Ezenwo Nyesom Wike & Anor V. Samuel Rogers Ichenwo & Anor (1999)

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JAMES OGENYI OGEBE, J.C.A.

By a writ of summons, dated 6th day of May, 1999 and filed on the same date, the Respondent’ as Plaintiff, claimed in his particulars of claim as follows before the Federal High Court, holden at Port Harcourt:

“(a) A declaration that the Plaintiff’s the duly elected chairman of the Obio/Akpor local Government Area of Rivers State by reason of the election on 5th December, 1998 and which said election was confirmed by a unanimous decision of the Court of Appeal in Appeal No. CA/PH/EP/66/99 delivered on 17th March, 1999.

(b) Against both 1st and 2nd Defendants, an order that no bye-election of whatever type should hold in the Obio/Akpo, Local Government Council of Rivers State until the expiration of the tenure of the plaintiff or by operation of law

(c) Against the 2nd and 3rd Defendants an Order that the 2nd Defendant.

Ezenwo Nyesom Wike, should not parade himself as the candidate of the P.D.P. (3rd Defendant) as the Plaintiff (Rogers Ichenwo) was properly cleared and also won the said election.

(d) A perpetual injunction restraining the 3rd Defendant, (the P.D.P.) from sponsoring either the 2nd Defendant or any other person as candidate for the Obio/Akpor Local Government Council Chairman, as the Plaintiff was duly nominated and won the said election as Chairman of Obio/Akpor Local Government Council.”

On the 12th day of May, 1999 the 2nd and 3rd appellants filed a motion on notice challenging the jurisdiction of the Federal High Court on the ground that the subject matter of the claim was outside the jurisdiction of the Federal High Court as it related to election of a Local Government Chairman. The Federal High Court heard arguments on the motion from both sides and held that the motion was premature and it accordingly struck it out.

The substance of the ruling was that such an application could only be properly entertained when the parties had exchanged pleadings.

Dissatisfied with the decision, the appellant appealed to this court on three grounds of appeal. In accordance with the rules of court, the appellants formulated 2 issues for determination as follows:

“(1) Whether it was premature to determine the issue of jurisdiction in the circumstances of the present case, if not, whether the Federal High Court has jurisdiction to entertain the suit subject matter of this Appeal.(Original Ground I and the only Additional Ground of Appeal which is Ground 3).

(2) Whether the learned trial judge was right in the face of the decision of the decision of the Court of appeal in CA/PH/EP/65/99 Wike v. Ichenwo & Others, Exhibit PD1 before him to assume jurisdiction to entertain the suit, subject matter of this Appeal. (Ground 2 – Original Grounds of Appeal)” I must say straight away that the 2nd issue formulated by the appellant does not arise from a proper ground of appeal. This is because the ruling of the trial judge was completely silent on the judgment of the Court of Appeal No.CA/PH/EP/65/99 – Wike vs. Ichenwo & Ors. It follows that as the trial judge made no Pronouncement on the status of the judgment, a ground of appeal cannot emanate from it.

As was pointed out by Onu, JSC in the case of Ogunbinye v. Ishiola (1996) 6 NWLR (PT.452) 12 at page 22, a ground of appeal is not a proper ground if the issue from which it is predicated was never part of the decision of the lower Court. Consequently, I strike out the second issue.

The 1st respondent also filed a brief of argument and formulated one issue for determination as follows: