Prince Hon. Nicholas Ukachukwu V. Independent National Electoral Commission (Inec & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment)

In the main, this is an interlocutory appeal which arose from the Ruling of M.G. Umar, J. in Suit No. FHC/UM/CS/092 delivered on 21/3/2012. The Ruling arose from an application filed by the 2nd Respondent in the substantive suit (Dr. Andy Uba) in a motion on notice dated and filed on 20th February 2012, where he sought the following orders.

“1. An order that Justice. M.G. Umar who is the presiding Judge, in Suit No. FHC/UM/CS/92/2011 (Formerly Suit No. FHC/AWK/CS/05/2011, pending at the Federal High Court Awka and Suit No. FHC/ASB/CS/169/2011 pending at the Federal High Court Asaba between Prince Hon. Nicholas Ukachukwu vs. Independent National Electoral Commission (INEC) and Dr. Andy Uba disqualifies himself and decline from continuing hearing Suit No. FHC/UM/CS/92/2011 pending in his court at Federal High Court Umuahia.

2. And for such order or other orders as the Honourable court may deem fit to make in the circumstances.”

Before his application for recusal of 20th February 2012, the 2nd Respondent in the substantive suit had earlier on filed an appeal from the Ruling of the lower court presided over by the same Hon. Justice M.G. Umar delivered on the 1st day of February, 2012 in the same suit whereby the said Dr. Andy Uba was joined as 2nd Respondent in the Suit. That appeal, which was entered in the Court of Appeal as CA/OW/21/2012. Between Dr. Andy Uba vs. Prince Nicholas Ukachukwu & Anor. complained of impropriety of joining Dr. Andy Uba in the Suit but in the process also raised the issue of bias against his Lordship Hon. Justice M.G. Umar.

Meanwhile, the grounds upon which the 2nd Respondent’s application of 20/2/2011 for recusal was based as contained in the motion on notice before the court below filed by the learned senior counsel for the 2nd Respondent/Applicant, Arthur Obi Okafor SAN were as follows:

“i. There are strong evidence of bias and likelihood of bias being meted by the Trial Judge against the 2nd Respondent/Applicant in the suit.

ii. The trial Judge ever before hearing the application for joinder on the merits stated openly in the court that “he wants all the parties before him” before hearing the issue of jurisdiction. The Trial Judge in making the above pronouncement had already ruled against the 2nd Respondent/Applicant before hearing the application for joinder.

iii. The trial Judge has studiously and deliberately avoided the issue of jurisdiction brought before the court through motion on notice.

iv. On 15/2/2012, the trial Judge ordered Chief E.E. Egbunonu who was counsel to the former 2nd Respondent Prince Ken Emeakayi to personally file the notice of discontinuance on behalf of 2nd Respondent notwithstanding that the said Chief E.E. Egbunonu prayed the court that taking into consideration his background knowledge of his client and the nature of the instruction given to him by the 2nd Respondent, the notice of discontinuance should be personally signed by the 2nd Respondent.

v. The court refused the application and in its unseen urgency to hear and determine the suit against the present 2nd Respondent/Applicant volunteered and made available the services of the Registry of court to enable Chief Egbunonu to prepare and file notice of discontinuance on behalf of Prince Ken Emeakayi.

vi. The court stood the matter down for one (1) hour to enable Chief Egbunonu to personally prepare and file notice of discontinuance on behalf of Prince Ken Emeakayi.

vii. The application for discontinuance was not moved by Chief Egbunonu but P.I.N IKwueto SAN assumed and/or took over the brief of Chief E.E. Egbunonu, moved the application and it was granted by the trial court without qualms.

viii. The 2nd Respondent/Applicant was ordered to be joined in this suit on 1/2/2012. The 2nd Respondent/Applicant appealed against the order of the court joining him as Respondent in the suit. The 2nd Respondent/Applicant filed Notice and Grounds of Appeal and motion for stay of proceedings.