Nicholas Chukwujekwu Ukachukwu V. Peoples Democratic Party & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

On the 10th October, 2013 appellant filed an application in the court praying for an order “staying further proceedings in the Court of Appeal, Port Harcourt Division, in the consolidated appeals nos. CA/PH/695/2013 Tony Nwoye v. Ukachukwu & 3 Ors and CA/PH/696/2013, PDP v. Nicholas Ukachukwu & 2 Ors pending the hearing and determination of the interlocutory appeal by this Honourable Court filed against the Rulings of the court below which ruling was delivered on this (sic) on 8th day of October, 2013 on a motion to disqualifying the Justices of the court from further sitting or adjudicating over the consolidated appeals; application to disqualify counsel to the PDP and ruling on application for extension of time within which to file the 1st respondent’s brief of argument”

The grounds on which the application is brought are stated as follows:-

“1. The appellant/applicant was denied fair hearing on account of apparent bias of the Justices of the Court of Appeal.

2. Further proceedings by the court will destroy the subject matter of the appeal.
3. A situation of complete helplessness may be foisted on the Supreme Court if further proceedings are not stayed in this suit.
4. Further proceedings in the Court of Appeal may render the outcome of the suit at the Supreme Court nugatory.
5. There exist special circumstances for the grant of this application.
6. The appellants’ notice and grounds of appeal contains arguable grounds of appeal.”

The application is supported by an affidavit of 14 paragraphs as well as a further affidavit of 24 paragraphs filed on 17th October, 2013.

The facts of the case include the following:-

In the course of the hearing/proceedings in the consolidated appeal nos. CA/PH/695/2013 and CA/PH/696/2013 at the lower court, applicant filed applications praying that court for an order disqualifying the justices constituting the panel hearing the said appeals on grounds of bias and relationship with the respondents in the appeals and that learned counsel for the present 1st and 2nd respondents, be disqualified from continuing to prosecute the appeal on the ground that the authority conferred on the counsel by PDP had been withdrawn. There was also a motion praying for enlargement of time within which the 1st respondent, now appellant in this court, can file his brief of argument.

The lower court refused the applications for disqualification of the justices and of counsel for the present 1st and 2nd respondents and the motion for enlargement of time to file 1st respondent brief of argument was struck out.

It is also the case of applicant that his right to fair hearing was breached by the lower court’s refusal/failure to hear applicant before striking out his application despite his application for adjournment.

The genesis of the case culminating in the application under consideration is that on the 24th day of August, 2013, the 1st respondent, Peoples Democratic Party, held its primary elections to elect its gubernatorial candidate for the Anambra State Governorship election scheduled for the 16th day of November, 2013, which primary election was won by the 3rd respondent, Dr. Tony Nwoye; applicant participated in the said election but was defeated resulting in applicant filing an action at the Federal High Court, Port Harcourt challenging the victory of the 3rd respondent.

The Federal High Court delivered a judgment in which it ordered INEC, 4th respondent herein, to include applicant in its list of candidates for the said election.

The decision of the trial court resulted in the 1st-3rd respondents herein filing appeals in the Court of Appeal, Port Harcourt Division which appeals were subsequently consolidated and heard on 8th October, 2013 and adjourned for judgment on the date to be communicated to the parties.

It should be noted that the hearing of the appeals by the lower court was preceded by the proceedings of that court in relation to the applications brought by the present applicant praying for the earlier mentioned reliefs of disqualification of the justices and counsel and enlargement of time to file 1st respondent brief of argument. There was also an application by applicant for an order that 1st respondent adduce further evidence on appeal, which was also struck out by the Court.

It is the ruling on the applications that gave rise to the interlocutory appeal on which the instant application for stay of further proceedings is predicated.