Do Not Read Into A Judgment What Was Not Intended: Asue Ighodalo Was Not Disqualified

By Olayiwola Afolabi, SAN 

The Judgment of a court is a public document. Whenever a judgment is delivered, it is necessary to read the judgment and understand its contents before making comments on same. Unfortunately, not everyone seems to do so. Majority of people seem to rely on what they were told or by what is circulated on social media.

On the 4^th day of July, 2024 the Federal High Court delivered a judgment in Suit No: FHC/ABJ/CS/165/2024 between Honorable Kelvin Mohammed & 2ors for (themselves and on behalf of the 378 Ad Hoc Delegates whose names appear on Exhibits BID 8A to 8L) v. The Independent Electoral National Commission (I.N.E.C) & 3 ors.  

The suit was filed on the 8^th day of February, 2024 and on the day Judgment was delivered, the court made the following orders to wit:

1. A DECLARATION is hereby made that by virtue of the provisions of Article 50 (3) of the Constitution of the 2^nd Defendant (as amended in 2017), the Plaintiffs together with other lawfully elected delegates, whose names and election results appear on Exhibits BID 8A to 8L herein, are the lawfully elected Ward Congress Delegates in their respective wards and by virtue of Which the defendants cannot exclude them from participating as 3 Ad-Hoc Ward Delegates at the Governorship primary election of Edo State slated for 22^nd of February, 2024 or any other date.

2. An Order is hereby made directing the Defendants who are bound by the provisions of Section 82 if the Electoral Act, 2022 and Article 50 (3) of the 2^nd Defendant’s Constitution (as amended in 2017) to abide by the outcome of the 3 Ad-Hoc Delegates Ward Congress of February 4, 2024, at which the Plaintiffs and the other 378 delegates, whose names and election results appear on Exhibits BID 8A to 8L were elected and to allow the Plaintiffs and the 375 other lawfully elected delegates participate in the primary election of February 22, 2024.

3. An Order of Mandatory Injunction is hereby made restraining the 1^st, 2^nd and 3^rd Defendants from unlawfully excluding the Plaintiffs and the other lawfully elected delegates whose names and election results appear on Exhibits BID 8A to 8L herein, from participating as 3 Ad-Hoc Ward Delegates in the Governorship election primaries of the 2^nd Defendant slated for the 22^nd of February, 2024 or any other date.

For a proper understanding and ease of reference, the 2^nd defendant in the suit is “The Peoples Democratic Party (PDP)”, the 3^rd Defendant is “The National Secretary of the PDP”, While the 4^th defendant is “The Vice Chairman, PDP South-South”.  Before demystifying what each order means, It is necessary to understand what led to the filing of the suit wherein the judgment of the court which majority of the populace have misconstrued, was delivered.

WHAT LED TO THE ACTION IN COURT

The Plaintiffs alleged that on the 16^th day of November, 2023, the 2^nd Defendant’s National Working Committee (PDP’S NWC) released its timetable of activities in preparation for the Edo State Governorship Primary Scheduled to hold on 22^nd February, 2024. The Plaintiffs as members of PDP together with the other 378 delegates, purchased, filled and submitted their Nomination Forms to PDP’s Secretariat. That on 4^th February, 2024, the 1^st Plaintiff and other persons seeking to be amongst the 3 ad-hoc ward delegates presented themselves in line with PDP’S Constitution and emerged as one of the 3 ad-hoc delegates in Ward 11 Estako West, LG, while the 2^nd and 3^rd Plaintiff were said to have emerged as one of the 3 Ad-Hoc Delegates in Ward 3 Esan North East LGA and Ward 9 Ovia North East LGA, respectively. However, after the election results were released (the election results of the delegates that are to vote for the aspirants), the 4^th defendant (the Vice Chairman, PDP South-South) during a meeting with some of the Governorship aspirants, threatened to set aside the outcome of the election that saw the plaintiffs and the other 378 delegates emerge as those entitled to vote for the aspirants. This made the Plaintiffs together with other successful delegates to become apprehensive. The Plaintiffs on 5^th February, 2024 got the commitment of the other duly elected delegates from 12 Local Government Areas of Edo State, with a total of 127 wards and 381 elected delegates, altogether.  It was as a result of this that the Plaintiffs went to court to restraining the defendants from excluding them from participating in the primaries of 22^nd February, 2024 and put some questions before the court for determination herein summarized:

1. Whether INEC is lawfully entitled to monitor and prepare a report of the Edo State 2024 Governorship Primary election of PDP in which the Plaintiffs and other lawful delegates whose names and election results of 4 February, 2024 are in the process of being excluded from participating in the primaries.
2. Whether the plaintiffs and other lawful delegates are not legally entitled to be participants at the primary election of PDP to elect the Governorship election scheduled for 22^nd February, 2024.
3. Whether the 3 ad-hoc delegates congress of PDP that took place on the 4^th of February, 2024 was done in conformity with PDP’S constitution.
4. Whether by virtue of the PDP constitution, an exclusion of the Plaintiffs and other lawfully elected delegates whose names and election results, from participating in the scheduled Governorship primary election of the 22^nd of February, 2024 by the defendants, such primary election can be said to be lawful, valid, legitimate or constitutional.

PDP in their own defence stated that the plaintiffs are not delegates and that the plaintiffs did not participate in the ward congresses held on 4^th February, 2024 and were not elected as Ward Ad-Hoc Delegates.

 It is apposite to note that the question bothering on who is a delegate and who is not is due to the fact that the selection of an aspirant for the Governorship Election in Edo State was by indirect primaries. For a better understanding of the difference between Direct and Indirect primaries, reference is made to S. 84(4) and S. 84(5) of the Electoral Act, 2022. By Virtue of S. 84(4) of the Electoral Act, 2022, a political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.  In such an instance, all registered members of the political party vote for aspirants of their choice. Conversely, S. 84(5) of the Electoral Act, 2022 states that a political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined. It went ahead to state that with respect to the position of a Governorship Candidate, the political party shall hold a congress in the state capital or any other place within the state with delegates voting for aspirants of their choice at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party. 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 name shall be forwarded to the Independent National Electoral commission (I.N.E.C) of the candidate of the party, for the particular state. See Kente v. Bwacha (2023) 9 NWLR (Part 1889) 329. 

ASUE IGHODALO REMAINS THE FLAG BEARER OF P.D.P

At the beginning of this piece, I reproduced the orders granted by the Court after considering the case of both parties to the suit. The Federal High Court did not state that there was no primary election held in Edo State by PDP, It did not state that PDP has no valid nominated candidate for the 2024 Governorship Election nor did it make a declaration that no candidate presented by PDP in respect of the Governorship of Edo State should be accepted by INEC, It did not restrain Asue Ighodalo from holding out, or carrying on or parading himself as the Governorship Candidate of PDP for the 2024 Governorship Election in Edo State. It also did not make any order that INEC should not recognize Asue Ighodalo for the 2024 Governorship Election in Edo State. It did not make any order compelling INEC to delist the name of Asue Ighodalo or PDP (If submitted or accepted) from amongst the list of political parties and gubernatorial candidates respectively for the 2024 Governorship Election. Last but not the least, the Federal High Court did not order the conduct of a fresh election. As it was not so stated, Oral Evidence cannot be used to contradict, alter, add or vary the contents. See S. 128 of the Evidence Act, 2011.

We may be quick to ask why. However, the reason is simply because the court is not a Father Christmas that will grant a party what he or she did not ask for. See A.P.C v. Solomon (2023) LPELR 61404(CA). The Plaintiffs in this suit asked for 5 reliefs. The summary of each is that

1. The plaintiffs are not to be excluded from participating in 22^nd February, 2024 primary election to be conducted by P.D.P, upon being lawfully elected delegates at the February 4, 2024 Edo 3 Ad-Hoc Delegates Congress.
2. The Plaintiffs together with the lawfully elected delegates, whose names and election results appear on Exhibits BID 8A to 8L are the lawfully elected Ward Congress Delegates in their respective wards and by virtue of which the Defendants cannot exclude them from participating as the 3 Ad-Hoc Ward Delegates at the Governorship primary election of Edo State slated for the 22^nd February, 2024 or any other date.
3. The Court should make an order that the defendants should, based on the outcome of the 3 Ad-Hoc Delegates Ward Congress of February 4, 2024, allow the Plaintiffs and the 375 other lawfully elected delegates participate in the primary election of February 22, 2024.
4. The Court should mandatorily restrain I.N.E.C, P.D.P, National Secretary of P.D.P and the Vice Chairman, P.D.P South-South from unlawfully excluding the plaintiffs and the other lawfully elected delegates from participating in the Governorship election primaries of P.D.P slated for the 22^nd of February, 2024 or any other date.
5. They asked for the Omnibus Prayer “And for any further Order(s) that this honourable court may deem fit to make in the circumstance of this case.

Having reproduced the reliefs sought by the Plaintiffs, it is obvious that what they actually requested from the court was centered around them being allowed to vote in the Governorship Election Primaries of P.D.P slated for 22^nd of February, 2024. Looking at it critically also, their grievance is not targeted at any Aspirant seeking to contest for the position of Governor. All the Plaintiffs are saying is that they should be allowed to partake in voting for whoever is interested in becoming the Governorship candidate for P.D.P. In the case of Olatunji v. Owena Bank of Nigeria Plc & Anor (2002) LPELR-10991(CA), Onnoghen, JCA (as he then was) in making reference to the decision of the Apex Court in Ekpenyong & Ors v. Nyong & Anor (1975) 2 SC 71 stated that the Court is bound by the relief claimed and no matter how inelegantly drafted, cannot grant more or differently from that claimed.

JURISDICTION OF THE COURT TO ENTERTAIN THE SUIT/MAKE AN ORDER AGAINST ASUE IGHODALO IN HIS ABSENCE

Jurisdiction as we all know is very fundamental in the adjudication of any dispute. In the case of Ajomale v. Yaduat (No. 1) (1991) 5  NWLR (Part 191) 257 at page 264 para d-f, Karibi-Whyte, J.S.C (of blessed memory) in distinguishing between jurisdiction and juridical powers stated

“Where a court has no jurisdiction, with respect to a matter before it, the juridical basis for the exercise of any power with respect to such matter is absent. This is because power can only be exercised where the court has jurisdiction to do so. See Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 S.C. 158, (1985) 6 NCLRI. Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the court to hear and determine the dispute between the parties, the power in the court is the authority to make certain orders and decisions with respect to the matter before the court”

In other words, if a court has no jurisdiction to entertain a matter ab initio, it does not have the power to make any order with respect to that matter. A court making an order without having jurisdiction is like placing something on nothing as Lord Denning had stated in the popular case of MacFoy v. United Africa Co Ltd [1961] 3 All ER 1169 (PC). Relating it to this piece, the question to be asked is whether the Federal High Court had the jurisdiction to entertain the suit filed by the plaintiffs.

ISSUES BOTHERING ON THE CHOICE OF POLITICAL PARTIES AD HOC DELEGATES ARE INTERNAL AFFAIRS OF POLITICAL PARTIES WHICH COURTS HAVE NO JURISDICTION OVER

Not unusual, the issue of choosing ad hoc delegates has come up before  the Supreme Court of Nigeria and the Apex Court made a pronouncement on same. In the case of Osagie & Ors v. Enoghama & Ors (2022) LPELR-58903(SC), the appellants commenced an action at the Federal High Court Abuja on the 4^th day of May, 2022 and complained that they were 576 persons elected as ad hoc delegates of the 1^st respondent from 192 wards of Edo State on 30^th day of April, 2022 in the ward. That they fear that they would not be allowed to vote as ad hoc delegates in the various primary elections of the 1^st respondent coming up in May 2022 and that their several written complaints were not answered.

The Federal High Court, Abuja in the above suit found that the Ward Congresses conducted by the 1^st respondent’s Edo State Working Committee which elected the appellants herein as ad hoc delegates is the authentic and valid ward congress and not the ward congress conducted by the 1^st respondent’s National working Committee (NWC) instituted ward congress electoral committee for Edo state that elected the 5^th to 8^th respondents and others as ad hoc delegates. The Federal High Court granted the Claims of the Plaintiff. On appeal to the Court of Appeal, the decision of the Federal High Court was set aside on the basis that the question of which persons were elected ward ad hoc delegates on 30-4-2022 in 192 wards of Edo State  and which of the two ward congresses held in the said wards on that day is the authentic and valid one, is an intra-party dispute concerning its internal domestic affairs which the trial court should not have entertained and determined , as it had no jurisdiction to do so.

As it is expected, the aggrieved party appealed to the Supreme Court. My Lord Hon. Justice Akomaye Agim, J.S.C in delivering the leading judgment stated

“In this case, no primary election had been held before the suit was filed and no candidate had been elected from any primary election contrary to the Electoral Act, the party constitution and guidelines. So, there was no cause for an action under S.84 (14) of the Electoral Act. The appellants not being aspirants in any primary election that had selected a candidate of the party for an election contrary to the Electoral Act or the Party guidelines, have no right of action concerning any such primary election…There is no law that gives delegates elected to vote in a primary election of candidates of political party for a general election, the right of action to protect or preserve their status as such delegates or protect their right to vote during such primary elections. The refusal of their political party to recognize them as such delegates or to allow them vote in a primary election to elect the party’s candidates, would not give such delegates legal cause of action. But such refusal can create a legal cause of action by an aspirant in the primary election after a candidate has been selected under S. 84(14) of the Electoral Act…The Court of Appeal correctly held that it is non-justiciable and therefore not within the jurisdiction of the trial court and that the trial court wrongly assumed jurisdiction to entertain and determine the suit before it.

In Law, the doctrine of stare decisis or judicial precedent is an indispensible foundation on which to decide what the law is, in that unless there is certainty in the law there will be no equilibrium in the society. Thus, in its operation it imposes a duty on the lower court to follow and abide by the binding ratio decidendi of the decision of a higher court when dealing with similar facts, though the lower court is entitled to distinguish , where such facts exit, the decision of the higher court on the facts in order to do justice when the peculiar facts of the case before it so warrant. In the main it enhances consistency and coherent corpus juris and presents continuity and manifest respect for past decisions in our legal system. See Onukwe v. Nigerian Navy (2024) 7 NWLR (Part 1938) 501.

By the above, the facts in Osagie v. Enoghama (Supra) are very similar to the facts in the instant suit wherein judgment was delivered on the 4^th of July, 2024. Hence it is safe to apply the conclusion of the Apex court in Osagie’s case to the instant case.

ASUE IGHODALO WAS NOT A PARTY TO THE INSTANT SUIT

Thus far, three things are established to wit:

1. The grouse of the plaintiff was not against Asue Ighodalo
2. The plaintiffs also lack the locus to sue,
3. They have no relief against Asue Ighodalo nor was his name mentioned anywhere in the Suit.

Now, assuming but not conceding that the plaintiffs have the locus and sought reliefs against Asue Ighodalo, can they obtain an order which affects Asue Ighodalo without making him a party to the case.  In law, just like it is an adage, you cannot shave a man’s head behind him.  See the case of Jegede v. I.N.E.C (2021) 14 NWLR (Part 1797) 409.

 In the case of A.P.C v. Aguma (2020) LPELR-52574 (CA), the Court of Appeal stated “Even if it can be said that the 1^st Respondent has no locus standi or reasonable cause of action(they are not conceded) the failure to join the twenty seven (27) other members of the Appellant in Rivers State Chapter who the 1^st respondent claimed are members of the state executive committee and whose membership of the state executive committee are also statutory are not affected by term limits according to deposition by 1^st respondent in paragraph 15 of the supporting affidavit, is fatal to the 1^st Respondent suit because all the persons therein mentioned are necessary and indispensable parties to the proceedings. Their rights cannot be determined in their absence…”.

To conclude the issue of jurisdiction, i make reference to the case of Magaji v. A.P.C (2024) 1 N.W.L.R (Part 1918) 1 wherein it was the Aspirant (Magaji) for the Nasarawa West Senatorial Primary Election as Plaintiff that sued the winner of the primary election (Arc. Shehu Ahmed Tukur). Also, in the case of Kente v. Bwacha (Supra), Kente who was an aspirant for the Governorship election of Taraba State on the platform of A.P.C, sued Bwacha who was held to have been elected as the Governorship candidate of A.P.C. The Parties were Kente as Plaintiff, Bwacha as 1 defendant, I.N.E.C as 2^nd Defendant and A.P.C as 3^rd defendant. This is how it ought to be.

IT IS TOO LATE NOW TO CHALLENGE THE CANDIDACY OF ASUE IGHODALO

Election Petitions and Pre-Election matters are sui generis. Amongst several other unique features is the fact that it is time bound. Unlike the regular civil cases wherein cases last for years and time can easy be extended, in election and pre-election cases, the time for doing any act must be strictly complied with or the defaulting party will have his or herself to blame. In the case of A.N.P.P v. Goni (2012) 7 NWLR (Part 1298) 147 at 182, the Apex court per Onnoghen, J.S.C (as he then was) stated:

“…that the time fixed by the constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the court is thereby robed of the jurisdiction to continue to entertain the matter…Do the courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative”.

When it comes to Election and Pre-Election matters, the 1999 constitution as amended has set the time frame which no court can extend. The time frame for Election and Pre-Election matters is stated in Section 285 (5) and Section 285 (9) of the 1999 constitution (as amended) respectively as follows:

285(5) – An election petition shall be filed within 21days after the date of the declaration of result of the election.

285 (9) – Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.

The next issue will then be when time begins to count. In the case of Lokpobiri v. A.P.C (2021) 3 N.W.L.R (Part 1764) 538, the Apex court held that time begins to run from the time the breach of any duty or an act occurs, which warrants the person who is injured or the victim to take a court action to protect his right that has been breached.

 It is also apposite to note that in pre-election matters, the date of the incident challenged is reckoned in the computation of time provided and time begins to run from that date and not the next day. See Owolabi v. Seun (2023) 11 NWLR (Part 1896) 539 (SC). In that case, the event complained of occurred on 23^rd May, 2022 and the suit was filed on 6^th June, 2022. The Apex court held that when the suit was filed on 6^th June, 2022 is 15days inclusive of the day of the event. In effect, the appellant commenced his action outside the 14days prescribed by the constitution. Therefore, the action is statute barred.

Relating it to the instant suit, the cause of action arose on the 22^nd of February, 2024 which was the day the primary election took place and some delegates where alleged not to have voted. In such instance, any aspirant who desired to seek redress in court ought to have filed his action in court on or before 6^th of March, 2024. Since no aspirant filed, the courts cannot can extend time for any of them to do so.

Let me conclude this piece by making reference to rule 1 and 30 of the Rules of professional conduct for Legal Practitioners, 2023:

Rule 1 – A lawyer shall uphold and observe the rule of law, promote, and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.

Rule 30 – A lawyer is an officer of the court and, accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.

Olayiwola Afolabi, SAN 08141122620, 08027448211, 08055210765

18C Yoruba Street, Off Iyaro, Benin City, Edo State.