Peoples Democratic Party & Anor. V. Kingsley Nonye Philips & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:FHC/ABJ/CS/220/07 which was delivered on the 10th day of May, 2007.

The action was commenced by Originating Summons Procedure at the lower Court by the Plaintiff/1st Respondent/Cross Appellant (hereinafter called the 1st Respondent) against the Appellant/Respondent/Cross Respondent (hereinafter called the Appellant) and 2nd Respondent/Cross Respondent.

The reliefs sought by the 1st Respondent as adumbrated in the Originating Summons are:-

“(1) A declaration that there are no cogent and verifiable reasons for the Defendants to challenge, substitute or entertain the change of name of the Plaintiff as the candidate of the Peoples Democratic Party (PDP) for the Ika South Constituency of the Delta State House of Assembly Election due in April 2007.

(2) A declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the Delta State House of Assembly election. The time for so doing having expired.

(3) A declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Ika South Constituency of the Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff had been duly nominated by the 1st Defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.

(4) An Order of Injunction restraining the 2nd Defendant, their servant, officers, assigns, privies or agents from carrying into effect or doing anything whatsoever amounting to changing or substituting the Plaintiff’s name as the 1st Defendant’s candidate for Ika South Constituency of the Delta State House of Assembly election due in April 2007 as same is illegal, null void and of no effect whatsoever.

(5) An Order of Injunction restraining the Defendants, their privies, assigns, servants, officers or agents from changing or substituting the Plaintiffs name for the April 2007, Ika South Constituency of the Delta State House of Assembly Election as the time for so doing has expired.

(6) An Order of Perpetual Injunction restraining the Defendants from changing or substituting the name of the Plaintiff as the 1st Defendant’s candidate for the Ika South Constituency of the House of Assembly Election due in April, 2007 unless and until a Court order is made disqualifying the Plaintiff and or until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.”

At the conclusion of hearing after the Election in issue had been concluded, the learned trial Judge granted 3 declaratory reliefs i.e. Reliefs 1, 2 and 3 while she refused reliefs 4, 5 and 6.

The Appellants dissatisfied with the said Judgment now appealed to this Court.

The learned Counsel for the Appellant formulated two issues for determination set out as follows:-

“(1) Whether having reprobated Reliefs 4, 5 and 6 of the Plaintiff’s Originating Summons the trial Judge could approbate the Plaintiffs Originating Summons by entering Judgment for the Plaintiff having granted the Declaratory Reliefs sought by the Plaintiff as per his Originating Summons.