Legalpedia Citation: (2023-02) Legalpedia 25956 (CA)

In the Court of Appeal

Holden at Abuja

Fri Feb 24, 2023

Suit Number: SC.CV/94/2023

CORAM

JOHN INYANG OKORO JUSTICE SUPREME COURT

AMINA ADAMU AUGIE JUSTICE SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM JUSTICE SUPREME COURT

PARTIES

VICTORIA OTANYA ODEY

APPELLANTS

1. ALL PROGRESSIVES CONGRESS (APC)
2. REGINA ANYOGO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant’s claimed that the Primary Election earlier scheduled to hold on 26/5/2022, could not hold due to the late arrival of election materials, and it was rescheduled for the next day 27/5/2022; that on the said 27/5/2002, first Respondent held the Primary Election in Ogoja, outside the Constituency, contrary to the requirement of the Electoral Act, which says Primary Elections shall be conducted in a location within the geographical space of each Constituency. She went to the venue in Ogoja, but was locked out, and the second Respondent was returned as winner of the Primary Election.

She further claimed that the 2^nd Respondent is not a member of the 1^st Respondent and that being the only qualified aspirant for the Primary Election, she, the Appellant, should be declared winner of the Primary Election.

The first and second Respondents raised a Preliminary Objection at the trial Court.

The Suit failed at the trial Court and was dismissed. On Appeal, the Appellant raised the issue of the 2^nd Respondent participating in two different elections and the Court of appeal declared that it was a fresh issue. The Appeal succeeded in part notwithstanding even though the Judgment of the trial Court dismissing the claims of the Appellant stands.

Both sides are dissatisfied and are now before this Court. The Appellant filed the main Appeal before this court and the first and second Respondents cross-appealed against the decision that the Appellant had the locus standi to institute the said action.

HELD

Appeal allowed in part and Cross Appeal struck out.

ISSUES

Whether first Respondent even had a valid Primary Election in the first place.

RATIONES DECIDENDI

INEC – INEC HAS THE RIGHT TO BE NOTIFIED OF AND TO MONITOR PRIMARY ELECTIONS

By the combined provisions of Sections 82(5) and 84(13) of the Act, the failure of a Political Party to notify INEC of any of the events set out in Section 82 (1) of the said Act, including “nominating candidates for any of the elective offices specified under this Act”, will amount to a fundamental non-compliance with the Electoral Act, which non-compliance, nullifies the event and its outcome.

Furthermore, by the provisions of Section 84(1) of the Electoral Act, it is the requirement of the law that the Primary Election of Political Parties SHALL be monitored by INEC. In other words, Section 84(1) of the Electoral Act read together with the provisions of Section 82(1) of the Act demands the following:

– That for the Primary Election of any Political Party to be considered valid, Notice of such Primary Election must be given to the electoral umpire, which in this case is INEC, by the relevant Political Party; and

– That for the Primary Election of any Political Party to be considered valid in law, such exercise must be shown to have been monitored by INEC.

To this extent, while Section 82(1) imposes the duty to give notice to INEC on the Political Parties, Section 84(1) of the said Electoral Act, imposes a duty on INEC to monitor Primary Elections of the Political Parties, provided that INEC has notice of the event. So, where adequate notice is given to INEC by the Political Party, the said Party is deemed, on its part, to have complied with the requirements of the law, hence, the duty to monitor such election falls on INEC. – Per A. A. Augie, JSC

ASPIRANT – ONLY AN ASPIRANT HAS THE RIGHT TO CHALLENGE THE OUTCOME OF A PRIMARY ELECTION

On the Cross-Appeal, decisions of this Court abound on the trite position that it is only an aspirant who took part in the primary election who is authorized to file an action to challenge the outcome of the primary election. See Shinkafi v. Yari (2016)7 NWLR (Pt.1511) 340; Daniel v. INEC (2015) 9 NWLR (Pt.463) 113; Eze v. PDP & Ors. (2018) LPELR-44907 Waziri v. PDP & Anor (2022) LPELR-59174 (SC). – Per J. I. Okoro, JSC

CASES CITED

STATUTES REFERRED TO

1. Electoral Act 2022
2. All Progressives Congress Guideline
3. All Progressives Congress Constitution
4. Constitution of the Federal Republic of Nigeria 1999 (as amended)
5.  Sheriffs and Civil Processes Act

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