Whether the Determination of the Delegates to Vote at the Primary Election of a Political Party Is Justiciable

CASE TITLE: INYANG & ORS v. INEC & ORS (2022) LPELR-59081(CA)

JUDGMENT DATE: 7TH DECEMBER, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the justiciability of internal/domestic affairs of a political party.

FACTS:

This appeal emanated from the Federal High Court.

The three Appellants are members of the Peoples Democratic Party (PDP), the 2nd Respondent herein. They are PDP Ward Chairmen for various Wards in Akwa Ibom State. By virtue of their position as Ward Chairmen, they are, by the Constitution of the Peoples Democratic Party, supposed to be “statutory delegates” who can vote at the primary elections of the 2nd Respondent. Preparatory to the primary elections of the 2nd Respondent in Akwa Ibom State which took place in May 2022, the 2nd Respondent issued a Press Statement to the effect that pursuant to Section 84 (8) of the Electoral Act, 2022, only those elected as delegates for the primary elections shall be eligible to vote at the primary elections. The 2nd Respondent proceeded and held its primary elections and the Appellants, who contend that they were eligible to vote by virtue of being “statutory delegates” under the 2nd Respondent’s Constitution, did not vote at the said primary elections.

The Appellants, contending that they had been disenfranchised, commenced an action before the Federal High Court in a representative capacity, for themselves and as representing all other “statutory delegates” of the Peoples Democratic Party in Akwa Ibom State who are not opposed to the suit. By their Amended Originating Summons in SUIT NO. FHC/ABJ/CS/750/2022: MR. JEREMIAH OTU INYANG & ORS vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS., the Appellants presented the following questions for determination:

“1. Whether by a proper construction and interpretation of the provisions of Section 84 (8) of the Electoral Act 2022, the Plaintiffs and others herein referred to as ‘statutory delegates’ of the 2nd Defendant are excluded from voting in a primary election of the 2nd Defendant.

2. Whether having regard to the combined provisions of Section 84 (8) of the Electoral Act, 2022, Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant; the 2nd Defendant can lawfully conduct indirect primary elections during the State Congress, for the election of candidates of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May 25th, 2022 in Akwa Ibom State and monitored by the 1st Defendant, without the requisite quorum of democratically elected party delegates.

3. Whether the Primary elections of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022, and Governorship held on Wednesday May 25th, 2022 in Akwa Ibom having been conducted in breach of Section 84 (8) of the Electoral Act 2022 and Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant are lawful.

4. Whether by the provisions of Section 84 (13) of the Electoral Act 2022, the 2nd Defendant having failed to comply with the provisions of Section 84 (8) of the Electoral Act 2022 and Sections 25 (2), (4), (5), (6), (7) of the Constitution of the 2nd Defendant, its candidates for election into the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022, and Governorship held on Wednesday May 25th, 2022 can be included in the General election by the 1st Defendant for all the particular positions in issue.”

Upon the determination of the said questions, the Appellants claimed the following reliefs:

“1. A Declaration of this Honourable Court that by the combined provisions of Sections 83 (3), 84 (8) of the Electoral Act, Articles 25; Part 10, Article 6 of the Constitution of the 2nd Defendant; the 2nd Defendant cannot lawfully conduct State Congress and Primary Election monitored by the 1st Defendant without the requisite quorum of democratically elected statutory and ad-hoc delegates.

2. A Declaration of this Honourable Court that by a proper interpretation of the provisions of Section 84 (8) of the Electoral Act, 2022, Statutory delegates of the 2nd Defendant who are democratically elected officials of the 2nd Defendant whose functions include being delegates to the State Congress are not excluded from voting in any primary election of the 2nd Defendant.

3. A Declaration of this Honourable Court that from the Primary elections of the 2nd Defendant for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022, Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May, 25th, 2022 in Akwa Ibom State of Nigeria having been conducted in breach of the Electoral Act 2022 and the Constitution of the 2nd Defendant by the disenfranchisement of the statutory delegates of the 2nd Defendant are defective, wrongful, illegal, null and void and of no legal effect whatsoever.

4. A Declaration of this Honourable Court that the 2nd Defendant has failed to comply with the provisions of the Electoral Act and the Constitution of the 2nd Defendant, in the conduct of the Primary election for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022 and Governorship held on Wednesday May 25th, 2022 the 2nd Defendant’s candidates that emerged from the said Primary elections shall not be included in the General election for the particular positions in the issue.

5. An order of this Honourable Court restraining the 1st Defendant from accepting any list whatsoever of candidates purportedly nominated from the 2nd Defendant’s Primary elections for the State House of Assembly and the House of Representatives held on Sunday, May 22nd, 2022; Senate held on Monday, May 23rd, 2022 and Governorship held on Wednesday May 25th, 2022.”

It is evident from the reliefs claimed by the Appellants, especially reliefs 3, 4 and 5 that the Appellants sought a declaration that the primary elections of the 2nd Respondent in Akwa Ibom State were conducted in breach of the Electoral Act, 2022 and the 2nd Respondent’s Constitution and therefore defective, wrongful, illegal, null and void and of no legal effect whatsoever. They consequently sought that the candidates who emerged from the said primary elections should not be included in the general elections and that the 1st Respondent, the Independent National Electoral Commission, should not accept any list of candidates emerging from the said primary elections.

The 2nd Respondent as well as the 3rd-5th Respondents filed preliminary objections challenging the competence of the action. The trial Court after hearing learned counsel on the processes filed upheld the preliminary objections, conclusively holding that the Appellants’ action was non-justiciable and that the Appellants do not have the requisite locus standi to maintain the action.

The Appellants were dissatisfied with the decision of the trial Court and appealed against the same at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal based on the following issues formulated by the appellant:

I. Was the learned trial judge right in holding that the appellant’s suit was not justiciable and that it borders on the internal/domestic affairs of the 2nd respondent?

II. Was the learned trial judge right in holding that the appellants lacked the locus standi to institute their suit on the grounds that they were not aspirants at the primary?

DECISION/HELD:

The appeal was dismissed.

RATIOS:

• ACTION – JUSTICIABLE MATTER: What is a justiciable matter
• ACTION – LOCUS STANDI: What a party must show to establish locus standi
• ACTION – LOCUS STANDI: Whether a plaintiff has the locus standi to sue in respect of a cause of action that is not justiciable
• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Whether the determination of the delegates to vote at the primary election of a political party is justiciable
• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Position of the law on locus standi to institute an action challenging the conduct of political party primaries