MONDAY v. PDP & ORS
(2022)LCN/17130(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, November 04, 2022
CA/PH/434/2022
Before Our Lordships:
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
MR. SYMPATHY MONDAY APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY 2. THE CHAIRMAN, NATIONAL ASSEMBLY SCREENING COMMITTEE FOR RIVERS STATE 3. THE SECRETARY, NATIONAL ASSEMBLY SCREENING COMMITTEE FOR RIVERS STATE 4. MR. VICTOR OBUZOR 5. THE GOVERNOR OF RIVERS STATE 6. INDEPENDENT NATIONAL ELECTORAL COMMISSION 7. THE ATTORNEY GENERAL OF THE FEDERATION 8. THE ATTORNEY GENERAL OF RIVERS STATE AND COMMISSIONER FOR JUSTICE RESPONDENT(S)
RATIO
DEFINITION OF “AN ASPIRANT”
A combined reading of Section 84(14) (supra) and Section 285(14)(a) (supra) shows that the law, not only restricts the type of complaints, that is, the subject matters of actions, it prescribed restrictively, the persons with the requisite locus standi to institute a suit and validly invoked the jurisdiction of the Court in a pre-election matter. By their wordings, before approaching the Federal High Court a person must have been ‘an Aspirant’ in his Political Party’s Primaries. The Supreme Court in the case of Aghedo V. Adenomo (2018) 13 NWLR (Pt. 1636) 264 AT 294, Paras. B – C defined ‘an Aspirant’ as a person who contested his party’s primaries that produced the sponsored candidate.
This means that for a person to qualify as ‘an Aspirant’ to take benefit of Section 84(14) (supra) he must have participated in the primary election complained about and lost. See Ardo V. Nyako (supra) per Okoro, JSC who defined an aspirant as follows:
“An Aspirant is not a person who merely declared an intention to participate in the primary election but somebody who fully participated in the said party’s primary.”
Similarly, in Shinkafi V. Yari (supra), Okoro, JSC held thus:
“Only an Aspirant at the primary election is permitted by Section 87(9) of the Electoral Act, 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorized to file an action to challenge the selection or nomination of a candidate by a political party for an election.”
See also PDP V. Sylva & 2 Ors (2012) 13 NWLR (Pt. 1316) 85 AT 148 Paras. C – D & 149, Paras. A – E. PER ABDULLAHI, J.C.A.
WHETHER OR NOT A DECISION OF A COURT WHICH IS NOT CHALLANGED IN THE NOTICE OF APPEAL IS DEEMED ACCEPTED
It is trite law that the decision of a Court which is not challenged in the Notice of Appeal vide Ground(s) of Appeal is deemed to be accepted or conceded to by the Appellant. See Dabo V. Abdullahi (supra), Funtaji Int’l School Ltd. V. GTB Plc. (supra) and Anyanwu V. Onyeagocha & Ors (supra). PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Port Harcourt Judicial Division dismissing the Suit of the Plaintiff on the ground that it lacked the jurisdiction to entertain the matter. The Court below held that the Plaintiff is not an Aspirant, that the suit is premature, that the Plaintiff did not explore internal dispute mechanism of the 1st Defendant. That the Plaintiff signed an undertaking, therefore, he is estopped from litigating on the matter. Consequently, that the Court lacks jurisdiction. Dissatisfied, the Plaintiff has appealed to this Honourable Court on Seven (7) Grounds of Appeal and has distilled five (5) issues for determination.
The decision appealed against was delivered on the 16th day of September, 2022 by Hon. Justice A. T. Mohammed in Suit No. FHC/PH/CS/72/2022 on a pre-election matter.
The Notice of Appeal dated 20th September, 2022 was filed on the 26th day of September, 2022 at the lower Court contained on pages 548-565 of the record of appeal transmitted to the Court of Appeal on 30th September, 2022.
Therein contained the reliefs sought by the Appellant from pages 562 – 564 of the record.
The Appellant filed both Appellant’s Brief and Appellant’s Reply Brief on the 11/10/2022 and 26/10/2022 respectively. The said Reply Brief was deemed properly filed and served on 1/11/2022. The 1st – 4th Respondents filed their Brief of Argument on the 24/10/2022. The 5th – 8th Respondents did not file briefs even though served with the Appellant and 1st – 4th Respondents’ Briefs.
The appeal was heard on the 01/11/2022. Joseph Elleh Esq., who settled both Appellant’s Briefs appeared with C. I. Obimba Esq., for the Appellant and he identified the two briefs which he adopted as their argument in this appeal. He then urged the Court to allow the appeal, set aside the judgment of the lower Court and to enter judgment in favour of the Appellant by considering his Amended Originating Summons and grant all the reliefs sought therein.
E. C. Ukala, SAN who appeared with M. S. Agwu Esq., and O. Omeodu Esq., for the 1st – 4th Respondents, identified the 1st – 4th Respondents’ brief settled by Okachukwu Omeodu Esq., and adopted it as their response in the appeal. He then urged the Court to dismiss the appeal and affirm the decision of the Court below.
Appellant in his brief formulated five (5) issues for determination of the appeal to wit:
“1) Whether the learned trial Judge of the Court below without considering the effect of the meaning of Aspirant under Section 84(3) of the Electoral Act 2022 rightly held that the Plaintiff/Respondent (the Appellant before this Honourable Court) was not an Aspirant within the meaning of Section 84(14) of the Electoral Act 2022, the cases of Ukachukwu V. PDP; APC V. LERE. Consequently, that the Plaintiff lacks the Locus Standi or capacity to maintain the action in view of the depositions in the Plaintiff’s Supporting Affidavit, Further and Better Affidavit and the Counter Affidavit in opposition to the Preliminary Objection. (Ground 1 of the Notice of Appeal)
2) Whether the learned trial Judge of the Court below was not making a case for the 1st – 4th Defendants/Applicants other than they made for themselves when he held that the Plaintiff/Respondent (the Appellant) was not an Aspirant for the Peoples Democratic Party Primaries for Ahoada/Ogba/Egbema/Ndoni within the meaning of Section 84(14) when the parties from their pleading did not join issues on whether or not the Plaintiff/Respondent was an aspirant in all the processes before the Court. (Ground 2 of Appeal)
3) Whether Section 84(3) of the Electoral Act, 2022 prohibits 1st – 3rd Defendants from imposing nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its Constitution, guidelines, or rules for nomination of candidates for elections except as prescribed under Sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution and If so, was the learned trial Judge of the Court below right to enforce the undertaking in the Plaintiff’s/Respondent’s as estopped considering the effect of Sections 84(3) and Section 84(14) of the Electoral Act, 2022, which cannot be curtailed by any rule of the party. (Ground 4 of Appeal)
4) Whether the learned trial Judge of the Court below rightly held that the Plaintiff’s/Respondent’s suit was pre-matured, and/or that the Plaintiff/Respondent did not exhaust the dispute resolution mechanism of the 1st Defendant’s/Applicant’s before initiating the action considering the provisions of paragraph 1, 4, 4(vi) – (xi) of the Peoples Democratic Party Guidelines for House of Representatives Primary and Section 285(9) of the Constitution of Federal Republic of Nigeria 1999, third alteration No 21 of 2017. (Grounds 5 & 6 of Appeal)
5) Whether the judgment of the trial Judge of the Court below was not against the weight of evidence considering the documentary evidence before the trial Judge. (Ground 7 of Appeal)”
1st – 4th Respondents submitted a single issue for determination of the appeal thus:
“Whether in view of the reliefs sought in the Amended Originating Summons and the depositions in the Affidavit in support of the Amended Originating Summons at the lower Court whether the learned trial Court was justified in upholding the 1st – 4th Defendants’ motion challenging jurisdiction and dismissing the Appellant’s suit for want of jurisdiction?”
The single issue submitted by the 1st – 4th Respondent is apt and encompassing that can be used in consideration and just determination of the conflicts in this appeal. I therefore adopt same in treatment of the dispute arising from the appeal.
ARGUMENTS
On issue one of Appellant’s brief, learned counsel for the Appellant contended that the learned trial Judge of the Court below did not rightly hold that the Appellant was not an Aspirant of the Peoples Democratic Party (PDP) Primaries for Ahoada/Ogba/Egbema/Ndoni Federal Constituency within the meaning of Section 84(14) of the Electoral Act, 2022. That the cases of Ukachukwu V. PDP (2014) 17 NWLR (Pt. 1435) 134 and APC V. LERE (2020) 1 NWLR (Pt. 1705) 254 which the trial Judge heavily relied and hinged his judgment, did not support the position that Section 84(14) (Supra) (formally Section 87(9) of the Electoral Act, 2010) relates only to the participation at the voting stage in a primary election process. He referred to paragraphs 3(vi), 3(vii) and 3(ix) of the Counter-Affidavit in opposition to the Preliminary Objection and submitted that it manifestly shows that the said constituency primaries were compartmented into stages. That the Appellant participated up to third stage where the infraction occurred which gave rise to cause of action. That the averments on compartmented primaries into stages were not denied and those facts are deemed established with no further proof required. He said that the screening or verification exercise of the Aspirants for primaries is regulated by Section 84(3) of the Electoral Act, 2022. That from all processes, Appellant is an Aspirant for the said constituency.
Counsel contended that the position held by the learned trial Judge that the Appellant was not an Aspirant within the meaning of Section 84(14)(supra) is not supported by Ratio 5 of Ukachukwu V. PDP (supra) relating to the interpretation of Section 87(9) of the Electoral Act, 2010 which is in pari material with Section 84(14) (supra). He said that the calm reading of Ukachukwu V. PDP (supra) indicates that the Supreme Court enunciated that in determining whether an action could conveniently come within the purview of S.87(9) (supra) there are four conditions that are necessary for instituting such pre-election action before the Federal High Court. That the four conditions which are necessary to bring an action under Section 84(14) (supra) are:
“a. There must have been a primaries for the selection or nomination of a candidate by a political party
b. The exercise for the primaries must have been in respect of an election.
c. The complainant must be an aspirant who ought to have taken part in his political party’s primaries; and
d. The political party designated did not comply with a provision of the Electoral Act or its parties guidelines for the selection done.”
He further contended that it was the infringement of Section 84(3) of the Electoral Act, 2022 against the Appellant occurred at the third stage of the primaries where conditions, measures, criteria other than those mentioned in Sections 65, 66, 106, 107, 131, 137, 177 and 187 of the 1999 Constitution inure to the Appellant the right to complain to the Court pursuant to Section 84(14) (supra). He referred to paragraphs 1 – 31 of the Affidavit in support of the Originating Summons at pages 5 – 174 of the Record of Appeal and paragraphs 3(i) – 3(xii) of the Counter-Affidavit in opposition to the Preliminary Objection filed by the 1st – 4th Respondents at pages 467 – 470 of the record of appeal. He submitted that the four conditions enunciated by the Supreme Court were satisfied by the Appellant in this case.
Counsel submitted that in determining who is an Aspirant in both the sections that created the cause of action and that which gives the right of action must be correlated. Relied on the case of Ardo V. Nyako (2014) 10 NWLR (Pt. 1416) 591 AT 629, Paras B – G.
He contended that in the instant case, the act of the 1st – 3rd Respondents imposing on the Appellant qualification and disqualification criteria, conditions and measures other than those stipulated under the Constitution of Nigeria and entrenched in Section 84(3) (supra) and also the PDP Guidelines for Primaries for House of Representatives Elections gave the Appellant the cause to complain.
On issue two, counsel contended that the Appellant and the 1st – 4th Respondents never joined issue on whether or not the Appellant’s existential state of “being an Aspirant of the PDP” is false or does not exist. That in all the processes filed by the 1st – 4th Respondents, did not deny the existential state of the Appellant “being an Aspirant of the PDP.”
That where specific averments are made in affidavit, the adverse party must in his Counter-Affidavit specifically deny, challenge or controvert the specific averments. That the facts of the existential state of the Appellant “being an Aspirant of the Peoples Democratic Party” was not denied, controverted or challenged especially by the 1st – 4th Respondents; it therefore deemed admitted and the Court is to act upon it unless it is manifest moonshine. Relied on the cases of Ogoejeofo V. Ogoejeofo (2006) LPELR – 2308 (SC) 14, Paras. A – B. & Akiti V. Oyekunle (2018) LPELR – 43721 (CA) 7 – 8, Paras. F – D.
He contended that the Court on the basis of the argument of the learned counsel for the 1st – 4th Respondents proceeded to determine that the Appellant existential state is not an Aspirant within the meaning of Section 84(14) (supra). That the argument of counsel no matter how convincing cannot be a substitute for evidence. Cited and relied on the cases of Aliucha & Anor V. Elechi & Ors (2012) NWLR, LPELR and Oyeyemi & Ors V. Owoeye & Anor (2017) LPELR – 41903 (SC).
Counsel submitted that the trial Court in defining who an Aspirant is when the 1st – 4th Respondents did not make out a case to challenge, deny or controvert the Appellant’s existential state of “being an Aspirant” for PDP, was making a case for the 1st – 4th Respondents other than what they made for themselves. Thus, the Court robbed the Appellant of the capacity to maintain the action.
On issue three, counsel contended that the learned trial Judge’s finding that the Appellant entered into undertaking and that he is estopped by virtue of the undertaking from litigating on the outcome of the Primaries, is based on ‘Hasty Generalization’ and ‘Red Herring’. That it is premises on reaching an inductive generalization that all agreements are enforceable by the Court. That the lower Court relied on the cases of Ude V. Nwara & Anor (1993) LPELR – 3289 (SC) and Gana V. SDP (2019) LPELR – 47153 cited by the 1st – 4th Respondents without considering the issue of the illegality of the ‘undertaking’ in view of the provisions of Sections 84(3) and 84(14) (supra) and also Part 1V, Paragraph 1 of the Guidelines for Elections.
Counsel submitted that in both cases of Ude Vs. Nwara & Anor and Gana V. SDP (supra) no question of legality or otherwise of the undertaking arose. That the Court’s decision in the instant case was taken per incuriam of the decision of the Supreme Court in the case of Nwosu V. APP (2020) 16 NWLR (Pt. 1749) 29 AT 61 – 62, Paras. B – H.
On issue four, counsel contended that the holden of the learned trial Judge at pages 544-549 of the records to the effect that the Appellant’s action was premature because he did not exhaust the dispute mechanism of the party was an error in law. He referred to Section 285(9) of the 1999 Constitution (Fourth Alteration Act, 2017); Guidelines for the Peoples Democratic Party for the House of Representatives Primaries Election at pages 72- 76 of the Record of Appeal; Constitution of PDP at pages 107 – 164 of the Records especially page 135. That the learned trial Judge missed the mark and erred in law by failing to apply the said Section 285(9) (supra) to the time of the Cause of Action, which was 27/04/2022. That the trial Court diverted attention to Article 61(1) of the PDP Constitution, instead of the law governing the time for filing of Pre-election matter to know whether or not within the facts of the case, the action is premature or not. That since the cause of action occurred on 27/04/2022 and the suit filed on the 11/05/2022 was not pre-mature.
Counsel submitted that the highest dispute resolution mechanism is the National Executive Committee of the party. That where petition(s) is/are submitted by Aspirant(s) to any member of the National Executive counsel or the National Working Committee of the party, or the Screening Appeal Panel, as in this case, it is the duty of such member of the committee to bring it before the committee for the purpose of resolving the issue. That any default on their part to do so is not attributable to the Aspirant.
Counsel contended that the averment of the 1st – 4th Respondents’ Counter-Affidavit, paragraph 4(vi) is at best an excuse for not attending to the Appellant’s petition on the premises of same was not brought to their attention and there was no inference that it was the Appellant’s duty to bring the petition sent to the National officers to the attention of the Screening Appeal Panel. He referred to Exhibits J, J1 and J2 which according to him are the same things as Exhibits – SM16, SM17 and SM18 as proof that members of highest decisions making organ concerning the Primary Election matters had knowledge of the Appellant’s complaint.
He submitted that there was no contradiction whatsoever for the purpose of which the said exhibits were placed before the Court. That the misappreciation of the purpose of Exhibits – J, J1 and J2 in line with the Appellant’s deposition by the Court led to the erroneous finding that the Appellant did not complain before the end of May, 2022 and that the action was premature by virtue of Section 61(1) of PDP Constitution, 2017. That in law facts not been challenged ought to be acted upon by the Court.
On issue five, counsel contended that in view of the documentary evidence before the trial Court, this Court is in the same position as the trial Court to evaluate the evidence and enter judgment for the Appellant. He urged us to look at the Appellant’s Exhibits A – J2 at pages 13 – 175, which is the same as Exhibits SM1 – SM18 and hold that the Appellant was wrongly disqualified contrary to Section 84(3) (supra). He further urged us to examine Exhibits PDP – PDP 9 at pages 208 – 259 and hold that Exhibit PDP3 is of questionable origin as there is no name of a human agent who received it on behalf of the purported PDP, Rivers State. That from the 4th Respondent’s document shows that no nomination form was issued to him by the 1st Respondent. That the claim of the 4th Respondent on purchase of form from the 1st Respondent is not supported by receipt issued for the purchase as claimed. He submitted that the documents were clear before the lower Court but failed to draw inference from them.
Counsel urged us to allow the appeal and grant all the reliefs of the Appellant as endorsed in the Amended Originating Summons.
In response, the learned counsel for the 1st – 4th Respondents submitted that it is the law that the issue of jurisdiction is best determined from the averments in the statement of claim. In respect of this appeal, he said that the Court is to consider and examine the Appellant’s Amended Originating Summons and the supporting Affidavit for the purpose of considering whether the Court below was right in its findings that it lacks jurisdiction to entertain the Appellant’s case. Reference made to the cases of NPA V. Eyamba (2006) All FWLR (Pt. 320) 1022 AT 1047, Para. G and Ikine V. Edjerode (2002) FWLR (Pt. 92) 1775.
He submitted that the decision of the lower Court that the Appellant was not an Aspirant having not participated in the Primaries of the 1st Respondent and therefore not entitled to challenge the same is impeccable and represents the correct position of the law. That for a person to qualify as an Aspirant to take benefit of the provision of Section 84(14) of the Electoral Act, 2022, such person must have participated in the Primary Election complained about and lost. Reliance on the cases of Dr. Umar Ardo V. Admiral Murtala Nyako & Ors (2014) Legalpedia (SC) RX6Y, Per Okoro, JSC, defined an Aspirant as follows:
“An Aspirant is not a person who merely declared an intention to participate in the primary election but somebody who fully participated in the said party Primary.”
And also Shinkafi V. Yari (2016) All FWLR (Pt. 862) 1399 AT 1435, Paras. F – H, Prince John Okechukwu Emeka V. Lady Margery Okadigbo (2012) legalpedia (SC) Z50C.
Counsel referred us to paragraph 17 of the Affidavit in support of the Amended Originating Summons at pages 1 – 186, particularly at page 9 of the Record of Appeal and submitted that it is clear on the Appellant’s own showing that although he indicated an interest to contest the primary election for the House of Representatives under Ahoada West/Ogba-Egbema Federal Constituency, subject matter of this suit, he did not succeed in participating in the primaries because according to him, he was suppressively not cleared by the PDP Screening Committee for House of Representatives. That the inescapable meaning of the Appellant’s deposition in paragraph 17 of the Amended Originating Summons is that he did not contest or participated in the 2022 PDP Primary Election for the nomination of a candidate of the PDP to contest election for the said constituency.
He said that the legal implication of not participating or contesting the election as an Aspirant is that the Appellant has no capacity or locus standi to challenge the outcome of that election or to nullify same. That by the provision of Section 84(14) (supra) it is only an Aspirant who contested and lost at a political party’s primary election that has the capacity or locus standi to challenge the election or the process leading to it. Cited again Ardo V. Nyako (2014) All FWLR (Pt. 744) 130 AT 160, Paras. C – E.
Counsel submitted that contrary to the contention of the Appellant, the Court below correctly applied the case of Ukachukwu V. PDP and APC V. LERE (supra). That this is because the Appellant was never cleared to contest the Primary Election by the Screening Committee and therefore stagnated within the stage where he cannot take benefit of Section 84(14) (supra) to challenge the Primary election or the process leading to it. He referred us to APC V. LERE where the Supreme Court interpreted Section 87(9) of the Electoral Act, 2010 which is in pari materia with Section 84(14) of the Electoral Act, 2022 in which the Apex Court made the distinction between Pre-primary Election issues and Post-primary Election issues.
Counsel contended that the provisions of Sections 84(3) and 84(14) (supra) apply to Aspirants only and not otherwise. That since the Appellant does not come within the definition of Aspirants as defined by the Apex Court and this Court, no right of action is available to him. That the only remedy available to the Appellant where he feels mistreated by a voluntary association such as the 1st Respondent is to leave the party or sue it for damages and nothing more. Cited the case of Wushishi V. Imam (2017) 8 NWLR (Pt. 1597) 175 AT 216, Paras. B – H.
Counsel further contended that the contention of the Appellant that the said constituency primary was compartmented into stages and that the infringement of Section 84(3) (supra) against him occurred at the third stage of the primaries, and that the word Aspirant used in Section 84(3) (supra) connotes someone at the conclusion of the Primaries who had passed through the stage of examination of his documents for qualification and disqualification criteria in the primaries of his political party is erroneous and misconceived. That it is only sections 65 & 66 of the 1999 Constitution that relate to qualifications for election into House of Representatives, relating to the Appellant.
He submitted that the Appellant did not qualify as an Aspirant to take the benefit of Section 84(3) and Section 84(14) (supra) in that he did not participate in the primary election of the 1st Respondent on the authority of APC V. LERE and Ardo V. Nyako (supra). That Appellant is not qualified to take benefit of Section 65(1) of the 1999 Constitution because he was not already a member of the House of Representatives.
He is of the opinion that the section relates only to members and not otherwise. He then submitted that the findings and decision of learned trial Judge that the Appellant is not an aspirant within the contemplation of the law and cannot take benefit of Sections 84(3) & 84(14) (supra) is unassailable and therefore it cannot be faulted.
He reiterated that to qualify as an aspirant the person must have participated in the actual primary election complained about and not merely participated in the screening as wrongly argued by the Appellant’s counsel. Referred to LERE V. APC & Ardo V. Nyako (supra) again.
On the contention of the Appellant that the trial Court made a case for the 1st – 4th Respondents when it held that the Appellant was not an aspirant, having not participated in the primary election of the 1st Respondent, it is misplaced in law according to the learned counsel for the 1st – 4th Respondent. He said that the Court came to the correct and impeccable decision based on the Appellant’s own averments in his paragraph 17 of the Affidavit in support of his Amended Originating Summons. He therefore urged us to hold that the contention of the Appellant is erroneous and unavailing in all circumstances.
On the contention that the trial Court’s decision that Appellant was estopped from litigating the same cause he had voluntarily elected expressly not to litigate, counsel submitted that the trial Court merely followed the decision of the Supreme Court in Gana V. SDP & Ors (supra) 18 – 23, Paras. A – A where the Supreme Court decided on the effect of similar agreement as in the instant case and came to the conclusion that a party who enters into such an agreement with his Political Party is estopped from litigating the same cause he voluntarily elected or agreed not to litigate. That the case of Gana V. SDP was never distinguished by the Appellant and the trial Court was right to apply it in the circumstances of the case leading to this appeal.
On the contention of the Appellant that the finding of the trial Court that the Appellant’s case is premature as he failed to exhaust the internal dispute mechanism without taking into account the provision of Section 285(9) of the Constitution is erroneous, counsel submitted that the decision of the Court below is correct in law and no need for this Court to interfere with the said findings in view of the Appellant’s own showing in paragraph 18 of his Amended Originating Summons at pages 9 – 10 of the records. That by the Appellant’s averments, he did not exhaust the internal dispute resolution mechanism set up by the party for the purpose of resolving any alleged injustice or wrong meted out to the Appellant as required by Section 61 of the PDP Constitution (as amended) and Part IV, Article 5 of the PDP Electoral Guidelines for Primary Election. That the implication of the Appellant’s failure to so do is that his case was premature as held by the Court below. Reliance placed on the cases of Akintemi V. Onwumechili (1985) 1 NWLR (Pt. 1) 68 AT 85, Para. H and T. O. Owoseni V. Joshua (2005) 14 NWLR (Pt. 946) 719 AT 757, Paras. B – C.
Counsel submitted that the entire essence of the ‘undertaking’ of the Appellant as can be cleaned from pages 22 – 23 of the records is to ensure that all grievances of aggrieved party members interested in the electioneering processes are resolved amicably through the domestic dispute resolution mechanism without the need to resorting to litigation.
That the Appellants’ contention that he was prevented from reaching the venue of the sitting of the State Screening Appeal Panel and his submission of petition to the Chairman and Organizing Secretary is an afterthought and also diversionary as his name was not amongst those that filed appeal and had their appeals determined one way or the other. That an appeal properly filed must be to the Party Screening Appeal Panel set up by the 1st Respondent and that a party can appeal to the National Working Committee thereafter, being the highest Appellate organ in the hierarchy of the 1st Respondent. He urged us to discountenance all the contentions of the Appellant on this point and dismiss the appeal for lacking in merit.
On the Appellant’s contention that the judgment of the Court below is against the weight of evidence and that in view of the documentary evidence, this Court is in the position as the trial Court to evaluate the evidence and to enter judgment for the Appellant, the learned counsel to the 1st – 4th Respondents said that it is misconceived. That this is because the decision of the trial Court was on preliminary objection of the 1st – 4th Respondents only. He argued that the merit of the substantive matter was never considered and there was no finding or decision and/or pronouncement by the Court below on the merit of the case, on the basis of which this Court can consider and determine the correctness or otherwise of it.
Counsel further argued that if the failure of the trial Court to pronounce on the merit of the substantive suit is an error, it is the duty of the Appellant to raise it specifically by way of a complaint in a ground of appeal or grounds of appeal. That failure to do so implies that the Appellant has accepted that aspect of the decision and cannot argue to the contrary in his Brief of Argument. That it is a well-established position of the law that the decision of a Court which is not challenged in the Notice of Appeal is deemed to be accepted by the Appellant who failed to complain about it. Referred to the cases of Dabo V. Abdullahi (2005) LPELR – 903 (SC), Funtaji Int’l School Ltd. V. GTB Plc. (2022) LPELR – 58143 (CA) & Anyanwu V. Onyeagocha & Ors. (2015) LPELR – 26018 (CA).
He submitted that for this Court to assume the role of the Court of first instance, certain conditions must exist and must be satisfied by the party inviting the Court to that role. He itemized the conditions thus:
“i. That the High Court or trial Court had the legal power to adjudicate the matter before the appellate Court entertained it.
ii. That the real issue raised by the claim of the Appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal.
iii. That all necessary materials must be available to the Court for consideration.
iv. That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented, and
v. That the justice or Lordship that will follow if the case is remitted to the Court below must clearly manifest.
Referred to the following cases
a. Awoyomi V. Chief of Army Staff & Ors (2013) LPELR – 22121 (CA)
b. Njideka Ezeigwe V. Chief Benson chuks Nwawulu & Ors. (2010) LPELR – 1201 (SC)
c. Ekee & Ors. V. Idovie & Ors. (2020) LPELR – 50764 (CA)
d. Usman V. Kaduna State House of Assembly & Ors. (2007) 11 NWLR (Pt. 1044) 148 AT 161.
He further submitted that the conditions have not been fulfilled, especially (i) and (ii) above. That the real claim of the Appellant as endorsed in his Amended Originating Summons was not distilled as a ground of appeal in the Notice of Appeal.
He further contended that in the unlikely event that the appeal is allowed, this Court can only remit the case back to the Court below to hear and resolve the remaining issues one way or the other and make pronouncement on the merit of the case. That the Appellant’s appeal is solely against the ruling of the Court below declining jurisdiction to entertain the substantive case; as such cannot proceed to grant the other reliefs sought by the Appellant since the matter was not heard on the merit.
In reaction to the response of the 1st – 4th Respondents, the learned counsel for Appellant recapitulated the argument already canvassed in the main Appellant’s Brief of Argument as shown in the Appellant’s Reply Brief filed on 26/10/2022 without more. He has not referred to new issue(s) introduced by the 1st – 4th Respondent in their brief, if any and reacted to it/them in the said Reply Brief.
Even though I took time to read the contents of the Reply Brief for what it worth, I opted not to repeat what have already been stated in this judgment in avoidance of making the judgment to sound monotonous.
RESOLUTION
The appeal under reference is predicated on the alleged wrongful determination of the Appellant’s status by the Court below based on the 1st – 4th Respondents’ challenge by way of Preliminary Objection to the Amended Originating Summons filed by the Appellant at the Federal High Court, sitting in Port Harcourt, Rivers State.
The said objection was by means of Motion on Notice which challenged the jurisdiction of the Court below to hear and determine the Appellant’s suit. This motion was filed along with Counter-Affidavit in opposition to the Amended Originating Summons on the 10/08/2022 as shown on records. The Appellant also filed Counter-Affidavit in opposition to the motion on Notice challenging jurisdiction on the 15/08/2022. 1st – 4th Respondents had also filled Further and Better Affidavit and Reply on points of law.
The motion was heard together with the substantive Originating Summons and the learned trial Judge delivered his ruling in favour of the 1st – 4th Respondents/Applicants in motion and dismissed the Appellant/Respondent suit without delving into it for reason of lack of jurisdiction to entertain the suit as stated in the ruling appealed against by the Appellant.
In view of the crucial nature of the matter on appeal, I painstakingly perused the entire processes mentioned above which are contained in the records of appeal transmitted to this Court. By my perusal, I deduced that the main crux of the matter is “whether or not the Appellant as Plaintiff before the trial Court was an ‘Aspirant’ in the primary election conducted by the 1st Respondent (PDP) for Ahoada/Ogba/Egbema Federal Constituency of Rivers State at the end of May, 2022 and has the requisite locus standi to institute the suit for redress.”
From the affidavit evidence in support of motion, the 1st – 4th Respondents/Objectors answered in the negative in their bid to show that the Appellant/Respondent was not an Aspirant; while the said Appellant/Respondent by his Counter-Affidavit in opposition to the motion answered in the positive to show that he was and still an aspirant and can maintain the action instituted by him at the Court below.
This issue of ‘who is an aspirant is unbearably repetitive regardless of the definition and interpretation of it given in plethora of cases by this Court and the Apex Court. It keeps on reoccurring in pre-election matters adamantly from the litigants, may be in continuance to test the waters and/or make trials.
It is the argument of the learned counsel for the Appellant that the learned trial Judge did not rightly hold that the Appellant was not an aspirant of the 1st Respondent (PDP) for Ahoada/Ogba/Egbema Federal Constituency within the meaning of Section 84 (14) of the Electoral Act, 2022.
The holden referred to is on page 540 of the record of appeal thus:
“Based on my examination of the averments of the Plaintiff/Respondents in the affidavit filed in support of the Amended Originating Summons, particularly paragraph 17 thereto, which I reproduced above, the Plaintiff/Respondent did not show that he has actually participated in the primaries of the Peoples Democratic Party slated for end of May, 2022, but rather that the screening committee did not clear him, and cleared only the 4th Defendant/Applicant.
In my view, by the provisions of Section 84(14) of the Act, it is an aspirant, who participated in the primary that has the capacity to complain that any of the provisions of the 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 that may apply for redress. The view above is the position of the Courts in Ukachukwu V. Peoples Democratic Party & Ors. (2014) 17 NWLR (Pt. 1435) pg. 134 AT 140 and APC V. LERE (2020) 1 NWLR (Pt. 1705) pg. 254 AT 266, where the provisions of Section 87(9) of the Electoral Act, 2010 which is in pari materia with Section 84(14) of the Electoral Act, 2022 was considered.
Consequent upon the foregoing, I agree with the submission of the learned Senior Counsel for the 1st – 4th Defendants/Applicants that the Plaintiff/Respondent has no capacity to institute the instant suit. I so hold.”
I will come to the holden complained about by the Appellant at a later time. Now, I will look at Cause of Action and Right of Action in relation to this appeal as provided for in Section 285 (14)(a) of the 1999 Constitution (as amended) which is identical to those recognized in Section 84(14) of the Electoral Act, 2022.
A combined reading of Section 84(14) (supra) and Section 285(14)(a) (supra) shows that the law, not only restricts the type of complaints, that is, the subject matters of actions, it prescribed restrictively, the persons with the requisite locus standi to institute a suit and validly invoked the jurisdiction of the Court in a pre-election matter. By their wordings, before approaching the Federal High Court a person must have been ‘an Aspirant’ in his Political Party’s Primaries. The Supreme Court in the case of Aghedo V. Adenomo (2018) 13 NWLR (Pt. 1636) 264 AT 294, Paras. B – C defined ‘an Aspirant’ as a person who contested his party’s primaries that produced the sponsored candidate.
This means that for a person to qualify as ‘an Aspirant’ to take benefit of Section 84(14) (supra) he must have participated in the primary election complained about and lost. See Ardo V. Nyako (supra) per Okoro, JSC who defined an aspirant as follows:
“An Aspirant is not a person who merely declared an intention to participate in the primary election but somebody who fully participated in the said party’s primary.”
Similarly, in Shinkafi V. Yari (supra), Okoro, JSC held thus:
“Only an Aspirant at the primary election is permitted by Section 87(9) of the Electoral Act, 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorized to file an action to challenge the selection or nomination of a candidate by a political party for an election.”
See also PDP V. Sylva & 2 Ors (2012) 13 NWLR (Pt. 1316) 85 AT 148 Paras. C – D & 149, Paras. A – E.
In the case of APC V. LERE (supra), the Apex Court interpreted Section 87(9) of the Electoral Act, 2010, which provisions are in pari materia with Section 84(14) of the Electoral Act, 2022 where it made distinction between pre-election issues and post-primary election issues.
Learned counsel for the Appellant made heavy weather in his contention about combined provisions of Section 84(3) and Section 84(14) (supra) in his effort to establish that the Appellant is an aspirant with the right to seek redress before the Federal High Court. The contention is of no moment as it cannot see the light of the day based on the authorities cited above on the definition and interpretation of who is an aspirant within the law.
Be that as it may, the holden of the learned trial Judge complained about which was earlier quoted in this judgment is unassailable in view of the plethora of authorities on that point. The contention is therefore misconceived. This I found and so hold.
The contention of the Appellant that the trial Court made a case for the 1st – 4th Respondents when it held that the Appellant was not an aspirant, having not participated in the primary election of the 1st Respondent is misplaced as well as misconceived in view of the Appellant’s averments in paragraph 17 of the Amended Originating Summons. Also in the light of the definition and interpretation of an aspirant provided in the case law here above.
The issue of undertaking voluntarily made by the Appellant not to litigate, the learned trial Judge properly relied on the case of Gana V. SDP (supra) where the Supreme Court decided on the effect of similar agreement as in the instant case and came to the conclusion that a party who enters into such an agreement with his political party is estopped from litigating the same cause he voluntarily elected not to litigate. See Section 169 of the Evidence Act, 2011 and the cases of Oyerogba V. Olaopa (1998) 13 NWLR (Pt. 583) 509 and Ude V. Nwara & Anor (1993) LPELR – 3289 (SC) 27, Paras. A – B.
On the finding of the lower Court that the Appellant’s case was premature for failure to exhaust the Internal Dispute Resolution Mechanism, paragraph 18 of the Appellant’s averments of the Amended Originating Summons ignited the said finding, having shown that he tried to lodge a complaint at the State Screening Appeal Panel but was not able to do so because he could not reach the venue where the panel was staying and that he proceeded to Abuja and submitted his complaint in the offices of the National Chairman and National Organizing Secretary. There is nothing to show the conclusion and or result of such submission of the complaint. The finding of the trial Court is therefore unimpeachable. I so hold. See the cases of Akintemi V. Owumechili (supra) where the Supreme Court held thus:
“…that until the remedies available in the domestic forum are exhausted, any resort to Court action would be premature.”
Similar position is taken by the Apex Court in the case of T. O. Owoseni V. Joshua Ibiowotisi Faloye (supra) on this point.
On the invitation of this Court to evaluate the documentary evidence and enter judgment for the Appellant, the merit of the substantive matter was never considered and determined by the Court below. The trial Court only considered and ruled on the Preliminary Objection of the 1st – 4th Respondent which is the subject matter in this appeal wherein the lower Court declined jurisdiction. It never delved into the main action and no complain in a ground of appeal on the failure to deal with the questions in the main suit.
It is trite law that the decision of a Court which is not challenged in the Notice of Appeal vide Ground(s) of Appeal is deemed to be accepted or conceded to by the Appellant. See Dabo V. Abdullahi (supra), Funtaji Int’l School Ltd. V. GTB Plc. (supra) and Anyanwu V. Onyeagocha & Ors (supra).
In the light of the above, this Court declines the invitation to be busy body. For this reason and the earlier ones aforementioned in the judgment, the issue under reference is resolved in favour of the 1st – 4th Respondents against the Appellant.
This appeal lacks merit and hereby dismissed. The decision of the Court below delivered by Hon. Justice A. T. Mohammed on the 16th day of September, 2022 in Suit No. FHC/PH/CS/72/2022 on the pre-election matter is therefore affirmed.
Parties are to bear their individual costs of prosecuting and defending this appeal.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the Hon. Justice R.M. Abdullahi graciously obliged me with an advance copy of the judgment just delivered in which the instant appeal was adjudged as lacking in merit and was consequently dismissed.
I wholeheartedly agree with the said judgment which was in line with our consensus opinion at the Chambers’ Conference we held on 1/11/2022 after the appeal was heard and the judgment was reserved. The said judgment adequately dealt with the issues raised and argued in the appeal which the lead judgment had painstakingly analyzed and admirably resolved in the context of extant appellate Courts’ decisions.
I really do not have any useful additions to make save to remark that 23 odd years in our journey as a country into democratic civil rule, political actors and to some extent, their Counsel have failed over these years to imbibe the basic principles that have guided judicial interpretation of our electoral jurisprudence up to the new Electoral Act, 2022 and Courts are continually inundated with cases which ordinarily extant judicial decisions of this Court and the apex Court have resolved and set up ratio decidendi that ought to inform the decision whether or not to litigate a particular matter. It’s either the political actors, and to some extent their counsel are not learning from the extant decisions, or have deliberately ignored them and institute legal actions to taunt the Court and belaboured the Judges with matters in which counsel ought, in a normal clime, to have advised their clients of the need to leave the Court out of their frustrations or disappointment. The Nigerian Courts being part and parcel of the common law jurisdiction are bound to abide by the doctrine of “stare decisis” which was really developed in order to ensure consistency in the decisions of the Courts based on cases with substantially similar facts and circumstances, and no Court is empowered under the said doctrine, to veer off the line of decisions already established by the appellate Courts, especially, the Supreme Court. It is high time that cases which are adjudged as in the instant appeal as frivolous or an abuse of Court’s process be severely sanctioned by the Courts in order to deter the continuous waste of precious time and scarce judicial resources in determining disputes which have been clearly settled by extant judicial decisions.
I agree with the leading judgment of my learned brother, R. M. Abdullahi, JCA that this appeal lacks merit and it be dismissed. The Appellant is lucky that my learned brother did not order for costs. I am of the view that punitive costs ought to be awarded where litigants and their counsel failed to imbibe the lessons which previous decisions may have taught in our electoral jurisprudence.
I have expressed this view because, lawyers are first of all ministers in the temple of justice, and ought to assist the Courts in the determination of legal disputes brought to them for adjudication, and where a counsel failed in this regard by appropriately advising their clients as to the state of the law, as in this instance, that by the extant provisions of the Constitution and the Electoral Act, 2022 only “Aspirants” who participated in the “primary election” of a political party is eligible to challenge the outcome of the said “primary election” in the Courts, and nevertheless proceeded to file a suit on behalf of his client as a “political actor” who did not participate in the “primary election”, the singular act of a counsel doing so cannot in my view, be an act of “bravery” or “intellectual wizardry” or “brilliance”, but rather of “professional brigandage” because he is by his doing so, inviting the Courts to depart from established precedent by the apex Court on the subject, and act in the exercise of their judicial powers to sabotage the doctrine of stare decisis as one of the foundations of our legal system as a “common law country” and such conduct in my view, constitutes a gross abuse of Court’s process which deserves a form of judicial discipline in the context of provision of Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by way of sanction in costs. See the Supreme Court’s decision in ARUBO vs. AIYELERU (1993) 3 MWLR (pt.280) 126 AT 142 SC per Nnaemeka Agu, JSC (Rtd.).
Appeal is dismissed by me too.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I had the privilege of reading the draft of the judgment delivered by my very learned brother, Ridwan Maiwada Abdullahi, J. C. A. I agree that there is no merit in this appeal. It is a proper candidate for dismissal. I also dismiss it.
To further edify the leading judgment, I will add my few words to the edifice.
Section 84(14) of the Electoral Act, 2022 is one of the few windows a person has to approach the Courts to challenge the conduct of party primaries conducted by a political party. The provision states:
“(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 political party for election, may apply to the Federal High Court for redress.”
(Bold font for emphasis).
It is apparently under the unique statutory canopy erected by the provision quoted above that the appellant approached the lower Court (Federal High Court, Port Harcourt Judicial Division) with his many questions and prayers in suit no. FHC/PH/CS/72/2022, contained in the amended originating summons filed on 05/08/2022. The amended originating summons before the lower Court raised the following questions in respect of which answers were demanded, as follows:
“1) WHETHER BY THE INTERPRETATION of the provision of paragraph 1, Part IV of the Peoples Democratic Party Electoral Guidelines for primaries the criteria for the qualification and disqualification of House of Representatives aspirants for the primaries of the Peoples Democratic Party is circumscribed to the criteria for qualification and disqualification as set out in Section 65 & 66 of the Constitution of Federal Republic of Nigeria 1999 (as amended).
2) WHETHER by the interpretation of the provision 65 & 66 of the Constitution of the Federal Republic of Nigeria and the Electoral Guidelines made by the National Executive Committee of the Peoples Democratic Party for 2023 election, the timing for Tax Clearance receipt filing that is obtained prior to the primary election date and the payment of party due are criteria for the qualification and disqualification of candidates for House of Representatives Election under Section 65 & 66 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and Paragraph 1 of the said Guidelines of the said primary election.
3) WHETHER under Paragraph 2(b), of Part IV of the People Democratic Party Election guidelines for the House of Representative ‘an aspirant obtaining the forms is a condition president to be in the Primary election for People Democratic Party and if so whether that condition president contemplates or envisage a situation where third parties other than an aspirant shall obtain the nomination form and if not whether the collective forms purchased by the Governor of Rivers States and distributed, shared, given and dashed to his anointed, including the 4th Defendant, for the 2023 House of Representatives Primaries Election for Ahoada West/Ogba Egbema Federal Constituency meets the requirement of the guidelines to warrant the 4th Defendant being an “aspirant for the said Ahoada West/Ogba-Egbema Federal Constituency.
4. WHETHER the Electoral Act, the Peoples Democratic Party guidelines for primaries encourages God-Fatherism as the means of becoming party candidates in Nigerian election.”
(Bold font for emphasis).
The reliefs sought, in consequence of answers to be provided by the lower Court to questions enumerated above, are as follows:
“1. A DECLARATION THAT the criteria for the qualification and disqualification of persons who aspire to be candidates of the Peoples Democratic Party for the House of Representative general election through the process of primaries is circumscribed by the provision of paragraph 1, Part IV of the Peoples Democratic Party Electoral Guidelines to those criteria for the said House of Representative election set out under Section 65 & 66 of the Constitution of Federal Republic of Nigeria 1999 (as amended) and under the said sections there are no requirement for tax receipt timing and party dues payment, but membership of a political party.
2. A DECLARATION that the act of the 1st Defendant, its agents, privies, and servants however denying the Plaintiff the right to participate in election activities for House of Representative based on the tax clearance receipt timing and dues matter that has been paid prior to the primaries is wrongful, unfair, and biased act as same is not one of the criteria for qualification and disqualification prescribed under Section 65 & 66 of the Constitution of Nigeria, which by the provisions of Paragraph 1 of Part IV of the Peoples Democratic Party Guidelines for the said primaries is adopted as the ONLY CRITERIA for qualification and disqualification of persons.
3. A DECLARATION THAT the Peoples Democratic Party Election Guidelines does not contemplates a situation where third parties other than an aspirant obtains nomination forms and as such the collective forms purchased by the Governor of Rivers State and distributed amongst his anointed for the 2023 House of Representative Election does not meet the requirement of the Guidelines that stipulates that “an aspirant shall obtain” the nomination form and forms obtained by third parties were not obtained by the aspirant as required by the party’s guidelines.
4. A DECLARATION THAT in view of the provisions of Paragraph 1 of Part IV of the Peoples Democratic Party guideline for the House of Representative primaries the pronouncement that the Plaintiff is not cleared by the National Assembly Election Screening Committee is unconstitutional, null and void as it negates the criteria for the qualification and disqualification of aspirants.
5. A DECLARATION THAT the Plaintiff being the only aspirant that obtained his form in line with the party’s guideline for Ahoada West/Ogba-Egbema Federal Constituency at the close of sales of the forms is the only aspirant or candidate in the primary election for Ahoada West/Ogba-Egbema Federal Constituency and he be returned unopposed in the 1st Defendant’s party primaries for West/Ogba-Egbema Federal Constituency.
6. A DECLARATION THAT the 1st Defendant was in breach of the Plaintiff’s right to fair hearing as envisaged under Section 36 of the Constitution of the Federal Republic of Nigeria, having received the Plaintiff’s complaints, and failing, refusing, neglecting or ignoring to take steps to ensure that the Plaintiff is heard.
7. AN ORDER OF THE HONOURABLE COURT setting aside the result/report of the screening exercise for the Ahoada West/Ogba-Egbema-Ndoni Federal Constituency conducted and produced by the 1st, 2nd and 3rd Defendants dated 27th April, 2022 and submitted to the National Chairman of the Peoples Democratic Party vide the letter dated April 28, 2022 in so far as it relates to the Plaintiff and the 4th Defendant.
8. AN ORDER OF THE HONOURABLE COURT setting aside all further steps and processes taken by the 1st, 2nd and 3rd Defendants including the voting exercise, the counting, the return of the 4th Defendant as the candidates of Peoples Democratic Party for Ahoada West/Ogba-Egbema-Ndoni Federal Constituency and the issuance of the certificated of return to the 4th Defendant thereof that is predicated on the screening result/report for Ahoada West/Ogba-Egbema-Ndoni Federal Constituency that was produced by the 1st, 2nd and 3rd Defendants dated 27th April, 2022 and submitted to the National Chairman of the People Democratic Party vide the letter dated April 28, 2022.
9. AN ORDER OF THE HONOURABLE COURT directing the 1st, 2nd and 3rd Defendants to issue the Plaintiff with certificate of return, enter the Plaintiff’s name amongst the list of candidates and submit same to the 6th Defendant as an unopposed candidate of the 1st Defendant in the House of Representative Election for Ahoada West/Ogba-Egbema Federal Constituency for 2023 Election being the only person who validly obtained the primaries form in line with the guidelines of the party’s.
OR IN THE ALTERNATIVE
10. AN ORDER OF THE HONOURABLE COURT directing the 1st Defendant to set new electoral committee/delegates to conduct and hold primary election for the Plaintiff and the Defendant in accordance with Electoral Act for the House of Representative Primary Election for Ahoada West/Ogba-Egbema Federal Constituency for 2023 Election and submit the name of the successful candidates to the 6th Defendant.”
(Bold font for emphasis).
It is instructive to note that Section 152 of the Electoral Act, 2022 defines as aspirant as meaning “… a person who aspires or seeks or strives to contest an election to a political office.” It is the same definition provided for the word “aspirant” in the former Electoral Act, 2010 (as amended).
In paragraphs 17, 25 and 26 of the affidavit in support of the application (pages 9-10 of the record of appeal transmitted on 30/09/2022), the appellant testified as follows:
“17. THAT despite the fact that the 4th Defendant did not meet the requirement relating to the purchase of form, the 2nd and 3rd Defendant acting as cronies of the 5th Defendant in screening committee cleared only the 4th Defendant for the party’s primaries slated for end of May 2022 and suppressively did not clear me, who fully satisfied the conditions stipulate in the Constitution of the Federal Republic of Nigeria, the Constitution of Peoples Democratic Party 2017 which is hereto annexed and Marked as Exhibit H, the Electoral Act 2022 and the Guideline for the primaries on the ground that the timing on my tax clearance certificate and on issues of payment of party dues that are not anywhere mentioned in the said Constitution of the Federal Republic of Nigeria …
…
25. THAT my disqualification on the bases of the tax clearance timing and dues which I have paid is ill-motivated, aimed at short-changing me, who is duly qualified in line with the constitution of Federal Republic of Nigeria, the Constitution of PDP, the guideline for the primaries by the 5th Defendant who in a bid to grip the party under his feet is distributing forms as a medium of helping him with the parties presidential primary’s delegates as a person who emerge as candidates in the primaries are likely delegates for presidential primaries.
26. THAT 1st Defendant is about to hurriedly round up the process of the primaries by returning the 4th Defendant unopposed instead of me that is the only candidate for Ahoada West/Ogba-Egbema Federal Constituency who obtained the party nomination form in line with the guideline and to forward the name of the 4th to the 6th Defendant unless this Court urgently intervenes to correct the wrong meted against the Plaintiff via unlawful disqualification using criteria not prescribed under the Constitution of the party, the guideline and the constitution of Federal Republic of Nigeria. Annexed is a copy of the Peoples Democratic Party Constitution.”
At pages 539-540 of the record of appeal, the lower Court gave consideration to Section 84(14) of the Electoral Act, 2022 and paragraph 17 of the appellant’s affidavit and correctly concluded, as follows:
“Based on my examination of the averments of the Plaintiff/Respondents in the affidavit in support of the amended Originating Summons, particularly paragraph 17 thereto, which I reproduced above, the Plaintiff/Respondent did not show that he has actually participated in the primaries of the Peoples Democratic Party slated for end of May, 2022, but rather, that the screening committee did not clear him, and cleared only the 4th Defendant/Applicant.
In my view, by the provisions of Section 84(14) of the Act, it is an aspirant, who participated in the primary, that has capacity to complain that any of the provisions of the 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, that may apply for redress.
The view above is the position of the Courts in UKACHUKWU V. PEOPLES DEMOCRATIC PARTY & ORS (2014) 17 NWLR (Pt. 1435) pg. 134 at 140 and APC V. LERE (20200 1 NWLR Pt. 1705) Pg. 254 at 266, where the provisions of Section 87(9) of the Electoral Act, 2010 which is in perimateria with Section 84(14) of the Electoral Act, 2022 was considered.
Consequent upon the foregoing, I agree with the submission of the learned Senior Counsel for the 1st-4th Defendants/Applicants that the Plaintiff/Respondent has no capacity to institute the instant suit. I so hold.”
Now, what the lower Court stated, which seemed not to have been caught by the appellant is what Rhodes-Vivour J. S. C. stated in the case of A. P. C. v. Lere [2020] 1 NWLR (Pt. 1705) 254 at 284-285:
“I must at this stage explain the procedure for pre and post-primary elections. Before general elections are held, political parties hold primaries for the sole purpose of nominating from among its members, candidates to represent the parties, e.g. for Governor, the Senate and House of Representatives. The primaries are held in accordance with the Constitution of Nigeria, the party’s Constitution, party guidelines and the Electoral Act.
Party guidelines are similar in most of the political parties. Candidates are expected to obtain expression of interest and nomination forms, present their certificates for verification and appear before a Screening committee. This is the stage at which the domestic or internal affairs of the political party are not justiciable. The Courts will not dabble into how a member of the party is screened, or why a member was not cleared by the party to contest the primaries.
Put in another way, before a member of the party is cleared, the party has the power to disqualify their member, and is answerable to no one including the Courts. A dissatisfied member’s remedy is to leave the party and seek his political ambitions somewhere else. But once a member is cleared to contest the primaries, he becomes an aspirant.
If he contest the primaries but complains about the conduct of the primaries, that any of the provisions of the Electoral Act and the guidelines of his political party was not complied with in the selection or nomination of the aspirant who emerged at the primaries, his remedy is to apply to the Federal High Court or State High Court or a High Court of the Federal Capital Territory for redress. See Section 87(9) of the Electoral Act.
If a winner emerges from the primaries and the party announces him as the winner of the primaries, (in some parties a Certificate of Return is issued to the winner of the primaries by the Returning Officer) and there is no complaint from any of the aspirant about the conduct of the primaries, there is only one duty left for the party to do, and that is to submit the name of the winner of the primaries to Independent National Electoral Commission (INEC) as its candidate for the General Elections. The candidate whose name is submitted to Independent National Electoral Commission (INEC) represents the party for the post he contested and won at the party primaries.”
The appellant, who was – obviously and admittedly – disqualified from taking part in the party primary organized for the Federal Constituency in question, confessed to that fact before the lower Court in an affidavit and expected that fact to be overlooked. By the appellant’s own admission, he was not even supposed to show up in Court to challenge what he did not participate in. The appellant was not an aspirant by any stretch of the word, because he was not cleared to contest the primary election and did not actually participate in the exercise. Approaching the lower Court with his inchoate status as an ‘aspirant’ is simply an abuse of the process of the lower Court. The simple fact that the appellant proudly describes himself as an ‘aspirant’ does not automatically attach the status to him. Being an aspirant at a party primary is a matter of both law and fact. The appellant was never an aspirant, even if he elected to adopt the description as an appellation.
In the case of Maihaja v. Geidam [2018] 4 NWLR (Pt. 1610) 454 at 483, the Court confirmed as follows:
“The above position was also re-stated in Daniel v. INEC & Ors (2015) 3-4 MJSC 1 at 45, F -G; (2015) 9 NWLR (Pt. 1463) 113 that before a candidate for the primaries can have a locus standi to sue on the conduct of the primaries, he must be screened, cleared by his political party and participate at the said primaries. Anything short of that, the candidate who did not participate in the primaries could be conveniently classified as a meddlesome interloper with no real interest in the primaries.”
(Bold font for emphasis).
The appellant did not lead any evidence showing that he was screened, cleared or participated in the party primary organized by the 1st respondent. He is a meddlesome interloper.
The appellant’s case is a classic example of the types of cases Courts have been warned over the years to stay away from, being political questions which the Court is unsuited to provide answers to. The questions set by the appellant and the orders sought in the suit before the lower Court are an almanac of issues the Courts will not provide answers to. The questions do not qualify as issues covered by Section 84(14) of the Electoral Act, 2022. Cheekily, the appellant invited the lower Court to pronounce on ‘godfatherism’ as if ‘godfatherism’ is a thing for the law and the Courts. Amazingly, the appellant asked the lower Court (as if that Court is a Returning Officer) to declare/return him as an unopposed candidate!! The lower Court was begged to set aside the report of a screening committee of a political party!!! The appellant demanded a lot from the lower Court.
It is true that no member of a political party has the locus standi to question the party’s prerogative right on the issue of choice of candidates for elective office not even in the face of breaching of its rules and regulations. The political party is the proper body or person to know which of the aspirants it has cleared for the primaries and general elections afterwards. So long as the guidelines and constitution of the political party are not violated or breached, the Court has no power to question the choice of a party’s candidate presented for election. See the case of Gbenga v. A.P.C. [2020] 14 NWLR (Pt. 1744) 248 at 274 and PDP & Ors Ezeonwuka & Anor [2018] 3 NWLR (Pt. 1606) 187.
Another aspect of the case of the appellant before the lower Court is the revelation that he signed an undertaking as to forbearance, before embarking on his botched attempt to become an aspirant. At page 23 of the record of appeal, forming part of Exhibit B which the appellant brought to Court himself, it is proved by the appellant that he signed a statement, under oath, which stated as follows:
“That I agree to abide by the rules and regulations for candidates on the conduct of primaries which shall be in the overall interest and success of the PDP and as per guidelines and decisions of the National Executive Committee and any other guidelines issued for election into the Senatorial or as the case may be.
That I undertake to abide by the decisions of the party as final (and not subject it to any litigation whatsoever of adjudication by any other body including the Court of Law.”
A man who signs an undertaking or declaration, as copied above, like the appellant, should know that, that conduct – though casually viewed by its author – will have legal implications or outcomes. There is statutory implication for the declaration/undertaking of the appellant. A Court of law is bound to give effect to that declaration/undertaking when called upon to determine a dispute involving the undertaking/ declaration. This is because Section 169 of the Evidence Act, 2011 emphatically provides that:
“169. When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding himself and such person or such person’s representative in interest, to deny the truth of that thing.”
The appellant was allowed to submit Exhibit B and participate in the screening exercise by the 1st respondent upon signing Exhibit B. Like the lower Court noted and took a cue from, the spirit and intendment of the provision named above was applied in the case of Professor Jerry Gana v. SDP [2019] 11 NWLR (Pt. 1684) 510 at 535-537, (per Eko J. S. C.), where the Court clearly stated and confirmed as follows:
“There is no evidence on the record that the National Working Committee (NWC) or the National Executive Committee (NEC) of the SDP (1st respondent) had formally Zoned the Presidential Candidate of the party to the North or to the South, in furtherance of its zoning principle in Article 15.3(II)(a) of Exhibit I. The appellant’s grouse, apparently, is that the party allowed aspirants, including the 5th respondent, from the South to contest freely with other aspirants (including himself) from the North. There is also no evidence that the appellant, by way of a preliminary objection, protested the free-for-all contest, between the aspirants from the South and the North, before the Presidential Primary Election was conducted on 6th October, 2018. He seemed to have, himself, acquiesced in it. To underscore this acquiescence, it is averred in the counter-affidavit, paragraph 17 thereof, of 1st – 5th respondents that the appellant “participated in the primary election conducted by the 1st (respondent) without protest or objection made to any of the (respondents) during the screening exercise and the elective convention” of the 1st (respondent). Exhibit SDP 5, appellant’s Expression of Interest Form, wherein in Part D thereof, the appellant signed an undertaking “to support whoever emerges as the winner of the position we are contesting for” was exhibited to the counter-affidavit. I have not seen any renunciation by the appellant of the undertaking in Exhibit SDP 5 or a plea of non est factum, anywhere, in respect of that undertaking coming from the appellant.
On the undertaking by the appellant in Exhibit SDP 5, the 1st – 5th respondents, in their joint brief of argument, submit on the authority of Iga v. Amakiri (1976) 11 SC 1 at 12 – 13, Odua Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1 at 51, Ariori v. Elemo (1983) 1 SC 1; (1983) 1 SCNLR 1, Adeniji v. National Bank of Nigeria (1989) 1 NWLR (Pt. 96) 212 at 226, Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at 662, Mabamije v. Otto (2016) 652 NSCQR 852 at 877; (2016) 13 NWLR (Pt. 1529) 171 that it is unconscionable for a party who has benefited from an agreement to turn around to renege on his own undertaking, and the appellant’s undertaking in Exhibit SDP 5 amounted to waiver of a legal right beneficial to him, and estoppel by conduct. It is doubtful if the appellant, without the undertaking, would have been placed on the ballot as an aspirant. P. A. Akubo, SAN of senior counsel for the appellant, in the reply brief did not directly join issues on this. His response in paragraph 4.06 of the reply brief, evasively, is that the case of Ude v. Nwara (supra), as regards estoppel by conduct, “binds the 1st – 5th respondents hands and get feet with respect to the implementation of the amended Constitution of the 1st respondent before its final ratification on 6th October, 2018”.
I am in complete agreement with the 1st – 5th respondents that the appellant’s undertaking in Exhibit SDP 5 is adverse to the case of the appellant. The undertaking clearly makes it not right or unconscionable for the appellant to litigate on the very cause of action he had elected, expressly, not to exercise his right of action to litigate, and had in fact emphatically represented to the electors and the other aspirants that he would “support whoever emerges as the winner of the position we are contesting for”. Equity acts in personam and particularly on the conscience of the party against whom it is pleaded who, allegedly, had acted in a manner very iniquitous, unconscionable or immoral by operation of the rule of estoppel. In the words of Nnaemeka-Agu, JSC in Ude v. Nwara (supra) at page 662, a man is not allowed to blow hot and cold, to affirm at one time and to deny at the other, or, as it is said, to approbate and reprobate. Accordingly, on this principle and in view of his undertaking in exhibit SDP5 the appellant, a man of honour, is not allowed to mislead the 1st – 5th respondents into believing that he would support the winner of the contest between himself, on one hand, and the 5th respondent and others, on the other hand, and later turn around to litigate against them, particularly the 5th respondent who emerged as the winner of the contest.
It is clear to me, and I so hold, that the appellant can waive the right to dispute and litigate on the outcome of the Presidential Primary election he took part in on 6th October, 2018 since the right is personal and beneficial to him as an aspirant: Ariori v. Elemo (supra). The principle of estoppel by conduct, which has been codified into Section 169 of the Evidence Act, 2011, estops him from approbating and reprobating on his undertaking in Exhibit SDP5 to support whoever emerged from the contest he had with the 5th respondent and others on 6th October, 2018. That undertaking obligated him as a man of honour, conscience and principle to support the 5th respondent who emerged as the winner from the contest.”
By the undertaking mentioned above, the appellant implicitly waived his right to file his suit before the lower Court and he is estopped from reneging on his voluntary undertaking. It is the duty of the law and the Courts – as prescribed by Section 169 of the Evidence Act, 2011 – to insist that the appellant must retain his stature as a gentleman, who keeps to his words.
For the two reasons stated above, the lower Court was justified to hold, as it did, that it did not have jurisdiction to determine appellant’s suit.
Legal practitioners should assist the law and its enforcement, by ensuring that their clients are made aware or reminded that political parties have a special status and cannot be treated like every other person when matters of their internal affairs come up for determination. That limitation is what the law is, until that time when views and decisions may shift. As it stands, currently, attention should be paid to what the Court stated in the case of Agi v. P. D. P. (2017) 17 NWLR (Pt. 1595) 386 at 459 thus:-
“A political party is like a club; a voluntary association. It has its rules, regulations, guidelines and Constitution. Members join the party of their free will. By joining they have freely given their consent to be bound by the rules, regulations, guidelines and Constitution of the party. These rules of the party must be obeyed by all members of the party, as the party’s decision is final over its own affairs. When it comes to nomination of its candidate for election, the National Executive Committee of the party has the final say and whenever it approves or endorses a candidate to contest on the parties platform, he stands nominated and no other member can oppose that approval or nomination. The party is therefore supreme and has the final say or decision. (P.D.P. v. Sylva (2012) 3 NWLR (Pt. 1316) 85 referred to).”
I join His Lordship, Ridwan Maiwada Abdullahi, (JCA) in the leading judgment to puncture the appellate balloon of the appellant’s appeal at this point. I agree that there is no merit in this appeal. I agree with the consequential order(s) contained in the leading judgment.
Appearances:
Joseph Elleh, Esq. with him, C. I. Obimba, Esq. For Appellant(s)
E. C. Ukala, SAN with him, M. S. Agwu, Esq. and Okechukwu Omeodu, Esq. for 1st – 4th Respondents.
N. A. Timothy-Hart, Esq. for 7th Respondent. For Respondent(s)
