PDP & ORS v. DAUDA (2020)

PDP & ORS v. DAUDA

(2020)LCN/15209(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, March 31, 2020

CA/YL/208/19

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. PEOPLE’S DEMOCRATIC PARTY (PDP) 2. HUSSAINI B. ZOAKA 3. DIMAS SHEKEL ANDIKKINA APPELANT(S)

And

ABDULRAHMAN DAUDA RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Adamawa State High Court delivered on 9th October, 2019 by Danladi Mohammed, J. in which the Court dismissed the Preliminary Objection challenging the Court’s jurisdiction and held that it had jurisdiction to entertain the action.

The background facts are that the 1st Appellant through the office of the organizing Secretary issued a circular outlining activities leading to the Local Government Elections in Adamawa State.

The Respondent was disqualified as an aspirant and in line with the provisions of the 1st Appellant’s Constitution, he appealed against his disqualification before the appeal committee set up by the party wherein his disqualification was upheld in its report of 3rd September, 2019.

The Respondent dissatisfied with the report of the Appeal Committee’s report instituted an action against the Appellants by way of Originating Summons and obtained a restraining order against the 1st Appellant from conducting the primary election into Gombi Local Government Council on 21st of September, 2019.

The 1st Appellant filed a Motion on Notice on 20th September, 2019 praying the lower Court to discharge its Ex-parte Order, having been obtained in violation of the requirements of the law.

The parties later filed other applications which included a Preliminary Objection urging the lower Court to decline jurisdiction, the suit having been statute barred as it was said to have been filed 15 days after the cause of action arose. In the trial Court’s Ruling of 9th October, 2019, the Motions and the Preliminary Objection were dismissed.The lower Court thereafter assumed jurisdiction to entertain the suit and fixed the matter for hearing on the Originating Summons against 13th November, 2019.

The Appellants were dissatisfied with the decision of the lower Court, thus this appeal.

The Appellant formulated the following issues for the determination of the appeal thus:
1. “Whether the lower Court has the jurisdiction to hear and determine Suit No: ADSY/117M/2019 between ABDULRAHMAN DAUDA VS. PEOPLES DEMOCRATIC PARTY (PDP) & 2 ORS having become statute barred? Distilled from Ground 1.
2. Whether the lower Court did not misdirect itself in law when it failed to act on the best evidence placed before it Exhibit ‘A’ and ruled that there is need to call for oral testimonies in respect of the 1st Appellant’s Appeal Committee report duly dated and signed already in evidence before it in a suit commenced by Originating Summons and which it lacks jurisdiction?
Distilled from Ground 2.
3. Whether the lower Court’s refusal to consider the 1st Appellant’s Motion on Notice dated and filed the same 20th day of September, 2019 amounts to a denial of fair hearing?”

The Respondent on his part distilled the following issues for the determination of the appeal thus:
1. “Whether the trial Court has the jurisdiction to hear and determine Suit No: ADSY/117M/2019 between: ABDULRAHMAN DAUDA VS. PEOPLES DEMOCRATIC PARTY (PDP) & 2 ORS considering when the cause of action aroused (sic) and as a result not statute barred?
2. Whether the Order Ex – Parte made on the 19th day of September, 2019 was validly made considering the facts and the circumstances of the case placed before the trial Court?
3. Whether the motion on notice dated the 20th day of September, 2019 and filed the same date was not heard and determined by the trial Court and as thus (sic) the Appellants given fair hearing?
4. Whether the lower Court was right in law to ruled (sic) that there is need for oral evidence considering the material contradictions in the affidavits to the motion on notice dated and filed (sic) the 27th day of October, 2019 with all the annexure therewith and the counter affidavit dated the 2nd day of October, 2019 with all its annexure?”

When the appeal was argued, the learned counsel to the Appellants, Ahmed Isa Esq. relied on his brief of argument filed on 30/10/19 and his reply brief filed on 9/11/19 which learned counsel adopted as his argument in this appeal.We were urged to allow the appeal and set aside the Ruling of the trial Court.

In response, the learned counsel to the Respondent M.M. Tumba Esq. relied and adopted his brief of argument filed on 7/11/19, as his argument in this appeal in urging us to dismiss the same. Further, that the Appellant’s brief of argument exceeded the 15 pages allowed by the practice direction of this Court, reliance was placed on the case of CROSS COUNTRY LTD. VS. A.G. MOELLER LTD. (2014) LPELR –24091 CA. We were urged to discountenance the appellant’s brief of argument. It was submitted that the Electoral Act is not applicable to this case as well as the Constitution of the Federal Republic of Nigeria but, rather the Adamawa State Law guiding elections.

In reply, the learned counsel to the Appellant submitted that the practice direction is to guide the Court. Further, that the word “must” in the guideline would not always be given a strict interpretation.

After the appeal was fully argued and adjourned for judgment, this Court on a later date, before judgment invited the parties for learned counsel to address the Court on its jurisdiction to entertain the appeal.

In addressing the Court, S.G. Udoh Esq. submitted that this Court has jurisdiction to entertain the appeal because the claim (subject matter), which led to the appeal borders on the interpretation of chapter 1, Section 2, Chapter 8, Section 10 of the Constitution of the 1st Appellant which is to do with the exclusion of the Respondent.

It was argued that the appeal borders on the jurisdiction of the trial Court to entertain the suit in the first place. Further, that the issue of jurisdiction could be raised even before this Court for the first time, which has to be decided one way or the other before this Court, considering the fact that it is an appeal from the high Court in its appellate capacity, Section 16 of the Court of Appeal Act was referred to.

In response, the learned counsel to the respondent M.M. Tumba Esq. submitted that this Court lacks the jurisdiction to entertain this appeal. See, AYODELE MUSIBAU VS. ALL PROGRESSIVE PARTY & ORS (2019) LPELR – 46802 (SC). It was submitted that the appeal should have been determined within sixty (60) days by virtue of Section 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It was argued that the Notice of Appeal was filed on 16/10/19 and that 108 days have gone from the day of filing the Notice and grounds of appeal. It was submitted that the appeal is statute barred; therefore this Court has no jurisdiction to entertain the appeal.

Further, that the appeal is not for the interpretation of any statute as argued by the appellant’s counsel and that the trial Court and this Court have the jurisdiction to entertain this suit which was brought by way of Originating Summons. It was submitted that the Adamawa State Electoral Law did not specify or expressly state that matters brought under a Writ of Summons cannot be entertained by the high Court.

The plaintiff (now Respondent) sought the following question to be determined by the lower Court:
1. “Whether by virtue of Chapter 1 Section 2, Chapter 8 Section 10, of the Constitution of the Peoples Democratic Party, the Appeal Committee of the 1st defendant were right not to clear the Plaintiff to contest as a flag bearer of the 1st defendant during the primaries to be conducted on the 21st day of September, 2019 for the office of the Chairman Gombi Local Government Area of Adamawa State.”

In the event that the aforementioned question is answered in the affirmative or resolved in favour of the Plaintiff against the defendants, the Plaintiff sought the following reliefs against the defendants:
1. “A DECLARATION that the action of the Appeal Committee of the 1st defendant that sat on the screening of nominees to vie for the office of the Chairmanship of the Gombi Local Government, Adamawa State and screened out the Plaintiff by not clearing the Plaintiff is unconstitutional as being in breach of the Constitution of the 1st Defendant.
2. A DECLARATION that the exclusion of the plaintiff from the list of qualified candidates to contest for the office of the chairmanship of Gombi Local Government Area Counsel under the platform of the 1st defendant without lawful justification and having fulfilled the criteria for the election is unlawful by virtue of Chapter 1 Section 2 and Chapter 8 Section 10 of the Constitution of the 1st defendant.
3. AN ORDER of this Hon. Court directing the 1st defendant to includes the plaintiff name among the list of qualified candidates to contest for the primary election to determine the flag bearer of the 1st defendant for the chairmanship election Gombi Local Government Area of Adamawa State.
4. AN ORDER of this Hon. Court staying the conduct of the primary election of the 1st defendant to determine the flag bearer of the 1st defendant for the office of the Chairman, Gombi Local Government Area of Adamawa State to be conducted on the 21st day of September 2019 until the name of the Plaintiff is included.
5. AN ORDER(S) the Court may deem fit to make in the circumstances.”

The grounds upon which the application was brought are as follows:
1. “By virtue of Chapter 1 Section 2, Chapter 8 Section 10 of the Constitution of the Peoples Democratic Party 2017 (As Amended) the Plaintiff is required as a condition to possess a minimum of Secondary School Certificate or its equivalent to contest.
2. That the Plaintiff submitted the documents below among others to the Transition Committee (Screening Committee) of the 1st Defendant:
1. Duly completed nomination form
2. Membership card
3. Tax clearance certificate
4. Voters card
5. Certificate of Primary Education No: 196764 in the name of the Plaintiff (AbdullrahmanDauda)
6. Senior School Certificate with candidate No: 22106878BC in the nameof the Plaintiff (DaudaAbdulrahman).
7. Letter of resignation as an ex – officio dated the 15th day of July 2019.
8. Clearance to contest for Local Government Elections 2019 from the acting chairman PDP Gombi Local Government.
9. Statement of result of the Plaintiff’s Diploma.
3. That the acting Chairman of the 1st Defendant Gombi Local Government issued the Plaintiff and approval letter dated the 22nd day of July 2019 based on the letter of resignation dated the 15th day of July 2019 to enable the Plaintiff contest for the chairmanship election.
4. That the screening committee requested the Plaintiff to produce his original certificate for Diploma haven presented the Statement of result of the Diploma in Public Administration of the Federal University of Technology, Yola.”

From the question raised at the lower Court for determination by that Court, and if determined in the affirmative in favour of the plaintiff, the reliefs sought, part of which are declaratory in nature and the grounds upon which the application was brought before the lower Court, it is clear that the crux of the matter is the 1st Appellant’s failure to clear the plaintiff (now Respondent) to contest as the flag bearer of the 1st defendant (now 1st Appellant) during the primaries which was conducted on 21st September, 2019 for the office of Chairman Gombi Local Government Area of Adamawa State. No doubt what was challenged arose from the Local Government Primaries, which had been determined by the Appeal Committee of the 1st defendant (now 1st Appellant) in line with the Constitution of the 1st Appellant. The Appeal Committee in its report, page 111 of the printed records of appeal did not clear the Respondent (then Appellant/Applicant) before the committee.

The Respondent who was dissatisfied with the report of the appeal panel appealed against his disqualification before the appeal committee set up by the party instituted his action against the Appellants by way of Originating Summons in which the lower Court granted a restraining order against the 1st appellant from conducting the primary election into Gombi Local Government Council on 21st September, 2019. The 1st appellant raised a Preliminary Objection challenging the lower Court’s jurisdiction, in its Ruling the lower Court dismissed the Preliminary Objection and assumed jurisdiction to entertain the matter, thus this appeal.

The learned counsel to the appellants had argued that the action at the lower Court was for the interpretation of the Constitution of the 1st Appellant in respect of the exclusion of the Respondent in the Local Government Council primaries and a challenge of the lower Court’s jurisdiction to entertain the matter in the first place. On the other hand, the learned counsel to the Respondent had argued that this appeal is caught up by Section 285 of the 1999 Constitution (as Amended), the time to determine same having exceeded the 60 days permitted, after the filing of the Notice of Appeal. Further, that the lower Court has the jurisdiction to entertain the matter as filed under the Originating Summons procedure.

This Court invited learned counsel to address this Court on its jurisdiction to entertain this appeal being a matter that emanated from a Local Government Council Primaries of the 1st Appellant. Throughout the argument of both learned counsel, nothing was said about the specific issue to be addressed considering the claim that was before the lower Court that resulted in this appeal. Election matters which include party primaries are sui generis, Rules and procedures are mapped out specifically for the determination of these line of cases. Learned counsel on both sides did not come up with any authority or law that makes Section 285 of the Constitution (as amended) applicable to cases emanating from Local Government Council Primaries or election, whatever the case may be.

No doubt, the issue of jurisdiction or lack of it could be raised at any stage, even at the Supreme Court but, it would be entertained by a Court that has jurisdiction to do so. See, BAKARE VS. A.G. OF THE FEDERATION & ORS (1990) LPELR – 707 (SC) P. 11, PARAS. C – D, OLOBA VS. AKEREJA (1988) LPELR – 2583 (SC) PP. 17 – 18, PARAS. F – D AND ESABUNOR & ANOR VS. FAWEYA AND ORS (2019) LPELR – 46961 (SC) PP. 38 – 41, PARA. F.
Learned counsel on both sides have also not come up with any authority or law that entitles or empowers this Court to entertain a matter challenging the conduct of Local Government Primaries of any political party. Appeals in respect of Local Government Primaries and Elections end at the High Court. In this regard, this Court lacks the jurisdiction to look into the merits of this appeal as urged by the learned counsel to the Appellants.

I hold that the appeal is incompetent, it is hereby struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by learned brother Chidi Nwaoma Uwa JCA. I adopt the reasoning and the conclusion arrived at by my learned brother.

I agree with my learned brother that the appeal is incompetent and should be struck out.

It is also accordingly hereby struck out by me.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

S.G. Udoh Esq. For Appellant(s)

M.M. Tumba Esq. with him, E.O. Uzoukwu Esq. For Respondent(s)