Legalpedia Citation: (2023-04) Legalpedia 90939 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Apr 28, 2023

Suit Number: SC.CV/392/2023

CORAM

John Inyang Okoro Justice, Supreme Court

Uwani Musa Abba Aji Justice, Supreme Court

Ibrahim Mohammed Musa Saulawa Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

NWAFOR CHRISTIAN O.

APPELLANTS

1. BARR. NOMEH CHIKAODILI INNOCENT
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 2nd Respondent (PDP) fixed 28/5/2022 for the Ebonyi State House of Assembly primary election, which was conducted and monitored by the 3rd Respondent (INEC) and the petitioner at the trial court (1st Respondent) emerged, having polled the highest lawful votes cast and was duly returned as the flagbearer of the 2nd Respondent for Ezza North West State Constituency of Ebonyi State House of Assembly in the 2023 general elections. That the Appellant and his factional members did not participate in the said primary election of 28/5/202. However, that the National Chairman and National Secretary on 31/5/2023 in a press release cancelled the said primary election of 28/5/2023, which decision was promptly challenged by the petitioner before the Federal High Court, Abakaliki, in Suit FHC/AI/CS/88/2022. During the pendency of the suit, the 2nd Respondent proceeded to conduct another primary election on 4/6/2022, which the petitioner did not participate in.

Contrary to the Party’s Guidelines, the Constitution and the Electoral Act, the name of the Appellant was rather submitted to the 3rd Respondent by the 2nd Respondent as its candidate for Ezza North West State Constituency, Ebonyi State.

Aggrieved, the 1st Respondent filed his originating summons before the Federal High Court, Abakaliki. The trial Court dismissed the case of the 1st Respondent and on appeal by the 1st Respondent to the lower Court, his appeal was allowed; hence this appeal by the Appellant.

HELD

Appeal dismissed

ISSUES

1. Whether the Peoples’s Democratic Party can validly nominate or sponsor the Appellant as the authentic candidate of the party for Ezza North West State Constituency in the forthcoming 2023 general election (sic)?
2. Whether the lower Court was right when it held that the trial Court wrongly placed reliance in its earlier decisions that the 2nd Respondent’s primary elections conducted on 28th/29th May, 2023 was the authentic primary election of the party?

RATIONES DECIDENDI

PROLIFERATION OF ISSUES – MEANING AND EFFECT OF PROLIFERATION OF ISSUES – CONDUCT OF A RESPONDENT IN FORMULATING ISSUES FOR DETERMINATION

The law is trite that none of the parties is allowed to proliferate issues. Proliferation of issues occurs when two issues are raised from one ground of appeal. When this occurs as in the instant appeal, the issues so raised are incompetent and must be avoided. See Per JAURO, JSC, in NUP V. INEC (2021) LPELR-58407(SC) (PP. 8-9 PARAS. E).

Besides, as a Respondent, the 1st Respondent, who has not cross-appealed, cannot raise four issues from only two grounds of appeal that the Appellant has proposed. All issues must be anchored and bedrocked upon a ground of appeal and to do so will be contrary to the law and principles of pleadings. – Per U. M. Abba-Aji, JSC

ISSUES – CONDUCT OF RESPONDENTS IN FORMULATION OF ISSUES

Like pleadings to litigation between the parties, the issues formulated are intended to accentuate the real issues for determination before the Court. The issues for determination accentuate the issues in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of errors alleged. Hence, the issues for determination cannot and should not be at large but must fall within the purview of the grounds of appeal filed. See Per OGUNDARE, JSC, in EHOT V. STATE (1993) LPELR-1055(SC) (PP. 29-30 PARAS. E). Per GALUMJE, JSC, in ANYANWU V. EZE & ORS (2019) LPELR-48740(SC) (PP. 6-7 PARAS. E), added to this, when he held:

“By formulating three issues each, the 1st and 2nd Respondents seem to be crying more than the bereaved. The Appellant, who is aggrieved by the decision of the lower Court issued only two issues for determination of this appeal. Although the Respondents are entitled to either adopt the issues formulated by the Appellant, give the issues a slant in favour of his own side of his case or formulate his own issues derivable from the grounds of appeal, it is always desirable that the Respondent should not formulate more issues than the Appellant.” – Per U. M. Abba-Aji, JSC

ELECTION – DUTY OF A PARTY CONTESTING THE LEGALITY OR LAWFULNESS OF VOTES CAST IN AN ELECTION AND THE SUBSEQUENT RESULT

A party who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election… The documents are amongst those in which the results of the votes are recorded… Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. See Per TOBI, JSC, in BUHARI V. INEC & ORS (2008) LPELR-814(SC) (PP. 172-173 PARAS. E).  – Per U. M. Abba-Aji, JSC

ELECTION – THE CONDUCT OF PARTIES IN NOMINATING THEIR CANDIDATES FOR GENERAL ELECTIONS

Section 84 (5) (C) (i)(ii) of the Electoral Act, 2022, which provides for the conduct of voting by delegates and declaration of the winner with the highest number of votes. “In the case of nominations to the position of a senatorial candidate, a member of House of Representatives and a Member of a State House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates… (ii) The aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.” It follows then, from a literal interpretation of the above provision, only the name of the winner of a primary election, can be submitted to INEC. See Per NWEZE, JSC, in ABDULLAHI V. ARGUNGU & ORS (2023) LPELR-S9950(SC) (PP. 15-18 PARAS. F).

Article 12 (a) of the 2nd Respondent’s Electoral Guidelines for Primary Elections, 2022, is pari materia with the above section of the Electoral Act, 2022. The party must therefore respect and honour its Guidelines or Constitution. Parties are bound by the Constitution of Nigeria, the Electoral Act and their own Constitution and guidelines. Where they act contrary to the provisions of the law and the guidelines which they have enacted for themselves, such actions will be declared invalid. In its conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own Constitution. See Per GALUMJE, JSC, in AKPATASON V. ADJOTO & ORS (2019) LPELR-48119(SC) (PP. 10-11 PARAS. D-D).

To cap it all, Section 84 (13) of the Act stipulates the penalty for failure to comply with or breach of the provisions of the Act in the conduct of primary election by a political party. It provides that: – “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”. – Per U. M. Abba-Aji, JSC

CANDIDATES – CONDUCTS OF POLITICAL PARTIES IN CHOOSING THEIR CANDIDATES FOR GENERAL ELECTIONS

Whether it is in the “best interest of the political party” or not in nominating and sponsoring a candidate for general elections, it must act within the bounds of the law and not in its own interest. “In its own interest” is no longer obtainable but in “the interest of the law”. When a political party acts “in its own interest” and goes contrary to the law, the Court has the jurisdiction to intervene even it in domestic/internal affairs. Per UWANI MUSA ABBA AJI, JSC, in UBA V. MOGHALU & ORS (2022) LPELR-57876(SC) (PP. 9-12, PARAS. A-C), considered this matter last year even before the coming in of the Electoral Act, 2022, thus:

“… in making its choice, a political party must act within the law and must comply with its own Constitution and guidelines… While the actual choice of candidate is within the domestic affairs of the party, which is not justiciable, the party must adhere strictly to the provisions of the Electoral Act, and its own Constitution and guidelines in carrying out the exercise. Section 87(9) empowers the Court to intervene where a party (as in this case) has acted arbitrarily and with impunity.”

There is the need for the political party to stick to the Electoral Act, the Constitution and its party guidelines. Otherwise, there are definitely and certainly circumstances where the Court will have jurisdiction over the issue of nomination of candidate for an election. Per UWANI MUSA ABBA AJI, JSC, in UBA V. MOGHALU & ORS (2022) LPELR-57876(SC) (PP. 18-20, PARAS. F-D) AND (PP. 20-22, PARAS. D-C) held respectively:

“Although the Primary Election Appeal Committee had appealed that the said wrongly conducted primary election of 26/6/2021 be “allowed to stand in the overall interest of the party”, it never played its role well in always ensuring that everybody ought to play by the Party’s Guidelines, otherwise it will lay a precedence of lawlessness and disorderliness in the party’s internal democracy that will soon split in pieces. The Courts would have respected the choice of a party’s candidate and has always done that but not when the party itself has gone against its own guidelines or Constitution… The purport is that, so long as political parties adhere to the provisions of their constitutions in the choice of candidates for political office, the Courts will not interfere… Since the 3rd Respondent has not adhered to its party’s guidelines, this Court, like any other Court armed with requisite jurisdiction must interfere.

I need not emphasize the supremacy and bindingness of the 3rd Respondent’s Constitution and Guidelines over both the 1st Respondent and the Appellant regarding the conduct of the Anambra State governorship primary election that held on 26/6/2021 … A political party must ensure intra party democracy and abide by the provisions of its Constitution on the emergence of its candidate after primary elections. If a political party was not bound by the provisions of its Constitution concerning party primaries, why should there be the need to send members of the parties aspiring to be candidates for electoral offices on a wild goose chase upon which they dissipate their resources and waste time.” – Per U. M. Abba-Aji, JSC

ELECTION – THE PARTIES THAT CAN CONTEST THE OUTCOME OF A PRIMARY ELECTION

It is only parties or aspirants that participate in the same primary election that can contest same. He is therefore bound by the outcome of the primary election of 4/6/2022. See also Per OGUNWUMIJU, JSC, in ALIERO V. SAIDU & ORS (2023) LPELR-59951(SC) (PP. 17-18 PARAS. C). – Per U. M. Abba-Aji, JSC

INDIRECT PRIMARIES – WHERE A POLITICAL PARTY ADOPTS THE SYSTEM OF INDIRECT PRIMARIES TO NOMINATE ITS CANDIDATE

The position of the law is well settled that where a political party elects to nominate a candidate it would sponsor in a general election, the process of nomination or selection of such candidate must be as prescribed by the Electoral Act and the Guidelines of the party. The political party has no right whatsoever to arbitrarily circumvent the provisions of the Electoral Act and its own Guidelines in the selection and forwarding to INEC of the name of the candidate it intends to sponsor. See Koko v Koko & Ors (2023) LPELR – 59773 (SC), Nwite v PDP & Ors (2022) LPELR – 59192 (SC).

Having said that, Section 84(5)(c)(ii) of the Electoral Act, 2022, provides that where a political party adopts the system of indirect primaries for the purpose of nominating its candidate, “the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.” Following from this provision, after the winner of the primary election must have been declared, the party loses every power to determine whose name to forward to INEC for publication or alter the statutorily laid down procedure. – Per J. I. Okoro, JSC

PRIMARY ELECTION – WHERE TWO MEMBERS OF A POLITICAL PARTY DISPUTE AS TO WHETHER A PRIMARY ELECTION WAS RESCHEDULED AND CONDUCTED ON A PARTICULAR DATE

Where there is a dispute between two members of a party as to whether or not a primary election was rescheduled and conducted on a particular date, it is my view that the evidence of the party itself is weighty enough to resolve the dispute except there is sufficient reason to discountenance the evidence of the party.  – Per I. M. M. Saulawa, JSC

ADMISSION – WHERE A DEFENDANT ADMITS A FACT IN DISPUTE BY ITS PLEADINGS

The law is well settled, that where a defendant admits a fact in dispute by its pleadings, the fact so admitted ought to be taken as established. Thus, there would be no need at all for a further proof thereon. See OCHIEF AKPARAE-IKE & ORS VS. EGBUONU & ORS (1941), WACA 53 @ 55, where it was held:

“But before leaving the matter, we think it desirable to point out that in our view, the learned trial judge was wrong to go in to the question of whether the land now in dispute is the same as that in dispute in the Uruala Native Court in 1933 and to find that identity was not proved.

The identity was one of the agreed facts in the case, it was relied upon by both parties in their pleadings and since one of the objects is to shorten proceedings by ascertaining what facts are agreed as established without proof.

See also OWOSHO VS. DADA (1984) 7SC 149 @ 163-16, ADEYE VS. ADESANYA (2001) 2 SCNJ 79 @ 86-87, OSENI VS. BAJULU (2009) 18 NWLR (pt. 1172) 164 SC; (2009) LPELR-2796(SC) per Ogbuagu, JSC @ 21-22 paragraphs G-B.

It ought to be reiterated, for the avoidance of doubt, that in civil cases (more so in election matters which are sui-generis), admissions by a party are veritable evidence of the facts asserted against, but certainly not in favour of such party. Thus, unless cogent explanations are given which satisfy the Court that the admissions should not be so regarded, due weight ought to be accorded there to. See CAPPA & D’ALBERTO LTD VS. AKINTILO (2003) 9 NWLR (pt. 824) 49; (2003) 4 SC (pt. 11) 1; (2003) LPELR-829 (SC) per Niki Tobi, JSC @ 14 paragraphs E-F, TAGOE VS. MANTSE OF AKUMAJAY (1946) 12 WACA 31, OKAI II v. AYIKAI ll (1946) 12 WACA 31. – Per I. M. M. Saulawa, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. PDP Constitution and Guidelines for Primary Election, 2022
3. Electoral Act, 2022
4. Evidence Act, 201

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