IBRAHIM v. INEC & ORS
(2022)LCN/16824(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Saturday, November 12, 2022
CA/KN/272/2022
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
UMAR IBRAHIM APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. ALL PROGRESSIVES CONGRESS 3. MUKHTAR ISHAQ YAKASAI RESPONDENT(S)
RATIO
WHETHER OR NOT A COURT MUST JEALOUSLY GUARD ITS JURISDICTION TO HEAR AND DETERMINE A CASE TO ITS FINALITY
I am equally surprised that the learned trial High Court Judge, who should normally be eager and expected to guard and protect his jurisdiction, jealously, was rather in a hurry to throw it away or sacrifice it, abandoning his responsibility. See the case of Adeogun & Ors Vs Fashogbon & Ors (2008) LPELR – 131 SC, where it was held:
“…once a person who is aggrieved or injured by the action of another comes to Court to seek redress, the Court must jealously guard its jurisdiction to hear and determine the case to its finality. It cannot surrender and subject its jurisdiction to the dictates and manipulations of the defendant. On the Court’s duty to guard its jurisdiction jealously at all times, the pronouncement of this Court in DR. O.G. Sofekun v. Chief N.O.A. Akinyemi & Ors. (1980) 5-7 SC. I at 18-19; (1980) 5-7 SC. (Reprint) 1, is apposite. The Court, per Aniagolu, JSC said: “It is essential in a Constitutional democracy such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the Executive or its agencies, the power and jurisdiction of the Courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interferance with or usurpation of the authority of the Courts as aforesaid, is to strike at the bulwark which the Constitution gives and guarantees to the citizen, of fairness to him against all arbitrariness and oppression.” Indeed so important is this preservation of, and non-interference with the jurisdiction of the Courts that our present constitution (Decree NO.25 of 1978) has specifically provided (see Section 4(3) that neither the National Assembly nor a House of Assembly shall “enact any law that ousts or purports to ousts the jurisdiction of a Court of law or a judicial tribunal established by law.”
See also Adepoju & Ors Vs Yinka & Ors (2012) LPELR – 7847 SC:
“The principle re-emphasised in these cases is that the Court must at all times jealously guard its jurisdiction to hear a case to its conclusion and determine, on the merits, the rights and obligations of the contending parties by either granting or refusing the reliefs claimed; that it should avoid the temptation of terminating a case at the instance of a defendant on the allegation that by reason of some intervening circumstances during the pendency of the case, the Court no longer has jurisdiction – and this is particularly so where the rights and obligations sought to be enforced are still available.” Per TABAI, JSC. PER MBABA, J.C.A.
WHETHER OR NOT THE TRIAL COURT HAS THE DUTY TO CONSIDER THE MERIT OF A CASE WHEN IT HOLDS THAT THE SUIT IS INCOMPETENT
The question whether or not the lower Court has a duty to consider the merits of a case, when it holds that the suit is incompetent, or it has no jurisdiction, cannot receive a conclusive answer, as it depends on the circumstances of each case. I always consider that, where the case before the lower Court is struck out for absence of valid cause of action or absence of locus standi, it would not be advisable to proceed to take the case on its merits, as there is no case, so to say, to be considered, and as it could amount to belabouring over and considering a non-existing or hypothetical/academic case. It would also lead to absurdity, where the outcome of the consideration of the case on the merits, conflicts with the earlier holding, striking out the suit. See the case of Senate President Vs Nzeribe (2004) 9 NWLR (Pt.878) 251; APP Vs Obaseki (2022) 13 NWLR (Pt.1846) SC; Bello & Anor Vs FMB Ltd & Ors (supra) for a guide. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal on 16th September, 2022 against the judgment of the Federal High Court Kano, in Suit No. FHC/KN/CS/157/2022, delivered on 5th September, 2022 by Hon. Justice M.N. Yunusa, wherein the learned trial Judge struck out the suit, for having been filed in the Kano Division of the Federal High Court (FHC), not in Abuja Division; (that) it was filed in violation of the National Judicial Council (NJC) Policy Direction; thus not initiated by due process, (that) the trial Court lacked jurisdiction to entertain the Suit, and cannot determine or pronounce on the merit of the case.
At the trial Court, Appellant, as Plaintiff, had filed a Pre-election suit, challenging the nomination/selection of the 3rd Respondent as the flagbearer of the 2nd Respondent for the House of Representatives election, representing Kano Municipal Federal Constituency in the forthcoming 2023 general elections. Appellant had obtained form, filled same, was screened and cleared to contest the primary election. He said that on the date fixed from the primary election, he went to participate in the election, but his name was wrongly excluded from the election; that he complained to the 2nd Respondent and requested for a fresh election, in line with the Electoral Act and other extant laws, but was ignored, hence this Suit.
After hearing the parties and perusing the processes filed by them, including the neutral process filed by the 1st Respondent (INEC), the learned trial Court, struck out the suit, for the reasons, stated above.
Appellant’s Notice of Appeal was filed on 15/9/2022, as per the endorsement on Page 683 of the Records of Appeal, which shows the Cashier’s Stamp – PAID, on the process. Appellant transmitted the Records of Appeal to this Court on 24/10/2022, and filed his Brief of Argument on 25/10/2022.
In the Brief of Arguments, Appellant distilled 2 Issues for the determination of the Appeal, as follows:
(1) Whether the trial Court rightly relied on the policy directive of the National Judicial Council in striking out the suit. (Grounds 1 and 2)
(2) Whether the trial Court was correct in failing to determine the substantive suit not being the final Court, notwithstanding its finding that it lack jurisdiction. (Grounds 3 and 4)
The 1st and 2nd Respondents filed no brief, but the 3rd Respondent filed his on 31/10/2022, and distilled two (2) Issues too for the determination of the appeal, as follows:
(1) Whether the trial Court was right when it declined jurisdiction to hear and determine the suit, when the same flagrantly violated the provisions of Paragraph 21(1) of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Grounds 1 and 2)
(2) Whether the trial Court was right when it did not contradict itself by making pronouncement on the suit, that did not exist in the first place. (Grounds 3 and 4)
When the appeal was heard on 4/11/2022, parties adopted their briefs. But the 1st Respondent’s Counsel, Badiya Lawal Ibrahim (Mrs.), said she did not file Brief, because they would accept whatever decision this Court arrived at.
And the Counsel for 2nd Respondent, A.L. Ysusf Esq, said they had filed a motion on 3rd November, 2022 for the striking out of the ground 4 of the appeal, and the Issue 2, distilled for determination; that the same are incompetent. He urged us to consider the said objection (which shall be done anon).
Appellant’s 4th ground of appeal was:
The Court of Appeal is most humbly urge (sic) to exercise its powers under Section 16 of the Court of Appeal Act to assume jurisdiction and determine the merit of the case.
Particulars:
(a) The trial Court had jurisdiction to entertain and determine but wrongly define (sic) same.
(b) The suit was commenced by Originating summon, parties filed their respective defences, and adopted same on the date of hearing.
(c) All necessary materials, documents, evidence and processes were placed before the Court for determination on the merit.
(d) Substantial injustice and hardship will be occasioned if the matter is remitted back to the trial Court for hearing.
(e) There is need for this Hon. Court to expeditiously determine this matter before the expiration of 180 days on 2nd December, 2022.” (See Pages 685 – 686 of the Records of Appeal).
I have already reproduced Issue 2 by the Appellant, wherein Appellant prayed us to determine, whether the trial Court was correct in failing to determine the substantive suit, not being the final Court, notwithstanding its finding that it lacked jurisdiction.
A.L. Yusuf Esq, in the motion, had argued that the ground 4 of the appeal was not valid, as it did not challenge the decision or ratio decidendi of the decision of the lower Court; that it was a plea and not a complaint or challenge against the decision of the lower Court. He also said that Issue 2 distilled from ground 4, was incompetent and should be struck out, together with the arguments thereof, which lumped grounds 3 and 4, together; he said that arguments/submissions on incompetent issue and/or ground of appeal cannot be lumped together with those competent grounds of appeal and Issue for determination, and that where they are lumped together, the arguments and Issues are incompetent. He relied on the case of Ugwu Vs State (2012) LPELR – 20616 (SC), to the effect that, for a ground of appeal to be valid, it must challenge the decision of the lower Court, touching on the ratio decidendi therein. He also relied on Ikpeazu Vs Otti & Ors (2016) LPELR – 40055 (SC); Bar-bus & Co. Nig. Ltd & Anor Vs Okafor-Udeji (2018) LPELR – 45501 (SC), to the effect that a defective ground of appeal cannot be lumped with a valid one in arguing an issue for determination.
Appellant’s Counsel did not rejoin on this legal issue and said that he was not served with the motion by the 2nd Respondent, filled only the previous day.
Be that as it may, I think being an issue of law, this Court can take judicial notice of it and resolve it.
I see ground 4 as a call or complaint seeking to invoke Section 15 of the Court of Appeal Act, 2004, to determine the case at the lower Court, on the merit, the way that Court should have done. The Appellate Court has inherent power to assume the powers of the trial Court and enter judgment, which the trial Court should have made at the lower Court. That power remains, whether or not Appellant has specifically formulated a ground of appeal or issue to that effect. See Order 4 Rules 3 – 4 of the Court of Appeal Rules, 2021, which states:
“(3) The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to cost.
(4) The powers of the Court under the forgoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the lower Court, or by any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court may think just, to ensure as the determination of the merits of the real question in controversy between the parties.”
With such liberal provisions of the law, aimed at attaining justice, I think ground 4 of the appeal and Issue 2 relating to it (and to ground 3) are protected, as they clearly discloses the intent of the Appellant, questioning the failure of the trial Court to determine the merits of the case and asking whether this Court cannot determine the case on the merit, in the circumstances, that the trial Court failed to consider the merit of the case. See the case of Ebee Vs The State(2022) LPELR – 56586 (CA):
“Order 4 Rules 3-4 of the Court of Appeal Rules, 2021, provides as follows: “3. The Court shall have power to draw inferences of fact and to give judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require including any order as to costs. 4. The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the lower Court, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such notice and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.” Order 7 Rule 5 of the same rules provides: “5. Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
The language with which Appellant couched the ground of the appeal appears immaterial, in my view, once the complaint and legal issue is pungent and obvious. See the case of Sacoil 281 Nig. Ltd & Anor Vs Transnational Corp. of Nig. Plc & Ors (2020) LPELR – 49762 CA, on what constitutes effective ground of appeal, where my learned brother Tobi JCA, said:
“I will take a little excursion to the law on what constitutes a valid ground of appeal. In Okafor vs. Abumofuani (2016) LPELR-40299 (SC); (2016) 4 S.C. 1, the Supreme Court per Sanusi, JSC put it in these words:
“There is long unending chain of authorities which establishes that for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.”
Similarly, in Oguebego vs. PDP (2016) NWLR (Pt.1503) 446, the Apex Court held:
“For a ground of appeal to be valid and competent, it must arise from and be traceable to the judgment appealed against, and should constitute a challenge to the ratio of the decision on appeal. When a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, the same becomes incompetent and liable to be.”
See also the case of Set Success Enterprises & Co. Ltd Vs Ibeju-Lekki Local Govt. Council & Anor (2021) LPELR – 56608 SC, where it was held:
“A vague ground of appeal was defined by this Court in C.B.N. v OKOJIE (2002) 8 NWLR (Pt.768) 48 at PG 61 PARA E-F. The Court said thus:- “Vagueness of a ground of appeal may arise where it is couched ‘in a manner which does not provide any explicit standard for its being understood. It may also be considered vague when complaint is not defined in relation to the subject or it is not particularised, or the particulars are irrelevant.” A ground of appeal is said to be vague if it is illusive, ambiguous, broad, debatable, disputable, evasive and inexact. On the other hand, a ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague since it would by this nature of clarity speak loudly of the complaint. See Lagga v Sarhuna (2008) 16 NWLR (pt. 1114) 427 a 471-472.” Per PETER-ODILI, JSC
The ground 4, complained of is not vague as it is clear, concise and explicit about the complaint/intent of the Appellant, that this Court should invoke Section 15 of the Court of Appeal Act and give the judgment which the lower Court should have given, on the merits. See Paragraphs (a) to (e) of the ground 4 of appeal.
The objection raised by 2nd Respondent therefore fails and is dismissed.
Arguing the appeal, Appellant’s Counsel, Abubakar Nuhu Ahmad Esq, who settled the brief, on Issue 1, said the 2nd and 3rd Respondents had filed objection to the competence of the suit, on the ground that it was filed in Kano Division of the Federal High Court, instead of the Abuja Division, allegedly, in contravention of the National Judicial Council (NJC) directives; thus, the suit was not initiated by due process. Counsel said that in acceding to the preliminary objection the trial Court had relied on Section 153(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 and Paragraph 21(1) of the Third Schedule to the Constitution as to whether directive of the NJC applied to the case.
The trial Court said NJC Policy Direction provided inter alia, that it applies:
“Where such suits are within the exclusive jurisdiction of the Federal High Court, they shall only be filed or received in Abuja and assigned by the Chief Judge of the Court.
The preamble to the Policy Direction laid the proper foundation for the application of the Policy Direction it provides:
“These Policy Direction shall apply to all suits filed in any Court in Nigeria wherein the parties including the Independent National Electoral Commission (INEC) any political party or its officers any other person natural or legal suing or sued for a declaration in relation to any action taken or to compel or restrain any action or omission with respect to the affairs of a political party or any election into a public office.” (See Pages 676 – 677 of the Records of Appeal)
Counsel added that the trial Court further said:
“By the combined effects of the above provisions the said Policy Direction surely applies to the instant suit, in the light of the subject matter and party jurisdiction of the Court. On whether or not the Plaintiff has strictly complied with the provisions of the Policy Direction the answer is no.
The instant suit was filed at the Kano Division of the Court contrary to the Provision of the Policy Direction under reference. The position of the law is no doubt, Rules of Court must be obeyed, this is because it must always be borne in mind, that Rules of Court are actually Rules of procedure made for convenient and orderly hearing of cases. They are meant to aid the cause of justice. As earlier pointed out Practice Direction are at par with Rules of Court and they have the force of law… In Okereke Vs Yar’Adua (2008) ALL FWLR (Pt.430) P. 626 at P.654 Para D, the Supreme Court held that:
“It is settled law that where legislation lays down a procedure for doing a thing, there should be no other method of doing it.
The effect of the above principle of law is that the instant suit must be filed in line with the procedure laid down in the NJC Policy Direction of the NJC by first and foremost by filing the suit at the Headquarters of the Federal High Court in Abuja and it is within the discretionary powers of the Hon. Chief Judge to assign the suit to any Judge at the headquarters or return it to the Kano Judicial Division for assignment to any of the Judges of the Division.
Failure of the Plaintiff to file the said suit in line with the said policy Direction is fatal as compliance with the provisions of the said Policy Direction is mandatory and the non-compliance… renders this suit… incompetent…” (Pages 677 – 679)
Counsel submitted that the trial Court’s interpretation of the provisions of Section 153(1) (i) and Paragraph 21(i) of the 3rd Schedule to the 1999 Constitution was, manifestly, wrong for failure to implore the known principles of interpretation. He said that the said provisions are clear and unambiguous and deserve to be given their literal meaning; that where the language used in the constitution or any legislation or statute is clear, explicit and unambiguous, the Court must give effect to it, as words used speak for themselves. He relied on Universal Properties Ltd Vs Pinnacle Comm. Bank (2022) NWLR (Pt.1845) SC 523 at 564.
Counsel said that the intendment of the provisions of Section 153(1) (i) and Paragraph 21(i) of the 3rd Schedule was to confer power on the NJC to deal with “issues of policy and administration” and not to make rules of Court or regulate processes filed before the Court; that it was not the intendment of the lawmakers to confer such powers on the NJC. Thus, that the trial Court was wrong to read into the provisions extraneous issues not contained or covered by the said provision, i.e. that the NJC policy “will also regulate affairs of the Court in the same way the rules of practice and procedure will regulate the affairs of the Court”, as stated by the trial Court on page 675 of the Records.
Counsel said that by Section 254 of the Constitution power is conferred expressly on the Chief Judge of the Federal High Court “to make rules for regulating practice and procedure” in the Court. Thus, the NJC policy cannot be used to declare a process filed in Court incompetent.
In the alternative, Counsel submitted that the said NJC Policy is inchoate; that it is not law and cannot override the mandatory constitutional provisions of Section 254 of the Constitution, which empowers the Chief Judge of the Federal High Court to make rules for the Court. He added that the NJC policy is only advisory, when it says: “Heads of Court shall exercise their rule making and administrative powers to give effect to these Policy Direction.” Thus, the trial Court, unduly, relied on the Policy that has not come to place to regulate the process of Court. Counsel relied on the case of APC Vs ASIEC (2022) 12 NWLR (Pt.1845) 411 SC, to say that, had the trial Court read the NJC Policy Direction in full it would not have used it to strike out Appellant’s suit. He said that “statutory enactments must be read together and construed as a whole, not in isolation or in peacemeal – Yabugbe Vs C.O.P (1992) LPELR – 3505 (SC) 39 – 40; (1992) 4 NWLR (Pt.234) 152…”
Counsel said that it is the responsibility of the various heads of Courts in Nigeria to make Practice Directions for their Courts, and he relied on APC Vs Marafa (citation not supplied). He referred us to Federal High Court (Civil Procedure) Rules, 2019 and to the Federal High Court of Nigeria (Pre-Election) Practice Directions, 2022, issued by the Chief Judge of the Federal High Court, pursuant to Sections 254 and 285 of the 1999 Constitution as amended, as well as, to Sections 29(5) and 84(1) of the Electoral Act, 2022, as instruments that regulate the filing of processes in Court, not the NJC Policy Direction. Counsel added that the fact that said NJC Policy Direction was not incorporated into the Federal High Court (Pre-Election) Practice Direction, 2022, clearly showed that the said NJC Policy Directive was not meant to be enforced!
Counsel further added that, even if the said NJC Policy Direction were to have the force of law (which he did not concede), that the order striking out the suit of Appellant, was punitive and overreaching, as the said NJC Direction (shown on Pages 470 to 473 of the Records of Appeal (Vol.1)) did not suggest such drastic ending/conclusion. He relied on the case of Zoramawa & Ors Vs Danladi (2021) LPELR – 55876 CA, where my Lord Gumel JCA said:
“I believe it is unnecessary to adjudge them as incompetent, because such consequence has not been provided for in any enforcement law or regulation…”
Counsel also relied on the case of Makinde Vs Adekola (2022) 9 NWLR (Pt.1834) SC at 35 – 36, where the Supreme Court, in respect of application of Paragraph 9 of the Supreme Court Election Appeals Practice Direction, said that the effect of filing a brief of argument in contravention of the prescribed form is that same will not be accepted for filing at the registry. But where the registry accepts the process for filing and it is duly filed, the implication is that an alleged contravention becomes a mere irregularity, that has been waived; that once the process is accepted by the registry of the Court and requisite fees paid by the party and duly filed, the consequence of non-compliance with the provisions cannot go to affect the validity and competence of the process.
In the circumstance, Counsel said it was wrong to strike out the suit; he said that the trial Court should have remitted it to the Chief Judge of the Federal High Court for assignment, if it was absolutely necessary to enforce the said NJC Policy Direction. He relied on A.G. Federation Vs Anuebunwa (2022) 14 NWLR (Pt.1850) 265, where it was held by Ogunwumiju JSC:
“Where a Court has substantive jurisdiction… but there is at one-point lack of procedural competence, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same at any time in the proceedings. See Mobil Producing Vs LASEPA (2002) 18 NWLR (Pt.798) 1 at 32; Abubakar Vs Nasamu (2021) 17 NWLR (Pt.1330) 407.”
Counsel also relied on Order 2 Rules 3 and 4 of the Federal High Court Rules, 2019, which provides that a suit filed in a wrong division can be heard and determined there or be transferred to the appropriate division of the Court. He also relied on Omatseye Vs FRN (2017) LPELR – 42719 CA; Maideribe Vs FRN (2013) LPELR – 21861 SC.
Counsel also referred us to Paragraph 4(8) of the Federal High Court of Nigeria (Pre-Election) Practice Direction, 2022, which states:
“All suits wherein the cause of action arose in a Judicial Division and the relief seeks a declaration or to compel or restrain person(s), natural or legal within that Judicial Division shall be received or heard within the Judicial Division.”
Counsel said that that conflicts with the NJC Policy Direction; that, a policy direction of the NJC cannot override the express provisions of the law.
He asserted that the case arose from the jurisdiction of the Kano Division of the Federal High Court and so properly filed within the jurisdiction. He relied on the case of Aliyu Vs FRN (2019) 2 AAQR (Volume 2 Part 1) 76 at 99; Comptroller General of Custom & Ors Vs Abdullahi (2017) LPELR – 42081 (SC).
On Issue 2, whether the Court was correct in failing to determine the substantive suit, not being a final Court, notwithstanding its finding that it lacked jurisdiction, Counsel answered in the negative. He relied on the case of Senate President Vs Nzeribe (2004) 9 NWLR (Pt.878) 251 at 472, to say that, in such a situation, the trial Court should have considered the merit of the claim, to provide material for the appellate Court to work with. He also relied on APP Vs Obaseki (2022) 13 NWLR (Pt.1846) SC 1 at 40 – 41; Bello Vs FMB Ltd & Ors CA/KN/193/2013, delivered on 23/9/2021, by Abiru JCA.
Consequently, Counsel urged us to invoke the Provisions of Section 15 of the Court of Appeal Act, to hear the case and give the judgment which the lower Court should have given on the merits.
Counsel said that as per his case at the lower Court, the Appellant was excluded from the primary election; that the 3rd Respondent successfully impressed it upon the 2nd Respondent to list his name as the candidate for the primary election. (See Paragraph 9 of the Appellant’s Brief).
Counsel said that the Committee that conducted the election had no power or was not authorised to conduct the primary election and could not have properly supported the nomination of the 3rd Respondent.
Alternatively, Counsel said that if the Committee had power to conduct the primary election that Appellant was excluded from the primary election. Counsel asserted that on the date fixed for the primary election, 27/5/22, Appellant and delegates and other party members had gathered at the assigned venue for the election, but the Committee assigned to conduct the election did not show up, but in the evening of the said date 27/5/22, they learnt the Committee conducted the election at somewhere-else other than the venue announced, to Appellant’s exclusion; that surprisingly, the video recording of the election was aired by 3rd Respondent and his supporters, showing one Sani Ahmad Turaki declaring the 3rd Respondent as the winner of the election; that he was excluded from the primary election, despite having been screened, cleared and declared eligible to participate in the primary election. See Paragraphs 8, 9 and 11 of the Affidavit in support of the Originating Summons (Pages 7 to 9 of the Records of Appeal).
Counsel further relied on Exhibit 12, attached to his further affidavit in response to 1st Defendant’s Counter affidavit, wherein he (Appellant) said he applied for the certified true copy of INEC report on the result of the primary election which showed that his name was excluded in the election! See Paragraph 8 of the Further Affidavit. Appellant further deposed in Paragraph 9 of the said Further Affidavit, thus:
9) “I was informed by Audi, the agent of one of the Contestants (Maryam Umar K/Mata) at the APC primary election on 10th August, 2022, at Zaria Road, Kano around 3pm in the course of discussion which I verily believe as follows:
(a) He was present at the primary election from the beginning to the end.
(b) the primary election was conducted by Sani Ahmed Turaki (not the Primary Election Committee constituted by the National Working Committee of the APC) who, from the beginning, announced that there were two (2) contestants for the primary election, namely Mukhtar Ishaq Yakasai and Maryam Umar K/Mata and the election was indeed conducted between these two (2).
(c) The election was not conducted by the duly elected delegates. Later the result was announced to the exclusion of the Plaintiff.” (See Pages 515 – 516 of the Records of Appeal)
Counsel said that beyond doubt, Appellant’s name was clearly excluded from the election. He relied on Section 84(12) of the Electoral Act, to say that Appellant had locus standi to challenge the said primary election. He also relied on Section 84(1) and (2) (4) and (5) of the Act and said that it was unlawful for the 2nd Respondent to exclude him (Appellant) without any justification as stated in Section 84(3) of the Act. He said that once the stage of screening was scaled and nomination form duly submitted, every aspirant who satisfied the Constitutional requirement to contest for office, can ONLY be disqualified on the basis of Section 84(3) of the Act. He added that Appellant should have been given equal opportunity to contest for the primaries. He relied on Ogbuoji Vs Umahi & Anor (2022) LPELR – 5766 CA. He added that the exclusion of Appellant was wrongful, and the conduct of the primary null and void. He also said that Sani Ahmad Turaki was not qualified to announce the result of the election.
Counsel, however, admitted that the 1st Respondent (INEC) produced Exhibit INEC 1 (attached to its Counter affidavit) to show that it received from the 2nd Respondent (APC) the result of the primary election that produced the 3rd Respondent. Thus, showing according to Appellant that the entire primary election was arranged and conducted by APC Kano State Chapter, to the exclusion of Appellant; he said that the National Working Committee of the party had the duty to conduct the primary election. He relied on Emeka Vs PDP (2012) 12 NWLR (Pt.1315) 594; CPC Vs Ombugadu (2013) 18 NWLR (Pt.1385) 66; Lado Vs CPC (2011) 18 NWLR (Pt.1279) 689; Uba Vs Ozigbo (2022) 10 NWLR (Pt.1839) SC 431; Emenike Vs PDP (2012 12 NWLR (Pt.1315) SC 556.
Counsel urged us to resolve the Issues for the Appellant and to allow the appeal, set aside the decision of the lower Court and determine the case at the lower Court on the merits.
The 3rd Respondent, who was the direct beneficiary of the decision of the trial Court, arguing Issue 1, his Counsel, I.G. Waru Esq, said that trial Court was right to strike out the claim of the Appellant for the reasons stated by the trial Court; he said that the complaint bordered on absence of jurisdiction and so the trial Court was right to strike out the suit for failure to comply with the NJC Policy Direction No. 1/2022. He relied on Paragraph 21(i) of the 3rd Schedule to the 1999 Constitution, as amended on the general powers of the NJC (National Judicial Council).
Counsel relied on the case of Obiuweubi Vs CBN (2011) LPELR – 2165 (SC), on the need for a litigant to satisfy the requirements of jurisdiction to institute his case, including whether the case comes before the Court, initiated by due process of law and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction – Madukolu Vs Nkemdilim (1962) 2 SCNLR P. 342.
Counsel concluded that, for having filed that suit at the registry of Kano Division of the Federal High Court (and not at the Headquarters of the Court in Abuja), Appellant had flouted the said NJC Policy Direction and the trial Court was right to strike out the case; he said that the said Policy Direction was mandatory, as it carried the word ‘shall’ in demanding compliance, and that the same was a subsidiary legislation. He relied on the decision of Nimpar JCA in Omatseye Vs FRN (2017) LPELR – 42719 CA, on the effect of subsidiary legislation. He also relied on Rossek & Ors Vs ACB Ltd & Ors (1993) LPELR – 2955 (SC); Nigeria Agip Oil Co. Ltd Vs Nkweke & Anor (2016) LPELR – 26060 SC.
On Issue 2, whether the trial Court was right when it did not contradict itself by making pronouncement on the suit, that it did not exist in the first place, Counsel answered in the affirmative. He said that, after the trial Court had said that the suit was incompetent and struck it out, there was nothing left for the Court to consider, on the merit. He relied on the case of Unity Bank Plc Vs Rana Tahir Furniture Co. Ltd (2013) LPELR – 20738 CA.
On the demand to invoke Section 15 of the Court of Appeal Act, to give judgment to Appellant, Counsel said that the question to be answered in this case was, whether Appellant was really excluded from the primary election and whether he supplied sufficient materials to satisfy that assertion, that he was excluded.
Counsel answered the posers in the negative. Counsel said the Appellant was not at all excluded from the election; that he participated, but scored zero vote; he said that Appellant did not present any evidence to the effect that he was unlawfully excluded from the primary election; that being a declaratory relief the burden to prove was Appellant to discharge and to do so on the strength of his case. He relied on Alao Vs Akano & Ors (2005) LPELR – 409 SC; Ladoja Vs INEC & Ors (2007) LPELR – 1738 SC; Obi Vs INEC & Ors (2007) LPELR – 2166 SC.
Counsel referred us to the Exhibit E, attached to the 3rd Respondents Counter affidavit, which showed the name of the Appellant in the list of the candidates/aspirants duly cleared to contest the primary election; he said that Appellant’s name was No 49 on the list, and that was the document used by the five (5) man Election Committee to conduct the primary election.
Counsel also referred us to Exhibit F attached to the 3rd Respondent’s Counter affidavit, which stated the summary of the result of the primary election, as follows:
(1) MUKHTAR ISHAQ YAKASAI – 63
(2) MARYAM UMAR K/MATA – 2
(3) UMAR IBRAHIM – 0
Counsel said Appellant had also appeared before the Screening Committee and his name was also cleared by the 5 Man Committee. He urged us to hold that Exhibit F carrying the scores at the primary election, enjoyed presumption of regularity. He relied on the case of Abubakar Vs Yar’Adua (2008) 19 NWLR (Pt.1120) 1 at 55.
He urged us to resolve the Issues against Appellant, saying that Appellant was not excluded from the election, but had zero vote at the election.
Counsel also referred us to Paragraph 18 of the Counter affidavit, wherein 3rd Respondent deposed that there was only one 5 Man Election Committee, set up by the National Working Committee of the Party, that conducted the election on 27/5/2022, which declared him (3rd Respondent) winner and that the election was free, fair and credible and done in substantial compliance with the APC Constitution. He relied on Exhibit J in support of 3rd Respondent’s Counter affidavit, in respect of the composition and powers of the Election Committee and stated that the said Sani Ahmad Turaki was appointed as the Returning Officer of the Election Committee, set up by the National Working Committee to conduct the election. Counsel referred us to Paragraphs 9 and 10 of the Affidavit in support of the Originating Summons (Page 8 of the Records) wherein Appellant contested the qualification of the said Sani Ahmad Turaki, to be appointed as Returning Officer for the election. He added that the said Sani Ahmad Turaki only did his work as the Returning Officer for the election as duly appointed for that purpose! Counsel referred us to the Exhibit 10 (a letter) attached to Appellant’s affidavit in support of the Originating Summons, wherein Appellant contradicted himself and prayed that the same 5-Man Election Committee (which he claimed was not one set up to conduct the election) should cancel the result of the conducted primary election, and declare him (Appellant) as the winner.
Counsel urged us to dismiss the appeal.
RESOLUTION OF THE ISSUES
I shall consider this appeal on the two Issues donated by the Appellant:
(1) Was the trial Court right to strike out the suit on the grounds that it did not comply with the NJC Policy Direction requiring the suit to be filed at the Headquarters of the Federal High Court, Abuja?
I find it really strange, and disturbing, that the learned trial Court actually struck out the suit for the simple reason that Appellant violated the National Judicial Council (NJC) Policy Direction by filing the suit at the Kano Division of the Federal High Court, instead of doing so at the Federal High Court Headquarters in Abuja!
The NJC Policy Direction referred to by the Learned trial Court is reproduced on Pages 470 to 473 of the Records of Appeal. I think the relevant part of that Policy Direction to this case, is Paragraph 2(a) (b) thereof, which state:
2(a) “All suits to which these Policy Direction apply shall be filed, received or entertained only at the High Court of the Federal Capital Territory, in so far as the reliefs sought, or potential consequential order(s) or declaration(s) may restrain or compel persons or actions beyond the territorial jurisdiction of any one state.
(b) Where such suit is within the exclusive jurisdiction of the Federal High Court, they shall only be filed or received at Abuja and assigned by the Chief Judge of the Court.”
In the preamble and/or opening Paragraph of the said Policy Direction, it says:
“These Policy Direction shall apply to all suits filed in any Court in Nigeria wherein the parties include the Independent National Electoral Commission (INEC), any Political Party or its officers, any other person, natural or legal, suing or sued for a declaration in relation to any action or omission with respect to the affairs of a political party or any election into a public office.”
The last Paragraph of the Policy Direction says that:
“Heads of Courts shall exercise their rule making and (sic) administrative powers to give effect to these Policy Directions.”
Appellant’s Counsel had argued, strongly, that the NJC Policy Direction was meant to guide the heads of Courts in their administrative functions in the regulation of filings of processes in Court, and that only the said heads of Courts, (in this case the Chief Judge of the Federal High Court) that is empowered by law to come up with Rules of Court and/or practice direction to show the application of such policy direction, pursuant to Sections 254 and 285(8) of the 1999 Constitution as amended, as well as Sections 29(5) and 84(1) of the Electoral Act, 2022. Counsel further argued that the powers of the NJC, under Section 153(1)(i) and Paragraph 21(1) of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, do not clothe the NJC with powers to legislate rules on and procedures to be followed by Courts. Rather, that it can provide policy framework or guide for the respective heads of Courts to adopt and apply.
I tend to agree with that reasoning of learned Appellant’s Counsel, that the NJC Policy Direction was not and cannot be intended to interfere with the powers of the Heads of Courts, including the Chief Judges of States, Chief Judge of the Federal High Court, Chief Judge of the High Court of Federal Capital Territory, Abuja; President of the National Industrial Court, President of the Court of Appeal and the Chief Justice of the Federation, as donated to them by the Constitution, to make rules for regulating the practice and procedures of their Courts, and which Rules are always cited as Rules of Court and/or Practice Directions.
Incidentally, the Chief Judge of the Federal High Court has recently made practice Direction for Pre-election matters, pursuant to his constitutional powers. The provision is known as “Federal High Court of Nigeria (Pre-Election) Practice Direction, 2022.” This is what is expected to govern the filings of Pre-election matters at the Federal High Court.
I have not seen where the said Policy Direction of the NJC is reflected or incorporated into the said Federal High Court (Pre-Election) Practice Direction, 2022, as stipulated by the NJC, Policy Direction, nor in the Federal High Court Rules, 2019. Rather, the provision of Order 2 Rule (1) of the Federal High Court Rules, 2019, provides for the place of commencement of various actions, and in the sub-rule (3) says:
“Any other suits shall be commenced and determined in the judicial division in which the defendant reside or carries on business or in which the cause of action arose.”
I think election matters rightly belong to this sub-rule, as such matters are not mentioned in the sub-rules (1) and (2). And by Order 2 Rule 4:
“A proceeding which has been taken before the plea in objection shall not in any way (sic) affected thereby, but the Judge may order the cause to be transferred to the judicial division to which it is proved to his satisfaction, to belong or, failing such proof, order that it be retained and proceeded with within the Court in which it had been commenced.”
And by Paragraph 4(1) of the Federal High Court of Nigeria (Pre-Election) Practice Direction:
“Every pre-election matter shall be commenced by an originating summons as specified in Forms 3, 4 or 5 of Appendix 6 to the Federal High Court (Civil Procedure) Rules, with such variations as circumstances may require…
8(1) ALL suits wherein the cause of action arose in a Judicial Division and the relief seeks a declaration or to compel or restrain person(s) natural or legal within that Judicial Division, with no consequence outside it, shall be filed received or heard only within that Judicial Division.
Provided that in other suits, in so far as the relief sought, or potential consequential order(s) or declaration(s) extend beyond the Judicial Division, shall be filed or received at Abuja and assigned by the Chief Judge.”
The above provisions of the Federal High Court of Nigeria (Pre-Election) Practice Direction, 2022 and the Federal High Court (Civil Procedure) Rules, 2019 appear to provide clear directions to litigants as to where to file their processes, and none of them seems to contemplate the drastic pronouncement of the learned trial Judge in this case, hacking down the suit of Appellant for non-compliance with the NJC Policy Direction!
There is nothing before this Court to suggest that the said NJC Policy Direction has suddenly acquired legislative powers, other than administrative guide, it was intended, in my opinion, capable of supplanting the express provisions of Paragraph 4(8) of the Federal High Court of Nigeria (Pre-Election) Practice Direction, 2022 and the Order 2 Rules 1(3) and 4 of the Federal High Court (Civil Procedure) Rules, 2019, on where to originate process of Court, that is, where to file process.
I am equally surprised that the learned trial High Court Judge, who should normally be eager and expected to guard and protect his jurisdiction, jealously, was rather in a hurry to throw it away or sacrifice it, abandoning his responsibility. See the case of Adeogun & Ors Vs Fashogbon & Ors (2008) LPELR – 131 SC, where it was held:
“…once a person who is aggrieved or injured by the action of another comes to Court to seek redress, the Court must jealously guard its jurisdiction to hear and determine the case to its finality. It cannot surrender and subject its jurisdiction to the dictates and manipulations of the defendant. On the Court’s duty to guard its jurisdiction jealously at all times, the pronouncement of this Court in DR. O.G. Sofekun v. Chief N.O.A. Akinyemi & Ors. (1980) 5-7 SC. I at 18-19; (1980) 5-7 SC. (Reprint) 1, is apposite. The Court, per Aniagolu, JSC said: “It is essential in a Constitutional democracy such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the Executive or its agencies, the power and jurisdiction of the Courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interferance with or usurpation of the authority of the Courts as aforesaid, is to strike at the bulwark which the Constitution gives and guarantees to the citizen, of fairness to him against all arbitrariness and oppression.” Indeed so important is this preservation of, and non-interference with the jurisdiction of the Courts that our present constitution (Decree NO.25 of 1978) has specifically provided (see Section 4(3) that neither the National Assembly nor a House of Assembly shall “enact any law that ousts or purports to ousts the jurisdiction of a Court of law or a judicial tribunal established by law.”
See also Adepoju & Ors Vs Yinka & Ors (2012) LPELR – 7847 SC:
“The principle re-emphasised in these cases is that the Court must at all times jealously guard its jurisdiction to hear a case to its conclusion and determine, on the merits, the rights and obligations of the contending parties by either granting or refusing the reliefs claimed; that it should avoid the temptation of terminating a case at the instance of a defendant on the allegation that by reason of some intervening circumstances during the pendency of the case, the Court no longer has jurisdiction – and this is particularly so where the rights and obligations sought to be enforced are still available.” Per TABAI, JSC
I hold that the trial Court was wrong to strike out the Appellant’s suit, in the circumstances. I resolve Issue 1 for Appellant.
On Issue 2, seeking us to hear the case on the merit and to enter judgment which the learned trial Court ought to have made in the circumstances, on the merit of the case, I had earlier held, while taking the objection by the 2nd Respondent, that where a case is originated by Originating Summons or Motion, whereof the case is contested by affidavit evidence, and the trial Court failed to consider the suit on the merit, by reason of absence of jurisdiction, or incompetence of the suit, that the Appellate Court can consider the evidence led and come to a decision one way or the other.
But I think that can only be done, if the trial Court would have had jurisdiction in the matter.
The question whether or not the lower Court has a duty to consider the merits of a case, when it holds that the suit is incompetent, or it has no jurisdiction, cannot receive a conclusive answer, as it depends on the circumstances of each case. I always consider that, where the case before the lower Court is struck out for absence of valid cause of action or absence of locus standi, it would not be advisable to proceed to take the case on its merits, as there is no case, so to say, to be considered, and as it could amount to belabouring over and considering a non-existing or hypothetical/academic case. It would also lead to absurdity, where the outcome of the consideration of the case on the merits, conflicts with the earlier holding, striking out the suit. See the case of Senate President Vs Nzeribe (2004) 9 NWLR (Pt.878) 251; APP Vs Obaseki (2022) 13 NWLR (Pt.1846) SC; Bello & Anor Vs FMB Ltd & Ors (supra) for a guide.
Did the Appellant, by the affidavit evidence before the trial Court, establish his claim that he was an aspirant for the primary election, held on 27th May, 2022, to select candidates for the forthcoming 2023 general election, to the Federal House of Representatives under the banner of the 2nd Respondent, but wrongly excluded from the election?
A careful perusal of the affidavit evidence at the lower Court tends to show that Appellant’s averments and depositions were even self-defeating. He had admitted that the Primary Election held on 27/5/2022, after some delay, but that he was excluded; he said that, to his chagrin and bewilderment, on the date fixed for the election, delegates and other party members gathered at the assigned venue for the election, but the committee assigned to conduct the election did not show up; but in the evening of that date, he learnt that the committee conducted the election; he saw the video of the election which showed that the 3rd Respondent won the election; that the Returning Officer of the election, Sani Ahmad Turaki, announced the result and the 3rd Respondent as the winner; he said he was excluded! See Paragraphs 7 to 12 of the Affidavit in support of the Originating Summons.
In his further and better Affidavit, Appellant supplied the name of an eye witness of the conduct of the election, who told him 3rd Respondent won the election; that it was between 2 persons (3rd Respondent and one Maryam Umar K/Mata); Appellant said that he was not there at the venue. Appellant had tried to blackmail the Committee that conducted the election, and the said Sani Ahmad Turaki, who announced the result; he said that the Committee was not the one set up by the National Working Committee of the party and that Sani Ahmad Turaki was not a member of the authentic Committee to conduct the election.
Those pieces of evidence collapsed, when the 3rd Respondent produced evidence that Appellant (who was not at the venue of the election) was, in fact, not excluded; that he rather scored zero vote at the Election; that his name was on the ballot; that the 5 Man Committee that conducted the election was set up by the National Working Committee and the said Sani Ahmad Turaki was the Returning Officer, appointed for the election. See Paragraphs 2 to 15 of the Counter affidavit of the 3rd Respondent.
The 3rd Respondent also produced the Exhibits E (Report of the Screening exercise), and Exhibit F (the Result of the election) which showed the scores, as follows:
3rd Respondent – 63 Votes
Maryam Umar K/Mata – 2 Votes and
Appellant – zero Vote.
Appellant had also supplied evidence that INEC (1st Respondent) observed/witnessed the election – see his Exhibit 12. Appellant also later somersaulted, when he acknowledged the election as being conducted by the authentic Committee. See Exhibit 10 (a letter written by him, seeking to be declared the winner of the same election! Even Sani Ahmad Turaki that Appellant said was not qualified to announce the election, there was evidence that he was appointed as the Returning Officer of the Election.
There was therefore no credible evidence to establish the claims of the Appellant. The burden of proof was on him (Appellant), being a declaratory relief, and he had a duty to succeed on the strength of his own evidence. See the case of APP Vs INEC (2021) LPELR – 53529 (CA); Adamu Vs Nigeria Airforce & Anor. (2022) LPELR – 56587 (SC).
I resolve the 2nd Issue against Appellant, and on the whole, hold that the appeal succeeds, only in part, in respect of the wrongful striking out of Appellant’s suit by the trial Court, on the ground of non-compliance with the NJC Policy Direction.
I have already held that even if the said NJC Policy Direction had transmuted to legislation and enforceable (which I strongly doubt), the mere fact that the process (suit) had been accepted by the Registry of the Court for filing should have made the trial Court to transfer it to the Chief Judge of the Federal High Court for assignment, as stipulated in the Federal High Court Rules and Practice Direction of the Court. See the case of Ogwe & Anor Vs I.G.P. & Ors (2015) LPELR – 24322 SC, where it was held:
“…a document or process is deemed duly filed when it is taken to the Court registry, assessed, by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In C.C.B (Nig) Plc V. AG Anambra State and Anor (1992) 8 NWLR (Pt.201) 528 this Court per Olatawura JSC held at page as follows:- “…The Court will not visit the ‘sins’ of the Court Registry on a litigant or his counsel, unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it in fact does.” (Underlining mine for emphasis). See also Dike V. Okorie (1990) 5 NWLR (Pt.151) 418 and Mohammed V. Musawa (supra) and Ede & Anor V. Mba (2011) 18 NWLR (Pt.1278) 236 at 266.”
Per MUHAMMAD, JSC
But that victory, under Issue 1, cannot accrue any benefit to Appellant, as his case failed, on the merits, and he could not prove it. The appeal is accordingly dismissed for failure to establish Appellant’s claims. The 3rd Respondent therefore remains the choice of 2nd Respondent for the forthcoming 2023 general election to the House of Representatives election, to the Kano Municipal Federal Constituency.
Parties shall bear their respective costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother Hon. Justice ITA G. MBABA, JCA. I am in complete agreement with his reasoning that the National Judicial Council Policy Directive, upon which the lower Court purported to strike out the originating summons of Appellant, cannot by any means sustain the course it took, the said Policy Directive being just what it is a mere Policy Directive and nothing more. Unfortunately, Appellant as plaintiff in the lower Court, for reasons ably set out in the leading judgment, also failed to make out a case on the merits for the grant of his originating summons. In the event, I also enter an order dismissing his appeal.
I abide by all the consequential orders contained in the leading judgment including that as to costs.
USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by My Lord Ita G. Mbaba, JCA. The reasoning and conclusion reached by my learned brother tallied with mine. I adopt all said by him as mine.
Let me also mention that a trial or even intermediate Court does not have the luxury of refusal to make pronouncement on issues brought before it on merit. It is not for these Courts to take a shortcut to justice. The learned trial Judge was in great error for striking out the matter at that point. He should have gone ahead after that ruling to determine the matter on the merit.
In a similar situation, this Court in KATTO V. CBN (1999) LPELR-1677 (SC) considered an issue out of six issues formulated to determine the appeal before it. On further appeal to the Supreme Court, this Court was admonished by the Apex Court in these words;
“It ought to be stressed that an intermediate appellate Court, such as the Court below, is duty bound to consider all the issues that are properly raised before it. It does not matter that its decision on a point will, in its view, be adequate to dispose of the appeal one way or the other. This is because, in the event of the decision on that point being reversed on a further appeal, its decision on the rest of the other points may then be considered by the higher Court for a final determination of the appeal.
Appearances:
ABUBAKAR AHMAD, ESQ. For Appellant(s)
BADIYA LAWAL IBRAHIM, (MRS), with him, FATIMA Z. SHEHU (MRS) – for 1st Respondent
A. L. YUSUF, ESQ. with him, H. ABDULLAHI (MRS) – for 2nd Respondent
I.G. WARU, ESQ. with him, M.U. WARU, ESQ. and R.M. AHMAD (MRS) – for 3rd Respondent For Respondent(s)
