Ozonma (Barr.) Chidi Nobis- Elendu V. Independent National Electoral Commission (Inec) & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

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.”