Dr Yusuf Nagogo V. Congress For Progressive Change (C.P.C.) & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA J.C.A (Delivering the Leading Judgment)

This appeal arose from the judgment of the Federal High Court, Lafia, in Nasarawa State, (herein referred to as the trial court) delivered on 28/06/2011, wherein the trial court found in favour of the two plaintiffs and against the two defendants.

The 1st and 2nd plaintiffs (herein referred to as the 1st and 2nd respondents) instituted action at the Federal High Court Nasarawa State, sitting at Lafia against 1st and 2nd defendants (herein referred to as 3rd respondent and appellant respectively). The action basically challenged the actions of the 3rd respondent (INEC) as they related to the candidature of the 2nd respondent who was the duly nominated and sponsored candidate of the 1st respondent for the Nasarawa North senatorial Election for the April, 2011 elections.

Being dissatisfied with the actions of the 3rd respondent, the 1st and 2nd respondents commenced this action by an originating summon filed on 01/04/2011 challenging the actions of the 3rd respondent in the said Federal High Court (herein referred to the trial court. Later on, with the leave of the trial court the 1st and 2nd respondents filed an amended originating summons and sought the followings declarations and reliefs:-

1.”A DECLARATION that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law.

2. A DECLARATION that the 1st defendant has no vires or statutory power to reject the name of any candidate sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election.
3. A DECLARATION that the 1st defendant has no statutory power to recognize or accept as candidate the name of any person not submitted or sponsored by his political party.
4. A DECLARATION that the 2nd plaintiff having won the primaries of the 1st plaintiff pursuant to which his name has been submitted to the 1st defendant as the nominated and sponsored candidate of the 1st plaintiff for the Nasarawa North senatorial District in the National Assembly Election in the April, 2011 general election.
5. A DECLARATION that under the provisions of the Electoral Act 2011, the only way the 1st defendant can change, reject, substitute a duly sponsored/nominated candidate of a political party is through a court order.
6. AN ORDER of the Honourable court compelling/Directing the 1st Defendant to recognize and accept the 2nd plaintiffs as the (sic) for the Nasarawa North Senatorial District in the National Assembly Election in the April, 2011 general election.
7. AN ORDER of this Honourable court that the 2nd Defendant having lost in the primary election of the 1st plaintiff conducted on 15th January, 2011 and not having been sponsored by the 1st plaintiff to be its candidate in the April, 2011 general election into the Nasarawa North Senatorial District in the National Assembly Election in the April, 2011 general election.
8. AN ORDER of this Honourable court that the sponsorship/nomination of the 2nd plaintiff by the 1st having been done in accordance with the law cannot be invalidated in law.
9. AN ORDER of this Honourable Court declaring the 2nd plaintiffs as the sponsored candidate of the 1st Plaintiff for Nasarawa North senatorial District of Nasarawa State in the April, 2011 general elections.
10. AN ORDER of perpetual injunction restraining the 1st defendant, its agents, servants or privies from recognizing the 2nd defendant as the sponsored candidate of the 1st plaintiff for Nasarawa North Senatorial District for April, 2011 general elections”

The amended originating summons was supported by a 47 paragraphed affidavit with fifteen attachments marked as exhibits. A, B, C, D, E, F, G, GI, H, K, L, M, N, O. See pages 528-535 of volume 1 of the records. The appellant filed his counter affidavits to oppose the originating summons. The appellant’s counter-affidavit is of 28 paragraphs with eight attachments marked as exhibits A-H as shown on pages 739-742 of volume 11 of the records. The 3rd respondent did not file any counter affidavit but rather only filed a written address which is on pages 838 – 841 of volume 11 of the records.

On receipt of the appellants counter affidavit the 1st and 2nd respondents filed a seven paragraphed further affidavit to which 3 attachments, were annexed and marked as exhibits p, q, and r. The trial court on 28/06/2011 after painstakingly reviewed the issues involved and the evidence (documentary) gave its judgment in favour of the 1st and 2nd respondents and granted all the prayers/reliefs contained in the body of the amended originating summons. See pages 851 – 887 of volume 11 of the records.

Dissatisfied with the said judgment, the appellant appealed to this court via his Notice and Grounds of Appeal filed on 29/06/2011 which is on pages 893 – 899 of volume 11 of the records. The notice and grounds of appeal contains seven (7) grounds of appeal with their respective particulars, except ground seven (7) which is a general one.

In accordance with the rules of this court, both parties to this appeal filed and exchanged their respective briefs of arguments. The appellant’s brief of argument was filed on 29/09/2011 and on receipt of the 1st, 2nd and 3rd respondents’ brief of argument filed a reply brief of argument to the 1st and 2nd respondents’ brief of argument on 18/10/2011.

The 1st and 2nd respondents’ brief was filed on 11/10/2011 while the 3rd respondent’s brief was filed on 12/10/2011.

In his brief, the appellant formulated two issues for determination as follows:-

1. Whether an originating summons procedure is the proper procedure to adopt in the present case in view of the conflicting and hostile positions of the parties (grounds 6).
2. Whether in view of the hostile and conflicting position of the parties the learned trial judge had jurisdiction to entertain the originating summons (ground 1).

The appellant formulated no issues from grounds 2, 3 -5 and 7 and he admitted in his brief that he abandoned these grounds of appeal. These grounds are therefore struck out having been abandoned.

On their part, the 1st and 2nd respondents formulated only one issue which may be break as follows:

1. (a) whether the action is properly commenced by originating summons, and whether appellant can now challenge the mode of commencement of this action, and if so.

b. whether the action is not properly commenced by originating summons – (Ground 6).