BABAYEMI v. PDP & ORS
(2022)LCN/16335(CA)
In the Court of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, July 20, 2022
CA/AK/98/2022
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
PRINCE OYEDOTUN BABAYEMI APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. SENATOR ADEMOLA JACKSON NURUDEEN ADELEKE RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF LOCUS STANDI AND NON-DISCLOSURE OF CAUSE OF ACTION ARE VARIANTS OF JURISDICTION
I am of the settled view that the law recognises the issue of locus standi as well as non-disclosure of cause of action and or reasonable cause of action, as variants of jurisdiction. Hence the position of the law is that when the issue of locus standi, and or cause of action are raised as threshold issues, what the Court is bound to look at are the originating processes of the party that filed the action. See the cases of ODIMEGWA V. IBEZIM (2019) LPELR-46939(SC), ADENUGA V. ODUMERU (2003) LPELR-24860(SC) and OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC) amongst many others. PER LOKULO-SODIPE, J.C.A.
The law is well settled that where a Court does not have jurisdiction over the principal claims, it cannot adjudicate over the suit. See Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) p. 517.
For all intents and purposes and on the totality of the said issue in question, I hold the firm view that the learned justices of the lower Court were on a solid ground, when they held that the trial learned judge was right in her judgment, that the appellant’s main claims were not within the purview of the provisions of Section 87(9) of the Electoral Act.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 18/5/2022 by the Federal High Court, Osogbo Judicial Division presided over by N. Ayo-Emmanuel, J. (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).
By an originating summons dated 14/3/2022 and filed on 18/3/2022 the Appellant as Plaintiff prayed the lower Court for a determination of the underlisted questions against the Defendants now Respondents. The questions are: –
“1. Whether in view of the provisions of Sections (1) (sic) and 221 and 287(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 84 of the Electoral Act, 2022 and the doctrine of Rule of Law, the Defendants can flagrantly disobey and refuse to follow lawful Orders and judgments of Courts made by the High Court of Justice of Osun State in Suit Nos: HIK/25/2022 between: Honourable Olasoji Adagunodo v. PDP & 3 Ors made on 3rd of November, 2020 and judgment in the same suit made by Honourable Justice S.O. Falola J., on 9th of November, 2020 and the orders and judgment made in Suit No: HIF/36/2021 and in Suit No: HIJ/6/2022 between: Olasoji Adagunodo and 30 Ors V PDP & Anor made on 22nd of November, 2021 and in Suit No: HIJ/6/2022 between: Adedokun Ademola and 30 Ors v PDP & Anor and mandatory order injunction made in the same suit on the 10th of March, 2022, by Honourable Justice (Dr.) A.A. Aderibigbe J. of Osun State Judiciary, sitting at Ile-Ife and Ijebu-Jesha respectively.
2. Whether the 1st and 2nd Defendants could go ahead contrary to these judgments and orders of Court to purport to hold and/or conduct primary elections for the selection of its governorship candidate on the 8th of March 2022, by using any delegate list order (sic) than the delegates that emerged from the delegate elections conducted on the 25th of September, 2021, by Hon. Olasoji Adagunodo Executives of the 1st Defendant.
3. Whether the 1st and 2nd Defendants could exercise any discretion under the provisions of Section 84 of the Electoral Act 2022 or exercise any powers pursuant to the same Section of the Electoral Act in purporting to organize a primary election for the election of the governorship candidate of the 1st Defendant in violation of extant, valid, lawful and constitutional orders contained in the judgments and rulings of the Osun State High Court in Suit Nos: HIK/25/2020, HIF/36/2021 and HIJ/6/2022, which were competently handed down by Honourable Justice S.O. Falola and Honourable Justice (Dr.) A.A. Aderibigbe.
4. Whether the 2nd Defendant in purported exercise of its statutory powers and/or duties conferred by the provisions of Section 84(1) of the Electoral Act, 2022, can go ahead to monitor primary elections held and/or conducted by a faction of the 1st Defendant in Osun State, that has been held to be illegal by valid judgment and orders of Courts of competent jurisdiction in suits Nos; HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.
5. Whether the 2nd Defendant purporting to exercise its powers and/or duties under the provisions of Section 84(1) of Electoral Act, 2022, can refuse, neglect and/or fail to abide by lawful and legal orders of Courts of competent jurisdiction to monitor the party primaries of the 1st Defendant conducted on the 8th of March, 2022, for the election of Osun State Governorship candidate for the party as ordered and sanctioned in Suit Nos; HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively and turn around to want to rely on its disobedience and take advantage of same as the ground for non-recognition of the party primaries conducted on the same 8th of March, 2022 at WOCDIF Centre Osogbo, where the Plaintiff was duly elected as the Governorship candidate of the 1st Defendant of the Osun State Governorship election in July, 2022.
6. Whether all the Defendants acting jointly and/or severally while in contravention and disobedience of lawful and extant judgments and orders of competent Courts as handed down in Suit Nos; HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, can go ahead to hold party primaries on the 8th of March, 2022, where all delegates that the Courts in the above suits had recognized were disallowed and whether this was not clearly against the provisions of the Constitution, Electoral Act and Rule of Law.
7. Whether the Plaintiff who was duly elected at the party primary held on 8th of March, 2022, in Osogbo as the candidate of the 1st Defendant for the Osun State Governorship election in July, 2022, ought not to be so recognized, approved and accepted having regard to the judgment and orders in Suit Nos; HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.”
The reliefs sought by the Appellant as set out on the originating summons he filed before the lower Court upon the determination of the questions re-produced above are:-
“1. A declaration that having regard to the provisions of Sections 1(1) and 3, 221 and 287(1) of the Constitution of the Republic of Nigeria 1999 (as amended) and Section 84 of the Electoral Act, 2022, and the doctrine of rule of law, the Defendants jointly and/or severally cannot and should not be allowed to disobey judgments and lawful orders of Courts of competent jurisdiction as evidenced in Suit Nos; HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.
2. A declaration that the 1st and 2nd Defendants given the existence of judgments and orders in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022, respectively, are obligated under the Constitution and the law recognize (sic), give effect to and sanction the primary election conducted on the 8th of March, 2022, in WOCDIF Centre in Osogbo, Osun State in which the plaintiff was overwhelmingly elected as the Governorship candidate of the 1st Defendant for the Osun State Governorship election scheduled for July, 2022.
3. A declaration that the purported primary election held on 8th of March, 2022, at Osogbo Stadium, Osun State, where the 3rd Defendant purportedly emerged as the candidate of the 1st Defendant for the Governorship election in July, 2022, having been held and conducted in flagrant violation of lawful, extant and binding judgments and orders delivered on diverse dates is illegal, unconstitutional and a willful affront to the rule of law and therefore null and void.
4. A declaration that the Certificate of Return purportedly issued by the 2nd Defendant to the 3rd Defendant which was a product of their flagrant disobedience to lawful orders and judgment in Suit No: Nos: (sic) HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, is null and void and liable to be set aside.
5. A declaration that the Plaintiff who was duly elected by the primary election conducted on 8th of March, 2022, at WOCDIF Centre, Osogbo, Osun State, where he purportedly emerged as the Governorship candidate of the 1st Defendant for the Governorship election of July, 2022, having been carried out and conducted in accordance with valid judgments and orders in Suit Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, is valid, lawful and constitutional.
6. An order nullifying the primary election purportedly conducted on the 8th of March, 2022, at the Osogbo Stadium, Osun State, where the 3rd Defendant purportedly emerged as the Governorship candidate of the 1st Defendant in the Governorship election slated for July, 2022.
7. An order directing the 1st Defendant to withdraw and cancel the Certificate of Return it issued to the 3rd Defendant and issue and give to the Plaintiff a Certificate of return in his stead.
8. Injunction restraining the 2nd Defendant from accepting, recognizing and/or accord (sic) any right to the 3rd Defendant as the duly elected Governorship candidate of the 1st Defendant for the Osun State Governorship election.
9. An order directing the 2nd Defendant to recognize, accept and deal with the Plaintiff as the duly elected Governorship candidate of the 1st Defendant for the Osun State Governorship election scheduled for July, 2022 or any other time.
10. And for such further order or orders as the Honourable Court may find due under the law and equity in favour of the plaintiff.”
The originating summons was accompanied by a 28-paragraph affidavit and a written address dated 14/3/2022 and filed on 18/3/2022. The following Exhibits were annexed to the said affidavit: (i) Exhibit POB1 – membership card of the Appellant with No. 8070724; (ii) Exhibit POB2 – enrolled order of Court dated 3/11/2020 in suit No. HIK/25/2020; (iii) Exhibit POB3 – order of Court dated 9/11/2020 in Suit No. HIK/25/2020; (iv) Exhibit POB4 – judgment dated 22/11/2021 in Suit No. HIF/36/2021; (v) Exhibit POB5 and POB6 – enrolled orders dated 3/3/2022 and 10/3/2022 respectively in Suit No. HIJ/6/2022; (vi) Exhibit POB 7A – receipt dated 10/12/2021 for the sum of N20 million and N1 million; (vii) Exhibit POB7B – 1st Respondent’s expression of interest form dated 17/12/2021 bearing the name of the Appellant; (viii) Exhibit POB8 – provisional clearance certificate bearing the name of the Appellant; (ix) Exhibit POB9 – document dated 8/3/2022 and titled “result sheet for Osun State PDP governorship primary election”; (x) Exhibit POB10 – letter dated 10/3/2022 addressed to H.E. Senator (Dr) Iyorcha Ayu.
The 1st Respondent as 1st Defendant at the lower Court in response to the action filed by the Appellant filed a counter affidavit of 49 paragraphs to the originating summons on 21/4/2021. On the same 21/4/2021, the 1st Respondent herein, aside from entering a conditional appearance in the suit of the Appellant on 21/4/2021, filed a Notice of Preliminary Objection (hereafter to be simply referred to as “Notice of P.O.”) together with a written address in support of the said objection on the same 21/4/2022 and annexed to the said counter affidavit are numerous Exhibits. The 1st Respondent equally filed “an amended counter affidavit of 51 paragraphs” to the originating summons on 5/5/2022. By its Notice of P.O., the 1st Respondent challenged the jurisdiction of the lower Court to hear and entertain the Appellant’s suit and sought for:-
“An order of this Honourable Court striking out and or dismissing this suit.”
The grounds of the objection are: –
“a) The Plaintiff lacks locus standi to institute this action.
b) The suit as presently constituted does not disclose any cause of action against the 1st Defendant/Objector.”
Likewise, the 3rd Respondent herein, i.e. 3rd Defendant at the lower Court, having entered a conditional appearance to the suit of the Appellant on 11/4/2022, also filed on the same date a Notice of P.O. equally dated 11/4/2022. The said Notice of P.O. was brought pursuant to Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter to be simply referred to “as the amended 1999 Constitution”), Sections 82 and 84(14) of the Electoral Act, 2022 and under the inherent jurisdiction of the lower Court. In the Notice of P.O., the 3rd Respondent sought for:-
“AN ORDER of this Honourable Court striking out/dismissing this suit for want of jurisdiction.”
The grounds of the objection as set out in the Notice of P.O. are as follows:-
“i. That this Honourable Court lacks jurisdiction to entertain, countenance and/or grant the reliefs on the face of the Originating Summons dated 14th March, 2022.
ii. There is no decision of the Supreme Court, as it relates to parties, that the Plaintiff can enforce through this Honourable Court.
iii. That this Honourable Court is not a Court of subordinate jurisdiction to the Osun State High Court, but a Court of Coordinate Jurisdiction.
iv. This suit is an abuse to the jurisdiction of this Honourable Court.
v. That this Honorable Court lacks the jurisdiction to take cognizance, countenance, and determine this suit being a matter within the internal affairs of the 1st Defendant.
vi. That the suit as presently constituted is grossly incompetent and fails to disclose a reasonable cause of action or cause of action at all against the 3rd Defendant/Applicant and hence, constitute an abuse of the process(es) of this Honourable Court.
vii. That this suit is purportedly brought on behalf of several unidentified persons who are vague, general and generic.
viii. Flowing from the main or principal relief/claims of the plaintiff, the subject matter of the suit relates to “alleged disobedience of the orders of the Osun State High Court as it relates to authorized delegates eligible to vote as delegates in the Primary Election of the 1st Defendant” and therefore non-justiciable.
ix. That the relief sought do not fall under the provisions of Section 251 (1) of the 1999 Constitution, as amended.
x. That the Court lacks vires to countenance this suit being a matter within the purview of internal affairs of the 1st defendant.
xi. The limited jurisdiction conferred by Section 84(14) of the Electoral Act, 2022 does not in any way or manner imbue the Honourable Court with jurisdiction entertain this matter.
xii. The Honourable Court does not have the jurisdictional competence to entertain and/or continence (sic) this action.
The Notice of P. O. is supported by a 12-paragraph affidavit to which the following were annexed as Exhibits: (i) Exhibit WJB1 – judgment of this Court in Appeal No. CA/AK/349/2020; (ii) Exhibit WJB2 – Notice of Appeal in Appeal No. CA/AK/51/2022; (iii) Exhibit WJB3 – signature page of brief of argument in Appeal No. CA/AK/51/2022; (iv) Exhibit WJB4 – motion for injunction pending appeal in Appeal No. CA/AK/51/2022; (v) Exhibit WJB5 – Notice of Appeal in Appeal No. CA/AK/55/2022; (vi) Exhibit WJB6 – signature page of brief of argument in Appeal No. CA/AK/55/2022; (vii) Exhibit WJB7 – Notice of Appeal in Appeal No. CA/AK/38/2022; (viii) Exhibit WJB8 – signature page of the Appellant’s brief of argument in Appeal No. CA/AK/38/2022; (ix) Exhibit WJB9 – enrolled order of Court dated 7/3/2022 in Suit No. HIK/7/2022; (x) Exhibit WJB10 – document titled “report of Peoples Democratic Party (PDP) primary held on 8th March, 2022 in Osun State” dated 9/3/2022.
The Appellant in response to the Notices of P.O. mentioned hereinbefore, filed on 25/4/2022 a written address bearing the same date in response to the P.O. of the 1st Respondent and a 6-paragraph counter-affidavit and written address both filed on 22/4/2022, in response to the P.O. filed by the 3rd Respondent. The following Exhibits were annexed to the said counter-affidavit of the Appellant in response to the supporting affidavit of the 3rd Respondent’s Notice of P.O. (i) Exhibit EB1 – enrolled order of Court dated 3/11/2020 in Suit No. HIK/25/2020; (ii) EB2 – enrolled order of Court dated 9/11/2020 in Suit No. HIK/25/2020; (iii) Exhibit EB3 – Notice of Appeal dated 16/11/2020 filed against the judgment of the Osun State High Court in Suit No. HIK/25/2020; (iv) Exhibit EB4 – judgment dated 22/11/2021 in suit No. FIF/36/2021; (v) Exhibit EB5 – ruling dated 16/2/2022 delivered by the High Court of Osun State in suit No. HIF/36/2021; (vi) Exhibit EB6 – enrolled order of Court dated 3/3/2022 in Suit No. HIJ/6/2022.
Furthermore, the 1st Respondent filed a reply on points of law on 5/5/2022 to the written address of the Appellant filed in response to its preliminary objection. The 3rd Respondent also filed a further affidavit to which is annexed: (i) Exhibit A – a certified true copy of a judgment of the lower Court in Suit No. FHC/CS/322/2022 and a reply on points of law on 4/5/2022.
The case of the Appellant as set up in the supporting affidavit of the originating summons is that he is a member of the 1st Respondent. That one Honourable Olasoji Adagunodo was removed as the chairman of the 1st Respondent in Osun State and the said Honourable Olasoji Adagunodo instituted Suit No. HIK/25/2020 challenging his removal as chairman. The Court in the said suit made interim and mandatory orders of injunction in favour of the said Honourable Olasoji Adagunodo, restraining the defendants therein from expelling the said Honourable Olasoji Adagunodo as a member of the 1st Respondent. Honourable Olasoji Adagunodo further instituted Suit. No. HIF/36/2021 following the failure of the defendants in Suit No. HIK/25/2020 to abide by the orders of the Court made therein. That judgment in Suit No. HIK/25/2020 was made in favour of the said Hon. Olasoji Adagunodo in which one of the orders of the Court was to the effect that the congress conducted by him was valid. That the said Honourable Olasoji Adagunodo led State Executive of the 1st Respondent conducted congress elections on 25/9/2021 in the 215 wards of Osun State. The 1st and 2nd Respondents however refused to recognize the said 215 elected officers in the said congress elections and this caused the said elected officers to institute Suit. No. HIJ/6/2021 wherein the High Coud of Osun State made an order of interim injunction recognizing the ward executives of the 25/9/2021 congress election and also made orders to the effect that the said elected executives must be allowed to vote in the governorship primary elections of the 1st Respondent. The High Court of Osun State in Suit No. HIJ/6/2021 further made interim orders recognizing all executive actions undertaken by the said Honourable Olasoji Adagunodo, restraining the 1st and 2nd Respondents from recognizing any other governorship primary election other than that conducted at the WOCDIF Osogbo center and setting aside any steps taken by the 1st and 2nd Respondents in violation of the orders of the Court. The Appellant stated that he obtained the nomination form of the 1st Respondent for N21 million. That the 3rd Respondent alongside himself and 4 others expressed interest to obtain the said form and were all cleared by the 1st Respondent to participate in the gubernatorial primaries of the 1st Respondent fixed for 8/3/2022. The 1st Respondent published a list of delegates to vote at the said primary election but omitted the delegates elected at the congress conducted under the chairmanship of Hon. Olasoji Adagunodo. That the said Hon. Olasoji Adagunodo sometime in November 2021 was elected National vice chairman of the 1st Respondent for south west and relinquished the leadership of the 1st Respondent in Osun State to one Ojo. That the said gubernatorial primary election held on 8/3/2022 at WOCDIF centre Osogbo and the 2nd Respondent was notified and informed of the same and that he (Appellant) emerged as the winner thereat. That the 1st Respondent also conducted a congress at the Osogbo stadium wherein the 3rd Respondent emerged as winner and was issued a certificate of return by the 2nd Respondent despite his (Appellant) protest to the national leadership of the 1st Respondent vide a letter dated 10/3/2022.
The P.Os filed by the 1st and 3rd Respondents respectively were entertained by the lower Court on 9/5/2022 and the said Court in its decision delivered on 18/5/2022 which it styled “judgment” and which spans pages 1508-1561 of the record of appeal (hereafter to be simply referred to as “the record”) found the Appellant’s case to be incompetent and that it lacks the jurisdiction to entertain the same. The said Court consequently struck out the Appellant’s case for the reasons “adduced in the body of this judgment”.
Aggrieved by the decision of the lower Court striking out his action, the Appellant initiated this appeal by lodging at the registry of the said Court on 25/5/2022 a notice of appeal dated 23/5/2022. The numbering of the grounds of appeal suggests that there are 11 grounds of appeal. The grounds of appeal as numbered and as set out in the said notice of appeal, shorn of their respective particulars are hereby set out for reasons which will become apparent shortly in this judgment. They read thus: –
“GROUND 1
The learned trial Judge erred in law when in his consideration of the Preliminary Objections filed by the 1st and 3rd Respondents against the Originating Summons of the Appellant went into and considered the merit of the case, contrary to well laid down authorities of higher Courts by holding at pages 40 to 42 of the judgment thus:
“The Plaintiff is relying on the primary election conducted by the group led by the state acting Chairman of the party supported by the delegates elected under the leadership of the former state executives of the party to found reliefs 2, 5 and 9 in the Originating Summons. I am of the view that the primary election conducted by the state acting chairman of the party and delegates elected under the state executives of the party under the leadership of the former state chairman at WOCDIF Center, Osogbo is not recognized under the Electoral Act. The said primary election which form the basis upon which the Plaintiff wants the Court to declare him as the duly elected governorship candidate of the 1st Defendant for the governorship election slated for July, 2022 was held in violation of the provisions of Sections 82 (1) and (5) and 84(1) of the Electoral Act 2022. The primary election held at WOCDIF center, Osogbo fail to meet the mandatory provisions or stipulations in Sections 82 (1) & (5) and 84(1) of the Act which make it mandatory that statutory notice shall be given to the commission at least 21 days to the date of congress election for the purpose of nominating candidates for any elective offices specified under the Act.
Section 82 (5) of the Act makes it mandatory and failure to notify the commission as stipulated under Section 82(1) of the Act renders such congress or primary election invalid. Section 84(1) of the Act makes it mandatory requirement that such primary election shall be monitored by the commission.
Although the Plaintiff tacitly alluded to it in paragraph 21 of his affidavit in support of the originating summons that the commission was notified and invited, however he failed to substantiate his claim by any credible evidence. Proof of issuance or service of statutory notice as envisaged under Section 82(1) & (5) of the Act is by credible evidence which is not left to mere conjecture as the Plaintiff has done in the instant case.
As a corollary to the above, holding or conducting primary election by state executive committee of a political party has been held to be illegal as Section 84(5) of the Electoral Act, 2022, which is pari materia which Section 87(4) of the Electoral Act, 2010 has been construed to donate such to the National working committee/National Executive Committee of a political party as the only body that can conduct such elections.”
GROUND 2
The learned trial Judge erred in law and truncated the right of the Appellant to fair hearing when he failed at the end of the consideration of the Preliminary Objections to proceed as an alternative to consider, pronounce and decide on the merit of the Originating Summons in case the Appellate Court on appeal takes a different view on his Lordship’s decision and conclusions on the Preliminary Objections.
GROUND 4
The learned trial Judge further erred in law by holding at pages 38 to 40 of the judgment as follows:
“l am of the considered view that the ratio in the above decision applies to the instant case. By his claims, questions formulated in the originating summons and circumstances of this case as revealed in the affidavit evidence before the Court, the gravamen of the complaint/grievance of the Plaintiff relate to the alleged disobedience by the 1st and 2nd Defendants in conducting the governorship primary election held in disobedience to the various orders and judgment of the State High Court.
Further to the above, the Plaintiff is by this action urging the Court to declare him as the duly elected governorship candidate of the 1st Defendant as a way of enforcing the said orders and judgment of Osun State Court upon which he substantially built his case.
Building a compliant on an alleged disobedience to Court order is not envisaged or contemplated in Section 84(14) of the Electoral Act, 2022. The only complaint contemplated under the section has to do with the complaint by an aspirant who contested or took part in the primary election and who is complaining that the provisions of the Electoral Act and guidelines of his political party has not been complied with in the selection or nomination of a candidate of a political party for the election. That is not the case of the Plaintiff in this instant case. He has not mentioned or referred the Court to a single section of the Electoral Act or the guidelines of the 1st Defendant that have been breached or which was not complied with by the Defendants. The claims and reliefs of the Plaintiff are clearly outside and not within the purview of Section 84(14) of the Electoral Act 2022. The Plaintiff admitted in paragraphs 21 and 22 of his affidavit in support of the originating summons that he did not take part or participate in the election held by the 1st Defendant.
Instead of taking part in the primary election conducted by his political party and monitored by INEC, the statutory body empowered to monitor such primary elections), the Plaintiff elected to abandon the primary conducted by the 1st Defendant and decided to participate in the primary election conducted by group of persons headed by the State acting chairman of the party where delegates allegedly backed by orders and judgment of the State High Court cast their votes.
While relying on the orders and judgment of the Osun State High Court, the Plaintiff abandoned the primary election conducted by the National Executive Committee of the 1st Defendant held at the Osogbo township Stadium and opted to take part in the parallel primary election held at WOCDIF Osogbo Center organized and superintended by state acting chairman of the party and the delegates elected under the former State Executives led by Hon. Adagunodo. Refer to paragraphs 21 and 22 of the affidavit in support of the originating summons.”
GROUND 5
The learned trial Judge erred in law when His Lordship came to the following erroneous conclusion in his judgment by holding at page 44 that:
“The foregoing leaves no one in any doubt that the primary election held at the Osogbo Township Stadium which produced the 3rd Defendant was conducted by the National Executive Committee (NEC) or National Working Committee (NEC) of the 1st Defendant while the parallel primary election held at WOCDIF Center, Osogbo on 8/3/2022 was conducted by a group of individuals led by the State acting Chairman of the party in Osun State who chaired the Congress.
In line with the decisions of the appellate and Supreme Courts (Supra), the parallel congress election held at WOCDIF Centre, Osogbo that produced the Plaintiff is illegal as well as invalid.”
GROUND 6
The learned trial Judge totally missed, misconstrued and misunderstood the case of the appellant as evinced in the originating summons by holding at pages 46 to 47 of the judgment as follows:
“l am therefore of the considered view that placing reliance on the orders and judgment of the State High Court as done by the Plaintiff in this case is like erecting his edifice on an already collapsed or demolished foundation.
Besides, the Plaintiff is not even a party in any of the suits in respect of which the orders were made by the State High Court. This goes to affect the locus standi of the Plaintiff over his interest or rights in the orders not made in his favour or against him.
This goes to raise the issue of his locus standi in founding his cause of action on the alleged disobedience to the orders and judgment not made in his favour or against him.
I am of the firm view that the necessary parties whose presence are required when such orders are in issue are Hon. Adagunodo and the ward Executive Officers of the party who were allegedly elected as delegates on the 25/9/2021 in whose favour the orders and judgment were obtained. The failure to join them and their absence in the instant case where the plaintiff built his whole case on the orders and judgment made in their favour is fatal to the cause of action in the instant suit and same strips down the locus standi of the Plaintiff. The questions his right or propriety of founding the Plaintiff’s cause of action on the alleged disobedience to orders and judgment made in suit in which he was not a party.”
GROUND 7
The learned trial Judge erred in law and occasioned a miscarriage of justice against the Appellant when he held that the case of the Appellant borders on the internal affairs of the 1st Respondent and by holding at pages 47, 48 and 50 of the judgment that:
“On whether the claims of the Plaintiff as revealed in the originating summons relate to internal affairs of the 1st Defendant as a political party over which this Court has no jurisdiction to entertain, I have examined the questions subscribed for determination and the reliefs of the Plaintiff in line with his complaints as contained in the affidavit in support of the originating summons.
It is not in doubt that the gravamen of the complaints of the Plaintiff is that the ward executive officers elected on the 25/9/2021 under the leadership of Honourable Adagunodo, the former State Chairman of the party who by the orders and judgment of Osun State High Court where endorsed as the authentic delegates were not allowed to vote at the Governorship Primary election held on the 8/3/2022 at the Osogbo Stadium in compliance with the orders and judgment of the State High Court. The case of the Plaintiff is therefore founded and premised on the determination of who are the rightful or legitimate delegates entitled to vote in the recently concluded governorship primary election of the 1st Defendant in Osun State. The Plaintiff is by his claims asking the Court to determine who are the legitimate and lawful delegates who should have voted in the Governorship primaries of the 1st Defendant which held on the 8/3/2022 between those who participated and voted in the two parallel primaries conducted by the National Executive Committee of the 1st Defendant at the Osogbo Township Stadium and the one conducted by the State acting chairman of the party at the WOCDIF Centre, Osogbo in the state…
Coming from the foregoing and in tandem with the plethora of case law so far considered in this judgment, it is established beyond peradventure that the claims of the Plaintiff in the instant case relate to and have to do with domestic and internal affairs of the 1st Defendant (PDP) over which this Court lacks jurisdiction to entertain. I so hold.”
GROUND 8
The learned trial Judge erred in law by holding wrongly that the Appellant’s case discloses no reasonable cause of action by declaring at pages 51 to 52 of the judgment thus:
“Coming to the instant case, the right or standing or capacity to sue or seek redress over issue of conduct of primary election in the selected or nomination of a candidate of a political party for election like in the instant case is provided for in Section 84(14) of the Electoral Act, 2022.
Plethora of case law so far considered in this ruling have indisputably established the position of the law that it is only an aggrieved aspirant who physically participated or contested in a primary election conducted by the National Executive Committee of his party that is imbued with locus standi to approach Court for redress. This can take place only where the provisions of the Electoral Act and the constitution or guidelines of a political party is breached and/or not complied with.
In the instant case, the Plaintiff himself admitted that he did not participate or take part in the primary election conducted by the National Executive Committee of the 1st Defendant monitored by the 2nd Defendant at the Osogbo Township Stadium, Osun State on the 8/3/2022. The Plaintiff did not allege that any provisions of the Electoral Act and the Constitution or guidelines of the 1st Defendant was breached or not complied with.
It is therefore established beyond doubt that the Plaintiffs originating summons do not disclose any reasonable cause of action and the Plaintiff lacks the requisite locus standi to institute and maintain this suit.”
GROUND 9
The learned trial Judge totally misapprehended the gravamen of the case of the Appellant as presented by holding erroneously at pages 52 to 53 of the judgment that:
“Furthermore, the fulcrum of the Plaintiffs case is the disobedience of the Defendants to the various orders made pursuant to these suits and in order to enforce compliance, this suit was filed. It is trite that it is a civil contempt of Court to refuse or neglect to do an act required by a judgment or order of Court. However, such judgment or order of Court cannot be enforced by a fresh suit such as this in order to enforce compliance. Disobedience to an order of Court is contemptuous in nature and there are remedies available to an aggrieved party. Such contemptuous act cannot be cured by instituting a new suit in order to enforce compliance. That is what this suit seeks to achieve.
See Engr. Asukwo Effoing Odiong v. Obong Iyamba Edet Effiong Offiong (2011) LPELR-4679 (CA). In my humble and respectful opinion, the right thing for the plaintiff to do is to revert back to the Courts that made those order(s) for purposes of enforcing same.
In conclusion, it is against the background of all that have been considered above that I resolve all the issues in this judgment in favour of the Defendants/Objectors against the Plaintiff.
To this end, I find merit in the notices of preliminary objection of the 1st and 3rd Defendants.”
GROUND 10
The learned trial Judge was wrong when His Lordship held at pages 45 to 46 of the judgment that:
“in addition to the foregoing, the mandatory interim order of injunction granted by Osun State High Court on 3/11/2020 converting to preservative order of mandatory injunction by the State High Court on 9/11/2020 which form the foundation and basis of other subsequent judgment and orders of the State High Court being relied upon by the Plaintiff has already been set aside by the Court of Appeal in Appeal No: CA/AK/349/2020 in the judgment delivered on 5/3/2021.
The relevant portion of the judgment at pages 54, 55, 62 and 63 is reproduced hereunder;
“looking at the entire scenario of the instant case, one cannot but agree with Mr. Oke that the lower Court’s latter decision of granting a preservatory order indefinitely amounted to granting the Respondent, the reliefs sought for in the originating summons… it appears obvious therefore, that the lower Court by granting to the Respondent the interim orders and the Respondent enforcing the exparte orders granting (sic) to the detriment of the Appellants when the originating summons was yet to be heard amounted no doubt to a breach of the appellants right to fair hearing… Having therefore determined issues 1, 2, 3, 4, 5 and 7 in favour of the Appellants, and issue being the determinant issues, this appeal must and accordingly succeeds, and it is hereby allowed by me. In the result, the decision of the lower Court per Falola J., in Suit No. HIK/25/2020 is hereby set aside. I also set aside the mandatory interim order of the lower Court directing that Respondent be restored as the Chairman of the Peoples Democratic Party (PDP) pending the merit of the originating summons before the lower Court.”
GROUND 11
The lower Court misdirected itself in law and came to a perverse decision when it held at page 49 of the judgment thus:
“Coming from the foregoing and in tandem with the plethora of case law so far considered in this judgment, it is established beyond peradventure that the claims of the Plaintiff in the instant case relate to and have to do with domestic and internal affairs of the 1st Defendant (PDP) over which this Court lacks jurisdiction to entertain. I so hold.”
The reliefs sought by the Appellant from this Court in this appeal are: (i) to allow the appeal; (ii) set aside the decision of the lower Court; (iii) invoke the provisions of Section 15 of the Court of Appeal Act to consider the merit of the case and enter judgment in his favour; alternatively (iv) to remit the case to the Chief Judge of the lower Court to assign same to another Judge.
The appeal was entertained on 13/7/2022. Learned senior counsel, Yusuf Ali, SAN, and Adebayo Adelodun, SAN leading 3 other learned counsel, in urging the Court to allow the appeal, adopted and relied on the Appellant’s brief of argument dated 10/6/2022 and filed on 14/3/2022 but deemed to have been properly filed on 27/6/2022 and Appellant’s reply briefs of argument dated 6/7/2022 and filed on 7/7/2022 but deemed properly filed on 13/7/2022 to the briefs of argument of the 1st and 3rd Respondents respectively. In his oral adumbration, learned senior counsel, Yusuf Ali, SAN not only referred to the meaning of “an aspirant” as contained in the Electoral Act, 2022 (hereafter to be simply referred to as “Electoral Act”) but also cited the cases of Nothman v. London Borough of Barnet [1978] All E.R. 1243 and Seaford Court Estates Ltd. v. Asher (1949) 2 All E.R. in support of his stance that the Appellant was an aspirant in the primaries of the 1st Respondent.
In the same vein, learned leading counsel, M.S. Atolagbe, in urging the Court to dismiss the appeal adopted and relied on the brief of argument dated 30/6/2022 and filed on 29/6/2022 by the 1st Respondent. Learned leading counsel in adumbration referred the Court to portions of the brief of the 1st Respondent he considered relevant. Similarly, learned leading counsel, Jimi-Bada, likewise adopted and relied on the brief of argument of the 3rd Respondent dated 28/6/2022 and filed on 29/6/2022, in urging the Court to dismiss the appeal. He too, in adumbration laid emphasis on portions of the 3rd Respondent’s brief of argument he considered relevant.
In his brief of argument, the Appellant formulated four issues for the determination of his appeal. The issues read thus: –
“1. Whether the learned trial Judge was right when in the consideration of the preliminary objections of the respondents which did not deal with the merit of the matter, His Lordship however went to deal with the merit of the substantive suit, contrary to the principles of law in decided authorities of this Court and the Supreme Court and by also failing, having upheld the Preliminary Objection to make pronouncement on the issues properly submitted in the matter.
2. Whether the learned trial Judge was not wrong in coming to a conclusion that the Appellant lacks locus standi to file the case and that the suit disclosed no reasonable cause of action when, in coming to this conclusion, His Lordship not only misconstrued the case of the appellant but placed wrong interpretations on the provisions of Section 82(1) and (5), 84(1), (5) and (14)(a) of the Constitution of the Federal Republic of Nigeria 1999 as (Amended) and thereby came to a wrong decision in this matter.
3. Whether the trial Judge was right in coming to the erroneous decision that the case of the Appellant was concerned with and/or related with the internal domestic affairs of the 1st Respondent and that the Court therefore lacked jurisdiction to decide the case, when this was totally not the case.
4. Whether the learned trial Judge did not totally misconstrue the case of the Appellant by holding that the case of the Appeiiant dealt with the enforcement of various orders made by the Osun State High Court when, in fact the case of the Appellant was that, having regard to the valid order of the Osun State High Court, the National Executive Committee of the 1st Respondent ought not to have proceeded to hold any convention on the 8th of March, 2022 at the Osogbo Township Stadium, contrary to the binding orders of the Osun State High Court and when the Judgment of the Court of Appeal in Appeal No: CA/AK/349/2020 did not in any way nullify, set aside nor affect the ruling and judgment of Honourable Justice (Dr) Aderibigbe J.”
The issues formulated by the 1st Respondent for the determination of the appeal and the grounds from which they were distilled are: –
“1. Whether the learned trial Judge was not right both in laws (sic) and facts in his consideration of the Notices of the Preliminary Objections of the 1st and 3rd Respondents to hold that the Appellant lacks locus standi to institute before the trial Court Suit No: FHC/OS/CS/26/2022. (From Grounds 1 and 6).
2. Whether the trial Judge was not right in reaching his conclusion that the subject matter of the Appellant’s case borders on the domestic/internal affairs of the 1st Respondent to nominate its gubernatorial candidate to contest the Governorship Election Schedule for 16th July, 2022 in Osun State. (Grounds 3, 4, 7, 8, 9 and 11).
3. Whether the learned trial Judge was not right to have come to conclusion that the parallel congress election held at WOCDIF Centre, Osogbo that produced the Appellant was illegal and invalid (Ground 5).
4. Whether the learned trial Judge was not right in law to have held and concluded that the interim order of injunction granted by the Osun State High Court on 3/11/2020 converting to mandatory injunction on the 9/11/2020 which formed the foundation relied upon by the Appellant has not been set aside by the Court of Appeal in Appeal No: CA/AK/349/2020 in the judgment delivered on the 5th March, 2021 (Ground 10).”
The 3rd Respondent formulated 2 issues for the determination of the appeal. The issues and the grounds from which the said issues were formulated read thus: –
“1. Whether the learned trial Judge in its consideration of the 1st and 3rd Respondents’ Preliminary Objection went into the merit of the substantive suit filed by the Appellant. (Distilled from Grounds 1 and 2 of the Notice of Appeal).
2. Whether the learned trial Court in its resolution of the 1st and 3rd Respondents’ Preliminary objection misconstrued the case of the Appellant and thereby came to a wrong conclusion in upholding the preliminary objection of the 1st and 3rd Respondents and striking out the suit of the Appellant. (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Notice of Appeal).”
The grounds of appeal as set out in the notice of appeal have been reproduced hereinbefore and a perusal of the same reveals that there is no ground 3 in the grounds of appeal in the notice of appeal lodged by the Appellant. The numbering of the grounds of appeal contained in the notice of appeal is, 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11. Relating the grounds of appeal to the issues he formulated for determination, the Appellant stated in paragraph 4 of his brief as follows:-
“4.00 MARRIAGE OF GROUNDS OF APPEAL WITH ISSUES FOR DETERMINATION
4.01 Issue one was distilled from grounds 1 and 2, Issue two was distilled from Grounds 3 and 4, Issue three was distilled from Grounds 7, 9 and 11, while issue four was distilled from Grounds 4, 5, 6 and 10.”
The position of the law in relation to notice of appeal and how the content of a notice of appeal can be altered in any manner (by addition thereto, or modification, or deletion of any part thereof) is sacrosanct. This can only be achieved by seeking for the amendment of such a notice by first seeking the leave of the Court to do so. It is thus apparent that the Appellant has formulated his issue 2 from ground 4 and a ground of appeal not contained in the notice of appeal (i.e. a non-existent ground 3) without first procuring the leave of this Court to tamper with the numbering of the grounds in the said notice of appeal.
The Appellant also formulated his issue 4 from grounds 5, 6, 10 and also ground 4 from which issue 2 was also distilled. It is not only a settled principle of law that a ground of appeal cannot be the subject of more than one issue but also that issues for determination must be formulated from competent grounds of appeal and where a particular ground of appeal forms the component of more than one issue and also where an issue is formulated from a competent and incompetent ground of appeal, the said issue is incompetent and must be struck out. See in this regard the decision of this Court in the case of A-G IMO V. WORTHINGTON SPA (2021) LPELR-55896(CA) wherein this Court per Lokulo-Sodipe, JCA; applying the settled principles of law as decided in numerous cases by the Supreme Court stated thus:-
“Glaringly, the Appellants in my considered view, would appear to have jettisoned some settled principles of law relating to “formulation of issues for determination”, in their brief of argument. The principles of law in question are:-
(i) That only an issue can properly be formulated or distilled from a ground of appeal, even though it is permissible to formulate or distill an issue from one or more grounds of appeal. In other words that it is not permissible for two or more issues to be formulated from one ground of appeal. This is because a ground of appeal should not be split to raise two or more issues. Where this is done, the ground of appeal in question as well as the two issues or the many issues into which the ground of appeal has been split, should be ignored or struck out as incompetent. This is because it is not the duty of the Court to make a choice for the appellant between the two issues or many issues allegedly framed from one ground of appeal. See the cases of SOCIETY BIC S.A. V. CHARZIN INDUSTRIES LTD (2014) LPELR-22256(SC); YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) and A-G BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt. 118) 646 amongst many others.
(ii) That an issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the Court must be deemed abandoned and the ground or grounds of appeal from which no issue or issues is or are distilled, should similarly be struck out. See the cases of ACHONU V. OKUWOBI (2017) LPELR-42102(SC), ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC), ADEGBENRO V. AKINTILO (2009) LPELR-4423(CA) and INT’L BANK FOR WEST AFRICA V. SASEGBON (2007) LPELR 8246(CA) amongst many others.
(iii) That where a valid or competent issue is argued together with an invalid or incompetent issue, or a new issue in respect of which the requisite leave had not been first sought and obtained, and or an issue or issues distilled from non-existent ground(s) of appeal, such issues that have been argued together are incompetent and liable to be struck out. This is because, where this is done, it will not be the business of the Court to sift the chaff from the grains, an exercise that would clearly involve arguments in respect of the valid issues from the invalid ones. Such an exercise may involve the Court descending into the arena of dispute which will often becloud the judgment of the Court. See the cases of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) LPELR-44501(SC) and IKPEAZU V. OTTI (2016) LPELR-40055(SC) amongst many others.
See also the case of JEV V. IYORTYOM (2014) LPELR-23000(SC) wherein the Supreme Court per Okoro, JSC; stated thus: –
“… I wish to say that this Court has, in a plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent as the Court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent grounds of appeal are in themselves not competent and are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination. …”
Again, see the case of STATE V OMOYELE (2016) LPELR-40842(SC) wherein the Supreme Court per Rhodes-Vivour, JSC; held thus:-
“Two or more issues cannot be formulated from one ground of appeal, but one issue can be formulated from more than one ground of appeal. By the appellant’s own admission, issue 1 was formulated from grounds 1, 3, 4 and 5 while issue 2 was formulated from ground 1, this is clearly wrong as two issues were formulated from one ground of appeal (i.e. ground 1), and as my Lord Ngwuta, JSC pointed out, it makes no difference that other grounds of appeal were involved. …”
Flowing from all that has been stated hereinbefore is that issue 2 formulated by the Appellant must be and is hereby struck out for incompetence inasmuch as the same has been formulated from a competent ground 4 and a non-existent/invalid ground 3. By the same token, the Appellant having formulated his issues 2 and 4 from a combination of grounds of appeal including ground 4 has by this act split the said ground 4 (i.e. in the formulation of issues 2 and 4). The said issue 4 is likewise incompetent. Accordingly, Appellant’s issues 2 and 4 as well as grounds 3, 4, 5, 6, and 10 from which the said issues were distilled having become incompetent are hereby struck out.
A perusal of the issues for determination of the appeal as formulated by the 1st and 3rd Respondents respectively, shows that the 1st Respondent formulated its issue 1 from ground 1 and ground 6 in the notice of appeal. Ground 6 in the notice of appeal has now been struck out. It therefore follows that issue 1 formulated by the 1st Respondent having been formulated from ground 1 in the notice of appeal and ground 6 that has been struck out before now, is liable to be struck out having been formulated from a valid ground of appeal and an incompetent ground of appeal. It is also glaring that issue 2 formulated by the 1st Respondent is also liable to be struck out as it was distilled from a combination of grounds of appeal including the invalid/non-existent ground 3 in the notice of appeal and ground 4 in the same notice of appeal which has hereinbefore been struck out. Again issue 3 formulated by the said 1st Respondent having been disclosed to have been formulated from ground 5 in the notice of appeal which has been struck out before now, and issue 4 which has also been distilled from ground 10 in the notice of appeal which has been struck out before now, are liable to be struck out. In the same vein, issue 2 formulated by the 3rd Respondent from the non-existent ground 3 in the notice of appeal and grounds 4, 5, 6, and 10 amongst others in the said notice of appeal which have been struck out before now, is liable to be struck out. Consequently, all the 4 issues formulated by the 1st Respondent for the determination of this appeal in as much as they were distilled from invalid grounds of appeal as well as issue 2 formulated by the 3rd Respondent for the determination of this appeal, inasmuch as the same have been distilled from a combination of competent and incompetent grounds of appeal, are struck out for their respective incompetence. The live or surviving issues for the determination of the appeal namely, issues 1 and 3 formulated by the Appellant; and issue 1 formulated by the 3rd Respondent are the issues that will be considered by the Court in the resolution of this appeal.
Dwelling on his issue 1, the Appellant submitted to the effect that the fulcrum of the P.O. filed by the 1st and 3rd Respondents is the challenge by the said Respondents of his locus to institute the action at the lower Court, as he was not an aspirant in the primary election as alleged by them, and the incompetence of his case before the said Court on the ground that he was not an aspirant within the contemplation of the provisions of Section 84(14) of the Electoral Act. It is the contention of the Appellant that the lower Court went beyond the issues raised in the POs and delved into a consideration of the substantive suit. Dwelling on his issue 3, the Appellant submitted to the effect that he instituted his suit owing to the disobedience of the orders and judgment of Court delivered on 3/3/2022 in HIJ/6/2022 and 22/11/2021. That his case before the lower Court is to challenge the nomination of the 3rd Respondent by the 1st Respondent as its candidate for the gubernatorial elections to be held in the State. That the Court had previously sanctioned the delegates that emerged from the congress of the 1st Respondent held on 21/9/2021 as the lawful delegates to vote at the governorship primaries of the 1st Respondent. The lower Court was called upon by his suit to remedy the actions of the Respondents in contempt with the said orders of the Court recognizing the delegates as lawful delegates in the gubernatorial primaries of the 1st Respondent. It is the stance of the Appellant that the issue of persons who were entitled to vote at the primary elections of the 1st Respondent on 8/3/2022, does not relate to the domestic affairs of the 1st Respondent. Appellant referred to Section 84(4) of the Electoral Act and submitted that he was duly recognized as a gubernatorial aspirant of the 1st Respondent and that he initiated the action at the lower Court “to complain about the 1st Respondent’s refusal to comply with the valid order made by Hon. Justice (Dr) A. A. Aderibigbe sitting at the Ijebu-Jesha Division of the Osun State Court on 3rd March, 2022 in Suit No: HIJ/6/2021. It is the stance of the Appellant that the lower Court misapplied and wrongfully relied on the case of PDP V. OGUNDIPE (2018) LPELR-43887(CA) which dealt with the issue of correct and acceptable leadership of the Zonal Working Committee of the 1st Respondent and the said Court failed to interpret and apply the decision of the Supreme Court in LAU V. PDP (2017) LPELR-42800(SC) before arriving at its decision. That the lower Court was bound by the decision of the Supreme Court applicable to the suit before it. Appellant submitted that his suit is a pre-election matter premised upon Section 84 of the Electoral Act and not related to an intra-party dispute. Appellant further argued that he could properly rely on the extant orders of the Court of 3/3/2022 by A.A. Aderibigbe, J. and the lower Court had a duty to enforce compliance with the said orders. That the decision of the lower Court to the effect that judgment or order of the Court cannot be enforced by a fresh suit such as the Appellant’s case, the Court having noted that the fulcrum of the Appellant’s case is the disobedience of the Respondents to the various orders of the lower Court was a total misconception of his case. Appellant referred to Section 287(1) of the amended 1999 Constitution and submitted that the lower Court had a duty to ensure adherence to orders of Court and that the 3rd Respondent cannot be allowed to benefit from the gubernatorial primaries organized by the 1st Respondent wherein the 3rd Respondent emerged as winner. Appellant further referred to Sections 251 and 285(14)(a) of the amended 1999 Constitution and Sections 152 and 84(14) of the Electoral Act and submitted that he qualifies as an aspirant and thus is entitled to file the suit before the lower Court to challenge the illegality in the conduct of the 1st Respondent’s primaries and the lower Court is vested with the requisite jurisdiction to adjudicate on his case, it being a pre-election matter.
Given that there is now no live issue formulated by the 1st Respondent for the determination of this appeal, I now proceed to consider the only surviving valid issue formulated by the 3rd Respondent for the determination of the appeal. I however consider it pertinent to state that the 2nd Respondent did not file any brief of argument in this appeal.
Dwelling on his issue 3 (which is the only competent issue before this Court) the 3rd Respondent submitted to the effect that the lower Court in the consideration of the P.O. filed by him and the 1st Respondent did not consider the merit of the substantive suit and referred to the ruling of the lower Court on pages 1545 to 1547 (Vol. 5) of the record. It is the stance of the 3rd Respondent that the lower Court could not have resolved the issue of locus standi of the Appellant to have instituted the suit or the competence of the said suit without examining the Appellant’s originating process to decide whether or not the Appellant participated in the primary election complained of and doing so does not tantamount to a consideration of the substantive suit. That the case of the Appellant as can be gleaned from the questions formulated for determination, the reliefs sought and the affidavit in support of his originating summons relates to the 1st and 2nd Respondents proceeding to conduct a primary election at the Osogbo Stadium on 8/3/2022, in contravention of orders of Court and not whether or not the primary election which the Appellant participated in, at the WOCDIF Centre was conducted in line with the provisions of Section 82(5) of the Electoral Act. That where a Court comes to the conclusion that it has no jurisdiction to entertain a case, the proper order to make is one striking out the suit and it is unnecessary to consider other issues therein.
A consideration of the Appellant’s reply brief to the 1st Respondent’s brief has now become otiose given that there is now no competent issue/arguments put forth by the 1st Respondent in this appeal. The said Appellant’s reply brief to the 1st Respondent’s brief of argument is hereby discountenanced.
I have also perused the Appellant’s reply to the 3rd Respondent’s brief of argument. The submissions therein encompass arguments which go to emphasize the submissions contained in the Appellant’s brief of argument and responses to issues/arguments raised by the said 3rd Respondent which have hereinbefore been struck out. The said reply brief thus has no utilitarian value in the determination of this appeal.
The appeal is that of the Appellant and the valid and competent issues formulated for its determination as have been found hereinbefore, namely, issues 1 and 3 will be determined or resolved against the backdrop of the settled position of the law as it relates to the issue of jurisdiction and/or competence of an action, as enunciated amongst others in the case of MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR-1887(SC) wherein the Supreme Court dwelling on “guidelines for determining the competence of Court in the adjudication of proceedings” stated per Ayoola, JSC; thus:-
“There seems to have been some confusion in the respondents’ arguments, as well as in the approach of the Court below, with regard to the issue of pre-action notice. Much stress has been placed on the argument that non-compliance with provisions such as Section 29(2) of the Act leads to a question of jurisdiction which can be raised at any time and which if resolved against the appellant renders the entire proceedings a nullity. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows:
(i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed.
(ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on the ascertainment of facts, the Court should regard such incompetence as arising ex facie.
(iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence.
(v) Where competence is presumed because there is nothing on the face of the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons.
(vi) A judgment given in proceedings which appear ex facie regular is valid.
The proposition that incompetence of a superior Court will not be presumed where nothing on the face of the proceedings shows any incompetence derives from the general principle that the general jurisdiction of a superior Court is presumed. In Halsbury’s Laws of England, Vol. 10, 4th Edition, para. 713, it was stated: “Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so…”
…”
Suffice it to say that the Supreme Court and this Court dwelling on the fundamentality and the determinants of the issue of jurisdiction have over the years consistently held to the effect that the issue of jurisdiction can be raised at any stage of the proceedings and even for the first time in the Supreme Court; and by any means. There are also authorities galore to the effect that when jurisdiction is in issue, and depending on the stage when the challenge is being entertained, such an issue is to be resolved on the originating processes filed in the matter. See for the principles stated hereinbefore the cases of AJAYI V. ADEBIYI (2012) LPELR-7811(SC) amongst many others. Indeed, see especially the cases of ESABUNOR V. FAWEYA (2019) LPELR.46961(SC) and ZUBAIR V. KOLAWOLE (2019) LPELR-46928(SC) wherein the Supreme Court dwelling on the issue of jurisdiction stated thus:-
“Ordinarily, it is only the writ of summons and statement of claim that are considered by the Court to determine whether it has jurisdiction to entertain a cause of action or not. The fundamental nature of jurisdiction means that it can be raised at any stage of the proceedings and even for the first time on appeal before the apex Court. The stage at which the issue is raised may depend on the materials available. It was held in the case of Anyah Vs Iyayi (1993) 7 NWLR (Pt. 305) 290 309 F – G, per Karibi-Whyte, JSC, that apart from the statement of claim, the jurisdiction of the Court can be determined by other considerations in the absence of which there can be no jurisdiction. In certain circumstances, it may be raised on the basis of evidence received. In other words, it may not be possible to determine the issue until after evidence has been given. See N.D.I.C. Vs C.B.N. (2002) 7 NWLR Pt.766) 272; Barclays Bank of Nig. Ltd. vs C.B.N. (1976) 1 ANLR 326. A summary of the defences referred to above is that the suit before the trial Court was incompetent.
It is settled law that a Court is competent when:
(i) It is properly constituted as regards numbers and qualifications of the members of the Bench and no member is disqualified for one reason or the other;
(ii) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction;
(iii) the case comes before the Court initiated by due process of the law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.
See: …”
I am of the settled view that the law recognises the issue of locus standi as well as non-disclosure of cause of action and or reasonable cause of action, as variants of jurisdiction. Hence the position of the law is that when the issue of locus standi, and or cause of action are raised as threshold issues, what the Court is bound to look at are the originating processes of the party that filed the action. See the cases of ODIMEGWA V. IBEZIM (2019) LPELR-46939(SC), ADENUGA V. ODUMERU (2003) LPELR-24860(SC) and OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC) amongst many others.
I am of the considered view that the lower Court in clear adherence to the position of the law regarding the processes it was bound to consider in the resolution of the P.Os it entertained, correctly set out the case of the Appellant as gathered from the questions posed for the determination of the said Court, reliefs sought by the Appellant in the originating summons and depositions in the supporting affidavit of the originating summons, thus:-
“Two parallel gubernatorial primary elections were held on the 8/3/2022. One Gubernatorial primary election was conducted and held by the 1st Defendant and monitored by the 2nd Defendant at the Osogbo Township Stadium while the second was conducted and held by the acting State Chairman of the party where ward executive officers who were recognized as authentic delegates recognized by order of Court voted on the same date at WOCDIF Centre, Osogbo in Osun State.
The primary election held and conducted by the party and monitored by INEC produced the 3rd Defendant as its winner while the primary election conducted by the State acting Chairman of the party was said to produce the Plaintiff as its winner.
By this action, the Plaintiff wants the Court to order the 1st and 2nd Defendants to recognize, give effect and sanction the primary election conducted and held at WOCDIF Centre, Osogbo which declared him duly elected Governorship candidate of the PDP for the State Governorship Election scheduled for July, 2022. The Plaintiff also wants the Court to declare the primary election conducted by the 1st Defendant and supervised by INEC held at the Osogbo Township Stadium, Osun State where the 3rd Defendant emerged as the elected candidate of the party illegal, unconstitutional, null and void.
The Plaintiff wants the Court to declare him as the duly elected Governorship Candidate by the primary conducted on the 8/3/2022 at WOCDIF Centre, Osogbo while the primary conducted by the 1st Defendant and monitored by the 2nd Defendant at the Osogbo Township Stadium, Osogbo where the Plaintiff emerged as the party’s governorship candidate, nullified.
The Plaintiff is praying the Court to direct INEC (2nd Defendant) to recognize, accept and deal with him as the duly elected Governorship candidate of the party (the 1st Defendant) for the Osun State Governorship election scheduled for July, 2022.
It is on the basis of the claims of the Plaintiff and facts relied upon by him that the 1st and 3rd Defendants raised preliminary objections against the instant suit challenging the jurisdiction of the Court to entertain same. As shown in the two notices of preliminary objection of the 1st and 3rd Defendants, each raises objection against the jurisdiction of this Court to entertain the instant suit on 2 and 12 grounds, respectively.
The lower Court in its ruling set out the issues or grounds on which 1st and 3rd Respondents respectively challenged its jurisdiction to entertain the Appellant’s case, thus: –
“1) That the Plaintiff lacks locus standi to institute this action.
2) That the suit as presently constituted does not disclose any cause of action against the 1st Defendant/Objector.
3) That the Plaintiff is a member of the party who refused to participate in a lawful gubernatorial primary election of the party which was officially supervised by the 1st and 2nd Defendants at Osogbo Stadium on the 8/3/2022.
4) That there is no decision of the Supreme Court relating to the parties that the Plaintiff can enforce through this Court.
5) That this Court is not a Court of subordinate jurisdiction to Osun State High Court but rather a Court of coordinate jurisdiction.
6) That the instant suit is an abuse of Court process.
7) That the suit as presently constituted is grossly incompetent for failing to disclose reasonable cause of action at all against the 3rd Defendant.
8) That the main or principal claims of the plaintiff relate to alleged disobedience of the orders of Osun State High Court as they relate to authorized delegates eligible to vote as delegates in the party primary Election of the 1st Defendant and therefore non-justiciable.
9) That the reliefs of the Plaintiff does (sic) not fall under Section 251(1) of the 1999 Constitution.
10) That the Court lacks jurisdiction or vires to entertain the suit being a matter within the purview of internal affairs of the 1st Defendant.
11) That the limited jurisdiction conferred on this Court by Section 84(14) of the Electoral Act, 2022 does not in any manner or way imbue this Honourable Court with jurisdiction to entertain this suit.”
and thereafter proceeded to condense the grounds for or of the P,Os set out above into the following: –
“(1) Whether the Plaintiffs claims in this suit are cognizable under Section 84(14) of the Electoral Act, 2022?
(2) Whether the instant action and the claims of the Plaintiff therein do not constitute or amount to internal affairs of the 1st Defendant as a political party over which this Court has no jurisdiction to entertain or dabble into.
(3) Whether the instant suit can be said to disclose any reasonable cause of action over which the Plaintiff has the requisite locus standi to institute?
(4) Whether the orders made in Suit Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 can be enforced in this suit.”
It is also not in doubt that the reasons the lower Court relied on in striking out the case of the Appellant as incompetent and therefore that it lacked the jurisdiction to entertain the same are very apparent from the portions of its “judgment” which read thus. –
“On whether the claims of the Plaintiff are within the precinct of Section 84(14) of the Electoral Act, 2022 which is in pari materia with Section 87(9) of the Electoral Act, 2010, it is expedient to reproduce the provision of Section 84(14) of the Act which stipulates as follows:
“ … “
The provision of Section 84(14) of the Electoral Act, 2022 which is in pari materia with Section 87(9) of the Electoral Act, 2010 has been construed and pronounced upon in plethora of cases both by the appellate and apex Courts of the land. It is hoped that navigating a few of them will resolve the burning issue in this case.
…”
Going by the nature of claims of the Plaintiff and in view of the decisions of the appellate and Supreme Courts in the aforementioned cases, there is no gainsaying the fact that the Plaintiff is not an Aspirant who participated in the primary election conducted by the 1st Defendant at the Osogbo stadium, in Osun State on the 8/3/2022 and as such has no locus to lodge complaint against the said primary election.
The Plaintiffs case is therefore not cognizable and cannot be accommodated under Section 84(14) of the Act.
On the nature of complaints contemplated in Section 87(9) of the Electoral Act, 2010 which is in pari materia with Section 84(14) of the Electoral Act, 2022 and whether an alleged disobedience to Court order is envisaged as a ground of complaint over selection or nomination of a candidate of a political party for election, the appellate Court in its recent decision in APC Vs. OKPO & ORS (2020) LPELR-49766 (CA) pp 32 – 60, paras D-C, held as follows:
“ … “.
I am of the considered view that the ratio in the above decision applies to the instant case. By his claims, questions formulated in the originating summons and circumstances of this case as revealed in the affidavit evidence before the Court, the gravamen of the complaint/grievance of the Plaintiff relate to the alleged disobedience by the 1st and 2nd Defendants in conducting the governorship primary election held at Osogbo Stadium on the 8/3/2022 which they contended was held in disobedience to the various orders and judgment of the State High Court.
Further to the above, the Plaintiff is by this action urging the Court to declare him as the duly elected governorship candidate of the 1st Defendant as a way of enforcing the said orders and judgment of Osun State High Court upon which he substantially built his case.
Building a complaint on an alleged disobedience to Court order is not envisaged or contemplated in Section 84(14) of the Electoral Act, 2022.
The only complaint contemplated under the section has to do with the complaint by an aspirant who contested or took part in the primary election and who is complaining that the provisions of the Electoral Act and guidelines of his political party has not been complied with in the selection or nomination of a candidate of a political party for the election.
That is not the case of the Plaintiff in the instant case. He has not mentioned or referred the Court to a single section of the Electoral Act or the guidelines of the 1st Defendant that have been breached or which was not complied with by the Defendants.
The claims and reliefs of the Plaintiff are clearly outside and not within the purview of Section 84(14) of the Electoral Act 2022. The Plaintiff admitted in paragraphs 21 and 22 of his affidavit in support of the originating summons that he did not take part or participate in the election held by the 1st Defendant.
Instead of taking part in the primary election conducted by his political party and monitored by (INEC, the statutory body empowered to monitor such primary elections), the Plaintiff elected to abandon the primary conducted by the 1st Defendant and decided to participate in the primary election conducted by group of persons headed by the state acting chairman of the party where delegates allegedly backed by orders and judgment of the State High Court cast their votes. While relying on the orders and judgment of the Osun State High Court, the Plaintiff abandoned the primary election conducted by the National Executive Committee of the 1st Defendant held at the Osogbo township Stadium and opted to take part in the parallel primary election held at WOCDIF Osogbo Center organised and superintended by state acting chairman of the party and the delegates elected under the former State Executives led by Hon. Adagunodo. Refer to paragraphs 21 and 22 of the affidavit in support of the originating summons.
The Plaintiff is relying on the primary election conducted by the group led by the state acting chairman of the party supported by the delegates elected under the leadership of the former state executives of the party to found reliefs 2, 5 and 9 in the originating summons.
I am of the view that the primary election conducted by the State acting chairman of the party and delegates elected under the state executives of the party under the leadership of the former state chairman at WOCDIF Center, Osogbo is not recognised under the Electoral Act.
The said primary election which form the basis upon which the Plaintiff wants the Court to declare him as the duly elected governorship candidate of the 1st Defendant for the governorship election slated for July, 2022 was held in violation of the provisions of Sections 82(1) and (5) and 84(1) of Electoral Act 2022.
The primary election held at WOCDIF Center, Osogbo fail to meet the mandatory provisions or stipulations in Sections 82(1) & (5) and 84(1) of the Act which make it mandatory that statutory notice shall be given to the commission at least 21 days to the date of congress election for the purpose of nominating candidates for any elective offices specified under the Act.
Section 82(5) of the Act makes it mandatory and failure to notify the commission as stipulated under Section 82(1) of the Act renders such congress or primary election invalid.
Section 84(1) of the Act makes it a mandatory requirement that such primary election shall be monitored by the commission.
Although the Plaintiff tacitly alluded to it in paragraph 21 of his affidavit in support of the originating summons that the commission was notified and invited, however he failed to substantiate his claim by any credible evidence. Proof of issuance or service of statutory notice as envisaged under Section 82(1) & (5) of the Act is by credible evidence which is not left to mere conjecture as the Plaintiff has done in the instant case.
As a corollary to the above, holding or conducting primary election by state executive committee of a political party has been held to be illegal as Section 84(5) of the Electoral Act, 2022 which is pari materia with Section 87(4) of the Electoral Act, 2010 has been construed to donate such powers to the National working committee/National Executive Committee of a political party as the only body that can conduct such elections.
The provision of the above section of the Electoral Act was pronounced upon by the appellate Court in its recent decision in Mbata V. Umezurike & Ors (2019) LPELR-47331 (CA), Pp. 31 – 36, paras A – E, where it was held as follows:
” … “.
The Plaintiff confirmed and attested to this in his letter/petition of 10/3/2022 (Exhibit POB10) written to the National Chairman of the 1st Defendant, that the primary election held at WOCDIF Centre which produced him as candidate on the 8/3/2022 was conducted by a team or group of persons led by the state acting Chairman of the PDP in Osun State, who chaired the Congress.
The foregoing leaves no one in any doubt that the primary election held at the Osogbo Township Stadium which produced the 3rd Defendant was conducted by the National Executive Committee (NEC) or National working Committee (NWC) of the 1st Defendant while the parallel primary election held at WOCDIF Centre, Osogbo on 8/3/2022 was conducted by a group of individuals led by the State acting Chairman of the party in Osun State who chaired the Congress.
In line with the decisions of the appellate and Supreme Courts (supra), the parallel congress election held at WOCDIF Centre, Osogbo that produced the Plaintiff is illegal as well as invalid.
In addition to the foregoing, the mandatory interim order of injunction granted by Osun State High Court on 3/11/2020 converted to preservative order of mandatory injunction by the State High Court on 9/11/2020 which form the foundation and basis of other subsequent judgment and orders of the State High Court being relied upon by the Plaintiff has already been set aside by the Court of Appeal in Appeal No. CA/AK/349/2020 in the judgment delivered on 5/3/2021.
The relevant portion of the Judgment at pages 54, 55, 62 and 63 is reproduced hereunder;
” … “.
I am therefore of the considered view that placing reliance on the orders and judgment of the State High Court as done by the Plaintiff in this case is like erecting his edifice on an already collapsed or demolished foundation.
Besides, the Plaintiff is not even a party in any of the suits in respect of which the orders were made by the State High Court.
This goes to affect the locus standi of the Plaintiff over his interest or rights in the orders not made in his favour or against him.
This goes to raise the issue of his locus standi in founding his cause of action on the alleged disobedience to the orders and Judgment not made in his favour or against him.
I am of the firm view that the necessary parties whose presence are required when such orders are in issue are Hon. Adagunodo and the ward Executive Officers of the party who were allegedly elected as delegates on the 25/9/2021 in whose favour the orders and judgment were obtained.
The failure to join them and their absence in the instant case where the Plaintiff built his whole case on the orders and judgment made in their favour is fatal to the cause of action in the instant suit and same strips down the locus standi of the Plaintiff. This questions his right or propriety of founding the Plaintiffs cause of action on the alleged disobedience to orders and judgment made in suits in which he was not a party.
On whether the claims of the Plaintiff as revealed in the originating summons relate to internal affairs of the 1st Defendant as a political party over which this Court has no jurisdiction to entertain, I have examined the questions subscribed for determination and the reliefs of the Plaintiff in line with his complaints as contained in the affidavit in support of the originating summons.
It is not in doubt that the gravamen of the complaints of the Plaintiff is that the ward executive officers elected on the 25/9/2021 under the leadership of Honourable Adagunodo, the former state chairman of the party who by the orders and judgment of Osun State High Court were endorsed as the authentic delegates were not allowed to vote at the Governorship primary election held on the 8/3/2022 at the Osogbo Stadium in compliance with the orders and judgment of the State High Court.
The case of the Plaintiff is therefore founded and premised on the determination of who are the rightful or legitimate delegates entitled to vote in the recently concluded governorship primary election of the 1st Defendant in Osun State. The Plaintiff is by his claims asking the Court to determine who are the legitimate and lawful delegates who should have voted in the Governorship primaries of the 1st Defendant which held on the 8/3/2022 between those who participated and voted in the two parallel primaries conducted by the National Executive Committee of the 1st Defendant at the Osogbo Township Stadium and the one conducted by the State acting chairman of the party at the WOCDIF Centre, Osogbo in the State. In the recent case of PDP & Ors V. Ogundipe & Ors (2018) LPELR-43887(CA) pp 36-45, paras B-C, the appellate Court held thus:
” … “.
Coming from the foregoing and in tandem with the plethora of case law so far considered in this judgment, it is established beyond peradventure that the claims of the Plaintiff in the instant case relate to and have to do with domestic and internal affairs of the 1st Defendant (PDP) over which this Court lacks jurisdiction to entertain. I so hold.
On whether the instant suit discloses any reasonable cause of action to fetch the Plaintiff locus standi to institute same, the law is settled that in considering the issue of locus standi, it is the statement of claim or depositions in affidavit in support of originating summons that the Court should look at. More often than not, for the reason of being interlaced or interwoven, the issue of locus standi is merged into the cause of action although the two cannot be equated with the other. See …
It is settled that a Plaintiff will have locus standi only if he has special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. See …
It is instructive to note that a cause of action and standing to sue are linked to the issue of jurisdiction of a Court. If the Plaintiff does not have a cause of action or the standing to sue, the Court cannot properly assume jurisdiction to entertain the matter. See …
Coming to the instant case, the right or standing or capacity to sue or seek redress over issue of conduct of primary election in the selection or nomination of a candidate of a political party for election like in the instant case is provided for in Section 84(14) of the Electoral Act, 2022.
Plethora of case law so far considered in this ruling have indisputably established the position of the law that it is only an aggrieved aspirant who physically participated or contested in a primary election conducted by the National Executive Committee of his party that is imbued with locus standi to approach Court for redress. This can take place only where the provisions of the Electoral Act and the Constitution or guidelines of a political party is breached and/or not complied with.
In the instant case, the Plaintiff himself admitted that he did not participate or take part in the primary election conducted by the National Executive Committee of the 1st Defendant monitored by the 2nd Defendant at the Osogbo Township Stadium, Osun State on the 8/3/2022. The Plaintiff did not allege that any provisions of the Electoral Act and the Constitution or guidelines of the 1st Defendant was breached or not complied with.
It is therefore established beyond doubt that the Plaintiffs originating summons do not disclose any reasonable cause of action and the Plaintiff lacks the requisite locus standi to institute and maintain this suit.
Furthermore, the fulcrum of the Plaintiff’s case is the disobedience of the Defendants to the various orders made pursuant to these suits and in order to enforce compliance, this suit was filed. It is trite that it is a civil contempt of Court to refuse or neglect to do an act required by a judgment or order of Court. However, such judgment or order of Court cannot be enforced by a fresh suit such as this in order to enforce compliance. Disobedience to an order of Court is contemptuous in nature and there are remedies available to an aggrieved party. Such contemptuous act cannot be cured by instituting a new suit in order to enforce compliance. That is what this suit seeks to achieve.
See … In my humble and respectful opinion, the right thing for the Plaintiff to do is to revert back to the Courts that made those order(s) for purposes of enforcing same.
In conclusion, it is against the background of all that have been considered above that I resolve all the issues in this judgment in favour of the Defendants/Objectors against the Plaintiff.
To this end, I find merit in the notices of preliminary objection of the 1st and 3rd Defendants.
They are accordingly upheld.
The suit of the Plaintiff is incompetent and the Court lacks jurisdiction to entertain it. Same is hereby struck out for the reasons adduced in the body of this judgment.”
The position of the Appellant as can be seen under his issue 1, challenging the conclusion of the lower Court is to the effect that the lower Court was wrong to have found that he (Appellant) was not an aspirant at the primary election that produced the 3rd Respondent and that this amounted to delving into the merit of the case before the said Court. The position of the 3rd Respondent having regard to issue 1 he formulated for the determination of the appeal in its brief of argument, on the contrary is that the lower Court did not do as the Appellant complained.
The position of the Appellant as stated above, in my considered view shows that the Appellant did not appreciate the fact that for him to have a cause of action and or locus standi under the provisions of Section 84(14) of the Electoral Act, in the first place he needed to have deposed in the supporting affidavit to the originating summons, to facts showing that it was a primary conducted by the appropriate organ of the 1st Respondent that he (Appellant) participated in as an aspirant and not one conducted by any other group of persons under the headship of any person decided by the Osun State High Court in its various decisions set out and relied upon in the said originating summons and its supporting affidavit, as the proper person under whose chairmanship the election of delegates to conduct the primary election of 8/3/2022, should have been conducted. The Appellant having regard to the depositions in the supporting affidavit of his originating summons glaringly disclosed that he did not attend the primary election at which the 3rd Respondent was elected or nominated as the candidate of the 1st Respondent for the Osun State governorship election to hold in July 2022, just as the 3rd Respondent too was disclosed in the supporting affidavit not to have participated in the primary election at which the Appellant claimed that he was nominated as the candidate of the 1st Respondent for the said governorship election to hold in July, 2022. He even disclosed in the supporting affidavit to the originating summons in paragraphs 23 and 24 to the effect that upon becoming aware of the anomaly surrounding the primary election held at Osogbo Stadium whereat the 3rd Respondent emerged as the winner, he (Appellant) in writing protested to the National Leadership of the 1st Respondent. The situation portrayed by the Appellant in the supporting affidavit of the originating summons cannot amount to the lower Court delving into the merit of the case as the facts upon which the inference or inferences were made in the portion of its “judgment” quoted above, are facts contained in the supporting affidavit of the Appellant to his originating summons. This is more so as the inference or inferences was or were necessary for the resolution of the grounds of the P.O. dealing with grounds as to whether the Appellant’s action came within the confine of the situation provided for in Section 84(14) of the Electoral Act. The provision of Section 84(14) in question reads: –
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
True it is that the term “aspirant” is defined in Section 152 of the Electoral Act thus: –
“aspirant” means a person who aspires or seeks or strives to contest an election to a political office.”
I must however quickly state that the definition of “aspirant” in the Electoral Act, is no different from the definition stated in the Electoral Act 2010 (as amended) in its Section 156. This being the case, this Court like the lower Court simply has to accord and apply previous decisions of the Supreme Court in which the term “aspirant” has received judicial interpretation. This is what the doctrine of stares decisis, demands of all Courts lower to the Supreme Court, in hierarchy. There are many cases in which the Supreme Court has dwelled on the term “aspirant” as contained in Section 156 of the Electoral Act, 2010 (as amended). Two such cases decided in recent times by the Supreme Court are (i) AGUMA V. APC (2021) LPELR-55927(SC) and (ii) ANYAKORAH V. PDP (2022) LPELR-56876(SC). The cases under reference deal with “pre-election matters” (which the Appellant has glaringly portrayed the instant case on appeal to be) having regard to the depositions in the supporting affidavit of the originating summons particularly reliefs 4, 5, 6, 7, 8, and 9 therein.
The Supreme Court dwelling on the term “pre-election matter’ in the case of AGUMA V. APC (supra) per Jauro, JSC; stated thus:-
“…
Having ascertained the appellant’s cause of action, the question that readily comes to mind is whether the cause of action falls within the purview of Section 285(14) (a – c) of the Constitution (supra). For proper consideration of the question of whether the suit culminating into the instant appeal is a pre-election matter, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (a – c) of the Constitution (supra).
Section 285 (a – c) of the Constitution (supra) provides as follows:
“For the purpose of this section, “pre-election matter” means any suit by –
(a) aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
The first issue distilled by the appellant in the instant appeal is centered on whether the Court below acted correctly in its interpretation of Section 285 (a – c) of the Constitution (supra).
There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes. The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments. On the cardinal principle governing the interpretation of constitutional provisions, this Court, per Oguntade JSC, in the case of Rashidi Adewolu Ladoja v. INEC (2007) LPELR-1738(SC), (2007) 12 NWLR (Pt. 1047) 115 held that: ” … “…”
Again, in the case of ANYAKORAH V. PDP (supra), the Supreme Court dwelled on “pre- election matters” in these words: –
“Section 285 of the 1999 Constitution as altered by the Fourth Alteration Act 2017 is the fulcrum of 1st respondent’s preliminary objection. It is submitted that the instant appeal is caught up by Subsection 14 of the Section as interpreted by this Court inter-alia in APC V. UMAR (2019) 8 NWLR (PT 1675) 564, TOYIN V. MUSA & ORS (2019) LPELR-49328 (SC), ONYEKE V. PDP & ORS (2019) LPELR – 47810 (SC) and KUSAMOTU V. APC & ORS (2019) LPELR – 46802 (SC). Learned counsel also relies on one of the earlier decisions of this Court to show that the principle enshrined in Section 285 of the 1999 Constitution as altered predates the section.…
Even before the codification of the principle relating to pre-election suits in Section 285 of the 1999 Constitution (as altered), this Court in AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR-24564 (SC), a decision alluded to and relied upon by the 1st respondent/objector, defined a pre-election matter thus:-
“Now, a pre-election matter as the phrase connotes is a cause of action which predates and does not constitute any complaint against the actual conduct of an election … this Court has held that issues of nomination and sponsorship of party’s candidates for an election precede the election and are therefore pre-election matters.” (Underlining supplied for emphasis).
The 1999 Constitution (as altered) which overrides any other law or principle to the contrary enunciated by any Court, including the apex Court, has maintained the foregoing position of the Court on the principle when in Section 285 thereof it elaborately provides for what a pre-election suit connotes.
Section 285(14) of the said Constitution provides:-
“(14) For the purpose of this Section, “pre-election matter means any suit by –
(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
(b) An aspirant challenging the actions decisions or activities of Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or Any Act of the National Assembly regulating election in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the election or nomination of candidates and participation in an election.
(c) A political party challenging the actions, decisions, or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election time table for an election, registration of voters and other activities of the commission in respect of preparation for an election.
It is a precondition that for a claim to come squarely within the purview of the foregoing clear and unambiguous section, it must be instituted either by an aspirant, an aggrieved participant in the process or event of the party’s congresses or the nomination or sponsorship of the party’s candidate in a subsequent election or the political party, itself, whose candidate is being excluded by INEC from participating in the election.
In APC v IBRAHIM UMAR (supra), this Court in interpreting the subsection succinctly puts the principle at pages 570 – 571 of the law report as follows:
“It is also the grouse of the respondents/plaintiffs that as per the originating summons, they paid for nomination forms to participate in the ward congresses of the appellant (party) but they were stopped by the party officials taking part in the exercise, leading to their being disenfranchised and that it was sequel to that, that they approached the trial Court for redress.”
Learned senior counsel for the appellant appositely referred to the foregoing passage in support of his submission that the instant suit does not come under Section 285 of the 1999 Constitution and, therefore, not a pre-election matter. This Court is equally bound by its foregoing enunciation.
“ … ”.
…”
I cannot but reiterate that inasmuch as the Appellant by his own depositions in the supporting affidavit disclosed to the effect that the primary election at which he was nominated as a candidate of the 1st Respondent for the governorship election to be held in July, 2022 and which election was different from the one at which the 3rd Respondent was elected or nominated as a governorship candidate, he clearly did not show on the face of the originating summons and its supporting affidavit that he had any cause of action and a fortiori, locus standi under the provision of Section 84(14) of the Electoral Act, to have brought the instant pre-election suit. Indeed, the Appellant having erected his case substantially on the decisions of the Osun State High Court in the Suits set out in the originating summons and which were also alluded to in the supporting affidavit of the said originating summons, in my considered view would appear to have ignored the decision of the Supreme Court in the case of UFOMBA V. INEC (2017) LPELR-42079(SC) wherein it was held amongst others to the effect that a pre-election matter under Section 84(14) of the Electoral Act cannot be properly hinged or predicated on Court orders and that the success of a preliminary objection depending on the ground of success, can actually terminate a proceeding. Re-produced hereunder are the portions of the case under reference I consider relevant:
“The substance of the originating summons before the learned trial judge was the validity of the Primary election which produced the appellant as the winner thereof, but whose name was rejected by the 1st respondent in preference to the 3rd respondent.
The gist of the appellant’s action therefore, is the alleged failure of the 1st respondent, INEC, to accredit the appellant as the Governorship candidate of the 2nd respondent. In his Originating Summons, the appellant alleges that, rather than complying with the letter signed by Dr. Chris Uche, the 1st respondent accredited the 3rd respondent as Governorship flag bearer of the 2nd respondent; that neither this Court nor a political party is competent to change a candidate, whose name has been submitted to the Independent National Electoral Commission, as in the instant case.
At pages 524 and 525 of the record of appeal, the learned trial judge held the following and said:-
” … “
From the community reading of the concurrent judgments by the two lower Courts as reproduced, (supra), it is obvious that most of the claims by the appellant are not justiciable.
The word justiciable is defined at page 944 of the Black’s Law Dictionary Ninth Edition thus-
“A case or dispute properly brought before a Court of justice, capable of being disposed of judicially.”
It is the contention of the appellant that by virtue of the pronouncement of this Court in Ugwu V. PDP supra, his claims are justiciable. The respondents however hold the contrary view by submitting that the claims of the appellant are within the authority of Lado V. CPC (supra) and similar authorities.
The question that comes to mind at this juncture is very simple and I ask – What is the fundamental issue nominated for trial by the appellant?
A careful reading of the appellant’s Originating Summons and particularly the supporting paragraphs of the affidavit will show that the fundamental issue which is seeking determination relates to the personality or authority, who should have conducted the primary in question.
I am quick to say that neither Lado V. CPC (supra) nor Ugwu V. PDP (supra) dealt with the issue of who in between two personalities of the political parties involved, had authority to conduct the primary in issue. In CPC V. Lado (supra) a single authority was alleged to have conducted two parallel primaries while Ugwu V. PDP (supra) was a case of a primary and a re-run primary.
The real issue in the case at hand lies in the question who in between the two personalities had authority to conduct primary of the 2nd respondent.
Central to the determination of this issue is Section 87(9) of the Electoral Act 2010 (as amended). It provides as follows:-
“Notwithstanding the provisions of the 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, for redress.”
From the foregoing provision, it is now a settled principle of law clearly that, where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct, (of the primaries), the Courts have jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended), to entertain the complaints, if the conduct of the primary was in accordance with the party’s Constitution and Guidelines. The reason for this is obvious wherein political parties are not allowed to act arbitrarily but must be seen to obey their Constitution. See …
In the instant case, I have posed the same question times again whether it could be said that the claims/reliefs of the appellant fall squarely within the purview of the provision of Section 87(9) of the Electoral Act, 2010 (as amended)?
As rightly pointed out by the respondents, the 1st and 2nd reliefs sought by the appellant were predicated on the leadership of the respondent and or orders of a Court. Similarly, the affidavits of the parties reveal that membership of the 3rd Respondent was in issue, leadership of the 2nd respondent was at that time pending before this Court.
For all intents and purposes, it cannot be said conclusively that the appellant came before the Court to examine, if the primary election was conducted in accordance with the Party’s Constitution and Guidelines, as laid down in the case of Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) 55. The foregoing conclusion is anchored on the fact that the appellant, through his claims and reliefs, some of which concern non-justiciable intra-party disputes, could not be said to have been brought squarely within the provision of Section 87(9) of the Electoral Act, 2010 (as amended).
The appellant in the instant case has asked the Court to determine the validity of a primary election conducted under the supervision of a Deputy National Chairman, with the National Chairman having been restrained by an order of Court. He asked the Court, whether the 1st respondent was right to have continued to deal with the 4th respondent, notwithstanding that the 2nd term of office as Chairman of the 2nd respondent, had expired by exclusion of time.
By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership disputes in the 2nd respondent. This, clearly and as rightly submitted by the learned counsel for the 2nd and 4th respondents, is not an exception to Onuoha V. Okafor (1983) 2 SCNLR 244. Also in the locus classicus case of Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi JSC, in his lead judgment said: –
“The Courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred under Section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the Court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the Constitution and the Party guidelines.”
The interpretation of Section 87 of the Electoral Act is not meant to operate at large, so as to open a flood gate for litigations by political party members, who are dissatisfied with the conduct of the primaries elections.
The jurisdiction of the Courts, under this Section, is limited to examining, if the conduct of the primaries elections were strictly in accordance with the Party’s Constitution and Guidelines. See …
Therefore, what grants jurisdiction is non-compliance with Electoral Guidelines of the Political party and not its Constitution. … In his contribution to Emenike V. PDP’S case supra, Rhodes-Vivour, JSC made it very clear that limited jurisdiction would be invoked if primaries were not conducted in accordance with “Party’s Constitution and Guidelines.
As rightly submitted on behalf of the 2nd and 4th respondents, to consider whether election has been conducted in accordance with Party Constitution and Electoral Guidelines, the Courts cannot be invited to decide, who the leader of such a party is, as that would be beyond the jurisdiction of such Courts in the light of Onuoha V. Okafor (1983) 2 SCNLR 244.
Also, in the case of PDP V. Sylva supra this Court, restated clearly that the right to nominate or sponsor a candidate for an elective position is a domestic right of a political party. It follows therefore that the issues of leadership and membership are internal affairs of a political party. In other words, it is not open for a Court to inquire into, the membership/leadership of a political party.
In the case before us, from questions 1 and 2 as reflected on the face of the Originating Summons (at page 47 Vol. 1 of the record of Appeal), I did state earlier in this conducted judgment that the appellant was not questioning the conduct of primaries. He cannot therefore be operating within the ambit of Section 87(9) of the Electoral Act so as to clothe the Court with jurisdiction.
On the foregoing conclusion, the lower Court was very clear in its pronouncements at pages 710 and 711 of Volume 2 of the record of Appeal which were reproduced earlier in the course of this judgment. The finding by the lower Court, cannot in the circumstance be faulted. The matter at hand is “an intra-party affair.” The concept of the phrase was defined by this Court in PDP V. K.S.I.E.C. (2006) 3 NWLR (Pt. 968) 565 at 577 as –
“A dispute between members of the party inter se, or between a member on the one hand and the party on the other.”
Also in PDP V. Sylva (supra) at page 146 this Court held thus:-
“Consequently, the Court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections or to determine any dispute arising from the internal affairs of a political party.”
In arguing this issue further, the appellant has relied on the decisions of this Court in Lokpobiri V. Ogola (2016) 3 NWLR (Pt. 1499) 328, Jev V. Iyortyom (2014) 14 NWLR (Pt. 1428) 1428 at 612 – 613 and Gbileve V. Addingi (2014) 16 NWLR (Pt. 1433) 394. The authorities are to the effect that the Federal High Court has jurisdiction even if the Federal Government or its agencies are not parties to the suit or the claims against the Federal Government or its Agencies are ancillary. As rightly submitted by the learned counsel for the 2nd and 4th respondents, the binding facts of the foregoing cases, which also distinguishes them from this instant appeal, is that the main claims in the aforementioned cases, even though not directed at the Federal Government or its agency, were justiciable, as they fell within the purview of Section 87(9) of the Electoral Act,2010 (as amended).
It is pertinent to restate at this point that the appellant’s reliance on the case of Lokpobiri V. Ogola and the other related cases supra, is of no assistance to him. In the Lokpobiri’s case for instance, this Court re-affirmed the well known principle that, “in civil actions, the jurisdictions of a Court to hear and determine the plaintiffs action, depends on the claims in the Writ of summons and his pleadings.” On the other hand, the jurisdiction of the Court to hear and determine an election or election related matter, is statutory.
Contrary to the submissions of the learned counsel to the appellant, the Court’s position is that “When the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act, 2010 (as amended).”
Contrary also to the contention held by the learned counsel representing the appellant, the entire case of the appellant revolved on, who was the alter ego of the party between the Chairman, whose tenure was purported by the appellant to have expired and who, is said to have been restrained by an order of the Court. The controversy is not squarely on issues coming within the contemplation of Section 87(9).
With reference made to the case of Lokpobiri V. Ogola (supra), Onnoghen, JSC (as he then was) at p.365 held and said: –
“It is therefore my considered opinion when the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act (as amended).”
Furthermore, in the case of Anyanwu V. Ogunewe supra this Court, held that a complainant in such a case (that is under Section 87(9) must bring himself squarely within the confines of the provisions of Section 87(9) of the Electoral Act so as to say that: –
“He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of a political.”
In the case under consideration, it is obvious that the appellant’s case was not premised on “non-compliance with the provisions of the Electoral Act or the guidelines of a polity party.” Rather, it is predicated on non-compliance with the orders of a Court and or leadership tussle. It is patently clear therefore, that the principal reliefs are not within the purview or contemplation of Section 87(9) of the Electoral Act; thus depriving the Federal High Court of jurisdiction to entertain the suit as couched by the appellant.
In the case under consideration further, the principal reliefs sought and the basis which they are sought have nothing to do with Section 87(9) of the Electoral Act, 2010 (as amended). They also have nothing to do with Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, even though the 1st respondent is an agency of the Federal Government.
It is obvious therefore that the Federal High Court lacks the jurisdiction to entertain the suit.
The appellant’s counsel related copiously also to the case of Ugwu V. PDP supra. It was stated affirmatively in that case that, for such a suit under Section 87(9) to be competent, a plaintiff must be an aspirant, who participated in the primaries and his complaint must be on non-compliance with the Electoral Act or the guidelines of a party, not on non-compliance with the order of a Court.
Therefore, contrary to the submission by the learned counsel for the appellant, the lower Court was not shown to have acted in direct affront in any way on the decision of this Court in the case of Ugwu V. PDP (supra). The counsel, I hold must have misconceived the interpretation made by the lower Court.
I have said times without number that, as rightly submitted by the respondents, the appellant’s case in this appeal is predicated on non-compliance with the order of a Court, party leadership and membership of a political party.
The suit, in other words, was not predicated on non-compliance with the Electoral Act or the guidelines of a party. The suit in the circumstance cannot come under Section 87(9) of the Electoral Act. It is therefore not competent. The same principle held in Ugwu’s case was applied also in APGA V. Anyanwu (2014) 7 NWLR (Pt. 1407) 541.
The law is well settled that where a Court does not have jurisdiction over the principal claims, it cannot adjudicate over the suit. See Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) p. 517.
For all intents and purposes and on the totality of the said issue in question, I hold the firm view that the learned justices of the lower Court were on a solid ground, when they held that the trial learned judge was right in her judgment, that the appellant’s main claims were not within the purview of the provisions of Section 87(9) of the Electoral Act.
In other words, the lower Court came to the right conclusion when it affirmed the decision of the trial Court that the claims of the appellant (the claimant) are not justiciable.
The said issue is hereby resolved against the appellant.
…
However, and in view of the decision of this Court in Ugwu V. PDP. I have nevertheless determined the merit of the appeal. In that case, this Court per Aka’ahs, JSC had this to say at page 496 in a similar situation:-
“l agree with the learned counsel for the appellant that since the learned trial judge held that the action was non-justiciable and consequently declined jurisdiction which was endorsed by the lower Courts, an appeal to this Court to test the correctness of the two lower Courts’ decision cannot be said to be academic. The preliminary objection of the 1st respondent is overruled and struck out.”
On the totality of this appeal, same is sufficiently determined conclusively on the said issue wherein the appellant’s claims are not justiciable and the concurrent judgments of the two lower Courts are also affirmed by me.
The other issues formulated by the appellant are discountenanced.
This Court like the two lower Courts is also bereft of any jurisdiction and the appeal is hereby struck out.
No order is made as to costs.”
See also the case of GANA V. SDP (2019) LPELR-47153(SC).
The Appellant by his issue 3 formulated for the determination of the appeal has challenged the finding of the lower Court to the effect that his case was within the domestic affairs of the 1st Respondent and that the said Court therefore lacked the jurisdiction to entertain the same.
I am of the considered view, that the Appellant has glaringly not shown a proper understanding of his case as set up in the originating summons and its supporting affidavit in respect of his stance as stated above. This is because the supporting affidavit of the originating summons unequivocally show that the 1st Respondent was enmeshed in internal wrangling in relation to the delegates of the 1st Respondent in Osun State that were to participate/vote in the primary election of its governorship candidate for the July, 2022 governorship election in Osun State. This being the case, I simply do not see how it can be said that the lower Court did not properly appreciate the case of the Appellant and that it was wrong in finding that the Appellant’s case brought to the fore the internal dispute of the 1st Respondent in respect of its domestic affairs and which the lower Court in my considered view correctly held not to be justiciable. The law is settled, to the effect that a case hinged on the internal wrangling within the 1st Respondent in Osun State cannot properly found a cause of action under Section 84(14) of the Electoral Act.
Flowing from all that has been said before now is that the Appellant given his issues 1 and 3 formulated for the determination of the instant appeal, has failed to demonstrate that the decision of the lower Court finding his action to be incompetent, is wrong and that it (lower Court) therefore lacked the jurisdiction to entertain the said case and a fortiori this Court as an appellate Court has no jurisdiction to entertain the said case on the merit.
Appellant’s issues 1 and 3, are accordingly resolved against him.
In the final analysis, the instant appeal is unmeritorious and it fails. It is hereby dismissed. The decision of the lower Court striking out the Appellant’s case on the ground of its incompetence and its lack of jurisdiction to entertain the same is hereby affirmed.
Like, the lower Court did, I too do not award any costs in this appeal.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion reached therein.
The Appellant commenced the action in the lower Court by an Originating Summons dated the 14th of March, 2022 and filed on the 18th of March, 2022 and wherein he posed the following questions for determination:
1. Whether in view of the provisions of Sections 1 (1) and 221 and 287 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 84 of the Electoral Act, 2022 and the doctrine of Rule of Law, the Respondents can flagrantly disobey and refuse to follow lawful orders and judgments of Courts made by the High Court of Justice of Osun State in Suit No. HIK/25/2022 between: Honourable Olasoji Adagunodo Vs PDP & 3 Ors on 3rd of November, 2022 and judgment in the same suit entered by Honourable Justice S. O. Falola J., on 9th of November, 2020 and the orders and judgment made in Suit No. HIF/36/2021 and in Suit No. HIJ/6/2022 between: Olasoji Adagunodo & 30 Ors Vs PDP & Anor on 22nd Of November, 2021 and in Suit No: HIJ/6/2022 between: Adedokun Ademola & 30 Ors Vs PDP & Anor and the mandatory Order of Injunction made in the same suit on the 10th of March, 2022, by Honourable Justice (Dr) A. A. Aderibigbe J. of Osun State Judiciary, sitting at Ile-Ife and Ijebu-Jesha respectively.
2. Whether the first and second Respondents could go ahead contrary to these judgments and orders of Courts to purport to hold and/or conduct primary elections for the selection of its governorship candidate on the 8th of March, 2022, by using any delegate list order than the delegates that emerged from the delegate elections conducted on the 25th of September, 2021, by Hon. Olasoji Adagunodo Executives of the first Respondent.
3. Whether the first and second Respondents could exercise any discretion under the provisions of Section 84 of the Electoral Act 2022 or exercise any powers pursuant to the same section of the Electoral Act in purporting to organise a primary election for the election of the governorship candidate of the first Respondent in violation of extant, valid, lawful and constitutional orders contained in the Judgments and rulings of the Osun State High Court in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022, which were competently handed down by Honourable Justice S. O. Falola and Honourable Justice (Dr) A. A. Aderibigbe.
4. Whether the second Respondent in purported exercise of its statutory powers and/or duties conferred by the provisions of Section 84 (1) of the Electoral Act, 2022, can go ahead to monitor primary elections held and/or conducted by a faction of the first Respondent in Osun State, that has been held to be illegal by valid Judgments and orders of Courts of competent jurisdiction in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.
5. Whether the second Respondent purporting to exercise its powers and/or duties under the provisions of Section 84 (1) of Electoral Act, 2022, can refuse, neglect and/or fail to abide by lawful and legal orders of Courts of competent jurisdiction to monitor the party primaries of the first Respondent conducted on the 8th of March, 2022, for the election of Osun State Governorship candidate for the party as ordered and sanctioned in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively and turn around to want to rely on its disobedience and take advantage of same as the ground for non-recognition of the party primaries conducted on the same 8th of March, 2022 at WOCDIF Centre Osogbo, where the Appellant was duly elected as the Governorship candidate of the first Respondent for the Osun State Governorship election in July, 2022.
6. Whether all the Respondents acting jointly and/or severally while in contravention of competent Courts as handed down in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, can go ahead to hold party primaries on the 8th March, 2022, where all delegates that the Courts in the above suits had recognised were disallowed and whether this was not clearly against the provisions of the Constitution, Electoral Act and Rule of Law.
7. Whether the Appellant who was duly elected at the party primary held on 8th March, 2022, in Osogbo as the candidate of the first Respondent for the Osun State Governorship election in July, 2022, ought not to be so recognized, approved and accepted having regard to the Judgments and orders in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.
Consequent on resolution of the above questions, the Appellant sought the following reliefs from the lower Court:
1. A declaration that having regard to the provisions of Sections 1 (1) and 3, 221 and 287 (1) of the Constitution of the Republic of Nigeria 1999 (as amended) and Section 84 of the Electoral Act, 2022, and the doctrine of Rule of Law, the Respondents jointly and/or severally cannot and should not be allowed to disobey the judgments and lawful orders of Courts of competent jurisdiction as evidenced in suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively.
2. A declaration that the first and second Respondents, given the existence of judgments and orders in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, are obligated under the Constitution and the law to recognise, give effect to and sanction the primary election conducted on the 8th of March, 2022, in WOCDIF Centre in Osogbo, Osun State in which the Appellant was overwhelmingly elected as the Governorship candidate of the first Respondent for the Osun State Governorship election scheduled for July, 2022.
3. A declaration that the purported primary election held on 8th of March, 2022, at Osogbo Stadium, Osun State, where the third Respondent purportedly emerged as the candidate of the first Respondent for the Governorship election in July, 2022, having been held and conducted in flagrant violation of lawful, extant and binding Judgments and orders delivered on diverse dates is illegal, unconstitutional and a wilful affront to the rule of law and therefore null and void.
4. A declaration that the Certificate of Return purportedly issued by the second Respondent to the third Respondent, which was a product of their flagrant disobedience to lawful orders and judgments on Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, is null and void and liable to be set aside.
5. A declaration that the Appellant who was duly elected by the primary election conducted on 8th of March, 2022, at WOCDIF Centre, Osogbo, Osun State, where he purportedly emerged as the Governorship candidate of the first Respondent for the Governorship election of July, 2022, having been carried out and conducted in accordance with valid judgments and orders in Suits Nos. HIK/25/2020, HIF/36/2021 and HIJ/6/2022 respectively, is valid, lawful and Constitutional.
6. An order nullifying the primary election purportedly conducted on the 8th of March, 2022, at the Osogbo Stadium, Osun State, where the third Respondent purportedly emerged as the Governorship candidate of the first Respondent in of the Osun State Governorship election slated for July, 2022.
7. An order directing the first Respondent to withdraw and cancel the Certificate of Return it issued to the third Respondent and to issue and give to the Appellant a Certificate of Return in his stead.
8. Injunction restraining the second Respondent from accepting, recognising and/or accord any right to the third Respondent as the duly elected Governorship candidate of the first Respondent for the Osun State Governorship election.
9. An order directing the second Respondent to recognize, accept and deal with the Appellant as the duly elected Governorship candidate of the first Respondent for the Osun State Governorship election scheduled for July, 2022 or any other time.
The case of the Appellant in support of the prayers sought on the Originating Summons was that one Honourable Olasoji Adagunodo was the Chairman of the first Respondent in Osun State up to September, 2021 when he was purportedly removed due to some internal wrangling within the party. It was his case that Honourable Olasoji Adagunodo commenced an action to challenge his purported removal and this was in Suit No HIK/25/2020 – Olasoji Adagunodo Vs PDP & 3 Ors – and the matter went before Honourable Justice S. O. Falola sitting at Ikirun Division of the Osun State High Court. It was his case that the Court granted an order of mandatory interim injunction restraining the defendants in the case from removing Honourable Olasoji Adagunodo was the Chairman of the first Respondent in Osun State and/or expelling him from the party and the Court further directed that all actions taken against him should abate and that the Court subsequently made a preservative order of mandatory injunction on the 9th of November, 2021 reaffirming its earlier orders.
It was the case of the Appellants that when the defendants in that action were dillydallying with obeying the orders made in Suit No. HIK/25/2020, Honourable Olasoji Adagunodo filed another suit by an Originating Summons in Suit No. HIF/36/2021 – Honourable Olasoji Adagunodo Vs PDP & Anor- and the High Court of Osun State presided over by Honourable Justice Dr. A. A. Aderibigbe, on 22nd November, 2020 gave judgment in favour of Honourable Adagunodo wherein it, amongst other things, upheld and approved the conduct of Congress elections of the party carried out by the Honourable Olasoji Adagunodo led State Executives. It was his case that the Honourable Olasoji Adagunodo led State Executives of the first Respondent conducted elections whereat people were elected into the vacancies in the 215 wards of Osun State on the 25th September, 2021 and that when the first and second Respondents were reluctant to recognise the Ward Executive Officers elected in the Congress elections of the 25th of September, 2021, the Ward Executive Officers filed a representative action in Suit No HIJ/6/2022 – Mr. Adedokun Ademola & 30 Ors vs PDP & Anor.
It was the case of the Appellant that on the 3rd day of March, 2022 Honourable Justice Dr. A. A. Aderibigbe J sitting at Ijebu-Jesha Division of the Osun State High Court granted an order of mandatory interim injunction in Suit No. HIJ/6/2022 recognising all the Ward Executive Officers elected on the 25th of September, 2021 and also ordered that the 215 Ward Executive Officers must be allowed to vote at the Governorship primaries of the first Respondent scheduled for the 8th of March, 2022. It was his case that by reason of the continued recalcitrant attitude of the first and second Respondents, the High Court of Osun State in Suit No HIJ/6/2022, on the 10th of March, 2022, issued mandatory interim orders validating all the actions taken by the Honourable Olasoji Adagunodo led State Executives and restraining the first and second Respondents from recognising any other Governorship Primary Election of the first Respondent other than the one conducted and organised at the WOCDIF Osogbo Centre and also setting aside all actions or steps taken by the first and second Respondents in violation of the earlier judgments and orders given on 22nd November, 2021 and 3rd of March, 2022, respectively.
It was the case of the Appellant that sometime in November, 2021 the first Respondent published its timetable and schedule of activities for its primary elections for the Osun State gubernatorial election and nomination of candidates and in the said notice, the sale of nomination forms and expression of interest was fixed for 21st November, 2021 while the last day for the submission of the form was fixed for the 17th December, 2021. It was his case that he duly paid for and obtained the nomination form on 10th of December, 2021, and submitted same on 17th December, 2021, and that at the close of the submission of expression of interest form, six candidates had collected and submitted the form and these were (i) Dr. Akin Ogunbiyi, (ii) Alhaji Fatai Akindade, (iii) Prince Dotun Babayemi, (iv) Mr. Dele Adeleke, (v) Honourable Sanya Omirin, and (vi) Senator Ademola Adeleke. It was his case that the first Respondent conducted a screening for all the candidates on the 12th of January, 2022 and all the six candidates were cleared to take part in the gubernatorial primaries which was fixed for 8th of March, 2022.
It was the case of the Appellant that in flagrant disobedience to the judgments and the several orders of the High Court of Osun State in Suit No. HIK/25/2020, Suit No. HIF/36/2021 and Suit No. HIJ/6/2022, the first Respondent, on the eve of the governorship primary election, caused to published in the Nigerian Tribune Newspaper the names of the delegates that were to vote at the primary election but totally omitted the 215 Ward Executive Officers elected at the Congress elections conducted by the Honourable Olasoji Adagunodo led State Executive. It was his case that in full compliance with the judgments and the several orders of the High Court of Osun State in Suit No HIK/25/2020, Suit No HIF/36/2021 and Suit No HIJ/6/2022, Governorship primary election was held on the 8th of March, 2022, at WOCDIF Centre Osogbo, and in respect of which the second Respondent was duly notified and invited to monitor. It was his case that at the end of the primary election, he was elected the winner having secured 1871 votes.
It was the case of the Appellant that in total disobedience to the judgments and the several orders of the High Court of Osun State in Suit No. HIK/25/2020, Suit No HIF/36/2021 and Suit No. HIJ/6/2022, the first Respondent purported to conduct another Governorship primary election at Osogbo Stadium on the same date and whereat it was announced that the third Respondent won. It was his case that he protested this anomaly to the national leadership of the first Respondent by a letter of 10th March, 2022, which was duly received but up to the time of this action nothing positive has been done about the protest and rather the first Respondent proceeded to a Certificate of Return to the third Respondent. It was his case that the lower Court possessed the vires, jurisdiction and authority to nullify and set aside any action taken by anybody in flagrant disobedience to the judgments and the several orders of the High Court of Osun State in Suit No HIK/25/2020, Suit No. HIF/36/2021 and Suit No. HIJ/6/2022, which were duly served on the first and second Respondents. It was his case that no person or authority has the right to treat orders of Court with disdain and that where this happens, as in this case, the lower Court possessed disciplinary powers to undo whatever was wrongly done contrary to the orders of the Court.
Upon being served with the processes, the first Respondent and third Respondent filed separate notices of preliminary objection on several grounds challenging the jurisdiction of the lower Court to entertain the claims of the Appellant and the competence of the entire action. The lower Court took arguments on the preliminary objections. The lower Court aptly summarised the complaints of the first Respondent and third Respondent on their notices of preliminary objection under four heads namely:
i. Whether the claims of the Appellant are cognisable under the provisions of Section 84(14) of the Electoral Act, 2022.
ii. Whether the present action and the claims of the Appellant did not constitute or amount to matters pertaining to the internal affairs of the first Respondent, a political party, over which the Court has no jurisdiction to entertain or dabble into.
iii. Whether the instant suit can be said to disclose any reasonable cause of action over which the Appellant has the requisite locus standi to institute an action.
iv. Whether the orders made in Suit Nos. HIK/25/2020, Suit No HIF/36/2021 and Suit No HIJ/6/2022 can be enforced by in this action.
In its deliberations in the judgment delivered, the lower Court, relying on several case law authorities found that the case of the Appellant on the Originating Summons and the affidavit support did not come within the provisions of Section 84(14) of the Electoral Act, 2022 which gives the Court limited jurisdiction in the affairs of a political party and that it thus lacked the requisite jurisdiction to entertain the matter. The lower Court, relying on several provisions of the Electoral Act, 2022, also found that the parallel Governorship Primary Election held at WOCDIF Center on the 8th of March, 2022 and which produced the Appellant as the winner was illegal and invalid. The lower Court further found that part of the orders of the Osun State High Court upon which the Appellant erected his case had been set aside by the Court of Appeal and were thus no longer viable and that the Appellant, not being a party to any of the High Court cases lacked the locus standi to seek their enforcement. It was the further finding of the lower Court that the dispute which formed the gravamen of the High Court cases, and upon which the Appellant predicated his present action, had to do with a leadership tussle within the first Respondent, a political party, and that this was an issue over which the Court lacked jurisdiction. The lower Court concluded its findings by holding that the action of the Appellant did not disclose a reasonable cause of action as the option opened to him for the alleged disobedience of the judgment and several orders of the High Court of Osun State was to commence contempt proceedings against the Respondent and not to commence a fresh action. The lower Court upheld the notices of preliminary objection of the first Respondent and third Respondent and it struck out the action of the Appellant.
The complaints of the Appellant in this appeal are (i) that the lower Court went beyond the notices of preliminary objection of the first Respondent and third Respondent and delved into and made findings on the merit of the substantive case of the Appellant; (ii) that the lower Court was in error in coming to the conclusion that the Appellant lacked the requisite locus standi to commence and maintain the action; (iii) that the lower Court was also in error when it found that the case of the Appellant was in respect of issues dealing with the internal affairs of the first Respondent and over which it had no jurisdiction; and (iv) that the lower Court misconstrued the case of the Appellant by holding that it had to do with the enforcement of the several orders made by the High Court of Osun State.
Reading through the judgment vis-a-vis the complaints of the Appellant, I concede that the lower Court indeed exceeded its brief on the notices of the preliminary objection of the first Respondent and third Respondent and delved into and made findings on the merit of the substantive case of the Appellant. The finding made by the lower Court that the parallel Governorship Primary Election held at WOCDIF Center on the 8th of March, 2022 and which produced the Appellant as the winner was illegal and invalid as well as the finding that part of the orders of the Osun State High Court upon which the Appellant erected his case had been set aside by the Court of Appeal and were thus no longer viable, were matters touching on the merit of the substantive case of the Appellant.
The law is trite that as a matter of fairness and justice to the parties before it, the Court must refrain from touching upon the substantive issues at the precursory stage. Pronouncement on the substantive matter before the Court at the preliminary stage is ultra vires the powers of the Court – Securities and Exchange Commission Vs Ifegwu (2021) 8 NWLR (Pt 1778) 326, Haladu vs Access Bank Plc (2021) 13 NWLR (Pt 1794) 434, Edogiawerie Vs Irabor, In Re: Edogiawerie (2022) 3 NWLR (Pt 1818) 555. In CIL Risk & Asset Management Ltd vs Ekiti State Government (2020) 12 NWLR (Pt 1738) 203, the Supreme Court said thus:
“A Court is required to avoid making pronouncements or deciding issue at the preliminary stage which would touch on, or decide the issues to be decided in the substantive suit. A Court should not decide or determine the substantive matter while considering or dealing with issues at the preliminary or interlocutory stage of the case. The effect of the unacceptable practice of the Court making positive pronouncements touching on the substantive issue in matters is that it prejudges the real matter even before evidence and argument of counsel are taken on the substantive suit and that would amount to a breach of fair hearing of the party affected. It is the duty of the trial Court when dealing with interlocutory matter to avoid making statements giving the impression that it has made up its mind on the substantive issue on trial before it. Justice must not only be done, but it must be seen to have been done.”
The option open to a trial Court where the issue for determination in a substantive matter overlaps into the resolution of a preliminary objection is to postpone the resolution of the preliminary objection to the time of final determination of the substantive suit – Haladu Vs Access Bank Plc supra. This is what underscores the wisdom in the directive that where a defendant or respondent to an action commenced by the Originating Summons files a motion challenging the competence of the action, as in the present case, a trial Court should hear both the motion and the Originating Summons together, and rule on and determine the motion first before proceeding, if need be, to render its decision on the Originating Summons – Amadi Vs Nigeria National Petroleum Corporation (2000) NWLR (Pt 674) 76 at 100, Senate President vs Nzeribe (2004) 8 NWLR (Pt 878) 251 at 274, Ossai vs Wakwah (2006) 4 NWLR (Pt 969) 208, Inakoju vs Adeleke (2007) 4 NWLR (Pt 1025) 423, Central Bank of Nigeria Vs Dr. B. O. Akingbola & Anor (2019) LPELR-48807 (SC), Okobi vs Okobi (2020) 1 NWLR Pt 1705) 301 and Gbadebo Vs Oyenitun (2021) LPELR-52928(CA). In Attorney General, Lagos State Vs Attorney General, Federation 2014) 9 NWLR (Pt 1412) 217 at 263F-G, the Supreme Court made the point thus:
“When a preliminary objection is raised in an action such as the present one commenced by originating summons, it is always better to take the preliminary objection with the substantive case so that if the objection succeeds, the case or action is terminated in limine. If the objection fails however, then the Court will proceed to determine the substantive action on its merit.”
The above said, however, the other findings made by the lower Court dealt with the issues raised on the notices of preliminary objection, and thus this noted blip on the part of the lower Court in exceeding the confines of the notices of preliminary objection and making pronouncements on some aspects of the substantive suit does not necessitate the reversal of the judgment of the lower Court. It is a trite principle that it is not every error of law that is committed by a trial or Appellate Court that justifies the reversal of the particular Court’s judgment on appeal – Adegbanke Vs Ojelabi (2021) LPELR-54992(SC), Berende Vs Federal Republic of Nigeria (2021) LPELR-54993(SC), State Vs Usman 2021) LPELR-55202(SC).
As stated earlier, the lower Court found that it had no jurisdiction to entertain the claims of the Appellant because it raised issues that were an intra-party matter and they did not come within the confines of the provision of Section 84(14) of the Electoral Act, 2022 that grants the Court limited jurisdiction in such matters. Secondly, the lower Court found that the Appellant lacked the requisite locus standi to commence and maintain the action. Thirdly, the lower Court found that the action did not disclose a reasonable cause of action. I intend to comment on these three findings of the lower Court.
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority – Abacha Vs Federal Republic of Nigeria (2014) 6 NWLR (Pt 1402) 43, Nyame vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1772) 289, Statoil (Nig) Ltd Vs Inducon (Nig) Ltd (2021) 1 NWLR (Pt 1774) 1, National Union of Road Transport Workers vs Mahe (2021) 13 NWLR (Pt 1793) 276, Muyideen Vs Nigerian Bar Association (2021) 13 NWLR (Pt 1794) 393. It is the blood, life wire, bedrock and foundation of adjudication and without it the labourers therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain – Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552, Securities and Exchange Commission Vs Ifegwu (2021) 8 NWLR (Pt 1778) 326, Ihim vs Maduagwu (2021) 5 NWLR (Pt 1770) 584, Bot Vs Jos Electricity Distribution Plc (2021) 15 NWLR (Pt 1798) 53.
It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this – Attorney General Federation Vs Abubakar (2008) 16 NWLR (Pt 1112) 135, Elelu-Habeeb vs Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Bot Vs Jos Electricity Distribution Plc supra, Crestar Integrated Natural Resources Ltd Vs The Shell Petroleum Development Company (Nig) Ltd (2021) 16 NWLR (Pt 1800) 453.
The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Crestar Integrated Natural Resources Ltd Vs The Shell Petroleum Development Company (Nig) Ltd supra. It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Adama vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd Gte (2020) 13 NWLR 1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd vs The Owners, The MT Bata (2022) 3 NWLR 9Pt 1817) 367.
Reading the Originating Summons and its accompanying processes and documents together, it is clear that the dispute leading up to this case arose from the conduct of the Governorship primaries of the first Respondent for the selection of its candidate for the Osun Governorship Election. The Appellant complained that the Respondents did not comply with the judgment and several orders made by the High Court of Osun State in Suit No HIK/25/2020, Suit No. HIF/36/2021 and Suit No. HIJ/6/2022 in compiling the list of the delegates to vote at the primaries and in the general conduct of the primaries by not recognising the actions of the Honourable Olasoji Adagunodo led State Executive which had been sanctioned and validated by the High Court of Osun State. The Appellant thus sought for the setting aside of the Governorship primaries conducted by the first Respondent and monitored by the second Respondent and whereat the third Respondent was declared winner, and for the upholding of the Governorship primaries conducted elsewhere where he was declared winner, in its stead.
The lower Court was very correct when it classified the complaints of the Appellant as matters pertaining to an intra-party dispute of the first Respondent. An intra-party dispute has been defined as a dispute between members of a political party inter-se or between a member or members, on the one hand, against the political party, on the other hand – Peoples Democratic Party Vs Kwara State Independent Electoral Commission (2006) 3 NWLR (Pt 968) 565, Kalgo Vs Faruk (2008) LPELR-4495(CA), Labour Party Vs Oyatoro (2016) LPELR-40135(CA), Dahiru vs All Progressives Congress (2017) 4 NWLR (Pt 1555) 218, Peoples Democratic Party Vs Badaire (2020) All FWLR (Pt 1024) 170. The complaints the Appellant put up for adjudication by the lower Court in his originating processes was a dispute between him and his political party, the first Respondent, and these come squarely within the above definition of intra-party dispute.
The position of the law on the jurisdiction of the Courts to hear and determine complaints on matters pertaining to intra-party disputes of political party has been set and settled by the Supreme Court. In the case of Peoples Democratic Party Vs Badaire supra, this Court, relying on several decisions of the Supreme Court, reiterated this position of the law thus:
“The law, as a general rule, is that an intra – party matter is entirely within the party’s internal affairs, exclusively and completely outside the province or competence of Courts or Tribunals – Bakam Vs Abubakar (1991) 6 NWLR (Pt 199) 564, Abdulkadir Vs Mamman (2003) 14 NWLR (Pt 839) 1, Jang Vs INEC (2004) 12 NWLR (Pt 886) 46, Amaechi Vs INEC (2007) 9 NWLR (Pt 1040) 504, Ugwu vs Ararume (2007) 12 NWLR (Pt 1048) 367 at 499 500, Pam Vs All Nigeria Peoples Party (2008) 4 NWLR (Pt 1077) 224, Ehinlanwo Vs Oke (2008) 16 NWLR (Pt 1113) 357, Nobis-Elendu Vs INEC (2015) 16 NWLR (Pt 1485) 197, Shinkafi Vs Yari (2016) 7 NWLR (Pt. 1511) 340. An exception provided by statute to this general rule is contained in Section 87 (9) of the Electoral Act, 2010 (as amended) and which reads:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party 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 FCT, for redress.”
This provision has been interpreted as by the Courts to invest both the Federal High Court and the State High Court with jurisdiction to entertain complaints regarding the selection or nomination of a candidate of a political party for election – Salim Vs Congress for Progressive Change (2013) 6 NWLR (Pt 1351) 501, Gassol Vs Tutare (2013) 14 NWLR (Pt 1374) 225, Ahmed vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is however, a very narrow and limited jurisdiction which has not derogated from the non-justiciability of a political party’s wide discretionary powers of choosing one of its members for the elective office – Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, Wushishi Vs Imam (2017) 18 NWLR (Pt 1597) 175, Peoples Democratic Party Vs Ezeonwuka (2018) 3 NWLR (Pt 1606) 187, Maihaja Vs Gaidam (2018) 4 NWLR (Pt 1610) 454 and Angadi Vs Peoples Democratic Party (2018) 15 NWLR (Pt 1641) 1.
… the Courts are unanimous that to come within the limited jurisdiction conferred by Section 87(9) of the Electoral Act, the subject matter of the dispute must relate to the selection or nomination of a candidate for election by a political party and the complaint must be in respect of non-compliance with the provisions of Electoral Act and the Guidelines of a political; the Federal High Court and the State High Court have no jurisdiction to entertain any other subject matter or complaint under the provisions of the section – Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386, Wushishi Vs Imam supra, Peoples Democratic Party Vs Ezeonwuka supra, Angadi Vs Peoples Democratic Party supra, Nduul Vs Wayo (2018) 16 NWLR (Pt 1646) 548. Thus, the Courts have stated that the conditions precedent for bringing an action under Section 87 (9) of the Electoral Act are (i) there must first have been a primary for the selection or nomination of a candidate by a political party; (ii) the exercise for the primary must have been in respect of an election; (iii) the complainant must be an aspirant who took part or ought to have taken part in his political party’s primaries and it must be shown that the political party did not comply with a provision of Electoral Act and/or its Guidelines for the nomination or selection done – Ikedife Vs APGA (2014) LPELR-22921(CA), Ukachukwu Vs Peoples Democratic Party (2014) 17 NWLR (Pt 1435) 134, Maihaja Vs Gaidam supra, All Progressives Congress Vs Karfi (2018) 6 NWLR (Pt 1616) 479 and Ugwuegede Vs Asadu (2018) 10 NWLR (Pt. 1628) 460.”
This position of the law has not changed and it was reiterated by this Court in the cases of Ukut Vs All Progressives Congress (2019) LPELR-47203(CA), All Progressives Congress Vs Okpo (2020) LPELR-49766(CA), Peoples Democratic Party Vs All Progressives Congress (2020) 9 NWLR (Pt 1730) 425 and by the Supreme Court in the cases of Eze Vs Peoples Democratic Party (2019) 1 NWLR (Pt 1652) 1, All Progressives Congress Vs Moses 2021) 14 NWLR (Pt 1796) 278, Aguma Vs All Progressives Congress (2021) 14 NWLR (Pt 1796) 351, Jegede Vs Independent National Electoral Commission (2021) 14 NWLR (Pt 1797) 409.
The provision of Section 87 (9) of the Electoral Act 2010 (as amended) referred to in the above quoted judgment is exactly the same as the provision of Section 84(14) of the Electoral Act, 2022, the provision applicable to this present case. It is trite that where the provisions of a statute or section of a statute are in pari materia, light may be thrown on the meaning of such a provision of a statute or section which is in pari materia by referring to a previous decision of a competent Court where similar provisions had been previously considered – Attorney General, Abia State Vs Attorney General, Federation (2005) 12 NWLR (Pt 940) 452. Where that previous decision was given by a Court higher up in the judicial hierarchy then it becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo Vs Onoh (1984) 1 SCNLR 1, University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige Vs Obi (2006) 14 NWLR (Pt 999) 1.
This Court is thus bound to follow the above referred decisions on the interpretation of Section 87(9) of the Electoral Act 2010 (as amended) in interpreting the provision of Section 84(14) of the Electoral Act 2022.
It is obvious that the complaint of the Appellant in his Originating Summons and affidavit in support is not that the first Respondent did not comply with the provisions of the Electoral Act or its Guidelines for nomination or election at the Governorship Primary Election in question. The complaint is that the Respondents did not comply with the judgment and several orders made by the High Court of Osun State in Suit Nos HIK/25/2020, Suit No HIF/36/2021 and Suit No HIJ/6/2022 in conducting the primary election. The Courts have held that such a complaint did not come within the provision of Section 87 (9) of the Electoral Act 2010 (as amended), and, by extension, the provision of Section 84(14) of the Electoral Act, 2022 – Ufomba Vs Independent National Electoral Commission (2017) 13 NWLR (Pt 1582) 175, Ochala Vs John (2019) LPELR-47001(CA), All Progressives Congress Vs Okpo (2020) LPELR-49766(CA). The finding of the lower Court it had no jurisdiction to entertain the matter cannot thus be faulted.
Going to locus standi, in general parlance, it means a recognized position or standing. In law, it means a place of standing in Court or right to appear in Court. Locus standi or standing to sue is defined as the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi is the right of appearance in a Court of justice or before a legislative body on a given question – Adetono Vs Zenith International Bank Plc (2011) 18 NWLR (Pt 1279) 627, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511, Ararume Vs Ibezim (2021) 8 NWLR (Pt 1779) 543. The doctrine of locus standi was developed to protect the Court from being used as a playground by professional litigants and busybodies who have no real stake or interest in the subject matter of the litigation they wish to pursue – Amah Vs Nwankwo (2007) 12 NWLR (Pt. 1049) 552, Taiwo Vs Adegboro (2011) 11 NWLR (Pt. 1259) 562, Radiographers Registration Board of Nigeria Vs Medical & Health Workers Union of Nigeria (2021) 8 NWLR (Pt. 1777) 149.
The Courts have stated that a party seeking to establish locus standi must show (a) a legal or justifiable right; (b) sufficient or special interest adversely affected; and (c) a justifiable cause of action – Attorney General, Kaduna State Vs Hassan (1985) 2 NWLR (Pt. 8) 483, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba (2011) 16 NWLR (Pt. 1272) 154, Charles vs Governor of Ondo state (2013) 2 NWLR (Pt. 1338) 294. In other words, for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in a Court of law. In other words, there must be a nexus between the party and the disclosed cause of action concerning his rights or obligations – Senator Abraham Adesanya Vs The President of the Federal Republic of Nigeria (1981) 2 NCLR 358, Imade Vs Military Administrator, Edo State (2001) 6 NWLR (Pt 709) 478, Taiwo Vs Adegboro supra, Adetono Vs Zenith International Bank Plc supra, Aguma Vs All Progressives Congress (2021) 4 NWLR (Pt 1796) 351.
It has been settled by a long line of cases that in determining the locus standi of a party, a trial Court must have regard to, and only to, the originating processes by which the action was commenced or the claim was made by that party, that is the writ of summons and the statement of claim or counter-claim, in an action commenced by a writ of summons, or originating summons or originating motion. A trial Court cannot go outside the originating processes in determining the issue of locus standi of a claimant – Global Trans Oceanico SA Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, United Bank of Africa Plc Vs BTL Industries Ltd supra, Amah Vs Nwankwo supra, Anozia Vs Attorney General, Lagos State supra, JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 (Pt 1225) 495, Wilson vs Okeke (2011) 3 NWLR (Pt 1235) 456, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba supra, Adetono Vs Zenith International Bank Plc supra, Charles Vs Governor of Ondo State supra, Citec International Estates Ltd Vs Francis (2021) 5 NWLR (Pt 1768) 148.
As stated earlier, the compliant of the Appellant in his originating processes before the lower Court was against the failure of the first Respondent and the second Respondent to comply with the judgment and several orders made by the High Court of Osun state in Suit Nos. HIK/25/2020, suit No HIF/36/2021 and suit No HIJ/6/2022 in the conduct of the Governorship Primary Election for electing its candidate for the Osun State Governorship election and he sought for the setting aside of the Governorship primaries conducted by the first Respondent and monitored by the second Respondent and whereat the third Respondent was declared winner and for the upholding the Governorship primaries held elsewhere whereat he was declared winner, in its stead. This is the cause of action presented by the Appellant to the lower Court for adjudication.
Now, it is not in dispute that the three actions in the High Court of Osun State wherein the judgment and several orders made were allegedly not complied with by the Respondents, i.e. Suit No HIK/25/2020 – Olasoji Adagunodo Vs PDP & 3 Ors, Suit No HIF/36/2021 – Honourable Olasoji Adagunodo Vs PDP & Anor and Suit No HIJ/6/2022 – Mr. Adedokun Ademola & 30 Ors Vs PDP & Anor, were all actions in personam and the judgment and the several orders made in them were made in Personam. This means the judgment and several orders made in three cases were made inter parties and they created personal obligations in respect of the rights of parties inter se to, or in the subject matter in dispute. They were not judgment and orders made in rem and binding on the whole world – Dike Vs Nzeka II (1986) LPELR-945(SC), Yanaty Petrochemical Limited Vs Economic and Financial Crimes Commission (2017) LPELR-43473(SC), Noekoer Vs Executive Governor of Plateau State (2018) LPELR-44350(SC).
Thus, the judgment creditors and the judgment debtors in the three actions are the persons respectively entitled to the benefit of, and liable under the enforceable judgment and orders made in the three cases – ABC Merchant Bank (Nig) Ltd Vs Panalpina World Transport (Nig) Ltd (2005) 4 NWLR (Pt 915) 374, In Re: The Sheriff, High of Justice Rivers state, Port Harcourt (2017) LPELR 42509(CA).
In other words, it is only the parties to the three cases that can seek to enforce the judgment and the several orders made therein, not a third party, and concomitantly, the judgment and several orders can only be enforced against parties to the three cases, and not a third party. The Appellant was not a party to any of the three cases and neither did the judgment entered or any of the several orders made in three cases create or vest any right in the Appellant against the Respondents. The Appellant thus lacked the requisite locus standi to commence the action in the lower Court to complain against the failure of the Respondents to comply with the judgment and several orders made by the High Court of Osun State in Suit Nos HIK/25/2020, Suit No HIF/36/2021 and Suit No HIJ/6/2022 in the conduct of the Governorship Primary Election. The finding of the lower Court on locus standi was thus on very firm ground.
Further, a read through the judgment and the several orders made by the High Court of Osun State in the three cases shows that they were executory orders and not merely declaratory. Thus, even assuming that the Appellant could complain against the failure of the Respondents to comply with the judgment and the several orders made in the three suits, a pertinent question that arises is – whether he could seek to enforce the said executory orders by the initiation of another action, as he did in the lower Court? This question has been considered by this Court and the resounding response from this Court is, No, the Appellant cannot do so and that an action so initiated is an abuse of process. In Odiong Vs Offiong (2011) LPELR-4679(CA), Aka’ahs, JCA (as he then was) held thus:
“I wish to observe that the enforcement of a judgment obtained from a Court such as in this case is not carried out by initiating another proceedings in another Court unless the judgment so obtained has been set aside as a nullity. If the judgment is not set aside, the subsequent proceedings are a nullity and an abuse of the process of the Court. What the respondent ought to have done was to apply for a writ of’ execution to enforce the judgment he got in Suit No. 64/2004.”
Similarly, in AMCON Vs Capital Oil & Gas Industries Ltd (2019) LPELR-48065, this Court, per Ige, JCA explained thus:
“As for issue 2 relating to whether one can enforce judgment in an earlier action, by a new action or commencement of another action. I am of the view that a valid, final and subsisting judgment of a Court cannot be enforced vide institution of another action before the same Court or other Courts of coordinate jurisdiction seeking for an order to compel a party to an existing judgment or Judgment Debtor thereof to comply with an extant judgment. Recourse must be had by a Judgment Creditor to the procedure provided or laid down by the Sheriffs and Civil Process Act and Judgment Enforcement Procedure Rules particularly in enforcing monetary judgments…. I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints, the method of enforcement of a particular judgment depends upon the type of judgment.
In the sum (i) A judgment/order for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor’s summons; (ii) A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a committal/order; (iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a writ of sequestration or writ of committal; and (iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person…
Consent judgment had already been given between the parties to this appeal in Suit No. FHC/ABJ/CS/714/2017 by the same Court and the same learned trial judge on 21st day of June, 2013 entered the consent judgment which judgment was attached to this suit FHC/ABJ/CS/514/2015. The method for enforcement cannot be by institution of another action which to my mind constituted abuse of Court process.”
Similar pronouncements were made by this Court in the cases of Wakili Vs Buba (2016) 13 NWLR (Pt 1529) 323, All Progressives Congress Vs Moses (2020) LPELR-52700(CA).
The Appellant has not given this Court any reason to depart from these pronouncements of the Court. A reasonable cause of action is a cause of action with some chance of success when only the allegations in the claimant’s originating processes are considered. If when those allegations are examined it is found that the alleged cause of action is certain to fail, the action ought to be struck out – Ajuwon vs Governor, Oyo State (2021) 16 NWLR (Pt 1803) 485, Fidelity Bank Plc vs Marcity Chemical Industries Ltd (2022) 7 NWLR (Pt 182) 351. The above pronouncements of this Court mean in effect that the cause of action pursued by the Appellant in the action commenced before the lower Court did not constitute a reasonable or actionable cause of action worthy of consideration by the lower Court. The finding of the lower Court that the action did not disclose a reasonable cause of action was correct.
The decision of the lower Court upholding the preliminary objections of the first Respondent and third Respondent was the right one, in the circumstances. It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the conclusive decision of the Federal High Court sitting in the Osogbo Judicial Division delivered in Suit No FHC/OS/26/2022 by Honorable Justice N. Ayo-Emmanuel on the 18th of March, 2022. I abide by the consequential order on costs in the lead judgment.
YUSUF ALHAJI BASHIR, J.C.A.: My Lord, AYOBODE O. LOKULO-SODIPE, PJ – JCA has graciously availed me a copy of the draft of this judgment well in advance which I have carefully read and I am fully in support of the reasoning and conclusion reached therein.
All I need to add perhaps is that in my respectful opinion everything about this case concerns dispute over who is or is not a proper delegate eligible to participate in the congress convened to elect the party flag bearer for the Osun State Governorship elections. Minus every cosmetics applied by the Appellant in dressing this action to give it a different look, it still remains inescapably an internal and or a local, intra party dispute within the 1st Respondent which the trial Court rightly found as non justiciable.
Accordingly, the grievances of the Appellant is certainly not cognizable under Section 84(14) of the Electoral Act. For this reason and the fuller and more comprehensive reasons contained in the leading judgment ably delivered by my noble brother, Ayobode O. Lokulo-Sodipe, I find no any scintilla of merit in this appeal, it therefore fails and accordingly dismissed. The decision of the lower Court declining jurisdiction is hereby affirmed.
Appearances:
Yusuf Ali, SAN, Adebayo Adelodun, SAN, with, Kehinde Adesiyan, Edmund Z. Biriomoni and F. Abiodun For Appellant(s)
M.S. Atolagbe, with him, Dr. Kehinde Kolawole – for 1st Respondent
Oluwole Jimi-Bade, with him, Henry Odunayo – for 3rd Respondent
2nd Respondent though served hearing notice on 4/7/2022 did not appear and was not represented by counsel For Respondent(s)
