Osoh v. APC & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment): By an Originating Summons filed on 7/6/2022, the appellant herein sought the determination of the following questions:

1. Whether the special congress for primary election conducted by the 1st Defendant at Omoku Town on the 28th day of May 2022 for Ogba/Egbema/Ndoni State Assembly Constituency 2 outside Ogba/Egbema/Ndoni Constituency 2 (ONELGA Constituency 2) that produced the 3rd Defendant as the winner instead of that of Okwuzi Town, the designated centre or any other centre within Ogba/Egbema/Ndoni State Assembly Constituency 2 contrary to Section 84 (5) (c) (i) & (ii) of the Electoral Act, 2022 and Article 20.4 (ii) (e) & (iii) of 1st Defendant’s Constitution is valid?

2. Whether the special congress for primary election conducted by the 1st Defendant at Omoku Town on the 28th day of May, 2022 for Ogba/Egbema/Ndoni State Assembly Constituency 2 that produced the 3rd Defendant as the winner instead of that of the 26th day of May, 2022 specified in the 1st Defendant’s revised timetable for 2023 primary elections made pursuant to the Electoral Act, 2022 is valid?

In the event that the questions were resolved in his favour, he sought the following reliefs:

1. A DECLARATION that the purported primary election conducted by the 1st defendant at Omoku Town on the 28th day of May, 2022 outside Ogba/Egbema/Ndoni Constituency 2 (ONELGA Constituency 2) for the election of its State House of Assembly candidate for Ogba Egbema/Ndoni Constituency 2 (ONELGA Constituency 2) which produced the 3rd Defendant as the winner is invalid, null and void.
2. AN ORDER of this Honourable Court restraining the 1st Defendant from forwarding the name of the 3rd Defendant or any other person except the Ogba/Egbema/Ndoni State House of Assembly Constituency 2 in the 2023 general elections.
3. AN ORDER of this Honourable Court restraining the 2nd Defendant from recognizing the 3rd Defendant or any other person except the Plaintiff as the 1st Defendant’s candidate for Ogba Egbema/Ndoni State House of Assembly Constituency 2 in the 2023 general elections.
4. AN ORDER of this Honourable Court restraining the 3rd Defendant from parading himself as the 1st Defendant’s candidate for Ogba/Egbema/Ndoni State House of Assembly Constituency 2 in the 2023 general elections.
5. AN ORDER of this Honourable Court directing the 1st Defendant to declare the plaintiff as the valid winner of the Ogba/Egbema/Ndoni State House of Assembly Constituency 2 primary election of 1st Defendant for the 2023 general elections held at Okwuzi Town in Ogba/Egbema/Ndoni State House of Assembly Constituency 2 on the 26th day of May, 2022.
6. AN ORDER of this Honourable Court compelling the 1st Defendant to forward the name of the Plaintiff to the 2nd Defendant as the 1st Defendant’s candidate for Ogba/Egbema/Ndoni State House of Assembly Constituency 2 in the 2023 general elections.
7. Any other order(s) that the Honourable Court deems fit to make in the circumstances.

In support of the Summons, the appellant filed a 21-paragraph affidavit with Exhibits marked A – K attached thereto. He also filed a written address in support.

The 1st and 3rd respondents filed counter affidavits in opposition with exhibits attached and written addresses, to which the appellant filed further affidavits. The further affidavit to the 1st respondent’s counter affidavit was filed on 13/7/2022 while the further affidavit in reaction to the 3rd respondent’s counter affidavit was filed on 25/7/2022. The 2nd respondent opted to remain neutral and did not file any process.

At the hearing of the suit on 19th September 2022, learned counsel for the plaintiff (now appellant) applied to withdraw the aforesaid further affidavits. They were accordingly struck out. The plaintiff moved his Originating Summons and adopted his written address in urging the Court to grant same. The 1st and 3rd respondents equally relied on their respective counter-affidavits and written addresses in urging the Court to dismiss the suit.

​In a considered judgment delivered on 5th October 2022, the plaintiff’s suit was dismissed on the ground that he was not an aspirant in the primary election conducted by the 1st defendant and that the averments in his supporting affidavit contending that the election was conducted at Omuku Town outside the Ogba/Egbema/Ndoni State Assembly Constituency 2 in breach of Section 84(5) (c) (i) and (ii) of the Electoral Act, 2022 and Article 20.4 (ii) (e) and (iii) of 1st respondent’s constitution, amounted to hearsay, as he failed to state the source of his information.

He was aggrieved by the decision and appealed to the lower Court. He was unsuccessful, hence the final appeal to this Court vide his notice of appeal filed on 8th December 2022 containing 6 grounds of appeal.

At the hearing of the appeal on 23rd January, 2023, V.N. Ihua-Maduenyi Esq. adopted and relied on the appellant’s brief filed on 16/12/2022 in urging the Court to allow the appeal. Williams-Wobodo Esq. and Chief E.N. Ebete adopted and relied on their respective briefs for the 1st and 3rd respondents filed on 16/12/2022 and 5/01/2023 in urging the Court to dismiss the appeal. The 2nd respondent, though duly notified of the day’s proceedings was absent and did not file any process in the appeal.

​Having examined the issues formulated by the parties, I shall adopt the 2 issues formulated by the appellant in the resolution of the appeal. I shall however reformulate issue 1 to read:

1. Whether the lower Court was right when it held that the Appellant lacked the locus standi to challenge the primary election conducted by the 1st respondent on 28th May 2022, at which the 3rd respondent emerged winner?

(Grounds 1, 2 and 3).

2. Whether the Court below was not wrong when it held that paragraph 15 of the Appellant’s Affidavit in support of the Originating Summons which was deemed admitted by non-denial by the Respondents was devoid of probative value? (Ground 4 and 5).
   Both issues will be taken together.

​Before delving into the merits of the appeal, I deem it necessary to state the facts that gave rise to the suit at the trial Court.

The appellant’s case at the trial Court was as follows: That he participated in the 1st respondent’s primaries for Ogba/Egbema/Ndoni State Assembly Constituency 2 which was held at the designated centre, Okwuzi Town within Ogba/Egbema/Ndoni Constituency 2. That accreditation and voting took place. However, the sorting of ballots and counting of votes was aborted suddenly. The Chairman of the Electoral Committee and his team refused to conclude the process despite protests from the aspirants and delegates.