Charles Soludo V. Mr. Valentine Osigbo & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

G.A. OGUNTADE, J.S.C.

I have given consideration to the facts relied upon in support of the application and the submission on law by counsel. The submission of Mr. Taiwo Abe for the 3rd and 4th respondents that all the grounds of appeal challenging the exercise of discretion must of necessity be of mixed law and fact is untenable. There is no dispute that the 1st, 2nd, 3rd and 4th respondents had been the plaintiffs before the Federal High Court of FCT., Abuja. That court declined jurisdiction. The 3rd and 4th respondents brought an appeal against the judgment of the High Court of FCT. The appeal on jurisdiction is yet to be decided. The court below’s duty guided by the appeal before it is to determine the issue of jurisdiction. A court without jurisdiction cannot make valid orders.

In other words, the High Court could not have made the orders made by the court below as it said it had no jurisdiction to hear the suit. The first mid primary duty of the court below being one to resolve jurisdiction could not extend to, granting reliefs to the 1st to 4th respondents on the supposition that the issue of jurisdiction had been resolved one way or the other, There is no doubt that the court below could properly make preservatory orders which will ensure that the Res in dispute is not destroyed such as to foist on the court a situation of complete helplessness should the appeal succeed. But the court below did more than that, it pre-recognised a right in the 1st to 4th respondents to seek reliefs from court even at a time when jurisdiction was still to be determined. I am triable to agree with Mr. Taiwo Abe that the appellants require the leave of court to raise a ground that the court below granted the injunction it did when the issue of jurisdiction has not been resolved. This in my view is clearly a question of law. Put it in another language, it is whether a court without jurisdiction could make orders on the issues in contest in a dispute without first determining the question of jurisdiction.

The order, made by the court below is not just a preservatory order. It in fact prevents the appellant from taking part in the elections given the schedule by which INEC is to operate. The court below should only have given an order which confines the parties to the state of things as it was before litigation started. That in my view means that the parties should not be prejudiced by the court order or given an advantage over the others.

In the light of the above, I make an order staying the orders made by the court below which restrains the cross-appellant (P.D.P.) and INEC from recognizing, endorsing, accepting or ratifying the selection of the appellant (SOLUDO) as candidate of the cross-appellant in the 6/2/2010 election in Anambra State. The order restraining the appellant (SOLUDO) from parading himself as candidate of tile cross-appellant (PDP) is very much unnecessary and uncalled for in the light of the available facts.

It is directed that INEC accord to the appellant (SOLUDO) and cross-appellant (P.D.P.) all the rights, advantages and privileges available to all the candidates in the February 2010 elections and that they not be prejudiced or disadvantaged in any manner. This is without prejudice to whatever judgment or orders that may be subsequently made on the suit filed by 1st to 4th respondents against the appellant (SOLUDO) and cross-appellant (P.D.P.).

SC.334/2009