MOHAMMED ABDULLAHI BARAU v. HON. ABBAS ADAMU WOKDUNG & ORS
(2018)LCN/12167(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2018
CA/J/335/2018
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“Let me first make the point that where an issue is subsumed in another on which the Court has made a pronouncement, it is not bound to go ahead and make a separate pronouncement on the issue(s) so encompassed by the other one: see Adebayo v. A.G. Ogun State (2008) LPELR-80, p.14 (S.C.); Okonji v. Njokanma (1991) 1 NWLR (PT. 202) 130 @ 146; Owuru v. Adigwu (2018) 1 NWLR (PT. 1599) 1 @ 16 -20 (S.C.); Anyaduba v. NRTC Ltd (1992)5 NWLR (PT. 243) 535 (S.C.); 7UP Bottling Co. Ltd v. Abiola & Sons Ltd (2001) 6 S.C. 73 @ 103, (2001) 13 NWLR (PT. 730) 469. It is therefore not a true reflection of the position of the law to say that in every case the Court is duty bound to pronounce separately on every point argued and its failure to do so automatically results in fair hearing. It all depends on the issue at stake and how connected they are to one another. That is even as it has been said, too, that failure to decide on every issue canvassed before a Court is rather abdication of its duty by the Court and not denial of fair hearing so whether an appellate Court will interfere will depend on whether miscarriage of justice was shown to have been occasioned: Irolo v. Uka (2002) 14 NWLR (PT. 786) 195 @ 237 – 238 (S.C.).” PER BOLOUKUROMO MOSES UGO, J.C.A.
EVIDENCE: WHERE THE EVIDENCE IS UNCHALLENGED
“And coming to the issue of conflict and need to call oral evidence to resolve, especially as it relates to the alleged decision of the 2nd respondent setting aside its Appeal Committee’s findings, appellant did not present anything to back up its contention, thus leaving the lower Court with only the findings of 2nd respondent’s Appeal Committee tendered by 1st respondent as Exhibit AAW7. It surely cannot be seriously asserted that a decision as important as the one alleged to have been made by 2nd respondent setting aside the Written Findings of its Appeal Committee would just be made verbally. In any event, it is not only by oral evidence that conflicts in affidavit evidence are resolved, documents before the Court, as in 2nd Respondent’s Appeal Committee’s Report (Exhibit AAW7) would suffice: see Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT. 135) 688. Besides, as I have shown earlier, 2nd respondent who appellant claims set aside the Finding of its Appeal Committee said 1st respondent did not lead ‘any shred or iota of evidence’ to show that he was the one properly elected as its flag bearer. If there was no such evidence from appellant, where would be the conflict of evidence and resolution of it, I ask again? Appellant, I agree with 1st respondent, was not denied fair hearing by the lower Court; accordingly, I also resolve this issue against appellant.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
MOHAMMED ABDULLAHI BARAU Appellant(s)
AND
1. HON. ABBAS ADAMU WOKDUNG
2. ALL PROGRESSIVES CONGRESS (APC)
3. PLATEAU STATE INDEPENDENT ELECTORAL COMMISSION (PLASIEC) Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
This appeal is from the judgment of the High Court of Plateau State of 8th May 2018 granting the reliefs of first respondent in his originating summons against the appellant and 2nd and 3rd respondents.
The relevant facts of the case are that 2nd respondent herein, the All Progressive Congress (APC), scheduled its primary elections for the Chairmanship of Kanam Local Government Council of Plateau State for the 18th of November, 2017. The said primary election eventually held as scheduled, but was aborted midway when violence erupted. A new date of 21/11/2017 was therefore taken. It is noteworthy that appellant who claims to have also bought nomination form for that same primary election was by his own admission not present for the said primary prior to its abortion; only first respondent and one Idris Musa Suleiman presented themselves as aspirants when voting commenced. First respondent maintains that appellant stepped down from that election and so was not eligible to contest the rescheduled 21/11/2017 election which, he insists, is just a continuation of the inconclusive election of 18/11/2017 of four days earlier.
Appellant on his own part while admitting that he was absent from the first primary election only on grounds of ill-health, asserts that he was represented by an agent. He has never disclosed the identity of his said agent. First respondent claims, additionally, that appellant did not even show up for 2nd respondent’s screening exercise and so was not even certificated for the election.
Suffice it to say that the rescheduled 21/11/2017 primary election eventually held as planned but this time Idris Musa Suleiman who participated in the botched 18/11/17 primary did not show up, rather it was appellant who surfaced. First respondent maintains, and it is not contested, that at the point of voting he protested appellant’s participation but was overruled by the Plateau State Chairman of 2nd respondent.
At the conclusion of voting, appellant was declared winner of the party primary having said to have polled 172 votes as against 95 votes of first respondent.
First respondent appealed the said declaration of appellant to 2nd Respondent’s Appeal Committee. That same Committee was said to have also received and heard petitions from the same primaries of 2nd respondent in the other Local Government Council of Plateau State.
The said Three-Man Appeal Committee, after hearing the petition which appellant also defended with his counsel, allowed the appeal, upheld the petition and declared 1st respondent as the authentic candidate of 2nd respondent for the general elections to be conducted by 3rd respondent for Kanam Local Government Council Chairmanship.
Second respondent was not disposed to obeying the verdict of its Appeals Committee in favour of 1st respondent. That prompted 1st respondent to approach the High Court of Plateau State with an originating summons seeking three reliefs against 2nd respondent, the Plateau State Independent Electoral Commission and appellant as 1st, 2nd and 3rd defendants. He claimed as follows:
1. A declaration that the plaintiff by virtue of the decision of the Appeal panel of the 1st defendant is entitled to be sponsored as the candidate of the 1st defendant for the Local Council, Elections to be conducted by the 2nd defendant on the 17th February, 2018 into the seat of Chairman, Kanam L.G.C.
2. An order of injunction restraining the 2nd defendant from accepting, recognizing the 3rd defendant or any other person apart from the plaintiff as a candidate of the 1st defendant for the Local Council Elections of 17/2/2018 into the seat of Chairman, Kanam L.G.C.
3. An order restraining the 2nd defendant from issuing any certificate of Return to the 3rd defendant should the 1st defendant win the Local Council Election to be conducted on 17/2/2018 into the seat of Chairman, Kanam L.G.C.
4. An order of Court conferring the benefit of the Local Council Election into the seat of Chairman, Kanam L.G.C. to be conducted on 17/2/2018 on the plaintiff should the 1st defendant win the election.
5. Cost of this action.
He framed the following three questions for determination by the court:
1. Whether given Article 21(c ) (iii) of the Constitution of the 1st defendant ‘Exhibit -AAW2’, the decision of the Appeal Panel – Exhibit AAW7 of the 1st defendant, is not binding on the 1st defendant, and if it binds it, whether the plaintiff is not entitled to be sponsored as the candidate of the 1st defendant to contest the Local Council Election into the seat of Chairman, Kanam L.G.C. to be held on 17/2/2018.
2. Whether it is not the plaintiff as against the 3rd defendant that is the one entitled to any benefit from the outcome of the Local Council Elections to be held on 17/2/2018 should the 1st defendant win the election into the seat of Chairman Kanam L.G.C., the election to be conducted by the defendant given Exhibit AAW7.
3. Whether the 3rd defendant who never challenged the decision of the Appeals Committee Exhibit AAW7 in any Court of law and having not been screened by the screening committee of the central Zone pursuant to the Guidelines, Exhibit AAW4 of the 1st defendant is qualified to even be sponsored by the 1st defendant as its candidate for the seat of Chairman Kanam L.G.C. Plateau State in the Local Council elections to be held on 17/2/2018.
First respondent personally swore to an 18-paragraph affidavit in support of his summons and annexed to it relevant documents including but not limited to the Constitution of 2nd respondent (APC) (Exhibit AAW2), the Report of the Central Zone Screening Aspirants for Councillorship and Chairmanship primaries for 2nd respondent (Exhibit ‘AAW5’), Report of 2nd respondent’s Committee on its Rescheduled Kanam Local Govt Area Council Primaries held on 21/11/2017 to which the Result showing 1st respondent to have scored 95 votes, as against appellant’s 172 votes (Exhibit AAW6), and finally the Report of the Appeal Committee of 2nd Respondent that looked into his petition, and declared him as Winner of the said election and flag bearer of the APC (2nd Respondent) for the 2018 Local Government Elections Kanam LGA of Plateau State Exhibit ‘AAW7’.
First respondent’s case in the originating summons was that appellant was not screened and certificated for the Chairmanship Primary of 2nd respondent for Kanam Local Government Council, did not participate in the botched 18/11/2017 primary and had in effect stepped down from that election and so was not qualified to contest its rescheduled 21/11/2017 election which he was said to have won. He maintained that he was vindicated by the 2nd respondent’s Appeal Panel which declared him winner of the said primary and the flag-bearer of 2nd respondent for the general elections.
Appellant as 3rd defendant to the summons filed a Memorandum of Appearance which he labeled ‘Conditional’ even as he also personally deposed to a copious 25-paragraph counter-affidavit with several exhibits attached in response to the merits of the originating summons. He also filed a 26-page Written Address in support of his counter-affidavit. I shall revisit the effect of this response at the appropriate time.
All Progressives Congress responded to the summons with an even more voluminous counter-affidavit of 35 paragraphs. It also filed a written address of 16 pages to canvass its position.
First respondent, in response, deposed to two Further Affidavits to further join issues with appellant and 2nd respondent on their assertions in their counter-affidavits.
Third respondent (Plateau State Independent Electoral Commission, PLASIEC) did not respond.
In its judgment of 8th May 2018, the Plateau State High Court took up the points raised by appellant to the competence of the originating summons as well as the arguments on its merits including alleged lack of standing in 1st respondent and absence of cause of action in him but found no merit in any of them, looked into the complaints of 1st respondent in the summons, found merit in them, resolved all his questions in his favour and granted all his four relief as prayed and upheld 2nd Respondent’s Appeal Committee declaring him as the winner of 2nd respondent’s primary election for Kanam Chairmanship and its flag-bearer for the general election.
Dissatisfied with that decision, appellant lodged the instant eighteen-ground Notice of Appeal against it on 28th May 2018 and formulated for the determination of this Court the following five issues:
1. Whether the lower Court had jurisdiction to entertain the suit.
2. Whether the lower Court accorded the appellant fair hearing in the determination of the suit.
3. Whether the lower Court was right when having found that the originating summons did not comply with the Rules of the High Court, he proceeded to determine the suit as an irregularity?
4. Whether the lower Court was right in suo motu raised (sic), granted reliefs and resolving issues based on his personal knowledge?
5. Whether the lower Court’s interpretation of Exhibit AAW2 is correct.
Before I go into the argument of parties on these issues, let me first dispose of the RESPONDENT?S NOTICES filed by 1st and 2nd respondents.
First respondent in his brief of argument filed on 03/10/2018 adopted the issues as formulated by appellant and also filed along with the said brief a five-ground Respondent’s Notice pursuant to Order 9 Rules 1 and 2 of the Rules of this Court 2016. He did not try to obtain from this Court any order extending time for him to file his said Respondent’s Notice as late as 3rd October 2018 – about one hundred and twenty-four (124) days after service of appellant’s Notice of Appeal on 28/05/2018 – despite the provisions of Order 9 Rule 4 of the Rules of this Court 2016 relating to Respondent’s Notice stating clearly that:
4. Any Notice given by a Respondent under this Order must be served on the appellant and on all the parties to the proceedings in the Court below who are directly affected by the contentions of the Respondent and must be served
(a) In the case of an appeal against an interlocutory order, within fifteen days after the service of the notice of appeal on the Respondent; and
(b) in any other case, within thirty days, after the service of the notice of appeal on the Respondent.
What is more, he even omitted to formulate any issue(s) for determination in his said incompetent Respondent’s Notice of Appeal; he simply proceeded to argue directly his five grounds. Little wonder his counsel Mr. Shaibu who filed the said Notice on his behalf was quite accommodating and not willing to take any issue with 2nd Respondent’s own equally incompetent Respondent’s Notice despite our observations at the hearing that 2nd respondent’s own Notice may also be defective and invalid. Those who live in glass houses, they say, don’t throw stones.
And talking about the 2nd Respondent’s own Respondent’s Notice, it was filed on 15/10/2018, precisely thirteen days after that of even 1st respondent. Like 1st respondent, it also filed its Notice without an order of Court extending time to file it that late. What is more, respondent simply prayed in its invalid Respondent’s Notice that the appeal be allowed. What is its grouse in the Respondent’s Notice? It is simply that there were conflicts in the affidavits of parties before the lower Court so it was not a proper case for determination by originating summons. It complained that the trial Court should have ordered pleadings in view of ‘the hostility of the facts of the case as reinforced by the 1st respondent’s further and Better Affidavit.’
Meanwhile same 2nd respondent had argued at paragraph 4.04 of its Written Address (see p. 201 of the records) before the lower Court as follows:
4.04.My lord the plaintiff has by no iota or shred of evidence shown that the 3rd defendant lacked the capacity to contest the primary election of the 1st defendant for the purpose of the 1st defendant to produce a candidate it would sponsor for the chairmanship position of Kanam Local Government Council.
The entire dispute in the lower Court was about appellant’s (then 3rd defendant’s) lack of capacity to contest the primary election of the 1st defendant in issue, so if the plaintiff (now 1st respondent) produced ‘no iota or shred of evidence’ in that regard to prove his assertion that appellant was not qualified, can one seriously talk about conflict in ‘evidence’ to resolve by calling oral evidence’ If there was ‘no shred or iota of evidence’ on one side, what will the Court be resolving’ Second respondent is contradicting himself. And he is not supposed to do that. An appeal is a continuation of the case at the lower Court so parties cannot change their case at the appellate Court. That doesn’t need citation of authorities but if one or some are needed, see Ajide v. Kelani (1985) 3 NWLR (PT. 12) 248 (S.C.); Oredoyin v. Arowolo (1989) 4 NWLR (PT. 114) 172; Tinubu v. I.B.M. Securities Plc (2011) 12 S.C (PT 11) 162.
Besides, Respondent’s Notice cannot be employed to simply set aside a judgment at the instance of a respondent, as is sought by 2nd respondent here. Regardless of whether Respondent’s Notice is brought under Rule 1 of Order 9 of the Rules of this Court for variation of the judgment appealed from, or pursuant to Rule 2 of Order 9 for affirmation of the same judgment on grounds other than the one relied on by the lower Court, the party filing respondent’s Notice cannot pray for the judgment appealed from to be set aside in its entirety as sought by 2nd respondent. The use of Respondent’s Notice is to salvage either wholly or at least partly the judgment appealed from. It cannot be employed to ask the Court to completely set aside a judgment. Order 9 Rules 1 and 2 of the Rules of the Court of Appeal 2016 pursuant to which 1st and 2nd respondents founded their Respondent’s Notice read thus:
Order 9 – Respondents Notice of Contention
1. A respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
2. A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.
A respondent proceeding under Rule 1 of this Order for variation admits, at least by implication, that though the judgment is not correct, it is not also totally bad so it should be varied or redeemed to the extent that it is redeemable, whereas under Rule 2 the successful respondent recognizes that the reasons advanced by the lower Court for the judgment may be wrong but contends, nevertheless, that the judgment is sustainable for other reasons, which he wishes to advance at the hearing of the appeal.
In other words, regardless of whether it is Rule 1 or 2 of Order 9 a respondent proceeds, the aim is to do a salvage job and not to wholly set aside the judgment appealed from as is sought by 2nd respondent here. Besides, because of its very nature and aim as explained here, a Respondent’s Notice can only lie at the instance of a party in whose favour the judgment appealed from was made; it cannot lie at the instance of a party against whom judgment was entered in the Court below as in the prayer of 2nd respondent that the appeal be allowed and the judgment of the lower Court be set aside in its entirety. Such a prayer and particularly on the grounds that the judgment was wrong in its entirety as alleged by 2nd respondent is only attainable by way of cross-appeal and not Respondent’s Notice under Order 9 of the Rules of this Court. The correct position of the law on the use of the two processes was clarified by the apex Court as follows in Oguma Associated Companies (Nig.) Ltd v. I.B.W.A Ltd (1988) 1 NSCC 395 @ 413 (Nnaemeka-Agu, J.S.C.):
“Where a respondent wants a reversal of a decision, part thereof, or any conclusion of fact in the decision, his proper procedure is by way of cross-appeal.
In the instant case in which the respondent wants a reversal of the decision on Exhibit G in the lower Court, his correct procedure would have been by way of cross-appeal and not respondent’s notice: see Oba Adeyinka Oyeyinka v. B.P. Nigeria Ltd (1972) 1 ALL NLR 45 @ 47 – 48.”
In Ohiaeri v. Akabeze (1992) 1 NSCC 139 @ 151-151 the Supreme Court again made the following clarification:
“The position again is that any aggrieved party who is not satisfied with the conclusion or inference drawn by the trial Court has to appeal before he can urge the Court to draw correct inference or legal conclusion. He cannot as a respondent in an appeal by his own opponent urge the Appeal Court to correct an error or misdirection by the trial court.”
And more pungently in Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (PT. 124) 1, the Supreme Court cited with approval and applied its earlier decision by Udoma, J.S.C., in L.C.C. v. Ogundemuren in Suit No SC/335/69 of 26/11/71 as follows:
“On a true construction, these provisions contemplate that the party applying for variation or confirmation of the judgment was a successful party in the Court below in respect of the part of the judgment in which he requires variation.
“We do not think that even on a liberal interpretation these provisions could ever be held to contemplate a situation wherein an application for variation or confirmation of a judgment on grounds other than those relied on by the Court below would be entitled to ask for a complete reversal in his favour of the finding of fact made or judgment of the Court given against him on certain issues contested in the case, even though the respondent may have succeeded in the Court below on a number of issues.” (Emphasis mine).
Second respondent as already shown did not succeed in even a single issue in the Court below for which it can urge a variation of that judgment by this Court. Respondent’s Notice under Order 9 Rule 1 of the Rules of this Court 2016 is therefore not available to it even on this ground. That is assuming the one it filed over five months after service of the notice of appeal was even competent, which is not the case.
In summary, the Respondent?s Notices of 1st and 2nd respondents being incompetent for all the foregoing reasons ought to be and are here all struck out along with the arguments canvassed by counsel on them.
That leaves the coast clear for me to consider the arguments of appellant and first respondent on the five issues in the appeal, 2nd respondent’s arguments and participation in the appeal having ended with the order striking out its Respondent’s Notice which was its only process in the appeal.
Issue 1: Appellant’s arguments on issue 1 appellant were directed at showing that the case of 1st respondent before the lower Court was incompetent and he lacked locus standi to bring it. Appellant submitted that he had contended before the lower Court that it lacked jurisdiction over the subject matter of the suit which bothered on the nomination or sponsorship of a candidate for an election; that 1st respondent’s cause of action falls within the exclusive jurisdiction of his political party, the 2nd respondent. He said he also contended there that 1st respondent even lacked standing to institute the suit. The emergence of a person as the candidate of a party is determined by the provisions of the constitution of the party or the Law regulating the conduct of the particular election in issue, he argued.
Mr. Obende on appellant’s behalf submitted that in the instant case there is no provision in the Laws regulating the conduct of the Local Government Elections, that is, PLASIEC Law, that confers a right on an aggrieved person to seek redress as in the case of Section 87(9) of the Electoral Act. Counsel argued that Section 87(9) of the Electoral Act is inapplicable to Plateau State Local Government Elections and the lower Court fell into grave error when it imported the exception conferred by Section 87(9) of the Electoral Act into this case.
Once this Court decides the inapplicability of the Electoral Act to this case, he submitted, then the established general principle of law remains that only a political party has the power and the right to determine who to nominate or sponsor as its candidate in an election, the Court or the Electoral body has no vires to interfere. For this he cited PDP v. Sylva (2012) 13 NWLR (pt. 1316) 85 @ 125. It is the Act or Law governing the election or the Constitution of the party that confers jurisdiction on the Court and the right to an aggrieved party to seek judicial redress; that without such stipulation in the prevailing Act/Law the matter of sponsorship or nomination remains the domestic and internal affairs of the party in which there can be no judicial interference.
The recent judicial pronouncements and decisions of the Courts which the lower Court relied heavily on in respect of the nomination of candidates is strictly on account of the provisions of Section 87(9) of the Electoral Act, 2010 which changed the previous provisions of the law, counsel argued. Counsel conceded that Section 87(9) of the Electoral Act 2010 now confers such right of redress on a person aggrieved by the conduct of the party primaries but added that such rights is strictly circumscribed to a person who is able to bring himself squarely within the confines of the said provisions.
The conduct of the Plateau State Local Government elections is not governed by the Electoral Act and 1st Respondent never predicated his case on breach of any provision of the Plateau State Independent Electoral Commission Law but strictly on the Electoral Act which does not enure in his favour, learned counsel argued. The lower Court, appellant argued, not only failed to appreciate this, as he put it, ‘all important issue’ but also failed to resolve it when it was canvassed before him. Counsel submitted that all the cases relied upon by the lower Court for its decision dealt specifically with the provisions of Section 87 of the Electoral Act which did not make provision nor apply to Local Government elections in Plateau State.
That the Electoral Act is not applicable to Local Government elections, he submitted, is made clear by Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 which makes Local Government within the States a matter within the legislative jurisdiction of the State Governments. The Electoral Act, with the exception of Federal and State Elections, he submitted, only contemplates elections into Area Councils constituted in the Federal Capital Territory. He argued that 1st Respondent can only approach the Court to seek judicial intervention to address any perceived wrong arising from the conduct or primary election or the decision of a political party to sponsor a particular party if he is able to show that the law governing the conduct of Local Government elections in Plateau State so provides and if it is shown that any provision of the said law is breached, which is not the case here, he submitted. Counsel for appellant cited a plethora of cases including good old Onuoha v. Okafor (1983) SCNLR 244 and Tukur v. Dalhatu (2003) 16 NWLR (PT. 843) 310 @ 346 in support of his argument that nomination of parties is the internal affair of the political party over which the Courts lack jurisdiction.
Flowing from the lack of jurisdiction in the Court and nomination of candidate being the internal affair of a party, appellant further pressed, respondent also lacked standing to question his nomination by 2nd respondent as its candidate and the lower Court wrong to withhold his contention. He further submitted that 1st respondent did not even discharge the burden on him to show that he was an aspirant at the election; it is immaterial that his name Abass M. Wokdung appeared in the result sheet or the screening committee report of the 1st defendant, he ought to go ahead to show by the documents he submitted to stand the election qualifying him to be on an aspirant; production of the nomination form sworn under the sanctity of an oath will be the only evidence that the plaintiff was a nominated aspirant he claims to be as the plaintiff, he submitted. He said the case of Atago v. Nwuche (2017) 1 NWLR (PT. 1554) 147 @ 164 relied on by the lower Court strongly aids his contention that the 1st respondent did not establish by evidence his locus standi or entitlement to the declaratory reliefs which he sought.
He said 1st Respondent merely deposed in paragraphs 7 and 8 of his affidavit in support of the summons that he was an aspirant at the primary election conducted by the 2nd Respondent for the Chairmanship seat of Kanam Local Government Council but failed to exhibit evidence of purchase or submission of the nomination forms and only attached his membership card and National Identity card-Drivers’ licence. These exhibits are insufficient to confer locus standi on him for the purpose for the nomination or sponsorship as a candidate of a political party, his counsel argued citing Atago v. Nwuche (supra) @ 164.
Appellant urged us to resolve this issue in his favour and find that the plaintiff had no locus standi to maintain the action before the lower Court.
Mr. Shaibu for first respondent in his response relied on 2nd respondent’s Guidelines for the election in issue which guidelines he tendered and marked Exhibit -AAW3 in the affidavit supporting his summons. He directed our attention to Clause 4 of the said Guidelines where 2nd respondent stated that:
4. Procedure for nomination (Part iv Section 24(1) of PLASIEC Law 2017, Political parties shall ensure that processes of nomination of their candidates for any election comply with the the provisions of the PLASIEC LAW, Constitution of the Federal Republic of Nigeria (1999) (as amended) and the Electoral Act 2010 (as amended).
He also relied on Article 2 of the Constitution of 2nd respondent, Exhibit AAW2, where 2nd respondent expressly made its Constitution ‘subject to the Constitution of the Federal Republic of Nigeria 1999 as amended and any other laws for the time being in force in the Federal Republic of Nigeria.’
He argued that the Constitution of the political party is the contract between it and its members and where the party refuses to obey any of its terms, the Court has jurisdiction to interpret and give effect to it. Flowing from that, Mr. F. O Shaibu argued, an aggrieved aspirant in a party primary can approach the Court for redress. He cited Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (PT. 1275) 30 @ 60 for this proposition. Counsel also submitted that 1st respondent made out his locus standi and referred us to his depositions in paragraphs 7 and 8 of the supporting affidavit which he said were not even denied by the appellant. He also referenced 1st respondent’s Further Affidavit and the Nomination and Screening Certificates he attached there as Exhibits AAW8 and 9. He submitted that if there was one person who lacked locus standi it is appellant who was not a valid candidate at the election. Counsel urged us to resolve this issue in favour of 1st respondent.
Resolution of issue
This contention of appellant regarding the Electoral Act 2010 and its Section 87(9) conferring a right of action on an aspirant in a primary election of a political party to approach the Courts (Federal and State High Courts) for redress regardless of whatever is contained in the Constitution of the political party concerned and the Electoral Act’s inapplicability to Local Government election in the various States of this country and a fortiori the instant one in Plateau State and the lower Court’s consequential lack of jurisdiction to entertain the case of 1st respondent’s and 1st respondent’s further consequential lack of standing to complain of such an ‘internal affair’ of the party, as appellant calls it, is a recurring theme in all of appellant’s other issues too as it shall be soon shown. In fact, it seems to be the main pivot of his case. But is appellant correct? I do not think so. Incidentally, this same issue of inapplicability of Section 87(9) of the Electoral Act 2010 to Local Government Elections in the States was canvassed in exactly the same manner in the similar Local Government Election case of Chief Koku Gariga & Ors. v. Bayelsa State Independent Electoral Commission & Ors (2012) LPELR 9294 (CA).
There, this Court (Dattijo Mohammed, J.C.A., as he then was, with his brothers Galinje, also J.C.A as he also then was, and Awotoye, J.C.A.) took up this argument and rejected it in overturning the decision of the trial High Court of Bayelsa State which had reasoned like appellant and declined jurisdiction over Council Election. This Court reasoned thus at p. 26 – 29:
“Learned respondents counsel have argued that neither the Law establishing the 1st respondent nor the Local Government Law in Bayelsa State provide for the regulation of political parties and or makes it mandatory for the 1st respondent to accept the list of candidates submitted by the political parties. The two legislations could not have so provided since particularly by virtue of item 56 of the 2nd Schedule to the 1999 Constitution that function, being under the exclusive legislative list, belongs to the National Assembly.
It is in further exercise of this same powers that the National Assembly in S. 33(1), S. 33 and S. 87(4)(d)(i) and (ii) and (9) of the 2010 Electoral Act as under provides:
87(9) Notwithstanding the provision of the Act or rules of a Political party, an aspirant who complains that any of the provision of this Act and the guidelines of a Political party for election may apply to the Federal High Court or the High of a State or Federal Capital territory, for redress.
The foregoing provisions of both the extant Electoral Act as well as the Constitution of the Political party on which platform the appellant’s sought to contest the Chairmanship seats of their Councils bring to the fore at least four unassailable realities:
“Thirdly, a party’s prospective candidate for a particular election that has any grievance pertaining the procedure the party adopted in the selection or election of its flag-bearer for the election is entitled under S. 87(9) supra to seek redress in Court.”
This decision was taken on appeal to the Supreme Court but was upheld. The decision of the Supreme Court is Peretu & Ors v. Gariga & Ors (2013) 5 NWLR (PT 1348) 415. There, Rhodes-Vivour, J.S.C., had this to say at p. 442, E-F:
Choosing, nominating, sponsoring of candidates for a political party is the internal affair of the political party. It is a question that is non-justiciable, but it becomes justiciable when a candidate who participated in the choosing process, usually the primaries, complains about the conduct of the primaries. See Section 87(9) of the Electoral Act.
This Court is bound by its decision (see Usman v. Umaru (1992) NWLR (PT. 254) 377 (S.C); Young v. Bristol Aeroplane Co. Ltd (1994) ALL E.R. 293, 300; Igbani v. Bayelsa State Independent Electoral Commission & Ors (2013) LPELR- CA/PH/304/2011) and even more so by decisions of the apex Court.
What is more, as if conscious of the application of the Electoral Act, the 3rd Respondent, the Plateau State Independent Electoral Commission, whose battle appellant seems to be fighting, clearly stated in Clause 4 of its Guidelines for the 2018 Local Government Elections in issue, which 1st respondent exhibited as Exhibit AAW2, that:
5. Political parties shall ensure that processes for nomination of their candidates for any election comply with the provisions of the PLASIEC LAW, Constitution of the Federal Republic of Nigeria (as amended) and the Electoral Act 2010.
It did not stop there but proceeded to further underscore the importance it attached to its Guidelines and the need for political parties to respect them, including the Electoral Act 2010 now assailed by appellant. It sought to give teeth to the said Guidelines by closing it with this statement (see p. 69 of the records):
All political Parties, their leaders, Members, Supporters and candidates shall adhere to all the existing Laws and Regulations as mentioned in the Guidelines pertaining the Elections and the conduct of Political Parties, as established by the PLASIEC LAW, Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria 1999 (as amended), and shall do nothing whatsoever, individually or collectively, to undermine, disrespect or circumvent them.
Failure to comply with any of the above Guidelines and other provisions of the Law shall attract appropriate sanctions as provided for in the PLASIEC LAW 2017.
It has not changed position if its indifference to the stance of appellant in this case is anything to go by.
The other contention of appellant that 1st respondent did not disclose his standing to sue does not seem to me made with any seriousness. Not only was appellant’s status in the primary election not disputed by appellant in his counter affidavit where he simply also asserted that 1st respondent also contested that election but he defeated him, 1st respondent as plaintiff in paragraphs 7, 8 and 9 of his supporting affidavit swore that he bought forms for the election, was screened successfully to contest and did contest the said primary election. He exhibited his forms and screening results for the election. I don’t know what else appellant wanted him to do.
In summary, I hold that the lower Court possessed jurisdiction to hear 1st respondent’s case; his complaint was not internal affair of 2nd respondent; he had standing to approach the Court and disclosed it in his summons. Issue 1 is accordingly resolved against appellant.
Issue 2: Appellant’s complaint here is that he was denied fair hearing by the lower Court so this Court should intervene; that the result of denial of hearing is nullification of the entire proceedings so this Court should also so declare and nullify the judgment of that Court. For instances of denial of fair hearing by that Court he refers us to the argument he made in issue 1 about the Electoral Act 2010 not applying to Local Government Elections and the consequential inapplicability of the cases decided under that Act to the instant case, all of which I have incidentally just resolved against him. He complained that the lower Court did not resolve those issues but simply proceeded to resolve the issues connected to its jurisdiction and the competence of the suit without considering his arguments. He said he also made arguments on the validity of the further affidavit of 1st respondent but the lower Court again said nothing about it.
He also argued that there were conflicts in the affidavits of parties particularly on whether or not 2nd respondent upheld the findings of the Appeals Committee and whether the said committee was an organ of 2nd respondent. All these, he submitted, needed resolution by calling oral evidence but that was not done, that the lower Court simply proceeded to give judgment.
First respondent in response argued that what appellant is doing here is to call a dog a bad name to hang it. He submitted that the lower Court was fair and balanced to all parties in the case and did not deny appellant fair hearing. Taking up the Further Affidavit he filed, he said he cannot be denied his right to respond to appellant?s counter affidavit before the lower Court simply because the Practice Directions of that Court did not expressly provide for Further Affidavit.
To deny him that right, would deny him his right to fair hearing and so run foul of the 1999 Constitution of this Country, counsel submitted. As for the alleged need to call oral evidence to clear conflicts in affidavit evidence, appellant argued that oral evidence is not the only way to clear conflicts, documents he said may suffice for that purpose. In any event, he submitted, there were really no conflicts in affidavits that required calling oral evidence. Appellant’s reliance on his alleged appeal to 2nd respondent as the basis of that conflict cannot hold water, he submitted, because appellant did not present to the lower Court the findings of 2nd respondent that set aside the decision of its Appeal Committee. The only way to prove the existence of a decision of the Tribunal, Committee or quasi judicial body is production of the decision, he submitted, citing A.G. Plateau State v. A.G. Nasarawa State (2005) ALL FWLR (PT. 266) 1227, 1236 (S.C).
Appellant having failed to tender the said decision of 2nd respondent, there was no real conflict on it for the lower Court to resolve, he argued.
Resolution of issue
Let me first make the point that where an issue is subsumed in another on which the Court has made a pronouncement, it is not bound to go ahead and make a separate pronouncement on the issue(s) so encompassed by the other one: see Adebayo v. A.G. Ogun State (2008) LPELR-80, p.14 (S.C.); Okonji v. Njokanma (1991) 1 NWLR (PT. 202) 130 @ 146; Owuru v. Adigwu (2018) 1 NWLR (PT. 1599) 1 @ 16 -20 (S.C.); Anyaduba v. NRTC Ltd (1992)5 NWLR (PT. 243) 535 (S.C.); 7UP Bottling Co. Ltd v. Abiola & Sons Ltd (2001) 6 S.C. 73 @ 103, (2001) 13 NWLR (PT. 730) 469.
It is therefore not a true reflection of the position of the law to say that in every case the Court is duty bound to pronounce separately on every point argued and its failure to do so automatically results in fair hearing. It all depends on the issue at stake and how connected they are to one another. That is even as it has been said, too, that failure to decide on every issue canvassed before a Court is rather abdication of its duty by the Court and not denial of fair hearing so whether an appellate Court will interfere will depend on whether miscarriage of justice was shown to have been occasioned: Irolo v. Uka (2002) 14 NWLR (PT. 786) 195 @ 237 – 238 (S.C.).
And coming to the issue of conflict and need to call oral evidence to resolve, especially as it relates to the alleged decision of the 2nd respondent setting aside its Appeal Committee’s findings, appellant did not present anything to back up its contention, thus leaving the lower Court with only the findings of 2nd respondent’s Appeal Committee tendered by 1st respondent as Exhibit AAW7.
It surely cannot be seriously asserted that a decision as important as the one alleged to have been made by 2nd respondent setting aside the Written Findings of its Appeal Committee would just be made verbally. In any event, it is not only by oral evidence that conflicts in affidavit evidence are resolved, documents before the Court, as in 2nd Respondent’s Appeal Committee’s Report (Exhibit AAW7) would suffice: see Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT. 135) 688. Besides, as I have shown earlier, 2nd respondent who appellant claims set aside the Finding of its Appeal Committee said 1st respondent did not lead ‘any shred or iota of evidence’ to show that he was the one properly elected as its flag bearer. If there was no such evidence from appellant, where would be the conflict of evidence and resolution of it, I ask again? Appellant, I agree with 1st respondent, was not denied fair hearing by the lower Court; accordingly, I also resolve this issue against appellant.
Issue 3: Whether the lower Court was right when having found that the originating summons did not comply with the Rules of the High Court, he proceeded to determine the suit as an irregularity?
Appellant here attacked the treatment of the lower Court of its arguments on 1st respondent’s alleged non-compliance with Order 6 Rules 3(1) and 5 of its Rules which provide as follows:
Ord.6 R. 3(1) Every writ of summons shall include sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims.
R.5 Where a plaintiff sues by a legal practitioner, the originating summons shall be endorsed with the plaintiff’s address and the practitioner’s name or firm or address of his within the jurisdiction…
His counsel Mr. Obende argued that these two provisions were not met by the originating summons of 1st respondent; that the summons lacked particulars and there was also no address of 1st respondent in it. Counsel made quite some heavy weather of the word ‘shall’ to say it meant the said requirements were mandatory.
Counsel complained that the lower Court actually agreed with appellant that 1st respondent did not include his address in the summons in compliance with Rule 5 of Order 6, but then turned around to hold that it was a mere irregularity especially as appellant had not suffered any miscarriage of justice from that omission and more so when there is no requirement in its Rules that the Registry should not accept for filing a summons without address of plaintiff. The lower Court, counsel argued, was wrong in that decision especially when 1st respondent did not take any steps to remedy the non-compliance. Rules of Court are meant to be obeyed and the failure to comply with it in this case regarding the address of 1st respondent rendered the summons incompetent and robbed the court of jurisdiction, counsel argued, citing Equity Bank Nig. Ltd v. Halilco Nig. Ltd (2006) ALL FWLR (PT. 337) 438, 452 A-C. (C.A.).
In response, Mr. Shaibu for 1st respondent argued that his client’s summons was competent. He pointed out that the said summons contained the address of 1st respondent’s legal practitioner, unlike Equity Bank Nig. Ltd v. Halilco Nig. Ltd where the summons did not contain even the address of counsel to plaintiff. Citing Dada v. Ogunremi (1962) 2 SCNLR 417, 422 and Belgore v. Ahmad (2013) 8 NWLR (PT. 1355) 60, 91, Mr. Shaibu argued that in any case Rules of Court do not confer jurisdiction on Court. Counsel urged us to resolve this issue against appellant.
Resolution of issue
True, these alleged non-compliances with the Rules of the Plateau State High Court were taken before the lower Court. On the first ground of lack of particulars in the summons in compliance with Rule 3 of Order 6, the Court in its judgment said:
“I find and I am of the view that what the Rules of Court demand in the circumstance is a concise statement of relief or remedy claimed with sufficient particulars so as to identify the cause of action the plaintiff is claiming. This has been, to my mind, taken care of by the reliefs and with particulars.”
It then went on to add that assuming the said relief sought is not concise and without particulars, it is not a fundamental mandatory requirement to be independently/separated stated whose non-compliance could affect the validity of the suit. I am in total agreement. The requirement of Ord. 6 R. 3 of the Rules of the High Court of Plateau State is that ‘Every writ of summons shall include sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims.’ First respondent in his summons, to the understanding of the Court, gave sufficient particulars of his cause of action, namely, 2nd respondent’s wrongful adoption of appellant as winner of its Kanam Local Government Council Chairmanship primaries despite the finding and declaration of its Appeals Committee upholding his petition and declaring him as its authentic candidate. Appellant filed copious counter affidavit loaded with several documents to contest that claim of 1st respondent. It is therefore not open to him to complain about insufficient particulars, which complaint in itself suggests that appellant did not quite understand what he resisted so fiercely at the lower Court.
As for the issue of omission of address of 1st respondent/plaintiff in the originating summons, it has to be understood that the requirement of addresses of plaintiff and his/her legal practitioner in Rule 5 of Order 6 of the Rules of the lower Court is simply to ease service of processes inter partes. This is made clearer even by Sub-rule 2 of the same Order 5 stating that: “Where the plaintiff sues in person, the originating summons shall be endorsed with (a) the address of his place of residence and, if his place of residence is not within jurisdiction or if he has no place of residence, the address of a place within jurisdiction at or to which documents for him may be delivered or sent, (b) his occupation and (c) an address for service.”
First respondent who initiated this action may not have given his own address on the body of the originating summons, but he gave that of his counsel, F. O. Shaibu Esq. and appellant has not complained that he had any difficulty serving processes on 1st respondent through his said counsel on his address in the summons.
One must not also forget to mention that first respondent personally swore to an affidavit in support of his originating summons and there gave his address. That process was served along with the summons. So what is the basis of appellant’s complaint about absence of 1st respondent’s address on the summons’ Nothing other than a desire by appellant to cling to very dry technicality, no matter how tenuous, in the hope that it may pay dividends. Yes, the Courts will insist on complying with Rules of Court, but it will not be slavish in that quest to the point of comprising its primary responsibility of doing justice between parties. The Supreme Court (Adekeye, J.S.C.) in Oloruntoba-Oju v. Abdulraheem (2009) ALL FWLR (PT 497) 1, 29 could not have put it better when it said that ‘Courts are set up to do substantial justice and in the pursuit of this, all forms of technicalities which will act as a detriment to the determination of the substantial issues between the litigants must be shunned. While recognizing that rules of Court should be complied with by parties to a suit, it is also the interest of justice that parties should be afforded a reasonable opportunity in appropriate cases for their claim to be adequately investigated and properly determined on merit.”
That is even as it is equally true that Rules of Court do not confer jurisdiction on Court (Dada v. Ogunremi (1962) 2 SCNLR 417, 422; Clement v. Iwuanyanwu (1989) 3 NWLR (PT. 107) 39, 50) neither does the use of the word ‘shall’ in Rules of Court imply mandatory obedience with fatal consequences for non-compliance as it usually is in statutes (Ogigie v. Obiyan (1997) 10 NWLR (PT. 524) 179). Besides, if appellant really believed the summons served on him was defective, his remedy is to apply in limine to set it aside (Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT. 109) 250, 277, Oputa, J.S.C.); he cannot join issues with 1st respondent on the merits of the summons by filing counter affidavit and making submissions on it and then turn around to raise the issue at final address stage. Appellant has by his conduct waived the non-compliance:Uchendu v. Ogboni & Ors (1999) 5 NWLR (PT. 603) 337 @ 357 (S.C); C.C.B. (Nig.) Plc v. A-G., Anambra State [1992] 8 NWLR (pt. 261) 528 at 547; (Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT. 109) 250, 277.
For all the foregoing reasons, issue 3 is also resolved against appellant.
Issue 4: Whether the lower Court was right in suo motu raising and granting reliefs and resolving issues based on his personal knowledge?
Appellant’s complaints here were also multifaceted. First, he complained that even though 1st respondent identified specific Sections of 2nd respondent’s Constitution he wanted the lower Court to interpret, the Court went beyond those provisions to also pronounce on Articles 18, 20, 22 and 33 of that Constitution that were not among the ones identified by 1st respondent. He complained that the lower Court did not even ask parties to address it on those provisions even as its decision on them impacted on the issues before it especially as it concerns the validity of the Appeal Committee that declared 1st respondent as the authentic candidate of 2nd respondent. Appellant then went on to resuscitate his old complaint of need for the lower Court to call for oral evidence to resolve the issue of whether 2nd respondent did not overrule its said Appeals Committee.
Appellant also submitted that the lower Court granted a relief not sought for by 1st respondent when it went on to order 2nd respondent (APC) to withdraw its sponsorship of appellant and the Certificate of Return it had already issued appellant. By those Orders, he argued, the lower Court played Father Christmas.
In response, Mr. Shaibu for 1st respondent citing Schroeder & Co. v. Major & Co. Ltd (1989) 2 NWLR (PT. 101) I (S.C) argued that in interpreting a document the Court has to pay due regard to the entire document so as to find the correct meaning of the words at stake so the lower Court was in order. He submitted that the Court in its quest to interpret a document must evaluate the document as a whole without restriction, for which he cited J.I.I. Ltd v. Diamond Bank Plc (2016) 6 NWLR (PT 1507) 55; (2012) LPELR-800. Counsel cited Calabar Cement Co Ltd v. Daniel (1991) 4 NWLR (PT. 188) 750, 761 where it was said that where a document is read in pockets of isolation or some portions treated in quarantine, the Court will be in much difficulty to get at the real intention of the parties.
Counsel to 1st respondent argued that contrary to appellant’s contention, 1st respondent deposed to the fact that the State Working Committee of 2nd respondent set up the Appeals Committee in issue as well as other similar ad hoc bodies not expressly provided for in 2nd respondent’s Constitution, a fact he argued was not denied. As for Article 18(iii) of 2nd respondent’s Constitution appellant bitterly complained about, counsel said it has the same effect with Article 13(iv) of the same constitution, to the effect that the State Working Committee has powers to appoint ad hoc committees.
And coming to the order of the lower Court to 2nd respondent to withdraw the certificate of return it had earlier issued appellant, counsel argued that that was a proper consequential order of the court to give effect to its finding in favour of 1st respondent as 2nd respondent’s properly elected candidate and flag-bearer. The Court has powers to make consequential orders to give effect to its judgments, counsel argued citing A.P.C. v. Karfi (2018) 6 NWLR (PT. 1616) 479, 505. Counsel queried the utility of appellant’s argument on this issue; he asked whether it will confer any benefit on him given that he had no counterclaim and the Court has already declared his candidature unlawful. He finally urged us to resolve this issue against appellant.
Resolution of Issues
I must here again express my difficulty in agreeing with the submission of appellant that the lower Court in finding answers to the questions framed by 1st respondent for determination in his originating summons should have limited itself to only Sections or Articles of 2nd respondent’s Constitution mentioned by 1st respondent in his summons. I just wonder how the Court could have made any meaningful interpretation of the issues of law raised by 1st respondent in his summons regarding the creation and validity of the Appeals Committee that upheld his petition, even more so given appellant’s attack of the legality of that Committee and its decision, if it had adopted the course canvassed by appellant. While it is true that the Court is bound to only find answers to questions framed by a claimant in his originating summons, it is quite another thing to say that the Court when called upon to interpret an instrument must also limit itself to only the provisions of the instrument mentioned by the claimant in his summons regardless of how interconnected such provisions may be to others and whether it is only by also reading those other provisions that the Court can give a meaningful interpretation.
The law as I understand it is that in interpreting a document due regard must be given to the entire document to find its correct meaning, rather than take pockets of it: see Schroeder & Co. v. Major & Co. Ltd (1989) 2 NWLR (PT 101) 1 (S.C); Akinbisade v. The State (2007) ALL FWLR (PT. 344) 17, 35 (S.C); Calabar Cement Co Ltd v. Daniel (1991) 4 NWLR (PT. 188) 750, 761. In summary, I fail to see the error let alone substantial one committed by the lower Court to warrant our intervention on this ground.
There is also no substance in the argument of appellant that the order of the lower Court to 2nd respondent to withdraw its Certificate of Return to appellant amounted to playing Father Christmas. That order, I agree with 1st respondent, flowed consequentially from its finding in favour of 1st respondent. The power to make consequential orders in deserving cases inheres in every Court:
SeeA.P.C. v. Karfi (2018) 6 NWLR (PT. 1616) 479, 505. Incidentally, in Mato v. Hember (2018) 5 NWLR (PT. 1616) 258, (2018) ALL FWLR (PT. 925) 146, (2017) LPELR-42675 (SC) copiously cited by the lower Court in its judgment, order for return of Certificate of Election was one of several consequential orders made by the apex Court through the lead judgment of Onnoghen, C.J.N. The Chief justice of Nigeria there even took the trouble to preface his orders with the statement ‘I therefore make the following consequential orders.’ Return of Election Certificate was the 3rd consequential order there. This issue is also resolved against appellant.
Issue 5: Whether the lower Court’s interpretation of Exhibit AAW2 (the Constitution of 2nd respondent, APC) is correct.
In this final issue, appellant concentrated his attack on the lower Courts’ decision upholding the legality of the Appeals Committee of 2nd respondent that upheld 1st respondent candidature as its flag-bearer of 2nd respondent for Kanam Local Government Council Chairmanship general election. Counsel on his behalf argued that the said Appeals Committee is not founded in any organ of 2nd respondent contrary to the finding of the lower Court so it was wrong in upholding its findings. Counsel also queried the lower Court’s interpretation of Article 21 of 2nd respondent’s Constitution as validating the Appeal Committee’s exercise of powers.
In response, first respondent argued that Article 13.8 (vi) and (viii) of 2nd respondent’s Constitution (Exhibit AAW2) empowers its State Working Committee to set up ad hoc committees so it is an organ of that body as the lower Court observed. He further argued that this is not even the forum for appellant to object to the competence of the said Appeals Committee which he duly appeared with his counsel. He cited ANPP v. INEC (2010) 13 NWLR (PT. 1212) 549 and urged us to resolve this issue too against appellant.
Resolution of issue
Now, it is common ground, and further evidenced by the Appeal Committee’s Report, Exhibit ‘AAW7’, that appellant honoured the said 2nd respondent’s Appeal Committee’s sitting by appearing with his counsel, one Mohammed Idris Esq., and there stoutly defended his election with vigour.
He did all that on the merits of the petition against his election. He never challenged the Committee’s legality. Appellant even succeeded in knocking off one leg of the petition against him. When the Committee handed down its decision against him to the effect that he had stepped down from the election in issue having not participated nor proved that he was represented at the initial 18/11/2017 primary, appellant still did not raise any issue about its legality but rather appealed against it on the merits of that decision to the State Working Committee of 2nd respondent through his Exhibit AMB8 which he aptly titled ‘Appeal Against the Report of the Plateau State APC Chairmanship Appeals Committee in respect of Petition No. 5 by Hon. Abbas Wokdung in Respect of the Chairmanship Contest For Kanam Local Government Council of Plateau State.’
That is, appellant himself with his own hand described the Appeal Committee as ‘Plateau State APC Chairmanship Appeals Committee.’ He addressed it that way throughout Exhibit AMB8.
He claims the State Working Committee of 2nd respondent upheld his appeal.
But again like his earlier claims of sending an agent to the 18/11/2017 primaries and ill-health at that time, he has no document to back up such an undoubtedly important decision by 2nd respondent. The decision, if any, ought to be in writing for anybody, including the Court and especially 1st respondent, to see and be satisfied that it was not done whimsically or in bad faith.
I have perused the Constitution of 2nd respondent (Exhibit AAW2) and I agree with the lower Court and 1st respondent that under its Article 18(iii) its State Working Committee, which appellant himself appealed to via Exhibit AMB8, is empowered to set up ad hoc committees including the one appellant with his hand labeled Plateau State APC Chairmanship Appeals Committee that declared him ineligible to contest the 21/11/2017 rerun party primary election, having satisfied itself that appellant did not participate in the initial contest of 18/11/2017. I therefore do not see the mountain appellant is seeking to make here about the lower Court’s reference to Article 21 of 2nd respondent’s Constitution. Whether it is by Article 21 or 13 of 2nd respondent’s Constitution, the State Chapter of 2nd respondent had powers to set up ad hoc Committee like the Appeal Committee that upheld 1st respondent as the candidate of 2nd respondent, a decision 2nd respondent was bound to obey so any complaint about the relevant Article of 2nd Respondent concerning the establishment of its Appeals Committee is de minimis.
The principle is de minimis non curat lex – the law does not concern itself with trifles. Provided there is a provision in 2nd respondent’s Constitution, which there is undoubtedly in its Article 13(iii), for setting up an Appeals Committee, the Court will not be unduly concerned with whether the relief was sought under the wrong provision or that the Court itself proceeded under a wrong provision of that instrument: Uchendu v. Ogboni & Ors (1999) 5 NWLR (PT. 603) 337 (S.C); Yabugbe v. C.O.P. (1992) 4 NWLR (PT. 234) 152 (S.C); Omoju v. F.R.N. (2008) ALL FWLR (PT. 415) 1656, 1671 D-F (S.C). Incidentally, in very similar circumstances in Mato v. Hember (2018) 5 NWLR (PT 1616) 258, (2018) ALL FWLR (PT. 925) 146, (2017) LPELR-42675 (SC), concerning the same All Progressives Congress, the apex Court (Onnoghen, C.J.N.) in upholding an appeals Committee Report, said:
“Thus, since only the plaintiff and the 1st defendant were the contestants, the 2nd defendant [APC] ought to have given effect to the recommendation of its primary election appeal panel which recommended that appellant?s name be submitted to the 3rd respondent, INEC.”
The apex Court, just like the lower Court in this case, went on to do the needful and declared the successful appellant in that case before 2nd respondent’s primary election appeal panel the authentic candidate of APC and proper occupant of the House of Representatives seat in question which the impostor respondent had occupied for close to about two years. I see nothing wrong in the lower Court following the path set by the apex Court. In fact that is what the principle of stare decisis requires the lower Court to do. Similar cases must be decided in a similar way. In any event, if 2nd respondent did not intend to abide by the decision of its Appeals Committee or believed it could just discard it for bad or even no reason at all, why did it set it up in the first place? There should be transparency and fairness.
In the final analysis, I also resolve this final issue against appellant.
In effect, this appeal fails and is hereby dismissed while the decision of the lower Court is affirmed. Parties shall bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I have read before now the draft of the Judgment just delivered by my learned brother, Ugo J.C.A. I completely agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother had painstakingly and admirably considered and resolved all the issues raised for determination in this appeal. I have nothing useful to add, other than to adopt same as mine. I too dismiss the appeal and abide by all consequential orders contained in the lead Judgment inclusive of costs.
TANI YUSUF HASSAN, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA., had obliged me with a copy of the lead judgment just delivered. Having carefully gone through the briefs of argument of the learned counsel vis-a-vis the record of appeal as a whole, I agree that this appeal lacks merit. I adopt both the reasoning and conclusion reached in the lead judgment as mine. I also affirm the decision of the lower Court. Parties to bear the costs.
Appearances:
S.S. Obende, Esq. with him, M. A. Dawam, Esq. and W.S. Aboki, Esq.For Appellant(s)
F. O. Shaibu, Esq. with him, Bala Akor, Esq. and P. D. Mann, Esq. for 1st Respondent.
I. Aware, Esq. with him, P. Y. Izam, Esq. and F. A. Izang, Esq. for 2nd respondent.
3rd respondent is unrepresentedFor Respondent(s)
