Mr. Ozegbe Lawrence V. Peoples Democratic Party (Pdp) & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The appellant as Claimant sued Hon. Friday Osanebi and Peoples Democratic Party (PDP) (now 2nd and 1st respondents respectively) in the Delta State High Court, Asaba seeking for:-

(a) A declaration that the affidavit and documents submitted to the 3rd defendant by the 1st defendant in his nomination as the candidate of the 2nd defendant as the candidate of the Ndokwa East Constituency for the election into the 2015 general elections into the Delta State House of Assembly contain several falsehood (sic) and that the 1st defendant is therefore not qualified to contest the said election.

(b) An order of the honourable Court disqualifying the 1st defendant from contesting the 2015 general election into the State House of Assembly as a candidate of the 2nd defendant for the Ndokwa East State Constituency or for any other constituency.

(c) An order of perpetual injunction restraining the 3rd defendant from accepting the 1st defendant for Ndokwa East State Constituency for the 2015 general election into the Delta State Constituency or for any other constituency.

1

Both 1st and 2nd respondents filed preliminary objections to the claimant’s suit. The trial Court heard the two separate applications and delivered its ruling in respect of the 2nd application on 14/12/2015 and struck out the suit on the ground that the claimant has no locus standi to institute the suit.

The claimant felt aggrieved and appealed against the said ruling while the 1st defendant (now 2nd respondent) filed a notice of cross-appeal. The lower Court upheld the order striking out the suit for lack of jurisdiction and dismissed the appeal. This prompted the further appeal to this Court. Strangely the appellant cross-appealed against a decision in his favour.

The appellant submitted four issues for determination which were distilled from the five grounds of appeal which accompanied the notice of appeal. The issues are-:

3.01 Whether the decision in APGA v. Senator Anyanwu & Ors (2014) 7 NWLR (Pt.1407) 541 was that a member of a political party does not have the locus standi to challenge any false declaration by a candidate of his political party under S. 31(5) of the Electoral Act 2010 (as amended) Grounds 1 and 3.

2

3.02 Whether the lower Court was not bound by the pleadings of the parties. Ground 2.

3.03 Whether a member of a political party is excluded or barred under S.31(5)of the Electoral Act (as amended)from bringing a suit against a candidate of his political party upon a reasonable ground that such candidate has given false information in his affidavit or documents to the electoral body. Ground 4.

3.04 Whether the lower Court was right in holding that the failure of the trial Court to deliver a ruling in respect of the 2nd respondent’s motion challenging the competence of the appellants suit did not breach the appellant’s right to fair hearing Ground 5.

I will peremptorily deal with the cross-appeal.

An appellant cannot also cross-appeal. The two terms are incongruous. In any event, the learned Justices of the Court below (Oseji, Adumein and Oniyangi JJ. CA) agreed with the submission that the signature on top of F. A. Onuzurike Esq and K. T. N. Nwanebo Esq who were the plaintiff’s counsel should be appropriated to any of the counsel and so the failure to appropriate the signature to any of them did not vitiate the competence

3

of the statement of claim. Therefore a party in whose favour an order has been made by the Court does not have a right of appeal against that order. See: Ekunola v. CBN (2013) 15 NWLR (Pt.1377) 224. The preliminary objection succeeds and the cross-appeal is struck out.

The 1st respondent formulated four issues in the appeal which are the same as the issues formulated by the appellant.

The 2nd respondent submitted three issues for determination. The first issue is the same as Issue No. 1 in the appellant’s brief. The other issues are:-

2. Whether the case of the appellant before the trial Court was predicated on his participation in the primary election of the Political Party (PDP), the 1st respondent herein.
3. Whether the decision of the lower Court occasioned any miscarriage of justice.

The 1st and 3rd respondents repeated the issues in the appellant’s brief.

This appeal is centred mostly on the application of the judgment of this Court in APGA v. Senator Anyanwu supra.

This is encapsulated in issues 3.01. and 3.03 of the appellants brief. In the judgment of the lower Court per Adumein JCA

4

at pages 265-266 of the record he held thus:-

“The Supreme Court has held in a plethora of cases that “membership of a political party is not justifiable with particular reference to Section 31(5) of the Electoral Act 2010 (as amended) under which the appellant is claiming locus standi, the Supreme Court, per Kekere-Ekun JSC stated in All Progressive Grand Alliance (APGA) v. Senator Christiana N. D. Anyanwu & 2 Ors (2014) 7 NWLR (Pt.1407) 541 at 577 that:-

“Since the sponsorship of candidates is the prerogative of the political party, it would be absurd to interpret the provisions of Section 31(5) above as permitting members of the same political party to challenge the party’s choice in Court”.

The appellant asked this Court to interpret the term a person used in Section 31(5) of the Electoral Act 2010 (as amended) to mean any person” including himself having regard to the circumstances of this case. I will decline to succumb to this invitation. To accede to the interpretation of Section 31(5) of the Electoral Act, 2010 (as amended) as suggested by the learned counsel for the appellant,

5

is to directly refuse to be bound by or overrule the clear and unambiguous decision of the Supreme Court in All Progressive Grand Alliance v. Senator Christiana N. D. Anyanwu & 2 Ors (supra)”.

Learned counsel for the appellant submitted that the decision of a Court is the ratio decidendi and not the orbiter dictum and the issues presented for adjudication in APGA v. Anyanwu were two namely:-

1. Whether Senator Chris Anyanwu was a member of the All Progressive Grand Alliance (APGA); and
2. Whether Senator Chris Anyanwu contested the primary election conducted by the All progressive Grand Alliance (APGA) for Imo East Senatorial Zone for the 2011 general election into the Senate of the Federal Republic of Nigeria.

It was within these confines that Hon. Independence Chiedoziem Ogunewe contended that Senator Chris Anyanwu was not a member of APGA. Consequently the issue of the application of Section 31(5) of the Electoral Act 2010 (as amended) was not before the Court. It is the decision in Garba v. Mohammed (2016) 14 NWLR (Pt. 1537) 114 that has answered the question whether a member of a party is excluded or barred under

6

Section 31(5) of the Electoral Act 2010 (as amended) from bringing an action against a candidate of his political party upon reasonable ground that such candidate has given false information in his affidavit or documents to the electoral body.

All the respondents contended that since the appellant and the 2nd respondents are members of the same political party, the appellant lacks the locus to challenge and question the prerogative right of the 1st respondent on its choice of the 2nd respondent as the candidate for the election since the right to nominate candidates for election is vested in the Political Parties and therefore a question within the Political parties which is non justifiable citing the following cases in support:-

Lado v. CPC (2011) 18 NWLR (Pt. 1279) 689; Onuoha v. Okafor (1983) 2 SCNLR 244 and PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85.

It was the submission of counsel that the decision of this Court in APGA v. Anyanwu (2014) 7 NWLR (pt.1407) 576-577 has laid to rest the issue that the appellant cannot anchor his locus standi on Section 31(5) of the Electoral Act 2010 (as amended). It was submitted that Garba v. Mohammed

7

supra relied on by the appellant is not applicable to this case.

Section 31(5) and (6) of the Electoral Act 2010 (as amended) provides as follows:-

“31(5)Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit of any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.

It is the contention of learned counsel for the appellant that a challenge of a candidate under Section 31(5) of the Electoral Act is not about a challenge to a party’s choice and he placed reliance on Garba v. Mohammed supra. The facts in that case are as follows:-

On 8th and 10th December, 2014 the 2nd respondent; the All Progressives Congress (APC) conducted primary elections to select

8

its candidate for the Niger South Senatorial District in the 2015 general elections. The appellant, the 1st respondent and two other candidates contested the said primaries. The 1st respondent was declared the winner while the appellant came second. The 1st respondent’s name was submitted to the Independent National Electoral Commission (INEC) as the 2nd respondent’s candidate for the Senatorial District election of 2015. The 1st appellant was dissatisfied with the outcome and appealed to the Appeals Committee of the 2nd respondent. His contention was that the 1st respondent was not a member of the party. According to the appellant the National Working Committee of the 2nd respondent (not the Appeals committee) recommended that the 1st respondent be disqualified. The appellant was given Form CF 001 and an INEC nomination form, which he completed and submitted to the Commission (3rd respondent). However the 3rd respondent refused to substitute his name without a Court order compelling it to do so.

Consequently, the plaintiff/appellant filed an originating summons at the Federal High Court, Minna seeking various reliefs against the respondents on the

9

ground that the 1st respondent was not a registered member of the 2nd respondent and therefore ought not to have been returned as the winner of the primary election held on 10/12/2014 and his name ought not to have been forwarded to INEC as the partys candidate for the general election. He subsequently filed an amended originating summons wherein he sought for the determination of certain questions. One of the questions was:-

“Whether having regard to the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended) the 1st defendant is not disqualified from participating in the Niger South Senatorial Election 2015 having given false information as to his membership of the 2nd defendant in the affidavit, Form CF 007, submitted to the Independent National Electoral Commission.

One of the reliefs he sought for was an order of Court disqualifying the 1st defendant for giving false information in his affidavit of personal particulars, Form CF 001 and mandating the 3rd defendant to substitute the name of the 1st defendant with that of the plaintiff as the 2nd defendant’s candidate for Niger South Senatorial District in the

10

March 2015 general elections.

Upon being served with the originating summons the 1st respondent filed a counter affidavit and written address in opposition. He also filed preliminary objections challenging the appellant’s suit and the Courts jurisdiction to entertain it. The learned trial Judge entered judgment in favour of the appellant and dismissed the 1st respondent’s preliminary objection.

Being dissatisfied with the decision, the 1st respondent appealed to the Court of Appeal. The appeal was allowed and the decision of the trial Court in favour of the plaintiff was set aside for lack of jurisdiction. The plaintiff/appellant subsequently appealed against the judgment of the Court of Appeal. This Court allowed the appeal, set aside the judgment of the Court of Appeal and restored the judgment of the Federal High Court, Minna.

I agree with the submission of learned counsel for the appellant that the decision of this Court in Garba v. Muhammed supra answered the question that a member of a party is not barred under Section 31(5) of the Electoral Act 2010 (as amended) from bringing an action against another member of his political

11

party for giving false information in his affidavit or document to the electoral body.

The decision in APGA v. Anyanwu & Ors supra is distinguishable on the facts since no allegation of making a false declaration was made in that case as has been done in this case. The two issues which the appellant formulated for determination in APGA v. Anyanwu were on the membership of the All Progressive Grand Alliance (APGA) and they are as follows:-

1. Is it correct for the Court below to determine this appeal on merit without setting the challenge of jurisdiction of the Court below to hear and determine the suit itself
2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the Court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all

Where the words used in a statute are clear and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words. See: African Newspapers of Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Fred Egbe v. Yusuf (1992) 6 NWLR (Pt.245) 1; Olanrewaju v.

12

Governor of Oyo State (1992) 11 12 SCNJ 92; (1992) 9 NWLR (Pt. 255) 335.

The use of the phrase “a person” in Section 31(5) of the Electoral Act is clear and unambiguous and does not admit of two meanings. It does not restrict the action to be taken only to members of other Political parties. Furthermore the application to be made to the commission in Section 31(4) of the same Act for the copy of the nomination form, affidavit and any other document submitted by a candidate is opened to everybody. It follows that the decision to go to Court to prove that a candidate who has been nominated to contest in the general election can be undertaken by anybody and not just the members of an opposing political party. And it is only the Court that can issue an order disqualifying the candidate from contesting the election.

The provision does not derogate or in anyway impinge on the powers of a political party to decide who becomes their member as the membership of the political party is not justiciable. It has been said times without number that Courts have no business dabbling into any political question which remains the exclusive preserve of the

13

political parties; consequently the decisions in cases such asOnuoha v. Okafor (1983) 2 SCNLR 244; Lado v. C.P.C. (2011) 18 NWLR (Pt. 1279) 689; P.D.P. v. Sylva (2012) 13 NWLR (Pt.1316); ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 which deal with the membership of political parties and the power of the political parties to keep their members in check is still extant.

This appeal therefore has merit and it is allowed. A challenge of a candidate under Section 31(5) of the Electoral Act 2010 (as amended) is not a challenge to a party’s choice of which candidate to sponsor. The case is remitted to the High Court of Delta State, Asaba and should be dealt with expeditiously. No order on costs is made.

---

SC.81/2017