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CaseLaw

Gwede V. INEC & Ors (2014) CLR 10(a) (SC)

Judgement delivered on October 24th 2014

Brief

  • Jurisdiction
  • Lis pendens
  • Electoral Matters
  • Pre election matter
  • Nomination & substitution of candidate
  • Raising issue suo motu
  • Fresh issue on appeal
  • Issues for determination
  • Section 138(1) of the Electoral Act, 2010 (as amended)
  • Section 33 of the Electoral Act, 2010
  • Section 35 of the Electoral Act, 2010
  • Section 32(4) of the Electoral Act, 2010.
  • Section 33 of the Electoral Act, 2011.
  • Section 141 of the Electoral Act, 2010.
  • Section 32 of the Electoral Act, 2010.
  • Section 22 of the Supreme Court.
  • Section 285 (1)(b) of the constitution 1999.
  • Section 285 of the 1999 constitution

Facts

This is an appeal against the judgment of the Court of Appeal holden at Benin City in appeal No. - CA/B/237/2012 delivered on the 22nd day of May, 2013 in which the court resolved the two issues calling for determination in favour of appellant but concluded by allowing the appeal in part and dismissed the claims of the appellant who was the 1st plaintiff at the trial court in suit No. FHC/ASB/CS/110/2011.

The facts of the case include the following:

For the appellant are that he was able to establish that the 2nd respondent was not sponsored by the 4th respondent Political Party, DPP for the House of Assembly Election of 2011 as appellant was effectively and properly used as a substitute by the political party to replace the 2nd respondent who had withdrawn from the contest in keeping with the provisions of the relevant Electoral Act specific section of the law. This being a situation in consonance with the inalienable right of the political party to nominate and sponsor a candidate for an election, which power is not for dispute by anyone or body or the court. The conclusion as forwarded by the appellant being for the invocation of the powers of the Supreme Court under Section 22 of the Supreme Court Act to emphasise that correct position.

The Independent National Electoral Commission (INEC) as 1st respondent takes the position that the appellant was not nominated to contest and did not participate in the election to the membership of the Delta State House of Assembly for Ughelli North II State Constituency conducted on 26th April, 2011 and so not entitled to the reliefs claimed in the Originating summons.

Also that since the action of the appellant before the trial court was initiated after the general election, the suit was outside the ambit of the jurisdiction of the trial court and should have been a dispute for the Electoral Tribunal.

The 2nd respondent went along the same line of thinking of the 1st respondent in respect of the lack of jurisdiction of the trial court being a pre-election matter commenced after the general election. Again along the same viewpoint, that the substitution was not made and so appellant having no leg to stand in the reliefs sought.

The 4th respondent, Democratic Peoples Party (DPP) anchored its arguments as those of the appellant, insisting it was appellant the political party sponsored and not 2nd respondent.

The claim of appellant at the trial court was for the determination of the following questions:

  • (a)
    Whether the 1st plaintiff who having been duly nominated as the candidate of the 2nd plaintiff for the election into the Delta State House of Assembly to represent Ugelli North Constituency II in the Delta State House of Assembly and the 2nd plaintiff having won the election whether the 1st plaintiff is not entitled to be issued with a certificate of return in respect of the said election.
  • (b)
    Whether the 2nd Defendant who personally signed a letter withdrawing from the election and was validly substituted by the 1st plaintiff as the candidate can validly contest that he is still the candidate of the 1st plaintiff in respect of the material election.
  • (c)
    Whether the 1st defendant can pick and choose candidate for the 2nd plaintiff, a political party.

The plaintiffs then sought the following reliefs:

  • (a)
    A declaration that the 1st plaintiff being the validly nominated candidate of the 2nd plaintiff is the person entitled to be issued with a certificate of return in respect of the House of Assembly election in Ugelli North II Constituency of Delta State.
  • (b)
    An order of the Honourable Court directing the 1st defendant to issue the 1st plaintiff with a certificate of return in respect of the House of Assembly for Ugelli North II Constituency of Delta State.
  • (c)
    An order restraining the 1st defendant from recognizing the 2nd defendant as the candidate of the 2nd plaintiff and also from issuing any certificate of return in the name of the 2nd defendant.

    • In the course of trial and following the conflicts that arose concerning the issue of withdrawal of candidacy for the election by the 2nd respondent and other incidentals, the trial court ordered oral evidence to be taken which was done. At the conclusion of hearing, the trial court not only concluded that it has no jurisdiction to hear and determine the matter but dismissed same in a judgment delivered on the 27th day of June, 2012.

    Being dissatisfied with the decision of the trial Judge, the 1st plaintiff appealed to the lower court.

    In a judgment delivered on 22nd day of May,2013, the lower court resolved the above issues in favour of appellant though the 2nd issue was so resolved in part leading to the court refusing to grant any of the reliefs sought by the appellant, which reliefs, the court consequently dismissed. The instant appeal is against the above judgment of the lower court.

Issues

  • 1.-->
    Whether the learned Justices of the Court of Appeal were right when after...
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