Ibuchukwu Ezike & Ors V. Independent Electoral Commission (Inec) & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellants were the plaintiffs at the Federal High Court, holden at Enugu, in re Suit No. FHC/EN/CS/34/2003. They had claimed against the respondents:-

i. A declaration that the pre – 1996 delineation of Ward in the plaintiffs, communities of Igbo Etiti Local Government Area of Enugu State is still valid.

ii. An order restraining the defendants, their servants, agents or privies from using the 1998 Electoral Wards for any Election in the said Communities.

iii. An order declaring the 1998 Electoral Wards in the Communities as invalid.

The respondents each filed no statement of defence but Notices of Preliminary Objection, to the hearing of the appellants’ action. The appellants filed counter affidavits, in opposition to each of the respondents’ preliminary objections. The Court below, in a considered ruling on 31st March, 2003 dismissed the respondents’ preliminary objections. Thereafter, the motion on notice for interlocutory injunction against the respondents was heard and determined on 19th June, 2003, in favour of the appellants, per C. E. Archiborg, J.

The respondents resisted the decision of

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the Court below of 19th June, 2003. They did not obey it. There were contempt proceedings instituted against the respondents. However, with the compliance of the respondents with the decision of 19th June, 2003; the contempt proceedings were abandoned and consequently, on 10th December, 2009; the case was struck out by the Court below, per Kafarati, J. Thereafter, the respondents, construed and understood the striking out of the “case” by Kafarati, J., on 10th December, 2009 to mean that the appellants’ suit upon which the 19th June, 2003 decision of Archibong J., was predicated, having been struck out, it meant that the aforementioned decision of Archibong, J., of 19th June, 2003 had abated and become spent. Hence, the respondents reverted to the use of the 1998 delimination of Electoral Wards in Igbo Etiti Community for the conduct of elections in that community.

?The appellants, piqued by the new stanch of the 2nd respondent, filed a motion on notice dated 26th September, 2011. They prayed for leave to issue and serve Forms 48 and 49 on one Dr. Eneh Boniface O. (KSC) the Executive Chairman of the 2nd Respondent. There was an affidavit of 22 paragraphs with

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some documentary exhibits annexed thereto, in support of the application. In opposing the application, the respondents filed a NOTICE OF OBJECTION on 15th May, 2012, to the effect that the appellants’ motion on notice of 26th September, 2011 be struck out for it being incompetent. There is a written address filed in support of the application. The appellants, in reaction thereto, filed an affidavit of 12 paragraphs and a written argument on 2nd July, 2012.

The respondents’ notice of objection aforementioned was heard on 1st November, 2013 and in his ruling thereon, the learned trial judge, M. L, Shuaibu, J., (as he then was) on 21st February, 2014; decided in favour of the respondents, to the effect that the appellants’ motion on notice of 26th September, 2011 was incompetent and consequently, it was struck out. The appellants, not unnaturally were dismayed with the decision of 21st February, 2014 and appealed against it, to this Court, anchored on six (06) grounds of appeal.

?The appellants, in order to prosecute their appeal, filed the appellants’ brief of argument, settled by D. A. Aneke, Esq., on 4th July, 2014. He identified five issues for the