Njideka Ezeigwe V. Chief Benson Chuks Nwawulu & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

S. ONNOGHEN, J.S.C.

The appeal is against the judgment of the Court of Appeal, Holden at Enugu in appeal No. CA/E/406/2007 delivered on the 10th day of July 2008 in which the court reversed the decision of the Federal High Court, Holden at Enugu in suit No. FHC/EN/CS/79/2007 to the effect that the court had no jurisdiction to entertain the matter as constituted. The ruling of the trial court giving rise to the appeal before the lower court was rendered on the 2nd day of April, 2007; the facts for the case are largely undisputed.

On the 23rd day of March 2007 the 1st respondent, as plaintiff caused to be issued an originating summons against the 2nd defendant therein for the determination of the following questions:-

“1. Whether the Defendant’s statutory power to substitute a nominated candidate of a political party, under section 34 of the Electoral Act 2006, is qualified or absolute

2. Whether the Defendant has power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead
3. Whether the Defendant can substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons
4. Whether in view of section 36 of the Constitution of the Federal, Republic of Nigeria 1999 and other rules of law relating thereto, the Defendant can fairly and constitutionally determine the cogency and validity of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate
5. Whether the legislative innovation introduced for the first time by section 34 of the Electoral Act is not aimed at deepening and strengthening democracy in Nigeria in relation to substitution of a nominated candidate in an election

In view of the answers to Questions 1, 2, 3, 4 and 5 above:

6. Whether the act of the Defendant in substituting the plaintiff, as the duly nominated candidate of Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru 1 State Constituency of Anambra State in the manner it did is not ultra vires Defendants power, undemocratic, arbitrary, unlawful; illegal, unconstitutional, null and void”

The reliefs claimed by the plaintiff are as follows:-

“1. A DECLARATION that the Defendant’s statutory power to substitute a nominated candidate of a political party under section 34 of the Electoral Act 2006, is qualified AND not absolute.

2. A DECLARATION that the Defendant has NO power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.
3. A DECLARATION that the Defendant CANNOT substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
4. A DECLARATION that in view of section 36 of the 1999 Constitution the Defendant CANNOT fairly and constitutionally determine the cogency and verifiability of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate.
5. A DECLARATION that the legislative innovation introduced by section 34 of the Electoral Act is aimed at deepening and sustaining Nigeria’s democracy in relation to substitution of a nominated candidate in an election.
6. A DECLARATION that the substitution of the plaintiff by the Defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary, unlawful, illegal, unconstitutionally null and void.
7. AN ORDER setting aside the purported substitution, same being in excess of the statutory powers of the Defendant, in abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.
8. AN ORDER OF MANDATORY INJUNCTION directing the Defendant to restore the plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State.”

The above reliefs are said to be grounded on the following:-

“1. Section 34 of the Electoral Act 2006 only empowers the Defendant to substitute nominated candidates not later than 60 days to election and upon an application giving cogent and verifiable reasons to so do.

2. The purported substitution of the plaintiff by the Defendant is illegal having been effected less than 60 days to the election, when the plaintiff is not dead.
3. Article 13(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004 guarantees the right of the plaintiff to freely participate in the government of Nigeria by voting for representatives or presenting himself to be voted for.
4. Being a decision seriously affecting the Plaintiff’s right, the Defendant acted in violation of section 36 of the Constitution of the Federal Republic of Nigeria 1999 and the duty on the Defendant to act fairly when it failed to hear the plaintiff or require an input from the plaintiff on the cogency and verifiability of his substitution.
5. The substitution of the plaintiff is arbitrary, unfair, unreasonable, procedurally and substantially ultra vires the statutory powers vested in the 1st Defendant by the Electoral Act and based on improper motive.
6. The Defendant lacks the power to proceed contrary to the provisions of the Constitution and the Electoral Act 2006 and its compliance with the requirement of cogency and verifiability of substitution of a nominated candidate is subject to judicial scrutiny, being a statutory duty.”

The originating summons was supported by a 22 paragraphed affidavit as well as an 8 paragraphed Affidavit of Urgency. There was also a further affidavit filed on 5th day of April, 2007.

By an application filed on 11/4/07, the 2nd and 3rd respondents applied to be joined in the action which application was subsequently granted resulting in another further affidavit filed by the plaintiff on 18th day of April, 2007.

On the 24th day of April, 2007 counsel for the 2nd and 3rd defendants filed a motion on notice at the trial court praying the court for “AN ORDER striking out/ dismissing this suit on the ground that this Honourable court lacks the jurisdiction to grant the reliefs which the plaintiff is seeking.”

It is the ruling on the above motion that resulted in the appeal to the lower court and subsequently the further appeal to this Court.

There are three appeals as a result of the judgment of the lower court delivered on the 10th of July, 2008 reversing the ruling of the trial court. The three defendants/respondents before the lower court have each appealed to this Court which appeal was, by an order of this Court consolidated.