Uba V. Ozigbo & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Awka Judicial Division, holden at Enugu and delivered on 3rd September, 2021 wherein the Court below set aside the judgment of O. A. Nwabunike, J of the High Court of Anambra State in suit No. A/230/2021 between Senator Ugochukwu Uba (Appellant herein) v INEC & 2 Ors. By virtue of the judgment delivered by Nwabunike, J aforementioned on 19th July, 2021, the 1st Respondent herein filed an appeal at the lower Court which culminated in the judgment of the lower Court delivered on 3rd September, 2021 allowing the appeal and setting aside the said judgment of Anambra State High Court. A summary of the facts of the case giving birth to this appeal as captured by the Court below may be stated as hereunder.

​By an originating summons dated the 5th day of July, 2021 and filed same date, the Appellant herein contended that his faction of the Peoples Democratic Party conducted a primary election on the 26th of June, 2021 at Paul University, Awka, Anambra State, pursuant to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 9th of June, 2021 by Honourable Justice O. A. Adeniyi in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 24th of November, 2017 and 1st December 2017, under the supervision of Sir Chukwudi Umeaba (Acting State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors. That the Appellant contended that the primary election by that faction of Peoples Democratic Party produced him as the winner of the primary election.

That the Appellant further contended that the Governorship primary election conducted by the National Executive Committee of the Peoples Democratic Party (3rd Respondent) at the Professor Dora Akunyili Women Development Centre, Awka on the 26th of June, 2021 under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) in which the Appellant won the majority of lawful votes cast and was duly nominated and elected as the candidate of the 3rd Respondent (P.D.P.) and the flag bearer for the forthcoming governorship election scheduled for the 6th of November, 2021 by the 2nd Respondent (INEC) was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A. Adeniyi on 9th of June, 2021 in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting Chairman, State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors.

​That the primary election conducted by the National Executive Committee of the 3rd Respondent in which the Appellant was elected the candidate of the party was conducted in substantial compliance with the 1999 Constitution (as amended), the Electoral Act 2010 (as amended), as well as the Constitution of the 3rd Respondent. The 2nd Respondent (INEC) monitored the exercise and duly issued a report affirming the due conduct of the primary. It is this primary election that was conducted by the National Executive Committee of the 3rd Respondent under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) that the learned trial Judge in his judgment, held as being in disobedience to the order of O. A. Adeniyi J, of the High Court of the Federal Capital Territory, Abuja.

That based on the foregoing, the Appellant sought the determination of the questions on the originating summons and prayed the High Court as follows:-

“i. A declaration that the Governorship Primary Election conducted by the Peoples Democratic Party on 26th June, 2021 at Paul University, Awka, Anambra State, pursuant to:

a. Judgment of High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A Adeniyi on 9th of June, 2021 in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward executives who emerged from the Anambra P.D.P. Congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors.

b. The Ruling delivered on 23rd June, 2021 in the same suit.

c. The 1st Defendant’s letter dated 22nd June, 2021 (with reference number INEC/LEG/LM/04/T/131) signed by the secretary to the 1st defendant.

d. Section 87(7) of the Electoral Act 2010 (as amended).

e. And Section 50(1) of the PDP Constitution (as amended), which produced the plaintiff as the winner of the election is valid, lawful, proper and binding on all the defendants and other members of the 2nd defendant’s party.

ii. A Declaration that the alleged Governorship Primary election of the 2nd defendant purportedly held on the 26th of June, 2021 at the Professor Dora Akunyili Women Development Centre, Awka, which was held

a. In disobedience to judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Honourable Justice O. A. Adeniyi on 9th of June 2021 in suit No, HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area chairmen and ward executives who emerged from the Anambra PDP congresses conducted on the 28th of November, 2017 and 1st December, 2017, under the supervision of Sir Chukwudi Umeaba as acting chairman, State caretaker Committee) v PEOPLES DEMOCRATIC PARTY (PDP) & 2 Ors.

b. In disobedience to the Ruling delivered on 23rd June, 2021 in the same suit.

c. In disregard to the 1st defendant’s letter dated 22nd June, 2021 (with reference number (INEC/LEG/LM/04/131) signed by the secretary to the 1st defendant.

d. In violation of Section 87(7) of the Electoral Act 2010 (as amended).

e. And Sections 25 & 50(1) of the PDP Constitution (as amended),

unlawful, invalid, improper and a violation of Section 87 (7) of the Electoral Act, 2010 (as amended) and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended).

iii. A Declaration that it is unlawful and illegal for the 3rd defendant, whether by himself, agents and or proxies to parade and or continue to parade himself or allow himself to be paraded as the Governorship candidate of the 2nd defendant for the purpose of the Governorship election fixed to hold on 6th November, 2021 in Anambra State, to elect the Governor of Anambra State.

iv. A Declaration that any certificate of return issued by the 2nd defendant to the 3rd defendant as the Governorship candidate of the 2nd defendant, for the purpose of contesting the Governorship election to elect the Governor of Anambra State fixed to hold on 6th November, 2021 is null and void and of no effect whatsoever.

v. An Order compelling the 2nd defendant to forward, send or present the name of the plaintiff to the 1st defendant as the rightful person elected at its Governorship primary election, which was held on 26th June, 2021 at Paul University, Awka, Anambra State, as the Governorship candidate of the 2nd defendant, for the Governorship election fixed to hold in Anambra State on 6th November, 2021, to elect the Governor of Anambra State.

vi. An Order compelling the 1st defendant to recognize, accept, adopt, receive and put the name of the plaintiff as the Governorship candidate of the 2nd defendant’s party in the list of candidates of political parties eligible to contest the Governorship election slated to hold on 6th November, 2021, to elect the Governor of Anambra State.

vii. An Order of perpetual injunction, restraining the defendants jointly and severally whether by themselves, cronies, allies or representatives from parading, holding out or representing the 3rd defendant or any person whatsoever other than Senator Ugochukwu Uba, as the Gubernatorial candidate of the 2nd defendant in the Anambra State Governorship election slated for 6th November, 2021.

viii. Cost of this action in the sum of Fifty Million Naira (N50,000,000.00) only.

That the Appellant raised a preliminary objection to the jurisdiction of the learned trial Judge, Nwabunike (J) over the matter and the locus standi of the plaintiff to institute the action. The learned trial Court dismissed all preliminary issues raised and held as follows:-

i. That the Honourable Court is imbued with jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended);

ii. That the 1st Respondent is an Aspirant under the extant provisions of Section 56 of the Electoral Act 2010 (as amended);

iii. That the 1st Respondent has the requisite locus standi to initiate this action before the trial Court;

iv. The suit of the 1st Respondent was properly commenced under the originating summons;

v. That the Primary election conducted at Paul University by the State chapter of the People’s Democratic Party in which the 1st Respondent emerged winner was authentic and valid simply because it was conducted in obedience to a Court order;

vi. The learned trial Judge granted all the reliefs sought by the Appellant in the originating summons and consequently ordered the Independent National Electoral Commission to list the 1st Respondent as the candidate of the People’s Democratic Party (3rd Respondent) in the forthcoming Anambra State Governorship election scheduled for the 6th of November, 2021.

vii. The learned trial Court awarded the cost of N10,000,000.00 (Ten Million Naira only) against the Respondent.”

Irked by the said judgment of the learned trial Judge, the 1st Respondent appealed against same to the Court of Appeal. The Court below allowed the appeal and set aside the judgment of the trial Court; validated the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka and certified the 1st Respondent as the validly nominated candidate of the 3rd Respondent, the People’s Democratic Party for the governorship election slated for Anambra State on 6th November, 2021.

​Dissatisfied with the judgment of the lower Court, the Appellant filed notice of appeal on 15/9/2021 which said notice contains 21 grounds of appeal out of which appellant has distilled six issues for the determination of this appeal. The six issues are reproduced as follows:-

1. Whether the lower Court was right to have set aside the decision of the trial Court, which struck out the 1st Respondent’s preliminary objection and proceeded to uphold the same preliminary objection in its judgment.
2. Whether the decision of the lower Court is not contradictory, erroneous, presumptuous, perverse, speculative and against the record.
3. Whether the lower Court erred in law and acted without jurisdiction when their Lordships failed to abide by the Supreme Court’s decision in SKENCONSULT NIGERIA LIMITED & ANOR V GODWIN SEKONDY UKEY (1981) LPELR – 3072 (SC) page 19 – 20 paragraphs E – A, which requires them to strike out the 1st Respondent’s Notices of Preliminary Objection filed at the trial High Court, for non compliance with the mandatory provisions of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
4. Whether the lower Court ought to have set aside the judgment of the trial Court, endorsed Respondent’s disobedience, reprimand the Appellant and trial Court’s respect for the then valid and subsisting judgments/orders of the FCT High Court in suit No, FCT/HC/CV/774/2021 – Samuel Anyakorah v Peoples Democratic Party and 2 Ors (coram: Adeniyi, J) merely because the said judgment was subsequently set aside by the lower Court.
5. Whether the lower Court erred in law and thereby occasioned a miscarriage of justice, when the Court denied the Appellant’s locus standi to commence the suit.
6. Whether the lower Court was right to have suo motu, and without any counter claim before it, granted declaratory reliefs and positive orders validating the primary election held at the Professor Dora Akunyili Women Development Centre and awarded exemplary damages of N10,000,000 against the appellant.

In the brief of argument settled by Alex Ejesieme, SAN on behalf of the 1st Respondent, two issues are formulated for determination. I shall reproduce them here as follows:-

1. Whether the learned Justices of the Court of Appeal were correct in holding that the appellant lacks the locus standi to incept this action ab initio.
2. Whether the learned Justices of the Court of Appeal were correct in setting aside the judgment of the trial Court.

The second respondent’s brief was filed by Oluwole Osaze Uzzi, Esq on 18th October, 2021 in which three issues have been crafted thus:-

1. Whether the Court of Appeal was right to have set aside the decision of the trial Court which held that the 1st respondent’s Preliminary Objection was a writ and accordingly struck it out for non compliance with Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
2. Whether the lower Court erred when it held that the Appellant had no locus standi to institute this action and that the Court does not have jurisdiction to entertain same.
3. Whether the lower Court was right in making the consequential order validating the Governorship primary election conducted by the 1st Respondent (sic) and which produced the 1st Respondent (Ozigbo) as the winner and its candidate at the Anambra Governorship election 2021.

For the 3rd Respondent, Emmanuel Enoidem, Esq., settled its brief of argument. In the said brief filed on 18th October, 2021, learned counsel donated four issues for determination. They are:-

1. Whether the lower Court was not right in holding that the Appellant who did not participate in the governorship primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka on June 26, 2021, did not have the locus standi to challenge the said primary election.
2. Whether the lower Court was not right in setting aside the judgment of the trial Court which dismissed the 3rd Respondent’s preliminary objection on the ground that same was a writ of summons within the meaning of Sections 95 and 97 of the Sheriffs and Civil Process Act, 2004.
3. Whether the lower Court was not right in setting aside the judgment of the trial Court for being holistically predicated on the judgment of His Lordship, Adeniji J in suit No. FCT/HC/CV/774/2021: Anyakorah v PDP & Ors and for being delivered in violation of the hallowed doctrine of stare decisis based on the established facts of this case as borne out by the record in this appeal.
4. Whether the Appellant has made any case against the judgment of the lower Court as being “contradictory, erroneous, presumptuous, perverse, speculative and against the record” in any way and whether such defect(s), if any, is capable, in the circumstances of this case, of invalidating the said judgment.

My Lords, after a careful perusal of the judgment of the Court below, particularly the facts of this case and the case law on the issue of party primaries as espoused by this Court in several cases, and having carefully considered all the issues placed before this Court by all counsel, it is my well considered opinion that this appeal can safely and conclusively be determined based on the two issues as crafted and donated by the learned senior counsel for the 1st Respondent. I propose, in the circumstance to determine this appeal on the said two issues. Having already reproduced them earlier in this judgment, I do not intend to repeat the exercise except as I may refer to specific aspects in the course of this judgment.

ISSUE ONE:-

For clarity, the question in this issue is whether the Court below was right in holding that the appellant lacked the locus standi to incept this action ab initio. This is also Appellant’s issue number five in his brief of argument.

​In his argument, the learned counsel for the Appellant, Adewole Adebayo, Esq, as directed by Assam Assam, SAN, submitted that their Lordships of the lower Court erred in law and thereby occasioned a miscarriage of justice, by upsetting the findings of the trial Court that the Appellant possessed the requisite locus standi to commence the suit. That the Court below ignored the peculiar facts and circumstances of this case, including the totality of material facts/documentary evidence placed before it, to arrive at the wrong conclusion that the Appellant lacked the locus standi to commence this suit.

​The learned counsel further submitted that the issue of locus standi was considered at an interlocutory stage, and that the Appellant did not at any time rely on the counter affidavit of the 1st Respondent to establish his locus standi, but in opposing the 1st Respondent’s notices of Preliminary Objection to point out the irreconcilable evidence in support of the 1st Respondent’s preliminary objection which shows that Appellant was an aspirant who participated in the said primary election. It was not a case of changing the case of the appellant made as plaintiff before the trial Court. He opined that the lower Court therefore occasioned a miscarriage of justice when it wrongly concluded that the Appellant changed his case mid-way and relied on the weakness of the defence to prove his case.

The learned counsel for the Appellant submitted further that there is ample affidavit and documentary evidence supporting the Originating Summons that the Appellant complied with the judgment of Adeniyi, J and relevant provisions of the Electoral Act and PDP constitution, in participating in the primary election whereof he emerged winner. That there is no evidence before the trial Court as presented in the defence of respective Respondents to the Originating Summons that they complied with the judgment of Adeniyi J, or the relevant provisions of the Electoral Act and PDP constitution in participating in the primary election conducted at Professor Dora Akunyili Women Development Centre. Also that the admissions by the PDP of claims in the originating summons only corroborated the sufficiently led evidence by the Appellant that he successfully emerged as candidate of the PDP for the imminent election.

​Learned counsel then urged this Court to resolve this issue in favour of the Appellant and hold that the lower Court ought not to have set aside the judgment of the trial Court which held that plaintiff has established his locus standi as an aspirant.

​In response to this issue, the learned Senior counsel for the first Respondent, Alex Ejesieme, SAN, submitted that from the 30 paragraphs affidavit of the Appellant herein in support of his Originating Summons which incepted this action at the trial Court, it is crystal clear that the Appellant did not participate in the primary election conducted by the National Executive Committee of the PDP and as a result, he cannot be classified as an “Aspirant” imbued with locus standi to challenge the primary election in which he did not participate. That Section 87 (9) of the Electoral Act, 2010 (as amended) gives a very narrow compass only to an aspirant who participated in the primary election organized by the National Executive Committee of the party. He stressed that it is the act of participation that gives an aggrieved party the right to challenge the outcome of the primary election and that without evidence of participation; the purported aspirant is a total stranger without the requisite locus standi to challenge the primary election, relying onEze v PDP (2019) 1 NWLR (pt 1652) 23, PDP v Sylva (2012) 13 NWLR (pt 1316) 85, Lado v CPC (2011) 18 NWLR (pt 1279) 689, Shinkafi v Yari (2016) 7 NWLR (pt 1511) 340, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556.

​The learned Silk contended that the argument canvassed by the Appellant to the effect that he participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre on the 26th of June, 2021 does not fly. That appellant’s reliance on the result of the primary election conducted by the 3rd Respondent at the said Women Development Centre which was exhibited by the 1st and 3rd Respondents in their respective affidavits is of no moment. That the claim was made simply because his name appeared on the said result sheet and based on this, that the appellant has the requisite locus standi to incept this action as an “Aspirant” under Section 87 (9) of the Electoral Act, 2010 (as amended). It is his argument that the appellant made these conscious but futile efforts to change the template of his case at the appellate level especially after the Court of Appeal, Abuja Division in Appeal No. CA/A/359/2021 delivered on the 29th of July, 2021 set aside the forum shopped judgment of Adeniyi J of the FCT High Court, Abuja which was the stanchion upon which the judgment of the trial Court in this instant appeal was predicated. He submitted that a party is not permitted on appeal to change the case he made at the trial Court since an appeal is simply the continuation of the case he put forward in the Court of first instance, citing and relying on I.M.N.L. v Pegofor Nig. Ltd. (2005) 15 NWLR (pt 947), Oriorio v Osain (2012) 16 NWLR (pt 1327) 560.

Furthermore, that the Respondents did not admit that the Appellant was an aspirant in the vexed primary election. That for an admission to be valid, it must be clear, precise and unambiguous, referring to CAPPA D’ALBERTO v Akintilo (2003) 9 NWLR (pt 824) 68 – 69.

​Again, he contended that bearing in mind that the principal relief sought by the Appellant before the trial Court was a declaratory relief, the Appellant has an onerous duty leading positive evidence to establish his case and not to rely on the weakness of the opponent’s case, citing Bello v Ayoola (1984) 11 SC 72 at 14, Oduah v Okadigbo (2019) 3 NWLR (pt 1660) 460.

Referring to several paragraphs of the Appellant’s affidavit in support of the Originating Summons and the counter affidavit of the 1st Respondent, the learned Silk concluded that the Appellant failed to show that he had locus standi to incept this action, He urged this Court to so hold and resolve this issue against the Appellant.

The second respondent, through her counsel, Oluwole Osaze-Uzzi, Esq, submitted in tandem with the 1st Respondent that the Appellant herein lacked the locus standi to incept this matter at the trial Court and that the Court below was right to set aside the judgment of the trial Court in the circumstance. Relying on Emenike v PDP (2012) 12 NWLR (pt 1315) 556, Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 51 and Odedo v PDP (2015) LPELR – 24738 (SC), learned counsel stressed that these cases arose out of PDP primaries in Anambra State and wondered why the Appellant has not learnt the simple political lesson that only a primary election conducted by the National Executive Committee of a political party is cognizable by law. He urged the Court to hold that the Court below was right in holding that the Appellant, having not taken part in the said primary election, lacks the locus standi to institute the action vide Section 87 (9) of the Electoral Act, 2010 (as amended). He also urged this Court to resolve this issue against the Appellant.

For the third Respondent, her counsel, Emmanuel Enoidem Esq, submitted, in the main, that in the determination of the question whether or not a party has locus standi, it is the originating process, as in the instant case, the originating summons and the supporting affidavit that must be interrogated. That throughout the entire gamut of his case as encapsulated in his originating summons and the 30 paragraph affidavit, the Appellant never claimed to have taken part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. Learned counsel relied on the cases of Odimegwa & Ors v Ibezim & Ors (2019) LPELR – 46939 (SC), Dopah v Registered Trustees UMCN (2019) 4 NWLR (pt 1663) 520, Nyesom Wike v Peterside & Ors (2016) 1 – 2 SC (pt 1) 37, Eze v PDP (2018) LPELR – 44907 (SC) at page 22 – 23 F-B.

Referring to certain paragraphs of the affidavit in support of the originating summons, learned counsel submitted that contrary to his case at the trial Court, the Appellant through his brief embarked on a summersault and claimed that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. It is his contention that a party must be consistent in stating his case. That Courts will not allow a party to approbate and reprobate, relying on Comptroller General of Customs & Ors v Comptroller Abdullahi B. Gusau (2017) LPELR – 42081 (SC); Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508 paragraphs A – E.

Learned counsel contended that the appellant, having not taken part in the recognized primary election of the 3rd Respondent, he lacks the locus standi to approach the Court for redress vide Section 87 (9) of the Electoral Act (as amended). He urged the Court to resolve this issue against the Appellant.

RESOLUTION

The fulcrum of this appeal, particularly, this issue, as can be gleaned from the Originating Summons which gave birth to this action, is the dispute as to the authenticity of the two primary elections of the Peoples Democratic Party conducted on 26th June, 2021. The Appellant herein obtained a judgment by Adeniyi J of the High Court of the Federal Capital Territory delivered on 9th June, 2021. Armed with that judgment, the appellant proceeded to conduct an illegal and factional primary election at Saint Paul’s University, Awka on the date aforementioned. The Appellant claimed he won the said primary election which did not have the blessing of the National Working Committee of the 3rd Respondent. It also did not have the supervisory coverage of INEC, the 2nd Respondent herein.

​Contrariwise, even the appellant acknowledged that the 1st Respondent participated in the primary election conducted at the Professor Dora Akunyili Women Development Centre, Awka on the same date in which the 1st Respondent emerged winner. The 1st Respondent and the evidence show a consistency that it was the National Executive Committee of the PDP (3rd Respondent) that organized the governorship primary election in which the 1st Respondent emerged victorious and was duly nominated and returned as the governorship candidate of the PDP for the forthcoming Anambra State Governorship election scheduled for 6th November, 2021. However, the Appellant had contended that this primary election organized at the instance of the National Executive Committee of the 3rd Respondent (PDP), was conducted in disobedience to the judgment of the High Court of the Federal Capital Territory, Abuja.

My Lords, I note that from the affidavit of 30 paragraphs in support of the Appellant’s originating summons, at the trial Court, the Appellant did not in any way whatsoever state that he participated in the primary election conducted at the instance of the National Executive Committee of the 3rd Respondent on 26th June, 2021 held at Professor Dora Akunyili Women Development Centre Awka. In fact he described the said primary election as “illegal” and “unlawful”.

​At the lower Court, the Appellant, contrary to his case at the trial Court decided to use his brief of argument to embark on a summersault by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. Having regard to the circumstances of this case, can it be said that the Appellant took part in the 3rd Respondent’s primary election held on 26th June, 2021 at Professor Dora Akunyili Women Development Centre, Awka, so as to imbue him with locus standi to challenge the said election as prescribed in Section 87 (9) of the Electoral Act, 2010 (as amended)? To this, the Court below, at pages 123 – 125 of the record made the following far reaching findings and conclusion:-

“It is no wonder that the 1st Respondent, in full recognition of the impact of the judgment of the Court of Appeal on his position in this case as stated in the Originating Summons before the trial Court has in paragraphs 4.2.7 to 4.2.12 of his Brief of argument tried to embellish the facts averred in the affidavit in support of his originating summons and change the narrative by advancing new facts not contained therein nor in his further affidavit. Now relying on the result of the primary election conducted by the 3rd Respondent (PDP) at Professor Dora Akunyili Women Development Centre, which was exhibited by the 3rd Respondent to his counter affidavit, he contended for the very first time that in addition to taking part in the primary election at the Paul University, Awka, he also participated in the said Governorship primary election simultaneously held at Professor Dora Akunyili Women Development Centre, Awka, where the Appellant emerged as winner and candidate for the Governorship election of Anambra State. It is significant that this is the same election which the 1st Respondent had strongly degraded before the trial Court as well as before this Court, contending that it was conducted in flagrant “disobedience” to the judgment of the Federal Capital Territory High Court in Exhibits C1 and C2; and so he had prayed the trial Court to declare it as invalid, improper and a violation of Section 87(9) of the Electoral Act and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended) a prayer which the trial Court acceded to … Thus, the judgment of Adeniyi J, of the Federal Capital Territory High Court having been declared null and void, the 1st Respondent quickly jumped ship to claim that he was actually a contestant who participated in the primary election conducted by the 3rd Respondent (PDP) at the Professor Dora Akunyili Women Development Centre. This new advocacy is however not borne out by the originating summons and the affidavit in support, which are the only documents that can be examined to determine the locus standi of a party. He is not allowed to rely on the processes of the defendants to the action to establish his locus standi, to approach the trial Court. Thus, the 1st Respondent’s reliance on the result sheet of the primary election exhibited to the counter affidavit of the 3rd Respondent cannot assist him, because by law, it does not avail him in establishing locus standi.”

In agreeing with the Court below as reproduced above, it is my view that the findings are unassailable. Section 87 (9) of the Electoral Act, 2010 (as amended) is very clear and states thus:-

“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 the FCT for redress.”

The above provision of the Electoral Act is very clear and unambiguous. It is not the business of any Court to select or nominate candidates for any political party for election. The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not have jurisdiction to decide who should be sponsored by a political party as a candidate in an election. See Onuoha v Okafor (1983) 2 SCNLR 244, Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310, Shinkafi & Anor v Yari & Ors (2016) LPELR – 26050 (SC) page 57 paragraphs A – D, Olofu & Ors v Itodo & Anor (2010) 18 NWLR (pt 1225) 545. The above position has been the law and has not changed because issue of selection and/or nomination of a candidate for an election is strictly within the domestic jurisdiction or power of political parties.

​Notwithstanding the position stated above, Section 87 (9) of the Electoral Act, 2010 (as amended) has created a narrow compass of sort for an aggrieved candidate who took part in a primary election to select a candidate for an election. Under the said provision, where a political party nominates a candidate for an election contrary to its own constitution, rules and guidelines, a dissatisfied candidate who actually participated in the primaries is empowered to approach the Courts enumerated therein for redress. In such situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party fully complied with relevant laws and guidelines governing the nomination of its candidates.

But before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended), and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form, was screened and cleared to participate in the primaries but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87 (9) of the Electoral Act (supra). See Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Alahassan v Ishaku & Ors (2016) LPELR – 40083 (SC), Emeka v Okadigbo (2012) 18 NWLR (pt 1316) 553, Shinkafi v Yari (supra), Jev & Anor v Iyortyom & Ors (2014) 14 NWLR (pt 1428) 575, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Eyiboh v Abia & Ors(2012) 16 NWLR (pt 1325) 51, Odedo v PDP & Ors (2015) LPELR – 24738 (SC), Lado v CPC (2011) 18 NWLR (pt 1279) 689, PDP v Sylva & Ors (2012) 13 NWLR (pt 1316) 85.

Let me state emphatically that for a candidate’s complaint to come within the narrow compass of Section 87 (9) of the Electoral Act (supra), the aspirant must show to the Court that the National Executive Committee of the political party conducted the primary election he is challenging and that he was an aspirant not by mouth but that he took part or participated in the vexed primary election. An aspirant who, though he was cleared to participate in the primary election decides to stage a factional primary election, does so at his peril as he is on a frolic of his own. See Daniel v INEC (2015) 9 NWLR (pt 1463) 152.

In the instant case, the Appellant herein clearly stated in the affidavit in support of his originating summons that he took part in the primary election held at St. Paul University, Awka in obedience to the judgment of Adeniyi J of the Federal Capital Territory High Court and that the said election was conducted by Sir Chukwudi Umeaba who authored and signed the alleged result of the primary election. He is said to be the leader of the State Executive of the 3rd Respondent. That Appellant emerged winner of that contraption he called party primary election. But from the authorities of this Court cited above, that assemblage at St. Paul University was nothing other than an illegal and an unlawful gathering of party delinquents. The outcome therefore was a sham and a farce. See Emenike v PDP (supra). Not having been conducted by the National Executive Committee 3rd Respondent, the primary election held at St. Paul University on 26th June, 2021 which the Appellant took part is unknown to law and is a nullity. The law is very clear that a State executive of a political party has no vires to conduct party primaries. It is only the National Executive Committee of the party that is recognized as the proper organ of the party saddled with the responsibility of conducting party primaries.

​The appellant at the Court below made “a very unprofessional somersault and an ignoble acrobatic”, according to learned counsel for the 3rd Respondent, Emmanuel Enoidem Esq, by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. The Court below made far reaching findings in this matter and concluded that the appellant did not take part in the primary election conducted at Professor Dora Akunyili Women Development Centre, Awka. The law is settled beyond any controversy that a party must be consistent in stating his case at the trial Court up to the appellate Court. A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate. See Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (pt 639) 1192, Asaboro & Anor v Pan Ocean Oil Corporation (2017) LPELR – 41558 (SC), Comptroller General of Customs & Ors v Comptroller Gusau (2017) LPELR – 42081 (SC), Akaninwo v Nsirim (2008) All FWLR (pt 410) 610, Oliyide & Sons Ltd v Obafemi Awolowo University (2018) LPELR 43711 (SC).

As was observed by the Court below, the fact of the appellant participating in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka, surfaced for the first time in the Appellant’s brief at the lower Court and in this appeal before this Court. As was pointed out by the three counsel for the Respondents, this is another inappropriate introduction by the learned counsel for the Appellant. The law prohibits counsel from introducing evidence that a party did not offer at the trial. The law is trite that counsel cannot use his address to the Court to introduce evidence which was not adduced by the party during the trial. Such evidence in counsel’s address shall not be used for the resolution of issue in the appeal. Even where such evidence was available but not adduced at the trial of the suit, counsel does not have the province or latitude to introduce it by any stretch of ingenuity in his address. See Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508, Agi v PDP (2017) 17 NWLR (pt 1595) 386.

From all I have endeavoured to say above, it is crystal clear that the Court below was right in holding that the appellant was not an Aspirant in the 3rd Respondent’s primary election held at Professor Dora Akunyili Women Development Centre, Awka and therefore lacked the locus standi to invoke Section 87 (9) of the Electoral Act, 2010 (as amended). I note that most of the authorities cited in this issue emanated from primary elections held by the 3rd Respondent in Anambra State. One would have thought that members of the 3rd Respondent especially those in Anambra State chapter would have learnt this political lesson. Party primaries are conducted by the National Executive Committee of political parties. Definitely, not by the State executive of the party. The Appellant lacked the locus standi to incept the suit giving birth to this appeal. Counsel ought to advise their clients when requested to file such frivolous suits in Court. Also, trial Courts should not close their eyes to the well established precedents bordering on the Apex Court’s interpretation of Section 87 (9) of the Electoral Act (supra). Although the learned counsel for the Appellant had termed the judgment of the Court below as being “contradictory”, “erroneous”, presumptuous”, “perverse”, “speculative” and ‘”against the record”, nothing was shown in the brief of argument to that effect. This issue is accordingly resolved against the Appellant.

Having agreed with the Court below that the appellant lacked the locus standi to institute this action at the trial Court; the simple deduction is that the trial Court had no jurisdiction to have entertained the suit. The Court below made this point very clear in its judgment. Thus, at this stage it becomes academic and a waste of the precious time of this Court to consider any other issue. The judgment and orders of the trial Court having been set aside by the Court below, there remains nothing more to be said in this appeal. It is my view that this appeal lacks merit and is hereby dismissed. The judgment of the Court below, delivered on 3rd September, 2021, is hereby affirmed. Five Million Naira (N5m) costs for the 1st Respondent only, to be paid by the Appellant.

Appeal Dismissed.

As agreed by all parties to this appeal at the hearing of same that appeal No. SC.CV/773/2021 shall abide the outcome of the instant appeal, it is hereby ordered that the said appeal No.SC.CV/773/2021 be and is hereby dismissed also.

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SC.CV/772/2021