Alhaji Sefiu Adegbenga Kaka V. Chief Adebisi Adegbuyi & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The 1st respondent took an originating summons against the appellant and the 2nd – 3rd respondents at the Federal High Court, Abeokuta, (the court below) in which a preliminary objection by the appellant to get rid of the suit was overruled by the court below, hence the appeal on the refusal of the court below to uphold the appellant’s preliminary objection.

   Bereft of details, the appellant and the 1st respondent were at all material times card carrying or registered members of the 2nd respondent political party. The 2nd respondent was statutorily required to hold democratic primaries under its constitution to choose or nominate its candidate for the senatorial seat of Ogun East Senatorial District at the general elections of 2.4.2011. The appellant’s case was that he emerged the unopposed candidate at the primaries after the 1st respondent voluntarily withdrew from the race. The appellant’s name was then forwarded to the 3rd respondent as the nominated candidate of the 2nd respondent for the scheduled election. The 1st respondent’s case was that 2nd respondent hand-picked the appellant to vie for the seat at the scheduled general election. The 1st respondent filed an originating summons challenging the alleged nomination of the appellant.

   The appellant took preliminary objection to the originating summons on sundry grounds that the issues raised therein were contentious and should be heard on the general cause list; that the 1st respondent lacked the locus standing to bring the action; and that the court below should not have rushed the proceedings in the way it did by curtailing the appellant’s time to adequately respond to the preliminary segment of the proceedings targeted at disposing of the suit in limine in favour of the appellant. The preliminary objection of the appellant to terminate the suit was heard and overruled by the court below.

   A notice of appeal with four grounds of appeal was filed by the appellant challenging the Ruling of the court below, Arguments on the appeal contained in the appellant’s brief filed on 15.6.11, were proffered under these issues for determination –

“(i) Whether the entire proceedings of this suit at the lower court breached the Appellant’s constitutional right to fair hearing and is therefore a nullity.

(ii) Whether the learned trial judge was right when she upheld the locus standi of the 1st respondent to commence this suit.

(iii) Whether the learned trial judge properly assumed jurisdiction to entertain this suit.”

   The pith of the argument on the first issue was that the cause of action arose on 10.1.11, while the suit was filed on 8.3.11, and served on the appellant on 25.3.11, a Friday, and the preliminary objection was taken on 31.3.11, which stampeded the appellant into responding to the suit, more so the appellant was deprived of the statutory period of 14 days stipulated by Order 13 rule 35 (15) of the Rules of the court below for the defendant’s response to the originating summons especially as the originating summons, enlarged the statutory period to 30 days within which the appellant was to deliver his defence to the suit, consequently by rushing the proceedings on 1.4.11, culminating in the dismissal of the objection, when the application was yet to be served on the 2nd – 3rd respondents, the court below breached the appellant’s right to fair hearing and the proceedings thereat rendered null and void vide Orugbo v. Una (2002) FWLR (Pt.127) 1024 or (2002) 9 – 10 SC 51 at 64; Ariori v. Elemo (1983) 1 SCNLR 1 at 4 and Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt.53) 678 at 684.

   The contention on the second issue was that the 1st respondent had voluntarily withdrawn from the race before the primaries were held and ceased to have any recognizable interest with respect to the senatorial election to vest him with the standing to sue on the originating summons in the court below; more so the conduct of the primaries and nomination of candidates for election are intra-party matters not cognizable by the court, especially as the 1st respondent lacked the capacity to file the suit vide section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the cases of Anazado v. Audu (1999) 4 NWLR (Pt.600) (no pagination), Chukwu v. Ichgowo (1999) 4 NWLR (Pt. 600) (no pagination) and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310.

   It was submitted on the third issue that the facts whether the 1st respondent was the only senatorial candidate of the 2nd respondent and that, the appellant did not participate in the primaries conducted by the 2nd respondent for the senatorial seat on 10.1.11, were key to the originating summons which the appellant and the 1st respondent tendered contentious affidavit evidence which the court below overlooked, therefore by Order 3 rules 6 and 7 of the Rules of the Court below read together with the cases of N.B.N. Ltd. v. Alakija (1978) 9 – 10 SC 59 and Amasike v. Registrar General C. A. C. (2010) 5 – 9 SC (Pt.1) 147 at 153, the suit was not to proceed on originating summons but on the general cause list.

   The 1st respondent’s brief dated and filed on 15.7.11, identified one issue for determination at page 4 thereof thus –

“Whether this appeal is not wholly academic in view of the dismissal of the 1st respondent’s originating summons being the object of the appellant’s notice of preliminary objection.”

   The 1st respondent argued that the substantive action was dismissed on 1.4.11, rendering unnecessary the appeal brought by the appellant against the overruling of his preliminary objection by the court below, as the dismissal of the suit favoured the appellant and rendered his interlocutory appeal academic vide Plateau State v. A.G. Federation (2006) All FWLR (Pt. 305) 590 at 646, Abubakar v. Yar’Adua (2008) All FWLR (Pt.404) 109, Habib Nig. Plc v. Gifts Unique Nig. Ltd. (2005) All FWLR (Pt.241) 234 at 260, Edu v. Yusuf (2007) All FWLR (Pt. 348) 984, Unity Bank Plc v. Bouari (2008) All FWLR (Pt.416) 1825, Sokwo v. Kpongbo (2008) All FWLR (Pt.410) 680.