Dr. Vincent Ele Asor V. Independent National Electoral Commission & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment)

The appellant and the 3rd respondent are registered members of the Action Congress of Nigeria (2nd respondent).

The 2nd respondent was to conduct primaries on the 11th and 12th January, 2011 to elect a candidate to represent her at the elections to be held in April, 2011 for the House of Representatives and the Senate respectively. Appellant’s case is that he obtained forms from the 2nd respondent to contest the Cross River State Central Senatorial District having paid the requisite fee of N600, 000.00.

At the primaries held on 11th and 12th January, 2011 he emerged the winner but the 2nd respondent forwarded the name of the 3rd respondent who never participated at the primaries to the 1st respondent namely, the Independent National Electoral Commission. Being aggrieved the appellant instituted an Originating Summons in the Federal High Court, Calabar, Cross River State on 3rd day of February, 2011 supported by affidavit and documentary exhibits.

The Originating Summons was later amended because the name of the 3rd respondent was given as Mr. Monday Patrick Iwara instead of Mr. Patrick Hycinth Iwara. The amended summons sought the determination of the following questions.

“1. Whether having regard to the plaintiff’s confirmation/affirmation at the 2nd Defendant’s congress/primaries held on the 11th and 12th January, 2011 as the only aspirant seeking nomination to the position of senatorial candidate into the Cross River Central Senatorial Constituency/District. The 2nd Defendant can validly forward the 3rd Defendant name to the 1st Defendant as its candidate for election into the Cross River Central Senatorial Constituency in the 2011 general election even when the 3rd defendant did not participate in the said congress/primaries.

2. Whether upon a true and proper construction and interpretation of Section 87(6) of the Electoral Act, 2010 as amended the 2nd defendant is not duty bound to forward the name of the plaintiff as its duly nominated candidate to contest for the senatorial election into the Cross River Central Senatorial Constituency in view of the plaintiff’s confirmation/affirmation at the 2nd defendant congress/primaries held on the 11th and 12th January, 2011 as the only aspirant seeking nomination to the position of Senatorial Candidate for Cross River Central Senatorial Constituency.
3. Whether the 2nd defendant can validly nominate, sponsor and present the 3rd defendant as its candidate for election into the Cross River Central Senatorial Constituency in the general election of 2011 when the 3rd Defendant did not participate in the 2nd Defendant congress/primaries for nomination of candidate for election into the Cross River Central Senatorial Constituency.”

The appellant sought the following reliefs:

“TAKE FURTHER NOTICE that upon the determination of the above questions the plaintiff shall pray the Honourable Court for the following reliefs:

1. A declaration that the plaintiff having been duly confirmed/affirmed at the 2nd Defendant’s congress/primaries held on the 11th and 12th day of January, 2011 as the only aspirant seeking nomination to the position of Senatorial candidate for the Cross River Central Senatorial Constituency is the person entitled to have his name forwarded to the 1st defendant as the 2nd Defendant’s candidate for Senatorial election into the Cross River Central Senatorial Constituency in the 2011 general elections.
2. A declaration that the plaintiff is the validly nominated candidate of the 2nd defendant to contest for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
3. A declaration that the forwarding or submission of 3rd defendant’s name as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections is wrongful, illegal, null, void and of no effect whatsoever.
4. An order of injunction restraining the 1st defendant, its servants, agents, officers and privies howsoever absolutely from publishing, announcing, using, compiling, clearing, verifying, approving or otherwise dealing in any manner whatsoever with the 3rd defendant as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
5. An injunction restraining the 2nd defendant, its servants, agents, officers, and privies howsoever absolutely from presenting the 3rd defendant as its candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
6. An order directing the 1st and 2nd Defendants to recognize, accept, announce and deal with only the plaintiff as the 2nd defendant’s candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.
7. An order directing the 2nd defendant to forward and present the plaintiff to the 1st defendant as its duly nominated candidate for election into the Cross River Central Senatorial Constituency in the 2011 general elections.”

The 2nd and 3rd respondents filed counter-affidavits supported by documentary exhibits. The counter-affidavits filed by the 2nd and 3rd respondents are very instructive in the determination of this appeal. The counter-affidavits were filed on the 7th and 8th day of March, 2011 by Cletus Ogbang who deposed as follows:

“1. Cletus Ogbang, Male, Engineer, Politician and a Nigeria residing at No. 48 Odukpani Road, Calabar, Nigeria do hereby make Oath and state as follows.

1. That I am the Chairman or the Electoral Committee and Deputy State Chairman of the Action Congress of Nigeria (2nd Defendant/Respondent) in this case and as such the facts of this case are within my personal knowledge save as otherwise stated. I have the consent of the purported 3rd defendant to depose to this affidavit on his behalf.
2. That I have read the affidavit of the plaintiff in support of his Originating Summons.
3. That paragraphs 1, 2, 8, 9, 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23-29 are not to the knowledge of the 3rd defendant and are therefore vehemently denied and the plaintiff is invited to proof strictly all the averments deposed in these paragraphs of his affidavit.
4. That paragraphs 4, 5, 6, 11 of the affidavit of the Originating Summons is admitted.
5. That the Electoral Committee was the Committee entrusted with the responsibility for the conduct and supervision of the Primary Election of the 2nd defendant for the candidates of the 2nd defendant seeking nomination as candidates for the House of Assembly, National Assembly and Governorship in Cross River State for the April, 2011 general election.
6. That the plaintiff was disqualified from seeking nomination into the National Assembly for the Senate seat of the Central Senatorial District of Cross River State when he failed to pay the prescribed nomination fees of N600,000.00 as stipulated by the Guidelines of the 2nd defendant.
7. That the plaintiff was also disqualified when the 2nd defendant found that he was seeking nomination for both House of Representatives and Senate simultaneously. Attached herewith and marked as Exhibit “PAT” is the letter of disqualification written to the plaintiff which I personally handed to the plaintiff in Ogoja or about the 10th January, 2011.
8. That I know as a fact the person who paid the administrative/nomination fees of N600,000.00 imposed by the 2nd defendant and was duly nominated as prescribed by the Guidelines of the 2nd Defendant is the 3rd defendant.
9. That the plaintiff was unable to pay the sum of N600,000.00 as administrative/nomination fees imposed by the leadership of the 2nd defendant for aspirants into the Senate as prescribed in the Guidelines of the 2nd defendant.
10. That the plaintiff was an aspirant for the House of Representatives which he paid the sum of N300,000.00. The plaintiff did not take in the Primary Election after his disqualification by the 2nd defendant.
11. That the documents which the plaintiff has attached to his affidavit are mere contrivances by the plaintiff made by him for the purpose of instituting this case.
12. That when there was no candidate for the Senate for the Central Senatorial District of Cross River State, the plaintiff was urged by the leadership of the party to indicate interest for the Senate only on the condition that he paid the administrative/nomination fees of N600,000.00 as stipulated in the Guidelines of the 2nd defendant which the plaintiff was unable to pay which automatically disqualified from being nominated as candidate for the seat.
13. That the plaintiff was wrong to have indicated interest in both the House of Representatives and Senate contemporaneously and even went further to pay the administrative/nomination fees of N300,000.00 as prescribed by the Guidelines of the 2nd defendant.
14. That paragraph 15 of the affidavit is denied. That the plaintiff never paid the sum of N600,000.00 into the account of the 2nd defendant in the United Bank for Africa or in any other Bank. Exhibits “D1” and “D2” attached to the affidavit are contrived by the plaintiff to further his interest.
15. That the Guidelines did not prescribed that an aspirant would pay his nomination fees by installment. The plaintiff paid N250,000.00 and N50,000.00 when he was supposed to pay N600,000.00 as stipulated by the Guidelines of the 2nd defendant.
16. That the plaintiff merely pay another N300,000.00 in addition to the N300,000.00 he had previously paid to obtain the form for nomination as a candidate to the House of Representatives which is contrary to the Guidelines.
17. That the plaintiff was never recognized as an aspirant for the Central Senatorial District of Cross River State of Nigeria because he never paid the prescribed nomination fees and it was wrong for him to pay N300,000.00 because he had previously paid N300,000.00 to collect the nomination form for the House of Representatives.
18. That in the Report dated 14th day of January, 2011 addressed to the National Secretary of the Action Congress of Nigeria (which the plaintiff has attached to his affidavit in support of the Originating Summons marked as Exhibit “J”) it was noted thus, “It should however be noted for record purposes that Dr. Vincent Asor wanted to run for election into the house of representatives, at that time three (3) aspirants had shown interest and paid nomination fee for the same Federal Constituency including Dr. Vincent Asor…”
19. That the filing by the Plaintiff for nomination into two seats of both the Senate and House of Representatives led the leadership of the 2nd defendant to censure him by disqualifying from the contest after he failed to pay the nomination fees for seat even though the 2nd defendant gave the option of paying the nomination fees of N600,000.00 and forfeiture of the previous N300,000.00 paid for nomination in respect of the House of Representatives.
20. That the plaintiff never contested any primary election which by the Guidelines of the 2nd defendant ought to have commenced with the plaintiff submitting himself to election at the ward congresses within his constituency specially convened for that purpose.
21. That the plaintiff never submitted himself for election at the ward congresses within his constituency which comprises Abi, Boki, Ikom, Obubra, Etung and Yakurr Local Government Areas of Cross River State of Nigeria.
22. That Exhibit “H” attached to the affidavit of the plaintiff in support of his Originating Summons is a plain forgery and never emanated from the Secretariat of the 2nd defendant.

PARTICULARS OF FORGERY:

i. The 2nd defendant never designated the Nogak Polytechnic, Ikom as the Centre for the purpose of the affirmation of the nomination of the plaintiff on the 11th day of January, 2011.

ii. The signature of Gabriel Amanke who signed as E.O. Ikom is forged.

iii. The results of primary election of the 2nd defendant were not collated in the way and manner it is shown in Exhibit “H”.