Aguma v. A.P.C (2021)

Agumav.A.P.C.

RT. HONOURABLE IGO AGUMA

V.

1.ALL PROGRESSIVES CONGRESS

2.MR. ISAAC ABBOT OGBOBULA

(Chairman, Caretaker Committee of All ProgressivesCongress, Rivers State)

3.COMRADE ADAMS OSHIOMHOLE

SUPREME COURT OF NIGERIA

SC/CV/17/2021

SC/CV/51/2021

AMINA ADAMU AUGIE, J.S.C. (Presided)

ADAMU JAURO, J.S.C. (Read the Leading Judgment)

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.

TIJJANI ABUBAKAR, J.S.C.

EMMANUEL AKOMAYE AGIM, J.S.C.

FRIDAY, 5TH MARCH 2021

ACTION – Commencement of action – Condition precedent thereto- Need to comply therewith.

ACTION – Commencement of action – Originating summons -Verifying affidavit – Whether must accompany originatingsummons – Order 3 rule 8, High Court of Rivers State (CivilProcedure) Rules, 2010 – Nature of affidavit required.

ACTION – Limitation of action – “Statute-barred” – Meaning of.

ACTION – Limitation of action – Whether action statute-barred -Determination of – What court considers.

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ACTION – Locus standi to sue – What determines – What party mustshow.

APPEAL – Preliminary objection to an appeal – Raising of – Dutyon respondent – Order 2 rule 9(1), Supreme Court Rules, 1999(as amended) – Failure of respondent to comply therewith -Discretion of court.

ASSOCIATION – Voluntary association – Internal affairs of -Doctrine of ultra vires – Whether applies thereto.

CONSTITUTIONAL LAW – “Pre-election” in section 285(14),1999 Constitution – Meaning of.

CONSTITUTIONAL LAW – Pre-election matter – What is – Section285(14), 1999 Constitution – Nature of.

CONSTITUTIONAL LAW – Provision of Constitution – Constructionof – Principles guiding.

COURT – Competence of court – Determinants of.

ELECTION – “Pre-election” in section 285(14), 1999 Constitution- Meaning of.

ELECTION – Pre-election matter – Internal affairs of politicalparty – Whether constitute pre-election matters.

ELECTION – Pre-election matter – What is – Section 285(14), 1999Constitution – Nature of.

INTERPRETATION OF STATUTES – Clear and unambiguouswords of Constitution or statute – How construed.

INTERPRETATION OF STATUTES – Provision of Constitution -Construction of – Principles guiding.

LIMITATION OF ACTION – Limitation of action – Whether actionstatute-barred – Determination of – What court considers.

LIMITATION OF ACTION – “Statute-barred” – Meaning of.

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LIMITATION LAW – Limitation of action – Whether action statute-barred – Determination of – What court considers.

LOCUS STANDI – Locus standi to sue – What determines – Whatparty must show.

POLITICAL PARTY – Constitution of political party – Bindingnessof on party and its member – Action taken in non-compliancetherewith – Validity of.

POLITICAL PARTY – Pre-election matter – Internal affairs ofpolitical party – Whether constitute pre-election matters.

PRACTICE AND PROCEDURE – Appeal – Preliminary objectionto an appeal – Raising of – Duty on respondent – Order 2 rule9(1), Supreme Court Rules, 1999 (as amended) – Failure ofrespondent to comply therewith – Discretion of court.

PRACTICE AND PROCEDURE – Commencement of action -Condition precedent thereto – Need to comply therewith.

PRACTICE AND PROCEDURE – Commencement of action -Originating summons – Verifying affidavit – Whether mustaccompany originating summons – Order 3 rule 8, High Courtof Rivers State (Civil Procedure) Rules, 2010 – Nature ofaffidavit required.

PRACTICE AND PROCEDURE – Competence of court -Determinants of.

PRACTICE AND PROCEDURE – Limitation of action – Whetheraction statute-barred – Determination of – What courtconsiders.

PRACTICE AND PROCEDURE – Locus standi to sue – Whatdetermines – What party must show.

PRINCIPLES OF INTERPRETATION – Clear and unambiguouswords of Constitution or statute – How construed.

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PRINCIPLES OF INTERPRETATION – Provision of Constitution -Construction of – Principles guiding.

STATUTE – Clear and unambiguous words of Constitution orstatute – How construed.

STATUTE – Provision of Constitution – Construction of – Principlesguiding.

WORDS AND PHRASES – “Pre-election” in section 285(14), 1999Constitution – Meaning of.

WORDS AND PHRASES – “Statute-barred” – Meaning of.

Issues:

1.Whether the Court of Appeal was right in holding thatthe suit was not a pre-election matter.

2.Whether the appellant’s suit was commenced by dueprocess of law.

3.Whether the Court of Appeal was right in its decisionthat the appellant did not show that he had any vestedright to sue the respondents.

Facts:

The National Working Committee of the 1st respondentdissolved the entire executive structure of the party at all levels inRivers State. It went ahead to set up a Caretaker Committee headedby the 2nd respondent to run the affairs of the party in the State.

Upon the constitution and inauguration of the CaretakerCommittee, the appellant instituted an action against the respondentsat the High Court of Rivers State, Port Harcourt via an originatingsummons seeking inter alia a declaration that by virtue of articles12(1)(v) and (8), 8(xxx) and 13(4)(xvi) of the 1st respondent’sconstitution, the appellant was a member of the 1st respondent’sNational Convention and as such a statutory member of its StateExecutive Committee in Rivers State; and a declaration that theexclusion of the appellant and all other statutory members of theState Executive Committee from the Caretaker Committee set upby the 2nd and 3rd respondents in Rivers State was ultra vires theconstitution and was therefore null and void.

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In the affidavit in support of the originating summons, theappellant averred that he was a bona fide card-carrying member ofthe 1st respondent since 2014 and he had served in various officesin furtherance of the 1st respondent’s aims and objectives; that hewas elected into the House of Representatives in the 2003 and in2007; that articles 12(1)(v), 8(xxx) and 9(vi) of the 1st respondent’sconstitution provides that serving and past members of theNational Assembly who are members of the party are members ofthe National Convention and are statutory members of the StateExecutive Committee as well as the State Caucus.

He further averred that sometime in 2018, the 1st respondentheld its congresses and elected its executive members in the State;that following the election, some members of the party who wereaggrieved successfully approached the court for the nullification ofthe congress and the election resulting therefrom; and that the 1strespondent’s National Working Committee relying on its powersas provided under article 13(4)(xvi) of the party’s constitution,appointed a five-member Caretaker Committee to pilot the affairsof the party’s Rivers State Chapter thereby suspending all otherexecutive members, both elected and statutory.

The appellant claimed that his position as a statutory memberof the State Executive Committee was constitutionally guaranteedand could not be suspended by the National Working Committeein the manner they did; that the National Working Committee had,amongst other functions, the power to set up a Caretaker Committeein the event of a lacuna in the State Executive Committee of theparty but the power was to be exercised in furtherance to the party’sconstitution; that the National Working Committee erroneouslyappointed a Caretaker Committee to replace the State ExecutiveCommittee of the party in Rivers State without regard to those whowere statutory members; that the National Working Committeeacted in breach of the party’s constitution; and that the appointmentand inauguration of the Caretaker Committee by the NationalWorking Committee was not done in furtherance of the party’sconstitution.

At the conclusion of hearing, the trial court in its judgmentgranted all the reliefs sought by the appellant.

Aggrieved by the judgment of the trial court, the 1st respondentappealed to the Court of Appeal. The Court of Appeal allowed theappeal and set aside the judgment of the trial court.

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Dissatisfied, the appellant appealed to the Supreme Court.

In determining the appeal, the Supreme Court consideredthe provisions of section 285(14)(a) – of the Constitution ofthe Federal Republic of Nigeria, 1999 (as amended) and Order 2rule 9(1) of the Supreme Court Rules, 1999 (as amended). Theyrespectively state thus:

Section 285(14)(a) – of the Constitution of the Federal Republicof Nigeria, 1999 (as amended):

“285(14)For the purpose of this section, ‘pre-election matter’means any suit by –

an aspirant who complains that any of theprovisions of the Electoral Act or any Act of theNational Assembly regulating the conduct ofprimaries of political parties and the provisionsof the guidelines of a political party for conductof party primaries has not been complied withby a political party in respect of the selection or(a)nomination of candidates for an election;

an aspirant challenging the actions, decisions oractivities of the Independent National ElectoralCommission in respect of his participation in anelection or who complains that the provisionsof the Electoral Act or any Act of the NationalAssembly regulating elections in Nigeria hasnot been complied with by the IndependentNational Electoral Commission in respect ofthe selection or nomination of candidates and(b)participation in an election; and

a political party challenging the actions,decisions or activities of the IndependentNational Electoral Commission disqualifyingits candidate from participating in an electionor a complaint that the provisions of theElectoral Act or any other applicable law hasnot been complied with by the IndependentNational Electoral Commission in respectof the nomination of candidates of politicalparties for an election, timetable for an election,registration of voters and other activities of theCommission in respect of preparation for an(c)election.”

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Order 2 rule 9(1) of the Supreme Court Rules, 1999 (as amended):

“9(1) A respondent intending to rely on a preliminaryobjection to the hearing of the appeal shall give theappellant three clear days notice thereof beforehearing, setting out the grounds of objection and shallfile such notice together with ten copies thereof withthe Registrar within the same time.”

Held (Unanimously dismissing the appeal):

1.On Meaning of “statute-barred” –

The term “statute-barred” simply means barred bya provision of the statute. It is usually as to time,that is, the bar gives a time limit during whichcertain actions or steps should be taken and one isbarred from taking action after the period specifiedin the statute. Any action taken after or outsidethe specified limit or period is of no avail and hasno valid effect. The bar can be lifted or the limitextended only if the statute allows it to be done.Where there was no such extension, the actioncarried out will be invalid and the court will treatit as such. The purpose of this is to bring an endto litigation so that persons with good causes canpursue them on time before human memory startsto fade or witnesses become untraceable. [Araka v.Ejeagwu (2000) 15 NWLR (Pt. 692) 684; INEC v.Ogbadibo Local Govt. (2016) 3 NWLR (Pt. 1498)167; Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137referred to.] (P. 388, paras. E-H)

2.On What court considers in determination of whetheraction statute-barred –

In order to determine whether a case is statute-barred, it is the claimant’s originating processes,usually the writ of summons and the statementof claim, that are considered. In the instant case,the action at the trial court was commencedby originating summons. Therefore, in order

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to determine whether the Court of Appeal hadjurisdiction to hear and determine the appeal, theprocesses to consider were only the originatingsummons and affidavit in support of originatingsummons vis-à-vis the relevant limitation law. [Egbev. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Williams v.Williams (2008) 10 NWLR (Pt. 1095) 364; Aremo IIv. Adekanye (2004) 13 NWLR (Pt. 891) 572 referredto.] (P. 389, paras. A-C)

3.On What is pre-election matter –

By virtue of section 285(14)(a), and of the1999 Constitution (as amended), for the purpose ofthe section, “pre-election matter” means any suitby –

an aspirant who complains that any of theprovisions of the Electoral Act or any Actof the National Assembly regulating theconduct of primaries of political parties andthe provisions of the guidelines of a politicalparty for conduct of party primaries hasnot been complied with by a political partyin respect of the selection or nomination of(a)candidates for an election;

an aspirant challenging the actions, decisionsor activities of the Independent NationalElectoral Commission in respect of hisparticipation in an election or who complainsthat the provisions of the Electoral Act orany Act of the National Assembly regulatingelections in Nigeria has not been compliedwith by the Commission in respect of theselection or nomination of candidates and(b)participation in an election; and

a political party challenging the actions,decisions or activities of the IndependentNational Electoral Commission disqualifyingits candidate from participating in an election(c)or a complaint that the provisions of the

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Electoral Act or any other applicable law hasnot been complied with by the Commissionin respect of the nomination of candidatesof political parties for an election, timetablefor an election, registration of voters andother activities of the Commission in respectof preparation for an election.

(Pp. 392-393, paras. D-C)

Per JAURO, J.S.C. at page 394, paras. D-H:

“After having carefully examined theprovisions of section 285 (a – c) of theConstitution (supra), the following points arecrystal clear as held by the court below atpages 823 – 824 of the record of appeal:

1.The appellant is not claiming anyreliefs touching or pertaining to beingan aspirant complaining that theprovisions of Electoral Act or Any Actregulating the conduct of primariesof the appellant and the provisions ofappellant’s Guidelines for conduct ofthe appellant primaries have not beencomplied with by the appellant inrespect of the selection or nominationof candidates for an election.

2.The appellant is not claiming to becontesting any election but trying tovindicate his right (if any) as a memberof National Convention of the Party.

I am also of the view, as rightly held bythe court below that the appointment ofcaretaker committee to run the affairs ofa 1 st respondent is not by election and is notbased on contest or aspiration of an aspirantas envisaged under section 156 of the ElectoralAct 2010 as amended. The scenario createdby the reliefs sought in this suit cannot byany stretch of imagination be covered by themeaning assigned to pre-election matter in

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section 285(14) (a – c) of the CFRN 1999 asamended.”

Per AUGIE, J.S.C. at page 404, paras. C-E:

“So, section 285(14) – of the 1999Constitution (as amended), which defineswhat a pre-election matter is, speaks ofaspirants, who complain about the conductof Party primaries in respect of the ‘selectionor nomination of candidates for an election’;aspirants, who challenge ‘actions, decisionsor activities’ of INEC, in respect of theirparticipation in an election; and political partiesthat challenge ‘actions, decisions or activities’ ofINEC, ‘in respect of nominations of candidatesfor an election, timetable for an election,registration of voters and other activities inrespect of preparation for an election’.

In this case, the appellant is not claimingany reliefs touching or pertaining to be anaspirant complaining about the conductof any primaries or challenging actions,decisions or activities of INEC.

In very clear terms, the Court of Appeal wasdefinitely right to hold that the suit filed atthe trial court is not a pre-election matter.”

Per AGIM, J.S.C. at page 406, paras. A-D:

“In view of the clear provisions of section285(14) of the 1999 constitution the suit at thetrial court that led to this appeal is not a pre-election matter because it was brought by amember of a political party claiming that thepolitical party acted ultra vires its constitutionby setting up a Caretaker State ExecutiveCommittee to function as the Party’s RiverState Executive Committee, which CaretakerCommittee excluded all statutory membersof the State Executive Committee includinghimself. The claimant is not an aspirant in aprimary election of the party. The action is not

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complaining that the selection or nominationof the party’s candidate for a general electiondid not comply with the Electoral Act orits Electoral Guidelines. The action is notchallenging the action of INEC in respectof the selection or nomination of the party’scandidate for a general election. The action isnot brought by a political party challengingthe action of INEC disqualifying its candidatefrom participating in a general election orthat the decision or action of INEC in respectof nomination of its candidate for an election,timetable for an election, registration ofvoters and other activities of INEC in respectof an impending election is contrary to theElectoral Act or other laws.”

4.On What is pre-election matter –

Pre-election matters are, as the name implies,matters that occurred before the election proper.They are live issues that must be heard and ajudgment delivered. They are litigations arisingfrom party primaries, for example, substitutionof candidates. Complaints about the conduct ofprimaries are pre-election matters. In the instantcase, the suit could not under any guise or by anystretch of imagination be said to be a pre-electionmatter. The suit was not a pre-election matterwithin the interpretation of section 285(14) of the1999 Constitution (as amended). [A.P.C. v. Lere(2020) I NWLR (Pt. 1705) 254; A.P.C. v. Uduji (2020)2 NWLR (Pt. 1709) 541 referred to.] (P. 395, paras.A-E)

5.On Meaning of “pre-election” in section 285(14) of1999 Constitution –

Where a particular word or phrase is defined in astatute, its meaning would be as so defined in the

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statute. No other meaning can be given to the wordor phrase outside its definition by the statute. Wherea word or phrase has been defined in an enactmentthat meaning must be restricted to the wordsso defined in the statute, the definition governs.Therefore, the word “pre-election” having beendefined by section 285(14) of the 1999 Constitution(as amended), no other meaning can be given to it,except the one given to it by its definition in section285(14) of the 1999 Constitution. The use of thelimiting word “means” in section 285(14) of the1999 Constitution (as amended) in defining a pre-election matter further limits its meaning to onlythat listed therein. [Anyah v. Iyayi (1993) 7 NWLR(Pt. 305) 290 referred to.] (P. 405, paras. E-G)

6.On Whether internal affairs of political party constitutepre-election matters –

By expressly listing the three types of mattersthat constitute or mean a pre-election matter,section 285(14)(a) to of the 1999 Constitution(as amended) clearly excludes the matters notmentioned therein. Where a statute expressly liststhe items to which it applies, it excludes thosenot listed therein. The interpretative rule is oftenexpressed in the maxim: the express mention ofcertain things excludes those not mentioned. So, ifsection 285(14) of the Constitution had intended theactions concerning the election and appointmentsof persons to political party offices, membership ofa political party, setting up committees or organsof a political party and its general internal affairsto constitute pre-election matters, it would havestated so. Since such actions are not listed in section285(14) as pre-election matters, they are not. In theinstant case, the suit leading to the appeal was not apre-election matter. (P. 406, paras. E-G)

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7.On Construction of clear and unambiguous words ofConstitution or statute –

In the interpretation of the statutes, where thewords used are clear and free from ambiguity,they should be accorded their natural meaningwithout any embellishments. Where the wordsof the legislature are clear, there is no room forapplying any of the principles of interpretation.Where the words used in expressing the intentionof the legislature in a provision are plain andunambiguous, in interpreting the Constitution,the court must endeavour to give the words usedin the Constitution or statute its ordinary meaningunless such interpretation will lead to absurdity orinconsistency with the rest of the legislation. (P. 394,paras. B-D)

8.On Principles guiding construction of provision ofConstitution –

In interpreting a provision of the Constitution, theprimary function of the court is to search for theintention of the lawmaker. Where a constitutionalprovision is clear and unambiguous, the court mustgive the words their ordinary meaning unless itwill lead to absurdity and inconsistency with theprovisions of the Constitution as a whole. The truemeaning of the words used and the intention of thelegislature in a Constitution can be best properlyunderstood if the Constitution is considered as awhole. It is single document and every part of itmust be considered as far as relevant in order toget the true meaning and intent of any particularportion of the enactment. Also, a Constitution mustbe interpreted and applied liberally. It must alwaysbe construed in such a way that it protects whatit sets out to protect or guides what it sets out toguide. By necessity, a constitutional provision mustbe interpreted broadly. [Ladoja v. INEC (2007) 12NWLR (Pt. 1047) 115; Dapianlong v. Dariye (2007)

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8 NWLR (Pt. 1036) 332; Tinubu v. I.M.B. SecuritiesPlc (2001) 16 NWLR (Pt. 740) 670 referred to.] (Pp.393-394, paras. E-B)

9.On Competence of court –

A court is competent when

it is properly constituted as regards numbersand qualifications of the members of thebench and no member is disqualified for one(a)reason or another; and

the subject matter of the case is withinits jurisdiction, and there is no feature inthe case which prevents the court from(b)exercising its jurisdiction; and

the case comes before the court initiatedby due process of law, and upon fulfillmentof any condition precedent to the exerciseof jurisdiction. Any defect in competenceis fatal, for the proceedings are a nullityhowever well conducted and decided: the(c)defect is extrinsic to the adjudication.

[Madukolu v. Nkemdilim (1962) 2 SCNLR 341referred to.] (Pp. 395-396, paras. G-C)

10.On Whether verifying affidavit must accompanyoriginating summons in commencement of action –

By virtue of Order 3 rule 8 High Court of RiversState (Civil Procedure) Rules, 2010, an originatingsummons shall be in the Forms 3, 4, or 5 to theRules, with such variations as circumstances mayrequire. It shall be prepared by the applicant orhis legal practitioner, and shall be signed, stampedand filed in the registry and when so signed,stamped and filed shall be deemed to be issued. Anoriginating summons shall be accompanied by anaffidavit setting out the facts relied upon, all theexhibits to be relied upon and a written addressin support of the application. The person filing theoriginating summons shall leave at the registry

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sufficient number of copies thereof together withthe documents in Order 3 rule 8(2) for service onthe respondent or respondents. However, by Order3 rule 8(2) of the Rules, the person has no duty tofile a verifying affidavit alongside his originatingsummons. The only affidavit required of him is anaffidavit setting out the facts relied upon. In theinstant case, the Court of Appeal found that theappellant did not file an affidavit of verification. Theappellant had no duty to do so by Order 3 rule 8(2)of the High Court of Rivers State (Civil Procedure)Rules, 2010. By the Rules, the appellant was notrequired or mandated to file a verifying affidavitalongside his originating summons. The onlyaffidavit required of him was an affidavit settingout the facts relied upon. The appellant fulfilled thecondition. (Pp. 396-397, paras. E-B; D-G)

11.On Need to comply with condition precedent tocommencement of action –

Where a statute or rule of court prescribes a conditionprecedent to the assumption of jurisdiction, thecondition precedent must be fulfilled before thereis jurisdiction. Therefore, a case must come beforethe court only when initiated by due process of lawand upon fulfilment of any condition precedentto the exercise of jurisdiction. In the instant case,there was no credible evidence to establish thefact that the appellant exhausted all the internaladministrative remedies provided for under article21(B) of the 1 st respondent’s constitution, exhibit“C” annexed to the appellant’s affidavit in supportof the originating summons. Consequently, the trialcourt lacked the requisite jurisdiction to hear anddetermine the appellant’s suit. In other words, thetrial court lacked the jurisdictional competence toentertain the appellant’s suit by reason of his failureto exhaust the internal administrative remediesprovided under the 1 st respondent’s constitution.

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[Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt. 627)459; D.E.N.R. Ltd. v. Trans Int. Bank Ltd. (2008) 18NWLR (Pt. 1119) 388 referred to.] (Pp. 398, paras.A-B; 401, para. A)

12.On What party must show to have locus standi to sue –

A person has locus standi to sue in an action if heis able to show to the satisfaction of the court thathis civil rights and obligations have been or are indanger of being infringed. For a person to have thelegal capacity to sue over a matter, he must showsufficient interest in the subject matter of litigationand that will give him the access to instituteproceedings in a court of law. The pleadings ofthe party seeking to sue must disclose a cause ofaction vested in the plaintiff and the plaintiff’srights and obligations or interest which have beenviolated before he can be vested with locus standito sue. In the instant case, the Court of Appealwas right in holding that the appellant was notautomatically entitled to be made a member of theCaretaker Committee constituted for the RiversState Chapter of the 1 st respondent. The appellanthad no locus standi to have instituted the action.The facts deposed in the affidavit in support of theoriginating summons did not constitute reasonablecause of action against the 1 st respondent and theyshowed that the appellant had no standi to sue.[Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt.1672) 422; Disu v. Ajilowura (2006) 14 NWLR (Pt.1000) 783; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Barbus & Co. (Nig.) Ltd. v. Okafor-Udeji(2018) 11 NWLR (Pt. 1630) 298 referred to.] (Pp.401-402, paras. E-B; F-G)

Per AGIM, J.S.C. at pages 406-407, paras. G-D:

“The claim by the appellant that the 1 strespondent violated its own constitution cannotvest him with the locus standi to institute anaction in respect of the claim. He has no right ofaction against his political party concerning its

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decisions or actions on its internal affairs. Thisis because the Political Party is a voluntaryorganization or association. As a member ofthe party, he has no right of action against hispolitical party for breach of its constitutionconcerning the internal affairs of the party.He has no personal right to be a memberof the executive or committee or caretakercommittee of the Rivers State Chapter of the1 st respondent. The right to determine whoshould lead or manage the said River StateChapter of the 1 st respondent as a memberof the State Executive Committee belongsto the 1 st respondent which right it exercisesthrough a majority of its members through itscongresses organized by the NWC or directlyby the NWC in the case of appointment of acaretaker committee. The appellant has notalleged that his contractual right or any ofhis personal right has been breached by theaction of the 1 st respondent or that the actionor decision of the 1 st respondent involvesome imputation of a crime against him. SeeAbubakar & Ors. v. Smith & Ors. (1973) 6 SC 31and Ufomba v. INEC & Ors. (2017) 13 NWLR(Pt. 1582) 175; (2017) LPELR – 42079 (SC).”

13.On Bindingness of constitution of political party onparty and its member –

A political party is bound by its constitution andany action taken which is not in conformity withthe constitution of such political party is null andvoid and of no effect. The member of a politicalparty is bound by the party’s constitution andguidelines. He cannot circumvent any of them tohis own benefit. In the instant case, the appellant inthe affidavit in support of his originating summonsdeposed to the fact that he had been a bona fide card -carrying member of the 1 st respondent since 2014

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and had served in various offices in furtheranceof the aims and objectives of the 1 st respondent.The implication was that he is bound by the 1 strespondent’s constitution being a statutory memberof the 1 st respondent. [Emenike v. P.D.P. (2012) 12NWLR (Pt. 1315) 556 referred to.] (P. 398, paras.B-G)

14.On Whether doctrine of ultra vires applies to internalaffairs of voluntary association –

The doctrine of ultra vires has no application inthe internal affairs of a voluntary association ofindividuals. A member of a voluntary organisationcannot sue for breach of the internal constitutionand regulations of the organisation in the internalaffairs of the organisation. In the instant case, thedecision of the 1 st respondent’s National WorkingCommittee appointing its River State CaretakerExecutive Committee could not be challengedin court as being contrary to the 1 st respondent’sconstitution. The respondents did not even showthat the appointment of the committee was inviolation of the 1 st respondent’s constitution andrules. (P. 407, paras. D-G)

15.On Duty on respondent raising preliminary objectionto an appeal –

By virtue of Order 2 rule 9(1) of the Supreme CourtRules,1999 (as amended), a respondent intendingto rely on a preliminary objection to the hearingof an appeal shall give the appellant three cleardays’ notice thereof before hearing, setting outthe grounds of objection and shall file such noticetogether with ten copies thereof with the registrarwithin the same time. The essence of the directionis to ensure an equal playing ground betweenthe parties. This is to prevent a respondent whointends to rely upon a preliminary objection to thehearing of an appeal from taking the appellant bysurprise. The three clear days stated in the Rules is

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to afford the appellant reasonable time to preparehis arguments in opposition to the objection filedchallenging the competence of his appeal. Order 2rule 9(2) of the Rules gives the court a discretion toeither entertain or refuse to entertain the objectionin the event of the respondent’s failure to complywith Order 2 rule 9(1). In the instant case, the1 st and 2 nd respondents failed to comply with theRules when raising their preliminary objections.The 1 st and 2 nd respondents filed their noticesof preliminary objection incorporated in theirbriefs of argument on 22 nd February 2021 and theappellant was served on the same date, less thantwo days before the hearing of the appeal on 24 thFebruary 2021. The objections were struck out fortheir failure to comply with Order 2 rule 9(1) of theRules. [Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt.1035) 1 referred to.] (Pp. 379, paras. F-G; 380-381,paras. D-A)

Nigerian Cases Referred to in the Judgment:

A.P.C. v. Lere (2020) 1 NWLR (Pt. 1705) 254

A.P.C. v. Uduji (2020) 2 NWLR (Pt. 1709) 541

A.P.C. v. Umar (2019) 8 NWLR (Pt. 1675) 5

Abubakar. v. Smith (1973) 6 SC 31

Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170

Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348

Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137

Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684

Aremo II v. Adekanye (2004) 13 NWLR (Pt.891) 572

Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597

Barbus & Co. (Nig.) Ltd. v. Okafor-Udeji (2018) 11 NWLR(Pt.1630) 298

Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 332

Disu v. Ajilowura (2006) 14 NWLR (Pt.1000) 783

Drexel Energy & Natural Resources Ltd. v. Trans InternationalBank Ltd. (2008) 18 NWLR (Pt.1119) 388

Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1

Ejuetami v. Olaiya (2001) 18 NWLR (Pt.746) 542

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Emenike v. P.D.P. (2012) 12 NWLR (Pt. 1315) 556

I.N.E.C. v. Ogbadibo Local Government (2016) 3 NWLR(Pt.1498) 167

Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87

Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 115

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

NCC v. Motorphone Ltd. (2019) 14 NWLR (Pt. 1691) 1

Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt.1672) 422

P.D.P. v. Sheriff (2017) 15 NWLR (Pt.1588) 219

P.D.P. v. Sylva (2012) 13 NWLR (Pt. 1316) 85

P.W.T. Ltd. v. J.B. Olandeen Int’l (2010) 19 NWLR(Pt.1226) 1

Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt.627) 459

Skye Bank Plc v. Anaemem (2017) 6 NWLR (Pt.1590) 24

Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669

Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670

Ufomba v. I.N.E.C. (2017) 13 NWLR (Pt. 1582) 175

Uwazurike. v. A.-G., Fed. (2007) 8 NWLR (Pt.1035) 1

Williams v. Williams (2008) 10 NWLR (Pt.1095) 364

Foreign Case Referred to in the Judgment:

Institute of Mechanical Engineers v. Cane (1961) AC 696

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999 (asamended), Ss. 6(6)(b), 285(11), and (14)(a)-(c)

Electoral Act, 2010 (as amended), S. 56

Nigerian Rules of Courts Referred to in the Judgment:

Rivers State High Court (Civil Procedure) Rules, 2010, O. 3r.8(1)(2)(3)

Supreme Court Rules, 1999 (as amended), O. 2 9(1) & (2),O. 2 30, O. 8

Book Referred to in the Judgment:

All Progressives Constitution Article 9(vi), 12.1(1)(v),12.8(xxx), 13(4)(xvi), 21(B)(i)

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Appeal:

This was an appeal against the decision of the Court of Appealallowing the 1st respondent’s appeal against the judgment of theHigh Court which granted the appellant’s claims. The SupremeCourt, in a unanimous decision, dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal:.Amina AdamuAugie, J.S.C. (Presided); Adamu Jauro, J.S.C. (Readthe Leading Judgment); Samuel Chukwudumebi Oseji,J.S.C.; Tijjani Abubakar, J.S.C.; Emmanuel AkomayeAgim, J.S.C.

Appeals Nos.: SC/CV/17/2021; SC/CV/51/2021

Date of Judgment: Friday, 5th March 2021

Names of Counsel: Mr. Emeka Etiaba, SAN; EchezonaEtiaba, SAN (with them, Joy Etiaba, Esq. and NancyShikaan, Esq.) – for the Appellant

Mr. Tunde Tuduru U. Ede, SAN (with him, Chief E. N.Ebete, Esq., C. W. Jerome, Esq., Sheriff Adukke, Esq.and M. G. Bello, Esq.) – for the 1 st Respondent

M. S. Ibrahim, Esq. (with him, C. C. Agidi, Esq., NafisatJibril, Esq., G. O. Akpelu, Esq. and Aisha Ibrahim, Esq.)- for the 2 nd Respondent

Obinna Ajoku, Esq. (with him, Obinna Eze-Odili, Esq.) -for the 3 rd Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Abuja

Names of Justices that sat on the appeal:.Peter OlabisiIge, J.C.A. (Presided and Read the Leading Judgment);Yargata Byenchit Nimpar, J.C.A.; Elfrieda OluwayemisiWilliams-Dawodu, J.C.A.

Appeal No.: CA/PH/215/2020

Date of Judgment: Tuesday, 29th December 2020

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High Court:

Name of the High Court: High Court of Rivers State, PortHarcourt

Name of the Judge:.Omeriji, J.

Suit No.: PHC/4355/2019

Date of Judgment: Tuesday, 9th June 2020

Names of Counsel: Echezona Etiaba, SAN (with him, N.J. Asoh, Esq.; K.C. Oni, Esq;) – for the Claimant

Chief E. N. Ebete, Esq. (with him, C. W. Jerome, Esq.;G. C. Chinde, Esq.; B. E. Eniji, Esq.; O. C. Oyiba, Esq.;K. U. Igbaki, Esq.; H. Chukwu, Esq. and Loveday Obari,Esq.) – for the defendant

Counsel:

Mr. Emeka Etiaba, SAN; Echezona Etiaba, SAN (with them,Joy Etiaba, Esq. and Nancy Shikaan, Esq.) – for the Appellant

Mr. Tunde Tuduru U. Ede, SAN (with him, Chief E. N. Ebete,Esq., C. W. Jerome, Esq., Sheriff Adukke, Esq. and M. G.Bello, Esq.) – for the 1 st Respondent

M. S. Ibrahim, Esq. (with him, C. C. Agidi, Esq., NafisatJibril, Esq., G. O. Akpelu, Esq. and Aisha Ibrahim, Esq.) – forthe 2 nd Respondent

Obinna Ajoku, Esq. (with him, Obinna Eze-Odili, Esq.) – forthe 3 rd Respondent

JAURO, J.S.C. (Delivering the Leading Judgment): This appealis against the decision of the Court of Appeal, Abuja Divisiondelivered on 29th December, 2020 in Appeal No. CA/PH/215/2020wherein the 1st respondent’s appeal was allowed and the judgmentof the Rivers State High Court sitting in Port Harcourt delivered byG.O. Oremeji, J. on the 9th June, 2020 in Suit No. PHC/4355/2019was set aside.

Brief Statement of Facts

The National Working Committee of the 1st respondent dissolvedthe entire executive structure of the party at all levels in RiversState. It went ahead to set up a Caretaker Committee headed by the2nd respondent to run the affairs of the party in the State.

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Upon the constitution and inauguration of the said CaretakerCommittee, the appellant instituted Suit No. PHC/4355/2019 inthe High Court of Rivers State via an originating summons dated12th December, 2019 and filed on 16th December, 2019. In the saidoriginating summons which can be gleaned at pages 1 – 3 of therecord of appeal, the appellant sought for the determination of thefollowing questions:

1.“Whether by the provisions of Article 12(1), 1(v),8(xxx) and 9 of the All Progressives CongressConstitution (the Constitution), the claimant is amember of the 2nd defendant’s foremost organ, to wit:National Convention and as such, a statutory memberof the State Executive Committee of the 2nd defendantin Rivers State?

2.Whether by the provisions of Article 12(1) (v), (8),8(xxx) and 13(4)(xvi) of the Constitution of the 2nddefendant; the National Working Committee of the 2nddefendant’s decision, appointment and inaugurationof a Caretaker Committee in Rivers State is not ultravires the Constitution of the Party.

3.Whether by virtue of Article 13(4), 4 (xvii) of theConstitution of the 2nd defendant, the continuous stayin office of the Party’s Caretaker Committee in RiversState is not unconstitutional, null and void.”

Upon the favourable determination of the questions, theappellant sought the following reliefs against the respondents:

1.“A Declaration that by virtue of Article 12(1)(v),(8), 8(xxx) and 13( 4) of the All ProgressivesCongress’s Constitution, the claimant is a memberof the National Convention of the 2nd defendant andas such a statutory member of the State ExecutiveCommittee of the 2nd defendant in Rivers State.

2.A Declaration that the exclusion of the claimant andall other statutory members of the State ExecutiveCommittee of the 2nd defendant from the CaretakerCommittee set up by the 2nd and 3rd defendants inRivers State is ultra vires the Constitution of the 2nddefendant and is therefore null and void.

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3.A Declaration that the continuous stay in office of theCaretaker Committee is unconstitutional.

4.An Order of this Honourable Court setting aside thesaid appointment and/or inauguration of the CaretakerCommittee of the 2nd defendant in Rivers State madeon or about the 6th day of September, 2019.

5.An Order directing the 2nd and 3rd defendants within48 hours of the making thereof to constitute a freshCaretaker Committee incorporating the claimant asthe Chairman and all statutory members of the StateExecutive Committee as members in furtherance ofthe Constitution of the 2nd defendant, failure of whichstatutory members shall comprise the CaretakerCommittee chaired by the claimant in furtherance ofthe All Progressives Congress Constitution.

6.AND of such order and further orders as this HonourableCourt may deem fit to make in the circumstances ofthis application.”

The trial court in its decision contained at pages 396 – 419 ofthe printed records, granted all the reliefs sought by the appellant asclaimant.

Naturally aggrieved by the decision of the trial court, the 1strespondent as appellant in the court below, approached the courtbelow in Appeal No. CA/PH/215/2020 challenging the decision ofthe trial court.

Upon hearing the appeal, the court below in its consideredjudgment delivered on 29th December, 2020 allowed the appeal andset aside the decision of the trial court.

Miffed by the turn of events, the appellant herein in the instantappeal invoked the appellate jurisdiction of this court via a noticeof appeal containing eight grounds of appeal dated and filed on 11thJanuary, 2021.

In line with the Rules and Practice of this court, parties filedand exchanged their respective briefs of argument. Emeka EtiabaSAN settled both the appellant’s brief of argument and reply briefto the 1st and 2nd respondents’ brief of argument. The appellant’sbrief of argument is dated and filed on 13th January, 2021 whilethe reply brief dated and filed on 24th February, 2021. For thedetermination of the appeal, the appellant from the eight groundsof appeal contained in the notice of appeal formulated six issues towit:

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1.“Having regard to the reliefs sought in the suit, factssupporting it and the stance of the law, whether thelower court was wrong to hold that the suit subjectmatter of this appeal is not a pre-election matter.(Distilled from grounds 1 and 2).

2.Whether the lower court was not wrong in holding thatthe appellant had no vested right, nay, locus standi tosue the respondents (Distilled from ground 3).

3.Whether Articles 12.1, 12.8, 8(xxx), 13.4(xvi) and(xvii) of the 1st respondent’s Constitution make a caseof non-inclusion of the appellant and other statutorymembers of the State Executive into the State CaretakerCommittee (Distilled from ground 4).

4.Whether the non-joinder of the other 27 statutorymembers of the 1st respondent’s Executive in RiversState is fatal to the suit (Distilled from ground 5).

5.Whether the 1st respondent’s right to hearing wasdenied at the trial court (Distilled from ground 6).

6.Whether the appellant’s suit was not commenced bydue process of law. (Distilled from grounds 7 and 8)”.

Tuduru U. Ede, SAN settled the 1st respondent’s brief ofargument dated 22nd February, 2021 and filed on the same date. Forthe determination of the appeal, the 1st respondent at paragraph 6.1of the 1st respondent’s brief distilled four issues to wit:

1.“Whether the Justices of the Court of Appeal wereright when they dismissed the preliminary objectionof the appellant on the ground that appeal No: CA/PH/215/2020 does not arise from a pre-electionmatter within the meaning of section 285(14) of theConstitution of the Federal Republic of Nigeria, 1999(as altered)? (Grounds 1 and 2).

2.Whether the Justices of the Court Appeal were rightwhen they unanimously set aside the decision of thetrial court and upheld the preliminary objection ofthe 1st respondent against the suit at the trial court?(Grounds 3, 5, 7 and 8).

3.Whether Articles 12.1, 12.8, 8(xxx), 13.4 and(xvii) of the 1st respondent’s Constitution makes theinclusion of the appellant and other statutory members

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of the National Convention of the party compulsory asState Caretaker Committee? (Distilled from ground 4).

4.Whether the 1st respondent’s right to fair hearing wasdenied at the trial court in respect of the preliminaryobjection against the competence of the suit? (Ground6).”

The 2nd respondent’s brief of argument is dated 22nd February2021 and filed on the same date. The said brief was settled M.S.Ibrahim Esq. who at paragraph 3.1 distilled five issues to wit:

“1. Whether the lower court was right in its decision thatthe suit leading to the appeal before it, is not a pre-election matter, within the meaning and definitionof section 285(14) of the Constitution of the FederalRepublic of Nigeria, 1999 as altered. (Distilled fromgrounds one and two of the notice of appeal).

2.Whether the lower court was right in its decision thatthe appellant did not show that he had any vested rightto sue the respondents. (Distilled from grounds threeand four of the notice of appeal).

3.Whether the appellant ought to have joined the othertwenty seven members of the State ExecutiveCommittee to the suit. (Distilled from ground five).

4.Whether the appellant’s suit was commenced by dueprocess of law. (Distilled from grounds seven andeight of the notice of appeal).

5.Whether the right to fair hearing of the appellant wasdenied at the trial High Court. (Distilled from ground6 of the notice of appeal).”

The 3rd respondent however did not file any brief of argument.

The appeal was heard on 24th February, 2021 wherein counsel to theparties adopted their respective briefs and made oral adumbrationsin support of their diverse postures in the appeal.

Before going into the submissions and arguments on the issuesdistilled in their respective briefs, it is imperative at this stage to statethat the 1st and 2nd respondents’ counsel filed notices of preliminaryobjection challenging the competence of the appellant’s appealamongst other grounds.

The 1st respondent’s notice of preliminary objection is dated22nd February, 2021 and filed on the same date. The objection was

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brought pursuant to Order 2 rule 9 of the Supreme Court Rulesand the grounds upon which the 1st respondent’s objection waspredicated are:

“The appellant at paragraph 2.12 of his brief ofargument seeks to rely on the notice of appeal filed oni.the 11/1/2021.

ii. The said notice of appeal is not copied in the printedrecord of appeal as same was only filed at the registryof this apex court contrary to the combined effect onthe provisions of Order 2 rule 30 and Order 8 rule 2(1)of this Court.

iii. The notice of appeal filed on the 11/1/2021 failed tostate whether the whole or part only of the decision ofthe court below is complained of.

iv. Merely stating “part of the judgment” as was done bythe appellant in this case, does not satisfy the mandatoryprovisions of Order 8 rules 2(1) of the Supreme CourtRules.

v. The reliefs as contained in the notice of appeal filedon the 11/1/2021 are not exact in nature as they are notsought in the Supreme Court.

vi. The Court is not a Father Christmas as to award anappellant a relief not sought under the guise of ‘anyorder or further order the Honourable may deem fit tomake in the circumstances.’

vii. The appellant’s brief of argument in the instant appealhas altered the parties as obtained in the court oftrial in terms of their capacity. A new party was thusintroduced.

viii. The appellant’s brief of argument filed on the 13/1/2021,the capacity in which the 2nd respondent was sued hasbeen altered by the appellant without leave of thisHonourable Court and now reads “(Former Chairman,Caretaker Committee of All Progressives Congress,Rivers State)”.

ix. The notice of appeal filed in this appeal on the11/1/2021 as well as the appellant’s brief of argumentfiled on 13/1/2021 are altogether incompetent.

Grounds 3, 5 and 8 of the notice of appeal filed onx.11/01/2021 are grounds of mixed law and fact for

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which the leave of the court below or this apex court isrequired.

xi. Grounds three (3), four and five of the notice ofappeal filed on 11/01/2021 are incompetent as they donot challenge any ratio decidendi of the judgment ofthe court below on appeal.

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xii. Grounds three (3), four and five of theappellant’s notice of appeal together with the issues 2,3 and 5 distilled therefrom ought to be struck out forincompetence.

xiii. This court lacks jurisdiction to hear and determinegrounds 3, 4, 5 and 8 of the notice of appeal.

xiv. The appellant never sought the requisite leave of court.

xv. The grounds are altogether incompetent and liable tobe struck out.

xvi. Arguments in respect to issues 2 & 3 formulated fromthe offending grounds of appeal which the appellantargued together with grounds 4 are also incompetentand ought to be struck out.

xvii. All the argument in respect to issue 6 jointly formulatedfrom grounds 7 and 8 ought to be struck out forincompetent.

xviii. The instant appeal has become academic and withoutany utilitarian value in that crucial and specificfindings made by the court below in the judgment wasnot appeal against Ladoja v. Ajimobi (2016) 10 NWLR(Pt. 1519) SC 87, 144, paras. B – D, 147, G – H; 158paras. C – B.

xix. The 1st respondent therefore prays this honourablecourt to strike out the Supreme Court Appeal No: SC/CV /17/2021 for incompetence.”

The 2nd respondent on the other hand also filed a notice ofpreliminary objection dated and filed 22nd February, 2021. Theobjection was brought pursuant to Order 2 rule 9(1) of the SupremeCourt Rules 1999 (as amended), section 6(6) of the CFRN (asamended) and under the inherent jurisdiction of this Court. Themajor grounds upon which the objection was anchored are:

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1.“The notice and grounds of appeal is incompetent asthe appellant failed to specify the part of the judgmenthe is complaining of.

2.The instant appeal has become academic; the appellanthaving failed to appeal material decisions made bythe lower court, whose judgment it purports to appealagainst.

3.Grounds one and two of the notice and groundsof appeal and issue one formulated therefrom, isincompetent and ought to be struck out, as the appellanthas not sought any relief in the notice and grounds ofappeal that will sustain the aforementioned issues fordetermination.

4.Grounds three (3), four (4), five and six of thenotice of appeal is incompetent, as it did not arise fromthe judgment being appealed against; similarly, issuestwo (2), three (3), four and five formulatedfrom grounds three (3), four (4), five and sixrespectively are incompetent and liable to struck out.”

Having perused the grounds upon which the objections arepredicated, I am of the view that the objections of the 1st and 2ndrespondents’ counsel are almost the same in substance and form.Before going into the arguments and submissions of counsel forand against the preliminary objection, it is imperative to point outthat the 1st and 2nd respondents failed to comply with the Rules ofthis court when raising a preliminary objection. Order 2 rule 9(1) ofthe Rules of this court provides as follows:

“A respondent intending to rely on a preliminaryobjection to the hearing of the appeal shall give theappellant three clear days notice thereof beforehearing, setting out the grounds of objection and shallfile such notice together with ten copies thereof withthe Registrar within the same time”

The 1st respondent’s notice of preliminary objection is dated22nd February, 2021 and filed on the same date. Likewise, the 2ndrespondent on the other hand also filed a notice of preliminaryobjection dated and filed 22nd February, 2021.

The appellant was served with the notices of both counsel forthe 1st and 2nd respondents on 22nd February, 2021, the same date

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the notices and the 1st and 2nd respondent’s briefs were filed at theRegistry of this court. It is also evident on record that the appellant’sbrief of argument had already been filed and served on 13th January,2021.

As rightly noted by the appellant’s counsel in his replybrief that despite having been served with the appellant’s brief ofargument, the 1st and 2nd respondents’ counsel chose to wait till 22ndFebruary, 2021 before filing their notices of preliminary objectionand arguments in support thereof incorporated in their briefs ofargument. By simple computation of time, this is more than thirtyfive days after the service of the appellant’s brief of argument onthem and less than two days before the hearing of this appeal on24th February, 2021.

As stated earlier in this preceding part of this judgment, the1st respondent predicated his objection on nineteen grounds. The2nd respondent in similar vein, also predicated his objection onvirtually all the grounds relied upon by the 1st respondent. Theessence of the direction given in Order rule 9(1) of the Rules of thiscourt is to ensure an equal playing ground between the parties. Thisis to prevent a respondent who intends to rely upon a preliminaryobjection to the hearing of an appeal from taking the appellant bysurprise. The three clear days stated therein in the rules of this courtis to afford the appellant reasonable time to prepare his argumentsin opposition to the objection filed challenging the competence ofhis appeal.

On the day the appeal was heard, learned counsel for the 2ndrespondent admitted during the process of adumbration that hisnotice of preliminary objection fell short of two clear days contraryto Order 2 rule 9 of the Rules of this court.

I would have been inclined to consider the objection on themerit in the light of Order 2 rule 9 which gives the court adiscretion to either entertain or refuse to entertain the objectionin the event of the respondent’s failure to comply with Order 2rule 9 (1), however, with the rather cumbersome way and mannerin which the objections were argued, I am of the opinion that itwould amount to an undue advantage on the part of respondentsto say that the appellant should take just a day in replying to thecomprehensive objections when he is entitled to three days.

Without dissipating much judicial energy on the objection,I refuse to exercise my discretion in favour of the 1st and 2nd

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respondents. On this note, the objections are hereby struck out byreason of their failure to comply with Order 2 rule 9 of the Rulesof this court. See Uwazurike & Ors. v. A.-G., Federation (2007)LPELR – 3448 (SC), (2007) 8 NWLR (Pt.1035) 1.

Having struck out the preliminary objections of both the 1stand 2nd I shall consider the appeal on the merit.

Arguments and Submissions of Counsel on the Appeal

On whether the court below was right to have held that thesuit culminating into the instant appeal is not a pre-election matter,learned senior counsel for the appellant at paragraph 4.02 of theappellant’s brief of argument reproduced the reliefs sought by theappellant in his originating summons and submitted that the actionis a pre-election matter. He submitted further that the court belowtook a narrow interpretation of section 285(14) of the CFRN 1999(as amended) and refused to follow the interpretation of this courtin the case of APC v. Umar & 2 Ors. (2019) LPELR – 47296 (SC),(2019) 8 NWLR (Pt. 1675) 564.

That if the court below had rightly interpreted section 285(14)of the Constitution (supra), it would have come to a conclusion thatthe appeal before it was statute barred having been filed outside 14days from the date of the judgment of the trial court and judgmentof court below delivered 60 days from the date of filing the appeal.

In response to the submissions of the appellant above,counsel for the 1st respondent submitted that section 285(14) ofthe Constitution does not only restrict the nature of the complainti.e. the subject matter of the action, but also prescribes who couldinstitute the suit under the subject and validly evoke the adjudicatoryjurisdiction of the court in a pre-election matter. Learned seniorcounsel for the 1st respondent submitted that to qualify as a pre-election matter under section 285 – of the CFRN (1999)(as amended), the following essential elements must be present towit:

The party suing must be an aspirant who contestedor participated in a political party primaries for thea.nomination and selection of a candidate of an election.

The complaint must relate to the breach of the ElectoralAct, 2010 (as amended) or any Act of the NationalAssembly regulating the conduct of primaries ofb.political party.

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There must be allegations of breach of the provisionsof the guidelines of a political party for the conduct ofparty primaries in respect of the selection or nominationc.of candidates for an election; and

Action by a political party challenging the actions,decision or activities of the Independent NationalElectoral Commission with respect to its candidatesd.for an election.

It was the submission of learned senior counsel for the 1strespondent that the court below was right in holding that the suit,subject of the appeal is not a pre-election matter and as such theprovisions of section 285(11), (12), (a – c) of the CFRN 1999(as amended) are inapplicable in the instant appeal.

He referred this court to the case of APC & Anor v. Engr.Suleiman Aliyu Lere & Anor. (2020) 1 NWLR (Pt. 1705) 254 @279 A-C.

The submissions of the 2nd respondent’s counsel substantiallyaccords with that of the learned senior counsel for the 1st respondent.However, counsel for the 2nd respondent submitted that the case ofthe appellant borders on the complaint of membership of a caretakercommittee of a political party, and who should be its chairman.That it cannot be said that the suit is a pre-election matter as sameis clearly an intra-party affair to which the courts are not seized of.He cited the case of Ufomba v. INEC & ORS. (2017) 13 NWLR (Pt.1582) 175 at 208.

On issue Nos. 2 & 3 distilled and argued together by seniorcounsel for the appellant, counsel submitted that the appellant hasthe locus to institute the action because his right to be a member ofthe State Executive Committee is constitutionally vested on him bythe party and all the appellant sought in the suit was a re-echoingof the right to forestall a breach as the circumstances of the suitdisclosed. That the appellant was right to have instituted the actionto protest and lawfully resist the sack of the statutory members ofthe State Executive Committee. Counsel reproduced elaborately atparagraph 5.14 of the appellant’s brief the excerpts of the appellant’sdeposition in the affidavit in support of the originating summons andsubmitted that the depositions contained therein clearly show thatthe appellant has a reasonable cause of action which is enforceableagainst the respondents.

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On whether going by the provision of Article 13.4 and(xvii) of the 1st respondent’s Constitution, the appellant who is astatutory member of the State Executive Committee, ought tobe included or excluded from the Caretaker Committee, counselfor the appellant submitted that Article 13.4 and (xvii) didnot discuss the inclusion or exclusion of the Statutory membersof the State Executive Committee from the Caretaker Committee.He further submitted that the court below therefore read into theprovisions, words not contained which is against the canons ofstatutory interpretation. He cited the cases of W.T. Ejuetami v. Mrs.Benedicta Olaiya & Anor. (2001) LPELR – 1072 (SC), (2001) 18NWLR (Pt.746) 542; Skye Bank Plc v. Victor Anaemem (2017)LPELR – 42595 (SC), (2017) 6 NWLR (Pt.1590) 24.

It was the contention of the appellant’s counsel that theNational Working Committee of the 1st respondent has no power toexclude the statutory members of the State Executive Committeefrom the running of the affairs of the Rivers State Chapter underany guise.

In his final analysis on these issues, counsel urged the court tohold that the decision of the National Working Committee is ultravires the relevant provision of the Constitution on the vested rightsof the appellant and other statutory members of the State ExecutiveCommittee.

On whether the appellant had the requisite locus to institutethe action against the 1st respondent, learned senior counsel forthe 1st respondent submitted that the law is long settled that locusstandi will only be accorded to a party who shows that his civilrights and obligations have been or are in danger of being violatedor adversely affected. He cited the case of INEC v. Ogbadibo LocalGovernment & Ors. (2015) LPELR – 24839 (SC), (2016) 3 NWLR(Pt.1498) 167.

It was the submission of the learned senior counsel for the1st respondent that upon a careful reading of the affidavit of factsin support of the originating summons and the exhibits attachedthereto, it is obvious that the appellant failed to disclose any vestedright granted to him by the Constitution of the 1st respondentwhich was allegedly infringed or violated. He submitted furtherthat the Constitution of the 1st respondent did not mandate the 1strespondent’s members or officials to carry out any act in favour ofthe appellant which was not complied with.

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On whether the appellant who is a statutory member of theState Executive Committee, ought to be included or excluded fromthe Caretaker Committee, it was the contention of the learnedsenior counsel for the 1st respondent that the provisions of Article13.4 and (xvii) of the Constitution of the 1st respondentwhich empowers the National Working Committee to set up aCaretaker Committee does not refer to the appellant in any mannerwhatsoever. He submitted further that the setting up of a CaretakerCommittee to fill up a lacuna in any organ of the 1st respondentis an exclusive power of the National Working Committee of the1st respondent. That it was in the exercise of its powers that theNational Working Committee set up a Caretaker Committee andappointed the 2nd respondent as its bona fide chairman for its RiverState Chapter. The learned Silk submitted that the complaints of theappellant squarely borders on the issue of the leadership of the 1strespondent’s, which this court has consistently held not to be thebusiness of the law court to entertain since it borders on intra partyaffairs. He also cited the case of Ufomba v. INEC & Ors. (supra).

The submissions and arguments of the 2nd respondent’s counselunder this issue is the same in substance as that of the learned seniorcounsel for the 1st respondent elaborately reproduced above.

On whether the non-joinder of the other 27 statutory membersof the 1st respondent’s Executive is fatal to the appellant’s suit,learned senior counsel submitted that the questions and the reliefs inthe suit are not ones that the trial court could not have dealt with inthe absence of the 27 statutory members of the Rivers State Chapterof the 1st respondent. He submitted further that the questions inthe originating summons had nothing to do with the other 27statutory members. The learned silk submitted that the court belowdid not consider the fact that the suit is an action in rem beforecoming to the conclusion that the suit was improperly instituted.He further submitted that the 27 statutory members who the courtbelow believed ought to have been joined are not necessary partiesin the suit but at best could be deemed interested parties and thejurisdiction of the trial court was not ousted by their non-joinder.

In response to the above submissions, learned senior counselfor the 1st respondent submitted that in the light of the depositionsof the ·appellant as contained in the affidavit in support of theoriginating summons as well as the reliefs sought on their behalf, the

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[2021]14NWLR385

27 other Statutory Members whom the appellant claimed ought tohave been automatically made members of the Caretaker Committeeset up by the National Working Committee of the 1st respondent arenecessary and indispensable parties who ought to have been madeco-claimants. He further submitted that the reason for this is becausethe appellant sought reliefs which would affect them even wherethe appellant instituted the suit without their consent and authorityand did not sue in a representative capacity as representing the 27other statutory members. That the 27 statutory members ought tohave been joined to the suit as necessary parties. He cited the caseof Panalpina World Transport Ltd. v. J.B. Olandeen International& Ors. (2010) LPELR – 2902 (SC), (2010) 19 NWLR (Pt.1226) 1.The learned senior counsel for the 1st respondent argued that thelaw is settled that no judgment or order of a court can bind a personwho is not a party to the suit in which such judgment or order wasmade. He relied on the case of Babatola v. Aladejana (2001) 12NWLR (Pt. 728) 597.

Also, the submissions and arguments of the 2nd respondent’scounsel under this issue is the same in substance as that of thelearned senior counsel for the 1st respondent elaborately reproducedabove.

On issue No.5, counsel for the appellant submitted that thecourt below was wrong in holding that the trial court violatedthe respondent’s right to fair hearing. He further submitted thatassuming but without conceding that the trial court was wrong inits treatment of the issue of jurisdiction raised by the respondents,that will not amount to denying them fair hearing as they wereadequately heard and an appealable decision delivered. He furthersubmitted that the trial court considered and resolved all thejurisdictional issues raised albeit not as the respondents wanted itbut that cannot amount to violation of their right to fair hearing.

On the concept of fair hearing, counsel referred the court tothe case of Joseph Agbahomovo & Anor v. Apata Eduyegbe & Ors.(1999) LPELR – 224 (SC), (1999) 3 NWLR (Pt.594) 170. Theappellant’s counsel submitted further that the complaint of the 1strespondent at best is to the style the trial Judge adopted in treatingthe preliminary objection.

On the issue of denial of fair hearing as held by the court below,learned senior counsel for the 1st respondent and counsel for the

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2nd respondent in their similar submissions contended that the trialcourt failed to consider and determine all the jurisdictional issues inthe preliminary objection raised at trial challenging the competenceof the appellant’s suit. And that by not so doing, the court belowwas on a strong footing in holding that the 1st respondent’s right tofair hearing was denied at trial.

On whether the suit was initiated through due process of law,counsel for the appellant submitted that the Rivers State High Court(Civil Procedure) Rules did not provide for the filing of a verifyingaffidavit alongside an originating summons. That going by thedecision of the court below on the lack of affidavit of verificationaccompanying the originating summons, the court below placed ahigher and non-existing burden on the appellant.

On the failure of the appellant to exhaust all the internaladministrative remedies before instituting the action, the appellant’scounsel submitted that having regard to the nature of the breachof the Constitution of the 1st respondent by the National WorkingCommittee of the party and its disposition towards the appellant,the appellant was right in commencing the suit after his botchedattempt to have the dispute resolved within the party. He referredthe court to the case of PDP v. Senator Ali Modu Sheriff & Ors.(2017) LPELR-42736, (2017) 15 NWLR (Pt.1588) 219.

In the final analysis, counsel urged the court to allow theappeal and set aside the decision of the court below.

By way of reply to the submissions and arguments of theappellant on whether the appellant’s suit was commenced throughdue process of law, learned senior counsel for the 1st respondentsubmitted that commencement of an action by due process oflaw is one of the pedestals upon which a court of law can assumejurisdiction as held in the case of Madukolu & Ors. v. Nkemdilim(1962) LPELR – 24023 (SC), (1962) 2 SCNLR 341. Counselsubmitted that the extant High Court (Civil Procedure) Rules ofRivers State under which the suit culminating into the instantappeal was filed, mandates a claimant who intends to commencea suit vide originating summons to file along with it an affidavitof verification. On the effect of failure of a party who commencesa suit vide originating summons to file an affidavit of verification,learned senior counsel for the 1st respondent referred the court tothe case of NCC v. Motorphone Ltd. (2019) 14 NWLR (Pt. 1691)

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1 at 30 A-B. He submitted that from all the documents filed bythe appellant in support of his originating summons, no affidavitof verification was filed, therefore the appellant fell short of therequirement in commencement of the suit culminating into theinstant appeal.

Still on whether the suit was commenced through due processof law, counsel for the 1st respondent submitted that the appellantfailed to exhaust all the internal mechanisms and procedures laiddown in Article 12 (B) of the Constitution of the 1st respondentfor resolution of disputes or any complaints an aggrieved membermay have against the party or its officials. That the appellant byhis failure to comply with the said provision of the 1st respondent’sConstitution on the internal dispute resolution mechanisms failed toactivate the jurisdiction of the court. On the failure to comply withcondition precedents for institution of an action, counsel referredthe court to the case of Drexel Energy & Natural Resources Ltd. &Ors. v. Trans International Bank Ltd. & Ors. (2008) LPELR – 962(SC), (2008) 18 NWLR (Pt.1119) 388.

In similar vein, counsel for the 2nd respondent submitted thatthe appellant failed to comply with Order 3 rule 8 of the RiversState High Court (Civil Procedure) Rules and Article 21 (B)of the Constitution of the 1st respondent before instituting theaction and by reason of such noncompliance, the trial court had nojurisdiction to entertain the action. He cited the cases of Agip (Nig.)Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 348 at 419 para.H; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 154 E – G.

On the whole, both counsel for the 1st respondent and 2ndrespondent urged the court to dismiss the appeal for lacking inmerit.

Reply Brief

In his reply brief, learned counsel for the appellant re-echoedhis submission to the effect that the Rivers State High Court (CivilProcedure) Rules does not provide for such filing of a verifyingaffidavit. He further submitted that the case of NCC v. MotorphoneLtd. (2019) 14 NWLR (Pt. 1691) 1 @ 30 A – B cited by the 1st and2nd respondents does not emanate from the River State High Courtbut from the Federal High Court which has the practice of filing averifying affidavit alongside an originating summons.

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Resolution

Having carefully examined the grounds of appeal, the briefsfiled by counsel and the issues distilled therein, I am of the viewthat the issues below are apt for the determination of the appeal:

1.Having regard to the reliefs sought in the suit, factssupporting it and the stance of the law, whether thelower court was wrong to hold that the suit subjectmatter of this appeal is not a pre-election matter.(Distilled from grounds 1 and 2).

2.Whether the appellant’s suit was not commenced bydue process of law. (Distilled from grounds 7 and 8)”.

3.Whether the lower court was right in its decision thatthe appellant did not show that he had any vested rightto sue the respondents. (Distilled from grounds threeand four of the notice of appeal).

A careful perusal of issues 1 to 3 distilled by this court for thedetermination of the instant appeal would reveal that the said issuesare jurisdictional in nature. In the course of the determining theappeal, I shall be considering the issues together.

Issue no.1 is challenging the jurisdiction of the Court ofAppeal to hear and determine the appeal on the ground that the suit,being a pre-election matter, the appeal was not filed and determinedwithin the time stipulated therein in section 285 of the Constitution(supra).

The term “statute barred” simply means barred by a provisionof the statute. It is usually as to time i.e. the bar gives a time limitduring which certain actions or steps should be taken, and one isbarred from taking action after the period specified in the statute.Any action taken after or outside the specified limit or period is ofno avail and has no valid effect. The bar can be lifted or the limitextended only if the statute allows it to be done. Where there wasno such extension, the action carried out will be invalid, and theCourt will treat it as such. See the case of Araka v. Ejeagwu (2000)12 S.C. (Pt. 1) 99, (2000) 15 NWLR (Pt. 692) 684. The purpose ofthis is to bring an end to litigation so that persons with good causescan pursue them on time before human memory starts to fade orwitnesses become untraceable. See the cases of INEC v. Ogbadibo& Ors. (2015) LPELR-24839 (SC), (2016) 3 NWLR (Pt.1498)167; Ajayi v. Adebiyi & Ors. (2012) LPELR-7811 (SC), (2012) 11NWLR (Pt.1310) 137.

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[2021]14NWLR389

It is trite law that in order to determine whether a case isstatute barred, it is the claimants’ originating processes, usually thewrit of summons and the statement of claim that is considered. Inthe instant appeal, the action before the trial court was commencedby originating summons. Therefore, in order to determine whetherthe court below had jurisdiction to hear and determine the appeal,the processes to consider are only the originating summons andaffidavit in support of originating summons vis-à-vis the relevantlimitation law. See the cases of Egbe v. Adefarasin (1987) LPELR -1032 (SC), (1987) 1 NWLR (Pt.47) 1; Williams v. Williams (2008)LPELR – 3493 (SC), (2008) 10 NWLR (Pt.1095) 364; Aremo IIv. Adekanye & Ors. (2004) LPELR – 544 (SC), (2004) 13 NWLR(Pt.891) 572.

As gleaned from the affidavit evidence in support of theappellant’s originating summons at pages 4 – 7 of the record ofappeal, the appellant averred as follows:

“2. I am the claimant herein and a bona fide card carryingmember of the 2nd defendant since 2014 and I haveserved in various offices in furtherance of the aims andobjectives of the 2nd defendant …”

3.I was elected into the House of Representatives in theyear 2003 and served there until 2007. I was re-electedinto the House of Representatives in 2007 and servedthere until 2011 …”

4.As a member of the House of Representatives, I waschairman of Gas Committee and member of Sport andFinance Committee.

5.……………………

6.……………………

7.……………………

8.Articles 12(1)(v), 8 and 9 of the AllProgressives Congress Constitution (the Constitution),exhibited and marked exhibit C, provides that servingand past members of the National Assembly who aremembers of the 2nd defendant are members of theNational Convention and are statutory members ofthe State Executive Committee as well as the StateCaucus.

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9.By virtue of Articles 12(1) (v), 8 and 9 ofthe Constitution, I am currently a statutory memberof the Rivers State All Progressives Congress StateExecutive Committee having been a former memberof the House of Representatives (National Assembly).

10.By the provision of the Constitution, my membershipof the State Executive Committee is not tenured.

11.Sometimes in 2018, the All Progressives Congress,Rives State held its congresses and elected itsexecutives members in the state.

12.Following the said election, some members of theparty who were aggrieved successfully approached thecourt for the nullification of the said congress and theelection resulting therefrom.

13.The National Working Committee of the 2nd defendantrelying on its powers as provided under Article 13(4)of the All Progressives Congress’s Constitution,appointed a five member Caretaker Committeenamely:- Mr. Isaac Abott Ogbobula, Mr. Friday KinikaOwhor, Mrs. Beatrice Amobi, Prince Abolo Stephenand Mr. Baridon Badom to pilot the affairs of the party(Rivers State Chapter) thereby suspending all other(xvi)Executive members both elected and statutory.

14.I know that my position as a statutory member of theRivers State Executive Committee is constitutionallyguaranteed and cannot be suspended by the NationalWorking Committee in the manner they did.

15.I also know that the National Working Committee ofthe party has, amongst other functions, the power toset up a Caretaker Committee in the event of a lacunain the State Executive Committee of the Party butsuch power is to be exercised in furtherance to theConstitution.

16.I am aware that there are over twenty four othermembers of the defendant in the Rivers State Chapterwho are members of the State Executive Committeeand whose membership of the State ExecutiveCommittee are also statutory and are not affected byterm limits. Some of them are:

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17.I know that my membership of the State ExecutiveCommittee of the 2nd defendant in Rivers State has astatutory flavour and is not affected by tenure limits andany Caretaker Committee constituted to the exclusionof all statutory members is ultra vires the Constitution.

18.That National Working Committee of the 2nd defendanterroneously appointed a Caretaker Committee toreplace the State Executive Committee of the partyin Rivers State without regard to those of us who arestatutory members.

19.On the 3rd day of December, 2019, I wrote an open letterto the National Chairman of our party and conveyedmy reservations on the subject matter and further madedemand which have not been acceded to, hence thecommencement of this suit. The said open letter waspublished in This Day Newspaper of 03/12/2019 andannexed as exhibit D.

20.I sincerely believe that the National WorkingCommittee of the 2nd defendant acted in clear breachof the All Progressives Congress Constitution.

21.I also believe that the exclusion of my name andthose other statutory members of the State ExecutiveCommittee of the Party in Rivers State has challengedour membership of the State Executive Committee andthe Constitution, hence, a need for the determinationof the questions contained in this suit.

22.I know that the tenure of the State Caretaker Committeeof Rivers State was to have ended with the conduct ofcongresses…

23.I also know as a fact that the 1st defendant and membersof the Caretaker Committee have continued to functionin their office. The 1st defendant within the monthof November, 2019 attended the National WorkingCommittee meeting of the party in his capacity asthe Chairman of the Party’s Caretaker Committee inRivers State.

24.The appointment and inauguration of the CaretakerCommittee by the National Working Committee wasnot done in furtherance of the Constitution of the partyas provided by the party Constitution.”

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Flowing from the appellant’s affidavit evidence in support of hisoriginating summons, it is beyond peradventure that the appellant ischallenging the action of the National Working Committee of the 1strespondent appointing a Caretaker Committee to replace the StateExecutive Committee of the party in Rivers State without regard tothe statutory members, which the appellant belongs. In essence, theappellant is challenging the appointment and inauguration of theCaretaker Committee by the National Working Committee on theground that same was not done in furtherance of the Constitution ofthe party as provided by the party Constitution.

Having ascertained the appellant’s cause of action, the questionthat readily comes to mind is whether the cause of action fallswithin the purview of section 285(14) (a – c) of the Constitution(supra). For proper consideration of the question of whether thesuit culminating into the instant appeal is a pre-election matter,recourse must be made to the statutory definition of the phrase“pre-election matter” as provided for under section 285 (a – c)of the Constitution (supra).

Section 285 (a – c) of the Constitution (supra) provides asfollows:

“For the purpose of this section, “pre-election matter”means any suit by-

an aspirant who complains that any of theprovisions of the Electoral Act or any Act of theNational Assembly regulating the conduct ofprimaries of political parties and the provisionsof the guidelines of a political party for conductof party primaries has not been complied withby a political party in respect of the selection or(a)nomination of candidates for an election;

an aspirant challenging the actions, decisions oractivities of the Independent National ElectoralCommission in respect of his participation in anelection or who complains that the provisionsof the Electoral Act or any Act of the NationalAssembly regulating elections in Nigeria hasnot been complied with by the IndependentNational Electoral Commission in respect ofthe selection or nomination of candidates and(b)participation In an election; and

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a political party challenging the actions,decisions or activities of the IndependentNational Electoral Commission disqualifyingits candidate from participating in an electionor a complaint that the provisions of theElectoral Act or any other applicable law hasnot been complied with by the IndependentNational Electoral Commission in respectof the nomination of candidates of politicalparties for an election, timetable for an election,registration of voters and other activities of theCommission in respect of preparation for an(c)election.”

The first issue distilled by the appellant in the instant appealis centered on whether the court below acted correctly in itsinterpretation of section 285 (a – c) of the Constitution (supra).

There are legion of cases of this court on the rules guidingthe court when faced with a question predicated on interpretationof statutes. The law is well settled that for the interpretationof the statutes, once the words used are clear and free fromambiguity, they should be accorded their natural meaning withoutany embellishments. On the cardinal principle governing theinterpretation of constitutional provisions, this court, per OguntadeJSC, in the case of Rashidi Adewolu Ladoja v. INEC (2007) LPELR-1738(SC), (2007) 12 NWLR (Pt. 1047) 115 held that:

“In interpreting a provision of the Constitution, theprimary function of the court is to search for theintention of the lawmaker. Where a constitutionalprovision is clear and unambiguous, the court mustgive the words their ordinary meaning unless it willlead to absurdity and inconsistency with the provisionsof the Constitution as a whole. The true meaning ofthe words used and the intention of the legislaturein a Constitution can be best properly understood ifthe Constitution is considered as a whole. It is singledocument and every part of it must be considered asfar as relevant in order to get the true meaning andintent of any particular portion of the enactment.Also a Constitution must be interpreted and applied

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liberally. It must always be construed in such a waythat it protects what it sets out to protect or guideswhat it sets out to guide. By necessity a constitutionalprovision must be interpreted broadly …..”

See also Hon. Micheal Dapianlong & Ors. v. Chief (Dr.) JoshuaChibi Dariye & Anor (2007) LPELR – 928(SC), (2007) 8 NWLR(Pt.1036) 332; Bola Tinubu v. I.M.B. Securities Plc (2001) LPELR- 3248(SC), (2001) 16 NWLR (Pt.740) 670.

I should bear in mind that where the words of the legislatureare clear, there is no room for applying any of the principles ofinterpretation. It is very clear that where the words used inexpressing the intention of the legislature in the above provisionare plain and unambiguous, in interpreting the Constitution, thecourt must endeavor to give the words used in the Constitution orstatute its ordinary meaning unless such interpretation will lead toabsurdity or inconsistency with the rest of the legislation.

After having carefully examined the provisions of section 285(a – c) of the Constitution (supra), the following points arecrystal clear as held by the court below at pages 823 – 824 of the(14)record of appeal:

1.The appellant is not claiming any reliefs touching orpertaining to being an aspirant complaining that theprovisions of Electoral Act or Any Act regulatingthe conduct of primaries of the appellant and theprovisions of appellant’s Guidelines for conduct of theappellant primaries have not been complied with bythe appellant in respect of the selection or nominationof candidates for an election.

2.The appellant is not claiming to be contesting anyelection but trying to vindicate his right (if any) as amember of National Convention of the Party.

I am also of the view, as rightly held by the court belowthat the appointment of caretaker committee to run the affairs ofa 1strespondent is not by election and is not based on contest oraspiration of an aspirant as envisaged under section 156 of theElectoral Act 2010 as amended. The scenario created by the reliefssought in this suit cannot by any stretch of imagination be coveredby the meaning assigned to pre-election matter in section 285(14)(a – c) of the CFRN 1999 as amended.

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A judicial definition of the phrase “pre-election matter” wasalso recently given by this court in the case of APC & Anor v. Engr.Suleiman Aliyu Lere & Anor. (2020) 1 NWLR (Pt. 1705) 254. In thesaid case, this court, per Rhodes-Vivour, JSC held as follows:

“Pre-election matters are as the name implies mattersthat occurred before the Election Proper. They are liveissues that must be heard and a judgment delivered.Litigation arising from party primaries e.g. substitutionof candidates. Complaints about the conduct ofprimaries are pre-election matters ….

The words used in the statute supra are clear andunambiguous. They should be given their plainordinary meaning which is not in doubt. It says exactlywhat it says.”

See also APC v. Uduji & Anor. (2020) 2 NWLR (Pt. 1709) 541.

From the hills of the forgoing, I come to the inevitableconclusion that this suit cannot under any guise be said to be apre-election matter. I find the submissions of the appellant’scounsel in this regard preposterous because as rightly submittedby learned senior counsel for the 1st respondent at paragraph 6.7of the 1st respondent’s brief, the appellant who instituted his suitat the trial court on 16/12/2019, more than one hundred days after6th September, 2019 when the act, event or action complained oftook place, is aware that the suit is not a pre-election matter withinthe interpretation of section 285(14) of the Constitution (supra).Consequently, the action/suit cannot by any stretch of imaginationbe said to be a pre-election matter.

After having determined the jurisdictional competence ofthe court below to hear and determine the appeal that is under thecurrent appellate scrutiny, I shall proceed to consider whether theappellant’s suit was initiated by due process of law and whether thecourt below was right when it held that the appellant had no vestedright to institute the action against the respondents.

On the conditions that must be satisfied before a court iscompetent to exercise its jurisdiction in respect of any matter,this court, Per Bairamian, JSC (of blessed memory) in the case ofMadukolu & Ors. v. Nkemdilim (supra) held as follows:

“Before discussing those portions of the record, Ishall make some observations on jurisdiction and the

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competence of a court. Put briefly, a Court is competentwhen it is properly constituted as regards numbersand qualifications of the members of the bench, and nomember is disqualified for one reason or another; andthe subject matter of the case is within its jurisdiction,and there is no feature in the case which prevents thecourt from exercising its jurisdiction; and the casecomes before the court initiated by due process of law,and upon fulfillment of any condition precedent to theexercise of jurisdiction. Any defect in competence isfatal, for the proceedings are a nullity however wellconducted and decided: the defect is extrinsic to theadjudication.” (Italics mine for emphasis).

It was the contention of the appellant’s counsel that the courtbelow erred to have held that the appellant’s suit was incompetentby reason of the failure of the appellant to file a verifying affidavitalongside his originating summons. Counsel for the 2nd respondent,expectedly, supported the decision of the court below in this regardand went further to furnish this court at paragraph 4.41 of the 2ndrespondent’s brief of argument, the particular Order of the Rules ofthe trial court which mandated the appellant to file an affidavit ofverification alongside his originating summons.

Order 3 rule 8 of the Rivers State High Court (CivilProcedure) Rules, 2010 provides for commencement of an actionvide originating summons. Order 3 rule 8 provides as follows:

“(1) An originating summons shall be in the Forms 3, 4, or5 to these Rules, with such variations as circumstancesmay require. It shall be prepared by the applicant or hisLegal Practitioner, and shall be signed, stamped andfiled in the Registry, and when so signed, stamped andfiled shall be deemed to be issued.

(2)An originating summons shall be accompanied by;

(a)an affidavit setting out the facts relied upon;

(b)all the exhibits to be relied upon;

(c)a written address in support of the application.

The person filing the originating summons shall leaveat the Registry sufficient number of copies thereoftogether with the documents in sub-rule 2 above forservice on the respondent or respondents.” (Italicsmine for emphasis).

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From the aforementioned provisions of the Rules of theRivers State High Court (Civil Procedure) Rules 2010, I ratherfind it strange how the court below came to the conclusion that theappellant was required to file an affidavit of verification alongsidehis originating summons. The court below at page 856 of the recordof appeal held as follows:

“On whether the action of the 1st respondent wasinitiated by due process of law or whether the conditionprecedents were followed before the institution of theaction. Firstly, it is true that the 1st respondent’s suitwas not accompanied with affidavit of verification.”

The position of the law is that rules of court must primafacie be obeyed and if there is non-compliance with the rules, thenoncompliance must be explained and if not explained, then therewill be no basis upon which the indulgence of the court can begranted or predicated. However, it would be wrong for the courtand parties to import into or expand the Rules of Court to includerequirements or procedure not contained in the Rules except wheresuch Rules of court are amended or replaced by due process of law.

Even where the appellant did not file an affidavit of verificationas rightly noted by the court below, the appellant had no dutyto do so by virtue of Order 3 rule 8 of the Rivers State HighCourt (Civil Procedure) Rules 2010 contrary to the contentions oflearned senior counsel for the 1st respondent and counsel for the 2ndrespondent.

On this note, I hold that going by the aforementioned provisionof the Rules of the trial court, the appellant was not required ormandated to file a verifying affidavit alongside his originatingsummons. The only affidavit required of him was an affidavitsetting out the facts relied upon. This condition was fulfilled by theappellant and as evident from the records, the said affidavit whichcan be gleaned at pages 4 – 7 of the record of appeal.

Next is to decide whether the appellant’s suit was competentupon fulfillment of the condition precedent to the exercise ofjurisdiction. The court below held that the failure of the appellant toexhaust all the internal administrative remedies provided for underArticle 21 (B) of the 1st respondent’s Constitution before filingthe action at the Registry of the trial court is fatal to the jurisdictionof the trial court to entertain the suit.

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The law is trite that where a Statute or Rules of Court prescribea condition precedent to the assumption of jurisdiction, thatcondition precedent must be fulfilled before there is jurisdiction. Acase must therefore come before the court only when initiated bydue process of law and upon fulfillment of any condition precedentto the exercise of jurisdiction. See Shugaba v. U.B.N. Plc (1999)LPELR – 3068 (SC), (1999) 11 NWLR (Pt.627) 459; Drexel Energy& Natural Resources Ltd. & Ors. v. Trans International Bank Ltd.& Ors. (2008) LPELR – 962 (SC), (2008) 18 NWLR (Pt.1119) 388.

The appellant at paragraph 2 of the affidavit in support of hisoriginating summons deposed to the fact that he is a bona fide cardcarrying member of the 1st respondent since 2014 and has servedin various offices in furtherance of the aims and objectives of the1st respondent. The implication of this is that he is bound by theConstitution of the 1st respondent being a statutory member of the1st respondent.

The law is trite that a political party is bound by its Constitutionand any action taken which is not in conformity with the Constitutionof such political party is null and void and of no effect. See the caseof Emenike v. P.D.P. (2012) 12 NWLR (Pt. 1315) page 556 at 592paras. C-D where this court, per Fabiyi, JSC lent his voice to thislaw when he opined that:

“The member of a political party is bound by the party’sConstitution and guidelines. He cannot circumventany of them to his own benefit.”

Members of a political party are bound by the provisions of its

Constitution. In the instant case, the Constitution of the 1st respondentis exhibit C annexed to the appellant’s affidavit in support of theoriginating summons. In exhibit C, there is a laid down procedurein Article – 21 (B) for the hearing and determination of complaintsand allegations. Article 21 (B) of the 1st respondent Constitutionwhich is also binding on the appellant as a card carrying andstatutory member as admitted in his affidavit states as follows:

“21(B) Disciplinary Procedure

The procedure for the hearing and determination ofcomplaints or allegations are as follows:-

A complaint by any member of the party againsta Public Office holder, elected or appointed, or(i)another member or against a Party organ or

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officer of the Party shall be submitted to theExecutive Committee of that Party at all levelsconcerned and shall NOT LATER THAN 7days of the receipt of the complaint, appointa fact finding or Disciplinary Committee toexamine the matter.

The Executive Committee concerned shallnot debate or discuss the complaint orallegation before sending it to the DisciplinaryCommittee or fact-finding Committee whichshall hear, determine and cause its decisionto be transmitted to the relevant Executive(ii)Committees of the party concerned.

The Executive Committee concerned uponreceipt of the report of the fact finding orDisciplinary Committee shall not later than 14days thereof either ratify or reject the decision(iii)of the fact-finding or Disciplinary Committee.

The Executive Committee of the Party atall level where a complaint or allegation ismade shall have original jurisdiction to hearand determine such complaint or allegationprovided that the assumption of jurisdiction bysuch Executive Committee shall not breach the(iv)rules of fair hearing.

Where either the complainant or the partyagainst whom a complaint is made, makesout a prima facie case of bias, intimidation orundue influence or likelihood of same by theExecutive Committee seized with originaljurisdiction to hear and determine such a matteror a member thereof or where the complaintis against a party organ. At the level, makingit impracticable to appoint a fact finding orDisciplinary Committee, such complaintshall be transferred to the appropriate organseized with appellate jurisdiction to hearand determine such matter save in the case(v)of allegation against the Principal Officer(s)

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in the National Executive Committee of theParty making it unjust to allow such PrincipalOfficer(s) to participate in the appointment ofa fact-finding or Disciplinary Committee shallexclude the entire Principal Officer from theentire arbitral process.

For the purpose of ARTICLE 21 of this(vi)Constitution.

The Ward Executive shall be theadjudicatory body of first instance overcompla…

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