Legalpedia Citation: (2023-03) Legalpedia 81924 (SC)

In the Supreme Court of Nigeria

Holden at Abuja

Tue Mar 7, 2023

Suit Number: SC.CV/142/2023

CORAM

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE SUPREME COURT

CHIMA CENTUS NWEZE JUSTICE SUPREME COURT

AMINA ADAMU AUGIE JUSTICENSUPREME COURT

ADAMU JAURO JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM JUSTICE SUPREME COURT

PARTIES

SEN. (DR.) ITA SOLOMON ENANG

APPELLANTS

1. MR. AKANIMO ASUQUO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

​The Appellant, as a member of the 2nd Respondent, All Progressives Congress (APC), was a candidate in the party’s gubernatorial primary election scheduled to hold on 26th May 2022 to select the party’s flagbearer for the Governorship of Akwa Ibom State in the 2023 general elections. According to him, at all times material to the conduct of the election, the 1st respondent was a full-fledged card-carrying member of the Peoples Democratic Party (PDP) and  was given a Provisional Clearance Certificate by the PDP to contest and did in fact contest the PDP Gubernatorial Primary Election which took place in Akwa Ibom State.

He and the 1st respondent both participated in the primary elections on 26th May 2022 and he (1^st Respondent) was declared the winner.

It was also his contention that there were substantial irregularities and non-compliance with the provisions of the Electoral Act and the party’s constitution and guidelines in the conduct of the primary. He claimed he wrote petitions and letters but they were met with silence. This was what prompted the institution of the suit before the trial Court.

The defence of the 1st respondent was that he resigned from Peoples Democratic Party (PDP) on 1st May 2022 and registered as a member of All Progressives Congress (APC) on 5th May 2022. He denied participating in the Akwa Ibom Gubernatorial Primaries on 25th May 2022 on the Platform of the PDP. That he obtained the necessary waiver from the National Secretary of the party, Senator Iyiola Omisore vide a letter dated 12th May 2022. He also relied on his membership card, proof of payment of membership dues and purchase of expression of interest and nomination forms. He stated that necessary notice of the rescheduled election was issue to the 3rd respondent and that the election was peaceful. The trial court saw merit and granted all reliefs.

On Appeal, The 1st respondent was dissatisfied with the judgment and appealed to the Court of appeal. In a considered judgment delivered on 19th January 2023, the 1st respondent’s appeal was allowed on the ground that the appellant’s cause of action related to membership of a political party, which is exclusively within the domestic affairs of the party and therefore not justiciable. Although the appeal was allowed, the Court resolved 7 of the 10 issues for determination against the 1st respondent and in the appellant’s favour.​

The appellant is dissatisfied with the whole judgment and has instituted the instant appeal. The 1st respondent is equally dissatisfied with the part of the judgment resolving issues 1, 2, 3, 6, 7, 8 and 10 against him and appealed against the decision. A separate record was compiled and the appeal was given Appeal No. SC/CV/179/2023. The appeal in all respects is a cross-appeal to the instant appeal and it was so treated.

HELD

Appeal dismissed (and Cross-Appeal Struck Out)

ISSUES

Ø Whether the learned Justices of the Court of Appeal were right when they held that the grant of waiver to a member of the party is a pure issue that relates to the internal affairs of the 2nd Respondent for which the Court is not expected to meddle into and that the 2nd Respondent’s refusal to challenge the authenticity of the waiver gave validity to it?

Ø Whether the learned Justices of the Court of Appeal were right when they held that the purported waiver granted the 1st Respondent was properly done and that its effect is to place the 1st Respondent in the same position as all other members of the party and as if he has fulfilled all the requirements of being a member and Aspirant, as spelt out in the constitution of the party, the Electoral Act, 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

RATIONES DECIDENDI

ORIGINATING PROCESS – SERVICE OF ORIGINATING PROCESS IN FEDERAL HIGH COURT NOT SUBJECT TO SHERIFF AND CIVIL PROCESS ACT

…Furthermore, the appellant’s issue 1 has been conceded by the respondents having regard to the extant position of the law as espoused by this Court in recent decisions to the effect that the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act do not apply to the service of Originating Processes in the Federal High Court. See: SC/CV/1402/2022: PDP vs Engr. John Ibrahim Uche & 2 Ors. (unreported) delivered on 6th January 2023 and SC/CV/1482/2022: Hon. Olobatoke Segun Samuel Vs APC & 2 Ors. (unreported) delivered on 13th January 2023.  – Per K. M. O. Kekere-Ekun, JSC

ORIGINATING PROCESS – CLAIM IN PLAINTIFF’S ORIGINATING PROCESS DETERMINES COURT’S JURISDICTION

In order to properly consider this issue, it is necessary to examine the questions raised and reliefs sought by the appellant vide his Amended Originating Summons to determine the nature of his cause of action. This approach is in accord with the settled position of case law that it is the plaintiff’s claim as contained in his originating processes that determines the Court’s jurisdiction to determine the cause or matter. See: Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 427 @ 588; Adeyemi vs Opeyori (1976) 9 – 10 SC 31; Elabanjo vs Dawodu (2006) 15 NWLR (Pt. 1001) 75; Waziri vs P.D.P. (2022) LPELR – 59174 (SC) @ 38 B – F. – Per K. M. O. Kekere-Ekun, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. The Constitution of the All Progressive Congress party.
3. APC Guidelines laid down for the conduct of the primary Elections.
4.  Electoral Act, 2022.

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