Chief Pegba Otemolu V. Senator A.m. Makarfi & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Abuja Division in Appeal No.CA/A/551M/2016 between: Senator Ahmed Mohammed Makarfi, Senator Ben Obi v. Prince Biyi Poroye & 10 Ors delivered on 23/11/2016.

The appellant had brought an application before the Court below for leave to appeal as an interested party against the judgment of the Court as it affected him.

The gist of this matter goes thus: The 3rd – 9th respondents, as plaintiffs had commenced an action before the Federal High Court, Abuja by an originating summons on 7/6/2016. They sought a number of declaratory and injunctive reliefs against the 12th & 13th respondents. On the 29th June, 2016 the trial Court delivered its judgment in favour of the 3rd-11th respondents as plaintiffs.

Dissatisfied, the 1st and 2nd respondents appealed to the Court below as interested parties affected by the said judgment of the trial Court. In its judgment, the Court below allowed the appeal in favour of the 1st and 2nd respondents by setting aside the judgment of the trial Court.

The appellant

contended that in its judgment, the Court below nullified the primary conducted by the appellant on nomination of candidate for election without affording the appellant the opportunity of being heard. He contended further that even though he was not a party in the process leading to the nullification of the primary conducted by him, and it was never an issue before the trial Court or the Court below. The Court below had suo motu nullified the said primary conducted by the appellant’s Executive Committee without hearing from him.

In his Notice of Appeal dated 25/01/16, the appellant raised a sole ground of appeal against the said judgment of the Court below delivered on 23/11/2016.

In the brief of argument settled by learned senior counsel for the appellant, Dr. Alex Izinyon, SAN, the following sole issue was distilled from the said sole ground of appeal:

“Whether the Court below was right to have nullified the primary conducted by the appellant on nomination of candidate for election without affording the appellant the opportunity of being heard contrary to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as

amended).”

In arguing the above sole issue for the determination of this appeal, learned senior counsel for the appellant contended that the appellant was duly elected as the South West Zonal Executive Committee among other officers of the Peoples Democratic Party (PDP) the 13 respondent in the south West States by virtue of Exhibit AS9A.

Learned senior counsel further contended that on 19th May, 2016, the National Chairman and Secretary of the 13th respondent had written a letter to the 12th respondent (INEC) that the appellant as well as other elected officers on the 11th day of October, 2014 are the duly elected South West Zonal Executive Committee of the 13th respondent (PDP) which has the confirmation of the National Executive Committee to deal directly with 12th respondent to the exclusion of others and to carry out function as may be delegated to them by the 13th respondent. And that in the basis of the said letter from the National Chairman and National Secretary of the 13th respondent – Exhibit AS9A, the appellant and his Committee conducted primary for nomination of candidate for Gubernatorial election in Ondo State as one of the south West

States.

The appellant went further to state that the Notice of Appeal filed by the 1st and 2nd respondents before the Court below never questioned the primary election conducted by the appellants Executive Committee but rather it was solely on ground of fair hearing.

In the brief of argument of the 1st and 2nd respondents settled by Olabode Olanipekun, Esq., learned counsel also formulated a sole issue from the sole ground of appeal filed by the appellant, although differently couched.

It is interesting to note that the appellant herein referred to the finding of the Court below he found offensive that led him to appeal against the judgment. It reads thus:

“We have stated that the reliefs sought, to be exclusive officers to nominate candidate for election was beyond the plaintiffs.”

This finding is said to be contained on pages 2386 of the record.

I have carefully gone through the judgment of the Court below referred to in Vol.2 of the record of appeal. Indeed, the said judgment is on pages 2377 through to 2394. The said alleged offensive finding of the Court is the first paragraph on page 2393 of the record.

It is note

worthy that in a sister appeal No.SC.130/2017 between Prince Biyi Poroye and 8 others and Senator Ahmed Mohammed Makarfi and 3 ors, the 1st-9th appellants in that appeal who were the plaintiffs before the trial Court are the parties referred to as the 3rd to 11th respondents in this appeal. While the 12th & 13th respondents herein are the 3rd and 4th respondents. The same judgment of the Court below being attacked here was attacked in the said appeal.

It is interesting to note that his point being raised in this appeal was raised by the appellants in the above appeal as their issue No.4 as follows:

“(iv) Whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in the action were beyond the plaintiffs.”

The said point was also raised by the Court as issue No. 4 and resolved.

It must however be noted and categorically stated loud and clear that the Court below, in its judgment being appealed did not nullify any primary election conducted by the appellant herein or by any other person or body of persons, It is therefore a misconception to hold that the Court, below suo motu nullified the

primary election conducted by the appellant’s Executive Committee. What the Court below decided mainly in setting aside the judgment of the trial Court which was given in favour of the present 3rd-11th respondents as plaintiffs was that, the trial was conducted and decided against the appellants without giving them hearing or at least an opportunity to be heard. This was held to be and it was in breach of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which guaranteed fair hearing of the appellants in the determination of their interests. The appeal against the said judgment of the Court below was dismissed and our decision in the said appeal shall therefore be the same in this appeal.

The sum total of what has been said is that this appeal shall abide by the decision of this Court in appeal No.130/2017 between Prince Biyi Poroye & Ors Vs. Senator Ahmed Mohammed Makarfi & Ors. which has been delivered.

In the circumstance, this appeal is found to be misconceived, lacking in merits and liable to dismissal.

Accordingly, the appeal is dismissed.

There shall be costs of N250, 000.00 in favour of each of the 1st and 2nd respondents only against the appellant.

SC.128/2017