DR. UCHECHUKWU SAMPSON OGAH V. CHIEF IKECHI EMENIKE & OTHERS (2019)

Background

This appeal arose from a pre-election dispute concerning the All Progressives Congress (APC) governorship primary election in Abia State. Chief Ikechi Emenike, the 1st respondent, commenced an action by originating summons before the High Court of the Federal Capital Territory, Abuja, seeking declarations and mandatory orders against the APC and INEC. He relied, among other things, on an earlier order made in Suit No. HIN/4/2018, contending that the Abia State chapter of the APC led by Dr. Emmanuel Ndukwe was the authentic leadership of the party in the State. He asked the court to compel the APC to forward his name to INEC as its Abia State governorship candidate and to compel INEC to list him as the candidate.

Dr. Uchechukwu Sampson Ogah was not joined as a party when the action was filed. He later became aware of the proceedings and applied to be joined as an interested party. Ogah maintained that he had participated in the relevant APC governorship primary conducted on 2 October 2018, won the primary, and had his name forwarded by the APC to INEC. He also asserted that Emenike participated in the primary but lost. The joinder application was not heard on its merits. After two adjournments, the trial court sat on 29 November 2018, dismissed Ogah’s application for default of appearance, proceeded to hear the substantive action, and granted Emenike’s reliefs.

Ogah appealed to the Court of Appeal. Emenike raised a preliminary objection, arguing that the appeal was incompetent because Ogah had not obtained the necessary leave and because the constitutional time limit for appealing in a pre-election matter could not be extended.

Issues

1. Whether the High Court of the Federal Capital Territory, Abuja, had territorial and subject-matter jurisdiction to entertain the suit.
2. Whether the trial court was right to dismiss Ogah’s application for joinder and proceed without hearing him.
3. Whether the appeal was incompetent for want of leave or because it was filed outside the constitutionally prescribed period.

Ratio Decidendi

The Court of Appeal held that section 285(11) of the Constitution of the Federal Republic of Nigeria 1999, as amended by the Fourth Alteration Act 2017, is the specific provision governing appeals in pre-election matters. It requires an appeal from a decision in a pre-election matter to be filed within 14 days from the date of delivery of the judgment. The provision does not require an appellant to obtain leave before filing such an appeal. Although section 243 of the Constitution contains general provisions relating to appeals requiring leave, the specific and later provision governing pre-election appeals prevails in this context. Since Ogah filed his appeal on 12 December 2018, within 14 days of the decision delivered on 29 November 2018, the appeal was competent. Any order subsequently described as granting leave was surplusage and did not invalidate the appeal.

The court further held that territorial jurisdiction is a fundamental jurisdictional question. It may be raised at any stage, even for the first time before the Supreme Court, without leave. It may also be raised orally or suo motu by the court, provided the parties are given an opportunity to address the issue. The primary election and the material electoral events occurred in Abia State, whereas the suit was filed before the High Court of the Federal Capital Territory. By virtue of section 255(1) of the Constitution, that court lacked territorial jurisdiction over the dispute.

Court Findings

The court found that the action was filed on 22 October 2018 in relation to a primary election conducted on 30 September 2018. It was therefore outside the 14-day period applicable to the commencement of a pre-election action under the constitutional electoral timetable. The trial court consequently lacked jurisdiction to entertain the suit, and the proceedings and judgment were nullities. The court also found that the High Court failed to establish that Ogah or his counsel had been served with a hearing notice for 29 November 2018. The record did not show that the trial judge called for or examined proof of service before dismissing the joinder application.

The appellate court emphasised that when a party is absent and an adjournment is granted, the adjourned date must be communicated to that party, ordinarily by hearing notice. A court cannot properly proceed in the absence of a party who has not been shown to have notice of the hearing. The duty to ensure service is that of the court, not merely the court registry. An agreement allegedly made by counsel to attend on a particular date must be supported by the record; in this case, there was no evidence that Ogah’s counsel had agreed to appear on 29 November 2018.

Dismissal of the joinder application without hearing the applicant deprived Ogah of a fair hearing, particularly because the orders sought directly affected his asserted nomination and electoral interests. The court described the right to be heard before an adverse order as a cardinal principle of justice.

Conclusion

The appeal was allowed. The preliminary objection was dismissed. The proceedings and judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/3097/2018 were declared a nullity and struck out. Costs of N75,000 were awarded to Ogah against the 1st respondent only.

Significance

The decision confirms the strict and specialised procedural regime governing Nigerian pre-election disputes. It clarifies that a timely appeal under section 285(11) does not require leave under the general appellate provisions of section 243. It also reinforces that territorial jurisdiction may be raised at any stage because it goes to the competence of the court. Most importantly, the judgment underscores that expedited electoral proceedings do not displace natural justice: a party seeking joinder must be given notice and a genuine opportunity to present the application before the court makes orders capable of affecting that party’s legal and electoral interests.