HON. DORIS OLAYEMI UBOH v. DR. (MRS.) MARIAN NNEAMAKA OGOH ALI & ORS
(2019)LCN/12606(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/A/18/2019
RATIO
COURT AND PROCEDURE: WHERE A DECISION IS FINAL
“It is trite law that a decision is said to be final when it finally disposes of the right of the parties. See AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PT. 1074) AT 247. In the instant case, the decision given by the trial Court is such that the matter in controversy between the parties would not be brought back to the Court for further adjudication.” PER ABDU ABOKI, J.C.A.
COURT AND PROCEDURE: WHETHER THE GROUND OF APPEAL MUST RELATE TO THE RATIO
“It is trite in law that the grounds of appeal, against a decision must relate to the said decision given the fact that it is a challenge to the “ratio” of that decision. In other words, grounds of appeal must emanate from the decisions it is attacking. In the instant case the appellant’s ground six relate to the decision of the lower Court and is a challenge against the ratio of the decision of the lower Court. The 1st Respondent in this appeal is not complaining that he is in doubt as to the exact complaint against the judgment appealed against. See SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 184. It is firmly established that an incompetent ground of appeal cannot give rise to competent issues for determination. See the cases of AKPAN V. BOB (2010) 17 NWLR (PT. 1223) 421. In the instant appeal I have difficulty in agreeing with the 1st respondent that issue two formulated from ground six is incompetent.” PER ABDU ABOKI, J.C.A.
JURISDICTION: THE ISSUE OF TERRITORIAL JURISDICTION
“The issue of territorial jurisdiction of the trial Court can be raised at any time, even in the Supreme Court for the first time without leave. See SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) AT 460. In the instant case the primary election, the subject matter that lead to the 1st Respondent action at the trial Court was conducted in Delta State. This is not contested. The action was instituted at the FCT High Court Abuja, which has no territorial jurisdiction over the action conducted in Delta State by virtue of Section 255 of the CFRN 1999. See also the case of MAILANTARKI (SUPRA).” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
HON. DORIS OLAYEMI UBOH – Appellant(s)
AND
1. DR. (MRS) MARIAN NNEAMAKA OGOH ALI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. ALL PROGRESSIVES CONGRESS (APC) – Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 14th December, 2018 by Hon. Justice V. B. Ashi J. in Suit No. FCT/HC/CV/79/2018.
The Brief summary of the fact of this case that lead to this appeal was that, by an originating summons filed on the 2nd day of November, 2018 the 1st Respondent as Plaintiff at the lower Court seeks the determination of the questions as can be found at pages 2-3 of the record of appeal. In anticipation of favorable answers, the 1st Respondent also seeks the reliefs as can be found at pages 3-4 of the record of appeal.
The summons is supported by an affidavit of 30 paragraphs and Exhibits attached. The Plaintiff/1st Respondent’s case is that she completed an Expression of interest and Nominations forms of the 3rd Respondent to contest at the primary election as an aspirant who shall fly the parties’ flag in the forth coming Delta North Senatorial Election. That she submitted the forms to the 3rd Respondent’s National Headquarter, Abuja. The Appellant also bought and completed the forms for the same purpose. The 1st Respondent/plaintiff contended that on 30th October, 2018 it came to her knowledge that the Appellant in filling her own forms supplied false information and that she lied on oath. Upon being served with the originating summons, the Defendants at the lower Court filed counter affidavits in defence. The 3rd Defendant/Appellant in particular raised a preliminary objection on jurisdiction, contending that the trial Court lacks the territorial jurisdiction to entertain the action.
The trial Court in its judgment overruled the 3rd Defendant/Appellant’s objection and declared that the Appellant is not qualified to contest elections for any public office and therefore ought not to be sponsored by the 3rd Respondent for any elective office.
Dissatisfied with the said judgment of the lower Court, the Appellant who was the 3rd defendant at the lower Court appealed to this Court vide her notice of appeal dated and filed 19th December, 2018. The said notice appeal which appears on pages 216 – 221 of the record of appeal contained six (6) grounds of appeal.
The record of appeal was compiled and transmitted to the Court on 9th January, 2019. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of this Court. The Appellant’s brief of argument is dated 11th January, 2019 and filed on the 14th January, 2019. The Appellant also filed Appellant’s Reply Brief dated and filed 21st January, 2019. The 1st Respondent’s Brief of Argument on the other hand, is dated and filed on the 18th January, 2019. The 1st Respondent also incorporated a notice of preliminary objection to the hearing of the appeal in her brief of argument.
On 21st January, 2019, the appeal was heard before the Court. The Appellant’s Counsel adopted the Appellant’s brief of argument as well as the Reply Brief. He urged the Court to allow the appeal. The 1st Respondent’s Counsel on its part adopted the 1st Respondent’s brief of argument and urged the Court to dismiss the appeal for lacking in merit.
The Appellant from their six grounds of appeal distilled two issues for determination as follows:
I. Whether the Honorable Court below has the requisite jurisdiction to entertain the case of the 1st Respondent and exercise judicial powers thereon.
2. Whether the reliefs granted by the learned trial Judge is a proper exercise of judicial powers including discretion having regards to the evidence before the Court.
The 1st Respondent’s counsel on its part also distilled two issues for determination as follows;
1. Whether the FCT High Court has the requisite jurisdiction to adjudicate on this matter?
2. Whether on the evidence the decision of the Court is justified?
I will determine this appeal on the basis of the two issues raised in the Appellant’s brief of argument.
In the determination of this appeal, I will first consider the preliminary objection raised by the 1st Respondent.
PRELIMINARY OBJECTION
The grounds of the said preliminary objection are as follows;
a. Grounds 1, 2, 3, 4 and 5 are incompetent. they are grounds that challenge the interlocutory decision of the trial Court and before they can be questioned by way of an appeal, leave of either the trial Court or Court of appeal must be first be sought and obtained.
b. The 6th ground of appeal does not support the 2nd issue argued by the Appellant in his brief. Arguing the preliminary objection, learned counsel to the 1st Respondent submitted that the Right to Appeal from a decision of any High Court, Federal High Court or any such Court is donated by Section 241 (1) and 242 (1) of the 1999 Constitution. Section 242 (1) donates a Right of Appeal with leave of either the High Court or the Court of Appeal in all other cases where the Right of Appeal is not as of right and Interlocutory decisions fall into this.
He argued that in the instant case, the Appellant filed an objection to the competence of the lower Court to adjudicate over this matter on the grounds that the cause of action arose in Asaba and as such the FCT High Court did not have the requisite jurisdiction to hear and determine the matter.
He maintained that the lower Court in its wisdom held that the complaint had nothing to do with the primaries held in Asaba but rather had to do with the contents of the details she gave in her APC Form, wherein she claimed certificates that obviously did not belong to her. The Court dismissed the objection.
Learned counsel submitted that the Appellant has filed six grounds of appeal, and this was done by the Appellant without obtaining the leave of either the Trial Court or Court of Appeal as required by law. The necessity for leave stems from the fact that, that decision is interlocutory and to appeal against it must be with the leave. He cited in support the cases of; IWUEKE VS. IBC (2005) 17 NWLR (PT. 955) 447 AT 469-470. AGBOGUNLERI VS. OEPO (2008) 3 NWLR (PT. 1074) 217 AT 247. ALOR VS. NGENE (2007) 17 WNLR (PT. 1062) 163 AT 175.176. GOMEZ VS. CHERUBIM & SERAPHIM SOCIETY & ORS (2009) 5 SCNJ 1 AT PAGE 12. (among others)
He contended that the condition precedent to the exercise of jurisdiction by the Court of Appeal over grounds 1,2,3,4, and 5 is the grant of leave by the Court of Appeal or the trial Court to bring the appeal. Without the prior leave had and obtained the Court will not have jurisdiction. He cited in support the case of NGERE VS. OKURUKET ‘XIV’ (2014) 11 NWLR (Pt. 1417) 147 at 175.
He therefore urged the Court to strike out grounds 1,2,3,4 and 5 and hence issue No. 1 based on those grounds of appeal for being incompetent.
It is submitted further that every issue for determination must arise from a ground of appeal. Where it does not then the issue must be struck out. He referred the Court to Ground 6 from which issue No. 2 is distilled at page 219 of the Records.
He contended that the only argument tenable under that ground is to show how the Court used the contents of documents supplied to a political party to disqualify the Appellant pursuant to Section 31 of the Electoral Act. He referred the Court to the cases of; GALADIMA VS. STATE (2018) 13 NWLR (PT. 1636) 357 AT 373; AGUBA VS. FRN (2018)13 NWLR (PT. 1637) 417 AT 428.
He urged the Court to strike out the entire appeal for being incompetent.
In response learned counsel to the Appellant submitted that issue one being an issue of challenge of jurisdiction can come in any form, at any time, it could even be raised viva voce or suo moto by the Court. Leave is not required to raise issue of jurisdiction before the Honourable Court. He referred the Court to the cases of; ANYANWU Vs. OGUNEWE (2014) LPELR-22184 (SC), KALU Vs. ODILI (1992) 5 NWLR (PT 240) 131 AT 188.
He contended that the argument at page 3 paragraphs 2, 3, 4 of the 1st Respondent’s Brief cannot stand. He maintained that the argument by the 1st Respondent that the said issue one deals with interlocutory decision and therefore leave of Court is needed is a misconception of the principle of law in the issue.
He contended that the cases referred to at paragraph 5, 7, 8, 13, 14, 16, 18 & 19 of the 1st Respondent’s Brief of Argument are immaterial to the instant case as they did not deal with challenge of lack of jurisdiction.
Learned counsel argued further that, the judgment appealed from in the instant appeal is not an interlocutory Decision. It was a final Judgment as there was nothing left to be decided between the parties by the Court below as to right of the parties. He urged the Court to so hold. He referred the Court to the case of AGBOGUNLERI Vs. DEPO (2008) 3 NWLR (PT 1074)217 AT 247.
He maintained that assuming but, without conceding that the appeal is interlocutory decision, in election matters there is no distinction between Interlocutory and final judgment. He cited in support the case of AREGBESOLA Vs. OYINLOLA (2009) 4 NWLR (PT 1162) 429 AT P 469.
On Issue 2, learned counsel to the Appellant submitted that the Court is bound to reach its decision based on what evidence is before it. He contended that the evidence in this case was a challenge under Section 87(9) of the Electoral Act. Under Section 31, the required Certified Copy from INEC was not attached to Claimant’s affidavit and nothing is before the Court.
He urged the Court the Court to dismiss the preliminary objection.
In the case of HARRIMAN VS. HARRIMAN (1987) 3 NWLR 244, the Court held that:
“Section 241(1) and 242(1) of the 1999 Constitution create two rights of appeal from any single decision of the High Court to the Court of appeal which are a right of appeal as of right and another right of appeal with leave of either.”
It will be pertinent at this point to reproduce the relevant constitutional provision for ease of reference.
Section 241 (1) provides as follows:
“An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of appeal as of right in the following cases:
(a). Final decisions in any civil or criminal proceedings before the Federal High Court or the High Court sitting at first instance;
(b). Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c). Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d). Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
(e). Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death…”
Section 242 (1) of the 1999 CFRN as amended state as follows:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal”.
In the instant case I have carefully perused the said grounds of appeal and their particulars as can be found in page 216-219 of the record, it is my view that the learned counsel to the 1st Respondent’s was wrong to contend that all the grounds are appeal against an interlocutory decision.
It is trite law that a decision is said to be final when it finally disposes of the right of the parties. See AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PT. 1074) AT 247. In the instant case, the decision given by the trial Court is such that the matter in controversy between the parties would not be brought back to the Court for further adjudication.
Also in WESTERN STEEL WORKS LTD VS. IRON STEEL WORKERS UNION 1986 NWLR PT.30 AT 626 the Supreme Court held thus;
“A decision of a Court on the question of whether it has jurisdiction in a matter is a final decision since it concludes the rights of the parties…”
In the instant case, the decision of the lower Court is a final decision of the Court, which by virtue of Section 241 (1) (a) of the CFRN 1999 such appeal shall be to this Court as of right. I so hold. See AREGBESOLA VS. OYINLOLA (2009) 4 NWLR PT.1162 AT 469.
On the 1st Respondent’s contention that issue two does not arise from ground six of the Appellant’s notice of appeal. I have also carefully perused the said ground six and its particulars as can be found at page 219 of the record of appeal vis a vis the Appellant’s issue two, it is my view
11
that the Appellant’s contention on this point is grossly misconceived, because the Appellant’s issue two is based on ground six of her notice of appeal. The cases cited by the 1st Respondent’s counsel are not on all four with the instant appeal.
It is trite in law that the grounds of appeal, against a decision must relate to the said decision given the fact that it is a challenge to the “ratio” of that decision. In other words, grounds of appeal must emanate from the decisions it is attacking. In the instant case the appellant’s ground six relate to the decision of the lower Court and is a challenge against the ratio of the decision of the lower Court. The 1st Respondent in this appeal is not complaining that he is in doubt as to the exact complaint against the judgment appealed against. See SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 184.
It is firmly established that an incompetent ground of appeal cannot give rise to competent issues for determination. See the cases of AKPAN V. BOB (2010) 17 NWLR (PT. 1223) 421. In the instant appeal I have difficulty in agreeing with the 1st respondent that issue two formulated from ground six is incompetent.
There is no merit in the 1st Respondent’s preliminary objection and it is hereby dismissed.
I have earlier said in this judgment that this appeal will determine on the basis of the two issues raised in the Appellant’s brief of argument. I will determine them together.
Learned counsel to the Appellant submitted that the case of the 1st Respondent before the Court below is incompetent in that it is not in compliance with Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration No. 21, Act, 2017).
He argued that the 1st Respondent filed her suit before the Court below on the 2nd of November, 2018, that is 27 days after the Delta North Senatorial District Primary Election, which took place on the 4th of October, 2018, in Asaba, Delta State, and thereby not filing within the prescribed time of 14 days after the primary, the 1st Respondent claim before the Court below stands defeated.
He argued that a close look at the records show that the affidavit in support of the Summons, the Summons itself and the Declarations made by the trial Court refer to Pre-election matter. He referred the Court to the questions for determination and reliefs sought at pages 3-4 of the Records.
Learned counsel maintained that the 1st Respondent herself in her written address in support of the originating summons at page 66 of the record of appeal submitted that the claim before the Court is founded on the provisions of Section 87(9) of the Electoral Act, 2010.
He submitted that the conclusion of the Court below that the case before it did not deal with pre-election matter cannot be supported by the evidence on records. He contended that the only meaning is that the matter dealt with by the trial Court is a pre-election matter in respect of the primary election conducted by the 2nd Defendant/Respondent on 4th October, 2018 in which the Appellant and the 1st Respondent participated.
Learned counsel submitted that the Appellant having shown above that the trial Court dealt with a pre-election matter, it is not in doubt that Section 285 (9) which deals with filing of pre-election matters applies. He referred the Court to pages 1-110 of the records, where the Appellant showed that the action was filed on 2nd November, 2018 and
14
the primary election was on the 4th October, 2018 which contravenes Section 285(9) of the 1999 Constitution (as amended).
He submitted further that an objection to jurisdiction touches on the competence and legality of the trial Court to try the case. He referred the Court to the cases of;
SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA V. ISAIAH (2001) 11 NWLR (PT. 723) 168, AT 173 and 174.
A.G. ANAMBRA V. A.G.F & 16 ORS. (1993) 7 SCNJ 249. APGA V. ANYANWU (NO. 2)2014 2SC (PART 1)1.
Learned counsel contended further that the filling of the suit of a cause of action that arose in Delta State in the FCT High Court Abuja was an abuse of Court process. He referred the Court to the case of MAILANTARKI VS TONGO (2018) 6 NWLR (PT.1614) PG 69.
He submitted that the trial judge erred by assuming jurisdiction to entertain the case of the 1st Respondent when it was very clear that he does not possess the power to entertain the suit which subject matter (cause of action) is conduct of the Delta North Senatorial District Primary Election which took place in Asaba on the 4th of October, 2018.
Learned counsel to the Appellant contended that the holding of the trial Court is not borne out of the records of this appeal. There is nowhere in the originating affidavit that the name Abuja was mentioned in the process filed by the Claimant (1st Respondent). The name Abuja was inserted in the judgment by the lower Court for reasons only known to the Court in order to assume jurisdiction.
He submitted that a litigant who deposes that she submitted her Nomination Form to the “National Headquarters” without more cannot be inferred that Abuja now have jurisdiction to entertain the primary election that took place in Asaba Delta State.
He argued that the suit as framed is not challenging any action at Abuja, the Issues for Determination and Reliefs sought together with the affidavit in support of the Originating Summons do not refer to any action that took place in Abuja. He referred the Court to the cases of;
BASHIRU DALHATU VS. TURAKI & ORS. (2003) 7 SC 1 AT 6-17, 19; MAILANTARKI VS. TONGO (2018) 6 N.W.L.R (PT. 1614) 69.
Learned counsel submitted that the territorial jurisdiction of the Court is limited to where the cause of action arose, regardless of where the defendant resides. He referred the Court to the cases of;
MADUKOLU V, NKEMDILIM (1962) SCNLR 341.
SOYANNWO V. AKINYEMI (2001) 8 NWLR (PT. 714) P.95 at 116. EVBUOMWAN V. BENDEL INSURANCE CO. PLC. (2001) 1 NWLR (PT. 694) at 396.
He insisted therefore that the Court below lacks the territorial jurisdiction to hear and determine this suit as the cause of action before it arose in Delta State, Nigeria.
He submitted that when a Court lacks jurisdiction to entertain a matter, the proper order to make is an order striking out the action. He referred the Court to the cases of;
NDIC V. C.B.N (2002) 7 NWLR (PT. 766) 272.
LAWANA V. SHETTIMA (2001) FWLR (PT. 71) at 1870.
Learned counsel to the Appellant submitted further that, where there is allegation of forgery of certificate, the mens rea and indeed other ingredients must be proved beyond reasonable doubt before a Court can make pronouncement. It therefore follows that the trial Court must order oral evidence to be given. He referred the Court to the case of MAIHAJA v GAIDAM & 2 ORS (2018) 4 NWLR (pt 1610) 454.
He contended that, the allegations of presentation of forged certificates made by the 1st Respondent against the Appellant before the trial Judge was not proved at all not to talk of being proved beyond reasonable doubt.
He argued that it was equally not shown that the Appellant forged the certificates in issue herself purporting them to be genuine nor that she presented them to INEC knowing them to be forged and not genuine. There was no oral evidence presented to the Court by the various schools where the certificates originated from showing that the certificates were not genuine certificates that they did not emanate from those schools.
Learned counsel submitted that failure to do so was fatal to the case of the 1st Respondent and this Court is urged to allow this appeal.
He submitted that assuming without conceding that the Appellant told lies and the documents were forged, then the 1st Respondent/Claimant can only show falsity of the document by Section 31 of the Electoral Act 2010 (As amended). It is respectfully submitted that under Section 31 of the Electoral Act 2010 (As amended), the accuser is required to obtain a Certified True Copy of the Document filed with INEC and tender same in Court. He referred the Court to Section 31 (2),(3 ),(4),(5) of the Evidence Act.
He urged the Court to resolve this issue in favour of the Appellant and to upturn the judgment of the Lower Court as the middle names contained in the document are corrupt versions of the name Olayemisi Abosede which we urge the Court to take Judicial Notice of in Nigeria languages. It is not strange for name Olayemisi to be written as Yemisi or Olayemi, or for the name Abosede to be written Bose or Sade. He referred the Court to page 122(8) 8c- f of the Records.
He maintained that the case of ESENOWO VS. UKPONG (1999) 6 NWLR (PT. 608) PG 611 AT 621 is not on all four with the instant case.
In view of the argument above, he urged the Court to allow the appeal and strike out the suit for lack of jurisdiction.
Learned counsel to the 1st Respondent on their part submitted that the FCT High Court has the requisite jurisdiction to hear and adjudicate on the matter.
He argued that to determine whether this matter on appeal is a pre-election matter or not, we must bring it within the ambits of any of Sections 285 (14) (a) (b) or (c) of the 1999 Constitution (Fourth Alternation) 2017. We must therefore look at the claims of the parties to see if it falls into any of the pigeon holes created in sub Paragraphs (a) (b) or (c) of Subsection (14) of Section 285 CFRN (Supra).
On the case brought to the trial Court by the 1st Respondent, He referred the Court to the Originating Summons at pages 1 to 93 of the Records and the questions submitted for resolution at page 2 of the Records of appeal.
Learned counsel contended that question 1 to 6 challenges whether having lied in her form aforesaid she does not stand disqualified for the lies as she agreed to be by subscribing to the attestation in the forms. The reliefs sought are at page 3. He argued that there is no relief relating to any primary election claimed there in. Also the affidavit in support of the Originating Summons can be found at pages 6,7,8 and 9 of the record and there is no paragraph where any allusion is made regarding the conduct of the primaries. He insisted that this is therefore not a claim brought pursuant to Section 87(9) of the Electoral Act 2010 (as amended). It equally does not fall within the purview of Section 285(14) Constitution.
On the Appellant’s contention that the 1st Respondent herself agreed and conceded that the action was brought pursuant to Section 87(9) of the Electoral Act 2010 (as amended), learned counsel submitted that parties on their own cannot donate jurisdiction to a Court. The jurisdiction of a Court is statutory and a ground of appeal is not a ground of law just because the author said so. He referred the Court to the cases of;
C.A.S LTD VS FIDELITY BANK (2018) 5 NWLR (pt. 1611) 160 at 173-174
CUSTOMARY COURT OF APPEAL, EDO STATE VS AGUELE (2018) 3 NWLR (PT.1607) 369 at 397.
He maintained that it is pedestrian to argue that since the 1st Respondent had said before the lower Court that the matter was brought pursuant to Section 87(9) of the Electoral Act 2010 (as amended) then it was a pre election matter. More so, the portion of the address relied upon by the Appellant is nothing but a restatement of the general principle of law. It was never applied anywhere in the whole gamut of the 1st Respondent’s written address.
On the issue of territorial jurisdiction, learned counsel to the 1st Respondent submitted that they had shown earlier that what is in issue before the trial Court is not the primary election held at Asaba.
He argued that the case of MAILANTARKI VS TONGO (2018) 6 NWLR (Pt. 1614) 69 is not a carte blanch that all election matters that are held in a State must be tried and decided in that State. It depends on what aspect of the election process is in contention. The case decides that where something begins and terminates completely in a given State, then only that given State shall have territorial jurisdiction to determine the issue.
He contended that since this case is not in respect of any action or event that arose and was completed in Delta State. He referred the Court to page 182 of the Records of Appeal particularly paragraph 8 of the affidavit on that page.
He submitted that it is the fact that the National Headquarters of All Political Parties are situate in Abuja. This fact is so notorious that it is no longer necessary to prove. He referred the Court to Section 124 of the Evidence Act.
He contended that the Appellant has misconstrued this suit to be about the primaries in Asaba, while it is not. The suit according to the learned counsel, concerned with the information given in the nomination and expression of interest forms of the Appellant which were false. He maintained that the FCT High Court has jurisdiction to adjudicate over the matter.
Learned counsel to the 1st Respondent referred the Court to the Appellant’s name in her expression of interest form, nomination form, name in her diploma in liberal Arts certificate and the findings of the trial Court, and submitted that there is no appeal against the two findings. He referred the Court to the cases of;
EXXON MOBIL CORP VS. ARCHIANGA (2018) 14 NWLR PT. 1639 AT 251.
GOV. EKITI STATE VS. OLAYEMI (2016) 4 NWLR PT.1501 AT 36.
He argued that the factual basis of this appeal is faulty and a lie, the Appellant is proceeding on the illusion that this case is based on information supplied to INEC. He contended that, the case of the 1st Respondent is based on the falsity of the information contained in the APC Forms which the Appellant filled and submitted to the APC. He referred the Court to the pages 19-22, of the record and the nomination forms at page 23 to 34 of the record.
He contended that cases are decided based on facts presented by the parties and not on facts presented to Court. He referred the Court to the cases of; EKPENYONG VS. NWOKO (2018) 13 NWLR PT. 1636 AT 348. ISIEC VS EHIRIM (2013) 3 NWLR PT.1340 AT 183.
He urged the Court to resolve in favour of the 1st Respondent and to dismiss the appeal.
In her reply brief, the Appellant contended that Section 285 (14) of the CFRN (Fourth Alteration Act No. 21) 2017 is an expanded version of Section 87 (9) of the Electoral Act, 2010, and the case of the 1st Respondent at the trial Court falls under Section 285 (14) supra which is impair material with Section 87 (9) of the Electoral Act, 2010.
In resolving these issues it is pertinent for me here to reproduce Section 285 (9) of the CFRN (4th Alteration Act 2017) for ease of reference, it provides thus;
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
The dictionary meaning of the word “pre” is “before”, and when used as a prefix to the noun “election”, it therefore means before the election. In other words, pre-election matter means actions, conduct or any event taking place or occurring before the election. See ADEOGUN VS. FASHOGBON (2008) 17 NWLR (PT.1115) P.149 AT 181. In the instant case I have carefully perused the 1st Respondent’s originating processes filed at the trial Court, the 1st Respondent’s counsel contention that her claims are not brought pursuant to Section 87 of the Electoral Act 2010 as amended, is grossly misconceived, because, the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. See the 1st Respondent/Claimant’s reliefs 5-8 at pages 3-4 of the record.
The 1st Respondent’s action was filed at the trial Court on 2nd November, 2018 on an event (primary election) which took place on 4th October, 2018 in Asaba Delta State. That is 29 days after the primary election. Election related matters are sui generis. They are unlike ordinary civil proceedings without a time bar. See: HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007 AT 1046. In the instant case the Failure of the 1st Respondent to file her suit not later than 14 days after the action complained, as required by Section 285 (9) of the CFRN (4th Alteration Act 2017) is fatal to her case. The suit was filed out of time. The trial Court had no jurisdiction to entertain it. All the processes and the judgment are nullity and are struck out.
On the issue of territorial jurisdiction of the trial Court, the civil jurisdiction of the High Court of the Federal Capital Territory, Abuja is provided for under Section 257 of the Constitution of the Federal Republic of Nigeria, 1999 which provides thus:
“257 (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any Person.
(2) The reference to civil or criminal Proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
The Appellant’s complaint borders on the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja. The Constitution is silent on the “territorial jurisdiction” of the High Court of the Federal Capital Territory, Abuja. It should be noted, however, that in CHIEF CHIKA OKAFOR & ANOR V. ALHAJI TIJANI HASHIM & 2 ORS (2001) 1 NWLR (PT. 693) 183 AT 190 this Court, PER BULKACHUWA, JCA (as he then was, now PCA) held, and I agree with my learned brother that “the High Court of the Federal Capital Territory is confined to the Federal Capital Territory’ (Abuja).
It is not in dispute as can be seen from the 1st Respondent’s originating processes that, the 1st Respondent and the Appellant wanted to contest election into Senate to represent Delta North Senatorial District, the 1st Respondent’s and the Appellant’s address is in Delta State and the primary election of the 3rd Respondent was conducted in Delta State. To this extent, I agree with the Appellant that it is the Delta State High Court that has territorial jurisdiction in respect of the claimant’s claim, but not FCT High Court Abuja. This is because a Court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another state; See RIVERS STATE GOVERNMENT OF NIGERIA V. SPECIALIST KONSULT (SWEDISH GROUP) (2005) 2 S.C. (PT.11) 121.
In DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) 310; OGUNDARE, JSC stated the position on the matter inter alia thus:-
“I have taken pains to discuss this judgment on territorial jurisdiction of a Court in view of recent developments whereby litigants rather than suing in the proper Courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their Court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.”
The issue of territorial jurisdiction of the trial Court can be raised at any time, even in the Supreme Court for the first time without leave. See SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) AT 460. In the instant case the primary election, the subject matter that lead to the 1st Respondent action at the trial Court was conducted in Delta State. This is not contested. The action was instituted at the FCT High Court Abuja, which has no territorial jurisdiction over the action conducted in Delta State by virtue of Section 255 of the CFRN 1999. See also the case of MAILANTARKI (SUPRA).
In the instant case there is nothing shown by the 1st Respondent to have occurred in Abuja for the FCT High Court to have jurisdiction, except that the expression of interest and the nomination forms were submitted to the 3rd Respondent’s headquarter at Abuja.
In view of all the above the issues in this appeal are resolved against the 1st Respondent.
This appeal is meritorious and it is hereby accordingly allowed. The decision of the lower Court is hereby set aside as the trial Court had no jurisdiction to entertain the 1st Respondent’s suit.
Cost of N200,000.00 is awarded to the Appellant against the 1st Respondent.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Abdu Aboki, JCA.
I am in complete agreement with the reasoning and conclusion which I adopt as mine. I too, having considered the argument of the parties to this appeal hold that this appeal has merit. The appeal is accordingly allowed and I abide by the orders as made in the lead judgment of my learned noble brother.
I must say however that under Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration No. 21) Act, 2017 the law now says:
“(9)Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
This has therefore set down the limitation of action concerning pre-election matters and it is required that anyone who is aggrieved about any aspect of the pre-election exercise can take action in Court within 14 days from the day the event occur. Anything outside the 14 days cannot be a live cause of action necessary to activate the jurisdiction of the Court.
In the instant case, the 1st Respondent filed her suit before the Court below on the 2nd on November, 2018 which is calculated to be 27 days after Senatorial District Primary Election which took place on the 4th of October, 2018 in Asaba, Delta State. Since this had been found clearly to be the case, it means the claim of the 1st Respondent before the trial Court was dead on arrival. It was caught by the Limitation Law which is Section 285(9) of the Constitution as amended by the 4th Alteration Act, No. 21 2017. The effect of this is that the 1st Respondent had no live cause of action at the time she took this action before the trial Court. Since the cause of action has thus expired, there was no cause of action before the trial Court to activate the jurisdiction of the trial Court.
See CBN v. Okojie (2015) LPELR 24 740 (SC); Ado Ibrahim v. Lawal & Ors (2015) LPELR -24736; Hassan v. Aliyu & Ors (2010) 17 NWLR (Pt. 1223) 547 (SC) and Ajayi v. Adebiyi & Ors. (2012) 11 NWLR (Pt. 1310) 137. The suit was therefore incompetent. The decision of the lower Court on the incompetent cause of action is therefore illegal, null and void. The decision of the trial Court in that respect cannot stand and it cannot equally be used to support any appeal before this Court. The appeal on that basis is grossly incompetent, and must be and it is hereby struck out. Since ours is an intermediate appellate Court, we on the side of caution would took into the merit of the case which we have also found to be positive and meritorious. It is for these reasons and the more elaborate reasons given in the lead judgment that I also hold that this appeal ought to be and it is hereby allowed.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Prince Orji Nwafor Oriza with him, Ogechi Igwe (Mrs.), C.O. Nwaka (Miss) and S.N Obinna, Esq.For Appellant(s)
A. Oba Maduabuchi, SAN with him, Oseobo Ifedioka for the 1st Respondent.
Ogechukwu Ifeakandu with him, E.I. N. S.I Ogbonna for the 3rd Respondent.
2nd Respondent absent and unrepresentedFor Respondent(s)
