Hon. Emmanuel David Ombugadu V. Congress For Progressive Change (Cpc) & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM. J.C.A: (Delivering the Leading Judgment)

This is an Appeal against the judgment of the Federal High Court holden at Lafia, dated 15th July, 2011- granting the 1st and 2nd Respondents’ claims; that the 2nd Respondent was the sponsored candidate of the 1st Respondent for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State and as such should be member representing the 1st Respondent in the House of Representatives since the 1st Respondent (CPC) won the House of Representatives election conducted on 9th April, 2011. The Appellant being dissatisfied with the decision appealed to this Court.

On 11th January, 2011, the 1st Respondent conducted a primary election for the purpose of nominating her candidate for Akwanga/Wamba/Nasarawa Eggon Federal Constituency for the general election scheduled for April, 2011. The Appellant alleges that he emerged the winner in the said primary consequent upon which he was issued with a result sheet and subsequently with an INEC FORM CF001 on 14th January, 2011. This he filled and submitted.

By a rescheduled primary election held on 15th January, 2011 as claimed by the 1st and 2nd Respondents, the 2nd Respondent materialized as the party’s candidate for the April, 2011 general election.

The Appellant maintained that his name was forwarded to the 3rd Respondent before an unsuccessful subtle move by 1st Respondent to substitute his name with that of the 2nd Respondent upon the spurious claim that the party’s primary election of 11th January, 2011, was inconclusive. The 3rd Respondent however published the name of the Appellant on the website as the 1st Respondent’s candidate for the April election.

Offended by this, the 1st and 2nd Respondents took out an action at the Federal High Court Lafia, Nasarawa State against the Appellant by filing an Originating Summons on 1st April, 2011. See pages 3 – 159 volume L of the record. On 11th May, 2011 the lower Court granted the 1st and 2nd Respondents leave to amend their originating summons. See pages 523 – 524 of volume 1 of the record. The Appellant filed a counter affidavit in opposition to the affidavit in support of the amended Originating Summons and a written address dated 25th May, 2011. See pages 650 – 725 of the record. In furtherance, the Appellant filed a Notice of Preliminary Objection to the suit and a further counter affidavit in opposition. See pages 445 – 457 and 732 – 739 of the record respectively. The 3rd Respondent filed a written address in reaction to the Originating Summons. See pages 740 – 744 of the record.

Oral arguments were canvassed and the case heard on 10th June, 2011 with the Preliminary Objection taken first. See pages 745 – 749 of the record.

The lower Court on 18th July, 2011 delivered both its ruling on the Preliminary Objection and its judgment on the Originating Summons, howbeit, separately. While the ruling is contained in the supplementary record, the judgment is at pages 749 – 786 of the record.

The Appellant dissatisfied with the judgment of the lower Court filed a Notice of Appeal containing 5 Grounds of Appeal. On 7th December, 2011, this Court granted the Appellant leave to amend his Notice of Appeal which now contains 9 Grounds of Appeal.

Appellant’s brief settled by S.I. Ameh, SAN, J.S Okutepa, SAN and A.A Ibrahim Esq, filed on 8th December, 2011 but deemed properly filed and served on 13th December, 2011 distilled the 4 issues for the determination of this appeal. The 4 issues

“(1) Whether the learned trial judge was right in holding that there was no need for ordering parties to file pleadings inspite of irreconcilable affidavit evidence before the Court and if the case can be adequately determined by way of originating summons?

(2) Whether on a proper consideration and understanding of the case put forward by the Appellant and Respondent it was not a case of attempt to substitute the Appellant contrary to Section 33 of the Electoral Act. Grounds 2, 6, and 7

(3) Whether the trial judge was right in holding that the 2nd Respondent is the candidate of the party in law and making an order returning him as the winner of the election. Ground 3 – 9

(4) Whether the trial Court had jurisdiction to entertain and also make the consequential orders. Grounds 4 & 8”