Jurisdictional Competence Of The Court In Pre-Election Matters In Nigeria: An Appraisal Of The Case Of George Orlu & 5 Ors V. All Progressives Congress (APC) & Anor.

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By  L. G Jamala, Esq. LL.B (Hons.) BL, LL.M

The Federal High Court, sitting in Port Harcourt, Rivers State on the 25th day of October, 2022, entered judgment in favour of the Plaintiffs in the case subject of discuss, nullifying the delegate congresses viz-a-viz all the primaries of the All Progressives Congress (APC) the 1st defendant therein with regards to State Houses of Assembly elections, House of Representatives, Senate and Governorship election for the 2023 general elections slated for the 25th of February and the 11th day of March, 2023.

 

 

The brief facts of the case are that the Plaintiffs, who claimed to be members of the All Progressive Congress in Rivers State, challenged the delegate elections of the 1st Defendant on the ground that despite paying for the nomination forms, they were not issued nomination forms for the elections and therefore prayed the court to set aside the DELEGATE elections of the 1st Defendant conducted on the 18th and 19th of May, 2022. They went further to call on the court to set aside the entire primary elections that birthed the candidates of the 1st Defendant in Rivers State for the Offices of Governor, National Assembly and State House of Assembly. This is notwithstanding the fact that the primaries have since been concluded, winners emerged, and names of candidates submitted. On the contrary, the 1st Defendant denies the allegations and maintained that the Plaintiffs are not members of the 1st Defendant. Secondly, the 1st Defendant contended amongst other jurisdictional issues that, assuming the Plaintiffs are its members, that they have not fulfilled conditions precedent for the institution of the action.


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It is apposite to state here that in trying to objectively discuss this subject, I shall examine it on two prongs to wit; whether the grievances of the Plaintiffs fall under what the courts have severally held to be an internal affair of a political party or a cause of action within the class of a pre election suit under the Electoral Act, 2022. I shall for want of time, discuss the two prong issues jointly.

Permit me to say that in attempting to answer the above in the most decent manner and hoping my sentiment betrays not my objectivity, I shall rely principally on decided authorities viz-a-viz the provisions of the Electoral Act, 2022 and the 1999 Constitution as amended where the need demands. Suffice also to state here however that this piece is not in any form intended to be seen as an appeal to the decision of the trial court.

Upon the released of the time table by the Independent National Commission (INEC) for political activities with regards to the 2023 general elections in tandem with the provisions of the Electoral Act, 2022, political parties began the process of presenting candidates for the said elections into various political offices. it commences with the election of adhoc elective delegates who will thereafter vote at the primaries of the political party where the party adopts the Indirect primary option as provided for under S.84(2) of the Electoral Act, 2022.

It was in carrying out this mandatory activity that the 1st Defendant (the APC) scheduled and did held on the 18th and 19th of May, 2022 delegates congresses.

The resultant displeasure of the process led the Plaintiffs into instituting the action, now decided and for which, this piece is now centered on.

This piece considers the jurisdictional competence of the courts in pre election matters in Nigeria.

Firstly, on what amounts to an internal affair of a political party and thus ousting the courts of the vires to so adjudicate upon, the Supreme court in the case of Aguma v. A.P.C (2021) 14 N.W.L.R (Pt.1976) 406 @ 394 held; “By expressly listing the three types of matters that constitute or mean a pre-election matter, section 285(140)(a) to (c) of the Constitution (as amended) clearly excludes the matters not mentioned therein. Where a statute expressly lists the items to which it applies, it excludes those not listed therein. The interpretative rule is often expressed in the maxim: the express mention of certain things excludes those not mentioned. So, if section 285(14) of the Constitution had intended the actions concerning the election and appointments of persons to political party offices, membership of a political party, setting up committees or organs of a political party and its general internal affairs to constitute pre-election matters, it would have stated so. Since such actions are not listed in section 285(14) as pre-election matters, they are not. In the instant case, the suit leading to the appeal was not a pre-election matter.

See also the case of All Progressives Congress (APC) v. Dele Moses & 10 Ors (2021) 14 N.W.L.R (Pt. 1976) 278 @ 329-320.

The law is settled that the law governing congress election of a political party is that it is only a participant that can question the outcome.  In MAIHAJA V. GAIDAM (2018) 4 NWLR (Part 1610) 454, the court held “The Appellant, as the plaintiff did admit in the affidavit in support of his Originating summons that for sundry reasons he could not submit his “completed Expression of Interest and Nomination Forms” to the 2nd Respondent, All Progressives Congress (APC) (the political party he intended to seek its sponsorship as a candidate for the general election), either at the National or State Secretariats of the Party. The Appellant, in consequence thereof, could not or did not participate in the primary election of the APC to nominate the APC candidate to contest for the office of the Governor of Yobe State. Section 87[9] of the Electoral Act, 2010, as amended, is unambigously clear that it is only an aspirant who complains that the provisions of the Act and the guidelines of his political party have not been complied of his political party for the general election has the locus standi to apply to the Federal High Court, or the High Court of a State, or the High Court of the Federal Capital Territorial for redress. The provisions of Section 87(9) of the Electoral Act, 2010, as amended, have been interpreted in a number of cases by this Court to the effect that the plaintiff or complainant who did not participate in the party primary election, as an aspirant, has no locus standi to complain about the outcome of the said primary election. See PDP v. SYLVA (2012) 13 NWLR (pt.1316) 85 @ 125. The point was made more poignant in PDP v. SYLVA (supra) at 126 where this Court stated the law thus – “Section 87(9) of the Electoral Act confers jurisdiction on Courts to hear complaints from “candidate who participated at his party’s primaries. The fact in this case are conclusive that the 1st respondent did not participate as a candidate in the PDP primaries which held on 19/11/11 to chose the party candidate for the general election for (election of the) Governor of Bayelsa State. The 1st Respondent not being a candidate at the primaries cannot be heard to complain about the conduct of the primaries. Section 87(9) of the Electoral Act is thus not applicable. The PDP has the right to bar the 1st respondent, or any of its members from contesting its primaries if it so desires.” The Appellant, by his own showing, did not participate in the primary election of his party, APC, for the election of the party’s candidates for the election to the office of Governor of Yobe State. He, therefore, did not have the locus standi under Section 87(9) of the Electoral Act, 2010, as amended, to approach the Federal High Court to complain about the conduct of the APC primary election for the election/nomination of the party’s candidate for the office of Governor of Yobe State. To this extent he was, being a busybody, rightly shut out by the Courts. I have no cause therefore to disturb the concurrent findings or judgments of the trial Court and the Court below on this issue, which I resolve against the Appellant.” (Underlining mine).

For one to be able to initiate and sustain an action, he or she must be clothed with the standi to so do. On the question of locus standi, the court held in DANIEL V. INEC & Ors (2015) 9 NWLR (Part 1463) 113; (2015) LPELR 24566 (SC) pp 48-51 paras C – E per Rhodes-Vivour, JSC (as he then was), P 50 paras A-D; see also pages 48 – 51 paras C-E: “Since the appellant did not participate in the re-run primaries there was no way he could complain about the conduct of the primaries, and so had no locus standi to institute an action as provided by Section 87(9) of the Electoral Act. Put in another way, before a candidate for the primaries can have the locus standi to sue on the conduct of the primaries he must be screened, cleared by his political party and participate at the said primaries. Anything short of that the candidate who did not participate in the primaries could conveniently be classified as a meddlesome interloper with no real interest in the primaries.”

One clear point that can be gleamed from the totality of the authorities above is the simple fact that only a party who participated in the process as an “aspirant” in the primary elections that has the legal right to contest any perceived wrong doing. It is settled law that in order for the court to have jurisdiction to entertain a matter, the plaintiff must have locus standing to bring the action before the court. See NYESOM V. PETERSIDE & ORS (2016) LPELR-40036(SC) (Pp.39-40, para C.A)

It is important to note that although the foundation of the Plaintiff’s case is centered on the delegate congresses, the Plaintiffs, as can be seen in relief 5 on the originating summons, also sought to the nullification and setting aside of the Governorship, National and States Houses of Assembly primary election of the 1st Defendant. By the nature of the Plaintiffs suit, the action is an election related matter, for which the Electoral Act only can donate a right of action. See AGI v. PDP & ORS (2016) LPELR-42578(SC)(Pp. 14-18, Paras. E-B).

Section 84(14) Electoral Act 2022 provides for who can question or seek to set aside the primary election of any political party. It is only an aspirant to that primary election. S.152 of the Electoral Act 2022 defines an aspirant to mean “a person who aspires or seeks or strives to contest an election to a political office”.  The combined effect of these sections is that only an aspirant who participated in the primary election of a political party that has the locus standi to challenge its outcome, procedure, etc. This was the decision of the Supreme Court in the case of ARDO V. NYAKO & ORS(2014) LPELR-22878 (SC) where the Supreme Court held that: “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 Vs C.P.C. (2012) All FWLR 263; Uzodinma Vs. Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30 @ 59 – 60;: Emenike Vs. P.D.P. (2012) 12 NWLR (Pt. 1315) 556; P.D.P. v. Timipre Sylva (2012) 13 NWLR (Pt.1316) 85 @ 126; Emeka v. Okadigbo (2012) 18 NWLR (Pt.1331) 55 @ 83. etc, etc, etc. 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 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.”

Sections 87(9) and156 of the Electoral Act 2010 are inpari material with sections 84(14) and 152 of the Electoral Act, 2022. In the instant case, the Plaintiffs, not being aspirants in the Governorship, National or States Houses of Assembly primary elections of the 1st Defendant have no locus standi to institute this action seeking to set aside those primary election.

In the same vein, the Plaintiffs, having not participated in the said delegate election and indeed the primary election, they have no locus to also commence the action ab initio seeking to challenge the process leading to the primary election.

In the case of All Progressive Congress v. Peoples Demcratic Party & Anor (2021) LPELR (CA) pages 18-21, Paras C-F, The court held that; “Nomination of candidates by a political party to contest general election is a political matter, and an internal affair of a political party, and Courts do not adjudicate over such matters…”

From the facts of the of the case as earlier provided, the case which the Plaintiffs presented before the court for adjudication is one which the court, with all due respect,  is not well fitted to dabble into.

The issue as presented before the Court borders on the election or nomination of delegates which is outside the scope of section 84(14) of the Electoral Act 2022 for which the court cannot determine. They are within the internal affair of a political party. The grouse of the Plaintiffs are that the payment for nomination forms for the delegate election of the 1st Defendant which the 1st Defendant failed to issue to them, hence they were unable to participate in the delegate election. They had not been screened to be legible to contest the said Ward or Local Government Area delegate election.

Authorities are replete that a court will not dabble into the internal affairs of a political party to decide for it who it should issue nomination forms or whom to screen or not screen. The Supreme Court in the case of APC VS. LERE (2019) 5-6 SC (PT.II) P. [email protected] 91 defined an internal affair of a political party as: “Party Guidelines are similar in most of the Political parties. Candidates are expected to obtain expression of interest and nomination forms, present their certificates for verification and appear before a screening committee. This is the stage at which the domestic or internal affairs of the Political party are not justiciable. The court will not dabble into how a member of the party is screened, or why a member was not cleared by the Party to contest the primaries. Put in another way, before a member of the Party is cleared, the Party has the power to disqualify their member, and is answerable to no one including the courts. A dissatisfied member’s remedy is to leave the party and seek his political ambitions somewhere else. But once a member is cleared to contest the primaries, he becomes an aspirant.”

In UFOMBA V INEC (2017) LPELR-42079 (SC) 46-48 PARAS D, the Supreme Court further animated the above submission thus: “I wish to concern more on the nature and propriety of some of the six reliefs on which the appellant approached the trial Court for its indulgence. In such reliefs, he gave the impression that he was the winner of the primary elections conducted by his party. However, closely looking at the said reliefs, there seems to be nowhere in which he challenged the conduct of the primaries in true sense. Rather, what he ventilated merely relates to nomination of members or leaders of the party. The issue now is, are claims against the nomination of members or leaders of the political party justifiable? My simple answer to that question is a capital “NO”. The law is trite that Courts jurisdiction is ousted in matters dealing with internal affairs or resolution of a political party regarding nomination or leadership of that political party as in this instant case. See Section 87 (9) of the Electoral Act 2010 (as amended). Those issues are the pith of the purport of Reliefs 1, 2 and 3 of the principle reliefs sought by the appellant herein. I said so, because the appellant did not approach the trial Court to examine the way and manner the party conducted its primary election or complaint on whether it was in strict compliance with the Constitution and Guidelines laid by the party. See Emeka vs Okadigbo (2012) 18 NWLR (Pt.1331) 58.

His complaint therefore did not relate to or was not confined within the purview or precinct of Section 87 (9) of the Electoral Act 2010 (as amended) as would clothe the trial Court with jurisdiction to enquire into and determine his grouse. See Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556; Onuoha vs Okafor (1983) 2 SCNLR 244.

There is no gainsaying and it is even settled law, that power or right to sponsor or nominate a candidate for an election is purely a domestic affair of the political party. This also presupposes that issue of leadership and/or membership of a party is an internal or domestic affair of a party. It is within the political party’s jurisdiction and is indeed “No Go area” for Courts, as they lack jurisdiction to delve into such affair or matters. The Court’s jurisdiction is ousted because such subject matter it non-justiciable. See PDP v Sylva (2012)13 NWLR (Pt.1316) 85.”  (underlining mine).

If the above argument represents the law as it is now then, one is minded to ask, on what premises was the decision of the trial founded?

It is believed that since there is in motion a process of seeking redress by the 1st defendant, awaking the findings of the appellate court would be proper in the circumstance.

 

  1. G Jamala, Esq. LL.B (Hons.) BL, LL.M

Tuduru Ede, SAN & CO

Port Harcourt.

(08069306983)

 


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