Peter Oboh Egbodo v. All Progressives Congress & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Makurdi Division, delivered on 23rd January, 2023 setting aside the judgment of the Federal High Court, Makurdi Division, delivered on 22nd November, 2022 on the ground that the appellant’s suit before the trial court was statute barred.

The appellant’s case is that he is a card carrying member of the 1st respondent, All Progressives Congress (APC). He was interested in contesting the House of Representatives seat for Obi/Oju Federal Constituency of Benue State in the upcoming general elections.

He purchased the Expression of Interest and Nomination Forms and fulfilled all other necessary requirements. He was duly screened and cleared to participate in the primary elections slated for 28th May, 2022. It was his case that the party adopted the direct mode of conducting the election.

That the election duly took place in all the 23 wards of Obi/Oju Federal Constituency and was duly monitored by the 3rd respondent. That the results were announced on the following day, 29th May 2022, andhe was declared the winner, having scored 11,781 votes while the 2nd respondent scored 652 votes. That the said results were handed over to the Electoral Committee sent by the 1st respondent’s National Headquarters.

However, while waiting to be issued with the appropriate INEC form, he got wind that there was a plot to remove his name as the winner and substitute it with the 2nd respondent’s name. He made a written protest to the 1st respondent’s appeal committee.

The letter was dated 31st May, 2022 and received by the 1st respondent on 3rd June 2022. He received no response. On 17th June, 2022, the 2nd respondent’s name was submitted to INEC, which published it on 24th June 2022. This propelled the appellant to file an originating summons on 30th June, 2022 in which he posed the following questions for determination:

1. Whether having regard to the combined provisions of sections 221 , 222 paragraph 15 of the third schedule, as well as other relevant provisions to the Constitution of the Federal Republic of Nigeria, 1999 (as amended); section 84 of Electoral Act, 2022; Articles 7 (ix), and 20.3, 20.4 of the Constitution of the All Progressives Congress(APC) and paragraph 16 (I) (1) of the Guidelines for the Nomination of Candidates for the 2023 General Elections of the All Progressives Congress (APC), the 2nd defendant can or has the right or latitude to nominate or sponsor any candidate, or forward to the 3rd defendant, the name of any candidate for election to the National Assembly (House of Representatives, for Obi/OJu Federal Constituency, Benue State) other than as mandatorily provided by the combined effect of the afore-stated provisions of the 1999 Constitution, the Electoral Act, the Constitution and Guidelines of the 2nd defendant.
2. Whether having regard to the combined provisions of section 221, 222 paragraph 15 of the third schedule, as well as other relevant provisions to the Constitution of the Federal Republic of Nigeria, 1999 (as amended); section 84 of Electoral Act, 2022; Articles 7 (ix), and 20.3, 20.4 of the Constitution of the All Progressives Congress (APC), and paragraph 16 (I) (1) of the Guidelines for the Nomination of Candidates for the 2023 General Elections of the All Progressives Congress (APC), the 2nd defendant can or has the power to substitute or change the name of the plaintiff who in conformity with the afore-stated provisions of the relevant laws and guidelines secured the highest number of votes at the primary election conducted by the 2nd defendant on 28th day of May, 2022, to nominate a candidate for the office of House of Representatives, Obi/Oju Federal Constituency of Benue State, with that of the 1st defendant, who did not score the highest number of votes at the said primary election.

In the event of an affirmative response to the questions, he sought the following reliefs:

1. A declaration that the 2nd defendant lacks the power and the vires to nominate, sponsor or forward to the 3rd defendant, the name of any candidate for election on the platform of the 2nd defendant to the office of member representing Obi/Oju Federal Constituency, Benue State, at the 2023 general elections, other than as mandatorily provided by the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022, as well as the Constitution and Guidelines of the defendant.
2. A declaration that the 2nd defendant does not possess the vires power or authority to forward tothe 3rd defendant any other name particularly, that of the 1st defendant than the name of the plaintiff, who secured the highest number of votes in the primary election organized by the defendant, on the 28th day of May, 2022 to contest on the platform of the 2nd defendant for the office of member representing Obi/Oju Federal Constituency, Benue State, at the general elections scheduled for 2023.
3. A declaration that the plaintiff, having secured the highest number of votes at the primary election conducted by the 2nd defendant on the 28th day of May, 2022 to nominate a candidate to represent the 2nd defendant for the office of member representing Obi/Oju Federal Constituency, Benue, at the 2023 general elections, remains the candidate of the defendant for tine Obi/Oju Federal Constituency, Benue State at the general elections scheduled for 2019.
4. A declaration that the submission of the name of the 1st defendant by the 2nd defendant to the 3rd defendant on the 17th day of June, 2022, to contest election on the platform of the 2nd defendant to the office of member representing Obi/Oju Federal Constituency, Benue State, at the 2023 general elections is unconstitutional, illegal, ultra vires, oppressive, undemocratic, arbitrary, null and void and of no effect.
5. A declaration that the election of the plaintiff as the candidate who secured the highest number of votes at the primary election held by the 2nd defendant on the 28th day of May, 2022, to nominate a candidate that would represent the 2nd defendant for the office of member representing Obi/Oju Federal Constituency, Benue State, at the 2023 general subsists.
6. An order setting aside the nomination and/or submission of the name of the 1st defendant by the 2nd defendant to the 3rd defendant on the 17th day of June, 2022 as the candidate to represent the 2nd defendant for the office of member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Election.
7. An order setting aside the publication of the name of the 1st defendant by the 3rd defendant on the 24th day of June, 2022, as the candidate to represent the 2nd defendant for the office of member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.
8. An order directing and/or compelling the 2nd defendant to forward the plaintiff’s name to the defendant as its candidate for the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.
9. An order directing or compelling the 3rd defendant (INEC) to accept, recognise or publish the name of the plaintiff as the candidate of the 2nd defendant for the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.
10. An order of perpetual injunction restraining:

i. The 2nd defendant whether by itself, National Chairman, Officers, agents, privies, or through any person or persons, howsoever, from treating presenting or holding out to the 3rd defendant in particular or to any person at all, the 1st defendant as the candidate for the office of the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.

ii. The 3rd defendant whether by itself, National Chairman, Officer, agents privies or through any person or persons howsoever, from treating, or further treating, accepting or further accepting, publishing or further publishing the name of the 1st defendant as the candidate representing the 2nd defendant for the office of the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State at the 2023 General Elections.

iii. The 2nd defendant, whether by itself, National Chairman, Officers, agents, privies, or through any person or persons howsoever, from excluding or further excluding, withholding or further withholding the name of the plaintiff as the candidate representing the 2nd defendant for the office of the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.

iv. The 1st defendant, whether by himself or through his officers, agents, privies or any person or persons howsoever, from parading or further parading, presenting or further presenting, holding himself out, or further holding himself out as the candidate representing the 2nd defendant for the office of the House of Representatives, National Assembly for Member representing Obi/Oju Federal Constituency, Benue State, at the 2023 General Elections.

11. For such further order or other orders as this honourable court may deem fit to make in the circumstances of this case.

The originating summons was supported by a 38- paragraph affidavit with various exhibits attached and a written address. Although the paragraphs are numbered up to 30, after paragraph 30 on page 12 of the record, the remaining 8 paragraphs were wrongly numbered 23-30 on page 13. Those paragraphs should have been numbered 31-38. The 1st and 2nd respondents filed counter affidavits, written addresses in opposition as well as preliminary objections to the competence of the suit, to which the appellant filed further affidavits and counter-affidavits to the preliminary objections.

The grounds for the preliminary objections were that the appellant lacked the locus standi to institute the action because he had been disqualified from the primary election by the 1st respondent’s screening committee and thus did not qualify as an aspirant within the meaning of section 84(14) of the Electoral Act, 2022. The second ground was that the cause of action arose on 29th May, 2022 when the election resultswere announced and that the filing of the suit on 30th June, 2022 was well outside the 14 days prescribed in section 285(9) of the 1999 Constitution, as altered, within which to file a pre-election matter.