MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2007)LCN/2385(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of May, 2007
CA/E/94/2007
RATIO
GROUNDS OF APPEAL: WHETHER THE GROUNDS OF APPEAL AGAINST A DECISION MUST RELATE TO THE DECISION AND SHOULD CONSTITUTE A CHALLENGE TO THE RATIO OF THE DECISION
In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 the Supreme Court pronounced that it is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417: Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt. 664) 325 at p. 338″ PER JOHN AFOLABI FABIYI, J.C.A.
JURISDICTION: MEANING OF THE WORD “JURISDICTION”; DEFINITION OF THE WORD ” EXCLUSIVE JURISDICTION”; ESSENCE OF THE JURISDICTION OF THE COURT
Jurisdiction is the power of a court to adjudicate over a matter brought before it. Same is often circumscribed by Statute. Exclusive jurisdiction has been defined as a court’s power to adjudicate an action or a class of actions to the exclusion of all other courts. See Black’s Law Dictionary, 8th Edition at page 869. Let me express it here with vigor that jurisdiction is very vital in the administration of justice. It is the bedrock of all trials. A trial without jurisdiction, however well conducted, is a nullity. Refer to Madukolu v. Nkemdilim (supra), (1962) 2 SCNLR 341. Any final pronouncement by a Court or Tribunal without jurisdiction is an exercise in futility. One should not attempt to put something upon nothing; as it will collapse. See McFoy v. U.A.C. Ltd. (1962) A.C. 152. Whenever issue of jurisdiction arises in a suit, it must first be resolved; and timely too, before the action can be considered on the merit. See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Orhiommwon Local Govt. v. Ogieva (1993) 4 NWLR (Pt. 288) 472 PER JOHN AFOLABI FABIYI, J.C.A..
PROVISION OF SECTION 184 OF THE 1999 CONSTITUTION WITH RESPECT TO THE POWER OF THE NATIONAL ASSEMBLY TO MAKE IN RESPECT OF PERSONS WHO MAY APPLY TO AN ELECTION TRIBUNAL
“184. The National Assembly shall make provisions in respect of: (a) Persons who may apply to an election tribunal for the determination of any question as to whether- i. Any person has been, validly elected to the office of Governor or Deputy Governor; ii. The term of office of a Governor or Deputy Governor has ceased; or iii. The office of Governor or Deputy Governor has become vacant; (b) Circumstances and manner in which, and the conditions upon which such application may be made; and (c) Powers, practice and procedure of the election tribunal in relation to any such application.” PER JOHN AFOLABI FABIYI, J.C.A.
PROVISION OF SECTION 285 OF THE 1999 CONSTITUTION WITH RESPECT TO THE ESTABLISHMENT AND SCOPE OF THE JURISDICTION OF THE NATIONAL ASSEMBLY ELECTION TRIBUNALS
“285-(1) There shall be established for the Federation one or more election tribunals to be known as the National 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; (b) The term of office of any person under tills Constitution has ceased. (c) The seat of a member of the senate or a member of the house of Representative has become vacant; and (d)a question or petition brought before the election tribunal has been properly or improperly brought. (2) There shall be established in each state of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals 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 or as a member of any legislative house. (3) The composition of the National Assembly Election Tribunals, governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution. (4) The quorum of an election tribunal established under this section shall be the Chairman and two other members.” PER JOHN AFOLABI FABIYI, J.C.A.
PROVISION OF SECTION 251(1)(P)(Q) AND (R) OF THE 1999 CONSTITUTION AS TO THE SCOPE OF THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT
Section 251(1) (p), (q) and (r) of the 1999 Constitution provides as follows: “251 – (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – (P) The administration or the management and control of the Federal Government or any of its agencies; (q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; (r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.” PER JOHN AFOLABI FABIYI, J.C.A.
MEANING OF THE LEGAL MAXIM “EXPRESSIO UNIUS EXCLUSIO ALTERIUS “
The law is expressio unius exclusio alterius – the express mention of a thing excludes the others. See Major & Co. Ltd. v. Schroeder (1992) 2 NWLR (Pt. 101) 1″ PER JOHN AFOLABI FABIYI, J.C.A.
MEANING OF THE WORD “WAIVER”
Waiver is the intentional or voluntary relinquishment of a known right. Atlas Life Ins. Co. v. Schrimsher 179 OKL. 643, 66 p. 2d 944, 948. See also Nnonye v. Anyichie (2005) 2 NWLR (Pt. 9) 623 at 647, 666; Ariori v. Elemo (1983) 1 SC 13″ PER JOHN AFOLABI FABIYI, J.C.A.
JUSTICES
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
Between
MR. PETER OBI Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALL NIGERIA PEOPLES PARTY
3. PRINCE NICOLAS UKACHUKWU
4. PEOPLES DEMOCRATIC PARTY
5. DR. ANDY UBA
6. PEOPLES MANDATE PARTY
7. ARTHUR OBIEFUNA NWANDU
8. IFEANYICHUKWU OKONKWO (For himself and on behalf of Nigeria Advance party) Respondent(s)
JOHN AFOLABI FABIYI, J.C.A.(Delivering the Leading Judgement): This is an appeal against the decision of the Federal High Court, Enugu Division as contained in the judgment of Faji, J. delivered on 30th March, 2007. The learned trial judge held that he had no jurisdiction to adjudicate on the Originating Summons filed by the Appellant. After declining jurisdiction, the learned trial judge proceeded to dismiss the application initiated by the Appellant pursuant to section 295(2) of the 1999 Constitution seeking reference of certain questions to the Court of Appeal.
In view of the findings of the learned trial judge on the issue of jurisdiction as stated above, the matter was struck out.
For a proper appraisal of the issues canvassed in this appeal, it is apt to recapitulate, albeit briefly, the facts which are relevant and of moment. Vide the Originating Summons dated and filed on 12th February, 2007 the Appellant prayed the Lower Court for the determination of the following questions:-
“1. Whether having regard to section 180(2) (a) of the 1999 Constitution the tenure of office of a Governor first elected as Governor begins to run when he took the Oath of Allegiance and Oath of Office.
2. Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took Oath of Allegiance and Oath of Office on 17th March, 2006 and has not served his four year tenure as provided under section 180(2)(a) of the 1999 Constitution.”
The appellant prayed the Federal High Court for the following orders, to wit:-
“1. A declaration that the four year tenure of office of the plaintiff as the Governor of Anambra State
began to run from the date he took the Oath of Allegiance and Oath of Office being the 17th day of March, 2006.
2. A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship Election in Anambra State in 2007 in so far as the plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took the Oath of Allegiance and Oath of Office on 17th March, 2006.
3. Injunction restraining the Defendants by themselves, their agents, Servants, assigns and privies or howsoever from in anyway conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Plaintiffs tenure of office will expire.”
The Originating Summons was supported by an affidavit of 15 paragraphs. The appellant contended that following the Governorship election on 19th April, 2003 one Dr. Chris Ngige was wrongfully declared the winner by the 1st Respondent (INEC). The appellant herein felt dissatisfied and filed a petition at the election Petition Tribunal which set aside the declaration made by INEC and held that it was the appellant who secured the majority of lawful votes cast at the election. Dr. Chris Ngige lodged an appeal in this Court. The decision of the Election Tribunal was sustained. The appellant was thereafter sworn in as the Governor of Anambra State by the Chief Judge of the State on 17th March, 2006. The certified true copy of the Oath of Allegiance and Oath of Office sworn to by the appellant at Awka on 17th March, 2006 came in via a further affidavit and marked Exhibit A.
The original sole defendant, now, 1st respondent herein, filed a Memorandum of Conditional Appearance which was accompanied by a Notice of Preliminary Objection and also filed a counter-affidavit to oppose the Originating Summons. The appellant, vide a motion on notice dated 28th February, 2007 prayed the lower court to refer certain questions to the Court of Appeal vide section 295(2) of the 1999 Constitution. During the course of hearing, the 2nd-8th respondents were, upon application, joined as defendants at the lower court.
The learned trial judge was ably addressed by counsel to the appellant and 1st-7th Respondents. The 8th respondent also put in some comments in opposition to the Originating Summons.
The learned trial judge, in his reserved and considered ruling handed out on 30th March 2007, found that he had no jurisdiction to adjudicate on the Originating Summons filed by the appellant. He proceeded to consider the application for reference of certain formulated questions for answers by this Court. He dismissed the application for reference filed pursuant to section 295(2) of the 1999 Constitution. In view of the learned trial judge’s standpoint on issue of jurisdiction, the matter was struck out.
The appellant felt unhappy with the stance of the learned trial judge.
A Notice of Appeal dated 3rd April, 2007 was filed on the same date at the Lower Court’s Registry. A second Notice of Appeal dated 18-4-07 was filed in this Court on the same date on behalf of the appellant. The latter Notice of Appeal relied upon by the appellant carries four (4) grounds of appeal.
He decided to abandon, as of right, his initial Notice of Appeal filed on 3rd April, 2007.
The reliefs sought by the appellant appear legion but it is desirable to set them out as follows:
“(i) To set aside the decision of the learned trial judge to the effect that the Federal High Court had no jurisdiction to entertain the Originating Summons.
(ii) To hold that the Federal High Court had jurisdiction to entertain the Plaintiffs/Appellant’s suit.
(iii) Upon the grant of prayers (i) & (ii) to invoke the powers of the Court of Appeal under section 16 of the Court of Appeal Act and to assume jurisdiction to adjudicate on the originating Summons.
(iv) Upon relief (iii) above being granted to answer the questions for determination in the Originating Summons and to grant appellant’s prayers in the Originating Summons in the following manner –
(v) Declaration that the four year tenure of office of the Appellant as Governor of Anambra State began to run from the date he took his Oath of Allegiance and Oath of Office being 17th day of March, 2006.
(vi) Declaration that the Federal Government through the respondent being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the Appellant as the incumbent Governor has not served his four year term of office commencing from when he took the Oath of Allegiance and Oath of office on 17th March, 2006.
(vii) Injunction restraining the 1st Respondent by themselves, their agent, servants, assigns and privies or howsoever from in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Appellant’s tenure of office will expire.
(viii) As a consequential order, to declare null and void any steps taken, by the Independent National Electoral Commission (NEC) with respect to the conduct of an election in violation of the appellant’s vested rights under section 180(2)(a) of the 1999 Constitution.”
On 9th of May, 2007 when the appeal was slated for hearing, applications to regularize the brief of argument of the 1st respondent as well as the joint brief of argument of the 4th & 5th respondents were moved and granted accordingly. The 8th respondent filed a Notice of Intention to withdraw all his processes filed in the appeal. The court struck out his brief of argument and other processes filed by him in tandem with his desire. The appellant, on 9-5-07, filed three reply briefs in reaction to the briefs of argument filed on behalf of the 1st respondent, 2nd/3rd respondents’ brief of argument as well as 6th/7th respondents’ brief of argument, respectively.
Thereafter, learned senior counsel for the 1st Respondent observed that a Notice of Preliminary Objection was filed on 4th May, 2007. In a rather frontal manner, the preliminary objection relates to the propriety or otherwise of ground 4 of the grounds of appeal and the issue formulated there from which relates to consideration of the originating summons.
The senior counsel strenuously canvassed the preliminary objection and urged the court to strike out ground 4 0f the grounds of appeal and the issue decoded therefrom.
I. Udenze Esq., learned counsel for the 4th and 5th respondents, who also filed a similar preliminary objection early on 9-5-07, aligned himself with the arguments canvassed by the senior counsel for the 1st respondent.
In the same fashion, learned counsel for the 2nd respondent, 3rd respondent and 6th respondents aligned themselves with the 1st respondent.
Dr. O. Ikpeaze SAN referred to the reply brief filed on behalf of the appellant to the 1st respondent’s brief early on 9-5-07. He countered the submissions advanced by Chief A. I. Idigbe SAN, senior counsel for the 1st respondent and urged us to dismiss the preliminary objection.
The court thereafter gave the signal that our view on the preliminary objection will be reflected in our judgment. I shall make my standpoint on the preliminary objection known anon.
The hearing of the appeal proper thereafter commenced. The senior counsel for the appellant adopted all the four briefs filed by the appellant and urged the court to allow the appeal and grant the reliefs sought in the Notice of Appeal filed on 18-4-07.
In turns, each of the five (5) counsel who appeared for the 1st-7th respondents adopted the brief of argument filed by each of them and urged the court to dismiss the appeal. The 1st respondent chickened out of the hearing of the appeal, it seems.
On behalf of the appellant, four issues formulated for determination of the appeal read as follows:
“i. Whether the learned trial judge was correct when, in declining jurisdiction to adjudicate on the appellant’s Originating Summons, he held that the determination of the commencement of the appellant’s tenure of office ought to have been raised as an ancillary matter at the Election Tribunal and in the resultant appeal from the judgment of the said Tribunal.
ii. Whether the learned trial judge was correct when he declined jurisdiction and held that the prayers in the appellant’s Originating summons were matters within the jurisdiction of the Election Tribunal relying on the decision of the Supreme Court in ANPP v. Returning Officer Abia State S.C. 78/2005 delivered on 22nd February, 2007.
iii. Whether the learned trial judge was right in refusing either to refer the questions framed, or to formulate questions for reference to the Court of Appeal.
iv. Whether the appellant who is the Governor of Anambra State shall hold office for four years from the date he took the Oath of Allegiance and Oath of Office having regard to sections 180(2)(a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.”
On behalf of the 1st Respondent, the following three issues were formulated with respect to the preliminary objection challenging the competence of ground 4 of the grounds of appeal and issue 4 distilled therefrom:
“A. Whether the 1st Respondent’s preliminary objection ought not, to be upheld and the ground and issues on consideration of the Originating Summon not canvassed in the court below struck out.
B. Whether this is an appropriate case for exercise of jurisdiction of the Court of Appeal to hear the Originating Summons under the provisions of S.16 of the Court of appeal Act.
C. Whether this Honourable Court is seized with original jurisdiction to grant reliefs (iv) to (viii) of the Notice of Appeal.” Learned senior counsel for the 1st respondent maintained that if the court is inclined to find that all the grounds in the Notice of Appeal are valid, the issues for consideration arising therefrom are as follows:
“a) Whether the learned judge was correct to decline jurisdiction over the subject matter of the Plaintiff/Appellant’s Originating Summons and in particular:
i. Whether the subject matter in the Appellant’s claim did not border on tenure of office for which the 1999 Constitution of the Federal Republic of Nigeria (hereafter the Constitution or CFRN), Cap C23, Laws of the Federation of Nigeria, 2004 has exclusively vested special jurisdiction on a specialized court, to wit Election Tribunal by virtue of sections 285(2) and 184. 11. Whether the lower court was correct in following judicial precedents of the Supreme Court with respect to the ouster of the court’s jurisdiction bordering on electoral and tenure matters provided for in sections 285 and 184 of the 1999 Constitution, having regard to the subject matter disclosed by the Appellant’s Originating Process.
iii. Whether the lower court was right in holding that persons such as the appellant are expected to pursue their case fully and not engage in piecemeal litigation in accordance with Public Policy that litigation must come to an end.
(b) Whether the lower court was right in holding that the matters sought to be referred to the Higher
Court were not proper subjects for reference in view of the recent Supreme Court case of Alhaji Atiku Abubakar v. Attorney General of the Federation (2007) 3 NWLR CPT. 1022) p. 601 and a host of other cases on the issue of constitutional reference.
c) Whether, if and only if, the 1st respondent’s preliminary objection is not upheld, the reliefs sought in the Originating Summons of the appellant ought to be granted having regard to the clear provisions, framework and intendment of the 1999 Constitution.”
The two issues formulated on behalf of the 2nd respondent for an adequate determination of the appeal read as follows:
“1. Whether the Federal High Court, Enugu had jurisdiction to adjudicate on the Appellant’s originating summons.
2. Whether the learned trial court was right in refusing either to refer the questions framed or to formulate questions for reference to the Court of Appeal.”
The issues formulated on behalf of the 3rd respondent as well as those formulated on behalf of the 4th/5th respondents have the same tune as those of the 2nd respondent as reproduced above. I need not set them out. On their own part, the 6th/7th respondents adopted the appellant’s issues for determination as earlier on reproduced in this judgment.
I now desire to consider the preliminary objection raised to ground iv of the grounds of appeal and issue iv distilled therefrom.In support of the preliminary objection, the senior counsel for the 1st respondent referred to Order 3 Rule 2 of the Court of Appeal Rules, 2002.
He observed that appeals are required to be heard by way of rehearing. He submitted that grounds of appeal are premised upon the issues joined and argued by the parties at the lower court and upon which the lower court reached a decision. He maintained that in this case, the court below based its decision on pending preliminary objections in respect of its jurisdiction and arguments over whether the subject matter of the suit was one suitable for reference to this court. He submitted that only the interlocutory applications and not the claim in the appellant’s Originating Summons are for this court to decide and that there is no matter to be reheard before the Court of Appeal with respect to the merit of the Appellant’s case. He referred to Basil v. Fajebe (2001) 4 S.C. (Pt. II) 19.
Learned senior counsel maintained that the appellant cannot raise a fresh point on appeal without the leave of the court below or this court. He cited Lebile v. Reg. Trustees C & S (2003) 2 NWLR (Pt. 804) 399 at 422.
Learned senior counsel further submitted that the appellant having failed to obtain leave of court, he is not entitled to be heard on the new point as such an issue is incompetent. He cited Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 612; Godwin v. CAC (1998) 14 NWLR (Pt. 584) 162 at 174. Senior counsel, on the point, urged that ground iv of the grounds of appeal and issue iv formulated therefrom touching on issues raised by the appellant in the substantive case be struck out. He observed that they were not matters canvassed by the parties in the lower court; nor did that court decide on those issues. He felt that reliefs (iii) to (viii) in the Notice of Appeal are incompetent as they flow from ground iv and issue iv as formulated by the appellant and are essentially the reliefs prayed for by the appellant in his Originating Summons.
In reply, learned senior counsel for the appellant maintained that the provision in Order 3 Rule 2 of the Court of Appeal Rules, 2002, being a rule of court, cannot override the provisions of a statute, namely section 16 of the Court of Appeal Act which applies both in interlocutory applications and in the main claim. He felt that section 16 applies with respect to the merit of the appellant’s case. He cited Adeleke v. O.S.H.A. (2006) NWLR (Pt. 1006) 608 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Ekpa v.Utong (1991) 6 NWLR (Pt. 197) 258 at 275; A.G. Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 572 at 578. Senior counsel submitted that in determining the preliminary objection, the trial court could have looked at the substantive issue in the alternative since it had sufficient materials placed before it.
It is clear that Order 3 Rule 2 of the Court of Appeal Rules, 2002 provides that appeals are required to be heard by way of a rehearing. And rehearing can only be with respect to issues thrashed at the lower court.
The issues considered at the lower court relate principally to the jurisdiction of the trial court and in a slight manner, the propriety or otherwise of referring certain questions to this Court for answers pursuant to section 295(2) of the 1999 Constitution. The lower court did not get to the stage of considering the merit of the appellant’s case. It occurs to me that if the appellant desired to raise a fresh point of law, he should have sought leave from the lower court or this court. That was not done. The case of Lebile v. Registered Trustees C & S (supra) at p. 422 cited by the senior counsel for the respondent is of moment.
At this point, it is pertinent to reproduce ground iv of the grounds of appeal without its particulars. It reads as follows:
GROUND IV – ERROR IN LAW
The learned trial judge who had jurisdiction to entertain the Originating summons erred in law in not determining the merits of the Originating Summons after dismissing the application for reference. ”
I am of the considered view that the appellant, in framing the above reproduced ground, as he did, was wrong. I say so because the learned trial judge found that he had no jurisdiction. The complaint should relate to the fact that the learned trial court declined jurisdiction. The appellant needs to establish that the learned trial judge had jurisdiction to entertain his Originating Summons. It is only then that he can complain that the learned trial judge erred in not determining the merits of his case. In short, it seems to me that the appellant jumped the gun. In Adeleke v. O.S.H.A. (supra), the learned trial judge therein maintained that he had no jurisdiction. The appeal therein was principally targeted at establishing that the trial court had jurisdiction. The Court of Appeal found that the trial court had jurisdiction.
It was urged upon the Court of Appeal that if the lower court was found to have jurisdiction that the Court of Appeal should act under section 16 of the Court of Appeal Act. And the court acted accordingly.
I strongly feel that ground IV of the grounds of appeal reproduced above is incompetent. It touches on a point of law which was not determined at the lower court and no leave was sought to raise same. In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 the Supreme Court pronounced that it is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417: Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt. 664) 325 at p. 338. It starts with a conclusion that the trial court has jurisdiction. Jurisdiction is what the appellant has to establish before this court before raising any other issue. I feel the preliminary objection was made on firm ground. And it is hereby sustained. Ground IV of the grounds of appeal as well as issue iv decoded therefrom are hereby struck out.
The real issue for determination in this appeal is whether the Federal High Court, Enugu had jurisdiction to adjudicate on the appellant’s Originating Summons.
Arguing appellant’s issues 1 and 2, senior counsel submitted that the Originating Summons filed by the appellant did not question any election or a return made at an election as mandated by section 131(1) of the Electoral Act, 2002. He tried to distinguish the decision of the Supreme Court in ANPP v. The Returning Officer Abia State & ors S.C. 78/2005 delivered on 22-02-07. He felt that the decision is clearly not applicable to this case.
Senior counsel submitted that the jurisdiction of the court is determined by reference to the statement of claim of the plaintiff and the endorsement thereon. He cited Adeyemi v. Opeyori (1976) F.N.L.R. 149; Yahaya Adigun & ors v. A.G. Oyo State & ors (1987) 4 SC 272 at 341.He felt that the claim as endorsed on the Originating Summons cannot conceivably be classified as an election matter.
Senior Counsel referred to sections 251 (1)(q) & (r); 178(1) & (2); 285(1) & (2); 184, 6(1)(2)(3)(5) & (6)(b) of the 1999 Constitution. With respect to the cannon of interpretation of statute which erode the rights of individuals, he cited Din v. A.G. Federation (1988) 9 SCNJ 14 at 47; Nwosu v. I.S.E.S.A. (1990) 4 SCNJ 97 at 122; Wilkinson v. Banking Corporation (1948) 1 K.B. 721 at 725.
Senior counsel opined that section 251 (1) cannot be fettered by s. 184 of the 1999 Constitution. He felt that in as much as the prayers of the appellant in the Originating Summons are declaratory and injunctive, they are prayers to which the Federal High Court can take cognizance of pursuant to section 251(1)(v) of the 1999 Constitution.
On behalf of the active respondents, it was contended that jurisdiction is ascertainable from the claim of the appellant only and the subject matter of the action shall determine jurisdiction. It was further submitted that jurisdiction is determined by statute. Senior counsel for the 1st respondent cited F.G.N. v. Oshiomole (2004) 3 NWLR (Pt. 860) 305; Onuorah v. KRPC (2005) 6 NWLR (Pt. 921) 393 at 397; Ishola v. Aiiboye (1994) 6 NWLR (Pt. 352) 506.
Senior counsel submitted that where the subject matter is an electoral matter, the Federal High Court has no jurisdiction. He cited ANPP v. The Returning Officer, Abia State (supra).
Senior counsel referred to sections 184,285 and 251(1) of the 1999 Constitution and urged that it should be noted that in interpreting the Constitution, the Courts have always insisted on a liberal approach; and
more particularly on the rule of interpretation that ‘ut res magit valeat quam pereat’ i.e. a presumption against an absurd interpretation in giving effect to the intention of the lawmaker. He cited Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 231; Osho v. Philips (1972) ANLR 275; COP v. Abasi (1976) ANLR 1 and Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382.
Senior counsel submitted that it is better to settle the issue of jurisdiction before proceeding to hear a case on its merit. He cited Madukolu v. Nkemdilim (1993) 3 NWLR (Pt. 281) 266; SPDC v. Onasanya (1976) 6 SC 89 at 94.
Learned senior counsel maintained that from a combined reading of sections 184 and 285 of the 1999 Constitution, jurisdiction on tenure of office of a Governor falls within the exclusive preserve of Election Tribunal.
I should express it here that the submissions advanced on behalf of other counsel for the respondents flow along with those advanced by the senior counsel for the 1st respondent.
Jurisdiction is the power of a court to adjudicate over a matter brought before it. Same is often circumscribed by Statute. Exclusive jurisdiction has been defined as a court’s power to adjudicate an action or a class of actions to the exclusion of all other courts. See Black’s Law Dictionary, 8th Edition at page 869. Let me express it here with vigor that jurisdiction is very vital in the administration of justice. It is the bedrock of all trials. A trial without jurisdiction, however well conducted, is a nullity. Refer to Madukolu v. Nkemdilim (supra), (1962) 2 SCNLR 341. Any final pronouncement by a Court or Tribunal without jurisdiction is an exercise in futility. One should not attempt to put something upon nothing; as it will collapse. See McFoy v. U.A.C. Ltd. (1962) A.C. 152.Whenever issue of jurisdiction arises in a suit, it must first be resolved; and timely too, before the action can be considered on the merit.See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Orhiommwon Local Govt. v. Ogieva (1993) 4 NWLR (Pt. 288) 472.
At this point, it is apt to set out the provisions of sections 184, 285(1) and (2) and section 251 (1) (p), (q) and (r) of the 1999 Constitution. They are reproduced as follows:
“184. The National Assembly shall make provisions in respect of:
(a) Persons who may apply to an election tribunal for the determination of any question as to whether-
i. Any person has been, validly elected to the office of Governor or Deputy Governor;
ii. The term of office of a Governor or Deputy Governor has ceased; or
iii. The office of Governor or Deputy Governor has become vacant;
(b) Circumstances and manner in which, and the conditions upon which such application may be made; and
(c) Powers, practice and procedure of the election tribunal in relation to any such application.”
“285-(1) There shall be established for the Federation one or more election tribunals to be known as the National 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;
(b) The term of office of any person under tills Constitution has ceased.
(c) The seat of a member of the senate or a member of the house of Representative has become vacant; and
(d)A question or petition brought before the election tribunal has been properly or improperly brought.
(2) There shall be established in each state of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals 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 or as a member of any legislative house.
(3) The composition of the National Assembly Election Tribunals, governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution.
(4) The quorum of an election tribunal established under this section shall be the Chairman and two other members.”
Section 251(1) (p), (q) and (r) of the 1999 Constitution provides as follows:
“251 – (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High
Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(P) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
I need to now consider the cannons of Interpretation in respect of Statutes generally and more especially, the Constitution, which is the ground norm. The Supreme Court, in the case of NBN Ltd. v. Weide & Co. Nig. Ltd. (1996) 8 NWLR (Pt. 465) 150 pronounced that –
“The 1999 Constitution of the Federal Republic of Nigeria is the ground norm. The approach of the
Court to the construction of the Constitution should be one of liberalism. It is not the duty of the court to construe any of the provisions as to defeat the obvious ends the constitution was designed to serve; where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. Rabiu v. Kano State (1980) 8-11 SC 130 at 149.”
The provisions of the Constitution should be interpreted in a liberal way so as not to subvert the real intention of Lawmakers. The court should always bear in mind the ‘Harmonious Construction’ or ‘Whole Statute’ rule.
See Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1.
With respect to the cannon of interpretation of statute which erode the rights of individuals, the senior counsel for the appellant cited Din v. A.G. Federation (1998) 9 SCNJ 14 at 47 wherein it was pronounced as follows:
“Now it is an accepted principle of interpretation of statutes that statutes which erode on the right of a subject be they personal or proprietary rights attract strict construction by the court. The implication of that principle is that they are construed fortissimo contra preferentes if possible so as to respect such personal or proprietary rights.”
The senior counsel also cited Nwosu v. I.S.E.S.A. (1990) 4 SCNJ 97 at 122 where the apex court pronounced as follows:
“The court had to be guided by the principle that every superior court of record guards its jurisdiction jealously. So while a person’s access to have his civil right adjudicated by a court may be restricted or ousted by statute the language of such a statute must be construed strictly.”
After a careful reading of the reliefs claimed by the appellant at the lower court, it goes without saying that the issue of when the tenure of the appellant as Governor of Anambra State of Nigeria would cease is the real subject matter of the instant action. It does not matter however the reliefs are couched.
A thorough and community reading of sections 184 and 285(1) & (2) of the 1999 Constitution makes it clear that the Election Tribunal has an exclusive and original jurisdiction on issues bordering on electoral matters.
By virtue of section 285(2) of the 1999 Constitution, one or more election tribunal is established in each of the states of the Federation to adjudicate on electoral matters. Refer to Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319 at 360.
I must note it here that section 251 (1) of the Constitution gives the Federal High Court exclusive jurisdiction in respect of the matters listed therein. But it does not cater expressly for jurisdiction of the Federal High Court on electoral matters. The law is expressio unius exclusio alterius – the express mention of a thing excludes the others. See Major & Co. Ltd. v. Schroeder (1992) 2 NWLR (Pt. 101) 1.
It is clear to me that the Lawmaker has, without any reservation, assigned to the Election Tribunal exclusive jurisdiction on fallouts of election and tenure matters and therefore no other court can entertain same.
The Federal High Court has its own exclusive jurisdiction in matters covered by section 251 (1) of the Constitution. It is like what I may refer to as division of labour. And where as in this case, section 285(1) and (2) give exclusive jurisdiction to Election Tribunal over electoral matters, the Federal High Court has no jurisdiction. The learned trial judge was right in the position taken by him. I respectfully call to mind my stand in the case of Nabaruma v. Ofodile (2004) 13 NWLR (Pt. 891) 599 at 623. See also Enagi v. Inuwa (1992) 3 NWLR (Pt. 231) 584 at 565.
Let me further state it here that section 251 (1) of the 1999 Constitution cannot be read literally as doing so may subvert the express and special jurisdiction granted by the makers of the Constitution to the election tribunal on matters touching on electoral matters generally. Such will go against well established cannons of statute interpretation such as ‘liberalism’, ‘harmonious construction’ or ‘whole statute’ rule. See A.G. Abia State v. A.G. Federation (2006) 16 NWLR (pt. 1005) 265; A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1.
It must be stated here that no one is trying to gag the appellant from pursuing his cause. The point being made is that he should initiate his process in the right tribunal. As aptly put by the Supreme Court in the case of A.G. Fed. v. A.G. Abia State & 35 ors (2001) 11 NWLR (Pt. 725) 689 at 698, ‘the question is not whether the plaintiffs case has no merit but whether the plaintiff is in the right court’.
On behalf of the appellant, learned senior counsel opined that section 131 of the Electoral Act 2002 covers the, four prayers that could be sought at an Election Tribunal. He felt that consideration of tenure of office is not one of them. That was an ingenious submission. But I dare say that the grounds stated in s.131 of the Electoral Act, 2002 cover the fallouts from an election.
While sections 184 and 285 of the 1999 Constitution provide for the tribunal to hear matters relating to tenure of office after a Governor must have taken appropriate Oaths. In any event, there is no way by which the provision of the Electoral Act, 2002 can negatively stand in the way of the Constitution.
The appellant as plaintiff couched his reliefs in declaratory and injunctive forms. But as stated earlier on, he desired that pronouncement be made on his tenure of office. The reliefs as claimed and reproduced earlier on in this judgment cannot be employed as a subterfuge of his real claim which relates to determination of his tenure of office. Such ploy does not change the character of the matter as an election matter which clearly belongs to the appropriate Election Tribunal. Refer to All Nigeria Peoples Party v. The Returning Officer Abia State & ors. SC 78/78/2005; judgment delivered on 22nd February, 2007.
There was the mention, though in passing it seems, that the Election Tribunal is an ad-hoc tribunal. And one may say that same prompted the appellant to approach the wrong court. One needs to remind the appellant that section 285 of the Constitution provides that there shall be at least one Election Tribunal in each state of the Federation. It did not say on ad-hoc basis. And so if the appellant desired to approach the Election Tribunal which is the right tribunal, he should have approached the appropriate authority for necessary action. As an insider, I know very well that the leader of this court is very much alive to his responsibility. The appellant did not act in the right direction to his own detriment. I refer to Atiku Abubakar v. A.G. Federation & ors (2007) 3 NWLR (Pt. 1022) 601. The case had to do with the tenure of office of the Vice President, Federal Republic of Nigeria. He filed his action directly at the Court of Appeal vide its original jurisdiction as provided by section 239(1) (b) of the 1999 Constitution. The section provides that the Court of Appeal has exclusive jurisdiction to determine whether (b) the term of office of the President or Vice President has ceased’. He did not make the mistake of going to the Federal High Court.
By parity of reasoning, section 285 provides that the Election Tribunal shall have exclusive original jurisdiction to determine – ‘(1) (b) whether the term of office of any person under this Constitution has ceased’. The appellant, being the Governor of Anambra State, is a person under the Constitution who desired to know when his term of office will cease.
Section 184 mandates the National Assembly to make provisions in respect of ‘(a) persons who may apply to an election tribunal for the determination of any question as to whether ‘(ii) the term of office of Governor or Deputy Governor has ceased’. The provision is similar to that of the President and Vice President. I seriously feel that the case of Atiku Abubakar (supra) should have served as an eye opener to the appellant. He should have approached the Election Tribunal. I do not want to say it that any argument to the contrary may have the semblance of an eye wash.
I must say it here that the appellant approached the wrong court for his redress. The learned trial judge was right when he found that his court has no jurisdiction. I am completely at one with him. I accordingly resolve issues i & ii against the appellant. The next issue relates to the stance of the lower court on reference of certain questions for answers by this court vide section 295(2) of the 1999 Constitution. It is issue iii in the appellant’s brief and issue 2 in the Respondents’ briefs of argument.
Parties are ad idem that the determinants for a proper case of reference from a lower court to this court, based on section 295(2) of the 1999 Constitution are as follows:
a. The question for referral must be as to interpretation of the Constitution.
b. It must arise from the proceedings of the lower court.
c. It must involve a substantial question of law.
The above three requirements must co-exist. See Ifegwu v. FRN (2003) IS NWLR (Pt. 842) 113 at 150; Bamaiyi v. A.G. Fed. (2001) 12 NWLR (Pt. 727) 468 at 475; Rossek v. ACB (1993) 8 NWLR (Pt. 312) 371.
The 3rd requirement has been held to mean point of law which is capable of more than one interpretation. See Bamaiyi v. A.G. Fed. (supra).
It must be a point of law of general public importance or interest. See FRN v. Ifegwu (supra). It must directly and substantially affect the rights of the parties or it is still an open question that has not been pronounced upon in a binding decision of the Supreme Court or is not free from difficulty or there is confusion as to what the law is on the point.
I have already sustained the finding of the learned trial judge that he had no jurisdiction to entertain the appellant’s Originating Summons. I have my reservation about whether the learned trial judge should go ahead to consider the point relating to reference. He is also deprived of jurisdiction to refer questions to the Court of Appeal.
Question I relates to the point of jurisdiction to entertain the matter.
Whenever issue of jurisdiction is raised, it is not for the court just to wash off its hands. When raised, it is for the court to determine whether in fact it has one imbued in it. See Ogunmokun v. Mil. Admin Osun State (1999) 3 NWLR (Pt. 594) 261.
The lower court, relying on the case of ANPP v. R.O.A.S. (supra), found that issue of jurisdiction was settled by the Supreme Court and needed no reference. I agree with him. The apex court found that however a relief is couched, an electoral matter as herein – determination of tenure of office is for the appropriate Election Tribunal. There is no longer anything novel, difficult or obtuse about the issue of jurisdiction of the Federal High Court in election matters which the makers of the Constitution expressly and exclusively reserved for Election tribunal vide sections 285 and 184 of the Constitution. The forum where tenure of office should be determined is no longer a moot point. It provides no difficulty whatsoever.
The learned trial judge considered the issue whether constitutional rights can be waived and dismissed same, as improper for reference. I agree that there is nothing recondite in it. Waiver is the intentional or voluntary relinquishment of a known right. Atlas Life Ins. Co. v. Schrimsher 179 OKL. 643, 66 p. 2d 944, 948. See also Nnonye v. Anyichie (2005) 2 NWLR (Pt. 9) 623 at 647, 666; Ariori v. Elemo (1983) 1 SC 13.
The appellant, no doubt, met a brick wall in respect of the issue of jurisdiction and urged strenuously to simply transfer, as it were, the substantive issues raised to the Court of Appeal. As noted by the Supreme
Court in Atiku v. A.G. Fed. 1 SC 7/2007 delivered on 25th January, 2007 such is not right.
The three requirements for reference of the questions as desired by the appellant have not been met. I have no hesitation in resolving the issue against the appellant.
The last point is whether I should act under s. 16 of the Court of Appeal to consider the merit of the Originating Summons. Authorities abound that the trial court must have jurisdiction to entertain the case before this court can exercise its powers under the stated section 16 of the Court of Appeal Act. See Inokoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 613. In Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608, this court found therein that the lower court had jurisdiction before the Court of Appeal acted under s. 16 of the Court of Appeal Act. In the present matter, the lower court has no jurisdiction. It will not be logical for us to act under s. 16 of the Court of Appeal Act. I do not want to be dragged into such a melee. I therefore keep my peace on the point.
In conclusion, I find that the appeal lacks merit and it is hereby dismissed. I confirm the order of the learned trial judge in which he struck out the appellant’s Originating Summons. The order was proper in the prevailing circumstance. See Governor of Kogi State v. Hassan Yakubu & anr (2001) FWLR (Pt. 43) 50 at 368.
Appeal dismissed. Appellant’s Originating Summons filed at the lower court is struck out. The appellant shall pay N5,000 to each set of 1st-7th Respondents.
KUMAI BAYANG AKAAHS, J.C.A.: Following the return of democracy in Nigeria after the Military inter regnum lasting 15 years from 31st December 1983 to 29th May, 1999, elections were held nationwide which ushered in democratic rule on 29th May, 1999 under the 1999 Constitution. Four years later, another general elections were held in 2003 to elect the President, Governors, Members of the National Assembly (Senate and House of Representatives) and the State Legislatures for four year tenure. The President and Governors were sworn in on 29th May, 2003 and their tenure is due to end on 29th May, 2007.
In the Governorship election in Anambra State, the candidate of the Peoples Democratic Party (P.D.P.), Dr. Chris Ngige was declared the winner of the election and was returned as the elected Governor. He was therefore sworn in as the Governor of the State on 29th May, 2003. Mr. Obi who contested for the election under the umbrella of All Progressive Grand Alliance (APGA) challenged the declaration and return. In its judgment delivered on 11th August 2005, the Tribunal upheld Mr. Obi’s petition and declared that he was the candidate validly and duly elected and returned as Governor of Anambra State. He was not sworn in immediately until the 17th March, 2006 after the Court of Appeal had dismissed the appeal filed by Dr. Chris Ngige, the erstwhile Governor, in its judgement in the consolidated Suits No. CA/E/EPT/5A/2005; CA/E/EPT/5B/2005; CA/E/EPT/5C/2005; CA/E/EPT/5D/2005 and CA/E/5E/2005 delivered on 15th March, 2006. (The Judgement is reported in (2006) 14 NWLR (Pt. 999) 1-241). On 12th February, 2007, he took out Originating Summons before the Federal High Court sitting in Enugu against the Independent National Electoral Commission (INEC) in Suit No. FHC/EN/CS/27/2007 asking for the determination of the following questions:-
1. Whether having regard to section 180 (2) (a) of the 1999 Constitution, the tenure of the office of a Governor first elected as Governor begins to run when he took the Oath of Allegiance and oath of office.
2. Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took oath of allegiance and oath of office on 17th March, 2006 and has not served four year tenure as provided under section 180 (2) (a) of the 1999 Constitution.
AND THE PLAINTIFF THEREFORE prays for the following orders:-
1. A declaration that the four year tenure of office of the plaintiff as Governor of Anambra State began to run from the date he took the Oath of Allegiance and oath of office being the 17th day of March, 2006.
2. A declaration that the Federal Government through the Defendant being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the Plaintiff as the incumbent
Governor has not served his four year term of office commencing from when he took the oath of allegiance and oath of office on 17th March, 2006.
3. Injunction restraining the Defendant (sic) by themselves, their agents, servants, assign (sic) and privies or howsoever from in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day 0 f March, 2006 when the Plaintiff’s tenure of office will expire.
An amended originating summons was filed after 2nd and 3rd, 4th to 8th respondents had applied to be joined as parties. The original sole defendant filed a memorandum of conditional appearance which was accompanied by a Notice of Preliminary objection containing the following seven grounds:-
1. There is no reasonable cause of action disclosed or identified by the summons and the action is incompetent.
2. The action is purely speculative and an academic exercise and inconsistent, the Plaintiff and his sponsoring political party having already filed and presented nomination form and sworn to an affidavit to seek re-election in 2007.
3. The tenure of plaintiff as Governor of Anambra State of Nigeria ceases when his successor in office takes the oath of office in 2007 upon election as provided by section 180 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999.
4. The Electoral Law made pursuant to the Constitution had provided for a returned candidate to remain in office pending the determination of an appeal.
5. There is no constitutional or statutory provision for extension of tenure of office of Governor of a State to accommodate inability to take oath of allegiance and oath of office due to pending election appeal.
6. Documents referred to and relied upon by Plaintiff in the supporting affidavit are not annexed as required by rules of this Honourable Court.
7. The Honourable court lacks jurisdiction to entertain and/or determine questions as to whether the tenure of the office of a Governor or Deputy Governor has ceased or when it will cease.
In addition to the Notice of Preliminary Objection, the original Defendant deposed to a counter-affidavit in opposition to the Originating Summons contending that the Plaintiff as well as others had applied for nomination by their respective political parties for gubernatorial election for the seat of Governor of Anambra State which shall become vacant in May, 2007 and it will lead to chaos for the States within the Federal structure to hold such election on different dates.
By a motion on notice dated 28th February, 2007 the Plaintiff prayed the Federal High Court to refer certain questions which arose in the proceeding to the Court of Appeal to provide answers thereof, pursuant to section 295 (2) of the 1999 Constitution namely:-
1. Whether having regard to section 251(1) of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court has jurisdiction to entertain this case, which in the main calls for the correct interpretation of section 180 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999?
2. Whether the plaintiff is a “person first elected as Governor” within the meaning of section 180 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999?
3. In view of section 180 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 when did the tenure of office of the plaintiff begin to run having regard to the fact as admitted by both parties, that the plaintiff took the Oath of Allegiance and Oath of Office as Governor of Anambra State on 17th March, 2006?.
4. Having regard to the fact that Plaintiff took the Oath of Allegiance and Oath of Office on 17th March, 2006, is the Plaintiff not entitled to enjoy the full tenure of 4 years for the office of Governor as prescribed by section 180(2) (a), of the Constitution of the Federal Republic of Nigeria 1999?
5. Can the defendant lawfully abridge the tenure of 4 years prescribed by the Constitution of the Federal Republic of Nigeria 1999 for a person such as the plaintiff elected as Governor of a State by holding election for the office of Governor for the State in the middle of plaintiffs tenure, in other words can the Defendant lawfully conduct a Governorship election in Anambra State in April, 2007, notwithstanding the fact that the plaintiff took the Oath of Allegiance and oath of office only on the 17th March, 2006?
6. On a proper interpretation of Section 180 of the 1999 Constitution of the Federal Republic of Nigeria particularly Section 180 (2) (a) must election be held in all the 36 States of the Federal Republic of Nigeria on the same date or at the same period irrespective of the date the Governor of a State was sworn and regardless of the provisions of section 180 (2) (a) of the 1999 Constitution of Nigeria?
7. Has the plaintiff waived his right to continue to remain in office as the Governor of Anambra State for the full tenure of four years when the plaintiff is not a candidate recognized by the Defendant in 2007 general election into the gubernatorial election (sic) in Anambra State?
The motion was opposed by the Independent National Electoral Commission and Maduakolam Igwe, a Legal Practitioner from the Chambers of Chief Chris Uche (SAN) & Co deposed to a 7 paragraph counter-affidavit on 1/3/2007 in which he averred as follows in paragraphs 3, 4, 5 and 6 of the said counter-affidavit:
“3 That I have read the motion on notice for reference of this suit to the Court of Appeal for determination of constitutional questions, and I state that paragraphs 7 to II thereof are not correct and are hereby denied.
4. That I am advised by my principal, Chief Chris Uche, SAN, and I verily believe him, that no question as to the interpretation or application of the Constitution of the Federal Republic of Nigeria 1999 has yet arisen in the proceedings before this Honourable Court to warrant reference of same to the Court of Appeal.
5. That he has further advised me and I verily believe him, that the questions sought to be referred, are merely the same questions presented before this Honourable Court for determination, and which the court is yet to look into, same coming up for the first time.
6. That the Defendant has entered a conditional appearance and filed a notice of preliminary objection to this suit on ground of lack of jurisdiction, and it is in the interest of justice for this court to hear and determine same.”
From the further affidavit which was sworn to by Theophine Ugochukwu Oguji on 9/3/2007, the reason why the Plaintiff applied on the said 28/2/2007 was because the Independent National Electoral Commission refused to accept his nomination forms to contest the 2007 Governorship Election in Anambra State. The motion earlier filed on 28th February, 2007 was amended on 8/3/2007 to reflect all the parties who had applied to be joined and was filed on 9/3/2007. The 8th Defendant brought a motion on 16/3/2007 raising a preliminary objection challenging the jurisdiction of the court to entertain the Plaintiffs suit to wit:
ISSUE NO.1
Whether this court has jurisdiction to entertain the Plaintiff’s originating summons upon the two principal reliefs which are not challenging or touching on the administration, management. Control and or revenue of the Federal Government or any of its agencies by virtue of Section 251 (I) (p) (q) (I) and (s) of the 1999 Constitution?
ISSUE 2
Whether having regards to the Plaintiff’s questions proposed in the originating summons, the reliefs sought against the parties, in purview of Section 184 and particularly Section 285 of the Nigerian Constitution which is not subject to Section 251 (1) of the said 1999 Constitution the Federal High Court can legally entertain this action?
ISSUE 3
Whether the Plaintiff’s originating summons substantially complied with any law made in pursuance of Section 184 of the Constitution a condition precedent, on how the statute prescribed that suit/action ought to be brought?
ISSUE 4
Whether the entire affidavit evidence in support of the Plaintiff’s originating summons deposed to by Mr. Peter Obi in purview of his paragraphs 1 and 13, ought not be struck out for being paragraphs of an opinion of a learned seek (sic) Dr. Onyechi Ikeasu S.A.N. of Counsel, in line with the decision in NIGERIA L. N. G. LTD V A.D.I.C LTD (1995) 8 NWLR (Pt. 416) 677 at 699 – 701, thereby the Originating Summons constitutes an abuse of process of court having been filed in breach of the law?
ALTERNATIVE TO ISSUE NO.4
Whether paragraphs 3,4,5,6,7,8,9,10,11 and 12 ought not be struck out for being in violation of the mandatory provisions of sections 86, 87 and 88 of the Evidence Act?
ISSUE NO. 5
Whether the residue of the affidavit of Mr. Peter Obi paragraphs 12, 13, 14 and 15 in support of the summons disclosed a reasonable cause of action warranting a dismissal of the suit?
ISSUE NO.6
This court having become aware of the pendency of appeals No. SC/5/2006 and SC/6/2006 filed by the 8th Defendant/Applicant against the Plaintiff/Respondent and the 1st Defendant/Respondent touching on the res (Governor of Anambra State), whether this suit by the Plaintiff/Respondent for a declaration of his right on the same res ought not be stayed sine die to a wait the decisions of the Supreme Court?
The grounds for the objection are:-
(a) The jurisdiction of the Federal High Court to entertain any suit is by virtue of Section 251 (l) (p), (q)(r) and (s) of the 1999 Constitution of the Federal Republic of Nigeria.
(b) The jurisdiction conferred on tribunals envisaged under Section 285 of the 1999 Constitution is a special jurisdiction.
(c) Having regard to Section 316 (I) of the 1999 Constitution the Tribunals envisaged to be established under Section 285 are not in existence, more so the said Section 285 is “subject to” Section 251 (I) of the Constitution.
(d) There are no enactments made by the National Assembly regarding who can bring action in respect to the reliefs sought in the summons in purview of the mandatory provisions of Section 184 of the Constitution.
(e) Sections 77 to 89 of the evidence act which set out provisions governing affidavits, are part of the Federal High Court (Civil Procedure) Rules 2000.
(f) This Court does not share jurisdiction with the Supreme Court over the subject matter of this suit currently pending before the Apex Court.
Both written as well as oral arguments were proffered by learned counsel to the parties. On 30th March, 2007, the learned trial Judge delivered a considered ruling dismissing the motion for reference and striking out the suit for lack of jurisdiction. The Plaintiff felt aggrieved with the decision and filed two notices of appeal dated 3rd April, 2007 and 18/4/2007 respectively. The two Notices of Appeal were filed within time.
At the hearing of the appeal, Dr. Ikpeazu, SAN, Learned Senior Counsel for the appellant withdrew the Notice of Appeal dated 3/412007 and same was accordingly struck out. The 8th Respondent who had earlier filed a motion praying for an order striking out the Notice of Appeal filed on 18/4/2007 and dismissing the appeal or in the alternative for an order striking out ground III of the Notice of Appeal as well as Issue III formulated from the said ground filed a Notice withdrawing the preliminary objection and his Brief of argument. The preliminary objections to the Notice of Appeal as well as the 8th Respondent’s Brief were accordingly struck out. The Respondents left to argue the appeal were 1st – 7th Respondents. Chief Idigbe SAN who appeared for the 1st Respondent filed a preliminary objection objecting to ground 4 of the Notice of appeal. Mr; Udenze, learned counsel for the 4th and 5th respondents adopted the preliminary objection filed by Chief Idigbe SAN on the issue of jurisdiction only and stated that any attempt to descend into the substantive issues will occasion gross miscarriage of justice on the 4th and 5th respondents. This to me is a strange way of raising preliminary objection. Learned counsel filed written briefs. The briefs of 1st, 4th and 5th respondents were deemed filed on 9/5/2007. The appellant filed reply briefs in answer to the preliminary objections raised by 1st respondent as well as 4th and 5th respondents. A reply brief was also filed in answer to the 2nd and 3rd respondents’ briefs. Learned Counsel adopted the briefs filed as well as the replies.
In the appellant’s brief of argument four issues were raised from the four grounds of appeal contained in the Notice of appeal dated and filed on 18/4/2007. The issues are:-
1. Whether the learned trial Judge was correct when, in declining Jurisdiction to adjudicate on the Appellant’s Originating Summons, he held that the determination of the commencement of appellant’s tenure of office ought to have been raised as an ancillary matter at the Election Tribunal and in the resultant appeal from the judgments of the said Tribunal.
2. Whether the learned trial Judge was correct when he declined jurisdiction and held that the prayers in the Appellant’s Originating summons were matters within the jurisdiction of the Election Tribunal relying on the decision of the Supreme Court in ANPP V RETURNING OFFICER ABIA STATE Sc.78/2005 delivered on 22nd February, 2007.
3. Whether the learned trial Judge was right in refusing either to refer the questions framed, or to formulate questions for reference to the Court of Appeal.
4. Whether the Appellant who is the Governor of Anambra State shall hold office for four years from the date he took the Oath of Allegiance and Oath of Office having regard to Sections 180 (2) (a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.
The 1st Respondent formulated three Issues In respect of the preliminary objection as fllows:-
A. Whether the 1st Respondent’s Preliminary objection ought to be upheld and the ground and issues on consideration of the Originating Summons not, canvassed in the Court below struck out.
B. Whether this is an appropriate case for exercise of the jurisdiction of the Court of Appeal to hear the Originating Summons under the provisions of S.16 of the Court of Appeal Act.
C. Whether this Honourable Court is seized with original jurisdiction to grant reliefs (iv) to (viii) of the Notice of Appeal.
Learned Senior Counsel for 1st Respondent submitted the following issues for consideration in the appeal in the event that the Court of Appeal is of the opinion that all grounds in the Notice of Appeal are valid:
(a) Whether the learned Judge was correct to decline jurisdiction over the subject matter of the Plaintiff/Appellant’s Originating Summons and in particular.
I. Whether the subject matter in the Appellant’s claim did not border on tenure of office for which the 1999 Constitution of the Federal Republic of Nigeria (hereafter called the Constitution or (CFRN), Cap. C 23, Laws of the Federation, 2004 has exclusively vested special jurisdiction on a specialized court to wit Election Tribunal by virtue of Sections 285(2) and 184.
II. Whether the lower court was correct in following judicial precedents of the Supreme Court with respect to the ouster I of the Court’s jurisdiction bordering on electoral and tenure matters provided for in Sections 285 and 184 of the 1999 Constitution, having regard to the subject matter disclosed by the Appellant’s Originating Processes.
III. Whether the Lower Court was right in holding that persons such as the Appellant are expected to pursue their case fully and not engage in piecemeal litigation in accordance with Public Policy that litigation must come to an end.
b. Whether the Lower Court was right in holding that the matters sought to be referred to the Higher Court were not proper subjects for reference in view of the recent Supreme Court case of ALBAJI ATlKU ABUBAKAR V ATTORNEY GENERAL OF THE FEDERATION (2007) 3 NWLR (Pt.1022) 601 and a host of other cases on the issue of Constitutional reference.
c. Whether, if and only if the1st Respondent’s Preliminary Objection is, not upheld, the reliefs sought in the Originating Summons of the Appellant ought to be granted having regard to the clear provisions, framework and intendment of the 1999 Constitution.
Two issues were formulated for determination in the brief filed by Mr. Okafor of counsel for the 2nd Respondent namely:-
1. Whether the Federal High Court Enugu had jurisdiction to adjudicate on the Appellant’s Originating Summons.
2. Whether the learned trial court was right in refusing either to refer the questions framed or to formulate questions for reference to the Court of Appeal.
Mr. Ezechukwu, learned counsel for 3rd Respondent also formulated Mr. Udenze of Counsel to 4th and 5th Respondents distilled the following two issues for determination:-
1. Whether the learned trial Judge was correct in declining jurisdiction on the appellant’s Originating Summons, when he held that the prayers were matters relating to the commencement of the Appellant’s tenure of office, same being matters within the jurisdiction of the Election Tribunal and ought to have been raised as an ancillary matter at the Election Tribunal and the resultant appeal from the judgment of the said Tribunal.
2. Whether the learned trial Judge was right in refusing to refer the question formulated for reference to the Court of Appeal by the appellant.
Prince Orji Nwafor-Orizu representing the 6th and 7th Respondents adopted the issues formulated by the appellant and replied to them seriatim.
Ground 4 of the Notice of Appeal dated 18/4/2007 on which the preliminary objection of the 1st Respondent is based reads:-
“GROUND IV ERROR IN LAW
The learned trial Judge who had jurisdiction to entertain the originating summons erred in law in not determining the merits of the Originating Summons after dismissing the application for reference.
PARTICULARS OF ERROR
(i) The court being a trial court is under a duty to consider all the issues raised and argued by the parties.
(ii) The parties argued exhaustively:-
(a) The issue of jurisdiction to entertain the suit.
(b) Whether the questions posed for reference can be referred by the trial, court to the Court of Appeal.
(c) Whether Sections 251(1), 180 (1), 180 (2), 184, 185, 178 (1) & (2), 104 of the 1999 Constitution of the Federal Republic of Nigeria properly interpreted applied and operated in the light of the fact that the Plaintiff/Appellant (sic) was sworn in 17th March, 2006 whether the Plaintiff/ Appellant will not be in office until 17th March, 2010.
The trial court stated in the ruling of the court that parties have argued in depth on the interpretation of Section (sic)180, 181,178 ofthe 1999 Constitution.
The trial Court in the ruling of the court pronounced on (a) the issue of lack of jurisdiction of the court and still proceeded in the event the court is found to be wrong to pronounce on the issue of reference to the Court of Appeal.The court did not pronounce on the interpretation of sections 180, 181, 178 of the 1999 Constitution in the event the Court’s ruling on lack of jurisdiction or lack of issues substantial and sufficient for a reference is held as wrong by this Court.
The Court was sufficiently placed in a position to pronounce on the interpretation of Section 178, 180, 181 and 185 of the 1999 Constitution of Nigeria thereby taking the preliminary objection and the substantive issues together”.
As recounted by Chief Idigbe SAN, learned counsel for the 1st Respondent, it was when the Appellant as Plaintiff was served with the 1st Respondent’s objection and the grounds therein disclosed as well as the counter-affidavit on the 26/2/2007 that he (Appellant) immediately sought for the matter to be wholly transferred to the Court of Appeal by way of 19 motion for reference dated 28/2/2007 claiming that the issues raised by the Plaintiffs pleadings was a recondite and substantial question of Constitutional law which will necessitate that the matter be referred to the Court of Appeal for interpretation and the guidance of the lower court. It is against this background that the matter came up for hearing on 1st March, 2007. Other respondents in the appeal who were joined in the matter also filed their various written application and addresses challenging the competency of the suit. Beside the objections raised by 1st Respondent’s counsel, Faji, J., the learned trial Judge also raised a point suo motu i.e. whether the lower court was not bound to follow three recent decisions of the superior Courts in CA/E/3/2007 – BALONWU & ORS V PETER OBI delivered on 9/2/2007, ADELEKE V OSHA (2006) 16 NWLR (Pt. 1006) 608 and INAKOJU & ORS V R. LADOJA & ORS (2006) 18 NWLR (Pt.1012) 667 which were fully argued by counsel for all the parties upon which the learned trial Judge delivered his judgment which is now the subject of this appeal. He said it is only 1st Respondent’s preliminary objection on jurisdiction and Appellant’s motion for reference and the 8th respondent’s preliminary objection that were taken. The Originating Summons was not argued and it was never canvassed in the lower court that it ought to have been taken. Learned Senior Counsel submitted that grounds of appeal are premised upon the issues joined and argued by the parties in the court below and upon which the lower court reaches a decision. In this case the court only based its decision on the pending preliminary objections as to its jurisdiction and arguments over whether the subject matter of the suit was one suitable for reference to the Court of Appeal. Learned Senior Counsel relying on Order 3 Rule 2 Court of Appeal (Amended) Rules of 1984 submitted that only the interlocutory applications and NOT the claim in the Appellant’s Originating summons are for this court to decide. It follows therefore, that there is no matter to be reheard before the Court of Appeal with respect to the merit of the Appellant’s case. The case of BASIL V FAJEBE (2001) 4 SC (Pt. II) 19 was cited in support. It was argued that the issue being raised in the Notice of Appeal is a fresh point for which the leave of the lower court or this Court must be sought and obtained and failure to seek the said leave renders the new issue incompetent. The following cases were cited: LEBILLE V REG. TRUSTEES C & S (2003) 2 NWLR (Pt. 804) 399; HYPPOLITE V EGHAREVBA (1998) 11 NWLR (Pt. 575) 598 and GODWIN V C.A.C. (1998) 14 NWLR (Pt 584) 162. He therefore urged this court to strike out Ground 4 in the Notice of Appeal and Issue IV formulated therefrom from the Appellant’s Brief which touches on the issues raised by the Appellant in the substantive case which were not matters canvassed by the parties in the lower court nor did the Court decide on those issues. Learned Senior Counsel submitted that reliefs (iii) and (viii) in the Notice of Appeal are incompetent since they flow from Ground IV and Issue IV as formulated by the Appellant. It is contended that the lower court could not have been in a position to look into the substantive matter between the parties in view of the Preliminary Objection as to its jurisdiction. The court was confronted with an issue of jurisdiction that it needed to resolve first, and it is trite that where it is found that the court lacks jurisdiction and it proceeds to hear or entertain the matter, any decision taken in such proceedings is a nullity, void and of no effect no matter how ably conducted the proceedings are. See LABAHAN V OKOYE (1995) 4 NWLR (Pt. 389) 303.
Turning to issues 2 and 3, learned Senior Counsel argued that certain conditions precedent must be met in order to invoke section 16 of the Court of Appeal Act to enable this court assume jurisdiction as court of first instance. The conditions which must bb met are:-
(i) The Lower Court must have jurisdiction to entertain the case before the Court of Appeal can entertain same
(ii) The real issue disclosed by the claim of the Appellant at the Lower Court is distilled from the grounds of appeal.
(iii) Necessary materials must be available to the Court for consideration.
(iv) The need for expediency in order to meet the end of justice.
(v) Hardship when the matter is returned to the Lower Court.
See: INAKOJU V ADELEKE (2007) 4 NWLR (Pt.1025) 432. It is argued that upon a review of Sections 184 and 285 (1) & (2) of 1999 Constitution, it is clear that the Election Tribunal has an exclusive and original jurisdiction on issues bordering on electoral matters. Further by virtue of Section 285 (2) 1999 Constitution, one or more of such Governorship election tribunals are established in each of the States of the Federation See: OGBORU V IBORI (2205) 13 NWLR (Pt. 942) 319 I Section 251(1) does not in any way expressly cater for jurisdiction of the Federal High Court on electoral matters. The Supreme Court and Court of Appeal have made pronouncements on this issue. See: A.N.P.P V R.O.A.S.S.D. (2005) 6 NWLR (Pt. 920) 140; NGIGE V NWACHUKWU (2005)2 NWLR (Pt.909) 123 and OGBORU V IBORI (2005) 13 NWLR (Pt. 942) 319; ENAGI V INUWA (992) 3 NWLR (Pt. 231) 548.
Dr. Ikpeazu SAN, learned counsel for the appellant filed a Reply Brief in answer to the Preliminary objection raised by the 1st Respondent.
He contended that Order 3 rule 2 which was relied on by Senior Counsel for 1st Respondent, being a rule of court, cannot override the provisions of Section 16 Court of Appeal Act which applied both in interlocutory applications and in the main claim. Upon filing the Notice and Grounds of Appeal and the Briefs of argument in an appeal, the wide powers of the Court of Appeal contained in Section 16 can be invoked and it thus applied with respect to the merit of the Appellant’s case. He argued that by virtue of Section 16 of the Court of Appeal Act, this court is given the full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and the court may rehear the case in whole or in part. It is equally not the law, argued learned Senior counsel that where the trial court does not hear the case on the merits and make pronouncements thereon that the Court of Appeal cannot do so under Section 16. Reliance was placed on the following cases for the propositions of law: ADELEKE V O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608; INAKOJU V ADELEKE (2007) 4 NWLR (Pt. 1025) 423; EKPA V UTONG (1991) 6 NWLR (Pt. 197) 258; JADESIMI V OKOTIE EBOH (NO.2 (1986) 1 NWLR (Pt. 16) 264; A.G. ANAMBRA STATE V OKEKE (2002) 12 NWLR (Pt. 782) 572. Learned Senior Counsel put the real question in controversy in this appeal as:-
(i) The jurisdiction of the Federal High Court to entertain the suit,
(ii) The failure of the learned trial Judge to make a reference to the Court of Appeal, and
(iii) Whether the Court of Appeal can in the circumstances invoke Section 16 of the Court of Appeal Act to determine the Originating summons, which the trial Judge who had jurisdiction failed to determine even though there are sufficient materials to decide the merit of the substantive suit.
It was submitted that Ground IV of the Grounds of Appeal is competent and no leave of the court is required to raise it since it arose from the effect of the decision of the lower court that it lacked jurisdiction and the refusal to make a reference and striking out of the Originating Summons.
The complaint in Ground IV is that the lower court, in determining the preliminary objection and refusing to make a reference, should have in the alternative proceeded to also consider the Originating Summons as it had sufficient materials to do so. It is being argued that leave is not required as the trial court having struck out the Originating Summons for lack of jurisdiction proceeded to exhaustively examine Sections 295 and 208 of the 1999 Constitution on the question of reference and immunity. It is the contention by the learned Senior Counsel that the complaint of the Appellant.
In Ground IV is essentially procedural, that is, that the lower court was sufficiently placed to pronounce on the Originating Summons but failed to do so and the effect of failure to do so by the court. A ground of appeal may arise out of a ruling or judgment of the court. It may also arise out of the failure of the court to do a particular thing or failure to follow a particular procedure. A complaint that the particular procedure was not followed can still sustain a ground of appeal and render the ruling or judgment liable to be set aside. Leave of the court is not required in the circumstances to raise such a ground of appeal. Learned Senior Counsel argued that the Court of Appeal does not inquire into disputes, save when exercising its powers under Section 16 but it inquires into the way in which disputes have been tried and decided. Reliance for this submission was placed on NDILI V AKINSUMADE (2000) 8 NWLR (Pt. 668) 293. Learned Senior Counsel argued that having declined jurisdiction, the court need not consider section
295 (2) on the question of reference but it did. Having done so, the trial court ought also to have considered the substantive case on section 180 (2) in the alternative.
Replying on the issue of jurisdiction, learned senior counsel argued that Section 285 of the 1999 Constitution is bifurcated. While subsection (1) deals with National Assembly Election Tribunal, subsection (2) created the Governorship and Legislative Houses Election Tribunal which relate to the offices of a Governor and Deputy Governor of a State and members of the House of Assembly. It vested it with jurisdiction over only “whether any person has been validly elected to the office of Governor or a member of any legislative house.” He submitted that the tribunals thus created were not vested with the jurisdiction to hear petitions as to whether the term of office of any person has ceased. He said that Section 184 did not in any form create any tribunal of any kind as the section deals only with right of action or locus standi. Learned Senior Counsel contended that there must be an enabling enactment before any court or tribunal can be said to have been vested with jurisdiction or judicial powers. He contended that the principle of law to the effect that where a statute has given exclusive jurisdiction to another tribunal or hierarchy of tribunals, the jurisdiction of the ordinary court to grant such remedies is ousted, can only apply upon an express indication that an exclusive jurisdiction has been manifestly conferred on a tribunal. In the absence of such a prerequisite, a party will be permitted to activate the unfettered jurisdiction of the regular court. As a court cannot vest itself with jurisdiction, so also a court cannot divest itself of jurisdiction and thus abdicate its vested powers to a tribunal not specifically endowed with jurisdiction to deal with a presumed special situation. It is the contention of learned Senior Counsel that a lacuna has been created in vesting exclusive jurisdiction in a tribunal created under Section 285 (2) and Section 184 which is not an enabling provision with respect to creation of a tribunal but, rather one that is procedural in nature. If this situation is allowed to prevail the judicial powers created by Section 6(6) (b) as well as the specific jurisdiction given to the Federal High Court by virtue of Section 251 (1) (q) (r) & (s) of the Constitution will be rendered inactive.
The argument being advanced by learned Senior Counsel for the appellant on the lacuna being created on the vesting of exclusive jurisdiction on a non existent tribunal is rather facile as it is porous. The Supreme Court in INAKOJU V ADELEKE supra at page 597 per Niki Tobi J.S.C. emphatically stressed that-
“This court cannot in the interpretation of specific provisions of the Constitution, gallivant about or around what makers of the Constitution do not say or intend. On the contrary, this court must interpret any section of the Constitution to convey the meaning assigned to it by the makers of the Constitution.”
It is necessary to examine sections 184 and 285 (1) & (2) of the 1999 Constitution to see if the Election Tribunal is vested with exclusive and original jurisdiction on issues bordering on electoral matters. Sections 184 and 285 of the Constitution state:-
“184 The National Assembly shall make provisions in respect of
(a) Persons who may apply to an election tribunal for the determination of any question as to whether –
(i) Any person has been validly elected to the office of Governor or Deputy Governor.
(ii) The term of office of a Governor or Deputy Governor has ceased, or
(iii) The office of Governor or Deputy Governor has become vacant
(b) Circumstances and manner in which, and the conditions upon which such application may be made; and
(c) Power, practice and procedure of the election tribunal in relation to any such application
285 – (1) there shall be established for the Federation one or more Election Tribunals to be known as the National 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;
(b) The term of office of any person under this Constitution has ceased;
(c ) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought.
(2) There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses 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 or as a member of any legislative house”. (Underlining mine for emphasis).
A combined reading of sections 184 and 285(2) of the Constitution clearly reveal that where the tenure of a Governor or Deputy Governor is in issue, the appropriate tribunal where the complaint should be lodged is the Governorship and Legislative Houses Election Tribunal of that State and in this particular instance the Governorship and Legislative Houses Election Tribunal of Anambra State established under Section 285 (2) of the Constitution. And this is the tribunal to which the Plaintiff/Appellant should have brought his originating summons. Since the Plaintiff/Appellant did not file his originating summons before the Governorship and Legislative Houses Election tribunal which has original jurisdiction to the exclusion of any other court or tribunal to determine whether his tenure as Governor of Anambra State extends to 17th March, 2010 since he was sworn in on 17th March, 2006, the Federal High Court lacked jurisdiction to deal with the Originating Summons. He instituted the action in the wrong forum and so it was liable to be struck out. See: MADUKOLU V NKEMDILIM (1962) 1 All NLR 587 at 595. The subject matter of the case which was brought before the Federal High Court is not within its jurisdiction as it is only the Governorship and Legislative Houses Election Tribunal of Anambra State that can exercise exclusive jurisdiction in the case. Section 251 of the Constitution does not in any way expressly cater for the jurisdiction of the Federal High Court in electoral matters. See: OGBORU V IBORl (2005) 13 NWLR (Pt 942) 319; NGIGE V NWACHUKWU (2005) 6 NWLR (Pt. 909) 123; ENAGI V INUWA (1992) 3 NWLR (Pt. 231) 548. A.N.P.P V R.O.A.S. Sc. 78/2005 delivered on 22/2/2007.
The other issue I wish to comment on is the invocation of Section 16 of the Court of Appeal Act. Learned Senior counsel for the Plaintiff/Appellant placed heavy reliance on INAKOJU V ADELEKE (2007) 4 NWLR (Pt. 1025) 423 in arguing that even though the trial High Court did not decide the case on the merit or even made any pronouncement on the merit of the case, the Court Of Appeal invoked its powers under Section 16 Court of Appeal Act and determined the case on the merits. The simple answer to this is that the action was instituted in the court that was clothed with jurisdiction to hear the matter and so when the Oyo State High Court declined jurisdiction based on its erroneous interpretation that section 188 (10) precludes any court from inquiring into impeachment proceedings, the Court of Appeal exercised its powers to deal with the complaint since it had sufficient materials placed before it by invoking Section 16 of the Court of Appeal Act. Certain preconditions are necessary for the invocation of the powers of the Court of Appeal under Section 16 of the Act. The conditions that must exist as laid down by the Supreme Court include:-
(a) availability of the necessary materials to consider and adjudicate on the matter; (b) the length of time between the disposal of the action at the trial court and the hearing of the appeal; and
(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties in the case.
It is needless to add that the court from which the appeal went to the Court of Appeal must have been competent to handle the case; otherwise the issue of striking out the matter for lack of jurisdiction will arise.
And in the instant case, the power which the Federal High Court had on finding that it lacked jurisdiction to entertain the action is to strike out both the Originating Summons as well as the application for reference. And this is the order which this Court can make. I hereby strike out the Originating Summons and the Reference which the Plaintiff/Appellant sought to make for the interpretation of certain Constitutional provisions by the Court of Appeal.
My learned brother, Fabiyi, J.C.A. has dealt extensively with the arguments raised in the preliminary objections. I adopt the resolution of the issues contained therein as mine. I also abide by the consequential order made on costs.
CLARA BATA OGUNBIYI, J.C.A: The appellant’s notice of appeal dated and filed 18th April, 2007 contains four grounds of appeal wherein the combined questions in controversy in summary relates to the jurisdiction of the Federal High Court to entertain the suit; the failure of the learned trial judge to make a reference to the Court of Appeal; and whether this court can in the circumstances invoke section 16 of the Court of Appeal Act to therefore determine the Originating Summons. Eight reliefs sought on the appeal are as follows:-
“(i) To set aside the decision of the learned trial judge to the effect that the Federal High Court bad no jurisdiction to entertain the Originating Summons.
(ii) To hold that the Federal High Court had jurisdiction to entertain the Plaintiffs/Appellant’s suit.
(iii) Upon the grant of prayers (i) and (ii) to invoke the powers of the Court of Appeal under section 16 of the Court of Appeal Act and to assume jurisdiction to adjudicate on the Originating Summons.
(iv) Upon relief (iii) above being granted to answer the questions for determination in the originating summons and to grant appellant’s prayers in the originating summons in the following manner.
(v) Declaration that the four year tenure of office of the Appellant as Governor of Anambra State began to run from the date he took this Oath of allegiance and oath of office being the 17th day of March, 2006.
(vi) Declaration that the Federal Government through the respondent being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the Appellant as the incumbent Governor has not served his four year term of office commencing from, when he took the oath of allegiance and oath of office of 17th March 2006.
(vii) Injunction restraining the 1st Respondent by themselves, their agent, servants assigns and privies or howsoever form in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Appellant’s tenure of office will expire.
(viii) As a consequential order, to declare null and void any steps taken by the Independent National Electoral Commission (INEC) with respect to the conduct of an election in violation of the appellant’s vested rights under section 180(2)(a) of the 1999 Constitution.”
The preliminary objection dated 3rd and filed on the 4th May, 2007, by the 1st respondent questions the competence of ground IV of the said grounds of appeal together with the corollary issue IV formulated thereon.
The said ground IV without the particulars alleges an error of law and same reproduced reads:
“The learned trial judge who had jurisdiction to entertain the originating summons erred in law in not determining the merits of the originating summons after dismissing the application for reference.”
The issue for determination questions the competence or not of ground IV of the ground of appeal. While the 2nd-7th respondents’ all aligned themselves with the 1st respondent, the learned senior counsel for the appellant submitted the optimum invocation of section 16 of the Court of Appeal Act by this court even without the said ground IV of the ground of appeal in question.
As rightly submitted and argued by the learned senior counsel for the appellant, the powers of this court under the provision of section 16 of the Act are well restated and explicit wherein it has full powers as that accorded to the court of first instance in appeal matters. However, the jurisdiction of the court so ascribed is not at large and without limitations.
It is also relevant to emphasize that the determinant factor giving rise to the jurisdiction of the lower court stems from the claim of the appellant as it is trite that the subject matter of the action shall determine jurisdiction.The case of Federal Government of Nigeria v Oshiomole (2004) 3 NWLR (Pt.860) 305, and Onuorah v KRPC (2005) 6 NWLR) (Pt.921) 393 at 397 are in point.
The provision of Order 3 rule 3 of the Rules of this court on Notice and Grounds of Appeal enjoins that all appeals must be by way of rehearing.
Needless as it is elementary to restate that grounds of appeal must be the resultant deduction of issues having been joined between parties, the consequential effect of the proceedings thus resulting into the decision appealed against. Suffice as it is instructive therefore to determine what issues were up for consideration before the lower court. As rightly submitted by the learned senior counsel for the 1st respondent, a cursory reference to the records of appeal reveals that the issues before the lower court were the appellant’s motion. For reference and the 1st and 8th respondent’s preliminary objection questioning the alleges error of law by the lower court in failing to determine the merits of the originating summons. There is no evidence of such consideration shown on the record. The argument by the learned senior counsel for the appellant with all respect runs counter to the spirit of Order 3 rule 3 wherein all appeals must be by way of rehearing. The ground of appeal to be competent must have a foundation which same cannot be independent of the lower courts’ proceedings. This is not the case in the matter at hand. The authority of Basil v Fajebe (2001) 4 SC pt.11, 19 is relevant in substantiation. Also in the case of Jadesimi v Okotie-Eboh (No.2) (1986) 1 NWLR (Pt. 16) 264 cited by the learned senior counsel for the 1st respondent, Karibi-Whyte JSC at pages 274 and 275 said:-
“Concisely stated, the powers of the Court of Appeal with respect to the determination of appeals before it is by way of re-hearing. The word rehearing in this con means a hearing on printed records by reexaming the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as a whole: The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial court Judge from facts which do not follow from the evidence or may be regarded as perverse…… Those are wide powers which enable the appellant Court to exercise all the powers of a court of first instance.”
It is trite law that the appellant cannot raise a fresh point on appeal in his notice of appeal without either the leave of the court below or this court.
Per the authority in the case of Lebile v Registered Trustees C & S (2003) 2 NWLR (Pt.304), page 399 at 422 it was instructively held and said:-
“Leave is necessary to raise an appeal, an issue not raised at the trial court. Without such leave, the party will not be heard on the point.”
Also in the case of Adeleke v O.S.H.A. (2006) NWLH. (Pt.1006) 608 cited by the appellant’s counsel, the court of appeal had the following pronouncement to make:-
“The circumstances of this case are such that at the court below, there was only the supporting affidavit of the originating summons to be considered by the trial court. There was no counter affidavit. Thus, in determining the preliminary objection, the trial court should have it in the alternative proceeded to also consider the originating summons. That should have been done by the trial court considering the time constraint in respect of the res in the case. I think considering the wide power given this court under Section 16 of the Court of Appeal Act as well as Order 1 Rule 19(3) and 4 and Order rule 23(1) of the Court of Appeal Rules 2002.this court can proceed and consider the only affidavit and give its judgment therefore……”
In subscribing to the submission by the learned senior for the 1st respondent, in the absence of the appellant first having obtained leave of court on the said ground of appeal, he is not entitled to be heard on the new point, thus rendering both the ground of appeal as well as the issue formulated thereon incompetent.
The authority of Hypollite v. Eghavevba (1008) 11 NWLR, (Pt.575) page 5998 at 612 is also instructive wherein the court held thus amongst other:-
“Where an issue is raised for the first time on appeal leave of court must be obtained, otherwise such an issue will be incompetent.” Further still and in another related decision of Godwin v. C.A.A (1998) 14 NWLR (Pt.584) page 162 at 174 the apex court unreservedly said:-
“Any ground of appeal that is raised for the first time in Supreme Court and without the leave of that court or the Court of Appeal is incompetent and should be struck out.”
In consonance with the foregoing authorities, consequently, the effect of the preliminary objection is that same succeeds and is upheld. The said ground IV of the appeal therefore and the issue IV formulated thereon are both incompetent and are accordingly struck out.
In the light of the conclusion arrived at on the preliminary objection, same has devastatively had a far-reaching effect on the outcome of reliefs (iii) to (viii) as sought for by the appellant. This is because of their flowing nature from the said Ground IV and the issue formulated therefrom.
However, and with this court being in an Intermediary Position, and in the event of an overruling by their Lordships of the apex court, it would be pertinent to take up the issue of jurisdiction which served the cardial central reasoning underlining the court’s refusal to entertain and thus striking out the suit, case of Okpala v Ezealli (1999) 4 NWLR (Pt.598) 250 is in point.
The plaintiff’s notice of originating summons is at pages 79-81 while the affidavit in support is at pages 82-83. The two questions raised therein relates to the interpretation of section 180(2) (a) of the 1999 Constitution, on the tenure of office of a Governor as provided there under and whether an election can legally be conducted into the said office before the plaintiff had served his four year tenure as a governor. The plaintiff therefore sought for, two declarative and injunctive orders flowing therefrom the said claim.
“This is not an issue of tenure in vacuo. It is an issue tied and bound to the election petition………..
the subject matter regardless of the guise under which plaintiff has couched his claim. It is not a matter for any High Court whatsoever.”
The court thereupon struck out the action as it lacked jurisdiction and further in consequence persistently resisted and refused the temptation of having to dwell in to the merit of the case in whatever way. There is no appeal by the plaintiff/appellant against the said findings of fact by the lower court to the effect that the claim is an election matter. In the Supreme Court decision of Standard (Nig.) Engineering Co. Ltd. & Other v Nigeria Bank for Commerce and Industry (2006) 2-3 SC 74 at 83 Ogbuagu JSC while delivering the lead judgment had this to say on findings of fact:.-
“It need be emphasized that the various, findings of fact by the learned trial Chief Judge, some of which I have reproduced in this judgment; were not appealed against by the appellants. The consequence in law, is that the said findings are deemed to be correct.”
Also in another authority of Bhojsons Plc v Geoffrey K. Daniel- Kalio (2006) 2 SC (part 11) p.91 at 100- their Lordships of the apex court per Mohammed JSC had this to say at pages 100-101:-
“Definitely, the court of appeal cannot pronounce on issue or finding on which the parties have not appealed against. See Adeyemi. v Olakunmi (1999) 12 SC (Pt. 11) 92;
In summary and succinctly put the subject matter as disclosed by the originating summons and the reliefs prayed for by the appellant is centered on the duration of tenure of ofiice. The question arising from the appellants pleading at the lower court is whether his tenure is from 2003 to 2007 or from 2006 to 2010?
The grouse of the appellant as rightly submitted by the learned respondent’s senior counsel therefore lies in the lower court holding that the Federal High Court lacks jurisdiction to adjudicate on the tenure of the appellant as governor of Anambra State and that same is vested in the Election Tribunal. This certainly is a Constitutional matter with the relevant central provisions being sections 180, 184, 285 and 251(l)(q) of the Constitution Federal Republic of Nigeria 1999.
The provisions of section 251(1) (q) reproduce states:-
“(I) notwithstanding anything to the contrary contained in this constitution, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters,….
(q) Subject to the provision of this constitution, the operation and interpretation of this constitution in so far as it affects the Federal Government or any of its agencies.”
Under the said subsection (q) the Federal High Court has judicial powers to interpret the Constitution of the Federal Republic of Nigeria as it affects the Federal Government or any of its agencies. However and by the use of the phrase “subject to the provision of the constitution,” same must be construed as being subservient to other provisions of the Constitution. By the use of the phrase subject to”, it implies the possibility of the section being prevailed upon by other relevant enactments. It puts a limitation on the said section which could fall short of being supreme, depending on the prevalent enactment bringing it under subjection. It would only apply without limitation in the absence of an existing limiting provision, serving as, and overriding authority. In other words, and in its present position, it could be put in a second place.
The phrase “subject to” has been well expatiated in the decision of N. D. I. C. v Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) p.107 at 183 wherein their Lordships of the apex court per Uwaifo JSC had this to say:-
“The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by provided that or provided; answerable for. See Blacks Law Dictionary 6th, Edition page 1425. It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso. See Oke v Oke (1974) 1 NWLR (Pt. 1) p.443 at 450.
It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. See LSDPC Foreign Finance Corporation (1987) 1 NWLR (Pt.50) p.431 at 461, Agua Ltd v Ondo State Sports Council (1988) 4 NWLR (Pt. 91) p.622 at 655.
The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment so that it render the provisions to which it is subject. conditional upon compliances with or adherence to what is prescribed in the provision referred to.”
It follows from the authority therefore that any interpretation which seeks to exclude the subjecting nature, would serve to underrate the phrase “subject to”; which intension is to place a limitation there on the section.
By the use of the phrase “subject to the provision of this constitution” in section 251 (1) (q) therefore, same had, in the spirit of the case of N.D.I.C. v Okem Ent. Ltd. supra, subjected the interpretative jurisdiction of the Federal High Court to the provisions of the Constitution. The power to interpret must first be vested therein as a pre-requisite to the jurisdictional, exercise over the subject matter the corollary would however amount to putting the cart before the horse.
The learned senior counsel for the appellant sought to interpret the opening words of S.251 of the 1999 Constitution as ascribing an unfettered interpretative jurisdiction on Federal High Court, of any provision of the 1999 Constitution. Great emphasis and heavy weather were therefore placed on the phrase “Notwithstanding anything to the contrary contained in this constitution…” what therefore is the meaning of the phrase “anything to the contrary contained in this constitution…..”
With the greatest respect to the learned senior counsel to the appellant, the phrase in my humble opinion operates to strengthen the subjective nature of the Constitutional Interpretative power of the Federal High Court in relation to the Constitution, which is the groundnum. For a clearer understanding, the interpretation of Section 285(1) (b) would serve to throw more light.
The sub-section reproduced states:-
“(I) There shall be established for the Federation one or more election tribunals to be known as the National 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. ……
b. The term of office of any person under this constitution has ceased;”
Per the interpretational provision of -section 251(1) (q) of the Constitution supra, same have been made subject to the foregoing section 285, (1) (b) of the constitution which is vested with the original jurisdiction to hear and determine, to the exclusion of any court or tribunal, petitions relating to whether the term of office of any person under this constitution has ceased. As rightly submitted by the learned 2nd and 3rd respondents counsel therefore and deducing from the nature of the reliefs sought by the appellant, I also endorse the submissions that the jurisdiction to entertain the reliefs has been vested in the National Assembly Election Petition Tribunal and not the Federal High Court. This I hold as it is in consonance with the provision of section 239 of the same constitution which provision gives the court of Appeal an exclusive original jurisdiction to hear and determine any question as to whether:-
“a) any person has been validly elected to the office of President or Vice President under this Constitution……
b) the term of office of President or Vice President has ceased, or
c) the office of President or Vice President has become vacant ………. ”
In other words and with the express provision given exclusive jurisdiction to the Court of Appeal to determine whether the tenure of office of the President or Vice President has ceased, the absence of similar provision vested in the Federal High Court has impliedly negates such power given it. The authority of Ehuwa v Ondo State 1 NED &, 3 Ors. (2006) 11-12 SC 102 at 109 is in point where the maxim expression unius exclusio alterious, applies that is to say, the express, mention of thing excludes the other. See Major & Co. Ltd. v Schroeder (1992) 2 NWLR (Pt. 101) p.1.
On the same principle is another related authority of Enagi v Inuwa (1992) 3 NWLR (Pt.231) 548 at 565 wherein this court also had the following to say:-
“The law is settled that where a particular Tribunal has been specifically assigned by law to determine a question, it is not the business of another tribunal which lacks express powers to determine such questions to venture into the determination of the question.”
In further determining the scope of the jurisdiction created by statute where the issue of tenure is concerned, section 285 ought to be read together with section 184. While the former confers exclusive jurisdiction on the National Assembly Election Petition Tribunal to determine the question whether the term of office of a Governor has expired or ceased, section 184 gives a clear view of section 285. In other words, that the responsibility lies on the Election Petition Tribunal; and thus expending the purport and scope of section 285 to the effect that issue, bordering on the tenure of the office of the governor is outside the contemplation.
With the combined effect of sections 184 and 285 therefore, it is obvious that section 251 (1) (q) of the Constitution, contrary to the contention of the learned appellant’s counsel with the greatest respect, does not in any way either expressly or impliedly cater for the jurisdiction of the Federal High Court on electoral matters. A relevant decision in support is the unreported recent Supreme Court Authority of ANPP v. The Returning Officer Abia State & Ors. SC 78 (2005 delivered on 22nd February, 2007, wherein the apex court and the Court of Appeal have held that the Federal High Court’s jurisdiction is ousted where the subject matter of the action is an election matter and that the jurisdiction cannot be expanded by way of a careful phrasing of the reliefs by the appellant. Same principle was also arrived at by this court in the case of ANPP v R. O. A S. S. D. (2005) 6 NWLR (pt. 920), 140 at 149; In Ngige v Nwachukwu (2005) 2 NWLR (Pt. 909), 123 at 147 this court had this to say:-
“Under section 285 (1) of the 1999 constitution the High Court of a State lacks jurisdiction to entertain any suit for the determination of the question whether the term of office of the Governor of Anambra State had ceased.”
Same principle was also applied in Ogboru v Ibori (2005) 13 NWLR (pt.942) 319. By ascribing jurisdiction to the Federal High Court, is, to imply that section 251 (1) has residual jurisdiction on electoral matters akin to the High Court’s general jurisdiction for any matter not exclusively assigned to another specialized court. If this were the intention of the law maker, same would have been mentioned amidst the expressly defined exclusive preserve of the Federal high Court. It is too late now in the day to either smuggle in or widen the scope of the jurisdiction.
His Lordship Niki Tobi JSC in the case of ANPP v R.O.A.S.S.D. (2005) 6 NWLR (Pt. 92Il) 140 at 149 made the following pronouncement wherein he said,
“…in my humble view, the Federal High Court lacks jurisdiction to entertain the appellant’s suit and the Court of Appeal was correct in so holding. A relief of certiorari smuggled into this matter cannot change the character of the matter as an election matter clearly belongs to the appropriate Election Tribunal.
Section 285 of the Constitution is clear on this.”
Further still and in the same case their Lordships of the apex court continued and said:-
“The subject matter of a claim is material in determining the jurisdiction of the court. See Onuora v KRPC (2005) 6 NWLR (Pt.921) 393.
The subject matter of the instant case is an electoral matter regardless of the guise under which the plaintiff has couched his claim. It is not a matter for any High Court whatsoever…..”
In the ANPP case, common law remedies such as writs of Certiorari and Mandamus were sought in a subject matter of an election wherein the court declined competence to grant same. The Supreme Court while dismissing the appeal held that the Federal High Court had no business in granting such remedies on a subject of an election matter. That the proper court ought to be the National Assembly Election Tribunal established for Abia State.
Further still and on the question of jurisdiction the pronouncement laid down in Enagi v Inuwa (1992.) 3 NWLR (Pt. 231), 548 at 565 is relevant wherein this court said:-
“The Law is settled that where a particular tribunal has been specifically assigned by law to determine a question, it is not the business of another tribunal which lacks express powers to determine such questions to venture into the determination of the questions.”
From the tacit deductive conclusion arrived at in the ANPP case it is apparent that the effectual applicability of sections 285 and 184 gives an unfettered and absolute jurisdiction to the Election Tribunal on election matters. In other words, the Federal High Court in the circumstance was in order in declining jurisdiction as the subject matter of the appellant’s originating summons is an election matter within the exclusive reserved jurisdiction of the National Assembly Election Tribunal. In the case of Abacha v Federal Republic of Nigeria (2006) 4 NWLR (pt.970) 239 at 292 for instance, this court had this to say:-
“Where a statute is clear and unambiguous, the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, the court of law has no jurisdiction to re write a statute to suit the purpose of one of the parties or both parties in which case the intention of the law maker is thrown overboard and the court changes places with the law maker and that would not do at all; that would be against the doctrine of separation of powers entrenched in the Constitution.”
In the result and on the issue of jurisdiction, the learned trial court in my humble opinion was right in declining same and holding that it is vested in the National Assembly Ejection Tribunal. The issue in the circumstance is therefore resolved against the appellant.
The next issue relates to the question whether or not the appellant had made out a case necessitating any reference to this court under section 295 of the Constitution. Specifically, the appellant’s request for reference was made pursuant to the provision of Section 295(2) of the Constitution which same reproduced states as follows:-
“(2) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court and the court is of opinion that the question involves a substantial question of law, the court may and shall if any party to “the proceedings so requests, refer the question to the Court of Appeal and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
It is paramount from the section that the question that calls for the interpretational reference must have arisen in a proceeding. It is also alimentary to restate that for a proceeding to have a legal force of law; it must have jurisdictional recognition and validity, the absence which same cannot be accorded the status of a proceeding. Where a court for instance lacks jurisdiction, its entire purported proceedings including any judgment or orders would be a nullity. Plethoras of authorities are well restated on this principle. Suffice to mention however the case of Attorney General Kano State v Attorney General of the Federation (2007) 6 NWLR (pt.1029) p.164;
also the celebrated case of Madukolu v Nkemdilim (1962) 2 SC NLR 341 where three essential ingredients have been elicited and well enunciated as prerequisites to a competent constitution of a court, to have jurisdiction.
(a) “It is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another; and
(b) the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the court from exercising its jurisdiction; and
(c) the case comes from the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Sub-section (b) is very relevant to the issue under consideration.
It is also trite as earlier stated that the statement of claim determines whether or not a court has jurisdiction to entertain any suit or matter. See Adeyemi v Opeyori (1976) 9-10 SC 31; Attorney General Anambra State v Attorney General of the Federation (1993) 6 NWLR (pt.302) 692.
It is also elementary that once there is a defect in competence, it is fatal as the proceedings would be rendered a nullity. See Ojo-Ajao v Alao (1986) 5 NWLR (pt. 45) 802; where a court therefore has no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility, see Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 423.
It is not in controversy that the subject matter in this case as disclosed by the originating summons and the reliefs prayed for by the appellant relates to the duration of tenure of office and therefore calls for the interpretation of section 180(2) of the Constitution of the Federal Republic of Nigeria 1999.
With the earlier interpretation arrived at sections 184 and 285(1) (2) of the 1999 Constitution supra it is also clear that the Electoral Tribunal has an exclusive and original jurisdiction on issues relating or bordering on electoral matter. The mere fact therefore that a federal agency is involved in a matter does not conclusively vest the Federal High Court automatically with jurisdiction. This I say again because, it is the subject matter of the action that is crucial. See Onuora v KRPC under reference supra.
In the absence of the lower court seized of the subject matter on account of jurisdiction, it does not also have the power of reference under the said section 295(2) of any proceedings on that subject matter. In other words the operation of the said section pre-supposes that the court must be seized of the matter and therefore has jurisdiction. Furthermore, the question ought also to have been raised in such a situational proceeding.
The learned trial judge refused to refer the questions to this court on the deduction that they had not yet arisen from the proceedings with the originating summons yet to commence. That notwithstanding, he was however bereft of any jurisdiction in the matter for all purposes and intent whatsoever. In other words, the court was placed in a state of complete helplessness and the effectual consequential expectation was to surrender or hands off. There was no basis or foundation for the reference in the absence of jurisdiction. With the greatest respect to the learned senior counsel for the appellant therefore, the court below was properly in order in refusing to formulate questions for reference in the circumstance. The mock sought to be towed by the said learned senior counsel is an attempt to expand the frontiers of the Statutory/Constitutional jurisdiction of the Federal High Court; which can only be created by statutes. Niki Tobi JSC was for instance very clear in his pronouncement made in ANPP’s case under reference supra wherein he held section 285 clearly vests election matter in the Election Tribunal. As rightly submitted by the learned senior counsel for the 1st respondent therefore, the measure, “is tantamount to smuggling more jurisdiction to the Court of Appeal being also the final arbiter on these matters under the 1999 constitution.” This is apt especially where by the provisions of sections 184, 246 and 285 of the Constitution, the jurisdiction of the Court of Appeal is prescribed by law and the expansion which must not deviate from that allowed by the statutes. The provision on reference is a matter of law, and a change in the law cannot easily come by as a matter of semantic.
The learned trial judge in arriving at his conclusions heavily relied on the Supreme Court decision in the case of Atiku v. Attorney General of the Federation & 5 Others SC 7/2007 delivered on 25th January, 2007. The court in my humble view was on the right track especially wherein it held that the questions have not arisen ”’ex-tempore” from the proceedings.
While the Court of Appeal (as the lower court) in Atiku’s case had original jurisdiction to entertain the matter which was referred to the Supreme Court, the same is not the case in the matter at hand, wherein the subject matter was before the very wrong court, (Federal High Court).
The learned senior counsel for the appellant cited a number of authorities and submitted the error by the lower court in making reference.
Some of such authorities are: – African Newspapers of Nigeria Ltd. v Federal Republic of Nigeria (1985) 2 NWLR (pt. 6) 137, at 156; Rossek v ACB (1993) 8 NWLR (Pt.312) 371; Bamayi v Attorney General of the Federation (2001) 12 NWLR (Pt.727) 468, 7SC (Pt.11) 62 and Federal Republic of Nigeria v lfegwu (2003) 15 NWLR (Pt.842) 113. The succinct deduction of the said authorities is to the effect that where the conditions for reference are satisfied and a party so requests, the court is then under a duty to refer the question. There is however a caveat in the said authorities to the effect that certain conditions must first need be satisfied before reference. The Supreme Court decision of Federal Republic of Nigeria v lfegwu (supra) and upon which the learned senior counsel for the appellant greatly relied, restates the conditions which must exist before a reference can be made under section 295(2) of the Constitution. “First that the question must be as to the interpretation or application of the Constitntion; that such a question must arise in the proceedings connection with an issue before the court making the reference; and finally that the matter for reference must involve a substantial question of law.”
With due respect to the submission made by the learned senior counsel for the appellant,the said authorities cited do not aid his argument.
In the absence of the Federal High Court seized of jurisdiction over the subject matter of the claim, there can be no validation of any handling by the court relating to any aspect of the matter which consequential effect would amount to an exercise in futility and therefore a nullity. See Inakoju v Adeleke supra, where it was held that “…….. If the court has no jurisdiction to hear the case, the proceedings are and remain a nullity abinito, however well conducted and brilliantly decided they might be, as a defect in competence is not intrinsic but rather extrinsic, to the entire adjudication.” The three laid down conditions necessary for reference would be of relevance if and only if the lower court had jurisdiction. The citation and submissions by the learned appellant’s senior do not therefore hold any ground. The said issue is therefore also resolved against the appellant.
The last issue relates to the merit of the appellant’s claim and whether or not this court can be called upon to invoice section 16 of the Court of Appeal Act and to deal with the matter. The said section in part says:-
“The Court of Appeal ……
shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part or….. ”
In the case of Inakoju v Adeleke supra at pages 732 Oguntade JSC (while dissenting as to what consequential orders to make) had this to say on the limited power conferred on Court of Appeal by section 16, of the Act
“The side notes to section 16 of the Court of Appeal Act are: “General Powers of the Court of Appeal. They are not jurisdiction of the Court of Appeal. Section 16 is clearly incapable of conferring a new original jurisdiction on the Court of Appeal. It only states the points which the Court of Appeal can exercise in accordance with the right of appeal under the Constitution of Nigeria.”
It denotes therefore that what section 16 of the Court of Appeal Act donated to this court are powers not jurisdiction. The confirmation of this is more sure and strengthened in the light of Order 3 rule 3 of the Rules of this Court wherein:-
“All appeals shall be by way of rehearing ….”
This presupposes that the only power given to this court in respect of appeals is to rehear the matter after having been heard by the lower court; which no such hearing by that court could have been valid in the absence of a jurisdiction conferred upon it by statute. More so where grounds of appeal are premised upon the issues joined and argued by the parties in the court below and upon which the said court arrives at a decision. Section 16 cannot therefore operate independently of the lower court. The source of its operative power is derived from the jurisdictional competence of that court.
In other words, where the lower court lacks jurisdiction, section 16 becomes inoperative and impotent. To do otherwise would certainly amount to ascribing new original jurisdiction to the Court of Appeal and this cannot certainly be the intention of the law maker. His Lordships Oguntade JSC again in Inakoju’s case under reference supra further said thus on the powers of Section 16 that:-
“It cannot be construed in a manner as would bring it in conflict with the 1999 Constitution. Section 16 in my humble view only gives seemingly wide powers to enable the court exhaust, finally all the issues arising out of the particular appeal brought before it as revealed in the notice of appeal by which the appeal was brought and the issues arising there from for determination…. It is erroneous to construe section 16 of the Court of Appeal Act as giving a new original jurisdiction to the Court of Appeal. To do so would render it inconsistent with the 1999 Constitution and render it void.”
Certain conditions precedent must therefore be met in order to invoke the powers of section 16 of the Act and these are:-
1) The lower court must have jurisdiction to entertain the case before the Court of Appeal can entertain same.
2) The real issue disclosed by the claim of the appellant at the lower court is distilled from the grounds of appeal.
3) Necessary materials must be available to the court for consideration.
4) The need for expediency in order to meet the ends of justice.
5) Hardship when the matter is returned to the lower court.
Without having to unnecessarily over flog the issue, section 16 can only be invoked where the lower court has jurisdiction.Conditions 2-5 reproduced supra have their driving force from the 1st condition in the absence which they would be inoperative. The conditional atmosphere necessary for the invocation of section 16 are not met in the case at hand. It does not therefore lie within the parameters of this court to invoke Section 16 of the Court of Appeal Act to determine the merit of this case. That is certainly not within its constitutional jurisdiction contrary to the submission of the learned senior counsel for the appellant.
It is not for this court to dwell into that arena. In the same vein and like the Federal High Court, the subject matter is also “a no go area” for this court, which must also resist the temptation of an ascribed original jurisdiction without constitutional force of law.
Finally I would state that the court has the duty to maintain law and order by upholding the tenants of the Constitution. It should not therefore be seen to engage in a confrontational exercise with the very constitution that brought it into being. Suffices to say that the court as a watchdog, serves an umpire to uphold justice and the law. It should therefore be seen in the exercise of such within the confines of the statutes setting up its parameters of jurisdiction. To do otherwise would amount to a sabotage of the constitution.
On the totality of the appeal before us I also agree with the comprehensive and well reasoned conclusions arrived at the lead judgment of my learned brother Fabiyi JCA that this appeal lacks merit and is hereby accordingly dismissed, while t he decision 0 f the lower court is upheld. I also abide by the orders made as to costs.
STANLEY SHENKO ALAGOA, J.C.A: I read in draft the leading judgment of my Brother John Afolabi Fabiyi (JCA) just delivered and I agree with the conclusion reached. I however want to chip in this little bit of mine. This is an appeal by the Appellant as plaintiff against the judgment of the Federal High Court; Enugu Division delivered by Faji J.on the 30th march 2007 in Suit No. FHC/EN/CS/27/2007/ MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION. The facts relevant to and leading to this appeal are that by an originating summons dated 12th February 2007 and filed same day, the Appellant as plaintiff prayed the Federal High Court for the determination of the following questions –
1. Whether having regard to section 180(2) (a) of the 1999 Nigerian Constitution the tenure of a Governor first elected as Governor begins to run when he took the oath of allegiance and oath of office.
2. Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took oath of allegiance and oath of officer on the 17th March 2006 and has not served his four year tenure under section 180(2) (a) of the 1999 Constitution.
The Appellant then sought the following orders from the Federal High Court –
1. A declaration that the four year tenure of office of the Plaintiff as the Governor of Anambra State began to run from the date he took the oath of allegiance and oath of office being the 17th March 2006.
2. A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship election in Anambra State in 2007 in so far as the Plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took the oath of allegiance and oath of office on the 17th March 2006.
3. Injunction restraining the Defendants by themselves, their agents, servants, assigns and privies or howsoever from in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4(four) years from the 17th day of March 2006 when the Plaintiffs tenure of office will expire.
The originating summons was supported by an affidavit primarily to the effect that the Appellant having emerged victorious over Dr. Chirs Ngige at both the Election Petition Tribunal and the Court of Appeal with respect to the election for the Governorship of Anambra State conducted on the 19th April 2003, INEC’s declaration of Dr. Ngige having been upturned, the Appellant was on the 17th March 2006 sworn in as the Governor of Anambra State and that by virtue of section 180(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria his four year tenure of office commenced from the date he was sworn in being 17th March 2006 but despite that fact the Independent National Electoral Commission scheduled the Governorship election throughout the state of the Federation including Anambra State. The 1st Respondent who was the original sole defendant filed a Memorandum of Conditional Appearance accompanied by a Notice of Preliminary Objection contending inter alia that the tenure of the Plaintiff now Appellant, as the Governor of Anambra State of Nigeria ceases when his successor in office takes the oath of the office in 2007 upon election as provided by section 180(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 and also that the Honourable court lacks jurisdiction to entertain and/or determine questions as to whether the tenure of office of a Governor or Deputy Governor has ceased or when it will cease. In addition to the Notice of Preliminary Objection the 1st Defendant filed a counter affidavit in opposition to the originating summons contending that the Appellant as well as the others had filed for nomination by their respective political parties for gubernatorial election for the seat of Governor of Anambra State which shall become vacant in May 2007 and that it will lead to chaos for the states within the Federal structure to hold such election on different dates. By a motion on notice dated the 28th February 2007 the Appellant prayed the Federal High Court to refer certain questions which arose in the proceedings to the Court of Appeal pursuant to section 295 (2) of the 1999 Constitution of the Federal Republic of Nigeria namely-
I. Whether having regard to section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 the Federal High Court has jurisdiction to entertain this case which in the main calls for the interpretation of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria 1999?
2. Whether the Plaintiff is a “person first elected as Governor” within the meaning of section 180(2) (a) of the Constitution of the Federal Republic of Nigeria?
3. In view of section 180(2) (a) of the Constitution of the Federal Republic of Nigeria when did the tenure of office of the Plaintiff begin to run having regard to the fact as admitted by both parties that the Plaintiff took the oath of allegiance and Oath of office as Governor of Anambra State on the 17th March 2006.
4. Having regard to the fact that the Plaintiff took the oath of allegiance and the oath of office on the 17th March 2006, is the Plaintiff not entitled to enjoy the full tenure of 4 years for the office of Governor as prescribed by section 180(2)(a) of the Constitution of the Federal Republic of Nigeria 1999?
5. Can the Defendant lawfully abridge the tenure of four years prescribed by the Constitution of the Federal Republic of Nigeria 1999 for a person such as the Plaintiff elected as Governor of a state by holding election for the office of Governor for the State in the middle of Plaintiffs tenure? In other words can the Defendant lawfully conduct a Governorship election in Anambra State in April 2007 notwithstanding the fact that the Plaintiff took the oath of allegiance and oath of office only on the 17th March 2006?
6. On a proper interpretation of section 180 (2) (a) must election be held in all the 36 states of the Federal Republic of Nigeria on the same date or at the same period irrespective of the date the Governor of a state was sworn and regardless of the provisions of section 180 (2) (a) of the 1999 Constitution of Nigeria?
7. Has the Plaintiff waived his right to continue to remain in office as the Governor of Anambra State for the full tenure of four years when Plaintiff is not a candidate recognized by the Defendant in the 2007 general election into the gubernatorial election in Anambra State.
Applications for joinder by the 2nd and 3rd and later the 4th – 8th Respondents were taken and granted by the court. We shall see later that the 8th Respondent subsequently filed a Notice of Withdrawal from the appeal.
Arguments were canvassed on these issues at the end of which the trial Judge held inter alia, “The Federal High Court lacked jurisdiction to entertain the originating summons it being based on the determination of tenure of office having regard to sections 285(1) and (2) and 184 of the 1999 Constitution of the Federal Republic of Nigeria. A party should not be allowed to prosecute his case in bits and pieces. That would be an abuse of the court process.
This is moreso in this case which in my view is tied to the election of 2003 and the petition that flowed therefrom. I am thus of the view, that this situation did occur to the Plaintiff at the tribunal or at the Court of Appeal but he chose not to sort it out there once and for all. Not having so raised the matter he cannot do so as it would amount to litigating in instilments. That is against public. In any event as I said, this matter being an election matter ought to have been resolved at the election tribunal. If that had been done, there would have been no need to apply for an injunction against the 1st defendant herein INCE – as INEC was a party to the election tribunal. The subject matter of the instant case is an electoral matter regardless of the guise under which the Plaintiff has concealed his claim. It is not a not a matter of any High Court whatsoever. The effect of the judgment of the tribunal? Yes it is that plaintiff is Governor of Anambra State but in the circumstances of the matter – from when? This matter should have been put before the tribunal as an ancillary relief and in the exercise of its inherent jurisdiction to grant orders that will give effect to its judgment”. The court also declined to refer the matter to the Court of Appeal. This is the basis for this appeal. The Notice of Appeal dated 18th April 2007 and filed same day comprises four grounds spelt hereunder as follows –
GROUND 1: – The learned trial Judge misdirected himself in law and occasioned a grave miscarriage of justice when in declining jurisdiction to adjudicate on the Appellant’s originating summons held thus:
“The issue of when Plaintiffs tenure would cease is the subject matter of this instant action. The Plaintiff ought to have asked the tribunal to declare by way of consequential relief or ancillary order when his tenure would commence I am of the further view that this ancillary relief could also have been sought at the Court of Appeal under section 16 of the Court of Appeal Act when this is not an issue of tenure in vacuo. It is an issue tied and bound to the election petition a party should not be allowed to prosecute his case in bits and pieces. That would be an abuse of court process. This is more so in this case which in my view is tied to the election of 2003 and the petition that flowed therefrom…not having so raised matter he cannot now do so as it would amount to litigating in installments.
GROUND 2: – The learned trial Judge misdirected himself in law and occasioned a gross miscarriage of justice when he held as follows – “I am of the view that the jurisdiction to determine who occupies the seat of Governor must in the present circumstance to be meaningful – include jurisdiction to determine when such an order takes effect. This is an order which the tribunal ought to have been moved to make but which unfortunately it was not so moved. I therefore with due respect place reliance on the Supreme Court decision in NPP V. RETURNING OFFICER ABIA STATE (Supra). I find that this court lacks jurisdiction”
GROUND 3: – The learned trial Judge erred in law which resulted in gross miscarriage of justice when he dismissed Appellant’s application for reference to the Court of Appeal.
GROUND 4: – The learned trial Judge who had jurisdiction to entertain the originating summons erred in law in not determining the merits of the originating summons after dismissing the application for reference.
Arising from these Grounds the Appellant on page 3 of the Appellant’s Brief of Argument dated 18th April 2007 which was adopted and relied upon by his counsel Dr. Onyechi Ikpeazu SAN formulated the following four issues for the determination of the Court of Appeal viz –
(i) Whether the learned trial Judge was correct when in declining jurisdiction to adjudicate on the Appellant’s originating summons, he held that the determination of the commencement of the Appellant’s tenure of office ought to have been raised as an ancillary matter at the Election tribunal and in the resultant appeal from the judgment of the said tribunal.
(ii) Whether the learned trial Judge was correct when he declined jurisdiction and held that the prayers in the Appellant’s originating summons were matters within the jurisdiction of the election tribunal relying on the decision in ANPP V. RETURNING OFFICER ABIA STATE SC 78/2005 delivered on the 22nd February 2007.
(iii) Whether the learned trial Judge was right in refusing either to refer the questions framed or to formulate questions for reference to the Court of Appeal.
(iv) Whether the Appellant who is the Governor of Anambra State shall hold office for four years from the date he took the oath of allegiance and oath of office having regard to sections 180(2)(a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.
Preliminary Objections were raised by the 1st, 4th & 5th and the 8th Respondents. The 8th Respondent filed a Notice of Withdrawal dated and filed on the 9th May 2007 to wholly and entirely withdraw his Brief of Argument and Preliminary Objection and this prayer was granted by this court on the 9th May 2007. The 4th & 5th Respondents adopted the preliminary objection of the 1st Respondent as well as the accompanying written address contained in the 1st Respondent’s Brief of Argument as if same were their own. The Arguments of the 1st Respondent on the preliminary objection are contained on pages 7-14 of the 1st Respondent’s Brief which was deemed filed and served on the 9th May 2007 following application on Notice for enlargement of time and to deem the 1st Respondent’s Brief of Argument as duly filed and served. The said application being unopposed was granted as prayed, and the said Brief was adopted and relied on by Counsel for the 1st Respondent Chief Anthony 1. Idigbe SAN. It is important to note that before the incorporation of argument on the preliminary objection in his Brief of Argument the 1st Respondent had filed a separate Notice of preliminary objection dated 3rd May 2007 and filed on the 4th May 2007 pursuant to Order 3 Rule 15 of the Court of Appeal Rules 1981 as amended and under the inherent jurisdiction of this court. The preliminary objection is with respect to Ground IV of the Notice of Appeal and issue IV distilled from the said Ground IV. These the Respondents want struck out being incompetent. The said issue IV is amply discussed on pages 68-97 of the Appellant’s Brief of Argument and the oral submission of Counsel and it is as to whether the Appellant who is the Governor of Anambra State shall hold office for four years from the date he took the oath of allegiance and oath of office having regard to sections 180(2) (a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.
The 1st Respondent’s Notice of Preliminary Objection reads as follows –
TAKE NOTICE that at the hearing of this appeal herein or such other time that is convenient to this Honourable court, the 1st Respondent/Applicant shall contend by way of preliminary objection that ground IV of the grounds of appeal and issue iv of the issues for determination formulated in the Appellant’s Brief of Argument are incompetent and ought to be struck out.
GROUNDS
TAKE FURTHER NOTICE that the grounds of the preliminary objection are as follows –
1. The point whether the application argued before the lower court ought to be taken with the originating summons was not canvassed by the Appellant in the lower court.
2. Leave of the Federal High Court or this Honourable court is required to raise fresh point not taken in the lower court and none was sought or obtained.
3. Reliefs (iii) to (viii) contained in the Notice of Appeal are incumbent and ought to be struck out.
GROUNDS
(a) There are no grounds of appeal to support consideration of the originating summons under section 16 of the Court of Appeal Act.
(b) The Court of Appeal lacks original jurisdiction over the reliefs sought in reliefs IV to (viii) of the Notice of Appeal.
(c) No issue for determination is properly formulated before this Honourable court such as to ground the reliefs complained of.
Issue IV of Ground IV has already been stated here and needs no restatement. The Appellant has urged this court to invoke section 16 of the Court of Appeal Act and deal with this issue. The said section 16 of the Court of Appeal Act provides as follows,
“The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the
court below to inquire into and certify its findings or any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court to in the case of an appeal from the court below in that court’s appellate jurisdiction order the case to be reheard by a court of competent jurisdiction.” Appellant has contended that a calm reading of section 16 of the Court of Appeal Act shows that it gives the Court of Appeal enormous power to deal with any case before it on appeal and this power includes the jurisdiction of a Court of first instance. It confers wide powers on the Court of Appeal to enable it make orders which the High Court would have made in a matter. Appellant went further to say that the Court of Appeal does not exercise the power to rehear a case on every occasion. The Court of Appeal is expected to do so only where the justice of the case demands that the power should be exercised. Reliance was placed on INAKOJU V. ADELEKE (2007) 4 NWLR PART 1035 page 423.
Appellant further submitted that a community reading of the decisions in the following cases of OLUTOLA V. UNILORIN (2004) 18 NWLR PART 416 at 469 paragraphs B-E; INAKOJU V. ADELEKE (2007) 4 NWLR PART 1025 page 423 at pages 613-614 paragraphs F-G and at 691-692 paragraphs E-D; FIAYEYE V. OTAPO (1995) 3 NWLR PART 381 shows that certain fundamental conditions must be met before the Court of Appeal can invoke the power conferred on it by section 16 of the Act. Such conditions Appellant went on to submit are determined case by case without a general proposition. Counsel referred in the Appellant’s Brief to A.G. OF ANAMBRA STATE V. OKEKE (2002) 12 NWLR PART 782 pages 575 at 606-607. These conditions Appellant further submitted include the following:
(a) The trial court must have jurisdiction to entertain the case before the Court of Appeal can exercise its powers under section 16 of the Act to determine the same.
(b) The real issue in the appeal for which the court is called upon to invoke its powers under section 16 of its Act must be clearly donated by the ground or grounds of appeal.
(c) Necessary materials to enable the Court of Appeal consider and determine the case must be available.
(d) The interest of justice must be served by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing.
(e) The hardship such an order of remittance would cause on either or both parties.
On his contention that the trial court must have jurisdiction to entertain the case as constituted, Appellant adopted his argument under issue I and urged this court to hold that the trial court has ample jurisdiction under section 251 (1) (p) & (q) of the 1999 Constitution to entertain the suit and that the first condition precedent for the invocation of section 16 of the Court of Appeal Act has been duly satisfied. On the question as to whether the real issue for which the Court of Appeal is being called upon to adjudicate on has been clearly donated by the ground or grounds of appeal, Appellant submitted that the real issues to be determined in the originating summons and as donated by ground IV of the Grounds of Appeal are as follows –
(a) Whether having regard to section 180(2) (a) of the 1999 Constitution, the tenure of office of a Governor first elected as Governor begins to run when he takes the oath of allegiance and oath of office.
(b) Whether the Federal Government of Nigeria through the defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took oath of allegiance and oath of office on 17th March 2006 for four year tenure as provided under section 180(2) (a) of the 1999 Constitution.
Appellant submitted that what calls for determination is the interpretation to be given to section 180(2) (a) of the 1999 Constitution and that it is appropriate for the Court of Appeal to resolve the entire case under section 16 of the Court of Appeal Act especially as time is of the essence.
Appellant contended that the facts in this case are similar to the facts in ADELEKE V. O.S.H.A. (2006) 16 NWLR PART 1006, page 608 at 642 where the Court of Appeal invoked the provision of section 16 of the Court of Appeal Act and resolved the entire case there and then and which position was commended by the Supreme Court on appeal in INAKOJU V. ADELEKE (2007) 4 NWLR PART 1025 page 423 at 616. Appellant therefore urged this court to hold that the second condition precedent for the invocation of section 16 of the Court Appeal Act has been satisfied and do the same thing it did in ADELEKE V. O.S.H.A. (Supra).
On the question as to the availability of necessary materials to enable the Court of Appeal to determine the entire case once and for all, Appellant submitted that all the materials needed by the Court of Appeal to step into the shoes of the trial court and determine the entire case are already before the court such as the originating summons, supporting affidavit, further affidavit wherein the Appellant’s oath of allegiance and oath of office was exhibited, notice of preliminary objection by the 1st Respondent etc. It is therefore safe, Appellant submitted, to conclude that issues have been fully joined in the substantive case and that the substantive case was indeed ripe for hearing before the learned trial court declined jurisdiction to entertain same and struck it out. It was contended by the Appellant that the law is now settled that when once there are sufficient materials as itemized earlier, the Court of Appeal can invoke section 16 of the Court of Appeal Act and determine the entire case once and for all. The case of INAKOJU V. ADELEKE (Supra) was relied upon. The Appellant therefore urged the court to hold that the third condition precedent for the invocation of the Court of Appeal Act had been satisfied. The fourth and fifth conditions
precedent for the invocation of the Court of Appeal Act are that the interest of justice must be served by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order or remittance would cause on either or both parties.
Appellant submitted that remitting this back to the trial court would cause delay in view of the fact that time is of the essence. The Court of Appeal was therefore urged to invoke section 16 of the Court of Appeal Act and deal with the matter.
The 1st Respondent on its part and with respect to the first condition precedent on jurisdiction submitted that jurisdiction is ascertainable from the claim of the Appellant only and it is trite that the subject matter of the action shall determine jurisdiction. Reference was made to FGN V. OSHIOMOLE (2004) 3 NWLR PART 860 page 305. ONUORAH V. KRPC (2005) 6 NWLR PART 921 page 393 at 397. 1st Respondent submitted that the subject matter in this case as disclosed by the originating Summons and the reliefs prayed for by the Appellant is the tenure of office of the Appellant. In other words what the Appellant as asking the Federal High Court to determine is the issue of tenure of the Appellant as Governor.
Is the tenure from 2003-2007 or is it from 2006-2010? Respondent went on to state that upon a review of Sections 184 and 285(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 it is clear that the election tribunal has exclusive and original jurisdiction on issues bordering on electoral matters and in this case Governorship elections. By virtue of section 285(2) of the Constitution of the Federal Republic of Nigerian 1999, one or more of such Governorship election tribunals is established in each of the States of the Federation to adjudicate on electoral matters. Reference was made to OGBORU V. IBORI (2005) 13 NWLR (Part 942) 319 at 360. Respondent further submitted that both the Court of Appeal and the Supreme Court have variously held that the federal High Court’s jurisdiction is ousted where the subject matter of the action is an election matter and the jurisdiction of that Court cannot be expanded by rephrasing of the reliefs by the Appellant. Reliance was placed on the unreported Supreme Court decision of ANPP V. THE RETURNING OFFICER ABIA STATE & ORS. And also the following cases – ANPP V. R.O.A.S.S.D. (2005) 6 NWLR PART 920, Page 140 at 149; NGIGE V. NWACHUKWU (2005) 2 NWLR PART 909, Page 123 at 132; OGHORU V. IBORI (2005) 13 NWLR PART 942, Page 319 at Page 355. Respondent submitted that Sections 184 and 285(1) and (2) of the 1999 Nigerian Constitution which creates an exclusive jurisdiction on electoral and tenure matters on Election tribunal shows clearly that the issue raised in the Appellant’s claim is an issue bordering on the tenure of office of the Appellant. Respondent relied on the case of ENAGI V. INUWA (1992) 3 NWLR PART 231, Page 548 at 565 where the Court of Appeal had the following to say – “The law is settled that where a particular tribunal has been specifically assigned by law to determine a question, it is not the business of another tribunal which lacks express powers to determine such questions to venture into the determination of the questions.” The constitution gives the Court of Appeal appellate and final jurisdiction in electoral matters by its Sections 246 and 287(2) see the case of OGBORU V. IBORI (2005) 13 NWLR PART 942, 319 at 360.
On the second condition precedent which is that the real issue in the appeal for which the Court of Appeal is called to invoke its powers under Section 16 of the Court of Appeal Act must be clearly donated by the ground or grounds of appeal, Respondent submitted that ground IV does not in any way relate to the decision of the trial Federal High Court nor can any issue be said to arise from such ground. Reliance was placed on the following cases -GAAMSTAC V. FCDA (1988) 4 NWLR PART 88 Page 296; EMEGHANA V. HMB IMO STATE (1987) 2 NWLR PART 56, Page 230. Respondent argued that the isolated reading of Section 251 (1) of the Constitution and the general introductory statement, ”Notwithstanding anything to the contrary in the Constitution” cannot be read literally so as to subvert express jurisdiction granted by the Constitutional legislator as this will go against well entrenched governing principles of Constitutional interpretation. The following cases were relied upon – ABIOYE V. YAKUBU (1991) 5 NWLR PART 190, Page 130; AG ABIA STATE V. A.G. FEDERATION (20060 16 NWLR PART 1005, Page 265; ADELEKE V. OSHA (2006) 16 NWLR PART 1006, Page 608; AG BENDEL STATE V. AG FEDERATION (1982) 3 NCLR 1. It will also be counter to the paramount rule of Construction of statute that the express mention of a thing excludes the other. Reliance was placed on MAJOR & CO. LTD. V. SCHROEDER (1992) 2 NWLR PART 101, 1.
With respect to condition precedent three which is that necessary materials to enable the Court of Appeal to consider and determine the case must be available, the Respondents submitted that assuming the lower Court was vested with jurisdiction, which is clearly not the case; the Appellant has not furnished sufficient materials to the High Court to exercise its jurisdiction. The Appellant has not supplied the High Court either with the election tribunal judgment or the Court of Appeal’s case upon which he founds his right in the instant action. This would have assisted the Court in ascertaining the scope of his right as disclosed by the decisions of the Courts. Moreover no arguments were taken on the issue in the High Court as only the motion for reference and the preliminary objection filed by the parties during the tendency of the case was decided upon as a result of which the opinion of the High Court is not available to the Court of Appeal.
Respondents therefore urged the Court to uphold the preliminary objection and strike out ground IV of the Notice of Appeal and issue IV of the Brief of Argument.
Appellant in his reply has submitted that the general purport of the powers of the Court of Appeal under Section 16 of the Court of Appeal Act is to enable that Court exercise all the powers of the Court of first instance and that the Court of Appeal in exercise of its powers under Section 16 of its Act is quite competent to determine the application without a hearing in the high Court. Reliance was placed on AG ANAMBRA STATE V. OKEKE (2002) 12 NWLR (PART 782) 572 at 578. Appellant contended that the real questions in controversy in this appeal are-
(1) The jurisdiction of the Federal High Court to entertain the suit.
(2) The failure of the learned trial Judge to make a reference to the Court of Appeal and
(3) Whether the Court of Appeal in the circumstances can invoke Section 16 of the Court of Appeal Act to determine the Originating Summons which the trial Judge who had jurisdiction failed to determine even though there are sufficient materials to decide the merit of the substantive suit.
Appellant submitted that ground IV is competent and no leave of Court is required to raise it. It is the Appellant’s contention that a ground of appeal may arise out of a ruling or judgment and it may also arise out of failure of a Court to do a particular thing or follow a particular procedure and a complaint that a particular procedure was not followed can still sustain a ground of appeal and render the ruling or judgment liable to be set aside. In such a situation leave of Court is not necessary. Appellant cited AFRIBANK NIG. PLC. V. OSISANYA (2001) 1 NWLR PART 642 Page 598 where it was held that a ground of appeal is any wrong decision, resolution, inference, step taken by the trial Court. Ground 4 therefore cannot amount to a rising a fresh point on appeal, Appellant submitted. See also OBIEGBU V. UNIVERSITY OF ABUJA (2005) 9 NWLR PART 930, Page 310 at 322-323.
According to Appellant the case now before the Court is not an election matter. It is a question of the interpretation of the Constitution. It is a question of the infraction of Sections 180(2) and 185 of the 1999 Constitution just like INAKOJU V. ADELEKE (Supra); ADELEKE V. O.S.H.A. (Supra), BALONWU V. OBI (2007) 5 NWLR PART 1028, 488. Appellant went further to say that any attempt by the 1st Respondent to make the Appellant enjoy a term less than four years from the said date is an infraction of the Constitution for which the Federal High Court has jurisdiction and not the election tribunal. Reliance was placed on OBASANJO V. YUSUF (2004) 9 NWLR (PART 877) 144; ANPP V. AG FED. (2003) 15 NWLR (PART 844) 600; PDP V. INEC (1999) 11 NWLR (PART 626) 200 or (1999) 7 S.C. (PART 2) 30 at 49-50. Clearly, he said, the Federal High Court has jurisdiction to entertain the suit as it is not an election matter and Section 16 of the Court of Appeal Act can be invoked. Appellant submitted that all the conditions required for the invocation of Section 16 had been satisfied and urged this Court to so hold.
Appellant has urged this Court to exercise its power under Section 16 of the Court of Appeal Act and deal with issue IV.
There appears to be no ambiguity as to the criteria that must be met before the court of Appeal can exercise this power. I shall now proceed to take them in the order highlighted by the Appellant. The first criterion or condition precedent is that the Federal High Court must have jurisdiction to deal with the matter. Issue IV makes specific reference to Sections 180(2) (a) and 185 of the Nigerian Constitution 1999. Section 180(2) (a) provides as follows:-
“Subject to the provisions of subsection (1) of this Section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when in the case of a person first elected as Governor under this Constitution he took the Oath of allegiance and Oath of Office.
Subsection (2)(a) is subject to the provisions of sub section (1) which provides as follows-
“(2) Subject to the provisions of this constitution, a person shall hold the office of Governor of a State until-
(a) when his successor in office takes the oath of that office; or
(b) he dies whilst still holding that office
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.”
On the other hand Section 185(1) of the Constitution provides that “A person elected to the office of the Governor of a State shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed to the oath of allegiance and Oath of office prescribed in Constitution.”
All these provisions taken together can only relate to the tenure of the Governor of a State from when he subscribes to the Oath of allegiance and Oath of office prescribed in the Constitution. Having established that these provisions relate to tenure of office of Governor, our next consideration will be to determine whether it is the election tribunal or indeed any other Court that has jurisdiction in such matters.
Recourse must now be had to the provisions of Section 285(1) (b) and (2) of the Constitution. Section 285(1) provides that-
“there shall be established for the federation one or more election tribunals to be known as the National Assembly election tribunal which shall to the exclusion of any Court or tribunal have Original Jurisdiction to hear and determine petitions as to whether
(b) the term of office of any person under this Constitution has ceased.”
285(2) – “there shall be established in each State of the Federation one or more election tribunals to be known as Governorship and Legislative Houses election tribunals 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 or as a member of any legislative house.”
Tied to Section 285 is Section 184 (a) of the Constitution which provides that the National Assembly shall make provisions in respect of –
(a) “persons who may apply to an election tribunal for the determination of any question as to whether
(i) any person has been validly elected to the office of Governor or Deputy Governor.
(ii) the term of office of a Governor or Deputy Governor has ceased or
(iii) the office of Governor or Deputy Governor has ceased.”
All these provisions from a community reading show without any shadow of doubt that it is the election tribunal that has not only original but exclusive jurisdiction to deal with all matters relating to the election and tenure of Governor of a State. The Federal High Court has no such jurisdiction. In the case of ANPP V. THE RETURNING OFFICER ABIA STATE & ORS. SC 78/2005 (unreported) the Supreme Court held that the Federal High Court was right in declining Jurisdiction over an election matter which was clearly and exclusively for determination by the election tribunal. Niki Tobi (JSC) made this observation, “A relief on certiorari smuggled into this matter cannot change the character of the matter as an election matter clearly belongs to the appropriate election tribunal.”
Section 285 of the Constitution is clear on this. This case must be distinguished from ADELEKE’S case (Supra) cited with much relish by the Appellant. In ADELEKE’S Case the Oyo State High Court had said it had no Jurisdiction while the Court of Appeal said that Court had jurisdiction and the Court of appeal went on to deal with the matter under Section 16 of the Court of Appeal Act. In ANPP V. THE RETURNING OFFICER ABIA STATE (Supra) the Federal High Court had no Jurisdiction and so the Court of Appeal also lacked jurisdiction to deal with the matter under Section 16 of its Act. I am of the view therefore that even on the first condition precedent on jurisdiction, the preliminary object has merit and should be and is hereby upheld and ground 4 as well as issue IV are hereby accordingly struck out. With the success of the preliminary objection and the striking out of Ground IV and issue IV, prayers (i) and (ii) of the Reliefs sought in the Notice of Appeal cannot be granted. The other reliefs (iii) – (viii) in so far as they are dependent on the grant of reliefs (i) and (ii) and since they flow from ground IV and issue IV of the Notice of Appeal are incompetent and therefore cannot be granted.
It is for this and the fuller reasons contained in the leading judgment that I also dismiss the appeal. I abide by the Order on costs contained in the leading judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I have been privileged to read in advance the draft of the lead
Judgment of my learned brother, Fabiyi, J.CA. I agree with him entirely that the objection should be sustained. My learned brother has dealt exhaustively and comprehensively with the issues at stake in this Appeal.
I however wish to add a few words.
The facts and circumstances leading to this Appeal have been fully set out in the lead Judgment and so it would serve no useful purpose to re-hash them here. Suffice to say quite briefly by way of introduction that the Appellant, as Plaintiff, approached the Federal High Court Enugu via an action brought by way of an Originating Summons filed on 12th February, 2007. Therein, he sought the determination of the following questions:
1. Whether having regard to Section 180 (2) of the 1999 Constitution, the tenure of office of a Governor first elected as Governor begins to run when he took the Oath of Allegiance and Oath of office.
2. Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took Oath of Allegiance and Oath of Office on 17th March, 2006 and has not served his four year tenure as provided under Section 180 (2) (a) of the 1999 Constitution.
Dependant upon the determination of these questions, the Appellant sought two Declarations and an injunction from the Court.
Initially, this action was initiated only against INEC as the Defendant.
Subsequently however, the 2nd to 8th Respondents were let in on their applications as interested parties, and the Summons was amended to accommodate them. However, the questions for determination and the reliefs sought remained the same. Before hearing in the suit could commence, the 1st Defendant filed a Notice of Preliminary Objection to the hearing of the suit. The objection sought for an order of Court striking out the Originating Summons for lack of jurisdiction and for want of competence. In particular, the 7th ground of objection reads thus:
“7. The Honourable Court lacks jurisdiction to entertain and/or determine questions as to whether the term of office of a Governor or Deputy Governor has ceased or when it will cease.”
Shortly thereafter, the Plaintiff also filed a Motion on Notice wherein he prayed inter alia thus:
“(ii) FURTHER TAKE NOTICE that the Plaintiff/Applicant pursuant to Section 29S (2) of the 1999 Constitution prays the Court to refer the following questions which raise substantial recondite constitutional points of law to the Court of Appeal for determination.
1. Whether having regard to Section 252 (1) of the 1999 Constitution the Federal High Court has jurisdiction to entertain this case which in the main calls for the correct interpretation of Section 180(2) (a) of the 1999 Constitution.
2. In view of Section 180(2) (a) of the 1999 Constitution, when did the tenure of office of the Plaintiff begin to run, having regard to the fact, as admitted by both parties, that the Plaintiff took the oath of allegiance and oath of office as Governor of Anambra State on the 17th March, 2006 … ”
Faced now with the Originating Summons, the Notice of Preliminary Objection and the Motion on Notice for Reference, the Court heard all the parties as represented by their various senior Counsels and other Counsel and agreed on which of the processes should be treated first in order of priority. On the Court’s direction, the Motion for Reference to the Court of Appeal was taken first and the Notice of Preliminary Objection was argued in answer to the Motion for Reference. The learned trial Judge reasoned that since the Court must possess jurisdiction before it can determine whether the circumstances for a Reference have arisen, he would resolve the issue of jurisdiction first. Therefore, at pages 370 to 373 of the printed record, he found that the Federal High Court lacks jurisdiction and he proceeded to strike out the suit. Clearly central to this matter is the issue jurisdiction of the Federal High Court to determine he suit before it. The issue of jurisdiction, being a threshold issue, the earned trial Judge acted quite rightly, in my view, in pronouncing on same in limine before looking into any other issue before the Court.
Dissatisfied by the Ruling of the lower Court on this, the Appellant has appealed to this Court on four grounds. Before hearing in the Appeal could commence, the 151 Respondent filed a Notice of Preliminary objection. Therein, he contends that Ground IV of the Grounds of Appeal and Issue IV of the Issues for determination formulated by the Appellant n the Appellant’s Brief are incompetent and ought to be struck out. The grounds of the objection were as stated therein.
The 4th and 5th Respondents equally filed a Notice of Preliminary objection wherein they contended that the Preliminary Objection filed by the 1st Respondent be taken first. In addition, they adopted the preliminary Objection filed by the 1st Respondent as well as the accompanying written address contained in the 1st Respondent’s Brief of argument as if same were their own. The 8th Respondent also filed a preliminary Objection to the hearing of the Appeal. However, on the date or hearing the Appeal, he filed an application withdrawing all the processes he had filed as he was no longer interested in pursuing the appeal. Same were therefore struck out.
When the Appeal came up for hearing, Chief Iigbe, learned Senior counsel for the Respondent, argued his Preliminary Objection in line with is arguments in the 1st Respondent’s Brief of Argument, particularly at ages 6 to 14 thereof, which he adopted. He also made oral submissions in Court wherein he largely responded to the submissions in the Appellant’s Reply Brief concerning the Preliminary Objection. Mr. Udenze learned Counsel for the 4th and 5th Respondents, also argued his Preliminary Objection by, again adopting essentially, the Preliminary Objection filed by the 1st Respondent and the argument filed thereon as his own. Mr. Okafor, learned Counsel for the 2nd Respondent, Mr. Ezechukwu, learned Counsel for the 3rd Respondent and Mr. Emeka, learned Counsel for the 6th and 7th Respondents all aligned themselves with the submissions of learned senior Counsel for the 1st Respondent in respect of the Preliminary Objection.
Learned Senior Counsel for the 1st Respondent formulated three issues for the determination of the Court thus:
A. Whether the 1st Respondent’s Preliminary Objection ought not to be upheld and the ground and issues on consideration of the Originating Summons not canvassed in the Court below struck out.
B. Whether this is an appropriate case for exercise of the jurisdiction of the Court of Appeal to hear the Originating summons under the provisions of Section 16 of the Court of Appeal Act.
C. Whether this Court is seized with original jurisdiction to grant reliefs (iv) to (viii)of the Notice of Appeal.
I think it pertinent at this stage to set out Ground IV of the Grounds of Appeal complained of. Shorn of its particulars, it states:
GROUND IV ERROR IN LAW
The learned trial Judge who had jurisdiction to entertain the Originating Summons erred in law in not determining the merits of the Originating Summons after dismissing the application for reference.
Issue IV in the Appellant’s Brief of argument, which the Respondents have also asked this Court to strike out for being incompetent, states:
iv. Whether the Appellant who is Governor of Anambra State shall hold office for four years from the date he took the Oath of Allegiance and Oath of Office having regard to Sections 180(2) (a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.
The gist of the Respondents’ submission on this Preliminary Objection is that, from the record of the lower Court, particularly pages 196 to 199 and 364 to 365, the only issues up for consideration before the learned trial Judge were the Appellant’s Motion for Reference and the 1st and 8th Respondents’ Preliminary Objections as to the jurisdiction of the Federal High Court. Proceeding on the above premise, learned senior Counsel submitted that, since the law is trite that leave is necessary to raise on appeal an issue not raised at the trial Court, the Appellant cannot be allowed to raise the issue of the Originating Summons in his Notice of Appeal without the prior leave of the Court below or of this Court. Having not obtained the requisite leave of Court, he argues that the Appellant is not entitled to be heard on the new point as such an issue is incompetent. He therefore urged the Court to strike out Ground IV in the Notice of Appeal and Issue IV formulated therefrom in the Appellant’s Brief.
In responding to the issues raised by the Respondents in the Preliminary Objection, the Appellant did not formulate any issue for the determination of this Court. However, it is his contention that the real questions in controversy in this Appeal are as follows:
(1) The jurisdiction of the Federal High Court to entertain the Suit.
(2) The failure of the learned trial Judge to make a reference to the Court of Appeal, and
(3) Whether the Court of Appeal can, in the circumstances, invoke Section 16 of the Court of Appeal Act to determine the Originating summons, which the trial Judge who had jurisdiction, failed to determine even though there are sufficient materials to decide the merit of the substantive suit.
Learned senior Counsel submitted that Ground IV of the Grounds of Appeal is competent and no leave of court is required to raise same. The substance of his submission on this issue is that the said Ground arose from the effect of the decision of the lower Court that it lacked jurisdiction, the Court’s refusal to make the Reference sought to the Court of Appeal and the subsequent striking out of the Originating Summons. He contends that the lower Court, in determining the Preliminary Objection and refusing to make a Reference, should have, in the alternative, proceeded to also consider the Originating Summons as it had sufficient materials before it to do so. The purpose of Ground IV and Relief IV is, in his own words, “… to activate the Section 16 powers of this Court as well as its powers under Order 1 Rule 9(3) and (4) and Order 3 Rule 23(1) of the Court of Appeal Rules so that the Court can use same to exercise its full jurisdiction over the whole proceedings as a Court of first instance.” Reliance was placed on the case of Inajoku V Adeleke (Supra) at pages 613 to 614 paragraphs H-B. Therefore, the kernel of learned senior Counsel’s submission is that Ground IV is merely an invitation to this Court to pronounce upon or inquire into the lower Court’s action in pronouncing on several Sections of the 1999 Constitution while failing to pronounce upon Sections 178, 189, 181 and 185 of the same Constitution in the alternative given that sufficient materials were before him to warrant such. He relied on the decisions in Afribank Nig. PLC V Osisanya (2000) 1 NWLR (Pt. 642) 598 and Obiegbu V University of Abuja (2005) 9 NWLR (Pt. 930) 310 at 322-323.
A Ground of Appeal has been defined as any wrong decision, resolution, inference or step taken by the Court below which, in the contention of an Appellant is wrong. By this definition it follows logically that a ground of appeal must relate to or arise from the decision or judgment appealed against, and should challenge the validity of the ratio in the judgment. See Ella V Agbo (1993) 8 NWLR (Pt. 613) 139.
Consequently, any Ground of Appeal that is not based on an issue that was canvassed before the lower Court should either be ignored or struck out. See Kurfi V Mohammed (1993) 2 NWLR (Pt. 277) 602. The law is now settled and admits of no argument that where an issue is raised for the first time on appeal, leave of Court must be obtained otherwise such an issue is incompetent. Afribank Nig. PLC V Osisanya (2000) 1 NWLR (Pt.642) 598.
The objection to Ground IV is that the Originating Summons upon which Ground IV of the Notice of Appeal is founded, was never heard by the Court. A cursory look at pages 198 to 199 of the record would clearly disclose what transpired at the lower Court in relation to the hearing of the pending claim and applications before the Court. When faced with the three matters, this is what the lower Court said at page 199:
“Court – I agree with the 3 learned Senior Advocates on the issues raised. They are in agreement that the motion for reference be taken first and the Preliminary Objection can be argued in answer to the motion…
The Court therefore orders as follows:
The motion for reference will be taken first.
Thereafter Chief Uche (SAN) shall move his objection to jurisdiction and also react to the motion for reference. The normal course of events follows as to reply. ”
Pursuant to this explicit direction by the Court, this is indeed the course the proceedings before the lower Court took. At the close of submissions by learned senior Counsel on the issue of Reference raised by the Appellant (Plaintiff) and the Preliminary Objections by the Respondents (Defendants), the Court proceeded, without more, to deliver its Ruling. Therein, it found that the Court lacked jurisdiction in respect of the subject matter of the Originating Summons, and that the case was not a proper case for reference of the issues of law raised to the Court of Appeal. That being the case, it proceeded to strike out the matter.
From the entire proceedings of the Court, it admits of no argument that the issue of hearing of the Originating Summons was neither canvassed at the lower Court nor did the Court make any finding on it one way or the other. After the Motion for Reference and the Notice of Preliminary Objection were moved and argued and the Court delivered its Ruling, nothing more was said about the Originating Summons. This is not surprising since the lower Court had ruled it lacked jurisdiction to entertain the matter. Therefore, since the Originating summons did not arise in the proceedings or Ruling of the lower Court, the only way the aggrieved Appellant could have hoped to introduce it at this stage of the proceedings before this Court is by seeking the leave of Court to do so.
There is no way around this. The Appellant cannot succeed in smuggling it in by his ingenious argument that the law allows an aggrieved party to appeal against the effect of an unfavourable decision of the Court. That cannot be so, especially considering the facts of this case. It is for these reasons that I find that Ground IV of the Notice of Appeal, not being a matter that has arisen from the proceedings and Ruling of the Court below, and no leave having been sought to raise same before this Court, is incompetent and liable to be struck out.
The next issue canvassed in the Preliminary Objection is the issue of jurisdiction. On the subject of jurisdiction, learned senior Counsel for the 1st Respondent submitted that such is ascertainable from the claim of the Appellant only. The law is also trite that the subject matter of the action determines jurisdiction on facts, while Statutes also delimit or circumscribe jurisdiction. Reference was made to the decisions in the cases of FGN V Oshiomole (2004) 3NWLR (Pt. 860) 305; Onuorah V KRPC (2005) 6 NWLR (Pt. 921) 393 at 397 and Ishola V Ajiboye (1994) 6 NWLR (Pt. 352) 506 ratio 3. The subject matter as disclosed in the Originating Summons in conjunction with the reliefs prayed for by the Appellant is the duration of tenure of office of a Governor. The question which the Appellant seeks to be answered is, ‘Is the tenure of the Appellant as Governor of Anambra State from 2003 to 2007, or from 2006 to 2010? For the answer to this, learned senior Counsel for the 1st Respondent placed heavy reliance on Sections 184 and 285(1) (2) of the 1999 Constitution and the pronouncements of Superior Courts of record on those provisions of law and related issues. He contended that these provisions confer exclusive jurisdiction in respect of electoral and tenure matters on the Election Tribunal. It was therefore his conclusion that Section 251(1) of the 1999 Constitution does not cater for the jurisdiction of the Federal High Court on electoral matters.
He urged the Court not to be persuaded by Appellant to read Section 251 (1) of the 1999 Constitution in a literal and myopic manner such as would subvert the express and special jurisdiction granted by the Constitutional legislator therefore going against the ‘Harmonious Construction’ or ‘Whole Statute’ rule. He relied on the decisions in Abioye V Yakubu (1991) 5 NWLR (Pt. 190) 130; AG Abia Stat V AG Federation (2006) 16 NWLR (Pt. 1005) Z6S; Adeleke V OSHA (2006) 16 NWLR (Pt. 1006) 608 ratios 21 to 25 and AG Bendel State V Ag Federation (1982) 3 NCLR 1. Such reading will also be counter to the paramount rule of construction that the express mention of one thing excludes the other.
Reliance was placed on the case of Major & Co Ltd V Schroeder (1992) 2 NWLR (Pt.101)1. It is therefore for all these reasons that the Respondents urge this Court to uphold the Preliminary Objection on the ground that it lacks jurisdiction to determine the Appeal.
On his own part, learned senior Counsel for the Appellant referred to and adopted all the submissions in his Reply Brief on the issue of jurisdiction. He added that, to be an electoral matter for which exclusive jurisdiction is given to the Election Tribunal under Section 285(1) and (2) of the 1999 Constitution, the suit must be filed in accordance with Section 131(1) of the Electoral Act, 2002 and must comply with the requirement of paragraph 4(1) (c) of the 151 Schedule to the Electoral Act, 2002. Reliance was placed on the dictum of Fabiyi, JCA in the case of Enumuo V Duru (2004) 9 NWLR (Pt. 877) 75; Obasanjo V Yusuf (2004) 9 NWLR (Pt. 877) 144 and ANPP V R.O.A.S.S.D. (2005) 6 NWLR (Pt. 920) 140.
He contends that where the case does not fall into the requirements of Sections 131 and 134 in conjunction with paragraph (4)(1)(c) of the Electoral Act (as amended), then it is not an electoral matter. Learned Counsel reiterated that the case now before the Court is not an election matter. It is a question of the interpretation of the Constitution and the infraction of Sections 180(2) and 185 of the 1999 Constitution by the 1st Respondent, just as in the cases of Inajoku V. Adeleke (Supra), Adeleke V OSHA(Supra) and Balonwu V. Obi (2007) 5 NWLR(Pt. 1028) 488. Sections 180(2) and 185 of the 1999 Constitution gave the Appellant a term of four years from the date he was sworn in as Governor. Any attempt by the Respondent to make the Appellant to enjoy a term less than four years is an infraction of the Constitution for which the Federal High Court has jurisdiction and not the Election Tribunal. It is therefore learned senior Counsel’s submission that the Appellant has met all the conditions requisite to the invocation of Section 16 of the 1999 Constitution, and he urged the Court to so hold.
From the submissions of learned senior Counsel, it is clear that the issues in the Motion for Reference and those in the Preliminary Objection overlapped jurisdiction was a common denominator to both applications. While it has been argued that the Court was not entitled to hear the Originating Summons because it raised the issue of the tenure of the Appellant as Governor of Anambra State, it has equally been argued that the Court could not grant the Motion for Reference because one of the preconditions for such a referral is that the lower Court must have jurisdiction before the Court of Appeal can entertain same. Jurisdiction has a most paramount place in our system of adjudication and its importance cannot be over-emphasized. Without jurisdiction, the Court is like a dignified, customized and elegantly built locomotive train with no engine to give it motion. It remains sadly still and motionless in its awesomeness and dignity jurisdiction has been variously described as the bedrock, Livewires and nerve centre of a suit. It is indeed no less. It determines the competence of the Court to hear any matter before it. One of the indicia of jurisdiction, as decided by the Supreme Court in Madukolu V Nkemdilim (1962) 1 ALL NLR 587, is that the subject matter of the case is within the jurisdiction of the Court. Jurisdiction may therefore imply the power or authority of a Court to adjudicate over a particular subject-matter. Where a Court proceeds without jurisdiction, the proceedings are, and remain, a nullity no matter how well conducted and brilliantly decided. See Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Onyenucheya V Milad, Imo State (1997) 1 NWLR (Pt. 482) 429; Barsooum V Clemessy International (1999) 12 NWLR (Pt. 632) 516; Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166.
In determining jurisdiction, it is the court processes that must be looked at. In particular, the claim of the Plaintiff will guide the Court as to whether it possesses jurisdiction to look into the subject matter of the suit. In some instances, it may be necessary to take some evidence before the issue of jurisdiction is determined. However, where all the materials necessary to determine whether or not the Court has jurisdiction are before the Court, as in this case, that will not be necessary. In this case, numerous affidavits have been filed by the Appellant and the Respondents in respect of the Motion for Reference and the Notice of Preliminary Objection. Where also jurisdiction has been prescribed by statute, such as the provisions of the Constitution, the Court must take into consideration the totality of the enabling statute, section, sections or subsections. See Inajoku V Adeleke (Supra); Attorney General Anambra State V. Attorney General of the Federation (1993) 6 NWLR (Pt. 302) 692.
Specifically, this was the admonition of the Supreme Court in the Inajoku case (Supra) and this is exactly what it proceeded to do in respect to the interpretation of Section 188 (1) to (10) of the 1999 Constitution. Niki Tobi, JSC stated thus at page 589 of the report:
“In determining the jurisdiction of a Court in relation to a constitutional provision, the Court must take into consideration the totality of the enabling section or sections and not subsections in isolation. This is because the journey to the jurisdiction of the Courts in the Constitution, at times, could be cumbersome and not straight or simple.”
In the same vein, in the case of Ogboru V. Ibori (2005) 13 NWLR (Pt. 942) 319, this Court, in reiterating this cardinal cannon of interpretation, stated thus at page 392 of the report per Muhammad, JCA (as he then was):
“In construing a legislation of whatever form or status, the con of the words or phrases that are being construed should extend beyond the particular words, phrase or even section in which the words or phrases occur to such other parts of the very legislation being construed. Resultantly, where a Court seeks to avoid injustice, inconsistency or repugnancy either within the con of particular words or phrases in a particular section being construed, or as between the section and other parts of the statute, this rule entitles a court to extend or restrict, as the case may be, the meaning of a particular section in relation to other sections of or even the statute as a whole. It is more beneficial, therefore, in circumstances where inconsistency or injustice might result from giving effect to the clear words of the statute being interpreted, to consider the statute as a whole rather than insist on discovering the meaning of any word, phrase or section in isolation. See Awuse V. Odili (2004) 8 NWLR (Pt. 876) 481.”
In the instant case, whereas the Respondents argue strenuously that, by Sections 184 and 285 (1) and (2) of the 1999 constitution, it is the Election Tribunal that is vested with jurisdiction to hear a matter which calls for the determination of the tenure of a Governor, the Appellant has argued conversely that the Originating Summons before the Court is not an election matter. He contends that it is a question of the interpretation of the 1999 Constitution and, in particular, the infraction of Sections 180(2) and 185 thereof.
This matter was commenced at the Federal High Court, Enugu and it essentially seeks a determination of the Court on when the tenure of the incumbent Governor shall cease. The prayers in the Originating Summons flow directly from the resolution of this issue, irrespective of the language in which it has been couched, i.e. when did the Appellant’s tenure begin. It is all a matter of semantics. Bottom line is that the claim seeks the Court to make a pronouncement on the tenure of office of the Appellant, when it began and so when it will cease, especially in light of the impending threat by the 1st Respondent to conduct Governorship elections on 14th April, 2007. Since the subject matter of the Appellant’s suit at the lower Court is undoubtedly the tenure of office of the Appellant as Governor, I shall proceed, post-haste, to examine the provisions of the Constitution relied upon to determine the forum where such a matter can be constitutionally ventilated.
184. “The National Assembly shall make provisions in respect of –
(a) persons who may apply to an election tribunal for the determination of any question as to whether –
(i) any person has been validly elected to the office of Governor or Deputy Governor,
(ii) the term of office of a Governor or Deputy Governor has ceased, … ”
(iii) ……………
285-(1) There shall be established for the Federation one or more election tribunals to be known as the National 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;
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought.
(2) there shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals 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 or as a member of any legislative house.”
Flowing from these provisions, it is clear to me that it is the intendment of the Constitutional legislator that where a question arises as to whether the term of office of a Governor has ceased, recourse must be had to the Governorship Election Tribunal created for that purpose. This provision clearly envisages disputes arising from and revolving around the tenure of office of a Governor. To interpret this to mean that an action can only be ripe under this provision before the Election Tribunal after the term of office might have ceased is to be unnecessarily restrictive in interpretation. This is what we must not do. Where the provision of the Constitution or of a Statute calls for interpretation, Courts are enjoined to adopt the liberal and wide interpretation of same as opposed to the narrow and restrictive interpretation. By Section 184 of the Constitution, the National Assembly is empowered to make laws in respect of persons who may apply to an Election Tribunal for the determination of any question as to whether the term of office of a Governor has ceased. The subject matter of the instant suit falls into the definition of an election matter properly so called by a combined reading of Sections 184 and 285. Section 285(2) of the same Constitution went on to establish Governorship and Legislative Houses Election Tribunals to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative House. Section 285(1) which provides for the creation of National Assembly Election Petitions Tribunal set out in greater detail the areas which such Tribunals could look into. Even without these having been repeated in subsection (2), which creates the Governorship and Legislative Houses Tribunal, it is clear that it is the intendment of the legislators that the jurisdiction vested in the Tribunal created in subsection (1) is also vested in the Tribunals created in subsection (2). This is so because by the ‘Harmonious Construction’ and ‘Whole Statute’ rule, the subsections of a Constitution are not intended to be read in isolation. They must be read as a whole in order to determine the intendment of the makers of the Constitution, to give proper effect to such intention and to avoid inconsistencies and absurdity. See PDP V INEC (1999) 11 NWLR (Pt. 626) 200; Rabiu V The State (1981) 2 NCLR 293; Chime V Ude (1996) 7 NWLR (Pt. 461) 379. It could not have been the intention of the constitutional legislator to expressly make the issue of tenure of the members of the National Assembly a matter to be decided at the Tribunal, only for it, in the very next subsection, to intend that the tenure of Governors be decided elsewhere, such as at the Federal High Court. That would be an absurd reading of the Constitution that does not render itself to reason and cannot be sustained when measured against the yardstick of the cannons of interpretation of statutes. I am therefore of the humble view that a combined, wholesome and harmonious reading of Sections 184 and 285(1) and (2) of the 1999 Constitution leads to the irresistible and only conclusion that it is the Governorship Tribunal, to the exclusion of any other court, in particular, the Federal High Court, which has jurisdiction to entertain and determine any matter pertaining to the tenure of office of a Governor.
Learned senior Counsel for the Appellant has relied heavily on Section 251(1) (q) and (r) of the 1999 Constitution as his authority for approaching the Federal High Court with this suit. For clarity, it states:
“251-(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal high Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-
…………
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
……….
It goes without saying that the claim in the Originating Summons is directed against INEC, an agency of the Federal Government. However, the bone of contention here is: What is the subject matter of the claim? Is it actually principally an issue of the construction and interpretation of the provisions of the Constitution or is it centrally an issue on the tenure of office of the Appellant? It is my respectful view that since Section 251 (l) (q) & (r) is made “subject to the provisions of the Constitution” and since the Constitution in Sections 184 and 285(1) and (2) have made adequate and ample provision for which Court should handle matters of the tenure of office of a Governor, any recourse to the Federal High Court would be an exercise in abject and utter futility. The expression “subject to” is often used in statutes to introduce a condition, a proviso, a restriction or a limitation. It subordinates the provisions of the “subject” section to the section referred to which is intended not to be affected by the provisions of the latter. Whenever the expression “subject to” is used at the beginning of a statute, it is an expression of limitation. It implies that what the section or sub-section is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment. There is a marked distinction between jurisdiction conferred generally without words of limitation and one conferred “subject to” a particular contingency. Therefore, the words “subject to” in sub-section (l) paragraphs (q) and (r) of Section 251 of the 1999 Constitution simply subjects that sub-section to the other provisions of the Constitution, such as Sections 184 and 285(1) and (2) dealing with the jurisdiction granted to Election Tribunals in election matters. Section 251(1) (q) (r) therefore confers on the Federal High Court special jurisdiction in respect of disputes involving the Federal Government and any of its agencies, but it is a jurisdiction conferred “subject to” (that is to say, to be controlled by) or “without prejudice to (that is to say not waiving or distracting from) the jurisdiction conferred on the Election Tribunals in the Constitution.
What this means is that Section 251(1) (q) (r) has not specifically vested the Federal High Court with any extra or additional jurisdiction which the “provisions of this Constitution” to which Section 251 (1) (q) (r) is merely an enabling provision, has not given it. Therefore, should there be a collision between Section 251(1) (q) (r) and other provisions of the Constitution, such as Sections 184 and 28S thereof, then the phrase “subject to” shows that the “other provisions of the Constitution” will prevail. This is the effect of the finding of the Supreme Court in the case of Tukur V. Government of Gongola State (1989) 4 NWLR(Pt. 117) 517 as it applies to this case mutatis mutandis.
In addition to this, Section 251(1) sets out the jurisdiction conferred on the Federal High Court. The matters in which the Federal High Court is vested with jurisdiction are thus expressly limited by the Constitution. Therein lies the fallacy in the Appellant’s submissions. It is therefore my finding that the provisions of Section 251(1) (q) and (r) are totally inapplicable and inappropriate to address the issue of jurisdiction in this matter. As Niki Tobi, JSC stated in the case of ANPP V. The Returning Officer Abia State & Others (Unreported, Suit No. SC.78/2005 Delivered on 22/02/07):
“.. in my humble view, the Federal High Court lacks jurisdiction to entertain the Appellant’s suit and the Court of Appeal was correct in so holding. A relief of certiorari smuggled into this matter cannot change the character of the matter, as an election matter clearly belongs to the appropriate Election Tribunal Section 285 is clear on this… ”
(Bold and italics mine for emphasis).
Indeed, Oguntade, JSC went on to speak to almost the exact predicament which the Appellant in this Appeal has found himself. He said:
“A perusal of the reliefs which the Appellant as Plaintiff had claimed from the High Court, Abuja amply reveals that this suit was to query the return made by the Respondents in the 2003 Senatorial Election. Section 28S (1) of the 1999 Constitution vests exclusive jurisdiction in an election matter in the Election Tribunals. There is no doubt that the time limit imposed by law for the bringing of such election related suits can impose a grave injustice on a person where the results are not declared before the expiry of the time limit. Such was the case in this matter. The solution to such mischief lies in reforming the Law. Not in giving the High Court a jurisdiction it does not possess. I affirm the judgment of the court below. I also dismiss the appeal… ”
(Bold and italics mine for emphasis).
I respectfully disagree with the distinction learned senior Counsel attempted to draw between the cited case and the instant case. While it may be true that the Electoral Act made specific provision for the issues which formed the basis of the Plaintiff’s claim in the case just cited, and the same law failed to make specific provision for issues relating to tenure, the Constitution, which is the fons juris, having provided for the forum for the determination of matters of tenure, it is, to put it mildly, unreasonable and unnecessarily being facetious, to require that it must also necessarily be repeated in the Electoral Act in order to be taken seriously. Indeed, learned senior Counsel for the Appellant unwittingly expressed the frustration of the Appellant in regard to the time limit for the filing of petitions and amendments to same, (which must have informed his eventual shopping for a forum at the Federal High Court), when he went to great lengths to explain in “The Plaintiff’s Address in opposition to 1st Defendant’s Further Address in respect of 1st Defendant’s Preliminary Objection… and Plaintiff’s Application for Reference” produced at pages 186-187 of the record of the lower Court as follows:
This is not a petition. The language cannot come within section 285(1) and (2) of the Constitution as the issue in the case cannot be whether or not the Plaintiff’s tenure of office has ceased.
Certainly the declaratory relief to the effect that INEC cannot hold an election in Anambra State cannot be validly moulded to fit the contention that the Plaintiff’s tenure of office has ceased. This case is clearly distinguished from Sc. 78/2005 ANPP V. R. O. ABIA STATE unreported decision of the Supreme Court delivered on 22nd February, 2007 where according to Oguntade J.S.C. the relief sought revealed that –
“..the suit was to query the return made by the Respondents in the 2003 Senatorial Election.”
The foregoing was done after the time limited for presentation of an election petition. In the case now under consideration going by Section 285 (1) of the Constitution and 184 the time has not even arisen for the Plaintiff to approach the tribunal as clearly the tenure of office of the Plaintiff is still running. This is accepted by all the parties. If this is case, the tribunal created by virtue of Section 285 (1) and 184 cannot entertain the Plaintiff’s case for the reason that his tenure has not ceased which is common ground in this case. This alone spell (sic) out the fact that any tribunal created by virtue of the aforesaid section will clearly not possess jurisdiction to adjudicate on the Plaintiff’s case.
The Plaintiff’s case has not been strained or smuggled to fit into Section 251 (1) (q) and (r) of the 1999 Constitution. It indeed falls squarely within the said section as no other court or tribunal in Nigeria can at this stage adjudicate on the Plaintiff’s prayers. The court is urged so to hold. In so doing the court is further urged to accord the proper interpretation to the term “Notwithstanding” appearing in Section 251 (1).
Finally on this subject, the apex Court has again reiterated one of the cardinal principles of interpretation in the recent case of Inajoku V Adeleke (Supra) at page 629 of the report thus:
“The law is elementary that where the Constitution or a Statute contains a general provision as well as a specific provision, the specific provision will prevail over the general provision.”
Consequently, it is now a well entrenched principle that in the construction of statutory provisions, where the statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule which means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See Ogboru V Ibori (Supra); Udoh V. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139. In this wise, it is my humble view that the specific provisions of Sections 184 and 285(1) and (2) will prevail over the general provision of Section 251(1) (q) and (r). Accordingly, the issue of which Court is vested with jurisdiction to inquire into the question of when the tenure of an elected Governor will cease must necessarily be governed by the combined reading and application of Sections 184 and 285(1) and (2) and not by Section 251(1) (q) and (r) of the 1999 Constitution. And I do so find.
Based on all the foregoing and for the more comprehensive reasons given in the lead Judgment, I find that the Court below found correctly when it held that the subject matter of the Plaintiff’s suit was one of the tenure of a Governor, which is an election matter. As such it is the Election Tribunal, to the exclusion of all other Courts, including the Federal High Court, which is vested with jurisdiction to try same.
Having found that the Court below was correct when it found that it lacked jurisdiction ab initio to hear and determine the Appellant’s claim to entertain the suit filed before it, what is the fate of the Motion for Reference to the Court of Appeal? The answer to this is very short. Where the lower Court lacked jurisdiction in respect of the matter before it, it similarly lacked the jurisdiction to make any orders whatsoever in respect of the Motion. It would have amounted to a contradiction in terms and in fact, if it had gone on to refer the Constitutional provisions for interpretation to this Court. That he went on to consider the application for reference at all was possibly ex abundanti cautela.Finally, one word on the application of the Appellant inviting the Court to exercise its Section 16 powers under the Court of Appeal Act.
Having found that the Court below acted correctly in holding that it lacked jurisdiction to hear and determine the Originating Summons before it, and in consequence, declining to refer the matter to this Court for the interpretation of certain provisions of the Constitution, this Court similarly lacks jurisdiction to invoke its powers under Section 16 of the Court of Appeal Act to step into the shoes of the Court below to do what it did not do. It would have been different if the Court below was vested, with jurisdiction and it abdicated its responsibility to decide the issues before it. Since jurisdiction is the bedrock of any suit and determines the power of the Court to entertain same, any defect in a suit which goes to jurisdiction is fatal to its survival. The Court of Appeal can exercise its power under Section 16 only if the Federal High Court has jurisdiction in the matter. Accordingly, the jurisdiction of the Federal High Court is a precondition for the invocation of Section 16 by the Court of Appeal. See Inajoku V. Adeleke (Supra); Olutola V University of Ilorin (2004) 18 NWLR (Pt. 90S) 416; NICON V. Power and Industrial Engineering Co. Ltd (199) 1 NWLR (Pt. 129) 697; Faleye V. Otapo (1995) 3 NWLR (Pt.381) 1.
In the light of all the above findings, what therefore is the proper order to be made in the circumstance? Learned senior Counsel for the1st Respondent, in conjunction with other learned Counsel for the 2nd to 7th Respondents have urged us to strike out the suit. I agree that this is the only way to go having found that the suit was not brought before the proper Court vested with jurisdiction to entertain same. In the Inajoku case, which has now assumed the proportion of the locus classicus in these matters, the Supreme Court held that where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the Plaintiff another opportunity to file the action, if possible, in a court of competent jurisdiction, or by way of amending the action to fall in line with the jurisdiction of the court it was initially filed.
By this, the Plaintiff is given another opportunity to have a “second but the cherry.”
Based on all the above and for the much fuller reasons stated in the lead Judgment, I too find merit in the Preliminary Objection raised to the hearing of the suit. It is sustained. The Appeal is dismissed and the Appellant’s Originating Summons filed at the lower Court is struck out. I abide by the order as to costs.
Appearances
Dr. O. Ikpeazu, SAN for the Appellant; with him O. J. Nnadi, T. U. Oguji, Ben Osaka, V. E. Okonkwo,
E. I. Obinka, C.I. Okoye,
E. Enemuo and O. AnunonyeFor Appellant
AND
Chief AI. Idigbe, SAN for 1st Respondent; with him S. A Elendu; J. I. Onwugburu (Miss) and K. Okorie Esq.
A Obi Okafor for the 2nd Respondent; with him F. I. Aniukwu.
I. Ezechukwu for 3rd Respondent; with him O. Ogbenna (Miss)
I. Udenze for 4th & 5th Respondents; with him B. Adeboye
N. Emeka for 6th & 7th Respondents; with him O. N. Orizu.
8th Respondent absent; not represented by counsel.For Respondent
