HAMMANJULDE V. MUBARAK & ORS
March 19, 2025ILOUNO V.. STATE
March 19, 2025Legalpedia Citation: (2023-01) Legalpedia 44565 (SC)
In the Supreme Court of Nigeria
Holden at Abuja
Fri Jan 27, 2023
Suit Number: SC.CV/1540/2022
CORAM
KUDIRAT MOTONMORI KEKERE-EKUN
IBRAHIM MOHAMMED MUSA SAULAWA
ADAMU JAURO
TIJJANI ABUBAKAR
EMMANUEL AKOMAYE AGIM
PARTIES
MR. KENNEDY OSOH
APPELLANTS
ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. MR. RAYMOND NWOKOCHA
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, ELECTION PETITION, CONSTITUTIONAL LAW, EVIDENCE,
SUMMARY OF FACTS
The appellant claimed that the special congress for primary election conducted by the 1st Defendant for the State Assembly Constituency 2 outside Ogba/Egbema/Ndoni Constituency 2 (ONELGA Constituency 2) that produced the 3rd Defendant as the winner instead of that of Okwuzi Town, the designated centre or any other centre within Ogba/Egbema/Ndoni State Assembly Constituency 2 was contrary to Section 84 (5) (c) (i) & (ii) of the Electoral Act, 2022 and Article 20.4 (ii) (e) & (iii) of 1st Defendant’s Constitution.
In a considered judgment delivered on 5th October 2022, the plaintiff’s suit was dismissed on the ground that he was not an aspirant in the primary election conducted by the 1st defendant and that the averments in his supporting affidavit amounted to hearsay, as he failed to state the source of his information.
He was aggrieved by the decision and appealed to the lower Court. He was unsuccessful, hence the final appeal to this Court.
HELD
Appeal Dismissed
ISSUES
Whether the lower Court was right when it held that the Appellant lacked the locus standi to challenge the primary election conducted by the 1st respondent on 28th May 2022, at which the 3rd respondent emerged winner?
Whether the Court below was not wrong when it held that paragraph 15 of the Appellant’s Affidavit in support of the Originating Summons which was deemed admitted by non-denial by the Respondents was devoid of probative value?
RATIONES DECIDENDI
POLITICAL PARTY – EXCLUSIVE RIGHTS – NOMINATION OR SPONSORSHIP – CONDUCT OF THE POLITICAL PARTY AND MEANING OF ASPIRANTS
Taking into account the fact that the choice by a political party of its candidate is an internal affair of the party and therefore not justiciable, this Court has interpreted Section 87(9) of the 2010 Act and Section 84(14) of 2022 narrowly.
In P.D.P. vs Sylva (2012) LPELR – 7814(SC) @ 35 – 36 G – D and @ 37 B – C, this Court held:
“The right to nominate or sponsor a candidate by a political party is a domestic affair of the party – A political matter within the sole discretion of the party. A member of the party has no legal right to be nominated/sponsored by his party. A Court thus has no jurisdiction to determine who a political party should sponsor.
Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party. But where the political party conducts its primary and a dissatisfied contestant at the primary, complains about the conduct of the primaries, the Courts have jurisdiction by virtue of the provisions of Section 87(9) of the Electoral Act to examine if the conduct of the primary election was … in accordance with the parties constitution and guidelines. This is because the Courts will never allow a political party to act arbitrarily as it likes. From the above [Section 87(9) of the Electoral Act 2010, as amended] it is clear that an aspirant is a person who contested the primaries. An aspirant is thus a candidate in the primaries. In Daniel vs INEC (2015) 9 NWLR (Pt. 1463) 113 @ 155 D, this Court held, per Fabiyi, JSC:
“Let me make some remarks on the provisions of Section 87(9) of the Electoral Act 2010 (as amended). It is an aggrieved aspirant who physically participated in a primary election conducted by the National Executive Committee of his party that is imbued with the locus standi to raise a finger of complaint. See PDP Vs Sylva & 2 Ors. (2012) 13 NWLR (Pt. 1316) 85; Lado vs CPC (2011) 18 NWLR (Pt. 1279) 689.”
In the case of Uba Vs Ozigbo & Ors. (2021) LPELR – 56672 (SC) @ 29 – 30 C – A, this Court per Okoro, JSC held thus: “…before a candidate for the primaries can invoke Section 87(9) of the Electoral Act, 2010 (as amended) and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form, was screened and cleared to participate in the primaries but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87(9) of the Electoral Act (supra).”
See also: Shinkafi vs Yari (2016) 7 NWLR (Pt. 1511) 340 @ 375 – 376 F – A: 398 – 399 G – A; Eze vs P.D.P. & Ors. (2018) LPELR – 44907 (SC) @ 37 – 39 A – A; Hon. Monday Iyore Osagie & Ors. Vs Egbon & Ors. (unreported) in SC/CV/980/2022 delivered on 30th September 2022 and Amb. M.J. Waziri Vs PDP & Ors (unreported) in SC/CV/1280/2022 delivered on 25th November 2022. The law espoused in all these authorities is that a person challenging the primary election of his party to any elective position must have participated in the vexed primary. The position has remained the same under the Electoral Act, 2022. – Per K. M. O. Kekere-Ekun, JSC.
LITIGATION – CONDUCT OF PARTIES
As rightly submitted by the respective counsel for the respondents, a party must always be consistent in the presentation of his case right from the trial Court up to this Court. He cannot approbate and reprobate. See:Jegede & Anor. Vs INEC & Ors. (2021) LPELR – 55481 (SC) @ 30 D – E; Asaboro Vs Pan Ocean Oil Corporation Nig Ltd. & Anor. (2017) 17 NWLR (Pt.1563) 42; (2017) LPELR- 41558 (SC) @ 11 A – C; Suberu Vs The State (2010) LPELR – 3120 (SC) @ 30 C – E; Agi vs P.D.P & Ors. (2016) LPELR – 42578 (SC) @ 41 D- E. – Per K. M. O. Kekere-Ekun, JSC.
APPEAL – WHEN SEEKING DECLARATORY RELIEFS
The appellant, seeking declaratory reliefs, must succeed on the strength of his own case and not on the weakness, if any, of the defendant’s case unless the defense supports his case.
See: Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556; Dumez Nig Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt.1119) 361 @ 373-374; Chief Cyril Uzor Amobi (Ugonna) Vs Ogidi Union Nigeria (O.U.N) & Ors (2021) LPELR – 57337 (SC) @ 25-28 A – C.
Per K. M. O. Kekere-Ekun, JSC.
BURDEN OF PROOF – WHO IT LIES ON
By Section 132 of the Evidence Act, the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.
By Section 133(1) of the Act, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumptions that may arise on the pleadings.
Per K. M. O. Kekere-Ekun, JSC.
ASPIRANT – MEANING – CONDUCT OF THE COURT
In Ardo Vs Nyako (supra), a similar plea was made to the Court. At pages 49-50 A – F, His Lordship Onnoghen, JSC (as he then was) held as follows:
“It is therefore clear and I hold that the definition of the word ‘aspirant’ as rendered in Section 156 of the Electoral Act, 2010, as amended, is very wide and general in nature and does not apply to the facts of this case because the application would defeat the intention of the lawmakers in limiting the scope of the jurisdiction of the Court in matters of nomination of candidates by political parties for elections. It is very important for us to always keep in mind the fact that the Court has no business dealing with political questions, which is exclusively reserved for the politicians and their political party machineries. The Court always deals within its jurisdiction as expressly defined, either by the Constitution or Statute. An interpretation of a section of a statute which has the effect of conferring jurisdiction on a Court beyond what is expressly conferred by either the Constitution or statute is to be avoided like the plague, particularly in political matters. From the above exposition, it is clear that the purported invitation by learned senior counsel for the appellant for the Court to adopt the definition of the word ‘aspirant’ as contained in Section 156 of the Electoral Act, 2010, as amended, over and above the context in which the word is used in Section 87(9) of the said Act and thereby overrule/depart from the earlier decisions of this Court on the matter is grossly misconceived and consequently declined.”
Per K. M. O. Kekere-Ekun, JSC.
ASPIRANT – MEANING – RIGHT OF ACTION
Section 84(14) of the Electoral Act, 2022 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 for election, may apply to the Federal High Court for redress.” The subsection grants a right of action to an aggrieved aspirant who complains that any provisions of the Electoral Act and guidelines of his political party were not complied with in the selection or nomination of the candidate of the party. The operative word therein and which has evoked a lot of controversy is “aspirant”.
Section 152 of the Electoral Act, 2022 defines an aspirant as “a person who aspires or seeks or strives to contest an election to a political office”. This definition is in pari materia with the definition of the same word under Section 156 of the now repealed Electoral Act, 2010 (as amended). This Court has consistently held that an aspirant is a person who actually participated in the primary election of his political party. See ABUBAKAR V. TANKO (2019) 3 NWLR (PT. 1658) 1; EZE V. P.D.P. (2019) 1 NWLR (PT. 1652) 1; NDUUL V. WAYO & ORS (2018) LPELR-45151 (SC); ARDO V. NYAKO (2014) 10 NWLR (PT. 1416) 591; PDP & ANOR V. SYLVA & ORS (2012) LPELR-7814 (SC). It therefore means that for a person to have locus standi to sue by taking benefit of Section 84(14) of the Electoral Act, he must have participated in the primary election of the political party.
Per Adamu Jauro, JSC
INCONCLUSIVE ELECTION – IT IS NO ELECTION
…the law is that an inconclusive election is no election at all. – Per Adamu Jauro, JSC
CASES CITED
STATUTES REFERRED TO
All Progressive Congress Constitution
All Progressive Congress Guidelines
