Hon Uchenna Igwebuike Ekwe v. Hon Chukwuma Christopher Amadi & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal Abuja Division delivered on the 1st day of February, 2023 in appeal number, CA/ABJ/ CV/1378/2022.

The 1st respondent in this appeal commenced an action at the Federal High Court by originating summons in suit No. FHC/ABJ/CS/ 1194/2022 seeking for the determination of the one question, and that upon the determination of the question, certain orders and declarations be made, the question, orders, and declarations sought to be made by the court are set out as follows:

a. “Weather upon a proper construction of section 23(1) and (2) sections 31, 32, 33, and 34 of the Electoral Act, 2022, the plaintiff (1st respondent) having been validly nominated as the senatorial candidate of the first defendant second respondent for the Enugu West senatorial d1strict for the 2023 general elections and the 1st defendant having forwarded and uploaded the name of the plaintiff to the 2nd defendant 3rd respondent as her validly nominated senatorial candidate for the Enugu West senatorial district and the 2nd defendant INEC having published the name of the plaintiff as the validly nominated senatorial candidate for the Enugu West senatorial district for the 2023 general elections the defendants can lawfully change or substitute the plaintiff as the senatorial candidate of the 1st defendant for the Enugu West senatorial district for the 2023 general elections when the plaintiff is not dead and did not withdraw his candidature as the senatorial candidate of the 1st defendant for the Enugu West senatorial district for the 2023 general elections.

b. An order declaring as null and void and of no effect whatsoever any purported change or substitution by the defendants whether acting by themselves or through their representatives’ agents or any person howsoever so-called of the plaintiff as the validly nominated senatorial candidate of the 1st defendant for the Enugu West senatorial district for the 2023 general elections.

c. A declaration that the plaintiff remains the validly nominated senatorial candidate for the Enugu West senatorial district for the 2023 general elections except the plaintiff withdraws his candidature as provided for in section 31 of the Electoral Act, 2022.

d. An order of injunction restraining the defendants whether by themselves or through their representatives’ agents or any person or persons howsoever called from changing or substituting the plaintiff as the validly nominated senatorial candidate of the 1st defendant for the Enugu West senatorial district for the 2023 general elections except the plaintiff withdraws his nomination as provided for in section 33 of the Electoral Act, 2022.”

The 1st respondent filed an affidavit disclosing that he was validly nominated, verified, and cleared as the candidate of the 2nd respondent for the Enugu West Senatorial District for the 2023 general elections, and that his name was accordingly forwarded to the 3rd respondent, but he became aware of some surreptitious moves to replace his name by some people as the candidate of the 2nd respondent. He also averred that he wrote a letter to the 2nd respondent dated 7th July, 2022 complaining about the moves to replace his name as the candidate of the party.

As soon as the originating summons was filed, the appellant in this appeal applied by motion filed on the 12th day of August, 2022 to be joined as 3rd defendant, the appellant alleged that the 1st respondent resigned from the party and following his resignation, the appellant was elected following a special congress held on the 13th day of July, 2033, the congress according to the appellant was held following the voluntary withdrawal of the 1st respondent from the party.

Appellant filed a preliminary objection challenging the competence of the originating summons, the objection was discountenanced, and the originating summons was determined in favour of the 1st Respondent. The trial court held that the 1st respondent as plaintiff before the trial court did not voluntarily withdraw from the party, and further held that the subsequent primary election which produced the appellant as a candidate was null and void. The appellant became aggrieved by the decision of the trial court and appealed to the lower court, the intermediate court also dismissed the appellant’s appeal, he became nettled and further appealed to this court.

The appellant through learned senior counsel Osigwe SAN, filed the appellant’s brief of argument on the 22nd day of February, 2023 and crafted two issues for determination, the issues are:

1. “Was the lower court right in holding that the suit was not statute-barred having been commenced more than 14 days after the accrual of the cause of action thereby robbing the trial Court of the jurisdiction to entertain same (distilled from ground 2 of the notice of appeal).
2. Was the lower court right in refusing to hold that in view of the material conflicts in the affidavits of the parties surrounding the alleged forgery of the first respondent’s letter of withdrawal oral evidence ought to have been called to resolve the conflicts or pleadings ordered to be filed (d1stilled from ground 3)

The 1st respondent through learned senior counsel Tochukwu Maduka SAN filed the 1st respondent’s brief of argument on the 5th day of March, 2023, and nominated the following three issues for determination:

1. “Whether the court below was right in affirming/upholding the decision of the trial court that the 1st respondent’s suit was not statured barred? (Distilled from ground 2 of the notice of appeal)
2. Whether the court below was wrong in holding that the trial court rightly determined the 1st respondent’s amended originating summons on the affidavit evidence of the parties, without calling oral evidence? (Distilled from ground 3)
3. Whether the court below was wrong in holding that the trial court rightly entered judgment in favour of the 1st respondent, the 1st respondent having shown that he did not withdraw his candidacy as the Senatorial Candidate of the 2nd respondent for Enugu West Senatorial District? (Distilled from grounds 4, 5 and 6).”

The 2nd respondent through learned counsel Tochukwu Peter Tochukwu, Esq. filed the 2nd respondent’s brief of argument on the 3rd day of March, 2023, counsel also crafted the following three issues for determination set out as follows:

1. “Was the lower court right in holding that the suit was not statured-barred, having been commenced more than fourteen days after the accrual of the cause of action, thereby robbing the trial court of the jurisdiction to entertain same (Distilled from ground 2 of the notice of appeal)
2. Was the lower court right in refusing to hold that in view of the material conflicts in the affidavits of the parties surrounding the alleged forgery of the 1st respondent’s letter of withdrawal, oral evidence ought to have been called to resolve the conflicts, or pleadings ordered to be filed. (Distilled from ground 3 of the notice of appeal)
3. Whether the Court of Appeal’s evaluation of the evidence and issues before the court, and the resultant findings/holding that the 1st respondent did not withdraw his candidacy is wrong in law? (Distilled from grounds 1, 4, 5, 6, and 7 of the notice of appeal).”

The 3rd respondent through learned counsel E. C. Ikeji, Esq. filed the 3rd respondent’s brief of argument on the 2nd day of March, 2023 and argued a lone issue for determination as follows: