THE NATIONAL CHAIRMAN, ALL PROGRESSIVES GRAND ALLIANCE & ORS v. BARR. ONYENEKE AKACHI
(2019)LCN/13142(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2019
CA/OW/73/2019
RATIO
LOCUS STANDI: NATURE AND DEFINITION
The nature and denotation of locus standi has been further explained by his Lordship of the Apex Court in the case of DR. TOSIN AJAYI VS PRINCESS (MRS.) OLAJUMOKE ADEBIYI & ORS (2012) 8 S.C.M. 1 AT 26 B-1 TO 27 A-C per ADEKEYE, JSC who held:
“Locus Standi is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. The guiding principles to determine whether a person has locus standi or not are:
(a) He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
(b) The fact that a person may succeed in the action is immaterial.
(c) Whether the civil rights and obligations having being infringed depends on the particulars of the case.
(d) The Court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are:
(a) The action must be justifiable.
(b) There must be a dispute between the parties. INAKOJU VS. ADELEKE; AKINNUBI VS. AKINNUBI, ADESOKAN VS. ADEGOROLU; A. G. KADUNA STATE VS. MALLAM UMARU HASSAN;ELENDU VS. EKWOABA.PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
LOCUS STANDI: LOCUS STANDI AND JURISDICTION ARE INTERWOVEN
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action.PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
LOCUS STANDI: WHEN CAN THE ISSUE OF LOCUS STANDI BE RAISED?
Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself; suomotu
The issue can be raised after Plaintiff has duly filed his pleadings by a motion and or in a statement of defence. Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. OWODUNNI VS. REGISTERED TRUSTEE OF C.C.C; MADUKOLU VS. NKEMDILIM; KLIFCO VS. HOLZMANN.PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. THE NATIONAL CHAIRMAN, ALL PROGRESSIVES GRAND ALLIANCE
2. ALL PROGRESSIVES GRAND ALLIANCE
3. MR. ANDREW CURTIS AMAECHI Appellant(s)
AND
BARR. ONYENEKE AKACHI Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against part of the judgment of the Federal High Court, Owerri Judicial Division, delivered by Justice M. T. Salihu J. on the 11th day of February, 2019 in Suit NO. FHC/OW/CS/126/2018.
In the Court below, the plaintiff took out an Originating Summons against the defendants in which he raised the following questions for determination by that Court:-
?1. Whether based on the combined reading and interpretation of Part IV Section 39(1) a-g, 39(2) a-f and 40(1) a-f of the All Progressives Grand Alliance Electoral guideline for Primary Elections 2018, and the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Plaintiff is qualified to contest for the post of member Imo State House of Assembly under the platform of All Progressives Grand Alliance.
?2. Whether based on the combined reading and interpretation of Part IV Section 39(1) a-g, 39(2) a-f and 40(1) a-f of the All Progressives Grand Alliance Electoral Guideline for Primary Elections 2018, and the relevant provisions of the 1999 Constitution of
1
the Federal Republic of Nigeria (as amended), the 5th Defendant is qualified to contest for the post of member Imo State House of Assembly under the platform of All Progressives Grand Alliance.
3. Whether based on Section 87 of Electoral Act 2010 (As Amended), the 5th defendant could be returned elected as the candidate for the 4th defendant for Ahiazu Mbaise Local Government Area State house of Assembly even when there was no direct or indirect election conducted by the 4th defendant for that purpose.
4. Whether the omission of the name of the Plaintiff as list of aspirants published by the 4th Defendant on the 4th day of October 2018, for the House of Assembly contest for AhiazuMbaise Local Government Area by the 4th Defendant is justified under any provision of the All Progressives Grand Alliance Electoral guidelines for the Primary Elections 2018.
5. Whether the publication of the names of aspirants (result of screening) on the notice board on the 4th day of October 2018, being the same date for the conduct of Primary Election to the seat of House of Assembly conforms with the provisions of Section 42 and 43 of the All Progressives Grand
2
Alliance Electoral guidelines for Primary Elections 2018.
6. Whether the decision to submit the name of the 5th Defendant as the winner of House of Assembly Election Primaries to Independent National Electoral commission where there was no Election held for that purpose contravenes Section 46 (9) of the All Progressives Grand Alliance guidelines for Primary Elections 2018.
7. Whether the Plaintiff is entitled to be declared nominated and winner of the House of Assembly seat for AhiazuMbaise LGA by the 1st to 4th Defendants or their agents being the only qualified candidate (as provided for in sections 39 & 40 of the APGA guidelines for Primary Election 2018, for the seat of House of Assembly for AhiazuMbaise Local Government Area and his name submitted to the 6th Defendant for recognition.
8. Whether the omission of the name of the Plaintiff as shown on the published list on the notice board of aspirants by 1st-4th Defendant for House of Assembly seat in Imo State on 4/10/2018 and the failure to notify the Plaintiff of the reasons for such is right/justified and whether it is not an infringement on his right.?
3
The Originating Summons was supported by a 33 paragraph affidavit and a written address (pages 5?8 and 89?93 of the Record respectively).
The Plaintiff then sought the reliefs contained at pages 2?3 of the Record thus:-
?1. A declaration of this Honourable Court that the plaintiff is qualified and met all the requirement to contest for the post of the House of Assembly seat for AhiazuMbaise Local Government Area.
2. A declaration that the omission of the name of the Plaintiff from the list of aspirants to House of Assembly seat under the platform of All Progressives Grand Alliance is wrong and not justified.
3. A declaration that the publication of the list of aspirants (result of screening of House of Assembly aspirants) on 4/10/2018 being the same date for the conduct of the Primary Election is wrong and contravenes the provisions of the All Progressives Grand Alliance Electoral guidelines for Primary Elections 2018.
4. A declaration of this Honourable Court that the 5th Defendant is not qualified to contest for the seat of the House of Assembly position for AhiazuMbaise Local Government Area having not met the requirements
4
of Sections 39 and 40 of the All Progressives Grand Alliance Electoral guidelines for Primary Elections 2018.
5. A declaration of this Honourable Court that the decision and submission of the name of the 5th Defendant or any other person other than the Plaintiff?s name to the 6th Defendant as the candidate of the 4th Defendant for Imo State House of Assembly Election is wrong and hereby set aside.
6. A declaration of this Honourable Court that the Plaintiff is entitled to be declared nominated and winner of the House of Assembly seat for AhiazuMbaise Local Government by the 1st to 4th Defendants or their agents being the only qualified aspirant of the 4th Defendant for Imo State House of Assembly seat for AhiazuMbaise LGA State Constituency.
7. An order of this Honourable Court for the name of the Plaintiff to be submitted by the 1st to 4th Defendants to the 6th Defendant as the candidate of 4th Defendant for the seat of House of Assembly for AhiazuMbaise Local Government Area of Imo State and for the 6th Defendant to recognize same.
8. A declaration that the omission of the name of the Plaintiff as shown on the published list on the
5
notice board of aspirants by 1st to 4th Defendants for the post of House of Assembly member and failure to notify the Plaintiff with any cogent and verifiable reason is an infringement on his right and thereby wrong.
9. An order directing the 2nd to 4th Defendants to pay the Plaintiff the sum of N100,000,000.00 (Hundred Million Naira Only) being damages for the said omission of the name of the Plaintiff from list of aspirants to Imo State House of Assembly by the 2nd to 4th Defendants.
10. An Injunction restraining the 4th Defendant from submitting the name of the 5th Defendant or any other person apart from the Plaintiff as the Candidate of All Progressives Grand Alliance for AhiazuMbaise Local Government Area State House of Assembly to the 6th defendant.
11. Cost of the action
And such further order(s) or reliefs as the Honourable Court may find the Plaintiffs entitled to in law or equity.?
?Upon being served with the processes of the Plaintiff, the 3rd, 4th & 5th Defendants filed a Counter affidavit and written address in opposition to the Originating Summons of the Plaintiff (see pages 105?107 and 112?125 of the Record respectively).
6
The case went to trial and judgment was delivered partially in favour of Plaintiff, awarding to him N25,000,000.00 as damages
Dissatisfied with part of the decision, the Defendants have appealed to this Court, by filing a notice of Appeal on 21st February, 2019 containing 3 grounds of appeal on pages 163-165 of the Record of appeal, hereinafter referred to as ?the Record?. Henceforth in this judgment, I shall refer to the Defendants as Appellants and the Plaintiff as Respondent.
Now the grounds of appeal shorn of their particulars are as follows:-
?GROUND 1
The learned trial judge erred when he assumed jurisdiction in a pre-election matter challenging the conduct of the primaries of a political party by a plaintiff who did not participate in the primary election.
GROUND 2
The learned trial judge erred when he held that the act of the 4th Defendant in the trial Court by not publishing the plaintiff?s name as cleared or not cleared is a violation of the right of the plaintiff.
GROUND 3
That the trial judge erred when he awarded cost of N25,000,000.00(Twenty five million
7
Naira) against the 4th plaintiff (sic) in favour of the plaintiff when the plaintiff failed to establish loss of that magnitude.?
As a relief the Appellants sought:-
?An order setting aside the damages of N25,000,000.00 (Twenty Five Million Naira) only contained in the judgment delivered by Hon. Justice M. T. Salihu on 11/2/2019.?
The summary of the facts of this case is as follows:-
In September 2018 the Respondent indicated interest in contesting for the seat of House of Assembly for AhiazuMbaise L.G.A constituency of Imo State under the All Progressives Grand Alliance party. He paid N1,000,000.00 for expression of interest and nomination form. He went through the processes that would qualify him for the primary election of the Party.
However he was disqualified from contesting the primary election which took place on 4th October 2018. Hence he took out the Originating Summons as aforestated.
?The appellants withdrew the names of the 2nd, 3rd and 5th Respondents from the appeal and same were struck out thus:- 3rd Respondent on 26/3/2019, while 2nd and 4th Respondents on 1/4/2019, leaving only the 1st Respondent as
8
the sole respondent in this appeal.
Emeka Obegolu Esq. settled the Appellants? Brief of Argument and Reply Brief filed on 14/3/2019 and 3/4/2019 respectively. O. O. Amuzie Esq. settled the Respondent?s Brief which was filed on 1/4/2019.
The appeal was heard on 3/4/2019 on which date O. O. Amuzie Esq. adopted the Respondent?s brief in which he incorporated a Preliminary Objection, which notice was filed on 1st April, 2019, and then urged us to uphold same and strike out the appeal for being incompetent. Emeka Obegolu Esq. on the other hand, adopted the Appellants? Brief and Reply Brief and urged us to overrule the Preliminary Objection, hear and allow the appeal as same is competent.
Now, from the three grounds of Appeal, the Appellants formulated three issues for determination thus:-
?1. Whether, all the fact and circumstances considered, the trial Court was seized of the requisite jurisdiction to determine this Suit after concluding that the Plaintiff lacked the necessary locus standi to maintain his action?. (distilled from Ground 1)
?2. Whether all the fact and circumstances considered the trial
9
Court was right in awarding damages in a suit that it had no jurisdiction to entertain?. (distilled from Ground 3)
?3. Whether the Plaintiff/Respondent established a claim for damages at the lower Court to warrant the award of N25,000,000 (Twenty-Five Million Naira) (distilled from Grounds 2 and 3).?
The Respondent on his part formulated a lone issue for determination thus:-
?Whether the award of damages against the 2nd Appellant is proper in law given the facts and circumstances of the case (Grounds 1 and 3)?.
I shall now take the Preliminary Objection of the Respondent before proceeding to the main appeal, if necessary i.e. in the event that the preliminary objection fails and is overrulled, otherwise the appeal terminates at that level. SeeGALADIMA VS. TAMBAI (2000) 6 SC (Pt. 1) 196 at 207.
The notice of the Preliminary Objection has 5 grounds which are:-
?1. That ground 1 of the Notice of Appeal is vague, unreasonable and not related to or flow from the decision appealed against.
2. That issue 1 for determination founded on ground 1 is incompetent. The said issue 1 does not flow from the
10
said ground 1 of the Notice of Appeal.
3. That ground 2 of the Notice of Appeal does not relate to or flow from the decision appeal (sic) against.
4. That issue 2 for determination not formulated from any of the grounds of appeal is incompetent.
5. That issue 3 for determination formulated from a combination of incompetent ground 2 and ground 3 of the Notice of Appeal is incompetent.
(See Page 3 of the Respondent?s Brief of Argument)
The Respondent then formulated a lone issue for the determination of the Preliminary Objection to wit:-
?Whether grounds 1 and 2 of the Notice of Appeal and issues 1, 2 and 3 of the Appellants? brief of argument are competent in law
Learned Counsel argued that by Order 7 Rule 3 of the Court of Appeal Rules 2016, a ground of appeal to be competent shall neither be vague, causing confusion, nor unreasonable. He then submitted that ground 1 of the Notice of Appeal at pages 163?166 of the Record is confusing and therefore unreasonable, for the following reasons:-
(1) That it has not clearly stated the complaint against the decision of the lower Court.
11
(2) That it does not flow from or is related to the said decision.
(3) That there is no factual controversy between the parties to which the said ground 1 is related or tied.
(4) That there is no live issue in respect of which this Court can adjudicate.
(5) That the judgment of the lower Court having been given in favour of the Appellants, cannot form a ground of complaint against the said decision, relying on OBA ADEYINKA VS. B.P. NIG. LTD. (1972) ALL N.L.R. 45; and ALHAJI SUNMONU VS. ASHOROTA (1975) 1 N.M.L.R. 16.
He then urged us to strike out ground 1 together with issue 1 distilled therefrom, relying on DADA VS. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134 at 165; WAEC VS. YANJU (2008) 6 MJSC 1 20?21 para G and OTU VS. A.C.B. (2008) 3 MJSC 191, 205 PARAS C?D.
In respect to ground 2 of the Notice of Appeal, it was submitted that same does not flow from the judgment appealed against, as it does not attack the ratio decidendi of the judgment, hence same is incompetent and together with issue 2 distilled therefrom, should be struck out, relying on EGBE VS. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 590; TERIDOM (NIG) LTD. VS. CAMP LAVET (NIG)
12
LTD.& ORS. (2018) LPELR ? 43893 (CA) and ANGADI VS. P.D.P.(2018) 15 NWLR (Pt. 1641) 123 para F.
Regarding ground 3 and issue 3 distilled therefrom, learned counsel submitted that same are incompetent and should be struck out, as they only question the quantum of damages awarded and nothing more, relying onA. G. KWARA STATE VS. LAWAL (2018) 3 NWLR (Pt. 1606) 266 at 288 para G.
In conclusion learned Respondent?s Counsel urged us to uphold the Preliminary Objection and strike out the entire appeal as presently constituted for being incompetent.
In reply Emeka Obegolu Esq. for the Appellants formulated one issue to wit:-
?Whether the Preliminary Objection of the Respondent to the instant appeal ought to be upheld.?
Obegolu Esq. stated that a ground of appeal is the totality of the reasons why the decision complained against is considered wrong by the party appealing, which gives both the Court and the Respondent sufficient notice and information of the precise nature of the Appellants? complaint against the judgment appealed against, and an insight into the grouse or grievance of the Appellant.
13
It was submitted that grounds 1 and 3 are competent and should not be struck out by the Court for the following reasons:-
(1) That the Court cannot deny the Appellants their right of appeal when on the face of the ground of appeal, notable issues arise for consideration, relying on NGERE VS. OKURUKET ?XIV? (2017) 5 NWLR (Pt. 1559) 465?466 paras H?B.
(2) That Ground 1 is not vague as it is a challenge to jurisdiction of the lower Court when the Respondent lacked the locus standi to challenge a pre-election matter and therefore not unreasonable as canvassed by the Respondent.
(3) That the award of damages to the Respondent after the lower Court held that he was not an aspirant ousted the jurisdiction of the trial Court, relying on PDP VS. SYLVA (2012) 13 NWLR (Pt. 1316) 85 at 126.
The Appellants? learned Counsel in paragraph 1.18 of their Reply Brief abandoned Ground 2 of their Grounds of Appeal and issue 2 distilled therefrom. Same is hereby struck out.
?However issue 2 is not distilled from Ground 2 but from Ground 3 and it is issue 3 that is distilled from a combination of Grounds 2 and 3 of the Grounds of Appeal.
14
I shall return to this point later in this judgment.
Now, the Appellants? Counsel, having abandoned Ground 2, submitted that despite the abandonment with the attendant consequences of its being struck out, a lone ground can sustain an appeal where such a ground is competent, relying on ABE VS. UNILORIN (2013) 16 NWLR (Pt. 206) para E (sic). Learned Counsel then submitted that in the eyes of the law, if issue 2 and ground 2 are no longer existing, then issue 3 submitted for determination is now only distilled from Ground 3 and therefore valid. He submitted that the case of A.G. KWARA STATE VS. LAWAL (2018) 3 NWLR (Pt. 1606) 266 at 288 relied upon by the Respondent is not helpful in this case. Furthermore that where there exist defective particulars in a ground of appeal, such would not necessarily render that ground itself incompetent, relying on OMISORE VS. AREGBESOLA (2015) NWLR (Pt. 1482) 205; and EFCC VS. YANATY PETROCHEMICAL LTD. (2017) 3 NWLR (Pt. 1552) 194 paras A?D. Learned Counsel cited SOSANYA VS. ONADEKO (2005) 8 NWLR (Pt. 925) 185 and submitted that Grounds 1 and 3 of the grounds of appeal in this case have passed the test therein
15
contained as handed down by the Apex Court. He then urged us to overrule the Preliminary Objection and determine the appeal on the merit.
Now, as stated earlier, the Respondent has brought this 5 ground preliminary objection under Order 10 Rule 1 of the Court of Appeal Rules 2016, challenging the competency of this appeal and by extension its hearing, urging that it be struck out.
I shall therefore examine the grounds of objection as hereunder:-
Ground 1
That ground 1 of the Notice of Appeal is vague, unreasonable and not related to or flows from the decision appealed against. Now Ground 1 of the Notice of Appeal states:-
?The learned trial judge erred when he assumed jurisdiction in a pre-election matter challenging the conduct of the primaries of a political by a plaintiff who did not participate in the primary election.?
The Respondent relied on Order 7 Rule 3 of the Rules of this Court 2016, and argued that Ground 1 is vague and does not clearly state the complaint against the decision of the lower Court.
?The operative words in this ground of objection are ?vague? and ?unreasonable?. I
16
shall examine these terms to see whether or not Ground 1 of the Notice of Appeal is so afflicted. The term ?vague? is not defined in the Rules of this Court. But the BLACK?S LAW DICTIONARY TENTH EDITION at page 1783 defines ?vague? inter alia as ?imprecise or unclear by reason of abstractness; not sharply outlined; indistinct; uncertain.?
From our case law, it has been held that ?the term vague connotes something woolly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and nebulous, uncertain or shadowy?, see NUHU VS. OGELE (2003) LPELR?2077 (SC) Pats?Acholonu JSC at page 9 paras E?F.
From the Ground 1 set out above, can it be said that it is afflicted with vagueness? I make bold to answer this question in the negative. The ground unquestionably challenges the jurisdiction of the lower Court with particulars clearly set out which are as follows:-
?1. The plaintiff in the trial Court in his affidavit disclosed that he did not participate in the primary election of the 4th defendant which he sought to challenge.
17
2. All the declarations sought by the plaintiff at the trial Court were for the nullification of the primary election conducted by the 4th Defendant at the trial Court.
3. The plaintiff in the trial Court did not contest the primaries he sought in the main to nullify.? (see pages 163?164 of the Record).
At the trial, the Appellants (as the 3rd?5th Defendants) in their submissions (pages 140 -141 of the Record) raised as their first issue the lack of locus standi of the Respondent (as plaintiff) to institute this action. It is this same issue distilled from ground 1 that is being pursued before us.
Let me give an example of a ground of appeal which is afflicted with vagueness in order to bring to fore more clearly the difference between a vague ground of appeal and one which is not, using as an example and support the case of NIMASA & ANOR. VS. HENSMOR NIGERIA LTD (2014) LPELR?22462 (CA) where the following excerpt appears at pages 24 ? 26 paras C ? F:-
“I have examined ground four of the Appellants’ grounds of appeal which has been set out above. That ground of appeal alleged that the trial Judge in
18
arriving at his decision did not advert to some provisions of the Merchant Shipping Act 1962 relating to the powers of a surveyor of ships appointed by the Minister of Transport and the exercise of powers of detention and thereby arrived at a wrong conclusion in violation of the rights of fair hearing guaranteed under Section 36 of the Constitution. It then proceeded to give particulars of the said laws that the trial Court did not advert to. Rather than merely listing them, the relevant provisions were set out as particulars. I do not see anything wrong with the particulars of the ground of appeal set out by the appellant. In my humble view, it satisfied the requirements of Order 6 Rule 2(2) and 3 of the Court of Appeal Rules 2011 relied upon to attack it in that it is not vague and clearly sets out the particulars of the error being complained of. The situation here differs from CBN v. Okojie (2002) 8 NWLR (Pt 768) 48 @ 61 B-E. In that case the sole ground of appeal was couched thus: “The Ruling of the Court of Appeal is erroneous in law in that it did not apply the correct legal principle because: (i) It is settled principle of law that an amendment which
19
seeks to introduce a new issue, on which the adverse party will be deprived of the right to amend his statement of defence and give evidence thereon will not be granted. (ii) It is also a settled principle of law that an amendment which seeks to torpedo any grounds of appeal of an appellant will not be granted. (iii) The appellants had revealed to the plaintiffs and the trial Court the purport of the pleadings and despite this the plaintiff did not apply to amend his statement of claim.” On the above ground of appeal, Uwaifo J.S.C. in his contributory judgment observed: “The ground of appeal in question is supposed to be against the ruling in which the Court below gave leave to make some amendment more or less of a clerical nature. I have no hesitation in agreeing with Mr. Okolie’s preliminary objection that the ground of appeal is vague. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when complaint is not defined in relation to the subject or it
20
is not particularized or the particulars are clearly irrelevant.” Unlike the above case where one is not exactly sure what the complaint is all about Ground 4 in this appeal before us cannot be said to be couched in such a manner that its meaning is uncertain or that it is difficult to understand its import. On the contrary it is precise and to the point. The ground alleged that the trial Judge in arriving at his decision did not advert to some provisions of the Merchant Shipping Act 1962 relating to the powers of a surveyor of ships appointed by the Minister of Transport and the exercise of powers of detention and thereby arrived at a wrong conclusion. Instead of just listing the relevant sections, their full provisions were set out as particulars. This did not in any way in my view detract from the meaning of the ground of appeal. It did not thereby render the ground vague, ambiguous or imprecise. The ground is not general in terms. On the contrary, it stated precisely the nature of the error complained of; that the trial Judge failed to consider the named provisions of the Merchant Shipping Act 1962 before arriving at its decision. The complaint is quite
21
clear. The Respondent’s preliminary objection to the competence of ground four of the Amended Notice of Appeal is overruled.”
In this case I cannot find such vagueness in the ground 1 of the Ground of Appeal of the Appellants. To me this ground is clear and certain.
The next term is ?unreasonableness?. The BLACK?S LAW DICTIONARY TENTH EDITION at page 1772 defines the word ?unreasonable? inter alia as ?not guided by reason;? ?irrational? or ?capricious?. Going by the meaning of the word unreasonable captured above and having regard to ground 1 of the grounds of appeal in this matter, can it be said that it is unreasonable? I am afraid not. Having held that ground 1 is not vague, I also hold that same is not unreasonable.
On the complaint that Ground 1 does not relate to or flow from the decision of the trial Court I hold the candid view that it relates to or flows from the decision of the trial Court because it is clear on page 155 of the Record that the findings of the trial Court make ground 1 to relate to or flow from the judgment. I so hold.
22
In respect to Ground 2, same had been withdrawn and is hereby struck out together with the issue distilled therefrom. Having been so withdrawn and struck out, the complaint of the Respondent on the ground is of no moment.
I had earlier indicated that I shall return to Ground 2 of the appeal which had been struck out. It is clear that it is issue 3 which was distilled from grounds 2 and 3. Now I hold the candid view that the Appellant cannot possibly distill issue 3 from grounds 2 and 3, ground 2 having been struck out. Therefore issue 3 distilled from ground 2 of appeal must of necessity exit with it. Also it will amount to proliferation of issues to split ground 3 into two issues. Proliferation of issues has been frowned upon by the appellate Courts. See for instance the case of NDUUL VS. WAYO & ORS. (2018) LPELR-45151 (SC) page 19 paras B-F where it was held as follows:-
“It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but their content and quality. Issues for determination should not be
23
unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided. See: Ogbuanyinya vs Okudo (No. 2) (1990) 4 NWLR (146) 551 @ 567; Clay Industries (Nig.) Ltd vs. Aina & Ors (1997) 8 NWLR (pt. 516) 208; Ogunyade vs. Oshunkeye (2007) 15 NWLR (Pt.1057) 218.”
Consequently issue 3 must be and is hereby struck out.
On the whole the preliminary objection is upheld in part, that is to say in respect of Grounds 2 and 3 which have exited with issues 2 and 3 of the Appellants? Brief of Argument. However the preliminary objection is overruled in respect to Ground 1 from which issue 1 is formulated. The appeal will be considered in respect to Ground 1 and issue 1 formulated therefrom.
I shall now give consideration to the main appeal.
?Having summarized the facts of this case while considering the preliminary objection, and having held that the preliminary objection succeeds
24
in part, and having struck out Grounds 2 and 3 together with the issues distilled therefrom, I am now left with issue 1 distilled from Ground 1 to consider.
Issue 1 states:-
?Whether, all the fact and circumstances considered, the trial Court was seized of the requisite jurisdiction to determine this Suit after concluding that the Plaintiff lacked the necessary locus standi to maintain his action?. (distilled from Ground 1)
For better understanding and appreciation of this issue I shall and hereby reproduce Ground 1 of the Grounds of appeal at page 163 of the Record. It goes thus:-
?GROUND 1
The learned trial judge erred when he assumed jurisdiction in a pre-election matter challenging the conduct of the primaries of a political party by a plaintiff who did not participate in the primary election.?
Undoubtedly this ground and the issue 1 distilled from it challenges the jurisdiction of the lower Court in proceeding to conclude the suit the way and manner it did.
?It is trite that the issue of jurisdiction is always so fundamental in litigations that the Court must have jurisdiction before it can
25
exercise any judicial power in it. See ZENITH BANK VS. ARCHIBONG & 2 ORS (2013) LPELR?20204 (CA) at page 16 paras D?F; AKINBOBOLA VS. PLISSON FISKO (1991) 1 NWLR (Pt. 167) 270 at 288; A. G. LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (Pt. 111) 552.
Jurisdiction deals with the power of the Court to adjudicate and its competence to entertain and determine a matter. Now a Court of law can be said to be competent to adjudicate when:-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU VS. NKEMDILIM (1962) 2 NSCC 374, and ZENITH BANK VS. ARCHIBONG (supra).
?All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. This means that where a Court has no jurisdiction
26
to determine a case but it proceeds to do so, it becomes an exercise in futility as the decision arrived at in such a case is a nullity, no matter how well conducted and how brilliantly the judgment was written. It is a wasted judicial investment.
In this instant case requirement NO. C is called into question.
It is the law that in determining whether the subject matter of a suit falls within the jurisdiction of a Court, it is the claim of the plaintiff that determines it. In OBI VS. INEC (2007) 11 NWLR (Pt. 1046) 436 this Court held as follows:-
?It is also relevant to emphasize that the determining factor giving rise to the jurisdiction of the lower Court stems from the claim of the appellant as it is trite that the subject matter of the action shall determine jurisdiction.?
In the instant case the subject matter is the relief claimed by the Respondent at the lower Court touching on his nomination and sponsorship for the House of Assembly contest for the AhiazuMbaise Local Government Area in accordance with the Electoral Guidelines of the All Progressives Grand Alliance for primary elections.
27
If I may ask, is this subject matter within the jurisdiction of the trial Court?
The learned Appellants? Counsel has submitted, relying on PRINCE JOHN OKECHUKWU EMEKA VS. LADY MARGERY OKADIGBO & ORS. (2012) LPELR-9338 (SC) and Section 87(9) of the Electoral Act 2010 (as amended), that in order to clothe the Court with jurisdiction the subject-matter must be the type it can adjudicate upon and in this case it is only an aspirant in the primary election that can invoke the jurisdiction of the Court.
Learned Counsel referred us to Section 156 of the Electoral Act 2010 (as amended) and PDP VS. SYLVA (2012) 13 NWLR (Pt. 1316) 85 at 126 in respect of who an aspirant is and submitted that the Respondent in this case was not an aspirant and so ousted the jurisdiction of the trial Court in entertaining and determining this suit. This is so, submitted learned Appellants? Counsel, as the trial Court held that the Respondent was not an aspirant and so resolved the issues for determination against him.
Learned Appellants? Counsel then urged us to hold that the learned trial Judge was wrong in proceeding to determine the case awarding damages to the
28
Respondent, having resolved all the issues of locus standi against him, and then to allow the appeal.
The Respondent?s Counsel in the Respondent?s Brief of Argument formulated a lone issue thus:-
?Whether the award of damages against the 2nd Appellant is proper in law given the facts and circumstances of the case? (Grounds 1 and 3)
I have already struck out Grounds 2 and 3 of the Grounds of Appeal at the preliminary objection stage. So any issue flowing from them and submissions in respect thereof are of no moment. This issue formulated by the Respondent?s Counsel therefore bears no relevance to the determination of this appeal. However the learned Counsel has adequately responded to the submissions of the Appellants? Counsel on the issue of jurisdiction of the lower Court.
?Both Counsel in this case are ad idem, which is trite, that to determine the jurisdiction of the lower Court to entertain the suit of the Respondent, recourse can only be had to the claims of the Respondent at the lower Court. Learned Counsel argued that the Respondent had two causes of action before the lower Court which, one was found and
29
held by the trial Court in favour of the Appellants that the Respondent lacked the locus standi, having not participated in the primary election, and the second being omission or unlawful exclusion of the Respondent and which attracted the award of damages in his favour.
Learned Counsel quoted the judgment of the trial Court at page 158 paragraph 2, page 160 lines 4?8 and submitted that the Appellants were not consistent in the presentation of their case which ought not to be so, relying on YAHAYA VS. DANKWAMBO (2016) 7 NWLR (Pt. 1511) 284 at 336 paras A?E. He argued that the Appellants at the lower Court did not state that the lower Court lacked jurisdiction but that the Respondent had no locus standi to contest the election of the 3rd Appellant at the primary election conducted on the 4th October, 2018. He then submitted that all the cases relied upon by the Appellants are irrelevant and therefore cited out of con.
?It was the contention of the Respondent?s learned Counsel that the award made to the Respondent was made based on invitation of the Appellants as evidenced on page 142 lines 6?10 of the Record. Therefore the
30
Appellants should not be seen to complain against the decision of the trial Court. Let me quickly dispose of the issue of an invitation by the Appellants to the Court below to award damages to the Respondent, as contained on page 142 lines 6?10 of the Record which reads as follows:-
I invite the Court and commend the Court the case of WILLIAMS ANGADI VS. PDP AND ORS (2018) Law Pavilion Electronic law Report. My lord, a member of a political party that does not participate in an election all that the Court can grant to him is damages
The jurisdiction of the Court below is called to question in this issue. It is trite that jurisdiction cannot be conferred on a Court where none exists. In the case ofOYEROGBA VS. AKINYEMI & ORS. (2016) LPELR?41940 pages 11?14 paras E?A this Court has this to say:-
“Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the Defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. In
31
effect, there is no case before the Court for adjudication and therefore parties cannot be heard on the merits of the case. See the case of OKOLO vs. UNION BANK OF NIGERIA LTD (2004) 3 N.W.L.R. (PT. 859) PG. 87 at 93. The consent of either parties be it Appellant or Respondents is not relevant on objection challenging the jurisdiction of the Court because the issue of jurisdiction being radical and fundamental to the vires of the Court to entertain a case must be disposed of before any further step in the case is taken, particularly, the hearing of evidence. Also in the case of ONYEMA vs. OPUTA (1987) 3 N.W.L.R. (PT. 259), the Court opined thus:- “Submitting to the jurisdiction of a Court is no answer to want of jurisdiction for a total want of jurisdiction cannot be cured by the assent of the parties. If the Court does not possess an initial jurisdiction over the subject matter, it is not possible that the consent of an individual could confer such jurisdiction.” See also the case of FIRST BANK OF NIGERIA PLC vs. TSOKWA (2003) F.W.L.R. (PT. 153) PG. 205 where the Court held that jurisdiction cannot be conferred by agreement or consent of the parties. See also
32
the case of MOBIL PRODUCING vs. MONOKPO (2003) 16 N.S.C.Q.R. (PG. 448) at 529 paras C – G where the Supreme Court had this to say:- “The law is elementary that a party cannot or has not the competence to waive lack of jurisdiction of the Court. Where a Court lacks jurisdiction, the entire proceedings however well conducted are a nullity and a party cannot in law resuscitate or revive a nullity by waiver … jurisdiction being the forerunner of the judicial process, cannot by acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have the legal right to donate jurisdiction on a Court that lacks it.” In the absence of jurisdiction, the entire case lacks the pillar upon which to stand. Every step taken thereafter remains null and void.”
In their Reply Brief the Appellants submitted that the challenge to the Respondent?s locus standi is the same as a challenge to the jurisdiction of the lower Court to entertain and determine the suit of the Respondent. We are urged to allow the appeal and set aside the decision of the lower Court as it pertains to the award of damages in favour of
33
the Respondent and against the 2nd Appellant.
Now, while the Appellants persistently and consistently argued that the Respondent lacked locus standi to present this suit at the lower Court, the Respondent?s learned Counsel argued that an attack against the standing of the Respondent in this case is not an attack on the jurisdiction of the lower Court to adjudicate on the matter. In his Respondent?s Brief at page 6 paragraph 5.01 the Respondent?s Counsel inter alia stated thus:-
?5.01. In the judgment of the lower Court contained at pages 143?163 of the records, all issue (sic) concerning the challenge to the 3rd Appellants? selection, nomination or sponsorship as the candidate of the 2nd Appellant for the AhiazuMbaise Constituency of Imo State House of Assembly was effectively and completely resolved in favour of the Appellants and against the 1st Respondent. The 1st Respondent did not appeal against the failure of this particular cause for (sic) action. Therefore, the dancing around of re-argument by the Appellants of issues adjudged in their favour by their argument in issue 1 is not proper. This 1st
34
Respondents particular cause of action is settled with finality and should not be resurrected under any guise by the Appellants.
The issue to be resolved in this appeal therefore is narrow as it is only issue 1 that is left for resolution: that the trial Court adjudged the Respondent not an aspirant to the seat of House of Assembly of AhiazuMbaise Local Government Area of Imo State and so by the provisions of Section 87(9) of the Electoral Act 2010 (as amended) has no locus standi to bring this suit in the lower Court. This is contained in the judgment of the trial Court on page 155 which is hereunder reproduced as follows:-
From the above depositions contained in the affidavit in support of the Plaintiff and Exhibit AK5 he attached the same and depositions also contained in the Counter-affidavit of the 3rd, 4th and 5th Defendants Plaintiff was not amongst the candidates nominated by the All Progressives Grand Alliance (APGA) to contest for the seat of House of Assembly, Imo State of AhiazuMbaise Local Government Area conducted on 4th day of December, (sic) 2018 at Castle Hotel,
35
AforOru,… In the instant suit Plaintiff is not an aspirant he having not been nominated by the 4th Defendant to contest the Primary election held on 4th day of October, 2018
Accordingly, issue number one is resolve (sic) in favour of the 4th Defendant.
Now, it is only logical that the Respondent having not been an aspirant and so could not legally be competent to file the suit, would be regarded in law as lacking the requisite locus standi to file the suit in the first place.
The learned Respondents Counsel has submitted that lack of locus standi by the Respondent at the lower Court is distinguishable from the jurisdiction of the lower Court to entertain the suit on the basis that the Respondent had two causes of action, one having failed, the other still subsisted.
?With all due deference to the Respondents learned Counsel the above view does not draw legal support. This is demonstrated in the plethora of cases of
36
our superior Courts of Record especially the Court of Appeal and the Supreme Court. One of the cases isACHONYE & ANOR. VS. EZE & ANOR. (2014) LPELR?23782 pages 23?26 paras A?C. For its elaborate and illuminating treatment of the issue, I hereby reproduce a portion of the judgment in extensor thus:-
?The Law is firmly settled that where there is no locus standi there is no jurisdiction in the Court to entertain the action/suit of the Plaintiff cum Claimant. Also where an action is improperly constituted, whether on the side of the Claimant or Defendant the action is incompetent and no adjudication can validly be undertaken on the suit by a Court. Locus standi is intertwined with jurisdiction. See ALHAJI SAKA OPEBIYI & ANOR VS. LAYIWOLA MUNIRU (2011) 18 NWLR (PT. 1278) 387 at 403 D-F per ADEKEYE, JSC who said:
“Locus Standi is the legal capacity to institute an action in a Court of law. Where a Plaintiff is held to lack locus standi to maintain an action the finding goes to the issue of jurisdiction as it denies the Court of jurisdiction to determine the action.”
The nature and denotation of locus standi has been
37
further explained by his Lordship of the Apex Court in the case of DR. TOSIN AJAYI VS PRINCESS (MRS.) OLAJUMOKE ADEBIYI & ORS (2012) 8 S.C.M. 1 AT 26 B-1 TO 27 A-C per ADEKEYE, JSC who held:
“Locus Standi is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. The guiding principles to determine whether a person has locus standi or not are:
(a) He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
(b) The fact that a person may succeed in the action is immaterial.
(c) Whether the civil rights and obligations having being infringed depends on the particulars of the case.
(d) The Court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are:
(a) The action must be justifiable.
(b) There must be a dispute between the parties.
38
INAKOJU VS. ADELEKE; AKINNUBI VS. AKINNUBI, ADESOKAN VS. ADEGOROLU; A. G. KADUNA STATE VS. MALLAM UMARU HASSAN;ELENDU VS. EKWOABA.
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself; suomotu
The issue can be raised after Plaintiff has duly filed his pleadings by a motion and or in a statement of defence. Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. OWODUNNI VS. REGISTERED TRUSTEE OF C.C.C; MADUKOLU VS. NKEMDILIM; KLIFCO VS. HOLZMANN.
The two lower Courts fell into grave error in dismissing the summons filed by the Appellant to raise the legal points of statute
39
of limitation and locus standi by holding that legal points be raised at the conclusion of evidence on the legal reliefs sought by the Plaintiff/Respondent. The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the Court lacks the jurisdiction to entertain it the only order the Court can make in the circumstance is that of dismissal.”
It goes without saying from the authorities that where a party has no locus standi to bring and maintain an action, the Court would lack the necessary vires to assume jurisdiction, entertain and determine the matter.
Therefore, the trial Judge, having dismissed all the claims of the Respondent on the ground that he was not an aspirant, having not participated in the primary election conducted by the 2nd appellant, ought not to have awarded any damages to him. But this he did. And here lies his error.
In the final analysis I hold that the award of damages in favour of the Respondent has no legal basis.
This appeal therefore succeeds as it is meritorious, and is accordingly allowed.
40
Consequently the judgment of the lower Court regarding the award of damages to the Respondent is hereby set aside. The Respondent shall pay cost of N100,000.00 only to the Appellants.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
RITA NOSAKHARE PEMU, J.C.A.: I agree
41
Appearances:
Emeka Obegolu, Esq.For Appellant(s)
O. O. Amuzie, Esq.For Respondent(s)
Appearances
EmekaObegolu, Esq.For Appellant
AND
O. O. Amuzie, Esq.For Respondent
