JOHNSON & ORS v. ENUGU STATE INEC & ANOR (2022)

JOHNSON & ORS v. ENUGU STATE INEC & ANOR

(2022)LCN/16961CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, August 12, 2022

CA/E/168/2022(R)

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. EZEH CHIDIEBERE JOHNSON 2. ANIOKE ANTHONY ILOABUCHI 3. MBA OBINNA 4. PATRIC ENEOKO 5. ILOABUCHI FELIX ANI 6. NNAMDI NWOBODO 7. ANIAGU CHIGOZIE PAUL 8. ARUM CHIDERA EMMANUEL 9. CHUKWU FRANCIS UMEZULIKE 10. NWONYE CHIJIOKE JOSHUA 11. EDEH OSINACHI JOSHUA 12. AMOS IKECHUKWU 13. CHUKWU ABRAHAM CHIDIADI 14. UCHENNA NNAMANI 15. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

1. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION 2. DR. MIKE E. AJOGWU, S.A.N RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The fact that jurisdiction is fundamental to the hearing of any matter before a Court of law is elementary. In the recent decision of the Supreme Court of Shell Nigeria Exp. & Prod. Co. (Nig) Ltd vs. FIRS (2021) 17 NWLR (pt. 1806) 545 AT 567, it was reiterated that the issue of jurisdiction being radical in nature, and being at the very foundation of adjudication can be raised at any stage of the proceedings, be it at the stage of trial or even on appeal to the highest level. The simple reason thereto being that a trial conducted without jurisdiction amounts to a waste of precious time as the proceedings no matter how well conducted and or decided will be discarded at the end of the day and declared null and void. The determination of Jurisdiction to the hearing of a matter before a Court is so important and can therefore be raised even by the Court suo motu, and a determination made thereon before proceeding with the merit of the case. See Barclays Bank of Nigeria vs. CBN (1976) 6SC 175, Usman Danfodio University vs. Kraus Thompson Organisation (2001) 15NWLR (pt. 736) 305.
The cases of Ralph Uwazuruike & Ors vs. Attorney-General of the Federation (2007) 8 NWLR (pt. 1035) 1 AT 13 per Ogbuagu JSC, and NonyeIwunze S. Federal Republic of Nigeria (2014) 6NWLR (pt. 1404) 500 AT 596, all harp on the fact that:
“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 Court. The failure by any appellant (s) to comply with statutory provision or requirement prescribed by the relevant law or rules under which such appeals may be competent and properly brought before the Court, will certainly deprive the appellate Court jurisdiction to entertain and or adjudicate on the appeal.” PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): The instant appeal arose as a result of the judgment of the Enugu State High Court delivered on the 7th day of June, 2022, coram H.O. Eya J, in suit No. E/127/2022; wherein the claimant’s action was dismissed with costs.

It should be recalled that the appellants as claimants before the lower Court, and by way an originating summons, brought pursuant to Sections 22 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 10(a) of the Enugu State of Nigeria Official Gazette No. 6 of 2021, Vol. 30, published on the 7/11/2021, and the Enugu State of Nigeria Official Gazette No. 1 Vol. 31 published on the 10/1/2022 and Order 3 Rule 8 of the Enugu State High Court (Civil procedure) Rules 2020, filed on the 22 of February 2022, sought for the determination of the following questions:
1. Whether by the express provision of Section 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria Official Gazette No. 6, Vol. 30, published on 17/11/2021 and Enugu State of Nigeria Official Gazette No. 31, Vol. 1 published on 10/1/2022, the 15th Claimant has a Constitutional right to nominate and sponsor the 1st to 14th Claimant as Chairmanship and Councillorship Candidates for Nkanu West Local Government Area, in the Enugu State Local Government Council Election fixed for 23rd February, 2022.
2. Whether the defendant’s rejection/disqualification of the nomination and sponsorship of the 1st to 14th claimants as the Chairmanship and Councillorship Candidates for Nkanu West Local Government Council Election fixed for 23rd February, 2022 is a violation of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria, official Gazette No. 6, Vol. 30, published on 17/11/2021 and Enugu State of Nigeria, Official Gazette No. Vol. 1 published on 10/1/2022.
3. Whether the Defendant’s violation of the provisions of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) entitles the plaintiffs to damages, compensation and/or cost.

And should the questions posed be positively determined, claimant prayed for the following reliefs:
1. A declaration that by the express provisions of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria Official Gazette No. 6 Vol. 30 published on 17/11/2021 and Official gazette No. 1 vol. 1 published on 10/1/2022, the 15th Claimant has a Constitutional right to nominate and sponsor the 1st to 14th Claimants as Chairmanship and Councillorship Candidates for Nkanu West Local Government Area in the Enugu State Local Government Council Election fixed for 23rd day of February, 2022
2. A declaration that the defendants’ rejection/disqualification of the 15th Claimant’s nomination and sponsorship of the 1st to 14th Claimant ad the Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for the 23rd February, 2022 is a violation of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, official gazette No. 6, Vol. 30, published on 17/11/2021 and Enugu State of Nigeria, Official gazette No. 31 Vol. 1 published on 10/1/2022.
3. AN ORDER of Mandatory Injunction compelling the defendants either by themselves, their servants, agents, privies, surrogate, staff, appointees, officers or howsoever called or any person acting on the instructions and directives of the defendants to include the 1st to 14th Claimants as the duly nominated Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for 23/2/2022.
4. AN ORDER of Perpetual Injunction restraining the defendants either by themselves, their servants, agents, privies, surrogates, staff, appointees, officers, adhoc staff or howsoever called or any person acting on instructions or directives of the defendants from rejecting/disqualifying the 1stto 14thClaimants as the 15th Claimant’s duly nominated Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest 2022 Enugu State Local Government Council Election fixed for 23 February, 2022.
5. AN ORDER of Perpetual Injunction restraining the defendants whether by themselves, their servants, agents, privies surrogates’ staff, appointees, officers, adhoc staff or howsoever called or any person acting on the instructions or directives of the defendants from conducting the 2022 Enugu State Local Government Council Election on 23/2/2022 without the 1st to 14th Claimants as the duly nominated Chairmanship and Councillorship Candidates of the 15th Claimant for Nkanu West Local Government Area.
6. The sum of N50,000,000.00 (Fifty Million Naira) only being general damages for the rejection/disqualification of the 1st to 14th Claimants as the 15th Claimant’s duly nominated Chairmanship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for 23/2/2022
7. The sum of N 10,000,000.00 (Ten million Naira) being the cost of this suit.

The originating summons is supported by sundry documents including an affidavit of verification, an affidavit of urgency, a host of exhibits all in support of the originating process, and a written address. The respondents on their part reacted to the originating summons served on them by filling a counter-affidavit to which is attached some documents and a written address. On receipt of the counter-affidavit filed by the respondents, claimants filed a further affidavit and a reply on points of law. Filed simultaneously with the counter-affidavit by the respondents, is a preliminary objection to the hearing of the suit on the 7/4/2022, to which the claimants responded to by filing a counter-affidavit to which is hinged a bundle of documents.

The lower Court attended to the Preliminary objection and the substantive suit simultaneously at the end of which it dismissed the suit for want of competence on the 17/6/2022.

Dissatisfied with the lower Court’s decision claimants appealed the said decision to this Court by filing a Notice of Appeal on the 17th of June, 2022 predicated upon five grounds of appeal. On the 1/7/2022, the appeal having been properly entered to this Court, appellant filed a brief of argument on the 6th of July, 2022. Owing to the exigencies of time, appellant filed on the 27/7/2022, an application under Section 285 (11), (12) of the CFRN 1999 Fourth Schedule, and under the inherent jurisdiction of the Court praying for the following reliefs:
1. AN ORDER of this Honorable Court for extension of time within which the Plaintiffs/Applicants can file and serve their counter-affidavit to the Defendants/Respondents Notice of Preliminary Objection and further affidavit/reply on point of law to the Defendants/Respondents counter-affidavit out of time.
2. AN ORDER deeming the above-mentioned processes as duly and properly filed and served the appropriate fees having been paid.
3. AND for such further or other order(s) as the Honorable Court may deem fit to make in the circumstances.

On the date scheduled for the hearing of the application, this Court upon the examination of the grounds upon which the application is premised and the accompanying prayers, as well as the nature of the appeal before the Court, the invited the parties to address it an whether it had the requisite jurisdiction to entertain the appeal in the first place, and on the 9th of August, 2022 being the date adjourned for parties to address the Court, Mr. Chibuzor, the learned counsel appearing for the appellant/applicant, submitting on whether this Court has jurisdiction to entertain the appeal, alluded to the provisions of Sections 7 (1), 8(3), 197(1), 221, 229, 240, and 241(1)(c) of the Constitution of the FRN 1999 as amended maintaining that the Court has the unfettered jurisdiction to entertain the appeal before it and thereby urged the Court to so hold. Submitting contrariwise, Mr. Idam, the learned counsel for the respondents is of the view that the substance of the matter before the Court borders on the election affairs of the Local Govt Election of Enugu State conducted on the 23rd of February, 2022, contending that Section 241 (1) relied upon by the appellant being a general provision cannot be construed at large, as the section appears to have been hemmed by the provisions of Section 246 of the same Constitution, and the further provisions of Section 285 thereof. He argued that there is no provision in any law that empowers this Court to entertain appeals from Local Government Elections, and relied on the case of Chief Mrs. Olufunke Victoria Egbunwa vs. Ondo State Electoral Commission (2006) 10 NWLR (pt. 1012), cited in the cases of Ubandoma vs. Yahaya & Ors (2020) LPELR – 51089. He finally urged the Court to strike out the appeal for lack of jurisdiction.

The fact that jurisdiction is fundamental to the hearing of any matter before a Court of law is elementary. In the recent decision of the Supreme Court of Shell Nigeria Exp. & Prod. Co. (Nig) Ltd vs. FIRS (2021) 17 NWLR (pt. 1806) 545 AT 567, it was reiterated that the issue of jurisdiction being radical in nature, and being at the very foundation of adjudication can be raised at any stage of the proceedings, be it at the stage of trial or even on appeal to the highest level. The simple reason thereto being that a trial conducted without jurisdiction amounts to a waste of precious time as the proceedings no matter how well conducted and or decided will be discarded at the end of the day and declared null and void. The determination of Jurisdiction to the hearing of a matter before a Court is so important and can therefore be raised even by the Court suo motu, and a determination made thereon before proceeding with the merit of the case. See Barclays Bank of Nigeria vs. CBN (1976) 6SC 175, Usman Danfodio University vs. Kraus Thompson Organisation (2001) 15NWLR (pt. 736) 305.
The cases of Ralph Uwazuruike & Ors vs. Attorney-General of the Federation (2007) 8 NWLR (pt. 1035) 1 AT 13 per Ogbuagu JSC, and NonyeIwunze S. Federal Republic of Nigeria (2014) 6NWLR (pt. 1404) 500 AT 596, all harp on the fact that: “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 Court. The failure by any appellant (s) to comply with statutory provision or requirement prescribed by the relevant law or rules under which such appeals may be competent and properly brought before the Court, will certainly deprive the appellate Court jurisdiction to entertain and or adjudicate on the appeal.”

The appellants by their own showing, pins their grouse to the rejection/disqualification of the 15th Claimant’s nomination and sponsorship of the 1st – 14th Claimants as Chairmanship and Councillorship candidates for the Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Election fixed, and now held on the 23rd of February, 2022, as being a violation of Section 221 and 229 of the CFRN 1999 as amended and Section 10 (a) of the Enugu State of Nigeria official Gazette No. 6 Vol. 30 published on the 17th of November, 2021 as well as the Enugu State of Nigeria, Official Gazette No. 31 Vol. 1 published on the 10/1/2022.

Simply put, the substance of the appellants’ complaint is predicated upon the failure of the respondents to recognize the nomination of the 1st – 14th appellants as Chairmanship and Councillorship candidates by the 15th appellant respecting the election which has since been held. Or in other words still a challenge to the nomination of candidates to the Local Government Election held in Enugu State on the 23rd of February, 2022.

That being the case, to be answered is, whether this Court possesses the vires to entertain the appeal in the circumstance.

The position of this Court on the issue has been well articulated in the recent case of Salisu Ubandoma and 1 Or vs. Safiyanu Yahaya and 2 Ors, in appeal with No. CA/A/260/2020 delivered on the 4th of August, 2020, also cited as Ubandoma vs. Yahaya & Ors (2020) LPELR – 51089 (CA) per Ige JCA. Therein my learned brother meticulously dealt with the contentious issue of whether the Court of appeal can be said to have jurisdiction entertaining appeals from elections emanating from Local Governments in the country, to the conclusion that it doesn’t have such jurisdiction, and accordingly declined jurisdiction to hear the appeal from the Niger State Local Government Election Tribunal.
Let me briefly make reference to the submission of the learned counsel for the appellant on the issue. If I understand him well, it is that by virtue of the intendment of some named sections of the Constitution of the Federal Republic of Nigeria 1999 as amended, most particularly Sections 7(1), 8(3), 197(1)b, 221, 229, 240 and 241(1)(c) thereof, this Court is imbued with the jurisdiction to entertain the appeal, but cleverly avoided the stipulations in Section 246 of the said Constitution. Accordingly, I have carefully read the sections of the Constitution which were referred to, by the learned counsel, and it seems clear to me that while Sections 7(1), 8(3) 197(1)(b), 221 and 229 deals with the creation of Local governments, the creation of a state independent Electoral Commission, the formation of political parties for the purpose of canvassing for votes and the definition of a political party, Sections 240 and 241 of the Constitution deals with the general jurisdiction conferred on the Court of Appeal of the Federation by the Constitution. Even then, Section 246 of the same Constitution with respect to Electoral Matters circumscribed in specific terms the jurisdiction of the Court in matters relating to election matters. At no where in the Sections cited by the learned counsel can it be inferred that this Court is given jurisdiction to entertain and to determine matters arising for elections conducted in respect of Local Government councils. This Court put the issue thus in the case of Ubandoma vs. Yahaya (supra) as follows:
“It is also relevant to put it clearly that Sections 240, 241, 242 and 243 of the said Constitution do not bestow on this Court any jurisdiction on election matters in respect of a Local Government Area of a State. The aforesaid sections are made subject to Section 246 and 285 of the Constitution of the Federal Republic of Nigeria which confer appellate jurisdiction on Court of appeal in respect of elections conducted by the Independent National Electoral Commission of Members of the National Assembly, State Houses of Assemblies of the States in the federation and in respect of a governor of a State.”
Faced with the question whether the law provided that an appeal from the Local Government Election Petition shall lie to the Court of Appeal, the Supreme Court, through the mouth of Ogbuagu JSC, in Chief (MRS) Olufunke Victoria Ehuwa vs. Ondo State Independent Electoral Commission & Ors (2006) 10NWLR (pt. 1012) 544 AT 566, was emphatic in pointing out that:
“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 made such a provision, and if made 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, thus no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provisions. 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, nor the inherent jurisdiction of the Court or common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision.”
This pronouncement was favourably adopted by the other panelist, with Kalgo JSC, hitting the nail squarely on the head and stating that:
“Nowhere in the Electoral Act 2010 as amended any provision made for appeals from the decisions of the State High Courts on election petitions to be heard by the Court of appeal. There was no such provision in the 1999 constitution either, as only the National Assembly confer such powers under Section 246 (2) of the said Constitution. And the provision of Section 241 of the said Constitution would not apply because an election petition is not strictly civil proceedings; it is sui generis …… I am of the opinion that the Court of appeal had no jurisdiction to entertain the appeal from the decisions of the Ondo State High Court in this matter.”
Also emphasizing the point, my Lord Onnoghen JSC, in his own contribution stated that:
“it is settled law that jurisdiction is a creation of statute or that jurisdiction is always donated by the Constitution or statute and is never inferred or implied. Looking closely at the constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of Appeal the jurisdiction to hear appeals from the High Court emanating from decisions of that Court of Appeal from Local Government election tribunals. It is not disputed that election petitions proceedings are not part and parcel of ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose.”
The aggregate of the decision of this Court and the Apex Court is that this Court lacks the vires to entertain any appeal emanating from elections conducted in respect of local Governments, and all the sections relied upon by the learned counsel for the appellant of no application and thereby unhelpful to his cause.

Even if the learned counsel were to hide under the cover of a constitutional interpretation of the questions raised for interpretation, the reliefs sought at the end of the day squarely belies that assumption as same seeks to question the disqualification of the 1st – 14th appellants by the respondents in the election held on the 23rd of February, 2022, and thereby an election matter governed strictly by the Enugu State law.

In any case, the application brought under Section 285 (11) and (12) of the Constitution by the appellants is obviously made in error, being that Section 285 is strictly in respect pre-election matters defined by Section 285(14) of the Constitution and in respect of the Electoral Act 2022 of the Constitution and do not envisage any other law, for instance, the Local Government laws or gazettes governing Local Government elections for that matter.

From all that has been said, it is apparent that this Court lacks the necessary vires to entertain and to determine the appeal filed, the consequence of which is that it is hereby struck out for want of jurisdiction. I make no order as to costs.

PETER OLABISI IGE, J.C.A.: This appeal emanated from the judgment of ENUGU STATE HIGH COURT per HON. JUSTICE H. O. EYA delivered 7th day of June, 2022 in relation to disqualification of the Appellants from participating in the Local Government Election in ENUGU STATE which was held on 23rd February, 2022.

The Appellants transmitted the record of appeal to this Court on 1/7/2022 and filed a Motion dated 25th July, 2022 and filed on 27/7/22 which reads:-
“MOTION ON NOTICE
BROUGHT PURSUANT TO SECTION 285(11), (12) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 FOURTH ALTERATION NO. 21 ACT 2017 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that this Honourable Court will be moved on the…. day of 2022 at the hour of 9 O’clock in the forenoon or soon… thereafter as Counsel may be heard on behalf of the Appellants/Applicants praying this Honourable Court for:-
1. AN ORDER for accelerated hearing of Appeal No. CA/E/168/2022: EZEH CHIDIEBERE JOHNSON & ORS V ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ANOR.
2. AN ORDER for the Chief Registrar of the Enugu High Court to transmit the Original Court file to the Registry of the Honourable Court.
3. AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.
AND FURTHER TAKE NOTICE that the grounds upon which the application is based are:
i. The Appellants/Applicants filed the Notice of Appeal on 17/6/2021.
ii. By Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999, (Fourth Alteration No. 21) Act, 2017, this Honourable Court is constitutionally bound to hear and dispose the appeal within 60 days from the date of filing.
iii. That the Appellants/Applicants have filed and served the Appellants Brief of Argument on the Respondents.
iv. That the Chief Registrar of the High Court of Enugu State has failed, refused and neglected to transmit the Original Case File to the Registry of this Honourable Court to enable the hearing and determination of this appeal.
v. Time is of the essence in pre-election matters. See EZEIGWE V NWAWULU (2010) 4 NWLR PART 183 PAGE 159 AT PAGE 206, the Court held thus: –
“It is apparent on the face of the documents relevant to the determination of the suit that this is a pre-election matter where time is of essence.”

When the appeal was called on 8/8/2022, this Court invited arguments from learned Counsel to the Appellants and the Respondents to address this Court as to whether it has appellate jurisdiction in matters relating to what the learned Counsel to the Appellants said, is a pre-election matter in respect of election of persons into Local Government Councils in Enugu State.

On 9/8/2022, the learned Counsel to the parties addressed the Court on the jurisdiction point.

The learned Counsel to the Appellants relied on Sections 241(1), 8(3), 240, 241, 222, 229 and 197(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and submitted very strongly that this Court has jurisdiction.

Learned Counsel to the Respondents MR. IDAM submitted the contrary to the effect that there is no such express provisions of the Constitution relied upon by the Appellants Counsel and that there is also nothing in Sections 246 and 285 of the said Constitution vesting this Court with jurisdiction to entertain the appeal. I agree with Learned Counsel to Respondent.

I have had the opportunity of reading in advance the leading ruling delivered by my learned brother, BARKA, JCA and I fully agree with the leading ruling that this Court has no jurisdiction to entertain the Appellants’ appeal including the motion filed therein.

I too hereby strike out the appeal for want of jurisdiction on the part of this Court.

DANLAMI ZAMA SENCHI, J.C.A.: I was in conference of the panel of justices that heard this appeal that emanated from the judgment of the High Court of justice of Enugu State in Suit No. E/127/2022 delivered by H. O EYA, J. The lead ruling of my learned brother, HAMMA AKAWU BARKA, JCA just delivered substantially captured all my views expressed during the conference and I entirely indorsed the lead ruling as mine that this application lacks merit as this Court lacks jurisdiction to entertain the action. Accordingly, the appeal is hereby struck out.

I make no order as to costs.