Hon. Emeka Okonji V. Hon. Peter Onwusanya & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellant and the 1st respondent, along with six other candidates, participated in the primary election of the 4th respondent, in order to determine who amongst them would flag the banner of the 4th respondent for the 16th April, 2011 House of Assembly election in respect of the member representing the Oshimili – South Constituency, in the Delta State House of Assembly.

The 1st respondent said he won the said primary election with 105 votes whilst the appellant scored 26 votes. The 2nd respondent published the name of the appellant as the candidate of the 4th respondent for the election of 16th April, 2011. The 1st respondent protested to the 2nd and 4th respondents and insisted that the publication of the appellant’s name as the candidate of the 4th respondent be corrected because according to him, having scored the majority votes of 105, he was the winner in that election and not the appellant.

The 2nd and 4th respondents did not do anything to assuage the complaint of the 1st respondent; hence he had to go to court and access justice. The 1st respondent approached the Federal High Court holden at Asaba, Delta State. He filed an originating summons at that court on 17th February, 2011.

The 1st respondent was the plaintiff in that action. The 2nd respondent herein was the 1st defendant; the 3rd respondent was the 2nd defendant; the 4th respondent herein was the 3rd defendant whilst the appellant was the 4th defendant in the said action.

In the originating summons, three questions were posed to be answered by the court below whilst the action was anchored on five grounds. The 1st respondent prayed for declaratory and injunctive reliefs, accordingly.

For ease of reference and appreciation, the said questions, grounds and reliefs in the originating summons are reproduced, inter alia:

1. “Whether having regard to the provision of Section 87(4)(c) of the Amended Electoral Act, 2010, the publication of the 4th Defendant’s name as the PDP candidate representing the Oshimili – South Constituency for the Delta State House of Assembly elections due in April, 2011, amounts to a violation of the said electoral Act.
2. Whether having regard to the provisions of the Amended Electoral Act, 2010, the 3rd Defendant has the discretion or power to substitute the Plaintiff’s name with that of the 4th Defendant as the PDP candidate representing the Oshimili South Constituency for the Delta State House of Assembly election due in April, 2011.
3. Whether the publication of the 4th Defendant’s name as the P.D.P. candidate representing the Oshimili-South Constituency for the Delta State House of Assembly elections due in April, 2011, regardless of the Plaintiff’s victory at the P.D.P primaries held for the said election amounts to a violation of the Plaintiff’s rights as enshrined in the Amended Electoral Act, 2010, and the 1999 Constitution of the Federal Republic of Nigeria (as amended; thus entitling the Plaintiff to the reliefs sought hereunder.

GROUNDS:

1. By the Mandatory Provisions of the Amended Electoral Act, 2010, where a Political Party conducts primaries to select its candidate for any electoral office, the aspirant that scored the highest number of votes cast at the said primaries shall be the candidate of the Party for the said election.
2. The Defendant, (PDP) conducted primaries (through accredited delegates) on the 6th of January, 2011; at the Oshimili – South Local Government Arcade, Asaba, at the end of which the plaintiff scored the highest number of votes (105) and was duly and openly declared the winner of the said primaries by the PDP returning officer, but strangely, the name of the 4th Defendant and incumbent member representing the said constituency at the Delta State House of Assembly and who came fourth with only 26 votes at the said primaries was published by the 1st and 2nd Defendants as the duly nominated candidate of the PDP for the House of Assembly Election.
3. The Plaintiff was not in any manner whatsoever informed as to the reason why his name was not published as the candidate of the PDP for the said Election having scored the highest number of votes and been duly declared the winner of the aforesaid PDP primaries.
4. The aforesaid action of the Defendants were in flagrant breach of the Plaintiff’s rights under the Amended Electoral Act, 2010; the 1999 Constitution of the Federal Republic of Nigeria (as amended); the PDP Constituency and all relevant Guidelines.
5. The Plaintiff reported the matter to the relevant organs of the 1st and 3rd Defendants but to no avail, hence this action.

THE ANSWER TO QUESTIONS NOS. 1, 2, AND 3 ARE RESOLVED IN FAVOUR OF THE PLAINTIFF, TO WIT: THAT THE PUBLICATION OF THE 4TH DEFENDANT’S NAME AS THE DULY NOMINATED CANDIDATE OF THE PDP FOR THE SAID ELECTION IN PLACE OF THE PLAINTIFF’S NAME WHO WON THE SAID PDP PRIMARIES AMOUNTS TO A VIOLATION OF THE AMENDED ELECTORAL ACT AND THE 1999 CONSTITUTION AS AMENDED; AND CONSEQUENTLY WAS IN VIOLATION OF THE PLAINTIFF’S RIGHTS; THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS FROM THE DEFENDANTS:

1. A declaration that the publication of the 4th Defendant’s name by and/or at the instigation of the 1st, 2nd and 3rd Defendants, as the duly nominated candidate of the Peoples Democratic Party (PDP representing the Oshimili – South Constituency for the Delta State House of Assembly elections to the held on 16th April, 2011, amounts to a violation of the Plaintiff’s rights under the Amended Electoral Act of 2010; the Constitution of the Federal Republic of Nigeria (as amended), and is consequently null and void and of no legal effect.
2. A declaration that the Plaintiff is by virtue of the Amended Electoral Act, 2010, and the 1999 Constitution (as amended) the valid candidate of the Peoples Democratic Party (PDP) entitled to contest the aforesaid forthcoming Delta State House of Assembly Election for the Oshimili – South Constituency; having won the Party (PDP) primaries for the said election.
3. An order setting aside the publication of the 4th Defendant’s name as the duly, nominated PDP candidate for the said election, and in its place, and order directing the 1st, 2nd and 3rd Defendants to recognize, and/or cause the publication of the Plaintiff’s name as the candidate or deemed candidate of the PDP for the said election.
4. An order of perpetual injunction restraining the Defendants from holding out, parading and/or recognizing the 4th Defendant as the PDP candidate for the said election.
5. Any other consequential orders that this Honourable Court may deem fit to make under its inherent powers at the time of judgment so as to give effect to the provisions of the Amended Electoral Act and the 1999 Constitution as Amended”

There is an affidavit of 16 paragraphs in support of the originating summons. Some documentary exhibits were annexed to the said affidavit. 1st respondent/plaintiff’s written address in support of the originating summons; a motion Exparte for interim injunction and also a motion on notice for interlocutory injunction with affidavits and written addresses in support thereof, were all contemporaneously filed along with the originating summons.

The appellant, on 24th February, 2011 filed a memorandum of appearance on protest, dated 23rd February, 2011.

On 28th February, 2011; the appellant filed a preliminary objection pursuant to O. 5 r. 1(1), 2(1) (2) O. 3 r. 6 and O. 6 r. 2 of the Federal High Court (Civil Procedure) Rules, 2009. He prayed for order of court dismissing/setting aside/striking out the suit and all the processes issued therefore in that –

“(i) This suit is unripe for judicial inquiry in that plaintiff did not exhaust all administrative channels for redress provided by the PDP constitution binding on the parties.

(ii) The court lacks jurisdiction to entertain any of the claims in the originating summons.