IN THE COURT OF APPEAL OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
ON MONDAY, THE 9TH DAY OF JANUARY, 2023
BEFORE THEIR LORDSHIPS:
MUHAMMED LAWAL SHUAIBU JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ABDUL-AZEEZ WAZIRI JUSTICE, COURT OF APPEAL
APPEAL NO. CA/PH/545/2022
BETWEEN:
MORGAN TALBORT TOM WEST ========== APPELLANT
AND
1. SIMINIALAYI FUBARA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL === RESPONDENTS
COMMISSION (INEC)
4. SEN. (DR) IYORCHIA AYU
5. PROF. WALTER MBOTO
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal is against the Judgment of the Federal High Court, Port Harcourt Judicial Division (the lower court), Coram: Justice A.T. Mohammed, delivered on 04/11/2022, wherein the claim of the Appellant, as Plaintiff, was dismissed. The Appellant commenced his action by way of Originating Summons filed at the Federal High Court, Abuja, on 07/06/2022. The suit was ultimately fought on the basis of an Amended Originating Summons filed on 23/09/2022, without the word “Amended” annexed to the Summons as domiciled at pages 358 - 523 of the Record of Appeal, Volume 1. Before the lower court, the Appellant claimed against the Respondents sundry reliefs as follows:
The 1st, 2nd, 4th and 5th Respondents contested the action by filing counter affidavit and a preliminary objection challenging the competence of the Originating Summons. The Appellant not only joined issues with the preliminary objection, he also challenged the competence of the Respondents’ counter affidavit and preliminary objection by way of motion on notice. The 3rd Respondent did not file any process.
The facts of the case on appeal, which is amenable to easy comprehension, can be sketched thus: The Appellant was an aspirant at the Governorship primaries of the PDP, the 2nd Respondent, for Rivers State which was conducted on 25/05/2022 at Port Harcourt by a Committee headed by the 5th Respondent as the Chairman of the Gubernatorial Primary Election Committee for Rivers State. At the end of the primaries, the 1st Respondent was declared as the winner with 721 votes. Other aspirants, Isaac Kamalu, George Kelly, Tamunobaabo Danagogo, came 2nd, 3rd and 4th with 86 votes, 37 votes and 36 votes, respectively. The Appellant came 5th with four (4) votes. The case of the Appellant is that apart from himself and Mrs. Abie Hart, who scored no vote, none of the 14 other aspirants who contested the Governorship primaries of the 2nd Respondent was qualified to contest the primary election and that the votes were indiscriminately allocated to the aspirants. The Appellant contends before the lower court that there was non-compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022, the 2nd Respondent’s Constitution and its Electoral Guidelines for Primary Election, in the conduct of the primaries, which vitiated the entire exercise. Instances of disqualification and non-compliance cited by the Appellant are: Persons who were not delegates were given ballot papers to vote, large number of non-delegates invaded the venue of the primary election, the 5th Respondent compromised the process by allowing non-delegates to vote, delegates were not allowed to vote secretly, accreditation of delegates did not start until 5.42 pm when the Governor of Rivers State and his aides arrived the venue and made it rowdy, thereby intimidating the Appellant from protesting the irregularities in the process, no cubicle, space or table was provided for the delegates, the 1st Respondent was not a member of the 2nd Respondent as he was the Accountant General of Rivers State and did not purchase the 2nd Respondent’s exhibits CC and EE. Appellant maintained that he scored the highest valid votes. Further that he wrote a petition to the Gubernatorial Electoral Appeal Panel for Rivers State and personally took same to the 2nd Respondent’s Office at Wadata Plaza, Abuja, but the staff at the office of the 2nd Respondent’s Secretary refused to receive the letter from him. The 1st, 2nd, 4th and 5th Respondents contends the opposite of all that the Appellant stated. Their case is that the Appellant has waived his right by writing an undertaking not to challenge the outcome of the primary election. They also maintained that no petition was written to the Gubernatorial Electoral Appeal Panel by the Appellant as there is no evidence of acknowledgement of receipt of the letter. They contended that the Appellant has not exhausted the dispute resolution mechanism provided by the 2nd Respondent’s Constitution before instituting the suit at the lower court. The 1st, 2nd, 4th and 5th Respondents grounded their preliminary objection on the fact that the Originating Summons is incompetent for not containing the name and address of the Appellant, was not signed by a legal practitioner, it did not disclose a cause of action or reasonable cause of action and the facts are contentious, making Originating Summons unsuitable.
The lower court took all the processes filed by the parties together and in a considered Judgment, dismissed the claims of the Appellant. Aggrieved by the decision of the lower court in dismissing his action, the Appellant approached this court by way of a Notice of Appeal founded on ten (10) grounds of appeal filed on 17/11/2022. Briefs of Argument were filed and exchanged by the Appellant and the 1st, 2nd, 4th and 5th Respondents. Again, the 3rd Respondent did not file any process in this appeal.
The Appellant’s Brief of Argument in which nine (9) issues were formulated and settled by Catherine Alekiri Alete , led by Ibrahim Idaiye, MCIARB UK., was filed on 02/12/2022. The 1st, 2nd, 4th and 5th Respondents’ Brief of Argument settled by Okechukwu Omeodu, led by E.C. Ukala, SAN, containing a sole issue for determination, was filed on 09/12/2022. No Reply Brief was filed by the Appellant. At the hearing of the appeal on 15/12/2022, Catherine Alekire Alete adopted the Appellant’s Brief of Argument and urged the court to allow the appeal. On behalf of the 1st, 2nd, 4th and 5th Respondents, Okechukwu Omeodu moved a motion on notice filed on 09/12/2022 and duly served on the Appellant, seeking to strike out grounds 1, 3, 4 and 10 of the Notice of appeal for being incompetent, striking out issues 1, 2, 3, 4, 5, 6, 7, 8 and 9 formulated in the Appellant’s Brief for not being linked or tied to any of the 10 grounds of appeal, and for an order striking out the 10 grounds of appeal for being abandoned. Learned counsel also adopted the Brief of Argument of the 1st, 2nd, 4th and 5th Respondents in urging the court to dismiss the appeal.
In his Brief of Argument, the Appellant formulated the following 9 issues for determination:
The 1st 2nd, 4th and 5th Respondents couched their lone issue for determination in the following words:
“Whether in view of the reliefs sought in the Amended Originating Summons and the depositions in the Affidavit in support of the Amended Originating Summons at the lower court whether the learned trial court was justified in upholding the 1st 2nd, 4th and 5th Defendants’ motion challenging jurisdiction and dismissing the Plaintiff/Appellant’s suit for want of jurisdiction?”
Preliminary Objection.
Before delving into the substantive appeal, it is appropriate to treat the objection of the 1st, 2nd, 4th and 5th Respondents with a view to determining whether the objection filed by way of motion on notice will dispose-off the appeal. The grounds upon which the motion on notice was brought are as follows:
An affidavit of 10 paragraphs was sworn to by one R.W.B. Nnwoka, a Legal Practitioner in the Law firm of E.C. Ukala & Co., one of the Law firms representing the 1st, 2nd, 4th and 5th Respondents, and filed in support of the motion on notice. A written address was also filed along with the motion and affidavit in support. The Appellant did not respond to this application. The implication of the Appellant’s neglect/failure to contest the application by way of filing a written address and a counter affidavit is that he accepted the depositions in the supporting affidavit as true and also that he has nothing to urge against the application. The further implication is that the court will deem the facts in the uncontroverted affidavit as true and act upon it unless they are obviously false to the knowledge of the court. The failure of a party to deny/controvert the facts contained in a supporting affidavit, allows the court to conclusively hold that the said facts are admitted. The law on this point is trite, requiring no judicial authority to be cited in support, but for purposes of completeness, see the following: Ugwuanyi vs. NICON Insurance (2013) LPELR-20092 (SC) @ 47; Mabamije vs. Hans Wolfgang Otto (2016) LPELR-26058 (SC); Akiti vs. Oyekunle (2018) LPELR-43721 (SC); The Honda Place Ltd vs. Globe Motor Holdings Nig. Ltd (2005) LPELR-3180 (SC). The whole essence of a counter affidavit is to contradict an affidavit in support of an application, and where it is not filed, the facts in the affidavit are deemed admitted by the opposing party. In the circumstance, I take it that the Appellant has admitted the facts deposed to in the affidavit filed in support of the application of the 1st, 2nd, 4th and 5th Respondents, and I also take the facts deposed in the supporting affidavit as established, in the absence of any falsehood therein. This position notwithstanding, since the issues raised in the application are issues of mixed law and fact, I will now attempt to gauge the established facts with the law to determine the merits of the application.
Ground 1 of the application attacks the competence of grounds 1, 3, 4 and 10 of the Notice of Appeal for not questioning the ratio decidendi of the decision of the lower court. It is an elementary principle of law, settled a long time ago, that a ground of appeal must relate to the ratio decidendi of the judgment appealed against and not otherwise. Any ground of appeal that does not challenge the ratio decidendi of the decision appealed against is incompetent and irrelevant along with the issue distilled therefrom. See PDP vs. Sylva & Ors (2016) LPELR-42559 (SC); K.R.K. Holdings (Nig.) Ltd vs. FBN Ltd & Anor (2016) LPELR-41463 (SC); GTB Plc vs. Innoson Nig. Ltd (2017) LPELR-42368 (SC); Osaji vs. Nigerian Army (2022) LPELR-58816 (SC); Shuaibu Fulani Abdu vs State (2022) LPELR-57689 (SC); Haruna vs. Abuja Investment and Property Development Co. Ltd & Ors (2021) LPELR-58383 (SC).
Ground 1 of the Notice of Appeal challenges the opening statement in the Judgment of the lower court wherein the court stated that the Amended Originating Summons was filed on 23rd September, 2022. Throughout the length and breadth of the Judgment appealed against, the date the suit was instituted was not an issue for determination and was never the reason why the suit was dismissed by the lower court.
Ground 3 of the Notice of Appeal challenges the receipt of List of Additional Authorities from the 1st, 2nd, 4th and 5th Respondents. I outrightly sustain this objection because the receipt of additional authorities was not a ratio decidendi against which an appeal can be lodged. Besides, the Appellant has not shown how the List of Additional Authorities has negatively affected his case or that he suffered any prejudice as a result.
Ground 4 of the Notice of Appeal challenged the record of the lower court, not the Judgment appealed against. In sustaining this objection, I will state that the way and manner records of proceedings are challenged is distinct from what the Appellant attempted to do here. In any case the record in question did not form part of the ratio decidendi of the Judgment of the lower court as to entitled the Appellant to appeal against.
Ground 10 of the Notice of Appeal challenged the failure of the lower court to rule and decide on the Appellant’s motion which challenges the competence of the counter affidavit and preliminary objection of the 1st, 2nd, 4th and 5th Respondents. This ground of appeal is competent because it queries the failure of the lower court to determine a pending application which would have had a bearing on the competence of the Respondents’ preliminary objection upon which some of the decisions of the lower court were predicated. Ground 10 is therefore a good and valid ground of appeal. On the whole, I sustain the objection to grounds 1, 3 and 4 of the Notice of Appeal as they are not predicated upon a ratio decidendi of the Judgment appealed against. The said grounds of appeal are therefore struck out. In the same vein, issues 1, 3 and 4 formulated by the Appellant from the said grounds of appeal are also struck out for being incompetent. However, for the reason advanced earlier, objection to ground 10 of the Notice of Appeal is discountenanced and dismissed.
The second ground of objection concerns the non-linking of the 9 issues for determination formulated by the Appellant to the ground of appeal, just as no reference was made by the Appellant to any ground of appeal in the course of arguing the issues for determination. Counsel submitted that the legal effect of not linking or tying the issues for determination to any of the grounds of appeal is that the issues are incompetent and liable to be struck out because appeals are argued on the basis of issues for determination. Reliance was placed, among others, on Dukuye vs. Ebere (2021) LPELR-54819 (CA); Olayemi vs. FHA (2022) LPELR-57579 (SC) @ 47-48. The law is settled that an issue for determination must be distilled from a valid ground of appeal and any issue that does not relate to, nor arise from a ground of appeal, is incompetent and irrelevant in the determination of the appeal. See A.G. Lagos State vs Eko Hotels Ltd & Anor (2006) LPELR-3161 @ 47; C.O.P. vs. Ogor & Ors (2022) LPELR-57558(SC). In framing issues for determination from the grounds of appeal, there is always the need for the Appellant to link or tie the issues so framed or formulated to specific grounds of appeal in the event of challenge to the competence of the issues by the adversary, as we are currently confronted in the instant appeal. While it is the usual practice and therefore desirable for the Appellant to link issues for determination to particular ground or grounds of appeal, I hold the considered view that failure to specifically link the issues for determination with the grounds of appeal will not be fatal to the appeal, so long as the issues formulated for determination can be traceable to the valid grounds of appeal, and the Respondent has not shown that he was misled by such failure. I will therefore not strike out the valid issues for determination and the valid grounds of appeal from whence they were derived.
As a corollary to my finding and decision on the 2nd ground of objection, I hold in respect of the 3rd ground of objection that only three grounds of appeal, i.e., grounds 1,3 and 4 of the grounds of appeal are struck out for reason that the said grounds did not challenge the ratio decidendi of the Judgment on appeal. The remaining grounds 2, 5, 6, 7, 8, 9 and 10 are valid and not abandoned, as issues were formulated therefrom, even though not specifically linked to each ground, as desirable as that may be. The objection of the 1st, 2nd, 4th and 5th Respondents by way of motion on notice only partially succeeds in terms of the decision reached supra.
The substantive appeal
In my considered view, the issue that calls for determination in this appeal can be framed thus:
Whether from the facts disclosed in/by the opposing affidavits of the contesting parties, vis-à-vis the reliefs sought by the Appellant, the lower court was right in dismissing the suit of the Appellant.
I will treat this issue under five major sub-heads.
The lower court held that there was no proof that Ibrahim Idaiye, MCIARB, UK, who signed the Amended Originating Summons is the same person as Idaiye Ibrahim Owajibe, whose stamp and seal was affixed to the Amended Originating Summons. The implication of that finding is that the Amended Originating Summons was not signed by a person qualified to practice as Legal Practitioner. The conclusion was reached by the learned trial Judge after considering the submissions of counsel and citing relevant provisions of the Legal Practitioners Act. I have noted the arguments canvassed by learned counsel for the two contending parties in this appeal. I will go straight into the sub-issue. The law on how to sign originating and other court processes in order to make them competent and valid, is now firmly settled. It is trite law that court processes can only be signed by the litigant himself or by a Legal Practitioner engaged by him. Section 2 (1) of the Legal Practitioners Act, provides that a person shall be qualified to practice as a Barrister and Solicitor only if his name is on the Roll of Legal Practitioners in Nigeria. Section 24 of the same Act defines Legal Practitioner to mean “a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Solicitor, either generally or for the purpose of any particular office or proceedings.” Any person whose name is not on the Roll of Legal Practitioners in the Supreme Court is not qualified to practice as a Legal Practitioner in Nigeria and therefore not qualified to sign court process on behalf of a litigant. See Okafor vs. Nweke (2007) LPELR-2412 (SC); FBN Plc vs. Maiwada (2012) LPELR-9213 (SC); (2012) 5 SC 1; Oketade vs. Adewunmi (2010) 8 NWLR (Pt.1195) 63; Williams & Anor vs. Adold/Stamm International Nigeria Ltd (2017) LPELR-41559 (SC); Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562 (SC); Arueze & Ors vs. Nwaukoni (2018) LPELR-46352 (SC); Ajibode & Ors vs. Gbadamosi & Ors (2021) LPELR-53089 (SC); Yongo & Ors vs. Hanongon & Ors (2022) LPELR-57282 (SC).
While providing a guide on how valid court processes are to be signed by Legal Practitioners, the Supreme Court, Per Rhodes-Vivour, JSC, in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 said:
“All processes file in court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, name and address of Legal firm.”
The effect and direction of the provisions of the Legal practitioners Act and the construction of the Apex Court in respect thereof was made clear in the dictum of Ogunbiyi, JSC, in OKARIKA v. SAMUEL (2013) LPELR- (19935) 1 at 30-31 as follows:
"The combined effect of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation as interpreted in the decision of this Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 52 has given a very clear and succinct definition of a person entitled to practice as a Barrister and Solicitor. By this definition, it is obvious that the category of persons recognized as authentic must be those circumscribed within the provisions of the law. It is not an open cheque or a floodgate for any person outside the profession to usurp the power which is so restrictive."
It seems clear therefore that the provisions of the Legal Practitioners Act are meant to prevent impostors who are not legal practitioners from holding themselves out and carrying on business as Legal Practitioners, not meant to shut the doors of the court against those Legal Practitioners who abbreviate their names or omit a part of their names. Looking at the Appellant’s Amended Originating Summons copied at pages 358 – 523, particularly at page 360 of the Record of Appeal, it is clear that it was signed by one Ibrahim Idaiye, MCIARB, UK, as counsel for the Plaintiff, with his address being 5, Agadez Street, Wuse II, Abuja – FCT. The NBA stamp affixed to the process bears the name “Idaiye Ibrahim Owajebi” with Supreme Court enrolment number “SCN030651”. The only borne of contention is that the name as written on the Amended Originating Summons does not represent the name of a Legal Practitioner called to the Nigerian Bar. In a counter affidavit in opposition to the Notice of Preliminary Objection filed before the lower court and deposed to by Morgan Talbort Tom West, the Appellant herein, copied at pages 1074 – 1077 of the Record of Appeal, the deponent deposed to information made available to him by his Solicitor that the Solicitor is the same person as Idaiye Ibrahim Owajibe who was called to the Nigerian Bar. Hs certificate of Call to the Bar was annexed to the counter affidavit as exhibit AA at page 1077 of the Record. A look at exhibit AA shows that the name thereon is ‘Ibrahim Owabije Idaiye’. This therefore means that in writing his name as Ibrahim Idaiye on the Amended Originating Summons, the Appellant’s counsel only omitted his middle name ”Owajibe” and added a suffix or acronym ‘MCIARB UK’. By writing his name as Ibrahim Idaiye without ‘Owajibe’ in between ‘Ibrahim’ and ‘Idaiye’, does that make the Appellant’s counsel unqualified to practice law after annexing his Certificate of Call to the Bar to the counter affidavit in opposition of the Notice of Preliminary Objection? I think not. The learned trial Judge seems not to have adverted his attention to exhibit AA annexed to the Appellant’s counter affidavit, which is a proof that counsel who signed the court process in contention was called to the Nigerian Bar. It is inconceivable that a counsel with three names, duly called to the Nigerian Bar, who signs a document with two of his names without the 3rd or middle name, would be considered as not qualified to practice law on account of the omission of his 3rd or middle name on the process signed by him. When confronted with a similar scenario in the case of Abubakar vs. Dankwambo & Ors (2015) LPELR-22698 (CA), this court, per Ogunwumiju, JCA (as he then was) held:
"Precedents are followed on the basis of facts and law they interpreted. It is a restrictive and punitive interpretation of Section 2 of the Legal Practitioners Act to hold that the only person whose appearance can be countenanced by the Court must be the same person who signed processes and whose names appeared on the Roll as Samuel Peter Kargbo, and that the contemplation of the Legal Practitioner Act is that Counsel MUST only file processes and announce appearance only as exactly as their names appear on the Roll leaving no room for abbreviation of such a name. The argument of learned 1st Respondent Counsel that if Sam Karagbo instead of Samuel Peter Kargbo is allowed to practice law, every Nigerian Lawyer called to the Bar will be allowed to jettison his name on the Roll of Lawyers and use different names or alias in different processes and proceedings is disingenuous at best…. The tradition at the Bar and Bench cannot be swept off so lightly. Most Lawyers drop their full names and use abbreviations or initials to announce their appearance and sign Court processes. That has always been acceptable so long as they are juristic persons who had been called to Bar. This has been settled beyond doubt by Hamzat vs. Sanni (2015) LPELR (24302) 1 delivered by the Supreme Court. See OKAFOR V. NWEKE (2007) 10 NWLR PT. 1043 pg. 521. The present legal names of most women Lawyers who married after call to Bar are not on the Roll of Legal Practitioners. Their married name is their Legal names now. If the argument were allowed to hold, eighty percent of processes in law Courts today all over the country will be rendered incompetent. I cannot fathom how and why the Tribunal can countenance the argument of the Respondents given the nature and circumstances of this case being an election petition. It is a preposterous enthronement of technicality over substantial justice. The purpose of Section 2 and Section 24 of the Legal Practitioners Act is to exclude anyone from practicing as a Barrister and Solicitor who had not been called to the Bar and whose name had not been enrolled as a Solicitor and Advocate of the Supreme Court of Nigeria. There was no doubt that Counsel who appeared before the Tribunal was a Barrister and Solicitor duly enrolled to practice law before the Courts in Nigeria. Counsel's affidavit to that effect was never countered.”
In the same vein, the deposition in the counter affidavit in opposition to the Preliminary Objection as it relates to the fact that the Appellant’s counsel was duly called to the Nigerian Bar, was never countered, but the lower court regrettably failed to take that into consideration. In affirming the decision of this court in the above cited case, the Supreme Court, in the case of Dankwambo vs. Abubakar (2015) LPELR- 25716 (SC), endorsed the entire reasoning of this court in holding that Sam Kargbo, who signed the Petition before the Tribunal is the same person as Samuel Peter Kargbo. In the circumstance, I hold that Ibrahim Idaiye, who signed the Amended Originating Summons is the same person as Ibrahim Owajibe Idaiye as contained on the call to Bar Certificate and Iaiye Ibrahim Owajibe as written on the NBA stamp and seal affixed to the Amended Originating Summons.
On the use of the appellation or suffix ‘MCIARB, UK’, written after the name ‘Ibrahim Idaiye’ on the Amended Originating Summons, the said appellation is not part of his name as it is separated from the name by a coma, suggesting that it is a title of sort, just like Esq, SAN, Ph.D, etcetra, written by some persons, including Lawyers and Judges after their names. There is nothing strange about it. I think the learned trial Judge has exhibited crass ignorance when he merged both the name of counsel and the suffix after the name and considered it as part of the name of counsel, in order to arrive at the conclusion that Ibrahim Idaiye, MCIARB, UK is not a qualified legal practitioner. ‘MCIARB UK’ is an acronym for Member, Chartered Institute of Arbitrators, United Kingdom, a suffix given to persons who obtained Advanced Certificate in Arbitration from the Institute after a competitive examination. I have personally been such a member since 2014 and have been using the suffix MCIArb, after my name anytime I feel like or when the occasion demand. The learned trial Judge was in grave error when he held that Ibrahim Idaiye, who signed the Amended Originating Summons is not the same person whose name appear on the NBA Seal affixed thereon and therefore not qualified to sign the said court process. In resolving this sub-issue in favour of the Appellant and setting aside the decision of the lower court on the competence of Ibrahim Idaiye, MCIARB UK, to sign the Amended Originating Summons as counsel to the Plaintiff, now Appellant, I will conclude with the words of my learned brother, Ogakwu, JCA, in Abubakar vs. Dankwambo & Ors (supra), where he postulated thus:
“May the day never come when a legal practitioner would be denied audience in court or the proceedings he conducted in court be set aside and expunged, not because he is not a legal practitioner but because he did not announce appearance in exactly the same names in which he enrolled. Banish the thought Verily may that day never come.”
In its judgment copied at page 1169 of the Record, the lower court while resolving issue 1 before it found as follows: “In the same vein, the full name and address of the Plaintiff is not also stated in the amended originating summons in accordance with Order 4 rule 1 of the rules of this court. In view of the above findings therefore, issue 1 is resolved in favour of the 1st, 2nd, 4th and 5th Defendants/Applicants. I so hold.” For purposes of clarity, issue 1 that was resolved by the lower court in favour of the 1st, 2nd, 4th and 5th Defendants, reads – “Whether the amended Originating Summons by which the Applicant/respondent commenced this suit is not defective and incompetent and consequently incapable of invoking the jurisdiction of this Honourable Court?”
By its resolution of issue 1 in favour of the 1st, 2nd, 4th and 5th Defendants before it, the lower court has concluded that the Appellant’s action was defective, incompetent and incapable of invoking the jurisdiction of the lower court due to the absence of the full name and address of the Appellant on the Amended Originating Summons and the fact that the counsel that signs the Originating Summons is not a Legal Practitioner. I have already resolved the issue of counsel. In attacking the finding of the lower court, learned counsel for the Appellant submitted that non-compliance with the provisions of Order 4 Rule 1 of the Federal High Court (Civil Procedure) Rules is a mere irregularity and that the absence of the name and address of the Appellant on the Amended Originating Summons cannot render it incompetent since the name and address of counsel to the Plaintiff/Appellant is on the process. He cited and relied on Ofuegbunam vs. Okongwu (2018) LPELR-45086(CA); Eboh & Ors vs. Akponu (1968) 1 ALL NLR 220. Citing Order 51 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019, counsel urged the court to treat the failure to write the name and address of the Appellant on the Amended Originating Summons as an irregularity which cannot nullify the proceedings. On his part, learned counsel for the 1st, 2nd, 4th and 5th Respondents argued that the absence of the name and address of the Appellant on the Amended Originating Summons is a violation of the mandatory provisions of Order 4 Rule 1 of the Federal High Court Rules, 2019 and therefore not a mere irregularity as submitted on behalf of the Appellant. He submitted that stating the name and address of the Plaintiff on the originating process is the only way of knowing whether the Plaintiff resides within jurisdiction, and that the absence of such particulars is fatal to the competence of the suit, placing reliance on Equity Bank of Nigeria Ltd vs. Halilco Nigeria Ltd (2006) ALL FWLR (Pt.337) 438 @ 452; Ibeke vs. Nzegwu & Ors (2017) LPELR-43056 (CA) @ 7-12; Kida vs. Ogunmola (2006) ALL FWLR (Pt.327) 402 @ 417.
Now, Order 4 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019, provides:
“An originating process shall contain the claim, the relief or remedy sought and the full name and address of the Plaintiff.”
It is not in dispute between the parties that the Amended Originating Summons filed on 23/09/2022 upon which the suit was fought at the lower court did not contain the name and address of the Plaintiff/Appellant. What this court is called upon to determine is the effect of such omission on the Appellant’s suit. Generally, speaking, Rules of Court are made to be obeyed and followed because they regulate the smooth conduct of proceedings in court thereby ensuring quicker or faster justice delivery. The court is expected to apply the Rules to the advancement of substantial justice. See Asika & Ors vs.Atuanya (2013) LPELR-20895 (SC); Ifeanyichukwu Trading Investment Ventures Ltd & Anor vs. Onyesom Community Bank Ltd (2015) LPELR-24819 (SC); Duke vs. Akpabuyo Local Government (2005) LPELR-963 (SC). It is also the law that any non-compliance with the Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice; Famfa Oil Ltd vs. Attorney General of the Federation & Anor (2003) LPELR-1239 (SC). In other words, non-compliance with any Rules of Court does not generally, render the proceeding void. However, non-compliance with Rules of Court which affects the foundation, the pedestal or props of a case cannot be treated by the court as an irregularity. Once the degree of non-compliance with the Rules affects the substance of the matter to the extent that the merits of the case are ruined or will be jeopardized, then it is impossible to salvage the proceedings in favour of the party in default. See Mobil Producing (Nig) Unlimited & Anor vs. Monokpo & Anor (2003) LPELR-1886 (SC). Where, on the other hand, the non-compliance with Rules is intangible, peripheral, non-substantial and did not affect the merits of the matter, it will be treated as a mere irregularity and will not vitiate the proceeding. See Ezea vs. Ugwuanyi & Ors (2015) LPELR-40644 (CA). This is the very essence of Order 51 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019, which provides:
“Where in commencing or purporting to commence any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, Judgment or order.”
Therefore, if, as submitted by counsel to the 1st, 2nd, 4th and 5th Respondents, that the purpose of having the name and address of the Appellant on the Amended Originating Summons is to determine whether or not the Appellant resides within jurisdiction, the name and address of counsel boldly written on the originating process and the Affidavit sworn to by the Appellant in support of the Amended Originating Summons, which expressly stated the residential address of the Appellant in Rivers State, have satisfied this requirement. What is more, the absence of the name and address of the Appellant is a peripheral, inconsequential and marginal matter that did not go to the substance of the suit as to affect the jurisdiction of the lower court to adjudicate on same. The current state of our adjectival law is more in favour of forgiving non-compliance with Rules of Court, particularly in situation where waiving the non-compliance will be in the interest of justice. I do not think the intention of Order 4 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019 is to punish a Plaintiff who omits to write his name and address on the originating process, choosing, as in the instant case on appeal, to write the name and address of counsel representing him, instead. It will be a different consideration if both the name and address of the Plaintiff and that of his counsel are omitted on the originating process, as is the case with the authority of Equity Bank of Nigeria Ltd vs. Halilco Nigeria Ltd (supra) cited and relied upon by learned counsel to the 1st, 2nd, 4th and 5th Respondents. That authority is clearly distinguishable from what obtain in the instant case. In the circumstance, I rule that the absence of the name and address of the Appellant on the Amended Originating Summons did not render same incompetent as wrongly held by the trial court.
In resolving this sub-issue in his judgment, the learned trial Judge held at pages 1172 – 1173 of the Record of Appeal, Volume 2, as follows:
“… with the withdrawal of reliefs (c), (d) and (e) of the reliefs sought and the abandonment of paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 42, 43, 44 and 45 of the Plaintiff/Respondent’s affidavit in support of the originating summons, the events giving rise to the Plaintiff/Respondent’s cause of action, in the circumstance of the case, has become incomplete to maintain the cause of action against the Applicants. Even assuming that the paragraphs of the affidavit under reference were to be not abandoned, by the averments of the Plaintiff in paragraphs 27, 29 and 35 thereto, the action would still have been incomplete for failure to join persons whom allegations were made against and/or who are necessary for the effectual and complete determination of the case.”
I have noted the opposing arguments of counsel against the above finding of the lower court and in support of it, and I will have recourse to the relevant portions in my resolution.
A cause of action is the fact or aggregate of facts, which establish or give rise to a right of action. It is a factual situation, which gives a person a right to judicial relief. It is thus the factual situation stated by the plaintiff which if proved, will entitle him to a remedy against the Defendant. See A.G. Adamawa State vs. A.G. Federation (2014) LPELR-23221(SC); Maza vs. Awuna (2022) LPELR-58909 (SC); Uwazuruonye vs The Governor of Imo State & Ors (2012) LPELR-20604 (SC); Ajuwon & Ors vs. Governor of Oyo State & Ors (2021) LPELR-55339 (SC); Nworika vs. Ononeze-Madu (2019) LPELR-46521 (SC). The lower court held that with the withdrawal of some listed paragraphs of the Appellant’s affidavit in support of the Originating Summons, his cause of action became incomplete. The question that begs for an answer at this juncture is; what are the aggregate of facts that will give an aspirant in a pre-election suit a cause of action or reasonable cause of action? My view is that a member of a political party who purchased expression of interest/nomination form of his political party to contest primaries for a particular office, underwent a successful screening, became an aspirant in the party’s primary election, contested the primaries and lost, and his complaint before the court concerns non-compliance with the provisions of the Constitution of the federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022 or the Constitution and Guidelines of his political party for the conduct of that particular primary election, is said to have a valid and reasonable cause of action to ventilate his grievances in court. The doors of the court cannot be shut against such a person either on account of cause of action or on account of locus standi. Assuming that Appellant’s counsel has the legal authority to withdraw some paragraphs of an affidavit duly sworn to, as he attempted to do and as he was obliged by the lower court despite objection from the Respondent’s counsel, can it be correctly said that the remaining paragraphs of the Appellant’s affidavit in support of the Amended Originating Summons do not disclose a cause of action accruing to the Appellant? Let us now take a short excursion into the remaining paragraphs of the Appellant’s affidavit. In doing so, I am not saying that the lower court was correct in striking out some paragraphs of the affidavit, which are legal evidence before the court, but since no appeal was lodged against that decision by either of the parties, perverse and gravely wrong as the decision was, I hold my peace, I say no more.
The Amended Originating Summons colonized pages 358 – 523 of the Record of Appeal. Paragraphs 1 & 2 of the affidavit at page 362 of the Record shows that the Appellant is a card-carrying member of the 2nd Respondent. Paragraphs 11 – 20 of the Affidavit explained how the Appellant bought the nomination form of the 2nd Respondent and was screened to contest for the Governorship primary election of the 2nd Respondent in Rivers State. In paragraphs 21, 22 and 23 of the Affidavit, the Appellant deposed to the fact that he contested the primaries and scored 4 votes. He also complained in paragraph 23 that the delegates were not allowed to cast their votes. In paragraphs 24, 25 and 26 of his Affidavit, the Appellant accused the 5th Respondent (The Returning Officer for the Governorship Primary Election in Rivers State) of adopting a wrong procedure of voting at the primary election, thereby compromising the process. It is apparent from the depositions in paragraphs 1 – 26 of the Affidavit (which have not been withdrawn or abandoned), that the Appellant has disclosed sufficient facts to constitute reasonable cause of action to enable him file this action at the lower court. Appellant further deposed to the efforts made by him to file his appeal against the conduct of the primaries before the Parties Appeal Committee at Wadata Plaza, Wuse Zone 5, Abuja, without success. See paragraphs 48, 49 and 50 of the Affidavit at page 367 of the Record. He maintained at paragraph 46 of the Affidavit that he scored the highest number of lawful votes in the primary election, and at paragraph 47 that the result of primary election was declared at 8.15pm on 25/05/2022 by the 5th Respondent.
My lords, if the aggregate of facts highlighted above, do not give the Appellant reasonable cause of action to sue, I do not know what would. The lower court merely scratched the surface of the Appellant’s Affidavit to arrive at the wrong conclusion that the Appellant’s cause of action is incomplete in view of the abandonment of paragraphs 27 – 35 and 42 – 45 of the Appellant’s Affidavit. The lower court was also wrong in linking the non-joinder of necessary parties to completeness of cause of action. They are two different legal concepts and are mutually exclusive, one cannot be imported into the other. The lower court failed to discharge its duty of properly evaluating the facts before it before jumping to the wrong conclusion on cause of action. Even with the withdrawal of reliefs (c) and (d) the other reliefs (a), (b), (e) (f), (g), (h) and (i) can sustain the Appellant’s action before the lower court. There is nothing on Record, particularly at page 1132 thereof, to show that the Appellant withdrew relief (e), as counsel only admitted withdrawing reliefs (c) and (d). Without hesitation, I also resolve this sub-issue in favour of the Appellant.
Appellant’s counsel argued that the lower court’s failure to determine, in its judgment, the Appellant’s motion challenging the competence of the 1st, 2nd, 4th and 5th Respondent’s counter affidavit and preliminary objection which was moved on 13/10/2022, one way or the other, is an outright infringement of the Appellant’s right to fair hearing. He submitted that a court is under an obligation to hear and determine every application filed before it notwithstanding that the application is outrightly frivolous, vexatious, stupid, irregular or patently irritating, citing FAAN vs. WES (NIG) Ltd (2011) 8 NWLR (Pt.1249)219 @ 237; Ani vs. Nna (1996) 4 NWLR (Pt.440) 101 @ 120; Dingyadi vs. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1 @ 53; Mobil Oil (Nig.) Unlimited vs. Monokpo (2003) 18 NWLR (Pt.852)346 @ 413; A.G. Rivers State vs. A.G. Akwa Ibom State (2011) NWLR (pt.1248) 31 v@ 165; A.G. Federation vs NSE (2016) LPELR-40518 (CA). The court was urged to hold that the Appellant’s right to fair hearing was breached by the lower court and to proceed to determine the said motion in favour of the Appellant leaving the Respondents bereft of any defence to the Appellant’s suit. The court was also urged to proceed to declare the Appellant as the duly nominated candidate of the 2nd Respondent.
Learned counsel to the 1st, 2nd, 4th and 5th Respondents argued to the contrary, that the lower court heard all applications together with the substantive suit as required by the Rules of court but in delivering its judgment, ruled on the motion challenging its jurisdiction first; and having come to the conclusion that it lacks jurisdiction, the court declined to determine the substantive suit. On the need to resolve the issue of jurisdiction first in a suit commenced by way of Originating Summons, counsel referred the court to Ofioguma & Anor vs. Ibuje & Anor (2022) LPELR-58394 (CA); Names Unknown vs. Sahris Int’l Ltd (2019) LPELR-49006 (SC). Counsel urged the court to discountenance the submission of the Appellant on this point and uphold the decision of the lower court. He argued that Appellant’s prayer that he should be declared the nominated candidate of the 2nd Respondent is without basis and therefore un-grantable, in that the merit of the substantive matter was never considered and there was no finding or decision on the merit of the case on the basis of which this court can determine the correctness or otherwise of the decision of the court below. Further that there was no ground in the Appellant’s Notice of Appeal challenging the trial court’s failure to determine the merit of the substantive Amended Originating Summons, relying on Dabo vs. Abdullahi (2005) LPELR-903 (SC); Funtaji Int’l Sch. Ltd vs. GTB Plc (2022) LPELR-58143 (CA), on the legal proposition that a decision that is not challenged in the Notice of Appeal is deemed accepted. It was further submitted that this court cannot invoke its power under section 15 of the Court of Appeal Act because the conditions for such invocation have not been met, as there is no complaint by the Appellant on the failure of the lower court to determine the merits of the case; that in the event the appeal succeeds, this court can only remit the case back to the lower court to resolve the substantive suit on the merits.
Resolution
At pages 1097 – 1105 of the Record of Appeal is a motion on notice filed by the Appellant on 12/10/2022 seeking for an order setting aside the counter affidavit of the 1st, 2nd, 4th and 5th Respondents to the Amended Originating Summons as well as their motion on notice challenging the jurisdiction of the lower court to entertain the Appellant’s suit. At page 1132 of the Record, Appellant’s counsel moved the said application and learned senior counsel for the 1st, 2nd, 4th and 5th Respondents replied to same. At the introductory part of the Judgment appealed against, the trial Judge indicated his preference to first determine the preliminary objection of the 1st, 2nd, 4th and 5th Respondents as it touches on the jurisdiction of the court. The lower court then proceeded to determine the preliminary objection at the end of which the Appellant’s action was dismissed without the court touching on the merits of the substantive suit. Nowhere in the Judgment of the lower court was the Appellant’s motion challenging the counter affidavit and preliminary objection of the 1st, 2nd, 4th and 5th Respondents determined, one way or the other. Since the Appellant’s motion challenges, inter alia; the competence of the Respondent’s preliminary objection, it behoves the lower court to determine that application first before going into the preliminary objection whose competence is being challenged. The law is that whenever a preliminary objection is filed to the competence of a suit and jurisdiction of the court, the preliminary objection must first be taken and determined before the substantive suit. This is trite, requiring no citation of judicial authorities. However, where the competence of a preliminary objection to the jurisdiction of a court is challenged, the application challenging the competence of the preliminary objection must take precedence over the preliminary objection itself. The court has the bounden duty to determine such application first before taking the preliminary objection. It does not matter that the application challenging the competence of the preliminary objection is improper, irregular or even stupid, the court must determine it first before taking the preliminary objection. A court of law, particularly lower court, has a statutory duty to consider and decide all applications filed before it. Failure to do that will be tantamount to abdication of judicial duty and responsibility on the part of the court. The essence of considering and determining all issues raised before a court, including pending applications, is to accord with the principle of fair hearing as enshrined in our Constitution and to avoid the breach of a complaining party’s right to fair hearing. It will amount to a serious lapse in the performance of his judicial duty for a Judge to shy away from determining applications properly filed before him as done by the trial Judge in the instant case now on appeal. In the case of Odedo vs. Peoples Democratic Party & Ors (2017) LPELR – 24738 (SC), Ogunbiyi, JSC, held as follows:
"The general principle of law is trite and well established that all applications properly brought before a court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This re-iterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the proceedings, as it has been held in the case of Enebeli v. C.B.N. (2006) 9 NWLR (Pt. 984) 69 at 78. In other words, an application may not necessarily have merit, it may be bogusly and inelegantly framed or may even be frivolous; be that as it may, once it is shown that there is some legal basis for the application, the court is bound to hear it. It is not optional or discretional."
See also Abah vs. Monday & 3 Ors (2015) LPELR-24712 (SC); Long-John & Ors vs. Blakk & ors (!998) LPELR-1791 (SC); Dingyadi vs. INEC (2010) LPELR-40142 (SC); Mobil Producing (Nig.) Unlimited vs. Monokpo (2003) LPELR-1886 (SC).
In the recent case of Gidiya & Ors vs. Sanusi & Ors (2022) LPELR-58932 (SC), Abba Aji, JSC, quoting with approval the dictum of I.T. Muhammad, JSC (as he then was) in the case of FAAN vs. Wamal Express Services (Nig) Ltd (2011) LPELR-1261 (SC), held:
“It is the law that a court of law has neither jurisdiction nor discretionary power to refuse to take a pending process before it, whatever may be its pre-trial opinion on it. The process may be a downright abuse of the judicature as an institution. It may be stupid, reckless, irregular, aberrant or unmeritorious, but still, the court must hear it and rule on it.”
A deliberate failure by a court to consider all issues raised and applications filed before it amounts to a miscarriage of justice and a failure to perform a statutory duty. See Ovunwo vs. Woko (2011) LPELR-2841 (SC). The principle of fair hearing guaranteed by the Constitution demands that a court must hear, make a decision and pronounce on all applications properly brought before it. The lower court’s failure or refusal to decide or pronounce on the Appellant’s motion on notice filed on 12/10/2022 and moved/argued on 13/10/2022, amounts to a breach of the Appellant’s right to fair hearing. By deciding the preliminary objection of the 1st, 2nd, 4th and 5th Respondents against the Appellant when the Appellant’s motion challenging the said preliminary objection, duly moved before the court, was left undecided/undetermined, the lower court has acted in breach of the Appellant’s right to fair hearing guaranteed under section 36 (1) of the Constitution. The inevitable and attendant consequence of a breach of a party’s right to fair hearing, as settled in plethora of judicial authorities, is that it renders the proceedings, judgment or order null and void, as the breach affects the whole trial. See Nwabueze vs. The people of Lagos State (2018) LPELR-44113 (SC); Wagbatsoma vs. Federal Republic of Nigeria (2018) LPELR-43722 (SC); Oyeyemi vs. Owoeye (2017) LPELR-41903 (SC); Umeano & Ors vs. Anaekwe & Anor (2022) LPELR-56855 (SC). That is the fate that befalls the Judgment of the lower court on appeal to this court. That judgment is a nullity and I hereby declare it so.
In the event that my finding on this sub-issue is found, on appeal, to be wrong, I shall proceed to examine and decide on the last sub-issue.
From the tenor of this sub-issue, it is hydra-headed. I will treat the first part before the second. In its judgment, copied at page 1177 of the Record of Appeal, Volume 2, the lower court found, with reference to the deposition in paragraphs 48 and 49 and exhibit KK of the Appellant’s Affidavit in support of the Amended Originating Summons that there was no proof to show that the Appellant has exhausted the internal mechanism stipulated in section 61 (1) of the 2nd Respondent’s Constitution. It held that in the absence of proof that exhibit KK was served on the 2nd Respondent’s Appeal Panel, the Appellant’s action was premature. Against this finding, learned counsel for the Appellant submitted that it has been held under section 87 (9) of the repealed Electoral Act, 2010, (now section 84 (14), Electoral Act, 2022) that an aggrieved aspirant is not bound to first resort to the internal dispute resolution mechanism of his political party before approaching the court to seek redress on his grievance, as section 84 (14) of the Electoral Act is not subject to the Constitution or Guidelines of any political party. In support of this submission, the following cases were cited – PDP vs, Nguroje & Ors (2012) LPELR-20859 (CA); APC & Ors vs. Karfi & Ors (2015) LPELR-41857 (CA). The court was urged to hold that the Appellant’s failure to exhaust internal mechanism for resolution of dispute does not deprive the lower court of its jurisdiction to hear the Appellant’s case.
Per contra, learned counsel for the 1st, 2nd, 4th and 5th Respondents submitted that the Appellant has failed to file an appeal before the Appeal Panel against the conduct of the primary election as provided for under section 61 (1) of the PDP Constitution and Article 5 (ii) and (iii) of the PDP Electoral Guidelines for primary elections, thereby failing to fulfill the condition precedent for the commencement of this suit. He cited Akintemi vs. Onwumechili (1985) I NWLR (Pt.1) 68 @ 85; Owoseni vs. Faloye (2005) 14 NWLR (Pt.946) 719 @ 757; Onuoha vs. Okafor ((1983) 2 SCNLR244 @ @61; Dalhatu vs. Turaki (2003) 15 NWLR (Pt.843) 310 @ 347.
Resolution
Section 61 (1) of the Constitution of the Peoples Democratic Party provides:
“Any member of the party who is aggrieved by a decision taken against him by any of the organs or officers of the Party shall have the right of appeal to the immediate higher organ of the Party within fourteen days of the decision.”
Under Part V of the PDP Electoral Guidelines, Article 9 (h) annexed to the Amended Originating Summons at page 438 of the Record, it is provided as follows:
“Any aggrieved aspirant shall have the right of appeal in writing to the Gubernatorial Electoral Appeal Panel within 24 hours from the time of the declaration of the result decision complained of.”
At paragraphs 48 and 49 of the Affidavit in support of the Amended Originating Summons, the Appellant deposed to the fact that he wrote a letter of appeal to the Gubernatorial Appeal Panel on 26/05/2022 but was unable to deliver same as staff in the Secretary’s Office at Wadata Plaza Headquarters of the 2nd Respondent refused to accept the letter. The clear implication of these depositions is that the Appellant has admitted by his own showing that he has not filed a complaint with the Gubernatorial Electoral Appeal Panel for Rivers State Governorship primaries of the 2nd Respondent. The fact that he has written the letter of appeal as in exhibit KK is of no moment, since same was not delivered. It follows that the Appellant has not utilized and exhausted the internal dispute resolution mechanism of the 2nd Respondent before filing his action at the lower court. What then is the effect or consequence of this failure by the Appellant to exhaust the dispute resolution mechanism of the 2nd Respondent? Does the lower court possess the requisite jurisdiction to entertain the Appellant’s case? On the condition precedent for the exercise of jurisdiction by court, I will refer to the celebrated case of Madukolu vs. Nkemdilim (1962) LPELR-24023 (SC), wherein
Bairamian, JSC, stated how jurisdiction can be determined, in the following words:
"Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication."
Another question is whether there is a feature in the Appellant’s case which will prevent the lower court from exercising its jurisdiction or was there a condition precedent to the exercise of jurisdiction that has not been fulfilled? By the express provision of section 84 (14) of the Electoral Act, an aspirant in a primary election who complains that any of the provisions of the Electoral Act and guidelines of a political party have not been complied with in the selection or nomination of a candidate, may apply to the Federal High Court for redress, notwithstanding other provisions of the Electoral Act or any rule of a political party to the contrary. This provision appears to have given a blanket and direct access to the court by an aspirant who is aggrieved with the conduct of the primary election of his political party, if he can show proof that he has participated in the primary election as an aspirant, without having to go through the entire gamut or procedures of internal dispute resolution mechanism as provided in the Constitution, Rules or Guidelines of his political party. That, in my pedestrian view, appear to be the intention of the Legislature when in granting an aspirant access to the Federal High Court to ventilate his grievances with the conduct of his party’s selection or nomination of candidate in section 84 (14) of the Electoral Act, it excludes the application of other sections of the Electoral Act as well as the Rules and Guidelines of political parties by the use of the operative word ‘Notwithstanding.’ For purpose of completeness, the section provides:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
The Legislature commenced this provision by the word "Notwithstanding": an adverb, whose connotation has been expounded thus: The word or expression "Notwithstanding" is a term of exclusion in legal drafting; it simply means "in spite of or irrespective of or regardless of", see N.N.P.C. v. Lutin Invest. Ltd (2006) 2 NWLR (Pt. 965) 506 at 529. In N.D.I.C. v. Okem Ent. Ltd. (2004) LPELR-1999 (SC), @ P.55, Uwaifo, JSC, defined the word or term ‘Notwithstanding’ while interpreting the provision of section 251 of the Constitution, thus:
"As has been observed, Section 251(1) of the 1999 Constitution begins with "Notwithstanding anything to the contrary contained in this Constitution" while Section 272(1) of the 1979 Constitution is specifically made "subject to the provisions of Section 251." When the term "notwithstanding" is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said Section."
See also NNPC vs. Orhiowasele & Ors (2013) LPELR-24710 (SC); Obi vs. INEC (2007) LPELR-24347 (SC); Saraki vs Federal Republic of Nigeria (2016) LPELR-40013 (SC). These authorities signifies that other provisions of the Electoral Act or rules of any political party must bow to the superiority of the provision in respect of complaint by an aspirant emanating from the conduct of primary election. In other words, an aspirant who is incensed with the conduct of a primary election has an unimpeded access to a Court of law to ventilate his grouse without the necessity of first going through the dispute resolution procedures of his political party. Galadima, JSC, has clearly stated the law while interpreting the provision of section 87 (9) of the Electoral Act, 2010, which is in pari materia with the provision of section 84 (14) of the Electoral Act, 2022, in the case of Gassol v. Tutare (2013) LPELR-20232 (SC), where, at page 25 of the E-Report, the learned Law lord declared:
"Having found that the provision of Section 87(9) of the Electoral Act (supra) is clear and unambiguous this Court has the duty to give it literal interpretation. Having expressly listed the Courts with the jurisdiction respecting pre-electoral matters, therefore, there cannot be any legally constituted body either by a political party nor subject to the fulfillment of any conditions before the matter may be instituted before the Federal High Court."
This pronouncement of the apex Court, clearly banishes the internal dispute resolution mechanism, donated to the aggrieved members of the 2nd Respondent, which the 1st, 2nd, 4th and 5th Respondents erected as a clog to the jurisdiction of the lower Court to entertain the Appellant’s action. This authority solidifies and entrenched an aspirant's unfettered right of access to Courts to ventilate grievances arising from primary election, a right which does not inure to other members of a political party who do not attain the status of “aspirant”.
In arriving at this conclusion, I am not unmindful of the recent pronouncement of the Supreme Court, per Agim, JSC, in his concurring judgment in the case of Aliyu vs. APC & Ors (2022) LPELR-57345 (SC), where his lordship stated at pages 27-29 of the Report:
"I agree with the sound restatement of my learned brother that political parties and their members should have faith in the internal dispute resolution mechanisms prescribed in their party constitution. A member of a political party has by his membership of that party agreed to be bound by the Constitution of the political party and the majority decision of the party. Having subscribed to the membership of the political party he has agreed to be bound by the Constitution and the decision of the party contained in its guidelines and other of its documents. So that he must comply with the provisions of the party Constitution on how disputes over the internal affairs of the party can be resolved in keeping with the legal doctrine that the internal affairs of a political party are non-justiciable and therefore not subject to the judicial powers of Courts. Even where a statute expressly confers on him a right of action in Court over any aspect of the internal affairs of the party, he cannot exercise that right without first invoking and exhausting the internal dispute resolution mechanisms of the party prescribed in the political party Constitution. With respect to elections under the Electoral Act, Section 87 (9) of the Electoral Act 2010 (now Section 84 (14) of the Electoral Act 2022) gives an aspirant in a primary election of the candidate of a party, the right of action in Court to complain that the Constitution or Guidelines of the political party was not followed in selecting or nominating his co-aspirant as candidate of the party for a general election and gives the Court jurisdiction over a very narrow part of the internal affairs of a political party relating to nomination or selection of its candidate for an election. An aspirant cannot exercise that right of action without first exhausting the internal mechanisms for resolving disputes arising from primary elections over nomination or selection of the party's candidate prescribed in the Guidelines or Constitution of the party as part of its process of selection of its candidates. This is because the internal mechanisms for resolving disputes arising from party primaries is part of the process of selecting the party's candidates for general elections."
On the face of it, what the above-quoted statement portend is that, any aspirant who wish to challenge the conduct of primary election of his political party must exhaust the party’s internal dispute resolution mechanism before approaching the court to further ventilate his grievances. However, upon situating his lordship’s observation with the facts of the case vi-a-vis the leading Judgment of Abubakar, JSC, and the concurring Judgments of their lordships’ Nweze, Augie and Ogunwumiju, JJSC, I came to the inescapable conclusion that the above statement of the law is inapplicable to the instant appeal because it is not the ratio decidendi of the case as decided by the Supreme Court, rather, it was an obiter dictum, not the raison de’tre for the decision. The Supreme Court has pronounced, in tons of judicial authorities, on the meaning and effect of an obiter dictum. In Babarinde vs. The State (2013) LPELR-21896 (SC), @ 62-63 the apex Court, speaking through Galadima, JSC, held:
“It is common place that an orbiter dictum is an expression of opinion made in a giving statement by a Judge, but not necessarily to his decision and as such cannot form part of the ratio decidendi of the judgment. In other words, an orbiter dictum of a court does not have the status of a ratio decidendi; it does not decide the live issue in the matter; a ratio decidendi does.”
In lending his voice to the discuss on obiter dictum, his lordship, Agim, JSC, stated in Haruna vs. Abuja Investment and Property Development Co. Ltd (2021) LPELR-58383 (SC), thus:
“A pronouncement of a court that is not the reason for its decision or that did not influence the reason for the decision or on an issue not pleaded is clearly obiter.”
See also K.R.K. Holdings Nigeria Ltd vs. First Bank of Nigeria Ltd (2016) LPELR-41463, Nweze, JSC; Aondoakaa, SAN vs. Obot & Anor (2021) LPELR-56605 (SC), Kekere-Ekun, JSC; EFCC vs. Chidolue (2018) LPELR-57097 (SC), Okoro, JSC; A.G. Kwara State vs. Lawal & Ors (2017) LPELR-42347 (SC), Eko, JSC.
A short detour into the facts of the case of Aliyu vs. APC & ors (supra) will vindicate my position that the pronouncement of the Supreme Court quoted above is an obiter dictum. In that case, the Appellant wanted to contest the 1st Respondent’s primary election for the position of Chairman, Nasarawa Eggon Local Government of Nasarawa State. He satisfied all the requirements for the primary election. He was however manoeuvred and sidelined as the primary election was conducted in his absence. Aggrieved, he approached the Nasarawa State High Court via an Originating Summons. Before the Supreme Court, the question was whether the provisions of the Electoral Act regulate election into the office of Chairman of a Local Government Council. The apex court answered the question in the negative and held that it lacks jurisdiction to entertain the Appellant’s appeal as the Appellant cannot take cover under section 87 (9) of the Electoral Act 2010, now repealed. It is therefore clear that the provision of section 84 (14) of the Electoral Act, 2022 did not come up for interpretation before the Supreme Court in Aliyu vs APC & Ors (supra), and therefore any far-reaching pronouncement in relation to that section can be regarded as obiter, which lacks binding force. In the circumstance, I hold that on the authority of Gassol vs. Tutare (supra), the Appellant is not under any legal obligation to exhaust the internal dispute resolution mechanism of his political party before approaching the Federal High Court with his grievances. On this score, the lower court was wrong in holding that it lacked jurisdiction to entertain the Appellant’s suit. This sub-issue is resolved in favour of the Appellant.
The second arm of this hydra-headed sub-issue is whether by his Undertaking to support whoever wins the primary election without challenging him as per exhibit EE, the Appellant was estopped from filing the suit at the lower court. The lower court held in its Judgment that the Appellant is bound by his express undertaking in exhibit EE to support whoever emerges as the candidate of the 2nd Respondent and not to subject the decision of the party to any litigation. I have taken note of the various submissions made by learned counsel for both parties and the authorities cited by them on this point. Having done that, I will go straight into the sub-issue. Appellant contended that no agreement between him and the 2nd Respondent can vitiate the provision of the Constitution and the Electoral Act with regards to his right to go to court to challenge non-compliances in the conduct of the Governorship primary election for Rivers State. 1st, 2nd, 4th and 5th Respondents contends otherwise.
In the 2nd Respondent’s nomination form for Gubernatorial primary election obtained and filled in by the Appellant, annexed to the Amended Originating Summons as exhibit EE and copied at pages 378 - 408 of the Record of Appeal, particularly at pages 381 – 382 thereof, the Appellant made an undertaking as follows:
“I, CHIEF MORGAN T. TOM WEST of 66 ELEBIKE COMPOUND, do hereby affirm that I shall abide and comply with all conditions which the party has laid down in the Nomination form. That I will support the person that the party will nominate as its gubernatorial Candidate and work at all times towards his/her success, and will not engage in any antiparty activities. That I agree to abide by the rules and regulations for candidates on the conduct of primaries which shall be in the overall interest and success of the PDP and as per guidelines and decisions of the National Executive Committee and other guidelines issued for election into the Senatorial as the case may be. That I undertake to abide by the decisions of the party as final and not subject it to any litigation whatsoever or adjudication by any other body including the court of law”.
By this undertaking, the Appellant has promised to support whoever will be nominated by the party as its candidate. He also undertook to accept the decision of the party as it relates to the nomination of candidate as final, and that he will not subject the party’s decision to litigation in a court of law. No doubt, the Appellant, as an aspirant, has the right both under section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and section 84 (14) of the Electoral Act, 2022, to challenge, in the Federal High Court, the conduct of the 2nd Respondent’s Gubernatorial primary election, where there is non-compliance with either the Electoral Act or the Constitution and Guidelines of the 2nd Respondent, or both. Can the Appellant waive his constitutionally guaranteed right of unfettered access to Court? in other words, can the Appellant be said to have abandoned his right to complain about non-compliance in the conduct of the primary election by his undertaking reproduced supra? The concept of waiver is one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. Thus, if one party by his conduct leads another to believe that the strict rights arising under contract between himself and another will not be insisted upon, intending that the other person should act on that belief and does not act on it, then the first party has waived his right and will not afterwards be allowed to insist on the strict rights when it will be inequitable for him so to do. See Nigerian Bank of Commerce and Industry vs. Integrated Gas (Nigeria) Limited (2005) 4 NWLR (Pt. 916) @ 642-643. See also Ariori vs. Elemo (1983) LPELR-552 (SC), where the Supreme Court, per Idigbe, JSC, defines waiver as “the intentional and voluntary surrender or relinquishment of a known priviledge and aright, it therefore implies a dispensation or abandonment by a party waiving of a right or priviledge which at his option, he could have insisted upon.” Waiver carries with it some element of abandonment of a known legal right. The right to sue in respect of the conduct of the primary election, even though provided by a Statute, can be waived by the Appellant as it inures only to his benefit and persons in the same class with him, it does not inure to the general public or to the State, it is a private right. In Odu’a Investment Company vs. Talabi (1997) LPELR-2232 (SC), Ogundere, JSC stated:
“The law appears to me to be that a person who is sui juris can waive a right conferred upon him by a statute where the right is for his sole benefit and the State has no interest. Where the State has an interest in the matter in the sense that public policy is involved, such a right cannot be waived.”
The Appellant, having waived his right to litigate over the selection and nomination of the 1st Respondent by the 2nd Respondent, he cannot now turn round to assert the right. Appellant’s waiver of his right defeats the issue of non-compliance; NBC Plc vs. Ubani (2013) LPELR-21902 (SC). A similar scenario played out in the case of Gana vs. SDP & Ors (2019) LPELR-47153 (SC), whose difference with the instant case in terms of facts is akin to the difference between half a dozen and 6, despite the Appellant’s failed attempt to draw an imaginary difference between the two set of facts. In that case, on the question of whether an aspirant who signs an undertaking to support the winner of a primary election is estopped by his conduct to challenge the outcome of the said primaries, the Supreme Court, per Eko, JSC, answered the question in the affirmative when his lordship held:
“I am in complete agreement with the 1st - 5th Respondents that the Appellant's undertaking in Exhibit SDP 5 is adverse to the case of the Appellant. The undertaking clearly makes it not right or unconscionable for the Appellant to litigate on the very cause of action he had elected, expressly, not to exercise his right of action to litigate, and had in fact emphatically represented to the electors and the other aspirants that he would "support whoever emerges as the winner of the position we are contesting for". Equity acts in particularly on the conscience of the party against whom it is pleaded who, allegedly, had acted in a manner very iniquitous, unconscionable or immoral by operation of the rule of estoppel. In the words of Nnaemeka-Agu, JSC in UDE v. NWARA (supra) at page 662, a man is not allowed to blow hot and cold, to affirm at one time and to deny at the other, or, as it is said, to approbate and reprobate. Accordingly, on this principle and in view of his undertaking in Exhibit SDP5 the Appellant, a man of honour, is not allowed to mislead the 1st - 5th Respondents into believing that he would support the winner of the contest between himself, on one hand, and the 5th Respondent and others, on the other hand, and later turn around to litigate against them, particularly the 5th Respondent who emerged as the winner of the contest. It is clear to me, and I so hold, that the Appellant can waive the right to dispute and litigate on the outcome of the Presidential Primary election he took part in on 6th October, 2018 since the right is personal and beneficial to him as an aspirant: ARIORI v. ELEMO (SUPRA). The principle of estoppel by conduct, which has been codified into Section 169 of the Evidence Act, 2011, estops him from approbating and reprobating on his undertaking in Exhibit SDP5 to support whoever emerged from the contest he had with the 5th Respondent and others on 6th October, 2018. That undertaking obligated him as a man of honour, conscience and principle to support the 5th Respondent who emerged as the winner from the contest.”
On the basis of the above cited authority, I hold that the Appellant has waived his right to litigate the outcome of the Rivers State Gubernatorial primary election of the 2nd Respondent conducted on 25/05/2022. He cannot resile from the undertaking voluntarily made by him to support the winner of the primaries and not to litigate the outcome of the primaries, which undertaking was acted upon by the 1st, 2nd, 4th and 5th Respondents. This sub-issue is resolved against the Appellant.
The sum total of all my resolutions of the sub-issues in this appeal, one way or the other, is that this appeal has no merit and is hereby visited with the consequences of dismissal. The Judgment of the Federal High Court, Port Harcourt Judicial Division, Coram: A.T. Mohammed, J., dismissing the Appellant’s suit No. FHC/PH/CS/818/2022, is hereby affirmed.
There shall be no order as to cost, as both parties are enjoined to bear their respective costs of prosecuting and defending this appeal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Catherine Alekiri Alete for the Appellant.
Okechukwu Omeodo for the 1st, 2nd, 4th and 5th Respondents.
M. I. SIRAJO, JCA CA/PH/545/2022 | PAGE OF |
