Senator Mamman Ali V. Senator Usman Albishir & Ors (2007)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the Federal High Court, Kaduna Division delivered on 19th March 2007 in favour of the 1st and 2nd plaintiffs/respondents granting all the reliefs claimed on their amended originating summons. The appellant herein, who was the 3rd respondent before the trial court was dissatisfied with the decision and filed a notice of appeal dated 20th March 2007 containing four grounds of appeal.

The facts giving rise to this appeal as can be gleaned from the printed record are as follows:

The 1st and 2nd respondents, as plaintiffs at the court below filed an originating summons dated 23rd February 2007 against the 3rd and 4th respondents herein, as defendants. They raised the following questions for determination by the Court:

1. “Whether having regard to the combined effect of the provisions of Sections 36, 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 and Section 34 of the Electoral Act, 2006 (as amended) the 2nd defendant can without giving any reason whatsoever change the candidature-ship of the plaintiffs as earlier submitted as the gubernatorial flag bearer/running mate for Yobe State in the April 2007 general elections.
2. Whether having regard to Section 36, of the Constitution of the Federal Republic of Nigeria 1999 and Section 34 (2) of the Electoral Act 2006 (as amended) whether without giving any reason at all the 1st defendant can accept any change or substitution with any other person whatsoever.”

They also sought the following reliefs from the court upon the determination of the above questions:

1. “A declaration that the plaintiffs having been lawfully nominated and their candidature accepted by the 1st defendant, they are entitled to fair hearing as to any reason given by the 2nd defendant for their replacement or substitution by any other person.
2. A declaration that the 1st defendant cannot change the plaintiffs as its gubernatorial candidate/running mate for the April, 2007 gubernatorial election in Yobe State without giving any cogent reason.
3. A declaration that the 1st defendant cannot accept any replacement or substitution of the plaintiffs by any person whatsoever without the 2nd defendant giving any cogent reason.
4. A declaration that the failure of the 1st and 2nd defendants to give the plaintiffs an opportunity to defend themselves for by (sic) reason given amounts to denial of fair hearing.
5. An order setting aside any substitution whatsoever made by the 2nd defendant to the 1st defendant as the gubernatorial candidate/running mate in Yobe State.
6. An order of injunction restraining the defendant, their agents or servants from tampering with or doing anything , whatsoever to the names or otherwise of the plaintiffs as already verified and cleared as the gubernatorial candidate/running mate for Yobe State in the April, 2007 general elections.”

On 1st March 2007 the appellant herein filed a motion on notice seeking to be joined as the 3rd defendant in the suit. The application was granted on 5th March 2007.

On 6th March 2007 the plaintiffs filed an application seeking leave to amend their originating summons and for an order deeming the amended originating summons annexed to the supporting affidavit as duly filed and served.

The amended originating summons annexed to the supporting affidavit and marked Exhibit 1 can be found at pages 64-66 of the printed record. The questions for determination as set out therein are as follows:

1. “Whether having regard to the provisions of Section 34 (2) of the Electoral Act 2006 the 2nd defendant can without giving “cogent and verifiable” reason as required by Section 34 (2) of the Electoral Act 2006 or without any reason at all substitute the names of the plaintiffs.
2. Whether having regard to the non-compliance with the condition to give “cogent and verifiable reason” as provided by Section 34 (2) of the Electoral Act 2006 by the 2nd defendant can act on any name as replacement of the plaintiffs.
3. Whether having regard to the non-compliance with the condition to give “cogent and verifiable reason” as provided by Section 34(2) of the Electoral Act 2006 by the 2nd defendant, the plaintiffs are not the duly nominated candidates for the 2007 Gubernatorial Elections in Yobe State under the platform of the 2nd defendant.”

The plaintiffs also sought the following reliefs:

1. A declaration that the 2nd Defendant cannot change the Plaintiffs as its gubernatorial candidate/running mate for the April, 2007 gubernatorial election in Yobe State without giving any “cogent and verifiable reasons or any reason at all.
2. A declaration that 1st Defendant cannot accept any replacement or substitution of the Plaintiffs by any reason whatsoever without the 2nd Defendant giving any cogent and verifiable reasons or any reason at all.
3. An order setting aside the purported substitution made by the 2nd Defendant to the 1st Defendant as the gubernatorial candidate/running mate in Yobe State for non-compliance with the condition set out by S. -34(2) of the Electoral Act 2006.
4. An order of perpetual injunction restraining the Defendant, their agents or servants from tampering with or doing anything whatsoever to the names or otherwise of the Plaintiffs as already verified and cleared as the Gubernatorial Candidate/running mate for Yobe State in the April, 2007 general elections under the platform of the 2nd Defendant.
5. An order or mandatory injunction restraining the 1st defendant from acting on or carrying into effect or doing anything whatsoever or taking any step; on the letter dated 13th February, 2007 relating to the substitution or otherwise of the Plaintiffs/Applications; as the Yobe State Gubernatorial Candidates under the platform of the 2nd defendants.
6. An order of interlocutory injunction restraining the first defendant from acting or further acting on or in any way publishing any names other than those of the Plaintiffs herein as the candidate of the second defendant for the 2007 Governorship Elections in Yobe State whether in pursuance of section 35 of the Electoral Act or otherwise howsoever or in anyway printing or publishing the names and photographs of any other persons as the candidates of the second defendant for” the 2007 Governorship Elections in Yobe State on the ballot paper or any other document however.

The 3rd defendant (the appellant herein) also on 6th March 2007 filed a notice of preliminary objection and a memorandum of conditional appearance to the suit. He filed a 6-paragraph supporting affidavit with numerous exhibits annexed thereto. He also filed a further and better affidavit in support of the preliminary objection on 8th March 2007. The grounds for the preliminary objection at pages 99-100 of the record are as follows:

1. “That this action is an abuse of court process as same issue had been decided by the Federal High Court, Maiduguri Judicial Division in suit No. FHC/MG/CS/8/2007.
2. That this action ought to have been commenced by way of writ of summons and not by originating summons.
3. That this action is an invitation to the court to resolve internal dispute of the 2nd defendant as to who should be its gubernatorial candidate in Yobe State.
4. That plaintiffs names were dropped by the 2nd defendant because they were indicted by the Economic and Financial Crimes Commission and the 2nd defendant would have lost an opportunity to field a gubernatorial candidate for Yobe State if they were not substituted before 14/02/2007, and the plaintiffs were informed by the 2nd defendant before they were substituted.
5. That this action has been overtaken by events as the time within which to submit final list of candidates for the election to INEC closed on 14/2/2007 and Senator Mamman Ali duly confirmed by INEC far before this action was instituted.”

The court heard and granted the application for leave to amend the originating summons on 9th March 2007. On the same day, after granting the application for amendment the court ordered that both the preliminary objection and the amended originating summons should be argued together.

On 19th March 2007 the learned trial Judge, in a considered judgment, overruled the preliminary objection and entered judgment in favour of the plaintiffs on their amended originating summons granting all the reliefs claimed. It is against this judgment that the appellant has appealed to this court.

The grounds of appeal without their particulars, as contained at pages 183-185 of the record, are as follows:

1. The learned trial judge erred in law in entertaining the plaintiffs claim when the Honourable court had no jurisdiction to hear the claim the matter being an abuse of the court process.
2. The learned trial judge erred in law in assuming territorial jurisdiction in this matter without regards to Order 11 of the Federal High Court Rules 2000 despite his attention being drawn to it.
3. The learned trial judge erred in taw in proceeding with the matter to hearing when the originating summons and other processes was (sic) not served on the 3rd defendant/appellant after being joined as a party.
4. The learned trial judge erred in law where he insisted that the preliminary objection of the 3rd defendant/appellant be taken together with the amended originating summons of the plaintiff which was just granted without affording the appellant an opportunity to file counter affidavit thereby occasioning a miscarriage of justice.

It is pertinent to note at this stage that the appellant herein has since been sworn in as the Governor of Yobe State.