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3PLR – HYDE ONUAGULUCHI V. PEOPLES DEMOCRATIC PARTY & ORS

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POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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HYDE ONUAGULUCHI

V.

PEOPLES DEMOCRATIC PARTY & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 12TH DAY OF JUNE, 2013

CA/E/360/2012

3PLR/2010/32(CA)

 

BEFORE THEIR LORDSHIPS

ABUBAKAR JEGA ABDUL-KADIR, JCA

MOJEED ADEKUNLE OWOADE, JCA

ISAIAH OLUFEMI AKEJU, JCA

 

BETWEEN

HYDE ONUAGULUCHI – Appellant(s)

AND

  1. PEOPLES DEMOCRATIC PARTY
  2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
  3. SENATOR IKE EKWEREMADU – Respondent(s)

 

REPRESENTATION

Chief A.O. Mogboh, SAN with M.A. Okafor (Mrs.), Esq.,  C. Edeh Esq., C.I. Chiwuzie, Esq., O.U. Enechioyia, Esq., – For Appellant

AND

H.N. Ugwuala for the 1st Respondent.

Peter Eze for the 3rd Respondent with Tochukwu Odo and Kevin Eya.

E.E. Ogbodu for 2nd Respondent. – For Respondent

 

ORIGINATING STATE

Enugu: Federal High Court

 

MAIN ISSUES

ELECTORAL MATTERS – INTRA-PARTY NOMINATION:- Jurisdiction of court to questions arising therefrom – Whether court can manage political parties or interfere in their internal affairs – Proper treatment of

ELECTION MATTERS – INTRA-PARTY NOMINATION OF CANDIDATE FOR ELECTION:- Parallel primaries of a political party – Jurisdiction of court to entertain questions as to which of the primaries is the valid one and thus conferred a right of candidature on its declared winner parties to represent the political party in an election – Section 87(4)(b)(ii)(c)(ii) and (9) of the Electoral Act 2010 (as amended) in review – Duty of an aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate to bring himself within the purview of Section 87(4)(b)(ii)(c)(ii (9) of the Electoral Act 2010 (as amended) for his complaint to be justiciable – Effect of failure thereto

PRACTICE AND PROCEDURE – APPEAL:- Ground of Appeal – One which no Issue for Determination was distilled from – Legal standing – proper treatment of by court

PRACTICE AND PROCEDURE – COURT:- Court of Appeal – Rule that it is bound by the decisions of the Supreme Court and its own previous decisions  –  Legal effect

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – STARE DECISIS:- Decision of the Supreme Court – Bindingness of on all other courts in Nigeria – State of facts that must be proved before a decision of the Supreme Court is deemed applicable

PRACTICE AND PROCEDURE  – JURISDICTION:- Where a court declares itself bereft of jurisdiction to entertain any matter – Proper order to make

 

 

 

MAIN JUDGMDENT

ISAIAH OLUFEMI AKEJU, J.C.A. (DELIVERING THE LEADING JUDGMENT):

At the Federal High Court holden at Enugu, the appellant who was the plaintiff commenced Suit No. FHC/EN/64/2011 through the originating summons filed on 22/3/2011, against the 1st and 2nd respondents as the defendants seeking the determination of the following questions:

  1. whether having regard to Section 87 (1) (2) & (3) of the Electoral Act 2010 (as amended) and paragraphs 27 (v), 30 (e) (f) and PART V of the 1st defendant’s Electoral Guidelines for Primary Elections 2010, the Exclusion of the plaintiff after having been screened and cleared by the 1st defendant having satisfied all the necessities from participating in the Primary Elections to the Enugu West Senatorial Seat of Enugu State, can be said to satisfy the requirement of fairness and the Law.
  2. Whether having regard to Section 87 (1), (2), (3) and (9) of the Electoral Act 2010 (as amended) which requires that each qualified aspirant shall be given the opportunity of being voted for and the candidate of each political party shall emerge through either direct or indirect primaries, the purported primary election of the 1st Defendant on January 11, 2011 which excluded the plaintiff from being voted for, can be a valid primary election from which the 1st Defendant can produce a lawful candidate for the Enugu West Senatorial Election.
  3. Whether having regard to Section 87 (4), (c) (1) of the Electoral Act 2010 (as amended) and Paragraphs 28A (1) and B, PART V of PDP Electoral Guidelines for Primary Elections 2010, the purported holding of the Enugu West District National Assembly Primary Elections by the 1st Respondent on January 11, 2011 at Awgu instead of Oji river which is the 1st Defendant’s Enugu West Senatorial district Headquarters without giving notice of the designated venue or centre and specified date to the plaintiff before the Primary Elections, can be said to satisfy the requirement of fairness and the Law.
  4. whether having regard to Paragraph 15 (c) (1) of Third Schedule of the 1999 Constitution and Section 86 of the Electoral Act 2011 (as amended) the certification by the 2nd Defendant that the Enugu West Senatorial Primary Election purportedly held at Awgu on January 11, 2011 by the 1st Defendant, satisfied the requirement of the Law is sustainable whereas: the plaintiff who was qualified and cleared by the 1st defendant to contest, had no notice of the purported primary election and was excluded from the said primary election as shown on the primary election declaration paper (attached herewith) which had the names of OAU Onyema, Victor Umebuani and Ike Ekweremadu as the only three contestants; the purported primary election was said to have been held at Awgu instead of Oji River which is Enugu West District Headquarters of PDP; there was no notice given to the plaintiff of the purported primary election, the 2nd defendant had no letter from the 1st defendant, signed by Dr Okwesilieze Nwodo, the then Chairman of the 1st defendant, stating the names of contestants and the authenticated delegate list.
  5. Whether having failed to conduct a lawful primary election for the Enugu west Senatorial Zone purportedly held on January 11, 2011, the 1st defendant can present any other candidate as substitute other than the plaintiff who won the primary election conducted on January 10, 2011 at Oji river since the 1st defendant failed to conduct any other primary election at 1st defendant’s Enugu West Senatorial District Headquarters at Oji River except that which was won by the plaintiff on January 10, 2011 as stipulated by both the 1st defendant’s guidelines for the said primary election, and Section 87 (4) (c) (1) of the Electoral Act 2010 (as amended).
  6. Whether the plaintiff is not entitled to be the one duly returned as elected in the Enugu West Senatorial Primary Election conducted on the 10th of January, 2011.
  7. And as a corollary, whether the plaintiff is not entitled to recover from the 1st defendant the sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) being the sum paid as expression of interest and nomination forms respectively but was expressly excluded from participating in a lawful primary election.

 

Consequent upon the above questions, the appellant sought the following reliefs and orders:

  1. A declaration that the holding of the Enugu West National Assembly (Senate and House of Representatives) primary elections by the 1st respondent at Awgu on January 11, 2011 without giving notice of designated venue or centre and specified date to the plaintiff before the said primary elections, is a nullity.
  2. A declaration that the purported holding of the Enugu West National Assembly (Senate and House of Representatives) primary elections by the 1st defendant/respondent at Awgu on January 11, 2011 without giving the plaintiff opportunity of being voted for by excluding him from the Senatorial primary election is a nullity.
  3. A declaration that the 1st defendant cannot validly present any other name other than the plaintiff’s name as its candidate for Enugu West Senatorial Zone for the April 2011 National Assembly Election in Enugu State since he verily believes that had he been given notice of the purported primary election of January 11, 2011 and had his name been on the ballot, he was sure to win the primary election as he did in the primary conducted on 10th January, 2011.
  4. A declaration that the 2nd defendant cannot accept any replacement in substitution of the plaintiff by any reason whatsoever having won the primary election conducted on 10th January, 2011 and there was no cogent and/or verifiable reason for the secret primary election of January 11, 2011, which excluded the plaintiff.
  5. A declaration that the plaintiff is entitled to be the one duly elected and be the candidate of the PDP for the Enugu West Senatorial Zone having been elected in the primaries of 10th January, 2011 and would have won the purported Senatorial primary election of January 11, 2011 if he was given the opportunity of being voted for by authentic delegates list approved by the PDP and signed by the then National Chairman of the 1st defendant, Dr. Okwesilieze Nwodo.
  6. An order setting aside the purported forwarding by the 1st defendant to the 2nd defendant and/or recognition by the 2nd defendant of any other name as the candidate of the 1st defendant other than the name of the plaintiff.
  7. An order of mandatory injunction restraining the 1st and 2nd defendants from recognising or purporting to recognise, or acting on or carrying into effect or doing anything whatsoever or taking any step on the declaration of result purporting the names of Ike Ekweremadu as the candidate for Enugu West Senatorial District under the platform of the 1st defendant.
  8. An order of interlocutory injunction restraining the 2nd defendant from acting or further acting on or in any way publishing the names and photographs of any other person other than the plaintiff as candidate of the 1st defendant for the National assembly Election in Enugu State on the ballot paper or in any other document as it pertains to Enugu West Senatorial Election of 2011.
  9. An Order of perpetual injunction restraining the defendants, their agents or servants from tampering with the victory of the plaintiff in the January 10, 2011 Enugu West Senatorial primary election as candidate of the 1st defendant for Enugu West Senatorial primary election in Enugu State in the April 2011 General Elections.
  10. An Order of the Honourable Court affirming the primary election of 10th January, 2011 that produced the plaintiff as the only valid and authentic primary election for Enugu West Senatorial primary election in Enugu State.
  11. (a) An Order affirming the plaintiff as the lawful candidate of the 1st defendant for the Enugu west Senatorial primary election or in the alternative.

(b)     An Order nullifying the 1st respondent’s Enugu West Senatorial primary election of 11th January, 2011.

  1. An order of the Honourable Court entering judgment against the 1st defendant for the aforesaid sum of N2, 200,000.00 (Two Million, Two Hundred Thousand Naira) and interest thereon.
  2. An order setting aside the purported primary election conducted by 1st defendant on January 11, 2011 for Enugu West Senatorial Zone at Awgu instead of the constituency headquarters of Oji and which excluded some aspirants.
  3. An Order setting aside the purported primary election of the 1st defendant on January 11, 2011 at Awgu for the Enugu West Senatorial Zone which excluded qualified aspirants the plaintiff being one.
  4. An Order setting the declaration by the 2nd defendant dated January 11, 2011 in respect of the 1st defendant’s Enugu West National Assembly primary election held at Awgu on January 11, 2011 which stated that the said primary election satisfied the requirement of fairness and the law.

 

The plaintiff also sought the costs and expenses of the action, as well as:

(a)     Payment for the nomination form

(b)     Costs and expenses of recovering the sum including Solicitor’s fees.

The Originating summons was filed with a supporting affidavit of 30 paragraphs to which exhibits were attached. By the motion on notice filed on 27/4/11 with affidavit of 17 paragraphs in its support, Senator Ike Ekweremadu (now 3rd respondent in this appeal) applied to be joined as a defendant at the trial court, and was joined as a 3rd defendant.

 

As the then 3rd defendant, the 3rd respondent in this appeal on 11/6/12 filed a Notice of Preliminary Objection to the appellant’s action and prayed the trial court for an order striking out the Suit for lack of jurisdiction based on the grounds inter alia, that;

“2.     The plaintiff in the affidavit in support of the originating summons contends that of the alleged two senatorial primary elections held on 10th which produce him as the candidate of PDP and 11th January 2011, which produced Senator Ike Ekweremadu as the candidate of PDP this court should uphold the one allegedly held on 10th January, 2011 as valid and declare the one held on the 11th January, 2011 as null and void and of no effect.

  1. This suit, in essence is for the court to decide which of the two primary elections of the 1st Defendant, as alleged by the plaintiff which took place in January 2011, is the valid one; and consequently, which of the persons as alleged by the plaintiff to have been elected at the two different primary elections is the validly nominated candidate of the 1st Defendant for the April 2011 senatorial election for Enugu West District in Enugu State.
  2. On the authority of the Supreme Court decision in Senator Yakubu Garba Lado v. Congress for Progressive Change (CPC) (unreported) consolidated Suit No. SC/157/2011 and SC.334/2011 delivered on 16th December, 2011, this court lacks jurisdiction to entertain and determine the question as to which of two or more alleged primary elections of a political party for the election of such party’s candidate for an office in a general election is the valid primary election for the purpose of determining who as between two or more contending candidates or persons is the duly nominated candidate of a political party.
  3. The court has no jurisdiction to entertain this suit and or make the declarations sought as the issues in the suit is non justiceable.”

 

In reaction to the affidavit in support of the objection, the (plaintiff) appellant filed a counter affidavit of 12 paragraphs on 19/6/12, and after considering the relevant processes including the written addresses of the learned Counsel, the learned trial judge, D.V. Agishi J. delivered a ruling on 13th July, 2012 and held that the court lacked the jurisdiction to try the (plaintiff) appellant’s action in consequence of which he struck out the suit.

 

Dissatisfied with the decision of the trial court aforesaid, the appellant filed Notice And Grounds of Appeal on 27/7/12 with three grounds of appeal, and in prosecution of the appeal before this court, the Appellants’ Brief of Argument settled by Chief A.O. Mogboh SAN was filed on 24/10/12 with two issues formulated for determination as follows:-

  1. Whether in the circumstances of this case the trial court was right when it held that it had no jurisdiction.
  2. Whether the case of Senator Yakubu Lado V. Congress for Progressive Change CPC Suit No. SC/157/2011 and SC/344/2011 delivered on 16th December, 2011 is on all fours with the instant case.

 

The learned Senior Advocate proffered arguments on the two issues.

 

On the first issue it was submitted that the issue of jurisdiction is fundamental, and any decision taken by a court when it has no jurisdiction amounts to a nullity, no matter how well the decision might have been. It was submitted also that the issue of jurisdiction is a threshold matter that can be raised at anytime or even suo motu by the court. OKOYA V. SANTLLI (1990) 2 NWLR (PT. 131) 172; ATTORNEY GENERAL OF FEDERATION V. SODE (1990) 1 NWLR (PT. 128) 500; OSAFILE V. ODI (1990) 1 NWLR (PT. 137) 130, AND USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORGANISATION LTD (2001) 15 NWLR (PT. 735) 305 were cited.

 

It was contended that a person who has contested the primaries conducted by a political party but feels dissatisfied with the conduct thereof has access to court under Section 87 (9) of the Electoral Act (Amended) to examine whether the primaries were conducted according to the Act, the Constitution of that political party and its guidelines because the courts will never leave a political party to act as it likes without obeying its own constitution.

 

It was submitted that once a political party, in the instant case the 1st respondent screens, clears and sponsors any candidate to its primary the Federal or State High Courts have jurisdiction to determine whether;

  1. The primary was duly authorised by the 1st respondent’s National Executive Committee.
  2. The primary was conducted according to the Amended Electoral Act as well as the Constitution and rules of the 1st respondent.
  3. All the parties so sponsored and screened were all given the opportunity of being voted for.
  4. Whether the primary was conducted at the senatorial headquarters of the 1st respondent. The person who won the primaries authorised by the 1st respondent’s National Executive Committee does not become the candidate of the 1st respondent.

 

It was contended that the appellant, a bonafide member of the 1st respondent had paid a sum of N2, 200,000.00 for the party’s nomination form and was thereafter screened and cleared to participate in the primaries authorised by the 1st respondent’s National Executive Committee for the Enugu West Senatorial seat which was conducted at Oji River, the senatorial district Headquarters of the 1st respondent on 10/11/11 and scored the highest number of votes, but on 11/1/11, one Chief Secondus Uche and other officers of the 1st respondent ordered another primary which was organised by the State Executive of the 1st respondent without informing the appellant of any cancellation of the primary held on 10/1/11 and without notice of another primary, thereby wrongfully excluding the appellant and the 3rd respondent was returned.

 

On who organised the primary at which the 3rd respondent was returned, the learned SAN referred to paragraphs 7 and 12 of the 3rd respondent’s affidavit in support of his application for joinder and contended that exhibit 001 attached to the said affidavit is not a result sheet of 11/1/11 as stipulated in the guidelines of the 1st respondent while the result sheet of 11/1/11 but has 2010 on it and has no date was collected from 2nd defendant and certified. Paragraphs 28, 32, 33, 35, 38 and 40 of the affidavit of the 3rd respondent in opposition to the originating summons as well as paragraph 7.02 of the written address of the 3rd respondent’s learned Counsel at page 468 of the record as to how and where the primary election of the 11th January, 2011 was conducted were referred to and relied upon by learned SAN to conclude that the election of 11/1/11 was not conducted according to law.

 

It was argued that the 3rd respondent who stated in paragraph 28 of his affidavit that “…. The truth is that the National Headquarters of the party appointed two electoral panels for the conduct of the primary elections in Enugu State…” did not say that the panels were appointed by the National Executive Committee (NEC) of the party and failed to state those who were the members and chairman of the election panel or whether they were authorised by the 1st respondent’s NEC which is not the same as the 1st respondent’s National Headquarters. It was contended that the guidelines issued by the 1st respondent especially Clauses 27 (vi) 31 (a), (c), (d) and (e) thereof appeared not to have been followed in the election of the 3rd respondent who failed to state whether Mr. Knut Ndoma Egba who came from the 1st respondent to conduct the primaries was the chairman or that the Committee was set up by the NEC of the party as required by its Constitution and electoral guidelines.

 

It was submitted that from paragraph 7.03 of the written address of 3rd respondent’s Counsel, the court would conclude that the primary of 11/1/11 was organised and conducted by Engineer Vita Abba led executive of the 1st respondent in Enugu, thereby making the said primary “an illegal contraption that carries no right and a nullity” as held by Bode Rhodes-Vivour JSC in Emeka v. Lady Okadigbo SC.69/2012. It was submitted that a diligent reading of the relevant provision of the Electoral Act and the 1st respondents’ Constitution and Electoral Guidelines reveals that it is the NEC of the 1st respondent that is responsible for the conduct of party National primaries, and any primary conducted by the state chapter of the 1st respondent is a complete nullity.

 

The learned SAN contended that while the 1st respondent informed 2nd respondent’s headquarters of its primary election at Oji River on 10/1/11 and gave information to all sponsored candidates of the identity of the Electoral panel members for each state, and the date of the primary, neither the National Chairman nor Secretary of 1st respondent wrote to the National Headquarters of the 2nd respondent to inform it of any primary fixed for 11th January, 2011 and no information that the primary that took place on 10/1/11 had been cancelled and a new one fixed for 11/1/11. It was not denied that the purported primary of 11/1/11 was not authorised by the NEC of the 1st respondent. The regulation of the 1st respondent states clearly that each primary would hold at the Constituency headquarters office and that was Oji River where the appellant won his primary.

 

The learned Senior Counsel argued that the 3rd respondent did not exhibit any result at the trial court to show that he won the primary election of 11/1/2011, the result which the 3rd respondent showed as his result sheet was the one he obtained from the 2nd respondent and it is that of 2010 primaries on which there was no date.

 

It was further argued that the 1st respondent did not confirm that their NEC was responsible for the primaries of 11/1/11 but agreed that the primary was organised by the Executive in Enugu with observers from Abuja, the election was not publicised anywhere and candidates who were sponsored, cleared and screened were excluded from the election.

 

The appellant wrote a petition to the National Headquarters of the 1st respondent on 12/1/11 as required by the Regulations while another petition was written to the 1st respondent and the 2nd respondents, the Police, the State Security Services complaining about the brazen fraud before the filing of this originating Summons.

 

It was the contention of the appellant that he won the primary of 10/1/11 which he said was not denied by the 1st respondent. It was submitted that a specific allegation by an opponent not specifically denied should be deemed to have been admitted, citing AJOMALE V. YADUAT (No. 2) (1991) 5 NWLR (PT. 191) 266; INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 427; EJIDE V. OGUNYEMI (1990) 3 NWLR (PT. 141) 758; ALEGBE V. ABIMBOLA (1978) 4 SC 39.

It was submitted also that the 1st respondent that kept quiet at the trial court and refused to deny the allegations of the appellant against it was expected to speak up so as to help the court to determine the issue one way or the other, while INEC also remained neutral, citing UZODINMA V. IZUANASO (2011) 17 NWLR (PT. 1275) 30; BEATRICE EMEKA V. LADY OKADIGBO SC.69/2012 delivered on 6/7/12.

 

On the second issue, it was contended that the court had jurisdiction to inquire into which of the two primaries conducted at Oji River and at Awgu was valid.

 

As argued by the learned SAN, the learned trial judge who held that the Supreme Court case SC 334/2011, Senator Lado & Ors v. Congress for Progressive Change (CPC) & Ors applied to the instant case in that which of the candidates elected on 13th & 15th January, 2011 by the same body were validly elected was the dispute was not told that the Constitutions of the 1st respondent and that of the CPC are similar. In the instant case as further argued, there was one primary conducted by the National Executive of 1st respondent on 10/1/11 which was valid and another conducted on 11/1/11 by the PDP in Enugu which was invalid and ultravires and the judge had jurisdiction to inquire into the invalid one and pronounce the invalidity. The case of EMEKA V. OKADIGBO SC69/12 was relied upon.

 

It was submitted that the learned trial judge should have found that the primary conducted on the 11/1/11 by the State Executive of the PDP in Enugu by Engr. Vita Abba is unlawful, illegal, null and void and of no moment; citing CHIEF IKECHI EMENIKE V. PDP SC.443/2011 and SC 69/2012; EMEKA V. OKADIGBO that the trial court was bound to determine whether or not in the exercise of its rights of sponsorship, or nomination the political party has complied with the relevant provisions of the law, which in the instant dispensation is the Electoral Act (as amended).

It was argued that the court can declare which party process is right where two primaries have been held, and the Lado’s case applied by the trial court not on all fours with the instant case. It was also argued that any purported primary not authorised by the 1st respondent’s NEC is not valid and a primary conducted by the PDP State Executive and supervised by people from Abuja is invalid.

 

The Senior Counsel submitted that any primary in which parties were not given the opportunity to vote or the date is unknown and persons were denied the opportunity of being voted for is invalid. As further submitted, any primary not conducted in a town where the Senatorial District Headquarters is located is invalid and the court has jurisdiction to hear and determine these irregularities and has also the inherent jurisdiction under Section 6 (6) of the 1999 Constitution to inquire whether any money collected by PDP or any person for purposes of primary elections cannot be returned to the person who paid but was excluded from the primaries. The court has the jurisdiction to determine who won the primaries authorised by the 1st respondent’s NEC and therefore the candidate of the PDP at the April 2011 election.

 

We were urged to allow the appeal and invoke the powers in Section 15 of the Court of Appeal Act, and grant the reliefs sought by the appellant at the trial court.

 

The 1st Respondents’ Brief of Argument dated 25/1/13 and filed on 28/1/13 was deemed filed on 5/2/13. It was settled by H.N. Ugwuala Esq. of Counsel who observed that the appellant did not frame any issue relating to ground 3 of the appeal and urged that the ground be struck out, citing HANI AKAR ENT. LTD. V. INDO NIG. MERCHANT BANK LTD. (2011) 1 NWLR (PT. 1228) 326.

According to learned Counsel, the only issue for determination in this appeal is:

“Was the learned trial judge right when he struck out the appellant’s suit for want of jurisdiction.”

 

It was submitted that the jurisdiction of the trial court is determined by the claim of the plaintiff as endorsed on his Summons i.e. Writ or Originating; ATTORNEY GENERAL OF KWARA STATE V. OLAWALE (1993) 1 NWLR (PT. 272) 645. Also in determining whether it has jurisdiction to entertain the appellants’ claim as constituted before it, the only document the trial court will consider is the Originating Summons and the supporting affidavit attached thereto; FIRST BANK OF NIGERIA PLC V. ABRAHAM (2008) 18 NWLR (PT. 1118) 172; ADETAYO V. ADEMOLA (2010) 15 NWLR (PT. 1215) 169. In resolving the issue of jurisdiction raised in this appeal, the affidavit and/or Counter affidavit of the respondents before the trial court are not of any relevance. IGWE V. EZEANOCHIE (2010) 7 NWLR (PT. 1192) 61.

 

It was contended that the processes to be considered for the sake of this appeal are the Originating Summons, Affidavit In Support deposed to by the appellant; the Exhibits attached thereto and the Written Address, and a persusal of those processes will show that the appellant had sought to nullify the primary election of the 1st respondent held on 11/1/11 where the 3rd respondent was nominated as 1st respondents’ candidate for the April 2011 general election into the Enugu West Senatorial Seat on ground of the appellant’s wrongful exclusion therefrom, and to determine as between that primary election and that of 10/1/11 where the appellant was allegedly nominated which one was the validly conducted primary election for the nomination of the 1st respondent’s candidate for Enugu West Senatorial Seat.

 

It was further contended that the appellant’s affidavit in support of the originating summons shows that two parallel primary elections were held on 10/1/11 and 11/1/11 which produced two winners and the trial court’s finding as such was not appealed against, but the appellant had in the Brief of Argument contended that having found that two parallel primaries were conducted the trial court had the jurisdiction to enquire into the question of which of those two primary elections was valid and to pronounce on the invalidity of the other which argument is wrong in law and in fact.

 

The learned Counsel contended that in the effort of the appellant to give to the trial court the jurisdiction it does not possess in this case the learned SAN for the appellant abandoned the case put forward in the affidavit in support of the originating summons and relied on the counter affidavit filed in opposition to the 3rd respondents objection as the basis for his contention that the primaries of 11/1/11 did not have the blessing of the 1st respondent’s NEC which was not disclosed in the affidavit supporting the summons. It was submitted that a party must be consistent in stating his case, both at the trial court and on appeal; a party is not allowed to take a position in his pleadings and then do a summersault on appeal; AJINLE V. KELANI (1985) 3 NWLR (PT. 12) 248.

 

The learned Counsel contended that in resolving the issue of jurisdiction to entertain the appellant’s claim the 3rd respondent’s affidavit in opposition to the originating summons, the affidavit in support of the application for joinder and the appellant’s affidavit in opposition to the 3rd respondents’ preliminary objection are not relevant. It was submitted that the defence to an action, the counter affidavit to an originating summons and/or the other affidavits filed in respect of the application for joinder are of no relevance in resolving the issue of jurisdiction raised in this appeal; IGWE V. EZEANOCHIE (2010) 7 NWLR (PT. 1192) 61.

 

The learned Counsel submitted that where, as in the instant case there exists more than one primary election and the court has been invited to determine which of two primary elections confers on the appellant or the 3rd respondent the right to represent the 1st respondent, as in this case, as the candidate in the election into the Enugu West Senatorial Seat, the matter is taken away from the statutory jurisdiction of the trial court under Section 87 (9) of the Electoral act, 2010 (as amended). The case of LADO V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS (2011) 18 NWLR (PT. 1279) 689 was relied upon.

 

The learned Counsel contended that in the instant case the appellant has not predicated his claim on the primary allegedly held on 10/1/11 alone, but on two distinct primaries that produced two distinct winners on two different dates and wants the court to nullify the primary election of 11/1/11 in which he did not participate for the reason of exclusion and affirm that of 10/1/11 allegedly won by him. Reliefs (a), (b), (i) and (m) of the Originating Summons were referred to.

 

It was submitted that just like the Lado v. Congress for Progressive Change (supra) the appellant wants the court to pick as between the primary election of 10/1/11 and that of 11/1/11, which one confers the right of candidature on the parties to represent the 1st respondent. It was also submitted that the appellant who claimed to have been excluded from the primary election of 11/1/11 and therefore did not participate thereat lacks the capacity to approach the court for any redress in relation to that election and could not invoke the jurisdiction of the trial court under Section 87 (9) of the Electoral Act 2010 (as amended). Citing and relying on PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA & ORS (2012) 13 NWLR (PT. 1316) 85; EMENIKE V. PEOPLES DEMOCRATIC PARTY & ORS (2012) 12 NWLR (PT. 1315) 556; EMEKA V. OKADIGBO (2012) 18 NWLR (PT. 1313) 55.

 

We were urged to discountenance the submission of the learned SAN for the appellant that the election of 11/1/11 was not authorised by the NEC of the 1st respondent as that submission is not supported by the evidence of the appellant and it is not the appellant’s case in the originating summons. We were urged also to hold that this case not in anyway near to, Emeka v. Okadigbo (supra) or close to Emenike v. PDP (supra) in that no evidence exists in this case that the primary election of 11/1/11 was not authorised by the NEC of the 1st respondent.

 

It was contended that there was nothing to show that the primary of 10/1/11 which was originally fixed for 6/1/1 or was ever fixed for 10/1/11 as claimed by the appellant and there is nothing to show that the NEC of the 1st respondent fixed or authorised the holding of any primary election on 10/1/11, the 2nd respondent did not monitor that primary election of 10/1/11 and did not issue any report thereon, rather exhibit K by the appellant shows that the 2nd respondent did not only attend the primary of 11/1/11, but certified it as having been properly organised in line with the 1st respondent’s guidelines and other relevant laws.

 

We were urged to resolve this lone issue in favour of the respondents, dismiss the appeal and affirm the judgment of the trial court. The 2nd Respondents’ Brief of Argument settled by Emmanuel E. Ogbodu, Assistant Director Legal, INEC Enugu State and filed on 25/1/13 was deemed filed on 5/2/13.

 

The issue for determination in this appeal, as formulated by the learned Counsel is whether the honourable court was right in holding that it lacked jurisdiction to hear the case of the appellant.

 

It was submitted that the current position of the law is that neither the court nor the INEC (2nd respondent) has the power to interfere in the internal affairs of political parties. The learned Counsel stated that the 2nd respondent witnessed the primary election of 11/1/11 and knew that the 3rd respondent was the winner thereof to represent the 1st respondent in the election into the Senatorial Seat of Enugu West Senatorial District.

 

According to the learned Counsel, the trial court found that there were two factions of the 1st respondent that conducted primaries on 10/1/11 and 11/1/11 which respectively produced the appellant and the 3rd respondent as candidate to represent the 1st respondent whereby the court was called upon by the appellant to choose between two primaries of the 1st respondent and decide on who should be the candidate of the 1st respondent which is the same as in the case of Senator Yakubu Garba Lado & Ors v. Congress for Progressive Change (CPC) & Ors (2011) NSCQR 501 where the Supreme Court declined jurisdiction on the basis that the issue concerned the internal affairs of the political party.

 

Counsel urged us to follow the decision in Lado’s case and uphold the decision of the trial court declining jurisdiction to entertain the appellant’s case.

 

The learned Counsel emphasised that Section 87 (9) of the Electoral Act deals with the instance where the complaint relates to only one primary election in which the appellant participated, and not where two or more primaries have been conducted and the court is called upon to choose which of such primaries to disregard.

 

We were urged to dismiss this appeal.

 

The 3rd Respondent’s Brief of Argument dated 4/2/13 and filed even date but deemed properly filed on 5/2/13 was prepared by Ogochukwu Onyekwuluje Esq., learned Counsel who argued that the two issues formulated for determination by the appellant do not cover Ground 3 of the Notice of Appeal which ground must be deemed to have been abandoned and should be struck out on the authority of E.B. Ukiri v. Greco Prakla Nigeria Limited (2010) All FWLR (pt. 534) 54.
The learned Counsel then submitted one issue for determination of the appeal thus:

 

Whether the trial court was right when it struck out the suit on the ground that the court lacked jurisdiction to determine the suit.

 

The learned Counsel described jurisdiction as the foundation and strength of every decision and it is fundamental and pivotal in every decision, so that where a court lacks jurisdiction the whole matter collapses as the court cannot hear it; citing MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; EZOMO V. OYAKHIRE (1958) 1 NWLR (PT. 2) 195; NDIC V. CBN (2002) 7 NWLR (PT. 766) 272; ROTIMI AMAECHI V. INEC (2007) NWLR (PT. 1040) 504.

 

The appellants’ case, according to Counsel is that he was elected at the primary election of 10/1/11 as the candidate of the 1st respondent to contest the general election for Enugu West Senatorial District while the 1st defendant also conducted another primary election for the same post on 11/1/11 which the appellant admitted to have been conducted by an electoral panel sent from Abuja.

 

The learned Counsel contended that from paragraphs 15, 16 and 17 of the appellant’s affidavit in support of the originating summons, it was admitted by the appellant that two factions of the PDP existed in Enugu State and he belonged to the faction led by the executive that had the support of the then National chairman of the PDP, but the appellant did not provide evidence in his affidavit that the primary he won was conducted by officers of the 1st respondent sent from the National Headquarters in Abuja or the NEC of the 1st respondent. Counsel contended also that the primary election that produced the 3rd respondent was conducted by an Electoral Panel of the 1st respondent from the headquarters of the party in Abuja headed by Chief Ebenezer Babatope.

 

It was the argument of the learned Counsel that the case brought by the appellant was for the court to decide which was the valid primary election as between the purported primary election of 10/1/11 at Oji River organised and conducted by the new executives of the party and that of 11/1/11 organised by the Engr. Vita Abba led executives but conducted by the officers of the 1st respondent from the National Headquarters. The court found that the case placed before it was to decide which of the two primary elections was the valid primary election and came to a conclusion that the case was not within the jurisdiction of the court relying on the decision in Senator Lado & Ors v. CPC & Ors. (supra).

 

It was submitted that the facts of the instant case are on all fours with those in Lado’s case in that the appellant herein as in Lado’s case has claimed to have won the primary election conducted on 10/1/11 but that the 1st respondent refused to submit his name to the 2nd respondent, while some members of the party held another primary election on 11/1/11 at which the 3rd respondent was returned as winner and his name was submitted to the 2nd respondent by the 1st respondent.

 

It was submitted that the learned trial judge rightly declined jurisdiction after considering the facts of the case as shown in the affidavit before the court and the provisions of the Electoral Act in Section 87(4) (c)(11) and 9 and properly relied on the case of Senator Lado. It was contended also that the jurisdiction of the State High Court or Federal High Court to hear a complaint of a person aggrieved by a procedure adopted by a political party in the conduct of a primary election is limited to a given primary election and does not include the jurisdiction to decide or choose which of the alleged primary elections of a party has produced the party’s candidate.

 

The learned Counsel submitted that for an aggrieved person to rely on Section 87 (4) (b) (11) (c) (11) and (9) of the Electoral Act, 2010 (as amended), he must show that he was an aspirant at the primary election which he seeks to challenge, citing PDP V. SYLVA (2012) 13 NWLR (PT. 1316) 85. It was then contended that the appellant who chose to participate at the primaries of 10/1/11 cannot complain of the primary election of 11/1/11 at which he did not participate as he will not be covered by Section 87 (9) of the Electoral Act 2010 (as amended).

 

It was the submission of learned Counsel that for a court to follow the decision of a higher court it is sufficient if the facts are similar and are properly guided by the same legal principles as there cannot be two cases with the same facts, citing ADETOUN OLADEJI NIGERIA LTD. V. NB PLC (2007) 5 NWLR (PT. 1027). He then contended that the case of Senator Lado is applicable in the instant case because the facts are substantially the same.

 

It was submitted also that the issue of whether the primary election of 11/1/11 was conducted by the state executive of the 1st respondent or by the National executive now raised in this appeal was never raised in the court below, and it is too late to raise it now as it will amount to putting forward a case that is different from the one raised at the trial court and upon which the case was decided, citing ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (pt. 109) 250; EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556.

 

The learned Counsel submitted that the decisions of court in EMEKA V. OKADIGBO SC 69/2012 and EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556 are not of any help to the case of the appellant because the facts differ substantially from the case of Senator Lado. In Okadigbo’s case the processes before the trial court showed that the primary relied on by Prince Emeka was conducted by the state executive of the party at a time when the National headquarters had sent a panel to conduct the primary election in Anambra State and it was that panel that produced Okadigbo as the party’s candidate in the election while in the case of Chief Emenike the court held finally that the trial court had no jurisdiction to hear and determine the suit because the appellant did not participate in the valid primary of the party.

 

On the invitation of the appellant that this court should exercise jurisdiction under Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 to inquire into the issue of who won the primary as between the appellant and the 3rd respondent for the April, 2011 election the learned counsel submitted that this court has no such power under that provision of the Constitution while the conditions under which this court can exercise that power under Section 15 of the Court of Appeal Act, 2004 do not exist in this case, citing, EZEIGWE V. NWAWULU (2010) ALL FWLR (PT. 518) 748; PETER OBI V. INEC (2007) ALL FWLR (PT. 378) 1116; PDP V. SYLVA (2012) 13 NWLR (PT. 1316) 126.

 

On the relief for judgment against the 1st defendant for the sum of N2, 200,000.00 and interest thereon, the learned counsel said the relief was merely to claim the return of the nomination fee paid by the appellant.

 

On the whole the learned Counsel submitted that the learned trial judge was right to have struck out the appellant’s case.

At the hearing of the appeal, the learned Counsel for the parties adopted their respective brief of argument and relied on the arguments therein for the prayers they had sought in respect of the appeal.

 

The learned Senior Counsel for the appellant had filed as additional authority the judgment of the Supreme Court of Nigeria delivered on 7/12/12 in SC.272/2012 – Hon. Prof. Chudi Uwazuike & Anor V. Chief Austin Nwachukwu &. Anor. while the learned Counsel for the 3rd respondent forwarded to this court, the judgment delivered by the Court of Appeal, Enugu Division on 8/3/13 in CA/E/259/12 – Chief Francis Uchenna Ugwu & Ors v. PDP & Ors.

 

I had earlier on in this judgment set out the six questions posed by the appellant in his Originating Summons filed on 22/3/2011 and the reliefs sought consequent upon those questions. The appellant filed a supporting affidavit of 30 paragraphs with the Originating Summons and the facts that emerge from the affidavit are that the appellant had been a member of the Peoples Democratic Party (PDP) the 1st defendant (now 1st respondent, a duly recognised political party with National Headquarters at Abuja and official presence nationwide. The appellant paid the sum of N2,200,000 for his nomination form as an expression of his interest in the Senatorial Seat as indicated by the 1st respondent with the intent of standing for election into the Enugu West Senatorial District under the platform of the 1st respondent. According to him, the 1st respondent had advertised in a Newspaper that its primaries for Enugu West Senatorial District would hold on 6/1/11, but it was postponed to 10/1/11 and he (appellant) won the primaries on that day.

 

The depositions in paragraphs 10, 11, 12, 13, 14, 15 and 16 show that fresh congresses were held on 29th, 30th and 31st of December, 2010 as directed by the 2nd respondent, INEC and the 1st respondent and as authorised by the Court of Appeal, Enugu through its judgment of 23rd December, 2010 at which congresses new executives at Ward, Local Government and State levels were elected for the 1st respondent in Enugu State whereby delegates from the Enugu West Senatorial Zone elected at the fresh congress were the ones that voted for the appellant at the primary election held on 10/1/11.

The appellant deposed further that he was reliably informed by one Hon. Orji Okpara that some members of the 1st respondent had gathered at Awgu on 11/1/11 and conducted another primary election for the same Enugu West Senatorial Seat as well as the Constituent House of Representative Seats for the constituency. He claimed that the primary election of 11/1/11 was held behind his back but it was said to have been won by Ike Ekweremadu, the 3rd respondent herein who was returned as the winner, and the certification issued by the 2nd respondent in respect of the primary election of 11/1/11 shows that primary elections were conducted on that day at the venue for (1) Enugu West Senatorial primary election (2) Aninri/Awgu/Oji River Federal Constituency primary election and (3) Udi/Ezeagu Federal Constituency primary election.

 

The appellant deposed that he had written to the Chairman of the 1st respondent on 12th January, 2011 and variously to the chairman of the 2nd respondent and the Resident Electoral Commissioner in Enugu on 27/2/2011 and 1/3/2011 respectively to complain about the primary election of 11/1/11 and had sought from the 2nd respondent’s Enugu Office the copy of the result sheet submitted for the primary election of 10/1/11 but to no avail.

 

Consequent upon his joinder, the 3rd defendant (now 3rd respondent) filed his affidavit in opposition to the Originating Summons and on 11/6/12, he filed a motion on notice dated 1/6/12 with a supporting affidavit of 16 paragraphs at pages 445 – 461 of the record of appeal. The 3rd respondent had in the main prayed the trial court for an order striking out the suit in that on the basis of the grounds stated in the motion the trial court lacked jurisdiction to entertain the suit or make the declarations sought as the issues in the suit are not justiceable.

 

Wilson Agbapuonwu, a legal practitioner who deposed to the affidavit of 16 paragraph in support of the motion with the consent and authority of the 3rd respondent had deposed in paragraphs 6, 7, 8, 9 and 10 as follows:

“6.     The gist of the case of the plaintiff as expressed in the affidavit in support of his claim is as follows:

  1. That he contested PDP primary election for the April 2011 general election conducted by the new executive of the 1st defendant who he said were the authentic executive members of the party with powers to conduct the said primary election.
  2. That the said primary election was conducted on 10th January, 2011 at Oji river.
  3. That he was declared the winner of the primary election for the Enugu West Senatorial District and his name ought to have been submitted by the 1st defendant to the 2nd defendant as the candidate of the 1st defendant PDP.
  4. That the old executive of the party was dissolved by the National chairman of the party Dr. Okwesilieze Nwodo and a new executive was elected. That the new executives at a Congress elected delegates and the delegates from Enugu West Senatorial District elected him at a primary at Oji River as the candidate of the 1st defendant.
  5. The case of the defendant is summed up as follows:-
  6. That the primary election for the Senate and House of Representative for the 1st defendant party for the April general election which was originally fixed for 6th January, 2011 was rescheduled for 10th, 11th and 12th January, 2011 in view of the crisis in the party at the time.
  7. That the primary election for the National Assembly seat was conducted on 11th January, 2011 by officers from PDP Secretariat Abuja.
  8. That the 3rd defendant was declared winner of the said primary and his name was submitted to the 2nd defendant by the 1st defendant as its candidate for the April 2011 general election. That the primary election was conducted at Awgu on January 11, 2011.
  9. That the primary election was conducted by the Engr. Vita Aba led executive of the 1st defendant party – PDP.
  10. That no new executive committee of Enugu Chapter of PDP was elected as no Congress of the party took place in Enugu State.
  11. That I know that the fundamental issue for determination before this court in this suit which can be culled from the totality of the affidavit of the parties is which of the two lists of candidates from the two primaries allegedly held on the 10th January, 2011 on the one hand and the 11th January, 2011 on the other hand constitute the duly nominated candidates of the Peoples Democratic Party (PDP) for the general elections held in April 2011.
  12. That I know that the above issue which relate to the nomination of candidates by a political party for the general elections falls within the exclusive domestic domain of the political party.
  13. That I also know that the said issue is non justiceable and this Honourable Court lacks the requisite jurisdiction to entertain the same.”

 

In answer to the depositions stated above, the appellant filed a “Counter Affidavit In Opposition To the 3rd Defendants’/Applicant’s Motion On Notice/Preliminary Objection Dated 5/6/2012 And Filed On The 11/6/12” on 19/6/12 copied on pages 475-479 of the record of appeal. The appellant who was the deponent therein described paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the 3rd defendants’ (respondent) affidavit as false and reiterated the fact that he paid N2, 200,000 for the nomination and expression of interest form for the Enugu West Senatorial District seat and he was cleared for the primary election to contest that seat at the general election.

 

The appellant further deposed as follows inter alia:

  1. That the Applicant was joined by the Honourable Court on the 28/7/2011 pursuant to his application for joinder which was vehemently opposed by my Counsel, G. A. Ekoh Esq.
  2. That my said Counsel, G. A. Ekoh Esq. informed me and I verily believe him as follows:-
  3. That my case/complaint is that apart from the fact that I contested and won the primaries of 10/1/2011 of Enugu West Senatorial Seat of the 1st Defendant, I was wrongfully and unlawfully excluded from the purported primaries of 11/1/2011, which was not authorised by the 1st Defendant NEC and my nomination fee of N2, 200,000.00 (Two Million, Two Hundred Thousand Naira) was also not returned to me since I was qualified, cleared and sponsored by the 1st Defendant but was erroneously excluded. The fact is that the primary of 11/1/2011 was not authorised and is null and void of no effect whatsoever.
  4. That this suit is competent and the Honourable Court have (sic) the Jurisdiction to entertain same for two reasons

(a)     The issue of my wrongful exclusion from the said primary of 11/1/2011 is a reasonable and justiceable cause of action, since the said primary was not authorised by the 1st Defendants’ NEC nor was the said illegal primary of 11/1/2011 communicated to me at all.

(b)     That the 1st defendant having screened, cleared and sponsored me to contest the primary for Enugu West Senatorial Seat, if its lawful agents excluded me in error or by omission, I am at least entitled to a return of my nomination fees and this Honourable Court has jurisdiction to enforce the return of such monies, had and received by the 1st Defendant.

(c)     That the 1st Defendant has not and cannot say that its NEC authorised the unlawful primary of 11/1/2011, it cannot say that its NEC did not authorise the primary of 10/1/2011, it cannot say that I did not file my petition as required by its regulatory (sic) and it cannot say that NEC cancelled the primary of 10/1/2011.”

 

After listening to the parties and upon consideration of the facts as well as the Written Addresses, the learned trial judge in the ruling of 13/7/2012 found that two factions of the 1st respondent existed in Enugu State at the time material to the action and each of the factions conducted different primary elections at different locations on 10/1/11 and 11/1/11 respectively which elections produced the appellant on 10/1/11 and the 3rd respondent on 11/1/11 for the same Enugu West Senatorial Seat. The learned trial judge stated that,

“It is my finding therefore that the issue the plaintiff actually wants determined is that emergence of the 3rd defendant as a candidate of the party violated Section 87 (c) (11) and should not be allowed as a candidate for the election by the Commission.

My opinion is that since from the established facts two primaries took place by the two factions of the PDP, and produced two candidates of the political party for Enugu West Senatorial District, the case of Lado is still applicable here… I also want to think Counsel wants to take this complaint outside the purview of Lado’s case to confer jurisdiction on the court to try the matter. But as I said before this will take us back to decide which of the two primaries of a political party produced the nominated candidate. That dispute it has been held is not justiceable under the provisions of Section 87(4)(b)(ii); (c)(ii)(9). See the case of Lado supra. It was further held that once there arises a dispute as to which of two primaries conferred a right of candidature on the parties to represent a political party in an election, the matter is taken outside the purview of Section 87(4)(b)(11); (c)(11) and (9) of the Electoral Act 2010 (as amended).”

 

The learned trial judge then declined jurisdiction and struck out the appellant’s case.

 

Against this ruling of the trial court, the appellant raised three grounds of appeal in the Notice of Appeal filed on 27/7/12 while two issues were formulated in the Appellant’s Brief of Argument filed in pursuance of the appeal, in consequence of which the 1st and 3rd respondents have urged that ground 3 of the appeal should be struck out having not generated any issue for determination. For ease of reference Ground 3 of the anneal (without its particulars) states that;

“The learned trial judge erred in law when it refused to consider the 1st defendant’s Notice of Preliminary Objection with the substantive suit.”

Clearly the two issues formulated by the appellant had emanated from grounds 1 and 2 of the grounds of appeal which are (without the stated particulars);
Ground 1:

“The learned Trial Judge erred in law when it struck out Appellant’s Suit for want of jurisdiction.”

Ground 2:

“The learned trial judge erred in law when it held that the facts of this case are on all fours with those in Senator Yakubu Lado V. Congress for Progressive Change (CPC) (unreported) Suit Nos SC/157/2011 and SC/344/2011 delivered on 16th December, 2011.”

 

I have no doubt in my mind that no issue was raised and argued from ground three of the appeal. It is the law that a ground of appeal from which no issue is distilled or formulated is deemed abandoned and is liable to be struck out. See SAPO V. SUNMONU (2010) Vol. 5-7 (PT. 1) MJSC 35; OLAIYA V. STATE (2010) ALL FWLR (PT.514) 1; SUNDAY V. I.N.E.C. (2008) ALL FWLR (PT. 431) 985.

 

Based on this established principle, ground 3 of the appellant’s appeal is discountenanced and struck out.

 

The appellant’s first issue is whether the trial court was right when it held that it had no jurisdiction, and this is the lone issue raised and argued by all the respondents.

 

Jurisdiction is the right vested in the court to adjudicate and exercise authority over any matter placed before it. It follows that jurisdiction is so radical and fundamental to the competence of a court that where a court lacks jurisdiction it lacks the judicial power to entertain the matter. It is for this reason of its significance that an issue of jurisdiction may be raised by the parties or even by the court suo motu provided the parties are given an opportunity of hearing, or even on appeal because any decision taken by a court where it lacks jurisdiction is an empty decision, it is null and void no matter how well conducted the proceedings might otherwise have been. Where an objection to jurisdiction succeeds, the matter is disposed of at that stage without further proceedings. See NATIONAL BANK (NIG.) LTD. V. SHOYOYE (1977) 5 SC 181; THE ATTORNEY GENERAL OF LAGOS STATE V. THE HON. JUSTICE DOSUMU (1989) 6 SCNJ (PT. II) 134; OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508; IJEBU-ODE LG V. ADEDEJI BALOGUN & CO. LTD. (1991) SCNJ 1; AJOMALE V. YADUAT (No. 1) 1991) 5 SCNJ 172.

 

What determines the jurisdiction of the court is the claim of the plaintiff. See YALAJU-AMAYE V. ASSOCIATED REGISTERED ENGINEERING CONTRACTOR (1990) 6 SCNJ 149; ADEYEMI V. OPEYORI (1976) 9 & 10 SC 31; ONUORAH V. OKEKE (2005) 10 NWLR (PT. 932) 47; ANYA V. IYAYI (1993) 7 NWLR (PT. 305) 290. As explained by Onnoghen JSC in LADO V. CPC (2011) 18 NWLR (PT. 1279) 689 at 724 “where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject-matter of dispute or that the claim, in reality cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish same in determining whether the court has jurisdiction or not. The question becomes from the issues as joined in the pleadings, does the court have jurisdiction?” It thus becomes obvious that in determining whether it has jurisdiction in a particular situation the pleadings of the parties and even the evidence adduced thereon may become relevant processes or factors to be taken into consideration.

 

From the totality of the claim of the appellant and the various affidavit evidence which I had earlier on highlighted in this judgment, there is no doubt that this case borders on the nomination and/or sponsorship of a candidate by the 1st respondent for the Enugu West Senatorial seat in the 2011 general elections. The courts had taken this issue as a political question and had refrained from entertaining matters relating thereto on the basis that the court could not manage the political parties or interfere into their internal affairs. See DALHATU V. TURAKI (2003) 15 NWLR (PT. 843) 310; ONUOHA V. OKAFOR (1983) NSCC 494. See also the explanation by the Supreme Court in the recent decision in PDP V. SYLVA & 2 ORS (2012) 3-4 MJSC 99.

 

The exclusiveness of the power of the political parties in matters of nomination or selection of their candidates was tampered with under the Electoral Act of 2006 where by Sections 32 and 34 thereof, the issue of substitution of candidates or a candidate’s false particulars could be challenged in court. In the case of LADO V. CPC (supra), Onnoghen JSC stated at page 5717-718 that;

“It is in line with the above that the court have held that the question of the candidate a political party will sponsor in an election is in the nature of a political question which is not justiceable in a court of law. See ONUOHA V. OKAFOR (1983) SCNLR 224; (1983) NSCC 494.

However in 2006 following the enactment of Electoral Act 2006 particularly Section 34 thereof the absolute powers of political parties in relation to nomination of their candidates for election was tampered with by the legislature only to the extent and in relation to change/substitution of a nominated candidate whose names and particulars had been forwarded by the party to the INEC one hundred and twenty (120) days to an election.”

 

By virtue of the provisions of Section 87 of the Electoral Act, 2010 (as amended) a person who participated at the primary election of a political party and becomes aggrieved by the outcome of the election can approach a Federal High Court or a High Court of a State for redress. Section 87(9) provides that;

“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.”

 

In PDP V. SYLVA & ORS (supra) it was held at page 170 that the provision of Section 87 (9) of Electoral Act 2010 (as amended) has not derogated from the established principle of non-justiciability of a party’s discretionary power in choosing one of its members for elective office. In Lado’s case (supra) at page 725, Fabiyi JSC stated the position thus;

“Ordinarily, on the issue of nomination, there is no jurisdiction in the court. The position has been so for quite sometime now. See ONUOHA V. OKAFOR (1983) 2 SCNLR 244; (1983) NSCC 494.

The court is however vested with a limited jurisdiction which can be ignited only where there is a conclusive primary election conducted by the National Executive of the party. .. By virtue of the provisions of Section 87(4)(b)(11)(c)(ii) and (9) of the Electoral Act, 2010 (as amended), where there is one single primary and a contestant wins and his name is not forwarded to INEC, he can complain before the court…”

 

The reliefs sought by the appellant in his originating summons in the instant case as well as all the affidavit evidence relevant to the case have shown that there were two primaries conducted on 10/1/11 and 11/1/11. The appellant claimed to have won the primary election of 10/1/11 but did not participate at the one of 11/1/11 while the 3rd respondent who won the primary election conducted on 11/1/11 did not participate at the one conducted on 10/1/11. The name of the 3rd respondent was forwarded to the 2nd respondent by the 1st respondent as its candidate for the Enugu West Senatorial election of 2011 which he contested and won.

 

The trial court found from the facts of the case that two primaries took place and produced two candidates of the 1st respondent for Enugu West Senatorial District and the court is being asked to determine which of the two primaries conferred a right of candidature to represent the political party, or to annul the primaries of 11/1/11 won by the 3rd respondent but which the appellant did not contest.

 

I agree with this finding of the trial court. In Lado’s case (supra) the Supreme Court held that once there arises dispute as to which of the two primaries conferred a right of candidature on the parties to represent the political party in an election, the matter is taken outside the purview of Section 87(4)(b)(ii)(c)(ii) and (9) of the Electoral Act 2010 (as amended). It was specifically held that an aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii)(c)(ii (9) of the Electoral Act 2010 (as amended) for his complaint to be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party.

 

In the judgment of this Court in Appeal No. CA/E/259/2012 (unreported) delivered on 8th March, 2013, Agim JCA held at page 37 that, the decision in Lado’s case being the decision of the Supreme Court the trial court and even this court is bound by it. The learned JCA also stated at page 44 that

“Lade’s case therefore remains the clear authority on the point that such a dispute is not justiceable and is not within a court’s jurisdiction until the Supreme Court departs from it or decides differently.”

 

I agree with the learned trial judge that the principle of law established in Lado’s case applies to this case thereby making the claim of the appellant non-justiceable and the court lacking the jurisdiction to entertain same.

 

I resolve this issue in favour of the respondents.

 

On the appellant’s second issue, the learned senior counsel has argued that the case of Lado v. CPC is not on all fours with the instant case and can therefore not apply. The respondents argued per contra.

 

The case of Lado v. CPC was decided by the Supreme Court of Nigeria, and by the provision of Section 287(1) of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the Supreme Court is not only binding on the subordinate courts in Nigeria, it is enforceable by them. There cannot be any doubt that this court is bound by its own previous judgments and the judgments of the Supreme Court. See FOREIGN FINANCE CORPORATION V. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION & ORS (1991) 5 SCNJ 52.

 

In the judgment of this court in Appeal No. CA/E/259/2012 (supra) Agim JCA delivering the lead judgment restated the law on the use by this court of existing judicial authorities. Hear him;

“I agree with the submissions of the learned Senior Advocate for the 1st respondent and the Counsel for the 1st and 3rd – 7th respondents that it is not every fact in the precedent and pending case that must be considered to determine if two cases are factually similar. Only facts that are significant or relevant to the resolution of the question in the precedent case and the pending case that should be considered. The precedent case and the pending case do not have to be identical in all facts.”

 

Clearly it is the contention in the instant case that two primary elections were conducted on 10/1/11 and 11/1/11 and each of the appellant and the 3rd respondent has claimed to have won at the different elections and therefore entitled to be the candidate of the 1st defendant at the general election. The case of Lado v. CPC & Ors is also reported in a (2011) Vol. 12 part II MJSC 101, Onnoghen JSC stated the issue in that case at page 121 as follows-

“… It is very clear that while Appellants claim their right to represent the 1st Respondent in the general elections of April, 2011 as emanating from a primary election conducted on the 15th day of April, 2011, the 1st – 3rd Respondents deny same but claim that the only primary election conducted by the 1st Respondent from which its candidates were nominated for the election was held on 13th January, 2011… From the above undisputed facts, it is clear that the fundamental issue that called for determination by the trial court and which was decided, was which of the two (2) lists of candidates emanating from the two primaries constitutes the duly nominated candidates of the 1st Respondent for the general election in question… ”

At page 152 Peter-Odili JSC stated that –

“It is therefore not difficult for this court to see that what it is being called upon to do is outside the vision of Section 87 of Electoral Act, 2010 as amended and therefore the courts lack jurisdiction to enter into the discourse within the appeals since the court below also lacked jurisdiction.”

 

From the foregoing I am of the view that the learned trial judge correctly relied on the decision in Lado v. CPC to decline jurisdiction and by implication of this, this court is equally bereft of the jurisdiction to determine the issue in the claim of the appellant. Where a court lacks jurisdiction in respect of a case before it, the appropriate order the court can make is one terminating the proceedings and striking out the case. See NEMI V. STATE (1993) 2 SCNJ 139; OKOYE V. NC & F CO. LTD. (1991) 6 NWLR (PT. 199) 501.

 

It is for the reason of this lack of jurisdiction by the trial court that I will decline the invitation to invoke Section 15 of the Court of Appeal Act and assume jurisdiction in this case so as to grant the reliefs sought by the appellant at the lower court. The reason for this my decision is that one of the conditions that must be present for the application or invocation of Section 15 of the Court of Appeal Act is that the lower court must have the legal power to adjudicate in the matter. See OBI V. INEC (2007) ALL FWLR (PT. 378) 1116.

 

On the whole therefore the two issues formulated and argued by the appellant in this appeal are resolved against him. The appeal fails and it is dismissed, the consequence of which is that the order striking out the appellant’s claim by the trial court is affirmed.

 

I award costs of N30, 000.00 in favour of the respondents.

 

 

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.:

The judgment of my learned brother Akeju, JCA, which has just been delivered, was read by me before today. I agree that the appeal has no merit and the same is accordingly hereby dismissed.

 

 

MOJEED ADEKUNLE OWOADE, J.C.A.:

I have had the privilege of reading before now the lead judgment prepared by my learned brother ISAIAH OLUFEMI AKEJU, JCA.

Having accorded ample consideration and overview of the case and the submissions made therein by respective counsel, I am in complete agreement with the lead judgment. I adopt the reasoning and conclusion as mine.

 

Consequent upon the foregoing and without any hesitation, I hold that the appeal is unmeritorious and same is hereby dismissed by me. I abide by all the consequential orders made, including that of costs.

Law Nigeria Admin
Law Nigeria Admin

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