Chief Ameke Chriscato Ikechukwu V. Hon. Tony Nwoye & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 8th of April 2011, the 1st respondent herein as applicant in suit No.FHC/AWK/157/2011 obtained the leave of the Federal High Court at Awka, per P. F. Olayiwola J to apply for Judicial Review by way of mandamus, declaration and injunction. Pursuant to this leave, the 1st respondent on the 11th April 2011 filed a motion on notice applying for judicial review and praying for the following reliefs.

1. “A declaration of court that the respondent being a public body upon which a lot of constitutional and statutory responsibilities have been reposed especially in the matter of conducting a free and fair election in Nigeria in April 2011 must in doing so act dispassionately, independently and fairly without bias for or against any person(s) including the applicant.
2. A declaration of court that the respondent cannot be allowed to approbate and reprobate at the same time or to speak from both sides of the same mouth at the same time and is therefore bound by its declarations and statements especially as set out and or contained in its letter dated 10/2/2011 and cannot be allowed to resile from the same.
3. An order of mandamus or mandatory order of injunction of the court compelling the respondent forthwith to accord to the applicant all the rights, privileges and entitlements due to a candidate of the Peoples Democratic Party in the April 2011 general elections having won its primaries, been duly nominated by the party to fly its flag in the election to the Anambra East/West Federal Constituency and as a result of the order of the court in FHC/CS/AWK/5/2011.”

The motion was supported by an affidavit with documentary exhibits.

At the commencement of the action, the Independent Electoral Commission was the sole respondent. Subsequently the appellant herein was joined as a 2nd respondent. The 1st and 2nd respondents filed their counter-affidavits and filed motions raising objection to the jurisdiction of the trial court to entertain the suit and urging that the suit be dismissed or proceedings therein stayed for abuse of process. The objections were heard together with the substantive suit.

On the 13th July 2012, the trial court considered and dismissed the preliminary objections and entered judgment in favour of the 1st respondent granting an order of mandamus compelling the 2nd respondent herein to recognize the 1st respondent as the Peoples Democratic Party (PDP) candidate in the 26th April 2011 election into the Federal House of Representative seat for Anambra East/Anambra West, Federal Constituency.

This appeal No CA/E/300/2012 by the appellant is against the said judgment on the grounds contained in the notice of appeal dated and filed on 10th September 2012. The appellant and 1st respondent herein have filed, exchanged and adopted their briefs as their arguments in this appeal. The briefs are appellants brief, 1st respondents brief and appellants reply brief. The 2nd respondent did not file any brief in this appeal. The appellant in his brief raised the following issues for determination:

1. Whether or not the 1st respondent could apply for mandamus based on non-existing right?
2. Considering the way and manner the lower Court conducted the trial whether the appellant was denied fair hearing?
3. whether the suit was not an abuse of Court process?

Having regard to the arguments of the parties, whether the trial Court was in grave error in its failure to uphold the Appellant’s objection at the lower Court to its jurisdiction to entertain the suit?

Considering the subject matter, as well as the parties, whether:

A. Whether or not the 1st defendant could still institute another action, after same have been finally disposed of by the court of appeal?

B. The suit was statute barred. Ground 6.

C. The suit was caught up by the doctrine of res judicata? Distilled from ground 5 of the notice of appeal.

The 1st respondent raised a two pronged issue for determination as follows:-

“whether the learned trial judge had jurisdiction to entertain the suit and whether the Court was also justified in entering its judgment of 13/7/2012 in favour of the 1st respondent” Considering the grounds of appeal, the issues raised for determination in the briefs of the parties herein and the arguments of such issues, I will prefer to frame the issues for determination in this appeal as follows:

1. whether the trial court’s decision that it has the jurisdiction to entertain and determine suit No.FHC/AWK/157/2011 is correct.
2. whether the trial court was right when it refused to uphold the appellant’s objection at the trial nisi prius that the said suit No FHC/AWK/157/2011 is an abuse of the process of Court.
3. whether the appellant was denied fair hearing at any stage of the trial proceedings
4. whether the trial Court was right to have made the order of mandamus compelling the 1st respondent to recognize the 1st respondent as the Peoples Democratic Party candidate in the 2011 general election into the Federal House of Representative seat for Anambra East/Anambra West Federal Constituency.

I will start with issue No 1. The Learned Senior Advocate has argued that the trial Court lacked the jurisdiction to entertain and determine the claim before it on the grounds that: