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