Locus Standi of a Party Unlawfully Excluded from a Primary Election after Being Cleared to Contest

CASE TITLE:       JONATHAN v. INEC & ORS (2023) LPELR-60081(CA)

JUDGMENT DATE:      25TH JANUARY, 2023

JUSTICES:                   OSEPH SHAGBAOR IKYEGH, JCA

OLABODE ABIMBOLA ADEGBEHINGBE, JCA

ABDUL-AZEEZ WAZIRI, JCA

DIVISION: PORT HARCOURT

PRACTICE AREA:           PRE-ELECTION MATTERS

FACTS:

In this case, the appellant, who was a member of the 2nd respondent political party in Bayelsa State, sought to contest in a primary election for the Ogbia State Constituency 1 seat in the Bayelsa State House of Assembly. The primary election was originally scheduled to be held at the Ogbia Local Government Secretariat but was disrupted by violence, resulting in one person’s death. Subsequently, the 2nd respondent moved the primary election to a different location, the Sports Complex at Ovom, Yenagoa, Bayelsa State, citing security concerns. The appellant claimed he was not informed about the new venue and was absent, along with his supporters, during the primary held at Ovom.

The appellant filed an Originating Summons questioning whether there was compliance with relevant electoral laws and party regulations in the conduct of the primary election. He sought several declarations from the Court, including the invalidity of the primary held at the Sports Complex and the direction to conduct a new primary election at the original location with the authentic delegates.

However, the trial Court partly upheld the objections raised by the 2nd and 3rd respondents (defendants) through their notices of preliminary objection. Consequently, the appellant’s case was both struck out and dismissed, leading to the rejection of his claims. Being dissatisfied with the judgment of the trial Court, the appellant appealed.

ISSUES:

The Court adopted the following issues for the determination of the appeal:

1. Whether the Appellant is an aspirant for the position of member representing Ogbia Constituency 1 in the Bayelsa State House of Assembly.

2. Whether the memorandum of conditional appearance, preliminary objection and counter-affidavit and written address filed by the 2nd defendant are not null and void owing to the fact that they were filed out of time prescribed by the Federal High Court (Pre-Election) Practice Directions, 2022.

3. Based on the facts and circumstances of this case, whether the learned trial Judge was right to sustain the preliminary objection of the 2nd defendant/Respondent on the ground that the originating summons served on the 2nd defendant/Respondent was not endorsed for service outside jurisdiction.

4. Whether the purported primaries election which was held at the Sports Complex, Ovom, Yenagoa, Bayelsa State, in which the 3rd Respondent was returned as winner is not null and void on the ground that the purported election did not comply with Section 84 of the Electoral Act and other legal requirements.

COUNSEL SUBMISSIONS:

The appellant’s counsel argued that the Court should only consider the Originating Summons and its supporting affidavit when determining the question of locus standi. He referred to the cases of PDP v. Sylva [2012] All FWLR (Pt. 637) 606 at 635-636 and Olaoye v. Makanjuola [2018] All FWLR (Pt. 945) 866. The appellant’s counsel contended that the appellant had gone through the screening process of the 2nd respondent, becoming an aspirant with evidence from a provisional clearance certificate. He emphasized that the 2nd respondent’s denial of allegations was ineffective and referred to specific paragraphs of the counter-affidavit. The case of Tukur & Ors v. Interglobal Procurement Engineering Services Ltd. [2014] LPELR – 22450(CA) was cited to support this argument. The appellant’s counsel also referred to the case of Uba v. Moghalu & Ors [2022] LPELR – 57876(SC), highlighting its relevance to the current case and urged the court to deem the appellant an aspirant.

In response, the 2nd respondent’s counsel argued that only those who participated in a primary election can challenge its outcome under Section 84(14) of the Electoral Act, 2022. He cited cases such as Lau v. PDP & Ors [2017] LPELR – 42800(SC), Babayemi v. Adeleke & Ors [2022] LPELR – 57904(CA), and Uba v. Moghalu [2022] LPELR – 57876(SC) to support his stance. The counsel emphasized that the appellant didn’t participate in the primary election due to security threats, which was lawfully monitored by INEC.

The 3rd respondent’s counsel argued that the appellant’s case was based on the claim that the primary election, won by the 3rd respondent, didn’t take place. He referred to evidence in the record, including result sheets, to prove that a validly contested primary election had occurred. He viewed the appellant’s allegation as criminal and referred to the case of Ikpeazu v. Otti & Ors [2016] 256 LRCN 1 at 8-9 to establish the standard of proof. The 3rd respondent’s counsel contended that the venue of a primary election can be changed with a reasonable explanation, highlighting security concerns as a paramount consideration. He cited the case of Lakanmi v. Attorney General, Western Region [1970] 6 NSCC 442 and other cases to support this perspective.

Furthermore, the 3rd respondent’s counsel argued that the appellant didn’t participate in the primary election in question, citing cases such as Ardo v. Nyako [2014] All FWLR (Pt. 744) 130 at 160 and Onuoha v. Uba & Ors. [2020] LRCN 24 at 126-127. He asserted that the appellant lacked locus standi to challenge the primary election result and that the trial Court lacked jurisdiction to hear the case on this basis. He also contended that the appellant’s request for a new primary election was unsustainable based on Section 84(14) of the Electoral Act, 2022, which only applies to grievances arising from conducted or concluded primary elections. The case of APC & Ors v. Karfi & Ors. [2015] LPELR – 41857(CA) was cited to support this view.

DECISION/HELD:

In the final analysis, the appeal was accordingly allowed.

RATIO:

ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Who is an aspirant; whether a party who purchased nomination form and was screened and cleared to contest but was unlawfully excluded from a primary election will have locus standi to challenge such election

“Section 152 of the Electoral Act, 2022 defines “aspirant” as meaning a person who aspires or seeks or strives to contest an election to a political office. The Court gave the definition of “aspirant” in the case of Uba v. Moghalu [2022] 15 NWLR (Pt. 1853) 271 at 307, to include a person who has been cleared to contest a primary election but excluded thereafter or a person who lost the primary election or whatever happened in the process of the primary election. Such a person will be qualified to file a pre-election matter, with the requisite locus standi to institute the suit.

In this appeal, the appellant mentioned and exhibited a provisional certificate of clearance issued to him by his political party, the 2nd respondent, in paragraph 6 of his amended affidavit, at page 256 of the record of appeal. That is clear evidence that he was cleared, by the 2nd respondent, to contest the primary election for the seat of Ogbia State Constituency 1, in the Bayelsa State House of Assembly in preparation for the 2023 general elections, scheduled for 22/05/2022. The case of the appellant is that he was excluded from participating in the primary election claimed to have been conducted in Ovom, Yenagoa, Bayelsa State, due to lack of information about the change in venue. In my view, the appellant copiously showed that he is an aspirant in his evidence in the amended affidavit.

The lower Court was, with due respect, in grave error when it held – at pages 594-596 of the record of appeal – that the appellant was not an aspirant because he did not attend the event or venue of the primary election which was held on 22/05/2022 at Ovom, Yenagoa, Bayelsa State. Attendance at the event of the primary election is not what makes a person an aspirant, it is the clearance of his political party for him to participate in the primary election, with the issuance of a clearance certificate (exhibit “Clearance”) to that effect.

Paragraph 36 of the appellant’s affidavit, relied upon by the lower Court in the judgment, cannot and does not change the existence of the provisional certificate, which implicitly makes the appellant, an aspirant in the primary election. See Uba v. Ozigbo & Ors [2021] 56672(SC). In determining the issue of locus standi, the lower Court should have limited itself to the amended affidavit filed in support of the application, because the merit of the suit was not meant to be determined at that point. See the case of Bakare v. Ajose-Adeogun [2014] 6 NWLR (Pt. 1403) 321 at 351.

Paragraphs 14-30 of the amended affidavit showed that the appellant was present at the designated venue of the primary election, at the Secretariat of the Ogbia Local Government, but there was a disturbance, violence, breakdown of law and order and the death of a person, which halted the process of the primary election. The fact that the venue was not officially changed and that the appellant was not informed of a new venue for the primary election is deposed in paragraph 32, 35 and 36 of the amended affidavit, which made the appellant an aspirant, who was cleared, but who was excluded from the primary election, as explained in the case of Uba v. Moghalu (supra), whose facts are very similar to the facts of this appeal. The lower Court ought to have limited itself to the amended affidavit in determining the question of locus standi.

The lower Court ought not to have held that the appellant lacked locus standi to file his suit because the appellant had requisite locus standi to do so, as an aspirant.” Per ADEGBEHINGBE, J.C.A.

Go to your primsol.lawpavilion.com dashboard to see more judgments or subscribe on store.lawpavilion.com