Hon. Chris Azubuogu V. Hon. (Dr) Harry N. Oranezi & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Enugu Division, hereinafter referred to as the lower Court, in appeal No. CA/E/207/2015. The decision appealed against was delivered on 4th February, 2016. A brief summary of the facts that brought about the appeal is hereinafter supplied.

The 1st respondent herein, Hon Dr. Harry Oranezi, as Plaintiff at the Federal High Court sitting at Awka, hereinafter referred to as the trial Court, initiated suit No. FHC/AWK/CS/24/2015 against the appellant and five others as defendants seeking, on the basis of votes he avers in his writ to have scored in the 2nd respondent’s primary election conducted on the 7th December, 2014, declaratory and injunctive reliefs to the effect that he is the party’s candidate for the Nwewi North/South/Ekwusigo Federal House of Representatives Constituency in the Federal House of Representative election scheduled for 14th February, 2015. He is entitled to the reliefs, he further asserts, by virtue of Section 87(a) (c) of the Electoral Act 2010 (as amended) as well as 2nd

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respondent’s Electoral Guidelines for Primary Elections 2014.

In its ruling delivered on 19th March 2015, the trial Court sustained the objections of the defendants to the competence of the suit, declined jurisdiction and struck out 1st respondent’s suit.

Aggrieved, the 1st respondent appealed to the lower Court whereat, in upholding the appeal and setting aside the trial Court’s ruling, the suit was remitted to the trial Court for same to be heard and determined by a Judge other than M. L. Abubakar J.

Dissatisfied with the lower Court’s judgment, the appellant has appealed to this Court vide his notice containing six grounds filed on the 23rd February 2016.

At the hearing of the appeal, parties adopted and relied on their earlier filed and exchanged briefs as arguments for and against the appeal. 1st respondent’s preliminary objection filed on 28th February, 2017 to the competence of the appeal, in keeping with the practice in this Court, has been argued in his brief. Appellant’s response to the objection is as contained in his reply brief duly filed on 21/3/2017.

The objection shall be determined first in order to ensure

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that this Court has the necessary jurisdiction to proceed to hear and determine the appeal on its merits. To do otherwise, by proceeding without necessarily determining whether or not it indeed has the jurisdiction to, is for the Court to embark on a time wasting and fruitless venture. On the authorities, the Court’s eventual decision will be a nullity. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Usman Dan Fodio University v. Kraus Thompson Organisation Ltd (2001) 15 NWLR (Pt 736) 305 and Dr Kemdi & Anor v. Hon. Bethel Amadi & Anor (2013) LPELR-20747 (SC).

The 1st respondent challenges the competence of the 1st and 2nd grounds in the extant notice of appeal as well as the issues distilled from them. He argues that the two grounds which do not attack the ratio decidendi in the lower Court’s judgment and the issues purportedly formulated from them, being incompetent, should be discountenanced. Learned appellant’s counsel relies on Calabar East Corporation v. Ikot (1999) 14 NWLR (Pt 638) 225, Ikweki v. Ebete (2005) 11 NWLR (Pt 936) 397, Nsefik v. Muna (2014) 2 NWLR (Pt 1390) 75 and Amobi v. Nzegwu (2014) 2 NWLR (Pt 1302) 510 and insists that the

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