Victoria Otanya Odey v. All Progressives Congress (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

AMINA ADAMU AUGIE, JSC (Delivering the leading judgment)

The appellant, who purchased the Expression of Interest Forms, and had been cleared and screened by first respondent to contest the primaries to elect its candidate for the Cross-River State House of Assembly, Yala 1 Constituency, in the general elections, filed an action by way of originating summons at the Federal High Court, wherein she prayed the court to determine five questions:

1. Whether by the combined interpretation of sections 84(5)(c), 84(14) and 82(1) (5) of the Electoral Act, 2022, article of the APC Constitution, 2022; Paragraphs 25(i), 26(b) of the APC Guidelines for the Nomination of Candidates for the 2023 General Elections, the 1st and 2nd defendants, their agents and privies, can validly deny the Plaintiff notice of the rescheduled primaries and access to the Ogoja Local Government Secretariat, Cross River State, venue of the rescheduled primary elections to elect the candidate of the 1st defendant to contest for the State House of Assembly, Yala 1 Constituency, in the 2023 general elections and also deny the plaintiff right to have her agent present in the purported rescheduled primaries?
2. Whether by the combined interpretation of sections 84(5)(c) , 84(14) and 82(1) (5) of the Electoral Act, 2022, Article 20.4(ii)(e) of the APC Constitution, 2022 Paragraphs 25(i), 26(b) of the APC guidelines – – the failure of the 1st and 2nd Defendants, their agents and privies, to notify the plaintiff and 3rd defendant about the rescheduled venue of the primary election for State House of Assembly, Yala 1 Constituency – – has rendered the entire process that produced the 2nd defendant, as a candidate of that purported primary election, wrong, unlawful, invalid and, therefore, null and void?
3. Whether by the combined interpretation of sections 84(5)(c) , 84(14) and 82(1) (5) of the Electoral Act, 2022, Article 20.4(ii)(e) of the APC Constitution, 2022; Paragraphs 25(i), 26(b) of the APC Guidelines – – the 1st and 2nd defendants, their agents and privies, having excluded the Plaintiff from the said primary election, thereby rendering the entire process that produced the 2nd defendant, as a candidate of that purported primary election, wrong, unlawful, invalid and, therefore, null and void, can validly return the 2nd defendant as the winner of that primary election?
4. Whether by the interpretation of section 84(5)(c)(i) of the Electoral Act (as amended) , the holding of the primary election by the 1st defendant to elect the candidate of 1st defendant to contest the Cross River State House of Assembly, Yala 1 Constituency in the 2023 general elections, in the Secretariat of Ogoja Local Government Area of Cross River State, instead of the Secretariat in Okpoma, the headquarters of Yala Local Government Area of Cross River State or at various Ward centers in Yala Local Government is not wrong, unlawful, invalid and, therefore, null and void?
5. Whether by the combined interpretation of section 106 of the (1999) Constitution – – (as amended) , the affidavit filed by the 1st defendant on 3/12/2021 in suit No. FHC/ABJ/CS/976/2021: Peoples Democratic Party (PDP) v. INEC & 25 Ors, the said affidavit, which is still live and pending before the Court of Appeal, Abuja, in appeal No. CA/ABJ/CV/482/2022: House of Assembly of Cross River State, Regina Anyogo & 20 Ors v. PDP & 4 Ors. And the purported Member Registration Form issued by the 1st defendant to the 2nd defendant on 8/6/2021 the 1st defendant can give its ticket, flag or candidacy to the 2nd defendant, who is clearly not a member of the 1st defendant to contest the Cross River State House of Assembly, Yala 1 State Constituency in the 2023 general elections or any other elections for that matter?

“Upon such determination”, she prayed the court for eight reliefs, including:

9. A declaration that by the interpretation of section 84(5)(c)(i) of the Electoral Act (as amended), the holding of the primary election by the 1st defendant to elect the candidate of the 1st defendant to contest the Cross River State House of Assembly, Yala 1 Constituency in the 2023 general elections, in the Secretariat of Ogoja LGA of Cross River State, instead of the Secretariat in Okpoma, the headquarters of Yala Local Government Area of Cross River State or at various Ward centers in Yala Local Government is wrong, unlawful, invalid, and, therefore, null and void.

(12) An order nullifying the purported primary elections – – – held in the Secretariat of Ogoja LGA of Cross River State that purportedly produced the 2nd defendant as the candidate of the 1st defendant to contest the Cross River State House of Assembly Seat, Yala 1 Constituency, in the 2023 general elections.

In a nutshell, the appellant’s case is that the primary election earlier scheduled to hold on 26/5/2022, could not hold due to the late arrival of election materials, and it was rescheduled for the next day 27/5/2022; that on the said 27/5/2002, first respondent held the primary election in Ogoja, outside the Constituency, contrary to the requirement of the Electoral Act, which says primary elections shall be conducted in a location within the geographical space of each Constituency, therefore the said election constitutes an illegality, and is invalid.

Furthermore, that she went to the venue in Ogoja, but was locked out, and the second respondent was returned as winner of the primary election; that the second respondent is not a member of the first respondent, as she and twenty-five other members of the Cross-River State House of Assembly, purportedly decamped to first respondent from PDP in 2021, and in suit No. FHC/ABJ/976/2021 filed by PDP against her and her decamping colleagues, the first respondent denied her membership of the first respondent, and being a non-member of the party, the second respondent cannot rightfully contest its primary elections; and that being the only qualified aspirant for the primary election, she, the appellant, should be declared winner of the primary election.

In addition to their 1st and 2nd defendants counter-affidavit, the first and second respondents filed a notice of preliminary objection at the trial court, wherein they challenged the competency of the Suit on the following grounds:

1. The originating summons is incompetent having not been endorsed as required by the mandatory provision of section 97 of the Sheriffs and Civil Processes Act .
2. The plaintiff does not have the locus standi to institute this suit challenging the conduct and outcome of the primary election held on 27/5/2022 by 1st defendant.
3. The issue of nomination or sponsorship and membership of the 2nd defendant – – is within the domestic affairs of the 1st defendant and not justiciable.
4. The plaintiff did not exhaust the internal dispute remedial/resolution mechanism of the 1st defendant before filing this Suit.
5. The Suit does not disclose any reasonable cause of action.

The first and second respondents’ contention is that the primary election did not hold in Ogoja Local Government Secretariat, as claimed by the appellant, but held at Offoboche Secondary School Okuku within Yala Constituency; that having claimed that the election that produced second respondent is invalid, the appellant cannot in another head of claim pray the court to declare her first respondent’s rightful candidate; and that the question of second respondent’s membership status was sub judice, thus, it cannot be determined by the court.

In paragraph 14 of her further and better affidavit, the appellant averred that she stands by her depositions in the supporting affidavit and restated that:

The Primary Election held at State Secretariat Ogoja Local Government. The 3rd defendant, Independent National Electoral Commission Report evidencing the venue is hereby attached and marked as exhibit A1.

In the said exhibit A1 [INEC’s Report], the third respondent stated as follows:

i. The APC [first respondent] scheduled its State House of Assembly Primary Election for Constituency 1 in Yala LGA.

ii. The scheduled date was originally 27/5/2022 but this date was changed to 26/5/2022. The primary election for the State House of Assembly was finally conducted on 27/5/2022.

iii. Venue was originally Christ the King School (CKS) Okpoma but security concerns forced the Organizing Committee to move the venue to the open field within Ogoja Local Government Secretariat.