Admiral Murtala Nyako (Rtd) V. Dr. Umar Ardo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This is a Cross-Appeal against parts of the decisions in the Ruling of the Federal High Court Yola dated 13th January, 2012 but delivered by His Lordship S. M. Shauibu, J. on the 20th day of January, 2012 in suit No:FH/YL/CS/50/2011, whereby he struck out the 1st Cross-Respondent’s suit challenging the primary election and nomination of the Cross-Appellant as the Candidate of the 2nd Cross-Respondent for the 2012 Gubernatorial Election in Adamawa State; on grounds of non-compliance with the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the Electoral Act, 2010 (as amended); the 2nd Cross-Respondent’s Constitution and Guidelines for Primary Elections of the 2nd Cross-Respondent.

The 1st Cross-Respondent had sought for declaratory and injunctive Reliefs as encapsulated in his Statement of Claim on the Grounds articulated in Paragraph 47 thereof and upon being served and as earlier stated in the main Appeal, the Cross-Appellant filed a Notice of Preliminary Objection to the competence of the suit and against the jurisdiction of the lower Court to entertain same amongst other grounds. See page 3 of the Cross Appellant’s Brief particularly paragraph 1.05 and 1.06 where the issues formulated as arising from the preliminary objection and for determination of the lower court are reproduced.

At the hearing of the preliminary objection, the learned Counsel for the respective parties adopted their written Addresses and the learned trial Judge ruled on the 20th day of January, 2012, dismissing the Appellant/1st Cross-Respondent’s suit on the grounds that the complaints of the 1st Cross-Respondent were not on the conduct of the party primaries but were on matters that occurred before the conduct of the said primaries and as such the complaints were not such as envisaged by the provisions of Section 87(9) and (10) of the Electoral Act, 2010.

The first grouse of the Cross-Appellant herein is that in spite of the fact that the Court below had rightly held as above, the learned trial Judge nevertheless overruled the Cross-Appellant on the contention of the Cross-Appellant that the 1st Cross-Respondent’s complaints fell within the domestic and internal affairs of the 2nd Cross-Respondent (the Peoples Democratic Party). Secondly, the other grouse of the Cross-Appellant is that the 1st Cross-Respondent, did not first of all appeal to the 2nd Respondent’s Gubernatorial Electoral Appeal panel as required by Article 22(g) – (h) of the Electoral Guidelines of the 2nd Cross-Respondent which he reproduced at page 4 of the Cross-Appellant’s Brief of Argument and which copy of the Guidelines he had Exhibited as Exhibit PDP1 to the Affidavit in support of the 2nd Cross-Respondent’s Notice of Preliminary Objection as can be found at pages 409 – 442 of the Record of Appeal.

Against this second aspect of the Cross-Appellant’s objection, the Court ruled at page 849 of the Records as to whether the condition precedent for the exercise of the Court’s jurisdiction had been fulfilled since the 1st Cross-Respondent had not submitted his grievances to the said Appeal panel; that the condition precedent had been so fulfilled. Dissatisfied with the position taken by the learned trial Judge, the Cross-Appellant filed his Notice of Appeal dated 2nd March, 2012, on the same day through his learned Senior Counsel K. G. Agabi (CON), SAN. The Notice of Appeal with two Grounds is contained in pages 875 and 876 of the Record of proceedings. Upon transmission of the Records hereto, parties exchanged their respective Briefs of Argument and in the Brief settled by Ayo Akam, Esq. for the Appellant, two Issues have been raised as falling for determination couched in the following terms:-

“1. Whether the Court below was not in error when it held that the complaints of the 1st Cross Respondent do not fall within the domestic or internal affairs of the 2nd Cross-Respondent (Ground 2).

“2. Whether lodging complaints or grievances to 2nd Cross-Respondent’s Gubernatorial Electoral Appeal Panel was not a condition precedent for seeking redress in Court and if it was whether the Court below was not in error when it held that the 1st Cross-Respondent had no obligation to lodge his complaints or grievances to the Gubernatorial Electoral Panel of the 2nd Cross Respondent (Ground 1)”.

On his part, the learned Senior Counsel for the 1st Cross Respondent Sylvester Imhanobe, Esq. in the 1st Cross-Respondent’s Brief adopted the issues formulated by the learned Counsel for the Cross- Appellant.

ARGUMENTS OF THE LEARNED COUNSEL ON THE ISSUES FORMULATED.

“1. WHETHER THE COURT BELOW WAS NOT IN ERROR WHEN IT HELD THAT THE COMPLAINTS OF THE 1ST CROSS-RESPONDENT DO NOT FALL WITHIN THE DOMESTIC OR INTERNAL AFFAIRS OF THE 2ND CROSS-RESPONDENT (GROUND 2).”

In his argument on this first issue the learned counsel for the Cross-Appellant drew our attention to the history of intra party contests including the selection and nomination of candidates for public offices prior to the enactment of the Electoral Act, 2010 which were in law purely the domestic affairs of the political party and not for the Court’s to decide. Abdulkadir v. Mamman (2003) NWLR (pt.834) at 30 C.A. per Oyedemi, JCA; Akpan v. Bob (2010) 17 NWLR (pt. 1223) 421 at 501; per Muhammad, JSC; were cited to submit that with the enactment of Section 87(10) of Electoral Act, there is a slight change that the Courts now have the jurisdiction to determine matters relating to breaches of the provisions of the Electoral Act and the Guidelines of political parties for primary elections where the breaches are shown to have been committed in the selection and nomination of a party’s candidates for election.

In the view of learned Counsel for the Cross-Appellant, the provision of Section 87(10) of the Act now draws a distinction between complaints which are still within the domestic and internal affairs of a political party, of which the Courts cannot interfere and complaints which are outside the domestic affairs of a party by virtue of their being acts upon which the jurisdiction of the Court can be invoked. Referring us to the claim of the 1st Respondent in paragraph 47(a-c) of his Statement of claim at page 15 of the Record of Appeal, it was further submitted that the Court in its Ruling found that the above complaints of the 1st Cross-Respondent were on matters not envisaged by the provisions of Section 87(10) and as such the Court lacked jurisdiction to interfere and determine the suit. He cited and reproduced the finding of the court at page 825 of the Records and highlighted each of the heads of the 1st Cross-Respondent’s grouse in the lower Court that necessitated the institution of the suit thereat and which he analysed seriatim and concluded that all of those grievances are not allegations in the conduct of a primary election nor are they allegations that any of the provisions of the Constitution of the 2nd Cross-Respondent and the Guidelines for Primary Election, 2010; had been breached in the course of the conduct of the 2nd Cross-Respondent’s Primary Election.

We were then urged to hold that the Court below was right when it held that the complaints of the Appellant were not matters envisaged by the provisions of Sections 87(9) and (10) but was in error to have held that the matters complained of are not within the domestic and internal affairs of the 2nd Cross-Respondent. This is because matters, for which no jurisdiction is conferred on the Court to adjudicate on, must certainly be matters which the law left exclusively to the political parties and we were further urged to so hold particularly if we take into consideration the decision of the learned trial Judge at pages 824-825 of the Records.