ELOKUN & ORS v. BELLO & ORS (2021)

ELOKUN & ORS v. BELLO & ORS

(2021)LCN/14955(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, January 14, 2021

CA/A/634/2018

RATIO

ACTION: ATTITUDE OF THE COURT TO ACADEMIC MATTERS

The appeal has become academic and the Courts do not deal with academic matters. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in their favour. See Plateau State v. Attorney-General of the Federation (2006) 1 SC (Pt. 1) 1, Amanchukwu v. FRN (2009) 8 NWLR (Pt. 1144) 475, Saraki v. FRN (2016) LPELR – 40013 (SC), Bamaiyi v. A.G. Fed., & Ors. (2001) LPELR – 730 (SC). A Court of law can only have jurisdiction to determine live issues between the parties. Dead issues that do not add to the rights and obligations of the parties are not worth the judicial time of the Court. This appeal which is now academic must be and it is hereby struck out. PER ADAH, J.C.A.

ACTION: EFFECT OF WHEN A PARTY’S STANDING TO SUE IS IN ISSUE IN A CASE; CONCEPT OF LOCUS STANDI

When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue. It is an issue of whether the party has the legal capacity to institute or commence an action in a competent Court of law without any inhibition, obstruction or hindrance from any person or body whatsoever. The person must show that he has a legal right or special interest in the subject matter.

It is however trite law that a non-member of a political party cannot question the primaries of another party. See Shinkafi & Anor v. Yari (2016) 7 NWLR (Pt. 1511) 340.
Similarly, it is trite that even within the confine of the same political party, only those who participated in the party primaries can complain about the conduct of the primaries. See Prince John Emeka v. Lady Margery Okadigbo & 4 Ors (2012) 18 NWLR (Pt. 1331) S.C. 55 at page 88, paragraph G.; Shinkafi & Anor v. Yari & Ors (supra). PER ADAH, J.C.A.

ELECTION MATTERS: ISSUES OF ELECTION

An election matter, it is trite is sui generis that is “Of its own kind and class”. Issues of election are governed by the 1999 Constitution, Electoral Act, and the Practice Direction.

By Section 87(1), (2), (3), of the Electoral Act, 2010 (as amended) reads as follows:
87.(1) A Political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political party for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being vote for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined below:
(a) …
(b) in the case of nomination to the positions of Governorship candidates, a political party shall, where it intends to sponsor candidates:
(i) hold a special congress in the State Capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party; and
(ii) the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party, for the particular state. PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1. MICHAEL N. ELOKUN 2. IBRAHIM SULE 3. MRS. HAWA ADAMU APPELANT(S)

And

1. ALHAJI YAHAYA BELLO 2. ALL PROGRESSIVES CONGRESS 3. PEOPLES DEMOCRATIC PARTY (PDP) 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 5. ATTORNEY-GENERAL OF THE FEDERATION RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, sitting in Abuja, in Suit No: FHC/ABJ/CS/535/2017, delivered on the 20th day of March, 2018; Coram: J. T. Tsoho, J. (now Chief Judge). Wherein the trial Court struck out the Plaintiffs’/Appellants’ case for lack of locus standi.

The appellants herein as the plaintiffs before the trial Court commenced this suit vide an Originating Summons following the disclosure by the 4th respondent that the 1st respondent registered as a voter at Government House, Lokoja having earlier registered on January 30th, 2011 at Wuse Zone 4, Abuja, and that the double registration by the 1st respondent was illegal.

Flowing from the said disclosure, the appellants sought for the determination of the following questions by the trial Court:
1. Whether the 1st Defendant who was not a registered voter in Kogi State Constituency and was not nominated in writing by registered voters as required by Section 32 of the Electoral Act, 2010 (as amended), was a qualified candidate to be sponsored by the 2nd Defendant in accordance with

Section 177(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) hereinafter referred to as “the Constitution” to replace the 2nd Defendant’s deceased candidate for Kogi State Governorship election?

Whether the 2nd Defendant can sponsor the 1st Defendant who was a registered voter in Abuja, the Federal Capital Territory (FCT) to contest as its governorship candidate for Kogi State constituency in view of Section 178(4) of the Constitution?
3. Whether the 2nd Defendant can canvass for votes of the registered voters in Kogi State for the 1st Defendant in accordance with Section 221 of the Constitution, when the 1st Defendant was not nominated in writing by registered voters in Kogi State as required by Section 32 of the Electoral Act 2010 (as amended) hereinafter referred to as “the Electoral Act”.
4. Whether the votes cast for the 2nd Defendant with its deceased candidate (late Prince Abubakar Audu) was not wasted votes when it introduced the 1st Defendant who was not qualified candidate as replacement thereby concluding the election without a qualified candidate?

The appellants/plaintiffs thereafter, sought for the following reliefs:
a. A Declaration that the 1st Defendant was not qualify (sic) candidate having not been register voter and/or nominated by register voters in Kogi State.
b. A Declaration that the 2nd Defendant cannot sponsor the 1st Defendant and canvass for votes for him without first obtaining nomination of registered voters in Kogi State.
c. A Declaration that the 1st Defendant who is not a registered voter in Kogi State was not qualify (sic) to be nominated by registered voters in Kogi State for any elective position in Kogi State and/or be voted for in Kogi State.
d. A Declaration that the 4th Defendant’s return of the 1st and 2nd Defendants as winners of Kogi State Governorship Election 2015 and subsequent Swearing-in of the 1st Defendant as Governor of Kogi State is null and void ab initio.
e. A Declaration that the 3rd Defendant, having satisfied the requirement of the Constitution and law, its candidate (Capt. Idris Ichala Wada) is entitled to be returned as winner of the governorship election 2015 in Kogi State and be sworn-in as such.
f. An Order nullifying the return and swearing-in of the 1st Defendant as Governor of Kogi State.

An Order compelling the 4th Defendant to issue certificate of return to the of the 3rd Defendant (i.e Captain Idris Ichalla Wada) to be sworn-in as Governor of Kogi State for tenure of 4 Years commencing from the date of swearing-in.
h. An Order nullifying all appointments made by the 1st Defendant as Governor of Kogi State.

The 1st and 2nd Respondents filed a Notice of Preliminary Objection which raised jurisdictional question of the trial Court. In a considered judgment delivered on the 20th day of March, 2018, the trial Court held that it lacks jurisdiction to entertain the suit and that the appellants have no locus standi to institute same.

Moreso, that the suit is an abuse of Court process. The suit was subsequently struck out.

Dissatisfied with the said decision, the appellants appealed to this Court vide a Six Ground Notice of Appeal dated and filed on the 11th day of June, 2018. The record of appeal was transmitted to this Court on the 3rd day of July, 2018.

In line with the rules and practice of this Court, parties filed and exchanged their respective briefs of argument. Appellants’ Brief of Argument was

filed on 7th August, 2018, 1st Respondent’s Brief of argument was filed on the 7th September, 2018 while the 4th Respondent’s Brief of Argument was filed on the 8th March, 2019 but deemed properly filed and served on the 21st January, 2020. The 2nd, 3rd and 5th Respondents did not file any brief.

Appellants’ Reply brief was filed to the 1st and 4th Respondents on the 19th September, 2018 and 16th October, 2019, respectively.

Counsel for the appellants distilled five (5) issues for the determination of this appeal. The issues are:
1. Whether the Motion for amendment filed after conclusion of evidence and final addresses is capable of extending the provision of 90 days for judgment in Section 294(1) of the 1999 Constitution (as amended). (Ground 1).
2. Whether the conduct of an election or declaration of result of an election extinguish the jurisdiction of regular Courts to entertain pre-election matters? (Grounds 2 and 5).
3. Whether the appellants lacked requisite locus standi to institute this case? (Ground 3).
4. Whether it is on all occasions that averments or depositions in affidavit must be controverted or challenged by

counter affidavit or further and better affidavit even when the affidavit contravened the provisions of Section 115 of the Evidence Act? (Ground 4).
5. Whether the lower Court ought to have granted the appellant’s claims, based on the weight of admissible evidence? (Ground 6).

In response, counsel for the 1st respondent distilled four (4) issues for the determination on this appeal. They are:
1. Whether the judgment of the trial Court delivered on the 20th of March, 2018 was in contravention of the provisions of Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) such as to render the said judgment a nullity. (Ground 1 of the Notice of Appeal).
2. Whether having regards to the facts and circumstances of the case, the trial Court could be faulted for striking out the Appellants’ Originating Summons on the ground that the Court lacked jurisdiction to adjudicate on the subject matter and reliefs sought by the Plaintiffs in this suit in light of the provisions of Section 251 and 285 of the CFRN 1999 (as amended). (Ground 5 of the Notice of Appeal).
3. Whether having regards to the facts and

circumstances of the case, the trial Court could be faulted for striking out the appellants’ Originating Summons on the ground that the appellants lacked the requisite locus standi to challenge the right of 2nd Respondent to substitute, sponsor or nominate the 1st Respondent as her flag bearer in place of a deceased gubernatorial candidate in 2015 Kogi Gubernatorial Elections. (Ground 4 of the Notice of Appeal).
4. Whether the judgment of the trial Court is against the weight of evidence. (Ground 6 of Appellant’s Notice of Appeal).

Counsel for the 4th Respondent, submitted three (3) issues for determination of this appeal, as follows:
1. Whether the judgment of the trial Court delivered on the 20th of March, 2018, was in contravention of the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground 1 of the Notice of Appeal).
2. Whether the trial Court was right in striking out the appellant’s Originating Summons on the ground that the Court lacked the jurisdiction to adjudicate on the subject matter and reliefs sought by the appellant. (Ground 5 of the Notice of Appeal).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; font-size: 14px;”></br<>

Whether the appellants lacked the requisite locus standi to have instituted this case. (Ground 4 of the Notice of Appeal).From the record before us in the instant appeal, this issue is relating to the election to the Office of the Governor of Kogi State in 2015 General Elections. This election was to usher in the 1st Respondent as the Governor for a tenure of four years. The tenure of the 1st respondent for the election in focus had been fully served. This action therefore has no utilitarian value to anyone any more. The appeal has become academic and the Courts do not deal with academic matters. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in their favour. See Plateau State v. Attorney-General of the Federation (2006) 1 SC (Pt. 1) 1, Amanchukwu v. FRN (2009) 8 NWLR (Pt. 1144) 475, Saraki v. FRN (2016) LPELR – 40013 (SC), Bamaiyi v. A.G. Fed., & Ors. (2001) LPELR – 730 (SC). A Court of law can only have jurisdiction to determine live issues between the parties. Dead issues that do not add to the rights and obligations of the parties are

not worth the judicial time of the Court. This appeal which is now academic must be and it is hereby struck out.

We do take notice of the fact that we are the penultimate Court and should we not have reached the decision that the appeal is academic, we need to look into the merit of the appeal.

Issues have been distilled for determination by the appellant, the 1st and 4th respondent. Of all the issue generated, the crux of this appeal is whether the trial Court was right in striking out the appellants’ Originating Summons on the ground that the Court lacked jurisdiction or whether the appellants lacked the requisite locus standi to have instituted the case.

See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, Akinnubi v. Akinnubi (1997) 2 NWLR (Pt. 486) 144.
In the case of Njoku v. Jonathan & Ors. (2015) LPELR – 24496 (CA), this Court held that:
The concept of locus standi is to protect the Court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they seek to pursue.
In the instant case, the appellants as plaintiffs approached the lower Court and took out an Originating Summons. Paragraphs 4 of the affidavit in support averred as follows.
4. That the Plaintiffs are registered voters of Kogi State who have a civic responsibility to nominate candidate for election who have emerged as flag bearer of registered political parties within Kogi State Constituency for Governorship election or Senatorial District Constituency or House of Representative Constituency or House of Assembly Constituency. The Plaintiffs Permanent Voters’ Cards now to me are attached and marked as Exhibits ‘RV1, RV1 (a) and ‘RV1 (b) respectively.
5. That the Plaintiff and other registered

voters in Kogi State constitute the electorate who have responsibility to nominate candidates and vote for candidates during election to usher in good governance, peace and order of Kogi State.
The learned trial judge in his judgment found as follows:
In this instant case, it is obvious that the Plaintiffs’ touted standing to initiate this action is that they are registered voters of Kogi State who constitute the electorate and have civic responsibility to nominate and vote for candidates at elections; whereas the 1st Defendant was nominated as Governorship Candidate without the Plaintiffs’ involvement. This is sufficiently captured in the averments in paragraphs 4, 5, 9 and 10 of the Affidavit in support of the Originating Summons.
However, this does not confer upon the Plaintiffs unique interest that places them above other registered voters in Kogi State, to feel entitled to maintain this action.
Furthermore, the Plaintiffs have not shown evidence of being members of the 2nd Defendant (APC), the qualification of whose Governorship candidate they have come out to challenge. It is however trite law that a non-member of a political

party cannot question the primaries of another party. See Shinkafi & Anor v. Yari (2016) 7 NWLR (Pt. 1511) 340.
Similarly, it is trite that even within the confine of the same political party, only those who participated in the party primaries can complain about the conduct of the primaries. See Prince John Emeka v. Lady Margery Okadigbo & 4 Ors (2012) 18 NWLR (Pt. 1331) S.C. 55 at page 88, paragraph G.; Shinkafi & Anor v. Yari & Ors (supra). The Plaintiffs in this instant case have not furnished evidence of having participated in the primaries of the 2nd Defendant that produced the 1st Defendant as Governorship candidate for Kogi State.
They therefore lack the locus standi to institute this Case.
In view of all the foregoing, I hold the respectful opinion that the Plaintiffs’ suit is incompetent on several grounds and this Court lacks the jurisdiction to entertain same. It is consequently struck out.
This decision of the lower Court cannot be assailed. An election matter, it is trite is sui generis that is “Of its own kind and class”. Issues of election are governed by the 1999 Constitution, Electoral Act, and the Practice Direction.

votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party, for the particular state.
The law here is very clear that nomination of candidates for Governorship election is from political parties and not registered voters within the Constituencies. The appellants were not the political parties nor were they contenders as Governorship candidates.
It is therefore obvious that the lower Court’s decision is in line with the law. It follows invariably that this appeal is lacking in merits if viewed from the substance. The appeal in that wise is dismissed.
Parties to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.

I am in complete agreement with

the reasoning and conclusion to the effect that the appeal is lacking in merit. In that wise, I also dismiss the appeal.
I make no order as to costs.

Appearances:

ABBAS YAHAYA, ESQ., with him, Y.D. MU’AZU, ESQ. For Appellant(s)

P.B. DAUDU, ESQ., with him, B.M. DIBIAH, ESQ. – for 1st Respondent.
2nd to 5th Respondents served but represented in Court For Respondent(s)