Hon. Chris Azubuogu V. Hon. (Dr) Harry N. Oranezi & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Enugu Division, hereinafter referred to as the lower Court, in appeal No. CA/E/207/2015. The decision appealed against was delivered on 4th February, 2016. A brief summary of the facts that brought about the appeal is hereinafter supplied.

The 1st respondent herein, Hon Dr. Harry Oranezi, as Plaintiff at the Federal High Court sitting at Awka, hereinafter referred to as the trial Court, initiated suit No. FHC/AWK/CS/24/2015 against the appellant and five others as defendants seeking, on the basis of votes he avers in his writ to have scored in the 2nd respondent’s primary election conducted on the 7th December, 2014, declaratory and injunctive reliefs to the effect that he is the party’s candidate for the Nwewi North/South/Ekwusigo Federal House of Representatives Constituency in the Federal House of Representative election scheduled for 14th February, 2015. He is entitled to the reliefs, he further asserts, by virtue of Section 87(a) (c) of the Electoral Act 2010 (as amended) as well as 2nd

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respondent’s Electoral Guidelines for Primary Elections 2014.

In its ruling delivered on 19th March 2015, the trial Court sustained the objections of the defendants to the competence of the suit, declined jurisdiction and struck out 1st respondent’s suit.

Aggrieved, the 1st respondent appealed to the lower Court whereat, in upholding the appeal and setting aside the trial Court’s ruling, the suit was remitted to the trial Court for same to be heard and determined by a Judge other than M. L. Abubakar J.

Dissatisfied with the lower Court’s judgment, the appellant has appealed to this Court vide his notice containing six grounds filed on the 23rd February 2016.

At the hearing of the appeal, parties adopted and relied on their earlier filed and exchanged briefs as arguments for and against the appeal. 1st respondent’s preliminary objection filed on 28th February, 2017 to the competence of the appeal, in keeping with the practice in this Court, has been argued in his brief. Appellant’s response to the objection is as contained in his reply brief duly filed on 21/3/2017.

The objection shall be determined first in order to ensure

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that this Court has the necessary jurisdiction to proceed to hear and determine the appeal on its merits. To do otherwise, by proceeding without necessarily determining whether or not it indeed has the jurisdiction to, is for the Court to embark on a time wasting and fruitless venture. On the authorities, the Court’s eventual decision will be a nullity. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Usman Dan Fodio University v. Kraus Thompson Organisation Ltd (2001) 15 NWLR (Pt 736) 305 and Dr Kemdi & Anor v. Hon. Bethel Amadi & Anor (2013) LPELR-20747 (SC).

The 1st respondent challenges the competence of the 1st and 2nd grounds in the extant notice of appeal as well as the issues distilled from them. He argues that the two grounds which do not attack the ratio decidendi in the lower Court’s judgment and the issues purportedly formulated from them, being incompetent, should be discountenanced. Learned appellant’s counsel relies on Calabar East Corporation v. Ikot (1999) 14 NWLR (Pt 638) 225, Ikweki v. Ebete (2005) 11 NWLR (Pt 936) 397, Nsefik v. Muna (2014) 2 NWLR (Pt 1390) 75 and Amobi v. Nzegwu (2014) 2 NWLR (Pt 1302) 510 and insists that the

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grounds and the issues be struck out.

In response, learned appellants counsel refers to pages 39-47 and 41-43 of the lower Courts judgment at pages 293-294 and 295-297 of the record of appeal respectively and submits that the two grounds which attack the lower Courts findings thereat, cannot be said to be incompetent. Issues distilled from the grounds of appeal against these findings, it is further submitted, are equally competent. Learned counsel urges that 1st respondents misconceived objection be dismissed. I agree.

An examination of the 1st and 2nd grounds in the notice of the instant appeal at pages 305-310 of the record of appeal against the background of the findings of the lower Court at pages 293-297 of the record readily vindicates learned appellant counsels submission that the two grounds are a direct attack on those findings. It is also instructive to note that other than the two grounds, the 1st respondent contends are incompetent, the notice of appeal contains four more grounds all of which in addition to the grounds in contention, attack the lower Court’s crucial finding that the trial

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court’s ruling declining jurisdiction in respect of 1st respondent’s suit is perverse. The appeal, in the light of all the valid grounds, including the contested 1st and 2nd grounds, learned appellant’s counsel is right, being unarguably valid, cannot be discountenanced. 1st respondent’s unsustainable objection is accordingly hereby dismissed. See Alhaji Abiola Ekunola v. Central Bank of Nigeria & Anor (2013) LPELR-20391 (SC) and Niger Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) 787, Nwaigwe v. Okere (2009) 13 NWLR (Pt.1105) 445 at 474 and Chief Ameke Chriscato Ikechukwu v. Hon Tony Nwoye & Anor (2014) 4 NWLR (Pt 1397) 227 at 241.

Now to the appeal.

The 3rd of the three issues the appellant distilled in his brief and on the basis of which the appeal shall be determined reads:-

“3 Whether the Court of Appeal was right in holding that the 1st Respondent’s case can be founded within Section 87(4c) and 9 of the Electoral Act 2010 as amended Grounds THREE, FOUR, FIVE AND SIX OF THE GROUNDS OF APPEAL).

(Underlining supplied for emphasis).

The 1st respondent’s 2nd similar issue to appellant’s

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foregoing 3rd issue reads:-

“(b) Whether the learned Justices of the Court below were right when they held that 1st Respondent’s case (the Appellant’s case) was founded within Section 87 (4) and (9) of the Electoral Act, 2010 (as amended) (DISTILLED FROM GROUNDS FOUR & FIVE).

The other respondents have also formulated and argued similar issues for the determination of the appeal in their respective briefs.

On the issue, learned appellant’s counsel submits that it is settled that once the dispute in a suit is as to which of the two primaries of a political party confers the right to the party’s candidature in an election, the matter is taken outside the purview of Section 87 (4)(b) and (9) of the Electoral Act 2010 as amended. By paragraph 31 of his statement of claim, it is contended, the 1st respondent is asking the trial Court to prefer one out of the three primaries of the 2nd respondent produced its flag bearer. The lower Court, it is further contended, is wrong in its finding at page 295 of the record of appeal that 1st respondent’s complaint is cognisable under Section 87(9) of the Electoral Act. As held in a large

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body of decisions of the Supreme Court which necessarily bind the lower Court, learned appellant’s counsel submits, the 1st respondent having participated in one out of the three primaries is not entitled to the reliefs he claims. Relying inter-alia on Lado v. CPC (2011) 18 NWLR (Pt.1279) 689 at 703, Emeka v. Okadigbo (2012) 18 NWLR (Pt.1331) 55, Emenike V. P.D.P (2012) 12 NWLR (Pt.1315) 556 at 562, P.D.P v. Sylva (2012) 13 NWLR (Pt 1316) 85 and Charles Odedo V. Ejike Oguebejo and 4 Ors (2015) 13 NWLR (Pt.1476) 229 at 237, learned appellant’s counsel urges that the issue be resolved in appellant’s favour and the perverse decision of the lower Court set aside.

In arguing the issue, learned 1st respondent’s counsel submits that the lower Court’s finding that the trial Court has jurisdiction cannot be faulted. All the declaratory reliefs the 1st respondent seeks, it is submitted, fall squarely within the purview of Section 87(4) (b) and (9) of the Electoral Act, 2010 (as amended). The lower Court’s decision particularly at page 295 of the record of appeal on these complaints relating to the wrongful substitution of 2nd respondent’s candidate

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being in tandem with the Supreme Court’s interpretation and application of Section 87(9) of the Electoral Act, it is submitted, remains unassailable. Citing inter-alia the Ardo v. Nyako (2014) 10 NWLR (Pt 1416) 597, CPC V. Ombugodu (2013) 18 NWLR (Pt 1385) 56, Ukachukwu v. P.D.P (2014) 17 NWLR (Pt.1435) 134, Jev v. Iyortyom (2014) 14 NWLR (Pt 1428) 575, Ugwu v. P.D.P (2015) 1 NWLR (Pt 1459) 478 and Akpangbo Okadigbo v. Chidi (No 1) 2015 19 NWLR (Pt 1466) 171, learned counsel submits that since 1st respondent, by Paragraphs 26-32 of his statement of claim, has asserted the fact of being an aspirant in the primary election of the 2nd respondent, the conduct of which involves a breach of the provisions of the Electoral Act and the party’s Electoral Guidelines, the lower Court’s finding availing the 1st respondent access to Court by virtue of Section 87(9) of the Electoral Act (as amended) should persist. He urges the resolution of the issue against the appellant and the dismissal of the appeal.

Relying on virtually the same judicial authorities, learned counsel for the 5th and 6th respondents have proffered similar arguments as canvassed by the 1st

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respondent in their briefs. It serves no purpose to reproduce them.

The 2nd respondent, though served, was neither in Court, nor represented. It also did not file any brief of argument. It is further intriguing also to say the least, that the 3rd respondent rather than defend the lower Court’s judgment and urge for the dismissal of the appeal has proffered contrary argument in his brief. Having not cross appealed, such arguments do not avail the 3rd respondent and are accordingly discountenanced. See Peter Obi v. INEC & Ors (2007) 7 SC 268 and Fiicharles Organ & Ors v. NING Ltd & Anor (2013) LPELR-20942 (SC).

It is important to recall that at the hearing of the appeal, the 4th respondent’s brief was struck out same having been withdrawn without objection.

Now, the very narrow issue in this appeal is indeed whether the lower Court is right in finding that the trial Court has jurisdiction over 1st respondent’s action and ordering that it be heard and determined on the merit. In sustaining the preliminary objections of the 1st 3rd defendants, the appellant and 3rd and 4th respondents herein, against 1st respondent

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claim, the trial Court at pages 109 – 111 has held as follows:-

“It is settled that Court have (sic) consistently declined to entertain jurisdiction in inter party disputes concerning the candidate a political party chooses to sponsor for an election. The Courts cannot therefore compel a political party to sponsor one candidate in preference for another candidate of a self-same party. The issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rules and Constitution of the said party. It is thus a domestic issue and not such as would be justifiable (sic) in a Court of law…… From the facts available, three different primary elections were held by three different groups of the Peoples Democratic Party and each producing its candidate…… Based on the above, I entirely agreed with the learned counsel for the 1st 3rd Defendants/Applicants that this Court lacks jurisdiction to entertain this suit and is accordingly.”

In setting aside the trial Court’s foregoing finding, the lower Court at pages 297 – 300 of the record of appeal adopted the criteria the Apex Court

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fashion in adjudging whether a person’s claim comes within the purview of Section 87(4)(b) (9) of the Electoral Act 2010 (as amended) thus:-

2. The complaint must be founded on the selection or nomination of a candidate for an election.
3. There must have been a primary for the selection or nomination of a candidate by political party.
4. The Claimant must be a member of the political party and must have or ought to have participated in the primary.
5. An aspirant who claims that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with or complains of rigging in the primary has a right to approach the Court for redress. Since the Appellant herein averred that he participated in the primary conducted by 1st – 3rd respondents and the Ken Emeokoyi- led State Executive Committee, he has a right to approach the Court to seek redress for his complaints of manipulation of the result of the primary and the Court has the jurisdiction and the duty to decide which of the primaries is the valid and authentic one and who actually won the primary. See C.P.C. Vs. Ombugadu supra; Ugwu Vs. PDP

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(supra).

The court then concluded at page 300 as follows:-

“Since the appellant herein averred that he participated in the primary conducted by the 1st – 3rd Respondents and the Ken Emeokoyi led State Executive Committee, he has right to approach the Court to seek redress for his complaints of manipulation of the result of the primary and the Court has the jurisdiction and the duty to decide which of the primaries is the valid and authentic and who actually won the primary. See C.P.C. Vs. Ombugadu (supra); Ugwu Vs. PDP supra.”

The foregoing finding of the lower Court is unassailable. Learned appellant’s counsel must be reminded that a Court’s finding on appeal is only set aside where same is found to be perverse. An appellate Court, learned counsel is to further appreciate, adjudges a decision appealed against perverse if it neither draws from the evidence on record nor upon correct application of some principle. See Adimora V. Ajugo (1988) 3 NWLR (Pt 80) 1, Clifford Osuji V. Nkemjika Ekeocha (2009) LPELR-2816 (SC) and Raphael Ude V. State LPELR-40441 (SC). Since the lower Court’s judgment appealed against is devoid

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of these defects and is not further shown to have either taken into account matters it ought not to have taken or shut out obvious facts, I agree with learned counsel to the 1st, 5th and 6th respondents that the judgment should persist. In justifying this position, three trite principles of law need to be restated at this point.

Firstly, jurisdiction of a Court is generally provided by a statute and or the Constitution. Any challenge to a Court’s jurisdiction, therefore, is resolved within the purview of the legislation that donates the jurisdiction to the Court. See Okocha Samuel Osi v. Accord Party & ors (2016) LPELR-41388 (SC) and Galadima v. Tambai (2000) 6 SC (Pt 1) 196.

Secondly, whenever the jurisdiction of a Court is challenged, in an action fought on pleadings, the objection is resolved by examining the plaintiff’s claim alone within the con of the source of the Court’s jurisdiction. See: Ibori v. Agabi (2004) 6 NWLR (Pt 868) 78 and Vivian Clems Akpongbo-Okadigbo & Ors v. Egbe Theo Chidi & Ors (2) (2015) LPELR-24565 (SC).

Thirdly, Courts are bound by the earlier authoritative pronouncements of superior Courts on

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same or similar issues they are subsequently asked to determine. See Olu of Warri v. Kparegbayi (1994) 4 NWLR (Pt 339) 414, Osagie II v. Offor (1998) 3 NWLR (Pt 541) 205 and Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310 at 350.

The reliefs the 1st respondent sought at the trial Court read:-

1. DECLARATION that the Plaintiff having polled the majority of votes at the … Respondent’s Primary election conducted on 7th December, 2014, for the emergence of its candidate for Nnewi North, South and Ekwusigo Federal Constituency in the Federal House of Representative election scheduled for 14th February, 2015 is the candidate of the 1st Defendant at the February 2015 election.
2. DECLARATION that the Plaintiff having polled majority of votes at the said Defendant primary election was entitled to have his names as the 1st Defendants candidate for Nnewi North/South/Ekwusigo Federal House of Representatives Constituency in the Federal House of Representative Election, 2015 submitted by the 2nd and 3rd Defendants to the 6th Defendants.
3. DECLARATION that the Plaintiff having declared the winner of the said primary election under

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Section 87(4) (c) of the Electoral Act 2010 (as amended), he cannot be substituted with the 4th Defendant, albeit 5th Defendant, both of who lost the primary election under the Electoral Guidelines for primary Election 2014 of Peoples Democratic Party and Electoral Act (supra).

4. PERPETUAL MANDATORY INJUNCTION Compelling the 1st 3rd and 6th Defendants to recognize the Plaintiff as the candidate of the 1st Defendant, and in that behalf accord him all perquisite as the 1st Defendant’s Candidate for the Federal House of Representatives election 2015 in respect of Nnewi North/South/Ekwusigo Federal House of Representatives Constituency.”

The reliefs are predicated on the facts averred to in particularly paragraphs 26 – 31 of the 1st respondent’s

statement of claim hereinunder reproduced for ease of reference:-

26. On the 7/12/14, 1st Defendant, acting through the National Assembly Electoral Commission, did conduct the primary election for Nnewi North/South/Ekwusigo Federal House of Representatives Constituency wherein Plaintiff, along with 4th and 5th Defendants stood for the primary election. At the end of polls,

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Plaintiff emerged victorious and was declared the winner by the returning officer having polled 93 votes out of 123 accredited delegates as against 4th Defendant’s 12 votes and 5th Defendants, 9 votes. The result of the said primary election shall be found upon at the trial.

27. Notwithstanding the conduct of the said primary election, and Plaintiffs emergence thereof as the candidate of the 1st Defendant, the 2nd and 3rd Defendants for self serving reasons substituted the name

of the Plaintiff with that of the 4th Respondent contrary to the party’s Electoral Guidelines and Electoral Act.

28. The result of the said primary election was properly recorded on the official result sheet Form – Code PD00A/NA/2014, signed by the Returning Officer and publicly announced in compliance with the PDP Electoral Guideline Elections 2014. The copy of the result was given to contestants and security operatives present by the Returning officer. Copy of the result shall be found upon at the trial.
29. As precipitated by the development in paragraph 27 above, Plaintiff quickly took steps to confront some of the members of the Party’s National

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leadership in order to ascertain the reason for the manipulation of the outcome of the Primary election only to be informed by some national officers of the 1st Defendant who acknowledged the fact that he won convincingly the primary election but that result had been manipulated to favour of the 4th Defendant as the preferred choice of President Jonathan. In similar fashion, names of other aspirants preferred by powerful persons within the party made the list of candidates in Anambra State.

30. Wide spread discontent and criticism greeted the list of candidates published by the 1st Defendant for Anambra State. The dust thrown up by the hullabaloo was yet to wane, when a rebel group within the party effected a contraption and manipulation with the 6th Defendant. In a strange twist of event, 6th Defendant accepted the name of the 5th Defendant as the candidate of the 1st Defendant from a rebel group in the party known as Oguebego- led Anambra State Executive, who held s primary parallel to that organized by the 1st 3rd Defendants.
31. The drama playing out in the submission and publication of list of candidates has thrown up three

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characterization of aspirants seeking to fly the 1st Defendants flag at the February, 2015 polls:

a. The first group, where the Plaintiff belongs, were those who contested and won primary election conducted by the 1st 3rd Defendants in tandem with Ken Emeakayi- led State Executive Committee.

b. The second group, where the 4th defendant belongs, were those who emerged from a supposed Primary conducted by 1st 3rd Defendants in tandem with Rtd, General Aliyu Kama- led care-taker or South-East Zonal Committee Care-Taker.

c. The third group, where the 6th Defendant belongs, were those emerged from a supposed Primary conducted by a group known as Oguebego – led State Executive Committee in exclusion of 1st 3rd Defendants.

32. Plaintiff shall at the trial contend that the validity of primary election cannot be located by the 1st – 3rd Defendants organizing the primary election alone but in the organization synergy between the 1st – 3rd Defendants and the recognized elected State Executive Committee. Plaintiff is a product of the later.”

Now, a cumulative reading of the foregoing averments

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manifest the facts necessarily required for the invocation of the Court’s jurisdiction under Section 87(4) (b) and (9) of the Electoral Act 2010 (as amended), which facts the trial Court evidently discountenanced. The reliefs the 1st respondent claims are premised on the fact of his having participated in 2nd respondent’s primary election of 7th December, 2014 and emerged victorious. Contrary to 2nd respondent’s Electoral Guidelines and the Electoral Act, he further asserts, his name was substituted with that of the 4th defendant at the trial Court. His suit, it is further asserted, is informed by this breach of the party’s Electoral Guidelines and the Electoral Act obtaining relief for which breach Section 87(4)(b) and (9) of the Electoral Act (as amended) provides access to Court. The trial Court fell into serious error when it isolated Paragraph 31 of the statement of the claim in determining the objections to its assumption of jurisdiction over 1st respondent’s suit.

It is settled that in construing pleadings, as it is with statues, the averments should be considered as a whole to gather the collective import of the pleaded facts. The trial

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Court’s reading of Paragraph 31 of the statement of claim in isolation, without relating the paragraph to the preceding paragraphs, not surprisingly, pushed the Court into an avoidable error. The preceding paragraphs are not only complementary to the paragraph the Court singled out and relied on in determining the objections to its jurisdiction over the suit they also explain the meaning and scope of the subsequent paragraph. See The Minister of Housing and Local Government V. Lawbert (1969) 2 NWLR 447 and Mobil Oil (Nig) Plc v. IAL 36 Inc (2000) 4 SC (Pt 1) 85, Yesuf & Anor v. Ojo & Ors (1958) vol. 7 NSCC 99 and Krans Thompson Org v. NIPSS (2004) 17 NWLR (Pt 901) 44.

Again, had the trial Court availed itself of the myriad of decisions of this Court, which the lower Court elaborately and painstakingly considered and applied, it would have avoided the needless error it succumbed to. Instead, the Court focused its entire mind on the “three” primaries the 1st respondent mentions in Paragraph 31 of his statement of claim completely oblivious of the fact, in the preceding paragraphs, that 1st respondent’s real grief pertains his substitution by the

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4th defendant as the 2nd respondent’s flag bearer in the election to which the primary relates. It is this pervasion of the result of the 2nd respondent’s primary election, occasioned by the breach of the party’s Electoral Guidelines and the Electoral Act 2010 (as amended), that constitute the injury the 1st respondent’s action seeks to contain given the access Section 87(a) (b) and (9) of the Electoral Act 2010 (as amended) creates for the reliefs thereinunder.

Granting without conceding that paragraph 31 of the statement of claim is an actual reference to three primaries, one must agree with learned 1st respondent’s counsel that, unlike the trial Court, the lower Court in the discharge of its responsibility rightly insists that 1st respondent action is still justiciable. In Ugwu v. P.D.P. (supra) this Court per Aka’ahs JSC at page 478 of the law report has enthused as follows:-

“I am of the considered view that the trial Court will be abdicating its responsibility if it declares that the suit is not justiciable. It has a duty to say which of the two primaries is the authentic one. This is the reason why Section 87(4) (i), 4(c), (i), (ii) and (9)

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has been put in place and to avoid arbitrariness by some officials of the political party who may want to impose their preferred candidates who probably did not take part in primaries because of the conflicting claims by the parties. It is only the Court that could resolve the issue. This is the dimension which the decision in C. C Vs. Ombugadu supra introduced.

One is unable, in the right of the facts of this matter and the applicable law, therefore, to agree with learned appellant counsel’s submission that the trial Court’s manifestly perverse decision, properly adjudged so and set aside by the lower Court, be restored.

The 1st respondent having participated in the 2nd respondent’s primary election is the aspirant the Electoral Act in Section 87(4) (b) and (9) provides a platform for to seek the reliefs he circumscribes in his claim. The section has already been interpreted and applied by this Court in a seemingly endless number of its decisions a great deal of which have been cited by both sides to the appeal. In Garba v. Mohammed (2016) 16 NWLR (Pt 1537) 114 this Court per Mohammed CJN (as he then was) at pages 164 – 165 Paragraphs H –

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C of the law report held as follows:-

“As for the additional jurisdiction conferred on the Federal High Court under Section 87(9) of the Electoral Act, 2010 as (as amended) quoted above, it gives any aspirant member of a registered political party who participated in a primary election conducted by a political party to choose a candidate to contest an election under its platform, who is not satisfied with the outcome of the primary election contested with other members of the same political party, to approach the Federal High Court or High Court of a State or FCT High Court for redress….. In other words, any dispute arising from the conduct of primary elections by political parties to nominate candidates to contest elections, may be bought to the Federal High Court under Section 87(9) of the Electoral Act, 2010 (as Amended) by an aggrieved aspirant of any political party who participated in the primary election conducted by a political party for resolution by that court.” (Underlining supplied for emphasis).

See also Lokpobiri v. Ogola (2016) 3 NWLR (Pt 1499) 328.

The lone issue for the foregoing is determined against the

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appellant. The appeal is hereby dismissed and the judgment of the Court of Appeal in appeal No. CA/E/207/2015 delivered on 4th February, 2016 affirmed. The costs of the appeal is assessed at Three hundred thousand naira (N300,000.00k) in favour of the 1st respondent against the appellant.

SC.279/2016