Suleiman Atago Vs Mr. Ibiso Nwuche (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal emanated from the Judgment of the Court of Appeal Port Harcourt Division in a pre-election matter, delivered on the 7th day of December, 2011. The case that led to this Judgment was with respect to an appeal from the Federal High Court and the originating summons filed by the Appellant against the Respondents in the said pre-election matter.

The conclusion of the Judgment of the court below that prompted this further appeal to this Court was as follows:-

“The conflict in the affidavits of parties which disentitled the lower court from determining the appellant’s claim persist. The same conflict equally disentitle (sic) us from proceeding as well … In Chairman NPC V. Chairman Ikere Local Government (2001) 13 NWLR (Pt. 731) 540 E.O. Ayoola JSC opined at P. 559 of the report that inspite of the clear and violent (sic) in the opposing affidavits the trial tribunal had proceeded on an originating summons. It was held that the procedure adopted by the tribunal was contrary to well established principles and not in accord with the spirit of the rules of procedure contained in the enabling law. In the instant case the lower court avoided that mistake. Its decision is unassailable…”

The facts of this case, as can be gleaned from the record of appeal are that the appellant filed an originating summons at the Federal High Court in Port Harcourt in a pre-election matter claiming, inter alia, thus:

“1. A declaration that the 1st Defendant is not a qualified registered member of the PDP as required by the Constitution of the party and its guidelines for the conduct of the primary election into the Rivers State House of Assembly notwithstanding his purported registration as such.

2. A declaration that the 1st Defendant by the combined effect of the provisions of the 1999 Constitution of the Federal Republic of Nigeria as Amended, the Constitution and guidelines of the Peoples Democratic Party (PDP) and enabling Laws, Rules and Regulations in Nigeria, was not qualified to contest the primaries election in PDP in Ahoada East Local Government of Rivers State of Nigeria on the 4th January, 2011 not being a qualified registered member of the party to contest the party primary election as required by the party Constitution and guidelines.
3. A declaration that the participation of the 1st Defendant in the PDP Primary Election held on the 4th January, 2011 at Ahoada Town in Rivers state to elect the PDP flag bearer for the Ahoada East Local Government Constituency Two (2) seat into the Rivers State House of Assembly is illegal, unlawful and unconstitutional and therefore null and void and of no effect whatsoever.
4. A declaration that the subsequent inclusion and forwarding of the name of the 1st Defendant in the list of candidates of the PDP in Rivers state by the 2nd Defendant to the 3rd Defendant as the party’s flag bearer and as the party’s candidate to be sponsored by the party to contest the Ahoada East Local Government Constituency Two (2) seat for the Rivers State House of Assembly in the 2011 is illegal, unlawful and unconstitutional and therefore null and void of no effect whatsoever.
5. An order of court setting aside and or expunging the name of the 1st Defendant from the list of candidates of the PDP in Rivers state forwarded to the 3rd Defendant to be sponsored to contest the House of Assembly Election in 2011 and in its place enlist, replace and or substitute the name of the 1st Defendant with the name of the Plaintiff as winner of the primary Election of the PDP on the 4th of January, 2011 at Ahoada Town to be sponsored by the PDP as its candidate to contest the Rivers State House of Assembly Constituency Two (2) seat in the 2011 general election having won the highest number of votes cast amongst the other qualified and registered PDP candidates.”

The 1st Respondent filed a counter-affidavit of 24 paragraphs. After the respective parties have addressed the court, the learned trial Judge proceeded to strike out the Appellant case for being incompetent. As stated above the court below upheld that Judgment.

The three issues identified by the Appellant as arising from his three grounds of appeal are stated as follows:-

“1. Whether the learned Justices of the Court of Appeal were right in law to have upheld the decision of the Federal High Court which struck out the Appellant’s case This issue was distilled from ground 1 of the grounds of Appeal.

2. Whether the Learned Justices of the Court of Appeal were right in law to have held that there exist conflict in the affidavit evidence before them as far as the Appellant’s originating summons was concerned This issue was distilled from ground 2 of the grounds of Appeal.
3. Whether the Learned Justices of the Court of Appeal were right in law in refusing to hear the case of the Appellant on the merit This issue was distilled from ground 3 of the grounds of Appeal.”

On his own part the 1st Respondent submitted the following two issues for determination:

(a) Whether the Learned Justices of the Court of Appeal, were not right in law in upholding the decision of the Federal High Court that the Appellant’s case was wrongly commenced by way of originating summons

(b) Whether the Learned Justices of the Court of Appeal were not right in law to have held that there exists no legal reason for the Court of Appeal to interfere with the trial court’s refusal to try and determine Appellant’s suit as commenced and constituted by way of originating summons”

The 2nd Respondent has deemed it expedient to adopt the issues formulated by the appellant. The Appellant has deemed it necessary to file Reply briefs to the 1st and 2nd Respondent’s briefs of argument.

The 3rd Respondent in its brief identified two issues for determination as follows:-