Professor Gregory Ibeh v. Chief Chikwendu Udensi & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

This appeal emanates from the judgment of the Court of Appeal, Abuja Division, delivered on the 23rd day of December, 2022, in appeal no: CA/ABJ/CV/1345/20221 wherein the judgment of the trial court entered in favour of the appellant was set aside.

The brief facts giving rise to this appeal are that the 1st respondent as plaintiff at the trial court commenced an action vide writ of summons and statement of claim dated the 9th day of June, 2022.

Essentially, the 1st respondent sought the intervention of the court to compel the 2nd respondent to forward the 1st respondent’s name as the 2nd respondent’s candidate for the office of Governor of Abia State in the 2023 General Election scheduled by the 3rd respondent for Saturday, March 11, 2023.

According to the averments contained in the 1st respondent’s claim, prior to the commencement of hostilities between the parties, the 1st respondent alongside other persons including the appellant had expressed their interest and purchased 2nd respondent’s nomination forms to enable them become eligible, upon screening and clearance, to contest in the 2nd respondent’s primary election.

Meanwhile, acting in line with its guidelines and the applicable laws, the 2nd respondent indicated its decision to conduct election for the selection of ad hoc delegates who would in turn vote for candidates in the primary elections.

However, according to the 1st respondent, the ward congresses for election of the ad hoc delegates were replete with incidences of violence, intimidation, and kidnapping of the panel members charged with the responsibility of conducting the said ward congresses.

It was contended that the legitimate list of the ad hoc delegates is the one which emanated from the 2nd respondent’s Local Returning Officers, whose names and appointments were conveyed to the Abia State Resident Electoral Commissioner by the National Chairman of the 2nd respondent.

The 1st respondent further contended that the Primary Election Electoral Panel set up by the 2nd respondent and headed by one Echezona Etiaba, SAN, succumbed to the 4th to 6th respondents’ intimidation and refused to use the authentic list of ad hoc delegates which emanated from the Local Government Ward Congresses Returning Officers.

However, the 1st respondent alleged that three members of the 2nd respondent, purportedly co-opted by the Etiaba led panel, to assist the panel in the conduct of the primary election, proceeded to conduct the said primary election, using the authentic list of ad hoc delegates, and he emerged as the winner, and 2nd respondent’s nominated candidate for the 2023 Abia State Governorship Election.

Consequent upon forwarding the appellant’s name by the 2nd respondent to the 3rd respondent, the 1st respondent commenced the action leading to this appeal, seeking the following reliefs:

1. “A declaration that the 1st defendant is bound by the provisions of its Constitution, Electoral Guidelines for 2022 Primary Election, and its Modalities for the Conduct of APGA Ward Congresses for Election of ad hoc Delegates” in the nomination processes for the primary election to select its candidate for the Abia State Governorship 2023 Election.
2. A declaration that by combined provisions of Articles 1 and 2 of the APGA Electoral Guidelines for 2022 Primary Election as modified by the 1st defendant’s “Modalities for the Conduct of APGA Ward Congresses for Election of ad hoc Delegates” of 8th May, 2022, Article 12(11)(d) of the Constitution of the 1st defendant and section 84(5)(b) (13) of the Electoral Act, 2022, the 1st and 2nd defendants cannot constitutionally or lawfully rely on any result that did not emanate from the Ward Congresses Election conducted by duly appointed Local Returning Officers whose names and appointment were conveyed to the 2nd defendant’s Resident Electoral Commissioner Abia State by the letter of 7th May, 2022 of the National Chairman of the 1st defendant.
3. A declaration that the defendants have neither the right nor authority to use any list of ad hoc delegates for the conduct of the 1st defendant’s primary election for the selection of its candidate for the 2022 governorship primary election of Abia State other than the list of ad hoc delegates that emerged at the Ward Congresses election held on 10th May, 2022 and conducted by the duly appointed Local Government Ward Congresses Returning Officers whose names were conveyed to the 2nd defendant through the Resident Electoral Commissioner Abia State by the letter of 7th May, 2022 of the National Chairman of the 1st defendant.
4. A declaration that it is unconstitutional, illegal and unlawful for the 1st defendant to condone the use and/or place reliance on the list of ad hoc ward delegates other than the list produced from the ward congresses held on 10th May, 2022, which was conducted by the Local Government Ward Congresses Returning Officers duly appointed and conveyed by the National Chairman of the 1st defendant in his letter of 7 May, 2022 to the 2nd defendant.
5. A declaration that the 1st defendant lacks competence, vires or authority to ignore or sideline the due results of the Ward Congresses Election conducted on 12th May, 2022 for the election of its 2022 governorship candidate for Abia State to the prejudice of the plaintiff.
6. An order of setting aside the purported results of the Ward Congresses Election, the 1st defendant relied upon in forwarding the name of the 3rd defendant for the Abia State Governorship Election of 2023.
7. A declaration that the plaintiff, having been elected by majority of the lawful votes cast at the Abia State governorship primary election of the 1st defendant where the authentic list of ad hoc delegates was used to conduct the 29th May, 2022 governorship primary election, is the candidate of the 1st defendant whose name must be submitted to the 2nd defendant as the rightful candidate of the defendant for the Abja State governorship election of 2023.
8. An order of the honourable court directing the 1st defendant to forward to the 2nd defendant the name of the plaintiff as the duly nominated candidate of the 1st defendant for the Abia State governorship election of 2023.
9. An Order of Injunction restraining the 1st and 2nd defendants either by themselves, their agents, privies, servants, officers, officials, or any other person from recognising anyone other than the plaintiff as the duly nominated candidate of the 1st defendant for the 2023 Abia State governorship general election.
10. An order of Injunction restraining the 1st and 2nd defendants or any person deriving authority from or through them however and whatsoever from submitting, forwarding and/or tendering the name of any other person to the 2nd defendant and/or any authority as the governorship candidate of the 1st defendant for the Abia State Governorship 2023 general election other than the name of the plaintiff.
11. An order of injunction restraining the 2nd defendant from accepting, recognising, dealing with/or putting on the ballot paper the name of the 3rd defendant or any person other than the plaintiff as the 1st defendant’s candidate for Abia State at the 2023 governorship general election.
12. An order of injunction restraining the 3rd defendant from styling, masquerading or parading as the 1st defendant’s governorship candidate for the Abia State Governorship candidate election of 2023.”

Upon conclusion of trial, the trial court delivered judgment in the suit on the 1st day of December, 2022 wherein the lower court nullified the appellant’s election as the 2nd respondent’s nominated candidate and ordered that fresh primary elections be conducted. dissatisfied with the judgment, the appellant, 2nd, 4th and 6th respondents filed an appeal at the lower court, while the 1st respondent also cross-appealed against the same judgment.

In a judgment delivered on the 8th day of February, 2023, the lower court allowed the appeal in part and dismissed the cross-appeal. The lower court affirmed the nullification of the primary election but set aside the order made by the trial court that fresh primary elections be conducted, holding that time would not permit the conduct of such fresh primary elections in view of the provisions of section 29(1) of the Electoral Act, 2022 which provides that every political party shall not later than 180 days before the date appointed for a general election under the Act, submit to the National Electoral Commission, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primary elections conducted by the political party. This aspect of the decision again nettled the appellant who further appealed to this court, appellant filed notice of appeal on the 21st day of February, 2023.

Learned senior counsel Emeka Etiaba, SAN, leading other counsel filed the appellants brief of argument on the 21st day of February, 2023 and nominated the following eight issues for determination: