Peoples Democratic Party V. Obayemi Toyin & Ors (2005)
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FATIMA OMORO AKINBAMI, J.C.A.
This is an appeal against the decision of the Federal High Court II, Ekiti Judicial Division, Ado-Ekiti, presided over by Honourable Justice Taiwo Obayomi Taiwo, delivered on the 4th July, 2016, wherein the Court below granted into all the reliefs/prayers and submissions of the Plaintiff (hereinafter referred to as 1st Respondent in this appeal).
The Appellant, dissatisfied with the decision, promptly filed a notice of appeal containing 6 grounds of appeal against the judgment on 10th day of July 2016.
BACKGROUND FACTS
By Originating Summons dated and filed on the 10th of April 2015 and later amended on 30th March, 2016, pursuant to Order of the Court below, the 1st Respondent at pages 96-255 of the record approached the lower Court for the determination of the following questions and reliefs as set below:
I. Whether the judgment in Suit No: FHC/AD/CS/17/15 having been procured by fraud is not liable to be set aside by this Honourable Court.
II. Whether by virtue of the combined provision of Section 31 (5) & (6) of the Electoral Act 2010 (as
amended) the 1st Defendant was not bound to disqualify the 2nd Defendant as the candidate of the 3rd Defendant for Ado-Ekiti Constituency 1 of Ekiti State.
III. Whether by virtue of Paragraph (32)(d) of the Electoral guidelines for primary election 2014 of the Peoples Democratic Party and Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 4th Defendant is eligible to contest the Ado-Ekiti Constituency 1 in the Ekiti State House of Assembly.
IV. Whether by virtue of the provisions of Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 2nd Defendant is disqualifies as the candidate of the 3rd Defendant to contest for the House of Assembly election in Ado-Ekiti Constituency 1 of Ekiti State in the 2015 State House of Assembly Election.
V. Whether the 4th Defendant who did not obtain any form to contest or participate in the primaries of the 3rd Defendant in Ado-Ekiti Constituency 1 of Ekiti State except being an agent of the 2nd Defendant at the primaries of the 3rd Defendant held on 29th November, 2014 in contravention of Sections 31 and 87 of the Electoral Act,
2010 (as amended) is not disqualified to contest for Ado-Ekiti Constituency 1 of the Ekiti State House of Assembly in 2015 House of Assembly Election.
VI. Whether the 2nd Defendant is eligible to contest election into the Ekiti State House of Assembly Election having supplied false information to the 1st Defendant in INEC form CF. 001 and/or affidavit in support of personal particulars deposed to by him and fake West African Examination Council result submitted by him to the 1st Defendant contrary to S. 31(2) and (5) of the Electoral Act 2010 (as amended).
VII. Whether pursuant to paragraph 32(d) of 3rd Defendants Electoral guidelines for primary elections 2014 and the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended), the Plaintiff should not be declared the candidate of the 3rd Defendant to contest for the House of Assembly Elections being the sole candidate of the 3rd Defendant having polled the highest number of valid vote cast in the primary election conducted by the 3rd Defendant, in view of the provision of Section 87 of Electoral Act 2010 (as amended).
RELIEF SOUGHT
A declaration that the 2nd Defendant by virtue of the provisions of Section 31(5) & (6) of the Electoral Act 2010 (as amended), and the judgment in petition No: NSHA/EPT/REPT/07/2011 between Ojeh Daniel Donald & Anor v. Hassan Anthony Saleh & 4 Ors disqualified from putting himself forward as the candidate of the 3rd Defendant in the 2015 Ado-Ekiti Constituency 1, House of Assembly Election.
II. A declaration that the 2nd Defendant stands disqualified from presenting himself as the candidate of the 3rd Defendant in the 2015 Ado-Ekiti Constituency 1, House of Assembly election by virtue of the presentation of forged document to the 1st Defendant for the Ado-Ekiti Constituency 1, House of Assembly Election.
III. A declaration that the clearance given to the 2nd Defendant is null void and of no effect whatsoever in as much as it failed to comply with the Electoral guidelines of the PDP and the Constitution provision.
IV. A declaration that all votes cast in favour of the 2nd Defendant on the 29th of November, 2014 during the 3rd Defendant primaries held for the Ado-Ekiti constituency 1, of House of Assembly Ekiti State are all wasted votes.
A declaration that the 2nd Defendant is disqualified as the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election by virtue of the fact that the information contained in the affidavit deposed to by him in INEC form is false.
VI. A declaration that the Plaintiff is the winner of the primary election held on 29th of November, 2014 and the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election being the sole candidate of the 3rd Defendant having polled the highest number of valid vote cast in the primary election in view of the provisions of Section 31 and 87 of Electoral Act (as amended).
VII. An order directing the 1st Defendant to declare the Plaintiff as the duly nominated candidate of the 3rd Defendant in the primaries of 29th November, 2014 for the Ado-Ekiti Constituency 1, of Ekiti State having polled the highest number of valid vote and equally participated in all stages of the primaries.
VIII. An order disqualifying the 2nd Defendant as the
candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election.
IX. A declaration that the 4th Defendant having failed, neglected and/or refused to obtain nomination form or participate in the primaries of the 3rd Defendant in Ado-Ekiti Constituency 1, of Ekiti State except being an agent of the 2nd Defendant at the primaries of the 3rd Defendant held on 29th November, 2014 in contravention of Section 31 and 87 of the Electoral Act, 2010 (as amended) and paragraph 32(d) of the electoral guidelines for primary elections 2014 of the Peoples Democratic Party and Section 66(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria(as amended) is disqualified to contest for Ado-Ekiti constituency of the Ekiti State House of Assembly in 2015 House of Assembly Election.
X. An order setting aside the judgment in Suit NO: FHC/AD/CS/17/15 same HAVING BEEN PROCURED BY FRAUD.
XI. An order directing the 1st Defendant to remove the name of the 4th Defendant in its record as the candidate of the 3rd Defendant to contest for the House of Assembly Election in Ado-Ekiti Constituency 1,
of Ekiti State in the 2015 House of Assembly and replace same with the name of the Plaintiff.
XII. An order that the Plaintiff is the candidate of the 3rd Defendant in Ado-Ekiti Constituency 1, of Ekiti State in the 2015 House of Assembly Election.
XIII. An order directing the 1st Defendant to cancel the Certificate of Return issued to the 4th Defendant and issue a Certificate Return to the Plaintiff Obayemi Toyin forthwith as the Honourable member in the House of Assembly for Ado-Ekiti Constituency 1, of Ekiti State and be sworn in by the Speaker of the House.
In reaction to the Originating Summons, the Appellant, the 3rd and 4th Respondents raised preliminary objection and counter affidavits to the Originating Summons coupled with written addresses duly filed as enjoined by the rules of the trial Court to the suit wherein the jurisdiction of the trial Court was vehemently challenged.
The 1st Respondent filed further affidavit and joined issues with the Appellant.
1ST RESPONDENTS CASE ON AFFIDAVIT EVIDENCE
The casus belli of the 1st Respondents in the Originating Summons was that he contested
3rd Respondent in the primaries election conducted under the aegis cum political platform of the Appellant into the Ekiti State House of Assembly Election, Ado-Ekiti Constituency 1, in the 2015, he admitted that though lost the primaries election against the 3rd Respondent.
That the 3rd Respondent won the primaries by a margin of 34 votes to his own 1 vote refusing to recognize that the 4th Respondent equally contested in the primaries.
1st Respondent was embittered that the 4th Respondent who in his stand did not participate in the primaries was substituted for the 3rd Respondent by the Appellant rather than himself-1st Respondent who ought to be substituted and sponsored by the Appellant as its candidate at the election to the Ekiti State House of Assembly, 2015.
APPELLANTS CASE ON AFFIDAVIT EVIDENCE
The Appellant in its pleadings before the trial Court stated that 4th Respondent actively participated in the primary election, scored the majority of the vote declared at the primaries but presented the name of the 3rd Respondent as the candidate of the Appellant, the act and action which was subsequently reversed by
order of the Federal High Court, Abuja, Suit No: FHC/ABJ/CS/125/2015 upon being challenged by the 4th Respondent herein with the knowledge of the 1st Respondent at all the material time the matter till the matter was finally determined in favour of the 4th Respondent.
That the 3rd Respondent applied to set aside the decision handed down by the Federal High Court in Abuja, but failed as the 3rd Respondents application was dismissed.
DECISION OF THE LOWER COURT
- The trial Court set aside the decision of the Federal High Court Abuja in Suit No: FHC/ABJ/CS/125/2015, on the ground that same was procured by fraud and that Appellant lacked locus standi to maintain the suit.
- That the 1st Respondent is the candidate of the Appellant.
- The trial Court nullified the election of the 3rd and 4th Respondent into the Ekiti State House of Assembly on the ground that he did not participate in the primary election.
- That the 3rd Respondent haven being disqualified, the 1st Respondent became the sole candidate of the Appellant at the primary election.
- That the 2nd Respondent shall issue a Certificate of
Return to the 1st Respondent.
- That the 4th Respondent shall return to the Ekiti State House of Assemblys coffers, all monies received, salary, constituency allowance and so on.
- The trial Court granted more than the reliefs prayed by the 1st Respondent in his application.
- That the gratuitous reliefs not prayed but granted cannot of cause be granted as an ancillary relief.
ISSUES FOR DETERMINATION
- Whether the trial Court has jurisdiction to entertain the action against the Appellant in the circumstance of this case.
- Whether the trial Court has the vires to set aside the decision in Suit No: FHC/ABJ/CS/125/2015 on grounds of fraud, or otherwise, in the circumstance of this case.
- Whether the failure of the trial Court to hear the Appellant on the issue of locus standi to maintain Suit No: FHC/ABJ/CS/125/2015 and resolution of the issue suo motu has not occasioned a miscarriage of justice.
- Whether the trial Court was right when it granted all the reliefs of the 1st Respondent and nullified the election of the 4th Respondent in the circumstance of this case.
- Whether the trial Court was right to foist a
candidate, the 1st Respondent on the Appellant in the circumstance of this suit.
MARRIAGE OF ISSUES TO THE GROUNDS OF APPEAL
Issue no 1 is covered by grounds 1 and 3, issue no 2 is covered by grounds 2, 4 and 5, issue no 3, 4, and 5 covered by grounds 5 and 6.
ARGUMENT ON ISSUES
This appeal stems from the judgment delivered by Honourable Justice Taiwo Obayomi Taiwo .J. in the Federal High Court, Ado-Ekiti on the 4th July, 2016.
The Appellant adopts the reasoning and arguments canvassed by the 4th Respondent/Appellant in CA/EK/76/2016 herein in his Appellant Brief of Argument dated and filled 30th April, 2017.
I have carefully perused the Appellants Brief of Argument and Respondents Brief of Argument.
I have decided this appeal by adopting my decision in Appeal No: CA/EK/76/2016.
Other Citations: (2005)LCN/1781(CA)
