Independent National Electoral Commission V. Democratic Peoples Party & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment)

The 2nd Respondent in this appeal, Hon. Efe Godfrey Ofobruku represents Uvwie State Constituency of Delta State in the Delta State House of Assembly. He was sponsored by and elected on the platform of the 1st Respondent herein, the Democratic Peoples Party.

At the proceedings of the Delta State House of Assembly on 6th March, 2012, the Speaker announced to the House that the 2nd Respondent had decamped to the Peoples Democratic Party (PDP).

The 1st Respondent found the decamping irksome, especially as it maintained that there was no division within its ranks and that it had not merged with any other political party. It consequently headed to the Federal High Court where it instituted an Originating Summons in Suit No. FHC/ASB/CS/81/2012, which suit was later renumbered as FHC/WR/CS/102/2013. It sought for the determination of the following question:

“Whether or not the 1st Defendant herein has not LOST HIS LEGISLATIVE SEAT IN THE DELTA STATE HOUSE OF ASSEMBLY under and by virtue of the provisions of Section 109 of the Constitution of the Federal Republic of Nigeria 1999 as a result of the fact that the Record of Proceedings of that State House of Assembly (Hansard) for Tuesday 6th March, 2012 established beyond doubt that the 1st Defendant decamped from the Political Party on whose platform he was elected i.e. the Democratic Peoples Party (D.P.P.) to another political party (the Peoples Democratic Party (P.D.P.) on whose platform he was not elected.”

Upon the determination of the said question, the 1st Respondent sought the following reliefs:

“1. A declaration that the 1st Defendant Efe Godfrey Ofobruku elected to the Delta State House of Assembly to represent Uvwie State Constituency lost his seat in the House (Delta State House of Assembly) on Tuesday 6th March, 2012 having decamped from the Political Party under whose platform he was elected to another political party contrary to Section 109 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

2. A declaration that the legislative seat of the Uvwie State House of Assembly representative is now vacant, Efe Godfrey Ofobruku having lost the right to sit therein under and by virtue of the provision of Section 109 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
3. An order that fresh election be conducted by the 2nd Defendant to fill the vacant seat of the member representing Uvwie State Constituency of the Delta State House of Assembly for the un-expired term of the 1st Defendant.
4. Any other order or orders or further or other order or orders as this Honourable Court may make, having regard to the circumstances and justice of this case.”

The Appellant herein, who was the 2nd Respondent at the Lower Court challenged the competence of the action. It filed a notice of preliminary objection wherein it urged the Lower Court to strike out the action or strike out its name upon the grounds of want of jurisdiction, incompetence of the action, absence and/or non-disclosure of any cause of action against it, misjoinder, non-joinder and that the action was an abuse of process, oppressive, embarrassing, premature, hasty, vexatious and frivolous.

After plenary argument on the preliminary objection the Lower Court dismissed the same on 27th May, 2014. The Ruling of the Lower Court is at pages 162 -180 of the Records. Being dissatisfied, the Appellant appealed on 9th June, 2014. The notice of appeal is at pages 181 -185 of the Records.

The Records of Appeal having been compiled and transmitted on 28th August, 2014, the Appellant filed its brief of argument on 9th September, 2014. The Appellant distilled a sole issue for determination as follows:

“Whether having regard to the clear provisions of S.109 (1) (g) and S. 109 (2) Constitution of the Federal Republic of Nigeria 1999 (as amended), the parties as presently constituted and the procedure adopted, the plaintiff’s suit is competent and maintainable against the defendant(s).”

The Respondents did not file any briefs of argument. At the hearing of the appeal, J.H. Igbikiberesima Esq., learned Counsel for the Appellant adopted and relied on the Appellant’s Brief and he urged the court to allow the appeal and strike out the action for want of competence.

S. O. Oluku, Esq., learned Counsel for the 1st Respondent, informed the court that even though he did not file a Respondent’s Brief, that the Appeal was on all fours with the sister appeal in Appeal No. CA/B/306/2014: the judgment of which has also been delivered today. On his part, Ikhide Ehighelua, Esq., counsel for the 2nd Respondent conceded the appeal.

The issue for determination formulated by the Appellant is apt and it is on the basis of the said issue that I will consider and resolve this appeal.