AYOGU EZE v. MATHEW UGWUEZE & ORS
(2014)LCN/7661(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of February, 2014
CA/E/367/2012
RATIO
PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; WHAT THE COURT WILL CONSIDER IN DETERMINED A PRELIMINARY OBJECTION
The law is trite that it is the claim of the Plaintiff that the court will consider in determining a Preliminary Objection to jurisdiction. Reliance was placed on Governor of Kwara State v. Lafiagi (2005) 5 NWLR (Pt. 917) 113 at 151 and FAN vs. Oshomhole (2004) 3 NWLR (Pt 860) 305. In determining the issue of jurisdiction, the relevant things to consider are set out in the case of Usman v. Baba (2005) 3 NWLR (Pt 917) 113 and statement of defence is not one of the relevant materials for that purpose as decided in Adeyemi v. Opeyori (1976) 9 – 10 SC 31 and Egbuziem vs. Egbuziem (2005) 4 NWLR (Pt. 916) 488. per. ADZIRA GANA MSHELIA, J.C.A
COURT; JURISDICTION; THE IMPORTANCE OF JURISDICTION IN A PROCEEDINGS AND HOW THE ISSUE OF JURISDICTION OF A COURT IS RESOLVED
It is a well settled principle of law that the question of jurisdiction is a very fundamental issue regarding the competence of a court to adjudicate upon a case before it. It is a threshold issue. Any defect in competence renders the proceedings a nullity. See Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 and Madukolu v. Nkemdilim (1962) 1 ALL NLR (Pt 4) 587, 1962 2 SCNLR 341. Jurisdiction of a court to entertain a suit is resolved by scrupulous examination of the Writ of Summons, the Statement of Claim and the reliefs claimed. The claim is usually critically examined to ascertain whether or not it comes within the purview of the jurisdiction conferred upon the court. Where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject matter of dispute or that the claim, in reality, cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish same in determining whether the court has jurisdiction or not. per. ADZIRA GANA MSHELIA, J.C.A
COURT: JURISDICTION; WHETHER THE COURT HAS JURISDICTION TO DECIDE FOR A POLITICAL PARTY WHO SHOULD BE CANDIDATE FOR ELECTION AND WHETHER NOMINATION OR SPONSORSHIP OF A CANDIDATE FOR ELECTION IS A POLITICAL MATTER SOLELY WITHIN THE DISCRETION OF THE PARTY
As to whether the issue of nomination by a political party of a person as its candidate for an election is justiceable, it is settled by a long line of judicial decisions that the decision as to who should be nominated or sponsored by a political party as its candidate in a general election, is the domestic affair of the political party and the courts have no jurisdiction to decide for a political party who should be a candidate for election.Nomination or sponsorship of a candidate for election is 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. See Onuoha v. Okaafor (1983) 2 SCNLR 244: Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310; Emenike v. Okadigbo & Ors (2012) LPELR 9338 (SC). However, by virtue of Section 87(9) of the Electoral Act 2010 (as amended), 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 to examine if the conduct of the primary election was conducted in accordance with the party’s constitution and guidelines.
An aggrieved aspirant therefore has right to seek redress in the Federal High Court or High Court of a State or FCT. This is so because in the conduct of its primaries, the courts will never allow a political party to act arbitrary or as it likes. A political party must obey its constitution.
See Hope Uzodinma v. Senator Osita Izenaso (2010) 5 (pt. 1) MJSC 27; (2011) 17 NWLR (pt 1275) 30.
The jurisdiction is very narrow and strictly limited only to the extent prescribed in S. 87(9) of the Electoral Act. The only question or complain the court can entertain is that the provisions of the Electoral Act and the guidelines of the party has not been complied with in the election or nomination of a candidate. See PDP & Anor. v. Sylva & Ors. (2012) 13 NWLR (pt 1316) 85. per. ADZIRA GANA MSHELIA, J.C.A
ELECTION PETITION: ASPIRANT; WHO IS AN ASPIRANT ACCORDING TO THE ELECTORAL ACT
In order to answer this question, it is necessary to determine who an aspirant is, going by the provisions of S. 87(9) of the Electoral Act 2010 as amended. The apex court in PDP v. Sylva (supra) at page 126 defined aspirant thus:-
(a) An aspirant is a person with a strong desire to achieve a position of importance or to win a competition.
(b) An spirant is a person who contested the primaries.
(c) An aspirant is a candidate in the primaries.
Section 156 of the Electoral Act also defined aspirant as a person who aspires or seeks or strives to contest an election to a political office. It is obvious from the above definition that obtaining nomination form, being screened and cleared provisionally and other pre-primary steps as argued by counsel do not combine to make a member of a political party an aspirant within the meaning of S. 87(9) of the Electoral Act. It is the participation in the contest/selection that confirms the status. The scores distinguish candidate from mere aspirant. Section 87(9) of the Electoral Act confers jurisdiction on the courts to hear complains from a candidate who participated at his party’s primaries and complains about the conduct of the party’s primaries. In other words, only dissatisfied contestant at the primary could complain about the conduct of the primaries.
In PDP v. Sylva (2012) 13 NWLR (Pt 1316) 85 at 148 paras. C – D the Supreme Court in construing Section 87 as a whole stated thus:-
“For any member of a political party to question any results of party primaries conducted under the Act of 2010 (as amended), he must bring himself within the ambit of an aspirant i.e. a member who has participated in the said party primaries otherwise his action is not maintainable for want of locus standi. He must be a candidate duly screened by the party for its primaries and is aggrieved in one way or another by the process.” per. ADZIRA GANA MSHELIA, J.C.A
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria
Between
AYOGU EZEAppellant(s)
AND
1. MATHEW UGWUEZE
2. JOSEPH UGWUOKE
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): The appellant herein, as plaintiff commenced proceedings by a writ of summons issued on 1.04.11 at the Federal High Court, Enugu Judicial Division. The claims of the appellant against the respondents as set out in paragraph 70 of the statement of claim appearing at pages 26 – 27 of the Record are as follows:-
“1. A DECLARATION that the willful failure, refusal and neglect of the 3rd defendant to conduct primary for the election of Peoples Democratic Party’s Candidate for the office of member representing Igbo-Eze South State Constituency is a violation of the 3rd Defendant’s Electoral Guidelines for Primary Elections 2010 and Amended Electoral Act, 2010.
2. A DECLARATION that the 3rd defendant’s purported submission of the name of the 1st defendant as the Peoples Democratic Party’s Candidate for Igbo-Eze South State Constituency is a violation of the 3rd defendant’s Electoral Guidelines for Primary Election 2010 and Amended Electoral Act., 2010.
3. AN ORDER of the Honourable Court setting aside the Certificate of Return purportedly issued to the 1st defendant by the 3rd defendant as the 3rd Defendant’s candidate for the office of Member representing Igbo-Eze South State Constituency for being unlawful and on the ground that the 3rd defendant failed refused and neglected to conduct the primary election.
4. AN ORDER of perpetual injunction restraining the 4th defendant from recognising or registering the 1st defendant as the Peoples Democratic Party’s Candidate for the Office of Member representing Igbo-Eze South State Constituency Election Scheduled for April 16, 2011.
5. AN ORDER of perpetual injunction restraining the 1st and 2nd defendants from parading, campaigning, contesting, holding out themselves or howsoever as peoples democratic party Candidate for the Office of member representing Igbo-Eze State Constituency election schedule for April 16, 2011.
6. A DECLARATION that the Plaintiff is entitled to be the peoples democratic Party’s Candidate for the Office of Member representing Igbo-Eze South State Constituency Election Scheduled for April 16, 2011.
7. AN ORDER directing the 4th defendant to issue Certificate of Return to the 1st plaintiff as the Peoples Democratic Party’s Candidate for the office of Member representing Igbo-Eze South State Constituency.”
The 1st defendant entered appearance on 10.5.2011. While the 3rd defendant entered appearance on 17.5.2011. But none of the defendants filed any statement of defence to the claims of the plaintiff. On 17.5.2011, the 3rd defendant filed a motion on notice praying for the following:-
1. AN ORDER striking out the 2nd – 335th plaintiffs as plaintiffs in this suit.
2. Dismissing the suit in limine.
The grounds for the application as set out on the face of the motion paper are:-
(a) The named plaintiffs not being aspirants, lack the locus standi to complain of a breach of the Electoral Act or the guideline of Political Party, in the selection or nomination of a candidate for Election.
(b) The Federal High Court lacks the jurisdiction to entertain a proceeding questioning the validity of an election and/or a return at an Election or in the alternative;
(c) This suit raises questions which are academic, and devoid of any life issue, for the determination of the Honourable Court.
In opposition to the said motion on notice filed on 17.5.2011, the plaintiff filed his affidavit in opposition on 4.7.2011 and a written address.
The 1st defendant on 5.7.2011 also filed a similar motion on notice praying for the following orders:-
1. An order of court striking out the name of the 2nd to 335th plaintiffs who have no business in this suit.
2. An order of court dismissing the suit for lack of jurisdiction.
The grounds for the application are set out on the face of the motion paper.
Plaintiffs filed an affidavit in opposition as well as a written address.
The 3rd and 1st defendants argued their objection. The plaintiff responded to same. In a considered ruling delivered on 20.7.2012, the learned trial judge Agishi J. upheld the objection and struck out the suit. See pages 449 – 467 of the record.
Dissatisfied with the part of the ruling declining jurisdiction, the appellant by a Notice of Appeal dated 23.7.2012 and filed on 25.7.2012 containing three (3) grounds of appeal, appealed against the ruling of the lower court to this court.
Appellant noted in his brief of argument that he is not appealing against the part of the ruling that 2nd – 335th plaintiffs have no locus standi.
Briefs of argument were filed and exchanged by parties. When the appeal came up for hearing, Opara Esq., adopted the appellant’s brief settled by Charles A. Menkiti Esq., as well as the reply brief and urged the court to allow the appeal. Learned counsel for the 1st respondent Maduka Esq., adopted 3rd respondent’s brief of argument as well as the respondent’s notice deemed filed on 16.12.13 on behalf of Chief Olusola Oke Esq., and urged the court to dismiss the appeal. 1st respondent did not file any brief of argument but aligned himself with the position taken by the 3rd respondent. 2nd and 4th respondents did not file any brief of argument.
At the hearing of the appeal on 16.12.13, this court invited the parties to address it on whether Section 141 of the Electoral Act 2010 (as amended) is applicable to the case at hand. Learned counsel for the appellant after adopting appellant’s Brief orally submitted that S. 141 does not refer to regular courts but refers to Election Petition Tribunal.
That the lower court is not an Election Petition Tribunal, within the contemplation of S. 87(9) of the Electoral Act 2010 (as amended).
Reliance was placed on National Examinations Council (NECO) vs. Sunday Ojo Tokodi (2011) ALL FWLLR (Pt. 574) 105 paras. B – D: Attorney General & 2 Ors v. Alhaji Atiku Abubakar & 2 Ors (2007) ALL FWLR (Pt. 389) 1264 at 1298 -paras. B – C. Counsel urged the court to hold that S.87 (9) overrides the provisions of S. 141 of the Electoral Act. That this appeal is different from all other Pre-election matters. Appellant throughout alleged violation of Electoral Act. He urged the court to allow the appeal.
In the brief of argument dated and filed on 22.11.12, appellant distilled two issues for determination as follows:-
1. Whether the trial court has jurisdiction to hear and determine who is the People Democratic Party (sic) Candidate for Igbo-Eze South State Constituency in the April, 2011 general election having regards to the provisions of the Electoral Act, 2010 (as amended).
2. Whether the decision of the Supreme Court in Senator Y.G. Lado & Ors. v. C.P.C. (2011) 12 SC (Pt. 111) page 113 is applicable to this case.
The 3rd respondent’s brief of argument filed on 28-05-13 though deemed filed on 16-12-13 contained sole issue for determination:-
“Whether the learned trial judge was not right in holding that the Federal High Court lacked the jurisdiction to hear and determine the appellant’s case and the reliefs sought and the prevailing authorities.”
On 28-05-13, 3rd respondent filed respondent’s Notice of Intention to contend that the ruling be affirmed on grounds other than those relied on by the court below but same was deemed properly filed on 16.12.13.
The grounds for the notice are as follows:-
1. The appellant who did not participate in primary election sought to be set aside by his suit before the trial court, lacks the locus standi to question the conduct and outcome of the said primary election under the provisions of Section 87(9) of the Electoral Act 2010 (as amended) as decided by the Supreme Court in the case of PDP vs. Syliva (2012) FWLR (pt 637) 606.
2. The appellant’s claim before the lower court is outside the limited jurisdiction conferred on the trial court by virtue of Section 87(9) of the Electoral Act 2010 (as amended) as decided by the Supreme Court in the case of Lado vs. C.P.C. (2011) 12 SC (Pt. 111) page 113.
I have examined the issues formulated by parties. Appellant’s issue 1 is similar to the sole issue raised by the 3rd respondent in its brief of argument. I will therefore adopt the issues raised by the appellant in determining this appeal.
Issue One is distilled from ground one and two contained in the Notice of Appeal. Learned counsel for the appellant commenced his argument by stating that the law is well settled that it is the claims of the plaintiff that determines the jurisdiction of the trial court. Counsel relied on the cases of Anigboro v. Sea Truncks Nigeria Ltd. (1995) 6 NWLR (Pt 399) 43 and Adeyemi v. Opeyoni (1976) 9 – 10 SC 31. That where an action contains different claims, the court has to examine each of the claims for the purpose of determining whether the court has jurisdiction to entertain such different claims. Reliance was placed on Elf-Oil Nigerian Limited v. Oyo State Board of Internal Revenue (2008) F.W.L.R. (Part 138) 1359 at 1376 para. H: Nwadike v. Administrator-General of Anambra State (1996) 7 NWLR (Pt. 462) 315 and Ports and Cargo Hardling Services Company Limited & 3 Ors. v. Migro Nigeria Limited & Anor (2009) 11 NWLR (Pt. 1153) 611 para. A.
Counsel referred to the reliefs claimed by the appellant at the lower court in paragraphs 70(1), (2) and (6) of the statement of claim. It was contended that the reliefs are based on the provisions of the Electoral Act, 2010 (as amended). That reliefs 3, 4, 5 and 7 are injunctive and consequential reliefs which predicated upon the success of the declaratory reliefs.
Learned counsel referred to Section 87(1), (2), (4) (c) (i), (6)(7)(9) of the Electoral Act 2010 (as amended) and Article 12.72, 12.73 and 17.2. of the PDP constitution which outlined the procedure for the conduct of primaries for selecting candidates for House of Representatives. Reference was also made to clauses 36(1), 37, 41, 43 and 45 of the PDP Electoral Guidelines for Procedure for Nomination and conduct of the Primary Election to the Office of House of Assembly. That a combined reading of the above quoted provisions reveals that it is the National Executive Committee of the PDP that is responsible for the conduct of the party’s State Assembly Primaries.
Learned counsel further submitted that the appellant in paragraphs 47, 48(a) and 66 of the statement of claim averred that the 3rd respondent (Peoples Democratic Party) failed to conduct primaries whatever for nominating a candidate for Igbo-Eze South State Constituency. That in law, the State Assembly Primary Election conducted by the State Chapter PDP is a nullity. Reliance was placed on Prince John Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors. (2012) 7 SC (Pt.1) page 11 at 41 lines 10 – 130. The law was succinctly stated by Rhodes Vivour, JSC that a primary conducted by the State Chapter of the PDP is a nullity. That S. 87(9) of the Electoral Act 2010 (as amended) empowers the appellant who was a candidate aspirant at the primaries, to come to court to complain about the purported primaries. Counsel referred to the receipts for purchase of Expression of Interest form, Nomination form and Clearance Certificate. According to learned counsel, the complaint of the appellant, who was an aspirant and candidate to contest the post of member Igbo-Eze South Constituency, is in respect of the nomination of the candidate for the said position by the 3rd respondent. Reference was made to the case of Prince John Okechukwu Emeka vs. Lady Margery Okadigbo (supra) at pages 62 – 63 lines 35, 1 – 35, wherein Mohammed JSC elucidated the part on jurisdiction of court under Section 87(9) of the Electoral Act, 2010 (as amended).
Furthermore, learned counsel submitted that the 1st and 2nd respondents violated the Electoral Act, PDP Constitution and Electoral Guidelines as to the mode and venue of the purported primary election from which they emerged. The case of Prince John Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors. (supra) was relied upon particularly the observation of Adekeye J.S.C. at page 68 lines 1 – 20 of the report. Counsel argued that the 1st and 2nd respondents did not join issues with the appellant in respect of non-compliance with the procedure for nomination of a candidate as provided in Clause 36(1) (a), (b), (c) of the Electoral Guidelines. According to counsel, the non-compliance can be challenged in court. The result of the successful challenge is that the 1st and 2nd respondents were not even aspirants, ab initio having not complied with the nomination procedure. Reliance was placed on Ibrahim Musa Arugungun & Anor vs. Umar Abubakar T. Argungu & 4 ors. (2010) ALL F.W.L.R. (Pt. 510) 681 at page 697. That this court has powers to look at the nomination processes of the aspirants and political parties. That the courts can declare which party’s process is right. See Prince John Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors (supra) at page 69 lines 5 – 10 per Adekeye, J.S.C.
It was also argued that the issues raised by the appellant’s statement of claim in respect of nomination and selection of 3rd respondent’s candidate for member Igbo-Eze South State Constituency in the April, 2011 election falls under pre-election matters. The cases of Senator Ifeanyi Ararume v. Independent National Electoral Commission & 2 Ors (2207) 9 NWLR (pt. 1038) 127 @ 103 and Olofu & 2 Ors vs. Itodo (2010) 12 SC (Pt. 1) 163 at 191 were relied upon by counsel to show that regular High Courts have jurisdiction to handle pre-election matters. Counsel also contended that there is nowhere in the pleadings and complaint of the appellant that relates to the result of the April 2011 general election. The law is that a court is bound by the case put forward by the parties. See Mathew Akpelu vs. Pauline Chukwu & 4 Ors. (2005) ALL F.W.L.R. (pt. 269) 1852 at 1877 paras. C – E. That Pre-Election matters cannot translate to Post-Election matters merely because the election has been held. Reliance was placed on Honourable Gozie Agbokoba v. Independent National Electoral Commission & 2 Ors. 18 NWLR (Pt. 1119) 489 at 549 paras. D – F.
Learned counsel submitted that the issue of selection or nomination of a candidate by a political party is a very serious matter and cannot be a mere academic exercise. In support of this contention, counsel cited the case of Hon. Gabriel Yususa Olofu & 2 Ors. v. Mr. Michael Adetoru Itodo (supra) at page 205 per Adekeye JSC and Engr. Charles Ugwu & Anor vs. Senator Ifeanyi Ararume & Ors. (supra) page 305 at 449 paras C – E- per Tobi J.S.C.
Counsel finally urged the court to resolve issue No. 1 in favour of the appellant and hold that the lower court has jurisdiction to hear and determine who is the Peoples Democratic Party Candidate for Igbo-Eze South State Constituency for April, 2011 general election having regard to the provisions of the Electoral Act 2010 (as amended).
As earlier stated, 1st, 2nd and 4th respondents did not file any brief of argument.
The 3rd respondent in response raised one issue which is similar to issue No. 1 raised by the appellant in his brief of argument. The issue is whether the learned trial judge was not right in holding that the Federal High Court lacked the jurisdiction to hear and determine the appellant’s case having regard to the facts of the case and the reliefs sought and the prevailing authorities.
While arguing this issue, learned counsel for the 3rd respondent submitted that it is indisputable that it is the claim of the plaintiffs that determine the jurisdiction of the court to try a case. See Ikine v. Edgenode (2001) 18 NWLR (Pt. 745) 499.
According to the 3rd respondent, appellant’s right to maintain this suit after the names of 334 other plaintiffs had been struck out is predicated on the following facts in the pleading:-
(i) Appellant and others collected, completed and returned the Expression of Interest Form and Nomination Form for Igbo-Eze South Enugu State Constituency (Paragraph 37 of the statement of claim page 21 of the record).
(ii) The Appellant and others were issued Clearance Certificate (paragraph 38 of the statement of claim at page 22 of the Record).
Counsel submitted that it is the case of the appellant that he did not take part in any primary election organized by the National Executive Committee of the 3rd respondent. Appellant pleaded specifically in paragraph 58 of the Statement of Claim at page 25 of the record thus:-
“The Plaintiff stated that no primary election was conducted in which the plaintiffs participated or voted for any aspirant.” Counsel argued that a careful reading of paragraphs 48(a) and 55(b) of the statement of claim would show that there was a primary election which the appellant craftily desired to challenge by this action. That despite the strenuous efforts to conceal this fact in the pleadings, the above was unguidedly volunteered.
For the appellant to be able to aspire for the decision of the Supreme Court in Emeka v. Okadigbo & 4 Ors. (1968) (Pt. 1) page 1 at 40 he had to come out of his shell/hideout to openly add that at least a primary election was conducted when he submitted at page 11, last paragraph of the appellant’s brief of argument:
“In law, that primary election conducted by the state chapter, of the PDP is nullity.”
According to the 3rd respondent, by appellant’s relief 2 in the writ of summons, appellant unwittingly admitted that the name of the 1st respondent was submitted to the 4th respondent by the 3rd respondent.
This represents an approval or endorsement of the nomination of the 1st Respondent by the 3rd Respondent.
Learned counsel further submitted that since the case of the appellant as set out in the writ and statement of claim, is that he did not participate in any primary election organised by the 3rd respondent, the question that arises, is whether the appellant who did not participate in any primary election organised by his party is an aspirant within the meaning of Section 87(9) of the Electoral Act 2010 (as amended).
Counsel argued that obtaining nomination form, being screened and cleared provisionally and other pre-primary steps do not combine to make a member of a party an aspirant within the meaning of S. 87 of the Electoral Act. That it is the participation in the contest/election that confirms such status. The scores distinguish candidate from mere aspirants. The person who scored the highest becomes the candidate while those with lesser or zero score acquire the status of aspirant only.
The point was laid to rest by the Supreme Court in the case of PDP v. Sylva (supra) at page 125. It was the contention of learned counsel that a party member only acquires locus standi to question the result of the primary election of his party if after being screened and cleared, he actually participated in the primaries by contesting as a candidate. The law is trite that it is the claim of the Plaintiff that the court will consider in determining a Preliminary Objection to jurisdiction. Reliance was placed on Governor of Kwara State v. Lafiagi (2005) 5 NWLR (Pt. 917) 113 at 151 and FAN vs. Oshomhole (2004) 3 NWLR (Pt 860) 305. In determining the issue of jurisdiction, the relevant things to consider are set out in the case of Usman v. Baba (2005) 3 NWLR (Pt 917) 113 and statement of defence is not one of the relevant materials for that purpose as decided in Adeyemi v. Opeyori (1976) 9 – 10 SC 31 and Egbuziem vs. Egbuziem (2005) 4 NWLR (Pt. 916) 488.
As for the 3rd respondent, a case has firmly been made out that all the infraction informing the institution of this suit are pre-primary election affairs of the 3rd respondent and since appellant did not take part in the Primary Election of 20/01/2011, this court has no jurisdiction to entertain appellant’s claims premised on pre-primary affairs of the 3rd respondent. Appellant who admittedly did not participate in the primaries lacks the locus standi to maintain an action against the result.
See Lado v. CPC (2012) ALL FWLR (pt. 607) 598 at 623 (G – H): Uti v. Omoyiwe (1991) SCNJ 25 at 49 and Okoro v. Egbiwh (2006) 15 NWLR (Pt. 1001) 1 at 23 – 24. That a court without jurisdiction cannot, under the canopy of interest of justice, assume jurisdiction. See Action Congress v. INEC (2007) 18 NWLR (pt 1065) 50. A trial without jurisdiction is also a nullity. See P.E. LTD. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt 244) 675 at 693. According to counsel, S.87 (9) of the Electoral Act is a unique provision vesting the High Court with a very narrow jurisdiction to determine complaints from an aspirant against the conduct of the primary election of a political party. That cases on the conduct of the general election under the Electoral Act cannot be a real guide to the interpretation of S. 87(9) of the Electoral Act. In the instant case, the case is made worse as all the cases cited by the appellant are not based on the consideration of S. 87(9) but pre-dated the enactment of the Section. Counsel contended that appellate courts in a plethora of cases had deprecated the practice of applying willy nilly the principles established in a precedent to another case outside the milieu of facts informing the decision. Reliance was placed on Okafor v. Nnaife (1987) 9 – 10 SCNJ 63 at 70 and Adekoge Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 266. That under the doctrine of stare decisis, the appellant cannot rightly urge this court to give a meaning of “aspirant” different from the one already given by the Supreme Court or expand the scope of the word to cover a party member allegedly screened and cleared even though he did not participate in primary election. That will amount to reviewing or rewriting the judgment of the Supreme Court counsel urged. Such invitation was deprecated by the Supreme Court, in the case of Dalhatu vs. Turaki (2003) ALL FWLR (pt 174) 13. That the learned trial judge rightly did not honour the invitation by the appellant to evolve a definition of the word “aspirant” employed in S.87(9) of the Electoral Act (as emended) which is different in substance and scope from the one given by the Supreme Court in PDP v. Sylva (supra). The law remains that nomination of a candidate for election by a political party remains its exclusive internal affairs over which no court has jurisdiction except instances that are brought within the frame work of S. 87(9) of the Electoral Act. Cited in support are PDP v. Sylva (supra) Lado v. CPC (supra) Dalhatu v. Turaki (supra) and Emeka v. Okadigbo (supra) Counsel submitted that appellant had failed to show that a primary election of the 3rd respondent in which he participated held. Appellant does not qualify as an aspirant within the meaning of S. 87(9) of the Electoral Act 2010. It is settled that a point of jurisdiction can be raised at any stage of the proceedings even on appeal for the first time.
Reliance was placed on Min. of Works & Housing v. Shittu (2007) 16 NWLR (pt 1060) 351. That the case was struck out by the trial court for lack of jurisdiction on the part of the court albeit on a narrow pedestal. That the issue of appellant’s locus standi is a jurisdictional issue as such the trial court’s decision declining jurisdiction cannot be faulted.
Counsel argued that the trial court specifically found that it has no jurisdiction to determine the live issue in the claim as revealed in reliefs 3 and 7 of the said claim. He urged the court to affirm the said finding of the trial court.
Let me now resolve issue No. 1. It is a well settled principle of law that the question of jurisdiction is a very fundamental issue regarding the competence of a court to adjudicate upon a case before it. It is a threshold issue. Any defect in competence renders the proceedings a nullity. See Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508 and Madukolu v. Nkemdilim (1962) 1 ALL NLR (Pt 4) 587, 1962 2 SCNLR 341. Jurisdiction of a court to entertain a suit is resolved by scrupulous examination of the Writ of Summons, the Statement of Claim and the reliefs claimed. The claim is usually critically examined to ascertain whether or not it comes within the purview of the jurisdiction conferred upon the court. Where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject matter of dispute or that the claim, in reality, cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish same in determining whether the court has jurisdiction or not.
The question becomes, from the issues joined in the pleadings, does the court have jurisdiction? See Lado v. C.P.C. (2012) ALL FWLR (Pt. 607) 598; Adeyemi v. Opeyori (1976) 9 – 10 SC 31, Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284: Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt 117) 517 and Abdulhamaid v. Akar (2006) 13 NWLR (pt 996) 127 at 144 paras. E – D.
Where the action contains different claims – the court has to examine each of the claims for the purpose of determining whether a court has jurisdiction to entertain such different claims. See Elf Oil Nigeria Ltd. v. Oyo State Board of Internal Revenue (2008) FWLR (pt. 138) 1359 at 1367. In Ports and Cargo Handling Services Company Limited & Ors. v. MIGFO Nigeria Limited & Anor (2009) 11 NWLR (Pt. 1153) 611 para A, Nwodo J.C.A. (of blessed memory) held thus:-
“The first fundamental step to the determination of whether the Federal High Court is vested with subject matter jurisdiction in a matter is to identify the cause of action and the reliefs sought from the court.”
The cause for the suit at the trial court is that the appellant herein alleges that he was issued clearance certificate to take part in the primary election but that 3rd respondent (Peoples Democratic Party) failed to conduct any primaries whatsoever for nominating a candidate for Igbo-Eze South State Constituency. See paragraphs 37, 47, 48(a), 58 and 66 of the Statement of Claim. According to the appellant, this is a clear violation of the Electoral Act 2010 (as amended). That Section 87(9) of the Electoral Act 2010 (as amended) empowers the appellant who was a candidate/aspirant at the primaries to come to court to complain about the purported primaries. For clarity, Section 87(9) read as follows:-
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
The subject matter of the jurisdiction to be exercised under this provision is non-compliance with the Electoral Act and Political Party guidelines in the Election or nomination of a candidate of a political party for an election. Appellant also alleged that the 1st and 2nd respondents further violated the Electoral Act, PDP constitution and Electoral Guidelines as to the mode and venue of the purported primary elections from which they emerged. It was contended by the appellant that 1st and 2nd respondents did not join issues with the appellant in respect of non-compliance with the procedure for nomination of a candidate as provided in Clause 36 (1)(a)(b)(c) of the Electoral Guidelines. Therefore, the effect of failure to comply with the procedure for nomination as laid down in the Electoral Guidelines can be challenged in the appropriate court.
The reliefs claimed by the appellant are clearly set out in the early part of this judgment. As earlier stated the pleadings of the appellant revealed that his cause of action really is the failure of the 3rd respondent to conduct primaries to nominate its candidates for various elections.
See reliefs 1, 2 and 3 in particular.
As to whether the issue of nomination by a political party of a person as its candidate for an election is justiceable, it is settled by a long line of judicial decisions that the decision as to who should be nominated or sponsored by a political party as its candidate in a general election, is the domestic affair of the political party and the courts have no jurisdiction to decide for a political party who should be a candidate for election.Nomination or sponsorship of a candidate for election is 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. See Onuoha v. Okaafor (1983) 2 SCNLR 244: Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310; Emenike v. Okadigbo & Ors (2012) LPELR 9338 (SC). However, by virtue of Section 87(9) of the Electoral Act 2010 (as amended), 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 to examine if the conduct of the primary election was conducted in accordance with the party’s constitution and guidelines.
An aggrieved aspirant therefore has right to seek redress in the Federal High Court or High Court of a State or FCT. This is so because in the conduct of its primaries, the courts will never allow a political party to act arbitrary or as it likes. A political party must obey its constitution.
See Hope Uzodinma v. Senator Osita Izenaso (2010) 5 (pt. 1) MJSC 27; (2011) 17 NWLR (pt 1275) 30.
The jurisdiction is very narrow and strictly limited only to the extent prescribed in S. 87(9) of the Electoral Act. The only question or complain the court can entertain is that the provisions of the Electoral Act and the guidelines of the party has not been complied with in the election or nomination of a candidate. See PDP & Anor. v. Sylva & Ors. (2012) 13 NWLR (pt 1316) 85.
As earlier stated, the grouse of the appellant is that 3rd respondent failed to conduct primaries for its candidates. The same appellant in his averment in paragraphs 55(6) of the statement of claim showed that primary election was conducted by the state chapter of the PDP.
Appellant also admitted in his relief 2 that the name of the 1st respondent was submitted to the 4th respondent by the 3rd respondent. This showed that appellant acknowledged the nomination of the 1st respondent by the 3rd respondent. The question now is since appellant did not participate in any primary election organized by the 3rd respondent or his party can he be classified as an aspirant to entitle him to complain about the conduct of the primaries?
In order to answer this question, it is necessary to determine who an aspirant is, going by the provisions of S. 87(9) of the Electoral Act 2010 as amended. The apex court in PDP v. Sylva (supra) at page 126 defined aspirant thus:-
(a) An aspirant is a person with a strong desire to achieve a position of importance or to win a competition.
(b) An spirant is a person who contested the primaries.
(c) An aspirant is a candidate in the primaries.
Section 156 of the Electoral Act also defined aspirant as a person who aspires or seeks or strives to contest an election to a political office. It is obvious from the above definition that obtaining nomination form, being screened and cleared provisionally and other pre-primary steps as argued by counsel do not combine to make a member of a political party an aspirant within the meaning of S. 87(9) of the Electoral Act. It is the participation in the contest/selection that confirms the status. The scores distinguish candidate from mere aspirant. Section 87(9) of the Electoral Act confers jurisdiction on the courts to hear complains from a candidate who participated at his party’s primaries and complains about the conduct of the party’s primaries. In other words, only dissatisfied contestant at the primary could complain about the conduct of the primaries.
In PDP v. Sylva (2012) 13 NWLR (Pt 1316) 85 at 148 paras. C – D the Supreme Court in construing Section 87 as a whole stated thus:-
“For any member of a political party to question any results of party primaries conducted under the Act of 2010 (as amended), he must bring himself within the ambit of an aspirant i.e. a member who has participated in the said party primaries otherwise his action is not maintainable for want of locus standi. He must be a candidate duly screened by the party for its primaries and is aggrieved in one way or another by the process.”
The court further held that the 1st respondent has failed to bring himself within the ambit of section 87 (9) (supra). That 1st respondent has failed to show that he is an aspirant in the primary election immediately proceeding the April 2012 Governorship Election. Having not taken part in the process, his case falls outside primary election matters as contemplated under section 87(9) of the Electoral Act. The action was struck out for lack of standing to maintain the same by the appellant.
From the observations noted above, I agree with the submission of 3rd respondent’s counsel that the case of PDP v. Sylva (supra) is relevant in resolving this issue as it is instructive. The facts in PDP v. Sylva (supra) and the case at hand are substantially the same as both parties did not participate in the primary election that led to the nomination or selection of a party candidate for the general election. The appellant who was not a candidate and who did not participate in the contest in the primary election conducted by the 3rd respondent on 20/01/2011 that produced 1st respondent as the winner, is certainly not clothed with any rights to approach any court for redress on the very clear provisions of the law i.e. S. 87(9) of the Electoral Act, 2010 (as amended). Having not participated in the process Appellants case in the instant matter falls outside primary election matters contemplated under S. 87(9) of the Electoral Act. As rightly submitted by 3rd respondent’s counsel under the doctrine of stare decisis, the Appellant cannot urge this court to give a meaning of “aspirant” different from the one already given by the Supreme Court or expand the scope of the word to cover a party member allegedly screened and cleared even though he did not participate in the primary election. Except instances that are brought within the framework of section 87(9) of the Electoral Act, the law remains that nomination of a candidate for election by a political party remains its exclusive internal affairs over which no court has jurisdiction. See PDP v. Sylva (supra) Dalhatu v. Turaki (supra) and Emeka v. Okadigbo (supra).
In Emeka v. Okadigbo (supra), the Supreme Court held that a person who was not a candidate/aspirant at the primaries cannot come to court to complain about the conduct of the primaries. Appellant did not qualify as an aspirant within the meaning of S. 87(9) of the Electoral Act as such he has no locus standi to maintain an action against the Respondents. Section 87(9) is therefore inapplicable. Since the appellant has no locus standi to question the conduct of the primary election under S. 87(9) of the Electoral Act (as amended), Federal High Court lacked the jurisdiction to inquire into the complaint of non-compliance with the provisions of the Electoral Act raised by the appellant. Issue one is therefore resolved in favour of the 3rd respondent.
The second issue is whether the decision of the Supreme Court in Senator Y.G. Lado & Ors vs. C.P.C. (2011) 92 SC (pt. 111) 113 is applicable to this case. It is submitted by appellant’s counsel that there are clear distinguishing factors between the present case and the Lado v. C.P.C. case. First, this case involves the constitution of the Peoples Democratic Party, 2009 (as amended) and the Electoral Guidelines for primary Elections 2010 of the Peoples Democratic Parry. That in Lado’s case the issues decided in that case emanated from constitution of Congress for Progressive Change (C.P.C.). That the provisions of the constitution of the Peoples Democratic Party and Constitution for Progressive Change (C.P.C.) are not impari materia. Reliance was placed on the Supreme Court case of Emeka v. Okadigbo & Ors. (2012) 7 S.C. (Pt. 1) 1 at 54 lines 23 – 31 per Rhodes – Vivor JSC. Secondly, counsel argued that this case involves a situation where the National Executive Committee of PDP failed to conduct primary election for aspirants seeking to be candidates of P.D.P. for member Igbo-Eze South State Constituency. It also involves a situation where two different chapters of Enugu State P.D.P., purportedly conducted primaries for the 2nd respondent on 11/1/2011 and another primary election for the 1st respondent on 20/1/2011 and issued photocopies of result sheets to them.
That in Lado’s case there were two parallel primaries conducted by the National Executive Committee of C.P.C. on 13/2/2011 and 15/1/2011. The third distinguishing factor pointed out by learned counsel is that the procedure for nomination in P.D.P. is also different from the procedure for nomination in C.P.C. Reliance was placed on Emeka v. Okadigbo & Ors. (supra) page 69 lines 20 – 25 per Adekeye J.S.C. The fourth distinguishing factor pointed out is that in Lado v. C.P.C., the primaries conducted by the National Executive Committee were conducted at the venue approved by the constitution of C.P.C. In urging this court to hold that Lado’s case is not applicable to oust the jurisdiction of the Lower Court, counsel referred to the Supreme Court case of Prince John Okechukwu Emeka v. Lady Margery Okadigbo (supra) page 54 lines 5 – 15 per Rhodes – Vivour wherein he summed up distinguishing facts of cases thus:-
“Facts have views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them. See Alibion Construction Ltd. v. R.A.O. Inv. & PROD LTD, (1992) 1 NWLR (Pt. 219) 583”.
In response, learned counsel for the 3rd respondent submitted that it is now settled law that in determining whether or not court has jurisdiction to entertain a suit brought pursuant to Section 87(9) of the Electoral Act 2010 (as amended), the court is at liberty, apart from the reliefs sought, to consider the pleadings and evidence adduced to see if the issues ventilated and calling for resolution are in fact within the jurisdiction of the court conferred by the said section. See Lado & Ors. v. C.P.C. & Ors (2012) ALL FWLR (Pt. 607) 598 at 627 – 628.
Learned counsel submitted that, it is beyond dispute that from the summary of the appellant’s claim before the trial court, the appellant was not challenging the conduct of the 3rd respondent’s primary election which produced the 1st respondent but rather he is alleging that no primary election was held. Counsel submitted that such complaint is outside the narrow compass of the jurisdiction on the trial court by virtue of S. 87(9) of the Electoral Act 2010 (as amended). Reference was made to the case of Lado v. C.P.C. supra page 623. That the reasoning of the trial court declining jurisdiction to entertain the appellant’s suit was further strengthened by the decision of the Supreme Court in P.D.P v. Sylva (supra). According to counsel it is not in dispute in this appeal that the appellant did not participate in the 3rd respondent’s primary election which produced the 1st respondent. That being so,appellant does not qualify as an aspirant under S. 87(9) of the Electoral Act (2010) to maintain an action against a primary election he did not participate in.
Counsel submitted that there are other averments in the statement of claim disclosing more than one primary election. See reliefs 3 and 7 as well as paragraphs 48(9) and 55(b) of the statement of claim. Counsel maintained that the trial court was right in applying the decision of the Supreme Court in the case of Lado & Ors v. C.P.C. & Ors. (supra) in declining jurisdiction to entertain the Appellant’s case.
In the reply brief, learned counsel for the appellant maintained that appellant was an aspirant/candidate for the primary election for Igbo-Eze South State constituency as such he has the locus standi to complain that 1st and 2nd respondents did not comply with the procedure for nomination provided under the Electoral Act, PDP Guidelines. He urged the court to hold that the lower court has jurisdiction to entertain complaint of the appellant and allow the appeal.
I have considered the submission of both counsel advanced in support of issue two. I agree with appellant’s counsel that the facts in Lado’s case are distinguishable from the facts and circumstances of the case at hand. The facts are not on all fours. This however, does not mean that the principles of law laid down by the Supreme Court in Lado’s case cannot be applied in the case at hand. For instance, in Lado’s case the Supreme Court held that where there is a dispute as to which of two primaries of a political party produced the nominated candidate, that dispute is not justiceable under the provisions of section 87(4) (b) (ii), C(vi) and 10 of the Electoral Act 2010 (as amended) and the courts will have no jurisdiction to entertain same. In other words, the claim of the appellants at the lower court is outside the limited jurisdiction conferred on the trial court by virtue of S. 87(9) of the Electoral Act 2010 (as amended). This pronouncement could be applied in the case at hand to show that appellant who did not participate in any primary election has no locus standi to complain about the conduct of the primary election. His complaint of non-compliance is therefore outside the limited jurisdiction conferred on the trial court under sec. 87(9) of the Electoral Act. The lower court in my humble view rightly referred to the case of Lado v. C.P.C. (supra). As discussed under Issue 1, I also find the case of PDP v. Sylva (supra) very relevant in resolving the said issue as it is instructive. It is not the law that facts in cases must be on all fours before it could be applied while resolving an issue.
I now consider the 3rd respondent’s Notice of Intention to contend filed by the respondent on 28/5/2013. The Notice was brought pursuant to order 9 Rule 2 of the Court of Appeal Rules, 2011. 3rd respondent’s counsel by the notice had urged the court to affirm the decision of the trial court dated 20th day of July 2012 on grounds other than those relied upon by the trial court. The grounds for the notice are:-
1. The appellant who did not participate in primary election sought to be set aside by his suit before the trial court, lacks the locus standi to question the conduct and outcome of the said primary election under the provisions of Section 87(9) of the Electoral Act 2010 (as amended) as decided by the Supreme Court in the case of PDP v. Sylva (2012) ALL FWLR (pt 637) 606.
2. The appellant’s claim before the lower court is outside the limited jurisdiction confirmed on the trial court by virtue of Section 87(9) of the Electoral Act 2010 (as amended) as decided by the Supreme Court in the case of Lado v. CPC (2011) 12 SC (Pt 111) 113.
The primary duty of a respondent is to support the judgment of the lower court, which is in his favour. However, there may be a situation in which the respondent is contending that the judgment appealed against by the appellant and which is in his favour should be affirmed on other grounds other than those relied upon by the lower court as sought in this case. It is in such a case that he may invoke order 9 rule 2 of the Court of Appeal Rules, 2011. Thus, when a respondent files a notice of contention, he is merely saying that the judgment of the lower court 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.
I have earlier resolved under issue one, that Appellant has no locus standi to bring a claim under S. 87(9) of the Electoral Act 2010 (as amended) because he was not an aspirant having not participated in any primary election conducted by the 3rd respondent. Following the decision of the Supreme Court in PDP v. Sylva (supra) the trial court has no jurisdiction to entertain the complaint of non-compliance with the Electoral Act raised by the appellant. The learned trial judge in his ruling declined jurisdiction based on the reasons stated therein. The relevant part of the ruling is reproduced hereunder as follows:-
“In whichever perspective that I may choose to view this matter it is very doubtful to establish the jurisdiction of this court to determine this matter. In my mind, there are 2 dimensions of looking at this issue. Firstly, the dimension introduced by the plaintiffs counsel Menkiti Esq, which is that there was no election in this matter. (The plain truth is that the said election has since been conducted). It implies that the election the Plaintiff seeks to contest as party candidate is no longer in existence, it has since been conducted, and this suit serves no useful purpose even if judgment is given for the plaintiff. The whole question raised would amount to mere academic exercise.
The case of Plateau State v. A.G. Federation supra and A.G. Abia State v. A.G. Federation (2006) 16 NWLR (pt. 1005) 265 at 387 paragraph F – G are very relevant here. The act has already been carried out and this court may not have the jurisdiction to unwind same. The second dimension is based on the argument and submission of Anike Esq., which has been stated earlier. Learned counsel in reference to reliefs 3 and 7 in Plaintiff’s statement of claim laid bare the mind of the plaintiff which is that he and not the 1st defendant is the winner of the April Election. That return certificate should have been given or issued to him and not the 1st defendant. It is therefore not in doubt that the plaintiff wants the election and return of the 1st defendant set aside. If this is the intention of the plaintiff and I believe it is, then it will obviously amount to court choosing between two list of candidates by upholding one list of the candidate to the other list. It will equally amount to determining which of the two primary elections is the valid primary election of the political party. This it has been held cannot be entertained by the court because it is outside the conditions for redress clearly stipulated under the provisions of section 87(9) of the Electoral Act 2010 (as amended).
In the case of Senator Lado it was held that:
The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the provision of Section 87(4) (b) (ii); (c) (ii) and 9 of the Electoral Act (as amended). It is only if he can come within the provisions of those sub-sections that his complaints can be justiceable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party.
That power still resides in the political parties to exercise.
Section 87(4)(ii) provides for the procedure for conducting primaries within a State for Senatorial seat. House of representative seat and State House of Assembly. It simply provides that the aspirant with the highest vote shall be declared a winner of the primaries and the name of such candidate shall be forwarded to INEC as the winner of this primaries. Sub-section (9) is a redress where the above procedure is not complied with.
It provides:
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, for redress.
Looking at the two dimensions above discussed, it is my view and observation that in whichever perspective I may choose to view this matter, it is doubtful to come to the conclusion that this court has the jurisdiction to hear and determine this suit. Also to note is that it is the case of Lado that is applicable to the facts of the case and not the case of Emenike as alleged by the Plaintiff’s counsel. It is therefore my humble view that this Court does not have the jurisdiction to adjudicate over this matter. Case is struck out accordingly.”
I agree with 3rd respondent’s counsel that although the trial court declined jurisdiction to entertain the appellant’s complaint, it was based on different grounds hence the relief sought for in the Respondent’s notice to contend. The relief sought is therefore appropriate in the circumstances. The issue of locus standi involves jurisdiction since the competence of the court to entertain the suit is being questioned. The appellant was not an aspirant as such he cannot invoke S. 87(9) of the Electoral Act 2010 (as amended) to bring complaint of non-compliance before the Federal High Court. Appellant did not participate in the primary election, a pre-primary election affair of the PDP which is a matter outside the limited jurisdiction conferred on the trial court by virtue of S. 87(9) of the Electoral Act. In the circumstances, I will grant the respondent’s notice and affirm the judgment of the trial court delivered on 20.07.12 on the grounds set out in the respondent’s notice to contend.
Having affirmed the judgment of the trial court on ground of jurisdiction, I do not find it necessary to discuss the applicability of S. 141 of the Electoral Act 2010 (as amended) raised suo motu by the court.
In the result, I hold that the appeal lacks merit and same is dismissed. The Ruling of the Federal High Court Enugu delivered on 20-7-2012 by Agishi J., is hereby affirmed on other grounds set out in the respondent’s Notice. Parties to bear their own costs.
IGNATIUS I. AGUBE, J.C.A: I have read the lead Judgment of my learned brother A.G. Mshelia, J.C.A. and I agree completely with the position he has taken that this Appeal lacks merit and same should be dismissed. The facts of this case are similar to those in George T. Ogara V. Patrick O. Asadu & 3 Ors Appeal No. CA/E/368/2012 where I also held in my Judgment delivered on 27th February, 2013, that the appellant not being a participant at the primary that threw up the eventual candidate of the P.D.P. for the Nsukka/Igbo-Eze South Federal Constituency, House of Representatives Election, he could not ignite or invoke the jurisdiction of the Federal High Court pursuant to Section 87(9) of the Electoral Act, 2010 (As Amended) to entertain his suit complaining against the Primary Election.
The cases of Lado V. C.P.C. (2011) 12 S.C. (pt. 111) 113, PDP V. Sylva (2012) ALL FWLR (Pt. 637) 606, Ikechi Emenike V. PDP & Ors. (2012) 12 NWLR (Pt. 1315) 556, Uzodinma V. Izunaso (No. 2) (2011) 17 NWLR (Pt.1275) 30 at 59 and Ugwu V. Ararume (2007) 12 NWLR (Pt. 1048) 367; are all very instructive as they have established at least for now that for any complainant or plaintiff to come within the narrow and circumscribed compass of the jurisdiction conferred on the Federal High Court by Section 87 (9) of the Electoral, 2010 (As Amended) to entertain complaints on nomination or selection of candidate for an election by a Political Party, he must not only be an aspirant but should have partaken fully in the said nomination exercise. Since from all ramifications, the appellant did not participate in the party primary which he is complaining about the court below was right in bolting its gate against him and striking out his suit.
It is for the above reasons and fuller reasons advanced in the lead judgment of my Lord, that I also affirm the decision of the trial Court and abide by the order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A: I had read the judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA, JCA. I agree with the reasoning and conclusions therein. I also hold that the appeal lacks merit. It is accordingly dismissed. The ruling of the trial court in Suit No. FHC/EN/CS/74/2011 delivered on 20-7-2012 is hereby affirmed. I make no order as to costs.
Appearances
George Ogara with S. Nnorom Esq.For Appellant
AND
T. Maduka with C.O. Okolo (Mrs) for 1st Respondent and (holding brief)
of Chief Olusola Oke Esq. for 3rd Respondent.
2nd & 4th respondents absent (though served).For Respondent
