➥ CASE SUMMARY OF:
Uba v. Ozigbo, INEC, PDP (SC.CV/772/2021, October 21, 2021)
by Branham Chima.
➥ ISSUES RAISED
Primary election not conducted by NWC;
Locus standi to challenge primary election.
➥ CASE FACT/HISTORY
By an originating summons dated the 5th day of July, 2021 and filed same date, the Appellant herein contended that his faction of the Peoples Democratic Party conducted a primary election on the 26th of June, 2021 at Paul University, Awka, Anambra State, pursuant to the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 9th of June, 2021 by Honourable Justice O. A. Adeniyi in suit No. HC/CV/774/2021 between SAMUEL ANYAKORAH (for himself and on behalf of all Local Government Area Chairmen and ward Executives who emerged from the Anambra P.D.P. congresses conducted on the 24th of November, 2017 and 1st December 2017, under the supervision of Sir Chukwudi Umeaba (Acting State Caretaker Committee) v PEOPLES DEMOCRATIC PARTY (P.D.P.) & 2 Ors. That the Appellant contended that the primary election by that faction of Peoples Democratic Party produced him as the winner of the primary election.
That the primary election conducted by the National Executive Committee of the 3rd Respondent in which the Appellant was elected the candidate of the party was conducted in substantial compliance with the 1999 Constitution (as amended), the Electoral Act 2010 (as amended), as well as the Constitution of the 3rd Respondent. The 2nd Respondent (INEC) monitored the exercise and duly issued a report affirming the due conduct of the primary. It is this primary election that was conducted by the National Executive Committee of the 3rd Respondent under the Chairmanship of Comrade Philip Shuaibu (Deputy Governor of Edo State) that the learned trial Judge in his judgment, held as being in disobedience to the order of O. A. Adeniyi J, of the High Court of the Federal Capital Territory, Abuja.
This is an appeal against the judgment of the Court of Appeal Awka Judicial Division, holden at Enugu and delivered on 3rd September, 2021 wherein the Court below set aside the judgment of O. A. Nwabunike, J of the High Court of Anambra State in suit No. A/230/2021 between Senator Ugochukwu Uba (Appellant herein) v INEC & 2 Ors. By virtue of the judgment delivered by Nwabunike, J aforementioned on 19th July, 2021, the 1st Respondent herein filed an appeal at the lower Court which culminated in the judgment of the lower Court delivered on 3rd September, 2021 allowing the appeal and setting aside the said judgment of Anambra State High Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the learned Justices of the Court of Appeal were correct in holding that the appellant lacks the locus standi to incept this action ab initio?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANT DID NOT PARTICIPATE IN THE NATIONAL WORKING COMMITTEE ORGANISED PRIMARY ELECTION
‘My Lords, I note that from the affidavit of 30 paragraphs in support of the Appellant’s originating summons, at the trial Court, the Appellant did not in any way whatsoever state that he participated in the primary election conducted at the instance of the National Executive Committee of the 3rd Respondent on 26th June, 2021 held at Professor Dora Akunyili Women Development Centre Awka. In fact he described the said primary election as “illegal” and “unlawful”. At the lower Court, the Appellant, contrary to his case at the trial Court decided to use his brief of argument to embark on a summersault by claiming that he took part in the primary election conducted by the 3rd Respondent at Professor Dora Akunyili Women Development Centre, Awka. Having regard to the circumstances of this case, can it be said that the Appellant took part in the 3rd Respondent’s primary election held on 26th June, 2021 at Professor Dora Akunyili Women Development Centre, Awka, so as to imbue him with locus standi to challenge the said election as prescribed in Section 87 (9) of the Electoral Act, 2010 (as amended)? To this, the Court below, at pages 123 – 125 of the record made the following far reaching findings and conclusion:- “It is no wonder that the 1st Respondent, in full recognition of the impact of the judgment of the Court of Appeal on his position in this case as stated in the Originating Summons before the trial Court has in paragraphs 4.2.7 to 4.2.12 of his Brief of argument tried to embellish the facts averred in the affidavit in support of his originating summons and change the narrative by advancing new facts not contained therein nor in his further affidavit. Now relying on the result of the primary election conducted by the 3rd Respondent (PDP) at Professor Dora Akunyili Women Development Centre, which was exhibited by the 3rd Respondent to his counter affidavit, he contended for the very first time that in addition to taking part in the primary election at the Paul University, Awka, he also participated in the said Governorship primary election simultaneously held at Professor Dora Akunyili Women Development Centre, Awka, where the Appellant emerged as winner and candidate for the Governorship election of Anambra State. It is significant that this is the same election which the 1st Respondent had strongly degraded before the trial Court as well as before this Court, contending that it was conducted in flagrant “disobedience” to the judgment of the Federal Capital Territory High Court in Exhibits C1 and C2; and so he had prayed the trial Court to declare it as invalid, improper and a violation of Section 87(9) of the Electoral Act and Sections 25 and 50(1) of the PDP Constitution 2017 (as amended) a prayer which the trial Court acceded to … Thus, the judgment of Adeniyi J, of the Federal Capital Territory High Court having been declared null and void, the 1st Respondent quickly jumped ship to claim that he was actually a contestant who participated in the primary election conducted by the 3rd Respondent (PDP) at the Professor Dora Akunyili Women Development Centre. This new advocacy is however not borne out by the originating summons and the affidavit in support, which are the only documents that can be examined to determine the locus standi of a party. He is not allowed to rely on the processes of the defendants to the action to establish his locus standi, to approach the trial Court. Thus, the 1st Respondent’s reliance on the result sheet of the primary election exhibited to the counter affidavit of the 3rd Respondent cannot assist him, because by law, it does not avail him in establishing locus standi.” In agreeing with the Court below as reproduced above, it is my view that the findings are unassailable.’
THE FACTIONAL ELECTION THAT PRODUCED THE APPELLANT IS UNKNOWN TO LAW HAVING NOT BE CONDUCTED BY THE NWC
‘In the instant case, the Appellant herein clearly stated in the affidavit in support of his originating summons that he took part in the primary election held at St. Paul University, Awka in obedience to the judgment of Adeniyi J of the Federal Capital Territory High Court and that the said election was conducted by Sir Chukwudi Umeaba who authored and signed the alleged result of the primary election. He is said to be the leader of the State Executive of the 3rd Respondent. That Appellant emerged winner of that contraption he called party primary election. But from the authorities of this Court cited above, that assemblage at St. Paul University was nothing other than an illegal and an unlawful gathering of party delinquents. The outcome therefore was a sham and a farce. See Emenike v PDP (supra). Not having been conducted by the National Executive Committee 3rd Respondent, the primary election held at St. Paul University on 26th June, 2021 which the Appellant took part is unknown to law and is a nullity. The law is very clear that a State executive of a political party has no vires to conduct party primaries. It is only the National Executive Committee of the party that is recognized as the proper organ of the party saddled with the responsibility of conducting party primaries.’]
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✓ DECISION:
‘Having agreed with the Court below that the appellant lacked the locus standi to institute this action at the trial Court; the simple deduction is that the trial Court had no jurisdiction to have entertained the suit. The Court below made this point very clear in its judgment. Thus, at this stage it becomes academic and a waste of the precious time of this Court to consider any other issue. The judgment and orders of the trial Court having been set aside by the Court below, there remains nothing more to be said in this appeal. It is my view that this appeal lacks merit and is hereby dismissed. The judgment of the Court below, delivered on 3rd September, 2021, is hereby affirmed. Five Million Naira (N5m) costs for the 1st Respondent only, to be paid by the Appellant. Appeal Dismissed.’
➥ FURTHER DICTA:
⦿ IT IS NOT THE BUSINESS OF THE COURT TO NOMINATE PARTIES FOR ELECTION
It is not the business of any Court to select or nominate candidates for any political party for election. The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Courts do not have jurisdiction to decide who should be sponsored by a political party as a candidate in an election. See Onuoha v Okafor (1983) 2 SCNLR 244, Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310, Shinkafi & Anor v Yari & Ors (2016) LPELR – 26050 (SC) page 57 paragraphs A – D, Olofu & Ors v Itodo & Anor (2010) 18 NWLR (pt 1225) 545. The above position has been the law and has not changed because issue of selection and/or nomination of a candidate for an election is strictly within the domestic jurisdiction or power of political parties. — J.I. Okoro, JSC.
⦿ CANDIDATE WHO FAILED TO PARTICIPATE IN PRIMARY ELECTION CANNOT BE HEARD TO COMPLAIN ABOUT THE PRIMARIES
But before a candidate for the primaries can invoke Section 87 (9) of the Electoral Act, 2010 (as amended), and thus be imbued with locus standi or the ground to sue, he must have been screened and cleared by his political party and actually participated in the said primaries. Where a candidate who bought nomination form, was screened and cleared to participate in the primaries but failed to actually participate, such a candidate has lost the right to be heard in a Court of law under Section 87 (9) of the Electoral Act (supra). See Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Alahassan v Ishaku & Ors (2016) LPELR – 40083 (SC), Emeka v Okadigbo (2012) 18 NWLR (pt 1316) 553, Shinkafi v Yari (supra), Jev & Anor v Iyortyom & Ors (2014) 14 NWLR (pt 1428) 575, Emenike v PDP & Ors (2012) 12 NWLR (pt 1315) 556, Eyiboh v Abia & Ors(2012) 16 NWLR (pt 1325) 51, Odedo v PDP & Ors (2015) LPELR – 24738 (SC), Lado v CPC (2011) 18 NWLR (pt 1279) 689, PDP v Sylva & Ors (2012) 13 NWLR (pt 1316) 85. — J.I. Okoro, JSC.
⦿ IT IS ONLY THE NATIONAL WORKING COMMITTEE OF A POLITICAL PARTY THAT IS SADDLED WITH CONDUCTING PRIMARY ELECTION
‘In the instant case, the Appellant herein clearly stated in the affidavit in support of his originating summons that he took part in the primary election held at St. Paul University, Awka in obedience to the judgment of Adeniyi J of the Federal Capital Territory High Court and that the said election was conducted by Sir Chukwudi Umeaba who authored and signed the alleged result of the primary election. He is said to be the leader of the State Executive of the 3rd Respondent. That Appellant emerged winner of that contraption he called party primary election. But from the authorities of this Court cited above, that assemblage at St. Paul University was nothing other than an illegal and an unlawful gathering of party delinquents. The outcome therefore was a sham and a farce. See Emenike v PDP (supra). Not having been conducted by the National Executive Committee 3rd Respondent, the primary election held at St. Paul University on 26th June, 2021 which the Appellant took part is unknown to law and is a nullity. The law is very clear that a State executive of a political party has no vires to conduct party primaries. It is only the National Executive Committee of the party that is recognized as the proper organ of the party saddled with the responsibility of conducting party primaries.’
‘Party primaries are conducted by the National Executive Committee of political parties. Definitely, not by the State executive of the party. The Appellant lacked the locus standi to incept the suit giving birth to this appeal. Counsel ought to advise their clients when requested to file such frivolous suits in Court.’ — J.I. Okoro, JSC.
⦿ A PARTY MUST BE CONSISTENT IN STATING HIS CASE BEFORE THE HIERARCHY OF COURTS
he law is settled beyond any controversy that a party must be consistent in stating his case at the trial Court up to the appellate Court. A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate. See Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (pt 639) 1192, Asaboro & Anor v Pan Ocean Oil Corporation (2017) LPELR – 41558 (SC), Comptroller General of Customs & Ors v Comptroller Gusau (2017) LPELR – 42081 (SC), Akaninwo v Nsirim (2008) All FWLR (pt 410) 610, Oliyide & Sons Ltd v Obafemi Awolowo University (2018) LPELR 43711 (SC). — J.I. Okoro, JSC.
⦿ COUNSEL CANNOT USE HIS ADDRESS TO INTRODUCE EVIDENCE NOT PRESENTED AT THE TRIAL
The law prohibits counsel from introducing evidence that a party did not offer at the trial. The law is trite that counsel cannot use his address to the Court to introduce evidence which was not adduced by the party during the trial. Such evidence in counsel’s address shall not be used for the resolution of issue in the appeal. Even where such evidence was available but not adduced at the trial of the suit, counsel does not have the province or latitude to introduce it by any stretch of ingenuity in his address. See Emeka v IGP (2021) 10 NWLR (pt 1785) 489 at 508, Agi v PDP (2017) 17 NWLR (pt 1595) 386. — J.I. Okoro, JSC.
➥ PARTIES:
⦿ APPELLANT(S)
Senator Ugochukwu Uba
⦿ RESPONDENT(S)
Valentine Ozigbo
Independent National Electoral Commission (INEC)
Peoples Democratic Party (PDP)
➥ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Adewole Adebayo.
⦿ FOR THE RESPONDENT(S)
Alex Ejesieme, SAN, for 1st Respondent;
Oluwole Osaze Uzzi, Esq, for 2nd Respondent;
Emmanuel Enoidem, Esq., for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
