Sen. (Dr.) Ita Solomon Enang v. Mr. Akanimo Asuquo (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal Abuja Division, delivered on 19th January, 2023 allowing the appeal of the 1st respondent and setting aside the judgment of the Federal High Court, sitting at Uyo Judicial Division, delivered on 14th November, 2022 in suit No. FHC/UY/CS/114/2022.

The facts that led to the suit instituted by the appellant at the trial Court are as follows: The appellant, as a member of the 2nd respondent, All Progressives Congress (APC), was a candidate in the party’s gubernatorial primary election scheduled to hold on 26th May 2022 to select the party’s flag bearer for the Governorship of Akwa Ibom State in the 2023 general elections.

According to him, at all times material to the conduct of the election, the 1st respondent was a full-fledged card-carrying member of the Peoples Democratic Party (PDP).

That he was given a Provisional Clearance Certificate by the PDP to contest and did in fact contest the PDP Gubernatorial Primary Election which took place in Akwa Ibom State on 25th May, 2022.

To his greatest surprise, the 1st respondent surfaced on 26th May 2022 to contest the 2nd respondent’s primary. That he participated in the said election in which the appellant was also a contestant and was declared the winner.

It was also his contention that there were substantial irregularities and non-compliance with the provisions of the Electoral Act and the party’s constitution and guidelines in the conduct of the primary.

He alleged that the Electoral Panel sent from Abuja to conduct the primary was waylaid and blocked on their way to the venue. It took the intervention of the appellant who interacted with the Police and Officers of the Department of State Security (DSS) to ensure that they were kept in DSS custody for their safety.

By midnight on 26th May, 2022, when he made enquiries from the Chairman of the panel as to the likely re-scheduling of the election due to the late hour and concerns for safety, the Chairman initially informed him that he had instructions not to conduct the election after midnight. He later informed him that he had been instructed to proceed to the party secretariat at No. 6, Ekpo Abot Street, Uyo to conduct the election.

He thereafter advised the Chairman to call all the aspirants and delegates to intimate them of the development since most of them had left. He opined that it was unsafe to conduct the election at that hour and a postponement was suggested.

About 30 minutes after he got home, he received a call from the party Secretariat that the Chairman had arrived at the secretariat and was ready to conduct the election. Despite his objection to the delegates’ list sought to be used and the fact that there were no INEC officials or Police Officers present, the Chairman was set to conduct the election.

He left the venue in protest and was later informed by his agent that the 1st respondent was returned as the winner with 1227 votes while he was allotted 34 votes. That the petition he wrote to the 2nd respondent’s appeal committee and letters written to other organs of the party were met with silence. This was what prompted the institution of the suit before the trial court vide an originating summons filed on 8/6/2022.

By his amended originating summons filed on 28/6/2022 he sought the determination of the following questions:

1. Whether the Governorship Primary election of the All Progressives Congress purportedly conducted in the early hours of Friday, the 27th day of May, 2022 Akwa Ibom State compiled with the provisions of section 84(1) of the Electoral Act, 2022, the Constitution of the Federal Republic of Nigeria and the Constitution of the Progressives Congress, including the guidelines laid down for the conduct of the primaries?
2. And if not, whether the outcome of the purported primary election is not null, void and of no effect whatsoever, thereby necessitating this honourable court to restrain and prohibit the 2nd and 3rd defendants from giving effect to and acting on it?
3. Whether the 1st defendant Mr. Akanimo Asuquo Udofia, who is not a registered member of the All Progressives Congress but actually a member of the People Democratic Party is not disqualified from contesting the Governorship Primary of the 2nd defendant?
4. Whether the nomination of the 1st defendant as the Governorship candidate of the 2nd defendant for 2023 General election in Akwa Ibom State is in compliance with Article 9.5, Article 21A(ii) and Article 31(1) (i) of the Constitution of the 2nd defendant?
5. Whether the nomination of the 1st defendant, who did not participate in all the stages relevant and leading to a valid nomination of a person as candidate of the 2nd defendant for the Governorship Election of 2023 did not contravene section 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, Act No. 8 and thus disqualified him from being nominated as a candidate of the 2nd defendant?
6. Whether the plaintiff who filed an appeal to the 2nd defendant’s Gubernatorial Appeal Panel against the purported nomination of the 1st defendant and wrote several letters to the 2nd defendant on the nullity of the purported primary election and which appeal and letters were not considered was not therefore deliberately denied fair hearing in the conduct of the 2nd defendant’s Governorship Primary Election purportedly conducted on Friday, the 27th day May, 2022 at Uyo, Akwa Ibom?

In the event that the questions were answered in his favour, he sought the following reliefs: