The court of Appeal per Saulawa JCA held in Engr Musa Wada vs Abubakar Mohamed Ibrahim in appeal No CA/A/193/2020 in the unreported judgment delivered on the 21th day of April 2020 that the decision of the trial high court nullifying the primary election of PDP and holding that PDP had no candidate in the November 16th 2019 election in Kogi State was uncalled for and outrageous.
The learned Justice of the court of Appeal in his 37 page judgement held at pages 22 to 23 held that:
“with possible deference, the foregoing finding and conclusion reached thereupon by the court below in the vexed judgement are utterly in error. I am of the paramount view, that the finding in question is not in any way supported by the pleading and evidence on record. Thus the said finding cannot by any stretch of imagination be deemed to be cogent or credible. The finding of the court is uncalled for and most outrageous especially in the light of the fact that the Appellant did not file any counter claim against the 1st Respondent’s claim in the case. Thus the 1st Respondent as the plaintiff (claimant) has the onerous burden to prove the declaratory claims thereof on the strength of the case thereof and not merely on the weakness of the Appellant’s (Defendant’s) case.
This is due to the trite fundamental doctrine that declaratory reliefs are not merely granted as a matter of course. A court of law whether trial or appellate ought not to raise any issue suo motu, not raised by the respective parties themselves in the case”. The learned Justice of the Court of of Appeal described what the learned trial judge Hon Justice R O Olorunfemi did in granting reliefs not sought by any of the parties as ‘crooked cord of discretion’. His lord held at pages 35 to 36 of the judgment that: It ought to be reiterated that the wrongful exercise of the discretionary power of the court below has resulted in the flagrant breaching of the fundamental rights to fair hearing of the Appellant cherishingly enshrined in section 36(7) of the 1999 constitution as amended.
It is my considered view that wrongful exercise of discretion could be likened to what the erstwhile House of Lords( now Supreme Court of England) characterized as “crooked cord of discretion” in the case of Pettitt vs Pettitt (1977) HL . To use the language of Coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight metwand of the law.