Mr. Ugwu Newman v. Dennis Nnamdi Agbo & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EMMANUEL AKOMAYE AGIM, JSC (Delivering the leading judgment)

On 21-7-2022, the 1st and 2nd respondents by an originating summons commenced suit No. FHC/ABJ/CS/1176/2022 in the Federal High Court at Abuja against the 3rd respondent as defendant claiming for:

1. A declaration of this honourable court that by the express and combined mandatory provisions of sections 29 (1, 2 & 3), 84(1), 2, 5(c), 7 & 14 of the Electoral Act, 2022 & sections 65 & 66 of the Constitution of the Federal Republic of Nigeria, the respondent is obligated to accept and publish the 1st plaintiff’s nomination forms for Member, House of Representatives (Forms EC 13D, EC 9 & EC 9D) as the 2nd plaintiff’s candidate for election as member, House of Representatives representing Igbo-Eze North/Udenu Federal Constituency of Enugu State scheduled to hold on the 25th of February, 2023, the 1st plaintiff having won the 2nd plaintiff’s primary election for the Igbo-Eze North Federal Constituency and also being qualified to contest for the said office.
2. An order of this honourable court compelling the respondent to accept and publish the 1st plaintiff’s nomination forms for Member, House of Representatives (Forms EC, 13D, EC9 & EC 9D) as the 2nd plaintiff’s Candidate for election as Member, House of Representatives representing Igbo-Eze North/ Udenu Federal Constituency of Enugu State scheduled to hold on the 25th of February, 2023.
3. Any other or further order of this honourable court as the circumstances of this case may require in the interest of justice.”

The 1st respondent herein in paragraphs 1 to 14 of his affidavit in support of the originating summons deposed to the facts forming the basis of his claim as follows:

1. “I am the 1st plaintiff in this suit and by virtue of my position, I am very conversant with the facts of this case.
2. I am a member of 2nd plaintiff (Labour Party) and my Party Membership No. is 3272. My party membership card is attached and marked as exhibit 1.
3. I purchased the 2nd plaintiff’s primary election nomination form for election as Member, House of Representatives, Igbo-Eze North/Udenu Federal Constituency for the House of Representatives election scheduled to hold on the 25th of February, 2023. My nomination form for Member, House of Representatives, Labour Party is attached and marked as exhibit 2.
4. I was the only aspirant for the position; I secured 30 votes, emerging the winner of the 2nd plaintiff’s primary election and I am the 2nd plaintiff’s candidate for the election of Member, House of Representatives, Igbo-Eze North/Udenu Federal Constituency scheduled to hold on the 25-2-2023.
5. I duly completed the respondent’s nomination form for house of representatives and the affidavit in support of personal particulars (Forms EC13D & EC9 respectively) and submitted them to the 2nd plaintiff. The acknowledged copies of my forms EC13D & EC9 are hereby attached and marked as exhibits 3a & 3b.
6. The 2nd plaintiff attempted to uphold my nomination form and affidavit in support of personal particulars (Forms EC13D & EC9 respectively) to the respondent’s nomination portal but experienced technical issues.
7. The respondent’s nomination portal is currently closed.
8. As a result, the 2nd plaintiff has been unable to submit my name and personal particular to the respondents as its candidate for the election of Member, House of Representatives, Igbo-Eze North/Udenu Federal Constituency, Enugu State.
9. I was informed by my lawyer, Oluwagbemileke Kehinde, at 72 Mississippi Street, Maitama on the 20-7-2022 that the deadline for submitting my name and particulars to the respondent is 180 days before the date appointed by the respondent for the general election.
10. The date appointed by the respondent for the general election is the 25-2-20123.
11. I am qualified to contest for Member of the House of Representatives, Igbo-Eze North/Udenu Federal Constituency and there are no factors disqualifying me from contesting for the said office.
12. I know that is the duty of the 2nd plaintiff to submit my nomination form for member, House of Representatives and the affidavit in support of personal particulars (Forms EC13D & EC9 respectively) to the respondent.
13. The respondent would not accept my nomination Form for Member, House of Representatives and the affidavit in support of personal particulars (Forms EC13D & EC9 respectively) without order of this honourable court.
14. It is in the interest of justice to grant this application and the respondent shall not be prejudiced by the grant of same.
15. I make this affidavit, conscientiously believing same to be true and in accordance with the oath acts in force.”

Because the defendant who had been served all the processes in the suit refused to appear or answer to the case, the trial court proceeded to hear the case and on 17-8-2022 delivered judgment granting all the reliefs claimed for in the originating summons. Upon becoming aware of this judgment, the appellant herein, who was not made a party to the suit, by a motion on notice filed on 20-10-2022 applied for leave of the trial court to apply to set aside its said judgment of 17-8-2022 and an order setting aside the said judgment. In the affidavit in support of the application he deposed that:

1. “That I am a legal practitioner.
2. I am a legal practitioner and a registered member of the 2nd plaintiff/respondent – Labour Party in suit No: FHC/ABJ/CS/1176/2022; suit No: FHC/EN/CS/153/2022.
3. I am conversant with the facts of this case.
4. The 2nd plaintiff/respondent a registered Political Party issued to me a membership card, herein marked as exhibit 1.
5. The 2nd plaintiff/respondent had on the 5-6-2022 conducted its Federal Constituency Primary for the nomination of their flag bearer for Igbo-Eze North/Udenu Constituency, House of Representatives, among others in Enugu State.
6. The Igbo-Eze North/Udenu Constituency Primary was monitored by the 3rd respondent – Independent National Electoral Commission on the 5-6-2022 at the Obollo old High Court Obollo Afor Udenu Local Government Area of Enugu State, venue.
7. During the Igbo-Eze North/Udenu Constituency Primary forty-three (43) delegates were accredited and I was the only aspirant who contested and was duly elected and emerged the winner by Polling 41 votes.
8. 3rd respondent having monitored the 2nd plaintiff/respondent’s primary of Igbo-Eze North/Udenu Federal Constituency, vide its letter dated the 10th day of June, 2022 headed:

“Summary Report on Labour Party (LP) Federal Constituency Primaries held in Enugu State held On 6-5-2022”, here marked as exhibit “2”, which emanated from the 3rd respondent’s Enugu State office addressed to the National Chairman of the 3rd respondent – Independent National Electoral Commission, states, inter alia:

“Summary Report on Labour Party (LP) Federal Constituency Primaries held in Enugu State held on 6-5-2022.”

Sequel to the notifications received from EPM department of INEC Abuja on the primaries of political parties for the nomination of their candidates for 2023 general election, INEC Enugu office directed the staff to monitor the LP primary election for their Federal Constituencies flagbearers nomination in Enugu.

INEC staff monitored the primaries as contained in the attached report from the HOD EPM. I wish to attach the summary report as well as completed checklist and field report for your consideration.

Sir, accept the assurances of my highest regards.

Emeka Ononamadu.

Resident Electoral Commissioner.

INEC – Enugu

9. The summary report attached to exhibit 2, particularly at paragraph 5 of page 2, reads:

“5 Igbo-Eze North/Udenu Constituency: The event was held at Obollo Old High Court Obollo Afor Udenu LGA, it started by 2:00pm. A total number of forty-three (43) delegates were accredited for the primary election. Only one aspirant contested in the person of Ugwu Newman he was elected through open ballot system where he emerged the winner by polling a total number of 41 votes. The outcome was generally accepted.”

10. Exhibit 2 with the attached summary report was duly received by the National Chairman of the 3rd respondent and by the 3rd respondent.
11. The only primary election conducted by the 2nd plaintiff/ respondent for the nomination or election of its flagbearer for Igbo-Eze North/Udenu Federal Constituency, House of Representatives, evident in exhibit 2 was conducted on the 5-6-2022. The 1st plaintiff/ respondent did not participate in the primary, and never participated in any primary election of the 2nd plaintiff/respondent, rather participated in the People’s Democratic Party (PDP) Primary election for the nomination of People Democratic Party (PDP) flagbearer for Igbo-Eze North/Udenu Federal Constituency, House of Representatives held on the 22-5-2022 and monitored by the 3rd respondent. The 1st plaintiff/respondent scored zero votes in the Peoples Democratic Party (PDP) primary election won by Hon. Simon Atigwe.
12. The People Democratic Party Primary election report for Igbo-Eze North/Udenu where the 1st plaintiff/respondent name featured and recorded as number five (5) is here attached and marked as exhibit “3”, while the 3rd respondent’s report headed “A report of Igbo-Eze North/Udenu Federal Constituency Primary conducted by Peoples Democratic Party (PDP) at Udenu Local Government Council hall on 22-5-2022”, is here marked as exhibit “4”.
13. The 1st plaintiff/respondent having lost the People’s Democratic Party (PDP) Primary election, had on the 21-7-2022 commenced vide originating summons, here marked as exhibit 5 suit No: FHC/ABJ/CS/1176/2022; suit No: FHC/EN/CS/153/2022, in connivance with the 2nd plaintiff/respondent participated in the 2nd plaintiff/respondent primary election for Igbo-Eze North/Udenu Federal Constituency, house of representatives, thus sought for the reliefs.
14. A declaration of this honourable court that by the express and combined mandatory provisions of sections 29 (1, 2 & 3 ), 84 (1, 2, 5(c), 7 & 14 of the Electoral Act, 2022, & sections 65 & 66 of the Constitution of the Federal Republic of Nigeria, the respondent is obligation to accept and publish the 1st plaintiff’s nomination forms for member, house of representatives (forms EC 13D, EC9 & EC 9D) as the 2nd plaintiff’s candidate for election as Member, House of Representatives representing Igbo-Eze North/Udenu Federal Constituency of Enugu State scheduled to hold on the 25-2-2023, the 1st plaintiff having won the 2nd plaintiff’s primary election for the Igbo-Eze North Federal constituency and also being qualified to contest for the said office.
15. An order of this honourable court compelling the respondent to accept and publish the 1st plaintiff’s nomination forms for member, house of representatives (Form EC 13D, EC 9D) as the 2nd plaintiff’s candidate for election as member, house of representatives representing Igbo-Eze North/ Udenu Federal Constituency of Enugu State scheduled to hold on the 25th of Federal, 2023.
16. Any other further order of this honourable court as the circumstances of this may require in the interest of justice”.
17. In support of the originating summons exhibit 5 is the affidavit deposed to by 1st plaintiff/respondent, where he particularly at paragraph 4 of the affidavit in support misrepresented to the honourable court, deceitfully and fraudulent stating that he was a member of the Labour Party and that he was a member of the Labour Party and that he “was the only aspirant for the position” and candidate of the Labour Party for Igbo-Eze North/Udenu Federal Constituency, House of Representatives, and that he “secured 30 votes, emerging the winner of the 2nd plaintiff’s for the election and I am the 2nd plaintiff’s candidate for the election of Member, House of Representatives, Igbo-Eze North/Udenu Federal Constituency scheduled to hold on the 25th of Federal, 2023.

It was on the basis of the misrepresentations, deceit and fraud by the plaintiffs that misled the honourable court to enter judgment in the suit exhibit 5 to the plaintiffs that misled the honourable court to enter judgment in the suit exhibit 5 to the plaintiff’s favour. The judgment is here marked exhibit “6.”: