IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON THURSDAY, THE 30TH DAY OF DECEMBER, 2021
BEFORE THEIR LORDSHIPS:
ALI ABUBAKAR BABANDI GUMEL JUSTICE, COURT OF APPEAL
MOHAMMED DANJUMA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/IB/359/2021
BETWEEN:
MR. OLALEYE OLALEKAN BABATUNDE ------------APPELLANT
AND
HON. OSINOWO LEKAN & 2 OTHERS ------------ RESPONDENTS
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal is against the judgment of the High Court of Ogun State sitting at Shagamu delivered by Tajudeen A. Okunsokan, J., on 21/10/2021, whereby the action of the Claimant (Appellant) commenced by way of Originating Summons, was struck out for want of jurisdiction. The background facts leading to this appeal, according to the Appellant, were that, as a card-carrying member of the All Progressives Congress (2nd Respondent), he, along with Hon. Osinowo Lekan (1st Respondent), Ogunfowora Olanrewaju and Oyetti Oluwafemi, contested the 2nd Respondent’s primary election to select the candidate for the Councillorship general election of Ward 3, Iperu Remo, Ikenne Local Government of Ogun State, held on 18/05/2021, where he emerged the winner with 11 votes, as against the 7 votes, 1 vote and 0 vote scored by the 1st Respondent, Ogunfowora Olanrewaju and Oyeti Oluwafemi respectively. The primary election was held after failed attempt by the 2nd Respondent to produce a consensus councillorship candidate for the said Ward. The Party Leaders appended their signature to the results of the primary election won by the Appellant and forwarded the report to the State Party Chairman at Abeokuta, the State Governor and some key party officials. On 30/06/2021 when the names of candidates for the Ikenne Local Government election were pasted at the Ward 3 Secretariat, the Appellant discovered that his name was replaced by that of the 1st Respondent as the councillorship candidate of the 2nd Respondent for Ward 3, Iperu Remo, even though he was the aspirant that won the primary election., contrary to APC Constitution, APC Electoral Guidelines, 2014 and the Electoral Act, 2010. On the instruction of the Appellant, a letter was written to the APC Local Government Area Executive Committee, headed by the APC Chairman, Ikenne Local Government requesting that a fact-finding committee be set up. The 1st Respondent was copied that letter. When no action was taken on the letter of complaint, the Appellant filed an Originating Summons before the lower court, at pages 1 – 92 of the Record of Appeal, wherein he sought the following reliefs:
The Summons was supported by an affidavit of 24 paragraphs deposed to by the Appellant himself. In response to the suit, the 1st and 2nd Respondents filed a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the lower court to entertain same, together with a counter affidavit in opposition to the Originating Summons. These processes are at pages 171 – 235 of the Record. The 3rd Respondent did not file any process before the lower court and this court. The lower court took arguments on the preliminary objection and the originating summons together and in a considered judgment, declined jurisdiction to entertain the suit on the ground that it concerns the internal/domestic affairs of the 2nd Respondent and proceeded to strike out the suit.
Naturally peeved by that decision, the Appellant appealed to this court vide a Notice of Appeal predicated on two grounds, dated and filed on 01/11/2021. The Appellant and the 1st and 2nd Respondents filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument was filed on 06/12/2021. While the 2nd and 3rd Respondents were served with the Appellant’s Brief personally, the 1st Respondent was served by substituted means vide an order of this court made on 20/12/21. On the same date, the court made an order abridging the time within which the 1st Respondent shall file his Brief of Argument to two days. The Appellant was given 24 hours to file his Reply Brief, should the need arise. This order was made to enable the court hear and determine the appeal before it expires on 30/12/2021.
When the appeal came up for hearing on 23/12/2021, learned counsel for the 1st and 2nd Respondents, A.A. Ajayi Esq., moved an application for enlargement of time within which to file and serve the Brief of Argument of the 1st and 2nd Respondents. In the absence of opposition by the other parties, the said application was granted and the 1st and 2nd Respondents’ Brief of Argument dated 22/12/2021 but filed on 23/12/2021, incorporating a preliminary objection as argued at pages 4 – 13 thereof, was deemed as having been properly filed and served. On behalf of the 3rd Respondent, Kehinde Ogunwumiju, SAN, informed the court that he has not filed the 3rd Respondent’s Brief as he was only briefed at 1.30 pm the previous day, i.e., on 22/12/2021. He prayed the court under Order 25 Rules 2 and 3 of the Court of Appeal, Rules, 2021, for an order to waive compliance with the Rules to enable him address the court orally in the absence of Brief of Argument. The application was not objected to and the court granted same, considering the fact that this is a time-bound appeal that must be determined on or before 30/12/2021. Learned senior counsel was given 5 minutes to address the court on behalf of the 3rd Respondent in lieu of Brief of Argument. In the same vein, Appellant’s counsel was also granted leave to orally respond to the preliminary objection raised in the Brief of Argument of the 1st and 2nd Respondents as well as the oral address of the 3rd Respondent. The preliminary objection and the substantive appeal were duly argued with parties adopting their respective processes as well as marshalling oral arguments in support of their respective positions.
Preliminary objection.
Before delving into the substantive appeal, however, I shall consider the preliminary objection raised and argued by the 1st and 2nd Respondents in their Brief of Argument. The 1st and 2nd Respondents challenged the competence of this appeal on the ground that the Appellant’s Originating Summons failed to comply with the mandatory provisions of the Sheriff sand Civil Process Act, 2004 with regard to service of the said process on the 2nd Respondent. Their objection in the main, is that the 2nd Respondent’s Headquarters is in Abuja and it ought to have been served with the originating process there, as opposed to the address for service on the 2nd Respondent given by the Appellant on the face of the Originating Summons as Abiola Way, Abeokuta. The second arm of the objection is that the Originating Summons for service on the 2nd Respondent, which ought to be in Abuja, outside the jurisdiction of the lower court, should have been marked as ‘Concurrent Originating Summons’ as well as ‘for service outside jurisdiction’, but was not so marked. These two failures and omissions, according to learned counsel, contravenes the mandatory provisions of section 97 of the Sheriffs and Civil Process Act, Order 6 Rule 10 and Order3 Rule 9 of the High Court of Ogun State (Civil Procedure) Rules, 2014, thereby rendering the Originating Summons incompetent. Relying on the cases of Owners of THE M.V. “Arabella” vs. Nigeria Agricultural Insurance Corporation (2008) LPELR-2848 (SC); PDP vs INEC & Ors (2018) LPELR-44373 (SC); Izeze vs. INEC (2018) LPELR-44284 @ Page 17-23; 30-33, Mr. Ajayi submitted that this court lacks the jurisdiction to entertain this appeal because of the Appellant’s failure to comply with the mandatory provisions of section 97 of the Sheriffs and Civil Process Act, 2004 and Order 6 Rule 10 of the Ogun State High Court Rules. We are urged to strike out the suit at the lower court for want of jurisdiction and dismiss the appeal herein. Responding orally to the preliminary objection, learned counsel for the Appellant submitted that the 2nd Respondent accepted service of the Originating Summons at its office at Abiola Way, Abeokuta, appeared before the court and conducted the proceedings fully up to judgment. He urged the court to dismiss the preliminary objection.
Section 97 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004, provides:
“Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)- [L.N. 47 of 1955.] "This summons (or as the case may be) is to be served out of the...................... State (or as the case may be)..................... and in the.......................State (or as the case may be)." On the other hand, Order 6 Rule 10 of the Ogun State High Court (Civil Procedure) Rules provides: “An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.” The above quoted provisions of the Sheriffs and Civil Process Act and the Rules of the High Court of Ogun State deals with endorsement of originating process for service outside the jurisdiction of the issuing court. For an originating process for service outside jurisdiction to be effectively and competently issued and served, there must be an endorsement thereon to the effect that the originating process is for service outside the jurisdiction of the court issuing the said process. This is what section 97 of the Sheriffs and Civil Process Act is all about, and compliance with the said provision is a condition precedent to the competence and validity of any originating process for service outside jurisdiction. The validity of originating process in a proceeding, like the Originating Summons, Writ of Summons or Notice of Appeal, is a sine qua non for the competence of the proceeding that follows or that is initiated by such process. See Kente vs. Ishaku & Ors (2017) LPELR-42077 (SC). It has been held that failure to endorse an originating process meant for service outside jurisdiction as such, is a fundamental defect with fatal consequences of incompetence of the originating process, thereby robbing the court of jurisdiction to hear the case. See PDP vs. INEC & Ors (supra). In Izeze vs. INEC & Ors (supra), cited by learned counsel for the 1st and 2nd Respondents, the Apex Court held inter alia; “Once the claimant fails to comply with the mandatory provision in section 97 supra, the court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision.” Upon a careful examination of the Originating Summons filed by the Appellant at the lower court, I found that the 2nd Respondent’s address for service as stated at page 4 of the Record of Appeal is: “The 2nd Respondent, All Progressive Congress (APC) Party Secretariat, Abiola Way’ Abeokuta, Ogun State. The address for service on the 2nd Respondent as provided on the Originating Summons is an address within the territorial jurisdiction of the Ogun State High Court. it is not an address outside the jurisdiction of the lower court as to warrant the endorsement of the Originating Summons as “Concurrent” and “For service outside jurisdiction” as required by sections 97 and 98 of the Sheriffs and Civil Process Act and Order 6 Rule 10 of the Ogun State High Court (Civil Procedure) Rules, 2014. That being the case, the necessity for endorsements as required by the Sheriffs and Civil Process Act and the Ogun State High Court Rules does not arise at all in the instant case on appeal as the address for service on the 2nd Respondent as provided in the originating process is within and not outside the jurisdiction of the lower court. Consequently, all the cases cited and relied upon in the Brief of Argument of the 1st and 2nd Respondents in support of the preliminary objection do not apply to the instant case. Looking at it from another angle, it is not in dispute that the National Headquarters of the 2nd Respondent is situate at Abuja, Federal Capital Territory. The 2nd Respondent also has State Offices and in the instant case, the Appellant served the 2nd Respondent at its Abeokuta Office, Ogun State. The 2nd Respondent took several steps in the proceedings at the lower court by causing appearance to be entered for it through counsel, by filing a Notice of preliminary objection to the competence of the action on some stated grounds and by joining issues with the Appellant on the substantive action through the filing of a counter affidavit against the Appellant’s claim. The 2nd Respondent neither objected to the competence and validity of the Originating Summons on grounds of non-endorsement as to service outside jurisdiction nor did it object to the service of the process at its Abeokuta Office, rather, it fully took part in the proceedings and subequently savoured the judgment of the lower court that was giving in its favour, only to now raise the issue before us on appeal. There is nothing in the Record of Appeal to show that the 2nd Respondent filed any objection on the mode of issuance and service of the Originating Summons before the lower court. It is too late to do so at this stage. See Central Bank of Nigeria vs. Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC). It is my considered view that service of the Originating Summons on the 2nd Respondent, a legal entity that comes into existence upon registration pursuant to the provision of the Electoral Act, at its Ogun State Office in Abeokuta is good service, more so that the 2nd Respondent took all the necessary steps in the case without lodging any complaint pertaining to the mode of service. Service of court process on the State Office of a Political Party is akin or can be likened to service of court process on a Government Liaison Office. In the case of Rivers State Government vs. Specialist Consult (Swedish Group) LPELR-2950 (SC), the Supreme Court held the view that service on a State Liaison Office is a proper service on the State Government. In the final analysis, I did not find merit in this preliminary objection and I dismiss it accordingly. I shall now return to the arguments on the merits of the appeal. Arguments. |
In the Appellant’s Brief of Argument which was prepared by Olasupo Olaibi Esq., the following two issues were crafted from the two grounds of appeal –
The 1st and 2nd Respondents also formulated two issues for the determination of the main appeal in their Brief of Argument, viz:
The issues formulated by the Appellant appears to be more apt for the resolution of this appeal and I shall adopt them accordingly. This is especially so as it is the Appellant that is aggrieved by the decision appealed against.
Issue 1
After reiterating the fundamental nature of jurisdiction to adjudication, learned counsel for the Appellant submitted that where a court has jurisdiction to entertain a suit, declining such jurisdiction will amount to a miscarriage of justice, citing and relying on the authorities of Boko vs. Nungwa & Ors (2019) 1 NWLR (Pt.1654) 395 @ 429; Matari & Ors vs. Dangaladima & Anor (1993) 3 NWLR (Pt.281) 266, (1993) LPELR-25714 (SC); Abiola & Sons Bottling Co. (Nig.) Ltd & Anor vs. First City Merchant Bank Ltd & Ors (2013) LPELR-20387 (SC); NURTW & Anor vs. RTEAN & Ors (2012) LPELR-7840 (SC); Usman Danfodio University vs. Kraus Thompson Organisation Ltd (2001) 15 NWLR (Pt.736) 301; Adetayo vs. Ademola & Ors (2010) LPELR-155 (SC). He argued that the learned trial Judge was wrong to have relied on the old principle in Onuoha vs. Okafor (1983) 14 NSCC 494 and Dalhatu vs. Turaki (2003) FWLR 9Pt.174) 247 to decline jurisdiction on the ground that the matter was a domestic issue or internal affair of the 2nd Respondent. Learned counsel also faulted the reasoning of the lower that section 87 (5) and (9) of the Electoral Act, a Federal enactment, does not apply to disputes concerning Local Government election in that the National Assembly does not have the exclusive power to regulate the procedure of election at the Local Government level by virtue of Item 22 on the Exclusive Legislative List, Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is the argument of counsel that the power of the National Assembly to legislate on procedure of elections to the Local Government Council, in addition to the power of the State Assembly, is provided for under Items 11 and 12 of the Concurrent Legislative List. Counsel for the Appellant contended that it is in the exercise of its powers under the Concurrent Legislative List that the National Assembly provided for the procedure for nomination of candidates for councillorship election at the Local Government under section 87 (5) of the Electoral Act. In this wise, counsel maintained that both the Electoral Act and the Electoral Law of Ogun State, 2006, are applicable to the councillorship primary election of the 2nd Respondent for Iperu Remo Ward 3, Ikenne Local Government of Ogun State. Relying on Amaechi vs. INEC (2008) 1 SC (Pt.1) 36, learned counsel submitted that the claim of the Appellant at the lower court falls within the narrow compass of section 87 (9) of the Electoral Act and therefore the lower court erred in declining jurisdiction. The court was referred to the case of APC vs. Engr. Suleiman Aluyi Lere (2020) 1 NWLR (Pt.1705) 254 & 285 and the unreported case of Kambaza & Ors vs. APC & Ors in Appeal No. CA/S/54/2020 delivered on 29/06/2020 on the procedure of primary election and when the issue of legal right of an aspirant in the primary election process will arise, that is to say, at what stage is the internal affairs of a political party considered justiciable or not justiciable as to oust the jurisdiction of the court. Learned counsel for the Appellant reiterated the Appellant’s complaint to be that he was substituted after winning the primary election which he was cleared to contest, and that this fact serves to activate the provisions of section 87 (9) of the Electoral Act. It is further argued that the Articles 20 and 21 of the APC Constitution 2014, were not complied with in the selection or nomination of the 1st Respondent in place of the Appellant who was the winner of the primary election. This court was urged to hold that the lower court was wrong for declining jurisdiction to entertain the Appellant’s claim.
The 1st and 2nd Respondents argued in their Brief that the Appellant’s action at the lower court was filed to challenge the nomination of the 1st Respondent as the candidate of the 2nd Respondent at the councillorship election for Iperu Remo Ward 3, Ikenne Local Government of Ogun State and to disqualify the 1st Respondent from contesting the election. They submitted that section 87 (9) of the Electoral Act relied upon by the Appellant did not apply to this case and that the applicable law, the Electoral Law of Ogun State, 2006, did not have similar provision as in section 87 (9) of the Electoral Act, 2010. It was submitted that the lower court therefore has no jurisdiction to determine the suit which is founded on the internal affairs of the 2nd Respondent. Relying on the authorities of Adegbite vs. APC & Ors (2015) LPELR-24214 (SC); Onuoha vs Okafor (183) SCNLR 244; PDP vs. Sylva (2012) 13 NWLR (Pt.1316) 85; APGA vs. Anyanwu (2014) SC (Pt.1) 1, learned counsel for the 1st and 2nd Respondents argued forcefully that nomination and sponsorship of candidates for election is exclusively within the dormain of political parties and the courts will not dabble into it as it is non-justiciable.
Learned senior counsel for the 3rd Respondent, Kehinde Ogunwumiju, SAN, submitted that when a Local Government election is challenged by an aspirant or a participant on the basis of Electoral Act, that action must fail as the Act only applies to Federal, State and FCT Council elections, in that the Electoral Act has no bearing with Local Government elections. Reliance was placed on Kambaza & Ors vs. APC & Ors (2020) LPELR-50305 at pages 62 - 68 (CA); Usman vs. APC & Ors (2020) LPELR-50308 (CA) @ pages 25 -30. He contended that the Appellant has not pointed out any provision of the Ogun State Electoral that was breached. Learned senior counsel further argued that the finding of the lower court that the case was not a pre-election matter is binding on the Appellant in view of the failure of the Appellant to appeal against that finding.
By way of reply Mr. Olaibi submitted that the Appellant has always been consistent right from the lower court that this is a pre-election matter and that there is a narrow aperture for an aspirant to come to court under section 87 (9) of the Electoral Act.
Resolution of Issue 1.
Jurisdictional competence of court to pronounce on a matter before it is so fundamental that once it is raised, it shall be determined expeditiously before further step is taken in the matter. This is so because where a court has no jurisdiction, all proceedings conducted by it amounts to waste of precious judicial time and resources as the said proceedings, no matter how well conducted, is a nullity. See the locus classicus case of Madukolu vs Nkemdilim (1962) LPELR-24023 (SC); Etsako West Local Government Council vs Christopher (2014) LPELR-23023 (SC); Opia vs. INEC & Anor (2014) LPELR-22185 (SC); Adegbola vs. Idowu & Ors (2017) LPELR-42105 (SC); APC vs. Enugu State Independent Electoral Commission (2021) LPELR- 55337 (SC); Ojikutu & Ors vs. Kuti & Ors (2021) LPELR-56231.
In the instant case, the lower court declined jurisdiction on the ground that the subject matter of the case falls within the internal affairs of the 2nd Respondent. Learned counsel for the Appellant faulted the stance of the lower court, maintaining that by the provision of section 87 (9) of the Electoral Act, 2010, the Appellant has the right to challenge the failure of the 2nd Respondent to abide by its Constitution and Electoral Guidelines in the conduct of its primary election and nomination of candidate for the Ward 3, Iperu Remo Councillorship election. The applicability of section 87 (9) of the Electoral Act to the Appellant’s case at the lower court is in the front burner in this appeal. it is the determination of the applicability of that subsection of the Electoral Act to this case that will ultimately determine whether the Appellant can utilize the aperture therein to challenge the action or omission of the 2nd Respondent with respect to non-compliance by its Constitution and Guidelines for the conduct of councillorship primary election in question. Now, section 87 (9) of the Electoral Act, 2010 (as amended) 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 has 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 or the High Court of a State or FCT, for redress.”
This provision is plain and self-explanatory. It provides a window to an aspirant to challenge the conduct of primary election by his political party if, in his opinion, the provisions of the Electoral Act and Rules of his party have not been complied with. The instant case on appeal emanates from the conduct of primary election to select a candidate for councillorship election for Ward 3, Iperu Remo, Ikenne Local Government. In short, the subject matter of the suit concerns Local Government election in Ogun State. What then is the scope of the Electoral Act, 2010 (as amended)? Does it extend to processes of election, including primary election by political parties, and actual election into Local Government Councils in Ogun State or for that matter, any other State of the federation? The title of the Electoral Act, 2010 (as amended) reads:
“AN ACT TO REPEAL THE ELECTORAL ACT NO. 2, 2006 AND INDEPENDENT NATIONAL ELECTORAL COMMISSION ACT, CAP.15, LAWS OF FEDERATION OF NIGERIA, 2004 AND ENACTS THE ELECTORAL ACT, 2010 TO REGULATE THE CONDUCT OF FEDERAL, STATE AND AREA COUNCIL ELECTIONS; AND FOR RELATED MATTERS COMMENCEMENT: [20TH DAY OF AUGUST, 2010]”
The type and class of election to be regulated by the Electoral Act is self-evident from the title of the Act. The Act does not regulate the conduct of election or processes leading to election, such as party primaries, into any Local Government Council in Nigeria other than the FCT Area Councils.
Learned counsel for the Appellant referred to Items 11 and 12 of the Concurrent Legislative List, Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the National Assembly has the power to enact laws with respect to the procedure regulating election to any political post in Nigeria both under the Exclusive and Concurrent Legislative Lists, as exemplified by the Electoral Act. Item 11 on the Concurrent Legislative List contained in the Second Schedule to the Constitution provides:
“The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.”
Permit me to quickly say that so far, other than the Electoral Act, 2010 (as amended), the National Assembly is yet to exercise its powers of making laws to regulate elections in Local Governments in Nigeria. Having the power to do a thing is entirely different from exercise of that power. The National Assembly has, in its wisdom, not yet deemed it necessary to exercise that power of making law for the regulation of elections in all the Local Governments in the Country, other than the FCT Area Councils, to which the Electoral Act relates. The argument of learned counsel for the Appellant in this respect lacks the pedestal upon which to stand.
I shall now examine the case of Kambaza & Ors vs. APC & Ors (supra) relied upon by the Appellant and the 3rd Respondent in support of their respective arguments before this court. In that case, the Appellants purchased the nomination forms of the 1st Respondent for participation in the Chairmanship/Councillorship election in Gwandu Local Government of Kebbi State. They underwent series of screening exercise by the 1st Respondent but were subsequently disqualified from participating in the primary elections for the selection of candidates for the local Government election. The name of the 3rd Respondent as the sole aspirant was forwarded to the Electoral body as the Chairmanship candidate while the names of the 4th, 7th to 16th Respondents were forwarded as councillorship candidates for the Gwandu Local Government Council election. The Appellants challenged their exclusion from the primaries and the non-holding of the primaries before the High Court of Kebbi State, but the court declined jurisdiction on the ground that it was an intra-party dispute. The Appellants appealed to Sokoto Division of this court, contending inter alia; that the lower court did not ascribe the express and unambiguous provisions of section 87 (9) of the Electoral Act and Articles 13 and 20 of the Constitution of All Progressives Congress their true and natural meaning. This court (Coram: Gumel, Oho and Talba, JJCA) held, among other things, that the Electoral Act, 2010 does not apply to elections into Local Government Council. Delivering the lead judgment, Oho, JCA, said at page 62 of the E-Report:
“By predicating their action on the provisions of the Electoral Act, 2010 rather than on the provisions of the Kebbi State Independent Electoral Commission Law, 2000, the Appellants, as Claimants, unwittingly boarded a boat sailing on the wrong stream with obvious calamitous consequences.”
The court also held that the issue of nomination and sponsorship of a candidate by a political party for any election is within the exclusive preserve of the political party and the courts have no jurisdiction to interfere therein. The ratio decidendi in Kambaza’s case which I summarized above is in tandem with the arguments of the 1st and 3rd Respondents. The Appellant seems to be relying on suppositions by way of orbiter dicta that can be found in few pages of the lead judgment of my learned brother, Oho, JCA. An orbiter dictum is not a reason for the decision and therefore lacks binding force.
I will not conclude on this issue without correcting a misconception by learned counsel for the Appellant in the usage of the words ‘nomination’ and ‘substitution’ when used in relation to electoral disputes. Learned counsel for the Appellant complained of wrongful substitution of the Appellant. There cannot be substitution of candidate without nomination. For a candidate to complain of wrongful substitution, he must first prove that he was nominated. The Appellant has not shown that he was nominated by the 2nd Respondent as a candidate in the Councillorship election of Ward 3, Iperu Remo, Ikenne Local Government, so he could not have been wrongly substituted. Nomination comes before substitution and nomination is the function of a political party. Filling and submission of nomination form to a political party and participating in or even winning a primary election simpliciter, does not in law amount to nomination of candidate for election. The net result of my findings, legal analysis and observations supra is that issue 1 ought to be and is hereby resolved against the Appellants and in favour of the Respondents.
Issue 2.
“Whether the claim of wrongful substitution in the originating summons ought not to be determined on its merits notwithstanding that the trial court declined jurisdiction.”
Learned counsel for the Appellant argued that the lower court was wrong in refusing to consider the suit on the merits after concluding that it lacks jurisdiction. He submitted that having found that it lacks the jurisdiction to hear the case, the lower court should have proceeded to decide the merits of the case, in case its ruling on jurisdiction is found to be wrong on appeal. On this submission, the court was referred to Gbenga vs. APC (2020) ALL FWLR (Pt.1053) (CA) 115; Adjoto vs. Akpatason (2019) ALL FWLR (Pt.1004) (CA) 183; PDP vs. Badaire (2019) ALL FWLR (Pt.1024) (CA) 170; Boko vs. Nungwa (2019) ALL FWLR (Pt. 1000) (SC) 617; Angadi vs. PDP (2019) ALL FWLR (Pt.996) (SC) 939. The court was urged to invoke the provision of section 15 of the Court of Appeal Act to rehear the suit on the merit and grant the claim of the Appellant on the Originating Summons.
Learned counsel for the 1st and 2nd Respondents submitted that there is no way the lower court can make pronouncement on the merit of the case as the subject matter, i.e., the choice of a political party candidate for election, is not justiciable, relying on PDP vs Sylva (supra); Onuoha vs. Okafor (supra); Ufomba vs. INEC & Ors (2017) LPELR-42079 (SC). Learned counsel argued that there are exceptions to the rule that all trial and intermediate courts shall resolve all issues raised in a case even after finding that the resolution of one issue can dispose of the case. The first exception is where the other issues are unnecessary or academic and the second is where it will not occasion a miscarriage of justice, relying on Anyaduba vs. N.R.T.C. Ltd (1992) 5 NWLR (Pt.234) 535 @ 561. It was contended that the issue the lower court refused to deal with was unnecessary or academic, and that on the authority of Ozuda vs. Ebigah (2009) 7 S.C. 21 @ 43, a lower court is not under obligation to determine an issue if found to be unnecessary or academic.
Resolution of Issue 2.
It is beyond dispute that even though the lower court took the preliminary objection together with the originating summons, it did not determine the merit of the summons in the alternative after finding that it has no jurisdiction to hear and determine the Appellant’s suit. A court of law, particularly lower court, has a statutory duty to consider and decide on all issues raised and submitted to it for determination. In the case of Brawal Shipping (Nig.) Ltd vs. F. I. Onwadike Co. Ltd & Anor (2000) LPELR – 802 (SC), Uwaifo, JSC held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Owodunni vs. Registered Trustees of Celestial Church of Christ & 3 Others (2006) 6 SC (Pt.2) 60; Samba Petroleum Ltd vs. U.B.A. Plc (2010) 6 NWLR 530; Dingyadi vs. INEC (2010) LPELR – 40142 (SC); Sule vs. State (2009) LPELR – 3125 (SC).
I am in agreement with the submission of the Appellant’s counsel that the lower court erred in law in not determining the merit of the Originating Summons after finding that it has no jurisdiction to entertain the suit in accord with the preliminary objection. Since all the materials relied upon by parties at the lower court have been transmitted to this court in the Record of Appeal, I shall proceed under section 15 of the Court of Appeal Act, 2021, to determine the merit of the Appellant’s Originating Summons.
The Appellant’s complaint is that he won the primary election conducted by the 2nd Respondent for the Ward 3, Iperu Remo, Ikenne Local Government councillorship election held on 18/05/2021. But rather than submit his name as candidate for the election, the 2nd Respondent nominated the 1st Respondent as its candidate for the councillorship election. The Appellant therefore wants the court to declare him the duly nominated candidate of the 2nd Respondent and to restrain the 1st Respondent from parading himself as the candidate of the 2nd Respondent. He also wants the court to declare that the 2nd Respondent has breached the Electoral Act and its Constitution and Electoral guidelines. The scenario painted above clearly shows that the Appellant’s action is predicated on intra-party dispute, an internal/domestic affairs of the 2nd Respondent, for which the jurisdiction of the court is ousted. The Appellant’s foray into this litigation is predicated on the aperture provided by section 87 (9) of the Electoral Act, 2010 (as amended), a provision which permits an aspirant to go to court to challenge a political party’s non-compliance with the Electoral Act and its own rules in the conduct of primary election. Before the insertion of that subsection into the Electoral Act, the courts have held in plethora of authorities that on no account should courts entertain political questions pertaining to internal or domestic affairs of political parties, which includes the conduct of primary election and other processes of nomination and sponsorship of candidates generally. See PDP vs. Sylva (supra); Onuoha vs. Okafor (supra); Dalhatu vs. Turaki (supra). Now, the primary election which the Appellant challenged is a primary election to select a candidate for councillorship election and is not regulated by the Electoral Act. The question is whether this court can grant the claim of the Appellant who claimed to have won the primary election but was not nominated by his party, the 2nd Respondent. No matter how we try to wriggle out of it, the issue of the competence of the suit at the lower court continue to rear its head. Can this court turn round to pronounce on the substance of the claim in the face of the many decisions of the Supreme Court ousting the jurisdiction of the courts to entertain and make pronouncement on political questions and domestic affairs of political parties, especially in view of the non-applicability of the provisions of the Electoral Act, 2010, to Local Government election, which provides a window for such suits to be filed under section 87 (9) thereof? I believe that a situation such as this, where the law is well settled on a point, will constitute an exception to the rule that all courts below the Supreme court must pronounce on all issues presented before them. Where, head or tail, the decision of the court on the main claim will not be different from the determination of the preliminary objection, as in the instant case, the determination of the most important issue of jurisdiction should put the other issues to rest. Looking at the Appellant’s action on the merit, I find that his claim before the lower court is not grantable as the suit is non-justiciable. It is not within the province of the court to select for a political party which candidate to nominate, field and sponsor for election. I will therefore not grant the reliefs claimed by the Appellant in his Originating Summons. The Appellant’s claim before the lower court is dismissed. The Appellant’s appeal before this court is also dismissed for want of merit. Judgment of the High Court of Ogun State in Suit No. HCS/292/2021 delivered on 21/10/2021 by T.A. Okunsokan, J., is hereby affirmed. Parties to bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES.
Olasupo Olaibi with F.S. Daud for the Appellant.
A.A. Ajayi for the 1st and 2nd Respondents.
Kehinde Ogunwumiju, SAN, for the 3rd Respondent, leading
Ademola Abimbola, Lukman Sa’adu, Miss Funmilayo Longe,
Miss Lovelyn Osiele and Miss Lydia O. Akinsola.
