Effect of Failure of a Political Party to Conduct Credible Primaries

CASE TITLE: MANSUR v. PDP & ORS (2023) LPELR-59791(CA)

JUDGMENT DATE: 17TH FEBRUARY, 2023

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on pre-election matters..

FACTS:

This is an appeal against the decision of the Federal High Court, Kano (trial Court), in Suit No. FHC/KN/CS/183/2022, delivered on 30th December, 2022 by Hon. Justice A.M. Liman.

At the trial Court, the Appellant, as Plaintiff, had filed a Pre-election suit, challenging the declaration of the 2nd Respondent as the flagbearer of the 1st Respondent for the House of Representative election, representing Dala Federal Constituency, in the forthcoming 2023 general elections. The appellant had obtained the form, filled same, and was screened and cleared to contest the primary election. He said that on the date fixed for the primary election, he scored the highest number of votes (28 of the 37 delegates) and was declared the winner of the election, but his name was wrongly substituted with that of the 2nd Respondent, who did not win any vote at the primary election. He said that the 3rd Respondent (INEC) monitored the primary election that produced him as the winner, but rather published the name of the 2nd Respondent.

After hearing the parties and perusing the processes filed by them, including the process filed by the 1st Respondent (INEC), the learned trial Court granted the reliefs sought, in part, but ordered for the conduct of the fresh primary election, to select a candidate for 1st Respondent for Dala Federal Constituency seat of the House of Representatives, for the 2023 General Election.

Being dissatisfied with the decision of the trial Court, the appellant appealed to the Court of Appeal. The 2nd Respondent also filed a Cross-Appeal.

ISSUES:

The Court determined the appeal based on the following issues for determination:

1) Whether the trial Court was not wrong to order for the conduct of a fresh primary election in the circumstances of this case when the claim of the Appellant at the lower Court was practically admitted by the Respondents as per their affidavits and documentary evidence.

2) And if the above Issue (1) is resolved in the affirmative, whether this Court can invoke Section 15 of the Court of Appeal Act 2004 to give the judgment the trial Court ought to have made, in the interest of justice?

The Court determined the cross-appeal based on the following issues for determination:

Whether the trial Court was right when it held the present suit cannot be caught by the principle of Issue estoppels, despite all its constituents being in the matter.

DECISION/HELD:

In the final analysis, the Court allowed the appeal and dismissed the cross-appeal.

RATIOS:

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Whether a political party that failed to conduct credible primaries to select its candidate at the time allowed can be indulged with another opportunity to do so

“We have held several times, that a party that fails to utilize the opportunity given to it to select its candidate at a primary election, cannot be indulged with another opportunity to do so. See the case of Obe Vs Abubakar (2023) LPELR – 59563 (CA): “…Was the trial Judge right in ordering a fresh primary election in the circumstances of this case, to select a candidate for 2nd Respondent? I strongly doubt as the 2nd Respondent appears to have forfeited its opportunity to select a candidate for the election, having blundered and used up (or misused) the time given to it to do so.

We further held in that case: The 2nd Respondent appears to have forfeited its opportunity to select a candidate for the election, having blundered and used up (or misused) the time given to it to do so. See the case of Muhammad Vs PDP & Ors (2022) LPELR-58984 CA, where we held: “I cannot see how a Political Party that failed to comply with the mandatory provision of the Electoral Act, to select its flagbearer, because of in-fighting by its leaders, and sabotage of the process, as result of intrigues and moves to impose candidate that did not win the primaries conducted by authentic Panel (led by Nasiru Muhmmad Sparraw), can deserve a second chance, to conduct a fresh primary election, after the deadline given by INEC to do so has lapsed. See Section 84(13) of the Electoral Act, 2022 says: “Where a Political Party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in the issue.”

Section 84(5) (c)(i) (ii) of the Electoral Act states: “A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined: (c) in the case of nominations to the position of a Senatorial Candidate, a Member of the House of Representative and a Member of a State House of Assembly, where it intends to sponsor candidates:- (i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates, and (ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirants’ name shall be forwarded to the Commission as the candidate of the party.” Of course, the facts of this case, show that the 1st Respondent had bungled the conduct of the said primaries election, as earlier stated in this judgment, and so failed to comply with the provisions of Section 84(13) of the Electoral Act.

The 1st Respondent had therefore used up its chance to produce any credible candidate to stand election for the said election to the House of Representatives for Hadejia/Auyo/Kafin/Hausa Federal Constituency of Jigawa State, having failed to conduct an acceptable primary election at the time stipulated and/or transmit the name of the winner of that election to the 2nd Respondent (INEC). The 1st Respondent cannot, therefore, be rewarded for its intransigence by way of time to conduct the fresh primary election, as the order of the learned trial Judge would appear to imply, in my opinion. Going by the provision of Section 33 of the Electoral Act, it would appear that the only circumstance in which a political party can be allowed to conduct a fresh primary to select a candidate to stand for election is in the case of withdrawal or death of a candidate.

See the proviso to that Section 33 of the Electoral Act, which says: “In the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned.” That suggests also that a Political Party that failed to conduct credible primaries to select its candidate, at the time allowed all the Political Parties to do so, has forfeited its chance, and cannot complain! And when the window for withdrawal of candidates has expired, there cannot be any withdrawal or substitution of the candidate, or room to conduct fresh primaries to fill an office, except in the occurrence of death, before the general election, planned. See again Sections 33 and 34 of the Electoral Act, 2022.”

• COURT – COURT OF APPEAL – Power of the Court of Appeal as provided for under Section 15 of the Court of Appeal Act; conditions necessary for the exercise of same

“Under Section 15 of the Court of Appeal Act, 2004, this Court is empowered to make order which the trial Court ought to have made, in the circumstance of the case, but failed to do so. See the case of Ezeigwe Vs Nwawulu & Ors (2010) LPELR – 1201 (SC), where it was held: “Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.”

In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court ortrial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per ONNOGHEN, JSC.”

• APPEAL – UNAPPEALED FINDING(S)/DECISION(S) – Effect of unappealed finding(s)/decision(s) of court

“The Cross Appellant argument did not fault or contest any of the above facts/findings of the trial Court, and so they remain valid and binding. The law is trite, that a decision of the Court and/or finding not appealed against, remains binding and conclusive.

See the case of Obe Vs Abubakar & Ors (2023) LPELR – 59563 (CA): “By law, that finding remains binding and conclusive. See Charnell Brothers Trading Co. Nig. Ltd Vs AMCON (2022) LPELR – 57092 CA: “Of course, the Appellant did not appeal against the fundamental findings and decision of the trial Court and the same remains binding and conclusive. See the case of Dabo Vs Abdullahi (2005) LPELR -903 SC; Anyanwu Vs Onyeagocha & Ors (2015) LPELR – 26018 (CA); Nmanumeihe Vs Njemanze (2016) LPELR – 40212 (CA); Michael Vs State (2008) LPELR – 1874 (SC); and Opara Vs Dowel Schlumberger Ltd & Anor (2006) LPELR – 2746 SC, where it was held: “It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court.

In effect the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139- 140 it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.” Per ONNOGHEN, JSC.” See also Opara Vs Dowel Schlumberger Nig. Ltd & Anor (2006) LPELR – 2746 (SC).”