Orhena Adugu Gbileve & Anor V. Mrs. Ngunan Addingi & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

The second Appellant, Action Congress of Nigeria, (ACN) conducted party primaries for nomination into the elective offices for the House of Representatives, Senate, State House of Assembly and Governorship on the 12th of January, 2011. The 1st appellant was declared the winner and the candidate of the 1st Appellant for the House of Assembly Buruku Constituency. The 1st Respondent Mrs. Ngunan Addingi dissatisfied with the declaration commenced an action as the plaintiff in the Federal High Court vide an Originating summons filed on the 14th February, 2011 wherein she claims the following reliefs:

1. A DECLARATION that having conducted a Primary Election in the Buruku Constituency of Benue State on the 12th January 2011, for the purpose of nominating the 1st Defendants candidate for the General Election stated for the 6th April 2011, it is mandatory for the 1st Defendant to nominate the winner of said Primary Election, as the party’s flag bearer for the purpose of participating and contesting in the Buruku constituency of Benue State slated for 6th April 2011, in accordance with the Electoral Act 2010 and the 1st Defendant’s guideline for the nomination of candidates.
2. A DECLARATION that the Plaintiff having scored the highest number of votes and declared winner by the electoral officer in the 12th January, 2011 Primary Election of the 1st Defendant she is entitled to fly the 1st Defendant’s House of Assembly flag for Bukuru constituency for the 6th April Election in the General Election in Benue State in accordance with Section 87 of the Electoral Act, 2010.
3. A DECLARATION that the refusal of the 1st Defendant to submit the name of the Plaintiff to the 2nd Defendant as the 1st Defendant’s flag bearer for the General Election into the Makurdi South Constituency House of Assembly in Benue State slated for the 6th April, 2011 after winning the Primary Election contrary to the provisions of the Electoral Act, 2010 and the 1st Defendant guidelines for nomination of candidates.
4. A DECLARATION that it is illegal, unlawful and contrary to both the Electoral Act 2010 and the 1st defendant’s guideline for the 1st Defendant to submit the name of the 3rd Defendant to the 2nd Defendant as the House of Assembly candidate for Buruku constituency of Benue Sate in the General Election slated for 6th April 2011, after the Plaintiff emerged as the winner of the House of Assembly Election Primaries of Buruku constituency of Benue State conducted by the 1st Defendant to pick it’s House of Assembly candidate for the said Election.
5. AN ORDER of injunction restraining the 2nd defendant either by itself, officers agents privies, staff of through any person or persons howsoever from recognizing, accepting or dealing with the 3rd defendant as flag bearer of the 1st defendant in the April 6th 2011 General Election having not emerged in accordance with the Electoral Act, 2010.
6. AN ORDER directing the defendants particularly the 2nd Defendant to recognize, accept, and deal with the Plaintiff as the flag bearer of the 1st Defendant in the Buruku House of Assembly constituency of Benue State slated for 6th April 2011 having emerged as the winner of the 1st Defendant’s primary Election held on the 12th day of January, 2011 in accordance with the Electoral Act, 2010.
7. AN ORDER directing the 1st Defendant to submit the name of the Plaintiff who got the highest number of votes at the 1st Defendant’s House of Assembly Primary Election for Buruku constituency of Benue State to the 2nd Defendant as the validly nominated candidate to represent the 1st Defendant at the April 6th 2011 General Election.

The appellants contesting the reliefs sought in the Originating summons filed counter affidavits exhibiting documents. They also raised a preliminary objection. The trial court heard arguments of the respective learned counsel and in a considered Judgment granted the 1st Respondent all the reliefs sought in the summons.

The appellants aggrieved by the decision of the trial court filed a Notice of appeal which was later amended. The amended notice of appeal deemed properly filed on 08/03/2012 contained 7 grounds of appeal as numbered.

In line with the rules of this court parties filed and exchanged briefs of argument. At the hearing of appeal on 08/03/2012, the learned counsel for the appellants Mr. Tambowua adopted the appellants Amended brief of argument filed on 06/06/2012 and deemed filed on 08/03/2012. The learned counsel for the 1st respondent Mr. Hirse adopted the brief of 1st respondent filed on 10/02/2012 and Mr. Ula adopted the 2nd Respondent’s brief filed on 05/03/2012.

The appellants in their brief distilled 3 main issues for determination. They read thus:

“1. Whether the lower court possessed the requisite jurisdiction to:-

a) abridge time for filing the defence of the appellants without affording them a hearing or an opportunity to be heard contrary to S.36(1) of the amended 1999 constitution and in the face of order 13, Rule 35(15) of the Federal High Court (Civil Procedure) Rules 2009 and non-application for the order by any of the parties.

b) adjudicate on the suit before it respecting nomination and sponsorship of candidates by a political party outside the scope and intendment of S. 87(9) of the Electoral Act 2010 (as amended).

c) adjudicate on the suit before it when the subject matter therein could not be embraced under any of the 19 enumerated items specified in Section 251(1) and (4) of the 1999 Constitution (as amended) and in the absence of any substantive and concrete complaint against the 2nd respondent (3rd defendant) in the originating summons. (Grounds 1, 3 and 4 of the appeal)

(2) Whether the lower court acted correctly in law in failing to order pleadings and/or taking oral evidence to resolve the obvious material conflicts in the competing affidavits and counter-affidavits of the parties before proceeding to judgment against the appellants (Ground 2 of the appeal).

(3) Was it right for the lower court to refuse, fail or neglect to act on the unchallenged evidence adduced by the appellants and also ignore the oral and documentary evidence presented before it (Grounds 5 and 6 of the appeal)”

The 1st respondents in their brief formulated the following issues for determination:

“1. Whether the lower court had the requisite jurisdiction to adjudicate on this suit (Ground 1 of appeal).