SOCIAL DEMOCRATIC PARTY v. DR. CASMIR ANYANWU & ORS
(2019)LCN/13190(CA)
In The Court of Appeal of Nigeria
On Saturday, the 4th day of May, 2019
CA/OW/99/2019
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
SOCIAL DEMOCRATIC PARTY (SDP) Appellant(s)
AND
1. DR. CASMIR ANYANWU
2. HON. CHIEF OKEY EZE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
RIGHT OF PARTIES TO ADDRESS THE COURT
The rights of the parties to address the Court either by counsel or in person was not availed them by the trial Court which adhered unnecessarily to technicalities. This right to address has been emphasised by the superior Courts in Okoebor Vs. Police Council (2003) LPELR 2458 (SC), Niger Construction Ltd. Vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787. Obodo Vs. Olomu(1987) 3 NWLR (Pt. 59) 111, Mains Ventures Ltd. Vs. Petroplast Industries Ltd. (2000) LPELR 6868 (CA) Zenith Plastics Industries Ltd. Vs. Samotech Ltd. (2018) LPELR 44056 SC. The judgment of the trial Court in FHC/OW/CS/137/2018 is hereby vacated. The Chief Judge of the Federal High Court is hereby ordered to transfer the case to another judge to be heard and determined de novo. PER AGBO, J.C.A.
RAPHAEL CHIKWE AGBO, J.C.A.(Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court in Suit NO. FHC/OW/C3/137/2018 delivered at Owerri on 5th March 2019. The said suit was commenced by originating summons wherein the 1st Respondent as Plaintiff set out the following questions for determination to wit: –
?1. Whether having regard to the provision of the Section 87 (1 & 2) of the Electoral Act of 2010 (as amended), the 1st Defendant can appoint, impose or select the 2nd Defendant as the governorship candidate of the 1st Defendant in Imo State, when the 2nd Defendant did not participate in the primary election for the selection of the governorship candidate of the 1st Defendant.
2. Whether having regards to Section 87 (4)(b) of the Electoral Act 2010 (as amended), the 1st Defendant is not under a legal obligation to submit the name of the Plaintiff who emerged winner of the primary election to the 3rd Defendant as the 1st Defendant?s governorship candidate in Imo State for the 2019 general elections.
3.Whether the 2nd Defendant who did not participate in the primary election for
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the selection of the 1st Defendant?s governorship candidate in Imo State for the 2019 general election has his name submitted to the 3rd Defendant as the 1st Defendant?s governorship candidate for the said election under any circumstance or guise or whatsoever.?
Thereafter the 1st Respondent sought the following reliefs:-
?1. A declaration that the 2nd Defendant having not participated in the primary election for the selection of governorship candidate of the 1st Defendant for the 2019 general election cannot have his name submitted to the 3rd Defendant as the 1st Defendant?s governorship candidate for the said election.
2. A declaration that any purported selection, nomination of the 2nd Defendant as the governorship candidate of the 1st Defendant for the 2019 general election is illegal, invalid, null, void and of no effect.
3. An order of this honourable Court setting aside any purported selection or nomination of the 2nd Defendant by the 1st Defendant as its governorship candidate for the 2019 General Election.
4. An order of this honourable Court mandating the 1st Defendant to submit the name of the
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Plaintiff as its governorship candidate for the 2019 General Election.
5. An order of this honourable Court restraining the 3rd Defendant from accepting the name of the 2nd Defendant as the 1st Defendant?s governorship candidate for the 2019 General Election for non-compliance with the Electoral Act 2010 (as amended).
6. An order of this honourable Court restraining the 1st Defendant from submitting the 2nd Defendant?s name as the governorship candidate for the 2019 General Election.?
The trial Court at the end of hearing granted all the above mentioned reliefs in its judgment delivered on 5-2-2019.
Dissatisfied with this judgment the appellant on 6-3-19 filed this appeal and founded the appeal on the following grounds:-
?GROUND ONE
ERROR IN LAW: The Lower Court erred in law when it denied the Appellant of a fair hearing.
GROUND TWO
ERROR IN LAW: The Lower Court erred in law when it entertained the Suit which disclosed no cause of action.
GROUND THREE
ERROR IN LAW: The Lower Court erred in law when it resolved the issues formulated in the Originating Summons notwithstanding that no
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address in support of or against the Originating Summons was presented by the parties to the suit.
GROUND FOUR
ERROR IN LAW: The Lower Court erred in law when it held that there was a contradiction between the Affidavit evidence of the Appellant and that of the 2nd Respondent consequent upon which it granted the reliefs sought in the Originating Summons.
GROUND FIVE
ERROR IN LAW: The Lower Court erred in law when it held that the Governorship Primary Election of the Appellant was held between the 5th and 6th day of October, 2018.
GROUND SIX
ERROR IN LAW: The Lower Court erred in law when it stated that the 1st Respondent?s Written Address dated 18th February, 2019 and filed on the same date in partial opposition to the 2nd Respondent?s Notice of Preliminary Objection dated 20th December, 2018 and filed on the same date was belated.
GROUND SEVEN
ERROR IN LAW: The Lower Court erred in law when it awarded excessive costs of N500,000.00 (Five Hundred Thousand Naira) against the Appellant to be paid as a condition for allowing it to file its Counter Affidavit and Written Address in Opposition to the Originating Summons.?
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From these grounds the appellant in its brief of argument distilled the following issues for determination:-
?1. Whether the Appellant was given a fair hearing by the Court below. This is formulated from Grounds One, and Three of the Grounds of Appeal.
2. Whether the Court below had jurisdiction to hear the case. This is formulated from Ground Two of the Grounds of Appeal.
3. Whether the costs of N500,000.00 (Five Hundred Thousand Naira) awarded against the Appellant as a condition for allowing it to file its Counter Affidavit and Written Address in opposition to the Originating Summons is not excessive. This is formulated from Ground Seven of the Grounds of Appeal?.
The 1st Respondent distilled four issues for determination to wit:-
?2.01. Whether the right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) was observed by the trial Court.
2.02. Whether the commencement of action by the 1st Respondent vide originating summons at the trial Court was competent and proper, to clothe the trial Court with the requisite jurisdiction to entertain the matter.
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2.03. Whether the interlocutory award of cost against the Appellant by the learned trial judge for failure to comply with an order of Court was made judiciously vis a vis the unfettered discretion of the Court in the circumstances.
2.04. Whether this appeal has not been overtaken by events, and therefore becomes a mere academic or hypothetical exercise.?
The 2nd Respondent distilled 3 issues for determination to wit:-
?i. Whether the Appellant was given fair hearing by the Court below?
ii. Whether the Court below had jurisdiction to hear the case?
iii. Whether the costs of N500,000.00 (Five hundred thousand Naira) awarded against the Appellant as a condition for allowing it to file its counter affidavit and written address in opposition to the Originating Summons is not excessive
The issues raised by the parties can really be reduced to two i.e. (i) Whether the appellant was given a fair hearing by the trial Court; and (2) Whether the costs of N500,000.00 was not excessive.
On the issue of costs, a critical look at the appellant?s notice of appeal shows that the notice limited itself to the
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judgment delivered on 5th day of March, 2019. The cost of N500,000.00 was not awarded in relation to an interlocutory order made days earlier. It is not covered by the notice. Worse still, because the award was made in an interlocutory proceeding, the award can only be challenged with leave of Court pursuant to the provisions of S.14(1) of the Court of Appeal Act 2004. Leave was never sought in the instant case. Appellant?s ground 7 is hereby struck out as it is incompetent.
I must state at this point that I had before the 1st Respondent filed its brief, informed the parties that they will be required to address the Court on whether the appeal was not an academic exercise especially bearing in mind the 4th Amendment to the 1999 Constitution as it relates to S. 285 of the said Constitution. The parties addressed the Court vigorously on this issue and I must bow to the principle of stare decisis on the provisions of S. 87(9) of the Electoral Act 2010 (as amended) on the right of an aspirant of a political party to apply to Court for redress. SeeBoko Vs. Nungwa (2019) 1 NWLR (per 1654) 395. I therefore hold that the appeal is not academic.
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I also in Court asked whether the finding by the trial Court that the 1st Respondent?s address which he found was unsigned at the time of filing was surreptitiously signed thereafter was not a fraudulent act which tainted the entire proceeding. 1st Respondent?s Counsel?s opinion was that the said fraudulently signed document was of little relevance to the proceeding and therefore did not affect it especially as the trial Court made no use of the process. I disagree. A party is supposed to exhibit the highest level of ethical conduct and fraudulently signing a process tainted the whole proceeding. The trial judge on that discovery ought to have vacated the entire proceedings.
It is clear from the record of appeal that proceedings at the lower Court did not meet the standard of adjudication expected in our adversarial system of adjudication. The rights of the parties to address the Court either by counsel or in person was not availed them by the trial Court which adhered unnecessarily to technicalities. This right to address has been emphasised by the superior Courts in Okoebor Vs. Police Council (2003) LPELR 2458 (SC),
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Niger Construction Ltd. Vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787. Obodo Vs. Olomu(1987) 3 NWLR (Pt. 59) 111, Mains Ventures Ltd. Vs. Petroplast Industries Ltd. (2000) LPELR 6868 (CA) Zenith Plastics Industries Ltd. Vs. Samotech Ltd. (2018) LPELR 44056 SC. The judgment of the trial Court in FHC/OW/CS/137/2018 is hereby vacated. The Chief Judge of the Federal High Court is hereby ordered to transfer the case to another judge to be heard and determined de novo.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
?IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
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Appearances:
A. I. Nwachukwu
For Appellant(s)
S. A. Anyalewechi for the 1st Respondent.
C. R. Onwuegbuchulam for Ikechukwu Uwanna for the 2nd RespondentFor Respondent(s)
Appearances
A. I. NwachukwuFor Appellant
AND
S. A. Anyalewechi for the 1st Respondent.
C. R. Onwuegbuchulam for Ikechukwu Uwanna for the 2nd RespondentFor Respondent
