John Egesi & Ors V. Peoples Democratic Party & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 8th March 2011, the Appellants herein, as Plaintiffs, commenced suit No.FHC/EN/CS/73/2011 against the Respondents herein as Defendants, claiming for-

1. An Order of Declaration that the first plaintiff is the person and no other entitled to have respective name submitted by the first defendant to the second defendant as the Senatorial candidate of the PDP in Enugu West, Senatorial district in the 2011 general elections.
2. An Order of Injunction restraining, forbidding, precluding and/or prohibiting the 1st defendant from submitting any names other than the name of the 1st plaintiff for the said election and the 2nd defendant from recognizing, dealing with or acting on any list of names other than as stated above.
3. An Order of declaration that the 2nd and 3rd plaintiffs are the persons and no other entitled to have their names submitted by the 1st Defendant to the 2nd defendant as the candidates for the National Assembly/House of Representatives Constituencies of Aninri/Awgu/Oji River and Ezeagu/Udi respectively in Enugu State in the 2011 general elections.
4. An Order of injunction restraining forbidding, precluding and or prohibiting the 1st defendant from submitting any other names than the names of 2nd and 3rd plaintiffs for the said elections and the 2nd defendant from recognizing, dealing with or acting on any list of names other than as stated in (3) above.
5. An Order of declaration that pursuant to Section 87(1)(2)(4) for the Electoral Act, 2010, the plaintiffs are the persons entitled to contest on the platform and be sponsored by the 1st Defendant as the candidate of the 1st Defendant in the April, 2011, general elections in Enugu State.
6. An Order of perpetual injunction pursuant to Section 87 of the Electoral Act, 2010, restraining the defendants, their servants, agents and or officers from adopting fielding, sponsoring, dealing with and or recognizing any other candidates except the plaintiffs for the relevant elections in April 2011 in Enugu State.

The writ of summons commencing the suit was accompanied by a statement of claim (subsequently amended), witness’ statements on oath and other documents. The 1st defendant, on 16th March 2011, filed a memorandum of conditional appearance and a Motion on Notice for an order, inter alia, dismissing the suit in limine on the grounds that the plaintiffs lack the locus standi to complain that the 1st defendant breached the provisions of the 2010 Electoral Act in the nomination of its candidates for the general election to the Senate seat and House of Representatives seats in question, the suit is academic and devoid of life issues and that the suit is bad for misjoinder of causes.

The 2nd set of defendants, who were not defendants at the commencement of the suit, but were later joined as defendants filed a joint statement of defence accompanied by witness statements on oath and other documents. On the 28th February 2012, the 2nd set of defendants filed a motion on notice praying for, inter alia, an order striking out the suit for lack of jurisdiction on the grounds that the issue in dispute in the suit is within the exclusive domestic domain of the 1st defendant and is non-justiciable.

After considering the arguments of counsel for both sides, the trial court rendered its ruling on 20th July 2012, upholding the objection for the sole reason that it has no jurisdiction to entertain the suit because it seeks the determination of the question of which as between the primary elections of 5th and 6th January 2011 that produced the 1st to 3rd plaintiffs as the 1st defendant’s candidate for the elections in question and the primary elections of 11th January 2011 that produced the 3rd to 5th defendants as such candidates is the valid primary elections of the 1st defendant for the nomination of its candidates for the 9th April 2011 general election in the respective Constituencies in question, and accordingly struck out the suit.

Dissatisfied with this decision, the plaintiffs on 17-10-2012 commenced this appeal No.CA/E/433/2012 by filing a notice of appeal containing 4 grounds of appeal. The parties to this appeal have filed, exchanged and adopted their briefs of argument in this appeal, which consist of the appellants’ brief of argument, 3rd – 5th respondents’ brief of argument and the appellants’ reply brief.

In their brief, the appellants raised the following issues for determination-

1. Whether the lower court was right to have brushed aside the mandatory requirements of Order 29 of the Federal High Court Civil Procedure Rules and to proceed to take the application of the 3rd – 5th respondents in limine (Ground 1)
2. Whether the lower court was right when it decided to consider extraneous matters outside the statement of claim to decide the issue of jurisdiction over the subject matter of the suit (Ground 2 & 4)
3. Whether the lower court was right in holding that the Supreme Court decision in LADO V. CPC applied to the facts and circumstances of this case (Ground 3)

The 3rd-5th respondents in their brief raised the following issues for determination-

1. Whether the trial court was right when after granting the motion for extension of time filed by the 3rd – 5th respondents seeking leave to raise the issue of jurisdiction outside the period stated in Order 29 Rule 4(a) of the Federal High Court Civil Procedure Rules 2009, it heard the application to strike out the suit before the hearing of the substantive suit.
2. Whether the trial court in its ruling considered extraneous matters not relevant in the determination of the application to strike out the Suit.
3. Whether the trial court was right when it relied on the Supreme Court case of Senator YAKUBU GARBA & ORS. V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS. (2011) 18 NWLR (PT.1279) 689 in striking out the suit.

I prefer to decide this appeal on the basis of the issues framed by the appellants.

Let me start with issue No. 1. I have observed that issue No 1 of the appellant’s brief and the first ground of this appeal which it stated to be derived from, contain different complains against the ruling of the trial court. For ease of reference I will reproduce the said ground and issue. Ground 1 complains that “the Learned Trial Judge erred in law when he held that it could determine the objection to jurisdiction in limine when same was filed outside the time limited by the Rules of Court for bringing such objection in limine.

PARTICULARS

(a) By virtue of Order 29 of the extant Federal High Court (Civil Procedure) Rules 2009, once an objection of jurisdiction is not taken within 21 days of service, it can only be taken along with the substantive suit.

(b) Rules of Court must prima facie be obeyed and complied with issue No.1 of the appellant’s brief questions “whether the lower court was right to have brushed aside the mandatory requirements of Order 29 of the Federal High Court (Civil Procedure) Rules and to proceed to take the application of the 3rd-5th respondents in limine, while the ground complains about the holding of the trial court that it could determine the objection to jurisdiction in limine even though it was filed out of the 21 days period allowed for the filing of such objection.

It is clear from the ground that the trial court considered the provisions of Order 29 of the High Court (Civil Procedure) Rules and whether the application can be heard and determined in limine in spite of the fact that it was made over 21 days after service of the originating process on the defendants.