Whether an Aspirant Must Exhaust a Party’s Internal Dispute Resolution Mechanism before Challenging the Conduct of Its Primary in Court

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Whether an Aspirant Can Challenge the Conduct of a Party Primary in Court Without Exhausting the Party’s Internal Dispute Resolution Mechanism

CASE TITLE: WEST v. FUBARA & ORS (2023) LPELR-59285(CA)

JUDGMENT DATE:  9TH JANUARY 2023

JUSTICES: 

  • MUHAMMED LAWAL SHUAIBU, JCA
  • MUHAMMAD IBRAHIM SIRAJO, JCA
  • ABDUL-AZEEZ WAZIRI, JCA

DIVISION: PORT HARCOURT

PRACTICE AREA: ELECTORAL MATTER

FACTS:

 The Appellant was an aspirant at the Governorship primaries of the PDP, the 2nd Respondent, for Rivers State which was conducted on 25/05/2022 at Port Harcourt by a Committee headed by the 5th Respondent as the Chairman of the Gubernatorial Primary Election Committee for Rivers State. At the end of the primaries, the 1st Respondent was declared the winner with 721 votes. Other aspirants, Isaac Kamalu, George Kelly, Tamunobaabo Danagogo, came 2nd, 3rd, and 4th with 86 votes, 37 votes, and 36 votes, respectively. The Appellant came 5th with four (4) votes.

The Appellant alleging non-compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022, the 2nd Respondent’s Constitution and its Electoral Guidelines for Primary Election, in the conduct of the said primaries, instituted an action at the Federal High Court via an originating summons seeking several declaratory reliefs and orders.

The Respondents in response, however contended that the Appellant waived his right by writing an undertaking not to challenge the outcome of the primary election. That no petition was written to the Gubernatorial Electoral Appeal Panel by the Appellant as there is no evidence of acknowledgment of receipt of the letter. And that the Appellant did not exhaust the dispute resolution mechanism provided by the 2nd Respondent’s Constitution before instituting the suit at the trial Court.

After hearing, the trial Court dismissed the claims of the Appellant. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.

 ISSUES FOR DETERMINATION:

 The Court determined the appeal on the sole issue:

“Whether from the facts disclosed in/by the opposing affidavits of the contesting parties, vis-à-vis the reliefs sought by the Appellant, the lower Court was right in dismissing the suit of the Appellant.”

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 COUNSEL SUBMISSION

Learned counsel for the Appellant relying on the case of APC & Ors vs. Karfi & Ors (2015) LPELR-41857 (CA), submitted that it has been held under Section 87 (9) of the repealed Electoral Act, 2010, (now Section 84 (14), Electoral Act, 2022) that an aggrieved aspirant is not bound to first resort to the internal dispute resolution mechanism of his political party before approaching the Court to seek redress on his grievance, as Section 84 (14) of the Electoral Act is not subject to the Constitution or Guidelines of any political party. Counsel urged the Court to hold that the Appellant’s failure to exhaust internal mechanism for resolution of dispute does not deprive the trial Court of its jurisdiction to hear the Appellant’s case.

1st, 2nd, 4th and 5th Respondents’ counsel in response, submitted that the Appellant failed to file an appeal before the Appeal Panel against the conduct of the primary election as provided for under Section 61 (1) of the PDP Constitution and Article 5 (ii) and (iii) of the PDP Electoral Guidelines for primary elections, thereby failing to fulfill the condition precedent for the commencement of this suit. He cited Dalhatu vs. Turaki (2003) 15 NWLR (Pt.843) 310 @ 347.

 DECISION/HELD:

 On the whole, the appeal was dismissed and the judgment of the Federal High Court was upheld.

RATIO:

ELECTORAL MATTERS- POLITICAL PARTY PRIMARY: Whether an aspirant who is dissatisfied with the conduct of a primary election by a political party has unimpeded access to Court without first going through the dispute resolution procedures of his political party

“By the express provision of Section 84 (14) of the Electoral Act, an aspirant in a primary election who complains that any of the provisions of the Electoral Act and guidelines of a political party have not been complied with in the selection or nomination of a candidate, may apply to the Federal High Court for redress, notwithstanding other provisions of the Electoral Act or any rule of a political party to the contrary. This provision appears to have given a blanket and direct access to the Court by an aspirant who is aggrieved with the conduct of the primary election of his political party, if he can show proof that he has participated in the primary election as an aspirant, without having to go through the entire gamut or procedures of internal dispute resolution mechanism as provided in the Constitution, Rules or Guidelines of his political party. That, in my pedestrian view, appears to be the intention of the Legislature when in granting an aspirant access to the Federal High Court to ventilate his grievances with the conduct of his party’s selection or nomination of candidate in Section 84 (14) of the Electoral Act, it excludes the application of other sections of the Electoral Act as well as the Rules and Guidelines of political parties by the use of the operative word ‘Notwithstanding.’ For purpose of completeness, the section provides:

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“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”

The Legislature commenced this provision by the word “Notwithstanding”: an adverb, whose connotation has been expounded thus: The word or expression “Notwithstanding” is a term of exclusion in legal drafting; it simply means “in spite of or irrespective of or regardless of”, see N.N.P.C. v. Lutin Invest. Ltd (2006) 2 NWLR (Pt. 965) 506 at 529. In N.D.I.C. v. Okem Ent. Ltd. (2004) LPELR-1999 (SC), @ P.55, Uwaifo, JSC, defined the word or term.

‘Notwithstanding’ while interpreting the provision of Section 251 of the Constitution, thus:

“As has been observed, Section 251(1) of the 1999 Constitution begins with “Notwithstanding anything to the contrary contained in this Constitution” while Section 272(1) of the 1999 Constitution is specifically made “subject to the provisions of Section 251.” When the term “notwithstanding” is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said Section.”

See also NNPC vs. Orhiowasele & Ors (2013) LPELR-24710 (SC); Obi vs. INEC (2007) LPELR-24347 (SC); Saraki vs Federal Republic of Nigeria (2016) LPELR-40013 (SC). These authorities signify that other provisions of the Electoral Act or rules of any political party must bow to the superiority of the provision in respect of complaint by an aspirant emanating from the conduct of primary election. In other words, an aspirant who is incensed with the conduct of a primary election has an unimpeded access to a Court of law to ventilate his grouse without the necessity of first going through the dispute resolution procedures of his political party. Galadima, JSC, has clearly stated the law while interpreting the provision of Section 87 (9) of the Electoral Act, 2010, which is in pari materia with the provision of Section 84 (14) of the Electoral Act, 2022, in the case of Gassol v. Tutare (2013) LPELR-20232 (SC), where, at page 25 of the E-Report, the learned Law lord declared:

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“Having found that the provision of Section 87(9) of the Electoral Act (supra) is clear and unambiguous this Court has the duty to give it literal interpretation. Having expressly listed the Courts with the jurisdiction respecting pre-electoral matters, therefore, there cannot be any legally constituted body either by a political party or subject to the fulfillment of any conditions before the matter may be instituted before the Federal High Court.”

​This pronouncement of the apex Court clearly banishes the internal dispute resolution mechanism, donated to the aggrieved members of the 2nd Respondent, which the 1st, 2nd, 4th and 5th Respondents erected as a clog to the jurisdiction of the lower Court to entertain the Appellant’s action. This authority solidifies and entrenched an aspirant’s unfettered right of access to Courts to ventilate grievances arising from primary election, a right which does not inure to other members of a political party who do not attain the status of “aspirant”…” Per SIRAJO, J.C.A.

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