IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 6TH DAY OF FEBRUARY, 2015
PEOPLES' DEMOCRATIC PARTY Appellant
1. EJIKE OGUEBEGO
2. HON. CHUKS OKOYE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. CHUKWUDI OKASIA.......... Respondents
This appeal is against the judgment of the Federal High Court, Abuja Division ("the Lower Court" for short) delivered on 5th December, 2014, in Suit No.FHC/ABJ/CS/854/2014. In the judgment the Lower Court granted all the reliefs sought by the plaintiffs (the 1st and 2nd respondents in this appeal).
In the originating summons taken out by the 1st and 2nd respondents at the Lower Court, they raised five questions for determination and sought the following reliefs.
"1. A declaration that the 1st defendant cannot legally and validly set up a caretaker committee or any other body whatsoever when the order of interlocutory injunction made by this Honourable court in Suit No.FHC/PH/CS/2013 now suit No.FHC/AWK/CS/247/2013 - EJIKE OGUEBEGO AND 2 OTHERS V. PEOPLES' DEMOCRATIC PARTY And 10 Others (which order and suit is also the subject of pending appeal before the Port Harcourt Judicial Division of the Court of Appeal in suit No.CA/PH/764/2013 - PEOPLES' DEMOCRATIC PARTY V. EJIKE OGUEBEGO AND 3 OTHERS) is still subsisting and subject of an appeal.
2. A declaration that the purported caretaker committee set up by the 1st defendant is an illegal and unconstitutional body when the tenure of the Ejike Oguebego led state executive committee of the Peoples' Democratic Party, Anambra State Chapter which will lapse on the 16th March, 2016 is still subsisting, functioning and duly recognized by the court and the 2nd defendant.
3. A declaration that the act, decision and any delegates list or nominated candidates that may emanate from the congress and primaries conducted by the caretaker committee set up by the 1st Defendant is illegal, invalid, unconstitutional and therefore null and void and of no effect whatsoever nor can the said list be used for any purpose for the conduct of the 2015 general election with regard to Peoples' Democratic Party, Anambra State Chapter.
4. An Order of this Honourable Court that the Defendants in this case are bound to recognize, deal with and accept the list of delegates and nominated candidates that may emanate from the congress and primaries conducted by the plaintiff in this case.
5. An order of perpetual injunction restraining the 1st defendant, its agents, servants, privies, assigns, official whatsoever name they may be called from forwarding, sending or submitting to the 2nd defendant any delegates list or nominated candidates that may emerge from the congresses or primaries conducted by the purported caretaker committee set up by the 1st defendant for the Peoples' Democratic Party, Anambra State Chapter except those that emanate from the plaintiffs' congresses and primaries election.
6. An order of perpetual injunction restraining the 2nd defendant, its agents, servants, privies, assigns, officials whatsoever name they may be called from accepting or receiving any delegates list or nominated candidates that may emerge from the congress or primaries conducted by the caretaker committee set up by the 1st defendant for the Peoples' Democratic Party, Anambra State Chapter except those that emanate from the plaintiffs.
7. An order of this Honourable court that the 1st defendant - Peoples' Democratic Party by the purported appointment of a caretaker committee to oversee, run the affairs and conduct election for the Peoples' Democratic Party, Anambra State Chapter is in flagrant disobedience and contempt of the order of this Honourable Court made by Hon. Justice S. E. Chukwu on the 10th day of October, 2014 and re- affirmed on the 24th day of October, 2014 and 14th day of November, 2014 in suit No. FHC/ABJ/CS/680/2014 - KEN EMEAKAYI V. PEOPLES' DEMOCRATIC PARTY AND 6 OTHERS.
8. An order of this Honourable Court disbanding, nullifying and setting aside the illegal caretaker committee set up by the 1st defendant to oversee, run the affairs and conduct the elections for the Peoples' Democratic party, Anambra State Chapter.
9. An order of this Honourable Court re- affirming the order of interlocutory injunction given in suit No. FHC/PH/CS/213/2013 (Now Suit No. FHC/AWK/CS/247/2013) - EJIKE OGUEBEGO AND 2 OTHERS V. PEOPLES' DEMOCRATIC PARTY AND 3 OTHERS pending the hearing and determination of the appeal before the Port- Harcourt Judicial Division of the Court of Appeal in Suit No. CA/PH/764/2013 - PEOPLES' DEMOCRATIC PARTY V. EJIKE OGUEBEGO AND 3 OTHERS.
10. And for such further order (s) as this Honourable Court may deem fit to make in the circumstances".
Being dissatisfied with the judgment of the Lower Court granting all the reliefs sought, the appellant filed two notices of appeal; one containing six grounds of appeal and filed on 8/12/2014 and the second filed on 12/12/2014 containing nine grounds of appeal. The extant notice of appeal is the one filed on 12/12/2014.
Out of the nine grounds of appeal, Chief Olusola Oke, counsel for the appellant, formulated four issues for the court's determination of the appeal. The issues are contained in the appellant's brief of argument filed on 16/12/2014 which was adopted at the hearing by Dr. Alex A. Izinyon (SAN). They are:-
(i) Whether the trial court was not in grave error and its decision a nullity when without jurisdiction, it entertained 1st and 2nd Respondent's claim and gave judgment against the appellant. (Distilled from grounds 1, 2 and 8).
(ii) Whether the trial court was not in serious error and its decision occasioning a miscarriage of justice when it gave judgment in favour of the Respondents without considering issues raised and argued by the appellant in defence (Distilled from ground 6).
(iii) Was the trial court not in grave error and its decision occasioning miscarriage of justice when without strong and credible evidence, it generally granted Respondent's reliefs, but particularly 3, 4 and 5 against the provisions of the 1999 Constitution (as amended) the Electoral Act 2010 (as amended) Appellant's Constitution and Electoral Guidelines (Distilled from grounds 3, 5, 7 and 9).
(iv) Whether the trial court was not in error and in violent breach of the doctrine of stari-decisis when it ignored and refused to be bound by the decisions of the Supreme Court in OKADIGBO V. EMEKA and OTHERS (2012) 18 NWLR (1331) PG, 55 and EMENIKE V. PDP (2012) 13 NWLR (1315) 556 as to which organ of the Appellant is empowered to conduct its primary elections (Distilled from ground 4).
Counsel for the 1st and 2nd respondents, Chief Chris Uche (SAN) in his brief of argument formulated four issues for determination of the appeal. They are:
1. Whether the learned trial judge rightly assumed jurisdiction over this case relating to the protection of the sanctity of the judicial process of which the appellant was alleged to be in contempt (Grounds 1, 2 and 8).
2. Whether the learned trial judge properly considered the defence of the appellant when he resolved the dispute in the case before him in favour of the 1st and 2nd respondents (Ground 6).
3. Whether there was sufficient evidence before the trial court to warrant the grant of the reliefs to the 1st and 2nd respondents (Grounds 3, 5, 7 and 9).
4. Whether the cases of OKADIGBO V. EMEKA and others (2012) 18 NWLR (1331) 55 and EMENIKE V. PDP (2012) 18 NWLR (1315) have any relevance to the real issues that arose for determination before the trial court (Ground 4).
Counsel for the 3rd and 4th respondents did not file briefs of argument.
Since the issues formulated by both counsel are substantially the same, I shall adopt the issues formulated by appellant's counsel for the determination of the appeal.
Appellant's counsel proffered the following arguments in respect of the issues formulated by him.
He submitted that the gravamen of the case of the 1st and 2nd respondents is a right to conduct appellant's ad-hoc delegate congress and primary elections for the nomination of candidates for the 2015 general elections and the corollary, ie; entitlements to have the list of ad-hoc delegates produced from their congress and the list of candidates forwarded to the 3rd respondent as the appellant's candidates for the election. It was his view that the issue of the caretaker committee was a smoke-screen.
Counsel further submitted that the trial court's jurisdiction vested by Section 251 (1) of the Constitution of Nigeria 1999 (as amended) does not extend to acts or decisions of a political party not being agent or agency of the Federal Government. Again, he went on, the additional jurisdiction conferred on the Lower Court by Section 87(9) of the Electoral Act is narrow and that the 1st and 2nd respondents did not bring themselves and their case within its narrow confines. To buttress his submission, counsel cited and relied on PDP V. SYLVA (2012) 13 NWLR (1316) 85, CPC V. LADO (2012) ALL FLWR (607) 623 and EMEKA V. OKADIGBO (2012) 18 NWLR (1331) 55, 85.
He lamented that the issue of abuse of court process raised at the Lower Court was glossed over by it. He referred to pages 386 - 389 of the record of appeal and Exhibit PDP 1 and submitted that it was an abuse of court process for the (1st and 2nd) respondents to seek to relitigate a matter that had earlier been settled between the same parties or their privies. It was his view that the decision in Exhibit PDP 1 until set aside on appeal remains binding on the 1st and 2nd respondents who are estopped from maintaining the action.
Counsel stated that the issue of propriety of the mode of commencement of the suit was raised at the Lower Court as the suit did not invite the court to interpret any instrument, enactment or provision of law. A ruling of a court, he added, is not an instrument or enactment. On this counsel cited and relied on RASC INT. V. AKIB (2006) 13 NWLR (997) 333. He further argued that by the nature of the claims and facts deposed to in the supporting affidavit, the proceedings were hostile and so originating summons should not have been employed to commence the action. He cited and relied on OSSAI v. WAKWAH (2006) ALL FWLR (303) 239 to support his submission. He noted that at the time of the judgment; (i) no primary election had been conducted (ii) no order against conduct of primary election was made and (iii) nullifying a primary that was yet to be conducted ran against Section 87 (10) of the Electoral Act.
Counsel set out, in numbered paragraphs, the case made out before the Lower Court and stated that the Lower Court gave no consideration to any of the issues; this he submitted, constituted a fundamental vice which vitiated and rendered a nullity the Lower Court's judgment.
ISSUES 3 AND 4 TOGETHER:
Counsel submitted that in granting relief 3, the Lower Court ignored the judgment as well as ruling of the High Court of the Federal Capital Territory, which nullified the election of the 1st and 2nd respondents' State Executive. Relief 4, he argued, was granted contrary to Section 87 (4) of the Electoral Act, Section 221 of the Constitution( of Nigeria) and paragraph 50 of the appellant's Electoral Guidelines as well as the cases of EMEKA V. OKADIGBO supra and EMENIKE V. PDP supra.
Counsel went on to argue that no clear and positive evidence was adduced to warrant the grant of reliefs 1 and 2. He also argued that the Lower Court did not follow previous decisions of the Supreme Court on the issue as to who has power to conduct party primaries. He finally urged the court to uphold the appeal and set aside the judgment of the Lower Court.
On his part, learned Senior Counsel for the 1st and 2nd respondents proffered the following arguments in respect of the issues:
He submitted that the trial court was right in holding that it had jurisdiction. It was his view that the suit was not a claim brought under Section 87 (9) of the Electoral Act to complain about the conduct of primary election. He then set out in numbered paragraphs some salient facts of the case and stated that the action was in the main to challenge the legality of the appointment of a caretaker committee by the appellant to take over the duties of the 1st respondent - led Anambra State Executive of the PDP in connection with congresses related to elections in the light of the suits and order of court commanding the appellant and 3rd respondent to deal with the said Executive Committee in all election matters. He added that when a person flouts a court order made against him, the court has the jurisdiction and duty to reverse all the steps taken to overreach the court's order. He cited and relied on OKOYA V. SANTILI (1991) 7 NWLR (206) 753 to support his submission.
Learned senior counsel continued by arguing that the appellant misconstructed the applicability of Section 251 of the Constitution in the instant case as the case relates to issues that concern the executive and/or administrative decision of INEC, an agency of the Federal Government and the reliefs affected the validity of such acts or decisions.
With regard to abuse of court process, he pointed out that the 1st and 2nd respondents were not parties to the case decided by Kekemeke, J and that a judgment only binds the parties thereto. Again, he went on, the appellant did not show that the issue in the case on appeal are the same as in the said case. He went on to argue that the suit was properly commenced by originating summons as the Lower Court had sufficient authentic documentary evidence which clearly made out the case of all the parties. It was his further view that the issue raised as to the powers to conduct primary was a fresh issue and therefore incompetent.
Learned senior counsel submitted that the Lower Court diligently and duly considered and determined the issues that properly arose for determination. He further submitted that the learned trial judge was not obliged to set out seriatim in his judgment every piece of argument presented by the appellant. Moreover, he stated, every judge is entitled to adopt his own style in writing his judgment. The case of SCC (NIG) LTD V. ANYA (2012) 9 NWLR (1305) 213 was cited by him to support his submission.
ISSUES 3 and 4
Arguing issues 3 and 4 together learned Senior Counsel submitted that there was sufficient evidence to grant all the reliefs sought by 1st and 2nd respondents. He was of the view that there was no feature of the case that warranted a consideration of the cases of OKADIGBO V. EMEKA supra and EMENIKE V. PDP supra. He referred to exhibits before the Lower Court and argued that they were backed by unchallenged affidavit evidence to the effect that the appellant acted in disobedience of the orders of the Federal High Court by setting up a Caretaker Committee to usurp the powers of the Anambra State Executive Committee as regards the congress for the primary election. He noted that the appellant did not appeal against finding of the Lower Court in this regard and so it could not complain about the grant of the reliefs.
He finally urged the court to dismiss the appeal.
I shall hereunder consider the issues in the manner argued by learned counsel.
At the Lower Court, the appellant filed a motion challenging the jurisdiction of that court on the grounds that:
(i) The appellant whose act the 1st and 2nd respondents questioned in the suit is not an agency of the Federal Government.
(ii) The suit was wrongly commenced by originating summons.
(iii) The suit concerned the internal affairs of a political party;
(iv) The suit was an abuse of process and
(v) Condition precedent to commencement of the suit was not fulfilled.
The Lower Court in its judgment dismissed the preliminary objection.
Jurisdiction is the authority that 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. It is circumscribed or controlled by the constitution or the statute creating the court or by a condition precedent created by a registration which must be fulfilled before the court can entertain the suit. See NDAEYO v. OGUNNAYA (1977) 1 SC 11 and ATTORNEY- GENERAL OF THE FEDERATION V. ABUBAKAR (2008) 10 NWLR (1112),133
Jurisdiction of court in respect of a case is determined by the claims of the plaintiff. In cases commenced by originating summons, the court is to examine the originating summons and the facts deposed to in the supporting affidavit relating to the issue of jurisdiction. See AHMED V. AHMED (2013) 15 NWLR (1377) 274, 331- 332 and ATTORNEY-GENERAL OF LAGOS STATE V. ATTORNEY GENERAL OF THE FEDERATTON (2014) 9 NWLR (1412) 217, 254.
Every court of record has judicial power inherent in it to ensure that its orders are not treated with levity and can reverse any step taken that is contrary to its orders. However, the court must first of all have jurisdiction over the subject matter of the suit before it can exercise any judicial powers. See SHA'ABAN V. SAMBO (2010) 19 NWLR (1226) 353, 362.
Section 251 (1) of the Constitution of Nigeria, 1999 (as amended) sets out a part of the jurisdiction of the Federal High Court. Apropos this case, Sub-section (1) (r) is relevant. It states,
"Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters - (r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies."
For the Federal High Court to assume jurisdiction under the above provision the following must be present;
(i) A party must be the Federal Government or any of its agencies or agent; and
(ii) The suit must be for a declaration or an injunction affecting the validity of an executive or administrative action or decision by such a body. See PEOPLES' DEMOCRATIC PARTY V. SYLVA (2012) 13 NWLR (1318) 85, ENTERPRISE BANK LTD V. AROSO (2014) 3 NWLR (1394) 256, 291 and AHMED V. AHMED supra. 335 and 348.
The court is to consider the facts of the case to see if they justify the application of the provision. In this case, only the 3rd respondent is an agency of the Federal Government. The appellant (PDP) has been held not to be an agency of the Federal Government. See PDP V. SYLVA supra. There is no deposition in the originating summons complaining against a decision or action of the 3rd respondent. Since the subject matter of the case (acts of the appellant) does not question the administrative action of the 3rd respondent, the Lower Court had no jurisdiction to entertain the matter under Section 251 (1) (r) of the Constitution of Nigeria 1999 (as amended). See AHMED V. AHMED supra 336 and 348. Reliefs number 4, 5, and 6 which touch on the 3rd respondent are ancillary reliefs which cannot cloth the Lower Court with jurisdiction. See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) 517 and PDP V. SYLVA supra 138.
It must be mentioned that courts have no jurisdiction to dabble into the domestic affairs of a political party as courts are not set up to answer political questions. See ONUOAHA v. OKAFOR (1983) 2 SCNLR 244.
Now Section 87 (9) of the Electoral Act 2010 (as amended) provides that,
"Notwithstanding the provisions of the 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 for redress".
It was argued by 1st and 2nd respondents that the suit was not a claim brought under Section 87 (9) of the Electoral Act, 2010 (as amended) to complain about the conduct of a primary election. A look at reliefs 3, 4, 5 and 6 in the originating summons shows that the conduct or anticipated conduct of primary election was a cornerstone of the reliefs or the case.
The question is given the facts of this case was the Lower Court clothed with the special jurisdiction set out above to entertain this case? The answer is "No" The jurisdiction given in Section 87 (9) of the Electoral Act is limited and narrow and can only be invoked where;
(i) There was a primary for selection or nomination of candidates of a political party for elections;
(ii) the plaintiff was an aspirant who participated in the contest at the primary; and
(iii) he complains that the party did not comply with a provision of the Electoral Act or the guidelines of the party in the process. See PDP V. SYLVA supra. EMEKA V. OKADIGBO (2012) 18 NWLR (1331) 55, EMENIKE V. PDP (2012) 13 NWLR (1315) 556, ARDO V. NYAKO (2014) 10 NWLR (1416) 591, 662 - 663 and UKACHUKWU V. PDP (2014) 17 NWLR (1435) 134.
The 1st and 2nd respondents did not bring themselves and their case under those elements. There was no primary to select a candidate. They were not contestants in any primary and there was no complaint of failure by the appellant to comply with any provision of the Electoral Act or the guidelines of the party. The Lower Court therefore had no jurisdiction to adjudicate on the matter particularly reliefs number 3, 4, 5, and 6.
Another point which the Lower Court tersely overruled was that the suit was wrongly commenced by originating summons. Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules provides that,
"Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the persons interested.
Originating summons is not to be used where there are disputes on material facts or the likelihood of such disputes. See NBN LTD v. ALAKIJA (1978) 8 - 10 SC 79. In the instant case, it can be seen that issues of facts relating to the validity or tenure of the 1st respondent - led Executive Committee, holding or proposed holding of state congress and primaries and by who etc. would crop up for determination. Thus the proceedings were hostile or potentially hostile and ought not to have been commenced by originating summons. See OSSAI v. WAKWAH (2006) EZEAKA V. OKONNKWO (2012) 4 NWLR (1291) 527, 533, OILLEY v. TUNJI (2013) 10 NWLR (1362) 275, 328 and ASOGWA V. PDP (2013) 1 NWLR (1353) 207, 258.
It was also contended that the suit was an abuse of process of court.
In the case of SARAKI v. KOTOYE (1992) 9 NWLR (264) 156 the Supreme Court stated that,
"The concept of abuse of judicial process is imprecise.
It involves circumstances and situations of infinite variety and conditions. Its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It... may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice."
In Exhibit PDP 1 (at pages 398 - 400 of vol. 1 of the record) in a suit between one EMMA MBAMALU and the PDP, KEKEMEKE J, of the High Court of the Federal Capital Territory in Motion No. FCT/HC/CV.2631/12, inter alia, nullified the Anambra State Congress of the PDP held on 17/3/2012. See also Exhibit A at pages 738 - 779 of vol. 2 of the record. In Exhibit B (at pages 780 - 787 of vol. 2) attached to the counter - affidavit of the 4th respondent, the application of the 1st respondent and another person acting "for and on behalf of other members of the State Executive of the Peoples' Democratic Party (PDP) Anambra State") for leave to appeal against the decision in Exhibit PDP1 was dismissed. In the penultimate paragraph of the ruling, the court stated,
"I agree ..... that the applicants do not exist in the eyes of the law. The election was a nullity. It follows that nothing took place and the applicant did not emerge."
The case of the 1st and 2nd respondents is founded on the alleged election that was purportedly conducted in the nullified congress (see par. 3 (b) and (c) of the affidavit in support of the originating summons (page 9 of vol. 1 of the record). It was argued that the 1st and 2nd respondents were not parties to the case which resulted in Exhibit PDP 1. It is my view that the judgment was a judgment in rem as it determined the status of the Anambra PDP State Congress of 17/3/2012 and the purported State Executive Committee flowing therefrom. The effect is that it is conclusive against the whole world including the 1st and 2nd respondents. It stops everyone whether party to it or not from asserting a position different from what it decided. See OGBORU V. UDUAGHAN (2011) 17 NWLR (1272) 727, 764, where Adekeye, JSC, stated that,
"The feature of judgment in rem is that it binds all persons whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or thing, or the right or title to property litigated before a competent court. It is indeed conclusive against the entire world in whatever it settles as to the status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the court has by such judgment declared or made it." See also IDRIS V. ANPP (2008) 8 NWLR (1088) 1, 120.
Thus when the 1st and 2nd respondents took out the originating summons in this case based on an assertion contrary to the clear decision in Exhibit PDP 1, and Exhibit B which are still in force not having been set aside or reversed on appeal, it was improperly using the judicial process to the irritation and annoyance of their opponent as well as interfering with the due administration of justice. In the case of NIGERGATE LIMITED V. NIGER STATE GOVERNMENT (2008) 13 NWLR (1103) 111, 141, it was held that it is an abuse of process for a party to seek to relitigate an issue previously litigated and decided upon. It is my view therefore that the suit the subject of this appeal was an abuse of judicial process.
I therefore resolve issue 1 in favour of the appellants.
At the Lower Court, the issues raised by the appellant included;
(i) the body with authority to conduct congress and primary election and to send list of nominated candidates to the 3rd respondent;
(ii) The effect of Exhibit PDP 1 on the case.
The issues in the motion challenging the jurisdiction of the court have already been set out in my treatment of issue 1. I need not repeat them here.
In its judgment, the Lower Court did not give consideration to the issues and it gave a terse answer to the issues of jurisdiction as follows:
"I have digested the preliminary objections of the Learned Defendant Counsel as to the jurisdiction of this court to entertain this matter. I hold that I have jurisdiction to entertain the same and I adopt all my reasoning in the unreported cases of EMEAKAYI V. PDP and 3 OTHERS and GURIN V. PDP and 3 OTHERS."
In the case of OJUGBUA V. NNUBIA (1972) 1 ALL NLR (2) 226, 231 - 232 quoted in SOUTH TRUST BANK V. PHERAZY GAS LTD. (2014) 16 NWLR (1432) 1, 28, it was held that the judgment of a court must demonstrate a full and dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise. A judge is entitled to adopt his own style in writing his judgment but whatever style he adopts must reflect these time honoured requirements. With all due respect to the Lower Court, its judgment did not meet these requirements. This in my view resulted in a miscarriage of justice. See OVIENWO V. WOKO (2011) ALL FWLR (587) 596, 612.
I therefore resolve issue 2 in appellant's favour.
ISSUES 3 And 4
It is established beyond per-adventure that it is the National Executive Committee of the appellant which has the power to conduct a valid primary for the nomination or selection of candidates for a general election. See EMEKA V.OKADIGBO supra and EMENIKE V. PDP supra. Reliefs 3, 5 and 6 were predicated on the possibility of congress and primary being conducted by the caretaker committee set up by the appellant. There was no evidence to back this up. Exhibit D at page 32 of Vol.1 of the record (the letter of PDP appointing the South East Zonal Executive to oversee the affairs of the Anambra State Chapter "Until congresses are held") does not suggest that the congresses were to be held by the South East Zonal Executive. Granting the same was therefore speculative and courts are not permitted to descend into the realm of speculation. Again, it ran contrary to the decisions of the Supreme Court stated above. The grant of relief 4 equally suffers the same fate as it conferred on the 1st and 2nd respondents (assuming their State Executive Committee to be authentic which is not so) the power to conduct congress and primaries and submit list of candidates to the 3rd respondents which they do not possess in law.
The order of Nganjiwa, J. in Suit No. FHC/PH/CS/213/213 at pages 22 - 24 of vol. 1 of the record did not take away the power of the National Executive Committee to conduct primaries.
I therefore resolve issues 3 and 4 in favour of the appellant.
On the whole the appeal has merit and is accordingly allowed by me. The Lower Court's judgment delivered on 5/12/2014 in Suit No.FHC/ABJ/CS/854/2014 is hereby set aside. In its stead, I hereby strike out the 1st and 2nd respondents' action. The parties shall bear their costs.
ABUBAKAR JECA ABDUL-KADIR, J.C.A., CON:
I have read the draft of the judgment just delivered by my learned brother, EKANEM, JCA. I agree entirely with his reasoning and the conclusion reached that the appeal is highly meritorious. I adopt same in allowing the appeal, accordingly I allow the appeal. The Lower Court's judgment delivered on 5/12/2014 in Suit No: FHC/ABJ/CS/854/2014 is hereby set aside. In its stead, I hereby strike out, the 1st and 2nd Respondents' action. I abide by the order as to costs as contained in the judgment.
MOHAMMED MUSTAPHA, J.C.A.:
I read in draft form the judgment just delivered by my learned brother, Joseph Ekanem, JCA.
For the same reasons advanced by my learned brother, I agree that the appeal has merit, I too allow same and set aside the judgment of the Lower Court in Suit No:FHC/ABJ/CS/854/2014, which was delivered on 5/12/2014.
Parties should bear their costs.
Dr. Alex Izinyon (SAN) (With him, Chief Olusola Oke, Mrs Hannatu Abdulrahman, F. O. Izinyon II, Esq;) For Appellant
Solomon Umoh (SAN) (holding the brief of Chief Chris Uche (SAN) (With him, Gordy Uche, Esq) - for 1st and 2nd respondents.
Eyitayo Fatogun, Esq: (With him, Miss Tinuke Osoba) - for 3rd respondent.
Arthur Obi Okafor (SAN) (With him, Mahmud A. Magaji (SAN) Messrs F. I. Aniukwu and V. Ottaokpukpu) for 4th respondent. - For Respondent