Hon. Polycarp Effiom & Ors. V. Cross River State Independent Electoral Commission & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

This appeal is against the decision of the Calabar Judicial Division of the Court of Appeal delivered on the 8th of July, 2008 dismissing the earlier appeal against the decision of M. O. Eneji J. of the Akamkpa Judicial Division of the High Court of Cross-River State on the 2nd of November, 2007.

The action itself was commenced at the trial High Court on the 23rd of October, 2007 by way of an originating summons. The Plaintiffs who were the Appellants at the court below and also the Appellants herein sued for themselves and on behalf of all other members of the Peoples Democratic Party (PDP) Akamkpa chapter, excepting the 2nd Defendant and his supporters. They were also described in the summons as aspirants to the position or office of the chairman of Akamkpa Local Government Council under the platform of the PDP for the 2007 Local Government Election and/or the party’s stalwarts in the Local Government Area.

In the summons the following four questions were set down for determination:-

1. WHETHER the 2nd defendant, who was dismissed from the service of the Nigeria Police Force, is qualified to contest election to the office of Chairman of Akamkpa Local Government Council.
2. WHETHER, in view of the provision of paragraph 4 (g) of the Guidelines Council Government Council elections, 2007 issued by the 1st Defendant, the 2nd Defendant can be cleared by the 1st defendant to contest the forthcoming Local Government election in Cross River State.
3. WHETHER it is proper for the 2nd defendant to be presented to the 1st defendant for clearance to contest the forthcoming Local Government Elections in November, 2007 considering the provisions of paragraph 2 (d) of the Peoples Democratic Party Special Ward and Local Government Congress Guidelines for 25 Ward Delegates, Councillorship Candidates or
4. WHETHER the presentation of the 2nd defendant to the 1st defendant by the Peoples Democratic Party (PDP) to contest the 2007, Local Government Elections in Akamkpa Local Government Area is not a contravention of the provision of paragraph 3 (d) of the PDP’s Guidelines for the Screening of candidates for the said election; paragraph 4 (g) of the CROSIEC Guidelines for Local Government elections and section 12 (1) (f) of the Cross River State Local Government Law, 2004.

And therein the Plaintiffs/Appellants sought against the Defendants/Respondents jointly and severally the following reliefs:-

1. A DECLARATION that the 2nd defendant, having been dismissed from the Public Service of the Federation, is disqualified from contesting election into the office of chairman of Akamkpa Local Government council and to hold the position of Chairman of the Local Government Council and/or such other Public Office.
2. A DECLARATION that the 1st defendant cannot lawfully present the 2nd defendant to contest the forthcoming Local Government Elections in Cross River State in view of the provisions of paragraph 2 (d) of PDP’s Special Ward and Local Government Congress Guidelines for election of 25 Ward Delegates, Councillorship and Local Government Chairmanship candidate; paragraph 4 (g) of the CROSIEC Guidelines for Elections, 2007 and section 12 (1) (f) of the Cross-River State Local Government Law, 2004.
3. AN ORDER OF MANDATORY INJUNCTION directing the 1st defendant to disqualify the 2nd defendant from contesting the forthcoming Local Government elections in Cross-River State and restraining the 1st defendant perpetually from putting forward the 2nd defendant as a candidate to contest the forthcoming Local Government Elections in Cross-River State or any other such elections or to hold any such public office.

Each of the 1st and 2nd Defendants/Respondents filed a counter affidavit on the 1st November, 2007. To the counter Affidavit of the 2nd Defendant/Respondent were attached Exhibits EA 1, EA 2, EA 3, and EA 4-EA 7. Earlier, on the 19th October, 2007 there were two counter-affidavits of disassociation deposed to by Lawrence Ogar and the other by Alhaji Ibrahim Iransina.

On behalf of the parties learned counsel submitted written as well as oral addresses. In its judgment on the 2nd of November, 2007 the trial court per Eneji J. struck out the suit for lack of clear proof.

The Plaintiffs were not satisfied with the said judgment and proceeded on appeal to the Court of Appeal by their Notice of Appeal dated the 2nd of November, 2007 but filed on the 8th November, 2007. Therein briefs were, on behalf of the parties, filed and exchanged and the appeal subsequently heard. In its unanimous judgment on the 8th of July, 2008 the appeal was dismissed.

The plaintiffs were still not satisfied and have come to this court on further appeal. The Notice of Appeal was dated the 21st of July, 2008 and filed on the 24th of July 2008. Here again the parties have through their counsel filed and exchanged their briefs of argument. The joint Appellants’ Brief was settled by MBA E. Ukweni and it was filed on the 29th of October, 2008. He also settled the Appellants’ Reply Brief which was filed on the 26th of March, 2009. The brief of the 1st Respondent was prepared by Ikoi Ekpo Ikona and it was filed on the 2nd of April, 2009. That of the 2nd Respondent was prepared by Imo Inyang and it was filed on the 22nd of January 2009.

In the Appellants’ brief learned counsel formulated two issues for determination as follows:

1. WHETHER the learned Justices of the Court of Appeal were right when they suo motu raised and considered the propriety of the suit and locus standi of the Appellants to challenge the nomination of the 2nd Respondent to contest the election which were not live issues before them and for doing so without giving the parties, particularly the Appellants, the opportunity to address them on the points
2. WHETHER the learned Justices of the Court of Appeal had properly addressed the issues placed before them and applied the appropriate and applicable law to those issues.

The 1st Respondent adopted the issues formulated by the Appellants. The 2nd Respondent however formulated his own two issues which he couched in the following terms:

“1. WHETHER the learned Justices of the Court of Appeal were right in holding that the 2nd Respondent was not disqualified from contesting the election for the office of chairman of Akamkpa Local Government Council.

2. WHETHER the learned Justices of the Court of Appeal had power to suo motu raise and consider the issue of the competency of the suit and the locus standi of the Appellants and if not whether the same occasioned substantive miscarriage of justice justifying the reversal of their judgment.”

The 2nd Respondent also raised a preliminary objection to the competence of the appeal which was argued in his brief.

On the first issue it was the contention of the Appellants that there was no issue before the lower court which either challenged the competence of the suit or the locus standi of the Appellants to institute the suit, it was pointed out that the issue of the locus standi of the Appellants was only raised at the trial court and which was resolved therein in favour of the Appellants and against which there was no appeal to the court below. It was submitted that neither the parties nor the court was at liberty to go outside the issues presented to the court; reliance was placed on EGBEZIEM vs NIGERIAN RAIL WAY xxxxx ADENJI v. ADENJI (1972) 4 SC 10 at 17 and EASCUTTO vs ADECENTRO NIG. LTD. (1997) II NWLR (Part 529) 467 at 481. It was also the Appellants’ complaint that after the issue had been raised sou motu they were not given the opportunity to address on it, contending that had they been or given such opportunity they would have shown that they had the locus standi and that the suit was competent. It was Appellants’ submission that a court of law is not entitled to raise an issue and resolve it one way or the other without hearing the parties, They relied further on OSHODI vs OYIFUNMI (2000) 13 NWLR. (Part 684) 298; UGO vs OBIEKWE (1989) 1 NWLR and ALLI vs ALESINLOYE (2000) NWLR (Part 660) 177 at 211-212.