CORAM
AMINA AUDI WAMBAI JUSTICE, COURT OF APPEAL
ABUBAKAR MAHMUD TALBA JUSTICE, COURT OF APPEAL
MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL
PARTIES
1. IFYSCO FURNITURE COMPANY
2. IFEANYI OKAFOR APPELLANTS
APPELLANTS
ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT
RESPONDENTS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
This appeal queries the correctness of the decision (ruling) of the High Court of Lagos State (lower Court). In 1981, the contract for the construction of Agege-
Egan-Ojo Road was awarded to the appellant. The Lagos State Government approved its occupation of the disputed land for its operations. However, the respondents took over possession of the disputed land, without an order of court. They prevented the appellant and its staff from entry into their offices and vandalised the appellant’s equipment and machines on the disputed premises. Sequel to that, the appellant, along with its deceased managing director, beseeched the lower court, via a writ of summons and tabled against the respondents, injunctive relief and general damages over the disputed land. The respondents filed a statement of defence claiming ownership of a large tract of the disputed land, through settlement by their ancestor Okose Ewusi. Consequently, the respondents counter-claimed against persons unknown an prayed the lower court for declaratory and injunctive reliefs in respect of the disputed land.In the course of the proceedings in the lower court, the respondents filed an application which prayed the court to: set aside the service of the writ of summons with its accompanying processes, and to dismiss the suit in its entirety. The lower court heard the application and struck out the appellant’s suit for being incompetent. The lower court proceeded to hear the respondents’ counter-claim, delivered its judgment on the counter-claim and granted it. Later on, the appellant filed two applications, the respondents joined issue with the appellant on the applications by filing the necessary processes. The lower court in its ruling dismissed one application and struck out the other application. The appellant was dissatisfied with the decision (ruling) hence he has launched and appeal to this court.
HELD
Appeal struck out.
ISSUES
Not Available
RATIONES DECIDENDI
APPEAL – ISSUES THAT AFFECT THE COMPETENCE/JURISDICTION SHOULD BE RESOLVED FIRST
In the determination of this appeal, I will first resolve issue two dealing with locus standi of the 1 st Respondent to institute the suit at the trial Court. This is because the issue of the capacity of the 1 st Respondent to sue, locus standi, goes to the competence of the suit and by extension the jurisdiction of the trial court to look into her complaint. Per – Balkisu Bello Aliyu JCA.
LOCUS STANDI
MEANING OF LOCUS STANDI‘Locus standi’ is a Latin word which general meaning is “place of standing” and was defined by Black’s Law Dictionary, Ninth Edition at page 1026 as “the right to bring an action or to be heard in a given forum”. Per – Balkisu Bello Aliyu JCA.
LOCUS STANDI – LOCUS STANDI IN ELECTION MATTERS
In pre-election matters such as the suit that gave rise to this appeal, the principle has been greatly curtailed from the general interpretation given to it in relation to ordinary civil proceedings. That is necessary given the nature of the pre-election matters as suis generis and they are of interest to a vast majority of members of the political parties and even the electorate. Therefore, the Electoral Act and the case law established that the locus standi of a person to sue particularly regarding political parties’ primary elections depends only on if such persons actually participated in those primaries. The caution here is that the right to bring an action or to be heard in a pre-election matter is only for political party aspirants who participated in the primary elections and no one else. Per – Balkisu Bello Aliyu JCA.
ASPIRANT – WHO IS AN ASPIRANT?
See for example the case EZE VS. PDP (supra) paragraph F, where the Apex Court per KEKEREEKUN, JSC held:
Who is an aspirant? An aspirant is a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging…. What is more, the primary election he is complaining about must have been conducted by the National Executive Committee or the National WorkingCommittee of the party. Per – Balkisu Bello Aliyu JCA.
PRIMARY ELECCTION – PREREQUISITE TO QUALIFY AS AN ASPIRANT CHALLENGING A PRIMARY ELECTION
In addition to being an aspirant who participates in the primary election being challenged, the person(s) challenging the primary election being challenged must have been conducted by the National Executive Committee of the political party. This is because as was held by the Supreme Court in EZE VS. PDP (supra),only the National Working Committee (NEC) or National Working Committee (NWC) of political parties have the power and the prerogative to conduct primary elections to select candidates of their choice for election into various elective offices.See UBA VS. MOGHALU (2022) 15 NWLR (PT. 1853) 271, OMAJI VS. DAVID (2019) 17 NWLR (PT. 1702) 438 at 463-464.In the case of MUSA VS. UMAR (2020) 11 NWLR (PT. 1735) 213 at 257 paras E- H, 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. See also the recent unreported decision of the Apex Court in respect of Appeal NO: SC/CV/1476/2022 – ALL PROGRESSIVES CONGRESS VS. UDOM UDO EKPO UDOM ANOR. delivered on the 20 th January 2023, per SAULAWA JSC held at page 20 that:
Contrary to the erroneous finding of the court below, the law is well settled beyond peradventure, that the only primary election recognizable is the one conducted by the National Executive of a political party or a committee appointed by it, and not the primary election conducted by the State Executive of the party. Thus, where a State Executive conducts a primary election, the outcome of such an 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.
PRIMARY ELECTIONS – PRIMARY ELECTIONS TO BE MONITORED BY THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
The principle of law expounded in the case law is captured in 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 duty of INEC (3 rd Respondent) is to monitor only primaries conducted by NEC of the political party to ensure that political parties conduct them in accordance with the provision of the Electoral Act and the Party’s guidelines issued for the conduct of the primaries. Per – Balkisu Bello Aliyu JCA.
BURDEN TO PROVE – THE BURDEN TO PROVE THAT A PRIMARY ELECTION WAS CONDUCTED BY NWC REST ON WHOEVER ALLEGES
Therefore, the Appellant’s learned senior counsel was right to argue that the burden is squarely on the 1st Respondent to establish by preponderance of evidence that the said election of 28 th May, 2022 was conducted by the NWC of the 2 nd Respondent (APC) in accordance with its Constitution, guidelines issued for the conduct of the primaries and in compliance with the Electoral Act. Per – Balkisu Bello Aliyu JCA.
LOCUS STANDI – NON- PARTICIPATION IN A PRIMARY ELECTION AFFECTS THE LOCUS STANDI OF THE PARTY
Therefore, having not participated in the primary election conducted by the 2 nd Respondent on the 27 th May, 2022, the 1 st Respondent lacks the locus standi to challenge the nomination of the Appellant based on the primary election which she clearly denied. Per – Balkisu Bello Aliyu JCA.
CONDUCT OF PRIMARIES BY THE NWC – EFFECT OF AN ELECTION NOT CONDUCTED BY NWC
And the primary election of 28 th May, 2022 that the 1 st Respondent relies on is invalid having not been conducted by the NWC’ appointed committee for the primary election. Per – Balkisu Bello Aliyu JCA.
DOCUMENTARY EVIDENCE- DOCUMENTARY EVIDENCE MUST BE PROPERLY EVALUATED BY A COURT/JUDGE
With due respect, the learned trial Judge failed to properly consider and evaluate the documentary evidence of the Appellant with regards to the eminent and exclusive position of the 2 nd Respondent to conduct primary election and the facts relied upon by the 1 st Respondent that she did not participate in the primary election of 27 th May, 2022 duly conducted by the 2nd Respondent NWC. Issue two is resolved in favour of the Appellant. Per – Balkisu Bello Aliyu JCA.
PRIMARY ELECTIONS – AN INVALID PRIMARY ELECTION CANNOT BECOME VALID SIMPLY BECAUSE INEC MONITORED IT
The learned senior counsel for the Appellant posited submitted under this issue that an invalid primary would not become valid or regular simply because INEC monitored it. That is the correct position of the law. In other words, primary election not conducted by the NWC of a political party does not become valid because its conduct was monitored by INEC. If INEC decides to monitor a party’s primary election not conducted by the NWC of the political party, it monitored nothing. I adopt all I have stated in my resolution of issue two supra to also resolve this issue in favour of the Appellant. Per – Balkisu Bello Aliyu JCA.
CASES CITED
Not Available
STATUTES REFERRED TO
Not Available