Dr Alex Otti & Anor V. Dr Sampson Uchechukwu Ogah & Ors (2016)

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ABUBAKAR DATTI YAHAYA, J.C.A. 

 This is a Motion filed by the applicants, on the 15th of July, 2016 praying for-1. An Order granting the Appellants/Applicants leave to appeal as interested persons against the final judgment of the Federal High Court Abuja Division, delivered on 27th June, 2016 in suit No. FHC/ABJ/CS/71/2016/FHC/UM/CS/94/2015 – Dr. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS.2. An Order deeming the Notice of Appeal already filed on the 1th day of July, 2016 against the said Judgment as properly filed and served, the appropriate filing fees thereto having been paid.If €¢Reliefs 1 and 2 above are granted:3. An Order by way of departure from the rules permitting the Appellants/ Applicants to make use of and rely on the record of appeal already transmitted by the 2nd and 3rd Respondents to this Honorable Court in Appeal No. CA/A/390/2016.4. An Order granting an accelerated hearing of this appeal and also abridging the time for filing of briefs of arguments in this appeal.The grounds for the application are: -i. The Appellants/Applicants were not parties nor were they served with the originating and other processes which led to the judgment of the Federal High Court, Abuja delivered on 27th June, 2016 in Suit No. FHC/ABJ/CS/71/2016ii. By the judgment of the Federal High Court, Abuja Division delivered on 27thJune 2016 in Suit No. FHC/ABJ/CS/71/2016 (formerly FHC/UM/CS/94/2015), the Court below after rightly holding that the 3rd Respondent as the PDP candidate for the Abia State Governorship election held on 11 April 2015 was disqualified from contesting the said election made consequential orders to the effect that the 1st Respondent was the winner of the PDP primary election held on 8th December 2014 and thereby entitled to be returned as the winner of the Governorship election.

iii. The disqualification of the 3rd Respondent herein to contest the said Abia State Governorship election held on 11 April 2015 arose from the false information contained in the form CF001 submitted by the 2nd and 3rd Respondents to INECiv. The disqualification to contest the Abia State Governorship election under Section 31(6) of the Electoral Act 2010, (as amended) contemplates that the 2nd Respondent who sponsored the disqualified candidate, the 3rd Respondent, did not have any legitimate candidate in the Abia State Governorship election held on 11 April 2015.

v. The appellants/Applicants who were adjudged second in the Abia State Governorship election are desirous of appealing against the judgment of the lower court containing consequential orders that directly affects them.

vi. The Appellants/Applicants are entitled under Section 243(1)(a) of the 1999 Constitution (as Amended) to seek the leave of this Honourable Court to appeal as persons interested against the judgment o the lower court dated 27th June 2016.vii. The 2nd and 3rd Respondents have appealed against the said judgment of the lower court.viii. The Record of Appeal compiled by the 2nd and 3rd Respondents in Appeal No. CA/A/390/2016 have since been transmitted and entered into this Honourable Court.The application is supported by a 26 – paragraphed affidavit, a 10 – paragraphed affidavit of urgency, a further 8 – paragraphed Affidavit in support with an Exhibit marked Exhibit MAM 1 (proposed Notice and grounds of appeal and another 21 – paragraphed Further Affidavit in support of the application.The 1st, 2nd 3rd and 5th respondents in opposing the application, filed counter-affidavits. The 1st and 2nd respondents filed their respective courter-affidavits on the 22nd of July, 2016.

The 3rd respondent filed 10 – paragraphed counter-affidavit, on the 22nd of July 2016, also. The 5th respondent filed a 27 – paragraphed counter-affidavit. The 3rd respondent filed a further counter-affidavit on 1/8/16.The facts are that the 2nd respondent herein, (PDP) held its primary election, in order to nominate and sponsor a candidate, to stand election as a Governor of Abia State on the 8th of December, 2014. The third respondent emerged the winner at the primary election and was nominated by his party, the PDP. Thereafter, the election into the office of Governor, Abia State was held and he won. After series of litigations on Election Petition, the Supreme Court declared the third respondent as the duly elected Governor of Abia state. The 1st applicant herein, was the Petitioner leading to the Supreme Court case.

In the meantime, the first respondent herein, came second, in the PDP primary election above stated. He filed an action at the Federal High Court (the trial court), to challenge the nomination of the third respondent as the candidate of the second respondent, at the primary election as the plaintiff. The relevant declarations and Orders sought in the Amended Originating Summons, by the first respondent are:

-“{1)A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial primary election for Abia State conducted by the Peoples Democratic Party and her officers on the 8th day of December 2014 which the plaintiff, Dr. Okezie Ikpeazu (the 2nd Defendant) and others participated as aspirants.(2) A declaration that Dr. Okezie Ikpeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8/12/2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary Election conducted…….

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic Party Primary Election….. are wasted votes, null, void … Dr. Okezie Ikpeazu …… is not qualified to be nominated or participate in the said Primary Election.(4) An order declaring the plaintiff (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic party Primary Election for aspirants conducted by the Peoples Democratic Party on 8/12/14 …”(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast … it is the plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the gubernatorial election in Abia …” (Underscores for emphasis)On the 26th of July 2016, we ordered interested parties to file written addresses. The applicants filed their Written Address on the 28th of July 2016. The 1st respondent filed his Written Address on the 1/8/16. The 2nd respondent filed its Written Address on the 2/8/16. The 3rd respondent filed his written address on the 1/8/16. The 5th respondent filed his written address on the 1/8/16. The 4th respondent has not filed any address.In the applicants’ written address, two issues were identified for resolution. They are-1. Whether having regard to the continually vested right as participant and second highest vote winner at the election, held in April, 2015 into office of Governor of Abia State, the Appellants/applicants have disclosed arguable grievance to be granted leave to appeal as persons interested against the identified portion of the judgment of the trial court, on the grounds and for the reliefs set out in the Proposed Notice of Appeal (Exhibit MAM 1)2. Whether having regards to the circumstances of this case, this Honourable court ought not to exercise its discretion in favour of the grant of the other prayers endorsed on the motion paper.For the 1st respondent, one sole issue was identified. It is-1. Whether the applicants have disclosed by their Motion, any right or interest of theirs, affected by the Judgment of the Federal High Court in suit No. FHC/ABJ/CS/71/2016 Between Dr. Sampson Uchechukwu Ogah Vs. Dr. Okezie Victor Ikpeazu & Ors to warrant the grant of leave to appeal as persons interested by this Honourable Court against the said Judgment.The 2nd Respondent identified four issues, viz; -1. Whether this application as disclosed on the Motion Paper does not constitute an abuse of the process of the Court of Appeal and ought to be dismissed.2. Whether the Applicants are not barred from bringing this application by the doctrine of res judicata.3. Whether the Applicants reliefs are not statute-barred and ought to be dismissed.4. Whether the Applicants who are not members of the 2nd Respondent (PDP) have made out a case entitling them to the reliefs sought in this application having regard to the nature of the dispute the subject matter of the appeal.The 3rd respondent identified a single issue for determination, to be-Having regard to the entire facts and circumstances of this appeal, whether this Honourable Court would not dismiss the applicants’ Motion on Notice dated 14th July, 2016.The three issues identified by the 5th respondent are; –

A. Having regard to the facts of this case, do the applicants have sufficient interest in the subject matter of the Appeal to qualify them as persons interested in this appeal to merit the grant of the leave sought in this application?B. Whether the Applicants herein have the Locus Standi to sue in the subject matter leading to this Appeal i.e. Suit countering or challenging the outcome of the Gubernatorial Primary Election for the 2nd Respondent (PDP).C. Whether this Application by the Applicants herein is not an abuse of Court process in the circumstances of this case.In my view, the sole issue raised by the 3rd respondent is sufficient to resolve the issue but I re-couch it to read: -Having regard to the entire facts, the law and circumstances of this Appeal, whether this Honourable Court would not dismiss the Applicant’s Motion on Notice filed on the 15th of July 2016.

I have carefully studied all the processes filed by all the parties in this application, to enable me arrive at a just decision.As a preliminary point, although the 2nd respondent has made it a substantive issue, reference was made to the Suit Number and the parties in Exhibit A, the judgment of the Federal High Court (the trial Court) attached to this application and it was stated that this was different from the parties reflected in this Motion filed by the applicants, for leave to appeal. The applicants have been reflected as “Appellants” in the Motion for leave to appeal and that this is a fundamental vice bordering on abuse of the process of this Court. ADEH VS. PDP (2016) 7 NWLR (Pt. 1510) 153 at 173 – 174 and PDP VS. INEC (2012) 13 NWLR (Pt. 1317) 215 at 236- 233 were referred to.

I agree that the applicants have added their names as appellants in their Motion seeking leave to appeal, names that are not reflected in the Suit before the trial court. They have not been granted leave to appeal yet and they cannot reflect their names as appellants in the originating Motion. However, this has not misled the respondents on any way. It is one of those surplage mistakes made by counsel that are pardonable and which should not be visited in their clients. I waive whatever irregularity there is and hold that the process is complete and is not an abuse of the process of this Court.The applicants have submitted in the written address, that they have an interest in the judgment of the trial court dated the 27th of June 2016 as they have by their affidavits, demonstrated the nature of their legal interest and that they were not aware of the Suit until judgment was delivered. The proposed notice of appeal was referred to as showing the applicants’ grievances with the consequential orders made in the judgment, pursuant to section 31(5) of the Electoral Act 2010 as amended, for giving false information in the document submitted along with Form CF001 by the 2nd and 3rd respondents. Having obtained the second highest votes at the election, they aver that they have an interest which has been affected by the judgment, especially, the consequential orders. They predicate their application on section 243(1) of the 1999 Constitution as amended. The cases of FUNDUK ENGINEERING L TO. VS. MCARTHUR IN RE MADAKI (1990) 4 NWLR (Pt. 143) 266 at 267 and ICAN V. UNEGBU (2012) 2 NWLR (Pt. 1284) 216 at 233 were cited in support of their contention that “a person having an interest” is synonymous with a person aggrieved, one against whom a decision has been pronounced which has wrongfully affected his title to something.Learned senior counsel for the applicants placed reliance on the cases of LABOUR PARTY VS. INEC (2009) 6 NWLR (Pt. 1137) 315 and ISIAQ VS. SONIYI (2009) ALL FWLR (Pt. 498) 347 at 384, to submit that where a candidate has been adjudged as lacking qualification to contest an election, the election will be nullified and another fresh election ordered, without that candidate and his political party that sponsored him. But that if the votes of the disqualified candidate were wasted, then the candidate next to the disqualified candidate at that election (and not his co-aspirant at the primary election) will be entitled to be returned – ATAI VS. DANGANA (2012) VOL. 1 INEC LAW REPORT at page 523.

Since the judgment of the trial court has returned the 1st respondent as the winner of the election, the applicants have an interest which has been affected, they argued, especially as the 1st respondent did not take part in the election proper but the applicants had done so and had come second in the contest. Counsel argued also that since the PDP had no qualified candidate at the election, the law regards that it had no candidate at the election.Learned senior counsel for the applicants also submitted that the applicants were not aware of the pending suit until judgment was delivered. He argued that whether they were aware or not, since the judgment is in rem, failure to attempt to join it, is immaterial.

On the judgment of IKPEAZU VS. OTTI (2016) 8 NWLR (Pt. 1513) 38, counsel argued that it could not be a bar to this application, since the subject matters are different and unrelated. Whereas in the Supreme Court the case of IKPEAZU VS. OTTI the issue was who, between the two contending parties, scored the majority of lawful votes, here, the issue is who is supposed to step into the shoes of the disqualified PDP candidate – the 3rd respondent.