ALL PROGRESSIVE CONGRESS & ANOR v. EDAFE EMAKPOR, ESQ & ANOR (2019)

ALL PROGRESSIVE CONGRESS & ANOR v. EDAFE EMAKPOR, ESQ & ANOR

(2019)LCN/13344(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2019

CA/B/243/2019

RATIO

LOCUS STANDI IN ELECTION PETITION : WHO HAS A LOCUS STANDI TO START AN ELECTION PETITION

On this vexed issue of locus standi, I have very carefully reviewed the arguments of both learned counsel. S. 87(9) of the Electoral Act (As Amended) specifically reads as follows:
Notwithstanding the provisions of this Act or rules of a political party, as 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.PER PHILOMENA MBUA EKPE, J.C.A.

LIMITATION OF ACTIONS: THE STATUTORY PERIOD WITHIN WHICH TO INSTITUTE AN ACTION MUST BE STRICTLY ADHERED TO

Let me commence by citing the Supreme Courts decision in OSUN STATE GOVERNMENT V. DALAMI NIG. LTD (2007) LPELR 2817 which provides thus:
The general principle of law is that where a statute provides for the institution of an action within a prescribed period and proceedings shall not be brought after the time prescribed by such statute.PER PHILOMENA MBUA EKPE, J.C.A.

ELECTION PETITION: WHETHER CANDIDATES CAN BE IMPOSED ON PARTIES
This singular act of the 1st Appellant has been frowned upon in several instances by the Supreme Court where party strongmen as in the instant case, impose their candidates on the party in an undemocratic manner. See HON. (MRS) DORATHY MATO V. HON. LORWASE HERMAN MEMBER & 2 ORS. (APPEAL NO. SC 733/2016 DELIVERED ON 23/6/17).PER PHILOMENA MBUA EKPE, J.C.A.

ELECTION PETITION A PERSON WHO WINS A PRIMARY ELECTION IS ALLOWED TO REAP THE FRUITS OF HIS VICTORY
I also tow the line of the Court below that a person that contests and wins a party primary election is entitled to reap the fruits of his victory.PER PHILOMENA MBUA EKPE, J.C.A.

ELECTION PETITION: POLITICAL PARTIES ARE TO AVOID INJUSTICE FROM TAKING PLACE
In general, political parties are enjoined to do the right thing at any point in time to ensure that injustice is not perpetrated at any point in time. See ATT. GEN. OF THE FEDERATION V. ATIKU ABUBAKAR (2007) ALL FWLR (Pt. 375) 403.PER PHILOMENA MBUA EKPE, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. ALL PROGRESSIVE CONGRESS (APC)
2. CHIEF HERBERT MAJEMITE Appellant(s)

AND

1. EDAFE EMAKPOR, ESQ.
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the Federal High Court, Asaba Judicial Division delivered by Hon. Justice Nnamdi O. Dimgba on the 18th day of March 2019 wherein the learned trial Judge found for and granted all the reliefs of the 1st Respondent as per his Originating summons filed on the 14th day of November 2018. The Appellants herein had filed two motions raising preliminary objections to the suit.

FACTS OF THE CASE:
The Appellants and the 1st Respondent are members of the All Progressive Congress (APC) who among other persons contested the primary elections of their party, the APC to nominate the candidate of the A.P.C. (1st Appellant) for the seat of member of Delta State House of Assembly Representing Uvwie Constituency of Delta State.

The story line of the Appellant is that he was the winner of the APC?s primary election conducted on the 5th day of October 2018 for the candidacy of Uvwie Constituency for the election into the Delta State House of Assembly. That the 1st Respondent sought orders for the 1st Appellant (APC) to substitute and the

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name of the 2nd Respondent was forwarded as the winner of the Primary election. The Appellants however filed two motions raising preliminary objections to the suit filed by the 1st Respondent at the lower Court and all were taken together and judgment delivered on the 18th day of March, 2019. The Appellants being dissatisfied with the said judgment brought this appeal.

The 1st Respondent on the other hand admitted the contest of the seat of member of the State House of Assembly Representing Uvwie Constituency between the 2nd Appellant and himself being the 1st Respondent. That at the end of the Primaries election, the 1st Respondent emerged winner with One hundred and forty-six (146) Votes. That when the 1st Respondent got wind of the fact that there were moves to substitute his name as the winner of the said primary election, he sent a petition to the 2nd Respondent (INEC)?s appeal committee. That even after he had been recognized as the winner of the said election and given INEC FORM CF001 to complete and return, the 1st Appellant (APC) still forwarded the name of the 2nd Appellant to the 2nd Respondent. On the 2nd day of November 2019 as its

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nominated candidate for the general election into the Delta State House of Assembly for Uvwie Constituency. The name and particulars of the 2nd Appellant was then published on the 9th day of November 2018. The 1st Respondent was however aggrieved by the action of the 1st Appellant (APC), the 1st Respondent instituted the action at the lower Court, obtained judgment in his favour and hence this appeal.

The Appellants filed two notice of appeal. The 1st notice of appeal was filed on the 26th of March, 2019, while the 2nd notice of appeal which the Appellants relied on was filed on the 26th of March 2019 to prosecute this appeal. From the Appellants grounds of appeal, the following issues were raised for determination:
1. Whether the 1st Respondent?s Originating summons filed on 14/11/18 was not statute barred (Ground 8).
2. Whether the 1st Respondent had the Locus Standi to institute a suit challenging the choice of Candidate of the 1st Appellant (Ground 7).
3. Whether the trial Court had the jurisdiction to entertain a suit which is not justiceable (Ground 1).
?4. Whether the trial Court?s finding on the Result (Exhibit

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?F?) that declared the 1st Respondent the winner of the 1st Appellant?s primary election for Uvwie Constituency for the election into the Delta State House of Assembly and its reliance placed on Exhibits ?J? and INEC I respectively is not perverse ? (Grounds 2, 3, 4, 5 and 6).
5. Whether the 1st Respondent proved his case from the evidence before the Court (Ground 9).

The 1st Respondent on the other hand also raised 3 issues for determination to wit:
1. Whether the 1st Respondent has the locus standi to institute the action at the Court below;
2. Whether the learned trial judge was right in holding that the action was not statute barred.
3. Whether the learned trial judge was right when he granted the reliefs sought by the 1st Respondent.

Having perused both sets of issues, I have decided to adopt and rely on the issues couched by the 1st Respondent in his amended brief of argument as they appear more apt and all embracing.
ISSUE ONE:
Whether the 1st Respondent has locus standi to institute the action at the lower Court.

Learned counsel for the Appellant first defined the term

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?Locus Standi? and submitted that under S. 87 (a) of the Electoral Act. The 1st Respondent lacks the locus to question the choice of candidate of the 1st Appellant (APC) and cause him to be replaced by 1st Respondent. He then stressed that no-one has the right to question the choice of candidate for a political party. He cited the case of ONUOHA V OKAFOR (1987) 2 SCNLR 244 @ 261.

In reply, learned counsel for the 1st Respondent submitted that the term locus standi denotes the legal capacity of a person to institute proceedings in a Court of law. He also called in aid the case of ELENDU V EKWOABA (1995) 3 NWLR (Pt. 386) 704. He further reiterated that to succeed, the action must be justiceable and secondly, there must be a dispute between the contending parties.
?
Learned counsel further contended that the 1st Respondent participated in the primaries of the 1st Appellant held on 5th day of October, 2018 for Uvwie Constituency and was declared winner but that his name was substituted for the 2nd Appellant hence not forwarded to the 3rd Respondent as the winner of the said election contrary to S.87(1), 4 (c) (i) ii, (7) and (9) of the Electoral Act (as Amended) which reads as follows:

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?87(1) A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions.
(4) – A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below ?
(c) In the case of nominations to the position of a Senatorial Candidate, House of Representatives and State House of Assembly a political party shall, where they intend to sponsor candidates ?
(i) Hold special congresses in the Senatorial District, Federal Constituency and the state Assembly Constituency respectively, with delegated voting for each of the aspirants in designated centres on specified dates;
(ii) The aspirants with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the Commission as the candidate of the party.
(7) A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its Constitution and rules the

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procedure for the democratic election of delegates to vote at the convention, congress or meeting.
(9) 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 the 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 for redress.?

Counsel then referred to the case of GILBEVE V ADDINGI (2014) 16 NWLR (Pt. 1433) 294 @ 422 ? 423 paras D ? B. where the Apex Court held that where a party abides by the Electoral Act and party guidelines to conduct its primaries and a candidate emerges as the winner of the said primaries, the party or any of its officials cannot whimsically substitute the candidate who emerges the winner of the primaries else the substituted candidate reserves the legal right to sue.

RESOLUTION OF ISSUE ONE:
In the instant case, it is clearly on record that the 1st Respondent contested the 1st Appellant?s primary election into the seat of member of the House of Assembly

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representing Uvwie Constituency of Delta State. The fact that the 2nd Appellant?s name was forwarded in his stead is the 1st Respondent?s claim that the said action is contrary to the guidelines of both the 1st Appellant and the Electoral Act. On this vexed issue of locus standi, I have very carefully reviewed the arguments of both learned counsel. S. 87(9) of the Electoral Act (As Amended) specifically reads as follows:
?Notwithstanding the provisions of this Act or rules of a political party, as 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.?
I thus throw my weight behind the reasoning of the learned jurist of the Federal High Court where he clearly stated that the said Electoral Act was amended to include the above section in order to ensure a level playing field for all members of a political party. It is therefore my humble view that the 1st Respondent herein has the locus

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standi to institute the said action in the Federal High Court. This issue is therefore resolved in favour of the 1st Respondent against the 2nd Appellant.

ISSUE TWO:
Whether the learned trial judge was right in holding that the action filed on 14-11-18 was not statute barred.

On this issue, learned counsel for the Appellant argued that the primary election complained of by the 1st Respondent took place on 5th day of October, 2018 while the 1st Respondent?s claim/suit was filed on 14th day of November, 2018 about 39 days after the said primary election thus compelling any aggrieved party to file a suit not later than 14 days from the date of the happening of the event complained of in line with Section 285 (9) of the 4th Alteration to the Constitution of 1999 as amended.
?
Learned counsel for the 1st Respondent in turn argued that the period of limitation can be determined by looking at the writ of summons and the statement of claim to ascertain the exact date the wrong in question which gave rise to the cause of action was committed. Learned counsel quoted paragraph 3 and 4 of the further affidavit in support of his originating summons

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filed on 10th day