Ilami Arugu & Ors V. Rivers State Independent Electoral Commission & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A

This is an appeal against the decision of Rivers State High Court Port Harcourt Division delivered on 23/9/2008.

The claimants’ claim before the trial court are as follows:-

“Claimants claim against the defendants jointly and severally as follows:

1. A declaration that claimants are the valid and subsisting candidates having been duly nominated for the offices of Chairman/Councilors in the previously scheduled 2007 Local Government Area Election in Rivers State.
2. A declaration that the arbitrary cancellation of the previous political parties elections primary exercise in the delayed 3rd November, 2007 Local Government Election in Rivers State of Nigeria is unlawful, unconstitutional, null and void.
3. A declaration that any repeat of the concluded election primaries is unlawful unconstitutional, null and void.
4. A declaration that the names of the claimants (candidates) already nominated by their political parties at the earlier concluded election primaries cannot be replaced by the result of any fresh primaries conducted without lawful authority.
5. An order of perpetual injunction restraining the conduct of any fresh political parties election primaries at the instance of defendants with the aim and object of replacing, withdrawing, nullifying or substituting the candidature of claimants earlier nominated as successful candidates by their political parties in similar exercise.
6. An order of perpetual injunction restraining the 1st defendant from conducting Local Government Area Election in Rivers State without the participation of the claimants, and/or, with the names of candidates that may emerge from the planned fresh political election primaries or any other similar exercise whatever at the defendant instance.
7. An order of perpetual injunction restraining 1st defendant from receiving, accepting and permitting to be fielded as candidate from the Chairmanship/Councillorship Elections into Local Government Area in Rivers State any candidates other than the claimants.”

In its ruling the trial court held inter-alia that the claimants had “legal impediment or obstacle on their way” The court held further.

“But before they can do so, they must remove the legal impediment or obstacle on their way, by first obtaining leave of this court or the Court of Appeal, to go on appeal, against the judgments of this court earlier mentioned, which adversely affected the legal rights they now seem desirous of protecting. It is after that, that they can properly come before this court to seek justice. Claimants are seeking justice and equity. They must necessarily do so with clean hands. Claimants must first institute in the Court of Appeal, a legal challenge to the orders of this court made behind them in the cases now under reference before embarking on their quest for justice. That is the Law.

In the final analysis and for some of the reasons given above in issue 4 or for a combination of them, the applications filed respectively by Counsel for 1st, 2nd and 3rd Defendants hereinabove mentioned, on the competence of this Court to entertain this Suit, at this stage, succeed.

In consequence thereof, I hereby order that Suit NO. PHC/30/2008, Itami Arugu & 19 Others v. Rivers state Independent Electoral Commission & 3 others, be and it is hereby struck out.”

It is against this decision that the documents filed a Notice of Appeal containing 7 grounds of appeal. The Grounds of Appeal read thus:-

“GROUNDS OF APPEAL:

1. Error in law

The trial court erred in law when it assumed jurisdiction to entertain the preliminary objections of the 1st, 2nd and 3rd defendants when these objection were originally fired against the previous statement of claim which was subsequently amended and replaced without a consequential re-filing of the objections on the same or different grounds.

Particulars

a. Claimants filed a statement of claim on 14th January, 2008.

b. The 1st, 2nd, 3rd defendants filed preliminary objections against the statement of claim in 18/3/2009, 17/3/2008 and 17/3/2008 respectively.