CHIEF PEGBA OTEMOLU v. SENATOR A.M. MAKARFI & ORS
In The Supreme Court of Nigeria
On Wednesday, the 12th day of July, 2017
SC.128/2017
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
Between
CHIEF PEGBA OTEMOLU Appellant(s)
AND
- SENATOR A.M. MAKARFI
2. SENATOR BEN OBI
3. PRINCE BIYI POROYE
4. ADEMOLA GENTY
(for themselves and on behalf of the Ondo State Executive Committee of the Peoples Democratic Party)
5. HON OLASOJI ADAGUNODO
6. BOLA JAO LATEEF
(for themselves and on behalf of the Osun State Executive Committee of the Peoples Democratic Party)
7. HON. TAIWO AKEEM
8. HON. ALABA ADELABU
(for themselves and on behalf of the Oyo State Executive Committee of the Peoples Democratic Party)
9. HON BOWALE SOLAJA
10. OTUNBA ADEWALE SEGUN
11. OGUNBIYI ADELEKE OLASUKANMI
12. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
13. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division in Appeal No.CA/A/551M/2016 between: Senator Ahmed Mohammed Makarfi, Senator Ben Obi v. Prince Biyi Poroye & 10 Ors delivered on 23/11/2016.
The appellant had brought an application before the Court below for leave to appeal as an interested party against the judgment of the Court as it affected him.
The gist of this matter goes thus: The 3rd – 9th respondents, as plaintiffs had commenced an action before the Federal High Court, Abuja by an originating summons on 7/6/2016. They sought a number of declaratory and injunctive reliefs against the 12th & 13th respondents. On the 29th June, 2016 the trial Court delivered its judgment in favour of the 3rd-11th respondents as plaintiffs.
Dissatisfied, the 1st and 2nd respondents appealed to the Court below as interested parties affected by the said judgment of the trial Court. In its judgment, the Court below allowed the appeal in favour of the 1st and 2nd respondents by setting aside the judgment of the trial Court.
The appellant
contended that in its judgment, the Court below nullified the primary conducted by the appellant on nomination of candidate for election without affording the appellant the opportunity of being heard. He contended further that even though he was not a party in the process leading to the nullification of the primary conducted by him, and it was never an issue before the trial Court or the Court below. The Court below had suo motu nullified the said primary conducted by the appellant’s Executive Committee without hearing from him.
In his Notice of Appeal dated 25/01/16, the appellant raised a sole ground of appeal against the said judgment of the Court below delivered on 23/11/2016.
In the brief of argument settled by learned senior counsel for the appellant, Dr. Alex Izinyon, SAN, the following sole issue was distilled from the said sole ground of appeal:
“Whether the Court below was right to have nullified the primary conducted by the appellant on nomination of candidate for election without affording the appellant the opportunity of being heard contrary to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as
amended).”
In arguing the above sole issue for the determination of this appeal, learned senior counsel for the appellant contended that the appellant was duly elected as the South West Zonal Executive Committee among other officers of the Peoples Democratic Party (PDP) the 13 respondent in the south West States by virtue of Exhibit AS9A.
Learned senior counsel further contended that on 19th May, 2016, the National Chairman and Secretary of the 13th respondent had written a letter to the 12th respondent (INEC) that the appellant as well as other elected officers on the 11th day of October, 2014 are the duly elected South West Zonal Executive Committee of the 13th respondent (PDP) which has the confirmation of the National Executive Committee to deal directly with 12th respondent to the exclusion of others and to carry out function as may be delegated to them by the 13th respondent. And that in the basis of the said letter from the National Chairman and National Secretary of the 13th respondent – Exhibit AS9A, the appellant and his Committee conducted primary for nomination of candidate for Gubernatorial election in Ondo State as one of the south West
States.
The appellant went further to state that the Notice of Appeal filed by the 1st and 2nd respondents before the Court below never questioned the primary election conducted by the appellants Executive Committee but rather it was solely on ground of fair hearing.
In the brief of argument of the 1st and 2nd respondents settled by Olabode Olanipekun, Esq., learned counsel also formulated a sole issue from the sole ground of appeal filed by the appellant, although differently couched.
It is interesting to note that the appellant herein referred to the finding of the Court below he found offensive that led him to appeal against the judgment. It reads thus:
“We have stated that the reliefs sought, to be exclusive officers to nominate candidate for election was beyond the plaintiffs.”
This finding is said to be contained on pages 2386 of the record.
I have carefully gone through the judgment of the Court below referred to in Vol.2 of the record of appeal. Indeed, the said judgment is on pages 2377 through to 2394. The said alleged offensive finding of the Court is the first paragraph on page 2393 of the record.
It is note
worthy that in a sister appeal No.SC.130/2017 between Prince Biyi Poroye and 8 others and Senator Ahmed Mohammed Makarfi and 3 ors, the 1st-9th appellants in that appeal who were the plaintiffs before the trial Court are the parties referred to as the 3rd to 11th respondents in this appeal. While the 12th & 13th respondents herein are the 3rd and 4th respondents. The same judgment of the Court below being attacked here was attacked in the said appeal.
It is interesting to note that his point being raised in this appeal was raised by the appellants in the above appeal as their issue No.4 as follows:
“(iv) Whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in the action were beyond the plaintiffs.”
The said point was also raised by the Court as issue No. 4 and resolved.
It must however be noted and categorically stated loud and clear that the Court below, in its judgment being appealed did not nullify any primary election conducted by the appellant herein or by any other person or body of persons, It is therefore a misconception to hold that the Court, below suo motu nullified the
primary election conducted by the appellant’s Executive Committee. What the Court below decided mainly in setting aside the judgment of the trial Court which was given in favour of the present 3rd-11th respondents as plaintiffs was that, the trial was conducted and decided against the appellants without giving them hearing or at least an opportunity to be heard. This was held to be and it was in breach of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which guaranteed fair hearing of the appellants in the determination of their interests. The appeal against the said judgment of the Court below was dismissed and our decision in the said appeal shall therefore be the same in this appeal.
The sum total of what has been said is that this appeal shall abide by the decision of this Court in appeal No.130/2017 between Prince Biyi Poroye & Ors Vs. Senator Ahmed Mohammed Makarfi & Ors. which has been delivered.
In the circumstance, this appeal is found to be misconceived, lacking in merits and liable to dismissal.
Accordingly, the appeal is dismissed.
There shall be costs of N250, 000.00 in favour of
each of the 1st and 2nd respondents only against the appellant.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother, ARIWOOLA JSC just delivered.
This appeal is a sister appeal to SC/130/2017 and it arose from the Judgment of the lower Court delivered on 23rd November, 2016. The facts relevant to the determination of the appeal have been stated in detail in the lead Judgment making it unnecessary for me to repeat them herein.
I agree with the reasoning and conclusion of my learned brother that the appeal is without merit and should be dismissed. It is a worthless appeal which has succeeded in wasting our time.
I order accordingly and abide by the consequential orders made in the said lead Judgment including the order as to costs.
Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading the Judgment of my learned brother, Ariwoola, JSC just delivered, I agree with him in dismissing the appeal. I abide by the consequential orders made in the lead Judgment.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment prepared by my learned brother Kayode Ariwoola, JSC. I agree with it, and I too dismiss the appeal accordingly.
MUSA DATTIJO MUHAMMAD, J.S.C.: This appeal raises the same issue raised in SC.130/2017, sister appeal. The very issue has been thoroughly considered in the sister appeal. I agree with my learned brother OLUKAYODE ARIWOOLA JSC that the instant appeal shall abide the decision in Appeal No. SC.130/2017 between Prince Biyi Poroye & 8 ors V. Senator A.M. Makarfi & 3 ors delivered earlier today 12th July, 2017. Parties should bear their respective costs.
Appearances
Dr. Alex Izinyon, SAN with him, B.K. Abu, Esq., K. O. Omoruan, Esq., F. O. Izinyon, Esq., E. Oghojafor, Esq. and L. O. Fagbemi, Esq. and C.U Adah For Appellant
AND
Olabode Olanipekun, Esq. with him, Aisha Aliyu, Esq. Bolarinwa Awujoola, Esq., Vanessa Onyemanwa, Esq, Adebayo Majekolegbe, Esq, and Ugochukwu Nwosu Iheme, Esq. for the 1st and 2nd Respondent.
Chief Akin Olujinmi, SAN with him, Olumide Olujinmi, Esq., Akinsola Olujinmi for the 3rd-11th Respondents
Nelson Ani, Esq. for 12th Respondent.
H. O. Afolabi, SAN with him, P.A. Abah, Esq., Sikiru Adewoye, Esq., K. O. Ajana, Esq. for 13th Respondent. For Respondent
