Chief Dr. Okezie Ikpeazu V. Obasi Uba Ekeagbara & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A.(Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court, holden at Abuja (The trial court) Coram: Ademola, J. in suit No. FHC/ABJ/CS/1086/2014 delivered on 25/3/2015 in which the trial court dismissed the motion on notice of the appellant (qua 3rd defendant) seeking a transfer of the 1st and 2nd respondents’ matter to the Abia State High Court for want of jurisdiction.

At the trial court, the 1st and 2nd respondents took out an originating summons (which seems to have been amended) against the 3rd respondent, 4th respondent and appellant (as 1st, 2nd and 3rd defendants respectively). In the amended originating summons at pages 1-4 of the record of appeal, the 1st and 2nd respondents set out the following questions for determination.

“1. Whether the 3rd Defendant’s failure, neglect and/or refusal to pay his income tax promptly as and when due for the years 2011, 2012 and 2013 in compliance with the provisions of Section 24 (f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, does not disqualify him as a fit and proper person to contest the 2015 Abia State gubernatorial election the said defendant having falsely stated in his particulars of persons seeking election into office of governor (INEC FORM CF 001) and the accompanying documents therewith attached (tax clearance certificates and tax payment receipt) submitted to the 2nd defendant that he made the said tax payments as and when due.

2. Having regard to the clear unambiguous and sacrosanct provisions of Section 31(1) (2) (3) (5) (6) and (8) of the Electoral Act, Cap 15, Laws of the Federation of Nigeria, 2010 and INEC FORM C. F. 001 and the tax payment receipts and tax clearance certificates attached therewith submitted by the 1st and 3rd defendants to the 2nd defendant whether the 3rd defendant is not disqualified from contesting the Abia State governorship election for submitting to the 2nd defendant false information regarding 3rd defendant’s tax payment.”

In anticipation of favourable answers to the posers above, the 1st and 2nd respondents sought the following reliefs:

“1. A declaration that the 3rd defendant’s INEC FORM C.F.001 and the tax payment receipts and tax clearance certificate of the 3rd defendant attached therewith submitted to the 2nd defendant by 1st and 3rd defendants contain false information regarding 3rd defendant’s tax payment.

2. A declaration that having regard to the clear, unambiguous and sacrosanct provisions of Section 31(1) (2) (3) (5) (6) and (8) of the Electoral Act Cap.15 Laws of the Federation of Nigeria 2010 and INEC FORM CF 001 and the tax payment receipts and tax clearance certificate attached therewith submitted by the 1st and 3rd defendants to the 2nd defendant, the said 3rd defendant is disqualified from contesting the Abia State governorship election for submitting to the 2nd defendant false information regarding his tax payment.
3. An Order that the 3rd defendant having failed and/or refused to pay his income tax promptly as and when due for the years 2011, 2012 and 2013 and falsely stating in his INEC FORM C. F. 001 and the documents attached therewith that he paid the said tax as and when due is not a fit and proper person to contest the gubernatorial election of Abia State in the 2015 General Election.
4. An Order disqualifying the 3rd defendant from contesting the said 2015 Abia State gubernatorial election for submitting to the 2nd defendant in his INEC FORM C.F.001 and documents attached therewith false information concerning his tax payment contrary to clear, unambiguous and sacrosanct provisions of Section 31(5) of the Electoral Act as amended.
5. An order barring the 2nd defendant from accepting the 3rd defendant as a candidate to contest the Abia State 2015 gubernatorial election.
6. A declaration that the aspirant at the 1st defendant’s primary election of the 8th December, 2014 who polled the second highest number of votes cast at the said primary election is the rightful candidate of the 1st defendant for the Abia State 2015 Gubernatorial Election.
7. An order directing the 1st defendant to forward the name of the candidate at the 1st defendant’s Abia State gubernatorial primary election of the 8th December, 2014 who polled the second highest number of votes cast at the said primary election to the 2nd defendant as the rightful candidate of the 1st defendant for the Abia State 2015 gubernatorial election.
8. And for such further or other orders as the Honourable Court may deem fit/just to make in the circumstances of this case.”

The originating summons was supported by an 8 – paragraph affidavit deposed to by one Godwin Amaechi, Litigation secretary in the Law Firm of Messrs Excellex solicitors, counsel for the 1st and 2nd respondents. Several exhibits were attached to it. A written address was filed in support.

The appellant, as earlier stated, by way of motion on notice dated 17/3/15 and filed on 18/3/15 sought for a transfer of the case to the Abia State High Court on ground of lack of jurisdiction of the trial court. It is against the ruling of the trial court refusing the application that this appeal has been brought.

The appeal was initiated by a notice of appeal which was amended by order of court on 24/6/15. The amended notice of appeal bears two grounds of appeal. Out of the two grounds of appeal, the appellant in his brief of argument settled by Olajide Otaleye- Kumuyi, Esq; distilled one issue for the court’s determination of the appeal.

The Issue is

“Whether the Federal High Court under Section 31 (5) of the Electoral Act read together with Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 can exercise jurisdiction on the claims of the 1st and 2nd respondents in the originating summons”.

The 1st and 2nd respondents’ brief was settled by Max Ozoaka, Esq. It raises one issue for the determination of the appeal, viz;

“Whether the trial court was right in holding that the court had jurisdiction to entertain the claim of the plaintiffs/1st and 2nd respondents brought pursuant to Section 31 (5) of the Electoral Act 2010 (as amended) seeking to disqualify the appellant as claimed by the plaintiffs/1st and 2nd respondents and the subsequent refusal by the trial court to transfer the above suit to the High Court of Abia State of Nigeria.”

The 3rd and 4th respondents did not file any brief of argument.