IWOK & ORS v. INEC & ORS
(2022)LCN/16945(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, September 21, 2022
CA/ABJ/CV/825/2022
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. RT. HON. FRIDAY IWOK 2. IDOREYIN GODWIN ESSIEN 3. AKAN-MARY EMMANUEL UDO 4. BARR. MAURICE UDOKA 5. ARCHIBONG MICHAEL ARCHIBONG 6. ENGR. NICHOLAS IDUNGAFA 7. OBONGANWAN LOVINAH UMOEFA 8. EFFIONG BENSON 9. ELDER ENEFIOK EKEFRE 10. PASTOR BASSEY ISIN 11. EKEMINI BASSEY UKIM 12. CHRISANTUS OKON 13. UNWANTA ANDREW UDOFOT 14. CHARLES UDOEBUK 15. HON. UBONG IYOHO 16. OBONG BARR KENNEDY EKONG 17. ASUKPA UKANA ULAETO 18. DR. USORO I. USORO 19. INI USORO AKAPANUSOH 20. UFOT TOBY NKANGUDE 21. BARR JERRY AKPAN 22. BARR. BASSEY WILLIE 23. CHIEF JERRY OKPO APPELLANTS 24. MICHAEL UBOKULO 25. OKPOYO JOHN ETIFIT 26. CHIEF OKON OSUNG (For Themselves And On Behalf Of Other Members Of The Peoples Democratic Party In Akwa Ibom State Who Were Aspirants For The Akwa Ibom State Ward Ad-Hoc Delegates Election And Who Are Not Opposed To This Appeal) APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. PEOPLES DEMOCRATIC PARTY 3. EKERETTE BENSON 4. UNWANA IBOKETTE 5. MICHAEL NSE HANSON 6. SUNDAY AKPAN SUNDAY 7. PATRICK STEPHEN 8. EVENTUS JOSEPH UKO 9. NDIANABASI UMOH 10. BARR IMOH WILLIAMS 11. ANIEDI NNANA UDO 12. ESEME ESSIEN 13. JOSEPH EDWARD UKPONG 14. MRS EKPERIKPE BEAUTY AUGUSTUS 15. PEPPLE LOVE LAMBERT 16. MONDAY JEREMIAH EFUIKATA 17. SALOME JOHNSON 18. JOHN ANTHONY UKPATU 19. BLESSING ISOTUK 20. ISOTUK ELIJAH FRANKLIN 21. MARK COMFORT SUNDAY 22. ALPHAEUS THOMAS 23. DANIEL URO CHINYERE 24. NDIOHO FRIDAY ROBSON 25. PASTOR JOSHUA EKPETIM 26. NELLY UKPONG 27. CHIEF INIOBONG IDEM 28. KINGSLEY DICKSON UMEM 29. CHIEF AKWARKONG I DIM 30. ERIC JAMES ETUKAKPAN 31. UMOH JAMES EKOTUMOH 32. AKPAN MONDAY BASSEY 33. CHIEF CHRISTOPHER H. ISONG 34. ANTHONY ETUKUDO 35. PROF. ETTIE BEN AKPAN 36. HON. SAMUEL JOHN IBOK 37. BILLS ENE 38. MOSES PETER NSSIEN RESPONDENTS 39. DANIEL ETTEAKPAN 40. SUNDAY FRIDAY OKON 41. INIODU INUAITANG 42. ANIEFOK EKWERE 43. ANIEFOK UMO 44. OFFIONG, ITA OKON 45. OKON BASSEY IYANAM 46. UTITOFON MORRIS EDOHO 47. CHIEF NSINI NYOYOKO 48. MR IMO SILAS 49. HON EMMANUEL BEN 50. MR IFIOK ASUQUO AKPAN 51. STEPHEN AKPAN EKPE-MAGHA 52. HON GEORGE AFANGIDEH 53. OBONG FRANCIS OBI JI J 54. AKPAKPAN CHRYSANTHUS ETIM 55. ELDER SUNDAY UDIOKO 56. RT HON JOHN UDO EKANEM 57. APOSTLE GREGORY EDO 58. INYENE MOSES ENOIDEM 59. HON IDARESIT ETTETE 60. GIDEON UWA 61. HON SAMUEL EFFIONG 62. ENGR IME FRIDAY IKONO 63. HON ANIEKAN UDOAMA FRIDAY 64. HON EMEM ISAAC UDONKANG 65. MR SENYOM EMMANUEL EKEKE 66. MR MESSIAH ODUDUWA 67. UKPONO EBEBE 68. UKEME OKON UDO 69. OFONMBUK UDO UMOREN 70. UWEM ESHIET 71. ENEFIOK GILEAD ROBINSON 72. INIEDU RICHARD NELSON 73. ITORO JOHN THOMPSON 74. IDORENYIN SUNDAY EKOR 75. AKPARAWA NSE UBEH 76. WISDOM UDO UKPONG 77. OKON ABRAHAM ARCHIBONG 78. ITA ETUKUDO 79. ETEN AM DANIEL UKOT 80. HON SAMUEL EYO OTOKERE 81. INYANG DIAMOND AKPANIKA UKOT 82. JOHN SAMUEL UNYENE 83. SUNDAY ETOR ISOKOBO 84. WILLIAMS SUNDAY WILLIAMS 85. IBOK ETUKUDO PETER 86. PETER NSOPIKPO MFON 87. RT HON GEORGE UDIABONG 88. OBONG AKANINYENE BEN 89. OBONG RT HON THOMAS AKPAN 90. DR SAMUEL EDET 91. HON ANTHONY OKON AKPAN 92. HON JOHN JOB 93. BARR AKANINYENE BEN 94. MR. RICHARD AKPAN 95. HON EDUOK EDUOK 96. ELDER UDUAK EKPO 97. RT HON EYAKENO ETUKODO 98. AKPAN ENEFIOK JOHN 99. ROYAL ANIEKAN INYANG 100. ANTHONY PATRICK 101. KOKUETTE INYANG 102. ETOP IDUNG H RESPONDENTS 103. NSISONG RICHARD 104. FABIAN UBAHA 105. PASTOR JOSEPH UDOH 106. BASYL OBO AYAMA 107. EZEKIEL BENJAMIN 108. ENDURANCE PETER 109. MONDAY ALEXANDER WILLIAM 110. IME HILLARY EBOH 111. ENGR IME THOMAS NWOKO 112. HON UWEM CLETUS ARCHIBONG 113. RT HON GABRIEL TOBY UDOH 114. UMAKISO THOMAS OKUNNAH 115. HON USEN OYOH 116. LINUS THOMPSON UDOKPAN 117. HON ANTHONY UDOUSUNG J 118. INIBEHE SILAS ETUKUDO 119. NYENEABASI MIKE ENE 120. IDORENYIN ESSIEN ETEFIA 121. SAMPSON OKORIE 122. KUFRE EFFIONG OKON 123. ANIETIE AKPAN 124. JOHN ASANGA 125. AKWAOWO INYANG 126. HON LUKE ESHIET 127. AKANIMO UDO ASANGA 128. IBORO EKPA 129. IFIOK U NTAFIONG 130. UWEM OKOKO 131. ABAI BENSON 132. ENO UMO OROK 133. EMMANUEL NDA OWO 134. GODWIN UDONTA 135. BARR UWEM EKANEM 136. ATTAI CLEMENT ATTAI 137. EMMANUEL UMANA 138. MICHAEL MFON 139. INYANG GREEN OBOT 140. DAVID AKPAN UMANA 141. BENSON UMO INYANG 142. HON ISONG ISANG 143. FAVOUR OTONG 144. MFON MICAH UDO 145. GREGORY UKPONG 146. GODSWILL FRANKLIN ESSIEN 147. DANIEL OBOT 148. MATTHEW INYANG 149. DANIEL ESSIEN 150. UNYIME THOMAS AKPAN ~- 151. MICHAEL EBIO 152. SAVIOUR AKPAN EBONS 153. MFONISE OBONG 154. UDOETE JOHN ISEYEN 155. BARR ESSIEN ESSIEN 156. SAMUEL ALEXANDER 157. JAMES CHARLES JAMES 158. EKANEM EKANEM 159. FRIDAY ETIM UDO 160. LAWRENCE UDOIDE 161. HON. EFFIONG ITA EMAH 162. EFFIONG EFFIONG 163. BARR HARRISON ATAIDE 164. EMMANUEL DENNIS 165. HON MFON JAMES 166. MR EFIOK ETIM 167. HON SAMPSON SAMPSON 168. ENEFIOK UDOH 169. HON KINGSLEY ALOYSIUS 170. EMMANUEL OKON ABEL 171. PRINCE CHRIS ABASIEYO 172. ISRAEL ETIM OKON 173. EMMANUEL NTEKIM 174. ASUQVO ETIM UWE 175. SAMUEL EDET NEKEREUWEM 176. OKON EFFIONG ANTE 177. ETEYEN WILLY IMISIM 178. ASUKWO EDET IYANG 179. JOSEPH EFAH BASSEY 180. EMMANUEL EDET EDET 181. EDIKAN SAMUEL STEPHEN 182. JAMES ENOBONG UDOFIA 183. JEREMIAH UDO ISAAC 184. ISAAC AKPAN SIMON 185. MICHAEL UKPE 186. SAMUEL RUFUS JOHNNIE 187. ANIETE NKANTEEN 188. ANIEDI UKOENANG 189. NSEOBONG EMMANUEL GEORGE 190. OTOBONG NSE UBIA 191. AKANINYENE AKPABIO NELSON 192. UBONG BENJAMIN ASUQUO 193. MBETOBONG GEORGE 194. CLEMENT GEORGE INYANG 195. MATHIAS AKPAN HENRY 196. NSEABASI OKON UDOEYO 197. ANTHONY AKPAN UDOEKONG 198. CLETUS ALBAN ETIM 199. DANIEL RAPHAEL EFFIONG 200. SAMUEL BASSEY NYONG 201. WISDOM UDO-UDO OBOT 202. GABRIEL OSSOM 203. ETIM MFON SAMUEL 204. EMMANUEL JACK BASSEY 205. ELDER UDEME UDOEKONG 206. ANIEDI EDEM UDO 207. HON UMO EYO ETTE 208. OBONG FRANCIS SAMUEL INYANG 209. AMOS IBANGA HOB 210. OTU EFFIONG ETUK 211. COMRADE AKAMBA AWAH 212. BARR SAMUEL AWAKESSIEN 213. HON ODUDU NDEM AKANG 214. ANIEKAN MOSES ETUK 215. HON CHRIS EKPO 216. UMO BASSEY ENO 217. DR ANIEFIOK EDEM 218. SUNDAY UDO GEORGE 219. DESTINY AKPAN 220. MRS DORA BASSEY 221. NSIKAK JOHNNY 222. BASSEY BASSEY DAN 223. UKPONG OBOT 224. ETIM ARTHUR 225. ANTHONY UKPONG 226. OBONG PATRICK UMOH 227. NISKAK PAUL UDO 228. EMMANUEL OKON UDOM 229. UKEME EDET UMOREN 230. MONDAY UDOATA 231. BARR PAUL UDO 232. ENGR BASSEY NTUEN 233. BARR KUFRE UKPONG 234. BARR COSMAS UDOETTE 235. VICTOR ENEYO BASSEY 236. VICTOR PAUL UNOH 237. OSUNG EFFIONG WILLIAMS 238. RAPHAEL ANWANAKAK 239. CORNELIUS ETON 240. OKON A TING UMOH 241. BONIFACE DAVID EKPENYONG 242. DOMINIC IKOEDEM EKPENYONG 243. UMOH OFFIONG OFFIONG 244. BENJAMIN EFFIONG UYAH 245. GABRIEL NKANANG 246. JEPTHAH SAMBO “] 247. CLINTON AKPAETTE 248. UDOUYOATTA EBIO 249. UMOH EMEM DANIEL 250. KINGSLEY JOHNNY 251. GODWIN FESTUS THOMPSON 252. SAMUEL UMOFIA 253. UDO UDOKKY 254. SUNDAY AKPAN BENJAMIN 255. NELSON EKANEM 256. USORO PAULINUS 257. JOHN EFFIONG EDET 258. HON ASUKWO ETIM EDET 259. ASUKWO ETIM ASUKWO 260. HON EFFIONG ATANANG 261. SUNDAY OKON ETIM 262. PRINCE OYOKUNYI ESIN 263. HON EFFIONG EDOHONSI 264. JOE EFFIONG EBAH 265. VINCENT ASUKWO EFFIONG 266. JOSEPH MATTHEW BASSEY 267. AMADIE AKPABIO 268. DENIS PIUS BEN 269. ANIEKPENO SATURDAY AKPAN 270. AKAN UDOM 271. SAMPSON IDIONG 272. BASSEY SUNDAY ESSIEN 273. UDOMA BOB EKARIKA 274. SATURDAY JOE HENYIN 275. IBORO UDO DICKSON 276. EMMANUEL KYRIAN AKPAN 277. ANIEFIOK OBIOUBONG UDOEKPO 278. BROWN MONDAY BROWN 279. NSEYO GREEN 280. EMMANUEL ITA OKON 281. EDET SUNDAY ABIANWA 282. SAMUEL SENDAY EYO 283. BEN ESIFA 284. SAMUEL EDET BASSEY 285. VICTOR EDIET OKON 286. EMMANUEL OKON NNASIA 287. EDET EDEM ATTI 288. ASUKWO EDET EDOHO 289. KINGSLEY OKON ITA 290. OBOT FRIDAY OBOT 291. HON NDUESO MONDAY AKANEKPO 292. HON (BARR) IDONGESIT UMOH 293. ENGR EKPENYONG UDO EKPENYONG 294. CHIEF SENAS JOHN UKPANAH 295. HON ABASIOFON ISAIAH MOSES 296. HON OTOBONG JONATHAN AKPAN 297. HON NSEOBONG MATTHEW UMANAH 298. ELIJAH FRIDAY AKPAN 299. HON SYLVANUS TITUS 300. MR. SATURDAY ETIM UDONNEH 301. HOGAN EDET BASSEY 302. EMMANUEL BASSEY EFFIONG 303. PETER EDET ETIM 304. PATRICK OKON EKPO 305. EMMANUEL ANDIYANGHA UDOH 306. JOSEPH EDET ETIM 307. AKANINYENE EDEM UDO 308. KINGSLEY ETIM OROK 309. NAZARETH MICHAEL UDOH 310. CLETUS KUFRE UDOBANG 311. EDET MICHAEL 312. ELDER ETIM JOE EDUNG 313. MICHAEL ASUKWO OKON 314. MFON ITA TOM 315. EZEKIEL EDET ESSANG 316. ELDER FRIDAY OKON UWE 317. ETIOWO HENSHAW ASUAMA 318. CHIEF EDDY UKIM 319. VICTOR EDET UKPONG 320. GABRIEL EFFIONG ANWANA 321. CHIEF E.E. UWE 322. IDONGESIT SAMUEL 323. VICTOR ISAIAH 324. FRANK MOFFAT 325. AMOS EKPENYONG 326. IDORENYIN UMOH 327. IMOH CHARLIE 328. JUDE OLIVER 329. UBONG NELSON 330. UBONG EKPENE 331. JOSEPH PETER (For And On Behalf Of The 987 Ad Hoc Delegates That Contested And Won The Ward Congress Election Conducted In The 329 Electoral Wards Of Akwa Ibom State On April 30th 2022) RESPONDENT(S)
RATIO
WHETHER OR NOT POLITICAL PARTIES ARE BOUND BY LAW
There is no gainsaying the fact that political parties, being creations of law are bound by law and as voluntary associations, are bound by their constitutions which provides guidance on how the affairs of the party is to be conducted. This position of the law was recently restated by the Supreme Court in the case of UBA v. MOGHALU & ORS (2022) LPELR- 57876(SC) Pp 40 – 41, Paras C – E, where per Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC, held thus:
“The law is quite settled that political parties must obey their constitution, guidelines and regulations. In APC vs Karfi & Ors (2017) LPELR-47024(SC) AT 33-34 A-A His Lordship, Okoro, JSC held, inter alia: “The era of recklessness and impunity by political parties is over, it is an aspect of corruption for a political party to disobey its constitution and guidelines in order to impose candidates on the electorate. This Court has taken a firm stand that this must stop. It is in the interest of our nation that political parties observe internal democracy for the smooth running of our democratic process.” In my concurring judgment in Mato Vs Hember & Ors (2017) LPELR-42765 (SC) AT 51 A-C: (2017) 6 SC (Pt. VI) 161, 1 opined thus: “The only way our democratic dispensation can work effectively is where an aspirant for political office, who is qualified to contest an election, is given an even playing field. The failure of internal democracy within our political parties right from the grassroot level eventually leads to instability in the entire political system. The failure of internal democracy is one of the reasons why the Court’s dockets are congested with pre-election disputes. See also Ugwu vs Ararume (2007) 12 NWLR (Pt. 1048) 476 AT 514 b-E; Uzodinma Vs Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 AT 60 C-E; C.P.C. vs Lado (2011)14 NWLR (Pt. 1266) 40 AT 91-92 b-G. The stance taken by the two lower Courts, is fully supported by these authorities.”
See: GANA v. SDP & ORS (2019) LPELR-47153(SC); and PDP & ORS v. OKORO & ANOR (2022) LPELR-57272(CA). PER TUKUR, J.C.A.
THE PRINCIPLE OF LAW ON HE WHO ASSERTS MUST PROVE THE FACT AS ASSERTED
It is trite in our jurisprudence that he who asserts must prove that the fact as asserted, exists in order to be entitled to judgement on the facts asserted. The foregoing is the import of Section 131 of the Evidence Act 2011, which provides:
(1) Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
See; JIMOH v. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46329(SC); MUFUTAU v. ADENIYI (2021) LPELR-55612(CA); and KASUWA v. POLORE (2021) LPELR- 55071 (CA). PER TUKUR, J.C.A.
THE POSITON OF LAW WHERE AN APPELLANT SEEKS DECLARATORY RELIEFS
In the case of ETIM v. AKPAN & ORS (2018) LPELR-44904(SC), which had to do with primary elections, the Supreme Court held thus:
“In an action of this nature, where the appellant, as plaintiff, seeks declaratory reliefs, he has the burden of satisfying the Court that he is entitled to those reliefs. He must rely on the strength of his own case and not the weakness of the defence, if any. He may not even rely on any lapses or inadequacies in the defence. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt 1119) 361: Emenike vs P.D.P (2012) 12 NWLR (Pt.1315) 556: Okoye vs Nwankwo (2014) 15 NWLR (Pt. 1429) 93.” PER TUKUR, J.C.A.
WHETHER OR NOT THE COURT CAN DELVE INTO SUBSTANTIAL ISSUES AT AN INTERLOCUTORY STAGE OF PROCEEDINGS
It is indeed the position of the law that a Court should not delve into substantial issues at an interlocutory stage. That principle does not however apply to this appeal as the trial Court did not delve into substantial issues but adopted exposition used in the resolution of the preliminary issue in resolving the substantial issues. See: AKINRIMISI v. MAERKS NIGERIA LTD & ANOR (2013) LPELR-20179(SC); and AKOMA ORS v. ONWUSIBE (2021) LPELR-55476(CA). PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgement of the Federal High Court, Abuja, in Suit No. FHC/ABJ/CS/606/2022 delivered on 15th July, 2022 by Honourable Justice Obiora Atuegwu Egwuatu, wherein the Court gave judgement in favour of the Respondents.
The material facts of the case leading to this appeal is that the Appellants acting on the belief that they and other members of the Party had been unlawfully disenfranchised from partaking in the 2nd Respondent’s Akwa Ibom State Ward Ad-Hoc delegates elections, instituted an action before the lower Court via an amended Originating Summons filed on 19th May, 2022, via which three questions were presented for determination, that is:
1. Whether having regard to the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the Akwa Ibom State Chapter of the 2nd Defendant or the party’s Akwa Ibom State Publicity Secretary has the powers/vires to issue the Public Notice dated the 29th day of April, 2022, conduct the 2nd Defendant’s Akwa Ibom State Ward Congress for the purpose of electing the 2nd Defendant’s 13 Ward Ad-Hoc Delegates eligible to vote at the party’s forthcoming gubernatorial. National Assembly and State House of Assembly Primary Elections in Akwa Ibom State or in any way or manner schedule a Time-Table or date for the conduct of the said Ward Congress.
2. Whether having regard to the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the 2nd Defendant’s Akwa Ibom State Ward Congress purportedly held on the 30th day of April, 2022 for the purpose of electing the 2nd Defendant’s Ward Ad-Hoc Delegates eligible to vote at the party’s forthcoming Gubernatorial, National Assembly and State House of Assembly Primary Elections in Akwa Ibom State is not unconstitutional, illegal, null and void and of no effect whatsoever.
3. Whether having regard to the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the 1st and 2nd Defendants ought to accept, act on, accord recognition or in any way or manner deal with any purported list of elected ward Ad-Hoc Delegates from the 31 Local Government Areas of Akwa Ibom State, arising from the purported ward congress of the 2nd Defendant held in Akwa Ibom State on the 30th day of April, 2022 or any other date in breach of the aforementioned provisions of the 1999 Constitution (as amended). Electoral Act, 2022, the 2nd Defendant’s Constitution and Electoral Guidelines.
Appellants also sought the grant of the following reliefs:
A. A Declaration that in view of the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the Akwa Ibom State Chapter of the 2nd Defendant or the party’s Akwa Ibom State Publicity Secretary lacks the powers/vires to issue the Public Notice dated the 29th day of April, 2022, conduct the 2nd Defendant’s Akwa Ibom State Ward Congress for the purpose of electing the 2nd Defendant’s Ward Ad-Hoc Delegates eligible to vote at the party’s forthcoming gubernatorial, National Assembly and State House of Assembly Primary Elections in Akwa Ibom State or in any way or manner schedule a Time-Table or date for the conduct of the said Ward Congress.
B. A Declaration that in view of the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the 2nd Defendant’s Akwa Ibom State Ward Congress purportedly held on the 30th day of April, 2022 for the purpose of electing the 2nd Defendant’s Ward Ad-Hoc Delegates eligible to vote at the party’s forthcoming gubernatorial, National Assembly and State House of Assembly Primary Elections in Akwa Ibom State is unconstitutional, illegal, null and void and of no effect whatsoever.
C. A Declaration that in view of the clear and unambiguous provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022, the 1st and 2nd Defendants ought not to accept, act on, accord recognition or in any way or manner deal with any purported list of elected ward Ad-Hoc Delegates from the 31 Local Government Areas of Akwa Ibom State, arising from the purported ward congress of the 2nd Defendant held in Akwa Ibom State on the 30th day of April, 2022 or any other date in breach of the aforementioned provisions of the 1999 Constitution (as amended), Electoral Act, 2022, the 2nd Defendant’s Constitution and Electoral Guidelines.
D. An Order of Injunction restraining the 1st and 2nd Defendants from accepting, acting on, according recognition to, or in any way or manner dealing with any purported list of elected Ward Ad-Hoc Delegates from the 31 Local Government Areas of Akwa Ibom State, arising from the purported ward congress of the 2nd Defendant held in Akwa Ibom State on the 30th day of April, 2022 or any other date in breach of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022.
E. An Order of Injunction restraining the 1st Defendant from attending or monitoring the Gubernatorial, National Assembly and State House of Assembly Primary Elections of the 2nd Defendant in Akwa Ibom State on any scheduled date, to be conducted on the basis of any purported list of elected Ward Ad-Hoc Delegates from the 31 Local Government Areas of Akwa Ibom State, arising from the purported Ward Congress of the 2nd Defendant held in Akwa Ibom State on the 30th day of April, 2022 or any other date in breach of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 84(3),(5)(b)(i) and (13) of the Electoral Act, 2022; the preamble to the Constitution of the 2nd Defendant; Articles 2, 7(g), (h), 3(a), 15(2)(e) and (f), 21, 24(2) and 25 of the 2nd Defendant’s Constitution and part 1(b)(2) and (3) of the 2nd Defendant’s Electoral Guidelines for Primary Elections which took effect on 7th March, 2022.
F. An Order directing the 1st Defendant to utilise/make use of statutory Delegates as person eligible to vote at the Party’s forthcoming Gubernatorial, National Assembly and State House of Assembly Primary Election/Special State Congresses for nomination of candidates in Akwa Ibom State, in view of the illegalities with which the election of the party’s Ad-Hoc Delegates are fraught.
G. Cost of this action
H. And for such other or further Order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The Originating Summons was supported by a 33 paragraph affidavit deposed to by the 1st Appellant and requisite exhibits and duly served on the Respondents. The 2nd Respondent in response, filed a counter affidavit deposed to by Damilola Akinlonu, a Counsel in the Law Firm of Paul Usoro and Co. The 3rd to 331st Respondents on their part, filed a counter affidavit deposed to by Yusuf Ahmed a litigation Clerk in the Law Firm of Paul Nwoko A Co.
In a judgment delivered on 15th July, 2022, the learned trial Judge found that the suit lacks merit and consequently dismissed it.
Dissatisfied, the Appellants appealed the judgement via Notice of Appeal dated and filed on 25th July, 2022, with four grounds of appeal.
The Appellants’ Brief of Argument is dated and filed on 12th August, 2022. Appellants’ Reply Brief to the 2nd Respondent is dated 31st August, 2022 and filed on 1st September, 2022. Appellants’ Reply Brief to the 3rd to 331st Respondent is dated 31st August, 2022 and filed on 1st September, 2022.
Appellants’ counsel formulated four issues for determination to wit:
1. Whether in determining the Respondents’ Preliminary Objections, the trial Court did not determine and prejudge the substantive Suit at a preliminary/interlocutory stage. (Ground 1)
2. Whether in view of the purport of the Public Notice dated the 29th day of April, 2022, the 2nd Respondent did not deny the Appellants of their right to a fair hearing. (Ground 2)
3. Whether in view of the provisions of the 2nd Respondent’s Constitution and Electoral Guidelines, the 2nd Respondent’s Ward Chapter/Executives in Akwa Ibom State is not the appropriate organ to conduct the 2nd Respondent’s Ward Ad-Hoc Delegates Election of 30th April, 2022, independent of the 2nd Respondent’s Akwa Ibom State Executives. (Ground 3)
4. Whether the provisions of Section 84(3) of the Electoral Act, 2022 is not applicable to the case leading to the instant appeal. (Ground 4)
The 2nd Respondent’s Brief of Argument is dated and filed on 29th August, 2022. 2nd Respondent’s counsel distilled a sole issue for determination to wit’.
“Without prejudice to the 2nd Respondent’s Preliminary Objection submissions in the sister Appeal No. CA/ABJ7CV/826/2022, all the facts and circumstances of this appeal considered, was the trial Court right in resolving the questions for determination as formulated by the Appellants in their amended Originating Summons against them, the Appellants and holding that the ‘suit lacks merit’ (Grounds 1,2,3 and 4)”
The 3rd to 331st Respondents’ Brief of Argument is dated and filed on 29th August, 2022. 3rd to 331st Respondents’ counsel adopted the issues formulated by the Appellants.
A careful consideration of the circumstances of this appeal and the issues distilled by respective counsel reveals that a sole issue calls for determination in this appeal, to wit:
Whether the trial Court was right in resolving the questions for determination as formulated by the Appellants in their amended Originating Summons against the Appellants and holding that the ‘suit lacks merit’
Learned senior counsel for the Appellants submitted that the trial Court breached the Appellants’ right to fair hearing by delving into and determining substantive matters while determining the preliminary issue of locus standi.
Learned senior counsel argued that contrary to the holding of the trial Court, the logical interpretation of the contents of the Public Notice (Exhibit E) is that some unnamed aspirants to the 2nd Respondent’s Ward Ad-Hoc Delegates Election in Akwa Ibom State were screened and cleared as the only persons eligible to contest the said election, contrary to the provisions of the 2nd Respondent’s Constitution and Electoral Guidelines, which never mentioned screening and clearance as an activity that should occur before the Ward Ad-Hoc election, and clearly stated the conditions for eligibility to only consist of: membership of the party, purchase of nomination and expression of interest forms. Counsel posited that the rationale for the conclusion that there was a screening exercise is the use of the word “cleared” in the public notice.
He referred to the cases of NECO v. Tokode (2011)5 NWLR (Pt.1239) 45 at 69, paras b-F; Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt. 1307) Pg.l at 31 para C; Okpalauuzuegbu v. Ezemenari (2011) 14 NWLR (Pt. 1268) 492 at 524-525 paras G-A, amongst others.
Learned senior counsel also argued that the failure of the 2nd Respondent to notify the Appellants and over one thousand other aspirants of any screening exercise wherein the 3rd to 331st Respondents were purportedly screened and cleared as eligible to contest the election, in the process of which the Appellants were excluded from contesting the election amounts to a clear disenfranchisement of the Appellants and a denial of their right to fair hearing.
He relied on Section 36(1) of the 1999 Constitution (as amended); Otapo v. Sunmonu (1987) 2 NWL.R (Pt.58) 587 at 605; and Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394.
Learned Senior Counsel submitted that the actions of the 2nd Respondent in screening candidates and excluding the Appellants from the Ad-Hoc elections breached the provisions of Section 84(3) of the Electoral Act, 2022, which outlaws imposition of nomination qualification except as prescribed under Sections 65, 66, 106, 107, 137, 177 and 187 of the 1999 Constitution (as amended).
Learned senior counsel posited that the decision to conduct and the eventual conduct of the special Ward Congresses by the Akwa Ibom State Chapter/Executives of the 2nd Respondent is in clear breach of the provisions of the 2nd Respondent’s constitution and electoral guidelines which clearly donates that power to the Ward Chapter/Executives of the party in Akwa Ibom State in Article 15(2) of the 2nd Respondent’s Constitution and Part 1, paragraphs 1(b) and 2 of its Electoral Guidelines for Primary elections, 2022.
On the other hand, learned senior counsel for the 2nd Respondent argued that the trial Court was right in holding that the suit lacks merit as the Appellants failed to discharge the onus of proof that is placed on them by Section 131(1) of the Evidence Act 2011.
He referred to the cases of Emenike v. PDP & 3 Others (2012) 12 NWLR (Pt.1315) 556 at 589-590; and Sylva and 1 Other v. INEC & 2 Ors (2018) 18 NWLPt (Pt.1651) 310 at 359 paras G-H.
Learned Senior Counsel submitted that the arguments of the Appellants was a rehash of their allegations at trial to the effect that the State Chapter Exco usurped the powers of the Ward Executives and conducted the Ward Congress Adhoc Elections, allegations which were soundly responded to at trial and which were not proven. He further pointed out that not one Ward Executive gave evidence at trial that their right was eroded and that even the Public Notice which the Appellants relied on in support of their claims do not support their case.
He referred to the case of Adone v. Ikebudu & Others (2001) LPELR- 191(SC) at page 21 paragraphs A-B.
Learned senior counsel also argued that the Appellants misinterpreted a statement in the Public Notice, that is: “list of cleared aspirants seeking election to serve as Ad-Hoc delegates have been forwarded to the Chapter offices of our Party in the 31 LGAs” to mean that there was a secret screening process, an allegation clearly denied before the lower Court via counter affidavit. Counsel pointed out that the clearance in question only consisted of basic confirmatory processes to ensure that persons who partook in the election were members of the party and had purchased the necessary forms. Counsel also stated that none of the Appellants furnish evidence of disenfranchisement after going to venues of the election.
Counsel posited that Section 84(3) of the Electoral Act does not apply to pre-primary ad-hoc delegates elections by political parties and that the Appellants were not excluded from the 2nd Respondent’s Akwa Ibom State ad-hoc Delegates elections held in the various 329 wards on 30th April, 2022.
Learned Senior counsel submitted that the lower Court did not delve into substantive issues at an interlocutory stage.
On his part, learned senior counsel for the 3rd to 331st Respondents argued that the trial Court correctly adopted its findings on preliminary issues that were relevant to substantive issues and did not breach the Appellants right to fair hearing.
Learned senior counsel submitted that the Adhoc Delegates election was conducted in line with the Electoral Act 2022, the 2nd Respondent’s Constitution and Guidelines for the conduct of Primary Election, particularly Article 15(1) and (2)(e) of the 2nd Respondent’s constitution as all the Wards conducted their Ward congresses. Learned Senior counsel argued that the reason the 3rd to 331st Respondents were cleared to partake in the election was that they bought, filled and submitted their nomination forms and that the reason why the Appellants and the purported over 1000 members did not partake was that they didn’t do the same. He pointed to the 1st Respondent’s report on the elections, marked as Exhibit D6 attached to the 3rd to 331st counter affidavit before the lower Court, as further proof of the proper conduct of the election in question.
Senior counsel also submitted that the Guidelines of the party assigned various functions to the National Working Committee, the State Chapter of the Party and other Organs of the party in the adhoc elections. He asserted that the major function of the Ward Executive or Ward Chapter of the 2nd Respondent during the election of the Adhoc Delegates is to organise the Register of the Party and ensure that it is only registered members that partake in the elections.
He posited that Section 84(3) of the Electoral Act is not applicable to the Appellants case as they do not fall under “aspirants” as envisaged under the section. Counsel relied on the case of APC v. Moses (2021) 14 NWLR (Pt.1796) 278 at pp319-320, paras E-B.
Learned senior counsel further argued that it is not the sole and exclusive responsibility of the Ward Executive or Ward Chapter to conduct the Ward Congress for the election of Adhoc Delegates, but that as seen in Paragraph 3 Part 1 of the 2nd Respondent’s Electoral Guidelines, the National Working Committee is charged with the responsibility of recommending a time table for the conduct of Delegates’ election and the Paragraph 1 (6)(v) of Part 1 which provides that the State monitoring committee shall collate the results of all Ad Hoc Delegates Election. He further argued that the 2nd Respondent substantially complied with the relevant provisions of law, its constitution and electoral guidelines in the conduct of the said elections.
In the reply brief to the 2nd Respondent, learned senior counsel for the Appellants submitted that the Appellants as Plaintiffs before the lower Court duly discharged the burden of proof and that the Public Notice constitutes adequate proof of its assertions, which was not successfully impugned by the 2nd Respondent.
He relied on Sections 131 and 132 of the Evidence Act 2011; and Fouani (Nig) Ltd v. Idoko (2020) 2 NWLR (Pt.1709) Pg.401 at Pg.443 paras E-F.
In the reply brief to the 3rd to 331st Respondents, learned senior counsel for the Appellants submitted that the position of the 3rd to 331st Respondents that the role of the Ward Executive Committee in the conduct of special Ward Congresses for the emergence of Ad-Hoc Delegates that will take part in the nomination of Candidates for the Governorship, State House of Assembly and National Assembly is limited to authentication of the Ward register is wrong and at complete variance with the provisions of the 2nd Respondent’s constitution and electoral guidelines.
RESOLUTION OF THE ISSUE
There is no gainsaying the fact that political parties, being creations of law are bound by law and as voluntary associations, are bound by their constitutions which provides guidance on how the affairs of the party is to be conducted. This position of the law was recently restated by the Supreme Court in the case of UBA v. MOGHALU & ORS (2022) LPELR- 57876(SC) Pp 40 – 41, Paras C – E, where per Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC, held thus:
“The law is quite settled that political parties must obey their constitution, guidelines and regulations. In APC vs Karfi & Ors (2017) LPELR-47024(SC) @ 33-34 A-A His Lordship, Okoro, JSC held, inter alia: “The era of recklessness and impunity by political parties is over, it is an aspect of corruption for a political party to disobey its constitution and guidelines in order to impose candidates on the electorate. This Court has taken a firm stand that this must stop. It is in the interest of our nation that political parties observe internal democracy for the smooth running of our democratic process.” In my concurring judgment in Mato Vs Hember & Ors (2017) LPELR-42765 (SC) AT 51 A-C: (2017) 6 SC (Pt. VI) 161, 1 opined thus: “The only way our democratic dispensation can work effectively is where an aspirant for political office, who is qualified to contest an election, is given an even playing field. The failure of internal democracy within our political parties right from the grassroot level eventually leads to instability in the entire political system. The failure of internal democracy is one of the reasons why the Court’s dockets are congested with pre-election disputes. See also Ugwu vs Ararume (2007) 12 NWLR (Pt. 1048) 476 AT 514 b-E; Uzodinma Vs Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 AT 60 C-E; C.P.C. vs Lado (2011)14 NWLR (Pt. 1266) 40 AT 91-92 b-G. The stance taken by the two lower Courts, is fully supported by these authorities.”
See: GANA v. SDP & ORS (2019) LPELR-47153(SC); and PDP & ORS v. OKORO & ANOR (2022) LPELR-57272(CA).
It is trite in our jurisprudence that he who asserts must prove that the fact as asserted, exists in order to be entitled to judgement on the facts asserted. The foregoing is the import of Section 131 of the Evidence Act 2011, which provides:
(1) Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
See; JIMOH v. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46329(SC); MUFUTAU v. ADENIYI (2021) LPELR-55612(CA); and KASUWA v. POLORE (2021) LPELR- 55071 (CA).
In the case of ETIM v. AKPAN & ORS (2018) LPELR-44904(SC), which had to do with primary elections, the Supreme Court held thus:
“In an action of this nature, where the appellant, as plaintiff, seeks declaratory reliefs, he has the burden of satisfying the Court that he is entitled to those reliefs. He must rely on the strength of his own case and not the weakness of the defence, if any. He may not even rely on any lapses or inadequacies in the defence. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt 1119) 361: Emenike vs P.D.P (2012) 12 NWLR (Pt.1315) 556: Okoye vs Nwankwo (2014) 15 NWLR (Pt. 1429) 93.”
A careful consideration of the evidence at trial and the judgement of the lower Court reveals that the lower Court properly evaluated the evidence and arrived at the correct decision. The pith of Appellants grouse which led to the institution of an action before the lower Court, and culminated in this appeal, is the alleged fact that the State Executive allegedly hijacked the function of the Ward Executives and unlawfully conducted the said election. A careful consideration of the evidence before the lower Court however reveals that the Appellants have not satisfactorily proved that the State Executives actually conducted the election as alleged.
The law is trite that he who asserts must prove, but the major plank upon which the Appellants have based their assertion, which is the Public Notice is faulty and their case must of necessity fall. The reason for the foregoing is that a careful consideration of the words used in the Notice, given their ordinary meaning does not in any way show that the State Executives planned to conduct the election in question while excluding the Ward Executives. The notice at best signifies a central mode for the dissemination of information that the election would take place at ward level in line with the provisions of the party.
Appellants also complained of the alleged secret screening of candidates which led to the disenfranchisement of the Appellants. Again, there is no proof of these allegations, other than the words used in the Public Notice. The particular words are: “take notice that list of cleared aspirants seeking election to serve as Ad-Hoc delegates have been forwarded to the Chapter Offices of our Party in all the 31 LGAs.”
In response to this at the lower Court, the Respondents were able to furnish to the Court based on affidavit evidence, a solid explanation of what was meant by screening to the effect that the screening was limited to ensuring that persons who participated in the elections were card carrying members of the party, who had duly purchased expression of interest form to participate in the election. Civil trials are decided on the preponderance of evidence and the lower Court was in my view right in reaching the conclusion that the Appellants did not prove unlawful screening.
In addition to the above, it is also clear that Section 84(3) of the Electoral Act, 2022 would not apply to the facts of this appeal in favour of the Appellants, as that section specifies the electoral positions it applies to, which positions do not include ad-hoc delegate and more importantly, it was not shown that the 2nd Respondents added additional criteria for the election in question.
It is indeed the position of the law that a Court should not delve into substantial issues at an interlocutory stage. That principle does not however apply to this appeal as the trial Court did not delve into substantial issues but adopted exposition used in the resolution of the preliminary issue in resolving the substantial issues. See: AKINRIMISI v. MAERKS NIGERIA LTD & ANOR (2013) LPELR-20179(SC); and AKOMA ORS v. ONWUSIBE (2021) LPELR-55476(CA).
Flowing from the above, the sole issue is hereby resolved in favour of the Respondents and against the Appellants.
In summation, I find the appeal lacking in merit and same is hereby dismissed.
The Judgment of the Lower Court delivered on 15th July, 2022 in Suit No. FHC/ABJ/CS/606/2022 is hereby affirmed.
Parties to bear their respective costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the draft of the Judgment delivered by Jamilu Yammama Tukur, JCA.
My learned brother adequately considered and resolved the issues presented before us for determination. I agree with the reasoning and conclusion of my learned brother that the appeal has no merit, and that same be dismissed. This appeal is accordingly adjudged by me to be without merit. It is hereby dismissed. Judgment of the Federal High Court delivered on the 15th day of July, 2022 in Suit No: FHC/ABJ/606/2022 is hereby affirmed.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother Jamilu Yammama Tukur, JCA.
I am in complete agreement with the reasoning and conclusion reached by His Lordship. The Judgment of the lower Court in Suit No: FHC/ABJ/CS/606/2022 is also affirmed by me. The appeal is dismissed.
I abide by the consequential orders in the Judgment.
Appearances:
AHMED RAJI, SAN, PETER NWATU, W. A. ADENIRAN For Appellant(s)
ABDULAZIZ SANI, SAN, with him, KINGSLEY MAGBUIN FOR 1st RESPONDENT
PAUL USORO, SAN, and O. M. ATOYEBI, SAN, with him, IME EDEM – NSE, IKECHUKWU DURU, I. U. WALI FOR 2nd Respondent
UWEMEDIMO NWOKO, SAN, with him, JOJINTI NYASORE, INYENE EKPOATTAI FOR 3rd – 331 Respondents For Respondent(s)
