Whether a Political Party Can Challenge the Primary Election of Another Party

CASE TITLE: PDP v. INEC & ORS (2023) LPELR-59444(CA)

JUDGMENT DATE: 5TH JANUARY, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on electoral matters.

FACTS:

This is an appeal against the decision of the Federal High Court, Port Harcourt Judicial Division, sitting in Port Harcourt, Rivers State.

​There was suit no. FHC/PH/CS/152/2022 filed before the Federal High Court wherein the appellant sued the 2nd respondent, along with the 1st respondent. The suit of the appellant sought to prevent the 2nd respondent from nominating candidates elected from the primary elections conducted by the 2nd respondent on 26/06/2022, on the ground that the 1st respondent did not monitor the Ward Delegate Congresses conducted by the 2nd respondent on 18/05/2022. The 1st respondent also wanted the Court to prevent the 1st respondent from acting on the list of nominated candidates submitted to it by the 2nd respondent.

​The judgment in the suit was delivered on 11/11/2022. The trial Court nullified the primary elections conducted by the 2nd respondent in Rivers State, which affected the elected candidates of the appellant, who are also respondents in this appeal, but held that the appellant failed to prove its case against some of the defendants before it.

Dissatisfied with the judgment delivered by the trial Court, under the hand of A. T. Mohammed, J., the appellant filed an appeal in the Court of Appeal.

ISSUES:

The Court determined the appeal based on the issues raised suo motu by the Court thus:

“In view of the decision of this Court in Appeal Nos: CA/PH/480/2022 and CA/PH/481/2022, delivered on 29/11/2022, can it be said that the lower Court had jurisdiction over suit no. FHC/PH/CS/152/2022 filed before it and which led to Appeal No: CA/PH/567/2022 (i.e. whether a political party may challenge the nomination of candidates made by a rival political party, while complaining against INEC in its suit?”

DECISION/HELD:

In the final analysis, the Court allowed the appeal.

RATIOS:

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Whether a political party can challenge the primary election of another party
• “In CA/PH/481/2022, this Court held as follows: “In summary, no political party can in my view, assume the role and status of an “Aspirant” in order to litigate under SECTION 285(9) AND 14(a) (b) & (c) OF THE CONSTITUTION, 1999 (AS AMENDED) with respect to any alleged or perceived irregularities of another party’s primary election. Let me state further, that the new provision in Section 285(14)(a), (b) and in particular (c) was not intended by the Legislature to create a new cause of action in favor of the political parties to embark as it were on poaching into the outcome of other parties’ primaries so as to raise perceived issues of non-compliance with the provisions of the Electoral Act, supra or the applicable provisions of the Constitution, 1999 as amended and use it to drag INEC into the fray of partisan politics by seeking orders to compel INEC to disqualify the nominated candidates of an adverse party. My view remains that the said provision is still within the purview of the cause of action that enures the benefit of a political party whose candidate, although nominated at the party’s primary election was wrongly disqualified by INEC from being listed as the party’s fielded candidate for the elective office for which the candidate had won his party’s primary election to seek judicial redress In the Federal High Court.
• The legislative position and the judicial decision still remain that the choice of candidates for elective offices will be that of the political parties in line with ONUOHA V. OKAFOR (1983) 2 SCNLR 244, and all elections conducted in order to enable the political parties to make that choice, remain in my view, pre-election matters for the Federal High Court as is prescribed in Section 285(9) of the Constitution, 1999 as amended, that has jurisdiction to entertain actions by an ”aspirant” in the primary election of the political party. See DALHATU V. TURAKI (2003) 15 NWLR (Part 843) 310; AMAECHI V. INEC (2018) 7 NWLR (Part 1818) 245 and until after the general elections are held and results are declared or released, before political parties are entitled to file cases and petitions against one another in the regular elections’ tribunals.
• That is not permissible in all pre-election matters which are strictly domestic and internal affairs of the political parties. See the Court of Appeal decision in JIMOH V. OLAWOYE (2003) 10 NWLR (Part 828) 307 @ 343. To do otherwise will in my humble opinion gravely hamstrung the INEC in the performance of its statutory duty and role as the manager and presumed unbiased umpire of the electoral process, and unwittingly further drag the judiciary into INEC’s statutory supervisory and administrative role.
• The overall judicial attitude to pre-election cases is to try as much as possible to shield or remove the judiciary from the fray and to ensure that the hallowed bowels of the Courts are not invidiously converted by the political actors into an arena of inter-parties electoral contests. See the cases PDP & Anor. V. SYLVA & ANOR. (SUPRA), APC V. MOSES. (2021) 14 NWLR (PT. 1796) 278 Elections are intended and are better contested in the public arena and at the polls with the electorates as interested parties because all the legislative interventions and judicial decisions of the Courts are meant to instil sanity and decorum in the selection or nomination processes and to curb the tendency of acts of bare-faced impunity by the political parties.
• It is on the basis of the foregoing, that this Court can safely, order to protect, the judiciary from being further dragged into politics that it’s not well suited for, and preserve the electoral process from being muddled up in unending lawsuits by the political parties that I have come to the conclusion, that the Appellant, being one of the registered political parties in Nigeria, and not being an “aspirant” in the primaries conducted by the 2nd Respondent to nominate its candidates for the forthcoming general election into the State House of Assembly in Rivers State is in no way entitled to complain about the conduct of the primaries of 2nd Respondent, and to request the Court to make orders against the 1st Respondent to compel it to disqualify the 3rd to 13th Respondents, and I so hold. Consequently, this Court is not clothed with the requisite jurisdiction to hear and determine this appeal which has been determined on the basis of extant provisions of the Electoral Act, 2022 and the Constitution, 1999 as amended, the judicial notice of which we took pursuant to Section 122(2)(a) and (b) of the Evidence Act, 2011. See generally, the new compendium on electoral matters compiled by the Judicial Electoral Manual Committee of the Court of Appeal, June, 2022, 1st Edition page 53 and the Commentaries on Section 84(14) of the Electoral Act, 2022.
• In the light of the decision of this Court, the Appellant who is a registered political party in Nigeria and not being an “aspirant” in the context of the relevant provisions I had alluded to and who did not participate in the 2nd Respondent’s primary election conducted in Rivers State, lacks the locus standi to institute the action in the lower Court in order to nullify the candidates of the 2nd Respondent who emerged from the said primary election, and invariably it follows that the proceedings conducted by the trial Court were a nullity and the judgment delivered therein was without requisite jurisdiction, and applying the Supreme Court’s decision in EYESAN V. SANUSI (1984) 1 SCNLR 253, the appropriate order to make is to set aside the said judgment and strike out the suit on the prescriptions contained in the evergreen decision of the apex Court in MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587 @ 594.
• The said suit is hereby struck out as the lower Court lacks jurisdiction to entertain the Appellant’s suit. It’s my view that the instant appeal by the Notice of Appeal filed by the Appellant on 20th October, 2022 and reproduced on pages 281 to 286 was an invitation to this Court to exercise its undoubted Constitutional appellate jurisdiction to undertake as it were, a review of a judgment of the lower Court which is adjudged by the outcome of this appeal as a nullity and by this very fact, it constitutes a gross abuse of the appellate Court’s process and it is accordingly dismissed.
• The appeal filed in this Court having been founded on a null judgment is hereby dismissed as it constituted a gross abuse of the Court’s process on the authority of the Supreme Court’s decision in ARUBO V. AIYELERU (1993) 3 NWLR (Pt. 280) 126 @ 142-143 per His Lordship, the Hon. Justice Nnaemeka-Agu, JSC rtd. and late. (Bold font for emphasis). In effect, this Court had previously determined in both CA/PH/480/2022 and CA/PH/481/2022 that a political party is without locus standi to file a suit questioning the primary election and nomination of candidates by another political party.”
• CASE LAW – JUDICIAL PRECEDENT/STARE DECISIS – Whether the Court of Appeal is bound by its previous decisions and the exception(s); instance where the Court of Appeal will depart from its previous decision

“…In the case of Emecheta v. Ogueri [1998] 12 NWLR (Pt. 579) 502 at 518-519, this Court (per Onalaja, J. C. A.) stated concerning this Court dealing with its previous decision, as follows: “The last point raised the principle of stare decisis or judicial precedent. Unlike the Supreme Court, the Court of Appeal is bound by its previous decision, the only exception was by Lord Greene MR in Young v. Bristol Aeroplane (1944) KB 718. This was considered fully in the case of Dr. Olu Onagoruwa v. The State (1992) 5 NWLR (Pt. 244) at 713 wherein it was held as follows: “7. The Court of Appeal is bound by its own decisions unless overruled by the Supreme Court or the Court of Appeal itself, in a proper case, decides to overrule itself. (Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 at 188; Yusufu v. Egbe (1987) 2 NWLR (Pt. 80) 109 at 122 and Madike v. I.G.P. (1992) 3 NWLR (Pt. 227) 70 at 97 referred to.) Per Kalgo, J. C. A. at page 733, paras D-E ‘Therefore the only important issue is whether this Court is prepared to depart from its previous decision in Nwosu v. The State (supra).

This decision is by the rule of practice binding on this Court unless overruled by the Supreme Court or this Court in a proper case decides to overrule itself 8. A Court is entitled to over-rule its previous decision where: – (a) a strong case of error and injustice has been made; (b) it is established that the previous decision is erroneous and a vehicle of injustice. (Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 at 37 referred to.). 9. The Court of Appeal will not follow its previous decision where: (a) such a decision was given per incuriam whether such a decision is older or later in time; (b) such a decision though not expressly overruled cannot in its opinion stand with a decision of the Supreme Court 10.

The general rule is that a decision should be held to be given per incuriam only in cases where (a) the decision is given In ignorance or forgetfulness of some inconsistent statutory provision; or (b) the decision is given in ignorance or forgetfulness of some authority binding on the Court concerned; or (c) some part of the decision or some step in the reasoning on which It is based is found, on that account, to be demonstrably wrong. Ubaezonu, J.C.A. at page 731, paragraphs D- F: I am of the view that once the Court in Nwosu’s case (supra) came to the conclusion that: “there can be no doubt that a no-case ruling is a determination.” the next question is whether that determination amounts to a decision within Section 277(1) of the Constitution and therefore appealable. It is my humble view that the decision in Nwosu v. The State (supra) was given per incuriam the import of the words “decision” and “any determination” as contained in S.277(1) of the Constitution. Furthermore, the decision in Nwosu v. The State was given per incuriam the decision in Owonikoko v. The State (supra) which had been decided before the Nwosu’s case. The Court was not referred to Owonikoko’s case in Nwosu’s case.

I am not sure that if the attention of the Court in Nwosu’s case was drawn to Owonikoko’s case the decision in Nwosu’s case would have been the same. 11. Where the Court of Appeal is faced with conflicting decisions binding on it there are three schools of thought as to what that Court could do; for the Court of Appeal, the school of thought that applies is the one which postulates that the Court is entitled and bound to decide which of the conflicting decisions it would follow. 12.

One must appreciate that since the Court of Appeal sits in seven divisions in the country, there is the possibility of a decision delivered in one division conflicting with the decision in another division.” See further Chief Munalayefa Aseimo v. Chief Tari Abraham (1994) 8 NWLR (Pt. 361) 191 at 223 C.A” (Bold font for emphasis). See Adekanye v. Comptroller of Prisons [2000] 12 NWLR (Pt. 682) 563 at 572-573 (per Sanusi, J. C. A.); Mshelia, J. C. A., in the case of Onward Ent Ltd. v. MV “Matrix” (2010] 2 NWLR (Pt. 1179) 530 at 556 and the case of CBN V. Atana [2022] 3 NWLR (Pt. 1818) 509 at 518-519 (per Daniel-Kalio, J. C. A.).”

• JUDGMENT AND ORDER – PER INCURIAM – What constitutes a judgment given per incuriam

“The next question is – what is per incuriam? ‘When is a judgment said to be given per incuriam’? In Morelle Ltd. v. Wakeling (1955) 1 All E.R. 708 at 718 Evershed M.R. said that the phrase means that:- “As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned; so that in such case some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.”

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY – Whether a political party can challenge the primary election of another party

“…To answer the question posed by this Court, the appellant did not have locus standi to file the suit it filed before the lower Court at the time it did. This Court having taken several decisions on the point that a political party cannot sue another political party on the nomination of its candidate or outcome of its primary election, this Court cannot depart from or has no reason or purpose to depart from those decisions, including the decisions in CA/PH/480/2022 and CA/PH/481/2022.”