ALL PROGRESSIVES CONGRESS V. MRS. INIMFON ANIEKAN NELSON & ORS

CORAM

PARTIES

ALL PROGRESSIVES CONGRESS

APPELLANTS

1. MRS. INIMFON ANIEKAN NELSON

2. MR. PATRICK UMOH

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEALS, PROCEDURAL LAW, DOCTRINE OF LOCUS STANDI, JURISDICTION, LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, PRACTICE AND PROCEDURE.

SUMMARY OF FACTS

This appeal is against the ruling of the Federal High Court, sitting at Uyo, Akwa Ibom State (trial Court) in respect of preliminary objections raised by the Appellant herein and 2nd Respondent challenging the jurisdiction of the trial court to determine the suit. The trial court dismissed the preliminary objections of the Appellant and the 2nd for lacking merit and assumed jurisdiction on the 1st Respondent’s suit. The Appellant was peeved with the ruling and has appealed against it to this court.

HELD

Appeal allowed. Ruling of the trial Federal High court, Uyo Judicial Division is hereby set aside.

ISSUES

1. Whether the court was clothed with the Jurisdiction to entertain Suit No: FHC/UY/CS/132/2022 filed by the 1st Respondent on 29/6/22 to challenge the nomination of the 2nd Respondent by the Appellant on the 27/5/22.

2. Whether the plaintiff had the locus standi to institute the action?

RATIONES DECIDENDI

NOTICE OF APPEAL – PROPER SERVICE OF NOTICE OF APPEAL

The notice of this appeal was served on the 1st Respondent through her counsel, and it has in fact been brought to her knowledge having filed responses to the appeal. She has also filed her brief of argument in response to the Appellant’s brief which she also complained was not served personally on her. I agree with the submissions of the Appellant to the effect that having not denied that the addresses of her lawyers through whom the Notice of Appeal came to her knowledge and attention, her objection is untenable. The complaint comes within the purview of the provisor in Rule 1(a) of Order 2, and in the circumstance, I am satisfied that the Notice of appeal and the Appellant’s brief have All been brought to the attention of the 1st Respondent. She has been properly served and I resolve her issue two against her in favour of the Appellant. Per BALKISU BELLO ALIYU JCA.

JURISDICTION – CAN A COURT ASSUME JURISDICTION ON A PERSON NOT PROPERLY SERVED

So also, the issue of service of an originating process is fundamental to the court’s jurisdiction to determine the case because a Court cannot assume jurisdiction on a party who has not been properly notified of the appeal against him or her. Per BALKISU BELLO ALIYU JCA.

JURISDICTION – EFFECT OF ABUSE OF COURT PROCESS ON A PROCEEDING

In the said new issues 1 and 2, the 1st Respondent raised the question of abuse of Court’s process, personal service of notice of appeal and the Appellant’s brief on her, and same must be resolved first because the issue of abuse of Court ‘s process has the potential to terminate the proceedings. See IMUSE & ANOR VS. OJEZUA & ORS (2020) LPELR – 49683 (CA) and SALEH & ORS VS MATAWALE & ORS. (2022) LPELR- 58714 (CA).

ABUSE OF COURT PROCESS – DOES FILING SEPARATE APPEALS AMOUNT TO ABUSE OF COURT PROCESS

The two appeals are not the same, though they are related to the same suit and subject matter. Eventhough it is desirable and will save precious time in litigation to appeal against both interlocutory and final decisions by the same notice of appeal, and in this case, it would have been more convenient to do so, but it does not amount to an abuse of court process to file separate appeals. Therefore, it is my view that there is no abuse of court’s process in the filing of the two appeals for the reasons stated. The court has jurisdiction to determine both appeals against interlocutory ruling and final judgment in the separate appeals filed. I resolve the 1st Respondent’s issue in favour of the Appellant. Per BALKISU BELLO ALIYU JCA.

EVIDENCE – EVIDENCE MUST BE PROPERLY EVALUATED BY THE COURT

The learned trial Judge did not properly evaluate the evidence which no doubt preponderates on the side of the Appellant in this case when he held that:

The Plaintiff’s can premise on Section 84 (1) of the Electoral Act, 2022 which provides that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.” The operative word in Section 84 (1) of the Electoral Act is “shall” and when the word shall is used in statutes, it connotes a command and that which must be given a compulsory meaning….

Section 29(1) of the Electoral Act, 2022 requires a political party to submit to the commission the list of candidates the party proposes to sponsor at the elections who must have emerged from valid primary conducted by the political party. Section 84 (1) of the Electoral Act, 2022makes it mandatory that INEC monitor party Primaries election, and any primary election not monitored by INEC is invalid…..

PRIMARY ELECTION – PRIMARY ELECTIONS ARE THE EXCLUSIVE PRESERVE OF POLITICAL PARTIES

Both parties have placed heavy reliance on the provisions of Section 84 of the Electoral Act, 2022 which provides that:

A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.

So, it is the political parties which have the exclusive prerogative to conduct primary elections to select candidates of their choice for elections into various elective positions. In the case of MUSA VS. UMAR (2020) 11 NWLR (PT. 1735) 213 at 257 paras E-H, where the Supreme Court per ARIWOOLA, JSC (as he then was, now CJN) held that:

Generally, before the conduct of General Elections, parties conduct primary elections for the purpose of nominating their candidate for each of the specific elective positions in compliance with the Electoral Act and the guidelines and Constitution of the Party. Ordinarily, persons or bodies usually involved in the conduct of primary elections are candidates who are contesting, accredited staff of the political party and the accredited staff of the Electoral Commission to supervise and oversee the conduct of the primary elections. Per – BALKISU BELLO ALIYU JCA.

CONDUCT OF PARTIES PRIMARY ELECTION – POWER TO CONDUCT PRIMARY ELECTION

It is also settled law as submitted by the Appellant that only the National Executive Committee (NEC) or the National Working Committee of a political party or its duly appointed committee has the power to conduct primary election to nominate candidates among the aspirants for elective positions. See MOHAMMED VS. PDP (2012) LPERL – 7802 (SC), EZE VS. PDP & ORS. (2019) 1 NWLR (PT. 1651) 1, EGBO VS ANAUCHE (supra) among several others. In fact recently, the Supreme Court re-iterated the principle of law in unreported appeal NO: SC/CV1476/2022 – ALL PROGRESSIVES CONGRESS (APC) VS. UDOM UDO EKPO & ANOR delivered on the 20th January, 2023 per SAULAWA JSC held that:

Contrary to the erroneous findings of the court below, the

law is well settled beyond peradventure, that the only

primary election duly recognizable is the one conducted

by the National Executive of a Political Party or a committee

appointed by it, and not the primary election held or

conducted by the State Executive of the party. Thus, where

a State Executive conducts a primary election, the outcome

of such election ought to be deemed illegal, invalid and a nullity.

See EGBO VS. ANAUCHE (2020) 4 NWLR (PT. 1713) 82 @ 97-98

Paragraphs H – A. Per BALKISU BELLO ALIYU JCA.

EVIDENCE – BURDEN TO ESTABLISH BY PREPONDERENCE OF EVIDENCE

We observe that the 1st Respondent ‘s averments in response to the Appellant’s denial that the persons who conducted that primary of 28/5/2022 are not appointed by its NWC. Her answer in paragraph 18(1) stated that “the primaries were conducted by the National Headquarters of All Progressive Congress and monitored by the 3rd Defendant” did not answer to the specifics averments of the Appellants in their counter affidavit, particularly regarding the guidelines for the primary election, the composition of the committee by its NWC and the report of that committee, the acceptance of the 2nd Respondent as its candidate in its general meeting, etc which were all amply supported by documents. As Stated earlier, the 1st Respondent must establish on preponderance of evidence that the primary election of 28/5/2022 she claimed was actually conducted by the NWC or NEC of the Appellant, before its monitoring of it by INEC can have any valid effect. The 1st Respondent did not do that having only relied on exhibit ‘C’, the report of the INEC monitoring as conferring validity on the election. There was no evidence of any probative value to support that stand of the 1st Respondent. Per BALKISU BELLO ALIYU JCA.

PRIMARY ELECTION – VALID EFFECT OF INEC MONITORING THE CONDUCT OF PRIMARY ELECTION

INEC’S duty was to monitor and not conduct primaries for the parties. It follows that for the monitoring of the primary election by INEC to have valid effect, that primary election must be conducted by the NWC or NEC of the party which is not the case in respect of the 28th May, 2022 primary election that the 1st Respondent relied on. Since she failed to prove that the primary election was conducted by the Appellant’s NEC, the learned trial Judge was clearly in error to hold otherwise. Per BALKISU BELLO ALIYU JCA.

ELECTORAL ACT – THE INTENDMENT OF SECTION 84(1) OF THE ELECTORAL ACT

The above finding constitutes a very narrow and restrictive interpretation of Section 84 (1) of the Electoral Act. His Lordship only considered the monitoring of INEC of a primary election as the validity factor. This is not the intendment of that section because it commenced with stating that it is the political parties that shall conduct their own primaries. INEC’s duty was to monitor and not conduct primaries for the parties. It follows that for the monitoring of the primary election by INEC to have any valid effect, that primary election must be conducted by the NWC or NEC of the party…… Per BALKISU BELLO ALIYU JCA.