Ikpeazu Vs Ogah & 2 Ors: Osisioma High Court Update! — Ugochukwu Amaraizu Esq

By Ikenga Chronicles July 26, 2016

Ikpeazu Vs Ogah & 2 Ors: Osisioma High Court Update! — Ugochukwu Amaraizu Esq

The matter was slated for hearing of the preliminary objection and application filed by Counsel to the 1st Defendant- Dr Uche Ogah. Ogah, through his Counsel, had filed a Motion dated 11/07/2016. The said Motion was supported by an affidavit of 17 paragraphs with a written address. The Counsel prayed the Court to strike out the suit on the ground that the Osisioma High Court lacks jurisdiction to hear the matter. Ogah’s Counsel, after adopting his written address, adumbrated orally. In his oral address, he submitted that the five DECLARATORY reliefs sought by Ikpeazu are predicated and founded on section 143(1) & (2) of the Electoral Act, 2010 ( As Amended ). Secondly, he submitted that they are also based on the judgment of the Court in suit No FHC/ABJ/CS/71/2016 ( ie the Federal High Court judgment ). He is also argued that the claimant relied on the Notice of Appeal against the aforesaid judgment. He further submitted that the issues for determination numbered A,B,C were also predicated, circumscribed and confined to the aforesaid judgment. According the learned SAN representing Ogah, it is settled law that it is a claim before the Court that confers jurisdiction on the Court. He cited Adeyemi’s case reported in (1976) 9-10 SC, pg 31 & 49. He argued that the judgment of the Federal High Court cannot be a subject of adjudication before Osisioma High Court in view of section section 143(1) & (2). According to him, the Courts empowered to adjudicate over matters as contemplated in the aforementioned sections are the Tribunal, Court of Appeal sitting as a Tribunal or the Supreme Court. He referred to the celebrated case of Madukolu vs Nkemdilim and submitted that the subject matter does not fall within the jurisdiction of Osisioma High Court. According to the learned SAN, the Court cannot interpret what it does not have jurisdiction to interpret. He finally submitted that the suit is an abuse of Court process. He insisted that the proper thing to do would have been to proceed to the Court of Appeal to complain.

In his reply to the above submissions of Counsel to the 1st Defendant, Barr Nkume representing Dr Okezie Ikpeazu, first of all addressed the issue of abuse of Court process. He pointed out that the address of the learned SAN is a mere submission not being anchored on any law or precedence. He observed that Ogah’s Counsel did not submit any authority on that point. Nkume argued that parties in the present suit are not parties before the Federal High Court. Reliefs sought in the present case are completely different from the reliefs sought at the Federal High Court. Also, the cause of action in both matters are completely different. According Nkume, the cause of action in the present suit bothers on the right of a citizen after the aforesaid judgment of the Federal High Court. He submitted that Ikpeazu actually took the right step by filing Notice of Appeal and Stay of Execution to the said judgment in question. The Osisioma High Court is not sitting on appeal over the Federal High Court judgment. With respect to section 143(1) & (2) of the Electoral Act, 2010 ( As Amended ), Nkume submitted that the State High Court under the Constitution of the Federal Republic of Nigeria is vested with unlimited jurisdiction to hear matters that bother on the right of a citizen to complain whether he or she has a right of appeal. Other arguments and authorities cited are as contained in the written address in support of the Counter Affidavit.

INEC did not join issues by filing papers on the issue of lack of jurisdiction.

Appearing for the Chief Judge was a Counsel from the office of the Attorney General of the State, who argued that the matter also centered on the issue of swearing in of the 1st defendant. He submitted that the Court has inherent jurisdiction to determine whether the claimant has a right of appeal. He observed that the 1st defendant is not denying that the Claimant has lodged an appeal. Having appealed, why being in a hurry to be sworn in?

The State Counsel addressed the is issue of service out of jurisdiction. He pointed out that the 1st Defendant consented to receive service within jurisdiction. He referred to the case of Broad Bank Nig. Ltd vs Olayiwola & sons ltd & Anor (2005) 3 NWLR ( Pat 912 ) pg 434 particularly ratio 11. He submitted that it is in line with Order 5 Rule 1 of the Abia State High Court Rules.

On reply on point of law, Counsel to the 1st defendant first of all addressed the issue of service within jurisdiction. He observed that they accepted service without prejudice to their objection. He argued that Rules of Court cannot compete with statutory provisions.

Again, he argued that matters are raised at large. The originating summons was brought under a subject matter. They brought it under the Electoral Act and therefore, cannot go outside it. He argued that if one files a case in a court that does not have jurisdiction, if becomes an abuse of Court process. It must not be the same parties, same subject matter or reliefs.

On Motion seeking to set aside the Order of the Court, Counsel to the 1st defendant briefly submitted that no amount of urgency can make a Court that has no jurisdiction issue an Order. O.O Nkume Esq sharply replied by saying that a party cannot file an appeal against an Order and still returns to ask the lower Court to vacate the same Order. That according to Nkume, will amount to abuse of Court process. The learned SAN submitted that Notice of Appeal does not operate as a stay. What the 1st defendant did is governed by the doctrine of election. If one succeeds, you abandon the other.

Well, let’s see what the Court will rule on the issue of jurisdiction. As for the application asking the Court to set aside its Order, I wonder how possible that one will be.

After hearing all the Counsel in the matter, the case was finally adjourned to 19th September, 2016 for Ruling on the issue of jurisdiction and Motion seeking to set aside the Order of Osisioma High Court. It is the Ruling of September 19 that will determine whether the Court will proceed into the substantive suit.

Meanwhile, information we received after the Court at Osisioma is that Ikpeazu’s Motion For Stay of Execution against Justice Okon Abang’s judgment will be heard at the Court of Appeal Abuja today being Tuesday- 26th September, 2016. I hereby plead with my friends to relax as we will continue to feed you with the right information. Thank you and God bless.

Long live Dr Okezie Victor Ikpeazu!
Long live Abia State!!

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