JOHN EGESI & ORS v. PEOPLES DEMOCRATIC PARTY & ORS
(2014)LCN/6817(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of February, 2014
CA/E/433/2012
RATIO
WHETHER MANDATORY PROVISIONS IN RULES OF COURT CAN BE PERMISSIVE OR DISCRETIONARY
. This is because it is now trite law that whereas mandatory provisions in statutes are generally sacrosanct, must be complied with and do not admit of discretionary or permissive compliance, mandatory words or provisions in Rules of Court are generally treated as permissive or directory and allow for discretionary enforcement. See the decisions of the Supreme Court in KATTTO v. CBN (1991) 9 NWLR (PT.214) 126 AT 147 HELD “4” OBI V. INEC (2009) 1-2 SC 23 AT 31 AND OLOBA V. AKEREJA (1988) 3 NWLR (PT.84) 508 AT 528 AND THE DECISIONS OF THIS COURT IN UGWU & ORS V. PDP & ORS (UNREPORTED DECISION OF THIS COURT IN CA/E/259/2012 DELIVERED ON 8-3-2013 AND IN OGBUEHI SYLVESTER & ORS V. OHIAKWU & ORS (UNREPORTED DECISION OF THIS COURT IN CA/E/359/2008 DELIVERED ON 17-7-2013). Per EMMANUEL AKOMAYE AGIM, J.C.A.
WHETHER A GROUND OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST
A ground of appeal must relate to the decision appealed against and should complain against the ratio in the decision. It is trite law that a ground of appeal that is not related to the decision or that is based on a suggesto falsi is incompetent and not valid for consideration. See SARAKI & ANOR v. KOTOYE (1992) 11/12 SCNJ 26 where a ground of appeal framed and formulated on the assumption that the Court below had determined an application on the basis of the provisions of S.227 of the Evidence Act, when it did not, was held to be incompetent. Per EMMANUEL AKOMAYE AGIM, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria
Between
1. JOHN EGESI
2. CHIEF EUGEN ENEH
3. PHILIP C. EZE
4. AUSTUS OKECHUKWU
5. BARR. OYIBO CHUKWU
(FOR THEMSELVES AND ON BEHALF OF PEOPLES DEMOCRATIC PARTY (PDP) ENUGU STATE CHAPTER)Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. SENATOR IKE EKWEREMADU
4. HON. OGBUEFI OZOMGBACHI
5. HON. TOBY OKECHUKWURespondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 8th March 2011, the Appellants herein, as Plaintiffs, commenced suit No.FHC/EN/CS/73/2011 against the Respondents herein as Defendants, claiming for-
1. An Order of Declaration that the first plaintiff is the person and no other entitled to have respective name submitted by the first defendant to the second defendant as the Senatorial candidate of the PDP in Enugu West, Senatorial district in the 2011 general elections.
2. An Order of Injunction restraining, forbidding, precluding and/or prohibiting the 1st defendant from submitting any names other than the name of the 1st plaintiff for the said election and the 2nd defendant from recognizing, dealing with or acting on any list of names other than as stated above.
3. An Order of declaration that the 2nd and 3rd plaintiffs are the persons and no other entitled to have their names submitted by the 1st Defendant to the 2nd defendant as the candidates for the National Assembly/House of Representatives Constituencies of Aninri/Awgu/Oji River and Ezeagu/Udi respectively in Enugu State in the 2011 general elections.
4. An Order of injunction restraining forbidding, precluding and or prohibiting the 1st defendant from submitting any other names than the names of 2nd and 3rd plaintiffs for the said elections and the 2nd defendant from recognizing, dealing with or acting on any list of names other than as stated in (3) above.
5. An Order of declaration that pursuant to Section 87(1)(2)(4) for the Electoral Act, 2010, the plaintiffs are the persons entitled to contest on the platform and be sponsored by the 1st Defendant as the candidate of the 1st Defendant in the April, 2011, general elections in Enugu State.
6. An Order of perpetual injunction pursuant to Section 87 of the Electoral Act, 2010, restraining the defendants, their servants, agents and or officers from adopting fielding, sponsoring, dealing with and or recognizing any other candidates except the plaintiffs for the relevant elections in April 2011 in Enugu State.
The writ of summons commencing the suit was accompanied by a statement of claim (subsequently amended), witness’ statements on oath and other documents. The 1st defendant, on 16th March 2011, filed a memorandum of conditional appearance and a Motion on Notice for an order, inter alia, dismissing the suit in limine on the grounds that the plaintiffs lack the locus standi to complain that the 1st defendant breached the provisions of the 2010 Electoral Act in the nomination of its candidates for the general election to the Senate seat and House of Representatives seats in question, the suit is academic and devoid of life issues and that the suit is bad for misjoinder of causes.
The 2nd set of defendants, who were not defendants at the commencement of the suit, but were later joined as defendants filed a joint statement of defence accompanied by witness statements on oath and other documents. On the 28th February 2012, the 2nd set of defendants filed a motion on notice praying for, inter alia, an order striking out the suit for lack of jurisdiction on the grounds that the issue in dispute in the suit is within the exclusive domestic domain of the 1st defendant and is non-justiciable. After considering the arguments of counsel for both sides, the trial court rendered its ruling on 20th July 2012, upholding the objection for the sole reason that it has no jurisdiction to entertain the suit because it seeks the determination of the question of which as between the primary elections of 5th and 6th January 2011 that produced the 1st to 3rd plaintiffs as the 1st defendant’s candidate for the elections in question and the primary elections of 11th January 2011 that produced the 3rd to 5th defendants as such candidates is the valid primary elections of the 1st defendant for the nomination of its candidates for the 9th April 2011 general election in the respective Constituencies in question, and accordingly struck out the suit.
Dissatisfied with this decision, the plaintiffs on 17-10-2012 commenced this appeal No.CA/E/433/2012 by filing a notice of appeal containing 4 grounds of appeal. The parties to this appeal have filed, exchanged and adopted their briefs of argument in this appeal, which consist of the appellants’ brief of argument, 3rd – 5th respondents’ brief of argument and the appellants’ reply brief.
In their brief, the appellants raised the following issues for determination-
1. Whether the lower court was right to have brushed aside the mandatory requirements of Order 29 of the Federal High Court Civil Procedure Rules and to proceed to take the application of the 3rd – 5th respondents in limine (Ground 1)
2. Whether the lower court was right when it decided to consider extraneous matters outside the statement of claim to decide the issue of jurisdiction over the subject matter of the suit (Ground 2 & 4)
3. Whether the lower court was right in holding that the Supreme Court decision in LADO V. CPC applied to the facts and circumstances of this case (Ground 3)
The 3rd-5th respondents in their brief raised the following issues for determination-
1. Whether the trial court was right when after granting the motion for extension of time filed by the 3rd – 5th respondents seeking leave to raise the issue of jurisdiction outside the period stated in Order 29 Rule 4(a) of the Federal High Court Civil Procedure Rules 2009, it heard the application to strike out the suit before the hearing of the substantive suit.
2. Whether the trial court in its ruling considered extraneous matters not relevant in the determination of the application to strike out the Suit.
3. Whether the trial court was right when it relied on the Supreme Court case of Senator YAKUBU GARBA & ORS. V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS. (2011) 18 NWLR (PT.1279) 689 in striking out the suit.
I prefer to decide this appeal on the basis of the issues framed by the appellants.
Let me start with issue No. 1. I have observed that issue No 1 of the appellant’s brief and the first ground of this appeal which it stated to be derived from, contain different complains against the ruling of the trial court. For ease of reference I will reproduce the said ground and issue. Ground 1 complains that “the Learned Trial Judge erred in law when he held that it could determine the objection to jurisdiction in limine when same was filed outside the time limited by the Rules of Court for bringing such objection in limine.
PARTICULARS
(a) By virtue of Order 29 of the extant Federal High Court (Civil Procedure) Rules 2009, once an objection of jurisdiction is not taken within 21 days of service, it can only be taken along with the substantive suit.
(b) Rules of Court must prima facie be obeyed and complied with issue No.1 of the appellant’s brief questions “whether the lower court was right to have brushed aside the mandatory requirements of Order 29 of the Federal High Court (Civil Procedure) Rules and to proceed to take the application of the 3rd-5th respondents in limine, while the ground complains about the holding of the trial court that it could determine the objection to jurisdiction in limine even though it was filed out of the 21 days period allowed for the filing of such objection.
It is clear from the ground that the trial court considered the provisions of Order 29 of the High Court (Civil Procedure) Rules and whether the application can be heard and determined in limine in spite of the fact that it was made over 21 days after service of the originating process on the defendants.
Issue No. 1 which derives from the said ground 1 alleges that the trial court ignored or dismissed the mandatory requirements of Order 29 and proceeded with the application. A matter that the trial court considered and decided on cannot be said to have been brushed aside (ignored or dismissed). So the complain that the court brushed it aside is inconsistent with the allegation that the court considered and decided it. The issue as framed is clearly not consistent with ground 1 of this appeal.
However the arguments under the said issue are consistent with the complain in the said ground. The arguments are not congruent with the issue as couched, which issue by its inconsistency with ground 1 from which it purports to derive, is incompetent. So as it is, the issue cannot form the basis of the said arguments. Ordinarily, that should have rendered such argument incompetent, because arguments in appeals in this Court must be based on issues raised for determination and not the grounds of appeal. In the interest of substantial justice I will countenance the arguments and determine the merit of the issues argued in them.
Before I consider the said argument, let me observe that the said ground 1 of this appeal is based on a suggestio falsi because the event alleged therein as constituting the alleged error of law are not supported by the record of this appeal. The event alleged is that the trial court “held that it could determine the objection to jurisdiction in limine when same was filed outside the time limited by the Rules of Court for bringing such objection in limine.” What is alleged in this ground does not represent the proceedings at the trial court. The record of appeal shows that there were two specific prayers in the 2nd and 3rd defendants’ motion on notice that raised the objection to the jurisdiction of the trial court to entertain the suit. The first specific prayer was for leave to bring the application objecting to the jurisdiction of the trial court outside the 21 days stipulated by Order 29 Rule 4 of the Federal High Court (Civil Procedure) Rules. The second specific prayer was for an order striking out the suit for lack of jurisdiction. Counsel to both sides addressed the trial court on the application and how Order 29 of the Federal High Court (Civil Procedure) Rules should be applied by the trial court. The trial court considered the arguments of both sides and the two specific prayers, one after another. It first considered and held that it can under the said Order 29 extend the time allowed by Rule 4 therein for bringing such application. It ordered an extension of the time allowed by the rules for bringing the application.
After it determined the first prayer, it then proceeded to consider the application for the 2nd prayer. It found the application meritorious and then struck out the suit for lack of jurisdiction. So the trial court did not just hold that it could determine the objection in limine without regard to the fact that it was filed out of time. The trial court considered that it was filed out of time and clearly accepted that such an application can only be brought within 21 days after service of the originating processes on the defendant. It considered and held that the said time can be extended. So the proper complain should have been against the extension of time and not the determination of the objection limine. The extension of the time for bringing the objection cleared the way for the determination of the objection.
A ground of appeal must relate to the decision appealed against and should complain against the ratio in the decision. It is trite law that a ground of appeal that is not related to the decision or that is based on a suggesto falsi is incompetent and not valid for consideration. See SARAKI & ANOR v. KOTOYE (1992) 11/12 SCNJ 26 where a ground of appeal framed and formulated on the assumption that the Court below had determined an application on the basis of the provisions of S.227 of the Evidence Act, when it did not, was held to be incompetent.
I have also noticed that there is no ground of this appeal complaining against the extension of time to object to the jurisdiction of the trial court. Therefore there is no appeal against the decision extending the time to so object. The legal consequence of the absence of an appeal against the decision extending time is that the parties to the suit have accepted the decision as correct and binding upon them.
In the absence of an appeal against the decision extending the time stipulated by Order 29 Rules 4 and 5 of the Federal High Court (Civil Procedure) Rules for objecting to the jurisdiction of the trial court, can a complain that the trial court “erred in law when it held that it could determine the objection to jurisdiction in limine when the same was filed outside the time stipulated by the Rules of Court for bringing such application,” be valid? In other words is ground 1 of this appeal arguable against the background of the extension of time to make the objection and the absence of an appeal against the decision extending the time? I do not think so. This is because the time to make the objection having been extended, the objection and its determination is no longer out of time. The objection was by virtue of the extension of time heard and allowed by the rules. Ground 1 of this appeal is not arguable and therefore cannot sustain any valid issue or argument in this appeal. The arguments of learned counsel for the appellants in respect of the complain in ground 1 of this appeal focused on challenging the decision extending the time to object. He argued that –
1. The reason given by the trial court for extending the time to make the objection is no justification for the court to deliberately set aside the Rules of Court.
2. The trial court was wrong to have entertained the application when it was filed outside the time limit allowed by the rules of the trial court.
3. There is no room for extension of time under the provision of the said Order 29.
4. Order 29 Federal High Court (Civil Procedure) Rules is categorical that once an application is not brought within 21 days, it can only be brought at the end of the suit and nothing more.
These arguments are not valid for consideration in the absence of an appeal against the decision extending the time for the objection to jurisdiction. It is trite law that a party who has not appealed against a decision of court, cannot be heard to argue against it on appeal. See YALAJU-AMAYE V. ASSOCIATED REGISTERED ENGINEERING CONTRACTOR LTD & ORS (1990) 6 SCNJ 62.
In any case, as rightly submitted by Learned Counsel for the 3rd to 5th respondents, Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules provides that “the Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by any Judgment or Order of the Court, extend or adjourn the time for doing any act or taking any proceeding.” There is nothing in Order 29 or any other part of the Federal High Court (Civil Procedure) Rules precluding the trial Court from exercising the power given it under Order 48 Rule 4 to extend the time stipulated under Order 29 Rules 4 and 5 of the same Rules for bringing an objection to the jurisdiction of the trial Court to entertain a suit. I do not agree with the submission of Learned Counsel for the appellant that Order 29 Rule 5 therein expressly prohibits an application for the extension of the time prescribed in the preceding Rule 4 by providing that “if the Defendant files an acknowledgment of service and does not make such application within the period specified in Rule 4 of this Order, any such application can only be taken at the conclusion of trial.” There is no doubt that it prescribes when an objection to jurisdiction can be brought in the course of the proceedings, if it is not brought within 21 days after the service of the originating process on the defendant. The said rule 4 merely prescribes the alternative times for bringing the objection and thereby provides for the regulation of the time for hearing of such objections to avoid the indiscriminate use of frivolous objections to jurisdiction to frustrate the due and expeditious trial of cases by the trial court. It is strictly a procedural prescription and did not prescribe the legal consequences of a failure to comply with Order 29 Rules 4 and 5. There is nothing therein curtailing or taking away the discretion of the trial court under Order 48 Rule 4 to decide to allow anything to be done outside the time stipulated in the Rules or an Order of court for doing anything or the discretion of the trial court under Order 51 of the same Rules to treat any non-compliance with any provision of the Rules as an irregularity and thereby condoning it as not nullifying the proceedings or any decision therein.
The mandatory nature of the provisions of Order 29 without more cannot take away the discretion given to the Court under Order 48 Rule 4, and Order 51. This is because it is now trite law that whereas mandatory provisions in statutes are generally sacrosanct, must be complied with and do not admit of discretionary or permissive compliance, mandatory words or provisions in Rules of Court are generally treated as permissive or directory and allow for discretionary enforcement. See the decisions of the Supreme Court in KATTTO v. CBN (1991) 9 NWLR (PT.214) 126 AT 147 HELD “4” OBI V. INEC (2009) 1-2 SC 23 AT 31 AND OLOBA V. AKEREJA (1988) 3 NWLR (PT.84) 508 AT 528 AND THE DECISIONS OF THIS COURT IN UGWU & ORS V. PDP & ORS (UNREPORTED DECISION OF THIS COURT IN CA/E/259/2012 DELIVERED ON 8-3-2013 AND IN OGBUEHI SYLVESTER & ORS V. OHIAKWU & ORS (UNREPORTED DECISION OF THIS COURT IN CA/E/359/2008 DELIVERED ON 17-7-2013).
Finally, I do not think that ground 1 of this appeal, issue No 1 of the appellant’s brief that is purported to derive therefrom and the arguments of same will serve any useful purpose even if they were competent and or valid in view of the decision of the trial court that it lacks the jurisdiction to entertain the central issue in controversy in the suit and the entire suit. Where a court has determined that it has no jurisdiction to entertain the subject matter of a case, it will be idle to contend that the procedure for reaching that decision was not followed and the decision be set aside. In the face of such overriding and fundamental determination that the court lacks subject matter jurisdiction, it will be more useful to devote attention to the merit of the decision than the procedure for arriving at the decision, especially as the appellant has not shown or even alleged that he suffered any injustice by the failure of the trial court to determine the objection to jurisdiction along with the whole case. For all of the above I reasons I hold that ground 1 of this appeal and issue No. 1 of the appellant’s brief as well as the arguments thereunder are unarguable and incompetent.
Let me now consider issue No. 2 of the appellant’s brief of argument. Under this issue, learned counsel for the appellants argued that the trial court cannot go outside the writ of summons and the statement of claim to determine if it has jurisdiction to entertain the suit and that the trial court got it all wrong by relying on both the statement of claim of the plaintiff and the 3rd to 5th respondents’ statement of defence to determine if it has jurisdiction to entertain the suit. According to learned counsel for the appellant the trial court fused the statement of claim with the 3rd-5th respondents’ statement of defence to arrive at the conclusion that the issue before it was which of two primaries was the valid primaries that produced the 1st respondent’s candidates for the National Assembly elections in the respective constituencies. He further submitted that the writ of summons and statement of claim did not allege the holding of more than one primary, which is the one won by the 1st-3rd Appellants, that they were declared winners of the said primary and the 1st respondent forwarded their names to the 2nd respondent as its nominated candidates for the National Assembly Elections in the respective constituencies and the 2nd respondent accepted and published their names as such candidates.
Learned Counsel for the appellant reproduced inter alia paragraph 11 of the amended statement of claim that “the 3rd – 5th respondents falsely claim to be the nominated candidates of the 1st defendant/respondent for the applicants’ respective constituencies and claim to have been elected by that virtue into the National Assembly for those constituencies. They presently occupy the applicants’ seats and were joined by the order of court, as persons who claim to have an interest in the subject matter of the plaintiffs claim and as having contested the 1st defendant’s primary election with the plaintiffs.”
According to learned counsel to the appellants, the fact of the holding of two primaries was introduced by the statement of defence of the 3rd – 5th respondents and is therefore “not material and relevant for the purpose of deciding whether the lower court had jurisdiction to entertain the suit or not.” He submitted finally that “the case as submitted to the lower court for adjudication fell squarely within the jurisdiction of the lower court as spelt out in S.87(9) of the Electoral Act 2010” and that the trial court erred in holding that it had no jurisdiction to entertain the Suit.
Learned counsel for the 3rd to 5th respondents has argued that it is not correct that the fact of the holding of two primaries was not put in issue in the amended statement of claim and that the facts pleaded therein showed that-
(i) there were two factions of the 1st respondent in Enugu State, each led by a different State Executive Committee
(ii) each faction nominated 1st respondent’s candidates for the general election, the 1st – 3rd appellants being nominated by the faction led by the 4th and 5th appellants and the 3rd – 5th respondents nominated by the Engr. Vita Abba faction.
According to learned counsel, it was in view of the existence of the two rival set of candidates that the appellants seek by their claims that it be declared that 1st – 3rd appellants and no other persons are entitled to have their names submitted to the 2nd respondent as the 1st respondent’s candidate for the general election. Learned counsel for the 3rd – 5th respondents further submitted that it is no longer an absolute statement of the law that in the determination of an application to strike out a case for lack of jurisdiction, the court should only look at the writ of summons and the statement of claim. He acknowledged that the general principle is that the court should consider only the statement of claim and went on to submit that, where however there are materials before the court which will enable the court properly decide the objection, the court should consider those materials especially where those materials are not controversial or have been admitted as facts in issue. He also submitted that an application challenging the jurisdiction of a court can be brought by different procedures or ways, and that in considering such an application the court is bound to look at the statement of claim and the affidavit in support and the counter-affidavit if any was filed. According to Learned Counsel the trial court was right to have relied also on the affidavit in support of the application to strike out the suit for lack of jurisdiction, because the facts in the affidavit are a repetition of the facts in the amended statement of claim and 3rd to 5th respondents’ statement of defence and they were not denied by the appellants at the trial court.
Let me straightaway deal with the question of whether the amended statement of claim of the appellants alleged the holding of parallel primaries. Order 13 Rule 4(4) of the Federal High Court (Civil Procedure) Rules 2009 prescribes how facts are to be alleged in pleadings. It states that “the facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement.” I have calmly and carefully read the amended statement of claim to find out if it alleged in any of its paragraphs, positively, precisely and distinctly and as briefly as is consistent with a clear statement that two primary elections were held on the 6th of January 2011 and on 11th January 2011, and that while the first one produced 1st – 3rd appellants as candidates, the second one produced the 3rd to 5th respondents as candidates of the 1st respondent for the general election to the Senate seat for Enugu West Senatorial Zone and the House of Representatives seats for Aninri/Awgu/Oji River Federal Constituency and Ezeagu/Udi Federal Constituency respectively? I am unable to find any paragraph of the amended statement of claim alleging this fact. Learned Counsel for the respondents was right in his submission that the said amended statement of claim alleged the existence for the said factions. There is no doubt as the learned counsel for the 3rd to 5th respondents appear to suggest by his submission, that the averment in paragraph 11 of the amended statement of claim that the 3rd – 5th respondents falsely claim to have been nominated as the 1st Respondent’s candidates for the said elections and alleged to have been elected to the respective National Assembly seats for the respective constituencies which they currently occupy and the reliefs sought for in paragraph 32 of the amended statement of claim give rise to the impression or assumption that some other primary elections may have held producing the 3rd and 5th respondents as 1st respondent’s candidates for election to the same offices. But there is no positive, clear and distinct allegation of that fact. I therefore hold that the amended statement of claim did not allege the holding of two primary elections for the nomination of the 1st respondent’s candidates for the same National Assembly seats for the same constituencies for the 9th April 2011 election. There is no dispute that it was the 3rd – 5th ignore in their statement of defence that alleged the holding of two primaries. They aver in paragraph 31 therein that the primary elections initially scheduled to hold on 6th January 2011 did not hold and was rescheduled to the 10th, 11th and 12 January 2011. In paragraphs 32 and 33 of their Statement of Defence they stated that the primary for the nomination of the 1st respondent’s candidate for the National Assembly election was conducted by the Chief Ebenezer Babatope led National Electoral Panel. In paragraph 35 of their said statement they also averred that – “Following the successful conduct of the primaries, the names of the defendants and the other successful candidates were forwarded to the National Headquarters of the 1st defendant. On 27th January 2011, the 1st defendant by a letter dated 24th January 2011, submitted the names of the elected candidates of the party in Enugu State for the various elective officers and positions in the April 2011 general elections to the 2nd defendant. The defendants will at the trial rely on the said letter.”
In paragraph 36 of their statement of defence they averred further that “the 1st to 3rd plaintiffs have continued to falsely claim that they were elected at various primaries organised by the 4th and 5th plaintiffs.”
It is obvious from the ruling of the trial court that it relied on the amended statement of claim, the statement of defence and the affidavit in support of the application to strike out the suit for lack of jurisdiction in deciding that it has no jurisdiction to entertain the suit. I will now consider the arguments of Counsel above on whether the trial court was right to have done so.
The statement of this court in UCHENNA UGWU & ORS V. PDP & ORS (supra) cited and reproduced in the 3rd – 5th respondents’ brief of argument sufficiently answers the question, whether the trial court was right to have relied also on the statement of defence and the affidavit in support of the said application to determine if it had the jurisdiction to entertain and determine the issue that both parties joined by their pleadings, namely who as between the 1st to 3rd plaintiffs on one hand and the 3rd to 5th respondents on the other were validly nominated as the 1st respondent’s candidate for the 9th April 2011 election into the respective National Assembly seats for the above mentioned constituencies, the determination of which question, is dependent on the determination of the question of which as between the 6th January 2011 primary elections that produced the 1st – 3rd appellants and the 11th January primary election that produced the 3rd – 5th respondents is the valid and authentic primary election of the 1st respondent for the nomination of its candidates for the 9th April 2011 elections to the offices in question. This court said “that the general principle that an issue of jurisdiction has to be decided on the basis of the originating processes and nothing more is, as learned senior advocate for the 1st respondent has submitted, not immutable and absolute. The important consideration is whether there is a feature in the case showing that the Court lacks the jurisdiction to entertain and determine the matter. In some situations this feature may not be obvious from the terms of the originating process because the claims and the facts grounding the claim as couched do not exhibit any feature that robs the court of jurisdiction. At a subsequent stage in the case such a feature would become disclosed by the statement of defence or counter-affidavit, affidavit in support of the originating summons or during viva voce evidence or during final addresses. In some situations the feature may have existed right from the beginning but nobody drew attention to it until at a later stage of the case, sometime at the appeal stage. In all these situations, where other materials have been placed before the court disclosing such a feature, it would not be right to argue that the court cannot rely on those materials. The absurdity in this kind of argument is that so far as the originating process does not exhibit a feature that robs the Court of jurisdiction the Court can validly exercise jurisdiction, even if such feature later emerge. The correct position is that such an objection can be raised at any time on the basis of any material in any process before the Court that shows that there is a feature that robs the Court of its jurisdiction to entertain a determine the case.”
In addition to this statement of legal principle, Order 29 Rule 4 of the Federal High Court (Civil Procedure) Rules under which the application was brought and Order 16 Rules 2 and 3 of the same Rules support the approach of the trial court in the determination of the objection to its jurisdiction. The application that resulted in the ruling of the trial court was brought pursuant to Order 29 of the said Rules.
Rule 4 therein requires that an application by a defendant for a declaration that the trial court has no jurisdiction to entertain the suit shall be supported by affidavit where it is not based on ground of law alone. It is obvious from the pleadings of both parties, the application and the supporting affidavit, that the objection is not based on ground of law alone, as it involves the determination of some primary question of fact as to whether there were two primaries which held on different dates producing two different set of candidates. In a similar situation in UGWU & ORS V. PDP & ORS (supra), this court held that “The trial court’s reliance on the affidavit in support of the motion raising the objection to jurisdiction is not only supported by legal principle, it is also supported by Order 29 Rule 4 Federal High Court (Civil Procedure) Rules under which it was brought. It is prescribed therein that the objection shall be by an application by way of motion on notice supported by an affidavit if it is not based on ground of law alone. It is trite that an affidavit in support of a motion contains facts supporting the prayers sought on the motion paper and the grounds for such prayers. It is obvious that by requiring that the application be supported by an affidavit it is the intendment of that provision that the affidavit shall be relied on for the objection though not exclusively.”
In LADO & ORS V. CPC & ORS (2011) 18 NWLR (PT.1279) 689 the Supreme Court per Onnoghen J.S.C held that- “while it is settled law that it is the claim of plaintiff as evidenced in the writ of summons and statement of claim that determines the jurisdiction of the court, where however from the totality of pleadings of both parties and the evidence adduced to establish same it becomes obvious that the court has no jurisdiction with regards to the subject matter of dispute or the claim, in reality cannot come within the statutory jurisdiction of the court. The court will take into account the totality of facts pleaded and evidence adduced to establish same in determining whether the court has jurisdiction or not. The question becomes, from the issues joined in the pleadings does the court have jurisdiction. (underlining are mine for emphasis)”.
The 3rd-5th respondents had in paragraph 44 of their statement of defence stated that they “shall before or at the trial contend that the Honourable court lacks jurisdiction to hear and determine this case as the subject matter of the suit is not justiciable” and thereby raised a point of law that is capable of disposing of the entire Suit. They are entitled to raise this point of law in their statement of defence by virtue of Order 16 Rule 2 of the Federal High court (Civil Procedure) Rules 2009 which provides that a party shall be entitled to raise by his pleadings any Point of Law. The 3rd-5th Respondents had indicated in the said paragraph 44 of their statement of defence that they shall before or at the trial contend that the court lacks jurisdiction. After raising this point of law in their statement of defence filed on 27-2-2012, the 3rd – 5th defendants on the 28-2-2012 filed their motion on notice praying the trial court to inter alia strike out this suit for lack of jurisdiction. By this application the said Respondents invited the trial court to determine the point of law already raised and strike out the suit on the basis of that determination.
By Order 16 Rule 2, (2), a point of law so raised may on the application of either party, be set down for hearing and disposed of at any time before the trial. Order 16 Rule 3 provides that- “If, in the opinion of the Court or a Judge in Chambers the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge in Chambers may thereupon dismiss the action or make such other order therein as may be just.”
Although the 3rd – 5th respondents stated expressly in their motion on notice that they are making their application under Order 29, Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and S.87(a)(c)(ii) and (9) of the 2010 Electoral Act, I think that Order 16 of the said Federal High Court Rules equally applies to their application since they have also adopted the procedure prescribed in Order 16 Rule 2(1) by raising the point of law in their pleading and later having same determined upon an application. There is nothing in the said Order 16 requiring that the materials upon which the determination of such point of law shall be based, must be only the originating process or the statement of claim, as the case may be and nothing more. The rule that such objection be determined on the basis of the originating process and the statement of claim applies only to demurrer. Order 16 Rule 1 has abolished the procedure of demurrer and replaced it with a procedure (called proceedings in lieu of demurrer) that permits the defendant to raise the point of law in his statement of defence and enables the trial court to make a determination affecting the entire suit or any pleading therein. I think that under Order 16 of the Rules particularly Rule 3 therein the defendant can raise the point of law on the basis of both the facts alleged in the statement of claim and the facts alleged in the statement of defence. According to Fidelis Nwadialo (SAN) in his book Civil Procedure in Nigeria page 424, “This procedure, unlike demurrer, is available to either party. The plaintiff may challenge the statement of defence on any legal grounds under it, while a defendant may in the same way, attack the statement of claim. Also, its application envisages that the statement of claim and the statement of defence must have been filed. It is in any of these pleadings that a party may raise the point of law.
Under the Procedure (that is Order 24U or Order 23L) also, except in the case of its rule 4, a defendant is not taken as admitting the facts pleaded in the statement of claim. The Court will not act unless the defendant is able to show that on the facts pleaded by the plaintiff and admitted by him, if there is any, the claim cannot succeed.”
Order 16 Rules 2 and 3 requires that pleadings would have been filed and completed by both parties and issues joined. It is the issue of law joined that is to be tried and disposed of. See FADARE & ORS V. A-G OYO STATE (1982) 4 SC 1, where the Supreme court per Nnamani, J.S.C made this restatement in respect of similar provisions in Order 22 of the then High Court Civil Procedure Rules of Western Nigeria. For the above reasons, I hold that the trial court was right to have relied also on the affidavit in support of the application to strike out the suit for lack of jurisdiction and the 3rd to 5th respondents’ statement of defence to determine if it has jurisdiction to entertain the central issue joined in the pleadings and to entertain and determine the entire suit.
Let me now consider the submission of learned counsel for the appellants that their case as contained in the writ of summons and statement of claim, without reference to the statement of defence, fell squarely within the jurisdiction of the trial court as prescribed in S.87(9) of the Electoral Act 2010. The question that arises from this submission is whether the case of the appellant as contained in the statement of claim fell within the jurisdiction of the trial court created by S.87 (9) of the Electoral Act. When the suit was commenced, and before the amendment that introduced paragraph 11 of the amended statement of claim, the case put forth by the appellants in the initial statement of claim, was that, in the 2nd respondent’s primary election of its candidates for the 9th April 2011 general election to certain National Assembly seats for certain constituencies hereinbefore mentioned, they scored the highest votes and the 1st respondent declared them winners of the said primaries and forwarded their names to the 2nd respondent as its candidates for the said elections and the 2nd respondent accepted their names and published same as 1st respondent’s candidates for the said election. On the basis of these alleged facts, the appellants claimed for the reliefs reproduced in the amended statement of claim.
There was no allegation in the initial statement of claim that the appellants’ names were withdrawn or substituted with other names after the 2nd respondent had accepted and published same. There was no allegation in the initial statement of claim that some persons other than the appellants had been nominated or selected as the 2nd respondent’s candidates in the said election contrary to the electoral guidelines of the 2nd respondent and the 2010 Electoral Act. Therefore the condition precedent to the invocation of the jurisdiction vested in the High Court by S.87(9) of the 2010 Electoral Act did not exist in the initial statement of claim. The only right of action an aspirant has under S.87(9) of the Electoral Act, is the right to complain that some provisions of the Act and the guidelines of his political party has not been complied with in the selection or nomination of a candidate of the political party for the general election. This right can only exist where a cause for the action exists. The cause consists of the non compliance with the provisions of the Electoral Act and political party guidelines in the nomination or selection of another person as the candidate of the party for the general election. An aspirant who won his party’s primaries, whose name has been forwarded by his party as its candidate for an election to INEC and whose name was accepted and published by INEC as such candidate and who has not alleged that the name was withdrawn and replaced with another name, has no right of action under S.87(9) of the 2010 Electoral Act. He has no cause for any action under that provision. So the case of the Appellants as contained in the initial statement of claim at the commencement of the suit did not fall within the jurisdiction of the High Courts as prescribed by S.87(9) of the Electoral Act.
The next question that follows is whether the amendment of the statement of claim brought the case of the Appellants within the jurisdiction vested in the High Courts by S.87(9) of the Electoral Act. The statement of claim was amended in only one respect, namely, the introduction of the facts averred in paragraph 11 of the amended statement of claim. It states essentially that the 3rd to 5th respondents falsely claim to have been nominated as the 2nd respondent’s candidates for the election that they claim to have been elected and are now occupying the respective seats in the National Assembly for the above mentioned constituencies. This Amendment clearly took the case out of the jurisdiction of the High Court as vested by S.87 (9) of the Electoral Act. It is obvious that the elections held in April 2011 and that the 3rd to 5th respondents who claim to have been elected are really occupying the National Assembly seats as the successful candidates of the 2nd respondent in the general election. A complain by an aspirant that even though he won the primary election and his name was forwarded to INEC which accepted and published same as the candidate for the election, another person rather contested the very election as the 2nd respondent’s candidate and is now elected and is now occupying the very National Assembly seat he was aspiring to, does not constitute a cause of action under S.87 (9) of the Electoral Act. Once the election the aspirant was to contest has been contested without him and won by another person, I do not think that he still has a right of action under S.87(9) of the Electoral Act. Any right of action he may have had before the election becomes spent and expired with the holding of the election. The complain that the person elected in the general election to an office was not nominated as his party’s candidate for the election in breach the Electoral Act and of his party’s guidelines can no longer lie or be entertained by the High Court in exercise of its jurisdiction under S.87 (9) 2010 Electoral Act. It is glaring from the tenor of the 2010 Electoral Act particularly Ss 31-41, that it intends that all matters relating to the nomination of candidates of political parties for an election must be concluded well before the holding of the general elections. See the unreported decision of this court in NOBIA – ELENDU V. INEC & ORS (delivered on 3-2-2014) in which it held that “It is obvious that with the holding of the election of 9th April 2011, the question of who should be or should have been the candidate of the 2nd respondent in that election is no longer relevant. The holding of that election presupposes that the matter of nomination of a political party’s candidate for the election, the submission of the name by the party to the 1st respondent, publication of the particulars of such candidate in the relevant constituency and any issue connected therewith, publication of the list of candidates standing for the election and all matters connected with the nomination of candidates of political parties for the election have been fully and finally settled and come to a close in accordance with Sections 31 to 41 of the Electoral Act 2010. Therefore, after the holding of the election, it is no longer practicable and possible for a person to ask to be nominated as or be declared the nominated candidate of a political party for an election that has held. The right to be the 2nd respondent’s candidate for the said election expired or became unenforceable upon the holding of that election.”
The holding of the general elections and the election of another person to the same office the complainant aspires to, takes the matter out of the jurisdiction vested in the High Court by S.87(9) of the Electoral Act. The question of who was nominated as the 2nd respondent’s candidate for the election of 9-4-2011 becomes irrelevant and academic after the holding of the election. The Supreme Court in IMEGWU V OKOLOCHA & ORS (2013) 9 NWLR (PT.1359) 347 held that “So even if the DPP wrongly substituted the applicant with the 3rd respondent no Court will order that the applicant was a candidate at the election or was wrongly excluded from the election with a view to nullifying the election won by the candidate of the PDP. The issue of who won the election having been finally decided by the Court of Appeal, it will be a waste of time and resources to grant the application. This court followed this decision in OKOLOCHA VS. INEC & ORS (unreported decision in CA/A/300/2013 delivered on 7-11-2013). For the above reasons I hold that the case of the appellants in the amended statement of claim does not fall squarely within the jurisdiction conferred on the High Court by S.87(9) of the Electoral Act. So that even if the trial court had relied on only the amended statement of claim to determine the objection to its jurisdiction, it would have still come to the same conclusion that it lacks jurisdiction to entertain the suit.
On the whole, Issue No 2 is resolved in favour of the Respondents.
Let me now deal with the third and last Issue of whether the trial court was right in holding that the Supreme court decision in LADO V. CPC applied to the facts and circumstances of this case.
Learned Counsel for the appellant has argued that the trial court wrongly applied the decision of the Supreme Court in LADO V. CPC (supra) to the fact and circumstances of the case before it. He submitted that:
(1) Lado’s case involved two primaries that were consolidated.
(2) In the case before the trial court, the appellants asserted the existence of only one primary election and that after that primary election their names were forwarded to the 2nd Respondent who accepted and published same.
(3) The 3rd and 4th respondents contested the said primary election that held on 5th January 2011 and lost to the 1st Appellant.
(4) The 1st respondent having submitted the 1st-3rd appellant’s names to the 2nd respondent as its candidates for the election, and the 2nd respondent having accepted and published same, the names of the 1st – 3rd appellants cannot be withdrawn or replaced unless the 1st – 3rd appellants or any of them dies or writes withdrawing his candidature.
(5) In this case instant, there was no counter claim or cross-action at the trial court to uphold any other primary election and that this fact distinguishes this case from the Lado’s case. According to Counsel, in the Lado’s case there were actions and cross or counter actions filed to uphold different primaries which led to different appeals being consolidated. Learned counsel then submitted that in this case, there is no action challenging any primary election, the action was filed to uphold the primary election of the 1st respondent and to respect the names forwarded to INEC and duly accepted by it.
(6) This action falls squarely within the ambit of S.87 (9) of the Electoral Act 2010 and the trial court erred in striking out the suit.
(7) In Lado’s case the plaintiffs were seeking to have their names accepted, whereas in this case the names of the 1st to 3rd appellants had been accepted and published.
(8) The facts of this case are totally different from those of the Lado’s case.
(9) The Lado’s case was commenced by originating summons, heard on merits and judgment delivered therein. The instant case was commenced by writ of summons and of statement of claim accompanied by witness’ written statements on oath, the case was not heard on the merits and was struck out in limine.
(10) The LADO V. CPC case did not apply to the facts and circumstances of this case now on appeal.
Learned counsel for the 3rd-5th Respondents started his argument in reply by correctly summarising the facts of Lado’s case thus- “It is the case of the appellants that they validly nominated candidates of the 1st respondent to contest the general election of April into various election position in the National and State Constituencies following a primary election conducted on 5th January, 2011 but that the 1st Respondent refused to forward their names to the 5th respondent as is duly nominated candidates for the said election contrary to the provisions of the relevant statute etc. On the other hand, the 1st – 3rd respondents contend that there was no primary election of the 1st respondent on 15th January, 2011 in which the appellants emerged as nominated candidates of the party; that it was on 13th January 2011 that the primaries of the 1st respondent in Kastina State was conducted and the candidates for the various elective position nominated including the 3rd respondent; that the said primaries of 13th January, 2011 was contested by some of the appellants who lost same and that the names of the duly elected candidates of the party to contest the said general election were duly forwarded to the 5th respondent on 1st January, 2011 by the 1st respondent in compliance with the law.” See page 619 paragraphs E-H of the report.”
Learned counsel then submitted that –
1. The facts of this case are on all fours with the facts in Lado’s case. According to counsel “As in Lado’s case, the appellant claims to have won the primaries conducted by the 4th – 5th appellants (state executive of the party) on 6th July 2011 but that the 1st respondent refused to submit their names to the 2nd respondent. The 3rd-5th respondents also claimed to have won the primary election organized by the Engr. Vita Abba led state executive and conducted by national officers of the 1st respondent which primary election held on 11th January 2011. They also stated that their names were submitted to the 2nd respondent by the 1st respondent.”
2. The Supreme Court in Lado’s case held that the dispute as to which of two primaries validly produced the nominated candidates of a political party for an election is not justiceable under the provisions of S.87(4)(b)(ii) and (10).
3. The trial court was bound to follow the decision of the Supreme Court in Lado’s case
4. It is not the law that the facts of the precedent decision must be completely identical to the facts of the present case. It is sufficient if they are similar and the same principles apply to them.
The question that arises from the above arguments of learned counsel to both sides is when can an already existing judicial authority be applied as precedent by this court to judicially determine an issue in a case pending before it. The correct answer is contained in the restatement of this court in UGWU & ORS V. PDP & ORS (supra) that-
“This Court is bound to follow the previous decisions of the Supreme Court or its previous decisions (until it departs from them) only if:
(i) the question resolved in the precedent case is the same as the question to be resolved in the pending case.
(ii) The resolution of that question was necessary to the determination of the precedent case and the present case depends on the resolution of that question for its determination
(iii) The significant or material facts in the precedent case are also present in the pending case, and
(iv) No additional facts appear in the pending case that might be treated as significant.
I agree with the submissions of the learned Senior Advocate for the 1st Respondent and the Counsel for the 1st and 3rd – 7th Respondents that it is not every fact in the precedent and pending case that must be considered to determine if the two cases are factually similar. Only facts that are significant or relevant to the resolution of the question in the precedent case and the pending case that should be considered. The precedent case and the pending case do not have to be identical in all facts. I adopt the restatement of the Tobi, J.S.C in Adetun Olade J. I. (Nig) Ltd vs. Nigerian Breweries PLC (2007) 5 NWLR (Pt.1027) 415 at 436 that “stare decisis which means to abide by or adhere to decided cases, as a policy of court to stand by precedent, is based on a certain state of facts which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude. And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same…”
So to determine if the trial court rightly relied on Lado’s case, this Court has to find out if Lado’s case is directly in point or on all fours with this case within the terms of the criteria outlined above in Ugwu’s case. Firstly, what was the issue that was joined by both parties on their pleadings, that was raised for determination and resolved by the trial court in the instant case and what was the question resolved in Lado’s case. It is clear from the pleadings of both sides and the affidavit in support of the application to strike out the suit for lack of jurisdiction, that two factual issues and one issue of law were determined by the trial court in its ruling. The three issues are as follows-.
1. Between the primary election held on 5-1-2011 and the one held on 11-1-2011 by the respective factions of the 1st respondent which is valid and produced its candidates for the general election to National Assembly seats for the same Constituencies.
2. Which between the 1st – 3rd plaintiffs produced by the 5-1-2011 primary election conducted by a faction of the 1st respondent and the 3rd to 5th respondents produced by the 11-1-2011 primary election conducted by the other faction of the 1st respondent are the 1st respondent’s candidates for the said 9th April 2011 general elections.
3. Whether the above two issues fall within the purview of the narrow jurisdiction vested in the High Court by S.87(9) of the 2010 Electoral Act as amended.
These were the questions resolved by the trial court when it held that “I am of the view that it is not possible for this Honourable Court to determine whether the party guidelines and Electoral Act were violated in the process of the purported primaries that produced the 2nd set of defendants without considering which of the primary election of the political party held was the valid primary election of the political party; and therefore which of the two or more persons is the duly nominated candidate of the party for the elective office. Under such circumstance the court will obviously have to choose between the two lists of candidates who all claim to have been nominated at different primary elections of the PDP. The Court would have to uphold one list of the candidates and void the other list. This I must say, that going the case of Lado cannot be entertained by this court. It is clearly outside the conditions for redress stipulated under the provisions of section 87 (9) of the Electoral Act.”
The Supreme court in Lado’s case held that “where, however there is a dispute as in the instant case to which of two primaries of a political party produced the nominated candidates, that dispute is not justiciable under the provisions of Section 87(a)(b)(ii) and (9) supra and the courts will have no jurisdiction to entertain same. It is obvious that the questions resolved in Lado’s case are exactly the same as the ones resolved by the trial court in this case. Lado’s case and this case were struck out or dismissed as a direct result of the resolution of the above questions. Therefore both cases were disposed of on the basis of the resolution of the above mentioned questions. I have earlier in this judgment reproduced the summary of the facts of Lado’s case and this case. It is glaring that the material or significant facts of the Lado’s case and this case are the same. The distinguishing facts between Lado’s case and this case as highlighted by learned counsel for the appellants are not material or significant as they do not cause any difference in the central issue in controversy that was resolved in the two cases.
Differences in facts like how each case was commenced, stage of disposal of case, how the claims were couched, the existence of a counter-claim or cross-action are not material or significant.
For the above reasons I hold that the decision of the Supreme Court in Lado’s case applies to this case and that the trial court rightly relied on the said decision in Lado’s case in declaring trial it has no jurisdiction to determine the question of which as between the two primaries is the valid one and which as between the two set of candidates produced by the respective primaries are the validly nominated candidates and striking out the entire suit for lack of jurisdiction. Issue No. 3 is therefore resolved in favour of the Respondents.
On the whole I hold that this Appeal lacks merit and therefore fails. It is hereby dismissed. The appellants shall each pay cost of N50, 000.00 to the 3rd – 5th respondents.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother Agim, J.C.A. I agree absolutely with the reasoning and the conclusion arrived at therein. The learned trial judge was on firm ground when he followed the decision of the Supreme Court in Senator Lado & Ors. v. C.P.C. & Ors. (2012) ALL FWLR (Pt.607) 598 and struck out the suit filed by the Appellants for want of jurisdiction. The facts in Lado’s case are substantially the same with the case at hand. Going by the doctrine of stare decisis the lower court was therefore bound to follow Lado’s case. For the reasons ably stated in the lead judgment which I adopt as mine, I too dismiss the appeal as lacking in merit. I agree with the order of costs contained in the lead judgment.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading in draft the lead Judgment of my Learned brother, Agim J.C.A. and am in complete agreement that this Appeal lacks merit by virtue of the decision in Lado & Ors. v. CPC & Ors. (2011) 18 NWLR (Pt.1279) 689 per Onnoghen, J.S.C.
It is accordingly dismissed also with costs assessed at N50, 000.00 to be paid by each of the appellants to each of the 3rd – 5th respondents.
Appearances
Ikhide Ehighelua Esq. with A. E. Alagun Esq.For Appellant
AND
Ogochukwu Onyekwuluje Esq. with Mrs. H. Udezue for the 3rd – 5th Respondents.For Respondent
