Judgment
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment) : This appeal is against the decision of the Court of Appeal, Abuja Division delivered on 29th December, 2020 in Appeal No. CA/PH/215/2020 wherein the 1st respondent’s appeal was allowed and the judgment of the Rivers State High Court sitting in Port Harcourt delivered by G.O. Oremeji, J. on the 9th June, 2020 in Suit No. PHC/4355/2019 was set aside.
Brief Statement of Facts The National Working Committee of the 1st respondent dissolved the entire executive structure of the party at all levels in Rivers State. It went ahead to set up a Caretaker Committee headed by the 2nd respondent to run the affairs of the party in the State.
Upon the constitution and inauguration of the said Caretaker Committee, the appellant instituted Suit No. PHC/4355/2019 in the High Court of Rivers State via an originating summons dated 12th December, 2019 and filed on 16th December, 2019. In the said originating summons which can be gleaned at pages 1 – 3 of the record of appeal, the appellant sought for the determination of the following questions:
1. “Whether by the provisions of Article 12(1), 1(v), 8(xxx) and 9 of the All Progressives Congress Constitution (the Constitution), the claimant is a member of the 2nd defendant’s foremost organ, to wit: National Convention and as such, a statutory member of the State Executive Committee of the 2nd defendant in Rivers State? 2.
Whether by the provisions of Article 12(1) (v), (8), 8(xxx) and 13(4)(xvi) of the Constitution of the 2nd defendant; the National Working Committee of the 2nd defendant’s decision, appointment and inauguration of a Caretaker Committee in Rivers Stater is not ultra vires the Constitution of the Party. 3. Whether by virtue of Article 13(4), 4 (xvii) of the Constitution of the 2nd defendant, the continuous stay in office of the Party’s Caretaker Committee in Rivers State is not unconstitutional, null and void.”
Upon the favourable determination of the questions, the appellant sought the following reliefs against the respondents: 1. “A Declaration that by virtue of Article 12(1)(v), (8), 8(xxx) and 13(4) of the All Progressives Congress’s Constitution the claimant is a member of the National Convention of the 2nd defendant and as such a statutory member of the State Executive Committee of the 2nd defendant in Rivers State. 2.
A Declaration that the exclusion of the claimant and all other statutory members of the State Executive Committee of the 2nd defendant from the Caretaker Committee set up by the 2nd and 3rd defendants in Rivers State is ultra vires the Constitution of the 2nd defendant and is therefore null and void. 3. A Declaration that the continuous stay in office of the Caretaker Committee is unconstitutional. 4.
An Order of this Honourable Court setting aside the said appointment and/or inauguration of the Caretaker Committee of the 2nd defendant in Rivers State made on or about the 6th day of September, 2019. 5.
An Order directing the 2nd and 3rd defendants within 48 hours of the making thereof to constitute a fresh Caretaker Committee incorporating the claimant as the Chairman and all statutory members of the State Executive Committee as members in furtherance of the Constitution of the 2nd defendant, failure of which statutory members shall comprise the Caretaker Committee chaired by the claimant in furtherance of the All Progressives Congress Constitution. 6. AND of such order and further orders as this Honourable Court may deem fit to make in the circumstances of this application.”
The trial Court in its decision contained at pages 396 – 419 of the printed records, granted all the reliefs sought by the appellant as claimant.
Naturally aggrieved by the decision of the trial Court, the 1st respondent as appellant in the Court below, approached the Court below in Appeal No. CA/PH/215/2020 challenging the decision of the trial Court.
Upon hearing the appeal, the Court below in its considered judgment delivered on 29th December, 2020 allowed the appeal and set aside the decision of the trial Court.
Miffed by the turn of events, the appellant herein in the instant appeal invoked the appellate jurisdiction of this Court via a notice of appeal containing eight grounds of appeal dated and filed on 11th January, 2021.
In line with the Rules and Practice of this Court, parties filed and exchanged their respective briefs of argument. Emeka Etiaba SAN settled both the appellant’s brief of argument and reply brief to the 1st and 2nd respondents’ brief of argument. The appellant’s brief of argument is dated and filed on 13th January, 2021 while the reply brief dated and filed on 24th February, 2021. For the determination of the appeal, the appellant from the eight grounds of appeal contained in the notice of appeal formulated six issues to wit: 1.
“Having regard to the reliefs sought in the suit, facts supporting it and the stance of the law, whether the lower Court was wrong to hold that the suit subject matter of this appeal is not a pre-election matter. (Distilled from grounds 1 and 2). 2. Whether the lower Court was not wrong in holding that the appellant had no vested right, nay, locus standi to sue the respondents (Distilled from ground 3). 3.
Whether Articles 12.1, 12.8, 8(xxx), 13.4(xvi) and (xvii) of the 1st respondent’s Constitution make a case of non-inclusion of the appellant and other statutory members of the State Executive into the State Caretaker Committee (Distilled from ground 4). 4. Whether the non-joinder of the other 27 statutory members of the 1st respondent’s Executive in Rivers State is fatal to the suit (Distilled from ground 5). 5. Whether the 1st respondent’s right to hearing was denied at the trial Court (Distilled from ground 6). 6.
Whether the appellant’s suit was not commenced by due process of law. (Distilled from grounds 7 and 8)”.
Tuduru U. Ede, SAN settled the 1st respondent’s brief of argument dated 22nd February, 2021 and filed on the same date. For the determination of the appeal, the 1st respondent at paragraph 6.1 of the 1st respondent’s brief distilled four issues to wit: 1. “Whether the Justices of the Court of Appeal were right when they dismissed the preliminary objection of the appellant on the ground that appeal No: CA/PH/215/2020 does not arise from a pre-election matter within the meaning of Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered)? (Grounds 1 and 2). 2.
Whether the Justices of the Court of Appeal were right when they unanimously set aside the decision of the trial Court and upheld the preliminary objection of the 1st respondent against the suit at the trial Court? (Grounds 3, 5, 7 and 8). 3. Whether Articles 12.1, 12.8, 8(xxx), 13.4 and (xvii) of the 1st respondent’s constitution makes the inclusion of the appellant and other statutory members of the National Convention of the party compulsory as State Caretaker Committee? (Distilled from ground 4). 4.
Whether the 1st respondent’s right to fair hearing was denied at the trial Court in respect of the preliminary objection against the competence of the suit? (Ground 6”)
The 2nd respondent’s brief of argument is dated 22nd February 2021 and filed on the same date. The said brief was settled M.S. Ibrahim Esq. who at paragraph 3.1 distilled five issues to wit: “1. Whether the lower Court was right in its decision that the suit leading to the appeal before it, is not a pre-election matter, within the meaning and definition of Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. (Distilled from grounds one and two of the notice of appeal). 2.
Whether the lower Court was right in its decision that the appellant did not show that he had any vested right to sue the respondents. (Distilled from grounds three and four of the notice of appeal). 3. Whether the appellant ought to have joined the other twenty seven members of the State Executive Committee to the suit. (Distilled from ground five). 4. Whether the appellant’s suit was commenced by due process of law. (Distilled from grounds seven and eight of the notice of appeal). 5.
Whether the right to fair hearing of the appellant was denied at the trial High Court. (Distilled from ground 6 of the notice of appeal).”
The 3rd respondent however did not file any brief of argument. The appeal was heard on 24th February, 2021 wherein counsel to the parties adopted their respective briefs and made oral adumbrations in support of their diverse postures in the appeal.
Before going into the submissions and arguments on the issues distilled in their respective briefs, it is imperative at this stage to state that the 1st and 2nd respondents’ counsel filed notices of preliminary objection challenging the competence of the appellant’s appeal amongst other grounds.
The 1st respondent’s notice of preliminary objection is dated 22nd February, 2021 and filed on the same date. The objection was brought pursuant to Order 2 Rule 9 of the Supreme Court Rules and the grounds upon which the 1st respondent’s objection was predicated are: i. “The appellant at paragraph 2.12 of his brief of argument seeks to rely on the notice of appeal filed on the 11/1/2021. ii.
The said notice of appeal is not copied in the printed record of appeal as same was only filed at the registry of this apex Court contrary to the combined effect on the provisions of Order 2 Rule 30 and Order 8 Rule 2(1) of this Court. iii. The notice of appeal filed on the 11/1/2021 failed to state whether the whole or only part of the decision of the Court below is complained of.
iv. Merely stating part of the judgment as was done by the appellant in this case, does not satisfy the mandatory provisions of Order 8 Rules 2(1) of the Supreme Court Rules. v. The reliefs as contained in the notice of appeal filed on the 11/1/2021 are not exact in nature as they are not sought in the Supreme Court. vi. The Court is not a Father Christmas as to award an appellant a relief not sought under the guise of ‘any order or further order the Honourable Court may deem fit to make in the circumstances.’<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> vii.
The appellant’s brief of argument in the instant appeal has altered the parties as obtained in the Court of trial in terms of their capacity. A new party was thus introduced. viii. The appellant’s brief of argument filed on the 13/1/2021, the capacity in which the 2nd respondent was sued has been altered by the appellant without leave of this Honourable Court and now reads “(Former Chairman, Caretaker Committee of All Progressives Congress, Rivers State)”. ix.
The notice of appeal filed in this appeal on the 11/1/2021 as well as the appellant’s brief of argument filed on 13/1/2021 are altogether incompetent. x. Grounds 3, 5 and 8 of the notice of appeal filed on 11/01/2021 are grounds of mixed law and fact for which the leave of the Court below or this apex Court is required. xi. Grounds three (3), four and five of the notice of appeal filed on 11/01/2021 are incompetent as they do not challenge any ratio decidendi of the judgment of the Court below on appeal. xii.
Grounds three (3), four and five of the appellant’s notice of appeal together with the issues 2, 3 and 5 distilled therefrom ought to be struck out for incompetence. xiii. This Court lacks jurisdiction to hear and determine grounds 3, 4, 5 and 8 of the notice of appeal. xiv. The appellant never sought the requisite leave of Court. xv. The grounds are altogether incompetent and liable to be struck out. xvi. Arguments in respect to issues 2 & 3 formulated from the offending grounds of appeal which the appellant argued together with grounds 4 are also incompetent and ought to be struck out. xvii.
All the argument in respect to issue 6 jointly formulated from grounds 7 and 8 ought to be struck out for incompetent. xviii. The instant appeal has become academic and without any utilitarian value in that crucial and specific findings made by the Court below in the judgment was not appealed against Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) SC 87, 144, paras. B – (Pt. 1519) SC 87 D, 147, G – H; 158 paras. C – B. xix. The 1st respondent therefore prays this honourable Court to strike out the Supreme Court Appeal No: SC/CV/17/2021 for incompetence.”
The 2nd respondent on the other hand also filed a notice of preliminary objection dated and filed 22nd February, 2021. The objection was brought pursuant to Order 2 Rule 9(1) of the Supreme Court Rules 1999 (as amended), Section 6(6) of the CFRN (as amended) and under the inherent jurisdiction of this Court. The major grounds upon which the objection was anchored are: 1. “The notice and grounds of appeal is incompetent as the appellant failed to specify the part of the judgment he is complaining of. 2.
The instant appeal has become academic; the appellant having failed to appeal material decisions made by the lower Court, whose judgment it purports to appeal against. 3. Grounds one and two of the notice and grounds of appeal and issue one formulated therefrom, is incompetent and ought to be struck out, as the appellant has not sought any relief in the notice and grounds of appeal that will sustain the aforementioned issues for determination. 4.
Grounds three (3), four (4), five and six of the notice of appeal is incompetent, as it did not arise from the judgment being appealed against, similarly, issues two (2), three (3), four and five formulated from grounds three (3), four (4), five and six respectively are incompetent and liable to struck out.”
Having perused the grounds upon which the objections are predicated, I am of the view that the objections of the 1st and 2nd respondents’ counsel are almost the same in substance and form. Before going into the arguments and submissions of counsel for and against the preliminary objection, it is imperative to point out that the 1st and 2nd respondents failed to comply with the Rules of this Court when raising a preliminary objection.
Order 2 Rule 9(1) of the Rules of this Court provides as follows: “A respondent intending to rely on a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time.” The 1st respondent’s notice of preliminary objection is dated 22nd February, 2021 and filed on the same date.
Likewise, the 2nd respondent on the other hand also filed a notice of preliminary objection dated and filed 22nd February, 2021. The appellant was served with the notices of both counsel for the 1st and 2nd respondents on 22nd February, 2021, the same date the notices and the 1st and 2nd respondent’s briefs were filed at the Registry of this Court. It is also evident on record that the appellant’s brief of argument had already been filed and served on 13th January, 2021.
As rightly noted by the appellant’s counsel in his reply brief that despite having been served with the appellant’s brief of argument, the 1st and 2nd respondents’ counsel chose to wait till 22nd February, 2021 before filing their notices of preliminary objection and arguments in support thereof incorporated in their briefs of argument.
By simple computation of time, this is more than thirty five days after the service of the appellant’s brief of argument on them and less than two days before the hearing of this appeal on 24th February, 2021. As stated earlier in this preceding part of this judgment, the 1st respondent predicated his objection on nineteen grounds. The 2nd respondent in similar vein, also predicated his objection on virtually all the grounds relied upon by the 1st respondent.
The essence of the direction given in Order 2 Rule 9(1) of the Rules of this Court is to ensure an equal playing ground between the parties. This is to prevent a respondent who intends to rely upon a preliminary objection to the hearing of an appeal from taking the appellant by surprise. The three clear days stated therein in the rules of this Court is to afford the appellant reasonable time to prepare his arguments in opposition to the objection filed challenging the competence of his appeal.
On the day the appeal was heard, learned counsel for the 2nd respondent admitted during the process of adumbration that his notice of preliminary objection fell short of two clear days contrary to Order 2 Rule 9 of the Rules of this Court.
I would have been inclined to consider the objection on the merit in the light of Order 2 Rule 9 which gives the Court, a discretion to either entertain or refuse to entertain the objection in the event of the respondent’s failure to comply with Order 2 Rule 9 (1), however, with the rather cumbersome way and manner in which the objections were argued, I am of the opinion that it would amount to an undue advantage on the part of respondents to say that the appellant should take just a day in replying to the comprehensive objections when he is entitled to three days.
Without dissipating much judicial energy on the objection, I refuse to exercise my discretion in favour of the 1st and 2nd respondents. On this note, the objections are hereby struck out by reason of their failure to comply with Order 2 Rule 9 of the Rules of this Court. See Uwazurike & Ors. v. A.-G., Federation (2007) LPELR – 3448 (SC), (2007) 8 NWLR (Pt.1035) 1.
Having struck out the preliminary objections of both the 1st and 2nd respondents, I shall consider the appeal on the merit.
Arguments and Submissions of counsel on the Appeal. On whether the Court below was right to have held that the suit culminating into the instant appeal is not a pre-election matter, learned senior counsel for the appellant at paragraph 4.02 of the appellant’s brief of argument reproduced the reliefs sought by the appellant in his originating summons and submitted that the action is a pre-election matter.
He submitted further that the Court below took a narrow interpretation of Section 285(14) of the CFRN 1999 (as amended) and refused to follow the interpretation of this Court in the case of APC v. Umar & 2 Ors. (2019) LPELR-47296 (SC), (2019) 8 NWLR (Pt. 1675) 564.
That if the Court below had rightly interpreted Section 285(14) of the Constitution (supra), it would have come to a conclusion that the appeal before it was statute barred having been filed outside 14 days from the date of the judgment of the trial Court and judgment of Court below delivered 60 days from the date of filing the appeal.
In response to the submissions of the appellant above, counsel for the 1st respondent submitted that Section 285(14) of the Constitution does not only restrict the nature of the complaint i.e. the subject matter of the action, but also prescribes who could institute the suit under the subject and validly evoke the adjudicatory jurisdiction of the Court in a pre-election matter. Learned senior counsel for the 1st respondent submitted that to qualify as a pre-election matter under Section 285 – of the CFRN (1999) (as amended), the following essential elements must be present to wit: a.
The party suing must be an aspirant who contested or participated in a political party primaries for the nomination and selection of a candidate of an election. b. The complaint must relate to the breach of Electoral Act, 2010 (as amended) or any Act of the National Assembly regulating the conduct of primaries of political party. c. There must be allegations of breach of the provisions of the guidelines of a political party for the conduct of party primaries in respect of the selection or nomination of candidates for an election; and d.
Action by a political party challenging the actions, decision or activities of the Independent National Electoral Commission with respect to its candidates for an election.
It was the submission of learned senior counsel for the 1st respondent that the Court below was right in holding that the suit, subject of the appeal is not a pre-election matter and as such the provisions of Section 285(11), (12), (a – c) of the CFRN 1999 (as amended) are inapplicable in the instant appeal. He referred this Court to the case of APC & Anor v. Engr. Suleiman Aliyu Lere & Anor. (2020) 1 NWLR (Pt. 1705) 254 @ 279 A-C.
The submissions of the 2nd respondent’s counsel substantially accords with that of the learned senior counsel for the 1st respondent. However, counsel for the 2nd respondent submitted that the case of the appellant borders on the complaint of membership of a caretaker committee of a political party, and who should be its chairman. That it cannot be said that the suit is a pre-election matter as same is clearly an intra-party affair to which the Courts are not seised of. He cited the case of Ufomba v. INEC & ORS. (2017) 13 NWLR (Pt. 1582) 175 at 208.
On issue Nos 2 & 3 distilled and argued together by senior counsel for the appellant, counsel submitted that the appellant has the locus to institute the action because his right to be a member of the State Executive Committee is constitutionally vested on him by the party and all the appellant sought in the suit was a re-echoing of the right to forestall a breach as the circumstances of the suit disclosed. That the appellant was right to have instituted the action to protest and lawfully resist the sack of the statutory members of the State Executive Committee.
Counsel reproduced elaborately at paragraph 5.14 of the appellant’s brief the excerpts of the appellant’s deposition in the affidavit in support of the originating summons and submitted that the depositions contained therein clearly show that the appellant has a reasonable cause of action which is enforceable against the respondents.
On whether going by the provision of Article 13.4 and (xvii) of the 1st respondent’s Constitution, the appellant who is a statutory member of the State Executive Committee, ought to be included or excluded from the Caretaker Committee, counsel for the appellant submitted that Article 13.4 and (xvii) did not discuss the inclusion or exclusion of the Statutory members of the State Executive Committee from the Caretaker Committee. He further submitted that the Court below therefore read into the provisions, words not contained which is against the canons of statutory interpretation.
He cited the cases of W.T. Ejuetami v. Mrs. Benedicta Olaiya & Anor. (2001) LPELR – 1072 (SC); (2001) 18 NWLR (Pt.746) 542; Skye Bank Plc v. Victor Anaemem (2017) LPELR – 42595 (SC), (2017) 6 NWLR (Pt.1590) 24.
It was the contention of the appellant’s counsel that the National Working Committee of the 1st respondent has no power to exclude the statutory members of the State Executive Committee from the running of the affairs of the Rivers State Chapter under any guise.
In his final analysis on these issues, counsel urged the Court to hold that the decision of the National Working Committee is ultra vires, the relevant provision of the Constitution on the vested rights of the appellant and other statutory members of the State Executive Committee.
On whether the appellant had the requisite locus to institute the action against the 1st respondent, learned senior counsel for the 1st respondent submitted that the law is long settled that locus standi will only be accorded to a party who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected. He cited the case of INEC v. Ogbadibo Local Government & Ors. (2015) LPELR – 24839 (SC), (2016) 3 NWLR (Pt.1498) 167.
It was the submission of the learned senior counsel for the 1st respondent that upon a careful reading of the affidavit of facts in support of the originating summons and the exhibits attached thereto, it is obvious that the appellant failed to disclose any vested right granted to him by the Constitution of the 1st respondent which was allegedly infringed or violated. He submitted further that the Constitution of the 1st respondent did not mandate the 1st respondent’s member or officials to carry out any act in favour of the appellant which was not complied with.
On whether the appellant who is a statutory member of the State Executive Committee, ought to be included or excluded from the Caretaker Committee, it was the contention of the learned senior counsel for the 1st respondent that the provisions of Article 13.4 and (xvii) of the Constitution of the 1st respondent which empowers the National Working Committee to set up a Caretaker Committee does not refer to the appellant in any manner whatsoever.
He submitted further that the setting up of a Caretaker Committee to fill up a lacuna in any organ of the 1st respondent is an exclusive power of the National Working Committee of the 1st respondent. That it was in the exercise of its powers that the National Working Committee set up a Caretaker Committee and appointed the 2nd respondent as its bona fide chairman for its River State Chapter.
The learned Silk submitted that the complaints of the appellant squarely borders on the issue of the leadership of the 1st respondent’s, which this Court has consistently held not to be the business of the law Court to entertain since it borders on intra party affairs. He also cited the case of Ufomba v. INEC & Ors. (supra).
The submissions and arguments of the 2nd respondent’s counsel under this issue is the same in substance as that of the learned senior counsel for the 1st respondent elaborately reproduced above.
On whether the non-joinder of the other 27 statutory members of the 1st respondent’s Executive is fatal to the appellant’s suit, learned senior counsel submitted that the questions and the reliefs in the suit are not ones that the trial Court could not have dealt with in the absence of the 27 statutory members of the Rivers State Chapter of the 1st respondent. He submitted further that the questions in the originating summons had nothing to do with the other 27 statutory members.
The learned silk submitted that the Court below did not consider the fact that the suit is an action in rem before coming to the conclusion that the suit was improperly instituted. He further submitted that the 27 statutory members who the Court below believed ought to have been joined are not necessary parties in the suit but at best could be deemed interested parties and the jurisdiction of the trial Court was not ousted by their non-joinder.
In response to the above submissions, learned Senior counsel for the 1st respondent submitted that in the light of the depositions of the appellant as contained in the affidavit in support of the originating summons as well as the reliefs sought on their behalf, the 27 other Statutory Members whom the appellant claimed ought to have been automatically made members of the Caretaker Committee set up by the National Working Committee of the 1st respondent are necessary and indispensable parties who ought to have been made co-claimants.
He further submitted that the reason for this is because the appellant sought reliefs which would affect them even where the appellant instituted the suit without their consent and authority and did not sue in a representative capacity as representing the 27 other statutory members. That the 27 statutory members ought to have been joined to the suit as necessary parties. He cited the case of Panalpina World Transport Ltd. v. J.B. Olandeen International & Ors. (2010) LPELR – 2902 (SC), (2010) 19 NWLR (Pt.1226) 1.
The learned Senior counsel for the 1st respondent argued that the law is settled that no judgment or order of a Court can bind a person who is not a party to the suit in which such judgment or order was made. He relied on the case of Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597.
Also, the submissions and arguments of the 2nd respondent’s counsel under this issue is the same in substance as that of the learned senior counsel for the 1st respondent elaborately reproduced above.
On issue No.5, counsel for the appellant submitted that the Court below was wrong on holding that the trial Court violated the respondent’s right to fair hearing. He further submitted that assuming but without conceding that the trial Court was wrong in its treatment of the issue of jurisdiction raised by the respondents, that will not amount to denying them fair hearing as they were adequately heard and an appealable decision delivered.
He further submitted that the trial Court considered and resolved all the jurisdictional issues raised albeit not as the respondents wanted it but that cannot amount to violation of their right to fair hearing.
On the concept of fair hearing, counsel referred the Court to the case of Joseph Agbahomovo & Anor v. Apata Eduyegbe & Ors. (1999) LPELR – 224 (SC), (1999) 3 NWLR (Pt.594) 170. The appellant’s counsel submitted further that the complaint of the 1st respondent at best is to the style the trial Judge adopted in treating the preliminary objection.
On the issue of denial of fair hearing as held by the Court below, learned senior counsel for the 1st respondent and counsel for the 2nd respondent in their similar submissions contended that the trial Court failed to consider and determine all the jurisdictional issues in the preliminary objection raised at trial challenging the competence of the appellant’s suit. And that by not so doing, the Court below was on a strong footing in holding that the 1st respondent’s right to fair hearing was denied at trial.
On whether the suit was initiated through due process of law, counsel for the appellant submitted that the Rivers State High Court (Civil Procedure) Rules did not provide for the filing of a verifying affidavit alongside an originating summons. That going by the decision of the Court below on the lack of affidavit of verification accompanying the originating summons, the Court below placed a higher and non-existing burden on the appellant.
On the failure of the appellant to exhaust all the internal administrative remedies before instituting the action, the appellant’s counsel submitted that having regard to the nature of the breach of the Constitution of the 1st respondent by the National Working Committee of the party and its disposition towards the appellant, the appellant was right in commencing the suit after his botched attempt to have the dispute resolved within the party. He referred the Court to the case of PDP v. Senator Ali Modu Sheriff & Ors. (2017) LPELR-42736, (2017) 15 NWLR (Pt.1588) 219.
In the final analysis, counsel urged the Court to allow the appeal and set aside the decision of the Court below.
By way of reply to the submission and arguments of the appellant on whether the appellant’s suit was commenced through due process of law, learned senior counsel for the 1st respondent submitted that commencement of an action by due process of law is one of the pedestals upon which a Court of law can assume jurisdiction as held in the case of Madukolu & Ors. v. Nkemdilim (1962) LPELR – 24023 (SC), (1962) 2 SCNLR 341.
Counsel submitted that the extant High Court (Civil Procedure) Rules of Rivers State under which the suit culminating into the instant appeal was filed mandates a claimant who intends to commence a suit vide originating summons to file along with it an affidavit of verification. On the effect of failure of a party who commences a suit vide originating summons to file an affidavit of verification, learned senior counsel for the 1st respondent referred the Court to the case of NCC v. Motophone Ltd. (2019) 14 NWLR (Pt. 1691) 1 at 30 A-B.
He submitted that from all the documents filed by the appellant in support of his originating summons, no affidavit of verification was filed, therefore the appellant fell short of the requirement in commencement of the suit culminating into the instant appeal.
Still on whether the suit was commenced through due process of law, counsel for the 1st respondent submitted that the appellant failed to exhaust all the internal mechanisms and procedures laid down in Article 12 (B) of the Constitution of the 1st respondent for resolution of disputes or any complaints an aggrieved member may have against the party or its officials. That the appellant by his failure to comply with the said provision of the 1st respondent’s constitution on the internal dispute resolution mechanisms failed to activate the jurisdiction of the Court.
On the failure to comply with conditions precedent for institution of an action, counsel referred the Court to the case of Drexel Energy & Natural Resources Ltd. & Ors. v. Trans International Bank Ltd. & Ors. (2008) LPELR – 962 (SC), (2008) 18 NWLR (Pt.1119) 388.
In similar vein, counsel for the 2nd respondent submitted that the appellant failed to comply with Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules and Article 21 (B) of the Constitution of the 1st respondent before instituting the action and by reason of such noncompliance, the trial Court had no jurisdiction to entertain the action. He cited the cases of Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 348 at 419 para. H; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 154 E – G.
On the whole, both counsel for the 1st respondent and 2nd respondent urged the Court to dismiss the appeal for lacking in merit.
Reply Brief In his reply brief, learned counsel for the appellant re-echoed his submission to the effect that the Rivers State High Court (Civil Procedure) Rules does not provide for such filing of a verifying affidavit. He further submitted that the case of NCC v. Motophone Ltd. (2019) 14 NWLR (Pt. 1691) 1 @ 30 A – B cited by the 1st and 2nd respondents does not emanate from the River State High Court but from the Federal High Court which has the practice of filing a verifying affidavit alongside an originating summons.
Resolution Having carefully examined the grounds of appeal, the briefs filed by counsel and the issues distilled therein, I am of the view that the issues below are apt for the determination of the appeal: 1. Having regard to the reliefs sought in the suit, facts supporting it and the stance of the law, whether the lower Court was wrong to hold that the suit subject matter of this appeal is not a pre-election matter. (Distilled from grounds 1 and 2). 2. Whether the appellant’s suit was not commenced by due process of law. (Distilled from grounds 7 and 8). 3.
Whether the lower Court was right in its decision that the appellant did not show that he had any vested right to sue the respondents. (Distilled from grounds three and four of the notice of appeal).
A careful perusal of issues 1 to 3 distilled by this Court for the determination of the instant appeal would reveal that the said issues are jurisdictional in nature. In the course of the determining the appeal, I shall be considering the issues together.
Issue no.1 is challenging the jurisdiction of the Court of Appeal to hear and determine the appeal on the ground that the suit, being a pre-election matter, the appeal was not filed and determined within the time stipulated therein in Section 285 of the Constitution (supra).
The term “statute barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat it as such. See the case of Araka v.
Ejeagwu (2000) 12 S.C. (Pt. 1) 99, (2000) 15 NWLR (Pt. 692) 684. The purpose of this is to bring an end to litigation so that persons with good causes can pursue them on time before human memory starts to fade or witnesses become untraceable. See the cases of INEC v. Ogbadibo & Ors. (2015) LPELR-24839 (SC), (2016) 3 NWLR (Pt,1498) 167; Ajayi v. Adebiyi & Ors. (2012) LPELR-7811 (SC), (2012) 11 NWLR (Pt.1310) 137.
It is trite law that in order to determine whether a case is statute barred, it is the claimants originating processes, usually the writ of summons and the statement of claim that is considered. In the instant appeal, the action before the trial Court was commenced by originating summons. Therefore, in order to determine whether the Court below had jurisdiction to hear and determine the appeal, the processes to consider are only the originating summons and affidavit in support of originating summons vis-a-vis the relevant limitation law. See the cases of Egbe v.
Adefarasin (1987) LPELR – 1032 (SC), (1987) 1 NWLR (Pt.47) 1; Williams v. Williams (2008) LPELR – 3493 (SC), (2008) 10 NWLR (Pt. 1095); Aremo II v. Adekanye & Ors (2004) LPELR – 344 (SC), (2004) 13 NWLR (Pt.891) 572.
As gleaned from the affidavit evidence in support of the appellant’s originating summons at pages 4 – 7 of the record of appeal, the appellant averred as follows: “2. I am the claimant herein and a bona fide card carrying member of the 2nd defendant since 2014 and I have served in various offices in furtherance of the aims and objectives of the 2nd defendant … 3. I was elected into the House of Representatives in the year 2003 and served there until 2007. I was re-elected into the House of Representatives in 2007 and served there until 2011… 4.
As a member of the House of Representatives, I was chairman of Gas Committee and member of Sport and Finance Committee. 5. … 6. … 7. … 8. Articles 12(1)(v), 8 and 9 of the All Progressives Congress Constitution (the Constitution), exhibited and marked exhibit C, provides that serving and past members of the National Assembly who are members of the 2nd defendant are members of the National Convention and are statutory members of the State Executive Committee as well as the State Caucus. 9.
By virtue of Articles 12(1) (v), 8 and 9 of the Constitution, I am currently a statutory member of the Rivers State All Progressives Congress State Executive Committee having been a former member of the House of Representatives (National Assembly). 10. By the provision of the Constitution, my membership of the State Executive Committee is not tenured. 11. Sometimes in 2018, the All Progressives Congress, Rives State held its congresses and elected its executives members in the State. 12.
Following the said election, some members of the party who were aggrieved successfully approached the Court for the nullification of the said congress and the election resulting therefrom. 13. The National Working Committee of the 2nd defendant relying on its powers as provided under Article 13(4) of the All Progressives Congress’s Constitution, appointed a five member Caretaker Committee namely:- Mr. Isaac Abott Ogbobula, Mr. Friday Kinika Owhor, Mrs. Beatrice Amobi, Prince Abolo Stephen and Mr.
Baridon Badom to pilot the affairs of the party (Rivers State Chapter) thereby suspending all other Executive members both elected and statutory. 14. I know that my position as a statutory member of the Rivers State Executive Committee is constitutionally guaranteed and cannot be suspended by the National Working Committee in the manner they did. 15.
I also know that the National Working Committee of the party has, amongst other functions, the power to set up a Caretaker Committee in the event of a lacuna in the State Executive Committee of the Party but such power is to be exercised in furtherance to the Constitution. 16. I am aware that there are over twenty four other members of the defendant in the Rivers State Chapter who are members of the State Executive Committee and whose membership of the State Executive Committee are also statutory and are not affected by term limits. Some of them are:… 17.
I know that my membership of the State Executive Committee of the 2nd defendant in Rivers State has a statutory flavour and is not affected by tenure limits and any Caretaker Committee constituted to the exclusion of all statutory members is ultra vires the Constitution. 18. That National Working Committee of the 2nd defendant erroneously appointed a Caretaker Committee to replace the State Executive Committee of the party in Rivers State without regard to those of us who are statutory members. 19.
On the 3rd day of December, 2019, I wrote an open letter to the National Chairman of our party and conveyed my reservations on the subject matter and further made demand which have not been acceded to, hence the commencement of this suit. The said open letter was published in This Day Newspaper of 03/12/2019 and annexed as exhibit D. 20. I sincerely believe that the National Working Committee of the 2nd defendant acted in clear breach of the All Progressives Congress Constitution. 21.
I also believe that the exclusion of my name and those other statutory members of the State Executive Committee of the Party in Rivers State has challenged our membership of the State Executive Committee and the Constitution, hence, a need for the determination of the questions contained in this suit. 22. I know that the tenure of the State Caretaker Comiittee of Rivers State was to have ended with the conduct of congresses… 23. I also know as a fact that the 1st defendant and members of the Caretaker Committee have continued to function in their office.
The 1st defendant within the month of November, 2019 attended the National Working Committee meeting of the party in his capacity as the Chairman of the Party’s Caretaker Committee in Rivers State. 24. The appointment and inauguration of the Caretaker Committee by the National Working Committee was not done in furtherance of the Constitution of the party as provided by the party Constitution.”
Flowing from the appellant’s affidavit evidence in support of his originating summons, it is beyond peradventure that the appellant is challenging the action of the National Working Committee of the 1st respondent appointing a Caretaker Committee to replace the State Executive Committee of the party in Rivers State without regard to the statutory members, which the appellant belongs.
In essence, the appellant is challenging the appointment and inauguration of the Caretaker Committee by the National Working Committee on the ground that same was not done in furtherance of the Constitution of the party as provided by the party’s Constitution.
Having ascertained the appellant’s cause of action, the question that readily comes to mind is whether the cause of action falls within the purview of Section 285(14) (a – c) of the Constitution (supra). For proper consideration of the question of whether the suit culminating into the instant appeal is a pre-election matter, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (a – c) of the Constitution (supra).
Section 285 (a – c) of the Constitution (supra) provides as follows: “For the purpose of this section, “pre-election matter” means any suit by – (a) aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election;
and (c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
The first issue distilled by the appellant in the instant appeal is centered on whether the Court below acted correctly in its interpretation of Section 285 (a – c) of the Constitution (supra).
There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes. The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments. On the cardinal principle governing the interpretation of constitutional provisions, this Court, per Oguntade JSC, in the case of Rashidi Adewolu Ladoja v.
INEC (2007) LPELR-1738(SC), (2007) 12 NWLR (Pt. 1047) 115 held that: “In interpreting a provision of the Constitution, the primary function of the Court is to search for the intention of the lawmaker.
Where a constitutional provision is clear and unambiguous, the Court must give the words their ordinary meaning unless it will lead to absurdity and inconsistency with the provisions of the Constitution as a whole. The true meaning of the words used and the intention of the legislature in a Constitution can be best properly understood if the Constitution is considered as a whole. It is a single document and every part of it must be considered as far as relevant in order to get the true meaning and intent of any particular portion of the enactment.
Also a Constitution must be interpreted and applied liberally. It must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide. By necessity a constitutional provision must be interpreted broadly…” See also Hon. Micheal Dapianlong & Ors. v. Chief (Dr.) Joshua Chibi Dariye & Anor (2007) LPELR – 928(SC), (2007) 8 NWLR (Pt. 1036) 332; Bola Tinubu v. I.M.B. Securities Plc (2001) LPELR – 3248 (SC), (2001) 16 NWLR (Pt.740) 670.
I should bear in mind that where the words of the legislature are clear, there is no room for applying any of the principles of interpretation. It is very clear that where the words used in expressing the intention of the legislature in the above provision are plain and unambiguous, in interpreting the Constitution, the Court must endeavor to give the words used in the Constitution or statute its ordinary meaning unless such interpretation will lead to absurdity or inconsistency with the rest of the legislation.
After having carefully examined the provisions of Section 285 (14) (a – c) of the Constitution (supra), the following points are crystal clear as held by the Court below at pages 823 – 824 of the record of appeal: 1.
The appellant is not claiming any reliefs touching or pertaining to being an aspirant complaining that the provisions of Electoral Act or Any Act regulating the conduct of primaries of the appellant and the provisions of appellant’s Guidelines for conduct of the appellant primaries have not been complied with by the appellant in respect of the selection or nomination of candidates for an election. 2. The appellant is not claiming to be contesting any election but trying to vindicate his right (if any) as a member of National Convention of the Party.
I am also of the view, as rightly held by the Court below that the appointment of caretaker committee to run the affairs of a 1st respondent is not by election and is not based on contest or aspiration of an aspirant as envisaged under Section 156 of the Electoral Act 2010 as amended. The scenario created by the reliefs sought in this suit cannot by any stretch of imagination be covered by the meaning assigned to pre-election matter in Section 285(14) (a – c) of the CFRN 1999 as amended.
A judicial definition of the phrase “pre-election matter” was also recently given by this Court in the case of APC & Anor v. Engr. Suleiman Aliyu Lere & Anor. (2020) 1 NWLR (Pt. 1705) 254. In the said case, this Court, per Rhodes-Vivour, JSC held as follows: “Pre-election matters are as the name implies matters that occurred before the election Proper. They are live issues that must be heard and a judgment delivered. Litigation arising from party primaries e.g. substitution of candidates.
Complaints about the conduct of primaries are pre-election matters… The words used in the statute supra are clear and unambiguous. They should be given their plain ordinary meaning which is not in doubt. It says exactly what it says.” See also APC v. Uduji & Anor. (2020) 2 NWLR (Pt. 1709) 541.
From the hills of the forgoing, I come to the inevitable conclusion that this suit cannot under any guise be said to be a pre-election matter.
I find the submissions of the appellant’s counsel in this regard preposterous because as rightly submitted by learned senior counsel for the 1st respondent at paragraph 6.7 of the 1st respondent’s brief, the appellant who instituted his suit at the trial Court on 16/12/2019, more than one hundred days after 6th September, 2019 when the act, event or action complained of took place, is aware that the suit is not a pre-election matter within the interpretation of Section 285(14) of the Constitution (supra).
Consequently, the action/suit cannot by any stretch of imagination be said to be a pre-election matter.
After having determined the jurisdictional competence of the Court below to hear and determine the appeal that is under the current appellate scrutiny, I shall proceed to consider whether the appellant’s suit was initiated by due process of law and whether the Court below was right when it held that the appellant had no vested right to institute the action against the respondents.
On the conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter, this Court, Per Bairamian, JSC (of blessed memory) in the case of Madukolu & Ors. v. Nkemdilim (supra) held as follows: “Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court.
Put briefly, a Court is competent when it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 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 the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” (Italics mine for emphasis).
It was the contention of the appellant’s counsel that the Court below erred to have held that the appellant’s suit was incompetent by reason of the failure of the appellant to file a verifying affidavit alongside his originating summons. Counsel for the 2nd respondent, expectedly, supported the decision of the Court below in this regard and went further to furnish this Court at paragraph 4.41 of the 2nd respondent’s brief of argument, the particular Order of the Rules of the trial Court which mandated the appellant to file an affidavit of verification alongside his originating summons.
Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules, 2010 provides for commencement of an action vide originating summons. Order 3 Rule 8 provides as follows: “(1) An originating summons shall be in the Forms 3, 4, or 5 to these Rules, with such variations as circumstances may require.
It shall be prepared by the applicant or his Legal Practitioner, and shall be signed, stamped and filed in the Registry, and when so signed, stamped and filed shall be deemed to be issued. (2) An originating summons shall be accompanied by; (a) an affidavit setting out the facts relied upon; (b) all the exhibits to be relied upon; (c) a written address in support of the application.
The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the respondent or respondents.” (Italics mine for emphasis) From the aforementioned provisions of the Rules of the Rivers State High Court (Civil Procedure) Rules 2010, I rather find it strange how the Court below came to the conclusion that the appellant was required to file an affidavit of verification alongside his originating summons.
The Court below at page 856 of the record of appeal held as follows: “On whether the action of the 1st respondent was initiated by due process of law or whether the condition precedents were followed before the institution of the action. Firstly, it is true that the 1st respondent’s suit was not accompanied with affidavit of verification.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The position of the law is that rules of Court must prima facie be obeyed and if there is non-compliance with the rules, the noncompliance must be explained and if not explained, then there will be no basis upon which the indulgence of the Court can be granted or predicated. However, it would be wrong for the Court and parties to import into or expand the Rules of Court to include requirements or procedure not contained in the Rules except where such Rules of Court are amended or replaced by due process of law.
Even where the appellant did not file an affidavit of verification as rightly noted by the Court below, the appellant had no duty to do so by virtue of Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules 2010 contrary to the contentions of learned senior counsel for the 1st respondent and counsel for the 2nd respondent. On this note, I hold that going by the aforementioned provision of the Rules of the trial Court, the appellant was not required or mandated to file a verifying affidavit alongside his originating summons.
The only affidavit required of him was an affidavit setting out the facts relied upon. This condition was fulfilled by the appellant and as evident from the records, the affidavit which can be gleaned at pages 4 – 7 of the record of appeal.
Next is to decide whether the appellant’s suit was competent upon fulfillment of the condition precedent to the exercise of jurisdiction. The Court below held that the failure of the appellant to exhaust all the internal administrative remedies provided for under Article 21 (B) of the 1st respondent’s Constitution before filing the action at the Registry of the trial Court is fatal to the jurisdiction of the trial Court to entertain the suit.
The law is trite that where a Statute or Rules of Court prescribe a condition precedent to the assumption of jurisdiction, that condition precedent must be fulfilled before there is jurisdiction. A case must therefore come before the Court only when initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Shugaba v. U.B.N. Plc (1999) LPELR – 3068 (SC), (1999) 11 NWLR (Pt.627) 459; Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) LPELR-962 (SC), (2008) 18 NWLR (Pt.1119) 388.
The appellant at paragraph 2 of the affidavit in support of his originating summons deposed to the fact that he is a bona fide card carrying member of the 1st respondent since 2014 and has served in various offices in furtherance of the aims and objectives of the 1st respondent. The implication of this is that he is bound by the Constitution of the 1st respondent being a statutory member of the 1st respondent.
The law is trite that a political party is bound by its Constitution and any action taken which is not in conformity with the Constitution of such political party is null and void and of no effect. See the case of Emenike v. P.D.P. (2012) 12 NWLR (Pt. 1315) page 556 at 592 paras. C-D where this Court, per Fabiyi, JSC lent his voice to this law when he opined that: “The member of a political party is bound by the party’s Constitution and guidelines. He cannot circumvent any of them to his own benefit.” Members of a political party are bound by the provisions of its Constitution.
In the instant case, the Constitution of the 1st respondent is exhibit C annexed to the appellant’s affidavit in support of the originating summons. In exhibit C, there is a laid down procedure in Article – 21 (B) for the hearing and determination of complaints and allegations.
Article 21 (B) of the 1st respondent Constitution which is also binding on the appellant as a card carrying and statutory member as admitted in his affidavit states as follows: “21(B) Disciplinary Procedure The procedure for the hearing and determination of complaints or allegations are as follows:- (i) A complaint by any member of the party against a Public Office holder, elected or appointed, or another member or against a Party organ or officer of the Party shall be submitted to the Executive Committee of that Party at all levels concerned and shall NOT LATER THAN 7 days of the receipt of the complaint, appoint a fact finding or Disciplinary Committee to examine the matter. (ii) The Executive Committee concerned shall not debate or discuss the complaint or allegation before sending it to the Disciplinary Committee or fact-finding Committee which shall hear, determine and cause its decision to be transmitted to the relevant Executive Committees of the party concerned. (iii) The Executive Committee concerned upon receipt of the report of the fact finding or Disciplinary Committee shall not later than 14 days thereof either ratify or reject the decision of the fact-finding or Disciplinary Committee. (iv) The Executive Committee of the Party at all level where a complaint or allegation is made shall have original jurisdiction to hear and determine such complaint or allegation provided that the assumption of jurisdiction by such Executive Committee shall not breach the rules of fair hearing. (v) Where either the complainant or the party against whom a complaint is made, makes out a prima facie case of bias, intimidation or undue influence or likelihood of same by the Executive Committee seized with original jurisdiction to hear and determine such a matter or a member thereof or where the complaint is against a party organ.
At the level, making it impracticable to appoint a fact finding or Disciplinary Committee, such complaint shall be transferred to the appropriate organ seized with appellate jurisdiction to hear and determine such matter save in the case of allegation against the Principal Officer(s) in the National Executive Committee of the Party making it unjust to allow such Principal Officer(s) to participate in the appointment of a fact-finding or Disciplinary Committee shall exclude the entire Principal Officer from the entire arbitral process. (vi) For the purpose of ARTICLE 21 of this Constitution. a.
The Ward Executive shall be the adjudicatory body of first instance over complaint and or allegation from the Polling Unit level. b. The Local Government Area Executive Committee shall be the adjudicatory body of first instance over complaints or allegations from the Ward level. c. The State Executive Committee shall be the adjudicatory body of first instance over complaints or allegations from the Local Government Area/Area Council level. d. The Zonal Committee shall be the adjudicatory body of first instance over complaints or allegations from the State Chapter in the zone. e.
The National Executive Committee shall be the adjudicatory body over complaints and allegations from the zones.”
There is no evidence on the record that the appellant complied with the aforestated provision of the 1st respondent’s Constitution. I agree with the findings of the Court below at pages 860 of the record of appeal that: “Rather than follow the prescribed method of channeling his complaints the 1st respondent said he made a publication in form of open letter in This Day Newspaper in breach of the provisions of appellant’s Constitution which the 1st respondent is also accusing the appellant of having violated.”
In the absence of any credible evidence to establish the fact that the appellant exhausted all the internal administrative remedies provided for under Article 21 (B) of the 1st respondent’s Constitution, the trial Court lacked the requisite jurisdiction to have heard and determined the appellant’s suit.
The rather feeble defence proffered by the appellant’s counsel in paragraph 8.09 and 8.11 of the appellant’s brief of argument in my opinion is tantamount to an admission that the appellant did not comply with this condition precedent fundamental to activating the jurisdiction of the trial Court to hear and determine the suit.
Failing to so comply, in my view, made the institution of the suit at the trial Court in the first place premature, because a vital precondition to filing such suit at the trial Court and by extension, the appeal to the Court below and this Court amounted to putting the cart before the horse.
My Lords, having held that the trial Court lacked the jurisdictional competence to entertain the appellant’s suit by reason of his failure to exhaust the internal administrative remedies provided under the 1st respondent’s Constitution is enough to terminate this appeal, however permit me to consider albeit shortly the issue of whether the Court below was right in its decision that the appellant did not show that he had any vested right to sue the respondents.
The law is trite that a person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. See Nworika v. Ononeze-Madu & Ors. (2019) LPELR – 46521 (SC), (2019) 7 NWLR (Pt 1672) 422; Disu & Ors. v. Ajilowura (2006) LPELR – 955 (SC), (2006) 14 NWLR (Pt.1000) 783; Thomas & Ors. v. Olufosoye (1986) LPELR – 3237 (SC), (1986) 1 NWLR (Pt.18) 669.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
For a person to have the legal capacity to sue over a matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. As was the case in relation to ascertaining reasonable cause of action, the pleadings of the party seeking to sue must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated before he can be vested with locus standi to sue. See Barbus & Company Nigeria Limited & Anor v. Mrs.
Gladys Oyiboka Okafor-Udeji (2018) LPELR – 44501 (SC), (2018) 11 NWLR (Pt.1630) 298.
From the relevant excerpts of the appellant’s affidavit elaborately reproduced in the preceding part of this judgment vis-à-vis Articles 12.1, 12.8, 8 (xxx), 13.4(xvi) and (xvii) relied upon by the appellant as containing the bundle of enforceable rights against the respondents, it is clear that the appellant, as rightly held by the Court below is not automatically entitled to be made a member of the Caretaker Committee constituted for the Rivers State Chapter of the 1st respondent. The provisions of Article 13.4(xvi) and (xvii) are as follows: “13(4) xvi.
The National Working Committee shall have the power to set up a Caretaker Committee in place of any organ where there exists in the opinion of the National Working Committee a lacunae by virtue of any act or omission done in furtherance of this Constitution and …. xvii. Any such Caretaker Committee so set up shall have a defined tenure and renewable upon a further review by the National Executive Committee”.
The 1st respondent in exercise of its powers constituted the Caretaker Committee. Therefore, the composition of the State Executive Council of which statutory members of the State Executive Council or of which Statutory Members of the National Convention from the State shall comprise is not the same the composition of a Caretaker Committee that was set up by the National Working Committee. I am in agreement with the decision of the Court below at page 849 – 850 of the record of appeal that: “I am of the firm view that the 1st respondent has no locus standi to have instituted the action.
From a calm reading of the affidavit in support of the originating summons, the facts deposed to do not constitute reasonable cause of action against the appellant and the facts deposed glaringly show that the 1st respondent has no standi to sue.”
The appellant’s action has been met with a couple of jurisdictional afflictions and there happens to be no iota of chance of survival. The appellant having been found wanting in almost all the jurisdictional issues in this appeal is bound to bear the consequences of his suit being dismissed as rightly done by the Court below.
On the whole, I come to the inevitable conclusion that this appeal lacks merit and same is hereby dismissed. The decision of the Court of Appeal, Abuja Division delivered on 29th December, 2020 in Appeal No. CA/PH/215/2020 wherein the 1st respondent’s appeal was allowed and the judgment of the Rivers State High Court sitting in Port Harcourt was set aside is hereby affirmed. Parties are to bear their respective costs. This decision abides appeal No. SC/CV/51/2021.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Jauro, JSC, and I agree with him that this appeal lacks merit.
The reliefs sought by the appellant do not come within title purview of Section 285(14)(a) – of the Constitution (as amended), which says: For the purpose of this section “pre-election matter” means any suit by: (a) An aspirant, who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for the conduct of party primaries, has not been complied with by a political party in respect of the selection or nomination of candidates for an election. (b) An aspirant challenging the decisions or activities of the Independent National Electoral Commission (INEC) in respect of his participation in an election or who complains that the provisions of the Electoral Act or any elections in Nigeria has not been complied with by INEC in respect of the selection or nomination of candidates and participation in an election;
and (c) A political party challenging the actions, decisions or activities of INEC disqualifying candidates from participating in an election or a complaint that the provisions of the Electoral Act or any applicable law has not been complied with by INEC in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.
So, Section 285(14) – of the 1999 Constitution (as amended), which defines what a pre-election matter is, speaks of aspirants, who complain about the conduct of party primaries in respect of the “selection or nomination of candidates for an election”; aspirants who challenge “actions decisions or activities” of INEC, in respect of their participation in an election; and political parties that challenge “actions, decisions or activities” of INEC, “in respect of nominations of candidates for an election, timetable for an election, registration of voters and other activities in respect of preparation for an election”.
In this case, the appellant is not claiming any reliefs touching or pertaining to be an aspirant complaining about the conduct of any primaries or challenging actions, decisions or activities of INEC. In very clear terms, the Court of Appeal was definitely right to hold that the suit filed at the trial Court is not a pre-election matter. In the final analysis, this Appeal No SC/CV/17/2021 completely lacks merit; the appeal therefore fails and it is hereby dismissed.
This appeal is a sister appeal to Appeal No. SC/CV/51/2021 and it was agreed by learned counsel for all the parties that the said appeal shall abide the decision of this Court in this appeal. This appeal having been dismissed, Appeal No. SC/CV/51/2021 is accordingly dismissed. I also order that the parties shall bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother, Adamu Jauro, JSC. True to type my Lord has exhaustively and adequately considered and addressed the issues in contention in the appeal and I completely agree with the reasoning and conclusion that the appeal is unmeritorious. I have nothing extra to add. Accordingly, I hold that the appeal lacks merit and I also dismiss it.
I abide by the consequential orders made in the lead judgment.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, Jauro, JSC granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal. My learned brother has fully and sufficiently covered the field. I am in full agreement with the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add. I abide by all consequential orders including the order of costs.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment delivered by my learned brother, Lord Justice Adamu Jauro, JSC. I agree with the reasoning, conclusions and orders therein.
It is trite law that where a particular word or phrase is defined in a statute, its meaning would be as so defined in the statute. No other meaning can be given to the word or phrase outside its definition by the statute. As held by this Court in Anyah & Ors. v. Iyayi (1993) 9 SCNJ 53, (1993) 7 NWLR (Pt. 305) 290.
“It is settled law that where a word or phrase has been defined in an enactment that meaning must be restricted to the words so defined in the statute, the definition governs.” Therefore, the word pre-election having been defined by Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution), no other meaning can be given to it, except the one given to it by its definition in Section 285(14) of the 1999 Constitution.
The exact text of this provision is fully reproduced at pages 32 to 33 of the lead judgment. The use of the limiting word “means” in defining a pre-election matter” further limits its meaning to only that listed therein.
In view of the clear provisions of Section 285(14) of the 1999 Constitution, the Suit at the trial Court that led to this appeal is not a pre-election matter because it was brought by a member of a political party claiming that the political party acted ultra vires its constitution by setting up a Caretaker State Executive Committee to function as the Party’s River State Executive Committee, which Caretaker Committee excluded all statutory members of the State Executive Committee including himself. The claimant is not an aspirant in a Primary Election of the Party.
The action is not complaining that the selection or nomination of the party’s candidate for a general election did not comply with the Electoral Act or its Electoral Guidelines. The action is not challenging the action of INEC in respect of the selection or nomination of the party’s candidate for a general election.
The action is not brought by a political party challenging the action of INEC disqualifying its candidate from participating in a general election or that the decision or action of INEC in respect of nomination of its candidate for an election, timetable for an election, registration of voters and other activities of INEC in respect of an impending election is contrary to the Electoral Act or other laws. Section 285(14) expressly listed the three types of matters that constitute or mean a pre-election matter, clearly excluded the matters not mentioned therein.
The law is settled by an unending line of judicial decisions that where a statute expressly lists the items to which it applies, it excludes those not listed therein. This interpretative rule is often expressed in the maxim, the express mention of certain things excludes those not mentioned. So if Section 285(14) had intended the actions concerning the election and appointments of persons to political party officer’s membership of a political party, setting up committees or organs of a political party and its general internal affairs, constitute pre-election matters, it would have stated so.
Since such actions are not listed in Section 285(14) as pre-election matters, they are not. The suit leading to this appeal is not a pre-election matter.
The claim by the appellant that the 1st respondent violated its own constitution cannot vest him with the locus standi to institute an action in respect of the claim. He has no right of action against his political party concerning its decisions or actions on its internal affairs. This is because the Political Party is a voluntary organization or association. As a member of the party, he has no right of action against his political party for breach of its constitution concerning the internal affairs of the party.
He has no personal right to be a member of the executive or committee or caretaker committee of the Rivers State Chapter of the 1st respondent. The right to determine who should lead or manage the said River State Chapter of the 1st respondent as a member of the State Executive Committee belongs to the 1st respondent which right it exercises through a majority of its members through its congresses organized by the NWC or directly by the NWC in the case of appointment of a caretaker committee.
The appellant has not alleged that his contractual right or any of his personal right has been breached by the action of the 1st respondent or that the action or decision of the 1st respondent involve some imputation of a crime against him. See Abubakari & Ors. v. Smith & Ors. (1973) 6 SC 31 and Ufomba v. INEC & Ors. (2017) LPELR – 42079 (SC), (2017) 13 NWLR (Pt.1582) 175. The doctrine of ultra vires has no application in the internal affairs of a voluntary association.
So the decision of the National Working Committee of the 1st respondent appointing its River State Caretaker Executive Committee cannot be challenged in Court as being contrary to the appellant’s constitution. As held by Lord Denning in Institution of Mechanical Engineers v. Cane (1961) A.C. 696 at 724 the doctrine of ultra vires has no application in the internal affairs of a voluntary association of individuals. This decision was followed by the Supreme Court in Onuoha v. Okafor (supra) and PDP v. Sylva (supra) and by the Court of Appeal in Abdulkadir & Anor v.
Mamman & Ors. (supra), Chinwo v. Owhonda (supra) and in Okoroafor & Ors v. Emeka (CA/E/10/2015) of 14-4-2015). It is emphasized in all these decisions that a member of a voluntary organization cannot sue for breach of the internal constitution and regulations of the organization in the internal affairs of the organization.
In any case, the respondents did not even show that the said appointment of caretaker committee of 1st respondent’s River State Chapter by its NWC was in violation of the 1st respondent’s constitution and rules. In the light of the foregoing and for the more detailed reasoning in the lead judgment, I also dismiss this appeal.
As earlier ordered by this Court at the hearing of this appeal, the judgment in this appeal No.SC.17/2021 shall equally abide in appeal No.SC.51/21 as the judgment therein. Appeal dismissed.
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