Chief Ikechi Emenike Vs Peoples Democratic Party & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.S.C
This is an appeal against the judgment of the Court of Appeal, Abuja Division (“the court below” for short) delivered on 2nd November, 2011 wherein it dismissed the appellant’s appeal against the judgment of the Federal High Court (the trial court) delivered by Kolawole, J. on 28th February, 2011.
The appellant as plaintiff at the trial court filed his Originating Summons on 28/01/2011 against the respondents as defendants thereat. He set out five (5) questions or issues for determination which I deliberately reproduce for ease of reference below. They read as follows:-
“(1) WHETHER having regard to Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) it is unlawful for the 1st defendant to refuse to submit to the 3rd defendant the name of the plaintiff who was screened cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held by the Abia State Congress of People’s Democratic Party on 10th January, 2011, to elect the Abia State Gubernatorial candidate of the party for the 2011 general election, which primary was conducted by the State Executive Committee of the Party recognised by the INEC and confirmed upon prior enquiry from its official records.
(2) WHETHER having regard to the combined effect of Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87 (1), (4) and (6) of the Electoral Act, 2010 which, among the other things guarantee, recognise and prescribe the mode of conducting party primaries only on democratic principles or basis, and which enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of the candidate who emerged winner at State Congress of the party, the 1st and 2nd defendants have power to disqualify or reject plaintiff candidature which was the choice of the delegates at the State Congress, and adopt instead by arbitrary fiat, the 4th defendant as the candidate of the 1st defendant for the office of Governor of Abia State in the 2011 General Election.
(3) WHETHER having regard to Section 87(6) of the Electoral Act, 2010 (as amended) the 1st defendant is not bound to submit to the 3rd defendant the name of 1st plaintiff as the 1st defendant’s Gubernatorial candidate for Abia State in the 2011 general election, being the only aspirant of the 1st defendant who Presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of 1st defendant held on 10th January, 2011.
(4) WHETHER in view of Section 33 and 87(6) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the Plaintiff’s candidature can be rejected, disregarded, revoked, reversed, annulled, re-assigned to, or be substituted with 4th defendant, or any other person when plaintiff being still alive, has not withdrawn his candidature to contest on the platform of the 1st defendant at the general election.
(5) If question 4 is answered in the NEGATIVE, WHETHER and having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiff, in the eye of the law, is the candidate of the 1st defendant, entitled to all the benefits of his candidature as flag bearer of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the office of Governor of Abia State at the 2011 general election, in the event that 1st, 2nd and 3rd defendants conspire, fail, refuse or neglect to take all necessary steps required under the Electoral Act, 2010 (as amended) to ensure that plaintiff’s name is duly submitted, published before the date of the election and placed on the ballot for use in the conduct of the Abia State Gubernatorial election in 2011.”
Based on the answers to the questions posed, the appellant as plaintiff at the trial court prayed for seven (7) fairly repetitive reliefs and three (3) injunctive remedies. It is also apt to set them out below for a proper appreciation of the real issues in contention in this appeal. They read as follows:-
“(1) A DECLARATION that by virtue Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) the 1st defendant is bound to submit to 3rd defendant the name of plaintiff who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the Primary election or congress of the Abia State chapter of the Peoples Democratic Party (PDP) held on 10th January, 2011, to elect the Abia State Gubernatorial candidate of the party in the 2011 general elections which primary was conducted by the State Executive Committee of the party recognised by the INEC and confirmed upon prior enquiry from its official records.
(2) A DECLARATION that by the combined effect of Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87(1), (4) and (6) of the Electoral Act, 2010 which, among other things guarantee, recognise and prescribe the mode of conducting party primaries only on democratic principles or basis, and enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of Candidate who emerged winner at State Congress of the party, the 1st and 2nd defendants have NO Power to disqualify or reject plaintiff being the choice of the delegates at the Abia State Congress.
(3) A DECLARATION that the 1st and 2nd defendants cannot by arbitrary fiat or through any illegal method adopt the 4th defendant or any other person other than the plaintiff as the candidate of the 1st defendant for the gubernatorial election in Abia State in the 2011 General Elections.
(4) A DECLARATION that by virtue of Section 87(6) of the Electoral Act, 2010 (as amended) the 1st defendant is duly bound to submit to the 3rd defendant the name of plaintiff as the 1st defendant’s Gubernatorial candidate for Abia State in the 2011 general election, being the only aspirant of the 1st defendant who presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of 1st defendant held on 10th January, 2011 organised by the Abia State Executive Committee of the 1st defendant.
(5) A DECLARATION that in view of Sections 33 and 87(6) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the plaintiff’s candidature CANNOT be rejected, disregarded, revoked, reversed, annulled, re-assigned to, or be substituted with 4th defendant or any other person, when plaintiff is still alive, and has not withdrawn his candidature to contest on the platform of the 1st defendant in the general election.
(6) A DECLARATION that by virtue of Section 221 of the constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff, in the eyes of the law, is the candidate of the 1st defendant entitled to all the benefits of his candidature as flag bearer of the 1st defendant, eligible to contest and be voted for on the Platform of the 1st defendant in respect of the Office of Governor of Abia State at the 2011 general election.
(7) A DECLARATION that any acts, omission, commission, failure, refusal or neglect, by 1st, 2nd and 3rd defendants to take all necessary steps required under the Electoral Act, 2010 (as amended) to ensure that plaintiffs name is duly submitted and published before the date of the election and placed on the ballot for use in the conduct of the Abia State Gubernatorial election in the 2011 general election is illegal and unconstitutional.
(8) AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, their servants, agents and or privies from recognising, or submitting to 3rd defendant the name of any person other than that of plaintiff and his nominated running mate in person of Dr. Chukwuemeka C. Okwuonu as candidate (sic) of 1st defendant for the office (sic) of Governor and Deputy Governor of Abia State respectively at the 2011 general election.
(9) AN ORDER OF PROHIBITORY INJUNCTION restraining the 3rd defendant, its agents, servants or privies from accepting and giving recognition to any other candidates, other than the Plaintiff and his nominated running mate in person of Dr. Chuwuemeka C. Okwuonu as Gubernatorial and Deputy Gubernatorial candidates of the 1st defendant at the 2011 general election into the office of the Governor of Abia State.
(10) AN ORDER OF MANDATORY INJUNCTION compelling the 3rd defendant to provide for and place on the ballot paper to be used for the Gubernatorial election in Abia State at the 2011 general election, the name of plaintiff and that of his nominated running (sic) Dr. Chukwuemeka C. Okwuonu as the Gubernatorial and Deputy Gubernatorial candidates of 1st defendant, in the event that 1st defendant fail or neglect to so submit the aforesaid names as its candidates for the offices.
(11) SUCH FURTHER OR OTHER ORDERS as this Honourable court may deem fit and just to make in the circumstances of this case.”
In its real essence, the appellant, as plaintiff at the trial court desired that he be declared as the governorship candidate of the 1st respondent for Abia State in the April, 2011 general election. The trial court after a proper consideration of the facts, guidelines and the applicable laws dismissed the claim and upheld the nomination of the 4th respondent as the governorship candidate of the 1st respondent for Abia State.
The appellant appealed to the court below which dismissed the appeal on 2nd November, 2011 and affirmed the judgment of the trial court. The appellant felt unhappy with the stance posed by the court below and has decided to further appeal to this court.
On behalf of the 1st and 2nd respondents, a Notice of preliminary objection was filed on 22nd February, 2011 pursuant to Order 2, Rule 9 of the Supreme Court Rules and under the inherent jurisdiction of this court. The stated respondents desire to raise and rely on preliminary objection on points of law to urge this court to strike out this appeal on the ground that same is incompetent and that the courts lack the jurisdiction to entertain the dispute raised in the Originating Summons. The Particulars of objection are as follows:-
“1. Dispute as to which of two parallel elections is valid is outside the provision of section 87(9) of the Electoral Act and therefore not justiceable.
- Being appeal on grounds of fact and mixed law and facts, appellant’s failure to seek and obtain the leave of this Honourable court or that of the lower court renders the appeal incompetent and liable to dismissal.”
On 28th February, 2012 when the appeal was heard, learned counsel for the 1st and 2nd respondents and senior counsel for the appellants made further oral submissions in respect of the preliminary objection. Senior counsel for the 4th respondent withdrew the Notice of Preliminary Objection filed by him on 23/02/2012 and same was struck out.
Arguing particular 1 of the preliminary objection, chief Oke observed that save and except as may be covered by the provision of section 87(9) of the Electoral Act, 2010 (as amended) matters relating to nomination of the candidate of a political party are regarded as domestic affairs and thus not justiceable. He cited the cases of Onuoha v. Okafor (1983) 2 SCNLR 244; Ehinlanwo v. Oke (2008) 16 NWLR (pt. 1113) 13. He felt that a careful consideration of the above stated section 87(9) of the Electoral Act, 2010 will reveal that it is not intended to provide an endless or unlimited access to court by aggrieved aspirant or party member. He submitted that the section only avails an aspirant who complains that a political party fails to comply with its guidelines or the Electoral Act in nominating or selecting its candid ate for a particular election. He submitted that for a complaint to come within the narrow compass of the above provision the aspirant must show that the particular political party (1) conducted a primary election in which he was an aspirant and (2) the primary election was conducted in breach of specified provisions of the Electoral Guidelines/Electoral Act.
Learned counsel submitted that since there were two primaries, a claim based on same cannot find support from section 87(9) of the Electoral Act, 2010. He cited the case of Lado & Ors. v. C.P.C. & Ors. (2011) 12 SC (Pt. 111) 113. He felt that the reliefs sought in the Originating Summons cannot be countenanced by the court.
On behalf of the appellant, senior counsel contended that the appellant is not raising issue of double primaries and that Lado’s case is distinguishable.
There is no atom of doubt in my mind that a dispute has arisen between the appellant and the 4th respondent as to who is the candidate of the 1st respondent for the April 2011 Gubernatorial Election. The court should not decline jurisdiction brevi manu. To do so may engender the employment of force of arms by the contending parties. A trial court (and nay an appellate court) has a duty to suo motu deal with issue regarding whether or not it has jurisdiction to entertain a matter before it. See: Alaeto v. Nwapi (2007) All FWLR (pt. 375) 591; Adesanya v. President FRN (2001) FWLR (Pt. 46) 869; (1981) 1 All NLR 1; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.In short, the court is imbued with due jurisdiction to pronounce on the dispute presented by the parties herein.
On behalf of the 1st and 2nd respondents, it was also contended that the appeal being on grounds of facts and mixed law and facts, appellant’s failure to seek and obtain the leave of this court or that of the court below renders the appeal incompetent and liable to dismissal. Learned counsel referred to section 233(3) of the Constitution of the Federal Republic of Nigeria 1999. He submitted that a calm examination of the eight (8) grounds of appeal will reveal that they are either of pure facts or of mixed law and facts for which leave should be sought and obtained. He cited the case of Opuleyo & 2 Ors. v. Omoniwari & Anr. (2007) 6 SC. 35.
Senior counsel for the appellant had a contrary view as he maintained that all the eight (8) grounds of appeal relate to law. He cited Ogbechie & Ors. v. Onochie & Ors. (1956) 3 SC 45 at 58; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 718).
Senior counsel observed that ground 1 complains that the court below failed to resolve issues properly raised which is a ground of law while ground 2 complains above reaching wrong conclusion on uncontested facts. Grounds 3 and 4 touch on erroneous conclusion of law in respect of Exhibit ‘7’ while ground 5 complains of failure to resolve a specific question raised. Ground 6, according to senior counsel, complain of the court below acting in excess or outside jurisdiction. Ground 7 complains of erroneous conclusion based on Exhibit 12 while ground 8 also alludes to erroneous conclusion touching on law.
Senior counsel submitted that a ground of appeal involves a question of law alone when the complaint of the appellant in that ground can be dealt with without resort to determination of any question of fact when facts are agreed or admitted or when determination of the ground is not dependent on any fact to be proved. He cited the case of Medical & Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 232G.
It is pertinent to reproduce the eight (8) Grounds of Appeal without their particulars here below for a clear view of same. They read as follows:-
GROUND ONE:
The Court of Appeal misdirected itself in law when in resolving the single issue upon which it decided the appeal, it affirmed the decision of the trial court upholding the nomination of the 4th respondent as candidate of the 1st respondent for the 2011 Governorship Election in Abia State, without resolving vital issues raised by the appellant.
GROUND TWO:
The Court of Appeal misdirected itself in law when it held in effect that the appeal of the appellant failed because the appellant did not participate in the screening and primary election conducted by the Gubernatorial Election Panel constituted by the National Executive Committee of the 1st respondent.
GROUND THREE:
The learned Justices of the Court of Appeal erred in law and thereby came to a wrong conclusion adverse to the appellant at pages 38-39 of the cyclostyled judgment when they held thus:-
“…since the appellant has tendered Exhibit 7 which the 1st and 2nd defendants exhibited as PDP6, he is bound by the document and he cannot dissociate himself from it …”
And in so holding placed reliance on Attorney-General Enugu State v. AVOP Plc (1995) 6 NWLR (Pt. 399).
GROUND FOUR:
The Court of Appeal misdirected itself in law when it held that since the appellant tendered Exhibit 7, he is bound by it and cannot argue that any provision therein is invalid.
GROUND FIVE:
The learned justices of the Court of Appeal misdirected themselves in law and thereby occasioned a miscarriage of justice when they failed and or omitted to determine the appellant’s issue No. 6 which was formulated from grounds 12 and 13 of the appeal before them wherein the appellant sought determination of the question whether –
“…the learned trial Judge did not occasion a miscarriage of justice in failing to pronounce on the plaintiff’s objection to the competence of the further counter affidavit and further counter affidavit and Exhibits GG8 and PDP12 attached thereto, filed by the 1st, 2nd and 4th defendants without leave of court which were relied upon to arrive at the decision.”
GROUND SIX:
The Court of Appeal erred in law and acted outside of the limited jurisdiction conferred on it in pre-election matters under section 87(9) of the Electoral Act, 2010 (as amended) when it cognised and made part of the basis of its decision, the alleged non-clearance of the appellant by the Screening Committee of the 1st respondent in resolving the question of whether the appellant or the 4th respondent was the winner of the Abia State gubernatorial primary election of the 1st respondent held on 10th January, 2011.
GROUND SEVEN:
The Court of Appeal misdirected itself in law when it held that Exhibit PDP 12, an enrolled order of judgment in a suit of which the appellant was not a party, was properly received by the trial court and treated as a validation of the purported Executive Committee of Abia State chapter of the 1st respondent elected on 6/12/2010 which produced the 4th respondent.
GROUND EIGHT:
The Court of Appeal misdirected itself when it held that the Abia State Executive Committee which produced the appellant was dissolved by the National Executive Committee of the 1st respondent on the 2nd August, 2010 and as such have no legal status when it purportedly returned the appellant.
This court in Nwadike v. Ibekwe (1987) 2 NSCC 1219 at 1235 pronounced that it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by branding it ‘error of law’ or ‘misdirection in law’.
Grounds of Appeal and particulars attending to them must be carefully read together to arrive at a decision. It is an error of law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion. O’ Kelly v. Trust House Forte Plc (1983) 3 All ER 468. And where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is one of law. Benmax v. Austin Motor Co. Ltd. (1945) All ER 326. Where a tribunal states the law in a point wrongly, it commits an error in law.
Lastly, where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based; same is regarded as a ground of law.
I tend to agree with the senior counsel for the appellant that the grounds of appeal drafted in a crafty manner relate to law as variously pinpointed in his submissions earlier depicted above. The preliminary objection is overruled. The appeal is competent and shall be decided on its merit anon.
On behalf of the appellant, six (6) issues were formulated for determination. They read as follows:-
(1) Whether the Court of Appeal was justified in affirming the decision of the court of first instance and holding that the 4th defendant and not the appellant was the duly elected gubernatorial candidate of the Peoples Democratic Party to contest the 2011 general election (Ground 1).
(2) Whether the Court of Appeal was justified in dismissing the appellant’s appeal on the ground that the appellant did not participate in the screening and primary election conducted by the gubernatorial electoral panel constituted by the National Executive Committee of the 1st respondent (Grounds 2 and 6).
(3) Whether the Court of Appeal was justified in its conclusion that because the appellant tendered Exhibit 7 (the Electoral Guidelines for primary elections 2010 of the Peoples Democratic Party), the appellant cannot argue that paragraph 16 (f) of the said guidelines is contrary to the PDP Constitution or the Electoral Act 2011 (sic) and the constitution of the Federal Republic of Nigeria, 1999 (Grounds 3 and 4).
(4) Whether the Court of Appeal was correct when it held that Exhibit PDP 12 was properly received in evidence by the trial court against the interest of the appellant and used to validate the executive of Abia state chapter of the 1st respondent purportedly elected on the 6th of December, 2010 for the purpose of electing the 4th defendant (Ground 7).
(5) Whether the Court of Appeal was correct when it held that the Abia State Executive committee which organised the primary to elect the appellant was dissolved by the National Executive committee of the 1st respondent on the 2nd day of August, 2010 and as such had no legal status when it purportedly elected the appellant (Ground 8)
(6) Whether the Court of Appeal was justified in the use it made of the 4th appellant’s further affidavit and Exhibit GG8 attached to it and 1st and 2nd defendants’ further – further counter affidavit and Exhibit PDP12 attached to it without deciding the issues raised by the appellant concerning them (Ground 5).
Learned counsel for the 1st and 2nd respondents felt that the above six issues formulated by the appellant amount to hair-splitting or proliferation. He submitted a lone central issue for determination. It reads as follows:-
“Whether the Court of Appeal was not justified in affirming the decision of the court of 1st instance and holding that the 4th respondent and not the appellant was the duly nominated gubernatorial candidate of the Peoples Democratic Party (1st respondent) for the 2011 governorship election in Abia State.”
On behalf of the 3rd respondent (INEC) one issue which does not appear to have direct bearing with any of the grounds of appeal was formulated for determination. It is basic that an issue should be based on a ground or grounds of appeal. The issue which can hardly be countenanced reads as follows:-
“In the determination of the candidate for a political party, whether the 3rd respondent ought to deal with the National Executive Committee of the Party or the State Executive Committee.”
On behalf of the 4th respondent, the sole issue distilled from the eight grounds of appeal for determination reads as follows:-
“Whether the Court of Appeal was not right when it dismissed the appellant’s appeal and affirmed the decision of the trial court that the nomination of the 4th respondent as the candidate of the 1st respondent for the 2011 Abia State Governorship election was proper.”
I need to state it clearly at this point that since the appellant claimed seven (7) declaratory reliefs, the law places a legal burden on him to establish his claim. His three (3) injunctive reliefs are predicted on the success of the declaratory reliefs. To that extent, they are consequential reliefs. In Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 119) 361 at 373-374 this court pronounced with force that the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.The core or central issue in this appeal relates to the due resolution of the serious hegemony between the appellant and the 4th respondent as to who is the right candidate of the 1st respondent for the governorship election of April, 2011 in Abia State of Nigeria.
Let me state it right away that matters relating to nomination of the candidate of a political party are regarded as domestic affairs and are generally treated as not justiceable. This has been so for quite some time now. See: Onuoha v. Okafor (1983) 2 SC NLR 244; Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 13.The courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred under section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the party constitution and the party guidelines.
For a clear view and resolution of the central issue, I shall start with the applicable law on the point. I wish to reproduce section 87(4)(b) and (9) of the Electoral Act 2010 (as amended).
“Section 87(4) (b) – In the case of nominations to the Position of governorship candidate, a political party shall, where they (sic) intend to sponsor a candidate:-
(i) Hold a special congress in the State Capital with delegate voting for each aspirant at the congress to be held on a specify (sic) date appointed by the National Executive Committee (NEC) of the party.
(ii) The aspirant with the highest number of 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 Independent National Electoral Commission as the candidate of the party for the particular state.
(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 a Political parry 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 or FCT for redress.”From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognisable by a court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specified provisions of the Electoral Act/Election Guidelines.
Put in another way, the law provides that a candidate with the highest votes cast at a primary election organised by the National Executive Committee of the 1st respondent to the knowledge of the 3rd respondent can approach the court for redress if he is excluded by the party.
The appellant herein, as extant in the record of appeal and admitted by him, did not take part in the primary election authorised and organised by the National Working Committee of the 1st respondent. The appellant who relied on an unauthorised Primary conducted by the State Executive Committee after unlawfully and unilaterally modifying the party guidelines – Exhibit 7 missed the road. Since he did not take part in the valid primary election, to my mind, he had no competent cause of action to activate the jurisdiction of the trial court. The appellant had no vires to initiate the action. The case was not initiated with due process of the law and upon fulfillment of a condition precedent to the exercise of jurisdiction. See: Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; (1962) 2 SCNLR 341. A’fortiori, the court lacks jurisdiction.
I now move to the employment of the 1st respondent’s guidelines which the appellant tendered as Exhibit 7 ostensibly to prop his case. All the parties referred to and relied on it. At the beginning of this exercise, I quoted above the questions sought for determination by the appellant and his declaratory and injunctive reliefs. From the first question for determination by the appellant and his first declaratory relief, the Originating Summons rests on the claim that the appellant was ‘screened, cleared and duly elected’ at a primary election conducted by the State Executive Committee of the 1st respondent for the Abia State governorship election 2011. The Abia State Executive Committee maintained that it ‘modified’ the Electoral Guidelines of the 1st respondent under the ‘powers expressly vested’ on it and ‘faithfully complied’ with it in nominating the appellant. The State Executive Committee did not state where it derived the power to modify Exhibit 7 and what was exactly modified. No provision of Exhibit 7 gives the state chapter of the 1st respondent the competence to set up a Gubernatorial Screening Committee.
The appellant is bound by the 1st respondent’s Constitution and Guidelines. He cannot circumvent any of them to his own benefit. The appellant must stand or fall by article 16 (f) of Exhibit 7 tendered by him which provides that ‘only aspirant cleared by the Gubernatorial Screening Committee or whose appeal the Gubernatorial Screening Appeal Panel has upheld shall be qualified to participate in the primary election.’ The appellant was not cleared and as such, he did not participate in the valid Primary authorised and organised by the National Executive Committee of the 1st respondent.
The appellant maintained that the guidelines of the 1st respondent in Exhibit 7 was complied with in his own selection as set out in his Originating Summons but was breached in the selection of 4th respondent. He turned round in his reply on points of law to claim that Exhibit 7 is unconstitutional. I need to state it clearly that the stance replicates inconsistency. This court has stated it in clear terms that a party should be consistent in stating his case and consistent in proving it. Justice is more than a game of hide and seeks. It will never decree anything in favour of so slippery a customer as the appellant. See: Ajide v. Kelani (1955) 3 MLR (Pt. 12) 248 at 269 C-D.
It is extant in the record of appeal that the 4th respondent was duly screened by the Gubernatorial Screening Panel set up by the 1st respondent’s National Executive committee. He was cleared to contest the valid primary election organised by the 1st respondent. He won and his name was sent to the 3rd respondent as the 1st respondent’s candidate for the Governorship Election of April, 2011.
The appellant realized the futility of his action. He appreciated that he had no chance in respect of his claims touching on declaratory reliefs. He jettisoned the real issue and attempted to hang on a straw; as it were. He tried to cling tenaciously to the point relating to the membership of the 4th respondent. The claim of the appellant as set out in the originating Summons and reproduced above did not raise any question about the membership of the 4th respondent. No question for determination touched on it. There was no declaratory relief in that respect. Again, it should be stated that there should be consistency in prosecuting a case by a party. See: Kalu v. Uzor (2006) 8 NWLR (Pt. 981) 66 at 87.
The point relating to membership of the 4th respondent was raked up and unduly elevated on appeal. Even if it were to be found that the 4th respondent’s membership was faulty, it will still not validate the appellant’s nomination by an unauthorised State Executive Committee which ‘modified’ Exhibit 7 the 1st respondent’s Electoral Guidelines without due vires.
The court below did a nice job by affirming the stance taken by the trial court. The concurrent findings of the two courts below are not in any respect perverse. The findings have support in law and evidence. I shall not interfere with same. See: Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 272; Ogbu v. Wokoma (2005) 14 NWLR (pt. 944) 118 at 140; Kale v. Coker (1982) 12 SC 252, Seven-Up Bottling Co. v. Adewale (2004) 4 NWLR (Pt. 8962) 183. I resolve the core or central issue against the appellant. At this point, I am done.
The appeal has no chance of success; as it rests on a sinking sand right from its inception. The appeal is hereby dismissed with N50,000.00 costs to each respondent.
SC.443/2011
