Importance of Time in Pre-Electoral Matters; Effect of Failure of Compliance

CASE TITLE: ONAMADE v. APC & ORS (2022) LPELR-58719(CA)

JUDGMENT DATE: 10TH OCTOBER, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Pre-election Matters.

FACTS

The Appellant, a member of the All Progressives Congress (APC) in Ward D2, Ikorodu II State Constituency, Lagos State, was desirous of contesting the 2023 election under the banner of his party to represent his constituency in the Lagos State House of Assembly and thus was one of the aspirants at the party’s primary election which took place on 27/05/2022. In the course of time, he saw the posters of the 3rd Respondent littering public places across the Ikorodu II constituency as an aspirant under the All Progressives Congress in the said constituency.

Prior to that period, the Appellant knew the 3rd Respondent to be a card-carrying member of the Peoples Democratic Party (PDP), a fact which was confirmed by the Ward and Local Government Chairmen of the PDP, vide exhibits 4 and 5 annexed to his affidavit in support of the Originating Summons. The 3rd Respondent was screened and cleared by the 1st Respondent to contest the primary election even though his name was not on the Register of members of the 1st Respondent at any Ward in Ikorodu Local Government. It was the case of the Appellant that failure of the 3rd Respondent to resign his membership of the PDP in writing renders his membership of the APC, if any, a nullity because he cannot remain a member of the PDP and at the same time contest election under the APC.

The Appellant wrote letters to the relevant APC authorities seeking the disqualification of the 3rd Respondent from contesting the said primary election but nothing was done. It was also the case of the Appellant that the 3rd Respondent recruited and imported political appointees, who were not eligible to vote under the Electoral Act, as delegates. Further that after the primary election, the votes were not counted at the venue, rather, it was taken elsewhere, and he only got to know about the result later via online publications such as Facebook and WhatsApp.

In order to ventilate his grievances with the primary election conducted by his party with the 3rd Respondent as an aspirant, he commenced an action at the Federal High Court, Lagos, vide an Originating Summons filed on 5th July, 2022.

In response to the processes served on him, the 3rd Respondent not only joined issues with the Appellant on the substantive action, he also objected to the jurisdiction of the trial Court to entertain the action by filing a Notice of Preliminary Objection.

In a considered Ruling/Judgment delivered on 04/08/2022, the trial Court upheld the preliminary objection and struck out relief 2 claimed by the Appellant, wherein he challenged the 3rd Respondent’s membership of the 1st Respondent. The trial Court proceeded to dismiss the Appellant’s substantive action on the merits.

Dissatisfied, the appellant appealed. The respondents filed a preliminary objection challenging the competence of the appeal.

ISSUES FOR DETERMINATION

The preliminary objection was considered on whether the Court had jurisdiction to consider the appeal

The appeal was determined based on the following issues for determination;

1. Whether the trial Court was right when it held that the suit of the Appellant was statute-barred.

2. Whether the uncontroverted evidence that the 1st Respondent breached the provision of Section 84 of the Electoral Act, 2022 in respect of the selection and nomination of the 3rd Respondent did not entitle the Appellant to the reliefs sought.

3. Whether the finding that the Appellant’s deposition that he became aware of the occurrence of event leading to this suit on 25th June, 2022 is an afterthought as held by the trial Court is borne out of any cogent evidence on Record and if not, whether the trial Court can resort to speculation on same.

DECISION/HELD

The preliminary objection was upheld and the originating summons at the trial Court was struck out. Considering the appeal on the merit, same was dismissed for want of merit.

RATIOS:

• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Time within which to file a pre-election matter
• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Effect of failure to comply with the time frame for filing of pre-election matters
• ACTION – ORIGINATING PROCESS(ES) – Requirement(s) for an originating process to be competent; effect of failure
• ACTION – CONSISTENCY IN PRESENTATION OF A CASE – Whether a party is permitted to approbate and reprobate at the same time