Delta State House Of Assembly & Anor V. Democratic Peoples Party & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, delivered by Hon. Justice Olatoregun-Ishola J. on 1/3/2013. The facts which led to this appeal are as follows:

By an originating summons dated and filed on 1st November, 2012, the 1st and 2nd respondents (as plaintiffs at the lower court) commenced an action seeking a determination of the following questions:

1. Whether under S.109(1), (e) and (2) of the Constitution of the Federal Republic of Nigeria 1999, as amended, the 2nd defendant is under an obligation to declare the seat for Ukwuani Constituency of the 1st defendant vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party.
2. Whether the 3rd defendant, by defecting to the Peoples Democratic Party from Democratic Peoples Party, has not lost his seat in the Delta State House of Assembly, in the light of S.109 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Upon these two questions the Respondents sought from the court four (4) reliefs as follows:

1. A declaration that the seat for Ukwani Constituency of the Delta State House of Assembly has become vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party on the floor of the 2nd defendant on Thursday the 20th day of September, 2012.
2. An order compelling the Speaker, Delta State House of Assembly to declare the seat for Ukwani Constituency of the Delta State House of Assembly vacant.
3. An order of perpetual injunction restraining the 3rd defendant from further parading himself as a member of the Delta State House of Assembly Elections on the basis of the House of Assembly Elections held in April, 2011.
4. An order directing the 4th defendant to immediately commence the process of conducting a fresh election for Ukwani Constituency of the Delta State House of Assembly.

Parties filed supporting affidavit and counter-affidavit. Written addresses were also filed and after hearing argument from counsel, the trial court granted all the reliefs sought by the originating summons. Dissatisfied with that decision, the 1st and 2nd defendants appealed to this Court. On 10/2/2014 when this appeal was heard, a sister appeal No. CA/B/166/2013 – INEC v. DPP & Ors was also heard by this court.

One of the issues for determination in that appeal is whether the whole judgment is not a nullity by virtue of the lack of fair hearing due to non-service of the Appellant at the lower court. This court resolved that the whole judgment is a nullity and set the said judgment aside.

However since this is the penultimate court, and in the event that we are found to be wrong in respect of the conclusions in respect of CA/B/166/2013, being obliged to consider the issues for determination in this appeal, I will proceed to do so.

The appellants filed a notice of appeal on 21/3/13. The appellant’s brief dated 28/5/2013 was filed on 30/5/2013. The 1st Respondent’s brief dated 4/2/13 was filed on 5/9/13. The 2nd respondent filed his brief of argument on 30/7/13. The 3rd respondent filed brief on 1/7/13, while the 4th respondent’s brief dated 28/6/13 was filed on 1/7/13.

At the hearing of the appeal, learned counsel for the appellant, Mr. Erhahon urged the court to discountenance the 2nd respondent’s brief as he is merely the chairman of a local chapter who has been replaced by the National representative of the party.

Mr. Sarwuan for the 1st respondent conceded the appeal. Mr. Ndugbu for the 2nd respondent insisted that he wanted to withdraw the preliminary objection to the appeal and urged the court to strike out the preliminary objection but to dismiss the appeal.

On the other hand, the 3rd and 4th respondents conceded the appeal through M. A. Abubakar and Ahmed Raji SAN respectively of counsel. In the circumstances, only the 2nd Respondent is opposing the judgment of the trial court as the other respondents conceded the appeal. Therefore, I will consider only the briefs filed by the appellant and the 2nd respondent in the determination of this appeal.

The appellant identified 2 issues for determination which were adopted by the Respondent’s counsel. I also adopt them as mine. They are set out below:

(1) Having regard to the totality of this case, the state of affidavit evidence juxtaposed with the proviso to S.109(1) 9(g) of the 1999 Constitution (as amended), whether the judgment of the lower court is not perverse and wrong in law.

(2) Whether the lower court was not in grave error to have held that the public documents relied upon by the plaintiffs did not require certification.