Engr. Vita Abba & Ors V. Independence National Electoral Commission (INEC) & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE J.C.A. (Delivering the Lead Ruling)

At the Enugu Judicial Division of the Federal High Court, before the Honourable Justice A.R. Mohammed, the Plaintiffs/Applicants as members of the Executive Committee of the Peoples Democratic Party (PDP) Enugu State initiated proceedings in Suit No. FHC/EN/CS/298/2010 and in their endorsements on the Writ of Summons and Statement of Claim dated and filed on the 18th day of October, 2010, supplicated for declaratory and injunctive reliefs against the Defendants/Respondents, couched in the following terms:-

a) A DECLARATION that the 1st Defendant as an executive, non-judicial agency of Government does not have the power, under the provisions of the Electoral Act, 2006 and/or the Electoral Act 2010 and/or the Independent National Commission Act Cap. 15 L.F.N. 2004 and/or the Constitution of the Federal Republic of Nigeria, 1999 and/or any other legislation, to a State Executive Committee of a political party illegal or illegally constituted on the ground, as perceived by the Defendant, that the at which they were elected was not in line with the provisions of the party’s Constitution, and/or on any other ground whatsoever.

b) A DECLARATION that the 1st Defendant does not have the power to enforce the provisions of the Constitution of a political party or its internal regulations.

c) AN ORDER of Court setting aside the letter from the 1st Defendant dated 27th September, 2010. Ref: INEC/DPPM & L/PDP/024/26, as null and void same being ultra vires the Defendant.

d) AN ORDER of injunction restraining the 1st Defendant by itself, servants, agents, privies or any person(s) howsoever called, from refusing or failing to deal with the Plaintiff, for all intents and purposes including all matters relating to the 2011 general election, as the members of the Executive Committee of the Peoples Democratic Party in Enugu State, or in any manner whatsoever undermining the authority, powers, rights and privileges of the Plaintiffs as the members of the Executive Committee of the Peoples Democratic Party in Enugu State until the expiration of the term office of the Plaintiff.

e) AN ORDER of injunction the 2nd Defendant by its national Executive Committee and any organ and/or officer from ceasing, refusing and or failing to and or relate with the Plaintiffs as the members of the executive Committee of the Peoples Democratic Party, Enugu State on the basis of the letter of the 1st Defendant dated 27th September, 2010, Ref: PPM & L/PDP/024/26, and/or for any other reason until the expiration of the term of office of the Plaintiffs.

f. AN ORDER of injunction restraining the 2nd Defendant by its National Executive whatsoever that detracts from the Plaintiff position as members of the Executive Committee of the Peoples Democratic party in Enugu State or from holding, organizing or directing the holding or organization of another or fresh congress for, or, election of members of the Executive Committee of the People Democratic party in Enugu State until the expiration of the four year term office of the Plaintiffs.

The facts material to this case as can be distilled from the processes filed by the Applicant herein, are that on the 19th of October, 2010, the Plaintiffs who for purposes of this Ruling shall henceforth be referred to as the Applicants/Respondents, filed a motion for interlocutory injunction to restrain the 1st and 2nd Defendants,{Respondents from doing certain things touching on the subject matter of the suit pending the determination of the substantive suit.

After filing the motion on Notice, the Defendants who also shall herein after to be referred to as the Respondents, published in the Thursday 21st October, 2010 Edition of “The Vanguard Newspaper,” their intention to conduct fresh congresses in some PDP States including Enugu State.

Following the exigency of the situation, the Applicants filed a motion Exparte for interim injunction to restrain the Respondents from proceeding with the holding of the fresh congress as envisaged, pending the hearing and determination of the motion on Notice for interlocutory injunction already before the court. On the 25th of October, 2010, the Federal High Court heard the application which was refused but ordered that the Respondents be served with the Motion on Notice for interlocutory injunction and the hearing of the motion on Notice was adjourned to 28th October, 2010. While the suit and the motion for interlocutory injunction were still pending before the Court below, the 2nd Respondent through the Media Aid to her National Chairman (Dr. Okwesilieze Nwodo), announced or published in “The Vanguard” of 24th October 2010 that the Congress to elect new officers for the Party (PDP) in Enugu State would hold on Saturday, 30th October, 2010. Upon resumption of hearing on the 28th October, 2010, the learned Senior counsel for the Defendants/Respondents intimated the court that they needed time to file processes in reaction to the motion for interlocutory injunction after which the learned counsel for the Applicants drew the court’s attention to their (Applicants’) motion Ex-parte for interim injunction and sought to move same on the ground that the res of the substantive suit would be dissipated before the hearing of the motion for interlocutory injunction, consequent upon the fixing of the party’s congress for 30th October, 2010 by the Respondents.

Addresses were then proffered on the desirability of hearing the motion ex parte and upon discovering that the learned counsel for the Respondents, according to the learned Senior Counsel to the Plaintiffs/Applicants, was unwilling to undertake not to dissipate the res before the hearing of the motion on Notice, the court yet refused to hear the motion ex parte but made an order preserving the status quo ante pending the hearing of the Motion on Notice which he subsequently adjourned to the 3rd November, 2010.

On the 3rd November, 2010, the court did not sit and the case was subsequently adjourned to the 10th of November, 2010 and on the said 10th of November, 2010. the learned trial Judge suo motu placing reliance on Section 295 of the 1999 Constitution, referred some of the issues which he considered to be substantial questions of law, to this Honourable Court for determination. The order for the preservation of the status quo was also vacated. According to the Applicants, the 2nd Respondent is determined and poised to hold fresh PDP State Congress in Enugu State despite the pendency of this case and will do so before the determination of the issue(s) by this Honourable Court if not restrained.

Apprehensive of the determination and intention of the 2nd Respondent to hold her Congress inspite of the pending suit and referral, Chief (Mrs.) A. J. Ofiah (SAN) for the Applicant, on the 10th day of November,2010; filed a Motion Ex-Parte with the same date in this court which was duly granted. The Applicants also on the same 10th of November, 2010 filed a motion for interlocutory injunction supported by an affidavit of twenty paragraphs sworn to by Vincent Ene a legal practitioner in the Law firm of the Applicants’ counsel.