IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIL DIVISION HOLDEN AT ABUJA

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIL DIVISION HOLDEN AT ABUJA BETWEEN HIS LORDSHIP, HON. JUSTICE A.A.I. BANJOKO-JUDGE BETWEEN: SUIT NO: FCT/HC/CV/ 2175/12 1. SENATOR RUFAI SANI HANGA 2. ALH. BADMOS MUTALIF PLAINTIFFS 3. ABDULWAHAB ADEBAYO ADELEKE 4. CHIEF DENNIS AGHANYA AND 1. CONGRESS FOR PROGRESSIVE CHANGE (CPC) 2. PRINCE TONY MOMOH 3. BUBA GALADIMA 4. ABUBAKAR MALAMI 5. INDEPENDENT NATIONAL ELECTORAL COMMISSION ALEX MARAMA ESQ FOR THE PLAINTIFF CHIEF O.O. OBONO-OBLA WITH J.O. OBONO-OBLA FOR THE 1 ST TO 4 TH DEFENDANTS JUDGMENT There are three Applications pending before this Court and they deal with reliefs sought in an Originating Summons, Motion on Notice for Interlocutory Injunction and a Preliminary Objection. The Plaintiffs on record filed an Originating Summons dated and filed the 28 th of September 2012, which was responded to by the defence through a Counter Affidavit dated and filed on the 11 th of 1

2 October There is also on record a Motion on Notice dated the 4 th day of October which was filed on the 5 th of October 2012 and a Notice of Preliminary Objection dated the 8 th of October 2012 which was filed on the 11 th of October 2012 and on the 3 rd day of December 2012, all the Applications were consolidated as one for the purposes of this Judgment with arguments proferred by counsel across the board. For expediency it is imperative to set forth the reliefs sought in each application. In the Originating Summons, four questions were raised for determination and they are as follows:- 1) Whether the National Convention of the 1 st defendant can be validly convened without complying with Article 7 (27) (B) of the Constitution of the Congress for Progressive Change (CPC) and the provisions of Section 85 (1) of the Electoral Act as amended? 2) Whether Sixteen (16) State Branches can under any circumstances form a quorum for the purposes of validly carrying on the business of the National Convention of the 1 st defendant in view of Article 7 (27) (C) of the 1 st defendant s Constitution? 3) Whether the National Convention of the 1 st defendant can be convened without the requisite Notice or transact any business except those contained in the Notice of Convention? 4) Whether the 5 th defendant can lawfully recognise any resolution or election/appointment of officers of the 1 st defendant when their purported election was held in contravention of the 1 st defendant s Constitution and the provisions of the Electoral Act 2010 as amended? 2

3 Upon the resolution of these questions, the plaintiff seeks the following reliefs:- 1) A Declaration that the purported National Convention of the 1 st Defendant held on the 4 th to 6 th day of January 2011 is unconstitutional and illegal. 2) A Declaration that every decision contained on any resolution emanating from the purported National Convention held on the 4 th to 6 th day of January 2011 is unconstitutional, illegal, null, void and of no effect whatsoever. 3) An Order of Court directing the 2 nd, 3rd and 4 th Defendants and other members of the National Executive Committee elected at the purported convention on the 4 th to 6 th January 2011 to handover every property of the 1 st Defendant in their possession to the Plaintiffs forthwith. 4) A Perpetual Injunction restraining the 1 st and 5 th Defendants from recognizing the 2 nd Defendant as the National Chairman, 3 rd Defendant as the National Secretary, the 4 th Defendant as the National Legal Adviser of the 1 st Defendant and all other National Executive Committee members elected in the said convention. 5) A Perpetual Injunction restraining the 2 nd, 3 rd and 4 th Defendants and other National Executive Committee members elected at the Convention of the 1 st Defendant held 4 th to 6 th January 2011 from parading themselves as the National Chairman, National Secretary, National Legal Adviser and National Executive Committee respectively, of the 1 st Defendant. 6) A Consequential Order of the Court that the 5 th Defendant should relate with the Plaintiffs as the subsisting National Officers of the 1 st Defendant. 7) The Cost of this action. 3

4 In support of this Application is a twenty six (26) Paragraph Affidavit deposed to by the 1 st Plaintiff and twelve Annexures as well as the Plaintiff s Address written in support of the Originating Summons. In opposition, learned counsel to the defence filed a seventy three (73) Paragraph Counter Affidavit deposed to by Engineer Buba Galadima, the 3 rd Defendant, which has twenty five (25) documentary exhibits attached as Exhibits CPC TO CPC 17. The Plaintiff Replied on Points of Law through a Written Address dated the 18 th of October 2012 and filed on the 2 nd of November 2012, which was a response to the Reply to the Originating Summons and Preliminary Objection and orally submitted on S. 85 (1) of the Electoral Act stating that this is a mandatory provision and further referred to Exhibit SSH 12 arguing that there is no provision providing that one must resign from his position before contesting an elective position. The applicant also adopted his Further and Better Affidavit to the Preliminary Objection on this point. In his oral submission before the Court, learned counsel for the Applicant stated that the Originating Summons was dated the 28 th of September 2012 as a result of this Court s Order that new processes should be filed before it. According to counsel, he stated that the issues are very clear as the plaintiffs are aggrieved with the processes leading up to the convention which took place on the 4 th to 6 th of January and contends that the procedure was not strictly adhered to. Reference was made to Exhibit SSH 11, the letter from INEC which had stated on the 11 th of January 2011, five days after the purported convention that no congresses were held in 20 States of the Federation contrary to the provisions of Article 7 (27)(c) of Exhibit SSH 12. This section had also provided for two 4

5 third of the States, and he argued that 16 States of the Federation did not represent two thirds, making the process faulty. This non-compliance was aside of the fact that twenty one (21) days notice for the convention, as specified in the Constitution was not complied with and he urged the Court to uphold the prayers sought in the Originating Summons, as you cannot put something on nothing and expect it to stand. Further, the party s constitution is clear that it is only at the National Executive Convention of a party that the Board of Trustees can be nominated and affirmed and added that there is no Board of Trustees of the party, as there was never a convention for the 4 th to 6 th of January 2011 because of the faulty steps taken leading to the convention and he finally urged the Court to grant their prayers in the Originating Summons. Learned counsel for the defence in his oral submission before the Court stated that if the Court looks at the reliefs sought in the Originating Summons, there is nothing touching on the personal injury suffered by any of the plaintiffs and added that they must establish that the injury they suffered is over and beyond that of other members. Moreover, they cannot complain after benefitting from decisions taken. He further submitted that the letter from INEC did not state that the convention held was illegal, but merely advised that the congresses were incomplete, which is a permissive but not mandatory advice. Had it been mandatory, INEC would not have attended and supervised the convention. He urged the Court to interpret the entire S. 85 (1) and (2) to see the intention of the legislators. Learned defence counsel further argued that the action is founded on SSH 11 dated the 11 th of January 2011 and noted that the 5

6 Plaintiffs went to Court three months after the cause of action arose. The period was outside the legally stipulated period of three months, as the cause arose as a result of the action of the 5th Defendants, who is a public officer within the Public Officers Protection Act. He stated that by S. 154 of the new Evidence Act, the Court should hold that all the plaintiffs acquiesced to everything done by the party and cited AMECHI S CASE. Further, Exhibit CPC A dated 1 st September 2010 was addressed to the National Chairman of the CPC, who was then the plaintiff. The second application before the Court is the Motion on Notice for Interlocutory Injunction, which was brought pursuant to Order 7 and 31 of the High Court Civil Procedure Rules 2004, of this Court, and in it, the Plaintiffs/Applicants seek the following:- 1) An Order of Interlocutory Injunction restraining the 2 nd to 4 th defendants/respondents by themselves, servants, agents, privies or howsoever called from parading themselves as the National Executive Committee of the 1 st defendant and from carrying out or implementing any decisions, resolutions to: a) Dissolve or Constitute any caretaker committee of the 1 st defendant or b) Constitute any committees or representatives to go into merger with any political party c) Schedule any party congress or convention to dissolve the 1 st defendant, d) Draft any new party documents whatsoever, party constitution, party manifestos, party program, party name, party motto or colour or emblem pending the determination of the Originating Summons. 2) And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance of this case. 6

7 It was stated that the Applicants would at the hearing of this application rely on the affidavit of Senator Rufai Sani Hanga attached to this Motion paper. Filed in support is a sixteen (16) Paragraph Affidavit deposed to by the 1 st Plaintiff as well as six (6) annexures and a written address in support of the Motion for Interlocutory Injunction. In opposition, the Defence filed a Counter Affidavit of twenty eight (28) Paragraphs dated and filed on the 2 nd of November 2012 which was deposed to by the 2 nd defendant and attached two annexures. In response, learned counsel to the Plaintiff filed a Further and Better Affidavit dated and filed on the 29 th of November 2012 which contained three (3) annexures. He submitted that there is a pending matter before the Court filed in June 2011 and during the pendency of this matter, steps have been taken to dissolve the 1 st defendant, referring the Court to Exhibits SSH1 to 6A. According to counsel, a renewal committee was set up to wind up the party by February 2012 and merge with other political parties. He pointed out that Exhibit SSH6A was a report on the merger and he urged the Court to grant the application so that the Court does not give judgment in futility as the plaintiffs cannot be compensated if the party is dissolved. He urged the Court to so hold. Arguing conversely, learned counsel to the Defendants submitted that in so far as the reliefs sought in the Originating Summons by the plaintiffs such as Reliefs 4, 5, and 6 are similar to the reliefs sought in the Motion for Interlocutory Injunction, the Court should resist the temptation to judge the substantive matter in an interlocutory application. He further urged the Court to disregard the Further and Better Affidavit in support of the Motion because it is a clear attempt to overreach the 1 st to the 4 th defendants 7

8 contrary to S. 36 (1) of the 1999 Constitution, by the subtle introduction of new issues through the back door. According to learned counsel, at the time the Motion for Interlocutory Injunction was filed, these documents were existing particularly Exhibits SSHB1, and 3 but the plaintiff did not attach them to the affidavit in support of the Motion. He referred the Court to Exhibits SSHB2 and the Guardian Newspaper of November 8 th and urged the Court not to admit these documents as they were made during the pendency of this action and further relied on S. 83 (3) of the Electoral Act of He urged the Court to dismiss the Motion for Interlocutory Injunction because if an Order was made, it would destabilize the affairs of the 1 st defendant and pointed out that these committees were elected since the 6 th of January 2011 with this case being filed on the 28 th of September Fresh documents were added to the application since the filing on the instruction of the Court. He submitted that he who comes to equity must come with clean hands and stated that the plaintiffs were not vigilant. Finally, learned counsel argued that the 2 nd to 4 th defendants are not the only members of the National Executive Committee as there are 24 other members as shown in Paragraphs 11 i-xxiv, who were not joined to this action. This would create confusion and infringe on the rights of the other members who were not given the opportunity to present their own side of the story. He urged the Court to dismiss this application with costs. Learned counsel to the Applicants replied that contrary to the September date cited by the defence, this action was filed on the 30 th of June 2011 as the matter was pending before the Federal High Court. 8

9 The final application is the Preliminary Objection dated the 8 th and filed on the 11 th of October 2012 which raised four (4) Grounds of Objection as follows:- 1) This Honourable Court is divested of jurisdiction to hear and determine this case by virtue of the Plaintiffs lacking the locus standi to institute this action. 2) This Court lacks the jurisdiction to entertain this suit, the Plaintiffs having lost their Right of Action against the 5 th defendant by virtue of the provisions of Section 2 (a) of the Public Officers Protection Act, 2004, by failing to bring this action within the three (3) months of the accrual of their cause of action on the 11 th of January ) The Plaintiffs have not complied with the conditions precedent inherent in Article 18 of the Amended Constitution, 2011, of the 1 st defendant and 4) The Plaintiffs have not joined all necessary parties to this case. The Court was given notice that the 1 st to 4 th defendants will rely on their arguments of the Preliminary Objection as contained in the arguments of the Written Address of the 1 st to 4 th defendants to the Counter Affidavit in opposition to the Originating Summons of the Plaintiffs. Learned counsel relied on his written address opposing the Originating Summons at Pages 12 to 40 and particularly at Pages 15 to 28. He argued that the position taken by the Plaintiff s counsel that they cannot raise the Public Officers Protection Act is balderdash as the issue of jurisdiction can be raised suo moto and at any time. He submitted that the Independent National Electoral Commission (INEC) is on the side of the defendants and since it is a public office he can raise this objection. He urged the Court to look at the reliefs sought by the Plaintiffs to note that they have to do 9

10 with the domestic or internal affairs of the defendant, which is a political party. He stated that the plaintiffs have invited the Court to resolve these questions which are political matters for which the Court has no jurisdiction to dabble into and further referred to the cases of ONUOHA VS OKAFOR (1983) 14 NSCC AT 494 AND OZIGBO VS PDP (2010) 9 NWLR PT 1200 AT 601. In his oral arguments, he stated that the 1 st plaintiff resigned as Chairman to contest the election and he signed that the National Executive Committee were properly conducted so is estopped from complaining. He listed out other members of the party whose rights would be affected by the decision of the Court. He further stated that the 3 rd plaintiff had accepted the National Convention and had even handed over to the new financial secretary in 2011, as seen in Exhibit CPC 10, only for him to turn round and challenge the convention as not being properly elected. As regards the 4 th defendant, by Exhibit CPC 11 the report of the ad-hoc committee suspended him as a result of the report, and he collected same as seen by Exhibit CPC 12. Learned counsel pointed out the fact that the person who signed his letter of suspension is the 1 st plaintiff. Exhibit CPC 13 is the letter of the 11 th of December 2010 written by the 4 th defendant pleading for forgiveness. He is now challenging the convention and urged the Court to apply the doctrine of estoppel in his regard. Further, the 1 st plaintiff claimed not to be aware of the convention but he was attending meetings of the 1 st defendant, as seen in Exhibit CPC 8 and 8B 8C, 8D, CPC 14 and CPC 15 where one of the issues discussed was the National Convention. He has now come back to challenge the said convention. Also referred to are Exhibits CPC A, B and C and he finally urged the Court to sustain the Notice of Preliminary Objection. 10

11 Learned counsel referred to his Reply to the plaintiff s submission on the Preliminary Objection and submitted that all the issues raised by him were not reacted to such as the issues on locus standi, the violation of S.2 of the Public Officers Protection Act (POPA) and the non-compliance of the condition precedent of exploring internal conflict resolution mechanism. He went on to say that all necessary parties elected to the National Executive Committee were not joined in this action for the Court to make an Order nullifying their election. He urged the Court to uphold the objection and strike out the case. In response, learned counsel to the plaintiff relied on his written address attached to the Originating Summons as well as the Further and Better Affidavit deposed in support dated the 16 th of October 2012 and the two attached annexures. He relied also on his Reply Address dated the 16 th and filed on the 17 th of October Adumbrating on the issues raised by him, learned counsel submitted that the issue is on the determination of S.85 (1) of the Electoral Act 2010 as amended and also on the interpretation of the provision of Exhibit SSH 12, the parties constitution, which required at least 21 days notice. He pointed out that Article 7 (27) (p) (4), and the said constitution were in existence by the time of the purported amended constitution of the party was made. The only document before the Court Exhibit SSHP dated the 21 st of December 2010 signed by Prince Dr Lanre Tejuoso, the Chairman of the Convention and Congress Committee was dated the 24 th of December 2010 giving the notice of a convention to take place on the 4 th of January He argued that the period between 24 th of December 2010 to 4 th of January 2011 was not up to 21 days and 30 days as provided by the Constitution of the 1 st defendant. Therefore, the process leading up to the Convention was not 11

12 followed in accordance with the party s constitution and the Electoral Act. Further, he argued that there was no provision in SSH12, the constitution, providing for an internal conflict resolution mechanism, and stated that Exhibit CPC 3 was not in existence because the process to adopting same was not followed. As regards the submission made concerning the Public Officers Protection Act, (POPA) learned counsel submitted whilst relying on Exhibit SSH11 attached to the Originating Summons, that this was a letter from INEC written to the plaintiff five days after the so called purported convention informing them of the noncompliance of the requirement that Congress should be conducted in 20 States of the 36 States of the Federation. According to counsel, it was not disputed by the other side that this letter opened a channel for discussion between the plaintiff and the 5 th defendant. It was after the conduct of the Presidential Elections, on April 15 th that the plaintiffs realised that the 5 th defendant could not be trusted. He submitted that in computing the time for the application of POPA, April 15 th is therefore when time started to run and is the date there was an identifiable person to sue and it was when the cause of action arose. He surmised that as from January 7 th to 5 th of April 2011, the cause of action had not arisen and the materials to be needed to be used by them were only available as from the 5 th of April. Had the plaintiff gone to Court earlier, the action would have been speculative because talks were still on-going. This fact, he contended, was not disputed by a counter or further affidavit by the opposing side in this action. He cited the case of OGOR VS ENPEE LTD (2004) 17 NWLR PT 903 AT PG 449 AT PARA 3. Furthermore he argued that before the Public Officers Protection Act can avail the defendant, the cause of action must be 12

13 established. He submitted that there was nowhere the 1 st to 4 th defendants established they fact that they are public officers carrying out public duties and responsibilities, and so the protection under the Act cannot avail them. In regard to the issue of joinder, he referred the Court to the case of UNILIFE DEVELOPMENT CO. VS ADESHINGBIN (2001) 4 NWLR PT 204 AT 609; ODUWOLE VS SSDPC (2004) 9 NWLR PT 878, PG 382 AT PG 407 AT PARAS E-G AND ORDER 10 RULE 6 OF THE FCT HIGH COURT RULES He contended that it was not compulsory for the plaintiff to bring all the so-called executives elected in the so-called purported convention. Moreover, Order 10 Rule 5 empowers the Court to join any persons in an action before it. He argued that the case of AWONIYI cited by the defendants has no relevance to this issue. As regards Exhibit CPC 12, the suspension letter, he urged the Court to observe that even though the name of the 1 st plaintiff was written there, the letter was signed on his behalf. Finally, he urged the Court to hold that it has jurisdiction to entertain the matter referring to his Further and Better Affidavit at Exhibit SSH E2 which is the program of events. In Reply, learned counsel to the defence queried whether the plaintiffs, having taken part and deriving benefits therefrom are estopped from challenging the validity of events leading up to the convention, and added that a political party has a right to waive any of the provisions in its constitution citing the unreported case of DR. ABDULLAHI BABA ABDUL VS CPC & 4 ORS, DELIVERED BY THE COURT OF APPEAL, ABUJA DIVISION ON THE 28 TH OF JUNE

14 On the issue of internal mechanisms for resolution, he stated that it was contained in Exhibit SSH 12 as Article 26 (v) and the plaintiffs did not avail themselves of it. Further, the 5 th defendant supervised the convention as well as the elections conducted there. The document clearly shows that the cause of action arose on the 6 th of January 2011 when the National Elections took place and not the 30 th of June. He finally urged the Court to uphold the Preliminary Objection. After a careful appraisal of all the applications before the Court as well as the written and oral submissions of learned counsel across the divide, it is clear that the Notice of Preliminary Objection deals principally with the Originating Summons and so the Court will consider the applications in the following order: the prayers in the Motion on Notice would be considered first, followed by the Preliminary Objection and if overruled, the Court will then consider the prayers in the Originating Summons. As regards the Motion on Notice for an Interlocutory Injunction, there is a 15 Paragraph Affidavit deposed to by the 1 st plaintiff who was the National Chairman on behalf of all the plaintiffs stating that he was informed by Ibrahim Musa that he was nominated on the 9 th of December 2011 by the 2 nd defendant on behalf of the 1 st defendant as a member of the 1 st defendant s renewal committee and attached the said Musa s letter of nomination as Exhibit SSH 1A, and as member, was invited to the stakeholder s forum in June Consequent to the meeting held on the 16 th of June 2012, a report was submitted to the purported Board of Trustees on the 22 nd of July 2012 and this was attached as Exhibit SSH 3A. It is deposed that based on this report, the 1 st defendant scheduled a programme of activities, attached as Exhibit SSH 4A, to windup the 14

15 activities of the 1 st defendant with a view to working out a merger with other political parties. He stated that during the pendency of this suit, the defendants went ahead to set up this committee, and the activities of the merger have been reported in various newspapers, with one of such being the This Day Newspaper of the 20 th of August 2012, attached as Exhibit SSH 6A. Also attached as Exhibit SSH 5A is the copy of the Original Certificate of Registration of the 1 st defendant with INEC. It is contended that unless an Order of Injunction is granted, the defendants would go ahead to windup the 1 st defendants and merge same with other political parties, and it is in the interest of justice to grant same in order to avoid prejudice to the plaintiffs. In his written address, learned counsel for the applicants submitted that the Court should be satisfied that there are serious questions to be tried at the hearing and from the facts before it, there must be a probability that the plaintiff is entitled to the reliefs sought. The reason for such an application he argued, is to keep matters in status quo pending the determination of the substantive suit and to ensure that if at the end of the day the Court finds that the applicant is entitled to an Order of perpetual injunction, his legal right would not have been trampled upon that pecuniary damages would not adequately compensate him and there can be no return to the status quo. Reference was made to Exhibits SSH1-4 attached to the affidavit to show that despite the pendency of this suit, the defendants commenced the process of winding up the 1 st defendant for a possible merger with other political parties. If the Court does not grant the injunction, then the 1 st defendant will not be in existence by the end of the month and he cited the decided cases of OBEYA MEMORIAL HOSPITAL VS ATT. GENERAL OF THE FEDERATION (1987) 3 NWLR PT 60 AT 15

16 PG 323 AND ADEWALE VS GOV. EKITI STATE (2007) 2 NWLR PT 1019, PG 634 AT 652 AT PARAS E-F AND C-D. He argued that there are serious issues to be tried such as the gross violation of the provisions of the Electoral Act and the 1 st defendants constitution and stated that the plaintiffs never resigned their positions as National Executive Committee of the 1 st defendant and he urged the Court to grant the prayers sought in the application. Further, the balance of convenience is in favour of the applicants as if the defendants are not stopped, the party will no longer be in existence and cited the cases of OKAFOR VS A.G. ANAMBRA STATE (1988) 2 NWLR PT 79 AT PG 736 AND ADEWALE CASE CITED SUPRA. In conclusion, he submitted that this is a matter of competing legal rights with questions of fact and not law and the Court would consider whether damages is an adequate compensation in the event that they succeed in the substantive trial and he urged the Court to grant the interlocutory injunction pending the outcome of the suit already before the Court. In opposition, learned counsel to the defendants filed a twenty eight (28) paragraph counter affidavit deposed to by the 2 nd defendant, which essentially deposed that the facts in the affidavit in support are false, misleading and speculative. Further, the Chairmanship of the 1 st plaintiff in the 1 st defendant s party was challenged and argued that he is now an ordinary member of the party, having resigned his office as Protem National Chairman to contest the Governorship Elections held in Kano State for the April 2011 general election. The 2 nd defendant stated that he was duly elected as Chairman at the National Convention held under the supervision of INEC on the 6 th of January 2011 and added that there were other elections for positions on that day. Further, other members were not joined to this case and their rights would be 16

17 prejudiced if the prayers in this Motion were granted. He also deposed that the suspension of the 4 th plaintiff was confirmed by the judgment of this Court on the 19 th of June 2012 in SUIT NO: FCT/HC/CV/807/2010 BETWEEN DENNIS AGHANYA VS PRINCE TONY MOMOH AND CONGRESS FOR PROGRESSIVE CHANGE. He, the 2 nd defendant, agreed with the deposition of the transfer of this case from the Federal High Court to this Court and stated that it was based on their robust objection on jurisdiction filed by them. More worrying is the fact that he deposed in Paragraph 20 that Exhibit SSH 1A was a contrivance to mislead the Court as he never wrote nor signed such a letter appointing Ibrahim Musa as a member of such committee, and further pointed out that Exhibit SSH 2 A was not signed by anybody and so is a worthless and void document since it was not initialled or signed. Same argument goes for Exhibits SSH 3 & 4. Further, he contended that the Renewal Committee was constituted since July 2011, long before the institution of this suit and the fact of Paragraph 11 of the affidavit in support was false and speculative. The 1 st defendants have not merged with any other party and the procedure for merger is well articulated in the Electoral Act 2010 (as amended). Further, the Certification of Incorporation exhibited by the plaintiff is not the property of the 1 st plaintiff but that of the 1 st defendant. In his written address, learned counsel for the respondent submitted on the statement of facts and raised a sole issue for determination, namely: Whether the Applicants have supplied sufficient materials in their affidavit in support of their Motion to entitle this Court to exercise its discretion in their favour and grant the reliefs sought? Learned counsel for the respondent contended that because the reliefs sought is a discretionary one, the applicant ought to have placed sufficient materials and supplied sufficient particulars to 17

18 entitle the Court to act in their favour. He referred to the case of WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1981) 1-2 S.C. AT 145. According to counsel, the reasons given by the applicant are unconvincing and not weighty enough for the Court to exercise its discretion in their favour. The exhibits shown were not signed by anyone therefore making them worthless and void. He referred to S. 83 (4) of the Evidence Act 2011 and further cited the case of A.G. ABIA STATE VS AGHARANYA (1999) 6 NWLR PT 607 AT 362 CA. To this end, he urged the Court to disregard the said documents. He further submitted that the Court must exercise its discretion judicially and judiciously in the interest of justice and the Court must be satisfied that it is right and proper that the order for injunction be given to keep the status quo and he cited factors for consideration by the Court such as the fact that there must be serious questions for determination as held in the cases of OBEYA MEMORIAL HOSPITAL VS AG FEDERATION (CITED SUPRA); KOTOYE VS CENTRAL BANK OF NIGERIA (1989) 2 SCNJ AT 35 AND KUFEJI VS KOGBE (1961) 1 ALL NLR AT 113 AT 114. The Court must also be minded to note the balance of convenience, and find that in the circumstances of the case, it would be in the overall interest of justice to grant the application than to refuse it and added that the burden of proving this lies in his favour is on the applicant and cited the cases of MISSINI & ORS VS BALOGUN & ANOR (1968) 1 ALL NLR PT 1 AT 13; HILTON VS EARL, OF GRANVILLE (1941) CR. AND PH 283 AT PG 279; OBEYA S CASE (CITED SUPRA); AND LADUNNI VS KUKOYI (1972) 1 ALL NLR PT 1 AT 1. The applicant must also further show that having regard to the facts and circumstances of the case, damages cannot be an adequate compensation for his damage should he succeed at the trial Court, and he cited the cases of MISSINI (CITED SUPRA) AND ABDULLAHI VS MILITARY GOVERNOR OF LAGOS STATE 18

19 (1989) 1 NWLR PT 97 AT 356. Further, the conduct of the parties are considered and he cited the case of JACKSON VS HAMLYN (1953) 1 WLR AT 713. Learned counsel suggested that this factors are in no way exhaustive and in general terms, the Supreme Court in JOHN HOLT NIGERIA LTD VS HOLTS AFRICAN WORKERS UNION OF NIGERIA AND CAMEROONS (1963) 2 SCNLR AT 383, recognised that the principles for the grant of this application are impossible to regulate and are not granted as a matter of course. He contends that the applicant has woefully failed to establish that they are entitled to the reliefs sought. He further submitted that the reliefs sought in this application are such that to consider same at this stage would amount to hearing the substantive issues or questions for determination at this interlocutory stage as they are encompassing, embracing in nature of the substantive issues. He referred to the fourth and fifth relief sought in the Originating Summons for perpetual injunctions, and stated that the applicants cannot subtly get from the Court reliefs sought in the substantive matter. The purport of this application is to preserve the status quo and cited the cases of F.S.B. INTERNATIONAL BANK VS IMANO NIGERIA LTD (2000) 7 SCNJ AT 65; ADAMU VS AG NASSARAWA STATE (2007) 6 NWLR PT 1031 AT 485. According to counsel, it is unconscionable and inequitable for the applicants to seek to restrain the defendants from parading themselves as executives of the party despite being elected at the convention on the 6 th of January 2011 who have been carrying on their various functions and responsibilities as members of the NEC of the party. He submitted that the Court does not act in vain citing the cases of JOHN HOLT (SUPRA); OZIOKO VS UGWU (1994) 4 NWLR PT 37; AYORINDE VS AG OYO STATE (1996) 3 NWLR PT 434 AT 20 AND OKAFOR & ORS VS A.G. ANAMBRA STATE & 19

20 ORS (1992) 8 LRCN AT 407.He questioned whether it would serve the ends of justice to restrain the defendants who have been performing their duties for about two years and urged the Court not to accede to the application because it will bring total chaos and anarchy in the affairs of the 1 st respondent. Further, there is nothing in the plaintiffs affidavit to inure the balance of convenience in their favour and this balance must not be equated with the adequacy of compensation. In this regard, it is the defendants that would suffer more if an order of injunction is granted. Learned counsel cited the cases of NWANGANGA VS MILITARY GOVERNOR OF IMO STATE & ORS (1987) 3 NWLR PT 59 AT 185; MISSINI S CASE (CITED SUPRA); WOLUCHEM VS WOKOMA (1974) 3 SC AT 153; NIGERIAN JOINT AGENCY VS MILITARY GOVERNOR OF CROSS RIVER STATE & ORS (1986) 5 NWLR 5 NWLR PT 41; KANNO VS KANNO & ORS (1986) 5 NWLR PT 40 AT 138; ILECHUKWU VS IWUGO (1989) 2 NWLR PT 101 AT 99; ACB VS AWOGBORO (1991) 2 NWLR PT 176 AT 711; ORJI VS ZARIA INDUSTRIES LTD (1992) 1 NWLR PT 216 AT 124; ADEDEJI VS AKINTARO (1991) 8 NWLR PT 208 AT 209 AND UDEZE VS ORAZULIKE (2000) 3 NWLR PT 648 AT 217. Finally, he submitted that the applicants have not shown that there is a res to be protected by the grant of an injunction, and the res is not perishable and he urged the Court to deny this application. The Applicants in their Further and Better Affidavit of 13 Paragraphs deposed to the fact that the 1 st plaintiff was still the National Chairman as he never resigned. It was further disputed that there was any election as the process leading up to the National Convention is an issue for determination by this Court. The 1 st plaintiff never resigned nor was the 4 th suspended at any time for any reason whatsoever. In Paragraph 9, the applicants deposed to the fact that the 1 st defendants are in serious 20

21 discussions with ACN and other political parties on the merger and he attached as Exhibit SSHB1 an internal memo from the 3 rd to the 2 nd defendant dated the 28 th of August 2012, as well as Exhibit SSHB2, a certified true copy of Guardian newspaper dated the 8 th of November 2012, and he urged the Court to grant the application in the Motion on Notice. After a careful appraisal of all the processes as well as the welldefended arguments from both parties in this application, one fact is clear and that is that the two counsel in the matter, appreciate the factors to be considered by the Court in an application of this nature. In an Interlocutory Injunction application, the Court has to decide a number of important factors including: (a) that the Applicant must show that there is a serious question to be tried i.e. that the Applicant has a real possibility, not a probability of success at the trial, notwithstanding the Defendant s technical defence (if any). See the case of Obeya Memorial Specialist Hospital v. A.G., Federation NWLR (Pt. 60) 324 followed. In UNION BEVERAGES LTD VS PEPSICOLA INTERNATIONAL LTD & ORS (1994)2 SCNJ AT 157,it was held that another fundamental rule of law is that it is for an applicant for an interlocutory injunction to satisfy the Court that there is a serious question to be tried as between him, the applicant and the defendant, the respondent. An application of this nature must satisfy the Court, if he so succeeds, that there is a right which ought to be protected. See ADIO JSC IN OBEYA S CASE (CITED SUPRA); ONYESOH VS NNEBEDUM (1992) 3 NWLR PT 229, AT 315 (b) That the Applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it. (Missini vs. Balogun (1968) 1 All 21

22 N.L.R. 318). IN MR D.O. ORJI VS ZARIA INDUSTRIES LTD & ANOR, it was held that the governing principle in considering this point is whether in case the appellant succeeds in his claim, he could not be adequately compensated by an award of damages against the respondents and that the defendant are financially in a position to pay the damages awarded. In the case of ADAMU VS SUEMO (2008) ALL FWLR PT 415, 1784 AT PG 1799 PARAGRAPH E-H (CA), the Court of Appeal stated that in determining the balance of convenience in an application for interlocutory injunction, the Court must weigh the inconvenience, the degree of hardship and damage that would be suffered by the applicant/plaintiff against that of the respondent/defendant in deciding whether to grant this Order. Put in other words, there must be the consideration of the irreparable damage or injury which the defendant would suffer if the injunction was granted should the case be subsequently decided in his favour and that which the plaintiff might sustain if the injunction was refused should she ultimately obtain judgment in her favour. Per OMOLEYE JCA IN AKINKUGBE VS BUCKNOR (2004) 11 NWLR PT 652; AND OTU VS UDONWA (2000) 13 NWLR PT 683, AT 157 AND UDEZE VS ORAZULIKE TRADING COMPANY LTD 3 NWLR PT 648 AT 203. (c) That the Applicant must show that damages cannot be an adequate compensation for his damage or injury, if he succeeds at the end of the day.in AYORINDE VS A.G. & COMMISSIONER OF JUSTICE OYO STATE & ORS (1996) 3 NWLR PT 434 AT 20, it was held that the Court must consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. Where 22

23 damages would be adequate remedy and the defendant would be in a financial position to pay the damages, interlocutory injunction would not be granted even if the plaintiff s claim is shown to be strong at the stage of making the application. See the cases of AMERICAN CYNAMIDE VS ETHICON LTD (1975) 1 ALL ER 504 AT 510; JOHN HOLT NIG LTD VS HOLTS AFRICAN WORKERS UNION OF NIGERIA AND CAMEROONS (1963) 1 ALL NLR 379 AT 383; MISSINI S CASE (CITED SUPRA); NWANGA VS MILITARY GOVERNOR OF IMO STATE (1987) 3 NWLR PT 59, 185 AT 194 PARA E AND GOVERNOR OF IMO STATE VS ANOSIKE (1987) 4 NWLR PT 66 AT 663 AT 670 PARAGRAPH B (d) That the Applicant must show that his conduct is not reprehensible, for example that he is not guilty of any delay. (e) No order for an interlocutory injunction should be made on notice unless the Applicant gives a satisfactory undertaking as to damages save in recognized exceptions. SEE KOTOYE VS CBN & ORS (1989) ALL NLR AT 76; GRAHAM VS CAMPBELL ( ) 7 CHD 490 AT PG 494; HAMA VS OSARO LAI (2000) 6 NWLR PT 661 AT 515; AKINLOSE VS AIT LTD (1961) WNLR AT 116; WOLUCHEM VS WOKOMA (1974) 3 SC AT 153. The undertaking as to damages which ought to be given on every interlocutory injunction is one in which, unless in special circumstances, effect ought to be given. (f) Where a Court of first instance fails to extract an undertaking as to damages, an Appellate Court ought normally to discharge the order of injunction on appeal. (g) the application is usually granted with the object of keeping matters in status quo until the question in issue between the parties is determined see the case of AKIBU & ORS VS ODUNTAN & ORS (1991) 2 SC AT 77; OJUKWU VS LAGOS STATE GOVERNMENT (1986) 3 NWLR PT 26, AT 39 (CA); OBEYA S CASE (SUPRA) AND AMERICAN CYANAMIDE (SUPRA) 23

24 (h) The applicant must establish a probability or a strong prima facie case that he is entitled to the right of whose violation he complains and subject to this being established, the governing consideration is the maintenance the status quo pending the trial. See the case of DONMAR PRODUCTION LTD VS BART & ORS (1967) 1 WLR 740 AT 742 (i) IN IDEOZU & ORS VS OCHOMA & ORS (2006) 2 SC PT 2 AT 113, it was held that once the act or conduct is completed, the relief of interlocutory injunction is totally spent as it has no life to attack or tackle. The only remedy available in respect of a completed act or conduct is perpetual injunction which is last in perpetuity per TOBI JSC PG 31 PARA A-C (J) IN KWANKWASO VS GOVERNOR OF KANO STATE (2007) ALL FWLR PT 363 AT 179 AT 198 PARA F-H (CA), an Order of interlocutory injunction is negative and restrictive in nature and so is made to preserve the res pending litigation or to prevent a breach. There is a difference in the quality of evidence necessary to entitle an applicant for an interlocutory injunction, all that the applicant is to show is that there are serious issues to be tried, that the balance of convenience is on his side, that his injury, if the defendant is not restrained, that he is ready to enter into an undertaking as to damages. Now in considering this application for an interlocutory injunction, it is important to bring to bear the reliefs sought there under to decide whether it is just at this point in time to grant the reliefs. The applicant had first of all sought this injunctive order pending the resolution of the substantive Motion which in fact is now under consideration in the consolidated applications and so it is prima facie a double attack on the issues raised in that the reliefs sought are incorporated into the reliefs sought in the substantive case. It becomes pointless to so consider same as the Court must first 24

25 establish facts ascertainable from the arguments adduced in the substantive case to decide on the rights in this application. To make an order to stop the 2 nd to 4 th from parading themselves as the National Executive Committee of the 1 st defendant and stop them from carrying out the duties sought to be restrained would necessarily entail a consideration of whether the convention was legally held in accordance with the law and would entail delving into the main issues in the claim before the Court. To start with, the power of the Court to grant or refuse an interlocutory injunction is an equitable one, and the power is rightly exercised if done judicially and judiciously. Reference is made to the cases of NDIC VS SBN (2003) 1 NWLR PT 801 AT 311 AND OLADEJO VS ADEYEMI (2000) 3 NWLR PT 647. The scope of an interlocutory injunction is limited to the actual res in the suit. It is usually based on specific claims or reliefs sought in the substantive suit. See the cases of EFE FINANCE HOLDINGS VS OSAGIE OKEKE, OTEGBOLA & CO (2000) 5 NWLR PT 658 AT 536; ADEWALE CONSTRUCTION COMPANY LTD VS IBWA (1991) 7 NWLR PT 204, 498 AND OKOYA VS SANTILLI (1991) 7 NWLR PT 206 AT 753. In GROUP DANOVE & ANOR VS VOLTIC NIG LTD (2008) 7 NWLR PT 1087 AT 637 S.C., it was held that in an application for an injunction pending the determination of the substantive claim, the Court has a duty to ensure it does not in the determination of the application, determine the same issue or issues that will arise for determination in the substantive suit. See ACB LTD & ANOR VS PRINCE AWOGBORO & ANOR (1962) 2 SCNJ. Care must be taken to avoid making pronouncements that may prejudice the fair trial of the substantive suit. At this stage, the only evidence is the incomplete, untested affidavit evidence and a Court should, at this stage refrain from making pronouncement on issues to be decided 25

26 in the substantive suit, otherwise it would fall into the unhealthy situation of deciding the issues twice. Regard is had to the cases of D.P.C.C. LTD VS B.P.C LTD; EGBE VS ONOGUN (1972) 1 ALL NLR AT 95 AND ONIRU VS GBADAMOSI (1971) 1 ALL NLR 355. The purpose is to regulate the position of the parties pending trial whilst avoiding a decision on such issues which could only be resolved at the trial. In HALSBURY S LAWS OF ENGLAND 4 TH EDITION, VOL 24 AT PAGE 853, it was stated that the principle is to aid the plaintiff s alleged right without waiting for the right to be established. A corollary to this principle is that a Court is not to try a contention in a case twice whilst considering this application. The correct thing to do is to stop hearing the application and accelerate the trial of the substantive suit. See the case of JOHN HOLT (1963) (SUPRA) AND NIGERIA CIVIL SERVICE COMMISSION VS ESSIEN (1985) 3 NWLR PT 12 AT 306 AT 312. Based on the above this application will amount to an over-kill of the substantive issues and is accordingly stuck out as pointless. Now, the next application up for consideration is the Preliminary Objection filed in opposition to the main suit. From the Preliminary Objection dated the 8 th day of October 2012 and filed on the 11 th of October 2012, it is clear that the fourfold objection challenging the jurisdiction of this Court is premised on the following grounds:- 1) The question of locus standi 2) The loss of the right to action by virtue of Section 2 (a) of the Public Officers Protection Act,

27 3) The non-compliance with the conditions precedent inherent in Article 18 of the Amended Constitution of the 1 st defendant dealing with exploring the internal mechanisms for resolution before litigation and 4) The Non-joinder of all necessary parties to this action by the plaintiffs. As regards the 1 st contention of locus standi, learned counsel to the applicant submitted that it is the claim of the plaintiff that determines whether or not a Court has jurisdiction to hear and entertain his case, and cited the cases of GODWIN & 5 ORS VS OKWEY (2010) 7-12 SC AT 1 AT 4 AND PDP VS SYLVIA (2012) 13 NWLR PT 1316 AT 185 AT He set out the plaintiff s claims and argued that Reliefs Nos. 1, 2, 3 and 5 as formulated in the Originating Summons is essentially an intra-political party dispute between four persons in the former Protem National Executive Committee of the 1 st defendant who have not been shown to have instituted this action in a representative capacity. He submitted that this Court has no jurisdiction to dabble or even resolve an intra-party dispute between members of the 1 st defendant involved in any form of dissention whatsoever over choice of candidates for elective offices. He pointed out that the plaintiffs in their affidavit in support of the Originating Summons have admitted that they are members of the 1 st defendant and were former protem national executive officers and had annexed their membership cards of this political party which is a voluntary association with membership open to everybody who accepts the aims, objectives, principles, fundamental values, policies and programmes of the party. They had pledged to abide by the policies, programmes and ideals of the party. Therefore, he argued that their rights have been surrendered and subsumed under the political party and so must 27

28 necessarily comply with the Constitution of the 1 st defendant in the pursuit of their rights and privileges. He set out their various former positions and stated that they took part in running for elective positions at the Primary Election of January 2011 for nominations of candidates to run for the 1 st defendant s ticket at the April 2011 general elections for governorship of Kano State, for North-East Vice Chairman at the National Convention of 4 th to 6 th January 2011, and went on to state their various involvements at the disputed convention in January He also pointed out the fact that the 4 th defendant was placed on suspension in December 2010, which is still existing till today. He concluded this argument by stating that it is not sufficient alone to assume that being members of the 1 st defendant, they can institute an action against the 1 st to 4 th defendants when they have approbated and reprobated over the National Convention in question and failed to fulfil the conditions precedent to the institution of this action. They had also flagrantly violated the resolution of the board of trustees to resign their positions to pave way for an even and fair playing ground at the National Convention. He contended that they have no right to depose to an affidavit in this case, much less, institute an action against the 1 st to 4 th defendants. Further, they stood by and did nothing about their grievance with the 5 th defendant s letter and took part in the Convention and benefitted therefrom and he cited the case of ITEOGU VS LPDC (2009) 12 SC PT 1 AT 1 AT 22 AT PARA Further, he submitted that the plaintiffs have to show what legal right or sufficient interest they have that is above every other member of the 1 st defendant in initiating this suit. He cited the case of ABRAHAM ADESANYA VS PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA, and specifically referred to the 4 th plaintiff 28