ONLY A CANDIDATE IN A PRIMARY ELECTION HAS LOCUS STANDI TO CHALLENGE ITS OUTCOME

CASE TITLE: EZE V. PDP & ORS (2018) LPELR-44907(SC)

PRACTICE AREA: ELECTORAL MATTERS

HEADING: ONLY A CANDIDATE IN A PRIMARY ELECTION HAS LOCUS STANDI TO CHALLENGE ITS OUTCOME

LEAD JUDGMENT: MUSA DATTIJO MUHAMMAD, J.S.C.

SUMMARY OF JUDGMENT

INTRODUCTION: 
This appeal borders on Electoral Matters.

FACTS: 
This is an appeal against the judgment of the Court of Appeal, Abuja Division, upturning the decision of the Federal High Court, Abuja.

The first Respondent had, on the 1st of November, 2014, conducted ward congresses in all the wards of the State, in which three delegates were elected from each ward. The delegates so elected were saddled with the responsibility of voting in the primary election fixed for 8th December, 2014 in order to elect the 1st Respondent’s candidate for the Governorship Election in Enugu State. When an issue arose as to the 1st Respondent’s commitment to utilizing the list of the delegates, some delegates proceeded to the Federal High Court and initiated an action. In his judgment, Ademola J. sanctioned and or recognized the list submitted by the plaintiffs as the authentic delegates to the primary election.

​The National Working Committee of the Respondent appointed a panel under the leadership of His Royal Highness King Asara A. Asara, to conduct the primary election of 8th December, 2014. The Appellant refused to participate in the primary election conducted by H.R.H Asara A Asara, on the ground that the list submitted for the primary election which was in possession of King Asara A. Asara deviated from his own. It was his claim that a parallel primary election, in which the list of delegates sanctioned by the Federal High Court was used in conducting the election, had elected him as the Governorship candidate of the 1st Respondent. The Appellant therefore did not participate in the primary election organized by the panel that was appointed by the 1st and 2nd Respondents, in which the 4th respondent emerged the winner.

The appellant proceeded to the trial Court, via an originating summons, against the respondents, and claimed some declaratory and injunctive reliefs. Parties filed and exchanged pleadings. The 4th respondent filed a preliminary objection to the originating summons, questioning the locus standi of the appellant to institute the action. Arguments in respect of the preliminary objections and the substantive suit were heard together by the trial Court which, in a considered judgment, overruled the preliminary objections, assumed jurisdiction and dismissed appellant’s suit it adjudged unmeritorious.

Dissatisfied with the trial Court’s dismissal of his suit on the merit, the appellant appealed to the Court of Appeal in appeal no. CA/A/157/2015. Equally aggrieved, the 1st, 2nd and 4th respondents appealed against the trial Court’s assumption of jurisdiction over appellant’s suit. The Court of Appeal considered the appeals separately and affirmed the trial Court’s finding that the appellant had failed to prove his case and dismissed same. The Court allowed respondents’ appeals and struck out the suit at the trial Court having been commenced by the appellant who was lacking the necessary locus standi. Aggrieved, appellant appealed to the Supreme Court.

ISSUES: 
The issue for determination is:

“Whether the learned Justices of the Court below were not wrong in their view and their conclusion that the Appellant has no locus-standi to initiate or institute the action, that his case was based on parallel primary of PDP when this was not the case and in striking out the case on the ground of lack of jurisdiction.”

DECISION/HELD: 
In conclusion, the appeal was dismissed.

RATIOS: 

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Who can institute an action in court to complain about the conduct of a political party primaries

“… This Court on the basis of the very fact maintains, in the many decisions of this Court the lower Court resorted to and applied, that the platform created by Section 87 (4) (b)(i)(ii) and (9) of the Electoral Act 2010 (as amended) enures only to an “ASPIRANT”, which term, by Section 156 of the Act means a person who pertook in the very primary election of the party with which conduct he is dissatisfied. In the case at hand the lower Court, contrary to what the trial Court wrongly held, on finding that the relevant averments in the affidavit in support of appellant’s originating summons have taken him outside the purview of Section 87(4) and (9) of the Electoral Act 2010 as amended, rightly concludes that the appellant, not being an “ASPIRANT” in the primary elections he challenges, lacks the locus standi to pursue the reliefs he seeks by the instant suit. In failing to place his case within the context of the enabling law his suit is not, therefore, justiciable. In Daniel V. INEC (2015) 9 NWLR (Pt 1463) 113 at 148, 155 this Court particularly held thus:- “…lt amounts to inverse reasoning for a party who says he scored the highest number of votes in a primary election, he says he never participated in to expect a Court to consider his claims after he has taken such a stance… The stance taken by the appellant makes further consideration of his claims a worthless exercise… No reasonable Court can do anything to assist such a slippery claimant. Refer to Ajide V. Kelani (1985) 3 NWLR (Pt 12) 248.” The foregoing decision and numerous others still bind not only the lower Court but this Court as well.”

Per MUSA DATTIJO MUHAMMAD ,J.S.C ( Pp. 28-33, paras. A-F )

 

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Who can institute an action in court to complain about the conduct of a party’s primaries

“The appellant’s complaint relates to the primary election conducted by his party (PDP) on 8th December 2014 to select its candidate for the Governorship Election of Enugu State in the 2015 general elections, in which the 4th respondent was returned as the winner. He contends that his claim falls within the purview of Section 87 (9) of the Electoral Act 2010, as amended. This Court has held in several cases that ordinarily, matters relating to the selection and nomination of candidates for an election are within the sole preserve of the political party and the Courts have no jurisdiction to look into any complaint arising thereform. See: Onuoha vs Okafor (1983) SCNLR 244: Dalhatu VS Turaki (2003) 15 NWLR (Pt. 843) 310; Agi vs P.D.P (2017) 17 NWLR (Pt.1595) 386. However, Section 87 (9) of the Electoral Act 2010, as amended gives the Courts very limited jurisdiction to ensure that in the selection or nomination process, political parties do not act arbitrarily but within the confines of their Constitution and Electoral Guidelines and in accordance with the provisions of the Electoral Act. Section 87 (9) of the Act provides a window for an aspirant who complains that any of the provisions of the electoral Act or his party’s guidelines have not been complied with in the selection or nomination of the party’s candidate for the election, to ventilate his grievance before the Federal High Court, a State High Court or the High Court of the FCT. Not only must his complaint relate to non-compliance with the Act or his party’s Guidelines, he must also bring himself within the purview of the sub-section by showing that he was an aspirant in the election complained of. Who is an aspirant? An aspirant is a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging. See: P.D.P Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 126 A-E; Lado vs. C.P.C (2011) 18 NWLR (Pt.1279) 689: Shinkafi vs. Yari (2016) 7 NWLR (Pt.1511) 340. What is more, the primary election he is complaining about must have been conducted by the National Executive Committee or National Working Committee of the party. See: Emenike vs P.D.P & Ors (2012) 12 NWLR (Pt.279) 689: NWLR (Pt. 1448) 123 @ 198 A-H.

By his own showing, the appellant did not participate in the primary election conducted by the King Asara A. Asara Election Committee set up by the 1st respondent. He was adamant that the election conducted using ad- hoc list of delegates sanctioned by the Federal High Court in suit No. FHC/ABJ/C5/816/2014, Barr. Orji Chineye. Godwin 2 Ors v.P.D.P & 4 Ors. was the authentic election. The resolution of this matter is quite straightforward. Having not participated in the primary election conducted by HRH King Asara A. Asara Electoral Panel, mandated by the 1st and 2nd respondents to conduct the primary election, the appellant failed to bring himself within the purview of Section 87 (9) of the Electoral Act. He was not an aspirant in the primary election from which the 4th respondent emerged. He therefore lacked the locus standi to institute the action.”

Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.S.C ( Pp. 37-39, paras. A-E )

 

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Who can institute an action in court to complain about the conduct of a party’s primaries

“My Lords, the appellant, as the plaintiff, had at the trial Court admitted in the affidavit supporting his Originating Summons that – I. there were two parallel primary elections to elect the governorship candidate of his party, the Peoples Democratic Party (PDP), for the general election to elect the Governor of Enugu State;and II. He participated in the Governorship primary election conducted by a panel based on the list of hoc delegates sanctioned by the Federal High Court in Suit No. FHC/ABJ/CS/816/2014 between Barr. Orji Chinenye Godwin & Ors v. People’s Democratic Party & ORS, and emerged as the person duly elected to be the candidate of the PDP; while the 4th Respondent, who participated in the primary election conducted by the King Asara A. Asara committee set up by the National working Committee of his party PDP, emerged as the Governorship candidate of the PDP for Enugu State. By this admission, contained in paragraphs 12, 13, 14, 15 and 16 of his own affidavit, the appellant cannot be heard to complain that the lower Court’s decision, rooted firmly in the binding and authoritative decisions of this Court in- – PDP v. SYLVA (2012) 13 NWLR (pt. 1316) 85 at 128. -TARZOOR v. ORTOM SAMUEL IORAER (2016) 5 SCM 152 at 163. – SHINKAFI v. YARI (2016) 3 SCM 133 at 155; was wrong. The lower Court made it clear, in its judgment at pages 971 – 972 and 976 – 977 of the Record, and I agree, that “the appellant did not take part and did not participate in the PDP Gubernatorial primaries conducted by King Asara A. Asara”, the only legitimate and authentic electoral panel appointed for that purpose by the PDP; and that- All the Appellant has succeeded in doing, in this suit, is that he has wittingly or unwittingly completely taken himself out of the purview of Section 87(4)(b)(i) & (ii) and 87(9) of the Electoral Act. 2010, as amended, and thus has no locus standi to institute or maintain the action herein against any of the Respondents. In other words, the limited jurisdiction of the Court under Section 87 of the Electoral Act, 2010, as amended cannot be invoked in (the) Appellant’s favour. It does not enure for the benefit of the Appellant since he was neither an aspirant nor a participant at the primary election organised by the 1st and 2nd Respondents. The lower Court, on the basis of the appellant, himself, admitting that he was a mere busy body, as regards the legitimate primary election conducted by the duly authorised electoral panel appointed by the PDP, held that “The Appellant lacked the locus standi to initiate or institute this action” and that the trial Court “had no jurisdiction to entertain the suit”. Since the appellant did not acknowledge the authority of the PDP NEC/NWC he was clearly an outsider and the PDP conducted their primary election without him. He cannot therefore rely on his own outlawry to set aside the primary election conducted in accordance with PDP’s internal rules which also are in accordance with the Electoral Act. The issue has since been settled by this Court from – -EMEKA v. OKADIGBO (2012) 18 NWLR (pt. 1331) 55 at 87; -EMENIKE v. PDP (2012) 12 NWLR (pt. 1315) 556 at 594; – YAR’ADUA v. YANDOMA (2015) NWLR (pt. 1448) 123 at 198; – LADO v. CPC (2012) ALL FWLR (pt. 607) 623 that the only legitimate or valid primary election of a political party is the primary election conducted by the electoral panel constituted by either the National Working Committee (NWC) or the National Executive Committee (NEC) of the political party: in this case the King Asara A. Asara led Electoral Panel.”

Per EJEMBI EKO ,J.S.C ( Pp. 40-43, paras. A-B )

 

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Who can institute an action in court to complain about the conduct of a party’s primaries

“Section 87(1) of the Electoral Act, 2010 provides that a political party seeking to nominate candidates for elections under the Acts shall hold primaries for aspirants to all elective positions. It is therefore very clear that primary election can only be held by a political party that seeks to nominate a candidate. In the instant case the only panel appointed to conduct the governorship primary election in Enugu State in 2015 is the one headed by King Asara A. Asara. Since the Appellant refused to participate in that primary election, he was not a candidate in the said primary election and therefore lacks locus standi to challenge its outcome. Section 87(9) of the Electoral Act is so clear, as it gives the right to challenge the outcome of a primary election to only aspirants. This section provides as follows:- “Notwithstanding the provisions of the Act or rules of a 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.” In PDP & Anor vs Sylva & Anor (2012) 13 NWLR (Pt. 1316) 85 at 128, this Court, per Rhodes-Vivour, JSC held: “An aspirant is a person with a strong desire to achieve a position of importance or to win a competition. Indeed Section 87(1) of the Electoral Act states that: “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all election posts.” From the above it is clear that an aspirant is a person who contested the primaries. An aspirant is thus a candidate in the primaries.” In Shinkafi & Anor vs Yari & Ors (2016) 3 SCM 133. My learned brother Okoro, JSC emphasized the point that a person who is not a candidate in the primary election cannot challenge the outcome in the following words:- “Equally settled is the fact that as at the moment, the only window opened for the Courts to entertain action on and/or concerning nomination of candidates for any election by political parties is as provided under Section 87(8) or (9) or (10) of the Electoral Act, 2010, as amended…. As a result of the above provision conferring (sic) this Court has held, in very many cases, that only an aspirant in the primary election conducted by the political party can question the result or nomination or declaration of any person by the party as the winner of the primary election and consequently the sponsored candidate of the political party concerned in the election in issue. It follows therefore, that no other person or member of the political party concerned, has the locus to challenge or question the nomination of any candidate by a political party for any election.” Even at the risk of repetition, the Appellant was not a candidate in the governorship primary election that was held in Enugu State in 2015, as such he lacked the locus to challenge the declaration of the 4th Respondent as the winner of the said primary.”

Per PAUL ADAMU GALINJE ,J.S.C ( Pp. 46-49, paras. C-A )