WHO HAS THE LOCUS STANDI TO QUESTION THE CONDUCT OF PRIMARY ELECTIONS

ENGR. FRANK OKON DANIEL v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS (2015) LPELR-24566(SC)
friday 27 day of March 2015
Electoral Matters - 

This is an electoral matter in which the 2011 Gubernatorial Elections in Nigeria were held on the 26th of April, 2011. For this election the Peoples Democratic Party (PDP) held its primary election on the 9th day of January, 2011 to elect its Governorship candidate for Akwa Ibom State. The appellant, the 3rd Respondent and some other members of the PDP participated in the primaries. The primary election was marred by irregularities. Eventually the results were cancelled on the 14th day of January, 2011 and fresh primary elections were fixed for the 15th day January, 2011. 

 

The primary election fixed for 15th day of January, 2011 went ahead as planned. The 3rd Respondent won. The appellant was not satisfied with the conduct of the primary election and so on the 15th day of March, 2011 he filed an originating summons at an Abuja Federal High Court, which was subsequently amended. The appellants Amended Originating Summons filed on the 10th of November, 2011 presented the following question for determination:

 

 (a) Whether Dr. Okwesileze Nwodo, the former Chairman of the Peoples Democratic Party (PDP) having been relieved of his office as chairman of PDP is not disqualified from performing the functions of that office by convening and presiding over the National Working Committee Meetings of the 2nd defendant and purportedly signing result of the re-run primary election for Akwa Ibom State and transmitting the name of the 3rd Defendant to the 1st defendant as Governorship candidate of PDP for Akwa Ibom State in the April, 2011 General/Governorship Elections.

 

 (b) Whether the National Working Committee of the PDP is competent to dabble into primary election or nomination of candidate for Akwa Ibom Governorship elections. 

 

(c) Whether following violations of provisions of section 87(3)(9) of the Electoral Act 2010, articles 17.1 and 17.2(a) and (b) of the 2009 Constitution of the Peoples Democratic Party as amended, in the conduct of January 15th, 2011 Governorship re-run election at Uyo Township Stadium in Akwa Ibom State, the plaintiff was not wrongly excluded or put at disadvantage in the said re-run election and the re-run consequently being invalid, wrongly incompetent, unconstitutional and of no effect. 

 

(d) Whether the January 15th, 2011 Governorship re-run primary election in Akwa Ibom State not having been done in compliance with the provisions of part iv Articles 21(9) of the Electoral Guidelines for primary election 2010 of Peoples Democratic Party and Constitution of Nigeria is not in violation of the rights of the plaintiff, his supporters invalid wrongful and void for the purpose of nominating candidate to the 1st defendant for the Governorship election and such candidate incapable of being accepted by the 1st defendant. 

 

(e) Whether the purported Extract of PDP's National Working Committee Meeting dated 14th day of January, 2011 and giving one day notice of Governorship primary re-run election for Akwa Ibom State slated for 15th January, 2011 is not in violation of the provisions of Electoral Act 2010 as amended, PDP constitution. The PDP guidelines for primary election and constitution of the Federal Republic of Nigeria and therefore invalid, null and void and of no effect. 

 

 (f) Whether the 3rd defendant having failed to meet the provisions of PDP Constitution and PDP Electoral Guidelines is not disqualified from participating in the primary or re-run primary election for nomination of Akwa Ibom State Governorship candidate under platform of PDP. 

 

 (g) Whether the 2nd defendant can validly hold a special congress called a primaries in Akwa Ibom State for the purpose of nominating its Governorship candidate for April, 2011 General Elections without complying with the provisions of the Electoral Act 2010 as a amended. 

 

 (h) Whether the purported special congress fixed with one day notice for January 15th, 2011 in breach of the provisions of section 85 and 87 of the Electoral Act, 2010 as amended is not unlawful land consequently a nullity. 

 

 (i) Whether it was proper and lawful for the 1st defendant to have accepted the purported nomination of the 3rd defendant predicated on the unlawful re-run primary election of 15th January, 2011 and acted on same as Governorship candidate of the 2nd defendant for 2011 Governorship election. 

 

 (j) Whether the purported re-run primary election of January, 15th 2011 in Akwa Ibom State is not invalid for being prejudicial and in discrimination of the plaintiff and violation of the rights of the plaintiff and his supporters as guaranteed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended and therefore unconstitutional and incompetent. 

 

 Upon the receipt of service of process, the 2nd and 3rd respondents filed Preliminary Objections for the following orders: 

 

1. An order of this Honourable Court dismissing and/or striking out this suit in limine and declining jurisdiction to entertain and adjudicate thereupon however on the grounds inter alia that; (a) the plaintiff by his evidence, is not clothed however with the requisite locus standi to institute and maintain this suit, not having participated in the Governorship elections primaries the subject matter of this suit that was concluded and held by the 2nd defendant in Uyo Akwa Ibom State on 15th January, 2011 ("150111 Re-run AKS Governorship Election Primaries or Re-run Primaries") for the purposes of electing the governorship candidate of the 2nd defendant for the 2011 Governorship Elections in Akwa Ibom State; and 

 

 (b) the Questions for Determination as framed by the plaintiff and the Reliefs sought by him, vide his Amended Originating Summons relate to pre-primary election issues concerning the 150111 re-run AKS Governorship Election Primaries, issues which this honourable Court is not seized with subject-matter jurisdiction to entertain and/or adjudicate upon however; and 

 

(c) without regard to the preceding grounds, the plaintiffs remedies as distilled from the Reliefs in his Amended Originating Summons all lie against the 2nd defendant and not against the 1st defendant thereby vesting exclusive jurisdiction in this suit (assuming the Plaintiff had locus standi and the suit in justiciable however) in the State High Court and not the Federal High Court pursuant to sections 251 and 272 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 

 

 In a considered judgment delivered on the 14th day of September, 2012 the learned trial judge, dismissed the plaintiff's suit. This did not go down well with the appellant hence, he filed an appeal which was heard by Court of Appeal, Abuja Division. The court decided the issue of the locus standi of the appellant to maintain the suit and invoked its powers under section 15 of the Court of Appeal Act to decide the substantive claims or main appeal. The judgment of the trial court on locus standi was upset by the Court of Appeal. As regards the main appeal, there was unanimity in dismissing it. Both sides were dissatisfied with the judgment of the Court of Appeal. The appellant filed an appeal while the 2nd and 3rd respondents filed Preliminary Objections against the appeal, and filed cross-appeals. This Court is to decide the following: 

 

1. The Preliminary Objections filed by the 2nd and 3rd respondents 

 

2. The judgment of the Court of Appeal (a) Whether the appellant has locus standi to maintain his suit, (b) Whether the Court of Appeal was correct to dismiss the main appeal. 

 

3. The cross appeals, and the appellants preliminary objection to the 3rd respondent/cross appellants appeal. The preliminary objections are targeted at the Grounds of Appeal and the two issues distilled for determination of the appeal. From the appellant's eight grounds of appeal, two issues for determination were formulated thus: 

 

1. As two out of the three justices who heard the appeal held that the trial court was wrong in holding that the appellant had no locus standi to institute the suit, should the Court of Appeal not have allowed the appeal and declared the appellant the candidate of the PDP at the Governorship election in Akwa Ibom State, which held on April 26th, 2011? 

 

2. Having regard to sections 87(9), (10), and 156 of the Electoral Act, was the appellant not a candidate at the Governorship primary election of the 2nd respondent, held on the 15th of January, 2011 for the Akwa Ibom State Governorship Election of April, 2011? 

 

 The issues raised for determination in both Preliminary Objections are: 

 

1. Whether the appellant's grounds of appeal 1, 2, 3, 4, 5 and 6 are competent. 

 

2. Whether the two issues formulated by the appellant are competent. 

 

3. Whether this appeal is an academic exercise. The Preliminary Objection was overruled. MAIN APPEAL Grounds 2, 6, 7 and 8 easily sustain the main appeal from which learned counsel for the appellant formulated a sole issue thus: 1. As two out of the three justices who heard the appeal held that the trial court was wrong in holding that the appellant has no locus standi to institute the suit, should the Court of Appeal not have allowed the appeal and declared the appellant the candidate of the PDP at the Governorship election in Akwa Ibom State, which held on April 26th, 2011? Counsel for the 1st respondent adopted the issues raised by the parties to the appeal. Counsel for the 2nd respondent adopted the two issues formulated by the appellant. Counsel for the 3rd respondent formulated two issues for determination. They are: 

 

1. Was the appellant vested with locus standi to challenge the re-run primary in the terms of section 87(9) of the Electoral Act, 2010 (as amended) and was the trial court seized with jurisdiction to entertain the appellant's suit? 

 

2. Was the lower court, in any case, right in dismissing the appellant's substantive suit before the trial court pursuant to section 15 of the Court of Appeal Act? The court considered the sole surviving issue formulated by the appellant in resolving the appeal and dismissed same. CROSS APPEALS PRELIMINARY OBJECTION The preliminary objection was dismissed. Learned counsel for the 2nd respondent/cross-appellant formulated three issues for determination thus: 

 

1. Considering the state of the law and the facts of this case was the lower court not in grave error to have held that the cross-respondent had requisite locus standi to challenge the validity of the primary election of 15th January, 2011 on the ground that he was screened and cleared as contestant for the nullified primary election on 9th January, 2011. 

 2. Whether the lower court was right when it failed or neglected to consider and pronounce on cross-appellants case that the grounds upon which the 15th January, 2011 primary election were being challenged are not justiceable, being pre-primary election matters. 

 3. Whether the lower court was not in error when it failed to limit itself to the claim of the cross-respondent in resolving the issue of locus standi and jurisdiction but relied on the content of the appellant's defence. 

 

 Counsel for the 3rd respondent/cross appellantwo formulated two issues thus: 

1. Was the lower court right in not resolving the issue of whether the appellant's substantive complaints before the trial court constituted pre-primary issues over which the trial court lacked jurisdiction to adjudicate upon? As an adjunct to that question is this Honourable Court well placed to determine the said issue pursuant to section 22 of the Supreme Court Act. 

2. Was the lower court right in holding that the appellant had locus standi to complain against the re-run primary before the trial court, not having participated, by his own admission, in the said re-run primary.

 

 Learned counsel for the appellant/cross-respondent adopted the three issues formulated by learned counsel for the 2nd respondent/cross-appellant and the two issues formulated by the 3rd respondent/cross-appellant. The five issues formulated for determination of the cross-appeal were examined and the court was satisfied that the 3rd respondent/cross-appellants issue 2 would be considered for determining the cross-appeal. Both cross-appeals were taken together. The trial court held that the appellant did not have the requisite locus standi to institute his action. The Court of Appeal upset that finding and held by a majority of 2 to 1 that the appellant had locus standi to institute his action and the trial court had the jurisdiction to entertain the appellant's pre-election case. This cross-appeal is against that finding in the majority of the Court of Appeal. The sole issue for determination reads: "Was the lower court right in holding that the appellant had locus standi to complain against the re-run primary before the trial court, not having participated, by his own admission in the said re-run primary? The appeal being dismally devoid of any merit, was dismissed with no order on costs while the cross appeal was allowed. 

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