Alhaji Mustapha Aliyu Wushishi V. Engr. Mohammed Jibril Imam & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the judgment of the Court of Appeal Holden at Abuja in appeal No. CA/A/255/2015 delivered on the 4th day of February, 2016 in which the Court dismissed the appeal of appellant against the judgment of the Federal High Court Holden at Minna in suit No. FHC/MN/CS/EPT/35/2014 delivered on the 25th day of March, 2015 whereby the Court struck out the pre-election suit of the appellant, then plaintiff, on grounds of lack of locus standi.

The facts relevant to the appeal include the following:-

The action was a pre-election matter in which appellant challenged the outcome of the primary election conducted by the All Progressive Congress (A.P.C.) for the nomination of its Governorship candidate in Niger State for the recently conducted 2015 general election.

Appellant is a card carrying member of the All Progressive Congress (A.P.C.) political party who desired to contest nomination of the party as the gubernatorial candidate for the Niger State Governorship election of 2015. He obtained the nomination Form, Zonal clearance and Expression of Intent

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Forms in accordance with the provisions of the All Progressives Congress (hereinafter referred to as A.P.C.) Constitution and Guidelines for Nomination of Candidates for Public Offices. The above named forms were exhibited to the affidavit in support of the Originating Summons and marked Exhibits A, B and ‘C’ respectively.

However appellant did not participate or contest as a candidate at the A.P.C. primary election for the nomination of its governorship candidate for the said election held on the 4th day of December, 2014. Appellant was dissatisfied with the outcome of the primary election particularly as he felt wrongly excluded in the contest and consequently instituted an action at the Federal High Court, Minna for the determination of the following question:-

1.1 Whether considering the provisions of Article 9.1, Sub i, ii, iv, Article 9.3, Sub i and ii, Article 20 Sub iv (a) (b) of the Constitution of the All Progressives Congress (A.P.C.) 2013 and Section 2, 3, Sub 2, Section 4 Sub d of the All Progressives Congress Draft Guidelines for the nomination of candidates for the public offices in Nigeria and Section 40 at

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the 1999 Constitution of Nigeria, any party member or the Appellant was validly qualified to aspire for the office of Governorship position and run primaries under the platform of All Progressives Congress, having paid the prescribed expression of interest nomination fees for the Gubernatorial election of Niger State under the platform of All Progressives Congress.

1.2 Whether or not the provision of the All Progressives Congress Guidelines for pages 1, 2, 5 and Article 9.3 Sub i & ii of the All Progress Congress (A.P.C.) Constitution 2013, the Appellant was validly qualified to run the primaries for the Gubernatorial election of Niger State held on 4/12/2014, with other contestants, under the platform of All Progressives Congress (A.P.C.) in Niger State.

1.3 Whether or not having observed the provisions of Article 9.3 Sub i & ii, Article 9.1 Sub I, (ii) (iv) of the All Progressives Congress (A.P.C)., 2013 Constitution, the Appellant was validly shut out by the 1st and 2nd Respondents by refusing to give the Appellant a nomination form to contest for the primaries of the gubernatorial primaries of the All Progressives Congress (A.P.C.) held in

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Niger State on 4/12/2014 by the 1st and 2nd Respondents.

1.4 Whether or not having observed the provisions of the All Progressives Congress Constitution, 2013 and all the Appellant’s documentations as exhibited before the trial Court, a refusal or a denial of the Appellant to obtain nomination form by the 1st and 2nd Respondents and having the Appellant paid all the requisite fees, for the contest of the primaries of the Gubernatorial election for primaries conducted by the 1st and 2nd Respondents on 4/12/2014 in Niger State as null and void.

1.5 Whether by virtue of the provision of Article 9.3 Sub 1 of the All Progressives Congress 2013 Party Constitution, the Appellant is eligible to contest for the primary election for the post of Governorship conducted by the 1st and 2nd Respondents on 4/2/2014 and having the Respondents failed to give nomination form to the Appellant as a member to contest same can nullify the primaries conducted by the 1st and 2nd Respondents on 4/12/2014 and rerun same by including the Appellant among the contestant.

1.6 Whether or not non-observance of Party Constitution or Electoral Act, illegally shut out a

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registered member of a party or Appellant can render the 3rd Respondents not to recognize the primaries conducted by the 1st & 2nd Respondents on 4/12/2014.

Appellant also sought the following reliefs:-

1. A DECLARATION that the 1st and 2nd Respondents illegally excluded the Appellant from running the gubernatorial primaries conducted on 4/12/2014.
2. A DECLARATION that the Appellant is a legal and registered card carrying member of 1st and 2nd Respondents and he is eligible, to contest for any position on the platform of All Progressives Congress, including running the primaries held on 4/12/2014 by the 1st and 2nd Respondents.
3. A DECLARATION that the gubernatorial primary election conducted by the 1st and 2nd Respondents on 4/12/14 was illegal, having conducted same without due recourse to Article 9.3 Sub 1 of the (A.P.C.) Constitution 2013, having excluded the Appellant from the primaries race by refusing a registered member nomination form to contest.
4. A DECLARATION that the 1st Respondent should refuse to recognize the gubernatorial primaries conducted by the 1st and 2nd Respondents on 4/12/2014.
5. A

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DECLARATION that the Court should nullify the primaries conducted by the 1st and 2nd Respondents on 4/12/2014 having excluded a registered and legitimate member as Appellants from contesting the same primary election.

6. A DECLARATION that the Appellant is also qualified to contest for the primaries held on 4/2/2014 by the 1st and 2nd Respondents to contest.
7. A DECLARATION that the Appellant be given nomination form screened by the 1st and 2nd Respondents, having the Court to nullify the primaries conducted by the 1st and 2nd Respondents on 4/12/2014 with the Appellant to re-run and re-conduct the said primaries.
8. A DECLARATION that the 1st and 2nd Respondents cannot conduct the upcoming gubernatorial general election without including the Appellant, a bona-fide member of the All Progressive Congress.
9. A DECLARATION that the Niger State Gubernatorial primaries conducted by the 1st and 2nd Respondents on 4/12/2014 was a nullity having been in gross breach of the 2nd Respondent’s Constitution of 2013 and party guidelines for congress by not including the Appellant, a legitimate member who paid for the gubernatorial nomination form but

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was not given the form to contest.

10. A DECLARATION that the primaries conducted by the 1st and 2nd Respondents on 4/12/2014 be nullified and another primaries re-conducted by the 1st and 2nd Respondents including the name of the Appellant.
11. AN ORDER OF THIS HONOURABLE COURT directing the 3rd Respondent not to deal with and or recognize the conduct of the primaries conducted by the 1st and 2nd Respondents on 4/12/2014 for the general incoming gubernatorial election of Niger State.
12. AN ORDER OF THIS HONOURABLE COURT directing the 3rd Respondents not to accept any party activity or decisions emanating from the actions of the 1st and 2nd Respondents gubernatorial primaries held on 4/12/2014 having excluded the Appellant from participating in the said primaries.

13 AN INJUNCTION RESTRAINING the 1st, 2nd and 3rd Respondents from conducting the general gubernatorial election of Niger State (A.P.C.) until final determination of this substantial matter before the Court.

It should be noted that despite the fact that a winner of the primary election had emerged prior to the filing of the suit, appellant did not deem it fit and proper to join him in the suit

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as constituted even though some of the above reliefs, if granted would adversely affect the interest he had acquired by winning the said primary election.

However the 1st and 2nd respondents jointly filed a conditional appearance and preliminary objection to the suit on grounds of lack of locus standi and jurisdiction of Court which was duly upheld by the trial judge in the judgment delivered on the 25th day of March, 2015 which resulted in the appeal to the lower Court earlier referred to in this judgment and which appeal was dismissed. The instant appeal is a further appeal by appellant.

The issues formulated by learned Counsel for appellant, M. N. MOHAMMED, ESQ in the appellant brief on 15/3/16 and adopted in argument of the appeal at the hearing of same on the 7th day of December, 2016 are as follows:

1. Whether the learned Justices of the Court of Appeal breached the appellants right to fair hearing when they refused to consider the relevant issues raised by the appellant before arriving at the decision
2. Whether the learned Justices of the Court of Appeal were right when they declined jurisdiction to entertain the

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case of the appellant on the ground that the appellants case before them is within the domestic jurisdiction of the 2nd respondent (A.P.C.) and thus the appellant lacks the locus standi to question whose party A.P.C. chose as candidate for the office of governor of Niger State…

On the other hand, learned Senior Counsel for the 1st respondent, YUNUS USTAZ USMAN, SAN in the 1st respondents brief filed on 27/3/16 formulated a single issue for the determination of the appeal, to wit:

Whether the Court of Appeal was justified and/or right in dismissing the appellants appeal (Ground 1 and 2 of the Notice and Grounds of Appeal)

On his part, learned Senior Counsel for the 2nd respondent, MAHMUD ABUBAKAR MAGAJI, SAN, in the 2nd respondents brief on 31/3/2016 submitted the following two issues for determination:

i. Considering the fact that appellant did not contest the primary election held on 4th December, 2015 for the nomination of the gubernatorial candidate of 2nd respondent, (A.P.C.) for Niger State, whether he has the locus standi to challenge the outcome of the primaries under Section

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87(9) of the Electoral Act 2010 (as amended). (Distilled from Ground 2)

ii. Having found that the trial Court was right in declining jurisdiction to entertain the matter challenging the outcome of the primaries of 2nd respondent, whether the Court of Appeal’s refusal to go into the merit of the case and/or consider appellant’s Exhibits A, B, C, D and E breached appellants right to fair hearing (Distilled from Ground 1).

Looking closely at the two issues formulated by learned Counsel for appellant and 2nd respondent, I am of the considered view that the sequence of the issues formulated by learned Senior Counsel for 2nd respondent is more logical and consequently preferable and this appeal will be considered in accordance with the sequence of the issues as so presented together.

I, however, wish to state that though learned Counsel for 3rd respondent, T. M. Inuwa, Esq. filed a notice of preliminary objection which was argued in the 3rd respondent’s brief filed on 12/4/16, the said notice was withdrawn at the hearing of the appeal on 7/12/16 and consequently struck out.

On appellants issue 2, learned Counsel submitted that

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appellant was qualified by the Constitution of A.P.C. to contest the Niger State gubernatorial primaries on 4/12/14 after satisfy the requirements for the contest but was never allowed by the respondents who willfully refused to issue nomination form (form) to the Appellant despite the fact that he fulfilled all the requisite preconditions; that having regard to the Constitution of 2nd respondent and its draft Guidelines For Nomination of Candidates for Public Offices in Nigeria, appellant was qualified to contest the nomination and ought to have been issued a nomination form to enable him participate in the said primary election to which submission learned Counsel cited and relied on Article 9(3) (1) of the A.P.C. Constitution, 2013 and Articles 20 thereof in addition to Sections 2 and 3 of the Draft Guidelines for Nomination of Candidates for Public Offices in Nigeria; that the respondents received appellant’s payment of the sum of N5 million for nomination form but refused to issue the form to appellant despite the fact that appellant also paid the sum of N25,000 being the sum required for zonal clearance for Niger Zone C, etc

It is

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the further contention of learned counsel for appellant that the lower Court was in error in affirming the decision of the trial Court that appellant has no locus standi to institute the action when the complaint was on non-compliance with the partys Constitution and Guideline and in such a case the jurisdiction of the Court cannot be shut out, relying on the provisions of Section 87(9) of the Electoral Act, 2010 as amended; that a complainant who ought to have taken part in his political partys primaries has the locus standi to institute an action under the said Section 87(9) of the Electoral Act, 2010 as amended; learned Counsel also relied on the case of Ukachukwu v. P.D.P. (2014) 17 NWLR (Pt. 1435) 201; that having shown that the trial Court has jurisdiction, and that the respondents admitted the case of the appellant, this Honourable Court has the power to order for a re-run of the primaries to enable the appellant participate. The above submission is made notwithstanding the fact that a general election had long been conducted and a winner declared for the office of Governor of Niger State!!

With regard to appellant’s issue 1, learned

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Counsel submitted that the failure of the lower Court to consider his complaint against the trial Courts decision on the matter without reference to the relevant exhibits, particularly Exhibits A, B, C, D and E amounted to a denial of his right of fair hearing which renders the proceedings null and void, and urged the Court to resolve the issues in favour of appellant and allow the appeal.

On his part, learned Senior Counsel for 1st respondent stated that by the admission of appellant in paragraphs 7 and 8 of the affidavit in support of the Originating Summons, appellant did not satisfy all the requirements for him to be regarded as an aspirant of the party as he only paid for an intent form of N5 million but was not issued with a nomination form to contest the primary election; that the lower Courts were right in holding that appellant was not an aspirant at the primary election of 4/12/14; that appellant not being an aspirant who participated at the said primary election cannot bring himself within the provisions of Section 87(9) of the Electoral Act, 2010, as amended, relying onP.D.P. & Anor v. Sylva & Ors (2012) LPELR

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7814; (2012) 13 NWLR (Pt. 1316) 85, 15, 148; Nobis-Elendu v. I.N.E.C. (2015) 6 SCM 117 at 136; Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 60; Gwede v. I.N.E.C. (2014) 18 NWLR (Pt. 1438) 56 at 93; that haven not participated in the primary election of the 2nd respondent, appellant has no locus standi to challenge the result of the primaries. Finally, that since appellant lacks the locus standi to institute the action as rightly found and affirmed by the lower Courts, the lower Courts have no jurisdiction to entertain the action and can, therefore, not go into the merits of the case by examining the exhibits, etc, relying onJames v. I.N.E.C. (2015) 12 NWLR (Pt. 1474) 538 at 584; that a Court of law cannot make an order binding a non-party to the action such as the present Governor of Niger State who emerged the winner of the Governorship election in Niger State following the general election but was not made a party to the action praying for nullification of both the primary election and the general election.

Learned Senior Counsel then urged the Court to resolve the issues against appellant and dismiss the appeal.

On his part, learned Senior

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Counsel for 2nd respondent M. A. MAGAJI, SAN in the 2nd respondents brief of argument filed on 31/3/2016 submitted that the trial Court haven examined the facts and law and come to the conclusion that appellant had no locus standi in instituting the action, was right in striking out the matter and that the lower Court was right in affirming that decision; that sponsorship of candidates for election is the primary responsibility of political parties over which the Courts have no jurisdiction; that appellant not being a party envisaged by Section 87(9) of the Electoral Act, 2010 as amended, has no locus standi to institute the action neither can he question any irregularity in the primary election in question; that appellant was neither screened nor cleared to contest the primary election nor did he participate in the said primary election to nominate the partys gubernatorial candidate and urged the Court to resolve the issues against appellant and dismiss the appeal.

T. M. INUWA, ESQ for 3rd respondent leaves the decision on the merit at the discretion of the Court but stated that based on the facts of the case as admitted by appellant,

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appellant lacks the locus standi to institute the action as found by the lower Courts particularly as he was not an aspirant within the provisions of Section 87(9) of the Electoral Act, 2010 as amended.

From the record, the following facts are not in dispute:

(1) that appellant instituted suit No. FHC/NN/CS/35/2014 on 5/12/14 against the present respondents for reliefs earlier reproduced in this judgment.

(2) that appellant was not an aspirant at the primary election of the 2nd respondent held on 4th December, 2014, the result of which he wants the Court to declare a nullity.

(3) that the primary election of the 2nd respondent was duly held and a winner emerged, who proceeded to contest the Niger State Gubernatorial election of 2015 and won;

(4) that the said winner of the said primary and gubernatorial election was not joined or made a party in the action by appellant though some of the reliefs claimed affect his interest.

As earlier stated in this judgment, it is the decision of the Lower Courts that appellant has no locus standi to institute and maintain the action and as such the Courts have no jurisdiction to hear and

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determine the said action. The question to be decided herein is therefore whether the lower Courts are correct in their determination

In resolving the issue, it is necessary to take a look at the provisions of Section 87(9) of the Electoral Act, 2010 as amended, which confers jurisdiction on the Court to hear and determine matters arising from nomination of candidates by political parties to contest general elections. I have to, once more point out that the jurisdiction conferred on the Court to hear matters arising from political party nomination of candidates is an exception to the general principle of law that sponsorship of candidates by political parties for an election is the prerogative of the political parties concerned and as such the Court has no jurisdiction to interfere in such a matter, same being within the internal affairs of the political parties seeDalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Jang v. I.N.E.C. (2003) LRECN 299; P.D.P. v. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 148; Ukachukwu v. P.D.P. (2014) LPELR 22115; Nobis-Elendu v. I.N.E.C. (2015) 6 SCN 117 at 136; Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 60; Ugwu v.

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Ararume (2007) 12 NWLR (Pt. 843) 310; Onuoha v. Okafor (1983) 2 SCNLR 244, Gwede v. I.N.E.C. (2014) 18 NWLR (Pt. 1438) 56 at 93 Shinkafi v. Yari (2016) LPELR 26050 etc, etc. Now to the provisions of Section 87(9) of the Electoral Act 2010, as amended which provides as follows:-

(a) Notwithstanding the provisions of the Act or rules of a Political Partly, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have 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 F.C.T. for redress.

In dealing with the above provision in the case of Ardo v. Nyako (2014) 10 NWLR (Pt. 1461) 591 at 629, I stated the position of the law inter alia, as follows:-

It is in that respect that I have to say that it is settled law that the question as to who is a candidate of a political party remains within the province of the political parties over which the Courts have no jurisdiction except within the very narrow compass provided under the said Section 87(9) of the Electoral

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Act 2010 as amended. Under the said Section 87(9) an aspirant who can invoke the jurisdiction of the Court and, as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral 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 – see Lado v. C.P.C. (2012) 17 NWLR (Pt. 1275) 20 at 59-60; Emenike v. P.D.P. (2012) 12 NWLR (Pt. 1315) 556;…

It follows that for a party/person to qualify or have the locus to institute an action on a matter arising from the nomination of a party’s candidate for an election, he must have participated in the nomination exercise of the party and failed irrespective of whether nomination is a process or an event.

Where a party did not participate in the primary election of the political party for the nomination of a candidate for an election, he cannot sue on the processes leading to and including the actual primary election because by the provisions of the said Section 87(9) supra the Court will have no jurisdiction to hear and determine the action. In the

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instant case, appellant did not participate in the primary election conducted by the party to select/nominate its candidate for the gubernatorial election in question neither did he fail in the said exercise.

The above remains the law as this Court has not taken a contrary position on the matter.

As found earlier in this judgment, there is no doubt, whatsoever, that appellant was not an aspirant within the provisions of Section 87(9) of the Electoral Act, 2010 as amended. It should also be noted that the action of appellant is not designed to seek redress for the sums he paid to the respondents towards his intention to participate in the nomination exercise of the respondents for a candidate for the election into the office of the Governor of Niger State.

In the circumstances and having regard to the facts and applicable law I hold the considered view that the lower Courts are correct in holding that appellant has no locus standi to institute the action for the reliefs claimed and as such the Courts have no jurisdiction to entertain same.

It is my further opinion that jurisdiction being a fundamental/peripheral issue and

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the lower Courts haven determined same against appellant, the Courts had no business proceeding any further to consider the substantive matters on the merit and their failure has not resulted in any miscarriage of justice in the instant case as the appellants right to fair hearing is in no way adversely affected thereby.

In conclusion, I find no merit whatsoever in this appeal which is consequently dismissed by me.

I, however, make no order as to costs.

Appeal dismissed.

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