JOSEPH NWOBASI V ANAYO EDWIN & ORS
March 19, 2025ALL PROGRESSIVES CONGRESS V. MRS. INIMFON ANIEKAN NELSON & ORS
March 19, 2025Legalpedia Citation: (2023-03) Legalpedia 31010 (SC)
In the Supreme Court of Nigeria
Holden at Abuja
Tue Feb 7, 2023
Suit Number: SC.CV/1619/2022
CORAM
CHIMA CENTUS NWEZE
AMINA ADAMU AUGIE
MOHAMMED LAWAL GARBA
HELEN MORONKEJI OGUNWUMIJU
EMMANUEL AKOMAYE AGIM
PARTIES
1. SOCIAL DEMOCRATIC PARTY (SDP)
2. EKIEBOYE MONOVIE FIGILO (Candidate For The Yenagoa Constituency 1 House Of Assembly Of SDP)
APPELLANTS
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PEOPLES’ DEMOCRATIC PARTY (PDP)
3. AYIBANENGIYEFA AGBA (Candidate For The Yenagoa Constituency 1 House Of Assembly Of PDP)
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, ELECTION PETITION, CONSTITUTIONAL LAW, EVIDENCE
SUMMARY OF FACTS
The Appellants had approached the Federal High Court querying the decision of the 1st Defendant to accept the nomination and subsequent publication of the name of the 3rd Defendant to contest the Yenagoa Constituency 1 Bayelsa State House of Assembly Election under the platform of the 2nd Defendant despite the false statements/declarations made by the 3rd Defendant.
The trial Court, in a Ruling delivered on the 11th October, 2022, found that the suit was statute barred pursuant to the provisions of Section 285 (9) of the Constitution since it was filed outside the fourteen (14) days after the accrual of the cause of action on the 13th July, 2022. The suit was struck out on ground of lack of jurisdiction on the part of that Court since the suit was statute barred.
In the Appellants’ appeal to the Court of Appeal, Port Harcourt division, the Court found that from the evidence in support of suit and the motion for amendment, the suit was not statute barred, but that the Appellants not being “an aspirant” as provided in Section 29 (5) of the Electoral Act, 2022, lack the locus standi to institute the action and so dismissed the appeal before it in the judgment delivered on the 7th December, 2022.
Dissatisfied with the decision of the Court below that they lack the locus to institute the action, the Appellants brought this appeal vide the Notice of Appeal filed on the 13th December, 2022.
HELD
Appeal Dismissed
ISSUES
1. Preliminary Objection
2. Whether the Appellants possess the requisite locus standi or legal competence to sue the Respondents or file the action before the trial Court.
RATIONES DECIDENDI
APPEAL – FAILURE TO FILE CROSS APPEAL OR RESPONDENT’S APPEAL
The law is now elementary in the appellate Courts that a Respondent who did not file a cross-appeal or at least a Respondent’s notice in an appeal cannot raise a valid issue outside the grounds contained in the Appellant’s Notice of Appeal. See Nzekwu v. Nzekwu (1989) 2 NWLR (pt.104) 373 (SC), Kuusu v. Udom (1990) 1 NWLR (pt. 127) 421 (SC), and Eke v. Ogbonda (2006) 11 – 12 SC, 31, (2006) 18 NWLR (pt. 1012) 506.
Per M. L. Garba, JSC.
APPEAL – LEAVE OF COURT TO RAISE FRESH ISSUES
Similarly, the law is firmly settled that, save for the real issue of jurisdiction, no party in an appeal is permitted or allowed to raise a fresh issue in the appeal without the prior leave of the appellate Court. Where raised without such leave, the issue is incompetent. See Agbetoba v. L.S.E.C. (1991) 4 NWLR (pt.188) 664 (SC), Kwajaff v. Bank of the North (2004) 4 SC (pt. 1) 103, Oseni v. Bajulu (2009) 12 MJSC (pt. 30), Shekse v. Plankshak (2008) 10 MJSC 90, Ohochukwu v. A. G., Rivers State (2012) 2 MJSC (pt. 11) 65, Madumere v. Okafor (1996) 4 SCNJ 73, and Okpala v. Ibeme (1989) 2 NWLR (pt. 102) 208.
Per M. L. Garba, JSC
LOCUS STANDI – AFFECTS JURISDICTION
…the issue or question of the locus standi of a plaintiff or claimant to institute or commence a legal action before a Court of law is one which goes to and is intrinsically connected to the jurisdiction of the Court to adjudicate over an action in which it is raised or challenged. See Ajao v. Sonola (1973) 5 SC, 119, where this Court stated that: “It is not in doubt that locus standi affects the jurisdiction of the Court before which an action is brought, and if there is no locus standi to file the action in the first place, the Court cannot properly found jurisdiction to entertain the matter.” See also Quo Vadis Hotels Ltd. v. Comm. of Lands (1973) 6 SC, 50 (1973) All NLR, 568, CBN v. Kotoye (1994) 3 NWLR (pt. 330) 66 at 73, Mozie v. Mbamalu (2006) 15 NWLR (pt. 1003) 466, Basinco Motors Ltd. v. Woermann Line (2009) 13 NWLR (pt. 1157) 149, (2009) LPELR -756 (SC).
Per M. L. Garba, JSC
JURISDICTION – COMPETENT PLAINTIFF AND DEFENDANT
The law is that for an action to be properly constituted and competent in law so as to vest jurisdiction in a Court, there must be a competent plaintiff/claimant and at least a competent defendant. See Ataguba & Co. Ltd. v. Gura Nig. Ltd (2005) 2 SCNJ, 139, (2005) All FWLR (pt. 265) 1219 (SC). – Per M. L. Garba, JSC
PRE-ELECTION MATTER – DEFINITION, DESCRIPTION AND GUIDELINES
Undoubtedly, the provisions of Section 285 (14) only provide definition of what constitutes a “pre-election matter” for the purpose of the entire provisions of Section 285, generally, but specifically for the purpose of Sub-sections (9) – (12) which introduced a pre-election matter and time limits within which it shall be brought or initiated before a Court, when it shall be determined by a trial Court and when the appeal arising therefrom shall be disposed of. Section 285 (14) only sets out the nature of the actions that are defined and classified as “pre-election matter” for the purposes of the provisions of Subsections (9), (10), (11), and (12) wherein time limits are prescribed and stipulated specifically for pre-election matters filed in Court. There is nothing in the provisions of Section 285 (14) of the Constitution that deals with or can reasonably be said to confer or vest any legal right on any person/s to institute an action as a pre-election matter in Court of law.
In other words, the provision of Section 285 (14) does not provide for nor create or confer a legal right on any person to be clothed with the locus standi or competence to institute a pre-election matter in a Court of law.
Per M. L. Garba, JSC
LOCUS STANDI/LEGAL COMPETENCE – FOCUSES ON THE PARTY SEEKING TO GET HIS COMPLAINTS BEFORE A COURT
It must be remembered that the issue of legal competence or locus standi to institute an action in Court focuses on the party seeking to get his complaints before a Court and not on the issues he wants to agitate and have adjudicated by the Court. See Thomas v. Olufosoye (1985) 1 NWLR (pt.78) 669, Adesanya v. President of FRN (supra), A. G. Adamawa v. A. G. Federation (2005) 18 NWLR (pt. 958) 581, Oluyemi v. Asaolu (2008) LPELR – 4772.
In this regard, all that the provisions of Section 285 (14) do is to spell out and set out issues that can be ventilated in a pre-election matter by the party with the requisite legal competence or locus standi to do so in an action before a Court of law, as distinct from the legal competence, capacity, or locus standi of such a party to initiate the action for the issues to be ventilated before and adjudicated by the Court. For an aspirant or party to come under, employ, and be covered by the provisions of Section 285 (14) for the purpose of a pre-election matter, he/it must, as a condition precedent, have the competence or locus standi, first, to initiate or commence the pre-election matter in question, as defined therein. The words “any suit” used in the provisions mean a competent pre-election matter, properly constituted, filed before a Court by an aspirant or a political party. Since the section merely defines what a pre-election matter is, it cannot be expanded by a party to include the right to the legal capacity, competence, or locus standi of the party to initiate such a matter before the Court. See Tukur v. Government Gongola State (1989) 1, SCNJ, 1, Kotoye v. Saraki (1994) 7 – 8 SCNJ (pt. Ill) 524, Okotie-Eboh v. Manager (2004) 12 SCNJ, 139, Gafar v. Gov. Kwara State (2007) 1- 2 SC, 189, Amobi v. Nzegwu (2013) LPELR-21663 (SC).
Per M. L. Garba, JSC
DEFINE AND DEFINTION – MEANING – PRE-ELECTION MATTERS DEFINED IN LIGHT OF SECTION 284 (14) OF THE CRFN
The verb “define” is said, in the Burton’s Legal Thesaurus, 3rd Edition, “The Lawyer’s Roget’s”, at page 150, to mean; inter alia: “Characterize, characterized precisely, circumscribe, clarify, delineate, denominate, depict the essential qualities of, describe the properties of, determine with precision, explain, the nature of, fix the meaning, identify, interpret, ‘make clear, throw light upon, etc.”
On its part, the noun “definition” is said to mean, inter alia, at page 151 of the same book: “Clarification, description, exact meaning, explanation, expressed meaning, interpretation, identification, etc.”
In the premises of these definitions, it can easily be discerned that the provision of Section 285 (14) simply describes, interprets, identifies, explains the nature of, clarifies, and sheds light on what constitutes a pre-election matter for the purposes of the provisions of Sub-Sections (9), (10), (11), and (12) of Section 285, wherein a pre-election matter was specifically mentioned and named and time limits in respect thereof provided. It does no more than provide the definition of what such a pre-election matter is.
Per M. L. Garba, JSC
PROCEDURE – PROVISIONS OF STATUTES – LIMITATION ON EXPANSION BY PARTIES AND COURT
The law remains that neither a party nor a Court can properly expand, by way of addition, to the provisions of a statute, words that are not provided therein for the purpose of achieving a particular objective.
Per M. L. Garba, JSC
ELECTIONS – FORGED CERTIFICATES – SHALL NOT BE QUALIFIED FOR ELECTION
In simple terms, the provisions say that a person who presented a forged certificate to INEC shall not be qualified for election to a House of Assembly, which, like elections to the Federal Legislature, are conducted by INEC. INEC is established by Section 153 (1) (f) of the Constitution, whose powers are as contained in Part 1 of the Third Schedule to the Constitution by virtue of Sub-section (2) of Section 153. By the provision of Paragraph 15 (a) of Part 1 of the 3rd Schedule, INEC is empowered to, among others, organize, undertake, and supervise all elections, for our purposes here, to membership of the Senate, the House of Representatives, and the House of Assembly of each state of the Federation.
Per M. L. Garba, JSC
ELECTION – POLITICAL PARTIES – MONOPOLY TO SELECT AND NOMINATE CANDIDATES THEY WISH TO SPONSOR
The National Assembly, in exercise of its Constitutional powers to make laws under Section 4 (1) & (2) of the Constitution, enacted the Electoral Act, 2022, to provide for the conduct of elections, generally, as provided for in the Constitution, including the processes of selection and nomination of candidates by political parties for the elections. Both the Constitution and Electoral Act, 2022, have no provision for independent candidates for elections in the country, so the political parties have the monopoly to select and nominate candidates they intend to sponsor for such elections. For candidates to be eligible to contest elections in Nigeria, they have to be sponsored by a registered political party.
Per M. L. Garba, JSC.
POLITICAL PARTIES – PROCEDURES TO REGULATE THE PROCESSES OF SELECTION AND NOMINATION OF CANDIDATES AND THE ISSUE OF LOCUS STANDI
It is the Electoral Act, 2022, that provides procedures to regulate the processes of selection and nomination of candidates for elections by political parties, as well as the penalties for failure or non-compliance with the provisions therein. Additionally, the Electoral Act explicitly outlines the statutory right of individuals to lodge complaints and seek legal recourse through the courts regarding the selection and nomination of candidates by political parties for elections. One category of such complaints is defined in Section 285(14) of the Constitution as a “pre-election matter.”
It is the Electoral Act, and not the definition section of Section 285(14) of the Constitution, that establishes, acknowledges, and grants the right of action, legal competence, or locus standi to specifically identified individuals to initiate legal action in court to address complaints arising from or related to the processes of selection and nomination, or other activities outlined in the Act, in preparation for elections.
Per M. L. Garba, JSC.
FALSE INFORMATION BY A CANDIDATE – RIGHT OF THE ASPIRANT
Section 29(5) of the Electoral Act outlines provisions for a complaint regarding the provision of false information by a candidate concerning their constitutional eligibility to contest an election. It states: “(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”
These provisions not only establish a cause of action—wherein a candidate of a political party provides information in the affidavit or any document submitted by them related to meeting the constitutional requirements for contesting an election, which is reasonably believed to be false—but also specifically confer the right to initiate such action. This legal competence or locus standi is vested in “Any aspirant who participated in the primaries of his political party” to undertake or commence the action before the Federal High Court.
Per M. L. Garba, JSC.
DOCUMENT – CONSTITUTIONAL REQUIREMENTS – FALSE CERTIFICATE DISQUALIFIES FOR ELECTION
The constitutional requirements for qualification to contest as a member of a House of Assembly are outlined in Section 106 of the Constitution. Section 107(1)(i) specifies that no person, even if they have met the requirements of Section 106, can qualify for election if they present a forged certificate to INEC.
Section 107(1)(i) clearly delineates the legal consequence for presenting a forged certificate to INEC: disqualification from election to the House of Assembly. However, it does not grant the right or legal competence to any individual to initiate legal action to determine the authenticity of a certificate presented to INEC for disqualification purposes.
As previously mentioned, the Electoral Act was formulated by the National Assembly to provide a comprehensive framework guiding the procedures and processes for all stakeholders involved in election preparation, as mandated by the Constitution, the grund norm.
Section 29(5) of the Electoral Act identifies the class or category of individuals mentioned in both Sections 106 and 107(1) of the Constitution regarding qualification and disqualification, respectively, to contest elections for the House of Assembly.
Per M. L. Garba, JSC.
LOCUS STANDI – PERSON – MEANING ASPIRANT
it’s worth noting that the term “person,” commonly utilized in Sections 106 and 107 of the Constitution, was also employed in Section 31(5) of the Electoral Act, 2010 (as amended in 2015), which has since been replaced by the current Act of 2022. This provision granted the right of action, legal competence, or locus standi to initiate legal action challenging any false information provided by a candidate in the Affidavit or any document submitted for their constitutional qualification to contest a House of Assembly election.
Just as in Sections 106 and 107 of the Constitution, Section 31(5) of the 2010 Electoral Act stipulated: “(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.”
The provisions of Section 29(5) of the 2022 Electoral Act are substantially similar in their essence, creating and conferring a right of action and locus standi to challenge information provided by a candidate regarding their constitutional qualification to contest an election. The key difference lies in the replacement of “Any person” with the more restrictive “Any aspirant who participated in the primaries of his political party” in the 2022 Act.
Under Section 31(5), the right of action was open to all, while under Section 29(5) of the 2022 Act, only aspirants who participated in their party’s primaries are granted the legal right of action, competence, or locus standi to challenge a candidate’s alleged falsity of information provided in the Affidavit or other documents related to their qualification to contest the election.
In this new framework under Section 29(5), individuals not meeting the criteria of being an aspirant who participated in their party’s primaries lack the necessary legal competence or locus standi to initiate legal action based on alleged falsity of information provided by a candidate in the Affidavit or related documents concerning their Constitutional qualification to contest the election.
Per M. L. Garba, JSC.
PRE-ELECTION MATTER – REQUIREMENTS TO BE MET
In order for a competent pre-election matter, as defined under the provisions of Section 285 (14) of the Constitution, the following requirements must be met or satisfied:-
(a) The claimant must be an aspirant who contested or participated in political party’s primaries conducted for the nomination or selection of a candidate for an election;
(b) The complaint must relate to the breach of the Electoral Act of any Act of the National Assembly regulating the conduct of the primaries of a political party or allegation of breach of the provisions of the guidelines of the political party in conduct of the party’s primaries; or
(c) The complaint of the aspirant may be a challenge to the actions, decisions or activities of the INEC in respect of the aspirant’s participation in an election or that the provisions of the Electoral Act or any Act of the national Assembly regulating elections in Nigeria has not been complied with by INEC in respect of the selection or nomination of candidates and participation in an election.
(d) Alternatively, the claimant must be a political party who complains about or against the actions, decisions or activities of INEC to disqualify its candidate from participating in an election, or
(e) That the complaint must be that the provisions of the Electoral Act or any other applicable law has not been complied with by INEC in respect of the nomination of candidates of the claimant political party for an election, timetable for election, registration of voters and other material activities of INEC in respect of preparation for an election. The provisions of Section 285 (14) on the definition of a pre-election do not envisage and cannot accommodate, an action purportedly filed, initiated or undertaken by any claimant/s who is not an aspirant who participated in the primaries of his political party or a political party that does not complain about or against the actions, decisions or activities of INEC in respect of the nomination of its candidate/s for an election, timetable for an election, registration of voters and other activities of INEC that directly affects the nomination of its, candidate/s for the election.
In these premises, actions undertaken or initiated by any other person/s or political party/parties to question or challenge the nomination of candidate/s of different political parties to which they are not members, do not constitute, and/or qualify as pre-election matters as defined in Section 285 (14) of the Constitution. Such person/s or political party/parties that purport to challenge or question the nomination of candidates by other political parties would merely be busy bodies doing nothing, but dabbling and poking noses into the internal affairs of those other parties that do not, in law, directly affect their own interest and preparations for an election. It would certainly be absurd to ascribe to the clear meaning of a pre-election matter in Section 285 (14), an open-ended and free-for-all intent, in favor of persons or political parties who have no real interest and genuine complaint against the activities of INEC in relation to the nomination of their candidate/s for an election or other actions, decisions of INEC that affect their preparations for an election. The confusion and chaos that would result are better imagined in both our political space and administration of justice in Nigeria.
– Per M. L. Garba, JSC.
PRIMARY ELECTIONS – CANDIDATES – INEC LACKS THE POWER OR DISCRETION TO REJECT NAMES OR LIST OF CANDIDATES SUBMITTED BY PARTIES
Sections 29 (1) and 84 (5) (c) (ii) prescribe that political parties shall submit to INEC, list of candidates it proposes to sponsor for an election, who must have emerged from valid primaries conducted for the selection/nomination of candidates. Once submitted, or forwarded by the political parties, INEC lacks the power or discretion to refuse to accept or to reject the names or list of candidates submitted or forwarded in line with the provisions of the Act. In fact, after the forwarding or submission of the list or names of candidates by the political parties to INEC, the process of valid nomination of such candidates to INEC becomes completed, under the Electoral Act and that is why Section 29(3) stipulates that:
“(3) The commission shall, within seven days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”
– Per M. L. Garba, JSC
CANDIDATES – INEC HAS NO POWER TO DISQUALIFY CANDIDATES VALIDLY NOMINATED
The law remains that INEC has no legal power and authority to disqualify candidates validly nominated and duly submitted or forward to it by political parties, in compliance with the provisions of Electoral Act, by rejecting or refusal to accept the nomination. See Action Congress v. INEC (2007) 12 NWLR (pt. 1048) 270.
– Per M. L. Garba, JSC
APPEAL – INCOMPETENCE OF SUIT – INFESTS JURISDICTION OF COURT
Contagiously, the defect of incompetence of the suit has infested the jurisdiction of the Court to adjudicate over the appeal beyond this stage. See Akinbobola v. Plisson Fisko Nig. Ltd. (1991) 1 SCNJ, 129, Ehuwa v. Ondo State Independent Electoral Commission (2006) 11-12 SC, 102, (2006) LPELR-1056 (SC), Ezenwankwo v. APGA (2022) LPELR-57884 (SC), Nwoko v. Waoboshi (2020) 13 NWLR (pt. 1742) 395 at 400 (SC), Ebebi v. Esemekumor (2022) 1 NWLR (pt. 1812) 463 (SC).
– Per M. L. Garba, JSC
APPEAL – POWER OF APPELLATE COURT TO DISTURB PERVERSE DECISIONS OF LOWER COURTS
As it is well-known, such an interference would only be warranted where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against the weight of evidence; put differently, where the trial Judge took into account matters which he ought not to have taken into account or where he shut his eyes to the obvious Atolagbe v. Shorun [1985] LPELR -592 (SC) 31; C-D.
Such a perverse finding is a finding of facts which is merely speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge Iwuoha and Anor v. NIPOST and Anor [2003] LPELR-1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. [1985] 3 NWLR (pt. 13) 407). – Per C. C. Nweze, JSC
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Federal High Court Practice Directions 2022
3. Federal High Court Rules 2019
