Barrister Orker Jev & Anor V. Sekav Dzua Iyortyom & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Federal High Court sitting in Makurdi, Benue State delivered on the 21st of March 2011. The Federal High court (herein described as the court below) in its judgment resolved the 3 questions raised for determination by the 1st respondent who was then the plaintiff in his favour, when the learned trial judge held as follows:

“1. That I declared that the 2nd defendant has breached Article 21.3, b, of the Constitution of the 2nd defendant in that the 2nd defendant has forwarded the name of the 1st defendant as candidate of the 2nd defendant for the April 2011 general elections for the House of Representatives to the 3rd defendant whereas, the plaintiff won the primaries for the said office as conducted by the 2nd defendant.

2. That I declared that the forwarding of the name for 1st defendant to 3rd defendant by the 2nd defendant as the candidate for the House of Representative for Buruku Federal Constituency for the forthcoming General election and the corresponding Act 3rd defendant by accepting, listing and publishing the 1st defendant as the 2nd defendant’s candidate for the Federal House of Representative Buruku Federal Constituency is illegal, unconstitutional null and void and of no effect.
3. That I hereby order perpetual injunction restraining 1st defendant from parading himself as the 2nd defendant’s candidate for the Federal House of Representative Buruku Federal Constituency in respect of the forthcoming election into the Federal House of Representative.
4. That I hereby order perpetual injunction restraining the 2nd and 3rd defendants from recognizing and dealing with the 1st defendant as the 2nd defendant’s candidate for the House of Representative Buruku Federal Constituency in respect of the forthcoming election into the Federal House of Representative.
5. That I hereby direct the 2nd and 3rd defendants to take all steps, actions including listing the name of the plaintiff as the 2nd defendant’s candidate for the House of Representative Buruku Federal Constituency in respect of the forthcoming elections into the Federal House of Representative and to allow the plaintiff contest the election into the House of Representative Buruku Federal constituency in the forthcoming General elections on the platform of 2nd defendant.
6. That consequently the Certificate of Return is hereby set aside; I direct that it be issued to plaintiff forthwith.”

The appellants were dissatisfied with the above decision and caused two Notices of Appeal to be filed. One was filed on the 22rd March, 2011 and another filed on 30th March, 2011. The appellant in his brief of argument relied on the Notice of appeal filed on 30th March 2011.

The facts that culminated to the present appeal as ascertained from the record of appeal are as follows: On the 12th of January, 2011, the 2nd appellant, Action Congress of Nigeria (ACN) conducted their party primaries for nominations into the elective offices of the House of Representatives, senate, State Assembles and Governorship. The 1st appellant and 1st respondent were amongst the candidates that contested the primaries for the party flag bearer for the House of Representatives seat for Buruku Federal Constituency.

The 1st appellant was declared as the winner of the election by the 2nd appellant and issued a certificate of return by the 2nd appellant.

Subsequently the 2nd appellant submitted the name of the 1st appellant as her candidate for the said election for Buruku Federal Constituency in the list of nominated and sponsored candidates sent to 2nd respondent, the Independent National Electoral Commission (INEC). The 1st respondent, contending he won the primaries took out an Originating summons filed in the Federal High Court challenging the nomination of the 1st appellant in relation to provisions in the Electoral Act and the party constitution and the submission of his name to the 2nd respondent.

The court below pursuant to a motion exparte abridged the time for parties to file processes, heard the parties in the matter and delivered its decision. This decision the appellants felt dissatisfied with hence the present appeal.

At the hearing of the appeal on 02/02/2012 the learned counsel for the appellant S. A. Orkumah adopted the appellants brief filed on 02/12/2011 and reply brief. He urged the court to allow the appeal.

Learned counsel for the 1st respondent E.C. Teeve adopted 1st respondent brief filed on 03/01/2012 as their argument in the appeal. He urged the court to strike out the Notice of Appeal abandoned by the appellant and dismiss the appeal.

Learned counsel for the 2nd respondent Miss N. D. Ter adopted the 2nd respondent brief filed on 28th December, 2011. He urged the court to dismiss the appeal. The 3rd respondent appeared in person did not file a brief.

It is pertinent at this stage to identify first the Notice of appeal the appellant is relying on to prosecute the appeal. The reason is obvious it is the notice of appeal that vest competence on this court to hear the appeal. The appellants in their brief of arguments in paragraph 1.03 indicated they have dropped the notice of appeal filed on 22nd March, 2011. Ineffect they will rely on the second notice of appeal. Consequently the Notice of Appeal filed 22nd March, 2011 is deemed abandoned and is hereby struck out. The appellants in their brief distilled 3 Issues for determination from the 6 grounds in the Notice of Appeal filed on 30th March, 2011. The issues read thus:

“(1) whether the lower court possessed the requisite jurisdiction to:-

a) abridge time for filing the defence of the appellants without affording them a hearing or an opportunity to be heard contrary to section 36(1) of the amended 1999 constitution and in the face of order 12, Rule 35(15) of the Federal High Court (Civil Procedure) Rules 2009 and non-application for the order by any of the parties.