Chief Francis Uchenna Ugwu & Ors V. Peoples Democratic Party & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The Plaintiffs who claimed to have participated and won the primary elections conducted by the Peoples Democratic Party for the nomination of candidates in respect of the Enugu North Senatorial District, Igboeze North/Udenu Federal Constituency and the Udenu, Uzo Uwani and Nsukka East Constituencies of Enugu State respectively for the 2011 General Elections but whose names were not forwarded by the Party to the (INEC) instituted an action by Originating Summons at the Federal High Court Enugu in Suit No. FHC/EN/CS/47/2011 seeking declaratory reliefs that they were the people entitled to have their names submitted by the 1st defendant to the 2nd defendant as the candidates for the said elections.

The 3rd – 7th Defendants whose names the Party sent to the Independent National Electoral Commission to contest the election applied to be joined and the application was granted. They alleged that following series of complaints by aspirants on the conduct of the Enugu State House of Assembly and National Assembly primaries in Enugu North Senatorial District, the National Working Committee (NWC) of the Peoples Democratic Party ordered a re-run election for aspirants to membership of the state and National Assemblies in the Enugu North Senatorial District of the State. After the said re-run primaries, the 1st defendant submitted the names of the 3rd-7th defendants to the 2nd defendant as the duly nominated candidates of the PDP for the various elective positions in the forthcoming general elections.

The defendants filed Notices of preliminary objection and prayed the Court to strike out the suit for being non-justiciable and that the court lacked the jurisdiction to entertain same. The grounds for the applications were:-

1. That the fundamental issue for determination before the Court falls within the exclusive domestic domain of the political party – Peoples Democratic Party.
2. That the said issue is non – justiciable and as such this Court lacks the requisite jurisdiction to entertain same.

Learned counsel for the parties submitted written addresses.

On 16/5/2012, the learned trial Judge upheld the objection of the 1st defendant and dismissed the suit. The ruling came more than one year after the holding of the elections. The plaintiffs now appellants appealed to the Court of Appeal Enugu which dismissed the appeal on 8/3/2013. Not satisfied with the decisions of the two lower courts, they further appealed to this Court in the Notice of Appeal dated 18/3/2013 which contained 8 grounds from which the following four issues were distilled:-

1. Whether the recent decision of this Court in Senator Yakubu Garba Lado & Ors v. Congress for Progressive Change (2012) 48 NSCQR 501. (2011) 18 NWLR (part 1279) 689 is on all fours with the facts of this case and thus operated to wrest jurisdiction from the courts below with the matters in controversy (Grounds 1, 4 and 6)
2. Whether the interpretation placed on Orders 29 and 48 of the Federal High Court (Civil procedure) Rules 2009 by the court below led to a miscarriage of justice (Grounds 2 and 3)
3. Whether the decision of this Court in Senator Yakubu Garba Lado & Ors v. Congress for progressive Change & Ors is not a recipe for injustice having regard to section 87 (9) of the extant Electoral Act 2010 (Grounds 7 and 8)
4. Was the court below correct in the approach it took when it made material findings on issues which the trial court did not consider (Ground 5)

The 1st as well as 3rd – 7th respondents filed Notices of Preliminary objection. The 1st respondent urged this Court to strike out the appeal together with the suit as same have become an academic exercise. Apart from the objection the 1st respondent raised a lone issue for determination which is the same as the preliminary objection.

The preliminary objection of 3rd – 7th respondents is concerned with grounds 2, 6, 7 and 8 contained in the Notice of Appeal filed by the appellants. Apart from the preliminary objection, learned counsel for the 3rd – 7th respondents identified the following four issues for determination and they are:-

1. Whether the court below was wrong in upholding the decision of the trial court declining jurisdiction to entertain the appellants suit relying of (sic) the Supreme Court authority of Senator Yakubu Garba Lado & ors v. Congress for Progressive Change (2012) 48 NSCQR 501 (Grounds 1, 4, 6, 7 and 8).
2. Whether the court below was wrong in holding that the appellants did not challenge the merit of the trial court’s decision acceding to hear the preliminary objection at the stage it was heard (Ground 2)
3. Whether the court below was wrong in its interpretation of the provisions of Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 (Ground 3)
4. Whether the court below placed reliance of (sic) facts which the trial court made no finding (Ground 5).

1st Respondent’s preliminary Objection

The 1st respondent’s preliminary objection prayed this court for an order striking out this appeal and the suit from which the appeal arose as the same have become an academic exercise. One of the grounds in support of the application is that a favourable resolution of the appeal and the substantive suit will not confer any benefit on the appellants. Mr. Nnenna Nnaji who deposed to a 16 paragraph affidavit in support of the Notice stated as follows in paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the said affidavit:

“3. At the re – run primary election for the House of Assembly and National Assembly in Enugu North Senatorial District of Enugu State held on 20th January 2011, in which the appellants herein contested but lost, the 3rd – 7th respondents were elected candidates of the PDP for various elective positions for the April, 2011 general elections respectively, as follows, Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, Uzo Uwani State Constituency State and Nsukka East State Constituency Seat.

4. The said re-run primary election for the House of Assembly and National Assembly in Enugu North Senatorial District which held on 20th January 2011 was monitored by the 2nd Defendant/Respondent who thereafter issued a report on the conduct of the said re – run primary election.
5. The 1st Respondent/Objector herein submitted the names of the 3rd – 7th respondents as the duly elected candidates of the 1st respondent for the various elective positions for which they had been elected at the re-run primary election of 20/1/2011.
6. The Appellants/Respondents to this objection on 1st February, 2011 by an Original (sic) summons commenced the suit leading to the instant appeal at the Federal High Court Abuja (but later transferred to Enugu Division of the Court) claiming inter alia declarations that they, the Appellants/Respondents are the persons entitled exclusively to have their names submitted by the 1st respondent to the 2nd respondent as the candidates for purposes of contesting the April, 2011 general elections into the respective elective/political offices which they aspire to. They further claim (sic) an order of perpetual injunction restraining the 1st Respondent from submitting any other names other than their names as candidates of the 1st Respondent for the 2011 general elections, and also an order of perpetual injunction restraining the 2nd respondent from accepting the name of any person or persons in place of or in substitution for the appellants as the candidates for the April, 2011 general elections on the platform of the 1st respondent.
7. The trial court on 16th May, 2012 struck out the said suit on the ground that it lacked the jurisdiction to entertain the suit.
8. The 1st respondent did not at any time submit the names of the appellants to the 2nd respondent as the candidates of the party for the April, 2011 general election into the various elective/political offices which they aspire to.
9. I know as a fact that the 1st respondent can no longer submit the names of the appellants to the 2nd respondent as the Party’s candidate for election to the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, respectively for the April, 2011 general election as they aspire to in this suit.
10. Only the 3rd – 7th Respondents whose names were submitted by the 1st Respondent to and accepted by the 2nd respondent contested the April, 2011 general elections into the said offices for the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat Udenu Seat (sic) Constituency Seat, Uzo Uwani Constituency Seat, respectively as candidates of the 1st respondent and won. They were duly sworn in and have been in these elective offices since 2011.
11. The said 2011 general election to the offices for the Enugu North Senatorial Seat, Igbo Eze North/Udenu Federal Constituency Seat, Udenu State Constituency Seat, Uzo Uwani Constituency Seat and Nsukka East Constituency Seat was conducted and concluded in April, 2011, almost three years ago, all election petition arising therefrom have been taken and concluded within the time allowed by law.

In the reply to the preliminary objection, learned counsel for the appellants observed that no reference was made to the affidavit in support of the preliminary objection in the arguments of learned counsel to the 1st respondent. This is not true because in the opening paragraph 2.10 on page 2 lines 9 – 10 of the 1st respondent’s brief, learned counsel stated as follows;

“The facts relevant to the preliminary objection as contained partly in the Records of Appeal and the affidavit in support of the objection are…”

And to buttress the claim that there was a re – run of the primaries which was monitored by the 2nd respondent who issued a report, learned counsel referred to paragraphs 6, 26 – 21 of the 1st respondents counter – affidavit on pages 206 – 207 and 212 – 213 of the records.