BOSA v. APC & ORS
(2020)LCN/14616(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, September 15, 2020
CA/A/CV/611/2020
RATIO
PLEADINGS: LOCUS STANDI IN ELECTION MATTERS.
The term ‘locus’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like ‘standing’ or ‘title to sue.’ It is in Nigeria a constitutional requirement in order to enable a person to maintain an action and it is limited to the prosecution of matters relating to the civil rights and obligations of the plaintiff, be that plaintiff a person or persons, a group of persons, a statutory body, a government, an authority or any other juristic person (see – Section 6(6)(b) of the Constitution of the Federal Republic 1999. Standing to sue is a condition precedent to a determination on the merits. It is an issue of jurisdiction which is a double cast. The lack of locus standi makes the person an incompetent party. It therefore means that such a party appearing before the Court is with an incompetent cause of action. Ultimately the Court itself would not be properly endowed with the capacity to entertain the action because the Court would be lacking jurisdiction to entertain the action. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merit; his case must be struck out as being incompetent. See the cases of Okpe v. FAN Milk & Anor. (2017) 2 NWLR (Pt. 1549) 282, Aderibigbe & Anor. v. Abidoye (2009) LPELR – 140 (SC), In re: Otuedon (1995) 4 NWLR (Pt. 392) 655.
sential to observe that issue of who is a candidate of a political party is a domestic affair of the political party and it is not a justiceable issue since the Court cannot appoint a candidate for a political party. In the case of PDP & Anor. v. Sylva & Ors. (2012) 13 NWLR (Pt. 1316) 125, the Supreme Court held:
“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-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 election 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 like. A political party must obey its own constitution. See: Hope Uzodinma v. Senator Osita Izunaso 2011 Vol. 5 (Pt. 1) MJSC, p. 27.
In the instant case, the appellant from his affidavit evidence was certain and emphatic that he did not contest the primary election of the 1st Respondent. He was not a contestant. He did not take part in the primary election organized by the political party. He was not an aspirant in the primary election. An aspirant is not a person who nurse an ambition to contest, it must be a person who is seen to be in the contest. By Section 156 of the Electoral Act, “an aspirant” is defined to mean a person who aspires or seeks or strives to contest an election to a political office. Such a person must have been beyond being a card carrying party member, taken the required steps such as collecting nomination forms or emerged as nominated candidate to contest the said election. The law upon which the appellant came to Court is Section 87(9) of the Electoral Act 2010 (as amended). The law prescribes:
(9) 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 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.
This law has been well interpreted and applied in several cases decided by the Supreme Court. A few of such will illuminate on the intendment of this much sought after and most abused provision by judicial suitors. In the case of Ufomba v. INEC & Ors. (2017) 13 NWLR (Pt. 1582) 175, Nweze, JSC, held as follows:
“As demonstrably shown in the said leading judgment, the appellant’s case was anchored on the non-compliance with the orders of Court; party leadership and membership of political party: matters that, indubitably, orbit outside the compass of Section 87 (9) of the Electoral Act, 2010 (As amended). In effect, at the trial Court, as the lower Court found the appellant failed to denote the factual situations that could clothe the Court with jurisdiction. I take liberty of this contribution to reiterate the point made in several decisions of this Court, that Section 87 (9) (supra) does not grant sundry interlopers the carte blanche to query party primaries, Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437; Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 28, Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556, Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55. On the contrary, that Section [Section 87 (9)] is intended to vouchsafe to actual applicants who participated in their party primaries the right to impugn the conduct of such primaries for non-compliance with the provisions of the Electoral Act and Guidelines of their parties, Emenike v. PDP (supra), Emeka v. Okadigbo (supra), Uzodinma v. Izunaso (supra), Anyanwu v. Ogunewe (supra). As such, as the lower Court affirmed, the trial Court, rightly declined jurisdiction. It could not be otherwise for jurisdiction is a threshold issue in cases before any Court.”
Also, in the caes of Alhassan & Anor v. Ishaku & Ors (2016) 10 NWLR (Pt. 1520) 230, the Supreme Court held:
“Section 87(9) of the Electoral Act 2010 (as amended) States clearly 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 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 question is who has the locus standi to complain against nomination of political party’s candidate? By virtue of the foregoing, Section 87(9) (supra) it is “aspirant”, not even a candidate or (the Appellants herein) who are not members of 2nd Respondent, who may complain to the Court if any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with. See 1. Onuoha v. Okafor (1983) 14 NSCC 494, 2. Emeka v. Okadigbo 2012 18 NWLR (Pt. 1316) 55, 3. Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310, 4. Ombugadu v. CPC (2013) 3 NWLR (Pt. 1349) 31 at 71 – 72, 5. Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184, 6. Kolawole v. Folusho (2009) 6 NWLR (Pt. 1143) 338. See further recent decisions of this Court on: 1.Shinkafi & Anor v. A. Yari & Sons (unreported) Appeal No: 907/2015, delivered on 8th January, 2016, 2. Tarzoor & Anor. v. Ioraer & 2 Ors.SC/928/2015 (unreported) delivered on 15th January, 2016”.
Furthermore, the Supreme Court in Pali v. Abdu & Ors. (2019) LPELR 46342 (SC), held:
The question therefore raised in answer in the determination of this appeal has in a long line of cases been well settled and the fundamental angle is that the nomination and sponsorship of a candidate for election into a political office is within the realm of a domestic affair of a political party over which the Court has no jurisdiction. It is with that in view that there is a reiteration that Section 87 (9) of the Electoral Act, 2010 (as amended) which provides for the selection or nomination of a candidate by a political party has to be properly invoked for it to be of use to the litigant seeking its relieving features in the ventilation of his grievance over the nomination or selection by the relevant political party for which the person seeking redress can hang onto. This is because that statutory provision has some conditions which must be complied with before a valid invocation can be made. See Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386. I shall for clarity quote the said Electoral Act, Section 87 (9) thereof thus: “(a) That there must first have been a primary for the selection or nomination of a candidate by a political party; (b) The exercise for the primary must have been in respect of an election, (c) The complainant must be an aspirant who ought to have taken part in his political party’s primaries and it must be shown that the political party designate did not comply with a provision of the Electoral Act or its political guidelines for selection done”. In fact, the localization of the nomination and sponsorship of a candidate by his political party within the confines of that party and not outside it and clearly outside the grasp of the Courts has been given judicial acknowledgment since the jurisdiction of the Court does not exist in respect of such matters or disputes arising therefrom challenging the authority of the political party.
See also Nduul v. Wayo (2018) LPELR-45151 (SC). The law is therefore, certain that a person who has locus standi to come to Court under Section 87(9) of the Electoral Act, is someone who is an aspirant at the Primary Election. This fact must be prevalent in the claim of the litigant. It is not enough for a card carrying member of a political party to rush to Court to complain about the conduct or otherwise of a party Primary Election. He must openly demonstrate in his Originating Processes that he was an aspirant in the said Primary Election of the political party. Per STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
YUNUSA B. BOSA APPELANT(S)
And
- ALL PROGRESSIVES CONGRESS (APC) 2. ALHAJI KASIM DANJUMA 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading The Judgment): This appeal is against the decision of the Federal High Court, sitting in Minna, Niger State, in Suit No: FHC/MN/CS/10/2020, delivered on the 9th day of July, 2020. A Preliminary Objection was raised in that case by the 1st and 2nd Respondents which the trial Court upheld and dismissed the claim of the Appellant. The appellant was the Plaintiff at the trial Court. While the Respondents in this appeal were the Defendants.
Aggrieved over this decision, the appellant has brought this appeal seeking for an order to set aside the judgment of the trial Court and an order granting the reliefs claimed by the appellant at the trial Court.
This case was originated at the trial Court through the Originating Summons filed on 28/02/2020. In that Originating Summons, the appellant raised three questions and four Principal consequential reliefs with one omnibus relief. The questions and reliefs are couched as follows:
1. Whether the 1st Defendant is not in breach of Section 87 (1) of the Electoral Act, 2010 (as amended) and its Guidelines when it did not hold Primary Elections for the
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purported nomination of the 2nd Defendant to contest the election for the House of Representative of Magama/Rajau Federal Constituency to be organized by the 3rd Defendant on the 14th of March, 2020.
2. Whether having regards to Section 87 (1) of the Electoral Act, 2010 (as amended), the purported nomination of the 2nd Defendant and submission of his name to the 3rd Defendant as the candidate of the 1st Defendant in the 14th March, 2020 election for House of Representatives of Magama/Rijau Federal Constituency without the statutory primary election is not valid, null and void.
3. Whether the 1st Defendant, that is in breach of Section 87 (1) of the Electoral Act, 2010 (as amended) and its Guidelines, has a candidate for the 14th March, 2020 election for House of Representatives of Magama/Rijau Federal Constituency to be conducted by the 3rd Defendant.
The Plaintiff thereafter, claimed the following reliefs against the Defendant:
a. A declaration that 1st Defendant is in breach of Section 87 (1) of the Electoral Act, 2010 (as amended) and its Guidelines when it did not hold Primary Elections for the purported nomination of the 2nd Defendant
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to contest the election for the House of Representatives of Magama/Rijau Federal Constituency to be organized by the 3rd Defendant on the 14th of March, 2020.
b. A declaration that having regards to Section 87 (1) of the Electoral Act, 2010 (as amended), the purported nomination of the 2nd Defendant and submission of his name to the 3rd Defendant as the candidate of the 1st Defendant in the 14th March, 2020 election for House of Representatives of Magama/Rijau Federal Constituency without the statutory primary election is invalid, null and void.
c. A declaration that the 1st Defendant that is in breach of Section 87 (1) of the Electoral Act, 2010 (as amended) and its Guidelines has no candidate for the 14th March, 2020 election for House of Representatives of Magama/Rijau Federal Constituency to be conducted by the 3rd Defendant.
d. An Order restraining the 3rd Defendant, its agents, proxies, privies and representatives, in whatever manner, from accepting the name of the 2nd Defendant or directing the 3rd Defendant to remove the name of the 2nd Defendant from the ballot for the 14th March, 2020 election for House of Representatives of
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Magama/Rijau Federal Constituency.
e. An Order for such further orders as this Honourable Court may deem it fit to make in the circumstances of this case.
The Originating Summons was supported by an Affidavit of 13 paragraphs deposed to by the appellant himself with three (3) Exhibits, thus: Exhibits A, B and B1 annexed to it with his Written Address.
The 1st Defendant in reaction to the Originating Summons of the Plaintiff filed an 18 paragraphs Counter Affidavit with 3 Exhibits and a Written Address.
Thereafter, the 1st and 2nd Defendants (1st and 2nd Respondents herein) filed notices of preliminary objection on the 02/06/2020 and 03/04/2020 respectively, urging the Court to dismiss/strike out the suit. The Plaintiff in reaction to the notices of Preliminary Objection of the 1st and 2nd Defendants filed Written Addresses on point of law on the 09/06/2020 and urged the trial to dismiss the preliminary objection of the 1st and 2nd Defendants.
The trial Court in a considered judgment delivered on the 9th day of July, 2020 upheld the Preliminary Objection of the 1st and 2nd Defendants, declined jurisdiction to hear and determine the suit
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and thereafter, dismissed same.
Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court vide his Notice of Appeal filed on the 16th day of July, 2020.
In line with the rules of this Court, the Appellant filed his brief of argument on 13/08/2020. The 1st Respondent filed its own brief of argument on 20/08/2020. While the 2nd and 3rd Respondents filed their briefs of argument on 26/08/2020 and 31/08/2020, respectively.
The Appellant formulated three issues for determination of this appeal. These issues are:
1. Whether having regards to the entire circumstances of this case and the failure of the trial Court to properly consider the claim of the Appellant that the 1st Respondent did not hold Primary Election for the Nomination of the 2nd Respondent, the trial Court was right to have sustain the Preliminary Objection of the 1st and 2nd Respondent that the Appellant lacks locus standi. (Distilled from Grounds 1 and 2 of the Notice of Appeal).
2. Whether the refusal of learned trial Court, in its ruling of 16th June, 2020, to join Shehu Saleh Rijau is not perverse and thereby occasioned a miscarriage of
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justice against the Appellant. (Distilled from Ground 4 of the Notice of Appeal).
3. Whether the learned trial Court was right to have delved into the substantive matter at the interlocutory stage. (Distilled from Ground 3 of the Notice of Appeal).
The 1st Respondent in response, also distilled three (3) issues for the determination of this appeal, thus:
1. Whether the learned trial Judge was right when His Lordship held that the Appellant lack the locus standi to file Suit No: FHC/MN/CS/10/2020 BETWEEN YUNUSA B. MUSA MOHAMMED BOSA V. ALL PROGRESSIVE CONGRESS (APC) & 2 ORS. (Distilled from Ground 1 and 2).
2. Whether learned trial Judge was right when His Lordship in a Ruling delivered on 16th day of June, 2020, dismissed the application for joinder by one Shehu Saleh Rijau. (Distilled from Ground 4 of the Notice and Grounds of Appeal).
3. Whether the learned trial Judge delved into the substantive matter at the interlocutory state. (Distilled from Ground 3 of the Notice and Grounds of Appeal).
The 2nd Respondent in his brief of argument also submitted three issues for determination of this appeal, thus:
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- Whether the lower Court considered the case of the appellant before declining jurisdiction. (Distilled from Grounds 1 and 2).
2. Whether the lower Court was right when it refused to join Shehu Saleh Rijau as a Plaintiff to the existing suit. (Distilled from Ground 4).
3. Whether the lower Court made any pronouncement or decision or delved into the substantive matter while deciding the Notices of Preliminary Objection. (Distilled from Ground 3).
Counsel for the 3rd Respondent in response, distilled a sole issue for the determination of this appeal, thus:
Whether having regards to the clear provisions of Sections 87(9) of the Electoral Act 2010 (as amended) the learned trial Judge was right when his Lordship held that the Appellant lacked the locus standi to file Suit No: FHC/MN/CS/10/2020 between Yunusa B. Bosa v. All Progressives Congress (APC) & 2 Ors. (Distilled from Grounds 1 and 2).
On the 10th day of September, 2020, when this appeal came up for hearing, P.H. Kyelek Esq., counsel for the 2nd Respondent moved his Preliminary Objection and urged that Ground 4 (Four) of the Notice of Appeal and the issue two raised on it be struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In response, Mohammed Ndayako Esq., counsel for the Appellant conceded that Ground 4 (Four) of the Notice of Appeal and issue 2 (Two) raised on it are incompetent.
Parties having been on consensus that Ground 4 of the Notice of Appeal and Issue Two raised therein, are incompetent, same ground (4) and issue (2) are hereby struck out.
Issue two having been struck out, the two (2) remaining live issues by the Appellant more represent his grievances. I shall adopt the said issues (i.e issues One and Three) for the determination of the appeal. I will consider these two issues together.
Issues for Determination:
These issues are – whether having regards to the entire circumstances of this case and the failure of the trial Court to properly consider the claim of the Appellant that the 1st Respondent did not hold Primary Election for the Nomination of the 2nd Respondent, the trial Court was right to have sustained the Preliminary Objection of the 1st and 2nd Respondent that the Appellant lacks locus standi; and
Whether the learned trial Court was right to have delved into the substantive matter at the interlocutory stage.
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Counsel for the appellant while arguing these issues submitted that the trial judge erred in law when he ignored the declaration/evidence of the appellant as contained in paragraphs 2 and 3 of the affidavit in support of the Originating Summons, that the 1st Respondent did not conduct Primary Election for the nomination of the 2nd Respondent to contest for the bye- election of the House of Representatives of Magama/Rijau Federal Constituency. That by Section 87(1) of the Electoral Act, a political party seeking to nominate candidate for elections under this Act shall hold primaries for aspirants to all elective positions. That the consequences of failure to comply with Section 87(1), as in the instant case, is that the nomination of the 2nd Respondent for the bye-election for Magama/Rijau Federal Constituency election of 14th March, 2020, is null and void. He relied on the case of Omajali v. David & Ors. (2019) LPELR – 49381 (SC). He maintained that the trial Court did not consider all the issues raised before it by the appellant. He cited: NCC v. Motophone Ltd. & Anor (2019) LPELR – 47401 (SC).
Counsel further submitted that the trial judge having found
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at the last paragraph of page 347 of the Record of Appeal in its Ruling of 16th June, 2020, that ‘the plaintiff (appellant) is in my view competent to prosecute this case without any person being made a party’, cannot overrule itself to hold in its Judgment of 9th July, 2020, that the same appellant lacks the locus standi to institute this action. He relied on the case of Amaefuna v. Okoli (2014) LPELR – 23755 (CA).
Counsel urged this Court to resolve these issues in favour of the appellant and hold that having regards to the entire circumstances of this case and the failure of the trial Court to properly consider the claim of the appellant that the 1st Respondent did not hold Primary Election for the nomination of the 2nd Respondent, that the trial Court was wrong to have sustained the Preliminary Objection of the 1st and 2nd Respondents that the appellant lacks locus standi, especially that it found on the 16th June, 2020 that the appellant is competent to prosecute this instant matter.
In response, counsel for the 1st Respondent while arguing these issues submitted that locus standi denotes the legal capacity to institute proceedings in a
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Court of law, that it is an aspect of justifiability and also an issue of jurisdiction. That locus standi is akin to jurisdiction. He referred to Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 338 Paragraphs E – F, Madukolu v. Nkemdilim (1962) NSCC Vol. 2 Page 374 at 379 Line 50 – 55, 380 Lines 1 – 5). That where a suit is incompetent before a Court as a result of lack of locus standi, the Court would not have the jurisdiction to entertain same. He relied on U.B.N. Plc. v. Ntuk (2003) 16 NWLR (Pt. 845) 183 at 205 Paras. 216 – 217, Paragraphs H-C and Ikeja Hotels Plc v. V.L.S.B.I.R. (2005) 17 NWLR (Pt. 954) 343 at 363 Paragraphs B – C. That by the appellante own admission, he is automatically divested of the locus standi from instituting this action. He referred to Guda v. Kitta (1999) 12 NWLR (Pt. 629) at 21. That the appellant in this case was not an aspirant, neither is he a dissatisfied contestant at the Primary election conducted by the 1st Respondent on 14/03/2020. That he has no locus under Section 87 (9) of the Electoral Act, 2010 (as amended) to challenge his party’s primaries by instituting this action. That the provision
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of Section 87(9) of the Electoral Act, 2010 (as amended) does not apply to the appellant who did not participate in the primary Election for Magama/Rijau Federal Constituency conducted on the 15th February, 2020. Therefore, that the appellant was not an aspirant within the contemplation of the law. He cited: PDP & Anor. v. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 126, Eze v. PDP & Ors. (2018) LPELR 44907 (SC) and Alfa v. PDP & Ors. (2019) LPELR – 47685 (CA) at pp. 28 – 29, paragraphs B – C and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 at 347 paragraphs F – G.
Counsel further submitted that the trial Court was on terra firma to hold that the appellant having not participated in the primary election he is seeking to nullify, that he lacks the locus standi to institute this action and that the trial Court lacks the jurisdiction to entertain, hear and determine this matter. That contrary to the appellant’s contention, that where a Court holds that it lacks jurisdiction to hear a matter that the only order it can make is striking out the suit and not to further waste the precious judicial time. He referred to Kubor & Anor. v. Dickson & Ors.
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(2012) LPELR – 9817 (SC) at page 72 paragraph A. He contended that the issue presented before the trial Court is no less than an academic issue which had no utilitarian value and that Courts are not created to deal with academic issues. He cited AGF v. ANPP (2003) 18 NWLR (Pt. 851) 182 at 210 – 211 Paragraphs E – F (SC), Onochie & Ors v. Odogwu & Ors. (2006) LPELR – 2689 (SC) at 40 – 41 paragraphs F – A (SC), Action Congress v. INEC (2007) LPELR – 8898 (CA) at pages 31 – 38 Paragraph E.
Counsel urged the Court to hold that this case before the Court is not justiciable and therefore, decline jurisdiction to hear this matter and either dismissing or striking out same and resolve these issues in favour of the 1st Respondent.
Counsel for the 2nd Respondent while arguing these issues contended that the holding and findings of the Court cannot be faulted having regards to the material facts placed before it. That the appellant failed to attach the APC Guideline and equally failed to attached his expression of interest and Nomination Forms. That it is upon the foregoing facts and circumstances that the trial Court had no difficulty in arriving
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at its decision. That the lower Court rightly evaluated the evidence particularly paragraphs 2 – 8 of the affidavit in support of the Originating Summons. He made reference to the further affidavit in Support of Originating Summons, relied on Sections 87(1) and (9) of the Electoral Act 2010 and the cases of Abubakar v. Tanko (2019) 3 NWLR (Pt. 1658) at page 18, Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134, Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) at 563.
Counsel further contended that a careful perusal of paragraph 8 of the Affidavit in support of the Originating Summons is an admission against interest. That the said paragraph indicated that the appellant himself and some others stated that all aspirants were prevented from selecting candidate of their choice. That he did not state that all aspirants were prevented from the exercise, but himself and some others were prevented. He maintained that the allegations that the 1st Respondent did not conduct primary election which produced the 2nd Respondent cannot stand in the face of the deposition in paragraph 8 of the Supporting Affidavit. That admission against interest is the best proof and waiver
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of all controversies on the fact pleaded and admitted. He relied on the case ofAisha Jummai Alahassan & Anor. v. Mr. Darius Dickson Ishaku & Ors., delivered on 22nd day of February, 2016 in Appeal No: SC/46/2016. That the finding of the trial Court is supported by the evidence on record. That the argument of the appellant that the trial Court ignored the depositions in paragraphs 2 and 3 of the affidavit in support and paragraphs 1,4, 5 and 6 of the further affidavit in support of the Originating Summons is not supported by the record of appeal.
Counsel argued that the submission of the appellant that the lower Court had earlier ruled that the appellant was competent to prosecute the case in its ruling of 16/06/2020 cannot now overrule itself and held that the appellant had no locus standi does not represent the correct position having regards to what transpired. That the appellant failed to show he suffered any miscarriage of justice as he failed to clothe himself with the necessary locus to challenge the Primaries of the 1st Respondent. That the appellant did not participate in the 1st Respondent’s primaries and cannot challenge same as
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rightly found by the Court. He referred to Jummai Alahassan & Anor. v. Mr. Darius Dickson Ishaku & Ors. (SC 46/2016, SC. 45/2016). He urged the Court to resolve these issues in favour of the 1st Respondent.
Counsel for the 3rd Respondent, while arguing its own sole issue, submitted that the learned trial judge was right when he held that the appellant lacked the locus standi to file Suit No: FHC/MN/CS/10/2020 between Yunusa B. Bosa vs. All Progressives Congress (APC) & Ors. That the provision of Section 87 (9) of the Electoral Act 2010 (as amended) is narrow to the extent that the provision is open to only ‘Aspirant’ in the said primary election to challenge same. That any other person who challenges the conduct of a primaries wherein he is not an Aspirant, in a plethora of authorities is referred to as a meddlesome interloper (a busy body). He cited: Eze v. PDP & Ors. (2018) LPELR – 44907 SC and Daniel v. INEC (2015) 9 NWLR (Pt. 1463).
That a close look at the records and the proceedings at the lower Court indicates that the appellant by his showing was unable to demonstrate before the trial Court that he is an Aspirant in
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the said primary election as contemplated by Section 87 (9) of the Electoral Act 2010 (as amended). He urged the Court to dismiss this appeal for lacking in merit.
Counsel for the appellant while arguing these issues submitted that the trial Court erred in law when it delved into the substantive issues in dealing with the Preliminary Objection of the 1st and 2nd Respondents. He referred to pages 390 – 395 of the Record of Appeal where the trial Court stated as follows: ‘Before I proceed to the merit of the notices of Preliminary Objection, it is important to review the background that gave rise to this proceeding’. He relied on the case of Agwu & Ors. v. Julius Berger Nig. Plc (2019) LPELR – 47625 (SC). That the law is settled on what the Court must consider in determining the issue of locus standi. He cited: Tilley Gyado & Co. Nig. Ltd. V. Access Bank & Ors. (2019) LPELR – 47081 (CA).
Counsel finally urged the Court to also resolve these issues in favour of the appellant and against the Respondents.
In further response, counsel for the 1st Respondent contended that while he concedes that Courts are not to delve into substantive
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matter at interlocutory stage, that the law does not prohibits the Court from reviewing the faets of the case. And that reviewing the facts of the case does not amount to determining substantive matter at interlocutory stage. He maintained that even though there is no standard format of writing judgment, that the proper step is commencing by evaluation of evidence. He relied on the cases of Andrew & Anor v. INEC & Ors (2017) LPELR – 48518 (SC) at pages 36 – 39 paragraphs E – D and Babayo & Anor. v. The Registered Trustees of the United Methodist Church of Nig. & Anor (2019) LPELR – 49278 (CA) at pages 32 – 33 Paragraphs B – C.
He submitted that in the instant case, that the appellant has failed to show how the lower Court determined the substantive matter at the interlocutory stage or what he suffered by the evaluation of evidence. Counsel urged the Court to resolve these issues in favour of the 1st Respondent and dismiss the appeal for lacking in merit.
While responding to these issues, counsel for the 2nd Respondent submitted that the argument of the appellant under his issue 3 is fundamentally flawed. That throughout the length and
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breath of the appellant’s argument under issue 3, that the appellant did not pin point any substantive issue that was delved into, decided or pronounced upon which prejudiced the substantive matter by the lower Court while deciding the preliminary objection. That since the Preliminary Objections were heard along with the substantive matter, that the lower Court heard arguments on the objection and the substantive matter. That the lower Court only reviewed or recounted the facts that gave rise to the institution of the case before proceeding to deal with the gist of the preliminary objection. He referred to pages 390 – 395 of the record. Counsel maintained that a careful look at the judgment at pages 375 – 403, will show that there was nowhere a substantive point, issue or matter was pronounced or decided upon.
That Preliminary Objection was based and decided upon without making any reference or regarding the processes of the Respondents. That the processes of the Respondents were not the basis upon which the preliminary objections were sustained. That it was purely on the claim of the appellant. That the case of
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Tilley Gyado & Co Nig. Ltd v. Access Bank & Ors. (2019) LPELR – 47081 is not apposite.
He urged the Court to resolve these issues in favour of the 2nd Respondent and dismiss the appeal for lacking in merit.
In the instant appeal, the main issue which is the crux of the contention of the parties is that of locus standi. The term ‘locus’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like ‘standing’ or ‘title to sue.’ It is in Nigeria a constitutional requirement in order to enable a person to maintain an action and it is limited to the prosecution of matters relating to the civil rights and obligations of the plaintiff, be that plaintiff a person or persons, a group of persons, a statutory body, a government, an authority or any other juristic person (see – Section 6(6)(b) of the Constitution of the Federal Republic 1999. Standing to sue is a condition precedent to a determination on the merits. It is an issue of jurisdiction which is a double cast. The lack of locus standi makes the person an incompetent party. It therefore means that such a party appearing before
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the Court is with an incompetent cause of action. Ultimately the Court itself would not be properly endowed with the capacity to entertain the action because the Court would be lacking jurisdiction to entertain the action. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merit; his case must be struck out as being incompetent. See the cases of Okpe v. FAN Milk & Anor. (2017) 2 NWLR (Pt. 1549) 282, Aderibigbe & Anor. v. Abidoye (2009) LPELR – 140 (SC), In re: Otuedon (1995) 4 NWLR (Pt. 392) 655.
The issue raised by the appellant at the trial Court is a contest over the candidacy of the 2nd Respondent as the candidate of the 1st Respondent. To enable the appellant have the locus to challenge the primary election or the candidacy of the 2nd Respondent as the candidate of the 1st Respondent, the appellant must show on the face of his claim, his locus standi to challenge the choice of the political party’s candidate. This is generally the requirement of the law. It is essential to observe that issue of who is a candidate of a political party
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is a domestic affair of the political party and it is not a justiceable issue since the Court cannot appoint a candidate for a political party. In the case of PDP & Anor. v. Sylva & Ors. (2012) 13 NWLR (Pt. 1316) 125, the Supreme Court held:
“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-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 election was conducted in accordance with the parties constitution and Guidelines.
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This is so because in the conduct of its primaries the Courts will never allow a political party to act arbitrarily or as it like. A political party must obey its own constitution. See: Hope Uzodinma v. Senator Osita Izunaso 2011 Vol. 5 (Pt. 1) MJSC, p. 27.
In the instant case, the appellant from his affidavit evidence was certain and emphatic that he did not contest the primary election of the 1st Respondent. He was not a contestant. He did not take part in the primary election organized by the political party. He was not an aspirant in the primary election. An aspirant is not a person who nurse an ambition to contest, it must be a person who is seen to be in the contest. By Section 156 of the Electoral Act, “an aspirant” is defined to mean a person who aspires or seeks or strives to contest an election to a political office. Such a person must have been beyond being a card carrying party member, taken the required steps such as collecting nomination forms or emerged as nominated candidate to contest the said election. The law upon which the appellant came to Court is Section 87(9) of the Electoral Act 2010 (as amended). The law
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prescribes:
(9) 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 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.
This law has been well interpreted and applied in several cases decided by the Supreme Court. A few of such will illuminate on the intendment of this much sought after and most abused provision by judicial suitors. In the case of Ufomba v. INEC & Ors. (2017) 13 NWLR (Pt. 1582) 175, Nweze, JSC, held as follows:
“As demonstrably shown in the said leading judgment, the appellant’s case was anchored on the non-compliance with the orders of Court; party leadership and membership of political party: matters that, indubitably, orbit outside the compass of Section 87 (9) of the Electoral Act, 2010 (As amended). In effect, at the trial Court, as the lower Court found the appellant failed to denote the factual situations that could clothe the Court with jurisdiction. I
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take liberty of this contribution to reiterate the point made in several decisions of this Court, that Section 87 (9) (supra) does not grant sundry interlopers the carte blanche to query party primaries, Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437; Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 28, Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556, Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55. On the contrary, that Section [Section 87 (9)] is intended to vouchsafe to actual applicants who participated in their party primaries the right to impugn the conduct of such primaries for non-compliance with the provisions of the Electoral Act and Guidelines of their parties, Emenike v. PDP (supra), Emeka v. Okadigbo (supra), Uzodinma v. Izunaso (supra), Anyanwu v. Ogunewe (supra). As such, as the lower Court affirmed, the trial Court, rightly declined jurisdiction. It could not be otherwise for jurisdiction is a threshold issue in cases before any Court.”
Also, in the caes of Alhassan & Anor v. Ishaku & Ors (2016) 10 NWLR (Pt. 1520) 230, the Supreme Court held:
“Section 87(9) of the Electoral Act 2010 (as amended) States clearly as follows:
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“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 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 question is who has the locus standi to complain against nomination of political party’s candidate? By virtue of the foregoing, Section 87(9) (supra) it is “aspirant”, not even a candidate or (the Appellants herein) who are not members of 2nd Respondent, who may complain to the Court if any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with. See 1. Onuoha v. Okafor (1983) 14 NSCC 494, 2. Emeka v. Okadigbo 2012 18 NWLR (Pt. 1316) 55, 3. Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310, 4. Ombugadu v. CPC (2013) 3 NWLR (Pt. 1349) 31 at 71 – 72, 5. Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184, 6. Kolawole v. Folusho (2009) 6 NWLR (Pt. 1143) 338. See further recent decisions of this Court on: 1.
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Shinkafi & Anor v. A. Yari & Sons (unreported) Appeal No: 907/2015, delivered on 8th January, 2016, 2. Tarzoor & Anor. v. Ioraer & 2 Ors.SC/928/2015 (unreported) delivered on 15th January, 2016”.
Furthermore, the Supreme Court in Pali v. Abdu & Ors. (2019) LPELR 46342 (SC), held:
The question therefore raised in answer in the determination of this appeal has in a long line of cases been well settled and the fundamental angle is that the nomination and sponsorship of a candidate for election into a political office is within the realm of a domestic affair of a political party over which the Court has no jurisdiction. It is with that in view that there is a reiteration that Section 87 (9) of the Electoral Act, 2010 (as amended) which provides for the selection or nomination of a candidate by a political party has to be properly invoked for it to be of use to the litigant seeking its relieving features in the ventilation of his grievance over the nomination or selection by the relevant political party for which the person seeking redress can hang onto. This is because that statutory provision has some conditions which must be complied with
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before a valid invocation can be made. See Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386. I shall for clarity quote the said Electoral Act, Section 87 (9) thereof thus: “(a) That there must first have been a primary for the selection or nomination of a candidate by a political party; (b) The exercise for the primary must have been in respect of an election, (c) The complainant must be an aspirant who ought to have taken part in his political party’s primaries and it must be shown that the political party designate did not comply with a provision of the Electoral Act or its political guidelines for selection done”. In fact, the localization of the nomination and sponsorship of a candidate by his political party within the confines of that party and not outside it and clearly outside the grasp of the Courts has been given judicial acknowledgment since the jurisdiction of the Court does not exist in respect of such matters or disputes arising therefrom challenging the authority of the political party.
See also Nduul v. Wayo (2018) LPELR-45151 (SC). The law is therefore, certain that a person who has locus standi to come to Court under
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Section 87(9) of the Electoral Act, is someone who is an aspirant at the Primary Election. This fact must be prevalent in the claim of the litigant. It is not enough for a card carrying member of a political party to rush to Court to complain about the conduct or otherwise of a party Primary Election. He must openly demonstrate in his Originating Processes that he was an aspirant in the said Primary Election of the political party.
In the instant case, the appellant in his affidavit in support of the Originating Summons deposed in paragraphs 2 and 8 as follows:
2. That I am a member of the 1st Defendant with Membership Card serial number 09029496 registered on the 1/2/2014 and also aspired to contest the House of Representative for Magama/Rijau Federal Constituency for the 14th March, 2020 scheduled election, but was denied the opportunity by the non-holding of the Primary election by the 1st Defendant on the 15th February, 2020 as scheduled.
Attached herewith is my APC – CHANGE Membership Card number 09029496 and marked as Exhibit A.
8. That the 1st Defendant prevented me, Nasara Dan Mallam, Shehu Slow Dan Sokoto from contesting and also some other
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members from electing the candidates of their choice before arbitrarily sending the name of the 2nd to the 3rd Defendants as the nominated candidate for the 14th March, 2020 election for House Representatives of Magama/Rijau Federal Constituency.
It is very clear from the deposition of the appellant that beyond being a card carrying member of the political party, he was not in the contest of the primary election for the selection of candidate for the election to the House of Representatives. He asserted that he was denied the opportunity because primary election was not conducted by the party. He never showed any evidence of his aspiration to that office before being denied the right. He never showed or exhibited his evidence of procuring nomination form or expression of interest to contest at the primary election. The trial Court in its judgment found at page 401 of the record of appeal as follows:
From the foregoing, it is crystal clear the Plaintiff did not participate in the primary election the basis of which gave rise to this proceeding and for him to maintain this action, he must bring himself within the purview of
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Section 87(9) of the Electoral Act 2010 (as amended) otherwise, the Plaintiff will lack the requisite locus standi to institute this action.
This finding of the trial Court from the facts of this case cannot be faulted. The appellant truly has no locus standi to contest the outcome of an election he was not an aspirant or a party to. I believe too that the lower Court’s jurisdiction was not activated over the cause of the appellant. It follows therefore, that the lower Court was right to decline jurisdiction.
From the foregoing, this appeal is lacking in merit and it is hereby dismissed. The judgment of the trial Court in Suit No: FHC/MN/CS/10/2020, delivered on the 9th July, 2020, is hereby affirmed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother, Stephen Jonah Adah, JCA.
I agree entirely with the reasoning and conclusion reached therein. I therefore also dismiss the appeal.
I make no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in advance the lead judgment of my brother S. J. ADAH, JCA. I am in complete
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agreement with the reasoning and conclusions reached and adopt them as mine.
I also find the appeal lacking in merit, and dismiss it as a consequence.
I abide by all consequential Orders.
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Appearances:
NDAYAKO ESQ., with him, J. M. ABDULLAHI ESQ. For Appellant(s)
EKO EJEMBI EKO ESQ., with him, PHILIP ADAH ESQ., and O. N. BANISAYEMI ESQ. – for 1st Respondent.
P. H. KYELEK ESQ., with him, D. OROJA ESQ. – for 2nd Respondent.
J. M. ARABS (MRS.), with him, S. J. GBAJE ESQ. – for 3rd Respondent For Respondent(s)
