Hon. Eseme Eyibo V. Mr. Dan Abia & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

The action culminating in this appeal was commenced by way of an originating motion at the Abuja Judicial Division of the Federal High Court. It was dated and filed on the 11th of February, 2011. The Appellant herein was the Applicant at the trial High Court. The Respondents herein were also the Respondents therein. However, while the 1st Respondent herein was the 3rd Respondent at the trial High Court, the 2nd and 3rd Respondents herein were therein the 1st and 2nd Respondents respectively. Against the Respondents, the Applicant/Appellant claimed the following four reliefs:-

“1. AN ORDER setting aside the primaries purportedly held at Uyo Township stadium on 28th and 29th January, 2011 at which Mr. Dan Abia was purportedly elected as the candidate of the Peoples Democratic Party for election to office as Member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency for the 2011 general elections.

2. AN ORDER setting aside the purported sponsorship of Mr. Dan Abia as the candidate of the Peoples Democratic Party for election to office as Member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency for the 2011 general elections.
3. AN ORDER of injunction restraining the 1st Defendant by itself, agents, servants, officers, privies and any person acting through or under them from accepting or otherwise acting on the purported nomination or sponsorship of Mr. Dan Abia by the 2nd Defendant to office as Member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency under the flag of the 2nd Defendant.
4. An order directing the 1st Respondent to insert the name of the Applicant as the PDP candidate for election to office as Member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency.
5. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances”.

The originating motion was supported by an affidavit of 33 paragraphs deposed to by the Appellant himself. On the 7th of April, 2011, the Applicant/Appellant filed a motion for an order of interlocutory injunction. On that same 7th of April, 2011, the Appellant filed an 18 paragraphs further affidavit in support of the originating motion. Again on the 13th of April, 2011 the Appellant through his counsel deposed to and filed a further affidavit of 8 paragraphs. And still on the 18th April, 2011 the Appellant deposed to and filed an additional further affidavit of 19 paragraphs. And on the 9th of May, 2011, in reaction to all these, the 1st Respondent as 3rd Respondent filed a Counter-Affidavit of 36 paragraphs with paragraphs 13 and 15 thereof running into many sub-paragraphs. Attached thereto were 51 Exhibits numbered DAN I – DAN 51.

After the addresses of counsel for the parties, the learned trial judge Abdu-Kafarati J. gave his judgment in which he allowed the claim. In the concluding paragraphs of the judgment, the trial Court reproduced paragraphs 6, 7, 8 and 11 of the further affidavit filed on the 7th of April, 2011 and concluded that the depositions therein were neither denied by the 2nd Respondent nor by the 3rd Respondent. Specifically, the court found and concluded at pages 465 -466 of the record as follows:

This piece of evidence was neither challenged by the 2nd Defendant nor the 3rd Defendant. Since the failure of the officers of the 2nd Defendant to arrive Eket for the primaries as communicated to the parties was not due to the fault of the plaintiff or the delegates present, the justice of the case demands that the plaintiff be returned as the candidate of the 2nd Defendant for Eket Federal Constituency. The 2nd Defendant having won the seat for Eket Federal Constituency, the plaintiff is to be returned as the winner of the said election and I so order. The plaintiff is to take the place of the 3rd Defendant. Prayers 1, 2 and 4 are granted as prayed.”

The 1st Respondent herein who was the 3rd Respondent was aggrieved by the decision and proceeded an appeal to the Court of Appeal. Therein the parties filed and exchanged their briefs of argument. In its judgment delivered on the 27th of January, 2012, the appeal was allowed. In the concluding part of the judgment, the court below had this to say:-

“On the whole, issues 1 and 2 of the Appellant as argued by the parties, are hereby resolved in favour of the Appellant, and against the 1st Respondent. The appeal on those issues is allowed. The judgment and the orders of the learned trial judge in the suit no FHC/ABJ/CS/177/2011 of 1st June, 2011 are hereby set aside. The justice of the matter, to borrow the phrase of the learned trial judge, demands that the said suit of the 1st Respondent be and it is hereby dismissed in its entirety, and that shall be the order of the trial Court. For avoidance of any doubt, and in case the 1st Respondent would have, on the authority of the orders in the suit no FHC/ABJ/CS/177/2011 made on 1st June, 2011, sneaked into the hallowed chambers of the House of Representatives purporting to represent Eket/Ibeno/Esit/Onna Federal Constituency, it is hereby ordered that the 1st Respondent shall forthwith vacate the seat for the Appellant”

The Applicant/Appellant was not satisfied with the judgment and has come on appeal to this Court by his Notice of Appeal filed on the 27th of January, 2012. With the leave of this Court, he filed an Amended Notice of Appeal on the 20th of March, 2012. The parties have through their counsel filed and exchanged their briefs of argument. The Appellant’s Brief was prepared by Chief Wole Olanipekun SAN and same was filed on the 28th March, 2012. He also filed Appellant’s Reply Brief on the 11th of April, 2012 and Appellant’s Reply Brief to the 3rd Respondent’s Brief on the 23rd of April, 2012. The 1st Respondent’s Brief was prepared by Lateef Fagbemi SAN. It was filed on the 3rd of April, 2012. Ahmed Raji prepared the 2nd Respondent’s Brief which was filed on the 30th of March, 2012. And the 3rd Respondent’s Brief was prepared by Chief Olusola Oke and same was filed on the 19th of April, 2012. On the 26th of April, 2012 when this appeal was heard these briefs were adopted as the arguments of the respective parties.

In the Appellant’s Brief, the following issues for determination were formulated:-

“(i) Having regard to the clear provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as well as the rule of natural justice, whether or not the entire judgment of the lower court is not vitiated by the unusual, harsh and disparaging pronouncements made by the lower court against the Appellant-Ground 8.

(ii) Considering the definitive findings made by the lower court at the preliminary stage of its judgment and before considering the Briefs of Argument filed by the parties, as well as their oral submissions, coupled with the wrong findings made and conclusions drawn at that stage, whether the judgment of the lower court is not bound to be set aside. Grounds 6 and 7.

(iii) Considering the fact that the lower court never found that the trial High Court was wrong in its interpretation and application of the clear and mandatory provisions of Section 87(4)(C)(i) of the Electoral Act and Article 17.2(d) of PDP Constitution, coupled with the fact that no Counter-Claim was presented before the trial High Court by the 1st Respondent to warrant the lower court exercising jurisdiction on such a counter-claim by way of appeal, whether the lower court was not in error and/or did not act in excess of jurisdiction by setting aside the judgment of the trial High Court. – Grounds 1, 2, 3, 4, 5 and 9.

(iv) Whether the lower court was not in grave error in its dismissal of the Preliminary Objections raised by the Appellant to grounds 1 and 6 of the 1st Respondent’s Notice of Appeal before it and also in its refusal to countenance and/or pronounce on the Preliminary Objection by the Appellant to the Brief of Argument of the 3rd Respondent. Grounds 10 and 11.”