Honourable Gozie Agbakoba V. Independent National Electoral Commission (INEC) & Ors (2007)

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JIMI OLUKAYODE BADA, J.C.A.

This is an appeal against the Judgment of the Federal High Court, Enugu, delivered on the 5th day of April 2007 in Suit No:FHC/EN/CS/56/2007: Honourable Gozie Agbakoba V. Independent National Electoral Commission (INEC) & 2 Others.

By an Amended Originating Summons the Plaintiff now Appellant claimed against the Defendants now Respondents as follows:-

“(1) A Declaration that the 1st Defendant’s statutory power to substitute a nominated candidate of a political party under Section 34 of the Electoral Act 2006, is qualified and not absolute.

(2) A declaration that the 1st Defendant has no power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.

(3) A declaration that the 1st Defendant cannot substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.

(4) A declaration that in view of Section 36 of the 1999 Constitution the 1st Defendant cannot fairly and constitutionally determine the cogency and verifiability of substitution of a nominated candidate without some notice to the candidate or hearing from or input by the affected candidate.

(5) A declaration that the legislative innovation introduced by Section 34 of the Electoral Act is aimed at deepening and strengthening Nigeria’s democracy in relation to substitution of a nominated candidate in an election.

(6) A declaration that the substitution of Plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples Democratic Party PDP for election into the House of Representatives in respect of Onitsha North and South Federal Constituency of Anambra State in the manner it did is ultra vires, undemocratic, arbitrary, unlawful, illegal, unconstitutional, null and void.

(7) An order setting aside the purported substitution, same being in excess of the statutory powers of the 1st Defendant, in abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.

(8) An order of perpetual injunction directing the 1st Defendant to restore the Plaintiff as the duly nominated, verified, cleared and published candidate for the Peoples Democratic Party for election into the House of Representatives in respect of Onitsha North and South Federal Constituency of Anambra State.”

In a considered Judgment, the learned trial Judge found that the Plaintiff/Appellant’s action lacks merit and it was dismissed.

Dissatisfied with the Judgment of the lower court, the appellants now appealed to this Court.

The appellant formulated three issues for determination as follows:-