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Validity of a Primary Election Not Conducted by the Party’s NWC but Monitored by INEC

Date:

 CASE TITLE: APC v. NELSON & ORS (2023) LPELR-59758(CA)

JUDGMENT DATE: 6TH FEBRUARY, 2023 

JUSTICES:                           

  • RAPHAEL CHIKWE AGBO, JCA
  • OYEBISI FOLAYEMI OMOLEYE, JCA
  • BALKISU BELLO ALIYU, JCA 

DIVISION: CALABAR 

PRACTICE AREA: PRE-ELECTORAL MATTERS 

FACTS:

The 1st Respondent averred that she was a registered member of the Appellant (APC) a political party and in the build up to the up-coming 2023 general elections, she was an aspirant in the primary election conducted by the party on the 28th May, 2022 for selection of candidate for the Ikot Ekpene/Obot Akara/Essien Udim Federal Constituency in Akwa Ibom State for member of House of Representatives and she was returned winner. The said primary election was monitored by the 3rd Respondent and it issued a report (Exhibit C) which confirmed the 1st Respondent as the winner of that primary election and the 3rd Respondent stated the results and votes scored by each party. Having emerged as the candidate of the Appellant, the 1st Respondent said in compliance with the 3rd Respondent’s guidelines, she approached the Appellant (APC) at its National Headquarters in Abuja on the 16th June, 2022 for it to submit her name to 3rd Respondent (INEC) as its (APC) candidate to participate in the 2023 general elections for the said Federal constituency in the House of Representatives. Rather than submit her name, the Appellant forwarded to INEC a list dated 16th June, 2022 (Exhibit D) containing supposed winners of its primaries and in place of the 1st Respondent, the party presented the 2nd Respondent as the winner of the APC primaries for Ikot Ekpene/Obot Akara/Essien Udim Federal Constituency of Akwa Ibom State. She claimed to be unlawfully substituted without recourse to the provisions of the Electoral Act 2022 and that she never withdrew her valid nomination as the candidate of the 2nd Respondent for the said Federal Constituency to justify her substitution. This initiated the suit at the trial Court.

​It was the Appellant’s position that the 1st and 2nd Respondents contested the primary election conducted on the 27th May, 2022 at the Ikot Ekpene Township Stadium, where the 2nd Respondent won the election having scored 139 votes to defeat the 1st Respondent who scored 18 votes. Based on that result, the 2nd Respondent was declared winner of the House of Representative Primary Election for Ikot Ekpene/Essien Udim/Obot Akara constituency. The Appellant and 2nd Respondent further insisted that the result of that primary election was duly signed by the chairman and secretary of the House of Representative Primary Election Committee that was appointed by the NWC of the party. That it was that committee that submitted to the NWC its report on that primary election, pursuant to which the NWC of the 2nd Respondent forwarded the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2023 general election for the said Federal constituency in line with Electoral Act and his name was duly published as the Party’s candidate. They asserted that the 1st Respondent was not the nominated candidate of the Appellant, rather, having lost that primary election of 27th May, 2022, she acted in concerts with a faction of the party and in defiance of the NWC of the Party, conducted a parallel congress on the 28th May, 2022, which she was relying on in her suit. That the result the 1st Respondent relied upon as Exhibit ‘C’ was unknown to the NWC of the Appellant and contrary to her claims, the party did not conduct primary election on the 28th May, 2022 as claimed in Exhibit C which is contrived and strange to the APC. That the signatories of Exhibit C were not appointed by the NWC of the APC for the purpose of its primary election in the said constituency.

The 3rd Respondent (INEC) averred in its affidavit that its officers monitored the Appellant’s primary election conducted on the 28th May, 2022 at the Government Primary School Urban 1, Ikot Ekpene. The 1st and 2nd Respondents contested in the said primaries, and the 1st Respondent emerged the winner of the election and the team of INEC officers issued a report of that primary election that they monitored. The deponent stated that he was not aware of, nor did INEC officers monitor any other APC primary election in respect of the said federal constituency apart from that conducted on the 28th May, 2022.

After considering the affidavits and written addresses of the parties, the learned trial Judge delivered the Court’s judgment wherein he held that the 1st Respondent having emerged winner in a valid primary election that was monitored by INEC in compliance with the Electoral Act, cannot be substituted or unilaterally changed by the Appellant with the 2nd Respondent who scored only 5 votes as opposed to the 1st Respondent’s score of 147 votes. The trial Court accordingly entered judgment for the 1st Respondent and ordered INEC to recognize her as the Appellant’s candidate for the said constituency in the 2023 general election.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal based on the following issues:

  1. Whether the learned trial Court was right to uphold the primary election of 28/5/2022 relied upon by the 1st Respondent which was not authorized and/or conducted by the National Working Committee of the Appellant.
  2. Whether Suit No: FHC/UY/CS/132/2022 filed by the 1st Respondent on 29/6/22 to challenge the nomination of the 2nd Respondent by the Appellant on 27/5/22 was statute barred? 

COUNSEL SUBMISSION

The Appellant’s learned counsel submitted that the 1st Respondent in her suit before the trial Court prayed that the primary election conducted by the National Working Committee (NWC) of the Appellant on 27th May, 2022 be annulled because the 3rd Respondent (INEC) did not attend and monitor the said primary election. The trial Court agreed with the 1st Respondent and held that the absence of INEC at the 27/5/2022 primary election invalidated it, but the primary election of 28/5/2022 was valid due to the presence of INEC. He submitted that the 3rd Respondent was duly notified of the 27/5/2022 primary election through Exhibit APC3. That the 3rd Respondent who was party to the suit at the trial Court did not deny that it was notified of the Appellant’s primary election of 27/5/2022, instead the officials elected to attend a purported primary election of 28/5/2022 by persons unknown to the Appellant. Consequently, the notification of the 3rd Respondent by the Appellant was never in dispute.

The Appellant further argued that there was no legal duty on it to compel INEC to perform its administrative duty conferred to it by Sections 82 and 84 of the Electoral Act. He relied on the case of SHINKAFI VS. YARI (2016) 7 NWLR (PT. 1511) 340 at 373 to the effect that purpose of said sections of the Act was for the political parties to notify INEC of the primary election or other events if it wishes to so witness. Learned counsel urged the Court of Appeal to come to a finding that there was no basis for the trial Court’s nullification of the 2nd Respondent’s nomination by the Appellant on the ground that the primary election conducted by the Appellant on 27/5/2022 was not monitored by the 3rd Respondent. He argued that the trial Court was wrong to declare the 1st Respondent as the candidate of the Appellant without determining whether the primary election of 28/5/2022 she relied on was conducted by the Appellant. He relied on the case of EGBO VS. ANAUCHE (2020) 4 NWLR (PT. 1713) 82, where the Supreme Court held that the only primary election recognized as valid is that conducted by the National Working committee, or a committee appointed by it and not the primary election held by state executive. He referred the Court to the case of UBA VS. OZIGBO (2022) 10 NWLR (PT. 1839) 431 at 459-460 to the effect that a person who takes part in a parallel election outside the one conducted by the NWC of a political party does so at his own peril. He urged the Court to resolve in favor of the Appellant.

In response, the 1st Respondent’s learned counsel submitted that Section 84(1) placed a duty on the 3rd Respondent to monitor political parties’ primary elections. It was argued that the monitoring of such elections is not only mandatory, but necessary for the validity of such elections. With respect to Exhibit APC3 notice sent to INEC by the Appellant, the 1st Respondent submitted that it violates Section 82(1) of the Electoral Act having been issued outside the 21 days provided therein before the conduct of the primary election. With regards to the 1st Respondent’s Exhibit ‘C’ which the Appellant posited was contrived and concocted, the Appellant who asserts that position had the burden to prove it vide Sections 131 and 135 (1) of the Evidence Act, 2011. ​Upon the argument canvassed, learned counsel for the 1st Respondent urged the Court to resolve the issues against the Appellant and dismiss the appeal in its entirety.

DECISION/HELD:

In conclusion, the appeal was allowed. 

RATIO:

ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Whether the only valid political party primary is that which is conducted by the National Executive Committee of a party

“As stated earlier, the 1st Respondent must establish on preponderance of evidence that the primary election of 28/5/2022 she claimed was actually conducted by the NWC or NEC of the Appellant, before its monitoring of it by INEC can have any valid effect. The 1st Respondent did not do that having only relied on Exhibit ‘C’, the report of the INEC monitoring as conferring validity on the election. There was no evidence of any probative value to support that stand of the 1st Respondent. The learned trial Judge did not properly evaluate the evidence which no doubt preponderates on the side of the Appellant in this case when he held that:

“The Plaintiff’s case premise on Section 84(1) of the Electoral Act, 2022 which provides that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.” The operative word in Section 84(1) of the Electoral Act is “shall” and when the word shall is used in statutes, it connotes a command and that which must be given a compulsory meaning…. Section 29(1) of the Electoral Act, 2022 requires a political party to submit to the Commission the list of candidates the party proposes to sponsor at the elections who must have emerged from valid primary conducted by the political Party. Section 84 (1) of the Electoral Act, 2022 makes it mandatory that INEC monitor party primaries election, and any primary election not monitored by INEC is invalid… (Underlining supplied).

The above finding constitutes a very narrow and restrictive interpretation of Section 84(1) of the Electoral Act. His Lordship only considered the monitoring of INEC of a primary election as the validity factor. This is not the intendment of that section because it commenced with stating that it is the political parties that shall conduct their own primaries. INEC’s duty was to monitor and not to conduct primaries for the parties. It follows that for the monitoring of the primary election by INEC to have any valid effect, that primary election must be conducted by the NWC or NEC of the party which is not the case in respect of the 28th May, 2022 primary election that the 1st Respondent relied on. Since she failed to prove that the primary election was conducted by the Appellant’s NEC, the learned trial Judge was clearly in error to hold otherwise.” Per ALIYU, J.C.A.

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