Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATTA BDLIYA, J.C.A. 

This is an appeal against the judgment of the Federal High Court Abuja, (the lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st and 2nd respondents (who were the Plaintiffs) at the lower Court instituted the suit against the appellant (who was the defendant) by an originating summons filed on the 22nd of December 2014 which was amended on originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The appellant and the 1st and 2nd respondents are members of the 3rd respondent. The 3rd respondent conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and the 3rd respondent’s Constitution. At the conclusion of the primary election, the 3rd respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The appellant then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the 3rd respondent as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State. The 1st and 2nd respondents were dissatisfied with the election of the appellant (3rd respondent), hence they instituted the suit at the lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 27th of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the lower Court, the appellant filed three (3) different Notices of appeal, which can be found on pages 1116-1120; 1121-1126 and 1127-1130 respectively, all contained in vol. I of the record of appeal. However, the appeal has been argued on the Notice of appeal dated 20th and filed on the 21st of July, 2016.

The appellant’s brief of argument was dated and filed on the 22nd of July 2016, wherein six (6) issues have been distilled from the Notice and grounds of appeal, on page 4 thereof. The six (6) issues are thus:

(i) Considering the far-reaching definitive findings made by the lower Court on the merits of the case before it whilst considering preliminary objections, whether the judgment of the lower Court is not liable to be set aside as perverse. – Ground 1.
(ii) Considering the questions for determination in the amended originating summons, the reliefs claimed thereat, and the exhibits presented as evidence, whether the lower Court acted without jurisdiction to predicate its judgment on Articles 14 and 14(a) of the PDP Guidelines for primary election 2014 and the primary elections of the PDP. – Grounds 2, 3, 4, 6, 7, 13 and 18.
(iii) Considering the claim in the amended originating summons premised on submission of documents to INEC on 26th December, 2014, whether the claim at the lower Court was/is not premature and incompetent. Ground 27.
(iv) Considering the criminal nature of the findings made by the lower Court and the hostile nature of the plaintiffs’ case, whether the said Court was not wrong to have heard and determined the case before it using the originating summons procedure. – Grounds 26 and 28.
(v) Whether the lower Court was not wrong to have decided to adopt its findings in SUIT NO. FHC/ABJ/CS/71/16 – Dr. Sampson Uchechukwu Ogah v. PDP & Ors. to this suit.
(vi) Considering the totality of the evidence placed before the lower Court vis-à-vis the applicable laws and the 1999 Constitution of the Federal Republic of Nigeria (as amended) whether the lower Court was not wrong in granting the claims of the plaintiffs before it and exercising jurisdiction in the way and manner it so did. – Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 21, 22, 23, 24, 25, 29 and 30.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 3, six (6) issues which are not dissimilar to those contained in the appellant’s brief of argument have been culled from the Notice and grounds of appeal. The 3rd and 4th respondents did not file brief of argument. A reply trial was filed on the 4th of August, 2016.

At the hearing of the appeal on the 9th of August 2016, the Court drew the attention of learned counsel to the parties to pages 3 to 5 and 563-565 of vol.1 of the record of appeal where the originating summons and the Amended Originating Summons could be found, and invited them to address it as to whether the two (2) processes initiating the suit had been signed by the parties or their counsel as required by law. The Court considered it necessary to draw the attention of learned counsel and invited them to address it because the issue raised has not been raised and dealt with by the lower Court nor did the parties raise it in their briefs of argument. The issue has been raised suo motu, by the Court, because it is jurisdictional, that is, it involves the competency of the suit filed at the lower Court, and its jurisdiction to have entertained and or adjudicated same if it is established that the initiating processes have not been signed by the parties nor by their counsel as required by law.

I am not unmindful that a Court of law, either of first instance or appellate, should be reluctant to raise an issue(s) suo motu. For as pointed out in Shirting Civil Engr. v. Yahaya (2005) 5 SCM P. 101 @ 192, that:

“In our adversary system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu, it has removed itself from its exalted position to flirt with the parties and in the course gets itself soiled in the litigation€¦ Though a Court has the jurisdiction to raise an issue suo motu; it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to reach to the issue by way of address. On no account should a Court of Law raise an issue suo motu and resolve it suo motu”.

TOBI, J.S.C. (of blessed memory) had this to say in Okonkwo v. Cooperative & Commerce Bank (2001) 13 NSCCER P. 688 @ 735.

“While a Court has the jurisdiction to raise a matter suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a Court of law should be most reluctant to raise suo motu. When it does not, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The Court was in serious error for not giving the right to counsel to react to the issue of waiver which it raised suo motu”.

Onnoghen, J.S.C, in the case of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P. 330 @ 346 said:
”It is settled law that though a Court of law may raise an issue suo motu. It cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that parties or their counsel to address it on that issue. In other words a Court of law has the vires to raise issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu”.

This Court, per Ariwoola, JCA (as he then was) adumbrated in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) P. 1 @ 33, that:
“Though it is ordinarily not offensive for the Court or tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties”.

It was in view of the foregoing judicial pronouncements of the Apex Court and this Court on raising an issue suo motu by the Courts in the adjudication processes that this Court drew the attention of learned counsel to the parties, and invited them to address the Court on the issue raised by it.

The importance of jurisdiction cannot be underrated for purpose of litigation. Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) P. 566; Opara v. Amadi (2013) 12 NWLR (Pt. 1369) P. 512. The issue of jurisdiction can be raised at any stage of the proceedings even at the appellate stage. Since jurisdiction is regarded as a threshold issue and a lifeline for conducting any proceedings, same ought to be taken and determined at the earliest opportunity. This is because any step taken in the proceedings where there is no jurisdiction, the entire proceedings are a nullity no matter how brilliantly handled or concluded. Western Union Works Ltd. v. Iron & Steel Workers Union (No. 1) (1986) 3 NWLR (Pt. 30) P. 617; Ndaeyo v. Ogunnaya (1977); I.B.W.A. v. Imano (Nig) Ltd. (1988) 3 NWLR (Pt. 85) P. 633; Dweye v. Iyomahan (1983) 2 SCNLR 135.