The appellant and the 3rd respondent are members of the PDP. In 2015 the PDP conducted primaries to enable it choose its candidate for the Ughelli South Constituency in the Delta State House of Assembly, for the General Elections which was held in April, 2015. Both of them contested the primaries.
The plaintiff/3rd respondent claimed he won the primaries, but the 2nd respondent substituted him with the appellant and forwarded the appellant's name to the 1st respondent as the candidate of the PDP for the Ughelli South Constituency at the General Elections. Frustrated by the turn of events the 3rd respondent as plaintiff filed an amended Originating Summons on 21 May, 2015 wherein he sought the determination of the following questions:
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1.
Whether the National Working Committee of the Peoples Democratic Party (PDP) is empowered to conduct primaries and present candidates to Delta State House of Assembly elections scheduled for April, 2015 on behalf of the party.
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2.
Whether the plaintiff having won and was issued the Certificate of Result as the winner of the Peoples Democratic Party (PDP) House of Assembly, Ughelli South Constituency primary election conducted by the National working Committee of the 2nd defendant, can be surreptitiously substituted with the 3rd defendant, by the 1st and 2nd defendants, as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency elections in total disregard of the report of the 2nd defendants Electoral Panel and Electoral Appeal Committee for the conduct of the Delta State House of Assembly primaries held on 29 November, 2014, the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).
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3.
Whether the substitution of the plaintiffs name, Festus Utuama with the name of the 3rd defendant (Mr. Reuben Izeze) as the candidate of the Peoples Democratic Party (PDP) after the plaintiff won the primary election of the Peoples Democratic Party (PDP) to the Delta State House of Assembly Ughelli South Constituency, on 29 November 2014, is not in violation of the Peoples Democratic Party (PDP) Constitution and the plaintiffs right under the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).
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And claimed against the defendants' jointly and severally as follows:
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1.
A declaration that the plaintiff having won and received the certificate of result as the winner of the Ughelli South Constituency, Delta State House of Assembly primaries conducted by the National Working Committee of the 2nd defendant, is the rightful and, lawful candidate of Peoples Democratic Party (PDP) for the Delta State House of Assembly election stated for 11 April, 2015.
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2.
A declaration that the 1st and 2nd defendants' surreptitious substitution of the plaintiffs name with the 3rd defendant's name as the candidate of the Peoples Democratic Party (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 April, 2015 in total disregard of the result of the primaries, report of the Peoples Democratic Parry (PDP) Electoral Panel and, the Peoples Democratic Party (PDP) Electoral Appeal panel is contrary to the Constitution of the Peoples Democratic Party (PDP) Constitution (as amended) and the Electoral Act 2010 (as amended) and therefore unlawful, illegal and of no effect whatsoever.
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3.
A declaration that any step taken by the defendants in furtherance of the unlawful substitution of the plaintiff with the 3rd defendant in disregard of the result of the primaries conducted by the National Working Committee of the Peoples Democratic Parry (PDP), reports of the Peoples Democratic Party (PDP) Electoral Panel, the 1999 Constitution (as amended) the Electoral Act 2010 (as amended) is a nullity.
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4.
An Order reinstating the name of the plaintiff as the lawful and rightful candidate of the Peoples Democratic Parry (PDP) for the Delta State House of Assembly Ughelli South Constituency election slated for 11 April 2015.
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5.
An order nullifying the election of the 3rd defendant into the Delta State House of Assembly, Ughelli South Constituency on 11 April, 2015.
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6.
An order nullifying and or setting aside the certificate of return issued by the 1st defendant to the 3rd defendant on the basis of the election held on 11 April 2015 on the ground that the said election amount to a nullity.
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7.
7. An order directing the 1st defendant to issue a certificate of return to the plaintiff as the duly elected member of the Delta State House of Assembly representing Ughelli South Constituency.
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8.
An order directing the 3rd defendant to refund all monies, salaries, allowances and or benefits collected and received by him as a member representing Ughelli South Constituency in the Delta State House of Assembly from the date of swearing in until judgment is delivered.
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9.
General damages against the defendants, jointly and, severally in the sum of N500,000,000.00 (Five hundred Million Naira).
Affidavit in support of the amended originating summons, counter-affidavit and, reply affidavit were filed. The 2nd and 3rd defendants (i.e. the PDP and the appellant) also filed memorandum of conditional appearances. Let me say straightaway that when a defendant files a conditional appearance, that is an appearance under protest and usually means an appearance to object to the Courts jurisdiction.
As was to be expected the 2nd and 3rd defendants filed similar motions on Notice on 12 November 2015 and 26 November 2015 praying the Court for an order striking out or dismissing the suit in its entirety.
Counsel on both sides filed written addresses, and in a considered judgment delivered on 5, April 2016, the learned trial judge Obile J of a Federal High Court (Warri Judicial Division) upheld the 2nd and 3rd defendants objection stating that: ".......this Court lacks the jurisdiction and competence to entertain and determine this suit because the amended originating summons is invalid, null and void and ought to be struck out and I so hold. This is the conclusion on issue two. Whereas on issue three I hold that this suit is statute barred and ought also to be struck out. Having so held this cause of action cannot be heard and determined on the merits, as doing so will amount to mere academic exercise. In the final analysis, as painful as it might be the only course of action this Court is left with is to strike out this suit. This case is hereby struck out accordingly..."
The plaintiff/3rd respondent filed an appeal with fifteen grounds from which five issues for determination were distilled.
The 2nd and 3rd respondents filed separate notices of Preliminary Objection and also cross-appealed. The preliminary objections were dismissed. The Court of Appeal did not consider the cross-appeals.
The Court of Appeal in its judgment stated that:
"I accordingly set aside the order of the lower Court striking out the suit of the appellant in Suit No. FHC/WR/CS/53/2015. I hold that the originating process by the appellant was properly issued and served on the 1st and 2nd respondents in compliance with the provision of Order 6 Rules 13-17 of the Federal High Court Civil procedure Rules, Section 97 of the Sheriff and Civil Process Act... By this, therefore, I conclude that the appeal is meritorious and it is hereby allowed. The judgment of the lower Court in suit No.FHC/WR/CS/53/2015 delivered on 5 April 2016,...is hereby set aside. The suit is hereby remitted to the Hon. Chief Judge of the Federal High Court for reassignment to another judge of the Federal High Court... For expeditious determination on merit..."
