HONOURABLE RAYMOND NWOKOCHA & ORS v. IBEGWURA, ORDU AZUBUIKE & ANOR (2012)

HONOURABLE RAYMOND NWOKOCHA & ORS v. IBEGWURA, ORDU AZUBUIKE & ANOR

(2012)LCN/5230(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of March, 2012

CA/PH/118/2011

RATIO

THE JURISDICTION OF AN ELECTION PETITION TRIBUNAL TO HEAR AND DETERMINE QUESTIONS IN RESPECT OF LOCAL GOVERNMENT ELECTION

The question sought to be determined by the lower court falls within the purview of section 1 (1)(b) of the Local Government Election Tribunal Law 2000.
Section 1 (1b) of the said Law reads thus:- “There shall be established in the state one or more Election Tribunals to be known as Local Government Election Tribunal (in this law referred to ]
s an “Election Tribunal”) which shall to the exclusion of any other Tribunal or court have original jurisdiction to hear and determine. (b) any question as to whether the term of office of any person as chairman of a Local Government Council has ceased. This provision clearly divests the High Court of Rivers State of jurisdiction since it is in respect of local government Election which is within the legislative competence of the House of Assembly to make law on. See the Second Schedule part II item 12 of the 1999 Constitution (as amended) In so far Rivers State Election Tribunals Law No. 3 of 2000 does not conflict with any Act of the National Assembly and it is in compliance with the provision of section 4(7b) of the 1999 Constitution, it can validly exclude the jurisdiction of the High Court of the State in respect of local government election. For clarity sake I quote section 4(7b) of the Constitution hereunder. “The House of Assembly of a state shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say
(b) any matter included in the concurrent legislative list set out in the First Column of Part II of the second schedule to this constitution to the extent prescribed in the second column opposite thereto;
The second schedule part II items 11 and 12 of the 1999 Constitution also reads:- “The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating election to a local government council. 12) Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law by the National Assembly.” It needs to be noted that section 272 of the Constitution which provides for the jurisdiction of the High Court of a State is subject to the other provision of the 1999 Constitution (including section 4 of the Constitution). PER. T. O. AWOTOYE, J.C.A

PRACTICE AND PROCEDURE:THE PRINCIPLE OF AWAITING THE DECISION OF A HIGH COURT IN RESPECT OF A PENDING MATTER IN THE LOWER COURT

In MOHAMMED v. OLAWUNMI (1993) 4 NWLR (PT.287) page 278, relied on by the appellant, the Supreme Court held: “It is better to await the decision of a high court in respect of a pending in the lower court so as to avoid embarking an exercise in futility. What is of considerable importance is that there must be respect for each court… Where there is an application before a higher court for a stay of proceedings in the lower court, a decision of the lower court, which will render the result of such application nugatory should avoided.” See also NAB v. CAMEX LTD (1999) 6 NWLR (PT.608) 648, INAKOJU V. LADOJA (2006) 18 NWLR (PT.1012) 667. PER. T. O. AWOTOYE, J.C.A

ON THE PRINCIPLE OF LOCUS STANDI

On locus standi, learned counsel for the appellant referred to a catena of cases on the fact that a plaintiff needs to show that his sufficient or special interest has been or will be adversely affected by the event leading to the suit instituted. I agree. See the recent Supreme Court case of BASINCO MOTORS LTD v. WOERMANN – LINE (2010) WRN 1 at 32 – 33 where Adekeye JSC defined locus standi thus:-
“The terms locus standi denotes the legal capacity to institute an action is a court of law. It is status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal.
(a) legal or justiciable right
(b) show sufficient or special interest adversely affected
(c) A justiciable cause of action MOMOH v. OTARU (1970) 1 ALL NLR 117 (1970) NSCC 99; BOLAJI v. BANGBOSE (1986) 4 NWLR (PT.37) 632; ADESANYA v. THE PRESIDENT (2002) 44 WRN 80, (1981) 12 NSCC 146 1981 ALL NLR 1; 1981 5 SC 112, ADEFULU V. OYESILE (1989) 12 SC 43, (1989) 5 NWLR (PT.122) 377, THOMA V. OLUFOSOYE (2004) 49 WRN 37; (1986) 2 SC 325; 1986 1 NWLR (PT.18) 669; ODENEYE V. EFUNNUGA (1990) 11 – 12 SC 185; (1990) 7 NWLR (PT.164), 618, OWODUNNI V REGISTERED TRUSTEES OF CCC (2000) 2 WRN (VOL.2) 29 (2000) 6 SC (Pt.111) 60, (2000) 10 NWLR (Pt.675) 315.” Obaseki JSC in Adesanya v. President (FRN) (2002) 44 WRN 80 at 148 had this to say on the doctrine of locus standi. “The mere fact that an act of the executive or legislature is unconstitutional without any allegation of infraction of or its adverse effect on ones civil rights and obligation poses no question to be settled between the parties in the court.” PER. T. O. AWOTOYE, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. HONOURABLE RAYMOND NWOKOCHA
2. HONOURABLE DOUGLAS IFEANYICHUKWU UZAH
3. HONOURABLE (SIR) FIDELIS OBIOSA
4. HONOURABLE HARCOURT AMUA Appellant(s)

AND

1. IBEGWURA, ORDU AZUBUIKE
2. RIVERS STATE INDEPENDENCE ELECTORAL, COMMISSION (RSIEC) Respondent(s)

T. O. AWOTOYE, J.C.A (Delivering the Leading Judgment): This is the judgment in respect of an appeal against the decision of Aprioku J. of the River State High Court delivered on 21/2/2011.
By his originating summons filed on 25/11/2010 the claimant in the court below sought for the determination of the following questions and consequential reliefs.
“1. Whether by the provisions of the Rivers State Independent Electoral Commission Law of Rivers state Local Government Law 1999 as amended, Erections shall hold in Ogba/Egbema/Ndoni L.G.A. of Rivers State in 2011.
2. Whether by the provisions of the said laws a vacancy shall exist in Ogba/Egbema/Ndoni L.G.A. of Rivers State in 2011. AND if the above questions are answered in the affirmative; the claimant claims/asks for the following:
A. A Declaration that by virtue of the combined provisions of SS & 66(1) (3) of the Rivers state Local Government Law, 1999 as amended, the tenure of the Ogba/Egbema/Ndoni L.G.A. Council shall expire in March, 2011.
B. A Declaration that pursuant to S.13(1) of the Rivers state Independent Electoral Commission Law of the No. 2 of 2000 law, Elections shall hold in Ogba/Egbema/Ndoni L.G.A. of Rivers State in 2011 (on a day to be fixed by RSIEC)
C. An Order directing the RSIEC to conduct LGA elections in Ogba/Egbema/Ndoni L.G.A. in 2011 (on a day to be fixed by RSIEC).”
After the hearing of parties, the learned trial judge entered judgment in favour of the claimant as follows:-
“On the whole, this suit is meritorious and having resolved the questions for determination which is that, the 2nd set of defendants emerged winners in the bye election conducted on 6/3/2010 by the 1st defendant in Ogba/Egbema/Ndoni Local Government Area of Rivers state. Having resolved the issue for determination in favour of the claimant, I hereby make the following Orders:-
(i) I hereby declare that the exclusion of Ogba/Egbema/Ndoni Local Government Area in the Local Government Council Elections in Rivers state fixed for March/April, 2011, void ab initio and of no effect whatsoever.
(ii) I hereby declare that by virtue of the combined provisions of sections 65 and 66(1)-(3) of the Rivers state Local Government Law, 1999 as amended, the tenure of the Ogba/Egbema/Ndoni Local Government Area council shall expire in March 2011.
(iii) I hereby make a further declaration that pursuant to section 13(1) of the Rivers State Independent Electoral commission Law No. 2 of 2001, elections shall hold in Ogba/Egbema/Ndoni Local Government Area in 2011, (on a day to be fix by RSIEC).
(iv) I hereby order and I so direct that the Rivers state Independent Electoral commission (RSIEC) shall conduct the Local Government Area elections in Ogba/Egbema/Ndoni Local Government Area on the same date that shall be fixed for the conduct of the general elections in 011, for other Local Governments into elective offices of the various councils in Rivers State.”
Dissatisfied with the decision the 2nd set of respondents at the lower court filed Notice of Appeal containing 13 grounds of appeal on 7/3/2011.
After transmission of record of appeal the appellant filed their brief of argument on 17/9/2011 and it was deemed filed on 25/10/2011. The respondent filed his brief of argument on 3/11/2011 but it had to be discountenanced on ground of non-compliance with the court of Appeal Rules. The Appellants in response to the 1st respondent’s brief filed a Reply on 29/11/2011 but was deemed filed on 1/02/2012. However having regard to the incompetence of the 1st respondents’ brief, the Reply brief will not be relevant in this appeal.
The appellants formulated 6 issues for determination to wit:
“(1) Whether the learned trial court was right in proceeding to deliver judgment on the 21st day of February 2011 when it was full aware that their existed constitutionally guaranteed challenges on the propriety of its Ruling delivered on the 14th day of February 2011 and a motion for a stay of further proceedings and injunction fixed for hearing on the 13th day of September 2011 by this honourable appellate Court was pending before this honourable appellate Court? This issue arises from ground 1 of the ground of appeal.
(2) Whether the learned trial court has the jurisdiction to hear and determine this suit. This issue arises from grounds 2 and 3 of the grounds of appeal,
(3) Does the 1st respondent have the locus standi to institute this suit? This issue arises from grounds 4 and 5 of the grounds of appeal.
(4) Did the appellants receive a fair hearing? This issue arises form grounds 10, 11, 12 and 13 of the grounds of appeal
(5) Whether the learned trial court was right to have found that the appellant were elected to complete the unexpired term of the dissolved Ogba/Egbema/Ndoni Local Government Council? This issue arises from grounds 6, 7 and 8 of the grounds of appeal.
(6) Whether the learned trial court was right to have granted the 1st respondent a relief he did not claim? This issue arises from ground 9 of the grounds of appeal.”
On issue No.1 learned counsel for the appellants submitted that the learned trial judge was wrong in proceeding to deliver judgment on the 21/2/2011 when it was fully aware that his ruling was being challenged on appeal and a motion for stay of proceedings pending; appeal was pending at the Court of Appeal.
He relied on MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PT.287) PAGE 254. He urged the court to set aside the said judgment on this score.
On issue No.2, learned counsel Submitted that the originating summon was in respect of an item within the jurisdiction of the Rivers State Local Government Election Tribunal as stipulated under section (1b) of the Rivers State Local Government Election Tribunals Law No.3 of 2000. He submitted that the matter was not a pre-election matter and so it was not within the jurisdiction of the lower court. He relied on OLOTU V ITODO (2010) 18 NWLR part 1225 page 545, ANPP V THE RETURNING OFFICER ABIA STATE & ORS (2007) 11 NWLR (PT.1045) page 431 at 434.
On issue No. 3 learned counsel submitted that the 1st Respondent not being a Political Party and having not shown that he was the sponsored candidate of a political party lacked locus standi in that he had not disclosed any interest that he would suffer over and above any other person in Ogba/Egbema/Ndoni Local Government Area of Rivers State.
On other issues, the learned counsel for the appellant contended I that the appellant do not receive fair hearing, the learned trial court was wrong to have found that the appellants were elected to complete the unexpired term of the dissolved Ogba/Egbema/Ndoni Local Government council and that the learned trial court was right to have granted the 1st respondent a relief he did not claim.
He finally urged the court to:
“(1) Invoke the disciplinary powers of this honourabre court to set-aside the judgment of the Trial court delivered on the 21st day of February 2011 regardless of the fact that the learned trial court had notice of the fact that the appellants’ motion for a stay of further proceedings in the trial court and injunction was pending before this honourable Appellant court at the time the learned trial court delivered the judgment the subject matter of this appeal thus rendering the said fixed motion nugatory; or in the alternative.
(2) Set-aside the judgment of the learned trial court and remit the whole suit for retrial before another judge of the High Court of Rivers state on the grounds that the Appellants’ right to a fair hearing were substantially breached in the course of the trial of this suit leading to a miscarriage of justice; or in the alternative.
(3) Strike out the originating summons either on the grounds:
(a) That by the combined provisions of section 1(1)(b) of the Rivers State Local Government Elections Tribunal Law 2000 and section 142(3) of the Rivers State Local Government law 1999 it is only the Local Government Election Tribunal that has the original jurisdiction to hear and determine this suit that questions the tenure in office of the appellant who are incumbent members of the Ogba/Egbema/Ndoni Local Government Council; or
(b) That the 1st respondent/claimant who is a member of the public simpliciter does not have .the requisite locus standi to commence this suit which is an action in the realm of public law having not shown any interest over an above any other member of the Public in Ogba/Egbema/Ndoni Local Government Area of Rivers State in the subject matter of this suit or any injury that he would suffer that is peculiar to him.
(4) In the alternative to (1) (2) and (3) above grant an order setting aside the judgment of the learned trial court and in its place substituting an order dismissing the 1st Respondent/claimant’s claims in their entirety.”
I have carefully considered the submissions of learned counsel and the contents of the record of appeal transmitted to this court.
I am of the considered view that issue No.2 formulated by the appellant settles this appeal.
Was the learned trial court right to have heard and determined this suit?
The simple answer is No. The reliefs sought by the claimant before the court below have been earlier stated in this judgment.
The question sought to be determined by the lower court falls within the purview of section 1 (1)(b) of the Local Government Election Tribunal Law 2000.
Section 1 (1b) of the said Law reads thus:-
“There shall be established in the state one or more Election Tribunals to be known as Local Government Election Tribunal (in this law referred to ]
s an “Election Tribunal”) which shall to the exclusion of any other Tribunal or court have original jurisdiction to hear and determine.
(b) any question as to whether the term of office of any person as chairman of a Local Government Council has ceased.
This provision clearly divests the High Court of Rivers State of jurisdiction since it is in respect of local government Election which is within the legislative competence of the House of Assembly to make law on. See the Second Schedule part II item 12 of the 1999 Constitution (as amended) In so far Rivers State Election Tribunals Law No. 3 of 2000 does not conflict with any Act of the National Assembly and it is in compliance with the provision of section 4(7b) of the 1999 Constitution, it can validly exclude the jurisdiction of the High Court of the State in respect of local government election.
For clarity sake I quote section 4(7b) of the Constitution hereunder.
“The House of Assembly of a state shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say
(b) any matter included in the concurrent legislative list set out in the First Column of Part II of the second schedule to this constitution to the extent prescribed in the second column opposite thereto;
The second schedule part II items 11 and 12 of the 1999 Constitution also reads:-
“The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating election to a local government council.
12) Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law by the National Assembly.”
It needs to be noted that section 272 of the Constitution which provides for the jurisdiction of the High Court of a State is subject to the other provision of the 1999 Constitution (including section 4 of the Constitution).

I therefore hold for the above reason that only an election petition tribunal constituted in compliance with the local government election Tribunal law No. 3 of 2000 of Rivers State has jurisdiction to hear and determine the questions sought to be determined by the claimant before the court below.
2) In the course of the proceedings at the lower court, to the knowledge of the learned trial judge, a motion for stay of further proceedings and injunction in respect of the same matter was pending before this court. In his ruling delivered on 14/2/201, Aprioko J, said on page 285 of the record of appeal.”The Peoples Democratic Party is already taken steps to challenge the ruling of this court at the Court of Appeal on processes served on the Registrar of this court on 17/2/2011.”In spite of the learned trial judge proceeded to determine the case. This to my mind is wrong. There is a plethora of cases decided by the apex court and this court on this. In MOHAMMED v. OLAWUNMI (1993) 4 NWLR (PT.287) page 278, relied on by the appellant, the Supreme Court held
“It is better to a wait the decision of a high court in respect of a pending in the lower court so as to avoid embarking an exercise in futility. What is of considerable importance is that there must be respect for each court…
Where there is an application before a higher court for a stay of proceedings in the lower court, a decision of the lower court, which will render the result of such application nugatory should avoided.” See also NAB v. CAMEX LTD (1999) 6 NWLR (PT.608) 648, INAKOJU V. LADOJA (2006) 18 NWLR (PT.1012) 667.Proceeding to determine the matter when the Peoples Democratic Party was seeking to join in the matter and has gone to the court of Appeal, pursuant to its stated desire amounted to a denial of the right of the party concerned to fair hearing.
For this reason again, this appeal must succeed.
3) On locus standi, learned counsel for the appellant referred to a catena of cases on the fact that a plaintiff needs to show that his sufficient or special interest has been or will be adversely affected by the event leading to the suit instituted. I agree. See the recent Supreme Court case of BASINCO MOTORS LTD v. WOERMANN – LINE (2010) WRN 1 at 32 – 33 where Adekeye JSC defined locus standi thus:-
“The terms locus standi denotes the legal capacity to institute an action is a court of law. It is status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal.
(a) legal or justiciable right
(b) show sufficient or special interest adversely affected
(c) A justiciable cause of action MOMOH v. OTARU (1970) 1 ALL NLR 117 (1970) NSCC 99; BOLAJI v. BANGBOSE (1986) 4 NWLR (PT.37) 632; ADESANYA v. THE PRESIDENT (2002) 44 WRN 80, (1981) 12 NSCC 146 1981 ALL NLR 1; 1981 5 SC 112, ADEFULU V. OYESILE (1989) 12 SC 43, (1989) 5 NWLR (PT.122) 377, THOMA V. OLUFOSOYE (2004) 49 WRN 37; (1986) 2 SC 325; 1986 1 NWLR (PT.18) 669; ODENEYE V. EFUNNUGA (1990) 11 – 12 SC 185; (1990) 7 NWLR (PT.164), 618, OWODUNNI V REGISTERED TRUSTEES OF CCC (2000) 2 WRN (VOL.2) 29 (2000) 6 SC (Pt.111) 60, (2000) 10 NWLR (Pt.675) 315.”
Obaseki JSC in Adesanya v. President (FRN) (2002) 44 WRN 80 at 148 had this to say on the doctrine of locus standi.
“The mere fact that an act of the executive or legislature is unconstitutional without any allegation of infraction of or its adverse effect on ones civil rights and obligation poses no question to be settled between the parties in the court.”In this case the claimant at the lower court disclosed his locus standi in paragraph 9 & 10 of the supporting affidavit thus:
“9. That the claimant is from the affected local government area Ogba/Egbema/Ndoni L.G.A. attached as Exhibit B is the claimants local government letter of identification.
10. That as a stakeholder and a registered member of the United Nigeria Peoples Party, the claimant has an interest in the conduct of local government elections in the L.G.A. attached as Exhibit C is the claimant’s party card.”
This in my respectful interest is sufficient interest. He is a member of the Local Government a registered member of a political party and is interested in the conduct of the Local Government Election. He is clearly eligible to be sponsored for an elective post by his political party. He has also exhibited Exhibit B letter of his local government identification and Exhibit C his party card. In my opinion this is enough. I do not think only a political party should be able to challenge the law which impacts on the local government election Access to justice should not be like the eye of a needle otherwise justice would be stifled and the basis of democracy would be adversely affected. I therefore hold that the claimant at the lower court had locus standi to institute the action. I resolve this issue in favour of the respondent. .
In the circumstance this appeal succeeds in part. It is hereby allowed. The judgment of the lower court delivered on 21/2/2011 is hereby set aside. In its place I order that the originating summons of the claimant be struck out for want of jurisdiction.
Parties are to bear their respective costs.