All Progressive Grand Alliance Vs. Senator Christiana N.d. Anyanwu (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Owerri Division (the lower court) delivered on 9/11/2012 allowing the cross appeal filed by the 2nd respondent herein (HON. INDEPENDENCE OGUNEWE), who was the 1st respondent/cross appellant at the lower court, setting aside the judgment of the Federal High Court, Owerri Judicial Division (the trial court) delivered on 29/3/2011 and remitting the case to the Federal High Court, Owerri for trial on the merit.

By an originating summons filed on 11/2/2011 before the trial court, the 2nd respondent herein, HON. INDEPENDENCE OGUNEWE sought the determination of a number of questions and consequential reliefs in respect thereof against (i) The All Progressives Grand Alliance (APGA), the Appellant herein, (ii) INEC, the 3rd respondent herein and (iii) SENATOR CHRITIANA N.D. ANYANWU, the 1st respondent herein. The thrust of the claim was that the plaintiff, HON. INDEPENDENCE OGUNEWE, is a member of APGA and contested the primary election for the Imo Senatorial Zone to represent the Zone in the 2011 general elections. That the primary election took place on 14/1/2011 with three names indicated on the ballot but only two candidates, the plaintiff and one Chief Nick Oparandu were present and physically contested the election and that he (plaintiff) won the election. It was his contention that SENATOR CHRISTIANA ANYANWU, whose name was also on the ballot, was not a member of APGA on 14/1/2011 when the primary elections were held, as she was, at the time an active member of the Peoples Democratic Party (PDP) and in fact participated in the presidential primary election of that party held at the Eagle Square, Abuja from 13th – 14th January 2011.

In their counter affidavits, appellant and the 1st respondent herein averred that the 1st respondent’s name was included on the ballot on 14/1/2011 because she had joined the party after duly resigning her membership of the PDP. Her letter of resignation from the PDP and her membership card for APGA were exhibited to their respective counter affidavits. The appellant also averred that the 1st respondent was present and duly contested the primary and won the election with the highest number of votes.

In determining the originating summons, the learned trial Judge formulated three issues for determination:

1. “Whether the use of Originating Summons by the Plaintiff is appropriate in the circumstances and on the facts of this case.
2. If the answer to issue one is in the affirmative whether the plaintiff has proved this case on the preponderance of evidence; and
3. If the answer to issue No, 1 is in the negative, what is the appropriate order to make in the peculiar circumstances of this case”.

In a considered judgment delivered on 29/3/2011, the learned trial Judge held that having regard to the contentious nature of the suit, the originating summons procedure was not the appropriate method of instituting the action. However, rather than order the filing of pleadings, the court upon the consideration of Sections 31 (1) and 87 (11) of the Electoral Act 2010 (as amended), struck out the suit on the ground that nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time, The 3rd defendant (1st respondent) herein, was dissatisfied with the order striking out rather than dismissing the suit and filed a notice of appeal against it at the lower court. The plaintiff (2nd respondent herein) was also dissatisfied with the decision and filed a cross appeal. The main appeal was dismissed while the cross appeal was allowed. The 1st respondent herein was dissatisfied with the dismissal of the appeal and filed a further appeal to this court. The appeal in respect thereof is Appeal No. SC.21/2013; SENATOR CHRISNANA N.D. ANYANWU V. HON. INDEPENDENCE CHIEDOZIE OGUNEWE & ORS which was heard along with the instant appeal.

In the cross appeal, which is the subject of the instant appeal, the cross appellant formulated two issues for determination by the lower court, to wit:

1. Whether an order striking out of the suit instead of an order for filing pleadings was proper in the circumstances of the suit
2. Whether it was proper for the lower court to have struck out the suit merely because the National Assembly Elections were scheduled to hold seven days from the delivery of the judgment

The lower court in the introductory part of its judgment in respect of the cross appeal noted that the 2nd respondent, now the present appellant, raised the issue of the jurisdiction of the trial court to entertain the suit having regard to the fact that the plaintiff’s claim was in respect of membership of a political party. However, in resolving the issues in the cross appeal, it did not address the issue of jurisdiction. It allowed the cross appeal, set aside the judgment of the trial court and remitted the suit to the Federal High Court for trial on the merits. The appellant is most dissatisfied with this decision and filed a notice of appeal on 14/1/2013 containing 3 grounds of appeal.

In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. The Appellant’s brief, settled by PRINCE ORJI NWAFOR-ORIZU is dated and filed on 15/3/2013. He also filed a Reply brief on 15/3/2013. EMEKA O. NWAGWU ESQ. settled the 1st Respondent’s brief, which was filed on 22/3/2013. The 2nd respondent’s brief filed on 1/3/2013 was settled by K.C. NWUFO ESQ. Finally the 3rd respondent’s brief, settled by A.T. UDECHUKWU ESQ. was filed on 3/3/2013.

At the hearing of the appeal on 14/11/2013 learned counsel adopted and relied on their respective briefs and urged their respective positions on the court. In urging this court to allow the appeal, Prince Nwafor-Orizu cited two additional authorities on the circumstances in which the court has jurisdiction to adjudicate on disputes arising from a party’s primary election. They are:

Uwazurike V. Nwachukwu (2013) 3 NWLR (Pt.1342) 503 and Lado V. C.P.C. (2011) 18 NWLR (Pt.1279) 689. In urging the court to dismiss the appeal, K.C. Nwufo Esq. learned counsel for the 2nd respondent cited the additional authority of: Buhari V. Obasanjo (No.2) (2003) 9 -11 SCNJ 74 in respect of the position taken by the 1st and 3rd respondents. A.T. Udechukwu Esq., on behalf of the 3rd respondent urged us to allow the appeal on the ground that the concurrent findings of the two lower courts were that the appellant’s case before the trial court was on the issue of membership of a political party, which the court had no jurisdiction to entertain.

The appellant formulated two issues for the determination of this appeal as follows:

1. Is it correct for the court below to determine this appeal on merit without settling the challenge of jurisdiction of the court below to hear and determine the suit itself.)
2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all

The 1st and 3rd respondents adopted the issues formulated by the appellant. The 2nd respondent distilled the following two issues as arising for determination in the appeal:

1. Whether there was any proper challenge of the jurisdiction of the court below to hear and determine the suit itself that would have prevented the court below to determine the appeal on the merit
2. Whether the question of membership of a political party avails an aspirant in a primary election, to enable him invoke the jurisdiction of the court below to determine same under the provisions of the Electoral Act, 2010, the provisions of the 1999 Constitution of Nigeria (as amended) or any other enactment

It is relevant to observe at this stage that the 2nd and 3rd respondents raised preliminary objections in their briefs of argument. No leave was sought to move them at the hearing of the appeal. The preliminary objections are accordingly deemed abandoned. See: A.G. Rivers State V. Ude (2006) 17 NWLR (pt. 1008) 436; Magit v. University of Agriculture, Makurdi & Ors. (2005) 19 NWLR (pt. 959) 211 @ 239 H-D; Tiza v. Begha (2005) 15 NWLR (pt. 949) 616; Nsirim (1990) 5 SCNJ 174.