Senator Christiana N. D. Anyanwu V. Hon. Independence Chiedoziem Ogunewe & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Owerri Division delivered on 9th day of November, 2012 dismissing the appellant’s appeal against the judgment of the Federal High Court Owerri (the trial court) dated 1st June 2012.

By an originating summons filed on 11/2/2011 before the trial court, the 1st respondent herein, HON. INDEPENDENCE OGUNEWE sought the determination of a number of questions and consequential reliefs in respect thereof against (i) The All Progressives Grand Alliance (APGA), the 2nd respondent herein, (ii) INEC, the 3rd respondent herein and (iii) SENATOR CHRISTIANA N. D. ANYANWU, the present appellant. The thrust of the claim was that the plaintiff, HON. INDEPENDENCE OGUNEWE, is a member of APGA and contested the primary election for the Imo East Senatorial Zone to represent the Zone in the 2011 general elections. That the primary election took place on 14/1/2011 with three names indicated on the ballot but only two candidates, the plaintiff and one Chief Nick Oparandu were present and physically contested the election and that he (plaintiff) won the election. It was his contention that SENATOR CHRISTIANA ANYANWU, whose name was also on the ballot, was not a member of APGA on 14/1/2011 when the primary elections were held, as she was, at the time an active member of the Peoples Democratic Party (PDP) and in fact participated in the presidential primary election of that party held at the Eagle Square, Abuja from 13th – 14th January 2011.

In their counter affidavits, the 2nd respondent (APGA) and the appellant herein averred that the appellant’s name was included on the ballot on 14/1/2011 because she had joined the party after duly resigning her membership of the PDP. Her letter of resignation from the PDP and her membership card for APGA were exhibited to their respective counter affidavits. The 2nd respondent also averred that the appellant was present and duly contested the primary and won the election with the highest number of votes.

In determining the originating summons, the learned trial Judge formulated three issues for determination:

1. “Whether the use of Originating Summons by the Plaintiff is appropriate in the circumstances and on the facts of this case.
2. If the answer to issue one is in the affirmative whether the plaintiff has proved this case on the preponderance of evidence; and
3. If the answer to issue No. 1 is in the negative, what is the appropriate order to make in the peculiar circumstances of this case”.

In a considered judgment delivered on 29/3/2011, the learned trial Judge held that having regard to the contentious nature of the suit, the originating summons procedure was not the appropriate method of instituting the action. However, rather than order the filing of pleadings, the court upon the consideration of Sections 31 (1) and 87 (11) of the Electoral Act 2010 (as amended), struck out the suit on the ground that nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time. The appellant herein (then 3rd defendant), was dissatisfied with the order striking out rather than dismissing the suit and filed a notice of appeal against it at the Lower Court. The plaintiff (1st respondent herein) was also dissatisfied with the decision and filed a cross appeal. The two issues raised in the cross appeal were:

1. Whether an order striking out of the suit instead of an order for filing pleadings was proper in the circumstances of the suit
2. 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 main appeal was dismissed while the issues raised in the cross appeal were resolved in the cross appellant’s favour. The cross appeal was allowed. The appellant was dissatisfied with the dismissal of her appeal and further appealed to this court. Pursuant to leave granted by this court on 15/1/2013 she filed her notice and grounds of appeal on 17/1/2013. The notice of appeal contains six grounds of appeal. The 1st respondent (who was the 2nd respondent in the cross appeal) was also dissatisfied with the decision allowing the cross appeal on the ground that the Lower Court failed to consider and determine one way or the other the issue of the jurisdiction of the trial court to entertain the suit in the first instance, which had been properly raised before it. He therefore filed a notice of appeal on 14/1/2013 containing 3 grounds of appeal. The 1st respondent’s appeal against the judgment in the cross appeal is Appeal No. SC.20/2013: APGA Vs Christiana N. D. Anyanwu & Ors. Judgment in the said appeal was delivered this morning. That appeal and the instant appeal No. SC. 21/2013 arose from the same judgment and on almost identical facts. The parties are the same. As appropriate, in the course of the judgment, reference would be made to and reliance placed upon the judgment of this court in SC. 20/2013.

In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief’ settled by EMEKA O. NWAGWU ESQ. was filed on 22/3/2013. He also filed a reply to the 1st respondent’s brief on 29/4/2013. At the hearing of the appeal on 14/11/2013 he adopted and relied on both briefs urged the court to allow the appeal. In further submission in support of his brief, he observed that, contrary to the finding of the Lower Court the appellant did in fact seek and was duly granted, leave to raise and argue the issue of jurisdiction of the trial court to entertain the matter before it.

The 1st respondents brief was settled by K. C. NWUFO ESQ and filed on 3/4/2013. He adopted and relied on the said brief and urged the court to dismiss the appeal. In further adumbration of his brief he submitted that the issue before the trial court was not only membership of a political party but that there were other issues, which, in his view were accommodated under Section 87 (9) of the Electoral Act 2010 (as amended) (hereinafter referred to as “the Act”).

PRINCE ORJI NWAFOR-ORIZU, who settled the 2nd respondent’s brief filed on 10/4/2013 adopted and relied on it as the 2nd respondent’s argument in the appeal and urged the court to allow the appeal.

The 3d respondent’s brief filed on 5/10/13 was settled by G. C. IGBOKWE ESQ. He adopted and relied on it and urged the court to “take the appropriate decision”, in view of the fact that the Lower Court inadvertently held that no leave was sought to raise the issue of jurisdiction. He argued that the court would have reached a different decision if it had dealt with the issue of jurisdiction first.

The contest in this appeal is essentially between the appellant and the 1st respondent. The 2nd respondent, APGA which is the party that sponsored the appellant, has urged us to allow the appeal. A respondent is normally expected to defend the judgment appealed against. The peculiar circumstances of this appeal is that the 2nd respondent filed a separate appeal challenging the same judgment, As noted earlier, the judgment in that appeal was delivered this morning in SC.20/2013. It will therefore not be necessary to dwell on the submissions made on behalf of the 2nd respondent, which only go to support the appeal. The fate of the appeal is in the hands of the appellant. If it succeeds it enures to the benefit of the 2nd respondent. If the appellant is unable to satisfy the court on the merits of the appeal, the submissions made on behalf of the 2nd respondent will not save it.

The appellant formulated 3 issues for the determination of this appeal. They are:

1. Whether the Appellant was given a fair hearing by the court below.
2. Whether the Court of Appeal was right in holding that the issue of jurisdiction by the Federal High Court to hear the case was not properly raised in the Court of Appeal.
3. Whether the Federal High court has jurisdiction to hear the case as to justify the order of the Court of Appeal remitting the case to the Federal High Court for trial on the merit

The 1st respondent also formulated 3 issues for determination thus: