The Court of Appeal in Abuja has set aside the judgment of a Federal High Court which ordered the Peoples Democratic Party (PDP) to allow the participation of 381 ad hoc delegates in the February 22 primary election that produced Mr Asue Ighodalo as the candidate of the party in the September 21 governorship election in Edo State.
A three-member panel of the appellate court set aside the judgment of Justice Ekwo delivered on July 4, on the grounds that the trial court lacked jurisdiction to entertain the suit of the aggrieved delegates in the first place, having lacked the necessary legal rights to initiate the suit.
Delivering judgment in the suit marked: FHC/ABJ/CS/165/2024, Justice Inyang Ekwo had faulted the exclusion of the plaintiffs and 378 other delegates in the February 22, primary election for the selection of the PDP’s candidate in the forthcoming governorship election in Edo State, and subsequently ordered their inclusion in the primary election.
Dissatisfied with the judgment of Justice Ekwo, the PDP approached the appellate court, with a 25-ground appeal, amongst which are that the trial court lacked jurisdiction to entertain the case of the plaintiffs because they are not aspirants who are clothed by law to challenge such primary.
Besides, the PDP submitted that the issue of primary is an internal matter of a political party which is outside the jurisdiction of any court.
Delivering judgment in the appeal Monday, the three-member panel agreed with the submissions of the PDP and allowed the appeal.
The appellate court, in the judgment, stated that the first to third respondents do not have the wherewithal to challenge the PDP over the primary, since they were never aspirants seeking political office.
According to the judgement, “It is only an aspirant that can challenge the primary election of a political party.”
The appellate court, while holding that primary election is an internal affair of any political party, pointed out that the grievances of the plaintiffs cannot be entertained by any court, as they are not contesting political office but selected to only participate in the selection of a candidate for the party.
Three aggrieved ad hoc delegates, Kelvin Mohammed, Gabriel Okoduwa and Ederaho Osagie had sued the PDP on behalf of themselves and 378 other delegates over their exclusion in the February 22 primary election that produced Ighodalo as the standard bearer of the PDP in the forthcoming election in Edo State.
Besides the PDP, other respondents included the Independent National Electoral Commission (INEC), PDP’s National Secretary and the Vice-Chairman, South-south.
They had asked the court to determine amongst others whether their exclusion from the said primary was not in breach of the party’s constitution.
Besides, they had urged the court to order the PDP to allow their participation in the poll if the questions raised for determination were in their favour.
Delivering judgment in the suit last month, the court observed that the primary failed to comply with Sections 82 of the Electoral Act, 2022; the guidelines for the conduct of the poll and Article 50(3) of the party’s constitution.
Citing judicial authorities, Justice Ekwo said: “It is mandatory for a political party such as the 2nd defendant (PDP) to comply with its constitution.”
While stressing that parties are bound by the Constitution of Nigeria, the Electoral Act and their own constitution and guidelines, Ekwo had held that where they act contrary to the provisions of the law and the guidelines which they have enacted for themselves, such actions will be declared invalid.
While holding that the case of the plaintiffs had merit Justice Ekwo subsequently ordered the PDP not to exclude them from the February 22 primary.
The number four question read: “Whether by virtue of the provisions of Article 50(3) of the constitution of the 2nd defendant, an exclusion of the plaintiffs and other lawfully elected delegates whose names and election results appear on Exhibits BID 8A to 8L, from participating in the scheduled governorship primary election of the 22nd of February, 2024 by the defendants, such primary election can be said to be lawful, valid, legitimate or constitutional?”
Delivering the judgment, Justice Ekwo answered the number four question posed by the plaintiffs in affirmative.
“Consequently, I find that the case of the plaintiffs succeeds on the merit upon preponderance of evidence as required by law.
“Before I answer the questions formulated by the plaintiffs, there is need to say that question 1 did not adduce evidence on it.
“I answer the other questions as follows:
“Question 2 in the affirmative; question 3 in the negative, and question 4 in the affirmative.
“I enter judgment on the terms as follows:
“A declaration is hereby made that by virtue of the provisions of Article 50 (3) of the Constitution of the 2nd defendant (as amended in 2017), the plaintiffs together with the other lawfully elected delegates, whose names and election results appear on Exhibits BID 8A to 8L herein, are the lawfully elected Ward Congress Delegates in their respective wards and by virtue of which the defendants cannot exclude them from participating as 3 Ad-Hoc Ward Delegates at the governorship primary election of Edo State slated for the 22 of February, 2024 or any other date.
“An order is hereby made directing the defendants who are bound by the provisions of Section 82 of the Electoral Act, 2022 and Article 50 (3) of the 2nd defendant’s constitution (as amended in 2017) to abide by the outcome of the 3 Ad-Hoc Delegates Ward Congress of February 4, 2024, at which the plaintiffs and the other 378 delegates, whose names and election results appear on Exhibits BID 8A to 8L were elected and to allow the plaintiffs and the 375 other lawfully elected delegates participate in the primary election of February 22, 2024.
“An order of Mandatory Injunction is hereby made restraining the 1st, 2nd, 3rd defendants from unlawfully excluding the plaintiffs and the other lawfully elected delegates whose names and election results appear on Exhibits BID 8A to 8L herein, from participating as 3 Ad-Hoc Ward Delegates in the governorship election primaries of the 2nd defendant slated for the 22nd of February, 2024 or any other date.
“This is the order of this court,” the judge said.
However, the judgment has been set aside on grounds that Ekwo was wrong to have dabbled into the matter of party primary which is not justiciable
