CORAM
KUDIRAT MOTONMORI KEKERE-EKUN
UWANU MUSA ABBA AJI
MOHAMMED LAWAL GARBA
IBRAHIM MOHAMMED MUSA SAULAWA
IBRAHIM JAURO
PARTIES
SHEHU MOHAMMED KOKO
APPELLANTS
1. SHEHU MOHAMMED BELLO KOKO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, ELECTION PETITION, CONSTITUTIONAL LAW, EVIDENCE
SUMMARY OF FACTS
Both the Appellant and the 1st Respondent are members of the 2nd Respondent, the All Progressives Congress (APC), and both contested the party’s primary election for the selection of its candidate for election into the House of Representatives for the position of Member representing Koko- Besse/Maiyama Federal Constituency of Kebbi State.
After the election held on 27th May, 2022, both the Appellant and the 3rd Respondent claimed to have won the election which led to the Kebbi State Chairman of the second responded declaring the primary election inconclusive. Predicated on this, a second election was conducted but not before the 1st Respondent had gone to court contesting the decision of the State Chairman of the 2nd Respondent. The Appellant emerged as the winner of the re-conducted primary election and His name was presented to INEC.
The Trial court declared that it lacked jurisdiction in the matter. In considering the suit on merit, the trial court decided that the 1st Respondent failed to prove his case by credible evidence. The first Respondent was dissatisfied by the decision of the trail court and Appealed to the Court of Appeal where it was held that the trial Court had jurisdiction to entertain the suit and that the 1st Respondent proved his entitlement to the reliefs sought.
The Appellant was peeved by the lower Court’s judgment and has now appealed against same via a Notice of Appeal anchored on 17 grounds. The appeal herein is against the judgment of the Court of Appeal, Sokoto Division, delivered on 23rd November, 2022, wherein the judgment of the Federal High Court, Kebbi Division was set aside, and the 1st Respondents claims were granted. The first Respondent also filed a notice of preliminary objection challenging the jurisdiction of the court to entertain the appeal.
HELD
Appeal Dismissed
ISSUES
Preliminary objection
Was the Court below not in error to have held that the trial Court had the requisite jurisdiction to entertain the 1st Respondent’s case and for no cogent reasons decline same?
Was the Court below correct in law when it failed to strike out grounds 6, 7, 9, 10 & 11 of the Notice of Appeal filed by the 1st Respondent; which grounds alleged both error of law and misdirection at the same time?
Whether from the peculiar nature of the evidence adduced by parties, the Court below was correct in law to have relied on the evidence of PW1, PW2, PW3, Exhibits Shehu J2, Koko A and Koko C to hold that there was a primary election conducted by the National Working Committee of the 2nd Respondent on the 27th of May, 2022 which produced the 1st Respondent as the winner of the primary election?
Was the Court below correct in law when it held that the State Chapter of the 2nd Respondent conducted the primary election that declared the Appellant as the winner of the primary election and therefore contrary to Paragraph 18(d) and (e) of the Guidelines of the 2nd Respondent decoded in Exhibit SHEHU J2?
Was the Court below correct in law to have held that the 1st Respondent had proved his claims before the trial Court with credible evidence?
RATIONES DECIDENDI
JURISDICTION – PRELIMINARY OBJECTION – CONDUCT OF THE COURT
It is settled that once a preliminary objection is raised by the Respondent in an appeal, the objection must be considered first before taking further steps to hear the appeal. It is prudent to do so, as the purpose of a preliminary objection is to terminate an appeal at its infancy. It will amount to nothing but a timewasting exercise to consider the merit of the appeal, only to discover that the preliminary objection had merit and that the Court lacked jurisdiction to entertain the appeal. See ABDULLAHI V. LOKO & ORS (2022) LPELR – 57578 (SC), BACKBONE CONNECTIVITY NETWORK (NIG.) LTD & ORS V. BACKBONE TECH NETWORK INC & ORS (2021) LPELR – 56884 (SC), MAINASARA V. FBN (2021) LPELR – 56612 (SC). – Per Adamu Jauro, JSC
ACADEMIC ISSUES – MEANING AND CONDUCT OF THE COURTS
An academic issue is one which would neither confer benefit on, nor injure any of the parties, but merely propound the law. A suit or appeal becomes academic when the questions placed before the Court for determination are no longer live issues in the subject matter of the suit. See EBEBI V. ESEMOKUMOR(2022) 1 NWLR (PT. 1812) 463, EBEBI V. OZOBO (2022) 1 NWLR (PT. 1810) 165, AGBAKOBA V. I.N.E.C. (2008) 18 NWLR (PT. 1119) 489. It is trite law that Courts do not act in vain. Courts are urged not to dissipate scarce judicial energy on the consideration of academic, hypothetical or moot issues/points. If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the Court will not entertain it. Put in other words, Courts have no jurisdiction to entertain academic issues. See OGHENEOVO & ANOR V. GOVERNOR OF DELTA STATE & ANOR (2022) LPELR – 58062 (SC), UZOHO & ORS V. NATIONAL COUNCIL OF PRIVATIZATION & ANOR (2022) LPELR – 57680 (SC), OKOTERE & ORS V. GWAGWA & ORS (2022) LPELR – 57535 (SC). – Per Adamu Jauro, JSC
APPEAL – IMPLICATIONS WHEN PARTIES FAIL TO APPEAL AGAINST A PARTICULAR FINDING, DECISION, OR HOLDING.
It is well settled that failure to appeal against a specific finding, decision or holding of a lower Court implies that the parties are satisfied by that finding or holding and same cannot be tampered with by an appellate Court. See NWIKO V. STATE (2022) LPELR – 57747 (SC), AKERE V. GOVERNOR, OYO STATE (2012) 50 11 NSCQR 345, UBA PLC V. B.T.L. IND. LTD. (2006) 19 NWLR (PT. 1013) 61. – Per Adamu Jauro, JSC
PRE-ELECTION MATTER – WHAT CONSTITUTES A PRE-ELECTION MATTER
The definition of a pre-election matter is contained in Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)…
The provisions of the… subsection are the yardstick for determining whether a suit qualifies as a pre-election matter. If the complaint(s) of a Plaintiff falls under the umbrella of the provisions, then it is a pre-election matter.
Per Adamu Jauro, JSC
EVIDENCE – CONDUCT OF THE COURT
What is important is whether having regard to the admissible evidence on record, the decision of the lower Court was correct. – Per Adamu Jauro, JSC
ISSUES – THE POWER OF APPELLATE COURTS TO ADOPT AND FORMULATE ISSUES
It ought to be borne in mind that an appellate Court is at liberty to adopt the issues formulated by the Appellant or those of the Respondent, and the Court can even formulate its own issues. The principal consideration in formulation or adoption of issues is that the Court should adopt and resolve issues that would determine the real and actual grievances of the parties. See POLARIS BANK LTD v. FORTE OIL PLC (2022) LPELR – 58598 (SC), CBN & ORS v. OKOJIE (2015) LPELR- 24740 (SC), DANIEL v. INEC & ORS (2015) LPELR – 24566 (SC).
Furthermore, this Court being the final Court in the adjudicatory ladder is best placed to decide which issues are relevant to the determination of an appeal. Trial Courts and intermediate Courts are always admonished to consider and determine all the issues submitted for their determination.
Per Adamu Jauro, JSC
PRIMARY ELECTIONS – CONFLICTING CLAIMS – THE DUTY OF THE COURT TO DETERMINE THE AUTHENTIC PRIMARY ELECTION
In a situation where parties lay conflicting claims to primary elections, it is the duty of the Court to determine which of the elections is the authentic primary election. In AZUBUOGU V. ORANEZI (2018) 5 NWLR (PT. 1613) 447 at 462, Paras- A – F, this Court, per M.D. Muhammad, JSC held thus:
“Granting without conceding that paragraph 31 of the statement of claim is an actual reference to three primaries, one must agree with learned 1st respondent’s counsel that, unlike the trial Court, the lower Court in the discharge of its responsibility rightly insists that 1st respondent action is still justiciable. In Ugwu v. P.D.P. (supra) this Court per Aka’ahs, JSC at page 478 of the law report has enthused as follows:-
“I am of the considered view that the trial Court will be abdicating its responsibility if it declares that the suit is not justiciable. It has a duty to say which of the two primaries is the authentic one. This is the reason while Section 87(4)(c)(i), and has been put in place and to avoid arbitrariness by some officials of the political party who may want to impose their preferred candidates who probably did not take part in primaries because of the conflicting claims by the parties. It is only the Court that could resolve the issue. This is the dimension which the decision in C.P.C. v. Ombugadu (supra) introduced.”
One is unable, in the light of the facts of this matter and the applicable law, therefore, to agree with learned appellant counsel’s submission that the trial Court’s manifestly perverse decision, properly adjudged so and set aside by the lower Court, be restored.
The 1st respondent having participated in the 2nd respondent’s primary election is the aspirant the Electoral Act in Section 87(4) provides a platform for to seek the reliefs he circumscribes in his claim.”
Per Adamu Jauro, JSC
PLEADINGS – CONDUCT OF THE COURT
It is trite that pleadings are not to be considered in fragments. In order to get the whole idea of a party’s case, his pleadings must be considered holistically. See OSTANKINO SHIPPING CO. LTD V. THE OWNERS OF THE MT BATA 1 & ORS (2021) LPELR – 58308 (SC), ADAMA & ORS V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR – 47424 (SC), AZUBUOGU V. ORANEZI & ORS (2017) LPELR -42669 (SC).
Per Adamu Jauro, JSC
GROUNDS OF APPEAL ALLEGING BOTH ERROR OF LAW AND MISDIRECTION – WHAT TO CONSIDER
The law is that a ground of appeal that alleges both error of law and misdirection is not ipso facto incompetent. What is important is to consider whether the complaint of the Appellant is distillable therefrom. If the grouse of the Appellant can be easily deduced from the ground, the consideration of whether it alleges both error of law and misdirection of facts is rendered immaterial.
As long as the Respondent is not misled by the ground, it becomes irrelevant whether the grounds allege both error of law and misdirection of facts. See AIGBOBAHI & ORS V. AIFUWA & ORS (2006) LPELR – 267 (SC), GARUBA V. K.I.C LTD & ORS (2005) LPELR – 1310 (SC); HAMBE & ANOR V. HUEZE & ORS (2001) LPELR – 1350 (SC).
Per Adamu Jauro, JSC
TECHNICALITIES – DUTY OF THE COURT TO THE PUBLIC
The objection is one which borders on technicality which is dead and buried, never to be resurrected again. The Courts now aim to always do substantial justice and every obstruction to achievement of that aim must be demolished in order that the duty of the Court to the public will be achieved.
Substantial justice will not be sacrificed on the altar of technicality when the Appellant clearly had notice of the triable issues raised in the contentious grounds.
Per Adamu Jauro, JSC
EVALUATION OF EVIDENCE – THE DUTIES OF THE COURTS
It is a well-known principle that evaluation of evidence and ascription of probative value thereto are the duties of the trial Court who had the privilege and advantage of seeing the witnesses and observing their countenance. Where the question of evaluation has to do with credibility of witnesses, it is the trial Court that can properly perform that role. Appellate Courts can do very little as they only have the printed record of appeal to work with.
However, where the question has to do with improper evaluation or non-evaluation of evidence on record or evaluation of documentary evidence, an appellate Court is in as good a position as the trial Court to evaluate evidence. Overall, the duty to evaluate evidence lies squarely with the trial Court.
Where the trial Court has properly evaluated evidence on record, an appellate Court has no business with re-evaluating evidence. It is only where the trial Court has failed to perform its duty to evaluate evidence or where it is improperly done so that an appellate Court can step in to re-evaluate evidence.
See BELLO V. F.R.N (2019) 2 NWLR (PT. 1656) 193, UKANACHO V. A.-G. IMO STATE (2018) 14 NWLR (PT. 1638) 106, BUSARI V. STATE (2015) 5 NWLR (PT. 1452) 343.
Per Adamu Jauro, JSC
GUIDELINES AND CONSTITUTIONS OF POLITICAL PARTIES – POLITICAL PARTIES MUST NOT ACT ARBITRARILY
Guidelines and Constitutions of political parties are not made for the sake of it. They are meant to guide the affairs of the parties and their members. In particular, Guidelines for the conduct of primary elections are to be complied with by political parties when they hold primaries to select their candidates for elective positions.
In A.P.C. V. MARAFA (2020) 6 NWLR (PT. 1721) 383 at 434 – 435, Paras F – B, the rule was emphasized thus: “This Court has held in several cases that when it comes to issues relating to the selection and nomination of candidates for an election, political parties must not act arbitrarily but within the confines of their Constitution and electoral guidelines and in accordance with the provisions of the Electoral Act. Political parties must obey their Constitution and electoral guidelines.”
See Ayogu Eze v. PDP & Ors (2018) LPELR – 44902 (2019) 1 NWLR (Pt. 1652) 1, Senator Abubakar Saddiq Yar’Adua & Ors v. Senator Abdu Umar Yandoma & Ors (2015) 4 NWLR (Pt. 1448) 123, pages 182-183; Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55. Where a political party fails to comply with the provisions of its Constitution and electoral guidelines, an aggrieved candidate who contested in that primaries is empowered to ventilate his grievance before…
Per Adamu Jauro, JSC
APC GUIDELINES – POWER TO CONDUCT PRIMARY ELECTIONS – THE NATIONAL WORKING COMMITTEE
The APC Guidelines for the Nomination of Candidates for the 2019 General Election, with similar provisions to its Guidelines for the Nomination of Candidates for the 2023 General Election were considered in the case of AKPATASON V. ADJOTO (2019) 14 NWLR (PT. 1693) 501 wherein the Court made it clear thus:
“Paragraph 20(d) of the 2nd respondent’s Guidelines has restricted the power to conduct primary elections to the Electoral Committee constituted by the National Working Committee only, and Hon. Sufiyanu Igbafe not being a member of such committee was just a meddlesome interloper in the conduct of 2nd respondent’s primary election in Akoko-Edo Federal Constituency.”
Per Adamu Jauro, JSC
PRIMARY ELECTIONS – A STATE CHAPTER OF A POLITICAL PARTY CANNOT CONDUCT PRIMARY ELECTIONS
It was also held in AKPATASON V. ADJOTO (supra), relying on the decision in EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556, that the state Chapter of a political party cannot conduct a primary election and any primary so conducted is illegal.
The result of the primary election conducted by the subcommittee set up by the Kebbi State Executive of the party was the foundation for Exhibit Shehu K.
The result of an illegal primary election cannot produce a candidate. Ex nihilo nihil fit – from nothing comes nothing; you cannot base the emergence of a candidate on an illegally conducted primary, both will collapse.
Per Adamu Jauro, JSC
PRIMARY ELECTION – CONDUCT OF POLITICAL PARTIES
The guidelines of the 2nd Respondent having vested the power to appoint Electoral Committee on the NWC of the party, it was ultra vires of the Kebbi State Chapter of the party to appoint a committee, subcommittee or a body with any other appellation to conduct the primary election that purportedly led to the emergence of the Appellant as the party’s candidate for the position of member of the House of Representatives representing Koko-Besse/Maiyama Federal Constituency of Kebbi State.
The primary election having been conducted in blatant violation of the 2nd Respondent’s Guidelines is null and void. See UBA V. MOGHALU & ORS (2022) LPELR – 57876 (SC), A.P.C. V. MARAFA (supra), AGHEDO V. ADENOMO (2018) 13 NWLR (PT. 1636).
Per Adamu Jauro, JSC
PRIMARY ELECTION – CONDUCT OF POLITICAL PARTIES – POLITICAL PARTIES ARE BOUND BY THE RESULTS OF THEIR PRIMARY ELECTIONS
I would want to emphasize that after the conduct of political party primaries by a committee of the National Working Committee in line with Electoral Act and Party Guidelines for the conduct of Primary Elections where an aspirant emerges the winner and was so declared, the party cannot, for any reason or under any pretense, nullify such primaries for the purpose of ordering fresh or another primary, subsequently.
The political party is bound by the result of such primaries conducted in accordance with the Electoral Act and its own Constitution and Guidelines and so under a legal duty to comply with the provisions to forward the name of the aspirant declared the winner, to the INEC as the candidate of the party for the election in question.
Per Mohammed L. Garba, JSC
POLITICAL PARTIES – THEY ARE BOUND BY THE PROVISIONS OF THE ELECTORAL ACT
Although the political party has the right to choose and select the candidates it would sponsor for elections, the process of selection and nomination of such candidates must be in strict compliance with the Electoral Act and guidelines enacted by the party to regulate and govern it. The process of the selection and nomination of candidates is not completely left at the whims and caprices of the political party but is specifically provided for in Section 84 (1) – (12) of the Electoral Act as well as the guidelines for Party Primaries provided by the political parties.
These provisions must be complied with for the selection/nomination of candidates to be valid in law under the Electoral Act as the Act, in Section 84 (13), has provided the penalty for breach or non-compliance by a political party in the process.
This Court has consistently stated and restated the law that political parties are bound, I should say, strictly, by the provisions of the Electoral Act, their Constitution, and guidelines in the conduct of party primaries for the purpose of selecting candidates to be nominated as candidates by the parties for elections. See the decisions in Yar’adua v. Yandoma (2015) 14 NWLR (pt. 1448) 123, Emeka v. Okadigbo (2012) 18 NWLR (pt. 1331) 55, PDP v. Oranezi (2018) 7 NWLR (pt. 1618) 260, APC v. Lere (2000) 1 NWLR (pt. 1705) 254, Musa v. Umar (2000) 11 NWLR (pt. 1735) 231, Jegede v. INEC (2021) 14 NWLR (pt. 1797) 409, Aguma v. APC (2021) 14 NWLR (pt. 1796) 351, Uba v. Moghalu (2022) 15 NWLR (pt. 1853) 271 at 311-312, APC v. Marafa (2020) 6 NWLR (pt. 1721) 383. Political parties must learn to play by the rules of the game of constitutional democracy as prescribed in the Electoral Act, their Constitution, and guidelines specifically enacted by them to regulate and govern primary elections and the nomination of candidates for elections in the country.
The courts, in the discharge of their constitutional role as “Impartial Referees” assisted by “V.A.R”, are there to ensure that the game is played by the rules by all stakeholders in our practice of democracy.
Per Mohammed L. Garba, JSC
CASES CITED
STATUTES REFERRED TO
The Constitution of the Federal Republic of Nigeria 1999 (as amended)
APC Guidelines and Constitution