Chief Adebisi Adegbuyi V. Action Congress Of Nigeria (Acn) & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Ajumogobia J. of the Federal High Court, Abeokuta, delivered on the 1st day of April, 2011.

The appellant commenced this suit by originating summons dated 8th March, 2011, before the Federal High Court Abeokuta and sought for the following reliefs:-

1. A DECLARATION that the plaintiff, by virtue of being the only senatorial aspirant from Ogun East Senatorial District that duly paid for and obtained the Expression of Interest and Nomination Form in line with the 1st defendant’s Guidelines published in the Nation Newspaper of Wednesday 5 January 2011 (page 61) as at 12 noon of January 2011 for the primary election and Nomination Exercise, fixed for 10 January 2011, is rightfully entitled by the provisions of section 87 of the Electoral Act and Article 6(1)(A) and (B) of the aforestated Guidelines and Constitution of the 1st defendant to have his name forwarded to the 3rd defendant as the duly nominated senatorial candidate of the 1st defendant representing Ogun East Senatorial District.
2. A DECLARATION that the handpicking or imposition of the 2nd defendant by the 1st defendant as a Senatorial Candidate for Ogun East Senatorial District is null and void in that the 2nd defendant neither did pay for and obtain the Expression of Interest and Nomination Form in line with the 1st defendant’s Guidelines as at 12 noon 9th of January 2011 as per 1st defendant’s published guidelines in The Nation’s newspaper of Wednesday 5 January 2011 (page 61) nor participate in any primary election and nomination exercise on 10 January 2011 as none was held by the 1st defendant in breach of the compatible provisions of the Electoral Act and the Constitution and Guidelines of the 1st defendant.
3. AN ORDER setting aside the purported nomination of the 2nd defendant by the 1st defendant as the Senatorial Candidate for Ogun East Senatorial District on account of failure of the 1st defendant to conduct primary election or nomination exercise on 10 January, 2011 and the non-compliance of the 2nd defendant with the mandatory stipulations of the 1st defendant in breach of the compatible provisions of the Electoral Act and the Constitution and Guidelines of the 1st defendant.
4. AN ORDER directing the 3rd defendant to recognize and accept the plaintiff as the bona fide Senatorial Candidate for the Ogun East Senatorial District in that the plaintiff was the only senatorial aspirant that fulfilled and complied with the mandatory provisions of the Electoral Act, 2010 and the Constitution and Guidelines of the 1st defendant for the conduct of the primary election and nomination exercise and in seeking the office of senator of the aforesaid Senatorial District on the platform of the 1st defendant.
5. AN ORDER of perpetual injunction restraining the 3rd defendant from the Ogun East Senatorial District and placing the 2nd defendant’s name on the ballot for election purpose as the senatorial candidate of the 1st defendant in the general election fixed for 2nd April, 2011.

In the originating summons the appellant formulated the following questions for determination:

1. Whether the emergence of the 2nd defendant and or the forwarding of his name to the 3rd defendant as the Senatorial Candidate for the Ogun East Senatorial District without the conduct of primary election and the nomination exercise was not a violent breach of the provisions of section 87 of the Electoral Act, 2010 and the Articles 6(i)a and (b) and 21.3(a) and (b) of the Constitution and published Guidelines of the 1st defendant and which thus nullifies and voids the 2nd defendant’s purported nomination.
2. Whether by reason of the fact that the plaintiff qua Senatorial aspirant alone complied with the conditions stipulated in the published Guidelines of the 1st defendant as at 12 noon of 9th January, 2011, he (the plaintiff) was and still is, qualified to, and should, be recognized and accepted by the 3rd defendant as the bona fide Senatorial Candidate for the Ogun East Senatorial District on the platform of the 1st defendant.
3. Whether the handpicking or imposition of the 2nd defendant as the Senatorial candidate for the Ogun East Senatorial District on the platform of the 1st defendant and his presentation to the 3rd defendant as the nominated candidate for the senatorial election of 2nd April, 2011 should be set aside being in breach of statutory provisions and 1st defendant’s guidelines in the same respect.

In response the 2nd respondent filed two counter-affidavits to the originating summons dated 8th March, 2011 containing 11 & 16 paragraphs respectively and exhibits attached. (See pages 200-213 and 248-303 of the record). The 1st respondent on 1/4/11 also filed a 14 paragraph counter affidavit with exhibits attached. (See pages 298-299 of the record).

On 1st April, 2011 the trial court heard the originating summons and dismissed same by a bench ruling. Parties were however, ordered to file and exchange pleadings and the suit was adjourned to 4th May, 2011 for hearing.

Dissatisfied with the said ruling appellant lodged an appeal to this court vide his Notice of Appeal dated 14th April, 2011 containing 5 (five) Grounds of Appeal.

In accordance with the practice of this court parties filed and exchanged briefs of argument. Appellant’s brief settled by Taiwo Kupolati Esq. was dated 31/5/11 and filed on same date. 1st respondent’s brief settled by Yomi Siwoniku Esq, was dated 24/2/12 and filed on 27/2/12 but deemed properly filed on 29/2/12. The 2nd respondent’s brief settled by Razaq Okesiji Esq. was dated 24/1/12 and filed on same date but deemed properly filed on 29/2/72. When the appeal came up for hearing the briefs were adopted by respective counsel except the 3rd respondent who did not file any brief of argument.

Appellant distilled two issues for determination in this appeal as follows:-

1. Whether the trial court was not wrong in dismissing the originating summons and thus refusing the reliefs sought therein by the appellant, despite its specific finding on the core question to the effect that the evidence given by the 1st and 2nd respondents alluding to the fact that a primary election was held, did not sufficiently convince it that a primary election was held in accordance with section 87 of the Electoral Act 2010 (Grounds 1, 2 and 3 of the Notice of Appeal dated 14 April, 2011).
2. Whether it was not improper and wrong of the trial court to have subsequently and unilaterally altered its ruling decision in chambers, and added directive that parties should file pleadings, thereby making a directive which is utterly incongruous to its previous dismissal order, at a time when the court was functus officio (Grounds 4 and 5 of the Notice of Appeal.

1st respondent formulated two issues for determination. They are:-

1. Whether the trial court was not wrong in dismissing the originating summons and thus refusing the reliefs sought therein.
2. Whether it was not improper and wrong for the trial court after having dismissed the originating summons to later alter the decision in chambers.

The 2nd respondent equally formulated two issues for determination thus:-

(i) Whether the decision of the learned trial judge to dismiss, terminate and/or refuse the prayers sought in the originating summons dated 8th March, 2011 was wrong having regard to the circumstances of this case.

(ii) Whether the learned trial judge altered her ruling after same was delivered in open court.

The two issues formulated by the appellant are apt as such I will adopt same in determining this appeal. Since the issues formulated by the 1st and 2nd respondents are similar with the ones formulated by the appellant I will treat them together.