By Oliver Omoredia

INTRODUCTION

The recent decision of the Supreme Court in SC. 384/2017-STELLA ODUAH V. SENATOR MARGERY CHUBA OKADIGBO & ORS delivered on the 1st of June 2018, sets out the basis for the exercise of jurisdiction by the Federal High Court in Pre-election matters while firmly emphasizing the need for caution affidavits evidence in court processes. This write-up considers the issues which came before the apex court and highlights the basis of the court’s decision.

FACTS

The 1st Respondent in the appeal, Senator Margery Chuba Okadigbo, contested the primary election held on 7th December 2014 by the Peoples Democratic Party (PDP) to select the party’s senatorial candidate for the Anambra North Senatorial District in the general election scheduled to hold on 14th of February 2015. The 1st Respondent contested the primary along side three other aspirants including the Appellant, Princess Stella Adaeze Oduah. The 1st Respondent contended that she won the primary election by scoring the highest number of valid votes case and was returned winner by the Returning Officer who consequently issued her with a result sheet to that effect.

However, the Chairman of the 2nd Respondent’s(PDP) National Assembly Electoral Panel refused to collect and sign the said result sheet nor forward the name of the 1st Respondent to INEC as the winner of the election and candidate of the party for the office in the general election. The 1st Respondent therefore instituted an action before the Federal High Court, Abuja vide an amended originating summons filed on 17th of March 2015, querying the propriety of the refusal having regards to Section 87 (4)(c)(ii), (9) of the Electoral Act, 2010 and paragraph 25(vii) 29 (c)(e)(g) of the Electoral Guidelines for Primary Elections 2014 of the PDP.

In summary, 1st Respondent sought the following reliefs:

  1. An order declaring her as the authentic and duly elected candidate of the PDP to contest the National Assembly General Election for Anambra North Senatorial District in the general elections.
  2. An order compelling the party to submit her name to INEC as candidate for the said office;
  • An order of injunction restraining the party from submitting any other name as the party’s candidate or substituting or changing the result of the primary election or supplanting the 1st Respondent’s name with any other name;
  1. An order of injunction restraining INEC from accepting or publishing, acting upon or printing in ballot paper any other name as the PDP’s candidate.

At the Federal High Court, the Appellant joined issues with the 1st Respondent and challenged the jurisdiction of the Federal High Court to entertain the action. The Appellant also contended that the issues in the application being contentious could not properly be commenced by originating summons but by writ of summons in the appropriate court. The trial court in its ruling delivered on 11th May 2015, held that it lacked jurisdiction to entertain the suit, same not being within the purview of its exclusive jurisdiction under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Aggrieved by the decision, the 1st Respondent appealed to the Court of Appeal, Abuja Division which ruled in favour of the 1st Respondent and allowed the appeal. The Court of appeal held that the Federal High Court had jurisdiction to entertain the originating summons and set aside the trial court’s decision remitting the case to another Judge of that court for expeditious hearing and determination.

Dissatisfied with the Court of Appeal’s decision, the Appellant appealed to the Supreme Court.

ARGUMENT OF COUNSELS

At the hearing of the appeal before the Supreme Court on 7th March 2018, the lead counsel to the Appellant Tobechukwu Nweke Esq. in urging the court to allow the appeal adopted and relied on the appellant’s brief dated and filed on the 11th of October 2017 and the Appellant’s reply brief deemed on 7th March 2018. Yusuf Ali SAN adopted and relied on the 1st Respondent’s brief also deemed filed on 7th March 2018. No processes where filed by counsel to the 2nd, 3rd and 4th Respondents.

The main issue distilled from the briefs was:

“Whether the Court of Appeal was right to hold that the Federal High Court has jurisdiction to entertain the 1st Respondent’s amended Originating Summons.”

The Appellant, in urging the court to allow the appeal, submitted that the court of Appeal proceeded on a wrong footing when it relied on Section87 (9) of the Electoral Act, 2010 as amended to hold that the Federal High Court has jurisdiction to entertain the 1st Respondent’s suit. He contended that having regards to Section251 (1) of the constitution, the 1st Respondent’s suit fell outside the purview of Section 87 of the Electoral Act. Counsel contended further that the landmark case of Lokpobiri Vs. Ogala (2016) 3 NWLR (Pt. 1499( 328 and other decisions along its line are not applicable to the facts of the case and even though Section 87 (9) and 31 (5) of the Electoral Act had conferred addition jurisdiction on the Federal High court in addition to the jurisdiction under Section 251 of the constitution, the 1st Respondent’s claim did not fall within the ambit of Section 87 (9) of the Electoral Act as to fall within the said provision, the complaint of the 1st Respondent must constitute a challenge on the conduct of the primary election and the 1st Respondent: (i) Must be an aspirant who participated in and failed in the primary election. (ii) Her complaint must be that there was non-compliance with the Guidelines of her political party or the provisions of the Electoral Act. He referred the court to Ardo vs. Ayako (2014) 10 NWLR (Pt. 1416) 591 at 629 F-G.

Learned Counsel for the Appellant argued that the section is not available to an aspirant who admits that the primary election was conducted in compliance with the party’s guidelines or the provisions of he Electoral Act. He cited and relied upon Emenike vs, PDO & Ors. (2012) 12 NWLR (Pt. 1315) 556 @ 591 C-D;, SC. 521/2015:PDP & ORs V. Barr. Sopuluchukwu E. Ezenonwuka & Ano. ; SC.846/2015: Barr. Sopuluchukwu E. Ezeonwuka V. PDP & Ors. Counsel drew the attention of the court to paragraphs of 1st Respondent’s affidavit in the support of her amended originating summons at the Federal High Court and concluded that the averments took the complaint outside the purview of Section 87 (9) of the Electoral Act and since no provisions of Section 251 allowed such action, same was outside the jurisdiction of the Federal High Court.

Finally, Appellant Counsel submitted that Section 251 (1) (p)(q) and (r) would not confer the court with jurisdiction lacking because the administration or management of INEC as a Federal Government agency was not an issue in contention in the suit as only ancillary reliefs where sought against INEC and it is the main reliefs and not the ancillary reliefs which determine jurisdiction. He relied on the case of PDP V. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 137-138; Tukur v. Govt of Gongola State (1984) 4 NWLR (Pt. 117) 517; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374-414 H-H; James V. INEC (2015) 12 NWLR (pt. 1474) 538 at 587.

The 1st Respondent Counsel contended that by Order 22 rule 2 of the Federal High Court (Civil Procedure) Rules, 2009, the court shall order the filing of written addresses in support of or in defence of a claim. He contended that the court in determining the nature of the 1st Respondent’s claim must have recourse not only to the amended originating summons and the affidavit in support thereof but must also consider other processes such as affidavits in support, documentary evidence and written addresses filed. 1st Respondent Counsel also referred to Order 9 Rule 2 (a) (b) of the FHC Rule. Counsel contended that perusal of the said processes reveals that the complaint of the 1st Respondent was that she won the primary and the 2nd Respondent breached the provisions of Section 87 (4)(c)(ii) of the Electoral Act by refusing to forward her name to the 4th Respondent as its candidate and the claims are within the purview of Section 87 (9) of the Electoral Act.

DECISION OF THE COURT

the Supreme Court in finding on the gravamen of the appeal noted that in an action commenced by originating summons, the originating summons and the affidavit in support are the materials to be considered in determining jurisdiction to entertain a cause. The Court noted that the jurisdiction of the court must be apparent from the originating processes filed by the Plaintiff. According to the court:

“In a matter commenced by originating summons, the averments in the supporting affidavit constitute the evidence in the case. It is the law that argument of counsel, no matter how brilliant, cannot take the place of evidence. See: Auto Import Export V. Adebayo & Ors. (2005) LPELR-642 (SC) @ 56-57 D-E…It follows therefore, that arguments advanced in a written address in support of an originating summons are not relevant”

The apex court noted that while it was not in dispute that the action instituted by the 1st Respondent before the trial court was a pre-election matter, the essential question was whether same was properly brought before the Federal High Court having met the conditions for the court to exercise its jurisdiction over pre-election matters under Section 87(9) of the Electoral Act. The apex court properly appreciated this as the issue in contention when it noted:

“The Learned trial Judge declined jurisdiction to entertain the suit on the ground that notwithstanding the fact that the 4th respondent (ie. INEC) is an agency of the Federal Government, having regard to Section251 (1)(p)(q) and (r) of the 1999 Constitution, the only reliefs sought against it are ancillary reliefs…and do not confer jurisdiction on the Federal High Court. The Court of Appeal, in setting aside the decision held that Section 87 (9) of the Evidence Act 2010(as amended) grants limited access and jurisdiction to High Courts, including the Federal High Court, enabling an aspirant who complains  that any of the provisions of the Electoral Act and guidelines of a political party have not been complied with in the selection or nomination of a political party for election, to apply to the Federal High Court, High Court of a State  or Federal Capital Territory to seek redress and held that in the circumstances, the trial court had the requisite jurisdiction. The Appellant disagrees with this finding…”

In deciding what determines the jurisdiction of the FHC in pre-election matters the Supreme Court held that it is the requirements of section 87(9) of the Electoral Act that is the relevant provision to consider and not Section 251 of the Constitution. According to the Court:

“It has been held in several decisions of this court that the mere fact that an agency of the Federal Government is a party to a suit is not sufficient without more to confer jurisdiction on the Federal High Court. The subject matter of the suit must also be taken into consideration. See: Ohakim V. Agbaso (2010) 19 NWLR (Pt. 1226) 172 @ 236-237 G-D; Salim V. CPC (2013) 6 NWLR (Pt. 1352) 501; Ucha V. Onwe (2011) 4 NWLR (Pt. 1237) 386. As previously observed, this is a pre-election matter. Pursuant to its powers under the opening part of Section 251(1) ad pursuant to Section 251 (1)(s) and 251(1) of the 1999 Constitution, the National Assembly enacted the Electoral Act 2010, as amended, which expanded the jurisdiction of the Federal High Court to include election related matters. By Section 87(9) and 31 (5) & (6) of the Electoral Act the National Assembly conferred concurrent jurisdiction in pre-election matters on the Federal High Court and the High Courts of the States and FCT…In effect, being a pre-election matter, the jurisdiction of the Federal High Court to entertain it is not dependent on whether it falls within the exclusive jurisdiction conferred on it by Section 251 (1) of the 1999 Constitution but whether the claim falls within the purview of the provisions of the Electoral Act referred to earlier. See Olugbemi V. Lawrence.”

The court in reiterating the conditions under Section87 (9) of the Electoral Act noted that the Plaintiffs’ claim to fall within the purview of the section must meet the following criteria:

  1. The Plaintiff must be an aspirant who participated in the primary election of his political party;
  2. The complaint must arise from non-compliance with the party’s constitution and guidelines and/or the provisions of the Electoral Act. See: Ugwu V. PDP (2015) LPELR-24352 (SC) @ 34 – 35 C-B; Uwazurike V. Nwachukwu (2018) 3 NWLR (Pt. 1342) 503 @ 526 E-G; PDP V. Sylva (2012) 13 NWLR (Pt. 1316) 85 @ 148; APGA V. Anyanwu (2014) 2 SC (Pt. 1) 1. PDP V. Ezeonwuka (2017) LPELR-42563 (SC) @ 52 C-D.

The Court noted that the rationale for this position is that the nomination and sponsorship of a candidate for an election is within the domestic affairs of a political party and the courts have no jurisdiction to nominate a candidate for any party. Therefore, only breach of the Electoral Act or the Party’s constitution in such process can be actionable. See PDP V. Syla (Supra) @ 146 A-E; Gwede V. INEC (2016) 18 NWLR (1438) 56 @ 148-149 H-B; Onuoha V. Okafor (1983) 2 SCNLR 244; Emenike V. PDP (Supra).

The decision in the appeal however was mainly upon the facts of the in the 1st Respondent’s 39-paragrapgh affidavit in support of her amended originating summons. Particularly, paragraphs 25, 26, 32, 33, 34, 36, 37 and 38. More particularly the court quoted paragraph 32 and 33 of the said affidavit wherein the 1st Respondent stated:

“32. That the result of the Primary Election conducted on 07/12/2014 at Amuda Hall Nteje as declared publicly and recorded on Form-Code PD004/NA by the Returning Officer, Simon Izuorah, is the only legitimate result that emanated from the only legitimate Primary Election conducted by the 1st Defendant on 07/12/2014 at Amuda Hall, Nteje.

  1. That the Primary Election conducted on 07/12/2014 at Amuda Hall, Nteje by the Returning Officer, Simon Izuorah, complied with the provisions of the Electoral Act 2010 (as amended) and was conducted within the dictates of the Electoral Guidelines for Primary Elections 2012 of the Peoples Democratic Party (PDP), the 1st Defendant on record in this suit”

The Court noted that it was glaring from the said paragraphs that the 1st Respondent categorically averred that the primary election in which she participated as an aspirant “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 of the PDP”. The court therefore reasoned:

“Throughout the gamut of the entire supporting affidavit, there is no allegation that any other primary election was conducted or that any other name has been submitted to the 4th respondent as the candidate of the party. It follows therefore that there is no complaint about the conduct of the primaries nor any allegation that the party’s guidelines or the provisions of the Electoral Act have not been complied with…having stated affirmatively that the guidelines of the party and the provisions of the Electoral Act were fully complied with, the 1st Respondent had removed her claim from within the narrow confines of Section87 (9) of the Electoral Act. The position of the law is that once the party has complied with its guidelines and the provisions of the Electoral Act in conducting its primary election, the courts will have no jurisdiction to determine who its candidate should be, as that is a domestic affair of the party. See: Gwede V. INEC (Supra); Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545; Onuoha V. Okafor (Supra); Jang V. INEC (2004) 12 NWLR (Pt. 886) 146…This case calls on all fours with Ezeonwuka’s case. I hold that the Federal High Court lacked jurisdiction to entertain the 1st Respondent’s suit.”

The Supreme Court therefore allowed the appeal and set aside the judgement of the Court of Appeal.

CONCLUSION

This case firmly entrenches the principle for exercise of the jurisdiction of the Federal High Court in pre-election matters under Section 87(9) of the Electoral Act and an applicant to come within such jurisdiction must establish that:

  1. He is an aspirant who participated in the primary election of his political party;
  2. His complaint arose from non-compliance with the party’s constitution and guidelines and/or the provisions of the Electoral Act.

The above two conditions must be clearly evidenced in the applicant’s originating process before the FHC.

Oliver Omoredia, +2348100193573, oliveromoredia@yahoo.com

"Exciting news! TheNigeriaLawyer is now on WhatsApp Channels 🚀 Subscribe today by clicking the link and stay updated with the latest legal insights!" Click here! ....................................................................................................................... Unauthorized use and/or duplication of this material and other digital content on this website, in whole or in part, without express and written permission from TheNigeriaLawyer, is strictly prohibited _________________________________________________________________ [Register Now] ILA Nigeria Branch Marks 10 Years With Infrastructure Financing As Theme For 7th Annual Conference The International Law Association - Nigeria Branch 7th annual conference on public-private partnerships for sustainable infrastructure financing, April 4-5 in Abuja. Details: https://ilanigeria.org.ng/conference _________________________________________________________________

NIALS' Compendia Series: Your One-Stop Solution For Navigating Nigerian Laws (2004-2023)

Email: info@nials.edu.ng, tugomak@yahoo.co.uk, Contact: For Inquiry and information, kindly contact, NIALS Director of Marketing: +2348074128732, +2348100363602.