Engr. Nelson Oseloka Onubogu v. Ifeyinwa Anazonwu & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Awka Division delivered on 4th February, 2023 in appeal No. CA/AW/05/2023, wherein the lower court allowed the 1st respondent’s appeal and set aside the judgment of the Federal High Court, Awka Judicial Division.

The appellant and the 1st respondent both partook as aspirants in the 2nd respondent’s primary election for the nomination of its Senatorial candidate for Anambra North Senatorial District ahead of the 2023 General Election.

At the conclusion of the primary election held on 28th May 2022, the 1st respondent secured the majority of lawful votes cast with 195 votes as against the appellant’s 5 votes.

The appellant was displeased with the 1st respondent’s emergence as the 2nd respondent’s candidate and manifested his displeasure by instituting a suit at the trial court, on 10th June, 2022, via an originating summons seeking the determination of the following questions:

“1. Whether upon a proper interpretation of sections 65(2)(b), 66 (1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 84(3) of the Electoral Act, 2022 and Article 9, 9.1(ii), Article 9.3(i), Article 9.4(i), Article 20, 20.4(iv) of the All Progressives Congress Constitution (as amended 26th March, 2022), the 1st defendant who is not a member of the 2nd defendant does not stand disqualified from being presented as the candidate of the 2nd defendant in the forthcoming Anambra North Senatorial District election.

2. Whether upon a proper interpretation of sections 65(2)(b), 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 29(5), (6), section 84(3) of the Electoral Act, 2022 and Article 9, 9.1(ii), Article 9.3(i), Article 9.4(i), Article 20, 20.4(iv) of the All Progressives Congress Constitution (as amended 26th March, 2022), the 1st defendant whose nomination form and expression of Interest form contains materially false facts about her personal particulars or information, was not qualified to have contested the primary election of 2nd defendant for the nomination of her candidate, in respect of Anambra North Senatorial District, which disqualification prevents her from being presented as the candidate of the 2nd defendant in the forthcoming Anambra North Senatorial District election.
3. Whether upon a proper interpretation of sections 65(2)(b), 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 29(5), (6), section 84(3) of the Electoral Act, 2022 and Article 9, 9.1(1), Article 9.3(i), Article 9.4(i), Article 20, 20.4(iv) of the All Progressives Congress Constitution (as amended 26th March, 2022), the 1st defendant whose Form CF001 (Affidavit in support of Personal Particulars of persons seeking election) contains materially false facts about her personal particulars or information, was not disqualified to contest the primary election of the 2nd defendant, in respect of Anambra North Senatorial District, which disqualification prevents her from being presented as the candidate of the 2nd defendant in the forthcoming Anambra Senatorial District election.
4. Whether upon a proper interpretation of section 65(2)(b), 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 29(5), (6), section 84(3) of the Electoral Act, 2022 and Article 9, 9.1(ii), Article 9.3(1), Article 9.4(1), Article 20, 20.4(iv) of the All Progressives Congress Constitution (as amended 26th March, 2022), it is not the plaintiff’s name that ought to be submitted to the 3rd defendant by the 2nd defendant as her candidate in the forthcoming Anambra North Senatorial District election.”

In anticipation of a favourable resolution of the above questions, the appellant sought the following reliefs:

“1. A declaration that upon a proper interpretation of sections 65(2)(b), 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; section 29(5), (6), section 84(3) of the Electoral Act, 2022 and Article 9, 9.1(i), Article 9.3(i), Article 9.4(7) Article 20, 20.4(iv) of the All Progressives Congress Constitution (as amended 26th March, 2022), the 1st defendant who is not a member of the 2nd defendant stands disqualified from being presented as the candidate of the 2nd defendant in forthcoming Anambra North Senatorial District Election.

2. A declaration that the 1st defendant having presented materially false facts about her personal particulars or information stood disqualified to contest the primary particulars or information stood disqualified to contest the primary election of the 2nd defendant in respect of Anambra North Senatorial District, which disqualification prevents her from being presented as the candidate of the 2nd defendant in the forthcoming Anambra Senatorial District Election.
3. An order declaring all votes cast for the 1st defendant in the primary election of the 2nd defendant which took place on 28th May, 2022 as wasted votes and therefore nullifying same; on the basis that the 1st defendant was not qualified to contest the primary election of the 2nd defendant for the nomination/election of its candidate with respect to the office of Anambra North Senatorial District.
4. An order directing the 2nd defendant to forthwith submit the name of the plaintiff as its candidate for the office of Anambra North Senatorial District, having secured the majority of lawful votes cast.
5. An order mandating the 3rd defendant to accept the name of the plaintiff as the duly elected candidate of the 2nd defendant with respect to the office of Anambra North Senatorial District.
6. For such further order or other orders as this honourable court may deem fit to make in the circumstance of this case.”

The originating summons was supported by an affidavit deposed to by the appellant. He also filed four separate further affidavits, two deposed to by him and two deposed to by persons who disclaimed their purported sponsorship of the 1st respondent. The 1st and 2nd respondents filed separate counter-affidavits in opposition to the originating summons, while the 2nd respondent also filed a Further counter-affidavit.

The complaints of the appellant against the 1st respondent’s emergence as the 2nd respondent’s candidate are that the 1st respondent was not a member of the 2nd respondent, that she supplied false information in her expression of Interest and Nomination Forms, that she had earlier withdrawn from the race to be nominated as the 2nd respondent’s candidate and that she was not sponsored by members of the 2nd respondent in the seven Local Government Areas making up Anambra North Senatorial District as required by the 2nd respondent’s Constitution and guidelines; hence that the 1st respondent was not qualified to be the 2nd respondent’s candidate.

The 1st and 2nd respondent refuted the appellant’s allegations and contended instead that the 1st respondent was rightfully nominated as the 2nd respondent’s candidate having fulfilled all the necessary requirements.

They also filed notices of preliminary objection challenging the jurisdiction of the trial court to entertain the suit principally on the grounds that the issues raised in the appellant’s originating summons are non-justiciable, as they are matters within the internal affairs of the 1st respondent and that the suit was statute-barred.

In a reserved judgment delivered on 29th November, 2022, the learned trial Judge dismissed the preliminary objections and granted the reliefs sought by the appellant. Miffed by the judgment of the trial court, the 1st respondent appealed to the court below via a notice of appeal filed on 9th December, 2022. After the notice of appeal to the lower court was filed, the Registrar of the trial court failed/refused/neglected to compile and transmit the record of appeal to the court below within the time stipulated by the Election Judicial Proceedings Practice Directions, 2022, and this necessitated the 1st respondent compiling and transmitting the record on her own. The 1st respondent equally filed a motion on notice, supported by an affidavit, seeking an order of the lower court extending the time within which to compile and transmit the record of appeal. The appellant did not file a counter-affidavit, but his counsel addressed the lower court orally on points of law.

The appellant also filed a notice of preliminary objection challenging the competence of the appeal on the ground that the record of appeal and the appellant’s brief predicated thereon were incompetent. The lower court heard the substantive appeal, the 1st respondent’s motion on notice, and the appellant’s preliminary objection together and delivered a composite decision in respect thereof. The court granted the 1st respondent’s application for extension of time, overruled the appellant’s preliminary objection, and allowed the appeal. Despite allowing the appeal, the court resolved issues pertaining to the trial court’s jurisdiction against the 1st respondent, holding that the trial court was vested with the requisite jurisdiction to entertain the appellant’s suit as constituted. The appellant was disgruntled by the judgment of the lower court and has instituted this final appeal via a notice of appeal predicated on nine grounds.