HON.CHIEF OKEY EZE v. DR. CASMIR ANYANWU & ORS
(2019)LCN/13894(CA)
In The Court of Appeal of Nigeria
On Saturday, the 4th day of May, 2019
CA/OW/98/2019
RATIO
APPEAL: WHETHER COURTS EMBARK ON MERE ACADEMIC EXERCISES
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. PER RAPHAEL CHIKWE AGBO, J.C.A.
FAIR TRIAL: EFFECT OF BREACH OF RIGHT TO REPRESENTATION IN PERSON OR BY A COUNSEL
All the issues raised by the parties in their briefs dovetail into the single issue raised by the 2nd Respondent and that is whether the appellant was given a fair hearing by the trial Court. 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 emphasized by the superior Courts in Okoebor Vs. Police Council (2002) LPELR 2458 (Sc), Niger Construction Ltd. Vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787. Obodo Vs. Olamu (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 RAPHAEL CHIKWE AGBO, J.C.A.
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
HON. CHIEF OKEY EZE Appellant(s)
AND
1. DR. CASMIR ANYANWU
2. SOCIAL DEMOCRATIC PARTY (SDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
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 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 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
The Judgment dated the 5th of March, 2019 by the Honourable Court amount to a denial of fundamental right to fair hearing of the Appellant and thus against the principle of natural justice and has resulted in substantial miscarriage of justice.
GROUND TWO
The Learned Trial Judge erred in law when he raised the issue that the 2nd Defendant did not sign its Notice of Preliminary Objection dated the 20th of December, 2018 and proceed to rule on same without calling the parties/their counsel to address him on it.?
From these grounds the appellant in his brief of argument distilled the following issues-
i. Whether the Judgment of the lower Court is not liable to be set aside on the ground that the Learned trial judge denied the Appellant his fundamental right of fair hearing and gave his judgment against the weight of evidence before the Court when he failed to consider the Appellants further and better affidavit dated 16/1/2019. This issue is derived from grounds 1 of the notice of Appeal.
ii. Whether the judgment of the lower Court is not liable to be set aside on the ground that the learned trial judge suo motu raised the issue that the Appellants written address attached to his notice of preliminary objection dated 20/11/2018 was not signed, but failed to call parties to address him on it, thereby denying the Appellants their fundamental right to fair hearing. This issue is distilled from grounds 2 of the Notice of Appeal.
The 1st Respondent distilled three 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.
2.03. Whether this appeal has not been overtaken by events, and therefore becomes a mere academic or hypothetical exercise.?
The 2nd Respondent raised only one issue for determination and that is whether the appellant was given a fair hearing by the trial Court.
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.
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.
All the issues raised by the parties in their briefs dovetail into the single issue raised by the 2nd Respondent and that is whether the appellant was given a fair hearing by the trial Court. 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 emphasized by the superior Courts in Okoebor Vs. Police Council (2002) LPELR 2458 (Sc), Niger Construction Ltd. Vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787. Obodo Vs. Olamu (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
Appearances:
C. R. Onwuegbuchulam (INN) for R. A. Lawal-Rabana
For Appellant(s)
S. A. Anyalewechi for the 1st Respondent.
A. I. Nwachukwu for 2nd RespondentFor Respondent(s)
Appearances
C. R. Onwuegbuchulam (INN) for R. A. Lawal-RabanaFor Appellant
AND
S. A. Anyalewechi for the 1st Respondent.
A. I. Nwachukwu for 2nd RespondentFor Respondent
