Egevafo Ekpeto V Ikono Wanogho & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, JSC

The appeal and cross-appeals in this matter arose from the judgment and orders of the Court below wherein that Court (Coram, Abdullahi, PCA, Oguntade, Muhammad, Bulkachuwa, Oduyemi JJCA upheld the appeal against the ruling of Yussuf J, delivered on the 24th of March 2003 and set it aside. The Court went further to order that the case be heard de novo by another judge of the High Court of the Federal Capital Territory (FCT).

For a proper appraisal of the issues raised in the said appeals, it is in my view necessary that the facts leading thereto should be reviewed briefly. This matter apparently commenced when the appellants by an originating summons dated 3rd February 2003, was taken out at the Gwagwalada Division of the High Court of the FCT against 1st – 4th respondents for the following reliefs: –

“(1) A declaration that by virtue of the combined effect of sections 112, 114, 115 and 124 of the Evidence Act, Cap 112 laws of the Federation 1990 the Record of proceeding of the Bwari Upper Area Court of 18/8/1995 in Case No. CR81-95 is presumed genuine and sufficient in law for the 1st, 2nd and 3rd respondents to rely on same to act against the ex-convict.

A declaration that the ex-convict, Chief Onanefe Ibori, by virtue of his conviction and sentence in Case No. CR81-95 is not qualified to carry the 1st, 2nd and 3rd respondents’ flag as its Gubernatorial candidate in the 2003 elections within the meaning of section 182(1) of the 1999 Constitution.

An order compelling the 1st, 2nd and 3rd respondents to disqualify and withdraw its flag and certificate by affirmation given in the case, to the ex-convict, Chief James Onanefe Ibori, to contest the 2003 Gubernatorial elections in Delta State on the platform of the Peoples Democratic Party.

An injunction restraining the 1st, 2nd and 3rd Respondents, their agents, servants and privies from presenting the name of the ex-convict in this case, Chief James Onanefe Ibori to the Independent Electoral Commission as the candidate of the Peoples Democratic Party (POP) for the 2003 Gubernatorial Elections

An injunction restraining the 4th defendant from recognising and accepting the candidature of Chief James Onanefe Ibori, the candidate of the 1st, 2nd and 3rd respondents for the 2003 Gubernatorial Elections in Delta State.”

The 1st, 2nd and 3rd respondents by their counsel filed a memorandum of appearance and also filed a counter affidavit in response to the summons filed on them. The Court then set the motion for hearing on the 10th February 2003. On that date, the respondents were not in Court and they did not also defend the summons against them. The learned trial judge then adjourned the matter for ruling later on the same date. But that ruling could not be delivered as Mr. Alex Izinyon SAN, brought an application on behalf of the 5th respondent, wherein it was prayed that the 5th respondent be joined as defendant in the suit pending before the trial Court. By the said application, the 5th defendant also raised a preliminary objection to the originating summons upon the grounds (a) that the applicants had no locus standi to institute the action and (b) that the Court lacked jurisdiction to hear the suit.

The trial Court in a considered ruling granted the prayer for the joinder of the 5th respondent as one of the defendants to the action before it. The trial Court thereafter proceeded with the hearing of the originating summons with which the action was commenced and the preliminary objection raised against it as aforesaid. It was however resolved that the arguments of counsel in respect of the preliminary objection be taken first. After due consideration of the submissions made thereon by learned counsel for the parties, the learned trial judge struck out the preliminary objection as it lacked any merit.

After this ruling, learned Senior Counsel, Mr. Alex Izinyon, apparently appeared for the 5th respondent and led other counsel who had been appearing for him. Following his appearance, he then made the submission to the Court, which, inter alia, read thus: –

“We shall be addressing the Court on the affidavit before the Court. The issue is narrow. By virtue of Order 35(1) of the Rules of this Court we can identity the issues and address the court upon them. The issue in controversy is that the 5th defendant is an ex-convict. The law is that no oral evidence can be given of a judgment or proceeding of Court if reduced to writing except if…”

In his response to that submission, Mr. Odin, learned counsel for the plaintiffs said inter alia that “As a legal practitioner of several years standing, I cannot be a party to impersonation by anybody. However I suggest that oral evidence be heard to show if the governor was convicted.” The Court then adjourned further hearing to the 20th of March 2003. On that date the trial Court ordered as follows: –

“I therefore deem it necessary to direct parties to prepare the issues they think germane for the determination of this case. This is pursuant to Order 35 Rule 2”