Jenkins Giane Duvie Gwede Vs Independent National Electoral Commission (Inec) & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Benin City in appeal No. – CA/B/237/2012 delivered on the 22nd day of May, 2013 in which the court resolved the two issues calling for determination in favour of appellant but concluded by allowing the appeal in part and dismissed the claims of the appellant who was the 1st plaintiff at the trial court in suit No. FHC/ASB/CS/110/2011.

The facts of the case include the following:

The 2nd respondent, together with the present appellant are members of the 4th respondent, Democratic Peoples Party (DPP), a registered political party, the 2nd plaintiff in the suit. The 1st plaintiff is the present appellant, while the 2nd plaintiff is the 4th respondent in this court.

The present 2nd respondent contested and won the primary election of the 4th respondent for the election into Ugelli North Constituency II for the Delta State House of Assembly. Later on, the 2nd respondent, by notice in writing to the 4th respondent withdrew from contesting the said election, collected his deposit of N2 million paid to the 4th respondent for the purpose of contesting the election as a result of which appellant was used by the 4th respondent to substitute the 2nd respondent. The documents used in effecting the substitution were tendered and admitted as exhibit P1 at the court of trial. After the substitution, the 1st respondent, INEC published a list of candidates for the said election which list included the name of appellant as the candidate of the 4th respondent. However, without any further instruction or imput from the 4th respondent, the 1st respondent released another list in which the 1st respondent put in the name of 2nd respondent instead of that of appellant, as the candidate of the 4th respondent.

On his part, 2nd respondent denied that he withdrew from the election and also contended that the trial court had no jurisdiction to entertain the action, an election haven taken place as the matter is a pre-election matter. The election in issue was conducted on the 26th day of April, 2011 while the action was instituted on the 29th day of April, 2011.

The claim of appellant at the trial court was for the determination of the following questions:-

(a) Whether the 1st plaintiff who having been duly nominated as the candidate of the 2nd plaintiff for the election into the Delta State House of Assembly to represent Ugelli North Constituency II in the Delta State House of Assembly and the 2nd plaintiff having won the election whether the 1st plaintiff is not entitled to be issued with a certificate of return in respect of the said election.

(b) Whether the 2nd Defendant who personally signed a letter withdrawing from the election and was validly substituted by the 1st plaintiff as the candidate can validly contest that he is still the candidate of the 1st plaintiff in respect of the material election.

(c) Whether the 1st defendant can pick and choose candidate for the 2nd plaintiff, a political party.

The plaintiffs then sought the following reliefs:

(a) A declaration that the 1st plaintiff being the validly nominated candidate of the 2nd plaintiff is the person entitled to be issued with a certificate of return in respect of the House of Assembly election in Ugelli North II Constituency of Delta State.

(b) An order of the Honourable Court directing the 1st defendant to issue the 1st plaintiff with a certificate of return in respect of the House of Assembly for Ugelli North II Constituency of Delta State.

(c) An order restraining the 1st defendant from recognizing the 2nd defendant as the candidate of the 2nd plaintiff and also from issuing any certificate of return in the name of the 2nd defendant.