LABOUR PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2013)

LABOUR PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR

(2013)LCN/6611(CA)

(2013) LPELR-21960(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/C/95/2012

RATIO

WORDS AND PHRASES: LOCUS STANDI

Simply put, the term locus standi denotes the legal capacity to institute proceedings in a court of law. It is the right of appearance in a court of Justice to litigate on issue; to either to establish a right or to defend that right against any injury actual or threatened. The Supreme Court in Dada vs. Ogunsanya (1992) 3 NWLR (Pt. 232) 754 said:
“It is settled law that locus standi is the legal capacity to institute an action in a court of law Thomas v Olufosoye (1986) 1 NWLR (pt. 18) 669, and if a person had no legal standing to institute an action, the Court will have no jurisdiction to entertain his claims – See Madukolu v Nkemdilim (1962) 1 All NLR 587 at 595, (1962) 2 SCNLR 341.”
See also: Owodunni v. Regd. Trustees of CCC (2000) 10 NWLR (Pt. 675) 325, (2000) 6 S.C. (PART III) 60.

Locus standi is always a threshold issue. This is simply because when the locus standi of the plaintiff is attacked, it is a challenge to the jurisdiction of the Court. And, it is trite that a challenge to the jurisdiction of a Court can be raised at any stage of the proceedings, even on appeal. If the plaintiff lacks locus standi to institute the action ab initio, then the Court is itself bereft of jurisdiction to entertain the Suit at all. See:
NDIC vs CBN (2002) 4 MJSC 66; Arjay Vs AMSL (2003) 5 MJSC 1; Danjuma vs. Kanoma (2004) 44 WRN 135 at 157.

GROUND OF APPEAL: DETERMINING WHAT MAKES A GROUND OF APPEAL INCOMPETENT

A ground of appeal which alleges an error in law occasioning a miscarriage of Justice is not incompetent. What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.
A ground of appeal should not therefore be vague or couched in general terms. It should disclose a reasonable ground of appeal such that a respondent is given sufficient notice and information of the precise nature of the appellant’s complaint; and, consequently, of the issues that are likely to arise on the appeal. See: Order 6 Rule 3 Court of Appeal Rules 2011; Aderounmu v. Olowu (2000) 2 SCNJ 180; (2000) 4 NWLR (Pt. 652) 253; Hambe v. Hueze (2001) 2 SC 26 at 34; (2002) 4 NWLR (Pt. 703) 372; Monguno v Bluewhales & Co (2011) 2 NWLR (PT 1231) 275.
Ground 2 of the Grounds of Appeal cannot be described as vague, having set out the particulars of its complaint; and the Respondents were not in doubt as to what nature of complaint they were to face. Ground 2 of the Grounds of Appeal is therefore not incompetent.
It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on Appeal. In Ikweli v Ebele (2005) CLR 2(L) (SC), (2005) 7 MJSC 125, the Supreme Court, per Oguntade JSC said:
“In Saraki v. Kotoye (1992) 9 NWLR (pt. 261) 156 or 184, the Supreme Court, discussing the necessity for a ground of appeal to flow or arise from the judgment appealed against observed:
“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590.
Grounds of appeal are not formulated in nubibus.
They must be in firma terra, namely arise from the judgment.
However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties.”
The ground of appeal must arise from and be based on the judgment on appeal, which is the matter in controversy between the parties. See also CCB Plc. v Ekperi (2007) 4 MJSC 172.
Grounds 3 and 4 of the Grounds of Appeal complain of the judgment in FHC/CA/CS/17/2011 and in particulars go further to cite from the said judgment. But, FHC/CA/CS/82/2011, and not FHC/CA/CS/17/2011, is the judgment on appeal. The reason for this, as submitted by Mr. Akaraiwe for the Appellant is that the trial court had wholly adopted its judgment in FHC/CA/CS/17/2011 in the judgment on appeal, FHC/CA/CS/82/2011. However, it is important not to lose sight of the fact that FHC/CA/CS/82/2011 is the case on appeal. The Appellant was not a party in FHS/CA/CS/17/2011; and the said FHC/CA/CS/17/2011 is not on appeal. What the Appellant ought to bring before the appellate court is its complaint on the judgment on appeal, FHC/CA/CS/82/2011: and, not aspects of the judgment in FHC/CA/CS/17/2011, which is not on appeal and thus not before this Court. Grounds 3 and 4 are, for these reasons, incompetent and are hereby struck out.
It is trite that where a ground of appeal is incompetent and has been struck out, any argument offered in support thereof in the brief of argument becomes irrelevant. Therefore any issue for determination based on such incompetent ground of appeal goes to no issue and would also be struck out. See: Thor Ltd vs. First City Merchant Bank Ltd. (2002) 2 S.C. (PT. 1) 138. PER ONYEKACHI A. OTISI, J.C.A.

JUSTICE

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

LABOUR PARTYAppellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTYRespondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, sitting in Calabar Judicial Division, delivered on 11th November, 2011 in Suit No FHC/CA/CS/82/2011.
Suit No FHC/CA/CS/82/2011 had commenced at the Abuja Judicial Division of the Federal High Court but was later transferred to the Calabar Division of the Court, upon Order of the Abuja Division of the Court made on 30th March, 2011. The 2nd Respondent was not originally a party in the suit but was joined, upon its application, by Order of this Court made on 16th January, 2013.
The Appellant, as plaintiff in the lower court, took out on originating summons against the 1st Respondent, seeking a resolution of the following questions:
i. WHETHER the provisions of the Electoral Act as amended on the 29th day of December, 2010 and the Defendant’s Guidelines published under the Electoral Act before if was amended were effective as at the 4th, 6th, 7th and 13th days of January, 2011;
ii. WHETHER the Guidelines issued by INEC Pursuant to the Electoral Act on the 29th day of December, 2010 was not valid and subsisting as at the 29th day of December, 2010;
iii. WHETHER in the light of the failure by a political party to wit the peoples’ Democratic Party to comply with the express provisions of section 87(4) in conjunction with section 85 of the Electoral Act as amended in December, 2010, the Defendant ought not to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections;
iv. WHETHER in the circumstances the Peoples’ Democratic Party has any candidate whatsoever in the Cross River State with respect to the April, 2011 elections.
v. Consequently, WHETHER the Defendant’s publication of the list of PDP candidates in Cross River State for the 2011 elections is not a nullify;
vi. WHETHER the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(4) of the said Electoral Act as amended was not limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act;
vii. WHETHER the legal effect of the word “shall” in Section 87(4) conjunction with Section 85 of the Electoral Act did not make it mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congresses to determine delegates for the purpose of adopting Indirect Primaries method which if in fact did adopt.
Upon resolution of the above questions, the Appellant sought the following reliefs:
1. A DECLARATION that the provisions of the Electoral Act as amended and assented to on the 29th day of December, 2010 were effective as at the 4th, 6th, 7th & 13th days of January, 2011;
2. A DECLARATION that the Guidelines issued by the Defendant hereof pursuant to the Electoral Act 2010 and prior to the amendment of the Act on the 29th day of December, 2010 were valid and subsisting as at the 29th day of December, 2010 and effective as at the 4th, 6th, 7th & 13th day of January, 2011:
3. A DECLARATION that in the light of failure by a political party in Cross River State that is to say, the Peoples’ Democratic Party to comply with the express provision of Section 87 (4) of the Electoral Act as amended in December, 2010, the Defendant ought to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections;
4. A DECLARATION that in the circumstances, the Peoples’ Democratic Party has no candidate whatsoever in the Cross River State with respect to the April, 2011 election and further, that the Defendants publication of the list of PDP candidates in Cross River State for the 2011 elections is a nullity;
5. A DECLARATION that the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(1) of the said Electoral Act as amended is limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and certainly not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act and that to extend if to Section 87(4), Section 85 and indeed other sections of the Act is to render the Defendant a toothless bulldog incapable of effectively regulating elections in Nigeria:
6. A DECLARATION that the legal effect of the word “shall” in Section 87(4) in conjunction with Section 85 of the Electoral Act made if mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congress to determine delegates for the purpose of adopting Indirect Primaries method which it in fact did adopt;
7. AN ORDER restraining the Defendant from publishing, disseminating and howsoever implementing the results of the so-called primaries organized by the Peoples’ Democratic Party in the light of the complaints enumerated above:
8. AN ORDER mandating the Defendant to disqualify the Peoples’ Democratic Party and its candidates in Cross River State from contesting in the April, 2011 elections for failure to comply with Sections 85 and 87(4) of the Electoral Act of December 29, 2010 as amended.
The trial court, in its Judgment delivered on 11th November, 2011, held at pages 125-126 of the Record of Appeal that:
“The Questions and Reliefs claimed in this suit are identical to that contained in this Court’s judgment, Exhibit A in Suit No FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. vs. INEC delivered on 24th March, 2011. By virtue of sections 73 and 74(l) and (m) of the Evidence Act this Court must take judicial notice of its judgment as well as other (sic) of different Courts…
That case raised similar questions and Reliefs from the Court as in the present suit. In the light of Exhibit A attached to the Defendant’s Counter affidavit duly served on the Plaintiff’s with its findings, resolution of the issues and final decisions on the some subject matter, this Court dismisses the Plaintiff’s Originating Summons with N20, 000.00 Cost to the Defendant.”
The Appellant, dissatisfied with the judgment of the lower court, filed the present appeal.
In the Notice and Grounds of Appeal filed on 7/2/2012, the Appellant raised four Grounds of Appeal; and, sought an Order, setting aside the said judgment of the lower court delivered on 11th November, 2011; and, an Order granting the plaintiff’s claim for the Originating Summons filed in the lower court on 17th March, 2011.
The Appellant’s Brief of Argument, settled by Ikeazor Akaraiwe, Esq. of Counsel, was filed on 6/6/12. The 2nd Respondent’s Brief settled by Julius Idiege, Esq. of Counsel, was filed on 27/3/2013. The 2nd Respondent also filed a Respondent’s Notice seeking to have the judgment on appeal confirmed on other grounds. The Appellant filed a Reply Brief to the 2nd Respondent’s Brief on 16/4/2013 but deemed properly filed and served on 2/12/2013. These Briefs were adopted by respective Counsel on 2/12/2013. The 1st Respondent filed no Brief.
The 2nd Respondent had raised a Preliminary Objection, filed on 27/3/2013, as follows:
1. That Grounds 2, 3 and 4 of the Notice of Appeal are incompetent robbing this Court of the jurisdiction to adjudicate on them.
2. That whereas this appeal is in respect of the judgment delivered on the 11th day of March, 2011; the complaints in grounds 3 and 4 of the Notice of Appeal and the Particulars thereof, are in respect of the judgment delivered on the 24th day of March, 2011 in Suit No FHC/CA/CS/17/2011:
Senator Liyel Imoke & 37 Ors. vs. Independent Notional Electoral Commission.
Learned Counsel for the 2nd Respondent submitted that Grounds 2, 3 and 4 of the Appellant’s Notice and Grounds of Appeal as well as its particulars, do not relate to or, arise or flow from the judgment of the lower court appealed against. That this Court is not therefore seized of jurisdiction to adjudicate on the said grounds of Appeal; relying on Oduah vs. Federal Republic of Nigeria (2012) ALL FWLR (PT 650) 1348 at 1362. It is further submitted that Ground 2 of the Notice of Appeal is not couched in accordance with rules of this Court and with judicial authorities. The Court is urged to strike out Ground 2 of the Grounds of Appeal. It is also submitted that if Ground 2 is struck out, Issue No 2 raised by the Appellant, and, which learned Counsel for the Appellant submitted flowed from Ground 2, should also be struck out; relying on African International Bank Ltd vs. Integrated Dimensional Systems Ltd (2012) ALL FWLR (PT 656) 413 at 431.
It is contended that Grounds 3 and 4 of the Grounds of Appeal are incompetent on the grounds that the complaints therein do not relate to or, arise or flow from the judgment of the lower court, subject matter of this appeal. That grounds of appeal must of necessity arise from the judgment of the lower court; relying on Elendu vs. Ekwoaba (1995) 3 NWLR (PT 386) 704, Manhattan Investment Ltd. vs. Co-operative Development Bank Plc. (2009) ALL FWLR (PT 483) 1381 at 1404; Saraki vs. Katoye (1992) 9 NWLR (PT 264) 156 at 184. It is submitted that Grounds 3 and 4 of the Grounds of Appeal are derived from the judgment in FHC/CA/CS/17/2011 and not from the judgment on appeal which is FHC/CA/CS/82/2011. The Court is urged to strike out Grounds 3 and 4.
It is further submitted that any issue formulated from an incompetent ground of appeal is itself incompetent. The Court is urged to strike out paragraphs 4.7 – 4.9 of the Appellant’s Brief wherein is stated that the corollary of Issue No 1 raised by the Appellant flows from Grounds 3 and 4.
It is submitted that when an incompetent ground of appeal is argued together with an incompetent ground, the incompetent ground is said to have corrupted the competent ground; relying on Idaayor vs. Tigidam (1995) 2 NWLR (PT 377, 359 at 378. The Court is urged to strike out Issue No 1 entirely. In the Reply Brief, it submitted for the Appellant that the complaint couched in Ground 2 was on an “error in law occasioning a miscarriage of Justice”; and that this was not a ground of appeal alleging, of the same time, misdirection in law and in fact. That Ground 2 of the Grounds of Appeal was not vague but did set out the particulars and nature of the misdirection.
On Grounds 3 and 4, it is submitted that the learned trial Judge had not only relied on the judgment in FHC/CA/CS/17/2011 but had completely adopted the judgment in that case as his judgment in FHC/CA/CS/82/2011 now on appeal; without at all pronouncing on the issues raised in the case on appeal, which was not in line with the position of the law.
Learned Counsel relied on Okoya vs. Santili (1994) 4 NWLR (Pt. 338) 256 at 304.
In considering the Preliminary Objection, I shall reproduce the Grounds of Appeal found at pages 128 – 138 of the Record of Appeal hereunder:
GROUND ONE – ERROR IN LAW
The Learned Trial Judge erred in law when he held that –
“The questions and reliefs claimed in this suit are identical to that contained in this court’s judgment, Exhibit A in Suit No. FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. v. INEC delivered on 24h March 2011. By virtue of Sections 73 and 74(1) & (m) of the evidence Act this court must take judicial notice of its judgment as well as other of different courts”.
PARTICULARS
a. The question and reliefs claimed in this suit are distinguishable and not identical to that claimed in FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. v. INEC and Appellant contends that relying on it has occasioned a miscarriage of Justice.
b. The questions and reliefs claimed in this suit (FHC/CA/CS/82/2011) are set out hereunder:
1. A DECLARATION that the provisions of the Electoral Act as amended and assented to on the 29th day of December, 2010 were effective as at the 4h, 6th, 7th & 13th days of January, 2011;
2. A DECLARATION that the Guidelines issued by the Defendant hereof pursuant to the Electoral Act 2010 and prior to the amendment of the Act on the 29th day of December, 2010 were valid and subsisting as at the 29th day of December, 2010 and effective as at the 4th, 6th, 7th & 13th day of January, 2011;
3. A DECLARATION that in the light of failure by a political party in Cross River State that is to say, the Peoples’ Democratic Party to comply with the express provision of Section 87 (4) of the Electoral Act as amended in December, 2010, the Defendant ought to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections;
4. A DECLARATION that in the circumstances, the Peoples’ Democratic Party has no candidate whatsoever in the Cross River State with respect to the April, 2011 election and further, that the Defendant’s publication of the list of PDP candidates in Cross River State for the 2011 elections is a nullity;
5. A DECLARATION that the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(1) of the said Electoral Act as amended is limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and certainly not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act and that to extend it to Section 87(4). Section 85 and indeed other sections of the Act is to render the Defendant a toothless bulldog incapable of effectively regulating elections in Nigeria;
6. A DECLARATION that the legal effect of the word “shall” in Section 87(4) in conjunction with section 85 of the Electoral Act made if mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congress to determine delegates for the purpose of adopting Indirect Primaries method which it in fact did adopt.
7. AN ORDER restraining the Defendant from publishing, disseminating and howsoever implementing the results of the so-called primaries organized by the Peoples’ Democratic Party in the light of the complaints enumerated above:
8. AN ORDER mandating the Defendant to disqualify the Peoples’ Democratic Party and its candidates in cross River State from contesting in the April, 2011 elections for failure to comply with sections 85 and 87(4) of the Electoral Act of December 29, 2010 as amended.
c. The questions for determination in FHC/CA/CS/82/2011 are stated hereunder: –
i. WHETHER the provisions of the Electoral Act as amended on the 29th day of December, 20l0 and the Defendant’s Guidelines published under the Electoral Act before it was amended were effective as at the 4th, 6th, 7th and 13th days of January, 2011;
ii. WHETHER the Guidelines issued by INEC pursuant to the Electoral Act on the 29th day of December, 2010 was not valid and subsisting as at the 29th day of December, 2010;
iii. WHETHER in the light of the failure by a political party to wit the Peoples’ Democratic Party to comply with the express provisions of section 87(4) in conjunction with Section 85 of the Electoral Act as amended in December, 2010, the Defendant ought not to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections:
iv. WHETHER in the circumstances the Peoples’ Democratic Party has any candidate whatsoever in the Cross River State with respect to the April, 2011 elections;
v. Consequently, WHETHER the Defendant’s publication of the list of PDP candidates in cross River State for the 2011 elections is not a nullify:
vi. WHETHER the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(4) of the said Electoral Act as amended was not limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act:
vii. WHETHER the legal effect of the word ‘shall” in Section 87(4) conjunction with Section 85 of the Electoral Act did not make if mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congresses to determine delegates for the purpose of adopting Indirect primaries method which it in fact did adopt.
d. On the other hand, the questions claimed in said FHC/CA/CS/17/2011 are as follows:
i. Whether in the light of Section 31(1) of the Electoral Act 2010 and other extant provisions and laws, the Defendant has the legal power and authority to reject, for any reason whatsoever, the names submitted by a political party to the Defendant as the candidates the party proposes to sponsor at as election or to disqualify the said candidates.
ii. Whether the Defendant, to whom the Peoples Democratic Party submitted the names of the Plaintiffs in mid-January 2011, well within the time specified in the election time fable, as the candidates that the party proposed to sponsor for various offices at the forthcoming general elections in Cross River State and who accepted and publicly displayed the said names at all the constituencies in the said state, can in law and equity, turn, on or about the 10th of February, 2011, after the deadline for submission of the names of candidates had passed, to reject or purport to reject the names of the said candidates.
e. The reliefs claimed in FHC/CA/CS/17 /2011 were as follows;
i. A declaration that the Defendant has no legal power and authority to reject, for any reason whatsoever, the names of the Plaintiffs, who are being sponsored by the peoples Democratic Party as its candidates to contest for various offices in Cross River state at the April, 2011 general elections.
ii. A declaration that the Defendant has no regal power and authority to disqualify for any reason whatsoever, the Plaintiffs who are the candidates of the peoples Democratic Party for various offices in Cross River State of the April, 2011 general elections.
iii. A declaration that the Plaintiffs were properly and validly nominated and their names properly submitted to the Defendant by the Peoples Democratic Party in mid-January, 2011, well within the time allowed by the election timetable as its candidates to contest for various offices in Cross River State at the forthcoming general elections.
iv. A declaration that, having accepted the list containing the names of the Plaintiffs, submitted by the Peoples Democratic Party in mid-January, 2011, well within the time allowed by the election timetable, as the candidates sponsored by the party in Cross River State for various offices at the April 2011 general elections without complaint or reservation, the Defendant was estopped from turning around on or about the 10th of February, 2011, after the last day for submission of the names of candidates had passed, to reject or nullify the said list and disqualify the Plaintiffs as candidates at the said elections.
v. An order compelling the Defendant to recognize the Plaintiffs as the candidates sponsored by the Peoples Democratic Party for various offices in Cross River State at the April, 2011 general elections.
vi. An order restraining the Defendant from rejecting or purporting to reject or disqualify the Plaintiffs as the candidates of the Peoples Democratic Party for various offices in cross River State at the April, 2011 general elections.
f. The questions and reliefs claimed in both suits being not identical in the opinion of the Appellant, adopting the judgment in FHC/CA/CS/82/2011 occasioned a miscarriage of Justice.
GROUND TWO – ERROR IN LAW
The Learned Trial Judge erred in law thus occasioning a miscarriage of Justice when in adopting his judgment in Suit No. FHC/CA/CS/17/2011, he failed to comment specifically on the legal effect of the word “shall” in Section 87(4) read in conjunction with Section 85 of the Electoral Act (as amended on 29th December, 2010); as well as the question whether the provision in Section 31(1) of the said Electoral Act:
“to not reject or disqualify candidates for any reason whatsoever” was not limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections”
PARTICULARS
a. The Appellant had asked the Honourable court to interprete (sic) section 87(4) of the Electoral Act (as amended on 29th December, 2010 in conjunction with Section 85 thereof and in particular whether the legal effect of the word “shall” did not make it mandatory for political parties to wit the Peoples’ Democratic party (PDP) to conduct Ward Congresses to determine delegates for the purpose of adopting Indirect Primaries method, which the PDP in fact did adopt.
b. The Learned Trial Judge, in adapting its judgment in FHC/CA/CS/17/2011 hook, line and sinker to this suit (FHC/CA/CS/82/2011), failed to pronounce on this question.
c. Appellant’s contention that the provision of Section 31(1) of the said Electoral Act to the effect that the Respondent shall “not reject or disqualify candidates for any reason whatsoever” was limited to failure by political parties (in this case, the Peoples’ Democratic Party) to –
“not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the election”.
And not extended to other acts of omission or commission of political parties, in particular the failure of the Peoples’ Democratic Party to comply with section 87(4) (read in conjunction with Section 85) of the Act.
GROUND THREE – ERROR IN LAW
The Honourable Court held at page 22 of the judgment in FHC/CA/CS/17/2011 (which said judgment was adopted wholesale in FHC/CA/CS/82/2011) THAT –
“The material averments in the Plaintiff s affidavit were not challenged by the Defendant and are deemed to stand and can be admitted as the true facts in this case”, erred in law which error occasioned a miscarriage of Justice.
PARTICULARS
a. Whether the material averment in the plaintiff’s affidavit in FHC/CA/CS/17/2011 were challenged by the Defendant had no bearing on FHC/CA/CS/82/2011, where the averments were all duly challenged, yet the fact of the lace of challenge by the Defendants in FHC/CA/CS/17/2011 constituted a major fulcrum of the judgment in that case which said judgment was adopted hook, line and sinker to FHC/CA/CS/82/2011.
b. In FHC/CA/CS/17/2011 whose judgment was adopted by the Honourable court in this suit, the Defendant (INEC)’s averment in paragraph 3 of the counter-affidavit to the effect that it was not aware of the holding of the PDP Ward Congress and primaries was captured at page 21 of the judgment of the Honourable Court, yet the Honourable court went on to say that INEC (the Defendant in that suit) did not challenge the material averments of the plaintiffs in that suit;
c. In FHC/CA/CS/17/2011 the Defendant (INEC)’s said averment of paragraph 3 of the counter-affidavit constituted sufficient rebuttal of the Plaintiffs’ (Senator Liyel Imoke & 32 Ors.) averments, contrary to the Honourable Court’s assertion that the material averments stood unchallenged, especially in the light of Section 85 of the Electoral Act (as amended) of 29th December, 2010 which mandated a registered political party to give to INEC –
“at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of …nominating candidates for any of the elective offices specified under this Act”.
d. In so averring in paragraph 3 of its counter-affidavit, in FHC/CA/CS/17/2011 (whose judgment was adopted by the Honourable Court in this suit) the Defendant (INEC) had sufficiently rebutted the plaintiff (Senator Liyel Imoke & 32 Ors.)’s affidavit in support of Originating Summons and it was for the said Plaintiffs to further depose showing proof that they complied with section 85 of the Act and in failing to do so, they confirmed the Defendant (INEC)’s averment.
e. In FHC/CA/CS/17/2011, as the Defendant (INEC) averred that it was not aware of the holding of the (Plaintiffs) Ward Congresses as per paragraph 3 of their uncontroverted counter-affidavit, it was for the honourable court to take that uncontroverted piece of evidence seriously; and if the plaintiff in that suit organized Ward Congresses, it was for them to furnish the Defendant. In not so doing, they clearly admitted by conduct that they did not hold Ward Congresses.
GROUND FOUR – ERROR IN LAW
The Learned Trial Judge erred in law when he made wholesale reliance of his judgment in FHC/CA/CS/17/2011 in FHC/CA/CS/82/2011 notwithstanding that the Defendant (INEC)’s mistakes in that suit which led directly to part of the decision in that case had no bearing on FHC/CA/CS/82/2011.
PARTICULARS
a. The Honourable Court’s observation as paragraph 3 page 2 of the judgment in FHC/CA/CS/17/2011 (the judgment adopted hook, line and sinker to the case) to the following effect-
“It is the courts opinion that the Defendants counter-affidavit filed along with a written address only on the date fixed for adoption of addresses by counsel, i.e. 18th March, 2011, after service on the Defendant almost four weeks ago, are baseless and an afterthought, putting it mildly and untenable in law. The court upholds the arguments of Plaintiff’s counsel, Paul Erokoro SAN on this issue”.
had no bearing whatsoever on this suit (FHC/CA/CS/82/2011) but formed partial basis for the Honourable court’s judgment in that suit whose consequences were adopted wholesale to this suit.
A close examination of the Grounds of Appeal would reveal that Ground 2 does not allege a misdirection and error of the same time. Rather states that the learned trial Judge “erred in law thus occasioning a miscarriage of Justice…” and then proceeds to give appropriate details. Ground 2 did not allege misdirection in fact and error in law of the same time or allege misdirection in law and fact in the same ground of appeal. On the meaning of the term “miscarriage of Justice”, the Supreme Court, per Onnoghen, JSC, in Aigbobaohi & Ors v. Aifuwa (2006) 2 S.C. (PT. 1) 82 said:
“From a long line of decisions of this court, miscarriage of Justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of Justice vary, not only in relation to particular facts, but also with regard to the jurisdiction invoked by the proceedings in question. A finding that a different result necessarily would have been reached in the proceedings affected by the miscarriage is not required before one could reach the conclusion that there has been a miscarriage of Justice in the proceedings. It is enough if what is done is not Justice according to law see Nnajifor v Ukonu (1986) 4 NWLR (pt. 36) 505. Adigun V A-G Oyo State (1987) 1 NWLR (pt. 53) 678; Okonkwo V Udoh (1997) NWLR (pt. 519) 16.”
A ground of appeal which alleges an error in law occasioning a miscarriage of Justice is not incompetent. What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.
A ground of appeal should not therefore be vague or couched in general terms. It should disclose a reasonable ground of appeal such that a respondent is given sufficient notice and information of the precise nature of the appellant’s complaint; and, consequently, of the issues that are likely to arise on the appeal. See: Order 6 Rule 3 Court of Appeal Rules 2011; Aderounmu v. Olowu (2000) 2 SCNJ 180; (2000) 4 NWLR (Pt. 652) 253; Hambe v. Hueze (2001) 2 SC 26 at 34; (2002) 4 NWLR (Pt. 703) 372; Monguno v Bluewhales & Co (2011) 2 NWLR (PT 1231) 275.
Ground 2 of the Grounds of Appeal cannot be described as vague, having set out the particulars of its complaint; and the Respondents were not in doubt as to what nature of complaint they were to face. Ground 2 of the Grounds of Appeal is therefore not incompetent.
It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on Appeal. In Ikweli v Ebele (2005) CLR 2(L) (SC), (2005) 7 MJSC 125, the Supreme Court, per Oguntade JSC said:
“In Saraki v. Kotoye (1992) 9 NWLR (pt. 261) 156 or 184, the Supreme Court, discussing the necessity for a ground of appeal to flow or arise from the judgment appealed against observed:
“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590.
Grounds of appeal are not formulated in nubibus.
They must be in firma terra, namely arise from the judgment.
However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties.”
The ground of appeal must arise from and be based on the judgment on appeal, which is the matter in controversy between the parties. See also CCB Plc. v Ekperi (2007) 4 MJSC 172.
Grounds 3 and 4 of the Grounds of Appeal complain of the judgment in FHC/CA/CS/17/2011 and in particulars go further to cite from the said judgment. But, FHC/CA/CS/82/2011, and not FHC/CA/CS/17/2011, is the judgment on appeal. The reason for this, as submitted by Mr. Akaraiwe for the Appellant is that the trial court had wholly adopted its judgment in FHC/CA/CS/17/2011 in the judgment on appeal, FHC/CA/CS/82/2011. However, it is important not to lose sight of the fact that FHC/CA/CS/82/2011 is the case on appeal. The Appellant was not a party in FHS/CA/CS/17/2011; and the said FHC/CA/CS/17/2011 is not on appeal. What the Appellant ought to bring before the appellate court is its complaint on the judgment on appeal, FHC/CA/CS/82/2011: and, not aspects of the judgment in FHC/CA/CS/17/2011, which is not on appeal and thus not before this Court. Grounds 3 and 4 are, for these reasons, incompetent and are hereby struck out.
It is trite that where a ground of appeal is incompetent and has been struck out, any argument offered in support thereof in the brief of argument becomes irrelevant. Therefore any issue for determination based on such incompetent ground of appeal goes to no issue and would also be struck out. See: Thor Ltd vs. First City Merchant Bank Ltd. (2002) 2 S.C. (PT. 1) 138. Issue 1b raised for determination by the Appellant, and, which it is submitted flows from Grounds 3 and 4, is hereby struck out.
The preliminary objection therefore succeeds in part.
In the Appellants’ Brief, two Issues were distilled for determination as follows:
1a. Whether the questions and reliefs claimed in this Suit (FHC/CA/CS/82/2011) are identical to that contained in suit No. FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. v. INEC (Ground 1)(b).
1b. AS A COROLLARY,
Whether the wholesale adoption of the judgment in FHC/CA/CS/17/2011 did not occasion miscarriage of Justice in FHC/CA/CS/82/2011.
2a. Whether in adopting the judgment in the other suit, the Honourable Court’s failure to comment specifically on the legal effect of the word “shall” in Section 87(4) (read in conjunction with Section 85) of the Electoral Act as specifically requested by the Appellant (as plaintiff in the lower court) did not occasion a miscarriage of Justice;
2b. AS A COROLLARY
Whether Section 31(1) of the said Electoral Act “to not reject or disqualify candidates for any reason whatsoever was not limited to failure by political parties to: “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to power at the elections”
Issue No 1b has been struck out.
On Issue No 1a, it is submitted that judgment of the lower court led to a miscarriage of Justice in that the questions and reliefs claimed in this Suit FHC/CA/CS/82/2011 are not wholly identical to the issues claimed in FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. vs. INEC. Learned Counsel referred in particular to paragraphs vi. and vii. of the questions for determination in FHC/CA/CS/82/2011 which seek interpretation of section 31(4) of the Electoral Act, as amended; and to construe the legal effect of the word “shall” in Section 87(4) in conjunction with section 85 of the Act.
On Issue No 2, it is submitted that a court is enjoined to comment specifically on issues and matters placed before it, relying on Ojogbue vs. Nnubia (1972) 7 NSCC 478 at 482, (1972) 6 SC 277 235-6: Okoyo vs. Santili (supra) at 304.
The 2nd Respondent raised a sole Issue for determination as follows:
Whether the learned trial judge was not right in holding that the reliefs and questions in FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. vs. INEC delivered on 24th March 2011 are identical with the reliefs and questions in the suit giving rise to this appeals; and whether by virtue of the provisions of section 73 and 74 (1) (m) of the Evidence Act, the learned trial judge was not also right to have taken judicial notice of his earlier judgment on the same set of facts and reliefs.
It is submitted for the 2nd Respondent that the Appellant had admitted in paragraph 4.6 of the Appellant’s Brief that the questions submitted for determination in FHC/CA/CS/82/2011 was similar to the questions that had been submitted for determination in FHC/CA/CS/17/2011. But, dissimilar in some points, in particular to paragraphs vi. and vii. of the questions for determination in FHC/CA/CS/82/2011 which seek interpretation of Section 31(4) of the Electoral Act, as amended; and to construe the legal effect of the word “shall” in Section 87(4) in conjunction with Section 85 of the Act. It is submitted that the Appellant did not in any of its addresses before the lower court raise for consideration and determination the said issues. That the lower court cannot be blamed for failure to consider issues not raised.
It is further submitted, assuming but not conceding, that the Appellant had formulated these issues for determination, that the learned trial judge was not under any legal obligation to consider all the issues raised by the parties if the court were of the view that the determination of one or more other issues disposed of the suit; relying on A.I.B. Ltd vs. Intergrated Dimensional Systems Ltd (supra) at page 435.
It is also submitted that the Appellant can raise a complaint on the non-consideration of these issues if they can show that the issues are material and that they suffered a miscarriage of Justice by the refusal of the trial judge to interpret the said sections. But, that the Appellant had failed to show any miscarriage of Justice.
The 2nd Respondent in its Respondent’s Notice contended that the judgment of the lower court in FHC/CA/CS/82/2011 be confirmed on grounds other than those relied on by the court below as follows:
1. The Appellant herein is a registered political party separate and distinct from the 2nd Respondent.
2. The gravamen of the contention of the Appellant in the suit giving rise to this appeal is the alleged failure of the 2nd Respondent to hold proper or regular primaries to elect contestants presented for the April, 2011 elections in Cross River State.
3. Appellant’s affidavit in support of the originating summons has not disclosed any breach of the Appellant’s interest from the allegation complained against the 2nd Respondent.
4. Appellant’s supporting affidavit has not disclosed cause of Action and their locus standi to institute Suit No FHC/CA/CS/82/2011 giving rise to this appeal.
Consequently, the lower court lacked the jurisdiction to have howsoever entertained the suit.
The Appellant filed no response to the 2nd Respondent’s Notice. At the hearing of this appeal on 2nd December, 2013, learned Counsel for the Appellant attributed this failure to oversight of counsel.
The essential position of a Respondent who files a Respondent’s notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. See: American Cyanamid Company vs. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (PT 171) 15: Bob Manuel vs. Briggs (2003) 3 MJSC 122 (2003) 1 S.C. (PT 1) 95. It is therefore in order to consider the 2nd Respondent’s Notice.
As rightly submitted by the 2nd Respondent, the Appellant at paragraph 4.6 of the Appellant’s Brief admitted:
“We respectfully submit that the two sets of questions for determination however similar, were dissimilar at some point, in particular at pars. vi and vii of the questions for determination in FHC/CA/CS/82/2011 calling for the Honourable Court to interpret S. 31(4) of the Electoral Act as amended and to construe the legal effect of the word “shall” in S. 87(4) in conjunction with section 85 of the Act.”
The issues in both suits were hinged on the allegation that the 2nd Respondent failed to conduct primaries to elect candidates who contested under the party’s flag in the April 2011 elections into the State and National Assembly; and in consequence, that all their candidates should be disqualified by the 1st Respondent. It is not in issue that the Appellant is not a member of the 2nd Respondent but a different political party.
The Appellant is indeed a registered political party separate and distinct from the 2nd Respondent. The 2nd Respondent’s Notice has raised the jurisdictional issue of locus standi which they can do, even of this stage. See: Madukolu v. Nkemdilim (supra) Ike v. Nzekwe (1975) 2 SC 1: Mustapha v. Governor of Lagos State (1987)5 SCNJ. 14: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 715.

The main test or major determinant of locus standi is whether the plaintiff has sufficient interest in the subject matter of the suit. The plaintiff is said to have locus standi, if he has shown sufficient interest in the action and that his civil rights and obligations, have been or are in danger of being infringed. The onus of proof is on the party who has initiated the proceedings. The test of sufficient interest in the subject matter of the suit by the plaintiff is determined by a close examination of the statement of claim. If the interest of the plaintiff is satisfactorily established, then he is entitled to be heard. see: Inakoju vs. Adeleke (2007) 4 NWLR (PT 1025) 427 at 601 – 602: Amadi v Essien (1994) 7 NWLR (PT 354) 91: Adesanya v. The President of the Federal Republic of Nigeria (1981) 5 S.C. 112 at 151 and 152: Taiwo v Adegboro (2011) CLR 5 (c) (sc).
The Appellant as plaintiff before the lower court filed an affidavit in support to ground the originating summons. The locus standi or interest of the Appellant ought to be gleaned from the said affidavit. In the supporting affidavit deposed to by Ima Nsa-Adegoke, who is described in paragraph 1 thereof as gubernatorial candidate of the Appellant, it is stated:
3. That the Plaintiff has an interest as a Political Association in Nigeria to protect the Laws of the Federal Republic of Nigeria especially the Electoral enactments;
4. That I also have personal interest as citizen of Nigeria and the plaintiff’s gubernatorial candidate aforesaid in Cross River State to protect the said laws of the Federal Republic of Nigeria:
19. That I verily believe that failure by the Defendant to enforce the relevant laws would amount to a breach of the said Electoral Act as well as the 1999 Constitution of Nigeria and further, will encourage a culture of impunity and scuffle democracy:
I note that the Appellant did not state how they, as a Party, or how their members or their candidates were affected, by the alleged failure of the 2nd Respondent, which is a completely different party, to conduct primaries. Indeed certain fundamental questions arise do these averments satisfactorily demonstrate sufficient interest in the Appellant as to confer locus standi on the Appellant qua plaintiff in the lower court? Has the Appellant revealed that their civil rights and obligations have been or are in danger of being infringed or adversely affected by the alleged failure of the 2nd Respondent to conduct primaries and the failure of the 1st Respondent to act on this allegation? Has the Appellant show a miscarriage of Justice that would potentially work against them if the 1st Respondent is not compelled to disqualify candidates of the 2nd Respondent? In my considered opinion, the answer to these questions would be a resounding NO! The Appellant has not shown any breach of their interest or miscarriage of Justice.
The issue of locus standi focuses on the party seeking to get his complaint before the court; and, not on the complaint he wishes to have adjudicated. See: Ijelu vs. LSDPC (1992) LPELR- 1464 (sc). Appellant has not shown any sufficient interest in the complaint brought before the lower court. I agree with the 2nd Respondent that the lower court, ab initio, had no jurisdiction to entertain the matter, at all. The 2nd Respondent’s Notice, in consequence, succeeds.
In his concurring Judgment in Nigeria Airways Ltd. vs. Lapite (1990) 11- 12 S.C. 60, Nnaemeka-Agu JSC said:
“when a plaintiff, by his pleading, fails to show that he has a locus to institute an action, no issue in the case can be gone into, not even the question whether or not the statement of claim discloses a cause of action. The only and proper order to make is that striking out the suit. See Atapo vs Sunmonu (1987) 2 NWLR (PT 58) 587: Iwuaba vs Nwaosigwelem (1989) 5 NWLR (PT 123) 623”
An order striking out the suit is the appropriate order to make in the circumstance. Accordingly, Suit No FHC/CA/CS/82/2011 is hereby struck out. This appeal is in consequence hereby dismissed.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment delivered by my learned brother, Onyekachi A. Otisi, JCA, in this appeal.
For all the reasons very admirably marshaled therein, which I adopt, this appeal is one which was premised and founded on quick sand and therefore bound to fail or collapse, very easily. It is quite strange for a person who is not a member of a political party, to challenge or question that party on alleged failure to conduct primary elections for its members or any supposed irregularities in the conduct of such primary election It is even more strange for a political party to purport to challenge or question an alleged failure by another political party to conduct primaries for its members or alleged irregularities in the conduct of the primaries. As demonstrate in the lead judgment, no law vests the Appellant any right to enable it have the legal capacity or locus standi, to challenge the alleged failure by the 2nd Respondent to conduct primary election for its members for the nomination of candidate to contest the election in question conducted by the 1st Respondent. The Appellant, as far as the law is concerned, is a meddlesome interloper, a busy body who dabbles into affairs of others without invitation or any legal basis whatsoever, for want of recognition and idleness.
The only purpose of the Appellant’s action and this appeal, is to belabor the courts with clearly frivolous cases when they have more than enough real, genuine and crucial matters pending before them for expeditious determination.
This appeal deserves nothing but dismissal for being bereft of any semblance of merit and I join in dismissing it in terms of the lead judgment.
The 2nd Respondent very richly, in the circumstances of the appeal and the Appellant’s case, deserves costs, which follows events in litigation. See Obayagbona v Obazee (1972) 5 SC, 247: Biode Pharm. v Adsell (1986) 5 NWLR (46) 1076 at 1076.
I assess costs of N50,000.00 in favour of the 2nd Respondent to be paid by the Appellant.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading, in draft form, the judgment just delivered by my learned brother Onyekachi A. Atisi, Justice, Court of Appeal. The preliminary objection was considered and dealt with. So also is the Respondent’s notice.
A person can only acquire the locus standi to question the internal affairs of a party if he himself is a member of that party. A bystander cannot just acquire locus standi in a matter that does not concern him.
The Appellant by its own averments have not shown that it has the locus standi to question the mode of primaries of the 2nd Respondent. The Appellant has not shown sufficient interest in the action and that its civil rights and obligations have been or are in danger of being infringed. See Inakoju v. Adeleke (supra) and Olagunju v. Yahaya (supra).
For this and the more comprehensive reasoning in the lead judgment, I find no merit in this appeal. It is accordingly struck out.
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Appearances

Ikeazor Akaraiwe, Esq.For Appellant

AND

Julius O. Idiege, Esq. for 2nd RespondentFor Respondent