Senator Effiong Bob V. Chief Imeh Albert Akpan & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

The 1st and 2nd Respondents (as 1st and 2nd Plaintiffs) commenced in the Federal High Court an action by Originating Summons against (i) Independent National Electoral Commission; (ii) Prof. Maurice Iwu; and (iii) Senator Effiong Bob. The questions posed for the determination of the Federal High Court (hereinafter simply referred to as “the lower court”) are as follows: –

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

2. Whether as a member of the Peoples Democratic Party and having contested the primaries of the said Party seeking nomination as 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 Democratic 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 directive, 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 (sic) to the several

representations made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that 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 regard 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 East 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 (sic) 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 defendants 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.”

The reliefs which the plaintiffs seek in the light of the answers to the questions set out hereinbefore are: –

“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 the 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 Elections 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’s name as the People Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the forth-coming 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 the Akwa Ibom North East Senatorial District in the said election.
6. An order of perpetual injunction restraining the 1st and 2nd defendants 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 paper for the forthcoming 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.”

The case of the plaintiffs (i.e. 1st and 2nd Respondents herein) having regard to the depositions in the supporting affidavit to the Originating Summons and Exhibits attached thereto, put briefly, is that the 1st Plaintiff (1st Respondent) was the rightful candidate of the Peoples Democratic Party (hereinafter simply referred to as “the PDP”) to represent Akwa Ibom North East Senatorial District in the April, 2007 General Elections. The claim of the Plaintiffs in this regard is predicated on the fact that the 1st Plaintiff not only won the party’s primaries which took place on or about the 4th – 6th December, 2006 but also that consequent to his victory at the said primaries, the PDP issued him with a Certificate of Returns and forwarded his name to the 1st Defendant (now 3rd Respondent) as its candidate for the election into the Senate. Exhibits “E”, “F” and “G” were relied upon. The Plaintiffs also claimed that at the instance of the PDP, the 1st Plaintiff was subsequently invited for screening by the 1st Defendant and that the said 1st Defendant after screening the 1st Plaintiff on 21/2/2007 advised him that his name (as the candidate representing the PDP in Akwa Ibom North East Senatorial Constituency) had been included in the list of candidates for the National Assembly elections in the April, 2007 General Elections. The Plaintiffs equally claimed that as a follow up to his Party’s letter dated 5/2/2007 the Party National Chairman personally addressed another letter to the 1st and 2nd Defendants (now 3rd and 4th Respondents) insisting that the 1st Plaintiff was the PDP’S candidate for the election and relied on Exhibit “H” in this regard. It was therefore a surprise to the Plaintiffs that the 1st and 2nd Defendants unilaterally removed the 1st Plaintiff’s name from the list of candidates for the National Assembly election and in a strange manner replaced it with the name of the 3rd Defendant.

The 3rd Defendant (now Appellant) in the counter affidavit he filed in opposition to the supporting affidavit of the Originating Summons, claimed that right from the beginning, he was and had always been the PDP’S candidate for the election into the National Assembly to represent Akwa Ibom North East Senatorial District having been so returned and his name duly forwarded to INEC. The 3rd Defendant claimed to the effect that the primaries of 4/12/2006 was marred by various acts of irregularity, violence and thuggery unleashed by the 1st Plaintiff and that upon his (i.e. 3rd Defendant’s) complaint, the PDP’S appeal machinery held the complaints proved. That the exercise was nullified and the National Chairman and National Secretary respectively refused to authenticate the outcome of the primaries and these officers returned him as the Party’s candidate for the election and forwarded his name to the 1st Defendant (i.e. 3rd Respondent) as the Party’s flag bearer at the April, 2007 elections for the Akwa Ibom North East Senatorial District together with the names of other nominated candidates from Akwa Ibom State. The 3rd Defendant relied on the full list candidates from Akwa Ibom State dated 21/12/2006 (i.e. Exhibit “EDB 1”) signed by the National Chairman and National Secretary of the PDP respectively in this regard.

The 3rd Defendant claimed that the PDP had never been equivocal about his candidature and at no time under the Electoral Act 2006, replaced or sought to replace him as the Party’s candidate. That on 14th March, 2007 the 1st Defendant (i.e. 3rd Respondent) published his name in the final list for the election in compliance with the Electoral Act, 2006 and in this regard relied on Exhibit “EDB 3”.

The Plaintiffs reacted to the counter affidavit of the 3rd Defendant by filing a further and better affidavit Sworn to on 28/3/2007. In the process, they denied the allegation of thuggery and violence which the 3rd Defendant (now Appellant) alleged caused the annulment of the primaries. They claimed that the said primaries which produced the 1st Plaintiff as the PDP Senatorial flag bearer for Akwa Ibom North East Senatorial District was free and fair and that the result was certified as the best election result where an incumbent (i.e. 3rd Defendant) was defeated at the first ballot with over 60% of the votes cast.

According to the Plaintiffs, the allegation of thuggery and violence raised by the 3rd Defendant was dismissed by the National Secretariat “constituted appeal panel” as unfounded and reliance was placed on Exhibit “J” in this regard. The Plaintiffs said that no Certificate of Returns was issued in favour of the 3rd Defendant by the PDP Akwa Ibom State electoral panel or anybody and that the 3rd Defendant smuggled his name into the list dated 21st December, 2006 by misrepresentation of facts. That when the fact that the 3rd Defendant who lost woefully at the party primaries had smuggled his name into the list was disclosed to the Party Secretariat, the party promptly informed the 1st Defendant (i.e. 3rd Respondent) to correct the anomaly and that this was done within the time “accepted” by the Electoral Act to correct such anomaly. The Plaintiffs denied the existence of a letter dated 12th February, 2007 attached to the 3rd Defendant’s counter affidavit as Exhibit EDB4. The Plaintiffs claimed that the 1st Defendant (i.e. 3rd Respondent) has no option when a party “substitutes” a candidate for cogent and verifiable reason as was the case in his situation vis-a-vis the person of the 3rd Defendant who after losing the primary election woefully smuggled his name into the list dated 21/12/2006.

The 1st and 2nd Defendants (now 3rd and 4th Respondents) in their counter affidavit in the main, denied the claim of the Plaintiffs that the name of the 1st Plaintiff was ever forwarded to INEC by the PDP as that Party’s candidate for election into the Senate to represent Akwa Ibom North East Senatorial District. They were emphatic that it was the name of the 3rd Defendant (i.e. Appellant) that was submitted by the PDP as its candidate for the Akwa Ibom North East Senatorial District in the 2007 General elections and relied in this regard on Exhibits “INEC A” and “INEC B”. While these Defendants (Le. 3rd and 4th Respondents) admitted being in receipt of Form E.C. 4B (V) – nomination form for a member of the Senate and a copy of which was attached to their counter affidavit as Exhibit “INEC C”, they not only claimed that the 1st Defendant (Le. 3rd Respondent) never accepted the substitution of the 3rd Defendant by any person whatsoever but also that the said 3rd Defendant was the authentic and validly accepted candidate of the PDP in the final list of nominated candidates released by the 1st Defendant (i.e.. 3rd Respondent). They relied on Exhibit “INEC D” attached to the counter affidavit in this regard.

The 3rd Defendant equally filed a further and better affidavit in opposition to the Originating Summons on 29/3/2007 and the Plaintiffs again filed a 2nd further and better affidavit in support of the Originating Summons in reaction to this. Parties to the suit also filed written addresses and the Plaintiffs filed a Reply to the written address of the 3rd Defendant. Parties adopted their respective written addresses on 2/4/2007 and judgment was on the day reserved till 18/4/2007. In the judgment it delivered on 18/4/2007, the lower court dwelling on the issue that the case was not commenced by “due process” held to the effect that it was, as the matter before it basically dealt with documents, to wit: “which of the correspondences is the 1st Defendant bound by” and held that the matter could be conveniently determined by Originating Summons. Furthermore the lower court having identified the two questions for determination in the suit to be: –

“(1) who amongst the 1st Plaintiffs (sic) and the 3rd Defendant is the authentic candidate for the Peoples Democratic Party for the Senatorial election in question; and