IWOK & ORS v. INEC & ORS
(2022)LCN/16946(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, September 21, 2022
CA/ABJ/CV/826/2022
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. HON. FRIDAY IWOK & 25 ORS (For Themselves And On Behalf Of Other Members Of The Peoples Democratic Party In Akwa Ibom State Who Were Aspirants For The Akwa Ibom State Ward Ad-Hoc Delegates Election And Who Are Not Opposed To This Appeal) APPELANT(S)
And
INDEPENDENT NATIONAL ELECTORAL COMMISSION & 330 ORS RESPONDENT(S)
RATIO
THE POSITION OF LAW ON LOCUS STANDI
Very recently, the Supreme Court in AYORINDE V. KUFORIJI (2022) ELR – 3597 (SC) made a pronouncement on what locus standi denotes;
It is the capacity the plaintiff has to institute proceedings in a Court of Law to seek a determination of his civil rights against the defendant. Plaintiff has to demonstrate his locus standi by establishing that he has a justiciable or reasonable cause of action against the defendant.
The next issue is, does the Appellants have the locus standi to originate this suit at the lower Court?
The Supreme Court recently in SEN UGOCHUKWU UBA V. VALENTINE OZIGBO (2022) 10 NWLR 431 stated viz;
Before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended) and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries…. let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra) the aspirant must show to the Court that the National Executive Committee of the Political Party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election. PER MUSALE, J.C.A.
DEFINITION OF AN “ASPIRANT”
Tsammani, JCA in AMB MJZ ABUBAKAR WAZIRI V. PDP & ANR – Unreported Appeal No: CA/ABJ/CV/823/2022 delivered on 19th September, 2022 opined that;
An “aspirant” is a person who expressed interest in contesting the election for the political party office in issue, he purchased the prescribed forms and made all necessary payments of prescribed fees, filed and submitted the forms and was duly screened and cleared to participate in the primary election. Finally, that he infact participated in the scheduled primary election conducted by the political party. All the above enumerated facts must be shown to co-exist before a person can be said to be an aspirant. See ALFA V PDP & ORS (2019) LPELR – 47685 (CA) and unreported judgment of this Court in Appeal No: CA/E/200/2022 – SEN JOSEPH OBINNA OGBA V. CHIEF CHUKWUMA ODII IFEANYI & ORS delivered on 1st September, 2022. PER MUSALE, J.C.A.
THE POSITION OF LAW ON CAUSE OF ACTION
In OKOLI & ORS V. ONWUGBUFOR (2018) LPELR – 46660 (CA) this Court per Georgewill, JCA had reason to pronounce on reasonable cause of action in these words;
What then in law is a cause of action and when is a cause of action said to be reasonable?
A cause of action is a situation or state of facts that entitles a party to maintain an action in Court.
A cause of action is thus defined as the entire set of facts or circumstances giving rise to an enforceable claim.
See Savage V. Uwechia (1972) 3 SC 213. See also Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449; United Bank for Africa Plc V. BTL Industries Ltd (2004) 18 NWLR (Pt. 904) 180; Adesina V. Ojo (2012) 10 NWLR (PT 1309) 562; Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 AT p. 169; Gbadehan V. Kiladejo (2012) 16 NWLR (Pt. 326) 399; Alhaji Abudu W. Akibu Vs. Oduntan (2000) 10 WRN 48; Omin III V. The Governor, Cross River State (2007) 41 WRN 158 AT pp. 186 – 187. In Shell Petroleum Development Company Nigeria Ltd. Vs Nwawka (2003) 1 S. C. (Pt. II) 127 AT p. 138, the Supreme Court per Ayoola, JSC, held inter alia thus:
Facts do not by themselves constitute a cause of action. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligation of the defendant. It must then go on to set out facts constituting infraction of plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. In the instant case, the respondent did not follow up with a demonstration of how his pleadings had complied with the guidelines.
And in Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) AT p. 376, the Supreme Court per Ogwuegbu, JSC., had succinctly stated what would amount to a reasonable cause of action inter alia thus:
A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (statement of claim) are considered. So long as the statement of claim discloses some cause of action or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak and not likely to succeed, is no ground for striking it out or dismissing it. PER MUSALE, J.C.A.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is against various rulings of Hon. Justice Obiora Atuegwu Egwuatu of the Federal High Court Abuja, delivered on the 15th day of July, 2022 in Suit No. FHC/ABJ/CS/606/2022.
The said rulings are:
1. On 2nd Respondent and 3rd to 331st Respondents Notices of Preliminary Objection to the Appellants Originating Summons challenging the jurisdiction of the lower Court to entertain the suit of the Plaintiffs/Appellants. Both objections were filed on 24th May, 2022.
2. On 2nd Respondent’s Motion for Stay of Execution filed on 19th May, 2022 seeking a stay of the order to maintain status quo ante bellum made by the lower Court on 18th may, 2022.
3. On Appellants’ Motion to set aside the 2nd Respondent’s Primary Election conducted in violation of the lower Court’s Order of 18th May, 2022 which directed parties to maintain status quo ante bellum.
The 2nd respondent’s objection in the main sought for;
An order of this Honourable Court dismissing and/or striking out this suit in limine and declining jurisdiction to entertain and adjudicate thereupon on the grounds inter alia;
1. The plaintiffs/respondents (plaintiffs) lacks the requisite locus standi to institute and/or maintain this suit;
2. The suit is irredeemably incompetent, the plaintiffs having completely failed to raise any issue for determination in the accompanying written address to their Originating Summons;
3. The subject matter of this suit is within the internal affairs of the Applicant thus the Court cannot adjudicate on same.
The 3rd to 331st Respondents’ main objection sought for;
1. An order striking out this suit for want of jurisdiction to adjudicate on same.
According to the Appellants, contrary to the provisions of the 2nd Respondent’s Constitution and Guidelines, the State Chapter/Executives of the 2nd Respondent in Akwa Ibom State, usurped the powers/duties of the party’s Ward Executives and conducted the 2nd Respondent’s Ward Ad-Hoc Delegates Election of 30th April, 2022. That the 2nd Respondent, without prior notice to the Appellants (who obtained Nomination and Expression of Interest forms and met all other requirements) secretly screened and cleared some selected/”anointed” aspirants for the election, declared that such cleared aspirants are the only persons eligible to contest the Ward Ad-Hoc Delegates Election, and thereby excluded the Appellants from contesting the said Election. On 18th May, 2022, the trial Court made an Order directing parties to maintain status quo ante bellum, pending the hearing and determination of the substantive suit.
That the legality of the Ward Ad-Hoc Delegates Election of 30th April, 2022 and the list of the purportedly elected Ad-Hoc Delegates arising therefrom form the pillar and subject matter of the aforementioned suit and the challenge by the Apellants was the genesis of the Preliminary Objections.
The learned trial Judge serially dealt with the objections raised and finally concluded that the notice of preliminary objections of the defendants/respondents have merits. He resolved the sole issue for determination in favour of the defendants/respondents against the plaintiffs/appellants. The preliminary objections were upheld.
Dissatisfied with the ruling, the Appellants filed ten grounds of appeal.
ISSUES FOR DETERMINATION
The Appellants’ learned counsel Nwatu Esq on behalf of Raji, SAN adopted the brief of the Appellants that was deemed properly filed on 19/08/22. In the brief, they relied on the Notice of Appeal filed on 26/07/2022 and submitted the following Issues for determination as couched;
1. Whether the failure of the 2nd Respondent to file a Memorandum of Conditional Appearance together with its Notice of Preliminary Objection is not fatal and vitiates the said Notice of Preliminary Objection. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the trial Court was right when it held that the Appellants not being Ward Executives of the Ward Chapters of the 2nd Respondent in Akwa Ibom State, they lack the legal standing to challenge the wrong allegedly done against the Ward Executives. (Distilled from Ground 2 of the Notice of Appeal).
3. Whether the trial Court was right when it held that the Appellants’ Counsel did not join issues with the 2nd Respondent on its contention that the Appellants lack the locus standi to challenge the wrong allegedly done against the 2nd Respondent’s Ward Executives in Akwa Ibom State. (Distilled from Ground 3 of the Notice of Appeal).
4. Whether the trial Court rightly relied on the cases of the Wushishi v. Imam (2017) 18 NWLR (Pt. 1597) 175 and Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 to hold that the Appellants have no locus standi to institute the action leading to the instant appeal. (Distilled from Ground 4 of the Notice of Appeal).
5. Whether the trial Court was right when it relied on the case of APC v. Moses (2021) 14 NWLR (Pt. 1796) 278 and Ufomba v. INEC (2017) 13 NWLR (Pt. 1582) 175 to hold that the Appellants’ suit border on the internal/domestic affairs of the 2nd Respondent which are non-justiceable. (Distilled from Ground 5 of the Notice of Appeal).
6. Whether the suit leading to the instant appeal does not disclose a reasonable cause of action. (Distilled from Ground 6 of the Notice of Appeal).
7. Whether the trial Court was right when it granted the 2nd Respondent’s motion for Stay of Execution on the ground that there is a valid Notice of Appeal filed by the 2nd Respondent against the lower Court’s Order of 18th May, 2022 directing parties to maintain status quo ante be!lurn (Distilled from Grounds 7 and 8 of the Notice of Appeal).
8. Whether the trial Court was right when it held that the 2nd Respondent’s appeal will be rendered nugatory if it succeeds, in the event that the 2nd Respondent’s Application for Stay of Execution is refused (Distilled from Ground 9 of the Notice of Appeal).
9. Whether the trial Court was right when it refused/dismissed the Appellants’ application to set aside the 2nd Respondent’s primary election held in violation of the lower Court’s Order of 18th May, 2022 which directed parties to maintain status quo ante bellum, pending the hearing and determination of the substantive suit. (Distilled from Ground 10 of the Notice of Appeal).
The learned senior counsel to the 2nd Respondent Paul Usoro, SAN in the brief of argument filed on 29/08/22 distilled three issues for the determination of the appeal. They are;
1. All the facts and circumstances of this appeal considered, was the trial Court right in upholding the 2nd Respondent’s Notice of Preliminary Objection which was based on grounds of jurisdiction?
2. Is the appellants’ appeal hereof against the grant of the 2nd Respondent’s Stay of Execution Motion by the trial Court not entirely academic in nature, given the ruling of the trial Court in the 2nd Respondent’s Preliminary Objection and the substantive judgment of the trial Court in the Appellants’ Amended Originating Summons, both of which were against the appellants? In any case, all the facts and circumstances of this appeal considered, was the trial Court right in granting the 2nd Respondent’s Stay of Execution Motion?
3. Is the Appellants’ appeal hereof against the dismissal by the trial Court of the appellant’s Motion for the setting aside of the 2nd Respondent’s AKS primaries not entirely academic in nature, given the ruling of the trial Court in the 2nd Respondent’s Preliminary Objection and the substantive judgment of the trial Court in the Appellant’s Amended Originating Summons, both of which were against the Appellant? In any case, all the facts and circumstances of this appeal considered, was the trial Court right in dismissing the appellant’s said motion for setting aside of the 2nd Respondent’s AKS primaries?
Finally, the brief of learned counsel to the 3rd to 331st Respondents filed on the 29/08/22 was prepared by Utibe Nwoko Esq on behalf of Uwemedimo Nwoko, SAN. Nine issues were formulated;
1. Whether the failure of the 2nd Respondent to file a Memorandum of Conditional Appearance together with its Notice of Preliminary Objection is not fatal and vitiates the said Notice of Preliminary Objection.
2. Whether the trial Court was right when it held that the appellants not been Ward Executives of the Ward Chapters of the 2nd Respondent in Akwa Ibom State, they lack the legal standing to challenge the wrong allegedly done against the Ward Executive.
3. Whether the trial Court was right when it held that the appellant’s counsel did not join issues with the 2nd Respondent on its contention that the appellants lack the locus standi to challenge the wrong allegedly done against the 2nd Respondent’s Ward Executives in Akwa Ibom State.
4. Whether the trial Court rightly relied on the cases of Wushishi V. Imam (2017) 18 NWLR (Pt. 1597) 175 and Daniel V. INEC (2015) 9 NWLR (Pt. 1463) 113 to hold that the appellants have no locus standi to institute the action leading to the instant appeal.
5. Whether the trial Court was right when it relied on the case of APC V. Moses (2021) 14 NWLR (Pt. 1796) 278 and Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 175 to hold that the appellants’ suit border on the internal/domestic affairs of the 2nd Respondent which are non-justiceable.
6. Whether the suit leading to the instant appeal does not disclose a reasonable cause of action.
7. Whether the trial Court was right when it granted the 2nd respondent’s motion for stay of execution on the ground that there is a valid notice of appeal filed by the 2nd respondent’s against the lower Court’s order of 18th may, 2022 directing parties to maintain status quo ante bellum.
8. Whether the trial Court was right when it held that the 2nd respondent’s appeal will be rendered nugatory if it succeeds, in the event that the 2nd respondent’s application for stay of execution is refused.
9. Whether the trial Court was right when it refused/dismissed the appellant’s to set aside the 2nd respondent’s primary election held in violation of the lower Court’s order of 18th May, 2022 which directed parties to maintain status quo ante bellum, pending the hearing and determination of the substantive suit.
Now, to the submissions of learned counsel on the issues formulated starting with the Appellants.
The learned counsel to the Appellants submitted that the 2nd Respondent filed a Notice of Preliminary Objection challenging the competence of the Appellants’ suit and invariably the jurisdiction of the trial Court to entertain same. By way of a Preliminary Point of Law, the Appellants argued that the 2nd Respondent’s Preliminary Objection is fundamentally defective and in consequence, the reliefs contained therein were not grantable by the Honourable trial Court for failure of the 2nd Respondent to file a Memorandum of Conditional Appearance as mandatorily provided by Order 29 of the Federal High Court Rules, 2019.
However, the lower Court relied on Order 26 of the Federal High Court Rules and held that filing of a Memorandum of appearance is discretionary and not mandatory. But Order 29 of the Federal High Court Rules, 2019, provides that parties, who wish to dispute the Court’s jurisdiction, must file a memorandum of Appearance. That Order 29 of the Federal High Court Rules, 2019 are mandatory and non-compliance with these mandatory provisions is fatal. It follows therefore that, where a party seeks to challenge the jurisdiction of Court, such application must be predicated on an existing and duly filed Memorandum of Appearance stating that such defendant is appearing conditionally. See INAKOJU V. ADELEKE (2007) 4 NWLR (Pt. 1025) P. 423 and DREXEL ENERGY AND NATURAL RESOURCES LTD v. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (Pt. 1119) 388 @ 431, the Supreme Court emphatically re-stated the law that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks jurisdiction to entertain the same. See also the cases of SYSTEM APPLICATIONS PRODUCTS (NIG.) LTD. V. CBN (2004) 15 NWLR (Pt. 897) 655 and BENIN RUBBER PRODUCERS COOPERATIVE MARKETING UNION LTD. V. OJO (1997) 9 NWLR (Pt. 521) 388 AT 403.
The learned counsel seriously opposed the stand taken by the lower Court regarding the memorandum of conditional appearance filed by the 2nd Respondent attached to Exhibit PDP 1. He added that it was filed without instruction.
Counsel submitted that their case is on the wrong done to the Appellants as members of the 2nd Respondent and aspirants for the 2nd Respondent’s Ward Ad-Hoc Delegates Election of 30th April, 2022 in Akwa Ibom State. That the lower Court wrongly applied the decision of Wushishi V. Imam (supra) and Daniel V. INEC (supra) to reach the wrong conclusion that the Appellants lacked locus standi to institute the case having not participated in the election. Counsel contended that the Appellant’s case is on pre-primary as opposed to post-primary election. That the crux of Appellant’s case is unlawful and unconstitutional exclusion by the 2nd Respondent from contesting as Ad-Hoc Delegates at the party’s Ward election.
Counsel further submitted that the Appellants bought Nomination/Expression of interest forms with their receipts and that that gives them the locus standi.
Counsel also raised issue of fair hearing. That the Appellants were not notified nor invited for screening for the Ward Ad-Hoc Delegates election, thus a breach of their right under Section 36(1) of the 1999 Constitution (as amended). That this also vest locus standi to the Appellants, ADIGUN V. A G OYO STATE (1987) 1 NWLR (Pt. 53) 678 and OTAPO V. SUNMONU (1987) 2 NWLR (Pt. 58) 587 among other decisions.
Counsel continued that the lower Court wrongly relied on APC V. MOSES (supra) and UFOMBA V. INEC (supra) to hold that the Appellants’ issues are internal/domestic affairs of the 2nd Respondent. On the supremacy of the 1999 Constitution, he relied on ADMIRAL NYAKO V. DR. ARDO (2013) LPELR – 20848.
Learned counsel made submissions on reasonable cause of action raising and submitting on locus standi and breach of right to fair hearing, emphasizing that it is beyond the internal/domestic affairs of a political party.
Counsel referred to the record that on 18th/05/22, the lower Court made an order viz;
“That it will be in the interest of justice for the parties to maintain status quo ante bellum pending the hearing and determination of this suit.”
That in breach of the said order, the 2nd Respondent went ahead to conduct its primary election for House of Assembly, House of Representatives, Senate and Gubernatorial seats in Akwa Ibom State on the 22nd, 23rd 24th and 25th May, 2022. That is trite that the order of the lower Court is still subsisting until set aside, even if it is perverse or even void, KULAK TRADES PLC V. TUG BOAT (2012) ALL FWLR (Pt. 620) 1307.
The learned counsel submitted that they filed a Motion on Notice on 25/05/22 praying for an order setting aside the primary election conducted by the 2nd Respondent in Akwa Ibom State on 22nd, 23rd and 24th May, 2022 or any other date and the outcome thereof. That the 2nd to 331st Respondents proceeded to take steps and conducted primary elections in total disregard and violation of the order of the lower Court made on 18/05/22 which directed parties in the suit to maintain status quo ante bellum. He urged the Court to reprimand the 2nd to 331st Respondents and set aside the primary elections conducted on the 22nd, 23rd and 24th of May, 2022 in violation of the order of the lower Court relying on REGISTERED TRUSTEES APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (Pt. 158) 514 AT 537 and PETER OBI V. INEC (2007) 11 NWLR (Pt. 1046) 565 AT 672.
Learned counsel urged the Court to allow the appeal as being meritorious viz;
1. The failure of the 2nd Respondent to file a memorandum of conditional appearance together with its Notice of Preliminary Objection is fatal and vitiates the said Notice of Preliminary Objection.
2. The appellants have locus standi to institute the suit leading to this appeal.
3. The case at hand falls outside the internal/domestic affairs of the 2nd Respondent and is therefore justiceabe (sic).
4. The suit leading to this appeal discloses a reasonable cause of action.
5. The trial Court ought to have dismissed the 2nd Respondent’s motion for Stay of Execution as same is founded a non-existent appeal.
6. The trial Court was wrong when it held that the 2nd Respondent’s appeal will be rendered nugatory if it succeeds, as there is no appeal at all upon which the said motion for stay stands.
7. The trial Court ought to have granted the appellant’s application to set aside the 2nd Respondent’s primary election held in violation of the lower Court’s order of 18th May, 2022 which directed parties to maintain status quo ante bellum, pending the hearing and determination of the substantive suit.
The learned counsel to the 2nd Respondent started with the issue of their memorandum of conditional appearance and concluded that the Appellants have gone beyond their brief. That the memo filed by Nwoko, SAN on behalf of the 2nd Respondent was now a matter sorted out since Usoro, SAN had effectively taken over. He continued that Order 29 Rule 2 of the Federal High Court Rules relied upon by the Appellants had been moderated by Rule 3 thereof to the extent that a defendant has the liberty to challenge the jurisdiction of the Court without filing memorandum of conditional appearance. See UGWU & ORS V. PDP & ORS (2013) LPELR- 21356 (CA).
Counsel submitted that the Supreme Court in AGI V. PDP & ORS (2016) LPELR-42578 (SC) had reiterated that nomination and/or sponsorship of a candidate to contest election on its behalf or platform, is purely within the domain or precinct of such political party. Counsel drew attention to Relief 1 in the Appellants’ Amended Originating Summons where it was clearly mentioned that the purpose was for electing the 2nd defendant’s Ward Ad -Hoc Delegates. The Ad-Hoc Delegates election is part of the process of nomination of 2nd Respondent’s candidates to represent or contest election on its behalf which is non-cognizable by the Courts per Agi V. PDP (supra). Counsel cited ARDO & ANR V. NYAKO & ORS (2013) LPELR – 20887 (CA) which is on all fours with this case.
On the locus standi, the learned counsel urged the Court to uphold the decision of the lower Court. He relied further in Ardo V. Nyako (supra) and Section 84(14) of the Electoral Act. That as regards pre-primary and pre-election matters and issue of locus standi of plaintiff, he relied on PDP & ANR V. SYLVA ORS (2012) LPELR – 7814 (SC). Similarly, that since the Court had ruled that such cases are not justiciable or cognizable by the Courts then it means that the Appellants have no reasonable cause of action and lack locus standi to institute and maintain the suit before the trial Court. That means the suit discloses no cause of action. See IWUEKE & ANR V. ODIKANWA (2020) 16 NWLR (Pt. 1749) 105 AT 127 and AROWOLO & ANR V. AKAIYEJO II (2012) 4 NWLR (Pt. 1290) 286 AT 307.
On the grant of 2nd Respondent’s Stay of Execution Motion, learned counsel submitted that appeal on it is academic. That the stay was granted pending the hearing and determination of the 2nd Respondent’s appeal against the order for parties to maintain status quo ante bellum, upon the determination of the substantive suit and the preliminary objection the order had become defunct and spent. He continued that Courts are to determine live issues per Rhodes-Vivour in IJAODOLA V. UNIVERSITY OF ILORIN GOVERNING COUNCIL & 17 ORS (2018) 14 NWLR (Pt. 1638) 32 AT 45. See also PLATEAU STATE V. A G FEDERATION (2006) 5 NWLR (Pt. 967) 346 AT 419 and ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) 554 AT 600.
On the appeal against the ruling of the lower Court dismissing the application praying the lower Court to order the setting aside of the 2nd Respondent’s AKS primaries, the learned counsel submitted that it is academic and worthless. That the judgment of the lower Court was delivered on the substantive matter and in addition, the 2nd Respondent’s objection was upheld. Counsel further submitted that the decisions of the lower Court validated the 2nd Respondent’s AKS primaries and affirmed that the Appellants have no locus standi to institute and maintain the suit at the lower Court, that the subject matter of the suit is not cognizable and/or justiciable by the Courts and that the Appellant’s case is not meritorious. See also IJAODOLA V. UNIVERSITY OF ILORIN (supra) on waste of judicial time.
On behalf of the 3rd to the 331st Respondents, their learned counsel amplified the submissions of the 2nd Respondent. He submitted that the 2nd Respondent and the 3rd to 331st Respondents raised independent Notices of Preliminary Objection challenging the jurisdiction of the lower Court and the competence of the Appellant’s suit. That the lower Court upheld the objection of the Respondents and held the suit of the Appellants incompetent. He went further to submit that a party need not file memorandum of conditional appearance before filing Notice of Preliminary Objection. That Order 29 of the lower Court rules cannot operate as a bar to the issue of jurisdiction as canvassed by the Appellants. He relied on MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
On locus standi, the learned counsel submitted that the Appellants did not demonstrate that the Respondents caused them any injury as to vest them with the jurisdiction to sue them and seek redress, EMENIKE V. PDP (2012) 12 NWLR (Pt. 1315) 556 and PDP V. SYLVA (2012) 13 NWLR (Pt. 1316) 85. That the Appellants in their affidavits in support of the Originating Summons admitted they did not contest the Ad-Hoc Delegates election on the 30/04/22. That by their depositions, the Appellants have shown that they have no locus standi to challenge the outcome of the election they did not contest. See IWOK V. INYANG APPEAL NO. CA/119/2021 (Unreported) delivered on 19/08/2022. Counsel also relied on ALIYU V. APC APPEAL NO. SC/CV/24/2022 (Unreported) delivered on 18/02/2022, wherein the Court held that a person who did not take part in a process is a stranger to that process and cannot challenge that process.
Counsel distinguished this case from the case of NYAKO V. ARDO (supra) relied upon by the Appellants. That Appellants are not aspirants within the contemplation of Section 84 of the Electoral Act 2022. That per Section 285 of the 1999 Constitution and Section 84 of the Electoral Act, only an aspirant is entitled to seek redress. He continued that the Appellants’ remedy lies with their Party and not the Courts, APC V. ALIYU (supra) and APC V. MOSES (2021) 14 NWLR (Pt. 1796) 276 AT 320 among several others.
On reasonable cause of action, counsel submitted that even from their affidavit evidence, the suit of the Appellants did not disclose any reasonable cause of action. That the suit of the Appellants did not set out the legal rights of the Appellants and the obligation of the Respondents. See AKWAJI HENRY OMANG V. SYLVESTER EFFEFIOM NSA (2021) 10 NWLR (Pt. 1783) 55 AT 88 and BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) 11 NWLR (Pt. 1630) 298 AT 309.
On stay of execution, counsel submitted that the lower Court was right to have granted that order. That the law does not allow injunction against the electoral process per Section 84(15) of the Electoral Act 2022. That in any case, an injunction does not lie against completed acts, the Delegate’s election was conducted on 30/04/22 while the suit was filed on 4/05/22. See AR SECURITY SOLUTION LTD V. EFCC (2018) 6 NWLR (Pt. 1616) 552.
The learned counsel on the lower Court’s refusal to set aside the 2nd Respondent primary election held on the 22nd, 23rd and 24th May, 2022 submitted that the Appellants not being aspirants to those elections cannot seek the setting aside of those primary elections. That a party that did not contest a primary election cannot seek the nullification of that election, ALIYU V. APC (supra). In addition, that the Appellants did not purchase Nomination Forms and Expression of Interest Forms for the primary election which the application to set aside was predicated upon.
RESOLUTION
From the onset, let me start with the issue of Preliminary Objection raised by the Respondents. The objection sought for the dismissal and/or striking out of the suit in limine on the grounds that the Appellants lack locus standi to institute the suit and that the subject matter of the suit is the domestic affairs of the 2nd Respondent.
The Appellants raised Preliminary Point of Law to the effect that the 2nd Respondent’s Preliminary Objection is defective and cannot be granted for failure to file Memorandum of Conditional Appearance per the Rules of the Federal High Court. That the memorandum filed with Exhibit PDP 1 was without instruction. The lower Court had overruled the preliminary point of law and it is right. In AKALONU V. OMOKARO (2002) LPELR – 7131 (CA), this Court inter alia held;
“…I agree with the submission of the learned Counsel for the Respondents that it does not lie with the Appellants in the instant appeal to question the instruction or extent of the instruction of the learned Counsel for Respondents. It is the Respondents who could challenge the authority of his counsel to appear on his behalf. When a counsel appears in Court and states that he is instructed, the Court will not inquire into his authority to appear Allen V. Francis (1914) 3 KB 1065. The representation of parties, contrary to Appellant’s contention, do not affect the competence or jurisdiction of the Court. It is not the appearance of counsel nor the want of authority that confers on or removes jurisdiction from a Court. Appearance of counsel may have something to do with adjudication but nothing whatsoever with the competence of the Court to adjudicate and therefore with jurisdiction. Madukolu & Others V. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587.”
The issue of jurisdiction is one that cannot be truncated. It is fundamental and overwhelming, that is why no limitation is placed as regards to when or where it may be raised. Once the issue of jurisdiction is raised, it should be examined in all ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment. The fundamental importance of the issue of jurisdiction is underscored by the principle of law to the effect that it can be raised for the first time in the trial Court or the Court of Appeal or even the Supreme Court and by any of the parties or by the Court suo motu and can even be viva voce. See Olusola v. Bello (2014) LPELR – 24417 (CA), Oloriade V. Oyebi (1984) 5 SC 1 and Ezomo V. Oyakhire (1985) 2 SC 260 at 262.
I am also in agreement that the Appellants have no right to question whether or not counsel had instruction before filing the Memorandum of Conditional Appearance on behalf of the 2nd Respondent.
Very recently, the Supreme Court in AYORINDE V. KUFORIJI (2022) ELR – 3597 (SC) made a pronouncement on what locus standi denotes;
It is the capacity the plaintiff has to institute proceedings in a Court of Law to seek a determination of his civil rights against the defendant. Plaintiff has to demonstrate his locus standi by establishing that he has a justiciable or reasonable cause of action against the defendant.
The next issue is, does the Appellants have the locus standi to originate this suit at the lower Court?
The Supreme Court recently in SEN UGOCHUKWU UBA V. VALENTINE OZIGBO (2022) 10 NWLR 431 stated viz;
Before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended) and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries…. let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra) the aspirant must show to the Court that the National Executive Committee of the Political Party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election.
In the appeal before us, the Appellants were not notified nor invited for screening for the Ward Ad-Hoc Delegates election. They were not therefore aspirants in that delegate election. Tsammani, JCA in AMB MJZ ABUBAKAR WAZIRI V. PDP & ANR – Unreported Appeal No: CA/ABJ/CV/823/2022 delivered on 19th September, 2022 opined that;
An “aspirant” is a person who expressed interest in contesting the election for the political party office in issue, he purchased the prescribed forms and made all necessary payments of prescribed fees, filed and submitted the forms and was duly screened and cleared to participate in the primary election. Finally, that he infact participated in the scheduled primary election conducted by the political party. All the above enumerated facts must be shown to co-exist before a person can be said to be an aspirant. See ALFA V PDP & ORS (2019) LPELR – 47685 (CA) and unreported judgment of this Court in Appeal No: CA/E/200/2022 – SEN JOSEPH OBINNA OGBA V. CHIEF CHUKWUMA ODII IFEANYI & ORS delivered on 1st September, 2022.
I am not unaware that the decisions supra dealt with primary elections and the appeal before us had to do with Ward Ad-Hoc Delegates Election. The common denominator is the word “Election”. It does not matter where a person belongs, as long as it has to do with political party election. Once a person is an aspirant, then the decisions affect him. Once a person does not participate in the election, then he has no locus standi to challenge the outcome of that election.
In OKOLI & ORS V. ONWUGBUFOR (2018) LPELR – 46660 (CA) this Court per Georgewill, JCA had reason to pronounce on reasonable cause of action in these words;
What then in law is a cause of action and when is a cause of action said to be reasonable?
A cause of action is a situation or state of facts that entitles a party to maintain an action in Court.
A cause of action is thus defined as the entire set of facts or circumstances giving rise to an enforceable claim.
See Savage V. Uwechia (1972) 3 SC 213. See also Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449; United Bank for Africa Plc V. BTL Industries Ltd (2004) 18 NWLR (Pt. 904) 180; Adesina V. Ojo (2012) 10 NWLR (PT 1309) 562; Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 AT p. 169; Gbadehan V. Kiladejo (2012) 16 NWLR (Pt. 326) 399; Alhaji Abudu W. Akibu Vs. Oduntan (2000) 10 WRN 48; Omin III V. The Governor, Cross River State (2007) 41 WRN 158 AT pp. 186 – 187. In Shell Petroleum Development Company Nigeria Ltd. Vs Nwawka (2003) 1 S. C. (Pt. II) 127 AT p. 138, the Supreme Court per Ayoola, JSC, held inter alia thus:
Facts do not by themselves constitute a cause of action. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligation of the defendant. It must then go on to set out facts constituting infraction of plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. In the instant case, the respondent did not follow up with a demonstration of how his pleadings had complied with the guidelines.
And in Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) AT p. 376, the Supreme Court per Ogwuegbu, JSC., had succinctly stated what would amount to a reasonable cause of action inter alia thus:
A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (statement of claim) are considered. So long as the statement of claim discloses some cause of action or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak and not likely to succeed, is no ground for striking it out or dismissing it.
Also, in Shell B.P. Petroleum Development Co. Ltd V. Onasanya (1976) 6 S.C 89 AT p. 94, the Supreme Court had laid down the following guidelines when it held inter alia thus:
The question that follows is: Looking at the facts pleaded by the Plaintiff in support of its claim, can it be said that the case at all events has no reasonable chance of success? It needs to be said here that the proposition that a Plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the statement of claim. It has nothing to do with the nature of the defence which the Defendant may have to the Plaintiff’s claim. The Court must therefore confine itself only to the averments in the statement of claim in assessment of whether or not the Plaintiff has a reasonable cause of action.
In Tika-Tore Press Ltd V. Umar (1968) ALL NLR 139, this Court had succinctly opined inter alia:
For a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad.
In NBC Plc. V. Ezeifo (2001) 12 NWLR (Pt. 726) 11 AT pp. 28- 29, this Court per Oduyemi JCA had held inter alia thus:
Where the statement of claim discloses no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed.
In this circumstance, the suit was instituted via Originating Summons with supporting affidavit. The affidavit is akin to the statement of claim. The Court ought to therefore look at the averments in the affidavit to see if they disclose reasonable cause of action, setting out the legal rights of the plaintiffs/appellants and the obligation of the defendants/respondents. The affidavit must bring forth the infractions of the plaintiffs/appellants’ legal rights or failure of the defendants/respondents to fulfill their obligations, such that without proper defence, the plaintiffs/appellants would be entitled to the reliefs or remedies sought.
The complaints of the Appellants and the cause of action had to do with the 2nd Respondent’s Ward Ad-Hoc Delegates election of 30th April, 2022 of Akwa Ibom State. It is not in dispute that the Appellants did not participate in the Ward Ad-Hoc Delegates election conducted by the 2nd Respondent. They were not aspirants for that election. Having not participated in the Ward Ad-Hoc Delegates election, the Appellants have no locus to challenge the conduct of that election. Agim, JSC in ALIYU V. APC & ORS Unreported, SC/CV/24/2022 delivered on 18th February, 2022 opined thus;
A personal right of action over the internal affairs of a political party does not exist in respect of violation of contractual rights. A right of action in Court over the refusal of a political party to nominate or select one as its candidate for an election does not exist unless it is expressly created or given by statute. Also, the judicial power of a Court does not extend to the determination of disputes over internal affairs of a political party as a voluntary organization, except where a statute expressly extends such power to such matter. So unless jurisdiction is expressly conferred on a Court over the selection or nomination of a political party’s candidate for an election, which is part of its internal affairs, it has no such jurisdiction. See ONUOHA V. OKAFOR (1983) 2 SCNJ 244, PDP & ORS V. SYLVA (supra), DALHATU V. TURAKI (2003) 15 NWLR (Pt. 843) 310 and UGWU V. ARARUME (2007) 12 NWLR (Pt. 1048) 367.
On the issue of setting aside the primary election conducted by the 2nd Respondent in Akwa Ibom State on 22nd, 23rd and 24th May, 2022 and the stay of execution granted on the 18th May, 2022 at the instance of the 2nd Respondent. I fail to see the value that will accrue to the Appellants. The primary election the Appellants sought to set aside is for the various offices in the State Assembly, National Assembly and Governorship during the 2023 General Elections. The learned trial Judge felt tempering with the order will amount to giving with one hand and taking with the other. He concluded that to stop the conduct of the primary election would be against the provision of Section 84 (15) of the Electoral Act, 2022. He therefore granted the order to maintain the status quo ante bellum.
Section 84 (15) of the Electoral Act provides;
Nothing in this section shall empower the Courts to stop the holding of primaries or general elections under this Act pending the determination of a suit.
The exercise of discretion is a matter exclusively for the Court to do after weighing the circumstances of the case in the interest of justice and the balancing of the interest of the parties involved, including the balance of convenience and disadvantages, which might be suffered by any of the parties concerned. See INEC V. ADVANCED CONGRESS OF DEMOCRATS & ORS (2022) ELC – 3599 (SC) and ECHAKA CATTLE RANCH LTD V. NIGERIAN AGRICULTURAL & CO-OPERATIVE BANK LTD (1998) LPELR – 998 (SC).
Calling on the lower Court to set aside the primary election and vacate the order for stay by the Appellants who had not participated in primary election would have placed the 2nd Respondent in a serious disadvantage in the 2023 General Election. The Courts have spoken that a person that had not participated in an election and he is not an aspirant has no locus. The learned trial Judge had utilized his discretion judicially and judiciously by refusing to accede to the request of the Appellants.
Let me add that appellate Courts are only concerned with the decisions of the trial Courts. Once the decision is right, the appellate Court has no business with wrong reasons once decision is right. See SOWUMI V. ALHAJI SOMS & ORS (1982) 17 ALL NLR (Pt. 1) 19. I did not see where to fault the decision of the lower Court, from which this appeal emanated on all areas presented before us.
For the reasons given supra, the appeal is unmeritorious and it is hereby dismissed.
Parties to bear the cost.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the draft of the judgment delivered by Usman Alhaji Musale, JCA.
My learned brother adequately considered and resolved the issues presented before us for determination. I agree with the reasoning and conclusion of my learned brother that the appeal has no merit, and that same be dismissed. This appeal is accordingly adjudged by me to be without merit. It is hereby dismissed.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother USMAN A. MUSALE, JCA afforded me the opportunity of reading the draft judgment just delivered.
I adopt the judgment as mine with nothing further to add.
Appearances:
Ahmed Raji, SAN with him, Peter Nwatu, Esq. W.A. Adeniran, and S.J. Amodu, Esq. For Appellant(s)
Abdulaziz Sani, SAN with him, Kingsley Magbun, Esq. for 1st Respondent
Uwemedimo Nwoko, SAN with him, Sojinti Nyasore, Esq. and Inyene Ekpoattai, Esq. for the 3rd – 331st Respondents For Respondent(s)
