Senator Christiana N.d. Anyanwu V. Hon. Independence Chiedoziem Ogunewe & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court sitting in Owerri presided over by the Hon. Justice L. Akanbi, whereby the Suit filed by the Plaintiff (now 1st Respondent) against the Appellant and the 2nd, and 3rd Respondents was struck on the 29th day of March, 2011.

The Plaintiff, (herein after referred to as the 1st Respondent) by an originating summons dated the 11th day of February, 2011 and filed on the same date sought for the determination of the following eleven (11) questions as follows:

1. Whether the rights of the Plaintiff to be presented by All Progressive Grand Alliance (APGA) the party of his choice and membership, as the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 have been infringed by the 1st defendant by submitting to the 2nd defendant as the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election the name of the 3rd defendant, Senator Christiana N. D. Anyanwu who was neither member of APGA nor factually took part in the said Primary election.
2. Whether the All Progressives Grand Alliance (APGA) has any power to present and/or otherwise submit the name of Senator Christiana N. D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011.
3. Whether the All Progressives Grand Alliance (APGA) has any power to sponsor Senator Christiana N.D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election save and/or except as prescribed by Sections 65(1) (a) and (2) (b) of the Constitution of the Federal Republic of Nigeria 1999.
4. Whether the All Progressives Grand Alliance (APGA) has any power to sponsor Senator Christiana N. D. Anyanwur who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election save and/or except as prescribed by Article 7(1)(b) and 2(c) of the Constitution of All Progressives Grand Alliance (APGA).
5. Whether in view of Article 7(1)(b) and 2(c) of the Constitution of All Progressives Grand Alliance (APGA), the said (APGA) has any power to manifest and otherwise publish on their Primaries Ballot Paper the photograph and name of Senator Christiana N. D. Anyanwu, who was at all material times before and after the APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) and who voted as a delegate in PDP’s special Convention/Presidential Primaries held in Eagle Square Abuja on the 13/14th of January, 2011.
6. Whether the Independent National Electoral Commission (INEC) has any power to accept Senator Christiana N. D. Anyanwu, who was at the time of the said APGA’s Primary Election on 14th January, 2011 an active member of another party, the Peoples Democratic Party (PDP) as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election.
7. Whether the Independent National Electoral Commission (INEC) has any power to accept any person nominated by any political party to contest as Senatorial Candidate in 2011 general election save and/or except as prescribed by Section 87(1), (2), (3), (4)(c) of the Electoral Act 2011 of Federal Republic of Nigeria.
8. In view of the clear provisions of Section 85 (1), (2) (3); Section 86(1) and Section 87(1); whether the Independent National Electoral Commission (INEC) has any power to accept Senator Christiana N. D. Anyanwu, after receiving executive summary from its office in Imo State duly signed by its principal officers there setting out the result of APGA’s Primary elections including that of Imo East Senatorial Election clearly showing that Hon. Independence Chiedoziem Ogunewe won the said primaries and not Senator Christy Anyanwu.
9. Whether it is proper and lawful for Senator Christiana N. D. Anyanwu or any person at all to belong to two political parties simultaneously.
10. Whether it is not proper, lawful and obligatory for the All Progressive Grand Alliance (APGA) to Present and/or otherwise submit to INEC the name of HON. INDEPENDENCE OGUNEWE who as valid member of APGA factually participated in the said APGA’s Primary Election on 14th January, 2011 as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011.
11. Whether it is not proper, lawful and obligatory for the Independent National Electoral Commission (INEC) to reject and/or otherwise refuse to accept the name of Senator Christiana N. D. Anyanwu as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 for being a member of two political parties, PDP and APGA simultaneously.

He then sought for the following reliefs:

1. DECLARATION that the rights of the Plaintiff to be presented by All Progressive Grand Alliance (APGA) the party of his choice and membership, is the APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 have been infringed by the 1st defendant by submitting to the 2nd defendant as APGA’s Senatorial Candidate for Imo East Senatorial Zone Election in 2011 general election the name of the 3rd defendant, Senator Christiana N. D. Anyanwu who neither was a member of APGA nor factually took part in the said Primary election.
2. DECLARATION that the inclusion, manifesting and publication of the name and photograph of Senator Christiana N. D. Anyanwu on APGA Senatorial ballot paper for Imo East Senatorial zone when she was a member of Peoples Democratic Party (PDP) is unlawful, illegal, null and void.
3. DECLARATION that the purported submission of the name of Senator Christiana N. D. Anyanwu by the 1st defendant to the 2nd defendant as APGA’S Senatorial Candidate for Imo East Senatorial zone in 2011 general election when she did not participate at all in APGA’s primary elections is unlawful, unconstitutional and therefore null and void and of no effect whatsoever.
4. DECLARATION that the 1st defendant is under obligation to submit to the 2nd defendant the name of the plaintiff as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
5. DECLARATION that the 2nd defendant is under obligation to reject the submission of the candidature of Senator Christiana N.D. Anyanwu as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
6. DECLARATION that the 2nd defendant is under obligation to accept the candidature of HON. INDEPENDENCE OGUNEWE AS APGA’S Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
7. DECLARATION that the 2nd defendant is under obligation to reject the candidature of any person from any party including APGA for 2011 general election except through party primaries.
8. AN ORDER striking out the name and photograph of from the APGA Senatorial ballot paper for Imo East Senatorial zone for not being a member of the said APGA before, during and after the 14th January 2011 APGA primaries for Imo East Senatorial Zone.
9. AN ORDER compelling the 1st defendant to submit the name of the plaintiff to the 2nd defendant to wit HON. INDEPENDENCE OGUNEWE as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
10. AN ORDER compelling the 2nd defendant to publish by displaying or causing to be displayed the name of HON. INDEPENDENCE OGUNEWE at the relevant offices of the commission or the commission’s web site as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.
11. AN ORDER, prohibiting the 2nd defendant from publishing by displaying or causing to be displayed the name of Senator Christy Anyanwu at the relevant offices of the commission or the commission’s web site as APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election,
12. AN ORDER deeming the name of HON. INDEPENDENCE OGUNEWE as the right, lawful and proper APGA’s Senatorial Candidate for Imo East Senatorial Zone in 2011 general election.

In a nutshell, the facts of the 1st Respondent’s case as can be gleaned from the processes filed are that the Appellant is not a member of All progressive Grand Alliance (APGA), the 2nd respondent and her name should not have been forwarded to the Independent National Electoral Commission (INEC), (the 3rd Respondent) by the 2nd Respondent as the candidate of All Progressive Grand Alliance for the Imo East Senatorial District Election for April, 2011.

The Appellant and the 2nd Respondent’s case is that the Appellant was a member of the All Progressive Grand Alliance for the said Senatorial district election.

In a considered Judgment delivered on the 29th March, 2011, the Learned trial Judge inter alia held as follows:-

“In the case of the Plaintiff at hand, the facts are seriously in contentious dispute. The appropriate method of initiating the proceedings is not by originating summons. When Suit is commenced by an originating summons instead of writ of summons, the appropriate Order is usually that one made by the Court directing the Suit to proceed with the filing of pleadings.

However, that Order will not be made by the Court where nothing will be derived therefrom. See Emezi vs. Osuagwu (2005) 11 NWLR (Pt. 939) 340 at 347 – 348.” (See pages 473 to 474 of the Record of Appeal).

The Court concluded:

“In the final analysis, I hold that the Plaintiff’s Suit which was commenced by Originating Summons has been improperly initiated and from the facts and circumstances of this case, I hold that an order for filing of pleadings is inappropriate herein as nothing will be derived therefrom.

A fortiori, the Plaintiff’s case is hereby struck out for being incompetent.” (See page 475 of the Record of Appeal).

Interestingly, it was the 3rd Defendant (hereinafter referred to as the Appellant) in whose favour the Suit was decided that felt dissatisfied with the above findings by the Learned Trial Judge and appealed to this Hon. Court vide a Notice of Appeal dated 25th May 2011 and filed on the 1st June, 2011 upon the following two (2) grounds of appeal as hereunder reproduced without their particulars:

Ground 1: