OGWULEGBO & ORS v. PDP
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, May 07, 2021
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
- CHIEF JOSEPH OGWULEGBO 2. HILDA IHEMTUGE 3. SOLOMON AGHAMS 4. LONGINUS ONWUSONYE 5. PASCHALL ABIAKA 6. SALOME OHASIRI 7. PATRICK EMEAKAMA 8. LINUS UBOCHIOMA 9. MMADU DESMOND 10. OGECHI ONYEJIUWA 11. DESMOND UGOCHUKWU 12. EMMANUEL NWACHUKWU 13. AUGUSTINE ONYENAWULI 14. UGOCHUKWU CHRISTIAN 15. OGECHI MBATA 16. CHUKWUMA IGBOEJESI 17. HON. PETER EKECHUKWU 18. HON. ADOLPHUS EGESI 19. CHIEF JUSTICE UNANKA 20. HON. CHINYERE UKAEGBU 21. KIZITO USUAGWU 22. CYRIAN NWAGU 23. SAMUEL OPARAUGO 24. UCHE AZORO 25. PAULINE OZURUIGBO 26. PETER EDOZIEM 27. OZIOMA AMAECHI 28. OKECHUKWU OKOROIWU 29. JOSEPHINE AGBAWO 30. AMAECHI OKPE 31. EMMANUEL NNOCHIRIM 32. ANTHONY UKA 33. CHRISTAUGONUS OPARA 34. JOSEPH OPARA 35. STEPHEN MADU 36. ONYEWUCHI NWANERI 37. EMMANUEL MMADU 38. CHIEF CHARLES EMEREOHO 39. AUSTIN UZOIGWE 40. CHARITY NGANYA 41. NGOZI IHUARULAM 42. LEONARD IFEANYI UZOESHI 43. CHARITY UCHEHARA 44. HON. CYRIL EGESI 45. GABRIEL UBOCHI 46. JOHN ONYEJELE 47. NDIDI AKA 48. BARNABAS NWANEKWU 49. BASIL UKA 50. CALLISTUS AGO 51. ROSITA OKWU 52. CHIEF DAMIAN DURU 53. ALPHONSUS EMETO 54. EDMUND NWAIWU 55. NGOZI EGBUFOR 56. JOYCELINE CHUKWUKERE 57. CHIBUIKE AMARIKWA 58. OKECHUKWU IGBOECHE 59. MICHAEL EMMANUEL CHUKWUEMEKA 60. EMELDA IWUAMADI 61. JULIANA BONIFACE 62. HENRIETTA CHIKERE 63. PAULY NWACHUKWU 64. KELVIN ECHEKA 65. JOSEPHINE OGUNYE APPELANT(S)
PEOPLES DEMOCRATIC PARTY [PDP] RESPONDENT(S)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State delivered on 1/7/2020 by T.E. Chukwuemeka-Chikeka J sitting in the Owerri Judicial Division.
The summary of the facts leading to the appeal are that the Appellants, as Plaintiffs before the lower Court, were disgruntled, that as registered members, they were precluded from participating in the Ward and Local Government Congress of their party, the People’s Democratic Party (PDP) in Imo State. They accused the Respondent of hoarding and refusing to sell nomination forms to them, contrary to the Party’s constitution, yet availing “a few selected individuals”. They were thus deliberately excluded from the said elections.
They filed an Originating Summons before the lower Court and motions for injunctive orders, in response to which the Respondent filed a Preliminary Objection challenging the jurisdiction of the Court to intervene in the internal affairs of a political party. Upholding the objection, the Court, in its ruling, which has been appealed against, struck out the suit, thus culminating in the instant appeal.
The Amended Notice of Appeal filed on 10/8/2020 but deemed properly filed on 7/9/2020 contained 10 grounds of appeal.
The Appellants, in prosecution of their appeal, filed their Brief of Arguments on 7/9/2020, settled by Clifford Nnanta Chuku Esq. of Clifford & Clifford Esquires in which two issues were formulated for determination, as follows:
1. Whether given the facts and circumstances(s) necessitating the filing of the motion on the notice for restorative and/or mandatory injunction on 18/03/2020, the Respondent was in contempt of Court and as such, the trial Judge, instead of striking out the said motion was bound to hear and determine same first before the Preliminary Objection?
2. Whether given the totality of facts stated in the originating summons, affidavit in support, ancillary processes and Exhibits before the lower Court, the judgment of the Court is perverse and liable to set aside, if so, can the Court of Appeal assume jurisdiction to hear and determine the case on the merit? (Distilled from Grounds of Appeal 1, 2, 4, 5, 6, 7, 8, 10)
In its reaction, the Respondent filed a Notice of Preliminary Objection, on 15/9/2020, argued in the Respondent’s Brief of Arguments which was filed on 29/9/2020 at Pages 4-14 thereof. The said Brief of Arguments, settled by C.A. Nnawuchi Esq, distilled a single issue in respect of the Preliminary Objection and also a sole issue for determination of the appeal, in the event that the Preliminary Objection proved unsuccessful.
The Preliminary Objection shall accordingly be taken first, as its success may determine the appeal.
Notice of Preliminary Objection
The Respondent’s Counsel, in the Notice of Preliminary Objection, urged this Court to strike out the appeal for being incompetent, on the following grounds:
1. That grounds 1, 2, 3, 4, 5, 6, and 9 are not complaints about the ratio decidendi of the judgment appealed against and are, therefore, liable to be struck out;
2. That issue 1 of the Appellant’s Brief, having been distilled from incompetent grounds 3 and 9, is liable to be struck out;
3. That issue 2 of the Appellant’s Brief, despite being distilled from competent grounds 7, 8, and 10, is incompetent having been distilled also from incompetent grounds 1, 2, 4, 5, and 6, which infected it with incompetence and is, therefore, liable to be struck out.
4. That based on the above, there is nothing left to sustain the appeal, and it is thus, liable to be struck out.
The sole issue formulated in the Respondent’s Brief of Arguments for determination of the Preliminary Objection, is:
Whether the appeal is untenable, thus liable to be struck out.
Arguing this issue, learned Counsel to the Respondent submitted that grounds 1, 2, 3, 4, 5, 6 and 9 of the Amended Notice of Appeal do not challenge or attack the ratio decidendi of the judgment of the trial Court. Issues for determination, he said, must be distilled from the grounds of appeal, which must, in turn, stem from the ratio decidendi of the decision appealed against. Where a ground of appeal purports to flow from the ratio of the judgment appealed against, when, in fact, it does not, the said ground is incompetent and cannot be saved from being struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination. He cited the cases of Honika Sawmill (Nig.) Ltd V. Hoff  2 NWLR (PART 326) 252; C.P.C. v. INEC & ORS  18 NWLR (PART 1279) 493 AT 532, PARA. H; Achonu V. Okuwobi  LPELR-42102 (SC), per EKO, J.S.C. at 44-45, PARAS. G-C. As issue (1) was distilled from grounds 3 and 9 of the Amended Notice of Appeal which are incompetent, issue (1) is also incompetent and should be struck out.
He further argued that where issues are distilled from a combination of competent and incompetent grounds of appeal, they are in themselves not competent and are liable to be struck out, citing Ogundipe V. Adenuga  ALL FWLR (PART 330) 206; Jev V. Iyortyom  NWLR (PART 1428) 575; Sanmi V. State  LPELR-47418 (SC).
With regard to the 2nd issue distilled by the Appellants, he submitted that this issue having been distilled from a combination of incompetent grounds 1, 2, 4, 5, 6 and competent grounds 7, 8 and 10, has been rendered incompetent as it has been “infected” by the incompetent grounds. The Court has no duty to sieve arguments of competent grounds from arguments on incompetent grounds. Thus, if grounds 1, 2, 3, 4, 5, 6 and 9 of the Amended Notice of Appeal are struck out and so also issues (1) and (2) of the Appellants’ Brief of Arguments, there will be nothing left to sustain the appeal.
In the Appellants’ Reply Brief filed in response, Counsel accused the Respondent’s Counsel of arguing the Preliminary Objection as one of the issues for determination in the substantive appeal. He also attacked issue 1 formulated by the Respondent as being incompetent, not having arisen from any of the grounds of appeal. Furthermore, as issues for determination in any appeal are derived from the grounds of appeal filed by the Appellant, any issue not distilled from any of such grounds is incompetent. Also, as none of the Appellants’ Grounds of Appeal complained of the competence of the appeal, the Respondent’s issue as to whether the appeal is competent has no place in the determination of the appeal, the Respondent not having cross appealed.
RESOLUTION OF PRELIMINARY OBJECTION
In order to determine the viability of the Appellants’ Grounds of Appeal and the issues formulated therefrom, it is necessary to set out the decision of the Court below.
The lower Court, in its “judgment” appealed against, set out the questions for determination in the Originating Summons filed by the Appellant, together with the reliefs sought. It also noted the counter-affidavit filed by the Respondent and the Appellants’ Reply to these processes. It referred to the Preliminary Objection filed by the Respondent, setting out the grounds thereof.
In determining the Preliminary Objection, it summarised the case of the Appellants thus:
“The complaint of the Plaintiffs therefore is that they were not allowed to purchase the nomination forms as none was sold to them. According to them, the Chairman and Secretary, each time they went to purchase forms, told them that the forms had not been sent to their State Secretariat.”
In upholding the Preliminary Objection, it held:
“The Supreme Court in a number of cases have held (sic) that a political party is a club that has its rules, regulations and constitution which the party members must adhere to. That the Court will only interfere where those rules etc. are violated. See the cases of: Agi Vs. P.D.P (2016) L.P.E.L.R 42578 S.C. PAGES 31 AND 94 Paras D-E, 95; Gana Vs. S.D.P. & Ors. (2019) L.P.E.L.R. 47153 S.C. Paragraphs 32-35.
The Learned Counsel to the Plaintiff made reference to Sections 2, 6 (1), 8 (1), 11 (1) and 49 (2) of the People’s Democratic Party (P.D.P.) Constitution.
…In this case, though Plaintiffs cited some provisions of their Party’s (P.D.P.) Constitution [sic] they have not been able to prove to the Court the Section violated which is contrary to the provisions of the Electoral Act, in order for the Court to have jurisdiction.
The Sections cited by the Plaintiffs in the Party’s (P.D.P.) Constitution, which the Court reproduced, were general principles of the party not pinned to any violation. The fact that the Plaintiffs went to their party’s office to purchase Nomination Forms and were informed by the State Chairman and Secretary that the forms had not arrived, does not constitute a violation of any provision of their Party’s Constitution or the Electoral Act.
…From the totality of the above, I hold that the Applicant/Defendant’s Application succeeds.
The Preliminary Objection having succeeded, the suit is hereby dismissed, the Application for restorative injunction is struck out.
I make [sic] the order as to cost.”
The grounds of appeal objected to by the Respondent are grounds 1-6 and 9.
Ground 1 complains of a misdirection in law by the trial Court in failing to take cognisance that the complaint of the Appellants was not that they “are registered members of the Peoples Democratic Party (PDP)” but that “as registered members” of PDP, they are entitled to purchase nomination forms to participate in the Ward and Local Government Congresses of the Party, having indicated interest. Therefore, the substitution of “as” for “are” by the trial Judge caused the Court not to comprehend the case of the Appellants to be one of membership of a political party.
In ground 2, the Appellants’ complaint against the judgment of the trial Court is that the Respondent filed certain processes out of time with the leave of Court, subject to payment of default fees within three (3) days from the date leave was granted. However, there was no verifiable evidence before the Court, before or during delivery of judgment, that the default fees had been paid as ordered by the Court.
Grounds 3 and 9 quarrel with the fact that the trial Court did not first determine the Appellants’ application for restorative or mandatory injunction, before the Respondent’s preliminary objection. Grounds 4 and 5 complain about the manner in which the trial Court summarised the case of the Appellants.
Ground 6 is a complaint that the trial Court misconceived the case and arguments of Counsel to the Appellants. This, they said, is because, while the Court understood his argument to be that the case does not fall within the internal affairs of the Party, Counsel’s argument was to the effect that, notwithstanding the fact that it is an internal affair of the Party, the case constitutes an exception where the Court will interfere with regard to intra-party matters.
I agree with learned Counsel to the Respondent that grounds Nos. 1, 2, 3 and 9 do not arise from the ratio decidendi of the case.
The “ratio decidendi” of a case is the reason relied upon by the Judge for the judgment, while the “obiter” is the Judge’s passing remarks, which have nothing to do with the live issues for determination in the matter. In principles of stare decisis, an obiter is not binding but has persuasive force. For a ground of appeal to be valid and competent, it should constitute a challenge to the ratio of the decision on appeal, I hold. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 339 Para E-H per Kekere-Ekun, JSC; Oguebego v. Peoples Democratic Party (2016) 4 NWLR Part 1503 Page 446 at 472 Para E-F per Okoro JSC; Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015)7 NWLR Part 1459 page 577 at 591 Para F-G per, Rhodes-Vivour, JSC.
It is settled law that grounds of appeal which do not arise from the ratio decidendi are incompetent and liable to be struck out and I accordingly strike out grounds 1, 2, 3 and 9.
Grounds 4, 5 and 6 however do arise from the judgment of the Court, I hold, and are thus competent.
With regard to the issues formulated, while I agree with the Respondent’s Counsel that issue No. 1, which is culled from the incompetent grounds 3 and 9 is rendered incompetent, issue No. 2, which I note is based largely on competent grounds 4, 5, 6-10 are competent, I hold. I, in consequence, strike out the 1st issue distilled by the Appellant for determination but sustain the 2nd issue for determination, as competent.
The Preliminary Objection thus succeeds in part and grounds 1-3 and 9 are struck out, together with issue No. 1 based thereon.
Issues for determination
Having struck out the 1st issue for determination formulated by the Appellants, the remaining issue is the following:
Whether given the totality of facts stated in the originating summons, affidavit in support, ancillary processes and Exhibits before the lower Court, the judgment of the Court is perverse and liable to be set aside, if so, can the Court of Appeal assume jurisdiction to hear and determine the case on the merit?
The sole issue distilled by the Respondent’s Counsel is the following:
Whether the judgment of the lower Court is liable to be set aside
I shall adopt the issue distilled by the Appellants’ Counsel as the issue for determination but shall sub-divide it, for precision, as follows:
1. Whether or not given the totality of facts stated in the originating summons, affidavit in support, ancillary processes and exhibits before the lower Court, the judgment of the Court is perverse and liable to be set aside?
2. If issue No. 1 is answered in the affirmative, whether this Court should assume jurisdiction to hear and determine the case on its merits?
Having adopted the Appellants’ issue as that which arises for determination, I find it unnecessary to accede to the Appellants’ request to go into a discourse about the competence of the Respondent’s issue.
The 1st issue for determination is:
Whether given the totality of facts stated in the originating summons, affidavit in support, ancillary processes and exhibits before the lower Court, the judgment of the Court is perverse and liable to be set aside?
Answering this issue in the affirmative, learned Counsel submitted that the basis of the dismissal by the lower Court of the Appellants’ suit is that it lacked jurisdiction to entertain the suit on the ground that it was an internal party affair. He submitted that there is no provision in the Constitution or of subsisting statutes in Nigeria ousting the jurisdiction of Courts from interfering with internal affairs of a political party or disputes between members of the party and the party. It is merely a general principle developed by the Courts. Access to Courts is however a constitutional right which can only be taken away by a provision of the Constitution or by implication or speculation. Where the parties fail to abide by their own rules, the Courts will interfere, he submitted, citing the cases of Agi v PDP (2016) LPELR-42578 (SC) per Rhodes-Vivour, JSC; Gana v SDP (2019) LPELR-47153 (SC) per Kekere-Ekun, JSC.
Counsel complained that the lower Court, even though it agreed with these positions, misconstrued the Appellants’ case and did not take cognisance of the facts deposed to in the Originating Summons or in the documents exhibited, which the law compels the Court to have scrutinised, citing Mohammed v Abdulkadir (2007) LPELR-8994 (CA); Fagunwa v Adibi (2004) LPELR 1229(SC). He distinguished the case of APC v Lere (2020) 1 NWLR Part 1705 Page 284 at 285, submitting that the judgment of the lower Court was perverse, urging the Court to invoke its powers under Section 15 of the Court of Appeal Act to hear and determine the suit, as all the processes filed before the lower Court and needed for the just determination of the suit, are before this Court.
He re-stated that all the processes filed by the Respondent before the lower Court were all filed out of time, with no default fees paid before or after. He also alleged that the counter-affidavit to the Originating Summons was deposed to by a legal practitioner without affixing his stamp thereon. The only competent processes before the Court are thus those filed by the Appellant before the lower Court.
The Respondent’s Counsel did not respond to issue No. 2 formulated by the Appellants but argued his own 2nd issue, which is, whether the judgment of the trial Court is liable to be set aside. In his arguments, the learned Silk argued that the processes which the Appellants wanted the lower Court to have determined before the preliminary objection is an application for mandatory injunction. Giving the meaning and uses of a mandatory injunction, learned Counsel submitted that the application for mandatory injunction was intrinsic to the substantive suit. He also went into a discourse on committal proceedings and its difference with the challenge to the jurisdiction of the Court.
I, however find these submissions irrelevant to the issue in contention and shall accordingly disregard the same.
In responding to the issue formulated by the Appellants’ Counsel, Respondent’s Counsel submitted that Courts have no jurisdiction to dabble into the domestic affairs of political parties, as in our jurisprudence, a political party is supreme over its own affairs. Members of parties, he submitted, have been urged to understand and appreciate the finality of a party’s decision over its domestic or internal affairs. He cited the cases of PDP v. Oguebego  LPELR-24519 (CA); Dalhatu V. Turaki  15 NWLR (PART 843) P. 310; Agi v. PDP & ORS  NWLR (PART 1595) 386, Onuoha V. Okafor & ORS  14 NSCC P. 494.
He conceded that, notwithstanding the foregoing, the Court will only interfere in the internal affairs where the Party has violated its own rules and as held by the Supreme Court, the Courts will never allow a Political Party to act arbitrarily or as it likes and are mandated to obey their own constitution, as this would ensure orderliness and would be good for politics and the Country. He cited APC & ANOR v. LERE & ANOR  1 NWLR (PART 1705) 298; and UKACHUKWU v. PEOPLE’S DEMOCRATIC PARTY  ALL FWLR (PART 728) 887. So long as political parties adhere to the provisions of the Constitution in the choice of candidates for political office, the Courts will not interfere in their internal affairs.
He argued further that the Appellants are however neither aspirants at the primaries nor are they complaining about the contravention of the Electoral Act and thus do not fall within the confines of Section 87 (9) of the Electoral Act and Section 285 (14) (a) of the 1999 Constitution. It is thus only a complaint against the management and control of the Respondent and thus the domestic or internal affairs of a political party, which the Courts cannot interfere with party. Since the lower Court was not vested with jurisdiction to hear and determine the matter, this Court cannot exercise its power under Section 15 of the Court of Appeal Act. He cited Gbolarumi V. PDP  LPELR-48282 (CA).
To recap, the issue for determination is:
Whether given the totality of facts stated in the originating summons, affidavit in support, ancillary processes and exhibits before the lower Court, the judgment of the Court is perverse and liable to be set aside?
The lower Court, in its judgment, set out the Originating Summons filed by the Appellants before it, seeking a determination of the following questions:
1. “Whether the Appellants are members of the People’s Democratic Party (PDP) and having indicated interest vide a letter dated 27/02/2020 to buy, purchase or pay for Nomination Forms to enable them participate in the Ward and Local Government Congress in Imo state are entitled to buy, purchase, pay and be given P.D.P. Nomination Forms to enable them participate in the Ward and Local Government Congress in Imo State?
2. If the answer to the above is yes, whether the hoarding and refusal by the Respondent to sell or give P.D.P. Nomination Forms to the Applicants to enable them vie for the position in the Ward and Local Government Area congress in Imo State amounts to deliberate exclusion or disenfranchisement of the Applicants from exercising their right to vie/contest for executive positions in the Congress and to be voted for as members of the P.D.P. contrary to Section 2, Section 6 (1), Section 8 (1) Section 11 (1) and Section 49 (2) of the People’s Democratic Party (P.D.P.) Constitution (as amended 2017)?
3. Whether by the combined reading and effect of Section 2, Section 6 (1), Section 8 (1) Section 11 (1) and Section 49 (2) of the People’s Democratic Party (P.D.P) Constitution (as amended 2017) any Ward and Local Government Area or other Congress conducted in Imo State without the inclusion of the Applicants is unconstitutional and invalid?”
The Appellants’ sought the following reliefs arising from a determination in their favour of the above questions:
i. “A Declaration that the Applicants as registered members of the People’s Democratic Party (P.D.P.) having indicated interest vide the letter dated 27/02/2020 to buy, purchase or pay for Nomination Forms to enable them participate in the ward and Local Government Congress in Imo State are entitled to buy, purchase, pay and be given P.D.P. Nomination Forms to enable them participate in the Ward and Local Government Area Congress in Imo State.
ii. A Declaration that the hording and refusal by the Respondent to sell or give P.D.P. Nomination Forms to the Applicants to enable them vie for positions in the Ward and Local Government Congress in Imo State amounts to deliberate exclusion and disenfranchisement of the Applicants from exercising their rights to vote and be voted for as members of the P.D.P. contrary the Section 2, Section 6 (1), Section 8 (1) Section 11 (1) and Section 49 (2) of the People’s Democratic Party (P.D.P) Constitution (as amended 2017).
iii. A Declaration that any Ward and Local Government Congress and/or other Congress in Imo State conducted without the inclusion of the Applicants is invalid and unconstitutional.
iv. A Declaration that any Ward, Local Government Area and/or other Congress in Imo State conducted by the Respondent during the pendency of this suit are null, void and of no effect whatsoever.
v. An Order of perpetual injunction restraining the Respondent from conducting any Ward and Local Government Area Congress or other Congress in Imo State to the exclusion of the Applicants.
vi. An Order nullifying any Ward, Local Government Area and/or other Congress conducted by the Respondent during the pendency of this suit.
vii. An Order directing the Respondent to forthwith sell and/or make available for purchase by Applicants, Congress Nomination Forms for any Ward, Local Government Area and/or other Congress to be conducted by Respondent in Imo State.”
The lower Court, in its “judgment”, as aforesaid, referred to the various processes filed by the parties and also referred to a motion for restorative injunction filed by the Appellants. Holding that “the Supreme Court in a number of cases has held that a political party is a club that has its rules and regulations and constitution which the party members must adhere to” and that the Court will only interfere where those rules are violated, it set out the rules and regulations of the Respondent alleged to be violated, and held that even though the Appellants cited some provisions of their party’s constitution, they had been unable to prove to the Court the Section violated, which, it held, is contrary to the provisions of the Electoral Act, thus, divesting the Court of jurisdiction.
It consequently, as aforesaid, upheld the Preliminary Objection and struck out the suit. It also struck out the motion for restorative injunction.
Exhibited to the Appellants’ affidavit in support of the Originating Summons is the Time Table and the Schedule for the activities for the year 2020 party congress. Also exhibited is the letter of complaint, written to the National Chairman of the Respondent notifying him of the hoarding and refusal of sale of the congress forms to registered members. Further exhibited is the “Restorative or Mandatory Injunction” filed by the Appellants to return the parties to status quo ante which existed as at 13/3/2020 when the suit was commenced and seeking to set aside all Wards and Local Government Congresses conducted by the Party on 14/3/2020 and the election of all parties thereat, for having proceeded to hold and conduct Wards and LGA Congresses in spite of service on them of the Originating Summons and the Motion for Interlocutory Injunction. Also exhibited are membership cards of the Appellants.
The Appellants, in their Counsel’s Written Address before the lower Court, referred to Sections 2, 6(1) 8(1) 11(1) and 49(2) of the Constitution of the Respondent. These Sections are set out below:
“2. Subject to the provisions of the Constitution of the Federal Republic of Nigeria and any other law in force, this Constitution shall be supreme and its provisions shall have binding force on all members and organs of the party.
6 (1) The party shall be a democratic organization and shall pursue its objectives without regards to race, creed and ethnic affiliation.
8 (1) Membership of the party shall be open to all Nigerians who are not below the age of 18 years, and who undertake to abide by the Constitution of the Party.
11(1) The Party shall create opportunities for members to serve, and shall adopt measures that encourage volunteer services.
49(2) Every registered member of the Party who has satisfied the requirement for nomination and election under this Constitution, the Constitution of the Federal Republic of Nigeria or any other law, rules or regulations in force shall be eligible to contest for any of the offices of the Party.”
The Respondent’s counter-affidavit contained at pages 287-290 of the Record, while admitting that the Appellants were registered members of the Respondent, denied that the Appellants ever indicated their desire to contest for any elections. It alleged that a public notice, attached thereto, informed desiring members who wished to contest elective positions that nomination forms had commenced. It was also deposed that extensions were given on two occasions to allow for purchase of nomination forms. The deadline, it further deposed, was also advertised in a Newspaper. It denied any knowledge of complaints from the Appellants, insisting that the sale of nomination forms was transparent and accessible to every registered member.
I agree with the learned Counsel to the Respondent that the general policy of the Courts is non-interference in the affairs of political parties. The Courts have however held that, where the party has violated its own rules or Constitution, or acts arbitrarily, the Court will unhesitatingly intervene. See the cases of Agi v PDP (2017) NWLR Part 1595 Page 386; Gana v SDP (2019) LPELR-47153 (SC,); APC v Lere (2020) 1 NWLR Part 1705 Page 298.
The complaint of the Appellants that, being registered members of the party, they were precluded from purchasing nomination forms to enable them participate in Wards and Local Government Area Congress in Imo State, if found to be true, was a violation by the Respondent of Section 49(2) of the Constitution of the Respondent, I hold.
The lower Court was thus in error, I hold, to have divested itself of jurisdiction on the ground that the Appellants were unable to show that the acts of the Respondent alleged, were in violation of any of the Sections of the Respondent’s Constitution.
The judgment was indeed perverse, having not drawn from the facts on record, thereby resulting in a wrong application of the law to the facts of the case, which lapse resulted in a miscarriage of justice. See Mamonu v Dikat (2019) 7 NWLR Part 1672 Page 495 at 526-527 per Peter-Odili JSC; Abegunde v. Ondo State House of Assembly (2015) 8 NWLR Part 1461 Page 314 at 343-344 Para H-D, 346 G-H per M.D. Muhammad, JSC.
I accordingly resolve the 1st issue for determination in favour of the Appellants.
The 2nd issue for determination, is:
“Whether this Court should assume jurisdiction to hear and determine the case on its merits?
The Appellants’ Counsel has requested that this Court proceed to determine the Originating Summons, as all the processes required for deliberation of the same are before the Court. While this is an attractive proposition, the fact remains that the divergent affidavits of the parties make it is impossible to resolve the questions posed in the Summons definitively.
The law is well settled that where the defence puts up a weighty and hostile defence, the action should not be heard on the Originating Summons. See Pali v Abdu (2019) 5 NWLR Part 1665 Page 320 at 331 Para E per Eko, JSC.
Originating Summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will or other document or some question of pure law, where there is unlikely to be any substantial dispute on issues of fact between the parties. See Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR Part 799 Page 605 at 613 Para E-F, per Iguh, JSC; Olomoda v Mustapha (2019) 6 NWLR Part 1667 Page 36 at 50 Para G-H per Aka’ahs, JSC.
The “hostile” defence put up by the Respondent persuades against hearing of the suit by way of Originating Summons.
The Appellants’ Counsel has however requested that no store be placed by the Respondent’s processes, as no default fees were paid as directed by the Courts.
It is indeed true that the lower Court, following its grant of leave to the Respondent to file its processes out of time, ordered that penalty for late filing be paid within three days thereof. However, failure of the Respondent to comply with payment of default fees and the absence of the lawyer’s seal on the counter-affidavit were issues that should have been brought to the attention of the lower Court at the hearing of the Originating Summons, I hold. It is too late to bring up these procedural matters before this Court.
I thus resolve the 2nd issue for determination against the Appellants.
Having resolved the 1st issue for determination in favour of the Appellants, this appeal succeeds in part, I hold, and I set aside the judgment of the lower Court. This case is remitted to the lower Court for accelerated hearing on the merits, before another Judge of the High Court of Imo State.
The Respondent shall pay costs of N100,000.00 to the Appellants.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA. I am in complete agreement with his lordship’s reasoning in respect of the preliminary objection to the appeal and the manner of the resolution of the same. Furthermore, I agree with the manner in which his lordship has resolved the appeal on the merit.
I therefore see no meaningful contribution to make to the said leading judgment. I abide by decision in the leading judgment and the consequential orders made therein, including the order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I agree.
Clifford Nnanta Chuku For Appellant(s)
C. A. Nnawuchi For Respondent(s)