Senator Ayogu Eze V. Peoples Democratic Party & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division, hereinafter referred to as the lower Court, delivered on the 15th day of February 2017 striking out Suit No. FHC/ABJ/C5/997/2014 at the Federal High Court sitting at Abuja, hereinafter referred to as the trial Court, for incompetence having been commenced by the appellant who lacks the locus standi to institute same.

The appellant herein, as plaintiff at the trial Court, on the 12th December 2015 filed an originating summons against the respondents, as the defendants, seeking answers to the following five questions:-

“a. Whether having regard to the decision of the Federal High Court in suit No. FHC/ABJ/CS/830/2014 between Barr. Orji Chineye Godwin & 2 Ors Vs. Peoples Democratic Party & 4 Ors delivered on the 24th November, 2014 the defendants are entitled to rely on the list of adhoc delegates other than the list sanctioned by the decision in the above case for the conduct of elections for the nomination of a governorship candidate for Enugu State at its

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primary election for that purpose.

b. Whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 85-87 of the Electoral Act 2011 (as amended), the Constitution of the 1st Defendant 2014 and the Electoral guide lines for primary elections 2014 issued by the 1st defendant, the 1st defendant could jettison, set aside, refuse to use or in any other manner ignore the result of the Ward Congresses held on 1st November, 2014 where adhoc delegates from the 260 wards of Enugu State were elected in the conduct of the primary elections to elect the governorship candidate of 1st defendant for the general elections in 2015.

c. Whether the defendants possess the right, vires and/or authority to side-track, ignore or fail to make use of the results of the ward congresses in the 260 wards of Enugu State held on the 1st November, 2014 as sanctioned and/or or recognized by the judgment of the Federal High Court in suit no. FHC/ABJ/CS/816/2014 Between Barr. Orji Chineye Godwin & 2 Ors V. Peoples Democratic Party & 4 Ors in the conduct of its primary elections for the election

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of its governorship candidate for Enugu State in the General Election of 2015.

d. Whether any candidate that emerged as the governorship candidate of the 1st defendant for Enugu State for the general election of 2015 at any purported primary election where the list of adhoc delegates used for the conduct of the purported election is based on any list other than the list emerged at the ward congresses of 1st November, 2014 can be lawful, constitutional and legitimate candidate of the 1st defendant having regard to the judgment of the Federal High Court in suit no. FHC/ABJ/CS/816/14 between Bar. Orji Chineye Godwin & 2 Ors V. Peoples Democratic Party & 4 Ors, the provisions of the Constitution of the FRN 1999, Section 87 of the Electoral Act 2010, Constitution of the 1st defendant and the guide lines for the primary election 2014 of the 1st defendant.

e. Whether the plaintiff who was duly elected with the majority of lawful votes cast at the primary election held for the 1st governorship candidate of the defendant at Enugu on 8th December, 2014 with the use of the list of adhoc delegates that emerged at the congress that were conducted on the 1st

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November, 2014 and duly sanctioned by the FHC in its judgment in suit no. FHC/ABJ/C5/816/14 Between Bar. Orji Chineye Godwin & 2 Ors V. Peoples Democratic Party & 4 Ors is the candidate whose name must be forwarded by the 1st and 2nd defendant to the 3rd defendant as their duly elected candidate to be presented at the general election of 2015.”

Anticipating the answers to the questions to be in his favour, the appellant prayed the Court for:-

“a. A DECLARATION that the defendants have no right nor authority to use any list of delegates for the conduct of its primary election for the election for its candidate for governorship primary election of Enugu State other than the list of delegates that emerged in its congresses held on 1st November, 2014 which list has been sanctioned and authenticated by the judgment of the Federal High Court of 24th November, 2014 in suit no. FHC/ABJ/CS/816/14 Between Bar. Orji Chineye Godwin & 2 Ors. Vs. Peoples Democratic Party & 4 Ors.

b. A DECLARATION that it is unconstitutional, illegal, unlawful and against the rule of law for the 1st and 2nd defendant to use and/or rely on the list of

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delegates other than the list produced from the ward congresses held on the 1st November, 2014 which was duly sanctioned, recognized and authenticated by the judgment of the Federal High Court in suit no. FHC/ABJ/CS/816/14 Between: Bar. Orji Chineye Godwin & 2 Ors V. Peoples Democratic Party & 4 Ors in primary elections conducted to choose its governorship candidate for Enugu State in the 2015 election.

c. A DECLARATION that by the combined provisions of Section 40 of the Constitution of the FRN 1999 as amended, Sections 85-87 of the Electoral Act 2011 (as amended), the Constitution of the 1st defendant and the Electoral guidelines for the primary elections of 2014, the defendants cannot constitutionally or lawfully rely on, use or employ any list of delegates for the conduct of its primary election for the governorship election of Enugu State for the general election 2015 other than the list of delegates that emerged at the ward congresses of the 1st defendant held on the 1St November, 2014.

d. A DECLARATION that any candidate that emerged from any primary election conducted for the purpose of electing the governorship candidate of the 1st

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defendant for the 2015 general elections in Enugu State where the list of delegates used was not the list of delegates that emerged from the ward congresses of the 1st defendant held on the 1st November, 2014 as recognized and sanctioned by the Federal High Court in suit no. FHC/ABJ/CS/816/14 Between: Bar. Orji Chineye Godwin & 2 Ors V. Peoples Democratic Party & 4 Ors is not the lawful not rightful candidate for the 1st defendant for the said election.

e. A DECLARATION that the plaintiff having been elected by the majority of the lawful votes cast at the primary election held on 8th December, 2014 for the election of a governorship candidate for the 1st defendant where the authentic and authenticated list of delegates for the 1st defendant held on 1st November, 2014 and sanctioned and recognized by the Federal High Court of judgment of 24th November, 2014 is the right candidate of the 1st and 2nd defendant whose name must be submitted to the 3rd defendant as their rightful candidate for the general election of 2015.

f. AN ORDER of injunction restraining the 1st and 2nd defendants either by themselves, their agents, privies, servants, officers, official or any other

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person deriving authority through them however and whatsoever from submitting, forwarding and/or tendering the name of any other person to the 3rd defendant and/or any authority as their governorship candidate for Enugu State for the 2015 general election other than the name of the plaintiff.

g. AN ORDER of injunction restraining the 3rd defendant from accepting, recognizing, acknowledging or put on the ballot the name of any person other than the plaintiff as the governorship candidate of the 1st defendant for Enugu State for the 2015 general election.

h. ANY OTHER RELIEF to which the plaintiff may be found entitled by the Honourable Court.

The originating summons is supported by a twenty one paragraph affidavit, deposed to by the appellant, annexed to which are exhibits 1 to 3 respectively. The appellant also filed 2nd, 3rd, 4th, 5th and 6th further affidavits in support of his originating summons. Various documents are annexed to the further affidavits.

Upon being served the originating summons, the 1st -2nd respondents filed a notice of preliminary objection to it and subsequently a counter-affidavit in opposition thereto.

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The 3rd respondent also filed its counter-affidavit to the originating summons.

The 4th respondent on being joined, following the order of Court in that regard, filed his preliminary objection to the originating summons in addition to his counter-affidavit in opposition.

Arguments in respect of the preliminary objections and the substantive suit were heard together by the trial Court which, in a considered judgment dated 2nd March 2015, overruled the preliminary objections, assumed jurisdiction and dismissed appellant’s suit it adjudged unmeritorious.

Dissatisfied with the trial Court’s dismissal of his suit on the merit, the appellant appealed to the lower Court in appeal no. CA/A/157/2015. Equally aggrieved, the 1st and 2nd as well as the 4th respondents appealed against the trial Court’s assumption of jurisdiction over appellant’s suit in appeals nos. CA/A/157A/2015 and CA/A/157B/2015 respectively. The lower Court considered the three appeals separately. In respect of appeal No. CA/A/157/2015, the Court affirmed the trial Court’s finding that the appellant has failed to prove his case and dismissed same.

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In allowing appeals nos. CA/A/157A/2015 and CA/A/157B/2015 the Court struck out the suit at the trial Court having been commenced by the appellant who is lacking the necessary locus standi.

Aggrieved, the appellant has appealed against these findings of the lower Court vide his notice containing seven grounds filed on the 2nd day of March 2017.

At the hearing of the appeal, counsel having identified their earlier filed and exchanged briefs, including appellant’s reply briefs, adopted and relied on same as parties’ respective arguments for and against the appeal. In the appellant’s brief settled by Yusuf Ali, SAN, filed on the 30th day of May 2017, the three issues distilled as having arisen for the determination of the appeal read:-

“1. Whether the learned Justices of the Court below were not wrong in their view and their conclusion that the Appellant has no locus-standi to initiate or institute the action, that his case was based on parallel primary of PDP when this was not the case and in striking out the case on the ground of lack of jurisdiction. GROUNDS 1, 2 & 3.

2. Whether the learned Justices of the Court below were not wrong in the very narrow and restrictive

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view they took of the case of the Appellant in agreeing with the trial Court that the case of the Appellant was based solely on the judgment of Ademola, J. in the suit No FHC/ABJ/CS/816/2014 when issues No. 2 and No. 5 agitated at the trial Court, were not based on Hon. Justice Ademola’s judgment, and in holding that the appellant’s appeal is moribund GROUNDS 4 & 5.

3. Whether the Court below did not misrepresent and set up a case for the respondents by agreeing with the Trial Court that there was an “harmonized delegates list” and thereby truncating the Appellant’s right to fair hearing and dismissing his case. GROUNDS 6 & 7.” (Underlining supplied for emphasis).

The 1st and 2nd respondents’ joint brief contains three issues the resolution of which they consider should determine the appeal as follows:-

1. Whether the learned Justices of the Court of Appeal were correct to hold that the Appellant lacked the requisite locus standi to maintain the Originating Summons not having brought his case within the contemplation of Section 87 of the Electoral Act, 2010 (as amended)
2. Whether the learned Justices of the Court of

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Appeal were correct in affirming the decision of the trial Judge to the effect that the stronghold of the Appellant’s case was the bare declaratory relief FHC/ABJ/CS/816/2014 which had been set aside by the Court of Appeal.

3. Whether the learned Justices of the Court of Appeal were correct when they held that the Federal High Court did not in FHC/ABJ/CS/816/2014 sanction the use of any list of delegates for the primary election and that Appellant’s case that the list of adhoc delegates was sacrosanct for election of the 1st Respondent’s candidate was contrary to the provisions of the 1st Respondent’s Guidelines for the Governorship election. Grounds 6 and 7.”

(Underlining supplied for emphasis).

The two issues formulated by the 3rd respondent at page 10 of its brief read:-

“1. Whether having regard to the provision of Section 87(4)(c) and 9 of the Electoral Act, 2010 (as amended) and the decisions of the Honourable Court on the scope of same, the lower Court was right in holding that the trial Federal High Court lacked the jurisdiction to hear and determine the case of the Plaintiff/Appellant.

2. Whether the Appellant can rely on the judgment of

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Ademola J. In Suit No. FHC/ABJ/CS/816/2014 Barr. Orji Chinenye Godwin & 2 Ors. Vs. Peoples Democratic Party (PDP) & 4 Ors as the basis for his claim in this case commenced by Originating Summons.” (Underlining supplied for emphasis).

The two issues formulated at paragraph 3 of the 4th respondents brief as calling for resolution in the determination of the appeal are:-

i. Having regard to the depositions in the appellant’s affidavit in support of his originating summons to the effect that he did not participate in the PDP Governorship primaries recognized and sanctioned by the PDP NWC and monitored by INEC, whether the lower Court was wrong in its decision that the appellant lacked the locus standi to institute his action at the trial Court to challenge the said primaries. (Grounds 1, 2 and 3 in the Notice of Appeal.)

ii Having regard to the case made out by the appellant before the two lower Courts, whether the lower Court was not correct in affirming the judgment of the trial Court that there was no merit in the appellant’s case and thereby dismissed same. (Grounds 4, 5, 6 and 7 in the Notice of Appeal.).” (Underlining supplied for emphasis).

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Pursuant to Sections 6(6)(a), 233 (2) (a) 233(3) of the 1999 Constitution as amended, Order 2 Rule 9 (1) of the Supreme Court Rules and the inherent jurisdiction of this Court, the 4th respondent on the 6th October 2017 filed a notice challenging the competence of grounds 4, 5, 6 and 7 in the appellant’s notice of appeal as well as issues 2 and 3 distilled from the grounds in the appellant’s brief of argument.

Learned senior counsel contends that the grounds of appeal which are at best grounds of mixed law and facts require the leave of Court obtained first before being filed. In the absence of the leave the grounds as well as issues 2 and 3 for the determination of the appeal purportedly distilled from the grounds being incompetent are liable to be struck out.

Appellant seems to have conceded 4th respondent’s objection to the competence of the grounds and the issues formulated from them for, inspite of his reply brief to the 4th respondent’s brief of argument filed on 4/4/2018 and deemed duly filed and served by order of Court on 9th April 2018, no issue has been joined in the reply brief with the objection raised and argued by the

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4th respondent on the competence of the said grounds and issues.

It is indeed trite that where an appellant requires leave of Court to file his grounds of appeal but does so without having obtained the leave of Court such grounds, unless they are grounds challenging the jurisdiction of the Court against which judgment the appeal is brought, being incompetent must be discountenanced. Incompetent grounds of appeal, I further agree with learned senior counsel Chief Wole Olanipekun for the 4th respondent, cannot give rise to competent issue. See Nalsa and Team Associates V. NNPC (1991) 8 NWLR (Pt 212) 652, Olanrewaju V. Ogunleye (1997) 2 NWLR (Pt 485) 12 and Organ and ors V. N.L.N.G. Ltd and anor (2013) LPELR-20942 (SC).

In the case at hand, grounds 4, 5, 6 and 7 in the notice of appeal, though said to be errors of law, are all founded on disputed facts. Appellant’s complaints in grounds 4 and 5 relate to the lower Court’s finding as to whether or not appellant’s action, as found by the trial Court, is built entirely on the judgment of Ademola J in suit No. FHC/ABJ/CS/816/2014 and the effect of the judgment on the claimant’s fortunes.

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Undoubtedly, the two grounds, in my firm and considered view, question the lower Court’s evaluation of evidence contained in the affidavit in support of the appellant/plaintiff’s originating summons in relation to the judgment of Ademola J. A ground that raises such a complaint is a ground of fact.

Grounds 6 and 7, learned senior counsel is correct too, are also complaints on the lower Court’s assessment of the evidence on which appellant’s suit is based. The two grounds challenge the concurrent findings of the two Courts below on the use by the 1st respondent of a harmonized delegates list in the conduct of its primary election. Again, these are also grounds of fact. Grounds 4, 5, 6 and 7 all being grounds of fact and filed without the prior leave of Court obtained are incompetent. Appellant’s 2nd and 3rd issues purportedly distilled from the incompetent issues cannot be otherwise. Learned senior counsel’s reliance inter-alia on Akeredolu V. Mimiko (2014) 1 NWLR (Pt 1388) 402 at 476 and FBN Plc V. ACB (2006) 1NWLR (Pt 962) 438 at 463 is apposite.

Accordingly, the incompetent grounds and issues are struck out.

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Resultantly, appellant’s first issue, similarly distilled by all the three sets of respondents as arising for the determination of the appeal, remains the sole extant issue. It touches on the competence of appellant’s suit and by extension the trial Court’s jurisdiction to legally and authoritatively pronounce on same. Its resolution shall determine the real issue in controversy between the parties.

On the lone issue, the facts on record, learned counsel contends, clearly show that the appellant participated in and emerged the winner of the one and only primary election conducted by the 2nd respondent, the National Working Committee of the Peoples Democratic Party, the 1st respondent. Instead of inferring appellant’s locus standi from these facts the lower Court, it is argued, based its conclusion on the non-sustainability of the judgment of Justice Ademola.

Appellant’s locus standi to prosecute his case, learned counsel further submits, lies in the clear words of the 1st respondent’s Constitution and Guidelines for the conduct of its primaries which illegalizes the primary election conducted by the Asara A. Asara led Committee. Appellant’s suit, it is argued, challenges the 1st

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respondent’s unlawful return of the 4th respondent as its candidate in the 2015 Enugu State gubernatorial election. Relying onMadukolu V. Nkemdilim (1962) ALL NLR 587, Dingyadi V. INEC (2011) LPELR-950 (SC) and UTIH V. Onoyivwe (1991) 1 NWLR (Pt 1661 156, learned counsel submits that with the trial Court being properly constituted and nothing in the appellant’s case which prevents the Court from entertaining the case as enabled by Section 87(9) of the Electoral Act as amended, the lower Court’s otherwise findings at pages 971-972 and 976-977 are perverse.

The concept of locus standi, it is also argued, is not a static one and depends on the peculiar facts of each case. Learned senior counsel relies on Ijelu & ors V. Lagos State Development and Property Cooperation (1992) NWLR (Pt 266) 414, Adesanya V. The President Federal republic of Nigeria (1981) 2 NCLR, Odeneye V. Efunuga (1990) NWLR (Pt 164) 618 and Chukwu V. INEC (2014) 10 NWLR (Pt 1415) 285. Further relying onNyako V. Ardo (2013) LPELR 20848 SC, Ogun State V. Aberuagba (1985) NWLR (Pt 3) 395, Awolowo V. Shagari (1979) 6-9 SC 51 and Ojokolobo V. Alamu (1987) NWLR (Pt 67) 377, in

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emphasizing that, notwithstanding the decision of Ademola J, the appellant having participated in the primary conducted by the 1st respondent, the clear and unambiguous words of Section 87(9) of the Electoral Act confers on him the locus standi to institute his action and obtain the reliefs he canvasses. Learned senior counsel urges the resolution of the issue in appellant’s favour and the review of his case which the two Courts wrongly adjudge unmeritorious in their concurrent judgments.

Responding on the issue learned senior counsel, Dr. Onyechi lkpeazu, for the 1st and 2nd respondents, contends that paragraphs 12, 13, 14, 15 and 16 of the affidavit in support of the appellant’s originating summons contain appellant’s clear and unmistaken admission that he did not participate in the legitimate primary election of the 1st and 2nd respondents conducted by the Electoral Panel headed by Asara A. Asara. The reliefs the appellant canvasses along with the averments in the affidavit in support of the originating summons, the originating process, learned senior counsel submits, constitute appellant’s pleadings from which he cannot resile. Relying

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on Abubakar V. Joseph (2008) 13 NWLR (Pt 1104) 307, Agu V. General Oil Limited (2015) 17 NWLR (Pt 1488) 327, American Cynamid Company V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt 171) 15 and PDP V. Sylva & ors (2012) 13 NWLR (Pt 1316) 85 at 127 learned senior counsel further submits that with such admission on appellant’s part, the fact so admitted requires no further proof. In the result, it is argued, the appellant has taken his case completely outside the purview of Section 87 (9) of the Electoral Act 2010 as interpreted by this Court. The lower Court’s inference from the facts contained in appellant’s claim, learned senior counsel maintains, cannot be faulted. Learned senior counsel urges us to uphold and apply, inter-alia, CPC V. Lado (2011) 18 NWLR (Pt 1279) 689, Ukachukwu V. PDP (2014) 7 NWLR (Pt 1435) 134 at 181 to 182, Emeka V. Okadigbo (2012) 18 NWLR (Pt 1331) 55 at 87, Emenike V. P.D.P. (2012) 12 NWLR (Pt 1315) 556 at 594 and Yar’adua & ors V. Yandoma & ors (2015) 4 NWLR (Pt 1448) 123 at 198, all decisions of this Court, in dismissing appellant’s unmeritorious appeal.

In a concise but equally forceful submission, T.M. Inuwa for

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the 3rd respondent cites the decisions in Utih V. Onoyivwe (1991) 1 SCNJ 25 at 49, Odofin V. Agu (1992) 3 NWLR (Pt 229) 350, AG Federation V. Sode (1990) 1 NWLR (Pt 128) 500 at 542 and Madukolu V. Nkemdilim (supra) in reiterating the threshold nature of jurisdiction in adjudication. Learned counsel refers to the concurrent findings of the two Courts below at pages 752-755 and 971 of the record of appeal respectively and relies virtually on all the decisions of this Court cited by learned senior counsel for the 1st – 2nd respondent in concluding that the appellant who, by his pleadings, has not brought himself within the purview of Section 87 (9) of the Electoral Act, lacks the locus to institute his action. The action being incompetent learned counsel also submits, the lower Court is right to have struck it out. Learned counsel urges the resolution of the issue against the appellant and the dismissal of his appeal too.

On the issue, Chief Wole Olanipekun SAN for the 4th respondent contends that the appellant by his affidavit sets up his case on two competing primaries. The primary election the appellant asserts he contested and emerged the winner from, it is contended, is the election conducted

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with the list of delegates purportedly sanctioned by the Federal High Court. The other primary election learned senior counsel submits, being the one conducted by the King Asara A. Asara led panel with the list of delegates approved by the 2nd respondent. Relying more particularly on Daniel V. INEC (supra) 148 at 155, Abubakar V. Yar’adua (2008) 19 NWLR (Pt 1120) 1 at 154 and Okadigbo V. Emeka (2012) 1 SCM 202 at 214, learned senior counsel further reiterates that no Court has the jurisdiction of adjudging which of the two primaries of a political party produced its candidate for an election. Which ever way the averments in the affidavit in support of appellant’s originating summons are viewed, the two lower Courts, learned senior counsel argues, cannot be faulted in their concurrent findings that the appellant lacks the locus standi of instituting his suit and that same be struck out.

Now, the place of jurisdiction in adjudication which issue the appeal particularly raises, counsel on both sides are right, cannot be over-emphasized. It is trite that the issue of jurisdiction is very fundamental and radical. It is the

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foundation, the bedrock so to say, of litigation since where it is lacking, there is want of competence on the part of the Court to try the matter. Thus proceedings of the Court embarked upon without the necessary jurisdiction, being a nullity ab initio, will be set-aside on appeal notwithstanding how well conducted same are. See Madukolu V. Nkemdilim, Onagoruwa V. State (1992)2 NWLR (Pt 221) 33 at 42(supra), Ogundipe V. Akinloye (2000) 10 NWLR (Pt 775) 312, Egunjobi V. Federal Republic of Nigeria (2012) LPELR-15537 (SC) and Gwede V. INEC & Ors (2014) LPELR-23763 (SC).

It is settled, as well, that for a Court to be competent to entertain a case, the suit must be initiated by due process of the applicable law, before a properly constituted panel and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu V. Nkemdilim (supra) at page 379, Oloba V. Akereja (1988) 3 NWLR (Pt 84) 508, SLB Consortium Ltd V. Nigeria National Petroleum Corporation (2011) 5 SCM 187 and Chief S.S. Obaro V. Alhaji Sale Hassan (2011) 5 SCM 187 and Chief S.S. Obaro V. Alhaji Sale Hassan (2013) LPELR-20089 (SC).

Again, where a plaintiff’s locus standi to maintain an action

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is challenged, it is the plaintiffs claim that determines the objection. If, however, the action is commenced by an originating summons it is the averments in the affidavit in support alone that is examined in determining whether or not the Court is competent to proceed. See lzenkwe V. Nnadozie 14 W.A.C.A. 351 at 353, Adeyemi v. Opeyori (1976) 9-10 5C 31 at 51 and Tukur V. Government of Gongola State (1989) LPELR-3272 (SC).

It is also trite that a finding of a Court against which there is no appeal remains binding and conclusive. In the instant case, the trial Court’s finding that appellant’s suit is not founded on two primary elections, which finding has not been appealed against at the lower Court, persists even in this Court. It follows that it is only the trial Court’s finding that appellant’s action rests on a single primary election of the 1st respondent as reviewed by the lower Court that forms the subject matter of the instant appeal. See Dabup V. Kolo (1993) LPELR-905 (SC) and Awodi & anor V. Ajagbe (2014) LPELR-24219 (SC).

Now, paragraphs 12, 13, 14, 15 and 16 of the affidavit in support of appellant’s originating summons are

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hereinunder reproduced for their relevance and ease of reference:-

“12. That when the Committee set up by the 1st Defendant and led by King Asara A. Asara to conduct the said primaries from Abuja got to Enugu State, I as an aspirant demanded for the list of the delegates sent from Abuja, I was denied, as same was not shown to me.

13. That I know as a fact that the King Asara in turn demanded for a copy of my own list of ad hoc delegates which was sanctioned by the Federal High Court and I duly obliged him with same.
14. That I know as a fact that on giving him the list of the ad hoc delegates that emerged on the 1st of November, 2014 and sanctioned by the Federal High Court, he informed me that the list they brought from Abuja was different from the one I gave him which I earlier deposed was sanctioned by the judgment of the Federal High Court.
15. That I know as a fact that the Governorship primary was conducted based on the list of the ad hoc delegates sanctioned by the Federal High Court and I emerged as the 1st defendants governorship candidate for the 2015 General election in Enugu State having polled a total 530 votes out of 661

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lawful votes cast. A copy of the said result is attached and marked as Exhibit 2.

16 That I also know as a fact that another primary was purportedly conducted based on a strange list of delegates brought by king Asara and another candidate purportedly emerged as the governorship candidate of the 1st Defendant. (Underlining supplied for emphasis).

The trial Court in relation to the foregoing averments held, contrary to the seemingly endless decisions of the lower Court and this Court, at page 702 of the record thus:-

“……so one will ask based on the originating summons and the supporting affidavit, does this Court have the jurisdiction to entertain this matter, my obvious answer will be in the affirmative and I so hold affirmative and l so hold.

In coming to this decision I will place reliance on my unreported decision in suit No. FHC/ABU/CS/782/2014…… where in unequivocal terms. I stated that matters within the domestic affairs of the party are not justiciable but where it relates to the party obeying and complying with the provisions of its Constitution, Electoral Act and Electoral Guidelines, the Court must intervene to

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enforce strict compliance under Section 87 of the Electoral Act 2010.

In effect I hold that I have the jurisdiction to entertain this suit and the preliminary objection of the 1st and 2nd defendants are accordingly dismissed.

After assuming jurisdiction, the trial Court at page 752 of the record of appeal, in a most untidy manner, recommenced its evaluation of the very content of the supporting affidavit to appellant’s originating summons it has found does not render appellant’s suit incompetent thus:-

“The said paragraphs of the plaintiff affidavit in no small measure bears out the reason for the plaintiff’s grouse. But one thing is clear that the plaintiff remained silent on the role King Asara A. Asara performed after exchange of list of delegates. In paragraph 15 of his affidavit he stated that he won the primaries as he puked (sic) a total of 560 votes out of 661 lawful votes cast. He annexed the result as Exhibit 2. In paragraph 16 he now alleged that he knew that another primary took place and another candidate emerged as the governorship candidate but that it was based on the strange

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list of delegates brought by King Asara A. Asara.

One will ask in the one he won was it conducted by any member of the PDP either from the State or National body. The one he allegedly declared that was won by another candidate who conducted it and did he take part in it. lf yes how many votes did he pull (sic)……. lf the answer to these questions are in the affirmative then the case of the plaintiff falls within the purview of Section 87(9) of the Electoral Act 2010 as amended but if no then definitely it is outside the purview of the said Act and ordinarily the suit will become unjusticiable. lf justiciable then it will be settled as parallel election and different considerations will apply.”

Sinking irretrievably deeper, the trial Court proceeded at page 733 thus:-

“ln answering the questions, I will consider the counter affidavits of the defendants……… The cumulative effect of the said averments is that there was only one delegate (sic) which the National Executive Committee organise…….. Secondly, that this Court never sanctioned, authenticated and approved any delegate list in preference to any

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other one in suit No. FHC/ABU/CS/861/2014….. In the end, the plaintiffs case fails in its entirety and it is accordingly dismissed.”

The lower Court, at pages 971-972 a4d 976-977 of the record, on the other hand, held firstly as follows:-

“A cumulative or community reading of the paragraphs of the said Affidavit glaring shows that the Appellant did NOT TAKE PART AND DID NOT PARTICIPATE IN THE PDP Gubernatorial Primaries conducted by HRH KING ASARA A. ASARA Electoral Panel mandated by the 1st and 2nd Respondents to conduct the said Governorship Primary Election to elect the Governorship Candidate of PDP for Enugu State on 8/12/2014 whereat the 4th Respondent emerged as the Governorship Candidate of 1st and 2nd Respondents for the General Elections conducted by 3rd Respondent in 2015.

All the appellant has succeeded in doing in this Suit is that he has wittingly or unwittingly completely taken himself out of the purview of Section 87(4)(b)(i) (ii) and 87(9) of the Electoral Act 2010 as amended and thus has no locus standi to institute or maintain the action herein against any of the Respondents. In other words the limited jurisdiction of

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the Court under Section 87 of the Electoral Act 2010 as amended cannot be invoked in Appellants favour. It does not enure for the benefit of the Appellant since he was neither an aspirant nor a participant at the Primary Election organized by the 1st and 2nd Respondent.

……….I hereby hold that the Appellant lacked the locus standing to initiate or institute this action and the lower Court and this Court have no jurisdiction to entertain this Suit since it borders on the Gubernatorial Primary Election of PDP conducted under the aegis of 1st and 2nd Respondents to select his flag bearer for the Office of Governor in 2015 General Elections and in which Appellant did not participate.”

(Underlining supplied for emphasis).

The lower Court rationalized further at pages 978-979 of the record of appeal thus:-

“One does not begin to look at a statement of Defence or examination of counter affidavit against the affidavit in support of originating summons to determine the pivotal questions relating to jurisdiction of the Court. The perfect, settled and immutable position of the law is that the Court seised

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of the matter must confine itself to scrupulous examination of the writ of summons and statement of claim in order to determine whether or not the Court has jurisdiction to adjudicate on the Plaintiff’s or Claimant’s suit. Where as in this case it is an action begun by originating summons the processes to be examined are the originating summons and the Affidavit of the Plaintiff in support of the originating summons and no other document(s). See (1) PDP VS SYLVA & ORS (2012) 13 NWLR (PART 1316) 85 AT 127 D-F where the apex Court per BODE RHODES-VIVOUR, JSC held.” (Underlining supplied for emphasis).

In the foregoing, not only has the lower Court bound itself to the superior authority of the apex Court in this country in arriving at the correct decision, it further dwelt on the decisions of the Court to clearly indicate where the trial Court faltered.

The instant appeal is against the findings of the lower Court which draws from all the earlier decisions of this Court alluded to by counsel as being appropriately applied, for their being apt, to the facts and legislation in issue. That is what the doctrine of stare decisis or precedent is all about.

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The doctrine requires all subordinate Courts to subsequently follow the earlier decisions of this Court. A lower Court, therefore, would be impertinent to refuse to be bound by the earlier authoritative pronouncements of this Court on same or similar issues it is asked to subsequently determine. Being the foundation on which the consistency of our judicial decisions rests, an inferior Court’s decision in clear breach of the doctrine, being perverse, will be set aside on appeal. See Olu of Warri V. Kperegbeyi (1994) 4 NWLR (Pt 339) 414, N.A.B. Ltd V. Barri Engineering Nig Ltd (1995) 8 NWLR (Pt 413) 247 at 289, Osagie II V. Offor (1998) 3 NWLR (541) 205 and Dalhatu V. Turaki (2003) 15 NWLR (Pt 843) 310 at 350.

In the case at hand, the crucial facts on which the appellant seeks redress pursuant to Section 87(4) and (9) of the Electoral Act as amended are as contained more particularly in paragraphs 15 and 16 of his supporting affidavit earlier reproduced in this judgment. The lower Court’s inference from these paragraphs that appellant’s dissatisfaction, with the emergence of the 4th respondent as 1st respondent’s governatorial candidate, is in relation

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to the primary election conducted on the basis of a delegate list sanctioned by the Federal High Court in its decision in suit no. FHC/ABJ/CS/80/2014, rather than the King Asara A. Asara led primary election of the 1st respondent conducted by the 2nd respondent, is beyond reproach. The fact as so held, excludes the appellant from being a participant in the very primary election that produced the 4th respondent as the Enugu State Gubernatorial Candidate of the 1st respondent, which fact the appellant purports, by his action, to contest. This Court on the basis of the very fact maintains, in the many decisions of this Court the lower Court resorted to and applied, that the platform created by Section 87 (4) (b)(i)(ii) and (9) of the Electoral Act 2010 (as amended) enures only to an “ASPIRANT”, which term, by Section 156 of the Act means a person who partook in the very primary election of the party with which conduct he is dissatisfied.

In the case at hand the lower Court, contrary to what the trial Court wrongly held, on finding that the relevant averments in the affidavit in support of appellant’s originating summons have taken him outside the purview

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of Section 87(4) and (9) of the Electoral Act 2010 as amended, rightly concludes that the appellant, not being an “ASPIRANT” in the primary elections he challenges, lacks the locus standi to pursue the reliefs he seeks by the instant suit. In failing to place his case within the con of the enabling law his suit is not, therefore, justiciable. In Daniel V. INEC (2015) 9 NWLR (Pt 1463) 113 at 148, 155 this Court particularly held thus:-

“…It amounts to inverse reasoning for a party who says he scored the highest number of votes in a primary election, he says he never participated in to expect a Court to consider his claims after he has taken such a stance… The stance taken by the appellant makes further consideration of his claims a worthless exercise… No reasonable Court can do anything to assist such a slippery claimant. Refer to Ajide V. Kelani (1985) 3 NWLR (Pt 12) 248.”

The foregoing decision and numerous others still bind not only the lower Court but this Court as well. Arising from this reality, the overwhelming issue in the appeal is accordingly resolved against the appellant and his unmeritorious appeal dismissed. The lower Court’s

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unassailable judgment is hereby affirmed. The appellant shall pay the costs of the appeal assessed at one million naira (N1,000,000.00k) to the 4th respondent .

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SC.248/2017