ALKALI v. ALIYU & ORS (2020)

ALKALI v. ALIYU & ORS

(2020)LCN/14554(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 04, 2020

CA/A/CV/261/2020

RATIO

PLEADINGS: JURISDICTION

The appellate jurisdiction conferred on this Court in pre and post elections matters can be found in Sections 246 and 285(7), (11) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The sections provide as follows:-

“246. (1) An appeal to the Court of Appeal shall lie as of right from
a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,
(ii) any person has been validly elected to the office of a Governor or Deputy Governor, or
(iii)the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.
285. -(1) There shall be established for the each State of the Federation and the Federal capital Territory, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly-elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State.
(2) There shall be established in each State of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.
(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”
The System of Local Government by democratically elected Local Government Councils is by Constitutional arrangement fully under the government of every state in the Federation of Nigeria pursuant to Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 as amended which provides:-
“7.(1)The System of Local Government by democratically elected Local Government Councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
(2) The person authorised by law to prescribe the area over which a Local Government Council may exercise authority shall:
(a) define such area as clearly as practicable; and
(b) ensure to the extent to which it may be reasonably justifiable that in defining such area regard is paid to
(i)the common interest of the community in the area;
(ii) traditional association of the community; and
(iii) administrative convenience. (3) it shall be the duty of a Local Government Council within the State to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by a Law enacted by the House of Assembly of the State.
(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a Local Government Council.
(5) The functions to be conferred by Law upon local government council shall include those set out in the Fourth Schedule to this Constitution.
(6) Subject to the provisions of this Constitution
(a) the National Assembly shall make provisions for statutory allocation of public revenue to Local Government Councils in the Federation; and
(b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to Local Government Councils within the State.”
It is therefore the duty of the House of Assembly to enact relevant legislation(s) in respect of elections and Election Petitions concerning the Local Government Councils within the State and for the State only. The legislative powers of a House of Assembly is geographically limited and confined to the geographical area of the State concerned. The State Assembly cannot legislate an appellate jurisdiction for a Federal Court like Court of Appeal. No such legislative competence in a House of Assembly. The Niger State House of Assembly cannot adopt a Federal Legislation on electoral matters and process hook line and sinker without regard for legislative powers committed to it under the aforesaid Constitution.
Section 87(9) of the Electoral Act, 2010 has nothing to do with elections of Chairman and Councilors into Local Government Councils in any of the State of the Federation. The said Section 87(9) of the Electoral Act 2010 as amended provides:-
“87(9) Notwithstanding the provisions of the 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. “
The electoral process referred to in that section are election of persons to FEDERAL, STATE AND AREA COUNCIL ELECTIONS for AREA Councils in the Federal Capital Territory, Abuja. In other words Section 87(9) of the Electoral Act, 2010 has to do with Primary Elections for persons seeking elections into the Office of President, Governor, Senators and Members of House of Representatives and Houses of Assembly in the Federation. It has nothing to do with the appellate jurisdiction of this Court which the Constitution of the Federal Republic of Nigeria 1999 has conferred as aforesaid and by Act of the National Assembly. See:-
1. CHIEF IKEDI OHAKIM & ORS V CHIEF MARTIN AGBASO & ORS (2010) 19 NWLR (PART 1226) 172 AT 216 – 217, 243 A – F per MUHAMMAD, JSC.
2. JOSEPH HEMEN BOKO VS HON. BENJAMIN B. NUNGWA & ORS (2019) 1 NWLR (PART 1654) 395 AT 429 E – H per OKORO, JSC who said:-
“May I emphasize that the issue of jurisdiction is so fundamental and as was observed by the Court below and in several decisions of this Court it is a threshold issue. Where a Court lacks jurisdiction, its proceedings, and indeed the judgment generated therefrom, no matter how well conducted and/or written are a nullity.
It is trite that jurisdiction being a matter of the Court’s competence to adjudicate over a matter is so fundamental and radical such that an issue which touches on the jurisdiction of the Court can be raised at any stage of the proceedings or even on appeal for the first time. In fact, issue of jurisdiction can be raised for the first time at the apex or final Court. It can also be raised by the Court suo motu. See Matari & Ors v. Dangaladima & Anor (1993) 3 NWLR (Pt. 281) 266, (1993) LPELR – 25714 (SC), Abiola & Sons Bottling Co. (Nig.) Ltd. & Anor v. First City Merchant Bank Ltd. & Ors (2013) 10 NWLR (Pt. 1363) 501, (2013) LPELR – 20387 (SC); NURTW & Anor v. RTEAN & Ors (2012) 10 NWLR (Pt. 1307) 170, (2012) LPELR – 7840 (SC), Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 301.
May I state also that the fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or some specific statute.
Therefore, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so. See Adetayo & Ors v. Ademola & Ors (2010) 15 NWLR (Pt. 1215) 169, (2010) LPELR – 155 (SC), Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22.

One thing I am sure of is that there can be no appeal before an appellate Court without a competent Notice of Appeal. This much was held by this Court in Uwazurike & Ors v. A.G Federation (2007) LPELR-3448 (SC); (2007) 8 NWLR (Pt. 1035) I at page 13 paras. F-H paragraphs A-C as follows:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it, is statutory and also guided by the Rules of the Court. The failure by any Appellant or Appellants to comply with the statutory provision or requirement prescribed by the relevant law/ laws or Rules (which are in the nature of a subsidiary legislation and perforce, must be obeyed) under which such appeals may be competent and properly before the Court will certainly deprive the appellate Court jurisdiction to entertain and/or adjudicate on the appeal”.
3.CUSTOMARY COURT OF APPEAL, EDO STATE VS CHIEF (ENGR) E. A. AGUELE & ORS (2018) 3 NWLR (PART 1607) 369 AT 397 B – C per KEKERE-EKUN, JSC who said:-
It is well settled that the jurisdiction of any Court to adjudicate in any cause or matter is conferred by the statute which creates it. The only circumstance in which the Court’s jurisdiction may be expanded or extended is by specific legislation to that effect enacted by the legislature. Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or by inference. See: Okulate v. Awosanya (2000) 1 SC 107, (2000) 2 NWLR (Pt. 646) 530; Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465; Okezie v. Fed. A.G & Anor. (1979) 6 – 9 SC (Reprint) 1; Ukpong v. Comm. for Finance (2006) 19 NWLR (Pt. 1013) 187.” On pages 399 C – H TO 400 A – My Lord AUGIE, JSC said:-
“Suffice it to say that the focal point of this appeal is the issue of jurisdiction, which is the authority a Court has to decide matters or take cognizance of matters presented in a formal way for its decision – Mobil Prod. (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1.
There are different forms of jurisdiction e.g. original jurisdiction is the Court’s power to hear and decide a matter before any other Court can review it, while appellate jurisdiction has some semblance of supervisory jurisdiction – see Sule v. Nigerian Cotton Board (1985) 6 SC 62, (1985) 2 NWLR (Pt. 5) 17 at para. D, wherein this Court, Oputa, JSC, explained as follows –
“A Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it; while a Court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a Court of first instance.”
An appellate jurisdiction is statutory, which means that jurisdiction to hear and determine any appeals exercisable by one Court over another must be statutorily conferred, and that is not so in this case. As my learned brother pointed out, none of the two Sections 272 and 273 of the 1999 Constitution, which lays out the jurisdiction of the High Court, vests the High Court with appellate or supervisory jurisdictions over the decisions of the Customary Court of Appeal. It is well-settled that inherent jurisdiction does not supersede the statutory jurisdiction of a Court – see Gombe v. P. W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402) 402 SC; at p. 422 paras. D-E, wherein Iguh, JSC, explained that –
“The inherent power of a Court of record is entirely supplementary to and dependent on the statutory jurisdiction of the Court in a cause. A Court may have or exercise inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction … It has however, no inherent power or jurisdiction over a cause or matter not within its jurisdiction. An inherent power or inherent jurisdiction is not and has never been known to be distinct or separate jurisdiction. No inherent power can add to the jurisdiction of any Court of record where no jurisdiction to entertain a cause had not been vested in the Constitution or Statute law.
Inherent power is only exercisable to enhance statutory jurisdiction in a cause or matter within the jurisdiction of the Court. “
In other words, the jurisdiction of any Court is statutorily bestowed, and since the High Court of Edo State is not mandated by any statute to entertain appeals from or supervise the Appellant in this case, i.e. the Customary Court of Appeal, Edo State, it goes without saying that the Court below erred when it held that the High Court had power to entertain and determine the questions in the originating summons.
The case of OSUN STATE INDEPENDENT ELECTORAL COMMISSION V ACTION CONGRESS (AC) (2010) 19 NWLR (PART 1226) 273 was decided under Electoral Act, 2006 Sections 31 and 121thereof which are not at all relevant to the facts of this case. See CHIEF (MRS) OLUFUNKE VICTORIA EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) 18 NWLR (PART 1012) 544 AT 566 G – H TO 568 A – H per OGBUAGU, JSC who said:-
“The question that I or one may at once ask is, having regard to the clear and unambiguous provision of Section 94(2) of the law which States: “An appeal arising in respect of an election petition under this Law shall lie to the High Court of the State,” can it be honestly and seriously contended or submitted as has been done in the Appellant’s brief, that because the law did not expressly state/provide that the decision of the High Court shall be final, the Ondo State High Court is not the final Court for the determination of Local Government Election appeals? I think not. The next question is, did the law provide that an appeal from the Local Government Election petition, shall lie to the Court of Appeal? Of course not. Commonsensically, could the Ondo State Legislature have mode such a provision? And if it made it, can it ever be valid? The answers are NEVER – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate Court on the decision of an Election Petition Tribunal.
Surely and certainly and this is settled, an appellate jurisdiction, is obviously and clearly created by statute. Therefore, or thus, no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provision. It is well established that the right to appeal does not exist for any person unless it is created by statute or the Constitution. It does not derive from any other source neither inherent jurisdiction nor common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision. So said Uwaifo, JCA, (as he then was) in the case of Chief Esuku & Anor v. Leko & 3 Ors. (1994) 4 NWLR (Pt.340) 625 at 632 C.A. also cited and relied on in the brief of the 1st, 3rd and 4th Respondents and also referred to at page 324 of the records by the Court below.
In the case of Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 at 16, it is stated inter alia, as follows:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective Appellant that such a right has been or is conferred on him by some statutes … ” (the Italics mine)
See also the case of Prince Adigun & 2 Ors. v. The Attorney General of Oyo State & 18 Ors. (1987) 2 NWLR (pt.56) 197; (1987) 3 SCNJ 118. In the case of Ajomale v. Yaduat & Anor. (No. 1) (1991) 5 NWLR (Pt.1991) 257 at 263; (1991) 5 SCNJ 172 at 175, it was held that in this country, the exercise of all original appellate jurisdiction is derived either from the 1979 Constitution or from a particular statute. That these are the only sources from which jurisdiction is derived. It referred to the case of Adili v. The State (1989) 2 NWLR (Pt.103) 305.
In the case of Odofin & Anor v. Chief Agu & Anor (1992) 3 NWLR (Pt.229) 350 at 369; (1992) 3 SCNJ 161 which dealt with the basis of the inherent jurisdiction of an appellate Court, it was held that the exercise of appellate jurisdiction is entirely statutory.
That there can therefore, not be an inherent jurisdiction outside the statute.
All these pronouncements have been made by this Court and put the issue of jurisdiction of an appellate Court, beyond any controversy or doubt. In other words, since the right of appeal is created by the Constitution or Statute, no Court has the right to hear an appeal unless the jurisdiction is derived from the Constitution or Statute. See also the cases of Chief Denis Osadebay v. Attorney- General of Bendel State(1991) 1 NWLR (Pt.169) 525 at 571-572; (1991) 1 SCNJ 162; National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & 3 Ors. (1996) 8 NWLR (Pt.465) 150 at 165; (1996) 9- 10 SCNJ 147; Enugwu v. Okefi & Ors. (2000) 3 NWLR (Pt.650) 620 at 643; and Captain Akande v. Nigerian Army (2001) 8 NWLR (Pt.714) 1 at 19 C.A. just to mention but a few. This is why it is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction.
An appellate Court can only exercise its appellate jurisdiction to correct the errors of the lower Court or the Court below. Thus or consequently, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. See perhaps Akinbobola v. Plisson Fisko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt.167) 270 at 285; (1991) 1 SCNJ 129. On this ground alone, this appeal fails. This is because since the Court below held that the High Court had no jurisdiction to determine the appeal, it could not have on appeal, given any judgment deciding the merits of the appeal as would have been done by the High Court.
For purposes of emphasis, the Ondo State Law is a statute which has not created any appellate jurisdiction for the Court of Appeal in respect of Local Government elections. This is why I have stated that the law did not specifically mention that the Ondo State High Court sitting in its appellate jurisdiction, as a final Court, did not mean and does not mean that the Appellant has a right of appeal to the Court below. In other words, since the law specifically mentioned that an appeal shall lie to the State High Court, I agree with the submission in the brief of the 1st, 3rd and 4th Respondents in the oral submission of their counsel at the hearing of this appeal that it therefore excludes any other appellate Court including the Court of Appeal.”
At pages 570 E -H TO 571 A-F OGBUAGU, JSC also said:-
“It is important and in fact pertinent to stress that there is no Act of the National Assembly which confers jurisdiction on the Court of Appeal to sit as an appellate Court in respect of decisions of the High Court sitting as an Appeal Court in respect of Local Government Election petition matters. I say so because, Section 240 of the 1999 Constitution which provides for the appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court in Nigeria to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High-Court of a State, Sharia Court of Appeal of the Federal Capital Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly”.
Also, Section 246(1) of the 1999 Constitution, deals with appeals to the Court of Appeal as of right from:
“(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether…”
As rightly stated by the Court below, this sub-section (1), did not confer jurisdiction on the Court of Appeal to hear appeals in respect of decisions of the High Court sitting as Election Appeal Court under the Local Government Law. It stated further at page 326 of the records, inter alia, as follows:
“An election petition is not the same as ordinary civil proceedings – see Orubu v. NEC (1988) 12 SCNJ 254; (1988) 5 NWLR (Pt. 94) 323; Awuse v. Odili (supra), besides, the Ondo State Law is a State Law, which cannot validly confer jurisdiction on this court to entertain such appeals. This is in accord with Section 246(2) of the 1999 Constitution, which provides as follows –
“The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.”
I or one may ask, has the National Assembly or the Ondo State Assembly, made any law or provision conferring appellant jurisdiction on the Court of Appeal in respect of Local Government Election Petitions or appeals? Of course, the answer is in the negative and Nwafor Orizu, Esq. knows this as a fact. The right of appeal repeat, is a Constitutional or Legislative matter. If it is not conferred then it is not there.”
I am therefore of the firm view that this Court has no appellate jurisdiction to adjudicate on the Appellant’s appeal. Per PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

MOHAMMED ALKALI APPELANT(S)

And

1. ALHASSAN ALIYU 2. ALL PROSRESSIVES CONSRESS (APC) 3. NISER STATE INDEPENDENT ELECTORAL COMMISSION (NSIEC) RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the High Court of Justice, Niger State of Justice Minna (Coram HON. JUSTICE ZAINAB ALIYU SADAT – J) dismissing the suit of the Appellant of as Plaintiff at the said Court on 18th March, 2020.

The Plaintiff now Appellant had approached the said Court on 23rd day of September, 2019 vide his Writ of Summons issued against the Respondents as Defendants for the following reliefs:-
“1. A declaration that the Plaintiff having won the All Progressives Congress Primary Election from Gazhe 2 Councillorship under Edati Local Government Area of Niger State held on the 10th day of September, 2019 is the person entitled to have his name submitted to the Niger State Independent Electoral Commission by the 2nd Defendant as its candidate for the 2019 Local Government Election for Gazhe 2 Ward of Edati Local Government Area of Niger State in the Local Government Election fixed for 30th November, 2019.
2. A declaration that the Plaintiff having been declared the winner of the All Progressives Congress Primary Election for Gazhe 2 Ward of Edati Local

Government Area of Niger State held on the 10th September, 2019 is the person entitled to have his name published/recognised by the Niger State Independent Electoral Commission for the election into the office of the Councilor, Edati Local Government Legislative Council as 2nd Defendant’s candidate for the Local Government election fixed for 30th November, 2019.
3. A declaration that the 2nd Defendant cannot validly submit the name of any other person (however described) except the name of the Plaintiff to the 3rd Defendant as the candidate for Gazhe 2 Ward of Edati Local Government Area of Niger State in the 30th November, 2019 Local Government election having won its primary election for Gazhe 2 Ward.
4. A declaration that the 3rd Defendant cannot recognize/publish the name of a person who did not win the 2nd Defendant’s Primary Election as the 2nd Defendant’s Candidate for Gazhe 2 Ward of Edati Local Government Area of Niger State in the 30th November, 2019 Local Government election.
5. AN ORDER of Court setting aside the submission of the 1st Defendant’s name to the 3rd Defendant by the 2nd Defendant as its candidate for Gazhe 2 Ward of

Edati Local Government Area in the Local Government election fixed for 30th November, 2019 and thereafter direct the 2nd Defendant to present the name of the Plaintiff to the 3rd Defendant as its duly nominated candidate for Gazhe 2 Ward in the Local Government election fixed for 30th November, 2019. And consequently direct the 3rd Defendant to reflect the Plaintiff’s name in all its requisite Election Processes and Forms.
6. AN ORDER of COURT directing the 3rd Defendant to remove, strike out or delete the name of the 1st defendant from the list of candidates presented to it by the 2nd Defendant and insert or enter the name of the Plaintiff as the duly nominated candidate of the 2nd Defendant for Gazhe 2 Ward of Edati Local Government Area in the Local Government elections fixed for 30th November, 2019 or any other date to be determined bythe 3rd Defendant.
7. AN ORDER of Court directing the 3rd Defendant to reflect the Plaintiff’s name in all his requisite Electoral Processes and Forms as the candidate duly nominated by the 2nd Defendant for Gazhe 2 Ward of Edati Local Government Area of Niger State in the Local Government election and

thereafter, accord him with all the rights attached to his status as the 2nd Defendant’s candidate in the aforesaid election scheduled or 30th November 2019.
8. And for such further or other orders as meets the interest of justice as the Honourable Court may deem fit to make in the circumstances of the suit.”

It was accompanied by Statement of Claim, Witness Statement on Oath and other frontloaded documents.

Pleadings were duly exchanged and the matter proceeded to trial. After the adoption of addresses of learned Counsel to the parties the learned trial Judge gave considered judgment on the 18th March, 2020 and found against the Appellant as follows:-
“In the light of the above, and from the question posed on the issue of locus standi, this Court ordinarily, would have had jurisdiction to entertain the Plaintiff’s suit, but since it would appear that the Plaintiff was not even a registered member nor a party to the primary election he is complaining about, on the authorities earlier analyzed, he lacked the locus standi and cause of action to ignite the jurisdiction of this Court to entertain and determine his case.

In fact, the Plaintiff has not unequivocally shown to this Court that he was an aspirant who was screened and cleared and who participated in the primary conducted by Alh. Mohammed Boba led committee validly appointed by the 2nd Defendant nor has he shown to this Court that the Ibrahim Isah who returned him as winner was validly appointed by the 2nd defendant so as to imbue with the toga of an aggrieved aspirant who can complain about the conduct of such primary election. This I answer in favour of the Defendants.
All the points canvassed so far, touch on the issue of jurisdiction of this Court, but pressing further Douglas Oroja Esq., urged the Court to decline jurisdiction on the premise that upon the consideration of the provision of Section 285(13) 1999 Constitution (as altered by 4th alteration) the jurisdiction of the Court is ousted the section provides:
“Section 285(13) – An election Tribunal or Court shall not declare any person a winner at an election in which a person has not fully participated in all the stages of the election.”
In conclusion, the Court is urged to dismiss the suit.
All said and done, the ratio decidendi as far as jurisdiction

which is raised in this matter is concerned is to confer the plaintiff with the requisite locus standi, he must bring himself within the ambit who contested a primary election conducted by the 2nd defendant which in this case he failed to do.
On the whole, I am of the considered view that the Plaintiff has no locus standi being a non-participant at a party primary election to initiate any proceedings challenging the conduct of such an election and therefore want of jurisdiction of the Court mentioned in Section 87(9) of the Electoral Act, 2010 (as amended).
Having held that the Court has no jurisdiction, proceeding with the other issues raised in this suit becomes irrelevant (otiose), the suit is accordingly dismissed.
Sgd.
Hon. Justice Zainab Aliyu Sadat
Judge
18/3/2020.”

The Appellant was dissatisfied with the decision of the lower Court and has by his NOTICE OF APPEAL dated and filed on the 25th day of March, 2020 appealed to this Court on four grounds which without their particulars are as follows:-
“2 PART OF THE DECISION APPEALED AGAINST
The whole judgment/decision of 18th March, 2020, EXCEPT WHERE THE FINDINGS OF

THE COURT IS IN FAVOUR OF THE APPELLANT.
3. GROUNDS OF APPEAL
GROUND ONE (1)
The Learned Trial Judge erred in law when he held thus:
“However, I am of the view that counsel to the Plaintiff, having been served with the 1st and 2nd Defendant’s final written address, should have responded to issues he feels new in the process and if he so wish ask for an adjournment to enable him reply. This he did not do”.
GROUND TWO
The learned Trial Judge erred in law when he held thus :
“In the instant case, although there is non- compliance on the part of the Defendants (1st and 2nd Defendants) in not filing their final written address within 14 days of close of their case which should have been filed on or before the 31/1/2020 from the 16/1/2020 but was not filed until the 17/2/2020, this non-compliance in my view is mere irregularity which does not affect the real justice of the matter to affect an otherwise just decision and I so hold.
In the circumstance, I hold that the 1st and 2nd Defendants’ final written address filed out of time to be competent.
Also, having found the final written address competent before the Court, the said

final written address even though there was non appearance of counsel to address the Court on the date set for address, it is deemed adopted since it has not been withdrawn.
The indulgence of the Court is hereby granted in favour of the 1st and 2nd Defendants.”
GROUND THREE
The learned Trial Judge erred in law when all through the judgment he referred to Douglas Oroja, Esq. as the person who settled the 1st and 2nd Defendants’ final written address when the record of Court showed otherwise.
GROUND FOUR
The judgment of the trial Court is against the weight of evidence.
4. RELIEFS SOUGHT FROM COURT OF APPEAL
A. AN ORDER of the Court of Appeal allowing the appeal and setting aside the decision of High Court of Justice, Minna, Niger State dated 18th March, 2020 in suit No. NSHC/MN/210/2019 in its entirety.
B. AN ORDER of the Court of Appeal granting the Appellant all the reliefs sought by him at the trial Court.
D. Punitive, exemplary and aggravated damages of Ten Million Naira (N10,000,000.00) only against the 1st and 2nd Defendants for their conduct in this suit.”

The Appellant’s Brief of Argument was dated and

filed the 7th day of April, 2020 while the 1st Respondent’s Brief of Argument dated 6th May, 2020 was filed on 18th May, 2020 and was deemed properly filed and served on 3rd of June, 2020.

The 2nd Respondent’s Brief of Argument was dated 4th May, 2020 and filed on the 18th May, 2020 but was also deemed filed on 3rd June, 2020. The 3rd Respondent filed no Brief of Argument.

The Appellant’s learned Counsel filed Appellant’s Reply Brief to 1st Respondent’s Brief of Argument on 27th May, 2020 dated same date also filed Reply Brief dated 27th May, 2020 to the 2nd Respondent’s Brief of Argument. The appeal was heard on 3rd day of June, 2020 when learned Counsel to the parties adopted their Briefs of Argument.

It is here relevant to recall that at the hearing of this appeal as aforesaid this Court suo motu raised questions relating to whether this Court has appellate jurisdiction to entertain this appeal in view of the fact that the judgment from which the appeal was brought from lower Court has to do with matters relating to election of a Councilor into GAZHE 2 WARD of EDATI LOCAL GOVERNMENT AREA of NIGER STATE which election was conducted by the

Niger State Independent Electoral Commission in the November 30th 2019, Local Government Elections. Just like a trial Court, the appellate jurisdiction of this Court cannot be invoked by an Appellant unless the Constitution of the Federal Republic of Nigeria 1999 as amended or the Act of National Assembly of Nigeria gives right of appeal on a particular issue or subject matter of the appeal.
It follows that all necessary preconditions to the assumption and exercise of jurisdiction must be met and the appeal must come before this Court initiated by due process of law and upon fulfillment of the constitutional and statutory provisions and relevant rules of Court otherwise this Court will be bereft of jurisdiction to entertain the appeal. See:-
1. MR ABDUL GANIYA ADENIRAN & ANOR v. H.R.H OBA A. AJIBOLA IBRAHIM OLUSOKUN II & ORS (2019) 8 NWLR (PT. 1673) 98 AT 119 C – F per PETER-ODILI, JSC who said:-
“The present appeal being bereft of the necessary parties invokes the spirit of the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 thus:
“A Court is competent when:
(a) it is properly constituted as regards numbers and qualifications of

members of the bench, and no member is disqualified for one reason or another;
(b)the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c)the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
See alsoSLB Consortium Ltd v. NNPC 4 SC (Pt.I) 86 at 95-96; (2011) 9 NWLR (Pt. 1252) 317.
It follows that the necessary pre-condition to the assumption and exercise of jurisdiction has not been met and the appeal has not come before this court commenced by due process of law and on the fulfillment of the mandatory provision of the enabling rules of Court, See Ihedioha v. Okorocha (2016) 1 WLR (Pt.1492) 147; Odunze v. Nwosu (2007) 5-6 SC 40 at 58-59; (2007) 13 NWLR (Pt. 1050) 1: Adamu v. State (2017) 1- 2 SC (Pt.1) 79 at 94; (2017) 16 NWLR (Pt. 1592) 353.”
2. NONYE IWUNZE VS FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1404) 500 AT 596 D – E where the apex Court per OLABODE RHODES-VIVOUR, JSC said:-
“The Constitution confers on the Court of

Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of Court. The Court of Appeal would lack jurisdiction to bear an appeal if an Appellant fails to comply with statutory provisions or the relevant rules of the Court. ”
This Court has right and the jurisdiction to raise issues pertaining to jurisdiction or any hazy areas in an appeal suo motu. It is however incumbent on the Court to give opportunity of being heard on issues raised suo motu to the parties in the appeal. See;
1. CHIEF DANIEL A. OLOBA VS ISAAC OLUBODUN AKEREJA (1988) 3 NWLR (PART 84) 508 AT 520 B – E per OBASEKI, JSC who said:-
“The issue or jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim, it is therefore an exhibition of wisdom to have the issue of jurisdiction determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a

fundamental issue. It can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts.”
This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase v Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.”
2. NNPC V ROVEN SHIPPING LTD & ANOR (2019) 9 NWLR (PART 1676) 67 AT 81 B – C per AUGI, JSC who said:-
“Now, suo motu is a Latin term meaning “on its own motion” and it is used in situations where a Court acts on its own initiative. Yes, a Court has jurisdiction to raise an issue suo motu but there is a rider; when a Court raises an issue suo motu, parties must be given opportunity to react to the issue before a decision is taken.
In other words, it is not competent for the Court to raise the issue and decide it without hearing the

parties, as doing so will be in breach of the party’s right to fair hearing. This is why this Court has always said that on no account should a Court raise any point suo motu and no matter how clear that point may appear to be, proceed to resolve it one way or the other without hearing the parties – see Oje v. Babalola (1991 ) 4 NWLR (Pt. 185) 267 at 280 SC.”

The learned Counsel to the parties were given ample opportunity to address this Court as to whether it has appellate jurisdiction to entertain the Appellant’s appeal.

In his response to the point of jurisdiction raised by this Court the learned Counsel to the Appellant PHILIP K. EMMANUEL, ESQ strongly contended that this Court has jurisdiction to entertain and decide on the merit of the appeal relying principally on Sections 272 and 240 of the Constitution of Federal Republic of Nigeria, 1999 as amended. He also relied on the concurrent Legislative List and Sections 87(9) of the Electoral Act, 2020 as amended.

The learned Counsel to the 1st and 2nd Respondents argued that this Court has no jurisdiction in matters relating to elections into a Local Government Council.

PHILIP K. EMMANUEL, ESQ. learned Counsel to the Appellant forwarded what he called Further Authorities that will assist the Honourable Court vide his letter dated 8th June, 2020 addressed to the Deputy Chief Registrar, Abuja Division. He relied on the case of AKIBU V ODUNTAN (1992) 2 NWLR (PT. 222) 210 AT 214 – 215 as pertaining to forwarding of additional authority.

On whether the Electoral Act, 2010 is applicable to Local Government Elections, he had answered in the affirmative, and he relied on Section 20 of the Niger State Electoral Law and Section 87(9) of the Electoral Act, 2010 and paragraphs 11 and 12 of the Concurrent Legislative List Part II of 2nd Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended and the case of OSUN STATE INDEPENDENT ELECTORAL COMMISSION VS ACTION CONGRESS (AC) (2010) 19 NWLR (PT. 1226) 273 AT 327 C – G, 349 B – H, 350 A – H and 351 B – E.

He agreed that Niger State House of Assembly has no power to confer appellate jurisdiction on this Court BUT according to him “since Section 20 of Niger State Electoral Law “incorporated” the provisions of

Section 87(9) of the Electoral Act, 2010 – the jurisprudential principle of covering the field legitimately applies thereby conferring appellate jurisdiction on the Court of Appeal.”

He also relied on Section 241(1)(a) and Section 272(1)(2) of the 1999 Constitution and the case of A.G. ABIA STATE V A.G. FEDERATION (2006) 6 NWLR (PART 763) 264 AT 332 and 391 D – E and OSUN STATE INDEPENDENT ELECTORAL COMMISSION V ACTION CONGRESS supra page 349 A – H and page 350 A – H.

On whether Appellant participated in the primaries he relied on record without pointing to any page and page 4 of Appellant’s Brief of Argument.

On whether the Appellant appealed against specific findings of the lower Court he relied on grounds 1 and 2 of the Notice of Appeal and the case of ODOM V PDP (PART 1451) 527 AT 554 – 555 G – D.

It must be stated at once that the Niger State House of Assembly by the Constitution of the Federal Republic of Nigeria, 1999 as amended is absolutely incapable of conferring appellate jurisdiction on this Court. It is the Constitution of the Federal Republic of Nigeria 1999 as amended that created the Court of Appeal pursuant to Section 6(1), 5(b) of the said

Constitution which provides:-
“6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.”
(5) This section relates to:
(a)the Supreme Court of Nigeria;
(b)the Court of Appeal;”
The same Constitution pursuant to Sections 240, 241 thereof confers jurisdiction in civil and criminal matters on the Court of Appeal.
Thus contrary to the submissions of the learned Counsel to the Appellant which are no doubt a contradiction in term, this Court is not clothe with appellate jurisdiction to entertain appeals from the judgment of a State High Court including Niger State High Court of Justice on matters or issues relating to elections conducted by Niger State Independent Electoral Commission to elect persons into Chairmanship and Councillorship offices of a Local Government Council of Niger State.
The appellate jurisdiction conferred on this Court in pre and post elections matters can be found in Sections 246 and 285(7), (11) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The sections provide as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

Houses of Assembly Election Tribunals which shall to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly-elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State.
(2) There shall be established in each State of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.
(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
(12) An appeal from a decision of a Court in a pre-election matter shall be heard and

disposed of within 60 days from the date of filing of the appeal.”
The System of Local Government by democratically elected Local Government Councils is by Constitutional arrangement fully under the government of every state in the Federation of Nigeria pursuant to Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 as amended which provides:-
“7.(1)The System of Local Government by democratically elected Local Government Councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
(2) The person authorised by law to prescribe the area over which a Local Government Council may exercise authority shall:
(a) define such area as clearly as practicable; and
(b) ensure to the extent to which it may be reasonably justifiable that in defining such area regard is paid to
(i)the common interest of the community in the area;
(ii) traditional association of the community; and
(iii) administrative convenience.

(3) it shall be the duty of a Local Government Council within the State to participate in economic planning and development of the area referred to in subsection (2) of this section and to this end an economic planning board shall be established by a Law enacted by the House of Assembly of the State.
(4) The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a Local Government Council.
(5) The functions to be conferred by Law upon local government council shall include those set out in the Fourth Schedule to this Constitution.
(6) Subject to the provisions of this Constitution
(a) the National Assembly shall make provisions for statutory allocation of public revenue to Local Government Councils in the Federation; and
(b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to Local Government Councils within the State.”
It is therefore the duty of the House of Assembly to enact relevant legislation(s) in

respect of elections and Election Petitions concerning the Local Government Councils within the State and for the State only. The legislative powers of a House of Assembly is geographically limited and confined to the geographical area of the State concerned. The State Assembly cannot legislate an appellate jurisdiction for a Federal Court like Court of Appeal. No such legislative competence in a House of Assembly. The Niger State House of Assembly cannot adopt a Federal Legislation on electoral matters and process hook line and sinker without regard for legislative powers committed to it under the aforesaid Constitution.
Section 87(9) of the Electoral Act, 2010 has nothing to do with elections of Chairman and Councilors into Local Government Councils in any of the State of the Federation. The said Section 87(9) of the Electoral Act 2010 as amended provides:-
“87(9) Notwithstanding the provisions of the 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. ”
The electoral process referred to in that section are election of persons to FEDERAL, STATE AND AREA COUNCIL ELECTIONS for AREA Councils in the Federal Capital Territory, Abuja. In other words Section 87(9) of the Electoral Act, 2010 has to do with Primary Elections for persons seeking elections into the Office of President, Governor, Senators and Members of House of Representatives and Houses of Assembly in the Federation. It has nothing to do with the appellate jurisdiction of this Court which the Constitution of the Federal Republic of Nigeria 1999 has conferred as aforesaid and by Act of the National Assembly. See:-
1. CHIEF IKEDI OHAKIM & ORS V CHIEF MARTIN AGBASO & ORS (2010) 19 NWLR (PART 1226) 172 AT 216 – 217, 243 A – F per MUHAMMAD, JSC.
2. JOSEPH HEMEN BOKO VS HON. BENJAMIN B. NUNGWA & ORS (2019) 1 NWLR (PART 1654) 395 AT 429 E – H per OKORO, JSC who said:-
“May I emphasize that the issue of jurisdiction is so fundamental and as was observed by the Court below and in several decisions of this Court it is a threshold issue. Where a Court

lacks jurisdiction, its proceedings, and indeed the judgment generated therefrom, no matter how well conducted and/or written are a nullity.
It is trite that jurisdiction being a matter of the Court’s competence to adjudicate over a matter is so fundamental and radical such that an issue which touches on the jurisdiction of the Court can be raised at any stage of the proceedings or even on appeal for the first time. In fact, issue of jurisdiction can be raised for the first time at the apex or final Court. It can also be raised by the Court suo motu. See Matari & Ors v. Dangaladima & Anor (1993) 3 NWLR (Pt. 281) 266, (1993) LPELR – 25714 (SC), Abiola & Sons Bottling Co. (Nig.) Ltd. & Anor v. First City Merchant Bank Ltd. & Ors (2013) 10 NWLR (Pt. 1363) 501, (2013) LPELR – 20387 (SC); NURTW & Anor v. RTEAN & Ors (2012) 10 NWLR (Pt. 1307) 170, (2012) LPELR – 7840 (SC), Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 301.
May I state also that the fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their power, authority and

therefore jurisdiction either under the Constitution or some specific statute.
Therefore, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so. See Adetayo & Ors v. Ademola & Ors (2010) 15 NWLR (Pt. 1215) 169, (2010) LPELR – 155 (SC), Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22.
The other aspect of this issue I wish to address relates to the decision of the Court below that even where there is no competent Notice of Appeal before the Court, it can assume jurisdiction simply because issue of jurisdiction is to be raised in the appeal. One thing I am sure of is that there can be no appeal before an appellate Court without a competent Notice of Appeal. This much was held by this Court in Uwazurike & Ors v. A.G Federation (2007) LPELR-3448 (SC); (2007) 8 NWLR (Pt. 1035) I at page 13 paras. F-H paragraphs A-C as follows:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it, is statutory and also guided by the Rules of the Court. The failure by any Appellant or Appellants

to comply with the statutory provision or requirement prescribed by the relevant law/ laws or Rules (which are in the nature of a subsidiary legislation and perforce, must be obeyed) under which such appeals may be competent and properly before the Court will certainly deprive the appellate Court jurisdiction to entertain and/or adjudicate on the appeal”.
3.CUSTOMARY COURT OF APPEAL, EDO STATE VS CHIEF (ENGR) E. A. AGUELE & ORS (2018) 3 NWLR (PART 1607) 369 AT 397 B – C per KEKERE-EKUN, JSC who said:-
It is well settled that the jurisdiction of any Court to adjudicate in any cause or matter is conferred by the statute which creates it. The only circumstance in which the Court’s jurisdiction may be expanded or extended is by specific legislation to that effect enacted by the legislature. Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or by inference. See: Okulate v. Awosanya (2000) 1 SC 107, (2000) 2 NWLR (Pt. 646) 530; Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465; Okezie v. Fed. A.G & Anor. (1979) 6 – 9 SC (Reprint) 1; Ukpong v. Comm. for Finance (2006) 19 NWLR (Pt. 1013) 187.”

On pages 399 C – H TO 400 A – My Lord AUGIE, JSC said:-
“Suffice it to say that the focal point of this appeal is the issue of jurisdiction, which is the authority a Court has to decide matters or take cognizance of matters presented in a formal way for its decision – Mobil Prod. (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1.
There are different forms of jurisdiction e.g. original jurisdiction is the Court’s power to hear and decide a matter before any other Court can review it, while appellate jurisdiction has some semblance of supervisory jurisdiction – see Sule v. Nigerian Cotton Board (1985) 6 SC 62, (1985) 2 NWLR (Pt. 5) 17 at para. D, wherein this Court, Oputa, JSC, explained as follows –
“A Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it; while a Court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a Court of first instance.”
An appellate jurisdiction is statutory, which means that jurisdiction to hear and determine any appeals exercisable by one Court over another must be statutorily

conferred, and that is not so in this case. As my learned brother pointed out, none of the two Sections 272 and 273 of the 1999 Constitution, which lays out the jurisdiction of the High Court, vests the High Court with appellate or supervisory jurisdictions over the decisions of the Customary Court of Appeal. It is well-settled that inherent jurisdiction does not supersede the statutory jurisdiction of a Court – see Gombe v. P. W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402) 402 SC; at p. 422 paras. D-E, wherein Iguh, JSC, explained that –
“The inherent power of a Court of record is entirely supplementary to and dependent on the statutory jurisdiction of the Court in a cause. A Court may have or exercise inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction … It has however, no inherent power or jurisdiction over a cause or matter not within its jurisdiction. An inherent power or inherent jurisdiction is not and has never been known to be distinct or separate jurisdiction. No inherent power can add to the jurisdiction of any Court of record where no jurisdiction to entertain a cause had not been vested in the

Constitution or Statute law.
Inherent power is only exercisable to enhance statutory jurisdiction in a cause or matter within the jurisdiction of the Court. ”
In other words, the jurisdiction of any Court is statutorily bestowed, and since the High Court of Edo State is not mandated by any statute to entertain appeals from or supervise the Appellant in this case, i.e. the Customary Court of Appeal, Edo State, it goes without saying that the Court below erred when it held that the High Court had power to entertain and determine the questions in the originating summons.
The case of OSUN STATE INDEPENDENT ELECTORAL COMMISSION V ACTION CONGRESS (AC) (2010) 19 NWLR (PART 1226) 273 was decided under Electoral Act, 2006 Sections 31 and 121thereof which are not at all relevant to the facts of this case. See CHIEF (MRS) OLUFUNKE VICTORIA EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) 18 NWLR (PART 1012) 544 AT 566 G – H TO 568 A – H per OGBUAGU, JSC who said:-
“The question that I or one may at once ask is, having regard to the clear and unambiguous provision of Section 94(2) of the law which States: “An appeal arising in respect of an

election petition under this Law shall lie to the High Court of the State,” can it be honestly and seriously contended or submitted as has been done in the Appellant’s brief, that because the law did not expressly state/provide that the decision of the High Court shall be final, the Ondo State High Court is not the final Court for the determination of Local Government Election appeals? I think not. The next question is, did the law provide that an appeal from the Local Government Election petition, shall lie to the Court of Appeal? Of course not. Commonsensically, could the Ondo State Legislature have mode such a provision? And if it made it, can it ever be valid? The answers are NEVER – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate Court on the decision of an Election Petition Tribunal.
Surely and certainly and this is settled, an appellate jurisdiction, is obviously and clearly created by statute. Therefore, or thus, no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory

provision.
It is well established that the right to appeal does not exist for any person unless it is created by statute or the Constitution. It does not derive from any other source neither inherent jurisdiction nor common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision. So said Uwaifo, JCA, (as he then was) in the case of Chief Esuku & Anor v. Leko & 3 Ors. (1994) 4 NWLR (Pt.340) 625 at 632 C.A. also cited and relied on in the brief of the 1st, 3rd and 4th Respondents and also referred to at page 324 of the records by the Court below.
In the case of Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 at 16, it is stated inter alia, as follows:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective Appellant that such a right has been or is conferred on him by some statutes … ” (the Italics mine)
See also the case of Prince Adigun & 2 Ors. v. The Attorney General of Oyo State & 18 Ors. (1987) 2 NWLR (pt.56) 197; (1987) 3 SCNJ 118.

In the case of Ajomale v. Yaduat & Anor. (No. 1) (1991) 5 NWLR (Pt.1991) 257 at 263; (1991) 5 SCNJ 172 at 175, it was held that in this country, the exercise of all original appellate jurisdiction is derived either from the 1979 Constitution or from a particular statute. That these are the only sources from which jurisdiction is derived. It referred to the case of Adili v. The State (1989) 2 NWLR (Pt.103) 305.
In the case of Odofin & Anor v. Chief Agu & Anor (1992) 3 NWLR (Pt.229) 350 at 369; (1992) 3 SCNJ 161 which dealt with the basis of the inherent jurisdiction of an appellate Court, it was held that the exercise of appellate jurisdiction is entirely statutory.
That there can therefore, not be an inherent jurisdiction outside the statute.
All these pronouncements have been made by this Court and put the issue of jurisdiction of an appellate Court, beyond any controversy or doubt. In other words, since the right of appeal is created by the Constitution or Statute, no Court has the right to hear an appeal unless the jurisdiction is derived from the Constitution or Statute. See also the cases of Chief Denis Osadebay v. Attorney- General of Bendel State

(1991) 1 NWLR (Pt.169) 525 at 571-572; (1991) 1 SCNJ 162; National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & 3 Ors. (1996) 8 NWLR (Pt.465) 150 at 165; (1996) 9- 10 SCNJ 147; Enugwu v. Okefi & Ors. (2000) 3 NWLR (Pt.650) 620 at 643; and Captain Akande v. Nigerian Army (2001) 8 NWLR (Pt.714) 1 at 19 C.A. just to mention but a few. This is why it is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction.
An appellate Court can only exercise its appellate jurisdiction to correct the errors of the lower Court or the Court below. Thus or consequently, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. See perhaps Akinbobola v. Plisson Fisko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt.167) 270 at 285; (1991) 1 SCNJ 129. On this ground alone, this appeal fails. This is because since the Court below held that the High Court had no jurisdiction to determine the appeal, it could not have on appeal, given any judgment deciding the merits of the appeal as would have

been done by the High Court.
For purposes of emphasis, the Ondo State Law is a statute which has not created any appellate jurisdiction for the Court of Appeal in respect of Local Government elections. This is why I have stated that the law did not specifically mention that the Ondo State High Court sitting in its appellate jurisdiction, as a final Court, did not mean and does not mean that the Appellant has a right of appeal to the Court below. In other words, since the law specifically mentioned that an appeal shall lie to the State High Court, I agree with the submission in the brief of the 1st, 3rd and 4th Respondents in the oral submission of their counsel at the hearing of this appeal that it therefore excludes any other appellate Court including the Court of Appeal.”
At pages 570 E -H TO 571 A-F OGBUAGU, JSC also said:-
“It is important and in fact pertinent to stress that there is no Act of the National Assembly which confers jurisdiction on the Court of Appeal to sit as an appellate Court in respect of decisions of the High Court sitting as an Appeal Court in respect of Local Government Election petition matters. I say so because,

Section 240 of the 1999 Constitution which provides for the appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court in Nigeria to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High-Court of a State, Sharia Court of Appeal of the Federal Capital Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly”.
Also, Section 246(1) of the 1999 Constitution, deals with appeals to the Court of Appeal as of right from:
“(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether…”
As rightly stated by the Court below, this sub-section (1), did not confer jurisdiction on

the Court of Appeal to hear appeals in respect of decisions of the High Court sitting as Election Appeal Court under the Local Government Law. It stated further at page 326 of the records, inter alia, as follows:
“An election petition is not the same as ordinary civil proceedings – see Orubu v. NEC (1988) 12 SCNJ 254; (1988) 5 NWLR (Pt. 94) 323; Awuse v. Odili (supra), besides, the Ondo State Law is a State Law, which cannot validly confer jurisdiction on this court to entertain such appeals. This is in accord with Section 246(2) of the 1999 Constitution, which provides as follows –
“The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.”
I or one may ask, has the National Assembly or the Ondo State Assembly, made any law or provision conferring appellant jurisdiction on the Court of Appeal in respect of Local Government Election Petitions or appeals? Of course, the answer is in the negative and Nwafor Orizu, Esq. knows this as a fact. The right of appeal repeat, is a Constitutional or Legislative matter.

If it is not conferred then it is not there.”
I am therefore of the firm view that this Court has no appellate jurisdiction to adjudicate on the Appellant’s appeal.

Consequently, the Appellant’s appeal initiated vide the APPELLANT’S NOTICE OF APPEAL dated and filed on 25th MARCH, 2020 is HEREBY STRUCK OUT for lack of appellate jurisdiction on the part of this Court.
No Order as to Costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, J.C.A.
I agree with the reasoning, conclusions and orders therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, J.C.A and I agree with resolution of issues formulated for determination in this appeal. I have nothing more to add. I too strike out the appeal for want of jurisdiction.

Appearances:

PHILLIP K. EMMANUEL with H. U. EZE For Appellant(s)

ANIETTE U. J. UDOH, ESQ with SUNNY TABI, ESQ. for 1ST RESPONDENT.
MARVIN OMOROGBE for 2ND RESPONDENT. For Respondent(s)