LADY MARGERY OKADIGBO v. PRINCE JOHN OKECHUKWU EMEKA & ORS.
(2011)LCN/4774(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of August, 2011
CA/E/EPT/03/2011
RATIO
PARTIES TO ELECTION PETITION: CATEGORIES OF PERSONS PERMITTED TO PRESENT AN ELECTION PETITION
Now there are only two categories of persons permitted by the Electoral Act 2010 (as amended) to present an Election petition. Thus it provided in Section 137 (1) (a) & (b) as follows:- 137 (1) “An election petition may be presented by one or more of the following persons:- (a) a candidate in an election; (b) a political party which participated in the election. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EXPARTE ORDER: WHAT AN EXPARTE ORDER ENTAILS ; WHETHER AN EXPARTE ORDER CAN DETERMINE THE RIGHTS OF THE PARTIES TO AN ACTION
An exparte order is an order made by the court upon the application of one party to an action without notice to the other party. See Black Law Dictionary 9th Edition at page 1206. Consequently, it cannot determine the rights of the parties to an action because it does not provide the essential platform for the determination of issues in contention between the parties. In order words it is an anathema to the hallowed principle as couched in the latin maxim (Audi altarem patem) which means ‘hear the other party’. This is one of the twin pillars of justice that guarantees fair hearing in the determination of disputes between contending parties in a suit. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
FINAL/INTERLOCUTORY JUDGMENT: TEST FOR DETERMINING WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY
In drawing a distinction between a final order or judgment the supreme court in FALOLA VS UNION BANK OF NIGERIA PLC (2005) ALL FWLR (PT.251) 1435 at 1442 held that:- “The test for determining whether a judgment or order is final or interlocutory as in this case is whether that judgment or order has finally and completely disposed of the rights of the parties in the case, so much so that if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the defend ant, it is conclusive against the plaintiff and no further reference can be made to the court in respect of the judgment or order.” See also OMONUWA VS. OSHODIN (1935) 2 NWLR (pt.10) 924. In IGUNBOR VS AFOLABI (2001) 11 NWLR (pt.728) 148 at 165, their lordships per Karibi white (JSC) restated the position thus:- “A final order or judgment at law is one which brings to an end the right of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issues or settles some stage or question but does not adjudicate the ultimate rights of the parties in the action….” See also IWUEKE VS IMO BROADCASTING CORPORATION (2005) ALL FWLR (PT.288) 1025 AT 1038 – 1039. FARDOUN VS MBC INTENATIONAL BANK LIMITED (2006) ALL FWLR (PT.297) 1130 AND WEST STEEL WORKS LTD VS IRON & STEEL WORKERS UNION (1986) 2 NSCC 786. In OGOLO VS OGOLO (2006) ALL FWLR (PT 313) 1 SC. The Supreme Court at page 16 agreed that the correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceedings resulting in the order. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
LADY MARGERY OKADIGBO Appellant(s)
AND
1. PRINCE JOHN OKECHUKWU EMEKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES DEMOCRATIC PARTY Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): In the National Assembly election which held throughout the country on the 9th day of April 2011. The 1st Respondent Prince John Emeka was declared the winner of the senatorial seat for Anambra North Senatorial District on the platform of the 3rd Respondent (PDP) by the 2nd Respondent.
The appellant who also claimed to be a candidate of the 3rd Respondent (PDP) at the said election felt aggrieved with the development and consequently filed a petition in the National Assembly Election Petition Tribunal sitting in Awka Anambra State wherein she prayed for the following reliefs:-
1. An order disqualifying the candidature of the 1st Respondent as candidate for the April 9th election into Anambra North Senatorial District as not having been sponsored by any political party.
2. An order returning the petitioner as the elected candidate in the April 9th senatorial election having polled the majority of lawful votes cast at the said election.
3. An order directing the 3rd Respondent to issue certificate of Return to the petitioner being the winner of the said election.
The 1st Respondent at the trial tribunal filed a notice of preliminary objection in his reply to the petition on the following grounds:-
1. The entire petition is predicated on pre-election matters.
2. The matters raised on the grounds of the petition do not qualify as grounds specified by the electoral Act 2010 for questioning the validity of an election petition.
3. The matters on which the petition is predicated are not within the jurisdiction of the Honourable Tribunal.
The 2nd Respondent also in her reply to the petition raised a preliminary objection and the grounds are:-
1. The petition is founded on matters squarely bordering on pre-election dispute.
2. The matters so raised in the petition do not qualify as grounds specified by the Electoral Act 2011 and the constitution of the Federal Republic of Nigeria 1999 for questioning the validity of an election.
3. The petitioner failed to join as respondents persons whose presence cannot be dispensed with for an adjudication of the issues raised herein.
4. The tribunal lacks jurisdiction to adjudicate over the matters on which this petition is predicated.
Written addresses were duly filed, exchanged and adopted by the parties and in a considered Ruling delivered by the tribunal on the 29/6/11, it was held as follows:-
“Having reached a finding:-
1. That this tribunal lacks jurisdiction to entertain this petition as it is predicated on pre-election issues, and
2. That the petitioner has no locus standi to present and maintain this petition, the preliminary objection succeeds and we accordingly order that this petition be and is hereby struck out.”
Being dissatisfied with the said Ruling the appellant filed a Notice and 6 grounds of Appeal dated 11/7/11 and filed on the same day.
In accordance with the relevant statutes and Practice direction, briefs of argument were duly filed and exchanged by the parties. The appellants brief of argument dated and filed on 14/7/11 was settled by Chuma Oguejiofor (Esq). The 1st Respondent’s brief dated 18/7/11 but filed on 19/7/11 was settled by Prof. Ilochi A. Okafor SAN. That of the 2nd Respondent was dated 21/7/11 and filed on 22/7/11. It was settled by Alhaji S. O. Ibrahim.
The 3rd Respondent’s brief dated 4/8/2011 but deemed properly filed on 9/8/11 was settled by Emeka Ajaegbo (Esq).
At the hearing of the Appeal on 9/8/11 the parties duly adopted and relied on their respective briefs of argument and replies.
In the Appellant’s brief of argument, one sole issue was distilled from the six grounds of appeal for determination as follows:-
1. “Whether the learned trial tribunal was right in holding as it had done that it lacked jurisdiction to hear the petition and should the said tribunal not have assumed jurisdiction in the matter and determined that the petitioner/appellant was the person who contested and won the election to the Anambra North Senatorial District in the Election held on 9/4/2011 as the PDP candidate in the said election and who ought to be returned as winner of the said election.”
The 1st Respondent also raised one issue for determination as follows:-
“Whether the learned tribunal was right in striking out the petition on the ground that it is founded on pre-election matters and lack of locus standi of the petitioner.”
Two issues were formulated in the 2nd Respondent’s brief of argument for determination by this court. It reads”-
(i) Whether the Honourable trial tribunal was not right in declining jurisdiction to entertain the appellant’s petition having been predicated on pre-election issues.
(ii) Whether the trial Honourable tribunal was not right in holding that the appellant has no locus standi to present and maintain the petition.”
The 3rd Respondent on the other hand also raise one issue for determination. To wit:-
(a) Whether the tribunal was right in striking the petitioner’s petition on the ground that the petition is founded on pre-election matters and the petitioner lacks the locus standi to present the petition and consequently the tribunal had no jurisdiction?”
The issue formulated by the parties in their respective briefs of argument are in tandem with each other and are derived from the grounds of appeal. But for purposes of clarity and thoroughness, I will adopt the sole issue as formulated in the Appellant’s brief in my consideration of this appeal. That is whether the learned trial tribunal was right in holding as it had done that it lacked jurisdiction to hear the petition and should the said tribunal not have assumed jurisdiction in the matter and determined that the petitioner/appellant was the person who contested and won the election to the Anambra North Senatorial District in the election held on 9/4/2011 as the PDP candidate in the said election and who ought to be returned as winner of the said election.”
Chuma Oguejiofor of counsel for the appellant submitted that to determine if it has jurisdiction to hear the petition, the trial tribunal ought to look at the nature of the claim in the petition and the reliefs sought. He referred to the following cases:- ABU VS ODUGBO (2001) FWLR (PT.69) 1268; ADEYEMI VS OPEYORI (1976) 9-10 S.C.31 and ENEMUO VS DURU (2006) ALL FWLR (PT 304) s08 at 526.
Learned counsel also referred to paragraphs 1, 2, 5, 6, 7, 10, 11, 15, 16 (c) 16 (e), 16 (f) ,17 (a – c) to contend that the above paragraphs disclose post-election and not pre-election issues.
He added that the appellant who was the candidate of the PDP at the election had contested and won the election but was not declared winner in which case her petition comes within the purview of Section 285 (1) of the constitution and Section 133 (1) of the Electoral Act 2010 (as amended).
Learned counsel further contended that the petition is not about the candidature of the appellant or 1st Respondent in the election because the Federal High Court Awka in Suit N0. FHC/AWK/CS/05/2011 decided that the appellant and not the 1st Respondent was the candidate of the party in the Election and the said decision remains valid having not been set aside on appeal. So he says, the issue of candidature has been settled by the Federal High Court Awka. He referred to the three orders of the court at pages 64 to 70 of the Record and cited in support, the case of ONYEKWELU VS INEC (2008) 14 NWLR (PT.1107) 317 particularly the Dicta of the Court at page 354 of the report.
Learned counsel also referred to the reliefs sought by the petitioner in paragraphs 18 (2) and 18 (3) of the petition to contend that they are not reliefs as could be sought in a pre-election matter. He added that ONYEKWELU VS INEC supra is on all fours with the instant case yet the trial tribunal still relied on it to hold that pre-election issues were raised in the petition and thus it divested the tribunal of jurisdiction to hear it. On the other hand the case of ENEMUO VS DURU supra cited by him and was also of the same fact with the instant case was not given any consideration by the trial tribunal.
Learned counsel further contended that the issue was not that the appellant wanted the tribunal to declare her a candidate of the party but rather that she was already a candidate by the decision of the Federal High Court, Awka. Therefore he says, all the votes cast for PDP in the election should be attributed to her and thus declared winner of the election with the 60,788 votes awarded to her and not the 1st Respondent. On locus standi, learned counsel referred to Section 137 (1) of the Electoral Act 2010 to contend that in so far as the Federal High court had decided that the appellant was the candidate in the Election, that decision had automatically made her a candidate in the election thus conferring her with the locus standi to present the petition. He added that locus standi is determined by the petition of the petitioner.
Learned counsel also referred to Section 141 of the Electoral Act 2010 as amended to say that it is a novel provision that was not present in the previous Electoral Acts and it is meant to cure the mischief wherein any person who never contested election as a candidate of a party will by other means get a certificate of return in the election.
Responding on the said issue, Authur Obi Okafor (SAN) of counsel for the 1st Respondent referred to the reasoning of the trial tribunal at page 197 to 198 of the record of appeal to argue that the crux of the action was centered on the nomination process of a political party and who of the contending protagonists won the nomination and therefore became the rightfully nominated candidate, in which case the proper forum to resolve it is the Federal High Court. He cited in support, the case of JULIUS UCHA vs DR. EMMANUEL ONWE & ORS (2011) 4 NWLR (PT 1237) 286 and OZIGBO vs. PDP (2010) 10 NWLR (PT 1210) 601.
Learned Senior counsel also referred to the case cited in support by the appellant, to wit:
ONYEKWELU VS INEC supra
MIKE VS TCHEONWO (1999) 4 NWLR (PT.600) 618
DR. ENEMUO VS DURU (2004) 2 EPR 1.
And submitted that they were not applicable to the instant case but were rather cited out of con by the appellant’s counsel.
Learned counsel further referred to Electoral Act 2010 as amended to submit that rather than obliterate the dichotomy between pre-election and post election matters, it has infact entrenched it. With particular reference to Section 141 therein, he contended that it applies to a respondent and not a petitioner and it does not confer jurisdiction but merely seeks to regulate or limit a relief, remedy or prayer an Election tribunal has power to grant after it has rightly assumed jurisdiction.
He also submitted that jurisdiction in Election tribunal is founded on Section 285 (1) of the 1999 constitution and Section 138 of the Electoral Act and referred to the following cases.
NWANKWO VS ATTAH (1999) 5 NWLR (PT 601) 134;
SANYAOLU VS INEC (1999) 7 NWLR (PT 612) 600;
ODEDO VS INEC supra AMECHI INEC supra ANPP VS ARGUNGU supra and
ZARANDA VS TILDE (2008) 10 NIWLR (PT.1094) 184.
Learned counsel also referred to Section 87 (9) and 87 (10) of the Electoral Act 2010 (as Amended) to submit that where there is a question as to whether the provisions of the Electoral Act and/or guidelines of a political party have been complied with, in the selection or nomination of a candidate of that party, the forum for determining same is the ordinary courts not election tribunals. On locus standi he submitted that it is not enough that there are proper grounds for filing a petition. The petitioner must be a person duly conferred by law or statute with the right to petition on those grounds. He referred to Section 137 (1) of the Electoral Act and the following authorities in support of the fact that the appellant lacks the locus standi to present the petition. To wit:-
OKON V. BOB & ORS. (2004) 1 NWLR (Pt.854) 378;
SUNDAY V. INEC (2008) ALL FWLR (PT 431) 985;
INEC VS A.C. (2009) ALL FWLR (PT 480) 732 and ASINYA vs INEC (2005) 16 NWLR (PT 950) 157.
Learned Senior counsel also referred to paragraphs 3 and 4 of the petition where the appellant averred that the 1″ Respondent was the candidate of the PDP in the election.
For the 2nd Respondent, S. O. Ibrahim of counsel submitted that the trial Tribunal was right in holding that it lacked jurisdiction to entertain the Appellants petition. He referred to Section 285 (1) (a) and (b) of the 1999 constitution and Section 138 (1) of the Electoral Act 2010 and the case of AGBAKOBA VS INEC (2008) 18 NWLR (PT.1119) 489 at 536 AND 545.
Learned counsel further submitted that from the grounds and the reliefs sought in the Appellants petition it was premised on the following issues between the 1st Respondent and the appellant.
(a) The validity of the nomination of the 1st Respondent and validity of the primaries under which the 1st Respondent emerged as candidate of the 3rd Respondent:-
(b) Determination of the actual candidate of the 3rd Respondent between the appellant and the 1st Respondent. He referred to ODEDO VS INEC (2008) 17 NWLR (PT.1117) 554 at 602, KOLAWOLE VS FOLUSHO (2009) 8 NWLR (PT.1143) 338 at 388 and UCHA VS ONWE & ORS (2011) 4 NWLR (PT.237) 386.
Learned counsel also referred to Section 87 (10) and (11) of the Electoral Act 2010 (as Amended) to contend further that the appellants petition discloses a pre-election matter and the trial tribunal was right in declining jurisdiction. He cited in support, IBRAHIM VS INEC (1999) 8 NWLR (PT 614) 34 at 3s1 and ADEOGUN VS FASOGBON (2011) 8 NWLR (PT.1250) 427 AT 441 and (2008) 17 NWLR (PT.1115) 149. On Locus standi, learned counsel made submissions and cited authorities similar to that of the 1st Respondent. In addition he contended that the mischief rule of interpretation is not applicable to Section 141 of the Electoral Act 2010 (as amended) and that ONYEKWELU VS INEC did not also support the contention of the learned counsel for the appellant on the issue.
For the 3rd Respondent, Emeka Ajaegbo of counsel, in the brief of argument presented a forceful argument similar to that of the 1st and 2nd Respondents and relied also on the authorities earlier cited by them. He further submitted that the instant case like the aforesaid authorities relied on are all about nomination and substitution. The only difference being the appropriateness of the forum for the redress of the complaint. He also cited OZIGBO VS PDP (2010) 10 NWLR (PT.1010) 601 at 652 where the court held that primary elections are pre-election matters over which the election tribunals have no jurisdiction.
Learned counsel referred to Section 141 of the Electoral Act 2010 and the cases of-
(a) ONYEKWELU vs INEC (2008) 14 NWLR (PT.1107) 317
(b) WIKE VS ICHEONWO (1999) 4 NWLR (PT 600) 618
(c) ENEMUO VS DURU (2004) EPR 1 and
Submitted that the case were cited out of con and do not in any way apply to the instant case. He then proceeded to distinguish the three authorities vis avis the instant case because Section 137 (1) (a) & (b) of the Electoral Act 2010 (as amended) recognizes only a candidate who actually contested in an election.
He also referred to Section 141 of the Act to contend that it only seeks to regulate or limit the relief, remedy or prayer which an Election tribunal has powers to grant after it has rightly assumed jurisdiction. Section 285 (1) of the 1999 constitution and Section 138 of the Electoral Act 2010 (as amended) according to learned counsel are the statutes that confers jurisdiction on Election tribunals.
He further referred to Section 87 (9) and 87 (10) of the Electoral Act and argued that while the former created a cause of action and specified the proper forum for redness, notwithstanding the other provisions of the Act, Section 87 (10) provided that suits commenced thereon shall continue notwithstanding the holding of elections. On the issue of locus standi, learned counsel for the 3rd Respondent referred to Section 137 (1) of the Electoral Act 2010 (as amended) and the following authorities:-
OKON VS. BOB & ORS. (2004) 1 NWLR (PT 854) 378;
SUNDAY VS INEC (2008) ALL FWLR (PT 431) 985;
INEC VS A.C. (2009) ALL FWLR (PT 480) 732 and
ASINYA VS INEC (2005) 16 NWLR (PT 950) 157.
He added that it is not enough that there exists a legal or justifiable right, and a justifiable cause of action. It is equally important that only a person who has the required locus standi that can invoke the judicial powers of the court to ventilate a cause of action.
The Appellant filed replies to the briefs of the three Respondents where he addressed profoundly all the issues and authorities emanating there from and this will be considered as appropriate. I have duly perused the record of appeal with particular reference to the appellant’s petition in the trial tribunal, the reply of the respondents thereon and the answers to the replies, the considered ruling of the trial tribunal and the parties briefs of argument in this appeal.
I have warned myself to be very circumspect in the consideration of this appeal, to avoid the slippery pit fall, or the temptation to delve into the merits of the petition. The salient or germaine issue to be tackled in the whole saga is whether the cause of action as contained in the Petition is a pre-election matter as ruled by the trial tribunal thereby depriving it of the jurisdiction to hear and determine same. The contention of the appellant is that she was the candidate of the Peoples Democratic (PDP) in the April 2011 election to the Anambra North Senatorial District where she actually contested in the said election and won but rather than declare her the winner, the 2nd Respondent declared the 1st Respondent who did not contest nor won the election as a candidate of the PDP as the winner of the election. The appellant premised her candidacy to contest the election on the platform of the PDP on the Judgment of the Federal High Court Awka in Suit No. FHC/AWK/CS/05/2011. To the appellant therefore, the trial tribunal was not invited to pronounce on who the candidate of the party was in the election since the Federal High Court Awka had settled the issue and that removes it from the ambit of pre-election matters. Her reliance was on Section 285 (1) of the 1999 constitution, Section 133 (1) of the electoral Act 2010 and more strongly on the case of ONYEKWELU VS INEC (2008) 14 NWLR (PT.1107) 317.
For the respondents, their common ground is that the crux of the dispute centered on the nomination process of a political party and who of the contending protagonists won the nomination and therefore became the rightfully nominated candidate. This to them, no doubt makes the appellant’s case a pre-election matter. Reference was also made amongst others authorities to SENATOR JULIUS UCHA VS DR EMMANUEL ONWE & ORS. (2011) 4 NWLR (PT.123) 386.
Now there are only two categories of persons permitted by the Electoral Act 2010 (as amended) to present an Election petition. Thus it provided in Section 137 (1) (a) & (b) as follows:-
137 (1) “An election petition may be presented by one or more of the following persons:-
(a) a candidate in an election;
(b) a political party which participated in the election.”The appellant is asserting that she was a candidate of the Peoples DEMOCRATIC Party at the election into the Anambra North Senatorial District held on 9/4/2011. Infact she avered in paragraphs 1, 2 and 3 of the petition as shown in page I of the Record of appeal as follows:-
1. Your petitioner – LADY MARGERY OKADIGBO was a candidate of the Peoples Democratic Party (herein under simply referred to as “PDP”) at the above election and has a right to be returned as winner of the election.
2. Your petitioner, LADY MARGERY OKADIGBO further to paragraph F supra, is a person who voted and was indeed a contestant and candidate of the PDP at the above election and actually had a right to be declared as the Senator for the Anambra North Senatorial District.
3. The Petitioner states that the election into the Anambra North senatorial District was held on the 9th of April 2011 and the results declared on the 10th of April 2011 when the following where the candidate, and the political parties at the said election and the scores of votes for each political party and candidates;
(a) PDP party – Prince John Emeka – 60,788
(b) CAN Party – Barr. Jesse Balonwu – 17,879
(c) APS Party – Godwin Obi – 630
(d) APGA Party – Dr. Joy Emordi – 54,060
(e) Accord Party – Dr. Mike O. Areh – 7,514
(f) ADC Party – Chief O.C. Ebeze – 4,006
(g) ANIPP Party – John C. Nwadiogbu – 1,065
(h) CDC Party – Okoli Obioma – 260
(i) CPC Party – John Bosah – 794
(J) PPA Party – Party – 633
(k) Labour Party – Denis Odife – 1,366
(L) NTP Party – Barr. C.E. Onyekwe – 244
(4) The petitioner will at the trial rely on the Tabular of the INEC downloaded from the official INEC website which shows that PDP won the election with the name of the 1st Respondent which is written against the PDP but with the word “Elected” not included.”
To my mind what can be gleaned from the above averments is to the effect that there was a pre existing controversy as to nomination for clearance and election between the appellant and the 1st Respondent under the umbrella of the PDP which controversy was not resolved before the holding of the election on 9/4/11.
This stance is made clearer in paragraph 10 of the appellant’s petition which reads thus:-
10 ‘In addition to the above documents which are authentic documents a candidate is required to show, there are also three (3) court orders made by the Federal High Court Awka in suit No. FHC/AW/CS/05/2011 dated 13/01/2011, 11/02/2011 and 25/03/2011 respectively which restrained INEC not to accept any other name other than the name of the petitioner in respect of Anambra North Senatorial District. The petitioner will rely on the certified copies of the orders as the candidate of the PDP party in Anambra North Senatorial district.
From the above, it is very clear that the seemingly solid foundation upon which the candidacy of the appellant stands are the orders made by the Federal High court Awka.
The three Orders under reference are found at pages 64 to 70 of the Record of Appeal and for purposes of clarity I will take the pains to reproduce in extenso the main order relied on by the appellant as shown at pages 64 to 66 of the Record. It reads:-
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
ON THURSDAY TIIE 13TH DAY OF JANUARY 2011
BEFORE THE HON. JUSTICE P. F. OLAYIWOLA
JUDGE
FHC/AW/CS/05/2011
BETWEEN
1. SENATOR ANNIE OKONKWO
2. (PRINCE) HON. NICHOLAS UKACHUKWU
(For themselves and on behalf of the other Aspirants for the positions of Senators and Members Federal House of representatives From Anambra State on the Platform of the Peoples Democratic Party (PDP) and who were Successful in the primaries conducted by Senator WAKU on the 7/1/2011 and 8/1/2011 and thus became Candidates of the party in the General Election Stated for April 2011 for positions of Senate and Federal House of Representatives to Represent Anambra State in the same and whose names Are clearly set out in the verifying affidavit in Support of this application and in the grounds)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
ORDER
“Upon this motion Exparte dated and filed on the 12th day of January 2011 praying this Honourable court for the following reliefs:-
(i) Leave of the Honourable Court to enable the applicants apply for the order of judicial Review to wit, DECLARATION AND INJUNCTION and in terms of the reliefs set out in the statement in support of application that encapsulates the grounds and the verifying affidavit attached hereto which the applicants shall also make use of during the hearing of the application, “and so that any leave so granted shall act as an interim order of court staying further action or matters relating to or connected with the complaint of the applicants and in more specific terms. That the respondent should not receive any other list of names of candidates from the Peoples Democratic Party who are to contest in the election to the senate and federal House of Representatives on the platform of the party in the April 2011 election to represent Anambra State in the said National Assembly except it be the names of the applicants and the other successful candidates whose names are clearly and or specifically set out in the grounds and verifying affidavit attached to this application pending the determination of the substantive application.
AFTER READING the statement, the relief sought the grounds for the relief and as paragraph affidavit in support of the motion deposed to by PRISCILLA EZEBILO, Nigerian, Christian, litigation clerk in the law firm of Chuma Oguejiofor and Co. Solicitors of No. 8 Carter Street Ogui Enugu and filed at this court’s registry Awka.
AND AFTER FIEARING CHUMA OGUEJIOFOR with him E. N. Onyibor of counsel for the applicant urging court to grant the relief sought.
IT IS HEREBY ORDERED AS FOLLOWS:
1. Leave is hereby granted for the judicial Review sought.
2. The interim injunction sought is also granted that is to say, that the respondent should not receive any other list of names of candidates from the People Democratic Party who are to contest in the election to the senate and Federal House of Representatives on the platform of the party in the April 2011 election to represent Anambra State in the said National Assembly, except it be the names of the applicants and or the other successful candidates whose names are clearly and or specifically set out in the grounds and verifying affidavit attached to this application pending the determination of the substantive application.
3. The respondent shall be served within 8 days from today.
4. The applicants shall undertake to pay damages in case this order should not have been made.
Matter adjourned to 14/01/201 ISSUED AT AWKA under the seal of the court and the
hand of the presiding judge this 13th day of January, 2011”
OKOLIE JACINTA
REGISTRAR
For the order dated 11/4/2011 and shorn of the heading it reads as follows:-
ORDER
“UPON THIS MATTER coming up before this Honourable court for hearing. Chuma Oguejiofor Esq for Plaintiff. E Onyeabor Esq with him O. Ikpeazu SAN for Defendant S. O. Ibrahim with him.
Mike Akukwe Esq for party seeking to be joined.
AND UPON CHUMA OGUEJIOFOR informing the court that he has a motion on notice that order of court earlier made have not been obeyed and Onyechi Ikpeazu SAN also informing court that his client have just been served granted by court.
Adjourned to 17/2/2011 for hearing of the applications. Issued at Awka under the seal of the court and the hand of the presiding judge this 11th day of February, 2011”
VINCENT EYONG
REGISTRAR
Equally, for the order made on 25/3/2011, and shorn of the heading, it reads thus:-
ORDER
“UPON THIS MATTER coming up before the Honourable court for hearing C. Oguejiofor for applicant, (E. Onyibor Esq. and I. Onuamah Esq) with him. B. Osaka Esq (C. B. Anigbo Esq) with him for 1st Respondent/Applicant.
B. O. Obemadu Esq, (I. C. Nsofor Esq and M. K. Ani Esq) with him for 2nd Respondent/Applicant.
Philip Udeorah for PDP seeking to be heard.
AFTER HEARING that certain parties are in breach of the order of court earlier made ordering parties to maintain status quo from C. Oguejiofor and that court should protect its integrity.
Again that the earlier order should be ordered to continue.
IT IS HEREBY ORDERED THAT parties should maintain status quo until the matter is disposed off.
ISSUED AT AWKA under the seal of the court and the hand of the presiding judge this 25th day of March, 2011
VINCENT EYONG
REGISTRAR.
The main order as can be gleaned from the three orders under reference is that made on 13/1/2011, while the other two are follow ups. The main point I want to emphasize here is that the appellant hinged her candidacy in the election on the said order. This found expression in her brief of argument where it was submitted at page 16 paragraph 3:32 as follows:-
“The learned tribunal ought to have assumed jurisdiction in the matter, heard the petition and declared the appellant winner of the election based on the orders of the Federal Court Awka that were placed before it, the decision of Onyekweli Vs. INEC had empowered the tribunal to do so but sadly, rather than do so, it had misapplied the same decision to strike out the petition”
Further at page 17 paragraph 3:34, it was also contended that:-
“Had the learned tribunal applied the decision of the Court of Appeal in Onyekweli Vs. INEC supra properly to the present case, the fact that the Federal High Court Awka had already decided that the appellant was the candidate of the Peoples Democratic Party in the election should have made the tribunal find that candidature was not in issue before it, same having since been settled by the said decision of the Federal High Court”.
Now what is that decision that has permanently turned the table of candidacy in favour of the appellant? It was simply an exparte order of the said Federal High Court Awka based on a motion exparte praying for leave of the court to apply for the order of judicial review. The applicants in the said motion are Senator Annie Okonkwo and Prince Hon. Nicholas Ukachukwu (for themselves and on behalf of other aspirants for the positions of senators and members of House of Representatives from Anambra State on the platform of the PDP.
The summary of the said exparte order was that leave to apply for judicial review was granted followed by an interim injunction restraining INEC from receiving any other list of names of candidates from the PDP except that of those whose are set out in the verifying affidavit attached to the application pending the determination of the substantive application.
Two facts are very glaring here. Firstly that it was an exparte order and secondly, that it was made pending the determination of the substantive application for judicial review. The said application for judicial review connotes that there was a pre existing disagreement over the rightful candidature of the PDP in the pending election to the senate and House of Representatives and this disagreement apparently continued into the election that was held on 9/4/2011. I will come back to address the implication of this scenario vis a vis the provisions of the Electoral Act 2010 (as amended). Now regarding the exparte order made by the Federal High Court Awka and relied upon by the appellant to assert her right as the PDP candidate in the said election. The issue is, can the said exparte order be taken to have determined the rights of the parties in the case?
An exparte order is an order made by the court upon the application of one party to an action without notice to the other party. See Black Law Dictionary 9th Edition at page 1206. Consequently, it cannot determine the rights of the parties to an action because it does not provide the essential platform for the determination of issues in contention between the parties. In order words it is an anathema to the hallowed principle as couched in the latin maxim (Audi altarem patem) which means ‘hear the other party’. This is one of the twin pillars of justice that guarantees fair hearing in the determination of disputes between contending parties in a suit. In the instant case, the exparte order of the Federal High Court Awka made on 13/1/2011 only had an interim or temporary effect on the parties pending the determination of the application for judicial review which will then as a final decision dispose of the rights of the parties.
In drawing a distinction between a final order or judgment the supreme court in FALOLA VS UNION BANK OF NIGERIA PLC (2005) ALL FWLR (PT.251) 1435 at 1442 held that:-
“The test for determining whether a judgment or order is final or interlocutory as in this case is whether that judgment or order has finally and completely disposed of the rights of the parties in the case, so much so that if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the defend ant, it is conclusive against the plaintiff and no further reference can be made to the court in respect of the judgment or order.”
See also OMONUWA VS. OSHODIN (1935) 2 NWLR (pt.10) 924. In IGUNBOR VS AFOLABI (2001) 11 NWLR (pt.728) 148 at 165, their lordships per Karibi white (JSC) restated the position thus:-
“A final order or judgment at law is one which brings to an end the right of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issues or settles some stage or question but does not adjudicate the ultimate rights of the parties in the action….”
See also IWUEKE VS IMO BROADCASTING CORPORATION (2005) ALL FWLR (PT.288) 1025 AT 1038 – 1039.
FARDOUN VS MBC INTENATIONAL BANK LIMITED (2006) ALL FWLR (PT.297) 1130 AND WEST STEEL WORKS LTD VS IRON & STEEL WORKERS UNION (1986) 2 NSCC 786.
In OGOLO VS OGOLO (2006) ALL FWLR (PT 313) 1 SC. The Supreme Court at page 16 agreed that the correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceedings resulting in the order.In the instant case, the order of the Federal High Court Awka, (though Exparte) was made pending the determination of the application for judicial review. In other words it was not a final decision but an interim order meant to last for a while. Therefore, I really look askance at the propriety of the appellant dropping her anchor at this stage to assert herself as the rightful candidate of the PDP when the substantive suit that will legally determine that issue is still pending. What is more, it shows glaringly and without any iota of doubt that the issue in contention is a pre election matter which fortunately (I suppose) the appellant can still pursue to conclusion having been initiated in the Federal High Court, Awka even before the election that held on 9/4/2011.
I therefore agree entirely with the Respondents that the appellant’s case falls within the ambit of section 87 (9) of the Electoral Act 2010 (as amended) which provided as follows:-
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a state or FCT for redress.”
To avoid foisting a fait accompli on an aggrieved aspirant whose case might still be pending in court during the holding of an election, subsection (10) has been introduced by the legislature as a reassuring follow up to subsection (9) and it reads thus:-
“(10) Nothing in this section shall empower the courts to stop the holding of primaries or general election or the processes thereof under this Act pending the determination of a suit.”
To my mind, the genuine purport of subsections (9) and (10) is to enhance democratic process in the country by giving aggrieved aspirants the full opportunity to seek redress in the courts where they feel short changed without disrupting the electoral process through injunctions but not losing their mandate where the decision of the court is in their favour. Such were the situation in ONYEKWELI VS. INEC supra and OSAIKWE VS. INEC & ORS supra. The two subsections are indeed genuine innovative provisions introduced by the legislature under the Electoral Act 2010 (as amended) to give statutory effect to judicial pronouncements aimed at drawing a line of distinction between pre election and post election matters.
The learned counsel for the appellant had relied on the two cases above to contend that the trial tribunal ought to apply them in the appellant’s favour by hearing the petition. Unfortunately, the two cases are at variance with that of the appellant in that there were valid and subsisting final decisions of the Federal High Courts in both cases. Hence in ONYEKWELI VS. INEC supra, the Benin Division of this court held at page 354 of the report as follows:-
“The effect of the judgment of the Federal High Court which was annexed to the petition was that the appellant was at all material times the valid candidate of the PDP subject to this appeal. That judgment was not appealed against either by the party sought to be joined or the respondent in this appeal, as was decided by this court Enugu Division in OSAKWE VS INEC (2005) ALL FWLR (PT 261) 325 at 349. A judgment of the court is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with the responsibility for enforcement of judgment are obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction”.
In the instant case, there was no final and subsisting judgment of a court in favour of the appellant but an exparte order meant to last momentarily pending the determination of the substantive application.
The subsequent order of the Federal High Court Awka made on 25/3/2011 urged parties to maintain the status quo until the matter is disposed of. There is nothing before this court to show that the matter has been disposed of on the merit meaning that it is perhaps still pending. The issue in contention thus remains a pre-election matter. The appellant is free to proceed with the matter at the Federal High court including perhaps contempt proceedings for a breach of the exparte order where it is found necessary but not in an Election petition tribunal.
In the circumstance I hold that the trial tribunal was right in its finding that it lacks jurisdiction to entertain the appellant’s petition because it is predicated on pre-election issues.
On the issue of locus standi, it is my humble view that addressing the issue now will constitute an academic exercise having agreed with the trial tribunal that it lacked jurisdiction to even look into the petition having found that it is a pre-election matter. From the totality of the above, I hold that this appeal lacks merit and is hereby dismissed. The ruling of the trial tribunal delivered on 29/6/11 to the effect that it lacks jurisdiction to entertain the petition because it is predicated entirely on pre-election issues is hereby affirmed.
I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I agree.
ABDU ABOKI, J.C.A.: I agree.
Appearances
Chuma Oguejiofor with E. OnwuamahFor Appellant
AND
Arthur-Obi Okafor (SAN) with J. O. Nwankiti (Miss) for 1st Respondent.
S. O. Ibrahim Asst. Chief Legal Officer (INEC) for 2nd Respondent.
Emeka Ajaegbo for 3rd Respondent.For Respondent
