Congress For Progressive Change & Anor V. Hon. Emmanuel David Ombugadu & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal arose from the dispute as to who, the 2nd Appellant or the 1st Respondent, was the duly nominated and sponsored candidate of the 1st Appellant, the Congress for Progressive Change and elected in the April, 2011 general election to represent the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the lower chamber of the National Assembly.

In the Amended Originating Summons filed on 10/5/2011 in the Lafia Judicial Division of the Federal High Court, the Plaintiffs/Appellants raised the following questions for determination:

“1. Having regard to the clear and unambiguous provision of Section 87 of the Electoral Act, 2010 as well as the provision of Article 25 of the 1st Plaintiff’s Constitution, particularly judicial pronouncement on the supremacy of a political party’s decision in respect of nomination of candidates; whether the Court or any other authority at all can compel a party to nominate or dictate a particular candidate it must sponsor for an election.

2. Considering the elaborate provision of Section 83(1)(4)(c)(ii) of the Electoral Act, 2010, as amended as well as the provision of the 1st Plaintiff’s Manual and Guidelines for Primaries, whether the 2nd Plaintiff was not validly nominated and sponsored as the candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State for the April 2011 General Election.
3. Having regard to the clear provision of the Electoral Act, 2010 as amended, particularly Section 87 and the provision of the 1st plaintiff’s Constitution with regard to holding of primaries, whether the 1st defendant can recognize the name of a person who did not win his party’s primaries as a candidate in the election and who was not sponsored by his political party as its candidate for the elective position.
4. Considering the facts and circumstances of this case especially the supremacy of political party’s decision on sponsorship of candidates and the fact that the 2nd Plaintiff had acquired a vested interest in the election, whether his candidature can be voided, cancelled or nullified by the 1st defendant.”

In anticipation of answers favourable to the Plaintiffs/Appellants, they prayed the Court for the following:

“1. A declaration that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law.

2. A declaration that the 1st Defendant has no vires or statutory power to reject the name of any candidate including the 2nd Plaintiff sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election.
3. A declaration that the 1st Defendant has no statutory power to recognize or accept as candidate the name of any person not submitted or sponsored by his political party.
4. A declaration that the 2nd Plaintiff having won the primaries of the 1st Plaintiff pursuant to which his name has been submitted to the 1st Defendant as the sponsored candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State, is the 1st Plaintiff’s candidate for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general elections.
5. A declaration that under the provisions of the Electoral Act, 2011 the only way the 1st Defendant can change, reject or substitute a duly sponsored/nominated candidate of a political party is through a Court order.
6. An order of the Honourable Court compelling/directing the 1st Defendant to recognize and accept the 2nd Plaintiff as the duly nominated/sponsored candidate of the 1st Plaintiff for the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
7. An order of this Honourable Court that the 2nd Defendant having lost in the primary election of the 1st Plaintiff conducted on 15th January, 2011 and not having been sponsored by the 1st Plaintiff to be its candidate in the April, 2011 general election into the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State cannot be recognized by the 1st defendant as the 1st Plaintiff’s candidate for aforesaid election.
8. An order of this Honourable Court that the sponsorship/nomination of the 2nd Plaintiff by the 1st Plaintiff having been done in accordance with the law cannot be invalidated in law.
9. An order declaring the 2nd Plaintiff as the sponsored candidate of the 1st Plaintiff for the House of Representatives election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
10. An order of perpetual injunction restraining the 1st Defendant, its agents, servants or privies from recognizing the 2nd Defendant as the sponsored candidate of the 1st Plaintiff for House of Representative election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State.”

(See pages 307 to 309 of the transcripts).

A 46-paragraph affidavit in support of the originating process was also filed on 10/5/2011 along with a written address.

On the same date, 10/5/2011, the 2nd Defendant/Respondent filed a Notice of Preliminary Objection predicated on five grounds. A 21-paragraph affidavit in support of the notice of preliminary objection was filed on 9/5/2011. A written address in support of same was filed on 10/5/2011. The 2nd Defendant’s/Respondent’s 42-paragraph counter-affidavit in opposition to the affidavit in support of the Originating Summons was filed, within the time extended for same by the trial Court, on 10/5/2011.

The 2nd Defendant/Respondent also filed his written address opposing the Originating Summons on 10/5/2011. On 20/5/2011, the Plaintiffs/Appellants filed a written address in opposition to the 2nd Defendant’s/Respondent’s preliminary objection. They filed a 3-paragraph further affidavit in support of their Originating Summons on 25/5/2011. On the same date (25/5/2011) they filed a written address “in support of further and better affidavit to the Originating Summons”.

A search in the two volumes of the records and one volume of supplementary record shows that the only process filed by the 1st Defendant/Respondent in the proceedings in the trial Court is a written address on point of law to the Originating Summons. (See pages 740 – 744 of the record).

On 10/6/2011, learned Counsel for the parties adopted and relied on their written addresses in the preliminary objection and their briefs in the Originating Summons. At the conclusion of the proceedings for the day (10/6/2011), the record showed:

“Court: Ruling on the preliminary objection is reserved till the 4th of July, 2011 while judgment in the substantive suit is reserved till 2pm of the same date.” (See page 748 of the record).

On the preliminary objection, the trial Court had held: