Peoples Democratic Party v. Hon. Ludum Nelson Ngbor & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the decision of the Court of Appeal delivered on Monday, the 5th day of December, 2022 coram Ridwan Maiwada Abdullahi, JCA, Gabriel Omoniyi Kolawole, JCA and Abdul-Azeez Waziri, JCA.

The facts that led to this appeal are as follows:

By an originating summons filed on the 4th day of August, the appellant, commenced the suit; subject matter of this appeal, against the respondents (and others whose names were struck out by the Court of Appeal) at the Port Harcourt Judicial Division of the Federal High Court praying for a determination of the following questions:

1. Whether upon a proper construction and interpretation of the provisions of sections 29(1), 84(1), (2), (5)(c), (8) and (13) of the Electoral Act, 2022, the 2nd defendant being a registered political party seeking to nominate candidates for the 2023 General Election into membership of the House of Assembly in respect of Tai State Constituency, Port HarCourt State Constituencies I, II & III, Akuku-Toru State Constituencies I and II, Ogba/Egbema/Ndoni State Constituencies I and II, Etche State Constituencies I and XI and Ahoada East Constituency II in Rivers State, is entitled to nominate or sponsor candidates for the said elections without having held valid and lawful primaries, duly monitored by the Independent National Electoral Commission, for its aspirants to the elective positions?
2. Whether upon a proper interpretation of the provisions of sections 29(1), 84(1), (2), (5)(c), (8) and (13) of the Electoral Act, 2022, sections 106(d), 221 and 228(a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Article 15(a)&(c) of the Third Schedule thereof, the 1st defendant is permitted to allow the 2nd defendant to nominate, sponsor and field candidates to contest the 2023 General Elections into membership of the House of Assembly in respect of Tai State Constituency, Port Harcourt State Constituencies I, II & III, Akuku-Toru State Constituencies I and II, Ogba/Egbema/Ndoni State Constituencies I and II, Etche State Constituencies I and II and Ahoada East Constituency II in Rivers State, or to include the names of the “nominees of the 2nd defendant as candidates eligible to contest the said elections, when the 2nd defendant did not hold valid primaries duly monitored by the Independent National Electoral Commission for aspirants to the said positions?
3. Whether upon a proper interpretation of the provisions of sections 29(1), 84(1), (2), (5)(c), (8) and (13) of the Electoral Act, 2022, sections 106(d), 221 and 228(a) & (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Article 15(a) & (c) of the Third Schedule thereof, the 3rd to 13th defendants are eligible and qualified to participate or contest the 2023 General Elections in respect of Tai State Constituency, Port Harcourt State Constituencies I, II & III, Akuku-Toru State Constituencies I and II, Ogba/Egbema/ Ndoni State Constituencies I and II, Etche State Constituencies I and II and Ahoada East Constituency II in Rivers State, when they have not been duly nominated or sponsored by their political party, as required by law?

The appellant as plaintiff also asked for sundry orders the most important of which is a declaration that the 7th respondent had no valid candidate for the seat in issue at the upcoming election.

Thus the appellant’s cause of action was against the decision, conduct and action of the 8th respondent of receiving, accepting, recognizing, featuring and including the names of the 1st to 6th respondents in the list of candidates eligible to contest the 2023 General Election into membership of the Rivers State House of Assembly on the platform of the 7th respondent for Tai State Constituency, Port Harcourt State Constituencies I, II & III, Akuku-Toru State Constituencies I and II, Ogba/Egbema/Ndoni State Constituencies I and II, Etche State Constituencies I and II and Ahoada East Constituency II seats when the 8tn respondent knew that the 7th respondent did not comply with the mandatory provisions of the law in the nomination of the said candidates and that the primaries out of which they purportedly emerged were not held inside the various State Constituencies and were not monitored by the 8th respondent as required by law.

The crux of the appellants’ case was that the actions of the 8th respondent of insisting that the appellant must comply with the mandatory provisions of the Electoral Act in the nomination of its candidates and at the same time turning a blind eye and ignoring the 7th respondents failure or non-compliance with the same provisions suggests that the 8th respondent is bent on setting double standards by allowing the 7th respondent to participate in the elections without having conducted lawful and valid primaries for its aspirants (the 1st to 6th respondents) as required by law and that the decision and action of the 8th respondent of including and featuring the said names on the list of candidates published on the 22nd day of July, 2022 is wrongful, inconsistent with the stance of the 8th respondent in respect of other States of the Federation and in clear breach of the mandatory provisions of section 84(13) of the Electoral Act, 2022.

While the 1st – 7th respondents challenged the appellant at the trial court, the 8th respondent did not file any process.

On 7/10/2022, the trial court upheld the appellant’s claim against the respondents. The 1st – 7th respondents appealed to the court below. At the court below, the court on 5/12/22 held that notwithstanding the provisions of section 285(14)(c) of the 1999 Constitution, as amended, the appellant not being an aspirant who participated in the primary election of the 7th respondent, lacked the locus standi to institute the suit against the respondents to complain about irregularities in the nomination of the candidates of the 7nd respondents as published by the 8th respondent. In the appellant’s brief, three issues were identified for determination as set out below:

1. Whether upon a proper construction and interpretation of the provisions of section 285(14)(c) of the 1999 Constitution, as amended, the learned Justices of the Court of Appeal were justified in coming to the conclusion that the appellant lacked the locus standi and competence to institute and maintain the originating summons against the respondents in respect of the subject matter of the suit, and in all the circumstances of this case? (Distilled from ground 2 of the appellants grounds of appeal).
2. Whether the Court of Appeal was justified when it raised an issue suo motu and resolved same against the appellant without affording the parties a hearing thereon while it neglected and failed to consider and determine the issues duly raised and argued by the parties before it in the originating summons and if not, whether the said neglect and failure has not occasioned a total failure of fair hearing against the appellant in all the circumstances of this case? (Distilled from grounds 1 of the appellants grounds of appeal),
3. Whether the Court of Appeal was right when it dismissed the appeal of the appellant on the ground that the case of the appellant did not fall within the category of matters to be classified as pre-election matters under section 285 of the 1999 Constitution as amended, if not, whether the appellant is not entitled to judgment? (Distilled from grounds 3 of the appellants grounds of appeal).

In the joint brief of the 1st – 7th respondents, two issues were raised for determination as follows:

(1) Whether the issue of the appellant’s locus standi to institute the suit at the trial court was raised suo motu by the court below and whether the resolution of the issue occasioned any breach of the appellant’s right to fair hearing (Distilled from ground 1 of the grounds of appeal)

(2) Whether the lower court was not correct when it dismissed the appellant’s appeal on the ground that the appellant lacked the locus standi to institute the action at the trial (Distilled from grounds 2 and 3 of the grounds of appeal)

The 8th respondent in its brief identified a sole issue for determination to wit:

Whether or not the trial court was right when it declined jurisdiction as a result of the appellant’s suit being marred by jurisdictional infractions (Distilled from grounds 1, 2 and 3 of the notice of appeal)