CASE TITLE: ENANG v. ASUQUO & ORS (2023) LPELR-60042(SC)
JUDGMENT DATE: 7TH MARCH, 2023
PRACTICE AREA: ELECTORAL MATTERS
LEAD JUDGMENT: KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on the justiciability of matters relating to the grant of waiver by a party/membership of a political party.
FACTS:
This appeal is against the judgment of the Court of Appeal Abuja Division.
The appellant, as a member of the 2nd Respondent, 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 People’s Democratic Party (PDP). He 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 on 25th May 2022. To his greatest surprise, the 1st respondent surfaced on 26th May 2022 to contest the 2nd respondent’s primary. He participated in the said election in which the appellant was also a contestant and 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 alleged that the Electoral Panel sent from Abuja to conduct the primary was waylaid and blocked on their way to the venue. It took the intervention of the appellant who interacted with the Police and Officers of the Department of State Security (DSS) to ensure that they were kept in DSS custody for their safety. By midnight on 26th May 2022, when he made enquiries from the Chairman of the panel as to the likely re-scheduling of the election due to the late hour and concerns for safety, the Chairman initially informed him that he had instructions not to conduct the election after midnight. He later informed him that he had been instructed to proceed to the party secretariat at No. 6 Ekpo Abot Street, Uyo to conduct the election. He thereafter advised the Chairman to call all the aspirants and delegates to intimate them of the development since most of them had left.
He opined that it was unsafe to conduct the election at that hour and a postponement was suggested. About 30 minutes after he got home, he received a call from the party Secretariat that the Chairman had arrived at the secretariat and was ready to conduct the election. Despite his objection to the delegates’ list sought to be used and the fact that there were no INEC officials or Police Officers present, the Chairman was set to conduct the election. He left the venue in protest and was later informed by his agent that the 1st respondent was returned as the winner with 1227 votes while he was allotted 34 votes.
The petition he wrote to the 2nd respondent’s appeal committee and letters written to other organs of the party were met with silence. This was what prompted the institution of the suit before the trial Court vide an Originating Summons. The 2nd respondent filed a preliminary objection with a supporting affidavit. Both 1st and 2nd respondents also filed counter affidavits to the Amended Originating Summons with written addresses. The appellant responded to the respective processes via counter-affidavit to the preliminary objection and further affidavits in reaction to the counter-affidavits along with written addresses. The 3rd respondent did not file any process.
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 the 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. He obtained the necessary waiver from the National Secretary of the party, Senator Iyiola Omisore vides 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 issued to the 3rd respondent and that the election was peaceful.
The 2nd respondent confirmed the 1st respondent’s membership of the party and also confirmed that he was granted a waiver by its National Working Committee vide the letter referred to by the 1st respondent dated 12th May 2022. It was averred that the 1st respondent’s name only appeared on the ballot paper of the PDP because it had been printed before his resignation from the party. On the whole, the 2nd respondent supported the defence of the 1st respondent.
On 14th November 2022, the learned trial Judge delivered a separate ruling dismissing the 2nd respondent’s preliminary objection on the ground that Sections 97 and 98 of the Sheriffs and Civil Process Act as regards the requirement for the issuance and service of Originating Summons out of jurisdiction, is inapplicable to the Federal High Court. In its judgment on the substantive suit, it found merit in the appellant’s case and granted all his reliefs. The 1st respondent was dissatisfied with the judgment and appealed to the Court of Appeal. In a considered judgment, the appeal was allowed. Dissatisfied, the appellant appealed to the Supreme Court. There was also considered together with the main appeal, a cross-appeal.
ISSUES:
The appeal was considered on the following sole issue:
“Whether the learned Justices of the Court of Appeal were right when they held that the grant of a 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?”
DECISION/HELD:
In the final analysis, the appeal was dismissed. Upon the dismissal of the main appeal, the cross-appeal was held to have become academic and the same was struck out.
RATIOS:
- ELECTORAL MATTERS – MEMBERSHIP OF A POLITICAL PARTY: Whether membership of a political party is the internal affair of a party and same is not justiciable
- ELECTORAL MATTERS – POLITICAL PARTY: Whether issues bordering on grant or refusal of waiver by a political party to its member(s) to contest for any elective position is within the internal affairs of the party
- COURT – JURISDICTION: Importance of jurisdiction; effect where a Court lacks jurisdiction over a matter
- PRACTICE AND PROCEDURE – ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Whether Sections 97 and 98 of the Sheriffs and Civil Process Act apply to proceedings in the Federal High Court
