SENATOR CHRISTIANA N.D. ANYANWU V. HON. INDEPENDENCE CHIEDOZIEM OGUNEWE & ORS
(2012)LCN/5653(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2012
CA/OW/224/2011
RATIO
APPEAL: GROUND OF APPEAL MUST ARISE FROM THE JUDGMENT OF THE LOWER COURT
It is settled law that a ground of appeal as well as any issue distilled therefrom and the argument proffered in respect thereof must arise from the judgment of the Lower Court being appealed against. In the instant case, it is clear that Ground 2 of the grounds of appeal does not arise from the judgment of the Lower court and for a Ground of appeal to be valid and competent it must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.PER UWANI MUSA ABBA AJI, J.C.A
APPEAL: GROUND OF APPEAL: WHEN A GROUND OF APPEAL DOES NOT ARISE FROM THE JUDGMENT
Where therefore, a ground of appeal as formulated does not arise from the judgment appealed against and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant Ground 2 of the Grounds of appeal, the same becomes incompetent end liable to be struck out. See CCB Plc vs. Ekperi (2007) 3 NWLR (PT 1022) 493 at 509.PER UWANI MUSA ABBA AJI, J.C.A
ISSUE: WHETHER AN APPELLANT NEEDS LEAVE TO RAISE FRESH ISSUE FOR THE FIRST TIME ON APPEAL
It is trite that an Appellant needs the leave of Court to raise and canvass a fresh Issue for the first time on appeal which was not raised in the trial Court.
See Eze Yusuf vs. Union Bank Plc. (1996) 6 SCNJ 203 at 213.PER UWANI MUSA ABBA AJI, J.C.A
ELECTION PETITION: EFFECT OF A POLITICAL PARTY NOMINATING A CANDIDATE FOR AN ELECTION CONTRARY TO ITS OWN CONSTITUTION
In Uzodinma vs. Izunaso (No.2) (2011) NWLR (PT.1275) 30 at 60, the Supreme Court, Rhodes-Vivour, JS, held as follows:
“But where a Political Party nominates a candidate for an election contrary to its own Constitution and guidelines, a dissatisfied candidate has every right to approach the Court for redress. In such a situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the Political Party complies fully with legislation on the issue of nomination, The Courts will never allow a Political Party to act arbitrarily or as it likes. Political Parties must obey their own Constitution, and once this is done, there would be orderliness and this would be good for politics and the country.”PER UWANI MUSA ABBA AJI, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
SENATOR CHRISTIANA N.D. ANYANWU Appellant(s)
AND
1. HON. INDEPENDENCE CHIEDOZIEM OGUNEWE
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
UWANI MUSA ABBA AJI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Owerri presided over by the Hon. Justice L. Akanbi, whereby the Suit filed by the Plaintiff (now 1st Respondent) against the Appellant and the 2nd, and 3rd Respondents was struck on the 29th day of March, 2011.
The Plaintiff, (herein after referred to as the 1st Respondent) by an originating summons dated the 11th day of February, 2011 and filed on the same date sought for the determination of the following eleven (11) questions as follows:
1. Whether the rights of the Plaintiff to be presented by All Progressive Grand Alliance (APGA) the party of his choice and membership, as the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 have been infringed by the 1st defendant by submitting to the 2nd defendant as the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election the name of the 3rd defendant, Senator Christiana N. D. Anyanwu who was neither member of APGA nor factually took part in the said Primary election.
2. Whether the All Progressives Grand Alliance (APGA) has any power to present and/or otherwise submit the name of Senator Christiana N. D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011.
3. Whether the All Progressives Grand Alliance (APGA) has any power to sponsor Senator Christiana N.D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election save and/or except as prescribed by Sections 65(1) (a) and (2) (b) of the Constitution of the Federal Republic of Nigeria 1999.
4. Whether the All Progressives Grand Alliance (APGA) has any power to sponsor Senator Christiana N. D. Anyanwur who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election save and/or except as prescribed by Article 7(1)(b) and 2(c) of the Constitution of All Progressives Grand Alliance (APGA).
5. Whether in view of Article 7(1)(b) and 2(c) of the Constitution of All Progressives Grand Alliance (APGA), the said (APGA) has any power to manifest and otherwise publish on their Primaries Ballot Paper the photograph and name of Senator Christiana N. D. Anyanwu, who was at all material times before and after the APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) and who voted as a delegate in PDP’s special Convention/Presidential Primaries held in Eagle Square Abuja on the 13/14th of January, 2011.
6. Whether the Independent National Electoral Commission (INEC) has any power to accept Senator Christiana N. D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election.
7. Whether the Independent National Electoral Commission (INEC) has any power to accept any person nominated by any political party to contest as Senatorial Candidate in 2011 general election save and/or except as prescribed by Section 87(1), (2), (3), (4)(c) of the Electoral Act 2011 of Federal Republic of Nigeria.
8. In view of the clear provisions of Section 85 (1), (2) (3); Section 86(1) and Section 87(1); whether the Independent National Electoral Commission (INEC) has any power to accept Senator Christiana N. D. Anyanwu, after receiving executive summary from its office in Imo State duly signed by its principal officers there setting out the result of APGA’s Primary elections including that of Imo East Senatorial Election clearly showing that Hon. Independence Chiedoziem Ogunewe won the said primaries and not Senator Christy Anyanwu.
9. Whether it is proper and lawful for Senator Christiana N. D. Anyanwu or any person at all to belong to two political parties simultaneously.
10. Whether it is not proper, lawful and obligatory for the All Progressive Grand Alliance (APGA) to Present and/or otherwise submit to INEC the name of HON. INDEPENDENCE OGUNEWE who as valid member of APGA factually participated in the said APGA’s Primary Election on 14th January, 2011 as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011.
11. Whether it is not proper, lawful and obligatory for the Independent National Electoral Commission (INEC) to reject and/or otherwise refuse to accept the name of Senator Christiana N. D. Anyanwu as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 for being a member of two political parties, PDP and APGA simultaneously.
He then sought for the following reliefs:
1. DECLARATION that the rights of the Plaintiff to be presented by All Progressive Grand Alliance (APGA) the party of his choice and membership, is the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 have been infringed by the 1st defendant by submitting to the 2nd defendant as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election the name of the 3rd defendant, Senator Christiana N. D. Anyanwu who neither was a member of APGA nor factually took part in the said Primary election.
2. DECLARATION that the inclusion, manifesting and publication of the name and photograph of Senator Christiana N. D. Anyanwu on APGA Senatorial ballot paper for Imo East Senatorial zone when she was a member of Peoples Democratic Party (PDP) is unlawful, illegal, null and void.
3. DECLARATION that the purported submission of the name of Senator Christiana N. D. Anyanwu by the 1st defendant to the 2nd defendant as APGA’S Senatorial Candidate for Imo East Senatorial zone in 2011 general election when she did not participate at all in APGA’s primary elections is unlawful, unconstitutional and therefore null and void and of no effect whatsoever.
4. DECLARATION that the 1st defendant is under obligation to submit to the 2nd defendant the name of the plaintiff as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
5. DECLARATION that the 2nd defendant is under obligation to reject the submission of the candidature of Senator Christiana N.D. Anyanwu as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
6. DECLARATION that the 2nd defendant is under obligation to accept the candidature of HON. INDEPENDENCE OGUNEWE AS APGA’S Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
7. DECLARATION that the 2nd defendant is under obligation to reject the candidature of any person from any party including APGA for 2011 general election except through party primaries.
8. AN ORDER striking out the name and photograph of from the APGA Senatorial ballot paper for Imo East Senatorial zone for not being a member of the said APGA before, during and after the 14th January 2011 APGA primaries for Imo East Senatorial Zone.
9. AN ORDER compelling the 1st defendant to submit the name of the plaintiff to the 2nd defendant to wit HON. INDEPENDENCE OGUNEWE as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
10. AN ORDER compelling the 2nd defendant to publish by displaying or causing to be displayed the name of HON. INDEPENDENCE OGUNEWE at the relevant offices of the commission or the commission’s web site as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
11. AN ORDER, prohibiting the 2nd defendant from publishing by displaying or causing to be displayed the name of Senator Christy Anyanwu at the relevant offices of the commission or the commission’s web site as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election,
12. AN ORDER deeming the name of HON. INDEPENDENCE OGUNEWE as the right, lawful and proper APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
In a nutshell, the facts of the 1st Respondent’s case as can be gleaned from the processes filed are that the Appellant is not a member of All progressive Grand Alliance (APGA), the 2nd respondent and her name should not have been forwarded to the Independent National Electoral Commission (INEC), (the 3rd Respondent) by the 2nd Respondent as the candidate of All Progressive Grand Alliance for the Imo East Senatorial District Election for April, 2011.
The Appellant and the 2nd Respondent’s case is that the Appellant was a member of the All Progressive Grand Alliance for the said Senatorial district election.
In a considered Judgment delivered on the 29th March, 2011, the Learned trial Judge inter alia held as follows:-
“In the case of the Plaintiff at hand, the facts are seriously in contentious dispute. The appropriate method of initiating the proceedings is not by originating summons. When Suit is commenced by an originating summons instead of writ of summons, the appropriate Order is usually that one made by the Court directing the Suit to proceed with the filing of pleadings.
However, that Order will not be made by the Court where nothing will be derived therefrom. See Emezi vs. Osuagwu (2005) 11 NWLR (Pt. 939) 340 at 347 – 348.” (See pages 473 to 474 of the Record of Appeal).
The Court concluded:
“In the final analysis, I hold that the Plaintiff’s Suit which was commenced by Originating Summons has been improperly initiated and from the facts and circumstances of this case, I hold that an order for filing of pleadings is inappropriate herein as nothing will be derived therefrom.
A fortiori, the Plaintiff’s case is hereby struck out for being incompetent.” (See page 475 of the Record of Appeal).
Interestingly, it was the 3rd Defendant (hereinafter referred to as the Appellant) in whose favour the Suit was decided that felt dissatisfied with the above findings by the Learned Trial Judge and appealed to this Hon. Court vide a Notice of Appeal dated 25th May 2011 and filed on the 1st June, 2011 upon the following two (2) grounds of appeal as hereunder reproduced without their particulars:
Ground 1:
The Learned trial judge erred in law by striking out the Suit instead of dismissing it.
Ground 2;
The Learned trial judge erred in law when he heard the case despite the fact that he had no jurisdiction to do so.
The 1st Respondent the Plaintiff at the trial Court, with the leave of the Court granted on the 23rd day of January, 2012, filed a Notice of Cross Appeal in this appeal on 30th day of January, 2012 containing three grounds of appeal as hereunder reproduced, also without their particulars as follows:
Ground 1: Error in Law
The Learned Trial Judge erred in law when he struck out Suit No. FHC/OW/CS/31/2011 instead of an order calling for the filing and exchange of pleadings by the parties and this occasioned a gross miscarriage.
Ground 2: Misdirection in law
The Learned Trial Judge misdirected himself in law he held thus:
“In the final analysis, I hold that the Plaintiff’s Suit which was commenced by originating summons has been improperly initiated and from the facts and circumstances of this case, I hold that the Order for filling of pleadings is inappropriate herein as nothing will be desired therefrom. A fortiori, the Plaintiff’s case is hereby struck out for being incompetent,” and this occasioned a gross miscarriage of Justice.
Ground 3: Error in Law
The judgment of the Lower Court in Suit No. FHC/OW/CS/31/2011 is against the weight of evidence before the Court.
I will now proceed to consider the main appeal.
The Appellant’s brief of argument settled by Emeka O. Nwagwu, Esq. distilled two issues for determination of the appeal as follows:
(i) Whether an order of striking out instead of an order of dismissal was appropriate in the circumstance of this case.
(ii) Whether the Lower Court had jurisdiction to entertain the case.
The 1st Respondent/Cross Appellant’s brief of argument settled by K. C. Nwufo, Esq. distilled a sole issue for determination as follows:
Whether an order of striking out of the Suit instead of an order for dismissal of the Suit was proper in the circumstances of this Suit?
The 2nd Respondent’s brief of argument settled by Prince Orjli Nwafor Orizu, Esq. adopted the issues for determination as formulated by the Appellants.
The 3rd Respondent’s brief of argument settled by Chief A. T. Udechukwu, Esq. formulated a sole issue for determination to wit:
Whether by a community reading of the entire judgment, the subject matter of this appeal, the Learned Trial Judge did not in fact dismiss the entire Suit as lacking in merit.
I have given due consideration to the issues for determination formulated by the respective Counsel and I am of the view that the two issues formulated by the Appellant and adopted by the 2nd Respondent encapsulates the lone issue formulated by the 1st Respondent and also that of the 3rd Respondent. I will in the circumstances adopt the issues formulated by the Appellant in the determination of this appeal.
Issue No. 1
Whether an Order of striking out instead of Order of dismissal was appropriate in circumstances of this case.
Learned Counsel for the Appellant E.O. Nwagwu, Esq. submitted that an Order of dismissal was the appropriate Order to make in the circumstances of this case and not an Order of striking out of the Suit. He submitted that the lower Court after reviewing the processes filed in the Court, the addresses of Counsel and the law, apply the rational given by the Supreme Court in the case of Emezi vs. Osuagwu (2005) 2 NWLR (Pt.939) 340 at 348 to strike out the Plaintiff’s case for being incompetent. It is his view that the finding of the trial court to the effect that nothing will be derived if pleadings were ordered presupposes that the 1st Respondent did not prove anything that would warrant the ordering of pleadings and that in any case, the 1st Respondent’s failure to place before the lower Court the constitution of the All Progressives Grand Alliance which he wanted the Court to construe and interpret is fatal to the case of the 1st Respondent. That by virtue of Sections 131(1) and (2) and 133(1) of the Evidence Act, 2011, the burden was on the 1st Respondent to produce such constitution. It is also his view that the failure to produce the constitution of APGA raises tie presumption created by section 167(d) of the Evidence Act, 2011, that, if the constitution is produced it would be unfavourable to the 1st Respondent. On this he relied on the case of Agbi vs. Ogbeh (2006) All FWLR (Pt. 329) 941 at 979 and submitted that the appropriate order for the court to make in the circumstances of this case on appeal is an Order of dismissal as nothing will be derived if pleadings are filed.
The Court was urged to make an order dismissing this appeal and to resolve the issue in favour of the Appellant.
In his response, the Learned Counsel for the 1st Respondent, Mr. Nwufo Esq., submitted that the Order of striking out of the Suit instead of an Order for dismissal of the Suit was more proper notwithstanding the fact that the Order for filing of pleadings would have been most proper in the circumstances of the suit. He submitted that the Learned Trial Judge did not consider the merit of the Suit before him. He submitted that the learned trial Judge found that the Plaintiff’s suit can properly be grounded under the provisions of Section 31(2) and (5) of the Electoral Act (2010) as amended and under Section 65(2) of the 1999 Constitution but found that the depositions in the Plaintiffs affidavit and those in the Counter affidavit of the 1st and 3d Defendants are contentious and in serious controversy and held that it cannot be determined by way of an originating summons in that the use of originating summons was inappropriate in the circumstances of the case. He submitted that the trial Judge decline to decide the suit on its merit because he found the originating summons unnecessary in the determination of the Suit and the proper Order to make, the suit being contentious is not to strike out the Suit but Order for the filing of pleadings by the Parties.
Learned counsel further submitted that in striking out the Suit, the learned trial Judge erroneously misapplied and placed reliance on the decisions in Emezi vs. Osuaowu (supra) where it was held that the Order for filing of pleadings will not be made in that contentious case initiated by way of Originating Summons and submitted that the rationale for not ordering pleadings in Emezi vs. Osuagwu (supra) was because the Court found as a fact that the Plaintiff had no locus standi to institute the suit and that the instant case is not a chieftaincy dispute requiring the Plaintiff to show his locus standi to institute the Suit.
It is also submitted that the learned trial Judge held in his Judgment that both sections 31(2) and (5) of the Electoral Act and 65(2) of the 1999 Constitution availed the Plaintiff the locus standi to institute the Suit and urged the Court to hold that the decisions in Emezi vs.Osuagwu (supra) and Ezeigwe vs. Nwawulu (supra) are inapplicable to the circumstances of this Suit. The court was urged to resolve this issue against the Appellant.
In his response, Learned counsel for the 2nd Respondent, Prince Orji Nwafor-Orizu Esq., submitted that the lower court without doubt found that me case of the Plaintiff is contentious and that in such a case, the general procedure is to order pleadings to be filed by the parties but it relied on Emezi vs. Osuagwu (2005) 11 NWLR (Pt. 939) 340 at 347 to 348 to strike out the case holding that nothing will be derived from the order of pleadings. It is his view that way the orders or reliefs sought by the Appellant were couched, Sections 31(1) and 87(10) of the Electoral Act 2010 tied the hands of the Court as it has no Jurisdiction to try the suit. He stated that the question of locus standi in Emezi’s case is an issue of Jurisdiction and once the party has locus standi to institute the suit, the Court will have no competence to order filing of pleadings and that the Court rightly strike out the suit as it has no Jurisdiction to continue with the hearing of the suit.
Learned Counsel referred to Sections 31(1), 34 and 87(1) of the Electoral Act 2010 as amended and paragraphs 8 to 11 of the reliefs claimed by the 1st Respondent to submit all the reliefs sought are taken by the event of the holding of the election only 7 days away, and the reliefs are not grantable.
In his own response, Learned Counsel for the 3rd Respondent Mr. A.T. Udechukwu Esq., submitted that in refusing to order pleadings, the trial Judge considered the provisions of Sections 31(1) 32 and 87(ii) of the Electoral Act 2010 as amended and the Supreme Court decision in Emezi vs. Osuagwu (2005) 2 NWLR (Pt. 939) 340 at 349; and Ezeigwu vs. Nwawulu (2010) 4 NWR (Pt. 1183) 159 at 170 and found no merit in ordering pleadings, the suit being incompetent. He cited and relied on the unreported decision of the Supreme Court in Garuba Lado vs. CPC. SC.157/2011 and SC.334/2011 delivered on 16th December, 2011.
He further submitted that Sections 31(1), 32 and 87(ii) of the Electoral Act, 2010 as amended creates special circumstances and therefore the trial Court rightly held that the suit will serve no useful purpose if pleadings are ordered because the affidavit evidence shows the 2nd Respondent had already submitted the name of the Appellant to the 3rd Respondent which it accepted as the candidate of the 2nd Respondent.
I have considered the submissions of Learned Counsel on this issue. The complaint of the Appellant is simple and it is that the Learned trial Judge having found that nothing will be derived from ordering pleadings, the trial Judge ought in the circumstances to have dismissed the Suit instead of striking out same.
The Learned trial Judge in determining the suit before him formulated three (3) issues for determination to wit:
(i) Whether the use of originating summons by the Plaintiff is appropriate in the circumstances and on the facts of this case.
(ii) If the answer to Issue 1 is in the affirmative, whether the Plaintiff has proved his case on the preponderance of evidence.
(iii) If the answer to Issue 1 is in the negative, what is the appropriate order to make in the peculiar circumstance and facts of this case.
In considering issue 1, the learned trial Judge came to the conclusion as follows:
“I am therefore of the humble view and I so hold that the facts are not only in serious controversy, they are also eminently contentious, there is therefore the need for oral evidence to know or see where the truth lies…This is because, the fact that is very crucial to the determination of this Plaintiff’s issues raised under consideration remains the issue of membership of the 3rd Defendant of APGA. In other words, the information supplied by the 3rd Defendant to APGA as to her membership of APGA to disqualify her to stand the primary election is being seriously contented… It is for the forgoing reasons that I answer Issue 1 in the negative.” (See page 471 of the Record of Appeal).
It is clear from the above findings by the learned trial Judge that the use of originating summons in the circumstances of this case was in appropriate. This being so, the Learned trial Judge declined to consider Issue 2 because the Suit was not properly initiated by way of originating summons instead if by way of writ of summons. It is therefore clear that the Suit was not decided on its merit.
His issue 3 deals with appropriate order to make in the circumstances of the case and at the conclusion held on follows:
“In the case of the Plaintiff at hand, the facts are seriously in contentious dispute. The appropriate method of initiating the proceedings is not by originating summons. When a Suit is commenced by originating summons instead of writ of summons, the appropriate order is usually that one made by the Court directing the Suit to proceed with the filing of pleadings.
However, that order will not be made by the Court where nothing will be derived therefrom. See Emezi vs. Osuagwu (2005) 11 NWLR (Pt.939) Pg.340 (SC) at 347 – 348.” (See page 473 of the Record of Appeal)
The Learned trial Judge considered the provisions of Sections 31(1), 32 and 87(ii) of the Electoral Act, 2010 as amended, and found with only 7 days to the holden of the General Election, apply the rational given by the Supreme Court in Emezi vs. Osuagwu (Supra) and strike out the Suit as against an order for filling of pleadings.
I have gone that far into the decision of the trial Court to show ex facie that the Suit before it was not determined on its merit.
The Learned trial Judge still while reviewing the facts of the Plaintiffs case also held as follows:
“The Plaintiff is impliedly saying that the list of information submitted by the 3rd Defendant ” indicating that she had- fulfilled all the constitutional requirements for election into the office to which the primary election was conducted was false. If that be his case, which it is, then the provisions of Section 31(2)(5) of the Electoral Act will enure the plaintiff and his action can properly be grounded under that provision.” (See page 472 of the Record of Appeal).
This pronouncement by the Learned trial Judge clearly shows that the 1st Respondent has a cause of action and therefore the locus standi to present the Suit. He also found that the 1st Respondent’s right of action can be accommodated under Section 65(2) of the Constitution and stated that the type of action contemplated by that provision is a proceeding commenced by writ of summons.
All these findings of the learned trial Judge goes to suggest or show that, unlike the case of Emezi vs. Osuagwo (2005) 11 NWLR (PT 939) 340 at 347 – 348 where the Supreme Court refused to make an order for the filing of pleadings in a contentious case initiated by way of originating summons because the Plaintiff had no locus standi to institute the suit as he did not demonstrate how his right in the chieftaincy dispute was violated. The instant appeal is not a chieftaincy dispute requiring the Plaintiff to show his locus standi. The Learned trial Judge found as a fact in his judgment that both Sections 31(2)(5) of the Electoral Act and Section 65(2) of the 1999 Constitution availed the 1st Respondent the right (locus standi) to initiate the Suit. The proper order in the circumstance for the Court to make is an order for the filing of pleadings and not an order for striking of the suit as it did and in fact not an order of dismissal as urged on us to do in this appeal by the Appellants’ Counsel.
An order for dismissal sought in this appeal is highly misconceived for the simple reason that the case was not decided on its merit. This issue is therefore resolved against the Appellant.
Issue No. 2
Whether the Lower Court had jurisdiction to entertain the case.
Learned Counsel for the Appellant, Mr. E. O. Nwagwu, Esq. submitted that the Lower Court had no jurisdiction to entertain the case. He referred to the issues placed before the Lower Court for determination and the finding of the Court thereon that the issues bother on the 3rd Defendants membership of APGA when primary election was held on 14th January, 2011 in that the Appellant was an active member of the PDP and participated in the Presidential Primary Election of PDP held at Eagle Square Abuja from 13th – 14th of January, 2011, that the said finding was not appealed against and therefore conclusive and binding against on all the parties. He relied on Olukova vs. Ashiru (2006) ALL FWLR (PT 322) 1479; and Osunbor vs. Oshiomhole (2009) ALL FWLR (PT.463) 1366 at 1425.
Learned Counsel submitted that it is within the exclusive prerogative of a Political Party to determine who its members and candidates are and that it is not for the Court to determine and cited to the cases of Ezeigwe vs. Nwawulu (2010) ALL FWLR (PT.518) 794 at 821; All Nigeria Peoples Party vs. Usman (2009) ALL FWLR (PT.463) 1292 at 1329.
It is also submitted that the case of the 1st Respondent before the Lower Court was not a case of substitution of his name with that of the Appellant but that he was the candidate of the 2nd Respondent for the senatorial Election because the Appellant whose name was submitted was not a member of the 2nd Respondent. It is submitted that the Lower Court had no jurisdiction to entertain the Suit.
In his response, Mr. Nwufo, Esq. for the 1st Respondent submitted that this issue is grossly incompetent having not arisen from the judgment of the Court. He submitted that the issue of jurisdiction of the Lower Court to entertain the suit was not raised by the Appellant before the Lower Court and that no Notice of Preliminary objection to the jurisdiction of the Lower Court to entertain the Suit was raised.
It is also submitted that the Appellant is raising this issue before this Court for the first time without obtaining prior leave of this Hon. Court. He cited and relied on the case of Obi Eze Yusuf vs. Union Bank (1996) 6 SCNJ 203 at 213 and submitted that the Appellant’s Issue No. 2 formulated from ground 2 of the Notice of appeal is grossly incompetent as the prior leave of this Hon. Court to file Ground 2 of the Notice of Appeal as well as the formulation of the said Issue No. 2 therefrom were not sought and obtained by the Appellant before filing and arguing same. The Court was urged to strike out both the Ground 2 of the Notice of Appeal as well as Issue No. 2 arising therefrom.
Learned counsel also submitted that the fact that Appellant was not a member of APGA when the said primary election took place on 14th January, 2011 deprived the Lower Court of jurisdiction is grossly misconceived and that the cases of Olukoye vs. Ashiru (2006) ALL FWLR (PT 322) 1479 at q 1498 and Osobor vs. Oshiomhole (2009) ALL FWLR (PT.463) 1366 at 1425 did not support the case of the Appellant, and that the cases of Ezeigwe vs. Nwawulu (2010) ALL FWLR (PT.518) 794 at 821; ANPP vs. Usman (2009) ALL FWLR (Pt.463) 1292 at 1329 and Uzodinma vs. Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30 at 60 cited by the Appellant’s Counsel in support of the contention that the Court cannot question the prerogative of a political party to sponsor its candidate are misapplied in the light of the provisions of Sections 31(2)(5) of the Electoral Act, 2010 as amended and 65(2) of the 1999 Constitution of Nigeria. It is also submitted that the case of Uzodinma vs. Izunaso (No.2) (Supra) supports the fact the Court have jurisdiction to entertain the Plaintiff’s Suit.
Learned Counsel for the 2nd Respondent, Prince Orji Nwafor-Orinzu, Esq. argued issues 1 and 2 together, I find no meaningful argument canvassed on the issue of jurisdiction or lack of it. The position is the same in the 3rd Respondent’s brief of argument.
I have gone through the entire processes filed by the parties at the Lower Court and this include the 1st Respondent’s originating summons, the Counter Affidavits filed by the Appellant and the 2nd and 3rd Respondents in opposition to the originating summons. The further Counter Affidavit and better Affidavit filed thereof including the judgment of the Lower Court. I have not seen any where the issue of jurisdiction of the Lower Court to entertain the Suit before it was raised or canvassed and determined. I have not come across any Notice of preliminary Jurisdiction filed by the Appellant as 3rd Defendant challenging the jurisdiction of the Lower Court to entertain the Suit before it.
Before us here, there is no any application for leave to raise and argue any issue not canvassed before the trial Court. It is settled law that a ground of appeal as well as any issue distilled therefrom and the argument proffered in respect thereof must arise from the judgment of the Lower Court being appealed against. In the instant case, it is clear that Ground 2 of the grounds of appeal does not arise from the judgment of the Lower court and for a Ground of appeal to be valid and competent it must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.
Where therefore, a ground of appeal as formulated does not arise from the judgment appealed against and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant Ground 2 of the Grounds of appeal, the same becomes incompetent end liable to be struck out. See CCB Plc vs. Ekperi (2007) 3 NWLR (PT 1022) 493 at 509.
In the instant appeal, it is clear that the Appellant is raising the said issue of jurisdiction before this Court for the first time, without obtaining prior leave of this Court. It is trite that an Appellant needs the leave of Court to raise and canvass a fresh Issue for the first time on appeal which was not raised in the trial Court.
See Eze Yusuf vs. Union Bank Plc. (1996) 6 SCNJ 203 at 213. I therefore agree with the Learned Counsel for the 1st Respondent that the Appellant’s Issue No. 2 formulated from ground two of the Notice of Appeal is grossly incompetent as the prior leave of this Hon. Court to file the said ground as well as the formulation of the said Issue 2 therefrom were not sought and obtained by the Appellant before filing and arguing same. In the circumstances, the cases of Olukoya vs. Ashiru (supra); Osungbor vs. Oshiomhole (supra) do not avail the Appellant. Similarly, the case of Ezeigwe vs. Nwawulu (supra) ANPP vs. Usman (supra) and Uzodinma vs. Izunaso (No.2) (supra) are cited prematurely by the Appellant. I therefore resolved this issue against the Appellant.
Based on the foregoing, that is, having resolved the two issues in the appeal against the Appellant, the appeal is therefore without merit and it hereby dismissed.
CROSS APPEAL
In the Cross Appellant’s brief of argument settled by K. C. Nwufo, Esq. and filed on the 30th January, 2012, the following two issues were distilled for determination,
(i) Whether an order striking out of the Suit instead of an order for filing pleadings was proper in the circumstance of the Suit?
(ii) Whether it was proper for the Lower Court to have struck out the Suit merely because the National Assembly Elections were scheduled to hold seven days from the delivery of the judgment?
The Appellant/Cross Respondent’s brief of argument filed on the 29th February, 2012, was settled by Emeka O. Ngwagwu, Esq. Therein the Cross Respondent adopted the two issues formulated by the Cross/Appellant for determination.
In the 2nd Respondents brief of argument filed on the 20th February, 2012, settled by Prince Orji Nwufo, Esq,, two issues were distilled for determination to wit:
(i) Whether an order of striking instead of an order of dismissal was appropriate in the circumstances of this case;
(ii) Whether the Lower Court had jurisdiction to entertain the case.
In the 3rd Respondent’s brief of argument to the Cross appeal filed on 27th April, 2012 but deemed properly filed on the 31st may, 2012, settled by Chief A. T. Udechukwu, Esq. Learned Counsel submits a sole issue for determination to wit:
Whether the trial Judge was right in evaluating the affidavit evidence before the Court in reaching a decision that the Suit was incompetent.
This cross appeal will be determined on the issues formulated by the cross Appellant as I do not find any correlation with issues formulated by the Cross Appellant with that of the 2nd and 3rd Respondents.
I have considered the argument of Learned Counsel for the Cross Appellant on the two issues formulated and the response of the Learned Counsel for the Appellant/Cross Respondent therein and that of the 2nd and 3rd Respondents to the cross appeal and they are fundamentally the same in con with the arguments canvassed in the main appeal. In the circumstances, I need not review the submissions of Learned Counsel here but wish to adopt them in this cross appeal.
I just wish to reiterate once again that the Cross/Appellant’s Case before the trial Court was that the Appellant/Cross Respondent is not a member of the All Progressive Grand Alliance (APGA) and her name should not have been forwarded to INEC as the candidate of APGA for the Imo East Senatorial District Election for April, 2011.
The Learned trial Judge after a review of the processes filed by the respective Counsel found that the facts as deposed in the affidavit and the counter affidavit are not only in serious controversy but are also eminently contentious and there is therefore the need for oral evidence to know or see where the truth lies. It thus refused to order for the filing of pleadings by the parties as it should ordinarily have done but proceeded to strike the case relying on Emezi vs. Osuagwu (supra) that nothing would be derived if pleadings were ordered.
The Lower court declined to order for pleadings to be filed by the parties because it was under the misconception that the Appellant’s name having been forwarded to the INEC who had not only accepted it but also published her name for the said scheduled Election to hold in April 2011 and with about 7 days to the holding of the general election, that nothing would be derived therefrom. In other words, the Lower court was of the view that with about 7 days left to the conduct of the general election, the Court would no longer have jurisdiction to hear and determine the Suit. This is far from the reality in our legal jurisprudence. It is now trite that a Court which has jurisdiction to entertain an action would not subsequently loss that jurisdiction simply by reason of the conduct of the election to the office in contest. To refuse to do so would amount to the Court’s abdication of its constitutional and sacred duty of dispensing justice between parties and between government and other authorities. See Odedo vs. INEC (2008) 7 SCNJ at 39.
An aggrieved party who approached the Court for redress must be accorded redress if he establishes his right therefrom at the trial. In the instant appeal, the learned trial Judge found as a fact that the 1st Respondent/Cross Appellant has a right when he held that Section 31(5) of the Electoral Act and Section 65(2) of the 1999 Constitution as amended ensures the Plaintiff. The case of Emezi vs. Osuagwu (Supra) cannot be said to apply in the circumstance of this case. This is because, when a Plaintiff has been found not to have the standing to sue, the question whether issues in the case had been properly decided or not does not arise. This is so because the trial Court has no jurisdiction to entertain the claim. The correct position of the law is that where a Plaintiff is held to lack locus standi to maintain his action, the finding goes to the jurisdiction of the court and denies it jurisdiction to determine the action. The proper order to make in such a situation is therefore to strike out the claim. See Madukolu vs. Nkemdilim (1962) ANLR 581; Thomas vs. Olufusoye (1986) 1 NWLR (PT 18) 669.
It is clear that the complaint before the Lower Court is a pre-election matter and I have found in this judgment that the jurisdiction of the Court is not ousted by the holding of the election. This is because the Court’s jurisdiction in relation to complaints arising from primary election of political parties as in the instant appeal is limited only to whether the primary election conducted by the party for nomination of a candidate was conducted by the party in line with the provisions of the Electoral Act 2010 as amended, the party’s Constitution and the party’s guideline. The Lower Court ought not to have strike out the Plaintiffs Suit but to order parties to file pleadings and I so hold. See Emenike vs. PDP (2012) 5 NWLR (PT 1294) 555.
In Uzodinma vs. Izunaso (No.2) (2011) NWLR (PT.1275) 30 at 60, the Supreme Court, Rhodes-Vivour, JS, held as follows:
“But where a Political Party nominates a candidate for an election contrary to its own Constitution and guidelines, a dissatisfied candidate has every right to approach the Court for redress. In such a situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the Political Party complies fully with legislation on the issue of nomination, The Courts will never allow a Political Party to act arbitrarily or as it likes. Political Parties must obey their own Constitution, and once this is done, there would be orderliness and this would be good for politics and the country.”
The Cross Appellant’s Suit having been instituted before the conduct of the general elections was not affected by the fact that the judgment was to be delivered seven days to the conduct of the general elections. His interest in the Political contest was kept alive by that Suit, See Hassan vs. Aliyu (2010) ALL FWLR (PT 539) 1007 at 1046.
Based on the foregoing, I am of the firm view that the Cross appeal has merit and it is hereby allowed. The judgment of the Lower Court delivered on the 29th day of March, 2011 is hereby set aside. The Suit is hereby remitted to the Federal High Court Owerri for trial on the merit.
Parties to bear their respective costs.
MOJEED A. OWOADE, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother UWANI MUSA ABBA AJI, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal and allow the Cross-Appeal.
HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading before now, the judgment just delivered by my learned brother Uwani Musa Abba Aji, JCA (Presiding).
My learned brother adequately considered all the pertinent issues that arose for determination in this appeal, and admirably resolved them. I totally agree with his reasoning and conclusion thereon. I have nothing else useful to add. In the circumstances, I agree that the appeal has no merit and is hereby dismissed by me. I also agree that the Cross-Appeal is meritorious and should be allowed. I accordingly allow the Cross-Appeal. The judgment of the lower court delivered on the 29/3/2011 is hereby set aside. I also abide by the consequential orders made in the lead judgment including the order as to cost.
Appearances
Emeka Nwagwu, Esq with A.I. Nwachukwu, Esq and R. Mbah, Esq.For Appellant
AND
K.C. Nwufo, Esq., with A.N.N. William Esq. for the 1st Respondent/Cross Appellant
Prince Orji Nwafor-Orizu Esq. for the 2nd Respondent
Chief A.T. Udechukwu Esq. for the 3rd RespondentFor Respondent
