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Peter v. Okoye

IGBO PETER

( Representative of the Petitioners for recall of plaintiff in Njikoka Constituency II)

V

ARCHITECT GEORGE IKE OKOYE

INDEPENDENT NATIONAL ELECTORAL COMMISSION

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE CHUKWUEMEKA UBAEZONU, JCA ( Presided )

JOHN AFOLABI FABIYI, JCA ( Read the Lead Judgment )

MUSA DATTIJO MUHAMMAD, JCA

CA/E/148M/2000 

THURSDAY, 5TH APRIL, 2001.

APPEAL - Fresh point on appeal - Raising of - Need to seek and obtain leave of court - Effect of failure to so do

APPEAL - Grounds of appeal - Ground fused with particulars of error Whether sufficient to render ground incompetent

COURT - Application for order of interlocutory injunction - Same seeking to restrain specific constitutional function - Duty on trial court while exercising discretion to grant same

COURT - Trial court - Issues canvassed therebefore -  Failure of to pronounce thereon - Whether Court of Appeal in position to pronounce on same

COURT - Trial courts - Duty on to pronounce on all issues canvassed before it - Effect of failure to so do

ELECTORAL LAW - Legislative - Member of State House of Assembly Status of as representative of his constituency

ELECTORAL LAW - Recall of legislator from State House of Assembly How done

INJUNCTION - Applicant for an order of interlocutory injunction - Where delayed in bringing his application - Duty on to explain delay on his part

INJUNCTION - Application for order of interlocutory injunction - Same seeking to restrain specific constitutional function - Duty on trial court while exercising discretion to grant same

INJUNCTION - Application for order of interlocutory injunction Consideration of image and ego of party while treating same Impropriety of

INJUNCTION - Interlocutory injunction - Factors governing grant of Need for court to consider conduct of parties - Delay as conduct likely to affect grant of interlocutory injunction

INJUNCTION - Interlocutory injunction - Whether can be made against already completed act

INJUNCTION - Interlocutory injunction - Whether can be made against proposed constitutional event

JUDGMENT AND ORDERS - Order incapable of being carried out - Need not to make same

PRACTICE AND PROCEDURE - Application for order of interlocutory injunction - Consideration of image and ego of party while treating same - Impropriety of

PRACTICE AND PROCEDURE - Balance of convenience - Perspective of the doctrine of - Duty to grant an order where applicant will suffer more inconvenience than the respondent if the order is refused PRACTICE AND PROCEDURE - Cases - Determination of - How done

Issues:

1.            Having regard to the facts and circumstances of the case, whether the order of interlocutory injunction made by the learned trial Judge was justified.

2.            Whether the learned trial Judge was right in failing to pronounce on issue canvassed before him.

Facts:

The appeal in this suit emanated from a ruling delivered by the Federal High Court Enugu on 20/10/2000 on an application for interlocutory injunction brought by the respondent as plaintiff.

In the ruling, the High Court restrained the 1st defendant/respondent from taking any step pursuant to recalling the plaintiff from membership of the Anambra State House of Assembly. The 2nd defendant was also restrained from relying on the allegations made in a petition written by Peter Igbo, the appellant against the plaintiff to demand for recall.  All the orders were made pending the determination of the substantive suit.

In the substantive suit the plaintiff/respondent claimed declaration that the aforementioned petition raise serious criminal allegations against public order.  He also claimed a declaration that the 1st defendant cannot rely on the allegation to take steps towards recalling him.

The plaintiff claimed further orders of injunction restraining the defendants and even registered voters from either relying on the petition to recall him or from recalling him at all.  He finally claimed an order setting aside the petition.

After arguments, the order of interlocutory injunction was made as prayed and the appellant as the 1st defendant at the lower court being aggrieved with the ruling has now appealed against the ruling.

In determining the appeal, the Court of Appeal considered the constitutionality of the orders made by the lower court vis-a-vis the validity or otherwise of the whole process or attempts on the recall of the 1st respondent from the House of Assembly.