DR. CHIGBO SAM ELIGWE v. OKPOKIRI NWANAKA OKPOKIRI & ORS

CORAM

PARTIES

DR. CHIGBO SAM ELIGWE    APPELLANTS

 OKPOKIRI NWANAKA OKPOKIRI & ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant and the 1st Respondent contested the primary election of the 2nd Respondent (PDP) with seven others for the Ahoada West Constituency seat in the Rivers State House of Assembly. The 1st Respondent was declared the winner of the said election and submitted his name to the 3rd Respondent (INEC). The Appellant wrote two petitions to the Chairman of the 2nd Respondent’s Panel of Appealcontesting the validity of the election on the grounds, inter alia, that that the said election was marred with irregularities; that the 1st Respondent was not a registered member of the 2nd Respondent at the time of the primary election in addition to the fact the 1st Respondent had not attained the age of 35 years at the time of the primary election amongst others. Not satisfied with the steps taken by the 2nd Respondent, the Appellant filed an originating summons at the Federal High Court where the trial Court upturned the election of the 1st Respondent and ordered that the name of the Appellant be forwarded to the 3rd Respondent as the candidate of the 2nd Respondent for the main election slated on the 26th April, 2011 and also ordered the 3rd Respondent to accept the Appellant as the 2nd Respondent’s candidate. Dissatisfied with the ruling of the trial Court, the 1st Respondent appealed to the Court of Appeal Port Harcourt and also filed a motion for a stay of the execution of the judgment of the trial Court pending the determination of the appeal. Notwithstanding the service of the motion for a stay of execution of the judgment of the trial Court on the parties, the 3rd Respondent conducted the said election as scheduled and declared the Appellant as the winner. The Appellant was duly sworn in as a member representing Ahoada West in the Rivers State House of Assembly. While the appeal was pending, the 1st Respondent filed a motion before the Court of Appeal seeking leave to file additional grounds of appeal. The Appellant filed a notice of preliminary objection on the grounds that the 1st Respondent’s appeal had become academic as in consequence of which the Appellate Court had no jurisdiction to entertain the 1st Respondent’s application to file additional grounds of appeal. The Court of Appeal struck out the Appellant’s notice of preliminary objection and granted leave to the 1st Respondent to file additional grounds of appeal. Piqued by the ruling of the Appellate Court, the Appellant appealed to the Supreme Court

HELD

Appeal Dismissed

ISSUES

1. Whether or not the Court below had jurisdiction to hear the appeal arising from a pre-election matter after the election had been held and the winner sworn-in as a member of the Legislative House for which the election was held?

RATIONES DECIDENDI

INTERLOCUTORY APPEAL – INTERLOCUTORY APPEAL WOULD ONLY BE NECESSARY IF ITS SUCCESS WOULD BRING AN END TO THE SUBSTANTIVE APPEAL

“An interlocutory appeal would only be necessary if its success would bring the hearing of the substantive appeal to an end. The better course would be to proceed with the hearing of the substantive appeal after the Ruling dismissing the Preliminary Objection on jurisdiction, since the jurisdiction issue could be made or included as one of the grounds of appeal after judgment. This approach can only ensure that pre-election matters are dealt with speedily. Filing an interlocutory appeal on these fact amounts to playing for time, a waste of judicial time and litigants resources, I said so in Society Bic S.A. & 2 ors v. Charzin Industries Ltd 2014 2SC (pt II) P.57.”PER RHODES-VIVOUR, JSC

PRINCIPAL ORDER – WHERE THE PRINCIPAL ORDER SOUGHT IS REFUSED, AN INCIDENTAL ORDER CANNOT BE GRANTED

“Where the principal order sought is refused an incidental order cannot be rightly made as there would be no principal order on which such incidental order can stand or lean. See Ofondu v. Niweigha (1993) 2 KLR 1; Olurofemi v. lge (1993) 12 KLR 80; Registered Trustees of Apostolic Church v. Okoro Lemi (1990) 6 NWLR (Pt. 158) 514.”PER N.S. NGWUTA, JSC

ELECTION – A PARTY WHO IS ADJUDGED A CANDIDATE OF HIS PARTY CAN BE ORDERED TO PARTICIPATE IN A RE-RUN ELECTION

“An appellant who wins his appeal and is adjudged as the candidate of his party can be ordered to participate in a re-run or by-election and he being the candidate of his party.” PER J.I. OKORO, J.S.C

SECTION 87 (9) OF THE ELECTORAL ACT, 2010 (AS AMENDED) – PURPOSE OF SECTION 87 (9) OF THE ELECTORAL ACT, 2010 (AS AMENDED)

“Section 87 (9) of the Electoral Act, 2010 (as amended) provides a window of opportunity for aggrieved persons who participated in the primary election of parties to ventilate their grievances before the Federal High Court, High Court of a State or of the Federal Capital Territory.” PER J.I. OKORO, J.S.C

JURISDICTION OF COURT – IMPROPRIETY OF COURT CONFERRING JURISDICTION ON ITSELF

“Court being a creation of the Constitution, cannot therefore for the sake of doing Justice, confer on itself a jurisdiction that is not given to it by the Constitution or by any statute. See Alao v. African Continental Bank (2000) 9 N.W.L.R. (Pt. 672) 264.”PER M. MOHAMMED, JSC

ELECTION – WHETHER AN ASPIRANT WHO CONTESTED AND WON THE PRIMARY ELECTION BUT WAS DENIED THE OPPORTUNITY TO CONTEST THE MAIN ELECTION HAS A CLAIM IN DAMAGES

“An aspirant for elective office, who contested and won the primary election but was denied the opportunity to contest in the main election for which the primaries were conducted, has a claim in damages against the person or authority that prevented him from contesting the election.” PER N.S. NGWUTA, JSC

ELECTION – AN ELECTION TRIBUNAL OR COURT CANNOT DECLARE A PERSON THE WINNER OF AN ELECTION WHERE SUCH PERSON HAS NOT FULLY PARTICIPATED IN ALL STAGES OF THE ELECTION

“Although by reason of the new Section 141 of the Electoral Act 2010 (as amended) an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election, that provision does not operate to oust the jurisdiction of the court”. PER J.I. OKORO, J.S.C.

CONSEQUENTIAL ORDER – MEANING OF A CONSEQUENTIAL ORDER

“A consequential order in its ordinary meaning is an order following from the judgment. See Obayegbona v. Obazee (1972) 5 SC 247; Mimah v. VAB Petroleum Inc (2000) FWLR 810. It is essentially one which makes the principal order effective and effectual or which follows necessarily as being incidental to the principal order in the matter”. PER N.S. NGWUTA, JSC

ELECTION – DENIAL OF A PERSON WHO CONTESTED AND WON THE PRIMARY ELECTION THE RIGHT TO CONTEST THE MAIN ELECTION, IS AN INFRINGMENT OF THE RIGHT HE ACQUIRED BY WINNING THE PRIMARY ELECTION

“To deny a person who contested and won the primary election the right to contest the main election is an infringement of the right he acquired by winning the primary election for which he can sue the person or authority concerned for damages”. PER N.S. NGWUTA, JSC

SECTION 87 (9) OF THE ELECTORAL ACT, 2010 – IMPORT OF SECTION 87 (9) OF THE ELECTORAL ACT, 2010 (AS AMENDED)

“Section 87 (9) of the Electoral Act, 2010 (as amended) provides:
“S.87(9): Notwithstanding the provisions of this Act or rules of a political party an aspirant who complained that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or FCT for redress.” – PER N.S. NGWUTA, JSC

PRE-ELECTION MATTERS – PRE-ELECTION MATTERS WHICH WERE FILED IN THE COURT BEFORE THE HOLDING OF THE ELECTIONS CAN BE HEARD UP TO THE SUPREME COURT NOTWITHSTANDING THE FACT THAT THE SAID ELECTION WAS HELD AND THE WINNER WAS SWORN IN

“There is no controversy that pre-election matters which are filed in the High Court before the holding of the elections can be heard up to the Supreme Court notwithstanding the holding of the election and declaration of results. See Amaechi V INEC (2008) 5 NWLR (pt 1080) 227. Even where the winner of the election has been sworn into office, that does not make the pre-election matter to abate or become an academic exercise.” PER J.I. OKORO, J.S.C

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal Rules, 2011

Electoral Act, 2010(as amended)

Evidence Act 2011

CLICK HERE TO READ FULL JUDGMENT