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Prof. Onyebuchi Chukwu V. Peoples Democratic Party (PDP) & Ors (2016) LLJR-CA

Prof. Onyebuchi Chukwu V. Peoples Democratic Party (PDP) & Ors (2016)

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EMMANUEL AKOMAYE AGIM, J.C.A.

Dissatisfied with the nomination of the 3rd respondent as the 1st respondent’s candidate for the 2015 general election of Governor of Ebonyi, the appellant on 28-1-2015 filed an originating summons commencing Suit No. FHC/AI/CS/1/2015 in the Federal High Court of Nigeria at Abakaliki against the respondents seeking the determination of the following questions
1. Whether the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, is within the exclusive domain of Section 87 of the Electoral Act 2010 as amended and any guidelines issued by a political party for the conduct of a primaries.
2. Whether the 2nd Defendant is not bound to act on a candidate nominated by the 1st Defendant for the purpose of the general elections when such a candidate was elected in violation of the electoral guidelines established by the 1st Defendant.
3. Whether on the facts of this case, the plaintiff earned a right to participate in the party’s primaries

conducted by the 1st Defendant for the purpose of choosing the party’s candidate in the gubernatorial general election scheduled in the year 2015 with regard to Ebonyi State.
4. Whether non elected delegates who are also not accepted by all those interested in the gubernatorial election primaries are entitled to elect or produce a gubernatorial candidate for and behalf of the 1st Defendant.
5. Whether this Honourable Court can annul/void the process which produced the 3rd Defendant as the Ebonyi State gubernatorial candidate of the 1st Defendant And
6. Whether this Honourable Court can by an order of injunction direct the 2nd defendant to rectify the list of governorship candidates by expunging the name of the 3rd defendant as the Governorship candidate of the 1st defendant pending the outcome of fresh primaries.”

The appellant claimed for the following reliefs:-
1. A declaration that the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electorial Act 2010 and the Constitution of the Federal Republic of Nigeria 1999 is within the exclusive domain of Section 87 of the Electoral Act

2010 as amended and any guidelines issued by a political party for the conduct of a primaries.
2. A declaration that the 2nd defendant is not bound to act on a candidate nominated by the 1st defendant for the purpose of the general elections when such a candidate was elected in violation of the electoral guidelines established by the 1st defendant.
3. A declaration that on the facts of this case the plaintiff earned a right to participate in the party’s primaries conducted by the 1st defendant for the purpose of choosing the party’s candidate in the gubernatorial general election scheduled in the year 2015 with regard to Ebonyi State
4. A declaration that non elected delegates who are also not accepted by all those interested in the gubernatorial elections are not entitled to produce a gubernatorial candidate for and on behalf of the 1st defendant.
5. An Order of this Honourable Court annulling/voiding the process which produced the 3rd defendant as the Ebonyi State gubernatorial candidate for the 2015 elections.
6. An Order of this Honourable Court granting an order of injunction directing the 2nd defendant to rectify the list of

governorship candidates by expunging the name of the 3rd defendant as the Governorship candidate of the 1st defendant pending the outcome of fresh primaries.”

The originating summons was supported by an affidavit of 5 paragraphs. Each respondent filed a counter affidavit to the affidavit in support of the originating summons. The plaintiff filed further affidavits in response to the 1st and 2nd respondent’s counter affidavit.

On 24-2-2015, the 1st respondent filed a motion on notice praying for an order striking out the appellant’s suit on the grounds-
(a) That the Court lacks the jurisdiction to hear and determine same;
(b) That on the basis of the facts of the suit as presented in the plaintiffs affidavit, the originating summons proceeding is wrong as the suit should have been commenced by way of a writ of summons;
(c) That the plaintiff’s case is non-juristic in that it falls squarely within the domestic affairs of the 1stÂ defendant;
(d) That the suit is caught by the doctrine of res judicata and that it constitute an abuse of Court process to relitigate the same issue already decided in Suit No. FHC/ABJ/CS/830/2014;

(e)Â That the plaintiff’s lack the necessary competence to bring this action, in that:
(i) the plaintiff was not an aspirant in the Peoples Democratic Party (PDP) Special Ward Congress held in Ebonyi State on the 1st day of November, 2014; and
(ii) having withdrawn from the contest, to wit the PDP gubernatorial primary for Ebonyi State on the 8thÂ day of December, 2014, the plaintiff cannot validly complain about the conduct of the said primary election.”

The motion is supported by an affidavit and a written address of same.
All parties filed final written addresses in respect of the originating summons. The 1stÂ respondent again argued the point of jurisdiction in its final written address.

On 7-7-2015 the trial Court rendered its judgment, struck out the suit, after holding that the appellant lacked the locus standi-
(i) to sue complaining about the 1-11-2014 ward congress election of ad hoc delegates for the special State Congress to nominate the Governorship candidate of the 1st defendant because he did not contest for the position of delegate in the ward congress
(ii) to sue complaining about the conduct of the 8th November, 2014

primaries that nominated or selected the 3rd respondent as the Governorship candidate of the 1st respondent for the 2015 general election of Ebonyi State Governor.

Dissatisfied with this judgment, the appellant on 12-8-2015 commenced this appeal No.CA/E/385/2015 by filing a notice of appeal containing five grounds for the appeal.

All parties herein have filed, exchanged and adopted their briefs as follows- appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief, appellant’s reply briefs to 1st, 2nd and 3rd respondent’s briefs.

The appellant’s brief raised the following issues for determination-
1. Whether the Learned Trial Judge did not err in law when he declined jurisdiction to hear and determine the case without distinguishing the case of APGA v. Anyanwu (2014) 14 NWLR (Pt.1407) 541 Emenike v. P.D.P (2012) 12 NWLR (Pt.1315) (and other cases of their elk) having regard to the peculiar facts of the instant case (Distilled From Ground 1)
2. Whether the Learned Trial Judge was right in relying on the decision of the Federal High Court in Suit No. FHC/ABJ/CS/830/2014 – Barr. Leonard Nweke & Anor v. Peoples Democratic Party

& 4 others, having regard to the facts and circumstances of the instant case.
(Distilled from grounds 3 & 4)
3. Whether the Learned Trial Judge was mindful of the provisions of Section 87 of the Electoral Act 2010 (as amended) in deciding as he did (Distilled from grounds 2 & 5)”

The 1st respondent’s brief raised one issue for determination thusly- Whether, having regard to all circumstances of this matter, the judgment of the trial Court striking out the appellants suit for want of jurisdiction is liable to be sustained.”
The 2nd respondent’s brief raised the following issue for determination- “Whether the learned trial Judge was correct in striking out the suit on the premise that appellant who did not participate in the primary election cannot maintain the action or challenge the conduct of the Ward Congress.”
The 3rd respondents brief also raised one issue for determination as follows- “Whether, having regard to the facts disclosed in this case, the trial Court was right when it held that it did not have jurisdiction and proceeded to strike out the appellants action?

The appellant’s brief was settled by

Miss A. A. Nwodu, the 1st respondent’s brief was settled by Roy O.U. Nwaeze, the 2nd respondent’s brief was settled by Dr Onyechi Ikpeazu SAN and the 3rd respondent’s brief was settled by Arthur Obi Okafor SAN.

The 3rd respondent had also filed a notice of his intention to contend that the judgment of the trial Court be affirmed on grounds additional to those relied on in the judgment. The additional grounds are that the trial Court lacks the subject matter jurisdiction to entertain the suit and that suit No FHC/AI/CS/01/2015 was wrongly and incompetently commenced by originating summons.

The 2nd respondent raised and argued a preliminary objection in its brief on the grounds that-
(a) The Supreme Court had determined the issue of the Ebonyi State General Election of 2015, that the appeal presents an academic exercise there being no utilitarian value to be served by its determination one way or the other.
(b) Ground 1 of the Grounds of Appeal is vague and therefore incompetent.
(c) Ground 4 of the Grounds of Appeal does not come within the purview of issue 2 as couched and therefore no issue was distilled from Ground 4 of the Grounds

of Appeal.”

Let me consider the 3rd respondent’s objection to the hearing of this appeal, before I delve into the merit of the appeal, if need be.
The objection is based on three grounds captioned as contentions by the Learned SAN for the 2nd respondent.

I will start with first ground of objection that in view of the judgment of the Supreme Court in Nkwegwu v. Dave Umahi & Ors SC.1004/2015 delivered on 5-2-2016 that the 3rd respondent herein was “duly elected and returned as the Governor of Ebonyi State having won the majority of votes in the said election and having satisfied the relevant constitutional requirements,” this appeal is an academic exercise as its determination would yield no utilitarian value.
Learned SAN for the 2nd respondent has argued that the sponsorship of a person by a political party as its candidate for an election is a constitutional requirement, that sponsorship begins with the process culminating in the holding of primary election and selection of the candidate, that this Court cannot grant any order that has the effect of reopening the issue of whether the 3rd respondent’s candidature satisfied the

constitutional requirement of sponsorship by his political party.

Learned SAN for the 2nd respondent relied on the Supreme Court decisions in Abacha v. Fawehinmi (2006) 6 NWLR (Pt.660) 228, Ezeokafor v. Ezeilo (1999)9 NWLR (Pt.619) 369, Babatunde v. Olatunji (2000) 2 NWLR (Pt.646) 557 and N.B.C PLC v. Ubani (2014) 4 NWLR (Pt.1398) 421 at 449 to 450 on application of the doctrine of precedent in support of his above submission that this Court cannot make an order that has the effect of re-opening the matter of election of Governor of Ebonyi State which has been conclusively determined and pronounced upon by the Supreme Court in Nkwegwu v. Dave Umahi & ors (supra).

The Learned SAN also submitted that, even though the parties in Nkwegwu’s case are different from the parties in this case, especially as the appellant herein was not a party in Nkwegwu’s case, the Supreme Court judgment in that case would still bind the appellant and the world at large because it is a judgment in rem. For this submission, he relied on Oke v. Atoloye (1986) 17 NSC 163 at 178.

Relying on Badejo v. Federal Ministry of Education (1996) 8 NWLR (pt 464) 15 at 40 – 41 and

Adepoju v. Yinka (2012) 2 NWLR (Pt.1288) 567 at 584 he finally submitted that this appeal is a mere academic exercise as no tangible benefit can be conferred or gained by its determination, this Court cannot set aside the primary election which produced a person whom the Supreme has adjudged the winner of the general election, that the primary has not only been held, a candidate has not only emerged, but had indeed been sworn-in as the duly elected Governor.

Learned counsel for the appellant, Miss A. A. Nwodu has correctly restated the law that it is settled by a long line of Supreme Court decisions that time does not run against a pre-election case filed in the High Court before the holding of the elections and does not run against the jurisdiction of Courts under S. 87 (9) of the Electoral Act 2010 as amended to determine such case notwithstanding the holding of the election, the declaration of results, return of a candidate as elected and swearing in of such candidate into office. Learned Counsel correctly relied on Nobis – Elendu v. INEC & ORS (2015) LPELR – 25127 (SC), Jev & Anor v. Iyortom & Ors (2015) LPELR – 24420 (SC) and Eligwe v.

Okpokiri & Ors (2014) LPELR 24213 (SC). Therefore this appeal arising from a pre-election suit is not rendered spent and an academic exercise by the mere fact that the 2015 general election to the office of Governor of Ebonyi State held, that the 3rd respondent was declared winner, returned elected, sworn in as such Governor and has been occupying and running that office for almost a year now.

I do not agree with the submission of Learned SAN for the 2nd respondent that the decision of the Supreme Court on Nkwegwu v. Dave Umahi & Ors (supra) renders this appeal academic and should restrain this Court from determining the merit of this appeal. The decision in Nkwegwu’s case did not specifically decide the issue of whether 3rd respondent was sponsored by the 1st respondent in accordance with the Electoral Act 2010 as amended and the guidelines of the 1st respondent so as to qualify as having been sponsored by the 1st respondent. The argument of Learned SAN that the motion that he was validly sponsored by 1st respondent as its candidate is subsumed in the decision of the Supreme Court that he had satisfied the relevant constitutional requirement may

appear attractive, but it does not answer the question of whether that issue arose and was specifically decided by the Supreme Court. This is important because the case of the appellant in the originating summons is not that the 3rd respondent has not satisfied the requirements of the Constitution of the Federal Republic of Nigeria to qualify as a candidate to contest the general election to the office of Governor of Ebonyi State, his case is that he was unlawfully and unduly precluded from 8-12-2014 Ebonyi State gubernatorial primaries of the 1st respondent, that the procedure and conduct of the said primary election was contrary to the 1999 Constitution, Electoral Act 2010 as amended and the 1st respondent’s guidelines and that such primary election was incapable of producing the lawful candidate of the 1st respondent for the said election and that therefore the selection or nomination of the 3rd respondent as candidate of the 1st respondent for the said election is invalid, being a product of the said unlawful primary election. The questions raised for determination by the originating summons that commenced the suit leading to this appeal are not the

questions that were determined in Nkwegwu’s case.

There is no doubt that the decision of the Supreme Court in Nkwegwu’s case determined the status of the 2015 Ebonyi State Governorship election and the election of the 3rd respondent, but it did not determine the status of the 1st respondent’s primary election that produced him as the 1st respondent’s candidate for the election. So it cannot operate to prevent the determination of the question of the validity or invalidity of the 1st respondent’s 8-12-2014 gubernatorial primary election that produced the 3rd respondent as 1st respondent’s candidate for the election. This is in line with the preponderant judicial opinion that time does not run against a pre-election suit and the jurisdiction of the competent Court to determine it at any stage inspite of the election into office of the person whose nomination is challenged by the pre-election suit and inspite of post judicial pronouncements on the status of his election. See Ekagbara & Ors v. Ikpeazu & Ors (SC.504/2015 delivered on 22-1-2016). The decision of the Supreme Court in Imegwu v. Okolocha (2013) LPELR 19886 (SC) that the issue of

the validity of the primary election of Democratic Peoples Party that produced Eugene Uche Okolocha as its candidate had become academic after the holding of the election and the swearing in of the candidate who won the election appear to have been influenced by the fact that the party whose primary election was being challenged lost the general election and the question of who it presented as a candidate was no longer relevant. The Supreme Court per Akaahs JSC held that- “the success of this application and even the appeal will end up a physic victory for the applicant because Hon. Ossai Nicholas Ossai of the Peoples Democratic Party who was declared the winner of the election for the Ndokwa/Ukwuani Federal Constituency seat in the House of Representatives contested the election against Eugene Uche Okolocha, the 3rd respondent who was sponsored by the Democratic Peoples Party (DPP). So even if the DPP wrongly substituted the applicant with 3rd respondent no Court will order that the applicant was a candidate of the election or was wrongly excluded from the election with a view to nullifying the election won by the candidate of the PDP.”

In our present

case the election was won by the Peoples Democratic Party. Its candidate for the election was 3rd respondent. The appellant who is also a member of the same party, who was entitled to participate in the 8-12-2014 primary election that nominated 3rd respondent as 1st respondent’s candidate and who claims to have been unlawfully excluded from participating in the said primary election, wants to exercise his right to participate in the said primaries to contest for nomination as a candidate of the 1st respondent for the election of Governor of Ebonyi State.

Learned SAN for the 2nd respondent has highlighted the effects of each of the reliefs sought for by the appellant in his originating summons. He summed up that “from its practical perspective, the case of the appellant although a pre-election matter, will have the effect, if it succeeds, of obliterating the return made at an election since the victor at the election will have to step down and then proceed to renew the process of a primary election.” Although, Learned SAN has cautioned that this is not the real essence of his preliminary objection, but it has exposed another situation that render the

appellant’s suit that has led to this appeal and therefore this appeal is an academic exercise.

The two injunctive reliefs sought for are incapable of enforcement. At the risk of repetition I repeat the exact texts of those reliefs here-
5. An Order of this Honourable Court annulling/voiding the process which produced the 3rd defendant as the Ebonyi State gubernatorial candidate for the 2015 elections.
6. An Order of this Honourable Court granting an order of injunction directing the 2nd defendant to rectify the list of governorship candidates by expunging the name of the 3rd defendant as the Governorship candidate of the 1st defendant pending the outcome of fresh primaries.”
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An Order to choose the 1st respondent’s Governorship candidate for the 2015 election by due process and an order that 2nd respondent rectify the 1st of governorship candidates by removing the name of 3rd respondent as the 1st respondent’s candidate pending the outcome of the fresh primaries is no longer possible as the 2015 election have since held on 24-4-2015 and there is no claim for a declaration nullifying the 2015 elections and an Order that fresh elections be held.

Even if the appellant’s suit succeeded and all the reliefs sought for by him were granted, the current situation and status of the 3rd respondent would remain the same. Without the 2015 election being nullified and fresh elections to the office of Governor of Ebonyi State ordered, the entire reliefs sought for by the appellants even if granted will serve no useful purpose as the election return of the 3rd respondent as governor of Ebonyi State and his swearing in as such would remain intact and lawfully effective. It is the nullification of the 2015 Ebonyi State Governorship election and the ordering of a fresh election of Governor of Ebonyi that would have made the reliefs sought for in the originating summons effectual. An order of a fresh election of governor of Ebonyi State cannot be made when the election of the incumbent Governor of Ebonyi State is still valid and effective and has not been nullified as to render the office vacant. An Order of a fresh primaries in May 2016 to select the candidate of the 1st respondent for the 2015 election of Governor of Ebonyi State is as incongruous as it is absurd. It is an impossibility. An Order of fresh

primaries presupposes that there is an impending election to be contested and that each political party has to nominate its candidate to contest that election. To order fresh primaries to be held when there is no impending election to be contested is meaningless and futile. If the appeal succeeds, the appellant cannot be declared winner of an election he did not actually participate in, in view of S.141 of the Electoral Act 2010 and because he did not even claim for an order that he be so declared. The proper remedies for the appellant are the nullification of the 2015 election and an order of fresh elections. As the Supreme Court held in Eligwe v. Okpokiri & ors (2014) LPELR – 24213 (SC) per Ngwuta JSC, concerning the remedies available to an aspirant who even contested and won the primary election but whose name was not submitted as the party’s candidate for the election, if he succeeds in the Court below……..“succeeds in the Court below, he would not thanks to S.141 of the Electoral Act be declared winner of the election in which he did not actually participate. His remedy will be to have the election declared null and void and a fresh election in

which he will contest as his party’s candidate ordered. But even if fresh election cannot be held due to time constraints, all is not lost as far as he is concerned. “As a matter of fact, the expiration of the term for which the election was conducted does not affect the jurisdiction of the Court to determine the pre-election matter, depending on the claim before the Court. An aspirant for elective office, who contested and won the primary election but denied the opportunity to contest in the main election for which the primaries were conducted, has a claim in damages against the person or authority that prevented him from contesting the election. The pre-election matter or appeal arising from same is not extinguished by the mere fact the election took place and the winner sworn-in as a member of the legislative house for which the election was held and from which the pre-election arose. To deny a person who contested and won the primary election the right to contest the main election is an infringement of the right he acquired by winning the primary election for which he can sue the person or authority concerned for damages.”

So the appellant’s failure

to claim for the nullification of the 2015 Ebonyi State Governorship election and an order for a fresh election render this appeal and the suit it arose from an academic exercise and thereby robbed this Court of the jurisdiction to entertain and determine this appeal, as its determination would serve no useful purpose. In PDP v. INEC & Ors (2015) 9 CAR 207 at 263 this Court per Agim JCA held that
“Generally, where the reliefs that are relevant and appropriate in the light of the facts contained in the pleadings of a party are not asked for so that even if the case is tried and the plaintiffs case proved, no remedy will inure to the benefit of the plaintiff, leaving this position unchanged, the trial of such a case amounts to an idle and vain exercise. Such a case is clearly incompetent for trial. If it proceeds to trial, it would be dismissed.” This Court in that case upheld the Tribunal’s decision that the election petition was an academic exercise since it did claim for the vital reliefs of nullification of the election and an order of a fresh election. This Court held that “if the Tribunal had tried the petition on the basis of the grounds and

reliefs in the petition, it cannot make any order that is beneficial to the appellant.”
This Court in the above cited case relied on the Supreme Court decisions in CPC v. INEC & Ors (2012) All FWLR (Pt.617) 605 at 651 and Ige v. Olunloyo (1954) 1 SC 195. In CPC v. INEC (supra) the Supreme Court per Mohammed JSC (as he then was, now CJN) held concerning the effect of failure to claim for the relevant and vital relief on the competence of an action thusly- “even if the appellant had succeeded in being granted the remaining declaratory reliefs 1, 2, 3 and 5 of what use or benefit would that have been to the appellant in the absence of the vital relief of the trial Court ordering 1st and 2nd respondents to conduct a fresh election after the nullification of the election conducted on 16thÂ April, 2011, which the appellant questioned in its petition? The answer of course is obvious. This is because the grant of reliefs, 1, 2, 3 and 5 alone without vital and appropriate relief of directing the 1st and 2nd respondents to conduct another election, would have served no useful purpose to the petitioner/appellant thereby in my view rendering the whole exercise of

continuing with the hearing of the petition, a rather academic exercise.”

Inspite of the failure of the reasons relied on by the Learned SAN for the 2nd respondent’s first ground of objection, I still uphold the said ground of the preliminary objection that this appeal presents an academic exercise, there being no utilitarian value to be served by its determination one way or the other for the reason that the appellant did not claim for the vital reliefs of nullification of the 2015 Ebonyi State Governorship election and an order of a fresh election.

Let me consider the second ground of the preliminary objection. I do not agree with the argument of Learned SAN for the 2nd respondent that ground 1 of this appeal is vague, incomprehensible and incompetent. Learned SAN has made heavy whether of the inconclusiveness of the first line of the ground that “The Learned Trial Judge, erred in law when he held that he did not”. It is glaring that the words “he did not” in that line are out of place and inappropriate in that ground. Even though their presence in that line made the ground clumsy and inelegantly phrased, it did not affect the clear meaning and

intendment of the said ground which reads thusly-
“The Learned Trial Judge, erred in law when he held that he did not
“…Where there was no election at all or where the plaintiff did not take part in that election the Court does not have jurisdiction to entertain his complaint.
In the present case, the plaintiff did not participate in any primaries so that his action must fail on jurisdiction ground. That being the case, this matter is hereby struck out“.
a. The Learned Trial Judge relied on authorities such as APGA v. Anyanwu and …. that were not on-all-fours with the instant case in order to arrive at the judgment of 7th July 2015 subject matter of this appeal
b. The Learned Trial Judge did not distinguish the facts of the instant suit from the cases from which he drew the inspiration to hold that he had no jurisdiction.
c. Section 150 of the Electoral Act 2010 (as amended) states that an aspirant means, “a person who aspires or seeks or strives to contest an election to a political office” and nothing more.
d. Where as in this case an aspirant did not participate in the conduct of the primaries due to conflicting

signals from the political party in question, he is entitled to ventilate his grievance in a Court of law.
e. The Learned Trial Judge vied into the realms of speculation when he held that, “if there is no election, there are no contestants”.

This ground complains that the High Court would lack the jurisdiction to entertain a pre-election case challenging the procedure and conduct of a party’s primary election that nominated its candidate for an election, where the primary election did not hold or the plaintiff did not participate in the said primary election. This is a triable ground of appeal which has given due notice of the nature of the error it is complaining of. Therefore, I hold that ground 1 of this appeal is valid and competent. The preliminary objection is overruled on this ground.

Let me now consider the third ground of objection that issue No.2 as couched in the appellant’s brief has no relationship with the complain in ground 4 of this appeal and the further ground of objection that ground 3 of this appeal is incompetent as it did not allege any error.

?Ground 3 reads thusly-
“The Learned Trial Judge erred in law, when he

held that-
“Whether having regard to the combined provisions of S.2, 31(2) 50(1) 2(b) of the People’s Democratic Party Constitution 2014 Article A (i) Articles 2 and 3 of the Electoral Guidelines for primary election 2014 of the PDP, S.85(3) 86(1), 87(1) and 87(2) of the Electoral Act 2010 (As Amended) and S. 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended 1st to 4th Defendant refusal, neglect or ignoring of the result of the 3 Ad Hoc delegate election in the wards of Ebonyi State held on 1st November 2014 is void and a flagrant violation of the 1st defendant’s constitution and Guidelines for primary elections 2014.
This question was answered by the Court in the affirmative meaning that the 1st to 4th Defendants which includes the 1st and 2nd Defendant in this suit refused, or ignoring of result for the election of Ad Hoc delegates is void and a violation of the 1st defendant Constitution, The Court then granted reliefs against the present 1st and 2nd defendants in part as follows: A Declaration is made that the plaintiffs suing for themselves and in a representative capacity are the delegates elected on the 1st November,

2014 at the PDP ward congress held for Ebonyi State.”
PARTICULARS OF ERROR
a. The Learned Trial Judge erred by holding that the decision of a Court of co-ordinate jurisdiction (Coram Hon. Justice A.F. Ademola also of the Federal High Court) also of the Federal High Court.
b. The Learned Trial Judge failed or neglected to examine the Ad Hoc delegate list used by the respondents in the Special Congress, subject matter of the suit and determine whether it was in conformity with the 1st respondent’s Constitution and Electoral Guidelines established thereunder.
c. The Trial Court failed to note the significance of the declaration by Hon. Justice Ademola, which refused the reliefs to mandate INEC and PDP to recognize the delegate list for the ward election held on the 1st of November 2014.”

Ground 4 of this appeal states that- “The Learned Trial Judge, erred in law when he held that: “If he (Appellant) is not a contestant then he cannot institute an action on the conduct of that ward congress.”
PARTICULARS OF ERROR
a. The conduct of the ward primaries is a condition precedent to the conduct of the primaries that has been called

into question.
b. Any aspirant cognizable by virtue of Section 150 of the Electoral Act, 2010 (as amended) is entitled to challenge Ward Primaries which has skewered in favour of any other aspirant.
c. Ward primaries are designed to elect, “the Kingmakers” if the “Kingmakers” are untenable, the primaries also becomes untenable.”

The contention of Learned SAN that ground 3 did not allege any error is not correct. It is glaring that the first sentence of the ground alleges that – “The Learned Trial Judge erred in law, when he held that The ground clearly discloses that it is complaining against the decision of the trial Court adopting as the valid ward delegate list the one upheld by the trial Court per Ademola J in a previous pre-election suit. Therefore the objection that ground 3 of this appeal did not allege any error is not correct. It is accordingly overruled.

I agree with the submission of Learned SAN that issue No 2 of the appellant’s brief which asks “Whether the Learned Trial Judge was right in relying on the decision of the Federal High Court in Suit No.FHC/ABJ/CS/830/2014 – Barr. Leonard Nweke & Anor v. Peoples

Democratic Party & 4 others, having regard to the facts and circumstances of the instant case. (Distilled from grounds 3 & 4)”, has no relationship with ground 4 of this appeal. But it clearly has a nexus with ground 3 of this appeal as indicated by the appellant. It is therefore competent as it derives from one of the grounds of this appeal.

The arguments in paragraphs 4.20 to 4.25 of the appellants brief which clearly address the complain in issue No 2, are based on it and support it are competent.

But the arguments in paragraphs 4.30 – 4.80 of the appellants brief made under issue No 2 therein clearly do not address in the complain in the said issue. They rather argue against the part of the trial Courts judgment that the appellant as an automatic delegate to the Special State Congress has no locus standi to complain about the conduct of a ward congress that produced the Ad-hoc delegates for the State Congress and that appellant not having contested the primary election cannot complain about the said primary election. The complain in issue No 2 is against the decision of the trial Court to accept the list of Ad-Hoc delegates declared as

the authentic Ad-hoc delegates by it per Ademola J in a previous case Nweke & Anor v. PDP & Ors (FHC/ABJ/CS/830/2014). So the arguments in paragraphs 4.30 to 4.80 have no relationship with the issue under which they were argued.
The arguments are therefore incompetent. They are hereby struck out. Arguments under an issue must be consistent with the subject matter of an issue. Where the subject of an argument under an issue is inconsistent with the subject matter of the issue, then the argument cannot be said to be derived from or based on the issue.
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I agree with the Learned SAN for the 2nd respondent that no issue for determination was distilled by the appellant from ground 4 of this appeal. But the arguments in paragraphs 4.30 to 4.80 of the appellants brief under issue No 2 therein support the said ground 4. Without an issue for determination raised from the said ground no argument can competently be made on the said ground for two reasons. Firstly, by not raising any issue from the said ground 4, the appellant abandoned it as a ground of this appeal. Secondly, an appeal in this Court is argued on the basis of the issues raised for

determination from the grounds of appeal and not directly on the basis of the grounds of appeal.

I uphold the objection to ground 4 of this appeal as having been abandoned since no issue was distilled for determination from it. Accordingly, it is hereby struck out.

Having held that this appeal and indeed the suit from which it arose amount to an academic exercise as its determination any way would serve no useful purpose, there would have been no need to proceed to the determination of the merits of this appeal, but I would still proceed to do so for whatever it is worth and the reason that, in case of an appeal to the Supreme Court and my above decision is overruled, my decision on the merit of the appeal would be readily available to be reviewed by the Supreme Court in the same appeal instead of remitting the appeal back here for the said issue to be determined with attendant further costs and delay. See Brawal Shipping (Nig) Ltd v. F. I. Onwudike Co Ltd & Anor (2000) 6 SC (Pt. 11) 33 which recommended this approach as a best practice for penultimate Courts to avoid piece meal litigation and reduce the time and expense of litigation.

will determine the merit of this appeal on the basis of the issue for determination raised in the appellant’s brief.

The admitted facts of this case are that the appellant, a member of the 1st respondents had fulfilled all the requirements prescribed in part IV Article 13 of the 1st respondent’s Electoral Guidelines for the Primary Elections 2014 that qualify him as an aspirant in the 1st respondent’s gubernatorial Primary Election 2014, that he obtained, completed and returned to the 1st respondent the Expression of interest Form – Code PD0021G, that he was screened and cleared by the 1st respondents Gubernatorial Screening Committee as qualified to participate in the said primary election, that the primary election held on 8-12-2014 and the 3rd respondent was declared winner of the primary election and his name was forwarded to the 2nd respondent by the 1st respondent as its candidate for the 2015 general election of Governor of Ebonyi State and that the appellant did not participate in the said 8-12-2014 primary election.

The appellant on one hand and the 1st and 3rd respondents on the other do not agree on the reason why the appellant did not

participate in the said primary election he was cleared as qualified and entitled to contest and whether the 8-12-2014 gubernatorial primary election was suspended by the National Executive Committee of the 1st respondent.

The appellant’s reasons for being unable to contest the gubernatorial primary election are stated in paragraphs 2(vi), (vii) and (viii) of the affidavit in support of the originating summons thusly-
(vi) The plaintiff was unable to participate in the said Gubernatorial primary election on account of the fact that the 1st defendant’s Ebonyi State Chapter had substituted the authentic delegates list with a different list not in accordance with the 1st defendant’s guidelines.
(vii) The substituted delegates list was designed to produce a prearranged gubernatorial candidate and this resulted in the election of the 3rd defendant as the flag Bearer of the 1st defendant in the Ebonyi State Gubernatorial Election, 2015.
(viii) The plaintiff did not take part in the primaries on account of the fact that the State chapter of the 1st defendant informed him that the 1st defendant had suspended all primary election in Ebonyi State

pending the restoration of the authentic list
(ix) Sequel to the fact deposed in viii) above, series of meetings were held at the highest level of the 1st defendant on account of which the Governor of Ebonyi State who is the Ebonyi Leader of the 1st defendant, publicly announced that all primary elections in Ebonyi State (and three other States) had been suspended pending the resolution of the dispute over the delegates list.”

Paragraph 2 (XI) of the affidavit in support of the originating summons state that it was the Ebonyi State Chapter of the 1st respondent that conducted the said 8-12-2014 gubernatorial primary election and the 2nd respondent relied on its outcome.

The 1st respondent in paragraphs 6 and 7 of its counter affidavit to the affidavit in support of the originating summons stated why the appellant was unable to participate in the 8-12-2014 primary election thusly-
6. “That the 1st respondent denies sub-paragraph 2(v) of the appellant’s affidavit and states that the appellant hoped to become the gubernatorial candidate of the PDP in the 2015 general elections as the lackey or mere endorsee, without more, of the sitting

Governor Martin N. Elechi and was himself neither ready nor prepared for the PDP primaries and the events subsequently leading thereto. The applicant was the only gubernatorial aspirant who never participated in the PDP gubernatorial primary, as he voluntarily withdrew or boycotted same without any previous protest to the 1st respondent until after the very peaceful and successful gubernatorial primary held on the 8th day of December, 2014 and leading to the election of the 3rd defendant/respondent as the 1st respondent’s gubernatorial candidate for Ebonyi State, when on the 9th day of December, 2014 the applicant delivered to the 1st respondent a protest letter dated 9th December, 2014 (annexed to the plaintiff’s affidavit in support of the originating Summons as Exhibit H). The 1st respondent considered and found the applicant’s said exhibit H as an afterthought and lacking in merit;
7. That the 1st respondent denies paragraph 2(vi) of the applicant’s affidavit and states that the applicant voluntarily boycotted the PDP gubernatorial primary without any previous protest. No authentic delegates list was substituted with a different list as falsely

alleged by the applicant. The delegates list used was the one accepted as the results the 2nd respondent had collected at the venues of the Ward primaries). This was the same list adjudged as the delegates elected on the 1st November, 2014 at the Ward Congress held for Ebonyi State by the Federal High Court, Abuja in its judgment delivered by the Hon. Justice A.F.A. Ademola (Judge) on the 24th day of November 2014 in Suit No.FHC/ABJ/CS/830/2014 (BARR. LEONARD NWEKE & 2 ORS (SUING FOR THEMSELVES AND ON BEHALF OF ALL DELEGATES ELECTED ON THE 1ST NOVEMBER, 2014 AT THE WARD CONGRESS HELD FOR EBONYI STATE) V. PEOPLES DEMOCRATIC PARTY (PDP) & 4 ORS). The said judgment exhibited to the 1st defendant’s counter-affidavit in opposition to originating Summons and marked Exhibit I.D shall be founded upon in opposition to this application. The lists of the Ward adhoc delegates elected in the ward Congress which were admitted in the said suit as exhibits and referred to as Exhibits GI-GI3 in suit No. FHC/ABJ/CS/830/2014 and were exhibited and marked as Exhibits 1.D1 – 1.D13 in the 1st defendant’s counter-affidavit in opposition to this application. A copy of the

originating Summons together with the affidavit in support, which I obtained from the Court, and was also to exhibited and marked Exhibit 1.D14 in the 1st defendant’s counter-affidavit in opposition the originating summons shall be founded upon in opposition to this application. To the best of my knowledge, no appeal was filed by the applicant against the judgment;
8. That the 1st respondent denies paragraph 2(vii) of the applicant’s affidavit and states that there was no substituted delegates list as falsely alleged by the applicant neither was there a pre-arranged gubernatorial candidate. The 3rd defendant/respondent won the PDP Gubernatorial primary freely and fairly;”
In further reply to the above depositions of the affidavit in support of the originating summons, paragraphs 9 to 12 and 15(g) and (h) of the 1st respondents counter-affidavit states thusly-
9. That the 1st respondent denies paragraph 2(viii) of the applicant’s affidavit and states that the respondent’s Ebonyi State Chapter did not fix the dates for the 1st respondent’s primary election. The holding of the 1st respondent’s primary elections, fixing of dates and suspension of a

primary election were strictly subject to the control and decision of the 1st respondent’s National Executive Committee and National Working committee to the exclusion of its State chapter, including the 1st respondent’s Ebonyi State Chapter.
The 1st respondent’s Ebonyi State Chapter had no power to suspend and also never informed the applicant that the 1st respondent’s primary elections were suspended in Ebonyi State. As a matter of fact, the 1st respondent held the House of Representatives and Senate primary elections in Ebonyi State on December 6 and 7, 2014 respectively, while the Ebonyi State gubernatorial primary of the party was held on December 8, 2014. All the 1st respondent’s gubernatorial aspirants of the party were physically present and participated in the gubernatorial primary with the exception of only the applicant, who voluntarily chose to boycott it;
That the 1st respondent denies paragraph 2(ix) of the applicant’s affidavit and states that it’s unaware of the applicant’s alleged series of meetings and or any dispute over the party’s delegates’ list, and Governor of Ebonyi State had no power to suspend the 1st respondents primary

elections;
11. That the 1st respondent denies paragraph 2(x) of the applicant’s affidavit and states that no reconciliation committee with respect to the ward Congress and or the party primaries was ever set up or held. As a matter of fact, none of the 1st respondent’s gubernatorial aspirants, including the applicant sent any letter protesting the results of the ward Congress up till the last day of the 1stÂ respondent’s primaries on the 8th day of December, 2014. If any reconciliation committee was ever set up, it was not so set up by and had nothing at all to do with the 1st respondent;
12. That the 1st respondent denies paragraph 2(x) of the applicant’s affidavit and states that there was no directive given by the 1st respondent to suspend its primary election in Ebonyi State. The 1st respondent held the gubernatorial and all other primary elections freely, peacefully and without any imperfection or dispute or dissension on the part of the contestants;”
15(g). The 1st respondent’s National Working Committee, acting in line with its Constitution and guidelines slated the Gubernatorial primary Elections to hold nationally, including Ebonyi State,

on the 8th day of December 2014. The 3rd defendant/respondent, who also purchased and processed the 1st defendant’s Gubernatorial Expression of Interest and Nomination forms, and was screened and cleared by the Screening Committee, was one of the candidates for the 1st respondent’s gubernatorial primary in Ebonyi State, together with the applicant and seven other persons.
15(h). On the said 8th day of December, 2014, the Gubernatorial primary Elections held freely and fairly in Abakaliki, the Ebonyi State capital with the three elected and ad-hoc delegates per ward, as adjudged by the Court and declared by the 1st respondent during which primary election 7 aspirants participated in a keenly contested primary. The applicant was the ONLY gubernatorial candidate of the 1st respondent who, without previously complaining of any wrong doing, voluntarily refused and or neglected to show up for the Gubernatorial primaries.

So the central issues in controversy in the suit at the trial Court were whether the appellant was excluded or withdrew from the 1st respondent’s Ebonyi State gubernatorial primary election of 8-12-2014, whether the primary election was

in accordance with the Electoral Act and guidelines of the 1st respondent and whether the nomination of the 3rd respondent by the said primary election as the 1st respondent’s candidate for the 2015 general election of Governor of Ebonyi State was in accordance with the Electoral Act and the 1st respondent’s 2014 Electoral Guidelines.

The trial Court held that “It is not in dispute that the plaintiff withdrew and did not contest the gubernatorial election for Ebonyi State.” There is no ground of this appeal complaining against this holding of the trial Court. By not appealing against it, the appellant accepted it as correct, valid and binding upon him. See SPARKLING BREWERIES LTD. & ORS V. UBA (2007) 7 SC (PT.11) 146, IYOHO v. EFFIONG (2007) 4 SC (PT.111) 90, AMALI V. SOKOTO LOCAL GOVERNMENT & ORS. (2012) LPELR – 7842 (SC) AND BIARIKO v. EDEH – OGWUILE (2001) 4 SC (PT.11) 96.

The trial Court relying on the Supreme Court decisions in Adegbuyi v. APC (2015) 2 NWLR (pt 1442) 1 at 22 and APGA v. Anyanwu (2014) NWLR (Pt.1407) 54 held that an aspirant who withdrew from contesting in a primary election cannot validly complain about the conduct of the

said primary election and the Court would not have the jurisdiction to entertain and determine such a complain by an aspirant who did not participate in the said primary election, and struck out the suit for lack of jurisdiction.

Learned Counsel for the appellant has argued that APGA v. Anyanwu and Emenike v. PDP were wrongly relied on by the trial Court because they were clearly distinguishable from our present case. He then submitted that- APGA v. Anyanwu (supra) Emenike v. PDP (supra) and all other cases that state that an Aspirant must contest in a primaries to be able to challenge same, consists of situations where there were valid primaries and what was in issue was whether the said primaries complied with guidelines or Constitution of the party, that these cases are different from the instant case, where the National Body of the party (1st respondent herein) cancelled the primaries, as distinct from primaries conducted by unknown elements of the said 1st respondent that if an individual were to participate in an election that was cancelled by the National body or the leader of the party in a State, Estoppel will operate to subsequently estop such

individual from complaining later, that failure to distinguish the instant case from the cases relied on by the Court will put the appellant in an impossible position as he would have participated in a primaries not sanctioned by his party and if he participated he will be stopped from complaining later with regard to the validity of the said primaries in the first place, that the issue in APGA v. Anyanwu (supra), was that the 1st respondent was not a member of the political party as at the time the primary election was conducted, that in the instant case, the appellant showed strong intention of contesting in the primary election by obtaining the expression of interest form, nomination form and presenting himself for screening and was indeed cleared to contest, that these facts show that the appellant did everything within the context of the provisions of the 1st defendant’s Guidelines to contest in the special Congress organized by the 1st respondent in our view, this brings him within the purview of the word, ASPIRANT“, that if primaries are conducted in a transparent manner, and without intentions to manipulate, or elbow out some individuals, a

person who decides to exclude him or himself from primaries conducted appropriately by his party, cannot question, what happened in the primaries in the circumstances, that the said Supreme Court decisions should not apply-
1. Where a respondent clearly bundles a plaintiff out of a special congress ground to make him not to participate.
2. Where a plaintiff is mistakenly given a wrong date or sent on an official assignment and primaries shifted a day ahead to skim him or her out.
3. Where the respondents by trickery changes venue of congress to a venue not known to a plaintiff.

Another submission of Learned Counsel for the appellant is that the Electoral Act 2010 by defining the word “aspirant” in S.56 therein to mean “a person who aspires or seeks or strives to contest an election to a political office” did not intend that the aspirant must be a person who participated in the primary election and that he must have so participated to be eligible to exercise the right of action created by S.87 (a) of the Electoral Act 2010, that limiting the definition of Aspirant as defined in Section 156 of the Electoral Act, 2010, (as amended) to only

people who participated in the primaries will depend on whether there was a primaries sanctioned by the guidelines of the party or approved by its leadership, if not limitation of the definition to only individuals who participated in the primaries will be tantamount to making the respondents to profit from their wrong.”

She also submitted that to limit the meaning of the word aspirant in S.87(a) to the person that contested the primary election would leave the appellant without access to remedy even though he has been wronged, that equity will not allow a wrong to be without a remedy. For this submission she relied on Amaechi v. INEC (2008) 1 SC (Pt.1) 36 at 133 – 134 and Oyekanmi v. NEPA (2000) 12 SC (Pt.1) 70

Learned counsel for the 1st respondent argued in reply that the trial Court rightly held that since the appellant did not participate in the 1-11-2014 special ward congress that elected the ward ad-hoc delegates that were to vote in the 8-12-2014 gubernatorial primary election, he has no locus standi to complain about the conduct and outcome of the special ward congress and the trial Court lacked the jurisdiction to entertain such a complain.

For this submission he relied on the judicial authorities of PDP v. Sylva (2012) MRSCJ vol. 3 P. 176 (2012) All FWLR (pt 367) 606.

Learned Counsel also submitted that the trial Court rightly held that since the appellant did not participate in the 1st respondent’s gubernatorial primary election of 8-12-2014, he lacks the right to complain against the conduct and outcome of the said primaries and the trial Court lacked the jurisdiction to entertain such a complain, that the appellant did not show that the said primary was invalid, that the appellant who had in his argument in paragraph 3.27 of his brief conceded that only an aspirant who contested a primary election can challenge same, failed to show why APGA v. Anyanwu and Emenike v. PDP and all other similar cases on the point cannot apply here. In support of this submission, he relied on the judicial authorities of PDP v. Sylva (supra), Adegbuyi v. APC (supra), Lado & ors v. CPC & ors (2011) 18 NWLR (Pt.1279) 689, Mark v. Abubakar (2009) 2 NWLR (Pt.1124) 79 at 190, Enemuo v. Duru (2004) 9 NWLR (Pt.877) 105, Emenike v. PDP (supra), Emeka v. Okadigbo & Ors (2012) LPELR – 9338 (SC), Shinkafi

& Anor v. Yari & Ors (SC.907/2015 delivered on 8-1-2016).

Another submission of Learned Counsel is that the plaintiff relied heavily on a public announcement at the instance of the Governor of Ebonyi State to the effect that primary Elections of the 1st defendant in Ebonyi State had been postponed indefinitely that this announcement which substantially operated on the mind of the plaintiff and led him to boycott the primary election of December 8, 2014 was not endorsed by the 1st respondent, that if the plaintiff has any grievances, then the appropriate person for him to sue is the former Governor of Ebonyi State who deceived and misled him into his present political quagmire, that the plaintiff voluntarily and willingly refrained from taking part in the Gubernatorial primaries of the 1st defendant only for him to turn around to challenge it.

The Learned SAN for the 2nd respondent also argued that the trial Court rightly held that because the appellant withdrew from and did not participate in the 8-12-2014 gubernatorial primary election of the 1st respondent, he cannot in law complain about the primary election and the trial Court lacked the

jurisdiction to entertain and determine such a complain. In addition to the judicial authorities relied on by the 1st respondent on this point, Learned SAN also relied on Ardo v. Nyako (2014) 10 NWLR (pt 1416) 591 at 629, Yaradua & Ors v. Yandoma & Ors (2015) 4 NWLR (pt 1448) 123 at 178.

Learned SAN for the 3rd respondents argument on this point are exactly similar to the argument of Learned Counsel for the 1st respondent and Learned SAN for the 2nd respondent. Therefore there is no need reproducing them. I will consider all the arguments of the three respondents on this point together.

It is settled by a long line of Supreme Court decisions that the aspirant whom S. 87(a) of the Electoral Act 2010 as amended vests the legal right to sue complaining about that the selection or nomination of the candidate of a political party for an election did not comply with any of the provisions of the said Act or guidelines of the political party is an aspirant who participated in the primary election that therefore an aspirant who did not participate in the primary election has no right to sue complaining about the conduct and outcome of the primary

election and that the Court lacks the jurisdiction to entertain and determine such a suit by an aspirant who did not participate in the primary election. See APGA v. Anyanwu (supra), Emenike v. PDP (supra), Adegbuyi v. APC (supra) Mark v. Abubakar (supra), Enemuo v. Duru (supra), Emeka v. Okadigbo (supra), Nwaogu v. Atuma (2013) All FWLR (Pt.669) 1022, PDP v. Sylva (supra), Shinkafi & Anor v. Yari & Ors (supra), Ardo v. Nyako (supra) Lado & Ors v. CPC & Ors (supra).
In its recent decision in Shinkafi v. Yari & Ors (supra) the Supreme Court restated the law on this point beyond any conjecture when it reproduced the exact text of S.87 (a) of the Electoral Act and explained its meaning and intendment. That portion of the judgment of the Supreme Court reads thusly- “Now, Section 87(9) of the Electoral Act provides:-
Notwithstanding the provisions of this 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 Federal Capital Territory, for redress.”
“The above provision which is clear and unambiguous gives only one person the locus standi to challenge the nomination of a person for an election during a primary election. Only an aspirant at the primary election is permitted by Section 87 (9) of the Electoral Act, 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorized to file an action to challenge the selection or nomination of a candidate by a political party for an election.
“In Daniel v. INEC (2015) 9 NWLR (pt.1463) 113 at 155, 156, 157 paragraphs G-S and 158 paragraph G, this could held that:
“By the provision in Section 87(9) of the Electoral Act, 2010 (as amended) it is an aggrieved aspirant who physically participated in a primary election conducted by the National Executive Committee of his party that is imbued with the locus standi to raise a finger of complaint. The appellant admitted that he did not participate in the primary. He is not an aspirant in terms of Section

87(9) of the Electoral Act. He is not imbued with the locus standi to challenge the said primary.”
“Evidence on record shows that the appellant were not aspirants who participated at the primary election of the APC (2nd respondent) held on 4th December, 2014. Their complaint before this Court is a challenge to the selection or nomination of the 1st respondent herein by his party. The truth is that apart from the fact that the appellants were not among the persons permitted by Section 87 (9) of the Electoral Act, 2010 (as amended) to challenge the nomination or selection of a candidate for election, they failed to approach the appropriate Court which has jurisdiction to hear the matter… All I have said above is that the appellants had no locus standi to challenge the election or nomination of the first respondent by his political party, the APC, at its primary election of 4th December, 2014. The simple reason being that they were not aspirants at the said primary election. According to Section 87 (9) of the Electoral Act, 2010 (as amended) only an aspirant who participated in a primary election can challenge its outcome. The provision is restrictive in

nature.”
In Adegbuyi v. APC (supra) the Supreme Court held that- “It is basic that the appellant who withdrew from the contest cannot validly complain about the conduct of the primary election. He has no competence and authority to complain or institute on action. He cannot be allowed to blow hot and cold at the same time. He has no capacity to approach the Court to enforce any right from the same primary. See Buhari v. INEC & Ors (2008) 18 WRN 36; (2008) 4 NWLR (Pt.1073) 546; Bamigboye v. Saraki (2010) 14 WRN 125.
In Ardo v. Nyako (supra) the Supreme Court held that- It follows that for a party/person to qualify or have the locus to institute an action on a matter arising from the nomination of a party’s candidate for an election, he must have participated in the nomination exercise of the party and failed irrespective of whether nomination is a process or an event. Where a party did not participate in the primary election of the political party for the nomination of a candidate for an election, he cannot sue on the processes leading to and including the actual primary election, because by the provisions of the said Section 87 (9)

supra, the Court will have no jurisdiction to hear and determine the action.”

The trial Court rightly relied on the same restatements by the Supreme Court in APGA v. Anyanwu (supra) and Emenike v. PDP (supra). I do not agree with the argument of Learned Counsel for the appellant that those cases are inapplicable here. The questions that were considered in those cases were, whether an aspirant who did not participate in the primary election can complain about it and whether the Court has jurisdiction to entertain such suit. These are the same questions that the trial Court considered here when it relied on the Supreme Court decisions in those cases. The fact relevant to the resolution of the said questions is the fact that the aspirant did not participate in the primary election. This is the significant and relevant fact in the precedent cases and in the present.

I agree with the submission of Learned SAN for the 3rd respondent that the facts of the precedent case and the present case must not be exactly the same before the Court in the present case can rely on the decision in the precedent case. As this Court held in Ogba v. Vincent (2014) CAR, cited

by Learned Counsel for the 3rd respondent, “It is not every fact in the precedent and pending case that must be considered to determine if the two case are factually similar. Only facts that are significant or relevant to the resolution of the question in the precedent case and the pending case should be considered. The precedent case and the pending case do not have to be identical in all facts.” In Adetoun Oladeji Nig Ltd v. Nigerian Breweries PLC (2007) 5 NWLR (pt 1027) 415 at 436 followed by this Court in Ogba v. Vincent (supra), Tobi JSC restated that- “Stare decisis which means to abide by or adhere to decided cases, as a policy of Court to stand by precedent, is based on a certain state of facts which are substantially the same, and here the word is substantially. This means that the facts that gives rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all facts in the sense of exactness or exactitude.
And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built

by the judicial system over the years does not say that the facts must be exactly the same..” (underlining for emphasis).

The argument of Learned Counsel for the appellant that the principle that an aspirant who did not participate in the primary election cannot complain about that primary election should not apply where the aspirant was unlawful excluded from the primary election cannot be accommodated by the current state of case law on the point. The judicial restatements of the Supreme Court in the above cases do not provide for the qualified application of this principle as they are couched in general terms, without regard to the reason or cause for the non participation or the merit of the suit complaining about the primary election. The alleged unlawful exclusion of an aspirant from participating in a primary election can be a valid cause for action for damages against those who were responsible for his unlawful exclusion from participating in the primaries. Such alleged unlawful exclusion cannot vest him with locus standi to sue complaining about the primary election he did not participate in.

Also in considering an objection to the jurisdiction

of a Court to entertain a suit on the basis of an established or admitted fact that constitutes a feature that robs the Court of jurisdiction, the merit or otherwise of the subject matter of the suit is not a relevant consideration in determining the success of failure of the objection. So once a fact or facts which show that the plaintiff lacks the locus standi to sue exist, the Court would lack the jurisdiction to entertain the suit and the Court cannot because of the alleged merit of his case assume jurisdiction to entertain the suit for the reason that if the Court refuses to assume jurisdiction to entertain his claim, his alleged injury would have no remedy.

In any case, in our present case the respondents did not play any role in preventing the appellant from participating in the primary election. The appellant voluntarily withdrew from the primary election. Therefore the appellant who voluntarily withdrew from the primary election lacks the locus standi to sue complaining about the said primary election and the Court would not have the jurisdiction to entertain the suit. See Adegbuyi v. APC (Supra). The appellant admitted in paragraphs 2 (vi),

(vii) and (viii) of the affidavit in support of the originating summons that he was unable to participate in the said primary election because its holding was suspended by the incumbent Governor of Ebonyi State as the leader of the party the State or the State chapter of the party. In exhibit H, attached to the affidavit in support of his originating summons, a letter of protest against the 8-12-2014 primary election which he wrote to the National Chairman of 1st respondent on 9-12-2014, he admitted his withdrawal from or boycott of the primary election thusly – “It was in loyal compliance with this party decision that I decided not to participate in the Ebonyi State gubernatorial primary Election purported to have been held on the 8th December 2014.” But by Article 17 of the 1st respondent’s Electoral Guidelines for the Primary Elections 2014, the body vested with the authority to determine the date for the holding of 1st respondent’s gubernatorial primary election is the National Executive Committee of the 1st respondent, on the recommendation of the National Working Committee of the party. The said Article 17 reads thusly – “the gubernatorial primary

elections of the party shall be held on a date approved by the National Executive Committee on the recommendation of the National Working Committee of the party.”

Nothing in the said guidelines vests power in the Governor of a State, the State Chapter of the party or any organ of the party to suspend the holding of primary election on a date approved by the National Executive Committee. So the public announcement by the Governor of Ebonyi State suspending the holding of all primary elections is ultra vires his power and is illegal, null void. Also, assuming it was the State chapter of the party that suspended the holding of such primary elections, the suspension is ultra vires its power and would equally be illegal and void. By virtue of Article 7 of the 1st respondent’s 2014 Electoral guidelines, no other body or organ of the 1st respondent has the power and authority to fix the date for the holding of gubernatorial primary election except its National Executive committee. Inherent in this power is the power to suspend the holding of the primary election on a date it has already fixed for it to hold. In any case, the appellant did not even allege that

the National Executive Committee of the 1st respondent which has the exclusive power to fix or cancel the date for the holding of primary elections suspended the holding of the primary election on 8-12-2014. The earliest date being 9-12-2014 when he protested against the primary election of 8-12-2014, by writing exhibit H to the National Chairman of the 1st respondent he did not allege that the National Executive Committee ordered the suspension of the 8-12-2014 primary election. He stated in-exhibit H that it was the governor who informed him that the primary elections of Ebonyi State had been suspended by the party because of disagreement between the Ebonyi State Chapter and the National Working Committee of the 1st respondent on the authentic list of ad hoc delegates to vote in the primary election and each side insisted that its list was the authentic one and that the same Ebonyi State Governor as State leader of 1st respondent publicly announced the suspension and verbally informed the appellant personally that a meeting of the National Chairman of the party, the Vice president, Ebonyi State governor and other governors had decided that all primary

elections in Ebonyi State and three other States be suspended and had instituted a three man Reconciliation Committee to resolve the dispute and the committee which sat on 3rd and 4th December 2014 has uptill now not released its report. So appellant has been consistent that it was the Governor of Ebonyi State who announced the suspension of the 8-12-2014 primary election and verbally informed him that a meeting of the National Chairman, Vice president and governors had decided that the primary election be suspended. The verbal information is hearsay and in law is worthless as it cannot be relied on to establish the truth of the fact it alleges. See In any case, the body, the then Governor of Ebonyi State informed him took that decision is not the National Executive Committee of the 1st respondent.

So the appellant refrained from participating in the 8-12-2014 primary election in compliance with the illegal announcement by the Governor of Ebonyi State. It is glaring that the appellant was not elbowed out or excluded from the primary election, he voluntarily withdrew from a primary election in which the other 7 aspirants participated, acting on the

information he purportedly received from the State chapter of the party or on the public announcement by the chief press secretary to the Governor of Ebonyi State that all primary elections in Ebonyi State had been suspended.

I agree with the submission of Learned SAN for the 3rd respondent that the appellant was the architect of his own misfortune, He should have gone ahead and participated in the said 8-12-2014 primary election and thereafter complained that the ad hoc delegates that voted in the primary election were not elected in accordance with the 1st respondents Electoral Guidelines 2014 or make any other complaint about the conduct and outcome of the said primary. The right to so complain would have enured to him if he had participated in the primary election by virtue of S.87(9) of the Electoral Act 2010 as amended. The arguments of Learned Counsel for the appellant that sufficient injury was inflicted on him entitling him to sue and requiring the Court to hear him because some members of Ebonyi State chapter of 1st respondent held the primary election, notwithstanding that the national body and the State leadership of the party had suspended

the primary election, that he did not participate in the primary election for that reason and the name of the 3rd respondent forwarded by the 1st respondent to the 2nd respondent as its candidate for the 15-4-2015 election and the further argument that a refusal by the Court to assume jurisdiction where an aspirant has been elbowed out from participating in the primaries he had been screened and cleared to contest will amount to the law taking sides with illegality are not valid.

I do not agree with the argument of Learned counsel for the appellant that if the appellant had participated in this 8-12-2014 primary election, knowing fully well that it had been suspended from holding by the leader of the 1st respondent in the State or its State chapter or its national body, estoppel will operate to subsequently estop him from complaining later. This submission is against the trend of judicial authorities that it is his participation in the said primary election that would have vested him with the right to complain and the Court with the jurisdiction to entertain the complain. So by withdrawing from participating in the primary election, he deprived himself of

the legal right vested by S. 87(9) on an aspirant who participated in the primary election, to bring a suit complaining about the conduct and outcome of the primary election.

The trial Court was right when it held that the appellant had no locus standi to complain about the conduct and outcome of the ward special congress of 1-11-2014 that produce the list of ad hoc delegates that voted in the primary election of 8-12-2014. But the reason it gave for this holding is wrong. The reason it gave was that the appellant did not participate in the special ward congress he was already an automatic delegate to the special State congress of 8-12-2014 by virtue of being aspirant screened and cleared to contest the primary election of 8-12-2014 and that not having contested as a candidate for ad-hoc ward delegate in the special ward congress he lacked the locus standi to complain about it, on the principle that an aspirant who did not participate in an election sue complaining about the said election. The implication of this holding is that no aspirant who participated in the primary election can complain about the conduct and outcome of the special ward congress

that elected the Ad Hoc delegates. The reason that correctly supports the above holding of the trial Court is that because the appellant did not participate in the primary election of 8-12-2014, he lacked the locus standi to sue complaining about the conduct and outcome of the primary election, which process the election of ward ad-hoc delegate is part of.

I do not agree with the classification of the election of ward ad-hoc delegates on 1-11-2014 as a pre-primary election activity which does not come within the confine and scope of S.87 of the Electoral Act 2010 as amended. The ad-hoc delegates are elected to vote in the gubernatorial primary election. So the special ward congress that elects them is for the purpose of the voting at the primary election to select or nominate the party’s candidate for the general election to a certain public office. In respect of nomination of the 1st respondent’s candidate for election to the office of Governor, Article 2 of the 1st respondent’s Electoral Guidelines 2014 thusly- “For the purpose of nominating the party’s candidates for the offices of Governor of a State, member of the National Assembly? Each ward

chapter of the party shall elect three (3) Ad Hoc Delegates at a special ward congress, at least one of whom shall be a woman. The same delegates shall participate in the special congresses for the nomination of the candidates in this paragraph.”
It is obvious that without the election of the Ad Hoc Delegates to elect the party’s candidate in the primary election, the primary election would not hold.
Article 3 of the said 2014 Electoral Guidelines stipulates how the 3 Ad-Hoc Delegates per ward shall be elected by the special ward congress. It states thusly- “While the three (3) Ad-Hoc delegates shall be elected by all registered and card carrying member in the ward. The three (3) aspirant with the Highest votes shall be returned elected. Provided that where no woman is among the three (3) aspirants with the highest votes, the female aspirant that scored the highest votes among female aspirants shall be declared the third delegate.”
?Only members of the 1st respondent who were duly elected as ward Ad-Hoc Delegates by their special ward congress in accordance with Articles 2 and 3 of the 2014 Electoral Guidelines are competent to vote as Ad-Hoc

Delegates at the special State congress (primary election) to nominate the party’s gubernatorial candidate. Therefore an aspirant who participated in the gubernatorial primary election can complain that the nomination or selection of the party’s candidate for the election has not complied with the Electoral Act 2010 and the 1st respondents Electoral Guidelines, because the Ad-Hoc Delegates that voted in the special State congress were not elected as such in accordance with Articles 2 and 3 of the 2014 Electoral Guidelines of the 1st respondent. It is a complain that clearly comes within the purview of the complain which S. 87 (9) of the Electoral Act gives an aspirant who participated in the primary election the right to make. The danger of holding otherwise is too obvious. If the complain that the persons who voted as ward Ad-Hoc Delegates in the primary election had no right to so vote because they were not duly elected as such ward Ad-Hoc Delegates is not within the scope of the complain S. 87(9) of the Electoral Act 2010 gives an aspirant who participated in a primary election to make, then the Court would lack the jurisdiction to determine if the persons

who voted as ward Ad-Hoc delegates during the nomination of an aspirant as the party’s candidate for an election were duly elected as such ward ad hoc delegates in accordance with Articles 2 and 3 of the 1st respondents Electoral Guideline 2014. In that event the political party would become the sole determinant of who should be a ward ad hoc delegate at the special State congress and any list of such ad hoc delegates approved by it would be beyond judicial scrutiny. This can lead to a situation where persons who are not duly elected ward ad hoc delegate can be used to vote during primary elections with impunity, with the result that primary elections outcomes would not represent the wishes of the generality of members of the political party. In a country like ours, where politicians have a proclivity of habitual disobedience of their own political party Constitution and Electoral Guidelines as well as our national laws, it would be dangerous to our general well being and the development of genuine democracy to preclude from the jurisdiction of our Courts, the question of whether a party’s candidate for an election was elected by legal delegates in the primary

election.

If the appellant had participated in the primary election of 8-12-2014, he would have had the locus standi to bring the complain against the entire process of the primary election from the special ward congress of 1-11-2014 to elect ward Ad Hoc Delegates to the State special congress of 8-12-2014 that elected the 3rd respondent as the 1st respondent’s candidate for the 24-4-2015 Ebonyi State Governorship election.

In the light of the foregoing issues Nos 1 and 3 of the appellant’s brief are resolved in favour of the respondents.

In the light of my holdings in the determination of issues 1 and 3 herein that the trial Court rightly held that the appellant had no locus standi to sue complaining about the primary election of 8-12-2014 and that the Court lacked the jurisdiction to entertain such a suit by an aspirant who did not participate in the said primary election, I do not think that any useful purpose will be served determining issue No 2 of the appellants’ brief. I therefore refrain from considering it.

Having held and affirmed that the trial Court lacked the jurisdiction to entertain and hear the appellants suit, I do

not think there is need to consider the 3rd respondent’s notice that the judgment be affirmed on other grounds.

On the whole this appeal fails as it lacks any scintilla of merit. It is accordingly dismissed. The judgment of the Federal High Court of Nigeria sitting at Abakaliki delivered on 7-7-2015 in suit No. FHC/AI/CS/1/2015 per M. A. Oyetenu J is hereby affirmed.

The appellant shall pay costs of N50,000 to each respondent.

Other Citations: (2016)LCN/8735(CA)

Prof. Onyebuchi Chukwu V. Peoples Democratic Party (PDP) & Ors (2016) LLJR-CA

Prof. Onyebuchi Chukwu V. Peoples Democratic Party (PDP) & Ors (2016)

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