Senator Alphonsus Uba Igbeke V. Lady Margery Okadigbo & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 16th December, 2011 in the consolidated Appeal CA/A/166/2011; (Lady Margery Okadigbo v. Senator Alphonsus Uba Igbeke & Ors.) CA/A/243/2011; (Prince John Okechukwu Emeka V. Senator Alphonsus Uba Igbeke & Ors.) and CA/A/281/2011 (Peoples Democratic Party (PDP) v. Independent National Electoral Commission (INEC) & Ors.). The said Court of Appeal had allowed the appeal which was filed by the 1st Respondent herein based upon her appeal against the Judgment of the Federal High Court Abuja. In the said Judgment which was delivered on 17th day of March 2012, the trial court found in favour of the Plaintiff/Appellant.

The Appellant herein who was the Respondent before the court below has brought this appeal to challenge the decision of the Court of Appeal which set aside the trial court’s decision, which recognized the Appellant as the 4th Respondent’s candidate and the consequential Order of the court below declaring that 1st Respondent as the rightful candidate of the 4th Respondent for the Anambra North Senatorial seat at the April 2011 General Election.

From the 13 grounds of Appeal contained in the Amended Notice of Appeal the Appellant formulated the following 3 issues for determination:-

“1. Having regard to the clear provisions of section 15 of the Court of Appeal Act, vis-a-vis the reliefs sought by the Appellant at the trial court, whether the lower court was not in grave error and so acted without jurisdiction when it declared the 1st Respondent as the candidate of the PDP for the Anambra North Senatorial District in the April, 2011 General Elections. (Grounds 7, 10, 12, and 13,).

2. Whether the lower court was not in grave error when it considered and countenanced the incompetent undated and unsworn counter affidavits of the 1st Respondent, as well as the exhibits attached thereto, and consequently declared the 1st Respondent as the candidate of the PDP for the Anambra North Senatorial District in the April, 2011 General Elections. (Grounds 1, 2, 3, 4, 5, 6 and 8).
3. Considering the questions presented for determination, as well as the reliefs sought, by the Appellant at the trial court, whether the lower court was not in grave error when it discountenanced exhibits C-C1 and D-D164, and placed undue reliance on exhibits PDP 3 in declaring the 1st Respondent as the candidate of the PDP for the Anambra North Senatorial District in the April, 2011 General Elections. (Grounds 9 and 11).”

On the other hand the 1st Respondent in her Amended Brief of Argument, submitted the following 3 issues for determination:

“1. Whether the Court of Appeal was not right in its decision that the trial court erroneously ignored the Counter affidavit filed by the 1st respondent and whether that decision of the Court of Appeal has occasioned any miscarriage of justice having regard to the totality of the facts and circumstances of this case

2. Whether the Court of Appeal was not correct in upturning the decision of the trial Court that it failed to make proper use of the affidavit evidence before it to come to the decision that the appellant was a candidate of the 4th Respondent for Anambra North Senatorial district when all the facts and circumstances of the case is taken into consideration
3. Whether the Court of Appeal in the circumstances was not right by invoking the provisions of Section 15 of the Court of Appeal Act, 2004 to declare the 1st respondent at the April, 2011 General Elections having regard to the totality of all available evidence in the record of the appeal”

The 2nd Respondent herein did not deem it necessary to file any brief of argument, hence no issue was raised by them for the determination of the appeal.

On behalf of the 3rd Respondent his learned counsel in a brief filed originally on 5/3/2013 but deemed filed on 7/3/2013 has raised the following 3 issues for determination of the appeal:

“3.1. Whether the Court of Appeal was right in setting aside the Judgment of the lower court having regards to the court processes before it (Grounds 1, 2, 3, 4, 5, and 6).

3.2. Whether the Court of appeal properly invoked its power under Section 15 of the Court of Appeal Act, 2004 to condone abuse of its processes by conferring jurisdiction on itself in declaring the 1st Respondent candidate of 4th Respondent Grounds 7, 8, 9, to and 11).

3.3. Whether the trial court, Court of Appeal and Supreme Court have the jurisdiction ab inito to declare any of the parties to the instant appeal candidates to the 4th Respondent, having regards to Electoral Act 2011 (Grounds 12 and 13).”

The 4th Respondent, on page 45 of their brief of Argument filed on 28/2/2013 but deemed validly filed on 7/3/2013, considers it necessary to adopt the issues set out by the Appellant at page 11 of the Appellant’s brief of Argument and as reproduced above for determination:

At the hearing of the appeal on the 7th March, 2013, learned counsel for the parties adopted their respective briefs of argument. It will be recalled that it was there and then that the learned senior Silk Yusuf O. Ali SAN drew our attention to the 1st Respondent’s Motion on Notice dated 2nd November, 2012 but filed on 6th November, 2012 together with the written address in respect of the said Motion on Notice. Having been satisfied that the Motion and accompanying written address was duly served on all the parties, and it was for all intents and purpose, a preliminary objection to the hearing of the Appellant’s appeal, the Learned Senior Silk for the 1st Respondent was allowed to move the motion. The argument and submissions of respective Counsel are set out and will be considered soon.