MR. TUNDE ABDUL-RAHMAN v. ALL PROGRESSVIES CONGRESS & ORS
(2018)LCN/12268(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2018
CA/L/382/2018
RATIO
JURISDICTION: WHERE A COURT LACKS JURISDICTION
“Since the jurisdiction of the Lower Court was not properly activated or invoked by the Appellants suits as a legal consequence, this Court also lacks the appellate jurisdiction to accept or accede to the invitation by the Appellant to invoke the provisions of Section 15 of the Court of Appeal, Act. Obi v. INEC (2007) 11 NWLR (1046) 560, Olofu v. Itodo (2010) 18 NWLR (1225) 545.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. TUNDE ABDUL-RAHMAN – Appellant(s)
AND
1. ALL PROGRESSVIES CONGRESS
2. MR. WALE RAJI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling by Federal High Court, Lagos (Lower Court) delivered on 23rd January, 2018 by which the Appellant’s Suit No: FHC/L/CS/475/2016 was struck out on the ground that its jurisdiction was not properly activated. The suit was commenced by way of an originating summons dated 30th March, 2016 but filed on the 5th April, 2016 with the following contents: –
1. A DECLARATION that the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, is within the exclusive domain of Section 87 of the Electoral Act 2010 (as amended) and Guideline of Political parties.
2. A DECLARATION that the conduct of the House of Representatives Primaries of the 1st Defendant conducted on the 7th of December 2014 was grossly in non-compliance with the provisions of Section 87 of the Electoral Act, 2010, the APC 2014 Guidelines for the Nomination of Candidates for Public Offices (hereinafter referred to as APC 2014 Guidelines) and therefore, unlawful, illegal, null and void.
3. A DECLARATION that in the circumstances of this case, the Plaintiff is entitled to reliefs sought having exhausted internal party mechanism to redress the non-compliance with the Electoral Act 2010 (as amended), APC 2014 Guidelines for the Nomination of Public Offices and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. A DECLARATION that the 2nd Defendant having remained in paid public service as a permanent secretary with the Lagos State Government as at December, 2014 was not eligible to contest for the House of Representatives Primary of the 1st Defendant and therefore his purported nomination by the 1st Defendant as its candidate for the House of Representatives election held on the 7th day of December, 2014 was in gross violation of Section 66(1)(f) of the 1999 Constitution Section 31(2)(5)(8) of the Electoral Act, 2010, Section 5 of the Lagos State Public Services Rules and the 1st Defendants Constitution and Electoral Guidelines and therefore unlawful, illegal, null and void.
5. A DECLARATION that it is unlawful for the 3rd Defendant to act on a candidate nominated by the 1st Defendant for the purpose of the general elections when such a candidate was elected in violation of the Electoral Act, 2010, and the electoral guidelines established by the 1st Defendant and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
6. AN ORDER of this Honourable Court directing the 1st Defendant to withdraw the nomination and sponsorship of the 2nd Defendant as the House of Representatives Flag bearer of the All Progressive Congress and to substitute the 1st Defendant with the Plaintiff for the House of Representatives Epe Federal Constituency election.
7. AN ORDER of this Honourable Court directing the 3rd Defendant to expunge the name of the 2nd Defendant from its register of House of Representatives candidates for the 2015 House of Representatives elections and/or withdraw the certificate of return issued to the 2nd defendant and to substitute the name of the 2nd Defendant with that of the Plaintiff as the nominated/winner of the December 7th, 2014 House of Representatives Primary Election for Efe Federal Constituency of the 1st Defendant.
8. The sum of N100,000,000.00 as general damages as against the 1st and 2nd Defendants in favour of the Plaintiff, for the determination of the following questions;
1. Whether the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, is within the exclusive domain of Section 87 of the Electoral Act 2010 (as amended).
2. Whether the conduct of the House of Representatives Primaries of the 1st Defendant conducted on the 7th of December 2014 was not grossly in non-compliance with the provisions of Section 87 of the Electoral Act, 2010, the APC 2014 Guidelines for the Nomination of Candidates for Public Offices (hereafter referred to as APC 2014 Guidelines), the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore, unlawful, illegal, null and void.
3. Whether in the circumstances of this case, the Plaintiff is not entitled to the reliefs sought having exhausted internal party mechanism to amend), APC 2014 Guidelines for the Nomination of Public Offices and the Constitution of the Federal Republic of Nigeria.
4. Whether the 2nd Defendant having remained in paid public service as a permanent secretary with the Lagos State Government as at December, 2014 was not eligible to contest for the House of Representatives Primary of the 1st Defendant and therefore his nomination by the 1st Defendant as its candidate for the House of Representatives election held on the 7th day of December, 2014 in gross violation of Section 66(1)(f) of the 1999 Constitution, Section 31(2)(5)(8) of the Electoral Act, 2010, Section 5 of the Lagos State Public Service Rules and the 1st Defendants Constitution and Electoral Guidelines and therefore, unlawful, illegal, null and void.
5. Whether it is lawful for the 3rd Defendant to act on a candidate nominated by the 1st Defendant for the purpose of the general elections when such a candidate was elected in violation of the Electoral Act, 2010, and the electoral established by the 1st Defendant and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Appellant deposed to a thirty (30) paragraphs Affidavit on the same 8th April, 2016 in support of the summons which was also accompanied by a Written Address and to which were attached copies of documents.
In reaction to the summons, the 2nd Respondent filed a Notice of Preliminary Objection (objection hereafter) on the 28th March, 2017 to challenge the locus standi of the Appellant to initiate the action and the jurisdiction of the Lower Court to adjudicate over it on the following grounds.
1. Originating Summons procedure is not the appropriate mode to commence the instant suit in view of the conflicting facts in the affidavits of the parties.
2. This Honourable Court lacks the jurisdiction to entertain the Plaintiffs claim for the following reasons:-
a. In the light of the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria (as amended) which confers special and limited jurisdiction on the Federal High Court.
b. The Claim of the Plaintiff is not justifiable being about the nomination of a Political Partys candidate which is strictly the Internal affair of the Party.
The Plaintiff lacks the requisite locus standi which robs Honourable Court jurisdiction to entertain this suit.
3. The Plaintiff has not exhausted the internal mechanism and remedy of the Party vis-a-vis the mandatory provisions of the All Progressives Congress Constitution 2003 (Exhibit C) before approaching this Court.
A nine (9) paragraphs Affidavit deposed to in support of the objection and a thirty-eight (38) paragraphs Counter Affidavit to oppose the summons sworn to by the 2nd Respondent were filed on the same date.
The Appellant filed Counter Affidavit in opposition to the objection and a Further Affidavit to the Counter Affidavit of the 2nd Respondent in respect of the summons, both on the 19th April, 2017.
The Lower Court heard the objection alone on 22nd November, 2017 and then delivered the aforementioned Ruling holding that the Appellant lacks the locus standi to institute the action since he did not participate in the primary election he sought to challenge and so did not qualify as an aspirant.
Dissatisfied with that decision, the Appellant brought the appeal vide the Notice and Ground of Appeal filed on the 22nd February, 2018 and filed the Appellants brief on the 30th April, 2018, deemed on the 12th July, 2018.
The following issues are set out in the brief for decision by the Court.
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE JURISDICTION OF THE COURT WAS NOT PROPERLY ACTIVATED BY THE APPELLANT (GROUND ONE)
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE APPELLANT LACKS THE LOCUS STANDI TO CHALLENGE THE CONDUCT OF THE 1ST RESPONDENT PRIMARY ELECTION CONDUCTED ON THE 7TH OF DECEMBER, 2014. (GROUND TWO)
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE REFUSED AND FAILED TO HEAR THE APPELLANT SUBSTANTIVE SUIT TOGETHER WITH THE NOTICE OF PRELIMINARY OBJECTION FILED IN THE SUIT. (GROUND THREE)
4. WHETHER THE RULING OF THE LEARNED TRIAL JUDGE WAS NOT PERVERSE AND AGAINST THE WEIGHT OF EVIDENCE (GROUND FOUR).
There is no record that any of the Respondents who were duly served with all the material processes of the appeal including the Appellant Brief and Hearing Notices, has filed a brief to prosecute the appeal or taken any step to do so. None of them was also represented at the oral hearing of the appeal.
In the absence of a brief from any of the Respondents to be considered in the determination of the appeal, it remains uncontested, which fact does not however, automatically translate into its success that depends on the sustainability of the issues canvassed in law and not absence of the Respondents briefs, John Holt Ventures Limited v. Oputa (1996) 9 NWLR (470) 101, Echere v. Ezirike (2006) ALL FWLR (323) 1597 @ 1608, Polyvent Nigeria Limited v. Akinbote (2010) 8 NWLR (1197) 506.
After reading the Ruling by the Lower Court against which the appeal was brought, I observed that the sole reason why it held that its jurisdiction was not properly activated by the Appellant was that by his own evidence, he did not participate in the primary election to qualify as an aspirant who is vested with the locus standi to institute an action to challenge its conduct. The Lower Court did not say, even in passing, that the suit was not properly initiated or commence by way of originating summons or that it lacks the jurisdiction to adjudicate over it on the ground that it was commenced by way of originating summons.
On the contrary, this was what the Lower Court stated and held on the issue, at page 302 of the Record of Appeal.
On whether this Court has the requisite jurisdiction to hear this claim as presently constituted, Section 87(9) of the Electoral Act (2010) gave an aspirant aggrieved or who complains that any of the provisions of the Electoral Act and the guidelines of a Political party has not been complained within the selection or nomination of a candidate of a political party to apply to the Federal High Court or the High Court of a State for redress.
In addition, the issue of the Lower Court taking or hearing the objection together or along with the summons was not raised by the parties before and was not pronounced upon by the Lower Court in the Ruling appealed against.
The law is now elementary in the appellate Courts that for grounds of an appeal to be valid and competent for consideration by an appellate Court, they must be derivable, related to and come or arise from the decision of a Lower Court, subject of the appeal. Onnoghen, JSC (now CJN) in the case Co-operative & Commercial Bank, Plc, v. Ekperi (2007) 1 SC (Pt. II) 130, (2007) 3 NWLR (1022) 493, re-stated the law as follows:-
It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgement or purports to raise an attack an issue not decided by the judgement appealed against, the same becomes incompetent and liable to be struck out.
See also FCE, Oyo v. Akinyemi (2008) 15 NWLR (1109) 21, Christaben Group Limited v. Oni (2008) 11 NWLR (1097) 84; Ojiogu v. Ojiogu (2010) 9 NWLR (1198) 1; Onafowokan v. Wema Bank Plc (2011) 12 NWLR (1260) 24; Estisione H. Nigeria Limited v. Osun State Government (2012) 14 NWLR (1321) 540.
Ground three on the Notice of Appeal complains that: –
GROUND THREE
The learned trial Judge erred in law when he refused and failed to hear the substantive suit commenced by way of Originating Summons together with the Notice of Preliminary Objection filed in the suit.
This ground does not relate to or arise from any issue canvassed by the parties before the High Court or from any pronouncement contained in the Ruling appealed from.
On the authority of the above cases, the ground along with the issue formulated from it and arguments thereon contained in the Appellant Brief are incompetent and liable to be discountenanced or struck out See Ajayi v. Asipa (2006) ALL FWLR (306) 912.
Ground Two is in general and vague terms to constitute a reasonable and valid ground of appeal and is liable to be struck out under Order 7, Rule 3 of the Court of Appeal Rule, 2016 along the issue indicated to have been distilled therefrom and the arguments canvassed thereon. See Haruna v. K.S.H.A. (2010) 7 NWLR (1194) 604, Nnaji v. Agbo (2006) ALLFWLR (305) 736, Ononiwu v. RCC (1995) 7 NWLR (406) 214.
Only grounds one and four of the Notice of Appeal are valid and competent grounds arising from the Ruling by the High Court and I intend to determine the appeal on the basis of the two (2) grounds.
Appellant’s Submissions:-
Learned Counsel for the Appellant, relying on Dahiru v. APC (2017) 4 NWLR (1555) 218 @ 244; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 415) (sic), 135 and Lar v. PDP (2018) 4 NWLR (1608) 60, among other cases, submits that the Lower Court has the requisite jurisdiction by virtue of the provisions of Section 87(9) of the Electoral Act, 2010, to entertain the action which was properly commenced by way of originating summons to activate its jurisdiction.
According to learned counsel, the evidence by the Appellant shows that as a member of the 1st Respondent, he bought the expression of interest form, was screened and cleared to participate and did participate in the primary election for the nomination of candidates for election into the House of Representative for the Epe Federal Constituency of Lagos State conducted on 7th December, 2014 and that he was shown by the result of the primary election to have scored six (6) votes. He contends that as a person who participated in the primary election, he was an aspirant who possesses the locus standi pursuant to Section 87(9) to challenge the conduct of the primary election on ground of non-compliance with the Electoral Act and 1st Respondents Constitution and guidelines.
It is submitted that even the 2nd Respondent in paragraph 5 of his counter affidavit to the summons confirms the Appellants participation in the primary election and the votes scored by him. Also, that the Appellant has met the conditions necessary under Section 87(9) of the Electoral Act, as set out in Ukachukwu v. PDP (supra) for him to have the requisite locus standi to challenge the conduct of the primary election which was conducted in violation or breach of the Electoral Act as well as the Constitution and guidelines of the 1st Respondent. In further argument, it is maintained that the jurisdiction of the Lower Court was properly activated by the Appellant and the Lower Court erred to hold that it was not so activated.
In addition, it is the case of the Appellant that the Lower Court did not properly evaluate the evidence before it which is unchallenged since the 1st Respondent did not file a Counter Affidavit to the summons to controvert the Appellants depositions which are therefore, deemed accepted as correct by it. Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (966) 212, NBA v. Ekemezie (2008) 12 NWLR (1100) 212 and FBN, Plc v. Ndarake & Sons Limited (indicated to be (supra) but was not cited before then in the brief), were referred to on the submission.
The Court is urged to allow the appeal and invited to invoke the provisions of Section 15 of the Court of Appeal, Act, as was done in the case of Lar v. PDP (supra) by the apex Court, the suit being a pre-election matter since all the material evidence is documentary and before the Court. In conclusion, the Court is urged to nullify the nomination of 2nd Respondent for the election he contested and won on the platform of the 1st Respondent based on the primary election which was conducted in breach of the Electoral Act and the 1st Respondents Constitution and guidelines and to return the Appellant as the winner of the election into the House of Representative for Epe Federal Constituency.
Resolution:
Since the fulcrum of the complaint in the appeal is against the holding, finding and decision by the Lower Court that the Appellant was/is not an aspirant to be clothed with the requisite locus standi to challenge the conduct of the primary election in question because he did not participate in the primary election, it is expedient to set out the reasoning by the Lower Court for that decision.
It started at page 302-305 of the Record of Appeal and is as follows: –
Ordinary, the nomination or selection of a partys candidate at their primary is a domestic affair of the political party, however to the content that the Plaintiff is complaining about the nomination or election of a candidate by a party, the Federal High Court is clothed with jurisdiction to adjudicate over such complaints if there is a principal claim against the FGN or its agency. However, to be able to activate the Courts jurisdiction, a Plaintiff must also be an aspirant in the primary election the conduct of which he is challenge. See Section 87(9) of the Electoral Act 2010 and DAHIRU VS. A.P.C. (2017) 4 NWLR (part 1555) 218, KAKIH VS. PDP (2014) 15 NWLR (part) 1430 374 @ 431, 433, OSUDE VS. AZODO (2017) 15 NWLR (part 1588) 293.
The big question now is whether or not the Plaintiff was an aspirant or candidate during the election of 7/12/2014.
I have read paragraphs 3, 21, 22, 23 of the Plaintiffs affidavit in support of the Plaintiffs originating summons. The paragraphs are herein below reproduced
4. That the 2nd Defendant is the person the 1st Defendant illegitimately allegedly returned as having been nominated at the 2014 primary election for the House of Representatives of the Epe Federal Constituency after the Plaintiff was wrongfully and arbitrarily deprived from contesting the said primary election even though he had been satisfactorily screened and cleared accordingly having fulfilled all requirements set by the 1st Defendant.
(21) That having fulfilled all the requirements to contest the House of Representatives for Epe Federal Constituency primary election under the 1st Defendants Constitution and guidelines, the Electoral Act 2010 as amended and the 1999 Nigerian Constitution as amended, the 1st Defendant and or any other defendants do not have the power and therefore cannot arbitrarily and illegally remove my name from the official list of the 1st Defendant for House of Representatives Aspirants for Epe Constituency and or unlawfully exclude me from contesting its Primary Election held on 7th December, 2014.
(22) That having fulfilled all the requirements to contest the House of Representatives for Epe Federal Constituency primary election under the 1st Defendants Constitution and guidelines, the Electoral Act 2010 as amended and the 1999 Nigerian Constitution as amended, the removal of my name from the official list of the 1st Defendant aspirants for House of Representatives for Epe Federal Constituency by the 1st Defendant and my subsequent arbitrary exclusion from contesting the said primary election was deliberately calculated to work on the psyche of the accredited delegates to vote against me and thus circumvent my right to equal opportunity to be voted for as guaranteed by the 199 Nigerian Constitution as amended.
(23) That having fulfilled all the requirements to contest the House of Representatives for Epe Federal Constituency primary election under the 1st Defendants Constitution and guidelines, the Electoral Act 2010 as amended and the 1999 Nigerian Constitution as amended, the removal of my name from the official list of the 1st Defendant aspirants for House of Representatives for Epe Federal Constituency by the 1st Defendant and my subsequent arbitrary exclusion from contesting in the said primary election was deliberately calculated and indeed thwarted the actualization of my aspiration to be nominated during the said primary election and finally robbed me of clinching victory and occupying the seat for the House of Representatives for Epe Federal Constituency at the general election come 28th day of March, 2015.
From the avernments in these paragraphs of the affidavit in support which, was personally deposed to by the Plaintiff, it is clear by his own showing that the Plaintiff was contesting his arbitrary exclusion and deprivation from contesting his primary election in this case.
This in my view is an admission on his part of the fact that he did not take part in the election, having been excluded wrongfully. It follows that since the Plaintiff claimed he was excluded from taking part in the primary he is not qualified to be described as an aspirant.
Not being an aspirant, the Plaintiff lacks the locus standi to challenge the conduct of the party primary that was conducted by the 1st Defendant on 7/12/2014.
SEE OLUGBEMI VS. LAWRENCE (2017) 16 NWLR (part 1591) 209 SC, WUSHISHI VS. IMAM (2017) 18 NWLR (part 597) 175.
Having thus found, it is my humble view that the jurisdiction of this Court was not properly activated by the Plaintiff.
Now, the law is firmly settled that in the determination of whether a Courts jurisdiction was properly activated for it to have the judicial power and authority to entertain and adjudicate over an action brought before it, the relevant documents or processes to be looked at and considered, are the initiating processes employed and filed to commence the action.
These are the writ of summons and statement of claim, where applicable, or the originating summons and the Affidavit evidence setting out the facts upon which relief are sought by the claimant or plaintiff. Put another way, it is the claims of a claimant or plaintiff as set out in writ of summons and statement of claim or originating summons and the Affidavit evidence in support thereof, that are relevant and material in the determination of whether or not a Courts jurisdiction was properly activated to enable it entertain and adjudicate over an action. See Tukur v. Governor, Gongola State (1989) ALLNLR, 575; Western Steel Works Limited v. Iron & Steel Workers Union of Nigerian (1987) 1 NWLR (1949) 284 @ 296-7, (1987) 2 SCNJ, 1; Attorney General, Anambra State v. Attorney General of Federation (1993) 6 NWLR (302) 692, (1993) 7 SCNJ (Pt. II) 245,; Nkuma v. Odili (2006) 6 NWLR (977) 587 and FBN, Plc v. Abraham (2008) 18 NWLR (1118) 172 wherein Aderemi, JSC restated the law that: –
It no longer admits of any argument that in determination whether a Court has the jurisdiction or the legal power to entertain a claim or suit, it is only to the claim of the plaintiff that a resort must be had.
In the present appeal, since the Appellants suit was brought or initiated by way of originating summons, the relevant and material processes to be considered by the Lower Court in order to determine the objection to its jurisdiction to entertain the action, are the summons along with the Affidavit evidence filed by the Appellant in support of the summons.
As seen above, the Lower Court had relied on the paragraphs 3, 21, 22 and 23 of the Appellants Affidavit in support of the summons to hold that his complaint in the suit was that he was excluded from participation in the primary election in question and so did not qualify as an aspirant to be clothed with the requisite locus standi under Section 87(9) of the Electoral Act, 2010, to challenge the conduct of the primary election since he did not participate therein. It is clear that from the reasoning of the Lower Court it isolated the named paragraphs of the Appellants Affidavit and considered them alone without reference to other paragraphs of the Affidavit.
The law however, is that in the determination the real claim reliefs or complaints presented in a case, the entire facts in the pleadings setting out and outlining the essential and material details of the claim or complaint are to be looked at and considered wholistically, together; one in relation to all the others and not one or only some in isolation of the others. Ngige v. Obi (2006) 14 NWLR (999) 1, Agbllah v. Chime (2009), 1 NWLR (1122) 373. In line with the requirement of the law, all the averments or depositions in the Appellants Affidavit in support of the summons ought to and should have been looked at and considered as a whole in order to discover and determine the real, factual and actual complaint presented by him in the suit in the process of the determination of whether the Lower Court is seized of the requisite jurisdiction to adjudicate over it.
I have read the thirty (30) paragraphs Affidavit personally deposed by the Appellant in support of the summons and found the other material avernments therein which reveal and show the real, factual and actual complaint and grouse of the Appellant about the conduct of the primary election in question, a part from the paragraphs 3, 21, 22 and 23 relied on by the Lower Court are paragraphs 15, 16(i) (iv), (xiv), 24, 25 and 26. They are as follows:-
15. That on the 7th December, 2014, I made all necessary arrangement and proceeded to the venue of the primary election for the 1st defendants House of Representatives Aspirants for Epe Federal Constituency at the Lags State V.I.P. Chalet, Oke-Oyinbo, Epe, Lagos State.
16. That the 1st Defendant breached its guidelines as stipulated in the All Progressive Congress Guidelines for the Nomination of Candidates for Public Office, the 1st Defendants Constitution as well as relevant provisions of the Electoral Act, 2010 (as mended), in that:
i. That having been cleared screened and issued screening certificate by the 1st Defendant as its aspirant for the House of Representative primary election for Epe Federal Constituency, the 1st Defendant deliberately removed and or failed to enlist my name in the official list of its (All Progressive Congress (APC)s House of Representative Aspirants for Epe Federal Constituency Primary Election scheduled for December 7, 2014.
ii. That the other eight (8) aspirants names were all listed and called out in the presence of all participants including the delegates except my name.
iii. That the 1st defendants presiding electoral officers after calling out the aspirants from the list of Aspirants for the said primary election and in the presence of all participants including the delegates at the Lagos State V.I.P. Chalet, Oke-Oyinbo, Epe announced in the public glare that I cannot contest the said primary election as my name. WAS NOT on the official list of aspirants as given to them by the 1st Defendant.
iv. That the above stated ugly development and circumvention of my rights and entitlements resorted to a very serious and unpalatable scene with its resultant pandemonium as I fruitlessly demanded for explanation from the said electoral officers as to why only my name was removed from the said list of aspirants for Epe Federal Constituency Primary Election even after I had met all the requirement as set out by relevant laws and the 1st Defendant and was screened and cleared as aspirant, but no verifiable and cogent reasons were ever offered to be me.
xiv. That the aforemention action of the 1st defendant worked negatively on the minds of the delegates and against me leading to the manipulated allocation of such abysmal low scores to me at the end of the 1st defendants primary.
24. That the regrettable and unlawful act of removing my name by the 1st defendant has demoralize and rattle the psyche of not only my person, but that of my entire family, extended relations including my campaign team, terming political supporters and the general public in Epe Federal Constituency.
25. That having fulfilled all the requirements to contest the House of Representatives for Epe Federal Constituency primary election under the 1st defendants Constitution and guidelines, the Electoral Act 2010 as amended and the 1999 Nigerian Constitution as amended, it is illegal and unconstitutional for the 1st defendant to arbitrarily remove my name from the official list of its aspirants for House of Representatives for Epe Federal Constituency and/or claimed to have inserted my name with a pen and therefore unlawfully denied me equal opportunity giving other aspirants of contesting the said Primary Election held on 7th December, 2014 and the 1st defendant thereafter could not have forwarded the 2nd defendants name as its nominated candidate from the said primary election for Epe Federal Constituency to the 3rd defendant for the general election of March, 2015.
26. That having fulfilled all the requirements to contest the House of Representatives for Epe Federal Constituency primary election under the 1st defendants Constitution and guidelines, the Electoral Act, 2010 as amended and the 1999 Nigerian Constitution as amended but for the arbitrary exclusion of my name by the 1st defendant from contesting the said primary election, my name (not the 2nd defendants) is the proper and appropriate name to be forwarded by the 1st defendant as its nominated candidate for Epe Federal Constituency to the 3rd defendant for the election.
The plain communal complaint and grouse in these depositions is that when the Appellant went to the venue of the primary election in question on the 7th December, 2014, after he was screened and cleared to participate there at, he found and discovered that his name was removed, not included, but excluded from the 1st Respondents Official list of aspirants to participate in the primary election and was excluded from participation. That inspite of his exclusion from participation, he was allocated such abysmal low scores at the end of primary election, as a result of the removal of his name from the List of Aspirants and exclusion from participation. These avernments or depositions taken along and considered with the depositions in paragraphs 3, 21, 22 and 23 of the Appellants Affidavit constitute the foundation and factual and real complaint, grouse against and challenge to the primary election in question.
The depositions which form the substratum of the suit all deal with the compliant and grouse of deliberate removal of the Appellants name from the official List of Aspirants and subsequent arbitrary exclusion from contesting the said primary election (see paragraphs 22, 23 and 26). The depositions show that basis and foundation of the Appellants suit was the removal of his name from the official List of the 1st Respondent and the alleged subsequent arbitrary exclusion from contesting the said primary election after he was duly screened and cleared to participate in the primary election by the 1st Respondent.
The unavoidable fact, which is clear as crystal in the depositions is that the Appellant was excluded from contesting the said primary election and that he did not participate or take part in the contest by the aspirants whose names were on the Official List of 1st Respondent and who participated in the primary election.
For the purpose of the provisions of Section 87(9) of the Electoral Act, 2010, the word aspirant was defined in the case of PDP v. Sylva (2012) NWLR (1316) 85 by the apex Court per Rhodes-Vivour, JSC, as follows:-
From the above, it is clear that an aspirant is a person, who contested the primaries. An aspirant is thus a candidate in the primaries.”
See also Ardo v. Nyako (2014) LPELR-22878 (SC) wherein, Onnoghen, JSC, (now CJN) dealing with the definition of the word aspirant in Section 156 of the Electoral Act and Section 87(9) of the Act stated that:
In interpreting the provisions of Sections 156 and 87(9) of the Electoral Act, 2010, as amended, we have to constantly keep in mind the fact that the definition of the word aspirant as used in both sections has to be related to the subject or after of the suit or cause of action since what we are trying to determine is the issue as to whether the Court has jurisdiction to entertain the action as constituted. It is in this respect that I have to say that it is settled law that the question as to who is a candidate of a political party remains within the province of the political parties over which the Courts have no jurisdiction except within the very narrow compass provided under the said Section 87(9) of the Electoral Act, 2010 as amended.
Under the said Section 87(9), an aspirant who can invoke the jurisdiction of the Court, and as has been held in a long line of cases from this Court, the one who complains that any of the provisions of the Electoral Act and the Guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election. It follows that for a party/person to qualify to have the locus to institute an action on a matter arising from the nomination of a partys candidate for an election, he must have participated in the nomination exercise of the party and failed irrespective of whether the nomination is a no case or an event. Where a party did not participate in the primary election of the political party for the nomination of a candidate for an election, he cannot sue on the processes leading to and including the actual primary election, because by the provision of the said Section 87(9) supra, the Court will have no jurisdiction to hear and determine the action. (Underline provided)
This position was restated and re-echoed by Kekere-Ekun, JSC in APGA v. Anyanwu (2014) 7 NWLR (140) 541 @ 577 by stating that:
This brings me to Section 87(9) of the Act which provides: –
“…it has been held that the jurisdiction of the Court to entertain a complaint under this section is very narrow in scope. A complainant must bring himself squarely within the confines of the provisions. He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party.
Then, in the later case of Daniel v. INEC (2015) 9 NWLR (1463) 113 @ 153-4, dealing with a similar situation as in the case of the Appellant here, Rhodes-Vivour, JSC had declared that: –
An admission, clearly and unequivocally made is the best against the person making it. Paragraphs 26 and 30 are conclusive evidence that the appellant did not participate in the re-run primaries conducted by PDP on the January, 2011.They are clear admissions by the appellant. Since the appellant did not participate in the re-run primaries there was no way he could complain about the conduct of the primaries and so had no locus standi to institute an action as provided by Section 87(9) of the Electoral Act. Put in another way, before a candidate for the primaries can have the locus standi to sue on the conduct of the primaries, he must be screened, cleared by his political party and participate at the said primaries. Anything short of that, the candidate who did not participate in the primaries could conveniently be classified as a meddlesome interloper with no real interest in the primaries.
In his contribution, Akaahs, Jsc poignantly pointed out that: –
He was clearly excluded from the re-run primaries. The party has a right to exclude a candidate from participating in primaries even after he has been screened and cleared to contest the primaries and the candidate so excluded has no legal remedy against the action taken by the party. (Underline supplied for emphasis).
This exposition of the law by the apex Court has put the point beyond argument that for a person to qualify as an aspirant to be clothed with the requisite locus standi or legal capacity or standing to institute an action to challenge the conduct of the primary election of a political party under the provisions of Section 87(9) of the Electoral Act, 2010 (as amended) and for a Court to have the requisite jurisdiction to entertain the action, he must have participated or taken part in the conduct of the primary election for the nomination of a candidate of the political party in question.
Where he did not participate or take part, for any reason or on any ground, he would lack the locus standi to challenge the conduct of the primary election by way of legal action or through the instrumentability of the judicial processes of a Court of law and such a Court would be without and deprived of the competence to entertain and adjudicate over any such action even it instituted, anyhow.
Learned counsel for the Appellant has referred to paragraph 5 of the 2nd Respondents Counter Affidavit to the summons as confirming that the Appellant was an aspirant at the primary election and that he scored six (6) votes. However, the overwhelming depositions of the Appellant himself far outweigh and contradict the paragraph 5 of the Counter Affidavit which in any case, is not relevant for consideration of whether the Appellant was in law, a person who participated in the primary election in order to determine the jurisdiction of the Lower Court to entertain the action. As a reminder, the law is that only the Appellants depositions are relevant and material for the determination of the issue. See Elelu-Habeeb v. AGF (2012) 13 NWLR (1318) 423,; Olugbemi v. Lawrence (2017) Ohakim v. Agbaso (2010) 19 NWLR (1226) 172, Elehu-ita 16 NWLR (1591) 1209 @ 242.
In fact, the mere fact the result of the primary election is shown to have scores for the Appellant is no credible evidence to show that the Appellant in fact and law participated or took part in the election to nominate a candidate of the 1st Respondent in view of the unequivocal and emphatic statement on oath by the Appellant that he was excluded from the participation in the primary election and that the abysmal low scores shown on the result were allocated to him at the end of the primary election.
In the above premises, the Lower Court was on the firm terrain of the law when it held that by his own evidence on oath, the Appellant was excluded from participating in the primary election in question and so did not participate in said election to qualify as an aspirant for the purpose of the provisions of Section 87(9) of the Electoral Act to be clothed with the requisite locus standi to properly invoke or activate the jurisdiction of the Lower Court to adjudicate over the suit he brought before it by which he sought to challenge the primary election.
Once more, the Lower Court is right in its finding that:-
From the avernments, the paragraphs of the affidavit in support which was personally deposed to by the Plaintiff, it is clear by his own showing that the Plaintiff was contesting his arbitrary exclusion and deprivation from contesting the primary election in this case. This is an admission on his part of the fact that he did not take part in the election, having been excluded.
It follows that since the Plaintiff claimed he was excluded from taking part in the primary he is not qualified to be described as an aspirant. Not being an aspirant, the Plaintiff lacks the locus standi to challenge the conduct of the party primary that was conducted by the 1st Defendant and on 7th December, 2014.
In the result, I find no merit in the arguments of the learned for the Appellant that there was credible evidence in the Affidavit in support of the originating summons filed before the Lower Court to show that the Appellant participated in the primary election in question to qualify as an aspirant who is clothed with the requisite legal standing under the provision of Section 87(9) of the Electoral Act, 2010, to challenge the conduct of the said primary election.
This position has demonstrated that the Lower Court properly appraised the material facts and evaluated or assessed the relevant Affidavit evidence of the Appellant in the determination of whether or not its jurisdiction was properly activated or invoked, in law, by the Appellant.
Since the jurisdiction of the Lower Court was not properly activated or invoked by the Appellants suits as a legal consequence, this Court also lacks the appellate jurisdiction to accept or accede to the invitation by the Appellant to invoke the provisions of Section 15 of the Court of Appeal, Act. Obi v. INEC (2007) 11 NWLR (1046) 560, Olofu v. Itodo (2010) 18 NWLR (1225) 545.
In the final result, this appeal fails for lacking in merit and it is dismissed. As a consequence, the Ruling by the Lower Court striking out the Appellants suit on ground of want of jurisdiction is hereby affirmed.
Parties shall bear their respective costs of prosecuting the appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in complete agreement with the robust judgment prepared by my learned brother Mohammed Lawal Garba, J.C.A. (Hon. P.J.), which I had the privilege of reading in print.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft copy of the lead judgment just delivered by my Lord MOHAMMED LAWAL GARBA, JCA and I agree that the Appeal lacks merit and I also join my brother in dismissing same.
Appearances:
O. E. Ogungbeje For Appellant(s)
Respondents not represented For Respondent(s)
