Hon. (Mrs) Dorathy Mato V. Hon. Iorwase Herman Hember & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the judgment of the Court of Appeal sitting in Makurdi delivered on 11th July, 2016 wherein the Lower Court resolved issues raised in the 2nd respondents Notice partly in favour of the 2nd respondent but dismissed the appeal for lacking in merit. A brief statement of facts upon which this appeal is predicated are as follows:

The appellant herein, as plaintiff in the trial Court, issued an Originating Summons against the respondents herein, as defendants, and submitted the following questions for the determination of the trial Court, to wit:

1. Whether in view of the plaintiff’s petition dated 11th December, 2014 against the 1st defendant and the 2nd defendants appeal committee and the upholding of same by the 2nd defendants National Assembly Primaries Election Appeal Committee conveyed in its report dated 16th December, 2014 and the provisions of articles 13.4(ix), 14(iii), and (viii), 18(iv) and 20(iv)(d) of the APC Constitution 2014 (as amended), only the plaintiff is the duly competent qualified and nominated

candidate of the 2nd defendant for VANDEIKYA/KONSHISHA Federal Constituency Elections fixed for 28th March, 2015

2. Whether in the face of numerous illegalities/irregularities pertaining to absence of the official list of electoral committee members, absence of official list of delegates, absence of list of aspirants, adoption to open ballot system of voting instead of secret ballot, omission of names of two delegates each from four (4) wards in Vandeikya Local Government and exclusion of delegates from Mbakyaha ward of Vandeikya Local Government from voting and the tense atmosphere and lack of proper accreditation coupled with the participation of Swende Ager and Dickson Faasema from Benue State APC office, contained in the report of the 3rd defendants monitoring committee dated 11th December, 2014, it is legal, regular and competent to present the 1st defendant as the duly nominated candidate of 2nd defendant for Vandeikya/Konshisha Federal Constituency Election slated for 28th March, 2015 in view of Articles 7(viii) and (ix), 9.3(iv) of the APC 2014 Constitution (as amended), Articles 4.A(7) and (13) I and II followed by General Provision and

Articles 15 of the 2014 APC Guidelines for nomination of candidates for public office

3. Whether on a community reading of the provisions of Articles 9(1)(i), (ii), (iv) and (v), 9.3(i) and (ii) of APC 2014 Constitution (as amended), Articles 3, 4(A)(i) and (B), and 5 of the 2014 APC Guidelines for the Nomination of Candidates for public for public office catering for membership of an aspirant and its incidents and the votes and proceedings of the House of Representatives (No: 29) of 16th December, 2014 (pp. 516-517 thereof) Wherein the defection of the 1st defendant to 2nd defendant from the Peoples Democratic Party (PDP) was announced and published, the 1st defendant was eligible, qualified and competent to participate in the 2nd defendants primary elections from 7th 10th December, 2014 and be declared duly nominated candidate of 2nd defendant for the 28th March 2015 National assembly Elections
4. Was it legal, regular and valid for the 2nd defendant to conduct its primaries at HAF HAVEN HOTEL MAKURDI outside the Vandeikya/Konshisha Federal Constituency in spite of the mandatory provisions of Section 87(4)(c)(i), Section 87(7) of the

Electoral Act 2010 (as amended) read with Articles 14.ii of the 2014 APC Guidelines for Nomination for public office, where 1st defendant was declared nominated by 2nd defendant in the presence of 3rd defendant

Consequently, the appellant claimed against the respondents jointly and severally the following declaratory reliefs, thus:-

1. A declaration that by virtue of the report of the 2nd defendants Appeal committee dated 16th December 2014 and the combined provision of Articles 13.4(ix), 14(iii) and (viii) and 20(iv)(d) of the APC Constitution 2014 (as amended) only the plaintiff is the duly qualified and competently nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency election fixed by 3rd defendant against 28th March 2015.
2. A declaration that in the face of numerous illegalities/irregularities manifest and specified by the 3rd defendants Monitoring Team Report dated 11th December, 2014 and particularized therein it is illegal, irregular and incompetent for 2nd defendant to present 1st defendant as its nominated candidate to 3rd defendant for the Vandeikya/Konshisha Federal Constituency

Election slated for 28th March 2015 having reference to the combined provisions of Articles 7(viii) and (ix), and 9.3(iv) of the APC Constitution 2014 (as amended) read with Articles 4(A)(7) and (B), 14.II followed by General Provisions and Articles 15 of the 2014 APC Guidelines for Nomination of Candidates for public office.

3. A declaration that on a community reading of the combined provisions of Articles 9(1)(i), (ii), (iv) and (v), 9.3(i), 9.4(i) and (ii) of the APC 2014 Constitution (as amended) with Articles 3, 4(A)(1), 4(B) and 5 of 2014 of APC Guidelines for the Nomination of candidates for public office, governing party membership and its incidents and taking into account the votes and proceedings of the House of Representatives of 16th December 2014 on which date 1st defendant defected on the floor of the House from PDP to APC, the 1st defendant was ineligible, unqualified and incompetent to participate in the 2nd defendants primaries from 7th 10th December 2014 and therefore his participation, and purported nomination as candidate of 2nd defendant and subsequent acceptance and recognition by 3rd defendant is illegal,

irregular, invalid, null and void.

4. A declaration that having due regard to the combined mandatory provisions of Section 87(4)(c)(i), Section 87(7) of the Electoral Act 2010 (as amended) and Articles 14.II of the 2014 APC Guideline for Nomination of candidates for public office stipulating that members shall assemble at the Federal Constituency Headquarters and vote by secret ballot, it was illegal, irregular, invalid, null and void for the 2nd defendant to conduct its primaries at HAF HAVEN HOTEL, MAKURDI, Benue State capital, far outside the Vandeikya/Konshisha Federal Constituency Headquarters located at Vandeikya town, in Vandeikya Local Government.
5. An order directing the 3rd defendant to move, strike out or delete the name of the 1st defendant from the list of candidates presented to it by 2nd defendant and insert or enter the name of plaintiff as the duly nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency Election fixed for 28th March 2015 or on any other date to be determined by 3rd defendant.
6. An order directing the 2nd defendant to present the name of plaintiff to 3rd defendant as the duly

nominated candidate for Vandeikya/Konshisha Federal Constituency Election to be held on the 28th March 2015 and consequently direct the 3rd defendant to reflect plaintiffs name in all its requisite electoral processes and forms, etc.

7. A perpetual injunction restraining the 1st defendant from parading himself/holding himself out in any manner or guise whatsoever as the nominated candidate of the 2nd defendant for the Vandeikya/Konshisha Federal Constituency for the 28th March 2015 Elections fixed by the 3rd defendant.
8. A perpetual injunction restraining the 2nd defendant from associating with, dealing with, or recognizing the 1st defendant as her candidate for the Vandeikya/Konshisha Federal Constituency in respect of the impending 28th March 2015 Elections fixed by 3rd defendant.
9. A perpetual injunction restraining the 3rd defendant from continuing to deal with or otherwise recognize 1st defendant as the nominated candidate of 2nd defendant for the Vandeikya/Konshisha Federal Constituency Election to be held on 28th March 2015.

Upon service on the 1st respondent of the appellants application, the 1st respondents

counsel on 21st September, 2015 filed a notice of preliminary objection to challenge the competence of the action and thereby sought an order of the trial Court striking out or dismissing the action for want of jurisdiction the action being allegedly statute barred. The said objection, which is a point of law, was predicated on the grounds that:-

1. The Plaintiff/Respondent ought to have filed this suit before the State High Court, Makurdi, Benue State and not the Federal High Court.
2. The Plaintiff/Respondent (sic) suit having been filed on the 31st of March, 2015 after the conduct of the election that saw the return of the 2nd defendant was statutorily barred from so doing.
3. The Plaintiff/Respondent’s suit as presently constituted can only be maintained at the State High Court of Benue State and not Federal High Court sitting at Makurdi, Benue State.
4. The Plaintiff/Respondents suit discloses no reasonable cause of action against the 2nd defendant.
5. This action is vexatious, speculative, a gross abuse of Court process and brought in bad faith.

The application of the appellant was also served on the 2nd respondent.

On 21st September, 2015 the 2nd respondent’s counsel equally filed an objection by way of motion on notice for an order setting aside the service of the Originating Summons on the 2nd respondent, on the following grounds:-