HON. OSAZEMWINDE EGHIE SUNDAY v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13115(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/B/201/2019
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HON. OSAZEMWINDE EGHIE SUNDAY Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. DUMEZ ONAIWU UGIAGBE Respondent(s)
RATIO
WHETHER OR NOT THE ONUS OF PROVING NON-COMPLIANCE OF THE ELECTORAL ACT LIES WITH THE PETITIONER WHO COMPLAINS OF NON-COMPLIANCE
In the case of NYESOM V. PETERSIDE & ORS (2016) 2 MJSC (Pt.11)32 the apex Court held that the onus of proving non-compliance to the provisions of the Electoral Act lies with the petitioner who complains of non compliance and he has the bounden duty of proving such before the Respondent will be asked to answer. Simply put, a bare assertion of non-compliance is not sufficient as in the present case, to sustain the allegation. See OJUKWU V. YAR ADUA (2009) 4 MJSC (Pt.11) 7. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court sitting in Benin city delivered on the 14th Day of February 2019 wherein the trial Court dismissed the Appellant?s claim that the party?s primaries of the 6th of October 2018 was not conducted in substantial compliance with the Electoral Act 2010 (As Amended) All Progressive Congress Constitution 2014 (As Amended) and paragraph 15 part 1 of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria.
The facts of this appeal can be summarized as follows: By an amended Originating Summons dated 29th October, 2018, the Plaintiff/Appellant sued the Defendants/Respondents claiming the following reliefs:
a. A declaration that the procedure for the nomination and/or sponsorship of candidates for elective offices recognised by the Electoral Act 2010 (As Amended) is exclusively governed by Section 87 of the Electoral Act 2010 (As Amended) and the 1st Defendant?s Constitution 2014 (As Amended) and the guide lines for the nomination of candidates Direct primaries 2019 made
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thereto by the 1st Defendant and paragraphs 1, 7, 11, 16, 17 (a) (b) (c) (d) and 19 of the 2nd Defendant regulation for the Conduct of the Political Party primaries made further to paragraphs 15 part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria.
b. A declaration that the conduct of the Edo State House of Assembly Primaries of the 1st Defendant held on the 6th day of October, 2018 without proper procedure for the use of Direct Primary as agreed upon by the 1st Defendant was conducted in breach of Section 87 of the Electoral Act 2010 (As Amended), the 1st Defendant?s Constitution 2014 (As Amended), the Guide lines for the nomination of candidates for the 2019 General Elections Direct Primaries made thereto by the 1st Defendant and paragraphs 1, 7, 11, 16 and 17 (a) (b) (c) (d) and 19 of the Regulation for the conduct of Political Party Primaries made further to paragraph 15, part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and therefore, unlawful, illegal, null and void.
c. A declaration that the 2nd Defendant cannot lawfully recognise the 3rd Defendant as the candidate
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nominated and sponsored by the 1st Defendant for the purpose of the forth coming general Election 2019 whose emergence as the nominated candidate is in clear breach of the procedure of Direct Primaries adopted for Edo State by the 1st Defendant and not in compliance with the 1st Defendant?s Constitution 2014 (As Amended), Electoral Act 2010 and paragraphs 1, 7, 11, 16 and 17 (a) (b) (c) (d) and 19 of the of the 2nd Defendant?s Regulation for the Conduct of Political Party Primaries made further to paragraph 15, part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria.
d. A declaration that it is unlawful for the 2nd Defendant to act on a candidate nominated by the 1st Defendant for the purpose of the Edo State House of Assembly general Election 2019 Ovia North East Constituency Seat when such a candidate did not emerge in compliance with the Electoral Guidelines established by the 1st Defendant for conduct of its Primaries, paragraphs 1, 7, 11, 16 and 17 (a) (b) (c) (d) and 19 of the Regulation for the Conduct of Political Party Primaries made further to paragraph 15 part 1 of the 3rd Schedule to the 1999
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Constitution of the Federal Republic of Nigeria (As Amended) and the Electoral Act 2010 (As Amended).
e. A Order of this Honourable Court directing the 1st Defendant to withdraw the nomination and sponsorship of the 3rd Defendant for the 2019 General Election Ovia North East Constituency he having not validly emerged as provided for and in compliance with paragraphs 14, 18 (A-M) and 19 (I-V) of the guide lines for the nomination of candidates for the 2019 general Election-Direct Primaries made pursuant to the 1st Defendant?s Constitution paragraphs 1, 7, 11, 16 and 17 (a) (b) (c) (d) and 19 of the Regulation for the Conduct of Political Party Primaries made further to paragraph 15 part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act 2010 (As Amended) and for a valid primaries to be conducted for the nomination of a suitable candidate within such reasonable time as may be determined by the Court.
f. A declaration that the Claimant having purchased nomination forms, completed same and complied with all the requirements for 1st Defendant?s Constitution 2014 (As Amended) the Guide lines
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2019 for the conduct 1st Defendant?s Primaries, eligible to contest under the 1999 Constitution (As Amended) and the Electoral Act 2010 (As Amended) and duly cleared to participate in the Direct Primary of the 1st Defendant Scheduled to hold on the 4th of October 2018 and re-scheduled for the 6th October 2018 cannot be lawfully excluded from participating in the nomination/Primary exercise re-scheduled for the 6th of October 2018 by the 1st Defendant.
g. A declaration that Claimant having purchased nomination form for the House of Assembly Primary Election for the Ovia North East constituency (1) seat and satisfied all requirements under the 1999 Constitution of the Federal Republic of Nigeria, the 1st Defendant?s Constitution 2014 (As Amended) the Guidelines 2019 for the nomination of candidates made thereto by the 1st Defendant and the Electoral Act 2010 (As Amended) he is entitled to equal participation with the 3rd Defendant in the Primary election of the Party and be nominated/sponsored as the candidate of the 1st Defendant in the forthcoming 2019 general Election.
h. A declaration that failure of the 1st Defendant to communicate in
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writing to the 3rd Defendant the date of the re-scheduled 1st Defendant?s political party primary Election for the Edo State House of Assembly Ovia North East Constituency re-scheduled by the 1st Defendant to hold on the 6th of October 2018 render the nomination and sponsorship of the 3rd Defendant or any other person as candidate to be sponsored for the 2019 general Election Ovia North East Constituency at such Primaries null void and of no effect.
i. An order of injunction restraining the 1st and 2nd Defendants either by themselves their servants, Agents, Privies, Assigns, Authorized representatives or however described from fielding and sponsoring the 3rd Defendant and or any other candidate for the forthcoming 2019 general Election Edo State House of Assembly Ovia North East Constituency (1) seat without conducting the 1st Defendant?s political party primary Election in compliance with the Electoral Act, 1st Defendant?s Constitution the guidelines for the nomination of candidates 2019 made thereto by the 1st Defendant and 2nd Defendant?s regulation for the conduct of political party primaries 2014.
j. An order of this
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Honourable Court directing the 2nd Defendant to expunge the name of the 3rd Defendant as the nominated candidate of the 1st Defendant from the register of the Edo State House of Assembly candidates for the 2019 general Election pending the conduct of valid primaries for the Edo State House of Assembly Ovia North East Constituency seat (1).
k. An order setting aside any fictitious result being bandied about by the 1st and 3rd Defendants that is not a product of a valid direct primary conducted in compliance with paragraphs 14, 18 (A-M) and 19 (I-V) of the guidelines for the nomination of candidates for the 2019 general Election Direct Primaries made pursuant to the 1st Defendant?s Constitution, paragraphs 1, 7, 11, 16 and 17 (a) (b) (c) (d) and 19 of the Regulation for the Conduct of Political Party Primaries made further to paragraph 15 part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and the Electoral Act 2010 (As Amended).
The Appellant of the 1st Respondent party contested Primary Election of the 1st Respondent for the Ovia North East Constituency I seat for the 2019 General Elections into
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the Edo State House of Assembly. The contention of the Appellant is that the date fixed for the primaries which was 6th day of October 2018, the 1st Respondent and Electoral Officers did not conduct the primaries but merely allocated votes to the aspirants to declare the 3rd Respondent as the nominated candidate of the 1st Respondent to be sponsored in the 2019 General Elections for the Edo State House of Assembly, Ovia North East Constituency I Seat.
The Appellant however filed an Originating Summons at the Federal High Court Benin Division, claiming a number of reliefs which included a declaration that the conduct of the Edo state House of Assembly Primary of the 1st Defendant held on the 6th day of October 2018 in the House of Assembly Elections in Ovia North East Constituency I Seat without the proper procedure for the use of Direct primary as agreed upon by the 1st Defendant was conducted in breach of Section 87 Electoral Act 2010 (As Amended), the 1st Defendant?s Constitution 2014 (As Amended), the Guidelines for the Nomination of Candidates for the 2019 General Elections ? Direct primaries made thereto by the 1st Defendant and paragraphs
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1, 7, 11, 16 and 17 (a), (b), (c), (d) and 19 of the Regulation for the conduct of Political Party Primaries made further to paragraph 15, part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and therefore, unlawful, illegal, null and void.
The Respondents? Counter Affidavits to the suit and the Originating Summons were taken by the lower Court and Judgment was delivered on the 14th Day of February 2019. Aggrieved by the Judgment of the trial Court, a Notice of Appeal was filed on the 27th day of February 2019 by the Appellant who distilled the following Issue for determination:
?Whether from the affidavit evidence of the parties, the trial Court was right to hold that the plaintiff failed to prove his assertion that, the primaries of the 6th day of October 2018 was not conducted in substantial compliance with the Electoral Act 2010 (As Amended), All Progressive Congress Constitution 2014 (As Amended), and the Guidelines for the nomination of candidates for the 2019 General Elections ? Direct Primary made pursuant to Article 7 (IV) Paragraphs 1, 7, 11, 16 and 17 (a), (b), (c), (d) and 19 of the
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Regulation for the conduct of Political Party Primaries made further to paragraph 15, part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria (this issue covers grounds 1, 2, 3 and 5).?
The 1st & 3rd Respondents on their part adopted the Appellant?s sole issue.
The Plaintiff/Appellant seeks for the determination of a number of questions based on the interpretation of the Electoral Act (2010) (As Amended).
?
All Progressive Congress Constitution 2014 (As Amended), the guidelines for the nomination of candidates for the 2019 and General Elections Direct Primaries made pursuant to Article 7 (iv) thereto issued by the 1st Respondent.
The compendium of the arguments of the Appellant is that there was substantial non-compliance with the Electoral Act, the Constitution of the All Progressive Congress, the guidelines for the nomination of candidates for the 2019 general elections and INEC Regulation for the conduct of Political Party Primaries. Learned counsel for the Appellant further X-rayed the facts of the said non-compliance as established by the affidavit evidence of the parties. That the 1st
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Respondent did not maintain a duly and proper certified membership register. The Appellant also asserted in his affidavit in support of the originating summons that there were no Returning/Electoral officer in Wards 5 and 7 in Ovia North East Local Government Area. He concluded that elections were ether disrupted or did not hold at all in 5 of the 6 Wards of Ovia North East Constituency. That the said elections were conducted in substantial compliance with the Electoral Act. He then further concluded that the disrupted primary election from 2 wards and the non conduct of elections in wards 5, 7 and 9 is substantial enough to affect the result of primary election from which the 3rd Respondent was nominated and sponsored by the 1st Respondent in the 2019 general elections.
?
In response, learned counsel for the 1st and 3rd Respondent contended that the facts deposed to by the Appellant in his affidavit in support of the originating summons are vague and imprecise. He surmised that Exhibit D.U.O.3 which is the membership register of the 1st Respondent was used for the accreditation for the primary election of 6th October 2018 before voting commenced. On the
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issue of disruption of the primary election in several wards learned counsel stated that the Hajia Faridah Odaugi Suleiman National Committee set up a Local Government Electoral Committee handed by Hon. Victor Ekhator and this fact was aptly reinforced by the report of the Legislative Primaries Committee (National and State Assembly) Edo State. See Exhibit D.U.O.4.
Learned counsel surmised that where there is any alleged falsification of primary election results, that the Appellant has failed to establish any falsity and neither was any other genuine result produced by him. He then reiterated the fact that the said election was conducted in substantial compliance and the 3rd Respondent emerged winner.
RESOLUTION:
I have ploughed through the record of appeal and the briefs of the various parties, including the legal authorities so cited by both parties. The gravamen of the case of the Appellant is that there was substantial non compliance with the laws and regulations in the conduct of the 2019 general elections for the Edo State House of Assembly Primary Election. The Respondent on its own part claimed that it performed its statutory duty of
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monitoring the primary election of the 6th October, 2018 and that primary elections were disrupted in Adolor ward 4 and Isiuwa ward 8 since electoral materials were not brought to the centers.
In general legal parlance, where an allegation of substantial non-compliance with the electoral laws or regulations is made, the onus is on the petitioner to show that such allegation of non-compliance has substantially affected the result. See ANAZODO V. AUDU & ORS (1999) 4 NWLR (Pt.600) 530; AWOLOWO V. SHAGARI (1979) 6-9 SC 51. Again I am not unmindful of the principle that he who asserts must prove and therefore it behoves the Appellant to prove all the alleged inconsistencies as deposed to in his affidavit in support of the amended originating summons. The lower Court however highlighted the non-compliance complained of by the Appellant and the reply of the Respondent.
The Appellant complained that Exhibit DOU 3 (membership Register) was not certified being a public document. The lower Court held that notwithstanding this assertion, the said membership register shows pictures and names of the different political party members with details of their
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wards etc. In my view, the alleged non registration of the said register becomes an irregularity which does not strengthen the case of the Appellant. I also refer to the case of ALI ? UCHA V. ELECHI (2012) 3 MJSC (Pt.11) 6 where the Court held that the onus is on the petitioner complaining of non-compliance with the Electoral Act (as amended) and must prove that the non compliance was substantial. Appellant has also complained that the primary election was not conducted in 5 out of the 6 wards that constitute Ovia North East Constituency (1) and that prevented eligible members of the A.P.C. from casting their votes at the primary election and thus depriving them of the opportunity of nominating the candidate of their choice in the election that was held on the 6th October 2018.
The 1st and 3rd Respondent in their counter affidavit averred that the said primary election of 6th October 2018 was in substantial compliance with the various guidelines and regulations. Also that membership registers were made available at the A.P.C national secretariat and also to the Legislative Electoral Committee sent to conduct the primary election and also to all
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ward returning officers.
The 2nd Respondent in its counter affidavit in opposition to the originating summons (para 5 (c) ) averred that officials of INEC were deployed on the 6th October, 2018 to monitor the primary elections in Ovia North East Local Government Area of Edo State and exhibited the monitoring report in EXHIBIT INEC.
In the case of NYESOM V. PETERSIDE & ORS (2016) 2 MJSC (Pt.11)32 the apex Court held that the onus of proving non-compliance to the provisions of the Electoral Act lies with the petitioner who complains of non compliance and he has the bounden duty of proving such before the Respondent will be asked to answer. Simply put, a bare assertion of non-compliance is not sufficient as in the present case, to sustain the allegation. See OJUKWU V. YAR ADUA (2009) 4 MJSC (Pt.11) 7. Again, a careful perusal of all the documentary evidence before the lower Court does not reveal any breach of all relevant Act, laws regulations and guidelines as stated by the Appellant.
The Appellant in my view is seeking to right a wrong where none exists. From all the affidavit evidence so far adduced by all the parties, it is clear in my view
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that there was indeed a primary election for the OVIA NORTH EAST State Constituency on the 6th October, 2018 where the 3rd Respondent emerged and was declared winner. Also I subscribe to the view as held by the trial Court that the said election was conducted in substantial compliance with the laws and guidelines regulating the conduct of the primary election of the 1st Respondent.
From the totality of all of the above summation, it is my ardent view that the Appellant has failed to prove his assertions in the originating summons that the said primaries of the 6th day of October 2018 was not conducted in substantial compliance with the Electoral Act 2010 (as amended), the Constitution of the All Progressive Congress (as amended) and the guideline for the nomination of candidates for the 2019 General Elections Direct Primary.
In sum, this appeal is adjudged totally lacking in merit, it fails and is hereby dismissed in it?s entirely.
Accordingly, the Judgment of the lower Court delivered on the 14th February, 2019 is affirmed. Cost of N200,000.00 is hereby awarded in favour of the 3rd Respondent against the Appellant. Appeal Dismissed.
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read in draft the judgment of my learned brother P. M EKPE, JCA just delivered.
My learned brother has comprehensively dealt with the issues identify for determination in this appeal. I agreed with his reasoning and conclusion.
For the reasons advanced in my learned brother’s lead judgment, I also dismiss this appeal and affirm the judgment of the trial Court.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA.
I agree with the decision of my learned brother and abide by all the orders made therein.
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Appearances:
D.A. AlegbeFor Appellant(s)
C.I. Aiguobarueghian for the 1st-3rd Respondents.For Respondent(s)
Appearances
D.A. AlegbeFor Appellant
AND
C.I. Aiguobarueghian for the 1st-3rd Respondents.For Respondent