Independent National Electoral Commission, Anambra State & Anor. V. Ifeanyichukwu E. R. Okonkwo (2008)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the judgment of Federal High Court, Enugu Division (Coram Alagoa J.) delivered on 27th May 2005, which granted all the reliefs sought by the applicant, now respondent against defendants, now appellants. The reliefs sought by the plaintiff which were granted by the lower court as per the Originating Summons are as follows:

“A. A declaration that neither the 1st defendant INEC nor the 2nd defendant the Resident Electoral Commissioner, Anambra State are vested with any power for the clearing/approval or revalidation of the candidature for the said election of Mr. lfeanyichukwu E. R. Okonkwo, the validly nominated candidate of the Nigeria Advance Party in purview of having complied with the provisions of Section 21 of the Electoral Act 2002 by the Plaintiffs.

B. A declaration that the delistment and exclusion of the names of Mr. lfeanyichukwu E. R. Okonkwo, and the Nigeria Advance Party his sponsor, the 1st Respondent INEC amongst those other 13 names of candidates and their political parties purportedly clear, (sic), approved and or revalidated by the Defendants to contest the said election which was pasted at the 1st Defendants Head Quarters at Awka and circulated to newspapers Houses (among which is (sic) the This Day, The Sunday News Paper of April 13th 2003 is unconstitutional, null and void ab initio.

C. A declaration that the Nigeria Advance Party and its validly nominated candidate for the 19th April 2003 Governorship Election in Anambra State, Mr. lfeanyichukwu E. R. Okonkwo were unlawfully excluded from the said election, by the Defendants.”

The Facts which gave rise to this appeal as can be gleaned from the record of proceedings can simply be summarized below.

On the 28th July 2003 as stated earlier the plaintiff/respondent filed an originating summons at the Federal High Court, Enugu Division (herein after called “The Lower Court”) basically for the interpretation of Section 21 of the Electoral Act 2002 and has also sought the three above listed reliefs. The Plaintiff as respondent herein, on 1/8/03 filed an Ex parte application sought wherein he sought and obtained leave of the lower court to prosecute his suit in representative capacity. The Respondents now appellants also sought and obtained leave of the court on 31/5/04 to enter appearance out of time.

Then for over one year nothing happened in the suit perhaps, due to the plaintiffs application to the Chief Judge of Anambra State seeking the transfer of the suit to another judge on his complaint of bias against the Judge then handling the matter. Later on 13/1/2005, hearing in the suit started de novo before Alagoa J. who later adjourned the suit to 3/2/2005 as conceded by both parties. On that day, the plaintiff/respondent appeared in court while the defendants/appellant were absent and not represented, even though they were in court on 18/1/05 when the matter was adjourned to 3/2/05 with the consent of the parties. On this day (3/2/05) the plaintiff applied to the court to strike out all the processes the defendants filed earlier among which were the Notice of Preliminary objection filed on 13/8/03, Motion filed on 12/1/04 for leave to file memorandum of appearance and motion dated 15/8/03 for want of diligent prosecution. He also successfully applied for permission to argue his Originating Summons. The lower Court obliged him and stuck out all the processes earlier filed by the defendants and adjourned the matter to 23/2/2005 and ordered that hearing notice of the Originating Summons be served on the defendants. For undisclosed reason, the court did not sit on 23/2/2005. It however sat on 15/3/05 without the defendants or their counsel putting up appearance. On that day the plaintiff argued his Originating Summons after which the court adjourned to 6/4/05 for ruling. On 6/4/05 the lower court delivered a ruling and granted same and urged the plaintiff alone to address it on some issues which it raised suo moto and adjourned the matter to 3/5/2005 for the address. It should be noted that when the issue of address was raised by the court there was no indication in the courts record that defendants were to be served with any hearing notice. Again, on the subsequent adjourned date, i.e. 3rd May 2005 defendants were also not served with hearing notice to appear for the hearing of the Originating Summons. The plaintiff was on that day allowed to argue his application ex-parte. After his argument the court adjourned the matter to 24/5/2005 for judgment. The judgment was however not delivered on 24/5/05 but was instead delivered on 27/5/2005, wherein the lower court granted all the three declaratory reliefs sought by the applicant/plaintiff in the Originating Summons.

Against this judgment of the lower court delivered on 27/05/2005, the appellants appealed to this court. They filed Notice of Appeal dated 9/8/05 containing two grounds of appeal. One issue for determination was distilled from the two grounds of appeal in the appellants’ brief dated and filed on 9/1/2006 which read thus:-

“Whether the Federal High Court is clothed with the jurisdiction or competence to inquire/adjudicate/determined the issue/question as to whether a candidate for the 2003 Governorship Election was unlawfully excluded/delisted in view of the provisions of section 28(2) of the Constitution of the Federal Republic of Nigeria 1999: Sections 21(8)(9), 132 and 134 (1) (d) of the Electoral Act 2002?”

The learned Appellants’ counsel also filed Appellants’ Reply brief on 23/2/08 in reply to some issues raised in the brief of argument filed by the Respondent.

The respondent on the other hand, filed his brief of argument on 3/2/06 upon being served with the appellants’ brief of argument. In this brief of argument also one issue for determination was proposed which reads as below:-

“Whether under the 1999 Constitution Section 251(1) (q) and (r) with regards to the plaintiff/respondent’s Originating Summons, for the construction of Section 21 of the Electoral Act 2002, and the reliefs sought, the judgment dated 27/5/2005, is not within the jurisdiction of the Federal High Court of Nigeria?”

It should be stated at this stage, that the respondent had before the hearing of the appeal, filed a Notice of Preliminary Objection on 3/2/06 dated the same day. The seven grounds upon which the preliminary objections was filed vide the said Notice of Preliminary Objection are reproduced below.