Aondoakaa V. Obot & Anor (2021)

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, Calabar Division, delivered on 3/9/2015 affirming the judgment of the Federal High Court, Calabar Judicial Division per A.F.A. Ademola, J. delivered on 1st June 2010.

The facts that gave rise to this appeal are as follows: The Peoples Democratic Party (PDP) held primary elections, in December 2006 to determine its candidate for the Uyo Federal Constituency of Akwa Ibom State in the General Election fixed for April 2007. The 1st respondent, Hon. Emmanuel Bassey Obot, emerged winner and was duly presented to the Independent National Electoral Commission (INEC) as the party’s candidate. A dispute however arose when the 1st respondent’s name was substituted with the name of another candidate

​On 5/12/2007, the Court of Appeal, Calabar Division in Appeal No. CA/C/45/2007, delivered judgment in favour of the 1st respondent and ordered the President of the Court of Appeal to set up a new Tribunal to try the 1st respondent’s petition in Uyo. The appellant at the time was the Attorney General of the Federation and Commissioner for Justice (AGF). It was the 1st respondent’s contention that in his capacity as AGF, he wrote to the President of the Court of Appeal (PCA) urging His Lordship not to comply with the judgment ordering the constitution of a new panel in view of a petition he had received from one Bassey Etim, the person who had been substituted for the 1st respondent. The Hon. PCA however went ahead and complied with the order of the Court and set up the new panel.

​The new panel delivered judgment on 18th April 2008 and ordered that the 1st respondent be sworn into the House of Representatives as the member representing Uyo Federal Constituency. An appeal to the Court of Appeal was unsuccessful. The appeal was dismissed with an order that INEC should issue a Certificate of Return to the 1st respondent. It was contended that by a letter dated 16/2/2009, the appellant wrote to the Chairman of INEC, Maurice Iwu, urging him not to obey the judgment of the Court of Appeal, which he described as “an obvious desecration of the Institution of the Judiciary.” He also wrote to the Speaker of the House of Representatives advising him not to obey the judgment but “to allow the status quo ante to remain until the last or final word is heard from the Supreme Court on the issue.”

It is noteworthy that by Section 246(2) of the 1999 Constitution, as amended, the decisions of the Court of Appeal in respect of Appeals arising from National and State Houses of Assembly elections are final.

Consequent upon the letters written to the Chairman of INEC and the Speaker of the House of Representatives, the 1st respondent was neither issued with his Certificate of Return nor was he sworn into office. He therefore instituted an action before the Federal High Court, Calabar Judicial Division vide an Originating Summons dated 15/5/2009, against the appellant and 2nd respondent. The appellant was sued in his capacity as Attorney General of the Federation as 1st defendant and in his personal capacity as 2nd defendant. The 1st respondent, as plaintiff, raised the following questions for determination:

1. Whether the conduct of the 2nd Defendant in purported exercise of the powers of the 1st Defendant in the letters of 8th January 2008 and 16th February 2009 does not constitute abuse of the powers conferred by Section 150(1) of the 1999 Constitution and do not undermine and/or subvert the administration of justice, the rule of law and independence, authority and integrity of the judiciary established under Section 36(1) of the said Constitution which he is obliged to uphold and defend and, particularly, to breach of Section 149 of the said Constitution.
2. Whether, in the circumstances of the said letters aforesaid, the 1st Defendant is a fit and proper person to hold office as the 1st Defendant in conformity with Section 149 of the 1999 Constitution.

In the event that the questions were answered in his favour, he sought the following declarations:

1. That the 2nd Defendant undermined and/or subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary in the letters of 8th January 2008 and 16th February 2009 written by him in the capacity of the 1st Defendant
2. That the 2nd Defendant is not a competent, fit and proper person to hold and/or continue to hold office as the 1st Defendant having regards to the Oaths of Allegiance and Office.
3. N100m damages against the Defendants jointly and severally.
4. Perpetual injunction restraining the 2nd Defendant from further and/or continued occupation of the office of the 1st Defendant and/or the discharge of the functions of the said office.

The Originating Summons was supported by an 18-paragraph affidavit and exhibits marked A-F, along with a written address. An application by the defendants for extension of time to file their Memorandum of Appearance was granted by the Court. Consequently, a Conditional Memorandum of Appearance was filed on behalf of both defendants by one Nene C.A. Akpan (Mrs) of the Federal Ministry of Justice, South-South Zone, Port-Harcourt. Between the filing of the Memorandum of Conditional Appearance on 3rd December 2009 and 31st March 2010, the said Mrs. Akpan represented both defendants in Court and sought a number of adjournments at their instance. On 31/3/2010, she informed the Court of her intention to withdraw her appearance for the appellant (2nd defendant) in his personal capacity, having filed a written address the previous day on behalf of the 1st defendant alone. She was ordered to comply with the relevant rules of Court by filing a formal application and serving the parties, This was never done.

On 1/6/2010, the learned trial Judge entered judgment in favour of the plaintiff/1st respondent and made the declarations and orders sought in his favour. The appellant was dissatisfied with the decision and filed an appeal at the Court below. In a considered judgment delivered on 3rd September, 2015, the lower Court affirmed the judgment. The appellant is still dissatisfied and has further appealed to this Court vide his amended Notice of Appeal filed on 14/4/2016 but deemed filed on 27/5/2019. It contains 9 grounds of appeal.

At the hearing of the appeal on 20th September, 2021, OKON N. EFUT, SAN adopted and relied on the Appellant’s brief filed on 6/1/2017 and deemed filed on 27/5/2019, in urging the Court to allow the appeal. UWEMDIMO NWOKO, SAN, adopted and relied on the 1st Respondent’s brief filed on 1/8/2018 but deemed filed on 27/5/2019, in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled 5 issues for determination thus:

(1) Whether the learned Justices of the Court of Appeal were right to hold that the appellant was granted fair hearing and thereby affirming the judgment of the trial Court, when the entire proceedings of the trial Court was tainted and vitiated by the non-service of the Originating Summons and subsequent hearing notices on the appellant, (Distilled from Grounds 1 and 2).

(2) Whether the learned Justices of the Court of Appeal were right to affirm the trial Court’s order granting reliefs not claimed by the Plaintiff/1st Respondent against the Appellant (Distilled from Grounds 3 and 9).