IBYABY ZENDESHA EMMANUEL & ANOR v. BENUE STATE INDEPENDENT ELECTORAL COMMISSION & ORS
(2019)LCN/13868(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/MKD/230/2018
RATIO
JUDICIAL NOTICE
It is undoubtedly correct in law that Courts are entitled to take judicial notice of proceedings in Court by virtue of Section 122(1) & (2)(m) of the Evidence Act, 2011 (as amended). For ease of reference, the provisions provide as follows:
122. (1) No fact of which the Court shall take judicial notice under this section needs to be proved.
(2) The Court shall take judicial notice of (m) the course of proceeding and rules of practice in force in any Court established by or under the Constitution.? (Emphasis supplied)
PER JUMMAI HANNATU SANKEY, J.C.A.
REMEDY: PROCEDURE PRESCRIBED BY STATUTE
This Court cannot ignore the principle of law which states that where the procedure for a remedy is prescribed by statute, the Court must ensure compliance with the procedure in deciding whether or not an aggrieved person is entitled to the remedy he seeks from the Court. See Nwachukwu V Duru (2006) LPELR-12601(CA); & Adigun V Osaka (2003) 5 NWLR (Pt. 821) 95 (CA). PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. IBYABY ZENDESHA EMMANUEL
2. SOCIAL DEMOCRATIC PARTY Appellant(s)
AND
1. BENUE STATE INDEPENDENT ELECTORAL COMMISSION
2. THE CHAIRMAN, BENUE STATE INDEPENDENT ELECTORAL COMMISSION
3. THE GOVERNOR OF BENUE STATE
4. THE ATTORNEY GENERAL, BENUE STATE
5. MRS. BECKIE ORPIN Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Consolidated Ruling of the High Court of Justice, Benue State sitting in Makurdi delivered on 18-04-18, Coram: Kaka?an, J. in suit number MHC/478/2017. The Ruling is based on Motions no: MHC/2466M and MHC/2206M/17, which led to the striking out of the Originating Summons in suit number MHC/478/2017.
The brief facts leading to the Appeal may be summarised as follows: on 03-06-17, Local Government Council Elections were held across the length and breadth of Benue State. Whereas the 1st Appellant contested under the platform of the Social Democratic Party (SDP), the 5th Respondent contested under the platform of the All Progressives Congress (APC). At the close of Polls, the 5th Respondent was declared the winner of the election. However, in an intra-Party dispute between Hon. Aaron Shawon, JP and the 5th Respondent, Mrs. Beckie Orpin, among others at the High Court of Benue State sitting in Gboko, the Court on 09-06-17 nullified the election of the 5th Respondent and ordered the All Progressives Congress to conduct fresh a Primary Election. On the same date, 09-06-17, the 5th Respondent filed a Notice of Appeal against the decision of the High Court, Gboko at its Registry, filed a second Notice of Appeal on 13-06-17 and filed Additional Grounds of Appeal on 28-07-17.
?
Thereafter on 25-10-17, during the pendency of these Appeals before the Court of Appeal, Makurdi Division, the Appellants herein filed an Originating Summons at the High Court of Benue State sitting in Makurdi seeking the determination of the following questions:
1. ?Whether upon the interpretation/construction of Section 5(c) and (g) of the Benue State Independent Electoral Commission (Amendment) Law 2012, read in conjunction with Article 36 of the Guidelines for the Conduct of 2017 Local Government Council Elections and the judgment of the Benue State High Court sitting in Gboko, in Suit No: GHC/20/2017, the Honourable Court will be justified to compel the 2nd Respondent to issue a Certificate of Return to the 1st Applicant as the unopposed/duly elected Chairman of Gboko Local Government.
2. Whether upon the interpretation/construction of the general powers of the 3rd Respondent as enshrined in Sections 5(2), 176(2) and 193 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read in conjunction with the judgment of the Court in SUIT NO: GHC/20/2017, delivered on 9/6/2017, the Court will be justified to compel the 3rd Respondent to swear in the 1st Applicant as the duly elected Chairman of Gboko Local Government.
3. Whether upon the interpretation/construction of the provisions that relate to the 4th Respondent as enshrined in Section 195 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and in conjunction with the judgment of the Court in SUIT NO: GHC/20/2017, the Court will be justified in compelling the 4th Respondent to ensure that all the other Respondents give full effect to the judgment through the swearing/recognition of the 1st Applicant as the elected Chairman of Gboko Local Government.
4. Whether upon the true interpretation of the judgment of the Benue State High Court sitting in Gboko, in SUIT NO: GHC/20/2017, delivered on 9/6/2017, the 5th Respondent ever contested the 3rd June, 2017 Chairmanship election against the 1st Applicant that warranted the other Respondents to recognize her instead of the 1st Applicant as the elected Chairman of Gboko Local Government.
5. Whether upon the interpretation of the judgment of the Court, in SUIT NO: GHC/20/2017, delivered on 9/6/2017, the Court will be justified in restraining the 5th Respondent from further carrying out the functions of the office of the Chairman of Gboko Local Government.
Upon the determination of these questions, the Applicants sought the following reliefs from the lower Court:
i. AN ORDER of mandamus compelling the 1st and 2nd Respondents to announce the 1st Applicant who is the flag bearer of the 2nd Applicant as the unopposed candidate and eventual winner of the Chairmanship election for Gboko Local Government held on the 3/6/2017, based on the judgment of the Benue State High Court, sitting in Gboko, in SUIT NO. GHC/20/2017, delivered on 9/6/2017.
ii. AN ORDER of mandamus compelling the 1st and 2nd Respondents to immediately issue a certificate of return to the 1st Applicant (the candidate of the 2nd Applicant) as the winner of the uncontested Chairmanship election for Gboko Local Government, Benue State, held on 3/6/2017, based on the judgment of the Benue State High Court, sitting in Gboko, in SUIT NO: GHC/20/2017, delivered on 9/6/2017.
iii. AN ORDER of mandamus compelling the 3rd Respondent to immediately swear in the 1st Applicant (the candidate of the 2nd Applicant) as the duly elected Chairman of Gboko Local Government, Benue State, held on the 3/6/2017, based on the judgment of the Benue State High Court, sitting in Gboko, in SUIT NO. GHC/20/2017, delivered on 9/6/2017.
iv. AN ORDER of mandamus compelling the 4th Respondent as the Chief Law Officer of Benue State to ensure that all the other Respondents exercise their various statutory duties as requested by the Applicants in this suit.
v. AN ORDER of Court directing the 4th Respondent to ensure that the 5th Respondent immediately vacates the office of Chairman Gboko Local Government so as to pave way for the resumption of duty by the 1st Applicant in that capacity.
vi. AN ORDER of Court nullifying all the administrative steps that the 5th Respondent has taken in the capacity as Chairman, Gboko Local Government, Benue State.
vii. AN ORDER of injunction, restraining the 5th Respondent, her agents, assigns and any other person acting through her from parading herself/themselves as the Chairman of Gboko Local Government, Benue State, as a result of the outcome of the Chairmanship Election for Gboko Local Government held on the 3/6/2017.
viii. AN ORDER directing the 5th Respondent to refund to the 1st Applicant all the salaries and allowances she has collected in the capacity of Gboko Local Government Chairman, with effect from 12th June, 2017 to the date of judgment and/or compliance with judgment.?
(Emphasis supplied)
In response to the application in the Summons, the Respondents entered a ?Memorandum of Conditional Appearance in Protest? on 03-11-17 supported by a counter affidavit. On the same date, S.E. Irabor Esq., on their behalf filed a Motion on Notice No. MHC/2206M/17 wherein he equally raised a preliminary objection to the hearing of the Appellants? suit. He subsequently withdrew his representation for the 1st and 2nd Respondents, but continued to represent the 3rd to 5th Respondents. The then 1st and 2nd Respondents? Counsel also filed a Motion on notice number MHC/2466M/17 on 19-11-18 equally raising a preliminary objection to the hearing of the suit. The lower Court consolidated both motions for hearing along with the substantive suit.
In the Motion on Notice No. MHC/2206M/17, the Respondents prayed the Court to strike out/dismiss the suit for the following reasons:
1) ?That the Honourable Court has no jurisdiction to hear and determine this suit.
2) That the Applicants/Respondents have no locus standi to maintain the suit having regards to their attached Exhibit ?5? as well as the facts in the support of the Originating Summons.
3) That the suit is an abuse of court process of this Honourable Court.?
The grounds in support of the application were set out as follows:
1. ?That the judgment of the Benue State High Court, sitting in Gboko delivered on 9th day of June, 2017 in Suit No. GHC/20/2017, the substratum or basis for the instant proceedings is the subject of appeal before the court of Appeal, Makurdi Division in Appeal No. CA/MK/194/2017.
2. That the 5th Respondent/Applicant herein on 3rd July, 2017, also filed an application before the Court of Appeal for a stay of execution of the Judgment of the Gboko High Court as well as file (sic) her Appellant?s Brief of argument on 16th August, 2017.
3. That the Appeal against the judgment of this Court delivered on 9/6/2017 having been entered in the Registry of the court of Appeal as No. CA/MK/194/2017, this Honourable Court has no jurisdiction to hear and determine the instant proceedings issued against the Respondents/Applicants.
4. That the 1st Applicant did not even come second in the election of 3rd June, 2017 to earn the locus standi to file the instant suit and justify a grant of the reliefs sought.?
The pivot of the preliminary objection of the Respondents was that the lower Court lacked jurisdiction to entertain the Appellants? suit since the Judgment in Suit No. GHC/20/17 delivered on 09-06-17 was already the subject matter of an Appeal before the Court of Appeal in Appeal No. CA/MK/194/2017; and also that the suit was statute-barred.
At the close of hearing the consolidated motions and the suit, the lower Court upheld the preliminary objections and struck out the Applicants? suit mainly on the ground that the Appeal from the Judgment in Suit No. GHC/20/2017, having been entered at the Court of Appeal as: Appeal No. CA/MK/194/2017, there could be no other issue or question for determination before the lower Court. The learned trial Judge also held that since by the Appellants? own admission, the circumstances in Suit No. GHC/20/2017 gave rise to the suit before it, the Applicants not being parties thereto, cannot seek to draw benefit from the said Judgment via the enforcement of same. It therefore upheld the objections and struck out the suit for want of jurisdiction. It is against this decision that the Appellants, being dissatisfied, have appealed to this Court.
At the hearing of the Appeal on 06-03-19, T.J. Tyeku Esq. adopted the Appellants? Brief of argument dated and filed on 19-02-19, deemed filed on 28-02-19 and settled by Humphrey Usha Esq; as well as the Appellants? Reply Brief in answer to the 1st to 4th Respondents? Brief of argument filed on 06-03-19, in urging the Court to allow the Appeal. The Appellants did not file a Reply Brief of argument in response to the 5th Respondent?s Brief of argument.
In like vein, S.E. Irabor Esq., adopted the 1st to 4th Respondents? Brief of argument dat
