Chief I.A. Akpan V. Senator Effiong Bob & 4 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD. J.S.C.

The plaintiffs at the Federal High Court, Abuja (trial court) took out an originating summons against the defendants. In the affidavit in support of the originating summons, the 1st plaintiff, who with the consent of the 2nd plaintiff, deposed to the facts contained in the affidavit in support which furnishes a summary of the facts from their own side. He averred that he is a card-carrying member of the Peoples Democratic Party (PDP) while the 2nd plaintiff is the Akwa Ibom State Chairman of the PDP, 1st plaintiff indicated his Interest to contest the party’s primary election into the Akwa Ibom North East District Senatorial Seat as a candidate in the April 2007 General Elections into the National Assembly. In realization of that ambition, the 1st plaintiff obtained and filled the relevant party’s nomination forms and returned same. He was cleared to contest the said primaries which took place on or about 4th – 6th December, 2006 in compliance with PDP’s Constitution.

1st plaintiff averred further that he scored over 60% of the total votes cast and was duly returned as the winner and the party’s candidate in respect of the April, 2007 General Elections. PDP issued him with a Certificate of Return. PDP subsequently proceeded to forward 1st plaintiff’s name to the 1st defendant. 1st plaintiff was invited by the 1st defendant for verification and screening exercise at the instance of PDP. He was screened by the 1st defendant on 21st February, 2007 and that he was advised by the 1st defendant that his name had been included in the list of candidates for the National Assembly elections in April, 2007 General Elections, representing the PDP in Akwa Ibom North-East Constituency. 1st plaintiff averred severally that he was given all the assurances by the PDP’s Akwa Ibom Chairman and PDP’s National Chairman (Dr.) Ahmadu Ali that he was the unequivocal candidate of the PDP in the National Assembly Elections holding in April, 2007 in respect of Akwa Ibom North-East Constituency.

But to the surprise of the 1st plaintiff, the 1st and 2nd defendants unilaterally removed his name from the list of candidates for the National Assembly elections and in a strange manner replaced It with the name of the 3rd defendant plaintiff averred that the exclusion of his name from the INEC list of candidates for the April, 2007 elections is completely in bad faith and the 1st and 2nd defendants never wrote to him or the PDP to explain why his name was excluded from the list. This, principally, was what compelled the plaintiffs to take out the originating summons for the trial court to determine the following questions:

1. “Whether having regard to the clear provisions of Section 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 the 1st plaintiff is qualified to contest election into the Senate of the Federal Republic of Nigeria.

2.Whether as a member of the Peoples Democratic Party and having contested the primaries of the said Party seeking nomination as the Party’s candidate for the April, 2007 General Elections in respect of Akwa Ibom North East Senatorial District, and having polled over 60% of the total votes cast at the said primaries which led to his being declared as the winner of the said primary election and consequently issued with a Certificate of Return by the Peoples Democratic Party directing the 1st and 2nd defendants to list the 1st plaintiff as its candidate for the National Assembly Elections in respect of Akwa Ibom North East Senatorial District Constituency, the 1st defendant is at liberty not to enforce the directive of the Party to wit: listing him i.e. the 1st plaintiff as the Party’s Senatorial candidate in Akwa Ibom North East for the April, 2007 General Elections, having regard to the relevant provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.

3. Whether in the face of the several representations/correspondences made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the name of the 1st plaintiff be placed on the list of the National Assembly candidates with the 1st defendant as the Peoples Democratic Party’s candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Elections. The 1st defendant is at liberty to decline the enforcement of such directives, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria 1999.
4. Whether in the absence of any positive explanation from the 1st defendant, having regards to the several representations made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the 1st plaintiff’s name be placed on the list of National Assembly candidates, the 1st defendant is at liberty to remove the name of the 1st plaintiff unilaterally after having screened him and verified his credentials, having regards to the relevant provisions of the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
5. Whether the omission, substitution or removal of the name of the 1st plaintiff by the 1st defendant from the list of National Assembly candidates dated 15th March, 2007 to contest election into the Senate of the Federal Republic of Nigeria, particularly as representing Akwa Ibom North East Senatorial District in the April, 2007 General Elections does not constitute a gross violation of the 1st plaintiff’s constitutional right to fair hearing, and by extension his right to contest election into the Senate of the Federal Republic of Nigeria as a Nigerian citizen, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. Whether in the light of the fact that the Peoples Democratic Party had submitted the name of the 1st plaintiff for substitution with the name of the 3rd defendant by several correspondences, the 1st and 2nd defendant can validly decline such substitution, having regard to the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
7. Whether in view of the clear provisions of the Electoral Act, 2006, the 1st and 2nd defendants are in a position to decline to act upon the representation of a political party vis-a-vis its choice of candidate to contest for an office in the April 2007 General Elections, more so when the candidate is not otherwise disqualified”

The plaintiffs prayed the trial court for the following reliefs:

1.”A declaration that the omission of the name of the 1st plaintiff by the 1st and 2nd defendants in the list of candidates for National Assembly General Election dated 15th March, 2007 particularly as it affects Akwa Ibom North East Senatorial District constitutes a gross violation of the 1st plaintiff’s constitutional rights.

2. A declaration that the refusal of the 1st defendant to comply with the several directives issued by the 1st plaintiff’s political party i.e. Peoples Democratic Party to the effect that the 1st plaintiff’s name be listed as its candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Election constitutes a wrongful and unlawful removal/substitution or exchange of a validly nominated candidate i.e. the 1st plaintiff.
3. A declaration that the inclusion of the 3rd defendant’s as the Peoples Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the fourth-coming April, 2007 General Election is wrongful as it is against the position, wishes and aspirations of the Peoples Democratic Party.
4. An order setting aside the inclusion of the name of the 3rd defendant in the list of the National Assembly candidates for the April 2007 General Election for Akwa Ibom North East Senatorial District.
5. An order of mandatory injunction directing the 1st and 2nd defendants to forth with place the name of the 1st plaintiff on the list of candidates for the April, 2007 National Assembly General Elections as the candidate representing the People Democratic Party in Akwa Ibom North East Senatorial District in the said election.
6. An order of perpetual injunction restraining the 1st and 2nd defendants from further removing the candidature of the 1st plaintiff as the candidate representing Akwa Ibom North East Senatorial District on the platform of the People Democratic Party in the said election.
7. An order of perpetual injunction restraining the 1st and 2nd defendants from placing the name of the 3rd defendant on the ballot for the forth coming election Into the National Assembly as the candidate representing Akwa Ibom North East Constituency on the plat form of the Peoples Democratic Party in the said election.”.

After the parties filed all the necessary processes such as affidavits in support and counter-affidavits, written addresses etc, learned counsel for the respective parties adopted their written addresses before the trial court on the 2nd day of April, 2007. The suit was adjourned to the 18th of April, 2007 for judgment and judgment was indeed delivered promptly on that date by Nyako, J. In that judgment, the learned trial judge found in favour of the 1st plaintiff, who is the appellant herein. She granted declarations as per reliefs 1, 2 and 3 and made orders as per reliefs 4, 5, 6 and 7, directing, among other things, that the 1st defendant to include the name of the 1st plaintiff as the candidate of the party in place of that of the 3rd defendant.

Dissatisfied with the judgment of the trial court, the 3rd defendant, as appellant, appealed to the Court of Appeal holden at the Abuja Division (court below). In its judgment which it delivered on the 30th day of March, 2009 the court below set aside the trial court’s judgment and declared the 3rd defendant (who is the 1st respondent herein) as the candidate of the party.

The 1st plaintiff, who is now appellant in this appeal was aggrieved with the Judgment of the court below and now appealed to this court on nine grounds of appeal,

In this court parties filed and exchanged briefs of argument. Learned counsel for the appellant S. E. Umoh. formulated the following issues for determination by this court:

1. “Whether it was proper for the Court€¢ of Appeal to have countenanced and considered “arguments” in support of issue NO.2 as formulated by the main appellant when the said arguments had been struck out along with issue NO.3 same having been argued together.

(distillable from ground 1).

2. Having resolved issue No.1 in the main appeal before the Court of Appeal in favour of the 1st respondent and having struck out all arguments in support of issues Nos. 2 & 3, was the Court of Appeal right in not dismissing the main appellant’s appeal. (distillable from grounds 2 & 3)
3. Was it proper for the Court of Appeal to have entertained the 5th respondent’s/cross-appellant’s issue No.1 when:

[a] it did not arise from the decision of the trial court and

[b] the decision of the trial court that none of the parties raised the issue of cogent and verifiable reason was not appealed against and