Ndukwe v. Ayu & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, J.S.C. (Delivering the Lead Judgment)

This is an appeal against the judgment of the Court of Appeal, Abuja Judicial Division delivered on 15th July, 2022 wherein the Court allowed the 1st Respondent’s interlocutory appeal against the ruling of the Federal High Court sitting in Abuja. The Court below further struck out the entire proceedings of the trial Court for want of jurisdiction.

BRIEF STATEMENT OF FACTS
By an Originating Summons filed on the 19th day of April, 2022, the Appellant, a registered member of the 2nd Respondent who bought and paid for the Expression of Interest and Nomination Forms for the elective office of President of the Federal Republic of Nigeria under the platform of the 2nd Respondent, commenced the suit culminating into the instant appeal against the 1st to Respondents as Defendants, praying for the determination of the following questions:

1. “Whether upon a proper construction of the provisions of Section 228 of the Constitution, Section 84 and Section 84(14) of the Electoral Act 2022 the Defendants are not bound by the provisions of the Constitution of the Peoples’ Democratic Party (as amended

in 2017) as well as the provisions of the 1st Defendant’s Electoral Guidelines for Primary Elections and liable to adhere to and implement the provisions of the said Constitution and Guidelines?

2. Whether upon a proper construction of the provisions of Article 7(3) (c) of the Constitution of the Peoples’ Democratic Party (as amended in 2017) the Defendants are not bound to adhere to the policy of rotation and zoning of party and public elective offices including the selection or nomination of the candidate of the 1st Defendant for the public elective office of the President of the Federal Republic of Nigeria in respect of the 2023 General Election?
3. Whether upon a proper interpretation of the provisions of Article 50 (Chapter 8) of the Constitution of the Peoples’ Democratic Party (as amended in 2017), paragraph 1(i) and (ii) of Part II of the 1st Defendants Electoral Guidelines for Primary Elections, paragraphs 7, 8, 9, 10 and 11 of Part VI of the 1st Defendants Electoral Guidelines for Primary Elections and Section 84(1), (2), and (9) of the Electoral Act 2022 the Defendants are entitled to adopt the consensus method of selection or nomination of Presidential Candidate for the 1st Defendant for the 2023 General Elections?

4. Whether upon a proper construction of the provisions of paragraph 9(e) of Part VI of the 1st Defendants Electoral Guidelines for Primary Elections including the provision that no aspirant shall be declared nominated or elected as the flag bearer of the Party unless he had polled the highest number of votes cast” at the Primary Elections, the Defendants are entitled to adopt the consensus method of selection or nomination of the Presidential candidate for the 1st Defendant for the 2023 General Elections?”

Premised on the aforesaid questions, the Appellant sought for the following declaratory and injunctive reliefs on the face of the Originating Summons:

1. “A DECLARATION that by virtue of Article 7(3)(c) of the Constitution of the Peoples’ Democratic Party (as amended in 2017) the 1st to 3rd Defendants are bound to adhere to the policy of rotation and zoning of party and public elective offices in pursuance of the principles of equity, justice and fairness.
2. A DECLARATION that by virtue of Article 7(3)(c) of the Constitution of the Peoples’ Democratic

Party (as amended in 2017) and the principles of equity and fairness the 1st to 3rd Defendants are bound to zone the public elective office of the President of Nigeria for the 2023 General Elections to the southern part of Nigeria (Southern Nigeria).

3. A DECLARATION that the 1st to 3rd Defendants are bound by the provisions of the Constitution of the Peoples’ Democratic Party (as amended in 2017) and are liable to implement them until the provisions are set aside by the National Convention of the Party.
4. A DECLARATION that by virtue of Electoral Guidelines for Primary Elections issued by the Defendants, applicable with effect from March 7th, 2022 for the purpose of regulating the Conduct of Primary Elections for the selection or nomination of the Presidential Candidate of the 1st Defendant for the 2023 General Elections, the 1st to 3rd Defendants are not entitled to adopt a consensus candidate or resort to a consensus method of selection of nomination of candidate but liable to adhere to the method of election provided for by the 1st Defendant’s Constitution and the Electoral Guidelines for Primary Elections which is by a Special National

Convention of the 1st Defendant using the modified open secret ballot system.

5. AN ORDER OF INJUNCTION restraining the 1st to 3rd Defendants by themselves or by their servants, agents or privies from failing to or refusing to implement the provisions of the Constitution of the Peoples’ Democratic Party including the policy of rotation and zoning in the selection or nomination of the candidate of the 1st Defendant for the public elective office of the President of the Federal Republic of Nigeria in respect of the 2023 General Election.
6. AN ORDER OF INJUNCTION restraining the 1st to 3rd Defendants by themselves or by their servants, agents or privies from adopting a consensus method of selection or nomination of the 1st Defendant’s candidate for the public elective office of the President of Nigeria for the 2023 General Election or in any manner howsoever adopting or purporting to adopt or present a consensus candidate for the said election.
7. AN ORDER OF INJUNCTION restraining the 4th Defendant from accepting the name of any nominee from the 1st to 3rd Defendants who emerged from the process of consensus or any other process in breach of

the policy of rotation and zoning of public elective office enshrined in the Constitution of the 1st Defendant or howsoever to recognize and field such a person as the Presidential Candidate of the 1st Defendant for the 2023 General Elections.”

Upon being served with the Originating Summons, the 1st, 2nd and 3rd Respondents entered conditional appearances and filed Notices of Preliminary Objection challenging the jurisdiction of the trial Court to entertain the suit on various grounds including want of locus standi, limitation of action and failure to disclose reasonable cause of action.

​In the course of the proceedings before the trial Court on 10th May, 2022, the Appellant’s Counsel applied for accelerated hearing of the suit and for abridgement of the time within which the parties may file and serve their respective processes in the suit in view of the urgency of the subject matter which according to the Appellant is related to the proper conduct of the primary election of the 2nd Respondent, then scheduled to hold on 28th and 29th May, 2022, for the nomination of its presidential candidate to contest the 2023 General Election. In his ruling at

pages 476 to 479, Vol. 1 of the Records, the trial Judge held as follows:
“The common grounds among the parties is that this is a pre-election matter. The Plaintiff as aspirant in the Presidential primary is seeking declarative injunctive relief against the Defendants on implementation of the provisions of the party constitution on zoning for selection of Presidential candidate for the 1st Defendant in 2023 General Election.

The Plaintiff stated in paragraph 10 of the Affidavit in support of the originating summons that the 1st Defendant issued guidelines for the Primary Election and schedule of Activities and Time-table for the 2022/2023 Elections Exhibit C and Cl and have issued a communique in exhibit D which threatened the zoning arrangement in the constitution.

In Exhibit C1 item 18 special convention for Presidential Primary is scheduled for Saturday 28th – Sunday 29th May, 2022 pursuant to Section 33(5) (c) of the Party’s Constitution. The subject matter of this action would have been decided should this Court not proceed swiftly with the hearing by abridgment of time for the parties to ensure accelerated hearing. Order 56 Rule 1 provides

as follows;
Rule 1- subject to particular rules, the Court may in any cause or matter make an order which it considers necessary for doing justice whether the order has been expressly asked for by the person entitled to the benefit of the order or not.
By virtue of this provision, the pre-occupation of this Court is whether the prayer before the Court will serve the end of justice. Considering the circumstances of this case, the interest of justice will be better served by the prayer sought as the alternative sought by the Plaintiff’s Counsel will be the other option.