Chief Ufikairo Monday Efet V. Independent National Electoral Commission & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA, JCA

This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:- FHC/ABJ/CS/287/07 – CHIEF UFIKAIRO MONDAY EFET VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (2) PEOPLES DEMOCRATIC PARTY (3) HON. CHARLES MBONG, delivered on the 31st day of October 2007 wherein the Court dismissed the Plaintiffs (now Appellant’s) claim for failure to commence the suit timeously.

Briefly, the facts of the case are that the Appellant and the 3rd Respondent contested the primaries of the Peoples Democratic Party (PDP) i.e. the 2nd Respondent for the Ikot Abasi/Eastern Obolo State Constituency in the Akwa Ibom State House of Assembly.

Both the Appellant and the 3rd Respondent claimed that they won the December 2006 primary election conducted. The Appellant claimed that his name was submitted to the Independent National Electoral Commission (INEC) i.e. 1st Respondent but was later surreptitiously substituted with the name of the 3rd Respondent.

The Appellant therefore filed this suit at the lower Court to challenge the substitution on the ground that it was not in compliance with Section 34(1) & (2) of the Electoral Act 2006.

The Learned trial Judge dismissed the Appellant’s suit on the ground that the suit was filed after the Election had been conducted and results declared. He also held that the case had become academic.

Dissatisfied with the said Judgment, the Appellant appealed to this Court with a Notice of Appeal containing three grounds of appeal.

The Learned Counsel for the Appellant formulated two issues for determination as follows:-

“(1) Whether the Appellant’s right of action pursuant to Section 34 (1) and (2) of the Electoral Act 2006 can be extinguished without the express limitation by the constitution or statute or become academic when the subject matter (the election) was still subsisting.

(2) Whether the finding of the fact of the Learned trial Judge to the effect that the suit was filed “10 days after the election had been conducted and the results declared” was not perverse and occasioned a miscarriage of Justice in the light of the fact that the parties in their affidavit and arguments were in agreement that the election was held partly on the 14/4/2007 and fully on 28/4/07 and the trial Court had upheld this fact in its ruling of 17th July 2007.”

The Learned Counsel for the 1st Respondent in his own case also formulated two issues for determination as follows:-

“(1) Whether the case of the Appellant before the Learned trial Judge had not become otiose and academic after it has become clear that the suit, a supposed pre-election matter, was filed 10 days after the election has been held and concluded and the result declared.

(2) Whether the Appellant’s right to action pursuant to Section 34(1) of the Electoral Act 2006 are rights exercisable at legal and equitable principle of law.

The Learned Counsel for the 2nd Respondent formulated only one issue for determination as follows:-