HELD:

"It bears pointing out at the outset that originating summons, being one of the modes by which a civil action may be commenced, is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the Court. See RE KING MELLOR v SOUTH AUSTRALIAN LAND MORTGAGE & AGENCY CO (1907) 1 Ch. 72 at 75 - per Neville, J. cited with approval in NATIONAL BANK OF NIGERIA v ALAKIJA & ANOR (1978) 9-10 SC 59 at 73 - per Eso, JSC. It is generally accepted that originating summons is reserved for issues like the determination of short questions of construction but not matters of such controversy that the justice of the case would demand the settling of pleadings, and should only be applicable in such circumstances as where there is no substantial dispute on questions of fact or the likelihood of such dispute. See NATIONAL BANK OF NIGERIA v ALAKIJA & ANOR supra and ANATOGU v ANATOGU [1997] 9 NWLR (PT. 519) 49. It would seem that the emphasis is not on the existence of dispute per se since every case necessarily involves one dispute or the other, but whether there is a substantial dispute of fact relevant to the determination of the issue in controversy. See HABIB NIGERIA BANK LIMITED v. OCHETE [2001] FWLR (PT. 54) 384 at 406 - 407, INAKOJU v. ADELEKE [2007] ALL FWLR (PT. 353) 3 at 202. Adekeye, JSC stated the law succinctly in the case of EZEIGWE v. NWAWULU [2010] ALL FWLR (PT. 518) 794 at 838-839 as follows: "...The main advantage is simplicity resulting from the elimination of pleadings. The procedure of originating summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who without the need for pleadings, merely want, for example, a directive of the Court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need know beforehand the issues which they are called upon to contend with from the pleadings. There can be disputed facts which originating summons procedure could resolve, but where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In order words, originating summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute." See PDP & ORS v. MUNTARI (2021) LPELR-56163(CA)

FACTS:

PDP & ORS v. MUNTARI (2021) (CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, October 08, 2021

CA/K/84/2021

Before Our Lordships

Fatima Omoro AkinbamiJustice of the Court of Appeal

Abubakar Mahmud TalbaJustice of the Court of Appeal

Peter Oyinkenimiemi AffenJustice of the Court of Appeal

Between

1. PEOPLE'S DEMOCRATIC PARTY 2. SALISU YUSUF MAJIGIRI 3. SALISU LAWAL ULI 4. LAWAL MAGAJI BAURE 5. LAWAL MAI-LYALI DANMUSA 6. ADAMU ILIYASU 7. SANUSI ALI 8. ABUBAKAR YUSUF BINDAWA 9. JAFARU RUNKA 10. MANIR AHMED I. 11. YAHAYA LAWAL 12. BASHIR HARU 13. TIJJANI MASHASHA RIMI 14. SHITU IDRIS BANGORI 15. ABUBAKAR LAWAL 16. SHITU S. MAGAMI 17. BISHIR SADA TSANNI 18. AHMED TARIKA FUNTUA 19. LAWAL BATURE 20. BAGA UMAR KUSADA-APPELANT(S)

And

ABDULAZIZ MUNTARI-RESPONDENT(S)

JUDGEMENT SUMMARY

INTRODUCTION:

This appeal borders on disputes arising from Political Party Congress. 

FACTS:

This appeal is against two rulings of the High Court of Katsina State (coram: A. B. Abdulahi, J.) delivered on 3/2/21 and 5/2/21 in respect of two separate preliminary objections, as well as the final judgment entered on 5/2/21 in Suit No. KTH/41/2020.

The 2nd - 20th Appellants and the Respondent are (or claim to be) card carrying members of the 1st Appellant, Peoples' Democratic Party (PDP), which is the leading opposition party in Nigeria. The 1st Appellant held its elective State Congress for Katsina State on 27/7/20 from which the 2nd - 20th Appellants emerged as duly elected members of the State Executive Committee. The Respondent alleged that he was an aspirant at the elective congress, having paid the sum of N200,000 to the 1st Appellant which issued him a Nomination Form for the post of State Youth Leader, but he was not invited for screening and eventually excluded by the 1st Appellant and deprived of his right to vote and be voted for at the State Congress election, and that by conducting the State Congress as it did, the 1st Appellant not only violated the provisions of its Constitution and Guidelines as well as the Electoral Act, but equally acted in defiance of a subsisting restraining order issued on 7/4/20 by the High Court of Katsina State in Suit No. KTH/29/2020.

By a concurrent originating summons dated 7/8/20 but issued out of the Registry of the High Court of Katsina State on 28/8/20, the Respondent (as plaintiff) posed two questions for determination by the lower Court as follows:

(a) Having regard to Section 287(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) vis a vis the Order of Interim Injunction granted by the High Court of Justice of Katsina State Coram Hon. Justice 
Lawal Garba Abdulkadir on the 7th day of April, 2020 in Suit No. KTH/29/2020 between Kurfi Dauda and 5 Ors Vs. Peoples Democratic Party restraining the 1st Defendant herein from holding or conducting her State Congress for Katsina State, whether the 1st Defendant can validly conduct its State Congress for Katsina State on the 27th day of July, 2020 or on any other date while the said order of interim injunction was still valid and subsisting.

(b) Whether the failure of the 1st Defendant to conduct its State Congress for Katsina State to elect its State Executive Committee members in accordance with the provisions of Section 85(3) of the Electoral Act, 2010 (as amended), Articles 49(2) of the Constitution of the Peoples Democratic Party (PDP) 2017 (As Amended) and the provisions of the Guidelines for the Conduct of Wards, Local Government Areas, States, Zonal Congresses and National Convention for the purpose of electing party executive committees at all level of the Peoples Democratic Party (PDP), 2020 nullifies the said State congress of the 1st Defendant for Katsina State purportedly conducted on the 27th day of July, 2020.

Upon resolution of these questions, the Respondent prayed the Court for declarations among other reliefs.

​The 1st Appellant (as 1st defendants) on the one hand, and the 2nd - 20th Appellants (as 2nd - 20th defendants) on the other hand raised separate preliminary objections which were dismissed by the trial Court before proceeding to enter final judgment in favour of the Respondent, hence this appeal. 

ISSUES:

The appeal was determined on the following issues viz:

"(i) Whether the service of the originating summons on the Appellant, the entire proceedings of the trial Court resulting in its rulings and judgment were not a nullity having been effected and commenced as the case may be, during the 2020 annual vacation of the trial Court. 

(ii) Whether the order made by Hon. Justice Lawal Garba Abdulkadir in Suit No: KTH/29/2020 qualifies as an enactment, will, deed, contract or written
instrument for the trial judge to interpret same under an Originating Summons procedure and also did the findings the trial Judge make on the said order not
amount to the said Judge sitting on appeal over the decision of a judge of co-ordinate jurisdiction. 

(iii) Whether the case of the Respondent did not revolve around membership; leadership and internal affairs of the 1st Appellant and if so, did the trial Court not act without jurisdiction when he decided that the Respondent is a member of the 1st Appellant. 

(iv) Whether the trial Court had jurisdiction to entertain the suit in the face of the fact that the Respondent breached the Constitution of the Plaintiff/Appellant (sic: 1st Appellant) by resorting to litigation without first exploring the internal dispute resolution mechanism of the Appellant. 

(v) Whether the Respondent had the locus standi, to institute the action as he did not submit himself to screening by the 1st Appellant's screening committee to determine his eligibility to contest election in its Katsina State Congress and 
was in fact not an aspirant at the said Congress. 

(vi) Whether the trial Court was not robbed of jurisdiction to entertain the case for 
the Respondent's failure to join the ex-officio and statutory members of Katsina State Executive Committee of the 1st Appellant as parties to the action."

DECISION/HELD:

On the whole, the Court of Appeal allowed the appeal. The rulings and final judgment of the trial Court appealed against were set aside. In their stead, the Court of Appeal ordered striking out Suit No. KTH/41/2020: Abdulaziz Muntari v. Peoples Democratic Party & 19 Ors for want of jurisdiction.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): 

Introduction
This appeal is against two rulings of the High Court of Katsina State (coram: A. B. Abdulahi, J.) delivered on 3/2/21 and 5/2/21 in respect of two separate preliminary objections, as well as the final judgment entered on 5/2/21 in Suit No. KTH/41/2020: Abdulaziz Muntari v. Peoples Democratic Party and 19 Ors. The 2nd – 20th Appellants and the Respondent are (or claim to be) card carrying members of the 1st Appellant, Peoples’ Democratic Party (PDP), which is the leading opposition party in Nigeria. The 1st Appellant held its elective State Congress for Katsina State on 27/7/20 from which the 2nd – 20th Appellants emerged as duly elected members of the State Executive Committee. The Respondent alleged that he was an aspirant at the elective congress, having paid the sum of N200,000 to the 1st Appellant which issued him a Nomination Form for the post of State Youth Leader, but he was not invited for screening and eventually excluded by the 1st Appellant and deprived of his right to vote and be voted for at the State Congress election, and that by conducting the State Congress as it did, the 1st Appellant not only violated the provisions of its Constitution and Guidelines as well as the Electoral Act, but equally acted in defiance of a subsisting restraining order issued on 7/4/20 by the High Court of Katsina State (Coram: Lawal Garba Abdulkadir, J.) in Suit No. KTH/29/2020: Kurfi Dauda and 5 Others v. Peoples Democratic Party.

By a concurrent originating summons dated 7/8/20 but issued out of the Registry of the High Court of Katsina State on 28/8/20, the Respondent (as plaintiff) posed two questions for determination by the lower Court as follows:
(a) Having regard to Section 287(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) vis a vis the Order of Interim Injunction granted by the High Court of Justice of Katsina State Coram Hon. Justice 
Lawal Garba Abdulkadir on the 7th day of April, 2020 in Suit No. KTH/29/2020 between Kurfi Dauda and 5 Ors Vs. Peoples Democratic Party restraining the 1st Defendant herein from holding or conducting her State Congress for Katsina State, whether the 1st Defendant can validly conduct its State Congress for Katsina State on the 27th day of July, 2020 or on any other date while the said order of interim injunction was still valid and subsisting.
(b) Whether the failure of the 1st Defendant to conduct its State Congress for Katsina State to elect its State Executive Committee members in accordance with the provisions of Section 85(3) of the Electoral Act, 2010 (as amended), Articles 49(2) of the Constitution of the Peoples Democratic Party (PDP) 2017 (As Amended) and the provisions of the Guidelines for the Conduct of Wards, Local Government Areas, States, Zonal Congresses and National Convention for the purpose of electing party executive committees at all level of the Peoples Democratic Party (PDP), 2020 nullifies the said State congress of the 1st Defendant for Katsina State purportedly conducted on the 27th day of July, 2020.

Upon resolution of these questions, the Respondent prayed the Court for the following reliefs:
“(a) A DECLARATION that the State Congress of the Peoples Democratic Party for Katsina State purportedly conducted by the 1st Defendant on the 
27th day of July, 2020 while the Order of interim injunction granted by the High Court of Justice of Katsina State Coram Hon. Justice Lawal Garba 
Abdulkadir on the 7th day of April, 2020 in Suit No. KTH/29/2020 between Kurfi Dauda and 5 Ors Vs. Peoples Democratic Party restraining the 1st Defendant herein from holding or conducting her State Congress for Katsina State was still valid and subsisting is illegal, unlawful, a nullity and 
liable to be set aside by this Honourable Court.
(b) A DECLARATION that the State Congress of the Peoples Democratic Party (1st Defendant) purportedly conducted by the 1st Defendant on the 27th day of July, 2020 contrary to the provisions of Section 85(3) of the Electoral Act, 2010 (as amended), Article 49(2) of the Constitution of the Peoples Democratic Party (PDP) 2017 (As Amended) and the provisions of the Guidelines for the Conduct of Wards, Local Government Areas, States, 
Zonal congresses and National Convention for the purpose of electing party executive committees at all level of the Peoples Democratic Party (PDP), 2020 is a nullity and liable to be set aside forthwith by this Honourable Court.
(c) AN ORDER OF THIS HONOURABLE COURT nullifying the State 
Congress of the Peoples Democratic Party [or Katsina State conducted by 
the 1st Defendant on the 27th day of July, 2020 wherein the 2nd to 20th 
Defendants were purportedly elected as members of the 1st Defendant's 
State Executive Committee for Katsina State.
(d) AN ORDER OF THIS HONOURABLE COURT directing the 1st Defendant to conduct fresh State Congress [or Katsina State in line with the 
Electoral Act, 2010, the Constitution of the 1st Defendant and the 1st Defendant's Guidelines for the Conduct of Wards, Local Government Areas, 
States, Zonal congresses and National Convention for the purpose of 
electing party executive committees at all level, 2020 (sic).
(d) AN ORDER OF THIS HONOURABLE COURT restraining the 2nd to 20th defendants from parading themselves and acting as members of the State Executive Committee of the Peoples Democratic Party (1st Defendant) 
in Katsina State.”

​The 1st Appellant (as 1st defendants) on the one hand, and the 2nd – 20th Appellants (as 2nd - 20th defendants) on the other hand raised separate preliminary objections which were dismissed by the lower Court before proceeding to enter final judgment in favour of the Respondent, hence this appeal. The ruling on the 1st Respondent’s objection is at pp. 482–486 of the records; the ruling on the 2nd - 20th Respondent’s objection is at pp. 488 - 502 thereof, whilst the Judgment is at pp. 503–517. Briefs were filed and duly exchanged. The Appellant’s brief was filed on 6/4/21, the Respondent’s brief (which incorporates arguments in support of the notice of preliminary objection) was filed on 15/6/21 whilst the Appellant’s reply brief (which incorporates arguments in opposition to the preliminary objection) was filed on 24/6/21. At the hearing of this appeal on 13/7/21, the preliminary objection was argued by Teryange Anjov, Esq., of counsel for the Respondent (who appeared with Musa Zakari, Esq.) and opposed by F. C. Ani, Esq., of counsel for the Appellants (who appeared with M. S. Mahuta, Esq., and J. P. Israel, Esq.), after which learned counsel adopted their respective briefs in the substantive appeal.

​From the fifteen (15) grounds of appeal raised in the Notice of Appeal filed on 31/3/21, the Appellant distilled the following six (6) issues for determination (which were adopted without modification by the Respondent):
(i) Whether the service of the originating summons on the Appellant, the entire proceedings of the trial Court resulting in its rulings and judgment were not a nullity having been effected and commenced as the case may be, during the 2020 annual vacation of the trial Court. (Grounds 3, 4 and 10 of the Notice of Appeal).
(ii) Whether the order made by Hon. Justice Lawal Garba Abdulkadir in Suit No: KTH/29/2020 qualifies as an enactment, will, deed, contract or written
instrument for the trial judge to interpret same under an Originating Summons procedure and also did the findings the trial Judge make on the said order not
amount to the said Judge sitting on appeal over the decision of a judge of co-ordinate jurisdiction. (Grounds 11, 12 and 13 of the Notice of Appeal).
(iii) Whether the case of the Respondent did not revolve around membership; leadership and internal affairs of the 1st Appellant and if so, did the trial Court not act without jurisdiction when he decided that the Respondent is a member of the 1st Appellant. (Grounds 1, 2, 6 and 9 of the Notice of Appeal).

(iv) Whether the trial Court had jurisdiction to entertain the suit in the face of the fact that the Respondent breached the Constitution of the Plaintiff/Appellant (sic: 1st Appellant) by resorting to litigation without first exploring the internal dispute resolution mechanism of the Appellant. (Ground 7 of the Notice of Appeal).
(v) Whether the Respondent had the locus standi, to institute the action as he did not submit himself to screening by the 1st Appellant's screening committee to determine his eligibility to contest election in its Katsina State Congress and 
was in fact not an aspirant at the said Congress. (Grounds 14 and 15 of the 
Notice of Appeal).
(vi) Whether the trial Court was not robbed of jurisdiction to entertain the case for 
the Respondent's failure to join the ex-officio and statutory members of Katsina State Executive Committee of the 1st Appellant as parties to the action.

Preliminary objection
The preliminary objection raised by the Respondent is a two-pronged assault on the jurisdiction this Court to hear and determine this appeal. The first prong alleges that “[t]his appeal is statute barred by virtue of Section 285 (11) and (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”, whilst the second prong is that “[t]here is no Record of Appeal transmitted by the Appellants to this Court in respect of their Notice of Appeal dated the 29th day of March, 2021 and filed on the 30th day of March, 2021 upon which they predicated their Brief of Argument to enable this Court assume jurisdiction to hear and determine their appeal”.

The Respondent contends that the suit leading to this appeal is a pre-election matter within the contemplation of S. 285(14)(b) of the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”), citing SANI BELLO & 170 ORS v ALL PROGRESSIVES CONGRESS & 8 ORS (Appeal No. CA/K/75/2019, unreported, delivered on 7/3/19), as well as the cases of BASINCO MOTORS LTD v WOERMAN-LINE & ANOR (2009) LPELR-756(SC) 25-26, FAWEHINMI v IGP [2000] 7 NWLR (PT 665) 481, NAFIU RABIU v STATE (1980) NSCC 292 – 300, A-G FEDERATION v ABUBAKAR [2007] ALL FWLR (PT 389) 1264 at 1289-1291, ELELU HABEEB v A-G, FEDERATION (2012) LPELR-281(SC), MARWA v NYAKO (2012) LPELR-17837(SC), N.U.R.T.W. v R.T.E.A.N. [2012] 10 
NWLR (PT 1307) 170 and UGWU v ARARUME [2007] 12 NWLR (PT. 1048) 365 [on the principles of constitutional interpretation], that the mischief S. 285(14)(b) CFRN was enacted to cure is the long delay in determining pre-election matters that linger for years until the general election, that the legislative intent behind the deliberate omission of the restrictive phrase ‘conduct of party primaries’ in S. 285 (14) (b) CFRN is to bring matters such as party congresses held 
before a general election within the embrace of the phrase ‘pre-election matters’, and that the definition of pre-election matter in S. 285(14)(b) CFRN to include "participation in an election or complaint that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria" connotes that disputes arising from the conduct of elective party congresses (as in the instant case) or complaints of non-compliance with the Electoral Act or other laws regulating the conduct of elections in Nigeria can conveniently come under pre-election matters.

​The Respondent maintained that by Article 47(1) of the 1st Appellant‘s Constitution (at Pp. 58–115 of the Record of Appeal), the tenure of office of the 2nd – 20th Appellants who were elected during the purported State Congress of 27/7/21 is four years, which implies that they will remain in office until 2024 after the 2023 general Election, that judicial notice should be taken of the fact that INEC has already commenced activities geared towards the 2023 general elections and the 1st Appellant would conduct State Primaries for Katsina State to choose Governorship, State Assembly and National Assembly candidates for the 2023 elections through the 2nd – 20th Appellants before the expiration of their tenure as State Executive Committee members, that if the legitimacy or validity of the emergence of the 2nd – 20th Appellants as members of the State Executive Committee is not timeously determined, they will undertake acts and conduct primaries on behalf of the 1st Appellant that may end up being a nullity, and that this could have been the reason the Supreme Court defined pre-election matter in APC v LERE [2020] 1 NWLR (PT 1705) 254 at 279 to include matters that occur before the election proper. The Respondent argued that the unreported decision of the Supreme Court in Appeal No. SC/CV/17/2021: AGUMA v APC & 2 ORS is distinguishable in that the Supreme Court held that it was not a pre-election matter because appellant therein (who neither contested any election nor claimed any relief touching on non-compliance with the Electoral Act or any Act regulating the conduct of primaries or the guidelines for the conduct of primaries) sought to challenge the composition of the Caretaker Committee to run the affairs of a political party. The Court was urged to hold that whereas this is a pre-election matter for which the Appellants are required to appeal within 14 days from the delivery of the judgment as stipulated in S. 285 (11) CFRN, the Notice of Appeal (upon which the Appellants have predicated their brief of argument) was filed on 30/9/21 outside 14 days from 5/2/21 when judgment was delivered, which render their appeal statute barred and robs this Court of jurisdiction to hear and determine the same, calling in aid the case of OKAFOR v B. D. U., JOS BRANCH 
[2017] 5 NWLR (PT. 1559) 385 at 422.

​The Respondent’s contention on the second prong of objection is that no record of appeal was transmitted in respect of the present appeal between Peoples Democratic Party & 19 Ors v. Abdulaziz Muntari, rather the Appellants’ brief is predicated on the record of appeal in Appeal No. CA/K/84/2021: Peoples Democratic Party v. Abdulaziz Muntari & 19 Ors, that upon delivery of the judgment of the Lower Court, the 1st Appellant filed the Notice of Appeal against the Respondent and the 2nd - 20th Appellants as Respondents on 5/2/21 and transmitted record of appeal to this Court on the 24/3/21, on the basis of which the appeal was entered and given Appeal No. CA/K/84/2021, that after the 1st Appellant‘s appeal was entered, the Appellants jointly filed two notices of appeal against the Respondent only at the registry of the lower Court on 24/3/21 and 30/3/21 respectively that whereas the 1st Appellant's 
Appeal against the Respondent and 2nd – 20th Appellants is contained at 
pp. 518 – 526 of the Record of Appeal, the Notice of Appeal jointly filed by the Appellants on 24/3/21 is the only document transmitted to this Court as Supplementary Appeal, just as the second joint Notice of Appeal filed on the 30/3/21 was equally transmitted to this Court via another document titled Supplementary Appeal. The Respondent maintained that at the time the Appellants filed their joint Notice of Appeal on 30/3/21 upon which the Appellants’ brief is predicated, the 1st Appellant‘s appeal against the Respondent and the 2nd - 20th Appellants vide the initial Notice of Appeal of 5/2/21 as contained in the record of appeal had already been entered as Appeal No. CA/K/84/2021 on 24/3/21, that by Order 6 Rule 10 of the Court of Appeal Rules 2016, the 1st Appellant’s appeal against the Respondent and the 2nd - 20th Appellants was deemed to have been brought on 5/2/21 when the Notice of Appeal was filed at the registry of the lower Court and deemed to have been entered on 24/3/2021 when the record of appeal was received by the registry of this Court pursuant to Order 4 Rule 10 of the Court of Appeal Rules 2016, thus failure or neglect by the Appellants (who filed their appeal jointly after Appeal No. CA/K/84/2021 
had been entered in this Court) to transmit a record of appeal for their joint appeal deprives this Court of jurisdiction to hear and determine this
appeal without any record before it. The Court was urged to strike out this appeal on this score.

Opposing the preliminary objection, the Appellants maintained that the suit before the lower Court was not a pre-election matter for which an appeal is required to be filed within 14 days, insisting that there is absolutely
nothing in S. 285(14)(b) CFRN that brings a party congress for electing the leadership or executive committee, or their tenure of office, within the definition of pre-election matter and that Courts of law have no power to read extraneous matters into constitutional or statutory provisions, citing BUHARI v INEC [2008] 19 NWLR 
(PT. 1120) 246 at 344 –per Tobi JSC, ACTION CONGRESS v INEC [2007] 12 NWLR (PT 1048) 
222 at 318 and BASINCO MOTORS LTD v WOERMANN-LINE [2009] 13 NWLR (PT 1157) 149 at 176. The Appellants contended that the Respondent did not allege in his Originating Summons that the 1st Appellant's Katsina 
State Congress of 27/7/20 was held in anticipation of the 2023 election, that the arguments contained in Respondent's brief are speculative, whereas the law is settled that Courts of law do not decide cases on the basis of speculation, citing IVIENAGBOR v BAZUAYE [1999] 9 NWLR (PT 620) 552 at 561, IKENTA BEST (NIG) LTD v A-G, RIVERS STATE [2008] 6 NWLR (PT. 1084) 612 at 653 and OVERSEAS CONSTRUCTION CO. (NIG) LTD v CREEK ENTERPRISES
(NIG) LTD & ANOR [1985] 3 NWLR (PT 13) 407 at 414 and that the functions of the State Executive Committee are clearly specified in Article 24(2)(a), (b) and (c) of the 1st Appellant's Constitution, and the Electoral Act 2010 (as amended), Articles 31(2)(j), 50(1) and (2) of the 1st Appellant's Constitution and the cases of ADEBAYO & ORS v PDP & ORS (2012) LPELR - 8430 (CA) at 121-122 – per Agube JCA, ADEBAYO & ORS v PDP & ORS [2013] 17 NWLR (PT. 1382) 1 at 
45 (CA) and EMEKA v OKADIGBO [2012] 18 NWLR (PT. 1331) 55 at 88 demonstrate that the power to conduct primaries for selecting candidates for an election is vested on the National Executive Committee of the party but not the State Executive Committee. The Appellants maintained that not being a pre-election matter, the present appeal is not regulated by S. 285(11) CFRN for purposes of computation of time to appeal, but by S. 24(2)(a) of the Court of Appeal Act which prescribes three months within which to appeal against a final decision, and the Notice of Appeal of 30/3/21 was filed within 53 days of delivery of the final judgment appealed against [on 5/2/21].

On the second prong of objection, the Appellants maintained that although the initial notice of appeal was filed on behalf of the 1st Appellant alone, the record of appeal was compiled on behalf of all the Appellants who subsequently decided to appeal jointly, hence the notice of appeal filed on behalf of all the Appellants on 30/3/21 was transmitted to this Court vide the supplementary record of 31/3/21, that the implication of the foregoing is that the 1st Appellant abandoned the notice of appeal he filed alone and decided to prosecute the present appeal jointly with the 2nd to 20th Appellants; that
 the Respondent's argument would have been taken seriously if the record of appeal 
was compiled for the 1st Appellant alone, which is not the case, and that the record of appeal before this Court unambiguously rebuts the
 Respondent's argument that it was compiled for the notice of appeal filed on 5/2/21, which, in any case, has been abandoned.

Resolution of preliminary objection
The first prong of objection raises the question of whether the suit from which the present appeal stems is a pre-election matter for which an appeal is required to be lodged within 14 days of delivery of final judgment. It cannot escape notice that issue one in the substantive appeal revolves around this very same question of whether or not the suit is a pre-election matter that could be heard during the lower Court’s annual vacation. As it seems to me clear that resolution of this prong of objection would have the undesirable effect of prejudging issue one in the substantive appeal, I cannot but refrain from making any pronouncements on the issue at this stage. As it relates to the 2nd prong of objection, it bears pointing out that three notices of appeal were filed: (i) the initial notice of appeal filed on 5/2/21 between Peoples Democratic Party v. Abdulaziz Muntari & 19 Ors (which is at pp. 518 - 526 of the record of appeal transmitted on 25/3/21); (ii) a second notice of appeal dated 24/3/20 between Peoples Democratic Party & 19 Ors v. Abdulaziz Muntari contained in a supplementary record transmitted on 26/3/21, and a third Notice of Appeal dated 29/3/21 but filed on 31/3/21 also between Peoples Democratic Party & 19 Ors v. Abdulaziz Muntari as contained in a ‘further’ supplementary record transmitted (on 1/4/21). Whereas the initial notice of appeal filed on 5/3/21 by the 1st Appellant against the Respondent and the 2nd – 20th Appellants is contained at pp. 518 – 526 of the record of appeal that was transmitted on 25/3/21 and the notice of appeal jointly filed by all the Appellants against the Respondent was filed on 30/3/21, it is clear on the face of the record of appeal (which speaks for itself) that it is in respect of Appeal No. CA/K/84/2021: PDP & 19 Ors v Abdulaziz Muntari, which is the present appeal. As it does not seem that any record of appeal was compiled for the initial notice of appeal filed on 5/3/21, we should not suffer ourselves to be detained by the anxieties raked up in this second prong of objection. What remains crucial is that all the materials required for the resolution of the present appeal are contained in the record of appeal before this Court. Let us therefore shift attention presently to the substantive appeal in respect of which the six issues distilled for determination by the Appellants and adopted by the Respondent are reproduced hereinbefore.

Substantive appeal
Issue One: Whether the service of the originating summons on the Appellant, the entire proceedings of the trial Court resulting in its rulings and judgment were not a nullity having been effected and commenced as the case may be, during the 
2020 annual vacation of the trial Court. (Grounds 3, 4 and 10 of the Notice of 
Appeal).

In grappling with issue one, the first thing to do is to determine whether the suit that has given rise to this appeal is a pre-election matter within the meaning and intendment of S. 285(14) (b) CFRN. Whereas the Appellants’ posit that the Respondent’s suit which revolves around the 1st Appellant’s state congress held on 27/7/20 was/is not a pre-election matter under S. 285(14)(a)–(c) CFRN, the Respondent asserts the contrary. In the light of Practice Direction No. 1 of 2020 issued on 14/8/2020 by the Chief Judge of Katsina State to the effect that “nothing in the Katsina State High Court Civil Procedure Rules 2017 shall prevent a Judge of the High Court of Katsina State from hearing a pre-election matter (as defined in S. 285(14)(a)–(c) CFRN) already pending before the Court, during the vacation period”, the resolution of this question at the outset is crucial. The validity vel non of Court proceedings held, and orders made, during the annual vacation will come into play if and only if the suit is not a pre-election matter as contended by the Appellants and resisted by the Respondent who took out an Originating Summons seeking nullification of the 1st Appellant's Katsina State Congress of 27/7/20 on the grounds that he was an aspirant thereat but was not invited for screening and eventually excluded from the State Congress conducted in breach of the Electoral Act 2010 (as amended), the 1st Appellant’s Constitution and Guidelines, as well as in disobedience of a subsisting order of interim injunction restraining its convocation. The Respondent’s grouse therefore revolves around the 1st Appellant’s congress in Katsina State and nothing more.

Now, pre-election matter is defined in S. 285(14)(a), (b) and (c) CFRN as any suit by:
“(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for the conduct of party primaries, has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
(b) An aspirant challenging the decisions or activities of the Independent National Electoral Commission (INEC) in respect of his participation in an election or who complains that the provisions of 
the Electoral Act or any elections in Nigeria has not been complied 
with by INEC in respect of the selection or nomination of candidates and participation in an election; and
(c) A Political Party challenging the action, decision or activities of INEC disqualifying candidates from participating in an election or a complaint that the provisions of the Electoral Act or any applicable law has not been complied with by INEC in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the commission in respect of preparation for an election."

In its ruling of 5/2/21 dismissing the 1st Appellant’s preliminary objection dated 2/11/20, the lower Court relied on the unreported decisions of the Court of Appeal in CA/K/75/2019: SANI BELLO & 170 ORS v APC & 9 ORS supra (delivered on 7/3/19) and CA/PH/243/2020: APC & ORS v MOSES & 9 ORS in holding that a party congress for election of executives to run its affairs is a pre-election matter under S. 285(14)(a), (b) and (c) CFRN. It is instructive that the learned trial judge (A. B. Abdulahi, J.) had in two separate rulings delivered on 15/9/20 in Suit No. KTH/21/2020: Bishir Abdulmalik Gafia v PDP and Suit No. KTH/21/2020: Nasiru Umar Dutsinma (annexed the 1st Appellant’s preliminary objection as Exhibits B and C respectively) declined jurisdiction on the ground that the cases bordered on the propriety or otherwise of conducting congresses for the election of a political party’s executive committee at all levels without due regard or compliance with the party’s Constitution and guidelines, which is an intra-party affair not contemplated as a pre-election matter under S. 285(14 (a)–(c) CFRN that could be heard during vacation pursuant to Practice Direction No. 1 of 2020 of the Katsina State High Court (see pp. 178 – 176 of the records). His Lordship however attributed his different stance in the instant case to the fact that CA/K/75/2019: SANI BELLO & 170 ORS v APC & 9 ORS supra was not brought to his attention in the earlier cases, which is perfectly understandable.
Be that as it may, two recent decisions of the Supreme Court delivered on 5/3/21 (namely: SC/CV/129/2020: APC v DELE MOSES & 10 ORS reported in [2021] 14 NWLR (PT 1796) 278 (which reversed CA/PH/243/2020: APC & ORS v MOSES & 9 ORS upon which the lower Court relied) and SC/CV/17/2021: AGUMA v APC & 2 ORS reported in [2021] 14 NWLR (PT. 1796) 351 have made it clear beyond peradventure that disputes arising from party congresses are not pre-election matters within the meaning and intendment of S. 285(14)(a) – (c) CFRN. In APC v DELE MOSES & 10 ORS supra at 318, his Lordship, Augie JSC held that APC v UMAR (2019) LPELR-47296(SC) (often cited as authority for treating party congresses as falling within the embrace of pre-election matters) entailed a scenario in which “the party congresses were intertwined with primaries conducted by APC in preparation for the general election, and one could not be extricated from the other. There was no dividing line between the said congresses and APC’s preparation for the 2019 General Elections. What is more, the trial Court made it abundantly clear that its reason for deciding, and making the consequential orders nullifying not just the said party congresses but also the primaries carried out by the party during the pendency of the suit”, which is not the scenario in the instant case. And in AGUMA v APC & 2 ORS supra at 404, the concurring judgment of Augie JSC summed up thus:
"So Section 285(14)(a) - (c) of the 1999 Constitution (as amended), which defines what a pre-election matter is, speaks of aspirants, who complain about the conduct of party primaries in respect of the "selection or nomination of candidates for an election"; aspirants, who are challenging "actions, decisions or activities" of INEC, in respect of their participation in an election, and political parties that challenge "actions, decision or 
activities" of INEC, "in respect of nomination of candidates for an election, 
timetable for an election, registration of voters and other activities in 
respect of preparation for an election.
In this case, the Appellant is not claiming any reliefs touching or pertaining to be an aspirant complaining about the conduct of any primaries or challenging actions, decisions or activities of INEC."
His Lordship Agim JSC was even more emphatic in holding (at P. 406 of the Law Report) that “if S. 285(14) had intended that that actions concerning the election and appointment of persons to political party offices, membership of a political party, setting up committees or organs of a political party and its general internal affairs constitute pre-election matters, it would have stated so”. I accordingly entertain no reluctance whatsoever in holding that the suit that gave rise to the present appeal is not a pre-election matter as defined in S. 285(14)(a) – (c) CFRN, and therefore outside the purview of Practice Direction No. 1 of 2020.

The relevant enquiry therefore is as to the validity of the Court proceedings and orders made by the trial Court during the 2020 annual vacation. There is no disagreement that the 2020 annual vacation of the lower Court commenced on 17/8/20 and ended on 28/9/20. The records reveal that the Respondent applied to issue and serve the originating summons on the 1st Appellant (1st defendant) outside jurisdiction at its headquarters in Abuja, FCT, which was granted by the lower Court on 24/8/20. The Respondent equally applied and was granted leave on 15/9/20 to serve the 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 16th, 17th, 18th and 20th Appellants (defendants) by substituted means. See pp. 427 – 428 of the records. In its ruling of 5/1/21 on the 1st Appellant’s preliminary objection (which prayed inter alia for an order setting aside the Court proceedings conducted on 24/8/20 and 15/9/20 as well as orders made by the Court on the said dates for want of jurisdiction), the lower Court stated that “[i]t is a fact that this Court sat on vacation during its 2020/21 Court vacation firstly during which (sic) the originating summons of the defendant’s (sic) was listed and leave to serve some of the defendants out of jurisdiction was ordered and service accordingly effected on the 1st Defendant to wit out of jurisdiction at FCT Abuja”, but dismissed the objection on the ground that the suit was a pre-election matter that could be heard during the vacation (see pp. 168 – 176, and 488 – 502 of the records). But, as demonstrated above, the lower Court fell into error in holding that the Respondent’s suit was/is a pre-election matter which it is evidently not.

The holding of Court proceedings during annual vacation is regulated by Order 42 Rules 4, 5 and 6 of the High Court of Katsina State (Civil Procedure) Rules, 2017 which provide thus:
"4. Subject to the directions of the Chief Judge, sitting of the High Court for the despatch of civil matters shall be held on every week day except:
(i) On any public holiday;
(ii) During the week beginning with Easter Monday;
(iii) During the period beginning on 20th December of a given year and ending on 6th January next following.

(iv) During an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may appoint.
5. (1) Notwithstanding the Provisions of Rule 4 of this order, any cause or matter may be heard by a judge during any of the periods  mentioned in paragraphs (b), (c) or (d) of Rule 4 of this Order (except on a Sunday or public holiday);
(a) Where such cause or matter is very urgent, or to hear a cause or matter;
(b) A Judge, at the request of all concerned, agrees.
(2) An application for an urgent hearing under Sub-Rule 1(a) of this Rule shall be made by motion ex parte and the decision of the judge on such application shall be final.
6. The time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed by the Judge, for pleadings."
​The above provision seems to me clear as crystal and admits of no ambiguity. The effect is to deprive the trial Court of the authority to sit and make orders during the period of the annual vacation unless leave is granted pursuant to an application ex parte for urgent hearing, or a request is made by all the parties to which the judge agreed. Thus, in order for Court proceedings to validly hold during the vacation, the emphatic dictates of Order 42 Rule 5(1) and (2) must be complied with. A judge who sits over a case during vacation without satisfying the preconditions acts without jurisdiction and the proceedings as well as any order(s) made are a nullity and liable to be set aside. See OSOSAMI v C. O. P. (1952/1955) 14 WACA 24, ITAYE & ORS v EKAIDERE (1978) LPELR-1558(SC) and ONYECHI v ONYECHI (2013) LPELR-21208(CA). In the case at hand, the trial Court sat on 24/8/20 and 15/9/20 and granted leave pursuant to which the Originating Summons was served of the Appellants without any application made to him for urgent hearing, even as all the parties did not also make any request for the matter to be heard during the vacation.
It is forcefully agitated on behalf of the Respondent that leave was not required to serve the 1st Respondent outside jurisdiction, as such the proceedings of 24/8/20 whereat the lower Court granted leave to serve the 1st Appellant outside jurisdiction was a mere surplusage that will not vitiate the proceedings.

That is an argument that tastes rather sour in the mouth of the Respondent who moved the Court to make the order during the Court’s vacation without complying with the stipulations of the Rules of Court. But even if, arguendo, no leave was required to serve the 1st Appellant outside jurisdiction under the Sheriff and Civil Process Act and/or the rules of the lower Court as contended by the Respondent, the fact that the lower Court equally sat on 15/9/20 and granted leave to serve the 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 16th, 17th, 18th and 20th Appellants (defendants) by substituted means takes the wind out of the sails. Since the lower Court was bereft of jurisdiction to grant the order of substituted service during the annual vacation as it did, then it follows that the said order of substituted service granted during the vacation is a nullity. The legal effect is that no service was effected in the eyes of the law and the entire proceedings inclusive of the rulings and judgment founded on the invalid service constitute a futile nullity. The point to underscore is that it is not the fact of delivery of a statement of claim or other Court processes during the annual Court vacation per se that constitutes a nullity. Such a process may be voidable but certainly not void. See UAC v MACFOY (1962) AC 152. Rather, the nullity flows from the fact that the Court sat during the vacation and made orders for service without satisfying the stipulations of the applicable rules of Court. Issue one is resolved in favour the Appellants.

Issue Two: Whether the order made by Hon. Justice Lawal Garba Abdulkadir in Suit No: KTH/29/2020 qualifies as an enactment, will, deed, contract or written instrument for the trial judge to interpret same under an originating summons procedure and also did the findings the trial Judge on the said order not 
amount to the said Judge sitting on appeal over the decision of a judge of co-ordinate jurisdiction. (Grounds 11, 12 and 13 of the Notice of Appeal).

It bears pointing out at the outset that originating summons, being one of the modes by which a civil action may be commenced, is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the Court. See RE KING MELLOR v SOUTH AUSTRALIAN LAND MORTGAGE & AGENCY CO (1907) 1 Ch. 72 at 75 – per Neville, J. cited with approval in NATIONAL BANK OF NIGERIA v ALAKIJA & ANOR (1978) 9-10 SC 59 at 73 – per Eso, JSC. It is generally accepted that originating summons is reserved for issues like the determination of short questions of construction but not matters of such controversy that the justice of the case would demand the settling of pleadings, and should only be applicable in such circumstances as where there is no substantial dispute on questions of fact or the likelihood of such dispute. See NATIONAL BANK OF NIGERIA v ALAKIJA & ANOR supra and ANATOGU v ANATOGU [1997] 9 NWLR (PT. 519) 49. It would seem that the emphasis is not on the existence of dispute per se since every case necessarily involves one dispute or the other, but whether there is a substantial dispute of fact relevant to the determination of the issue in controversy. See HABIB NIGERIA BANK LIMITED v. OCHETE [2001] FWLR (PT. 54) 384 at 406 – 407, INAKOJU v. ADELEKE [2007] ALL FWLR (PT. 353) 3 at 202. Adekeye, JSC stated the law succinctly in the case of EZEIGWE v. NWAWULU [2010] ALL FWLR (PT. 518) 794 at 838-839 as follows:

“...The main advantage is simplicity resulting from the elimination of pleadings. The procedure of originating summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who without the need for pleadings, merely want, for example, a directive of the Court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need know beforehand the issues which they are called upon to contend with from the pleadings. There can be disputed facts which originating summons procedure could resolve, but where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In order words, originating summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute."

Order 3 Rule 3(1) of the Katsina State High Court (Civil Procedure) Rules 2017 which governs the use of originating summons provides that: “Any proceedings in which the facts are not in dispute and the sole issue is one of construction of an enactment, a will, a deed, a contract, a written instrument or any other document or for declaration of rights under such instrument or some other question of law may be commenced by originating summons”. Whereas the Appellants contend that the judgment or order of Court does not fall within the category of documents or instruments that can be the submitted to the trial Court under originating summons procedure, and the Respondent seeks to enlarge the jurisdiction of the lower Court by submitting the order of Abdulkadir, J. to it for interpretation, the Respondent has maintained that he did not seek the interpretation of the order of Abdulkadir, J. but merely sought the interpretation of s. 287(3) CFRN vis-à-vis an order (not judgment) of the High Court of Katsina State which restrained the 1st Appellant from conducting its state congress in Katsina State for the purpose of giving effect to the said order and nothing more. The Respondent further maintained that the phrase “some other question of law” in Order 3 Rule 3(1) allows the lower Court to interpret any other question of law brought before it through originating summons and the lower Court properly interpreted the question posed as to ‘whether the 1st Appellant can lawfully conduct its state congress in Katsina State when there was a subsisting Court order restraining it from conducting or holding the said congress’.
I have given a careful and insightful consideration to the provisions of Order 3 Rule 3(1) of the rules of the lower Court. To my mind, the phrase ‘some other question of law’ refers to other legal questions arising from an enactment, a will, a deed, a contract, a written instrument or any other document aside from questions of construction or declaration of rights under such instruments. The phrase is certainly not a carte blanche for raking up every conceivable legal question for resolution by way of originating summons as the Respondent contends. No. It is equally needful to point out that the distinction the Respondent seeks to draw between “judgment of Court” and “order of Court” is six of one and half a dozen of the other, a difference without a distinction. Whilst it is conceded that there is only one High Court of Katsina State, the question the Supreme Court resolved in the negative in RACE AUTO SUPPLY CO v AKIB supra was ‘whether a party interested in a judgment can by way of an application by originating summons ask a Court of co-ordinate jurisdiction to resolve any question of construction of words or phrases or interpretation of any part of the judgment’. That decision is forcefully binding on this Court under the inflexible doctrine of stare decisis and I take the considered view that the lower Court was in error to have assumed jurisdiction under the phrase ‘any other question of law’ in Order 3 Rule 3(1) of the Rules of Court to construe the order of Abdulkadir, J. who is a Court of coordinate jurisdiction under the guise of giving effect to the order the Katsina State High Court. A judgment or order of Court has been held not to be an instrument or document that can be interpreted by the Court, and there is no way the learned trial judge could enforce or give effect to the Order of Abdulkadir, J., without construing the order one way or the other to ascertain whether or not it was still subsisting at the time the 1st Appellant’s state congress was held on 27/7/20.

It equally does not seem to me that the Respondent, who is not a party to the suit before Abdulkadir, J., in which the order of interim injunction was made, is at liberty to found a fresh action upon the said interim order under the guise of giving effect to it. Crucially, since Suit No. KTH/29/2020: Kurfi Dauda & Ors v PDP in which Abdulkadir, J., made the order of interim injunction “pending the hearing and determination of this motion on notice dated 06/04/2020 filed by the Applicants/Plaintiffs” was presumably still pending, Abdulkadir, J., is eminently empowered at all material times to deal with any alleged violation of his order. I therefore fail to see the pedestal upon which the lower Court stood in entertaining the fresh suit filed by the Respondent which gave rise to the rulings and judgment appealed against. And even if arguendo, the lower Court could enforce and give effect to the interim order issued by Abulkadir, J., on 7/4/20 which restrained the 1st Appellant “from holding or conducting her state congress in Katsina State pending the hearing and determination of this motion on notice dated 06/04/2020 filed by the Applicants/Plaintiffs” by means of an originating summons at the instance of the Respondent, it does not seem to me that the lower Court was on firma terra when it held in the final judgment (at p. 512 of the records) that: “Given the fact that the state congress was held on the 27th July, 2020 by the 1st Defendant [1st Appellant], it was for the 1st Defendant [1st Appellant] who went ahead and conducted its state congress to show that either the interim order was set aside on appeal by an appellate Court, or by Court that issued the order, or the motion was heard on the 30/4/2020 and which terminated the life of the interim injunction”. This seems to me a misplacement of the burden of proof. Since the order was made to abide a contingency, the burden was not on the 1st Appellant, but on the Respondent who prayed the lower Court to nullify the State Congress of 27/7/20 to show that the interim order was still subsisting at that date. The rule of evidence encapsulated in S. 135 of the Evidence Act is that he who asserts the positive must prove. This issue is resolved in favour of the Appellant against the Respondent.

Issues 3 and 5
“3. Whether the case of the Respondent did not revolve around membership, leadership and internal affairs of the 1st Appellant and if so, did the trial Court not act without jurisdiction when he decided that the Respondent is a member of the 1st Appellant. (Grounds 1, 2, 6 and 9 of the Notice of Appeal)”.
“4. Whether the Respondent had the locus standi, to institute the action as he did not submit himself to screening by the 1st Appellant's screening committee to 
determine his eligibility to contest election in its Katsina State Congress and
was in fact not an aspirant at the said Congress. (Grounds 14 and 15 of the 
Notice of Appeal).”

The parties expended a considerable amount of printer’s ink in arguing whether or not the Respondent is a member of the 1st Appellant. I think the exercise is unnecessary. In the ruling of 3/2/21 on the 2nd–20th Appellant’s preliminary objection challenging the Respondent’s locus standi to maintain the action, the lower Court took the view that “the fact that the defendant had decided to sell and did sold (sic) to the plaintiff in 2020 as per Exhibit 3 and 4 is sufficient evidence to buttress the fact that the plaintiff is an up to date member of the 1st Defendant, the content of Exhibit 1 notwithstanding…” (see p. 485 of the records). Prima facie, the fact that the 1st Appellant sold a nomination form to the Respondent raises a presumption of membership in his favour. It would be absurd to think that the 1st Appellant sells nomination form to just anybody on the streets who has the money to pay for it. I therefore agree with the learned trial Court to that extent. But I will not go as far as the lower Court in holding that the fact of selling a nomination form to the Respondent constitutes sufficient evidence that he is “an up to date member the content of Exhibit 1 notwithstanding”. Exhibit 1 annexed to the affidavit in support of the 2nd – 20th Appellant’s preliminary objection (which is also annexed to the affidavit in support of originating summons) contains a table at the top right corner showing whether or not a member is up to date in payment of membership fee. There being no entry on the face of Exhibit 1 showing that the Respondent paid any membership fee at all from 2016 to 2021, the factual basis for the lower Court’s finding that the Respondent is an up-to-date member of the 1st Appellant is lost on me.

The Court does not pre-occupy itself with micro-managing political parties and will not be involved in deciding who the members of a political party are. See APGA v ANYANWU (2014) 7 NWLR (PT 1407) 541 at 575 and ANPP v USMAN [2008] 12 NWLR (PT 1100) 1 at 57. As a corollary, the holding of a political party congress and questions bordering on membership of a political party or sponsorship of candidates are matters falling within the domestic affairs of political parties outside the remit of the Courts. See ONUOHA v OKAFOR & ORS (1983) 2 SCNLR 244, (1983) 14 NSCC 494, ABDULKADIR v MAMMAN [2003] 14 NWLR (PT. 839) 1 at 31–32, DALHATU v TURAKI [2003] 15 NWLR (PT. 843) 310 at 335 and AGUMA v PDP supra where his Lordship, Agim JSC held that a political party is a voluntary association and a member of the party has no right of action against his political party for breach of its constitution concerning its internal affairs. The Court equally lacks the requisite jurisdiction to adjudicate on the issue of which candidate a political party should nominate or sponsor for an election. See LADO v CPC [2011] 18 NWLR (PT 1279) 689. The only aperture through which the Courts can intervene is severely circumscribed by S. 285 (14) CFRN, and it is in that limited respect that pronouncements of Courts to the effect that ‘a political party is bound by the provisions of its Constitution and cannot act as it pleases’ must be understood. But the case at hand is not a pre-election matter as I have already held. The position of State Youth Leader which the Respondent desired to contest is one of the State Offices of the 1st Appellant, and my understanding is that the lower Court was called upon to inquire into the political intrigues of how and why the Respondent was allegedly not invited for screening and eventually excluded from the State Congress held on 27/7/20. Quite clearly, this is a matter that falls squarely within the domestic affair of the 1st Appellant outside the remit of the lower Court, even as the question of who and how a person emerges as a State Officer of a political party is unquestionably a political one within the exclusive province of the political party. The principle in ONUOHA v OKAFOR supra (which was followed and applied in ABDULKADIR v MAMMAN supra in a dispute relating to party offices) clearly denudes the lower Court of the requisite jurisdiction to inquire into the subject matter of the Respondent’s suit.

I reckon also that the sale/purchase of nomination form per se is not conclusive proof of a person’s eligibility to stand election on the platform of a political party. This is necessarily so because being a member of the 1st Appellant is one thing, but whether that member is eligible to contest election at the 1st Appellant’s State Congress is quite a different kettle of fish. The ‘Nomination Procedure’ in Clause 10.0 of the 1st Appellant’s Guidelines for the Conduct of Ward, LGA, State, Zonal Congresses and the National Convention for the Purpose of Electing Party Executive Committees at all Levels (which is annexed to the affidavit in support of concurrent originating summons as Exhibit C) provides for a screening process through which eligibility to stand election is to be ascertained.

The Respondent contended that having abandoned the application for enlargement of time to file their counter-affidavit, the Appellants did not join issues on the Respondent’s continued membership of the 1st Appellant as well as his eligibility to contest the election for non-payment of membership fee for over two years. This argument seems to run against the current of the records which reveal (at pp. 475 – 482) that the counter-affidavit deposed by one Delight Daniel on behalf of the 2nd - 20th defendant (now 2nd - 20th Appellants) with Exhibits A – E annexed thereto was adopted by Mr. Ani of counsel at the at the hearing of the originating summons on 18/1/21 without any protest by T. Anjov, Esq., of counsel for the Respondent (plaintiff) who also made copious reference to the said counter-affidavit in furtherance of the Respondent’s case. Crucially, the lower Court itself made copious reference to and examined the said counter-affidavit in reaching its final judgment (see pp. 506, 509, 514, 515 of the record of appeal). Thus, whatever irregularity that attended the 2nd – 20th Appellant’s counter-affidavit was effectively condoned and it is too late in the day to rake up the fact that it was filed out of time and the application to regularise it was not moved. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it. See UTC v PAMOTEI [1989] 2 NWLR (PT. 103) 244; (1989) 3 SC (PT. 1) 79 and UBA v DIKE NWORA [1978] 11-12 SC 1.

Even if, arguendo, there was no valid counter-affidavit to the originating summons by which the Appellants joined issues on the Respondent’s membership of the 1st Appellant and/or his eligibility to contest election, the proposition that a claimant can only succeed on the strength of his own case and not on the weakness or absence of the defence remains good law. Especially is this so when it is borne in mind that the reliefs sought by the Respondent are declaratory in nature. Thus, the burden of demonstrating eligibility to contest the 1st Appellant’s elective state congress and/or that he was an aspirant rested squarely on the Respondent.

The law is well settled that the jurisdiction of a Court or Tribunal is donated by the claim before the Court. See ADEYEMI v OPEYORI (1976) 9-10 SC 31, IZENKWE v NNADOZIE (1952) 14 WACA 361 and TUKUR v GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT 117) 517 at 549 and it is the statement of claim (or supporting affidavit in cases commenced by originating summons) before the Court that has to be examined in order to ascertain whether or not a Court has jurisdiction to hear and determine a matter before it or the claimant has the requisite locus standi to maintain the action. See OKULATE v AWOSANYA [2000] 2 NWLR (PT. 646) 530 at 555; ABEKE v IMAFIDON [1999] 1 WLR N(PT. 586) 209 at 214 B – C and ODE v BALOGUN [1999] 10 NWLR (PT. 622) 214 at 223. In this regard, I have given more that passing consideration to the questions posed and reliefs sought in the originating summons, the depositions in the supporting affidavit and the annexures thereto. The stipulation of Clause 49(1) of the 1st Appellant’s Constitution is that ‘every registered member of the party who has satisfied the requirements for nomination and election under this Constitution, the Constitution of the Federal Republic of Nigeria or any other law, rules or regulations in force shall be eligible to contest for any of the offices of the Party’. The 1st Appellant’s Guidelines for the Conduct of Ward, LGA, State, Zonal Congresses and the National Convention for the Purpose of Electing Party Executive Committees at All Levels was annexed to the affidavit in support of concurrent originating summons as Exhibit C. Clause 10 (f) thereof (which deals with Nomination Procedure) provides that: “All nominations must be on the prescribed Nomination Form issued by the National Working Committee through the Directorate of Organisation and Mobilization, or Party’s Congresses and National Convention Planning Committee, which must be returned/submitted back to the Directorate for processing”; whilst Clause (g) is to the effect that “nominations at Wards, LGAs, and States shall close at least 7 (seven) days to the start of the respective elections”. The Respondent ought therefore to demonstrate, at the very minimum, that aside from paying for and being issued with a nomination form, he equally returned/submitted the said nomination form in the manner prescribed by the guidelines before he can claim to be an aspirant at the State Congress.

It is deposed in the 2nd – 20th Appellant’s counter-affidavit that a timetable showing a schedule of activities for the conduct of the 1st Appellant’s congresses (annexed thereto as Exhibit E) was posted on the Notice Board at the Appellant’s Secretariat in Katsina as well as advertised in the 1st Appellant’s website and newspapers to in order to notify members, and the Respondent cannot feign ignorance or claim to have been excluded from the 1st Appellant’s state congress, that the last date for submission of nomination forms in line with paragraph 10.0(f) of the 1st Appellant's Guidelines was 29/2/20, and that screening was conducted on 26/3/20 (See p. 275 of the Record of Appeal). In the final judgment of 5/2/21, the lower Court held that the “announcement of state congress to be conducted in April 2020” in Exhibit E did not support the Appellants’ case since the state congress in contention was conducted on 27/7/20. It occurs to me however that notwithstanding that the State congress did not hold in April 2020, the Respondent who obtained a nomination form in February 2020 ostensibly to enable him contest the post of State Youth Leader at “the state congress that was to be conducted in April 2020” as stated in Exhibit E, did not return/submit his nomination form at all material times. The Respondent cannot therefore complain of having been excluded from the state congress that was eventually conducted on 27/7/20. It goes without saying that it is only upon returning/submitting the nomination form that the Respondent could have been invited for screening by the “State Screening Committees whose responsibility shall be to screen and clear/disqualify all State Executive Offices aspirants” as provided in Clause 8.1(a)(i) which equally states that “Only Aspirant[s] cleared by the Screening Committee and/or whose appeal has been upheld by the Screening Appeal Panel will be qualified and allowed to stand Election”. All the members of the 1st Appellant, inclusive of the Respondent, are bound by the Constitution and guidelines of the 1st Appellant [see ABDULKADIR v MAMMAN supra], and it is hardly necessary to state that merely obtaining a nomination form without more does not make an aspirant. The nomination form must be submitted/returned for processing in accordance with the applicable guidelines, and it is only after a person is cleared by the screening and/or appeal committees that he can be said to be an aspirant at the State congress or any other election of the 1st Appellant.

The Respondent has harped on the absence of any timeline in the 1st Appellant’s guidelines for submitting/returning nomination form. It is correct that no specific time for submitting/returning nomination form is stated in Clause 10.0 of the 1st Appellant’s guidelines. As stated above, Clause 10 (g) merely provides that “nominations at Wards, LGAs, and States shall close at least 7 (seven) days to the start of the respective elections”. But it is elementary that where no time is prescribed for doing an act, the law presumes that it will be done within a reasonable time, which is dependent on the facts of each case. See BARRISTER AMANDA PAM & ANOR v NASIRU MOHAMMED & ANOR (2008) 5 - 6 SC (PT 1) 83 and ABIEGBE & ANOR v UGBODUME & ORS (1973) 1 SC 103. As stated hereinbefore, the Respondent obtained nomination form in February 2020 to enable him contest for the post of State Youth Leader at “the state congress that was to be conducted in April 2020” as stated in Exhibit E, but failed or neglected to return the nomination form within a reasonable time or at all. The order of interim injunction restraining the conduct of the State Congress (on the basis of which the Respondent approached the lower Court to nullify the State Congress of 27th July, 2020) was issued in April 2020. The Respondent cannot therefore attribute his failure or neglect to submit the nomination form to a Court order that was made almost two months after he obtained the form. Having not submitted/returned the nomination form at all material times for good reason, bad reason or no reason at all, it is obvious that the Respondent failed to demonstrate his eligibility to stand election, and it certainly does not lie in his mouth to assert that he was not invited for screening or that he was an aspirant excluded from the State congress. Even if he felt aggrieved that he was not invited for screening after purchasing a nomination form that he did not return or submit to the 1st Appellant, his remedy lies in an action for damages against the 1st Appellant, but certainly not to seek nullification of the state congress conducted on 27/7/20. See GBENGA v APC [2020] 14 
NWLR (PT 1744) 248 at 274.

It seems to me therefore that the Respondent was at the very best, an “intending aspirant” who did not metamorphose into a veritable aspirant qualified and cleared to stand election pursuant to the 1st Appellant’s guidelines and who was excluded from the elective congress. The lower Court was in error to invest the Respondent with the requisite locus standi to approach it with a view to nullifying the said State congress held on 27/7/20 which is an internal affair of the 1st Appellant outside the remit of the Courts. Issues 3 and 5 are resolved in favour of the Appellants against the Respondent.

Issue 4: Whether the trial Court had jurisdiction to entertain the suit in the face of the fact that the Respondent breached the Constitution of the Plaintiff/Appellant (sic: 1st Appellant) by resorting to litigation without first exploring the internal dispute resolution mechanism of the Appellant. (Ground 7 of the Notice of Appeal).

It is contended on behalf of the Appellants that the Respondent failed or neglected to pursue and exhaust the internal dispute resolution remedies prescribed in Articles 60 and 61 of the 1st Appellant‘s Constitution before this suit was instituted, and the lower Court was bereft of jurisdiction to entertain the suit that was both premature and incompetent, calling in aid the cases of AGI v PDP [2017] 17 NWLR (PT. 1595) 386 at 459, DALHATU v TURAKI supra and SC/CV/117/2021 and AGUMA v APC & 2 ORS (unreported). The Respondent’s reaction is that Articles 60 and 61 of the 1st Appellant’s Constitution merely provide for channels of appeal within the party, but did not oust the jurisdiction of the Court when a member fails to explore internal dispute resolution procedures before going to Court; that the jurisdiction of the Court is fundamental and a threshold issue that cannot be ousted by implication, as such non-compliance with Articles 60 and 61 of the 1st Appellant Constitution does not oust the jurisdiction donated to the lower Court under Ss. 272 and 6(6) (a) and (b) CFRN to hear and determine matters 
between persons, institutions and authorities, that the jurisdiction conferred on the lower Court by the Constitution (being the grundnorm from which all other laws derive their validity) can only be taken away expressly by the Constitution itself but not by a mere provision in the 1st Appellant’s Constitution, citing the decision of this Court in AMAECHI v INEC [2007] 9 NWLR (PT 1040) 
504 at 540 – 541 (CA) which was affirmed in AMAECHI v INEC [2008] 5 NWLR (PT 1080) 227 at 296 (SC), as well as the case BOKO v NUNGWA [2019] 1 NWLR (PT 1654) 395 at 423 – 424 (CA). The further contention of the Respondent is that, assuming without conceding, that Articles 60 and 61 of the 1st Appellant Constitution are capable of ousting the jurisdiction of the lower Court for non-compliance with the appeal channels provided therein, the said Articles 60 and 61 do not apply in the instant suit, that whereas Articles 60 and 61 provide for appeal channels generally to be followed by members of the 1st Appellant on any grievance they may have against any organ of the 1st Appellant, the appeal channel for grievance arising from the conduct of state congress is the Special Appeal Panel to be established under Paragraph 14.1 (4) of the Guidelines which the 1st Appellant failed or neglected to appoint or establish for the purpose of the State Congress held on 27/7/20, that the 1st Appellant’s raised this issue in its motion challenging the jurisdiction of the Court wherein it was alleged that Respondent failed to lodge any complaint to the appeal 
committee but failed to show that any such committee was in fact formed by it to enable the Respondent who was aggrieved by the conduct of the State congress to approach it, that the Appellants sought to rely on a document (Exhibit A) dealing with Ward
Congresses and formation of Ward Congresses Electoral and Appeal Committees slated for 14/3/20 which had absolutely nothing to do with the State Congress of 27/7/20.

Now, Articles 60 and 61 of the 1st Appellant’s Constitution (annexed to the affidavit in support of originating summons as Exhibit 11) provide thus:
“REMEDIES
60(1) If any member of the party is aggrieved, he shall report to the appropriate authority.

(2) If he or she is not satisfied, an appeal shall lie with the next higher 
party authority.
(3) All appeals must be dealt with timeously, expeditiously, in any 
event not later than 2 weeks after the filing of the appeal.
(4) The National Executive Committee of the party shall be the final arbiter, provided that failure, refusal or neglect to treat a report, petition, complaint, or appeal on the part of the arbiter shall, it tself, constitute an offence.
APPEAL
61(1) Any member of the party who is aggrieved by a decision taken against him by any of the organs or officers of the party shall have the right of appeal to the immediate higher organ of the party within fourteen days of the decision.
(2) An appeal shall be determined by the appropriate body within twenty-one days from the date of receipt of the notice of appeal by the appropriate Executive Committee."
The point has already been made that where there is a body of rules governing an institution or organisation such as a political party, all members of that institution or organisation are bound by the provisions set out therein. See ABDULKADIR v MAMMAN supra at 31 - 32. ​

Thus, where domestic remedies for the treatment of grievances exist, an aggrieved member of that body or organisation is obliged to, in the first instance, resort to and exhaust the domestic remedies before contemplating or filing a suit in Court, failing which the action will be premature and incompetent. See AKINTEMI v ONWUMECHILI (supra), EGUAMWENSE v AMAGHIZEMWEN [1993] 9 NWLR (PT. 315) 1 and OBALOJA v ETIKAN [1998] 6 NWLR (PT. 553) 320. Articles 60 and 61 of the 1st Appellant’s Constitution (reproduced above) is undoubtedly such a domestic dispute resolution procedure, and the burden is on the Respondent to show that he exhausted them before approaching the lower Court. In the recent case of AGUMA v APC & 2 ORS decided on 5th March, 2021, his Lordship Jauro JSC agreed with the learned trial judge (at pp. 57 - 58 of the unreported judgment) that there was no evidence on the record to show that the claimant (appellant) complied with the internal dispute resolution procedure in Article 21 of the Constitution of All Progressives Congress before he took grievances arising from the Party’s state congress (as in the instant case) to Court, thereby putting cart before the horse. Since a political party such as the 1st Appellant is a voluntary organisation and its Constitution and Guidelines are binding on its members including the Respondent, I take the considered view that it was incumbent on the Respondent who alleged that the 1st Appellant failed to comply with its Constitution and Guidelines in the conduct of the State Congress for Katsina State to demonstrate in the affidavit in support of originating summons that he had himself complied with the 1st Appellant’s internal dispute resolution procedure before initiating action in Court as he did. But there is nothing in the originating summons and supporting affidavit (being the only materials the lower Court was obligated to look at in determining whether its jurisdiction was validly activated) showing that the Respondent complied with Articles 61 and 62 of the 1st Appellant’s Constitution. The contention that the 1st Appellant failed to show that it set up a Special Appeal Panel which the Respondent could have approached to ventilate his grievance is a misplacement of the burden of proof. The onus was on the Respondent who went to Court without exploring the 1st Appellant’s internal dispute resolution procedure show in the affidavit in support of his originating summons that he did so because the 1st Appellant did not set up any Special Appeal Panel in respect of the State Congress to which he could have lodged a complaint: a burden the Respondent failed to discharge. It therefore seems to me that the jurisdiction of the lower Court was not validly activated by the Respondent.
In its ruling of 5/2/21, the lower Court held that “the right of access to Court cannot be made subject to any legislation subordinate to the Constitution. The Peoples Democratic Party’s Constitution derives its validity from the Constitution, its provisions cannot therefore override the provision of the Constitution. The provision of the Constitution according to the right of fair hearing (sic) guaranteed and protected by Section 36(1) of the Constitution to compliance with Article 61 of the PDP Constitution will be unconstitutional and therefore null and void. See BOKO v NUNGWA (supra)” (see p. 499 of the records). I will permit myself to underscore two crucial points here. 

The first point to underscore is that provisions in statutes, agreements or other instruments prescribing internal dispute resolution procedure do not generate the heat of ouster of the jurisdiction of Courts. It is hornbook law that parties cannot by their private treaty oust the jurisdiction of the ordinary Courts of the realm. Nevertheless, the law upholds the sanctity of agreements that are not illegal, and where parties have agreed to a private procedure for resolving their disputes, legal policy has it that the jurisdiction of the Court cannot be validly activated without first exhausting those internal dispute resolution procedures. That explains why the Courts, for instance, do not thirstily assume jurisdiction in the face of an agreement by parties to refer their differences to arbitration. The Constitution of an association such as a political party is a contractual agreement between the association and its members, and between the members inter se and the Respondent is bound by the provisions of the 1st Appellant’s Constitution, including Articles 60 and 61 thereof. See ABDULKADIR v MAMMAN supra.

The second point to underscore is that what this Court decided in BOKO v NUNGWA supra (following GASSOL v TUTARE (2013) LPELR-20232(SC) 1 at 32 –per Galadima JSC) was that an appeal panel set up by a political party to consider complaints arising from its primary election is nothing but “a clog to access to Court as far as S. 87(9) of the Electoral Act is concerned”. That case did not decide that provisions in a political party’s Constitution dealing with internal dispute resolution procedure (such as Ss. 60 and 61 of the 1st Appellant’s Constitution) are unconstitutional. No. The issues raised in that case revolved around a party primary election, which is a prominent pre-election matter under S. 87(9) of the Electoral Act and/or S. 285(14)(a),(b) and (c) CFRN. It is hardly necessary to state that disputes arising from pre-election matters have been isolated and removed from the generality of matters falling within the domestic sphere of political parties, and jurisdiction to adjudicate over such matters is conferred on the Federal and State High Courts, including the High Court of the FCT. Consequently, the right of access to Court to ventilate a dispute arising from a pre-election matter is not constrained in any way by non-compliance with internal dispute resolution procedure of a political party. But the scenario we are confronted with in the instant case is markedly different as it revolves around a party congress which has been held to be a domestic affair of a political party subject to the party’s dispute resolution procedures. See AGUMA v PDP supra. It is therefore obvious that the case of BOKO v NUNGWA supra upon which the lower Court relied in assuming jurisdiction to entertain the Respondent’s suit (that was commenced without exploring the 1st Appellant’s dispute resolution processes) is inapposite and inapplicable. In law, context is everything. See REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE DALY [2001] 3 ALL ER 433, [2001] 1 AC 532 – per Lord Steyn. What must always be borne in mind in citing and relying on cases is that no one case is exactly like another, and it is only when cases are alike that the arguments or submissions applicable to one case would have legal force on the other. See GREEN v GREEN [1987] 3 NWLR (PT. 61) 480 at 501 (per Oputa, JSC). This fourth issue is resolved against the Respondent.

Issue 6: Whether the trial Court was not robbed of jurisdiction to entertain the case for the Respondent's failure to join the ex-officio and statutory members of Katsina State Executive Committee of the 1st Appellant as parties to the action.

The record of appeal reveals that the ex-officio members said to have been excluded from this suit had filed a motion on notice dated 3/12/20 seeking to be joined as necessary parties. The application was opposed by the Respondent who contended that their presence was not required for the effective and effectual determination of the matter. The application for joinder was dismissed by the lower Court in a considered ruling delivered on 9/12/2020. See pp. 439-441 of the records. That ruling is not one of the decisions appealed against, and the implication is that the ex officio members who sought to be joined are satisfied with the ruling of 9/12/20. See UGO v UGO [2-17 18 NWLR (PT. 1579) 219 at 236 - 237 (cited by learned counsel for the Respondent). Quite clearly, the Appellants are crying more than the bereaved in this regard and I have no consolation for them. This issue is resolved in favour of the Respondent. Conclusion
The appeal succeeds. The rulings and final judgment of the lower Court appealed against are hereby set aside. In their stead, I record an order striking out Suit No. KTH/41/2020: Abdulaziz Muntari v. Peoples Democratic Party & 19 Ors for want of jurisdiction. There shall be no order as to costs.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out.

I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have read in draft the judgment delivered by my learned brother, PETER ONYIKENIMIEMI AFFEN, JCA. He has meticulously dealt with all the issues canvassed before us. I agree with his reasoning and conclusions. Repeating in extensor what had admirably been done in the leading judgment in this context adds no value to my brief comments which take the form of concise resolution of the issues that were raised for determination.

The statement of claim and other Court processes filed during Court vocation are valid. But the sitting of the Court during vacation and the orders made thereto are a nullity having contravened the applicable rules of Court.

The respondent becomes a meddlesome interloper, not being a party to the suit before Abdulkadir J., in which the order of interim injunction was made. He is not at liberty to find a fresh action upon the said interim order under the guise of giving effect to it.

The appeal succeeds in part. Issues 1 to 5 are resolved in favour of the appellant against the respondent while issue six is resolved in favour of the respondent against the appellant.

The appeal succeeds. I abide by the consequential orders in the leading judgment.

Appearances:

1. C. Ani, Esq. with him, M. S. Mahuta, Esq. and J. P. Israel, Esq.For Appellant(s)

Teryange Anjov, Esq. with him, Musa Zakari, Esq.
For Respondent(s)