Cynthia Nkasi v. Peoples Democratic Party (PDP)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The 1st and 2nd respondents were the plaintiffs in an action in suit No. FHC/ABJ/CS/1321/2022: Peoples Democratic Party (PDP) & Anor. v. Independent National Electoral Commission (INEC) &Ors.

The 2nd respondent is the candidate sponsored by the Peoples Democratic Party (PDP), the 1st respondent herein, for the forthcoming General Elections for the Yala II Constituency of the Cross River State House of Assembly.

The appellant herein was the 3rd defendant at the lower court. She is the candidate sponsored by the All Progressives Congress (APC), 2nd defendant at the lower court and 4th respondent in this appeal for the election in respect of the said Yala II State Constituency of the Cross River Sate House of Assembly.

In discharge of its duties under section 29 (3) of the Electoral Act, 2022, the Independent National Electoral Commission (INEC), the 3rd respondent herein and 1st defendant at the lower court, published the personal particulars of the candidates whose names were submitted by their respective political parties, including the name of the appellant.

This seemed to set the tone towards a contested election that would involve, inter alia, the appellant, 2nd respondent and their respective political parties, APC and PDP. The 1st and 2nd respondents did not see their way clear in the viability of the candidacy of the appellant and why her particulars were published by INEC; based on the contention that she did not emerge as candidate from a valid primary election that was monitored by INEC as required by the 1999 Constitution, as amended and the Electoral Act.

They consequently commenced the action already referred to by originating summons. The matter which was filed at the Federal High Court, Abuja Division, was later heard at the Calabar Division of the court as suit No. FHC/CA/CS/140/2022.The following questions were presented for determination in the originating summons:

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 tomonitor all the activities of the 2nd defendant to ensure that it is [in] line with dictates of the law?
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 awarethat 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 Electoral Act, 2022, the 1st defendant has the duty to reject or refuseto 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 3rd respondent did not file any processes at the lower court and also did not appear at the hearing of action at the lower court. The appellant and the 4th respondent, as the 2nd and 3rd defendants at the lower court, filed joint processes in defence of the action, which processes included a notice of preliminary objection. The lower court heard the preliminary objection alongside the substantive originating summons.

In its judgment which was delivered on 3rd November, 2022, the lower court resolved the issues raised in the preliminary objection against the appellant and the 4th respondent. It then proceeded to enter judgment in favour of the 1st and 2nd respondents in terms of the reliefs claimed in the originating summons.

The appellant, dissatisfied with the decision of the lower court, appealed against the same by notice of appeal filed on 9th November, 2022. Incidentally, the 4th respondent herein, was also dissatisfied with the decision of the lower court and it filed a separate appeal, which was entered in this court and heard as appeal No. CA/C/358/2022: All Progressives Congress (APC) v. Peoples Democratic Party (PDP) & Ors.

The necessity to point out the existence of this other appeal at this outset, will become apparent in the course of this judgment. The judgment of the lower court is at pages 139 – 170 of the records, while the notice of appeal is at pages 174 – 181 of the records of appeal.

Upon the compilation and transmission of the records of appeal, briefs of argument were filed and exchanged between the appellant and the 1st and 2nd respondents. The 1st and 2nd respondents filed a preliminary objection challenging the competence of the appeal; which preliminary objection was argued in their brief of argument. The 3rd and 4th respondents did not file anyprocesses in respect of the appeal. The 3rd respondent was not represented at the hearing of the appeal, when learned counsel for the appellant and the 1st and 2nd respondents urged the court to uphold their respective submissions in the determination of the appeal. The learned counsel for the 4th respondent informed the court at the hearing that he had nothing to urge in respect of the appeal, since he did not file any respondents brief.The processes on which the appeal was argued are:

1. Appellants brief of argument filed on 21st November, 2022.
2. 1st and 2nd respondents notice of preliminary objection filed on 25th November, 2022.
3. 1st and 2nd respondents brief of argument filed on 25th November, 2022.
4. Appellants reply brief filed on 29th November, 2022.
5. 1st and 2nd respondents’ reply on points of law to the appellants reply to the preliminary objection filed on 1st December, 2022.

I will kickstart the consideration and resolution of this matter with the 1st & 2nd respondents preliminary objection, which they argued in their brief of argument.