CORAM

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Muhammed Lawal Shuaibu JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Abdul-Azeez Waziri JCA

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PARTIES

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LABOUR PARTY (LP)

APPELLANTS 

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1. ELUMELU NDUDI GODWIN

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

4. OKOLIE NGOZI LAWRENCE

RESPONDENTS 

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AREA(S) OF LAW

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AREAS OF LAW: APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

On the 25th of February, 2023, the 3rd Respondent (INEC) conducted the election to elect the member to represent Aniocha/Oshimili Federal Constituency in the House of Representatives of the National Assembly in which the 4th Respondent contested on the platform of the Appellant while the 1st Respondent contested the said election under the platform of the 2nd Respondent. At the end of the election, the Appellant was declared the winner and returned as elected.

​Being dissatisfied, the 1st Respondent and his party, 2nd Respondent as the runner up at the election filed a petition to challenge the declaration and return of the 4th Respondent as the elected candidate before the lower Tribunal on the grounds inter alia that the 4th Respondent was at the time of the election not qualified to contest the election and that no valid primaries was conducted in obedience to the provisions of the Electoral Act.

The Tribunal entered judgment in favor of the 1st and 2nd Respondents who were the petitioners therein. Dissatisfied, the Appellant filed the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the Honorable tribunal had the jurisdiction to hear and determine the subject

matter of the petition?

Whether the learned trial tribunal properly evaluated both the admissible oral and documentary evidence adduced before it to arrive at its judgment delivered on 24th July, 2023?

Whether the Honorable judges and member of the election tribunal correctly determined that the Appellant did not hold any primary election whereas the 4th Respondent was nominated as its candidate thus rendering his sponsorship, invalid?

 

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RATIONES DECIDENDI

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COURTS – CONDUCT OF COURTS WHERE A PRELIMINARY OBJECTION IS FILED

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Where as in the instant case, a Respondent filed a preliminary objection to an appeal, the usual practice always is to determine the preliminary objection first so as to know what line of action next, the Court shall adopt. – Per M. L. Shuaibu, JCA

 

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GROUNDS OF APPEAL – REQUIREMENTS OF GROUNDS OF APPEAL

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The provisions of Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 provides for contents and requirements of notice of Appeal. Subrules (2) and (3) thereof provide thus:

“(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth, concisely and under distinct heads, the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. Furthermore, Rule 3 of these Rules states:

“3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence. A ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court suo motu or on application by the Respondent”.

From the above, what the rules of Court are concerned with or frown at are grounds of appeal which are vague or general in terms or which disclose no reasonable grounds of appeal. In LANLEHIN V. AKANBI (2016) 2 NWLR (PRT 1495) 1 at 16, this Court has held that unwieldy, repetitive or argumentative grounds are not such that can be struck out under the Court of appeal rules. It was similarly held in TSADO V. REGISTRAR UNIVERSITY OF TECHNOLOGY MINNA & ORS (2019) LPELR – 48745 (CA) that an omission to expressly state that the error is one of the law or fact did not render the said grounds of appeal vague nor defeat their purpose as a ground of appeal. – Per M. L. Shuaibu, JCA

 

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GROUND OF APPEAL – WHERE A CONSIDERATION IS WHETHER A GROUD OF APPEAL IS OF ERROR IN LAW, FACT OR SUBSTANCE

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It is also pertinent to note that a consideration whether a ground of appeal is of error in law, in fact and in substance, is a complain that it is against evaluation, assessment, weight of evidence, findings of fact or a complaint of misdirection on the facts or mixed law and fact. See BOARD OF CUSTOM & EXCISE V. BARAU (1982) 10 SC 48 at 143 and YUSUF V. UBN (1996) 6 NWLR (PRT 457) 632. – Per M. L. Shuaibu, JCA

 

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JURISDICTION – MEANING OF JURISDICTION – WHERE A COURT IS REGARDED TO BE VESTED WITH JURISDICTION

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Jurisdiction on a broad sense, encompasses legal capacity, power or authority of a Court. The competence of a Court is the handmaid of jurisdiction of a Court. Thus, a Court must have both jurisdiction and competence to be properly seized of a cause or matter. Jurisdiction of Court in that sense means the legal capacity, power or authority vested in it by the Constitution or statute creating the Court. See DANGANA V. USMAN (Supra). In the famous cases of the apex Court in MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and GALADIMA V. TAMBAI (2000) 11 NWLR (PRT 692) 684, it was held that a Court is competent to entertain a case when;

(a) 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

(b) 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

(c) The case comes before the Court initiated by the due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. – Per M. L. Shuaibu, JCA

 

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JURISDICTION AND LOCUS STANDI – HOW JURISDICTION AND LOCUS STANDI ARE ASCERTAINED – IMPORTANCE OF JURISDICTION AND MEANING OF LOCUS STANDI

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It is also settled that jurisdiction being a threshold issue, it must be decided once it is raised and quickly too. A trial or a hearing conducted without jurisdiction amounts to a wasted effort, a complete nullity no matter how well the matter was decided. Perhaps, I may need to state also the concept of locus standi denotes the legal capacity to institute proceedings in a Court of law.

And for a person to have locus standi to sue, all he needs to do is to show that he has sufficient interest in the subject matter of the action and that his civil rights and obligations have been or are in danger of being infringed. In both cases, it is the statement of claim that are to be carefully scrutinized in order to ascertain whether the Court has the necessary vires to hear the matter or whether the plaintiff has locus standi to sue or not. See OWODUNI V. REGD TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (PRT 675) 315; THOMAS V. OLUFOSOYE (1986) 1 NWLR (PRT 18) 669 and OJUKWU V. OJUKWU (2008) 18 NWLR (PRT 164) 618. – Per M. L. Shuaibu, JCA

 

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POLITICL PARTIES – DUTY OF POLITICAL PARTIES TO HOLD PRIMARY ELECTIONS FOR ASPIRANTS TO ALL ELECTIVE POSITIONS

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The provisions of Section 84 of the Electoral Act 2022 explicitly provides as follow:

“84. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the commission.

(2) The procedure for the nomination of candidates by political parties for various elective positions shall be by direct, indirect primaries or consensus”.

The provisions of Section 84 of the Electoral Act 2022, which was reproduced earlier made it mandatory for a political party seeking to nominate candidate for election to hold primaries and also the provisions of Section 65(2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides inter alia that a person shall be qualified for election into the House of Representatives if he is a member of a political party and is sponsored by that party.

By virtue of Section 134(1)(a) of the Electoral Act, 2022 an election may be questioned on ground that a person whose election is questioned was at the time of the election not qualified to contest the election. – Per M. L. Shuaibu, JCA

 

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NOMINATION – WHETHER AN ELECTION TRIBUNAL HAS JURISDICTION OVER AN ISSUE OF NOMINATION EXERCISE OF A PARTY

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…the power of an election Tribunal to decide whether a person is qualified to contest an election pursuant to Section 134(1)(a) of the Constitution is restricted and circumscribed to establishing the requirements of Sections 65 and 66 of the 1999 Constitution (as amended) against the adverse party. No matter what nomenclature the petitioners wants to christen and/or describe the nature of their petition, the fact is that nomination exercise of a political party remains a pre-election matter over which the election tribunal has no jurisdiction. See SHINKAFI V. YARI (2016) 7 NWLR (PRT 1511) 340, TARZOOR & ORS V. IORAER (2015) LPELR-25975 (CA) and UCHA V. ONWE (2011) 4 NWLR (PRT 1237) 386.

​I am however not unmindful of the Supreme Courts decision in DANGANA V. USMAN (Supra) PER ONNOGHEN, J.S.C (as he then was) at pages 89 – 90, paras F. H:

“With the above provision in view, it will be very unsafe to agree with the submission of learned senior counsel for the Appellant that the issue involved in this case was strictly a pre-election matter in which an election Tribunal has no jurisdiction to hear and determine and that only the high Courts have jurisdiction to deal with the matter. I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended) is a pre-election matter over which an election Tribunal has no jurisdiction. I however, agree that the qualification/disqualification to contest an election is both a pre-election and an election matter.

However, in the instant case, Section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an election Tribunal by expressly making the issue of qualification of a candidate to contest an election a ground in an Election petition challenging or questioning the return of the winner of the said election. I therefore hold that considered view that an issue of qualification of a candidate to contest an election under the electoral Act 2010 (as amended) is both a preelection and an election matter which both the high Courts and the relevant election tribunal have jurisdiction to hear and determine.”

Evidently, the above position was abrogated and improved upon in the later decisions of the apex Court. In WADA V. BELLO (2016) 17 NWLR (PRT 1542) 374 AT 447, it was explicitly held that a Court is bereft of any jurisdiction to determine who a political party should sponsor as its candidate. The nomination and sponsorship of a candidate is a matter within the domestic affairs of a political party over which no jurisdiction except as provided for in Section 87(9) now Section 285(14) of the 1999 Constitution (as amended). In effect, in dispute of nomination of political party’s candidate for an election, the jurisdiction of Court is granted on the provisions of Section 87(4)(c)(ii) and now Section 84(14) of the Electoral Act, 2022. Furthermore, in AL-HASSAN V. ISHAKU Supra), the issue was laid to rest by the apex Court that an election tribunal has no jurisdiction to inquire into the primaries of a political party. It has no jurisdiction to comment or examine how the party primaries were conducted. The reason is not farfetched, that jurisdiction for such an exercise resides with the Federal High Court by virtue of Section 84(14) of the Electoral Act, 2022. – Per M. L. Shuaibu, JCA

 

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LOCUS STANDI – CONDITIONS FOR A PERSON TO HAVE LOCUS STANDI TO SUE

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I have stated elsewhere in this judgment that for a person to have locus standi to sue, all the needs to do is to show that he has sufficient interest in the subject matter of the action and that his civil rights and obligation have been or are in danger of being infringed. – Per M. L. Shuaibu, JCA

 

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PRE-ELECTION MATTERS – THE SCOPE OF PRE-ELECTION MATTERS – THE APPROPRIATE COURTS TO VENTILATE PRE-ELECTION MATTERS AND THE PARTIES THAT CAN COMPLAIN OF PRE-ELECTION MATTERS

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By virtue of Section 84(14) of the Electoral Act, 2022, notwithstanding the provision 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 above provision is in pari material with Section 87(9) the Electoral Act, 2010 and same has been subjected to interpretations by this Court and the apex Court. In ARGUNGU & ANOR V. ARGUNGU & ORS (2008) LPELR – 4275 (CA), it was held that issue relating to nomination, withdrawal and substitution are clearly pre-election matters which are matters to be ventilated either in the High Court of a State or Federal High Court. Election Tribunals are set up under Section 285(1) of the 1999 Constitution and their jurisdiction is also prescribed by the same Section. Nothing in that Section subjects that pre-election matters relating to nomination, substitution or withdrawal can be ventilated at the election tribunal.

The provisions of Section 84(14) of the Electoral Act, 2022 is only available to a dissatisfied aspirant who participated in his party’s primaries. It confers jurisdiction on the Court to hear complaints from a candidate who participated at his party’s primaries and complains about the conduct of the primaries. Thus, only a candidate who participated in the primaries can question the conduct of the primaries and the appropriate forum for such challenge is the Federal High Court. No other person, whether within the political party or outside of it can ventilate his grievance arising from party nomination. See ONUOHA V. OKAFOR (1983) 2 SCNLR 244 DALHATU V. TURAKI (2003) 15 NWLR (PRT 843) 310 PDP V. SYLVA (2012) 13 NWLR (PRT 1316) 85 and AL-HASSAN V. ISHAKU (SUPRA). – Per M. L. Shuaibu, JCA

 

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JURISDICTION – IMPORTANCE AND EFFECT OF JURISDICTION

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It is imperative to note that jurisdiction remains the bedrock of any judicial proceedings and its absence or any defect in it renders any proceedings a nullity no matter how well conducted. – Per M. L. Shuaibu, JCA

 

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COURTS – DUTY OF AN INTERMEDIATE COURT TO CONSIDER ALL ISSUES RAISED BEFORE IT

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…an intermediate Court such as the Court of Appeal has a duty to consider all the issues that are properly raised before it in the event the Courts decision on point or points considered is being reversed on further appeal. Then, the decision of the Court on other points may be considered for a final determination of the appeal. In TRIOVERSAL DESIGN ASSOCIATES V. COMMISSIONER FOR HEALTH & HUMAN SERVICES, YOBE STATE (2020) 4 NWLR (PRT 1714) 1243, it was held that where a Court is not the highest Court in juridicial hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties and to leave the other issues unresolved. Thus, it is incumbent on such a Court, to resolve that issue even if it is an issue of jurisdiction. – Per M. L. Shuaibu, JCA

 

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PARTIES – CONDUCTS OF PARTIES IN ADJUDICATION

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Parties and counsel must be consistent in the handling of their cases both at the trial and on appeal. See AJIDE V. KELANI (1985) SC 1. Thus, it does not serve the cause or end of justice to be inconsistent or flippant; cases must not be won at all costs. In approximating justice, ministers in the temple of justice should assist the Court honestly and fairly. – Per M. L. Shuaibu, JCA

 

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APPEAL – HOW PARTIES ARE TO CONDUCT APPEALS

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Furthermore, appeal is generally regarded as a continuation of the original suit rather than the inception of a new one and that in an appeal, parties are confined to their case as pleaded in the Court of first instance. See ADEOKIN RECORDS & ANOR V. MUSICAL COPYRIGHT SOCIETY OF NIGERIA (LTD) (GTE) ​(2018) LPELR – 45300 (SC). – Per M. L. Shuaibu, JCA

 

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BURDEN OF PROOF – MEANING OF BURDEN OF PROOF IN CIVIL CASES

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The phrase, burden of proof in civil cases has two distinct meanings. The first is the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or burden of establishing a case. The second is the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable or static; the burden of proof on the other hand may oscillate constantly. Thus, burden of proof in civil cases initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice-versa. – Per M. L. Shuaibu, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION MATTERS

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The burden of proof in an election petition matter lies on the petitioner who is to adduce cogent evidence in proof of his assertion. Also where a petitioner alleges that a Respondent is not qualified to contest a particular election, the burden is on such a petitioner to establish his allegation. See BUHARI V. INEC (2009) ALL FWLR (PART 459) 419. By virtue of Sections 135 and 136 of the Evidence Act 2011, the burden of presenting evidence in proof of the fact in issue is on the petitioners since they were the persons who assert the fact and must prove it and it is them (the petitioners) who would fail if no evidence at all is called. – Per M. L. Shuaibu, JCA

 

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PROOF – BURDEN AND STANDARD OF PROOF IN AN ELECTION

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…given the fact that where an election petition is declaratory in nature, it is incumbent on the petitioner to prove his case and not rely on the absence of evidence by the Respondent. Let me repeat again that the onus is always on the petitioner to satisfy the Court with cogent and compelling evidence properly pleaded, that he is entitled to the declaration sought. Admissions by the defendant may not satisfy as proof. It is only after the petitioner has proved his case that the onus would shift to the Respondent. See OMISORE V. AREGBESOLA (Supra). – Per M. L. Shuaibu, JCA

 

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SPONSORSHIP AND NOMINATION – WHETHER A COURT CAN DELVE INTO THE ISSUE OF SPONSORSHIP OR NOMINATION OF CANDIDATES BY A POLITICAL PARTY

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It is not in doubt that issue of qualification is both primary and post primary which a Court or Tribunal can venture into. It has been held in a multiplicity of decided cases/authorities of both this Court and the Apex Court that it is the duty of a political party to determine its Candidate through a process of primary election. No Court has the power to delve into the issue of nomination by or of a Candidate chosen or nominated by a political party as that issue is non-justiciable and Courts lack jurisdiction. I seek to emphasize further that issue of sponsorship and nomination are matters which are completely within the internal consideration of a political party and it is not open to an outsider or even a party member who did not participate in the primaries to challenge same. It is a matter which comes within the domestic priority of the party and is within its sole discretion. Judicial authorities are numerous and well established that a Court is bereft of any jurisdiction to determine who a political party should sponsor as its candidate. See the cases of PDP & Anor vs. Timipre Sylva & Ors (2012) LPELR – 7814 (2012) 13 NWLR (Pt.1316) 88; Tarzor vs. loare & 2 Ors (2016)3 NWLR (Pt.1500) 463 at 498-499.

The position of the law has been made clearer in Shinkafi vs. Yari (2006)7 NWLR (Pt.1511) 340. – Per Abdul-Azeez Waziri, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Election Judicial Proceedings Practice Directions, 2023.

3. Court of Appeal Rules, 2021.

4. Electoral Act, 2022

5. Evidence Act 2011