Hon. Ifedayo Sunday Abegunde V. The Ondo State House Of Assembly & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

By an originating summons dated 25th January, 2012 and filed on the 26th January, 2012, the appellant as plaintiff commenced an action at the Federal High Court, Akure, wherein he sought for declaratory and injunctive reliefs against the Respondents. The reliefs appearing at pages 2-3 of the record are as follows: –

1. A declaration that under and by virtue of the proviso to Section 68(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the current imbroglio, division, crisis, factionalization, centrifugal tendencies, hurly-burly and the brouhaha bedeviling the Labour Party in Ondo State, the Plaintiff/Applicant is entitled to dump the party (Labour Party) for another party and, as such is on a tera firma to have dumped the Labour Party for the Action Congress of Nigeria.
2. A perpetual order of injunction restraining the Defendants from taking any steps whatsoever or howsoever described, about, concerning or pertaining to the defection of the plaintiff as Honourable member in the Federal House of Representatives, Akure North/South Federal Constituency from the Labour Party (LP) to the Action Congress of Nigeria (ACN).

The plaintiff’s/Appellant’s originating summons was supported by a six paragraph affidavit of one Funmilayo Oladejo, a Litigation Clerk in the Chambers of S. L. Akanmode & Co. The gist of the originating process is that the Plaintiff/Appellant is a Honourable member of the House of Representative representing Akure North/South Federal Constituency, elected on the platform of the Labour Party.

He alleged that as a result of internal crisis leading to the emergence of various factions within the party, he has no option than to abandon the party for Action Congress of Nigeria. He brought the suit seeking declaration and injunctive reliefs.

In response to the originating summons, the 1st – 3rd and 13th Respondents filed a counter-affidavit and written address urging the court to dismiss the Appellant’s originating summons of 25th January, 2012. While the 6th-8th and 10th Respondents filed Notices of Preliminary Objection challenging the jurisdiction of the court to entertain the action. The 1st – 3d Respondents also filed a counterclaim on 2nd March, 2012 against the Appellant and sought for the following reliefs: –

(i) A declaration that the 1st defendant to the counter-claim has automatically vacated his seat as a member of the House of Representatives having defected to another political party and having left the Labour Party which sponsored his election to the House of Representatives.

(ii) A Declaration that the 1st Defendant to the counter-claim immediately ceased to be a member of the House of Representatives upon defecting from the Labour Party which sponsored and provided him the platform to contest the seat of Akure North/South Federal Constituency at the House of Representatives for another Political Party.

(iii) An Order of court directing the 1st defendant to the counter-claim to vacate the House of Representatives seat of Akure North/South Federal Constituency forthwith.

(iv) An Order of court restraining 2nd Defendant, to the counter-claim, that is, the Speaker of the House of Representatives, or any other person acting in that office from further recognizing the 1st Defendant to the counterclaim as ‘a member of the House of Representatives representing Akure North/South Federal Constituency.

(v) An Order of court directing the Independent National Electoral Commission, (the 3rd Defendant to the counter-claim) to immediately conduct a bye-election to fill the vacant seat of Akure North/South Federal Constituency at the House of Representatives.

The trial court heard both the Appellant’s originating summons and 1st – 3rd Respondents’ counter-claim together on 30th May, 2012. In a considered Judgment delivered on the 30th day of May, 2012, His Lordship Okeke, J. entered Judgment in favour of the 1st – 3rd Respondents in terms of their counter-claim while the Appellant’s suit was dismissed.

Unhappy with the decision of the trial court, the Appellant lodged an appeal to this court vide his Notice of Appeal dated and filed 26th June, 2012 containing 10 (ten) grounds of appeal.

In compliance with the practice of this court, parties exchanged briefs of argument. Appellant’s brief of argument settled by Prof. Yemi Osinbajo (SAN) leading other counsel was dated 1st November, 2012 and filed 9th November, 2012 but deemed properly filed on 31st March, 2014. Appellant’s Reply on points of law to the 1st – 3rd Respondents’ Brief of Argument was dated 13th June, 2014 and filed same date. While appellant’s reply on points of taw to the 4th, 9th and 13th Respondents’ Brief dated 30h May, 2014 was filed on same date but deemed properly filed and served on 16th June, 2014. Appellant’s reply to the 6th, 8tn and10th Respondents’ Brief of argument dated 16th June, 2014 was filed same date. The 1st – 3rd Respondents’ brief of argument settled by F. S. Akinnibosun, Esq., Deputy Director, Civil Litigation, Ministry of Justice, Akure dated 14th June, 2014 was filed same date. While the 4th, 9th and 13th Respondents’ brief of argument settled by Olabode Olanipekun, Esq., was dated 28th April, 2014 and filed 30th April, 2014. The 5th and 7th Respondents’ brief of argument settled by Tolu Babaleye, Esq., was dated 6th June, 2014 and filed on 9th June, 2014. Last but not the least, the 6th, 8th and 10th Respondents’ brief of argument settled by Itunnu Ehinmowo, Esq., was dated and filed 30th May, 2014 but deemed properly filed and served on 16th June, 2014.

At the hearing of the appeal on 16th June, 2014 all counsel adopted their respective briefs of argument with the exception of 12th Respondents’ counsel (Mrs.) Nwokeocha who did not file one. By our record, 11th Respondent was duly served with hearing notice but he neither responded by filing brief of argument nor appeared in court.