Mr. Julius Oghenevwegba Bobi V. Mr. Edoja Rufus Akpodiete & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the plaintiff (now Appellant) against the judgment of the Hon. Justice N. I. Buba of the Federal High Court sitting in Asaba delivered on 27th June 2012 in Suit No. FHC/ASB/CS 32/2011, a pre-election suit commenced vide originating summons on 8th February, 2011 by the Plaintiff against the Defendants now Respondents.

This appeal arose from the primary election of the 2nd respondent, Democratic Peoples Party (DPP), conducted and held on the 13th day of January, 2011, to elect a candidate to contest the main election, which was held and conducted by the 3rd respondent, INEC, on the 26th day of April, 2011, on the platform of the 2nd respondent, in respect of the seat of Ughelli North Constituency II in the Delta State House of Assembly.

In that primary election, the 1st, 4th, 5th respondents and one other person and the appellant were the 5 (five) contestants (candidates). At the end of the primary election, the 1st respondent reportedly scored the majority votes with thirty-three (33) votes. He was declared and returned as the winner of the primary election. The appellant reportedly scored twenty-nine (29) votes, the 4th respondent scored thirty-one (31) votes, while the 5th respondent scored nineteen (19) votes and the other contestant scored eight (8) votes.

By an originating summons filed in the registry of the trial court below on the 8th day of February, 2011, the appellant filed the suit on appeal, contending in the main that the primary election was marred and/or flawed with irregularities and also contending that the 1st respondent, who was declared first in the said primary election and the 4th respondent who was placed 2nd in the primary election, were not qualified to participate in the primary election and therefore he, the appellant who placed 3rd in the primary election be returned as the winner of the primary election that the appellant alleged was flawed and/or marred with gross irregularities.

Based on the application of the appellant, the court below joined the 4th and 5th respondents as parties and the appellant thereafter filed an amended originating summons in which the appellant claimed the following reliefs and formulated the following questions for determination.

(i) A DECLARATION that the 1st and 4th defendants were not eligible to contest the primary election held on the 13th day of January, 2011 for Delta State House of Assembly, Ughelli North Constituency II by the 2nd defendant by virtue of the relevant provisions of the DPP Constitution, the Delta State Public Service Rules, the Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

(ii) A DECLARATION that the 1st and 4th Defendants did not win the prescribed majority votes cast in the primary election held on the 13th day of January, 2011 for Delta State House of Assembly, Ughelli North Constituency by the 2no defendant; and that thereby the 1st defendant was not duly returned as the 2nd defendant’s House of Assembly candidate for Delta State House of Assembly, Ughelli North Constituency II in view of non-compliance with the provisions of the DPP Constitution and the Electoral Act 2010 (as amended).

(iii) A DECLARATION that the said primary election held on the 13th of January, 2011 for Delta State House of Assembly, Ughelli North Constituency II was marred and tainted with irregularities practiced by and accruing to the 1st and 4th defendants and was thereby illegal, unlawful and unconstitutional as it breached the provisions of the DPP Constitution and the Electoral Act 2010 (as amended).

(iv) A DECLARATION that the 1st and 4th defendants were ascribed 1st and 2nd positions respectively, in the 2nd defendant’s primary election held on the 13th of January, 2011, for Delta State House of Assembly, Ughelli North Constituency II, by virtue of the irregularities and non-compliance with which the primary election was fraught with; and as such the 1st and 2nd positions improperly accrued to the 1st and 4th defendants.

(v) A DECLARATION that the claimant being the person who has the highest votes cast in the primary election held on the 13th of January, 2011 for Ughelli North Constituency II of Delta State – after the deduction of the unlawful votes ascribed to the 1st and 4th defendants, on grounds of non-compliance and irregularity – is the lawful candidate of the 2nd defendant in the General Election held on the 26th of April, 2011 for Delta State House of Assembly, Ughelli North Constituency II and therefore the winner thereof; having satisfied the Electoral and constitutional provisions in that regard and entitled to be recognized and accepted by the 3rd defendant as such.

(vi) A DECLARATION that the purported substitution of the name of the 1st defendant with that of the 5th defendant, by the 2nd defendant to the 3rd defendant, as the 2nd defendant’s candidate for the General Election held on the 26th of April, 2011 for Delta State House of Assembly, Ughelli North Constituency II during the pendency of this suit challenging the primary election is illegal, unlawful, null and void and of no effect whatsoever.

vii. A DECLARATION that by virtue of the lawful votes cast, the claimant is the one entitled to be substituted with the 1st defendant by the 2nd defendant before the 3rd defendant – seeing that the 1st defendant, who purportedly came 1st in the primary election held on the 13th of January, 2011 for Ughelli North Constituency II of Delta State and was thereafter nominated by the 2nd defendant for the General Election held on the 26th of April, 2011 has duly withdrawn his candidacy thereof.

viii. A DECLARATION that the purported substitution of the 5th defendant by the 2nd defendant before the 3rd defendant for the General Election held on the 26th of April, 2011 is illegal, unlawful, null and void and of no effect whatsoever – seeing that the signature of the 5th defendant’s nominators were forged, as well as his Nomination Form was signed by the 20th Nominator, who is a civil servant.