ANGADI v. PEOPLES DEMOCRATIC PARTY & ORS

The Appellant and 3rd Respondent are both members of the 1st Respondent, a Political Party and both parties contested primary election under the auspices of the 1st Respondent in respect of the General Election into the House of Representative for Bomadi/Patani Federal Constituency of Delta State. This primary election held on 6th December, 2014. The result of the primary elections is being contested by the Appellant. The 1st Respondent submitted the name of the 3rd Respondent to the 2nd Respondent as its candidate for the general election, this action of the 1st Respondent grieved the Appellant, who as a result, took out an originating Summons before the Federal High Court in Suit No: FHC/ABJ/CS/1049/14 on 18th December, 2014 and subsequently another at the F.C.T. High Court in Suit No:FCT/HC/CV/887/14 on 23rd December, 2014 seeking Orders against this decision of the 1st Respondent.
In response to the suit of the Appellant (then Plaintiff) before the F.C.T. High Court, the 3rd Respondent, who was also 3rd Respondent before the Lower Courts, entered conditional appearance on 28th January, 2015 and filed a Notice of Preliminary Objection before the Lower Court on 4th March, 2015 asking the trial Court to dismiss the suit of the Appellant for being a gross abuse of judicial process. On the date slated for definite hearing of the Preliminary objection, the trial Court gave a Ruling wherein it dismissed the action of the Appellant as constituting a gross abuse of judicial process without calling parties to address it on the Preliminary objection, or hearing Parties on the Objection filed.
Dissatisfied with the Ruling of the trial Court, the Appellant appealed to the Court below on 9(nine) grounds. The 3rd Respondent again, filed a Notice of Preliminary objection challenging the competence of the appeal and praying the Court below to strike out the Appeal for want of identifiable signatory to the Notice of Appeal. He also filed a Respondent’s Notice, which was deemed as properly filed on 23rd July,2015, to contend that the decision of the trial Court be affirmed on grounds other than those relied on by the trial Court. The Appellant further filed a Notice of Preliminary Objection to challenge the competency of the said Respondent’s Notice.
In its judgment delivered on 14th August, 2015, the Court of Appeal dismissed the 3rd Respondent’s Preliminary Objection citing substantial justice over technical justice, the Court below also dismissed the Appellant’s Preliminary Objection to the 3rd Respondent’s “Respondent’s Notice” and upheld the Respondent’s Notice. The Court however, considered the fact that such decision may be overturned on Appeal to the Court and abundanti cautela decided on the substantive appeal.
Again, dissatisfied with the decision of the Court below, the Appellant has taken out this Appeal by a Notice of Appeal filed 6th March 2017 but deemed as filed on 16th October, 2017, premised on 11 grounds of Appeal.
The Appellant filed his Brief of Argument dated on 24th November, 2017, the 1st Respondent, on his part, filed its Brief of Argument on 8th December, 2017, the 2nd Respondent filed its Brief of Argument on 27th November, 2017, while the 3rd Respondent filed his Brief of Argument on 1st February, 2018 but deemed filed on 7th February, 2018.
In the Appellant’s Brief of Argument, settled by C.A.S. Oshomegie, Esq., Learned counsel formulated 6 (six) Issues for determination in this appeal to wit:-
1. Was the Lower Court not wrong to have held that the Primary Election of the 1st Respondent conducted by Zuokumor Derebi was not approved and recognized by the National Executive Committee of the 1st Respondent in the face of copious evidence to that effect before the Court?
2. Was the evidence of the Respondents particularly that of the 3rd Respondent on which the Lower Court based its judgment valid and admissible having regard to the 1st respondent’s Constitution, Guideline for the 2015 General Election and the Electoral Act 2010? Put differently, did the Lower Court properly evaluate the total evidence placed before it Vis a Vis the Law, the Respondents Constitution/Guidelines for 2015 General Election?
3. Having regard to the gamut of evidence placed before the Lower Court, was there any real allegation made against the

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Appellant or was there any factual/Legal disputation as to the venue of the Primaries and the fact that Mr. Zuokumor Derebi was the Returning Officer thereat sufficient to cast doubt on Exhibit OOC.5?
4. Is the Lower Court not wrong: (1) to have in one breadth held that the trial Court had jurisdiction and at another breadth held otherwise in the same Judgment? (2) that the Courts are impotent in the face of Section 33 of the Electoral Act 2010 when no issue regarding Section 33 of the Electoral Act was before it and (3) that the Appellant’s Suit had become otiose/academic when our extant laws decided cases are to the contrary?
5. Whether the Lower Court was not wrong to have held that a Respondent’s Notice of Contention premised on the ground that the trial Court has no Jurisdiction, is Competent or is it not anomalous for a decision that was not based on merit and where no evidence has been formally introduced to give birth to a Respondent’s Notice of Contention?
6.Whether the Lower Court’s manifest lopsided evaluation of evidence in favour of the 3rd Respondent coupled with its failure to invite Parties to move/adumbrate their claim upon the invocation of its power under Section 15 of the Court of Appeal Act is not a clear breach of Fair hearing having regard to the fact that the suit was never heard on merit?”
Learned counsel for the 1st Respondent, G.I.E Ezeuko, Esq. who had withdrawn, the Notice of Preliminary objection hitherto filed to the hearing of this Appeal same having been struck out on 7th February 2018 formulated 4(four) issues before this Honourable Court as follows:
“1. Whether the Lower Court rightly held that the purported primary election allegedly conducted by one Zuokunor Derebi was not recognized by the National Executive Committee of the 1st Respondent for lack of credible evidence to prove the appointment of the said Derebi as its Returning Officer and the venue of the purported election in view of the 1st Respondent’s denial and non recognition of the said purported primary.
2. Whether the Lower Court pursuant to its power under Section 15 of the Court of Appeal Act (2004) rightly based its judgment upon a dispassionate consideration of the parties case, the evidence led before it and rightly dismissed the Appellant as suit based on admissible and credible evidence of the Respondents and whether the said findings of the Lower Court thereof was perverse or occasion any miscarriage of Justice to the Appellant.
3. Whether in view of the reliefs sought by the Appellant in this originating summons, the Lower Court rightly struck out the said originating summon and consequently the appeal for being a futile exercise, academic and for lack of jurisdiction.
4. Whether the Lower Court rightly dismissed the Appellant preliminary objection to the 3rd Respondent’s notice of contention.
Counsel for the 2nd Respondent, Mr. Tunde Babalola Esq., in his Brief of Argument filed on 27th November, 2017, adopted the issues for determination formulated by the Appellant in this Appeal.
On his own part, learned Senior Counsel for the 3rd Respondent, P.I.N. Ikwueto, SAN, in his Brief of Argument filed on 1st February 2018 but deemed as filed on 7th February, 2018 identified only 3 (three) issues for determination in this Appeal as follows:-
“1. Whether from the nature of the Appellant’s Claim in the originating Summons, the Courts below had the jurisdiction to interfere in the internal affairs of a Political Party in determining who the Party’s Candidate in an election should be.
2. Whether the Respondent’s Notice of Contention filed in the Court below was competent.
3. Whether the Court below denied the Appellant fair hearing when it on the invitation of the Appellant it invoked its general powers under Section 15 of the Court of Appeal Act, 2004 as amended.”
I have carefully looked at the issues raised by counsel on behalf of parties in this Appeal vis-a-vis the Record before me and I am convinced that there is only one issue pertinent for resolution in this appeal to wit:-
“1. Whether the Court below was right to find that the trial Court correctly declined jurisdiction in dismissing the suit of the Appellant.”
RESOLUTION SOLE ISSUE
Whether the Court below was right to find that the trial Court correctly declined jurisdiction in dismissing the suit of the Appellant.
Learned counsel for the Appellant submitted that the decision of the Court below that found that the suit of

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the Appellant before the Court was valid and the trial Court had jurisdiction to hear it is pursuant to Section 87(9) of the Electoral Act, 2010 and right. Counsel submitted therefore, that the Court below was wrong to find that the Originating Summons ought to have been struck out for lack of jurisdiction as contained in pages 1221-1234 of the Record when the same Court had earlier found that the trial Court had jurisdiction on pages 1219-1220 of the Record.
Counsel submitted that these findings of the Court below were perverse for being in contradiction with each other and therefore should render the judgment a nullity. Counsel relied on the cases of Ebba & 3 ORS VS OGODO & 2 ORS (2000) 6 SCNJ 100; OSUJI VS EKEOCHA (2009) All FWLR (Pt.490) page 614; AGBOMEJI VS BAKARE(1998) 9 NWLR (Pt. 564) 1 at 8; NGERE & ANOR vs. UKURUKET XIV & ANOR (2018) All FWLR(Pt.882) at 1343.

Counsel submitted that the Court below was wrong to have found that the reliefs sought in the Appellant’s suit amounted to obtaining injunctive reliefs against completed acts when in facts those acts were yet undone as the time of the institution of the Appellant’s suit before the trial Court, counsel submitted further that the issue of pre-election matter being alive in spite of a candidate being sworn in had been settled by this Honourable Court severally in judicial authorities. He referred us to GWEDE VS INEC & 3 ORS (2015) All FWLR (Pt.767) 615; ROTIMI AMAECHI VS INEC & 2 ORS (2008) All FWLR (Pt.407); ODEDO VS PDP & 4 ORS (2016) All FWLR (Pt. 815) 201; Adeogun v. Fashogbon (2009) All FWLR (Pt.449); JEV & ANOR VS IYORTOM & 2 ORS (2016) All FWLR (Pt.837) 760; ISAH SHUAIBU LAU VS PDP & 4 ORS (Unreported) Appeal No.SC.583/2016 Delivered on 23/06/2017 and HON. MR. DORATHY MATO VS HON. HEMBE & 2 ORS (unreported) Appeal NO.SC.733/2016 delivered on 23/06/2017.

Counsel submitted that the Appellant’s suit, being a pre-election matter, surely had not become an academic exercise as the Appellant’s reliefs can be easily situated. Counsel submitted that all that was expected from the Court below was to give effect to the law by declaring the Appellant the winner of the election held in 2015. He submitted that the reliefs sought by the Appellant in his Originating Summons were not different from those sought by parties in the cases cited above where this Court upheld the Appellant’s submissions. Counsel submitted that the Courts, in pre and post election matters have never had any difficulty in giving effect to the law so far as the subject matter; which he posited is the tenure, is still subsisting.
Counsel submitted that since he had the highest number of votes at the Primary election, not even the 1st Respondent has any discretion or choice in declaring him as the winner of the primary election and that this Court should give effect to that fact.
Counsel submitted that on finding that the Appellant is the rightful winner of the primary election of the 1st Respondent, it is incorrect to find that the Court below is helpless or that the reliefs are not far reaching enough.
Learned counsel submitted that the Appellants reliefs were well within the bounds of law and sufficient to infuse the Court below with the jurisdiction to proclaim the Appellant as the winner of the 1st Respondent in the eyes of the law. He relied again on the cases above cited.
Counsel submitted further that the Court below should have found for the Appellant based on the principle of ubi jus ibi remedium and referred to BELLO VS ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt.45) 828; OYEKANMI VS NEPA (2001) FWLR (Pt.34) 404 at 436, counsel submitted that even where there is no relief, but the justice of the case requires a remedy then the Court should create a remedy. Counsel relied on AMAECHI VS INEC (Supra).

Counsel urged this Honourable Court to exercise its power pursuant to Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 22 of the Supreme Court Act and declare the Appellant as the winner of the primary election.
Counsel submitted further that the failure of the Court below to cognizance the fact that the Appellant instituted his suit before the trial Court before the elections and the Respondents disregarded the processes served on them by the Court amounted to an endorsement of the Respondents’ clear scorn for due process of the Courts. He submitted that the Court of Appeal ought to have protected the sanctity of Courts.

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Counsel submitted further that in any claim regarding an electoral matter, an injunction may still be granted by the Courts. He referred to SHUAIBU LAU VS PDP(Supra) and submitted further that no act had been completed since the subject matter of the Appeal is the four(4) year tenure, which inures till 2019. Counsel submitted that the case of PLATEAU STATE & ANOR VS ATTORNEY GENERAL OF THE FEDERATION & ANOR (2006) 3 NWLR (Pt.967) 346 at 419 relied on by the Court below in arriving at its decision was in complete tandem with the Appellant’s case and not against it, since the case of the Appellant is totally beneficial to the Appellant and humanity and so cannot be termed as academic.
Counsel submitted that the issue before the Court below was not whether a political party can change or substitute its candidate as contained in Section 33 but the Appellant’s right of action as per Section 87(9) of the Electoral Act, 2010, and therefore, Section 33 is inapplicable to this Appeal. He relied on UGWU VS ARARUME(2007) All FWLR (Pt. 377) 807.

Counsel urged this Honourable Court to find that the Court below had jurisdiction and that the Reliefs sought by the Appellant in his originating Summons are neither academic nor otiose, but remain valid and subsisting.
Learned counsel for the Appellant further submitted that the Court below was wrong to regard the Notice of Contention filed by the 3rd Respondent. Counsel relied on the cases of OGUNBADEJO VS OWOYEMI (1993) NSCC 176 at 180-184; LAGOS CITY COUNCIL VS AJAYI (1960) 1 ANLR 291; ELIOCHIN (NIG) LTD vs MBADIWE (1986) 1 NWLR 47; ADEKEYE & ORS v AKIN-OLUGBADE (1987) 3 NWLR 291; OGUNLADE VS ADELEYE (1992) 8 NWLR (Pt.260) 409 at 424-425; AFRICAN CONTINENTAL SEAWAY LTD VS NIGERIA DREDGING ROAD AND GENERAL WORKS LTD (1977) 5 SC 235; WILLIAMS VS DAILY TIMES (1990) 1 SCNJ 1 at 13-17; ARISONS TRADING AND ENGINEERING COMPANY LIMITED VS THE MILITARY GOVERNOR OF OGUN STATE & 2 ORS (2009) ALL FWLR (Pt.496) 1819; GWEDE VS INEC (Supra) in submitting that the issue of jurisdiction cannot be raised in a Respondent’s Notice but only by Cross-Appeal.
Counsel although, conceded that the issue of Jurisdiction may be raised at any time, he submitted that the Court below was however wrong to find that the issue of jurisdiction may also be raised in any manner as a Respondent’s notice of contention cannot be used to question the Jurisdiction of a Court.
Counsel submitted that the Court below was further wrong in dismissing the suit of the Appellant without hearing the parties. Counsel submitted that the parties ought to have been called by the Court below to adopt the affidavit evidence filed in the originating Summons and indeed even the preliminary Objection filed by the 3rd Respondent to the suit before the Court to be able to give life to it. Counsel relied on MAERSK LINE & ANOR VS ADDIDE INVESTMENT & 1 OR (2002) 10 NSQR (Pt.1) 579 at 623.

Counsel submitted further that the Respondent’s Notice was not supported by any ground of appeal and as such, ought to have been dismissed by the Court below for being incompetent and urged this Court to hold to that effect.
Learned Counsel to the 1st Respondent on this issue submitted that the Court below rightly dismissed the Appeal of the Appellant after careful consideration of the evidence before it. Counsel submitted that the finding was in no way perverse since there was no evidence on Record to support the claim of the Appellant. Counsel urged this Court not to interfere with the findings of the Court below since these findings were neither speculative nor perverse but based on consideration of credible evidence by the Court below. He referred to OBUEKE VS NNAMCHI (2012) All FWLR (Pt.633) 1840 SC and submitted that the authorities relied on by the Appellant are inapplicable to the circumstances of the Appeal.
Counsel urged this Honourable Court to discountenance the submissions of the Appellant’s counsel on this issue on the premise that the finding of the Court below is in tandem with the law.
Counsel further submitted that the Court below was right to dismiss the Appeal, bearing in mind, the fact that the reliefs sought by the Appellant had become overtaken by events which facts he submitted is borne out of the Records of this Court and remains uncontroverted. He submitted that having not been controverted, these facts are deemed admitted by the Appellant and the Court is duty bound to act on it. He referred to CBN VS OKOJIE(2015) LPELR – 24740 SC pages 33-35. Counsel submitted that the equitable remedy of injunction cannot be granted in respect of completed acts; he referred to A.G. ANAMBRA STATE & ORS V. ROBERT C. OKAFOR & SONS(1992) 2 NWLR (Pt.224) 396.

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Counsel further submitted that the reliefs sought by a claimant is the live wire of his case, he relied on the case of FAYEMI VS ONI (2010) 17 NWLR (Pt.1222) 326. He further submitted that it is the Plaintiff claim that determines whether or not the Court has the jurisdiction to entertain a suit and once the relief sought is not justiciable or academic, the Court will rightly decline jurisdiction to entertain same. He relied on TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517; ADEYEMI & ORS VS OPEYORI (1976) 9-10 SC.

Counsel submitted that the Court below was right to find that the case of the Appellant had become academic and lifeless after carefully considering the reliefs endorsed on the Appellant’s originating Summons.
Counsel submitted that contrary to the submissions of the Appellant, the Court below gave its ruling on the issue of jurisdiction solely on Section 87(10) of the Electoral Act, 2010, and Section 33 of the Electoral Act was only considered vis–vis the reliefs sought. Counsel submitted that whilst the Court is expected to consider a plaintiffs claim to determine whether or not it has jurisdiction, the Court is also empowered to examine the totality of the pleadings of both parties and the evidence adduced to see if the subject matter is within the Court’s jurisdiction. Counsel referred to LADO VS C.P.C. (2011) 18 NWLR (Pt.1279) 689 at 724 paragraphs C-D.

Counsel submitted that there is no uncertainty, confusion or perversion as alleged by the Appellant in the decision of the Court of Appeal, but that the Appellant is trying to lure this honourable Court to interfere with the internal affairs of a political party.
Counsel submitted that the issue of nomination of a candidate by a party as its flag bearer for an election is the exclusive preserve and an internal affair of the party, which the Courts will not interfere with. He referred toONUOHA vs OKAFOR (1983) NSCC 494; TUKUR VS UBA (2013) 4 NWLR (Pt.1343) 90 at 162-163.

Counsel further submitted that although the Appellant erroneously sought to bring his claim under Section 87(9) of the Electoral Act, 2010, the jurisdiction of the Court under the section is so limited and restricted that it cannot accommodate the Appellant’s claim and reliefs sought in any manner.
Counsel submitted that the Claims and reliefs sought by the Appellant do not in any way come under the ambit of the jurisdiction of the Court under Section 87(9) of the Electoral Act as the Court has no jurisdiction to grant same. He referred us to ADEBAYO VS P.D.P (2013) 17 NWLR (Pt.1382) 1 at 59- 60; P.D.P. & ORS VS EZEONWUKA & ORS (unreported) Appeal No. SC.521/2015 delivered on the 7th day of April 2017.

Counsel submitted further that at best, should the Court find that the 1st Respondent breached its guidelines in the nomination of a candidate, the remedy available to the Appellant would be damages and not that the Court would compel the 1st Respondent to nominate the Appellant. He referred to P.D.P. VS SYLVA (2012) 13 NWLR (Pt.1316) 85 at 146 paragraphs B-E.

Counsel also submitted that the case of AMAECHI VS INEC (supra) is distinguishable from the facts of this Appeal on the issue of lis pendis and substitution of candidates, counsel went ahead to demonstrate the differences.
Counsel further submitted on the Respondent’s Notice that a Respondent’s Notice may be filed where a respondent contends that the decision of a Lower Court should should be upheld on other grounds except those given by the Lower Court and is distinguishable from when a Respondent intends that the decision of a Lower Court be reversed either partly or wholly which is when such a Respondent must file a cross-appeal. Counsel relied on ATE CO. LTD VS MIL. GOVERNOR OF OGUN STATE (2001) 15 NWLR (Pt.1163) 26.

Counsel submitted that certainly from the records before this honourable Court, the 3rd Respondent was by his Notice, contending that the decision of the Lower Court which struck out the suit of the Appellant should be affirmed on grounds other than the abuse of Court process.
Counsel submitted that the Appellants submission that the 3rd Respondent should have filed a cross-appeal is a misconception of the purport of a respondents notice. Counsel submitted that since the Respondent was seeking to affirm the decision of the Lower Court but on other grounds than founded by the Lower Court, a Respondents Notice was the appropriate way for the 3rd Respondent to tow. He relied on the case of TOULONS S.A. VS G.C.D.N.T. SPA (2011) 4 NWLR (Pt.1236), Counsel submitted that the authorities cited by the Appellant are inapposite

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to this Appeal and that cases are decided based on its peculiar circumstances. He relied on ADEGOKE MOTORS VS ADESANYA (1989) NWLR (Pt.109) 250.

He submitted that the Court below rightly dismissed the Appellant’s preliminary objection to the 3rd Respondent’s Notice and concluded on this issue by submitting that a Court has the inherent power to peruse, consider and use any document/material in its file in the interest of substantial justice and therefore was no need for the Court below to call Appellant to adopt his affidavits which were already before the Court.
Learned Counsel for the 2nd Respondent in this Appeal, although adopted the issues formulated by the Appellant, proffered no argument on these issues, citing the need to remain neutral. He referred to AJIDE VS KELANI (1985) 3 NWLR (Pt. 12) page 248 and A.G. FEDERATION vs ABUBAKAR (2007) 10 NWLR(Pt.1041) page 1 in supporting his decision to remain neutral.
For the 3rd Respondent, Learned Senior Counsel for the 3rd Respondent submitted that it is the Plaintiffs claim that determines whether or not a Court has jurisdiction.
Senior counsel referred to IZEKWE vs NNADOZIE 14 WACA 361; ALHAJI UMARU ABBA TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517; ADEYEMI & ORS vs OPEYORI (1976) 9-10 SC (Reprint).
Senior counsel submitted further that where it becomes apparent to a Court from the totality of the pleadings of both parties and evidence adduced to establish same that the claims before it cannot in reality come within the statutory jurisdiction of the Court, the Court will take into account, the totality of the facts pleaded by the parties and evidence adduced in determining the Court’s jurisdiction or otherwise. He referred to LADO VS C.P.C. (2011) 18 NWLR (Pt.1279) 689 at 724; YAR’ADUA VS YANDOMA (2014) 4 NWLR (Pt.1448) 123 at 161 paragraphs C-F.

Learned silk submitted that a calm and dispassionate consideration of the totality of the facts pleaded and evidence adduced by the parties herein before the Lower Court, led to the inevitable conclusion of the Court below that it had no jurisdiction to entertain the case of the Appellant, counsel submitted further that the Appellant’s claims cannot really come within Section 87(9) of the Electoral Act.
Senior counsel submitted that from the affidavit in support of the Appellant’s originating summons, it is clear that the claims of the Appellant had become academic, which fact, the Court below took cognizance on record, he referred to pages 1239-1242 of the record of Appeal and submitted further that the 3rd Respondent’s Notice filed at the Court below was also based on the tenor of the Appellant’s claim. He relied on ONUOHA VS OKAFOR(1983) NSCC 494.

Senior Counsel submitted that in determining whether the decision of the Court below was indeed perverse, what this Court would look at is the Record and not the submission of counsel, for no matter how beautiful or compelling submissions are, they do not take the place of evidence on record. Senior counsel submitted that such submissions cannot take the place of evidence on record. Learned Counsel referred us to ADUA VS ESSIEN(2010) 14 NWLR (Pt.1213) 141 at 167A; ATAMAH VS EBOSELE (2010) All FWLR (Pt.506) 1925 at 1939A.

Senior Counsel submitted that there was nothing on Record to show that the 3rd Respondent admitted to not taking part in the primaries conducted by the National Headquarters of the 1st Respondent, counsel submitted that an admission must be clear, unequivocal, total and not open to speculation or conjecture. He referred to ORJI vs DORJI TEXTILE MILLS & ORS (2009) 12 SC (Pt III) 73 at 105 5; OKAH II VS AYIKA II (1962) 12 WACA 31 at 33; U.B.A. PLC VS IBACHEM LTD (2014) 6 NWLR (Pt.1402) 125 at 154- 155 G-D.

Senior counsel submitted that the Appellant wanted the Court below to compel the 1st Respondent to sponsor him as its candidate, which the Court had no jurisdiction to do. Counsel submitted that the circumstances of this Appeal are different from those in JEV VS IYORTOM (2014) 4 NWLR (Pt.1428) 575; GWEDE VS INEC (2015) ALL FWLR (Pt.767) 615.

Senior counsel further submitted that the contentions of the Appellant based on the principle of ubi jus ibi remedium presupposes that that the Appellant had a legal right to which he was entitled to a remedy in Court. Counsel submitted that that was not the case in this Appeal. He referred to P.D.P. VS SYLVA (Supra).

Learned senior counsel submitted that the Appellant was misguided in submitting that it is not possible to file a

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Respondent’s Notice when questioning the jurisdiction of the Court as the authorities relied on are inapposite to this Appeal.
Counsel submitted that by Order 9 Rule 2 of the Court of Appeal Rules, 2011, the procedure is clearly allowed by the rules of the Court below.
Counsel submitted further that the decisions in the cases relied on by the Appellant were based on the common feature that the Respondents in whose favour the Lower Courts gave judgments, sought to vary the judgment for want of jurisdiction.
Senior counsel submitted that the trial Court had dismissed the suit of the Appellant for want of jurisdiction on the ground of being an abuse of Court process and the 3rd Respondent was merely urging the Court below to affirm the decision of the trial Court on lack of jurisdiction on the ground that the claims in this suit related to the internal affairs of political party over which the trial Court would still, have no jurisdiction. Learned senior counsel submitted that the 3rd Respondent’s Notice is neither contradictory nor inconsistent with his contentions in the trial Court to require a cross-appeal. He referred to ODUFUYE VS. FATOKE (1977) 4 SC (Reprint) 8 at 1530; EMEKA vs OKADIGBO (2012) 18 NWLR (Pt.1331) 55; (2012) 7 SC (Pt.1) 1 at 55 15
Learned senior counsel for the 3rd Respondent submitted that the Court below was right when it found that the issue of jurisdiction can be raised at any time and in any manner by the parties or even suo motu by the Court.
He submitted that the issue of whether the case was heard on merit by the trial Court or not, goes to no issue when an appellate Court is being called on to determine the issue of jurisdiction of the Court, counsel submitted that if the trial Court never had jurisdiction to determine the suit, there certainly would be nothing to determine on the merits.
RESOLUTION
It is now a well-settled principle of law that the issue of jurisdiction is an all so important one, which must be decided before a Court can proceed to adjudicate on a matter. Further, the issue of jurisdiction may be substantiated through the presence of certain features as laid down in the age old judicial authority ofMADUKOLU VS NKEMDILIM (1962) 2 NSCC 374 at 379-378, wherein this Honourable Court held thus:-
“Put briefly, a Court is competent 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; and
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 due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
It is clear from the forgoing that there is not just one way of establishing that a Court has jurisdiction on any given matter, and the mere fact that a Court has jurisdiction on an issue such as subject matter, does not automatically imbue the Court with jurisdiction on another issue.
The Appellant has raised a lot of dust on the fact that the findings of the Court below were perverse and contradictory. I find it necessary to reproduce the relevant portions of the judgment of the Court below in deciding this. On pages 1219-1220 of the Record of Appeal, the Learned justices of the Court of Appeal found as follows:
“It is clear therefore, that by virtue of Section 87(9) of Electoral Act, 2010 (as amended) the Federal High Court or a High Court of a State or the High Court of the Federal Capital Territory Abuja has jurisdiction to determine whether or not a political party conducted its primary election in accordance with the Electoral Act, 2010 (as amended), the Constitution and guidelines of the political party…
I agree with the argument of the learned counsel for the 3rd respondent that it is the plaintiffs claim that determines whether or not the Court has jurisdiction…
I have examined the claims of the appellant as contained in his originating summons and the claims ex facie are justiciable in an appropriate High Court.
The learned senior counsel for the 3rd respondent, however, made a valid point when he complained about the appellant’s reliefs. The relief sought by a claimant or plaintiff is the live wire of his case.”
The Court below further held at pages 1223-1224 of the Record thus:

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“Having regard to the nature of the reliefs sought by the appellant, the trial Court ought not to waste its precious judicial time in undertaking an exercise in futility. The reliefs sought by the appellant have become academic having regard to the fact that all the injunctions sought are in respect of acts which had since been concluded. The appellant’s case has become merely of academic relevance. A Court of law does not entertain a case which is academic in nature, without any utilitarian value to the claimant or plaintiff…
it is in this respect that the 3rd respondent’s notice has merit and it is hereby upheld. The appellant’s originating summons ought to have been struck out by the Lower Court on the ground of lack of jurisdiction.”
The issue of jurisdiction of a Court to determine a case may be determined as per subject matter of the case, the parties between whom the issue is joined, or the kind of relief sought. See ADEYEMI v. OPEYORI (1976) 9-10 SC 31; IKINE vs EDJERODE (2001) 92 LRCN 3288 at 3316; ALADEGBEMI vs FASANMADE (1988) 3 NWLR (Pt.81) 129.These factors operate exclusively of one another such that if any one is faulty, in spite of the other two being present, the Court cannot exercise any valid jurisdiction.
The mere presence of one feature does not exclude the need for the presence of all other features. The concept of what jurisdiction encompasses was proffered in the judgment of this Honourable Court in ALADEJOBI VS N.B.A. (2013) 15 NWLR (Pt.1376) page 66 at 81, wherein this Court held as to the Constitution of jurisdiction thus;
“It is said to be the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority of the Court is controlled or circumscribed by the statute creating the Court itself or it may be circumscribed by a condition precedent created by a legislation which must be fulfilled before the Court can entertain the suit. It is the power and authority of a Court to hear and determine a judicial proceedings and power to render particular judgment in a cause of action.

The issue of whether the trial Court below was right in considering processes which they had not been addressed on processes filed before it. This Court has held particularly in GBAGBARIGHA vs TORUEMI (2013) 6 NWLR (Pt.1350) 289 at 310, paragraphs C-G as follows:
“When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu.
The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge:-
1. When the issue relates to the Courts own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the record serious questions of the fairness of the proceedings is evident.”
(Underlining mine).
It is my fervent belief that the Court below, in deciding whether it had jurisdiction on the Appeal, needed not to call any of the parties for further address in arriving at a decision.
Furthermore, learned counsel for the Appellant’s submission as to the propriety of the Court below, regarding the Respondent’s Notice filed by the 3rd Respondent in submitting that the issue of jurisdiction cannot be raised in a Respondent’s Notice but only by cross-Appeal is not tied to any ground of appeal and being raised for the first time before this Court and without the leave of this Court. It is trite that an issue, not raised at the Court below cannot be raised for the first time on appeal. It is now trite that any issue not distilled from any ground of appeal goes to no issue. See ETA VS DAZIE (2013) 9 NWLR (Pt.1359) page 248 at 262 paragraph E-F; OSINUPEBI VS SAIBU (1982) 7 SC 104; ALI VS CBN (1997) 4 NWLR (Pt.498) 192.

Flowing from the above, I hold that it is indisputable that the Court below, found that even though it had jurisdiction on the subject matter of the Appeal, it had no jurisdiction on the reliefs sought by the Appellant in the substantive matter before it. I uphold this decision of the Court of Appeal and hold that the Court of Appeal was right when it declined jurisdiction on this appeal as it indeed had no jurisdiction to entertain same.

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The reliefs sought by the Appellant in his case before the trial Court have since become otiose and academic taking into consideration the facts and circumstances of this case. The Appellant herein sought Six (6) declaratory reliefs, which if granted will confer no utilitarian advantage or value to him without the grant of the injunctive orders which he has sought.
The challenge however, is that the injunctive reliefs sought by the Appellant are with respect to completed acts. It is the law that Courts do not restrain a completed act. This Court in IDEOZU VS OCHOMA (2006) 4 NWLR (Pt. 970) 364 at 395, at C-E Per Tobi, JSC held thus:
“In AJEWOLE VS ADETIMO (1996) 2 NWLR (Pt. 431) 391, this Court held that when a Court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. This is so because, what is sought to be prevented had happened. In other words, an interlocutory injunction is not a remedy for an act, which has already been carried out.”
I have carefully looked at the reliefs sought by the Appellant, which he has re-modified on appeal to this apex Court, now if I were to look into the propriety or otherwise of the Appellant changing his case on appeal, I would refer parties to ILODIBIA VS N.C.C (1997) 7 NWLR (Pt. 512) page 174 but that is not to be. Again, I have seen the reliefs of the Appellant, sought before the Lower Courts and I find that indeed, the reliefs cannot be granted in the manner that they have been couched.
In seeking reliefs from a Court of law, a plaintiff ought to seek appropriate reliefs in order not to render academic a subject matter that hitherto would have been life and within the jurisdiction of the Court, when a plaintiff, as in the instant case, omits to seek appropriate reliefs, he ties the hands of the Court and snuffs the life out of the case before the Court. It is trite that Courts do not exercise jurisdiction over academic issues as it would be an exercise in futility. The Court is also not a Father Christmas and cannot grant reliefs not sought before it. See UBN LTD vs OGBU (1995) 2 NWLR (Pt. 380) 647; KATE ENTERPRISES LTD vs. DAEWOO NIG. LTD.(1985) 2 NWLR (Pt.5) page 116.; OWOADE vs OMITOLA (1988) 2 NWLR (Pt. 77) page 413. Looking at the reliefs sought herein, I find that even if granted, would do the Appellant no good as they would merely lay in abeyance, which futile exercise this Honourable court has no jurisdiction to undertake. It is account of all the above that I resolve the sole issue in this appeal against the Appellant.
I must however say, before I end this judgment that I have seen the copious submissions of counsel on issues that were considered and decided upon by the Court of Appeal in its judgment on the substance of the appeal before it, abundanti cautela, where this Court overrules its finding on the issue of jurisdiction.
In the light of my finding that the Court below was right in declining jurisdiction on this appeal, I will decline jurisdiction on these issues and not consider them despite the very alluring temptation in counsel’s submission. I hold the view that the issues, which arose from the Lower Courts decision abundanti cautela are now academic before this Court.
The Court below merely abided the decision of this Court in STOWE vs BENSTOWE (2012) 9 NWLR (Pt.1306) 450 at 463, where this Court stated the law in the following words:
I must observe that the Court of Appeal was correct to hear the appeal on its merit when it was aware that it had no jurisdiction to hear the appeal. When an appeal is pending before a Court of Appeal and the issue of jurisdiction is raised and the Court of appeal has no jurisdiction to hear the appeal, the Court of Appeal as the penultimate Court should proceed to hear the appeal on its merit notwithstanding the fact that it has no jurisdiction. Hearing the Appeal gives the Supreme Court the benefit of its opinion. The reasoning is simple, if the Supreme Court finds both Court had jurisdiction, the suit will have to be sent back to the Court of Appeal with great cost to the litigant and waste of judicial time.
I agree and again state the law that where the Lower Court declines jurisdiction on an appeal before it, it is better for the Lower Court, not being the final Court, to hand down a decision on the substance of the case to enable the Supreme Court give consideration to the substance where it overrules the Lower Court’s decision to decline jurisdiction.
Contrary to what has been urged on this Court in this appeal, let me state clearly that the mere consideration of the substance of a case by a Court despite its lack of jurisdiction does not automatically confer jurisdiction on the appellate Court to exercise its appellate jurisdiction on the decision of the Lower Court on the substance of the matter which it decided abundanti cautelu. Where the Court of Appeal, as in this case, declines jurisdiction on an appeal

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but proceeds to hand down a decision on the substance abundanti cautela, no jurisdiction will be conferred on the Supreme Court to consider the merit of that decision if the Supreme Court finds that the Court of Appeal rightly declined jurisdiction on the appeal. The appellate jurisdiction of the Supreme Court to consider the correctness or otherwise of the decision handed down abundanti cautela by the Court below will only be activated if the Supreme Court overrules the Court of Appeal’s decision declining jurisdiction on the appeal.
It is in view of the foregoing, that I find it pertinent to dismiss this appeal for lacking in merit. The judgment of the Court of Appeal of 14th August, 2015 is hereby affirmed.
No order as to costs.
OLABODE RHODES-VIVOUR, J.S.C.: I have read in draft the leading judgment by my learned brother, Bage JSC, and I agree that the appeal lacks merit and should be dismissed.
The judgment delivered by the Court of Appeal is also affirmed by me.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and I shall make a few comments in support of the reasonings for which the decision came about.
This is an appeal against the judgment of the Court of Appeal Abuja Division or Court below or Lower Court delivered on 14/8/15 wherein it held that the decision of the trial Court was wrong in dismissing the suit of the appellant.
The fuller details of the facts leading to this appeal are well set out in the leading judgment and so I shall not repeat them unless the occasion warrants a reference to any part thereof.
On the 7th day of February, 2018 date of hearing, learned counsel for the appellant, Christopher Oshomegie Esq. adopted the brief of argument of the appellant filed on 24/11/17 wherein were distilled six (6) issues for determination, viz:-
ISSUE NO. 1:
Was the Lower Court not wrong to have held that the primary Election of the 1st respondent conducted by Zuokumor Derebi was not approved and recognized by the National Executive Committee of the 1st respondent in the face of copious evidence to that effect before the Court?
Distilled from Ground 1.
ISSUE NO. 2:
Was the evidence of the respondents particularly that of the 3rd respondent on which the Lower Court based its judgment valid and admissible having regard to the 1st respondents Constitution, Guideline for the 2015 General Election and the Electoral Act 2010? Put differently, did the Lower Court properly evaluate the total evidence placed before it vis-a-vis the law, the 1st respondents Constitution/Guidelines for the 2015 General Election? Distilled from Ground 2 and 3.
ISSUE NO.3:
Having regard to the gamut of evidence placed before the Lower Court, was there any real allegation made against the appellant or was there any factual/Legal disputation as to the venue of the primaries and the fact that Mr. Zuokumor Derebi was the Returning Officer thereat sufficient to cast doubt on Exhibit OOC.5? Distilled from Ground 4.
ISSUE NO.4:
Is the Lower Court not wrong: (1) to have in one breadth held that the trial Court had jurisdiction and at another breadth held otherwise in the same judgment? (2) that the Courts are impotent in the face of Section 33 of the Electoral Act 2010 when no issue regarding Section 33 of the Electoral was before it and (3) that the appellant’s suit had become otiose/academic when out extant laws and decided cases are to the contrary? Distilled from Grounds 5, 6, 7 and 8.
ISSUE NO.5:
Whether the Lower Court was not wrong to have held that a respondent’s Notice of Contention premised on the ground that the trial Court has no jurisdiction, is competent or is it not anomalous for a decision that was not based on merit and where no evidence has been formally introduced to give birth to a respondent’s Notice of Contention?

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Distilled from Ground 9.
ISSUE NO.6:
Whether the Lower Courts manifest lopsided evaluation of evidence in favour of the 3rd respondent coupled with its failure to invite parties to move/adumbrate their claim upon the invocation of its power under Section 15 of the Court of Appeal Act is not a clear breach of fair hearing having regard to the fact that the suit was never heard on merit? Distilled from Grounds 10 and 11.
Learned counsel for the 1st respondent, G. I. Ezeuko adopted its brief of argument filed on 8/12/17 and formulated four issues for determination which are thus:-
1. Whether the Lower Court rightly held that the purported primary election allegedly conducted by one Zuokumor Derebi was not recognized by the National Executive Committee of the 1st respondent for lack of credible evidence to prove the appointment of the said Derebi as its Returning Officer and the venue of the purported election in view of the 1st respondent’s denial and non recognition of the said purported primary election. (Grounds 1 and 4).
2. Whether the Lower Court pursuant to its power under Section 15 of the Court of Appeal Act (2004) rightly based its judgment upon a dispassionate consideration of the parties case, the evidence led before it and rightly dismissed the appellant’s suit based on admissible and credible evidence of the respondents and whether the said findings of the Lower Court thereof was perverse or occasioned any miscarriage of justice to the appellant; (Grounds 2, 3, 10 and 11).
3. Whether in view of the reliefs sought by the appellant in his originating summons, the Lower Court rightly struck out the said originating summons and consequently the appeal for being a futile exercise, academic and for lack of jurisdiction, (Grounds 5, 6 and 7).

4. Whether the Lower Court rightly dismissed the appellant Preliminary Objection to the 3rd respondent Notice of Contention. (Ground 9).
P. I. N. Ikwueto SAN, learned counsel for the 3rd respondent adopted the brief of argument filed on 1/2/2018 and deemed filed on 7/2/2018 and raised three issues for determination which are thus:-
I. Whether from the nature of the appellant’s claim in the Originating Summons, the Courts below had the jurisdiction to interfere in the internal affairs of a political party in determining who the party’s Candidate in an election should be. (Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal).
II. Whether the Respondent’s Notice of Contention filed in the Court below was competent. (Ground 9 of the Notice of Appeal).
III. Whether the Court below denied the appellant fair hearing when on the invitation of the appellant it invoked its general powers under Section 15 of the Court of Appeal Act 2004 as amended. (Grounds 10 and 11).
The issues of the 3rd respondent are simple and apt for the use in this appeal and I shall utilise them.
ISSUES 1, 2 AND 3:
ON ISSUE I:
Whether from the nature of the appellant’s claim in the Originating Summons the Courts below had the jurisdiction to interfere in the internal affairs of a Political Party in determining who the partys candidate in an election should be. (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Notice of Appeal).
ON ISSUE II:
Whether the respondent’s notice of Contention filed in the Court below was competent.
ON ISSUE III:
Whether the Court below denied the appellant fair hearing when on the invitation of the appellant it involved its general powers under Section 15 of the Court of Appeal Act 2004, as amended.
The submissions of the appellant are in summary form hereunder, viz:-
a. That the Returning office for the Primaries of the 1st respondent conducted on the 6th day of December 2014 was no other person but Zuokumor Derebi.
b. That the said primaries was approved by the National Executive of the 1st respondent.

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c. That the venue of the said primaries was never in doubt. It was in Bomadi, the Headquarters of Bomadi/Patani Federal Constituency.
d. The said returning officer, return the appellant as the winner of the said primaries having scored the highest vote in the approved form and format of the 1st respondent herein.
e. The 3rd respondent himself acknowledged and recognized Zuokumor Derebi as the Returning officer of the said primaries.
f. The Appeal Panel of the 1st respondent upheld the victory of the appellant in the said primaries.
g. The purported primaries organized by the 3rd respondent for himself, was contrary to the 1st respondent’s Constitution, Guideline and the Electoral Act 2010. The 1st respondent’s appeal panel condemned the 3rd respondent for organizing a primary for himself.
h. The 3rd respondent by his evidence showed that he never participated in the Primary Election organized by the National body of the 1st respondent,
i. The evidence adduced by the respondent were inadmissible being contrary to the Electoral Act 2010 and the 1st respondent’s Guidelines.
j. The Lower Court failed to properly evaluate and accord the evidence before it requisite consideration wherefore it came to an erroneous decision.
k. The reliefs of the appellant are subsisting, valid and alive. They are neither academic nor otiose as the tenure in issue subsists to 2019. The act is not competed.
l. The Notice of Contention by the 3rd respondent is incompetent,
m. The failure of the Lower Court to give an even handed consideration of the evidence of the parties led it to a lopsided consideration of the evidence of the respondent to the detriment of the appellant thereby occasioning miscarriage of justice.
n. The Lower Court has ample and plenitude of jurisdiction to hear the appellant’s Originating Summons.
Learned counsel for the appellant cited many judicial authorities in support of the various points raised.
For the 1st respondent were submitted against the appeal is bullet point style as follows:-
1. That the appellant claim does not fall within the narrow compass of Section 87 (7) of the Electoral Act (supra) and hence non-justiciable and robs this Honourable Court of the jurisdiction to entertain the claim.
2. That the purported primary election allegedly conducted by one Zuokumor Derebi was not recognized by the National Executive Committee of the 1st respondent.
3. That the appellant failed to lead credible evidence to prove due appointment of the said Zuokumor as the 1st respondents Returning Officer in the primary election into the House of Representatives Bomadi/Patani Federal Constituency of Delta State.
4. That the Lower Court rightly invoked its power under Section 15 of the Court of Appeal Act (2004) and righty based its judgment upon a dispassionate consideration of the parties case, evidence led and rightly dismissed the appellant suit.
5. That the reliefs sought in the appellants originating summons to the trial Court are no longer alive and have become futile even as this suit has become an academic exercise as held by the Lower Court.
6. That the Lower Court rightly dismissed the Preliminary Objection of the appellant to the 3rd respondent’s notice of contention.
7. That the findings of the Lower Court are manifestly supported by evidence led, not perverse and did not occasion any miscarriage of justice to the appellant.
The relevant cases were cited in support of the submissions of learned counsel for the 1st respondent.
Learned counsel for the 3rd respondent contended that the appeal lacked merit and should be dismissed. He cited cases in support of his position.

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To highlight what had been placed before the trial High Court which I see as a seeking of injunctive reliefs directing the 1st respondent to nominate and present to the 2nd respondent, the applicant as its sole and nominated candidate and also a restraining/prohibiting order on the 1st respondent from presenting any other person, including the 3rd respondent except the applicant as its nominated candidate.
The Court below held as follows:-
“Both the 1st respondent and the 3rd respondent, in their separate counter affidavits, stated that the primary election in dispute was conducted at Government College, Bomadi, Bomadi Local Government Area of Delta State on 06/12/2014 and that the returning officer for the said primary election was one Comrade Chiedu Okoh Ugbe.
They said that the 3rd respondent won the primary election by scoring 57 votes against the 10 votes scored by the appellant. They tendered the hand written result sheet as Exhibit J2 (by the 1st respondent) and Exhibit M2 (by the 3rd respondent). They separately tendered the letter appointing Comrade Chiedu Okoh Ugbe was monitored by the 2nd respondent Independent National Electoral Commission (INEC) and The Nigeria Police Force, amongst other security agencies.
The 1st respondent tendered the reports of INEC and the Nigeria police Force on the primary election as Exhibits J3 and J4 respectively. The said reports were tendered by the 3rd respondent as Exhibits M3 and M4 respectively.
The 1st respondent also stated that the nomination of the 3rd respondent as its candidate for the general election into Bomadi/Patani Federal Constituency of the House of Representatives was finally upheld by the National Working Committee of the party on 17/12/2014 and in support of this Exhibit J5 – extract of minutes of the meeting of the National Working Committee was tendered. The same document was tendered by the 3rd respondent as Exhibit M6.
The simple question that begs for an answer is: who actually won the disputed primary election.
(See pages 1239-1240, Vol.3 of the Record; emphasis ours).
More significantly, the court below further found from the Records that:-
“The 1st respondent, in paragraphs 6 – 12 of its counter affidavit, categorically stated that the primary election took place at the Government College, Bomadi, Bomadi Local Government Area of Delta State on 06/12/2014; the appellant in collusion with some unknown persons. hijacked and diverted the primary election materials to an unknown destination”; the 1st respondent’s appointed returning officer -Comrade Chiedu Okoh Ugbe, with its approval and the approval of the INEC (2nd respondent’s) officials present at the venue, conducted the said primary election with “improvised “primary election materials and that the 3rd respondent won the said election with 57 votes while the appellant scored only 10 votes. In paragraphs 11 and 12 of its counter affidavit, the 1st respondent deposed as follows:
“11. That “Exhibit OOC.5 attached to the affidavit in support is not the product of the outcome of the PDP house of Representatives Primary Election for Bomadi/Patani Federal Constituency that took place on 6/12/2014.
12. That the Returning Officer in Exhibit 0005 “was not the Returning Officer for Bomadi/Patani Federal Constituenc.” (See paragraphs 11 and 12 of PDP’s Counter-Affidavit shown at page 704, Vol.2 of the Record).
The Court of Appeal further held as follows:-
“In the face of the serious allegations made against him by the 1st and 3rd respondents, the appellant ought to have stated the venue of the primary election held on 06/12/2014 which he allegedly won. Furthermore, the appellant ought to have tendered the letter by which his returning officer – Mr. Zuokumor Derebi was appointed by the 1st respondent to conduct the primary election.
The failure to state the venue of the primary election and the failure to produce the letter from the 1st respondent appointing the said Mr. Zuokumor Derebi as returning officer cast serious doubt on the appellants claims, merely tendering the result sheet Exhibit 00C5 is not sufficient, HAVING REGARD TO THE PECULIAR FACT AND CIRCUMSTANCES OF THE CASES. (Emphasis mine).
The Court below went on further thus:-
“The purported primary election allegedly conducted by Mr. Zuokumor Derebi was not approved nor recognized by the National Executive Committee. In the present case, the 3rd respondent was rightly nominated as the 1st respondents candidate for the general election held in respect of Bomadi/Patani Federal Constituency of the House of Representatives. The evidence adduced by the 3rd respondent, supported by Independent reports from INEC and

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The Nigeria Police Force, outweighs the evidence tendered by the appellant. In sum, the appellants suit lacks merit and it ought to be dismissed. For the reasons given earlier, the appellant’s suit is hereby dismissed.” See pages 1242-1243, Vol.3 of the Record, underlining mine for emphasis).
It has to be stated that address of counsel does not take the place of evidence. Adua v Essien (2010) 14 NWLR (Pt.1213) 141 at 167; Atamah v Ebosele (2010) All FWLR (Pt.1925) at 19394.

In the first place, and as earlier submitted, the Court below rightly held from the records that:
“The 1st respondent (that is, PDP), in paragraphs 6 – 12 of its counter affidavit, categorically started that the primary election took place at the Government College, Bomadi, Bomadi Local Government Area of Delta State on 06/12/2014; the appellant “in collusion with some unknown persons.., hijacked and diverted the primary election materials to an unknown destination”; the 1st respondent’s appointed returning officers Comrade Chiedu Okoh Ugbe, with its approval and the approval of the INEC (2nd respondent’s) officials present at the venue, conducted the said primary election with “improvised” primary election materials and that the 3rd respondent won the said election with 57 votes while the appellant scored only 10 votes. In paragraphs 11 and 12 of its counter affidavit, the 1st respondent deposed as follows:
“11. That “Exhibit 00C5” attached to the affidavit in support is not the product of the outcome of the PDP House of Representatives Primary Election for Bomadi/Patani Federal Constituency that took place on 6/12/2014.
12. That the Returning Officer in “Exhibit 0005 was not the Returning Officer for Bomadi/Patani Federal Constituency. (See paragraphs 11 and 12 of PDPs Counter affidavit shown at page 740, vol.2 of the Record).
In a nutshell, what I see from the entirety of the appellants claim is to compel the 1st respondent to sponsor him as their candidate in the election into the Bomadi/Patani House of Representatives whereas the 1st respondent had already consequent upon the primaries held endorsed the 3rd respondent and submitted his name to INEC as its candidate for the said election. The said reliefs are stated as follows:-
“1. A declaration that the 1st respondent in particular and the 2nd and 3rd respondents are bound by the Results of the 1st respondent primaries Election for the Bomadi/Patani Federal Constituency House of Representatives held on 6th and 7th December, 2014 and the Electoral Panel Committee Report thereat that declared the applicant the winner and candidate of the 1st respondent for Bomadi/Patani Federal Constituency as contained in Exhibit 00C.5, 00C.6 and 00C.7.
2. A declaration that the 1st respondent is bound to present and nominate the applicant and no other person the 3rd respondent inclusive as its candidate for the Bomadi/Patani Federal Constituency House of Representatives Election for 2015 in Delta State.
3. A declaration that having regard to Exhibits 00C.5; 00C.6 and 00C.7, the 3rd respondent who failed woefully in the said 1st respondent primary election for Bomadi/Patani Federal Constituency, is not eligible/qualified to be nominated and presented as the candidate of the 1st respondent, the applicant having worn (sic) the primaries and declared the candidate of the 1st respondent of Delta State Election for 2015.
4. A declaration that the 1st respondent having regard to the Electoral Act, its Constitution and its Guidelines with regard to its primaries for Bomadi/Patani Federal Constituency house of Representatives Election for 2015 and the Result thereat – Exhibits 00C.5, 00C.6 and 00C.7 is under a duty to nominate and present ONLY the application to the 2nd respondent as its candidate for the said Bomadi/Patani Federal Constituency Election House of Representatives for 2015 in Delta State.
5. A declaration that the 2nd respondent is under a Constitutional/statutory Duty to ensure and compel the 1st respondent to abide by the result contained in Exhibits 00C.S, 00C.6 and 00C.7.
6. A declaration that the 2nd respondent is under a statutory duty not to accept any other name inclusive of the 3rd respondent expect that of the applicant as represented by Exhibits 00C.5, 00C.6 and 00C.7
7. An order of this Honourable Court directing the 1st respondent to nominate and present to the 2nd respondent the applicant as its sole and nominated candidate for the Bomadi/Patani Federal Constituency house of Representatives Election for 2015.
8. A perpetual order of injunction restraining/prohibiting the 3rd respondent from presenting himself or allowing his name to be

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presented by the 1st respondent to the 2nd respondent as the nominated candidate for Bomadi/Patani Federal Constituency House of Representatives Election for 2015.
9. A perpetual injunction restraining/prohibiting the 1st respondent from presenting any other name/person, he 3rd respondent inclusive EXCEPT THE APPLICANT as its nominated candidate for Bomadi/Patani Federal Constituency House of Representatives Election for 2015.
10. A perpetual injunction restraining/prohibiting the 2nd respondent from accepting and/or acting on any other name, including that of the 3rd respondent EXCEPT that of the applicant presented to as its nominated candidatefor the Bomadi/Patani Federal Constituency house of Representatives Election for 2015.
11. An older of perpetual injunction restraining/prohibiting the 1st respondent from replacing the name of the applicant with that of the 3rd respondent or any other person as its candidate for the Bomadi/Patani Federal Constituency house of Representatives Election 2015.
12. AND SUCH OTHER OR FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this application.
(Emphasis mine).
In paragraphs 14, 16 and 17 of the said supporting affidavit to the originating summons, the appellant further deposed thus:-
“14. That alarmed by this revelation, I went to the 1st respondents Secretariat on the 22nd day of December 2014 (that is several days after the primaries) as about 3.00pm where I stumbled on and had a peep into an informal list that actually contained the name of the 3rd respondent INSTEAD OF MINE.”
16. That replacing my name or attempting to replace my name with that of the 3rd respondent without the timely intervention of this Court will create a state of impossibility for me to participate in the said election thereafter.
17. That any attempt to replace my name with that of any other person will be a grave violation of both the Electoral Act (sic) as well as the Constitution of the 1st respondent.”
(Emphasis mine).
From the claims what the appellant really is seeking is the invocation of Section 87 (4) (c) (ii) of the Electoral Act 2010 as amended and using the Court to compel a political party and in this case the PDP or 1st respondent to impose him as its candidate.
The limitations placed on the Court in the application of Section 87 of the Electoral Act are in a long line of cases and I shall refer to what my learned brothers faced with similar situation had to say.
In Tukur v UBA (2013) 4 NWLR (Pt.1343) 90 at 162E-163E, this Honourable Court followed Onuoha v Okafor(supra) and held that:
No aspirant is entitled to approach the Court to force the political party to nominate him or her as candidate on the pretext that a breach of the partys guidelines had occurred However the Court has been empowered by the introduction of Section 87 (9) of the Electoral Act to see that the guidelines of a political party are not breached albeit with impunity thereby ensuring that no excesses and arbitrariness of political parties are foisted on a member of the party. The above does not detract from the right of the political party in its sponsorship of a candidate of its choice the Court has NO business whatsoever in entering into the process rightly or wrongly done by a political party in its selection of a candidate of its liking. The BEST the Court can do WHERE A BREACH HAS TAKEN PLACE lay in DAMAGES to assuage the candidates grievance. (Emphasis added).
The appellant in paragraph 3.83 of his brief predicated his claims on Section 87 (4) (c) (ii) of the Electoral Act 2010, as amended. However, in Adebayo v PDP (2013) 17 NWLR (Pt.1382) 1 at 59 60 H-B; your Lordships held that:-

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“…the question of jurisdiction as raised hereunder Section 87(4) (c) (ii), C(ii) and 9 in this matter is statutory and that the Courts have limited jurisdiction when invoked under Section 87 (9) (supra) by an aspirant who has participated in the primaries; and which has given him the necessary locus standi The provision of the subsection has conferred on the Courts that limited jurisdiction which in my view HAS NOT derogated from the non-justiciability of a partys wide discretionary powers of choosing one of its members for the elective office (Emphasis added).
My Learned brother, Kekere-Ekun did a clarifying summation in the case of PDP & Ors v Ezeonwuka & Ors (2017) LPELR 42563 thus:-
“In my considered view, the appropriate starting point in determining this issue is to ascertain the nature of the 1st respondent’s claim before the trial Court. While the appellant contends that (the) suit seeks to invite the Court to interfere in the internal affairs of a political party in determining who its candidate should be, which, on the authorities of this Court is not justiciable, it is the contention of the 1st respondent that the claim is within the purview of Section 87(9) of the Electoral Act, 2010, as amended and within the jurisdiction of the Court to hear and determine.“
(Underlining for emphasis).
He stated further as follows:-
“It has been held in a plethora of decisions of this Court that the jurisdiction of a Court to entertain a complaint under Section 87(9) of the Electoral Act falls within a VERY narrow compass. The complainant must be an aspirant and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party…. The rationale for this position is that the nomination and sponsorship of a candidate is within the domestic affairs of a political party and the Courts have no jurisdiction to nominate a candidate for any party.
See PDP v Sylva (2012) 13 NWLR (Pt.1316) 85 at 145 A-E; Gwede v INEC (2014) 18 NWLR (Pt.1438) 56 at 148-149 H-B; Onuoha v. Okafor (1983) 2 SCNLR 244; Emenike v. PDP (2012) NWLR (Pt.1315) 556.
Going on my learned brother stated thus:-
“My Lords, a careful perusal of the reliefs sought and the averments in the 1st respondents supporting affidavit above, particularly paragraph 40 thereof, indicates that the primary election conducted on 7/12/2014 “complied with the provisions of the Electoral Act 2010 (as amended) and was conducted within the dictates of the Electoral Guidelines for Primary Elections 2014 and the People’ Democratic Party (PDP), the 1st defendant on record… In other words, he is not challenging the conduct of the primary nor is he complaining of non-compliance with the provisions of the Electoral Act of the PDP Electoral guidelines… It seems to me that having positively averred that there was due compliance with the provisions of the Electoral Act and the PDP Guidelines in paragraph 40 of the supporting affidavit, the 1st respondent had effectively removed his claim from the purview of Section 87 (9) of the Electoral Act.
This issue of substitution is a different matter altogether.” For the 3rd respondent, I agree with learned counsel that the tenor of the appellant’s affidavit in support of the originating summons is that the primaries were duly conducted and he (not the 3rd respondent) emerged the winner. Faced in a similar position this Court held thus:- “This Court in PDP v Sylva (supra) at 146 B-E per Chukwuma-Eneh, JSC held: “….the choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and Constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiciable Furthermore,….as a legal preposition also deducible from the case of Onuoha v. Okafor no member of a political party has the locus standi to question the party prerogative right on the issue of its choice of candidates for elective offices not even in the face of breaching its rules and regulations, I dare say. “The redress available to such a member who is so aggrieved and who has suffered any damage as a result of refusing him, nomination and sponsorship lies in DAMAGES against the political party and subject to the provisions of the party Constitution, rules and regulations.
In the instant case, the 1st respondents complaint is not that the party’s constitution, Electoral Guidelines or the provisions of the Electoral Act had been violated but that the party had indicted an intention to sponsor a different candidate. In such circumstance, where evidence of actual substitution was not even before the Court, I am of the view, and I do hold that the purport of the claim before the trial Court was to compel his party to sponsor him as its candidate. The trial Court had NO JURISDICTION to grant such a relief, which is within the internal affairs of the party. (Per Kekere-Ekun JSC).

…………………….Q…………………….

I have questioned the case of PDP v Ezeonwuka (supra) so extensively that it could have had the present scenario in mind as the principles therein settled the issues before this Court. That is to say that in the present case, the 3rd respondent Hon. Mutu Nicholas whose name PDP officially submitted to INEC as its duly nominated candidate in the Bomadi/Patani Federal Constituency is still alive and kicking. He does not intend to withdraw his said candidature and so the Court of Appeal cannot be faulted in upholding his candidature as the PDP’s duly nominated candidate in the election in question.
Also to be said is that the appellants invocation of a denial of fair hearing is definitely unfounded as the Court below left no stone unturned in examining the case of the parties presented before in the affidavit and counter affidavits filed by the parties in the originating summons. A plea of denial of fair hearing is not taken as a given merely because a party cries as such being not a technical doctrine which activates and operates by the mere invocation. See Muhammed v. A.B.U. Zaria (2015) 7 NWLR (Pt.1407) 500 at 538; Omokhodion v. FRN (No.2) (2005) 10 NWLR (Pt.934) 581.
I agree with both learned counsel for the 1st and 3rd respondents that the case in the first place was an attempt by the appellant to invest the trial Court or even the appellate ones with those of a political party in the nomination of its candidate for a general election.
The Court of Appeal was well guided and did not hesitate in declining that invitation as this Court must also do inspite of the appellant asking this Court to apply its powers under Section 22 of the Supreme Court Act and do that which the trial Court ought to have done. That invitation was aptly rejected by the Court of Appeal under its Section 15 of the Court of Appeal Act and so this Court declines the operation under Section 22 of the Supreme Court Act.
From the foregoing and the better reasoned lead judgment, I too dismiss this appeal as I abide by the consequential orders made.
JOHN INYANG OKORO, J.S.C.: My learned brother, Sidi Dauda Bage, JSC obliged me in draft a copy of the judgment he has just delivered which I read in advance. I am in agreement with him that there is no merit in this appeal and that it deserves an order of dismissal. I adopt both his reasoning and conclusion as mine. I also dismiss the appeal and abide by all consequential orders made in the lead judgment. I also make no order as to costs.
AMIRU SANUSI, J.S.C.: An advance copy of the draft judgment prepared by my learned brother Bage, JSC just delivered was supplied to me before now.
Having read the said judgment wherein all the salient issues canvassed by the parties learned counsel were adequately dealt with, I find myself in entire agreement with his reasoning and the conclusion arrived at that this appeal is devoid of merit. While adopting the reasoning and conclusion arrived at as mine, I hereby also dismiss the appeal.
I endorse the consequential orders made therein and also decline to award any costs.