J.A. Nwarie V. Dr. B. N. Amauwa & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

KOLAWOLE, J.C.A.

At the Aba High Court in Imo State in suit No. A/172/91 the plaintiff, Dr. Bethel Nkemdirim Amauwa, instituted an action against the respondents, Joseph Adiele Nwarie, the National Electoral Commission and the Attorney-General of Irno State in which the plaintiff sought certain declaratory reliefs namely –

(1) Declaration that the Election Petition Appeal Panel comprising of three judges, sitting at the same time and in the same suit under the name and style of “In the Election Petition Appeal Court of Imo State of Nigeria. In the Election Petition Appeal Court of Umuahia Zone three holden at Aba” and comprising of a Chairman and two members is not “the competent High Court” of Imo State. The plaintiff claimed other reliefs.

On May 13, 1991 the plaintiff applied exparte for an interim injunction restraining the defendants from interferring with the plaintiff as being the duly elected chairman of Ukwa Local Government Council of Imo State until the Motion on Notice then pending in the court was determined. The order sought was granted on 14 May, 1991. The Motion on Notice was adjourned to 21 May, 1991 for hearing. On that day the learned judge after hearing arguments restrained the defendants by themselves, their-servants, agents or privies from interfering with the plaintiff as being the duly elected chairman for Ukwa Local Government Council of Imo State until the substantive suit is determined. The interim order of May 14, 1991 was discharged.

The first defendant, J.A. Nwarie, was dissatisfied with the ruling of Chianakwalam, J. and he has appealed to this court upon three grounds of appeal.

The appellant brought an application to this court for an order of departure from the rules of court that the appeal be heard on the bundle of papers filed with the application and abridging the time for filing briefs of arguments and for accelerated hearing of the appeal. We granted the order for departure from the rules and ordered that the bundle of papers filed herein be used as the record of appeal. We also abridged the time for filing briefs of arguments and we granted an accelerated hearing of the appeal.

In view of the nature of the appeal, we heard the appeal immediately after we had granted appellant accelerated hearing. The parties filed their respective briefs. Having regard to the importance and sensitivity of the appeal, I shall set down the three grounds of appeal namely:

1. Error in Law

The learned trial judge erred in law when he held as follows:

“In an application of this nature, it is paramount that the applicant must show he has a right the violation of which he seeks to protect. In this regard, it is not disputed that he (i.e. the plaintiff) won as Chairman of Ukwa Local Government Council in an election conducted in December, 1990. It is not disputed that the Election Tribunal at Umuahia as the Court of first instance, held that the election was favourable to plaintiff. It is not disputed that the first defendant who is the first respondent appealed against the judgment of the Tribunal. It is not in dispute that the decision of the Court of first instance was turned down by the Appeal Court. By the result of the Appeal Court decision, the plaintiff was denied a right which he acquired through an election. It is that right he seeks by these proceedings to protect.”

Particulars of Error:

1. The remedy for interim injunction is only available to protect the violation of a legal right.
2. Having come to the conclusion that by the result of the Appeal Court decision the plaintiff/respondent lost the right which he acquired through the election he had no more right which the court could protect by an order of interlocutory injunction.
3. Ground Two

The Court erred in law when- it held as follows:

“On a glance of the proceedings of the Appeal Court the forum of the court and its Composition are set out in Plaintiff’s exhibit No. C as follows:

“In the Election Petition Appeal Court of Imo State of Nigeria. In the Election Petition Appeal Court Umuahia Zone III.

Holden at Aba,