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APC v. ASEKOMHE & ORS (2020)

APC v. ASEKOMHE & ORS

(2020)LCN/14356(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/B/128/2020

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

  1. KENNETH O. ASEKOMHE (Suing For Himself And On Behalf Of The State Executive Committee Members Of The All Progressives Congress, Edo State Chapter, Save Those Whom May Expressly Dissociate Themselves From This Suit) 2. HON. MATTHEW AIGBUHUENZE IDUORIYEKEMWEN 3. COMRADE ADAMS ALIYU OSHIOMHOLE (Sued For Himself And On Behalf Of The National Working Committee Members Of The All Progressives Congress) 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 5. INSPECTOR GENERAL OF POLICE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN MAKE A RESTRAINING ORDER WHERE THERE IS A CHALLENGE TO ITS JURISDICTION

However it is settled that a Court should not ordinary make a restraining order in the face of a rightful or wrongful challenge to its jurisdiction, except in circumstances where there is evidence that the res would be destroyed in the immediate future.
See one of the recent authorities on this suit BRITTANIA-U (NIG.) LTD V. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 @ 602 PARAS D-F when the Court held that:
“When its jurisdiction to hear and determine any cause before it is in issue, it is a threshold matter which the Court must determine before taking any further step in the case for proceeding conducted without jurisdiction is and remains a nullity. See PEENOK INV. LTD. V. HOTEL PRESIDENTIAL LTD (1982See PEENOK INV. LTD. NATIONAL BANK V. SOYOYE (1977) 5 SC 181.
At a challenge to its jurisdiction, the only jurisdiction the Court can exercise is to determine whether or not it has jurisdiction in the matter. The order made on 27/1/2014 to extend the life span of a spent order, in the face of a challenge to its jurisdiction not yet decided, is a nullity.”
2. Court cannot make a restraining order when its jurisdiction is being challenged. In NDIC V. C.B.N. (2002) 7 NWLR (Pt.766) 272 @ 291-292 PARA H-H, the Court:
“At this stage it may be pointed out that the Respondent sought an interlocutory injunction pending the determination of the substantive suit on the basis, in law, that there is a serious question to be tried.
But first, it has to be plain to everyone, not least the Courts, that the Court has jurisdiction to entertain the suit. The Court must not give an order in the suit affecting the defendants until the issue of jurisdiction is settled when it has been raised.” PER OGUNWUMIJU, J.C.A.

WHETHER OR NOT THE COURTS LACK JURISDICTION TO RESTRAIN A POLITICAL PARTY FROM CONDUCTING ITS PRIMARIES OR INEC FROM CONDUCTING ELECTION

It has always been the general attitude of the Courts that the Courts lack jurisdiction to restrain a political party from conducting its primaries or INEC from conducting election. It is an entrenched principle of democracy established by the Courts and by statutes.
In OKASIA V. OGUEBEGO & ORS (2018) LPELR–24520 (CA) @ PG.29-30, PARAS C-A this Court held as follows:-
“…by Section 87 (10) of the Electoral Act, 2010 (as amended) Courts are forbidden from stopping the holding of primaries or general election under the Act pending the determination of a suit relating to nomination. It follows therefore that a Court ought not to reverse the result of primaries properly held under the Act even if that was done during the pendency of a suit relating thereto on that account only. It also follows that the order of the lower Court stated above could not be right. This is the more so since the power to conduct primaries rests in the National Executive Committee of the appellant. See EMENIKE V. PDP (2012) 12 NWLR (1315) 556 and EMEKA V. OKADIGBO (2012) 18 NWLR (1331) 55.”PER OGUNWUMIJU, J.C.A.

WHETHER OR NOT A TRIAL COURT HAS THE POWER TO MAKE A PRELIMINARY FINDING TO ASCERTAIN WHETHER IT HAS JURISDICTION OVER A MATTER BEFORE IT

The law is settled that “a trial Court has the power to make a preliminary finding to ascertain whether it has jurisdiction over a matter before it” – per Chukwuma-Eneh, JSC in Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed & Ors. (2013) 15 NWLR (Pt. 1377) 274 at 328. See also N.D.I.C. v. C.B.N. (2002) 7 NWLR (Pt. 766) 272 at 296.
The decision of the trial Court to ascertain whether or not it has jurisdiction in its final judgment of the substantive originating summons, is a matter of exercise of the Court’s discretion and the appellant could only have appealed to this Court with leave of Court. PER OGUNWUMIJU, J.C.A.

WHETHER OR NOT WHERE LEAVE IS REQUIRED AND IT WAS NOT OBTAINED, THE PROCESS FILED WITHOUT LEAVE IS INCOMPETENT
The law is settled that where leave is required and it was not obtained, the process filed without leave is incompetent. See Owhotemu-Kowo v. State (1983) 5 SC 17; Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Faleye v. Otapo (1987) 4 NWLR (Pt. 64) 186; Metal Construction (West Africa) Ltd v. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299; C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 187 and Opuiyo v. Omoniwari (2007) 6 SC (Pt. 1) 35. PER OGUNWUMIJU, J.C.A.

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Hon. Justice Umar of the Federal High Court sitting at Benin City delivered on 8th day of June, 2020. The action of the 1st & 2nd Respondents is a pre-election matter challenging the mode to be adopted in the primaries election of the Appellant for the nomination of the flag bearer of the party- All Progressives Congress (APC) in the forth coming Governorship election of Edo State, coming up in September, 2020 whether it is going to be direct as agreed upon by the Appellant on 21st of May, 2020 or indirect as the 1st & 2nd respondents are contending.

The 1st & 2nd Respondents had asked for the following reliefs from the trial Court as set out in pages 149-153 of the Record as follows:
AND THE PLAINTIFFS CLAIM against the Defendants jointly and or severally as follows:
i) A DECLARATION that the 1st Defendant’s National Working Committee’s purported decision of 21st day of May 2020 that direct primary election should be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant in Edo

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State is null and void or at the least inchoate and unenforceable not having been proposed to or approved by the 1st Defendant’s National Executive committee as mandatorily required by Articles 13.4(v) and 20 (v) of the 1st Defendant’s Constitution thereby violating Section 87 (1) and (2) of the Electoral Act 2010 as amended.
ii) A DECLARATION that having regard to the provisions of Section 87 (1) and (2) of the Electoral Act 2010 as amended Articles 13.3(ii), 13.3(iii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive Committee dated 30th day of August, 2018, the National Working Committee of the 1st Defendant is bereft of any vires to dictate or determine the mode of primary election to be adopted for the selection/nomination of the 1st Defendant’s gubernatorial candidate for Edo State at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September, 2020 or any other date it may determine, the power to determine the mode of primary election having been expressly granted by the 1st Defendant’s National Executive Committee to the State Chapters of

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the 1st Defendant.
iii) A DECLARATION that the purported decision made on 21st of May 2020 by the National Working Committee of the 1st Defendant presided over by the 2nd Defendant, which dictated or ordered that direct primary election shall be adopted for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election scheduled to hold on the 19th day of September, 2020 is null and void being contrary to the resolution of the 1st Defendant’s National Executive committee which resolved on 30th day of August, 2018 that each State Chapter of the 1st Defendant shall determine the mode of primary election to be adopted for the selection/nomination of the 1st Defendant’s candidate at an election to be conducted by the 3rd Defendant (INEC)
iv) A DECLARATION that having regard to the provisions of Section 87(1) and (2) of the Electoral Act 2010 as amended, Articles 13.3(ii), 13.3(iii) and 13.3(vi) of the 1st Defendant’s Constitution and the resolution of its National Executive committee dated 30th day of August, 2018, the primary election for the selection/nomination of the 1st

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Defendant candidate for the Edo State gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September, 2020 or any other date it may determine falls to be conducted in accordance with the resolution passed by the Edo State Chapter of the 1st Defendant which adopted the indirect primary election method for the selection/nomination of the 1st Defendant’s candidate at the gubernatorial election to be conducted by the 3rd Defendant on the 19th day of September, 2020 or any other date it may determine.
v) A DECLARATION that having regard to the provisions of Section 85(2), 87(1)(2) and (3) of the Electoral Act 2010 as amended, the 3rd Defendant can only legally and competently attend, observe and issue a report only in respect of the indirect primary election for the selection/nomination of the Edo State gubernatorial candidate of the 1st Defendant for the gubernatorial election which is in conformance with the resolution of the 1st Defendant’s National Executive Committee dated 30th day of August, 2018 and the resolution of the Edo State Chapter of the 1st Defendant adopting indirect primary election.
vi) A DECLARATION

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that the purported order of the National Working Committee of the 1st Defendant (acting under the auspices of the 2nd Defendant) directing the adoption of direct primary election for the selection/nomination of the 1st Defendant’s gubernatorial candidate in Edo State at the gubernatorial election to be conducted by the 3rd Defendant on the 19th of September, 2020 or any other date it may determine is in any event incompatible with or in contravention of both the provisions of the Edo State Dangerous Infection Diseases (Emergency Prevention) Regulations, 2020, which imposed restrictive measures to stem the rampaging Corona Virus (Covid-19) in Edo State and the provisions of Section 87(3) of the Electoral Act 2010 as amended, which mandatorily prescribes as a precondition for the adoption of the direct primary mode that the party “shall ensure that all aspirants are given equal opportunity of being voted for by members of the party” and is accordingly unenforceable, illegal null and void.
vii) AN ORDER NULLIFYING AND OR SETTING ASIDE the purported decision made on 21st May, 2020 by the National Working Committee of the 1st Defendant

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presided over by the 2nd Defendant, which directed the adoption of direct primary election as the mode for the selection/nomination of the 1st Defendant’s gubernatorial candidate for the Edo State governorship election scheduled to hold by the 3rd Defendant on the 19th of September, 2020 or any other date determined by the 3rd Defendant.
viii) AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the 1st and 2nd Defendants from carrying out the purported decision made on 21st May 2020 by the National Working Committee of the 1st Defendant presided over by the 2nd Defendant, which dictated or ordered that direct primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election.
ix) AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the 3rd Defendant, its servants, agent, officers or privies or otherwise howsoever from attending, observing or issuing any report in respect of any purported direct primary election conducted pursuance to the purported decision made on 21st May, 2020 by the 1st Defendant’s National Working Committee which illegally foisted direct primary election

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as the mode for the conduct of primary election for the selection/nomination of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election.
x) AN ORDER OF MANDATORY INJUNCTION directing the 3rd Defendant its servants, agents, officers or privies or otherwise howsoever to attend, observe and issue a report in respect of only the indirect primary election of the 1st Defendant to selection/nomination its gubernatorial candidate at the gubernatorial election to be conducted on the 19th of September 2020 or any other date it may determine, which is the primary conducted in accordance with the resolution of the 1st Defendant’s National Executive Committee of 30th August, 2018 and the resolution of the Edo State Chapter of the 1st Defendant dated 22nd May, 2020.
xi) AN ORDER OF MANDATORY INJUNCTION DIRECTING the 4th Defendant, his men, officers, agents, or otherwise howsoever to stop or prevent the 1st-3rd Defendants from carrying out or giving effect to the purported decision made on 21st May, 2020 by the National Working Committee of the 1st Defendant presided over by the 2nd Defendant, which directed or ordered that

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direct primary election shall be conducted for the selection of the gubernatorial candidate of the 1st Defendant for the Edo State governorship election by the deployment of such force as they deem reasonably necessary.

Below for clarification is the record of proceedings of the trial Court on 8th of June, 2020 which gave rise to this appeal. It is on pages 914-917 of the Record of Appeal and it is set out below:
RULING
“The business of the Court today as ordered by this Court is for parties to show cause why the application ex parte moved on the 2nd of June, 2020 should not be granted today. In short, the proceeding of the Court today is to show cause why the motion for injunction ex parte should not be granted.
Senior Counsel for the 1st Defendant Ogbodu SAN has filed two applications one to show cause and the other an application for objection to the jurisdiction of this Court.
Otaru SAN Senior counsel to the 2nd Respondent has also filed 2 applications. One to show cause and the other a Preliminary Objection to the jurisdiction of this Court.
Counsel to the 3rd Defendant/Respondent Owolabi Mrs. has filed no paper likewise

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the 4th Respondent,
Doglas Ogbankwa, Esq., applied to be joined and sought to be heard. Mozia SAN opposed that on the ground that it was not ripe for hearing and that they have 7 days within which to respond. I concede that the application for joinder is not ripe for hearing and he can be heard at the appropriate time or at any time as the rules of Court provides.
The substantive application is the hearing of the originating summons to determine the right of parties by affidavit evidence. I take judicial notice of the fact that this is an election related case of which time is of essence.
I have also considered that the justice of this matter demands that none of the parties should steal a match on the other or do any act to render nugatory the final determination of the substantive matter by this Court. Accordingly and pursuant to Order 56 Rule 1 of the Federal High Court Civil Procedure Rules which provides that:
“Subject to particular rules, the Court may in any cause and matter make any order which it considers necessary for doing justice whether the order has been expressly asked for by the person entitled to the benefit of the

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order or not.”
And also under the inherent powers of this Court I find it necessary to order as follows:
1. That all parties to this suit and their privies are hereby ordered not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st Defendant to conduct or hold the 1st Defendant’s Primary Election coming up next as scheduled by the 3rd Defendant pending the hearing and determination of this suit.
2. That all applications in this suit and the responses of parties shall be heard alongside the Originating Summons.
3. That party are hereby directed to file and serve their responses if any to the processes served on them within 2 days from today.
4. That the hearing of this suit is fixed for Thursday the 11th of June, 2020 for hearing of all the applications together with the Originating Summons.
This is the ruling of this Court.”

The Appellant being dissatisfied with the first head of the order filed an appeal against the order of the Court. The Appellant distilled a sole issue for determination in this appeal as follows was taken:
Whether having

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regards to the extant laws the Court below was right in making the order it made in the Ruling unsolicited without hearing the Motion/Preliminary Objection challenging the jurisdiction of the Court to hear the entire case.

At the hearing of the appeal, the 1st & 2nd Respondents preliminary objection to the hearing of the appeal filed on 17th of June, 2020 with the following grounds was taken:
1. The instant appeal is an interlocutory appeal filed without the leave of this Honourable Court or that of the trial Court.
2. The sole issue formulated for determination in the Appellant’s brief of argument does not emanate from the sole ground of appeal in the Notice of Appeal dated 10th of June, 2020.

The objections were argued in the 1st & 2nd Respondents’ brief settled by Ken Mozia SAN, John Olusegun Odubela SAN, Robert Emukperuo Esq., Santos Owootori Esq., Oladipo Osinowo Esq. On the first head of objection, learned Counsel argued that the position of the law is trite that a ground of appeal questioning the exercise of discretion by a lower Court is a ground of mixed law and fact and of relevance is the case of COKER V. UBA PLC

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(1997) LPELR – 880 (SC).

By the provision of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), where an appeal is against an interlocutory decision, and the decision is not on pure law, the leave of the trial Court or that of this Court is mandatorily required and failure of the Appellant to so seek and obtain the requisite leave renders the appeal incompetent.

Counsel submitted that clearly the argument that the Orders made were unsolicited does not emanate from the Notice of Appeal and cannot be sustained in the circumstance as issues formulated for determination takes root from the ground of appeal. Counsel cited GLOBE FISHING IND. LTD V. COKER (1990) 7 NWLR (Pt.162) 265, ONIYIDO V. AJEMBA (1991) 4 NWLR (Pt. 184) 203. learned 1st & 2nd Respondents’ Counsel argued that the ground of appeal revolves around the exercise of discretion by the trial Court in adjourning the suit for hearing of the Notice of Preliminary Objection along with the substantive suit (which the Appellant termed as “disregard” of its application) and also an Order of status quo (which the Appellant

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described as an Order determining the entire case).

In reply, learned Appellant’s Counsel submitted that the decision in OJOBO V. MORO (2019) 17 NWLR PT. 1700 Pg. 166 given by the Supreme Court has settled the issue of leave to appeal in election and pre-election matters more so when the Constitution has improved time limit to file an action. The Supreme Court decided that Section 241(1)(b) cannot be applicable to such genre of cases in the light of Section 285(11) of the Constitution.

Learned Appellant’s Counsel also argued that the issue of jurisdiction and denial of fair hearing was raised by the Appellant. Also that parties argue issue and not the ground of appeal. Counsel insisted that the wordings of the issue must only related to the grounds of appeal and not be a repetition of same.

OPINION ON PRELIMINARY OBJECTION
The Supreme Court has held that there is no requirement to seek and obtain leave to appeal in pre-election/election related matters. The Court held inOJOBO V. MORO (2019) 17 NWLR (PT.1700)166 @ 178 PARAS E-D as follows at pg. 178:
“Obviously, with the amendment to Section 285 of the Constitution by the Fourth Alteration Act, No.21 of 2018, ​

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which catapulted pre-election matters to the same pedestal as election petition cases, it is not business as usual, Section 285(11) now stipulates that –
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment.
Litigants and counsel alike have, over the years, learnt to live with the fact that election petitions are time bound and act accordingly. With pre-election matters being time bound, they must learn that pre-elections matters are outside the realm of civil proceedings, therefore, applications for leave to appeal, are now out of bounds. Thus, the objection raised by the first respondent is overruled.”
See also OBAZEE V. EKHOSUEHI (2019) 17 NWLR (PT. 1701)245 @ 257 PARA D where the Court held that:
“This Court in All Progressives Congress (APC) v. Senator kabiru Garba Marafa (Unreported) decision in SC. 377/2019 delivered on 24 May, 2019 … held at page 34 per Galumje JSC following Obih v. Mbakwe (1984) LPELR 2172 (SC), (1984) 1 SCNLR 192. That election or pre-election matters are in a class of their

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own and time is of the essence. That being the case the provision of Section 233(3) of the Constitution does not apply to elections and related matters.”
That decision Law of the Supreme Court in relation to the dispensation with the need to seek and obtain leave in pre-election matter pursuant to Section 233 (2) of the 1999 Constitution relates mutantis mutandis to the similar Section 241 (1) (b) of the 1999 Constitution governing leave to approach the Court of Appeal in pre-election matters. In the light of the present stand of the Supreme Court, the objection to the appeal on failure to seek and obtain leave is overruled.

On the 2nd (second) head of objection, it is my view that the couching of an issue for determination may not necessarily be in the words of the complaints as stated in the ground of appeal. So long as an issue is formulated which relates to the ground of appeal, that issue is a competent issue for determination. It is my humble view that the issue as distilled relates with the ground of appeal. The objection on that head is overruled.

Now, to the substance of this appeal. In the Appellant’s brief filed by H.O.

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Ogbodu SAN, A.I.Osarenkhoe Esq., P.E. Uwadiea Esq., Donglas Ogbonkwa Esq., the learned Appellant’s Counsel submitted that all application properly brought before a Court of law must be heard and determined before the case is terminated. He cited ILORI V. BENSON (2000) 9 NWLR (Pt.673) 570. Also when an application is pending before the Court which by its nature is capable of being styled a Preliminary Objection to the case at hand, such application must be determined before proceeding with the matter. Counsel submitted that where the issue of jurisdiction is raised by a Preliminary Objection, either in a motion or in the pleadings, it must be determined before anything else because where a Court has no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility. Relied on A.G. ANAMBRA V. A.G. FED. (1993) 6 NWLR (Pt.302) 692 at Pp. 742, Paras; B-E; 7349, Paras. F-G; 735, Paras. D-E.

Counsel further submitted that the injunctive order not to do anything in relation to the election in effect determined the entire case at interlocutory stage when the Court had no jurisdiction to do so. More so, as the Court

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did not hear from the parties especially the Appellant the motion for injunction and the process showing cause pending before doing so and thereby breached the Appellant’s right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Supreme Court had held in the case of PDP V. INEC (1999) 11 NWLR (Pt. 626) 200 as well as numerous other cases that one of the propositions that are fundamental to our law and our system of justice is that a person whose rights and interest are likely to be affected by a decision must be heard before a decision is taken.

Learned 1st & 2nd Respondents’ Counsel in reply submitted that a calm consideration of the proceedings and Ruling of the trial Court of 8th June, 2020, clearly show that the trial Court directed that the Appellant’s Notice of Preliminary Objection shall be heard along with the substantive suit and also made an Order for status quo to prevent parties from taking steps that will destroy the res.

Counsel argued that the directive of the trial Court to hear the Notice of Preliminary Objection along with substantive

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suit cannot be said to amount to “disregard” of the said application.

By the provision of Order 29 of the Federal High Court (Civil Procedure) Rules, 2019, the trial Court can hear an application disputing the jurisdiction of the Court along with the substantive suit. Counsel submitted that of utmost assistance to the Court in the case of IKECHUKWU V. NWOYE & ANOR (2013) LPELR – 20349 (CA), wherein the Court in considering the provisions of Order 29 held that the decision of the trial Court to hear objection along with the substantive suit is supported by law.

Counsel further argued that it is also clear from the Ruling of the trial Court that the Court did not make an Order determining the entire case before it. Also that it is clear and apparent from the Ruling of the trial Court that the trial Court directed parties not to take steps to overreach the proceedings before the Court.

1st & 2nd Respondents submitted that the argument of the Appellant cannot be substantiated in view of what truly transpired before the trial Court and that it is clear from the proceedings of the trial Court that the Court did not say it

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would not hear and determine applications before it but that the applications would be heard along with the substantive suit. Similarly, the argument of the Appellant that the Orders made was unsolicited is unfounded. Counsel argued that from the terms of the Ruling it was made in the overall interest of justice to particularly prevent parties from overreaching the subject matter before the Court. By the provisions of Order 56 Rule 1 of the rules of the trial Court, the trial Court is clearly empowered to have made the Orders made on 8th June, 2020, in the circumstance of the case of this appeal.

OPINION
In my humble view, the only real question for determination in this appeal can be rightly couched as follows:
Whether the learned trial Court judiciously exercised its discretion to make the injunctive orders on the parties not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st Defendant to conduct or hold the 1st Defendant Primary Election pending the hearing and determination of the substantive suit.
The Appellant’s arguments anchor on the following planks

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(i) The lower Court ought not to have disregard its motion or preliminary objection challenging the jurisdiction before making the injunctive order.
(ii) The preservative “order in effect determine the entire case”.
(iii) The lower Court did not hear the parties on the injunctive orders and the Appellant’s right to fair hearing was breached.
It is my humble view that at this stage of the proceedings of the trial Court, the issue of the jurisdiction of the trial Court to determine the substantive suit before it cannot be brought up to this Court for determination since the trial Court has not made a decision one way or the other on that head. I am also of the firm but humble view that the issue of the Constitutionality of Section 87 (10) of the Electoral Act (2010) as amended vis-a-vis the wide and inherent powers of the Court as enshrined in Section 6(6) of the 1999 and inherent power of the Constitution (as altered) is not the immediate issue for consideration. That is a substantive point of law also yet to be determined by the trial Court. There is no doubt that the learned trial Judge has the inherent right to exercise

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discretionary powers as donated by Order 56 Rule 1 of the Federal High Court Civil Procedure Rules 2019 even when such exercise of judicial discretion as in this case had not been asked for by any party outside the processes seeking and opposing the exercise of such powers by the parties. I will not now delve into the question of whether the inherent powers of the Court to administer justice can override statute. However it is settled that a Court should not ordinary make a restraining order in the face of a rightful or wrongful challenge to its jurisdiction, except in circumstances where there is evidence that the res would be destroyed in the immediate future.
See one of the recent authorities on this suit BRITTANIA-U (NIG.) LTD V. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 @ 602 PARAS D-F when the Court held that:
“When its jurisdiction to hear and determine any cause before it is in issue, it is a threshold matter which the Court must determine before taking any further step in the case for proceeding conducted without jurisdiction is and remains a nullity. See PEENOK INV. LTD. V. HOTEL PRESIDENTIAL LTD (1982) a nullity.

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See PEENOK INV. LTD. NATIONAL BANK V. SOYOYE (1977) 5 SC 181.
At a challenge to its jurisdiction, the only jurisdiction the Court can exercise is to determine whether or not it has jurisdiction in the matter. The order made on 27/1/2014 to extend the life span of a spent order, in the face of a challenge to its jurisdiction not yet decided, is a nullity.”
2. Court cannot make a restraining order when its jurisdiction is being challenged. In NDIC V. C.B.N. (2002) 7 NWLR (Pt.766) 272 @ 291-292 PARA H-H, the Court:
“At this stage it may be pointed out that the Respondent sought an interlocutory injunction pending the determination of the substantive suit on the basis, in law, that there is a serious question to be tried.
But first, it has to be plain to everyone, not least the Courts, that the Court has jurisdiction to entertain the suit. The Court must not give an order in the suit affecting the defendants until the issue of jurisdiction is settled when it has been raised.”
There was no pretence by even the 1st & 2nd Respondents that they feared that the ‘res’ would be destroyed in the immediate future or

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before the 11th day of June which was the next date of adjournment. What is the ‘res’ in this claim at the trial Court? The ‘res’ is the modus to be adopted by the Appellant to select its candidate at the primaries. It is an essentially indestructible ‘res’. For the purposes of argument if the primaries were held by the parties contrary to how the 1st & 2nd Respondents (Plaintiffs at trial) wanted it, at the determination of the case, whatever the party is held to have done can be set aside if found illegal by the Courts.
It has always been the general attitude of the Courts that the Courts lack jurisdiction to restrain a political party from conducting its primaries or INEC from conducting election. It is an entrenched principle of democracy established by the Courts and by statutes.
In OKASIA V. OGUEBEGO & ORS (2018) LPELR–24520 (CA) @ PG.29-30, PARAS C-A this Court held as follows:-
“…by Section 87 (10) of the Electoral Act, 2010 (as amended) Courts are forbidden from stopping the holding of primaries or general election under the Act pending the determination of a suit relating

23

to nomination. It follows therefore that a Court ought not to reverse the result of primaries properly held under the Act even if that was done during the pendency of a suit relating thereto on that account only. It also follows that the order of the lower Court stated above could not be right. This is the more so since the power to conduct primaries rests in the National Executive Committee of the appellant. See EMENIKE V. PDP (2012) 12 NWLR (1315) 556 and EMEKA V. OKADIGBO (2012) 18 NWLR (1331) 55.”
Also in PAULINE MIANAEKERE V. PEOPLES DEMOCATICE PARTY & ORS (2014) LPELR-22987 (CA) @ PG.31, PARAS E-F, the Court held as follows:
“This is moreso, if one considers the provisions of Section 87(10) of the Act which clearly prevents a Court from stopping the holding of primaries or general election pending the determination of a suit.”
​Let us look at the overall circumstances of this case. The suit was filed by the 1st & 2nd Respondents on 2nd of June, 2020 with affidavit of urgency etc. On the same 2nd of June, 2020, the trial Court ordered the Appellant to show cause why the motion ex parte for injunction against the

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Appellant should not be granted. On the 5th of June, 2020, the parties were present in Court having filed processes as ordered. The motion for joinder was held to be premature for hearing. The Court rightly held that the substantive application would be given accelerated hearing. The Court also held, that:
“I have also considered that the justice of this matter demands none of the parties should steal a match on the other or do any action to render nugatory the final determination of the substantive matter by the Court.”
If the learned trial Judge had held his peace at that point and verbally warned parties as is usually done in that type of situation, the Appellants would have had nothing to rush here to appeal against. However the learned trial Court, without any prompting on record by any of the Counsel proceeded to give the problematic order to the effect that the Appellant cannot do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the to conduct or hold the Primary Election pending the determination of the substantive suit. That injunctive order had the effect of nearly making it

25

impossible for the Appellant to hold any preparation for its primaries. The Court then went on to give other housekeeping Orders.
Equity and substantial justice in any situation is a matter of common sense and common good conscience with which we are all endowed. For example, this case is like the case of a tenant quarreling with the Landlord over review of rents for some shops in the house being rented by the tenant. The tenant has taken the Landlord to Court and asked the Court to shut up the whole house until the case is determined in Court. The Court called the Landlord to Court, but before the Landlord could tell the Court whether or not he would be inconvenienced if the whole house is shut up, the Court decided to shut up the whole house not minding what the Landlord had to say about it. Even our fathers in the village square would not feel it is sentimental to tell the Court that it should have listened to the Landlord before shutting up his whole house because of an aggrieved tenant. The rules of natural justice forbid a judicial officer from taking such a decision. As at the time the order was made, the Appellant had 14 days to organize its

26

primaries and it is being ordered to cease and desist from further action in that regard. We must remember that being a pre-election matter even if we concede that the issues before the trial Court are justiciable, the trial Court had constitutionally the luxury of 6 months to come to a determination of the action before it. Whereas the Appellants had the luxury of only 2 weeks if not, it would be permanently locked out of the electoral exercise in respect of the gubernatorial election of Edo State. Even without the benefit of statutory law discouraging the Courts incursion of stopping the electoral process at any point, that order does not accord with the dictates of democracy. Every Judge must by the calling of a judge be a democrat in thinking and adjudication. Being a democrat includes in every situation watching out for the interest of the electorate and giving all parties opportunity to be heard. At every opportunity, democratic values and natural justice values must be entrenched by the judiciary. By the circumstances in which the order was given the Appellant was not given an opportunity to make a contribution to a decision that may adversely affect

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  1. It is in my humble view an improper exercise of judicial discretion and contrary to the entrenched provisions of fair hearing provided in Section 36 of the 1999 Constitution.
    I am of the view that the order of the learned trial Judge that goes to the root of the substantive matter before it without hearing the parties particularly the issue of the injunctive orders is an injudicious exercise of the discretion of the Court. A look at the reliefs sought in the suit and the ex parte motion for injunction shows that the Court has given the 1st & 2nd Respondents what they wanted without any battle.
    ​By the time the trial Court was making the order, there is no record as I said earlier that any of the parties indicated that there was imminent danger of anything being done between 8th of June and 11th of June which was the next date of adjournment to warrant the sweeping interlocutory order. If the Court wanted to protect the ‘res’ it could have heard and determined the parties on the motion for injunction. The Court would have taken that important decision to make an injunctive order after hearing the case of both parties and

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considering where the balance of convenience lies. That failure to listen and give an informed decision before granting an order of injunction in the circumstances of this case amounts to denying the Appellant the right to fair hearing before making a decision that may adversely affect its interest.
I am of the humble view that the injunctive order given without a consideration of the processes before the Court for or against an order of injunction against the appellant and without hearing parties on the preliminary objection to jurisdiction, was an injudicious exercise of the powers of the trial Court. Therefore, that order of the trial Court made on 8th of June, 2020 to the effect that all parties to the suit before it and their privies are hereby ordered not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the Appellant to conduct or hold the Appellant’s Primary Election coming up next as scheduled pending the determination of the suit pending before it, is hereby set aside. All other administrative orders made on that day still subsist. The substantive suit including the motion for

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injunction preliminary objections to the jurisdiction of the Court e.t.c are hereby sent back to the trial Court to determine all the issues in controversy.
Appeal Allowed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, H.M. OGUNWUMIJU, JCA. I agree with the reasoning and conclusion to the effect that this appeal should be allowed for being meritorious.
I also allow the appeal and abide by the consequential orders made in the leading judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (DISSENTING): I had a preview of the judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA. Upon a sober reflection of the decision of my learned brother, I plead to be allowed to express a contrary or dissenting view.

This appeal emanated from a ruling of the Federal High Court, sitting in Benin City, delivered in Suit No. FHC/B/CS/48/2020 delivered on the 8th day of June, 2020 whereby the Court made 4 (four) orders. The appellant was not satisfied with the decision of the trial Court and filed a notice of appeal containing a sole ground, which is

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hereby reproduced:
“The learned trial Judge erred in law when he disregarded the application of the appellant to strike out the case for want of jurisdiction and went ahead to make Order determining the entire case to wit:
“IT IS HEREBY ORDERED AS FOLLOWS:
That all parties to this suit and their privies are hereby ordered not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st defendant to conduct or hold the 1st defendant primary election coming up next as scheduled pending the hearing and determination of this suit.”
And thereby breached the right to fair hearing of the 1st defendant/appellant when the Court had no jurisdiction to do so and thereby occasion miscarriage of justice.
PARTICULARS OF ERROR
a) The issue of jurisdiction raised by the 1st defendant/appellant ought to have been determined first before any other issue.
b) When the Electoral Act, 2010 as amended forbids the Court from stopping the holding of primaries or general election under the Act pending the determination of a suit.”

Briefs were filed by the appellant and

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1st and 2nd respondents. The 3rd, 4th and 5th respondents did not file and brief.
The appeal was heard on the following processes:
(i) Appellant’s brief filed on 17/06/2020 and deemed as filed on 18/06/2020;
(ii) Notice of preliminary objection filed by the 1st and 2nd respondents on 18/06/2020;
(iii) 1st and 2nd respondents’ brief filed on 17/06/2020 but deemed as properly filed on 18/06/2020;
(iv) Counter affidavit to the preliminary objection, filed on 18/06/2020 by the appellant; and
(v) Appellant’s reply brief filed on 18/06/2020 and deemed as properly filed on the same date.
1ST AND 2ND RESPONDENTS’ PRELIMINARY OBJECTION
The 1st and 2nd respondents raised the following preliminary objection vide a motion on notice filed on 18/06/2020 – that is today:
“TAKE NOTICE that the 1st and 2nd respondents herein named intends at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you viz:
The appellant’s notice of appeal dated and filed 10th June, 2020, as well as the appellant’s brief of argument dated 16th

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June, 2020, and filed 17th June, 2020, are incompetent and ought to be struck out accordingly.
AND TAKE NOTICE that the grounds of the said objection are as follows:
1. The instant appeal is an interlocutory appeal filed without the leave of this Honourable Court or that of the trial Court.
2. The sole issue formulated for determination in the appellant’s brief of argument does not emanate from the sole ground of appeal in the Notice of Appeal dated 10th June, 2020.”

The arguments on the 1st and 2nd respondents’ preliminary objection are contained in paragraphs 3.0 to 4.20 at pages 2 to 6 of the 1st and 2nd respondents’ brief filed on 8/06/2020 and deemed as properly filed by an order of this Court made today.

The reply of the appellant to the preliminary objection is on pages 1 to 4 of the appellant’s reply brief filed today.

I have read the record of proceedings of the trial Court, especially the proceedings and ruling of the Court on the 8th day of June, 2020. In addition, I have read the arguments on the 1st and 2nd respondents’ preliminary objection.

Prior to the proceedings of the 8th

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day of June, 2020, learned counsel for the 1st and 2nd respondents, who were the plaintiffs in the trial Court, moved an ex-parte motion for four prayers listed therein on 02/06/2020 and in its ruling on the said motion ex parte, the trial Court ordered as follows:
“1. The defendants/respondents should show cause why this application should not be granted within 3 days.
2. This case is adjourned to the 8th day of June, 2020 for hearing.”

On the 8th day of June, 2020, the learned counsel for the parties referred to the various applications and processes which they had filed, including notices of preliminary objection filed by the appellant and the 3rd respondent, who were the 1st and 2nd defendants, respectively, in the trial Court.

On that 8th day of June, 2020, the parties made sundry oral applications with reference to their various processes, applications and notices of preliminary objection filed in the suit. In its decision to adjourn the case to another day, the Court, after referring to its earlier order for the defendants to show cause why the plaintiffs’ (now 1st and 2nd respondents’) motion for interim preservative

34

order should not be granted, made four orders including that all applications and responses thereto should be heard alongside the 1st and 2nd respondents’ originating summons; that the parties file and serve their responses, if any, to the processes served on them within 2 days; and that the hearing of all applications together with the originating summons be adjourned to the 11th day of June, 2020.
I agree with Mr. Kenneth O. Mozia (SAN), the leading learned Senior Counsel for the 1st and 2nd respondents, that the decision of the trial Court made on the 8th day of June, 2020 is an interlocutory decision. The present appeal from the said decision, is an interlocutory appeal, which is not even recognized in pre-election matters. Being an interlocutory appeal, anchored on the exercise by the Court of its discretionary powers, the appellant ought to have first sought and obtain leave of either the lower Court or this Court, before or after filing its notice of appeal.
In any case, the appellant’s ground of appeal, reproduced earlier in this judgment, is at best a ground of mixed facts and law, especially as the ground of appeal questions the

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discretion of the trial Court not to hear the appellant’s application for the 1st and 2nd respondents’ suit to be struck out for want of jurisdiction.
The law is settled that “a trial Court has the power to make a preliminary finding to ascertain whether it has jurisdiction over a matter before it” – per Chukwuma-Eneh, JSC in Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed & Ors. (2013) 15 NWLR (Pt. 1377) 274 at 328. See also N.D.I.C. v. C.B.N. (2002) 7 NWLR (Pt. 766) 272 at 296.
The decision of the trial Court to ascertain whether or not it has jurisdiction in its final judgment of the substantive originating summons, is a matter of exercise of the Court’s discretion and the appellant could only have appealed to this Court with leave of Court.
The law is settled that where leave is required and it was not obtained, the process filed without leave is incompetent. See Owhotemu-Kowo v. State (1983) 5 SC 17; Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Faleye v. Otapo (1987) 4 NWLR (Pt. 64) 186; Metal Construction (West Africa) Ltd v. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299; C.B.N. v. Okojie (2002) 8 NWLR

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(Pt. 768) 187 and Opuiyo v. Omoniwari (2007) 6 SC (Pt. 1) 35.

In any case, I agree with the 1st and 2nd respondents’ second ground for their preliminary objection that the lone issue identified for determination by the appellant does not “emanate from the sole ground of appeal in the notice of appeal” filed by the appellant. For the avoidance of doubt, I hereby reproduce the issue distilled by the appellant for determination:
“Whether having regards to the extant laws the Court below was right in making the order it made in the Ruling unsolicited without hearing the motion/preliminary objection challenging the jurisdiction of the Court to hear the entire case?”
When the ground of appeal, reproduced earlier in this judgment, is juxtaposed with the appellant’s sole issue, reproduced above, one cannot but agree with the argument of Mr. Kenneth E. Mozia (SAN) that the issue for determination does not flow from the only ground of appeal because:
“The complaint of the appellant in ground one of its notice of appeal is that “The learned trial Judge erred in law when he disregarded the application of

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the appellant to strike out the case for want of jurisdiction and went ahead to make order determining the entire case.”
Whereas the complaint in the only ground of appeal is that the trial Court ignored the appellant’s application for the suit to be struck out and proceeded to determine the entire case, the substance or kernel of the issue raised for determination is that the order of the trial Court was “unsolicited” and that it was made without jurisdiction.
The law is settled that an issue for determination must arise or flow from a ground of appeal. SeeState v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; A.G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 at 108, per Eko, JSC and Obiajulu Nwalatu v. Nigerian Barr Association (2019) 8 NWLR (Pt.1673) 174 at 187, per Aka’ahs, JSC.
In the case of Jenkins Duve Giane Gwede v. Delta State House of Assembly & Anor. (2019) 8 NWLR (Pt.1673) 30 at 58, per Aka’ahs, JSC; the Supreme Court held that:
“Issues for determination must relate to the grounds of appeal

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filed and the grounds of appeal should arise from the judgment appealed against. See Orianzi v. A.G.; Rivers State (2017) 6 NWLR (Pt. 1561) 224; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Bogobiri v. State (2017) 18 NWLR (Pt. 1597) 247.”
In this case, the appellant’s complaint in its ground of appeal that the trial Court made an “order that determine the entire case” does not arise from the ruling appealed against. Worse still, the lone issue and arguments thereon couched by the appellant do not properly arise nor flow from its single ground of appeal.
The summary of the matter is that the 1st and 2nd respondents’ preliminary objection is very weighty and meritorious. It succeeds on either the 1st ground alone or both grounds. Accordingly, the preliminary objection is upheld.
Therefore, this appeal is liable to be struck out for being incompetent and it is hereby struck out.

SUBSTANTIVE APPEAL
In case, if for any reason, I am wrong in my decision striking out the appeal for being incompetent, I shall proceed to determine the appeal on its merits.

On the issue identified for determination, the

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learned Senior Counsel for the appellant – Chief H. O. Ogbodu (SAN) submitted that “the Court below was wrong…. in making the order contained in the Ruling unsolicited without hearing the Motion/Preliminary Objection challenging the jurisdiction of the Court to hear the entire case”. He relied on the cases of Ilori v. Benson (2000) 9 NWLR (Pt. 673) 570 and A.G; Anambra v. A.G; Fed. (1993) 6 NWLR (Pt. 302) 692 at 742, and submitted that the appellant’s “preliminary objection to the case at hand…..must be determined before proceeding with the matter”.

It was further argued that without jurisdiction, the Court could not exercise its powers under Order 56 of the Federal High Court (Civil Procedure) Rules, 2019 and under Section 6(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria (1999) as amended. In support of this argument reliance was placed on the case of Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522 at 540.

The arguments of the 1st and 2nd respondents are on pages 6 – 7 of their brief as follows:-
“The directive of the trial Court to hear

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the Notice of Preliminary Objection along with substantive suit cannot be said to amount to “disregard” of the said application.
By the provision of Order 29 of the Federal High Court (Civil Procedure) Rules, 2019, the trial Court can hear an application disputing the jurisdiction of the Court along with the substantive suit.
Of utmost assistance to the Court on the issue under consideration is the position of this Honourable Court in the case of IKECHUKWU V. NWOYE & ANOR (2013) LPELR – 20349(CA) wherein the Court in considering the provisions of Order 29 (supra) held the decision of the trial Court to hear objection along with the substantive suit is supported by law.”
The 1st and 2nd respondents also argued that:
“It is clear from the proceedings of the trial Court that the Court did not say it would not hear and determine applications before it but that the applications would be heard along with the substantive suit.
Clearly, the argument of the appellant that the Court has a duty to hear and determine applications before it cannot stand in the circumstance as the trial Court has not hear and

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determine the applications.
Similarly, the argument of the appellant that the Orders made was unsolicited is unfounded. It is clear from the terms of the Ruling that it was made in the overall interest of justice to particularly prevent parties from overreaching the subject matter before the Court.”

I think that the totality of the arguments and submissions of the learned Senior Advocate of Nigeria for the appellant is that the trial Court ought to have first determined its motion/preliminary objection before making any order on 08/06/2020 and that the order made by the trial Court was made without jurisdiction.

As stated earlier, the trial Court made several orders on the said 6th day of June, 2020. The appellant’s main complaint is that the Court ought to have determined its preliminary objection to the Court’s jurisdiction first. The appellant then is seeking “an order setting aside the Ruling of the lower Court delivered on the 8th day of June, 2020” (Underlining mine) in its notice of appeal.
In its brief, the relief sought by the appellant is that:
“The decision of the lower Court (be) set

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aside and the case in the lower Court struck out for want of jurisdiction.”
As can be seen from the relief in the appellant’s notice of appeal and its brief, there is no relief for any specific order to be set aside by this Court.
A party is bound by the relief he has claimed. See Okoya v. Santilli (1990) 3 SCNJ 83 at 126 – 127 and Commissioner for Works, Benue State v. Devcon Construction Co. Ltd. (1988) 3 NWLR (Pt. 83) 407 at 420.
The law is that “the language of a relief must be precise, concise and simple. Relief is the life wire of an action” – per Niki Tobi, JCA (as he then was) in Chief Uzoukwu & Ors. v. Igwe Ezeonu II & Ors. (1991) 6 NWLR (Pt. 200) 708 at 784 – 785.
The relief sought by the appellant, in my own opinion, is grossly insufficient as it is devoid of any particularity or specificity. It should not be granted. See Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326 at 404 – 405; per, Salami, PCA.
The law is settled that a Court cannot grant a party a relief he has not asked for or claimed. See Ekwunife v. Wayne (W.A.) Ltd. (1989) 4 NWLR (Pt. 122) 454;

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Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652 at 680; Agbanelo v. UBN (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534 at 559; Chief N.T. Okoko v. Mark Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 434 and Standard (Nigerian) Engineering Co. Ltd. v. Nigerian Bank for Commerce & Industry (2006) 43 WRN 47 at 70 – 72.
To put it differently, the Court has a duty to limit itself to the relief before it. SeeEkpenyong v. Nyong (1975) 2 SC 71 at 80 – 82; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 271 and Nnanyelugo C. Odukwe v. Mrs. Ethel N. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 358; 360.
The relief sought by the appellant, in its notice of appeal, as stated earlier is for the setting aside of the “Ruling” of the trial Court. Ruling, “generally, is a decision, adjudication of some matter in dispute. More specifically, a ruling is a decision by judge….that applies a rule or law in a given situation….” Bouvier Law Dictionary (compact Edition) page 988.
I agree that in equity, we should apply common sense in the adjudication of cases before us; as admonished by Kenyon, M.R.;

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in Stebbing v. Walkey (1986) 1 Cox. Eq. Ca. 252; as follows:
“This Court should determine upon broad principles which will meet the common sense of mankind.”
I wish to remind us that a principle of longer standing is that the Court cannot unilaterally alter the matter or relief before it. See Montague v. Lord Bath (1693) 3 Ca. in Ch. 67, per Powel, B; where it was held that:
“A Court of equity may do great things, but cannot alter things, or make them to operate contrary to their essential natures and properties.”
The appellant’s brief relief, both in its notice of appeal and brief of arguments, is a ‘lump sum’ relief that the entire ruling or decision of the trial Court on 08/06/2020 be set aside.
​The appellant did not relate its relief to any of the specific orders made by the trial Court on the 8th day of June, 2020. In the circumstances, this Court cannot constitute itself into a judicial laboratory to distill sieve or separate the relief and effect a severance of the relief into components or compartments and or classify the relief by its components; or into a judicial psychologist to read

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the mind of the appellant and grant the appellant the relief that the Court thinks it seeks in this appeal.
The duty of this Court, like any other Court, is to decide the case before it only on the facts, issues and law contested by the parties. The Court should never descend into the arena of the judicial contest and be perceived or seen to be acting on behalf of one party and against another.
In any case, there is no iota of complaint in the appellant’s brief that the trial Court had stopped it from holding its governorship primary election.
A Court of law should confine itself to the issues and/or matters presented by the parties before it.
As a gentle reminder, it is trite that the Court should not decide cases, causes or matters on the basis of sentiments, speculation or sympathy. SeeOverseas Construction Co. Ltd v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552; A.C.B. PLC v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501; Pele Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548; Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
The Supreme Court in the case of

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Federal Republic of Nigeria v. Senator Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 357, per I.T. Muhammad, JSC (as he then was, now CJN); clearly pointed out as follows:
“…a Court of law only decides on facts and the law presented before it and not on sentiments.”
In the later case of Olu Ode Okpe v. Fan Milk PLC (2017) 2 NWLR (Pt. 1549) 282 at 310;
His Lordship held that:
“…in the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course. See Ezeugo v. Ohanyere (1978) 6 – 7 SC 171 at 184…”
See also Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR (Pt. 1533) 458 at 484; per, Nweze, JSC, and Engr. Peter O. Fapohunda v. Reynolds Construction Co. Nig. Ltd. (2019) 3 NWLR (Pt.1658) 163 at 201, per Augie, JSC.

Assuming that the appellant has asked for the interlocutory preservation order to be set aside, having regard to the appellant’s complaint in its ground of appeal and its arguments, as contained in its brief, this Court cannot still resolve this appeal in its favour.

The appellant’s

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arguments anchor on the following planks:
(i) the Lower Court ought not to have disregarded its motion or preliminary objection challenging the jurisdiction before making the preservative order;
(ii) the preservative “order in effect determined the entire case”;
(iii) the lower Court did not hear the parties and the appellant’s right to fair hearing was breached;
(iv) the trial Court had no jurisdiction to make the preservative order.

The appellant deposed in paragraph 5 of its counter affidavit to the preliminary objection of the 1st and 2nd respondents as follows:
“5. That the appeal is on pre-election matter.”

By the above deposition, the appellant acknowledges that the suit before the trial Court is a pre-election matter. Therefore, being a pre-election matter, the trial Court is vested with the jurisdiction to postpone or suspend any preliminary objection or any other interlocutory application, issue or motion touching on its jurisdiction and deliver its decision, opinion or ruling at the stage of its final judgment as provided by Section 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)  ​

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which provides thus:
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.”
Pending its final judgment, a Court seised of a pre-election matter is clothed with the necessary jurisdiction and inherent powers to make any interim or interlocutory equitable or preservative order in the overall interest of justice.
Under Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Federal High Court has “all inherent powers and sanctions of a Court of law”.
In the case of Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors. (No. 2) (2010) 18 NWLR (Pt. 1224) 154 at 221 – 222, per Rhodes-Vivour, JSC; the Supreme Court stated, inter alia, as follows:
“Now, inherent powers are powers which are not necessarily derivable from the Constitution or

49

Legislation. All superior Courts of record have inherent powers. They are power innate in the Court to ensure that the streams of justice remain pure all the time. For example, to ensure that the judicial process is not scandalised or ridiculed by unnecessary applications filed with some ulterior motive.”
A preservative order to ensure that the res, the subject matter of litigation, is not destroyed or irreparably damaged or tampered with, is undoubtedly within the inherent powers of a trial Court to make.
In this case, the order which we have put in issue, was within the inherent powers of the trial Court to make, without waiting for the appellant’s motion or objection challenging the Court’s jurisdiction to be heard and determined, especially as Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) enjoins that the appellant’s objection should be determined at the stage of the final judgment of the Court.
​The orders of the trial Court made on the 8th day of June, 2020, ex facie the record of appeal, did not determine the entire case of the 1st and 2nd respondents. On the contrary, the

50

orders of the Court, including the preservative order, preserved the entire case to be judicially determined on the merits without embarrassing, ridiculing or scandalizing the judicial process.
The appellant cannot candidly and validly complain of a breach of its right to fair hearing because, the trial Court instead of granting the order ex parte, put the appellant on notice and afforded it the opportunity to show cause why the 1st and 2nd respondents’ application or motion should not be granted. Instead of showing cause why the 1st and 2nd respondents’ motion should be granted, the appellant wasted that opportunity by insisting that its notice of objection, that the case be struck out, be heard on that day – 08/06/2020. For the avoidance, I hereby reproduce the relevant portion of the record of the proceedings of the 8th day of June, 2020, on pages 2 and 3 of the additional record of appeal, which is as follows:
“MOZIA SAN:
Service have been directed on the defendants who have been asked to show cause. It has been affected on all the defendants. And affidavit to show cause is in the file of the Court.
1st and 2nd

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defendants have filed affidavit and copies have been served on us.
The 3rd and 4th defendants have not filed any affidavit to show cause. We apply that the Court should proceed with the hearing of the motion exparte to show cause.
OGBODU SAN:
We have been served. We discovered that this Court has no jurisdiction. We have filed a notice of objection to strike out the case. We apply to be heard today as the issue of jurisdiction is involved.”
The appellant knew or ought to know that being a pre-election matter, the trial Court could only deliver its decision on the appellant’s objection at the stage of its final judgment. Yet, the appellant, instead of showing cause why the interlocutory preservative order should not be made, merely insisted on the Court hearing its notice of objection on that day. It was obvious that the appellant’s aim was to delay the hearing and determination of the 1st and 2nd respondents’ motion ex parte, of which the appellant had been put on notice.
It is now settled law that where a party indulges in delaying tactics, he cannot complain of denial of his right to fair hearing. See Kotoye v. CBN

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(1989) 1 NWLR (Pt. 98) 419; Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333; Out v. Udonwa (2000) 13 NWLR (Pt. 683) 157 and Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151.
Having regard to the facts and circumstances of this case, the trial Court rightly exercised its discretion to grant the equitable preservative order in dispute.

The law is quite trite that where the decision of a trial Court is substantially based on the exercise of its discretion, an Appellate Court will not interfere, unless the discretion was not exercised judicially and judiciously; or it was wrongly exercised. See Adeyemo Abiodun v. Federal Republic of Nigeria (2018) 11 NWLR (Pt. 1629) 86; County & City Bricks Dev. Co. Ltd. v. Hon. Minister of Environment & Anor (2019) 5 NWLR (Pt. 1666) 484 and PC. Salisu Mamuda v. The State (2019) 5 NWLR (Pt. 1664) 128.

In this case, the appellant has not shown that the trial Court did not exercise its discretion judicially and judiciously.

It is for all the forgoing reasons that I hereby resolve the issue in this appeal against the appellant and in favour of the 1st and 2nd respondents.

This appeal, being

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devoid of any merit, is hereby dismissed. The decision of the trial Court, per Hon. Justice M. G. Umar, in its ruling delivered on the 8th day of June, 2020, is hereby affirmed.
The parties are ordered to bear their respective costs.

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Appearances:

Chief H.O. Ogbodu SAN For Appellant(s)

A.I. Osarenkhoe Esq., with him, Ken Mozia SAN – for 1st & 2nd Respondent
I.O. Odubela SAN, with him, Robert Emukpoero Esq., Oladipo Osinowo, Roland Otaru SAN and Akinola Oyebanjo Esq. – for 3rd Respondent
Mrs. V.O. Owolabi – for 4th Respondent
Omosun M.O. – for 5th Respondent For Respondent(s)