Legalpedia Citation: (2023-03) Legalpedia 21302 (SC)

In the Supreme Court of Nigeria

Wed Mar 8, 2023

Suit Number: SC.CV/298/2023

CORAM

John Inyang Okoro JSC

Uwani Musa Abba Aji JSC

Helen Moronkeji Ogunwumiju JSC

Ibrahim Mohammed Musa Saulawa JSC

Tijjani Abubakar JSC

PARTIES

PROFESSOR GREGORY IBEH

APPELLANTS

CHIEF CHIKWENDU UDENSI

2. ALL PROGRESSIVES GRAND ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. REV. AUGUSTINE EHIEMERE
5. SUNDAY ONUKWUBIRI
6. HON. OBINNA ICHITA

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The brief facts giving rise to this appeal are that the 1st Respondent as Plaintiff at the trial Court commenced an action vide Writ of Summons and Statement of Claim. The 1st Respondent contended that the Primary Election Electoral Panel set up by the 2nd Respondent and headed by one Echezona Etiaba, SAN, succumbed to the 4th to 6th Respondents’ intimidation and refused to use the authentic list of Ad hoc delegates which emanated from the Local Government Ward Congresses Returning Officers. However, the 1st Respondent alleged that three members of the 2nd Respondent, purportedly co-opted by the Etiaba led Panel, to assist the panel in the conduct of the primary election, proceeded to conduct the said primary election, using the authentic list of Ad hoc delegates, and he emerged as the winner, and 2nd Respondent’s nominated candidate for the 2023 Abia State Governorship Election. Consequent upon forwarding the Appellant’s name by the 2nd Respondent to the 3rd Respondent, the 1st Respondent commenced the action leading to this appeal. Essentially, the 1st Respondent sought the intervention of the Court to compel the 2nd Respondent to forward the 1st Respondent’s name as the 2nd Respondent’s Candidate for the office of Governor of Abia State in the 2023 General Election scheduled by the 3rd Respondent for Saturday, March 11, 2023.

The trial Court delivered judgment in the suit wherein the lower Court nullified the Appellant’s election as the 2nd Respondent’s nominated candidate and ordered that fresh primary elections be conducted. Dissatisfied with the judgment, the Appellant, 2nd, 4th and 6th Respondents filed an appeal at the lower Court, while the 1st Respondent also cross-appealed against the same judgment.

In a judgment delivered on the 8th day of February, 2023, the lower Court allowed the appeal in part and dismissed the cross-appeal. The lower Court affirmed the nullification of the primary election but set aside the order made by the trial Court that fresh primary elections be conducted, holding that time would not permit the conduct of such fresh primary elections in view of the provisions of Section 29(1) of the Electoral Act, 2022. This aspect of the decision again nettled the Appellant who further appealed to this Court.

HELD

Appeal allowed

ISSUES

Ø Whether the lower Court was not wrong when it failed to properly apply the case of Senator Ugochukwu Uba v. Valentine Ozigbo (2021) LPELR-56072 in the resolution of the issue of Respondents lack of locus standi to institute the Suit, subject/matter of the appeal?

 

RATIONES DECIDENDI

ASPIRANT – THE ASPIRANT WHO CAN CHALLENGE THE OUTCOME OF A PRIMARY ELECTION

our decision in UBA V. OZIGBO & ORS [2022] 10 NWLR (Pt. 1839) 431, (2021) LPELR-56672 (SC), where my law Lord and learned brother OKORO, JSC, settled this issue in the following words:

“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 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 Emenike v PDP & Ors (2012) 12 NWLR (Pt 1315) 556, Alhassan v Ishaku & Ors (2016) LPELR – 40083 (SC), Emeka v Okadigbo (2012) 18 NWLR (Pt. 1316) 553, Shinkafi v Yari (supra), Jev & Anor v Iyortyom & Ors (2014) 14 NWLR (Pt 1428) 575, Emenike v PDP & Ors (2012) 12 NWLR (Pt 1315) 556, Eyibo v Abia & Ors (2012) 16 NWLR (Pt 1325) 51, Odedo v PDP & Ors (2015) LPELR – 24738 (SC), Lado v CPC (2011) 18 NWLR (pt 1279) 6891, PDP v Sylva & Ors (2012) 13 NWLR (pt 1316) 85. Let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra), 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 by mouth but that he took part or participated in the vexed primary election. An aspirant who, though he was cleared to participate in the primary election decides to stage a factional primary election, does so at his peril as he is on a frolic of his own. See Daniel v INEC (2015) 9 NWLR (pt 1463) 152.”

Generally, the nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not ordinarily have jurisdiction to decide who should be sponsored by a political party as a candidate in an election. It is not the business of any Court to select or nominate candidates for any political party for election. Nonetheless, the only instance where the Courts intervene by law to question the decision of a political party regarding the nomination of a candidate, is where there is complaint by an aspirant whose complaint falls within the ambit of Section 84 (14) of the Electoral Act, 2022, the section reads 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 has 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 or the High Court of a State or FCT, for redress.”

It is therefore obvious that the jurisdiction of the Courts to entertain a complaint under this Section is narrow in scope. A complainant must bring himself within the provisions of the law before he becomes entitled to audience. The law requires that he shows that he is an aspirant who participated in the primary elections and his complaint must relate to non-compliance with the provisions of the Electoral Act and the guidelines of the political party, these are the requirements that activate the jurisdiction of the Court to entertain the complaint. See also our decision in PATRICK CHRISTOPHER IWOK V. EKERETE ETIM INYANG & ORS [2022] 16 NWLR (Pt. 1855) 175 at 197, PARAS C – H. Where this Court referred to the provisions of Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on the meaning of pre- election matters and held as follows:

“By virtue of Section 285 (14) of the 1999 Constitution (as amended), pre-election matter means any suit by:

(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of a candidate for an election.

(b) An aspirant challenging the actions, decisions, 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 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 voters and other activities of the Commission in respect of preparation for an election.”

From all I said therefore, there is similarity between the provisions of Section 84(14) of the Electoral Act, 2022 and the provisions of Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and in all, the person complaining must be shown to participate in the primary elections complained of, otherwise the person complaining will lack the requisite locus standi to bring the action.  – Per Tijjani Abubakar, JSC

LOCUS STANDI – WHAT THE COURT CONSIDERS IN THE DETERMINATION OF LOCUS STANDI

This Court has consistently held that in the determination of locus standi, the plaintiff’s Statement of Claim should be the only process that should receive the attention of the Court. It is a settled principle of law that a defendant who challenges in limine the locus standi of the plaintiff is deemed to accept as correct all the averments contained in the plaintiff’s Statement of Claim. In OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 6 SC (Pt. II) 60; (2000) 10 NWLR (PT.675) 315, this Court held that the question whether a plaintiff has locus standi in a suit is determined from the totality of all the averments in his Statement of Claim. Thus, in dealing with the locus standi of a plaintiff, it is his Statement of Claim alone that must be scrutinized with a view to ascertaining whether it has disclosed his interest and how such interest has arisen in the subject-matter of the action before the Court. This Court, per TOBI, JSC (of blessed memory) in DISU & ORS V. AJILOWURA (2006) LPELR-955 (SC), held that the statement of claim is the cynosure of the exercise by the Court in determining whether a party has locus standi to institute a suit.  – Per Tijjani Abubakar, JSC

PRIMARY ELECTIONS – WHO HAS THE AUTHORITY TO CONDUCT PARTY PRIMARY ELECTIONS

The law is already settled on a long line of authorities that it is only the NWC/NEC of a party that is recognised as the proper organ of the party charged with the responsibility of conducting party primaries, and it is only a body so empaneled by the body to discharge that responsibility that can validly act and no other persons. – Per Tijjani Abubakar, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Constitution of All Progressives Grand Alliance
3. All Progressives Grand Alliance Electoral Guidelines for 2022 Primary Election
4. Electoral Act 2022

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