EBONYI EPIC BATTLE FOR PDP GUBERNATORIAL TICKET AND THE SUPREME COURT DECISION OF 14/9/2022 IN CHIEF CHUKWUMA ODII IFEANYI v. SENATOR JOSEPH OBINNA OGBA & 2 ORS.

 EBONYI EPIC BATTLE FOR PDP GUBERNATORIAL TICKET AND THE SUPREME COURT DECISION OF 14/9/2022 IN CHIEF CHUKWUMA ODII IFEANYI  v. SENATOR JOSEPH OBINNA OGBA & 2 ORS.

INTRODUCTION

In the build-up to the a

Democratic Party (PDP) scheduled the Ebonyi National/State Assembly and Governorship primary elections for 28 and 29 May 2022 respectively. But these dates coincided with the date of the National Convention of the party to elect it's Presidential candidate for the 2023 general elections, and given that some of the National delegates who were to vote in the aforesaid Ebonyi State primaries were also part of the delegates that would vote in the National Convention; given the fact that the National electoral committee that would conduct the primary elections did not form a quorum, coupled with the fact of non-compliance with the party's electoral guidelines, the National Working Committee of the party was constrained to  cancel  the state primary elections scheduled for 28/29 May, and later rescheduled same to 4 and 5 June 2022. While no primary election for the National and State Assemblies took place on 28 May 2022, one of the candidates for the Governorship primary defied the party, went on with the primary election on 29 May and thereafter declared himself winner. For the first time in Nigeria's political history, a person who claimed to have 'won' an election rushed to court with prayers to be declared winner of the election, and to stop his own party from conducting another (the rescheduled) primary election. Under section 84(15) of the Electoral Act 2022, no court in Nigeria now has jurisdiction or competence to stop the holding of primary or general elections pending the determination of any suit. And so the rescheduled election of which the Independent National Electoral Commission (INEC) and all party faithfuls were duly notified took place successfully on 4 and 5 May 2022, and Distinguished Senator Joseph Obinna Ogba (Senator Ogba) emerged the winner, having scored the highest number of valid votes cast (beating about eight other candidates) and was returned elected.

THE LEGAL TUSSLE

Having won the primary election conducted by the party, Senator Ogba settled down to deal with the court action then pending at the Federal High Court (FHC) Abakaliki. His pending application for joinder was ignored as the court went ahead to cancel the primary election of 5 June 2022, and declared Chief Ifeanyi Chukwuma Odi (Chief Odi) the authentic candidate having 'won' in the cancelled primary of 29 May 2022. Senator Ogba approached the Court of Appeal (CA) in Appeal No. CA/E/160/2022 with a notice of appeal (as an interested party) and a concomitant application for joinder. Due to public holidays and intervening weekends, this legal processes were not consummated within the statutory 14 days. At hearing, the CA berated the lower court for giving it's judgement without first disposing of a pending application for joinder; it then went ahead to grant the application for joinder, upturned the judgement of the FHC and ordered a retrial by another FHC. Chief Odi appealed to the Supreme Court (SC) followed by a cross Appeal by Senator Ogba. Last Wednesday, 14 September, the SC handed down it's weighty decision; having discovered the breach of 14 days statutory provision, the apex court dismissed Senator Ogba's cross Appeal, upturned the decision of the CA, and declared Chief Odi the authentic candidate without going into the merits of the case. Is it then a matter of 'case closed?' Not at all!

THE ACHILLES HEEL OF A CASE

While the decision of the CA in Appeal No. CA/E/160/22 was being awaited, Chief Odi's legal team for some curious, unfathomable reason(s), commenced another action at the same FHC Abakaliki, seeking the same reliefs as in the case before the CA: the same cancellation of the primary election of 4 & 5 June (National/State Houses of Assembly & Governorship primary elections), and enlarged the number of defendants to include some of those who participated in the June 4 primary election. This second suit, in our humble opinion, was skewed in such a way and manner as to render the awaited decision of the CA nugatory. As the CA was handing down it's decision as narrated above, the FHC was churning out another judgement that practically made a mince meat of the CA's decision: it again nullified the June 4 and 5 primaries, declared Chief Odi the authentic candidate with all his National/State Assembly candidates, and declared the primary elections of 4/5 June null and void. Senator Ogba was again constrained to go on Appeal in Appeal No. CA/E/200/2022. The CA was peeved and consternated over this second action which it wasted no time in quashing, declaring same as gross abuse of court process. The CA went a step further by, this time, declaring that no primaries took place in Ebonyi State on 28/29 May and that the only valid primaries were those of 4 and 5 June 2022. But it stopped short of declaring Senator Ogba the authentic candidate having emerged from the only valid primary of June 5. Again, Chief Odi appealed to SC and Senator Ogba, again, cross Appealed. While the SC has now settled the first appeal in favour of Chief Odi, on technical grounds, without going into the merits of the case, it is not yet Uhuru for Chief Odi camp. 

The second  action is now before the SC, and there is no legal or statutory encumbrance that would divert the attention of the court from the merits. The gravamen of Senator Ogba's cross Appeal is that the SC should uphold the decision of the CA and hold that the only valid  primary in Ebonyi was that of 4 and 5 June 2022 as scheduled and conducted by the party, PDP (with particular reference to the party's letters cancelling the primary elections scheduled for 28/29 May 2022 and rescheduling same to 4/5 June 2022), and to declare Senator Ogba the authentic candidate having emerged winner in the said valid primary. The following legal questions lend themselves to the SC for Determination:

1. Whether or not a political party has the competence to cancel and reschedule its own primary elections.

2. Where there are two competing primaries of a political party with respect to the same seat, does the court have any competence to determine for the party which primary is the authentic one; in other words, does the court have any business choosing a candidate for a political party?

LEGAL ARGUMENTS

Taking the two legal issues together, we submit that it is settled law that a court of law has no jurisdiction to decide for a political party which of its two competing primaries has the right to produce it's candidate for an election. In the case of Gbileve & Anor. v. Addingi & Anor. [2012] LPELR 14281, the CA (per Nwodo JCA of blessed memory) held that where there are two competing primary elections held by the same political party in respect of the same seat, the issue of who is the authentic candidate becomes a political party affair and the court has no business choosing a candidate for the party based on the double primaries. This position of the law was canvassed successfully and reaffirmed in a latter CA case of John Egesi & Ors. v. PDP & Ors. [2014] LPELR 22487 ( per Agim JCA now JSC).  This principle was also settled by the SC in Olly v. Tunji [2012] All FWLR (pt. 654) 39 at 50, where the apex court handed down the following binding pronouncement with a note of finality:

' Neither the court nor INEC can determine for the party which of it's primaries was the authentic one. The party is Supreme, when it relates to the conduct of its primaries.'

The above decision is the binding precedent followed by the Courts, including the SC, in a long line of cases since the SC decision in Onuoha v. Okafor [1983] 2 SCNLR 244. See also,  PDP v. Sylva & Ors. [2012] LPELR 781 (SC); Emenike v. PDP [2012] All FWLR (pt. 640) 1261, at 1267, etc.

In PDP v. Chief Makanjuola Ogundipe [2018] LPELR 43887, the Supreme Court followed the decision in Onuoha and Okafor (supra) and held as follows: 

'The courts cannot be invited to decide who the leader of such a party is, as that would be beyond the jurisdiction of such courts in the light of Onuoha v. Okafor (supra). Also in the case of PDP v. Sylva (supra) this court restated clearly that the right to nominate or sponsor a candidate for an elective position is a domestic right of the political party ... it is not open for a court to inquire into the membership/leadership of a political party.'

The above judicial authorities were cited with approval and relied upon by the CA in Appeal No. CA/E/200/2022, Senator Joseph Obinna Ogba v. Chief Chukwuma Odi Ifeanyi & 19 Ors.  delivered on 1 September 2022. The SC missed the opportunity to re-affirm this long standing precedent in its recent decision of 14 September 2022. And by declaring Chief Odi the authentic candidate,the SC has departed from it's previous decisions and trumped upon the age-long precedent it had set that has formed the bulwark of our jurisprudence. 

Had Chief Odi legal team not made the tactical mistake of filing the second suit, it could have been over for Senator Ogba and his team, but having resorted to playing chess with judicial process, this latter, unnecessary suit is now their Achilles heel that will soon prove that the joy of the 14 September 2022 judgement indeed has a slender body that will break too soon!

CONCLUSION

In conclusion, the struggle of who becomes the PDP gubernatorial candidate in Ebonyi State in 2023 general elections is far from over. In the second Appeal now pending before the SC, the apex court is being asked to do nothing more but to follow its own previous decisions in the long line of cases adumberated above. The apex court may now utilise the opportunity to re-affirm it's earlier decisions that in the face of two primary elections that took place in Ebonyi in May and June 2022,  only the party  PDP has the competence to determine which one is valid; only the party has the competence to determine who flies it's gubernatorial ticket in Ebonyi or indeed any state, and neither INEC nor the courts can usurp these powers. And the party PDP has already spoken loud and clear by virtue of its letters cancelling and rescheduling the primary elections from 28/29  May to 4/5 June 2022. This second appeal will give the SC an opportunity to look into the merits of the case to reinforce these jurisprudential issues to serve as guide in future elections. If the SC fails, neglects or refuses to utilise the ample opportunity afforded by this second Appeal to do substantial justice and uphold it's own long-standing judicial precedent, then it would be clear that it has taken with it's left hand the authority it gave political parties with it's right hand to be in control and determine their internal affairs without undue interference from the courts and INEC. If that happens, then the evergreen principle of 'party is supreme' enunciated in the SC case of Olly v. Tunji (supra) would cease to be operative.

That said, there remains a window of opportunity that substantial justice, not technical justice, would be done in this case. NdiEbonyi may as well continue to  prepare to be happy again under Senator Ogba's administration 🙏

Whatever happens, na God win! 

Chief Amos Ogbonnaya, LLM, FCAI, MCArb ✍️

Attorney at Law, Notary Public and Chartered Arbitrator.