Mr. Kenneth Adighibe v. All Progressives Congress & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court sitting at Umuahia, delivered on the 20th day of January 2023 by M. G. Umar, J. (hereafter referred to synonymously as ‘the trial Judge’/‘lower court’), granting the reliefs sought by the 3rd respondent as plaintiff. Aggrieved, the appellant filed a six ground notice of appeal on 1st February, 2023.

Facts of the case:

The case of the 3rd respondent, who was the plaintiff at the lower court, is that he was the candidate of the 1st respondent for the Umuahia Central State Constituency in Abia State, at the direct primary election of the 1st respondent held on 26th May 2022 and duly monitored by INEC, the 4th respondent, wherein he emerged victorious.

He was issued by the 1st appellant with the necessary INEC Forms, which he filled and returned to the 1st respondent to be forwarded to the 4th respondent (INEC). To his utmost shock, it was the name of the appellant that was forwarded and uploaded to the 4th respondent’s portal on the 15th day of July, 2023 and published by the 4th respondent on the 21st day of August, 2023.

Consequently, he filed an originating summons seeking the following declaratory reliefs:

1. A declaration by virtue of sections 29(1), (3) and 84 of the Electoral Act, 2022, and the 4th respondent’s report on the APC Governorship and State Assembly Primaries for Abia State dated the 31st day of May, 2022, the acceptance and publication of the name of the 3rd respondent by the 4th respondent as the candidate of the 1st respondent for the Umuahia Central State Constituency in the 2023 general election on the 21st day of July, 2022 are unlawful, null and void and no effect.
2. A declaration that the surreptitious dropping, change and/or replacement of the name applicant as duly nominated candidate of the 1st respondent for the Umuahia Central State Constituency in the 2023 general election with that of the 3rd respondent and uploading of the name of the 3rd respondent by the 1st respondent on the portal of the 4th respondent on the 15th day July, 2022 and the publication of the 3rd respondent’s name by the 4th respondent on the 21st day July, 2022 are unlawful and a contravention of sections 29(1), (3) and 84 of the Electoral Act, 2022.
3. An order directing the 1st and 2nd respondents to forward the name and personal particulars of the applicant to the 4th respondent forthwith as the 1st respondent’s duly nominated candidate for the Umuahia Central State Constituency in the 2023 general election.
4. An order directing the 4th respondent to substitute the name of the 3rd respondent earlier forwarded to it by the 1st and 2nd respondents with name of the applicant and to also publish the applicant’s name as the duly nominated candidate of the 1st defendant for Umuahia Central State Constituency in the 2023 general election forthwith either with or without the 1st and 2nd respondents forwarding the applicant’s name to the 4th respondent.

And for any further order(s) as this honorable court may deem fit to make in the circumstances.

The case of the appellant, as deposed to by him, however, is that the primary election conducted by the 1st respondent for the Umuahia Central State Constituency in Abia State was an indirect primary election from which he emerged as the winner and his name was forwarded to the 4th respondent.

Upon being served with the originating summons at the lower court, the appellant, the 1st and 2nd respondents filed preliminary objections challenging the competence of the action. The lower court, in its judgment, ruled on the preliminary objections, dismissed the same and proceeded to the substantive suit, entering judgment in favour of the 1st respondent and granting the reliefs sought by him. Aggrieved, the appellant filed the instant appeal to this court on 01/02/2023.

Preliminary objection:

The 1st respondent filed before this court a notice of preliminary objection on 23/2/2023 challenging the competence of this appeal on the following grounds:

This appeal as presently constituted is incompetent as there is no competent records that can in law ground same.

1. The records was not compiled and transmitted in compliance with the mandatory provisions of paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022 (EJPPD).
2. The records did not comply with the provisions of order 8 rule 7(b) of the Court of Appeal Rules, 2021 in that no schedule of fees paid for the notice of appeal was so endorsed on the records as mandatorily required by law.
3. There is no competent appellant’s brief of argument that can ground this appeal.
4. The appellant’s brief of argument filed on 16/2/2023 did not comply with the mandatory provisions of paragraph 11(b) of the Election Judicial Proceedings Practice Directions, 2022.

In his argument on the notice of preliminary objection embodied in the 3rd respondent’s brief of argument, learned 3rd respondent’s counsel distilled a sole issue for determination, to wit:

“Whether the appeal as presently constituted is competent?”