Hon. Ogbonna Asogwa V. Peoples? Democratic Party & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On the 8th April, 2011 the Honourable Justice I. N. Auta, Ag. Chief Judge of the Federal High Court delivered the ruling at pages 751 – 865 of the Record in the suit of the Appellant as the Plaintiff. The Appellant was aggrieved by the decision and pursuant to the leave granted to him, the Appellant filed the Notice of Appeal at pages 870 – 875 on 27th January, 2012.

The appellant, as Plaintiff, had approached the Federal High Court sitting at Abuja vide originating summons filed on 22nd March, 2011 seeking four (4) reliefs, to wit:

1. Declaration that the Plaintiff’s the duly nominated candidate of the Peoples’ Democratic Party (PDP) representing Nsukka/Igbo Eze South Federal Constituency in the Primary Elections conducted on the 12th day of January, 2011 for the elections scheduled for April, 2011.
2. An order of injunction restraining the Peoples’ Democratic Party (PDP), their servants and agents, privies, howsoever from forwarding the name of any other candidate other than that of the Plaintiff to the 2nd Defendant as the Peoples’ Democratic Party (PDP) candidate for the Legislative Elections scheduled for the April 2011 representing Nsukka/Igbo Eze South Federal Constituency.
3. An order compelling the 1st Defendant to issue INEC nomination forms to the Plaintiff.
4. An order restraining the 2nd Defendant from publishing any other name other than of the Plaintiff as the candidate for the election into the House of Representatives for Nsukko/Igbo Eze South Federal Constituency in the election scheduled for April, 2011.

The Peoples’ Democratic Party (PDP) was the 1st Defendant in the said suit. The cause of action against the PDP was that, inspite of the Appellant, allegedly, winning the first primary election conducted by the PDP to elect the party’s candidate with 675 votes on 12th January, 2011, the PDP refused or failed to issue INEC nomination forms to the Appellant, as the Plaintiff, and that the PDP had “replaced” him without recourse or information to him. He posited that “there was no other primary election conducted by the party i.e. the 1st Defendant in accordance with the Electoral Act, 2011 or any other extant regulation.”

The 2nd Defendant in the suit, INEC, was apparently a nominal party.

Nothing was said about the 2nd and 3rd Defendants, in terms of the cause of action, except the terse averment in paragraph 19 of the Affidavit of urgency to wit –

19. That the 2nd Defendant’s the body charged with the conduct of the election, and should be compelled to publish my name as a candidate for the April, elections.

Preliminary to the four reliefs sought the Appellant, as the plaintiff, submitted 5 questions for determination, prominent among the questions are –

i. whether having won the primary election conducted on 12th January, 2011 by the PDP, the Appellant was not the PDP candidate for the April, 2011 elections to the National Assembly in Nsukka/Igbo Eze South Federal Constituency.

ii. whether the PDP could set aside the primary election conducted on 12th April, 2011 without any petition, complaint or irregularity in the conduct of the primary election.

The 1st and 3rd Defendants/Respondents said, in their Counter Affidavits, that there were several petitions or complaints about the January 12, 2011 primary elections in Nsukka/Igbo Eze South Federal Constituency, and that in consequence thereof, the National Working Committee of the PDP, on 14th January, 2011, “resolved that the entire primaries in the zone be repeated.” The Affidavit in support of the originating summons had several documents exhibited thereto, like the counter affidavits of the Defendants.

In a style, most unusual, the learned trial Judge reproduced almost all the processes filed in the bulky ruling. He found inter alia in the Ruling that;

i. The position of the parties is so full of claims and counter claims (page 851).

ii. There are conflicting documents with regard to the conduct of the election primaries. There is the Chief Babatope report, which stated that it was peaceful and no complaints, and the other panel. The 3rd Defendant also tendered documents to show that he petitioned the 1st Defendant (pages 861 – 852).

iii. From the exhibits tendered by both parties there are serious dispute (sic) as which is the correct one. The issues contained in this case are very contentious and it goes without saying that there is a serious dispute between the parties. The issues raised in this case and the conflicting documents filed in this case, it can not be effectively resolved by affidavit evidence. (page 862)