MR. Chibuzor Uwaje V. MR. Ebielim Maduemezia & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

On 10th March, 2012, the Peoples Democratic Party, the 2nd Respondent herein, held its Congress to elect the party officials for the Local Government Chapter of the Party in Delta State. The Appellant claims to have been duly elected the Chairman of the Peoples Democratic Party for Oshimili South Local Government Area at the said Congress.

However, the Appellant alleges that the State Chairman of the party was attempting to replace him with the 1st Respondent who did not contest the election for Chairman of the Oshimili-South Local Government Area Chapter of the Peoples Democratic Party.

Based on this allegation, the Appellant instituted proceedings at the Federal High Court, Asaba Division in Suit No. FHC/ASB/CS/121/2012 by way of Originating Summons for the determination of the following questions:

“1. Whether upon the interpretation of the Peoples Democratic Party (PDP) Constitution of 2009 (as amended), and the PDP Guidelines, a Local Government Party Chairman can emerge or be elected without the participation of the Local Government Area Congress Planning Committee and the elected ward delegates for the said Local Government.

2. If the answer to No. 1 above is in the negative; whether the current attempt by the 2nd Defendant to replace the Plaintiff whom the validly elected PDP delegates elected at the duly organized congress in accordance with the PDP Constitution on 10/3/2012 as Chairman of the party in Oshimili-South Local Government Area of Delta State with the name of the 1st Defendant without the latter contesting a valid election in a duly organized congress as provided for in the PDP Constitution and Guidelines amounts to a violation of the Plaintiff’s rights, thus entitling the latter to the declaratory; injunctive; and other consequential reliefs sought.”

Upon the determination of the aforesaid questions, the Appellant claimed the following reliefs:

“1. A declaration that the purported election of the 1st Defendant as the P.D.P. Chairman for Oshimili-South Local Government Area of Delta State without the 1st Defendant emerging as such through an Oshimili-South Local Government Area Congress by the Oshimili-South Local Government Congress Planning Committee with the duly elected Delegates voting as provided for in the P.D.P. Constitution and Guidelines is in violation of both the P.D.P. Constitution and Guidelines; the Amended Electoral Act 2010; the 1999 Constitution; and the Plaintiff’s right therein; and is consequently null and void and of no legal effect.

2. A consequential order setting aside the purported election of the 1st Defendant as the P.D.P. Chairman for Oshimili-South Local Government Area of Delta State.
3. A declaration that the Plaintiff is the validly elected P.D.P. Chairman for Oshimili-South Local Government Area of Delta State.
4. An order restraining the 2nd – 4th Defendants by themselves, their agents, privies and representatives from holding out and/or recognizing the 1st Defendant as the duly elected Chairman of the P.D.P. for Oshimili-South Local Government Area of Delta State.
5. Any other consequential order or orders that this honourable Court might deem fit to make in the circumstances.”

In the course of the proceedings at the Lower Court, the Appellant discontinued the action against the Delta State Chairman of the Peoples Democratic Party, who was originally sued as the 2nd Defendant. The 1st Respondent challenged the jurisdiction of the Lower Court to entertain the action by motion on notice filed on 8th March, 2013. The said motion is at pages 527 – 533 of the Records.

The said motion was taken together with the substantive Originating Summons and in its judgment which is at pages 581 – 600 of the Records, the Lower Court upheld its jurisdiction to entertain the action, assumed jurisdiction and determined the Originating Summons on its merits, dismissing the Appellant’s case. Both the Appellant and the 1st Respondent were dissatisfied with the said judgment. They all appealed against the same.

The instant appeal is by the Appellant against the decision dismissing his action. The sister appeal by the 1st Respondent herein is Appeal No. CA/B/434/2013 challenging the decision of the Lower Court that it is imbued with the jurisdiction to entertain the action. The judgment in Appeal No. CA/B/434/2013 has just been delivered today, allowing the appeal and holding that the Lower Court did not have the jurisdiction to entertain the Originating Summons filed by the Appellant herein.

The success of Appeal No. CA/B/434/2013 ought to signal the nunc dimittis for this appeal; however this is an intermediate appellate court, so it still behoves the court to consider this appeal, in the event of there being a further appeal against the judgment in CA/B/434/2013 to the apex court. See DR. OKEY IKECHUKWU vs. FEDERAL REPUBLIC OF NIGERIA Appeal No. SC. 278/2012 (unreported) delivered on 6th March, 2015. So here we go.

The Appellant’s original Notice of Appeal is at pages 601 – 606 of the Records. With the leave of court granted on 29th October, 2013, the Appellant filed an Amended Notice of Appeal. The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged between the Appellant and the 1st Respondent only.

The 2nd and 3rd Respondent did not file any processes and also did not attend court at the hearing of the appeal. By an order of court made on 2nd December, 2014, the appeal was set down for hearing on the briefs of the Appellant and 1st Respondent alone.

The Appellant’s Brief of Argument is dated and filed on 12th November, 2013 pursuant to the order of the court made on 29th October, 2013. The 1st Respondent’s Brief of Argument is dated 10th March, 2014, filed on 14th March, 2014 and deemed as properly filed and served on 5th May, 2014. The Appellant distilled three issues for determination in his Brief of Argument, namely: