Mr. Akan Ekpe Okon v. Peoples Democratic Party & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, JSC (Delivering the leading judgment)

On the 23rd February, 2023 when this appeal came up for hearing, the court pronounced its judgment indicating that reasons for the judgment will be given later. Below are the summary of the facts and the reasons for the judgment.

1st respondent (PDP) conducted its primary election on 25/5/2022 for the nomination of its candidate for the 2023 gubernatorial election to the office of the Governor of Akwa Ibom State of Nigeria.

The appellant and the 2nd respondent were cleared and contested the primary election on 25/5/2022, wherein the 2nd respondent scored the majority votes of 993 while the appellant had 3 votes.

Aggrieved, the appellant vide writ of summons approached the Federal High Court, Uyo, seeking for declaratory reliefs for the disqualification of the 2nd respondent on the grounds that his 1981 and 1983 WAEC and GCE certificates are fake and forged, that the 2nd respondent was not a registered voter and the voter’s card he purported to have is fake and forged, and that his multiple dates of birth are fake and forged.

Both the trial and lower courts gave judgment against the appellant for not proving his case against the 2nd respondent, hence this appeal.

The appellant in his brief framed these issues for determination as follows:

1. Having regard to the provisions of section 84(14) of the Electoral Act, 2022, whether the learned Justices of the Court of Appeal erred in holding that section 84(3) of the Electoral Act, 2022, impaired the appellant’s challenge of the nomination of the 2nd respondent for failure to present and/or possess a valid voter’s card, as required by the 1st defendant’s Electoral Guidelines.
2. Whether the Court of Appeal erred in affirming the decision of the trial court that, DW1 and DW2 (who despite being on subpoena ducestecum, were sworn as witnesses, identified and tendered documents from the witness box) were not available/liable to be cross-examined by the appellant?
3. Having regard to the appellant’s pleadings, as well as the largely uncontroverted oral and documentary evidence tendered and demonstrated by PWs 1 and 2 regarding the forgery of 2nd respondent’s WAEC certificates, whether the lower court erred in affirming the decision of the trial court that the appellant failed to prove his case due to alleged failure to call WAEC as a witness at the trial?
4. Whether the Court of Appeal erred in affirming the decision of the trial court that the appellant failed to prove his case?
5. Whether the failure of the Court of Appeal to pronounce on the wrongful rejection of exhibits P.2, P.3, P.10, and D.10 in evidence, as well as the non-ascription of probative value to these exhibits by the courts below, occasioned a grave miscarriage of justice?
6. Whether the failure of the Court of Appeal to pronounce on the wrongful admission of exhibits P.20, D.1, D.2, D.3, D.4, D.5, D.6, D.8, D.9A and D.9B in evidence, as well as the ascription of probative value to these exhibits (particularly exhibits D.5 and D.6) by the courts below, occasioned a grave miscarriage of justice?

In the joint brief of the 1st and 2nd respondents, these issues were framed for determination of this appeal:

1. All the facts and circumstances of this appeal considered, is there any basis and/or justification for the Supreme Court to set aside and/or disturb howsoever the concurrent judgments of the trial court and the Court of Appeal as prayed for by the appellant hereof?
2. Was there an appeal by the appellant before the Court of Appeal against the ruling by the trial court that was delivered on 11th November, 2022 on the objections by the parties against the admissibility of some provisionally admitted exhibits and if there was any such appeal, did the failure of the lower court to pronounce thereupon occasion any miscarriage of justice?

The 3rd respondent in his turn distilled a lone issue for the determination of this appeal thus:

Whether having regard to the circumstances of this appeal, the appellant is entitled to the reliefs sought?

Issue for determination:

The issue 1 of the joint brief of the 1st and 2nd respondents is apt and compressive for the consideration of this appeal:

All the facts and circumstances of this appeal considered, is there any basis and/or justification for the Supreme Court to set aside and/or disturb howsoever the concurrent judgments of the trial court and the Court of Appeal as prayed for by the appellant hereof?

The lower court in its considered judgment at page 1855 of the record held inter alia: