UDO BROWNSON EKEMINUA V. ENO JAMES AKPAN & ORS. (2023)

Background

This appeal arose from a pre-election dispute concerning the nomination of a candidate for the Onna Constituency seat in the Akwa Ibom State House of Assembly. The appellant, Udo Brownson Ekeminua, asserted that he had contested and won a primary election organised by a faction of the All Progressives Congress (APC). He relied on documents including expression-of-interest and nomination forms, the result of the primary election, and a report said to have been issued by the Independent National Electoral Commission (INEC) after monitoring the exercise.

Despite the appellant’s claim, the APC submitted the name of Eno James Akpan as its candidate for the constituency, and INEC published his particulars. The appellant commenced proceedings at the Federal High Court, Uyo Judicial Division, seeking declarations that he was the validly elected candidate of the APC and that the primary election from which he emerged had been validly conducted and monitored in accordance with the Electoral Act, 2022.

The respondents challenged the competence of the action. Their principal contention was that the appellant had not participated in the authentic APC primary election conducted under the authority of the party’s National Working Committee—the exercise which produced the 1st respondent. They therefore argued that he lacked the legal standing to challenge that primary or the nomination resulting from it. The Federal High Court upheld the objection and dismissed the appellant’s action. The appellant appealed to the Court of Appeal.

Issues

1. Whether the trial Judge was right to hold that the appellant lacked locus standi to institute and maintain the pre-election action.
2. Whether there was sufficient evidence before the trial court to entitle the 1st respondent to judgment.
3. Whether the Court of Appeal was required to determine every issue raised in the appeal after concluding that the trial court had no jurisdiction.

Ratio Decidendi

The Court of Appeal held that locus standi is the legal capacity or right of a person to institute proceedings and be heard by a court. It is a condition precedent to the determination of a case on its merits. Where a claimant lacks standing, the action is incompetent and the court lacks jurisdiction to entertain it.

In deciding whether a claimant has standing, the court must examine the cause of action. A cause of action consists of the facts giving rise to an enforceable claim, including the defendant’s wrongful act and the consequential damage. In cases where legislation specifically identifies the persons who may sue, standing becomes principally a question of statutory interpretation.

The court examined sections 29(5), 84(14) and 152 of the Electoral Act, 2022, together with section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. These provisions restrict the right to institute the relevant pre-election proceedings principally to an “aspirant”—a person who aspires, seeks or strives to contest an election and, in the applicable context, one who participated in or ought to have participated in the relevant party primary.

Although the appellant could generally be described as an aspirant because he sought the party’s nomination, the Court held that this general description did not give him standing under the specific statutory provisions relied upon. He did not participate in the primary election which, according to the uncontroverted evidence accepted by the court, produced the 1st respondent as the APC’s candidate. Consequently, he could not invoke section 29(5) to challenge information supplied by the candidate, section 84(14) to complain of non-compliance with the Electoral Act or party guidelines, or section 285(14)(a) and (b) of the Constitution to challenge the conduct of the party or INEC in relation to the nomination.

The Court further held that the fact that INEC allegedly monitored the appellant’s separate primary did not cure the fundamental defect in his standing. Monitoring of an exercise could not, without more, establish that the exercise was the legally recognised primary of the political party.

Court Findings

The Court struck out ground two of the notice of appeal because no issue was distilled from it; a ground from which no issue is formulated is deemed abandoned. It also struck out the 1st respondent’s brief of argument for being filed one day out of time under the applicable Election Judicial Proceedings Practice Directions, and discountenanced the appellant’s reply to that incompetent brief.

On the central issue, the Court agreed with the trial court that the appellant lacked locus standi. Since standing was absent, the Federal High Court had no jurisdiction to entertain the action. The Court declined to determine the appellant’s further complaint concerning the evidence allegedly supporting the 1st respondent, reasoning that such consideration would be academic once the jurisdictional defect had been established.

Although an intermediate appellate court ordinarily has a duty to determine all issues submitted for decision, that duty is subject to the exception that it need not resolve substantive issues where the lower court lacked jurisdiction to entertain the action.

Conclusion

The Court of Appeal unanimously dismissed the appeal for want of merit and affirmed the result reached by the trial court. However, because the action was incompetent for want of standing and jurisdiction, the suit numbered FHC/UY/CS/156/2022 was struck out. The parties were ordered to bear their respective costs.

Significance

The decision reinforces the strict statutory character of Nigerian pre-election litigation. A person cannot challenge a political party’s primary merely by asserting that he conducted or won a competing exercise. The claimant must fall within the precise class of persons authorised by the Constitution and Electoral Act, ordinarily an aspirant who participated in, or was entitled to participate in, the relevant primary. The judgment also illustrates that jurisdictional questions take priority over the merits and that a finding of want of standing can terminate the action without examination of the substantive electoral evidence.