Chief Joseph Adolo Okotie-eboh V. Chief James Ebiowo Manager & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The appellant and the 1st respondent herein together with one other who is not a party in this proceeding are members of the Peoples Democratic Party (P.D.P. for short) in the Delta State South Senatorial District. As prospective candidates for the 2003 general election to the Senate, all the three contested the P.D.P. primary election for the Delta State South Senatorial District. At the end of the primary election, the 1st respondent scored the highest number of votes followed by the appellant who emerged second. Aggrieved thereby, the appellant addressed a petition to the P.D.P. (2nd respondent) alleging, inter alia that the 1st respondent was not qualified to have contested the primary election on the ground that on a previous occasion he was indicted by a Local Government Council Election Tribunal for electoral malpractice. The petition was considered by the Delta State Electoral Panel of the party which upheld the petition, disqualified the 1st respondent and recommended that the appellant should be nominated as the party’s candidate for the general election. Against this recommendation, the P.D.P. (2nd respondent) nevertheless submitted the name of the 1st respondent to the Independent National Electoral Commission (INEC) the 3rd respondent, herein, as its candidate for the Delta State South Senatorial District who after the general elections emerged victorious.

Meanwhile, the appellant as plaintiff before the general election was conducted, had in the High Court of the Federal Capital Territory sitting in Abuja in suit No. FCT/11/CV/208/2003 filed on 30th February, 2003 commenced an action by an originating summons against the respondents as defendants seeking against them the following five reliefs, to wit:-

“1. A declaration that by virtue of the provisions of section 66(l)(h) of the 1999 Constitution and Guideline 23(b) of the Electoral Guidelines for Primary Elections, 2003 of the Peoples Democratic Party, the 1st defendant is not qualified to contest the primary election of the Peoples Democratic Party in the Delta State South Senatorial District and the 2003 general election to the

Senate because he is a person who has been indicted for fraud by the then Bendel State Local Government Council Election Tribunal set up under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 in a judgment delivered on 20th March, 1991 in suit No. W/ET/1/90 between Mr. F. Wenetu Edonkunoh v. J. E Manager & 5 others.

2. A declaration that the purported election of the 1st defendant James Ebiowo Manager as the Peoples Democratic Party’s candidate for the Delta State South Senatorial District in the general election to the Senate of the Federal Republic of Nigeria is unconstitutional, null and void.
3. A declaration that the plaintiff being the candidate with, the second highest number of votes at the Peoples Democratic Party primary election in the Delta South Senatorial District is the person entitled to have his name submitted by the 2nd defendant to the 3rd defendant as the party’s candidate for the general election to the Senate of the Federal Republic of Nigeria.
4. An injunction restraining the 3rd defendant whether by itself, its servants, agents and or representatives from treating the 1st defendant as the defendant’s candidate for Delta State South Senatorial District in the 2003 general election to the Senate of the Federal Republic of Nigeria.
5. An order directing the 2nd defendant to substitute the plaintiff’s name for the 1st defendant as the 2nd defendant’s candidate for Delta State South Senatorial District in the 2003 general election to the Senate of the Federal Republic of Nigeria.”

The originating summons was supported by an affidavit of nineteen paragraphs sworn to by the appellant and had annexed to it five exhibits including exh. “JA 0-4” being the judgment of the Bendel State Local Government Council Election Tribunal in suit No. W/ ET/1/90 between F. Wenetu Edonkumoh v. J.F. Manager (1st respondent herein) delivered on 20th March, 1991 wherein that tribunal nullified the election of the 1st respondent as the Chairman of Bomadi Local Government Council on the ground of double registration and voting twice at the said election. There was also a further affidavit by the same deponent to which was annexed as exh. A., the constitution of the P.D.P.

In his reaction to the originating summons, the learned senior counsel for the 1st respondent by a notice of preliminary objection filed in court on 26th of February, 2003 raised objection to the jurisdiction of the court on the following grounds:

“1. The plaintiff’s suit does not disclose any cause of action or cognisance reasonable cause of action.

2. The suit as presently constituted is incompetent.
3. The subject matter borders on internal affairs of a political party which this court cannot entertain.”

The preliminary objection was taken on 27th February, 2003 and in the course of arguments of learned counsel, a wide range of issues was canvassed which misled the learned trial Judge in having unknowingly to make remarks which appears to have pre-judged the merit of the main suit. This is contrary to the principle that in a ruling on an interlocutory application, the court should avoid making any observation that might appear to prejudge the main issue in contention between the parties: see Sylvanus Mortune v. Alhaji Mohammed Gambo (1979) 3-4 SC 54 at 56; (1983) 4 N.C.L.R 237 at 242. In an interlocutory matter, parties must not only shy away from the merit of the matter but must completely refrain therefrom; Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt. 26) 39. In his ruling delivered on 5th March, 2003, the learned trial Judge held, inter alia, that section 66(1)(h) of the 1999 Constitution relied upon by the appellant in canvassing the disqualification of the 1st respondent from the primary election was unavailing as there was no evidence of Government’s acceptance of the report of the tribunal that indicted the 1st respondent and furthermore that the election tribunal that tried him was not the type contemplated by section 66(1)(h) of the 1999 Constitution. The court further decided, relying on the authority of Onuoha v. Okafor (1983) 2 S.C.N.L.R. 244 at 267 that the appellant’s action which raises the question of the candidate a political party will sponsor in an election was a political question over which it has no jurisdiction to decide. Accordingly the appellant’s claims were struck out and the suit dismissed.

Expectedly, the appellant by a notice of appeal filed on 6th March, 2002 and subsequently amended, lodged an appeal to the Court of Appeal, Abuja Division sub-joining to the amended notice five grounds of appeal. In a motion for departure from the rules of court to compile the record of appeal and for accelerated hearing of the appeal, the appellant indicated that he intended to submit only one issue for determination which he spelt out in the motion paper. As the 2nd and 3rd respondents did not participate in the proceedings, both in the two lower courts and in this court, the 1st respondent will be referred to simply as the respondent.

Briefs were filed and exchanged between the appellant and the respondent in the court below but before the appeal could be heard, learned senior counsel for the respondent brought a second notice of preliminary objection filed on 23rd April, 2003 contending that since the general elections into the National Assembly had been conducted on 12th April, 2003, and the respondent returned as duly elected, as the candidate of Delta State Senatorial District, the court could no longer entertain the subject matter of the appeal by virtue of the combined effect of sections 131(1) and 134 of the Electoral Act, 2000 (as amended) and section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999. On 30th of April, 2003, both the appeal and the second preliminary objection were argued simultaneously, and in the leading judgment delivered on 2nd July, 2003 by Oduyemi, J.C.A. concurred in by Oguntade, J,C.A. as he then was, and Bulkachuwa, J.C.A. the Court of Appeal dismissed the appeal and glossed over the second preliminary objection as it appears it did not express any opinion thereon. Both parties being dissatisfied with the judgment, the appellant further appealed against the dismissal of his appeal while the respondent cross-appealed on the failure of the Court of Appeal to pronounce on the second preliminary objection.

Before us, therefore, there are the appellant’s/cross-respondent’s appeal and the respondent’s/cross-appellants cross-appeal. Both parties filed and exchanged written briefs of arguments which they adopted with oral address in expatiation of the written briefs. For the appellant, there is the appellant’s brief filed on 7th November, 2003 and a reply brief filed on 28th July, 2004. The respondent relied on his brief filed on 30th April, 2004 and a cross-respondent’s brief filed the same date. It is proposed to consider the appellant’s appeal first and later the cross-appeal.

With respect to the appellant’s appeal predicated on two grounds of appeal from which two issues for determination were distilled, the respondent has raised a preliminary objection on the competency of ground 2 thereof and issue 2 formulated therefrom. The reason for the objection according to the learned senior counsel for the respondent is that the said ground 2 which is labelled “misdirection of law” implies on a careful analysis of that ground and its particulars a combination of both misdirection of law and errors in law lumped together as one ground of appeal. This, learned counsel submits is bad in law stressing that a ground of appeal alleging misdirection of law and error in law cannot co-exist as they are mutually exclusive, disjunctive and ought to be struck out, supporting his proposition with a litany of cases, to wit, Amadi v. Okoli (1977)7 SC 57; (1977) N.S.C.C. (Vol. II) 117 at 119-120, Okorie v. Udom (1960) SCNJ 326; (1960) N.S.C C (Vol. I) 108, Nnabuife v. Nwigwe (2001) 9 NWLR (Pt. 719) 710 at 722, Obi v. Owolabi (1990) 5 NWLR (Pt.153) 702 at 716-717 and Abu v. Ogli (1995) 8 NWLR (Pt. 413) 353 at 366-367 among others.

Admittedly a ground of appeal alleging a misdirection is distinct from the one described as error-in-Iaw. According to Black’s Law Dictionary, 6th Edition, p. 999, a misdirection is an error made by a Judge in instructing the jury upon the trial of a cause.