LAWRENCE OZOEMENA EZEH v. CHIMAROKE OGBONNIA NNAMANI & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2019
PRACTICE AND PROCEDURE: CAUSE OF ACTION: DEFINITION AND HOW THE COURT DETERMINES CAUSE OF ACTION IN A SUIT
It is the principle of law that in the determination of what the cause of action is in a suit, the Court must look only at the statement of claim. In the case of BELLO VS. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (PART 45) PAGE 828, it was held:
“the law is settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving a Plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredients of an enforceable right” In the case of AKILU VS. FAWEHINMI (1989) 2 NWLR (PART 102) PAGE 122, it was held that:
“concisely stated, an act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action”
The Stroud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” ” PER MOHAMMED BABA IDRIS, J.C.A.
COURT: WHETHER A COURT CAN MAKE AN ORDER BASED ON MERE SUBMISSIONS MADE TO IT
In the case of FBN PLC VS AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR ? 7496, it was held:
“It is surprising that a Court would Ignore the application, prayers and affidavit evidence before it and make an order based on the mere submission of counsel. The submissions of counsel cannot be a substitute for evidence.”
Also, in the Supreme Court case of CHUKWUJEKWU VS. OLALERE & ANOR (1992) 2 NWLR (PART 221) PAGE 86, it was held:
“It is now trite law that no matter how brilliant and persuasive counsel’s submission may be, it can never metamorphose to evidence.”
All submissions made by counsel to the Appellant on this issue cannot take the place of the evidence conveyed by the affidavit in support of the Originating Summons. PER MOHAMMED BABA IDRIS, J.C.A.
PRACTICE AND PROCEDURE: WHEN AN ACTION WILL BE CONSIDERED ACADEMIC
Delving into the substance of the appeal and other issues raised in the appeal will be regarded as an academic exercise.
In the Supreme Court case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PART 967) PAGE 346 AT 419, it was held per Niki Tobi, JSC that:
‘A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.’
In the recently decided Supreme Court case ofAKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PART 1628) PAGE 592 AT 595, it was held per Okoro, JSC that:
“It is trite law that Courts do not expend valuable judicial time and energy on academic issues or exercise.”
Finally, in the Supreme Court case of POPOOLA VS. STATE (2018) 10 NWLR (PART 1628) PAGE 485 AT 496, it was held per Rhodes-Vivour, JSC that:
“It is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty, Judges are to decide live issues.” PER MOHAMMED BABA IDRIS, J.C.A.
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
LAWRENCE OZOEMENA EZEH Appellant(s)
1. CHIMAROKE OGBONNIA NNAMANI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES DEMOCRATIC PARTY Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an originating summons filed on the 18th of December, 2018, before the Federal High Court sitting at the Federal Capital Territory, Abuja, the Appellant as Plaintiff instituted the action giving rise to this appeal wherein he sought before the Court the determination of the following questions:
1. Whether from the proper interpretation of the provisions of Section 117(4) of the Evidence Act Laws of the Federation, the 1st Defendant does not have a duty to personally appear before the Commissioner of oaths to depose to the sworn affidavit filed with the 2nd Defendant as part of the legal requirement for the contest of the Senatorial seat for Enugu Senatorial District of Enugu State.
2. Whether the 1st Defendant having not physically and personally sworn the purported affidavit filed with the 2nd Defendant in the presence of the Commissioner of Oaths in line with the provisions of Section 117(4) of the evidence Act is eligible to contest an election for the position of Senator in Enugu East Senatorial District of Enugu State.
3. Whether the non-deposition of the purported Sworn affidavit filed by the 1st Defendant with the 2nd Defendant does not amount to automatic disqualification of the 1st Defendant for contravening Section 117(4) of the Evidence Act.
4. Whether it is legal for the 2nd Defendant to allow the 1st Defendant to contest an election for the position of a Senator for Enugu East Senatorial District in view of the 1st Defendant not to have personally sworn the Affidavit filed with the Zed Defendant before Commissioner for oaths.
5. Whether the purported sworn affidavit filed by the 1st Defendant with the 2nd Defendant is not illegal, null, void and of no effect whatsoever.
1. A DECLARATION that the 2nd Defendant has a duty pursuant to the provisions of the Evidence Act and Electoral Act not to recognize the candidate of the 1st Defendant for contravening the provisions of Section 117(4) of the Evidence Act.
2. A DECLARATION that having regard to the contravening of Section 117(4) of the Evidence Act by the 1st Defendant and the continued recognition of the 1st Defendant by the 2nd Defendant as PDP Candidate for Enugu Senatorial Seat is illegal and unlawful.3. A DECLARATION that the 2nd Defendant as the Nation’s Electoral Umpire has a duty not to hold out the 1st Defendant as the PDP Candidate for Enugu East Senatorial Seat having regard to the contravention of Section 117(4) of the Evidence Act.
4. A DECLARATION that the purported candidature of the 1st Defendant to the position of a Senator to the Enugu East Senatorial Seat is illegal, null and of no effect whatsoever.
5. A DECLARATION that in view of the contravention of Section 117(4) of the Evidence Act, the 2nd Defendant is liable to disqualify the 1st Defendant forthwith.
6. AN ORDER directing the 2nd Defendant not to accord/and or stop further according the 1st Defendant recognition or in any way treating the 1st Defendant as the PDP Senatorial Candidate for Enugu Senatorial Zone.
7. AN ORDER compelling the 2nd Defendant to invoke the relevant provisions of the Evidence Act and the Electoral Act to disqualify the 1st Defendant.
8. AN ORDER compelling the 2nd Defendant to stop further parading or holding the 1st Defendant as the PDP Senatorial Candidate for Enugu East.
9. AN ORDER of perpetual injunction restraining the 1st Defendant from parading or holding out himself as the PDP Candidate for the Enugu East Senatorial Zone.
In the affidavit in support of the Originating Summons the Appellant deposed that he is a politician and the candidate of the All Progressive Congress for the Enugu East Senatorial District/Zone. He stated that part of the legal requirements stipulated by the 2nd Respondent for eligibility to contest Senatorial Election is the completion and submission of 2nd Respondent’s FORM CF001 known as Independent National Electoral Commission – Affidavit in support of Personal particulars of persons seeking election to the office or membership of senate which must be sworn before a Commissioner for oaths. He further deposed to the fact that he was very sure that the 1st Respondent whose residence is the United States of America for the past 1 year had not come to Nigeria. He annexed the purported Form CF001 filled by the 1st Respondent which was marked as Exhibit A, stating that even though he was sure it was signed by the 1st Respondent, it was not sworn to before a Commissioner for oaths in Nigeria as provided by the law. The said Form CF001 was deposed to on the 16th of October, 2018.
He further stated that the only way to show whether or not the 1st Respondent was in Nigeria are his International Passport and Immigration Documents. Finally, he stated that the fact that the 2nd Respondent allowed the 1st Respondent to contest in the election despite the defect in Form CF001 has impugned and affected his right as a candidate.
By a motion on notice dated the 21st of February, 2019, the 3rd Respondent brought an application, seeking to be joined as a necessary party for the proper determination of the suit. The said motion for joinder was granted.
The 1st Respondent filed a counter affidavit in opposition to the originating summons, deposing to the fact that he permanently resides in Nigeria, stating that the depositions of the Appellant in the Affidavit in support of the originating summons are mere speculations. He stated that the said Form CF001 was signed and sworn to by him at the High Court of Enugu before a Commissioner for oaths.
The 3rd Respondent filed a counter affidavit in opposition to the Originating summons, deposing to the fact that the 1st Respondent is an active member of the 3rd Respondent and is permanently resident in Nigeria and the deposition of the Appellant that the 1st Respondent resides in the United State of America and had not visited Nigeria in the last 1 year is false. They also stated that the Form CF001 was signed and sworn to by the 1st Respondent before the Commissioner for Oaths at the High Court of Enugu State, thus, fulfilling all the requirements laid down by law.
On the 1st of March, 2019, the 1st Respondent filed a preliminary objection, seeking an order of Court, dismissing the suit for want of jurisdiction on the grounds that based on the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (1999) 4th Alteration, the suit was statute barred having been filed after the 14 days period stipulated by the law, the Appellant had no locus standi to institute the suit and lastly, the Appellant had no cause of action. In the affidavit in support of the preliminary objection, it was deposed that the said Form CF001 complained against by the Appellant was signed on the 16th of October, 2018 and was received by the 2nd Respondent on the 18th of October, 2018. But the Appellant only instituted the action on the 18th of December, 2018 which means it was instituted sixty two days after the date of the action complained of was done. Als