HON. FEMI DAVIES V. ANTHONY IDOWU MENDES & ORS. (2006)

Background

Mr. Anthony Idowu Mendes commenced proceedings at the Federal High Court, Abuja, in Suit No. FHC/ABJ/CS/189/2003. He claimed that he had been validly nominated by the Alliance for Democracy (AD) as its candidate for the Ojo Federal Constituency and that his name had already been published by the Independent National Electoral Commission (INEC). He therefore sought declarations and injunctions restraining the defendants from substituting or altering his name except in compliance with sections 23 and 25 of the Electoral Act, 2002. The action was prompted by the party’s decision to substitute Hon. Femi Davies as its candidate.

Davies was joined as a defendant and, together with the other defendants, raised a preliminary objection. They argued that the dispute concerned the internal affairs of a political party and was therefore outside the court’s jurisdiction. They also contended that the action was statute-barred under section 21(9) of the Electoral Act. The Federal High Court overruled the objection and held that it possessed jurisdiction. Davies appealed to the Court of Appeal.

Issues

1. Whether Mendes’s claim invited the court to determine a political question and improperly interfere in the domestic affairs of the Alliance for Democracy.
2. Whether the action was statute-barred under section 21(9) of the Electoral Act, 2002.
3. Whether the Federal High Court could grant the reliefs claimed without effectively sitting as an election petition tribunal, and whether the proceedings had become academic after the 2003 election.
4. Whether Davies’s preliminary objection was incompetent because it was filed before he delivered a statement of defence and therefore amounted to an abolished demurrer.

Ratio Decidendi

The Court of Appeal allowed the appeal and held that the preliminary objection was competent. Jurisdiction is a fundamental and threshold question which may be raised at any stage of proceedings, including for the first time on appeal. It may be raised from the writ of summons or statement of claim, by motion supported by affidavit, orally, or by the court acting suo motu. The court must determine it before taking further substantive steps.

The court distinguished an objection to jurisdiction from a demurrer. A demurrer assumes that the court has jurisdiction but contends that, even if the pleaded facts are accepted, the claimant has no cause of action or locus standi. A jurisdictional objection is more fundamental: it questions the court’s legal power to entertain the subject matter at all. Consequently, a defendant need not file a statement of defence before challenging jurisdiction.

The court further held that sponsorship, nomination and substitution of an electoral candidate are ordinarily matters within the exclusive domestic sphere of the political party. A court cannot nominate a candidate for a political party or compel a party to sponsor a person whom it has not selected. The word “may” in section 23 of the Electoral Act was interpreted as permissive, directory or discretionary rather than mandatory. Because the Act imposed no express sanction for non-compliance with the 30-day period, a substitution made outside that period was not rendered invalid in a manner enforceable by the court in the circumstances of this case.

Court Findings

The Court of Appeal examined the reliefs and pleadings rather than the parties’ characterisation of the dispute. Mendes’s case was founded on his alleged nomination by the Alliance for Democracy and the party’s subsequent substitution of Davies. The court concluded that determining whether Mendes, rather than Davies, was the proper candidate would necessarily require judicial interference in the party’s choice of candidate. That was a political and non-justiciable question.

The court distinguished section 21(8) and (9), which concern challenges to INEC’s decision regarding the qualification or disqualification of a candidate, from section 23, which concerns a political party’s alteration or substitution of its candidate. The limitation period in section 21(9) therefore did not govern the claim. However, because the subject matter was non-justiciable, it could not meaningfully become statute-barred: limitation provisions presuppose an enforceable legal right capable of judicial determination.

The court also considered section 134(1)(d), which permits an election to be questioned where a petitioner or candidate was validly nominated but unlawfully excluded. Mendes could not effectively rely on that route because he was not a candidate at the election and the political party had not nominated him for the contest. The Federal High Court could not grant an injunction that would have the practical effect of nullifying the completed election or replacing the party’s chosen candidate.

Additionally, by the time the matter was being pursued, the 2003 election had already taken place and the next general elections were approaching. The court held that adjudicating a dispute about nomination for a concluded election would be an academic exercise. Courts resolve live controversies and do not spend judicial time determining hypothetical questions or granting ineffective relief.

Conclusion

The appeal was allowed. The decisions of the Federal High Court upholding jurisdiction were set aside, and the reliefs claimed in Suit No. FHC/ABJ/CS/189/2003 were declared non-justiciable. Costs of N5,000 were awarded in favour of Hon. Femi Davies.

Significance

Davies v. Mendes reinforces the judicial reluctance to interfere with the internal electoral decisions of political parties. It clarifies that courts may intervene where a political party seeks to enforce its own submitted list against INEC, where a completed election raises a legally recognised question concerning the party’s sponsored candidate, or where the Electoral Act expressly provides a remedy. Nevertheless, an individual cannot ordinarily use an ordinary civil action to compel a political party to nominate or retain him. The decision also provides an important procedural clarification: a challenge to jurisdiction is not demurrer and may be raised without pleadings. Finally, its interpretation of “may” under section 23 demonstrates that statutory language must be read in context, particularly by considering whether the legislation attaches a sanction to non-compliance.