Umar Isa V. Congress For Progressive Change (CPC) & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A.(Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court, Kaduna Division delivered on the 25th July, 2011 in suit No. FHC/KD/CSP30/2011. The record of this appeal reveals that by the Originating Summons dated the 14th February, 2011 and issued on the 17th February, 2011, the Appellant and three other persons commenced legal proceedings against the Respondents by seeking thus:

“1. A declaration that the conduct of the 1st Defendant purported Primary Election for the Federal House of Representatives, Kaduna South Federal Constituency on the 11th, 12th, and 14th January, 2011 is null and void having been carried out in breach of the mandatory provisions of the Electoral Act, 2010 and the Constitution of the 1st Defendant, 2010 and guidelines for primary election of the 1st Defendant 2010.

2. An order setting aside the purported election of the 6th Defendant as the candidate of the Federal House of Representatives, Kaduna South Federal Constituency of the 1st Defendant for the purpose of the general elections.
3. An Order directing the 5th Defendant to decline to accept the nomination and or reject the nomination of the 6th Defendant as the candidate for the Federal House of Representatives, Kaduna South Federal Constituency of the 1st Defendant in Kaduna South pursuant to the purported primary election of the 1st Defendant on the 11th, 12th, and 14th January, 2011 for the purpose of the general elections.
4. An order directing the conduct of Federal House of Representatives, Kaduna South Federal constituency primary elections of the 1st Defendant in Kaduna South in strict compliance with the Electoral Act, 2010 and the constitution of the 1st Defendant 2010 and guidelines for primary election of the 1st Defendant 2010 with same aspirants who duly purchased the nomination forms of the 1st Defendant including the Plaintiffs.”

The lone question posed by them for determination therein is; “whether the purported conduct of Federal House of Representatives, Kaduna South Federal Constituency Primary Election of the 1st Defendant for the election of the Federal House of Representative flag bearer of the 1st Defendant in Kaduna South which was purportedly conducted on 11th, 12th, and 14th January, 2011 wherein the 6th Defendant was said to have emerged is valid having regard to the fundamental breaches of the provisions of the Electoral Act, 2010 the 1st Defendant constitution 2010 and Electoral guidelines for primary elections , 2010 of the 1st Defendant in the processes leading to and during the conduct of the said Federal House of Representatives, Kaduna South Federal Constituency primary election of the 1st Defendant in Kaduna South.”

The Originating Summons was supported by an affidavit of 30 paragraphs deposed to by one Sadisu Ibrahim Esq.; one of the Counsel in Messrs Al-lhasan Chambers representing the Plaintiffs. The facts asserted therein were buttressed by several documentary evidence annexed thereto as Exhibits ‘1’ – ’18’. A written address in support of the Originating Summons was filed along with the same. The 1st, 3rd and 4th Respondents filed a counter-affidavit of four paragraphs sworn to on 4/4/2011 by one Segun Taofio, a Litigation Secretary in the Chambers of Messrs Habeeb & Co. which had attached to it, Exhibits “A”, “A1”-“18”. Also filed along with their counter-affidavit was the Written Address of their Counsel in support of their counter-assertions. The 6th Defendant, also, filed a Counter-affidavit of 14 paragraphs sworn to by himself on the 14th March, 2011 which was supported by one documentary evidence marked as Exhibit ‘A’. A written address was filed by its Counsel, O. I. Habeeb Esq. The Plaintiffs, including the Appellant, filed a Further and Better Affidavit of six paragraphs in reply to the 1st, 3rd and 4th Defendants’ counter-affidavit together with a written Reply to their written Address dated 1/4/11.

However, a Preliminary Objection dated 6/6/2011 was filed on behalf of the 5th Defendant seeking for an order declaring that the 5th Defendant was not a necessary party to the suit. The objection was supported by an affidavit of fourteen paragraphs. The legal points rationalizing the 5th Defendants contention were articulated in the written address of its learned Counsel; Mrs. Julis Utuh, and A. I. Lemu Esq.

Furthermore, by a Motion on Notice dated the same 6/6/2011, the 5th Defendant’s Counsel applied for an extension of time for the 5th Defendant to file its counter-affidavit to the Originating Summons out of time and for an order deeming the fourteen paragraph counter-affidavit dated the same 6/6/2011, already filed as duly filed and served. A Further and Better Affidavit of five paragraphs was filed by the Plaintiffs in response to the 6th Defendant’s counter-affidavit with Exhibits ‘D’ and ‘D1′ annexed thereto.

The Plaintiffs’ Reply to the Written Address of the 6th Respondent is dated the 14th March, 2011. The Plaintiffs also filed a Counter-affidavit of five paragraphs sworn to on the 13th June, 2011, to the 5th Respondent’s Preliminary Objection dated 6/6/2011 together with a Written Address dated the same day. The 6th Defendant, also, filed a Motion on Notice dated the 4th March, 2011 praying the lower Court for an order striking out the suit on the ground that the Plaintiffs have not exhausted the internal remedy for the resolution of the instant dispute as required by the relevant Rules and Guidelines of the 1st Defendant, secondly; the action is premature and therefore incompetent, and thirdly, that the Court lacked the jurisdiction to entertain the suit.

The Plaintiffs, then, registered their strong opposition to the said Motion via their counter-affidavit of six paragraphs sworn to by one Munirat Muhammed Ahmed, a Litigation Secretary in the Chambers of Messrs Al-lhasan, Counsel for the Plaintiffs. A written address was equally filed on their behalf in reply to the submissions made on behalf of the 6th Defendant in support of the said Motion. All the proceedings in respect of all the processes filed were heard together by the trial Court, at the end of which it expressed thus:

“I have held elsewhere in this judgment that the suit was improperly commenced and that the appropriate consequential order would have been to convert the suit and request parties to file pleadings. However, the Court has found as a fact that the Plaintiffs did not exhaust the internal remedies provided under the 1st Defendant’s Guidelines which means that the action is incompetent. That being the case, the jurisdiction of this Court has not been activated. Consequently, the suit is hereby struck out.”

The Appellant was distraught with the said decision that he, alone, appealed against the same by a Notice of Appeal dated the 21st September, 2011 which was pivoted on five grounds of appeal signed by his Counsel, Chief Chris A. Ekhasemomhe. However, this Court noticed in the processes filed before it that the Appellant’s Brief of Argument was prepared by Dr. A. Amuda-Kannike, who incidentally adopted the said Brief at the hearing of this appeal. In the said Appellant’s Brief, only two issues were distilled from the five grounds of appeal raised by him in his Notice of Appeal. The issues are thus:

“1. Whether in view of the provision of Electoral Act, 2010 as amended, the learned trial Judge was correct when he struck out this suit on the ground that the 1st Respondent’s guidelines have not been complied with by the Appellant before approaching the Court for redress in this matter? This issue was distilled from grounds 1 and 2 of the grounds of Appeal.

2. Whether the striking out of the case by the learned trial Judge was not based on technicalities which is no longer relevant in Law? This issue was distilled from grounds 3, 4 and 5 of the grounds of appeal.”

The 1st – 4th Respondents in their Brief of Argument, also, formulated two issues for determination by this Court which they stated as follows:

“1. Whether the learned trial Judge was wrong when he held that the Appellant failed to activate the jurisdiction of the court without his exhaustion of the internal remedies provided by the Guidelines laid down by the 1st Respondent for conduct of its Primary Election?