The Appellant and three others, including the 3rd Respondent contested the Peoples Democratic Party's primaries for election of the candidate to represent Aguata Federal Constituency in the House of Representatives at the National Assembly.
The primaries were conducted on 10th January 2011. At the conclusion of the exercise the 3rd Respondent was said to have scored the highest number of votes and her name was submitted to INEC (1st Respondent) as the party's candidate.
The Appellant, however, contended that he was the one who scored the highest number of votes and that it was his name that should have been submitted to the 1st Respondent. Being dissatisfied with the outcome of the primaries, he instituted an action before the Federal High Court sitting at Awka (the trial court) for, inter alia, a declaration that he is the lawful candidate of the PDP (2nd Respondent) for the House of Representatives Aguata Federal Constituency; that the 3rd Respondent is not the winner of the primaries and for an order substituting or replacing his name for that of the 1st Respondent as the candidate of the PDP for the said Aguata Federal Constituency.
The suit was filed on 8th April 2011 on the eve of the election, which took place on 9th April 2011.
The 2nd and 3rd Respondents (as 2nd and 3rd Defendants) entered a conditional appearance to the suit and filed a joint Statement of Defence.
They also filed a motion on notice challenging the court's jurisdiction to entertain the suit on various grounds. On 22/7/2011 the trial court struck out the suit for want of jurisdiction. The court ruled:
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1.
That the 1st Respondent (INEC) is not a necessary party to the suit;
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2.
That it lacked jurisdiction to entertain the action as it did not fall within the provision of Section 251(1)(p) (q) and (r) of the 1999 Constitution; and
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3.
That the Federal High Court lacks jurisdiction to hear and determine pre-election matters.
The Appellant was dissatisfied with this decision and filed an appeal before the Enugu Division of the Court of Appeal. At the hearing of the appeal the court, suo motu, invited the parties to address it on whether the appeal had not become academic since the election had already taken place on 9th April, 2011 and 3rd Respondent had assumed her seat in the House of Representatives and also in view of the decision of this court in Imegwu v. Okolocha (2013) 9 NWLR (Pt.1359) 347 and the provision of Section 141 of the Electoral Act.
The parties addressed the court accordingly. In respect of the issues for determination formulated by the Appellant and adopted by the Respondents, the court held, inter alia that INEC is a necessary party to the suit and that by virtue of Section 87(9) of the Electoral Act 2010 (as amended) the Federal High Court has jurisdiction to entertain a suit at the instance of an aspirant who alleges that any of the provisions of the Act or the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for an election.
However, notwithstanding the resolution of the issues for determination in the appeal in the Appellant's favour, the lower Court dismissed the appeal based on the issue it raised suo motu and held that the election having taken place, the suit had been overtaken by events and rendered academic and that in the circumstances the trial court lacked jurisdiction to continue to entertain it.
The Appellant, not surprisingly is dissatisfied with the decision. This is the crux of the appeal now before this court.
