Anthony Igwemma & Anor V. Chinedu Benjamin Obidigwe & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division delivered on 12th April, 2019 which affirmed the judgment of the Federal High Court Awka, dismissing the suit of the Appellants, relying only on one ground out of the various grounds raised by the 1st and 2nd Respondents in their various Notices of Preliminary Objection. The facts of the case giving birth to this appeal are as hereunder stated:-

The Appellants filed an Originating Summons as Plaintiffs against 1st -3rd Respondents as Defendants in suit No. FHC/AWK/CS/148/ 2018. In the said Originating Summons, the following questions were formulated:-

1. Whether having regards to the provisions of Section 31 (5) and 31(6) of the Electoral Act 2010 (as amended), the 1st defendant was qualified to be nominated as the All Progressive Grand Alliance (APGA) candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
2. Whether having regard to the provisions of Section 87(1), 87(2) 87(4) (c)(ii) of the Electoral Act 2010 (as amended), Rule 10(1) and (2) of the APGA Electoral Guidelines for Primary Election 2018, the 2nd Plaintiff is the validly nominated candidate of the 2nd defendant to represent Anambra East and West Federal Constituency in 2019 General Election.
3. Whether having regard to the provisions of Section 87(1), 87(2) 87(4)(c)(ii) of the Electoral Act 2010 (as amended) Rule 10(1) and (2) of the APGA Electoral Guidelines for Primary Election 2018, the 2nd defendant ought not to have submitted the name of the 2nd Plaintiff to the 3rd defendant as its validly nominated candidate of the 2nd defendant to represent Anambra East and West Federal Constituency in 2019 General Election.

The Appellants also sought the following reliefs:-

1. A declaration of the Honourable Court that the 1st Defendant is not statutorily qualified to stand election as a candidate for the Anambra East and West Federal Constituency in the 2019 Election.
2. A declaration of the Honourable Court that the purported nomination of the 1st Defendant by the 2nd Defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election is unconstitutional, illegal, null and void and of no effect whatsoever.
3. A declaration of the Honourable Court that the purported nomination and submission of the 1st Defendant’s name by the 2nd Defendant to the 3rd Defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election having violated the provisions of Section 31 (5) of the Electoral Act 2010 (as amended) is unconstitutional, illegal, null and void and of no effect whatsoever.
4. An order of the Honourable Court setting aside the illegal and purported nomination and submission of the 1st Defendants name by the 2nd Defendant to the 3rd Defendant as its candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
5. An order of the Honourable Court setting aside the illegal recognition and publication of the 1st Defendant’s name by the 3rd Defendant as the 2nd Defendant’s candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
6. A declaration of the Honourable Court that the 2nd Plaintiff is the validly nominated candidate of the 2nd Defendant’s candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
7. An Order of perpetual injunction restraining the 1st Defendant from campaigning and parading himself as the 2nd Defendant’s candidate for candidate for the Anambra East and West Federal Constituency in the 2019 General Election.
8. An Order of perpetual injunction restraining the 3rd Defendant by itself, any of its officials, or people working for and through them from further recognizing the 1st Defendant as the 2nd defendant’s candidate for candidate for the Anambra East and West Federal Constituency in the 2019 General Election. (found at pages 1 to 4 of the record of appeal).

Upon being served the Originating Summons, all the respondents filed memoranda of conditional appearances as they felt the appellants who did not take part in the primaries had no locus standi to institute the action. They however followed it up with the filing of their respective counter affidavits. The 1st and 2nd Respondents also filed preliminary objection.

In the counter affidavits relied upon by the 1st and 2nd Respondents, the judgment in suit No. OT/194/2018 delivered by Amaechina, J. of the Otuocha Judicial Division, Anambra State High Court of Justice was referenced and exhibited. It was contended for the 1st and 2nd Respondents that the aforesaid judgment of the Otuocha High Court had found that the alleged false information on age declaration was not proved and that the 1st Respondent was qualified to contest the subject election.

The 1st Respondent contended in his defence that the judgment in suit No. OT/194/2018 was a judgment in rem which binds the Appellants even though they were not parties to the action leading to the judgment. The 2nd Respondent on its part raised the point in its Notice of Preliminary Objection that suit No. FHC/AWK/CS/148/2018 was an abuse of Court process. The 2nd Respondent further contended that the originating summons filed by the Appellants was not endorsed as mandatorily required by the Sheriffs and Civil Process Act and that the said originating summons was therefore incompetent.

The trial Court heard all the objections together with the main matter and on 6th February, 2019, delivered Ruling on the Defendant’s (now Respondents) preliminary objections on pages 630 – 631 of the Record of Appeal, the learned Trial Judge held as follows:-“No matter how one chooses to compare the two suits, their basic similarities are unmistakable. The arrow head in both suits is the 2nd defendant in this suit. The reliefs sought herein are the same in thrust with those in the earlier suit. In my considered view, this suit constitutes a clear abuse of Court processes. It is liable to be dismissed. Having thus held, it becomes unnecessary to proceed into any other or further determination herein. This suit is accordingly hereby dismissed.”

Dissatisfied with the above decision by the learned trial Judge, the Appellants filed Notice of Appeal against the said judgment.

The 1st Respondent on his part filed the 1st Respondent’s Notice of Contention as can be found on pages 730 – 731 of the record of appeal where he contended in the main that the judgment or Ruling of the trial Court be affirmed on ground other than the grounds relied upon by the trial Court, to wit: that the judgment of Otuocha High Court is a judgment in rem which also binds the Appellants.

The 2nd Respondent on its own part filed the 2nd Respondent’s Notice of Contention appearing on pages 636 -636A of the record of appeal. In this Notice, the 2nd Respondent contended inter alia that the originating summons by which this action was commenced was not properly endorsed as mandatorily required.

The Court below heard the appeal and on 12th April, 2019 delivered its judgment and held inter alia:-

1. That the issue of qualification of the 1st Respondent had been settled with finality by the judgment of Amaechina, J., of the Otuocha Judicial Division of the Anambra State High Court of Justice and that that same issue cannot be relitigated before a Court of coordinate jurisdiction as sought by the Appellants in suit No. FHC/AWK/CS/148/2018.
2. That suit No. FHC/AWK/CS/148/2018 was therefore an abuse of Court process.
3. That the Originating Summons filed by the Appellants was not properly endorsed as mandatorily required by the Sheriffs and Civil Process Act thereby rendering the originating summons incompetent.

Again, the appellants, not being satisfied with the said judgment has appealed to this Court vide Notice of Appeal filed on 23rd April, 2019.

From the three grounds of appeal as contained in the Notice of appeal, the learned counsel for the appellants, Ifeanyi Obiakor Esq., has distilled three issues for the determination of this appeal. They are contained in the Appellants’ brief filed on 16/5/19 and adopted on 13/6/19 at the hearing of this appeal. The issues are:-