Hon. Peter Nwali V. Ebonyi State Independent Electoral Commission (Ebsiec) & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment)

On the 28th August 2013, the appellant herein, as applicant by an originating motion on notice, commenced suit No. FHC/AI/CS/38/2013 in the Federal High Court at Abakaliki against the respondents herein, applying for the enforcement of his fundamental right to privacy and praying for the following reliefs:

A. A Declaration that the applicant and other voters in Ebonyi State are entitled to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

B. A Declaration that the open ballot system of voting, that is queuing behind the candidate of your choice in the full glare of everybody constitutes a violation of the right of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

C. Declaration that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the constitution of Nigeria, 1999 (as altered) and as such, ineffectual.

D. A Declaration that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 is inconsistent with section 52 (1) of Electoral Act, 2010 (as amended) and, as such, null and void.

E. An order of perpetual injunction restraining the 1st respondent from using open ballot system of voting to conduct the Local Government Election slated for the 28th September, 2013 or any other Local Government Election.

F. An order of perpetual injunction restraining the 4th respondent from making available the voter’s register to the 1st respondent for the purposes of using open ballot system to conduct the election.

G. Any other further or other order(s) as the Honourable Court may deem fit to make the circumstances.

The motion on notice is supported by an affidavit of 28 paragraphs deposed to by the appellant. Attached to and exhibited with the affidavit is exhibit PN1 (his voters card), exhibit PN2 (internet printout of statement of 1st respondent on mode of conduct of the then forth coming Local government Election in Ebonyi State) exhibit PN3 (1st respondent’s published programme of activities preceding the 28-9-2013 Local government Election), exhibit PN4 (Ebonyi State Electoral (Amendment) and Related Matters Law, No 5 of 2010), exhibits PN5, PN5B, PN5C and PN6 (extracts of the voice and Citizens Advocate Newspapers showing violence in PDP primaries) a statutory statement of the name and description of the applicant’s reliefs sought and the grounds therefor.

The appellant filed a written argument of his case along with the application. The 1st, 2nd and 3rd respondents filed a notice of preliminary objection to the application along with a written argument of same. They also filed a counter-affidavit in opposition of the application and a written argument opposing the application. The appellant filed an affidavit in reaction to the preliminary objection of the 1st 2nd and 3rd respondents and a written argument of same.

The preliminary objection was argued as counsel to both sides adopted their respective written addresses. Learned Counsel to the 4th respondent then informed the court that they have received all the processes in the case but have filed nothing and that they had nothing to contribute to the preliminary objection. She added that “we are neutral in the matter.”

Thereafter, Learned Counsel for the applicant argued the motion on notice applying for the enforcement of the applicant’s fundamental right, adopting his written address of same. The Learned A -G for the 1st, 2nd, and 3rd respondents relied on their counter-affidavit and written address opposing the application and urging that same be dismissed. Learned counsel to 4th respondent said they filed nothing.

On the 20th September, 2013, the trial court delivered its ruling upholding the preliminary objection and stating that it will not go into the substantive motion having upheld the said objection. It dismissed the suit.