Mr. Ugochukwu Ignatius Anagwu V. Independent National Electoral Commission & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the Federal High Court, Enugu determined by Hon. Justice A.O. Faji but delivered on 15th May, 2008 by Hon. Justice P.F. Olayiwola, consequent upon the transfer of the learned trial Judge A.O. Faji J. to Federal High Court Yenagoa.

The lower court in its judgment dismissed the preliminary objection raised by the Respondents’ against the propriety of the suit and the main suit.

The Appellant commenced the suit at the Lower Court by an Amended Originating Summons dated. 29th November, 2007, the Appellant sought six (6) Declaratory reliefs and two orders which are adumbrated as follows:-

1. A DECLARATION that the 1st Defendants 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 is view section 36 of the 1999 Constitution the 1st Defendant CANNOT fairly and constitutionally determine the cogency and verifiability of substitution of nominated candidate without some form of notice to the candidate or hearing or some form of inquiry notice to the candidate or hearing or some form of inquiry from or input by the affected candidate.
5. A DECLARATION that the legislature innovation introduced for the first time by section 34 of the Electoral

Act is aimed at deepening and strengthening democracy in Nigeria in relation to substitution of nominated candidate in an election.

6. A DECLARATION that the substitution of the plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Nnewi South I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary unlawful, illegal, unconstitutional null and void.
7. AN ORDER setting aside the purported substitution, same being in excess of the statutory powers of 1st Defendant, in abuse of power breach of duty to act fairly, unreasonable, legal, unconstitutional, null and void.
8. AN ORDER OF MANDATORY INJUNCTION directing the 1st Defendant to restore the plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Nnewi South I State Constituency of Anambra State’.

The Appellant from the several affidavit filed in support of the originating summons had claimed that he was the person duly nominated, verified, cleared and his name published as the candidate of the People Democratic Party (PDP) for Nnewi South Constituency of Anambra State having won the primary election conducted by the

2nd Respondent.

The Appellant alleged that sometimes on 22nd of February, 2007, he received information that his name has been substituted by the 2nd Respondent and upon a visit to the 1st Defendants headquarter at Abuja; he confirmed that it was indeed the truth. The Appellant at the Lower Court claimed that since elections were scheduled to hold on the 14th of April 2007, the said substitution was not made within the 60 days period allowed by Section 34 of the Electoral Act 2006 and that no cogent and verifiable reason was furnished for his substitution.

The Appellant on the 4th December, 2007 again filed a further affidavit in which he deposed that the election complained about has indeed been held on the 28th of April, 2007 and, that the 3rd Respondent was returned as the winner on the platform of the 2nd Respondent.

In a counter-affidavit filed on the 14th December, 2007, in opposition to the originating summons, the 1st Respondent contended that the substitution was effected within the stipulated time and in substantial compliance with the Electoral Act, 2006.

The 2nd and 3rd Respondents as Defendants in the lower court filed a Joint Counter Affidavit on the 13th of December, 2007 in opposition to the originating summons in which they contended that the 2nd Defendant acted well within its powers on the issue of nomination and substitution of the party’s candidate for the constituency. That the plaintiff Appellant’s name was never displayed as alleged and that Exhibit A annexed to the originating summons was not an authentic document as same does not bear the stamp or signature of the National Chairman and Secretary of the party.

They further contended that upon the verification of petition against the primaries, hearing from the parties involved and after taking into account many factors which will improve the chances of the party at the General election, the 2nd Respondent effected the substitution of the Appellant by a letter of 5th February, 2007 delivered to the 1st Respondent.

Upon the receipt of the said letter the 1st Defendant requested for additional clarification, which was embodied in another letter of the 2nd Respondent dated 13th February, 2007.

The 2nd and 3rd Respondents contended that the 2nd Defendant duly supplied cogent and verifiable reasons for substitution, which was accepted by the 1st Respondent.