PRINCE NNANNA UKAEGBU v. MR. KINGSLEY CHUKWUDI MADUAKO & ORS
(2018)LCN/10740(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of February, 2018
CA/OW/154/2017
RATIO
JURISDICTION: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW TO HAVE RIGHTLY RESCINDED JURISDICTION
Whether the learned trial Judge was right in law to have rightly rescinded or declined jurisdiction to hear the substantive suit before him because the membership of the 2nd Respondent in the 3rd Respondent or otherwise formed part or whole of the 1st respondent’s first claim in the aforesaid suit without fully adverting and considering the full purport of Section 87 (9) and (10) of the Electoral Act 2010 as amended and decided authorities thereto in relation to the said claim. In resolving this issue, the pertinent question that needs to be answered is what is the meaning and ambit of Section 87 (9) and (10) the Electoral Act, 2010 (as amended)? The entire Section 87 of the Electoral Act (Amendment) Act (No. 2) of 2011 provides for the process of nomination of candidates by parties. Section 87 (9) of the Act provides thus: “Notwithstanding the provision 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 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 a State or F. C. T. for redress.” The provision of Section 87 (9) of the Electoral Act was examined by the Supreme Court in SENATOR UMARU DAHIRU & ANOR. v. A.P.C. & ORS (2016) LPELR-42089 (S.C) where OLABODE RHODES-VIVOUR J.S.C. had this to say, “The Appellants and the 3rd Respondent members of the A.P.C. participated in the primaries from which the 3rd Respondent emerged as the APC’s candidate for the 11/4/2015 gubernatorial election for Governor of Sokoto State”. Now, an intra-party dispute is a dispute between members of the party interse or between a member or members on the one hand or and the party on the other hand. The Appellants’ originating summons was filed because they were not satisfied with the conduct of the APC primaries held on 4/12/2014 wherein the 3rd Respondent emerged as the APC’S gubernatorial candidate. The Appellants’ suit is an intra-party dispute, a pre-election matter. Do the Appellants’ have a right to complain? Section 87 (9) of the Electoral Act 2010 (with 2011 amendments) states that: “Notwithstanding the provision of this Act or Rules of a political party, an aspirant who complains that any of the provision of this Act and the guidelines of a political party 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 a State or F. C. T. for redress.” The complaint of the Appellants is that the primaries of the 1st respondent held on 4/12/2014 was not done in compliance with the provisions of Section 87 of the Electoral Act 2010 and the A.P.C. guidelines. The Appellants not only have a complaint but a good cause of action, the Appellants were thus correct to bring their action in the Federal High Court as provided by Section 87 (9) of the Electoral Act, 2010 (with 2011 amendment) see also AL-HASSAN v. ISHAKU (2016) 10 NWLR (PT. 1520) 230, PDP v. SYLVA (2010) 12 NWLR (PT. 1316) 85, DANIEL v. INEC (2015) NWLR (PT. 1416) 113, ARDO v. NYAKO (2014) 10 NWLR (PT 1416) 591. It needs be stated however that where a Claimant anchors his complaint on membership or non-membership of a political party, the Court would lack jurisdiction to adjudicate over the matter. In JOE ODEY AGI SAN v. PDP (2016) LPELR – 42578 (SC) this point was well considered by the apex Court. Ogunbiyi JSC had this to say: “The Appellant related copiously also to the case of UWAZURIKE v. NWACHUKWU (2012) 3 NWLR (PT 1342) 503 where the Court have had cause to interfere with the affairs of political parties. That case is distinguishable remarkably from the case under review and now before us. This I say because, in resolving the appeal in that case this Court considered the provision of Section 87 (9) of the Electoral Act against the background facts of the appeal which touched squarely on the wrongful substitution of a candidate in a primary election. To the contrary, this case was not founded, on membership of a political party. I seek to highlight for purpose of emphasis that the underlying principle behind the enactment of Section 87 (9) of the Electoral Act is to curtail any arbitrary exercise of power by a political party in the selection of their candidates for election hence the imposition to ensure compliance with the provisions of the Electoral Act and the guidelines. However, the supervisory function vested in the Court does not extend beyond borders so as to interfere into matters that are within the exclusive preserve of the political parties such as the issue of membership nomination now before us.” I shall view this issue in the light of the above. The case of the Plaintiff at the lower Court was initiated through originating summons procedure. The summons was supported by affidavit setting out facts relied upon as required by the Federal High Court Rules. It is a 14 paragraph affidavit. Pertinent among the paragraphs of the affidavit are paragraphs 2-6, 10-12 which read thus: 2 “That I am an active and registered member of the 2nd Defendant as well as its candidate for the Abia State House of Assembly, Aba Central Constituency election coming up on 11/4/2015. 3. That in the current political dispensation, I obtained, filled and timerously submitted to the 4th Defendant. Prince Nnanna Ukaegbu, expression of Interest and Nomination Forms as an aspirant for the Abia State House of Assembly, Aba Central Constituency primary election holding on 11/4/2015. 4. That the 1st Defendant is a member of the Peoples Democratic Party. 5. That in the build-up to the 2015 general election the 1st Defendant was an aspirant in the House of Assembly primary election of his party PDP, for the Aba Central Constituency where he purchased their expression of interest and nomination forms, filled returned to the Peoples Democratic Party and participated in their primaries. 6. That the 1st Defendant was and has never been a member of the 2nd Defendant. 10. That the 1st Defendant did not obtain any form at all in accordance with the Constitution and guidelines for the primary elections of the 2nd defendant (attached as Exhibit “A” is my copy of the said guidelines) 11. That to the shock of all party members and me the 3rd Defendant published the name of the 1st Defendant as the candidate of the party. 12. That the shock arose from the fact that the 1st Defendant is a member of the Peoples Democratic Party, did not obtain any form as started in the guideline of the party and his name was not submitted to the 3rd defendant at all as a candidate. In reaction, the 1st Defendant filed a Notice of Preliminary objection supported by 26 paragraph affidavit. Paragraphs 3, 4, 5, 10, 11, 12-17 of the said affidavit are very relevant for the determination of this appeal. They read as follows: 3. “That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he is an active and registered member of the 2nd Defendant as well as its candidate for the Abia State House of Assembly, Aba Central State Constituency. 4. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was an aspirant for the primary election to the State House of Assembly conducted by the National Executive Committee of the 2nd Defendant on the 9/12/2014. 5. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that before contesting the said primary election of my party, he fulfilled all the conditions set out in the Constitution of the Federal Republic of Nigeria 1999, the Constitution of his party (APGA) and the provisions of any other relevant law and guidelines. 10. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he is a registered financial member of the 2nd Defendant. 11. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was duly nominated by credible persons within the Aba Central Constituency to contest for the elective position. 12. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he paid a non-refundable fee of N200,000 (Two Hundred Thousand Naira) to the 2nd Defendant before obtaining his “Expression of Interest Form” from the State Secretariat of the 2nd Defendant in Umuahia. 13. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he also paid a non-refundable fee of N1,000,000 (One Million Naira) to the 2nd Defendant before obtaining his “Nomination Form” from the State Secretariat of the 2nd Defendant in Umuahia. 14. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he also complied with the provisions of part V paragraph 29 (d), (c) and (f) of the 2nd Defendant’s Electoral Guidelines for Primary Elections 2014. 15. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that all the information which the 1st defendant supplied to the 2nd and 3rd defendants in his nomination form are true and correct. 16. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he fulfilled all the conditions and requirement contained in “Exhibit A” which is attached to the Plaintiff’s case. 17. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was nominated and or sponsored by the 2nd Defendant (APGA) as her candidate for Aba Central State Constituency to contest the 2015 General Election into the Abia State House of Assembly having won the primary of the party conducted on the 9/12/2014 which congress and or primaries was supervised by a congress committee appointed by the National Executive Committee of the 2nd Defendant (APGA) led by Dr. Paul Odenigbo as the Chairman and Barrister Echezona Etiaba as the Secretary.” It is clear from the affidavit that the fulcrum on which the claim number one of the Plaintiff rested at the lower Court was whether or not the 1st Defendant was a member of the 2nd defendant. It was the pillar on which claim number one rested. The lower Court could not have determined the claim number one without determining the membership of the 1st Defendant. It is trite law that Section 87(9) of the Electoral Act does not vest such jurisdiction in the lower Court See AGI v PDP (supra). The Learned trial Judge in my respectful view rightly held that the matter was not justiciable. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
PRINCE NNANNA UKAEGBU – Appellant(s)
AND
MR. KINGSLEY CHUKWUDI MADUAKO & ORS. – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant on 19/01/2017 against the decision of the Federal High Court Umuahia Judicial Division delivered on 15/12/2016.
The Plaintiff at the lower Court had instituted an action vide originating summons procedure claiming as follows:
1) ?A Declaration that the 1st Defendant is not a candidate in the election into the Abia State House of Assembly, Aba Central Constituency holding on the 11/4/2015 as the 1st Defendant was/is not a member of the 2nd Defendant and accordingly did not participate in the primary election held on 9/12/2014 for the election of such candidate, he being a member of the Peoples Democratic Party wherein he participated in their primaries and his name was not submitted to the 3rd Defendant by the 2nd Defendant.
2) A Declaration that the Plaintiff is the lawful candidate of the 2nd defendant in the election into the Abia State House of Assembly, Abia Central Constituency holding on the 11/4/2015 which said election is being conducted by the 3rd Defendant in that the Plaintiff emerged as
1
the aspirant with the highest votes in the primaries conducted by the 2nd Defendant.
3) A PERPETUAL INJUNCTION restraining the 1st Defendant from continuing to hold out himself as a candidate in the said election; the 2nd Defendant from continuing to hold out the 1st Defendant as its candidate in the said election and the 3rd Defendant from continuing to sustain the 1st Defendant as a candidate in the said election.
4) AN ORDER directing the 3rd Defendant to enter the name of the Plaintiff as the candidate of the 2nd Defendant in the election into the Abia State House of Assembly, Aba Central Constituency scheduled to hold on 11/4/2015 and thereby deeming all votes cast for the 2nd Defendant in the said election as votes cast and due to the Plaintiff.?
He also sought for the determination of the following questions:
1) Whether the 3rd Defendant can validly sustain the name of the 1st Defendant as a candidate of the 2nd Defendant into the Abia State House of Assembly, Aba Central Constituency Election holding on the 11/4/2015, as against the Plaintiff, when the 1st Defendant did not participate in the primary election of the
2
2nd Defendant held on 9/12/2014 and did not emerge in a primaries conducted in accordance with the Electoral Act, Constitution and Guideline of the 2nd Defendant?
2) Whether the Plaintiff ought not to be the lawful candidate of the 2nd Defendant in the said election having emerged as the winner of the lawful primaries of the 2nd Defendant conducted on 9/12/2014 by the Defendant for the election of a candidate and his name having been submitted to the 3rd Defendant as such candidate?
3) If the answer to questions 1 and 2 are in the negative and positive respectively whether the Court can grant an order of injunction restraining:
a) The 1st Defendant from further holding out himself as a candidate of the 2nd Defendant in the said election.
b) The 3rd Defendant from maintaining or having the name of the 1st Defendant as a candidate of the 2nd Defendant in the said election?
4) Whether the Court can direct the 3rd Defendant to enter the name of the Plaintiff as the lawful candidate of the 2nd Defendant in the said election and accredit votes due him.”
The learned trial Judge after hearing the parties held thus:
3
?This is therefore a pre-election matter and the starting point is for me to determine the membership of the 1st Defendant with the 2nd Defendant. If my finding is in the affirmative, then I will go to determine if he contested the 2nd Defendant?s primaries and won or lost. No matter how one approaches it, the question whether the 1st Defendant is a member of the 2nd Defendant will ring bell first.
The S.C has repeatedly held that the membership of a political party is the prerogative of the political party to determine and not justiciable. See ONUOHA v. OKAFOR (1983) 2 SCNLR 244; PDP v. SYLVA (2012) ALL FWLR (PT 637) 606; ANYANWU v. OGUNEWE (2014) ALL FWLR (PT 738) 1012.
The argument of the learned counsel for the Plaintiff that this claim falls under Section 87 (9) & (10) of the Electoral Act 2010 is misconceived. The Plaintiff in this suit is not challenging the conduct of the 2nd Defendant?s primaries. He is challenging the submission of the name of the 1st Defendant to the 3rd Defendant on grounds that the 1st defendant is not a member of the 2nd Defendant and did not participate in the primaries of the 2nd
4
Defendant and which matter is within the domestic affairs of the 2nd Defendant and not justiciable.
The case of ORKER JEV v. IYORTYOM (supra) cited by the learned Plaintiff?s counsel is not applicable in the instant case.
This issue is resolved in favour of the Defendants.
ISSUE 4
I had said that the principal relief 1. It is based on the finding of the Court on this relief that the Court will pronounce on all the other reliefs. Relief 1 is therefore the main or principal relief and reliefs 2-4 are collateral to, independent on and ancillary to relief 1.
The law is trite that where a Court do not have jurisdiction over the principal claim, it cannot adjudicate over the ancillary claims. See TUKUR v. COVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 177) 517.
In this suit the principal claim is not against the Federal Government or any of its Agency. There is no action of the 3rd defendant, the only agency of the Federal Government sued that is being complained about to bring this action within the purview of Section 251 of the 1999 Constitution and the jurisdiction of the Federal High Court. Since this Court
5
lacks the jurisdiction to entertain the principal relief, it has no jurisdiction to entertain the ancillary reliefs and I so hold.
I place reliance on PDP v. SYLVA (supra); KAKIH v. PDP (2014) 15 NWLR (PT 1430) 374.
Having held that this matter is not justiciable and within the jurisdiction of this Court. I hereby rescind jurisdiction to look into the matter on the merits.
Accordingly, this suit is hereby struck out.”
Miffed by the above decision, the Appellant filed Notice of Appeal containing four grounds which read as follows:
GROUND ONE
The learned trial judge erred in law when she failed to consider and or make any ruling in relations to the further counter-affidavit and written address filed by the Appellant.
PARTICULARS OF ERROR
1. The Appellant filed a further counter-affidavit and written address dated the 12/5/2016 and filed on the 2/6/2016.
2. The said motion was moved on the 6/12/2016.
3. The honourable Court did not consider the motion despite the fact that it had been moved
4. The judgment of the Court did not show that the learned trial judge considered this motion at
6
all.
5. The learned trial judge denied the Appellant his constitutional right of fair hearing and this has occasioned a travesty of justice.
GROUND TWO
The learned trial judge erred in law when she failed to determine who actually won the primary election of the 3rd Respondent.
PARTICULARS OF ERROR
1. From the affidavit of all the parties, two primary election of the 3rd Respondent was in issue.
2. The 2nd Respondent is a member of PDP and not a member of APGA.
3. The 2nd Respondent cannot participate in a primary election of a party which he is not a member.
4. The evidence before the Court showed that the 1st Respondent won the primary election.
5. The learned trial Judge did not evaluate the evidence before the Court at all.
6. The Court had the jurisdiction to determine who won the primary election based on Supreme Court authorities on this issue.
7. The learned trial Judge failed to determine the above issue and this has occasioned a substantive miscarriage of justice.
GROUND THREE
The Appellant did not receive a fair hearing.
PARTICULARS OF ERROR
1. The learned trial Judge failed
7
to resolve issues raised by the Appellant.
2. That learned trial Judge did not evaluate the Appellant?s case which it rejected.
3. This complete travesty of justice.
GROUND FOUR
The judgment of the Honourable Court is against the weight of evidence.
The record of appeal in this appeal was deemed transmitted on 30/5/17 party?s subsequently filed and exchanged briefs of argument.
SUBMISSION OF LEARNED COUNSEL IN THEIR RESPECTIVE BRIEFS
APPELLANT?S BRIEF
The Appellant?s brief of argument was filed on the 23/6/2017. The brief was settled by his counsel Nkem Anthony Nnaba.
The learned counsel formulated 2 issues for determination.
THE ISSUES ARE:-
1. Whether the learned trial judge was right in law to have rightly declined jurisdiction to hear the substantive suit before him because the membership of the 2nd Respondent in the 3rd Respondent or otherwise formed part or whole of the 1st Respondent?s first claim in the aforesaid suit without fully adverting and considering the full purport of Section 87 (9) & (10) of the Electoral Act 2010 as amended and
8
decided authorities thereto in relation to the said claim.
2. Whether by declining jurisdiction without considering the suit on the merit, including determining the Appellant?s further affidavit and the written address therein, the Court below had not denied the Appellant the right to fair hearing and justice.
ISSUE ONE
Learned Appellant?s counsel submitted that the Judge in the Court below misdirected himself and thus erred in law to dismiss the suit before the Court or rescind jurisdiction merely on the ground that the 1st Respondent suit raised inter-alia, issue of the membership or otherwise of the 2nd Respondent in the 3rd Respondent without fully considering the con of the claim in relation to Section 87 (9) & (10) of the Electoral Act 2010 (as amended) from which the jurisdiction of the lower Court arose in pre-election matters. He relied on the case of ORKER JEV & ANOR v. S. D. IYORTYOM & ORS (2015) 15 NWLR (PT. 1483) 484 at 496, Ratio 7. He further supported his submission by referring to FATAI KEHINDE OWOLABI & ANOR v. OMOTAYO ARAMIDE ODUNTAN & 3 ORS (2016) FWLR (PT. 854) 2009 at 2014-15.
9
Learned Appellant?s counsel conceded to the Court below that the Court had no jurisdiction to entertain matter dealing with membership of a political party simpliciter but disagreed that that position of the law applied to such issues of membership of a political party or the nomination and submission of the name of a candidate where it relates to the provisions of Section 87 (9) & (10) of the Electoral Act 2010 (as amended). He relied on the Supreme Court cases of JENKINS PUVIE GWEDE v. INEC & ORS (2015) ALL FWLR (PT 767) 615 AND AISHA JUMMAI ALHASSAN & ANOR v. DARIUS DICKSON ISHAKU & ORS (2017) ALL FWLR (PT 866) 209 at ratio 9.
He urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO
On issue two, learned Appellant?s counsel submitted that the Court below misdirected itself in the determination of what in the circumstance of the suit and claims before it, constitute principal or ancillary claims.
Learned counsel to the Appellant further submitted that the two claims presented at the lower Court are inter pares and independent of each other though arguably interrelated and it was therefore
10
wrong in law for the Court below to hold one as subordinate to the other or not to be entertained on the alleged failure of the first, jurisdiction wise and which determination had foisted on the Appellant a helpless situation where his own side of the story as a party thereat cannot be heard. He relied on the cases of ALSHTOM v. SARAUS (2005) 21 NSCQR 185 at 188 Ration 586, MAGNA MARITIME LTD v. OTEJU (2005) 22 NSCQR 295 at 301 ratio 5 & 6.
He urged this Court to resolve issue two in favour of the Appellant.
He concluded by urging this Court to allow this appeal and grant the reliefs sought.
1ST RESPONDENT?S BRIEF
The 1st Respondent?s Brief of argument was filed on 2/11/2017. The brief was settled by his counsel O. E. UKPAI.
The learned counsel formulated two issues for determination:
ISSUE ONE
Whether the learned trial Judge was right in law to have declined jurisdiction to hear the substantive suit before him without taking full cognizance of the provisions of Section 87 (9) & (10) of the Electoral Act 2010 (as amended) and decided authorities in relation thereto.
ISSUE TWO
Whether a
11
non-contestant at a primary election could have his name validly forwarded to INEC, the 4th Respondent in this appeal.
ISSUE ONE
On issue one, learned counsel to the 1st Respondent aligned himself with the arguments of the Appellant in this appeal. He submitted that the submission of the name of the 2nd Respondent instead of that of the 1st Respondent by the 3rd Respondent to the 4th Respondent is a clear violation of the provisions of Section 87 (9) of the Electoral act 2010 (as amended) and could not be regarded as an internal affair of 3rd Respondent but falls within the jurisdiction of the Court below to entertain and adjudicate upon. He relied on the case of GWEDE v. INEC & ORS (SUPRA), AISHA ALHASSAN & ANOR v. DARIUS ISHAKU & ORS (SUPRA), UGWU v. P.D.P (2015) 61 NSCQR (PT 3) 1519 at 1555.
ISSUE TWO
On issue two, learned 1st Respondent?s counsel submitted that the forwarding of the 2nd Respondent?s name to the 4th respondent by the 3rd respondent in an imaginary primary is in law, invalid. While contending that by virtue of Section 87(9) of the Electoral Act 2010 (as amended) an aspirant (and in the instant
12
case, the 1st Respondent) who complains that any of the provisions of the Act and guidelines of a political party has not been complied with in the High Court of a State, the Federal High Court or the Federal Capital Territory for redress, learned counsel conceded the facts that in determining the validity or otherwise of a primary of a political party it is the provision of the applicable Constitution and electoral guidelines of the party that should be considered. He relied on the case of EMENIKE v. P.D.P (2010) 5 NWLR (PT 1315) 555.
Learned counsel further submitted that the contention of the 2nd Respondent that the 1st respondent has no locus standi to ventilate his action at the Court is one unfounded and were made in ignorance of the law and should be discountenanced. He relied on the case of ORKER JEV v. IYORTYOM (2014) 58 NSCQR (PT 2) 1113 at 1181.
He urged this Court to resolve issue two in favour of the 1st Respondent and grant the appeal of the Appellant.
He concluded by asking this Court to allow this appeal and the reliefs sought therein.
2ND RESPONDENT?S BRIEF
The 2nd Respondent?s Brief of Argument was
13
filed on the 6/10/2017. The brief was settled by his counsel Isaac Anya, Esq.
The learned counsel formulated two issues for determination, viz,
1. Whether the Court below had jurisdiction to entertain the action filed by the 1st Respondent.
2. Whether the Appellant and the 1st Respondent have the locus standi or can even challenge the conduct of a primary election which they did not participate at all.
ISSUE ONE
Learned 2nd Respondent?s counsel argued that relief one of the 1st Respondent?s suit at the trial Court revolves around who a member of the All Progressive Grand Alliance is, which is at the prerogative of the political party. He relied on the cases of APGA v. ANYANWU (2014) 7 NWLR (PT 1401) P. 541 and UFOMBA v. INEC & ORS (2017) LPELR-42079 (SC).
Learned counsel contended that the reliefs sought and the basis upon which they are sought have nothing to do with Section 87 (9) of the Electoral Act, 2010 (as amended) because they are entirely non-justiciable and it is manifestly obvious therefore that the Federal High Court lacks the jurisdiction to entertain the suit. He relied on the case of TUKUR v.
14
GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) P. 517.
Learned 2nd Respondent?s counsel submitted that the primary election which the 1st Respondent participated in was illegal, unconstitutional, ultra vires, null and void it having been purportedly conducted and supervised by the Zonal Chairman of the 3rd respondent as deposed to by the 1st Respondent in paragraph 8 of his affidavit attached to his originating summons or process. He urged the Court to resolve issue one in favour of the 2nd Respondent.
ISSUE TWO
On issue two, learned 2nd Respondent?s counsel submitted that the 1st Respondent who initiated the instant case at the trial Court lacks the locus standi of instituting his claim in the first place. Learned counsel contended that unlike the 2nd Respondent who participated in the primaries conducted by the National Executive Committee of All Progressive Grand Alliance and whose name was sent to Independent National Electoral Commission (INEC) by the said National Executive Committee, the 1st respondent is merely a product of a primary election conducted by the Zonal Chairman of APGA, Abia State.
?
Learned counsel
15
further contended that the 1st respondent and even the Appellant cannot by any stretch of imagination challenge the result of a primary election which they did not take part. He relied on the cases of YAR?ADUA v. YANDOMA (2015) ALL FWLR (PT 770) PG 1264; EMEKA v. OKADIGBO (2012) ALL FWLR (PT 651) 1426, (2012) 18 NWLR (PT 1331) 55; EMENIKE v. P.D.P. (2012) ALL FWLR (PT 640) 1261; P.D.P. v. SYLVA (2012) ALL FWLR (PT 637) 606; LADO v. C.P.C. (2011) 18 NWLR (PT 1278) 18.
Conclusively, learned counsel urged this Court to endorse the decision of the lower Court and dismiss this appeal.
The Appellant?s Reply brief was filed on the 2/11/2017. The reply brief was settled by his counsel NKEM ANTHONY NNABA. The learned Appellant?s counsel submitted in response to issue number one as raised by the 2nd Respondent that the argument of counsel in paragraphs 3.5-3.13 of his brief for the 2nd Respondent do not address the subject matter of this appeal nor issues raised in the Appellant?s brief, neither does it relate to the brief judgment of the Court below.
He further submitted in respect of the 2nd Respondent?s issue number
16
two as formulated and argued in paragraphs 40-4.26 of his brief, that the aforesaid issue and the submission thereon be ignored and discountenanced as they relate to issues which are neither distilled from any of our grounds of appeal nor from the decision of the Court below and are thus extraneous to this appeal. He relied on the case of ONOWHOSA v. ODIUZOU (1999) 1 NWLR (PT 586) 173 at 183.
He finally submitted that the jurisdiction of the Court below to hear pre-election matters is anchored on Section 87 (9) & (10) of the Electoral Act, 2010 (as amended) and that where, by the said Act and its provision, the membership of a political party is made a condition by the provision of a political party?s guidelines for the purpose of selection and nomination of a candidate to represent it in any election, any complaint by any person who alleged to have participated in any such process that any other person so selected did not meet that condition is comfortably justiciable within the provisions of the said Section 87 (9) (10) supra and must be distinguished from any question of membership of a political party arising from circumstances outside the
17
contemplation of the aforesaid section.
Learned counsel to the Appellant urged this Court to allow this appeal and grant the reliefs sought.
I have deeply considered the arguments of learned counsel on all sides. I have also considered the issues postulated by learned counsel. I am of the respectful view that the two issues donated by Appellant?s counsel are apt and apposite for the just determination of this appeal. I therefore adopt them in this judgment.
ISSUE ONE
Whether the learned trial Judge was right in law to have rightly rescinded or declined jurisdiction to hear the substantive suit before him because the membership of the 2nd Respondent in the 3rd Respondent or otherwise formed part or whole of the 1st respondent?s first claim in the aforesaid suit without fully adverting and considering the full purport of Section 87 (9) and (10) of the Electoral Act 2010 as amended and decided authorities thereto in relation to the said claim.
In resolving this issue, the pertinent question that needs to be answered is what is the meaning and ambit of Section 87 (9) and (10) the Electoral Act, 2010 (as amended)?
18
The entire Section 87 of the Electoral Act (Amendment) Act (No. 2) of 2011 provides for the process of nomination of candidates by parties.
Section 87 (9) of the Act provides thus:
?Notwithstanding the provision 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 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 a State or F. C. T. for redress.”
The provision of Section 87 (9) of the Electoral Act was examined by the Supreme Court in SENATOR UMARU DAHIRU & ANOR. v. A.P.C. & ORS (2016) LPELR-42089 (S.C) where OLABODE RHODES-VIVOUR J.S.C. had this to say,
?The Appellants and the 3rd Respondent members of the A.P.C. participated in the primaries from which the 3rd Respondent emerged as the APC?s candidate for the 11/4/2015 gubernatorial election for Governor of Sokoto State?.
?Now, an intra-party dispute is a dispute between members of the party interse or between a member or members on the
19
one hand or and the party on the other hand. The Appellants? originating summons was filed because they were not satisfied with the conduct of the APC primaries held on 4/12/2014 wherein the 3rd Respondent emerged as the APC?S gubernatorial candidate. The Appellants? suit is an intra-party dispute, a pre-election matter. Do the Appellants? have a right to complain? Section 87 (9) of the Electoral Act 2010 (with 2011 amendments) states that:
?Notwithstanding the provision of this Act or Rules of a political party, an aspirant who complains that any of the provision of this Act and the guidelines of a political party 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 a State or F. C. T. for redress.”
The complaint of the Appellants is that the primaries of the 1st respondent held on 4/12/2014 was not done in compliance with the provisions of Section 87 of the Electoral Act 2010 and the A.P.C. guidelines. The Appellants not only have a complaint but a good cause of action, the Appellants were thus correct
20
to bring their action in the Federal High Court as provided by Section 87 (9) of the Electoral Act, 2010 (with 2011 amendment) see also AL-HASSAN v. ISHAKU (2016) 10 NWLR (PT. 1520) 230, PDP v. SYLVA (2010) 12 NWLR (PT. 1316) 85, DANIEL v. INEC (2015) NWLR (PT. 1416) 113, ARDO v. NYAKO (2014) 10 NWLR (PT 1416) 591.
It needs be stated however that where a Claimant anchors his complaint on membership or non-membership of a political party, the Court would lack jurisdiction to adjudicate over the matter.
In JOE ODEY AGI SAN v. PDP (2016) LPELR ? 42578 (SC) this point was well considered by the apex Court. Ogunbiyi JSC had this to say:
?The Appellant related copiously also to the case of UWAZURIKE v. NWACHUKWU (2012) 3 NWLR (PT 1342) 503 where the Court have had cause to interfere with the affairs of political parties. That case is distinguishable remarkably from the case under review and now before us. This I say because, in resolving the appeal in that case this Court considered the provision of Section 87 (9) of the Electoral Act against the background facts of the appeal which touched squarely on the wrongful substitution of a
21
candidate in a primary election. To the contrary, this case was not founded, on membership of a political party.
I seek to highlight for purpose of emphasis that the underlying principle behind the enactment of Section 87 (9) of the Electoral Act is to curtail any arbitrary exercise of power by a political party in the selection of their candidates for election hence the imposition to ensure compliance with the provisions of the Electoral Act and the guidelines. However, the supervisory function vested in the Court does not extend beyond borders so as to interfere into matters that are within the exclusive preserve of the political parties such as the issue of membership nomination now before us.”
I shall view this issue in the light of the above.
The case of the Plaintiff at the lower Court was initiated through originating summons procedure. The summons was supported by affidavit setting out facts relied upon as required by the Federal High Court Rules. It is a 14 paragraph affidavit. Pertinent among the paragraphs of the affidavit are paragraphs 2-6, 10-12 which read thus:
2 ?That I am an active and registered member of
22
the 2nd Defendant as well as its candidate for the Abia State House of Assembly, Aba Central Constituency election coming up on 11/4/2015.
3. That in the current political dispensation, I obtained, filled and timerously submitted to the 4th Defendant. Prince Nnanna Ukaegbu, expression of Interest and Nomination Forms as an aspirant for the Abia State House of Assembly, Aba Central Constituency primary election holding on 11/4/2015.
4. That the 1st Defendant is a member of the Peoples Democratic Party.
5. That in the build-up to the 2015 general election the 1st Defendant was an aspirant in the House of Assembly primary election of his party PDP, for the Aba Central Constituency where he purchased their expression of interest and nomination forms, filled returned to the Peoples Democratic Party and participated in their primaries.
6. That the 1st Defendant was and has never been a member of the 2nd Defendant.
10. That the 1st Defendant did not obtain any form at all in accordance with the Constitution and guidelines for the primary elections of the 2nd defendant (attached as Exhibit ?A? is my copy of the said
23
guidelines)
11. That to the shock of all party members and me the 3rd Defendant published the name of the 1st Defendant as the candidate of the party.
12. That the shock arose from the fact that the 1st Defendant is a member of the Peoples Democratic Party, did not obtain any form as started in the guideline of the party and his name was not submitted to the 3rd defendant at all as a candidate.
In reaction, the 1st Defendant filed a Notice of Preliminary objection supported by 26 paragraph affidavit. Paragraphs 3, 4, 5, 10, 11, 12-17 of the said affidavit are very relevant for the determination of this appeal. They read as follows:
3. ?That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he is an active and registered member of the 2nd Defendant as well as its candidate for the Abia State House of Assembly, Aba Central State Constituency.
4. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was an aspirant for the
24
primary election to the State House of Assembly conducted by the National Executive Committee of the 2nd Defendant on the 9/12/2014.
5. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that before contesting the said primary election of my party, he fulfilled all the conditions set out in the Constitution of the Federal Republic of Nigeria 1999, the Constitution of his party (APGA) and the provisions of any other relevant law and guidelines.
10. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he is a registered financial member of the 2nd Defendant.
11. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was duly nominated by credible persons within the Aba Central Constituency to contest for the elective position.
12. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about
25
9am and I verily believe him that he paid a non-refundable fee of N200,000 (Two Hundred Thousand Naira) to the 2nd Defendant before obtaining his ?Expression of Interest Form? from the State Secretariat of the 2nd Defendant in Umuahia.
13. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he also paid a non-refundable fee of N1,000,000 (One Million Naira) to the 2nd Defendant before obtaining his ?Nomination Form? from the State Secretariat of the 2nd Defendant in Umuahia.
14. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he also complied with the provisions of part V paragraph 29 (d), (c) and (f) of the 2nd Defendant?s Electoral Guidelines for Primary Elections 2014.
15. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that all the information which the 1st defendant supplied to the 2nd and 3rd defendants in his
26
nomination form are true and correct.
16. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he fulfilled all the conditions and requirement contained in ?Exhibit A? which is attached to the Plaintiff?s case.
17. That I am informed by the 1st Defendant on the 10/12/2015 at our office, at No. 4 Aba Road Umuahia, Abia State at about 9am and I verily believe him that he was nominated and or sponsored by the 2nd Defendant (APGA) as her candidate for Aba Central State Constituency to contest the 2015 General Election into the Abia State House of Assembly having won the primary of the party conducted on the 9/12/2014 which congress and or primaries was supervised by a congress committee appointed by the National Executive Committee of the 2nd Defendant (APGA) led by Dr. Paul Odenigbo as the Chairman and Barrister Echezona Etiaba as the Secretary.?
It is clear from the affidavit that the fulcrum on which the claim number one of the Plaintiff rested at the lower Court was whether or not the 1st Defendant was a member of the 2nd
27
defendant. It was the pillar on which claim number one rested. The lower Court could not have determined the claim number one without determining the membership of the 1st Defendant. It is trite law that Section 87(9) of the Electoral Act does not vest such jurisdiction in the lower Court See AGI v PDP (supra).
The Learned trial Judge in my respectful view rightly held that the matter was not justiciable. I resolve this issue therefore in favour of the Respondent. The finding of the lower Court is unimpeachable as far as claim No (1) is concerned.
ISSUE NO.2
Whether by declining jurisdiction without considering the suit on the merit including determining the Appellants further affidavit and the written address therein the Court below had not denied the appellant the right to fair hearing.
I have deeply considered the submissions of counsel on this issue. It seems clear that claim no. 1 and claim no. 2 are not intertwined.
Claim No. 2 of the plaintiff reads thus:
?A DECLARATION that the Plaintiff is the lawful candidate of the 2nd in the election into the Abia State House of Assembly, Aba Central Constituency holding on the
28
11th day of April, 2015 which said election is being conducted by the 3rd Defendant in that the Plaintiff emerged as the aspirant with the highest votes in the primaries conducted by the 2nd Defendant.?
Claims No.1 and No.2 do not share the same foetus. The fact that the Court lacks jurisdiction to determine claim Number one does not vitiate claim Number two. The learned trial Judge in my respectful view ought to have gone further to determine claim Number two, claim Number one having failed.
I have noted that one of the reliefs sought by the appellant in his Notice of Appeal is for judgment to be entered in his favour as the person who scored the majority of lawful votes cast at the primary election.
I shall therefore invoke the provision of Section 15 of the Court of Appeal Act to determine claim No. 2 and make necessary orders even though the lower Court failed to do so.
Claim No.2 of the originating summons is supported by paragraphs 2, 3, 7, 8 and 9 of the Affidavit setting out facts relied upon. The paragraphs state as follows:
?2. That I am an active and registered member of the 2nd Defendant as well as its
29
candidate for the Abia State House of Assembly, Aba Central Constituency Election coming up on 11th April, 2015.
3. That in the current political dispensation, I obtained filled and timeously submitted to the 4th Defendant, Prince Nnanna Ukaegbu Expression of Interest and Nomination Forms as an aspirant for the Abia State House of Assembly, Aba Central Constituency primary election holding on 11th April, 2015.
7. That the 2nd Defendant is a political party to which I belong.
8. That the Zonal Chairman of the 2nd Defendant supervised and conducted the said primary election into the Abia State House of Assembly, Aba Central Constituency on 9th December, 2014. I won the said primary election with highest number of votes and a certificate of return was issued to me thereto.
9. That the Returning Officer in the said primary election returned me as I scored the highest vote.?
In reaction, the 1st Defendant sworn to a further affidavit stating as follows:
?1. That I am the 1st Defendant in this suit pending before the Honourable Court.
7. That in answer to paragraph 4 of the Plaintiff?s Counter Affidavit, I
30
restate the fact that I am a fully fledged member of the All Progressive Grand Alliance (APGA) as at the time and period when the 2nd Defendant conducted her primary election.
8. That I attach and annex a copy of my membership card issued to me by the 2nd Defendant and same is marked as ?Exhibit A.?
9. That I participated in the primary election conducted by the 2nd Defendant and owing to my popularity I emerged the winner of the said primary election.
20. That I validly fulfilled all the conditions stipulated in the Constitution of the Federal Republic of Nigeria. All Progressive Grand Alliance Electoral Guidelines for Primary Elections 2014 and the Electoral Act.
22. That I restate that I obtained and validly submitted the Expression of Interest and Nomination form as required by law.
37. That my name was forwarded to INEC by Chief Victor Umeh and Dr. Sani Abdulahi Shinkali.
45. That in answer to paragraph 18 of the Plaintiff?s Counter Affidavit; I aver that I am a member of the 2nd Defendant and I equally participated in the valid primary election conducted by the 2nd Defendant and I emerged the winner having
31
scored the majority of lawful votes cast at that election.
48. That I make this affidavit conscientiously believing same to be true and correct and in accordance with the Oath Act of 2004.?
There are two conflicting contentions by the plaintiff and the 1st Defendant. Their affidavit are in violent conflict. Under this situation, documentary evidence can be used to assess the veracity or otherwise of the conflicting testimonies.
According to Rhodes ?Vivour JSC in INTERDRILL (NIG.) LTD & ANOR. v. U.B.A PLC. (2017) LPELR ? 41907 (S.C.).
?Once documentary evidence supports oral evidence oral evidence becomes more credible as documentary evidence always serves as a hanger from which to assess oral testimony. See KIMDEY & ORS v M. G. of GONGOLA STATE (1988) 2 NWLR (Pt. 77) p.473, OMOREGBE v LAWANI (1980) 3-4 S.C. P. 117.?
Earlier on, Ogbuagu JSC in BUNGE v. GOVERNOR OF RIVERS STATE (2006) 12 NWLR (Pt. 995) 573 had this to say:
?it is also settled that the importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence. it could be used as a hanger from
32
which to test the veracity of the oral testimonies. See the cases of FASHANU v ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35; (1974) 6 S.C. 83 ? per Coker JSC, AWOTE v OWODUNNI (No. 2) (1987) 2 NWLR (Pt. 57) 366 AND ARMELS TRANSPORT LTD v MARTINS (1970) 1 ALL NLR 27 at 32. In the case of ALHAJI IBRAHIM v GALADIMA S. BARDE & 9 ORS (1996) 12 SCNJ 1 (1996) 9 NWLR (Pt. 474) 513, in his dissenting judgment at page 52, OGUNDARE JSC (of blessed memory) referred to the case of ADESEYE v TAIWO (1956) 1 F.S.C. 84; (1956) SCNLR 265 as to an admissible relevant book authority, and stated that it is not conclusive. He reproduced part of the statement of Nnaemeka ? Agu JSC in the case of KIMDEY & 11 ORS v MILITARY GOVERNOR of GONGOLA STATE & ORS (1988) 1 NSCC 827 (IT IS ALSO REPORTED IN (1988) 2 NWLR (Pt. 77) 445 and (1988) 5 S.C.N.J 28 citing FASHANU v ADEKOYA (supra) and stated as follows: No doubts the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be a hanger from which to assess oral testimony is a sound one.?
I have carefully gone through the affidavit filed. I am surprised that the
33
Plaintiff who initiated the action at the lower Court failed to exhibit documents showing the result of the primary election which he claimed to have won and other relevant documents. On the other hand, the 1st Defendant exhibited the certificate issued to him by 2nd Defendant when he won the primary election, his membership card and his INEC FORM C.F 001. These are Exhibits A, B and C of his further affidavit sworn to on 3/5/2016.
Using the documents exhibited by the 1st Defendant as hanger in the light of the afore stated, the claim of the 1st Defendant appears more probable and credible than that of the Plaintiff now Appellant.
It is trite law that civil cases are determined on the preponderance of evidence and balance of probabilities.
According to Mukhtar JSC in AGALA & ORS v OKUNSIN & ORS (2010) 10 NWLR (PT. 1202) 412.
?Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim. See ELIAS v OMO-BARE (1982) 5
34
S.C. 2, WOLUCHEM v GUDI (1981) 5 S.C. page 291, ELIAS v DISU (1962) 1 ALL NLR page 214, and IMANA v ROBINSON (1979) 3-4 S.C 1 and Section 135 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990.?
I am convinced that viewed from all angles the Appellant failed to prove his case on the balance of probabilities. I resolve issue number two in favour of the Respondents.
This appeal lacks merit. It is accordingly dismissed with N60,000.00 costs in favour of the 2nd Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in advance and while in draft, the elucidating lead judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA, I must state, that I am in complete agreement with the reasoning process which led to the conclusion reached thereon, that the instant appeal matter lacks substance and merit. Furthermore, that it deserves nothing but an order of dismissal. In this vein, I also dismiss the appeal. I abide by the consequential orders made in the said lead judgment of my learned brother Awotoye, JCA, together with the one which pertained to costs.
35
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft judgment just delivered by my learned brother, T.O. Awotoye, and I agree with his reasoning and conclusions therein.
?
I too hold that the trial Court was right on the issue of lack of jurisdiction to consider issue of membership of any person to Political Party, but was wrong to strike out the suit, without considering the main issue of the suit. And by invoking the Section 15 of the Court of Appeal Act 2004 to do what the trial Court should have done, in the circumstances, I agree with the sound reasoning of my Lord, Awotoye JCA, that Appellant failed to prove his claim on the preponderance of evidence. I abide by the consequential orders in the lead judgment.
36
Appearances:
NKEM ANTHONY NNABA, ESQ.For Appellant(s)
O. E. UKPAI, ESQ.For Respondent(s)
Appearances
NKEM ANTHONY NNABA, ESQ.For Appellant
AND
O. E. UKPAI, ESQ.For Respondent
