Mr. Joseph Waya v. Prof. Priscilla Denen Akaa (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIMA CENTUS NWEZE, JSC (Delivering the leading judgment)

The first respondent herein, instituted an action, by way of originating summons, filed on June 10th, 2022, before the Federal High Court, Markudi Judicial Division, seeking answers to the following questions:

1. Whether by the combined effect of the provisions of section 84(1), 84(5) (a) – (c) and 84(13) of the Electoral Act, 2022 , INEC Regulations and Guidelines for the Conduct of Political Parties Primaries and the 2022 (sic) and the Guidelines for the Conduct of Primaries of the second defendant, the third defendant is under a duty and/or bound to reject, refuse to accept/recognize, refuse to publish/put up the name of the first defendant on the ballot paper as the candidate sponsored or to be sponsored by the second defendant for the Governorship election in Benue State in the 2023 General Election on the ground that the second defendant deliberately and willingly flout/breached the mandatory, statutory provisions and guidelines with respect to the organization and conduct of the office of the Governor of Benue State in the 2023 Governorship Election?
2. Whether by the combined effect of the provisions of section 84(1), (5) (a) – (c) and 84(13) of the Electoral Act, 2022, INEC Regulations and guidelines for the Conduct of Political Parties Primaries and the 2022 (sic) and the guidelines for the Conduct of Primaries of the second defendant, the honourable court is not under a duty to perpetually restrain the third defendant from accepting, recognizing, publishing and/or putting up the name of the first defendant on the ballot paper as the candidate sponsored or to be sponsored by the second defendant for the Governorship election in Benue State in the 2023 General Election on the ground that the second defendant deliberately and willingly flout/breached the mandatory, statutory provisions and guidelines with respect to the organization and conduct of the office of the Governor of Benue State in the 2023 Governorship Election?

In anticipation of favourable resolution of the above questions, she sought the following reliefs:

1. A declaration that the first defendant breached and flouted the provisions of section 84(1), 84(5) (a) – (c) and 84(13) of the Electoral Act, 2022, INEC Regulations and Guidelines for the Conduct of Political Parties Primaries and the 2022 (sic) and the guidelines for the conduct of primaries of the second defendant, in Benue State in the 2023 General Election.
2. An order of perpetual injunction restraining the third defendant from accepting, recognizing, publishing and/or putting up the name of the first defendant on the ballot paper as the candidate sponsored or to be sponsored by the second defendant for the Governorship election in Benue State in the 2023 General Election on the ground that the second defendant deliberately and willingly flout/breached the mandatory, statutory provisions and guidelines with respect to the organization and conduct of the office of the Governor of Benue State in the 2023 Governorship Election. The case of the first respondent from the affidavit evidence in support of the originating summons is that, she, (the first respondent), as well as the appellant herein, participated in the second respondent’s Gubernatorial Primary election to nominate its candidate for the Benue State Governorship Election in the 2023 General Elections. The said primary election was held on May 28th, 2022, wherein the appellant emerged winner.

However, on the scheduled date, she, (the first responded), contended, the second respondent allowed only three hundred and twenty-one delegates, out of the total eligible eight hundred and sixteen delegates, to vote. In the process, they disenfranchised a majority of the delegates eligible to vote for the second respondent’s governorship candidate provided by the Constitution and the guidelines.

The appellant and second respondent, by their counter-affidavits, out-rightly, denied the claims of the first respondent. Their case that the said Gubernatorial Primary Election of the second respondent and all the eligible delegates who presented themselves for accreditation, were duly accredited and indeed cast their votes.

At the conclusion of hearing, the trial court, by its judgment delivered on November 14th, 2022, dismissed the first respondent’s suit for lacking in merit. The judgment of the trial court is contained at pages 97 – 108 of the record of appeal.

Aggrieved by the decision of the trial court, the first respondent appealed to the Court of Appeal, Markurdi Judicial Division, (hereinafter, simply, referred to as “the lower court”), vide a notice of appeal filed on November 22nd, 2022.

After hearing the appeal, and considering the respective submissions of parties, the lower court, by its judgment, delivered on January 23rd, 2023, allowed the appeal and nullified the second respondent’s gubernatorial primary election held on May 29th, 2022. The judgment of the lower court is contained at pages 220 – 233 of the record of appeal.

The appellant was dissatisfied with the decision of the lower court, hence, this appeal to this court vide a notice of appeal filed on January 31st, 2023, containing fourteen grounds of appeal.

Preliminary objection

It is pertinent here to mention that Okpale S. Ojikpa, Esq., leading others for the first respondent, filed a notice of preliminary objection on February 20th, 2023, challenging the competence of this appeal. He urged this court to strike out or dismiss this appeal. The grounds upon which the said preliminary objection are based are contained on the face of the motion paper.

It is, glaringly, obvious that the preliminary objection of the first respondent is purely predicated on the incompetence of the issues for determination formulated by the appellant, as not arising from the one or more grounds of appeal in which they were indicated to have arisen from in the appellant’s brief of argument. Furthermore, that the arguments canvassed in the appellant’s brief do not reflect or substantiate the issues.

Resolution of the arguments in the preliminary objection

By way of prefatory remarks, it may be noted that issues for determination are road maps for any hearing in a court of law. They draw the attention of the court, and the parties, to the precise matters which are in dispute. They are, basically, points of disagreement drawn from the material proposition of fact or of law, to which the parties are at variance, Ejowhomu v. Edok Eter Mandilas Ltd. (1986) 9 S.C 41, 102 – 103; (1986) 5 NWLR (Pt. 39) 1, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 47, 130, Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608.