BOKO V. NUNGWA (2018)

Background

Joseph Hemen Boko commenced an originating summons before the Federal High Court, Makurdi, on 2015-02-10. He claimed that he had won the All Progressives Congress (APC) primary election conducted on 2014-12-02 to select its candidate for the Kwande West State Constituency election in the Benue State House of Assembly. Boko alleged that he obtained the highest number of votes at the primary but that the APC and the Independent National Electoral Commission (INEC) failed to recognise or publish his name as the sponsored candidate.

Hon. Benjamin Nungwa challenged the primary result within the APC, alleging that unlawful counterfoil votes had been used to inflate Boko’s score. The party’s primary election committee accepted the complaint, recalculated the valid votes and declared Nungwa the winner. The APC’s National Working Committee ratified that decision and forwarded Nungwa’s name to INEC. Nungwa subsequently contested the general election held on 2015-04-11, won, and was sworn into office.

At the Federal High Court, Nungwa and the APC filed preliminary objections, including the argument that Boko had not exhausted the party’s internal remedies and therefore lacked standing. The trial court dismissed the objections but ultimately declined jurisdiction on the basis that the dispute concerned the internal affairs of the political party. Boko appealed to the Court of Appeal, while Nungwa and the APC filed a cross-appeal challenging the trial court’s jurisdiction.

The Court of Appeal held that the cross-appeal was filed 62 days out of time and without leave, because it challenged an interlocutory ruling that required a notice of appeal to be filed within 14 days. Nevertheless, it entertained the cross-appeal because it raised jurisdictional questions. It then struck out Boko’s case and dismissed his appeal without hearing the substantive appeal. Boko appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal could entertain a cross-appeal filed out of time and without leave merely because it raised jurisdiction.
2. Whether Article 19 of the APC Constitution, requiring exhaustion of internal remedies, deprived Boko of locus standi or ousted the court’s jurisdiction.
3. Whether the pre-election action became spent after the election and the swearing-in of Nungwa.
4. Whether alleged defects concerning service of the originating summons outside the issuing State invalidated the proceedings.
5. Whether the Court of Appeal was required to determine the substantive appeal after deciding the jurisdictional questions.

Ratio Decidendi

The Supreme Court unanimously held that jurisdiction is fundamental, but an appellate court can exercise it only where a competent appeal has been properly brought before it. A competent notice of appeal is the foundation of an appeal. Consequently, the Court of Appeal, having found that the respondents’ cross-appeal was filed out of time without the necessary leave, had no jurisdiction to hear or rely on it. The fact that the cross-appeal raised jurisdiction did not cure the defective process. The cross-appeal ought to have been struck out.

The Court further held that the ruling of the trial court affirming its jurisdiction was interlocutory because it did not finally determine the rights of the parties. It left the substantive dispute for determination. Accordingly, the applicable time limit for appealing that ruling was 14 days. The notice also ought to have stated the date of the ruling appealed against, since statutory time limits could not properly be calculated without that information.

On the substantive constitutional questions, the Court held that section 87(9) of the Electoral Act 2010 (as amended) expressly permits an aspirant who complains of non-compliance with the Electoral Act or a political party’s guidelines in the selection or nomination of a candidate to seek redress in the Federal High Court, the High Court of a State or the High Court of the Federal Capital Territory. The opening words, “notwithstanding the provisions of this Act or rules of a political party,” prevent a party constitution from defeating that statutory right.

Court Findings

The 1999 Constitution is supreme over the constitution and regulations of a political party. Any party provision purporting to oust a jurisdiction conferred by the Constitution or the Electoral Act is void to the extent of its inconsistency. Article 19 of the APC Constitution could not lawfully prevent an aggrieved aspirant from accessing the courts, particularly where the complaint concerned the legality of the party’s nomination process and fair hearing rights protected by section 36(1) of the Constitution.

The Court also rejected the argument that the proceedings became academic or were extinguished by Nungwa’s election and swearing-in. A pre-election matter instituted before the election remains a live controversy and does not become a post-election dispute merely because the election has occurred. The court in which it was instituted retains jurisdiction to determine it.

The respondents’ argument that Boko failed to exhaust the APC’s internal dispute-resolution mechanisms was raised too late. Under Order 13 rule 6 of the Federal High Court (Civil Procedure) Rules 2009, a condition precedent intended to be contested must be distinctly pleaded. The respondents had not pleaded or properly developed the alleged non-exhaustion at the trial court or the Court of Appeal. It could not fairly be raised for the first time at the Supreme Court without the necessary factual foundation.

Regarding service, the Court explained that the Federal High Court’s procedural rules derive authority from sections 252 and 254 of the Constitution and sections 9 and 44 of the Federal High Court Act. The Sheriffs and Civil Process Act, particularly sections 94 and 96, was not intended to regulate the Federal High Court in the relevant service and execution matters. The Federal High Court Rules 2009 contain their own provisions on service outside jurisdiction, including Orders 6 rules 13–17, 22 and 25. The Court of Appeal had also made findings concerning the alleged non-endorsement of the process which were not properly challenged and had proceeded speculatively in treating the originating summons as fundamentally defective.

Conclusion

The Supreme Court allowed the appeal in part. It set aside the Court of Appeal’s judgment and all orders founded on the incompetent cross-appeal, struck out the cross-appeal, and remitted Boko’s substantive appeal to the Court of Appeal for hearing on the merits by a different panel. The matter was directed to receive accelerated hearing. No order as to costs was made.

Significance

Boko v. Nungwa is significant for Nigerian electoral and appellate procedure. It confirms that political parties cannot contract out of constitutional judicial supervision or prevent aspirants from invoking section 87(9) of the Electoral Act. It also clarifies that pre-election cases survive the conduct of the election, that jurisdiction cannot be used as a device to validate an incompetent notice of appeal, and that an intermediate appellate court should give a decision on the substantive appeal where jurisdiction has been challenged, so that the Supreme Court can effectively review the entire dispute if necessary.