CASE TITLE: SULEIMAN & ORS v. INEC & ORS (2023) LPELR-59785(CA)
JUDGMENT DATE: 17TH FEBRUARY, 2023
- AMINA AUDI WAMBAI, JCA
- MOHAMMED BABA IDRIS, JCA
- MUSLIM SULE HASSAN, JCA
PRACTICE AREA: PRE-ELECTORAL MATTERS
The Appellants as Plaintiffs filed an Originating Summons at the trial Court. In support of the Originating Summons, the 4th Appellant deposed to the fact that he together with the 1st and 2nd Appellants, were members of the 2nd Respondent. It was stated that in preparation for the congress of the 2nd Respondent, 28 persons purchased the Presidential Expression of Interest and Nomination forms at the rate of N100,000,000 each. And that out of the 28 persons, 23 persons filled and returned their forms and were all cleared to participate in the Presidential Primary Election of the 2nd Respondent. And that out of the 23 persons cleared, 9 persons withdrew from participating in the election and thus, it was only 14 persons that participated in the primary election and the 3rd Respondent was declared winner.
The 4th Appellant also deposed to the fact that he knows for a fact that it is only the other 13 aspirants that can question the candidacy of the 3rd Respondent and the primary election, and that a law that restricts the number of persons who can question the qualification and eligibility of a presidential candidate to just 13 persons out of over two hundred million persons is not a law made for the good governance of Nigeria. The deponent also stated that he was aware that the 3rd Respondent was the former Governor of Lagos State between 1999 – 2007 and that he had submitted an affidavit in support of his personal particulars to the 1st Respondent. It was the Appellants’ case that the 3rd Respondent had given false information in the forms submitted.
The 2nd Respondent filed a Counter Affidavit to the Originating Summons and a Notice of Preliminary Objection challenging the competence of the suit.
The trial Court after hearing the suit delivered its judgment and held that the Appellants lacked the locus standi to institute the action and that the case was incompetent. The matter was accordingly struck out.
Dissatisfied, the Appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION:
The Court determined the appeal based on the preliminary objections raised by the 2nd and 3rd Respondents. The Court further considered the appeal based on the following issues for determination:
(1) Whether having regard to the entire circumstances of this case, the trial Court was not wrong when it struck out the case of the Appellants in the manner it did.
(2) Whether the trial Court was not in error when it relied on the provision of Section 285(14) of the 1999 Constitution to strike out the case of the Appellants.
The learned counsel for the Appellants submitted that the trial Court was wrong in holding that the Appellants lack the locus standi to initiate the action. It was argued that the Appellants had inherent capacity and right to approach the trial Court to challenge the powers of the 4th Respondent to enact a law that is contrary to the tenets and spirit of the Constitution of the Federal Republic of Nigeria and their right and capacity derived from Sections 1(3), 4(8), 6(1) of the 1999 Constitution of the Federal Republic of Nigeria. The cases of IHENACHO & ANOR v. UZOCHUKWU & ANOR (1997) LPELR 1460 SC and AKINYEMI & ANOR v. BANJOKO (2017) LPELR – 42377 (CA) were cited in support.
It was submitted that the case of the Appellants in their Originating Summons was that the legislative powers conferred on the 4th Respondent under Sections 4 and 13 of the 1999 Constitution is circumscribed by the same Constitution to make only the laws that promote the peace, order and good governance of the Federation or any part thereof, and that such laws as made must be consistent with the letter and spirit of all the provisions of the Constitution.
The Appellant submitted further that Section 31(5) of the Electoral Act 2010 which donated the right to all Nigerians to approach the Court to seek a declaration that the information supplied by persons seeking election into relevant offices as published by INEC is false is a codification of constitutional rights of Nigerians and that Section 29(5) of the Electoral Act 2022 which has come to take away that right, is unconstitutional and should be so declared by the Court by virtue of Section 4(8) of the Constitution.
It was submitted that the Appellants have the right to challenge any law that impedes on their vested constitutional rights, and that the Appellants are also stakeholders in the political process as they are card carrying members of the 2nd Respondent. It was further submitted that the trial Court was wrong to have struck out the case of the Appellants on the grounds that they lacked locus standi without having regard to the circumstances of the case. The Appellant contended that Section 15 of the Court of Appeal Act places the Court in the same position as the trial Court and empowers the Court of Appeal to do all or anything which the trial Court can lawfully do in respect of the case. The Court was urged to take the case of the Appellants as a whole, consider all the aspects of the case and to do that which the trial Court failed to do.
It was further argued that the reliance of the trial Court on Section 285(14) of the Constitution of the Federal Republic of Nigeria to strike out the case of the Appellants was erroneous because a close look at Section 285(14) of the Constitution of the Federal Republic of Nigeria shows that it does not in any way affect the provision of the repealed Section 31(5) of the Electoral Act 2010 which has now been amended by the challenged Section 29(5) of the Electoral Act 2022.
It was the Appellants’ contention that while both Section 31(5) of the Electoral Act 2010 and Section 29(5) of the Electoral Act 2022 speaks of an action seeking for a declaration that the information contained in the affidavit is false which was the fulcrum of one aspect of the Appellants’ case before the trial Court, Section 285(14) of the Constitution of the Federal Republic of Nigeria 1999 on which the trial Court relied upon to strike out the case of the Appellants does not mention any suit seeking a declaration that the information contained in the affidavit is false as one of those covered by that Section. The unreported case of HON. FRIDAY OSANEBI v. MR. OZEGBE LAWRENCE & ORS WITH APPEAL NO. SC/1239/2018 was relied on.
It was then submitted that Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria is a procedural law and it cannot operate in a way that takes away the rights of Nigerian citizens which is governed by Section 31(5) now Section 29(5) of the Electoral Act 2022.
In response, counsel for the Respondent argued that the Appellants not being aspirants at the 2nd Respondent’s National Convention, lacked the requisite locus standi under Section 285(14) of the 1999 Constitution to institute the extant suit against the Respondents. It was submitted that where the allegation is for submission of false information to the 1st Respondent by a candidate, it is only an aspirant who participated in the primary election of a political party that possesses the requisite locus standi to challenge allegation of submission of false/forged documents to INEC in Court by virtue of Section 29(5) of the Electoral Act.
In conclusion, the Court upheld the preliminary objection and consequently dismissed the appeal for being incompetent.
ELECTORAL MATTERS – PRE-ELECTION MATTERS: Whether the Court has the power to confer locus standi on persons who are not aspirants under Section 29(5) of the Electoral Act 2022 (as amended)
“Can the Court “legitimately” uphold their access to the Court to challenge the candidacy of the 3rd Respondent and the power of the 4th Respondent to make certain electoral laws? Is there any compelling reason not to do so? In the case of TARZOOR VS. IORAER & ORS (2015) LPELR – 25975 (CA) PP. 92 – 93 PARAS. E, the Court of Appeal held per Pemu, JCA thus:
“However, where a Statute stipulates a provision, which ex facie carries a mandatory force, the Courts are rendered paralyzed to exercise any discretion in whatever guise to about it. The provisions of the Electoral Act are, as it relates to Election Petitions SACROSANCT. Election petitions are sui generis. Hence the provisions of the Electoral Act 2010 (as amended), regulating all aspects that relate to Petitions and Procedures at the Tribunals, including what must accompany a Petition remain SACROSANCT. OKE V MIMIKO (NO. 1) 2014 1 NWLR.pt (1388) 225; KAKA V DANIELS (2009) 14 NWLR (Pt. 1161) 416 at 427.” (Underlining is mine for emphasis)
From the above cited case, it is clear that when a statute makes a provision as to who has the legal capacity to institute an action, the Court lacks the discretion to be swayed on the argument of the interests of the common man or a person driven with passion. The Court must hear only the persons who are empowered and recognized by law to initiate such matters. This is a pre-election matter and Section 29(5) of the Electoral Act 2022 (as amended) provides that:
“An aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirement to contest the election is false, may file a suit at the Federal High Court against the candidate seeking a declaration that the information contained in the affidavit is false.”
From the above provision, it is clear that the sky is not the limit for the citizens of Nigeria when it comes to the right to challenge the candidacy of the winner of the primary elections of a political party. Emotions cannot confer legal capacity to file an action in this regard. Only an aspirant that is, someone who also participated in the election process can challenge the candidacy of the winner of the said primaries. The Appellants had themselves stated over and over again that they knew they had no locus standi to institute the action, however, they have decided to blame the 4th Respondent for their incapability and inability to challenge the candidacy of the 3rd Respondent. The law cannot gift the Appellants the locus standi they so greatly desire and wish to have only because they are “stakeholders in the political process” as they are card-carrying members of the 2nd Respondent and delegates.” Per IDRIS, J.C.A