Senator Effiong Bob V. Chief Imeh Albert Akpan & Ors. (2007)

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MUHAMMAD, J.C.A.

The applicants herein i.e. Chief Imeh Albert Akpan and Otu Ita Toyo took out an originating summons before the Federal High Court, Abuja for the determination of the following questions:-

“1. Whether having regard to the clear provisions of Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff is qualified to contest election into the Senate of the Federal Republic of Nigeria.

2. Whether as a member of the People Democratic Party and having contested the primaries of the said party seeking nominations the party’s candidate for the April 2007 general elections in respect of Akwa Ibom North East Senatorial district, and having polled over 60% of the total votes cast at the said primaries which led to his being declared as the winner of the said primary election and consequently issued with a certificate of return by the peoples party with a further correspondence from the Peoples Democratic Party directing the 1st and 2nd defendants to list the 1st plaintiff as Its candidate for the National Assembly Elections in respect of Akwa Ibom North East Senatorial District Constituency, the 1st defendant is at liberty not to enforce the directive of the party to wit: listing him i.e. the 1st plaintiff as the party’s senatorial candidate in Akwa Ibom North East for the April, 2007 General Elections, having regard to the relevant provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether in the face of the several representations/correspondences made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the name of the 1st plaintiff be placed on the list of the National Assembly candidates with the 1st defendant, as the Peoples Democratic Party’s candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Elections, the 1st defendant is at liberty to decline the enforcement of such directives, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
4. Whether in the absence of any positive explanation from the 1st defendant, having regards to the several representations made by the Peoples Democratic Party on behalf of the 1st plaintiff’s name be placed on the list of National Assembly candidates, the 1st defendant is at liberty to remove the name of the 1st plaintiff unilaterally after having screened him and verified his credentials, having regards to the relevant provisions of the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
5. Whether the omission, substitution or removal of the name of the 1st plaintiff by the 1st defendant from the list of National Assembly candidates dated 15th March, 2007 to contest election into the senate of the Federal Republic of Nigeria, particularly as representing Akwa Ibom North Senatorial District in the April, 2007 General Elections does not constitute a gross violation of the 1st plaintiff’s constitutional right to fair hearing, and by extension his right to contest election into the Senate of the Federal Republic of Nigeria as a Nigerian citizen, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. Whether in the light of the fact that the Peoples Democratic Party had submitted the name of the 1st plaintiff for substitution with the name of the 3rd defendant by several correspondences, the 1st and 2nd defendant can validly decline such substitution, having regard to the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
7. Whether in view of the clear provisions of the Electoral Act, 2006, the 1st and 2nd defendant are in a position to decline to act upon the representation of a political party vis-a-vis its choice of candidate to contest for an office in the April, 2007 General Elections, more so when the candidate is not otherwise disqualified.

In the light of the foregoing, and the answers there to the plaintiffs seek the following reliefs:

“1. A declaration that the omission of the name of the 1st plaintiff by the 1st and 2nd defendants in the list of candidates for National Assembly General Election dated 15th March, 2007 particularly as it affects Akwa Ibom North East Senatorial District constitutes a gross violation of the 1st plaintiff’s Constitutional rights.

2. A declaration that the refusal of the 1st defendant to comply with the several directives issued by the 1st plaintiff’s political party i.e. peoples Democratic Party to the effect that the 1st plaintiff’s name be listed as its candidate for the Akwa Ibom North East Senatorial District in the April 2007 General Election constitutes a wrongful and unlawful removal/substitution or exchange of a validly nominated candidate i.e. the 1st plaintiff.
3. A declaration that the inclusion of the 3rd defendant as the Peoples Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the forthcoming April, 2007 General Election is wrongful as it is against the position, wishes and aspirations of the Peoples Democratic Party.
4. An order setting aside the inclusion of the name of the 3rd defendant in the list of the National Assembly candidates for the April 2007 General Election for Akwa Ibom North East Senatorial District.
5. An order of mandatory injunction directing the 1st and 2nd defendants to forth with place the name of the 1st plaintiff on the list of candidates for the April 2007 National Assembly General Elections as the candidate representing the Peoples Democratic Party in Akwa Ibom North East Senatorial District in the said election.
6. An order of perpetual injunction restraining the 1st and 2nd defendant from further removing the candidature of the 1st plaintiff as the candidate representing Akwa Ibom North East Senatorial District on the platform of the Peoples Democratic Party in the said election.
7. An order of perpetual injunction restraining the 1st and 2nd defendants from placing the name of the 3rd defendant on the ballot for the forth coming election into the National Assembly as the candidate representing Akwa Ibom North East constituency on the platform of the Peoples Democratic Party in the said election.

After considering the affidavit evidence and the written addresses filed by the parties, the learned trial judge held:

“Consequently, I find and hold that the name of the 1st plaintiff was properly substituted with, in place of the 3rd Defendant.

Where a substitute is properly made by the authority of all the recent cases the 1st Defendant has only one duty and that is to comply. In this light, the 1st Defendant is hereby directed to include the name of the 1st plaintiff as the candidate of the party in place of that of the defendant.

I therefore declare as per relief’s 1, 2, & 3 and order as per reliefs 4, 5, 6, & 7.”

Aggrieved by this decision, the 3rd defendant, (hereinafter called the “appellant”) appealed to this court. The Notice of Appeal contained two grounds of appeal. Before the appeal could be heard, the applicants filed an application praying for the following orders:-

“1. An order striking out the Notice of Appeal in this appeal as the court now lacks the jurisdiction to entertain all the grounds of appeal contain therein.

2. And for such further order(s) as this honourable court may deem fit to make in the circumstances.”

The grounds of the application are: –

“1. The jurisdiction of the court of Appeal to entertain this appeal has now been ousted by the combined provisions of section 285(1)(a) of the 1999 Constitution, sections 140 and 164 of the Electoral Act, 2006 as well as section 1 to the First Schedule of the Electoral Act.

2. The issues before the court are now academic. Indeed there is no live issue validly before this court.

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