Chief Reagan Ufoma Vs. Independent National Electoral Commission (Inec) (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The Appellant commenced this action by an originating summons at the Federal High Court, Umuahia, Abia State on the 27th January, 2015. He sought for the determination of the following questions:-

(i) Whether the 2015 Governorship Primaries Election in Abia State conducted on the 8th of December, 2014 at Colping Centre, Umuahia under the supervision of Chief Chris Uche, the Deputy National Chairman, South of the 2nd Defendant is valid, the Notional Chairman of the 2nd Defendant having been restrained by an order of Court.

(ii) Whether the 1st Defendant is bound to recognize and publish the name of the Plaintiff who scored the highest number of votes at the 2015 Governorship Primaries Election conducted on the 8th of December, 2014 under the supervision of Chief Christ Uche, the Deputy National Chairman, South of the 2nd Defendant, the National Chairman of the 2nd Defendant having been restrained by an order of Court.

(iii) Whether the 1st Defendant has any power to recognize. and publish the name of the 3rd Defendant as the 2nd Defendant’s 2015 Governorship

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candidate in Abia State when he neither won the Primaries election conducted on the 8th of December, 2014 or even qualified to run for any elective office under the platform of the 2nd Defendant since he is yet to regularize his membership of the 2nd Defendant.

(iv) Whether the 1st Defendant was right to have continued to deal with the 4th Defendant notwithstanding that this 2nd term in office as Chairman of the 2nd Defendant has expired by exclusion of time.

(v) Whether the 3rd Defendant having made false declaration on oath to the 1st Defendant is not disqualified from running for the office of Governor of Abia State.

Upon the consideration of the questions above, the Appellant sought from the Trial Court the following reliefs:-

(i) “A declaration that the 2015 Governorship Primaries Election in Abia State conducted on the 8th of December, 2014 at Colping Centre, Umuahia in compliance with the 2nd Defendant’s Constitution and Section 87(1), (4)(b) of the Electoral Act (As amended) under the supervision of Chief Chris Uche, the Deputy National Chairman, South of the 2nd Defendant, the National Chairman of the 2nd Defendant

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having been restrained by an order of Court, is valid.

(ii) A declaration that the Plaintiff is the validly elected 2015 Governorship Candidate of the 2nd Defendant in Abia State through Primaries conducted on the 8th of December, 2014 at the Colping Centre. Umuahia in compliance with the 2nd Defendant’s Constitution and the Electoral Act (As amended) under the supervision of Chief Christ Uche, the Deputy National Chairman, South of the 2nd defendant, the National Chairman of the 2nd Defendant having been restrained by an order of Court.

(iii) A declaration that the 2nd term of four (4) years in office of the 4th Defendant as the National Chairman of the 2nd Defendant expired on the 1st of December, 2014 and ceases to be the Chairman of the 2nd Defendant from that day.

(iv) A mandatory order directing the 1st Defendant to forthwith recognize and publish the name of the Plaintiff as the 2nd Defendant’s valid candidate for the 2015 Governorship Election in Abia State and rectify its record accordingly having scored the highest number of lawful votes at the Primaries election in accordance with the 2nd Defendant’s Constitution and the Electoral

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Act (As amended).

(v) Perpetual injunction restraining the 3rd Defendant from parading himself as candidate for the 2015 Governorship Election in Abia State having not regularized his membership of the 2nd Defendant and thus not eligible under the 2nd Defendant’s guidelines and Constitution to run for any elective position to public office in the forthcoming 2015 general election.

(vi) A declaration that the 3rd Defendant having made false declaration on oath of his place or origin and party to the 1st Defendant, is disqualified by the provision of Section 311 (5) and (6) of the Electoral Act,2010 as amended from running for the office of Governor of Abia State under the platform of the 2nd Defendant.

(vii) AND for such other Order or Orders as the Honorable Court may deem fit to make in the circumstance.”

By a notice of preliminary objection of 23/2/2015 contained at pages 161 – 163 of the Record, the 2nd and 4th Respondents disputed the jurisdiction of the trial Court in that-

(i) Reliefs (1) and (2) sought by the Plaintiff on the Originating Summons are by reason of law incompetent and the Court cannot in any event grant then.

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(ii) Reliefs (3), (4) and (5) in the Originating Summons are Non-Justiciable in that they encroach on the domestic jurisdiction of the Defendant and relate to political questions well outside the jurisdiction of this Honorable Court.

(iii) The action as constituted is premature in that the Plaintiff in his Originating Summons and supporting affidavit has failed to demonstrate that prior to this suit, he had sought or exhausted the 2nd Defendant’s internal dispute resolution mechanism.

(iv) The action was improperly commenced by originating summons as substantial part of the facts relied upon for the reliefs are contentions, hostile in nature or out rightly relate to a criminal offence which can only be determined beyond reasonable doubt through pleadings as decided by the Court of Appeal in African International Bank Limited & Ors. V. Femi Asaolu (2005) LPELR 11340 (CA).

(v) The Plaintiff neglected, failed or refused to pray far the invalidation of the letter INEC/LEG/PP/iii/12 dated 31st December, 2014, therefore the action is misconceived.

There were five grounds predicating the Notice of preliminary objection.

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Relatedly, on the 20th February, 2015 the 3rd Defendant/Respondent also filed a notice of preliminary objection on the competence of Claimants/ Appellant’s suit on the following grounds:-

“(i) Lack of jurisdiction of this Honorable Court, the suit and its principal reliefs not falling within the provisions of Section 251 of the 1999 Constitution.

(vi) Lack of justiciable cause of action in that the main issues herein are questions on who is the candidate of the 2nd Defendant and who is the National Chairman of the 2nd Defendant.

(vii) Lack of locus standi.

(viii) Non-compliance with the provisions of Order 3 Rules 1, 2, 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009.”

The Appellants originating Summons was heard on 7th May, 2015 and the trial Court delivered its judgment on the 27th May, 2015 and struck out the suit, having upheld the Notices of preliminary objection of the 2nd and 4th respondents as well as that of the 3rd respondent.

The summary of the reasoning of the trial Courts in striking out the appellants suit could be found at Pages 526 to 528 of the Record. The trial Court in totality

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said-

“There is sufficient cause to uphold the Notices of preliminary objection filed by the 2nd and 4th Defendants (dated 23/2/15) and filed by the 3rd Defendant (dated 20/2/15). Those objections therefore succeed. Suit FHC/UM/SC/01/2015 is accordingly struck out.

Dissatisfied with the Ruling/Judgment of the trial Court, the appellant filed and relied on notice of Appeal filed 13/7/2015 in the Court below

The Appellants Appeal was heard on 16th June, 2016, and on 12th July, 2016, judgment was delivered by the Court of Appeal which dismissed the appeal and affirmed the decision of the trial Court.

In reaction to the judgment, the appellant has now approached this Court and has filed a notice of appeal containing seven grounds.

In accordance with the rules of Court, briefs were filed and exchanged by the Parties. The relevant briefs of argument for this appeal are as follows:-

1. The appellants brief of argument dated and filed 26/9/2016- was settled by Clement Onwuenwunor Esq.
2. The 1st respondents brief of argument dated and filed 21/12/16 and deemed filed 18/1/17 was settled by Musibau

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Adetunbi, Esq.

3. 2nd and 4th respondents brief of argument dated 19/10/16 and filed 21/10/16 – was settled by Ikoro N. A. Ikoro, Esq.
4. 3rd respondent’s brief of argument dated 30/9/16 and filed 11/10/16 – was settled by Kenneth Ahio, Esq.
5. Appellants reply to the 1st respondents brief of argument dated 13/l/17 and filed 16/1/17 was settled by Clement Onwuenwunor, Esq.
6. Appellant’s reply to the 2nd and 4th Respondents brief of argument dated 7/11/16 and filed 15/11/16 – was settled by same counsel, Clement Onwuenwunor, Esq.
7. Appellants reply to the 3rd respondent’s brief of argument dated 7/11/16 and filed on 15/11/16 was settled again by clement Onwuenwunor, Esq.

On the 18/1/17, the appeal was heard and all counsel adopted and relied on their respective briefs of arguments.

On the one hand, while the learned counsel for the appellant in summary urged that the appeal be allowed, all the counsel representing the respondents respectively, prayed and sought for the contrary in favour of the dismissal of the appeal.

On behalf of the appellant and for the

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determination of this appeal, three issues were formulated as follows-

1. Whether the holding of the Court of Appeal in its conclusion that the appellants relief against the 1st respondent was ancillary and that the trial Court has no jurisdiction on same, did not contradict its earlier findings that the trial Court has jurisdiction in a pre-election matter whether or not the claim against the 1st respondent is ancillary (Ground 1 of the Notice of Appeal).
2. Whether the Court of Appeal was right in affirming the decision of the Trial Court that it has no jurisdiction to entertain the appellants main claims which it said are non-justiciable when the appellants main claims bother on Primaries election which he won but the 2nd respondent’s name was forwarded and published (Grounds 2, 3, 4, 5 and 7 of the Notice of Appeal).
3. Whether the Court of Appeal was right in holding that the trial Court has no jurisdiction to entertain the Appellants relief against the 3rd respondent for making false declaration to the 1st respondent which it held was non-justiciable (Ground 6 of the Notice of Appeal).

On behalf of the

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1st respondent, only one issue was distilled for the determination of this appeal as follows-

In the entire circumstances, did the Court of Appeal come to the right conclusion when it affirmed the decision of the trial Court that the claims of the appellant (the claimant) are not justiciable.

The learned counsel representing the 2nd and 4th respondents adopted wholly the three issues formulated by the appellant and I need not repeat them of this point.

The two issues formulated on behalf of the 3rd respondent will be reproduced last and are as follows:-

1. Whether the learned justices of the Court of Appeal were right when they upheld the decision of the trial judge that the appellants main claims were not within the purview of the provisions of Section 87(9) of the Electoral Act – Grounds 1 to 5 of the Notice of Appeal.
2. Whether the learned justices of the Court of Appeal were right when they held that the principal reliefs of the appellant against the 1st respondent are ancillary whilst those on party leadership are the principal claims and that the learned trial Court lacks the jurisdiction to adjudicate over the suit.

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Grounds 6 and 7 of the Notice of Appeal.

The 1st respondents lone issue is a common ground by all the parties which questions whether the lower Court came to the right conclusion when it affirmed the decision of the trial Court that the claims of the appellant (the claimant) are not justiciable.

The said issue touches squarely on the jurisdiction of the Court wherein the law is well settled that it is the claim of the claimant that determines whether a Court of law has jurisdiction or not. See the following teeming authorities in reference:- Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 SC at 549; Union Bank V. I.T.P. Ltd (2000) 12 NWLR (Pt. 680) 99 at 109; Okulate V. Awosanya (2000) 2 NWLR (Pt. 646) 530 or 555-556; Osoh V. Unity Bank (2013) 9 NWLR (Pt. 1358) 1 at 28; Agbule V. W.R. & P. Co. Ltd (2013) 6 NWLR (Pt. 1350) 318 at 350: Onuorah V. Okeke (2005) 10 NWLR (Pt.932) 47 at 57: Akeem V. University of Ibadan (2003) 10 NWLR (Pt. 829) 584 at 596; A.G. Kwara State V. Warah (1995) 7 NWLR (Pt. 405) 120 of 127 and UBA Plc V. BTL Ind. Ltd (2006) 19 NWLR (Pt. 10013) 61.

I see it very crucial and as a life saving

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situation to this appeal that its justiciability should first be determined.

In its submission to substantiate his argument, the learned counsel for the appellant was quick to point out the error committed by the lower Court when it said thus at page 712 of the Record of appeal:-

“I do agree that the learned trial judge lacks jurisdiction to entertain the main claims of the appellants which are not justiciable.”

It is submitted by counsel that the above conclusion by the lower Court does not reckon with the facts, circumstances of the case and the current case law applicable in electoral matters. The decision of the Court of Appeal, counsel submits, in affirming the trial Courts ruling that it has no jurisdiction to entertain the appellants suit, was a fundamental error.

In his submission to restate his point further, the appellants counsel was emphatic that the jurisdiction of the Court to entertain the appellants case, contrary to the holding of the Court of Appeal, is donated by Section 87(9) of the Electoral Act 2010 (as amended), which provides that an aspirant, who claims that any of the provisions of the

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Electoral 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 an effort to relate the state of affairs before the Court, the appellants counsel disagreed with the lower Court and did not hesitate further to point out that it was the refusal of the 1st respondent to recognize and publish the appellant’s name as the 2nd respondent’s Governorship candidate in Abia State which precipitated the cause of action before the trial Court. In other words, it is not the leadership tussle in All Progressive Grand Alliance (APGA), the 2nd respondent, as wrongly held by the lower Court.

It is submitted by the learned counsel further that the functions performed by the Deputy Notional Chairman of the 2nd Respondent in the Primaries election on the 8th of December, 2014, at Colping Centre, Umuahia, Abia State was justified by the Constitution of the 2nd respondent and the restraining orders of Court against the 4th respondent.

In his further submission, the appellants

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counsel restated that the judgment of the Court of Appeal which affirmed the decision of the trial Court, which declined jurisdiction, is a direct affront on the decision of this Court as it was held in Ugwu V. PDP (2015) 7 NWLR (Pt. 1459) 478. It is submitted by the counsel also that the attempt made by the trial judge and which was affirmed by the court of Appeal in distinguishing the above case, from the facts of the case under review, is clearly unjustifiable.

In his continued submission, the learned counsel pointed out that, contrary to the holding by the Court below, that the case of PDP V. Sylva (2012) 13 NWLR (Pt. 1136) 85 has no application to the circumstances of the appellants case. This, the learned counsel argues because while Sylva did not participate in the primaries election, the appellant, herein, participated in the primaries election and won.

In continuation, the learned counsel related copiously to the case of Ugwu V. PDP supra which was cited before the lower Court and reiterates that the claims of the appellant are justiciable and not otherwise. In reference, the counsel related to this Court where it held that Section

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87(1) (4) (c) (i) (ii) and (9) was put in place to avoid arbitrariness of some officials of the Political party who may want to impose their preferred candidates who probably did not take part in the primaries.

The learned counsel submitted finally that the lower Court had jurisdiction to determine the appellants case and having failed to do so, that this Court should invoke its special jurisdiction under Section 22 of the Act to re-hear or determine the whole case, since all evidence and materials needed in the case are before this Court, and grant the appellants reliefs.

In response to the issue of justiciability or not of the appellants claim, the learned counsel for the 1st respondent submits at great extent on the settled principle of law, that, it is the claim of the claimant that determines whether a Court of law has jurisdiction or not. The counsel cites the case of Lado V. CPC (2011) 18 NWLR (pt. 1279) 692 at 724 amongst many other authorities in support of his contention.

The learned counsel submitted copiously that, it is the claims of the claimant as well as the affidavit substantiating same that gave the reason for

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the Courts pronouncements that most of the claims are not justiciable.

In further argument, the counsel did not hesitate to State that it was the failure of the Courts below to identify the fundamental issue nominated for determination that led them (the Courts) to come to the conclusion that the principal claim of the claimant is not justiciable. Counsel cites in support, the case of Longe V. F.B.N. (2010) 6 NWLR (pt. 1189) 1 at 36.

On the nature of the order sought to be made in this appeal, the learned counsel on behalf of the 1st respondent advocated that the suit should be dismissed, because the prayers of the appellant are no longer grantable for the following reasons:-

Firstly, that with the resolution of the case of Okwu V. Umeh (2016) 1 SC 60 in favour of 4th respondent, same has paralyzed the central issue nominated for determination. The issue is to the effect that the 4th respondent lacks authority to conduct the primary which produced the 3rd respondent.

Secondly, counsel pointed out the fact that a different party, (PDP), and not the 2nd respondent is the ruling party in Abia State. This, he argued has also rendered the

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principal claim of the claimant useless.

The learned counsel urged in favour of dismissing the appeal.

On behalf of 2nd and 4th respondents, their learned counsel applauded the concurrent decline of jurisdiction of both the trial and lower Courts.

It is further submitted emphatically by the learned counsel that the reliefs sought by the appellant at the trial Court were not crafted under the limited window or exception to non-justiciability of political cases.

Counsel submits further that the issue of leadership and membership are internal affairs of a political party. The Court, counsel restates, cannot inquire into, who is a member or leader of a political party. See PDP V. Sylva under reference supra.

The learned counsel for the 2nd and 4th respondents in further answering the issue in the affirmative, pointed out clearly that relief 3 as contained on the face of the originating summons, which seeks a declaration on the term of office of the 4th respondent, is a judicial anathema that completely obliterates any form of jurisdiction by any Court of law in Nigeria.

The learned counsel submits further that both the trial and

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lower Courts could not have been expected to speculate on whether there was a procedure to complain about, after screening or after an individuals name has not been forwarded to INEC by the 2nd respondent. See Agip (Nig) Ltd. V. Agip Petroli Int’l (2010) 5 NWLR (pt. 1187) 348 at 413.

The learned counsel submits finally that the appellant did not show that his candidature was ratified by the National Executive Committee of the 2nd Defendant; that as a result of the foregoing lapses coupled with the failure of the appellant to provide the 2nd respondent’s guidelines, wherein the procedure for complaint can be deduced, it is indisputable that the case was premature and therefore incompetent. Counsel cites the case of Akintemi V. Onwunechili (1985) 1 NWLR (Pt.1) 68 at 85.

The counsel, in summary, blamed the appellant who has failed to exhaust the internal dispute resolution mechanisms of the 2nd respondent, and hence that the issue should be decided in favour of the respondents against the appellant.

In response on behalf of the 3rd respondent, his counsel submits that, to succeed on this appeal, the appellant is expected to demonstrate

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before this Court, by way of averments, pleadings and documents to show that the refusal to assume jurisdiction by the two lower Courts was an error. It is submitted by learned counsel also that the appellant ought to show that the learned justices of the lower Court, were wrong when they upheld the decision of the learned trial judge, that the appellants principal claim was not under Section 87(9) of the Electoral Act.

The counsel submits further that, on its determination of the question of jurisdiction, the trial Court was right in looking at the State of pleadings and averment contained therein, when it held that, they do not come under the purview of Section 87(9) of the Electoral Act.

The appellants grievance, the learned counsel argues, emanated from the purported restraint of the National Chairman and the actions of the Deputy National Chairman.

In further submission, the learned counsel re-affirmed that, from the copious reference made to the Record of Appeal, the trial Court was right in holding that the suit does not fall within the purview of Section 87(9) of the Electoral Act and therefore not justiciable before the

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Federal High Court. See this Court in C.P.C V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66 at 160.

The learned counsel made copious reference to the appellants reliefs 1 and 2 of the Originating Summons and submitted that they are predicated on “the National Chairman of the 2nd Defendant having been restrained by an order of Court.” It is submitted by counsel also that the reliefs are not restricted to the validity of the primaries under the provisions of the Electoral Act.

The reliefs, counsel argues, have been taken outside the purview of Section 87(9) of the Electoral Act 2010 and thus rendering the suit becoming incompetent under the said Section 87(9) of the Electoral Act. To buttress his submission further, the learned counsel cited the case of Anyanwu V. Ogunewe (2014) 1 NWLR (Pt. 1410) P.437 At 472. The learned counsel submits and restates strongly that, where a Court does not have jurisdiction over the principal claims, it cannot adjudicate over the suit. The case of Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt 117) P 517 was cited in support.

On the totality, the learned counsel urges the Court to hold that the learned

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justices of the Court of Appeal were right when they held that the learned trial judge was right when she held that the appellants main claims were not within the purview of the provisions of Section 87(9) of the Electoral Act.

In reply to the 1st respondents brief of argument, the learned counsel for the appellant applauded the submission made by the 1st respondent’s counsel wherein he affirmed the case of the appellant as justiciable. The counsel, however, disagrees with the concluding submission by the counsel for the 1st respondent, that the appellants reliefs are no longer grantable. Counsel cites the case of Gwede V. INEC (2014) 18 NWLR (Pt. 1438) 56 at 101 and Ugwu V. PDP supra.

In reply, also to the 2nd and 4th respondents issue 2, the appellant submits that the case of Emenike V. PDP supra and cited by the 2nd and 4th respondents supports the appellants case and confirms that the trial Court had jurisdiction to determine this suit; that the 2nd and 4th respondents argued erroneously that what grants jurisdiction is non-compliance with the Electoral guidelines of the party and not its Constitution. The learned

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counsel re-states pointedly that the appellants suit was competent and the trial Court had jurisdiction that the undue reliance placed by 2nd and 4th respondents on PDP V. Sylva (supra) is unhelpful to their case.

The appellants reply to the 3rd respondent’s brief of argument is also in tandem to those of the earlier respondents. The appellants counsel submitted emphatically that the 3rd respondents contention is a complete misunderstanding of the appellants case.

Counsel re-states further that the decision of the lower Court in this appeal, which held that the appellants claim against the 1st respondent, being ancillary and not substantive, cannot clothe the Court with Jurisdiction, is wrong.

The learned counsel for the appellant urged that the appeal be allowed on this issue therefore.

RESOLUTION OF THE ISSUE

Questions 1 and 2 as contained on the face of the Originating Summons (at page 47 Vol.1 of the record of Appeal), have called on the Trial Court to declare that the Primaries held on the 8th of December, 2014 having been conducted by the Deputy National Chairman of the 2nd Defendant was valid.

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The said questions have been reproduced earlier in the judgment.

The substance of the originating summons before the learned trial judge was the validity of the Primary election which produced the appellant as the winner thereof, but whose name was rejected by the 1st respondent in preference to the 3rd respondent.

The gist of the appellants action therefore, is the alleged failure of the 1st respondent, INEC, to accredit the appellant as the Governorship candidate of the 2nd respondent. In his Originating Summons, the appellant alleges that, rather than complying with the letter signed by Dr. Chris Uche, the 1st respondent accredited the 3rd respondent as Governorship flag bearer of the 2nd respondent; that neither this Court nor a political party is competent to change a candidate, whose name has been submitted to the Independent National Electoral Commission, as in the instant case.

At pages 524 and 525 of the record of appeal, the learned trial judge held the following and said:-

“This Honorable Court would indeed have to determine whether or not 3rd Defendant is a bonafide member of APGA in its bid to reach a

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just determination of the questions posed in the Originating Summons.

In PDP Vs. Sylva (2012) 13 NWLR (Pt.1316) p.85 at 146 Paragraph D, the Supreme Court held that a Court does not have jurisdiction to determine disputes arising from the internal affairs of a party. Disputes as to membership of APGA are internal affairs of that party which is no business of this Honorable Court. It is the prerogative of a political party to determine who its members are. See APGA Vs. Anyanwu (2014) 7 NWLR (Pt. 1401) p.541. The issues of 3rd Defendant’s membership of APGA, cum the leadership of APGA, and whom between the Plaintiff and 3rd Defendant is the APGA Governorship Candidate for Abia State are thus inextricably tied together but in the circumstances of this case they are all intra party affairs (i.e. disputes between members of a party inter se and disputes between a member and his party. See P.D.P Vs. K.S.I.E. C. (2006) 3 NWLR (Pt. 968) pp.565 at 577) which are not justiciable before this Honorable Court. I so hold. This issue is resolved in favour of the Defendants.” (Emphasis supplied)

The Honorable Court below at page 710 lines 13 – 24 and 711 lines 1-5 also held thus-

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“Furthermore, in this respect the claim of an applicant under Section 87(9) of the Electoral Act for a pre-election matter does not need to fall squarely within Section 251 of the 1999 Constitution (as amended) before the Federal High Court can exercise jurisdiction. See Lokpobiri V. Ogolo (2016) 3 NWLR (Pt. 1499) 328.

In the instant case, the real issue is whether it could be said that the claims/reliefs of the Appellant fall squarely within the purview of the provision of Section 87(9) of the Electoral Act 2010 (as amended). With due respect to the Learned Counsel for the Appellant my answer to the above question is in the negative. As rightly point out by the Respondents, the first and second reliefs sought by the Appellant were predicated on the leadership of the 2nd Respondent and or orders of a Court. Similarly, the affidavits of the parties reveal that membership of the 3rd Respondent was in issue, leadership of the 2nd Respondent was in issue and also that the leadership of the 2nd Respondent was at time pending before Supreme Court.

It seems to me therefore that in the instant case as it was in the case of PDP V. Sylva

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(2012) 13 NWLR (Pt. 1136) 85 it could be said that the Appellant through his claims and reliefs, some of which concern non-justiciable intra party disputes could not be said to have squarely and properly brought himself within the provision of Section 87(9) of the Electoral Act, 2010 (as amended).” Emphasis supplied).

From the community reading of the concurrent judgments by the two lower Courts as reproduced, (supra), it is obvious that most of the claims by the appellant are not justiciable.

The word justiciable is destined at page 944 of the Black’s Law Dictionary Ninth Edition thus-

“A case or dispute properly brought before a Court of justice: capable of being disposed of judicially.”

It is the contention of the appellant that by virtue of the pronouncement of this Court in Ugwu V. PDP supra, his claims are justiciable. The respondents however hold the contrary view by submitting that the claims of the appellant are within the authority of Lado V. CPC (supra) and similar authorities.

The question that comes to mind at this juncture is very simple and I ask-

What is the fundamental issue nominated for trial by the

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appellant

A careful reading of the appellants Originating Summons and particularly the supporting paragraphs of the affidavit will show that the fundamental issue which is seeking determination relates to the personality or authority, who should have conducted the primary in question.

I am quick to say that neither Lado V. CPC (supra) nor Ugwu V. PDP (supra) dealt with the issue of who in between two personalities of the political parties involved, had authority to conduct the primary in issue. In CPC V. Lado (supra) a single authority was alleged to have conducted two parallel primaries while Ugwu V. PDP (supra) was a case of a primary and a re-run primary.

The real issue in the case at hand lies in the question who in between the two personalities had authority to conduct primary of the 2nd respondent.

Central to the determination of this issue is Section 87(9) of the Electoral Act 2010 (as amended). It provides as follows:-

“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

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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.

From the foregoing provision, it is now a settled principle of law clearly that, where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct, (of the primaries), the Courts have jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended), to entertain the complaints, if the conduct of the primary was in accordance with the partys Constitution and Guidelines. The reason for this is obvious wherein political parties are not allowed to act arbitrarily but must be seen to obey their Constitution. See Tarzoor v. Joraer (2016) 3 NWLR (Pt 1500) 463 at 52.

In the instant case, I have posed the same question times again whether it could be said that the claims/reliefs of the appellant fall squarely within the purview of the provision of Section 87(9) of the Electoral Act, 2010 (as amended)

As rightly pointed out by the respondents, the 1st and 2nd reliefs sought by the appellant were

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predicated on the leadership of the respondent and or orders of a Court. Similarly, the affidavits of the parties reveal that membership of the 3rd Respondent was in issue, leadership of the 2nd respondent was at that time pending before this Court.

For all intents and purposes, it cannot be said conclusively that the appellant came before the Court to examine, if the primary election was conducted in accordance with the Party’s Constitution and Guidelines, as laid down in the case of Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) 55. The foregoing conclusion is anchored on the fact that the appellant, through his claims and reliefs, some of which concern non-justiciable intra-party disputes, could not be said to have been brought squarely within the provision of Section 87(9) of the Electoral Act,2010 (as amended).

The appellant in the instant case has asked the Court to determine the validity of a primary election conducted under the supervision of a Deputy National Chairman, with the National Chairman having been restrained by an order of Court. He asked the Court, whether the 1st respondent was right to have continued to deal with the 4th

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respondent, notwithstanding that the 2nd term of office as Chairman of the 2nd respondent, had expired by exclusion of time.

By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership disputes in the 2nd respondent. This, clearly and as rightly submitted by the learned counsel for the 2nd and 4th respondents, is not an exception to Onuoha V. Okafor (1983) 2 SCNLR 244. Also in the locus classicus case of Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi JSC, in his lead judgment said:-

”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 Constitution and the Party guidelines.”

The interpretation of Section 87 of the Electoral Act is not meant to operate at large, so as to open a flood gate for litigations by political party members, who are

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dissatisfied with the conduct of the primaries elections.

The jurisdiction of the Courts, under this Section, is limited to examining, if the conduct of the primaries elections were strictly in accordance with the Party’s Constitution and Guidelines. See Hope Uzodinma V. Sen. O. Izunaso (2011) 17 NWLR (Pt. 1275) 28. Therefore, what grants jurisdiction is non-compliance with Electoral Guidelines of the Political party and not its Constitution. The cardinal principle of law in the construction or interpretation of a statute is well adopted in the case of Owners of MV Arabella V. Nig. Agric Ins. Corp. (2008) 4-5 SC (Pt. 11) 189 at 211.

In his contribution to Emenike V. PDP’S case supra, Rhodes-Vivour, JSC made it very clear that limited jurisdiction would be invoked if primaries were not conducted in accordance with “Partys Constitution and Guidelines.

As rightly submitted on behalf of the 2nd and 4th respondents, to consider whether election has been conducted in accordance with Party Constitution and Electoral Guidelines, the Courts cannot be invited to decide, who the leader of such a party is, as that would be beyond the jurisdiction

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of such Courts in the light of Onuoha V. Okafor (1983) 2 SCNLR 244.

Also, in the case of PDP V. Sylva supra this Court, restated clearly that the right to nominate or sponsor a candidate for an elective position is a domestic right of a political party. It follows therefore that the issues of leadership and membership are internal affairs of a political party. In other words, it is not open for a Court to inquire into, the membership/leadership of a political party.

In the case before us, from questions 1 and 2 as reflected on the face of the Originating Summons (at page 47 Vol. 1 of the record of Appeal), I did state earlier in this conducted judgment that the appellant was not questioning the conduct of primaries. He cannot therefore be operating within the ambit of Section 87(9) of the Electoral Act so as to clothe the Court with jurisdiction.

On the foregoing conclusion, the lower Court was very clear in its pronouncements at pages 710 and 711 of Volume 2 of the record of Appeal which were reproduced earlier in the course of this judgment. The finding by the lower Court, cannot in the circumstance be faulted. The matter at hand is “an

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intra-party affair.” The concept of the phrase was defined by this Court in PDP V. K.S.I.E.C. (2006) 3 NWLR (Pt. 968) 565 at 577 as-

“A dispute between members of the party inter se, or between a member on the one hand and the party on the other.”

Also in PDP V. Sylva (supra) at page 146 this Court held thus:-

“Consequently, the Court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections or to determine any dispute arising from the internal affairs of a political party.”

In arguing this issue further, the appellant has relied on the decisions of this Court in Lokpobiri V. Ogola (2016) 3 NWLR (Pt. 1499) 328, Jev V. Iyorton (2014) 14 NWLR (Pt. 1428) 1428 at 612 – 613 and Gbilere V. Addingi (2014) 16 NWLR (Pt. 1433) 394. The authorities are to the effect that the Federal High Court has jurisdiction even if the Federal Government or its agencies are not parties to the suit or the claims against the Federal Government or its Agencies are ancillary.

As rightly submitted by the learned counsel for the 2nd and 4th respondents, the binding facts of the foregoing cases, which also

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distinguishes them from this instant appeal, is that the main claims in the aforementioned cases, even though not directed at the Federal Government or its Agency, were justiciable, as they fell within the purview of Section 87(9) of the Electoral Act,2010 (as amended).

It is pertinent to restate at this point that the appellants reliance on the case of Lokpobiri V. Ogola and the other related cases supra, is of no assistance to him.

In the Lokpobiri’s case for instance, this Court re-affirmed the well known principle that, “in civil actions, the jurisdictions of a Court to hear and determine the plaintiffs action, depends on the claims in the Writ of summons and his pleadings.” On the other hand, the jurisdiction of the Court to hear and determine an election or election related matter, is statutory.

Contrary to the submissions of the learned counsel to the appellant, the Courts position is that “When the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act, 2010 (as amended).

Contrary also to the contention

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held by the learned counsel representing the appellant, the entire case of the appellant revolved on, who was the alter ego of the party between the Chairman, whose tenure was purported by the appellant to have expired and who, is said to have been restrained by an order of the Court. The controversy is not squarely on issues coming within the contemplation of Section 87(9).

With reference made to the case of Lokpobiri V. Ogola (supra), Onnoghen, JSC (as he then was) at p.365 held and said:-

“It is therefore my considered opinion when the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act (as amended).”

Furthermore, in the case of Anyanwu V. Ogunewe supra this Court, held that a complainant in such a case (that is under Section 87(9) must bring himself squarely within the confines of the provisions of Section 87(9) of the Electoral Act so as to say that:-

He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of a political

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party ”

(Emphasis is provided).

In the case under consideration, it is obvious that the appellants case was not premised on “non-compliance with the provisions of the Electoral Act or the guidelines of a polity party.” Rather, it is predicated on non-compliance with the orders of a Court and or leadership tussle. It is patently clear therefore, that the principal reliefs are not within the purview or contemplation of Section 87(9) of the Electoral Act; thus depriving the Federal High Court of jurisdiction to entertain the suit as couched by the appellant.

In the case under consideration further, the principal reliefs sought and the basis which they are sought have nothing to do with Section 87(9) of the Electoral Act, 2010 (as amended). They also have nothing to do with Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, even though the 1st respondent is an agency of the Federal Government.

It is obvious therefore that the Federal High Court lacks the jurisdiction to entertain the suit.

The appellants counsel related copiously also to the case of Ugwu V. PDP supra. It was stated affirmatively in that

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case that, for such a suit under Section 87(9) to be competent, a plaintiff must be an aspirant, who participated in the primaries and his complaint must be on non-compliance with the Electoral Act or the guidelines of a party, not on non-compliance with the order of a Court.

Therefore, contrary to the submission by the learned counsel for the appellant, the lower Court was not shown to have acted in direct affront in any way on the decision of this Court in the case of Ugwu V. PDP (supra). The counsel, I hold must have misconceived the interpretation made by the lower Court.

I have said times without number that, as rightly submitted by the respondents, the appellants case in this appeal is predicated on non-compliance with the order of a Court, party leadership and membership of a political party.

The suit, in other words, was not predicated on non-compliance with the Electoral Act or the guidelines of a party. The suit in the circumstance cannot come under Section 87(9) of the Electoral Act. It is therefore not competent. The same principle held in Ugwu’s case was applied also in APGA V. Anyanwu (2014) 7 NWLR (Pt- 1407) 541.

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The law is well settled that where a Court does not have jurisdiction over the principal claims, it cannot adjudicate over the suit. See Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) p.517.

For all intents and purposes and on the totality of the said issue in question, I hold the firm view that the learned justices of the lower Court were on a solid ground, when they held that the trial learned judge was right in her judgment, that the appellants main claims were not within the purview of the provisions of Section 87(9) of the Electoral Act.

In other words, the lower Court came to the right conclusion when it affirmed the decision of the trial Court that the claims of the appellant (the claimant) are not justiciable.

The said issue is hereby resolved against the appellant.

I wish to state at this point also that, as rightly observed and stated by the 1st respondent’s counsel, it is a fact that a different party (that is to say PDP) and not the 2nd respondent (APGA) is the ruling party in Abia state. As rightly submitted by the said learned counsel, the practical situation on ground also renders the principal claim of the

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claimant of no useful benefit.

In other words, even if taken for granted, the appellant was declared to be the 2nd respondent’s candidate in the said election, it is an established fact that the 2nd respondent lost the said election. Certainly the appellant could not have prayed properly that the election of a stranger should be set aside in the circumstance.

Ordinarily, and with the PDP Government now in power, the entire suit for that reason will give no useful benefit but is an academic exercise.

However, and in view of the decision of this Court in Ugwu V. PDP. I have nevertheless determined the merit of the appeal. In that case, this Court per Aka’ahs, JSC had this to say at page 496 in a similar situation:-

“I agree with the learned counsel for the appellant that since the learned trial judge held that the action was non-justiciable and consequently declined jurisdiction which was endorsed by the lower Courts, 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.”

On the totality of this appeal,

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same is sufficiently determined conclusively on the said issue wherein the appellants claims are not justiciable and the concurrent judgments of the two lower Courts are also affirmed by me.

The other issues formulated by the appellant are discountenanced.

This Court like the two lower Courts is also bereft of any jurisdiction and the appeal is hereby struck out.

No order is made as to costs.

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SC. 751/2016