MRS. PAULINE MIANAEKERE v. PEOPLES DEMOCRATIC PARTY & ORS
(2014)LCN/6955(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of March, 2014
CA/A/328/2013
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
MRS. PAULINE MIANAEKERE Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. SENATOR MRS. HELEN ESUENE Respondent(s)
RATIO
WHETHER OR NOT TIME IS OF GREAT ESSENCE IN ELECTION MATTERS
It is trite that in election matters time is of great essence. In Hassan vs. Aliyu (supra) Onnoghen JSC had this to say at page 599 –
“In an election related matter time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminal proceedings.”
Also learned jurist Muntaka-Coomassie JSC at page 604 of the same case stated thus:-
“The candidate who was substituted at an election must act timeously to enforce his rights. Substitution and nomination being pre-election matters, the candidates must approach the competent court to seek for the enforcement of his rights before the real election takes place. Immediately the candidate was substituted, he should not wait for election to hold before seeking redress. If the election thereafter took place after the filing of the action having become sub-judice, it remains pre-election matter, even if the matter is fought to the Supreme Court. Where in the instant case, the candidate who was substituted did not take any step to seek redress before the election took place, and a candidate declared as the winner, and thereafter sought to be declared as the winner of the election, the matter would no longer be a pre-election matter. That means that his right to pursue a pre-election matter ceased after the holding of the election except only if the action was instituted before the holding of the election.”
Also Onnoghen, JSC said it all when the same report he went ahead to crown it allowed said as below:
“It is dangerous to lay the precedent that a party who was substituted wrongly or otherwise is at liberty to challenge the substitution or nomination by way of substitution of his opponent months or years or at any time during or even after the tenure of the elected government official and have the election annulled and himself declared the winner of governor by the regular courts. That will be ambushing the governorship seat at the gate of the judiciary which I think ought not to be encouraged. It is clear that at the expiration of the tenure of the incumbent governor of Niger State, the cause of action of the appellant would have been completely extinguished but that is what he ought to have known when he went to sleep over his right(s), if any. The above clearly demonstrates the fact that in election matters, whether pre-election or the election proper or election related matters, time is of the essence. It will do no one any good if the political system is kept heated up for months or even years after an election without giving those sworn peace of mind to steer the ship of the state in the right direction or fail in the process.”
Again the learned jurist also proceeded to hold at page 604 of the report as follows:
“…being pre-election matters, the candidates must approach the competent court to seek the enforcement of his rights before the real election takes place…. He should not wait for election to hold before seeking redress…his right to pursue a pre-election matter ceased after the holding (real) of the election except only if the action was instituted before the holding of the election.” PER SANUSI, J.C.A.
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): At the Federal High Court Abuja (the lower court) the appellant as plaintiff, filed an originating summons on 2nd December 2011 challenging her exclusion from the primary election conducted by her party, the 2nd defendant, now 1st respondent on 7th January, 2011. The said primary election was for senator representing Eket/Oron Senatorial District.
The 2nd defendant at the lower court, now 2nd respondent, is the Independent National Electoral Commission (INEC), the statutory body saddled with the responsibility of conducting general elections into various political offices by the Constitution of the Federal Republic of Nigeria 1999. The 3rd defendant now 3rd respondent herein, was one of the contestants at the primary election who was also the candidate declared and returned as the winner of the said primary election conducted by the 1st respondent (PDP).
Upon being declared and returned as the winner of the primary election by her party, the latter nominated her and submitted her name to the 2nd respondent INEC, as its candidate to contest the general election held on 11th April 2011 which she also won the candidature as senator representing the Eket/Oron senatorial district of Akwa Ibom State and was subsequently sworn in for that post in June 2011. The plaintiff/appellant became disenchanted with the declaration and return of the 3rd defendant/respondent by the party (1st respondent) alleging that she was unlawfully excluded in the primary election held on 7th of January 2011. Although the primary election was held on 7th January 2011, and general elections were held in April 2011, the appellant/plaintiff did not institute her action at the lower court until the 2nd December 2011, that is to say, 7 months after the general election and six months after the 3rd defendant/respondent was sworn in as distinguished senator.
In filing the suit, the plaintiff/appellant challenged the propriety of the primary election because according to her, she was unlawfully excluded from participating at the primary election by her party, the 2nd respondent herein, and she also stated that the tardiness in failing to file the suit at the lower court much earlier than she did, was because of psychological torture and trauma resulting in her attending hospital between January and September 2011, where she attended or visited occasionally. The gravemen of the complaint of the appellant is that the primary election which was earlier scheduled to take place on 8th January 2011 was held on the 7th of January 2011 by the 1st respondent without notifying her and that on the date fixed for the primary election, her name was excluded from the list of candidates to contest that election. According to her, she complaint to the party officials and its National chairman proved to no avail.
In view of the above background facts of the case, the appellant, as plaintiff at the lower court, filed the suit by way of originating summons which she supported with 40 paragraph affidavit and annexed Exhibits 1 to 10 to it. She also attached her written address dated 1/12/2011 (see pages 3 to 89 of the record). Upon being served with the originating process, each of the 1st, 2nd and 3rd defendants now respondents filed preliminary objection individually and each of them also filed its respective written address challenging the jurisdiction of the lower court contending that the suit was mere academic exercise. (See pages 94 to 104, 107 to 113 and 116 to 220 of the record).
The 3rd defendant/respondent also filed a counter affidavit in opposition to the originating summons. In reaction to the above mentioned processes filed by the defendants/respondents. The plaintiff/appellant filed a single written address dated 22/6/2012 replying to all the three notices of preliminary objection (see pages 243-259 of the record). Still, the 3rd defendant/respondent filed a Reply on point of law dated 11/7/2012 to the plaintiff/appellant’s written address (see page 295-300 of the record).
Furthermore, in response to the defendants/respondents’ respective arguments, the plaintiff/appellant filed a process which he called a Rejoinder to the third defendant/respondent’s ‘Reply on Point of Law’, wherein new or fresh issues were raised (see pages 301-303). Thereafter, the 1st defendant/respondent filed a counter affidavit annexing two exhibits and a written address in opposition to the suit and subsequently the plaintiff/appellant also filed a Further and Better Affidavit in response to the 1st defendant’s/respondent’s counter affidavit (see pages 313-400) of the record.
On the date fixed for hearing, the lower court decided to take the three preliminary objections and the substantive suit together. The lower court thereupon, invited all the parties learned counsel to adopt all the processes and written addresses which each of them filed and then reserved judgment. On the 7th day of May 2013, the lower court delivered its judgment and in its wisdom dismissed the appellant’s suit for want of jurisdiction to determine the suit as the plaintiff/appellant failed to file his suit timeously thereby rendering the suit as mere academic exercise.
Naturally, the plaintiff became disenchanted with the judgment of the lower court hence she appealed to this penultimate court and she filed a Notice of Appeal date 27th May, 2013 which contains four grounds of appeal (see pages 478-481 of the Record).
In keeping with rules and practices applicable in this court, learned counsel to the parties filed and exchanged briefs of argument. Out of the four grounds of appeal, the appellant formulated four issues for determination in his brief of argument as reproduced below:-
(1) Whether being regard to the appellant’s case, there is a statutory line limitation to commence an action on pre-election matter (ground 1)
(2) Whether having regards to Section 87 (4) (c) (i) and (ii) and Section 87 (9) of the Electoral Act 2010 (as amended) and the affidavit evidence the appellant can be said not to have commenced the action “Timeously”. (Ground 2)
(3) Whether the trial court properly evaluated and ascribed probative value to the documentary evidence tendered by the appellant before dismissing the reliefs claimed by the appellant (Ground 3) and
(4) Whether the trial court was right when it failed, neglected or refused to decide on the issues of malicous exclusion or fraudulent removal of the appellant’s name at the eve of primary election by the 1st respondent. (Ground 4)
In its brief of argument dated and filed on 8th October 2012 which was deemed filed on 5/11/2013, the 1st respondent raised two issues for the determination of this appeal as set out below:-
(a) Having regard to the claims of the appellant was lower court right in dismissing the appellant’s case on the basis of inordinate delay? (Grounds 1, 2, 3)
(b) In the light of the circumstances of this case, did the inordinate conclusion that the appellant’s case fails on the grounds of her indolence without more occasioning a miscarriage of justice.
On its part, the 2nd respondent whose brief of argument was dated 8/11/13 filed on 11/11/2013 and deemed filed on 12/12/2013 also encapsulated two issues for determination of the appeal which are very much similar to the ones filed by the 1st respondent in their wordings which I do not need to reproduce here.
The third respondent filed his brief of argument also dated 26/7/2013. In the said brief four issues for determination of the appeal were proposed as set out below:-
(i) Whether the learned trial judge was right to dismiss the case on the ground that the plaintiff/appellant did approach the court timeously. (Distilled from Ground 1)
(ii) Whether Section 87 (1) – (9) of the Electoral Act 2010 (as amended) confers on an aggrieved aspirant unlimited time to seek redress in the court (Distilled from Ground 2)
(iii) Whether the learned trial Judge was right to hold that Section 87 of the Electoral Act 2010 (as amended) does not protect the plaintiff/appellant who knew of the conduct of the primary election immediately it was conducted on the 7th January 2011 but did not approach the court until 2nd December 2011 i.e. a period of eleven (11) months after the conduct of the said primary election and seven (7) months after the main election (Distilled from Ground 3).
(iv) Whether the learned trial judge was bound to determine all the issue before him even when he had held that the case had been defeated by the plaintiff’s inordinate delays in seeking the enforcement of her alleged right in under Section 87(9) of the Electoral Act 2010 (Distilled from Ground 4).
It is pertinent to state here that the 3rd respondent had earlier filed a respondent’s notice of intention to contend that judgment of the lower court should be affirmed on grounds other than those relied on by the lower court.
However, at the hearing of the appeal on 12/2/2014, the learned counsel for the 3rd respondent decided to withdraw the said Notice of intention, which led this court to strike out both the said Notice and all the arguments proffered on it at pages 19 to 23 of the 3rd respondent’s brief as well as issues 5, 6 and 7 formulated on the said Notice of Intention at page 3 of the said brief of argument.
Closely looking at issues raised by learned counsel of various parties in this appeal, I am of the view that the two issues raised by the 1st and second respondents are germane for the determination of the appeal.
After carefully examining the issues for determination variously raised by the parties learned counsel, I make bold to say that the core and central issue revolves on the issue of the jurisdiction of the lower court to entertain and determine the appeal. All the issues raised by the parties relate or revolve on issue of jurisdiction except that some of the parties counsel simply played or used semantics to break their issues into part even though they more or less relate to issue of jurisdiction of the lower court, albeit with some kind of elaboration. Be that as it may, I am of the view that treating or approaching this appeal on the dual issues raised in the 1st respondent’s brief will comfortably and adequately determine the appeal. Even at the risk of being repetitive, I shall still reproduce the said dual issues raised by the 1st respondent in the brief again below, which are also very similar to those raised in the 2nd respondent’s brief and have also subsumed the issues raised in both the appellant’s brief of argument and those raised in the 3rd respondent’s brief of argument. The said two issues read as below and shall be considered together by me. The issues are:-
A. Having regard to the claims of the appellant was lower court right in dismissing the appellant’s case on the basis of inordinate delay?
B. In the light of the circumstances of this case, did the inordinate conclusion that the appellant’s case fails on the grounds of her indolence without more occasioning a miscarriage of Justice.
The learned counsel for the appellant submitted that the name of her client was illegally and maliciously excluded or removed by the first respondent as she averred in paragraphs 15, 16, 21, 22, 25, 26, 27, 28, 29, 33 (A and B), 34, and 36 (Pages 10, 11 and 12 of the Record) and she added that the said exclusion which led her to a stage of unconsciousness landing her to hospital for medical treatment. She said she later instituted her action at the lower court to seek redress after her discharge in compliance with the provisions of Section 87 (9) of the Electoral Act 2010 (as amended).
Learned appellant’s counsel submitted that the lower court failed to advert its mind to the provisions of Section 87 (9) of the Electoral Act or failed to give ordinary or literal and plain interpretation to the said provisions which wordings are plain, clear and unambiguous. He added that the wording of the said provisions stated that any party aggrieved by the conduct of primary election. “May apply to Federal High Court or High Court of a State or FCT, for redress.”
The appellant’s counsel further submitted that by its finding, the lower court tried to re-write the law by not giving the said provisions their natural, plain, literal and ordinary meaning which is outside its function. On interpretation of statutes, the learned appellant’s counsel cited and relied on the cases of Goli vs. Belief (2011) 9 EPR 307; Federal Capital Development Authority vs. The Governing Council of the National Industrial Training Fund (2011) AFWLR Pt. 560, page 1215 ratio 4 and 5; The Nigerian Navy vs. Navy Captain D. O. Olabunjo (2012) 50 NSCQR (Part 1) 236; Attorney-General Ondo State vs. Attorney-General Ekiti State (2001) 1 FWLR (Part 79) 1431; Attorney-General Abia State vs. Attorney-General of the Federation (2002) FWLR (Part 101) 1419 at 1491;
On the lower court’s finding that Section 87 (9) of the Electoral Act did not give the appellant liberty to be indolent by filing his action only eleven month after the primary election, the learned appellant’s counsel argued the trial court failed or refused to evaluate and consider Exh 8 which shows the ill-health condition of the appellant which she regarded as her defence for not filing the suit in court timeously. See A.M.C. (Nig.) Ltd v. Volkswagen of (Nig) Ltd. (2011) All FWLR (Pt. 588) 928.
The learned appellant’s counsel argued that immediately she realized that her name was excluded from the list of those to contest the primary election, she petitioned the National Chairman of the 1st respondent and also petitioned the Chairman, Appeal Panel of the 1st respondent assigned to her constituency as required by the Guidelines of the 1st respondent (PDP) as shown on her Exh PDP2. It was contended by the learned appellant’s counsel also, that the court failed to give consideration and evaluate Exhibits 8, 10 and 11, especially Exhibit 8 which gave or satisfied her sole reason why she did not approach the court earlier than when she did. See Lasun vs. Awoyemi (2011) All FWLR (Pt. 577) 718; Aregbesola vs. Oyinlola (2011) 9 EPR 1; Tippi v. Notani (2011) All FWLR (Pt. 583) 2007.
On the issue of alleged malicious exclusion, the learned appellant’s counsel submitted that the appellant was unlawfully excluded and the trial court failed or neglected to evaluate and decide one way or the other, the legality or otherwise of her exclusion. See Tanko vs. United Bank of Africa Plc. [2011] All FWLR (Pt. 556) 408. The learned counsel maintained that Section 87 (1) provides that all political parties should conduct primary election for all aspirants to all elective positions and also by subsection (3) of Section 87 of the Act, parties should give all aspirants equal opportunity of being voted for by members of the party at the primaries. Learned counsel therefore submits that in this instant case, his party the 1st respondent did not comply with the above provisions. He referred to Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) and Amaechi vs. INEC (2008) 6 NWLR (Pt. 1080) 227. In a further submission, the learned appellant’s counsel urged this court to order the swearing in of his client as senator representing this constituency so that it will serve as deterrent to both his party (1st respondent) and other political parties.
In reply, the first respondent submitted that the claims of the plaintiff/appellant borders on pre-election, or pre-primary matter or alleged wrongful exclusion from participating in primary election conducted by the 1st respondent to present its representative in the contest of general election as senator. He argued that there was no dispute that the primary election was held as admitted by the appellant and also there was no doubt that the 1st respondent won that primary election and after winning that election he also contested and won the general election held in April 2011. Also not in doubt, is the fact that the plaintiff filed her suit by Originating Summons, eleven months after the conduct of the primary election she sought to challenge by the institution of the suit. That she did, even seven months after the general election was held and over six months after 3rd respondent was sworn-in as Senator of the disputed constituency. On the appellant’s argument that Section 87(a) of the Electoral Act 2010 did not stipulate time limit within which a person aggrieved who took part in the said primary election on the conduct of the primary election and that an aggrieved party has choice of when to file suit challenging the primary election, he argued that it is an established rule that in pre-election matters, time is of essence and party challenging such election must do so promptly and without delay. See Uwuzurike vs. Nwachukwu (2013) 3 NWLR (Part 1342) 503 at 523/524 para H to D; see also the case of Hassan vs. Aliyu (2010) 17 NWLR (Part 1223) 547 at 600 para A-D. On the medical report tendered by the appellant i.e. Exh 8, the 1st respondent challenged and argued that, that report did not say that she was on admission in the hospital as an in-patient but was only a visiting out-patient though regularly, adding that the medical report did not state why the appellant/plaintiff did not file its suit when she was not on admission, or why she waited for yet another three months or even after the end of her management, before filing her suit.
The learned counsel contended on behalf of the first respondent, that the lower court was right when it held that the appellant was duty bound to challenge the primary election timeouslv but in this case the latter did not show compelling and justifiable reason for the eleven months delay in filing her suit at the lower court.
On the lower court’s finding that the appellant’s case fails on the grounds of her indolence and that such finding did not occasion miscarriage of justice and that by failing to make specific pronouncement on whether or not she was unlawfully excluded from the primary election of 7th January 2011, the learned appellant’s counsel argued that it is not in all cases that failure by court to resolve all issues will result to reversal of the decision of the court, adding that even then, the alleged non-resolution of all the issues did not occasion any miscarriage of justice. See Irola vs. Uke (2002) 14 NWLR (Pt. 786) 195 at 225; Ajuwan vs. Akanmi & Ors (1993) 9 NWLR (Pt. 316) 182 at 205/206; Bayero vs. FMBN Plc (1998) 2 NWLR (Pt. 538) 509 at 525; Parex vs. Afribank (2000) 7 NWLR (Pt. 663) 105 at 128.
The learned counsel further submitted on behalf of the appellant, that although in her supporting affidavit the appellant averred that the primary election which was earlier scheduled to hold on 8/1/2011 was instead held on 7/1/2011 without her being notified of the change of date or rescheduling of same thereby leading to her exclusion, the election held on 7/1/2011 was a kangaroo election omitting her name. Learned counsel argued that it was not a kangaroo election as the details of its conduct its and result were reflected in Exh.9 which she tendered and it was clearly shown that due process was followed in the conduct of the election and results and scores by participating candidates specified and the primary election was overseen or monitored by INEC, the 2nd respondent and was conducted with due compliance with the guidelines and constitution of the party, the 1st respondent. He also argued on this point, that documentary evidence override oral or any other evidence except when such documentary evidence is shown to have been obtained by fraud. See Oginyamo & Ors vs. Oluwole (2009) 16 NWLR (Pt. 1167) 391 at 407; CDC Nig. Ltd vs. SCOA Nig. Ltd. (2007) 6 NWLR (Pt. 1030) 300 at 366; Ogbe vs. Agdo (2009) 18 NWLR (Pt. 1172) 106 at 131, G-H; Ngei vs. Ano (2009) 7 NWLR (Pt. 1173) 254 at 273 para B; Aiki vs. Idowu (2009) 9 NWLR (Pt. 984) 47 at 65; INEC & Ors vs. Oshionmhole & Ors (2009) 4 NWLR (Pt. 1132) 607 at 665; Fayemi vs. Oniroy (2009) 7 NWLR (Pt. 1140) 223 at 291.
Again, the plaintiff/appellant urged the lower court to declare him winner of the primary election relying on the decision of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 453/454. In his response, the learned 1st respondent’s counsel argued that such submission could not be sustained, in view of the provisions of Section 141 of the Electoral Act 2010 as amended which provides that no court or tribunal is allowed to declare any person winner of an election in which such person had not fully participated in all the stages of the said election. He stated that the appellant by her own admission stated that she was excluded at the primary election conducted by 1st respondent and that she was not nominated for the general election and did not therefore participate at the election. Thus, having not participated in all stages of the election she cannot be declared winner thereof and sworn in as she prayed. He remarked that Amaechi’s case which was decided under Electoral Act 2006 is no long a valid law in the advent of Section 141 of the Electoral Act 2010 (as amended). See also Yusuf & Anor v. Obasanjo & Ors (2004) 18 NSCQR (Pt. 11) 477 at 508; AIC Ltd v. NNPC (2005) 22 NSCQR 903 at 925; Afro Continental Nigeria Ltd vs. Ayantuyi & Ors (1995) 9 NWLR (Pt. 420) 411 at 439. He finally urged this court to hold that no miscarriage of justice was occasion on appellant by the lower court’s dismissal of the appeal, in urging this court to resolve the issues against the appellant.
The arguments proffered by the 2nd respondent on the two issues he proposed for the determination of this appeal, tally with those proffered in the 1st respondent’s brief of argument which I have adequately summarised supra, except to say that in the said brief on the propriety of the lower court’s resolve to dismiss the appeal he heavily relied heavily on the decision of Hassan vs. Aliyu (supra) at page 1007 adding that the fact in this instant appeal are very much similar or are in all fours with the case of Hassan vs. Aliyu and he even added that the appellant’s position in Hassan’s case was even better than the appellant’s position in this instant case, because in the former case the appellant had even participated in the primary election yet he declared to be was indolent to challenge his substitution, while in this case the present appellant did not even participate in the primary election and despite the fact that she knew about the conduct of the primary election yet she did not care to immediately institute an action challenging it except after eleven months and seven months after general elections were held.
He added that the appellant also did not care to go to the tribunal which is the appropriate venue to ventilate his grievances. See Omega vs. Government of Ekiti State (2007) 16 NWLR (Pt. 1061) at 457 and Emenike vs. PDP (2012) 12 NWLR (Pt. 1315) 950; Amaechi vs. INEC (supra). He further placed reliance on the case of Salim vs. CPC (2013) All FWLR (pt. 677) 616.
Then on the alleged lower court’s failure to determine whether or not the appellant was wrongfully excluded, the learned counsel for 2nd respondent allegation that the 1st respondent did not follow the guidelines of the party, the learned counsel for 2nd respondent argued that the judgment of the lower court now being challenged, was judgment delivered on the merit of the case. He concluded that the appellant should have filed his action 3 months before the election since the 2nd respondent is a public officer under the provision of Section 2(a) of Public Officer’s Protection Act adding that this suit is incompetent same not been filed within 3 months.
Replying, the 3rd respondent in his brief of argument submitted that the appellant ought to have commenced his action timeously and not after the general election was held, hence he by not so doing, is deemed to have abandoned or waived his right to complain. He opined that the lower court was therefore right in dismissing the appellant’s action and he urged this court not to disturbed that finding of the lower court. He said time is of essence in pre-election matter and it is a misconception to argue or to suggest that where there is no specification of time to file an action in pre-election matter an aggrieved party could file his action at anytime, see Hassan vs. Aliyu (supra). Learned 3rd respondent’s counsel further submitted that this is purely a pre-election matter as the right of the appellant had ceased after the general elections were held; See Salirun v. Aliyu (supra).
He further argued that in view of the inordinate delay in filing his suit at the lower court, the appellant became indolent and had slept for so long hence she should not be disturbed from her slumber and the learned trial judge was correct in so holding.
Also, on the call by the plaintiff/appellant that this court should declare her the candidate of the 1st respondent for the primary election which she complained was conducted not in compliance with her party’s (1st respondent) guidelines and constitution, the 3rd respondent submitted that the 1st respondent contested the primary election among others and scored the highest number of votes cast and her name was sent to INEC (2nd respondent) as the party’s nominee for the election which had already taken place and which she (3rd respondent) had even won, hence the subject matter of the suit had been over taken by event and the relief he had sought is dead or spent. He further relied to Hassan’s case (supra) on this submission. In urging this court to hold that the lower court rightly dismissed her claims, he submitted that that, being pre-election matter not timeously instituted, the appellant’s right seized to exist after the holding of general election and that Section 87 of the Act as amended is not meant to give her unlimited time to challenge the outcome of the primary election especially in her inordinate delay in approaching the court to challenge the primary election.
With regard to the provisions of Section 87 (1)-(a) of the Electoral Act as amended and the appellant’s submission that the lower court erred in law in its application of the said provisions, he argued that any aspirant who feels aggrieved during or immediately after the nomination process of his party should timeously act by approaching the court to seek enforcement of his right before and not after the general election as done by the plaintiff/appellant herein. In any event, the learned counsel proceeded to proffer argument similar to those earlier advanced by the 1st and 2nd respondents which was summarised supra, and I feel I need not repeat here. Suffice it say however, that the learned 3rd respondent’s counsel also heavily relied on the cases of Hassan and Salim (supra). He also similarly repeated the submissions of learned counsel of the two respondents on Exh 8, the medical report advanced or exhibited and relied on by the plaintiff/appellant and their submission on that exhibit.
Also, he more or less repeated the submissions of the respondents’ counsel, submission on the lower court’s alleged omission to make pronouncement on the issue of exclusion of the appellant and called upon this court to set aside the decision of the lower court. The learned counsel for the 3rd respondent then went at length to repeat the arguments of his learned colleagues on Section 87(1) and (9) of the Electoral Act which as I said above, need not be repeated here.
As I remarked earlier, the appellant filed Reply brief with regard to or in response to the arguments contained in the 1st respondent’s brief of argument dated 18th October 2013 filed same day. In the said Reply Brief, the appellant tried to distinguish the facts in this instant appeal with those in the case of Hassan vs. Aliyu (supra) which the 1st respondent said they have similar facts. According to him, the present case deals with exclusion of the appellant on the eve of the primary election, whereas Hassan’s case dealt with wrongful substitution of a candidate after election adding that the facts of the two cases are not apposite. With regard to the inordinate delay in filing the suit, the appellant submitted that the delay was on medical ground as per Exhibit 8 and not intentional. All other argument posed in the Reply brief were mere repetition aimed at fine tuning those arguments he proffered in his main brief or at best are mere amplification of them which is not the aim or purport of filing Reply Brief. I do not therefore need to summarise them again here.
I think the central issue in which the learned counsel to the parties anchored their submission revolves on the interpretation given by the lower court to the provisions of Section 87(1) to (9) of the Electoral Act 2010 (as amended. In its judgment, the lower court when considering the said provisions in its judgment had this to say:-
“It is correct that Section 87(1)-(9) of the Electoral Act 2010 (as amended) has made provisions for the conduct of primary elections by political parties, but I am unable to understand the section as conferring on any aspirant who is aggrieved by the conduct of a primary election the option of seeking redress in the court at any time convenient to the said aspirant.”
It would therefore not be out of place or irrelevant if the provisions of Section 87(1) and (9) of the Act particularly are reproduced below for ease of reference. The said provisions read as below:-
Section 87 (1) and (9)
(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions;
(9) Notwithstanding, the provisions of the Act or rule of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of FCT for redress.
The appellant as plaintiff at the lower court made some salient averments in his affidavit supporting her originating summons some of the relevant averments are set out below for case of reference.
15. That upon the fulfillment of all the condition precedent set down by the 1st Defendant including payment of the prescribed fees, I paid and obtained Nomination form for the Senatorial Primary Election 2010 where I filled and was nominated to contest for the Eket/Oron Senatorial District of Akwa Ibom State of Nigeria and submitted same to the 1st Defendant.
16. That pursuant to the submission of all necessary forms and documents, I was screened by the Screening Committee of the 1st Defendant and the same Committee found me transparently credible with election viability and sufficiently suitable to participate in the Primary Election. I was given a clearance certificate in this respect and same is herewith marked and used as Exhibit “7”.
21. That surprisingly, without any notification of change in date, the 1st Defendant retracted the earlier date and suddenly held the Primary Election on January, 2011.
22. That after the abrupt change in the said date of the Kangaroo election in which my name was voluntarily excluded, the 1st Defendant allocated and/or apportioned these scores to the aspirant as follows:
Hon. (Mrs.) Helen Esuene 1,467, nominated
Sen. (Mrs.) Eme Ufot Ekaette 433
Dr. Esio Okwang Udo 116
Mrs. Pauline N. Miaaekere (Plaintiff) NIL
A copy of the Report of the PDP (1st Defendant’s) National Assembly Primaries in Akwa Ibom State is hereby attached and marked as Exhibit “9
25. That my name was deliberately and voluntarily excluded after I was cleared by the 1st Defendant’s Committee to contest. A copy of the said result/score sheet of the said primaries is hereto attached and marked as Exhibit “9”.
26. That pursuant to paragraph 21 and 22, I immediately petitioned the 1st Defendant. A copy of the said petition dated 8th January 2011, is hereto attached and marked as Exhibit “10”.
27. That while awaiting the response of the 1st Defendant as pertaining my petition, I suffered severe psychological torture and phsyiognomical trauma and consequently I was admitted in the hospital for urgent medical attention, my medical report is pleaded and marked Exhibit “8”, attached hereto.
28. That on been discharged from hospital, I realised and discovered that the 1st Defendant indeed sponsored the 3rd Defendant for the Election of Eket/Oron Senatorial District of Akwa Ibom State.
29. That the sponsorship of the 3rd Defendant by the 1st Defendant does not comply with the Electoral Act, 2010 (as amended).
31. That I know as a fact that the only method through which a candidate of the 1st Defendant for any election can be eligible to contest and lawfully participate in the Primary Election is by complying with its own constitution, Guidelines and Electoral Act.
32. That I know as a fact that the failure of the 1st Defendant to comply with its own constitution, Guidelines and Electoral Act, invalidates and annuls the said Primary Election.
33. That I also know as a fact that if the said primaries was held on the 8th of January 2011, I would have won the election.
33. That I also know as a fact that the 1st Defendant has not taken any action to regularise the injustice I suffered by wilful and unjustifiable act of the 1st Defendant.
From the averments of the appellants above which came from her own mouth it is as clear as crystal that the plaintiff/appellant that she did not participate at the primary election which its party, (1st respondent), held on 7/1/2011. There is no gain saying that from the aforementioned averments of the appellant, that the suit that she instituted is a pre-election matter going by the provisions of Section 87(9) of the Electoral Act 2010 as amended. This is moreso, if one considers the provisions of Section 87(10) of the Act which clearly prevents a court from stopping the holding of primaries or general election pending the determination of a suit. This therefore presupposes that any breach of the provisions of the Act and the guidelines of political parties must have occurred before the primary election. Therefore, the appellant herein, does not come within the meaning or definition of “an aspirant”. This is so because in the case of PDP vs. Sylva (2012) 13 NWLR (Pt. 1316) 865 while interpreting the provisions of Section 87(9) of the Act held at 95 of the report as below:-
“…for any member of a political party to question any result of a party primaries conducted under the Act he must bring himself within the ambit of an “aspirant, that is, a member who has participated on the party’s primaries, otherwise his action is not maintainable for want of locus standi. He must be a candidate duly screened by the party for primaries and is aggrieved in one way or another by the process. In the instant case, the 1st respondent did not participate as a candidate in the appellant’s primaries…
Not being a candidate, the 1st respondent could not be heard to complain about the conduct of the primaries…” (emphasis supplied)
Now from her averments reproduced supra, the appellant admitted that he did not participate at the primaries election at all because according to her the said election was re-scheduled without her knowledge and she even went further to reproduce the score sheet where she was marked to have scored nil. She therefore did not come within the definition/meaning of an “aspirant” in the surrounding circumstance. Although appellant argued that she was not notified about the date the primary election was rescheduled, to hold there was no cogent evident adduced by her to really show that she was not aware about the re-scheduling of the said election by her party to hold on 7/1/2011 instead of 8/1/2011.
This now brings me to the propriety of the lower court’s finding on what it called “untimeous” filing of the suit before it at the lower court. It is the view of the appellant that there is no time stipulated by the Act with regard to the time within which a party member aggrieved by the conduct of primary election shall file his suits challenging non-compliance with guidelines of the party or exclusion from participating in primary election. Learned counsel referred to the lower court’s holding its judgment as follows:-
“As election related matters and offices are governed by time, then a person with a genuine complain on the conduct of any election related matter shall approach the court timeously” (pages 475 paragraph 3, of the record)… Also the learned Trial Judge held thus “However in the case at hand, the plaintiff knew of the alleged conduct of the Primary Election for Eket/Oron Senatorial District immediately it was allegedly conducted on the 7th January 2011, but did not come to the court until 2/12/11, that is a period of 11 months after primary election was conducted and 7 months after the general election was conducted. Surely, should the court come to the aid of such an indolent plaintiff?” Pages 474 (at the middle of the Record).
Now although I agree with the learned appellant’s counsel’s submission that the provisions of Section 87 of the Act did not specifically stipulate time within which to file suit or seek redress on his exclusion, I do not agree with the insinuation that an aggrieved person will go to sleep without filing his action within reasonable time. It is not in dispute that the appellant filed her action eleven months from the date the primary election was held or seven months after the general elections were held and also six months after the 1st respondent was sworn-in as winner of the general election. That clearly shows that she went to slumber just to wake up at the 23rd hour of the day and run to court to seek redress. It is trite that in election matters time is of great essence. In Hassan vs. Aliyu (supra) Onnoghen JSC had this to say at page 599 –
“In an election related matter time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminal proceedings.”
Also learned jurist Muntaka-Coomassie JSC at page 604 of the same case stated thus:-
“The candidate who was substituted at an election must act timeously to enforce his rights. Substitution and nomination being pre-election matters, the candidates must approach the competent court to seek for the enforcement of his rights before the real election takes place. Immediately the candidate was substituted, he should not wait for election to hold before seeking redress. If the election thereafter took place after the filing of the action having become sub-judice, it remains pre-election matter, even if the matter is fought to the Supreme Court. Where in the instant case, the candidate who was substituted did not take any step to seek redress before the election took place, and a candidate declared as the winner, and thereafter sought to be declared as the winner of the election, the matter would no longer be a pre-election matter. That means that his right to pursue a pre-election matter ceased after the holding of the election except only if the action was instituted before the holding of the election.”
Also Onnoghen, JSC said it all when the same report he went ahead to crown it allowed said as below:
“It is dangerous to lay the precedent that a party who was substituted wrongly or otherwise is at liberty to challenge the substitution or nomination by way of substitution of his opponent months or years or at any time during or even after the tenure of the elected government official and have the election annulled and himself declared the winner of governor by the regular courts. That will be ambushing the governorship seat at the gate of the judiciary which I think ought not to be encouraged. It is clear that at the expiration of the tenure of the incumbent governor of Niger State, the cause of action of the appellant would have been completely extinguished but that is what he ought to have known when he went to sleep over his right(s), if any. The above clearly demonstrates the fact that in election matters, whether pre-election or the election proper or election related matters, time is of the essence. It will do no one any good if the political system is kept heated up for months or even years after an election without giving those sworn peace of mind to steer the ship of the state in the right direction or fail in the process.”
Again the learned jurist also proceeded to hold at page 604 of the report as follows:
“…being pre-election matters, the candidates must approach the competent court to seek the enforcement of his rights before the real election takes place…. He should not wait for election to hold before seeking redress…his right to pursue a pre-election matter ceased after the holding (real) of the election except only if the action was instituted before the holding of the election.”
The learned counsel for the appellant tried to distinguish the facts of this instant case from the facts in Hassan’s case. I am however not with the said learned counsel on that point in that, the apex court in Hassan’s case, went at length to interprete Section 87 of the Electoral Act where the highest court of the land gave elaborate interpretation of the said provisions even though no specific time limit was given or provided or stipulated therein, but yet the apex court deplore attitude of persons aggrieved by non-compliance of guidelines of his party who fails or neglect to seek court redress in such election matters within reasonable time, after all, both Hassan’s case, and the instant case, the appellant was indolent and as such his failure to file her action timeously and also his failure to institute any action at the election tribunal had further worsened her position to challenge his alleged exclusion. In the case of Salim vs CPC (2003) All FWLR (Pt. 677) the same Supreme Court scrutiny puts it thus:-
“The issue of disqualification, nomination, substitution and sponsorship of candidate for an election precedes election and are therefore pre-election matters… the trial High Court lacked jurisdiction, which situation affected the process in the Court of Appeal and also the Supreme Court.”
Also in his contributory judgment, Akaah’s JSC more plainly put it thus:-
“…..where the election has taken place, any grievance arising from the nomination exercise can only be entertained by the election tribunal on the ground that the petitioner or its candidate was validily nominated but was unlawfully excluded from the election (Section 138(1)(d) of the Electoral Act 2010 (as amended)… the High Court Kano no longer had the power to adjudicate over disputes concerning the nomination of candidate for the election. The Kano State High Court was therefore right to decline jurisdiction……”
Then on the appellant’s apparent reliance on Exh. 8, i.e. her medical report, I am at one with the learned respondent’s counsel submissions that the ailment suffered by her could not have prevented her from filing her action within a much earlier time rather than waiting behind for eleven months. In the instant case, the 3rd respondent had already contested and won the general election while the appellant did not even participate at the primary election as could qualify her as an aspirant in the election. With due deference to the learned counsel for the appellant, Amaechi’s case is no longer applicable law in view of the provisions of the 2010 Electoral Act which provides that only an aspirant or someone who is a participant at an election has jurisdiction to challenge its conduct or on ground of any breach of electoral law or guidelines of the party. She cannot for that reason be returned winner at the election.
The learned appellant’s counsel also urged us to set aside the judgment of the lower court because it failed to make pronouncement on her complaint of malicious exclusion or the fraudulent removal of her name on the eve of the primary election. With due respect to the learned counsel for the appellant, I do not share that view with him that the judgment of the lower court should be set aside simply because the trial judge failed to address the issue of exclusion. I am of the view that the trial court based its judgment largely on lateness in filing the action which relates to jurisdiction to adjudicate on the matter due to her tardiness in filing the action before it. Since the court declined jurisdiction as the suit was not filed timeously. There was therefore no need to make pronouncement on her exclusion or its propriety. In any case the appellant failed to show how miscarriage of justice was occasioned her.
The learned appellant’s counsel also complained of alleged non-evaluation of exhibit 8 i.e. the medical evidence and relying on the authority of Kwara vs. Lai Innocent (2010) 7 EPR 523. I am not with the learned counsel for the appellant when he said the trial court did not evaluate Exhibit 8 i.e. medical report. This is because on pages 474/475 of the Record, the lower court stated or finds that “Exhibit 8 failed to explain why the appellant waited another three months or so after the cessation of her management at the facility before filing her suit.”
Finally, in the surrounding circumstances of this appeal, the two issues for determination are hereby resolved in favour of the respondents and against the appellant. The appeal is therefore adjudged unmeritorious. It fails and is accordingly dismissed. The judgment of the lower court is hereby affirmed. Cost assessed at N50,000 is awarded to the first and third respondents only against the appellant.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my lord, Aminu Sanusi, JCA, OFR. I am in agreement with the reasoning leading to the conclusion dismissing this appeal.
I also dismiss the appeal as unmeritorious, with the cost of N50,000 costs to the 1st and 3rd Respondents only.
Appearances
David Okokon with Ukpe EfeFor Appellant
AND
V. Y. Kiran for 1st respondent.
Abdulaziz Sani with Ibrahim S. Mohammed, Mrs. Bukunola Bada and Adenike Adedeji Mrs. for the 2nd respondent.
Miss Chinyere E. Uzuegbunam with Prince Igajah and Victor Ogbonna Esq., for the 3rd respondent.For Respondent
