Locus to Institute an Action in a Political Party’s case
SENATOR AYOGU EZE V. PEOPLES DEMOCRATIC PARTY [PDP)
& ORS (2018) LPELR-44907(SC)
APPLICABLE AREA: Electoral Matter
The term locus standi was explained in LADEJOBI & ORS v. OGUNTAYO & ORS (2004) LPELR-1734 (SC) Per MUSDAPHER, J.S.C. (P. 20, Paras. D-E) as follows: “The term ‘locus standi’ denotes the legal capacity to institute proceedings in a Court of law and is used interchangeably with terms like ‘standing’ or ‘title to sue’. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law.”
The issue of locus standi is therefore a condition precedent to the commencement of any action before any Court of law be it a trial Court, an appellate Court and, even the Supreme Court. To institute and maintain an action, the person instituting it must have legal capacity; otherwise the Court is robbed of the sine qua non jurisdiction to entertain such action.
Where a party lacks the requisite locus standi to institute an action, he will be said to be a busy body and the logical consequence is that the Court will not have jurisdiction to listen to him.
The Peoples Democratic Party (1st Respondent) had, on the 1st of November, 2014, conducted ward congresses in all the wards of Enugu State, in which three delegates were elected from each ward. The delegates so elected were saddled with the responsibility of voting in the primary election fixed for 8th December, 2014 in order to elect the Peoples Democratic Party’s candidate for the Governorship Election in Enugu State. When an issue arose as to the Peoples Democratic Party’s commitment to utilizing the list of the delegates, some delegates proceeded to the Federal High Court and initiated an action. In his judgment, the trial Judge, sanctioned and or recognized the list submitted by the plaintiffs as the authentic delegates to the primary election.
The National Working Committee of the Peoples Democratic Party appointed a panel under the leadership of His Royal Highness King Asara A. Asara, to conduct the primary election of 8th December, 2014. Senator Ayogu Eze (Appellant) refused to participate in the primary election conducted by H.R.H Asara A Asara, on the ground that the list submitted for the primary election which was in possession of King Asara A. Asara deviated from his own. It was his claim that a parallel primary election, in which the list of delegates sanctioned by the Federal High Court was used in conducting the election, had elected him as the Governorship candidate of the Peoples Democratic Party. Senator Ayogu Eze therefore did not participate in the primary election organized by the panel that was appointed by the Peoples Democratic Party and The National Working Committee of The Peoples Democratic Party (2nd Respondent), in which Hon. Ifeanyi Lawrence Ugwuanyi (4th respondent) emerged the winner.
Senator Ayogu Eze proceeded to the trial Court, via an originating summons, against the respondents, and claimed some declaratory and injunctive reliefs. Parties filed and exchanged pleadings. Hon. Ifeanyi Lawrence Ugwuanyi filed a preliminary objection to the originating summons, questioning the locus standi of Senator Ayogu Eze to institute the action. Arguments in respect of the preliminary objections and the substantive suit were heard together by the trial Court which, in a considered judgment, overruled the preliminary objections, assumed jurisdiction and dismissed Senator Ayogu Eze’s suit on the merit.
Dissatisfied with the trial Court’s dismissal of his suit on the merit, Senator Ayogu Eze appealed to the Court of Appeal. Equally aggrieved, the Peoples Democratic Party, the National Working Committee of the Peoples Democratic Party and Hon. Ifeanyi Lawrence Ugwuanyi appealed against the trial Court’s assumption of jurisdiction over Senator Ayogu Eze’s suit. The Court of Appeal considered the appeals separately and affirmed the trial Court’s finding that Senator Ayogu Eze had failed to prove his case and dismissed same. The Court of Appeal allowed the Peoples Democratic Party, the National Working Committee of the Peoples Democratic Party and Hon. Ifeanyi Lawrence Ugwuanyi’s appeals and struck out the suit at the trial Court having been commenced by Senator Ayogu Eze who was lacking the necessary locus standi.
Further dissatisfied, Senator Ayogu Eze has further appealed to the Supreme Court.
ISSUES FOR DETERMINATION
The appeal was determined on this lone issue:
“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.”
In a unanimous decision of the Apex Court, the appeal was dismissed and the judgment of the Court of Appeal was upheld.
ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Who can institute an action in court to complain about the conduct of a political party primaries
“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 the Court under Section 87 of the Electoral Act 2010 as amended cannot be invoked in Appellant’s 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 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.
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. Kperegbayi (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 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 pertook 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 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 context 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:-
“…lt 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.” Per MUHAMMAD, J.S.C. (Pp. 28-33, Paras. A-F).
ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Who can institute an action in court to complain about the conduct of a party’s primaries
“The appellant’s complaint relates to the primary election conducted by his party (PDP) on 8th December 2014 to select its candidate for the Governorship Election of Enugu State in the 2015 general elections, in which the 4th respondent was returned as the winner. He contends that his claim falls within the purview of Section 87 (9) of the Electoral Act 2010, as amended.
This Court has held in several cases that ordinarily, matters relating to the selection and nomination of candidates for an election are within the sole preserve of the political party and the Courts have no jurisdiction to look into any complaint arising thereform. See: Onuoha vs Okafor (1983) SCNLR 244: Dalhatu VS Turaki (2003) 15 NWLR (Pt. 843) 310; Agi vs P.D.P (2017) 17 NWLR (Pt.1595) 386. However, Section 87 (9) of the Electoral Act 2010, as amended gives the Courts very limited jurisdiction to ensure that in the selection or nomination process, political parties do not act arbitrarily but within the confines of their Constitution and Electoral Guidelines and in accordance with the provisions of the Electoral Act.
Section 87 (9) of the Act provides a window for an aspirant who complains that any of the provisions of the electoral Act or his party’s guidelines have not been complied with in the selection or nomination of the party’s candidate for the election, to ventilate his grievance before the Federal High Court, a State High Court or the High Court of the FCT. Not only must his complaint relate to non-compliance with the Act or his party’s Guidelines, he must also bring himself within the purview of the sub-section by showing that he was an aspirant in the election complained of.
Who is an aspirant? An aspirant is a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging. See: P.D.P Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 126 A-E; Lado vs. C.P.C (2011) 18 NWLR (Pt.1279) 689: Shinkafi vs. Yari (2016) 7 NWLR (Pt.1511) 340. What is more, the primary election he is complaining about must have been conducted by the National Executive Committee or National Working Committee of the party. See: Emenike vs P.D.P & Ors (2012) 12 NWLR (Pt.279) 689: NWLR (Pt. 1448) 123 @ 198 A-H.
By his own showing, the appellant did not participate in the primary election conducted by the King Asara A. Asara Election Committee set up by the 1st respondent. He was adamant that the election conducted using ad- hoc list of delegates sanctioned by the Federal High Court in suit No. FHC/ABJ/C5/816/2014, Barr. Orji Chineye. Godwin 2 Ors v.P.D.P & 4 Ors. was the authentic election.
The resolution of this matter is quite straightforward. Having not participated in the primary election conducted by HRH King Asara A. Asara Electoral Panel, mandated by the 1st and 2nd respondents to conduct the primary election, the appellant failed to bring himself within the purview of Section 87 (9) of the Electoral Act. He was not an aspirant in the primary election from which the 4th respondent emerged. He therefore lacked the locus standi to institute the action.” Per KEKERE-EKUN, J.S.C. (Pp. 37-39, Paras. A-E).
COURT – COMPETENCE OF COURT: When is a court deemed to be competent
“A Court is competent to adjudicate in a cause or matter in the following circumstances:
“1. When it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another;
2. the subject matter of the case is within its jurisdiction, and there is no feature of the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity, no matter how well conducted: the defect is extrinsic to the adjudication.”
These are the immortal words of Bairamian, JSC in the well known and oft-cited case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341. See also Skenconsult (Nig) Ltd VS Ukey (1981) SC 6 @ 62: Inakoju VS Adeleke (2007) 4 NWLR (Pt.1025) [email protected] 588 F; N.N.P.C VS Clifco Nig (2011) 4 SC (Pt.1) 108.
One of the features of a case that might affect the jurisdiction of the Court is the competence of the claimant to institute the action in the first place. The legal capacity or standing of a party to institute on action in a Court of law is what is known as locus standi. The term was explained in Egolum vs Obasanjo (1999) 7 NWLR (Pt.611) 355 @ 410 F-G thus:
“it is trite that the locus standi of a plaintiff or petitioner is a crucial matter touching on the competence and the jurisdiction of the Court to adjudicate on the suit, or petition, or application before it. It is a fundamental jurisdictional question that can be raised at any time during the trial as a preliminary issue or even raised for the first time on appeal.”
At page 386 A-B (supra), Ogundare JSC referred to the statement of Ademola, CJN in Lawal Vs Younan & Sons & co. Ltd (1961) 1 ALL NLR 254 0 253, to wit:
“we think it is settled that competency to Institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.”
Thus the locus standi of the appellant to institute the action is crucial in determining whether the Court was clothed with the necessary jurisdiction to entertain it.” Per KEKERE-EKUN, J.S.C. (Pp. 35-37, Paras. A-A).
ACTION – LOCUS STANDI: What the Court considers in determining whether a plaintiff has locus standi
“Again, where a plaintiff’s locus standi to maintain an action is challenged, it is the plaintiff’s 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).” Per MUHAMMAD, J.S.C. (Pp. 22-23, Paras. F-B).