CORAM
RAPHAEL CHIKWE AGBO
PARTIES
MR. PATRICK UMOH
APPELLANTS
1. MRS. INIMFON ANIEKAN NELSON
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
RESPONDENTS
AREA(S) OF LAW
LAW OF EVIDENCE, LOCUS STANDI, CIVIL PROCEDURAL LAW, ELECTION, APPEAL, PRACTICE AND PROCEDURE.
SUMMARY OF FACTS
This appeal is against the judgment of the Federal High Court, Uyo Judicial division (trial court). The 1st Respondent who was the Plaintiff at the trial court averred that she is a registered member of the 2nd Respondent (APC) a political party and in the build up to the up-coming 2023 general elections. She was an aspirant in the primary election conducted by the party for the selection of the Ikot Ekpene/Obot Akara/Essien Udim Federal Constituency in Akwa Ibom for member of House of Representatives. The said primary election was conducted and monited by the 3rd Respondent, the 1st Respondent emerged winner against the Appellant, the party presented the Appellant winner instead of the 2nd Respondent. The 2nd Respondent claims to have been unlawfully substituted. Thus, she filed a suit at the trial court, the trial court accordingly entered judgement for the 1st Respondent and ordered INEC to recognize her as the 2nd Respondent’s candidate. Peeved with the decision of the trial Court and has consequently lodged an appeal in this instant court.
HELD
Appeal allowed, judgment of the trial court herby set aside.
ISSUES
Whether a Primary Election conducted by a Party organ or person(s) other than the National Working Committee of a Political Party is valid, merely because the Independent National Electoral Commission (INEC) monitored the said primaries.
Whether the 1st Respondent as Plaintiff at the trial Court who consistently asserted in the affidavit supporting her originating summons that she did not participate in the validly organized House of Representatives Primary Election for Ikot Ekpene/Essien Udim/Obot Akara Federal Constituency in Akwa Ibom State conducted by the 2nd Respondent on Friday, 27th May, 2022 had the locus standi to have instituted Suit NO: FHC/UY/CS/132/2022 culminating in this appeal.
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
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 Working Committee 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.
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
STATUTES REFERRED TO
2. Evidence Act