MEMUNA SULEIMAN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
March 19, 2025HON INIBEHE OKORI V. PEOPLES DEMOCRATIC PARTY (PDP)
March 19, 2025Legalpedia Citation: (2023-02) Legalpedia 67500 (CA)
In the Court of Appeal
Holden at Abuja
Fri Feb 17, 2023
Suit Number: CA/ABJ/CV/06/2023
CORAM
AMINA AUDI WAMBAI
MOHAMMED BABA IDRIS
MUSLIM SULE HASSAN
PARTIES
INCORPORATED TRUSTEES OF RIGHT FOR ALL INTERNATIONAL
APPELLANTS
1. ALL PROGRESSIVES CONGRESS
2. PEOPLES DEMOCRACTIC PARTY
3. BOLA AHMED TINUBU
4. ALHAJI ATIKU ABUBAKAR
5. ATTORNEY GENERAL OF THE FEDERATION
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW, ELECTION PETITION
SUMMARY OF FACTS
The case of the Appellant against the 1st to the 4th Respondents at the trial court by her affidavit evidence sworn is that she is Non-governmental organization that promote human right, accountability, Rule of law, fight against corruption, and seeks judicial interpretation in the public interest.
The Appellant claimed that the convention of the 1st and 2nd Respondent conducted on the 6th and 7th of June, 2022, and the 28th and 29th of May, 2022, respectively was marred by vote buying and selling by delegates with the use of US Dollars as testified by Rotimi Amachi, Dele Mamodu and one Sam Ohuabuwa who spoke to online media and TV stations. That the selection of aspirants by the 1st and 2nd Respondents in the persons of 3rd and 4th Respondent did not take cognizance of the federal character of Nigeria, and the convention of the 1st and 2nd Respondent was not constituted in compliance with the various parties constitution.
The trial court held that the plaintiff (Appellant) lacked the locus standi to institute this case before her having not participated in any of the primary elections referred to and consequently dismissed the case and dissolved the organisation for acting ultra vires..
The Appellant was dissatisfied with the decision hence the instant appeal.
HELD
Appeal Dismissed
ISSUES
Preliminary Objection
Whether having regard to the clear, unambiguous and express provisions, spirit and tenor of Section 285 (10) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended) the entire judgment and order made in the judgment of the lower court are nullity.
RATIONES DECIDENDI
APPEAL – A RESPONDENT IN AN APPEAL SHOULD ANSWER TO THE APPEAL
A respondent in an Appeal is meant to answer the appeal and not to argue on issues not canvassed by the Appellant from the grounds of Appeal. – Per M. S. Hassan, JCA
APPEAL – NOTICE OF APPEAL – WHERE THE PARTIES IN THE SUIT ARE UNILATERALLY ALTERED
The trite position of the law is that a Notice of Appeal is incompetent where the parties in the suit leading to the appeal were unilaterally altered without leave of Court first sought and obtained this is because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action, parties are normally confined to the case as pleaded in the Court of first instance. – Per M. S. Hassan, JCA
APPEAL – A PARTY CANNOT UNILATERALY ALTER NAMES OF PARTIES IN A SUIT AS PLEADED AT THE TRIAL COURT
This Court in CHIEF BEN. I. OBI V. EMEKA ETIABA ESQ (2015) 6 NWLR (Pt.1455) 377 at pages 389-390 paras E-B; 399 paras A-C Held that:
‘’A party cannot unilaterally alter names of parties in a suit as pleaded in the trial court without the input of the court. Such will render the Notice of Appeal incompetent as it amounts to a clear disregard of the provision of Order 6 rule 2 (1), Court of Appeal Rules, 2011 and the Notice of Appeal is liable to being struck out. This is so in that an appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. In the instant case, the names of the 2nd -5th defendants were unilaterally removed by the appellant from the Notice of Appeal. Even where they did not want to be part of the appeal, their names must be included in the process.’’ – Per M. S. Hassan, JCA
APPEAL – CONDUCT OF THE COURT
Notwithstanding the fact that the Notice of Appeal in the instant case have been struck out and this Court being an intermediate appellate court is enjoined to consider the main appeal in the event that the Supreme Court as the apex court, does not agree with the reasoning for upholding a preliminary objection. The aim is to save judicial time and cost to the litigants. – Per M. S. Hassan, JCA
RECORDS – WHERE THE MISSING PART OF THE RECORD IS IMMATERIAL AND CANNOT AFFECT THE DECISION OF THE APPEAL
The rudimentary principle of law is that an appellate Court cannot hear an appeal on incomplete records, as an incomplete record affects the competence of the Court. See EKPEMUPOLO v. EDREMODA (2009) 8 NWLR (Pt. 1142) 166. However an exception where an appeal could be heard on incomplete records where the missing part of the record, in the view or opinion of the Court, is clearly so immaterial that it cannot affect the decision of the appeal one way or the other. See OKOCHI v. ANIMKWOI (2003) 18 NWLR (Pt. 251) 1. – Per M. S. Hassan, JCA
EVIDENCE – WHO QUALIFIES TO COMPLAIN IN PRE-ELECTION MATTERS
For a matter to be qualified as a pre-election matter, it must be one arising from the primaries of a political party wherein only aspirants who contested for tickets or the political party may complaint of the process if aggrieved. For clarity S. 285 (14) (a) (b) and (c) of the Constitution of the Federal Republic of Nigeria (as amended) clearly describes who can qualify to complain in pre-election matters as follows:
a. An aspirant who complains that any of the provisions of the Electoral Act or any of the National Assembly regulating the conduct of primaries of the guidelines of a political party for the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
b. An aspirant challenging the action, decision, or Activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
c. A political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or by a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of votes and other activities of the commission in respect of preparation for an election.
Section 84 (14) of the Electoral Act which empowers an aspirant to complain in pre-election matters provides as follows:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party, may apply to the Federal High Court for redress.”
When these provisions Section 285 of the Constitution, Section 84 of the Electoral Act, and Section 29 (5) of the Electoral Act, 2022 is read together, what qualifies as a pre-election matter and who can sue in pre-election matter is very clear. The only persons who may sue are the aspirants or the political party. – Per M. S. Hassan, JCA
JUDGMENT – WHEN A PLAINTIFF IS NOT A COMPETENT PARTY TO A SUIT
Like I said, the Appellant is not a political party, she is not an aspirant for her case to be classified as a pre-election matter. I therefore hold that the case formulated by the Appellant is not a pre-election matter and the judgment of the trial court was properly delivered and rightly so, dismissing the frivolous and vexatious case of the Appellant. – Per M. S. Hassan, JCA
CASES CITED
STATUTES REFERRED TO
2. Constitution of the All Progressive Congress 2014 (as amended)
3. Constitution of the Peoples Democratic Party 2017 (as amended)
4. Federal High Court Rules
5. Constitution of the Federal Republic of Nigeria 1999 (As Amended)
6. Code of Conduct of Public Officers
7. CBN Act
8. EFCC Act
9. Court Of Appeal Civil Procedure Rules 2021
11. Supreme Court Rules
12. Election Judicial Proceedings Practice Direction 2022
13. CAMA 2020
