Hon. Efe Godfrey Ofobruku V. Democratic Peoples Party & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the Federal High Court, sitting at Warri, Delta State, Coram Judice: Hon. Justice M. Shitu Abubakar, J., in Suit No. FHC/WR/CS/102/2013 delivered on 27th May, 2014.

The facts leading to the appeal as can be gleaned from the cold printed records are as follows:

The Appellant on record, who was the 1st Defendant at the Lower Court is a member of the Delta State House of Assembly representing Uvwie State Constituency. He was elected on the platform of the Democratic Peoples Party, the 1st Respondent herein, which was the Plaintiff at the Lower Court.

At the proceedings of the Delta State House of Assembly on 6th March 2012, the fact of the Appellant having decamped from the Democratic Peoples Party to the Peoples Democratic Party was announced on the floor of the House of Assembly. Subsequently, the 1st Respondent filed an Originating Summons at the Lower Court for the determination of the following question:

“Whether or not the 1st Defendant herein has not LOST HIS LEGISLATIVE SEAT IN THE DELTA STATE HOUSE OF ASSEMBLY under and by virtue of the provisions of Section 109 of the Constitution of the Federal Republic of Nigeria 1999 as a result of the fact that the Record of Proceedings of that State House of Assembly (Hansard) for Tuesday 6th March, 2012 established beyond doubt that the 1st Defendant decamped from the Political Party on whose platform he was elected i.e. the Democratic Peoples Party (D.P.P.) to another political party (the Peoples Democratic Party (P.D.P) on whose platform he was not elected.”

Upon the determination of this question, the following reliefs were sought:

“1. A declaration that the 1st Defendant Efe Godfrey Ofobruku elected to the Delta State House of Assembly to represent Uvwie State Constituency lost his seat in the House (Delta State House of Assembly) on Tuesday 6th March, 2012 having decamped from the Political Party under whose platform he was elected to another political party contrary to Section 109 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

2. A declaration that the legislative seat of the Uvwie State House of Assembly representative is now vacant, Efe Godfrey Ofobruku having lost the right to sit therein under and by virtue of the provision of Section 109 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
3. An order that fresh election be conducted by the 2nd Defendant to fill the vacant seat of the member representing Uvwie State Constituency of the Delta State House of Assembly for the un-expired term of the 1st Defendant.
4. Any other order or orders or further or other order or orders as this Honourable Court may make, having regard to the circumstances and justice of this case.”

The Appellant could not see his way clear on the competence of the action filed by the 1st Respondent, he filed a preliminary objection seeking for an order striking out and/or dismissing the suit on the following grounds:

“i. This Honourable Court lacks jurisdiction to enter and determine this suit.

ii. Condition(s) precedent to the filing of this Suit have not been complied with.

iii. The Suit is not properly constituted as all parties who are necessary for the effective and effectual determination of this Suit have not been joined in this Suit.

iv. The Plaintiff has no locus standi to initiate this suit.”

It is the Ruling of the Lower Court dismissing the said preliminary objection that has necessitated this appeal. The Ruling is at pages 162-180 of the Records while the Notice of Appeal which was filed on 9th June, 2014 is at pages 181-184 of the Records. The Records of Appeal were transmitted to this court on 24th June, 2014. Thereafter the parties filed and exchanged briefs of argument.