Chief Ikechi Emenike Vs Peoples Democratic Party & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C

This is an appeal against the judgment of the Court of Appeal, Abuja Division (“the court below” for short) delivered on 2nd November, 2011 wherein it dismissed the appellant’s appeal against the judgment of the Federal High Court (the trial court) delivered by Kolawole, J. on 28th February, 2011.

The appellant as plaintiff at the trial court filed his Originating Summons on 28/01/2011 against the respondents as defendants thereat. He set out five (5) questions or issues for determination which I deliberately reproduce for ease of reference below. They read as follows:-

“(1) WHETHER having regard to Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) it is unlawful for the 1st defendant to refuse to submit to the 3rd defendant the name of the plaintiff who was screened cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held by the Abia State Congress of People’s Democratic Party on 10th January, 2011, to elect the Abia State Gubernatorial candidate of the party for the 2011 general election, which primary was conducted by the State Executive Committee of the Party recognised by the INEC and confirmed upon prior enquiry from its official records.

(2) WHETHER having regard to the combined effect of Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87 (1), (4) and (6) of the Electoral Act, 2010 which, among the other things guarantee, recognise and prescribe the mode of conducting party primaries only on democratic principles or basis, and which enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of the candidate who emerged winner at State Congress of the party, the 1st and 2nd defendants have power to disqualify or reject plaintiff candidature which was the choice of the delegates at the State Congress, and adopt instead by arbitrary fiat, the 4th defendant as the candidate of the 1st defendant for the office of Governor of Abia State in the 2011 General Election.

(3) WHETHER having regard to Section 87(6) of the Electoral Act, 2010 (as amended) the 1st defendant is not bound to submit to the 3rd defendant the name of 1st plaintiff as the 1st defendant’s Gubernatorial candidate for Abia State in the 2011 general election, being the only aspirant of the 1st defendant who Presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of 1st defendant held on 10th January, 2011.

(4) WHETHER in view of Section 33 and 87(6) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the Plaintiff’s candidature can be rejected, disregarded, revoked, reversed, annulled, re-assigned to, or be substituted with 4th defendant, or any other person when plaintiff being still alive, has not withdrawn his candidature to contest on the platform of the 1st defendant at the general election.

(5) If question 4 is answered in the NEGATIVE, WHETHER and having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiff, in the eye of the law, is the candidate of the 1st defendant, entitled to all the benefits of his candidature as flag bearer of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the office of Governor of Abia State at the 2011 general election, in the event that 1st, 2nd and 3rd defendants conspire, fail, refuse or neglect to take all necessary steps required under the Electoral Act, 2010 (as amended) to ensure that plaintiff’s name is duly submitted, published before the date of the election and placed on the ballot for use in the conduct of the Abia State Gubernatorial election in 2011.”

Based on the answers to the questions posed, the appellant as plaintiff at the trial court prayed for seven (7) fairly repetitive reliefs and three (3) injunctive remedies. It is also apt to set them out below for a proper appreciation of the real issues in contention in this appeal. They read as follows:-

“(1) A DECLARATION that by virtue Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) the 1st defendant is bound to submit to 3rd defendant the name of plaintiff who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the Primary election or congress of the Abia State chapter of the Peoples Democratic Party (PDP) held on 10th January, 2011, to elect the Abia State Gubernatorial candidate of the party in the 2011 general elections which primary was conducted by the State Executive Committee of the party recognised by the INEC and confirmed upon prior enquiry from its official records.

(2) A DECLARATION that by the combined effect of Sections 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87(1), (4) and (6) of the Electoral Act, 2010 which, among other things guarantee, recognise and prescribe the mode of conducting party primaries only on democratic principles or basis, and enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of Candidate who emerged winner at State Congress of the party, the 1st and 2nd defendants have NO Power to disqualify or reject plaintiff being the choice of the delegates at the Abia State Congress.

(3) A DECLARATION that the 1st and 2nd defendants cannot by arbitrary fiat or through any illegal method adopt the 4th defendant or any other person other than the plaintiff as the candidate of the 1st defendant for the gubernatorial election in Abia State in the 2011 General Elections.

(4) A DECLARATION that by virtue of Section 87(6) of the Electoral Act, 2010 (as amended) the 1st defendant is duly bound to submit to the 3rd defendant the name of plaintiff as the 1st defendant’s Gubernatorial candidate for Abia State in the 2011 general election, being the only aspirant of the 1st defendant who presented himself for primary election and was confirmed by the accredited delegates with overwhelming majority votes at the State Congress of 1st defendant held on 10th January, 2011 organised by the Abia State Executive Committee of the 1st defendant.

(5) A DECLARATION that in view of Sections 33 and 87(6) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Abia State Party Congress held on 10th January, 2011, the plaintiff’s candidature CANNOT be rejected, disregarded, revoked, reversed, annulled, re-assigned to, or be substituted with 4th defendant or any other person, when plaintiff is still alive, and has not withdrawn his candidature to contest on the platform of the 1st defendant in the general election.