PEOPLES DEMOCRATIC PARTY v. PRINCE UGOCHUKWU NWACHUKWU & ORS (2019)

PEOPLES DEMOCRATIC PARTY v. PRINCE UGOCHUKWU NWACHUKWU & ORS

(2019)LCN/13390(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2019

CA/OW/52/2019

Justice

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

Justice

PEOPLES DEMOCRATIC PARTYAppellant(s)

AND

1. PRINCE UGOCHUKWU NWACHUKWU
2. HON EZENWA ONYEWUCHI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)

RATIO

DISTINCTION BETWEEN JURISDICTIONAL INCOMPETENCE WHICH IS EVIDENT ON THE FACE OF THE PROCEEDINGS AND ONE WHICH IS DEPENDENT ON ASCERTAINMENT OF FACTS, LEADS TO ERROR

Suffice it to say that my position in this regard would appear to be fortified by the pronouncement of Ayoola, JSC; in the case of MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR 1887 (SC). In the said case, his Lordship stated thus: –
xxxxx. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows: (i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed. (ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take notice of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings. (iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie. (iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence. (v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Courts incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons. (vi) A judgment given in proceedings which appear ex facie regular is valid. PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 1/2/2019 by the Federal High Court, Owerri Judicial Division presided over by Hon. Justice T.G. Ringim (hereafter to be simply referred to as the lower Court and learned trial Judge respectively). The action in which the lower Court delivered its judgment was commenced by the 1st Respondent herein (as Plaintiff). It was instituted against the Appellant (as 2nd Defendant) and the other two Respondents herein (as 1st and 3rd Defendants respectively) by way of originating summons dated 10/10/2019 and which issued on 12/10/2019. In the said initiating process, the 1st Respondent sought for the determination of the questions and reliefs set out hereunder:-
(i) Whether considering the provisions of Section 65 of 1999 Constitution of Federal Republic of Nigeria, 2017 2nd defendant’s Constitution, Part iv of 2nd defendant’s Electoral Guidelines for Primary Elections dated 2-4-2018, the Plaintiff is validly qualified as aspirant having paid the prescribed expression of interest, nomination fees,

screened and clearance certificate issued to him for the Imo East Senatorial District Primary Election.
(iii) (sic) Whether or not having regards to the provisions of 2nd defendant’s 2017 Constitution and Part iv of 2nd defendant’s Electoral Guidelines for Primary Elections dated 2-4-2018 Plaintiff was validly excluded by the 2nd defendant by refusing to allow the Plaintiff participate in the primaries of the Peoples Democratic Party (PDP) Imo East Senatorial District held at Kanu Nwankwo Sports Arena, Owerri, Imo State on 4-10-2018 by the 2nd defendant.
(iv) Whether or not having regards to the provisions of Peoples Democratic Party (PDP)Constitution, 2017, Part iv 2nd defendant’s Electoral Guidelines for Primary Elections dated 2-4-2018 and all the Plaintiff’s documents as exhibited before the trial Court, a refusal or a denial of the Plaintiff to participate in the 2nd defendant’s Imo East Senatorial District Primary Election and having the Plaintiff paid all the requisite fees, screened and issued with clearance certificate for the contest of the primaries of the Imo East Senatorial District Primary Election, the primaries

conducted by the 2nd defendant on 4-10-2018 in Imo East Senatorial District Primary Election without the Plaintiff is null and void.
(v) Whether by virtue of the provision of the Peoples Democratic Party (PDP), 2017 Party Constitution, and Part iv of 2nd defendant’s Electoral Guidelines for Primary Elections 2-4-2018 the Plaintiff is eligible to contest for the primary election for the Imo East Senatorial District Primary Election conducted by the 2nd defendant on 4-10-2018 and having the 2nd defendant excluded the Plaintiff as a member of 2nd defendant to contest same can nullify the primaries conducted by the 2nd defendant on 4-10-2018 and rerun same by including the Plaintiffs name among the aspirants.
(vi) Whether non-compliance with 2nd defendant’s Constitution, Electoral Guidelines for Primary Election dated 2-4-2018 and Section 87(1) (4)(c) (9) by excluding the Plaintiff, an aspirant from participating in 2nd defendant’s Imo East Senatorial District Primary Election on 4-10-2018, can make the 3rd defendant not to recognize the primaries conducted by the 2nd defendant on 4-10-2018.

(vii) Whether the 3rd defendant can recognize and publish the name of 1st defendant as the 2nd defendant’s Imo East Senatorial Candidate Imo State when the Plaintiff, an aspirant was unlawfully excluded from participating in the said primaries conducted on 4th October, 2018.
(viii) Whether the declaration of 1st defendant as the winner of 2nd defendant’s Imo East Senatorial District Primary Election conducted on 4-10-2018 is valid when Plaintiff an aspirant was unlawfully excluded from participating in the said Primary Election for Imo East Senatorial District.
(ix) Whether the exclusion of Plaintiff, an aspirant from participating in the Imo East Senatorial District Primary Election conducted by the 2nd defendant on 4th October, 2018, is in compliance with Section 36 of 1999 Constitution of Federal Republic of Nigeria (as amended) Section 87(1)(4)(c) (9) of Electoral Act 2010 and Part iv of 2nd defendant’s Electoral Guidelines for Primary Elections dated 2-4-2018.
Plaintiff hereby claims as follows:
1. A declaration that the 2nd defendant illegally excluded the Plaintiff, an aspirant from participating in the Imo East Senatorial District Primary Election conducted at Kanu Nwankwo

Sports Arena, Owerri, Imo State on 4-10-2018.
2. A declaration that the Plaintiff as a legal, registered card carrying member of 2nd defendant and who was screened and clearance certificate issued to him as an aspirant is eligible to participate in the 2nd defendant’s Imo East Senatorial District Primary Election conducted on 4-10-2018.
3. A declaration that the 2nd defendant’s Imo East Senatorial District Primary Election conducted by the 2nd Defendant on 4-10-2018 was illegal, having conducted same without due recourse to 2nd defendant’s Constitution, 2017, Part iv of 2nd defendant’s Electoral Guidelines for Primary Election dated 2-4-2018 having unlawfully excluded the Plaintiff, an aspirant from the said primaries.
4. A declaration that the 3rd defendant should refuse to recognize the Imo East Senatorial District Primary Election conducted by the 2nd defendant at Kanu Nwankwo Sports Arena, Owerri, on 4-10-2018.
5. A declaration that this Honourable Court should nullify the Imo East Senatorial District Primary Election conducted by the 2nd defendant on 4-10-2018, on the grounds that the said Primary is not in compliance with Section 36 of

1999 Constitution (as amended) of Federal Republic of Nigeria, Section 87(1)(c)(9) and Part iv of the 2nd defendant’s Electoral Guideline for Primary Election date d 2-4- 2018.
6. A declaration that the Plaintiff as aspirant who purchased nomination form was screened, and clearance certificate issued to him by the 2nd defendant is qualified to participate in Imo East Senatorial District Primary Election conducted at Kanu Nwankwo Sports Arena, Owerri Imo State on 4-10-2 18.
7. A declaration that the Imo East Senatorial District Primary Election conducted by the 2nd defendant on 4-10-2078 be nullified and another primaries re-schedule by the 2nd defendant including the name of the Plaintiff, an aspirant.
8. An order of this Honourable Court nullifying the result of lmo East Senatorial District Primary Election which declared the 1st defendant the winner of the said Primary Election by the 2nd defendant on the ground that the Plaintiff, an aspirant was unlawfully excluded from participating in the Primary on 4-10-2018.
9. An order of perpetual injunction restraining the 1st defendant from parading himself as the 2nd defendant’s candidate for the lmo East

Senatorial District for the 2019 general election.
10. An order of perpetual injunction restraining 3rd defendant from dealing with, recognizing and accepting 1st defendant as 2nd defendant’s candidate for lmo East Senatorial District for the 2019 general election.
IN THE ALTERNATIVE
The sum of Five Hundred Million Naira, only (N500,000,000.00) general damages being cost and expenses incurred by the plaintiff from the 2nd defendant for misleading the plaintiff who believed that as an aspirant, he was entitled to participate in the 2nd defendant’s primaries only to be disqualified on 4-10-2018, the date of 2nd Defendant’s Primary.

In its judgment, the lower Court disclosed that it considered the affidavits placed before it by the parties that cared to file the same, as well as exhibits attached to the affidavits; the preliminary objections filed by the Appellant and 2nd Respondent respectively; and having ruled on the objections which it considered together, the lower Court entered judgment for the 1st Respondent in respect of his alternative claim against the Appellant only, in the sum of N5 million as general damages. I will now

re-produce the preliminary objections brought by the Appellant and 2nd Respondent respectively; as well as relevant portions of the judgment of the lower Court in order to expose the reasoning of the said Court, in coming to its decision. Indeed, I consider this course expedient as the facts of the case are self-evident therefrom; and also having regard to the grounds of appeal of the Appellant in the notice of appeal upon which the instant appeal is founded.

The Appellant raised the preliminary objection seeking for the striking out of the 1st Respondents suit, by a motion on notice dated 16/11/2018 and filed on the same date. The grounds relied upon by the Appellant are: –
(a) The plaintiff lacks locus standi to institute this suit.
(b) The honourable Court lacks the jurisdiction to entertain the suit.
The motion has a supporting affidavit as expected.

The 2nd Respondent challenged the competence of the 1st Respondents suit by a notice of preliminary objection dated 19/11/2018 and filed on the same date. The notice of preliminary objection as expected has no supporting affidavit.

Therein, the grounds relied upon in challenging the jurisdiction of the lower Court to entertain the 1st Respondents suit, are: –
1. The plaintiff lacks the locus standi to institute this suit.
2. The plaintiffs action is a pre-primary election matter which is not cognisable under Section 8 of the Electoral Act and this Honourable Court lacks jurisdiction to entertain same.
3. The plaintiff having not participate in the primary election failed to bring himself within the ambit of Section 87(9) of the Electoral Act.
4. The Honourable Court lacks the jurisdiction to entertain this suit as presently constituted.

The lower Court in dealing with the objections of the Appellant and 2nd Respondents respectively, and in subsequently entering judgment in the manner it did exposed its reasoning from pages 243-254 of the record
thus:-
xxxxxx I have painstakingly considered the arguments and submissions made before me for and against the objections to the jurisdiction of this Court. As a matter of expedience, I find the simple issue raised by the Learned

Counsel to the 1st Defendant worthy of being adopted by this Court to determine both the 2 objections.
At the risk of repetition set (sic) let me quote the lone issue for determination which I rightly referred. It is: –
“Whether from the Originating Processes filed by the Plaintiff including the reliefs sought, this Honourable Court has jurisdiction to hear and determine this suit?”
A clean dissect of the above reveals that the key content there is the word jurisdiction.
xxxxx Juxtaposing the above listed 3 ingredients with the case at hand, I find no issues joined as regards the 1st & 3rd ingredients. None of the parties seem to have contended the Constitution of this Court or qualification of the judex. None of the parties seem to have contended the processes used in the institution of this matter. What is obviously in issue is whether the subject matter is competent as filed by the Plaintiff whose locus standi is questioned.
The subject matter of this case can be gleaned from the Originating Summons as filed by the Plaintiff. The 8 questions raised and

10 reliefs set on the face or the Originating Summons speak volume of issues all related to the Imo East Senatorial District Primary Election.
The most fundamental contention of the Plaintiff was that he was unlawfully excluded from participating in the said primary election.
xxxx If I may ask did the Plaintiff qualify to be defined as an aspirant? I answer this in the negative. Since it’s participation in party primaries election that qualifies one to be an aspirant, the Plaintiff who never seems to have participated in the said party primary election could hardly be said to be an aspirant.
In question 11 (or (iii)) and III (or iv) as set out in the Originating Summons, the Plaintiff submitted having being:-
“refused”, disallowed”, or “denied” “to participate in the 2nd Defendant’s Imo East Senatorial district Primary Election”.
In Reliefs 2 and 6 as set out in the Originating Summons the Plaintiff prays for declaration that he is “eligible” and “qualified” to participated (sic) in the said party primary election.
In Reliefs 1 and 8 as set out in the Originating

Summons, the Plaintiff prays for declaration that his “exclusion” from participation in the said Party Primary election is illegal and for order of the Court to nullify the said Party Primary election held on 4 -10-2018.
xxxxx In law, unchallenged and uncontroverted affidavit evidence is deemed admitted and must be acted upon by the Court. See xxxxxx It is, thus, evident that the plaintiff having not participated in the said primary election of 4-10-2018 is not an aspirant.
If I may further ask could the Plaintiff have any locus standi to institute this action without him being an aspirant in the said primary election?
xxxxx From the evidence so fair (sic) laid before me the Plaintiff seems to have been screened only but not cleared (as per Exhibit K) nor participated in the said Party Primary Election conducted by the 2nd Defendant on 4-10-2018. The recent authority above-cited has effectively laid bare the plaintiff as a person who has not participated in the party primary election. Because he

was not cleared or was excluded, he does not have the locus standi to sue on the conduct of the said party primary election.
xxx Narrowing down on persons who suffer exclusion such as the plaintiff in this instant matter, Agim, JCA in CHUKWU V PDP & ORS (2016) LPELR 40962 (CA) 55 A-F, held that:
“The alleged unlawful exclusion of an aspirant from participating in a primary election can be a valid cause for action for damages against those who were responsible for his unlawful exclusion from participating in the primaries. Such alleged unlawful exclusion cannot vest him with locus standi to sue complaining about primary election he did not participate in.
Applying the above law to the instant matter at hand the Plaintiff cannot rely on this alleged exclusion by the 2nd Defendant to be clothed with the required locus standi to complain against the PDP Imo East Senatorial Primary Election held on 4th October, 2018. Moreso, how would the 1st and 3rd Defendants, i.e(sic) a mere candidate, who won the said party primary election, and INEC, who would conduction (sic)

the general election only, be liable to the Plaintiff in damages for the allegedly unlawful exclusion to which they were not a party to?
Let me be reminded that the essential grouse of the Plaintiff in this matter is as captured in paragraph 1.07 of his Reply on Point of Law to the 1st Defendants Notice of Preliminary Objection. It reads:
“…the issue in this case is unlawful disqualification of the Plaintiff from participating in the 2nd defendant’s primary election for Imo East Senatorial District without affording him the opportunity to be heard …”
This issue seems to be the focus of the Plaintiff when he set out question viii (or ix) of his Originating Process, though same was rumbled with Section 36 of the CFRN 1999 & Section 87(1), (4)(c) and (9) of the Electoral Act and Part IV of the APGA (sic) Electoral Guidelines for Primary Elections (which none of the parties, including, the plaintiff, cared to exhibit).
Even though Relief 5 as set out in the Originating Process, prays for nullification of the said Party Primary Election, as allegedly conducted without the Plaintiff participating having being excluded in breach of

Section 36 of the CFRN 1999, it was followed up with alternative prayer for N500M damages. In law, alternative relief is grantable where it’s practically impossible to award any of items sought in the main relief. See: HOLBORN NIGERIA LTD V O.C. CHRIS ENTERPRISES LTD (2014) LPELR 23972 (CA) 36-37 A-C.
In this instant matter, it will be safe to hold that the, Plaintiff has no locus standi to question the PDP Imo East Senatorial District Primary Election which was held on 4th October, 2018 – him not being as aspirant who participated therein.
The Plaintiff is thus, incompetent to make all the 10 prayers as set out in his Originating Summons.
Be that as it may the Plaintiff is competent to question his pre-primary exclusion which he made in question viii (or ix) as set out in his Originating Process and this Honourable Court can validly consider his alternative relief most particularly since all of the Plaintiff’s 10 main reliefs are particularly impossible to be granted. This is in consonance with provisions of Section 11 of the Federal High Court Act, Cap Fl2, LFN, 2004 which gives me the power to dispose off legal and equitable claims of

parties completely and finally such as to discourage multiplicity of actions.
In the light of all of the above, these twin objections of the 1st and 2nd Defendants succeed in part to the extent that the Plaintiff has no locus standi to question the PDP Imo East Senatorial District Primary Election which was held on 4th October, 2018. But the Plaintiff’s questioning of his pre-primary election exclusion is worth ventilating in this Court.
Now having decided on the twin objections, let me proceed to the main suit even though crippled in the decision just above rolled. I do not intend to consider any material input of all the parties relative to any of the said PDP primary election which I have already decided that the Plaintiff is not competent to challenge having not participated in same.
My task is to simply determine the appropriateness of the Plaintiff’s exclusion a pre-primary election matter. This, the plaintiff challenged as having being done in breach of his right to fair hearing and educational qualification as provided under Section 36 and 65 of the CFRN 99.
For ease of reference Section 36 and 65 provides:-<br< p=”” style=”font-size: 14px;”>

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xxxx The material particulars set out by the Plaintiff that he was denied fair hearing was in paras 19, 20, 22, and 23 of his Affidavit in Support which stated that:
(19) That as the Plaintiff was waiting for the Imo East Senatorial Primary Election to commence, the Chairman of the Primary Committee invited Plaintiff, 1st defendant and other aspirants namely:- Christiana Ngozi Anyanwu and Ihebuzor Paschal Chiedozie fora meeting and in the said meeting, informed the Plaintiff that the 2nd defendant’s secretariat has disqualified the plaintiff.
(20) That the Chairman of the committee issued Plaintiff, 1st defendant and other aspirants the list of cleared senatorial aspirants. The list of cleared aspirants for Imo State Senatorial District issued by the Plaintiff is hereby exhibited and marked EXHIBIT K.
(22) That the reasons for the disqualification of the Plaintiff was not disclosed to the Plaintiff as Plaintiff was only informed of his disqualification at the Primary Election Venue on Thursday 4-10-2018 in the presence of

Plaintiff’s numerous supporters.
(23) That the 2nd defendant never drew Plaintiff’s attention to any issue or issues relating to his disqualification nor give Plaintiff the opportunity to respond to any issue or issues relating to Plaintiff’s disqualification.
The 1st Defendants response was anchored on paragraphs 3 ix, (x) (xi) (xii) (xiii) (xiv), (xv) and (xvi) of the 1st defendant’s counter affidavit to the Originating Summons.
xxxxx The 2nd Defendant’s response was a replica of the 1st Defendants (sic). In paragraphs 3 (ix), (xiv) of the 2nd Defendant’s Counter Affidavit against the Originating Summons, the 2nd Defendant equally averred that the Party (PDP) was in receipt of petitions against the Plaintiff bordering on non-possession of School Certificate which the party had to deal with by issuing Exhibit K (list of the cleared candidates without the Plaintiff) when the Plaintiff failed to come forward, despite invitations, to clear his name.
In my humble opinion the situation painted before me is the exercise of party’s choice of candidate to run for

primary election. This I feel is within the realm of what the party does and what the Courts are not inclined to question them on. The Court of Appeal in PDP V OGUEBEGO xxxxxxxxx restated the position of the Apex Court in ONUOHA V OKAFOR xxxxx that Courts have no jurisdiction to dabble into the domestic affairs of a political party.
Agreed the 2nd Defendant has not given the Plaintiff the chance to participate in the primary election and has observably not invited the plaintiff to clear his name on the Petitions (Exh. PDP and PDP B). Yet that in itself even though a seeming breach to Section 36 of the CFRN 1999, was not a breach to the provision of Section 65 of the same Constitution which reserves the right of sponsorship of candidate to the political parties only.
For the above simple reasons I believe the Plaintiff civil rights to participate in the party primaries election was denied in breach of his right to fair hearing even though the exclusion could not be revisited. That leaves the Plaintiff entitled to the Alternative Relief only.
As a general damage (sic), I consider the position which the plaintiff sought to have

contested for, i.e.(sic) senator of the Federal Republic of Nigeria and the Party (PDP) big as it is in this nation political sphere and award the sum of N5M payable to the Plaintiff by the 2nd Defendant who excluded him.
The award shall be payable within 2 weeks from the date of this judgment and shall attract 5% interest thereafter.

Being aggrieved with the part of the judgment of the lower Court awarding the sum of N5 million against it, the Appellant on 8/2/2019 filed a notice of appeal dated 1/2/2019 at the registry of the lower Court. The Appellant later filed another notice of appeal upon which the instant appeal is founded on 12/2/2019. It is dated 12/2/2019. Therein, the Appellant seeks for the setting aside and nullification of the general damages in the sum of N5 million awarded the 1st Respondent and against it by the lower Court. The notice of appeal contains 8 grounds of appeal and shorn of their respective particulars they read thus: –
GROUNDS OF APPEAL
GROUND 1
ERROR IN LAW
The learned trial Court erred in law when it granted reliefs to the plaintiff under S. 87(9) of the Electoral Act 2010 (as

amended) when the plaintiff was not an aspirant in the primary election in question as the said Court had no jurisdiction to do so.
GROUND 2
ERROR IN LAW
The learned trial Judge erred in law when it granted a whooping sum of N5,000,000.00 (Five million Naira) to the 1st respondent when the said 1st respondent did not prove any entitlement to damages.
GROUND 3
ERROR IN LAW
The learned trial judge erred in law when he awarded damages against the appellant when the appellant was not liable to the 1st respondent as such.
GROUND 4
ERROR IN LAW
The learned trial Court erred in law when it held thus:
For the above simple reasons I believe the Plaintiff civil rights to participate in the party primaries election was denied in breach of his right to fair hearing even though the exclusion could not be revisited. That leaves the Plaintiff entitled to the alternative relief only” when the 1st respondent did not prove that the appellant breached his right to fair hearing.
GROUND 5
ERROR IN LAW
The learned trial Judge erred in law when it (sic) held thus:
As a general damage, I consider the

position which the plaintiff sought to have contested for, i.e Senator of the Federal Republic of Nigeria and the party (PDP) big as it is in this nation political sphere and award the sum of N5M payable to the plaintiff by the 2nd Defendant who excluded him which occasioned miscarriage of Justice as the 1st respondents exclusion was based on law.
GROUND 6
ERROR IN LAW
The learned trial Court erred in law when it held thus:
Agreed the 2nd Defendant has not given the Plaintiff the chance to participate in the primary election and has observably not invited the plaintiff to clear his name on the Petitions (Exh. PDP and PDP B). Yet that in itself even though a seeming breach to Section 36 of the CFRN 1999, was not a breach to the provision of Section 65 of the same Constitution which reserves the right of sponsorship of candidate to the political parties only. Which finding is perverse and led to a miscarriage of Justice.
GROUND 7
ERROR IN LAW
The learned trial Judge erred in law when it entertained the alternative relief of the 1st respondent under S. 87(9) of the Electoral Act 2010 (as amended)

after coming to the conclusion that the 1st respondent was not an aspirant.
GROUND 8
ERROR IN LAW
The honourable Court erred in law when it awarded damages to the 1st respondent upon his erroneous belief that he was an aspirant in the primary election against the provisions of S. 87(9) of the Electoral Act 2010 (as amended).

The appeal was entertained on 1/4/2019 with learned counsel, F.A. Onuzulike adopting the Appellants brief of argument dated 7/3/2019 and filed on the same date, in urging the Court to allow the appeal.

In the same vein, learned counsel Frank A. Chukuka, in urging the Court to dismiss the appeal, relied on the brief of argument of the 1st Respondent dated 15/3/2019 and filed on the same date.

L.A. Njemanze of counsel in urging the Court to do what it considered appropriate adopted and relied on the brief of argument of the 2nd Respondent dated 11/3/2019 and filed on 12/3/2019.

The 3rd Respondent INEC, though served with the order of the Court made in the instant appeal on 26/3/2019 as well as hearing notice in respect of the hearing date of the appeal, filed no brief of argument

and was not represented by counsel on 1/4/2019.

Three issues were formulated for the determination of the appeal in the brief of argument of the Appellant. They read thus: –
1. Whether the trial Court had the jurisdiction to entertain the 1st respondent’s suit Grounds 1, 6 and 7.
2. Whether the trial Court had the jurisdiction to entertain the alternative relief of the 1st respondent the 1st respondent not being an aspirant in the said primary election of the appellant Grounds 2, 3, 4 and 8.
3. Whether the 1st respondent proved any liability against the appellant so as to entitle him to any damages Ground 5.

Two issues (which were not tied to the grounds of appeal) were formulated by the 1st Respondent for the determination of the appeal in his brief of argument. The issues are: –
(i) Whether the Court below has the jurisdiction to grant 1st respondent’s alternative relief.
(ii) Whether 1st respondent is entitled to damages as claimed in his alternative relief.”

The three issues formulated for the determination of the appeal in the brief of argument of the 2nd Respondent,

are word for word the same with those formulated by the Appellant. It is however expedient to note that the 2nd Respondent in his brief of argument took no definite or particular position (i.e. whether or not the appeal should be allowed or dismissed). His predicament in this regard as it were, is that he has not appealed against any part of the judgment of the lower Court and thus cannot argue against the said judgment. That in any event as he is a member of the Appellant, he cannot be seen as defending the aspect of the judgment of the lower Court appealed against by the Appellant. It is therefore obvious that the arguments of the 2nd Respondent on the issues formulated by him for the determination of the appeal, need no consideration as the only position which he can maintain in the instant appeal (having not lodged an appeal of his own) is to support or defend the judgment of the lower Court in every aspect and this he has glaringly not done in his brief of argument.

As earlier stated, the 1st Respondent did not tie the issues he formulated for the resolution of the appeal to the grounds of appeal in the notice of appeal; hence I am of the considered

view that the appeal is better decided on the issues formulated by the Appellant.

APPELLANTS ISSUE 1 WHETHER THE TRIAL COURT HAD THE JURISDICTION TO ENTERTAIN THE 1ST RESPONDENT’S SUIT?
Dwelling on this issue which was tagged or classified as the key issue in the appeal, the Appellant, having stated to the effect that the settled position of the law in respect to the nomination of a candidate for an election is the domestic affair of a political party and therefore not Justiceable, in the main submitted that the instant action in which the 1st Respondent who never participated in the primary election of the Appellant for an elective office, was not properly brought pursuant to the provisions of Section 87(9) of the Electoral Act 2010. This is because he was not an aspirant at the primary election in question.It is also the stance of the Appellant to the effect that the lower Court having found that the 1st Respondent was not an aspirant in the primary election in question and therefore lacking in locus standi, the said Court ought to have struck out the instant case. This is against the backdrop of the settled position of the law that

the only option available to a Court where it has no jurisdiction to entertain a suit, is to strike it out. That what the lower Court should have done in the instant case, was to have struck out the same given the lack of locus standi on the part of the 1st Respondent to have brought the same and not to have proceeded with any other aspect of the said case. The Appellant submitted that the lower Court was in grave error when it failed to strike out the instant suit. The Court was urged to resolve this issue in favour of the Appellant and hold that the lower Court lacked the jurisdiction to entertain the suit of the 1st Respondent. Cases considered to be relevant were cited in aid of the various submissions made under this issue.

APPELLANTS ISSUE 2 WHETHER THE TRIAL COURT HAD THE JURISDICTION TO ENTERTAIN THE ALTERNATIVE RELIEF OF THE 1ST RESPONDENT, THE 1ST RESPONDENT NOT BEING AN ASPIRANT IN THE SAID PRIMARY ELECTION OF THE APPELLANT?

I do not see any need for any review of the submissions of the Appellant under this issue as they are in my considered view no more than a rehash or reuse of the arguments under issue 1. Indeed, I

wouldnt know why the Appellant never saw the better sense in arguing his issue 1 and issue 2 together.

APPELLANTS ISSUE 3 WHETHER THE 1ST RESPONDENT PROVED ANY LIABILITY AGAINST THE APPELLANT SO AS TO ENTITLE HIM TO ANY DAMAGES?

In dwelling on this issue and having stated expressly that he adopted the arguments under his issues 1 and 2, in support thereof, the Appellant submitted to the effect that even if the lower Court had the jurisdiction to entertain the issue of damages claimed by the 1st Respondent, such damages could only be awarded where there is proof of liability against it (Appellant). It is the stance of the Appellant that there was no proof in this regard. It is also the stance of the Appellant that having not committed any wrong, the 1st Respondent was not entitled to the award of any damages. The Appellant predicated his stance in this regard, on the fact that the primary election it conducted was governed by laws the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2010 (as amended) and the guidelines for the conduct of the said election and that the 1st Respondent did

not establish any wrong that it did thereat. The Appellant submitted that the 1st Respondent having failed to prove any liability on its part, the lower Court was in error to have awarded the 1st Respondent the sum of N5 million. Cases considered relevant were cited by the Appellant in aid of his various submissions.

The 1st Respondent apparently responded to Appellants issues 1 and 2, under his issue 1. The 1st Respondent having quoted the portion of the judgment of the lower Court as contained on pages 249-250, submitted that there is no appeal by the Appellant challenging the erudite findings and decisions made by the lower Court in the portion of its judgment on the aforementioned pages to wit: that the said Court has the jurisdiction to determine his (1st Respondents) alternative reliefs. It is the stance of the 1st Respondent that as this is the case, the said decisions of the lower Court in question are deemed to have been conceded by the Appellant. That the lower Court therefore rightly held that he (1st Respondent) has locus standi in respect of his alternative claim by virtue of Sections 6(6) and 36 of the amended 1999 Constitution

despite the provisions of Section 87(9) of the Electoral Act, 2010 (as amended). That the lower Court therefore rightly relied on Sections 6(6) and 36 (supra) and the case of Chukwu v. PDP (supra) in holding that he has the locus standi in respect of his alternative relief. That his (1st Respondents) alternative relief is not predicated on his position as an aspirant, as misconceived by the Appellant but as rightly held by the lower Court, is predicated on the grounds that the Appellant was in breach of his fundamental rights and was unlawfully excluded from participating in the Appellants primary election for lmo East Senatorial District. The 1st Respondent urged the Court to resolve this issue in his favour. Cases considered relevant were cited in aid of the various submissions made by the 1st Respondent.

Respondents issue 2 in my considered view, would appear to be his response to Appellants issue 3. Dwelling on this issue and having set out copiously what the lower Court said on pages 251-252 of the record, and having also referred to several paragraphs of the affidavits he placed before the said Court, the 1st Respondent

submitted that he duly established that the Appellant is liable to pay him damages, as it misled him to embark on campaign, mobilization of delegates as well as incurring financial expenses for the conduct of the said primary election and only for the Appellant to unlawfully disqualify him (1st Respondent). This is more so as award of damages is at the discretion of the trial Court and which must be exercised with considerable degree of circumspection.

I consider it pertinent to first take on the stance of the 1st Respondent to the effect that the Appellant by not appealing against some of the findings the lower Court made in the portion of its judgment covering pages 249-250 of the record, has thereby conceded the said erudite findings and decisions made by the said Court on the above-mentioned pages and therefore it (Appellant) cannot be heard or seen to complain regarding the consideration of his alternative relief by the lower Court and the grant of same by the said Court.
I am of the considered view that the 1st Respondent in ventilating or expressing his position as captured above, has lost sight of the omnipotent,

fundamental, or invincible nature of the issue of jurisdiction when raised in an appeal and that an attack on the competence of an action invariably brings to the fore the jurisdiction of a Court to entertain the action in question. In this regard, see the case of MOZIE V. MBAMALU (2006) LPELR 1922 (SC) wherein the Supreme Court per Tobi, JSC; stated thus: –
With respect, I do not agree with him that the issue, cannot be raised in this Court. The competence of a person to file an action relates to jurisdiction and it can be raised in this Court. The respondents cannot shut out the appellants from raising the issue merely because the issue was well expressed by the learned trial Judge in his judgment.” That law is strange to me, if it is law at all.
The Appellant by its issues 1 and 2 (distilled from grounds 1, 6 and 7, and 2, 3, 4 and 8 in the notice of appeal respectively), expressly predicated the said issues on the challenge to the jurisdiction of the lower Court to have countenanced and granted the alternative relief of the 1st Respondent as it were, against the backdrop of the express finding by the said Court that the

1st Respondent lacked the locus standi in respect of the main reliefs in the light of the incompetence of the whole of the action or reliefs claimed by the 1st Respondent therein. Having regard to the grounds of appeal in the notice of appeal vis-a-vis issues 1 and 2 distilled from some of the said grounds, I am therefore of the considered view that the Appellant need not to have specifically appealed against the erudite findings and decisions the lower made on pages 249-250 of the record as contended by the 1st Respondent. Suffice it to say that my position in this regard would appear to be fortified by the pronouncement of Ayoola, JSC; in the case of MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR 1887 (SC). In the said case, his Lordship stated thus: –
xxxxx. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows: (i) Where on

the face of the proceedings a superior Court is competent, incompetence should not be presumed. (ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take notice of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings. (iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie. (iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its

own competence. (v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Courts incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons. (vi) A judgment given in proceedings which appear ex facie regular is valid.
In the instant case, the Appellant and the 2nd Respondent respectively, challenged the jurisdiction of the lower Court to entertain the suit of the 1st Respondent as constituted in that he (1st Respondent) lacked the locus standi to bring the same. The Appellant in its affidavit in support of the motion pursuant to which it challenged the jurisdiction of the lower Court to entertain the instant action, deposed in paragraph 4, to the effect that the 1st Respondents action is not properly constituted. In the same vein the 2nd Respondent glaringly disclosed that he was challenging the competence of the instant case and the jurisdiction of the lower Court to entertain the same, in grounds 2 and 3 of his

notice of preliminary objection. The challenge to the jurisdiction of a Court in respect of a matter on the basis of its incompetence, in my considered view, must necessarily be determined on the initiating processes of the action in question and not on the process or processes filed in response to the said action by the parties raising the issue. In this regard see the case of AJAYI V. ADEBIYI (2012) LPELR 7811 (SC) wherein the Supreme Court stated thus:
It is therefore noteworthy that an application or preliminary objection seeking to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at any time. In addition the relevant things to be considered by the Court in determining the issue of jurisdiction are facts as deposed to in affidavits, the writ of summons and statement of claim where one had to be filed and served. The statement of is not one of the relevant materials for the purpose xxxxxxx.

It would therefore appear to be clear that inasmuch as the Appellant by his grounds of appeal and issues 1 and 2 distilled from some of them, is questioning the jurisdiction of the lower Court, the stance of the 1st Respondent that the Appellant did not appeal against any of the finding(s) and decision(s), made by the lower Court; (and which in any event the lower Court was duty bound to have restricted itself to a consideration of the originating summons and its supporting affidavit, in coming to the said finding(s) and decision(s) for the purpose of resolving the challenge to the competence of the suit of the 1st Respondents), goes/go to nought. This is because, this Court is not to be guided by the finding(s) and decision(s) made by the lower Court in its resolution of the challenge to its jurisdiction to entertain the suit of the 1st Respondent; but on the consideration by it (this Court) of the originating summons, affidavit in support and documents attached thereto and make its own finding(s) to arrive at its own conclusion(s).

In any event it would appear from the portions of the

judgment of the lower Court that have been re-produced hereinbefore, that it was in the consideration of the supporting affidavit of the originating summons and the Exhibits attached thereto that the said Court came to hold thus: –
In the instant matter it will be safe to hold that the plaintiff has no locus to question the PDP Imo East Senatorial District Primary Election which was held on 4th October 2018 him not being as (sic) who participated therein.
The plaintiff is thus, incompetent to make all the 10 prayers as set out in his originating summons.
There is no appeal against the conclusion/finding of the lower Court as stated above by the 1st Respondent against who the conclusion/finding in question was made by the lower Court. Equally the Appellant as the beneficiary of the finding/conclusion as it were, made by the lower Court has not appealed against the same. All that the Appellant would appear to be saying in the instant appeal, is that the lower Court having found the 1st Respondent not to be entitled to all the 10 prayers in the originating summons, ipso facto had no jurisdiction to have

considered in the first place, the alternative relief of the said 1st Respondent and to have granted the same by awarding damages in any quantum or sum. The stance of the 1st Respondent on the other hand, is to the effect that as the lower Court never found his action incompetent, but only found him as having no locus standi to make all the 10 prayers the originating summons, the said Court eminently has the jurisdiction to have considered his (1st Respondents) alternative relief and to have made the award of damages it made.
The divergent positions of the Appellant and the 1st Respondent as captured above, in my considered view would be better resolved by the consideration of the jurisdiction of the lower Court (a Federal High Court), against the backdrop of the position of the said Court that the 1st Respondent was not competent to challenge the primary election of 4/10/2018 as he was not an aspirant thereat, and its (i.e. lower Court) proceeding to determine the appropriateness of the plaintiffs exclusion a pre-primary election matter and awarding damages against the Appellant in respect of the 1st

Respondents pre-primary election matter, in an action brought pursuant to, or by virtue of the provisions of Section 87(9) of the Electoral Act, 2010, as amended, (and which will hereafter be simply referred to as Electoral Act).
I am in no doubt that whether or not the lower Court can properly entertain a cause of action in respect of a pre-primary election matter such as the said Court found the grouse or complaint of the 1st Respondent to be, in an action brought pursuant to, or under Section 87(9) of the Electoral Act, cannot be difficult to resolve in the light of the numerous decided cases by the Supreme Court and this Court dealing with the jurisdiction conferred on the lower Court in respect of pre-election matters by Section 87(9) of the Electoral Act, which in my considered view is a special one in addition to the jurisdiction of the said Court as set out under the amended 1999 Constitution. One of the recent cases dealing with the jurisdiction of the lower Court under the Constitution and its jurisdiction pursuant to, or under Section 87(9) of the Electoral Act, vis-a-vis claims before the said Court, is that of

OLUGBEMI V. LAWRENCE (2017) LPELR 42361(SC). Therein, my Lord, Peter-Odili, JSC; stated thus:-
A revisit of the amended statement of claim of the plaintiff/1st respondent at the Court of trial would have a refreshing effect to the mind lest we forget what is at stake. The appellant had sought to guide the Court into the realm of Section 251(1) of the 1999 Constitution and its limitations towards producing a dichotomizing effect in the main or principal reliefs or ancillary reliefs issue. That is that because according to the appellant and supporters, the 2nd and 3rd respondents, the reference in the claim connecting a Federal Agency, in this instance INEC, the Independent Electoral Commission being ancillary to the main relief which did not connect that Agency, the jurisdiction of the Federal High Court was and cannot be activated in the suit herein.
I shall quote the relevant part of Section 251 of the Constitution which is thus:
Section 251 (1)(s)
xxxx
Section 87(9) of the Electoral Act, 2010 as amended states:-
“Notwithstanding the provisions of

the 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.”
In the case of Lokpobiri v Ogola & Ors (2015) 10-11 MJSC Pg. 74 at 93-94, paras G to G, this Court said:-
“I want us to also note that both the opening of Section 251 (1) and Paragraph S of the subsection confer authority on the National Assembly, in addition to the general provision of legislative powers in Section 4 of the 1999 Constitution as amended to enact an Act conferring additional Jurisdiction on the Federal High Court either exclusive or concurrently with State and Federal Capital Territory High Courts.
It is on the basis of the above constitutional provision particularly Sub-section (1) Paragraph (s) of Section 251 of the 1999 Constitution that the National Assembly enacted the Electoral Act, 2010, as amended and conferred concurrent Jurisdiction in pre-election matters on the Federal High Court

and State and Federal Capital Territory High Courts in Section 31 (5) and (6) and 87 (9) therefore which provide, inter alia….
Also to be referred is the case of Jev v Iyortyom (2014) All FWLR (pt. 747) pg. 749 at 773 Paras F-A, where the Supreme Court held:
“However, where the political party decides to conduct primary election to choose its flag bearer, any dissatisfied contestant at the primary is now empowered by Section 87(9) of the Electoral Act 2010 (as amended) to ventilate his complaint before the Federal High Court or High Court of a State or of the Federal Capital Territory; Peoples Democratic Party v Timipre Sylva The said Section 87 (9) is clear and unambiguous, the Courts are enjoined to give them their ordinary grammatical meaning: Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1.
By inserting this new provision into the Electoral Act, the legislation has made its intention very clear as to the reason, and purport, that a member of a political party who contested the primary election is entitled to challenge a breach of the party Constitution or Guidelines or Electoral Act, by filing an action at the Federal High Court or State High

Court or the Federal Capital Territory High Court, simpliciter.
The appellant really made a lot of fuss on main or principal relief as against ancillary relief upon which jurisdiction of Court may or may not be activated. Perhaps this Court had in a clairvoyant manner gone to great lengths in dealing with this attempt at creating boundaries of main and ancillary reliefs in relation to jurisdiction of Court in the case of Lokpobiri v Ogola (2016) 3 NWLR (pt. 1499) 328 at 366. The Court said:-
“To me, it is erroneous to say that for the Federal High Court to entertain a pre-election matter, the main relief(s) must be shown to fall within the exclusive jurisdiction of the Court because both jurisdictions are different. In a concurrent jurisdiction, if Court A has Jurisdiction to hear all the reliefs claimed, it necessarily follows that Court B must have the same jurisdiction otherwise it means giving something to someone with one hand and taking it away with the other hand. It is settled law that election and election related matters are sui generic (sic) and that the jurisdiction to hear and determine them is statutory just as the rights and

obligations connected therewith or arising there from. It is in that respect that the principles of common law may not be appropriate in election and related matters.
It is not in dispute that in civil actions, the jurisdiction of a Court to hear and determine the plaintiffs action depends on the claim(s) in the writ of summons and his pleadings. On the other hand, the jurisdiction of a Court to hear and determine an election or election related matter is statutory as provided in the statute establishing the cause of action and conferring Jurisdiction on the appropriate or particular Court(s) to hear and determine same.
In terms of election or election related matters, the jurisdiction of the Federal High Court to hear and entertain such matter is rooted in the relevant provisions of the Electoral Act, 2010 as amended earlier reproduced in this judgment. In respect of matters relating to post election jurisdiction of the Court, see Section 251 (4) of the 1999 Constitution as amended also supra. If we insist on the jurisdiction of the Federal High Court on pre-election and/or post-election matters being exercisable only where the main claim(s) is/are

within the exclusive jurisdiction of the Federal High Court, it will result in in Justice on the litigants which is clearly not the intention of the legislature. It is therefore very clear that the concurrent jurisdiction conferred on the Federal High Court to hear and determine pre-election and even post-election matters is clearly outside the exclusive jurisdiction of the Court under Section 251 of the 1999 Constitution as amended but in addition to the said exclusive jurisdiction and consequently subject to different consideration.
It is therefore my considered opinion when the Federal High Courts pre-election jurisdiction is invoked, the parties claims and relief(s) must be in conformity with the provisions of the Electoral Act, 2010, as amended, not under the provisions of Section 251 of the 1999 Constitution as amended. In fact, INEC may be a nominal party or be liable to an ancillary claim in a pre-election or post elections jurisdiction of the Federal High Court.
The position I have taken on this issue is advised by the decision of this Court in Jev v Iyortyom (2014) 14 NWLR (pt. 1428) 575 at 611-613; 626- 627; 630 and 631-632.

My attention has been drawn by learned counsel for the Respondent to the decision of this Court in PDP v Sylva (2012) 8-13 NWLR (pt. 1316) 85 and Kakih v PDP (2014) 15 NWLR (pt. 1430) 374 said to be in support of their contention that for the Federal High Court to exercise its pre-election jurisdiction under the Electoral Act, 2010, as amended, the main claim(s) or reliefs of the plaintiff must be within the purview of the provisions of Section 251 of the 1999 Constitution, as amended. A detailed reading of the facts of PDP v Sylva supra does not support that contention. The case simply held that Sylva who was not screened by his party (PDP) for the primaries in question nor participated in the said primaries, failed to bring himself within the provisions of Section 87 (9) of the Electoral Act, 2010, as amended and as such he had no locus standi to institute an action under the Section 87 (9) in any Court in Nigeria as his complaints were within the internal affairs of a political party which are not Justiciable. So, the reliefs claimed in that action were incapable of invoking the jurisdiction of the Court- see pages 127 & 137-139 or (sic) the report. It

must be pointed out that the effect of the decision in Sylvas case is that the action as constituted was not a pre-election matter and as such, it could not be entertained in any Court. Any other thing said is clearly obiter.
With respect to the decision of this Court in the case of Kakih v PDP, supra. I wish to emphasise that the Court did not hold the Federal High Court does not have jurisdiction to hear and determine pre-election matters. It held that it does but that the jurisdiction so conferred is exercisable by that Court when the main claim of the plaintiff falls within the provisions of Section 251 of the 1999 Constitution and not when the claim against an agency of the Federal Government is ancillary.
Having regard to what I have stated earlier in this judgment with respect to the sui generic nature of an election or election related matter and the jurisdiction of the Courts to entertain them, which are special statutory jurisdictions, the fact that the Federal High Court, by operation of Section 251 (4) of the 1999 Constitution is also clothed with jurisdiction to entertain post election matters whose claims or reliefs may not necessarily

involve/affect the Federal Government or any of its agencies, it is clear that the intention of the legislature in conferring the additional jurisdiction of the Federal High Court in relation to pre-election and post-election matters is clearly that the additional jurisdiction is to be exercised by the Court in accordance with Electoral Act, 2010, as amended, creating the jurisdiction as well as Section 251 (4) of the 1999 Constitution. It is therefore clear that Kakih’s case as regard the issue of the jurisdiction of the Federal High Court in pre-election matters is limited to its peculiar facts and circumstances having regard to the decision in Jev v Iyortyom supra.
It follows therefore that once an aggrieved party comes within the ambit of Section 87(9) of the Electoral Act, 2010 (as amended), the issue of main relief as against an ancillary one does not come into play or arise. Removing jurisdiction for some of the reliefs and endowing for other reliefs to a Court will lead to confusion as one Court will be dealing with a particular relief while the other Court is sorting out the reliefs allotted to it in a severance method that beats the imagination.

It would produce a never ending dispute since the facts in the two Courts are the same arising from the same base.
What is obtaining in the matter at hand as 1st respondent as plaintiff has his claim well positioned under Section 87 (9) of the Electoral Act, 2010 as amended, the original claims as captured in the Writ of summons and statement of claim and thereafter the Amended Statement of Claim. The said Section 87 (9), is opened with the word “aspirant” which the 1st respondent is as defined under Section 156 of the said Electoral Act to mean a person who aspires or seeks or strives to contest an election to a political office. Also to be noted is that reliefs 15 (vii), (x), (xi) and (xii) in the amended statement of claim which are to direct the 4th defendant, INEC, a Federal Agency not only to deny recognition to the 1st defendant and party but to direct the said 4th defendant to withdraw the certificate of return already issued to the 1st defendant as candidate of 2nd defendant and to issue the certificate to the plaintiff. Certainly what is sought in those reliefs cannot in all honesty be treated with the levity to which an ancillary claim would be

labelled as they are principal or major claims and prayers. Again I seek refuge in the case of this Court in Lokpobiri v. Ogola supra at page 106 Paras A-D, The Supreme Court said:-
“In Section 251 (1) and (s) of the Constitution (supra) read together with Section 31 (5) and Section 87 (9) of the Electoral Act (supra), it is specious and spurious to argue, as the respondent did, that the Federal High Court has no Jurisdiction, if the claim brought pursuant to Section 87 (9) of the Act (supra) does not involve the Federal Government or any of its agencies is a party the claim against it must be a principal relief and not a mere subsidiary thereof. This is a fallacy created by skewed construction of the provisions of the Constitution (supra) and the Electoral Act (supra) (Underlining mine).
In my humble view, the Federal Government or any of its agencies does not have to be a party in suit brought pursuant to Section 31 (5) and 87 (9) of the Electoral Act (supra) before the Federal High Court can exercise the jurisdiction conferred on it.
To hold the contrary view is to render inoperative and unnecessary the underlined portions of Section 251 (1)

and (S) of the Constitution (supra).
Clearly, appellant had cited Kakih v PDP (2014) 15 NWLR (Pt. 1430) 374 out of con Justice for the facts therein are not on all fours with what we are here faced with.
Indeed, the matter herein is laid to rest as the two Courts below were right in holding that the Federal High Court was seised with jurisdiction to hear the pre-election matter before that Federal High Court pursuant to Section 87 (9) of the Electoral Act, 2010 (as amended). The controversy on the issue of main or principal or ancillary relief does not arise and this appeal definitely lacks merit as the concurrent findings and conclusion of the two Courts below are not to be tampered with, the exceptions that would have empowered this Apex Court to so interfere, upset, disturb those findings and conclusion do not exist. The appeal is therefore dismissed.
I am of the considered view that what the case under reference has unequivocally decided is to the effect that the only matters or cases that the lower Court can competently entertain pursuant to the provisions of Section 87(9) of the Electoral Act, is one that falls clearly within the confine

or ambit of the jurisdiction conferred on the lower Court by the said section. This position, having regard to the several authorities, is clearly one in respect of the pre-election primary of a political party and at which the initiator of the said case or matter, must necessarily have been an aspirant/contestant thereat, and that the claim(s) or relief(s)sought by the said aspirant/contestant must be in tandem with the cause of action, created or donated by the said Section 87(9) of the Electoral Act. The lower Court in my considered view cannot be said to be wrong in its finding that the 1st Respondent was not an aspirant/contestant at the pre-election primary of the Appellant held on 4/10/2018. In this regard, see amongst many others, the case of PDP V. SYLVA (2012) LPELR 7814 (SC) wherein Rhodes-Vivour, JSC; stated thus:-
The right to nominate or sponsor a candidate by a Political Party is a domestic right 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 elections was conducted in accordance with the parties Constitution and Guidelines. This is so because in the conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own Constitution.
The lower Court therefore cannot be said to be wrong that the 1st Respondent having glaringly shown that he did not participate in the pre-election primary of the Appellant cannot be a candidate at the said election and not being a candidate thereat, to have found the 1st Respondent not to have the locus standi in respect of all the 10 prayers in

the originating summons. This finding of the lower Court, in my considered view was sufficient for it to have struck out the suit of the 1st Respondent as the act of striking out all the 10 prayers in the originating summons, was nothing short of a finding or an acknowledgment by the lower Court that the 1st Respondent did not situate his case within the provisions of Section 87(9) of the Electoral Act (supra). A fortiori the relief granted the 1st Respondent in the instant case (whether it be described as main or alternative and I daresay, ancillary), could never be said to be in tandem with the relief(s) in respect of the cause of action created by the said Section 87(9) of the Electoral Act (supra), and which are the claim(s) or relief(s) that the lower Court can statutorily grant. In other words, it is simply in contravention of the express provisions of Section 87(9) of the Electoral Act (supra) for the lower Court to have elevated an action which the said court itself found to be a pre-primary election matter to the status of a pre-election matter in an action filed pursuant to the provisions of the Electoral Act (supra)

relating to pre-election matters.
I am aware that the lower Court seemingly relied on the pronouncement of this Court per Agim, JCA; in the case of Chukwu v. PDP (2016) LPELR 40962 (CA) and Section 11 of its Act, in escalating or elevating the pre-primary election matter it find the 1st Respondents suit to be worthy of consideration in a cause or matter instituted by virtue of, or pursuant to Section 87(9) of the Electoral Act (supra); while the 1st Respondent has sought to justify the action of the lower Court in entertaining his alternative relief by resorting to Section 6(6) of the amended 1999 Constitution of the Federal Republic of Nigeria. I must state right away that the proposition of law attributed to my learned brother, Agim, JCA; to wit: –
The alleged unlawful exclusion of an aspirant from participating in a primary election can be a valid cause for action for damages against those who were responsible for his unlawful exclusion from participating in the primaries. Such alleged unlawful exclusion cannot vest him with locus standi to sue complaining about the primary election he did not participate in;”

would appear to be an incomplete version of the pronouncement of my Lord Ngwuta, JSC; in the case of ELIGWE V. OKPOKIRI (2014) LPELR 24213 (SC) wherein what was stated goes thus: –
As a matter of fact, the expiration of the term for which the election was conducted does not the jurisdiction of the Court to determine the pre-election matter, depending on the claim before the Court. An aspirant for elective office, who contested and won the primary election but was denied the opportunity to contest in the main election for which the primaries were conducted, has a claim in damages against the person or authority that prevented him from contesting the election. The pre-election matter or appeal arising from same is not extinguished by the mere fact the election took place and the winner sworn-in xxxx.
I am of the considered view that it is clear that the originator of the concept of a cause of action being located in a candidate that was prevented from contesting an election in respect of which the said candidate emerged as a winner in a pre-election primary, made the

same applicable to a person who was excluded from an election in respect of which the pre-election primary was conducted; and not a pre-primary election of a political party. In any event the cause of action arising from such an exclusion as it were, conceivably must be based or founded in contract or implied contract and at the worst tort; hence, any such cause of action cannot be competent before the lower Court as the position of the law presently, is that the lower Court has no jurisdiction in respect of matters of simple contracts and or negligence. See the case of RAHMAN BROTHERS LTD V. NPA (2019) LPELR-46415 (SC). As for the reliance placed by the lower Court on its law, it would appear that the lower Court simply did not appreciate that its power to entertain pre-election matters having been donated to it by the Electoral Act, it cannot properly expand the statutory jurisdiction so donated to it, by resorting to its own Act to the extent that it can competently have jurisdiction over a pre-primary matter; a clear and separate cause of action from the cause of action the lower Court is invested with the jurisdiction pursuant to, or by

virtue of Section 87(9) of the Electoral Act. Lastly, in respect of Section 6 (6) of the Constitution, the 1st Respondent would appear not to know that the statutory jurisdiction vested in the lower Court by Section 87(9) of the Electoral Act, cannot be expanded by the inherent jurisdiction vested in superior Courts of record created by the said section. See in this regard, the case of YONWUREN V. MODERN SIGNS (NIG.) LTD (1985) LPELR 3529 (SC) wherein the Supreme Court stated thus: –
Nature of Inherent Jurisdiction;
To understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it first from the general jurisdiction of the Court, and next from its statutory jurisdiction.
The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the jurisdiction of the Court’ used without qualification or description: the two terms are not interchangeable, for the ‘inherent’ jurisdiction of the Court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior Court of records is, broadly speaking unrestricted and unlimited in all

matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other Court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of Justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction.
Moreover, the term ‘inherent jurisdiction of the Court’ is not used in contradistinction to the jurisdiction conferred on the Court by statute. The contrast is not between the common law jurisdiction of the Court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of Court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the Court and its statutory jurisdiction. The source of the statutory jurisdiction of the Court is of course the statute itself,

which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.” The above observation made by Jacob is interesting and useful. xxxxxxxx
Flowing from all that has been said and being of the considered view that it has been sufficiently demonstrated that the finding of the lower Court to the effect that the 1st Respondent had no locus standi to question the PDP Imo East Senatorial District Primary Election which was held on 4/10/2018 as he was not an aspirant thereat, and that he was incompetent to make all the 10 prayers set out in the originating summons, is nothing short of a finding that the said 1st Respondents suit was not situated within Section 87(9) of the Electoral Act, the said lower Court in my considered view, ought to have struck out the suit, for its clear or glaring incompetence and without countenancing the alternative relief planted therein, which in itself being in respect of a

pre-primary matter is not in tandem with any conceivable relief(s) grantable under and pursuant to the aforementioned Section 87(9) of the Electoral Act. Given, this conclusion, Appellants issues 1 and 2 are resolved in its favour.

I do not consider it expedient to venture an opinion in respect of the issue as to whether or not the 1st Respondent proved a case for the award of damages against the Appellant and or the quantum of damages awarded in his favour (i.e. Appellants issue 3). This is because, doing this might cause some problem for the 1st Respondent in the event he wants to ventilate his perceived cause of action in respect of a pre-primary election matter before another Court (apart from the Federal High Court).

In the final analysis, the instant appeal is meritorious. It succeeds and is allowed. Accordingly, the portion or part of the judgment in favour of the 1st Respondent is hereby set aside and 1st Respondents suit which the lower Court ought to have struck out due to the incompetence of the said case, is hereby struck out.

Cost in the sum of N100,000.00 is awarded the Appellant and 2nd Respondent respectively, and against the 1st Respondent.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft. the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.

I agree with his reasoning and opinion. The appeal succeeds. I also allow the appeal.

The part of the Judgment in favour of the 1st Respondent is hereby set aside.
I abide by the consequential order made as to costs.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I am privileged to have read in advance, the lead judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, I completely agree with his reasoning and conclusion.

I also abide by the order made in the said lead judgment and adopt same as mine.

Appearances:

F.A. OnuzulikeFor Appellant(s)

Frank A. Chukuka for 1st Respondent.

L.A. Njemanze for 2nd RespondentFor Respondent(s)

Appearances

F.A. OnuzulikeFor Appellant

AND

Frank A. Chukuka for 1st Respondent.

L.A. Njemanze for 2nd RespondentFor Respondent

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