Rt. Honourable Ekperikpe Ekpo V. Independent National Electoral Commission & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the leading Judgment)

This appeal is against the Judgment of the Federal High Court, Uyo. The Appellant was a candidate in the People’s Democratic Party primary election for the Ikot Ekpene Senatorial position held on 7th January, 2011. He alleged that the said primary election did not hold as lawfully provided; and, as plaintiff, he commenced, by way of originating Summons, suit No FHC/ABJ/CS/123/2011 of Federal High Court, Abuja. The matter was subsequently transferred to Federal High Court Uyo, where it became FHC/UY/CS/139/2011. The Appellant sought the determination of the following questions:

1. Whether by virtue of the provisions of section 87 (3), (9) and (10) of the Electoral Act 2010, Article 17.1 the Peoples Democratic Party Constitution 2009 (as amended) and the provisions of Articles Part v 24 to 33 of the Electoral Guidelines for Party Elections 2010 of the Peoples Democratic Party (hereinafter referred to EGPE) the Applicant herein was not legally entitled to participate in the Senatorial Election Primaries for Ikot Ekpene Senatorial District held on Friday, 7th January 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State.
2. Whether by virtue of the Provisional Clearance certificate with number 0000593 dated 31-12-2010 signed by the Chairman and Secretary of the Screening Committee respectively, the Plaintiff herein was not entitled to exercise his right to participate in the Ikot Ekpene Senatorial District Election Primaries in Akwa Ibom State as guaranteed by Article 27 (V) of the Electoral Guidelines for Primary Elections 2010 of the PDP.
3. Whether in view of prayers 1 and 2 above, the 2nd to 3rd defendants were lawfully entitled to EXCLUDE the plaintiff from participating in the said Senatorial Election Primaries in Akwa Ibom State.
4. Whether by virtue of prayers 1, 2 and 3 above, the Senatorial Primary Election purportedly held on 7th January 2011 can be said to have satisfied the requirement of Part V of EGPE 2010 to merit validity.

And upon the determination of these questions, the Appellant sought the following reliefs:

1. A DECLARATION that the Senatorial Election Primaries of the PDP in Akwa Ibom State purportedly held on 7th January 2011 at Ikot Ekpene Township Stadium was illegal, null, void and of no effect whatsoever because the Plaintiff herein being an aspirant was legally entitled to participate therein, was UNLAWFULLY EXCLUDED completely from the process thereby depriving him of the right to be voted for by the delegates who supported him.
2. AN ORDER setting aside the Senatorial Election Primaries for Ikot Ekpene Senatorial District of Akwa Ibom State held on 7th January 2011 at Ikot Ekpene Township Stadium.
3. AN ORDER OF PERPETUAL INJUCTION restraining the 2nd defendants from forwarding the name of the purported Senatorial Primary Election for Akwa Ibom State allegedly held on Friday, 7th January 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State pending the determination of the substantive suit.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant from receiving, accepting or in any way acting upon any nomination of any person, particularly the 3rd defendant herein purportedly elected at the aforementioned primaries pending the determination of the substantive suit.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd defendant from parading himself as the duly nominated candidate and making, taking, continuing or resuming any steps, attempts, arrangement and preparations to undertake or carry out any function, task or act pursuant to the result of the aforementioned Primaries pending the determination of the substantive suit.
6. AN ORDER nullifying all acts, tasks and, function purportedly performed during and after 7th January 2011 by the 3rd defendant pursuant to the results of the purported primaries aforementioned.
7. AN ORDER compelling the 2nd defendant herein to comply with section 87 (3), of the Electoral Act 2010, Part V. Articles 24 to 33 of the EGPE.
8. AN ORDER compelling the 1st defendant herein to comply with section 87 (9) of the Electoral Act 2010.
9. Such further Order or other Orders as this Honourable Court may deem fit to make in the circumstance.

In the support of the originating summons was an affidavit deposed to by the Appellant. The 2nd respondent filed a counter affidavit to the originating summons. The 3rd Respondent filed a Notice of Preliminary Objection, and a counter affidavit to the originating summons. The 2nd Respondent had identified with the preliminary objection, while the Appellant reacted to it and also filed further and better affidavit in support of the originating summons. The originating summons and the preliminary objection were argued together, after which the learned trial trudge, in a considered Judgment struck out the suit of the Appellant, concluding as follows:

“The 1st and 2nd Defendants have averred that 3rd Defendant won the primary election. That primary election was free and fair. This averment cannot be challenged even by plaintiff, because by its (sic) own averment he left the venue of the primary elections for safety. He was therefore not present when primary elections were concluded. It then follows that the allegation of non compliance with the provisions of the electoral law and guidelines of the 2nd Defendant is of no moment.

Consequently, in as much as the Plaintiff left venue of primary election before the election took place, did not deny the averments of 1st and 2nd Defendants that election took place, that he Plaintiff and other aspirant stepped down for 3rd Defendant etc and the 3rd Defendant is the winner of the election by Exhibit C and Exhibit A annexed to Plaintiffs Counter affidavit and 2nd Defendant’s counter to Originating Summons respectively, this suit is improper thus robbing this Court of its jurisdiction. Under Section 138 of the Electoral Act, unlawful exclusion is one of the grounds upon which an election may be questioned.

The Plaintiff complains of unlawful exclusion from participating in the senatorial elections. This court lacks the jurisdiction to grant plaintiff its reliefs. The appropriate Court is the election tribunal.

Accordingly, suit is strike (sic) out for lack of jurisdiction.”

The trial court then made the following orders:

1. That this court lacks the jurisdiction to grant plaintiff’s relief.
2. That the appropriate Court is the Election Tribunal.
3. That suit is accordingly struck out for lack of jurisdiction.

The Appellant, dissatisfied, filed a Notice of Appeal in which he raised 5 Grounds of appeal, and sought the following reliefs:

1. To allow the Appeal.
2. To set aside the entire decision of the Trial Court; and,
3. To enter judgment in favour of the Appellant in the Court below.

The Appellant’s Brief of Argument was filed on 1/11/2011 by J.O. Asoluka, Esq. 1st Respondent’s Brief was filed by Jacob Akpong, Esq., on 22/2/2012 but deemed on 15/3/2012. 2nd Respondent’s Brief was filed by Da. David Okokon, Esq., on 22/2/2012 but deemed on 15/3/2012. 3rd Respondent’s Brief was filed by Samuel Ikpo, Esq., on 15/2/2012 but deemed on 22/2/2012. These Briefs were adopted by respective Counsel on 13/2/2013.

For the Appellant, 4 Issues were formulated for determination as follows:

ISSUE ONE

a. Whether the Learned Trial Court was right in declining jurisdiction to grant the reliefs sought by the plaintiff when the plaintiff’s case is a pre-election matter brought in accordance with the provision of section 87 (1) (2) (3) (9) (10) of the Electoral Act 2010 as amended and the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party. (GROUNDS ONE AND TWO).