CHIEF AMEKE CHRISCATO IKECHUKWU v. HON. TONY NWOYE & ANOR
(2013)LCN/6066(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/E/300/2012
RATIO
APPEAL: NOTICE OF APPEAL: NATURE AND IMPORTANCE OF NOTICE OF APPEAL
“… it is expected that a notice of appeal should convey in clear terms the substance of the appellant’s complaint against the judgment appealed for purpose of leaving the respondent in no doubt as to what battle he is expected to contest in court. Any ground which is vague, general in nature or speculative will fall short and not disclose any reasonable ground of appeal. The contents must in otherwords be specific and straight to the point.” Per OGUNBIYI, J.S.C.
APPEAL: NOTICE OF APPEAL: LAW GOVERNING THE AMENDMENT OF NOTICE OF APPEAL
“The law is trite and well settled that an amendment can be made at any time before judgment. This is reasonable because once judgment is delivered, a seal has been put to the controversy between parties and therefore ends the adjudication in that court. Order 8 rule 4 of the rules of this court is also relevant wherein it states:- “A notice of appeal may be amended by or with the leave of the court at anytime.” Per OGUNBIYI, J.S.C.
COURT: INHERENT POWERS OF A COURT: WHETHER OR NOT A COURT HAS INHERENT POWERS
“It is also trite, though elementary, to state that the court is, as provided by the Constitution, clothed and imbued with enormous wide and inherent powers which are exercisable at its discretion for purpose of doing justice. The caveat however restricts that the exercise of such discretion must not be whimsical or lackadaisical without due care and attention. It must, in other words be judicial and judicious having regard to all the facts and materials placed before it and also the circumstance relating to the case” Per OGUNBIYI, J.S.C.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
CHIEF AMEKE CHRISCATO IKECHUKWU Appellant(s)
AND
1. HON. TONY NWOYE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 8th of April 2011, the 1st respondent herein as applicant in suit No.FHC/AWK/157/2011 obtained the leave of the Federal High Court at Awka, per P. F. Olayiwola J to apply for Judicial Review by way of mandamus, declaration and injunction. Pursuant to this leave, the 1st respondent on the 11th April 2011 filed a motion on notice applying for judicial review and praying for the following reliefs.
1. “A declaration of court that the respondent being a public body upon which a lot of constitutional and statutory responsibilities have been reposed especially in the matter of conducting a free and fair election in Nigeria in April 2011 must in doing so act dispassionately, independently and fairly without bias for or against any person(s) including the applicant.
2. A declaration of court that the respondent cannot be allowed to approbate and reprobate at the same time or to speak from both sides of the same mouth at the same time and is therefore bound by its declarations and statements especially as set out and or contained in its letter dated 10/2/2011 and cannot be allowed to resile from the same.
3. An order of mandamus or mandatory order of injunction of the court compelling the respondent forthwith to accord to the applicant all the rights, privileges and entitlements due to a candidate of the Peoples Democratic Party in the April 2011 general elections having won its primaries, been duly nominated by the party to fly its flag in the election to the Anambra East/West Federal Constituency and as a result of the order of the court in FHC/CS/AWK/5/2011.”
The motion was supported by an affidavit with documentary exhibits.
At the commencement of the action, the Independent Electoral Commission was the sole respondent. Subsequently the appellant herein was joined as a 2nd respondent. The 1st and 2nd respondents filed their counter-affidavits and filed motions raising objection to the jurisdiction of the trial court to entertain the suit and urging that the suit be dismissed or proceedings therein stayed for abuse of process. The objections were heard together with the substantive suit. On the 13th July 2012, the trial court considered and dismissed the preliminary objections and entered judgment in favour of the 1st respondent granting an order of mandamus compelling the 2nd respondent herein to recognize the 1st respondent as the Peoples Democratic Party (PDP) candidate in the 26th April 2011 election into the Federal House of Representative seat for Anambra East/Anambra West, Federal Constituency.
This appeal No CA/E/300/2012 by the appellant is against the said judgment on the grounds contained in the notice of appeal dated and filed on 10th September 2012. The appellant and 1st respondent herein have filed, exchanged and adopted their briefs as their arguments in this appeal. The briefs are appellants brief, 1st respondents brief and appellants reply brief. The 2nd respondent did not file any brief in this appeal. The appellant in his brief raised the following issues for determination:
1. Whether or not the 1st respondent could apply for mandamus based on non-existing right?
2. Considering the way and manner the lower Court conducted the trial whether the appellant was denied fair hearing?
3. whether the suit was not an abuse of Court process?
Having regard to the arguments of the parties, whether the trial Court was in grave error in its failure to uphold the Appellant’s objection at the lower Court to its jurisdiction to entertain the suit?
Considering the subject matter, as well as the parties, whether:
A. Whether or not the 1st defendant could still institute another action, after same have been finally disposed of by the court of appeal?
B. The suit was statute barred. Ground 6.
C. The suit was caught up by the doctrine of res judicata? Distilled from ground 5 of the notice of appeal.
The 1st respondent raised a two pronged issue for determination as follows:-
“whether the learned trial judge had jurisdiction to entertain the suit and whether the Court was also justified in entering its judgment of 13/7/2012 in favour of the 1st respondent” Considering the grounds of appeal, the issues raised for determination in the briefs of the parties herein and the arguments of such issues, I will prefer to frame the issues for determination in this appeal as follows:
1. whether the trial court’s decision that it has the jurisdiction to entertain and determine suit No.FHC/AWK/157/2011 is correct.
2. whether the trial court was right when it refused to uphold the appellant’s objection at the trial nisi prius that the said suit No FHC/AWK/157/2011 is an abuse of the process of Court.
3. whether the appellant was denied fair hearing at any stage of the trial proceedings
4. whether the trial Court was right to have made the order of mandamus compelling the 1st respondent to recognize the 1st respondent as the Peoples Democratic Party candidate in the 2011 general election into the Federal House of Representative seat for Anambra East/Anambra West Federal Constituency.
I will start with issue No 1. The Learned Senior Advocate has argued that the trial Court lacked the jurisdiction to entertain and determine the claim before it on the grounds that:
(i) it is an election matter, a subject matter under the exclusive original jurisdiction of the National Assembly Election Tribunal
(ii) the Federal or State High Court has no appellate or supervisory jurisdiction over the said Tribunal
(iii) from the moment the objection to the jurisdiction of the trial court was raised, it ceased to have jurisdiction to do any other thing except determine the objection
(iv) the matter had been finally determined by the Court of Appeal
(v) the suit was statute barred
(vi) the suit was caught up by res judicata
Learned counsel for the respondent argued replicando that the subject of the claim is a pre-election matter and is therefore within the jurisdiction of the trial court.
It is obvious from the arguments of the Learned Senior Advocate for the appellant that all his submissions on this issue flow from his assumption that the subject matter of the claim before the trial court was an election matter in the sense that it is a post election matter or a matter arising from the concluded April 2011 general election. Therefore the validity of the submissions of both sides will depend on whether the subject matter of the claim is a pre-election or an election matter. Let me now proceed to determine this issue. The nature of the subject matter of the claim before the trial court derive from the facts giving rise to the claim. It becomes necessary therefore to consider the background facts that led to the claim before the trial court. Even though, the case as presented by both sides, create an impression that they do not agree on the facts of the case, the facts of this case are obviously not in dispute. All the relevant or material facts are contained in documents which both sides put before the trial court. There is nothing in the record of this appeal showing that the authenticity or validity of any of the document was challenged by any of the parties. Therefore the facts therein remain established and undisputed. The case, therefore turned on the legal implications of those facts or the inferences or conclusions to be drawn therefrom. The said facts are as follows. On the 8th of January, 2011 a Peoples Democratic Party (PDP) National Assembly Primary election to nominate the party’s candidate for the 2011 general elections to the Federal House of Representative Seat for Anambra East/Anambra West Federal constituency was conducted by the said party’s National Assembly Electoral Panel appointed by its National Executive Committee to conduct National Assembly primary election in Anambra State. The 1st respondent as the aspirant with the highest number of votes at the end of the voting was declared the winner of the said primary election. The appellant was not an aspirant at the said primary election and did not contest in the primary. The said National Assembly Electoral Panel wrote to the National chairman of the Peoples Democratic Party (PDP) forwarding a list of the successful candidates at the 7th and 8th January 2011 Peoples Democratic Party (PDP) National Assembly primary election in Anambra State. The letter was signed by all members of the Electoral panel including its Chairman, Senator J. K. Waku. The name of the 1st respondent is number 8 on the section of the list of those successful in the Federal House of Representative primary elections. At its meeting held on the 30th January 2011, the National Executive Committee of Peoples Democratic Party (PDP) ratified and confirmed its 14th January 2011 approval of the primary election results for candidates for National Assembly and State House of Assembly elections. The Anambra East/Anambra West Federal constituency primary election result was among those ratified. The earlier approval of the National Executive Committee of the entire list forwarded by the Senator Waku led Electoral Panel was confirmed and ratified by the National Executive Committee of the Peoples Democratic Party at its said meeting of 30th January 2011. The minutes of the said meeting show that candidates list had before that date been submitted to the 2nd respondent. Even then, the National Executive committee still directed that a comprehensive list of all the party’s candidates be compiled signed by its National chairman and Secretary and submitted to the 2nd respondent by 31st January 2011. This was done.
On the 7th January 2011, a parallel Peoples Democratic National Assembly Primary elections in Anambra State including Anambra West/Anambra East Federal constituency were conducted by the Anambra State Executive Committee of the Peoples Democratic Party (PDP). The appellant who was an aspirant in the said primary election had the highest votes at the end of voting and emerged the winner of the said primary election of the Peoples Democratic Party (PDP) candidate for 2011 general election into the Anambra West and Anambra East Federal constituency. By a letter dated 13th January 2011, the Chairman of the Anambra State chapter of Peoples Democratic Party (PDP) wrote to the secretary of the 2nd respondent submitting a list of the successful aspirants in the National Assembly and State House of Assembly primary elections in Anambra State conducted by the said State chapter of Peoples Democratic Party (PDP) the appellant is number one on the said list of successful aspirants in the Federal House of Representatives submitted by the Anambra State Chapter of Peoples Democratic Party (PDP) to the 2nd respondent.
The successful candidates in the primary elections conducted by the National Executive Committee of Peoples Democratic Party (PDP) apprehensive that the 2nd respondent had decided to reject their nominations and rather accept the names of persons submitted by the Anambra State chapter of the Peoples Democratic Party (PDP), filed two suits at the Federal High court namely suit No FHC/AWK/CS/05/2011 – SENATOR ANNIE OKONKWO & ANOR VS. INEC & ANOR and suit No FHC/ABJ/CS/65/20111 – ANTHONY IJU NWACHUKWU VS. INEC & ORS. In the two cases the Federal High Court at Awka and Abuja respectively made an ex-parte order of injunction restraining INEC from accepting, dealing with, publishing, displaying, screening and in any other way recognizing any names other tha
