GEORGE ONYEABOR IGBO v. ANTHONY OBINNA ABILI & ORS
(2019)LCN/13400(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/A/370/2019
RATIO
ELECTION PETITION: PROVISION OF SECTION 87(9) OF THE ELECTORAL ACT 2010
Section 87(9) of the Electoral Act 2010 (as amended) provides thus:
“(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination-of a candidate of a political party of election, may apply to the Federal High Court or the High Court of a State or FCT, for redress”.
By virtue of the above provision, where the complaint of an aspirant is on failure to comply with the Electoral Act, Constitution or Guidelines of the Party, he can always resort to the Court for adjudication.PER ADAMU JAURO, J.C.A.
THE POSITION OF PARTY PRIMARIES IN ELECTION PETITION UNDER SECTION 87(9) OF THE ELECTORAL ACT 2010
Hitherto the amendment to the Electoral Act, the conduct of party primaries was regarded a domestic affair of political parties. SeeOnuoha Vs Okafor (1983) 2 SCNLR 244; Dalhatu Vs Turaki (2003) 15 NWLR (part 843) 310. However by dint of Section 87 (9) of the Electoral Act 2010 (as amended) an aspirant can now ventilate his grievances in Court, where his complaints border on infraction of the Electoral Act, Constitution or Guidelines of the party. See Ukachukwu Vs PDP (2014) 17 NWLR (part 1435) 134 at 203. Consequent upon the foregoing issue one is resolved against the appellant.PER ADAMU JAURO, J.C.A. PER ADAMU JAURO, J.C.A.
JURISDICTION: A COURT LACKS JURISDICTION OVER MERE ACADEMIC MATTERS
A Court lacks jurisdiction to determine any case that is a mere academic exercise. See Adeogun & Ors Vs Fashogbon & ors (2008) 5- 6 SC (part 1) 23, Global Transport Oceanico SA & Anor Vs Free Enterprises Nig. Ltd (2001) 2 SC 154, Nwobosi Vs ACB Ltd (1995) 6 NWLR (part 404) 658 at 681, Olafisoye Vs FRN (2004) 4 NWLR (part 864) 580 at 654 -655, Mamman Vs Salaudeen (2005) 18 NWLR (part 958) 478 at 500, Aladinma Medicare Ltd Vs Reg. Trustees of Overcomers Christian Mission & Ors (2012) LPELR 8276 (sc).PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
GEORGE ONYEABOR IGBO Appellant(s)
AND
1. ANTHONY OBINNA ABILI
2. PEOPLE DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Federal High Court, Abuja Division delivered on 20th March,20 2019 by Hon. Justice A. R. Mohammed in suit No. FHC/ABJ/CS/1158/2018.
The facts culminating in this appeal as can be deciphered from the affidavits and counter affidavits, for and against the Originating Summons can be summarized as follows: The appellant as 3rd defendant, the 1st Respondent then plaintiff and two others namely; Dr. Barrister Solomon Duru and Iheanyi Nnanna Okwara contested primary elections under the platform of Peoples Democratic Party (PDP, for short). The primary election was for House of Representatives and was conducted on 5th and 6th October, 2018 for the Ideato North/Ideato South Federal Constituency of Imo State. Upon the conclusion of the election, the Electoral Committee declared the result as follows:
1. Anthony Obinna Abili 84 votes
2. Iheanyi Nnanna Okwara 36 votes
3. Dr. (Barr.) Solomon Duru 40 votes
4. George Onyeabor Igbor 82 votes
?The aforementioned results according to the 1st Respondent was
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contained in Form PD004/NA attached as exhibit AA6, while the report of the Electoral Committee was attached and marked as exhibit AA7.
Dissatisfied with the results released by the Electoral Committee the appellant approached the Electoral Appeal Panel of the 2nd Respondent P.D.P., challenging the results of the Primary Election. The Electoral Appeal Panel heard the petition and recounted votes. At the end of its assignment the Electoral Appeal Panel declared the appellant as the winner with 86 votes, and the 1st Respondent was said to have polled 81 votes. The report of the Electoral Appeal Panel and its addendum are contained in exhibits AA8 and AA9. Hence the name of the appellant, was forwarded to the 3rd Respondent by the 2nd Respondent.
Aggrieved by the new trend of development in the outcome of the Report of the Electoral Appeal Panel, the 1st Respondent as plaintiff, challenged same vide an Originating Summons in the trial Court (lower Court, for short). The Originating Summons is dated and filed on 17th October, 2018 and sought for the determination of the following questions:
1. “Whether by the provisions of Section 87(1), (2), (3),
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(4), (c) of the Electoral Act 2010 (As Amended) and paragraphs 17, 18, 19, 20 and 21 of the Peoples Democratic Party’s Electoral Guidelines for Primary Election it is the aspirant who polled the highest number of votes cast and declared retuned by the returning officer after the primary election that becomes the candidate of the party for the Ideato North/ldeato South Federal Constituency of Imo State.
2. Whether by the provisions of Section 87(1), (2), (3) and (4) (c) ii of the Electoral Act 2010 (As Amended) and paragraphs 17, 18, 19, 20, 21 and 48 of the Peoples Democratic Party’s Electoral Guidelines for Primary Elections, the Peoples Democratic Party is bound to submit the name of the aspirant who polled the highest number of votes and declared winner of the primary election as the candidate of the party for the Ideato North/Ideato South Federal Constituency of Imo State.
3. Whether in view of paragraphs 22 and 49 of the Peoples Democratic Party’s Electoral Guidelines for Primary Elections the Peoples Democratic Party can refuse to submit to INEC or withdraw or substitute the name of a nominated candidate it has submitted to INEC without the
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death, withdrawal or incapacitation of such candidate.
4. Whether in view of Section 87 (4) (C) ii of the Electoral Act (2010) As Amended the Independent National Electoral Commission (INEC) can substitute a candidate whose name was submitted to it by a political party without the death withdrawal or incapacitation of such a candidate.
5. Whether going by the provisions of paragraph 47 (e) of the Peoples Democratic Party Electoral Guidelines for Primary Elections, the National Assembly Electoral Appeal Panel can decide any petition presented to it against an aspirant without notifying the said aspirant of the petition against him and giving him opportunity to present his own side of the case.
6. Whether in view of Section 36 (1) of the 1999 Constitution and paragraph 47 (e) of the PDP’s Electoral Guidelines for Primary elections, the National Assembly Electoral Appeal Panel for Imo State, the Panel was right when it entertained and heard a petition against the plaintiff and took decisions on same, without informing him of the petition, or giving him opportunity to present his case and also refused to communicate to him their decision to recount
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the votes cast at the election, before recounting the votes.
7. Whether the purported recount of votes cast in the election could stand when the said recount was not done by the Electoral Committee and in the presence of the plaintiff or his agent.
8. Whether by the Guidelines of the PDP for the Primary Election, the National Assembly Electoral Appeal Panel, on its own and without the National Working Committee has power to nullify a return already made after a primary election”.
The 1st Respondent claimed for the following reliefs in the Originating Summons, namely:
1. “A Declaration of this Honourable Court that by the Provisions of Section 87 (1), (2), (3), (4), (c) of the Electoral Act 2010 (As Amended) and paragraphs 17, 18, 19, 20 and 21 of the People Democratic Party’s Electoral Guidelines for Primary Election, it is the plaintiff that scored the highest number of votes in the primary election of PDP conducted in Ideato North/Ideato South Federal Constituency of Imo State and remains the candidate of the party for the 2019 National Assembly elections in the Constituency.
2. A Declaration of this Honourable Court that going by
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Section 87 (1), (2), (3), (4), (c) (ii) of the Electoral Act 2010 (As Amended) and paragraphs 17, 18, 19, 20, 21 and 48 of the PDP Guidelines, the PDP is bound to submit, and INEC bound to accept the name of the plaintiff as the candidate of the PDP for the Ideato North/Ideato South Federal Constituency of Imo State in the 2019 National Assembly elections, having won the primary election of the party, conducted on the 5th and 6th of October, 2018 in the Constituency.
3. A Declaration of this Honourable Court that the PDP cannot refuse to submit to INEC the name of the plaintiff as its candidate for the election neither can INEC refuse to accept the plaintiff’s name as candidate of the party for the election..
4. A Declaration of this Honourable Court the Plaintiff cannot be withdrawn or substituted as a candidate of the PDP for the election, without his death, withdrawal or incapacitation.
5. A Declaration of this Honourable Court that the National Assembly Electoral Appeal Panel’s hearing and deciding of the petition presented against the plaintiff by an aspirant without informing the plaintiff about the petition and affording him the
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opportunity to state or present his own side of the case, amounted to a denial of fair hearing guaranteed by Section 36(1) of the 1999 Constitution.
6. A Declaration of this Honourable Court that the failure of the National Assembly Electoral Appeal Panel to notify the plaintiff of its decision to recount the votes and afford him the opportunity to be represented during the recounting discredited the recounting exercise.
7. A Declaration of the Honourable Court that the National Assembly Appeal Panel has no power (without the National Working Committee of the Party) to nullify a return already made in a primary election.
8. A Declaration of this Honourable Court that the purported recount of the votes cast in the election by other person or persons other than the Electoral Committee appointed to conduct the election, and in the absence of the plaintiff or his agent was improper.
9. An order of this Honourable Court nullifying the purported decision of the Imo State National Assembly Electoral Appeal panel to recount the votes cast in the election and a further order setting aside the purported recount wherein the 3rd defendant emerged
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winner.
10. An Order of this Honourable Court restraining the 3rd Defendant in this case (George Onyeabor Igbo) from parading or continuing to parade himself or in any way or capacity whatever presenting or continuing to present himself as the candidate or representative of the Peoples Democratic Party for Ideato North/Ideato South Federal Constituency,
11. An Order of this Honourable Court restraining INEC, its staff, servants, agents or privies from accepting, recognizing, publishing or in any way whatsoever, using the name of the 3rd Defendant in this case (George Onyeabor. Igbo) as candidate of PDP for Ideato North/Ideato South Federal Constituency during the 2019 general elections.
12. An Order of this Honourable Court compelling INEC to publish the name of the plaintiff as candidate of the PDP for the 2019 General Election for Ideato North/Ideato South Federal Constituency.
13. An Order of this Honourable Court compelling the 3rd Defendant in this case (George Onyeabor Igbo) to surrender, forfeit and refund to the plaintiff all rights, positions, privileges and perquisites that have accrued to him during his purported
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candidacy/representation of Ideato North/Ideato South Federal Constituency.
14. Any other relief or reliefs which the Honourable Court may deem fit and necessary to make, to meet the justice of the case”.
The 1st Respondent filed along with the Originating Summons an exparte motion for interim injunction, and a motion on notice for interlocutory injunction. Both motions were filed on the same date, namely 18th October, 2018. The motions were initially assigned to High Court No. 6, but were later transferred back to High Court 5 where the Originating Summons was assigned on the orders of the Hon. Chief Judge of the Federal High Court.
In response to the Originating Summons, the appellant as the 3rd defendant filed a conditional memorandum of appearance. It was dated and filed 5th December 2018. Subsequently, the appellant filed a counter affidavit with a written address. Furthermore, the appellant filed a Notice of preliminary objection on 13th December, 2018, challenging the competence of the Originating Summons. The preliminary objection was supported by a 28 paragraphs affidavit, a written address and anchored on the following grounds:
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1. “The suit is premature, the Plaintiff/Respondent having failed to exhaust the internal dispute resolution mechanisms as provided by the 1st Defendant Electoral Guidelines for Primary Election for 2019.
2. This suit is non justiciable, same being an internal dispute arising from the conduct of the Primary election between Members of a political
