WHO CAN CONTEST THE CONDUCT OF A PRIMARY ELECTION?

CASE TITLE: IGWEMMA & ANOR v. OBIDIGWE & ORS (2019) LPELR-48112(SC)

JUDGMENT DATE: 21^ST JUNE, 2019

PRACTICE AREA: ELECTORAL MATTERS.

LEAD JUDGMENT: JOHN INYANG OKORO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Electoral Matters.

FACTS

This is an appeal against the judgment of the Court of Appeal, Enugu Division delivered on 12th April 2019. The facts of the case are that the Appellants filed an Originating Summons as Plaintiffs against 1st -3rd Respondents as Defendants in suit No. FHC/AWK/CS/148/ 2018. In the said Originating Summons, the following questions were formulated:-

1. Whether having regards to the provisions of Section 31 (5) and 31(6) of the Electoral Act 2010 (as amended), the 1st defendant was qualified to be nominated as the All Progressive Grand Alliance (APGA) candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
2. Whether having regard to the provisions of Section 87(1), 87(2) 87(4) (c)(ii) of the Electoral Act 2010 (as amended), Rule 10(1) and (2) of the APGA Electoral Guidelines for Primary Election 2018, the 2nd Plaintiff is the validly nominated candidate of the 2nd defendant to represent Anambra East and West Federal Constituency in 2019 General Election.
3. Whether having regard to the provisions of Section 87(1), 87(2) 87(4)(c)(ii) of the Electoral Act 2010 (as amended) Rule 10(1) and (2) of the APGA Electoral Guidelines for Primary Election 2018, the 2nd defendant ought not to have submitted the name of the 2nd Plaintiff to the 3rd defendant as its validly nominated candidate of the 2nd defendant to represent Anambra East and West Federal Constituency in 2019 General Election.

​The Appellants also sought some declaratory reliefs. Upon being served the Originating Summons, all the respondents filed memoranda of conditional appearances as they felt the appellants who did not take part in the primaries had no locus standi to institute the action. They, however, followed it up with the filing of their respective counter-affidavits. The 1st and 2nd Respondents also filed a preliminary objection. In the counter-affidavits relied upon by the 1st and 2nd Respondents, the judgment in suit No. OT/194/2018 delivered by Amaechina, J. of the Otuocha Judicial Division, Anambra State High Court of Justice was referenced and exhibited. It was contended for the 1st and 2nd Respondents that the aforesaid judgment of the Otuocha High Court had found that the alleged false information on age declaration was not proved and that the 1st Respondent was qualified to contest the subject election.

The 1st Respondent contended in his defence that the judgment in suit No. OT/194/2018 was a judgment in rem which binds the Appellants even though they were not parties to the action leading to the judgment. The 2nd Respondent on its part raised the point in its Notice of Preliminary Objection that suit no. FHC/AWK/CS/148/2018 was an abuse of the Court process. The 2nd Respondent further contended that the originating summons filed by the Appellants was not endorsed as mandatorily required by the Sheriffs and Civil Process Act and that the said originating summons was therefore incompetent.

The Federal High Court heard all the objections together with the main matter and on 6th February 2019 delivered a Ruling dismissing the suit of the Appellants, relying only on one ground out of the various grounds raised by the 1st and 2nd Respondents in their various Notices of Preliminary Objection. Dissatisfied with the above decision by the learned trial Judge, the Appellants appealed to the Court of Appeal which affirmed the decision of the Federal High Court.  Again, the appellants, not being satisfied with the said judgment appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

1. Whether the Court below was not in error when it affirmed the decision of the trial Court that suit No. FHC/AWK/CS/148/2018 constituted an abuse of court process in view of the judgment in suit No. OT/194/2018.
2. Whether the non-service of the 2nd Respondent’s Notice of Contention on the Appellants did not constitute a breach of their fundamental right of fair hearing.

DECISION/HELD

On the whole, the Court found no merit in the appeal and accordingly dismissed same.

RATIOS:

• ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Whether a party who did not participate in a primary election can bring an action against it
• JUDGMENT AND ORDER – JUDGMENT IN REM: Nature and the binding effect of a judgment in rem; whether an issue which has been determined by a judgment in rem can be re-litigated as a fresh action
• JURISDICTION – JURISDICTION OF THE SUPREME COURT: Whether the Supreme Court has jurisdiction to hear appeals directly from decisions of the High Court