3PLR – HON. PATRICK C. ONUOHA V. CHIEF R.B.K. OKAFOR CHAIRMAN N.P.P. & Ors
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
HON. PATRICK C. ONUOHA
V.
CHIEF R.B.K. OKAFOR CHAIRMAN N.P.P. & Ors
IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 14TH DAY OF OCTOBER, 1983
SC.59/1983
3PLR/1983/23 (SC)
OTHER CITATIONS
(1983)2 SCNLR 244
(1983) 10 SC 118
BEFORE THEIR LORDSHIPS
AYO GABRIEL IRIKEFE, JSC
MOHAMMED BELLO, JSC
ANDREWS OTUTU OBASEKI, JSC
KAYODE ESO, JSC
ANTHONY NNAEMEZIE ANIAGOLU, JSC
AUGUSTINE NNAMANI, JSC
MUHAMMADU LAWAL UWAIS, JSC
BETWEEN
HON. PATRICK C. ONUOHA – Appellant(s)
AND
- CHIEF R.B.K. OKAFOR CHAIRMAN N.P.P. NOMINATION ELECTORAL PETITION PANEL
- THE NIGERIAN PEOPLE’S PARTY
- CHIEF HON. ISIDORE OBASI – Respondent(s)
REPRESENTATION
M.I. Ahamba, Esq., E.E. Ewugwe, Esq., D.C. Iloghalu. Esq. – For Appellant
AND
Chief F.R.A Williams SAN., T.E. Williams, Esq. – For Respondent
MAIN ISSUES
ELECTORAL MATTERS – INTRA-PARTY DISPUTE:- Sponsorship of candidate by a political party – Where two rival candidates separately claim to be the rightful nominee of that party for the general election – Jurisdiction of court thereto – Whether purely domestic affairs to be determined by said political party
PRACTICE AND PROCEDURE – COURT – JURISDICTION: Election petitions – Jurisdiction of court to entertain an application to declare a candidate as the rightful nominee deemed sponsored by a political party for general elections instead of another whose name had been submitted by that party – How determined
PRACTICE AND PROCEDURE – COURT – POWER OF COURT: Power of court to deliver a declaratory judgment – Proper treatment of
PRACTICE AND PROCEDURE – COURT – DUTY OF COURT: Duty of court to determine when an issue is justiciable – Relevant considerations
WORDS AND PHRASES – “JUSTICIABLE DISPUTES”: Meaning of
MAIN JUDGMENT
OBASEKI, J.S.C. (Delivering the Leading Judgment):
At the conclusion of the addresses of counsel (for the parties) to this Court in this appeal on the 15th day of August, 1983, I dismissed the plaintiff/appellant’s appeal and I deferred my reasons till today. I now give my reasons.
Proceedings in this matter were commenced by the plaintiff in the High Court of Justice of Imo State at Owerri by a writ of summons bearing an endorsement of claim which reads as follows:
‘The plaintiff claims against the defendants jointly as follows:
- A declaration that the decision of the Nigerian Peoples’ Party Nomination Elections Petition panel on Tuesday 19th April, 1983 nullifying the nomination election for the Owerri Senatorial Nigerian Peoples’ Party candidature of 21st March, 1983 is null and void being contrary to natural justice, equity and good conscience.
- A declaration that the nomination election results announced by the presiding officer for the nomination election for the Owerri Senatorial District N.P.P. candidature on March, 21 1983 is valid and subsisting as being in accordance with the guidelines for the said election.
- An injunction restraining the Nigerian Peoples’ Party from submitting the name of Hon. Isidore Obasi or any name other than that of Hon. P.C. Onuoha to the Federal Electoral Commission as the N.P.P. candidate for Owerri Senatorial District seat in the 1983 general elections.”
Claim 2 was on the 11th day of May, 1983 withdrawn with the leave of the court. No order striking out the claim was made by the court. With the withdrawal of claim 2 which is for a declaratory judgment that the nomination election result of 21st March, 1983 which was in favour of plaintiff’s candidature is valid and existing, the plaintiff was left with claim 1 and claim 3. Claim 1 which is for a declaratory judgment nullifying the decision of the election petition panel which set aside the nomination of the plaintiff to contest the senatorial seat on the sponsorship of the N.P.P. and claim 3 which is for injunction to restrain the N.P.P. from submitting the name of Hon. Isidore Obasi the 3rd defendant or any name other than that of the plaintiff/appellant to the Federal Electoral Commission as the N.P.P. candidate for Owerri senatorial district in the 1983 general election have one singular aim in view. The claims are, in my view, aimed at getting the N.P.P. to sponsor the, appellant for the election to the Senate.
In their amended statement of defence, the 3rd defendant set up a counterclaim in paragraph 19 as follows:
“19. The 3rd defendant hereby counter-claims against the plaintiff as follows:
‘A declaration that the nomination lists for the N.P.P. nomination election for Owerri senatorial district and the actual conduct of the election on 21st March, 1983 were full of irregularities contrary to the party Guidelines and Directions and that the result of the election is invalid and of no effect”
At the hearing, however, the counter-claim was not proceeded with. It was withdrawn by counsel and the court then struck it out. Following this withdrawal, the appellant had second thoughts about claim 2. He applied to have it restored and it was later restored after the conclusion of the evidence for the defence. At the conclusion of evidence and counsel’s addresses, the learned trial Chief Judge, Oputa, C.J. delivered a well considered judgment granting the two declarations and the order of injunction sought and dismissing the counter-claim.
In the penultimate paragraph of his judgment, he observed, commented and held as follows:
“In this case, the officers who conducted the nomination election of 21st March, 1983 were 2nd defendant’s N.P.P. officers; the nominators were N.P.P. nominators; the chairman (sic) of the different local government areas, who authenticated the nominators were N.P.P. officers, the guidelines were N.P.P. guidelines, exhibit 15 to exhibit 24 were prepared by the N.P.P. I hold the view that the election of 21st March, 1983 resulting in exhibit 7 was in substantial conformity with the N.P.P.’s constitution, Exhibit 3 and N.P.P. guidelines and this court will, as was done in the case of Young v. Ladies Imperial Club Ltd. (1929) 1 OB 81, not be too meticulous in scrutinising any alleged irregularities.
I therefore hold that exhibit 7 is still subsisting, valid and binding between the plaintiff and the 2nd defendant. Following naturally from above, the plaintiff’s claim No.2 succeeds, and the counter-claim fails. I hereby dismiss the counter-claim.
What of the injunction in claim No.3?
On the authority of Foley v. Classique Coaches Ltd. (supra) Claim No.3 automatically succeeds. All the plaintiff’s claims therefore succeed and I make the following declarations…”
Aggrieved by this decision, the defendants appealed against the judgment to the Federal Court of Appeal.
In a unanimous judgment, the Federal Court of Appeal (Phil- Ebosie, Aseme and Olatawura, JJ.CA) allowed the appeal set aside the decision of the High Court and dismissed the claims. Olatawura, J.C.A. delivered the lead. Olatawura, J.CA in his judgment said inter alia:
“It is therefore the responsibility of each political party to sponsor candidates for election. In fact, where two members of a political party claim to have been sponsored by their party, even FEDECO with all the powers conferred on it by the Electoral Act cannot choose on its own either of the rival claims but must consult the party to which the two rival candidates belong … Now that there is a dispute the court is being called upon to choose a candidate and compel the party to sponsor him. … There comes a time, more so where some of the members of a political party are to be chosen to compete with members of other political parties, e.g. during an election, (sic) the parties should be the sole arbiter of who should represent them. … A member of the party who is disenchanted with the party has one honourable course open to him; to resign from the party and may decide to join another party or stay out of politics. . If there is any claim, the plaintiff can maintain against his party, i.e. the 2nd defendant, it is in my view an action for damages for their failure to sponsor him.”
Aseme, J.C.A. concurring, said in his judgment poignantly,
“Members of political parties ought to know that by the provisions of section 76 of the Electoral Act 1982 the constitutions of these political parties are sine qua non for due administration of the political parties. The constitution of a political party is meant to control the functions of the party and members are therefore bound by the decision regularly reached by the party organs in the management of its domestic affairs. On the question that the State Working Committee was incompetent to set up the panel, it seems to me from exhibit 39, that under the chaotic situation that then prevailed which needed prompt actions that (sic) the decision of the State Working Committee in setting up the panel was a wise one within the provisions of article 25(3)(b) and (d) of the Nigerian Peoples’ Party’s constitution. The award in claim A therefore cannot stand. In the final analysis, the appeal succeeds.”
and finally, Phil-Ebosie, J.CA concurring observed:
“On the other hand, the plaintiff’s action is not a request or remedy for breach of his proprietary interest. It is a claim for declarations and injunction. It may be asked, what is the effect of the court making such a declaration and ordering an injunction as claimed by the plaintiff. Would it not amount to the court selecting a candidate for a political party? Is it within the competence of the court to do so? The basic rule as I have already set out is that a court does not run an association for members. The members should be allowed to run it themselves. This rule is supported by all the authorities cited in this appeal. Courts will only interfere if there is a breach of proprietary right or a breach of contract or where there is a statutory provision which gives it the power to intervene………….
It seems to me that political parties are supreme in matters of sponsorship of candidates for election. The court must not say to a political party, A or B must be your candidate or that one of the two will not be your candidate.”
Aggrieved by this decision, the plaintiff appealed to this Court on 8 grounds to wit:
- The Federal Court of Appeal erred in law in re-opening the issue of jurisdiction especially when that court found that the plaintiff, now appellant, has a legal right arising ex-contractu a breach of which the court below (the trial court) can enforce. Having so found, the only issue before the Court of Appeal would have been whether or not the award of the court below was legally right or not.
- The Federal Court of Appeal erred in law when it proceeded on the wrong assumption that the Nomination Election Petitions Panel was an arbitration ex-contractu and that such a body was not subject to the rules of law applicable to the judicial tribunal.
- The Federal Court of Appeal failed to appreciate the constitutional importance of the case before it, namely, the right of a member of a political party founded upon and controlled by sections 201-208 of the 1979 Nigerian Constitution within that political party, and whether the provisions of the constitution of a political party can expressly or by implication abridge any of the rights conferred on a member as a Nigerian citizen by the Nigerian Constitution.
- The learned Justices erred in law when they held that the onus to prove, “urgency” and impracticability of the State Executive Committee to meet was on the respondent when “urgency” was an averment indefence and “imprac-ticability” was not averred at all in the statement of defence.
- The learned Justices erred in law when they up-held ground 7 of the grounds of appeal before them when in fact ground 7 was never argued by appellant.
- The learned Justices erred in law when they considered the conduct of the nomination election 21st March, 1983 relevant to these cases.
Particulars of Misdirection
(a) The respondents’ claim in the suit in the trial court below was based on the purported nullification of the result obtained on 21st of March, 1983 as per exhibit 7.
(b) There was no counterclaim as to whether the said nomination election was regular or irregular.
(c) Irregularity at the election of 21st March, 1983 is no defence to the respondents’ claim on the setting up of and composition of the panel.
- The Federal Court of Appeal erred in law when it held that the plaintiff now appellant could not rely on the evidence adduced at the trial by the defendants, now respondents, namely, the fact that Dr. J.C. Ogbonnaya was both witness and member of the Nomination Elections Petitions Panel, to prove the issue of whether the panel offended the rules of natural justice in its proceedings.
- The learned Justices of the Federal Court of Appeal erred in law when they held that Mrs. Victoria Akanwa’s presence at the nomination election of 21st March, 1983 and her signing of the results of the nomination election did not affect her competence to sit at the panel, although she had had foreknowledge of the issues that were, or might be, at stake at the Panel.
The appellant filed his brief of argument purportedly pursuant to Order 9 rule 3(1) along with a motion for leave to amend the grounds of appeal filed on 8th June, 1983, and accelerated hearing. The motion was heard and the prayers for amendment and accelerated hearing were granted on the 15th day of August, 1983.
As the records of proceedings and judgments of the courts below had been compiled and forwarded to the court, application for accelerated hearing having been granted, the appeal was heard on that day and judgment of the court dismissing it delivered. Outlining the issues raised in the appeal, learned counsel for the appellant submitted in his brief that ‘the question for determination in the appeal was whether the court could entertain a suit by a nominated member who is being denied sponsorship contrary to the rules of the party.” According to him,
”The right of political parties to choose their candidates was never in issue at the trial. This point was expressly conceded by the appellant on page 137; nor did the trial court hold a contrary view.”
One may then ask:
What this whole argument is about? Why was the claim for injunction filed and prosecuted? Why were these proceedings instituted in the first instance in the High Court?
According to learned counsel for the respondents, Chief F.R.A Williams, SAN., the sole question for determination by this court is whether the court has jurisdiction to compel a political party to sponsor a candidate whom it did not elect to contest for election to a senatorial seat. He submitted that the right to stand for election to the senate is not a common law right or a right under customary law but a statutory or constitutional right. He emphasised that where a statute creates a right and mentions the mode of enforcing that right, that mode of enforcement is the exclusive method and referred to the dictum of Lord Herschell in Barraclough v. Brown, (1897) AC. at 615-619, and the dictum of Lord Davy at page 623.
In the Federal Court of Appeal, Chief F.R.A Williams, SAN. posed the same question under three headings which read as follows:
“(1). Whether a court of law ought to entertain an action for the purpose of determining whether A and not B is a person whom a political party ought to sponsor for an elective office.”
(This, according to counsel, is the crux of the case).
“(2). Have the rival candidates in this case voluntarily submitted to the arbitration of the senatorial election petition panel appointed by the State Working Committee of the N.P.P. Imo State.
(3) If the answer to question 2 is ‘Yes’, is it open to either party to challenge the decision of the panel on the ground that it was improperly set up or on the ground that Mrs. Victoria Akanwa sat on the panel or on the ground that Dr. Ogbonnaya made information of facts known to him available to the panel of which he was also a member.”
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. That is the only logical explanation.
It is illogical for a political party to nominate a member for election and withdraw the sponsorship from him.
It will be necessary before proceeding further to reflect on the facts of this case.
The facts of the case are not in dispute and are succinctly set out by Olatawura, J.C.A. in his judgment. They are as follows:
”The plaintiff/respondent, Honourable P.C. Onuoha and the 3rd defendant/appellant, Chief the Honourable Isidore Obasi are members of the same political party – the Nigerian Peoples’ Party. Both of them applied to their party (N.P.P.) to be nominated for Owerri senatorial district seat. They both paid N5,000.00 non-refundable deposit for the said Owerri senatorial district. There was a body set up to select a candidate who will represent the party. The plaintiff was chosen. There was a petition by the 3rd defendant against the selection of the plaintiff and consequently, the State Working Committee of the party (N.P.P.) appointed a panel to look into this complaint. The plaintiff and the 3rd defendant were each given an opportunity to state his case.
This panel nullified the selection of the plaintiff and went on to choose the 3rd defendant to represent the party at the forthcoming senatorial election. The plaintiff then went to court on the grounds disclosed in his writ and statement of claim. It is the case of the plaintiff however, that he never took part in the election after the nullification and that the Nomination Election petition panel did not meet to select a candidate. The third defendant was according to the plaintiff’s counsel merely joined because he was a candidate whose interest was likely to be affected. This third defendant participated in the election which the plaintiff won.”
By the term and nature of the claim, a relief or remedy set out in the writ of summons and statement of claim, the plaintiff/appellant cannot run away from the fact that the primary aim and purpose of the action instituted in court by him is to compel his party the N.P.P. to nominate and sponsor him for election.
The court, however, is not an appellate body set up by the party under its constitution to hear appeals from unsuccessful candidates in the nomination and sponsorship exercise within the party. The judicial powers of the courts are defined by the 1979 Constitution of the Federal Republic of Nigeria section 6(6)(b) to “extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
The jurisdiction of the State High Court in the exercise of its judicial powers in civil matters conferred by section 236(1) of the said 1979 Constitution is expansive and more particularly reads:
“Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty liability, privilege, interest, obligation or claim is in issue ”
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 learned counsel who appeared for the parties approached these questions differently.
Since no brief was filed by the respondents, their counsel Chief F.R.A. Williams, SAN submitted that the appeal raised two basic questions, viz:
(1) whether a court of law ought to make an order directing a political party as to which of two persons it ought to sponsor for an elective office;
(2) if the answer is ‘Yes’, is the appellant entitled to an order directing that it is he and not the 3rd respondent whom the N.P.P. ought to sponsor?
Mr. Ahamba, learned counsel appearing for the appellant, disagreed with Chief Williams’ view of the issues raised in this appeal. He submitted that question 1 is not the issue before this court. In his view, the issue is whether the court could interfere in a situation where a party member has been nominated by the party in accordance with the rules of the party but is being denied sponsorship by the party contrary to the rules of the party and the rules of natural justice. He conceded that the political party has a right to choose its candidate in accordance with its rules.
The appellant’s counsel was brief in presenting his argument. He posed the question whether, having regard to the fact that the issue of jurisdiction has been resolved by the Federal Court of Appeal in his favour, and having regard to the present state of the law, the trial court could not have made the orders it made granting the declarations and the injunction. He conceded that the issue was clear that the relationship was ex contractu and the rights available to the appellant were ex contractu. He complained that the Federal Court of Appeal did not consider, distinguish, and or approve and apply any of the authorities cited despite the fact that the judgment of the High Court which was the court of trial was based on the express consideration of judicial precedents on the matter.
He was of the opinion that as the authorities cited were the decisions of the House of Lords in England the court was duty bound to consider them. He however reaffirmed and repeated his earlier concession that no court can foist a candidate on a political party for sponsorship for election.
In reply, Chief F.R.A. Williams, beginning with his first question submitted that two of the Justices of the Federal Court of Appeal answered the question in the negative. He explained that it is not a function of a court to interfere in the internal affairs of a political party unless there is a statutory provision conferring a power to do so. He expressly excepted the court’s power to pronounce for a breach of contract provided there is before the court a claim for damages for the breach of contract.
He submitted that to grant an order of injunction claimed in the instant case is to compel it to sponsor a candidate against its will and choice. He then referred to the provisions of sections 28, 29 and 89(2) of the Electoral Act. He maintained that the procedure adopted by the N.P.P. in setting aside appellant’s nomination was regular and proper and observed that the appellant submitted voluntarily to the jurisdiction of the panel set up by the working committee to enquire into the irregularities alleged by the 3rd respondent in the nomination election of the appellant. The fact that the panel found the irregularities established and nullified the nomination does not affect the validity of the nullification.
Mr. Ahamba, in reply, contended that the panel was a judicial body and subject to the rules of natural justice. It was not an arbitrator. He referred to section 83 of the Electoral Act 1982 and the dictum of Lord Denning in Lee v. The Showmans Guild of Great Britain, (1952) 2 Q.B. 329 at 304-6.
The issue raised in this appeal before us, is, in my opinion, as stated by learned counsel for the respondents, I.e. whether the court ought to make an order directing the N.P.P. to sponsor the appellant as against the 3rd respondent.
The answer to the question so raised must, in my view, be in the negative. A positive or an affirmative answer will instantly project or propel the court into the area of jurisdiction to run and manage political parties and politicians. Can the court decide which of the two candidates can best represent the political interest of the N.P.P.? In all honesty, I think the court will in so doing be deciding a political question which it is ill fitted to do.
I say it is a political question as it requires a political decision which in the light of the provisions of the 1979 Constitution and the Electoral Act 1982 the political party (whose sponsorship is desired) is empowered to make.
Every person in Nigeria and Nigerian citizens in particular are guaranteed freedom of association under our 1979 Constitution section 37 which reads:
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union, or any other association for the protection of his interests: provided that-
(a) the provisions of this section shall not derogate from the powers conferred by this Constitution on the Federal Electoral Commission with respect to political parties to which that Commission does not accord recognition; and
(b) a person elected to a legislative house as a candidate who was not sponsored by any political party shall not be entitled to join or declare himself to be a member of a political party until the general election next following his election as such candidate.”
The appellant’s membership of the N.P.P., a political party, is in exercise of his guaranteed right of association under this section.
It is indisputable that in the context of the Nigerian situation and having regard to section 201 of the 1979 Constitution, political parties have vital roles to play in the realisation of the ambition of every Nigerian citizen to an elective office under the Constitution. The said section 201 of the 1979 Constitution reads:
“No association other than a political party shall canvass for votes for any candidate, at any election or contribute to the funds of any political party or to the election expenses of any candidate.”
See also section 75(1) of the Electoral Act 1982 which is in pari materia.
The provisions of section 202, 203 and 204 of the Constitution reflect on the information of political parties and the content of the Constitution and rules governing them help to emphasise the reasons why the political parties are given such important roles to play in the Nigerian political scene. Section 202 reads:
“No association by whatever name called shall function as a political party, unless –
(a) the names and addresses of its national officers are registered with the Federal Electoral Commission;
(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, sex, religion or ethnic grouping;
(c) a copy of its constitution Is registered in the principal office of the Commission in such form as may be prescribed by the Commission;
(d) any alteration in its registered constitution is also registered in the principal office of the Commission within days of the making of such alteration;
(e) the name of the association, its emblem or motto does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and
(f) the headquarters of the association is situated in the capital of the Federation.”
See also section 78 of the Electoral Act 1882 which is in pari materia.
Section 203 of the Constitution reads:
“(1) The constitution and rules of a political party shall provide –
(a) for a periodic election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and
(b) ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria.
(2) For the purpose of this section
(a) the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years; and
(b) the members of the executives committee or other governing body of the political party shall be deemed to reflect the Federal character of Nigeria only if the members thereof belong to different States not being less in number than two- thirds of all the States comprising the Federation.”
and section 204 reads:
“The programme as well as the aims and objectives of a political party shall conform with the provisions of Chapter II of this Constitution.”
Implicit in the right to canvass for votes for a candidate is the right to sponsor and the right to withhold sponsorship from a candidate or not to sponsor a candidate for election.
The question that therefore arises is whether the court can justifiably interfere under any guise with the free exercise of this right by a political party. I think it cannot in law do so. Sponsorship must be freely given to enable any candidate for election in completing his nomination papers in compliance with section 30(1)(e) of the Electoral Act to give the required particulars of the political party sponsoring him, i.e.
“statement by the candidate, unless he is an independent candidate, as to the name of the political party which sponsors his candidature.”
In other words, he must have secured by agreement the sponsorship of the party before submitting the particulars. Subsection 4 of section 30 of the Electoral Act 1982 shows the privileges available to candidates sponsored by a political party when it provides that:
“A candidate for any election who so desires may deliver along with the nomination paper such number of posters containing his photograph and the symbol of the political party sponsoring him or his own symbol in the case of an independent candidate for that election.
Where two or more candidates at an election claim sponsorship by the same political party, the doubt so created can only be resolved by the Federal Electoral Commission by consulting the leader of the political party concerned. To this end, section 83 of the Electoral Act 1982 reads:
“(1) Where a symbol is registered by a political party in accordance with this Act, the Commission shall allot the symbol to any candidate sponsored by the political party.
(2) Where there is doubt as to whether a candidate is sponsored by a political party, the Commission shall resolve same by consulting the leader of the political party concerned.
(3) If no quorum of the Commission is available at (sic) time, the power conferred by subsection (2) of this section may be exercised by the chairman.”
The law is therefore certain as to who is to resolve the dispute where two candidates claim sponsorship. It is the Federal Electoral Commission by consulting the leader of the political party concerned. In other words, the Federal Electoral Commission is required to act on the advice of the leader of the political party concerned.
The real power to make a choice is, in my view, in the political party through its leader.
That being the state of the law, the real question must be whether the matter in dispute now before this Court on appeal is justiciable. It is clear to me that if the expressed intention of the Constitution of the Federal Republic 1979 and the Electoral Act 1982 is to give a political party, in the instant appeal the N.P.P. (Nigerian Peoples’ Party), the right freely to choose the candidate it will sponsor for election to any elective office or seat in the legislature and in this Instant appeal a seat in the House of Senate of the National Assembly. The exercise of this right is the domestic affair of the N.P.P. guided by its constitution. 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. The judiciary has been relieved of the task of answering the question by the Electoral Act when it gave the power to the leader of the political party to answer the question.
It is therefore my view that the matter in dispute brought before the Court is not’ justiciable. More so, as section 28 of the Electoral Act 1982 provides:
“(1) Every registered political party shall not later than 90 days (or such later day as may be directed by the Commission) before the date appointed for the general elections to be conducted pursuant to this Act deliver the complete list of the names and other relevant particulars of all the candidates the party proposes to sponsor for elective offices in respect of all the elections (or such number thereof as the party intends to contest) to the Commission.”
The internal law of the N.P.P. is its constitution (exhibit 3) divided into articles and sections. Article 7 (or VII) section 5 provides that:
“All members of the party shall be required to comply with the Rules, Regulations and Constitution of the party.”
The principal aim of the party is as expressed in Article VI section 1 of the Constitution:
”To bring together eligible Nigerian citizens into the fold of the party for the purpose of canvassing for votes for the party at elections and to sponsor candidates for elective offices in order to win elections and form governments throughout the Federal Republic of Nigeria.”
The rules governing the selection of candidates to contest the senatorial elections are contained in Articles XXXVI and in particular sections 1, 2, 6 and 9 (Senatorial Election). These provisions are instructive and it will be rewarding to set them out.
They read:
Section 1
“The National Secretary in the case of elections to the National Assembly shall invite applications from intending candidates through the State Secretaries.”
Section 2
‘The State Secretary shall inform the National Secretary of the fulfillment by the applicants of any conditions laid down by the party’s National Executive Committee.”
Section 6 – Senatorial Election –
“(a) The State Executive Committee shall set up a nomination committee for each of the Senatorial Districts.
(b) The senatorial nomination committee shall consist of 10 (ten) members elected by each of the (Local Government Area) L.G.A. party branches that make up the Senatorial District.
(c) The nomination committee shall be an ad hoc body and different from the senatorial meeting, and shall appoint its own chairman and secretary and shall adopt such procedure for democratic selection of candidates as shall be laid down by the National or State Executive.
(d) The decision of the committee shall be by a simple majority of the members present and voting by secret ballot at a meeting properly summoned with due notice to all entitled to receive such notice.”
Section 9 of Article XXXVI provides for the resolution of any dispute:
“Where there is a dispute in the nomination committee of such a nature as to disrupt the work of the committee, the State Executive or the National Executive as the case may warrant may conduct an investigation and may as a result
(a) intervene and supervise the conduct of the nomination from committees exercise through its officers appointed for that purpose;
(b) or disqualify a candidate whose conduct has led to such disruption of a party organ;
(c) disband the nomination committee and have a new one appointed or remit the selection exercise to the State or National Executive;
(d) or take such other disciplinary measures as deemed appropriate against any officer or member offending the rules.”
Those are the provisions of the N.P.P. constitution relevant in this appeal.
The party, like any other corporation, operates within the guidelines, the powers and duties set out in its constitution. All its members are bound by its provisions and their rights and obligations created by their constitution can be remedied as provided by the constitution if breached by any of its members. The failure to sponsor the appellant cannot be said to be in breach or ultra vires the powers of the N.P.P. because the appellant won the nullified nomination or because the appellant paid N5,000.00 to contest the nomination. The N.P.P. being a registered political party has the same capacity as a natural person to make its choice of candidate for sponsorship. Lord Denning delivering his judgment in the House of Lords in Institution of Mechanical Engineers v. Cane (1961) A.C. 696 at 724 said:
”There is very real difference in law between these various societies. If you are considering a limited liability company such as … you know that the purposes of the company are determined exclusively by its memorandum of association … So naturally enough you look at the purposes for which the company was originally instituted. But when you are dealing with a voluntary association of individuals, the doctrine of ultra vires has no place … So also in the case of a society incorporated by royal charter, the doctrine of ultra vires has no place. Such a society when duly created by the charter has in law the self same capacity as a natural person …”
Sponsorship, although it is one of the aims and objects of the party, is not a right guaranteed to the members of the N.P.P. alone under the party’s constitution or the 1979 Constitution of the Federal Republic of Nigeria or under any statute or common law.
The rights and obligations of Article 8 of the members are set out in the party’s constitution (see exhibit 3) and the right to be sponsored is not one of them. No where in the 1979 Constitution is a right to sponsorship by the N.P.P. guaranteed to the members of the party. It is only the right to contest nomination that is guaranteed by the party’s Constitution. See exhibit 3 – Article 36 of the N.P.P. Constitution.
The right to sponsorship can be acquired under a valid contract the breach of which entitles the member to damages. This is not the case here and no contract or the breach thereof has been pleaded.
In the case of Barraclough v. Brown (1897) A.C. 615, Lord Herschell at 619 said (dealing with the need to ensure that the proper relief is claimed and that the court has jurisdiction to entertain the claim):
“My Lords, at an early stage of the argument of the appeal the question was raised whether the High Court of Justice has jurisdiction to entertain a claim for the recovery of expenses under the enactment I have just quoted, or to adjudicate upon it except by way of appeal otherwise than on the merits of the case, I feel bound to hold that it was not competent for the appellant to recover the expenses even if the respondents were liable for them, by acting in the High Court. The respondents were under no liability to pay these expenses at common law. The liability, if it exists, is created by the enactment I have quoted.
No words are to be found in the enactment constituting the expenses incurred a debt due from the owners of the vessel. The only right conferred is “to recover such expenses from the owner of such vessel in a court of summary jurisdiction.” I do not think the appellant can claim to recover by virtue of the statute, and at the same time by means other than those prescribed by the statute which alone confers the right.”
Appellant’s counsel has asked that the declarations in claims 1 and 2 be granted he having conceded, quite properly, in my view, that the court cannot properly grant the injunction in claim 3. In my view, neither the declarations claimed in claims 1 and 2 nor the order of injunction claimed in claim 3 can in law be made in favour of the plaintiff/appellant. Lord Davey in his judgment in Barraclough v. Brown (supra) said:
“1 only desire to express my dissent from the contention of Sir Walter Philborrore repeated by his learned junior, that although the High Court could not make any judgment or give any relief in this action, the court might make a declaration binding the rights of the parties. In my opinion, this is altogether wrong.
The argument is founded on Order XXV of the High Court Rules and Orders which provide that the court may make binding declarations of right whether any consequential relief is or could be claimed or not. The power of the court of chancery to make declarations of right without giving consequential relief was introduced by section 50 of the Chancery procedure Act 1852. That section did not contain the words in the present rule ”whether any consequential relief is or could be claimed or not” and it was held by Kindersley V.C. in Jackson v. Turnley (1853) 1 DR. 617 and Wood V-C. in Rooke v. Lord Kensington (1856) 2 K & J. 753, that it only enabled the court to make declarations of right in which the plaintiff might have consequential relief if he chose to ask for it. The additional words are introduced to enlarge the power of the court to make declarations in cases where from the nature or the circumstances of the case no substantive relief could be given by the court.”
It is noteworthy that section 37(b) of the 1979 Constitution gives a right to or recognises the right of a candidate to sponsor himself as an independent candidate.
It is this self- sponsorship that an independent candidate enjoys when he contests an election to an office or a legislative house. Expressly, the 1979 Constitution accords a registered political party the right to sponsor any candidate. It enjoys the same right as an individual citizen and it is interference with the exercise of this right that the court is now called upon to do. Has the court any jurisdiction to so compel the N.P.P. to exercise the right in favour of any person?
The touchstone of justiciability of a controversy or dispute is injury to a legally protected right. (per Burton and Douglas, JJ. dissenting in Joint Anti-Facist Refu-gee Committee v. McGrath 341 US 123, 71 Set. 624, 95 L Ed 2nd 817).
In deciding whether a claim is justiciable, a court must determine whether the duty asserted can be judicially identified and its breach judicially determined and whether protection for the right asserted can be judicially moulded. Powell v. McCormack 395 US 486, 89 Set. 1944 L Ed 2nd 491).
No justiciable dispute or controversy is presented to a court when the parties seek adjudication of only a political question. Flast v. Cohen 392 US 83, “SC. 1942 20 L Ed 2nd 947).
The decisions of questions of a political nature is exclusively for the political party, the executive and the National and State Houses of Assemblies. (See The Divina Pastora 4 Wheat 524 L Ed 512).
The lack of satisfactory criteria for a judicial determination of a political question is one of the dominant considerations in determining whether a question falls within the category of political question. The other is the appropriations of attributing finality to the action of the political departments and political parties under the Nigerian Constitution and system of government. (See Baker v. Carr 369 US 186, 82 SC. 891, DL Ed 2nd 663).
Justiciable disputes are cases and controversies which limit the business of the courts to questions presented in an advisory context and in a form historically viewed as capable of resolution through judicial process and in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure the courts will not intrude into the areas committed to the other branches of government. See section 6(6)(B) Constitution of the Federal Republic of Nigeria 1979.
Justiciability is a term of art employed to give expression to the dual limitation placed upon the courts by the case and controversy doctrine. (See Flast v. Cohen 392 US 83, 88 Set. 194220 L Ed 2nd 947).
The extent of the courts’ judicial powers defined as embracing “all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person” in section 6(6)(b) of the 1979 Constitution brings out forcibly the case and controversy doctrine.
The questions I have asked myself are twofold; the first question is ”what is the matter between the parties in this appeal?”
and the second question runs:
“does the action and proceedings relating to the matter in dispute raise any question as to the civil rights and obligation of the appellant?”
The jurisdiction conferred by section 236 of the 1979 Constitution is to hear and determine any civil proceeding in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue.
Is the right to sponsorship by a political party a legal right vested in the appellant?
If it is, is the existence or extent of it in issue? From all I have said above, I am of the opinion that it is not a legal right to which the appellant is entitled as of right either under the Constitution, the Electoral Act 1982 or any statute law. It is not a right under common law or customary law.
Furthermore, the criteria to be used in determining the proper candidate to be selected are not available to courts to enable it adjudicate on the matter.
I think on these questions, the appeal failed and for the above reasons I dismissed it with costs to the respondents fixed at N300.00 on the 15th day of August, 1983.
IRIKEFE, J.S.C.:
When this appeal was argued before us on 15th August, 1983, it being a matter touching upon the right of one of the parties to participate in one of the national elections then pending, we formed the view that it should be dealt with promptly. We were also in no doubt that the appeal lacked merit and we accordingly dismissed it, stating there and then that we would give our reasons for the dismissal later.
I have since been privileged to have a preview of the lead reasons for dismissal just read by my learned brother, Obaseki, J.S.C. The said reasons reflect my thinking on this matter.
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. If a court could do this, it would in effect be managing the political party for the members thereof.
The issue of who should be a candidate of a given political party at any election is clearly a political one, to be determined by the rules and constitution of the said party. It is thus a domestic issue and not such as would be justiciable in a court of law. The Federal Court of Appeal was thus right to decline jurisdiction and nothing that was urged before us was capable of deflecting me from this view. I also agree with the order made by Obaseki, J.S.C. on costs.
BELLO, J.S.C.:
I have read in draft the reasons for judgment written by my learned brothers, Obaseki and Aniagolu JJ.S.C., with which I agree. My additional observations are as follows:
The constitutional provisions which directly or indirectly empower political parties to sponsor candidates for elections to the National Assembly or a State House of Assembly are in sections 201, 37(b) and 64(1)(g) of the Constitution, 1979:
“Section 201. No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”
“37. Every person shall be, entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
(b) a person elected to a legislative house as a candidate who was not sponsored by any political party shall not be entitled to join or declare himself to be a member of a political party until the general election next following his election as such candidate.”
“64(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if-
(g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected: ”
Sections 28(1), 30(1)(e) and 83(2) of the Electoral Act, 1982 reinforce the aforesaid constitutional provisions in these terms;
“Section 28(1) Every registered political party shall, not later than 90 days (or such later day as may be directed by the Commission) before the date appointed for any general elections to be conducted pursuant to this Act, deliver the complete list of the names and other relevant particulars of all the candidates the party proposes to sponsor for elective offices in respect of all the elections (or such number thereof as the party intends to contest) to the Commission.
Section 30(1) The nomination paper shall be in the Forms EC. 4A, 48, 4C, 4D or 4E in the Schedule to this Act as may be appropriate for the election and shall be signed by the candidate and by the persons nominating him and the nomination papers shall contain the following particulars, that is –
(e) a statement by the candidate, unless he is an independent candidate, as to the name of the political party which sponsors his candidature.
Section 83(2) Where there is doubt as to whether a candidate is sponsored by a political party the Commission shall resolve same by consulting the leader of the political party concerned.”
Upon reading the above constitutional and statutory provisions together, it seems to me that the power and the right to nominate and sponsor a candidate to an election are vested in a political party and the exercise of such power and right; is a matter within the discretion of a political party. A court has no jurisdiction to nominate a candidate for a political party or to compel a political party to nominate or sponsor a particular candidate.
ESO, J.S.C.:
I have had the advantage of reading in advance the reasons for judgment which have just been read by my learned brother Obaseki J.S.C. I agree with the reasons he has given and will respectfully adopt those reasons for the decision I took in dismissing the appeal of the appellant.
ANIAGOLU, J.S.C.:
The reasons for judgment just read by my learned brother, Obaseki, J.S.C., were made available to me in draft. I agree.
It would perhaps be useful to emphasize that the crux of the principle involved in this appeal is whether the power of the courts should be employed to force a political party to sponsor the candidature of any of its members. In the first place, the statute, namely, the Electoral Act, 1982, under which the parties have formed a political party and have engaged in a nomination and sponsorship exercise, has by its section 83, stated the procedure which the Federal Electoral Commission should adopt in settling who, of the contending candidates, is sponsored by the political party. It states that the Commission should consult the leader of the political party concerned. This implies that whoever the leader certifies to the Commission to be the one, should be accepted by the Commission. The statute – the Electoral Act 1982 – having stipulated the procedure to be followed, that procedure must be followed. It does not make sense to me, as it did not make sense to Lord Herschell in Barraclough v. Brown (1897) AC 615 at 620, that the appellant “can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right.”
The appellant is seeking to be sponsored to the Senate by the Nigerian Peoples Party under the Electoral Act, 1982, but refuses to adopt the procedure prescribed by the Electoral Act, 1982, for settling the dispute when there are competing claims, by members of the party, to sponsorship of the party. In the second place, common sense dictates that a political party which will have the responsibility of carrying its sponsored candidate through the rigors of campaigns for election, must be the one, and not the courts, to choose from its members the candidate 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. As the saying goes:
‘One man may take a horse to water but a thousand men may not force it to drink.’
The courts, as a matter of principle, do not make orders in vain.
In the instant appeal, the issues raised on whether the various internal Committee proceedings of the party were regularly conducted and whether there was a lapse in the observance of the rules of natural justice are issues which the court will go into after it has decided that the matter is one in respect of which it will exercise jurisdiction.
In my view, this is not a matter which the High Court ought to have assumed jurisdiction. It would have been different if the appellant had sued for a breach of contract between himself and the party, claiming damages for breach.
Mr. Ahamba, appellant’s counsel, had argued that since the court had unlimited power to give declaratory judgments, the appeal court should have held that the High Court was entitled to give a declaratory judgment proclaiming to the entire world the ascertained rights of the appellant. The obvious answer to this is that the undoubted power of the High Court to deliver a declaratory judgment is discretionary and must be exercised with care, caution, and judicially:
Ewerami v. A.C.B. Ltd. (1978) 4 S.C. 99.
Hanson v. Ratcliffe U.D.C. (1922) Ch. 49.
Francis v. Municipal Councillors of Kuala Lumpur (1962) 3 All E.R. 633.
As I have said, I agree with the reasons given by my brother, Obaseki, J.S.C., for our dismissal of this appeal on 15th August 1983 with N300.00 costs to the Respondents.
NNAMANI, J.S.C.:
I had the advantage of reading in draft the reasons for judgment just delivered by my learned brother, Obaseki, J.S.C. I agree with them.
Although copious provisions have been made for political parties in sections 201 – 209 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter known as the Constitution) and although considerable powers have been granted to the courts by the same Constitution, see sections 6(6)(b) and 236 thereof, I do not think that the courts can interfere in matters pertaining to political parties in all circumstances.
The main issue therefore for determination in this appeal was –
“Whether a court of law ought to make an order directing a political party as to which of two persons it ought to sponsor for an elective office.”
I would respectfully join my brothers in stating that the courts cannot and ought not. Such an order if made would be in vain particularly as the courts have no facilities with which to follow through what would be no more than an imposition.
Sponsorship by a political party of a candidate presupposes that that candidate is the best able person to carry out the programmes of that party in that constituency.
That is an issue which the court is not competent to judge. Besides, on selection of the candidate, it is the political party not the court which must provide the wherewithal for the election campaigns.
There is nothing in the Constitution, statute law or the common law which would justify such interference. Indeed section 83(2) of the Electoral Act, No.8 of 1982 which provides that
”where there is doubt as to whether a candidate is sponsored by a political party the Commission (i.e. Federal Electoral Commission) shall resolve same by consulting the leader of the political party concerned”
seems to suggest that the matter is beyond the realms of argument.
In the circumstances of this case, it seems to me that the only matter which would have properly called for determination by a court is the possibility of breach of the proprietary interest of the appellant. Regrettably that is not the matter before the courts. In my view, in the interest of the healthy growth of our democratic process, in an appropriate case (and I do not here decide that on the facts of this case this was necessarily one) political parties must by use of the remedy of damages be dissuaded from swopping one sponsored candidate for another without due regard to their constitution and/or the rules of natural justice.
It is for the reasons stated in the judgment of Obaseki J.S.C. referred to above and for these brief reasons that I dismissed the appellant’s appeal on 15th August, 1983 with N300.00 costs to Respondents.
UWAIS, J.S.C.:
I have had the privilege of reading in draft the reasons for judgment read by my learned brother Obaseki J.S.C. As it was for the same reasons that I dismissed the appeal on 15th August, 1983, I have nothing to add.
Appeal dismissed.
