Legalpedia Citation: (2023-05) Legalpedia 71343 (SC)

In the Supreme Court of Nigeria

Fri May 26, 2023

Suit Number: SC.CV/499/2023

CORAM

John Inyang Okoro JSC

Amina Adamu Augie JSC

Helen Moronkeji Ogunwumiju JSC

Adamu Jauro JSC

Emmanuel Akomaye Agim JSC

PARTIES

MICHAEL CHINEDU OLI

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. LABOUR PARTY
3. OSITA KINGSLEY OZALAGABA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant herein approached the Federal High Court, Awka Division vide an Originating Summons seeking the nullification of the primary election of the 2nd Respondent (Labour Party) conducted on the 5th of June, 2022 in which the 3rd Respondent emerged as the candidate for the Anaocha II Constituency of Anambra State, as well as a declaration that Appellant was the rightful candidate of the 2nd Respondent having been elected unopposed at an earlier primary election held on the 26th of May, 2022.

The trial Court nullified the primary election of the 2nd Respondent (Labour Party) conducted on the 5th of June, 2022 in which the 3rd Respondent emerged as the 2nd Respondent’s candidate for the Anaocha II Constituency of Anambra State.

On appeal however, the Court of Appeal Awka Division set aside the judgment and orders of the Federal High Court, Awka.

Dissatisfied with the decision of the Court below, the Appellant herein filed the instant appeal.

HELD

Appeal dismissed

ISSUES

1. This issue has two legs. The first one is the question of the locus standi of the Appellant to challenge the primary election of 5/6/2022 which he did not participate in, and the second is whether the suit is not statute-barred?

RATIONES DECIDENDI

JURISDICTION – HOW TO DETERMINE WHETHER A COURT HAS JURISDICTION TO ENTERTAIN AND DETERMINE CASE

It is trite that to ascertain whether a Court has jurisdiction to entertain and determine a case, a Court is guided by the claim in the originating summons, the questions posed for determination, affidavit in support and the reliefs sought. See ISAH v. INEC (2016) 18 NWLR Pt. 1544 Pg. 235-236 Paras D-A. – Per H. M. Ogunwumiju, JSC

ASPIRANT – WHERE AN ASPIRANT DID NOT PARTICIPATE IN THE PRIMARY ELECTION OF HIS PARTY

My Lords, we are aware of the plethora or avalanche of authorities by this Court to the effect that an aspirant who did not participate in the primary election of his political party does not have the locus standi to challenge the said primary.  – Per H. M. Ogunwumiju, JSC

ASPIRANT – CONDITIONS FOR AN INDIVIDUAL TO QUALIFY AS AN ASPIRANT AND FOR A MATTER TO QUALIFY AS A PRE-ELECTION MATTER

My Lords the point must be emphasized that in order to be imbued with the locus standi to question a primary election, an individual must categorically state that he physically participated in the primary election conducted by the relevant arm of the political party so authorized to conduct primary elections. It is not enough to merely allege that he bought nomination forms and was screened and cleared. See NDUKWE v. AYU (2023) 5 NWLR Pt. 1877 Pg. 309 at 347 where my Lord Jauro JSC restated this principle thus:

“For an individual to qualify as an aspirant and for a matter to be classified as pre-election, there must have been a primary election conducted by the National Executive Committee or National Working Committee of the party and the individual must have participated in the primary election”

See also UBA v. OZIGBO (2022) 10 NWLR Pt. 1839 Pg. 431

At the risk of repetition, the law is trite and has been settled in plethora of recent decisions of this Court that for an individual to qualify as an aspirant and for a matter to be classified as a pre-election matter, there must have been a primary election conducted by the National Executive Committee or National Working Committee of the party and the individual must have participated in the primary election. This principle has also been given statutory recognition in Section 29(5) and 84(14) of the Electoral Act 2022, which very explicitly requires the complainant in a pre-election matter to have actually participated in the election in order to have locus standi to institute the action. See also ABUBAKAR v. TANKO (Supra), PDP v. SYLVA (2012) 13 NWLR Pt. 1316 Pg. 85, LADO v. CPC (2011) 18 NWLR Pt. 1279 Pg. 689, SHINKAFI v. YARI (2016) 7 NWLR Pt. 1511 Pg. 340 – Per H. M. Ogunwumiju, JSC

ASPIRANT – MEANING OF ASPIRANT

The case law as it stands conceives of no such distinction in aid of the argument that the word “participation” in Section 29(5) removes the need for participation in Section 84(14) of the Electoral Act as the latter does not contain same words. It is a distinction without a difference. The definition of who an aspirant is has been settled beyond peradventure and the attempts by the Appellant to broaden the definition is a misconceived exercise. In UBA v. OZIGBO (Supra) at pages 459-460 Paras. G-A, this Court held thus:

“For a candidate to come within the narrow compass of Section 87 of the Electoral Act, the aspirant must show to the Court that the National Executive Committee of the political party conducted the primary election he is challenging and that he was an aspirant not only by mouth but that he took part or participated in the vexed primary election.” – Per H. M. Ogunwumiju, JSC

SUPREME COURT – WHERE THE SUPREME COURT MAY DEPART FROM HER PREVIOUS DECISIONS

No doubt as stated in ABDULKARIM v. INCAR NIGERIA LTD (1992) 7 SCNJ P. 366, although this Court will respect its previous decisions as a Court of last resort which is bound by its precedents, the Court will not hesitate to overrule any decision of its own which was reached on wrong principles since that is the only way to keep the streams of justice pure. Thus, where it is shown or demonstrated that the earlier decision is either erroneous in law, or given per incuriam or that it has become an instrument of injustice, the Supreme Court may depart from previous decisions in subsequent cases. See VEEPEE INDUSTRIES LTD v. COCOA INDUSTRIES LTD. (2008) All FWLR Pt. 425 Pg. 1667, BAKARE v. NRC (2007) All FWLR Pt. 391 Pg. 1663 – Per H. M. Ogunwumiju, JSC

SUPREME COURT – UNDERLYING CONSIDERATIONS OF THE SUPREME COURT FOR DEPARTING FROM HER EARLIER DECISIONS

In NDIFON v. C.O.P (2022) 18 NWLR Pt. 1862 Pg. 421 at Pg. 449 Paras B-G, this Court held that

“The Supreme Court has ample jurisdiction and power to depart from or overrule its previous decision. The underlining considerations for departing from a previous decision by the Supreme Court are, inter alia, that the decision is impeding the proper development of the law or has led to results which are unjust or undesirable or which are contrary to public policy. The Supreme Court may also depart from its previous decision if such previous decision is inconsistent with the constitution or is erroneous on point of law or that it was given per incuriam or that it is occasioning miscarriage of justice or perpetuating injustice. Mistake of Counsel is not one of the instances or grounds whereby the Supreme Court can be called upon or persuaded to depart from its previous decision”. – Per H. M. Ogunwumiju, JSC

PRIMARY ELECTION – WHERE A PARTY DECIDES TO CONDUCT A PRIMARY ELECTION – THE PERSON WITH THE LOCUS STANDI TO CONTEST THE OUTCOME OF A PRIMARY ELECTION

This Court has made the position abundantly clear that it is not within the jurisdiction of the Court to dictate or determine who a political party should sponsor for an election as the issue of nomination and sponsorship of candidates are matters within the domestic affairs of the party. Howbeit, where a political party decides to conduct a primary election for the purpose of nominating a candidate, it must conduct the exercise in compliance with the prescriptions of the law. See Daniel vs. INEC (2015) 9 NWLR (Pt.1463)113; Osoh vs. APC & Ors, (2023) LPELR-59728 (SC); Uba vs. Ozigbo & Ors. (2021) LPELR – 56672.

Flowing from the above, under Section 84(14) of the Electoral Act, 2022, an aspirant aggrieved with the conduct of a primary election would be within his right to approach the Federal High Court for redress.

The point must be emphasized that it is only a candidate who actually participated in the entire process of the primary election that would be imbued with locus standi to complain about the election. That is to say, he must have been screened and cleared by his party and actually participated in the primaries, otherwise he would lack the locus to invoke the right enshrined in Section 84(14) of the Act. See Uba Vs. Ozigbo (supra), PDP Vs. Sylva & 2 Ors. (2012)13 NWLR (Pt.1316)85; Emenike vs. PDP & Ors. (2012)12 NWLR (Pt.1315)556. – Per J. I. Okoro, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act 2022

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