LAWAL v. PDP & ORS
(2022)LCN/17024(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, September 30, 2022
CA/ABJ/CV/898/2022
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
MR. JIMI ADEBISI LAWAL APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC) 3. MR. OLADIPUPO ADEBUTU RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
In law, jurisdiction, a threshold issue, is fundamental to adjudication and without it a Court would lack the power to entertain a Suit over which it had not the requisite jurisdiction, since to do otherwise would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. In law, it is the claim of the Claimant that ordinarily determines the jurisdiction of the Court and therefore, once the Suit of a Claimant is within the ambit of the jurisdiction of the Court, not even a strong defense can disentitle the Court from hearing and determining such a claim competently before it as in the instant case. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284, Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill, JCA, Okponetus & Ors V. APGA & Anor (2021) LPELR- 55923(CA) per Sir Biobele Abraham Georgewill, JCA.
Now, in determining jurisdiction of a Court, recourse would be had only to the Claimant’s originating processes, since in law the jurisdiction of a Court is determined by the Claimant’s claims rather than the Defendant’s Statement of Defence. In other words, it is the claim before the Court that is examined to see whether it comes within the jurisdiction conferred on it, since the law remains settled that it is the claim of the Claimant that determines the jurisdiction and since the Appellant’s claim was commenced by originating summons, it is the endorsements therein and the Affidavit in support that will determine the jurisdiction of the Court. See Olugbemi V Lawrence & Ors (2017) LPELR – 42361 (SC). See also Abia State Independent Commission V. Chief Okechi Kanu & Ors (2013) 12 SCM 46 AT p. 52, Dr. Louis Nonye Obodo V. Peoples Democratic Party & Ors (2014) LPELR 22828 (CA). PER GEORGEWILL, J.C.A.
WHETHER OR NOT JURISDICTION CAN BE CONFFERED ON THE COURT OR CAN BE REMOVED FROM THE COURT BY THE PARTIES
In law, jurisdiction can neither be conferred on the Court nor be removed from the Court by the parties. It is conferred either by the Constitution or statute, and therefore, cannot be circumvented by either the parties or even the Court. It is always governed by the Constitution or Statute creating it. So, also no Court has the power to confer or donate jurisdiction to itself or decline jurisdiction properly conferred on it by law. Thus, any challenge to a Court’s jurisdiction must be resolved within the purview of the legislation that donated the jurisdiction to the Court. See Osi V. Accord Party & Ors (2016) LPELR – 41388 (SC). See also Azubuogu V Oranezi & Ors (2017) LPELR 42669 (SC), AG. Lagos State V. AG. Federation (2014) 9 NWLR (pt 1412) 217 254, Tiza V Begha (2006) 6 SC (Pt. 11) 1, Galadima V Tambai (2000) 6 SC (PT. 1) 196.
Interestingly, and instructively too, in Ardo V. Nyako (2014) All FWLR (Pt. 744) 130 AT p. 160, the Supreme Court had stated inter alia that under Section 87 (9) of the Electoral Act 2010 (as amended), which I must observe is impari materia with Section 84 (14) of the Electoral Act 2022, an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election. See also in Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206 AT pp. 1225 – 1227, Adebayo V. PDP (2013) All FWLR (Pt. 695) 204 AT p. 230, Emenike V. PDP (2012) LPELR – 7802 (SC). PER GEORGEWILL, J.C.A.
WHETHER OR NOT THE QUESTION OF WHO IS A CANDIDATE OF A POLITICAL PARTY IS A POLITICAL QUESTION
Now, there is also the very crucial issue of the allegation of non – compliance with the provision of Section 84 (8) of the Electoral Act 2022 and the PDP guidelines for the conduct of primaries for the election of its candidates for the 2023 General Election in Ogun State as raised by the Appellant in the Originating Summons against the 1st and 3rd Respondents and whether such an issue raises a political question and which is non-justifiable in law and thus does not confer any jurisdiction on the lower Court? I am aware and it is true that in law the question of who is a candidate of a political party is clearly a political question and is thus, non – justifiable being at the sole discretion or power of the party concerned as its internal affairs over which no Court has the jurisdiction to superintend. See Onuoha V. Okafor (1983) 2 NSCC 494. See also Taiwo V. Adeboro (2011) All FWLR (Pt. 584) 53, Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): In this appeal, the Appellant is challenging the judgment of the Federal High Court, Abuja Division delivered by Hon. Justice Taiwo O. Taiwo on 29/7/2022 in Suit No. FHC/ABJ/CS/773/2022: Mr. Jimi Adebisi Lawal V. Peoples Democratic Party & Ors, wherein the Appellant’s Suit was dismissed for being incompetent as arising from the internal affairs of the 1st Respondent, PDP over which the lower Court had no jurisdiction.
The Appellant filed two Notices of Appeal on 5/8/2022 and 11/8/2022 respectively at pages 4258 – 4266 and 4266 – 4280 in Volume 8 of the Records of Appeal, but relied on the latter Notice of Appeal filed on 11/8/2022 for the arguments in this appeal. The Records of Appeal in 8 Volumes were duly transmitted to this Court on 24/8/2022. The parties filed and exchanged their respective briefs and at the hearing of the Appeal on 27/9/2022, the Appellant was represented by Chief Kanu G. Agabi SAN and Ola Olanipekun SAN with Chika Odoemene Esq and Mary Francis Orji Esq. The 1st and 3rd Respondents were represented by Chief Chris Uche SAN and Goddy Uche SAN with Marvel Akpoyibo Esq., (DIG Rtd.) and Ehi Uwai ESq. The 2nd Respondent, though duly served with the processes in this appeal as well as hearing notice on 26/9/2022, neither filed any brief nor participated at the hearing of this appeal.
By an Originating Summons filed on 2/6/2022, the Appellant as Claimant had commenced an action against the Respondents as Defendants seeking the determination of the following questions, namely:
1. Upon the construction of Section 84(1)(2)(5)(b) & (8) of the Electoral Act, 2022, Article 25(1)(L) & (2)(C) of the Constitution of the Peoples Democratic Party 2012 (as amended) and the Directive of the 1st Defendant dated 20/5/2022, whether the 1st Defendant was not bound to nominate its Ogun State Governorship Candidate for the 2023 General Elections by conducting its indirect primary election on the basis of voting by ad – hoc delegates who were democratically elected at the Ward Congresses of the 1st Defendant, for the purposes of the governorship primaries.
2. If the resolution of Question No. 1 is in the affirmative, whether upon the same interpretation of the said Section 84(1) (2) (5)(b) & (8) of the Electoral Act, 2022, Article 25(1)(L) & (2)(C) of the Constitution of the Peoples Democratic Party 2012 (as amended) and the Directive of the 1st Defendant dated 20/5/2022, the Ogun State Governorship indirect primary election of the 1st Defendant conducted on 25/5/2022 and monitored by the 2nd Defendant, whereat statutory delegates and voters other than the ad – hoc delegates who were democratically elected at the Ward Congress of the 1st Defendant, which was held on 30/4/2022 for the purposes of the Governorship primaries, was not invalid, null and void ab initio.
3. In view of the foregoing and extant provisions of Section 84(1)(2)(5)(b) & (8) of the Electoral Act, 2022 and the Directive of the 1st Defendant dated 20/5/2022, whether the 1st Defendant can validly nominate and/or forward the name of the 3rd Defendant to the 2nd Defendant, as the Ogun State Governorship Candidate of the 1st Defendant for the 2023 General Elections and whether the 2nd Defendant can validly accept the nomination of the said 3rd Defendant, without the 1st Defendant conducting a valid Governorship Primary Election whereat the ad – hoc delegates, who were democratically elected at the Ward Congresses of the 1st Defendant, for the purposes of the Governorship Primaries, would vote.
Upon the determination of the aforesaid questions, the Appellant as Claimant sought the following reliefs, namely:
1. A Declaration of the Court that under Section 84(1)(2)(5)(b) & (8) of the Electoral Act, 2022 and its own Directive, dated 20/5/2022, the 1st Defendant was bound to nominate its Ogun State Governorship candidate for the 2023 General Elections by conducting its indirect primary election on the basis of voting by ad – hoc delegates who were democratically elected at the Ward Congresses of the 1st Defendant, which were held on 30/4/2022, for the purpose of the Governorship Primaries.
2. A Declaration of the Court that the indirect primary election of the 1st Defendant, conducted on 25/5/2022 to determine its Ogun State Governorship Candidate for the 2023 General Election, whereat the voters were persons other than the ad – hoc delegates who were democratically elected at the Ward Congresses of the 1st Defendant held on 30/4/2022 for the purpose of the Governorship primaries, was invalid, null and void ab initio.
3. A Declaration of the Honourable Court that the 1st Defendant cannot validly nominate and/or forward the name of the 3rd Defendant to the 2nd Defendant, as the Ogun State governorship candidate of the 1st Defendant for the 2023 General Elections, without conducting a valid Governorship Primary Election whereat the ad – hoc delegates who were democratically elected at the Ward Congresses of the 1st Defendant, for the purpose of the governorship primaries, would vote.
4. An Order of the Court setting aside the indirect primary election of the 1st Defendant, which was conducted on 25/5/2022, for the nomination of the 1st Defendant’s Ogun State Governorship Candidate for the 2023 General Elections, as being invalid, null and void ab initio, having been conducted on the basis of voters and Voter’s List other than the List of ad – hoc delegates who were democratically elected at the Ward Congresses of the 1st Defendant.
5. An Order of the Court setting aside any nomination of the 3rd Defendant as the Ogun State Governorship Candidate of the 1st Defendant, pursuant to the indirect primary election of the 1st Defendant conducted on 25/5/2022, as being invalid, null and void ab initio.
6. An Order of Injunction/Prohibition by the Court restraining and/or prohibiting the 2nd Defendant from accepting the name of the 3rd Defendant, as the Ogun State Governorship candidate of the 1st Defendant for the 2023 General Elections, without prior conduct of a valid Governorship Primary Election, based on a list of ad-hoc delegates democratically elected at the Ward Congress of the 1st Defendant, for the purpose of the Governorship Primaries.
7. An Order of the Court mandating the 1st Defendant to conduct a fresh primary election within 30 days, on the basis of voting by ad – hoc delegates, who were democratically elected at the Ward Congresses of the 1st Defendant, for the nomination of its Ogun State Governorship Candidate for the 2023 General Elections, in strict compliance with the provisions of Section 84(1)(2)(5)(b)&(8) of the Electoral Act, 2022 and its own Directive, dated 20/5/2022.
8. An Order of the Court mandating the 2nd Defendant to monitor the fresh primary election to be conducted by the 1st Defendant to determine its Ogun State Governorship Candidate for the 2023 General Elections; and to accept the name of the candidate who scores the highest number of lawful votes in the election to be so held, as the 1st Defendant’s Ogun State Governorship Candidate for the 2023 General Elections. See pages 3 – 613 in Vol. 1 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
On the part of the Appellant, the pith of his case was that pursuant to the Timetable and Schedule of Activities released by the 2nd Respondent (INEC) for the 2023 General Elections, the 1st Respondent issued Guidelines and Directives for the selection of the 1st Respondent’s candidates for the 2023 General Election through the conduct of indirect primary elections in line with the provisions of Section 84(5) of the Electoral Act, 2022. Consequently, on 30/4/2022 the 1st Respondent conducted Ward Congresses in Ogun State where ad – hoc delegates were democratically elected to participate as voters in the indirect primary election of the 1st Respondent’s gubernatorial candidate in Ogun State. The Appellant and the 3rd Respondent were among the aspirants who were duly screened and cleared by the 1st Respondent to contest the indirect primary election in Ogun State for the selection of the 1st Respondent’s gubernatorial candidate for the 2023 general election. However in the indirect gubernatorial primary election conducted by the 1st Respondent in Ogun State on 25/7/2022, the 1st Respondent did not use the List/Register of democratically elected delegates but had instead used a different List/Register and at the conclusion of the said Governorship primary election the 3rd Respondent was declared as the purported winner with 714 votes, whilst zero votes were allocated to all other aspirants who participated in the primary election, and consequently, the 3rd Respondent was presented to the 2nd Respondent as the Governorship candidate of the 1st Respondent in Ogun State.
On the part of the 1st and 3rd Respondents, the pith of their case was that on 25/5/2022, the 1st Respondent in compliance with the provisions of the Electoral Act 2022, conducted its primary election for the selection of the candidate for the Governor of Ogun State, which said primary election was conducted by the Primary Election Committee appointed by the National Working Committee of the 1st Respondent. At the conclusion of the primary election, the 3rd Respondent scored the highest number of votes cast and was accordingly declared the winner with a total of 714 votes. The Primary Election Committee issued a report of the conduct of the said primary, which primary election was duly monitored by the 2nd Respondent, INEC in line with its statutory duty. The 2nd Respondent also issued its report confirming that it was the duly elected ad – hoc delegates list that was used during the conduct of the said primary election. As required by law, the 1st Respondent had since forwarded the name of the 3rd Respondent to the 2nd Respondent as its duly nominated candidate for 2023 Ogun State Governorship election. However, the Appellant who just a few weeks ago before the said primary election had decamped from the All Progressives Congress (APC) lost in the primary election, and rather than accept defeat, left the Federal High Court, Abeokuta, to approach the Federal High Court Abuja to file the Suit in a bid to stop the 1st Respondent, PDP, from fielding a candidate for the general election on complaint against the authentic delegates list used to conduct the said Governorship primary election of 25/5/2022.
At the lower Court, the parties filed and exchanged their affidavit and counter-affidavit evidence and relied on a plethora of documents as annexed to their respective affidavits and counter – affidavit and the matter proceeded to hearing. At the conclusion of the hearing, the lower Court dismissed the Appellant’s Suit for being incompetent on the ground that it touches on the internal affairs of the 1st Respondent, which was not justiciable in law, hence the Appeal. See pages 4222 -5257 and 4266 – 4280 in Volume 8 of the Records of Appeal.
ISSUES FOR DETERMINATION:
The Appellant had nominated the following three issues for determination in this appeal, namely:
1. Whether the lower Court was right when, in spite of finding that the Appellant’s Suit complains of the 1st Respondent’s violations of the provisions of the Electoral Act as well as its Constitution and Guidelines, it proceeded nonetheless to hold that the Suit was an invitation to the Court to consider a matter within the internal affairs of the party, in consequence of which it declined jurisdiction to entertain the Suit and thereby occasioned a miscarriage of justice? (Distilled from Grounds 1, 2 and 3)
2. Whether the lower Court was right when it failed and/or refused to give any consideration whatsoever to the issues submitted for determination by the Appellant, all of which constitute the substantive Suit before the lower Court and thereby violated the Appellant’s right to fair hearing? (Distilled from Ground 4)
3. Whether the judgment of the lower Court delivered on Friday, 29/7/2022, was not perverse having regard to the fact that on the preponderance of the affidavit evidence before the lower Court the Appellant was entitled to the reliefs sought? (Distilled from Ground 5 and 6)
On their part, the 1st and 3rd Respondents had nominated the following three issues for determination, namely:
(1). Whether the lower Court was right in dismissing the Appellant’s Suit for lack of jurisdiction on the ground that inquiring into the issue of who are the authentic delegates used in the conduct of the 1st Respondent’s Ogun State Governorship Primary Election held on 25/5/2022, was an internal affair of the 1st Respondent which is not justiciable? (Distilled from Grounds 1, 2 and 3)
(2). Whether in the circumstances of this case, the lower Court having dismissed the Appellant’s case for want of jurisdiction was bound to still consider all the issues for determination and determine the case on its merits? (Distilled from Grounds 4, 5 and 6)
Looking at the issues as nominated by the parties, they do not appear to me to be too dissimilar. I shall therefor adopt the three issues as nominated in the Appellant’s brief as the issues for determination in this appeal. However, in the light of the importance of jurisdiction to adjudication, I shall consider and resolve issue one first and thereafter, and if need be, proceed to consider issues two and three together and resolve them in one fell swoop. I am of that a consideration of issue one of the Appellant would cover issue one of the 1st and 3rd Respondent, while a consideration of issues two and three of the Appellant would cover issue two of the 1st and 3rd Respondents.
ISSUE ONE
Whether the lower Court was right when, in spite of finding that the Appellant’s Suit complains of the 1st Respondent’s violations of the provisions of the Electoral Act as well as its Constitution and Guidelines, it proceeded nonetheless to hold that the Suit was an invitation to the Court to consider a matter within the internal affairs of the party, in consequence of which it declined jurisdiction to entertain the Suit and thereby occasioned a miscarriage of justice?
APPELLANT’S SENIOR COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review in its entirety, learned Senior Advocate for the Appellant had submitted inter alia that the lower Court was in error when it dismissed the Appellant’s Suit on the ground that it did not disclose a justiciable cause of action and contended that the claim of the Appellant, contrary to the perverse findings of the lower Court was not based on the internal affairs of the 1st Respondent to determine the valid list of ad – hoc delegates to the Governorship primary election of the 1st Respondent but rather firmly on the breaches of both the Electoral Act 2022 and the Constitution and Guidelines of the 1st Respondent for the conduct of its Governorship primary election for the nomination of its candidate for the 2023 Governorship election in Ogun State and urged the Court to hold that such a claim is justiciable and recognized as such both the Electoral Act 2022, the Constitution of Nigeria 1999 (as amended) and a plethora of countless judicial decisions of both the Supreme Court and this Court since in law it is the claim of the Claimant that determines the jurisdiction of the Court and to allow the appeal and set aside the perverse judgment of the lower Court. Learned SAN referred to paragraphs 8 – 11 of the Affidavit in support of the Originating Summons, Sections 84 (1), (2), (5)(b) and (8) of the Electoral Act, 2022 and relied on Savage V. Uwechia (1972) All NLR 255 AT p. 261; Agbonika V. University of Abuja (2014) All FWLR (Pt. 715) 335 AT p. 353; Williams V. Williams (2008) All FWLR (Pt. 433) 1245 AT p. 1258.
It was also submitted that from a community reading of the questions for determination and the reliefs sought in the Originating Summons, it is clear that the Appellant’s cause of action is the non – compliance by the 1st Respondent with the provisions of the Electoral Act 2022 and the 1st Respondent’s Guidelines in the conduct of the indirect gubernatorial primary election held in Ogun State on 25/5/2022 and contended that in law statutory delegates are not allowed to vote in the primary election since they are not elected at the Ward Congresses of the party and urged the Court to hold that to allege as the Appellant did that the primary election was conducted contrary to the provisions of the Electoral Act 2022 by the use of statutory delegates rather than ad – hoc delegates elected at the Ward Congresses for that purpose was not an internal affair of the 1st Respondent as perversely held by the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and affirm the jurisdiction of the lower Court to hear and determine the Appellant’s Suit on the merit. Learned SAN referred to paragraphs 5, 6, 7 & 8 of the Affidavit in support of the Originating Summons, Section 285 (9) & (14) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and Sections 84 (1), (2), (5)(b) and (8) of the Electoral Act 2022.
It was further submitted that from the depositions in the Affidavit in support of the Originating Summons showing the clear violations of both the Electoral Act 2022, the Constitution and Guidelines of the 1st Respondent and most importantly the relevant provisions of the Constitution of Nigeria 1999 (as amended), the Appellant’s cause of action bordered on a pre-election matter, as was even rightly found by the lower Court and against which there is no appeal, and therefore, justiciable in law contrary to the perverse findings of the lower Court and contended that the perverse decision of the lower ignoring the clams and facts relied upon by the Appellant and resorting to the allegations made in the counter-affidavit in resolving the issue of its jurisdiction over the claims of the Appellant was contrary to the trite position of the law that it is the claim of the Claimant that determines the jurisdiction of the Court and had thereby occasioned a grave miscarriage of justice against the Appellant and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the lower Court and affirm the competence of the Appellant’s Suit. Learned SAN referred to Section 285 (9) & (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 84(14) of the Electoral Act 2022, and relied on Bhojsons Plc V. Kalio (2006) LPELR – 777 (SC), Oshodi V. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 AT 352.
1ST AND 3RD RESPONDENTS’ SENIOR COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review in its entirety, learned Senior Advocate for the 1st and 3rd Respondents had submitted inter alia that the lower Court below was right in holding that the Appellant’s Suit as constituted and predicated was incompetent and the lower Court lacked the requisite jurisdiction to entertain it under the very limited jurisdiction conferred on the lower Court and contended that it was immaterial the cloak which the Appellant’s Suit was adorned since the lower Court is permitted to examine the processes before it to ascertain the true nature of the dispute before it and which if found out rightly to be the domestic affairs of the 1st Respondent and therefore, not justiciable in law and urged the Court to hold that the real case of the Appellant as was rightly held by the lower Court was which of the delegates’ list should have been used to conduct the primary election, either the one presented by the 1st Respondent through its National Organ or the one produced and paraded by the Appellant, which is an invitation to the lower Court to inquire into how the Ward delegates election of 30/3/2022 was conducted, and whether the delegates so elected were democratically elected, which is an enquiry into the internal affairs of the 1st Respondent and therefore, not justiciable and to dismiss the appeal and affirm the correct judgment of the lower Court. Learned SAN referred to Section 84(14) of the Electoral Act 2022, and relied on Emeka V. Okoroafor & Ors (2017) LPELR – 41738(SC) AT pp. 78 – 79.
It was also submitted that it was not disputed that the Governorship primary election of the 1st Respondent was held on 25/5/2022, in which the 3rd Respondent emerged as the 1st Respondent’s Governorship Candidate for Ogun State for the 2023 General election and contended that the gravamen of the Appellant’s complaint was that his own delegates’ list should have been used for the conduct of the primary election, a list disowned by the 1st and 3rd Respondents as spurious and urged the Court to hold that the unchallenged evidence that the persons listed in the Appellant’s own delegates’ list did not participate in the Special Ward Congresses and therefore, could not have been delegates on 30/3/2022 to elect ad – hoc delegates to vote at the 1st Respondent Ogun State governorship primary election held on 25/5/2022, having not been rebutted, it is clear that it was the delegates elected at the 1st Respondent’s Ward congresses that participated and voted at the 1st Respondent Ogun State governorship primary election which produced the 3rd Respondent as the 1st Respondent’s Ogun State governorship candidate, which issue is clearly the internal affairs of the 1st Respondent and therefore not justiciable in law as rightly held by the lower Court and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court.
It was further submitted that contrary to the claims of the Appellant there was no violation whatsoever of the provisions of Section 84(8) of the Electoral Act 2022, or the Guidelines of the 1st Respondent in any manner whatsoever and contended that the unchallenged evidence was that 1st Respondent set up a Ward Electoral Committee, which conducted the Special Ward Congress where ad – hoc delegates were elected and who participated and voted at the 1st Respondent Ogun State governorship primary election as required by law and urged the Court to hold that the 1st Respondent complied with the Electoral Act 2022 and its Guidelines, the Appellant having failed to show or give any evidence of a single such statutory delegate that voted in the primary election as all his assertions were left bare and empty and to dismiss the frivolous appeal and affirm the sound judgment of the lower Court Learned SAN referred to paragraphs 26, 34, 35, 36 and 37 of the 1st and 3rd Respondents’ Counter-Affidavit deposed to by one Dr. Sunday Solarin, the Ogun State Secretary of the 1st Respondent, Section 84 (14) of the Electoral Act 2022 and Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Omisore & Ors V. Aregbesola & Ors (2015) NWLR (Pt. 1482) 205 AT p. 273, Esustech V. Institute Of Journalism, Management And Education Ltd & Anor (2008) LPELR-11880 (CA), Prince Oyedotun Babayemi Vs Peoples Democratic Party (PDP) & 2 ORS (2022) LPELR – 58175(CA), Akinremi & Anor Vs Suleiman & Ors (2022) LPELR-56903 (CA), Dr. Tony Macfoy & Ors V. Muhammad Chola & Ors (2022) LPELR – 56982 (CA), APC V. Moses (2021) 14 NWLR (Pt. 1796) 278, Aguma V. APC (2021) 14 NWLR (Pt. 1796) 351, Gana V. SDP & Ors (2019) LPELR – 47153 (SC) AT pp. 34 – 35, Gwede V. INEC (2014) 18 NWLR (Pt. 1438) 56, Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556 AT p. 590, Ehinlanwo V. Oke (2008) 16 NWLR (Pt. 113) 357 AT p. 405, Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545, Ufomba V. INEC & Ors (2017) LPELR – 42079 (SC) AT pp. 46 – 48.
It was also further submitted that superior Courts of record, including the lower Court are creations of the Constitution and of statute and therefore, their jurisdiction is constitutional and statutory and they must rightly confine themselves to the jurisdiction so granted and donated to them and contended that in law jurisdiction is a threshold issue in litigation and adjudication and must be first resolved and determined when a challenge is mounted on the jurisdiction of the Court as the 1st and 3rd Respondents did and urged the Court to hold that on the facts and circumstances of the instant case, the Appellant’s Suit was grossly incompetent as rightly held by the lower Court, which had thereby declined jurisdiction to determine it on the merit and to dismiss the appeal and affirm the sound judgment of the lower Court. Learned SAN relied on Madukolu V. Nkemdili (1962) NSCC 374 AT pp. 379 – 380.
APPELLANT’S SENIOR COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review in its entirety, learned Senior Advocate for the Appellant had reiterated their earlier submissions and had further submitted inter alia that the 1st and 3rd Respondents in their brief did not counter the point that a complaint that a political party primary was not conducted in accordance with the provisions of the Electoral Act, 2022 and the political party guidelines for primary election is a justiciable pre-election matter within the contemplation of Section 84(14) of the Electoral Act, 2022 and Section 285 (14) of the 1999 Constitution as Amended and contended that in law pints not countered are deemed conceded and urged the Court to hold that in addition the 1st and 3rd Respondents also conceded that by virtue of Section 84 (8) of the Electoral Act, 2022 and the 1st Respondent’s guidelines for the primary election only ad – hoc delegates elected at the 1st Respondent’s Ward Congresses were eligible to vote in the 1st Respondent’s Ogun State Governorship primary held on 25/5/2022 and to allow the appeal as the Appellant’s Suit founded on the alleged non – compliance with the relevant provisions of the Electoral Act 20222 and the Guidelines of the 1st Respondent as well relevant provisions of the Constitution of Nigeria 1999 (as amended) was clearly a justiciable pre-election matter contrary to the perverse decision of the lower Court. Learned SAN relied on Olley V. Tunji (2013) 10 NWLR (Pt. 1362) 289 AT p. 321, FMCT V. Eze (2006) 2 NWLR (Pt. 964) 221 AT p. 241.
RESOLUTION OF ISSUE ONE
At the lower Court, the Appellant as Claimant had commenced an action by means of an Originating Summons seeking the determination of several questions and claiming several reliefs against the 1st, 2nd and 3rd Respondents as Defendants. The Originating Summons was supported by an Affidavit of 12 paragraph affidavit deposed to by the Appellant, to which were annexed five documents marked as Exhibit. It was also supported by a 4 paragraph Affidavit of non-multiplicity of actions on the same subject matter, also deposed to by the Appellant. The 1st and 3rd Respondents, as Defendants, filed a Notice of Preliminary Objection on 21/7/2022 challenging the jurisdiction of the lower Court on the grounds inter alia that the crux of the Appellant’s Suit relates to the composition of delegates list of the 1st Defendant for the conduct of its primary election, and that this issue is a pre-primary election matter predicated upon the selection of delegates of a political party being an exclusively internal affair of the political party and therefore not justiciable.
The Notice of Preliminary Objection was supported by an Affidavit of 5 paragraphs deposed to by one Emmanuel Tsebo. In response thereto, the Appellant filed a reply on points of law dated 25th July, 2022. In response to the Originating Summons, the 1st and 3rd Respondents filed an 8 paragraphs Counter – Affidavit deposed to by one Dr. Sunday Solarin FCA, Secretary of the 1st Respondent Ogun State Chapter, annexed to which were 8 documents as Exhibits. In reply, the Appellant filed a 27 paragraph Further – Affidavit deposed to by the Appellant. On its part, on their part, the 2nd Respondent, INEC filed a 6 paragraph Counter – Affidavit deposed to by one Amaka Okoye, an Admin Officer. The 1st and 3rd Respondents also filed a Further Counter – Affidavit against the Originating Summons.
I have taken time to study the affidavits and counter-affidavits of the parties. I have also reviewed the submissions of learned Senior Advocates for the parties. Now, in law, jurisdiction is the epicentre of the adjudication process and therefore, it determines the powers of a Court to either hear and or determine a cause or matter or to decline to do so where it has not, the jurisdiction so to do. Jurisdiction is statutorily conferred. Thus, where none is conferred neither the Court nor the parties can confer jurisdiction on the Court. A Court, it has been said over and over again, is competent only when it is properly constituted as regards numbers and qualifications of the members, no member is disqualified for one reason or another; the subject matter of the case is within its jurisdiction; there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case before the Court is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See Madukolu & Ors V. Nkemdilim (1962) 2 NSCC 374. See also Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310. See also Zerock Construction Nigeria Limited V. Faplin Nigeria Limited (2022) LPELR -57504(CA) per Sir Biobele Abraham Georgewill, JCA.
However, in all of these, the law is that it is the claims of a Claimant that denotes and determine the jurisdiction of the Court. No matter how weak is the case of the Claimant and or no matter how strong is the defence of the Defendant, it cannot divest the Court of its jurisdiction once the claims of the Claimant is within the jurisdiction of the Court. The jurisdiction of the Court is neither determined nor adversely affected by the evidence through which a Claimant intends to prove his case. If the evidence relied upon by a Claimant are weak or not supportable or even not admissible it can only result into a dismissal of the claims of the Claimant but cannot divest the Court of its jurisdiction.
Now, by Section 285 (14) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“For the purpose of this Section, “pre-election matter” means any Suit by –
A. An Aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election:
B. An Aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election;
and
C. A Political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
And, by Section 84 (1), (2), (5), and (14) of the Electoral Act 2022, it is provided thus:
(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus.
(5) Indirect Primaries. A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined:
(b) in the case of nominations to the position of a Governorship candidate, the political party shall, where it intends to sponsor candidates – (i) hold a special congress in the State Capital or any other place within the State with delegates voting for aspirants of their choice at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party; and (ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party, for the particular State.
(14) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
Now, Section 84(14) of the Electoral Act 2022 is a clear demonstration of the well settled Latin maxim: “ubi ius ubi Remeduim” – where there is a right, there is a remedy.
By the combined effects of the above provisions of the Electoral Act 2022, and the Constitution of Nigeria 1999 (as amended), it seems clear to me and I so hold firmly that in a claim bordering on an alleged or any alleged violation of any of the provisions of Section 84 of the Electoral Act 2022, and or Section 285 of the Constitution of Nigeria 1999 (as amended) would amount to a pre-election matter, the Federal High Court has the unfettered and plenitude of power and jurisdictional competence to hear and determine such a pre-election matter.
In law, jurisdiction, a threshold issue, is fundamental to adjudication and without it a Court would lack the power to entertain a Suit over which it had not the requisite jurisdiction, since to do otherwise would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. In law, it is the claim of the Claimant that ordinarily determines the jurisdiction of the Court and therefore, once the Suit of a Claimant is within the ambit of the jurisdiction of the Court, not even a strong defense can disentitle the Court from hearing and determining such a claim competently before it as in the instant case. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284, Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill, JCA, Okponetus & Ors V. APGA & Anor (2021) LPELR- 55923(CA) per Sir Biobele Abraham Georgewill, JCA.
Now, in determining jurisdiction of a Court, recourse would be had only to the Claimant’s originating processes, since in law the jurisdiction of a Court is determined by the Claimant’s claims rather than the Defendant’s Statement of Defence. In other words, it is the claim before the Court that is examined to see whether it comes within the jurisdiction conferred on it, since the law remains settled that it is the claim of the Claimant that determines the jurisdiction and since the Appellant’s claim was commenced by originating summons, it is the endorsements therein and the Affidavit in support that will determine the jurisdiction of the Court. See Olugbemi V Lawrence & Ors (2017) LPELR – 42361 (SC). See also Abia State Independent Commission V. Chief Okechi Kanu & Ors (2013) 12 SCM 46 AT p. 52, Dr. Louis Nonye Obodo V. Peoples Democratic Party & Ors (2014) LPELR 22828 (CA).
It follows that in this case to determine the jurisdiction of the lower Court all that the lower Court ought to have done was to have scrupulously examine the endorsements as to the claims of the Appellant together with the Affidavit in support to determine the nature of the claims of the Appellant. Unfortunately, and quite regrettably, the lower Court rather that do just that went on a voyage of discovery into all the allegations of the 1st and 3rd Respondents to arrive at very inconsistent conclusions, so perverse on the face of the very clear claims and affidavits of the Appellant which should ordinarily determine the jurisdiction of the lower Court, that I had really wondered how the lower Court arrived at such inconsistent conclusions to the effect that though the claims of the Appellant is a pre-election matter yet it is non-justiciable because the 1st and 3rd Respondents had made the point that a determination of the Appellant’s claim would involve a determination of which of the list relied upon by the parties was the authentic list, which the lower Court took hook, line and sinker! This was at stage when the merit or otherwise of the Appellant’s claim was not yet up for consideration until the issue of the jurisdiction of the lower Court was settled one way or the other. This was a clear failure to understand or a manifest misapprehension of the claims of the Appellant by the lower Court. Indeed, save the claims of the Appellant and his supporting affidavit, no other documents should or ought to have been examined by the lower Court when the issue is whether the lower Court has the jurisdiction or not. See Ohakim V. Agbaso (2010) 19 NWLR (Pt. 1226) 172. See also Elelu Habeeb V AG. Federation (2012) 13 NWLR (Pt. 1318) 423 SC, Emeka V. Okoroafor & Ors (2017) LPELR – 41738 (SC), Lau V. PDP & ORS (2017) LPELR -42800 (SC), Adeniyi Olushola & Anor V. Adolphus Yakubu (2021) LPELR -56015 (CA).
In law, jurisdiction can neither be conferred on the Court nor be removed from the Court by the parties. It is conferred either by the Constitution or statute, and therefore, cannot be circumvented by either the parties or even the Court. It is always governed by the Constitution or Statute creating it. So, also no Court has the power to confer or donate jurisdiction to itself or decline jurisdiction properly conferred on it by law. Thus, any challenge to a Court’s jurisdiction must be resolved within the purview of the legislation that donated the jurisdiction to the Court. See Osi V. Accord Party & Ors (2016) LPELR – 41388 (SC). See also Azubuogu V Oranezi & Ors (2017) LPELR 42669 (SC), AG. Lagos State V. AG. Federation (2014) 9 NWLR (pt 1412) 217 254, Tiza V Begha (2006) 6 SC (Pt. 11) 1, Galadima V Tambai (2000) 6 SC (PT. 1) 196.
Interestingly, and instructively too, in Ardo V. Nyako (2014) All FWLR (Pt. 744) 130 AT p. 160, the Supreme Court had stated inter alia that under Section 87 (9) of the Electoral Act 2010 (as amended), which I must observe is impari materia with Section 84 (14) of the Electoral Act 2022, an aspirant who can invoke the jurisdiction of the Court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election. See also in Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206 AT pp. 1225 – 1227, Adebayo V. PDP (2013) All FWLR (Pt. 695) 204 AT p. 230, Emenike V. PDP (2012) LPELR – 7802 (SC).
Now, this appeal, as I understand it, revolves in the main around the main issues whether a Suit filed by a person who participated in the primary election of a political party for the nomination of its candidate for general election on the ground that it was not conducted in line with the relevant provisions of the Electoral Act 2022 and the Constitution and Guidelines of the affected political party is incompetent by reason of it being an issue bordering on the internal affairs of a political party to be heard and determined by the Federal High Court? There is also the issue, whether a Suit challenging the conduct and outcome of a party primaries is non-justiciable as bordering on the internal affairs of a political party for which the decision of the political party is final to the exclusion of any intervention by the Courts.
To answer these posers, all that needs to be scrutinized are the claims and affidavit of the Appellant. It cannot be the other way round to spend valuable time in vain as the lower Court did considering in depth the case of the 1st and 3rd Respondents at that stage. In law, it has long been well accepted that to determine the jurisdiction of a Court, it is only the averments in the statement of claim or depositions in the affidavit in support of originating summons and not the averments in the statement of defence or depositions in the affidavit in support of notice of preliminary objection or counter-affidavit to the originating summons that is to be carefully scrutinized to see whether or not the Claimant’s Suit was competent or not. In my humble view therefore, since in law the only document to consider in determining the jurisdiction of the lower Court is the originating process and the affidavit in support by the Appellant, and not the counter–affidavit of the 1st and 3rd Respondents or affidavit in support of preliminary objection, the lower Court erred gravely in law to have proceeded in the manner it did and which resulted into the erroneous dismissal of the Appellant’s Suit. See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1, Owodunni V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455, Attorney General of Kwara State V. NJC (2010) LPELR 5009 (CA).
Now, there is also the very crucial issue of the allegation of non – compliance with the provision of Section 84 (8) of the Electoral Act 2022 and the PDP guidelines for the conduct of primaries for the election of its candidates for the 2023 General Election in Ogun State as raised by the Appellant in the Originating Summons against the 1st and 3rd Respondents and whether such an issue raises a political question and which is non-justifiable in law and thus does not confer any jurisdiction on the lower Court? I am aware and it is true that in law the question of who is a candidate of a political party is clearly a political question and is thus, non – justifiable being at the sole discretion or power of the party concerned as its internal affairs over which no Court has the jurisdiction to superintend. See Onuoha V. Okafor (1983) 2 NSCC 494. See also Taiwo V. Adeboro (2011) All FWLR (Pt. 584) 53, Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.
However, be that as it may, it is also equally true in law that a person who participated as a candidate in a primary election of a Political party and alleges a breach of the relevant Sections of the Electoral Act and non – compliance with the guidelines of that Political party for the conduct of the primaries for selection of its candidate for election can competently challenge such alleged infractions and the lower Court would have the plenitude of power and jurisdictional competence to hear and determine such a Suit on the merit as it is justiciable without suffering any jurisdictional impediment. See Rimamnde Bitrus Nuhu V. Senator Emmanuel Bwacha & Ors (2016) LPELR-40810(CA) per Sir Biobele Abraham Georgewill, JCA. See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130, Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ 1039, Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206, Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, Emenike V. PDP (2012) All FWLR (Pt. 640) 1261, Lado V. CPC (2012) All FWLR (Pt. 607) 545, APGA V. Anyanwu (2014) All FWLR (Pt. 735) 243.
Thus, contrary to the perverse findings of the lower Court, the very clear position of the law as resonate in virtually all the decisions of the Supreme Court and this Court as touching on the issue of competence of an action or Suit filed pursuant to Section 84 (14) of the Electoral Act 2022, which was formerly Section 87(9) of the Electoral Act 2010 (as amended) is to the effect that an action or suit by a person, once he was a candidate at the primary of Political party and who alleges a breach of the Electoral Act and guidelines of the affected Political party, is competent and is therefore, clearly justiciable in law. See Section 84(14) of the Electoral Act 2022, which provides thus:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
See also Alhassan & Anor V. Ishaku & Ors (2016) LPELR 40083 (SC). See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130, Anyanwu v. Ogunewe (2014) All FWLR (pt. 738) 1012 AT P. 1039, Rimamnde Bitrus Nuhu V. Senator Emmanuel Bwacha & Ors (2016) LPELR-40810(CA) per Sir Biobele Abraham Georgewill, JCA.
Now, from all I have stated and found as above based on the claims of the Appellant and his supporting affidavit to the Originating Summons, particularly paragraphs 5, 6, 7, 8, 9, 10, and 11 coupled with both the questions for determination and the entire reliefs claimed by the Appellant, as well as the very succinct provisions of Sections 285 (9) & (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 84 (1), (2), (5)(b), (8) and (14) of the Electoral Act 2022, all of which provisions I have duly analysed and borne in mind, the conclusion of the whole matter and I so firmly hold is this: The Appellant’s Suit is founded not on the domestic or internal affairs of the 1st Respondent as was perversely thought and held by the lower Court but rather it was built, founded and concretised in allegations of non – compliance with the relevant provisions of both the Constitution of Nigeria 1999 (as amended) the Electoral Act 2022 and the Guideline of the 1st Respondent and is therefore, in law justiciable and competent to be heard and determined by the lower Court, irrespective of whether it would succeed or fail at the end of the day on the merit. See Okasia V. Oguebego (2015) LPELR-24520 (CA) AT pp. 17 – 18, in which this Court had interpreted the provisions of Section 87(9) of the Electoral Act 2010 (as amended), which is impari materia with the provisions of Section 84 (14) of the Electoral Act 2022, save as to the venue for trial now limited to the Federal High Court, and stated inter alia as follows:
“Courts have no jurisdiction to dabble into the domestic affairs of a political party. This has been the position of Nigerian Courts over the years. See Onuoha V. Okafor (1983) 2 SCNLR 244. However, Section 87 (9) of the Electoral Act 2010 (as amended) gives the Court a limited and narrow jurisdiction in respect of the selection or nomination of a candidate of a political party for election….For the narrow jurisdiction to be ignited, the following cumulative factors must be present; i. There must first have been a primary for the selection or nomination of a candidate of a political party; ii. The exercise must have been in respect of an election; iii. The complainant must be an aspirant who participated in the primary; iv. The political party did not comply with a provision of the Electoral Act or its guidelines for the nomination.”
See also PDP V. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187 AT p. 23, Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556 AT p. 590, Lado V. CPC (2011) 18 NWLR (Pt. 1279) 689 AT pp. 718 -719, Emeka V. Okadigbo (2012) 18 NWLR (1331) 55 AT pp. 88 – 89, APGA V. Anyanwu (2014) 7 NWLR (Pt. 1407) 541 AT pp. 577 – 578, Rimamnde Bitrus Nuhu V. Senator Emmanuel Bwacha & Ors (2016) LPELR-40810(CA) per Sir Biobele Abraham Georgewill, JCA.
The above position of the law as supported by the plethora of countless number of judicial decisions of both the Supreme Court and this Court is far too well settled to be unsettled by the perverse and inherently inconsistent decision of the lower Court to the contrary, which is liable to be set aside without much ado! The lower Court was therefore, both irredeemably and unpardonably wrong when it held so perversely thus:
“Where a matter is premised on delegates list or where the Suit is not strictly challenging the conduct or the outcome of a pre-election matter, but premised in such a way that the Court will be forced to determine (political party) leadership or membership disputes, the Court will decline jurisdiction as it forms part of the domestic affairs of the party. In the instant case, if the Court were to inquire into the merits of the Suit, it would need to consider the composition of the delegates list and might even have to make pronouncements on some leadership/membership tussle within the 1st Defendant’s Ogun State chapter.”
Nothing can be farther from the truth of the claims of the Appellant than the above off-tangent findings of the lower Court! The lower Court had held clearly that the claims of the Appellant was a pre-election matter and that should have been the end of the matter on the issue of jurisdiction of the lower Court without prejudice to whether or not the claims have merit, which is an entirely different consideration. The lower Court was under a duty to be consistent in its judgment as it cannot hold in one breadth that the claim is a pre-election matter and in another breadth hold that the same pre-election matter is not justiciable as it is an internal – affairs of the PDP.
Indeed, a claim bordering on the internal or domestic affairs of a political party can neither constitute nor qualify as a pre-election matter in law, and I so hold.
A Court of law must, at all times, endeavour to be consistent in its findings and decisions. See Governor of Lagos State & Ors V. Ohaigo Nigeria Limited & Anor (2018) LPELR – 45552(CA), where this Court per Sir Biobele Abraham Georgewill JCA had observed inter alia thus:
“I think that, and I so hold, this rule also applies with equal force to the Courts in considering and arriving at findings in their judgments. The Courts, though not infallible and thus susceptible at times to err, do not enjoy a lower level of compliance with the rule against inconsistency. Thus, a Court cannot in one breadth make one finding and in another breadth on the same evidence and in the same judgment summersault to make an inconsistent finding to its earlier finding. It must lead by example by being consistent before being in a prime position to require of litigant compliance with the rule of consistency in the conduct and presentation of their cases. See Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 AT 663.”
In Akinremi & Anor V. Suleiman & Ors (2022) LPELR-56903 (CA), the issues involved in that case were different to the issues in this appeal, and on which this Court per Sir Biobele Abraham Georgewill, JCA held that there were not justiciable being issues bordering on the domestic affairs of the APC were the complaint of the Claimants before the lower Court against the conduct of Ward Congresses to elect Ward leaders of the APC in Kano State. These issues and facts are a far cry from the facts and issues in the instant case, and these decisions are clearly inapplicable and of no avail to the 1st and 3rd Respondents in this appeal as was rightly pointed out in the Appellant’s reply brief. See also Dr. Tony Macfoy & Ors v. Muhammad Chola & Ors (2022) LPELR – 56982 (CA), a case that relates to the APC State congress for the election of its leaders for Kano State. Indeed, none of the two cases involve a party Primary for the election or nomination of candidate for general election or any other election.
Again, in Prince Oyedotun Babayemi V. Peoples Democratic Party (PDP) & Ors (2022) LPELR – 58175(CA), the differences between the facts of that case and the facts in the instant case are, if I may say for emphasis only, like the differences between day and night and even death and sleep. There is no correlation at all and the lower Court was therefore, very wrong to have misapplied the good and sound decision in that case to the present case and purportedly relying on same to dismiss the Appellant’s Suit, which had no even an iota of any feature of leadership tussle as in the Osun State chapter of the PDP, which led to the conduct of two Governorship Primary elections by different factions of the PDP, which is a very far cry from the very clear facts and circumstances of the instant case.
In law, once it has been demonstrated, as it has been shown by the Appellant in the instant appeal, that the conclusion reached by the lower Court was wrong and therefore perverse, this Court being the appellate Court would be under a duty to intervene to make proper findings and reach correct conclusions. Thus, it is only where the finding of the trial Court is correct that an appellate Court cannot interfere with it but must affirm it. See Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 AT p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134, Ukejianya V. Uchendu 18 WACA 46, Agbon-Ojeme V. Selo-Ojeme & Ors (2020) LPELR – 49688 (CA) per Sir Biobele Abraham Georgewill, JCA.
In the light of all the above, issue one is hereby resolved in favour of the Appellant against the 1st and 3rd Respondents as well as against the 2nd Respondent.
ISSUES TWO AND THREE
My Lord, I have duly considered the Affidavit, Counter – Affidavit and documentary evidence of the parties as in the Records of Appeal. I have also taken time to review the submissions of the parties under issues two and three for determination. Now, I have already held under issue one for determination that the judgment of the lower Court was perverse on the issue of its jurisdiction and thus, liable to be set aside. In the circumstances therefore, I consider issues two and three for determination, dealing with the merit of the Appellant’s claims against the Respondents as premature, and I will show anon! We have been urged by the Appellant to invoke our enormous powers under Section 15 of the Court of Appeal Act 2004 to re-hear and determine the claims of the Appellant on the merit, the lower Court having failed to do so, and the simple reason for this supplication is that it is a pre-election matter which is time bound by 180 days as prescribed by the Constitution of Nigeria 1999 (as Amended).
Now, the Appellant’s Suit was filed on 2/6/2022, and being a pre-election matter it has 180 days within which it should be heard and determined by the lower Court, which we have held has the jurisdictional competence to hear and determine it on the merit. By simple arithmetic calculations, the 180 days from 2/6/2022 will lapse on 2/12/2022, which is more than enough time for the lower Court constituted of another judge to hear and determine the claims of the Appellant commenced by way of an originating summons on the merit. There would therefore, in my view and I so hold firmly, be no need for this Court to invoke the provisions of Section 15 of the Court of Appeal Act 2004 to hear the Claims of the Appellant on the merit in this appeal.
On the whole therefore, having resolved issue one for determination in favour of the Appellant against the 1st and 3rd Respondents, as well as against the 2nd Respondent, and having decided not to consider and resolve issues two and three as touching on the merit of the Appellant’s Claim before the lower Court in this appeal, I hold firmly that this appeal succeeds and ought to be allowed. Consequently, this appeal is hereby allowed.
In the result, the judgment of the Federal High Court, in Suit No. FHC/ABJ/CS/773/2022: Mr. Jimi Adebisi Lawal V. Peoples Democratic Party & Ors, delivered on 29/7/2022, wherein the Appellant’s Suit was dismissed for being incompetent as arising from the internal affairs of the 1st Respondent, PDP over which the lower Court had no jurisdiction, is hereby set aside.
In its stead, the Appellant’s Suit No. FHC/ABJ/CS/773/2022: Mr. Jimi Adebisi Lawal V. Peoples Democratic Party & Ors, is hereby remitted to the Chief Judge of the Federal High Court for same to be reassigned to any other judge of the lower Court, other than Taiwo O. Taiwo J., for same to be heard and determined on the merit expeditiously within the remaining part of the 180 days as prescribed by law for the hearing and determination of pre-election matters, according to law.
I make no order as to cost.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential orders.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity of reading in its draft form before now the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. The lead judgment aptly and correctly captured all my views expressed during the several conferences the panel of justices that heard this appeal had and I entirely agree with the reasoning and finding made by my learned brother in the lead judgment. And before I conclude, I want to chip in that a close perusal of the questions submitted for determination by the Appellant as contained in his Originating Summons vis-a-vis paragraphs 4, 5, 7, 8, 9, 10 and 11 of the supporting affidavit to the Originating Summons, these questions for determination centres on the infringement or infraction of the provisions of Section 84 of the Electoral Act, 2022 (as amended). For purposes of clarity, hear what the Appellant deposed to at paragraphs 8, 9 and 10 thus:-
(8) Despite the foregoing directive, the 1st Defendant later conducted its Ogun state Governorship primary Election on 25th May, 2022 in such a manner and with a list of delegates and persons other than the adhoc delegates who were democratically elected at the ward congress of the 1st Defendant for the purpose of the Governorship primaries, and purportedly elected the Defendant as the 1st Defendant’s Governorship candidate for the forthcoming 2023 General Election.”
(9) The Register/list of voting delegates used during the aforesaid Governorship primary Election was clearly marked “statutory Delegates” and contained names of political. Appointees and persons other than the adhoc delegates who were democratically elected at the ward congress of the 1st defendant, which was conducted for the purposes of the Governorship Primaries.
The Register/list of voting delegates used during the primaries is hereto attached and marked Exhibit JAL 5.”
(10) That Exhibit JAL A i.e the Register/list of the democratically elected adhoc delegates certified by the 2nd Defendant was not used during the 1st Defendant’s Ogun State Governorship Primary Election conducted on 2nd May, 2022 at Olusegun Obasajo Presidential library, Abeokuta, Ogun State.”
Thus, by the deposition of the Appellant at paragraph 7, the delegates to vote at the indirect primary election of the Governorship on 25th May, 2022 to choose the 1st Defendant’s flag bearer is attached and marked Exhibit JAL 5 and by the provisions of Section 84(12) of the Electoral Act, 2022 (as amended) does not envisage political Appointees. Therefore, by virtue of the questions for determination raised in the originating summons and the supporting Affidavit, the complaints of the Appellant can be situated within the narrow compact of Section 84 of the Electoral Act 2022 and Section 285(14) (a) of the 1999 Constitution of the FRN (as amended) which complaints vest the Federal High Court (the trial Court) the jurisdiction to entertain and adjudicate on the suit of the Appellant. The suit or complaint of the Appellant does not fall within the internal or domestic Affairs of the 1st Defendant. This is because the affidavit evidence and exhibited documents clearly show on record before us that there was apparent breach of Section 84(12) of the Electoral Act 2022 and by virtue of Section 84(13) of the same Act, the Appellant can approach the trial Court with his grievances.
Having said the above, I endorsed and indeed adopt the reasoning and finding of my learned brother in the lead judgment as mine.
Appearances:
Chief Kanu G. Agabi, SAN and Ola Olanipekun, SAN with him, Chika Odoemene, Esq. and Mary Francis Orji, Esq. For Appellant(s)
Chief Chris Uche, SAN and Goddy Uche, SAN with him, Marvel Akpoyibo, Esq. and Ehi Uwai, Esq. for the 1st and 3rd Respondents. For Respondent(s)