Peoples Democratic Party (PDP) v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

This appeal emanated from the decision of the Federal High Court in suit No. FHC/ABJ/CS/1908/2022, delivered on 23rd January, 2023 by Hon. Justice Inyang E. Ekwo, wherein the learned trial court dismissed the case of the plaintiff (now appellant) for lack of credible evidence.

At the lower court, appellant, as plaintiff and political party, had, by originating summons, sought some declarations and orders against the respondents, to invalidate or nullify the nomination, submission and publication of the name of the 3rd respondent as candidate in the 2023, Sokoto State Gubernatorial election.

Appellant contended that there was a failure on the part of the 2nd and 3rd respondents to comply with mandatory provisions of the Constitution, the Electoral Act and the 1st respondent guidelines on nomination of candidates for the election, in that the 2nd respondent did not upload 3rd respondents nomination Form EC13B, as prescribed in paragraphs 2.0 to 2.7 and 7.0 of INEC guidelines, part of which stipulates:

Political parties shall upload completed Forms EC13 A-G (whichever is applicable) in respect of candidates sponsored for elections within the stipulated period in the Timetable and Schedule of Activities for election. Hard copies of nomination documents delivered in person, by courier, or postal service deliveries shall not be accepted or processed by the commission.

The case was heard on the merits, wherein appellant led evidence on the claim, that the 2nd and 3rd respondents were non-compliant with INEC guidelines and, by extension, the Electoral Act; that the non-compliance rendered the nomination and purported submission of the 3rd respondents name as governorship candidate of 2nd respondent, invalid.

In answer to the allegation of non-compliance, the respondents contended that it is not every failure to comply with the guidelines that results in invalidation of the nomination process. Counsel for appellant said that that was a clear admission against interest by the respondent, but the trial court held against appellant and concluded that:

The case of the plaintiff has been demolished by the evidence of the 1st, 2nd and 3rd defendants I find that the plaintiff has failed to discharge the onus of proof in this case and upon being satisfied with reliable and credible evidence, the case of the plaintiff is bound to fail. (Page 363 of the records of appeal).

On Pages 361 362, the trial court had said:

The plaintiff avers that the nomination of the 3rd defendant is invalid as the 2nd defendant has failed to submit the 3rd defendants Form EC9 and EC13 in compliance with the guidelines of the 1st defendant and the 1st defendant cannot publish the name of the 3rd defendant. Submission of Forms by personal couriers is not in compliance with the guidelines and cannot be processed. So, the 2nd defendant does not have a governorship candidate for Sokoto State in the 2023 General Election.

The name of the 3rd defendant published by the 1st defendant on 4th October, 2022, is not in compliance with the guidelines and in breach of the Electoral Act, the 1999 Constitution and its timetable and Schedule of activities for general election. On their part, the 1st defendant has tendered exhibit INEC 1 (a copy of the nomination Form submitted on behalf of 3rd defendant, Form EC13B) and has averred per paragraph 4(K) of its counter-affidavit that the 2nd defendant complied with law in the submission of the 3rd defendant. The 1st defendant has also averred in paragraph 4(q) that the 2nd and 3rd defendants are qualified to contest the 2023 governorship election for Sokoto State.

The 2nd defendant has tendered exhibit PDP 1, and 2 (a certified true copy of the uploaded INEC Form EC13B on the INEC candidates nomination portal, and acknowledgment slip from INEC conforming to the Portal of the 1st defendant). The 3rd defendant has tendered exhibits Sokoto 2 and 3 (Certified True Copies of completed Forms EC9 and EC13B uploaded to the Portal of the 1st defendant). He also tendered exhibit Sokoto 1 (a copy of acknowledgement slip by INEC). I have noted the averments and documentary exhibits of the 1st, 2nd and 3rd defendants.

The position of the law remains that affidavit evidence which is not challenged or controverted, howsoever, is deemed admitted and can be relied upon by a court I find that the Plaintiff has not controverted the case of the 1st, 2nd and 3rd defendants and I so hold.

This means that the plaintiff has failed to establish its case with any concrete documentary evidence that the nomination of the 3rd defendant is invalid as the 3rd defendant failed to submit the 3rd defendants Forms EC9 and EC13B in compliance with the guidelines of the 1st defendant. Rather, the case of the plaintiff has been demolished by the evidence of the 1st, 2nd and 3rd defendants.