Mr. James Bakam V. Alhaji Yakubu Abubakar (1991)

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OKUNOLA, J.C.A. 

This is an appeal against the ruling of S.M. Coomassie J of the High Court of Kaduna State dated 6th December, 1990, in respect of the plaintiff/Respondent’s claim against the 1st Defendant/appellant for the following relief endorsed in the writ on p.2 of the Record as follows:-

An order of court directing the Defendant to accept as the authentic list and to act on the same as being the only list of nominated candidates of the S.D.P. Kaduna Local Government Area for the purpose of contesting the forthcoming Local Government Elections Scheduled for the 8th of December, 1990″.

The 1st plaintiff Respondent also filed a statement of claim. The nature of the suit being an Intra-party dispute as to which candidate or candidates the S.D.P. should sponsor to contest the Local Government Election, in Kaduna Local Government Area (hereinafter referred to as the KLGA) the 1st Defendant/Appellant did not bother to put in an appearance nor contest the suit. However, the 2nd Defendant now the appellant herein being aware of the threat posed by the suit to his candidacy to contest the aforesaid election as the S.D.P. Chairmanship candidate for the KLGA later applied and was joined as 2nd Defendant in the suit and later filed his statement of defence and counter-claim. (see pages 50-54 of the Records). Subsequently, issues were formulated. Since the elections were very close, the parties sought for and obtained the leave of court to argue the issues at stake. Counsel to both the Respondents and the Appellants made their submissions on 4/12/90 on the issues formulated by them and the court gave its ruling on 6/12/90 just over a day to 8/12/90 the Election Day.

In his Ruling, judgment was entered in favour of the Respondent herein against the appellant when the National Electoral Commission (hereinafter referred to as NEC) was ordered to use only the names of the S.D.P. candidates submitted to it by the S.D.P. following that parties primary elections of 14/10/90 and to reject the list submitted by the party following the fresh primaries conducted on 17/10/90 which contained the name of the appellant herein thereby depriving the appellant of contesting the elections of 8/12/90. By the ruling, the court determined for the S.D.P. the candidates, it should sponsor for the said elections. Dissatisfied with this ruling, the appellant brought this appeal to the court of appeal on 3 grounds contained in the Notice of Appeal.

From the three grounds of appeal, two issues were formulated by the appellant for the determination in this appeal which I agree forms the kernel of this appeal. These are:

(i) Whether, notwithstanding the provisions of section 6(6) (b) and 236 of the 1979 Constitution, the High Court lacks jurisdiction to entertain the suit because the power and right to nominate and sponsor candidates to an election are the exclusive domestic affair of a political party and the Court should not dictate or compel a political party to nominate or sponsor a particular candidate or candidates.

(ii) Whether the High Court lacks jurisdiction to compel the NEC or direct it as to the way and manner it should exercise or discharge the statutory powers and functions conferred upon it by the statute establishing it.

Before dealing with the issues highlighted above, it will be observed that the Respondent has not filed any brief in this appeal despite this court’s order of 18/3/91 on the parties to do so on or before the 22nd day of March 1991. Instead of complying with this order, the Respondent’s counsel on 25/3/91 when the appeal was to be heard brought a motion for an adjournment of the appeal to 27/3/91. It also sought for an order of the court to “exercise its power to and receive as further evidence on questions of facts relating to the issues involved in this case, the writ of summons and the accompanying statement of claim in suit No.KDH/KAD/475/90”, The learned counsel to the appellant opposed this application on the ground that the Respondent cannot be heard since he has not filed his brief. The learned counsel referred the court to its earlier order for accelerated hearing of this appeal and refusal of waiver of filing briefs etc. He contended that the application would amount to a review of the court’s earlier order. The court upheld the appellant’s argument and held that the Respondent cannot be heard even if the case is adjourned having regards to Order 6 Rule 10 of the Court of Appeal Amendment Rules 1976 since he has not filed his brief. Moreso, when he has not filed motion for extension of time to file his brief. The court therefore gave leave to the appellant to proceed with his argument in this appeal.

We are therefore left with the Appellant’s brief of argument. In the brief the appellant abandoned ground 3 which is hereby struck out. In the main, the core of this appeal centres on whether the High Court has jurisdiction to entertain the present suit since the power and right to nominate and sponsor candidates to an election are the exclusive domestic affair of a political party?

Learned counsel to the appellant adopted his brief filed herein. On this issue which he tagged as NO.1 he contended that the above poser raises the issue of jurisdiction which can be raised at any stage of the proceeding or even on appeal. I seem to agree with counsel on this point. I will go further to add that issue of Jurisdiction can even be raised suo motu by the court where the parties have failed to do so. (See

(i) Ijebu Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136 at 154 C-D, 164 A-B, 153 D-E.

(ii) Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 p. 520 C-F

(iii) Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 p. 206 A-B