Chief Ufikairo Monday Efet V. Independent National Electoral Commission & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

By an originating summons dated the 24th day of April, 2007 and filed before the Federal High Court (trial court) holden in Abuja, the plaintiff applied to that court for the determination of the following questions:

1. Whether the purported letter of substitution of the plaintiff with the 3rd defendant issued by the 2nd defendant satisfies the requirement of section 34(1) and (2) of the Electoral Act, 2006.
2. If the answer to question 1 is in the negative, whether the 1st defendant properly substituted the plaintiff with the 3rd defendant having regards to the peculiar facts of this case.

The salient facts giving rise to the appeal as stated by the plaintiff in the affidavit in support of the originating summons are that he was nominated the Peoples Democratic Party candidate for the Ikot Abasi Eastern Obolo State Constituency for the April, 2007 General Elections in compliance with the Electoral Act 2006 and the PDP Guidelines for the primaries. His name was forwarded along with other candidates on the 21st of December, 2006 to the 1st defendant. The plaintiff stated that when he won the primaries for nomination conducted by the 2nd defendant on or about the 30/11/06 with overwhelming majority, he was issued with a Certificate of Return dated 30/11/06.

However, by a letter dated 12/2/07 the 2nd defendant sought to substitute him with the 3rd defendant without giving any cogent and verifiable reason for the substitution. The plaintiff claimed that since nomination, he had been and still remained the candidate of the 2nd defendant for the House of Assembly Election in the Ikot Abasi Eastern Obolo State Constituency having been nominated and presented and not substituted in accordance with the provisions of the law, The plaintiff, therefore, prays the trial court for the following reliefs:

1. “A declaration that the purported letter of substitution of 3rd defendant to the plaintiff dated 12/02/07 does not contain cogent and verifiable reason for the said substitution as contemplated by the provision of Section 34(1)&(2) of the Electoral Act, 2006.
2. A declaration that the exclusion of the name of the plaintiff for the April 2007 General Election as the candidate of the 2nd Defendant in the Ikot Abasi/Eastern Obolo State Constituency is wrongful, null and void.
3. A declaration that for the purpose of the Election to the House of Assembly the plaintiff is the candidate of the 2nd defendant validly nominated and not substituted.
4. An order setting aside the substitution of the plaintiff for not being in conformity with the provisions of Section 34(2) of the Act 2006.
5. An order directing the 1st defendant to forthwith place the name of the plaintiff on the ballot as the candidate of the 2nd defendant representing Ikot Abasi Easter Obolo State Constituency in April General Election to the Akwa Ibom State House of Assembly.
6. An order of perpetual injunction restraining the 1st and 2nd defendants from recognizing or continuing to recognize the 3rd defendant as the candidate of the 2nd defendant for the election scheduled for April, 2007.”

The defendants, each, filed a memorandum of conditional appearance.

Both 2nd and 3rd defendants filed a Notice of Preliminary Objection against the action. The plaintiff responded by filing a counter affidavit to each of the Notices of the Preliminary Objection,

Meanwhile, the election which was scheduled for the 14th of April, 2007, commenced on that day in some parts of the constituency but could not be concluded. Part of the election was staggered to the 28th of April, 2007. Result was declared with the 3rd defendant emerging as the winner.

In the course of the proceedings before the trial court, the plaintiff by a motion on Notice filed on the 18th of June, 2007, sought to amend the reliefs prayed in the originating summons in the light of the election held and concluded on 28th April, 2007, after the suit had been filed. The 2nd and 3rd respondents vehemently opposed the motion on the ground that the election was held after the action had been commenced and that the appellant could not claim the result of an event which occurred after the suit had been commenced, The Learned Trial Judge gave her ruling on the 17th of July, 2007 wherein she refused the amendment sought by the plaintiff.

Dissatisfied, the plaintiff as appellant filed a Notice and Grounds of Appeal before the Court of Appeal, Abuja (court below). The court below allowed the appeal. It however refused to grant the prayer of the appellant inviting it to invoke its general powers under section 15 of the Court of Appeal Act to hear and determine the case on the ground that enough materials were not placed before the court to determine the actual person that won the primaries in view of the fact that primary elections were conducted in the case. The court below remitted the case to the Federal High Court for re-hearing.

Dissatisfied with the decision of the court below, the appellant appealed further to this court.

In this court and in compliance with the Rules of the Court, parties filed and exchanged briefs of argument. The appellant placed the following issues for determination by this court:

1. “whether the alleged dispute as to who won the party primary election as between the appellant and the 3rd respondent is relevant to the determination of the real issue in the case challenging unlawful substitution brought pursuant to section 34(2) of the Electoral Act, 2006.
2. Having regard to the fact that this case was initiated by way of Originating Summons specifically seeking the interpretation of Section 34(2) of the Electoral Act, 2006 vis-a-vis the letter of substitution dated 12th February, 2007, the life span of the res, and having had the letter of substitution placed before it, whether the Court of Appeal was not in error to decline to invoke it powers under section 15 (formerly section 16) of the Court of Appeal Act on the ground that the appellant had not placed enough materials before the Court to establish who won the party primary election between him and the 3rd respondent.

The 1st respondent filed a Preliminary Objection by way of Motion on Notice seeking for the striking out and or dismissal of the appeal for being an abuse of court process. The following sole issue was formulated by the 1st respondent in the event of failure of the Preliminary Objection. The issue is as follows:

(i) “Whether in view of the order of the Court of Appeal allowing the appellant’s appeal and ordering for a retrial before the trial court the appellant can compel the court of Appeal to invoke its power under section 15 of the Court of Appeal Act 2004 to retry the matter itself.

(Grounds 1 and 2 of the Notice of Appeal)”