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BARRISTER EMMANUEL AZUBUIKE v. PEOPLES DEMOCRATIC PARTY & ORS (2019)

BARRISTER EMMANUEL AZUBUIKE v. PEOPLES DEMOCRATIC PARTY & ORS

(2019)LCN/13645(CA)

In The Court of Appeal of Nigeria

On Saturday, the 13th day of July, 2019

CA/OW/201/2019

 

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

BARRISTER EMMANUEL AZUBUIKE Appellant(s)

AND

1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. UZODIKE AARON Respondent(s)

RATIO

WHETHER OR NOT THE ISSUE OF JURISDICTION SHOULD BE RESOLVED FIRST

The Court in its judgment observed thus:- ?It is now settled that the procedural requirement that an issue of jurisdiction should be resolved first -Page 682 of the Record of Appeal. PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Abia State, Umuahia, delivered on the 3rd day of May 2019 in a pre-election suit No. HU/6/2019.

The Appellant who was the Claimant in the pre-election matter had his suit dismissed by the Court below.

FACTS RELEVANT TO THIS APPEAL
The gravamen of the Appellant?s case is that the 3rd Defendant Uzodike Aaron (3rd Respondent in this Appeal) who was not an aspirant, or present at the primaries, it was, whose names and personal particulars were forwarded by the 1st Defendant (PDP) to the 2nd Defendant (INEC) on the 2nd of November 2018, which was the last day fixed by the 2nd Respondent for submission of names of political parties candidates for the election. Instead of those of the Appellant (BARRISTER EMMANUEL AZUBUIKE) to INEC (2nd Defendant) as the candidate, the 1st Respondent was sponsoring for the election to the Abia State House of Assembly for the Aba North State Constituency, contrary to the 1st Respondent?s Electoral Guidelines for Primary Elections ? Exhibit ?F?.

On the

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5th of October 2018, the 1st Respondent had conducted its special congress for the purpose of nominating its candidate for the election to the Abia State House of Assembly for the Aba North State Constituency of Abia State. The special congress was conducted by a three (3) man Electoral Committee which was constituted for that purpose by the 1st Respondent.

Four aspirants, including the Appellant participated in the said special congress primary.

Four other aspirants, including the 3rd Respondent ? UZODIKE AARON who was originally cleared by the 1st Respondent to contest at the primaries, stepped down and did not turn up at the primaries at all.
?
The primary elections was conducted via the indirect primary method, with ninety three (93) delegates drawn from the Aba North State Constituency in attendance as electors. The result produced was profoundly in favour of the Appellant, as he scored 57 votes out of 93 votes cast. The Appellant was declared winner of the Primary Elections, and he was issued a copy of the official result by the Electoral Committee. The official result was signed by both the Returning officers and secretary of the

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Electoral Committee. The Electoral Committee also issued a report on the outcome of the primary election, restating the Appellant?s victory at the said primary, a copy of which was given to the Appellant by the Electoral Committee through the Returning officer.

On or about the 20th of October 2018, there were speculations that surreptitious moves were made to submit the 3rd Respondent?s name to their Party Headquarters in Abuja, as the candidate the 1st Respondent was going to sponsor for the election. The Appellant wrote to the State Chairman of the 1st Respondent protesting.
?
Appellant subsequently through his counsel, wrote a petition to the National Executive Committee of the 1st Respondent through its National Working Committee, informing it of the alleged moves to substitute the Appellant?s name with that of the 3rd Respondent, and demanded that the Appellant?s name be forwarded to the 2nd Respondent, having scored the highest votes at the 1st Respondent?s primaries, and in keeping with the PDP Guidelines for Primary Elections. Exhibit ?E? is the petition. The 1st Respondent did not respond to Exhibit

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?E?. Exhibit ?F? is PDP Guidelines for Primary Elections.

On the 2nd of November 2018, – the last day fixed by the 2nd Respondent for submission of names of political parties? candidates for the election, surprisingly the 1st Respondent forwarded the name and personal particulars of the 3rd Respondent instead of that of the Appellant, to INEC as the candidate whom the 1st Respondent was sponsoring for the election to the Abia State House of Assembly for the Aba North State Constituency, contrary to the 1st Respondents? Electoral Guidelines for Primary Elections.

On the 5th of November 2018, the Appellant filed a suit No. FHC/ABJ/SC/1309/2018 at the Federal High Court, Abuja challenging the action of the Respondents.
At the end of the trial, the Court below dismissed the suit.
The Appellant is dissatisfied with the decision and has appealed it.

He filed a Notice of Appeal on the 15th of May 2019 encapsulating seven (7) Grounds of Appeal ? Pages 691 ? 705 of the Record of Appeal.

The Appellant filed his brief of argument on the 7th of June 2019. It is settled by KENNETH C. IKONNE,

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ESQ.

The 3rd Respondent filed his brief of argument on the 21st of June 2019. It is settled by C. C. ELELE, ESQ.

The Appellant filed a Reply brief of argument in response to the 3rd Respondent?s brief of argument on the 28th of June 2019.

On the 10th of July 2019, the parties adopted their respective briefs of argument.

The 1st and 2nd Respondents filed no briefs of argument.

The Appellant distilled three (3) Issues for determination from the Grounds of Appeal which are:-
1. ”WHETHER HAVING REGARD TO THE LEADINGS AND THE EVIDENCE LED, THE TRIAL COURT?S FINDING THAT EXHIBIT J AND E WERE WRITTEN BY THE APPELLANT TO THE 1ST RESPONDENT AFTER THE 1ST REPONDENT HAD FORWARDED THE NAME OF THE 3RD RESPONDENT TO INEC AS ITS CANDIDATE, IS NOT PERVERSE, AND TOTALLY UNSUPPORTED BY THE PLEADINGS AND EVIDENCE ON THE POINT
2 WHETHER THE TRIAL COURT WAS NOT WRONG IN HOLDING THAT THE APPELLANT?S SUIT WAS STATUTE ? BARRED AND IN CONSEQUENTLY DISMISSING IT.
3. WHETHER THE TRIAL COURT OUGHT NOT TO HAVE CONSIDERED AND RESOLVED ALL THE ISSUES PROPERLY RAISED AND CANVASSED BEFORE IT, AND WHETHER ITS FAILURE TO DO SO IN

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ITS JUDGMENT DID NOT OCCASION A GRAVE MISCARRIAGE OF JUSTICE?

On his part, the 3rd Respondent proffered two (2) Issues for determination from the Grounds of Appeal. They are:-
1. ?IN VIEW OF THE PLEADINGS OF THE APPELLANT IN PARAGRAPHS 18 AND 19 OF HIS STATEMENT OF CLAIM AND HIS ADMISSIONS IN HIS LATER EXHIBIT J, WAS THE LEARNED TRIAL JUDGE NOT RIGHT IN HIS DECISION THAT APPELLANT?S CAUSE OF ACTION AROSE ON 20TH OCTOBER 2018 AND WAS BARRED AFTER 14 DAYS AND DID HIS LORDSHIP RELY SOLELY ON THE 3RD RESPONDENT?S ADDRESS IN THE DETERMINATION OF ACCRUAL DATE OF THE CAUSE OF ACTION?
2. IN VIEW OF THE STATE OF PLEADINGS OF THE APPELLANT INCLUDING HIS PRINCIPAL RELIEF 7 AND THE UNAPPEALED DECISION OF THE COURT VIS–VIS SECTION 285 (13) OF THE 1999 CONSTITUTION AS ALTERED, WAS THERE FAILURE BY THE LEARNED TRIAL JUDGE TO CONSIDER ANY LIVE ISSUES RAISED IN APPELLANT?S PLEADING OR ADDRESS RESULTING IN A BREACH OF APPELLANT?S RIGHT TO FAIR HEARING OR MISCARRIAGE OF JUSTICE TO JUSTIFY THE APPLICATION OF SECTION 15 OF THE COURT OF APPEAL ACT 2004 IN ORDER TO DETERMINE THE SUIT?

?The 3rd Respondent had in

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Paragraph 3.0 of his brief of argument given notice of his intention to rely upon Preliminary Objection, which was filed on the 21st of June 2019.

By the very nature of Preliminary Objection, I deem it pertinent to consider it first before I go into the merits of the main appeal (if necessary).

The Grounds upon which the Preliminary Objection is predicated are:-
1. ?The Claimant/Appellant failed to serve the 3rd Respondent with the Notice of Appeal at all in accordance with the mandatory requirement of Order 2 Rule 1 (a) of the Court of Appeal Rules, and thereby denied him of his right to fair hearing.
2. Ground 1 of the Grounds of Appeal does not arise from any finding, decision or determination of the learned trial judge. The purported part of the decision from which Ground 1 of the Ground of Appeal was lifted relates to the part of the judgment where the learned trial judge was reviewing the case made by the Claimant/Appellant in his pleading and evidence, and not part of the finding or decision of the learned trial judge. In order for a Ground of Appeal to be valid, it must arise from the decision of the Court, particularly the

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ratio decidendi and not merely any passing (unintentional) remark in the course of review of the proceedings/case of the parties.
3. Furthermore, Grounds 1 ? 7 of the Grounds of Appeal are at last question of Mixed Law and fact (i.e. question other than law alone) while Ground 8 is a question of Fact simplicities. By Section 242 (1) of the 1999 Constitution as amended, leave of the Act Court or Court of Appeal is mandatorily request before Appellant can file his said Notice of Appeal on Ground of Mixed Law and fact or fact. No such lease was sought and obtained before Appellant purported to file this appeal on 15/5/2019?

But on the 9th of July 2019, learned Court for the 3rd Respondent withdrew his ground of objection No. 3, and same was accordingly struck out.
?
The 3rd Respondent argues that a Notice of Appeal being an originating process must be served on the Respondent to the appeal personally, unless otherwise ordered ? referring to the Provisions of Order 2 Rule 1(a) and 2 of the Court of Appeal Rules 2016. That failure to serve a Notice of Appeal on a Respondent robs the Court of jurisdiction to entertain the appeal, as it

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constitutes a breach of the Respondent?s right to fair hearing.

The 3rd Respondent argues that in the present case, the 3rd Respondent was purportedly served with the Notice of Appeal after compilation and transmission of the Appeal Records; entry of the Appeal; filing of the Appellant?s brief of argument; and he was denied his Constitutional Right to file a cross Appeal or Respondent?s Notice.

That it is the law that a Cross-appeal should be filed within the statutory time for filing the main appeal, while a Respondent?s notice must be filed within 30 days of the service of the Notice of Appeal, so that the Respondents? Notice shall be included, and form part of the Records of Appeal to be compiled and transmitted.

That failure to serve the 3rd Respondent with the Notice of Appeal robs this Honourable Court of the jurisdiction to entertain this appeal. Urges Court to strike out/dismiss the appeal.

It is the contention of the 3rd Respondent that all the eight (8) Grounds of Appeal are incompetent. That Ground 1 does not arise from the decision of the Court below.
?
That there is no place where the Court

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below made a finding relied upon by the Appellant, from which he formulated Issue 1. Ground 1 of the Grounds of Appeal therefore does not arise from the decision appealed against, he submits.

Submits that Ground 1 is incompetent being a Ground of mixed law and facts, in that it complains that the judgment of the Court below is perverse, occasioning a miscarriage of justice.

Having withdrawn Ground of Objection No. 3, it seems to me that what the 3rd Respondent?s grouse is, is the issue of service, and the fact that Ground 1 of the Notice and Grounds of Appeal does not arise from the decision of the Court below.

In his reply brief, the Appellant submits that Ground 1 of the Objection is self contradictory, because the 3rd Respondent had stated in one breath that the Appellant failed to serve him with the Notice of Appeal. He however, later conceded that the Notice of Appeal was served on him, but that it was after compilation and transmission of records, entry of appeal, and filing of Appellant?s brief.
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He submits that the truth is that the 3rd Respondent was served by substituted means with the Notice of Appeal, along with the

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Record of Appeal, and the Appellant?s brief of argument on the 14th of June 2019, after evading service on a number of occasions. This in spite of the fact that the 3rd Respondent knew that Election Matters are SUI GENERIS, and time is of the essence.
?
He submits that substituted service of originating processes is the only mode of service known to the Court of Appeal Rules 2016, to bring the pendency of an appeal to the notice of an evasive or elusive Respondent. That same was utilized on the 3rd Respondent who has now fully and effectively responded by filing his brief of argument. That the 3rd Respondent was served by substituted service sequel to an order of this Honourable Court, made on the 13th of June 2019, granting leave to the Appellant to serve the 3rd Respondent by substituted means. That the application for substituted service was filed on the 13th day of June 2019, to which was exhibited the Bailiffs affidavit of service, evidence of several unsuccessful attempts and efforts made by the Court?s bailiff to serve the 3rd Respondent personally with the Notice of Appeal. Submits that all these processes are in the Court?s

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file.

Submits that by virtue of the Provisions of Order 9, Rule 4 (b) of the Court of Appeal Rules 2016, the time within which the 3rd Respondent may file and serve a Respondents Notice if he so wishes, is after service of the Notice of Appeal on him. The filing of a cross appeal is not strictly dependent upon an appeal having been filed. ? citing OGUMA v. I. B. W. A. (1988) 1 NWLR 658 at 681.

He submits that the 3rd Respondent was misconceived when he said that the method of service upon him of the Notice of Appeal denied him the right to file either a Respondent?s Notice or Cross-appeal.

On the second Ground of Objection, the Appellant submits that the contention of the 3rd Respondent that Ground 1 of the Grounds of Appeal does not arise from any finding, decision or determination of the Court below is misconceived.
?
That the Ratio decidendi of the decision of the trial Court declaring the Appellant?s suit statute barred is predicated on the fact that the cause of action arose on the 20th of October 2018, while the suit itself was filed on the 5th of November 2018, which according to the Court below, was outside the 14

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days stipulated by the Provisions of Section 285 (11) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Submits that Ground one and its particulars are very well related and connected to the Ratio decidendi of the judgment.

Urges Court to discountenance the objection.

I have painstakingly perused the arguments proffered by the respective parties and I must say that my reasoning leans in favour of the Appellant as far as the Preliminary Objection is concerned. In other words, that the objection raised by the 3rd Respondent as a whole seems to me misconceived. I shall give my reasons as I consider it.

In Paragraphs 2.01 ? 2.04 of the Appellant?s reply to the Preliminary Objection, he had amply stated the circumstances of the several attempts to serve the 3rd Respondent until the Court came to his aid, by granting an application to serve him processes by substituted means. In the circumstances the 3rd Respondent cannot be heard to say that there was no service of the processes of the Court on him.

?However, From records, the Writ of Summons in respect of the suit the subject matter of this Appeal is dated

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and filed 5th of November 2018. ? Page 2 -8 of the Record of Appeal.

Exhibit ?J? is a letter dated 20th October 2018 addressed to Chief Johnson Onuigbo. ? the State Party Chairman, People?s Democratic Party, Finbarrs Road, Umuahia, by the Appellant. ? Pages 885 ? 889 of the Record of Appeal.

It is headed ?ILLEGAL SUBSTITUTION OF MY NAME: BARR. EMMANUEL AZUBUIKE WITH UZODIKE AARON FOR THE SEAT OF ABA NORTH STATE ASSEMBLY?. It is a protest letter.

I am of the view that when that letter issued on the 20th of October 2018, that was when the cause of action arise.

In Paragraph 26 (1) and (2) of the Plaintiff (Appellant) Statement of Claim it seeks the following:-
1. ?A DECLARATION that by virtue of his having won the primaries of the 1st Defendant for the purpose of nomination its candidate conducted at its Special Congress held on the 5th day of October, 2018, the Plaintiff, and not the 3rd Defendant, is the candidate of the 1st Defendant for the election to the Abia State House of Assembly for the Aba-North State Constituency and the Plaintiff?s name and personal

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particulars, and not those of the 3rd Defendant, ought to have been forwarded by the 1st Defendant to the 2nd Defendant by virtue of the 1st Defendant?s Guidelines for Primary Elections and the Electoral Act, 2014.
2. A DECLARATION that the failure of the 1ST Defendant to forward the name and personal particulars of the Plaintiff to the 2nd Defendant as its candidate for the Aba-North State Constituency for the 2019 election to the Abia State House of Assembly having won its primary election, is a flagrant breach of the 1st Defendant?s Electoral Guidelines for Primary Elections, and the Electoral Act, 2014 (as amended).

Therefore it would be correct to say that the Appellant is quarelling with the fact that another candidate was put in his place.

Curiously, the Appellant in his reply brief had not stated when the cause of action arose. He kept mute on the subject. The 3rd Respondent at the trial had however raised certain Preliminary issues which touch on jurisdiction at the Court below. The Court in its judgment observed thus:-
?It is now settled that the procedural requirement that an issue of jurisdiction should be

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resolved first

-Page 682 of the Record of Appeal. Having considered the Preliminary Objection as to statute bar, the Court below found indeed that the Plaintiff (Appellant) in this appeal instituted the suit, the subject matter of this appeal outside the 14 days required by law and that makes the action statute bar. That should end the matter. The issue of ratio decedendi in the circumstances become otiose, simply because the proceedings in the Court below become null and void at that portal. The Appellant had in his issue No. 2 for determination queried whether the Court below was not wrong in holding that the Appellant?s suit was Statute barred.

In view of my reasoning herein before, considering that issue becomes an academic exercise, as the suit the subject matter of this Appeal is clearly Statute barred, and the Court below was right in dismissing the suit on that premise. For purposes of elucidation the Court below had this to say:-
?For the reason that this action has become constitutionally or statute barred, the Claimant has lost the right to pursue his grievance while this Court has lost its jurisdiction to

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entertain the action, this action ought to be and it is hereby dismissed? ? Page 790 of the Record of Appeal.

I find no reason to disturb this finding.
The Appeal is devoid of merit and same is hereby dismissed.
The judgment of the High Court of Abia State of Nigeria, holden at Umuahia in suit No. HU/6/2019 is hereby affirmed. Suit No. HU/6/2019 is hereby declared null and void and same is hereby dismissed.
N50,000 costs in favour of the 3rd Respondent only.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
?

?

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Appearances:

KENNETH C. IKONNE, ESQ.For Appellant(s)

C. C. ELELE, ESQ.For Respondent(s)

 

Appearances

KENNETH C. IKONNE, ESQ.For Appellant

 

AND

C. C. ELELE, ESQ.For Respondent