Hon. Emeka Atuma v. All Progressives Congress (APC) & Ors (2023) LLJR-SC

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Owerri Division delivered on 30th November, 2022 wherein the court allowed the 3rd respondent’s appeal and set aside the judgment of the Federal High Court, Umuahia Division which had earlier dismissed his claims.

A synopsis of the facts leading to the case is as follows: The 3rd respondent was an aspirant for the position of Senator representing Abia Central Senatorial District under the platform of the 1st respondent, with the primary election scheduled to take place on 28th May, 2022.

The 3rd respondent alleged that the primary election took place as scheduled on 28th May, 2022, but was not concluded until the following day, that is, 29th May, 2022. He claimed to have won the primary election, which was conducted by direct mode, by scoring 157 votes, ahead of his only challenger, one Chief Henry Ikoh, who scored 152 votes. It was also alleged that the appellant did not participate in the election, but rather participated in the gubernatorial primary election of the 1st respondent.

On the other hand, appellant and the 1st respondent claimed that the appellant withdrew from the governorship primary election. It was their case that Abia Central Senatorial primary election was initially scheduled for 28th May, 2022, but that same was postponed.

They claimed that the appellant participated in, and won, the 1st respondent’s Abia Central Senatorial primary election which was purportedly conducted on 7th June, 2022, wherein he scored 200 votes, while the 3rd respondent came second with 35 votes. The appellant’s name was subsequently forwarded to the 2nd respondent.

Displeased with the submission of the appellant’s name, the 3rd respondent instituted the suit before the Federal High Court, Umuahia Division via an originating summons wherein he submitted the following questions for the trial court’s determination:

“1. Whether by the combined reading of sections 31, 33 and 84 of the Electoral Act, 2022 and Article 7 (iv), (viii), (ix), (xi), (xii), (xiii), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendant’s Constitution and Article 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the 1st defendant can validly replace the candidate that emerged from the party’s primary elections validly conducted in compliance with the Electoral Act, the Constitution of the 1st defendant and the clear provisions of Article 19 of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections without the consent in writing of the candidate?

2. Whether by the combined reading of section 84 of the Electoral Act, 2022, Article 7 (iv), (viii), (ix), (x), (xi), (xii), Articles 19.6(ii), 20.3, 20.4 of the 1st defendant’s Constitution and Articles 13, 22(II)(A), 26(k) of the 1st defendants guidelines for the nomination of candidates for the 2023 General Elections, the National Chairman of the 1st defendant can validly substitute the candidate that emerged from the party’s primaries conducted for Abia Central Senatorial District on the 28th and 29th day of May, 2022 with another person’s name without recourse to the provisions of the law?
3. Whether by the combined reading of section 84 of the Electoral Act, Article 7(iv), (viii), (ix), (xi), (xi), (xii), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendant’s Constitution and Articles 19, 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the 3rd defendant who did not participate in all the processes leading to the Abia Central Senatorial District primary elections and indeed the primary elections held on the 28th and 29th day of May, 2022 can be validly submitted by the 1st defendant to the 2nd defendant as its candidate in the forthcoming general elections for Abia Central Senatorial District?
4. Whether by the combined effect of sections 31 and 33 of the Electoral Act, 2022 , an aspirant declared as a winner of the primary elections conducted and therefore the candidate of the 1st defendant for Abia Central Senatorial District can be substituted by the 1st defendant without a written letter of withdrawal from the candidate?
5. Whether by the combined reading of section 84(5) (C) (ii) of the Electoral Act, Article 7 (iv), (vii), (ix), (xi), (xii), (xiii), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendants Constitution and Articles 19, 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the purported substitution of the Plaintiff’s name with that of the 3rd defendant who did not purchase the forms for Senatorial District Primary Elections for Abia Central did not participate in all the processes leading to the said primaries and did not indeed participate in the Primary Elections conducted by the 1st defendant for Abia Central Senatorial District and the submission of the name to the 2nd defendant by the Party Chairman of the 1st defendant as emanating from Abia Senatorial Districts is not in violation of the clear provisions of the law and therefore invalid, null and void?

Upon the determination of above questions, the 3rd respondent as plaintiff hereby sought for the following reliefs:

“1. A declaration that the combined reading of sections 31 , 33 and 84 of the Electoral Act, 2022 Article 7 (iv), (viii), (ix), (xi), (xi), (a), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendant’s Constitution and Articles 19, 22(II)(A) 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the 1st defendant cannot validly replace the candidate that emerged from the party’s primary elections validly conducted in compliance with the Electoral Act, the Constitution of the 1st defendant and the clear provisions of Articles 19, 22(II)(A) 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections without the consent in writing of the candidate.

2. A declaration that by the combined reading of section 84 of the Electoral Act, 2022, Article 7 (iv), (viii), (ix), (xi), (xii), (xiii), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendant’s Constitution and Articles 19, 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the National Chairman of the 1st defendant cannot validly substitute the candidate that emerged from the party’s primaries conducted for Abia Central Senatorial District on the 28th and 29th day of May, 2022 with another person’s name without recourse to the of the law.
3. A declaration that by the combined reading of section 84 of the Electoral Act, Article 7 (iv), (viii), (ix), (xi), (xii), (xiii), Articles 19.6 (ii), 20.3, 20.4 of the 1st defendant’s Constitution and Articles 19, 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Elections, the 3rd defendant who did not participate in all the processes leading to the Abia Central Senatorial District primary elections and indeed the primary elections held on the 28th and 29th day of May, 2022 cannot be validly submitted by the 1st defendant to the 2nd defendant as its candidate in the forthcoming general elections for Abia Central Senatorial District.
4. A declaration by the combined effect of sections 31 and 33 of the Electoral Act, 2022, in aspirant declared as a winner of the primary elections conducted and therefore the candidate of the 1st defendant for Abia Central Senatorial District cannot be substituted by the defendant without a written letter of withdrawal from the candidate.
5. A declaration by the combined reading of section 84(5) (C) (ii) of the Electoral Act, Article 7 (v), (vii), (ix), (xi), (x), (xi), Articles 19.6 (ii), 20.3. 20.4 of the 1st defendants Constitution and Articles 19, 22(II)(A), 26(k) of the 1st defendant’s guidelines for the nomination of candidates for the 2023 General Election, the purported substitution of the plaintiff’s name with that of the 3rd defendant who did not purchase the forms for Senatorial District Primary Elections for Abia Central, did not participate in all the processes leading to the said primaries and did not indeed participate in the primary elections conducted by the 1st defendant for Abia Central Senatorial District and the submission of the name to the 2nd defendant by the Party Chairman of the 1st defendant as emanating from Abia Senatorial Districts is in violation of the clear provisions of the law and therefore invalid, null and void.
6. An order nullifying the unilateral substitution of the plaintiff’s name as the validly elected candidate for that of the 3rd defendant who never participated in the primary election of the 1st defendant for the Abia Central Senatorial District held on the 28th and 29th day of May, 2022.
7. An order nullifying and setting aside the election result submitted to the defendant on the 16th day of June, 2022 parading the name of the 3rd Defendant as the candidate of the 1st defendant in the Abia Central Senatorial District
8. An order restraining the 2nd defendant (INEC) from recognizing the 3rd defendant whose name was sent by the 1st defendant to the 2nd defendant as the candidate of the 1st defendant for the Abia Central Senatorial District held on the 28th and 29th day of May, 2022 as the plaintiff was the validly declared winner of the said Primary Election for Abia Central Senatorial District.
9. An order mandating the 1st and 2nd defendants to immediately include the name of the plaintiff as the candidate of the 1st defendant, having emerged the winner of the Abia Central Senatorial District Primary Elections held on the 28th day of May, 2022.
10. And for such further order as this honourable court may deem fit to grant in the present circumstances.”

The originating summons was supported by an affidavit deposed to by the 3rd respondent as well as a written address. The 3rd respondent attached and relied on several annexures in the said affidavit, including exhibit Q series which consists of:

• Covering letter for submission of APC primaries for Senate and House of Representatives.
• Report on the inability of the APC to conduct congresses in Abia State.
• Resolution/decision of the APC Federal House of Representatives primary in Abia State.
• Report of the APC Senatorial primary election held in Abia State on 28th May, 2022.
• APC House of Representatives primary election result dated 27th May, 2022.
• APC Abia Central Senatorial District primary election result dated 28th May, 2022.
• APC Abia North Senatorial District primary election result dated 27th May, 2022.
• APC primary election result for Ikwuano/Umuahia Federal Constituency dated 27th May, 2022.

The appellant and the 1st respondent each filed their counter-affidavits and written addresses in support thereof. The 2nd respondent, INEC, on its part filed an affidavit of facts deposed to by one of its employees in respect of the primary election held on 28th May, 2022. In response to the appellant’s and 1st respondent’s counter-affidavits, the 3rd respondents filed a composite further affidavit and a composite written address.

At the hearing of the suit, parties adopted their processes and the matter was adjourned for judgment. In a reserved judgment delivered on 4th October, 2022, the learned trial Judge held that the 3rd respondent did not prove his case and that he did not show that he won a valid primary election of the 1st respondent.

Dissatisfied by the judgment of the trial Federal High Court, the 3rd respondent appealed to the lower court, and it was satisfied that the 3rd respondent had proved his entitlement to the reliefs sought and the appeal was allowed. The 2nd respondent was ordered to publish the name of the 3rd respondent as the winner of the 1st respondent’s primary election for the Abia Central Senatorial District primary election as well as the valid candidate of the party for 2023 general election. The court placed heavy reliance on exhibit Q series emanating from INEC which, in the opinion of the lower court, proved conclusively that the 3rd respondent won the 1st Respondent’s primary election. The appellant was peeved by the judgment of the lower court and has instituted the instant appeal by lodging a notice of appeal at the registry of the lower court, which notice is anchored on 25 grounds of appeal.