3PLR – BAKAM V. ABUBAKAR

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BAKAM

V.

ABUBAKAR

COURT OF APPEAL, (KADUNA DIVISION)

WEDNESDAY, 27TH MARCH, 1991

SUIT NO. CA/K/23/91

3PLR/1991/59 (CA)

 

 BEFORE THEIR LORDSHIPS

JOSEPH DIEKOLA OGUNDERE, J.C.A. (Presided)

OKAY ACHIKE, J.C.A

MURITALA AREMU OKUNOLA, J.C.A. (Read the Leading Judgment)

 

BETWEEN

  1. JAMES BAKAM (ELECTORAL OFFICER, NEC KADUNA L.G.A.) – PETITIONER

AND

ALHAJI YAKUBU ABUBAKAR EXECUTIVE COMMITTEE S.D.P (KADUNA L.G.A.) – APPELLANT

MAIN ISSUES

ELECTIONS MATTERS – INTRA-PARTY DISPUTES:- Party nomination – Jurisdiction of the High Court to determine same

ELECTIONS MATTERS – SPONSORSHIP OF CANDIDATE:- Whether a justiciable legal right.

PRACTICE AND PROCEDURE – APPEAL – BRIEF WRITING:- Failure to file brief of argument – Effect

PRACTICE AND PROCEDURE – COURT- HIGH COURT:- Jurisdiction to entertain intra-party dispute on nomination for political office – Basis of

PRACTICE AND PROCEDURE – COURT –JURISDICTION:- Meaning and nature of – When and how raised

MAIN JUDGEMENT                                      

OKUNOLA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the ruling of S.M. Coomassie J of the High Court of Kaduna State dated 6th December, 1990, in respect of the plaintiff/Respondent’s claim against the 1st Defendant/appellant for the following relief endorsed in the writ on p.2 of the Record as follows:­

An order of court directing the Defendant to accept as the authentic list and to act on the same as being the only list of nominated candidates of the S.D.P. Kaduna Local Government Area for the purpose of contesting the forthcoming Local Government Elections Scheduled for the 8th of December, 1990.”

The 1st plaintiff Respondent also filed a statement of claim. The nature of the suit being an Intra-party dispute as to which candidate or candidates the S.D.P. should sponsor to contest the Local Government Election, in Kaduna Local Government Area (hereinafter referred to as the KLGA) the 1st Defendant/ Appellant did not bother to put in an appearance nor contest the suit. However, the 2nd Defendant now the appellant herein being aware of the threat posed by the suit to his candidacy to contest the aforesaid election as the S.D.P. Chairmanship candidate for the KLGA later applied and was joined as 2nd Defendant in the suit and later filed his statement of defence and counter-claim. (see pages 50-54 of the Records). Subsequently, issues were formulated. Since the elections were very close, the parties sought for and obtained the leave of court to argue the issues at stake. Counsel to both the Respondents and the Appellants made their submissions on 4/12/90 on the issues formulated by them and the court gave its ruling on 6/12/ 90 just over a day to 8/12/90 the Election Day.

In his Ruling, judgment was entered in favour of the Respondent herein against the appellant when the National Electoral Commission (hereinafter re­ferred to as NEC) was ordered to use only the names of the S.D.P. candidates submitted to it by the S.D.P. following that party’s primary elections of 14/10/90 and to reject the list submitted by the party following the fresh primaries conducted on 17/10/90 which contained the name of the appellant herein thereby depriving the appellant of contesting the elections of 8/12/90. By the ruling, the court determined for the S.D.P. the candidates, it should sponsor for the said elections. Dissatisfied with this ruling, the appellant brought this appeal to the court of appeal on 3 grounds contained in the Notice of Appeal.

From the three grounds of appeal, two issues were formulated by the appellant for the determination in this appeal which 1 agree form the kernel of this appeal. These are:

(i)      Whether, notwithstanding the provisions of section 6(6) (b) and 236 of the 1979 Constitution, the High Court lacks jurisdiction to entertain the suit because the power and right to nominate and sponsor candi­dates to an election are the exclusive domestic affair of a political party and the Court should not dictate or compel a political party to nominate or sponsor a particular candidate or candidates.

(ii)     Whether the High Court lacks jurisdiction to compel the NEC or direct it as to the way and manner it should exercise or discharge the statutory powers and functions conferred upon it by the statute establishing it.

Before dealing with the issues highlighted above, it will be observed that the Respondent has not filed any brief in this appeal despite this court’s order of 18/ 3/91 on the parties to do so on or before the 22nd day of March 1991. Instead of complying with this order, the Respondent’s counsel on 25/3/91 when the appeal was to be heard brought a motion for an adjournment of the appeal to 27/3/91. It also sought for an order of the court to “exercise its power to and receive as further evidence on questions of facts relating to the issues involved in this case, the writ of summons and the accompanying statement of claim in suit No.KDH/KAD/475/ 90′.”

The learned counsel to the appellant opposed this application on the ground that the Respondent cannot be heard since he has not filed his brief. The learned counsel referred the court to its earlier order for accelerated hearing of this appeal and refusal of waiver of filing briefs etc. He contended that the application would amount to a review of the court’s earlier order. The court upheld the appellant’s argument and held that the Respondent cannot be heard even if the case is adjourned having regards to Order 6 Rule 10 of the Court of Appeal Amendment Rules 1976 since he has not filed his brief. Moreso. when he has not filed motion for extension of time to file his brief. The court therefore gave leave to the appellant to proceed with his argument in this appeal.

We are therefore left with the Appellant’s brief of argument. In the brief the appellant abandoned ground 3 which is hereby struck out. In the main, the core of this appeal centres on whether the High Court has jurisdiction to entertain the present suit since the power and right to nominate and sponsor candidates to an election are the exclusive domestic affair of a political party?

Learned counsel to the appellant adopted his brief filed herein. On this issue which he tagged as No.1 he contended that the above poser raises the issue of jurisdiction which can be raised at any stage of the proceeding or even on appeal.

I seem to agree with counsel on this point. I will go further to add that issue of Jurisdiction can even be raised suo mom by the court where the parties have failed to do so. (See

(i)      Ijebu Ode L.G. v. Adedeji Baloqun & Co. (1991) I NWLR (Pt. 166) 136 at 154 C-D, 164 A-B, 153 D-E.

(ii)     Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 p. 520 C-F

(iii)    Utih v. Onovivwe (1991) I NW LIZ (Pt. 166) 166 p.206 A- B (iv) Western Steel Workers Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt..30) 617 p.627 D-H, 628 A-B

(v)     Madukolu & 2 Ors v. Nkemdilint (1962) 1 All NLR 587 p. 595. (1962)2 SCNLR 341

Having held that the issue of jurisdiction is justifiably raised in this appeal, it is necessary to consider whether the High Court was right to have assumed jurisdiction in the circumstances of this case relating to intro-party dispute of choosing candidates for the S.D.P. The learned counsel to the appellant in his brief has resolved this issue in the negative.

I have considered the argument of learned counsel to the appellant. I believe that having regards to the seemingly unlimited jurisdiction of the High Court as entrenched in SS.6(6(b) and 236 of the 1979 Constitution, this poser deserves a great consideration. It is therefore not surprising that the matter caught the attention of the Supreme court in an earlier case which today constitutes the locus classicus on the subject in Nigeria. This was the case of Hon. Patrick C. Onuoha v. Chief R.B. Okafor & 2 Ors (.1983) 2 SCNLR 244; (1983) 10 SC 118 Where at p.1 19 the court put the matter in controversy pointedly as follows:

“The matter in controversy in the appeal, is whether, a court has jurisdiction to entertain a claim whereby it can compel a political party to sponsor one candidate in preference for another candidate of the self-same political party”

In the lead judgment of that court at p.142, lines 1-8 Obaseki, J.S.C. posed the issue in the following manner:

“The question that first arises is whether it can be said that the High Court has jurisdiction in the wider sense to grant the claims of the Plaintiff having regard to the judicial powers and jurisdiction conferred on the state High Court by our constitution.”

The full panel of the Supreme Court in this case, in a unanimous decision held that the High Court had no jurisdiction inspite of its powers and jurisdiction as conferred by the 1979 Constitution.

Thus, the Court put the answer succinctly as to] lows per Obaseki J.S.C. in the lead judgment at pp. 138 lines 26-32, 139 line l, 154 lines 25-27 and 155 lines

1-2 as follows:

“The practice of the Court is not to run associations (corporations and unincorporated associations) for the members. It leaves the members to run their association. Where a nominated member is denied sponsorship, the nomination, to all intents and purposes is nullified or withdrawn. “26-32.139 line 1).

… There are no judicial criteria or yardstick to determine which candidate a political party ought to choose and the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction. The question of the candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer…”

As regards the provisions of SS.6 and 236 of the 1979 Constitution, the learned J.S.C. further on page 168 contended that sponsorship by a political party was not a legal right vested in anyone whether under the constitution or any statute law or under the common law or customary law and further urged upon the High Court to refrain from entertaining a matter which concerned the domestic affairs of a political party.

Some of the Justices – Irikefe, Bello, Aniagolu JJSC (as they then were) made similar remarks. Thus, Aniagolu JSC at pp. 171 and 172 explained the rationale behind their reasoning in this judgment thus:

“In the second place, common sense dictates that a political party which will have the responsibility of carrying its sponsored candidate through the rigours of campaigns for election, must be the one, and not the courts, to choose from its members the candidates who, in its deliberate judgment, is likely to appeal to the electorate of the constituency which the candidate is seeking to represent in the legislature. Where the court forces a candidate on a political party, will the court proceed to campaign for votes for the candidate of its verdict? If not, in order not to render its order nugatory, will the court then proceed to make a further order that the .political party must campaign for votes for the candidate of its verdict? The obvious negative answer to the two questions shows how ridiculous it is for a court to dabble in affairs which do not lie within its competence … (pg. 171 lines. 16­28, pg. 172 lines I-2).”

In the light of the above explicit guideline from the Supreme Court, I hold that the Kaduna State High Court lacked jurisdiction to determine for the S.D.P. which candidate or candidates it should nominate and sponsor for the Local Government Council Election or any election whatsoever.

The second issue in this appeal flows from the first in that by compelling NEC to use only a particular list of candidates supplied by the SDP as opposed to the 2nd list sent by the same SDP, the High Court is dabbling into the domestic affair of the political party which it lacks jurisdiction to do. It is apolitical matter which the SDP as a political organisation is competent to resolve and I so hold. I will also uphold the submission of the learned counsel to the appellant that by virtue of S.1 (d) of NEC Decree No.23 of 1987 as amendment by NEC amendment Decree No.8 of 1989 the power and function of deciding on the eligibility of candidates is exclusively vested in NEC and the court lacks jurisdiction to compel NEC as to how it should exercise its statutory powers and functions. This flows from S. I (d) of the aforesaid NEC Amendment Decree No.8 of 1989 on function of NEC which provides thus:

“(d)   to determine the eligibility of sponsored candidates for any of the elections referred to in paragraph (a)of this sub-section.”

In the light of the foregoing as well as Onuoha’s case supra, I hold that the High Court exceeded its jurisdiction by imposing a list of candidates on NEC through its ruling herein appealed against. I also hold in the main that the High Court of Kaduna State lacked jurisdiction to entertain the present suit. It’s decision in this regard is a nullity decision and I so hold. The Kaduna High Court should have struck out the suit in the first instance. See Nigeria Airways v. Lapite (1990) 7 NWLR (Pt. 163) 392,404. Since the issue of jurisdiction has succeeded, I believe this has disposed of this appeal.

Consequently, I allow the appeal and set aside the ruling of Coomassie J. of Kaduna State High Court dated 6th December, 1990. An order striking out the action is hereby entered. Costs of N450 is awarded in favour of the appellant.

OGUNDERE, J.C.A.:

I agree with my learned brother Okunola. J.C.A. that this appeal has merit and must be allowed. A court of law lacks jurisdiction to adjudicate on intra party contest on nominations of candidates to contest any election, as no party member has a legal right to that nomination nor is there a corresponding obligation on the political party so that the Judicial powers of the court maybe invoked under section 6 of the Constitution and so vest the High Court with jurisdiction under section 236 thereof.

That was the point decided by the Supreme Court in Onuoha v. Okafor & Ors (1983) 10 S.C.118, (1983) 2 SCNLR 244 The High Court of Kaduna State therefore lacked jurisdiction to entertain the matter and should have struck it out.

See; Makeri v. Kafinra (1990) 7 NWLR (Pt. 163) 411 at 422, a decision of this court and this Division.

The Supreme Court took the same view in Nigeria Airways Ltd v. Lapite (1990)7 NWLR (Pt. 163) 392, 404. The appeal is accordingly allowed. The judgment and order of Coomassie J. inset aside, and an order striking out the action is hereby entered. The respondent shall pay N450 costs to the appellant.

ACHIKE, J.C.A.:

Notwithstanding the provisions of sections 6 and 236 of the 1979 Constitution which seemingly confer unlimited jurisdiction on the High Court of a State, it is equally beyond the realm of paradventure that the Supreme Court in the leading case of Onuoha v. Okafor & Ors (1983) 10 S.C 118 (1983) 2 SCNLR 244 has decreed that the High Court lacks jurisdiction to entertain matters which are purely within the domestic domain of a political party or within the exclusive powers of National Electoral Commission under Decree No.23 of 1987 as amended by Decree No. 8 of 1989 vesting NEC with powers to determine the question of eligibility of candidates.

In the circumstances, the learned trial judge ought to have declined jurisdiction to entertain the suit and should have struck it out.

See; Nigerian Airways Ltd v. Lapite (1990) 7 NWLR (Pt. 163) 392, 404.

It is for these reasons and the fuller reasons contained in the leading judgment of my learned brother, Okunola J.C.A., with which I am in full agreement, that 1, too, would allow this appeal.

Accordingly, the judgment of Coomassie J. of the Kaduna High Court is hereby set aside and I order that the action be struck out with N450 costs to the appellant.

Appeal allowed.

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