OZONMA (BARR.) CHIDI NOBIS- ELENDU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS(2015)

OZONMA (BARR.) CHIDI NOBIS- ELENDU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

In The Supreme Court of Nigeria

On Friday, the 12th day of June, 2015

SC.160/2014

RATIO

PRESUMPTION OF THE LAW ON THE CORRECTNESS OF THE RECORDS OF COURTS

Firstly, it is trite that records of courts are presumed to be correct until they are successfully impugned. The maxim is Omma Praesumuntur rite esse acta. See Kossen (Nig) Ltd v. Savannah Bank (Nig) Ltd (1995) LPELR-SC 209/89 and Chief Adebisi Adegbuyi v. All Progressive Congress (APC) & Ors (2014) LPELR-SC 257/2015. PER MUSA DATTIJO MUHAMMAD, J.S.C.

DUTY OF THE COURT TO REFRAIN FROM DECING AN AN ISSUE RAISED SUO MOTU WITHOUT FIRST HEARING THE PARTIES ON IT

Learned appellant’s counsel is right that this court has deprecated the practice of a court raising suo motu and deciding an issue without first hearing parties on it. In one such case, Lahan v. Lajoyetan (1972) 6 SC 190, the court per Sowemimo, JSC (as he then was) (of blessed memory) at page 200 of the report enthused thus:- “… (A) procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.” See also Kuti v. Jibowu (1972) 6 SC 147 and Kuti v. Balogun (1978) 1 SC 53. PER MUSA DATTIJO MUHAMMAD, J.S.C.

WHETHER RIGHT OF ACTION UNDER SECTION 87(9) OF THE ELECTORAL ACT 2010 (AS AMENDED) IS LIMITED TO TIME WHEN SUCH ACTION HAD BEEN COMMENCED BEFORE THE ELECTION

The issue in this appeal falls within a very narrow compass. The point the appellant appears to be making and rightly too, is that his cause of action, a pre-election one, on the issue of the nomination of the candidate of the 2nd respondent’ is provided for by Section 87(9) of the Electoral Act 2010 (as amended); that the right of action under the section, as interpreted by the Supreme Court, once commenced before the election, is not limited to time; that the decision of the lower court derogates from its own earlier decisions and the very many decisions of this court on the issue and to that extent the court’s decision is perverse. One cannot agree more with learned appellant’s counsel. PER MUSA DATTIJO MUHAMMAD, J.S.C.

WHEN CAN A DECISION OF A COURT BE SAID TO BE PERVERSE

A decision is said to be perverse if it does not draw from the evidence on record and/or where the court wrongly apply legal principles to correctly ascertain that and by so doing occasion injustice. See Queen v. Ogodo (1961) 2 SC 366, Mogaji v. Odofin (1978) 4 SC 91 and Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372. PER MUSA DATTIJO MUHAMMAD, J.S.C.

WHETHER A LOWER COURT CAN REFUSE TO FOLLOW THE DECISION OF A SUPERIOR COURT ON AN ISSUE SIMILAR TO THE ONE BEFORE IT

In Chukwuma Ogwe & anor v. Inspector General of Police & Ors. (2015) LPELR-SC 214/2013, this court restated what the failure of a subordinate court in applying its previous valid and subsisting decisions or the decisions of a higher court results in thus- “The lower court by its decision instantly appealed against failed to appreciate the place of the doctrine of stare decisis or precedent in the adjudication process. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors. The doctrine does not allow for the exercise of discretion in an issue the court previously decided when that same issue subsequently surfaces before the court for determination. It is this age old rule of practice that gives law its certainty and equilibrium in the society.” My learned brother Fabiyi, JSC remains ever so direct and poignant in his concurring judgment thus:- “The court below cannot claim to be unaware or ignorant of the position of this court in Akpaji v. Udemba (supra). But it failed to tow the line, as it were, and resultantly flouted the Rule of stare decisis which is to the effect that a point of law that has been settled by a superior court should be followed by a Lower Court. There is sense in it so as to avoid confusion or unwarranted mistake. See Royal Exchange Assurance Nig. Ltd. v. Aswani Textiles Ind. Ltd. (1991) 2 NWLR (Pt.176) 639 at 672. It is not proper to refuse to follow the decision of a superior court as same can be counter-productive as manifest in the order of the court below. A Lower Court should tow the line on a very clear and well pronounced point of law by a superior court; I repeat. See Atolagbe v. Awuni & Ors (1997) 7 SCNJ 1 at paragraphs 20, 24 and 35. PER MUSA DATTIJO MUHAMMAD, J.S.C.

INTERPRETATION OF SECTIONS 31(1) AND (5), 33 AND 87(9) OF THE ELECTORAL ACT 2010 (AS AMENDED) AS REGARDS THE JURISDICTION OF THE HIGH COURT ON THE RIGHT OF ACTION OF AN AGGRIEVED PARTY UNDER SECTION 87(9) WHEN EXERCISED BEFORE THE CONDUCT OF THE ELECTION

In Chief Koku Gariga & Ors v. Bayelsa State Independent Electoral Commission & Ors (2012) LPELR – CA/PH/166/2011, the Port-Harcourt Division of the lower court had held, prior to the instant case and the lower court’s decision being appealed against, that once a political party breaches Section 87(4) of the Electoral Act in the conduct of the primary election for the nomination of its candidate for an election, an aggrieved party has, by virtue of sub-section (9) of the same section, the right of action to seek redress notwithstanding the provisions of Sections 31(1) and 33 of the same Act. In Vivian Clement Akpamgbo Okadigbo and Ors v. Egbe Theo Chidi & Ors (2015) LPELR 24 564 (SC) this court restated its position on the right of action open to an aggrieved party pursuant to Section 87(9) of the Electoral Act thus:- “Where, as in the instant case, a political party conducts its primaries and a dissatisfied contestant at the said primaries complains about the conduct of the primaries, the courts have jurisdiction by virtue of Section 87(9) of the 2010 Electoral Act as amended, to examine if the primaries were conducted in accordance with the Electoral Act, the Constitution and Guidelines of the party. The courts’ jurisdiction thereunder impliedly extends to ensuring that INEC, the 18th respondent herein, in the performance of its statutory duty in conducting elections, accepts and relies only on the true and lawful list of candidates nominated and sponsored by the various political parties for the election.” Appellant’s right of action as conferred under Section 87(9) has persistently been sustained by this Court once exercised before the conduct of the election. The section does not set a time frame within which the action once commenced before the conduct of the election must be concluded. Neither does the section say the action cannot be commenced at the time the appellant did. Indeed the section operates unrestricted by any provision of the Act and or the rules or constitution of the political parties. See Odedo v. INEC (2008) 17 NWLR (pt 1117) 544, Gwede v. INEC (2014) 18 NWLR (Pt 1438) 56 and Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt 1342) 503 at 522. Sections 31(1) & (5) and 33 of the Electoral Act by virtue of which the lower court held that the appellant cannot, at the time he commenced his suit, invoke the jurisdiction of the trial court pursuant to Section 87(9) are hereinunder reproduced:-
“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the Party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidates(s) for any reason whatsoever. (5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT, against such person seeking a declaration that the information contained in the affidavit is false.” Section 87(9) the lower court held does not avail the appellant in the light of the foregoing reads:- “87.(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.” (Underlining supplied for emphasis). The interpretative task of the foregoing desired a communal consideration from the lower court. Whenever a court is faced with the interpretation of statutory provisions, the statute must be read as a whole in determining the object of a particular provision. Thus, all provisions of the statute must be read and construed together unless there is a very clear reason why a particular provision of the statute should be read independently. To achieve a harmonicons result, a section must be read against the background of another to which it relates. This principle is indispensable in giving effect to the true intentions of the makers of the statute. See Rabiu v. Kano State (1980) 8 – 11 SC 130 and Attorney-General Lagos State v. Attorney-General Federation (2014) All FWLR (pt. 740) 1296 at 1331. In the case at hand, a communal consideration of sections 31(1) and (5), 33 and 87(9) of the Electoral Act 2010 (as amended) readily shows that the jurisdiction conferred on the trial court under Section 31(5) is distinct and separate from the subsequent, specific and special jurisdiction under Section 87(9) of the same statute. Indeed Section 87(9), by the clear and unambiguous words that make it, provides that the right of action vested in the appellant thereunder operates notwithstanding Sections 31(5) and 33 or any other provision of the Electoral Act or the rules of a political party. The applicable principle in the present circumstance where a specific provision of the statute is subsequent to a general provision, the specific provision prevails in the event of any conflict between the two. The lower court’s correct decision in this matter would have been that appellant’s right of action under Section 87(9) which is special and specific persists inspite of the separate and general provisions of Section 31 and 33 that are prior in sequence to Section 87(9) of the same Electoral Act. See Mrs. F. Bangboye V. Administrator General (1954) WACA 616 at 619, AG Lagos V. AG Federation (supra) and Chika Madumere & anor V. Barrister Obinna Okwara & others (2013) 6 SCNJ 268. There is also the similarly overriding principle which enables courts to jealously guard their jurisdiction in protecting statutorily vested rights if a provision of the same statute appears to derogate from such rights by construing the latter provision very strictly. See Wilson v. Attorney General of Bendel State (1985) 1 NWLR (pt 4) 572 and Oyo v. Governor of Oyo State (1989). Lastly, courts must interpret the law within the con of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislators. See Senator Dahiru Bako Gassol v. Alhaji Abubakar Umar Turari & Others (2013) 3 S.C.N.J. 6 and Mr. Ugochukwu Duru v. Federal Republic of Nigeria (2013) 2 SCNJ 377. In the case at hand, therefore, the restriction the lower court imposed on the operation of Section 87(9) is neither drawn from the provisions of Sections 31(5), and 33 nor Section 87(9) itself. It could not have been. In Uwazurike V. Nwachukwu (supra) this Court per Onnoghen JSC at page 522 of the report puts it more succinctly thus:- “The jurisdiction conferred on the High Court by the above Section of the Act [Section 87(9)] is not limited to time, let alone circumscribed between the holding of the primary election and submission of the name of the nominated or sponsored candidate by the political party concerned. The provisions of Section 87(9) supra is very clear and unambiguous and should be given its natural and plain meaning.” I am only to add that once an action pursuant to Section 87(9) has been filed before the conduct of the election in relation to which the action has arisen, on the authorities, it remains competent. Appellant’s action that has been so commenced, contrary to what the lower court held, accordingly endures. PER MUSA DATTIJO MUHAMMAD, J.S.C.

JUSTICES

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

Between

OZONMA (BARR.) CHIDI NOBIS- ELENDU Appellant(s)

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PEOPLE’S DEMOCRATIC PARTY
3. HON. (MRS) EUCHARIA AZODO Respondent(s)

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, the 3rd respondent and others contested the 2nd respondent’s primary election for the nomination of the party’s candidate for the Aguata Federal Constituency seat in Anambra State. The primary election which was in relation to the 9th April, 2011 general election conducted by the 1st respondent, took place on the 10th day of January, 2011 after a false start the previous day.

The appellant asserts that the primary election proceeded in accordance with the guidelines published by the 2nd respondent and, having scored the highest votes at the end of the exercise, he was entitled to have his name submitted to the 1st respondent as 2nd respondent’s candidate in the general election. Instead, the 2nd respondent submitted the name of the 3rd respondent to the 1st respondent as its candidate for the 9th April, 2011 election for the Aguata Federal Constituency seat in the House of Representatives. Aggrieved by this turn of events, the appellant commenced action at the Awka division of the Federal High Court seeking, inter-alia, a declaration against the respondents that he is the lawful candidate of the 2nd respondent in the election for the Aguata Federal Constituency Seat.

The 2nd and 3rd respondents having entered conditional appearance contested appellant’s claim by filing a joint statement of defence. Thereafter, the two challenged the trial court’s jurisdiction to entertain appellant’s suit, inter alia on the grounds that appellant’s action was not brought timeously and his failure to join necessary parties to the suit disentitles the appellant to invoke Section 251(1) p, q, r and s of the 1999 Constitution as amended.

The trial court upheld 2nd and 3rd respondent’s objection and in declining jurisdiction struck out appellant’s action.

Dissatisfied with the trial court’s decision, the appellant appealed to the Court of Appeal, Enugu Division, hereinafter referred to as the lower court. He urged the lower court to determine his appeal on the basis of the following issues:-

“1. Whether the Federal High Court has jurisdiction to entertain pre-election matter bothering on the validity of the nomination and/or submission of the name of a person alleged to have lost the party primary election by a political party instead of the winner of the primary election to INEC as the party’s candidate for election into the House of Representatives (formulated from ground 1).

2. Whether the learned trial judge was right to make a case quite distinct from the case presented by the 2nd and 3rd respondents for the said respondents and resolve same without inviting the parties to address him on the issue raised by him (formulated from ground 2).

3. Whether the 1st respondent is a necessary party in this suit (formulated from ground 3).

4. Whether the learned trial Judge properly exercised his discretion in the matter by striking out the suit instead of transferring it to the State High Court for hearing and determination. (formulated from ground 4).

Having resolved issues 1 and 3, and found it “unnecessary and useless” to consider and determine issues 2 and 4 the appellant had distilled as having arisen for determination of his appeal, the lower court proceeded to resolve the issue it raised suo motu against the appellant. The court held that the prosecution of appellant’s suit which was not commenced timeously is a worthless academic exercise the trial court lacks the jurisdiction of indulging in.

The appeal challenges this ultimate decision of the lower court on the issue it raised suo motu.

In compliance with the rules of court, parties have filed and exchanged their briefs which, at the hearing of the appeal, were adopted and relied upon as arguments for or against the appeal. The two issues distilled in the appellant’s brief as calling for determination in the appeal read:-

“(1) Whether the Justices of the Court of Appeal were right in their decision that the Federal High Court has no jurisdiction to entertain the suit on the ground that the election having been held that the pre-election matter had become academic or hypothetical.

(2) Whether the lower court was right to raise the issue that the election having been held that the action has become academic or hypothetical suo moto (sic) and resolve same without giving the parties, especially the appellant the opportunity to address them on the issue.”

The 1st respondent considers and adopts the two issues distilled by the appellant as having arisen for the determination of the appeal. The 2nd and 3rd respondents distilled a lone and similar issue each on the basis of which they consider the appeal should be determined. 2nd respondent’s issue reads:-

“WHETHER THE COURT BELOW IN ANY WAY OCCATIONED (SIC) A MISCARRIAGE OF JUSTICE BY SUO MOTO RAISING THE ISSUE OF THE APPLICABILITY OR OTHERWISE OF SECTION 141 OF THE ELECTORAL ACT 2010 AS AMENDED AND RESOLVING SAME AGAINST THE APPELLANT AFTER HEARING BOTH PARTIES ON THE ISSUE.”

The more detailed issue coded in the 3rd respondent’s brief is:-

“Whether the decision of the court below reached after the court below suo moto (sic) raised the issue of section 141 of the Electoral Act 2010 (as amended), invited the parties to the appeal to address the court on section 141 of the Electoral Act 2010 (as amended) and its effect on the Appellant’s appeal could be said to be a decision reached in breach of the Appellant’s right of fair hearing, after the court had heard the parties including the Appellant on section 141 of the Electoral Act 2010 (as amended) and its effect of rendering the Appellant’s appeal academic and hypothetical.”

Arguing the appeal, learned appellant’s counsel submits that from the arguments of the appellant, the 2nd and 3rd respondents at pages 483-484 of the record of appeal, it is glaring that parties were asked to address the lower court on the applicability of Section 141 of the Electoral Act 2010 (as amended) to the facts of their case. The section, learned counsel maintains, can only be invoked after evidence had been led which evidence had neither been led at the trial court nor at the lower court. Most regrettably, learned appellant’s counsel further submits, instead of deciding the issue it raised and had parties addressed it on, the lower court, proceeded to base its decision on the issue of appellant’s failure to commence his action timeously. It is a travesty of justice, contends learned counsel, for the court to determine the appellant’s appeal on an issue the court raised and never heard the parties on. Relying inter-alia on University of Calabar v. Essein (1996) 12 SCNJ 304, Oshodi v. Eyifunmi (2000) 13 NWLR (Pt 684) 298, Iriri v. Erhurhobara (1991) 3 SCNJ 12 and Oro v. Falade (1995) 5 NWLR (Pt 396) learned counsel urges that the sole issue be resolved in appellant’s favour.

Further arguing the appeal, learned appellant’s counsel contends that the lower court is wrong in holding that the trial court lacks jurisdiction over the issue of the nomination of 2nd respondent’s candidate commenced on the ground that with the subsequent conduct of the election, even though appellant’s suit was commenced prior to the conduct of the election, the cause has become hypothetical or academic. It is submitted that the Electoral Act 2010 (as amended) does not provide that a pre-election matter must be commenced, heard and necessarily determined before the conduct of the election. Section 87 of the Electoral Act which creates appellant’s right of action, as interpreted by the apex court, argues counsel, only requires that the action be commenced before the conduct of the election while the court’s decision thereon may be reached even after the conduct of the particular election. The state of the law on this aspect of the issue the appellant’s action raises, learned counsel submits, is as stated by the Supreme Court in Amaechi v. INEC (2008) 10 WRN 1.

The lower court, learned counsel concludes, is simply wrong in its purported application of the principle the Supreme Court propounded in Imegwu v. Okolocha (2013) 9 NWLR (Pt 1359) 347 since the facts of the earlier case are different from those in the instant case.

On the whole, learned appellant counsel urges that the appeal be allowed.

Arguing the appeal in its brief, learned counsel to the 1st respondent refers to pages 511 – 514 of the record of appeal and contends that the decision of the court below is beyond reproach. The appellant who chose to commence his action a day to the conduct of the 9th April, 2011 did not act timeously. No court, argues learned counsel, can grant the reliefs the appellant seeks by virtue of paragraph 28 of his statement of claim. Sections 31, 32, 33 and 141 of the Electoral Act 2010, submits learned counsel, disentitle the grant of the reliefs, notwithstanding the fact that the action is constituted pursuant to Section 87 of the same Act. Indeed, it is further submitted, the question of who is 2nd respondent’s candidate, with the conduct of the election on 9th April, 2011, has ceased to be relevant. With appellant’s failure to seek the reliefs timeously, the lower court, submits learned counsel, is correct to have held at lines 10 – 11 of page 514 of the record of appeal that appellant’s case is worthless and an academic exercise which the trial court lack the jurisdiction to indulge in. Learned counsel relies on C.P.C. v. INEC (2011) 18 NWLR (Pt 1279) 493 at 559, Commissioner for Works Benue State v. D.P.L (1988) SCJ and Imegwu v. Okolocha (2013) 9 NWLR (Pt 1359) 347.

Concluding his arguments under their 1st issue, learned counsel submits that the decision of this Court on the purport of Section 141 of the Electoral Act in C.P.C. v. Ombugudu (2013) 18 NWLR (Pt 1385) 66 at 119 takes the bottom off the appellant’s feet. The section of the Electoral Act as interpreted makes the grant of appellant’s reliefs on the basis of the decision of the Supreme Court in Amaechi v. INEC (supra) impossible. It is urged that the 1st issue be resolved against the appellant.

Under their 2nd issue, appellant’s 2nd as well, learned 1st respondent’s counsel submits that the finding in the lower court’s judgment at page 508 of the record belies the appellant’s claim that the issue on the basis of which the lower court dismissed his appeal was raised suo moto and that he was not heard before the decision on the issue. The record of a court is presumed correct and binds the parties to the proceedings as well. Relying on the decisions of this court in Texaco Panama Inc v. SPDC Ltd (2002) FWLR (Pt 96) 579 at 605 and Daniel Adeoye v. The State (1999) 4 SC (Pt 11) 67, learned counsel urges that their 2nd issue be resolved against the appellant and the appeal dismissed too.

Responding, learned 2nd respondent’s counsel emphasized the fact that the court below, by virtue of Section 15 of the Court of Appeal Act 2004, Order 4 Rule 4 and Order 6 Rule 5 of the Court of Appeal Rules, has the powers of raising and determining any question that will resolve the real issue in controversy between the parties provided the parties are heard before the determination. The court, learned counsel submits, raised the critical question which parties had joined issue upon at the trial court which issue the trial court left however undetermined. The 2nd and 3rd respondents, it is submitted, had, in paragraph 6 of the grounds of the objection contained in their memorandum of appearance, paragraph 60 of their statement of defence as well as paragraph 10 of the grounds of their motion on Notice challenging the jurisdiction of the lower court, dwelt on the fact that the 9th April, 2011 election had held without the participation of the appellant. Paragraph 5 of the affidavit in support of the 2nd and 3rd respondents’ motion challenging the jurisdiction of the trial court, it is argued, contains facts showing that the appellant did not participate in the election. 2nd and 3rd respondents have argued under their 4th issue at the trial court that appellant did not participate in the election which fact, given Section 141 of the Electoral Act, takes away the jurisdiction the trial court would have otherwise exercised over appellant’s suit. It is this very issue, contends learned counsel, the lower court raised on its own and had parties address it before the decision the appellant challenges in this appeal. Appellant cannot, contends learned counsel, succeed.

Further arguing the appeal, leaned counsel submits that line 18 of page 483 to line 7 of page 484 of the record of appeal falsifies appellant’s claim that the lower court did not give him a hearing before determining the issue the court raised suo motu. The decision of the lower court at line 13 of page 512 to line 2 of page 513 of the record invoking the provision of Section 141 of the Electoral Act 2010 (as amended) to adjudge appellant’s action incompetent, argues learned counsel, cannot be faulted. Relying on the decisions in Evangelist Effanga v. Rogers (2003) FWLR (Pt 157) 1058 at 1071, Ezeoke v. Igwe (2001) FWLR (Pt 154) 232 at 242 – 3 and Imegwu Okolocha (supra) learned counsel urges that their issue be resolved against the appellant and in consequence the appeal be dismissed.

Similar arguments have been advanced in 3rd respondent’s brief of argument settled by B.C. Igwilo Esq. It serves no purpose to reproduce same again.

My lords, learned respondents’ counsel are entirely right that by virtue of Section 15 of the Court of Appeal Act 2004, Order 4 Rule 4 and Order 6 Rule 5 of the Court of Appeal Rules 2011 the lower court has jurisdiction to suo motu raise any issue and determine same after hearing parties to the appeal if doing so will resolve the real question in controversy in the appeal. Further concessions have to be made to respondents’ counsel!

In the case at hand, learned appellant’s counsel contends that the appellant was not heard before the determination of the issue the lower court raised suo motu was not heard. Yet the record of appeal at pages 483 – 486, as correctly referred to by all counsel to the respondents, indicates otherwise. One’s scrutiny reveals very clearly the issue the court raised suo motu and the fact that all the parties before the court, including Mr. Osuigwe who represented the appellant then, had addressed the court on the issue before the court’s determination of same. The record of appeal binds not only the parties in this appeal but this court as well.

Learned appellant’s counsel is right that this court has deprecated the practice of a court raising suo motu and deciding an issue without first hearing parties on it. In one such case, Lahan v. Lajoyetan (1972) 6 SC 190, the court per Sowemimo, JSC (as he then was) (of blessed memory) at page 200 of the report enthused thus:-
“… (A) procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.”
See also Kuti v. Jibowu (1972) 6 SC 147 and Kuti v. Balogun (1978) 1 SC 53.

The facts of the instant case do not, however, support appellant’s resolve in moving one to apply the foregoing strictures on the lower court since before the determination of the issue the court raised suo motu, as borne out by the record of the instant appeal, the parties before the court were heard on the issue raised by the court.

Now, what is the issue raised suo motu by the lower court and the court’s decision on same that informs the instant appeal

My lords, the submissions of learned counsel of all the parties to the appeal on the issue the lower court raised spans pages 483 and 484 of the record of appeal.

The lower court in the course of its judgment, see page 507 of the record of appeal, identified the issue it raised and eventually determined thus:-

“I will now deal with the issue of whether the suit at the trial court was an academic exercise, and if so whether the trial court had jurisdiction to entertain such suit. As I had stated herein, this issue was raised suo motu (sic) by this court. No ground of this appeal raised this issue and it was not part of the issues for determination raised by the appellant in his brief of argument. The judgment of the trial court did not decide this issue.” (underlining mine for emphasis).

The lower court then resolved the issue so raised at pages 514 – 515 of the record of appeal that notwithstanding the provision of Section 87(9) of the Electoral Act, which creates appellant’s right of action, same not being invoked timeously, by virtue of Sections 31(1) and 33 of the Electoral Act, is incapable of facilitating the reliefs and has become hypothetical and academic.

The court concluded:-

“In IMEGWU V. OKOLOCHA (2013) 9 NWLR (PT 1359) 347 the Supreme Court ….further held that even if a nomination was wrongful, once the election has been held, the wrongful nature of the nomination can no longer affect the nomination and the election.” (underlining mine for emphasis).

The instant appeal is against the foregoing decision of the lower court.

Firstly, the lower court is indeed bound by its own decisions and the decisions of this court on the very issue it raised and determined. In Chukwuma Ogwe & anor v. Inspector General of Police & Ors. (2015) LPELR-SC 214/2013, this court restated what the failure of a subordinate court in applying its previous valid and subsisting decisions or the decisions of a higher court results in thus-
“The lower court by its decision instantly appealed against failed to appreciate the place of the doctrine of stare decisis or precedent in the adjudication process. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors. The doctrine does not allow for the exercise of discretion in an issue the court previously decided when that same issue subsequently surfaces before the court for determination. It is this age old rule of practice that gives law its certainty and equilibrium in the society.”
My learned brother Fabiyi, JSC remains ever so direct and poignant in his concurring judgment thus:-
“The court below cannot claim to be unaware or ignorant of the position of this court in Akpaji v. Udemba (supra). But it failed to tow the line, as it were, and resultantly flouted the Rule of stare decisis which is to the effect that a point of law that has been settled by a superior court should be followed by a Lower Court. There is sense in it so as to avoid confusion or unwarranted mistake. See Royal Exchange Assurance Nig. Ltd. v. Aswani iles Ind. Ltd. (1991) 2 NWLR (Pt.176) 639 at 672. It is not proper to refuse to follow the decision of a superior court as same can be counter-productive as manifest in the order of the court below. A Lower Court should tow the line on a very clear and well pronounced point of law by a superior court; I repeat. See Atolagbe v. Awuni & Ors (1997) 7 SCNJ 1 at paragraphs 20, 24 and 35.”

The lower court and indeed this court had, before the case at hand, considered and pronounced upon the right of action conferred on the appellant by Section 87(9) of the Electoral Act 2010 (as amended) inspite of the provisions of Sections 31 and 33 of the same statute.

In Chief Koku Gariga & Ors v. Bayelsa State Independent Electoral Commission & Ors (2012) LPELR – CA/PH/166/2011, the Port-Harcourt Division of the lower court had held, prior to the instant case and the lower court’s decision being appealed against, that once a political party breaches Section 87(4) of the Electoral Act in the conduct of the primary election for the nomination of its candidate for an election, an aggrieved party has, by virtue of sub-section (9) of the same section, the right of action to seek redress notwithstanding the provisions of Sections 31(1) and 33 of the same Act.
In Vivian Clement Akpamgbo Okadigbo and Ors v. Egbe Theo Chidi & Ors (2015) LPELR 24 564 (SC) this court restated its position on the right of action open to an aggrieved party pursuant to Section 87(9) of the Electoral Act thus:-
“Where, as in the instant case, a political party conducts its primaries and a dissatisfied contestant at the said primaries complains about the conduct of the primaries, the courts have jurisdiction by virtue of Section 87(9) of the 2010 Electoral Act as amended, to examine if the primaries were conducted in accordance with the Electoral Act, the Constitution and Guidelines of the party. The courts’ jurisdiction thereunder impliedly extends to ensuring that INEC, the 18th respondent herein, in the performance of its statutory duty in conducting elections, accepts and relies only on the true and lawful list of candidates nominated and sponsored by the various political parties for the election.”
Appellant’s right of action as conferred under Section 87(9) has persistently been sustained by this Court once exercised before the conduct of the election. The section does not set a time frame within which the action once commenced before the conduct of the election must be concluded. Neither does the section say the action cannot be commenced at the time the appellant did. Indeed the section operates unrestricted by any provision of the Act and or the rules or constitution of the political parties. See Odedo v. INEC (2008) 17 NWLR (pt 1117) 544, Gwede v. INEC (2014) 18 NWLR (Pt 1438) 56 and Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt 1342) 503 at 522.
Sections 31(1) & (5) and 33 of the Electoral Act by virtue of which the lower court held that the appellant cannot, at the time he commenced his suit, invoke the jurisdiction of the trial court pursuant to Section 87(9) are hereinunder reproduced:-
“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the Party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidates(s) for any reason whatsoever.
(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT, against such person seeking a declaration that the information contained in the affidavit is false.”
Section 87(9) the lower court held does not avail the appellant in the light of the foregoing reads:-
“87.(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.” (Underlining supplied for emphasis).
The interpretative task of the foregoing desired a communal consideration from the lower court. Whenever a court is faced with the interpretation of statutory provisions, the statute must be read as a whole in determining the object of a particular provision. Thus, all provisions of the statute must be read and construed together unless there is a very clear reason why a particular provision of the statute should be read independently. To achieve a harmonicons result, a section must be read against the background of another to which it relates. This principle is indispensable in giving effect to the true intentions of the makers of the statute. See Rabiu v. Kano State (1980) 8 – 11 SC 130 and Attorney-General Lagos State v. Attorney-General Federation (2014) All FWLR (pt. 740) 1296 at 1331.
In the case at hand, a communal consideration of sections 31(1) and (5), 33 and 87(9) of the Electoral Act 2010 (as amended) readily shows that the jurisdiction conferred on the trial court under Section 31(5) is distinct and separate from the subsequent, specific and special jurisdiction under Section 87(9) of the same statute. Indeed Section 87(9), by the clear and unambiguous words that make it, provides that the right of action vested in the appellant thereunder operates notwithstanding Sections 31(5) and 33 or any other provision of the Electoral Act or the rules of a political party.
The applicable principle in the present circumstance where a specific provision of the statute is subsequent to a general provision, the specific provision prevails in the event of any conflict between the two. The lower court’s correct decision in this matter would have been that appellant’s right of action under Section 87(9) which is special and specific persists inspite of the separate and general provisions of Section 31 and 33 that are prior in sequence to Section 87(9) of the same Electoral Act. See Mrs. F. Bangboye V. Administrator General (1954) WACA 616 at 619, AG Lagos V. AG Federation (supra) and Chika Madumere & anor V. Barrister Obinna Okwara & others (2013) 6 SCNJ 268.
There is also the similarly overriding principle which enables courts to jealously guard their jurisdiction in protecting statutorily vested rights if a provision of the same statute appears to derogate from such rights by construing the latter provision very strictly. See Wilson v. Attorney General of Bendel State (1985) 1 NWLR (pt 4) 572 and Oyo v. Governor of Oyo State (1989).
Lastly, courts must interpret the law within the con of its constitutive words and refrain from seeking the meaning of the statute outside the clear words employed by the legislators. See Senator Dahiru Bako Gassol v. Alhaji Abubakar Umar Turari & Others (2013) 3 S.C.N.J. 6 and Mr. Ugochukwu Duru v. Federal Republic of Nigeria (2013) 2 SCNJ 377.
In the case at hand, therefore, the restriction the lower court imposed on the operation of Section 87(9) is neither drawn from the provisions of Sections 31(5), and 33 nor Section 87(9) itself. It could not have been. In Uwazurike V. Nwachukwu (supra) this Court per Onnoghen JSC at page 522 of the report puts it more succinctly thus:-
“The jurisdiction conferred on the High Court by the above Section of the Act [Section 87(9)] is not limited to time, let alone circumscribed between the holding of the primary election and submission of the name of the nominated or sponsored candidate by the political party concerned. The provisions of Section 87(9) supra is very clear and unambiguous and should be given its natural and plain meaning.”
I am only to add that once an action pursuant to Section 87(9) has been filed before the conduct of the election in relation to which the action has arisen, on the authorities, it remains competent. Appellant’s action that has been so commenced, contrary to what the lower court held, accordingly endures.
Learned appellant counsel’s submission that the lower court’s decision that ignored all the foregoing principles be pronounced perverse cannot be treated lightly. The court’s reliance on the decision of this court which is neither on the same nor similar facts, learned appellant’s counsel is again right, cannot save the court’s decision. See Rossek v. ACB Ltd (1993) 8 NWLR (Pt) 312 382 and Shetima & Ors v. Goni & Ors (2011) NWLR (Pt 1279) 413 at 425. Certainly, had the lower court availed itself with all the foregoing principles and not flaunted them, it would have appreciated and submitted to the authority of its earlier decision in Chief Koku Gariga & Ors v. Bayelsa State Independent Electoral Commissions & Ors (supra) and the decision of this court in Vivian Clement Akpamgbo Okadigbo and Ors v. Egbe Theo Chidi & Ors (supra) and more specifically Uwazurike V. Nwachukwu (supra) in avoiding the pitfall it needlessly ended in.
The real issue in controversy between the parties, whether inspite of the provisions of Sections 31(1) & (5) and 33 the trial court has jurisdiction under Section 87(9) of the same Electoral Act to hear and determine appellant’s suit, is, for the foregoing, resolved in appellant’s favour. The appeal succeeds and is allowed. Parties are to bear their respective costs.
For the avoidance of doubt, the lower court’s order affirming the decision of the trial court in declining jurisdiction on the basis of the issue the former raised suo motu and decided is hereby set-aside. The trial court’s jurisdiction pursuant to Section 87(9) of the Electoral Act persists. With the tenure of the 7th Assembly at the national level having expired, this Court does hereby refrain from remitting appellant’s otherwise competent suit to the trial court for same to be heard on the merits.

In conclusion, it must be observed that even though the lower court is empowered under Section 15 of the Court of Appeal Act to raise suo motu any issue and, on hearing parties before it, resolve an appeal on the grounds of the issue it so raises, this power should be resorted to most discreetly and with the highest sense of responsibility. To say the least, sufficient discretion has not been employed by the lower court in the instant case.

SULEIMAN GALADIMA J.S.C.: I have had the opportunity of reading in draft the judgment of my learned brother MUSA DATTIJO MUHAMMAD JSC, just delivered. I entirely agree with his reasoning and conclusion therein that there is merit in this appeal and should be allowed. The facts of the case leading to this appeal have been carefully set out in the lead judgment. I need not repeat these facts.

In the court below the two issues (that is 1 and 3) which were resolved and found to be “unnecessary and useless” for consideration and the two issues (that is 2 and 4) determined as having arisen for determination of the appellants’ appeal are set out as follows:

3. Whether the 1st respondent is a necessary party in this suit (Formulated from Ground 3).

4. Whether the learned trial judge properly exercised his discretion in the matter by striking out the suit instead of transferring it to the State High Court for hearing and determination. (Formulated from Ground 4).”

After the resolutions of the foregoing issues aforesaid, the court below then proceeded to raise an issue suo motu and resolve same against the Appellant. It held that the appellant’s suit was not commenced timeously and is therefore a worthless academic exercise and therefore, the trial court lacked jurisdiction to embark upon. The appeal was dismissed solely on the issue the court raised suo motu.

The Appellant herein was dissatisfied with the decision, hence he appealed against same. He raised two issues for determination as follows:

“(1) Whether the Justices of the Court of the Appeal were right in their decision that the Federal High Court has no jurisdiction to entertain the suit on the ground that election having been held that the pre-election matter had become academic or hypothetical

(2) Whether the lower court was right to raise the issue that the election having been held that the action has become academic or hypothetical suo motu and resolve same without giving the parties especially the appellant opportunity to address them on the issue.”

The 1st Respondent has considered and adopted the two issues formulated by the Appellant. The 2nd and 3rd Respondents’ sole issue is also a complaint against the issue of suo motu raised by the court below.

It is clear that the Appellant is complaining of not being accorded fair hearing on his issue No.2 I do not think the appellant was denied fair hearing. The record shows that the parties addressed the issue the court raised (see PP.483 and 484 of the record).

It is at page 483 of the record learned counsel for the Appellant herein, particularly addressed the issue of whether Section 141, of the Electoral Act 2010 (as amended) was applicable. Also at page 484A in his Reply on points of law the learned counsel for the appellant has urged the court to confine itself to the issue before it. It was also contended that the Appellant appeal was neither merely academic nor hypothetical.

In the appellant’s issue No.1 after a careful consideration of the issue, his contention is that he contested and scored the highest number of votes cast at the primaries conducted by the 2nd Respondent herein and his name and no other, should have been submitted to the 1st Respondent (INEC) as the party’s candidate to contest the membership seat for the Aguata Federal Constituency for the National assembly. I agree that this is a complaint that squarely falls within Section 87(9) of the Electoral Act 2010 (as amended). It provided as follows:

“Notwithstanding the provisions of this Act or rules of a political party, en aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a state or FCT for redress.”

The court below rightly held that the Federal High court had jurisdiction to entertain the claim of the Appellant. The grouse of the Appellant is the view held by the court below that the Appellant did not act timeously when it challenged the result of the primaries only a day to the conduct of the general election, more so that the election having been conducted and the winner duly declared therefore his complaint became an academic exercise. It is however not in doubt that the election had been conducted with the 3rd Respondent as the candidate of the 2nd Respondent and the said 3rd Respondent had been sworn.

It is not correct to say that because the election conducted by the 1st respondent had taken place before the commencement of the Appellant’s matter therefore it became academic. It is however, to be noted that the Appellant had instituted his action on the conduct of his party’s primaries before the holding of the election but he not heard until after the election took place. How can it be said that he has forfeited his right to ventilate his grievance Section 87(9) (supra) is not ambiguous. It is clear. The jurisdiction of the High Court as conferred on it by this Section is not subjected to any time frame, it is not circumscribed between Election and submission of the name of the nominated or sponsored candidate by his political party. It is neither intended by the legislature to be subjected to this provision or any provisions of the Electoral Act or the Rules guiding the political affairs of any political party, otherwise the jurisdiction of the court would be unnecessarily outsted even in a clear situation or circumstances that is not warranted. It is wrong to construe Sections 31(1)(4)(5) and (6) of the Electoral Act by the court below as the provisions ousting the jurisdiction of the trial High Court once the main election has taken place. The jurisdiction conferred on the trial High Court under these sections is quite distinct and separate from the special jurisdiction under Section 87(9) of the same Act.

It is for the foregoing reasons and the more detailed ones provided in the lead judgment that I too allow this appeal. I abide by the order made as to costs.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the reasoning of the judgment, just delivered by my learned brother, Musa Dattijo Muhammad JSC and to register my support I shall make some comments.

This is an appeal by the appellant against the judgment of the Court of Appeal, Enugu Division delivered on the 3rd day of February, 2014 dismissing the appellant’s appeal against the judgment of the Federal High Court holden at Awka Judicial Division delivered by Hon. Justice P. O. Olayiwola. The appellant on 21st day of March, 2014 filed a Notice of Appeal of three grounds.

The appellant as plaintiff at the High Court on the 8th day of April, 2011 commenced the suit at the Federal High Court sitting at Awka against the respondents as defendants. The appellant had sought the following reliefs in the Statement of Claim hereunder reproduced thus:

(a) A declaration that the plaintiff is the duly nominated candidate of the Peoples Democratic Party for the Federal House of Representatives Aguata Federal Constituency, Anambra State of Nigeria having pooled the highest number of votes at the repeat primaries of the Peoples Democratic held on Monday, the 10th day of January, 2011.

(b) A declaration that the plaintiff is the lawful candidate of the 2nd defendant (PDP) for the House of Representatives, Aguata Federal Constituency whose name shall and ought to be placed or published on the ballot for the 2011 National Assembly election by the 1st defendant.

(c) A declaration that the purported submission of the name of the 3rd defendant to the 1st defendant (INEC) as a candidate of the 2nd defendant (PDP) for the Federal House of Representatives, Aguata Federal Constituency and acceptance and publication of same by 1st defendant is unlawful, illegal, unconstitutional, null and void and of no effect.

(d) A declaration that the 3rd defendant is not winner of the 2nd defendant primaries election for the Federal House of Representatives, Aguata Federal House of Representatives, Aguata Federal Constituency held on the 10th January, 2011.

(e) An order of perpetual injunction restraining the 1st defendant from in any manner whatsoever recognizing, transacting, doing anything, or dealing with the 3rd defendant as the candidate of the 2nd defendant for the 2011 Federal House of Representatives Election, Aguata Federal Constituency.

(f) An order substituting or replacing the name of the plaintiff for the 3rd defendant’s name as the candidate of the 2nd defendant (PDP) for the Federal House of Representatives, Aguata Federal Constituency.

(g) And any general or other reliefs which may be given as the judge may think just as if same had been asked for.

FACTS

The appellant and the 3rd respondent and others as aspirants pursuant to Section 87 of the Electoral Act 2010 (as amended) and the Peoples Democratic Party Constitution contested the Peoples Democratic Party (the 2nd respondent’s) party primaries held on the 10th day of January, 2011 for election into the House of Representatives for Aguata Federal Constituency Anambra State.

At the conclusion of the primaries, the result declared by the Returning Officer of the 2nd respondent (PDP) showed that the 3rd respondent won the primaries. The scores of the parties as accepted by the 2nd respondent were as follows:

(1) Hon. (Mrs.) Eucharia Azodo – 185 votes (the 3rd respondent)

(2) Ozonma (Barr.) Chidi Nobis Elendu – 89 votes (the appellant)
(3) Mrs. Ndidi Oloye – 5 votes

(4) Mr. Tony Offiah – 133 votes
(See page 62 of the Record of Appeal).

The appellant felt aggrieved by the outcome of the Primary Election and filed suit No. FHC/AWK/CS/167/2011 on the 8th day of April, 2011. The Claim of the appellant with the date of filing the suit is at pages 1 to 3 of the record of appeal.

As at 8th of April, 2011 when the appellant filed suit No FHC/AWK/CS/167/2011 against the respondents in this appeal, the name of the 3rd respondent (Hon. Eucharia Azodo) had been submitted by the 2nd respondent (PDP) to INEC (the 1st respondent) as the candidate of the 2nd respondent. Furthermore, the name of the 3rd respondent has been published as required by Section 31(1)(2)(3)(4)(5) and (6) of the Electoral Act 2010 (as amended) as the candidate of the 2nd respondent.

The said election for Aguata Federal Constituency was fixed for 9th April, 2011 whilst the appellant as plaintiff filed the suit on 8th April, 2011 less than 24 hours to the holding of the said election in which the name of the 3rd respondent (Hon. Eucharia Azodo) appeared and listed as the candidate of the 2nd respondent (PDP). The said Suit No. FHC/AWK/CS/167/2011 (the subject of this appeal) was not served on the respondents until after the election was held on 9/4/2011 and the 3rd respondent declared as the winner of the election and returned in the election and issued with a Certificate of Return.

Upon service of the court processes in the said Suit No. FHC/AWK/CS/167/2011 filed on the said 8/4/2011 by the appellant, the 2nd and 3rd respondents who were then represented by one counsel, filed the Statement of Defence as well as a motion on Notice challenging the jurisdiction of the court of entertain the suit.

The prayer and the grounds of the application in the said motion on notice filed by the 2nd and 3rd respondents in suit No. FHC/AWK/CS /167/2011 are as follows:

(i) An order dismissing/striking out this suit for lack of jurisdiction of the court to entertain same

(j) And further take notice that the grounds for this application are as follows:

1. This suit is an abuse of the processes of the court.

2. The suit was initiated after the period for the submission or substitution or change of candidates political parties had lapsed.

3. Courts do not make orders in vain

4. As at 8/4/2011, when the above suit was filed, the issue of nomination of candidates, substitution of candidates and sponsorship of candidates by political parties had come to an end and become time bared.

5. The plaintiff had no cause of action as at 8/4/2011, as the request/claim of the plaintiff is time barred and unenforceable in law, the suit having been filed after the time provided for submission of names of candidates or substitution of names of candidates.

6. The suit was filed after the latest time for delivery of nomination papers and the withdrawal of candidates for an election under the Electoral Act 2010 (as amended).

7. A poll had taken place on the 9th of April, 2011, without the plaintiff’s delivery of nomination papers before the commencement of the poll and without the defendants being aware of the pendency of the above suit.

8. The 3rd defendant having delivered her nomination paper and the 2nd defendant having submitted the name of the 3rd defendant before the last date for the submission of names of candidates, the plaintiff’s claim had become a legal impossibility and at best leaves the plaintiff with the remedy of suing the 2nd defendant for damages as the case falls within the domain of internal and domestic affairs of the 2nd defendant in the matter of nomination of candidates.

9. Once the 3rd defendant have been screened and cleared within the period stipulated by law, any suit filed after the said period, does not enure any cause of action to the plaintiff.

10. The suit of the plaintiff is within the realm of internal affairs of PDP and this court has no jurisdiction to entertain same; particularly for a suit file after the close of nomination and a day to the polls which took place on 9th April, 2011

The appellant filed a counter affidavit in reaction to the affidavit and to the motion on Notice of the 2nd and 3rd respondents. The appellant also filed a Reply to the Statement of Defence of the 2nd and 3rd respondents.

The trial court per P.F. Olayiwola Judge of the Federal High Court in a reserved Judgment held inter alia that there was no complaint against INEC in the Statement of Claim of the plaintiff/appellant and therefore struck out the suit of the appellant having regard to Section 251(1)(p)(q)(r) and (s) the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The appellant dissatisfied with the Ruling of the Federal High Court appealed to the Court of Appeal. After repeated amendments of the Notice of Appeal, the Appeal was heard on 16th December, 2013 based on the Amended Notice of Appeal dated 9th of December, 2013 and filed on 9th December, 2013.

In the course of parties adopting their respective briefs of Argument on 16th December, 2013, the court suo motu raised the issue of the applicability of Section 141 of the Electoral Act 2010 (as amended) and its effect on the suit having regard to the fact that election had been held, the 3rd respondent contested the election and was returned as the winner of the election. All the parties made submissions in that wise. It must be noted that parties were not taken by surprise as the court has repeatedly drawn attention of parties on the effect of the Section 141- of the Electoral Act in open court and indicated that the court would like to be addressed on same. The parties were ready and addressed the court on 16/12/2013 on the applicability of Section 141 of the Electoral Act 2010 (as amended) and its effect on the appeal.

The Court of Appeal in the Judgment of the court delivered on the 3rd of February, 2014 dismissed the appeal by holding that although the Federal High Court was wrong having regard to Section 87(9) of the Electoral Act 2010 (as amended) to strike out the suit and also holding that INEC was not a necessary party and therefore the court lacked jurisdiction having regard to Section 251(i)(p)(q) and (s) of the 1999 Constitution of Nigeria (as amended). The Court of Appeal held that Section 87(9) of the Electoral Act, 2010, (as amended) gave the Federal High Court jurisdiction to entertain dispute relating to party primaries of political parties. The court after listening to the arguments of the parties on Section 141 of the Electoral Act, 2010 (as amended) dismissed the appeal as being academic as the election had been held and the 3rd respondent who contested the election returned as the winner of the election.

The Appeal in this court was heard on the 23rd day of March, 2015 whereby learned counsel for appellant, Chief Oseloka Osuigwe adopted his Brief of argument filed on the 12th day of May, 2014. He raised two issues for determination, viz:

1. Whether the Justices of the Court of Appeal were right in their decision that the Federal High Court had no jurisdiction to entertain the suit on the ground that election having been held that the pre-election matter had become academic or hypothetical

2. Whether the lower court was right to raise the issue that the election having been held that the action had become academic or hypothetical suo motu and resolve same without giving the parties especially the appellant opportunity to address them on the issue.

Ben Osaka Esq of counsel for the 1st respondent adopted its Brief of Argument filed on 13/10/2014 and deemed filed on 10/12/14. He raised two issues for determination which in content are similar to those identified by the appellant though differently couched and they are:

1. Whether the Court of Appeal was right when they held that election having been held and concluded since 9th day of April, 2011, the suit has (sic) become academic and hypothetical and therefore the trial court lacks the jurisdiction to entertain the suit.

2. Whether the issue that he (sic) election having been held and concluded and the suit had become academic and hypothetical was raised suo motu by the court of appeal and whether the parties were given the opportunity to address the court on the issue.

For the 2nd respondent, learned counsel on its behalf, Chief Ikenna Egbuna adopted its Brief of Argument filed on the 9/10/14 and deemed filed on 10/12/14. He crafted a sole issue for determination which is thus:

Whether the court below in any way occasioned a miscarriage of justice by suo motu raising the issue of the applicability or otherwise of Section 141 of the Electoral Act 2010 as amended and resolving same against the appellant after hearing both parties on the issue.

B. C. Igweilo Esq. of counsel for the 3rd respondent formulated a single issue for determination which is thus:

Whether the decision of the court below reached after the court below suo motu raised the issue of Section 141 of the Electoral Act 2010 (as amended), invited the parties to the appeal to address the court on Section 141 of The Electoral Act 2010 (as amended) and its effect on the appellant’s appeal could be said to be a decision reached in breach of the appellant’s right of fair hearing, after the court had heard the parties including the appellant on Section 141 of the Electoral Act 2010 (as amended) and its effect of rendering the appellant’s appeal academic and hypothetical.

It seems to me more convenient to combine the two issues raised by the appellant into a single issue and I shall do so for ease of reference, thus:

Whether the Justices of the Court of Appeal were right in their raising the issue suo motu and reaching a decision thereby that the Federal High Court has no jurisdiction to entertain the suit on the ground that election having been held that the pre-election matter had become academic or hypothetical

Canvassing the position of the appellant, learned counsel Chief Oseloka Osuigwe contended that an action filed before the conduct of election is a pre-election matter which was the case in this instance and there was no provision that such a matter must be concluded before the election proper. That in the absence of any provision in the Constitution or the Act or any other law limiting the time within which pre-election matter may be presented in court, heard and determined the decision of the Court of Appeal was wrong and cannot be supported on any ground. That the Court of Appeal misapplied the case of Imegwu v Okolocha (2013) 9 NWLR (Pt.1359) 347, a case distinguishable with the case at hand. That this matter has not become academic or hypothetical merely because an election has been held as the appellant still raised live issues for the determination by the court in accordance with due process of law.

For the appellant was further contended that the court below suo motu raised the issue of time of filing the suit being academic after holding of election and resolved it without hearing the parties. Also that the issues did not arise from the appeal of the appellant or oral arguments at the lower court and therefore not within the contemplation of the appellant. He referred to Tolorunleke v. Agricultural and Rural Management Training Institute (ARMTI) (2009) 16 WRN 39 (CA), Obumselu & Anor v. Uwakwe (2009) 28 WRN 147 at 167 – 168.

That the issue raised suo motu by the court below was the only issue on which it based the decision that the Federal High Court lacked jurisdiction to entertain the suit as it had become academic or hypothetical and so a miscarriage of justice had occurred on which that decision should be set aside.

Ben Osaka Esq of counsel for the 1st respondent contended that the view of the Court of Appeal that the suit had become academic and hypothetical was sound. He cited Sections 31(1), 32(1), 33 and 141 of the Electoral Act, 2010 as amended. That the trial court lacked the jurisdiction after the holding of the election of 10th April, 2011 to grant the reliefs sought by the appellant as it was incumbent on the person aggrieved like the appellant to timeously bring the action at the Federal High Court or other High Court to seek the relief that he is the appropriate candidate of the party. He relied on CPC v INEC (2011) 18 NWLR (Pt.1279) 493 at 559.

For the 1st respondent was submitted that the appellant from the averment in his Statement of Claim did not participate in all the stages of the election that brought the 3rd respondent as the PDP candidate and as the winner of the election as a member of the House of Representatives representing Aguata Federal Constituency at the National Assembly which election was herd on 9th April, 2011 and so the court cannot declare the appellant the winner of the election. He cited CPC v Ombugadu (2013) 18 NWLR (Pt. 1385) 66 at 119, Sections 31(1), 32(1), 33 and 141 of the Electoral Act 2010.

That it is settled that an amendment to pleadings is not granted as a matter of course and so appellant not having a cause of action cannot be allowed to introduce one to the detriment of the respondents. He cited Bamishabe v Oje (1995) 8 NWLR Pt.411, FBN v Akin Yosoya (2005) 5 NWLR (Pt.918) 840 at 376; Gowon v Ike Okongwu (2003) 6 NWLR (Pt.815) 38 at 49.

Ben Osaka of counsel for 1st respondent argued that the Record did not show the exact issue raised and determined by the Court of Appeal suo motu. That parties are bound by the record and not just what counsel says. He referred to Texaco Panama Inc. v. SPDC Ltd. (2002) FWLR (Pt.96) 579 at 605; Daniel Adeoye v The State (1999) 4 SC (Pt.11) 67.

Chief Egbuna, learned counsel for the 2nd respondent contended that the court below had the unquestionable jurisdiction to ensure the real questions in controversy in any appeal coming before it is distilled provided that no party is thereby denied justice. He cited Section 15 of the Court of Appeal Act 2004, Order 4 Rule 4 of the Court of Appeal Rules 2011 and Order 6 Rule 5 of the Court of Appeal Rules 2011.

For the 3rd respondent was submitted that it is settled law that the issue of jurisdiction or entitlement to a relief cannot be overlooked even by the court and for that reason such an issue can be raised by the court suo motu. That all is required is that the parties or the party affected must be heard before the court gives a decision in respect of the issue raised suo motu. He cited Galadima v Tambia (2000) 11 NWLR (Pt. 677) 1 at 15, Ames Electrical Co. Ltd v F.A.A.N (2002) 1 NWLR (Pt.748) 35 etc.

In summary, the divergent positions are, for the appellant is that there is no time stipulated in the Electoral Act, 2010 for the pre-election matter on the hearing and determination of same to justify the conclusion that pre-election matter becomes academic or hypothetical after the holding of the election. That it is not the duty of the court to impose time limit where none is stipulated by statute and laches and acquiescence or delay defeating equity are defences that have to be proved by evidence and not to be presumed.

The points of view of the respondents are that there are no more live issues in the suit and that the parties were given adequate opportunity to address the court on the issue of the matter being academic and hypothetical with respect to the motion on Notice filed by the 2nd and 3rd respondent.

What is germane to this appeal and really the foundation upon which the matter was fought at the two courts below are gleaned from the judgment of the Court of Appeal at page 514 of the Record and it is as follows:

“This because time is of essence in the determination of issues relating to such nomination before the election. It is clear from the tenor of the provisions of the Electoral Act on the nomination of person as political party candidates for an election that the Act intend that issue concerning such nomination should be finally settled well before the election. The appellant waited until the eve of the election before filing the suit at the trial court complaining that S.87(4)(ii) was not complied with in the nomination for the 3rd respondent. This made it impossible for his complaint to be determined before the election. The filing of the suit on the eve of the election could not have stopped the election…..Now that the election has been held, the suit is rendered academic or hypothetical. A court lacks jurisdiction to entertain such a suit truly stated by the Court of Appeal. The appellant’s suit became a mere academic exercise and hypothetical in nature after the conduct of election of 9th April, 2011”

The stance of the respondent is that the suit of the appellant failed ab initio when he brought the action on the eve of the general election on the 10th day of April, thus the happening of the election robbed the trial court of the jurisdiction to grant the reliefs sought by the appellant.

A little more needs be said on this issue of jurisdiction of the trial High Court which flows up to this point of Apex Court. In that regard it should be stated emphatically even at the risk of stating and restating an overflogged trite issue that jurisdiction is a matter that cannot be overlooked and being so pivotal, crucial, critical and fundamental can be raised suo motu though with the rider that the parties especially the one who would be adversely affected by the issue must be called upon to address the court on it. Then necessary to be brought out is that because of the fundamental nature of the issue of jurisdiction, it can be raised in any form or manner or even orally, the only important point is that the parties be given an opportunity to address the court on the issue so that the right to fair hearing is not breached and a miscarriage of justice thereby occasioned. See Galadima v Tambia (2000) 11 NWLR (Pt.677) 1 at 15, Ames Electrical Co. Ltd v F.A.A.N (2002) 1 NWLR (Pt.748) 35, Amale v. Sokoto Local Government (2012) 5 NWLR (Pt.12912) 181 at 207; PDP v Okorocho (2012) 15 NWLR (Pt.1323) 205 at 255 – 256.
What I am trying to say is that there is no pigeon hole compliance with in the process of either raising the issue of jurisdiction suo motu or asking the parties or counsel on their behalf to address the court on it or how the address is presented. In this case the appellant posits that the court raised the issue of jurisdiction suo motu and did not ask nor obtain the address of the parties on the issue before determining that here was no jurisdiction. This position of the appellant the respondent disagrees with on the ground that when the court raised the issue of Section 141 of the Electoral Act, 2010 (as amended) what was brought out by counsel was sufficient to meet the requirement of an address on the issue of jurisdiction. A recourse to the Record at page 483 to 485 would highlight what transpired at the court below and confirm that the appellant was certainly not left in the dark of a point raised and which the court proceeded to utilise and determine the case or without giving him a hearing. I shall quote thus:

“Osuigwe – Appellant’s Brief is dated 12/09/2011 and filed on 22/09/2011. I adopt and rely on same as our argument in the said appeal. I urge the court to allow the appeal and set aside ruling delivered on 22/02/2011 and send case back for retrial by another Judge. In response on the application of Section 141 of the Electoral Act 2010, I wish to submit that the action commenced as a pre-election at lower court solely on issue of nominating and submission of candidate of 2nd respondent to 1st respondent.

Notwithstanding the pendency of the suit the appellant participated in all the processes culminating into 2011 elections into the House of Representatives Aguata Federal Constituency of Anambra. Section 141 of the Electoral Act is not applicable to this appeal. The facts which would activate Section 141 of the Electoral Act. It happened after the decision of the lower court. I urge the court to allow the appeal. I wish to refer to case of Hope Uzodinma v Izunaso (NO. 2) 2011 17 NWLR (Pt.1275) 30 at 60 – 61. I refer to page 182 of the record bearing name of appellant as candidate of PDP. I also refer to Section 87(4)(c) (11) of the Electoral Act 2010 which defined who is candidate of a political party is. The provision is mandatory on the 2nd respondents. At page 120 of record INEC declared the result and appellant was declared as the person who has the highest.

I urge the court not to apply provisions of Section 141 of the Electoral Act as it would be premature at this stage. It does not apply to the circumstances of this case. I submit that Section 141 applies to post election matters. Election Petition Tribunals do not deal with pre-election matters. It is only in post election matters that name (sic) of full participation will be determined.

Interpreting it otherwise would amount to depriving the appellant his right of action conferred on him by Section 87(9) of Electoral Act (as mended) as a person aggrieved that Guidelines of PDP was not fully applied with.
We did not ask the relief to be declared winner of the election. I urge court to allow the appeal.

Mr. Anyigbo – The 1st respondent’s Brief of Argument dated and filed on 3/02/2012 brief deemed properly filed and served on 13/5/2013. I adopted and rely on the said brief as our argument in urging the court to dismiss the appeal and uphold the decision of lower court declining jurisdiction.

Nnadi SAN – I oppose the appeal of the appellant. We filed the 2nd and 3rd respondents’ Brief of Argument dated 8/11/2011 and filed on 9/11/2011 but deemed properly filed on 16/12/2013. I adopt and rely on the aforesaid Brief and urge the court to dismiss the appeal as lacking in merit.

In amplification of appeal, I want to state that the suit was filed on 8/9/2011 while election was held on 9/4/2011, a day before election.
See pages 364-366 of the record shows the return or declaration of result of election and Certificate of Return of the 3rd respondent.

By that very fact relief claimed by the appellant in paragraphs (f) cannot be granted of Section 141 of the Electoral Act 2010 and case of Imegwu v Okolocha (2013) (pt. 1359). See Tukur v UBA (2013) 14 NWLR (Pt. 1343) 90 at 162 – 163.

The Supreme Court held that the only relief to be claimed on damages does not include jurisdiction of substitution as earlier done in Amaechi’s case. He had not claimed for damages. INEC cannot impose candidate on a party what is important is the nature of relief claimed.

I submit that Section 141 of the Electoral Act applies to this appeal. He has referred copiously to record of appeal. See pages 97 – 101 the court will see result of the primaries. INEC did not exhibit primaries but the 3rd respondent did. Looking at the reliefs as sought by the appellant and the ultimate goal of the relief which is paragraph (sic) which this court cannot grant same.

Having seen the certificate of return and declaration of result, the appellant cannot seek the relief sought for where the Federal Government Agency is not involved then the Federal High Court has no jurisdiction.

Even if court has power to transfer case, if the object of the case cannot be met, the grant of the order is meaningless. I urge the court to dismiss the appeal and affirm the decision of the lower court.

Chief Osuigwe – the court should confine itself to the appeal before it. Whether the matter will succeed or not, the appellant should be given opportunity. I submit that the appeal is not academic or hypothetical.

My learned senior misapplied the cases of Imegwu v Okolocha and Tukur v UBA (supra), Section 86(1) of the Electoral Act which makes it mandatory on the respondent to keep record.”

It is clear and I agree with learned counsel for the respective respondents that the contention of the appellant that the court raised the issue of jurisdiction suo motu and made a finding and determination on it without allowing the parties a hearing especially the appellant is not supported by the Records. That however dio not justify reaching the decision the lower court made.

Having settled the matter of whether or not the parties were given the opportunity of being heard on the issue of jurisdiction, the other aspect that is to be taken in hand is if the issue before court is alive. I am persuaded by learned counsel for the 3rd respondent that courts cannot make orders contrary to statute or make orders in vain as the reliefs sought by the appellant were not grantable as the matter had entered into the realm of the academic or the solving of a hypothetical question, a duty not for the court. I rely on the cases of Attorney- General of the Federation v. ALL Nigeria Peoples Party (ANPP) (2003) 18 NWLR (Pt. 851) 182; Adepoju v Yinka (2012) 3 NWLR (Pt.1288) 567 at 584; Mammon v Salaudeen (2005) 18 NWLR (Pt.958) 478.

Infact what the appellant is seeking is based on the viewpoint among others that there was no evidence before the court on when the cause of action arose or when the appellant became aware that he was not the person whose name was sent. The appellant had pleaded copies of results of the primaries which took place on 10th January, 2011 where he purportedly emerged as winner but the name of the 3rd respondent was submitted as the winner instead of himself. It is not in dispute that the appellant waited till the 8/4/2011, eve of the general election of 9/4/2011, it was still within the ambit of a pre-election matter and so the jurisdiction was not ousted. Though the appellant is seen as seeking to push the court into entering into the internal affairs of the party in the process of producing through primaries or any other indirect method who it’s candidate is, which the court is not qualified for, however the lower court was wrong in holding there was no jurisdiction. In this there is a surplus of judicial authorities but I will refer to just Hope Uzodinma v Izunaso (2011) 17 NWLR (Pt.1275) 30 at 60 – 61; Tukur v UBA (2013) 14 NWLR (Pt. 1343) 90 at 162 – 163.

In conclusion I see nothing on which to depart from the lead judgment reasoning. I allow this appeal and abide by the consequential orders made

OLU ARIWOOLA, J.S.C.: My learned brother Dattijo Muhammad, JSC obliged me with a copy of the draft of the lead judgment just delivered. I am in total agreement with the reasoning therein and the conclusion arrived thereat, that the appeal is meritorious and should be allowed. All the issues raised in the appeal were admirably dealt with in the lead judgment and I have nothing new to add.
Accordingly, the appeal is also allowed by me.
I abide by the consequential orders in the said lead judgment including the order on costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This is an appeal against the judgment of the Court of Division delivered on 3/2/2014 dismissing the appellant’s appeal against the ruling of the Federal High Court, Awka delivered on 23/7/2011.

The appellant and three others, including the 3rd Respondent contested the Peoples Democratic Party’s primaries for election of the candidate to represent Aguata Federal Constituency in the House of Representatives at the National Assembly. The primaries were conducted on 10th January, 2011. At the conclusion of the exercise the 3rd Respondent was said to have scored the highest number of votes and her name was submitted to INEC (1st Respondent) as the party’s candidate. The appellant, however, contended that he was the one who scored the highest number of votes and that it was his name that should have been submitted to the 1st respondent. Being dissatisfied with the outcome of the primaries, he instituted an action before the Federal High Court sitting at Awka (the trial court) for, inter alia, a declaration that he is the lawful candidate of the PDP (2nd Respondent) for the House of Representatives Aguata Federal Constituency; that the 3rd Respondent is not the winner of the primaries and for an order substituting or replacing his name for that of the 1st respondent as the candidate of the PDP for the said Aguata Federal Constituency.

The suit was filed on 8th April, 2011 on the eve of the election, which took place on 9th April, 2011.

The 2nd and 3rd Respondents (as 2nd and 3rd defendants) entered a conditional appearance to the suit and filed a joint Statement of Defence. They also filed a motion on notice challenging the court’s jurisdiction to entertain the suit on various grounds. On 22/7/2011 the trial court struck out the suit for want of jurisdiction. The court ruled:

1. That the 1st Respondent (INEC) is not a necessary party to the suit;

2. That it lacked jurisdiction to entertain the action as it did not fall within the provision of Section 251(1)(p) (q) and (r) of the 1999 Constitution; and

3. That the Federal High Court lacks jurisdiction to hear and determine pre-election matters.

The appellant was dissatisfied with this decision and filed an appeal before the Enugu Division of the Court of Appeal.
At the hearing of the appeal the court, suo motu, invited the parties to address it on whether the appeal had not become academic since the election had already taken place on 9th April, 2011 and 3rd respondent had assumed her seat in the House of Representatives and also in view of the decision of this court in Imegwu Vs Okolocha (2013) 9 NWLR (Pt.1359) 347 and the provision of Section 141 of the Electoral Act. The parties addressed the court accordingly. In respect of the issues for determination formulated by the appellant and adopted by the respondents, the court held, inter alia, that INEC is a necessary party to the suit and that by virtue of Section 87(9) of the Electoral Act 2010 (as amended) the Federal High Court has jurisdiction to entertain a suit at the instance of an aspirant who alleges that any of the provisions of the Act or the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for an election.

However, notwithstanding the resolution of the issues for determination in the appeal in the appellant’s favour, the lower Court dismissed the appeal based on the issue it raised suo motu and held that the election having taken place, the suit had been overtaken by events and rendered academic and that in the circumstances the trial court lacked jurisdiction to continue to entertain it. The appellant, not surprisingly is dissatisfied with the decision. This is the crux of the appeal now before this court.

The appellant formulated two issues for determination, to wit:

1. Whether the Justices of the Court of Appeal were right in their decision that the Federal High Court has no jurisdiction to entertain the suit on the ground that election having been held that the pre-election matter had become academic or hypothetical.

2. Whether the lower court was right to raise the issue that the election having been held that the action has become academic or hypothetical suo motu and resolve same without giving the parties especially the appellant the opportunity to address them on the issue.

The 1st respondent adopted the two issues above with slightly different wording. The 2nd and 3rd respondents each formulated a single issue for determination arising from the appellant’s issue 2.

Since the appellant’s issue 2 borders on the issue of fair hearing, I shall discuss it briefly first before commenting on the issue of jurisdiction. If the allegation of lack of fair hearing is established, the entire proceedings would amount to a nullity.

There would be no need to proceed further. On the issue of a court raising an issue suo motu, see the recent decision of this, court in: Ejike Vs Okoye SC.279/2011 delivered on 8th May 2015 (as yet unreported) wherein I stated thus:
“The position of the law is that a court is not entitled to raise an issue and decide on it without affording the parties an opportunity to be heard. This is because in doing so the court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti Vs Balogun (1978) 1 SC 53 @ 60; Obawole Vs Williams (1996) 10 NWLR (Pt.477) 146; Stirling Civil Eng. (Nig.) Ltd. Vs Yahaya (2005) 11 NWLR (Pt.935) 181; Omokuwajo Vs F.R.N. (2013) 9 NWLR (Pt.1359) 300; Ominiyi Vs Alabi (2015) LPELR – SC.41/2004. An appellate court is also not entitled to raise an issue not raised by either of the parties at the trial court or on appeal and base its decision thereon without affording the parties an opportunity to be heard. The court, being an impartial arbiter, must never be seen to be making a case for one of the parties.”
Order 6 Rule 5 of Court of Appeal Rules 2011 empowers the court to decide an appeal on an issue not contained in the grounds of appeal provided that if it allows the appeal, it should not rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground. In other words, the parties must be heard before any decision can be based upon an issue raised suo motu by the court. It must be emphasized that the court’s power to raise an issue suo motu must be sparingly and judiciously exercised.

In the instant case, a careful scrutiny of the record reveals that the parties addressed the issue raised by the court at pages 483 and 484 of the record. At page 483 of the record, learned counsel for the appellant addressed the issue of the applicability of Section 141 of the Electoral Act and at page 484a in his reply on points of law he urged the court to confine itself to the appeal before it and maintained that the appeal is not academic or hypothetical.
The record belies the appellant’s contention that the parties were not given an opportunity to be heard, I resolve this issue against the appellant.

With regard to the appellant’s first issue, it goes without saying that the appellant’s contention that he was the person who scored the highest number of votes at the PDP primaries and whose name ought to have been submitted to INEC as the Party’s candidate to contest the seat for the Aguata Federal Constituency in the House of Representatives at the National Assembly, is a complaint that falls within the purview of Section 87(9) of the Electoral Act 2010 (as amended), which provides thus:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
As rightly held by the court below, the Federal High Court certainly had jurisdiction to entertain the appellant’s claim. The bone of contention is the view of the lower court that the appellant failed to act timeously having taken steps to challenge the outcome of the primaries only a day to the conduct of the general election and that the election having been conducted and a winner declared, his complaint became academic.
It is settled law that a pre-election matter instituted prior to the conduct of an election subsists and the High Court in which it was instituted continues to have jurisdiction to hear and determine the suit even after the conduct of the election. See Gwede Vs INEC (2014) 18 NWLR (Pt. 1438) 56; Amaechi Vs INEC (2008) ALL FWLR (Pt.407) 1; Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554 @ 622-623.
While it is true that the election had taken place with 3rd Respondent as the 2nd Respondent’s candidate and the 3rd Respondent has since been sworn in, the lower court was wrong to hold that the appellant’s claim was academic. The trial court had jurisdiction to hear the case being a pre-election matter filed before the holding of the election. The fact that the election had taken place before the trial commenced is not sufficient to render it academic. See the position of this court as held in Gbileve Vs Addingi (2014) 16 NWLR (1433) 394; Gwede Vs INEC (2014) 18 NWLR (1438) 56; Barr. Orkere Jev & Anr. Vs Sekav Dzua Iyortom & Ors. SC.164/2012 delivered on 27/2/15 wherein this court ordered the Appellant/or Applicant to assume their seats in the National Assembly even though the election had long since taken place and another person had been sworn in.
While the observation of the lower court that time is of the essence in respect of a complaint about the nomination of a candidate for an election cannot be faulted, it is also settled that no time limit has been prescribed for the exercise of that right under Section 87(9) of the Electoral Act 2010 (as amended). It is no doubt desirable that a person aggrieved with the conduct of his party’s primaries should take steps to ventilate his grievance as early as possible so that it can be resolved before the conduct of the election but he does not forfeit that right if he institutes his action before the holding of the election but it is not heard until after the election takes place. This court held in: Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 522 F per Onnoghen, JSC:
“The jurisdiction conferred on the High Court by the above Section of the Act [Section 87(9)] is not limited to time, let alone circumscribed between the holding of the primary election and submission of the name of the nominated or sponsored candidate by the political party concerned. The provisions of Section 87(9) supra is very clear and unambiguous and should be given its natural and plain meaning.”
Significantly, at page 522 G – H (supra), His Lordship held further:
“… The provisions of Section 87(9) supra is not made subject to any provisions of the Act. Rather it operates ‘notwithstanding the provisions of the Act or Rules of a political party …’ “. In other words, it overrides any other provision of the said Act, including Sections 31(1), 33 and 35 thereof.”
Per Ogunbiyi, JSC at page 533 B – C (supra):
“From all indications, the construing intendment and operational extent of Section 87(9) is neither dependent upon the Act itself nor the rules of political parties. The Section operates independently … The jurisdiction of the court in other words cannot be ousted.”
The above dicta highlight the misconception of the court below that the jurisdiction of the trial court was ousted because Sections 31(1), (4), (5) and (6) of the Act could no longer be invoked once the election has taken place. I agree with my learned brother, Dattijo Muhammad, JSC, whose lead judgment I was privileged to read before now, that the restriction placed by the lower court on the operation of Section 87(9) of the Electoral Act is not supported by the clear and unambiguous language of the said provision. It is for the above stated reasons and the more detailed reasons articulately adumbrated in the lead judgment that I also allow this appeal. The parties shall bear their respective costs.

Appearances

Chief G. O. Osuigwe with Onyeka Osigwe For Appellant

AND

Ben Osaka for the 1st respondent
Chief Ikenna Egbuna for the 2nd respondent
B.C. Igwilo with S. N. Obinna, Mary A. Ekwe (Miss) and Cyndy Orji (Miss) for the 3rd respondent For Respondent