Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA). PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja, Coram: Edward Okpe J, in Suit No. FCT/HC/CV/527/2021: Samuel Olalekan & Ors (For themselves and on behalf of all members of a Political Association known as Africa Youth Democratic Party (AYDP) lodged with the Independent National Electoral Commission as an intending Political Party vide letter dated 30/12/2020) V. Independent National Electoral Commission delivered on 13/7/2021, in which the claims of the Respondents were granted against the Appellant.
The Appellant was dissatisfied with the said judgment and had promptly appealed against it vide their Notice of Appeal filed on 26/8/2021 on six grounds of appeal. See pages 106 – 109 of the Record of Appeal. The Records of Appeal were duly compiled and transmitted to this Court on 26/11/2021. On 29/12/2021, the Appellant filed a Motion on Notice praying for leave to amend the Notice of Appeal. On 4/1/2022, the Respondents filed a Motion on Notice praying for an Order of Court effecting some correction on the Respondents’ process before the Court below. On 7/1/2022, the Respondents filed their Respondents’ brief in which there was incorporated a Preliminary Objection challenging the competence of both the Notice of Appeal and the Record of Appeal. The Appellant’s brief was field on 29/12/2021. The Respondents’ brief was filed on 7/1/2022. Both the Appellant’s Amended Notice of Appeal filed on 29/12/2021 and Appellant’s Reply brief filed on 17/1/2022 are the subject matters of the Appellant’s Motions on Notice field on 29/12/2021 and 17/1/2022 respectively to regularize the Appellant’s Amended Notice of Appeal and the Appellant’s reply brief, both of which were taken along with the hearing of the substantive appeal.
At the hearing of the appeal on 19/1/2022, M.I. Abubakar Esq., learned counsel for the Appellant, appearing with Eucharia Ezeani Esq., adopted the written addresses and reply address in support of both Appellant’s Motions on Notice filed on 29/12/2021 and 17/1/20222 respectively as his arguments and urged the Court to grant the application. On his part, Jude Daniel Odi Esq., learned counsel for the Respondents adopted the written address in support of the Respondents’ Motion on Notice filed on 4/1/2022 as his arguments and urged the Court to grant the application.
On the Respondents’ Preliminary Objection learned counsel for the Respondents adopted pages 4 – 9 of the Respondents’ brief as his arguments in support of the preliminary objection and urged the Court to strike out and or dismiss the appeal for being incompetent. On his part, learned counsel for the Appellant adopted pages 1 – 6 of the Appellant’s reply as his argument in opposition to the preliminary objection and urged the Court to dismiss the preliminary objection for lacking in merit.
On the main appeal, learned counsel for the Appellant adopted the Appellant’s brief and reply brief as his arguments in support of the appeal and urged the Court to allow the appeal set aside the judgment of the Court below. On his part, learned counsel for the Respondents adopted the Respondents’ brief as his arguments in opposition to the appeal and urged the Court to dismiss the appeal and affirm the Judgment of the Court below.
By an Originating Motion filed on 22/5/2021 before the Court below, pursuant to Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and Section 46 of the Constitution of the Nigeria 1999 (as amended), the Respondents as Applicants claimed against the Appellant as Respondent the following reliefs, to wit:
1. A declaration that the failure, neglect, omission or refusal by the Respondents to facilitate the registration of the Applicant’s political association as a political party, without any legally justifiable reason is unlawful, unconstitutional and amount to a violation of the Applicant’s rights to assemble freely and associate with one another, and in particular form and belong to a political party as enshrined under Section 34 of the 1999 Constitution, the time frame allowed to INEC for the registration the Applicants’ intended Africa Youth Democratic Party (AYDP) having elapsed.
2. An order compelling the Respondents severally to forthwith facilitate the registration of the Applicant’s political association as a political party to be known and referred to as Africa Youth Democratic Party (AYDP) with the acronym and logo as contained in the Letter of Intent of the Applicant’s dated, submitted and received by the Respondents on 30/12/2021, as the Applicants are willing, able and ready to meet all legal requirement for their registration inclusive of the payment of the N1,000,000.00 Administrative Fee as prescribed by the Respondent in its Regulation.
3. An Order of the Court for the sum of N2,500,000.00 only as substantial cost for the institution of this action.
4. And such further orders as the Court may deem fit to make in the circumstance.
The grounds for the application as set out in the Originating Motion were as follows:
A. The Applicants wrote to the Respondents on 30th December, 2020 expressing intent and seeking to be accorded the status of a political party.
B. The Respondents’ have constitutional and regulatory obligations to facilitate the Applicants’ request within legally defined timeframe.
C. The timeframe allowed in law have elapsed without the registration of the Applicants’ intended political party by the Respondents.
D. The 1999 Constitution and the Fundamental Rights (Enforcement) Procedure Rules cloth the Court with the jurisdiction to enforce or protect the fundamental human rights of any person in Nigeria, where same is breached or at the threat of being breached. See pages 1- 41 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Respondents as Claimants before the Court below as can be gleaned from the Affidavit in support, further affidavit and documentary Exhibits relied upon as in the Record of Appeal was that the Respondents for themselves and those that they represent submitted a letter of intent to the Appellant on 30/12/2020 seeking to be registered as a Political Party in Nigeria but regrettably the request was not acted upon till the Respondents were propelled to send a follow up letter of intent on 16/2/2021, both of which letters remained untreated by the Appellant.
Exasperated by the attitude of the Appellant, the Respondents were constrained to send demand letters to the Appellant, failing which they instituted an action against the Appellant before the Court below against the failure, neglect or refusal of the Appellant to treat the Respondents’ application and process the Registration of Africa Youth Democratic Party which violated and continues to violate the right of the Respondents and every member of the political association represented by the Respondents.
Curiously, after the 30 days period as prescribed by the law had lapsed, the Appellant purportedly caused a refusal letter to be written and sent to the Respondents rejecting the application for registration of a political party by the Respondents alleging, though falsely, that the name/acronym and logo of the Respondents’ association were similar to that of another political party. See pages 1 – 41 and 58 – 84 of the Record of Appeal.
The gist of the case of the Appellant as Defendant before the Court below as can be gleaned from the Counter-Affidavit and the documentary Exhibits as in the Record of Appeal was that the Respondents’ had applied to be registered as a political party in Nigeria but it was found that the application contravened the provisions of the Electoral Act 2010 (as amended) and the Guidelines regulating the registration of political parties in Nigeria in that the name/acronym and logo submitted by the Respondents for their proposed political party is similar to logos in other applications received by the Appellant during the period of the said application and was therefore, rejected and same communicated to the Respondents. See pages 42 – 50 of the Record of Appeal.
The parties filed and exchanged their affidavits, counter-affidavits and further affidavits. The Respondents’ affidavit in support was filed along with the Originating Motion on 22/2/2021. In response, the Appellant filed its Counter – Affidavit on 18/6/2021. In reaction, the Respondents filed their Further Affidavit on 28/6/2021. The Originating Motion proceeded to hearing on 31/7/2021 and after hearing, the Court below delivered its judgment on the same date of 13/7/2021, in which the claims of the Respondents as Claimants were granted against the Appellants as Defendants, hence the appeal. See pages 92 – 95, 96 – 105 and 106 – 109 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, four issues were distilled as arising for determination from the nine grounds in the Amended Notice of Appeal, namely:
1. Whether the Respondents’ action which was constituted as a joint and representative action for enforcement of fundamental rights under Section 46 of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 was competent as to confer jurisdiction on the trial Court to entertain same? (Distilled from Grounds 2, 7 and 8)
2. Assuming, without conceding, that the Respondents’ action was properly constituted as an action for enforcement of fundamental rights under Section 46 of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, whether the Court below has the jurisdiction to entertain the subject matter of the action? (Distilled from Ground 1)
3. Whether it was competent and/or right for the Court below to grant the reliefs it granted to the Respondents regard being had to the reliefs claimed in the suit and the grounds and facts in support thereof? (Distilled from Ground 9)
4. On the state of the affidavit evidence before the Court below and upon proper evaluation thereof, whether the Court below was right to have entered judgment for the Respondents? (Distilled from Grounds 3, 4, 5 and 6).
In the Respondents’ brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Court below rightly exercised its jurisdiction when it entertained the Respondents’ suit and entered judgment in favor of the Respondents? (Distilled from Grounds 1, 2, 7, 8 and 9)
2. Whether this Court can be invited to interfere with the discretion exercised by the Court below after a careful evaluation of the evidence adduced by the parties herein? (Distilled from Grounds 3, 4, 5 and 6)
I have taken time to consider and evaluate the depositions in the affidavits, counter-affidavit, further and better affidavit and documentary Exhibits relied upon by the parties as in the Records of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment appealed against and I am of the view that the proper issues arising for determination in this appeal are the four issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the Respondents’ brief. However, I shall consider Appellant’s issues one and two together with Respondent’s issue one and resolve them in one fell swoop. Thereafter, I shall consider Appellant’s issues three and four together with Respondents’ issue two and also resolve them in one fell swoop.
But first, there are several Motions on Notice and Preliminary Objection filed by the parties and I intend to consider them first as it appears to me to be proper first to do so before, if need be, proceeding to consider the merit or otherwise of the substantive appeal on the issues as already joined by the parties in their briefs.
RULING ON THE APPELLANT’S MOTION ON NOTICE FILED ON 29/12/2021
By a Motion on Notice filed on 29/12/2021, the Appellant/Applicant is praying this Court for the following orders:
1. An order enlarging the time within which the Appellant/Applicant can compile and transmit to this Court, the Record of Appeal in this appeal.
2. An order deeming as duly compiled and transmitted to this Court the Record of Appeal compiled and transmitted to the Court on 26/11/2021.
3. An order granting leave to the Appellant/Applicant to file additional grounds of appeal and amend the Applicant’s Notice of Appeal in this appeal filed on 26/08/2021 in the terms set out in the Schedule of Amendment of the Notice of Appeal and the underlined portion of the Proposed Amended Notice of Appeal attached hereto as Exhibits INEC 3 and INEC 4 respectively.
4. An order granting leave to the Appellant/Applicant to raise fresh issues as contained in grounds 1, 2, 7, 8 & 9 of the Proposed Amended Notice of Appeal attached hereto as Exhibit INEC 4.
5. An order deeming as properly filed and served the Appellant/Applicant’s Amended Notice of Appeal dated 27th December, 2021 clean copies of same having been filed and served separately on the Respondents.
6. An order deeming as properly filed and served the Appellant/Applicant’s Brief of Argument in this Appeal, clean copies of same having been filed and served separately on the Respondents.
7. Such further or other orders as this Court may deem fit to make in the circumstances.
The application is supported by an affidavit of 6 paragraphs deposed to by one Paul Esuk, Secretary/Litigation Officer in the law firm of the Applicant, annexed to which are Exhibit INEC 1, which is the judgment of the Court below appealed against in this appeal, and Exhibit INEC 2, which is the Notice of Appeal, Exhibit – INEC 3, which is the Schedule of Amendment of the Notice of Appeal, and Exhibit INEC 4, which is the Proposed Amended Notice of Appeal. In opposition, the Respondents filed a counter-affidavit of 10 paragraphs deposed to by the 2nd Respondent containing facts upon which the Respondents rely in opposition to the application.
APPELLANT’S COUNSEL SUBMISSIONS
In the written address in support of the application, learned counsel for the Appellant/Applicant had submitted that on the state of the affidavit evidence, the Appellant is entitled to the grant of all the reliefs sought in that this Court is empowered by law to make any order necessary for determining the real question in controversy in the appeal and may allow the parties to amend any defect or error in the record of appeal and contended that in law this Court has the power to grant leave to an Appellant to amend his Notice of Appeal, either to alter it, add to it or subtract from it, at any time once the original Notice of Appeal is valid and urged the Court to hold that the amendment sought raising fundamental issue of lack of jurisdiction is one which ought to be granted for the purpose of serving the ends of justice and to ensure that the complaints of the Appellant are properly laid and ventilated and to grant the application. Counsel referred to Section 15 of the Court of Appeal Act Cap C36 Law of the Federation of Nigeria 2004; Order 7 Rules 4 & 8 of the Court of Appeal Rules 2021 and relied on Coker V. Uba Plc. (1997) LPELR – 880 (SC) AT pp. 43 – 44; Fajebe & Anor V. Opanuga (2019) LPELR – 46348 (SC) AT pp. 12 – 13.
It was also submitted that the Notice of Appeal as in Exhibit INEC 2 is competent and the reasons for amendment sought to raises fresh issues of jurisdiction as shown in Exhibit INEC 2, which in law can even be raised for the first time on appeal without leave of Court, are very plausible and contended in law such an application ought to be granted so that the Appellant can add to the grounds of appeal and also amend some formal and or clerical errors in the Notice of Appeal in order to enable the Applicant to ventilate its grievances against the judgment appealed against and to enable this Court to justly and effectually determine the appeal based on the real questions in controversy in the Appeal and urged the Court to so hold and to grant the reliefs sought in the application. Counsel relied on Compact Manifold & Energy Service Ltd V. Pazan Services Nig. Ltd (2019) LPELR – 49221 (SC) AT p. 18; Onemu & Ors V. Commissioner for Agriculture & Natural Resources, Asaba & Ors (2019) LPELR – 47391 (SC) AT pp. 35-38.
RESPONDENTS’ COUNSEL SUBMISSIONS
In the written address in opposition to the application, learned counsel for the Respondents had submitted that reliefs 3, 4 and 5 of the Appellant’s Motion cannot be granted given the circumstances of this appeal in that they are not prayers that are grantable for the mere asking and contended that in law party seeking such reliefs must adduce credible, cogent and compelling facts and reasons that will sway the Court into exercising such discretion and urged the Court to hold that the facts relied upon by the Appellant, standing solely on admissible hearsay and not corroborated by documentary evidence, are worthless, bare and of no evidential value and to dismiss for lacking in merit. Counsel referred to Section 115 of the Evidence Act 2011 and relied on GTB V. Innoson Nigeria Ltd (2017) LPELR – 42368 (SC); Olojede V. Ige & Ors (2015) LPELR- 41678(CA)
It was also submitted that the Appellant has not shown enough diligence to entitle it to a grant of the relief sought and contended that the mere fact that the Appellant delays in deciding when to farm out a matter to its current counsel should not take back the hand of time so that parties can do what was not done or attempt to do that which has been left undone and urged the Court to hold that the Appellant had not come with clean hands in this supplication and to dismiss the application. Counsel relied on Chairman EFCC & Anor V. Littlechild & Anor (2015) LPELR -25199(CA).
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In the written reply address, learned counsel for the Appellant had submitted that the Appellant as Applicant had by the depositions in paragraphs 3(a) – (f) and 4(a) – (i) of the affidavit in support disclosed cogent and compelling reasons for the grant of its application and contended that there is nothing improper in law that it is the Applicant’s new counsel that discovered the additional grounds of appeal and appreciated the need to obtain leave in respect of the fresh issues raised in the additional grounds and some of the existing grounds of appeal which may not have been apparent to the Applicant’s former counsel and urged the Court to hold that in law not only can a Notice of Appeal be amended without the need to prove any special circumstances, the sins of counsel is not to be visited on the litigant and to grant the application for being meritorious. Counsel referred to Order 7 Rule 8 of the Court of Appeal Rules 2021 and relied on Uweh V. PDP & Ors (2010) LPELR – 12181 (CA) A pp. 38 – 40; Fajebe & Anor V. Opanuga (2019) LPELR – 46348 (SC) AT pp. 12 – 13; South Atlantic Petroleum Ltd V. Minister of Petroleum Resources (2013) LPELR – 21892 (SC) AT p. 17; Citizen International Bank Ltd. V. SCOA Nig Ltd (2006) LPELR – 5509 (CA) AT pp. 12 – 13.
RESOLUTION OF MOTION ON NOTICE FILED ON 29/12/2021
At the hearing of this application on 19/1/2022, learned counsel for the Respondents informed the Court that they are not objecting to the granting of reliefs 1, 2, 6 and 7. Consequently, reliefs 1, 2, and 6 are hereby granted. In the result, time is hereby extended till today for the Appellant to compiled and transmit the Record of Appeal to this Court. Consequently, the Record of Appeal compiled and transmitted to this Court on 26/11/2021 is hereby deemed respectively as duly compiled and transmitted to this Court today, 24/2/2022, while the Appellant’s brief filed on 29/12/2021 is hereby deemed as properly filed and served today, 24/2/2022. The Respondents’ brief as well as the Appellant’s reply brief are both hereby consequentially deemed as properly field and served today, 24/2/2022. See Order 6 Rule 9(1) of the Court of Appeal Rules, 2021.
My Lords, let me proceed to consider reliefs 3, 4 and 5 that are opposed by the Respondents. In law, this Court is empowered by law to make any order necessary for determining the real question in controversy in the appeal and may allow the parties to amend any defect or error in the record of appeal. It reserves the power to grant leave to an Appellant to amend his Notice of Appeal, either to alter it, add to it or subtract from it, at any time once the original Notice of Appeal is valid. See Section 15 of the Court of Appeal Act Cap C36 Law of the Federation of Nigeria 2004. See also Order 7 Rules 4 & 8 of the Court of Appeal Rules 2021.
In Fajebe & Anor V. Opanuga (2019) LPELR – 46348 (SC) AT pp. 12 – 13, the Supreme Court had emphatically expatiated inter alia thus:
“Once a notice of appeal is valid, it can be amended at any time before the appeal is heard. Such amendment should not be made to overreach the respondent, but only to serve the ends of justice and ensure that the complaints of the appellant against the judgment appealed against are laid and ventilated before the Court.”
Now, Exhibit INEC 2 is the Appellant’s Notice of Appeal disclosing the grounds on which it is challenging the judgment of the Court below. It raises, even though for the first time, fresh issues bordering on competence and jurisdiction as shown in Exhibit INEC 2, which in law can even be raised for the first time on appeal without leave of Court. So, are the reason preferred for the amendment plausible and is the Notice of Appeal sought to be amended competent? I have already held that even with only ground 5, the omnibus ground of appeal alone, in law the Notice of Appeal is valid, and therefore competent, subject however to my resolution of the issue of the representative capacity of the Respondents as omitted from the Original of Appeal and sought to be added to the Amended Notice of Appeal.
By paragraphs 3(a) – (f) and 4(a) – (i) of the affidavit in support the Appellant had set out the reasons for the application to amend the Original Notice of Appeal. I have considered these facts along with the facts as set out in opposition by the Respondents in their counter-affidavit. I have noted the fact that the amendment sought is principally to raise issues of jurisdiction for the first time in this Court in this Appeal and also to carry out some formal correction in the description of the Respondents. In my view prayers 3, 4 and 5 are fundamental being jurisdictional in nature and in law can be raised at any time and any stage of the proceedings, including being raised for the first time on appeal at this Court and even at the Supreme Court.
Having reviewed and evaluated the facts as placed before this Court by the parties and reviewed the divergent submissions of learned counsel to the parties, I am of the firm view that an application to add to the grounds of appeal and also to amend some formal and or clerical errors in the Original Notice of Appeal in order to enable the Appellant to ventilate its full grievances against the judgment of the Court below as well as to enable this Court to justly and effectually determine this Appeal based on the real questions in controversy between the parties, is one which is meritorious and therefore, ought to be granted. In my finding, it would not in any way prejudice the Respondents. See Order 7 Rules 4 and 8 of the Court of Appeal Rules 2021.
However, I thought it must be pointed out at once that merely raising an issue of jurisdiction does not clothe such grounds with any automatic success but like every other issue arising from valid grounds in an appeal its success would ultimately depends on the facts, circumstances and the applicable law. I therefore see no reason, and none has been made out by the Respondents, why issues raising threshold questions of jurisdiction should not be heard, considered and resolved one way or the other in this appeal. Indeed, in law all that a party seeking such reliefs as on the Appellant’s motion papers, particularly reliefs 3, 4 and 5, ought to do is to adduce credible, cogent and compelling facts and reasons, which I find the Appellant has done as required of it by law, that will sway the Court into exercising our discretion in its favor. In GTB V. Innoson Nigeria Ltd (2017) LPELR – 42368 (SC), the Supreme Court had opined inter alia thus:
“The law is trite and well settled that in an application of this nature the applicant must show good and substantial reason why the Court should exercise discretion in favour of his application. The granting of same is not a matter of course. Notwithstanding the foregoing conditions, the exercise of discretion should be judicious and judicial. The determining factors are contained in the facts as deposed to in the affidavits of parties.”
See Compact Manifold & Energy Service Ltd V. Pazan Services Nig. Ltd (2019) LPELR – 49221 (SC) AT p. 18. See also Onemu & Ors V. Commissioner for Agriculture & Natural Resources, Asaba & Ors (2019) LPELR – 47391 (SC) AT pp. 35-38.
In the result, the application has merit, and accordingly reliefs 3, 4 and 5 on the Appellant/Applicant’s Motion on Notice filed on 29/12/2021 are hereby granted. Consequently, leave is granted to the Appellant to file and argue additional grounds of appeal as well as well to raise fresh issues and to amend the Original Notice of Appeal in line with the Schedule of Amendment. The Amended Notice of Appeal filed on 29/12/2021 is hereby deemed as having been properly filed and served today, 24/2/2022.
RULING ON THE APPELLANT’S MOTION ON NOTICE FILED ON 17/1/2022
By a Motion on Notice filed on 17/1/2022, the Appellant/Applicant is praying this Court for the following reliefs:
1. An order enlarging the time within which the Appellant/Applicant can file the Appellant’s reply Brief of Argument in response to the Respondents’ Brief of Arguments in this appeal.
2. An order enlarging the time within which the Appellant/Applicant can file its reply address in response to the Respondents Written Address filed in opposition to the Appellant/Applicant’s Motion on Notice filed on 29/12/2021 for leave to file additional grounds of appeal etc.
3. An order enlarging the time within which the Appellant/Applicant can file its Counter-Affidavit and Written Address in opposition to the Respondents’ Motion on Notice filed on 4/1/2022 for leave to carry out some corrections in their processes
4. An order deeming as duly filed and served the Appellant/Applicant’s above stated processes clean copies thereof having been filed and served separately on the Respondents and all filing and default fees in respect thereto paid.
5. Such further or other orders as this Court may deem fit to make in the circumstances.
RESOLUTION OF MOTION ON NOTICE FILED ON 17/1/2022
At the hearing of this application on 19/1/2022, learned counsel for the Respondents informed the Court that they are not objecting to the granting of reliefs sought by the Appellant/Applicant in this application. Consequently, this application is hereby granted. In the result, time is hereby extended till today for the Appellant to file the Appellant’s reply in the substantive affidavit as well to file the Appellant/Applicants counter-affidavit and written address in opposition to the Respondents’ Motion on Notice field on 4/1/2022 and written reply address in Appellant’s Motion on Notice field on 29/12/2021. Consequently, the Appellant Reply Brief, the Appellant’s Counter affidavit and written address in opposition to the Respondents’ Motion on Notice field on 4/1/2022 as well as the Appellant’s written reply address to the Respondents’ written address in the Appellant’s Motion on Notice filed on 29/12/2021 are hereby deemed as properly filed and served today, 24/2/2022. See Order 6 Rule 9(1) of the Court of Appeal Rules 2021.
RULING ON THE RESPONDENTS’ MOTION ON NOTICE FILED 4/1/2022
By a Motion on Notice filed on 4/1/2022, the Respondents/Applicants are seeking the leave of this Court for an order of Court correcting the typographical and or clerical error on the Respondents’ Originating Motion in the judgment of the Court below and in the Record of Appeal to reflect the content of the Respondents/Applicants’ letter dated, submitted and received by the Appellant/Respondent on 30/12/2020 as opposed to the date of 16/2/2021 as contained in the judgment and the date of 30/12/2021 as contained in the Originating Motion filed on 22/2/2021.
The motion was supported by an affidavit of 25 paragraphs deposed to by one Mary Nwanze, the National Secretary of the Respondent/Applicants’ intended Africa Youth Democratic Party (AYDP). In response, the Appellant/Respondent filed a counter-affidavit of 6 paragraphs deposed to by one Paul Esuk, Secretary in the Chambers of the Appellants’ solicitors, attached to which are Exhibit INEC 1, the Respondents/Applicants’ letter of intent to the Appellant/Respondent dated and received on 30/12/2020 and Exhibit INEC 2, the Respondents/Applicants’ letter of intent to the Appellant/Respondent dated and received on 16/2/2021.
RESPONDENTS/APPLICANTS’ COUNSEL SUBMISSIONS
In the written address in support of the application, learned counsel for the Respondents/Applicants had submitted that this Court as a Court of justice is empowered by law to exercise its discretion to grant the reliefs sought in the interest of justice and contended that by paragraphs 16, 17, 18 and 19 of the affidavit in support there were some clerical and or typographical or human errors committed in which reference to Section 40 of the Constitution of Nigeria 1999 (as amended), which was mistakenly typed as Section 34 as well as a letter of intent dated, submitted and received on 30/12/2020 was mistakenly typed as dated, submitted and received on 30/12/2021 and which error was also advertently and inadvertently entered into the judgment of the Court below as the second letter of intent dated, submitted and received 16/2/2021 instead of the letter of intent dated, submitted and received on 30/12/2020 and urged the Court to hold that both parties and the Court below were aware of the correct Section 40 of the Constitution providing for the right to freedom of assembly and formation of political party and the actual letter of intent dated 30/12/2020 and to grant the application to effect the correction sought by the Respondents/Applicants. Counsel referred to Section 15 of the Court of Appeal Act 2004; Order 4 Rules 1 and 11 of the Court of Appeal Rules 2021 and relied on FRN V. Ademola & Anor (2021) LPELR-55589(CA); Surakatu V. Adekunle (2019) LPELR-46412(CA); Henry Atuchukwu V. Gloria Adindu (2011) LPELR – 3821 (CA).
APPELLANT/RESPONDENT’S COUNSEL SUBMISSIONS
In the written address in opposition to the application, learned counsel for the Appellant/Respondent had submitted that in law the powers of this Court to effect amendments or correction of processes, judgments or Record of Appeal is not available in the circumstances of this application and contended that the Respondents are not entitled to the grant of their application for amendment or correction because the errors sought to be amended or corrected are not mere typographical or clerical errors but fundamental affecting the substance of their claim and the judgment of the Court below under relief 2 granted by the Court below without jurisdiction and urged the Court to hold that the application was made mala fide and or intended to overreach the Appellant and defeat the substance of the appeal under Ground 9 of the Amended Notice of Appeal and to dismiss the application. Counsel referred to Section 15 of the Court of Appeal Act; Order 4 Rule 1 of the Court of Appeal Rules 2021 and relied on Awodi & Anor V. Ajagbe (2014) LPELR – 24219 (SC) AT pp. 41 – 42, The Nigeria Air Force V. Shekete (2002) 12 SCNJ 35 AT pp. 52 – 53, Barbus & Co. Ltd. V. Udeji (2017) LPELR – 41960 (CA) AT pp. 14 – 15, Yusuf V. Adegoke & Anor (2007) LPELR – 3534 (SC) AT p. 43, Niwa V. Spdc (Nig) Ltd (2008) LPELR – 1963 (SC) AT p. 21, Kalu & Ors V. Kalu & Ors (2018) LPELR – 44264 (CA) AT pp. 9-10 and Buraimoh V. Alejo (2014) LPELR – 23203 (CA) AT p. 9.
RESPONDENTS/APPLICANTS’ COUNSEL REPLY SUBMISSIONS
In the written reply address, learned counsel for the Respondents/Applicants had submitted that paragraphs 3 (b), (f) (h) (i) – (iii) of the Appellant’s counter-affidavit amount to legal arguments and liable to be struck out and contended that the Appellant, who carries the onus to establish what it would suffer, failed to show anything it would suffer or how it would be over reached if the amendments sought are granted and urged the Court to hold that the contention by the Appellant that granting the application would overreach them merely because of ground 9 of the Amended Notice of Appeal is not tenable and to grant the application in the interest of justice to reflect the proper case of the Respondents as granted by the Court below. Counsel referred to Section 115 of the Evidence Act 2011 and relied on Ogunwale V. Syrian Arab Republic [2002] 9 NWLR (Pt. 771) 127 AT pp. 153 -154; Chief of Defense Staff V. Adhekegba (2009) 13 NWLR (Pt. 1158) 332 AT p. 363, Ani V. Effiok (2017) 8 NWLR (Pt. 1567) 281 SC AT p. 304; Agbareh V. Mimra (2008) 2 NWLR (Pt. 1071) 378 AT p. 419.
RESOLUTION OF MOTION ON NOTICE FILED ON 4/1/2022
My Lords, the first ground of opposition to this motion by the Respondents by the Appellant was that there is no seal of the counsel for the Respondent on the Motion on Notice as required by the Rules of Professional Conduct and thereby rendered the motion irregular. I have looked at the original copy of the Motion on Notice, and I can see clearly stamped on it the stamp and seal of the learned counsel for the Respondents on the original Court copy of the Motion on Notice and therefore, the first ground of objection lacks merit and is dead on arrival. It is hereby discountenanced and overruled.
Let me now consider the substance of this application as to its merit or otherwise on the facts and submissions of counsel for the parties.
My Lords, in law the powers of this Court to effect amendments or correction of processes, judgments or Record of Appeal is not and has never been in any doubt, yet such corrections are usually limited in scope to errors or slips which are mere typographical or clerical errors but never extended to fundamental errors affecting the substance of the issues in contention between the parties.
By Order 4 Rule 1 of the Court of Appeal Rules 2021, it is provided thus:
“In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the lower Court, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the lower Court in civil matters to refer any question or issue of fact arising on the appeal for trial before or inquiry and report by, an official or special referee. In relation to a reference made to an official or special referee, anything, which can be required or authorized to be done by, to or before the lower Court, shall be done by, to or before the Court.”
See Section 15 of the Court of Appeal Act.
See also Awodi & Anor V. Ajagbe (2014) LPELR – 24219 (SC) AT pp. 41 – 42 and The Nigeria Air Force V. Shekete (2002) 12 SCNJ 35 AT pp. 52 – 53.
I have calmly considered at this stage of this interlocutory application even though argued along with the substantive appeal, and noted the submission of learned counsel in paragraph 3. 4 of their written address that the Court may have advertently, that is knowingly, or inadvertently, that is knowingly, granted relief 2 to the Respondents on their letter of intent dated 16/2/2021 instead of their letter of intent dated 30/12/202. I am afraid, I cannot fathom the rationale for this contention, being the thrust of the Respondents’ case in this application to the effect what they seek to amend may after all be decision reached by the Court below not inadvertently but with full understanding of what it was deciding.
So, is a decision reached by the Court below to grant a relief in its judgment appealed against covered by the power of amendment and or correction under Order 4 Rule 1 of the Court of Appeal Rules 2021 as sought to be done by the Respondents in this application? I think not! Thus, whether the issue of whether the grant of relief 2 with reference to the Respondents’ letter of intent dated 16/2/2021 and not with reference to their letter of intent dated 30/1/2020 is not one which can be determined in an interlocutory application of this nature but is one which must await a due consideration in the substantive appeal, in order not to prejudge at this stage of considering an interlocutory application an issue which has already been raised, and very vehemently too, in the substantive appeal.
See for instance ground 9 of the Amended Notice of Appeal raising issues of jurisdiction touching on matters now sought, at this interlocutory stage, to be amended by the Respondents. It is therefore, my firm view that on the face of issue three arising from ground 9 of the Amended Notice of Appeal, without at this stage deciding the merit or otherwise of issue three in the substantive appeal, the application by the Respondents/Applicants if granted would clearly and irreversibly overreach and knock off the core of the Appellant/Respondent’s contention under issue three in the substantive appeal. In Yusuf V. Adegoke & Anor (2007) LPELR – 3534 (SC) AT p. 43, the Supreme Court had opined inter alia thus:
“The law recognizes a possible lapse or failure of the human memory and has worked out procedures for amendment of pleadings to accommodate any possible lapse or failure…where an application for amendment is designed to overreach the Respondent, the Court will not grant the application. This arises when the Applicant cleverly anticipates the core of the case of the Respondent and seeks the amendment to frustrate the case with the result that the Respondent fails at the end of the day…It is designed to defeat the object or objective of the Respondent’s case by going too far, in the sense of destroying the core or fulcrum of the Respondent’s case.”
My Lords, in law the power of this Court to carry out corrections in the processes and or judgment of the Court below is not one left at large and without any inhibition whatsoever. At any rate, by the provisions of the law empowering this Court to carry out this very delicate function with the need to ensure fairness and justice and that none of the parties is overreached by its exercise is not mandatory on this Court but clearly optional by the use of the word ‘may”. I am not satisfied, on the facts and circumstances of this application as shown in the affidavit and counter-affidavit of the parties, that this is a proper case for this Court to exercise its delicate but enormous powers to carry out the corrections sought by the Respondents/Applicants without irreversible overreaching the Appellant/Respondent at this stage of this judgment. Accordingly, this application fails and it is liable to be dismissed and I hereby so dismiss it for lacking in merit.
RULING ON THE RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection incorporated in the Respondents’ brief filed on 7/1/2022, the Respondents are challenging the competence of the Notice and Record of Appeal in that the grounds of appeal are incompetent for being argumentative as well as the Record of Appeal is grossly incompetent and liable to be dismissed or struck out for reconstituting or distorting parties as they were before the Court below.
RESPONDENTS’ COUNSEL SUBMISSIONS
In support of the preliminary objection, learned counsel for the Respondent had submitted that the Notice of Appeal as well as the Record of Appeal are grossly incompetent and liable to be dismissed or struck out for reconstituting or distorting parties as they were before the Court below and contended that the person represented by the Respondents are a class of teaming youths of diverse ethnic, gender, cultural, social and religious background with a common political goal and therefore, any attempt to omit the full names of these representatives and the capacity in which they sued the Appellant before the Court below would definitely amounts to reconstituting the parties and urged the Court to hold that such reconstitution of the parties rendered the appeal incompetent and which cannot be cured and to strike out the appeal for being incompetent. Counsel relied on Anyanwu V. Oparaocha & Ors (2019) LPELR – 47336 (CA); Okonji V. Njokanma (1989) 4 NWLR (Pt. 114) 161; Amininaowuka V. Derego (2011) LPELR – 9099 (CA) 1 AT p. 10; Okwuosa V. Gomwalk & Ors (2017) LPELR- 41736 (SC).
It was also submitted that grounds 1, 2, 3 and 4 of the grounds of appeal are incompetent in that they contain arguments founded on Section 251 (1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and contended that in law this Court cannot exercise jurisdiction over incompetent grounds of appeal and urged the Court to hold that these grounds of appeal together with their argumentative particulars are incurably defective and therefore, liable to be struck out and to strike them out for being incompetent. Counsel referred to Order 7 Rule 2 (3) of the Court of Appeal Rules 2021 and relied on Eze V. Gov., Abia State (2014) 14 NWLR (Pt. 1426) 192 AT p. 214; Abe V. Unilorin (2013) 16 NWLR (Pt. 1379) 178 AT p. 183.
It was further submitted that ground 6 of the grounds of appeal is unknown to law and should be struck out and contended that grounds 1 (ii), (iv); 2 (ii), (iii-vii); 3 (ii); 4 (ii), (iii); 6 (i) – (iv); 7 (i), (iii); 8 (iii) and 9 (v) of the Amended Notice of Appeal are all defective and liable to be struck out along with the entire grounds 1, 2, 3, 4, 6, 7, 8 and 9 of the Amended Notice of Appeal and urged the Court to so hold and to strike out these grounds in the Appellant’s Amended Notice of Appeal for being incompetent. Counsel relied on Abe V. Unilorin (2013) 16 NWLR (Pt. 1379) 178 AT p. 183.
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In the reply brief, learned counsel for the Appellant had submitted that in law since the Respondents are not challenging the competence of ground 5, the Appellant’s Appeal is competent in that the said lone ground of appeal is sufficient to sustain the appeal and contended that in the Notice of Appeal and more particularly in the Amended Notice of Appeal, all the eight persons who sued as Applicants , now the Respondents, against the Appellant, then as Respondent, before the Court below are duly reflected in the Notice of Appeal filed on 26/8/2021 as well as on the Record of Appeal transmitted to this Court on 26/11/2021 and urged the Court to hold that the mere absence of the words ‘Suing for themselves and on behalf of all members of a Political Association known as Africa Youth Democratic Party (AYDP) lodged with the Independent National Electoral Commission (INEC) as an intending Political Party vide letter dated 30/12/2020’ has no adverse legal effect whatsoever on the competence of the appeal as already amended in the Amended Notice of Appeal and to dismiss the preliminary objection for lacking in merit. Counsel relied on Madumere V. Nwosu & Ors (2009) LPELR – 12706 (CA) AT p. 59; Abubakar V. Yar’adua & Ors (2008) LPELR – 51 (SC) AT p. 105.
It was also submitted that the expression is a mere description of the capacity in which the Respondents sued, which this Court can allow to be amended by the Appellant to include such description, and contended that in law where the evidence in an action reveal that the action was prosecuted by a party in a representative capacity, even though not formally reflected in the title of the action, the Court can properly enter judgment for or against such party in that capacity without any amendment to reflect the capacity and urged the Court to so hold and to dismiss the preliminary objection for lacking in merit. Counsel referred to Section 15 of the Court of Appeal Act Cap. C36 Laws of the Federation of Nigeria 2004 and relied on Afolabi & Ors V. Adekunle & Anor (1983) LPELR – 194 (SC) AT p. 23; Gbogbolulu V. Hodo (1941) 7 WACA 164; NNPC & Anor V. Famfa Oil Ltd (2012) LPELR – 7812 (SC) AT p. 53; Kode V. Yussuf (2001) LPELR – 1695 (SC) AT p. 26.
It was further submitted that grounds 1, 2, 3 & 4 of the Notice of Appeal are competent as they concisely set out under distinct heads, the Appellant’s grievances with the judgment of the Court below and/or the errors committed by the said Court in its judgment and contended that in law an otherwise competent ground of appeal is not rendered incompetent simply because one or two particulars therein are found to be argumentative as erroneously contended by the Respondents and urged the Curt to hold that grounds 1(ii), (iv); 2(ii), (iii – iv); 3(ii); 4 (ii), (iii); 6(i) – (iv); 7 (i), (iii); 8(iii) and 9 (v) of the Amended Notice of Appeal objected to without proffering any reason why they are incompetent are all competent and to dismiss the preliminary objection and hear the appeal on the merit in the interest of justice. Counsel relied on Awusa V. Nigerian Army (2018) LPELR – 44377 (SC) AT pp. 36 -37; Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 AT p. 257.
RESOLUTION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
My Lords, the challenge by the Respondents to the competence of the Appellant’s Notice of Appeal, as well as the Appellants’ Amended Notice of Appeal are two pronged, namely: that the Original Notice of Appeal and the Record of Appeal are incompetent for distortion of the parties as they were before the Court below, and that all but one of the grounds of appeal are incompetent for being argumentative.
However, it would appear that going by the grounds of appeal being challenged by the Respondents, they are not challenging the competence of ground 5 of the grounds of appeal, the omnibus grounds of appeal. It does appear to me that the contention of the learned counsel for the Respondents is that almost all the grounds of appeal, save ground 5 which is the omnibus ground, are argumentative and therefore incompetent. Yet, as was rightly submitted by the learned counsel for the Appellant, even if all the other grounds of appeal are incompetent but ground 5 is competent, in law the Notice of Appeal containing a sole competent ground of appeal would remain competent and valid, notwithstanding whether or not some of the particulars of the other grounds of appeal may have been argumentative. See Madumere V. Nwosu & Ors (2009) LPELR – 12706 (CA) AT p. 59. Abubakar V. Yar’adua & Ors (2008) LPELR – 51 (SC) AT p. 105.
I have looked calmly at grounds 1, 2, 3 & 4 of the Notice of Appeal and grounds 1(ii), (iv); 2(ii), (iii – iv); 3(ii); 4 (ii), (iii); 6(i) – (iv); 7 (i), (iii); 8(iii) and 9 (v) of the Amended Notice of Appeal and considered the divergent submissions of counsel for the parties, and I find that these grounds of appeal are competent as they concisely set out under distinct heads, the Appellant’s grievances with the judgment of the Court below and/or the errors committed by the said Court in its judgment. In law, an otherwise competent ground of appeal is not rendered incompetent simply because one or two particulars therein are found to be argumentative as contended, though erroneously, by the learned counsel for the Respondents. See Awusa V. Nigerian Army (2018) LPELR – 44377 (SC) AT pp. 36 – 37. See also Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 AT p. 257.
At any rate, there is no way a dispassionate look at grounds 1, 2, 3, 4, 6, 7, 8 and 9 of the Amended Notice of Appeal, which by the leave to amend granted to the Appellant earlier in this judgment, is the extant Notice of Appeal, together with their particulars, can be described as wholly argumentative and thus incompetent. In law, all that is required of an Appellant by the Rules of this Court, in articulating his grounds of appeal, is to give sufficient notice and information as to the precise nature of his complaint to the Respondent. Thus, once a ground of appeal satisfies that purpose it is competent, valid and cannot be described as argumentative and therefore, any ground of appeal that satisfies that purpose should not be struck out. See Awusa V. Nigerian Army (2018) LPELR – 44377 (SC) AT pp. 36 – 37, where the Supreme Court had stated inter alia thus:
“The law is that once the error complained of is identified and properly oriented in the ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice “
See also Best (Nig.) Ltd. V. BH (Nig. Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC.
Thus, in law once sufficient particulars can be gleaned from the grounds of appeal, it is not every failure to state fastidious details as prescribed by the rules of Court that would render such an otherwise competent ground incompetent. Therefore, once the other party, as in the instant case the Respondents, as well as this Court are not left in any doubt as to the particulars on which the grounds of appeal are founded, that would suffice. See Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 AT p. 257. See also Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253; Abe V. Unilorin (2013) 16 NWLR (Pt 1379) 183; Dyeris V. Mobil Oil (Nig.) Plc (2010) 1 NWLR (Pt. 1175) 309 AT p. 329; Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253.
I have taken a calm look at the Originating Motion filed by the Respondents and the Notice of Appeal filed by the Appellant and I can see that the Respondents sued the Appellant ‘Suing for themselves and on behalf of all members of a Political Association known as Africa Youth Democratic Party (AYDP) lodged with the Independent National Electoral Commission as an intending Political Party vide letter dated 30/12/2020’ which clearly implies they sued in dual capacities. I can also see that it was in these dual capacities, both individually and as representatives that they prosecuted the action before the Court below.
In the circumstances, can it be right as contended by the Respondents that the Appellant’s Notice of Appeal, even in the absence of the already Amended Notice of Appeal in which the Respondents’ capacity had been properly reflected, is incompetent because it expressed only one of the dual capacities of the Respondents, in their individual capacity in which they sued the Appellant or that they are representing an unincorporated association, which is not a legally juristic person as contended by the learned counsel for the Respondent? I think not! The Respondent having sued for themselves, as juristic persons, and on behalf of their unincorporated association, non-juristic person, their presence alone rendered their Suit competent. This is why in law, individual family members can competently sue and maintain an action for themselves and on behalf of or as representatives of their family or community, which ordinarily are non-juristic entities. See Anthony V. Elias & Anor (2017) LPELR – 45027 (CA). See also Beswick V. Beswick (1968) AC 58.
Indeed, the expression ‘for themselves and on behalf’ is a mere description of the dual capacities in which the Respondents sued, which this Court can readily allow to be amended by the Appellant to include such description. This is because in law, where the evidence in an action reveal that the action was prosecuted by a party in a representative capacity, even though not formally reflected in the title of the action, the Court can properly enter judgment for or against such party in that capacity without any amendment to reflect the capacity. In Afolabi & Ors V. Adekunle & Anor (1983) LPELR – 194 (SC) @ p. 23, the Supreme Court had stated inter alia thus:
“This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained… It would be otherwise if the case is not made out in a representative capacity.” At any rate, the Respondents were never misled as to the dual capacities in which they sued the Appellant and the capacity in which they are involved in this appeal, which is clearly one of the dual capacities in which they filed their Originating Motion. Thus, the preliminary objection, in this respect, appears to me more like merely a red herring founded on undue technicalities as opposed to the substance of the appeal. I am of the firm view, and it is the law, that whether or not the Respondents had joined issues with the Appellant by a reply to this contention, since this contention is utterly baseless even on its merit, it would still go to no issue at all and must be discountenanced. It is mere technicality taken too far!
Indeed, I cannot see how the Respondents, who had on their own volition sued the Appellant in dual capacities, could be misled by the Appellant appealing against them in their individual capacity, which is one of the dual capacities in which they sued the Appellant. In law, the Respondents having on their own volition sued the Appellant in their dual capacities cannot now turn around to contend that the Appellant must appeal against them only in the dual capacities and not in only one of the separate and distinct dual capacities in which they sued the Appellant. The Respondents must endeavor to be consistent. Indeed, consistency is one of the hall marks of truth! See Ajide V. Kelani (1985) NWLR (Pt. 12) 248 AT p. 269.
So, can these trivial issues thrown up by the ineffective grounds of the preliminary objection alone, without more, suffice to render either the Notice of Appeal or Amended Notice of Appeal incompetent and deny the parties in the instant appeal the benefit of substantial justice by having their rights determined on the merit? I think not! In law these are mere trifles which should not be allowed to obfuscate the real, crucial and substantial issues in this appeal before this Court. In Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) AT pp. 119 – 121, this Court had per Georgewill JCA, stated inter alia thus:
“These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases… The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king!”
See also Jeric Nigeria Ltd V. Union Bank Nig Plc (2000) 15 NWLR (Pt. 691) 477; African Songs Ltd & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) Per Georegwill JCA.
In the circumstances therefore, having not found any merit in all or any of the misconceived grounds of preliminary objection of the Respondents, the same is liable to be dismissed. Accordingly, I hereby so dismiss the preliminary objection in its entirety for lacking in merit.
ISSUES ONE AND TWO TAKEN TOGETHER
Whether the Respondents’ action which was constituted as a joint and representative action for enforcement of fundamental rights under Section 46 of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 was competent as to confer jurisdiction on the trial Court to entertain same AND assuming, without conceding, that the Respondents’ action was properly constituted as an action for enforcement of fundamental rights under Section 46 of the 1999 Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, whether the Court below has the jurisdiction to entertain the subject matter of the action?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that the Respondents’ action was filed as a joint and representative action by the Respondents purportedly to enforce fundamental rights in respect of the cause of action arising from the alleged refusal or failure of the Appellant to register or facilitate the registration of the Respondents’ political association, ‘Africa Youth Democratic Party (AYDP)’ as a political party, which the Appellant rightly declined on the ground that the application contravenes the provisions of the applicable law and contended that from the claims of the Respondents and the facts relied upon by them their principal cause of action has nothing to do with the enforcement of fundamental right as enshrined in the Constitution and urged the Court to hold that in law the Court below was wrong to have assumed jurisdiction to hear and determine same as action founded on enforcement of fundamental right and to allow appeal and aside the judgment of the Court below delivered without competence. Counsel referred to Section 46 of the Constitution of the Federal Republic of Nigeria (as amended); Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009; Section 82(2)(c) of the Electoral Act 2010 (as amended) and relied on Tukur V. Government of Taraba State & Ors (1997) LPELR – 3273 (SC) AT pp. 33 – 34; Emeka V. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Iheanacho V. NPP (2017) 12 NWLR (Pt. 1580) 424; Nwokoleme V. Ajaero & Ors (2016) LPELR – 40073 (CA) AT pp. 11 – 12 E; EFCC V. Iigboeruche & Ors. (2019) LPELR – 47268 (CA) AT pp. 18 – 25.
It was also submitted that from the reliefs, grounds, facts and circumstances relied upon by the Respondents their cause of action is essentially the refusal or failure of the Appellant to register or facilitate the registration of the Africa Youth Democratic Party (AYDP) and contended that Respondents’ action was wrongly constituted and filed as an action for enforcement of fundamental rights when it was not and therefore, the Court below wrongly assumed jurisdiction to entertain and determine the same as an action for the enforcement of the fundamental right of the Respondents and urged the Court to hold that the Respondents’ suit is incompetent and the Court was thereby robbed of the requisite jurisdiction to entertain the same and to allow the appeal, set aside the judgment of the Court below and strike out the Respondents’ suit for being incompetent. Counsel referred to Sections 40, 46 and 222 of the Constitution of Nigeria 1999 (as amended); Section 78 and 79 of the Electoral Act 2010 (as amended); Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
It was further submitted that not only is the right to freedom to association and forming political party was not absolute but can be derogated from by the Appellant by due and lawful refusal to register an association as a political party, it is not a fundamental right to be registered or accorded recognition as a political party by the Appellant and contended that the complaint or grievance of the Respondents in their action was not that they were denied of their right to assemble freely or associate with other persons to form a political party but rather their complaint is that having associated with other persons and formed a political association, the Africa Youth Democratic Party (AYDP) and applied for registration or to facilitate their registration as a political party, the Appellant refused to register the association as a political party or facilitate its registration as such even after they have allegedly fulfilled all the constitutional and statutory requirements for the registration and urged the Court to hold that the Respondents’ suit was also incompetent having been commenced as a joint action by eight persons as opposed to by ‘any person’ as prescribed by law and to allow the appeal, set aside the judgment of the Court below and strike out the Respondents’ suit for being incompetent. Counsel referred to Section 46 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and relied onKporharor & Anor V. Yedi & Ors (2017) LPELR – 42418 (CA) AT pp. 8 -13; Raymond S. Dongtoe V. Civil Service Commission, Plateau State & Ors (2001) 4 SCNJ 131; RTFTCIN V. Ikwecheigh (2000) 13 NWLR (Pt. 683) AT p. 1; Okechukwu V. Etukokwu (1998) 8 NWLR (Pt. 562) 511.
It was also further submitted that not only was the Respondents’ suit improperly constituted by eight joint Applicants ‘for themselves’, it was also commenced ‘on behalf of all members of a political association known as Africa Youth Democratic Party (AYDP)’ which association being not a registered corporate body is not a legal person and contended that in law only a legal person, either natural or corporate, can sue or be sued in a Court of law and urged the Court to hold that the Respondents’ suit is incompetent on both grounds and to allow the appeal, set aside the judgment of the Court below and strike out the Respondents’ suit for being incompetent. Counsel relied on Agbonmagbe Bank Ltd V. General Manager G. B. Olivant Ltd & Ors (1961) All NLR 116; Registered Trustees of Airline Operators of Nig V. Nama (2014) LPELR – 22372 (SC) AT Pp. 18 – 19; The Admin. & Exec. of The Estate of Abacha V. Eke -Spiff & Ors (2009) LPELR – 3152 (SC) AT pp. 50 – 51.
On issue two, learned counsel for the Appellant had submitted that the Court below, being the High Court of the Federal Capital Territory, Abuja, lacks the jurisdiction to entertain matters of fundamental rights, although brought pursuant to Section 46 of the Constitution of Nigeria 1999 (as amended) where the alleged breach of such matters arose from a transaction or subject matter which falls within the exclusive jurisdiction of the Federal High Court as provided by Section 251(1) of the Constitution of Nigeria 1999 (as amended).
It was also submitted that by virtue of Section 251(1)(q) and (r) of the Constitution of Nigeria 1999 (as amended), the Federal High Court has exclusive jurisdiction in respect of matters relating to the operation and interpretation of the Constitution in so far as it affects the Federal Government or any it’s agencies as well as in respect of any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and urged the Court to hold that notwithstanding the provisions of Section 46 of the Constitution of Nigeria 1999 (as amended), by virtue of Section 251(1)(q) & (r) of the Constitution of Nigeria 1999 (as amended), the Federal High Court has exclusive jurisdiction over the subject matter of the Respondents’ suit.
It was further submitted that the Respondents’ action was for declaration and orders of injunction as affecting the validity of the executive or administrative action or decision of the Appellant in refusing or failing to register or facilitate the registration of the Respondents’ Association, Africa Youth Democratic Party (AYDP), as a political party pursuant to the relevant provisions of the Constitution and the Electoral Act and contended that by reason of the above the Court below had no jurisdiction whatsoever to have entertained the said suit and urged the Court to allow the appeal, set aside the judgment of the Court below and strike out the Respondents’ suit for being incompetent. Counsel referred to Sections 46 and Section 251(1)(p), (q) and (r) of the Constitution of Nigeria 1999 (as amended), and relied on Adetona V. Igele General Enterprises Ltd (2011) 7 NWLR (Pt. 1247) 535 AT pp. 563 – 564; Abdulraheem & Ors V. Oduleye & Ors (2019) LPELR – 48892 (SC) AT pp. 18 – 22; Elelu – Habeeb & Anor V. A.G. Federation & Ors (2012) LPELR – 15515 (SC) AT pp. 110 – 113; Ahmed V. Ahmed & Ors (2013) LPELR – 21143 (SC) AT pp. 56 – 58; NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR – 44464 (SC) AT pp. 51 – 54.
RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondents had submitted that the Respondents’ cause of action was the failure of the Appellant to facilitate the registration of the Respondents’ association as a political party within the time frame prescribed by law and contended that such a failure amounted to a violation of the Respondents’ fundamental right to assemble and form and belong to association of their own choice upon due fulfilment of all the conditions as stipulated by law and urged the Court to hold that the reliefs 1 and 2, which are the principal reliefs sought by the Respondents are purely reliefs for the enforcement of the fundamental rights of the Respondent and therefore, strictly within the jurisdiction of the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 40 of the Constitution of Nigeria 1999 (as amended) and relied on Ukeh V. Okorie & Ors. (2018) LPELR – 45486 (CA) AT pp. 18-19.
It was also submitted that in law the use of the word ‘any person’ in Section 46(1) of the Constitution of Nigeria 1999 (as amended) admits both the singular and plural by virtue of the Interpretation Act 2004 and contended that in law a joint application by more than one person for the enforcement of their fundamental right is permissible and therefore, competent and urged the Court to hold that in law the joint application by the Respondents for themselves and on behalf of their association seeking to be registered as a political party was competent and the Court below had the jurisdiction, regardless of the status or character of the parties, to have heard and determined it and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 14, of the Interpretation Act 2004 and relied on Incorporated Trustees of Digital Rights Lawyers Initiative & Ors. V. NIMC (2021) LPELR – 55623 (CA); EFCC V. Reinl [2020] 9 NWLR 489 (Pt. 1730) 489 AT pp. 514 – 515.
It was further submitted that in law so long as the enforcement of the Applicant’s fundamental right is the main claim in the suit, and not just an ancillary claim, the Federal High Court and State High Courts, including the High Court of the Federal Capital Territory, the Court below have concurrent jurisdiction to entertain it and urged the Court to hold that the Court below was rightly exercised its jurisdiction when it entertained the Respondents’ suit and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 46(1) of the Constitution of Nigeria 1999 (as amended) and relied on EFCC V. REINL (2020) 9 NWLR 489 (Pt. 1730) 489 AT pp. 514 – 515.
It was also further submitted that the date 30/12/2020 mistyped as 30/12/2021 as well as the inadvertence reference to Section 34 of the Constitution of Nigeria 1999 (as amended) rather than Section 40 of the Constitution of Nigeria 1999 (as amended), which are clerical/typographical error, but correctly reflected in some parts of the Record of Appeal, which this Court can suo motu correct such error on appeal and contended that neither the parties, including the Appellant nor the Court below was misled about both the correct date of 30/12/2020 and the relevant Section 40 of the Constitution of Nigeria 1999 (as amended) and urged the Court to hold that no miscarriage of justice was occasioned on the Appellant and carry out the necessary and harmless corrections of 16/2/2021 to 30/12/2020 in relief 2 as granted by the Court below suo motu in the interest of doing substantial justice between the parties, dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 15 of the Court of Appeal Act 2004; Order 4 Rules 1 and 4 of the Court of Appeal Rules 2021 and relied on AG of Bendel State V. Aideyan (1989) 4 NWLR (Pt. 118) 646 AT p. 681.
It was also submitted that even without any correction to the mistyped date in relief 2 as granted by the Court below the relief 2 so granted, reliefs is still valid in that the Respondents wrote two letters of intent to the Appellant and both which were the subject matters of the Respondents’ Suit before the Court below and contended that the Respondents had in addition to their specific reliefs also claimed the omnibus prayer under the inherent jurisdiction of the Court below which cover the relief 2 as granted by the Court below and urged the Court to hold that in law a Court of law has power to grant reliefs rightly sought for, even where such reliefs were sought under the wrong law and dismiss the appeal and affirmed the judgment of the Court below. Counsel relied on FRN V. Ademola & Anor (2021) LPELR – 55589 (CA). See Falobi V. Falobi (1976) 1 NMLR 169, @p. 177.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellants virtually reiterated his earlier submissions but in law the reply brief is not an avenue to re-argue the appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
Be that as it may, it was reiterated once the alleged breach of fundamental right is incidental or ancillary to the main complaint, it is incompetent to proceed under the Fundamental Rights (Enforcement Procedure) Rules 2009 and contended again that the principal claim of the Respondents’ suit was not for enforcement of any fundamental right but to challenge the administrative decision of the Appellant and therefore, outside the jurisdiction of the Court below and urged the Court to so hold and to allow the appeal, set aside the judgment of the Court below and strike out the Respondents’ suit for being incompetent. Counsel relied on Sea Trucks Nig. Ltd V. Anigboro (2001) 1 SC (Pt. 1) 45 AT pp. 60 – 62; Government of Kwara State V. Lawal (2006) All FWLR (Pt. 336) 313 AT pp. 346 – 347; Abubakar Tatali Ali Polytechnic V. Maina (2005) All FWLR (Pt. 284) 250 AT pp. 261 – 262.
RESOLUTION OF ISSUES ONE AND TWO
My Lords, a consideration of issues one and two would, in my view, involve the interpretation and application of several and diverse provisions of relevant and or enabling enactments. I intend therefore, from the onset to set out these relevant provisions in relation to issue one and consider same along with the facts in this appeal and resolve issue one, and thereafter, I shall proceed to set out the relevant provisions of the law in relation to issue two and consider same along with the facts in this appeal and resolve issue two.
By Section 46 (1) and (2) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
By Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, it is provided thus:
“Any person who alleges that any of the Fundament Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.”
By paragraph 3 (c) of preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, which is the Rules made pursuant to Section 46 (3) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organizations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: (i) Anyone acting in his own interest; (ii) Anyone acting on behalf of another person; (iii) Anyone acting as a member of, or in the interest of a group or class of persons; (iv) Anyone acting in the public interest; and (v) Association acting in the interest of its members or other individuals or groups.”
By Section 14 of the Interpretation Act, Laws of the Federation of Nigeria, 2004, provides inter alia thus:
“In an enactment – (a) … (b) words in the singular include the plural and words in the plural include the singular.”
I have looked at and considered the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended), particularly in relation to the use of the word ‘any person’ therein and considered the divergent submissions of counsel for the parties on its effect on the joint application filed by the Respondents to challenge the alleged violation of their fundamental right by the Appellant, and I am of the view that in law the use of the word ‘any person, even though expressed in the singular, admits of the plural, and therefore admits of more than one person. Thus, a joint application by more than one person, as in the Respondents, is very competent in law and I so firmly hold. Section 14 of the Interpretation Act 2004. See Udeh V. The State (1999) LPELR-3292(SC), where the Supreme Court had per Iguh JSC, stated inter alia thus:
“It is thus clear, on the application of Section 14(b) of the Interpretation Act, that no violence can be done to the provisions of Section 215 of the Criminal Procedure Act if the word ‘persons’ is read into the word ‘person’ therein used.”
See also Incorporated Trustees of Digital Rights Lawyers Initiative & Ors V. NIMC (2021) LPELR – 55623 (CA); Olumide Babalola V. AGF (2018) LPELR – 43808 (CA).
I therefore, have no difficulty resolving issue one against the Appellant in favor of the Respondents.
My Lords, let me now proceed to consider issue two dealing with the question whether or not the Respondents’ suit as commenced by means of an application for the enforcement of fundamental right pursuant to Chapter IV of the Constitution.
In law, where the principal claim or relief or cause of action is not founded on or for the enforcement of fundamental right as guaranteed by Chapter IV of the Constitution of Nigeria 1999 as amended, then such a claim commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009 is incompetent. See Section 46(1) of the Constitution of Nigeria 1999 (as amended). See also Alhaji Umaru Abba Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA); Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
Now, by Section 251(1) (p), (q) & (r) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
I have also looked at the provisions of Section 153 (1) of the Constitution of Nigeria 1999 (as amended), and the Appellant, INEC, being one of the Federal Commissions in Nigeria and is therefore, undoubtedly, an agency of the Federal Government.
I now come to the issue whether the principal claim of the Respondent and by implication the Respondents’ suit was rendered incompetent having been commenced before the Court below rather than before the Federal High Court by virtue of the combined effects of the provisions of Sections 153 and 251(1) (p), (q) & (r) of the Constitution of Nigeria 1999 (as amended)?
My Lords, there is not a single doubt, in my mind, and the parties are ad idem, on this, that the Appellant, INEC, is one of the Federal Commissions in Nigeria. It is therefore, undoubtedly, an agency of the Federal Government. However, the crucial question is really not whether or not the Appellant is an agency of the Federal Government but whether or not the principal claim, and or the subject matter, of the Respondents’ suit, was within the jurisdiction of the Court below or one within the exclusive jurisdiction of the Federal High Court?
So, what is the principal claim or cause of action of the Respondents over which the Court below assumed jurisdiction, heard, considered and entered judgment in favor of the Respondents against the Appellant? I have taken time to review the reliefs as claimed in the Originating Motion and evaluated the copious affidavit and documentary evidence of the Respondents, which ordinarily should be the documents to look at to determine both their cause of action and the jurisdiction of the Court below, and I find as fact that the Respondents’ cause of action was the failure of the Appellant to facilitate the registration of the Respondents’ association as a political party upon their application to that effect.
Now, in law the jurisdiction to hear and determine any cause of matter, no matter the guise under which it is commenced, but touches on an alleged breach or matters in respect of or relating to the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies as well as in respect of any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies is conferred exclusively on the Federal High Court. So, also any matter or alleged breach that arises from any transaction or subject matter which falls within the exclusive jurisdiction of the Federal High Court as provided by Section 251(1) of the Constitution of Nigeria 1999 (as amended) is conferred on the Federal High Court to the exclusion of all other Courts in Nigeria, including the Court below, being the Federal Capital Territory High Court. See Section 251(1) (q) and (r) of the Constitution of Nigeria 1999 (as amended). See also NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR – 44464 (SC) AT pp. 51 – 54; Alhaji Umaru Abba Tukur V. Government of Gongola State(1989) 4 NWLR (Pt. 117) 517; Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA); Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
I have taken a second calm look at the claims of the Respondent, including both reliefs 1 and 2, and the facts relied upon in support thereof by the Respondents. In my finding, reliefs 1 and 2 represent and are indeed the principal claims of the Respondents against the Appellant, and I have asked myself if these reliefs touch on the executive and or administrative act or decisions of the Appellant, which is undoubtedly an agency of the Federal Government of Nigeria, and therefore, falls under the exclusive jurisdiction of the Federal High Court and thus, outside the jurisdiction of the Court below?
Honestly, looking at and having reviewed and considered the entirety of the affidavit and counter-affidavit and copious documentary evidence of the parties, it seems very clear to me, and I so hold, that the principal claims of the Respondents is, and as was very well understood by both the parties and the Court below, is the act and or decision of the Appellant in refusing to register the Respondents’ association as a political party in the exercise of its reserved prerogative under the proviso to the succinct provision of Section 40 of the Constitution of Nigeria 1999 (as amended).
It is my considered view therefore, and I so firmly hold, that the decision by the Appellant to reject the application by the Respondents to be registered as a political party in Nigeria is purely one of an administrative decision and or action of the Appellant. It is act and or decision over which the question whether it is right or wrong can, in my finding, only be challenged before the appropriate Court as prescribed by Section 251(1) (r) of the Constitution of Nigeria 1999 (as amended), namely: the Federal High Court, and certainly not the Court below, being the Federal Capital Territory High Court, Abuja, and I so hold.
In truth and on the available facts and from the point of law as well, I hold that the action and or decision of the Appellant, pursuant to the exercise of its powers under the law, challenged by the Respondents before the Court below, was assuredly and undoubtedly an administrative action and or decision of the Appellant over which jurisdiction is conferred exclusively on the Federal High Court. See Section 251(1)(r) of the Constitution of Nigeria 1999 (as amended). See also NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR – 44464 (SC) AT pp. 51 – 54.
I therefore, cannot but agree with the apt and unassailable submission of learned counsel for the Appellant, and which represents the correct position of the law, that the Respondents’ suit, is one for declaration and orders of injunction affecting and or challenging the validity of the executive and or administrative action or decision of the Appellant in refusing or failing to register or facilitate the registration of the Respondents’ Association, Africa Youth Democratic Party (AYDP), as a political party. My Lords, I therefore, find the act and or decision of the Appellant being challenged by the Respondents to be one squarely within the ambit of Appellant’s functions and powers and which if it is alleged to have been wrongly exercised, as claimed by the Respondents, ought to be challenged before the Federal High Court as vehemently but rightly contended by the learned counsel for the Appellant and not before the Court below, being the Federal Capital Territory High Court, Abuja as equally vehemently but erroneously contended by the learned counsel for the Respondents. See Sections 222, 223 and 251 (1) (r) of the Constitution of Nigeria 1999 (as amended). See also Sections 78 (1) – (6) and Section 79 of the Electoral Act 2010 (as Amended).
It follows therefore, that the action of the Respondents though commenced ostensibly under the guise of an action for the enforcement of their fundamental right to freedom of association, which they had already exercised by their unhindered formation of the Africa Youth Democratic Party (AYDP), the reliefs, grounds, facts and circumstances relied upon by the Respondents as their cause of action is essentially the refusal or failure of the Appellant to register or facilitate the registration of their association, Africa Youth Democratic Party (AYDP) already formed by them without any let or hindrance form the Appellant.
The Respondents’ cause of action and principal claim, in my finding therefore, is not and cannot be one seeking to enforce the fundamental right of the Respondents against the Appellant but rather one seeking to declare the action and or decision of the Appellant as wrongful and to nullity the refusal and or failure of the Appellant to register their said association as a political party in Nigeria. See Alhaji Umaru Abba Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Mrs. Comfort Alagba Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA); Dr. Okoroma & Anor V. Chief Christain Uba & Ors (1998) LPELR – 6405) (CA).
Thus, whilst in law there is a fundamental right recognized under the Constitution to freedom to association and to form and or belong to any political party yet there is no absolute right of freedom to register a political party. In order words, a citizen cannot without the recognition by way of registration by the Appellant operate a political party. See Section 40 of the Constitution of Nigeria 1999 (as amended), which provides thus:
“Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union and any other association for the protection of his interest:-
Provided the provisions of Section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which the Commission does not accord recognition.”
See also Section 222 and 223 of the Constitution of Nigeria 1999 (as amended); Section 78 and 79 of the Electoral Act 2010 (as amended).
In the above facts and circumstances therefore, I have no difficulty holding that the Respondents’ suit, in which the principal claim challenging the administrative acts and or decision of the Appellant refusing to register the Respondents’ association as a political party in Nigeria is not one for the enforcement of any of the fundamental right of the Respondents as guaranteed under and by virtue of Chapter IV of the Constitution of Nigeria 1999 (as amended).
It follows therefore, the Respondents’ suit as commenced and constituted was not properly before the Court below and was thus incompetent having not been commenced before the proper and appropriate Court, the Federal High Court, which by law has the exclusive jurisdiction over the principal claim, the subject matter, of the Respondents’ suit. Thus, I hold firmly that the Court below lacked the jurisdiction to hear and determine the Respondents’ suit, as it did regrettably without the requisite jurisdiction.
In the circumstances therefore, I hereby resolve issue two in favor of the Appellant against the Respondents.
ISSUES THREE AND FOUR TAKEN TOGETHER
Whether it was competent and/or right for the Court below to grant the reliefs it granted to the Respondents regard being had to the reliefs claimed in the suit and the grounds and facts in support thereof AND on the state of the affidavit evidence before the Court below and upon proper evaluation thereof, whether the Court below was right to have entered judgment for the My Lords, in law, jurisdiction is the life wire and the very soul of every cause or matter before the Courts. A Court is therefore, competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. In Petro Jessica Ltd. V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693, the Supreme Court puts it so succinctly thus:
“Jurisdiction is the very basis on which any Tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity.”
See also Madukolu V. Nkemdilim (1962) All NLR 581. See also Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1.
Having therefore, firmly held that the Respondents’ suit was incompetent and thereby robbed the Court below of its competence and jurisdiction, issues three and four dealing with the merit or otherwise of the claims of the Respondents have become merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See also Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Georgewill JCA; Action Congress v INEC (2007) LPELR – 8988 (CA); Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497.
In the light of the above findings that the Court below has no jurisdiction over the principal claim and subject matter of the Respondents’ suit, and having resolved crucial issue two in favor of the Appellant against the Respondents, I hold that this appeal succeeds and ought to be allowed. Accordingly, I hereby so allow it.
In the result, the judgment of the High Court of the Federal Capital Territory Abuja, Coram: Edward Okpe J, in Suit No. FCT/HC/CV/527/2021: Samuel Olalekan & Ors (For themselves and on behalf of all members of a Political Association known as Africa Youth Democratic Party (AYDP) lodged with the Independent National Electoral Commission as an intending Political Party vide letter dated 30/12/2020) V. Independent National Electoral Commission delivered on 13/7/2021, in which the claims of the Respondents were granted against the Appellant, is hereby set aside.
It is stead, the Respondents’ Suit No. FCT/HC/CV/527/2021: Samuel Olalekan & Ors (For themselves and on behalf of all members of a Political Association known as Africa Youth Democratic Party (AYDP) lodged with the Independent National Electoral Commission as an intending Political Party vide letter dated 30/12/2020) V. Independent National Electoral Commission is hereby struck out for being incompetent.
There shall be no order as to cost
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance, the draft of the judgment delivered by my learned brother, Biobele Abraham Georgewill, JCA.
I agree with my learned brother on the reasoning and conclusions on the Preliminary Objections raised against the hearing of this appeal.
On the main appeal, I am also of the firm view that the suit was wrongly instituted before the trial Court under the Fundamental Right (Enforcement Procedure) Rules. It is the law that, for an action to be sustained under the Fundamental Rights (Enforcement Procedure) Rules (FREP, Rules), the enforcement of a fundamental right must be the principal or main claim of the Applicant. Thus, where the enforcement of a fundamental right is merely incidental or ancillary to the main claim, the action will be incompetent and consequently struck out. See Alhaji Ibrahim Abdulhamid v. Tolal Akar & Ors (2006) 26 NSCQR (Pt.2) 1429 at 1445; Emeka v. Okoroafor & Ors (2017) 11 NWLR (Pt.1577) 410 and Tukur v. Govt., of Taraba State (1997) 6 NWLR (Pt. 510) 549. Thus, in University of Ilorin & Anor v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751, the Supreme Court held as follows:
“These reliefs sought by the respondent as applicant before the trial Federal High Court centered principally on his expulsion from the University and the urge for his re-admission into the institution. The law in relation to the claim of the Enforcement of Fundamental Right is trite. It is to the effect that, Enforcement of Fundamental Right or securing the enforcement thereof, must form the basis of the applicant’s claim as presented to the Court and not merely as an accessory claim. In other words, where the main or principal claim is not the enforcement or securing the enforcement of Fundamental Rights, jurisdiction of the Court cannot be properly exercised because it will thus be incompetent. … In the present case, the respondent’s application not having been brought in accordance with the requirements of Section 46(1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, it ought not to have been heard and granted by the trial Court not to talk of it being affirmed by the Court below.”
I have carefully read and pondered on the questions posed for determination, the reliefs sought and the affidavits in support of the originating motion filed on the 22/5/2021. It is clear to me that the Respondents’ main or principal claim and the reliefs sought centre on the refusal or failure of the Independent National Electoral Commission (INEC) to register or facilitate the registration of the Respondents’ Association (Africa Youth Democratic Party) as a Political Party. It should be noted that the Appellant (INEC), is one of the Federal Commissions established by Section 153(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). By paragraph C of the Third Schedule to the Constitution, the Appellant has the power to, inter alia; register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly. I am of the view that, once INEC has exercised its powers granted by the Constitution, its decision thereon, cannot be the subject of a Fundamental Rights litigation as recognised under Section 46 of the said Constitution. Such decision can only be challenged by a Writ of Summons or other appropriate originating process but not by way of the Fundamental Rights (Enforcement Procedure) Rules.
Considering that INEC is a Federal Agency, any of its administrative decisions can only be challenged before the Federal High Court by virtue of Section 251(1)(p) of the Constitution. Since the principal or main claim of the Respondents relate to the refusal of the Appellant to register their Association as a political party, it was a challenge to the administrative decision of the Appellant. Such challenge could only be validly instituted in the Federal High Court. I therefore agree with the finding of my learned brother, that the Federal Capital Territory High Court lacked the jurisdiction to hear and determine the claim as constituted.
It is for the above reasons and the detailed reasons ably captured in the lead judgment, that I agreed that the Respondents’ suit as commenced and constituted was incompetent. The F.C.T. High Court lacked jurisdiction to hear and determine the suit. It is accordingly struck out.
ISAH BATURE GAFAI, J.C.A.: I have had a preview of the judgment just delivered by learned brother Georgewill, JGA. I am in full agreement with the lucid reasonings expressed by my Lord and subscribe to the conclusions arrived at on this appeal.
As my Lord rightly observed, any judicial exercise by a Court of law without requisite jurisdiction can not confer any value on the parties or on the Court itself because the entire exercise is in law a nullity. The reliefs which the Respondents laboriously secured against the Appellant are not sustainable being a product of a null exercise. The judgment in the suit is thus liable to be and is hereby set aside by me too.
Appearances:
M. I. Abubakar, Esq., with him, Eucharia Ezeani, Esq. For Appellant(s)
Jude Daniel Odi, Esq. For Respondent(s)
