Mr. Dan Abia V. Hon. Eseme Eyiboh & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 11th February, 2011 the 1st Respondent took out against the Independent National Electoral Commission (INEC), Peoples’ Democratic Party (PDP) and Mr. Dan Abia (the present appellant) an originating motion wherein he claimed the following reliefs –

1. AN ORDER setting aside the primaries purportedly held at Uyo Township Stadium on 28th and 29th January, 2011 at which Mr. Don Abia was purportedly elected as the candidate of the Peoples’ Democratic Party for election to the office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal constituency for the 2011 general elections.
2. AN ORDER setting aside the purported sponsorship of Mr. Don Abia as the candidate of the Peoples’ Democratic Party for election to the office as member of House of Representatives representing Eket/Ibeno/Esit/Onno Federal Constituency for the 2011 general elections.
3. AN ORDER of injunction restraining the 1st Defendant (i.e INEC) by itself, agents, servants, officers, privies and any person acting through or under the from accepting or otherwise acting on the nomination or sponsorship of Mr. Don Abia by the 2nd Defendant (i.e. the PDP) to the office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency under the flag of the 2nd Defendant (PDP).
4. AN ORDER directing the 1st Respondent to insert the name of the Applicant (i.e. Hon. Eseme Eyiboh) as the PDP candidate for election to office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency.
5. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The application, treated as an originating summons by the parties, was before the Federal High Court, Abuja presided by his Lordship, A. Abdu Kafarati, J. It was supported by several affidavits. The affidavit of Hon Eseme Eyibo (the applicant), deposed on 11th February, 2011, has 33 paragraphs. The affidavit is at pages 6 – 9 of the Record. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22 and 30 of the said affidavit of Hon. Eseme Eyiboh (1st Respondent in the appeal) are herein below reproduced as follows. That is:-

4. I am currently a member of the House of Representatives elected under the platform of the PDP and representing Eket/Ibeno/Esit/Onno Federal Constituency.
5. I contested with two other persons for sponsorship as candidates of the PDP to the House of Representatives to represent the Eket/Ibeno/Esit/Onna Federal Constituency in the 2007 general elections scheduled for April.
6. Eket/Ibeno/Esit/Onna Federal Constituency comprise the following Local Government Areas:

a. Eket Local Government Area,

b. Ibeno Local Government Area,

c. Esit Eket Local Government Area, and

d. Onna Local Government Area.

The headquarters of the Constituency is Eket.

8. Under our party constitution and guidelines, the primaries MUST hold at the headquarters of the constituency. Copies of the Party Constitution and Electoral Guidelines are attached and respectively marked as Exhibit ‘A’ and Exhibit ‘B’.
9. Hence also the designation of Eket as the venue for the primaries.
10. Primaries were initially scheduled for 7th January, 2011 at the Eket Township stadium but were cancelled due to violence and irregularities. The violence claimed the lives of two delegates as attested to in the Thisday newspaper of Monday, 10th January, 2011, Vol. 15, No 5740.
11. None of the contestants was elected by the delegates in the attempted primaries of 7th January, 2011 as some was annulled consequent to the violence and irregularities.
12. Our party and all three contestants agreed to new primaries to be scheduled later.
13. By the guidelines of the 1st Respondent, the primaries, including re-run, ought to hold on or before 15th January, 2011 and monitored/observed by the 1st Respondent. The 1st Respondent’s instructions to that effect is annexed hereto and marked as Exhibit ‘C’.
14. On account of the said failed earlier attempt to hold primaries regarding the Eket Federal Constituency, the 2nd Respondent eventually fixed Friday, 28th January, 2011 for the primaries at the Eket Township Stadium. A copy of the letter dated 27th January, 2011 (12 days after the deadline fixed by INEC for primaries) written by the National Organizing Secretary of the PDP constituting the Primaries Election Panel is attached and marked as Exhibit ‘D’.

Eket/Ibeno/Esit/Onno Federal Constituency at Akwa Ibom State is listed as No 8 for the primaries.

15. As at this date, the 2nd Respondent was already out of the time required by the 1st Respondent’s guidelines for all political parties to hold primaries. The deadline fixed for all primaries to hold was 15th January, 2011.
16. On the date fixed for the primaries being 28th January, 2011, I was at the Eket Township Stadium along with most of the other delegates.
17. We waited all day and all through to the following day, 29th January, 2011 for the panel conducting the primaries to come.
18. The panel appointed by the 2nd Respondent from Abuja never came and no primaries held at the Eket Township stadium or anywhere in Eket/Ibeno/Esit/Onna Federal Constituency.
19. I was surprised to hear on Nigerian Television Authority and other news media that Eket/Ibeno/Esit/Onno Federal Constituency is one of the constituencies in which the 2nd Respondent is sponsoring a candidate, and that this was as a result of primaries that held of Uyo Township stadium. The 1st Respondent has published a list which contains the name of the 3rd Respondent as the flog bearer.
20. Uyo is not the headquarters of Eket/Ibeno/Esit/Onno Federal Constituency.
21. Uyo is not even within Eket/Ibeno/Esit/Onno Federal Constituency.
22. I am confident that if the delegates who waited with me at Eket Township stadium had participated in the primaries, I would have won by an overwhelming majority.

This affidavit is quite revealing. The combined effect of paragraphs 15, 17 and 18 of the said affidavit is that

i. as at 28th and 29th January, 2011 the PDP “was already out of the time required by the (INEC) guidelines for all political parties to hold primaries. The deadline fixed for all primaries to hold was 15th January , 2011”. Nobody said that INEC granted PDP an extension of time after the deadline.

ii. Exhibit ‘C’ is INEC letter to the PDP warning them of the futility of conducting primary elections after the elapse of the deadline on 15th January, 2011 and that the deadline “has not been extended by the commission.”

iii. The PDP panel appointed to conduct the primary election in the Eket/Ibeno/Esit/Onna Federal Constituency “never came and no primaries held at the Eket Township stadium or anywhere – in the Federal Constituency.”

iv. Hon. Eseme Eyiboh (Applicant/1st Respondent) never said he was nominated or elected as the PDP candidate at Eket either on 28th or 29th day of January, 2011.