OTUNBA JUSTUS OLUGBENGA DANIEL & ANOR v. SENATOR IBIKUNLE AMOSUN & ORS.
(2018)LCN/12271(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of April, 2009
CA/I/EPT/FHC/CS/84/08
RATIO
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“I will determine the issue of jurisdiction which was raised timeously by the first defendant in the lower court. It is the root or foundation of every matter. Being very fundamental it can be raised at any stage of the proceedings, in the High court, court of Appeal and the supreme court by any of the parties or by the court itself “suo motu” See EZOMO V. OYAKHIRE (1985) 1 NWLR (PART 2) 195 and SAUDE V. ABDULLAHI (1989) 4 NWLR (PART 115) 387. In the present case the issue of jurisdiction was raised in the lower court and in this Court in answer to the referral. Jurisdiction is the power of a Court to adjudicate over a matter before it. It is vital in the administration of justice, and fundamental for the competence of the court to adjudicate over the matter. If the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided. See MADUKOLU V. NKEMDILIM 1962 1 ALL NLR 587: (1952) 2 SCNLR 341.” PER CHIDI NWAOMA UWA, J.C.A.
INTERPRETATION: LITERAL INTERPRETATION OF STATUTE
“Statutes and more especially the constitution must be interpreted in a liberal and simple manner so as not to defeat the real intention of the lawmakers. Statutes must be read as a whole so as not to lose the real meaning of the provisions. The Supreme Court, in NBN LTD V. WEIDE & CO. (NIG.) LTD. (1996) 8 NWLR (PART 465) 150 AT 155 pronounced thus: ‘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’ o see ABIOYE V. YAKUBU (1991) 5 NWLR (PART 190) 130; A-G, BENDEL STATE V. A-G, FEDERATION (1982) 3 NCLR 1.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. OTUNBA JUSTUS OLUGBENGA DANIEL
2. PEOPLE’S DEMOCMTIC PARTY Appellant(s)
AND
1. SENATOR IBIKUNLE AMOSUN
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE PRESIDENT, COURT OF APEPAL Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling):
The matter came to this Court by way of a Constitutional reference pursuant to the provisions of Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999.
On the 14th day of April, 2007, the Independent National Electoral Commission (INEC), the 2nd defendant conducted the Governorship Elections in various states of the Federation including Ogun State where the plaintiff, Otunba Justus Olugbenga Daniel and the 1st defendant Senator Ibikunle Amosun contested the said Governorship Election on the platforms of the Peoples Democratic Party, PDP and the All Nigerian Peoples Party, ANPP respectively.
After the election, the 2nd defendant declared the 1st plaintiff of the 2nd plaintiff political party the winner and subsequently issued a certificate of return to the 1st plaintiff. The first defendant was aggrieved by the declaration of the 1st plaintiff as the winner of the election by the second defendant. The 1st defendant then filed a petition at the Ogun State Governorship and Legislative Houses Election Petition Tribunal in Petition No. EPT/OG/Gov/2/2007, challenging the result of the election and the declaration of the 1st plaintiff as the winner.
On 19th October, 2008, the Ogun State Governorship and Legislative Houses Election Petition Tribunal, (The Tribunal) dismissed the 1st defendant’s petition on the ground that the 1st defendant lacked the ‘locus standi’ to file and sustain the petition.
The 1st defendant being dissatisfied with the decision of the Tribunal, appealed to the Court of Appeal. On 13th March 2008, the Court of Appeal allowed the 1st Defendant’s appeal and made the following orders:
“(a) That the substantive appeal be and is hereby allowed;
(a) That an order striking out the petition is hereby set aside;
(b) That the petition is hereby remitted to the Ogun State Legislative House and Governorship Election Tribunal for hearing and determination on the merit.”
After the delivery of the judgment, the 1st Defendant wrote a letter to the 3r defendant (The president, Court of appeal) dated 11th April 2008, Exhibit “OGD 4” in which various allegations were made, on the basis of the complaints, requested the 3rd Defendant to set up another panel of the Tribunal to hear his petition as he had lost confidence in the Tribunal to do justice to his case, in the 3r Defendant’s capacity as the appointing authority to constitute a fresh panel to hear his petition. Thereafter, the 3rd Defendant wrote a letter dated 18th April, 2008 (Exhibit “OGD5”) and agreed to constitute another panel once the incumbent panel wound up. The said letter is said to have been made available to the Tribunal in the open court on 24th April, 2008. Learned counsel on both sides addressed to the Tribunal concerning the reply from the 3rd defendant. The Tribunal then ruled as follows:
“In view of the contents of the letter from the President of the Court of Appeal addressed to the petitioner and copied to us for our attention, we are of the view that the letter is self explanatory and in the circumstances we do not intend to take any further steps in the case. Any other proceedings in this petition have to await the directives of the President of the Court of Appeal.”
It was further held thus:
“We therefore adjourn the matter sine die pending the said directives”‘
The 1st Plaintiff was aggrieved by the correspondences between the 1st and 3rd Defendants and the 3rd Defendant’s decision to set up another panel of the Tribunal, because he was not part of the correspondences, plaintiffs said they were entitled to react to the allegations in the 11/4/08 and the reply of 18/4/08. He said it would have had the decision of the 3rd Defendant as to whether he should set up the panel of the Tribunal or not.
In a letter dated 22nd April 2008 the 1st Defendant responded to the Defendant’s letter of 18th April 2009 where he accepted the option given to him by the 3rd Defendant of waiting till the existing Tribunal concludes its duty in Ogun State for a newly constituted Tribunal to hear the petition. A copy of the letter is said to have been given to the Plaintiff, Prof. Taiwo Osipitan (SAN) by the 1st Defendant’s counsel Wole Esq. at the Tribunal on 24th April 2008. It is against these found facts that the plaintiffs filed the instant suit in the lower court was instituted by way of Originating Summons on 29th April 2008, amended. The Amended Originating Summons was dated 21st May, 2008 in the Amended originating summons the following questions were or determination by the lower court:
“1. whether having regard to the provisions of Sections 246(3) and 287 (2) of the Constitution of the Federal ‘Republic of Nigeria 1999 the 1st Defendant and the 3rd Defendant in the exercise of his power under Section 285(2) and paragraph 2(3) of the 6th schedule of the Constitution ire not bound to comply with and enforce the order of the court of Appeal as embodied in its judgment in appeal No:CA/I/EPT/GOV/10/07 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION AND OTHERS.
2. Is the right to an accelerated hearing of an election petition which is afforded by Section 148 of the Electoral Act 2006 only for the benefit of the petitioner and to the exclusion of the Respondents?
3. Whether having regard to the answer to question 2 above the decision of the 3rd Defendant to set up another Panel of the Governorship and Legislative Houses Election Tribunal to hear the 1st Defendant’s Petition No.EPT.OG/GOV/2/2007 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & OTHERS as contained in the 3rd Defendant’s letter dated 18th April 2008 Pursuant to complaints lodged by the 1st Defendant with the 3rd Defendant in the 1st Defendant letter dated 11th April is not in violation of the plaintiff’s right to fair hearing under the rules of natural justice and the provisions of Section 36(1) of the 1999 constitution because of the failure of the 3rd Defendant to afford the plaintiff an opportunity to make representations to him on the 1st Defendant’s complaints before reaching the decision.
4. Whether having regard to the provision of section 140(3) of the electoral Act 2006 the decision of the 3rd Defendants to set up another panel to hear the election petition of the 1st Defendant after the present Ogun State Governorship and Legislative Houses election Tribunal has finished , its work It not illegal null and void.”
The Plaintiffs prayed the Federal High Court for the following orders:
“1. A DECLARATION that by virtue of the provisions of Sections 246(3) and 287(2) of the Constitution of the Federal Republic of Nigeria 1999 the 1st and 3rd Defendants are bound to comply with and enforce the order of the Court of Appeal as embodied in its judgment given on 13th March 2008 in appeal No. CA/I/EPT/GOV/10/07 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTOML COMMISSION & OTHERS directing that the 1st Defendant’s Petition No.EPT/OG/GOV/2/2007 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & OTHERS be “remitted to the Ogun State Legislative Houses and Governorship Election Tribunal for hearing and determination on the merit”.
2. A DECLARATION that the right to an accelerated hearing of an election petition which is afforded by Section 148 of the electoral Act 2006 is for the benefit of the Petitioner and the Defendants in an election petition.
3. A DECLARATION that the decision of the 3rd Defendant to set up another Panel of the Governorship and Legislative Houses Election Tribunal to hear the 1st Defendant’s Petition No. EPT/OG/GOV/2/2007 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & OTHERS as contained in his letter of 18th April 2008 pursuant to the complaints of the 1st Defendant as contained in his letter of 11th April 2008 which decision was reached by the 3rd Defendant without first affording the Plaintiffs an opportunity of making representations to him is contrary to the rules of natural justice and the Plaintiffs’ guaranteed right to a fair hearing under section 36(1) of the 1999 Constitution and consequently is unlawful null and void.
4. A DECLARATION that the decision of the 3rd Defendant contained in his letter of 18th April 2008 which is Exhibit OGD-4 in this proceedings to set up another panel of the Ogun State Governorship and Legislative Houses Election Tribunal to hear the 1st Defendant’s election petition No.EPT/OG/GOV/2/2007: SENATOR IKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISION & OTHER after the present Ogun State Governorship and Legislative Houses Election Tribunal has finished its work is contrary to the provision of Section 140(3) of the Electoral Act 2006 and accordingly is illegal null and void.
5. AN INJUNCTION restraining the 3rd Defendant from giving effect to his decision to set up another panel of the Ogun State Governorship and Legislative Houses Election Tribunal to hear the 1st Defendant’s Petition No.EPT/OG/GOV/2/2007 SENATOR IKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISION & OTHERS as contained in his letter dated 18th April, 2008.”
In response, the 1st Defendant filed a counter-Affidavit to the Affidavit in support of the originating summons on 9th May, z00B and a Notice of Preliminary objection also dated 9th May, 2008. The 2nd Defendant did not file any counter-affidavit but was represented by counsel whilst the 3rd Defendant neither filed any process nor was he represented by counsel throughout the proceedings. When the matter came up for hearing on 14th May, 2008, the parties agreed that the 1st Defendant’s Objection be argued with the substantive suit and that written addresses be filed. The case was thereafter adjourned to 17th June 2008 for adoption of the written addresses. Before hearing could commence, the plaintiffs filed an application pursuant to section 295(2) of the 1999 Constitution seeking an order that the five questions contained in the schedule to the motion be referred to the Court of Appeal to determine. Five questions arose from the plaintiff’s Amended Originating Summons and the 1st Defendant’s preliminary objection. The application for constitutional reference was opposed by the 1st Defendant but supported by the 2nd Defendant. Full arguments were taken in the preliminary objection and the application for reference to the Court of Appeal and, in a reserved ruling of 8th July 2008, the order was granted and the Federal High Court assumed jurisdiction to hear the substantive case by taking a decision on the motion for referral, and went ahead to grant the prayers and referred the Plaintiffs’ five questions to this Court.
The five questions referred to this Court by the Federal High Court are as follows:
“1. Whether the Federal High Court has jurisdiction under Section 251(1)(r) of the 1999 Constitution to entertain the plaintiffs’ action challenging the 3rd Defendant’s decision, made pursuant to section 285(2) of the Constitution, to set up another panel of the Ogun State Governorship and Legislative Houses Election Tribunal to hear the 1st Defendant’s petition No. EPT/OG/GOV/2/2007 (as contained in the 3rd Defendant’s letter of 18th April, 2008 Exhibit OGD-5 written pursuant to the 1st Defendant’s letter of 11th April, 2008 – Exhibit OGD-4) on the grounds of violation of the rules of natural justice, Section 36(1) of the 1999 Constitution and Section 140(3) of the Electoral Act, 2006.
2. Whether on a proper application of the Defendant can, in the exercise of his powers of the Ogun State Governorship and legislative Houses Election Tribunal pursuant to the complaints of the 1st Defendant as contained in his letter of 11th April, 2008 – Exhibit OGD-4 without first affording the plaintiffs an opportunity of making representations to him.
3. Whether on a proper application of the provisions of Section 285(2) of the 1999 Constitution and paragraph 2(1) and (3) of the Ogun State Governorship and Legislative Housel Election Tribunal after the conclusion of the Governorship Election.
4. Whether the decision of the President of the Administrative Constitutional Power by the President of the Court of Appeal.
5. Assuming the decision of the president of the Court of Appeal to set up another panel to hear the petition is a judicial decision whether the decision of one Justice of the Court of Appeal (President) made under Section 285(2) of the Constitution can override the decision of five justices of the Court of Appeal on the same issue given pursuant to Section 246(1) and (3) of the Constitution.”
The Plaintiffs in their joint brief of argument filed on 24/10/08 argued -he questions as raised in the referral.
In response to the plaintiffs’ brief of argument, the 1st Defendant filed his brief of argument on 20/11/08 and raised the following issues in respect of the referral:
“(i) Whether the lower court had the competence and/or the jurisdiction to have assumed jurisdiction in the substantive case upon which the order of referral dated 8th august, 2008 could have been made having regard to the provisions of Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria 1999.
(ii) Whether the questions had been properly referred to this Honourable Court, pursuant to the provisions of section 295(2) of the 1999 Constitution in a manner as to make it fit to evoke an answer from this Honourable Court, to the questions referred.
(iii) Whether the decision of the 3rd defendant to constitute or set up a fresh panel of the Ogun State legislative houses and Governorship election Tribunal to hear and determine the 1st defendant/respondent’s petition breaches, infringes on or violates the plaintiffs right to fair hearing under section 36(i) of the constitution of the Federal Republic of Nigeria 1999 and section 140(3) of the electoral Act 2006.
(iv) Whether the decision of this Honourable court made on 13th March, 2008 is a bar to the administrative powers and function of the 3rd defendant derived under the provisions of section 285(2) and paragraph 2(3) of the 6th schedule to the constitution of the Federal Republic of Nigeria 1999.”
The second defendant (INEC) filed their brief of argument on 10/12/08, deemed as properly filed and served on 5/11/09- The five questions referred to this court were argued as raised, same as adopted by the Plaintiffs.
The 3rd Defendant did not file any brief of argument.
When this matter came up for argument, the learned Senior Counsel Tayo Oyetibo (SAN) for the Plaintiffs adopted the brief filed on behalf of the plaintiffs on 24/10/08 and the reply brief filed on 19/1/09 in which he had a Notice of Preliminary Objection. In the objection, it was submitted that the four issues for determination as raised in the 1st defendant’s brief dated 20th November, 2008 as well as all the arguments on the 1st defendant’s issue 2 are incompetent. The learned Senior Counsel argued that the Court of Appeal lacks the jurisdiction to entertain in a Constitutional reference questions which are different from those referred to it from the lower court. It was argued that S.295(2) of the 1999 Constitution provides for the type of jurisdiction which the Court of Appeal could exercise which learned Senior Counsel argued is limited to a decision upon the question or questions referred to it, therefore that parties cannot frame or submit any question or questions different from those referred to the Court by the Court below and relied upon and cited the case of TOGUN v. OPUTA (No.1) (2001) 16 NWLR (pt.740) p.577. We were urged to strike out the four issues for determination submitted by the 1st defendant and all the argument in their support to be discountenanced.
The second leg of the arguments on the objection is in respect of the argument canvassed by the 1st Defendant under his issue two, learned Senior Counsel submitted that the arguments amount to an appeal against the constitutional reference. The issue raised by the 1st defendant in his second issue is as to whether the questions had been properly referred to this Court, pursuant to the provisions of S.295(2) of the 1999 Constitution in a manner as to make it fit to evoke an answer from this Court, to the questions referred. The case of LABOUR PARTY V. INEC (2008) 13 NWLR (PT.1103) 73 was relied upon. All the arguments in the reply had been raised and argued in the Plaintiffs’ brief of argument; there is no need for their review.
In respect of the 1st Defendant’s special prayer, for us to invoke S.16 of the Court of Appeal Act, 2004, learned Senior Counsel for the Plaintiffs urged us to reject it, as it amounts to a violation of the provision of S.295(2) of the Constitution.
In respect of the referral, the learned Senior Counsel for the Plaintiffs in the first question submitted that the question arose from the preliminary objection filed by the 1st defendant. It was argued that the pertinent question is: whether the Federal High Court can entertain a complaint that the exercise of the 3rd Defendant’s power under S.285(2) is in violation of S.36(1) of the 1999 Constitution and s.140(3) of the Electoral Act 2006? It was submitted that the 2nd and 3rd Defendants are Federal Government Agencies and that s. 251(1)(r) of the 1999 constitution empowers the Federal High court to entertain civil causes in challenge of the actions of the agencies, the case of NEPA V. EDEGBENRO (2002) 18 NWLR (PT.798) 78 was relied upon. The learned counsel conceded that what is being challenged in the plaintiffs’ action is the administrative decision of the 3rd Defendant’s as opposed to a judicial decision. In further argument, the learned counsel distinguished the office of the President of the court of Appeal and the Court of Appeal itself, and the extent of the powers of each, citing s. 247(1) which states the powers of the court of Appeal as against s.285(2) and paragraph 2(3) of the sixth schedule to the constitution which states the powers of the President of the court of Appeal.
It was submitted that the 3rd Defendant is therefore like any other statutory body in whom statutory duties has been vested and as such amenable to the supervisory jurisdiction of the High Court. In other words’ that the protection the 3rd defendant enjoys under judicial review by the court below while exercising the powers of the court of Appeal does not extend in any way whatsoever to him while exercising his power under S.285(2) of the constitution. He relied on the case of ANYA V. IYAYI (1988) 3 NWLR (PT.82) 359. He argued that the power of the 3rd Defendant in issue is a constitutional power and except where expressly provided by the constitution itself, the exercise of every constitutional power is subject to judicial review by the court either in the exercise of appellate or original jurisdiction. Learned senior counsel submitted that it cannot be questioned by way of an appeal, not being a decision or exercise of power by the court of Appeal, that the only forum open to the plaintiffs to question the act is the court below and relied on the cases of ADIGUN v. A.G. OYO STATE (1987) 1 NWLR (PART 53) 678 and A.G. Lagos State v. Eko Hotels Ltd (1006) 18 NWLR (Pt.1011) 378.
Further that S.287(2) of the constitution under which the Federal High court is empowered to enforce the decisions of the court of Appeal as embodied in its judgment delivered on 13th March 2008 in CA/I/EPT/GOV/10/70, whereby the 1st Defendant’s petition was remitted to the Tribunal for hearing and determination on the merit that all the plaintiffs sought to enforce is the judgment of the court of Appeal in the above judgment, and not by another panel of the Tribunal as proposed by the 3r Defendant in Exhibit OGD-s (page 295 of the record) on the complaints of the 1st Defendant contained in Exhibit OGD-4 (Pages 291-294). Learned senior counsel submitted that by constituting another panel of the Tribunal the 3rd Defendant violated S.36(1) of the Constitution and S.148 of the Electoral Act, 2006 and that S.6(6)(b) of the constitution fortifies the power of the Federal High court to review the exercise of the power of the 3rd Defendant under 5.285(2) of the Constitution. The case DR. OLU ONAGORUWA V. HON. MR. JUSTICE O. NWOKEDI & ORS (1982) 3 NCLR VOL. 3, 547 refers. We were urged to hold that the Federal High Court and jurisdiction to entertain the plaintiffs’ action.
The second question raised in the referral is whether the 3rd Defendant in exercise of his powers under S.285(2) of the constitution could lawfully set up another panel of the Tribunal pursuant to the complaints of the 1st Defendant as contained in Exhibit OGD-4 without hearing the plaintiffs, considering the provisions of s. 35(1) of the 1999 constitution and s.148 of the Electoral Act which was argued, are for the benefit of both Parties and the public, that is, that accelerated hearing is for the benefit of both parties and the public. See HARUNA ABUBAKAR V. INEC (2004) 1 NWLR (PT.854) 207.
With reference to paragraph B of the supporting affidavit to the Amended Originating Summons (pages 291-294 of the record) in which the contents of Exhibit OGD-4 which prayed the 3rd Defendant to set up another panel, it was argued that the 3rd Defendant should have conferred with the plaintiffs before taking a decision on the complaint of the 1st Defendant in Exhibit OGD-4, which would have been fairer to the Plaintiffs and relied on the case of HART V. MILITARY GOVERNOR, RIVERS STATE & ORS (1976) 10 NSCC 622. The Principle of “Audi alteram partem” was stressed while relying on the following cases amongst others: ONITIRI V. BENSON (1960) SC NLR 314, ANOZODO V. AUDU (1999) 4 NWLR (PT.600) 530, HART V. MILITARY GOVERNOR, RIVERS STATE & ORS (1976) 10 NSCC 622.
Learned Senior Counsel to the plaintiffs drew a distinction between the powers of the president of the court of Appeal (3rd Defendant) under s.285(2) and paragraph 2(3) of the sixth schedule to the constitution on one hand and the power vested in a chief Judge to transfer cases from one Judge to another in the exercise of his administrative powers on the other hand. Learned senior counsel submitted that the actions of the 3rd Defendant was unfair to the plaintiffs who were not heard before agreeing to set up a new panel as stated in Exhibit OGD-s. He said the Plaintiffs are also entitled to accelerated hearing pursuant to s. 148 of the Electoral Act, being denied them by the proposed constitution of a new panel. The following cases were relied upon: OLATUNBOSUN V. NISER (1988) 3 NWLR (PT.80) 25, OYEYEMI COMMISSIONER FOR LOCAL GOVERNMENT (1992) 2 NWLR (PT.226) 661, and ADENIYI V. GOVERNING COUNCIL YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT.300) 426 amongst others. We were urged to hold that the 3d Defendant has a duty to act fairly in considering the complaints and prayers of the 1st Defendant in Exhibit OGD-4 of the letter of 11th April, 2008 and that the 3rd Defendant ought to have given the Plaintiffs an opportunity to make representations before taking a decision on the prayer of the 1st Defendant that another panel of the Tribunal be set up to hear his petition.
On the third question, whether on a proper application of the provision S, 285(2) and paragraph 2(1) and (3) of the 6th Schedule of the constitution, also in s.140(3) of the Electoral Act, 2006 the 3rd Defendant could lawfully set up another panel of the Tribunal in Ogun state after the conclusion of the Governorship Election. It was submitted by the learned senior counsel for the plaintiffs that a literal interpretation of s.285(2) stems from the opening words which says “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…” means that the president could set up one Tribunal or numerous Tribunals for each state, and that the 3rd Defendant chose to constitute only one Tribunal in Ogun state as contained in Exhibit OGD-6 (pages 296-297 of the record).
It was argued that by virtue of the Provision of S.140(3)of the Electoral Act Election Tribunals should be constituted 14 days before the erection. Learned senior counsel submitted that the provision is clear and unambiguous and should be given its plain and literal meaning, and relied the cases of EGBE V. YUSUF (1992) 6 NWLR (PT.245) 1; also ORIOLA V. WILLIAMS (1982) 7 SC 27 and A-G ONDO STATE V. A.G. FEDERATION (2002) 9 NWLR (PT.772) 222. It was submitted that vice the President of the Court of Appeal exercises his power under paragraph 2(3) of the sixth schedule to the constitution to constitute the chairman and members, he has exhausted his jurisdiction and cannot exercise another power to constitute another tribunal after the conclusion of the election. It was argued that the 3rd defendant cannot justify the Constitution of another Tribunal after the conclusion of the election, and that his power to do so ought to be traceable to a statute or the constitution. It was submitted that there is no doubt the disputed election took place on 14th April, 2007. learned senior counsel relied on the case of PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. E. O. EJITAGHA (2002) 11 NWLR (PT.677) 154.
In conclusion on this question the learned senior counsel submitted that the legal consequence of constituting or setting up an Election Tribunal after the conduct of the election is that such Tribunal is illegal null void and that where a statute prescribed the time within which an act is to be done, as in S.140(3) of the Electoral Act, failure to do the act within the prescribed period renders the act null and void. The case of IFEZUE V. MBADUGHA (1984) 15 NSCC 314 was relied on, as well as EBOIGBE V. NNPC (1994) 5 NWLR (PT.347) 649, MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 NWLR (PT.745) 295 and KAUGOMA V. INEC (1993) 3 NWLR (PT.284) 681.
We were urged to hold that it is illegal for the 3rd Defendant to set up another Tribunal to hear the 1st Defendant’s petition after the conclusion of the Governorship election.
The learned Senior Counsel for the plaintiffs argued the fourth and fifth questions together because they are inter-related. Question four sought to know whether the decision of the 3rd Defendant to set up another Panel is a judicial decision of the court of appeal, therefore final, within the meaning of S. 246(3) of the constitution. The learned Senior Counsel argued that by the provision of sections 237 and 247(1) of the Constitution the 3rd Defendant’s decision to set up another panel is not a decision of the Court of Appeal but an exercise of administrative constitutional power by the President of the Court of Appeal under s.285(2) of the Constitution. It was argued that the order made by the court of appeal in CA/I/EPT/GOV/10/2007 SENATOR IBIKUNLE AMOSUN V. INEC & ORS is final and binding on all parties, that is the order remitting the petition to the Election Tribunal for hearing and determination on the merit. Reference was made to Exhibit OGD-3, the Certified True Copy of the Enrolled Order of the Court of Appeal.
It was further argued that by virtue of S.287(2) of the Constitution, the 1st and 3rd Defendants are bound to comply with and enforce the decision of the Court of Appeal in Exhibit OGD-3, it was argued that no litigant has a right to choose not to comply with an order of Court validly made, he cited the case of ODU V. JOLAOSO (2005) 16 NWLR (PT.950) 178, also ADESOYE v. OLAGUNJU (1998) 6 NWLR (PT. 552) 65.
It was finally submitted that Exhibits OGD-4 and OGD-5 constitute a review of the order of the court of Appeal in OGD-3. We were urged to hold that the decision of the 3rd Defendant taken pursuant to s. 285(2) of ,he Constitution cannot override the decision of this Court pursuant to S.246(3) of the Constitution, the case of OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319 was cited; and that the 3rd Defendant is bound by the order of the court of Appeal. We were urged to answer all five questions in favour of the plaintiffs as couched on pages 51-52 of the Plaintiffs’ brief of argument.
In response to all the submissions of the learned senior counsel to the plaintiffs, the learned senior counsel to the 1st Defendant chief Adeniyi Akintola (SAN) raised objection to the reply brief filed by the Plaintiffs in response to the 1st Defendant’s brief of argument, in which the Plaintiffs raised a preliminary objection asking that the four issues for determination contained at pages 9-10 of the 1st Defendant’s brief filed on 20/11/08 as well as all the arguments on issue No. 2 contained at pages 25-38 of the brief be struck out. Arguments in support of the preliminary objection were earlier given in this ruling. The learned senior counsel argued that the objection was not properly raised in line with order 10 Rule 1 of our Rules of court and referred to the cases of ELOICHIN (NIG) LTD & 2 ORS V. VICTOR NGOZI MBADIWE (1986) ALL NLR PART 14 PAGE 47, LAGOS CITY COUNCIL V. EMMANUEL AYODEJI AJAYI (1970) 1 ALL NLR PAGE 293 and ANNP V. USMAN (2008) PART 1100 PAGE 1
It was argued that even if the reply brief was proper at the time of filing the case before the court is a referral not an appeal, therefore that there is no need to file a brief, the records could be utilized, that filing a brief is a surplusage, the case of TOGUN V. OPUTA (NO.1) 2002 16 NWLR (PT.740) p.577 also relied upon by the plaintiffs was cited. It was submitted that because it is a case stated the initiator of the referral cannot file a reply brief unless there is a counter claim, relied upon was the case of IFEGWU V. F.R.N. (2001) VOL. 27 W.R.N. PAGE 86, as well as SPASCO VEHICLE AND PLANT HIRE CO. LTD. V. ALRAINE (NIGERIA) LIMITED (1995) 8 NWLR PT.416, P.655 and AGUNDO V. GBERBO (1999) NWLR (PT.67) AT PAGE 71.
We were urged to discountenance the objection in the reply brief in its entirety. Further that in the rest of the reply brief that the plaintiffs merely re-argued what was argued in the main brief of argument which the law does not permit, and referred to MOZIE v. MBAMALU (2005) 15 NWLR (PT.1003) P.466 and ONWUDIWE V. F.R.N. (2006) 10 NWLR (Pt.988) p.382. It was submitted further that the courts have held that a reply brief is not to fine tune or to re-argue the appellant’s brief. See N.N.B. PLC. V. EGUN (2001) VOL. 22 WRN PG.29 and OJANG V. DUKE (2003) 14 NWLR (PT.841) PAGE 581.
Finally that it is not enough for a party incorporate a preliminary objection in the brief of argument; the necessary notice must be filed as envisaged by Order 10 Rule 1.
In response to the Plaintiffs’ brief of argument the 1st Defendant had formulated four (4) issues which were earlier reproduced in this ruling. Before I go into the four issues formulated by the 1st defendant’ it is important and necessary to first look at the 1st Defendant/Respondent’s reaction to the plaintiffs/Applicants’ originating summons and the supporting affidavit. The 1st Defendant/Respondent deposed to two affidavits to controvert the allegations upon which the originating Summons was based and also filed a preliminary objection on 9th May, 2008. There were five (5) grounds of the objection to the effect that the lower court racked the competence and the jurisdiction to entertain the originating summons. The Notice of objection can be found on pages 204 to 206 of the records. The grounds for the objection by the 1st defendant pursuant to order 25 Rules 2, 3 and 4 of the Federal High court procedure Rules 2000 are as set out below:
“1. The reliefs, set out on the face of the summons do not disclose a justiceable cause of action. See EGBE V. BELGORE (2004) 8 NWLR (PART 875) 336 AT 353 paragraphs B-F, ALIYU V. IBRAHIM (1992) 7 NWLR (PART 253) 361 AT 373.
2. The jurisdiction of the Federal High Court does not extend to interference with the decision of President of the Court of Appeal, in the exercise of his constitutional right to empanel an governorship election petition tribunal under section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999, See DAIRO V. UBN Plc (2001) 16 NWLR (Part 736) 495 AT 504 PARAGRAPH G.
3. The Federal High Court has no jurisdiction to review or sit on appeal over the decision of a Court of Appeal on election petition appeals.
4. The Originating Summons is an abuse of court process, this being action in respect of another pending action – Petition No.EPT/OG/GOV./2/2007 pending before the National Assembly/Governorship and Legislative House Election Tribunal, Ogun State.
5. In the light of the ruling of the Tribunal of 24th April, 2008 in EPT/OG/GOV./2/2007, the plaintiffs claim is incompetent and an abuse of Court processes and unmaintainable.”
Grounds one and two of the objection challenged the jurisdiction of the rower court to entertain the plaintiffs’/Applicants’ originating Summons. It was argued that it was wrong for the rower court to have decided the motion for referral and going ahead to grant the prayer of referring the plaintiffs five(5) questions to this court for a decision.
The learned Senior Counsel for the 1st defendant submitted that the main relief in the originating summons is contained in the 3rd relief which seeks a declaration that the decision of the 3rd defendant to set up another panel of the Tribunal to hearing the 1st defendant’s petition is unlawful’ null and void while reliefs 1, 2 and 4 are ancillary reliefs. It was argued that the 3rd defendants constitutional powers to transfer an erection petition from one panel of the Election petition Tribunal to another set up or to be set up by him pursuant to the exercise of his administration power is not a justiceable cause of action, upon which any action can be based or founded by any party, reliance was placed on EGBE V. BELGORE (2004) 8 NWLR (PART 875) 336. Further that the subject matter of the suit does not fall within Section 251 of the 1999 Constitution. He cited of ONUORAH VS. KADUNA REFINERY AND PETROCHEMICAL CO. LTD. (A Subsidiary of Nigeria National Petroleum Corporation) (2006) 16 WRN. It was submitted that by virtue of the clear and unambiguous provisions of paragraph 2(3) of the Sixth Schedule to the 1999 Constitution, it is the exclusive and unchallengeable prerogative of the 3rd defendant to set up or empanel an Election petition Tribunal to hear and determine any dispute arising from the conduct of an election in any state of the Federation.
Learned senior counsel argued that the jurisdiction of the Federal High Court does not extend to or include the review of the judicial or administrative decision of this Court, he cited Okonkwo vs. Federal Republic of Nigeria (2006) 8 WRN 589, Tukur vs. Governor of Gongola State (1989( 4 NWLR (Part117). Further that the jurisdiction of the lower court is limited to those specifically assigned to it under section 251 of the constitution. It was submitted that it is the plaintiffs claim that determines the jurisdiction of the court in each given case. It was argued that in the plaintiff’s claim before the lower court no complaint was made against the 2nd defendant so as to confer the lower court with jurisdiction to entertain the matter.
It was submitted that since the Federal High court lacked the jurisdiction to entertain the matter brought before it, the proper order to make is an order striking out the matter as opposed to an order of referral as was done in this case by the rower court. The following cases were relied on. A.T.A. POLY VS. MAINA (2005) 10 NWLR (PART 934) PAGE 487, NEPA V. EDEGBERO (2002) 18 NWLR (PART 798) PAGE 79, AJAYI V. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (PART 820) 577 AND LAKANMI V. ADENE (2003) 10 NWLR (PART 828) PAGE 353.
We were urged to strike out the Amended Originating Summons “in limine”, as the order the lower court ought to have made having lacked jurisdiction to entertain same. Further, that the decision of this court of 13th March, 200g cannot constitute a bar to the administrative powers of the 3rd defendant and his functions with the provisions of section 285(2) of the constitution in mind and paragraph 2(3) of the 6th Schedule. EGBE V. BELGORE (SUPRA), ADESINA B. ABIDOYE (1999) 12 AND 11 SCNJ AND ALIYU V. IBRAHIM (supra) were referred to.
As stated earlier in this ruling apart from the preliminary objection raised by the 1st defendant s learned senior counsel, he responded to the brief of argument filed on behalf of the plaintiffs by raising his four issues as arising for determination by this court. Issues one and four were argued together, the arguments therein were as argued in his preliminary objection, that is, that the originating summons filed by the plaintiffs at the lower court does not disclose a justiceable cause of action as to confer jurisdiction on the lower court to entertain the matter. That the action basically is challenging or questioning the administrative power and/or discretion of the 3rd defendant to empanel a fresh tribunal to hear the petition filed by the 1st defendant. Reliance was placed on the cases of EGBE V. BELGORE (2004) 8 NWLR (PART 875) 336 and ALIYU v. IBRAHIM (1992) 7 NWLR (PART 253) 361. Learned Senior Counsel highlighted the provision in Section 251(1)(r) of the 1999 Constitution which set out the extent of the jurisdiction of the Federal High Court as well as Section 285(3) of the Constitution and paragraph 2(3) of the 6th Schedule to the Constitution regarding the powers of the 3rd defendant to empanel or constitute the tribunal. These sections will later be examined closely.
The learned senior counsel submitted that the lower court had no jurisdiction to entertain the substantive matter upon which the order of referral dated 8th August, 2008 was made with the provisions of section 251(1)(r) in mind and that the decision of this court of 13th March, 2008 is not a bar to the administrative powers and functions of the 3rd defendant derived under the provisions of section 285(2) and paragraph 2(3) of the 6th schedule to the constitution. We were urged to strike out the Amended Originating Summons.
In respect of his issue two, it was submitted on behalf of the 1st defendant that it is necessary to determine first whether the questions posed by the plaintiffs arose for the interpretation on application of the law which sets out the conditions under which such application could be made by the Federal High court as provided in section 295(2) of the 1999 constitution, under which a reference could be made to this court by the Federal High court for an answer from this court. It was argued that the required conditions are as provided in section 295(1) for a reference to be made to this court. The preconditions were given as:
(1) any question of interpretation of application of the constitution, has arisen, and
(2) the court is of the opinion that the question involves a substantial question of law’
It was argued that these conditions were not met before the reference was made by the rower court, and that even though the court could act “suo motu” or at the instance of a party to the action’ it is a constitutional provision that the question must genuinely arise in the proceedings. The case of BAMAIYI V. AG FEDERATION (2001) 12 NWLR (PART 727) 468 was referred to.
It was further argued that the request for referral should not be granted automatically because a party has requested for it, the conditions must be met and where the question is irrelevant it need not be answered by this court. The learned senior counsel likened the power of the 3rd defendant under section 285(3) to that of the chief Judges, who have statutory powers to transfer, assign’ or re-assign cases from one judge to another, which power is purely administrative EGBE v. BELGORE (2004) (supra) was referred to, also ALIYU v. IBRAHIM (1992) (supra) and OLATERU OLAGBEGI V. GOVERNMENT, ONDO STATE (2007) 17 NWLR (PART 1062) 111 amongst other cases. Learned senior counsel submitted that the questions referred to this court did not involve any substantia question of raw as much as there was no constitutional question requiring interpretation or application of the provisions of the constitution had arises in the case before the lower court. It was argued that the lower court was in a position to solve all the questions referred to this court. The main issue being whether the 3d defendant had the administrative power under section 285(2) of the constitution to set up another panel of the Ogun state Tribunal and to re-assign the 1st defendant’s petition to be heard there. It was submitted that such action of the 3rd defendant is non justiceable and not subject to the doctrine of fair hearing.
Further that the plaintiffs not being heard before the 3rd defendant’s decision to set up another panel is also not a substantial question of law which would have been the subject of a referral to this court.
It was submitted that the 2nd defendant – (INEC) did not file any processes in the lower court even though duly served. Therefore, that the 2nd defendant is not affected by any questions referred to this court and that the 2nd defendant should remain an unbiased umpire at elections and should be seen as an “independent body” which should await the outcome of the petition and comply thereafter, reliance was placed on the case of NGIGIE V. OBI (2006) 14 NWLR (PART 999) PAGE 1.
Learned Senior Counsel on this issue finally submitted that the lower court erroneously at the instance of the plaintiffs made the order of referral of the questions to this court to delay the hearing of the 1st defendant’s petition, we were urged to so hold.
On his third issue, the learned Senior Counsel for the 1st defendant submitted that the 3rd defendant’s decision to constitute a fresh panel of the tribunal to hear and determine the 1st Defendant/Respondent’s petition does not in any way breach or infringe on or violate the plaintiffs’ right to fair hearing under Section 36(1) of the constitution and Section 140(3) of the Electoral Act, 2006 as alleged by the plaintiffs who frowned at the 3rd defendant not consulting them (paragraph 2.9 on page 3 of their brief of argument). The complaints were earlier reviewed in this judgment. Learned Senior Counsel submitted that the principles of natural justice to wit “audi alteram paterm” and “nemo judex incausa sua” are to be adhered to by a court of law or tribunal, is in respect of a judicial body in discharge of statutory functions. It requires that a person must be accorded fair hearing before a verdict is passed on him by a judicial body, cited was the case of U.N.T.H.M.B. v. NNOLI (1994) 8 NWLR (PART 363) PAGE 376; also that a person should not be a judge in his own cause in which he has personal interest.
It was submitted that a decision to set up another panel to hear the 1st defendant’s petition does not in any way violate or infringe upon the plaintiffs right to fair hearing, neither has it occasioned any miscarriage of justice to the plaintiffs as to ground an action in a court of law. It was argued that the 3rd defendant is not under any obligation to consult the plaintiffs before exercising his administrative powers to set up a new panel of the tribunal see SCOTT EMUAKPAN V. EHIWARIO (2004) 13 NWLR (PART 889) PAGE 105. it was submitted that being an administrative function of the 3rd defendant’s no action will lie from it challenging same. OLATERU OLAGBEGI V. GOVERNMENT OF ONDO STATE (supra)- he submitted that the decision does not run foul of Section 36(1) of the constitution and Section 140(3) of the Electoral Act. Further that all the plaintiffs want is to delay the hearing of the 1st defendant’s petition and that the words of Section 36(1) should be literally read and interpreted.
We were urged to resolve the issue in favour of the 1st defendant against the plaintiffs and hold that the decision of the 3rd defendant to set up a fresh panel to hear the petition of the 1st defendant has not infringed upon or violated, the plaintiffs’ right to fair hearing under Section 36(1) of the 1999 Constitution.
In his special request/prayer the learned Senior Counsel for the 1st defendant urged that since this matter is an offshoot of an election petition which ought to be heard timeously, and all the necessary materials for the hearing of the referral are in the records before this court, we were urged to hear and determine the case before the rower court if it is found that the referral was wrongly made, and relied on the case of INAKOJU vs. ADELEKE (2007) 4 NWLR (PART 1025) PAGE 427. We were urged to invoke our power under and by virtue of section 16 of the court of Appeal Act, 2004 and decide the issue raised in the plaintiffs Amended originating Summons and the objection.
In response on behalf of the 2nd defendant Olayode Delano Esq. learned counsel for the 2nd defendant made submissions along the line of those made by the learned Senior counsel to the plaintiffs. He conceded though that the first question of the referral flows from the objection of the 1st defendant to the plaintiffs, suit at the lower court, this was also the argument of the learned senior counsel to the 1st defendant in response to the first question raised by the plaintiffs. The learned counsel submitted that the 2nd and 3rd defendants are Federal Government agencies which clothes the Federal High court with jurisdiction to entertain the matter by virtue of section 251(1)(q) of the 1999 Constitution and cited the case of OLORUNTOBA VS. DOPAMU (2008) ALL FWLR 810. It submitted that because the 2nd defendant conducted the election in which the result is being challenged, the 2nd defendant must defend the declared results, cited NGIGE V. OBI (2006) 14 NWLR PART 999 PAGE 60.
We were urged to hold that the lower court had jurisdiction to entertain the matter.
On the second question, it was argued that in the 3rd defendant exercising the power vested in him under Section 285(2) and paragraph 2(1) and 3 of the 6th Schedule to the constitution, the power to empanel a new Tribunal upon the allegations of the 1st defendant could only, be validly exercised if the2nd defendant and the plaintiffs are given an opportunity of being heard on the allegation so as not to violate Section 36(1) of the 1999 Constitution and Section 148 of the Electoral Act, 2006, the following cases were cited, KOTOYE VS. C.B.N. 1989 1 NSCC 256, HART VS. MILITARY GOVERNOR, RIVERS STATE & ORS. (1976) 10 NSCC 6221, ADENIYI V. GOVERNING COUNCIL, YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR PART 300, 426 and ANAZODO VS. AUDU (1999) 4 NWLR PART 600, 530.
On the third question, learned Counsel submitted that by virtue of Section 140(3) of the Electoral Act, the time within which the 3rd defendant could set up another panel to hear the 1st defendant’s petition had lapsed and therefore the 3rd defendant lacked the power to set up another tribunal, we were urged to hold so.
The fourth and fifth questions were argued together as they are interrelated. It was submitted that with the provision of Section 247(1) of the Constitution, the decision of the 3d defendant to set up another panel was purely administrative under the powers granted to him under paragraph 2(3) of the sixth schedule to the 1999 constitution and is not a judicial decision of the Court of Appeal.
On the fifth question it was submitted that the decision of the Court of Appeal that the petition be remitted back to the Tribunal for hearing and determination on the merit is a final decision and must be obeyed, by virtue of Section 246(3) of the constitution that it overrides the decision of the President of the court of Appeal to set up another panel. We were urged to so hold.
The 3rd defendant did not file anything.
In the lower court, even though the 1st defendant deposed to two counter affidavits to controvert the allegations upon which the originating summons was brought, the learned senior counsel chief Adeniyi Akintola (SAN) on the May, 2008 filed a preliminary objection of five grounds challenging the jurisdiction of the Federal High Court to interfere with the decision of the president court of Appeal in the exercise of his constitutional right to empanel a governorship election petition tribunal under section 285(2) of the constitution and that the Federal High court has no power to review the decision of the court of Appeal amongst other grounds earlier reproduced in this ruling. (pages 204 – 206 of the record).
The plaintiffs had also raised an objection to the issues formulated by the 1st defendant in answer to the five questions referred to this court, I will come to that later. I reviewed in great detail the issues and arguments proffered by the active parties in respect of the questions referred to this court, I will also come to that.
First, I will determine the issue of jurisdiction which was raised timeously by the first defendant in the lower court. It is the root or foundation of every matter. Being very fundamental it can be raised at any stage of the proceedings, in the High court, court of Appeal and the supreme court by any of the parties or by the court itself “suo motu” See EZOMO V. OYAKHIRE (1985) 1 NWLR (PART 2) 195 and SAUDE V. ABDULLAHI (1989) 4 NWLR (PART 115) 387.
In the present case the issue of jurisdiction was raised in the lower court and in this Court in answer to the referral. Jurisdiction is the power of a Court to adjudicate over a matter before it. It is vital in the administration of justice, and fundamental for the competence of the court to adjudicate over the matter. If the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided. See MADUKOLU V. NKEMDILIM 1962 1 ALL NLR 587: (1952) 2 SCNLR 341. Any final decision by a court or tribunal without jurisdiction is an exercise in futility. Therefore, whenever the issue of jurisdiction arises in a suit, it must first be resolved, early too, before considering the main action if need b’80, on the merit. See OLOBA V. AKEREJA (1988) 3 NWLR (PART 84) 508. ORHIONMWON LOCAL GOVERNMENT V. OGIEVA (1993) 4 NWLR (PART 288) 469.
It is trite that whenever the issue of jurisdiction is raised, the court is duty bound to determine whether or not it has jurisdiction. See OGUNMOKUN V. MILITARY ADMINISTRATOR. OSUN STATE (1999) 3 NWLR (PART 594) 261. In this matter the jurisdiction of the Federal High Court to entertain the Originating Summons was challenged as well as jurisdiction to make the order of referral to this court. In determining whether or not a court has jurisdiction, the court considers the claim of the plaintiff. In the present case the action was by Originating Summons in which all the necessary materials which would assist the court in determining whether it has jurisdiction or not were before the court and whether the reliefs sought in the Originating Summons disclose a justiceable cause of action as to vest the lower court with the requisite jurisdiction to entertain the plaintiffs’ action. As rightly argued by the learned senior counsel to the 1st Defendant the plaintiffs action as filed at the lower court essentially seeks to challenge or question the exercise of the administrative power and/or discretion of the 3rd defendant to empanel a fresh tribunal to hear the petition filed by the 1st defendant. All the parties agreed that the decision of the 3rd defendant to set up a new panel was an administrative decision, not judicial.
Where the jurisdiction of a court has been prescribed by statute such as the provisions of the constitution, the court must consider the totality of the enabling statute, sections or subsection. In the instant case, does the Federal High court have the power to adjudicate, challenge, review or question the administrative powers of the 3rd defendant which was what was sought in the originating summons? At this point it is important and necessary to set out some of the provisions of the 1999 constitution concerning the extent of the powers of the lower court and that of the 3rd defendant as given by the constitution. These are as follows:
Section 251(1)(r) reads as follows:
“251 – (1) Notwithstanding anything to the contrary contained in the 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.
(r) any action or Proceedings 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;
while Section 285(2) reads:
“285(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.”
Paragraph 2(3) of the 6th schedule to the constitution reads:
“Paragraph 2(3) The chairman and other members shall be appointed by the president of the court of Appeal in consultation with the Chief Judge of the State, the Grand Kadi of the Sharia Court of Appeal of the State or the President of the Customary Court of Appeal of the State, as the case may be.”
Statutes and more especially the constitution must be interpreted in a liberal and simple manner so as not to defeat the real intention of the lawmakers. Statutes must be read as a whole so as not to lose the real meaning of the provisions. The Supreme Court, in NBN LTD V. WEIDE & CO. (NIG.) LTD. (1996) 8 NWLR (PART 465) 150 AT 155 pronounced thus:
“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”
o see ABIOYE V. YAKUBU (1991) 5 NWLR (PART 190) 130; A-G, BENDEL STATE V. A-G, FEDERATION (1982) 3 NCLR 1.
Section 251(1)(r) has specified the matters the lower court has competence to entertain, therefore limiting its jurisdiction to those matter specifically assigned to it under the constitution and under any other Act of the National Assembly and obviously excludes those not included. It was also held in the case of ANNP v. R. O. A SS.D. (2007) 11 NWLR (PART 045) 431 that.
“The subject matter of a claim is material in determining the jurisdiction of the court. See ONUORAH V. KRPC (2005) 6 NWLR (PART 921) 393.
In the action before the lower court on the fact of the original summons, it is without doubt that the subject matter is an offshoot of an election petition, that is, whether in obedience of the court of Appeal decision a different panel, different from the one that heard the petition initially could be empanelled to hear the matter remitted to the tribunal for trial on the merits.
When Section 184 and 285(1) and (2) of the 1999 Constitution are read together, it is clear that the Election Tribunal has an exclusive and original jurisdiction on issues bordering on Electoral matters. Particularly, Section 285(2) provides for one or more Election Tribunals to be established in each state of the Federation to adjudicate on electoral matters. See OGBORU V. IBORI (2005) 13 NWLR (PART 942) 319. Section 251(1) has given exclusive jurisdiction to the Federal High Court in respect of matters listed therein. It did not expressly cater for jurisdiction on electoral matters, or review of administrative powers exercised over Election Petition Tribunals as stated earlier, express mention of a thing excludes the others. See MAJOR & CO. LTD. v. SCHRODER & CO. (1992) 2 NWLR (PART 101) 1.
It is clear that issues arising from elections have been reserved for Election Tribunals, including re-trial of previously heard election petitions as in this case. That brings us to the next question to be resolved. Section 285(2) earlier reproduced made it clear that one or more Election Tribunal could be established in every State of the Federation and paragraph 2(3) of the 5th Schedule to the same Constitution made it clear that the appointing body is the President of the Court of Appeal. It is at the discretion of the President of the Court of Appeal (3rd defendant) by the powers conferred on him to appoint one, two or more election petition panels to sit in a state at the same time depending on the volume of petitions and circumstances, one or more panels have been known to sit simultaneously in a state or different panels sitting one after the other in a state for the same purpose of first hearing, re-hearing, or hearing on the merits following a technical end to a petition as in the matter that brought about the present reference.
It is clear that the 3rd defendant who has powers to constitute election petition panels by the powers conferred on him by S. 285(2) and paragraph 2(3) to 6th Schedule could assign to and transfer cases before one panel to another. Election petition Tribunals in the states have been known to handle petitions from other states assigned to them for administrative convenience. Tribunals or its members have also been town to decline hearing particular petitions in some cases for one reason the other, even for personal reasons that cannot be questioned.
Many times, panels are set up to assist the panel on ground for quick disposal of petitions, such assignment or transfer of petitions do not touch on the civil rights or obligations of the parties as provided by section 26 of the 1999 constitution, contrary to the arguments of the learned senior counsel to the plaintiffs, such transfers do not constitute a trial and roes not touch on the decision that would be arrived at in the end. The lower of the 3rd defendant is statutory, see EGBE VS. BELGORE (2004) supra and ALIYU V. IBRAHIM (1992) (supra).
In my view, the 3rd defendant could, on his own volition, without application’ or at the request of any of the parties to a cause, transfer any cause or matter from one panel of the Tribunal to another or constitute another panel for the same purpose’ where there is one in existence as in this case’ where the 1st defendant requested for a transfer to another panel for whatever reason. The 3rd defendant could even exercise such power in course of proceedings but before judgment. It is an exercise of purely administrative powers which does not border on interference with the trial, therefore it cannot be the basis of any action by any party. This can be likened to the powers of a chief Judge to assign or reassign matters from one Judge to another’ see ONYEKWELI VS. UGWU (2008) 15 NWLR (PART 111) PAGE 545, DIKE V. ADUBA (2000) 3 NWLR (PART 647) PAGE 1. In the same manner the 3rd defendant is free to reconstitute panels from time to time, depending on the circumstances. Petitions could be transferred from one panel to another; members of the panel could be reconstituted, within his powers under the constitution. It is nothing strange or new.
There are situations where some members of a particular panel are elevated to the position of administrative heads of Court, to the Court of Appeal, Some retire from service, some may even pass away’ sometimes panel members are recalled by their heads of court and are no longer in a position to serve in the particular panel, what happens? Petitions will still be heard, the 3’d defendant would have to reconstitute such panels. It is common too, that some members after one or two outings are no longer willing to serve in the election petition tribunals, for whatever reason’ may be personal or convenience, would the petitions before such panels be allowed to lapse for lack of quorum? No. It would defeat the ends of the justice desired by the Parties.
In my considered view the exercise of such administrative power is not a justiceable cause of action upon which any action can be based by any party. EGBE V. BELGORE (supra).
By virtue of paragraph 2(3) of the sixth schedule to the 1999 constitution, it is the exclusive and unchallengeable prerogative of the 3rd defendant to set up or empanel an Election Petition Tribunal to hear and determine any dispute arising from the conduct of the election in any state of the Federation. The 3rd defendant is not under any obligation whatsoever, bound to inform or consult any of the parties or anybody else before constituting a fresh panel to hear the 1st defendant’s petition or any other petition whatever the case may be, to effect his administrative power or discretion to transfer an election petition from one panel to the other or to reconstitute a fresh panel, as I said earlier, there is nothing new about –
The exercise of such power. See SCOTT-EMUAKPOR V. EHIWARIO (2004) 13 NWLR (PART 889) PAGE 105.
The reliefs sought in the Originating Summons before the lower court is an attempt to subject the administrative powers of the 3rd defendant to a review. I am afraid the jurisdiction of the Federal High Court does not extend or include the review of the administrative powers of the 3rd defendant. I agree with the learned Senior Counsel to the 1st defendant that the third relief in the Originating Summons is the crux of the matter and subsequent objection raised by the 1st defendant that is, the 3rd defendant’s power to set up a fresh panel, all the other reliefs are ancillary to the third relief.
It was argued by the plaintiffs in response to the preliminary objection that the rules of natural justice have been breached by the 3rd defendant by not allowing the plaintiffs make an input whether the 3rd defendant could constitute a fresh panel or not. I am afraid, that would have been applicable if the 3rd defendant shut out the plaintiffs in a judicial function or decision as opposed to an administrative function or duty. I am not yet aware of any law or rule that makes it mandatory for the parties to an action or election petition to make or have input with respect to the choice of judge or election petition panel members that would adjudicate over such an action on election petition, in this case solely at the discretion of the President of the Court of Appeal, in my opinion which no action can lie. I agree with the submissions of the learned senior counsel to the 1st defendant that it is never done. On the other hand the plaintiffs were unable to cite any authority, statutory or judicial that makes it mandatory for the 3rd defendant to consult with the parties before the exercise of his administrative powers to set up new panels.
In answer to the preliminary objection, it was argued by the learned senior counsel to the plaintiffs that the defendant is a Government agent, therefore conferring jurisdiction on the rower court to entertain the matter before it, I am afraid this is erroneous: The court of Appeal or its President (3rd defendant) is not an agent of the Federal Government within the meaning of the provisions of the constitution.
On the issue of jurisdiction still, did the lower court have the power to entertain the originating summons that resulted in the referral to this court? This issue was argued in the preliminary objection before the lower court which was taken together with the application for a reference to this court as well as in this Court.
In its Ruling, the learned Judge rightly held thus: (Page 522 of the record).
“It is trite also that, the issue of jurisdiction once it is raised, the court whose jurisdiction is challenged, will assume jurisdiction first, to enquire and determine whether it has jurisdiction to hear the case or not for this position of the law see A-G OGUN STATE V. COKER supra Ratio 18.
It is not possible now, for this court to do so because, it is a point of law, in one of the question the plaintiff, seek this court to refer to the Court of Appeal, for its decision. Based on the decision in GAMIOBA’S CASE AND IFEGUN’S CASE SUPRA amongst others, this court must perforce, refer this and other questions raised in this matter, to the Court of Appeal.”
The learned judge went further and held thus: (at page 525 of the record)
“The issue of jurisdiction in this suit, must be settled for progress to be made in the direction of the final determination of this matter.”
The above holdings are in line with the correct position of the law that the issue of jurisdiction must be determined first before going into the substantive matter before it, otherwise any decision taken thereafter would be a nullity where the court lacks competence. The lower Court did not expressly state that it had jurisdiction to entertain the Originating Summons but, by hearing and making the referral to this Court, it had taken a decision by its Ruling of 8th July, 2008, and indeed assumed jurisdiction.
The learned judge further held: (pages 523 – 524)
“In this case, I mean the mandatory Provisions in Section 295(2) of the 1999 Constitution, which make it a duty for a court of first instance, to refer substantial question of law, pertaining to the application or interpretation of constitutional provision, on issues arising in proceedings before it, when a party makes such a request and it is convinced that, such substantial, question of law, have indeed arisen. In this case the reference is to the Court of Appeal.”
The court went further to hold:
“Now, having said this much, and having carefully scrutinized the processes filed in this suit, it has been garnered that, the questions posed in the subjoined schedule to this application, do in themselves raise substantial questions of law. In view of the request of the plaintiffs that, they be referred to the Court of Appeal, I am persuaded that, they indeed need to be referred to the Court of Appeal for a decision thereon.
Flowing therefrom, I hereby grant the main relief sought by this application. Consequently, the matter shall be referred to the Court of Appeal, pursuant to the provisions of Section 295(2) of the 1999 Constitution.”
Having reviewed Section 251(1)(r) which states the matters within the jurisdiction of the lower court and Section 285(2) and paragraph 2(3) of 6th Schedule to the Constitution which covers the exercise of the 3rd defendant’s administrative power, which the lower court cannot question, obviously the lower court lacked the jurisdiction or competence to have assumed jurisdiction in the plaintiffs’ substantive case in the Amended Originating Summons. Since the lower court lacked jurisdiction over the matter before it in agreement with the arguments of the learned senior counsel for the 1s defendant, it lacked the jurisdiction to consider the request for a referral and in making the referral to this court. In my view, the referral should not have been entertained by the lower court, and I so hold. See LAWRENCE V. A-G FEDERATION (2008) 6 NWLR (PART 1084) 453, CHIEF OLABISI ONABANJO V. CONCORD PRESS OF NIGERIA LTD. (1981) 2 NCLR PAGE 393.
Even though Section 295(2) of the Constitution, empowers the lower court to make a reference to this court concerning interpretation on application of the constitution when it arises and questions involving substantial question of law, such situation have not arisen here and the main crux of the matter, which is whether the defendant could empanel a new panel to hear a petition is certainly not one of them. The grant of a referral is not automatic, certain conditions must be met’ argued and listed on page 2nd of the 1st defendant’s brief. Having held that the lower court had no power to entertain the amended originating summons it naturally had no power to make the constitutional reference. Examining the required conditions or ingredient for a constitutional reference would now be an academic exercise on our part. If the court had the power to entertain the action, then it would be proper for this court to examine if the conditions for a reference have been met or not. I am of the opinion that the lower court was wrong to have assumed jurisdiction in this matter outside those conferred on it to adjudicate upon by the constitution and wrong to have made the order of referral to this court’ and I so hold.
The lower court was under the obligation to take a definite stand on the issue of jurisdiction which was timeously raised in the objection, rather than wash its hands off a definite stand and pushing it to this court to determine in the form of reference. See OGUNMOKUN V. MILITARY ADMINISTRATOR, OSUN STATE (1999) 3 NWLR (PART 594) 261. It has been settled by the supreme court that electoral matters are to be settled by election tribunals. As a follow up I add, by election tribunals property set up by the appropriate body, the 3rd defendant without challenge by any court. The Federal High court has not been empowered to look into it in form of review, interpretation or otherwise. On the effect of lack of jurisdiction in U.A.C. V., MACFOY (1961) 3 ALL E.R.P.1169 AT 1172, Lord Denning had this to say:-
“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad… And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. In the present case’ since the special feature of the exercise of the 3rd defendants powers stripped the lower court of jurisdiction to entertain the matter, it renders null and void any decision of the lower court arrived at, that is entertaining the amended originating summons and the order of referral made to this Court. See also SKENCONSULT (NIG.) LTD. & ANOTHER V. GODWIN SEKONDY UKEY (1981) 1 S.C. PAGE 6 and MADUKOLU V. NKEMDILIM (supra).
In my considered view the action before the lower court is not competent. In MADUKOLU v. NKEMDILIM (supra) it was decided that: A court is competent when:-
“(1) it is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication'”
(underlining mine for emphasis)
See OGUNMOKUN v. MIL. AD. OSUN STATE (supra) 1999 3 NWLR PART 594) 261 AT 279 – 280. The second requirement above disqualified the jurisdiction of the lower court in this matter that is the subject matter of this case that is not justiceable and I so hold.
We were urged in the 1st defendant’s special request/prayer to act under section 16 of the court of Appeal Act’ to consider the merit of the amended originating summons and the objection since we have all the necessary materials placed before us in the record of referral, and relied on the case of ADELEKE V. INAKOJU (2007) 4 NWLR (PART 1025) 423. It is the law that the trial court must have jurisdiction to entertain the case before this court can exercise its powers under section 16 of the court of Appeal Act. In Adeleke vs. O.S.H.A. (2006) 16 NWLR (PART 1006) 608, this court found therein the lower court had jurisdiction before the Court of Appeal acted under section 16 of the Court of Appeal Act. In the present case having found that the lower court has no jurisdiction to entertain the matter, we cannot act under section 16, that would not be logical.
On the preliminary objection raised by the learned senior counsel to the 1st defendant in the rower court and in this court, I find merit in the objection and it is hereby sustained, and I hold that the lower court had no jurisdiction to entertain the matter and the order of reference to this court was made without jurisdiction, therefore a nullity.
In conclusion, considering the facts and the circumstances of this case, the appropriate order that should be made where the action has been found to be incompetent and this affected the jurisdiction of the Federal High court, decided authorities state that the proper order to be made is one striking out the suit before the lower court. see MADUKOLU V. NKEMDILIM (SUPRA), U.T.B. (NIG.) LTD. V. UKPABIA (2000) 8 NWLR (PART 670) 570, ALUMINIUM MANUFACTURING CO. NIG. LTD. V. NPA. (1987) 1 NSCC 274 (1987) 1 NWLR (PART 51) 475; AWOLEYE V. BOARD OF CUSTOMS V. EXERCISE (1990) 2 NWLR (PART 133) 490.
Accordingly, I strike out the suit before the lower court, that is suit No. FHC/AB/CS/23/2008, Otunba Justus Olugbenga Daniel & Anr. vs. Senator Ibikunle Amosun & 2 Ors pending before the Federal High Court, Abeokuta for lack of jurisdiction.
As an aside, in course of argument it was argued by the plaintiffs that the constitution of another panel by the 3rd defendant would cause delay in hearing and determination of the erection petition following the judgment of the court of Appeal of 13th March, 2008 on the other hand much more delay has been caused by the action taken out before the Federal High court challenging the 3rd defendant’s power to constitute a new panel to hear the erection petition. It has been repeatedly said in a region of judicial authorities that in erection petition matters time is of the essence for a final decision to be reached, not only in the interest of the parties that contested the erection but the electorate those that cast their votes and the need for them to know whom their rear representatives are.
Having upheld the 1st defendant’s objection, there would be no need to evaluate the objection argued by the learned senior counsel to the plaintiffs as to whether it was proper for the 1st defendant to have formulated issues different from the questions raised in the referral, this has been overtaken by events. In the same manner having held that the lower court racked jurisdiction to entertain the matter there would be no need to evaluate ail the arguments adduced in respect of the referral or its merit. I must commend at this point the industry of counsel on both sides in their arguments before this Court.
The matter remains as earlier communicated in Exhibit OGD-5, the petition is to be heard by a newly constituted panel of the election petition tribunal, to be constituted at the discretion of the 3rd defendant’ the Honourable President of the Court of Appeal.
Each Party is to bear its costs.
MODUPE FASANMI, J.C.A.: I am at one with my learned brother Uwa J.C.A. on the ruling delivered. By way of emphasis and elucidation, I will take to throw in one or two words of mine on the response of the plaintiffs to the preliminary objection that the rules of natural Justice has been breached by the 3rd Defendant by not allowing the plaintiffs make an input as to whether the 3rd Defendant could constitute a fresh panel or not.
A reference could be made to this court under two conditions. These are:
(1)Where any question as to the interpretation or application of the constitution arises in any proceedings in the Federal High court or a High Court.
(2) Where the court is of opinion that the question involves a substantial question of law.
With respect, the issue before the Lower Court is basically on the administrative powers of the 3rd Defendant. i.e. the President of the Court of Appeal to constitute a fresh panel on election petition. It will be stretching the law too to far to say that this involves the interpretation or application of the Constitution or that the issue involves a substantial question of law.
In my own view, this is a clear attempt by the plaintiffs to have the petition tried in a particular court where they feel they will receive the most favourable judgment or verdict. This is not a practice recognized or approved under our laws. It is frowned at and should not be encouraged. To allow this wit surely be subjecting the administrative powers of the 3rd Defendant to are view. The of the court of Appeal is entrenched and guaranteed under section 285 subsection 2 and also in paragraph 2 (3) of the sixth schedule to the 1999 Constitution to set up or empanel Election Petition Tribunal to hear and determine any dispute arising from the conduct of election in any State of the Federation. These provisions are striving at fairness to all the parties. Fairness was observed by the Supreme Court in the case of A.-G. River State v. Ude (2006) 17 N.W.L.R. Part 1008 at page 436 as “the determining factor for the application of principles of natural Justice. In other words, natural Justice is fair play in an action”. See also Ezechuku v. Onwuka (2006) 2 NWLR Part 963 at 151.
The attempt by the Plaintiffs to have an input as to whether the 3rd Defendant could constitute a fresh panel is “forum shopping” which is not practiced or recognised under our laws. It is regarded as an aberration. Justice is for all without fear or favour. Let me put that to rest here.
Finally, I wish to state that the court of Appeal or its President 3rd Defendant is not an agent of the Federal Government within the meaning of the provisions of the constitution. It is a separate and distinct arm of the Government.
The preliminary objection of the 1st Defendant is meritorious and it is hereby upheld. I also abide with the consequential orders made.
ISTIFANUS THOMAS, J.C.A.: I agree
Appearances
Tayo Oyetibo (SAN), Kemi Pinhiero (SAN), Kunle Kalejaiye (SAN) with A. M. Kotoye Esq., O. J. Akinwale Esq., O. Adeyemi (Miss), C. S. Adekanbi (Mrs.), Olumide Aliyu Esq. and C. I. Umeche Esq.For Appellant
AND
Rickey Tarfa (SAN) Adeniyi Akintola (SAN) with G.M.O. Oguntade Esq., A. J. Owonikoko Esq., J. O. Odubela Esq., F. A. Aofolajin (Miss(, A. A. Omoyinmi Esq., Oyebola Ilori Esq., Amole Abiodun Esq., Sayo Akinwande Esq., George Oyeniyi Esq., Ismail Ajibade Esq., Olutayo Oyewale Esq., Yinka Fajemiroye Esq., M. A. Taiwo Esq., B. O. Ogunmodede Esq., Olufemi Adeniyi Esq. and Ahmed Akanbi Esq.
Olayode Delano Esq., with Mutiu Akinrinmade Esq.For Respondent
