INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS v. MURI EDET ETIM ASUQUO & ORS
(2013)LCN/6609(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/C/NAEA/102/2012
RATIO
PLEA OF ESTOPPEL: FACTS TO BE ESTABLISHED BY A PARTY SETTING UP THE DEFENCE OF ESTOPPELS PER REM JUDICATAM
For a plea of estoppels to succeed, a party relying on it must establish the following facts, namely: (a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same; (b) that the claim or issue in dispute in both proceedings are the same; (c) that the res or the subject matter of the litigation in the two cases is the same; (d) that the decision relied upon to support the plea is valid, subsisting and final; and (e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the defence of estoppels per rem judicatam to establish the above pre-conditions conclusively.
In the instant case, the Appellants did not raise this issue during trial. It is a defence, if proved, acts as a shield against future litigation.
It must be raised during trial. The only estoppel which the Appellant can raise is issue estoppel. However, the parties in both cases are not the same. Issue estoppels arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceedings between the same parties or their privies. See Oyerogbo Vs. Olaopa (1998) 13 NWLR Pt 583 page 509, Akujobi Vs. Ekanem (1999) 1 NWLR Pt 585 page 96, Ita Vs. Ekpe (2000) 2 SC page 98, Ebba Vs. Ogodo (2000) 6 SC Pt I page 133. PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENT ELECTORAL
3. COMMISSIONER, CROSS RIVER STATE Appellant(s)
AND
1. MURI EDET ETIM ASUQUO
2. CHIEF ANTIGHA A. COBHAM
3. CHIEF BASSEY EKPENYONG ETIM
4. CHIEF EFFIONG BASSEY IMAN (For themselves and on behalf of the People of Ikang Clan, Esighi Clan, Antigha Ene Eyo Clan of Bakassi Government Area) Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Calabar delivered on 23rd February, 2012. The Respondents here as Plaintiffs in the lower court had in their originating summons prayed the court for the determination of the following issues.
1. Whether the conduct of February, 2012 Elections in Bakassi and subsequent ones should be based on ward delineation based on the current Bakassi Local Government Area created pursuant to Law No. 7 or should be based on ward delineation based on Bakassi Local Government Area, as existed before the ceding of Bakassi to the Cameroun.
2. Whether given the decision of this Honourable Court in Suit No. FHC/CA/CS/41/2011 delivered on the 8th July, 2011 INEC can de-recognize the three wards of Ikang as Bakassi Local Government Area or do anything contrary to the Orders of the said Judgment.
Upon the determination of the above questions, the Plaintiffs now seek the following declarations or reliefs.
i. A Declaration that the Defendants conduct the upcoming February 25, 2012 Elections in Bakassi Local Government Area of Cross River State and subsequent ones in accordance with ward delineation based on the current Bakassi Local Government Area created pursuant to Law No. 7 of Cross River State House of Assembly and not based on the ward delineation as existed before the ceding of Bakassi to the Cameroun.
ii. A Declaration that given the decision of this Honourable Court in Suit No. FHC/CA/CS41/2011 delivered on the 8th July, 2011, the Defendants cannot disregard the three wards of Ikang as the current Bakassi Local Government Area or do anything contrary to the Orders of the said judgment.
The Respondent had filed a 26 paragraphs affidavit and a written address.
The Appellant as defendant filed a Counter Affidavit of 18 paragraphs together with their written address. Both counsel adopted their written address and the learned trial Judge delivered his considered judgment on 23rd February, 2012.
Being dissatisfied, the Appellant filed a notice and five grounds of appeal. Two other grounds were later filed.
The Appellants’ brief was filed on 5th July, 2013. In it the Appellants articulated four issues for determination. They are as follows:
1. WHETHER OR NOT law No. 7 of 2007 which the lower court based its judgment was enforceable, lifeless, in-abeyance and or inchoate, requiring the passing of a consequential act by the 2 Houses of the National Assembly for it to crystallize into an enforceable/operative law in view of sections 3 part I of the 1st schedule and 8(3), (5) & (6) of the 1999 constitution (as amended)?
2. WHETHER OR NOT the lower court was right when it entertained in suit No FHC/C/CA/21/2012 for the 2nd time the same issues it conclusively resolved in the earlier suit No FHC/C/CA/41/2011; Hon. JOE ETENE VS. INEC & ORS?
3. WHETHER OR NOT the creation and delineation and adjustment of the boundaries of the two local government in law No. 7 from where the 3 Ikang wards were created into 10 wards of Bakassi Local Government Area wherein the lower court ordered the appellant to conduct the February 23, 2012 governorship election was legal, proper, and constitutional, in view of section 112 and 115 of the constitution.
4. WHETHER OR NOT the judgment/order of the lower court in which the appellants were ordered to conduct the governorship election in the 10 new wards of Bakassi Local Area created from the old 3 Ikang wards in Akpabuyo Local government Area was not illegal and also incapable of execution having regard to the fact that, the law upon which it was based as at the date judgment on FHC/C/CA/21/2012 was entered was lifeless, inchoate and unenforceable having regards to sections 8(5) and (6) and section 3(6) of the 1999 constitution (as amended).
The Respondents filed their Respondents’ brief on 8th August, 2012 and adopted the issues formulated by the Appellants for determination.
It appears from the arguments on the issues, that the Appellants have abandoned issues 3 and 4. Both issues are therefore struck out. See Agbo Vs. State 2006 All FWLR Pt 309 page 1380 where the Supreme Court held that:
“Any issue on which no argument has been preferred is deemed abandoned, in the instant case, no arguments were canvassed in the appellant brief in respect of issue 2, it is therefore deemed abandoned, accordingly struck out and dismissed”
ISSUE 1
Learned Counsel to the Appellant Chief Utum Eteng submitted that:
“it is clear from the EXHIBITS attached to the Originating Summons in FHC/CA/CS/21/2012 that law No. 7 of 2007 is about the creation of a new Bakassi Local Government Area retaining the old Bakassi name, it is also about ward delineation, about voters registration for the general elections. It is about the adjustment of the boundaries, of Akpabuyo Local Government Area to accommodate Bakassi Local Government Area and by direct implication the two state constituencies. See section 1 of law No. 7”.
With the foregoing, the learned counsel argued that the order of the lower court to the Appellants to conduct the gubernatorial Election of 25th Febtuary, 2012 in new Bakassi Local Government Area based on the ten new electoral wards in the schedule to Law No. 7 in the absence of confirmation by the NASS was a nullity. Counsel referred the court to the Supreme Court case of Attorney General of Lagos State Vs Attorney General Federation (2005) 1 MJSC page 1 where Uwais CJN (as he then was) stated as follows:
“When those sections are read together what emerges is that the passing of a bill by a House of Assembly creating a Local Government Counsel in accordance with section 8 subsection (3) of the constitution is not enough, they will have to go a step further by submitting returns to the National Assembly which in turn will have to amend section 3(6) of the constitution for the new Local Government Area to be accommodated by the constitution.”
In other words, the exercise by the state House of Assembly in passing the necessary bill creating a new local government Area is inchoate as submitted by Chief Afe Babalola. SAN.
The CJN went further to say:
“I therefore come to the conclusion that the passing of the Local Government Areas Law, N3 of 2002 by the Lagos State House of Assembly was not sufficient to give life to the new Local Government Areas until National Assembly passes the consequential Act amending the subsection (3) and 6 and part of the first schedule to the constitution.”
Counsel argued that this procedure ought to have been followed by the Cross River State Government in the creation of new Bakassi.
Counsel argued that compliance of the holding of the Supreme Court is what would give legitimacy to the Cross River State Law No. 7. Counsel submitted that the boundary adjustments and the council wards made in Law No. 7 are also in abeyance. The order of the lower Court to conduct election in those wards is null and void. The Supreme Court in Attorney General of Lagos State Vs. Attorney General of the Federation (supra) held also.
“A state which desires to create a new Local Government Council can only do so after complying with the provisions of section 8(3) and (6) of the 1999 constitution.”
Counsel re-iterated that when a statute makes provision for the method of performing an act, it is only that method as provided that must be followed for the act to be statutorily valid. Counsel referred the court to the concurrent judgment of Kutigi JSC (as he then was) in Attorney General of Lagos State Vs. Attorney General of the Federation (supra):
“I have therefore no difficulty whatsoever in coming to the conclusion that Lagos State law No. 5 of 2002 is unquestionably constitutional and valid having completed with the provision of sections 7(1) and 8(5) of the Local Government Areas are in abeyance, until after the completion of the second or federal tier procedure by the National Assembly as stated above. In other words, the state law cannot take effect without or before a Federal law enacted pursuant to section 8 (5)”. P.62.
Counsel therefore urged the court to hold that Cross River State Law No. 7 of 2007 though properly enacted by the Cross River State House of Assembly is incomplete. Its provisions are in abeyance and the judgment of the lower court without legal basis.
In reply the Respondents referred the court to the wordings of Law No. 7 which reads thus:
“The boundaries of Akpabuyo Local Government Area and Bakassi Local Government Area are hereby adjusted as follows:
(a) Ikang North ward in in Akpabuyo Local Government Area shall be a ward in Bakassi Local Government Area.
(b) Ikang Central Ward in Akpabuyo Local Government Area shall be a ward in Bakassi Local Government Area
(c) Ikang South Ward in Akpabuyo Local Government Area shall be a ward in Bakassi Local Government Area.”
Counsel submitted that the question that will resolve this issue is whether Law No. 7 under reference amounts to creation of New Local Government Area by the Cross River State House of Assembly and therefore requires compliance with section 8(5) and 3(6) of the 1999 Constitution (as amended) or a mere adjustment of the boundaries of existing Local Government Area requiring compliance with Section 4(7) and 8(4) of the 1999 constitution. For ease of reference Counsel reproduced the provisions of Section 3(6), Section 8(4) and section 4(7) of the 1999 Constitution (as amended).
SECTION 8(5)
An act of the National Assembly passed in accordance with this section shall make consequential provisions with respect to the names and headquarters of States or Local Government Areas as provided in Section 3 of this Constitution and in Parts 1 and 11 of the First Schedule to this Constitution.
SECTION 3 (6)
There shall be seven hundred and sixty-eight Local Government Areas in Nigeria as shown in the second column of councils as shown in part 11 of that schedule.
SECTION 4(7)
The House of Assembly of a State shall have power to make laws for the peace, or and good government of the State or any part thereof with respect to the following matters, that is to say:
(a) Any matter not included in the exclusive legislative list set out in part 1 of the Second schedule to this constitution;
(b) Any matter included in the concurrent legislative list set out in the first column of Part 11 of the Second schedule to this Constitution to the extent prescribed in the second column opposite thereto; and;
(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
SECTTON 8(4)
A bill for a law of a House of Assembly for the purpose of boundary adjustment of any existing Local Government Area shall only be passed if-
(a) A request for the boundary adjustment is supported by two thirds majority of members (representing the area demanding and the area affected by the boundary adjustment) in each of the following namely:
(i) The House of Assembly in respect of the area, and
(ii) The Local government Council in respect of the Area;
(b) A proposal for the boundary adjustment is approved by a simple majority of members of the House of Assembly in respect of the area concerned.
To properly relate law No. 7 under reference to the appropriate constitutional provision which enabled it in other to determine whether it is “creation” or “adjustment”, a recap of its long title and the short title will be quite elucidating.
The long title of law No. 7 of 2007 by the Cross River State House of Assembly States.
“A law to make provision for the adjustment of the boundaries of Akpabuyo Local government Area and Bakassi Local Government Area and for other matters connected therewith”
The short title of the said law reads:
“this law may be cited as the Akpabuyo and Bakassi Local government Area boundary (Adjustment) law 2006”
Counsel submitted that the case of Attorney General of Lagos State Vs. Attorney General of the Federation (supra) relied on by the Appellants is inapplicable to the instant case. In the case of Lagos State, 57 new Local Government Areas were created in addition to the existing Local Government Areas in Lagos State with the ultimate effect of changing the number of Local Government Area in Lagos State and therefore Nigeria.
However, in the case of Cross River State the number of Local Government Area was 18 and after the adjustment it still stood at 18. Law No. 7 of Cross River State has not caused any change or alteration in the existing number of Local Government Areas in Cross River State or Nigeria for that matter to require a constitutional amendment to reflect the number of Local Government Areas in Nigeria. The case of Lagos State is different and cannot be used as a precedent in this case.
Counsel urged the court to discountenance the submissions of the Appellants and hold that Law No. 7 of Cross River State is not inchoate and does not require any further amendment of the constitution to become fully operative.
Law No. 7 of Cross River State was enacted by the Cross River State House of Assembly and signed into law by the Governor of that State. The Law in effect sought to adjust, the Bakassi Local movement Area of which part was ceded to the Camerouns. The Appellants’ counsel did not state that it was not enacted by the due process of law. However the Appellants argued that for Law No. 7 to have the full force of the law, it must go through, both houses of the National Assembly. I think that this idea was misconceived and wrongly interpreted by the Appellants. The Appellants in their submissions also referred the court to the case of Attorney General of Lagos State Vs. Attorney General of the Federation (supra). This case is not on all fours with the instant case. In the case of Lagos state, a number of new Local government Areas were created in addition to the existing ones. It therefore increased the number of the Local Government Areas in Lagos state and consequently that of Nigeria. This is quite different to what law No. 7 sought to do. Law No. 7 Cross River State just merged the remaining parts of Old Bakassi Local Government Area with three wards from Akpabuyo Local Government Area to the remaining parts of Old Bakassi. There was no increase in the number of Local Government Areas already existing in Cross River State.
Law No. 7 also delineated wards for ease of voters registration for the general elections. It is also about boundary adjustment of the boundaries of Akpabuyo Local government Area to accommodate the New Bakassi Local Government Area and by direct implication the two state constituencies.
Under Section 4 (7) and Section 8(4) the Cross River State House of Assembly was in order enacting Law No. 7 to take cognizance of the ceded parts of Old Bakassi Local Government Area and to make the necessary adjustments.
This Law was to take care of the people of the remaining Bakassi in terms of their inelienable rights of choosing their representatives. The appellants also are empowered to delineate electoral wards and adjust them where appropriate for their own administrative purposes without reference to the 1999 constitution.
I therefore resolve this issue against the Appellants. Law No. 7 Cross River State 2007 does not require any further National Assembly enactment for it to be enforceable in law.
ISSUE 2
The learned counsel to the Appellants submitted that the court ought to have declined jurisdiction on the grounds of issue estoppel against the parties. Counsel argued that the trial court had earlier in suit No FHC/CA/CS/41/2011 dealt with the issues of Law No. 7 Cross River State 2007 and therefore should have refused to entertain the same issues in suit No FHC/CA/CS/21/2012.
In reply counsel for the Respondents submitted and urged the court to strike out this issue. This is a fresh issue and it requires the leave of court for it to be competent. Counsel argued that it is trite law, that raising fresh issues on appeal which did not come before the trial court the Appellant requires leave of court.
The issue whether suit No FHC/CA/CS/21/2012 constitutes estoppel was not made an issue at the trial court. See Ogundele Vs Agiri (2010) All FWLR Pt 507 page 1 where the Supreme Court held:
“An issue is said to be extraneous when it was neither raised nor canvassed at the trial court on pleadings and in the evidence of the parties”.
On the treatment of such issues this court held in Makinde Vs. Adeogun (2010) All FWLR Pt 522 page 1753 that:
“Issues for determination which do not arise from judgment appealed against are incompetent and must equally be discontented. In the instant appeal appellant issues are not related to the judgment of the tribunal being appealed against and were therefore’ rightly struck out.”
See Hinter land resources Ltd vs. Fixity Investment Ltd (2007) All FWLR Pt 355 page 487.
Counsel therefore urged the court to hold that the Appellants require the leave of court to raise for the first time on appeal the issue of issue estoppel.
A question which was not raised at the lower court cannot be raised in the Appellate court for the first time without the leave of court Asims (Nig) Ltd Vs. LBRB Dev. Authority (2002) 8 NWLR Pt769 page 349.
However
For a plea of estoppels to succeed, a party relying on it must establish the following facts, namely: (a) that the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same; (b) that the claim or issue in dispute in both proceedings are the same; (c) that the res or the subject matter of the litigation in the two cases is the same; (d) that the decision relied upon to support the plea is valid, subsisting and final; and (e) that the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the defence of estoppels per rem judicatam to establish the above pre-conditions conclusively.
In the instant case, the Appellants did not raise this issue during trial. It is a defence, if proved, acts as a shield against future litigation.
It must be raised during trial. The only estoppel which the Appellant can raise is issue estoppel. However, the parties in both cases are not the same. Issue estoppels arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceedings between the same parties or their privies. See Oyerogbo Vs. Olaopa (1998) 13 NWLR Pt 583 page 509, Akujobi Vs. Ekanem (1999) 1 NWLR Pt 585 page 96, Ita Vs. Ekpe (2000) 2 SC page 98, Ebba Vs. Ogodo (2000) 6 SC Pt I page 133.
The parties in both cases are not the same for the plea of estoppels to avail the Appellants. See the parties here under:
For the avoidance of doubt and ease of reference, the parties in FHC/C/CS/41/11 are:
HON (BARR) JOE ETENE
AND
(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(2) THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE.
While the parties in Suit No. FHC/CA/CS/21/12 are:
(1) MURI EDET ETIM ASUQUO
(2) CHIEF ANTIGHA A. COBHAM
(3) CHIEF BASSEY EKPENYONG ETIM
(4) CHIEF EFFIONG BASSEY IMAN
(for themselves and on behalf of the people of Ikang Clan, Esighi Clan, Antigha Ene Eyo Clan And Edihi Idim Ikot Eyi Clan of Bakassi Local Government Area).
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE.
It is obvious that the parties are not the same and therefore issue estoppels cannot avail the Appellants. This issue is also resolved against the Appellants. Both issues articulated by the Appellant have both been resolved against them.
This appeal is lacking in merit and therefore dismissed. I also make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother Uzo I. Ndukwe-Anyanwu, JCA, in this appeal.
I completely agree with the conclusion for the reasons set out therein, that the appeal, on the Issues 1 and 2 argued by the Appellants, is bereft of merit and deserved to be dismissed. I join in dismissing the appeal in terms of the lead judgment.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in draft, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA, dismissing this appeal. I completely agree with the reasoning and the conclusions reached, and have nothing further to add.
I abide by the Orders made in the lead Judgment.
Appearances
Chief (Barr) Utum Eteng, Esq.For Appellant
AND
W. S. Ogar Esq.For Respondent
