Hon. Imo Edet Udo V. Mr. Godswill Akpabio & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant had by the originating summons dated and filed on the 19/4/2012 at the Registry of the Federal High Court, Uyo, Akwa Ibom State, submitted the following questions for determination by that court:-

1. Whether having regard to the Provisions of Article 17.1 of the Constitution of the Peoples Democratic Party (2nd Defendant) and Paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections of the Peoples Democratic Party, the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant is qualified to contest the gubernatorial primaries of the 2nd defendant held on 15th January, 2011 for the purpose of choosing its candidate for the office of Governor of Akwa Ibom State at the general elections held in April, 2011.
2. If question 1 above is answered in the negative, whether the plaintiff should not have been returned as the duly elected candidate of the 2nd defendant for the office of the Governor of Akwa Ibom State at the gubernatorial primaries held on 15th January, 2011 having secured the second highest number of lawful vote(s) cast at the said primaries, the 1st defendant not being qualified ab initio to contest therein.
3. Whether in the circumstances of this case, and having regard to Article 17.1 the Constitution and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections of the 2nd defendant, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff is not the only qualified candidate to contest the general election of April, 2011 on the platform of the Peoples Democratic Party for the office of Governor of Akwa Ibom State.

Reliefs were sought by the Appellant against the Respondents as follows:-

1. A DECLARATION that the 1st Defendant is not qualified to contest the re-run primary election of the 2nd Defendant held in Akwa Ibom State on 15th January, 2011 for the purpose of electing the party’s candidate for the office of the Governor of Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. A DECLARATION that the submissions of the name of the 1st Defendant to the 3rd Defendant by the 2nd Defendant as its candidate for the office of Governor of Akwa Ibom State during the gubernatorial election held in April, 2011 is in flagrant violation of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of the Electoral Guidelines for Primary Elections, Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) null and void.
3. A DECLARATION that the Plaintiff is the only candidate validly nominated to contest the governorship election of April, 2011 on the platform of the 2nd Defendant for the office of the Governor of Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. AN ORDER declaring/returning the Plaintiff as the winner of the January 15th 2011 re-run Akwa Ibom State Primary Election of the 2nd Defendant, and afortiori the legitimate candidate of the Peoples Democratic Party for the Governorship election of 26th April, 2011 in Akwa Ibom State having regard to the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
5. AN ORDER setting aside the purported nomination of the 1st Defendant by the 2nd Defendant and the acceptance of the nomination of the 1st Defendant by the 3rd Defendant as Governorship candidate of the 2nd Defendant for Akwa Ibom State as well as the purported election of the 3rd Defendant as Governor of Akwa Ibom State having not qualified to contest the primary of the 2nd Defendant held on 15th January, 2011 in the light of the provisions of Article 17.1 of the Constitution of the Peoples Democratic Party and paragraphs 14, 15 and 16 of its Electoral Guidelines for Primary Elections, Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

A 41 paragraphs affidavit and later a 20 paragraphs Reply to the counter-affidavit both deposed to by the Appellant in support of the summons were filed and served on the Respondents.

The 1st Respondent had filed a notice of preliminary objection after receipt of the summons and later, the 1st and 2nd respondents’ counter affidavit was filed to oppose same.

Written addresses were filed and exchanged by the learned senior counsel who represented the Appellant and the 1st and 2nd Respondents in respect of both the preliminary objection and the summons which were heard together.

In the Ruling delivered on the 30/1/2013 titled “RULING ON PRELIMINARY OBJECTION”, the Federal High Court, after a review of the submissions by the learned senior and other counsel on the preliminary objection, held thus:-

“Those are the submissions of both learned counsel. I thank them for the illuminating authorities cited which I have read with some profit. I have carefully reviewed the argument of counsel on the preliminary objection. I have looked at the originating summons, the supporting affidavit, the preliminary objection and processes filed and found that this matter borders on pre-primary election matter which is an affair of the Peoples Democratic Party (PDP) as such this Court has no jurisdiction to entertain this suit See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) page 85.

The Preliminary Objection is hereby uphold (sic) and the suit struck out. I so hold.”

Apparently aggrieved and thoroughly dissatisfied with the above decision, the Appellant caused a notice of appeal to be filed against same on the 8/3/13, on four (4) grounds.

In the Appellant’s brief settled by Adebayo O. Adelodun, SAN, filed on the 29/4/13 as required by the practice in the court, two (2) issues calling for decision in the appeal, were set out as follows:-

“1. Whether the learned trial court was right to have determined the case on the Preliminary Objection alone without giving any consideration to the merit of the case and without evaluating and making findings from the evidence offered by the parties (Grounds 1 and 2).

2. Whether the Appellant’s case is one of pre-preliminary election matter as held by the trial court and whether the decision of the Supreme Court in PEOPLES DEMOCRATIC PARTY v. TIMIPRE SYLVA & 2 OTHERS (2012) 13 NWLR (Pt. 1316) 35 is applicable to this case in the light of its peculiar facts. (Grounds 3 and 4)”.

On his part, Paul Usoro, SAN for the 1st and 2nd Respondents had filed a notice of preliminary objection on the 13/11/13 and a Respondent’s Notice on the 3/6/13 but deemed on the 7/10/13. Also filed for the 1st and 2nd Respondents, were the 1st and 2nd Respondents’ brief on 14/10/13 and Reply address in support of the Respondents’ Notice and in response to the Appellant’s Reply address, on the 15/11/13. Although the 3rd Respondent was duly served with all the processes of the appeal, it did not file any reaction thereto.

At the oral hearing of the appeal on the 21/11/13, the learned Senior Counsel for the Appellant and the 1st and 2nd Respondents leading other counsel adopted and relied on the briefs and other processes filed in the appeal as their submissions in support of their respective positions in the appeal. We were urged by each of them to uphold their submissions in the determination of the preliminary objection and the appeal.