ALL PROGRESSIVES GRAND ALLIANCE v. DR. OKEY J. CHIDOLUE & ORS
(2019)LCN/12664(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/A/1179/2018
RATIO
JURISDICTION: 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 SHELLIM 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 Anambra 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 Anambra State by virtue of Section 255 of the CFRN 1999. See also the case of MAILANTARKI v. TONGO & ORS (SUPRA).” ABDU ABOKI, J.C.A.
WORDS AND INTERPRETATION: MEANING OF THE WORD ‘PRE’
“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.” 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
ALL PROGRESSIVES GRAND ALLIANCE (APGA) Appellant(s)
AND
1. DR. OKEY J. CHIDOLUE
2. CHIEF VICTOR IKE OYE (NATIONAL CHAIRMAN (APGA)
3. NORBERT OBI (ANAMBRA STATE CHAIRMAN (APGA)
4. PRINCE NICHOLAS UKACHUKWU
5.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 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 13th December, 2018 by Hon. Justice V. B. Ashi J. in Suit No. FCT/HC/CV/3084/2018.
The summary of the facts of this case leading to this appeal was that the 1st Respondent, as Plaintiff at the Trial Court, filed an originating summons on the 19th day of October, 2018 asking for the determination of the questions as can be found at pages 1 – 3 of the Record of Appeal. Upon the favourable determination of these questions, the 1st Respondent also seeks the reliefs as can be found at pages 3 – 5 of the Record of Appeal.
The summons is supported by an affidavit of 40 paragraphs deposed to by the 1st Respondent himself, with ten (10) exhibits attached. The case of the 1st Respondent is that he was screened and cleared by the Appellant to participate in the 3rd October 2018 Anambra Senatorial District Election, for the 2019 Senatorial Office. He contended that the 4th Respondent was unlawfully returned as the winner thereto, and a Certificate of Return issued to him, despite the fact that a majority of the authentic delegates accredited for the election subsequently confirmed that they voted overwhelmingly for the 1st Respondent. His appeal to the Appeal Panel of the Appellant yielded no results; hence the initiation of the suit giving rise to this appeal at the Trial Court.
Upon being served with the originating summons, the defendants filed counter affidavits in defence. The Appellant and the 2nd and 3rd Respondents, as well as the 4th Respondent filed their Notices of Preliminary Objection to the jurisdiction of the Trial Court, on the 15th of November, 2018, and 16th of November 2018, respectively, praying the Trial Court in the main, to strike out the suit for being statute barred in that the action was filed out of the time limited by statute for filing pre-election cases and to entertain the suit, the cause of action of which arose in Anambra State.
The Trial Court in its judgment overruled the objections of the Appellant and the 2nd and 3rd Respondents, and nullified the APGA Primary Election held on 3rd of October, 2018 at Ekwulobia Township Stadium, holding that the Primary Election was improperly conducted and in breach of Party Guidelines and the Electoral Act, 2010.
Dissatisfied with the said judgment of the Trial Court, the Appellant who was the 1st Defendant at the Trial Court appealed to this Court vide her Notice of Appeal dated and filed on the 14th of December, 2018. The said notice appeal which appears on pages 1789 – 1793 of the printed record is upon three grounds.
The record of appeal was compiled and transmitted to this Court on the 27th of December 2018. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the Rules of this Court. The Appellants’ brief of argument is dated and filed 27th December 2018, while the 1st Respondent’s Brief of Argument on the other hand, is dated the 19th of January, 2019, filed on the 21st of January 2019 but deemed properly filed and served on the 21st of January 2019. A Reply brief dated 22nd of January 2019 was also filed on behalf of the Appellant, on the same date.
On 24th of January, 2019, the appeal was heard before the Court. The Appellant’s Counsel adopted the Appellant’s brief of argument. He urged the Court to allow the appeal. The 1st Respondent’s Counsel on his part adopted the 1st Respondent’s brief of argument and urged the Court to dismiss the appeal for lacking in merit.
The Appellant from her 3 grounds of appeal distilled two issues for determination as follows:
1. Whether the Trial Court ought to have declined jurisdiction and competence to entertain the 1st Respondent’s suit at the Trial Court by sustaining the Appellant’s Preliminary Objection.
2. Whether the Trial Court’s judgment was perverse, speculative and against the weight of affidavit and documentary evidence.
These two issues were adopted by learned counsel for the 1st Respondent.
Parties are ad idem on the issues arising for determination. I also adopt same and I am so guided. The two are determined together.
It is submitted for the Appellant that the Trial Court ought to have declined jurisdiction and competence to entertain the 1st Respondent’s suit ab initio.
Learned counsel for the Appellant maintained that the suit that gave rise to this appeal was constitutionally barred and not justiciable as the 1st Respondent had not acquired the requisite locus standi to activate the jurisdiction of the Trial Court. That the complaint of the 1st Respondent was against the non compliance with the provisions of the Electoral Act, 2010 as amended and the Appellant’s 2018 Electoral Guidelines for Primary Election in the conduct of the Primary Election of 3rd of October 2018.
He opined that the 1st Respondent, failed to bring himself within the purview of Section 87 (4)(a) of the Electoral Act, 2010, as amended within the 14 days stipulated by Section 2(c) of the 1999 Constitution (Fourth Alteration No. 21) Act 2017, which created a new Section 285 (9) of the 1999 Constitution; having filed his pre-election suit at the Trial Court on the 19th of October 2018, and therefore, the Trial Court was wrong in assuming jurisdiction to entertain the 1st Respondent’s suit. He referred to the judgment of the Trial Court at Page 1761 of the Record.
Learned counsel for the Appellant called in aid, Sections 87 (4) (c)(i) and 89 (9) of the Electoral Act 2010 as amended, and submitted that by operation of law, the 1st Respondent’s suit at the Trial Court was constitutionally statute (time) barred by the provisions of Section 285 (9) of the 4th Alteration of the 1999 Constitution, as amended, and the Trial Court was robbed of the jurisdiction and competence to entertain the suit. Reliance was placed on the following cases:
P.D.P. v. C.P.C (2011) 17 NWLR (PT 1277) 485 at 504; SANDA v. KUKAWA LOCAL GOVT COUNCIL (1991) SCNJ 35; IKENYA & 2 ORS v. P.D.P & 3 ORS (2012) 12 NWLR (PT 1315) 493; AYOGU EZE v. P.D.P & ORS (2018) LPELR 44907 (SC); ADEGBUYI v. APC & ORS (2014) LPELR 124214 (SC).
He submitted that the subject matter of the Appellant’s Primary Election was held on 3rd October 2018 for Anambra South Senatorial District at Ekwulobia Township Stadium in Anambra State outside the territorial jurisdiction of the Trial Court, and therefore, the Trial Court has no territorial jurisdiction to entertain the 1st Respondent’s suit at the trial. He referred to these cases: MAILANTARKI v. TONGO & ORS (2017) LPELR 42467 (SC); DALAHATU v. TURAKI (2003) 7 SC 1.
It is argued further, on behalf of the Appellant that the decision of the Trial Court is perverse in that the Trial Court veered off and took into consideration, facts not brought before it. Learned counsel for the Appellant insisted that the Trial Court speculated when, contrary to the documentary evidence before it, went on to hold that the Certificate of Return was issued on the 9th of October 2018, instead of the 3rd of October 2018, as amply borne out by the Record before the Court. He commended this Court to the case of H.I. ZAKIRAI v. MUHAMMAD (2017) 17 NWLR (PT 1594) 181 at 244.
Learned counsel for the Appellant opined that a Claimant who claims declaratory reliefs, as in the instant case, must succeed on the strength of his own case, and not on the weakness or even admission of the clam, by the Defendant. The case of EMENIKE v. P.D.P (2012) 12 NWLR (PT 1315) 556, was cited in reliance.
In conclusion, submitted that the 1st Respondent’s case at the Trial Court was not justiciable, as the Trial Court lacked the requisite jurisdiction to entertain the case.
This Court is urged to so hold, resolve the two issues in favour of the Appellant and enter a dismissal of the 1st Respondent’s suit at the Trial Court.
In response, it is submitted for the 1st Respondent that pivot of the 1st Respondent’s case at the Trial Court was result of the primary election and the issuance on the 9th of October 2018 of the Certificate of Return for the election on the 4th Respondent.
Learned counsel for the 1st Respondent posited that the 1st Respondent’s case became activated by virtue of Section 285 (14) (a) of the 1999 Constitution (4th Alteration), because while he patiently waited for his petition to be treated by the Appeal Panel, he discovered that a Certificate of Return had been issued to the 4th Respondent. In his opinion, the computation of time began on the 9th of October 2018, as rightly held by the Trial Court and not 3rd of October 2018. He referred to the Trial Court’s decision at page 1778 of the Record.
He maintained that the 1st Respondent’s case at the Trial Court is not caught up by Section 285 (9) of the 1999 Constitution, as the actions complained about were not completed on the 3rd of October, 2018, but on the 9th of October 2018. He commended this Court to these cases:
EGBE v. ADEFARASIN (1987) 1 NWLR (PT 47) 20; WOHEREM v. EMEREUWA (2004) 6-7 SC 161
On the issue of locus standi, learned counsel for the 1st Respondent relied on Section 87 of the Electoral Act 2010, and submitted that by the originating and other initiating processes at the Trial Court, the 1st Respondent was not only an aspirant in the said primary election, but also, his interest were compromised and oppressed by the Appellant. He placed reliance on the following cases:
PDP v. SYLVA (2012) 13 NWLR (PT 1316) 85; C.P.C. v. OMBUGADU (2013) 18 NWLR (PT 1385) 118;
On the issue of territorial jurisdiction, it is submitted for the 1st Respondent that other than the primary election which took place in Anambra State, all other events took place at the Appellant’s National Office at the Federal Capital Territory, Abuja, within the territorial jurisdiction of the Trial Court. He referred to:
ORDER 3 RULE 4(1) OF THE FCT HIGH COURT RULES 2018; KAKIH v. PDP (2014) 15 NWLR (PT 1430) 37; PAGE 1773 OF THE RECORD;
On whether the decision of the Trial Court was perverse, learned counsel for the 1st Respondent opined that it is not correct, as enthused by the Appellant, that the Trial Court resorted to extraneous matters in coming to its decision, but rather that the Trial Court came to its decision, after considering all the documentary and other evidence placed before it. He placed relied on Sections 131 and 132 of the Evidence Act, 2011 and submitted that the Appellant, who failed to discharge the burden placed on it by the above Sections of the Evidence Act, cannot turn around to argue that the judgment of the Trial Court was perverse.
In conclusion, this Court is urged to reject all the submissions proffered by the Appellant, resolve these issues in favour of the 1st Respondent and dismiss the appeal.
In reply, it is submitted for the Appellant that the settled law is that jurisdiction of Trial Court under Section 87(9) of the Electoral Act 2010 (as amended), is founded on the conduct of primary elections only, and not on post primary activities of political parties. He called in aid the following authorities:
SECTION OF THE 1999 CONSTITUTION (4th ALTERATION);
SECTION 87(9) OF THE ELECTORAL ACT 2010; KAKIH v. PDP (2014) 15 NWLR (PT 1430) 37; EMENIKE v. PDP (2012) 12 NWLR (PT 1315) 556; ALAHASSAN v. ISHAKU (2016) LPELR 40083 (SC)
Learned counsel for the Appellant faulted the 1st Respondent’s claim that the events which culminated in the 1st Respondent’s cause of action were continuous, up until when the Certificate of Return was issued by the Appellant to the 4th Respondent. He posited that such perpetual continuity of cause of action would defeat the essence of Section 285(9) of the 1999 Constitution.
In reply to the 1st Respondent’s submission that the post primary activities of the Appellant took place at the FCT, thereby bringing the 1st Respondent’s suit within the jurisdiction of the Trial Court, learned counsel for the Appellant maintained that all other events which took place in Abuja after the primary election in Anambra State, are post election activities and therefore outside the contemplation of Section 87(9) of the Electoral Act 2010. He relied on the cases of:
DALHATU v. TURAKI (2003) 7 SC 1; MAILANTARKI v. TONGO & ORS (2017) LPELR 42467
In conclusion, this Court is again urged to resolve all the issues in favour of the Appellant and allow the appeal.
In resolving these issues it is pertinent to consider the import of Section 285 (9) of the 1999 Constitution (4th alteration Act 2017). The said section, for ease of reference, is hereunder reproduced.
“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, the 1st Respondent herein is contending that the events which culminated in his cause of action were continuous up until when the Certificate of Return was issued by the Appellant to the 4th Respondent. I have carefully perused the 1st Respondent’s originating processes filed at the Trial Court and the 1st Respondent’s counsel contention that his 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 at pages 3-5 of the Record. In particular,Section 87(9) of the Electoral Act 2010, as amended, provides thus: “(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
The 1st Respondent’s action was filed at the Trial Court on 19th of October, 2018 on an event (primary election) which took place on 3rd of October, 2018 in Ekwulobia, Anambra State. That is 17 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 his 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 his case and ousted the Trial Court of its jurisdiction to entertain the matter.
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 MANI 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 other aspirants, indicated their interest to contest for the Anambra South Senatorial District in the 2019 Senatorial elections. It is also not in dispute that the primary election to nominate the candidate for the said Anambra South Senatorial District to contest the 2019 Senatorial Election, was held at Ekwulobia Township Stadium, in Anambra State. To this extent, I agree with the Appellant that it is the Anambra State High Court that has territorial jurisdiction in respect of the 1st Respondent’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 SHELLIM 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 Anambra 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 Anambra State by virtue of Section 255 of the CFRN 1999. See also the case of MAILANTARKI v. TONGO & ORS (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 forms and the nomination forms were submitted to the Appellant’s Headquarters at Abuja.
These issues are resolved against the 1st Respondent.
In the final analysis, I find that this appeal is meritorious and it is hereby allowed. The decision of the Trial Court is hereby set aside as the Trial Court had no jurisdiction whatsoever to entertain the 1st Respondent’s suit.
Parties to bear their own costs.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother Abdu Aboki, JCA. I agree with reasoning and the conclusion that this appeal be allowed. I too allow this appeal and I abide by the consequential order as made in the lead judgment.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
C.I. Mbaeri, Esq.For Appellant(s)
Adeola Adedipe, Esq. with him, W.A. Adeniran, Esq. and Deborah Opete, Esq. for the 1st Respondent.
I.G. Ogugua, Esq. for the 2nd and 3rd Respondents.
Chief Olusola Oke, SAN with him, B.A. Folurunso, Esq. and J.M Mathias, Esq. for the 4th Respondent.
Oluwafemi Okumbo, Esq. for the 5th RespondentFor Respondent(s)
