DANLADI DANBEKI & ORS V. ANDEKIN Y. RIKI & ORS
April 1, 2025HON. JOHN B. YEP & ANOR V HON. CHRISTOPHER D. SAMUEL & ORS
April 1, 2025Legalpedia Citation: (2020) Legalpedia (CA) 46661
In the Court of Appeal
HOLDEN AT BENIN
Wed Jun 17, 2020
Suit Number: CA/B/128/2020
CORAM
PARTIES
ALL PROGRESSIVE CONGRESS
KENNETH O. ASEKOMHE 7 ORS
AREA(S) OF LAW
SUMMARY OF FACTS
This is an appeal emanating from a ruling of the Federal High Court; sitting in Benin City. The 1st and 2nd Respondents who were the Plaintiffs moved an ex-parte motion for four prayers. The action of the 1st & 2nd Respondents is a pre-election matter challenging the mode to be adopted in the primaries election of the Appellant for the nomination of the flag bearer of the party- All Progressives Congress (APC) in the forthcoming Governorship election of Edo State, coming up in September, 2020 whether it is going to be direct as agreed upon by the Appellant on 21st of May, 2020 or indirect as the 1st & 2nd Respondents are contending. On the 8th day of June 2020, being the adjourned date, the parties made sundry oral applications with reference to their various processes, applications and notices of preliminary objection filed in the suit. In its decision to adjourn the case to another day, the Court, after referring to its earlier order for the Defendants to show cause why the Plaintiffs (now 1st and 2nd Respondents’) motion for interim preservative order should not be granted, made four orders including that all applications and responses thereto should be heard alongside the 1st and 2nd Respondents originating summons; that the parties file and serve their responses, if any, to the processes served on them within 2 days; and that the hearing of all applications together with the originating summons be adjourned to the 11th day of June, 2020. The Appellant was not satisfied with the decision of the trial court hence; it filed a notice of appeal. The 1st and 2nd Respondents filed a preliminary objection to the hearing of the appeal, on grounds that the instant appeal is an interlocutory appeal filed without the leave of this Honourable Court or that of the trial Court, and that the sole issue formulated for determination in the Appellants brief of argument does not emanate from the sole ground of appeal in the Notice of Appeal dated 10th of June, 2020.
HELD
Appeal Allowed.
ISSUES
Whether the learned trial Court judiciously exercised its discretion to make the injunctive orders on the parties not to do anything or proceed with any action relating to or concerning the procedure to be adopted or used by the 1st Defendant to conduct or hold the 1st Defendant Primary Election pending the hearing and determination of the substantive suit
RATIONES DECIDENDI
PRE-ELECTION MATTERS –WHETHER THE REQUIREMENT TO SEEK AND OBTAIN LEAVE OF COURT UNDER SECTION 233(3) OF THE CONSTITUTION IS APPLICABLE TO PRE-ELECTION MATTERS
“The Supreme Court has held that there is no requirement to seek and obtain leave to appeal in pre-election/election related matters. The Court held in Ojobo V. Moro(2019) 17 NWLR (PT.1700)166 @ 178 PARAS E-D as follows at pg. 178:
Obviously, with the amendment to Section 285 of the Constitution by the Fourth Alteration Act, No.21 of 2018 , which catapulted pre-election matters to the same pedestal as election petition cases, it is not business as usual, Section 285(11) now stipulates that
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment.
Litigants and counsel alike have, over the years, learnt to live with the fact that election petitions are time bound and act accordingly. With pre-election matters being time bound, they must learn that pre-elections matters are outside the realm of civil proceedings, therefore, applications for leave to appeal, are now out of bounds. Thus, the objection raised by the first respondent is overruled.
See also Obazee V. Ekhosuehi (2019) 17 NWLR (PT. 1701)245 @ 257 PARA D where the Court held that:
This Court in All Progressives Congress (APC) v. Senator kabiru Garba Marafa (Unreported) decision in SC. 377/2019 delivered on 24 May, 2019 held at page 34 per Galumje JSC following Obih v. Mbakwe(1984) LPELR 2172 (SC), (1984) 1 SCNLR 192. That election or pre-election matters are in a class of their own and time is of the essence. That being the case the provision of Section 233(3) of the Constitution does not apply to elections and related matters.
That decision Law of the Supreme Court in relation to the dispensation with the need to seek and obtain leave in pre-election matter pursuant to Section 233 (2) of the 1999 Constitution relates mutantis mutandis to the similar Section 241 (1) (b) of the 1999 Constitution governing leave to approach the Court of Appeal in pre-election matters.
ISSUE FOR DETERMINATION – WHETHER AN ISSUE FOR DETERMINATION MUST BE COUCHED IN THE WORDS OF THE COMPLAINT FOR IT TO BE COMPETENT
“…it is my view that the couching of an issue for determination may not necessarily be in the words of the complaints as stated in the ground of appeal. So long as an issue is formulated which relates to the ground of appeal, that issue is a competent issue for determination. It is my humble view that the issue as distilled relates with the ground of appeal.
ISSUE OF JURISDICTION – WHETHER COURT CAN MAKE A RESTRAINING ORDER WHEN ITS JURISDICTION IS BEING CHALLENGED
“It is my humble view that at this stage of the proceedings of the trial Court, the issue of the jurisdiction of the trial Court to determine the substantive suit before it cannot be brought up to this Court for determination since the trial Court has not made a decision one way or the other on that head. I am also of the firm but humble view that the issue of the Constitutionality of Section 87 (10) of the Electoral Act (2010) as amended vis-a-vis the wide and inherent powers of the Court as enshrined in Section 6(6) of the 1999 and inherent power of the Constitution (as altered) is not the immediate issue for consideration. That is a substantive point of law also yet to be determined by the trial Court. There is no doubt that the learned trial Judge has the inherent right to exercise discretionary powers as donated by Order 56 Rule 1 of the Federal High Court Civil Procedure Rules 2019 even when such exercise of judicial discretion as in this case had not been asked for by any party outside the processes seeking and opposing the exercise of such powers by the parties. I will not now delve into the question of whether the inherent powers of the Court to administer justice can override statute. However, it is settled that a Court should not ordinary make a restraining order in the face of a rightful or wrongful challenge to its jurisdiction, except in circumstances where there is evidence that the res would be destroyed in the immediate future.
See one of the recent authorities on this suit Brittania-U (Nig.) Ltd V. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (PT. 1503) 541 @ 602 PARAS D-F when the Court held that:
When its jurisdiction to hear and determine any cause before it is in issue, it is a threshold matter which the Court must determine before taking any further step in the case for proceeding conducted without jurisdiction is and remains a nullity. See Peenok Inv. Ltd. V. Hotel Presidential Ltd (1982) a nullity. See Peenok Inv. Ltd. National Bank V. Soyoye (1977) 5 SC 181.
At a challenge to its jurisdiction, the only jurisdiction the Court can exercise is to determine whether or not it has jurisdiction in the matter. The order made on 27/1/2014 to extend the life span of a spent order, in the face of a challenge to its jurisdiction not yet decided, is a nullity.”
2. Court cannot make a restraining order when its jurisdiction is being challenged. In NDIC V. C.B.N. (2002) 7 NWLR (Pt.766) 272 @ 291-292 PARA H-H, the Court:
At this stage it may be pointed out that the Respondent sought an interlocutory injunction pending the determination of the substantive suit on the basis, in law, that there is a serious question to be tried.
But first, it has to be plain to everyone, not least the Courts, that the Court has jurisdiction to entertain the suit. The Court must not give an order in the suit affecting the defendants until the issue of jurisdiction is settled when it has been raised.
COURT – WHETHER COURTS HAVE JURISDICTION TO STOP THE HOLDING OF PRIMARIES OR GENERAL ELECTION PENDING THE DETERMINATION OF A SUIT
“It has always been the general attitude of the Courts that the Courts lack jurisdiction to restrain a political party from conducting its primaries or INEC from conducting election. It is an entrenched principle of democracy established by the Courts and by statutes.
In Okasia V. Oguebego & Ors (2018) LPELR24520 (CA) @ PG.29-30, PARAS C-A this Court held as follows: –
by Section 87 (10) of the Electoral Act, 2010 (as amended) Courts are forbidden from stopping the holding of primaries or general election under the Act pending the determination of a suit relating to nomination. It follows therefore that a Court ought not to reverse the result of primaries properly held under the Act even if that was done during the pendency of a suit relating thereto on that account only. It also follows that the order of the lower Court stated above could not be right. This is the more so since the power to conduct primaries rests in the National Executive Committee of the appellant. See Emenike V. PDP (2012) 12 NWLR (1315) 556 and Emeka V. Okadigbo (2012) 18 NWLR (1331) 55.
Also in Pauline Mianaekere V. Peoples Democatice Party & Ors (2014) LPELR-22987 (CA) @ PG.31, PARAS E-F, the Court held as follows:
This is moreso, if one considers the provisions of Section 87(10) of the Act, which clearly prevents a Court from stopping the holding of primaries or general election pending the determination of a suit.
EXERCISE OF DISCRETION – CONSEQUENCE OF A COURT’S EXERCISE OF JUDICIAL DISCRETION WITHOUT GIVING PARTIES OPPORTUNITY TO BE HEARD ON THE PROPRIETY OR OTHERWISE ON THE GRANT OF AN INJUNCTIVE ORDER
“We must remember that being a pre-election matter even if we concede that the issues before the trial Court are justiciable, the trial Court had constitutionally the luxury of 6 months to come to a determination of the action before it. Whereas the Appellants had the luxury of only 2 weeks if not, it would be permanently locked out of the electoral exercise in respect of the gubernatorial election of Edo State. Even without the benefit of statutory law discouraging the Courts incursion of stopping the electoral process at any point, that order does not accord with the dictates of democracy. Every Judge must by the calling of a judge be a democrat in thinking and adjudication. Being a democrat includes in every situation watching out for the interest of the electorate and giving all parties opportunity to be heard. At every opportunity, democratic values and natural justice values must be entrenched by the judiciary. By the circumstances in which the order was given the Appellant was not given an opportunity to make a contribution to a decision that may adversely affect it. It is in my humble view an improper exercise of judicial discretion and contrary to the entrenched provisions of fair hearing provided in Section 36 of the 1999 Constitution.
I am of the view that the order of the learned trial Judge that goes to the root of the substantive matter before it without hearing the parties particularly the issue of the injunctive orders is an injudicious exercise of the discretion of the Court.
ORDER OF INJUNCTION – CONSEQUENCE OF GRANTING AN INJUNCTIVE ORDER WITHOUT GIVING PARTIES AN OPPORTUNITY TO BE HEARD AND WITHOUT CONSIDERING THE PROCESSES BEFORE THE COURT THEREOF
“By the time the trial Court was making the order, there is no record as I said earlier that any of the parties indicated that there was imminent danger of anything being done between 8th of June and 11th of June which was the next date of adjournment to warrant the sweeping interlocutory order. If the Court wanted to protect the res it could have heard and determined the parties on the motion for injunction. The Court would have taken that important decision to make an injunctive order after hearing the case of both parties and considering where the balance of convenience lies. That failure to listen and give an informed decision before granting an order of injunction in the circumstances of this case amounts to denying the Appellant the right to fair hearing before making a decision that may adversely affect its interest. I am of the humble view that the injunctive order given without a consideration of the processes before the Court for or against an order of injunction against the appellant and without hearing parties on the preliminary objection to jurisdiction, was an injudicious exercise of the powers of the trial Court.
INTERLOCUTORY APPEAL – REQUIREMENT OF SEEKING AND OBTAINING THE LEAVE OF COURT IN INTERLOCUTORY APPEALS
“The present appeal from the said decision, is an interlocutory appeal, which is not even recognized in pre-election matters. Being an interlocutory appeal, anchored on the exercise by the Court of its discretionary powers, the appellant ought to have first sought and obtain leave of either the lower Court or this Court, before or after filing its notice of appeal.
JURISDICTION OF COURT – WHETHER A TRIAL COURT HAS POWER TO MAKE A PRELIMINARY FINDING TO ASCERTAIN WHETHER IT HAS JURISDICTION OVER A MATTER BEFORE IT
“The law is settled that a trial Court has the power to make a preliminary finding to ascertain whether it has jurisdiction over a matter before it – per Chukwuma-Eneh, JSC in Barrister Ismaeel Ahmed v. Alhaji Nasiru Ahmed & Ors. (2013) 15 NWLR (Pt. 1377) 274 at 328. See also N.D.I.C. v. C.B.N. (2002) 7 NWLR (Pt. 766) 272 at 296.
LEAVE OF COURT – CONSEQUENCE OF FAILURE TO OBTAIN LEAVE OF COURT WHERE SAME IS REQUIRED
“The law is settled that where leave is required and it was not obtained, the process filed without leave is incompetent. See Owhotemu-K owo v. State (1 983) 5 SC 17; Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; Faleye v. Otapo (1987) 4 NWLR (Pt. 64) 186; Metal Construction (West Africa) Ltd v. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299; C.B.N. v. Okojie(2002) 8 NWLR (Pt. 768) 187 and Opuiyo v. Omoniwari (2007) 6 SC (Pt. 1) 35 .
ISSUE FOR DETERMINATION – ISSUES FOR DETERMINATION MUST RELATE TO THE GROUND OF APPEAL
“The law is settled that an issue for determination must arise or flow from a ground of appeal. See State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; A.G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 at 108, per Eko, JSC and Obiajulu Nwalatu v. Nigerian Barr Association (2019) 8 NWLR (Pt.1673) 174 at 187, per Akaahs, JSC.
In the case of Jenkins Duve Giane Gwede v. Delta State House of Assembly & Anor. (2019) 8 NWLR (Pt.1673) 30 at 58, per Akaahs, JSC ; the Supreme Court held that:
Issues for determination must relate to the grounds of appeal filed and the grounds of appeal should arise from the judgment appealed against. See Orianzi v. A.G.; Rivers State (2017) 6 NWLR (Pt. 1561) 224; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Bogobiri v. State (2017) 18 NWLR (Pt. 1597) 247.
RELIEF – MEANING AND NATURE OF A RELIEF
“A party is bound by the relief he has claimed. See Okoya v. Santilli (1990) 3 SCNJ 83 at 126 127 and Commissioner for Works, Benue State v. Devcon Construction Co. Ltd. (1988) 3 NWLR (Pt. 83) 407 at 420.
The law is that the language of a relief must be precise, concise and simple. Relief is the life wire of an action per Niki Tobi, JCA (as he then was) in Chief Uzoukwu & Ors. v. Igwe Ezeonu II & Ors. (1991) 6 NWLR (Pt. 200) 708 at 784 785.
The relief sought by the appellant, in my own opinion, is grossly insufficient as it is devoid of any particularity or specificity. It should not be granted. See Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326 at 404 405; per, Salami, PCA”.
RELIEF – WHETHER COURT CAN GRANT A RELIEF NOT CLAIMED BY A PARTY
“The law is settled that a Court cannot grant a party a relief he has not asked for or claimed. See Ekwunife v. Wayne (W.A.) Ltd. (1989) 4 NWLR (Pt. 122) 454;Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652 at 680; Agbanelo v. UBN (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534 at 559; Chief N.T. Okoko v. Mark Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 434 and Standard (Nigerian) Engineering Co. Ltd. v. Nigerian Bank for Commerce & Industry (2006) 43 WRN 47 at 70 72.
To put it differently, the Court has a duty to limit itself to the relief before it. See Ekpenyong v. Nyong (1975) 2 SC 71 at 80 82; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 271 and Nnanyelugo C. Odukwe v. Mrs. Ethel N. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 358; 360.
RULING – MEANING OF RULING
“Ruling, generally, is a decision, adjudication of some matter in dispute. More specifically, a ruling is a decision by judge.that applies a rule or law in a given situation. Bouvier Law Dictionary (compact Edition) page 988”.
COURT – WHETHER COURT CAN UNILATERALLY ALTER A MATTER BEFORE IT
“I wish to remind us that a principle of longer standing is that the Court cannot unilaterally alter the matter or relief before it. See Montague v. Lord Bath (1693) 3 Ca. in Ch. 67, per Powel, B; where it was held that:
A Court of equity may do great things, but cannot alter things, or make them to operate contrary to their essential natures and properties.
COURT – DUTY OF COURT TO DECIDE CASES BEFORE IT ON FACTS CONTESTED BY PARTIES
The duty of this Court, like any other Court, is to decide the case before it only on the facts, issues and law contested by the parties. The Court should never descend into the arena of the judicial contest and be perceived or seen to be acting on behalf of one party and against another.
COURT – DUTY ON COURTS NOT TO DECIDE CASES ON THE BASIS OF SENTIMENTS
“A Court of law should confine itself to the issues and/or matters presented by the parties before it.
As a gentle reminder, it is trite that the Court should not decide cases, causes or matters on the basis of sentiments, speculation or sympathy. See Overseas Construction Co. Ltd v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552; A.C.B. PLC v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501; Pele Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548; Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
The Supreme Court in the case of Federal Republic of Nigeria v. Senator Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 357, per I.T. Muhammad, JSC (as he then was, now CJN); clearly pointed out as follows:
…a Court of law only decides on facts and the law presented before it and not on sentiments.
In the later case of Olu Ode Okpe v. Fan Milk PLC(2017) 2 NWLR (Pt. 1549) 282 at 310;
His Lordship held that:
…in the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course. See Ezeugo v. Ohanyere (1978) 6 7 SC 171 at 184
See also Mr. Ime Ime Umanah Jnr. v. Nigeria Deposit Insurance Corporation (2016) 14 NWLR (Pt. 1533) 458 at 484; per, Nweze, JSC, and Engr. Peter O. Fapohunda v. Reynolds Construction Co. Nig. Ltd.(2019) 3 NWLR (Pt.1658) 163 at 201, per Augie, JSC”.
PRE-ELECTION MATTER – WHETHER THE TRIAL COURT HAS JURISDICTION TO SUSPEND A PRELIMINARY OBJECTION TOUCHING ON ITS JURISDICTION AND DELIVER ITS RULING AT THE STAGE OF ITS FINAL JUDGMENT
“Therefore, being a pre-election matter, the trial Court is vested with the jurisdiction to postpone or suspend any preliminary objection or any other interlocutory application, issue or motion touching on its jurisdiction and deliver its decision, opinion or ruling at the stage of its final judgment as provided by Section 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus:
Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.
Pending its final judgment, a Court seised of a pre-election matter is clothed with the necessary jurisdiction and inherent powers to make any interim or interlocutory equitable or preservative order in the overall interest of justice.
INHERENT POWERS OF COURT – NATURE OF INHERENT POWERS OF COURT
“Under Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) , the Federal High Court has all inherent powers and sanctions of a Court of law.
In the case of Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors. (No. 2) (2010) 18 NWLR (Pt. 1224) 154 at 221 222, per Rhodes-Vivour, JSC; the Supreme Court stated, inter alia, as follows:
Now, inherent powers are powers, which are not necessarily derivable from the Constitution or Legislation. All superior Courts of record have inherent powers. They are power innate in the Court to ensure that the streams of justice remain pure all the time. For example, to ensure that the judicial process is not scandalised or ridiculed by unnecessary applications filed with some ulterior motive.
PRESERVATIVE ORDER – NATURE OF A PRESERVATIVE ORDER
“A preservative order to ensure that the res, the subject matter of litigation, is not destroyed or irreparably damaged or tampered with, is undoubtedly within the inherent powers of a trial Court to make.
RIGHT TO FAIR HEARING – WHETHER A PARTY WHO INDULGES DELAY TACTICS CAN BE HEARD TO COMPLAIN OF A DENIAL OF THE RIGHT TO FAIR HEARING
“It is now settled law that where a party indulges in delaying tactics, he cannot complain of denial of his right to fair hearing. See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333; Out v. Udonwa (2000) 13 NWLR (Pt. 683) 157 and Ezechukwu v. Onwuka(2006) 2 NWLR (Pt. 963) 151.
EXERCISE OF DISCRETION – ATTITUDE OF APPELLATE COURTS TO EXERCISE OF DISCRETION BY A TRIAL COURT
“The law is quite trite that where the decision of a trial Court is substantially based on the exercise of its discretion, an Appellate Court will not interfere, unless the discretion was not exercised judicially and judiciously; or it was wrongly exercised. See Adeyemo Abiodun v. Federal Republic of Nigeria (2018) 11 NWLR (Pt. 1629) 86; County & City Bricks Dev. Co. Ltd. v. Hon. Minister of Environment & Anor (2019) 5 NWLR (Pt. 1666) 484 and PC. Salisu Mamuda v. The State(2019) 5 NWLR (Pt. 1664) 128 .
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)|Electoral Act (2010) as amended|Federal High Court Civil Procedure Rules 2019|
