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SIR JOHN OCHALA & ORS v. HON. GODWIN ETIM JOHN & ORS

(2019) LPELR-47001(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of March, 2019

CA/C/62/2019


Before Their Lordships

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria


Between

1. SIR JOHN OCHALA
2. BISHOP VICTOR EBONG
3. BASSEY ITA
4. SEN. JOHN OWAN ENOH
5. SEN. VICTOR NDOMA-EGBA
(For himself and on behalf of all other National Assembly Candidates)
6. DR. (MRS.) BASSEY ETIM NAKANDA
(For herself and on behalf of other CRS House of Assembly Candidates) - Appellant(s)

AND

1. HON. GODWIN ETIM JOHN
2. CHIEF FRANCIS EKPENYONG
(For themselves and on behalf of the State Executive Committee of the All Progressives Congress C.R.S.)
3. ALL PROGRESSIVES CONGRESS - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on civil procedure.

FACTS:
This appeal is against the decision of the Federal High Court, Calabar.
The parties at the trial Court were the 1st-3rd Appellants (2nd-4th Defendants), the 3rd Respondent (1st Defendant) and the 1st & 2nd Respondents (Plaintiffs).

The disceptation at the trial Court related to who, as between the 1st-3rd Appellants and the 1st & 2nd Respondents, were the elected State Executive of the 3rd Respondent in Cross River State, whether the action of the 1st-3rd Appellants in forcibly taking over the Secretariat Annex of the 3rd Respondent in Cross River State, was not in disobedience of order of Court and whether the said acts of disobedience of the order of Court should not be reversed. The reliefs claimed by the 1st & 2nd Respondents were as follows:
"1. A DECLARATION that under the applicable provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the rights of parties and/or citizen can be circumscribed by an injunctive order and every subsisting decision of a Court must be obeyed.
2. A DECLARATION that by the Applicable provisions of the 1999 Constitution the decisions of a High Court, including the High Court of the Federal Capital Territory, Abuja and all other Courts established by the Constitution shall be enforced in any part of the federation by all authorities and person and every citizen of Nigeria in under an obligation to obey every subsisting decision of a High Court, until set aside.
3. A DECLARATION that by the Applicable provisions of the 1999 Constitution, the order of his lordship Hon. Justice O. A. Musa Judge of the High Court of the Federal Capital Territory Abuja, delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/CV/O6/2018 and motion No. FCT/HC/BW/M/274/2018, by which the defendants were commanded to recognize and deal with the claimants as the lawful State Executives of 1st defendant in Cross River State, remains the subsisting constitutional order regulating the affairs of the defendants in that area in Cross River State.
4. A DECLARATION that the failure of the defendants to obey the decision of his Lordship, Hon. Justice O. A. Musa, Judge of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September, 2018 in suit NO. FCT/HC/BW/CV/06/2018; motion No. FCT/HC/BW/M/274/2018, nullifying and setting aside the ward, Local Government, and state congresses conducted by 1st defendant on 21st and 22nd days of August 2018, which purportedly produced the 2nd - 4th defendants and Associates as State Executives of the 1st defendant in Cross River State, is an act of impunity and a breach of the 1999 Constitution.
5. A DECLARATION that by a combined interpretation of the applicable provisions of the 1999 Constitution, the Constitution of the 1st defendant and the order of his Lordship Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/M274/2018, it is the claimants, not the 2nd-4th defendants and Associates, who are entitled to hold office as the lawful state executives of the 1st defendant in Cross River State and to take charge, occupy and use the secretariat of the 1st defendant Located at No. 10 Okoi Arikpo Estate Barracks Road Calabar, Cross River State.
6. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, Article 21 A of the 1st defendant's Constitution, and the order of his lordship, Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/CV/106/2018, motion No. FCT/HC/BW/M274/2018, the forceful entry upon, taking over, occupation and retention of the state secretariat annex of the claimants at No. 10 Okoi Arikpo Estate, Barracks Road Calabar since 21st August 2018, without right, constitute not only the offence of fractionalization made punishable under the 1st defendant's extant Constitution, but also a frontal violation of the 1999 Constitution Act, and therefore illegal and void.
7. A DECLARATION that by the Applicable provisions of the 1999 Constitution and Article 21 (A) of the 1st defendant Constitution, the 2nd - 3rd defendants' disobedience of the order of his Lordship Hon. Justice O.A. Musa, Judge, of the High Court of the federal Capital territory Abuja delivered on the 20th day of September, 2018 in suit No. FCT/HE/BW/M/274/2018, by way of the advertisement placed by them at page 22 of the Nigeria Chronicle edition of Monday October 1st, 2018 wherein in their independence day massage of felicitation to the President and Commander-in-Chief of the Armed forces of the Federal Republic of Nigeria, they had falsely presented, and held out themselves to be chairman and secretary respectively of the 1st defendant in Cross River State, not only violates the constitutional order of the 1st defendant, but is also a flagrant breach of the provisions of the 1999 Constitution and therefore illegal.
8. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, and all other applicable judicial precedent in Nigeria, all the acts of the defendants complained herein which are in flagrant disobedience to the order of his Lordship, Hon. Justice O. A. Musa, Judge, of the High Court of the Federal Capital Territory Abuja, delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/CV/106; motion No. FCT/HC/BW/CV/106; Motion No. FCT/HC/BW/M/274/2018, constitute a flagrant violation of the Constitution and therefore illegal and void.
9. AN ORDER of injunction, restraining the 2nd - 4th defendants, by themselves, Associates, servants, agents, privies or consorts forthwith, from further parading or holding out themselves as the lawful State executives of the 1st defendant in Cross River State pending the hearing and determination of suit No. FCT/HC/BW/CV/106/2018 at the High Court of the Federal Capital Territory, Abuja.
10. AN ORDER OF INJUNCTION ordering, commanding or directing 2nd -4th defendants by themselves, their Associates, servants, agents' privies or consorts to immediately, vacate the State secretariat Annex of the 1st defendant in Cross River State Located at No. 10 Okoi Arikpo Estate Barracks Road, Calabar.
11. AN ORDER OF INJUNCTION restraining 2nd-4th defendants, by themselves, their Associates, servants, agents, privies, or consorts, from ever forcefully entering upon, taking over, occupying, or retaining the State Secretariat Annex of the 1st defendant, in Cross River State, or opening, maintaining or operating any parallel Secretariat or office with the insignia of the All Progressives Congress (APC) or in the name of the said party anywhere in Cross River State, pending the determination of suit No. FCT/HC/BW/CV/106/2018 before the High Court of the Federal Capital Territory, Abuja.
12. AN ORDER directing, commanding and compelling the 1st defendant to immediately invoke the provisions of Article 21 (a) (iv) (vi) & (ix) of its Constitution against the 2nd -4th defendants and their associates for operating an illegal parallel state executive structure of the 1st defendant in Cross River State, contrary to the aforesaid provisions of its Constitution, and in violation of the Constitution of the Federal Republic of Nigeria, 1999, as amended."

The action was contested, with the 1st-3rd Appellants and the 3rd Respondent filing preliminary objections, in which they challenged the competence of the action and the jurisdiction of the trial Court to entertain the same. The Court heard the preliminary objections alongside the substantive Originating Summons and in its judgment, it dismissed the preliminary objections and entered judgment on the merits of the Originating Summons in favour of the 1st & 2nd Respondents. All the reliefs claimed in the Originating Summons were granted and the Court proceeded to make what it termed consequential orders. By these "consequential orders" the trial Court transmogrified the action to one dealing with the nominated candidates of the 3rd Respondent for election. The 1st-3rd Appellants were dissatisfied and they appealed against the same. The 3rd Respondent was equally dissatisfied with the decision and appealed against the same in a separate appeal. The 4th-6th Appellants were not parties at the trial Court, but upon their application they were granted leave by the Court of Appeal to appeal against the decision of the trial Court as persons interested.

ISSUES:
The Court of Appeal identified the following sole issue for determination in the appeal of the 1st-3rd Appellants:
"Was the action at the lower Court competent and did the lower Court rightly assume jurisdiction to entertain the action?"

The 4th, 5th & 6th Appellants distilled the following surviving issues for determination:
"1. Whether the learned trial Judge was right when he made the Orders against the present Appellants who were not at any time parties on record.
2. Whether the learned trial Judge was right when he strayed into the domestic jurisdiction of a political party."

DECISION/HELD:
In conclusion, the Court of Appeal allowed the appeal of the 1st-3rd Appellants, and that of the 4th-6th Appellants. The decision of the trial Court was set aside.


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