Ikenna Amechi, Esq. & Anor. V. Mr. Egwuoyibo Okoye (2008)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

This is an appeal against the decision of the Federal High Court (hereinafter referred to as the trial court) Enugu Division, delivered on 27th April, 2007 in suit No. FHC/EN/CS/80/2007.

This case was commenced on 23/3/2007 in the trial court by one Mr. Emeka Festus Udoeme (the 1st plaintiff) against the INEC (1st defendant) on the originating summons in which he asked for the determination of 6 questions and claims 7 reliefs of the originating summons at pages 1 – 38 of the record of this appeal (herein refer to as the records). Upon the applications for joinder the following: Mr. Egwuoyibo Okoye, Mrs. Felicia Ngwubo, Mr. Gabriel Onuigbo, and Mr. Chukwudi Anieke, were joined as co-plaintiffs; while the following were joined as co-defendants. They were: Willian Okosi, Ikenna Amechi Esq, Joseph Okeke, Tim Egboka, Chinedu Muokwe and Peoples Democratic Party (PDP). Consequently, the 2nd – 5th co-plaintiffs individually took out an originating summons allegedly on the order of the trial court after fully being joined in the suit and the suits were consolidated.

In his own originating summons, the 2nd co-plaintiff like other co-plaintiffs asked for the determination of 6 questions and claims 6 reliefs as shown on the face of the originating summons at pages 310 – 313 of the records. However, it is pertinent to note that there was an earlier originating summons took out on 4th April, 2007 by the 2nd – 5th plaintiffs as shown on pages 118 – 123 of the records.

The reliefs sought by the 2nd co-plaintiff are as follows:

1. A declaration that the 1st defendant’s statutory power to substitute a nominated candidate of a political party, under section 34 of the Electoral Act, 2006, is qualified and not absolute.
2. A declaration that the 1st defendant has no power to substitute a candidate of a political party less than 60 days to the election when the candidate is not dead.
3. A declaration that the 7th defendant cannot substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
4. A declaration that the substitution of the 2nd plaintiff by the 1st and 7th defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Nnewi South 2 State Constituency of Anambra State in the manner it did is ultra vires, undemocratic, arbitrary, unlawful, illegal, unconstitutional, null and void.
5. An order setting aside the purported substitution, same being in excess of the statutory powers of the 1st and 7th defendants, is an abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.
6. An order of mandatory injunction directing the 1st defendant to restore the 2nd plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Nnewi South 2 State Constituency of Anambra State.

No oral evidence was adduced by any of the parties at the hearing of this case. Instead, the case was contested on the affidavits; counter affidavits, as well as written addresses by both parties. The cases for the plaintiffs as deposed in the affidavits are as follows:

“The plaintiffs were all members’ of their political party – the 7th defendant. All were prospective candidates for the Anambra State House of Assembly election in various constituencies. After contesting and winning primaries, congratulatory letters issued to them respectively, and their names were duly forwarded to the 1st defendant by their party – the 7th defendant. They were issued with various INEC Forms to fill. Having complied with the requirements as stipulated by the 1st defendant, they filled and returned the said forms. Thereafter they were screened and each was certified as qualified to contest. After commencing electioneering campaign in their respective constituencies, and expend money, time and energy in the exercise, then suddenly they start to hear rumours that their party, intends to substitute them. The rumors became obvious when they discovered that their names were not in the list of candidates for elections in the constituencies they were supposed to stand for the election.”

This provoked them to file this action.

On their part, the 2nd – 5th defendants were the candidates whose names were to replace all the plaintiffs in the named constituencies.

On 26th April, 2007, the 2nd, 4th, 5th and 6th defendants filed their respective motions on notice asking the trial court for an order striking out/dismissing the suit filed by all the plaintiffs against them, on the ground that the trial court lacks jurisdiction to grant the reliefs sought by the plaintiffs.

After examining all the processes filed in this matter including the written addresses, submissions of counsel to the parties, the learned trial judge granted the order, and struck out the claims of the 1st, 3rd, 4th and 5th plaintiffs and entered judgment in favour of the 2nd plaintiff in the following terms:

“I have looked at the entire processes filed on behalf of the 3rd defendant and I hold that no cogent and verifiable reason was advanced for the purported substitution. Also, the facts shows that there were a breach of section 36 of the 1999 Constitution because there is no evidence that the 2nd plaintiff was heard before the substitution was made and this has been given judicial support in the case of Ararume v. Engr. Ugwu (supra) at page 16 where Adekeye, JCA hold inter-alia:

Moreover, a person whose right and interest are likely to be affected must be heard before the decision is taken against him, so as to not violate his constitutional right under section 36(1) of the 1999 Constitution’.

In all the circumstances, I answer all the questions posed in the originating summons in favour of the 2nd plaintiff against the 3rd defendant and all the reliefs sought are hereby granted to the 2nd plaintiff against the 3rd defendant.”