USMAN v. APC & ORS
(2020)LCN/15773(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/S/8/2020
Before Our Lordships:
Ali Abubakar BabandiGumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
ABDULLAHI G. USMAN APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS 2. MUSA MOHAMMED TUNGULAWA 3. KEBBI STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT(S)
RATIO:
THE ISSUE OF JURISDICTION AND CROSS APPEAL
The issue of jurisdiction, therefore, having been settled at the Court below, can only be entertained on appeal by way of a cross appeal on the issue and where no such appeal or cross appeal is filed, this Court would naturally lack the jurisdiction to reopen an issue already settled by the Court below. Good law no doubt. FREDERICK OZIAKPONO OHO, J.C.A.
THE ISSUE OF JURISDICTION BEING RAISED FOR THE FIRST TIME
However, where learned Appellant’s Counsel got it all wrong is the fact that a party is not precluded, repeat, not precluded from still raising the issue of jurisdiction, even for the first time at the apex Court so long as it is raised, not as a substantive issue for determination but by way of preliminary objection. Here is what the apex Court per NGWUTA, JSC who delivered the lead judgment had to say on the issue in the case of AKERE & ORS vs. GOVERNOR OF OYO & ORS (Supra);
“A Respondent is at liberty to adopt the issue framed by the Appellant from the groundsof appeal or he may give the issue a slant to favour his own case, but in so doing, he has to confine himself to the grounds of appeal. A Respondent who did not cross-appeal has no business presenting issues from the blues. In this case, the issue of jurisdiction did not arise from any or relate to, any of the Appellants’grounds of appeal. Here, the issue of jurisdiction raised not by way of preliminary objection, but as a substantive issue for determination, is grossly incompetent as it did not arise or relate to any of the Appellants’ grounds of Appeal.” FREDERICK OZIAKPONO OHO, J.C.A.
THE PRINCIPLE ON DETERMINING THE JURISDICTION OF A COURT
In the case of APGA vs. ANYANWU & ORS (2014) LPELR-22182 (SC), Page 37, Paras B-E, cited by learned Counsel for the 3rd Respondents the apex Court stated the law on what determines the jurisdiction of the Court to entertain a matter thus;
“The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant, i.e. the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit. See: Inakoju vs. Adeleke (Supra); Elabanjo vs. Dawodo (2006) 15 NWLR (Pt. 1001) 75; Adeyemi vs. Opeyori (1976) 9-10 SC 31; Tukur vs. Governor Gongola State (1989) 4 NWLR (Pt. 117) 517.” FREDERICK OZIAKPONO OHO, J.C.A.
THE RULES GOVERNING PRELIMARIES AS TO AN ELECTION
In DINGYADI & ANOR vs. INEC & ORS. (2011) LPELR-950 (SC), PAGE 41, PARAS A-D, it was held thus;
“The issue of nomination of candidate is governed by the rules governing preliminaries as to an election. Preliminary rules are those rules which determine intra-party resolutions and nominations to elective offices. The relationship of nomination is between the political party, its members and the electoral body. The intention of the law is to vest nomination of candidates in the membership of a political party and further make nomination a preliminary issue for any person wishing to contest. Nomination of a candidate is exclusively the responsibility of his political party under the Electoral Act 2006.” FREDERICK OZIAKPONO OHO, J.C.A.
THE RIGHT TO NOMINATE OR SPONSOR A CANDIDATE BY A POLITICAL PARTY
See the case of PEOPLE’S DEMOCRATIC PARTY & ANOR vs. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC), where it was held that a member of a party has no legal right to be nominated by his party. At page 35, the Apex Court per RHODES-VIVOUR, JSC has this to say on the subject;
“The right to nominate or sponsor a candidate by a political party is a domestic right of the party. A political matter within the sole discretion of the party. A member of the party has no legal right to be nominated/sponsored by his party. A Court thus has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party.” FREDERICK OZIAKPONO OHO, J.C.A.
THE ORDINARY AND GRAMMATICAL MEANING OF STATUTES WHEN BEING INTERPRETED
It is trite that statues are to be given their ordinary and simple grammatical meaning and connotation when they are interpreted especially where their provisionsas in this case, are straight and unambiguous. It is without any iota of doubt that Sections 87 and 34 of the Electoral Act, 2010 (as amended) does not apply to the subject matter of this case, this being a Local Government Election which is within the exclusive preserve of the Kebbi State Independent Election Commission to conduct as against INEC. The claim of the Appellant as claimant was predicated on the wrong law and therefore the preliminary objection of the 2nd Respondent is meritorious and it succeeds. In consequence thereof this Court lacks the jurisdiction to entertain this matter and same is struck out.
ABUBAKAR MAHMUD TALBA J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Kebbi State, sitting at Argungu and delivered on the 21st day of January, 2020 Coram: A. AHMAN, J. pursuant to the 1st Respondent’s Primary Election for the Chairmanship of Argungu Local Government Council of Kebbi State. The 1st Respondent preparatory to the Local Government Election in Kebbi State conducted its Primary Election for the nomination of its candidate in all the Local Government Councils of Kebbi State on the 12th October, 2019. The Appellant and the 2nd Respondent were aspirants I n the 1st Respondent’s Primary Election; while the 3rd was the State Commission responsible for the conduct of the Local Government Elections in the State.
At the end of the conduct of the 1st Respondent’s Primaries, the Appellant was said to have scored the highest votes of One Hundred and Seventy-Two (172), while the 2nd Respondent scored One Hundred and Thirty-Nine (139). The Electoral Committee of the 1st Respondent was said to have declared this result and the Appellant, declared winner of the primary Election.Subsequently, the 1st Respondent, after the submission of the results, was said to have refused to submit the name of the Appellant, as winner to the 3rd Respondent; but rather submitted the 2nd Respondent’s name.
Dissatisfied with the conduct and outcome of the primaries, the Appellant as Claimant, approached the Court below with an Originating Summons dated the 19th day of October, 2019 for the determination of the following questions;
1. WHETHER by the tenor of Section 87 (4), (d), (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 20 of the All Progressive Congress Constitution (October, 2014 as amended) the 1st Defendant can lawfully present the name of a candidate with lower score to the 3rd Defendant for the conduct of the Local Government Election scheduled for 26th October, 2019 in Kebbi State.
2. WHETHER by the tenor of Section 87 (4), (d), (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 20 of the All Progressive Congress Constitution (October, 2014 as amended) the 1st Defendant can lawfully present the name of a candidate with lower score to the 3rd Defendant for the conduct of the Local GovernmentPrimary Election in to the office of the Local Government Chairman of Argungu scheduled for 26th October, 2019 in Kebbi State.
3. WHETHER by the tenor of Section 34 of the Electoral Act, 2010 (as amended) the 3rd Respondent can conduct its Local Government Election on 26th October, 2019 without it publishing by displaying or causing to be displayed at the relevant offices(s) of the Commission the statement of the full names and addresses of all candidates standing nominated for the Local Government Election.
Upon the determination of the foregoing questions, the Appellant as Claimant, equally claimed the following reliefs;
1. A DECLARATION that by the tenor Section 87 (4), (d), (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 20 of the All Progressive Congress Constitution (October, 2014 as amended) the 1st Defendant cannot lawfully present the name of a Candidate with lower score to the 3rd Defendant for the conduct of the Local Government Election in Kebbi State scheduled for the 26th October, 2019 after the Conduct of the indirect Primaries of 12th October, 2019 which produce a candidate with a Higher Score.
2. A DECLARATION that by the tenor of Section 87 (4), (d), (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 20 of the All Progressive Congress Constitution (October 2014 as amended) the 1st Defendant cannot lawfully present the 2nd Defendant who score a lower vote from the Primary Election Conducted on 12th October, 2019 to the 3rd Defendant for Chairmanship of Argungu Local Government Council in the forthcoming Local Government Election scheduled for the 26th October, 2019 when the Claimant scored the highest votes from the Primary Election Conducted on 12th October, 2019.
3. A DECLARATION that by the tenor of Section 34 of the Electoral Act 2010 (as amended) the 3rd Respondent cannot conduct its Local Government Election of 26th October, 2019, without publishing by displaying or causing to be displayed at the relevant office(s) of the Commission the statement of the full names and addresses of all candidates standing nominated for the Local Government Election.
4. AN ORDER setting aside any purported nomination and submission of the 2nd Defendant’s name to the 3rd Defendant as the 1st Defendant aspirants for the Chairmanship of ArgunguLocal Government Council after the 1st Defendant’s Primary Election held on 12th October, 2019, which produce the Claimant as a winner of the Primary Election.
5. AN ORDER directing the 3rd Defendant not to receive, accept, attend to or deal with any purported name of the 2nd Defendant as nominated candidate for the Chairmanship of Argungu Local Government Council after the 1st Defendant’s Primary Election held on the 12th October, 2019 which produce the Claimant as a winner.
6. AN ORDER directing the 3rd Defendant to recognize and accept the name of the Claimant as the 1st Defendant candidate for the Chairmanship of Argungu Local Government Council in the Local Government Election scheduled for the 26th October, 2019.
7. AN ORDER suspending the 3rd Defendants Local Government Election scheduled for the 26th October, 2019 until when the 3rd Respondent publish the name of nominated aspirant for the election 30 days to the election.
8. ANY OTHER orders as the Court may deem fit to make in the circumstances.
The Originating Summons had in its support an Affidavit of 26 Paragraphs to which a number of documentary Exhibits were attached.These were marked as Exhibits A & B. See Pages 5-18 of the Record of Appeal. In reaction to the processes filed by the Appellant as Claimant, the Respondents filed their respective Counter Affidavits. The 1st Respondent first filed a memorandum of conditional appearance dated the 8th day of November, 2019 and then a Notice of Preliminary Objection of the same date, together with 3 exhibits and a written address. On the part of the 2nd Respondent, a Counter Affidavit was as well filed to which a total of 2 exhibits were attached and a written address on the 8th day of November, 2019. The 3rd Respondent also filed a Counter Affidavit of 14 paragraphs and a notice of Preliminary Objection.
On the 24th of October, 2019, the Appellant, in reaction to the processes filed by the Respondents, filed a Further Affidavit in support of Originating Summons and attached Two (2) documents marked as Exhibits D & E. The Further Affidavit is contained at Pages 150-178 of the Record of Appeal. These represented basically, the state of the processes filed before the Court below, shortly before the Court delivered its judgment on the 21st day of January, 2020 infavour of the Respondents, dismissing the Claims of the Appellant as Claimant. See pages 344-372 of the Record for the Judgment of the Court below.
Dissatisfied once again, the Appellant as Claimant has come before this Court vide a Notice of Appeal filed on the 29th day of January, 2020. The Notice of Appeal is contained at pages 373-380 of the Record of Appeal. There are seven (7) Grounds of Appeal filed.
ISSUES FOR DETERMINATION:
There are a couple of issues filed by the Appellant, for the determination of this Appeal thus;
1. WHETHER the Learned trial Judge has Jurisdiction or not on a complaint arising from the conduct of the 1st Respondent’s Primary Election conducted on 12th October 2019, in Kebbi State. (Grounds 3, 4 and 5).
2. WHETHER by EXHIBIT G issued by the Secretary of the 1st Respondent; the Appellant is not duly nominated as the 1st Respondent’s candidate for the Chairmanship of Argungu local Government Council of Kebbi State. (Grounds 1, 2, 6 and 7).
On the part of the 1st Respondent, two (2) issues were also nominated for the determination of this Appeal thus;
1. Whether the Appellant is entitled to therelief sought in his Originating Summons,
2. Whether the Appellant’s appeal before my lords is competent.
The 2nd Respondent on his part simply adopted the two (2) issues nominated by the Appellant for the determination of the Appeal, and formulated a 3rd issue thus;
Whether the Electoral Act, 2010 as amended is applicable to the Kebbi State Local Government Elections conducted by the Kebbi State Independent Electoral Commission under the Kebbi State Independent Electoral Commission Law, 2000. (Grounds 3, 4, 5, 6 and 7).
On the part of the third (3rd) Respondent three (3) issues were nominated for the determination of the Appeal as follows;
1. Whether the trial Court had jurisdiction to entertain the complaint of the Appellant? (Grounds 3, 4 and 5).
2. Whether having regards to the facts and circumstances of this case, the Appellant is entitled to the declaratory Reliefs sought against the 3rd Respondent? (Grounds 1, 2 and 7).
3. Whether Reliefs 5, 6 and 7 sought by the Appellant are not grantable? (Ground 6).
In addition, the Respondents each filed a notice of Preliminary Objection to the hearing of this Appeal. The1st Respondent’s Notice of Preliminary Objection was filed on the 14th day of February, 2020 and contained the following Grounds:
1. That the Appellant filed this action on his right as the member of the 1st Respondent.
2. That the 1st Respondent is governed by its Constitution.
3. That any person(s) who chooses to be a member of the 1st Respondent must abide by its Constitution.
4. That the Constitution of the 1st Respondent provides a condition precedent for any of its members to satisfy before instituting an action against the 1st Respondent before a Court of law.
5. That the Appellant failed to satisfy the condition precedent before filing this action.
6. That failure of the Appellant to satisfy the condition precedent before filing an action affects the jurisdiction of the trial Court as well as this Court.
The 1st Respondent’s Preliminary Objection was argued in the 1st Respondent’s brief of argument filed on the 21-2-2020 to the effect that the subject matter of the case does not fall within the jurisdiction of this Court so long as there is contained a feature in the case, which prevents the Courtfrom exercising its jurisdiction. In addition, it was contended that the case does not come before the Court initiated by due process of law, having not fulfilled a condition precedent to the exercise of jurisdiction. Counsel cited the case ofIAL 361 INC vs. MOBIL OIL (NIG.) PLC (1999) 5 NWLR (PT. 601) at 21 on the effect of non-compliance with stipulated pre-conditions for setting a legal process in motion. Against the backdrop of this position, Counsel referred this Court to the provision of Article 21 (C) (i) of the 1st Respondents Constitution, which provides thus;
“Where a member is not satisfied with the decision of any of the adjudicatory organs of the Party he or she shall have the right to appeal within 7 days of the decision to the immediate appellant body in the Party as prescribed in this Constitution”.
In respect of the instant appeal, this Court was informed that the Appellant was disqualified from contesting the primary election of the 1st Respondent and that he failed to lodge a complaint challenging his disqualification by the screening committee and rather went ahead and instituted this action. For this reason, it wasargued that this Court lacked the necessary vires in entertaining this Appeal, based on the decision of Court in IAL 361 INC vs. MOBIL OIL (NIG.) PLC (1999) (supra). He urged this Court to strike out this appeal for lack of jurisdiction.
On the part of the second Respondent, the Notice of Preliminary Objection was predicated on the following Grounds:
1. That apart from Election Petition Tribunal, no Court has the jurisdiction to entertain any matter pertaining to any election under the Kebbi State Independent Electoral Commission Law, 2000.
2. Non fulfillment of condition precedent before commencing any action in Court by the Appellant.
3. Electoral Act as amended is not applicable to the election under reference
4. Appellant did not comply with the Constitution of the 1st Respondent.
In his argument in sustenance of the Notice of Preliminary Objection, learned 2nd Respondent’s Counsel contended that the appeal is incompetent and that this Court lacks the jurisdiction to entertain same especially in this case where there is contained a feature in the case, which prevents the Court from exercising its jurisdiction. Counselcited the case of MUSACONI LTD vs. ASPINALL (2014) ALL FWLR (PT. 710) 127 at 1293.
On the question of the exclusion of Courts other than election tribunals, Counsel contended that the body created and charged with the responsibility for matters relating to elections into the various offices of the local government council, including the chairmanship position in Kebbi State is the Kebbi State Independent Electoral Commission (KESIEC) by virtue of Section 29(1) of the Kebbi Independent Electoral Law No. 21 of 2000 which provides thus;
“Subject to Section 23 and 28 of this law, no Court or other tribunal shall have jurisdiction or competence to “inquire into or entertain any cause, matter, issue or question pertaining to or arising from the contest or conduct of an election under this law”. (Underlined, that of Counsel for emphasis)
According to learned Counsel this provision clearly ousted the jurisdiction of both the Court below and this Court.
On the question of non-compliance with the mandatory provision of Article 7(4) of the Kebbi State Independent Electoral Commission Guidelines 2019, Counsel contended that a Courtis competent when among other things, conditions precedent are fulfilled; otherwise, that the Court would lack the jurisdiction to entertain the case. See IAL 361 INC vs. MOBIL OIL (NIG) PLC (Supra). According to Counsel, the guidelines for the Local Government Councils General Election 2019 of Kebbi State as issued by the Kebbi State Independent Electoral Commission (KESIEC) prescribes that any person who is not satisfied with the State Screening Committee regarding qualification or disqualification of a candidate shall either accept such decision or petition to the Commission’s Headquarters Birnin-Kebbi for review. It was further contended that a close look at the originating process of the Appellant, does not show anywhere that the Appellant applied for a review of his disqualification before approaching the Court below and this Court.
On the question of non-applicability of the provisions of the Electoral Act, 2010 to the instant case, it was submitted by Counsel that the pivot on which this case stands both at the Court below and before this Court is Section 87 of the Electoral Act, 2010 which is not applicable to elections conducted at thelocal governments councils in Nigeria, particularly to Kebbi State. It was also contended that where an originating summons calls for the interpretation of a piece of legislation, which is not applicable in a given situation, such originating summons is said to be incompetent as it cannot lawfully stand on a wrong law or law that is utterly inapplicable. The argument of Counsel is that Sections 87 and 34 of the Electoral Act, 2010 as amended relied upon by the Appellant are not applicable to the subject matter of this case and that the Commission created for purposes of Sections of 87 and 34 of the Electoral Act, is the Independent National Electoral Commission (INEC). Besides this, he argued that the Kebbi State Independent Electoral Commission is not INEC and that by Section 156 of the Electoral Act, 2010 “Commission” means: the Independent National Electoral Commission. Therefore, it was argued that if “Commission” as used in Sections 87 and 34 of the Kebbi State Independent Electoral Commission or any other State Electoral Commission, were that of INEC, that the Act would have been explicit on the issue and not gone ahead to defineits own: “State Commission”.
On the question of non-compliance with the party’s Constitution, Counsel contended that the case, which led to this Appeal is incompetent due to the failure of the Appellant to comply with the Constitution of the All Progressives Congress (APC). Counsel submitted that the choice to belong to any political party or any association is at the discretion of a person and that the Joining of any association such as political party is free and voluntary. He argued however, argued that whenever a person chooses to belong to any association, he is bound to obey the Constitution, rules and regulations of the association. Counsel cited the case ofMBANEFO vs. MOLOKWU (2014) 2 SCNJ 581 at 605. Against the backdrop of this position, Counsel referred Court to Articles 21 (c) (i) and 21(A) (x) of the Constitution of APC, which he said the Appellant negated whilst instituting this matter in Court.
In the case of the 3rd Respondent, the issues raised and canvassed at paragraphs 2.10, 2.11, 2.22 and 2.27 of the Appellants brief of argument were zeroed upon and the 3rd Respondent objected thereon on the ground that thisCourt has no jurisdiction to entertain and determine same. The argument of Counsel is that in the said paragraphs, it is contended by the Appellant that Exhibit G which is the purported result of the Primary Election of the 1st Respondent held on the 12th of October, 2019, is presumed correct and urged this Court to direct the 3rd Respondent to withdraw the Certificate of Return issued to the 2nd Respondent and re-issue same to the Appellant.
The contention of Counsel, is that these are issues not raised and argued at the Court below and thus; are fresh issues which can only be raised with the leave of Court. Counsel cited the case of OLAGUNJU & ANOR vs. PHCN PLC (2011) LPELR-2556 (SC), PAGE 10, PARAS D-F, in support of this issue. It was further argued that an appeal is a continuation of the original action, and not the commencement of a new action and that it is for this reason that parties are enjoined to be confined to their cases as argued in Court of first instance. See NGIGE vs. OBI (2006) 14 NWLR (PT. 999) 1 AT 225; AKPA vs. ITODO (1997) 5 NWLR (PT. 506) 589 AT 604 and ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT. 109) 250 AT 266;LAGOS STATE BULK PURCHASE CORPORATION vs. PURIFICATION TECHNIQUES (NIG) LTD. (2012) LPELR-20617 (SC); MBANEFO vs. AGBU & ANOR. (2014) LPELR-22147 (SC), PAGE 19, PARAS C-F.
Learned Counsel finally contended that from the Record of Appeal, it is glaring that the Court below was neither invited by the Appellant to determine the genuineness and correctness of the alleged result of the Primary Election of the 1st Respondent, nor urged to withdraw or cancel the Certificate of Return issued to the 2nd Respondent and re-issue same to the Appellant. Again, that it is equally clear that the Court of trial did not make any pronouncements or findings on the issues. Counsel disagreed that the Appellant could rightly raise the said issues before this Court for the first time ever without leave and that it is for the matters above stated that the 3rd Respondent has urged this Court to discountenance the fresh issues contained in paragraphs 2.10, 2.11, 2.22 and 2.27 of the Appellant’s Brief of Argument for being incompetent and liable to be struck out. Counsel urged the Court to so hold.
In opposition to the sustenance of the notice of preliminary objection,the Appellant filed processes, which he erroneously dubbed: “Reply on points of law to the 1st Respondent’s brief of argument”; “Reply on points of law to the 2nd Respondent’s brief of argument”; both documents were filed on the 25-2-2020 and 21-2-2020 respectively, while an appropriate “Reply to the 3rd Respondent’s brief of argument” was filed on the 11-3-2020. It would be appropriate to state here that the replies of the Appellant to the preliminary objections raised by the 1st and 2nd Respondents on the issue of the Court’s jurisdiction, received answers which were on all force in terms of contents and substance. The contention of the Appellant is that the issue of jurisdiction having been raised and same disposed of at the Court below, the situation no longer afforded the same Respondents, the opportunity of raising it again on Appeal, except by way of a cross Appeal. Counsel cited the apex Court in the of SALAMI vs. MUSE FAMILY (2019 WRN 49 at 39 ratio 6 on the question of when the issue of jurisdiction of Court can be raised at any time, but quickly stated that such a window of opportunity isonly open to the Respondents where the issue has not been raised before in the same cause of proceedings. Counsel submitted that in the instant Appeal, the 1st and 2nd Respondents wrongly relied on the authority ofINC vs. MOBIL OIL (NIG) PLC (1999) 5 NWLR (PT. 601) at 21 in arguing their preliminary objections before thisCourt, as the Respondents’ objections are not being raised for the first time. According to Counsel, atthe Court below, when the issue of Jurisdiction was raised, the Court rightly over-ruled their objectionsat pages 356-357 of the record of appeal thus;
“To that extent, the preliminary objection filed and argued by the defendants is hereby dismissed for lacking in merit, this Court has and it hereby assumes jurisdiction to hear and determine the claim of the claimant”.
The contention of Counsel is that so long as the 1st and 2nd Respondents failed to Cross Appeal on the question of the lower Court’s ruling, dismissing the Respondents’ preliminary objections, which was the same in all forms with the present, it means that the Respondents have accepted the position as it is. To this end, Counsel citedthe Supreme Court in LAU vs. PDP (2019) 3 NWLR (PT. 1658) at 92 where the apex Court held on the duty of a Respondent who seeks a reversal of an adverse finding of Court-
“A respondent who seeks reversal of an adverse finding can only do so by way of notice of appeal/cross appeal, and not by a respondent’s brief”. See DUMBO vs. IDUGBOE (1983) 1 SCNLR 29.
Learned Counsel also relied on the case ofAKERE vs. GOVERNOR OYO STATE (2012) 50 NSCQR at 349-350 ratio 2 where the apex Court had this to say on when the issue of jurisdiction cannot be raised-
“A Court of trial or a Court exercising appellate jurisdiction must first of all determine whether or not it has jurisdiction to take cognisance of the matter presented to it for adjudication. Though the issue of jurisdiction can be raised at any time either in the trial Court or in an Appellate Court, the right to do so like any other right is not absolute. There are certain circumstances where the issue cannot be raised unless certain requirements are complied with.
Secondly the issue of jurisdiction was raised by way of preliminary objection by the respondents in thetrial wherein they argued that the suit was statute barred.
There was no appeal against the ruling of the trial Court on the preliminary objection declaring that the high Court had jurisdiction to hear the case. The issue of jurisdiction having been settled at the trial Court can only be entertained on appeal to the lower Court and since there was no such appeal, the lower Court lacked the jurisdiction to reopen an issue already settled by the trial Court”.
In opposition and in response to the objection raised by the 3rd Respondent, concerning the issues raised for the first time on appeal in paragraphs 2.10, 2.11, 2.22 and 2.27 of the Appellant’s brief of argument on the ground that EXHIBIT G, the primary election result is presumed correct and was not argued before the trial Court, Counsel simply referred this Court to the decision in the case of MARAFA & ORS vs. DAN ALHAJI & ORS (2019) LPELR 47012 (CA) where the Court held that:
“Election matter is sui generis, therefore leave is not required for filing of Appeal on election cases”.
The contention of Counsel is that in the instant case, theAppellant’s claim before the Court below was that he participated and won the primary election of the 1st Respondent conducted on the 12th October, 2019 and that to prove this assertion the Appellant pleaded EXHIBIT A (See page 9 of the record of Appeal) and also EXHIBITS B and EXHIBIT G (See pages 18, 200 and 283 of the record of Appeal). According to Counsel, the Appellant canvased argument on EXHIBIT G which is the only primary election result from the Primary election of 12th October, 2019 to the effect that it is the only genuine primary election result. (See pages 207-217, 289-292 and 305-311 of the record of Appeal). Counsel cited the case of LAWAL vs. A.P.C (Supra) and argued that the Appellant’s case is a pre-election matter under Section 285 of the 4th Alteration to the 1999 Constitution (Alteration no. 21) 2017 and is therefore sui generis. The effect of this state according to Counsel, is that the decision of OLAGUNJU & ANOR vs. PHCN PLC (2011) LPELR 2556; LAGOS STATE BULK PURCHASE CORPORATION vs. PURIFICATION TECHNIQUES (NIG) LTD (2012) LPELR 20617 and MBANEFO vs. AGBU & ANOR (2014) LPELR 22147 relied upon by the 3rdRespondent are not applicable in this case because these are decisions rendered under Section 233(3) of the 1999 Constitution applicable to regular civil matters. Finally, Counsel urged this Court to dismiss the Notice of Preliminary Objections of the 1st, 2nd and 3rd Respondents and to have the matter heard on its merit.
RESOLUTION OF PRELIMINARY OBJECTIONS:
After a calm and careful consideration of the issues raised in the Preliminary Objections of the 1st, 2nd and 3rd Respondents, it may just be safe and appropriate to suggest that it would be needless waste of valuable time to pore over dusty volumes on the issues raised and argued by learned Counsel for the Respondents. To begin with, the decision of the Supreme Court in the case of AKERE vs. GOVERNOR OYO STATE (Supra) cited by learned Counsel for the Appellant appropriately addresses the appropriateness of the issues raised and concludes that the Respondents were not out of order in raising the said issues.
Although the issue of jurisdiction can be raised at any time, even for the first time at the apex Court, certainly, the right to do so is not absolute. Providing a veritable ground forpreventing a party from raising it at will, is the situation where the issue of jurisdiction was raised at the Court below by way of preliminary objection and the Court ruled upon it, that it is clothed with the requisite vires to entertain the matter. The issue of jurisdiction, therefore, having been settled at the Court below, can only be entertained on appeal by way of a cross appeal on the issue and where no such appeal or cross appeal is filed, this Court would naturally lack the jurisdiction to reopen an issue already settled by the Court below. Good law no doubt.
However, where learned Appellant’s Counsel got it all wrong is the fact that a party is not precluded, repeat, not precluded from still raising the issue of jurisdiction, even for the first time at the apex Court so long as it is raised, not as a substantive issue for determination but by way of preliminary objection. Here is what the apex Court per NGWUTA, JSC who delivered the lead judgment had to say on the issue in the case of AKERE & ORS vs. GOVERNOR OF OYO & ORS (Supra);
“A Respondent is at liberty to adopt the issue framed by the Appellant from the groundsof appeal or he may give the issue a slant to favour his own case, but in so doing, he has to confine himself to the grounds of appeal. A Respondent who did not cross-appeal has no business presenting issues from the blues. In this case, the issue of jurisdiction did not arise from any or relate to, any of the Appellants’grounds of appeal. Here, the issue of jurisdiction raised not by way of preliminary objection, but as a substantive issue for determination, is grossly incompetent as it did not arise or relate to any of the Appellants’ grounds of Appeal.” (Underlined, mine for emphasis).
This, having been settled, the next issue which aptly captures the attention of this Court, is the question of the non-applicability of the Electoral Act, 2010 to the instant case, this being an Election into the Local Government Council of Kebbi State of Nigeria and not any one of the elections to be conducted by the INEC. The submission of learned Counsel to the 2nd Respondent on the issue is that the pivot on which this case stands both at the Court below and Appeal Court is Section 87 of the Electoral Act, 2010, which is not applicable toelections conducted at the Local Government Elections in Nigeria, particularly to Kebbi State.
Counsel’s contention against the backdrop of this submission, is that where an originating summons calls for the interpretation of law that is not applicable in a given situation, such originating summons is incompetent as it cannot stand on a wrong law or law that is not applicable. The argument of Counsel, in essence is that Sections 87 and 34 of the Electoral Act, 2010 as amended relied upon by the Appellant is not applicable to the subject matter of this case and that the Commission created for the purposes of Sections 87 and 34 of the Electoral Act, is the Independent National Electoral Commission (INEC). Besides, he argued that the Kebbi State Independent Electoral Commission is not INEC and that by Section 156 of the Electoral Act, ‘Commission’means Independent National Electoral Commission. Therefore, it was further argued that if ‘Commission’ as used in Sections 87 and 34 of the Kebbi State Independent Electoral Commission or any other State Electoral Commission, were that of INEC, that the Act would have said so or atleast would not have gone ahead to define its own “State Commission”. After a careful consideration of this issue, this Court could not agree less with learned 2nd Respondent’s Counsel. In short, this Court in the case of ACN vs. RIVERS STATE INEC & ORS (2013) LPELR-21168, per FASANMI, JCA had this to say on the subject:
“Section 25(1) of the Electoral Act, 2010 stipulates: ‘Elections into the offices of the President and Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, House of Representatives and the House of Assembly of each State of the Federation shall be held in the following orders: (ii) Elections into the offices of Chairman and Vice Chairman and membership of an Area Council shall be held on the dates to be appointed by the Independent National Electoral Commission… In Section 156 of the Electoral Act, 2010, “Area Council” means Area Councils recognized and existing by virtue of Section 3(6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly inaccordance with Section 8(5) of the Constitution. In Section 318 of the Constitution of Nigeria, 1999 as Amended, “Area Council” in the interpretation clause means each of the Administrative areas within the Federal Capital Territory, Abuja. Section 157 of the Electoral Act, 2010 stipulates: -‘The Electoral Act, 2006 and Independent National Electoral Commission Act, Cap 15, Law of the Federation of Nigeria, 2004 are repealed’. A community reading of the relevant provisions reproduced above shows that the Electoral Act, 2006 was repealed by virtue of Section 157 of the Electoral Act, 2010. Also the provisions in the Electoral Act, 2010 did not stipulate any provision to guide and regulate the conduct of Local Government Elections… The Electoral Act, 2006 was enacted to regulate the conduct of the Local Government Election and this cannot be said of the Electoral Act, 2010. …The Area Council Election is not the same thing as the Local Government Council Election.”
(Underlined, mine for emphasis).
See also the case of APC vs. PLATEAU STATE INDEPENDENT ELECTORAL COMMISSION (2018) LPELR-44569, where this Courtper JAURO, JCA had this to say on the subject:
“See PDP vs. INEC (1999) 11 NWLR (PT. 626) 191; Part iv and vi, Section 25(1) and (2) and the title of the Electoral Act, 2010 (as Amended) expressly mentioned Area Council but did not mention Local Government Council, hence by necessary implication it excludes Local Government Councils. The Constitution being the ground norm clearly separated Local Government Councils from Area Councils, otherwise the six Area Councils would have been added to 768 Local Government Areas to make them 774 Local Governments… the contention of the Appellant is therefore misconceived…”
Arising from the foregoing, this Court finds it exceedingly difficult to fault the arguments of learned 2nd Respondents’ Counsel on the issue. There is no gainsaying the fact that under Sections 87 and 34 of the Electoral Act, 2010and upon which the Appellant as Claimant had predicated his case from inception are not applicable to the subject matter of this case, this being a Local Government Election, the conduct of which is the sole preserve of the Kebbi State Independent Electoral Commission and not theIndependent National Electoral Commission (INEC). The situation can be likened to a voyage, which would have to be embarked upon by boats berthed on different streams. By predicating his action on the provisions of the Electoral Act, 2010 rather than the provisions of the Kebbi State Electoral Law, 2000 the Appellant as Claimant, could be said to have unwittingly boarded a boat sailing on the wrong stream with obvious devastating consequences.
To this end, the claim of the Appellant as Claimant, which has been predicated on the wrong law, is moribund and the Preliminary Objection of the 2nd Respondent succeeds to the hilt. This Court therefore lacks the jurisdiction to entertain this matter and it is accordingly struck out.
The notice of Preliminary Objections having been laid to rest, this Court shall now consider the substantive Appeal. This being a Court of penultimate jurisdiction, it is enjoined to consider and pronounce on all issues put across by the parties. The mere fact that the Court had made a finding on the question of the competence of the Appeal does not signify the end of its tasks as far as the case is concerned. For its tasks to becompletely done, it has to go ahead and give a considered judgment on the substantive matter. This is just in case the Court’s Ruling on the question of the competence of the Appeal has been wrongly decided. See the case of OBIUWEUBI vs. CENTRAL BANK NIGERIA (2011) LPELR – 2185. See alsoJAMGBADI vs. JAMGBADI (1963) 2 SCNLR P. 311.
DETERMINATION OF SUBSTANTIVE APPEAL:
After carefully considering the issues raised for the determination of this Appeal by the learned Counsel for the parties, it is discovered that except for a few instances of differences occasioned by semantics, that the issues are nonetheless identical to a great extent. To this end, this Appeal shall be determined based on the issues nominated by the Appellant. The Appellant’s Brief of argument filed on the 7-1-2020 was settled by HUSSAINI ZAKARIYAU, ESQ., while the brief of the 1st Respondent was filed on the 21-1-2020 and settled by SANUSI SAMAILA ESQ.,. The brief of the 2nd Respondent was filed on the 17-2-2020 and settled by CHIEF MAGNUS IHEJIRIKA. On the part of the 3rd Respondent, the brief of argument was filed on the 9-3-2020 and settled by LAGALO DANLAGALO ESQ. Upon the receipt of the briefs of argument of the Respondents, the Appellant filed Reply briefs on the 25-2-2020; 21-2-2020 and 11-3-2020 to the issues raised by the 1st, 2nd and 3rd Respondents respectively. On the 12-3-2020 at the time of the hearing of this Appeal, learned Counsel for the parties adopted their respective briefs of argument and urged this Court to decide in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE
WHETHER the Learned trial Judge has Jurisdiction or not on a complaint arising from, the conduct of the 1st Respondent’s Primary Election conducted on 12th October, 2019 in Kebbi State.
In arguing this issue, learned Counsel submitted that the law relating to this issue is as provided for by Section 87 (9) of the Electoral Act 2010 (as amended). Counsel further submitted that the Appellant’s claim being a complaint of an aspirant in respect of the Primary Election of his party, dealing with the question of non-compliance with the Electoral Act, 2010 and the APC Constitution is properly before the Court and he urged this Court to so hold. Counsel cited the case of EZE VS. P.D.P (2019) 1 NWLR (PT. 1652) at 6 ratio 6 on the question of who can be addressed as an “aspirant” in relation to elections.
Counsel contended that the jurisdiction of the trial Court is determined by the Appellants Claim/complaint before the Court as revealed by his statement of claim or originating summons. See the case of AGHEDO vs. ADENOMO (2018) 13 NWLR (PT. 1636) at 268. It was further contended that in the instant case; the Appellant’s originating summons and the further affidavit in support of the originating summons is what is used in determining the jurisdiction of the trial Court. (See page 1-29 and 129, 178 of the record of Appeal). Counsel disclosed that the Appellant in paragraph 7 and 23 of his originating summons (See page 6 and 8 of the record of Appeal) and paragraph 8 of the further and better affidavit in reply to the 1st Respondent’s counter affidavit (See page 194 of the record of Appeal) complained that he was an aspirant in the Primary election of the 1st Respondent conducted on 12th October, 2019 and that he won the primary election with a total votes of One Hundred and Seventy Seven (177) but that his name was not submitted to the3rd Respondent. (See page 6, 8 and 194 of the record of Appeal).
According to Counsel the only Primary Election result recognised by the 1st Respondent as its authentic Primary Election as issued: by the 1st Respondent’s secretary is EXHIBIT G which also declared him as the winner of the Primary Election. (See page 194 of the record of Appeal) and this formed the basis of the Appellant’s complaint to Court that the 1st Respondent did not follow the Electoral Act, 2010 and its Constitution in its nomination by way of its primary election. This complaint, Counsel submitted is within the powers and the jurisdiction of the Court and he urged this Court to so hold.
Counsel finally urged this Court to resolve this issue in favour of the Appellant and that the trial judge has jurisdiction based on the provisions of Section 87(9) of the Electoral Act, 2010 (as amended) to hear and determine complaints arising from the conduct of the 1st Respondent’s primary election.
ISSUE TWO:
WHETHER by EXHIBIT G issued by the Secretary of the 1st Respondent; the Appellant is not duly nominated as the 1st Respondent’s candidate for the Chairmanship ofArgungu Local Government Council of Kebbi State.
In arguing this issue, Counsel itemized a number of issues, which he argued are not in dispute between the parties. These issues are as follows:
(a) That the 1st Respondent conducted its Primary Election on 12th October 2019
(b) That the Appellant and the 2nd Respondent were aspirants in the Primary election
(c) That the only result of the Primary Election recognised by the 1st Respondent is contained in EXHIBIT G
(d) That the Appellant was the winner of the 1st Respondent primary election in EXHIBIT G with a highest vote of 172.
(e) That the 1st Respondent submitted the name of the 2nd Respondent who loose with a vote of 139
Counsel thereafter urged this Court to hold these facts before the trial Court as having been proved pursuant to Section 123 of the Evidence Act, 2011. SeeALHAJI MUSA KALA vs. ALHAJI BURAU POTISKUM & ANOR (1996-1999)5 SCJE page 488 at 502. According to Counsel, the law relating to the above issue is also as provided for by Section 87 (4) (d) (i) and (ii) of the Electoral Act 2010 (as amended) which provides:
“A Political party that adoptsthe system of indirect primaries for the choice of its candidates SHALL adopt the procedure outlined below:
(d) In the case of the position of a Chairmanship candidate of an Area Council, a political party shall, where it intends to sponsor candidates:
(i) hold special congresses in the area Councils, with delegates voting for each of the aspirants at the designated centres on a specific date, and
(ii) the aspirant with the highest number of votes at the end of voting SHALL be declared the winner of the primaries of the party and the aspirants name SHALL be forwarded to the Commission as the candidate of the party”
It was thereafter contended by Counsel that the 1st Respondent organized its indirect primary election in Argungu town with delegates voting and that after the conduct of the primaries the electoral committee chairman and secretary declared the Appellant as the winner with the highest votes of One Hundred and Seventy-Two (172); that the electoral committee submitted the Primary election results to the 1st Respondent with the Appellant’s name as the winner of its primary election as contained in EXHIBIT G issued by the 1stRespondent’s secretary. (See page 200 of the record of Appeal)
Learned Counsel also submitted that EXHIBIT G, which is the only result of the Primary Election accepted by the 1st Respondent enjoy the presumption of correctness and authenticity, which is binding on the 1st Respondent. See the case of LAWAL vs. A.P.C (2019) 3 NWLR (PT. 1658) at 89 ratio 3, where the apex Court pronounced on the presumption of correctness and authenticity of result of any primary election by any political party and on whom lies the burden of disputing same.
Counsel cited the case of AGHEDO vs. APENOMO (Supra) at 269 ratio 3 where the apex Court held that it is the duty of political parties to obey its constitution and guidelines in conduct of primary elections and finally urged this Court to resolve this issue in favour of the Appellant; the Appellant having proved that by EXHIBIT G (the 1st Respondent’s only primary election result) he won the primary election conducted on 12th October, 2019.
1st RESPONDENT:
ISSUE ONE:
Whether the Appellant is entitle to the relief sought in his Originating Summons?
In arguing this issue, Counsel submitted thatthe 3rd Respondent (Kebbi State Independent Electoral Commission) is the body Corporate established by the Kebbi State Independent Electoral Commission Law, 2000 and not by any other law/Act. It was contended by Counsel that the election into the office of the Local Government Chairman in Kebbl State is to be conducted by the 3rd Respondent and not by any other body or institution. It was further contended that the above mentioned Law provides the function and powers of the 3rd Respondent more particularly Section 10 as thus;
“The function of the Commission shall be: –
(c) To organize, conduct and supervise all elections or bye- elections into the elective offices of chairman and vice chairman of local Government Council’s, Councillorship of the Local Government Councils in the State and all matters pertaining to those elections as may be provided in this Law or any other enactment or law;”
According to learned Counsel, from the above mentioned provision, it is clearly stated that Kebbi State Independent Electoral Commission Law, 2000 is the applicable law that governs all matters relating to elections into the office of chairmen and vicechairman of Local Government Councils, Councillorship of the Local Government Councils in Kebbi State and not any other Law/Act.
The argument of learned Counsel is that the Appellant approached the trial Court for the interpretation of the Provision of the Electoral Act, 2010 which is a Federal enactment, which established the Independent National Electoral Commission (INEC). The submission of Counsel is that the provisions of the Electoral Act, 2010 governs only elections conducted by the Independent National Electoral Commission (INEC) and in essence, that the provisions of Sections 34 and 87 (4) (d) (i) and (ii) of the Electoral Act, 2010 are not applicable to the election in question (i.e., election into the office of the Local Government Chairman in Kebbi State).
It was also submitted that even if this Court decides to construe provisions of the Electoral Act, 2010 which the Claimant urge the Court to do, that such will not be applicable to the case at hand as Court cannot grant the reliefs sought by the Claimant. Learned Counsel contended that with regards to the provisions of Article 20 of the 1st Respondent’s Constitution, this provision hadbeen complied with by the 1st Respondent because a primary election was conducted by the 1st Respondent through its conduct of Primaries for the Argungu Local Government Chairmanship elections and which concluded that it was the 2nd Respondent that scored the majority of the lawful votes cast.
ISSUE TWO:
Whether the Appellant’s appeal filed before my lords is competent?
In arguing this issue, learned Counsel referred this Court to the provision of Section 29(1) of the Kebbi State Independent Electoral Commission Law, 2000 which provides that;
“Subject to the provisions of Sections 23 and 28 of this Law, no Court or other Tribunal shall have jurisdiction or competence to inquire into or entertain any cause matter issue or question pertaining to or arising from the contest or conduct of an election under this Law”
The submission of Counsel is that this action arose from the contest and/or conduct of an election under the provisions of the Kebbi State Independent Electoral Commission Law, 2000. In view of this position, Counsel submitted that this Court lacked the jurisdiction to entertain this Appeal and urged this Court tostrike out this Appeal.
Counsel also brought to the attention of this Court the provisions of Article 21 (c) (i) of the 1st Respondent’s Constitution, which provides that;
“Where a member is not satisfied with the decision of the adjudicatory organs of the party, he or she shall have the right to appeal within 7 days of the decision to the immediate appellate body in the party as prescribed in this Constitution.”
Learned Counsel also referred Court to the provision of Article 21 (A) (x) of the party’s Constitution, which he said also prohibits its members from filling an action against Party before a Court of law without first exhausting all avenues for redress provided for in its Constitution as thus;
“Filling an action in a Court of law against the party or any of its Officers on any matter relating to the discharge of the duties of the Party without first exhausting all avenue for redress provided for in this Constitution”
Against the backdrop of the foregoing, Counsel contended that the Appellant cannot rightly approach the Court without first satisfying the conditions of the above mentioned provisions, thisis because the Appellant after the publication of the list of the screening Committee of the 1st Respondent’s aspirants for Local Government Chairman, that he failed to comply with the provision of Article 21(c)(i) of the 1st Respondent’s Constitution. Counsel urged this Court to strike out this Appeal on this ground.
2ND RESPONDENT:
ISSUE ONE:
Whether the learned trial judge has jurisdiction or not on a complaint arising from the conduct of the 1st Respondent’s Primary Election conducted on 12th October, 2019 in Kebbi State.
In arguing this issue, Counsel submitted that from the circumstances of this case and the reliance placed on Section 87 of the Electoral Act, 2010 (as amended) by the Appellant divested the Court below of its jurisdiction to entertain the matter. It was further argued that the Electoral Act, 2010 regulates elections to the offices of the President and vice-president the Governor and Deputy Governor of a State and to the membership of the Senate, the House of Assembly of a State and does not regulate elections to the office of Local Government Council. Counsel also, he contended that the primary election envisagedunder the Electoral Act, 2010 relates to primaries conducted by the National Executive or the National working committee of a political party and does not relate to that of Local Government Councils. Counsel cited the case of EZE vs. P.D.P (2019) 1 NWLR (PT. 1652).
Learned Counsel further argued that Section 29(1) of the Kebbi State Independent Electoral Law, 2000 clearly ousted the jurisdiction of any Court or Tribunal other than Election Tribunals in any matter pertaining to the conduct of Elections to Local Government Councils in Kebbi State.
In the Counter Affidavit filed by the 2nd Respondent in opposition of the grant of the Appellant’s Originating Summons, Counsel told Court that there were two annexure marked as Exhibits A and B. (See page 51-63 of the record of appeal). He contended that before a person is said to be qualified to stand for primaries of the 1st Respondent, he must be screened and cleared and that where he is not so cleared and he manoeuvres his way into the contest, he is like a person who sat for an examination he did not apply for and that it does not matter even if he is said to have scored 100% as he will still not be issued with any certificate.
Counsel referred to page 55 of the record and submitted that it is clear that the Appellant was not cleared to stand for the election conducted by the 3rd Respondent on the 26th October, 2019. According to Counsel, the screening took place on the 9th October, 2019 and that the Appellant failed to challenge why he was not cleared. Learned Counsel told the Court that the circumstances leading to the participation of the Appellant in the primaries of 12th October, 2019 are well captured at pages 52-53 of the record and pages 61-63. He further argued that since screening and clearing of candidates is a condition precedent to the conduct of primary election that the participation of the Appellant in the Elections without clearance fails to clothe his participation in the Elections with any recognition in law. Counsel urged this Court to resolve this issue against the Appellant.
ISSUE TWO:
Whether by Exhibit G issued by the secretary of the 1st Respondent, the Appellant is not duly nominated as the 1st Respondent’s candidate for the chairmanship of Argungu Local Government Council of Kebbi State.
In arguingthis issue, Counsel submitted that the Appellant as claimant before the Court below failed to establish that he (Appellant) was duly nominated as the 1st Respondent’s candidate for the Chairmanship election of Argungu Local Government Council of Kebbi State. The contention of Counsel is that in civil proceedings, issues joined between parties are decided on the balance of probabilities in the imaginary scale upon preponderance of evidence and that to prove a matter, the Court has to look at the relative strength of the case of the parties and place them on an imaginary scale to see which side the scale tilts. Counsel cited the case of DURAKU vs. NWOKE (2016) All FWLR (PT. 815) 351 at 402 and DAUDA vs. ACCESS BANK PLC (2016) All FWLR (pt831) 1489 at 1521.
Against the background of this position, Counsel argued that the Appellant relied on Exhibit G, to show that he scored highest in the primaries but was however, silent on a number of salient issues. Counsel argued that the usual thing is that before any primary election, each party has to conduct screening of candidates and that it is only candidates that are screened and cleared that will beeligible to participate in the primary election so much so that an un-cleared candidate who happens to manoeuvre his way to contest cannot win the primaries even if he scores highest votes.
Counsel contended that it is the position of the 2nd Respondent following the above that preparatory to the 1st Respondent’s primary election, interested candidates were screened and that he and one other were cleared to participate in the primaries while the Appellant and two others were not. Counsel relied on the unchallenged depositions at paragraphs 4 and 5 of the 2nd Respondent’s counter affidavit (page 52 of the record of appeal and Exhibit ‘A’ attached thereto (page 55 of the record). He argued that from Exhibit ‘A’, it is clear that the screening took place on 9th October, 2019 and that since the Appellant was not cleared, he was also not qualified to contest in the primary election of 12th October, 2019. Counsel urged this Court to resolve issue number 2 against the Appellant.
ISSUE THREE:
Whether the Electoral Act 2010 as amended is applicable to the Kebbi State Local Government conducted by Kebbi StateIndependent Electoral Commission under the Kebbi State Independent Electoral Commission Law, 2000. (Grounds 3, 4, 5, 6 and 7)
In arguing this issue, Counsel submitted that based on Section 29(1) of the Kebbi State Independent Electoral Commission Law, 2000 as quoted earlier, this Court lacks the competence and jurisdiction to hear and determine this Appeal and that the words: “Court” or “Tribunal” appearing in the Section includes this Court. According to Counsel, this appeal is a cause, matter, issue or question, which relates to the conduct of an election under the Kebbi State Independent Electoral Law, 2000. He argued in addition, that the Section ousted any Court or Tribunal from entertaining any cause, matter, issue or question pertaining to or flowing from the contest or conduct of election under the law.
The further argument of Counsel is that once the jurisdiction of a Court is ousted, there is no room for circumlocution with a view to clothing the Court with jurisdiction as parties cannot confer jurisdiction on a Court. He contended that Jurisdiction is conferred by law. See the case of AKINGBOLA vs. FRN (2015) ALLFWLR (PT. 789) 1152 at 1173-1174, where this Court relying on the Supreme Court case ofONWUDIWE vs. FRN (2006) ALL FWLR (PT. 319) 774 held inter alia,
“A party cannot beg or bargain jurisdiction into a matter before a Court of law, so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case… In the determination of a jurisdiction of Court the enabling law vesting the jurisdiction has to be taken in the light of the relief or reliefs sought…”
Finally, Counsel urged this Court to resolve this issue in favour of the 2nd Respondent.
3rd RESPONDENT:
ISSUE ONE:
Whether the trial Court had jurisdiction to entertain the complaint of the Appellant? (Grounds 3, 4 and 5).
In arguing this issue, learned Counsel submitted that it is only an Aspirant that has the locus standi to institute an action against the conduct of the primaries that can do so and therefore, that the complaint of the Appellant in the instant Appeal cannot by any stretch of legal imagination be elevated to fall within the intendment ofSection 87 (9) of the Electoral Act, 2010 (as amended). Counsel cited that the case of OGARA vs. ASADU & ORS (2014) LPELR-22862 (CA), PAGES 84-85 PARAS D-B. According to Counsel, the subject of this Appeal relates majorly to the issue of nomination and sponsorship of Candidates in an election and contends that it is the exclusive duty of a Political Party, the 1st Respondent herein to nominate Candidates for an election. See DINGYADI & ANOR vs. INEC & ORS (2011) LPELR-950 (SC), PAGE 41, PARAS A-D; JIMOH vs. AYANDOYE & ORS. (2012) LPELR-8006 (CA), PAGE, 45, PARAS. E-G, where the Court held that nomination of candidate for an election is within the absolute prerogative of the political party concerned.
According to learned Counsel, the cases of EZE vs. PDP (SUPRA); AGHEDO vs. ADENOMO (SUPRA) and BOKO vs. NUNGWA (SUPRA) cited by the Appellant are clearly distinguishable from the fact of the instant appeal and thus; not applicable. The argument of Counsel is that the complaint of the Appellant would have been excusable if the Appellant had contended that he was cleared to contest the primaries and was duly nominated by the 1st Respondent, butwas wrongfully substituted with the 2nd Respondent by the 3rd Respondent. In which case, the Appellant would have shown that his name and nomination Form was duly submitted to the 3rd Respondent. Counsel said that this is not the situation in the case at hand and that the Appellant was not nominated at all and therefore, lacked the legal right to insist that the 1st Respondent must nominate him. See PEOPLE’S DEMOCRATIC PARTY & ANOR vs. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC), where it was held that a member of a party has no legal right to be nominated by his party.
It was also argued that by the combined effect of Article 21, Paragraphs A (x) and D (v) of the All Progressives Congress Constitution, (October, 2014 as Amended), (herein referred to as the Constitution of the 1st Respondent), the Appellant, once again lacks the locus standi to maintain the suit leading to this appeal. Counsel contended that the foregoing Article of the 1st Respondent’s Constitution made it an offence for a member to seek legal redress in a Court against the party without first exhausting all avenues for redress afforded by the Constitution, and that thepunishment for the offence is automatic expulsion from the party.
Learned Counsel also contended that in the instant appeal, the trial Court glossed over the issue of the locus standi of the Appellant to maintain the suit in view of Article 21, Paragraph 0 (v) of the Constitution of the 1st Respondent properly raised and canvassed before it. The argument of Counsel is that this has breached the 3rd Respondent’s right to fair hearing and occasioned a miscarriage of justice. Counsel urged this Court in the Circumstances, to invoke its powers under the provisions of Section 16 of the Court of Appeal Act, to assume the complete jurisdiction of the trial Court and determine the said issue raised and canvassed. See ADO IBRAHIM & CO. LTD vs. BENDEL CEMENT CO. LTD (2007) LPELR-188 (SC), on the propriety of an Appellate Court assuming complete jurisdiction of a trial Court.
It was also submitted by Counsel that the contention of the Appellant in Paragraphs 1.15 – 1.29 of the Appellant’s Brief of Argument, that the trial Court has the jurisdiction to entertain the case giving rise to this Appeal is a clear misconception of fact and law. Counsel thereforeurged this Court to invoke its inherent powers under Section 16 of the Court of Appeal Act, and strike out Suit No. KB/HC/6CV /2019 determined by the trial Court for want of competence and jurisdiction to determine same. He urged this Court to resolve issue one in favour of the 3rd Respondent and against the Appellant.
ISSUE TWO:
Whether having regards to the facts and circumstances of this case, the Appellant is entitled to the declaratory Reliefs sought against the 3rd Respondent? (Grounds 1, 2 and 7).
The contention of Counsel in arguing this issue, is that the declaratory reliefs sought by the Appellant in the circumstances of this Appeal are not supported by cogent and unassailable material evidence and thus; not grantable. He said that in an action for declaration of right, it is the duty of the claimant to succeed on the strength of his case and not on the weakness of the Defendant’s case and that this is so even when the Claimant admits the claim. See MOHAMMED vs. WAMMAKO (2017) LPELR-42667 (SC); OGUNLEYE vs. AINA & ORS. (2010) LPELR-4694 (CA) PAGE 25 PARAS E-G.
The contention of Counsel is that in this case at hand, theAppellant did not show with credible evidence that he is indeed entitled to the declaration of right sought; that there is no evidence that the Appellant was duly selected and nominated by the 1st Respondent for the Chairmanship Election held in Argungu Local Government. On the other hand, Counsel contended that the 3rd Respondent filed a Counter-Affidavit and Written Address contained at Pages 77-128 of the Record of Appeal, wherein it produced Certified True Copies of the Nomination Forms of the 2nd Respondent. Against this position, Counsel queried what then become of the status and effect of Certified True Copies of public documents? Counsel cited the case of OLADIMEJI vs. AJAYI (2012) LPELR-20408 (CA), and contended that the Court followed the decision in the case of NTEOGWUILE vs. OTUO (2001) 16 NWLR (PT. 738) Page 58 at 91 which presumed as genuine and correct, and properly relied on a Certified True Copy of an intelligence Report in the determination of the truth of the information contained therein. Counsel also cited the case of UZAMERE vs. URHOGHIDE & ORS (2009) LPLER-5082 (CA), PAGES 20-21, PARA B, where the Court interpreted the provision ofSection 114 of the Evidence Act, 1990, which is in pari-materia with Section 105 of the Evidence Act, 2011, and stated the law on the significance of the production of Certified True Copy of public document.
Arising from the foregoing, Counsel submitted that the significance and effect of Certified True Copy of a public document cannot be overemphasised and taking for granted in the circumstances of this Appeal. He further submitted that it is the totality of the evidence led, which are material to the case that the Court considers and that this ultimately tilts the scale of balance in favour of the party that adduced it, based on the preponderance of evidence. See IKYEREVE IORDYE vs. IHYAMBE (2000) 15 NWLR (PT. 692) 675,IN RE: OTUEDON (1995) 4 NWLR (PT. 392) 655. According to Counsel, evidence adduced by the Appellant when interfaced with that of the 3rd Respondent will show beyond conjecture that the declaratory reliefs sought by the Appellant are not grantable. Counsel urged the Court to resolve issue two in favour of the 3rd Respondent and against the Appellant.
ISSUE THREE:
Whether Reliefs 5, 6 and 7 sought by the Appellant are not grantable? (Ground 6)The submission of Counsel is that Reliefs 5, 6 and 7 sought by the Appellant; which seek to restraint or stop the 3rd Respondent from receiving the nomination of the 2nd Respondent as Candidate, directing the 3rd Respondent to recognize the Appellant as Candidate and suspending the 3rd Respondent’s Local Government Council General Election held in Argungu Local Government Area on the 26th of October, 2019 are not grantable in view of the fact that; whereas reliefs 5 and 7 are in relation to what has already happened, the name of the Appellant was never submitted to the 3rd Respondent to warrant his recognition or otherwise.
Usually, Counsel further submitted that the issues relating to the submission of names of candidates for an election and acceptance of same by the electoral umpire are matters which are transacted in preparation to the actual and main election. He added that the nomination of the 2nd Respondent was received by the 3rd Respondent on the 16th of October, 2019, while the action seeking to stop the 3rd Respondent from receiving the nomination was instituted on the 19th of October, 2019. Also, Counsel arguedthat the election sought to be suspended held on the 19th of October, 2019. See Pages 8, 77 and 80 of the Record of Appeal. According to Counsel, the purpose which the reliefs seek to serve has been overtaken by event of the occurrence of the incidence sought to be restrained or stopped. Counsel contended that the law is trite that a Court of law cannot restraint a completed act. See the cases of OTU & ANOR vs. ANI & ORS (2013) LPELR-21405 (CA), PAGES 74-75, PARAS C-A; LEADMAC PROPERTY & DEVELOPMENT LIMITED & ANOR vs. CHEVRON NIGERIA CLOSE PFA LIMITED (2016) LPELR-41408 (CA), PAGE 34, PARAS E-F; ONYEKWELU & ORS VS. THE CHIEF REGISTRAR KANO STATE HIGH COURT & ORS. (2014) LPELR-23626 (CA), PAGE 17, PARAS. A-G.
It was also contended that having shown that the Appellant’s name was never submitted to the 3rd Respondent by anybody and the act sought to be stopped had already happened, the trial Court was on a proper footing when it refused to grant the relief sought by the Appellant Claimant.
Learned Counsel equally referred this Court to paragraph 2.27 of the Appellant Brief of Argument, where he urged the Court is urged todirect the 3rd Respondent to withdraw the certificate of return from the 2nd Respondent and issue same to the Appellant. The submission of Counsel is that such request is not grantable in view of the fact that the Appellant has not been shown to have participated in all the stages of the Local Government Election held in Argungu Local Government Area on the 26th of October, 2019. Counsel referred to the provisions of Section 285 (13) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, which state thus; “An election tribunal or Court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election”. Counsel therefore urged this Court to hold as correct the above finding of the trial Court and further urged this Court resolve issue three in favour of the 3rd Respondent and against the Appellant.
RESOLUTION OF APPEAL
The facts of this case have it that the Appellant, the 2nd Respondent and three others, all members of the 1st Respondent signified their intentions of vying for the post of Chairman of Argungu Local Government Council ofKebbi State of Nigeria, and that in line with the 1st Respondent’s guidelines all shortlisted candidates were required to be screened and cleared before contesting in the primaries required to produce the flag bearer of the party in the scheduled main Local Government Elections. All the candidates were screened. The 2nd Respondent and one other were subsequently cleared while the Appellant and two others were not cleared.
Apparently, the Appellant did not challenge his non-clearance as a candidate to contest in the party primaries prescribed by the party Constitution and/or guidelines to the election. Rather, on the day of the primary election, Appellant was said to have led his supporters to the venue and threatened violence. He was said to have created a tensed atmosphere to the extent that the Committee charged with the responsibility of conducting the primaries in conjunction with security personnel consulted with the party’s State Headquarters, who then resolved to allow all the aspirants (both cleared and un-cleared) to participate in the primary election, but that the votes of the candidates not cleared by the party should not count orbe considered.
As a result of the foregoing, the election went on peacefully and successfully. Of the two cleared candidates, the 2nd Respondent emerged winner, having scored the highest votes. His name was promptly submitted to the 3rd Respondent by the 1st Respondent as its candidate for the main Local Government Election. This was what was said to have led the Appellant in filing its suit at the Court below. Rather than rely on the provisions of the Kebbi State Independent Electoral Law, 2000, the Appellant relied on the provisions of the Electoral Act, 2010 as amended, not minding the fact that the election in question was a Local Government Elections. However, the question to immediately address at this stage is whether the Electoral Act, 2010 as amended is applicable to the conduct of Local Government Elections, not being one of those Elections, which the Independent National Electoral Commission (INEC) is charged with conducting.
It would be recalled that this issue was exhaustively dealt with whilst ruling on the Notices of Preliminary Objection of parties in the preceding sections of this judgment. However, at the risk of soundingrepetitious, this Court relied on the decisions of this Court in the cases of ACN vs. RIVERS INEC & ANOR (Supra) and APC vs. PLATEAU STATE INDEPENDENT ELECTORAL COMMISSION (Supra) in deciding that the Electoral Act, 2010 does not apply to the conduct of Local Government Elections. It will be instructive to note that bySection 25(1) and (2) and Part VI of the Electoral Act, 2010 as amended, provisions are copiously made for the conduct of Elections into Area Councils, but not so for Local Government Councils.
In arguing the Appellant’s issue one for determination of this Appeal, dealing with the question of the jurisdiction of the Court below in entertaining the matter, learned Appellant’s Counsel made a heavy weather of the issue insisting that the Court below had the requisite vires in entertaining the matter.
It is a notorious fact that what determines the issue of jurisdiction is the originating process and in the instant case, being one commenced by an Originating Summons, are the Affidavits in support, from which the Court will decipher whether the matter is within its jurisdictional province or not. A careful perusal of the complaint of the Appellant as encapsulated in his supporting Affidavit of the Originating Summons is simply that having contested the 1st Respondent’s Primary Election held on the 12th of October, 2019 for purposes of selecting a Candidate to be nominated for the 2019 Local Government Councils Election held on the 26th of October, 2019, and in the process scoring the highest votes, that the 1stRespondent ought to have nominated him as its Chairmanship Candidate in the said election.
It would be recalled that while the Appellant held tightly to his claim of scoring the highest number of votes at the primaries but was not nominated, the 1st Respondent went ahead and nominated the 2nd Respondent to the 3rd Respondent as its only Candidate. The reason adopted by the 1st Respondent, whose power it is to conduct Primary Elections and nominate Candidates, was that the Appellant was not cleared to contest the Primary Election held on the 12th of October, 2019. See pages 33-50 particularly 37 of the Record of Appeal.
By Paragraph 14 of the 1st Respondent’s Guidelines, i.e., the All Progressive Congress Guidelines for Primary Election, 2014, made pursuant to Article 20 (v) of the All Progressive Congress Constitution, (October 2014 as amended), clearance of a Candidate is a condition precedent for qualification and participation in the Primaries of the party. As it is clear from the record, at page 37, serial No.1 (iii) it is not in doubt that the Appellant was not cleared prior to the Primaries of the 12th day of October, 2019 and thus; notqualified to be nominated even if it is shown that he won the Primaries in question as he is in law deemed not to be an Aspirant in the Primaries.
Case law is replete with the fact that it is only an Aspirant who has fulfilled the condition precedent for the proper participation in the primaries that would be clothed with the requisite locus standi to sue on the Primaries and case law is also replete with the fact that it is only an Aspirant that has the necessary locus standi that can institute an action against the conduct of the primaries. Against the backdrop of the foregoing, one can therefore safely conclude that the complaint of the Appellant in the instant Appeal cannot by any stretch of imagination be elevated to fall within the intendment of Section 87 (9) of the Electoral Act, 2010 (as amended) assuming that it is a provision of law that is applicable to this case. See the case of OGARA vs. ASADU & ORS (2014) LPELR-22862 (CA), PAGES 84-85, PARAS D-B where this Court per MSHELIA, JCA, relying on the Supreme Court cases of PDP vs. SYLVA AND EMENIKE vs. PDP, had this to say on the subject:
“The appellant having not participated ata Primary Election conducted by the National Executive of his party has no locus standi to initiate any proceedings challenging the conduct of such election. See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85. In IkechiEmenike v. People Democratic Party &Ors. (2012) 12 NWLR (Pt.1315) pg. 556. His Lordship Fabiyi, JSC while pronouncing on the scope of Section 87 (9) of the Electoral Act 2010 (as amended) stated thus: From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a Court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the Political Party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specific provisions of the Electoral Act/Electoral Guidelines.”
It is important, perhaps to state at this stage that what is actually at stake in this matter is the perennial question of the nomination of parties for elective offices and also to state that whenever it is pitched against the internal workings or the affairs of a political party, as in theinstant case, the locus classic in the jurisprudence of such matters is, and remains the case of PHILIPS ONUOHA vs. OKAFOR (1983) LPELR – 2705. The principle enunciated in that case is that the issue of nomination/substitution exercise of a political party is clearly an intra-party matter and that no justiciable dispute or controversy can be presented to a Court of law for its adjudication, since it is clearly a political and not a legal question. It is generally, therefore, not within the province and jurisdiction of the Courts to interfere with matters, which impinge on the domestic affairs of political parties. See DALHATU vs. TURAKI (2003) 15 NWLR (PT. 843) 310; UZODINMA vs. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 30; UMEH vs. EJIKE (2013) LPELR – 23506; PDP vs. SYLVA (2012) LPELR – 7814 and a host of other cases.
The Court below, in the instant case, in deciding that it had the jurisdiction to entertain the Appellant’s claim as Claimant, the Court first had to eulogize the inclusion of Section 87(9) of the Electoral Act, 2010 (as Amended) as a determining factor in the party nominations/internal affairs conundrum of theNigerian political equation completely oblivious of the fact that this being a matter from the Local Government Council elections does not in all seriousness change the picture on the canvass as what is usually constant where there are political questions to be answered is that the Court of law has very little role, if at all any to play in these matters.
In DINGYADI & ANOR vs. INEC & ORS. (2011) LPELR-950 (SC), PAGE 41, PARAS A-D, it was held thus;
“The issue of nomination of candidate is governed by the rules governing preliminaries as to an election. Preliminary rules are those rules which determine intra-party resolutions and nominations to elective offices. The relationship of nomination is between the political party, its members and the electoral body. The intention of the law is to vest nomination of candidates in the membership of a political party and further make nomination a preliminary issue for any person wishing to contest. Nomination of a candidate is exclusively the responsibility of his political party under the Electoral Act 2006.”
This Court is clearly in agreement with learned Counsel for the 3rdRespondent who rightly contended that the cases of EZE vs. PDP (SUPRA); AGHEDO vs. ADENOMO (SUPRA) AND BOKO vs. NUNGWA (SUPRA) cited by the Appellant are distinguishable from the facts of the instant appeal and thus; not applicable. The position remains that the complaint of the Appellant would have been excusable if the Appellant had contended that he was cleared to contest the primaries and was duly nominated by the 1st Respondent, but was wrongfully substituted with the 2nd Respondent by the 3rd Respondent. In which case, the Appellant would have shown that his name and nomination form was duly submitted to the 3rd Respondent; but this is not the situation in this case. Here was a situation in which the Appellant was not nominated at all and therefore, lacked the legal right to insist that the 1st Respondent must nominate him. See the case of PEOPLE’S DEMOCRATIC PARTY & ANOR vs. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC), where it was held that a member of a party has no legal right to be nominated by his party. At page 35, the Apex Court per RHODES-VIVOUR, JSC has this to say on the subject;
“The right to nominate or sponsor acandidate by a political party is a domestic right of the party. A political matter within the sole discretion of the party. A member of the party has no legal right to be nominated/sponsored by his party. A Court thus has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party.”
Against the backdrop of the foregoing, it becomes rather glaring that a member of a political party can neither impose himself on his party nor physically or through litigation as is been suggested by the Appellant in the circumstances of this appeal, insist upon nominated. It is on this score that this Court, once again state that the Court below had no jurisdiction in entertaining the matter, this being a purely intra-party dispute which the Court below lacked the requisite jurisdiction to entertain.
As it has to do with the Appellant’s treatment of Article 21, Paragraphs A (x) and D (v); Paragraph B (vi) (c); ParagraphC of the All Progressives Congress Constitution, (October, 2014 as Amended), herein referred to (as the Constitution of the 1st Respondent), the settled position of the law is that the Appellant lacks the locus standi to maintain the suit leading to this appeal. The failure of the Appellant to take advantage of the said Article 21 and the various paragraphs crafted therein to seek a redress and /or make complaints to the adjudicatory body and the appeal panels established under the 1st Respondent’s Constitution before filing his action at the Court below is fatal to his legal standing or capacity to maintain the action, and the Court below lacked the jurisdiction to entertain same.
The Appellant’s issue two deals with the question of presumption of regularity of an Exhibit G said to have been issued by the Secretary of the 1st Respondent; which Counsel has argued that it shows that the Appellant was duly nominated as the 1st Respondent’s candidate for the Chairmanship of Argungu Local Government Council of Kebbi State. However, upon a close, careful and calm examination of the said Exhibit ‘G’, it is discovered that it is the samedocument as Exhibit ‘B’, attached to the Originating Summons of the Appellant. (See page 18 of the record.)
However, in closely examining Exhibit ‘B’ at page 18 is of the record, it is discovered that against the names of: Hon. Ibrahim A. Lolo and TambariBala who were the Chairman and Secretary respectively of the Election Committee, there are no signatures appended; but on close examination of Exhibit ‘G’ at page 200 of the record, signatures have suddenly appeared against the two names. Here is a situation in which, the same document attached as Exhibit ‘B’ in the same cause of action at page 18 does not have signatures attached to the names of the purported makers, and also a situation where the same document pasted at page 200 of the record, as Exhibit ‘G’ now has signatures of the makers against the names of the makers. This, no doubt raises a number of unanswered questions more especially where it is observed that the two seemingly conflicting documents were presented and relied upon by the Appellant who now seeks to accord one of the documents a status of regularity over the other. In theabsence of any compelling and cogent explanations detailing why one of the documents both of whom are relied upon by the Appellant ostensibly made at the same time carries the signatures of the makers while the other does not, makes this Court unable to accord any presumption of regularity to either of the documents.
Arising from the foregoing, this Appeal is without merit and it is accordingly dismissed with cost of N100, 000.00 against the Appellant in favour of the 2nd Respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in advance the lead judgment of my learned brother Oho, JCA. I fully agree with his reasonings and conclusions. For want of better words, I adopt them as mine to also dismiss this appeal for totally lacking in merit. I abide by all the consequential orders in the lead judgment, including the order for costs.
ABUBAKAR MAHMUD TALBA J.C.A.: I read in draft the lead judgment just delivered by my learned brother Frederick O. Oho, JCA who dealt exhaustively with the issues raised in this appeal as formulated by the parties. I am in totalagreement with the reasoning and conclusion of my learned brother, which I adopt as mine. Notwithstanding the above I make few remarks and comment on the appeal.
On the issue of jurisdiction, it is a threshold matter. It is the bedrock Of any judicial proceedings. It is the legal capacity, power or authority to adjudicate vested in a Court by the Constitution or statute which created it.
The absence of jurisdiction or any defect therein renders the entire proceedings a nullity no matter how well conducted. See UTIH vs ONOYIVWE (1991) 1 NWLR (Pt 166) 166; MADUKOLU vs NKEMDILIM (1962) 2 SCWLR 341; SKEN CONSULT (NIG.) LTD. vs UKEY (1981) 1 SC 6.
Premised on this settled principle of law the issue of jurisdiction can be raised at any time, even for the first time at the apex Court, even though it is not an absolute right to do in some instances. Like in the instant case the issue of jurisdiction having been settled at the Court below, it can only be entertained on appeal by way of an appeal or cross-appeal. And where no such anneal or cross-appeal is filed the Appellate Court will lack the competence to entertain the issue. But in every generalrule there is an exception. The exception here is where the issue of jurisdiction is raised not as a substantive issue for determination but by way of preliminary objection. In this instant appeal the issue of jurisdiction was raised by way of preliminary objection and therefore this Court can entertain it.
On the issue of non-applicability of the Electoral Act, 2010 to the instant case, this being an Election into the Local Government Council of Kebbi State of Nigeria and not one of the elections to be conducted by the Independent National Electoral Commission (INEC), has been settled by this Court in the landmark cases of ACN vs RIVER STATE INEC & ORS (2013) LPELR 21169 and APC vs PLATEAU STATE INDEPENDENT ELECTORAL COMMISSION (2018) LPELR 44569. The dictums of FASANMI JCA and JAURO JCA have been ably captured by my learned brother and therefore it 2010 (as amended) and part iv and vi,Section 25 (1) and (2) expressly refereed to Area Council without reference to Local Government Councils. It is trite that statues are to be given their ordinary and simple grammatical meaning and connotation when they are interpreted especially where their provisionsas in this case, are straight and unambiguous. It is without any iota of doubt that Sections 87 and 34 of the Electoral Act, 2010 (as amended) does not apply to the subject matter of this case, this being a Local Government Election which is within the exclusive preserve of the Kebbi State Independent Election Commission to conduct as against INEC. The claim of the Appellant as claimant was predicated on the wrong law and therefore the preliminary objection of the 2nd Respondent is meritorious and it succeeds. In consequence thereof this Court lacks the jurisdiction to entertain this matter and same is struck out.
As for the substantive appeal I wish to comment on Paragraph 14 of the 1st Respondent’s Guidelines for Primary Election, 2014, made pursuant to Article 20 (v) of the All Progressives Congress Constitution (October 2014 as amended).
By that provision clearance of a candidate is a condition precedent for qualification and participation in the primaries of the party. It is crystal clear from the record at page 37, serial No. the 12th day October, 2019. And therefore he is not qualified to be nominated for the primaries. Even though theAppellant claimed to have won the primaries in question, he is in law deemed not to be an Aspirant in the primaries. It is trite that only an Aspirant that has the necessary locus standi to institute an action against the conduct of the primaries. The Appellant in this case has no locus standi to institute an action against the conduct of the primaries in question. The Appellant is a busy- body, a meddlesome interloper. See PDP VS SYLVA AND EMENIKE VS PDP.
The lower Court lacks the jurisdiction to entertain the suit hence the Appellant lack the locus standi to institute same. On this point alone hold that the appeal is without merit and it is accordingly dismissed. I agree with my learned brother on the order relating to cost in the leading judgment.
Appearances:
HUSSAINI ZAKARIYAU, ESQ.For Appellant(s)
1. SANUSI SAMAILA, ESQ. for the 1st Respondent
2. CHIEF MAGNUS IHEJIRIKA for the 2nd Respondent
3. LAGALO DAN LAGALO, ESQ. for the 3rd RespondentFor Respondent(s)
