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CaseLaw

Anyanwu V. Ogunewe (2014) CLR 2(m) (SC)

Judgement delivered on February 7, 2014

Brief

  • Issue of Jurisdiction
  • Jurisdiction of Court
  • Decision of Court
  • Political Party
  • Section 138 (1) of the Electoral Act
  • Section 138 (1) (a) of the Electoral Act 2010
  • Section 87 (9) of the Electoral Act 2010
  • Section 31 (1) of the Electoral Act 2010
  • Section 31(2) of the Electoral Act
  • Section 31(5) of the Electoral Act
  • Section 65 (2) of the 1999 Constitution
  • Order 10 Rules 1 and 3 of the Court of Appeal Rules 2011

Facts

This is an appeal against the judgment of the Court of Appeal, Owerri Division delivered on 9th day of November 2012 dismissing the appellant's appeal against the judgment of the Federal High Court Owerri (the trial court) dated 1st June 2012.

By an originating summons filed on 11/2/2011 before the trial court, the 1st respondent herein, HON. INDEPENDENCE OGUNEWE sought the determination of a number of questions and consequential reliefs in respect thereof against (i) The All Progressives Grand Alliance (APGA), the 2nd respondent herein, (ii) INEC, the 3rd respondent herein and (iii) SENATOR CHRITIANA N.D. ANYANWU, the present appellant. The thrust of the claim was that the plaintiff, HON. INDEPENDENCE OGUNEWE, is a member of APGA and contested the primary election for the Imo East Senatorial Zone to represent the Zone in the 2011 general elections. That the primary election took place on 14/1/2011 with three names indicated on the ballot but only two candidates, the plaintiff and one Chief Nick Oparandu were present and physically contested the election and that he (plaintiff) won the election. It was his contention that SENATOR CHRISTIANA ANYANWU, whose name was also on the ballot, was not a member of APGA on 14/1/2011 when the primary elections were held, as she was, at the time an active member of the Peoples Democratic Party (PDP) and in fact participated in the presidential primary election of that party held at the Eagle Square, Abuja from 13th -14th January 2011.

In their counter affidavits, the 2nd respondent (APGA) and the appellant herein averred that the appellant's name was included on the ballot on 14/1/2011 because she had joined the party after duly resigning her membership of the PDP. Her letter of resignation from the PDP and her membership card for APGA were exhibited to their respective counter affidavits. The 2nd respondent also averred that the appellant was present and duly contested the primary and won the election with the highest number of votes.

In determining the originating summons, the learned trial Judge formulated three issues for determination:

  • 1
    "Whether the use of Originating Summons by the Plaintiff is appropriate in the circumstances and on the facts of this case.
  • 2
    If the answer to issue one is in the affirmative whether the plaintiff has proved this case on the preponderance of evidence; and
  • 3
    If the answer to issue No. 1 is in the negative, what is the appropriate order to make in the peculiar circumstances of this case".

In a considered judgment delivered on 29/3/2011, the learned trial Judge held that having regard to the contentious nature of the suit, the originating summons procedure was not the appropriate method of instituting the action. However, rather than order the filing of pleadings, the court upon the consideration of Sections 31 (1) and 87 (11) of the Electoral Act 2010 (as amended), struck out the suit on the ground that nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days time. The appellant herein (then 3rd defendant), was dissatisfied with the order striking out rather than dismissing the suit and filed a notice of appeal against it at the lower court.

The plaintiff (1st respondent herein) was also dissatisfied with the decision and filed a cross appeal. The two issues raised in the cross appeal were:

  • 1
    Whether an order striking out of the suit instead of an order for filing pleadings was proper in the circumstances of the suit?
  • 2
    Whether it was proper for the lower court to have struck out the suit merely because the National Assembly Elections were scheduled to hold seven days from the delivery of the judgment?

The main appeal was dismissed while the issues raised in the cross appeal were resolved in the cross appellant's favour. The cross appeal was allowed. The appellant was dissatisfied with the dismissal of her appeal and further appealed to this court.

Issues

Whether the Appellant was given a fair hearing by the court below....

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