Chief Francis Uchenna Ugwu & Ors V. Peoples Democratic Party & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The Plaintiffs who claimed to have participated and won the primary elections conducted by the Peoples Democratic Party for the nomination of candidates in respect of the Enugu North Senatorial District, Igboeze North/Udenu Federal Constituency and the Udenu, Uzo Uwani and Nsukka East Constituencies of Enugu State respectively for the 2011 General Elections but whose names were not forwarded by the Party to the (INEC) instituted an action by Originating Summons at the Federal High Court Enugu in Suit No. FHC/EN/CS/47/2011 seeking declaratory reliefs that they were the people entitled to have their names submitted by the 1st defendant to the 2nd defendant as the candidates for the said elections.

The 3rd – 7th Defendants whose names the Party sent to the Independent National Electoral Commission to contest the election applied to be joined and the application was granted. They alleged that following series of complaints by aspirants on the conduct of the Enugu State House of Assembly and National Assembly primaries in Enugu North Senatorial District, the National Working Committee (NWC) of the Peoples Democratic Party ordered a re-run election for aspirants to membership of the state and National Assemblies in the Enugu North Senatorial District of the State. After the said re-run primaries, the 1st defendant submitted the names of the 3rd-7th defendants to the 2nd defendant as the duly nominated candidates of the PDP for the various elective positions in the forthcoming general elections.

The defendants filed Notices of preliminary objection and prayed the Court to strike out the suit for being non-justiciable and that the court lacked the jurisdiction to entertain same. The grounds for the applications were:-

1. That the fundamental issue for determination before the Court falls within the exclusive domestic domain of the political party – Peoples Democratic Party.
2. That the said issue is non – justiciable and as such this Court lacks the requisite jurisdiction to entertain same.

Learned counsel for the parties submitted written addresses.

On 16/5/2012, the learned trial Judge upheld the objection of the 1st defendant and dismissed the suit. The ruling came more than one year after the holding of the elections. The plaintiffs now appellants appealed to the Court of Appeal Enugu which dismissed the appeal on 8/3/2013. Not satisfied with the decisions of the two lower courts, they further appealed to this Court in the Notice of Appeal dated 18/3/2013 which contained 8 grounds from which the following four issues were distilled:-

1. Whether the recent decision of this Court in Senator Yakubu Garba Lado & Ors v. Congress for Progressive Change (2012) 48 NSCQR 501. (2011) 18 NWLR (part 1279) 689 is on all fours with the facts of this case and thus operated to wrest jurisdiction from the courts below with the matters in controversy (Grounds 1, 4 and 6)
2. Whether the interpretation placed on Orders 29 and 48 of the Federal High Court (Civil procedure) Rules 2009 by the court below led to a miscarriage of justice (Grounds 2 and 3)
3. Whether the decision of this Court in Senator Yakubu Garba Lado & Ors v. Congress for progressive Change & Ors is not a recipe for injustice having regard to section 87 (9) of the extant Electoral Act 2010 (Grounds 7 and 8)
4. Was the court below correct in the approach it took when it made material findings on issues which the trial court did not consider (Ground 5)

The 1st as well as 3rd – 7th respondents filed Notices of Preliminary objection. The 1st respondent urged this Court to strike out the appeal together with the suit as same have become an academic exercise. Apart from the objection the 1st respondent raised a lone issue for determination which is the same as the preliminary objection.

The preliminary objection of 3rd – 7th respondents is concerned with grounds 2, 6, 7 and 8 contained in the Notice of Appeal filed by the appellants. Apart from the preliminary objection, learned counsel for the 3rd – 7th respondents identified the following four issues for determination and they are:-

1. Whether the court below was wrong in upholding the decision of the trial court declining jurisdiction to entertain the appellants suit relying of (sic) the Supreme Court authority of Senator Yakubu Garba Lado & ors v. Congress for Progressive Change (2012) 48 NSCQR 501 (Grounds 1, 4, 6, 7 and 8).
2. Whether the court below was wrong in holding that the appellants did not challenge the merit of the trial court’s decision acceding to hear the preliminary objection at the stage it was heard (Ground 2)
3. Whether the court below was wrong in its interpretation of the provisions of Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 (Ground 3)
4. Whether the court below placed reliance of (sic) facts which the trial court made no finding (Ground 5).

1st Respondent’s preliminary Objection

The 1st respondent’s preliminary objection prayed this court for an order striking out this appeal and the suit from which the appeal arose as the same have become an academic exercise. One of the grounds in support of the application is that a favourable resolution of the appeal and the substantive suit will not confer any benefit on the appellants. Mr. Nnenna Nnaji who deposed to a 16 paragraph affidavit in support of the Notice stated as follows in paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the said affidavit:

“3. At the re – run primary election for the House of Assembly and National Assembly in Enugu North Senatorial District of Enugu State held on 20th January 2011, in which the appellants herein contested but lost, the 3rd – 7th respondents were elected candidates of the PDP for various elective positions for the April, 2011 general elections respectively, as follows, Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, Uzo Uwani State Constituency State and Nsukka East State Constituency Seat.

4. The said re-run primary election for the House of Assembly and National Assembly in Enugu North Senatorial District which held on 20th January 2011 was monitored by the 2nd Defendant/Respondent who thereafter issued a report on the conduct of the said re – run primary election.
5. The 1st Respondent/Objector herein submitted the names of the 3rd – 7th respondents as the duly elected candidates of the 1st respondent for the various elective positions for which they had been elected at the re-run primary election of 20/1/2011.
6. The Appellants/Respondents to this objection on 1st February, 2011 by an Original (sic) summons commenced the suit leading to the instant appeal at the Federal High Court Abuja (but later transferred to Enugu Division of the Court) claiming inter alia declarations that they, the Appellants/Respondents are the persons entitled exclusively to have their names submitted by the 1st respondent to the 2nd respondent as the candidates for purposes of contesting the April, 2011 general elections into the respective elective/political offices which they aspire to. They further claim (sic) an order of perpetual injunction restraining the 1st Respondent from submitting any other names other than their names as candidates of the 1st Respondent for the 2011 general elections, and also an order of perpetual injunction restraining the 2nd respondent from accepting the name of any person or persons in place of or in substitution for the appellants as the candidates for the April, 2011 general elections on the platform of the 1st respondent.
7. The trial court on 16th May, 2012 struck out the said suit on the ground that it lacked the jurisdiction to entertain the suit.
8. The 1st respondent did not at any time submit the names of the appellants to the 2nd respondent as the candidates of the party for the April, 2011 general election into the various elective/political offices which they aspire to.
9. I know as a fact that the 1st respondent can no longer submit the names of the appellants to the 2nd respondent as the Party’s candidate for election to the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, respectively for the April, 2011 general election as they aspire to in this suit.
10. Only the 3rd – 7th Respondents whose names were submitted by the 1st Respondent to and accepted by the 2nd respondent contested the April, 2011 general elections into the said offices for the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat Udenu Seat (sic) Constituency Seat, Uzo Uwani Constituency Seat, respectively as candidates of the 1st respondent and won. They were duly sworn in and have been in these elective offices since 2011.
11. The said 2011 general election to the offices for the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, Uzo Uwani Constituency Seat and Nsukka East Constituency Seat was conducted and concluded in April, 2011, almost three years ago, all election petition arising therefrom have been taken and concluded within the time allowed by law.

In the reply to the preliminary objection, learned counsel for the appellants observed that no reference was made to the affidavit in support of the preliminary objection in the arguments of learned counsel to the 1st respondent. This is not true because in the opening paragraph 2.10 on page 2 lines 9 – 10 of the 1st respondent’s brief, learned counsel stated as follows;

“The facts relevant to the preliminary objection as contained partly in the Records of Appeal and the affidavit in support of the objection are…”

And to buttress the claim that there was a re – run of the primaries which was monitored by the 2nd respondent who issued a report, learned counsel referred to paragraphs 6, 26 – 21 of the 1st respondents counter – affidavit on pages 206 – 207 and 212 – 213 of the records.

There is no denying the fact that the 1st respondent forwarded the names of the 3rd – 7th respondents as the candidates to contest the April, 2011 election for the Enugu North Senatorial Seat, the Igbo Eze North/Udenu Federal Constituency Seat and the three State Constituency Seats for Udenu, Uzo Uwani and Nsukka East. What the appellants are contesting is the re – run which they claim was never sanctioned by the National Working Committee of the PDP to which they annexed the extract of the NWC meeting of 14th, January, 2011 of their counter – affidavit dated 14th February, 2012. The list did not include any constituency throughout Enugu State where a re – run was to be conducted. However on 19th January, 2011 a letter signed by Prince Uche Secondus, the National Organising Secretary of the P.D.P was addressed to Hon. James Anbua, Secretary, State/National Assembly Electoral Panel, Enugu State informing him of his membership of an Electoral Panel for Election Re – Run for aspirants to membership of the State House of Assembly and National Assembly in Enugu North Senatorial District in Enugu State. (See page 243 of the records). This followed series of letters by other aspirants alleging that no primaries took place in the whole of Enugu North Senatorial Zone but rather that people gathered in the country home of the National Chairman, Dr. Okwesiliese Nwodo at Ukehe, Igbo – Etiti Local Government to compile, albeit fraudulently names of persons to present as candidates for all elective positions in Enugu North for the PDP.

As stated in the leading judgement of Agbim J.C.A. at page 940 of the records, it was as a result of the facts in the counter – affidavit that the appellants brought an application to amend the originating summons to contend that the re – run primaries of 20th January, 2011 were illegal and sought for a declaration to declare them as such. This application was still pending when the respondents applied for extension of time to bring an application to strike out the suit for being non justiciable and for lack of jurisdiction to entertain same.

The application to amend the Originating Summons dated 16th May, 2011 changed the complexion of the suit and the Court was now called upon to decide which of the two primaries that produced the appellants and the 3rd – 7th respondents was the valid primaries. By the time the amended Originating Summons was filed, the election had been held and winners declared. The learned trial judge in agreeing with the arguments of the learned counsel for the 1st respondent relied on Lado’s case to say that the Court lacks the jurisdiction to determine the validity of the two elections allegedly held or choose between the two lists of candidates by preferring one list of candidates to the other since this is the exclusive or sole domain of the political party. Although the learned trial Judge dismissed the suit instead of striking it out for lack of jurisdiction, I agree with the finding made by the lower court that the error did not occasion a miscarriage of justice since an order striking out the suit for non justiciability of the subject matter has the same effect as dismissing the suit.

In the argument of learned counsel for 1st respondent/objector on whether the instant appeal and the originating suit have nor become academic, it was submitted that a suit is academic where it is merely theoretical and of no practical utilitarian value to plaintiff even if judgement is given in his favour. It is argued that in the con of the present appeal, the determining factor on whether the appeal, the original suit and the issue arising therein have become academic is whether the decision will confer any right or benefit on the appellants. Learned counsel submitted that the court cannot grant the declaratory reliefs and injunctive orders which the appellants sought for in the originating summons filed on 1st February, 2011.

Learned counsel for the appellants argued that since the learned trial Judge declined jurisdiction and terminated the suit in limine and the Court of Appeal endorsed the decision, test of the correctness of that decision cannot become academic; moreso since this court decided in Congress for Progressive Change (CPC) & anor v. Hon Emmanuel David Ombugadu & anor (2013) 18 NWLR Part 1385) 66 that the Court has jurisdiction in a dispute as to which of two primaries of a political party is the correct one and who the actual victor is.

In the Originating Summons filed on 1st February, 2011, the appellants as plaintiffs prayed the Honourable Court in respect of each of the plaintiffs and for the respective Senate, Federal or State Constituency as follows:-

“1. A declaration that the 1st plaintiff is the person entitled exclusively to have his name submitted by the 1st defendant to the 2nd defendant as the candidate for election into the Senate from Enugu North Senatorial District in the 2011 general election on the platform of the Peoples Democratic Party.

2. A declaration that the plaintiff is the person entitled exclusively to have his name submitted by the 1st defendant to the 2nd defendant as the candidate for election into the House of Representatives from Igboeze North/Udenu Federal Constituency on the platform of the Peoples Democratic Party.
3. A declaration that the 3rd plaintiff is the person entitled exclusively to have his name submitted by the 1st defendant to the 2nd defendant as the candidate for election into the Enugu State House of Assembly from Udenu State Constituency on the platform of the Peoples Democratic Party.
4. A declaration that the 4th plaintiff is the person entitled exclusively to have his name submitted by the 1st defendant to the 2nd defendant as the candidate for election into the Enugu State House of Assembly from Uzo Uwani State Constituency on the platform of the Peoples Democratic Party.
5. A declaration that the 5th plaintiff is the person entitled exclusively to have his name submitted by the 1st defendant to the 2nd defendant as the candidate for election into Enugu State House of Assembly from Nsukka East State Constituency on the platform of the Peoples Democratic Party.
6. An order for perpetual injunction restraining the 1st defendant whether by itself, servants, agents or by any person whomsoever or howsoever from submitting any other names other than the names of the plaintiffs herein as candidates of the Peoples Democratic Party.
7. An order of perpetual injunction restraining the 2nd defendant whether by itself, servants agents or by any person whomsoever or howsoever from accepting the name of any person or persons in place of or in substitution for the 1st, 2nd, 3rd, 4th and 5th plaintiff as the candidates for the elections aforesaid on the platform of the Peoples Democratic Party.

The April, 2011 general elections in respect of which the appellants want to be declared exclusively (and no other) entitled to have their names submitted by the 1st respondent to the 2nd respondent as the candidates of the Party for the various constituencies in Enugu North Senatorial District was conducted and concluded almost four years ago and another general election is just around the corner. It is also not in doubt that the 1st respondent did not submit the names of the appellants as its State and National Assembly candidates for the said April, 2011 general election in Enugu State. At the time the Amended originating Summons was filed which introduced the fact that another primaries were conducted on 20th January, 2011 which produced the 3rd – 7th respondents as the candidates for the election, the election had already taken place but the issue still remained unresolved. The question remains as to whether the latter decision of this court in C.P.C. & Anor v. Hon. Emmanuel David Ombugadu & anor supra has altered the legal position on the non justifiability by the Court in deciding which of two primaries conducted by the party is the valid primary for the purpose of identifying the candidates who are supposed to be presented to the Independent National Electoral Commission for the election.

There seems to be a slight shift as regards the jurisdiction of the Federal/State/FCT High Court in deciding which of two primaries conferred a right of candidature on the parties to represent a political party in an election. In C.P.C. & Anor v. Hon. Emmanuel David Ombugadu & Anor supra this Court citing Section 6 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) held that the special jurisdiction vested in the High Court (Federal, State or FCT) does not derogate from the general jurisdiction of the High Court, being one of the courts established for the Federation.

The position which this Court had earlier taken in Lado’s case is that once there arises a dispute as to which of the 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) (ii), (c) (ii) and (9) of the Electoral Act, 2010 (as amended). In this regard therefore the lower court was wrong to affirm the decision of the Federal High Court, Enugu when it declined jurisdiction to entertain the appellants claim that they, were the persons entitled exclusively to have their names submitted by the 1st respondent to the 2nd respondent for election into the Enugu North Senatorial District, Igboeze North/Udenu Federal Constituency, Udenu Uzo Uwani and Nsukka East State Constituencies respectively to contest the election. On this score, I agree with learned counsel for the appellants that since the learned trial Judge held that the action was non justifiable and consequently declined jurisdiction which was endorsed by the lower court, an appeal to this court to test the correctness of the two lower courts, decision cannot be said to be academic. The preliminary objection of the 1st respondent is overruled and struck out.

3rd – 7th Respondents’ Preliminary Objection

The 3rd – 7th respondents raised objection to grounds 2, 6, 7 and 8 in the Notice of Appeal. Learned counsel pointed out that grounds 6 and 7 alleged errors in law but there is nothing in the particulars supplied what the errors are; instead they contain particulars of misdirection while ground 8 is completely bereft of any particulars.

It was argued that no proper issue was raised from ground 2. I find no merit in the objection to ground 2 because issue 2 in the appellant’s brief is said to have been distilled from grounds 2 and 3. The issue raised from the said grounds 2 and 3 is concerned with the application of Orders 29 and 48 of the Federal High Court Rules 2009. The objection to the said ground 2 is hereby overruled.

Having resolved the preliminary objection of the 1st respondent against it and in favour of the appellants, it is necessary to consider the amended originating summons vis a vis Section 87 (1) (4) (c) (i),(ii) (7) & (9) of the Electoral Act 2010 (as amended) which provides as follows:-

“87 – (1) A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions

(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below-

(c) in the case of nominations to the position of a Senatorial Candidate House of Representatives and State House of Assembly a political party shall, where they intend to sponsor candidates –

(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegated voting for each of the aspirants in designated centres on specified dates;

(ii) The aspirant with the highest number votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party.

(7) A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting

(9) 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 the political party has not been compiled 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.”

The appellants claimed that the special congresses which held between 9th, 10th and 11th January, 2011 and which they won were conducted by an Electoral Panel was constituted by the National Working Committee of the PDP. The 3rd-7th respondents equally claimed they are the candidates who won the re-run primaries conducted by the Electoral Panel set up by the National working Committee on 20th January, 2011. Learned counsel for the appellants submitted that the purported re-run primary of 20/1/2011 was invalid because it fell outside the timetable established by INEC and so could not constitute a parallel sufficient to oust the Court’s jurisdiction; consequently the case of Senator Lado v. C.P.C. is distinguished from the present case. Learned counsel for the 3rd-7th respondents on the other hand submitted that the trial court having found from the affidavits, counter-affidavits and exhibits before the Court that the principal question in this case is as to which of the two primary elections claimed by the respective parties herein produced the authentic candidates the 1st respondent in Enugu North Senatorial District. With respect to the elective offices being contested for by the parties was right to decline jurisdiction to entertain the case, he went on to say that the trial court was entitled in the circumstances to feel bound and guided by the decision of the Supreme Court in Lado’s case to declare that the suit is not justiciable. I am of the considered view that the trial court will be abdicating its responsibility if it declares that the suit is not justiciable. It has a duty to say which of the two primaries is the authentic one. This is the reason why Section 87(1) (4) (c) (i) (ii) and (9) has been put in place and to avoid arbitrariness by some officials of the Political Party who may want to impose their preferred candidates who probably did not take part in the primaries. This Court in PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 stated that the right to nominate or sponsor a candidate by a political party is a domestic right of the party and a member of the party has no legal right to be nominated/sponsored by his party, it was held however per Rhodes-Vivour, JSC at page 125 supra that-

“… where the political party conducts its primary and dissatisfied contestant at the primary complains about the conduct of the primaries, the Courts have jurisdiction by virtue of the provisions of Section 87 (9) of the Electoral Act to examine if the conduct of the primary elections was conducted in accordance with the party’s Constitution and Guidelines. This is so because in the conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own Constitution. See Hope Uzodinma v. Senator Osita Izunaso (2010) Vol. 5 (Pt. 1) MJSC 27; (2011) 17 NWLR (Pt. 1275) 30.”

What informed this Court’s pronouncement that a member of the party has no legal right to be nominated/sponsored by his party stemmed from the fact that Governor Sylva contested and won the primaries in January, 2011 for the general election in respect of the Governorship of Bayelsa State was cancelled. Another primary was held on 19/11/2011 to choose the party’s candidate for Governor of Bayelsa State which was fixed for 12/2/2012 but he was prevented from contesting that primary. He then instituted an action in court and prayed that the result of the primaries held in January, 2011 be reinstated to enable him contest the election scheduled for 12/2/2012 since his name had been cleared and forwarded to the Independent National Electoral Commission to contest the election. In this appeal the 3rd-7th respondents are claiming that the appellants were handpicked by the then chairman of the PDP to contest the elections and when they protested the said nomination which produced the appellants was nullified and a fresh primaries was conducted which the respondents won. Because of the conflicting claims by the parties it is only the Court that could resolve the issue. This is the dimension which the decision in C.P.C. v. Ombugadu (supra) introduced. See also: Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51. In Falobi v. Falobi (1976) 9-10 SC, this Court laid down the principle that where the affidavit evidence filed are in conflict, the Court seised of the matter must resolve the conflict by calling oral evidence.

Despite the finding that the Federal High Court ought to have exercised jurisdiction to determine the authentic primaries conducted by the 1st respondent for the elective offices of the Constituencies (State and National Assembly) for Enugu North Senatorial District for the 2011 general elections, the injunctive relief sought against the 2nd respondent cannot be made. See: Ohakim v. Agbaso (2010) 12 (Pt. 2) SCM 134. The 1st respondent can no longer submit the names of the appellants to the 2nd respondent as the Party’s candidates for the election. See: section 33 of the Electoral Act.

For the foregoing, the appeal is unmeritorious and it is accordingly dismissed. I make no order as to costs.

---

SC.130/2013