Owelle Rochas Anayo Okorocha Vs Peoples Democratic Party & 4 Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C

This is an appeal against the Ruling of the Court of Appeal, Owerri judicial Division delivered on the 19th October, 2012 wherein the court granted the 1st Respondent leave to appeal against the judgment of the Federal High Court, Owerri in Suit No. FHC/OW/CS/133/2011 A.C.N. V. I.N.E.C. & Ors, delivered on 3rd February, 2012.

The judgment dismissed the suit filed by the 2nd and 3rd Respondents on the ground that the subject matter of the said suit was a post election matter. See pages 277 – 297 of the record of Appeal in evidence.

Dissatisfied with the judgment of the Federal High Court, the 2nd and 3rd Respondents lodged an appeal at the Court of Appeal, Owerri Judicial Division vide a Notice of Appeal dated 28th March, 2012 and filed on 30th March, 2012 – pages 323 – 332 of the record of appeal is also in evidence. The said appeal was subsequently given a number, CA/OW/101/2012.

The Briefs of argument were filed and exchanged in respect of the appeal as between the 2nd and 3rd Respondents on the one hand, who were appellants at the Court of Appeal, while the 4th and 5th Respondents as well as the appellant herein are, on the other hand, all respondents at the lower court. Pages 340 – 470 of the record of appeal is evidencing the respective briefs of arguments filed by all the parties herein, except the 1st Respondent. While the foregoing appeal was pending, on the 18th May, 2012 the 1st Respondent herein brought an application in the said Appeal No. CA/OW/101/2012, praying the court for leave to appeal, as an interested party, against the judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/133/2011. The application is at pages 537 – 573 of the record.

Upon service of the foregoing application on the Appellant herein, he promptly filed a notice of preliminary objection and a counter affidavit challenging the 1st Respondent’s application as evidenced at pages 608 – 890 of the record of Appeal.

Notwithstanding the Notice of preliminary Objection and the counter affidavit, the Court of Appeal on the 19th of October, 2012 delivered its Ruling on the said Application, and granted the 1st Respondent leave to appeal against the judgment of the Federal High Court, Owerri delivered on 3rd February, 2012. Pages 1- 14 of the supplementary record are in evidence.

It is against the ruling delivered by the lower court on the 19th of October, 2012 therefore that the appellant has lodged this appeal vide a Notice and Grounds of Appeal filed on 24th October, 2012. The brief statement of facts that gave rise to this appeal are very intriguing and as follows:

Prior to the General Elections conducted by the 4th Respondent (INEC) herein, into the office of the Governor of the various states of the Federal Republic of Nigeria in April, 2011, the 4th respondent had fixed the 26th day of April, 2011, as the date wherein election would be conducted into the office of the Governor of Imo State. That date was in compliance with the provision of section 178(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

On the said 26th April, 2011, election held as scheduled successfully in 23 local Government Areas of Imo State; the uncontrollable violence, however marred and made it impossible for the 4th respondent to conduct election in the 4 local Government Areas of: Ohaji/Egbena, Mbaitoli, Oguta, Ngor-okpala as well as Orji Ward in Owerri North Local Government Area.

Following the provision of section 26(1), (2) and (3) of the Electoral Act, 2010 (as amended) the 4th Respondent postponed election in the said affected areas of the state and declared the Governorship Election in Imo State inconclusive. It subsequently appointed the 6th of May, 2011 as a date for supplementary election to hold into the affected Areas.

On the 3rd of May, 2011, the 2nd and 3rd Respondents filed an action challenging the constitutionality of the decision of the 4th Respondent to conduct the supplementary election. However, the originating processes in that suit could not be issued and served on the 4th Respondent herein, until about 10th of May, 2011 after the 4th Respondent had concluded the supplementary election and declaring the appellant herein as the winner of the said election, and returning him as duly elected Governor of Imo State.

For purpose of emphasis, the 4th Respondent herein held the supplementary Election on 6th May, 2011, in conclusion of the Governorship Election which was kick started on 26th April, 2011 in accordance with section 26(1) and (2) of the Electoral Act, 2010 (as amended); the Originating processes in the suit of the 3rd Respondent having not been issued or served on it.

On the record and worthy of note is the fact that the Constitutionality/legality of the supplementary Election was challenged by the 1st Respondent herein i.e. the Peoples Democratic Party (P.D.P.) at the Election Petition Tribunal in Petition No. EPT/IM/GOV./04/2011: Peoples Democratic Party V. Owelle Rochas Anayo Okorocha & Ors. The tribunal’s judgment is contained at pages 621 – 670 of the record of appeal, specifically at page 668 at the last paragraph, the trial Tribunal held and said:-