Isah Shuaibu Lau V. Peoples Democratic Party [PDP] & Ors(2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Appeal relates to a pre-election matter. The Appellant and the third Respondent participated in the Taraba North Senatorial District primary election conducted by the first Respondent on 11/12/2016, and the third Respondent was declared the nominated candidate.

Dissatisfied with the state of affairs, the Appellant instituted an action against the first and second Respondents only at the High Court of the Federal Capital Territory, Abuja, wherein he questioned the eligibility of the third Respondent to vie for the senatorial seat.

The third Respondent was not listed as a Party in the original Originating Summons filed on 18/12/2014 but the Appellant applied\and was granted leave of Court to join him as a Party on 23/12/2014 which resulted in the first amendment of the Originating Summons.

The first Respondent filed a Counter-Affidavit to the Amended Originating Summons, wherein it was averred in paragraphs 27- 30

– 27. On 30/12/2014, Alh. Garba Umar [third Respondent] wrote to the 1st Defendant [PDP] a letter of withdrawal from contesting the Taraba

1

North Senatorial seat under the platform of the 1st Defendant.

28. Consequent to the withdrawal of Alh. Garba Umar [third Respondent] the 1st Defendant substituted his name with Alh. Sani Abubakar Danladi [fourth Respondent] as her candidate for Taraba North Senatorial seat at the 2015 General Election.
29. -Alh Garba Umar is no longer the 1st Defendants candidate for Taraba North Senatorial seat at the 2015 General election.

30.The 1st Defendants candidate for Taraba North Senatorial seat for the 2015 General election is Alh. Sani Abubakar Danladi.

In reaction, the Appellant made an oral Application that was granted by the trial Court on 12/3/2015, for the joinder of the said Alhaji Sani Abubakar Danladi as the fourth Defendant to the Suit. The Appellant later filed a Further Amended Originating Summons on 16/3/2015, wherein he tabled the following four Questions for Determination

a. Whether by the combined provisions of S. 87(1), (2) (c) (i) and (ii) of the Electoral Act, 2010 (as amended), Chapter VIII Section 50(1) (2) of the 1st Defendant’s Constitution and Part V, Articles 22 (i), 24 (1) b, c, and e and 25 (v)

2

of the 1st Defendant’s Guidelines for Primary Election 2014, it is mandatory for the 1st Defendant to present its Senatorial candidate from among the aspirants who had expressed interest, screened for same and actually participated with the highest number of votes in the primary election for senatorial positions.

b. Whether by the combined provisions of S.87 (1), (2) (c), (i) and (ii) of the Electoral Act, 2010 (as amended). Chapter VIII Section 50 (1) (2) of the 1st Defendant’s Constitution and Part v, Articles (22) i, (24) 11) b, c, and e and (24) v (sic) of the 1st Defendants Guidelines for Primary Election 2014, the 4th Defendant who had not expressed interest, screened for and participated in the 1st Defendant’s primaries conducted for Taraba North Senatorial District can emerge as a Senatorial candidate for election in respect of Taraba North Senatorial District, Taraba State.

c. Whether with the purported withdrawal of the 3rd defendant as the senatorial candidate for Taraba North Senatorial District, the Plaintiff should not be declared as the authentic candidate for Taraba North Senatorial District, Taraba State, having complied with

3

all the requirements of the 1st Defendant and also polled the 2nd highest number of votes at the primaries held on 11/12/2014

d. Whether the purported emergence of the 4th Defendant as the Senatorial candidate of the 1st Defendant for Taraba North Senatorial District when he did not express interest, attend the necessary screening and participated in the Senatorial primaries thereto is not unlawful, null and void and automatically disqualifies him from participating in the National Assembly Election slated for 28/3/2015.

Whereof, the Appellant as the Plaintiff, sought the following reliefs –

1. A Declaration that it is mandatory for the 1st Defendant to present its Senatorial candidate ONLY from among the aspirants who had expressed interest to contest having been screened and actually participated in the primary for the senatorial elections in respect of Taraba North Senatorial District, Taraba State.
2. A Declaration that the 1st Defendant cannot validly effect substitution of the 3rd Defendant with the 4th Defendant as candidate for the Taraba North Senatorial District, Taraba State without regard to the result and outcome of the

4

primary election conducted on 11/12/2014

3. A Declaration that the purported emergence of the 4th Defendant as the Senatorial candidate of the 1st Defendant for Taraba North Senatorial District when he did not express interest to contest same, was not screened by the 1st Defendant nor participated in the primary election is unlawful, null and void and automatically disqualifies him from participating in the National Assembly Election slated for 28/3/2015.
4. An Order setting aside the purported substitution of the 3rd Defendant with the 4th Defendant as the Senatorial candidate of the 1st Defendant for Taraba North Senatorial District and disqualifying him from participating in the National Assembly Election slated for 28/3/2015.
5. An Order of injunction restraining the 1st Defendant either by itself, officers, agents, privies, staff or through any person(s) however from allowing the 4th Defendant to participate in the National Assembly Election slated for 28/3/2015.
6. An Order of injunction restraining the 2nd Defendant from recognizing, accepting and or dealing with the 4th Defendant as the candidate of the 1st Defendant for Taraba

5

North Senatorial District in the National Assembly Election slated for 28/3/2015.

7. An Order declaring the plaintiff as the winner of the 1st Defendants primary election conducted on 11/12/2014 and also as the authentic candidate of the 1st Defendant for Taraba North Senatorial District having scored the second highest number of votes at the said election as the 3rd Defendant who polled the highest number of votes had withdrawn his candidacy for the said election scheduled for 28/3/2015.
8. An Order substituting the name of the 4th Defendant with that of the Plaintiff (with immediate effect) as the 1st Defendants candidate for Taraba North Senatorial District in respect of the National Assembly election slated for February 2015 (sic)

Upon being served, the first and fourth Respondents filed Notices of Preliminary Objection. First Respondent challenged the competency of the action and urged the trial Court to strike out same because-

(1) The facts leading to this action are hostile and contentious and not just for interpretation of statutes or documents that can be brought by Originating Summons procedure.

(2) The

6

Plaintiffs Further Amended Originating Summons has substantially altered the cause of action of the Plaintiff by his Affidavit filed on 16/3/2015

(3) The Plaintiff has amended his Affidavit without leave of the Hon. Court.

(4) The Plaintiffs Affidavit accompanying the Further Amended Originating Summons has introduced fresh and conflicting facts and new exhibits which Affidavit amounts to amending evidence already sworn before the Honorable Court.

(5) The Plaintiffs Affidavit of 16/03/2015 is liable to be struck out for being amended without leave of the Honourable Court.

(6) The Plaintiffs case is liable to be struck out consequent upon the striking out of the Affidavit or Pleadings ordered so that the matter can be heard on Writ of Summons and oral evidence adduced.

Fourth Respondent objected to the Suit on the following Grounds-

1. This Hon. Court lacks jurisdiction to entertain this Suit as the subject matter relates to the Senatorial seat of Northern Taraba and having regard to the fact that the Independent National Electoral Commission (INEC) an agency of the Federal Government, is a party to

7

the suit.

2. The Plaintiffs suit is academic and will not confer any benefit on the plaintiff as the plaintiff did not participate in the National Assembly Election of Northern Taraba Senatorial seat which took place on 28/3/2015.
3. The Suit relates to who the 1st Defendant, the Peoples Democratic Party (PDP) ought to have presented as its candidate as between the Plaintiff and the 4th Defendant which is a political question over which the Court has no jurisdiction and it is not a dispute that can be entertained under Section 87 of the Electoral Act, 2010 (as amended).

On 6/5/2015, the Preliminary Objections were heard together with the substantive Suit, and after Addresses, Judgment was reserved. However, by a Special Hearing Notice and Directions, the trial Court invited counsel to attend Court on 1/7/2015, to further address it on ”jurisdiction, to wit, whether by virtue of Section 251 (1) (p) and (r) this Hon. Court can validly assume and exercise jurisdiction over the Parties and subject matter of action” Learned counsel were also ordered ”to file and exchange written submissions before that date”

Learned counsel complied

8

with the Orders, and in his judgment delivered on 10/7/2015, the learned trial judge, Ashi, J., concluded –

I am of the firm view that this action is incompetently constituted by reason of the presence of the 2nd Defendant as a Party, which has robbed this Court of jurisdiction to entertain the Claim. In the circumstances, I find it unnecessary to consider other Grounds of Preliminary Objection filed by the Defendants. In consequence, this action ought to and is hereby struck out for want of jurisdiction.

Aggrieved, the Appellant appealed to the Court below with a Notice of appeal containing five Grounds of appeal. The first and the fourth Respondents filed similar Notices of Intention to contend that the judgment of the trial Court should be affirmed on other Grounds i.e.

1. The Appellants Suit relates to who the 1st Respondent ought to have presented as its candidate to the 2nd Respondent for the 2015 General Election; which is a political question over which the trial Court has no jurisdiction.
2. The Appellants Suit does not relate to dispute arising from the conduct of the 1st Respondent’s primary election and

9

therefore not a dispute that can be entertained under Section 87 of the Electoral Act (as amended)

3. The trial High Court of the Federal capital Territory Abuja lacks the jurisdiction to have entertained the Suit as the subject matter relates to the Senatorial seat of Northern Taraba State outside the Federal Capital Territory.

In its judgment of 21/4/2015, the Court below held that the trial Court was right when it declined jurisdiction to entertain the suit, and with regard to the Respondents’ Notice, it concluded as follows –

The Appellant’s complaint has nothing to do with the conduct of the 1st Respondent (PDP’s) primary election that produced the 3rd Respondent as its candidate under Section 87 of the Electoral Act, 2010 (as amended), but rather his complaint is on non-qualification of the 4th Respondent to be sponsored by his Party and the substitution of the 3rd Respondent with the 4th Respondent by the 1st Respondent (instead of the Appellant). For the above reasons, the Appellants case before the trial Court is not justiciable. The issue is resolved against the Appellant and in favour of the Respondents. There is merit

10

in the 1st and 4th Respondents Notice of Contention. In whole, there is no merit in this Appeal and it is hereby dismissed. There is no order as to costs.

Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing seven Grounds of Appeal, and he formulated four issues for Determination his Brief of argument, as follows –

(i) Whether the Court of Appeal was right in holding that the Appellants action is not justiceable (sic) under Section 87 (9) of the Electoral Act, 2010 (as amended)

(ii) Whether the Court below was right in holding that the trial Court has no jurisdiction to hear and determine the Appellants Suit because of the involvement of Independent National Electoral Commission (INEC) as a party to the Suit.

(iii) Whether the Justices of the Court of Appeal were right in the decision that the election having been held and the winner declared, the pre-election matter filed by the Appellant had become academic or hypothetical.

(iv) whether the Justices of the Court of Appeal were right in their decision that the trial Court having found that it has no jurisdiction to hear and

11

determine the Appellant’s case, there was no need to proceed further to determine the Appellants substantive Originating Summons.

The first Respondent adopted the four issues as formulated by the Appellant in its Brief of Argument. The second Respondent posed a question in its own Brief – Whether or not the legal position of the 2nd Respondent in this Suit is that of an umpire in these proceedings Obviously, this question is not an issue for determination since there is no such complaint the Grounds of Appeal filed this Appeal.

It is settled that issues are formulated from Grounds of Appeal, which must relate to the decision appealed against – lwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308. In effect, the question posed in the second Respondent’s brief is of no relevance in this Appeal.

Besides, the second Respondent merely stated in its brief that guided by the admonition of this Court in A-G, Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1, it is an impartial umpire, and will abide by the decision of this Court. So, it really had nothing to contribute.

The third Respondent adopted issues (i) and (ii) formulated by the

12

Appellant; while the fourth Respondent adopted all four issues.

Issue (i) questions whether the Appellant’s action is justiciable under Section 87(9) of the Electoral Act, 2010 (as amended), and the Appellant submitted that the said Judgment of the Court below is a “holistic adoption of arguments and submissions” of first and fourth Respondents with less or no consideration given to his case; and that Plaintiff’s case determines jurisdiction and the Court will not examine Respondent’s counter-Affidavit, as in this case -Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 1, Senate President V. Nzeribe (2004) 9 NWLR (Pt. 878) 251, Jev v. Iyortyorn (2014) 14 NWLR (Pt. 1428) 575.

He cited the following cases on the requirements for bringing a pre-election matter under the said Section 87 {9) of the Electoral Act , Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 34 Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591, CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66 and Nagogo v. CPC (2013) 2 NWLR (Pt. 1339) 448 and submitted that his cause of action satisfied the stated requirements, including the most important – that the complaint must be against non-compliance with provisions

13

of the Electoral Act and Guidelines or Constitution of a Political Party in the conduct of primary election.

Furthermore, that no Party can submit the name of a candidate without meeting conditions stipulated under the Sections of the Act; that a breach is fundamental and contrary to Section 87 of the Act – Gbileve v. Addingi (2014) 17 NWLR (Pt. 1433) 394 and that where a candidate withdraws, it becomes incumbent on the first Respondent to send his name to the second Respondent as the person with the second highest number of votes – Amaechi V. INEC (2008) 5 NWLR (Pt.1080) 317, Anagwu v. INEC (2012) All FWLR (Pt 1689) 1739.

He submitted that by forwarding fourth Respondents name, the first Respondent acted arbitrarily and in violation of the rules, laws and guidelines for the nomination of a candidate; that the Court will not allow a political party to act arbitrarily or as it likes because it must obey its Constitution – Uzodinma V lzunaso (2011) 17 NWLR (Pt. 1275) 3050; and that the procedure for nomination is not left to the whims and caprices of party officials Ardo V Nyako (supra).

He further argued that the Court below ignored his

14

complaint, which is justiciable under the said Section 87(9) – Ugwu V PDP (2015) 7 NWLR (Pt. 1459) 478, CPC v. Ombugadu (supra), and that it relied on this Court’s decisions in Ugwu V. PDP (supra), Eyibo v. Abia (2012) 16 NWLR (Pt. 1325) 52, Gwede V INEC (2014) 18 NWLR (Pt. 1438) 50, Emeka v. Okadigbo (2014) 18 NWLR (Pt .1331) 55, Dalhatu V. Turaki (2003) 15 NWLR (Pt 843) 310, Emenike v. PDP (2012) 210 LRCN 91; wherein nominated candidates participated, unlike in this case, where fourth Respondent did not participate in the primaries.

On its part, the first Respondent submitted that facts presented by the Appellant in his Amended Originating Summons do not fit into the situation contemplated by Section 87 of the said Act; and that the said Section is not relevant to a situation in which a Political Party held a primary election, which resulted in the victory of a candidate, whose name was forwarded to INEC but who later withdrew and had to be substituted with another candidate by the Political Party.

It referred to the Appellant’s submissions at the lower Courts and posed the question – if by his own admission (and rightly so), the Appellant did

15

not win the primary election, how would Section 87 (of the Electoral Act) on which he built his case be relevant to his case

It argued that the principal Reliefs in the Amended Originating Summons were targeted at stopping the fourth Respondent from contesting the main election; that the event that brought the fourth Respondent into the process had nothing to do with the way the said primaries was conducted; that it is only the aspirant, who claims he scored the highest number of votes that can bring an action under the said Section 87(9) – Lado V. CPC (2011) 18 NWLR (Pt 1279) 692.

Furthermore, that such action must center on irregularity or dissatisfaction about the way the primary election was conducted – PDP V. Sylva (2012) NWLR (Pt. 1316) 85, Jev v lyortyom (supra), Emenike v. PDP (supra) Ardo V Nyako (supra,), Anyanwu V. Ogunewe (2014) 231 LRCN 42) and that Section 87 of the said Act has nothing to do with replacement or substitution of a candidate.

It further submitted that the said issue falls within the domestic affairs of the Political Party, over which a Court does not interfere – PDP V. Sylva (supra), Lado v. CPC (supra);

16

Emenike V. PDP (supra); that the only limit to the unfettered discretion of a Political Party to sponsor or nominate a candidate is Section 87 of the Electoral Act, which forbids it from forwarding name different from the candidate, who scored the highest number of votes in its primaries to INEC; that the Appellant does not qualify as such candidate having not won its primary election (by his own admission) conducted on 11/12/2014.

Furthermore, that it is contradictory on the Appellants part to assert that his complaint is about the conduct of the primary election and at the same time contend that he ought to have been made its candidate because he allegedly came second based on the primaries; and that relying on it to have his name forwarded as its candidate in the main election is an admission that he had no problem with the primaries and was not complaining about the way it was conducted.

It also submitted that the decision in Amaechi V. INEC (supra), cited by the Appellant, has nothing to do with the said section 87; that its Guidelines made provision for replacement of a candidate, who withdraws his candidacy after his name is

17

forwarded to INEC, and it did not need to conduct a fresh primary election; and that any candidate chosen as replacement is deemed to have continued from where the other candidate, who withdrew his candidature, stopped – Wada v. Bello (unreported) Appeal No. SC.674/2015 of 30/9/2016.

On this issue 1, the third Respondent reproduced the decision of the Court below, and then stated as follows at page 7 of his Brief-

The 3rd Respondent concedes to the argument and submission of the Appellant under paragraphs 4.05 – 4 21 contained at pages 15 – 19 of the Appellants Brief of Argument.

The fourth Respondent, in line with the first Respondent, also argued that Appellant’s case is not justiciable under the said Section 87 (9); that it is mandatory for the Appellant to limit his complaint or claim within the confines of that Section for the Court to have jurisdiction- APGA V. Anyanwu (2014) vol. 231 LRCN 1, Lado v. CPC (supra). Emenike v. PDP (supra); that having failed to bring himself within the said provision,he has no cause of action to be enforced, and the Court has no jurisdiction to entertain the action, particularly as the issue

18

borders on who should be the candidate of first Respondent, which remains within the domestic jurisdiction of Political Parties, and is not justiciable – Adebayo & Ors V. PDP (2013) Vol. 221 LRCN 1.

He further argued that the Appellant’s complaint is covered by Section 33 of the Electoral Act, which allows a Political Party to make substitution in the circumstances; that though the Electoral Act does not provide procedure for substitution, the process is provided for in first Respondent’s Guidelines, and Appellant is not complaining that this was not followed in the substitution of the third Respondent; that substitution takes place after primaries, and the winner’s name submitted to INEC therefore, his complaint has nothing to do with the conduct of the said primaries, which had long been concluded.

He submitted that jurisdiction donated to the said Courts by Section 87(9) relates to complaints arising from conduct of primaries and not substitution after the withdrawal of a sponsored candidate – Ardo V. Nyako (supra); that Appellant is asking the Court to compel first Respondent to sponsor him, which this Court has consistently declined to

19

do – Ardo v. Nyako (supra), Emenike V. PDP (supra); that the trial Court was right to hold that it lacked jurisdiction, and the Court below was right to uphold that decision Lado V CPC (supra), Ehinlanwo v. Oke (2008) SCNJ (Vol. 6) 316 and that the Appellant’s arguments, hinged on Amaechi V. INEC (supra), cannot stand in the face of the decision of this Court in Ehinlanwo v. Oke & Ors (supra).

He also referred to the definition of “Substitution” by this Court in Ugwu v. Ararume (2007) All FWLR (Pt 377) 809, and argued that the fourth Respondent stepped into the shoes of third Respondent, took the batting and continued where the third Respondent stopped, which is the position, taken by this Court in Wada V. Bello (supra)

He argued that since there is no relief against third Respondent either challenging his competence to contest the primary election, emergence as winner or nomination as first Respondent’s candidate, there cannot be any valid challenge against the fourth Respondent, who simply took over and substituted the third Respondent and that the facts of Falake V. Bello (supra) and Amaechi V. INEC (supra) are distinguishable

20

from this case, where Appellant is asking the Court to compel first Respondent to nominate/sponsor him as its candidate.

The Appellant submitted in his two Reply Briefs that in determining whether the Suit is justiciable under the said Section 87(9), the Court looks at the Plaintiffs entire case to see if there is a violation of the Electoral Act and the Constitution and Guidelines of a political party – Emeka V. Okadigo (2012) 18 NWLR (Pt .1331)55; that the Court has to look at the questions and the claims in the originating processes, and supporting affidavits – Emeka V. Okadigo (supra), Olley V. Tunji (2013) 10 NWLR (1362) 275 SC and that the four questions he raised border on violation of the Electoral Act and the Party’s Guidelines.

The Appellant is right that a Plaintiff must raise question(s) for determination in an originating summons and ask for declaration of rights based on answers to the question – see Olley V. Tunji (supra), wherein this Court, per Onnoghen, JSC (as he then was), observed –

For a Plaintiff to successfully approach the Court and for the Court to hear him and determine his complaint by way of Originating

21

Summons procedure under the said Section 87(9) of the Electoral Act, he must seek the determination of a question of construction, which relates to or arises from the provisions of the Electoral Act or the relevant Political Party Guidelines relating to nomination of candidates.- His reliefs(s) must be predicated on a determination of any question relating to the Electoral Act and/or relevant Party Guidelines on Nomination of Political Party candidates for Elections.

In this case, Appellant raised four questions, which I will reproduce-

a. Whether by the combined provisions of S. 87(1), (2) (c) (i) and (ii) of the Electoral Act Chapter VIII Section 50 (1) (2) of the 1st Defendants Constitution and Part v. Articles 22 (i), 24 (1) b, c, and e and 25 (v) of the 1st Defendants Guidelines it is mandatory for the 1st Defendant to present its Senatorial candidate from among the aspirants who had expressed interest, screened for same and actually participated with the highest number of votes in the primary election for senatorial position.

b. Whether by the combined provisions of S. 87(1), (2) of the 1st

22

Defendants Constitution and Part V, Articles (22) 1, (24) (1) b, c, and e and (24) v (sic) of the 1st Defendants Guidelines for Primary Election 2014, the 4th Defendant who had not expressed interest, screened for and participated in the 1st Defendant primaries conducted for Taraba North Senatorial District can emerge as a Senatorial candidate for election in respect of Taraba North Senatorial District, Taraba State.

c. Whether with the purported withdrawal of the 3rd Defendant as the Senatorial candidate for Taraba North Senatorial District, the plaintiff should not be declared as the authentic candidate for Taraba North Senatorial District, Taraba State having complied with all the requirements of the 1st Defendant and also polled the 2nd highest number of votes at the primaries held on 11/12/2014.

d. Whether the purported emergence of the 4th Defendant as the Senatorial candidate of the 1st Defendant for Taraba North Senatorial District when he did not express interest, attend the necessary screening and participated in the Senatorial primaries thereto is not unlawful, null and void and automatically disqualifies him from

23

participating in the National Assembly Election slated for 28/3/2015.

The afore-said Section 87(9) of the Electoral Act, 2010 (as amended), which is the main wheel around which this Appeal turns, say that-

Notwithstanding the provisions of this Act or rules of a Political Party, an aspirant who complains that any of the provisions of this Act and the Guidelines of a Political Party has not been complied with in the selection or nomination of a candidate of a Political party for election, may apply to the Federal High Court or the High Court of a State or of the Federal Capital Territory for redress.

Section 156 of the Act defines an “aspirant’ as “a person who aspires or seeks or strives to contest an election to a political office”; and as Onnoghen, JSC (as he then was) stated in Ardo v. Nyako (supra)-

In interpreting the provisions of Section 156 and 87 (9) of the Electoral Act, 2010 (as amended), we have to constantly keep in mind the fact that the definition of the word aspirant as used in both Sections has to be related to the subject matter of the Suit or cause of action since what we are trying to determine is the

24

issue as to whether the Court has jurisdiction to entertain the action as constituted.

In this case, the first Respondent argued that since the Appellant did not win the said primaries, the said Section 87 (9) of the Electoral Act is not relevant to his case, But this line of argument is misconceived.

The law does not say that an “aspirant must win the primaries before he can seek redress under Section 87 (9) of the Electoral Act. As Onnoghen, JSC (as he then was) added in Ardo V. Nyako (supra)

Under the said Section 87 (9), an aspirant – – is the one, who complains that any of the provisions of the 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.If follows that for a Party/Person to qualify or have the locus to institute an action on a matter arising from the nomination of a Partys candidate for an election, he must have participated in the nomination exercise of the party and failed irrespective of whether nomination is a process or an event. Where a Party did not participate in the

25

primary election- -he cannot sue on the processes leading to and including the actual primary election, because by the provisions of the said Section 87 (9), the Court will have no jurisdiction to hear and determine the action.

So, the aspirant must have participated in the nomination exercise and failed – whether or not the nomination is a process or an event. A “process” is a “series of actions or steps taken in order to achieve a particular end” Cambridge Dictionary and an “event” is defined as “something that happens; the outcome, issue or result of anything” – Dictionary.com. This Court made it clear in Ardo V. Nyako (supra) that where the Party did not participate in the nomination exercise, “he cannot sue on the processes leading to and including the actual primary election”. Looking at this standpoint in reverse, an aspirant, who participated in the nomination exercise, has the locus to sue on “the processes leading to and including the actual primary election”

The first and fourth Respondents contend that the Appellant’s case has nothing to do with the primaries conducted on 11/12/2014, but everything to do with events that

26

took place after 30/12/2014, when the third Respondent withdrew from the race, and when the first Respondent decided to replace him with the fourth Respondent.

They both insist that the said Section 87(9) of the Electoral Act has nothing to do with withdrawal and substitution of a candidate and referred this Court to Section 33 of the same Act that provides-

A Political Party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdraws by the candidate.

The fourth Respondent pointed out under Issue 2 that while the said Section 33 of the said Act does not provide for how a Political Party can go about substituting candidates, Part VI – Article 50 of the first Respondent’s Guidelines for Primary Election 2014 provides that –

The National Executive Committee on the recommendation of the National Working Committee may substitute the name of a candidate earlier submitted to the Independent National Electoral Commission (INEC) if the nominated candidate dies or withdraws.

They both argued that the Appellants complaint relates to whom, between him and fourth Respondent ought to have substituted the third Respondent after his withdrawal, which is a

27

political question outside the purview of the said Section 87(9) of the Electoral Act.

The fourth Respondent added that the said special jurisdiction do not cover the Appellant’s claims because they do not relate to the procedure for substitution in the first Respondents Guidelines or the conduct of primaries under the said Section 87 of the Electoral Act.

The Appellant conceded that matters relating to nomination of candidates are domestic affairs, which are treated as not justiciable, but argued that where a dissatisfied contestant complains about the conduct of the primaries, the Court has jurisdiction to examine if it was conducted in accordance with the Act and the Party Guidelines, because the Court will not allow a Political Party to act arbitrarily.

He also argued in the alternative that even if his complaint was about the substitution, the power of the Political Party to substitute is part of the process of selection and nomination of its candidate, therefore, where the substitution is unlawful and in violation of the Constitution and the Party Guidelines, a dissatisfied contestant has the right to challenge such unlawful

28

substitution under Section 87(9), citing Wambai V. Donatus (2014) 14 NWLR (Pt. 1427) 233 at 257, wherein this Court, per Rhodes-Vivour, JSC, observed as follows –

The unlawful substitution of the 1st Respondent and replacement with the appellant is the centerpiece of the 1st Respondents claims. Unlawful substitution is the Claim 1. It is a pre-election matter. Only a Federal High Court or a State High Court or a Federal Capital Territory High Court has jurisdiction by virtue of 87 (9) — to hear such claim.

The Appellant also says that the centerpiece of his case is two-fold – nomination of the third Respondent in violation of Section 87(1) of the Electoral Act and first Respondent’s Guidelines; and the unlawful substitution of third Respondent with fourth Respondent, which he argued are justiciable complaints under Section 87(9) of the said Act; and as one cannot put something on nothing, there cannot be a valid substitution of third Respondent when his nomination was invalid.

As I pointed out earlier, the nomination in question could be a process or an event. The first and fourth Respondent argued that the facts of this case do

29

not fit into the situation contemplated by Section 87 (9) of the Electoral Act. In the first Respondent’s words –

Those events i.e. withdrawal of the 3rd Respondent and the Party’s decision to replace him with the 4th Respondent has nothing to do with the way the 1st Respondent’s primary election was conducted on 11/12/2014.

But “those events”, as he put it, have a lot to do with the nomination, because they are part of the processes involved in the said exercise Section 87 (1) (2) (3) and (4) (c) of the said Electoral Act provides

(1) A political party seeking to nominate candidates for elections under this Act SHALL holds primaries for aspirants to all elective positions.

(2) The procedure for the nomination of candidates by political parties for the various elective positions SHALL be by direct or indirect primaries.

(3) A political party that adopts the direct primaries procedure SHALL ensure that all aspirants are given equal opportunity of being voted for by members of the party.

(4) A Political party that adopts the system of indirect primaries for the choice of its candidate SHALL adopts the procedure

30

outlined below-

(c) in the case of nomination to the position of a candidate to the Senate, House of Representatives and State House of Assembly, a political party SHALL, where it intends to sponsor candidates-

(i) Hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated center on specified date.

Part V Article 22 of the first Respondents Guidelines provides that Any aspirant for the primary election to the National Assembly SHALL

k. In the case of an aspirant for the membership of the Senate, be nominated by 30 (thirty) persons from at least two-thirds of all the Local Government Areas within the Senatorial District, who shall be registered voters in their respective Local Government Areas within the Constituency, who shall be registered voters in the Constituency and also registered member of the party-

Part V Article 24 (1) of the first Respondents Guidelines provides-

The procedure for the nomination of an aspirant for the partys

31

primary election into the Assembly SHALL be as follows-

b. An aspirant SHALL obtain the Expression of interest Form Code PD 002/NA upon payment of the prescribed non-refundable fee of Five Hundred Thousand Naira (500,000.00) from the National Secretariat of the party or such other place as may be designated by the National Executive Committee on the recommendation of the National Working Committee of the Party and upon completion and return of same to the National Secretariat;

c. The nomination forms for the primary election to the National Assembly SHALL be obtained from the National Secretariat of the party upon payment of non-refundable fee of:-

(i) Four Million Naira (4,000,000.00) for a senatorial aspirant; and

(ii) Two Million Naira (2,000,000.00) for a House of Representative aspirant;

e. The duly completed nomination forms SHALL be accompanied by a sworn declaration by the aspirant made before a Commissioner of Oaths, or Notary Public Undertaking to abide by the Guidelines and any rules or regulations made by the Party relating to the conduct of primary election and code of conduct on behavior and directives of the party for

32

its members in the Senate and/or in the House of Representatives.

Part V Article 25 (v) of the said Guidelines provides as follows-

Only aspirants cleared by the State or FCT Screening Committee or whose appeal is upheld by the Appeal Committee SHALL be allowed to participate in the primary election.

As the Appellant rightly submitted, it is the Plaintiffs pleading that is used in the determination of whether the Court has jurisdiction, and the Court will not examine a Counter Affidavit filed by the other side – see Inakoju V. Adeleke (supra), where this Court stated clearly that it is the Affidavit in support of the Originating Summons that is used in determining the issue of whether or not the Court has jurisdiction.

In this case, Appellant filed a 45-paragraph supporting Affidavit, and the averments in his paragraphs 19 to 37 are to the effect that-

19. The 3rd Defendant, a former acting Governor of Taraba State, was never one of the aspirants for the said Senatorial Seat.
20. The 3rd Defendant was screened and cleared as Gubernatorial candidate for Taraba North Senatorial District.
21. As at the time

33

the 3rd Defendant submitted his Expression of interest Form and Nomination Forms for Gubernatorial Office of Taraba State, the time for submission of similar Forms for the National Assembly Election had expired.

22. The 4th Defendants name was not on the list of aspirants screened and cleared to contest the said primaries for National Assembly Election.
23. The 1st Defendant started the manipulation to make the 3rd Defendant senatorial candidate immediately after the Supreme Court judgment on 21st of November removing the 3rd Defendant as the acting Governor of Taraba State. At this time, the screening and nomination were closed.
24. Subsequent to (Appellants) clearance by the 1st Respondent, the stage was set for primary election by all three aspirants at the FCT, Abuja.
25. Even though the 3rd Respondent did not obtain Expression of interest Form and Nomination Form for National Assembly Election and was never screened nor cleared for the Senatorial Seat, 1st Defendant purportedly declared the 3rd Defendant as winner with about 60 votes while (he) came second with 5 votes. (Video annexed as Exhibit K1.
26. The

34

proceedings as recorded in the video (Exhibit K) showed the votes.

27. The 1st Defendant in an arbitrary manner added the two invalid votes to that of Jolly Nyame in an attempt to make him the 2nd highest candidates contrary to facts presented in the video.
28. The 1st Defendant changed the number of votes recorded in favour of the plaintiff and made Rev. Jolly Nyame second with the purported emergence of the 3rd Defendant as its candidate for the National Assembly Election slated for 28/3/2014 in respect of the Seat.
29. (He) instituted this action on 18/12/2014 challenging the eligibility of 3rd Respondent to contest the primaries held at Abuja on 11/12/2014.
30. The 1st Defendant in its Counter-Affidavit filed on 6/3/2015 stated that 3rd Defendant had by his letter and Notice of Withdrawal Form CF 004 both dated 30/12/2014 had withdrawn as its Senatorial Candidate.
31. The said Affidavit also revealed that the 1st Defendant had substituted the name of the 3rd Defendant with that of the 4th Defendant.
32. The 4th Respondent, who is now the current Acting Governor of Taraba State was never one of the aspirants for the Senatorial

35

Seat, because during the screening and the primary election for the Senatorial Seat, he was pre-occupied at the Supreme Court fighting his impeachment as Deputy Governor of Taraba State.

33. The 4th Respondent never obtained the Expression of interest Form to contest the primary election. He was not among those screened and never participated in the primary election. He did not score the highest number of votes.
34. It came to (him) as a surprise that the 4th Defendant could be made as Senatorial Candidate without complying with the provision of the 1st Defendants Constitution and Guidelines for its primary election.
35. The purported emergence of the 4th Defendant as Senatorial Candidate of the 1st Defendant through the stage managed withdrawal and the substitution of the 3rd Defendant violate 1st Defendants Constitution and its Guidelines for the conduct of National Assembly Election 2014.
36. The 4th Defendant, who has substituted 3rd defendant, is not eligible to contest and/or vie for the seat for not complying with 1st Defendants Constitution and guidelines for the conduct of National Assembly Election 2014, which

36

requires a person seeking to contest any elective position to first and foremost obtain, fill/complete and submit an Expression of interest Form and Nomination Form for the particular office, attend screening and be cleared, participate and with the primary election for same.

37. With the purported withdrawal of the 3rd Defendant, the plaintiff as the 2nd person with the highest votes cast at the primaries of 11/12/2014 ought to be the authentic candidate of the 1st Defendant for the Seat.

Looking at the questions presented in the said Originating Summons, the reliefs sought by the Appellant therein, and the facts as averred to in the Appellant’s Affidavit in support of the Originating Summons, there is no question that in the circumstances of this particular case, the Appellant’s case falls within the ambit of the said Section 87(9).

His complaint has to do with the process that allowed the third Respondent to participate in the said primaries with no regard to the provisions of the Electoral Act and the first Respondent’s Guidelines.

Obviously, there cannot be a valid substitution of a candidate when the nomination of the

37

candidate was invalid in the first place. As the Appellant rightly submitted, there must be a valid nomination of a candidate before there can be any replacement or substitution.

The word ”substitute” means “a person or thing that you use or have instead of the one you normally use or have” – see Peretu & Ors V. Garila & Ors (2012) LPELR 15534(SC), where Ngwuta, JSC, added

Blacks Law Dictionary, 9th Ed., define the word, substitution, a derivative of the word, substitute, as – “a designation of a person or thing to take the place of another person or thing; the process by which one person or thing takes the place of another person or thing.”

In this case, interestingly, the third Respondent actually conceded to the Appellant’s argument and submission “under paragraphs 4.05 – 4.21 contained at pages 15-19 of the Appellant’s Brief of Argument”, wherein the Appellant canvassed arguments on the ineligibility of the third Respondent to participate in the primaries for reasons stated.

The Appellant submitted that on the strength of his admission that the primaries that produced him as candidate was fraught with irregularities and violation of the Party’s

38

Constitution and Guidelines, it can safely be concluded that the nomination and selection of the third Respondent as the Party’s candidate was indeed null and void.

I agree completely. The third Respondent basically admitted that he was screened and cleared as a Gubernatorial Candidate but was allowed to participate in the primaries for National Assembly after he was removed by this Court as Acting Governor of the State.

To make it very clear, the third Respondent admitted that he was not an aspirant for the said Senatorial Seat; that as at the time he submitted his Expression of Interest Form and Nomination Form for Gubernatorial Office of Taraba State, the time for the submission of similar Forms for the said National Assembly Election had expired; and that although he did not obtain similar Forms for the National Assembly Election and was never screened nor cleared for the Seat, the first Respondent declared him the winner of the primary election for the Senatorial Seat and sent his name to the second Respondent.

These damning admissions by the third Respondent has pulled the rug from under the feet of the first and fourth Respondent

39

and anything they have to say to the contrary, is of no effect whatsoever.

The bottom line is that the Appellant had reason to challenge the participation of the third Respondent in the primary election and his reasons for so doing come under the purview of Section 87(9) of the Electoral Act, and the Court below was wrong to hold otherwise.

Issues 2 is whether the Court below was right in holding that the trial Court has no jurisdiction to entertain the action because of the involvement of the second Respondent as a Party to the said action.

The Appellant argued that the lower Courts failed to distinguish between jurisdiction of the Federal High Court under Section 251(1) of the Constitution and the concurrent jurisdiction given to the said Federal High Court, High Court of a State or of the FCT under the said Section 87 (9) of the Electoral Act in respect of pre-election disputes.

Furthermore, that the power conferred on Federal High Court to exercise exclusive jurisdiction is a general power while jurisdiction to hear and determine pre-election disputes is a special provision -Jev V. lyortyom (supra), KLM Airlines V. Kumzhi

40

(2004) 8 NWLR (Pt. 875) 231, NEPA V. Edegbero & Ors (2002) 18 NWLR (Pt. 798) 79 SC; and that notwithstanding the involvement of Federal Government or its Agency, States High Court have concurrent jurisdiction to hear any disputes arising from conduct of a primary election . Salim V. C.P.C. (2013) 6 NWLR (Pt. 1351)501, Gassol V. Tutare (2013) 14 NWLR (Pt. 1374) 221, Lokpobiri V. Ogola (2016)13 NWLR (Pt.1499) 328 at 389.

But the first Respondent alternated between conceding to the Appellant’s argument and contending that the Court below is right. On one hand, he said that there may be some force to his argument, but that the error committed by the Court below in this regard is not significant and will, therefore, not result in the appeal being allowed, because an appellate Court is concerned with whether a lower Court was right in its final decision even if a wrong reason was given by it.

However, he went on to argue that even if the Appellant’s case is justiciable, the Court below was right because the said Section 87 of the Electoral Act does not apply to Appellant’s case; and that the basis of this Appeal is the Appellant’s erroneous

41

belief that the FCT High Court shares concurrent jurisdiction with Federal High Court, but once this Court agrees that the said Section 87, on which the Appellant built his case does not apply, then this issue will collapse.

The third Respondent’s position is that the presence of INEC in the Appellant’s Suit robs the trial Court of the jurisdiction to hear and determine his Suit as constituted and, therefore, the Judgment of the Court below is in spirit of the provision of the said Section 251(1){r) of the Constitution of the FRN, 1999-Gbileve V. Addingi (supra).

The fourth Respondent canvassed argument on substitution, which I have earlier dealt with, but he also argued that while Section 87(9) of the Electoral Act is a special provision conferring jurisdiction on the Court listed therein, the Constitution in its Section 251(1) has exercised its supremacy by vesting exclusive jurisdiction on the Federal High Court with respect to specifc parties and reliefs; and that whereas the Appellants case cannot be accommodated under the specific provision of Section 87 of the Electoral Act, the relevant law to be considered for the purpose of

42

determining which Court has jurisdiction having regard to the parties and reliefs sought by the Appellant is Section 251(1)of the 1999 Constitution (as amended).

Furthermore, that Section 251 (1) (q) (r) and (s) of the said 1999 Constitution vests exclusive jurisdiction in the Federal High Court in actions involving the Federal Government or any of its agencies and the second Respondent is a Federal Government Agency within the contemplation of Section 251(1) (q) (r) and (s) of the Constitution; and the since the reliefs sought by the Appellant herein, includes an injunctive relief against second Respondent- a Federal Government Agency, the trial Court lacked jurisdiction to entertain this action.

This issue is easily resolved because this Court has made it very clear that the law has moved on since the 1999 Constitution vested the Federal High Court with exclusive jurisdiction over any action for a declaration or injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its Agencies, which includes INEC – the second Respondent herein.

The current position of the law is

43

that in exercising jurisdiction under Section 87{9) of the Electoral Act, the Federal High Court and the High Court of a State or FCT have concurrent jurisdiction to hear and determine disputes arising from conduct of a Party’s primaries – see Salim V. CPC (supra), wherein Peter-Odili, JSC, stated as follows

This Court would take the stand it took in Ucha v. Onwe [2011] 1 SCNJ 232 because of the brand new provision of Section 87(9) of the Electoral Act.. it is therefore, to be said in view of this novel provision that the previous all-embracing interpretation of Section 251 of the 1999 Constitution is given once the Federal Government or its Agencies are involved would have to be given a broad view in the co-existing situation of the provisions of Section 87(9) of the Electoral Act and the sui qeneris nature of the subject matter,. The Court of Appeal was in error in holding the Federal High Court had the exclusive jurisdiction to adjudicate on this pre- election dispute to the exclusion of the State High Court. This is because the jurisdiction is exercisable by either the Federal High Court or State High Court or High Court of FCT.

And lokpobiri V.

44

Ogola(supra), where in M.D. Muhammad, JSC, said- Section 251 of the 1999 Constitution(as amended) creates jurisdiction and make same exclusively excisable by the Federal High Court only in respect of the subject matters the paragraphs under the section cover. Election and election related matters, be it stressed, have not been provided for by any of the paragraphs under Section 251 of the 1999 Constitution,- -The contrary submissions of counsel in this regard are certainly misinformed and their reliance on our decision in PDP V. Sylva (supra) and Kakih V. PDP (supra) are without basis.

Obviously, the law is not static, particularly in election matters, and what the lawmakers have done with the enactment of Section 87(9) of the Electoral Act, is to make more Courts available to aspirants, who complain that provisions of the Electoral Act and Guidelines of a Political Party, has not been complied with in nominating candidates.

To insist on the narrow and limited jurisdiction exclusive to the Federal High Court under Section 251 (1) (q) (r) and {s) of the 1999 Constitution when it comes to election and election related matters, is to close the doors

45

that was opened to such dissatisfied aspirants to seek redress in the other High Courts other than Federal High Court. This I will not do; and this issue is resolved in favour of the Appellant.

Issue 3 is whether the Court below was right to conclude that since the election had been held and the winner thereof declared; this pre-election matter had become academic or hypothetical, and the issue as based on the conclusion of the Court below as follows-

I have carefully perused the claim and the reliefs sought by the Appellant at the lower Court, it is my view as rightly observed by the trial Court above that even if the judgment is given in favour of the Appellant, the judgment will not be worth more than the paper on which it is written if the Courts coercive power is not brought to bear on its implementation by INEC. In APC V. Dahiru & 3 Ors ( unreported) delivered on 21/12/2015this Court per Adumein, JCA stated that:-

In this case the 1st and 2nd Respondents by Originating Summons are seeking 7 reliefs. The first 4 prayers are declaratory in nature while the remaining are injunctive orders. The learned senior counsel to 1st

46

and 2nd Respondent admitted that the order of injunction sought that is Reliefs e g seem untenable due to effusion of time and occurrence of events. I completely agree that prayers e-g, which are injunctive reliefs, sought by 1st and 2nd Respondents have been overtaken by events. This is because the election, in respect of which the injunctive orders are sought, has been conducted by the 3rd Respondent. The law is that injunction, which is an equitable relief or remedy cannot be granted in respect of a completed act. See Att.-Gen. Anambra State & 4 Ors V. Okafor & 5 Ors. 1992 2 NWLR 224-396. I agree with the very sound legal argument that declarations constitute complete relief. However, the declaration sought by the 1st and 2nd Respondent; even if granted, without the appropriate injunctive orders to back them, will yield no practical benefit to the 1st and 2nd respondent. Put it bluntly or differently, by the very nature of the declaration sought, even if the Originating Summons were to be heard and determined on the merits the plaintiff, if victorious will take home a judicial victory basket

47

containing only declaration which are actually of no utilitarian benefit or value on them. So why further expend human and monetary resources and time on such a matter

The law is that a Court of law does not and will not dissipate its judicial energy and/or time on an action, which raises issues, which yield no utilizable benefit to the plaintiff. Therefore, this Court will not use its judicial energy and time to grant the reliefs sought by the Appellant as they have no utilitarian benefit now. It is my view that with the holding of the election slated for 28/3/2015, the question of who should be or should have been the candidate of the 1st Respondent (PDP) in that election is no longer relevant.

The Appellant argued that the position of the Court below is contrary to all known decisions of this Court – Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197, Odedo v. INEC (2008) 17 NWLR (pt. 1117) 544; that the said Section 87(9) does not set a time frame within which an action once commenced before the election must be concluded and neither does the cause of action abate after holding of the election, declaration of results or swearing in of the winner of the

48

election; and that the right to seek redress in pre-election disputes subsists beyond the conclusion of an election and inauguration of the winner.

Furthermore, that pre-election disputes fall within the matters that can be appealed against to the Court below end even this Court pursuant to right of appeal guaranteed by Section 240 and 241 {a) of the Constitution -Eligwe V. Okpobiri (2015) 2 NWLR (Pt. 1443) 348, Nobis-Elendu v. INEC (supra), Odedo V. INEC (supra), Gwede V. INEC (supra), Gbileve V, Addingi (supra)and Jev V. lyortyom(supra).

On its part, the first Respondent referred to the eight Reliefs sought by the Appellant and made the following observations; that –

– Reliefs 1-3 are merely declaratory, and if granted, would not conferred any material benefit on the Appellant as these Reliefs would not have made him the first Respondents candidate in the Election.

-Reliefs 4 was targeted at stopping fourth Respondent from participating in Election of 28/3/2015. The Court’s Ruling was given on 10/7/2015, after the Election had been conducted and he was declared elected.

-Reliefs 5-6 are injunctive Reliefs targeted at the

49

Election of 28/3/2015. It is trite law that injunctions are not granted for completed acts.

– Reliefs 7-8 were targeted at making the Appellant the candidate for the Election of 28/3/2015, and could not have been granted in view of Section 31(1) of the Electoral Act, which makes it mandatory for Parties to forward to INEC, the list of their candidates sixty days before Election.

It argued that when the trial Court delivered its Ruling on 10/7/2015 it could not have granted Reliefs that Appellant tied to 28/3/2015, even if he established a good case; that the Appellant could not have been declared the winner, as his name was not forwarded to INEC; and that it is trite law that a Court of law will not dissipate energy on entertaining a case that is purely academic – Nwora V. Nwabueze (2012) All FWLR (Pt. 613) 1824, Oke V. Mimiko (2013) All FWLR (Pt. 693)1853 and Ogboru V. Udueghan (2011) 12 SCNJ 209 at 235.

The fourth Respondent argued that the decision of the Court below is not based on the fact that the pre-election case cannot be maintained after the holding of election, as argued by the Appellant, rather the Court below found that

50

Reliefs as claimed were academic; that where reliefs sought by the Plaintiff can no longer be granted, such a case, although maintainable, is rendered academic; and that injunctive reliefs cannot be granted in respect of a completed act-Ugwu V. PDP (supra), Adepoju V. Yinka & Ors (2012) LPELR-7847, John Holt Nig. Ltd, & Anor v. H.A.W.U.N. & C. (1993) 2 SCNLR 383.

The Appellant countered that under the doctrine of lis pendens, Parties ought not to do anything to render the judgment nugatory, and a Court would not later lose its jurisdiction because a Defendant in some vantage position and in disregard of the outcome of the pending suit goes ahead to do that, which is sought to be prevented and that an unlawful act cannot metamorphose into a lawful one by a Defendant’s plea that the act has been completed – Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489, Odedo V . INEC (supra)

Furthermore, that he commenced this action before the said Election and being a pre-election matter, his Suit cannot be academic – Odedo V. INEC (supra); that on the authority of Amaechi v INEC, it is the Political party that wins the election not individual

51

candidate, and since he was the person that ought to be nominated, it is logical and legal that he should step into the shoes of fourth Respondent – Odedo V. INEC (supra), Eligwe v. Okpobiri (supra).

Now, the issue is whether the Court below was right that since the election of 28/3/16 had been held and the winner declared, the pre-election matter has become academic; but there is nothing outstanding or controversial about this issue, which is well-settled – See Eligwe v. Okpobiri (supra), wherein Okoro, JSC, observed that –

There is no controversy that pre-election matters which are filed in the High Court before the holding of the Election can be heard up to the Supreme Court notwithstanding the holding of the election and declaration of results – – Even where the winner of the election has been sworn into office that does not make the pre-election matter to abate or become an academic exercise. Section 87(9) of the Electoral Act, 2010 (as amended) provides a widow of opportunity for aggrieved persons who participated in the primary election of parties to ventilate their grievances before the Federal High Court, High Court of a State or of

52

the Federal Capital Territory. I agree with the learned Counsel for the 1st Respondent that matters arising from Section 87(9) of the Electoral Act 2010 (as amended) fall within matters which can be appealed against to the Court of Appeal and even to this Court. See Sections 240 and 241 (a) of the 1999 Constitution (as amended). Thus, an appeal against a pre-election matter is constitutionally endowed. An appellant in the circumstance of the 1st Respondent should not be denied this right. In view of this, no Court of law has the jurisdiction to take away from or deny an Appellant his Constitutional right to appeal.

The position is that if a candidate files his action before the election, the Federal High Court would have jurisdiction to continue with the hearing up to finality; but if the pre-election matter is filed after the election has taken place complaining about conduct of the primaries, such an action can only be heard by an Election Tribunal Wambai V. Donatus (supra). In this case, the Appellant’s action pre-dates the said election, and contrary to the views of the Court below, his right to seek redress in Court subsists beyond the

53

wrap up of the election.

This Court also addressed the issue of a completed act and pre-election matter in Odedo V. INEC (supra). In that case, the Appellant filed an Application for judicial Review of the Respondents action in relation to the substitution of his name after he won the primaries, and he also sought a number of declaratory and injunctive reliefs.

The trial Court dismissed his claim. On Appeal, the Court below suo motu raised the issue of whether the Appeal was still competent since the election had taken place. By a majority decision, the Court of Appeal struck out the Appeal, and he then appealed to this Court, which unanimously allowed the Appeal. Tabai, JSC, stated therein –

Despite the pendency of this action, 1st and 2nd Respondents went ahead to use the name of Obinna Chidaka, whose substitution is being challenged in this action for the Elections. The majority opinion of the Court below reasoned that the elections having been conducted and completed, the Suit becomes spent; that there are no longer any live issues for determination by the Court and, therefore, that the Suit has become merely

54

academic— The issue of whether the hearing and determination of the case was a mere academic exercise never arose until the conduct of the Elections. Despite the pendency of the suit, the 1st and 2nd Respondents persisted with the substitution — They now plead the very fact of the election, contend, as the Court below did, that the Suit has, by reason thereof, become merely academic. I am not persuaded by that argument and I do not agree with the position taken by the Court below—- It is the Court and only the Court that has the authority to determine rights and obligations of the parties. The Respondents cannot be doing what is sought to be prevented, turn around to plead that the action has become merely academic. That would amount to their determination of the rights and obligations of the Appellants. That cannot be. A genuinely aggrieved person, who approaches the Court for redress must be accorded the redress if he establishes his right thereto at the trial. Otherwise, there can be breakdown of public order with the possibility of the aggrieved opting for vengeance by violent selfhelp. That can be dangerous.

See also Adeogun V.

55

Fashogbon (2008) 11 NWLR (Pt. 1115) 149 SC, wherein the same Tabai, JSC, observed as follows on the same issue

A Court, which has jurisdiction to entertain an action, would not subsequently lose that jurisdiction simply because a Defendant, in some vantage position and in complete disregard for the outcome of a pending Suit, goes ahead to do that, which is sought to be prevented in the Suit. Put in another way, a Defendant in a cause has no legal authority to determine the outcome of the claim against him by purporting to complete the very act sought to be prohibited in the suit. That would amount to the Courts abdication of its constitutional and sacred duty of dispensing justice in disputes between persons or between Government or other authorities. It will send a dangerous signal to a genuinely aggrieved plaintiff that he cannot obtain redress for a wrong committed by a Defendant in some vantage position. If the argument so forcefully advocated – – is accepted, then a Defendant in a matter for title of land who during the pendency of the suit rushes to complete a building thereon acquires good title and can- – proceed to ask the case to

56

be struck out for incompetence or that the matter has, by the very fact of the completion of the building become merely academic. I am not persuaded by that argument. Appellants cannot by persevering in the very substitution, which is being challenged, fetter the jurisdiction of the Court to make its final pronouncement on the issue presented to it for adjudication. The corollary of this is that an unlawful act, which illegality is being pursued in a judicial proceeding, cannot metamorphose into a legitimate one by a plea of the Defendant that the act has been completed. After all, it is a settled principle of law that a party committing an illegality cannot be allowed to benefit from the self-same illegality, lest the Court will portray itself as an instrument of injustice- – – In my view, once a person, who is aggrieved or injured by the action of another comes to Court to seek redress, the Court must jealously guard its jurisdiction to hear and determine the case to its finality. It cannot surrender and subject its jurisdiction to the dictates and manipulation of the Defendant.

In the case, the primary election was conducted on 11/12/2014 and the

57

Appellant filed his action on 18/12/2014. The third Respondent withdrew as first Respondents while the action was pending.

The Appellant’s case was that the third Respondent, who was a Former Acting Governor of Taraba State, was not one of the aspirants for the Senatorial Seat; however, the first Respondent started moves to make third Respondent its Senatorial Candidate immediately after this Court, on 21/11/2014, removed him as the said Acting Governor.

The Appellant further averred in paragraphs 30 – 32 of his Affidavit –

30. That the 1st Defendant in its counter-Affidavit filed on 6/3/2015 in opposition to my Originating Summons stated that the 3rd Defendant had by his letter and Notice of Withdrawal form CF 004 both dated 30/12/2014 had withdrawn as the Senatorial Candidate for Taraba North Senatorial District. (copies attached as Exhibit M1-M2)
31. The said Affidavit also revealed that the 1st Defendant had substituted the name of the 3rd Defendant with that of the 4th Defendant as the Senatorial candidate for Taraba North Senatorial District.
32. That I also know as a fact that the 4th Respondent, who is now the current Acting Governor of Taraba

58

State, was never one of the aspirants for the Senatorial seat of Taraba North Senatorial District under the platform of the 1st Defendant because during the screening and primary election for the Taraba North Senatorial District, he was pre-occupied at the Supreme Court fighting his impeachment as Deputy Governor of Taraba State.

These facts, as averred to by the Appellant, remained unchallenged and uncontradicted, and as he rightly submitted, the depositions are deemed admitted Ejide V. Ogunyemi (1990) 3 NWLR (Pt. 141) 758.

What did this Court declare in Adeogun V. Fashogbon (supra) It said – a Court with jurisdiction, would not subsequently lose that jurisdiction just because a Defendant, in some vantage position and in complete disregard for the outcome of a pending Suit, goes ahead to do exactly what is sought to be prevented in the Suit. Obviously, this decision speaks volume, and targets this case with guns blazing.

The Appellant satisfied conditions and fulfilled all requirements for participating in the first Respondent’s primaries for a Senate Seat. But, apparently, the first Respondent had better candidates in mind.

59

So it brings in the “former Acting Governor” of the State, who did not do any such thing – satisfy conditions and fulfill all the requirements, and after he had won the primaries, it submitted his name to INEC.

The Appellant complained then filed an action challenging the eligibility of the third Respondent to participate at the said primaries. While the matter is pending in Court, the third Respondent withdrew his candidature, and the first Respondent did the same thing again – this time it brought in the “current Acting Governor” to replace the third Respondent in total disregard for the action pending in Court; that is the action questioning the conduct of the said primaries that produced the third Respondent as its candidate in the first place and it thereby, took it upon itself to determine the Appellant’s rights and obligations with regard to his complaint against the said primaries.

This brings to mind the Latin maxim – ‘Ubi jus, ibi remedium’ where there is a right, there is a remedy. The law ensures that if the Plaintiff has a right he must have the means to vindicate that right, and a remedy, if he is injured in the

60

enjoyment or exercise of it see Bello V. A-G Oyo State (1986) 5 NWLR (pt. 45) 828 SC. In this case, the Appellant had the right to participate in a level playing field with other aspirants at the primaries, and if he was wronged in any way, he is entitled to a remedy, and nothing can stop him from getting it.

Issues 4 is whether the Court below is right that the trial Court, having found it had no jurisdiction, did not need to proceed further to determine the substantive Suit. The Appellant’s contention is that having regard to the procedure of Originating Summons, the Court below erred in not pronouncing on the substantive Suit on its merit,and its failure to do so occasioned a miscarriage of justice to him.

He also argued that the pre-occupation and duty of this Court is to ensure that justice is done, which is why the Supreme Court Act empowers it to have jurisdiction over the whole proceedings as if it has been instituted in this Court as a Court of first instance to rehear the case. Obi V. INEC (2007) 11 NWLR (PT. 1046) 656; that the only way out is for this Court to invoke its power as provided by the said Section 22 where the matter is justiciable as in this case – N.D.C. Ltd V. Adamawa State Water

61

Board (2008) 34 NSCOR (PT 1) 259-260; and that in doing so, this Court should consider the following facts-

-The Appellant’s action is a pre-election matter;

-The matter was commenced by way of originating summons supported by Affidavit evidence.

-Parties have canvassed argument in respect of the substantive Suit.

-The Court below had the opportunity by virtue of Section 16 of the Court of Appeal Act to determine substantive suit but it failed to do so.

-All the materials, including legal argument and submissions by parties for the determination of the substantive suit are before this Court.

-The need for expeditious disposal of this suit to meet the end of justice.

-lf the appeal is allowed, the injustice or hardship that will follow if an order of remittance to the Court below for rehearing is made.

The first Respondent, however, argued that once a Court concludes that it has no jurisdiction, the proper thing to do is to put an end to the proceedings as a decision reached without jurisdiction is a waste of time, and a nullity; and that this Court will only exercise its power under the said Section 22, if all the

62

conditions are fulfilled, however, if the Court finds that the trial Court had no jurisdiction or that Appellant’s case not justiciable, then the issue will not even arise.

The fourth Respondent also argued that if the trial Court had no jurisdiction, it was not bound to determine the substantive Suit.

As to invoking the powers of this Court under Section 22 of the Supreme Court Act, he submitted that the proceedings were hostile, for instance, the Appellant, who claimed to have scored the second highest votes at the primary election in Paragraph 26 of his Affidavit, pleaded a different result with different scores from the score on the result sheet of the said primaries conducted by the first Respondent.

The Appellant countered in his Reply Briefs that first and fourth Respondents knew of the result of the said primaries as compiled by the first Respondent’s Panel Report, which shows that he polled the second highest number of votes during the said primary election, yet both the first and fourth Respondents choose to mislead this Court.

He referred to his Further Affidavit and the first Respondents Electoral Panel Report, and

63

submitted that they were filed in Court after the first Respondent had filed and served its Counter-Affidavit, but both Respondents did not furnish the Court with further facts.

The answer to the question posed by Issue 4 is quite simple – this is a pre-election matter, which from the current trend of events, was likely to go beyond the trial Court to the two appellate Courts, and so, the trial Court ought to have addressed the substantive Suit.

More so, in an action brought by way of Originating summons’ as in this case, where the evidence required in determining the merit of the Suit is in the form of Affidavit evidence already filed in Court – Inakoju V. Adeleke (supra). This is so that in the event of an appeal, it is easy for an appellate Court to express its view on the decision of the lower Court on jurisdiction and the merit of the substantive suit; and avoid a situation, as in this case, where this Court must invoke its powers under Section 22 of the Supreme Court Act to re-hear same.

To this end, I will simply say that from all that I have said so far, and with the issues resolved in favour of the Appellant, this Appeal is

64

allowed and the decision of the Court below is, therefore set aside.

In the circumstances of this case, it will amount to additional miscarriage of justice to remit this case to the trial Court for hearing and determination of the substantive Suit- a pre-election matter.

Taking into consideration that fact that the evidence required to determine the said substantive Suit is contained in the Affidavit evidence on Record, as well as the arguments/submissions of Parties, it is my view that this is a proper case in which to invoke the powers of this Court under Section 22 of the Supreme Act to determine the substantive Suit as if this Court is sitting as a Court of first instance.

I have already determined that third Respondent’s nomination as the candidate of the first Respondent was invalid, null and void; and that his substitution with the fourth Respondent is null and void. I have also gone through the Affidavit evidence and Report titled “Report of the Gubernatorial, Senatorial, House of Representatives and State House of Assembly of Taraba State”, attached to Plaintiff’s Further and Better Affidavit in support of the Originating

65

Summons, as Exhibit J, which none of the Respondents has denied or disputed, and I am satisfied that Appellant scored the second highest number of votes at the said primary election conducted by first Respondent.

Even if the matter is sent back to the trial Court for rehearing, the time to comply with the requirements of nominating candidates for the election has long gone past, therefore, following the decision of this Court in Hon. James Abiodun Falake V. INEC & Bello (supra), the only option is to make a consequential order that the Appellant, who had scored the second highest number of votes in the primaries, was the candidate of the first Respondent at the general election.

This is a hard and very bitter lesson for Political Parties to learn; they may have chosen candidates or eminent personalities they want to present as candidates to INEC, but they have to play by the rules The chosen candidates must comply with requirements of the law; they must abide by the provisions of the Electoral Act, which creates a level playing field for all aspirants, who seek to contest elections.

So, the Political Parties, and their candidates, must obey

66

the Rules.

In the circumstances of this particular case, Judgment is hereby entered in favour of the Appellant, and I hereby Order as follows –

1.That the Appellant – lsah Shuaibu Lau is entitled to be issued with a Certificate of Return as Senator representing the Taraba North Senatorial District of Taraba State in National Assembly,

2.That the Second Respondent (INEC) is hereby ordered to issue the Certificate of Return to lsah Shuaibu Lau as the Senator representing Taraba North Senatorial District of Taraba State.

3.That the fourth Respondent – Alhaji Sani Abubakar Danladi is hereby ordered to vacate the Seat of the Senator representing the said Taraba North Senatorial District of Taraba State.

4. It is also ordered that Alhaji Sani Abubakar Danladi shall within ninety days from today refund to the National Assembly all National Assembly all monies he collected by way of salary/allowances, whatsoever and however described since he took the Seat as the Senator representing Taraba North Senatorial District of Taraba State.

Each party is to bear their own costs.

---

SC.583/2016