3PLR – GEORGE T. OGARA V. PATRICK O. ASADU & ORS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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GEORGE T. OGARA

V.

PATRICK O. ASADU & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 27TH DAY OF FEBRUARY, 2014

CA/E/368/2012

3PLR/2014/75 (CA)

 

BEFORE THEIR LORDSHIPS

ADZIRA GANA MSHELIA, JCA

IGNATIUS IGWE AGUBE, JCA

EMMANUEL AKOMAYE AGIM, JCA

 

BETWEEN

GEORGE T. OGARA – Appellant(s)

AND

1. PATRICK O. ASADU
2. CHARLES O. ASOGWA
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

 

REPRESENTATION

George Ogara Esq – For Appellant

AND

1. A. O. Iyamanbhor – Esq For Respondent

 

MAIN ISSUES

1. WORDS AND PHRASES – “NOTWITHSTANDING”: Definition of the term ‘Notwithstanding’

“In NDIC V. Okem Enterprises (2004) 10 NWLR (pt. 880) 107 at 182 para. H. Per Uwaifo, JSC; defined the term ‘notwithstanding’ while interpreting the provision of section 251 of the Constitution which deals with the jurisdiction of the Federal High Court as connoting thus: “When the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that as used in section 251(1) of the Constitution, no provision of that Constitution shall be capable of undermining the said section.” Per AGUBE, J.C.A. (Pp. 61-62, paras. F-B)

2. PRACTICE AND PROCEDURE – COURT – JURISDICTION: Requirement which must co-exist in order to determine whether a court is seised with the requisite jurisdictional competence to entertain and determine any suit before it

“… it is the claim of the Plaintiff as expressed either in his writ of Summons or Statement of Claim or any other originating process, that determines whether a court is seised with the requisite jurisdictional competence to entertain and determine any suit before it. At this juncture, it will not be out of place to resort to the locus classicus of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; where our erstwhile Federal Supreme Court held that a court is said to be competent when: 1. It is properly constituted as to its members and no member is for any reason or the other disqualified to sit; 2. The subject matter of the dispute is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and 3. The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively in order for the jurisdiction of the court to be invoked and exercised by the Claimant or Plaintiff. Thus, where any or all of these basic elements or requirements are lacking and a court be it trial or Appellate, goes ahead to hear and determine a case, the proceeding shall be a nullity no matter how brilliantly and well conducted as well as sound the judgment may be. See Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503 (S.C.); Skensconsult v. Ukey (1981) 7 S.C. 6; Magaji v. Matari (2000) 5 S. C, 46; Alao v, African Continental Bank Ltd. (2000) 6 S. C. (pt 1) 27 and Lufthansa Airlines v. Odiese (2006) (Pt.978) 38; Adetona v. I. G. Enterprises Ltd. (2011) 7 NWLR (pt.1036) 332; Onwuka v. R.T.C.M.Z.C. (2011) 6 NWLR (Pt. 1243) 341 at 359 para D.” Per AGUBE, J.C.A. (Pp. 39-41, paras. G-A)

3. PRACTICE AND PROCEDURE – JURISDICTION – JURISDICTION OF FEDERAL HIGH COURT: Whether the Federal High Court has the jurisdiction to hear and determine who is a candidate to the House of Representatives

“… in the resolution of this first issue on whether the Federal High Court, Enugu Division sitting at Enugu, had the jurisdiction to hear and determine who the candidate of the People’s Democratic Party for the Nsukka/Igbo-Eze South April 2011 Federal Constituency General Elections to the House of Representatives, it would appear that parties are ad idem on the authorities of Seatrucks Nig. Ltd. v. Anigboro (1995) 6 NWLR (Pt. 399) 43; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 (1976) 9 – 10 S.C. (Reprint) 18; Elf-Oil Nigeria Ltd. v. Oyo State B.I.R. (2008) F.W.L.R. (Pt. 138) 1359 at 1367 para. H per Tabai, J.C.A. (as he then was); Nwadike v. Administrator-General of Anambra State (1996) 7 NWLR (Pt. 462) 315 and Ports & Cargo Handling Services Co. Ltd. & 3 Ors v. MIGFO (Nig.) Ltd. & Anor. (2009) 11 NWLR (Pt.1153) 677; per Nwodo, J.C.A. (of blessed memory) all cited by the learned Counsel for the Appellant as well as Hon. Prof. C. Uwazuruike & Anor v. Chief A Nwachukwu & Anor (2012) Vol. 214 LRCN 71 at 86 and Gbagharigha V. Toruemi & Anor (2013) Vol. 215 LRCN 152 at 177 FK; per Ogunbiyi, J.S.C., cited by the learned counsel for 1st Respondent that it is now trite that jurisdiction is a fundamental and threshold issue, the font et origo of adjudication and the lifeblood that animates or ignites the court’s exercise of its adjudicatory powers in any suit before it” Per AGUBE, J.C.A. (Pp. 38-39, paras. F-F)

4. ELECTORAL MATTER – PRIMARIES AND SELECTION OF CANDIDATE: Whether where two parallel primaries were conducted, only the primary conducted by the National Executive Committee which had the right by the Constitution of their Party to so do, could produce the authentic candidate

“… where two parallel primaries were conducted one by the National Executive Committee of the party and the other by the State Executive Committee, only the primary conducted by the National Executive Committee which had the right by the Constitution of their Party to so do, could produce the authentic candidate, it would appear that the decision in Lado v. C.P.C. had been overruled. However even in that case, it would appear that the Supreme Court was silent on whether in the event of the Court not hesitating to declare the choice of a candidate who failed to be nominated through the proper and recognised organ of the Party, unfit and unacceptable, whether the Courts still have no powers to choose as between the two primaries which of them produced the authentic candidate.” Per AGUBE, J.C.A. (Pp. 82-83, paras. F-C)

5. INTERPRETATION OF STATUTE – SECTION 34 OF THE 2006 ELECTORAL ACT: Effect of the introduction of section 34 of the 2006 Electoral Act

“To stem the tide of arbitrariness that characterised the conduct of primary elections and other untoward malpractices by political gladiators and the opprobrium generated within the polity, the National Assembly (introduced) section 34 of the 2006 Electoral Act which provided for a limitation period of 60 days within which a political party may change or substitute its candidate for election and for such substitution to be mandatorily in writing with verifiable reason advanced to INEC. The section also conferred a right on a candidate who was substituted contrary to the provision of section 34 of the Act to challenge such substitution in a court law. There is no doubt as was rightly held by the learned and seminal Law Lord Onnoghen, JSC and his equally erudite brothers Adekeye and Fabiyi JJSC; in their concurring judgments in Lado v. INEC (supra) at pages 622 para A-F and 628; that the introduction of section 34 of the 2006 Electoral Act, did not change, modify or alter the pre-existing principle of non-interference by courts on the internal affairs of a political party as to who its candidate should be but merely restricted the right or power of a political party to change or substitute its candidate at their whims and caprices before an election.” Per AGUBE, J.C.A. (Pp. 59-60, paras. B-A)

6. INTERPRETATION OF STATUTE – SECTION 87 (4) (8) (9) OF THE ELECTORAL ACT 2011: Exception to the substitution of nominated candidates by political parties as provided by the provisions of Section 87(4)(c),(i), (ii), 87(8) and 87(9) of the Electoral Act 2011

“Be that as it may, even though the present Electoral Act 2010 (as amended) does not provide for substitution of nominated candidates by political parties (infact Section 33 of the Act placed on absolute bar on substitution of a Candidate once his/her name has been submitted to INEC except in the case of withdrawal or death of the candidate), there are salutary provisions in sections 87(1) which provides for the holding of Party Primaries for nomination of candidates; 87(4)(c),(i), (ii), 87(8) and more particularly 87(9) thereof which regulate the conduct of parties primaries. For instance, section 87(4)(c) (i) and (ii) which deal with the subject matter of this Appeal that is to say nomination of candidates for any elective positions by a political party, stipulate thus:- “87(4) A political party that adopts the system of indirect primaries for choice of candidate shall adopt the procedure outlined below:- 87(4)(c) in the case of nominations to the position of a Senatorial Candidate, House of Representatives and State House of Assembly a political party shall where they intend to sponsor candidates- (i) hold special Congress in the Senatorial district, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirant in designated centres on specified dates. (ii) the aspirant with the highest number of votes at the end of voting shall be declared winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party. Section 87(8) of the Act further provides: “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.” Finally, Section 87(9) provides that:- In the cases of Hon. Babaginda Nguroje V. Hon. Elsudi and Dr. Ardo v. Admiral Nyako (Rtd) (Supra) I had cause to consider the provision of Section 87(9) thus: “Notwithstanding the provisions of the Act or rules of the political party, an aspirant who complains that any of the provisions of this 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, may apply to the Federal High Court or the High Court of a State, or FCT, for redress.”See also Sections 85, 86, and 30 – 33 of the Electoral Act, 2010 (as amended).” Per AGUBE, J.C.A. (Pp. 60-61, paras. A-F)

7. ELECTORAL MATTER – SELECTION AND NOMINATION OF A CANDIDATE OF A POLITICAL PARTY: Position of defunct Electoral Laws on the impotence of the Courts to choose, select or nominate candidates for political parties even in the face of breaches of the extant Electoral Act 2010

“Going by the above authority, section 87(9) of the Electoral Act excludes any impinging or impeding effect of any other provision of the Act or even the Guidelines for primary elections made pursuant to the Constitution of the PDP/2nd Appellant (in this case 3rd Respondent) (which by its Preamble admits at page I thereof that: “The Electoral Guidelines for Primary Elections, 2010 of the Peoples Democratic Party were, therefore drawn up, to conform strictly with the provisions of ……, the Electoral Act, 2010 and the Constitution of the Federal Republic of Nigeria”) from that section of the Electoral Act fulfilling itself in the regulation of party primaries. In other words, by the above authority, every other section of the Electoral Act, the PDP Constitution and Guidelines for the conduct of primary Elections; are subordinated to Section 87(9) of the Electoral Act which guarantees an aspirant in a Party Primary the right to seek redress in a Court of Law provided his complaint is that any of the provisions of the Act, Rules or Guidelines of the Political Party has not been complied with in the selection or nomination of a candidate of such a political party for an election. It is pertinent to note that in Lado v. CPC (2012) ALL FWLR at page 263 paragraphs G-H to 624 paragraph A; Onnoghen, JSC, again commenting on the provisions of the Electoral Act above highlighted, reiterated the position of defunct Electoral Laws on the impotence of the Courts to choose, select or nominate candidates for political parties even in the face of breaches of the extant Electoral Act 2010, the party’s Constitution and Guidelines for the conduct of primaries and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the course of such exercise as an aspirant cannot invoke the jurisdiction of either the Federal High Court or High Court of the State as provided for under section 87(9) unless such an aggrieved aspirant brings himself within the ambit of section 87(4)(b)(c) of the Electoral Act 2010 (as amended) . Hear His Lordship: “The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended) supra. It is only if he can come within the provisions of those subsections that his complaint can be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides with the political party to exercise. The enactment is not designed to encourage factions emerging from the political parties with each electing its candidates but claiming same to be candidates of the political party concerned.” Per AGUBE, J.C.A. (Pp. 62-64, paras. C-A)

 

MAIN JUDGMENT

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment):

NKOn the 28th of March, 2011, the Appellant as plaintiff in the Federal High Court, Enugu Division, took out a writ of summons and in the particulars of the Writ and the Statement of Claim filed along with same and his Witness Statements On Oath; sought for Reliefs in the following terms:

“1.     A DECLARATION that the willful failure, refusal and neglect of the 3rd Defendant to conduct primary for the election of People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency is a violation of the Electoral Guidelines for Primary Elections 2010 and amended Electoral Act, 2010.

 

1. A DECLARATION that the 3rd Defendants purported submission of the name of the 1st Defendant as People’s Democratic Party candidate for Nsukka/Igbo-Eze South Federal Constituency is a violation of the Electoral Guidelines for Primary Election 2010 and amended Electoral Act 2010.

 

2. AN ORDER of the Honourable Court setting aside the Certificate of Return purportedly issued to the 1st Defendant by the 4th Defendant as the People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency for being unlawful and on the ground that the 3rd Defendant failed, refused and neglected to conduct the primary Election.

 

3. AN ORDER of perpetual injunction restraining the 4th Defendant from recognizing or registering the 1st Defendant as the People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency Election scheduled for April 2, 2011.

 

4. AN ORDER of perpetual injunction restraining the 1st and 2nd Defendants from parading, acting, campaigning, contesting or otherwise howsoever holding out themselves as the people’s Democratic Party candidates for the office of member representing Nsukka/Igbo-Eze South Federal Constituency Elections’ scheduled for April 2, 2011.

 

5. A DECLARATION that the 1st Plaintiff is entitled to be the People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency Election scheduled for April 2, 2011.

 

6. AN ORDER directing the 4th Defendant to issue Certificate of Return to the 1st Plaintiff as the People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency. See pages 28 – 29 of the Record.

 

Issues were joined by the 1st and 2nd Respondents who filed their respective statements of Defence on the 17th of May, 2011 and 5th of May, 2011 along with their statements on oath. The 3rd and 4th Respondents on their part did not file any pleadings although the 3rd Respondent had entered appearance earlier on the 16th of May, 2011. On the 4th July, 2011 and 3rd of May, 2011 respectively, the Appellant filed his Replies to the Statements of Defence of the 1st and 2nd Respondents then on the 31st day of May, 2011 and 7th of June, 2011, the Appellant filed Additional statements on oath to the Replies of the 2nd and 1st Respondents.

From the pleadings of the parties, the case of the Appellant in the lower court was that the 3rd Respondent failed, refused and neglected to conduct the Primary Election Scheduled for the 5th day of January, 2011 for the purpose of nominating her Candidate for the Nsukka/Igbo-Eze South Federal Constituency Election. In sum the grouse of the Appellant was that the 3rd Respondent having failed to conduct the Primary Election of which the Appellant was one of the aspirants, the 1st and 2nd Respondents produced false documents and results purporting to have won the primary Elections conducted by two different Enugu state chapters of the PDP on 12/1/2011 and 20/1/2011.

The 1st and 2nd Respondents were said to have used the false documents and results to deceive the 4th Respondents that they were each validly nominated. These criminal allegations are contained in Paragraphs 55 and 57 of the statement of claim at pages 26/36 and 27/37 of the Records and paragraphs 6 to 9 of the Reply to the 2nd Respondents statement of Defence at pages 410 – 414 of the Records as well as paragraphs 6 -13 of the Reply to the 1st Respondents Statement of Defence at pages 977 to 981 of the Records.

It was the further case of the Appellant as clearly pleaded in his Replies to the statements of Defence of the 1st and 2nd Respondents, that the 1st and 2nd Respondents did not comply with the procedure of nomination of candidates laid down by the 3rd Respondent in the P.D.P. Electoral Guidelines and conversely therefore, the Appellant is the only person who complied with the procedure for nomination to be entitled to the relief contained in paragraph 70(a) (6) and (7) of the Statement of Claim.

The 1st Respondent’s case as summarized in the Brief of Argument was that the Appellant was not entitled to the seven Reliefs sought in the lower Court in his Statement of Claim as he (1st Respondent) denied in Paragraph 11 of his Statement of Defence, all the allegations contained in paragraphs 40-50 of Appellant’s Statement of Claim and Statement on Oath as false. He the 1st Respondent contended in paragraph 12 of his Statement of Defence that the averments contained in paragraphs 51 – 62 and 65 – 68 of the Appellants’ Statement of Claim and on Oath were also false. He further contended that (he) 1st Respondent obtained the necessary forms of the 3rd Respondent to contest for the office of member representing the Nsukka/Igbo-Eze South Federal Constituency which he is the incumbent and was cleared.

According to him, the Primary Election was fixed for 11/1/2011 but that the election did not hold as those who were sent from Abuja did not show up which generated tension, violence and petitions. The failure of the Panel to conduct the election in accordance with the Party Guidelines compelled him to complain through petitions to various organs of the party full details of what transpired within the party culminating in the rerun of the party primary of 20/1/2011 that produced him as the 3rd Respondent’s candidate are contained in Paragraphs 8 – 15 of his (1st Respondent’s) Statement of Defence and his Statement On Oath at pages 594 to 599 of the Records.

It was his further claim that in the process of selecting/nominating him as the candidate representing Nsukka/Igbo-Eze South Federal Constituency there was due observance of the Laws, Rules and Guidelines, contrary to the Claims of the Appellant. Finally, it was his case that he was validly selected/nominated in a Primary Election conducted on 20/1/11 by the 3rd Respondent and monitored by the 4th Respondent upon which he contested the April, 2011 General Elections and was duly elected to represent Nsukka/Igbo-Eze South in the Federal House of Representatives and was issued the Certificate of Return by the 4th Respondent and was also duly sworn-in as the current member representing Nsukka/Igbo-Eze South Federal Constituency.

On the other hand, the case of the 2nd Respondent was that there was 3rd Respondent’s (PDP) Primaries on 12th January, 2011 in which he participated and won. He claimed to have complied with all the procedures and Guidelines of the 3rd Respondent’s selection/nomination as a candidate for the office of Member representing the Nsukka/Igbo-Eze South Constituency having contested the said Primary Election conducted by a different Enugu state chapter of the 3rd Respondent on the 12th of January, 2011, headed that by Austin Okechukwu Ogbonna. He relied on the result of the  said Primary to file Suit No. FHC/ABJ/CS/81/2011 and FHC/ABJ/CS/97/2011 at the Federal High Court Abuja and further relied on the Certificate of Return/Result of the purported primary election held on 12/1/2011 but was alleged by the Appellant not to have disputed the criminal allegations of production and falsification of documents.

Issues having been joined and the learned trial Judge then fixed the case for hearing on 9th of June, 2011, on that day, the 3rd Respondent drew the attention of the Court below that it had filed a Motion on Notice on the 17th of May, 2011 praying the Court to dismiss the Appellant’s Claim for want of jurisdiction, in opposition to which the Appellant filed his Counter-Affidavit and Written Address.

The 1st Respondent also filed a similar Application ditto the 2nd Respondent who filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to entertain the Suit and the Appellant filed respective Counter-Affidavits and Written Addresses in opposition to the respective Application and Notice of Preliminary Objection of the 1st and 2nd Respondents. On the 13th day of July, 2011 the Motions were duly moved and the Written Addresses adopted except the Notice of Preliminary Objection which was neither argued nor struck out by the Lower Court.

In his reserved Ruling delivered on the 20th day of July, 2011, the learned trial Judge, D. V. Agishi, J. after considering the leading authorities on the interpretation of section 87(4)(b)(ii) and (9) of the Electoral Act 2010 (As Amended) held in conclusion that:

“Looking at the two dimensions above discussed, I have the feeling that in which ever perspective, I may choose to view this matter, it is doubtful to establish that this Court has the jurisdiction to hear and determine this suit. Also to be noted is, the applicable case to the fact of this case is not the case of Emenike but that of Lado. My humble opinion is that this Court lacks that jurisdiction. Case struck out.”

 

Dissatisfied with the decision of the learned trial Judge, the Appellant through his counsel C. A. Menkiti, Esq. gave Notice of Appeal, with three Grounds dated 23rd July, 2012 and filed on the 25th of September, 2012. For the avoidance of doubt the Grounds are hereunder reproduced with their particulars as follows:

 

“GROUND ONE The learned trial court misdirected itself when it held that the Appellant sought to set aside the election and return of 1st defendant at the April General Election

“GROUND TWO The learned trial Court misdirected itself in law when it held that the issues raised in the claim of the plaintiff amount to mere academic exercise.

“GROUND THREE The learned trial Judge erred in law in failing to hold that the court has jurisdiction to hear and entertain the Suit.”

 

(See pages 1120 to 1123 of the Record of Appeal). Upon transmission of the Record of Appeal hereto, parties exchanged their respective Briefs of Argument through their Learned Counsel.

In the Brief settled by Charles A. Menkiti Esq. on behalf of the Appellant, the following Issues were distilled for resolution from the three Grounds of Appeal:-

 

“1.     Whether the trial Court has jurisdiction to hear and determine who is the Peoples Democratic Party Candidate for Nsukka/Igbo-Eze South Federal Constituency in the April, 2011 General Elections having regards to the provisions of the Electoral Act, 2010 (as amended).
GROUNDS 1 and 2.

“2.     Whether the decision of the Supreme Court in SENATOR Y. G. LADO & ORS. V. C.P.C. (2011) 12 S.C (Pt. 719) Page 113 is applicable to this case.”(GROUND 3).

 

On his part, Chief M. A. O. Iyamanbhor, Esq; who settled the Brief of the 1st Respondent, also formulated two issues of almost similar wordings couched in the following terms:-

 

“1.     Whether the trial Court has jurisdiction to hear and determine the suit of the Appellant as constituted in his Statement of Claim.

“2.     Whether the Supreme Court case of Yakubu Garba Lado & Ors Vs. C.P.C. & Ors (2011) 12 S.C. (Pt.111) Page 113 is applicable to this case”.

 

ARGUMENT OF ISSUES. In the determination of this Appeal, I have noticed that the issues formulated by the learned Counsel for the respective parties are basically the same and I accordingly shall adopt the Issues formulated by the Appellant.

ARGUMENT OF ISSUE NUMBER ONE (1) BY LEARNED COUNSEL FOR THE APPELIANT.

On this Issue which learned Counsel noted arises from Grounds ONE and TWO of the Grounds of Appeal, he submitted on the authorities of Anigboro V. Sea Trucks Nigeria Ltd. (1995) 6 NWLR (Pt. 399) 423; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 (1976) 9 – 10 S.C. (Reprint) 18; that the law is settled that it is the claims of the Plaintiff that determines the jurisdiction of the trial Court. Furthermore, he continued, it is also settled that where an action contains different claims, the Court has to examine each of the claims for purposes of determining whether the Court has jurisdiction to entertain such different claims. For this submission he placed reliance on Elf Oil Nig. Ltd. Vs. Oyo State Board of Internal Revenue (2008) FWLR (Pt. 138) 1359 Page 1367 Paras. H per Tabai, J.C.A. (as he then was) and Nwadike V. Admin-General of Anambra State (1996) 7 NWLR (Pt. 462) 315.

Citing the dictum of Nwodo, J.C.A. of blessed memory, In Posts Authority & Cargo Handling Services Co. Ltd. & 3 Ors. Vs. MIGFO Nig. Ltd. & Anor (2009) 11 NWLR (Pt 1153) Page 611 with reference to the Reliefs claimed in Paragraphs 70(1), (2) and (5) of the Statement of Claim, he submitted that the above Reliefs sought by the Appellant are based on the provisions of the Electoral Act, 2010 (as Amended) whereas Reliefs 3, 4, 5 and 7 are injunctive and consequential upon the success of the declaratory reliefs. For the above submission he relied on dictum of Fabiyi, J.S.C. in Chief Ikechi Emenike Vs. Peoples Democratic Party (2012) 5 S.C. (Pt. 1) 113 at 146 – 147 lines 35 – 45; In calling on us to examine the Electoral Ad, 2010 (as Amended) particularly Section 87 (1)(2), (4)(c) (1), (6), (7) and (9) thereof the Constitution of the P.D.P. at Pages 47 – 157 thereof and the Electoral Guidelines of the P.D.P. at Pages 174 – 207 in order to resolve the Issue at stake.

The learned Counsel for the Appellant argued that the 3rd Respondent in furtherance of Section 87 (7) of the Electoral, 2010 (as Amended), outlined in Article 12.72, 12.73 and Article 17.2 of its Constitution, procedure for the conduct of primaries for selecting Candidates for the House of Representatives (the procedure which he reproduced), adding that pursuant to the above Articles, the National Executive Committee of 3rd Respondent issued the Electoral Guidelines for the procedure for nomination and conduct of the Primary Elections of the Office of the House of Representatives in Clauses 26(1) (a) (b) (c), 27(vi), 28(b) (i) (ii) and 31(3) which provisions he also reproduced; to submit that the combined reading of the above quoted provisions reveals that it is the National Executive Committee of the PDP that is responsible for the conduct of Party’s National Assembly Primaries.

In the instant case, the learned Counsel for the Appellant further referred us to the Appellant’s averments in Paragraphs 47(a) 49, 50 and 66 of his Statement of Claim that the 3rd Respondent (Peoples Democratic Party) failed to conduct any primaries whatsoever for nomination of a Candidate for the Nsukka/Igbo-Eze south Federal constituency. Pages 24, 25 and 66 of the Records refer. Further reference was also made to the averments in the Appellant’s Reply to the 1st Respondent’s Statement of Defence that the Enugu chapter of the P.D.P. led by Vita Abba compiled the purported result of the “rerun” Primary Election of 20/1/2011 being paraded by the 1st Respondent. Pages 982 – 1012 refers. He quoted the reference to the cover letter in respect of the result of the Primary Election compiled by Vita Abba of the Enugu chapter of P.D.P. at (page 982) where the said Mr. Abba referred to the exercise as a rerun election for aspirants to membership of the State Assembly and National Assembly in Enugu North Senatorial District. To clearly show that the purported result of the purported rerun emanated from a primary conducted by the Enugu State Chapter of the P.D.P., the 1st Respondent produced a letter written by the Enugu state Branch of INEC and signed by Dr. Ekwo A. C. and Samuel Bassey which contents he quoted; (page 499 of the Records refers), after receiving the letter at Page 982 of the Records written by Vita Abba.

On the other hand, the learned counsel also observed, the 2nd Respondent in suit No. FHC/ABJ/CS/97/2011 Engr. Anayo B. Onwuegbu & 38 Ors v. Peoples Democratic Party & Anor. claimed that he won the primary election conducted by Anestus Okechukwu Ogbonna led Enugu Chapter of P.D.P. as is clearly deposed to in paragraphs 16 of the Statements on Oath of the said Anestus Okechukwu Ogbonna (chairman) Enugu state chapter of the P.D.P. and Barrister Oyibo Chukwu, State Secretary Enugu State Chapter of the P.D.P. and that the 2nd Respondent is the 13th Plaintiff in the Writ of Summary in suit No. FHC/ABJ/CS/97/2011. (Pages 222 – 240 and 441 – 458 of the Records refer).

From the foregoing, it was contended that the obvious implication as that another Enugu State Chapter of P.D.P. conducted the purported Primary Election on the 12th of January, 2011 relied upon by the 2nd Respondent but that in law the National Assembly Primary Election conducted by the state chapter of the P.D.P. is a nullity. To buttress the above contention he placed reliance on the dicta of Rhodes-vivour, J.S.C. in Prince John Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors. (2012) 7 S.C. (Pt.1) 1 at 41 lines 10 – 30 and Fabiyi, J.S.C. at page 66 tine 5 thereof to further assert that having clearly shown the violation of the Electoral Act, 2010 (as amended); section 87(9) of the Electoral Act, empowers the Appellant who was a candidate/aspirant at the primaries, to come to court and complain about the purported primaries.

To demonstrate to us that he was a Candidate or Aspirant at the said P.D.P. Primaries he referred us to Pages 52 – 172 and 208 of the Records which contain the Receipts of purchase of Expression of Interest Form, Nomination Form and Clearance Certificate), and Prince John Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors. (Supra) at page 42 lines 25 – 35 per Rhodes – vivour, J.S.C., on the right of an Aspirant as donated to him by Section 87(9) of the Electoral Act, 2010 to challenge the violation of the Electoral Act, the Party Constitution and Guidelines for the conduct of its primaries for nomination of Candidates to carry their flag at General Elections.

It was further submitted by the learned Counsel for the Appellant that the Appellant who was an Aspirant and candidate to contest the post of member Nsukka/Igbo-Eze South Federal Constituency, has complained of the process of the nomination of the Candidate for that position as adopted by the 3rd Respondent. For this submission he further called in aid the dictum of Mohammed J.S.C. in the Prince Okechukwu Emeka V. Lady Margery Okadigbo case, where the learned Law Lord elucidated the point on the extent of the jurisdiction of Courts under Section 87(9) of the Electoral Act, 2010 (as Amended).

The learned Counsel for the Appellant on another score argued that the 1st and 2nd Respondents further violated the Electoral Act, the P.D.P. Constitution and the Electoral Guidelines, as the mode and venue of the purported primary elections from which they purportedly emerged as the 3rd Respondent’s Candidate for the General Election into the House of Representatives to the constituency in question as the 1st Respondent purported to have emerged from a “Rerun” primary conducted on 20/1/11 which is not provided for by the Constitution of the P.D.P. and Electoral Guideline issued by the National Executive Committee. More so, the “Re Run” Primary of 20/1/2011 conducted by Vita Abba led Enugu state chapter of the P.D.P. Executive Committee, was held in a secret hide-out in Enugu Metropolis as Page 260 of the Record contain the paid advert by the 2nd Respondent and Paragraphs 55(a) (b), (c) (d) of the Statement of Claim at Page 26 of the Records refer.

It was contended further that the above Venue of the “Re-Run” was not controverted or disputed by the 1st Respondent in any material particular and that in a similar vein the result of the purported Primary Election of 12/1/2011 relied upon by the 2nd Respondent was shown to have been compiled at “the Country home of the National Chairman, Dr. Okwesilieze Nwodo at Ukehe, Igbo-Etiti Local Government” (Pages 612 – 614 of the Records refer), which allegation as made by the 1st Respondent was also not denied by the 2nd Respondent. Citing again Prince Emeka Vs. Lady Okadigbo & 4 Ors. (Supra) at 68 lines 1 – 20 per Adekeye, J.S.C.; the learned Counsel for the Appellant insisted that the purported Rerun of 20/1/2011 and Primary purportedly conducted by the State Chapters on the 12/1/2011 apart from having been conducted by organs other that the National Executive Committee were done at venues not stipulated in the P.D.P. Constitution and the Electoral Guidelines or the Electoral Act, 2010 (As Amended).

On the Issues joined with the 1st and 2nd Respondents in respect of non-compliance with the procedure for nomination of Candidate as provided for in Clause 26(1) (a) (b) (c) of the P.D.P. Electoral Guidelines, it was submitted by the learned Counsel for the Appellant that the effect of failure to comply if successfully challenged in the appropriate Court as in this case, is that the 1st and 2nd Respondents were not even Aspirants of the P.D.P. ab initio having not complied with the nomination procedures. The cases of Ibrahim Musa Argungu & Anor v. Umar Abubakar T. Argungu & 4 Ors. (2010) ALL FWLR (Pt.570) 681 at 697 line E. per Okoro, JCA (as he then was) and still Prince Emeka vs. Lady Okadigbo & 4 Ors. (Supra) at 69 lines 5 – 10 per Adekeye, J.S.C. were further relied upon in so submitting that the legal effect of the Court in so finding can be found in section 87 (6) of the Electoral Act (As Amended).

On the nature of the case put forward before the trial Court, the learned Counsel took the view that since the issues raised by the Appellant relate to nomination and selection of the 3rd Respondent’s Candidate for the Membership of the Nsukka/Igbo-Eze South Federal Constituency in the April, 2011 Elections for the House of Representatives, the matter fell/falls within the purview of pre-election matters as was decided in the cases of Senator Ifeanyi Ararume v. INEC & 2 Ors. (2007) 9 NWLR (pt.1038) 127 at 103 per Adekeye, J.C.A. (as he then was), Gabriel Yinusa Olaku & 2 Ors. Mr. Michael Adejoh Itodo (2010) 12 S.C. (Pt. 1) 163 at 191 per Onwoghen J.S.C.

Alluding to the Ruing of the learned trial Judge at pages 1116 – 1117 of the Records wherein he held that return the Appellant sought to be cancelled was that of April General Elections and that that Election had since been conducted and the Appellant’s suit would serve no useful purpose; the learned Counsel for the Appellant pointed out that there is nowhere in the Appellant’s pleadings and complaints that relates to the result of April General Elections and that a court is bound by the case put forwardly by the parties.

Mathew Akpelu V. Paulinus Chukwu & 4 Ors. (2005) ALL FWLR (Pt 269) 1852 at 1877 Paras. C – E; per Dongban-Mensen, J.C.A.; Hon. Gozie Agbakoba v. INEC & 2 Ors. (2008) 18 NWLR (Pt. 1119) 489 at 545 Paras. D – E; Per Chukwumah Eneh, J.S.C., Olofu & 2 Ors. v. Itodo (Supra) at 205, per Adekeye, J.S.C. and Engr Charles Ugwu & Anor v. Senator Ifeanyi Ararume & Ors. (2007) 12 NWLR (Pt. 1048) 305 at 449 paras. C – E; per Tobi, J.S.C., it was finally submitted on this first Issue, that pre-election matters do not translate to post-election matters merely because the election had been held.

Furthermore, the issue of selection or nomination of a Candidate by a Political Party as in the instant case is a very serious matter and not a mere academic exercise learned Counsel maintained, to urge to resolve Issue Number 1 (ONE) in the affirmative and hold that the Lower Court has the jurisdiction to hear and determine who is the Peoples Democratic Party Candidate for the Nsukka/Igbo-Eze South Federal Constituency for the April, 2011 General Elections, having regards to the provisions of the Electoral Act, 2010 (As Amended)

ARGUMENT OF LEARNED COUNSEL FOR THE 1ST RESPONDENT ON ISSUE NUMBER ONE (1).

Reacting to the arguments of learned Counsel to the Appellant, the learned Counsel to the 1st Respondent conceded that it is settled law that it is the claim of the Plaintiff that determines the jurisdiction of the Court as stated in the writ of Summons and Statement of Claim or any originating process. Ports And Cargo Service Co. Ltd. & Ors. v. MIGFO Nig. Ltd. & Anor (2012) Vol. 212 LRCN 1 at 242; Hon. Prof. Chudi Uwazurike & Anor v. Chief Austin Nwachukwu & Anor (2012) vol. 214 LRCN 71 at 862 and Gbagbarigha vs. Toruemi & Anor (2013) Vol. 215 LRCN 152 at 177 K; per Ogunbuyi) J.S.C; were all relied upon in submitting that in this case, looking at the claims of the Appellant; it is clear that the desire of the Appellant is for him to be declared by the Court as the Candidate of the P.D.P. for the April, 2011 Election and for INEC to be ordered to withdraw the certificate of Return issued by INEC to 1st Respondent and for same to be given to the Appellant.

On the contention by Appellant that he sought for three Declaratory Reliefs on the ground that in nominating the 1st Respondent, there were violations of the Electoral Guidelines of the PDP Primary Election Rules, the learned Counsel has contended that the 1st Respondent has produced evidence showing compliance at pages 602 – 611 which contain all the necessary Forms, Expression of Interest, Nomination Form, Tax Clearance and the PDP Clearance after screening, making the 1st Respondent eligible.

The learned counsel for the 1st Respondent also drew our attention to Paragraph 46 of the statement on oath of the Appellant at pages 24 and 38 of Records where the Appellant confirmed that the 1st Respondent was one of the Aspirants cleared as a Candidate to contest the PDP Primary for nomination. Our further attention was also drawn to the production of evidence by the 1st Respondent that the Primary of 20/1/2011 was conducted by the National Executive committee authorized by the National working committee at pages 602 – 625 while the list of Delegates is at Pages 628 – 695 of the Records, to urge us to discountenance the frivolous arguments of the Appellants that there was non-compliance with the Law, Rules and Guidelines in the selection/nomination of the 1st Respondent.

He took the view that the issue in this Appeal is whether the Federal High Court has the jurisdiction to hear and determine the claims of the Appellant as contained in the Statement of Claim and not how credible are the evidence to prove the Claims. It was conceded that there is no doubt that the Federal High Court had the jurisdiction to entertain a complaint arising from the conduct of Primary Election, however, in his further view the crucial question which the learned trial Court ruled on is that the Appellant’s case as constituted in his Statement of Claim is not justiciable, the facts of the case having not disclosed any reasonable cause of action as the Claims are speculative and devoid of live issues thereby depriving the Lower Court of jurisdiction to entertain same.

Alluding to the first Relief in the Appellant’s Statement of Claim which is that the 3rd Respondent Scheduled its Primary Election for 5/11/2011 and that once the 3rd Respondent failed to conduct same on that very day, there has been breach of the Electoral Guidelines for Primary Elections 2010 and the Amended Electoral Act, 2010; he argued that if the PDP inadvertently failed to hold a Primary Election on a fixed date but the National Executive Committee of the Party ordered the Primary to be on another date that cannot amount to violation of the Electoral Act and the Party Guidelines on the Election.

According to him, the 1st Respondent has been able to show from his Statement of Defence and Statement On Oath with Exhibits at Pages 589 – 695 of the Records that he participated in the re-run election of 20/1/11 and won having scored the highest number of votes cast by which the 3rd Respondent who conducted the Primary monitored by INEC, forwarded the 1st Respondent’s name to the 4th Respondent as the 3rd Respondent’s Candidate for the April 2011 General Elections. We were then urged to discountenance the Appellant’s Relief Number One (1) in view of the foregoing.

As for the second Claim/Relief which was for the Court below to hold that the submission of the 1st Respondent name to the 4th Respondent by the 3rd Respondent after the 20/1/2011 Primary is a violation of the Electoral Guidelines for primary 2010 and the Amended Electoral Act, 2010, that claim, he maintained is misconceived as the Primary Election which produced the 1st Respondent as the 3rd Respondent’s Flag bearer was conducted by the Executive Committee of the 3rd Respondent. (Pages 620 – 625 of the Records refer). In respect of the third Claim/Relief whereof the Appellant prayed for the setting aside of the Certificate of Return issued to the 1st Respondent by the 4th Respondent (INEC) and same issued to him (the Appellant), the learned Counsel for the 1st Respondent argued that Section 75(1) and (2) of the Electoral Act, 2010 (As Amended) provides for same and it can only be issued by INEC to a Winner of the General Election.

In the instant case, the learned Counsel continued, the Appellant never participated in any election and the Court can therefore not avail him of that Relief. For this submission, the case of Amaechi v. INEC (2008) 158 LRCN 1 at 99 FK (S.C.) and Ehinlawo v. Oke (2008) 16 NWLR (Pt. 1113) 357, were cited and relied upon to further contend that the Appellant wants to occupy the position of Member of House of Representatives for the Nsukka/Igbo-Eze South Federal Constituency by Order of Court and did not ask for the Court to order fresh primary but for the Court to declare him as the person entitled to be the candidate of the PDP to represent the Nsukka/Igbo-Eze south Federal constituency in the House of Representatives.

Turning to Relief Number 7 whereby he prayed for the court to order INEC to issue him with Certificate of Return, the learned Counsel contended that this is against the provision of Section 141 of the Electoral Act, 2010 (As Amended). The provisions of Section 75(1) and (2) of the Electoral Act, 2010 (As Amended) were then reproduced to further reiterate that by the Appellant’s insistence even here in his Paragraph 3 Page 4 of the Appellant’s Brief of Argument that the Court should set aside the Certificate of Return issued to the 1st Respondent, declare him (Appellant) the candidate and for INEC to be ordered to issue him Certificate of Return, his arguments in this Appeal are of no moment.
This is because from his own showing in paragraph 58 of his Statement of claim that the Appellant never participated in any Primary Election of the PDP or the General Elections and from the above deposition of the Appellant, his Suit was instituted in violation of Section 141 of the Electoral Act (As Amended) which provision he reproduced along with the decision in Amaechi v. INEC (Supra) at 99F.

The learned Counsel noted that the Appellant is wallowing in the euphoria of Amaechi V. INEC which decision declared Amaechi the Governor of Rivers State without his participating in the General Elections (a decision which earlier position has been amended, adding that even in Amaechi’s case, he participated in the primary and emerged winner and was substituted even when his name was earlier submitted/forwarded to INEC as the party’s Candidate for the General Elections.

In the instant case however, learned Counsel noted, the Appellant showed no seriousness to contest any election when the Primary Election did not hold on the 5th of January, 2011 as scheduled, did nothing and never visited the Party Headquarters to complain nor write any petition to ensure that the primary was conducted but rather went on ambush with Court processes with the hope of being declared winner by the court and INEC ordered to issue him with Certificate of Return.

On the allegation that the 3rd Respondent failed, refused and/or neglected to conduct the primary on the scheduled 5th January, 2011 date, the learned Counsel for the 1st Respondent referred us to Paragraph 48 of the Appellant’s Statement on oath where he deposed to the fact that the primary could not be conducted on that date because of the crisis within the 3rd Respond/Party. Therefore, in learned counsel’s view, the 3rd Respondent did not violate any Electoral Guidelines, rather the Appellant from the 5th January, 2011 did nothing but waited until a few days to the General Elections only to rush to Court on the 28th March, 2011 to file his hypothetical and speculative Suit and for the Relief Number 7 as sought in page 29 of the Records.

On the need for pre-election matters to be filed timorously he placed reliance on Farouk Salami vs. C.P.C. & 2 Ors (2013) ALL FWLR (Pt 677) 613; to submit that in the instant case the Appellant attempted to serve the 1st Respondent on the 1st of April, 2011 the eve of the General Election slated for 2/4/11 but could only get the said Respondent served after the election which is to say that the case actually commenced after the General Election which rendered prayers 4 and 5 of the Statement of Claim unenforceable as the act sought to be restrained had been performed. Farouk Salami Vs. C.P.C. & 2 Ors (Supra) per Odili, J.S.C. (Pages 629 – 630 Para. H – D on the time frame for bringing pre-election cases which deal with disqualification nomination, substitution and sponsorship of candidates for an election was again relied upon in the event the Appellant would contend that he is not inhibited by time and to further assert that the Appellant’s situation is made worst when he was not disqualified nor substituted but decided to stay away from the processes of the Primary waiting and hoping that the Court would return the labour of others to his favour.

Having sought umbrate on the authorities of Chief Umeh Albert Akpan v. Senator Effiong Bob & 4 Ors (2011) Vol. 193 LRCN 78 at 165 – 166. Ehinrawo v. Oke & 2 Ors. (2008) (Supra), the learned Counsel asserted that the Supreme Court has held that the issue of nomination, and sponsorship of a candidate by a political party are the domestic affairs of the political party of which the Courts lack jurisdiction but that notwithstanding these hosts of authorities/decisions, the Appellant still placed so much reliance on section 87(9) of the Electoral Act, 2010 (As Amended).

In this respect and response to the arguments of the learned counsel for the Appellant, the learned counsel for the Respondent referred us to our decision in Francis Uchenna Ugwu & Ors. v. Peoples Democratic Party & 6 ors. in Appeal No. CA/E/259/2012 particularly at pages 42 and 43 of the Judgment where the court concurred with the decision of the Supreme Court on Section 87(9) of the Electoral Act (As Amended).

The learned counsel then submitted that the Respondents particularly 1st and 3rd Respondents have tendered evidence to show that the provisions of the Electoral Act, 2010 (As Amended) and the Party Guidelines were adhered to in the process of the primary in question apart from INEC monitoring the primary election that produced the 1st Respondent which incidentally the Appellant was not part of as he never participated in the re-run primaries or any of the primaries and could not have known whether the Guidelines were breached. Still on the provision of Section 141 of the Electoral Act (As Amended) 2010, he maintained that it forbids the Appellant from being granted any relief having not participated in any of the primaries and this issue had succinctly been dealt with by this Honourable Court in its decision earlier cited at Page 43 of Ugwu & Ors. v. PDP & Ors. (Supra) while relying on the decisions of the apex Court; to finally hold that since the Appellant did not take part in primaries of 6-12-2010, “he had no competent cause of action activate the jurisdiction of the trial Court”.

This was the position in the instant case that the Appellant did not participate in any primary of the 3rd Respondent, the learned Counsel posited, to finally urge us to adopt our earlier position in the above decided case which are on all fours with the instant Appeal and resolve this Issue in favour of the Respondents that the case of the Appellant as constituted is not justiciable and therefore the Court below lacked the jurisdiction to entertain the Suit.

RESOLUTION OF ISSUE NUMBER ONE
Now, in the resolution of this first issue on whether the Federal High Court, Enugu Division sitting at Enugu, had the jurisdiction to hear and determine who the candidate of the People’s Democratic Party for the Nsukka/Igbo-Eze South April 2011 Federal Constituency General Elections to the House of Representatives, it would appear that parties are ad idem on the authorities of Seatrucks Nig. Ltd. v. Anigboro (1995) 6 NWLR (Pt. 399) 43; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 (1976) 9 – 10 S.C. (Reprint) 18; Elf-Oil Nigeria Ltd. v. Oyo State B.I.R. (2008) F.W.L.R. (Pt. 138) 1359 at 1367 para. H per Tabai, J.C.A. (as he then was); Nwadike v. Administrator-General of Anambra State (1996) 7 NWLR (Pt. 462) 315 and Ports & Cargo Handling Services Co. Ltd. & 3 Ors v. MIGFO (Nig.) Ltd. & Anor. (2009) 11 NWLR (Pt.1153) 677; per Nwodo, J.C.A. (of blessed memory) all cited by the learned Counsel for the Appellant as well as Hon. Prof. C. Uwazuruike & Anor v. Chief A Nwachukwu & Anor (2012) Vol. 214 LRCN 71 at 86 and Gbagharigha V. Toruemi & Anor (2013) Vol. 215 LRCN 152 at 177 FK; per Ogunbiyi, J.S.C., cited by the learned counsel for 1st Respondent that it is now trite that jurisdiction is a fundamental and threshold issue, the font et origo of adjudication and the lifeblood that animates or ignites the court’s exercise of its adjudicatory powers in any suit before it.

The above cited authorities have also restated the age old position of the law as established by our apex court and indeed this court, that it is the claim of the Plaintiff as expressed either in his writ of Summons or Statement of Claim or any other originating process, that determines whether a court is seised with the requisite jurisdictional competence to entertain and determine any suit before it. At this juncture, it will not be out of place to resort to the locus classicus of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; where our erstwhile Federal Supreme Court held that a court is said to be competent when:

1. It is properly constituted as to its members and no member is for any reason or the other disqualified to sit;
2. The subject matter of the dispute is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
3. The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction.

All these requirements must co-exist conjunctively in order for the jurisdiction of the court to be invoked and exercised by the Claimant or Plaintiff. Thus, where any or all of these basic elements or requirements are lacking and a court be it trial or Appellate, goes ahead to hear and determine a case, the proceeding shall be a nullity no matter how brilliantly and well conducted as well as sound the judgment may be. See Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503 (S.C.); Skensconsult v. Ukey (1981) 7 S.C. 6; Magaji v. Matari (2000) 5 S. C. 46; Alao v. African Continental Bank Ltd. (2000) 6 S. C. (pt 1) 27 and Lufthansa Airlines v. Odiese (2006) (Pt. 978) 38; Adetona v. I. G. Enterprises Ltd. (2011) 7 NWLR (pt.1036) 332; Onwuka v. R.T.C.M.Z.C. (2011) 6 NWLR (Pt. 1243) 341 at 359 para D.

Going by all the authorities cited by the respective learned counsel for the parties, it is therefore clear that in order to determine whether the trial court had the necessary jurisdictional competence to hear and determine the Appellant’s Suit, it is to his pleadings and Reliefs sought in the Statement of Claim as well as his Replies to the Statement of Defence of the 1st and 2nd Respondents that we shall turn to. In this wise, I had already reproduced the Reliefs sought for in paragraphs 70(1) to (7) of the Statement of Claim at pages 28138 – 29139 of the record of Proceedings/Appeal. On a careful, perusal of the reliefs sought there is no doubt as rightly argued by the learned counsel for the Appellant that Reliefs 1, 2 and 6 are declaratory in nature whereas Reliefs 3, 4, 5 and 7 are consequential or contingent upon the success of the Declaratory Reliefs sought.

In respect of Relief 1 (ONE) which is for a Declaration that the willful failure, refusal and neglect of the 3rd Defendant to conduct primary for the election of the People’s Democratic Party candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency is a violation of the Electoral Guidelines for Primary Election 2010 and Amended Electoral Act, 2010 and that the purported submission by the 3rd Respondent of the name of the 1st Defendant/Respondent as the candidate for the said Federal Constituency Election is a violation of the Electoral Guidelines for Primary Elections 2010 and Amended Electoral Ad, 2010; are complaints bordering on violations or breach of the provisions of the Electoral as well as the P.D.P. Guidelines for Primary Elections made pursuant to the P.D.P Constitution and the Electoral Act and ordinarily ought to be cognizable as complaints that should vest the Federal High Court with the jurisdiction to entertain same.

In this respect and upon a calm consideration of the submissions of the learned counsel on both sides, the provisions of Section 87 sub-sections (1), (2); (3); (4); (6); (7) and (9) of the Electoral Act, (2010) (as Amended), and their interpretations which have been the subject of recent pronouncements by the Apex court in a host of cases pertaining to primary elections and which for purposes of this Appeal I shall make bold to reproduce hereunder inter alia, are very relevant. That section provides in the sub-sections above enumerated as follows:-

“87(1)-A Political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions.

(2)     The procedure for nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.

(3)     A political party that adopts the direct primaries procedure shall ensure that all aspirant are given equal opportunity of being voted for by members of the party.

(4)     A Political Party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below-

(c)     in the case of nominations to the position of Senatorial candidate, House of Representatives and state House of Assembly a political party shall, where they intend to sponsor candidates –

(i)      hold Special Congresses in the Senatorial Districts Federal Constituency and State Assembly Constituency respectively with delegates voting for each of the aspirants in designated centres or centres on specified dates.

(ii)     the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party, for the particular State.

(6)     Where there is only one aspirant in a political party for any of the elective positions mentioned in subsection 4 (a), (b), (c), the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Independent National Electoral Commission as the Candidate of the party.

(7)     A Political Party that adopts the system of indirect primaries for the choice of its candidates shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention Congress or Meeting.

(9)     Notwithstanding the provisions of the Act or Rules of a political party, an aspirant who com o that any of the provisions of this 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, may apply to the Federal High court or to the High court of a state or FCT, for redress;”

 

The learned counsel for the Appellant was also on very solid ground when he argued that pursuant to section 87 (7) of the Electoral Act 2010 (as Amended), the 3rd Respondent formulated Articles 12.72, 12.73 and 17.2 of its Constitution, the procedure for the conduct of primaries for selection of candidates for the House of Representatives, which provisions I shall also make bold to reproduce hereunder.

“Functions of the National Executive Committee:-

Article 12.72. The National Executive Committee shall:-

(j)      Make party electoral regulations to govern the conduct of elections to all party offices at every level and regulate procedure for selecting the party candidates for elective offices.

Article 12.73. The decisions of the National Executive Committee shall be binding on all organs and members of the party.

Article 17.2. Notwithstanding the provisions of Article 12 of this Constitution, the National Executive Committee shall regulate the procedure for selecting office in the following manner:-

(d)     In the conduct of primaries for the party’s candidate for the post of member of the House of Representatives, the primaries shall be held at the Constituency Headquarters”

There is also no doubt that pursuant to the above mentioned Articles of the P.D.P. Constitution, the National Executive Committee of the Party (3rd Respondent herein), issued “Electoral Guidelines For Primary Elections 2010 for the People’s Democratic Party (P.D.P.)”, wherein clauses 26 (1)(a)(b)(c), 27(vi), 28(b)(i)(ii) and 31(3) provide as follows:-

“Clause 26(1) The procedure for nomination of aspirant for the party’s primary election into the National Assembly shall be as follows:-

(a)     a copy of the Membership card of the aspirant shall be attached to the duly completed Nomination Form code PD003/NA

(b)     an aspirant shall obtain the Expression of Interest Form Code PD002/NA upon payment of the prescribed fee of Two Hundred Thousand Naira (N200,000)…… the nomination forms for the primary election to the National Assembly shall be obtained from the National secretariat of the party upon payment of nonrefundable fee of

(ii)     One Million (1,000,000) for a House of representative aspirant.

(c)     Duly completed nomination from shall be accompanied by a sworn declaration by the aspirant made before a Commissioner for Oaths, Notary Public…..

27(vi) There shall be for each State of the Federation FCT, a National and Assembly Electoral panel of five members (one chairman and four others) appointed by the National Executive Committee on the recommendation the of the National Working Committee of the Party.

28. The primary election for the Senate and House of Representative shall be held in the following order.

28B(i) In the conduct of primaries for the party’s Candidate for the House of Representatives, the primaries shall be held at the Federal Constituency Headquarters.

B(ii)   All the delegates to the National Assembly Special Congress shall assemble in the Constituency Headquarters.

31(3) Result recorded in ordinary paper or photocopies shall not be accepted”.

Again, ordinarily upon a calm perusal and consideration of paragraphs 47(a), 49, 50 and 66 of the Appellant’s Statement of Claim where he averred that the 3rd Respondent (People’s Democratic Party) failed to conduct any primaries whatsoever for the nomination of a Candidate to represent Nsukka/Igbo-Eze South Federal Constituency at the House of Representatives; the further averment in the Reply to the 1st Respondent’s Statement of Defence that the purported Re-run Election was conducted by the Vita Abba led Enugu State Chapter of the 3rd Respondent and the said Mr. Abba compiled the result which was confirmed by the letter signed by the officials of the Enugu Branch of INEC – Dr. A. C. Ekwo and Samuel Bassey; more so where the 1st to 3rd Respondents are accused to have committed forgery and fraud in the course of the purported conduct of the Party primaries of either 12th day of January, 2011 or the 20th day of January, 2011; the obvious implication by virtue of Clauses 27(vi), 288(i) and B(ii) of the P.D.P. Guidelines aforesaid, is that such allegations by the Appellant if proven, would render the primary elections held on either of those dates null and void.

In the same vein, if the said primary was conducted at a venue other than that stipulated by the Guidelines, except there is reasonable explanation by the National Executive Committee or the National Assembly Electoral Panel on the change of venue, such Election and the result generated there from ought to be null and void if the allegation is proven. On the authority of Prince Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors. (2012) 7 S.C. (Pt.1) 1 at 41 lines 10 – 30; the situation is even compounded where there are allegations that two parallel Primary Elections were conducted at two different venues on the 12th of January, 2011 and the re-run of 20/1/2011 by the State rather than National Assembly Electoral Panel appointed by the National Executive Committee on the Recommendation of the National Working Committee of the party.

The learned Law Lord Rhodes-Vivour, J.S.C., in the above cited case had on the scenario above highlighted by the Appellant succinctly remarked that:

“It is the National Executive Committee of the P.D.P. that is responsible for the conduct of the party’s National Assembly Primaries, The Court of Appeal was correct……. A primary conducted by the State Chapter of the P.D.P. is not a primary. It is an illegal contraption that carries with it no right. It is a complete nullity. On the other hand, the purported primaries conducted on 10th or 12th of January, 2011 were conducted by the State Chapter of the P.D.P. It is null and void for purposes of choosing the P.D.P.’s candidate for the Senatorial elections.”

 

Fabiyi, J.S.C. in the above case in his concurring judgment described such a primary conducted by the State Executive of the P.D.P. as in the case at hand, as alleged by the Appellant, “a sham” and a farce, while relying on Chief Ikechi Emenike v. People’s Democratic Party & 3 Ors. (2012) 3 S.C. (Pt.10) 113.

I have also been opportune to peruse the Record of Proceedings particularly pages 157, 158 – 160, 162 and 208 of the Records which contain the Receipts for purchase of Expression of Interest for the House of Representatives Nomination 2010, Nomination Form and Provisional Clearance Certificate issued in the name of Barrister George Ogara by the People’s Democratic Party (P.D.P.) which documents show that he was screened and cleared to contest the Primary Elections.

Ideally, all the authorities cited by the learned counsel for the Appellant would have been applicable to the facts and circumstances of this case such that the Federal High Court ought to be seised with the necessary vires to inquire into the conduct of the P.D.P primaries held either on the 12th of January, 2011 or 20th January, 2011 by either the State Chapter of the People’s Democratic party or the National Executive Committee so as to determine whether they conform with the provisions of section 87(4)(c)(i), (7) and the Guidelines made pursuant to the P.D.P. Constitution, by virtue of section 87(9) of the Electoral Act, 2010 (as Amended) which has conferred the Federal High Court with the requisite jurisdiction to inquire whether in the course of such primary there was a breach of the constitution and Guidelines of the P.D.P. or the Electoral Act.

This is because in the determination of the question whether the Federal High Court is/was seised with the jurisdiction to entertain the claim of the Appellant what mattered most at that threshold juncture was not whether the Suit would succeed or not but whether the Appellant had a right (Locus Standi) cognizable by the Electoral Act or a triable or justiciable issue(s) (cause of action) so as to vest the Court with the vires to entertain his Suit and determine same pursuant to Section 87(9) of the Act (as Amended).

It is on these premises that we shall turn our attention to the very able submissions of the learned Counsel for the 1st Respondent. In the first place, the learned Counsel was right in submitting that by the Appellant’s Reliefs 3, 6 and in particular Relief Number 7 of his Statement of Claim he, (the Appellant) desires the Court to have him declared as the candidate of the P.D.P. for the April, 2011 Elections and then order INEC to withdraw the Certificate of Return issued by INEC to the 1st Respondent and give same to him, (the Appellant). I agree with the learned Counsel for the 1st Respondent that by virtue of the provisions of Section 75(1) and (2) of the Electoral Act, 2010 (As Amended), a sealed certificate of Return can only be issued by INEC to a winner of a General Election and rather than the Appellant asking for cancellation of the primaries so held, he had sought for INEC (the 4th Respondent) herein to issue Certificate of Return to him as the People’s Democratic Party’s candidate for the office of member representing Nsukka/Igbo-Eze South Federal Constituency. I am also in further agreement with the learned counsel for the 1st Respondent that by seeking for this Relief 7 amongst others, the Appellant has taken his case beyond an intra-party contest for which the Federal High Court has jurisdiction by virtue of the circumscribed powers vested on it by section 87(9) of the Electoral Act, 2010 (As Amended) and brought same within the purview and circumference of the Election Tribunal or Court.

The Appellant, it would appear as rightly submitted by the learned counsel for the 1st Respondent, is still basking in the euphoria of Amaechi v INEC wherein the (now Governor of Rivers State) who was substituted after winning the P.D.P. Governorship Primary but the Supreme Court restored his mandate and declared him de jure candidate of the party who campaigned, contested and won the election even when he did not contest the General Elections.

In the instant case, the learned counsel for the 1st Respondent has cited the cases of Amaechi v. INEC (2008) 158 NWLR (Pt. 1113) 357; where the Supreme Court decided that “there is no room for a candidate who never contested a primary election in such setting to emerge a party candidate”, to submit that the Appellant did not participate at any primary election so as to qualify him as a candidate of the 3rd Respondent at the April, 2011 General Election for the House of Representatives seat of the Constituency in question. It is true that Relief 7 as sought by the Appellant can only be in an Election Tribunal or where this Court or the Supreme Court being the trial or Appellate Courts in any Election Petition nullities the certificate of Return of any candidate which had earlier been wrongfully issued by INEC to a supposedly winner of a General Election as provided in section 75(1) and (2) of the Electoral Act 2010.

Now, the learned counsel for the 1st Respondent has drawn our attention to certain salient paragraphs of the Appellant’s statement of Claim as well as his Statement on Oath which go to show that the Appellant did not even participate in the primaries of the 3rd Respondent for purposes of erecting the flag bearer of the party for the said Federal Constituency. In paragraphs 58 of both the Statement of Claim and statement on Oath of the Appellant, he averred thus:

“58.   That no primary election was conducted in which the Plaintiffs participated or voted for any aspirant.”

 

With these averments, the case of the Appellant was doomed to fail more so, when he had pleaded in paragraph 49 of Statement of Claim as well as his Evidence on Oath that:

 

“49.   The plaintiff states that the failure, refusal and neglect of the 3rd Defendant to conduct the primary election for Nsukka/Igbo-Eze South Federal Constituency on 5/1/2011 was due to the crises in the 3rd Defendant’s party. The affidavit of Vita Abba dated 22/2/2011 is hereby pleaded and shall be relied upon at the trial of this Suit”

 

The Appellant had also stated in paragraphs 46, 47 and 48 of both the Statement of Claim and his Statement on Oath that he was one of the eight aspirants that were cleared by the 3rd Respondent to contest the primary on the 5th of January, 2011 and that on the date in question, the 3rd Respondent refused to conduct the primary for the cleared aspirants. He further averred that the only mode of communication used by the 3rd Defendant to communicate with him and other aspirants, was by paid adverts in National Newspapers by the National Organizing Secretary of the 3rd Respondent. He also alleged that the 3rd Defendant failed to inform him and other aspirants of the venue, time, mode of the Primary Election for the Constituency in question nor were they informed of the Electoral and Returning Officers of the said Primary Election.

However in spite of the fact that other aspirants participated in the Primary of 20th January, 2011 as can be gleaned from page 624 of the Records, nothing by way of petition or steps taken to verify from the party Secretariat the new date fixed for the primary was done by the Appellant to ensure that he participated at the Primary Election which the 1st and 3rd Respondent claim and have shown evidence at pages 620 – 626 that the election that threw up the 1st Respondent was conducted by a Panel approved and appointed by the National Working Committee of the 3rd Respondent. See particularly Exhibits H and M.

Most disturbing was the fact that the Primary Election took place on the 20th of January, 2011 and it was not until the 28th of March, 2011 that the Appellant initiated the Suit at the Federal High Court and also it was not until the 1st of April, 2011 (the eve of the General Elections slated for the 2nd of April, 2011), that the Appellant attempted to serve the 1st Respondent – a scheme which the learned Counsel for the 1st Respondent’s rightly describes as an attempt by the Appellant to lay judicial ambush against the 1st Respondent. This attitude of the Appellant not only smacks of lethargy in view of the provisions of Section 87(10) of the Electoral Act, 2010 which presupposes that pre-election matters should be initiated expeditiously and decided with despatch since nothing shall empower courts to stop holding primaries or general elections under the Act pending the determination of the Suit.

As rightly submitted by the learned counsel for the 1st Respondent, the need for the expeditious filing and determination of pre-election matters was emphasized in Farouk Salim v. C.P.C. & 2 Ors. (2013) ALL FWLR (Pt. 677) 673 per Peter Odili, J.S.C. (628 – 630) paras H – D who in pronouncing on a similar scenario to the situation we have found ourselves held that such a matter filed belatedly would be declared spent or no longer alive for adjudication by the courts mentioned in Section 87(9) of the Electoral Act. Where, as in this case, the 1st Respondent who contested the Primary Election was declared winner and participated in the National Assembly General Elections of 2nd April, 2011 as a candidate of the 3rd Respondent for the Nsukka/Igbo-Eze South Federal Constituency and was duly declared winner and a Sealed Certificate of Return issued to him while the Appellant subsequently went to court to challenge the Primary Election seeking the order of the court to declare him as the winner of that primary Election, the subject-matter of his suit is not only now hypothetical, academic, otiose and spent but in line with dictum of Peter Odili, J.S.C. which I adopt as mine, the Appellant cannot realize his dream of being declared by the court as the winner of primary election which he never took part as he lacked the seriousness of ventilating his grievances as at when due until the subject matter has now been spent, academic and otiose. Having not participated at the elections at both the primary and General stage, section 141 of the Electoral Ad, 2010 which provides that:

“141.           An election tribunal or court shall not under any circumstance declare any person a winner at any election in which such a person has not fully participated;”

shall apply to the facts and circumstances of this case and accordingly, the court below was right in declining the jurisdiction to entertain and determine his suit.

Turning to the submission of the learned counsel for the 1st Respondent that the issue of nomination and sponsorship of a candidate by a political party are the domestic affairs of the political party of which the court lacks jurisdiction and the reliance placed on the authorities of Akpan v. Bob & 4 Ors. (Supra), Ehinlawo v. Oke & 2 Ors. (Supra) and the recent decision of my learned brother Agim, J.C.A., in Ugwu & Ors. v. People’s Democratic Party & 5 Ors. (the unreported judgment of this Honourable Court in Appeal No. CA/E/259/2012) particularly at pages 42 and 43; where he concurred with the decisions of the Supreme Court above cited and Onuoha v. Okafor (1983) 2 SCNLR 244 and rightly held that the Courts have no power to compel a political party to sponsor a candidate outside the thin limited power conferred under Section 87(9) of the Electoral Act, 2010 (as Amended), I had cause to comment on the decisions of the Supreme Court on the non-justiciability of political questions and the extent of the powers donated to the Courts mentioned in Section 87(9) of the Electoral Act 2010 (As Amended) in Consolidated Appeals Numbers CA/YL/30/2011 and CA/YL/39/2011, Hon. Babangida S. M. Nguroje v. Hon. Ibrahim Tukur El-Sudi & 2 Ors., P.D.P & 2 Ors, v. Hon. Babangida S. M. Nguroje & 3 Ors.; and Appeal No.CA/YL/15/2012 DR. Umar Ardo v. Admiral Murtala Nyako (RTD.) & 2 Ors. consolidated with APPEAL NO. CA/YL/21/2012 Admiral Murtala Nyako (RTD.) & 2 Ors v. Dr. Umar Ardo (unreported decisions of Yola Division of the Court of Appeal delivered on the 17th day of December, 2012 and 26th of February, 2013), respectively.

In the above cases, I postulated and reasoned that in Lado v. C. P. C. (Supra) cited with relish by the learned Senior Counsel for the Appellant nay learned counsel for the 2nd Respondent, my noble Lord Onnoghen, JSC; in the lead judgment had a reminiscence of pre-election matters emanating from nomination or selection of candidates to contest elections under the platforms of political parties which were hitherto no go areas for the Courts no matter the horse trading, chicanery, back-stabbing or bare-faced fraudulent activities of political parties and their smart members in the course of such exercise. The Courts, in the circumstances it would appear then, demonstrated downright reticence or paid blind eyes in the face of such unwholesome developments right from the inception of the second and third Republics perhaps because of the state of the law. See for instance the Supreme Court decisions in Onuoha v. Okafor (1983) 2 SCNLR 244, Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 at 334 – 335; Ugwu v. Ararume (2007) ALL FWLR (Pt. 377) 807; and subsequent like matters. Of course, the usual mantra was that disputes emanating from such exercise were purely political questions exclusively within the domain of political parties and accordingly not justiciable by Courts of law.

The non-justiciability of so called political questions assumed a near calamitous dimension when between 2003 and 2005, it culminated in the chaotic imbroglio of the Anambra State PDP intra party squabbles where candidates who were screened and cleared and were duly nominated by majority of their members at the primary elections and indeed contested and won their respective General elections and were duly so declared; had their victories annulled over night and their certificates of returns awarded like chieftaincy titles to favourite surrogates of political God Fathers with the tacit connivance of the Resident Electoral Commissioner and INEC Headquarters, Abuja; under the guise of substitution. Cases like Abana v. Obi & Ors (2005) 6 NWLR (Pt. 920) 183; Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) 489; Ukachukwu v. Uba, Amaechi V. INEC and other cases of like nature abound in our Law Reports like rashes.

To stem the tide of arbitrariness that characterised the conduct of primary elections and other untoward malpractices by political gladiators and the opprobrium generated within the polity, the National Assembly (introduced) section 34 of the 2006 Electoral Act which provided for a limitation period of 60 days within which a political party may change or substitute its candidate for election and for such substitution to be mandatorily in writing with verifiable reason advanced to INEC. The section also conferred a right on a candidate who was substituted contrary to the provision of section 34 of the Act to challenge such substitution in a court law.

There is no doubt as was rightly held by the learned and seminal Law Lord Onnoghen, JSC and his equally erudite brothers Adekeye and Fabiyi JJSC; in their concurring judgments in Lado v. INEC (supra) at pages 622 para A-F and 628; that the introduction of section 34 of the 2006 Electoral Act, did not change, modify or alter the pre-existing principle of non-interference by courts on the internal affairs of a political party as to who its candidate should be but merely restricted the right or power of a political party to change or substitute its candidate at their whims and caprices before an election.

Be that as it may, even though the present Electoral Act 2010 (as amended) does not provide for substitution of nominated candidates by political parties (infact Section 33 of the Act placed on absolute bar on substitution of a Candidate once his/her name has been submitted to INEC except in the case of withdrawal or death of the candidate), there are salutary provisions in sections 87(1) which provides for the holding of Party Primaries for nomination of candidates; 87(4)(c),(i), (ii), 87(8) and more particularly 87(9) thereof which regulate the conduct of parties primaries. For instance, section 87(4)(c) (i) and (ii) which deal with the subject matter of this Appeal that is to say nomination of candidates for any elective positions by a political party, stipulate thus:-

“87(4) A political party that adopts the system of indirect primaries for choice of candidate shall adopt the procedure outlined below:-

87(4)(c) in the case of nominations to the position of a Senatorial Candidate, House of Representatives and State House of Assembly a political party shall where they intend to sponsor candidates-

(i)      hold special Congress in the Senatorial district, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirant in designated centres on specified dates.

(ii)     the aspirant with the highest number of votes at the end of voting shall be declared winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party.

Section 87(8) of the Act further provides: “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
Finally, Section 87(9) provides that:-

In the cases of Hon. Babaginda Nguroje V. Hon. Elsudi and Dr. Ardo v. Admiral Nyako (Rtd) (Supra) I had cause to consider the provision of Section 87(9) thus:

“Notwithstanding the provisions of the Act or rules of the political party, an aspirant who complains that any of the provisions of this 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, may apply to the Federal High Court or the High Court of a State, or FCT, for redress.”See also Sections 85, 86, and 30 – 33 of the Electoral Act, 2010 (as amended).

 

In NDIC V. Okem Enterprises (2004) 10 NWLR (pt. 880) 107 at 182 para. H. Per Uwaifo, JSC; defined the term ‘notwithstanding’ while interpreting the provision of section 251 of the Constitution which deals with the jurisdiction of the Federal High Court as connoting thus:

“When the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that as used in section 251(1) of the Constitution, no provision of that Constitution shall be capable of undermining the said section.”

 

Going by the above authority, section 87(9) of the Electoral Act excludes any impinging or impeding effect of any other provision of the Act or even the Guidelines for primary elections made pursuant to the Constitution of the PDP/2nd Appellant (in this case 3rd Respondent) (which by its Preamble admits at page I thereof that: “The Electoral Guidelines for Primary Elections, 2010 of the Peoples Democratic Party were, therefore drawn up, to conform strictly with the provisions of ……, the Electoral Act, 2010 and the Constitution of the Federal Republic of Nigeria”) from that section of the Electoral Act fulfilling itself in the regulation of party primaries. In other words, by the above authority, every other section of the Electoral Act, the PDP Constitution and Guidelines for the conduct of primary Elections; are subordinated to Section 87(9) of the Electoral Act which guarantees an aspirant in a Party Primary the right to seek redress in a Court of Law provided his complaint is that any of the provisions of the Act, Rules or Guidelines of the Political Party has not been complied with in the selection or nomination of a candidate of such a political party for an election.

It is pertinent to note that in Lado v. CPC (2012) ALL FWLR at page 263 paragraphs G-H to 624 paragraph A; Onnoghen, JSC, again commenting on the provisions of the Electoral Act above highlighted, reiterated the position of defunct Electoral Laws on the impotence of the Courts to choose, select or nominate candidates for political parties even in the face of breaches of the extant Electoral Act 2010, the party’s Constitution and Guidelines for the conduct of primaries and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the course of such exercise as an aspirant cannot invoke the jurisdiction of either the Federal High Court or High Court of the State as provided for under section 87(9) unless such an aggrieved aspirant brings himself within the ambit of section 87(4)(b)(c) of the Electoral Act 2010 (as amended). Hear His Lordship:

“The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended) supra. It is only if he can come within the provisions of those subsections that his complaint can be justiciable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides with the political party to exercise. The enactment is not designed to encourage factions emerging from the political parties with each electing its candidates but claiming same to be candidates of the political party concerned.

In the instant case, evidence on record shows that there were two primaries and the contending parties claim their right to represent the 1st respondent not from a single primary conducted by the 1st respondent.

At page 627 paragraphs F – H to 628 paragraphs A – C; His Lordship in the concluding part of the judgment further emphasized the point that:

 

“As stated earlier in this judgment, section 87 of the Electoral Act, 2010 as amended, deals with the procedure needed for the nomination of a candidate by a political party for any election and specifically provided remedy for an aggrieved aspirant who participated at the party primaries which produced the winner by the highest number of votes. Where, however, there is a dispute, as in the instant case as to which of two primaries of a political party produced the nominated candidate that dispute is not justiceable under the provisions of section 87(4)(4)(b)(ii) and (10) supra and the Courts will have no jurisdiction to entertain same.
In the instant case, the jurisdiction in question is statutory and is very limited in scope. On the face of the claim, it would appear that the Courts have jurisdiction under section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended), if the right being claimed by the appellants and in dispute between the parties arose from the primaries of 15 January, 2011, alone.
Once their arises a dispute as to which of the two primaries conferred a right of candidature on the parties to represent a political party in an election, the matter is taken outside the purview of section 87(4)(b)(ii), (c)(ii) and (10) of the Electoral Act, 2010 (as amended).”

 

From the stand point of undiscerning minds on the dicta of Onnoghen, JSC; above highlighted (and it would appear that the learned Senior Counsel for the Appellant and 2nd Respondent have taken these positions in their respective arguments), once there are two primaries conducted by a political party for the selection of a candidate to fly her flag at an election in a particular Constituency; the Courts will automatically be divested of jurisdiction to entertain any dispute emanating from such exercise. This position poses the pertinent question as to the essence of sections 87(4) (b)(ii), (c)(ii), 87(9), 87(10), 85 and 86 and even 30 – 33 of the Electoral Act, 2010 (as amended), respectively; Articles 31, 32, 33 and 50(e) of the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party and the Constitution of the Federal Republic of Nigeria particularly sections 6(6)(a) and (b) and 36 (1)(2) (a) and (b) thereof.

Where, as in this case, (a) the 1st Respondent claims to have been duly elected at the Special Congress primary duly convened and conducted by the National Executive Committee (NEC) of the PDP (2nd Respondent) on 6th January, 2011 and supervised by the statutory Regulatory Agency (3rd Respondent/INEC) in line with the provisions of the Electoral Act, the Party’s constitution and Guidelines; (b) the party (2nd Respondent) purporting to act upon the complaint of the Appellant to the party’s Election Appeal Panel refused to submit the name of the 1st Respondent as provided by sections 87(4)(c)(ii) and 87(9) of the Electoral Act, 2010 (as amended), should the Court helplessly fold its arms and watch the desecration of Electoral Act, the Party Constitution and Guidelines and even the Constitution of the Federal Republic of Nigeria on the ostensible reason that two primary elections have been conducted even where the one that was not conducted by the proper organ or in accordance with the Party’s constitution and the Electoral Act, is challenged by an aspirant?

Secondly, where 1st Respondent further alleges that the 2nd Respondent’s Appeal Panel rather cancelled his election without giving him a hearing; proceeded to conduct a rerun-election behind (his) 1st Respondent’s back whereby the Appellant was purportedly declared winner and his name submitted to 3rd Respondent/INEC; would it not tantamount to manifest absurdity for the Courts not to interfere simply because the Appellant/2nd Respondent and its Appeal panel have precipitated a situation where there were two primaries leading to the nomination of the 2nd Respondent’s candidate for the election into the Federal Constituency?

I dare ask these questions with the hindsight of the impregnable doctrine of judicial precedent and with the trepidation of a penultimate Court bound willy-nilly to follow the decisions of the Supreme Court.

Fortunately, I find solace and umbrage in a number of recent decisions which have been brought to our attention by the learned Senior Counsel for 1st Respondent and even the Appellant. For instance, in Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 at 59 para. H to page 60 paras A – E, the Supreme Court per Rhodes-Vivour JSC; held inter alia on this subject matter:

“The nomination of a candidate to contest an election is party the sole responsibility of the political concerned. The Courts do not have jurisdiction to decide who should be sponsored by any political party as its candidate in an election. See: Ugwu V. Ararume (2007) 12 NWLR (Pt.1048) para 367; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) para. 310, Onuoha V. Okafor (1983) 2 SCNLR p. 244. But where the political party nominates a candidate for an election contrary to its own Constitution and Guidelines a dissatisfied candidate has every right to approach the Court for redress. In such a situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party complied fully with legislation on the issue of nomination. The court will never allow as political party to act to arbitrarily or as it likes. Political parties must obey their own Constitution, and once this is done there would be orderliness and this would be good for politics and the country”.

 

The above stance of His Lordship found resonance in the dictum of Fabiyi, JSC; while pronouncing on the scope of Section 87(10) in Chief Ikechi Emenike V. Peoples Democratic Party & Ors (2012) 12 NWLR (Pt.1315) Pg 556, thus: “From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a Court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the political party conducted a primary election in which he was an aspirant and that the Primary Election was conducted in breach of specific provisions of the Electoral Act -Electoral Guidelines.” page 590 para. D to page 591 para. D.

 

“It must be elementary now that the only valid primary is the one conducted by the Executive Committee of the PDP. The primaries which that Appellant participated in was illegal, it having been conducted by the State Executive Committee of the PDP. That explains why the Appellant’s case crumbled like a pack of cards with concurrent findings of facts by the Courts below stating the obvious position of the law…
But where the political party conducts its primaries and a dissatisfied contestant at the primaries complains about the conduct of the primaries, the Courts have jurisdiction by virtue of provisions of Section 87(9) (now 87(10) of the Electoral Act to examine if the primaries elections were conducted in accordance with the Party’s Constitution and Guidelines, see Hope Uzodinma v. Senator O. Izunaso 2011 Vol. 5 (Pt.1) M.J.S.C.P. 27, (2011) 17 NWLR (Pt. 1275) 28. This is so because in the conduct of its primaries the court will never allow a political party to act arbitrarily or as it likes.” Per Rhodes Vivour, JSC page 60 para. E.

 

Before the decisions in the above cited cases Tobi, Oguntade and Muhammad JJSC; (although the subject matter of the case then was substitution under Section 34(2) of the 2006 Electoral Act), had laid the foundation for the current trend of the Law and the insistence that the breach of the Electoral Act, the Party Constitution and Guidelines for conduct of primaries confers an aspirant with the locus standi to challenge the outcome of a Party’s nomination when they held in the first place that it makes nonsense of the Electoral Guidelines of the PDP if the party will not follow its Constitution and Guidelines for the conduct of the Parties’ Primary (Per Tobi JSC). On the part of Oguntade, JSC; the emeritus judicial icon ever so pungently put it beyond peradventure that Courts of law would no longer shy away from so-called political questions where a party desecrates its Constitution or Guidelines for the conduct of Primary Election; when he remarked:

“If the political parties, in their wisdom had written it into their Constitutions that their candidates for election would emerge from their party primaries it becomes unacceptable that the Court should run away from the duty to enforce compliance with the provisions of the parties’ Constitution. The Court did not draft the Constitutions for these political parties. Indeed, the Court, in its ordinary duties, must enforce compliance with the agreement reached by the parties in their contract.”

Finally, Muhammad, JSC; in lending his voice to those of his colleagues intoned inter alia: “where a member of a political party feels aggrieved because both the political party to which he belonged and INEC side-lined him, after having been initially and properly screened and nominated to contest for an election but at the nick of time had been substituted by another member of the party, I think, he has every right to ask the court of law to intervene and protect his right to be allowed to contest the election”. In fact and indeed, this is the scenario that was created in this case thus warranting the plaintiff/1st Respondent to run to the Federal High court for redress in the Nguroje v. Sadi case which emanated from the P.D.P, Primary in respect of Gashaka/Kurami Federal Constituency Flag bearer for the House of Representatives Election, 2011.

On the question of Party Supremacy and non-justiciability of this case as being bandied about by learned Senior Counsel for the Appellant and 2nd Respondent that care (and indeed the learned counsel for the 1st
Respondent in this Appeal); His Lordship emphasized on the right of a citizen of this Country as guaranteed him by the Constitution to vie for any elective position or political offices created under the Constitution upon satisfaction of the parameters for such contests and capped it up with this notable admonition:

“Where any of such enactment, rules or policies come in conflict with any section of the Constitution, that enactment, rule or policy must surrender to the Constitution. Except where it is meant to say that a member of a political party has no right at all in election matters, I cannot see why a political party should be permitted once it has given its commitment or mandate to a candidate whom it has already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justiifiable cause. Politics is not anarchy, it is not disorderliness. It must be punctuated by justice fairness and orderliness.”

 

I adopt the above quoted dicta of their Lordships of the apex Court as far as the issue of jurisdiction in this case is concerned herein hook line and sinker.

In the light of the above, and from the question posed for determination on this issue, the Federal High Court ordinarily, would have had jurisdiction to entertain the claim of the Appellant but since it would appear that the Appellant was not even a party to the primary election he is complaining about, on the authorities earlier analyzed, he lacked the locus standi and cause of action to ignite the jurisdiction of the Federal High Court to entertain and determine his case. The cases of Emeka v. Okadigbo & 4 ors. (Supra); Ibrahim Musa Argungu & 4 Ors. (Supra); Ararume v. INEC & 2 Ors; Gabriel Y. Olofu & 2 Ors. v. Itodo (Supra); Akpelu v. Chukwu & 4 Ors.; Hon. Gozie Agbakoba v. INEC & 2 Ors. were all rightly decided on their peculiar facts and circumstances and these for now represent the state of our law. However, they are not applicable to the fact and circumstance of this case as the Appellant has not unequivocally shown to the trial court and this Court that he was an aspirant who participated in the primary conducted by the National Executive Committee of the 3rd Respondent/P.D.P. so as to imbue him with the toga of an aggrieved aspirant who can complain about the conduct of such primary election.

Accordingly, this Issue shall be and is hereby resolved against the Appellant.

ISSUE NUMBER 2 (TWO)
WHETHER THE DECISION OF THE SUPREME COURT IN SENATOR Y.G. LADO & ORS V.C.P.C. (2011) 12 S.C. (Pt.111) PAGE 113 IS APPLICABLE TO THIS CASE?
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT.

Arguing this Issue, the learned Counsel for the Appellant submitted in the first place that there are distinguishing factors between the present case and the LADO v. C.P.C. case. He observed that firstly, the present case involves the Constitution of the Peoples Democratic party – 2009 (as amended) and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party whereas the Lado’s case was decided on issues that arose from the Constitution of the Congress for Progressive Change (C.P.C.).

Learned Counsel for the Appellant submitted that the provisions of these Constitutions of the two Political Parties are not in pari materia, thus Lado’s case is not applicable to this case. He referred us to the reaction of a Supreme Court to a similar argument in Prince John Okechukwu Emeka v. Lady Margery Okadigbo & Ors (2012) 7 S.C. (Pt.1) 1 at 54 lines 23 – 31; per Rhodes-vivour; J.S.C. on the bone of contention in Lado’s case.

On the second distinguishing factor between this case and Lado’s, he argued that the instant case involves a situation where the National Executive Committee of P.D.P. failed to conduct primary Election for Aspirants seeking to be Candidates of the PDP for the member Nsukka/Igbo-Eze South Federal Constituency. Again, this case according to the learned Counsel, involves a situation where two different chapters of the Enugu State P.D.P. purportedly conducted primaries for the 2nd Respondent on 20/1/11 and a “re-run” primary on 20/1/11 for the 1st Respondent to whom photocopies of result sheets were issued.

In Lado’s case, he further contended, there were two parallel primaries conducted by the National Executive Committee of the C.P.C. on 13/1/2011 and 15/1/2011. That distinction was highlighted in the case of Prince Chukwu Emeka v. Lady Okadigbo & Ors (supra) at page 64 lines 1 – 15 per Muhammed J.S.C. learned Counsel for the Appellant again cited per Adekeye, J.S.C. at page 6g lines 20 – 25 on the third distinguishing factor which was the procedure for nomination of candidates in the Peoples Democratic Party as against that of the Congress For Progressive Change (C.P.C).

Fourthly, the learned Counsel for the Appellant noted that the Primaries conducted by the National Executive Committee of the C.P.C. were conducted at venues approved by the Constitution of the C.P.C. but in the instant case, the purported “re-run” primary election of 20/1/2011 of the 1st Respondent was conducted in Enugu Metropolis while that of 12/1/11 was conducted in a private residence of a party stalwart.

Finally, the learned counsel was of the view that in Lado’s case, there were no criminal allegations of production of false photocopy result sheets, whereas, in the instant case, there are allegations of the 1st and 2nd Respondents producing fake result sheets to lay claim to the Candidacy of the P.D.P. placing reliance again on Prince Emeka v. Lady Okadigbo (Supra) at page 54 lines 5 – 15 per Rhodes-Vivour, J.S.C. we were urged to hold that Lado v. C.P.C. is not applicable in this case so as to oust the jurisdiction of the Lower Court.

In conclusion we were urged hold further that the trial court has jurisdiction to hear the case of the Appellant; the case of C.P.C. is inapplicable to the present case and that the Appeal is meritorious and should be allowed. Consequently, all the Reliefs sought in paragraph 4 of the Notice of Appeal at page 1123 of the Records should be granted the Appellant as prayed.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO (2).

In his reply to the Arguments of the Learned Counsel to the Appellants, Chief Iyamanbhor, Esq, for the Respondents submitted per contra that the case of Yakubu Garba Lado & Ors V. C.P.C. & Ors. is applicable in this case and is not distinguishable as canvassed by his learned colleague on the other side that the constitutions of the C.P.C. and P.D.P. are different.

According to him, what matters herein is the decision in the case and the reason for reaching at that decision. He conceded that there are certainly no two cases that can be same as the name and circumstances must differ. However, he continued, while relying on the case of Adeotun Olade, J. I. (Nig) Ltd V. Nigerian Breweries Plc. (2007) 5 NWLR (Pt. 1027) 415, per Tobi J.S.C.; that where at the end, the point of decision are the same, then the case can be applied if they are in all fours. On the much reliance placed on the case of Prince John Okechukwu Emeka Vs. Lady Margery Okadigbo and others (Supra), the learned Counsel to the 1st Respondent pointed out that the Appellant has continuously misled the court that the 3rd Respondent failed to conduct primaries whereas there is clear evidence that the 3rd Respondent conducted primaries. One which was of the 9th to 12th January, 2011 where 2nd Respondent claimed he emerged winner.

Learned Counsel for the 1st Respondent argued in respect of the 1st Respondent that he had contended in his pleading and Statement On Oath that other member of the 3rd Respondent including Senator Ayogu Eze, Hon. Ifeanyi Ugwuanyi and others petitioned the National Body of the 3rd Respondent alleging that the purported Primary of 9th – 12th January, 2011 was a Kangaroo and undemocratic in that the then Chairman of the 3rd Respondent organized same and pandpicked Candidates of his choice which resulted in actual violence. Following these barrage of petitions against DR Okwesilieze Nwodo, the said Primary which was conducted in the private home of the said Dr Nwodo, was cancelled and a re-run conducted by the 3rd Respondent which was monitored by the 4th Respondent and accepted.

The learned Counsel for the 1st Respondent asserted that the Lower Court reviewed the facts above stated and came to the conclusion that it was invited to choose which of the candidates to be the 3rd Respondent’s candidate, which ultimately falls in line with Yakubu Garba Lado Vs. C.P.C. and then hold that the decision is Lado’s case is applicable to the instant case.

Recalling the decision of Agim, J.C.A in Chief Francis Ugwu & Ors. Vs. P.D.P. & Ors (Supra) which is a sister case to the instant case, he submitted that it is the same and one primary that involved the parties in the Ugwu’s case that involved the parties in this case. According to the learned Counsel for the 1st Respondent, the Appellants/Plaintiffs participated in the Primary Election whereas, the Appellant herein refused to participate hoping to be declared a winner after all.

We were then urged to apply the decision in Chief Francis Uchenna Ugwu & Ors. V. P.D.P. & Ors (Supra) in this case and hold that Lado’s case applies hereto. In conclusion we were urged to dismiss this Appeal and affirm the decision of the trial Court in that:-

1. The Claims of the Appellant are speculative, and devoid of life issues and did not disclose sufficient cause of action thereof, and that the Court lacked the jurisdiction to entertain it.
2. The Supreme Court decision in Lado’s case is applicable and therefore the Court lacks jurisdiction in the case.

 

RESOLUTION OF ISSUE NUMBER TWO

The question arising for determination in this issue emanated from the holding of the learned trial judge that by Reliefs 3 and 7 in the Statement of Claim, the Appellant laid bare his mind that he and not the 1st Respondent is the winner of the April Election and that the Certificate of Return should have been issued to him and not the 1st Appellant. In the words of His Lordship of the lower Court:-

“It is not in doubt that the Plaintiff want the election and return of the 1st Defendant set aside. If this is the intention of the Plaintiff, and I believe it is, then it will obviously amount to Court choosing between two lists of candidates by upholding one list of the candidate to the other. It will equally amount to determining which of the two primary elections is the valid primary Election of the Political Party. This it has been held cannot be entertained by the court because, it is outside the conditions for redress clearly stipulated under the provisions of Section 87(9) of the Electoral Act (as Amended).

 

In the case of Senator Lado, it was held that;

 

“The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the purview of Section 87(4)(b)(ii)(c)(ii) and (9) of the Electoral Act (as Amended), It is only if he can come within the provision of those sub-sections that his complaint can be justiciable as the court cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides in the political party to exercise”.

 

I have had cause to reproduce my analysis of the decision in Lado’s case (supra) earlier on and am bound to follow the decisions of the Supreme Court in view of the time-honoured doctrine of judicial precedent notwithstanding the fact that the Supreme Court per Rhodes Vivour, Muhammed, Fabiyi and Adekeye JJSC in Prince Emeka v. Lady Okadigbo & 4 Ors. (2012) 7 S.C. at page 1; had variously distinguished Lado’s case which was decided upon the Constitution of the Congress for Progressive Change (C. P. C.), from others decided on the P.D.P. Constitution.

There is also no doubt that the complaint of the Appellant herein is that the 3rd Respondent did not conduct the primaries on the date fixed for same and that the venues and the State Chapters of the P.D.P. conducted the primary that threw up the 1st Respondent as well as that the 3rd Respondent forged result sheets and other documents with which they declared the 1st Respondent the winner of the said primary. There is also the allegation that two primaries the first which elected the 2nd Respondent and the second which elected the 1st Respondent were conducted by the Enugu State Chapter of the People’s Democratic Party (P.D.P./3rd Respondent) which allegation the 1st and 3rd Respondents had refuted by tendering evidence to the effect that the National Executive Committee appointed the Primary Electoral Panel which conducted the Primary of 20th January, 2011 with the approval of the National Working Committee of the 3rd Respondent as provided by its Constitution.

Upon the showing or ipse dixit of the Appellant as can be gleaned from his Statement of Claim and Statement on Oath, he was neither a participant at the purported primary election conducted by the State Chapter of the P. D. P. on the 12th of January, 2011 which ordinarily would have been null and void for want of vires so to do, nor the one of 20th of January, 2011 which by the Constitution and Guidelines of the 3rd Respondent which was the only valid primary election duly conducted for the nomination of the candidate of the party to fly the flag of the 3rd Respondent at the General Elections of the member representing the Nsukka/Igbo-Eze South Federal Constituency. After all the learned Rhodes-Vivour J.S.C. reiterated what the Apex Court had said in the cases of Onuoha V. Okafor (1983) 8 SC (reprint) 39; (Vol. 114) NSCC 494; Dathatu V. Turaki (2003) 7 SC page 1 (2003) 15 NWLR (Pt. 843) 310; P.D.P. v.  T. Sylvia & 2 Ors. S.C. 28 (2012) SC. 9) 2012 judgment delivered by this Court on 20/4/2012; “A person who was not a Candidate/aspirant at the primaries cannot come to the Court to complain about the conduct of the primaries”.

Even though in the above Emeka v. Okadigbo’s case the self-same Law Lord Rhodes-Vivour J.S.C; remarked at page 41 lines 10 – 30 of the Report;

“It is the National Executive Committee of the P.D.P. that is responsible for the conduct of the Party’s National Assembly Primaries …… A primary conducted by the State Chapter of the P.D.P. is not a primary. It is an illegal contraption that carries with it no rights. It is a complete nullity…….On the other hand the purported primaries conducted on the 10th or 12th January, 2011 was conducted by the State Chapter of the P. D. P. it is null and void for the purposes of choosing the P.D.P.’s candidate for the Senatorial Elections.”

 

Fabiyi J. S. C. lending credence to the position taken above by his learned brother held at page 66 lines 1 – 5 of the Report still on the illegality of the primaries conducted by the State Chapter of the P. D. P. thus:-

“He took part in a primary election surreptitiously organised by the State Executive Chapter of the People’s Democratic Party which has no vires to organise same on 10-01-11. Such was a sham and a farce. See the case of Chief Ikechi Emenike v Peoples Democratic Party & 3 Ors. (2012) 5 SC (pt.10) at 113.”

 

From the foregoing dicta of their Lordships of the Apex Court in the above cited cases, that where two parallel primaries were conducted one by the National Executive Committee of the party and the other by the State Executive Committee, only the primary conducted by the National Executive Committee which had the right by the Constitution of their Party to so do, could produce the authentic candidate, it would appear that the decision in Lado v. C.P.C. had been overruled. However even in that case, it would appear that the Supreme Court was silent on whether in the event of the Court not hesitating to declare the choice of a candidate who failed to be nominated through the proper and recognised organ of the Party, unfit and unacceptable, whether the Courts still have no powers to choose as between the two primaries which of them produced the authentic candidate.

In my humble opinion, all said and done, the ratio decidendi as far as jurisdiction which is the crux of this matter is concerned, is as the learned trial judge quoted that to confer the Appellant with the requisite locus standi and cause of action he must necessarily bring himself within the ambit of an aspirant who contested a primary election conducted by the National Executive Committee of the Party which in this case he failed to do. So with the above scenario, the wind is taken completely out of the sail of the Appellant’s case as Lado’s case applies mutatis mutandis to the facts and circumstances of this case. See also Adeotun Olade J. I. (Nig.) Ltd. v. Nigerian Breweries Plc. (2007) 5 NWLR (Pt.1027) page 415 per Tobi J.S.C.

On the whole, I am of the considered view that although there is a subtle distinction between this case and Lado’s case, there is one fine and distinctive thread that runs through their gamut which is the non-conferment of locus standi and cause of action on a non-participant at a Party Primary Election to initiate any proceedings challenging the conduct of such an Election and therefore want of jurisdiction of the Courts mentioned in Section 87(9) of the Electoral Act 2010 (as Amended).

Issue Number Two (2) is also resolved against the Appellant. This Appeal therefore lacks merit and is accordingly dismissed. I make no order as to costs.

ADZIRA GANA MSHELIA, J.C.A.:

I read before now the lead judgment of my learned brother Agube, JCA. just delivered. I agree entirely with the reasoning and conclusion arrived thereat, that the appeal ought to be dismissed.

The appellant having not participated at a Primary Election conducted by the National Executive of his party has no locus standi to initiate any proceedings challenging the conduct of such election. See PDP v. SYLVA (2012) 13 NWLR (PT. 1316) 85. In Ikechi Emenike v. Peoples Demacratic Party & Ors. (2012) 12 NWLR (Pt. 1315) pg. 556. His Lordship Fabiyi, JSC while pronouncing on the scope of Section 87(9) of the Electoral Act 2010 (as amended) stated thus: “From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a court, the aspirant must show clearly and without any equivocation that the National Executive Committee of the Political Party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specific provisions of the Electoral Act/Electoral Guidelines.” Appellant is therefore not an aggrieved aspirant as such he cannot ignite the jurisdiction of the Federal High Court under S. 87(9) of the Electoral Act 2010 (as amended) to entertain and determine the case.

For these and the more detailed reasons in the lead judgment, I too dismiss this appeal and make no order as to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.:

I had read the judgment just delivered by my Learned brother, IGNATIUS IGWE AGUBE JCA. I am in complete agreement with the reasoning and conclusions there. I also hold that the appeal lacks merit. It is accordingly dismissed. I make no order as to costs.