INYANG & ORS v. INEC & ORS
(2022)LCN/16874(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, December 07, 2022
CA/ABJ/CV/1120/2022
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. MR. JEREMIAH OTU INYANG 2. MR. MOSES AKPANUSOH 3. MR. UMOFFIA MONDAY PETER (For Themselves And As Representing All Other ‘Statutory Delegates’ Of The 2nd Defenant In Akwa Ibom State Who Were Not Opposed To The Suit) APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. PEOPLES DEMOCRATIC PARTY 3. RT. HON. DR. EKONG SAMPSON (For Himself And On Behalf Of 2 Other Senatorial Candidates Of The 2nd Defendant In Akwa Ibom State) 4. HON. ANIEKAN UMANA (For Himself And On Behalf Of 9 Other House Of Reps Candidates Of The 2nd Defendant In Akwa Ibom State) 5. RT. HON. KUFREABASI EDIDEM (For Himself And On Behalf Of 25 Other House Of Assembly Candidates Of The 2nd Defendant In Akwa Ibom State) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON JUSTICIABLE INTEREST
Justiciable interest can be equated with a cause of complaint, civil right or obligation fit for determination by a Court of law and a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine under Section 6 (6) (b) of the 1999 Constitution. See AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 and AKOMA vs. ONWUSIBE (2021) LPELR (55476) 1 at 25. A justiciable matter is one in which the plaintiff has a cause of action and not hypothetical disputes that are academic or moot: UWAZURUONYE vs. THE GOVERNOR OF IMO STATE (2012) LPELR (20604) 1 at 33-34. PER OGAKWU, J.C.A.
THE POSITION OF LAW ON LOCUS STANDI
The term locus standi denotes the legal capacity to institute proceedings in a Court of law. It is often used interchangeably with terms like standing, or title to sue. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before a Court and not on the issues he wants to have adjudicated. See ADESANYA vs. PRESIDENT OF NIGERIA (1981) 5 SC 112 or (1981) 2 NCLR 358, SUPERMARITIME (NIG) LTD vs. ESSENTIAL SEAFOODS LTD (2018) LPELR (45109) 1 at 4-5 and AFRICAN PRUDENTIAL REGISTRARS PLC vs. MACAULAY (2020) LPELR (49593) 1 at 15.
In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in Court. See ADENUGA vs. ODUMERU (2003) 8 NWLR (PT 821) 163 and ETALUKU vs. NBC PLC (2004) 15 NWLR (PT 896) 370 at 398. The fact that a person may not succeed in the action does not have anything to do with whether or not they have the standing to sue. See LAWAL vs. SALAMI (2002) 2 NWLR (PT 752) 687 and DANIYAN vs. IYAGIN (2002) 7 NWLR (PT 766) 346.
Given the fact that locus standi denotes the capacity to institute proceedings in a Court of law, it can be a matter of law only or a question of fact only. It is a matter of law when a statute specifically and mandatorily provides for the category of person or persons who can commence a particular action. It is a question of fact only when the law does not specifically provide for the category of person or persons who can sue. In this latter situation, the claimant in his pleadings avers to facts which show that he has the standing to sue. See ALBIN CONSTRUCTION vs. RAO INV. AND PROPERTIES LTD (1992) 1 NWLR (PT 219) 583 at 594. The claimant need not state that he has locus standi, all he needs to do is to proffer facts establishing his rights and obligations in respect of the subject matter of the suit. See OROGAN vs. SOREMEKUN (1986) 2 NSCC 1231 at 1240. PER OGAKWU, J.C.A.
FACTOR TO BE CONSIDERED IN DETERMINING WHETHER A CLAIMANT HAS LOCUS STANDI
In determining whether a claimant has locus standi, it is the cause of action that has to be examined: OLORIODE vs. OYEBI (1984) 5 SC 1 at 28; a cause of action being the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts giving rise to the right to sue and it consists of two elements:
(a) The wrongful act of the defendant which gives the claimant his cause of complaint and;
(b) The consequent damage.
See THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 669, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 and SAVAGE vs. UWECHIA (1972) 3 SC 214.
In establishing whether a claimant has locus standi, it is only the statement of claim or other originating process filed by the claimant that a Court can look at. See BUSARI vs. OSENI (1992) 4 NWLR (PT 235) 557 and GLOBAL TRANSPORT vs. FREE ENTERPRISES (2001) 2 SCNJ 224. Locus standi is determinable from a consideration of the totality of the facts proffered by the claimant in his processes, which facts have to be carefully scrutinized with a view to ascertaining whether it has disclosed sufficient interest to give the claimant standing and title to sue. See OWODUNNI vs. CELESTIAL CHURCH OF CHRIST (2000) 6 SC (PT III) 60 at 97, 101-102, IGBINEDION vs. OBASEKI (2014) LPELR (23208) 1 at 7-11 and EZE vs. PDP (2018) LPELR (44907) 1 at 22-23. PER OGAKWU, J.C.A.
CATEGORY OF PERSONS WHO HAVE LOCUS STANDI TO INSTITUTE AN ACTION IN COURT
In the diacritical circumstances of this matter, the law has provided for the category of person(s) who would have the locus standi to maintain an action contending that the primary election of a political party was not conducted in compliance with the Electoral Act or the Constitution or guidelines of a political party. The Appellants concede that their action is a pre-election matter. In this wise, Section 285 (14) of the 199 Constitution as amended provides:
“(14) For the purpose of this section, ‘pre-election matter’ means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The three Appellants are members of the Peoples Democratic Party (PDP), the 2nd Respondent herein. They are PDP Ward Chairmen for various Wards in Akwa Ibom State. By virtue of their position as Ward Chairmen, they are, by the Constitution of the Peoples Democratic Party, supposed to be “statutory delegates” who can vote at the primary elections of the 2nd Respondent. Preparatory to the primary elections of the 2nd Respondent in Akwa Ibom State which took place in May 2022, the 2nd Respondent issued a Press Statement to the effect that pursuant to Section 84 (8) of the Electoral Act, 2022, only those elected as delegates for the primary elections shall be eligible to vote at the primary elections. The 2nd Respondent proceeded and held its primary elections and the Appellants, who contend that they were eligible to vote by virtue of being “statutory delegates” under the 2nd Respondent’s Constitution, did not vote at the said primary elections.
The Appellants, contending that they had been disenfranchised, commenced an action before the Federal High Court in a representative capacity, for themselves and as representing all other “statutory delegates” of the Peoples Democratic Party in Akwa Ibom State who are not opposed to the suit. By their Amended Originating Summons in SUIT NO. FHC/ABJ/CS/750/2022: MR. JEREMIAH OTU INYANG & ORS vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS., the Appellants presented the following questions for determination:
“1. Whether by a proper construction and interpretation of the provisions of Section 84 (8) of the Electoral Act 2022, the Plaintiffs and others herein referred to as ‘statutory delegates’ of the 2nd Defendant are excluded from voting in a primary election of the 2nd Defendant.
2. Whether having regard to the combined provisions of Section 84 (8) of the Electoral Act, 2022, Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant; the 2nd Defendant can lawfully conduct indirect primary elections during the State Congress, for the election of candidates of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May 25th, 2022 in Akwa Ibom State and monitored by the 1st Defendant, without the requisite quorum of democratically elected party delegates.
3. Whether the Primary elections of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022, and Governorship held on Wednesday May 25th, 2022 in Akwa Ibom having been conducted in breach of Section 84 (8) of the Electoral Act 2022 and Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant are lawful.
4. Whether by the provisions of Section 84 (13) of the Electoral Act 2022, the 2nd Defendant having failed to comply with the provisions of Section 84 (8) of the Electoral Act 2022 and Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant, its candidates for election into the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022, and Governorship held on Wednesday May 25th, 2022 can be included in the General election by the 1st Defendant for all the particular positions in issue.”
Upon the determination of the said questions, the Appellants claimed the following reliefs:
“1. A Declaration of this Honourable Court that by the combined provisions of Sections 83 (3), 84 (8) of the Electoral Act, Articles 25; Part 10, Article 6 of the Constitution of the 2nd Defendant; the 2nd Defendant cannot lawfully conduct State Congress and Primary Election monitored by the 1st Defendant without the requisite quorum of democratically elected statutory and ad-hoc delegates.
2. A Declaration of this Honourable Court that by a proper interpretation of the provisions of Section 84 (8) of the Electoral Act, 2022, Statutory delegates of the 2nd Defendant who are democratically elected officials of the 2nd Defendant whose functions include being delegates to the State Congress are not excluded from voting in any primary election of the 2nd Defendant.
3. A Declaration of this Honourable Court that from the Primary elections of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May, 25th, 2022 in Akwa Ibom State of Nigeria having been conducted in breach of the Electoral Act 2022 and the Constitution of the 2nd Defendant by the disenfranchisement of the statutory delegates of the 2nd Defendant are defective, wrongful, illegal, null and void and of no legal effect whatsoever.
4. A Declaration of this Honourable Court that the 2nd Defendant having failed to comply with the provisions of the Electoral Act and the Constitution of the 2nd Defendant, in the conduct of the Primary election for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022 and Governorship held on Wednesday May 25th, 2022 the 2nd Defendant’s candidates that emerged from the said Primary elections shall not be included in the General election for the particular positions in issue.
5. An order of this Honourable Court restraining the 1st Defendant from accepting any list whatsoever of candidates purportedly nominated from the 2nd Defendant’s Primary elections for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022; Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May 25th, 2022.”
It is evident from the reliefs claimed by the Appellants, especially reliefs 3, 4 and 5 that the Appellants sought a declaration that the primary elections of the 2nd Respondent in Akwa Ibom State were conducted in breach of the Electoral Act, 2022 and the 2nd Respondent’s Constitution and therefore defective, wrongful, illegal, null and void and of no legal effect whatsoever. They consequently sought that the candidates who emerged from the said primary elections should not be included in the general elections and that the 1st Respondent, the Independent National Electoral Commission, should not accept any list of candidates emerging from the said primary elections.
The 2nd Respondent as well as the 3rd-5th Respondents filed preliminary objections challenging the competence of the action. The lower Court after hearing learned counsel on the processes filed upheld the preliminary objections, conclusively holding that the Appellants’ action was non-justiciable and that the Appellants do not have the requisite locus standi to maintain the action. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 17th October 2022. The judgment of the lower Court which was delivered on 6th October 2022 is at pages 692-751 of Volume 2 of the Records of Appeal, while the Notice of Appeal is at pages 752-762 of Volume 2 of the Records of Appeal.
The Records of Appeal was compiled and transmitted on 27th October 2022 and the Appellants filed their brief of Argument on 31st October 2022. The Appellants’ Brief was served on the 1st Respondent on 31st October 2022, on the 2nd Respondent on 2nd November 2022 and on the 3rd-5th Respondents on 1st November 2022. The 1st and 2nd Respondents did not file any brief of argument while the 3rd-5th Respondents filed a brief of argument on 7th November 2022. By Paragraph 12 of the Electoral Judicial Proceedings Practice Directions, 2022, a respondent has five (5) days from service of the appellant’s brief to file his brief of argument. The 1st and 2nd Respondents did not file any brief of argument, whether within the stipulated five (5) days or at all. In fact, the 1st Respondent was absent at the hearing and was not represented by counsel. The valiant efforts of the learned counsel for the 2nd Respondent to make oral submissions at the hearing of the appeal was not countenanced since it is settled law that a party who fails to file a brief of argument forfeits the right to address the Court orally vide THE ADMINISTRATOR & EXECUTOR ESTATE OF GEN. SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) LPELR (3152) 1 at 55, A-G ONDO STATE vs. A-G FEDERATION (2002) 9 NWLR (PT 772) 222 at 285 and EKPE vs. THE STATE (1994) LPELR (1088) 1 at 6.
Even though the 3rd-5th Respondents filed a brief of argument which learned counsel adopted and relied upon at the hearing of the appeal, the said brief was filed on the seventh day after service of the Appellants’ Brief on the 3rd-5th Respondents. The said brief having been filed out of time is incompetent and cannot propel any submissions on behalf of the 3rd-5th Respondents. It is accordingly struck out. The Appellants’ Reply Brief to the 3rd-5th Respondents Brief filed on 10th November 2022, now being destitute of a brief it is replying to is equally struck out. The concomitance is that the only valid brief before the Court is the Appellants’ Brief.
The fact that none of the Respondents filed a proper and valid brief connotes a concession of the facts in the Appellants’ Brief. This notwithstanding, the appeal must and will still be considered on the merits. The concession of the facts stated in the Appellants’ Brief is only in so far as the facts are borne out by the Records of Appeal. The Appellants still have to succeed or fail on the strength of their case. In UNITY BANK PLC vs. BOUARI (2008) LPELR (3411) 1 at 24-25, Ogbuagu, JSC stated:
“… the failure of a Respondent to file a reply brief is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own brief”
See also ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 17, ULEKE vs. KAKWA (2013) LPELR (20819) 1 at 7-8 and AMADI-WALI vs. PHEDC (2021) LPELR (54467) 1 at 3-4. I will now proceed to consider and resolve the appeal based on the Appellants’ Brief, which learned senior counsel for the Appellants adopted and relied upon at the hearing.
The Appellants distilled two issues for determination, videlicet:
I. WAS THE LEARNED TRIAL JUDGE RIGHT IN HOLDING THAT THE APPELLANTS’ SUIT WAS NOT JUSTICIABLE AND THAT IT BORDERS ON THE INTERNAL/DOMESTIC AFFAIRS OF THE 2ND RESPONDENT? (Culled from Grounds 1, 3 and 4 of the Notice of Appeal)
II. WAS THE LEARNED TRIAL JUDGE RIGHT IN HOLDING THAT THE APPELLANTS LACKED THE LOCUS STANDI TO INSTITUTE THIER [sic] SUIT ON THE GROUNDS THAT THEY WERE NOT ASPIRANTS AT THE PRIMARY ELECTIONS (Culled from Grounds 2, 5 and 6 of the Notice of Appeal).
The two issues formulated are rooted in the judgment of the lower Court and flow directly from the grounds of appeal. It is on the basis of the said issues that I will now consider and resolve this appeal.
ISSUE NUMBER ONE
Was the learned trial Judge right in holding that the Appellants suit was not justiciable and that it borders on the internal/domestic affairs of the 2nd Respondent?
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the lower Court was wrong in holding that the Appellants’ suit bordered on the internal/domestic affair of the 2nd Respondent and was not justiciable. It was posited that the Appellants only sought an interpretation of Section 84 (8) of the Electoral Act, 2022. It was further submitted that by Section 228 (a) of the 1999 Constitution, the National Assembly has power to make laws on the conduct of party primaries, congresses and conventions; pursuant to which Section 84 (8) of the Electoral Act, 2022 was made. It was therefore contended that it was no longer an internal/domestic affair of a political party. It was opined that it is the issue of leadership, administration or membership of a political party that remains the internal/domestic affair of a political party. The cases of ONUOHA vs. OKAFOR (1983) 2 SCNLR 244, AGI vs. PDP (2017) 17 NWLR (PT 1595) 386 and UFOMBA vs. INEC (2017) 13 NWLR (PT 1582) 175 were referred to. It was asserted that the issue of delegates to vote having been given statutory flavour was now justiciable.
The Appellants maintained that the lower Court misdirected itself as to the Appellants’ cause of action, which had nothing to do with the process of electing the 2nd Respondents ad hoc delegates. It was stated that it is the claim that determines the jurisdiction of the Court. The case of THE EXPORT-IMPORT BANK OF THE USA vs. NDIC (2021) LPELR-53339 (CA) at 15-16 was relied upon. It was contended that the lower Court arrived at a perverse finding/decision. The case of VIGEO POWER LTD vs. BAMISILE (2022) LPELR-58076 (CA) at 32 was called in aid on the meaning of a perverse finding/decision. Still in argument, the Appellants state that the lower Court held that the action was a pre-election matter, only to somersault and hold that it was not justiciable. It was asserted that where a political party breaches its own Constitution, that it was no longer an internal/domestic affair of the political party. The case of OSHIOMHOLE vs. SALIHU (2021) 8 NWLR (PT 1778) 380 at 401 was cited in support.
RESOLUTION OF ISSUE NUMBER ONE
In holding that the Appellants did not have a justiciable cause of action, the lower Court reasoned and held as follows at pages 727-728 of the Records:
“The questions posited for determination and the reliefs sought taking [sic] together with the facts deposed in the affidavit in support (that is the totality of the Plaintiffs’ case) clearly show that the substratum or meat of the Plaintiffs’ case is the determination of the delegates that should take part in the 2nd Defendant’s Akwa Ibom State Primaries, which in the Plaintiffs’ contention should include the Plaintiffs as ‘statutory delegates’ and the ad-hoc delegates.
Specifically, the Plaintiffs’ quest or discontent in not being allowed or excluded from participating as ‘statutory delegates’ in the 2nd Defendant’s primary election is the kernel of the Plaintiffs’ case. It is a complaint on the ‘Process’ in electing or the ‘delegates’ to elect the 2nd Defendant’s candidates in Akwa Ibom State for the various seats for the 2023 general elections.
Undoubtedly, it is a pre-primary election dispute and is purely an internal affairs of the 2nd Defendant. By the authorities, it is exclusively within the domestic affairs of the 2nd Defendant and a no-go area for the Courts.”
It is the Appellants’ contention that the lower Court in the above pericope misconstrued and misunderstood the substratum of their case which was merely for a judicial interpretation of Section 84 (8) of the Electoral Act, 2002. Without a doubt, the Appellants in the questions they presented for determination in their Originating Summons sought an interpretation of Section 84 (8) of the Electoral Act, but the complaint on which they founded their cause of action is that they were disenfranchised and wrongly and unlawfully excluded from voting at the primary election. In consequence, they claimed in their relief 2 that as “statutory delegates” they are not to be excluded from voting at any primary election. So, at the pith of the contest are the persons a political party can allow and accept as voting delegates at its primary election. Let me pause and state that while it is correct that the National Assembly, pursuant to Section 228 (a) of the 1999 Constitution, is empowered to make laws for the conduct of party primaries, congresses and conventions in order to ensure internal democracy within political parties; but there is nothing in the said provision which empowers the National Assembly to legislate on how a political party arrives at the delegates who would vote at the primaries, congresses and conventions of a political party. The Appellants’ efforts to build a statutory flavour out of the manner in which a political party settles for its delegates at a primary election does not resonate with me.
Justiciable interest can be equated with a cause of complaint, civil right or obligation fit for determination by a Court of law and a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine under Section 6 (6) (b) of the 1999 Constitution. See AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 and AKOMA vs. ONWUSIBE (2021) LPELR (55476) 1 at 25. A justiciable matter is one in which the plaintiff has a cause of action and not hypothetical disputes that are academic or moot: UWAZURUONYE vs. THE GOVERNOR OF IMO STATE (2012) LPELR (20604) 1 at 33-34. When properly contextualised, the Appellants seek to enforce a right to be delegates to vote at primary elections of the 2nd Respondent. See relief 2 already reproduced. It would seem to me that issues arising from who the delegates of a political party to vote at its primary election would be is an internal affair of the political party. What the law has enacted for and made justiciable is the actual conduct of the primary election to ensure that the candidate that emerges is a product of a democratic process. Who the participants in that democratic process are and how they are chosen remains purely the domestic affair and internal business of the political party.
Let me iterate that even though the Appellants cloaked their case to be an interpretation of Section 84 (8) of the Electoral Act, 2022, that without more, would be a hypothetical question that is academic or moot. The main cause of complaint is that the Appellants, as “statutory delegates” were not affected by the provisions of Section 84 (8) of the Electoral Act, 2022. So, denuded of the niceties of interpretation, the crux of the complaint remains who ought to be the delegates to vote at the primary election of a political party. This is a question that is entirely the internal business of a political party and a Court of law cannot adjudicate on the same.
See APC vs. MOSES (2021) 14 NWLR (PT 1796) 278 at 320, 325-327, ONUOHA vs. OKAFOR (1983) 2 SCNLR 244, AGI vs. PDP (2017) 17 NWLR (PT 1595) 38 and UFOMBA vs. INEC (2017) 13 NWLR (PT 1582) 172.
Ineluctably, the decision of the lower Court that the Appellants’ suit borders on the internal/domestic affairs of the 2nd Respondent and is therefore not justiciable is the correct decision. This issue number one is resolved in favour of the Respondents.
ISSUE NUMBER TWO
Was the learned trial Judge right in holding that the Appellants lacked the locus standi to institute their suit on the grounds that they were not aspirants at the primary elections?
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
It is the Appellants’ contention that the lower Court was wrong to strike out the Appellants’ case on the ground that they were not aspirants and that their case cannot be grounded under Section 84 (8) of the Electoral Act, 2022. It was stated that Appellants’ case was on their disenfranchisement from voting in the primary election and that the Appellants had shown sufficient interest and standing to sue. The case of A-G LAGOS STATE vs. EKO HOTELS LTD (2006) 18 NWLR (PT 1011) 378 at 450 was referred to.
It was opined that the Appellants’ cause of action was not rooted in Section 84 (14) of the Electoral Act, 2022; but rather in the 2nd Respondent’s Press Statement disenfranchising the Appellants in the primary election. It was stated that though the action was a pre-election matter, it was not brought under Section 84 (14) of the Electoral Act, 2022 as the Appellants never claimed to be aspirants. It was asserted that the apex Court had extended the scope of pre-election matters beyond Section 285 (14) of the 1999 Constitution to include any preparation or process embarked upon by a political party in preparation for an election. The cases of APC vs. UMAR (2019) 8 NWLR (PT 1675) 564 or (2019) LPELR-47296 (SC), OKEKE vs. APC– Appeal No: SC/CV/686/2021 delivered on 14th October 2021 and PDP vs. OGWULEGBO – Appeal No: SC/CV/471/2021 delivered on 11th April 2022. It was consequently maintained that the Appellants did not have to be aspirants to bring their action since their complaint antedates the primary election.
Still in argument, it was posited that the Appellants also sued the 1st Respondent as an agency of the Federal Government and sought reliefs 4 and 5 against them which the lower Court could entertain under Section 251 (1) (r) of the 1999 Constitution. It was further submitted that recent decisions of the apex Court has granted locus standi to non-aspirants in pre-election disputes. The Court was urged to uphold the locus standi of the Appellants. It was conclusively submitted that the Court should invoke its powers under Section 15 of the Court of Appeal Act, hear the merits of the action as all the necessary materials are in the Records of Appeal; and to enter judgment for the Appellants.
RESOLUTION OF ISSUE NUMBER TWO
The term locus standi denotes the legal capacity to institute proceedings in a Court of law. It is often used interchangeably with terms like standing, or title to sue. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before a Court and not on the issues he wants to have adjudicated. See ADESANYA vs. PRESIDENT OF NIGERIA (1981) 5 SC 112 or (1981) 2 NCLR 358, SUPERMARITIME (NIG) LTD vs. ESSENTIAL SEAFOODS LTD (2018) LPELR (45109) 1 at 4-5 and AFRICAN PRUDENTIAL REGISTRARS PLC vs. MACAULAY (2020) LPELR (49593) 1 at 15.
In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in Court. See ADENUGA vs. ODUMERU (2003) 8 NWLR (PT 821) 163 and ETALUKU vs. NBC PLC (2004) 15 NWLR (PT 896) 370 at 398. The fact that a person may not succeed in the action does not have anything to do with whether or not they have the standing to sue. See LAWAL vs. SALAMI (2002) 2 NWLR (PT 752) 687 and DANIYAN vs. IYAGIN (2002) 7 NWLR (PT 766) 346.
Given the fact that locus standi denotes the capacity to institute proceedings in a Court of law, it can be a matter of law only or a question of fact only. It is a matter of law when a statute specifically and mandatorily provides for the category of person or persons who can commence a particular action. It is a question of fact only when the law does not specifically provide for the category of person or persons who can sue. In this latter situation, the claimant in his pleadings avers to facts which show that he has the standing to sue. See ALBIN CONSTRUCTION vs. RAO INV. AND PROPERTIES LTD (1992) 1 NWLR (PT 219) 583 at 594. The claimant need not state that he has locus standi, all he needs to do is to proffer facts establishing his rights and obligations in respect of the subject matter of the suit. See OROGAN vs. SOREMEKUN (1986) 2 NSCC 1231 at 1240.
In determining whether a claimant has locus standi, it is the cause of action that has to be examined: OLORIODE vs. OYEBI (1984) 5 SC 1 at 28; a cause of action being the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts giving rise to the right to sue and it consists of two elements:
(a) The wrongful act of the defendant which gives the claimant his cause of complaint and;
(b) The consequent damage.
See THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 669, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 and SAVAGE vs. UWECHIA (1972) 3 SC 214.
In establishing whether a claimant has locus standi, it is only the statement of claim or other originating process filed by the claimant that a Court can look at. See BUSARI vs. OSENI (1992) 4 NWLR (PT 235) 557 and GLOBAL TRANSPORT vs. FREE ENTERPRISES (2001) 2 SCNJ 224. Locus standi is determinable from a consideration of the totality of the facts proffered by the claimant in his processes, which facts have to be carefully scrutinized with a view to ascertaining whether it has disclosed sufficient interest to give the claimant standing and title to sue. See OWODUNNI vs. CELESTIAL CHURCH OF CHRIST (2000) 6 SC (PT III) 60 at 97, 101-102, IGBINEDION vs. OBASEKI (2014) LPELR (23208) 1 at 7-11 and EZE vs. PDP (2018) LPELR (44907) 1 at 22-23.
Now, in resolving issue number one against the Appellants, I held that the decision of the lower Court that the Appellants’ suit borders on the internal/domestic affairs of a political party and that it is not justiciable is the correct decision. The concomitance is that since the action is not justiciable, the Appellants cannot be heard to contend that their civil rights and obligations have been or are in danger of being infringed in order for them to have sufficient legal interest to seek redress in Court. This being so, the Appellants cannot have the locus standi, standing or title to sue in respect of a cause of action that is not justiciable. See IJELU vs. LSDPC (1992) 9 NWLR (PT 266) 414 at 423, INEC vs. OGBADIBO LOCAL GOVT (2015) LPELR (24839) 1 at 22 and OGHENEOVO vs. THE GOVERNOR OF DELTA STATE (2022) LPELR (58062) 1 at 33-34. Put differently, in order for a litigant to have locus standi, the claim must disclose a legal or justiciable right, a sufficient or special interest adversely affected and a justiciable cause of action: ADESANYA vs. PRESIDENT (supra), ADEWUMI vs. A-G, EKITI STATE (2002) 9 NSCQR 66 at 102-103 and INAKOJU vs. ADELEKE (2007) 29 NSCQR (PT II) 958 at 1068. In splice, in the absence of a justiciable cause of action; the Appellants cannot be ascribed with locus standi. See ALLIANCE INTERNATIONAL LTD vs. SAAM KOLO INTERNATIONAL ENTERPRISES LTD (2022) LPELR (57984) 1 at 35-36, AJAYI vs. ADEBIYI (2012) LPELR (7811) 1 at 42-43 and B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 85-86.
The matter does not end there. I have already set out the reliefs claimed by the Appellants. I will once again specifically reproduce reliefs 3, 4 and 5 thus:
“3. A Declaration of this Honourable Court that from the Primary elections of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May, 25th, 2022 in Akwa Ibom State of Nigeria having been conducted in breach of the Electoral Act 2022 and the Constitution of the 2nd Defendant by the disenfranchisement of the statutory delegates of the 2nd Defendant are defective, wrongful, illegal, null and void and of no legal effect whatsoever.
4. A Declaration of this Honourable Court that the 2nd Defendant having failed to comply with the provisions of the Electoral Act and the Constitution of the 2nd Defendant, in the conduct of the Primary election for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022 and Governorship held on Wednesday May 25th, 2022 the 2nd Defendant’s candidates that emerged from the said Primary elections shall not be included in the General election for the particular positions in issue.
5. An order of this Honourable Court restraining the 1st Defendant from accepting any list whatsoever of candidates purportedly nominated from the 2nd Defendant’s Primary elections for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022; Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May 25th, 2022.”
By the above reliefs, the Appellants seek to have the primary elections of the 2nd Respondent declared defective, wrongful, illegal, null and void and of no legal effect whatsoever for having been conducted in breach of the Electoral Act, 2022 and the Constitution of the 2nd Respondent. They consequently seek an order predicated on this, that the 1st Respondent should not accept the list of candidates that emanated from the said primaries. Let me restate that locus standi can be a matter of law only or a question of fact. It is a matter of law when a statute has specifically and mandatorily provided for the category of person or persons who can commence a particular action.
In the diacritical circumstances of this matter, the law has provided for the category of person(s) who would have the locus standi to maintain an action contending that the primary election of a political party was not conducted in compliance with the Electoral Act or the Constitution or guidelines of a political party. The Appellants concede that their action is a pre-election matter. In this wise, Section 285 (14) of the 199 Constitution as amended provides:
“(14) For the purpose of this section, ‘pre-election matter’ means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
Furthermore, Section 84 (14) of the Electoral Act, 2022 stipulates:
“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 have 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 for redress.”
So, the law has provided for the category of person(s) who can ventilate the cause of action pursued by the Appellants in this matter, id est, an aspirant. The Appellants are not aspirants; by their own showing they are Ward Chairmen of the 2nd Respondent. Accordingly, since they are not among the category of person(s) that the law has imbued with locus standi in this regard, they lack the requisite locus standi, standing or title to maintain the action. Since the Appellants do not have the locus standi, the Court would not have the jurisdiction to entertain the action. See DADA vs. OGUNSANYA (1992) LPELR (908) 1 at 24-25, EMEZI vs. OSUAGWU (2005) LPELR (1130) 1 at 16-17 and DANIEL vs. INEC (2015) LPELR (24566) 1 at 47.
The lower Court therefore arrived at the correct decision when it held as follows at pages 740-741 of Volume 2 of the Records of Appeal:
“The Plaintiffs’ suit, as earlier found in this judgment, questioned amongst other things, the exclusion of the Plaintiffs as statutory delegates in the 2nd Defendant’s primary elections held between 22nd and 25th of May, 2022. It is a challenge of the nomination or sponsorship of a political party’s candidate for elective office. Such a challenged [sic] is prescribed strictly by legislation, to wit Section 84 (14) of the Electoral Act, 2022. For an aggrieved person to have locus standi to challenge the nomination or sponsorship of a candidate, such a person must come under the narrow prism of Section 84 (14) of the Electoral Act, 2022 which provides that:
‘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 have 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 for redress’.
Thus to have locus standi, the person must be an ‘aspirant’. An ‘aspirant’ by Section 152 of the Electoral Act, 2022, ‘means a person who aspires or seeks or strives to contest an election to a political office.’
By Section 84 (14) of the Electoral Act, 2022, it is an ‘aspirant’ who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election’ that may apply to this Court for redress.
The Plaintiffs conceded that they are not aspirant, have not contested any primary election conducted by the 2nd Defendant, are not seeking or sought any elective post in any primary election and has [sic] not sought to be declared the winners of the primary election or candidates of the 2nd Defendant for any elective office.
So then wherein lei the Plaintiffs’ locus standi?
I cannot find any.”
There is no basis to interfere with the correct decision of the lower Court.
As I near the terminus for this judgment, let me brevi manu, deal with the Appellants’ invitation for the Court to invoke its powers under Section 15 of the Court of Appeal Act and hear the case on the merits. In order for this Court to invoke its powers under Section 15 of the Court of Appeal Act, the lower Court must have the legal power to adjudicate over the matter before the appellate Court can entertain it: EZEIGWE vs. NWAWULU (2010) LPELR (1201) 1 at 48-50, AGBAKOBA vs. INEC (2008) LPELR (232) 1 at 80, and OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 639-640. I have already held that the Appellants’ lack of locus standi affected the jurisdictional competence of the Court to entertain the action. Accordingly, this Court cannot exercise its powers under Section 15 of the Court of Appeal Act to hear the matter on the merits since the lower Court does not have jurisdiction to entertain the action. This issue number two is resolved against the Appellants.
The two issues nominated for determination have been resolved against the Appellants. This signposts that the appeal is devoid of merit. The appeal therefore fails and it is hereby dismissed. The decision of the lower Court, Coram Judice: Obiora Atuegwu Egwuatu, J., delivered on 6th October, 2022 is hereby affirmed. There shall be no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. I agree with his conclusions that the appeal is devoid of merit and it is consequently dismissed.
The decision of the lower Court delivered on 6th October, 2022 is hereby affirmed.
I abide by the consequential Orders.
DANLAMI ZAMA SENCHI, J.C.A.: I was in conference with my learned brothers that heard this appeal. I also had the privilege of reading in draft before now, the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. The lead judgment substantially captured and reflected all the views I expressed during the conference and I entirely agree with the more detailed and succinct resolution of issues and finding made in the lead judgment.
I however want to chip in on the Appellant issue one (i) for determination thus:-
“Was the learned trial Judge right in holding that the Appellants’ suit was not justiciable and that it borders on the internal/domestic affairs of the 2n d Respondent?
I have perused the questions submitted before the trial Court for determination as well as the Reliefs claimed by the Appellants. The trial Court at pages 727-728 of the Record of Appeal held to the effect that “undoubtedly, it is a pre-primary election dispute and is purely an internal affairs of the 2nd Defendant.” It would be difficult to fault the finding of the trial Court in view of the questions sought for determination, the reliefs and Affidavit evidence which boils down to the fact that the 2nd Respondent exclude the Appellants as delegates to vote at the primaries of the 2nd Respondent’s congresses and conventions. To determine the 2nd Respondent’s delegates to participate in its primaries, congresses or convention, it is my humble view that Section 84(8) of the Electoral Act, 2022 does not envisage as to who shall be the delegates to vote at the primaries, congresses, meetings or convention of a political party. Section 84(8) provides thus:-
“A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rule the procedure for the democratic election of delegates to vote at the convention, congress or meeting.”
By this provision, the political party shall outline in its constitution and rule of procedure in electing delegates, that is persons that would vote at the convention, congress or meeting, which as rightly held by the trial Court as a pre-primary election, is certainly an internal/domestic affair of that political party and in this case, the 2nd Respondent. Thus, being an internal/domestic affair of the 2nd Respondent, then the trial Court was firmly right and correct that the cause of action of the Appellants is not justiciable and hence, it lacked jurisdiction to entertain or adjudicate on the matter. See APC V MOSES (2021)14 NWLR (pt. 1796) 278 AT 320, 325-327, AGI V PDP, (2017) 17 NWLR (pt. 1595) 38 and UFOMBA V INEC (2017) 13 NWLR (pt. 1582172.
Having said the above, I adopt as mine, the detailed reasoning and finding in the lead judgment of my brother, OGAKWU, JCA that this appeal lacks merit and it is dismissed by me as well.
The judgment of the Federal High Court sitting in Abuja, in Suit No. FHC/ABJ/CS/750/2022 delivered on 6th day of October, 2022 by OBIORA ATUEGWU EGWUATU, J is hereby affirmed.
No Order as to costs.
Appearances:
Chief Gordy Uche, SAN with him, I. S. Utuk & Francis Nsiegbunam, Esq. For Appellant(s)
Ikechukwu Duru, Esq. with him, Ms. Edidiong Ekpo for the 2nd Respondent.
Ochai J. Otokpa, Esq. (holding the brief of Emmanuel Akpan, Esq.) for the 3rd-5th Respondents. For Respondent(s)
