Hon. Prof. Chudi Uwazurike & Anor V. Chief Austin Nwachukwu & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN J.S.C.

This is an appeal against the judgment of the Court of Appeal, Owerri Division in Appeal No.CA/OW/164/2011, delivered on the 28th day of May, 2012 in which the court dismissed the appeal of the appellants against the ruling of the Federal High Court in Suit No.FHC/OW/CS/75/2011 delivered on the 1st day of April, 2011 in which the court overruled the preliminary objection of the appellant against the jurisdiction of that court to hear and determine the matter.

On the 14th day of March, 2011, the 1st respondent caused a writ of summons to be issued against the appellants and 2nd respondent in which he claimed the following reliefs:-

“(a)An order of the court restraining the 2nd Defendant from submitting to the 1st Defendant, the name of the 3rd Defendant or any other name except the name of the Plaintiff as the PDP candidate at the forth coming election into the Federal House of Representatives for Ehime Mbano/Ihittee Uboma/Obowo aka Okigwe South Federal Constituency.

(b)An order of the Hon. (sic) restraining the 1st Defendant from recognising or accepting any other name from the 2nd Defendant as her candidate for the forth coming election into the Federal House of Assembly (sic) as representing Ehime Mbano/Ihitte Uboma/Obowo aka Okigwe South Federal constituency of Imo State accept (sic) the name of the plaintiff.

(c) A perpetual order restraining the Defendants, their agents, privies, assigns or other person acting for, through or by them however constituted from doing any act inimical to the position of the plaintiff as PDP candidate for Ehime Mbano/Obowa aka Okigwe South Federal Constituency House of Assembly (sic)”

It is the case of the 1st respondent who was the plaintiff in the trial court that he and the 1st appellant are members of the 2nd appellant and contested the party’s primary election to select the candidate for Ehime Mbano/Ihitte Uboma/Obowo, aka Okigwe, South Federal Constituency of Imo State election scheduled for 2nd April, 2011 which took place on 6th January, 2011, that he scored the highest number of votes cast at the said primary election but rather than forward his name as the duly elected candidate to Independent National Electoral Commission (INEC) (2nd respondent herein) 2nd appellant sent the name of 1st appellant who, according to the 1st respondent, was not qualified to contest the election.

On the other hand, the case of the appellants is that at the venue of the primary election on 6th January, 2011, 1st respondent, Dominic A. Nwachukwu, Emmanuel Okewulonu, Innocent Nwokorie stepped down, after accreditation of delegates and announced to the gathering that they had stepped down for the 1st appellant in the interest of the party and that the only candidate who did not withdraw and thus contested the primary election with the 1st appellant was Obe Francis C. Ibezim; that 1st appellant won the election with a landslide of 510 votes as against 10 votes scored by the opposing candidate; that as a result of the declaration of results, the name of 1st appellant was duly forwarded to the 2nd respondent as the candidate of the 2nd appellant for the election in question, on the 31st day of January 2011; that the appellants were surprised when they received court processes filed on 14th March, 2011 by the 1st respondent claiming the reliefs earlier reproduced in this judgment. The appellants are contesting the authenticity of the primary election documents which 1st respondent contends evidenced his participation and victory in the primary election.

However, on the 21st day of March, 2011, CHIEF C. EKOMARU, SAN for the 1st appellant filed a motion on notice praying the court to strike out the suit for want of jurisdiction on the following grounds:

“1. By the combined effect of section 31 (1), section 33 and section 35 of the Electoral Act, 2010 (as amended), this Honourable Court has no jurisdiction to entertain as a suit brought pursuant to section 87(9) of the Electoral Act, 2010 (As amended) or any matter or complaint relating to or arising from a Party Primary in view of the fact that the name of the 3rd Defendant/Respondent had already been submitted by the Peoples Democratic Party to the 1st Defendant/Respondent as a candidate.

2. The plaintiff having not taken part in the voting at the party primaries, have (sic) no locus standi to being in this suit, in the first stance.
3. This suit, filed on 14th March, 2011, is an abuse of court process in that the subject matter and the parties in (this suit are the same with suit NO. FHC/ABJ/CS/124/2011 Hon. Austin Nwachukwu vs INEC filed on 3rd February, 2011 pending before Hon. Justice Adamu Bello at Federal High Court, Abuja.
4. There is no political party in Nigeria known as the “People Democratic Party of Nigeria,” the 2nd Defendant in this suit.
5. The writ of summons was not properly issued as required by ORDER 3 Rule 4 of the Federal High Court (Civil Procedure) rules (sic), which gives a defendant 30 days to enter appearance and not 8 days as shown on the writ of summons in this case.”

The application was supported by an affidavit of 24 paragraphs on which the 1st appellant relied in moving the court. As stated earlier in this judgment, the trial court, in a considered ruling, overruled the objection resulting in an appeal to the lower court which was dismissed by that court giving rise to the instant further appeal. The issues for the determination of which have been formulated by Learned Senior Counsel for the 1st appellant, Chief Chukwuma Ekomaru, SAN in the 1st appellant’s brief filed on 13/8/12 as follows:-

“1. Whether by the combined effect of the provisions of sections 31 (1), 33 and 35 of the Electoral Act, 2010 (as amended) the lower court has jurisdiction to entertain a suit brought pursuant to section 87(9) of the Electoral Act, 2010 (as amended) or on any matter or complaint arising from a party primary Election in view of the fact that the name of the Appellant had already been submitted by the 2nd Appellant to the 2nd Respondent as a candidate before the suit challenging the party primary was instituted (Grounds 1, 2, 3, 4, of the Appeal).

ISSUE NO. 2

If the answer to issue No.1 is in the negative, whether this suit filed on 14th March, 2011, against the primary election held on 6th January, 2011 is maintainable against the Appellant whose name was submitted by the 2nd Appellant to the 2nd Respondent as a candidate on 31st January, 2011 or any other date whatsoever, in view of the provisions of sections 31 (1), 33 and 35 of the Electoral Act, 2011 (as amended) (Grounds 1, 2, 3, 4 of the appeal).”