Honourable Joel Danlami Ikenya V. Hon. Emmanuel Bwacha Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A: (Delivering the leading Judgment)

This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:- FHC/ABJ/M/304/2007 delivered on 17th May 2007.

The 1st and 2nd Applicants who are now 1st and 2nd Respondents commenced an action at the lower court against the 1st, 2nd and 3rd Respondents who are now 3rd and 4th Respondents and Appellant in this Court. They asked for the following orders:-

“(a) An order of mandamus compelling 1st and 2nd Respondents to declare the 1st Applicant as the 2nd Applicant’s candidate for the Southern Senatorial District of Taraba State and consequently the winner of the 21st April 2007 Senatorial Election for the said Southern Senatorial District of Taraba State, the 2nd Applicant having won the said election.

(b) A declaration that the 2nd Applicant’s expulsion of 3rd Respondent from 2nd Applicant’s party is valid and subsisting and extinguishes any claim or right thereto accruing to the said 3rd Respondent. The 1st and 2nd Respondents are estopped from relying on any doubt as to the 2nd Applicant’s choice in the Southern Senatorial District of Taraba State.”

At the hearing in the lower Court the Appellant filed a motion urging the Court to strike out the originating motion of the Respondents.

The lower Court consequently ordered the parties to file written addresses on both the substantive suit and the preliminary objection.

The written addresses of all the parties to the suit were adopted by them and Judgment was delivered in favour of the 1st and 2nd Applicants i.e. 1st and 2nd Respondents.

Dissatisfied with the said Judgment of the lower Court, the 3rd Respondent now Appellant appealed to this Court.

The learned Counsel for the Appellant formulated two issues for determination set out as follows:-

“(1) Whether the learned trial Judge had jurisdiction to make orders of mandamus in an election matter in view of the provisions of Section 285 of the 1999 Constitution of the Federal Republic of Nigeria and Sections 69, 76 and 140 of the Electoral Act 2006.

(2) Whether the entire mandamus proceedings at the trial Court were not an abuse of Court process in view of Appeal No. CA/K/127/M/2007 filed by the Applicants and pending before the Court of Appeal Kaduna.”

The learned Senior Counsel for the 1st and 2nd Respondents on the other hand also formulated two issues for determination, they are set out as follows:-

“(1) Whether from the facts and circumstances of this case, the trial Court has the jurisdiction granting the order of mandamus claimed by the 1st and 2nd Respondents.