AngelicaCitation: (2022) 9 NWLR PT. 1836 AT 435.
PARTIES IN FULL:
OSULARU OLABANJO MUYIWA
V.
1. MR. EFUWAPE OLAITAN MUHAMMED
2. ALL PROGRESSIVES CONGRESS (APC)
3. OGUN STATE INDEPENDENT ELECTORAL COMMISSION (OGSIEC).
Courtesy: Moruff O. Balogun, Esq.
Summary of facts:
The appellant as a card-carrying member of the All Progressives Congress (2nd respondent), he, along with Hon. Efuwape Olaitan Mohammed, the Vice Chairman, Caretaker Committee of Ikenne Local Government (1st respondent), Hon Idris Omidiya, Miss Abu Jairat, Mrs. Olufunke Olamade, Mr. Abolore Bakare, and Mr. Waheed Osinaike, purchased the 2nd respondent’s Expression of Interest forms to contest councillorship primary election for Ward 5, Iperu Remo, Ikenne Local Government Area of Ogun State.
When attempt at producing a consensus candidate failed, primary election was scheduled for a given date. On the date of the primary election, the 1st respondent together with Hon. Idris Omidiya, Miss Abu Jairat and Mrs. Olufunke Olamade voluntarily withdrew from the race.
The appellant contested the primary election with Osinaike Waheed and Abolore Bakare. The 1st respondent was made the returning officer of the primary election to select the candidate for the councillorship general election of Ward 5, Iperu Remo, Ikenne Local Government of Ogun State.
At the end of the primary election, the appellant emerged the winner with 15 votes, as against the 4 votes and 0 vote scored by Osinaike Waheed and Abolore Bakare respectively.
The Returning Officer (1st respondent), the delegates/voters and the aspirants appended their signature to the report of the primary election won by the appellant.
When the returning officer went to submit the report to the State Party Chairman at Abeokuta, he manipulated the report in conjunction with some party leaders at the State level and presented his name as winner of the primary election for Ward 5, Iperu Remo, Ikenne Local Government.
Subsequently, when the names of candidates for the Ikenne Local Government election were pasted at the Ward 5 Secretariat, the appellant discovered that his name was replaced by that of the 1st respondent as the councillorship candidate of the 2nd respondent for Ward 5, Iperu Remo, even though the 1st respondent never contested the primary election, contrary to APC Constitution, APC Electoral Guidelines, 2014 and the Electoral Act, 2010.
On the instruction of the appellant, a letter was written to the APC Local Government Area Executive Committee, headed by the APC Chairman, Ikenne Local Government requesting that a fact-finding committee be set up. The 1st respondent was copied that letter. He also wrote a letter to the Governor for his fatherly intervention.
When no action was taken on the letters of complaint, the appellant filed an originating summons before the lower court and sought amongst others;
1. an order maintaining that the 2nd respondent breached the Electoral Act, 2010 (as amended), APC Constitution and APC Electoral Guidelines for nomination of candidates for public office, 2014, by allowing the 1st respondent name, who never participated in the primary election, to be listed and forwarded to the 3rd respondent as the 2nd respondent councillorship candidate or flag bearer for Ward 5, Iperu Remo, Ikenne Local Government; Ogun State;
2. an order nullifying the name of the 1st respondent as the 2nd respondent’s Councillorship candidate or flag bearer for Ward 5, Iperu Remo, Ikenne Local Government; an order directing the 2nd respondent to recognize and forward the name of the applicant as the 2nd respondent councillorship candidate or flag bearer for Ward 5, Iperu Remo, Ikenne Local Government; Ogun State in the forthcoming local government election of the 24h of July, 2021 etc.The summons was supported by an affidavit of 33 paragraphs deposed to by the appellant himself.
In response to the suit, the 1st and 2nd respondents filed a memorandum of appearance, a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the trial court to entertain same, together with a counter affidavit in opposition to the originating summons.
The 3rd respondent did not file any process before the trial court and the Court of Appeal.The trial Court took arguments on the preliminary objection and the originating summons together and in a considered judgment, declined jurisdiction to entertain the suit on the ground that it concerns the internal/domestic affairs of the 2nd respondent and proceeded to strike out the suit.
Dissatisfied, the appellant appealed to the Court of Appeal.
In reaction, the 1st and 2nd respondents responded to the appeal and raised a preliminary objection contending that the originating summons was not personally served on the 1st respondent and that the appellant’s originating summons failed to comply with the mandatory provisions of the Sheriffs and Civil Process Act, 2004 with regard to service of the said process on the 2nd respondent.
In determining the appeal, the Court of Appeal considered the provisions of section 97 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004; section 87 (9) of the Electoral Act, 2010 (as amended); Item 11 on the Concurrent Legislative List contained in the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 6 rule 10 of the Ogun State High Court (Civil Procedure) Rules. They provide as follows:
Section 97 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004-
“Every writ of summons for service under this Part, out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)
“This summons (or as the case may be) is to be served out of the … State (or as the case may be)… and in the … State (or as the case may be).”
Section 87 (9) of the Electoral Act, 2010 (as amended) provides:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political
party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
Item 11 on the Concurrent Legislative List contained in the Second Schedule to the Constitution-
“The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.”
Order 6 rule 10 of the Ogun State High Court (Civil Procedure) Rules-
“An originating process tor service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.
Held: Unanimously dismissing both the preliminary objection and the appeal.
The following issues were raised and determined by the Court of Appeal:
On right of political aspirant to seek redress in court on breach of the Electoral Act and guidelines of political party –
By virtue of section 87 (9) of the Electoral Act, 2010 (as amended), an aspirant who complains that any of the provisions of the Act and the guidelines of a political party has not been complied with in the a selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
Per Sirajo, J.C.A.:
This provision is plain and self-explanatory. It provides a window to an aspirant to challenge the conduct of primary election by his political party if, in his opinion, the provisions of the Electoral Act and Rules of his party have not been complied with.
The instant case on appeal emanates from the conduct of primary election to select a candidate for councillorship election for Ward 3, Iperu Remo, Ikenne Local Government.
In short, the subject matter of the suit concerns local government election in Ogun State. What then is the scope of the Electoral Act, 2010 (as amended)? Does it extend to processes of election, including primary election by political parties, and actual election into local government councils in Ogun State or for that matter, any other State of the Federation? The title of the Electoral Act, 2010 (as amended) reads:
“An Act to repeal The Electoral Act No. 2, 2006 and Independent National Electoral
Commission Act, Cap. 15, Laws of Federation of Nigeria, 2004 and enacts ‘The Electoral Act, 2010 to regulate the conduct of Federal, State and Area Council elections; and for related matters commencement: [20th day of August, 2010]”
The type and class of election to be regulated by the Electoral Act is self-evident from the title of the Act. The Act does not regulate the conduct of election or processes leading to election, such as party primaries, into any Local government council in Nigeria other than the FCT Area Councils”.
On difference between nomination and substitution of candidates in relation to electoral disputes –
There cannot be substitution of candidate without nomination. For a candidate to complain of wrongful substitution, he must first prove that he was nominated.
In the instant case, the appellant did not show that he was nominated by the 2nd respondent as a candidate in the councillorship election of Ward 3, Iperu Remo, Ikenne Local
Government, so he could not have been wrongly substituted.
Nomination comes before substitution and nomination is the function of a political party. Filling and submission of nomination form to a political party and participating in or even winning a primary election simpliciter, does not in law amount to nomination of candidate for election.
On scope of Electoral Act, 2010 and whether regulates primary election of political parties –
The Electoral Act, 2010 is an Act to repeal the Electoral Act No. 2, 2006 and Independent National Electoral Commission Act, Cap. 15, Laws of Federation of Nigeria, 2004 and enacts the Electoral Act, 2010 to regulate the conduct of Federal, State and Area Council Elections; and for related matters from the commencement date of 20th day of August, 2010.
The type and class of election to be regulated by the Electoral Act is self-evident from the title of the Act. The Act does not regulate the conduct of election or processes leading to election, such as party primaries, into any Local Government Council in Nigeria other than the FCT Area Councils.
On power of National Assembly to make laws with respect to registration of voters and procedure regulating elections to local government council –
By virtue of Item 11 on the Concurrent Legislative List contained in the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999, as amended, the National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.
On right of political party to nominate and sponsor candidate for election-
The issue of nomination and sponsorship of a candidate by a political party for any election is within the exclusive preserve of the political party and the courts have no jurisdiction to interfere therein.
On duty of courts to decide on all issues raised before them-
A court of law, particularly lower court, has a statutory duty to consider and decide on all issues raised and submitted to it for determination. This is so in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.
In the instant case, the trial court erred in law in not determining the merit of the originating summons after finding that it had no jurisdiction to entertain the suit in accordance with the preliminary objection.
On exception to the rule that all courts below the Supreme Court must pronounce on all issues before them-
Where the law is well settled on a point, it will constitute an exception to the rule that all courts below the Supreme Court must pronounce on all issues presented before them.
Where, head or tail, the decision of the court on the main claim will not be different from the determination of a preliminary objection, the determination of the most important issue of jurisdiction should put the other issues to rest.
In the instant case, looking at the appellant’s action on the merit, his claim before the trial court was not grantable as the suit was non-justifiable. It is not within the province or the court to select for a political party which candidate to nominate, field and sponsor for election.
On propriety of service on a State Liaison Office of a Political Party-
Service of court process on the State Office of a Political Party is akin or can be likened to service of court process on a Government Liaison Office. Such service is a proper service.
On when party is deemed to have waived his right-
A party is deemed to have waived his right if he takes further steps and allows the proceedings to go on as if the right or privilege never existed.
Such party is estopped by operation of law from raising the objection on appeal having waived and forfeited it at the trial court. In the instant case, the record of appeal contained a motion on notice for preliminary objection filed by the 1st and 2nd respondents at the trial court.
None of the seven (7) grounds of objection therein raised the issue of non-service of the originating summons personally on the 1st respondent.
The 1st and 2nd respondents participated fully in the proceedings at the trial court without complaining that the originating process was not served personally on the 1st respondent.
It was too late in the day for the 1st respondent to contend at the appeal stage that he had not been served with the originating process, having waived his right to insist on personal service by his active participation in the proceedings at the trial court.
Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]
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