APC v. PDP & Ors. (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA: (Delivering the leading judgment)

The appellant and the 1st respondent are registered political parties in Nigeria. In preparation for the forthcoming 2023 General Elections, they conducted primary elections as required by law to produce candidates they would sponsor for the said elections.

Among the Constituencies where they conducted primary elections is the Yala II State Constituency of Cross River State. The appellant submitted the name of the 4th respondent as its candidate for the said Constituency, while the 1st respondent submitted the name of the 2nd respondent as its candidate for the Constituency.

In obeisance to the prescriptions of the law, the Election Management Body, the Independent National Electoral Commission (INEC), the 3rd respondent herein, upon receipt of the list of candidates published the same in the constituency where the candidates intend to contest election.

Thereafter, the 1st & 2nd respondents, contending that the 3rd respondent did not monitor the appellants primary election at which the 4th respondent emerged as a candidate and therefore the 3rd respondent ought not to have published her name, instituted proceedings before the Federal High Court.

The action was instituted in the Abuja Division of the court on 4th August, 2022 and numbered as suit No. FHC/ ABJ/CS/1321/2022: Peoples Democratic Party & Anor v. Independent National Electoral Commission (INEC) & Ors.

The matter was later transferred to the Calabar Division of the court for adjudication, where it was given the new suit number as suit No. FHC/CA/CS/140/2022.

In the said action which was commenced by originating summons, the 1st & 2nd respondents presented the following questions for determination:

1. Whether going by the community reading of sections 285(14)(c), 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3), 82(1) (5), 83(1) of the Electoral Act, 2022, the 1st defendant has the duty to monitor all the activities of the 2nd defendant to ensure that it is in line with dictates of the
2. Whether going by the community reading of sections 285(14)(c), 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3), 82(1)(5), 83(1) of the Electoral Act, 2022 , the 1st defendant has the duty to reject or refuse to publish (as it did publish on the 22nd July, 2022), the name of the 3rd defendant as the candidate of the 2nd defendant to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 General Elections, when the 1st defendant is fully aware that the 3rd defendant did not emerge the candidate of the 2nd defendant by due process of law?
3. Whether by the combined interpretation of sections 285(14)(c), 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3), 82(1) (5), 83(1) of the Electoral Act, 2022, it is not wrong, illegal and therefore null and void for the 1st defendant being fully aware that the 3rd defendant did not emerge as the candidate of the 2nd defendant by due process of law, yet goes ahead to publish the name of the 3rd defendant as the candidate of the 2nd defendant to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 general elections?

Upon the determination of the said questions, the following reliefs were claimed:

1. A declaration that going by the community reading of sections 285(14)(c) , 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3), 82(1) (5), 83(1) of the Electoral Act, 2022, the 1st defendant has the duty to monitor all the activities of the 2nd defendant to ensure that it is in line with dictates of the law.
2. A declaration that going by the community reading of sections 285(14)(c), 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3) , 82(1) (5) , 83(1) of the defendant has the duty to reject or refuse to publish (as it did publish on the 22nd July, 2022), the name of the 3rd defendant as the Candidate of the 2nd defendant to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 General Elections, when the 1st defendant is fully aware that the 3rd defendant did not emerge the candidate of the 2nd defendant by due process of law.
3. A declaration that by the combined interpretation of sections 285(14)(c), 153(1)(f), 160(1) and third schedule, part 1, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and sections 29(3), 82(1)(5), 83(1) of the Electoral Act, 2022, it is wrong, illegal and therefore null and void for the 1st defendant being fully aware that the 3rd defendant did not emerge as the candidate of the 2nd defendant by due process of law, yet goes ahead to publish the name of the 3rd defendant as the candidate of the 2nd defendant to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 general elections.
4. An order nullifying the publication of the name of the 3rd defendant, by the 1st defendant, done on the 22nd of July 2022, the 3rd defendant having not emerged the candidate of the 2nd defendant by due process of law to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 general elections.
5. An order directing the 1st defendant not to accept, recognize or include the 3rd defendant as the candidate of the 2nd defendant to contest with the plaintiffs for the Cross River State House of Assembly, Yala II Constituency in the 2023 general elections.

The appellant and the 4th respondent filed a joint counter affidavit in defence of the action, and further filed a notice of preliminary objection challenging the competence of the action. The 3rd respondent did not file any processes in respect of the action and also did not attend the hearing at the lower court. The lower court heard the preliminary objection alongside the substantive originating summons, dismissed the preliminary objection and entered judgment for the 1st & 2nd respondents in terms of the reliefs they claimed.

The appellant was dissatisfied with the judgment and it appealed against the same. The 4th respondent was also dissatisfied with the judgment and she equally appealed against the same. The judgment in the 4th respondents appeal, which is appeal No. CA/C/353/2022: Cynthia Nkasi v. Peoples Democratic Party (PDP) & Ors., has been delivered this morning.

The 3rd respondent, being equally dissatisfied with the judgment of the lower court also appealed against the same, and its appeal which was entered in this court as appeal No. CA/C/361/2022: Independent National Electoral Commission (INEC) v. Peoples Democratic Party (PDP) & Ors; was dismissed by this court on 12th December 2022, for want of prosecution since it failed to file its brief of argument.

The record of appeal was compiled and transmitted in the instant appeal and briefs of argument were filed and exchanged between the appellant and the 1st & 2nd respondents.

The 3rd respondent did not file any processes and did not appear at the hearing; while learned senior counsel for the 4th respondent, who did not file any brief of argument, stated that he had nothing to urge in respect of the appeal. In addition to their brief of argument, the 1st & 2nd respondents filed a notice of preliminary objection challenging the competence of the appeal. The scarified judgment of the lower court is at pages 139 – 170 of the records of appeal while the notice of appeal is at pages 174 – 182 of the records of appeal.