All Progressives Congress & Ors Vs Akaliro K. Anderson & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court sitting at Umuahia, delivered on the 20th day of January, 2023 by M. G. Umar, J. (hereafter referred to as ‘the trial Judge’/‘lower court’), dismissing the preliminary objections of the appellants and granting the reliefs sought by the 1st respondent as plaintiff.

Aggrieved, the appellants filed a ten ground notice of appeal on 1st February, 2023.

Facts of the case:

The case of the 1st respondent before the lower court against the appellants and the 2nd and 3rd respondents, by his originating summons filed on 27/7/2022, is that he was the candidate of the 1st appellant for the Umuahia North State Constituency in Abia State, at the direct primary election of the 1st appellant held on 26th May, 2022 and duly monitored by INEC (3rd respondent) wherein he emerged victorious and was issued with INEC Forms, which he filled and returned to the 1st appellant to be forwarded to the 3rd respondent (INEC).

However, to his utmost shock, it was the name of the 2nd respondent, Okwulehie Onyendi, that was forwarded and uploaded to the 3rd respondent’s portal on the 15th day of July, 2023.

Consequently, he filed an originating summons seeking the following declaratory reliefs:

1. A declaration that by virtue of sections 29(1), (3) and 84 of the Electoral Act, 2022, and the 4th respondent’s report on the APC Governorship and State Assembly Primaries for Abia State dated the 31st day of May, 2022, the acceptance and publication of the name of the 3rd respondent by the 4th respondent as the candidate of the 1st respondent for the Umuahia North State Constituency in the 2023 general election on the 21st day of the July, 2023 are unlawful, null and void and of no effect.
2. A declaration that the surreptitious dropping, change and/or replacement of the name of the applicant as the duly nominated candidate of the 1st replacement of the name of the applicant as the duly nominated candidate of the 1st respondent for the Umuahia North State Constituency in the 2023 general election with that of the 3rd respondent and uploading of the name of the 3rd respondent by the 1st respondent on the portal of the 4th respondent on the 15th day of July, 2022 and the publication of the 3rd respondent’s name by the 4th respondent on the 21st day of July, 2022 are unlawful and a contravention of sections 29(1), (3) and 84 of the Electoral Act, 2022.
3. An order directing the 1st and 2nd respondents to forward the name and personal particulars of the Applicant to the 4th respondent forthwith as the 1st respondent’s duly nominated candidate for the Umuahia North State Constituency in the 2023 general election.
4. An order directing the 4th respondent to substitute the name of the 3rd respondent earlier forwarded to it by the 1stand 2nd respondents with the name of the applicant and to also publish the applicant’s name as the duly nominated candidate of the 1st defendant for Umuahia North State Constituency in the 2023 general election forthwith either with or without the 1st and 2nd respondents forwarding the applicant’s name to the 4th respondent.

And for any further order(s) as this honourable court may deem fit to make in the circumstances.

The case of the appellants, as deposed to by Chief Chidi Arajah, the State Secretary of the 1st appellant in their counter-affidavit, however is that the primary election conducted by the 1st appellant for the Umuahia North State Constituency in Abia State was an indirect primary election from which the 2nd respondent emerged as the winner and his name forwarded to the 3rd respondent.

The appellants also filed notices of preliminary objection before the lower court, contending that the lower court lacks the jurisdiction to determine the suit on the grounds that the originating summons was not served personally on the 2nd appellant and that the 1st respondent has no locus standi to institute the suit. Also that the suit is non-justiciable.

The lower court, delivering its judgment, dismissed the preliminary objections of the appellants and proceeded to determine the suit. In considering the main suit, the lower court struck out the counter-affidavit and written address of the appellants, for being filed out of time and without the leave of the court; it then went on to consider the case of the 1st respondent and found same to be meritorious, consequent upon which it entered judgment in favour of the 1st respondent, granting the reliefs sought by him. Aggrieved by this judgment, the appellants filed this appeal on 01/02/2023.

Briefs of argument/issues for determination

The appellant’s brief of arguments, settled by Kelvin C. Iruke, Esq. and filed on 14th February, 2023, distilled three (3) issues for the court’s determination, to wit:

1. Whether the lower court was right to assume jurisdiction to hear and determine the suit of the 1st respondent.
2. If the answer to issue No. 1 above is in the positive, whether the lower court did not breach the right of the appellants to fair hearing in the conduct of the proceedings leading to the judgment in favour of the 1st respondent.
3. Whether the lower court was right in entering judgment in favour of the 1st respondent.

The 1st respondent’s brief of arguments, settled by O. O. Amuzie, Esq. and filed on 20th February 2023, distilled four issues for determination, namely: