Declan Mbadiwe Emeluwa V. Barrister Donatus Onuigwe & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

On the 29th February, 2008, the 1st Respondent in this appeal instituted an action before the Federal High Court, sitting at Katsina by way of Originating Summons in suit No. FHC/KAT/CS/4/2008 claiming against the Appellant and the 2nd Respondent as follows:

“1. A DECLARATION of this Honourable Court that by the combined effect of section 106 of the Constitution of the Federal Republic of Nigeria 1999 and section 32(2) of the Electoral Act 2006, the 2nd Defendant is not qualified to contest for and/or participate in the bye-election soon to be conducted by the 1st Defendant into the House of Assembly of Imo State for the Oru West State Constituency, having failed to satisfy the mandatory requirements of the said sections.

2. A DECLARATION of this Honourable Court that by virtue of the decision of the Court of Appeal in CA/PH/EPT/453/2007 Onuigwe vs. Emelumba & Ors. the Plaintiff is entitled to be declared the winner of the bye-election ordered to be held only between the Plaintiff and the 2nd Defendant, the 2nd Defendant not being statutorily qualified.
3. A DECLARATION that by virtue of powers conferred on the 1st Defendant by section 117(1) of the Constitution of the Federal Republic of Nigeria 1999 and section 42(1) and (2) of the Electoral Act 2006, the Plaintiff is entitled to receive a Certificate of Return from the 1st Defendant.
4. AN ORDER of this Honourable Court directing the 1st defendant to issue a Declaration of Result Form and a Certificate of Return permanently to the Plaintiff to represent the Oru West State Constituency in the Imo State House of Assembly”.

In the said originating Summons three questions were posed by him for the determination of the lower Court thus:

” 1 . Whether by the combined effect of section 106 of the Constitution of the Federal Republic of Nigeria 1999 and section 32(2) of the Electoral Act 2006, the 2nd Defendant is qualified to contest for and/or participate in the bye-election soon to be conducted by the 1st Defendant into the House of Assembly of Imo State for the Oru West State Constituency, having failed to satisfy the mandatory requirements of the said sections.

2. Whether by virtue of the decision of the Court of Appeal in CA/PH/EPT/453/2007 Onuigwe vs. Emelumba & Ors. the Plaintiff is not entitled to be declared the winner of the bye-election into the Imo State House of Assembly to represent the Oru West State Constituency ordered to be held only between the Plaintiff and the 2nd Defendant, the 2nd Defendant not being statutorily qualified.
3. Whether by virtue of the powers conferred on the 1st Defendant by section 117(1) of the Constitution of the Federal Republic of Nigeria 1999 and section 42(1) and (2) of the Electoral Act 2006, the Plaintiff is not entitled to receive a Certificate of Return from the 1st Defendant”.

He predicated the reliefs sought upon the following grounds:

” 1 . The 1st Defendant is the body set up by the Constitution of the Federal Republic of Nigeria I999 and empowered by the said constitution and by the Electoral Act to conduct elections into a House of Assembly of a State of the Federation.

2. The Plaintiff is qualified to contest and was nominated to contest, and contested election for the seat to represent the Oru West State Constituency in the House of Assembly of Imo State held on 14th April 2007.
3. The 2nd Defendant was wrongly allowed to contest the said election not being qualified to contest, and was also wrongly returned.
4. That the Plaintiff presented a petition against his return before the Governorship and Legislative Houses Election Petitions Tribunal, and then lodged an appeal to the Court of Appeal, whereupon the Court of Appeal nullified the election and ordered for a bye-election to be conducted by the 1st Defendant between the Plaintiff and the 2nd Defendant.
5. The court of Appeal held that the issue of affidavit of personal particulars raised by the Plaintiff is a pre-election issue.

7 . The Plaintiff is the only one person whose name is validly nominated in respect of the forthcoming bye-election, and ought to be declared elected.

8. There has been a vacuum in representation of the said constituency.
9. Courts of law have a duty to interpret and enforce statutory Provisions”.

The affidavit evidence of ten paragraphs was deposed to by the 1st Respondent in support of the Originating Summons.

Following the Originating Summons, the 1st Respondent filed a Motion Exparte on 29/2/08 for an interim order of the Court directing the 1st Defendant to issue forwith to the Plaintiff the certificate of Return to represent oru west State constituency in the Imo State House of Assembly pending the hearing and determination of the Motion on Notice filed in the suit.

On the same 29/2/08, the said Originating Summons, Motion Exparte for an interim order and Motion Ex-parte for substituted service were filed at the lower Court, the said motions Ex-parte were moved by the 1st Respondent’s Counsel, as a result of which the Court made the following orders:

“Upon hearing learned Counsel, I hold as follows:

1 . In view of the novelty, urgency and obvious national importance of the entire proceedings in this suit, an accelerated hearing is hereby ordered to ensure that the subject is disposed of speedily in the interest of justice and in line with the principle of Rule of Law which is the stabilizing fulcrum upon which our current Presidential democratic experiment is hinged.

2. These proceedings as contained in this suit is a “pre-election matter” which automatically confers jurisdiction on the Federal High Court of Nigeria (and indeed any other Court of superior record of competent jurisdiction). I therefore hereby assume jurisdiction to entertain these proceedings pursuant to paragraph 2 of the Affidavit of urgency.
3. There is an urgent need to preserve the Res of these proceedings namely the representation of the Oru West State Constituency in the Imo State House of Assembly. Accordingly, the Resident Electoral Commissioner (REC) who is the agent of the 1st Defendant in Imo State of Nigeria is hereby ordered to put on hold, any arrangements for the Bye-Elections in the subject Constituency pending the hearing and determination of the Motion on Notice for Interlocutory Injunction.
4. On the contrary, also pending the hearing and determination of the said Motion on Notice, and in order to avoid a vacuum in the Res of these proceedings, the said Resident Electoral Commissioner Imo State is ordered to issue forthwith a Certificate of Return to the Plaintiff/Applicant, whilst, the Clerk of Imo State House of Assembly is to swear him in immediately thereafter.
5. Return date for the hearing and determination of both the Motion on Notice as well as the Originating Summons is the 11th of March, 2007.

Learned Counsel, also, moved a Motion Exparte for substituted service. He is praying for an Order granting leave for the service of all the processes in this suit on the 2nd Defendant by substituted Means Order as prayed: