Dr Alex Otti & Anor V. Dr Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR DATTI YAHAYA, J.C.A. 

 This is a Motion filed by the applicants, on the 15th of July, 2016 praying for-1. An Order granting the Appellants/Applicants leave to appeal as interested persons against the final judgment of the Federal High Court Abuja Division, delivered on 27th June, 2016 in suit No. FHC/ABJ/CS/71/2016/FHC/UM/CS/94/2015 – Dr. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS.2. An Order deeming the Notice of Appeal already filed on the 1th day of July, 2016 against the said Judgment as properly filed and served, the appropriate filing fees thereto having been paid.If €¢Reliefs 1 and 2 above are granted:3. An Order by way of departure from the rules permitting the Appellants/ Applicants to make use of and rely on the record of appeal already transmitted by the 2nd and 3rd Respondents to this Honorable Court in Appeal No. CA/A/390/2016.4. An Order granting an accelerated hearing of this appeal and also abridging the time for filing of briefs of arguments in this appeal.The grounds for the application are: -i. The Appellants/Applicants were not parties nor were they served with the originating and other processes which led to the judgment of the Federal High Court, Abuja delivered on 27th June, 2016 in Suit No. FHC/ABJ/CS/71/2016ii. By the judgment of the Federal High Court, Abuja Division delivered on 27thJune 2016 in Suit No. FHC/ABJ/CS/71/2016 (formerly FHC/UM/CS/94/2015), the Court below after rightly holding that the 3rd Respondent as the PDP candidate for the Abia State Governorship election held on 11 April 2015 was disqualified from contesting the said election made consequential orders to the effect that the 1st Respondent was the winner of the PDP primary election held on 8th December 2014 and thereby entitled to be returned as the winner of the Governorship election.

iii. The disqualification of the 3rd Respondent herein to contest the said Abia State Governorship election held on 11 April 2015 arose from the false information contained in the form CF001 submitted by the 2nd and 3rd Respondents to INECiv. The disqualification to contest the Abia State Governorship election under Section 31(6) of the Electoral Act 2010, (as amended) contemplates that the 2nd Respondent who sponsored the disqualified candidate, the 3rd Respondent, did not have any legitimate candidate in the Abia State Governorship election held on 11 April 2015.

v. The appellants/Applicants who were adjudged second in the Abia State Governorship election are desirous of appealing against the judgment of the lower court containing consequential orders that directly affects them.

vi. The Appellants/Applicants are entitled under Section 243(1)(a) of the 1999 Constitution (as Amended) to seek the leave of this Honourable Court to appeal as persons interested against the judgment o the lower court dated 27th June 2016.vii. The 2nd and 3rd Respondents have appealed against the said judgment of the lower court.viii. The Record of Appeal compiled by the 2nd and 3rd Respondents in Appeal No. CA/A/390/2016 have since been transmitted and entered into this Honourable Court.The application is supported by a 26 – paragraphed affidavit, a 10 – paragraphed affidavit of urgency, a further 8 – paragraphed Affidavit in support with an Exhibit marked Exhibit MAM 1 (proposed Notice and grounds of appeal and another 21 – paragraphed Further Affidavit in support of the application.The 1st, 2nd 3rd and 5th respondents in opposing the application, filed counter-affidavits. The 1st and 2nd respondents filed their respective courter-affidavits on the 22nd of July, 2016.

The 3rd respondent filed 10 – paragraphed counter-affidavit, on the 22nd of July 2016, also. The 5th respondent filed a 27 – paragraphed counter-affidavit. The 3rd respondent filed a further counter-affidavit on 1/8/16.The facts are that the 2nd respondent herein, (PDP) held its primary election, in order to nominate and sponsor a candidate, to stand election as a Governor of Abia State on the 8th of December, 2014. The third respondent emerged the winner at the primary election and was nominated by his party, the PDP. Thereafter, the election into the office of Governor, Abia State was held and he won. After series of litigations on Election Petition, the Supreme Court declared the third respondent as the duly elected Governor of Abia state. The 1st applicant herein, was the Petitioner leading to the Supreme Court case.

In the meantime, the first respondent herein, came second, in the PDP primary election above stated. He filed an action at the Federal High Court (the trial court), to challenge the nomination of the third respondent as the candidate of the second respondent, at the primary election as the plaintiff. The relevant declarations and Orders sought in the Amended Originating Summons, by the first respondent are:

-“{1)A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial primary election for Abia State conducted by the Peoples Democratic Party and her officers on the 8th day of December 2014 which the plaintiff, Dr. Okezie Ikpeazu (the 2nd Defendant) and others participated as aspirants.(2) A declaration that Dr. Okezie Ikpeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8/12/2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary Election conducted…….

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic Party Primary Election….. are wasted votes, null, void … Dr. Okezie Ikpeazu …… is not qualified to be nominated or participate in the said Primary Election.(4) An order declaring the plaintiff (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic party Primary Election for aspirants conducted by the Peoples Democratic Party on 8/12/14 …”(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast … it is the plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the gubernatorial election in Abia …” (Underscores for emphasis)On the 26th of July 2016, we ordered interested parties to file written addresses. The applicants filed their Written Address on the 28th of July 2016. The 1st respondent filed his Written Address on the 1/8/16. The 2nd respondent filed its Written Address on the 2/8/16. The 3rd respondent filed his written address on the 1/8/16. The 5th respondent filed his written address on the 1/8/16. The 4th respondent has not filed any address.In the applicants’ written address, two issues were identified for resolution. They are-1. Whether having regard to the continually vested right as participant and second highest vote winner at the election, held in April, 2015 into office of Governor of Abia State, the Appellants/applicants have disclosed arguable grievance to be granted leave to appeal as persons interested against the identified portion of the judgment of the trial court, on the grounds and for the reliefs set out in the Proposed Notice of Appeal (Exhibit MAM 1)2. Whether having regards to the circumstances of this case, this Honourable court ought not to exercise its discretion in favour of the grant of the other prayers endorsed on the motion paper.For the 1st respondent, one sole issue was identified. It is-1. Whether the applicants have disclosed by their Motion, any right or interest of theirs, affected by the Judgment of the Federal High Court in suit No. FHC/ABJ/CS/71/2016 Between Dr. Sampson Uchechukwu Ogah Vs. Dr. Okezie Victor Ikpeazu & Ors to warrant the grant of leave to appeal as persons interested by this Honourable Court against the said Judgment.The 2nd Respondent identified four issues, viz; -1. Whether this application as disclosed on the Motion Paper does not constitute an abuse of the process of the Court of Appeal and ought to be dismissed.2. Whether the Applicants are not barred from bringing this application by the doctrine of res judicata.3. Whether the Applicants reliefs are not statute-barred and ought to be dismissed.4. Whether the Applicants who are not members of the 2nd Respondent (PDP) have made out a case entitling them to the reliefs sought in this application having regard to the nature of the dispute the subject matter of the appeal.The 3rd respondent identified a single issue for determination, to be-Having regard to the entire facts and circumstances of this appeal, whether this Honourable Court would not dismiss the applicants’ Motion on Notice dated 14th July, 2016.The three issues identified by the 5th respondent are; –

A. Having regard to the facts of this case, do the applicants have sufficient interest in the subject matter of the Appeal to qualify them as persons interested in this appeal to merit the grant of the leave sought in this application?B. Whether the Applicants herein have the Locus Standi to sue in the subject matter leading to this Appeal i.e. Suit countering or challenging the outcome of the Gubernatorial Primary Election for the 2nd Respondent (PDP).C. Whether this Application by the Applicants herein is not an abuse of Court process in the circumstances of this case.In my view, the sole issue raised by the 3rd respondent is sufficient to resolve the issue but I re-couch it to read: -Having regard to the entire facts, the law and circumstances of this Appeal, whether this Honourable Court would not dismiss the Applicant’s Motion on Notice filed on the 15th of July 2016.

I have carefully studied all the processes filed by all the parties in this application, to enable me arrive at a just decision.As a preliminary point, although the 2nd respondent has made it a substantive issue, reference was made to the Suit Number and the parties in Exhibit A, the judgment of the Federal High Court (the trial Court) attached to this application and it was stated that this was different from the parties reflected in this Motion filed by the applicants, for leave to appeal. The applicants have been reflected as “Appellants” in the Motion for leave to appeal and that this is a fundamental vice bordering on abuse of the process of this Court. ADEH VS. PDP (2016) 7 NWLR (Pt. 1510) 153 at 173 – 174 and PDP VS. INEC (2012) 13 NWLR (Pt. 1317) 215 at 236- 233 were referred to.

I agree that the applicants have added their names as appellants in their Motion seeking leave to appeal, names that are not reflected in the Suit before the trial court. They have not been granted leave to appeal yet and they cannot reflect their names as appellants in the originating Motion. However, this has not misled the respondents on any way. It is one of those surplage mistakes made by counsel that are pardonable and which should not be visited in their clients. I waive whatever irregularity there is and hold that the process is complete and is not an abuse of the process of this Court.The applicants have submitted in the written address, that they have an interest in the judgment of the trial court dated the 27th of June 2016 as they have by their affidavits, demonstrated the nature of their legal interest and that they were not aware of the Suit until judgment was delivered. The proposed notice of appeal was referred to as showing the applicants’ grievances with the consequential orders made in the judgment, pursuant to section 31(5) of the Electoral Act 2010 as amended, for giving false information in the document submitted along with Form CF001 by the 2nd and 3rd respondents. Having obtained the second highest votes at the election, they aver that they have an interest which has been affected by the judgment, especially, the consequential orders. They predicate their application on section 243(1) of the 1999 Constitution as amended. The cases of FUNDUK ENGINEERING L TO. VS. MCARTHUR IN RE MADAKI (1990) 4 NWLR (Pt. 143) 266 at 267 and ICAN V. UNEGBU (2012) 2 NWLR (Pt. 1284) 216 at 233 were cited in support of their contention that “a person having an interest” is synonymous with a person aggrieved, one against whom a decision has been pronounced which has wrongfully affected his title to something.Learned senior counsel for the applicants placed reliance on the cases of LABOUR PARTY VS. INEC (2009) 6 NWLR (Pt. 1137) 315 and ISIAQ VS. SONIYI (2009) ALL FWLR (Pt. 498) 347 at 384, to submit that where a candidate has been adjudged as lacking qualification to contest an election, the election will be nullified and another fresh election ordered, without that candidate and his political party that sponsored him. But that if the votes of the disqualified candidate were wasted, then the candidate next to the disqualified candidate at that election (and not his co-aspirant at the primary election) will be entitled to be returned – ATAI VS. DANGANA (2012) VOL. 1 INEC LAW REPORT at page 523.

Since the judgment of the trial court has returned the 1st respondent as the winner of the election, the applicants have an interest which has been affected, they argued, especially as the 1st respondent did not take part in the election proper but the applicants had done so and had come second in the contest. Counsel argued also that since the PDP had no qualified candidate at the election, the law regards that it had no candidate at the election.Learned senior counsel for the applicants also submitted that the applicants were not aware of the pending suit until judgment was delivered. He argued that whether they were aware or not, since the judgment is in rem, failure to attempt to join it, is immaterial.

On the judgment of IKPEAZU VS. OTTI (2016) 8 NWLR (Pt. 1513) 38, counsel argued that it could not be a bar to this application, since the subject matters are different and unrelated. Whereas in the Supreme Court the case of IKPEAZU VS. OTTI the issue was who, between the two contending parties, scored the majority of lawful votes, here, the issue is who is supposed to step into the shoes of the disqualified PDP candidate – the 3rd respondent.

On the issue of legal interest, the 1st respondent, in the written address, submitted that the applicants have failed to disclose what interest or rights belonging to them, have been affected by the Orders of the trial court. Since they belong to APGA political party, by their admission, and not PDP, they have no interest whatever in the subject matter of the Suit which is an intra-party matter – section 87(a) of the Electoral Act 2010 as amended. Their scoring second highest votes in the election is of no moment it was argued, since the Supreme Court had finally determined that issue.Learned counsel for the 1st respondent argued that since the Suit before the trial court was an intra-party, pre-election matter, not the conduct of election, the applicants do not have interest enough to warrant them to appeal here as that would alter the nature of the case – NNAOGU VS. ATUMA (2013) 9 NWLR (Pt. 1358) 113 at 134; HON. ANTHONIA TABANGSI-OKOYE VS. HON. LYNDA CHUBA & 4 ORS in CA/A/416A/2015 delivered on 22/1/16, and ENYIBROS FOODS PROCESSING CO. LTD VS. NDIC (2007) 9 NWLR (Pt. 1039) 216 at 251 which decided that “a person having interest in the matter” is one who could have been joined as a party in the Suit at the trial court. He urged us to hold that the applicants had no legal interest in the judgment of the lower court.For the 2nd respondent, it was submitted on the authority of E.F.P CO. LTD VS. NDIC (2007) 9 NWLR (Pt. 1039) 216 at 251, that the applicants could qualify as persons interested only if they could have been joined as parties to the Suit, likely to be aggrieved by the proceedings. It was then argued that as the applicants were not aspirants under the platform of the 2nd respondent, who can bring a pre-election suit over the candidacy of the 3rd respondent, they do not have any right capable of being affected by the judgment of the trial court and so have no legally cognizable interest in this appeal. Learned counsel emphasised that the subject matter of the suit at the trial court, was as to who between the 1st, 3rd and 5th respondents, should be the candidate of the 2nd respondent, and this being an intraparty dispute from primary election, which did not concern the applicants, they could not be parties interested- NWAOGU VS. ATUMA (SUPRA) at 1038 – 1039.Further, that the reliefs claimed in the proposed Notice of appeal, are post election reliefs, new reliefs that are claimed a long time after the election SALIM VS. CPC (2013) 6 NWLR (Pt. 1351) 501 at 523 – 524.

This, he argued, is an attempt to convert the nature of the case which is not allowed. In that vein he urged us to dismiss the application.Learned senior counsel for the third respondent attacked the competence of the Motion because by section 243(1)(a) and (b) of the 1999 Constitution, and Order 7 rule 4 of the Court of Appeal Rules 2011, the application should have been made in the first instance at the trial court. Since this was not done, and the application was filed in this court firstly, it is incompetent, especially as the affidavits in support have not shown any extreme or special circumstances. He urged us to refuse to grant any indulgence to the applicants – WILLIAMS VS. HOPE RISING (1982) 2 SC 145 At 153 AND OLOWOKERE VS. AFICAN NEWS PAPERS LTD (1993) 5 NWLR (Pt. 295) 583 at 596, 601. He argued that the application should have been filed before the record was transmitted to this court – OGUNREMU VS. DADA (1962) 2 SCNLR 417 and since conditions precedent have not been fulfilled, the application should be dismissed.On the legal right of the applicants to bring this application, learned senior counsel submitted along the same lines with the other respondents. He argued that according to the trial court’s judgment, the dispute before it, bordered on the qualification of the respondent to participate in the PDP primary elections and was instituted by an aspirant. He submitted further, that the case of EHI VS. TINUBU (2011) LPELR- 4737, relied upon by the applicants to ground their status as interested parties, despite the concluded case of IKPEAZU VS. OTTI (supra), has confirmed that when reliefs are the same in two different matters by the same party, then the later is abusive. He then pointed out, that there is no difference between the reliefs sought in their petition at the Tribunal and the ones sought in this proposed Notice of Appeal. The reliefs seek that the applicants be “sworn into office forthwith as Governor of Abia State” or alternatively, a “fresh election” be held, reliefs that are the same as items (iv), (v) and (vi) as seen at pages 70 – 71 of the Supreme Court judgment in OTTI V. IKPEAZU (supra). The case of OKORCHA V. PDP (2014) 7 NWLR (Pt. 1406) 213 was cited to show that a party who litigated on an election petition up to Supreme Court and lost cannot, by reason of a Ruling of a lower court revisit the issue. UDE V. OJECHIMI (1995) 8 NWLR (Pt. 412) 152 at 169 was also referred to on this point. Since the applicants have conceded, in their grounds and notice of appeal that it is the respondent that had the right to institute the action before the trial court, they cannot claim to have the same right, by bringing this application, he argued. Since the issue at the trial court was one of pre-election and party primaries of the PDP, applicants could not have the legal right to maintain claims before the trial court, they thus cannot be persons interested in the subject matter at the trial court as paragraph 9 of the affidavit in support deposed to, he submitted.

He argued that the appellants had not disclosed any interest known to law, or what grievance they had, which directly and personally affected them. He placed reliance on NWAOGU VS. ATUMA (supra); SHINKAFI & ANR. VS. YARI & 2 ORS (2016) 7 NWLR (Pt. 1511) 340 at 415 – 416; CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1072) 526 at 543. In his oral address, counsel submitted that an appeal is not a market where everyone will rush to, to display wares. He also submitted that the reliefs of the applicants are not grantable.Learned senior counsel for the 3rd respondents also submitted that the applicants stood by, watching the outcome of the case, allowing others to fight their battle, and are now realizing that they have interest, a situation which cannot avail them – OSIEC VS. AC (2011) ALL FWLR (Pt. 567) 622 at 674. He urged us to dismiss the application.In their Reply to the 3rd respondent’s brief, the applicants submitted that the argument of the 3rd respondent on failure to bring the application in the first instance to the trial court, is misconceived since the appeal had already been entered, to which senior counsel for the 3rd respondent countered in his oral address before us, that the applicants have ample time to appeal and transmit record, and could still bring the application before the trial court, before the record was transmitted.

On the argument of the 3rd respondent that the reliefs are not grantable, the reply of the applicants is that the reliefs are grantable since they are not outside the record and evidence adduced before the trial court.Mr. Idoko, learned counsel for the 5th respondents argued in the main, also along the lines of the other respondents. He submitted that the subject matter of a suit must be examined and the reliefs identified, before it can be decided that a party has interest in the claim and the pronouncement of the court, has prejudicially affected his interest, or has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something – NWAOGU VS. ATUMA & ORS SC. 10 (2012), page 1. Per Mohammed JSC as he was. He then submitted that all the reliefs sought at the trial court, pertain to the primary election of PDP held on the 8/12/14 and that the Orders issued by the trial court bear on the rightful candidate of the 2nd respondent in the said primary election. As such, the applicants have not disclosed any legally cognizable interest in that suit, to warrant the grant of the application. In the Reply to the 5th respondent’s address, the applicants argued that they are not challenging the conduct, outcome or declaration in the primary election of the 2nd respondent. The 4th respondent did not file a written address.Now, on the attack of the competence of this application, by Mr. Olanipekun SAN for the 3rd respondent, it is correct, that by a combined reading of section 243(a) and (b) of the 1999 Constitution as amended, and Order 7 rule 4 of this Court’s Rules 2011, this application should have been made in the first instance, at the trial court, before it can be brought in this court, unless special circumstances are shown why a departure was made.In OGUNREMI VS. DADA (supra), the Supreme Court held that before the transmission of record by an appellant/applicant, such applicant must first bring the application for leave to appeal as interested party, before the lower court. This clearly means, that if the record is not transmitted to this court from the lower court, the applicant must in the first instance, bring the application before the lower court which would still have the jurisdiction to entertain it.

But once the record is transmitted to this court from the lower court, and the appeal thus entered, the application which had not yet been brought, can only be brought before this court since the lower court would no longer have jurisdiction to entertain it. We take Judicial Notice of our processes. The record of appeal in Appeal No. CA/A/390/2016 was transmitted to this court on the 4th of July 242016. This application was filed on the 15th of July 2016, after the transmission of the record on Appeal No. CA/A/390/2016. Arguably, the record transmitted is not for the applicants as they are only praying to rely on that record. It is also instructive, that they are filing a separate appeal and are not praying to join the appeal of the appellants for obvious reasons. I also agree, that the applicants have been lethargic. The judgment of the trial court was delivered on the 27th of June 2016 and they admitted that on that date, the judgment was widely reported and they became aware of it “through the media”. They should have moved timeously, to file this application at the trial court, before the record was compiled and transmitted to this court on the 4th of July, 2016, a week after the delivery of the judgment. They did not do so.

They were tardy, but this is not enough a reason to knock them out on technicality. Since the record of appeal has been transmitted to this court, we regard this as special circumstances warranting the bringing of the application in the first instance, to this court. It is not incompetent.As seen earlier in this Ruling, the 1st, 2nd and 3rd declarations sought by the 1st respondent herein, as plaintiff in the Amended Originating summons, are all challenges on the eligibility and qualification of the 3rd respondent herein, Dr. Ikpeazu, to ”participate or take part or be nominated in the Gubernatorial PRIMARY ELECTION for Abia State conducted by the Peoples Democratic Party and her officers on the 8th day of December 2014…” So the challenge was as to the participation of Dr. Ikpeazu in the Primary Election conducted by his party, it was not yet a challenge as to his contesting the election even. The Order sought in (4) in the Amended Originating Summons, was a declaration that the 1st respondent herein, but the plaintiff in the Suit at the trial court, is the “aspirant” in the primary Election conducted by PDP on the 8/12/14. It is only prayer (5) that sought for an order that the 1st respondent herein was entitled to be nominated and is the nominated candidate of PDP to contest the gubernatorial election for Abia State. The entire gamut of the Suit was therefore on the participation, taking part and being nominated in the PRIMARY Election conducted by PDP on 8/12/14. This position is vindicated, by the judgment of the trial court, where at page 68 of the judgment (Exhibit A) the judge found that the Suit was a challenge on participation at primary election.The PDP guidelines are to the effect that payment of tax as and when due, is a ground for qualification or disqualification of a candidate for the PRIMARY ELECTION for the post of a Governor of Abia State – pages 62 – 63 of the judgment of the trial court (Exhibit A)So, the foundation and crux of the Suit before the trial court, is the qualification or disqualification to participate in the Gubernatorial Primary Election. It was a case of an aspirant challenging another aspirant (Dr. Ikpeazu) to participate in the Primary Election and to be nominated and sponsored for election for the post of Governor of Abia State, conducted by PDP. The trial judge reviewed the documents in issue and the PDP guidelines and came to the conclusion at page 87 of the judgment, that the 2nd defendant had no tax clearance certificate before the primary election.So the case before the trial court and the findings of the trial judge, were on participation of the 3rd respondent (Dr. Ikpeazu) to contest the primary election and be nominated.It is only section 87(9) of the Electoral Act 2010 as amended, that gives the courts the jurisdiction to entertain the issue of nomination and sponsorship of a candidate in a primary election, an issue which is a domestic affair of the political parties. Even in this respect, nobody has the locus to question participation, nomination and sponsorship of a candidate in a primary election, except an aspirant. Thus a member of the party conducting the primary election, who did not himself participate in the primaries, cannot question same. Likewise, a member of another party cannot question participation, nomination and sponsorship of the primaries of another party. See DALHATU VS. TURAKI (2003) 15 NWLR (Pt. 843) 310 and SHINKAFI VS. YARI (2016) 7 NWLR (Pt. 1511) 340 at 415 €“ 416 where the Supreme Court per Sanusi, JSC held that -“…if there are dispute(s) in the conduct of the primary election, only person who took part in the primary election is an aspirant within the meaning of section 87(9) of the Act.

That is to say, it is only an aspirant that has the locus standi to approach the court to seek redress …this precludes any person who though a member of the political party but did not participate at the primary election not to talk of any person who is even not a member of the said political party, as the present appellant who is a member of an entirely different political party. The appellant herein, therefore lacks the locus to complain in the manner a primary election of his adverse political party was conducted.He is merely a busy body… He will therefore have no grievance against the primary election …”In NWAOGU VS. ATUMA (supra) at page 1040 – 1041, Ngwuta JSC held -”In a contest as to who is the flag bearer of a political party in an election….. is essentially an internal wrangling within the party and a non-party member cannot be heard to complain against the nomination of a candidate to stand an election on the platform of a party to which he is not a member.”Locus standi is a rule that keeps off and away non-interested parties from litigations, and clogging the courts with unnecessary suits at the expense of justiceable cases. So, by section 87(9) of the Electoral Act 2010 as amended, the applicants had no locus standi, not being aspirants in PDP primary election, to challenge the participation and nomination of the 3rd respondent in the PDP primary election. It follows therefore, that the applicants also have no locus to appeal against the whole decision (as they have stated in the proposed Notice of appeal) of the trial court which pronounced, on the nomination and participation of the 3rd respondent in the PDP primary election conducted on the 8/12/14. See TAIWO VS. ADEGBORO (2011) 11 NWLR (Pt. 1259) 562 and AL-HASAN VS. ISHAKU (2016) 10 NWLR (Pt. 1520) 240. Once they lack the locus to maintain a challenge against the primary election, the applicants cannot have an interest recognizable in law.

The interest the applicants acquired, was to participate in the election, having been nominated. They participated and lost. They exercised a right of presenting an Election Petition and pursued it up to the Supreme Court where they lost again. The extent of their right had thus been extinguished. They cannot and have no interest in an intraparty matter, as to who should participate in the PDP primary elections.The applicant’s Reply on point of law to the 5th respondent’s address, argued that they are not challenging the conduct, outcome or declaration in the primary election conducted by the 2nd respondent. But they are, for particular (d) of ground I, ground II and its particulars (b) and (c) in the proposed Notice and grounds of appeal, are direct and unequivocal challenge to the qualification of the 3rd respondent to CONTEST the primary election conducted by PDP on the 8/12/14. They cannot do so.To qualify as parties having interest, the applicants had the onus to show the interest they have and how the judgment of the trial court had prejudicially affected that interest. They have not shown that a decision had been pronounced against them or have been wrongly deprived of something belonging to them. They do not posses any title which has been wrongly affected by the judgment. They have not won the election, which the judgment had wrongly deprived them of. They, therefore, do not have any interest in the judgment or sufficient legal grievance which was wrongly affected. They only have a general interest similar to what other candidates in other political parties have and that is not enough – CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1415) 385.The dispute at the trial court is one of participation in the PDP primaries and the resultant nomination. Non aspirants cannot challenge same in court, and so are not necessary parties to the case at the trial court. They are therefore not necessary or desirable parties on an appeal here and so do not qualify as persons having interest, pursuant to section 243 of the 1999 Constitution. It is for the 1st, 3rd and 5th respondents to slug it out, but certainly not the applicants. Therefore, it is immaterial, whether the applicants were aware of the pending Suit at the trial court or not. Even if they were aware, they could not be joined as they have no locus, and no interest sufficient, to participate in it.Mr. Olanipekun SAN for the 3rd respondent has argued that the applicants raised the issue of their interest in the supporting affidavit.Paragraphs 4, 9 and 10 of the affidavit in support of the application, contain the depositions as to the interest of the applicants in the subject matter of the Suit before the trial court.The law is clear. An applicant seeking to appeal as an interested party has to disclose his interest in the record of proceeding before the court, and not in an affidavit in support of the application. The reason is simple. The appeal would be determined on the record of appeal and not on affidavits and other extraneous material. See OMOTOSHO VS. ABDULLAHI (2008) 2 NWLR (Pt. 1072) 526, at 543, a judgment of this Court approved by the Supreme Court in CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1415) 385, at 414 – 415. In the instant application, the applicants have not transmitted record on their own. Their prayer 3 in the Motion under consideration, is that they be permitted to make use of and rely on the Record of appeal transmitted by the 2nd and 3rd respondents to this Court, in Appeal No. CA/A/390/2016. That prayer has not been granted yet, as it can only come after the substantive prayer for leave to appeal has been granted. So in effect, there is no record transmitted by the applicants upon which this court can discern their legal interest in the Suit at the trial court. They have not even taken the liberty to refer this Court to what page in the record transmitted by the appellant in CA/A/390/2016, their interest have been disclosed.

That being so, the applicants have not placed sufficient material before this court, for the discretion to be exercised judicially and judiciously on their behalf. They have thus not disclosed any sufficient interest as required by section 243(a) of the 1999 Constitution as amended.I have also looked at the reliefs sought for in the proposed Notice of Appeal initially filed on 15/7/16 and the proposed Notice of Appeal MAM 1 attached to the Appellants/Applicant’s further Affidavit in support of the Motion, deposed to on 21/7/16. The prayer common to both proposed notices, is that the 1st applicant/appellant should be sworn as the Governor of Abia State instead of the 1st respondent or alternatively, a fresh election to be conducted.The exercise amounts to an attempt to change the nature of the dispute from an intra-party, pre-election affair, to a postelection matter. This is not allowed – NWAOGU VS. ATUMA (supra) and IKECHUKWU VS. NWOYE (2015) 3 NWLR (Pt. 1446) 367 at 417 – 418.

The lone issue is thus resolved against the applicants.In sum, the applicants/appellants have not established any legal interest cognizable, to qualify as persons interested, to appeal the decision of the trial court. They have no locus standi and interest in the internal affairs of the 2nd respondent, to enable them appeal. They have not transmitted record of appeal where they are bound to show what interest they have in the case before the trial court. The application lacks merit and it is hereby dismissed with N50,000 costs to each respondent, except the 4th respondent.

Other Citations: (2016)LCN/8974(CA)