Nicholas Ukachukwu Vs Peoples Democratic Party & 3 Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

On 4th November 2013 we heard this appeal and delivered judgment allowing the appeal in part. We adjourned till today to give reasons for the judgment.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on 23/10/2013 setting aside the judgment of the Federal High Court sitting in Port Harcourt delivered on 17/9/2013. The facts leading to the appeal are as follows: On 24/8/2013 the National Executive Committee of the 1st Respondent organized primaries to select its candidate for the Anambra State Gubernatorial Elections scheduled to take place on 16/11/2013. At the initial screening exercise the 1st respondent’s screening committee disqualified the 3rd respondent on the ground of irregular payment of taxes. He failed to produce receipts showing payments made as and when due. The matter was referred to the 1st respondent’s screening appeals panel for Anambra State, which after examining receipts subsequently submitted by him, allowed his appeal and cleared him to contest the primary election. Both the appellant and the 3rd respondent participated in the said primaries. The 3rd respondent emerged the winner with the highest number of votes. The appellant came second. The 1st respondent therefore on 29/8/2013 issued the 3rd respondent with a certificate of return and his name was forwarded to the 4th respondent as its gubernatorial candidate in respect of the upcoming election.

The appellant was dissatisfied with the decision of the gubernatorial appeal panel and instituted an action by way of originating summons before the Federal High Court sitting in Port Harcourt (henceforth referred to as the trial court) claiming inter alia that the 3rd respondent was not qualified to participate in the August 24th primaries. In a considered judgment delivered on 17/9/2013 the court found in favour of the appellant and declared him the 1st respondent’s candidate for the election slated for 16/11/2013. The 4th respondent thereupon substituted the 3rd respondent’s name with that of the appellant. Dissatisfied with this state of affairs the 1st-3rd respondents approached the Court of Appeal, Port Harcourt Division (henceforth referred to as the Lower Court) seeking to set aside the decision of the trial court on the ground of lack of jurisdiction. The appeals were consolidated. Having regard to the fact that the date for the Anambra State Gubernatorial Election was fast approaching the Lower Court abridged the time for the filing of briefs. A series of interlocutory applications filed on behalf of the appellant were heard and dismissed or struck out and the appeal set down for hearing. On account of the interlocutory proceedings the time within which to file the appellant’s (then respondent’s) brief of argument lapsed. The brief of argument was filed along with an application for enlargement of time within which to file same. When the application was to be moved, learned counsel for the appellant sought an adjournment, which was refused by the court, He was called upon to move the application and when he refused to do so it was struck out. Learned counsel for the appellant then left the court room. Having filed a separate brief of argument along with the motion paper, the court in the exercise of its discretion and relying on Order 20 Rule 3 of the Court of Appeal Rules 2011 deemed the appellant as having argued the appeal based on the brief filed and adjourned the matter for judgment to be delivered on a date to be communicated to the parties. The Lower Court eventually delivered its judgment on 23/10/2013 wherein it set aside the judgment of the trial court delivered on 17/9/2013 and declared the 3rd respondent, the 1st respondent’s candidate for the upcoming election.

The appellant was thoroughly dissatisfied with this decision and appealed to this court via two notices of appeal. The first was filed on 24/10/2013 (see pages 307 – 310 of Vol. 3 of the record of appeal) while the second was filed on 29/10/2013 (see pages 1 – 9 of the supplementary record). The appellant abandoned the notice of appeal filed on 24/70/2013 (see paragraph 3 pages 5 – 6 of the appellant’s brief filed on 30/10/2013) and argued the appeal based on the notice of appeal filed on 29/10/2013 containing 6 grounds of appeal.

In compliance with the rules of this court the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief, settled by J. B. DAUDU, SAN was filed on 30/10/2013. The 1st and 2nd Respondents’ brief filed on 1/11/2013 was settled by CHIEF JOE-KYARI GADZAMA, SAN. The 3rd respondent’s brief was also filed on 1/11/2013. It was settled by G. S. PWUL, SAN. The 4th respondent equally filed its brief on the same day, 1/11/2013. It was settled by IBRAHIM BAWA ESQ. In reaction to the aforementioned briefs the appellant filed a Reply brief on 4/11/2013. The appellant formulated 3 issues for the determination of this appeal as follows:

1. Whether the judgment of the Court of Appeal leading to this Appeal hinged on non-existent Brief of Argument in particular the 1st Respondent’s (Appellant’s) Brief of Argument, which had in the course of the proceedings been struck out is not a breach of the present Appellant’s (then 1st Respondent) right to fair hearing, thereby nullifying the judgment of the court below (Ground 1).
2. Whether the Court of Appeal was right when it held that the trial Federal High Court lacked jurisdiction to adjudicate on the complaint of the Appellant on the basis that his complaint did not come within the ambit of Section 87 (9) of the Electoral Act, 2010 as in the court’s view the reliefs sought were predicated on matters that were solely internal party matters and therefore not justiciable (Grounds 2, 3, 5 and 6).
3. Whether the Court below was right in holding on the one hand that the trial Federal High Court lacked jurisdiction to have adjudicated on the dispute between the parties, and on the other hand went ahead to consider the matter on its merits and proceeded to make Orders and consequential Order (Ground 4).

Issue 3 was subsequently abandoned. It is accordingly struck out.

The 1st and 2nd respondents formulated two issues for determination thus:

1. Whether the decision of the Court of Appeal to adopt the 1st respondent’s (now appellant) brief, in favour of the 1st respondent (now appellant), his counsel having abandoned his matter in court, amounts to a breach of the appellant’s right to fair hearing.
2. Whether the Court of Appeal rightly held that the Federal High Court lacked jurisdiction to entertain Suit No. FHC/PH/CS/296/2013 (Nicholas Chukwujekwu Ukachukwu Vs Dr. Tony Nwoye & 3 Ors) on the ground that it was an intra-party matter.

The 3rd respondent also distilled two issues from the grounds of appeal as follows:

1. Whether the Appellant’s right to fair hearing was breached in the circumstances when:

a. The Appellant’s Learned Counsel, Prince Orji Nwafor Orizu walked out of the Lower Court without leave, abandoned the Appellant’s Brief of Argument and refused to proceed with hearing thereby refusing to utilize the opportunity to present his client’s case.

b. The Court of Appeal took the Appellant’ Brief of Argument into consideration and used it in determining the appeal on the merit.

2. Whether the Lower Court was not right in holding that the complaint of the Appellant, as Plaintiff before the Court of first instance, did not fall within the ambit of Section 87 (9) of the Electoral Act, 2010, thereby rendering the case non-justiciable.

The 4th respondent adopted the two surviving issues formulated by the appellant. The appeal was determined on the two issues formulated by the appellant. At the hearing of the appeal Learned Counsel adopted and relied on their respective briefs of argument and made some additional submissions in further adumbration thereof. On the issue of fair hearing MR. J. B. DAUDU, SAN, learned counsel for the appellant, referred to the submissions contained at pages 15 – 18 of the appellant’s brief with particular emphasis on page 16. On the issue of jurisdiction he submitted that the trial court had jurisdiction to entertain the suit on the strength of Section 87 (9) of the Electoral Act 2010 (as amended). He argued that there is no distinction in the provision between pre-primary issues and issues that arise during the conduct of the primaries. He submitted that an aspirant is entitled to complain if he believes that his party’s guidelines have been breached. He submitted that in the instant case payment of tax constitutes part of the 1st respondent’s guidelines and that a party is entitled to seek redress if the said guidelines have been breached. He submitted that the Lower Court erred in holding that the Federal High Court lacked jurisdiction to entertain the mater. He urged the court to allow the appeal.

In addition to the arguments contained in the 1st and 2nd respondents’ brief, CHIEF JOE-KYARI GADZAMA, SAN submitted, on the issue of fair hearing, that having regard to the facts and circumstances of the case, it is the respondents who ought to complain when learned counsel for the appellant walked out the court unceremoniously. On the Lower Court’s adoption of the appellant’s brief of argument even though counsel was not present and his application had been struck out, learned senior counsel cited the cases of UBA Vs Nwaora (1978) NSCC (Vol.11) 519 @ 585 and Nwankwo Vs Kanu (2010) 6 NWLR (Pt.1189) 62 @ 91 on the exercise of the court’s discretion, where a process before it is irregular, to deem it as properly filed. He relied on the combined effect of Order 18 Rule 9 (4) and Order 20 Rule 3 of the Court of Appeal Rules 2011. On the issue of jurisdiction he contended that Section 87 (9) of the Electoral Act envisages a distinction between eligibility to contest, which is a pre-primary issue and the actual selection of the candidate to participate in the election. He contended that in the instant case there is no allegation against the conduct of the election. He submitted that where there are conflicts between a party’s guidelines and the law, the guidelines would be invalid to the extent of the inconsistency. He cited several cases on the conditions to be satisfied before a person could be said to have paid his taxes “as and when due” and submitted that none of the conditions was proved. He urged the court to dismiss the appeal and affirm the judgment of the Lower Court.

MR. G. S. PWUL, SAN, learned counsel for the 3rd respondent aligned himself with the submissions of learned senior counsel to the 1st and 2nd respondents. On the issue of fair hearing he submitted that the only duty of the court is to afford a party the right to be heard. He submitted that it could not force the party to avail himself of the right. He referred to page 9 of his brief and the authorities cited on the point. On the issue of jurisdiction he submitted that Section 87 (9) of the Electoral Act is designed to protect the winner of the primary and not to give an advantage to the loser. He submitted that even if an irregularity exists, the remedy of the aggrieved person is in damages as the court cannot compel a party to sponsor a candidate. He noted that the Lower Court did not shut out the appellant as it went ahead to consider the case on its merits and held, rightly in his view, that the 3rd respondent rightly emerged as the winner of the primary. He submitted that there is a presumption that the decision is correct and that no cogent reason has been advanced to set it aside. He urged the court to dismiss the appeal and affirm the judgment of the Lower Court.