Nnanyelugo Chidi Aroh V. Peoples Democratic Party & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the ruling of the Court of Appeal Holden at Abuja in appeal No.CA/A/221/2011 delivered on the 26th April, 2012 in which the court dismissed the application of appellant for leave to adduce further evidence before the lower court. The appeal is therefore an interlocutory one as the main appeal against the decision of the Federal High Court, Holden at Abuja in suit No.FHC/ABJ/CV/83/2011 delivered on the 25th day of March, 2011 still pends before the lower court.

By an Originating Summons filed on the 27th day of January, 2011, the appellant, as plaintiff sought the determination of the following questions by the Federal High Court, Holden at Abuja, to wit:

“1. Whether having won the Primary Elections conducted by the Peoples Democratic Party (PDP) on the 12th of January 2011 for Igbo Etiti/Uzouwani Federal Constituency, is the plaintiff not the duly nominated candidate for the National Assembly Elections in April, 2011.

2. Whether the Primary Election conducted by the Peoples Democratic Party (PDP) on the 12th of January 2011 can be set aside without any petition, complaint or irregularity in the conduct of the Primary.
3. Whether having regard to the extant Laws and Regulations, Peoples Democratic Party (PDP) could conduct another primary election to select a candidate for Igbo Etiti/Uzouwani’s Federal Constituency after the 15th day of January 2011 without recourse to the plaintiff.
4. Whether by virtue of section 87(10) of the Amended Electoral Act 2011, the plaintiff having won the primaries can question or complain against the unlawful replacement by his party and refusal to issue him with INEC nomination forms.
5. Whether in view of Part VI section 50(d) of the Electoral Guidelines for the 2010 of the Peoples Democratic Party (PDP) and complaint that was not brought to the appropriate levels in writing within 24 hours of completion of the primaries Elections of the party can be entertained by the party or said to be valid and proper.
6. Whether in view of Part VI section 50(e) of the Electoral Guidelines for the 2010 of the Peoples Democratic Party (PDP), the plaintiff is entitled to be given an opportunity to present his case and whether he is entitled to be communicated in writing within 48 hours the decisions of the panel.”

Flowing from the determination of the above questions, the plaintiff/appellant sought the following reliefs:-

“1. A DECLARATION that the plaintiff is the duly nominated candidate of the Peoples Democratic Party (PDP) representing Igbo Etiti/Uzouwani Federal Constituency in the Primary Elections conducted on the 12th day of January 2011 for the elections scheduled for April 2011.

2. AN ORDER of injunction restraining the Peoples Democratic Party (PDP), their servants and agents, privies, howsoever from forwarding the name of any other candidate other than that of the plaintiff to the 2nd Defendant as the Peoples Democratic Party (PDP) candidate for the Legislative Elections Scheduled for the April 2011 representing Igbo Etiti/Uzouwani Federal Constituency.
3. An order compelling the 1st Defendant to issue INEC nomination forms to the plaintiff.
4. An order restraining the 2nd Defendant from publishing any other name other than of the plaintiff as the candidate for the Election into the House of Representatives for Igbo Etiti/Uzouwani Federal Constituency in the Elections scheduled for April, 2011

The defendants/respondents in this appeal reacted to the claims of the plaintiff by filing the appropriate processes including a preliminary objection filed on 7/2/11 by learned Counsel for 1st defendant CHIEF OLUSOLA OKE seeking an order striking out the proceedings for want of jurisdiction in that the Originating Summons is incompetent. The above preliminary objection was argued together with the Originating Summons as directed by the trial court. In the judgment delivered on 25/3/11, the trial court held that the facts of the case are seriously in dispute particularly between the affidavits of the plaintiff and 1st defendant as they relate to the questions for determination and that the conflicting affidavits cannot be resolved without recourse to oral evidence etc. Consequently the court ordered parties to file their pleadings in the matter.

It is the above decision which gave rise to appeal NO.CA/A/221/2011.

However, in the course of the proceedings in the said appeal, appellant filed a motion in which he prayed the court for an order granting him leave to adduce further evidence.

The said application gave rise to the ruling of the lower court delivered on the 26th day of April, 2012 in which the court dismissed the application. In effect, the reason for the refusal to grant the application lies in the fact that the action still pends at the trial court where the evidence can be easily introduced at the trial under the general cause list as ordered by the trial court.

The instant appeal is therefore against the decision of the lower court delivered on 26th April, 2012, the issues for determination of which have been formulated by appellant, NNANYELUGO CHIDI AROH ESQ in person in the appellant brief filed on the 13th day of June, 2012, as follows:-

“(1) Whether the Court of Appeal was right in refusing the application of the appellant to adduce fresh evidence in the appeal considering the very vital nature of the evidence sought to be adduced and the overall justice of the suit.

(2) Whether the decision of the Court of Appeal that the appellant still has the opportunity to present the evidence sought to be adduced in the lower court did not amount to deciding the appellant’s appeal at the interlocutory stage without considering the appeal on the merits.”

On his part, learned Counsel for 1st respondent, CHIEF OLUSOLA OKE in the 1st respondent’s brief deemed filed on 04/12/2012 is of the view that the main issue for determination is as follows: