Independent National Electoral Commission V. Democratic Peoples Party & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Asaba delivered by Hon. Justice C. M. A. Olatoregun-Ishola on 01/03/2013 wherein the learned trial judge ordered that the appellant hereiry conduct a fresh election for Ukwuani Constituency of the Delta State House of Assembly. Below are the facts that led to this appeal:

The 5th respondent contested and won in Ukwuani constituency in the Delta State House of Assembly election in the April 2011 election organized and coordinated by the appellant. On 13/09/2012, the 5th respondent wrote to the 1st & 2nd respondents a letter informing them of his resignation from the Democratic People’s Party.

The grounds upon which the 5th respondent resigned from the party include division, fractionalization, disaffection and unresolved crises. The DPP, through the party secretary then wrote to the 4th respondent urging him to declare the seat occupied by the 5th respondent vacant.

The 1st and 2nd respondents on 01/11/2012 commenced an action via originating summons before the Federal High Court for the determination of the following questions:

1. Whether under section 109(1)(g) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended, the 2nd Defendant is under an obligation to declare the seat for Ukwuani constituency of the 1st defendant vacant in the light of the 3rd defendant defecting from the 1st Claimant to the Peoples Democratic Party.
2. Whether the 3rd defendant by defecting to the Peoples Democratic Party from Democratic Peoples Party has lost his seat in the Delta State House of Assembly in the light of Section 109 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The 1st and 2nd respondents by the Originating Summons also sought the following reliefs:

1. A Declaration that the seat for Ukwuani constituency of the Delta State House of Assembly has become vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party on the floor of the 2nd defendant on Thursday the 20th Day of September, 2012.
2. An Order compelling the speaker, Delta State House of Assembly to declare the seat for Ukwuani constituency of the Delta State House of Assembly vacant.
3. An Order of perpetual injunction restraining the 3rd defendant from further parading himself as a member of the Delta State House of Assembly on the basis of the House of Assembly Elections held in April, 2012.
4. An Order directing the 4th defendant to immediately commence the process of conducting a fresh election for Ukwuani constituency of the Delta State House of Assembly.
5. An such further or other orders as the Honourable Court may deem fit to make in the circumstances.

The learned trial judge found in favour of the 1st and 2nd respondents and ordered that the appellant commence the process of conducting fresh election for Ukwuani constituency of the delta State House of Assembly.

Aggrieved, the appellant filed a notice of appeal on 17/04/2013. The appellant’s brief of argument was filed on 03/06/2013. The 1st respondent’s brief was filed on 05/09/2013. The 1st respondent’s name was subsequently struck out by the Court on 10/02/2014. The 2nd respondent’s brief was filed on 13/06/2013 while the 3rd & 4th respondents’ brief was filed on 14/06/2013. The 5th respondent filed his brief on 27/06/2013.

The appellant in the brief settled by Ahmed Raji SAN, raised two issues for determination which are as follows:

1. Whether the Federal High Court Per Hon. justice C.M.A. Olatoregun-Isola sitting at Asaba was right to have assumed jurisdiction over the suit and the proceedings thereof in its entirety was not a nullity having regards to the provisions of Sections 251(1) (p) (q) (r) and Section 272(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Whether the proceeding at the trial Court was not in breach of Section 36(1) of the Constitution and not a nullity when the 4th Defendant/Appellant could not defend the Suit on account of non-service of hearing notice for the proceedings which led to the judgment against it.

The 2nd respondent in the brief settled by R. O. Ndugbu Esq. adopted the issues as raised by the appellant. The 1st, 3rd, 4th and 5th respondent conceded to the appeal in their respective briefs settled by E. F. Sarwuan, Augustine Alegeh SAN and Mohammed A. Abubakar, A. B. Sulu Gambari, Adeola Adedipe, Zekeri Garuba, and Ozeigbe Omo-Egharevba (Miss) respectively.

At the hearing of the appeal, the 1st Respondent after adopting its brief, conceded the appeal. The counsel for the 3rd and 4th respondents conceded the appeal while the 5th respondent’s counsel also conceded the appeal. Only the 2nd Respondent opposed the appeal. I will therefore only consider the 2nd Respondent’s brief in opposition to the appellant’s brief in the determination of this appeal.

ISSUE ONE

1. Whether the Federal High Court Per Hon. justice C.M.A Olatoregun-Isola sitting at Asaba was right to have assumed jurisdiction over the suit and the proceedings thereof in its entirety was not a nullity having regards to the provisions of Sections 251(1) (p) (q) (r) and Section 272(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Ahmed Raji SAN of counsel for the appellant on this issue submitted that it is entrenched in our judicial system that a Court must be vested with requisite jurisdiction before adjudicating a case before it. Senior counsel cited Attorney-General Benue State v. Umar (2008) 1 NWLR Pt.1068 Pg.311; Adetona v. I.G. Ent. Ltd. (2011) 7 NWLR Pt.1247 Pg.535; Mobil Producing Nig. Ltd v. LASEPA (2002) 18 NWLR Pt.798 Pg 1.

Senior counsel argued that the question to be determined in this appeal is whether the Federal High Court had the jurisdiction to adjudicate over the suit at the trial court. Senior counsel cited Madukolu v. Nkemdilim (1962) ALL NLR 587 and emphasized the conditions for jurisdiction.