Dr. Abdullahi Baba Abdul V. Congress For Progressive Change & Ors (2013) LLJR-SC

Dr. Abdullahi Baba Abdul V. Congress For Progressive Change & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the Judgment of the Court of Appeal, Abuja Division, dated the 28th June 2012 affirming the Judgment of the Federal High Court Lokoja, delivered on the 5th day of December 2011 dismissing the claim of the Appellant herein.

Being dissatisfied with the said Judgment of the Court of Appeal (the court below) the Appellant has further appealed to this Court by a Notice containing 4 grounds of Appeal dated the 21st day of July 2012 and filed on the 23rd of July, 2012.

Briefly, the relevant background facts of this case are that the Appellant, as Plaintiff in the Federal High Court Abuja Division, by way of originating summons against the Respondents who were the Defendants, filed an action that was later transferred to the Federal High Court Lokoja Division, seeking for the determination of the following questions:

“(1) Whether by the combined provision of Section 87(1) of the Electoral Act 2010 as amended and schedule 1 paragraph 2 (iii) of the constitution of Congress for Progressive Change (CPC) the 4th Defendant is qualified to contest in the party’s primary election for House of Representatives and is entitled to have his name forwarded by the party to the Independent National Electoral Commission, for the purpose of contesting the 2011 National Assembly Election having joined the party on or about the 30th of December, 2010.

(2) Whether by the provisions of Section 87(1) of the Electoral Act 2010 as amended and schedule 1 paragraph 2 (iii) of the constitution of Congress of Progressive Change (CPC) the 1st Defendant can validly allow the nomination of the 4th Defendant to contest the party’s House of Representatives primary election of Lokoja/Kogi Federal Constituency for the purpose of the 2011 National Assembly Election.

(3) Whether by the provisions of Section 87(1) of the Electoral Act 2010 as amended and schedule 1 paragraph 2(iii) of the constitution of Congress of Progressive Change (CPC) the Plaintiff is the only eligible candidate of the party for the party’s House of Representatives primary election held on the 9th of January, 2011.

(4) Whether by provisions of the Electoral Act 2010 as amended and schedule 1 paragraph 2(iii) of the constitution of Congress of Progressive Change (CPC) the 3rd Defendant can accept, recognize and maintain on it records, the name of the 4th Defendant as the 1st Defendant’s candidate for the purpose of contesting the 2011 general election other than the name of the Plaintiff who participated as the only eligible candidate of the party at the party’s primary election for the Lokoja/Kogi Federal Constituency held on the 9th of January, 2011.”

Upon the determination of the above questions, the Appellant sought the following reliefs:

“(1) A DECLARATION that the Plaintiff having participated in the 1st Defendant’s House of Representatives primary election as the only eligible contestant that participated in the said primary election is entitled to have his name forwarded by the 1st Defendant to the Independent National Electoral Commission, as her candidate for the purpose of contesting the 2011 National Assembly Election.

(2) AN ORDER of the Honourable Court declaring null and void the 1st Defendant’s purported submission of the 4th Defendant’s name as her candidate for the purpose of contesting the House of Representatives seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election.

(3) A DECLARATION that the 3rd Defendant’s express and/or implied conduct of accepting and recognizing any other name other than the Plaintiff as the 1st Defendant’s candidate for the purpose of contesting the House of Representatives seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election is null, void and no effect.

(4) AN ORDER of injunction restraining the 1st and 2nd Defendants from recognizing or further recognizing any other person beside the Plaintiff as the candidate of the 1st Defendant for House of Representatives seat for Lokoja/Kogi Federal Constituency in the 2011 National Assembly Election.

(5) AN ORDER of mandatory injunction mandating and/or compelling the 1st Defendant to immediately accept and maintain on its record the name of the Plaintiff as the candidate of the 1st Defendant for the 2011 Lokoja/Kogi Federal Constituency, the Plaintiff, being the only eligible candidate that participated in the 1st Defendant’s House of Representatives primary Election.

(6) AN ORDER of mandatory injunction compelling the 3rd Defendant, its officers, servants and agents to immediately publish the Plaintiffs particulars within Lokoja/Kogi Federal Constituency as the 1st Defendant’s candidate for the 2011 National Assembly Election schedule for April, 2011.”

The Appellant at the trial court filed a 21-paragraph Affidavit in support of the Originating Summons and thereafter 1st, 2nd, 3rd and 4th Further and Better Affidavits in support of the said Originating Summons. Annexed to these Affidavits are Exhibits ABA 1 to ABA 9 respectively.

Contentions of the Appellant, garnered from the above affidavits are essentially that a few days to the 1st Respondent’s (CPC) primary election the 4th Respondent who was a member of the Peoples Democratic Party (PDP) decamped to join the 1st Respondent and thereafter indicated his intention to contest for the House of Representatives Seat for Lokoja/Kogi Federal Constituency under the platform of the 1st Respondent’s Constitution, having joined the party about 9 days or thereabout to the primary Election. According to the appellant this decision of the 4th Respondent did not go down well with him. He protested to the 1st Respondent’s Chairman in Kogi State, to no avail. The 1st and 2nd Respondents conducted the primary election on the 9th January, 2011 with the 4th Respondent and the Appellant as the only contestants for the Lokoja/Kogi Federal Constituency for the April 2011 election. According to the Appellant the 4th Respondent was purportedly declared the winner of the said primary election and his name forwarded to the 3rd Respondent as the 1st Respondent’s candidate for the April National Assembly election, which the 1st Respondent won.

While it is noted that the 2nd and 3rd Respondents did not file any process in the trial court and did not file any brief; the 4th Respondent in his counter-affidavits in opposition to the Originating Summons had averred principally, that the 1st Respondent’s guideline did not make the payment of subscription fees of three months before primary election a requirement for qualification to contest the primary election of 9th January, 2011 and that the 1st Respondent was looking for members and did not collect registration or subscription fees from anybody.

The Appellant has contended that both the trial court and the lower court failed to properly interpret the provisions of Section 1 paragraph 2(iii) of the 1st Respondent’s Constitution, Section 87 of the 1999 Constitution (as amended) and careful consideration of the affidavit evidence before the said two courts below before dismissing the Appellant’s action and appeal respectively.

When the appeal was heard on 12/2/2013, learned counsel on each side of the divide, adopted and relied on briefs of argument earlier filed on behalf of his client.

On behalf of the Appellant, his learned counsel Abdulaziz Ibrahim Esq., distilled two issues for determination in this appeal as follows:

“(1) Whether upon a proper construction of the provision of schedule 1 paragraph 2(iii) of the 1st Respondent’s constitution, vis-a-vis the affidavit evidence before the court, the lower court was right, when it held that payment of subscription fees by the 4th Respondent, three (3) months before election to be eligible to be voted for in the 1st Respondent’s primary election conducted on 9th January, 2011 is not mandatory, that there is an implied waiver of the same in favour of the 4th Respondent to participate in the said primary election and therefore the non-eligibility of the 4th Respondent to be voted for by the provisions of the 1st Respondent’s constitution, rules and practice is not established by the Appellant.

(2) Whether having regard to the clear and unambiguous provision of Section 87(9) of the Electoral Act, 2010 (as amended), which recognizes the right of the Appellant to challenge the breach of the 1st Respondent’s rules and/or guidelines in the nomination or sponsorship of its candidates, the Court of Appeal was right in law to hold that sponsorship is not a right guaranteed to the Appellant under the constitution of the 1st Respondent or the 1999 Constitution, placing reliance on the cases of Onuoha V. Okafor (1987) 2 SCNLR 244 and Senator Yakubu Garba Lado & Ors. V. Congress for Progressive Change (SPC) & 2 ORS (2011) LPELR SC 157/2011 (CON) to arrive at this conclusion.”

On behalf of the 1st and 2nd Respondents, Chief Okoi O. Obono-Obla Esq. distilled two issues that call for determination of the appeal as follows:

“(i) Whether the Court of Appeal was correct when it affirmed the Judgment of the trial Court that the Appellant was unable to prove his case to entitle him to the declarative and injunctive reliefs sought by him

(ii) Whether the Court of Appeal was correct when it affirmed the finding of the trial Federal High Court having regard to the decisions of the Supreme Court in Onuoha V. Okafor (1983) 14 NSCC 494 and Senator Yakubu Garba Lado V. Congress for Progressive Change (2011) LPELR 157 respectively, that a Court of law cannot validly assume jurisdiction in a case to elect or select a candidate for a political party or nominate a candidate for sponsorship in an election, same being the prerogative or internal affairs of such political party”

On behalf of the 3rd Respondent its counsel M.A. Abubakar has adopted the two issues as raised by the Appellant for determination of the Appeal.

On behalf of the 4th Respondent his learned counsel equally adopted the two issues distilled by the Appellant for determination of the appeal.

On 14th day January 2013 Appellant filed a Reply brief but deemed filed on 12th February, 2013 responding to the preliminary objection as well as issues 1 and 2 of the 1st and 2nd Respondent’s main brief of argument. Also on November 2012 a Reply Brief was filed responding directly on some specific points raised in 4th Respondent’s brief of argument.

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On the 5th December, 2012 Learned Counsel for the 1st and 2nd Respondents filed a Notice of Preliminary Objection pursuant to Order 2 Rule 9 of the Rules of this Court. The Notice reads:

“Take Notice that at the hearing of this appeal the 1st and 2nd Respondents shall take objection against the jurisdiction of this Honourable Court to hear and determine Grounds 1, 2 & 3 of the Notice and Grounds of Appeal of the Appellant

The grounds of the objection are hinged on the following:

“i. Grounds 1, 2 and 3 (including their particulars) of the Notice of Appeal are of mixed law and fact which the Appellant requires leave of this Honourable Court, by virtue of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended & altered), to grant;

ii. Grounds 1, 2, 3 & 4 of the Notice of Appeal amounts a challenge of the concurrent findings of facts by the trial Federal High Court and the Court of Appeal respectively which by the provisions of Order 2 Rule 32 of the Supreme Court Rules, 2008 (as amendment) and Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an appeal can lie only with leave of the Supreme Court.

Comprehensive Argument of the Grounds of the Notice of Appeal are contained in paragraphs 2.4 to 3.17 of the 1st and 2nd Respondents’ Brief of Argument. In the event the preliminary objection of the Appellant is overruled by this Court, he has decided to argue the main appeal. The argument is set out on paragraph 4.1 – 5.18 of the Brief of Argument.

Arguing the first Ground of objection, learned counsel for the 1st and 2nd Respondents, has submitted that a cursory reading of Grounds 1, 2 and 3 and their particulars reveals that these Grounds are grounds of mixed law and facts not law alone. It is contended that the law is settled that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law, where, on the other hand, the error of law is founded on disputed facts calling into question the correctness of the acts determined, it is invariably a question of mixed law and facts. This is because in this latter case it is a conclusion of law coupled with the exercise of discretion. Guided by these principles and applying them to the grounds of appeal in this case, learned counsel has urged this Court to hold that each of the grounds of appeal filed and the particulars of error alleged, all question findings of facts, or the manner of the exercise of discretion in the two courts below, relating to the refusal of the grant of leave to appeal. Of what constitutes a ground of law or mixed law and fact(s) learned counsel refers us to judicial decisions on the subject in OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt. 23) 484; (1986) 3 SC. 54. NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 and IFEDIORA V. UME (1988) 2 NWLR (Pt. 74) 5 at 19. Further relying on the dicta of NNAEMEKA-AGU JSC (of Blessed memory) in the case of ATTORNEY-GENERAL KWARA STATE V. RAIMI OLAWALE (1993) 1 NWLR (Pt. 272) 615 at 661 – 662 and NWADIKE V. IBEKWE (supra) learned counsel submitted that in the instant case despite the fact that the Appellant’s Grounds of Appeal and particulars are admixture of law and facts, he did not seek leave of this Court before filing his Notice and Grounds of Appeal.

Ground two of the Notice of Preliminary Objection is that Grounds 1, 2, 3 and 4 of the Notice of Appeal are an attack or challenge on the concurrent findings of facts by both the trial Federal High Court and The Court of Appeal respectively, which by provisions of order 2 Rule 32 of the Supreme Court Rules (2008) (as amended) and Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended) an appeal can lie only with leave of the Supreme Court.

The Appellant herein responded to the preliminary objection of the 1st and 2nd Respondents in the Appellant’s Reply Brief (supra). On the first ground of preliminary objection that Grounds 1, 2 and 3 of the Notice of Appeal are of mixed law and facts, learned counsel for the Appellant, does not think so. He submitted that the important consideration in the determination of the nature of ground of appeal is not the form of the ground, rather it is the question it raises; relying on the cases of FIRST BANK NIGERIA PLC V. ABRAHAM (2009) All FWLR (Pt. 461) 863 and FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LIMITED (2010) All FWLR (Pt. 537) 633 at 667.

It is for the above yardstick for the classification of a ground of appeal learned counsel reproduced the three grounds and their particulars one after the other and concluded that the three grounds of appeal are purely grounds of law by the nature of the question and/or complaint contained therein. It is submitted that interpretation of document, terms of art, or words and inference drawn therefrom are grounds of law. Reliance was placed on the cases of YARO V. AREWA CONSTRUCTION LTD. (2008) ALL FWLR (Pt. 400) 603; and B.A.S.F. (NIG) LTD. v. FAITH ENT. LTD. (2010) ALL FWLR (Pt.518) 840 SC.

On the second ground of Preliminary Objection that Grounds 1, 2, 3 and 4 of the Notice of Appeal being a challenge of the concurrent findings of facts by both lower courts an appeal can only lie with leave of the Supreme Court, learned counsel for the Appellant has submitted that Section 233(3) of the 1999 Constitution and Order 2 Rule 32 of the Supreme Court Rules (supra) are only applicable in cases where the grounds of appeal are against finding of fact of court of first instance which has been affirmed by the court below. Learned Counsel has contended that grounds 1, 2, 3 and 4 of the Notice of Appeal are clearly grounds of law and therefore are not covered by the two provisions above (supra). It is submitted that these provisions relate to cases where the appeal to the Supreme Court from the decisions of the Court of Appeal must be by leave of court; in other words, cases that do not fall within Section 233(2) of the 1999 Constitution.

Learned counsel has further submitted that there can be no concurrent findings of facts in relation to ground 1 of the Notice of Appeal as shown by the 1st and 2nd Respondents under paragraphs 3.3 and 3.4 of their brief of Argument. That while the trial court interpreted the provisions of Article 17 of the 1st Respondent’s Constitution relying on the evidence of the Chairman of Kogi State Chapter of the 1st Respondent, the Court below, on the other hand interpreted the provision of schedule 1 paragraph 2(iii) of the 1st Respondent’s Constitution, relying on the evidence of the 4th Respondent himself as contained in paragraph 21 of the counter affidavit. These findings, according to the Appellant do not translate to concurrent findings of fact.

The foregoing is the summary of the objections and submissions of Learned Counsel for the 1st and 2nd Respondents and that of the Appellant herein. The success of the Preliminary Objection to the hearing of an appeal is usually regarded as “a preemptive step” which has the effect of bringing the litigation to an end. On the other hand if the objection is dismissed the appeal will be determined on the merit.

If I may recap the two grounds of the 1st and 2nd Respondent’s preliminary objection are that grounds 1, 2 and 3 of the Notice of Appeal are of mixed law and fact and that Grounds 1, 2, 3 and 4 of the Notice of Appeal amount to a challenge of the concurrent findings of facts by the trial court and the lower court respectively, which the Appellant requires leave of this Court.

Against the above background it becomes imperative to carry out a thorough examination of the Appellant’s Grounds of Appeal and their Particulars in order to determine whether they are grounds of law, fact or mixed Law and facts respectively. The grounds of appeal attacked, are reproduced with their particulars as follows:

GROUND ONE:

The learned Justices of the Court of Appeal erred in law when they held as follows:

“Paragraph 21 of the 4th Respondent unchallenged averment is that the 1st Respondent’s guideline did not make the payment of subscription fees of three months before primary election a requirement for qualification to contest the primary election of 09/01/2011. The inference is that it was not mandatory to pay subscription fee.”

PARTICULARS:

(i) The averment of the 4th Respondent that the 1st Respondent’s guideline did not make payment of subscription fees of three months before primary election a requirement for qualification to contest the primary election of 09/01/2011 is not borne by and/or contrary to the clear provisions of schedule 1 paragraph 2(iii) of the 1st Respondent’s constitution.

(ii) The Appellant by his 1st and 2nd further affidavits sworn to at the Federal High Court Registry, Lokoja on 14th April, 2011 and 5th May, 2011 respectively, challenged categorically, paragraph 21 of the 4tn Respondent’s counter affidavit.

(iii) By Article 2 of the 1st Respondent’s constitution, the provisions of the constitution is superior and supersedes any other purported rules, or regulations expressly or impliedly made or countenanced by the 1st Respondent.

(iv) The deposition of the Appellant that he had paid his own subscriptions fees and a financially up to date member of the 1st Respondent has not been controverted.

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(v) The inference drawn by the lower court does not flow from any provisions of the 1st Respondent’s constitution and it is not supported by any law or facts.

GROUND TWO:

The learned Justices of the Court of Appeal erred in law, when they held thus:

“It is obvious from the averments in the affidavits and counter affidavits that the 1st Respondent prescribed rules in their constitution which they unilaterally can waive when it suits their purpose. Schedule 1 paragraph 2(iii) requires that members contesting the primaries should pay their subscription 3 months before primaries to be eligible to be voted for. It must be borne in mind that the 1st Respondent cleared the 4th Respondent to participate in the primary election, therefore there is an implied waiver granted to the 4th Respondent by the 1st Respondent to contest in the party primaries by such conduct”

PARTICULARS:

(i) There is no iota of affidavit evidence before the two Lower Courts that the 1st Respondent enjoyed the luxury to unilaterally waive any of the provisions of its constitution when it suits its whims and caprices.

(ii) Neither the 1st Respondent nor the 4th Respondent had averred that the mandatory provision of schedule 1, paragraph 2(999) which requires members contesting election to pay their subscription fees three months before primaries to be eligible to be voted for was at any time material to the election waived.

(iii) The findings of the lower court regarding the implied waiver of the provision of schedule 1; paragraph 2(iii) of the 1st Respondent’s constitution is based on mere conjecture or speculation.

(iv) The purported clearance of the 4th Respondent by the 1st Respondent to participate in the primary election despite the obvious ineligibility of the 4th Respondent, the same of which was also well known to the 3rd Respondent, was in error and run foul of the 1st Respondent’s constitution.

(v) The affidavit evidence of the alleged Gegu North Ward chairman of the 1st Respondent is manifestly unreliable in the face of the overwhelming entire affidavit evidence in support of the originating summons.

(vi) By the constitution of the 1st Respondent, membership and active participation in the activities of the 1st Respondent, including election to any elective office is upon payment of prescribed membership and/or subscription fees.

(vii) By the constitution of the 1st Respondent, the National Executive Committee of the Respondent is responsible for the nationwide administration of the 1st Respondent and therefore the only organ with powers to have passed any resolution dispensing with payment of membership and/or subscription fees by prospective members of 1st Respondent and not any ward chairman of the 1st Respondent.

(viii) The Respondents never produced any document or adduced any evidence of any resolution passed, or any decision taken by any organ of the 1st Respondent at any forum waiving payment of membership and/or subscription fees in favour of new entrants into the Party.

GROUND THREE:

The learned Justices of the Court of Appeal erred in law, when they held inter alia:

“The claim the 4th Respondent was not eligible by party guidelines for 2011 to be voted for was not established by the Appellant as rightly found by the Court below All members of the 1st Respondent are bound by the provisions of their constitution, rules and practice. I have no reason to interfere with the findings and decision of the court below which is in line with the provision in the constitution of the 1st Respondent”.

PARTICULARS:

(i) The findings and decisions of the court and indeed, the Court of Appeal is irreconcilable in conflict with the provision of the constitution of the 1st Respondent.

(ii) From the affidavit evidence placed before the Court, the Appellant had clearly established that the 4th Respondent by the 1st Respondent’s constitution and rules was not eligible at the time of the 1st Respondent’s primary election to contest the election for the House of Representative.

(iii) The Lower Court having held that all members of the 1st Respondent are bound by the provisions of their constitution, should not have shut its eyes to the brazen abuse and breach of the said constitution by the Respondents.

GROUND FOUR:

The learned Justice of the Court of Appeal erred in law by holding that sponsorship is not a right guaranteed to Appellant under the constitution of the 1st Respondent or the 1999 Constitution, relying on the authorities of ONUOHA V. OKAFOR (1987) 2 SC NLR 244 and SENATOR YAKUBU GARBA LADO & ORS. V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS. (2011) LPELR SC.157/2011 (CON).

PARTICULARS:

(i) The facts and circumstances of ONUOHA and LADO’s cases are clearly different from the facts of the appellant’s case herein and therefore not applicable to the Appellant’s case.

(ii) By the doctrine and/or rules of stare decisis, courts are enjoined not to apply ratio of a case across board with little or no regard to the facts of the case before them.

(iii) The right of the 1st Respondent to nominate or sponsor a candidate for an election is guided by its constitution and rules.

(iv) The courts have the powers pursuant to Section 87(9) of the Electoral Act, 2010 to determine whether the 1st Respondent complied with its constitution and rules in the sponsorship or nomination of the 4th Respondent to contest the primary election of the 1st Respondent.

(v) The 1st Respondent is a creature of the constitution and its constitution is registered pursuant to Section 222 of the constitution of the Federal Republic of Nigeria. The provisions of the constitution of the 1st Respondent therefore possesses constitutional flavor and must be accorded constitutional dignity. The court must not allow the 1st Respondent to act arbitrarily or as it likes. The 1st Respondent must obey its own constitution.

(vi) The nomination and/or sponsorship of the 4th Respondent by the 1st Respondent was not in accordance with the Electoral Act, the Constitution and Guidelines of the 1st Respondent.

(vii) The constitution of Nigeria does vest this court with powers under Section 6(6)(b). The power there under “shall extend, to all matters between persons, or between government or authority and to any person in Nigeria; and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

This Court, as an Apex Court, in a number of cases has set out some criteria for distinguishing between questions or grounds of law from grounds of facts and mixed law and facts in the process of appeal in this Court. Some of these principles can be summarized as follows:

(1) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.

(2) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.

(3) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact.

(4) A ground which raises a question of pure fact is a ground of fact.

(5) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.

(6) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.

(7) Where the lower court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.

(8) Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.

(9) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.

(10) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law.

(11) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.

(12) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.

(13) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).”

See also the following cases in which the perimeters for deciding whether a ground of appeal raises questions of law alone or of facts or mixed law and fact BOARD OF CUSTOMS AND EXCISE V. BARAU (1982) 10 SC. OGBECHIE V. ONOCHIE (1986) 3 SC where this Court dealt with the provisions of S. 213 (3) and 214 (3) of the 1979 Constitution, which is in pari materia with the provision of Sections 233 (3) and 232 (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria. See further the cases of ABIDOYE V. ALAWODE (2001) 3 SC. 1 and OFORKIRE V. MADUIKE (2003) 1 SC.

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I have placed grounds 1, 2 and 3 of the Grounds appeal challenged by the 1st and 2nd Respondents side by side. I have applied the principles set out elaborately above and as decided in those cases. The inevitable conclusion I have reached is that these Grounds, together with their particulars are caught by Section 233(3) of the 1999 Constitution. This is easily explained in the following manner:

Ground ONE of the Ground of appeal together with particulars (1) (ii) (iii) and (iv) that question correctness of the decision of the court below that the 1st Respondent’s guidelines did not make the payment of subscription fees of three months before primary election a requirement for qualification to contest the primary election of 9/1/2011. The deposition of the Appellant (contending) that he had paid his subscription fees and is financially up to date member of the 1st Respondent is invariably a question of mixed law and facts. GROUND TWO of the Ground of appeal together with particulars (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) question the findings of the court below regarding implied waiver of the provision of schedule 1, paragraph 2(ii) of the 1st Respondent’s Constitution. The Appellant’s complaint is that there is no iota of affidavit evidence before the two lower courts that the 1st Respondent enjoyed the luxury to unilaterally waive any of its provisions of it Constitution when it suits its whims and caprices. Again the grounds and the particulars question findings of facts or the manner of exercise of discretion in the two lower courts, relating to the refusal of the grant of leave to appeal. The ground is that of fact.

GROUND THREE of the Grounds of appeal with their particulars (i) and (ii) question the findings and decisions of both lower courts when they found that it was not established that 4th Respondent was not eligible by party guidelines for 2011 to be voted for. This is a complaint about the assessment of affidavit evidence placed before the court. The ground, in my opinion, is that of fact.

In the light of the above analysis, it can be seen that the three grounds of appeal are at best mixed law and facts and worst grounds of facts which require leave of the Court of Appeal or this Court before lodgment of the Notice of Appeal, or challenging concurrent findings of the two courts below. In this light, grounds 1, 2 and 3 of the Notice of Appeal which are grounds of mixed law and facts are incompetent having been raised without leave of court as required by Section 233(3) of the 1999 Constitution (as amended). The said grounds are accordingly struck out.

Now to the second Ground of the Notice of preliminary objection. It is that Grounds 1, 2, 3 and 4 of the Notice of Appeal amount to a challenge of the concurrent findings of facts by the trial Federal High Court and the Court of Appeal respectively, which by the provisions of Order 2 Rules 32 of the Supreme Court Rules, 2008 (as amended) and Section 233(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) an appeal can lie only with leave of the Supreme Court.

Order 2 Rule 32 of the Supreme Court Rules (supra) provides:

“Where, in an appeal to the Court from the court below, the court below has affirmed the findings of fact of the court of first instance, any application to the court in pursuance of its jurisdiction under Section 233(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.”

The above provisions and Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) to my mind, are clear and unambiguous. I have said, and the law is trite that where an appeal lies as a right leave of Courts is not required. The position was succinctly elucidated by the Supreme Court in ABUBAKAR V. WAZIRI (2008) All FWLR (Pt 436) 2025 at 2037 where this Court stated thus:

“It is basic Constitutional principle that where grounds of appeal are of mixed law and facts or facts alone, it is imperative that leave of Court must first be sought and obtained… However an appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right where the grounds of appeal involves question of law alone in any civil or criminal proceedings. Section 233 (2) of the aforesaid Constitution, applied”

However, there is a paucity of decision of this Court on the provisions of Order 2 Rule 32 of the Supreme Court (supra). I stumbled across one case in my wild research, on whether there is conflict between Section 233 (3) of the 1999 Constitution and Order 2 Rule 32 (supra). In JIMOH V. AKANDE (2009) 5 NWLR (Pt 1135) 549, my learned brother CHUKWUMAH-ENEH JSC held as follows:

“The Court in OJOMEN V. MOMODU II and Ors. (1983) 14 NSCC 135 has put it beyond per adventure that Leave is a condition precedent to appealing under Section 233 (3) of the Constitution. As far as leave to appeal to the Court is concerned the general power of the Court to entertain it is as per the Constitutional provision as contained in Section 233 (3). This power cannot be superseded, whittled down or otherwise enlarged by the provision of Order 2 Rule 32 of the Rules of this Court.”

These two cases above have put it beyond any iota of doubt that leave is a condition precedent to appealing under S. 233 (3) of the 1999 Constitution. Therefore, as far as leave to appeal to the court is concerned, the general power of the Court to entertain it, as per the Constitutional provision is contained in Section 233 (3) of the Constitution. This power cannot be “superseded whittled down or otherwise enlarged” by the provision of Order 2 Rule 32 of the Rules of this Court. It means that the Constitutional requirement on leave to appeal is supreme over the provision of the Rules. Section 233 (3) only has reinforced the provisions of Order 2 Rule 32 of the Rules of this Court (supra) on appealing on finding of facts by the two lower courts.

The Appellant has contended that grounds 1, 2 and 3 of the Notice of Appeal are clearly grounds of law and therefore the application contemplated under Order 2 Rule 32 of the Rules of this Court (supra) and Section 233(3) of the Constitution (supra) become inapplicable. However after my careful scrutiny of these grounds I have come to the conclusion that these grounds are of mixed law and facts. Leave is therefore condition precedent to appeal under Section 233 (3) of the Constitution. This has been fairly settled. However Ground 4 of the Notice of Appeal is a challenge to the findings of the trial Federal High Court which was affirmed by the court below, that sponsorship of a candidate to contest an election is the exclusive preserve or prerogative of the political party which the court has no jurisdiction to dabble into. It is to be noted that the Federal High Court, after an evaluation of evidence found at page 496 of the record as follows:

“Once a candidate emerges as a result of the majority votes of delegates in a primary election and the party then forwards the name of such candidate to the 3rd Defendant, it is not the place of the court to up-turn the decision of the delegates and the political party…”

It would appear similar opinion was expressed by the Court of Appeal at page 569 of the record when it found thus:

“…The above decision is the correct position of the law. By Section 33 of the Electoral Act 2010 (as amended, a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of the Act except in the case of death or withdrawal by the candidate. The electoral Act set out condition when to substitute a candidate, the present circumstances does not fall within such circumstance. This issue two is resolved against the Appellant in favour of the Respondent…”

The Court of Appeal stance herein is an affirmation of the findings of fact of the court of first instance. The two courts below have concurred with each other in this view. I have said Ground 4 of the Notice of Appeal is a challenge to the findings of the trial Federal High Court which was affirmed by the Court of Appeal that the sponsorship of a candidate to contest an election is the exclusive preserve of the political party. This ground is of fact or mixed law and fact. The Appellant is expected by the provisions of Section 233 (3) of the Constitution to obtain the leave of either the Court of Appeal or this Court.

Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the court of jurisdiction to adjudicate on the matter. See METAL CONSTRUCTION (WEST AFRICA) LTD. V. MIGLIORE (1990) 1 NWLR (Pt 126) 299; OLUWOLE V. LSDC (1983) 5 SC 1; FALEYE V. OTAPO (1987) 4 NWLR (Pt 64) 186.

In the light of the foregoing, I am of the humble view that the preliminary objection on Grounds 1, 2, 3 and 4 of the Grounds of appeal is well taken. It is sustained, and consequently the grounds are accordingly struck out and the appeal is hereby struck out as well. I make no order as to costs.


SC.311/2012

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