ALL PROGRESSIVE CONGRESS v. ZAYYAD IBRAHIM & ORS
(2019)LCN/13154(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of April, 2019
CA/A/178/2019
RATIO
PRE-ELECTION MATTERS: SUI GENERIS
It is the law in the light of the decisions in HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547; SALIM VS. CPC (2013) 6 NWLR (PT. 1351) 501; WAMBAI VS. DONATUS (2015) ALL FWLR (PT. 752) 1673; GWEDE VS. INEC (2014) LPELR ? 23763 (SC) and INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR 24839 (SC), that pre-election matters are sui generis and time is of the essence, and that it is trite that where a party files an appeal out of time, it is considered stale and cannot be resolved by the Court. The Ruling until set aside on appeal remains valid and subsisting.PER MOHAMMED BABA IDRIS, J.C.A
APPEAL: GROUNDS OF APPEAL: A GROUND OF APPEAL MUST RELATE TO THE ISSUES RAISED IN THE JUDGMENT
In the case ofDAVIES VS. GUILD PINE LTD (2004) 5 NWLR PART 865 PAGE 131, it was held that:
‘A ground of appeal must relate to the issues raised in the judgment against which an appeal lies. A ground of appeal which does not relate to the decision of the trial Court in the judgment appealed against is incompetent and ought to be struck out? in effect, if no notice of appeal is filed in respect of any decision, then no appeal has been initiated against the decision and there can be no question setting forth grounds of appeal which are complaints against the decision. Unless there is an appeal against a decision, there can be no talk of complaints against the decision. Consequently, grounds of appeal cannot be raised in respect of a decision in a Notice of Appeal filed against another decision of the same Court. Any complaint that does not relate to the decision appealed against cannot be relevant in the appeal and will, therefore, be incompetent”PER MOHAMMED BABA IDRIS, J.C.A
JURISDICTION: IMPORTANCE
The issue of jurisdiction cannot be over emphasized. In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR PART 1651 PAGE 247 AT 260 PARAS B ? C, it was held per Bage, JSC that:
“it is settled law that jurisdiction as a threshold or fundamental issue can be raised anytime during the trial of a suit up to finality… In that wise, it can be raised at any stage of a case both at trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it by itself suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision.”PER MOHAMMED BABA IDRIS, J.C.A
JURISDICTION: EFFECT OF A COURT NOT HAVING JURISDICTION
Further, in the case of PDP VS. OKOROCHA (2012) 15 NWLR PART 1323 PAGE 205, it was held that:
“Jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of the proceedings.”PER MOHAMMED BABA IDRIS, J.C.A
APPEAL: GROUNDS OF APPEAL THAT RAISES A FRESH ISSUE IS DEFECTIVE
In the case ofHUSSAINI VS. OGBUOKIRI (2004) 7 NWLR PART 873 PAGE 524, it was held that a ground of appeal that raises a fresh issue is defective, incompetent and liable to be struck out.
In the case of METUH VS. FRN (2018) 10 NWLR PART 1628 PAGE 399 AT 414 PARA C it was held per Eko, JSC that:
“…failure to obtain leave of Court where necessary to file a particular ground of appeal, upon which an issue is raised for resolution of the case, could render both such ground of appeal and the issue so formulated therefrom incompetent. AJIBADE V PEDRO (1992) 5 NWLR PART 241 PAGE 257 AT 262, AROWOLO V ADIMULA (1991) 8 NWLR PART 212 PAGE 753.”PER MOHAMMED BABA IDRIS, J.C.A
COURTS WILL NOT PUNISH A LITIGANT IF HE HAS DONE WHAT HE OUGHT TO BUT WAS ABORTED BY MISTAKE OF COURT STAFF
Generally, the Court will not punish a litigant who has done all that he is supposed to do in perfecting his procedural steps, but which steps or procedure are aborted by mistake of Court Registry staff. In the case of BUZU VS. GARABI (2000) ALL FWLR PART 23 PAGE 1191, it was held that when a plaintiff has done all he is required to do to commence an action but Court officials delay in taking steps that would have commenced such action, the plaintiff should not be penalized for this default, because it is not his default. Also, see the case of YUSUFU VS. OBASANJO (2003) ALL FWLR PART 185 PAGE 507.PER MOHAMMED BABA IDRIS, J.C.A
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVE CONGRESS Appellant(s)
AND
1. ZAYYAD IBRAHIM
2. MUHAMMED ABUBAKAR
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MOHAMMED BABA IDRIS, J.C.A (Delivering the Leading Judgment): By an originating summons filed on the 31st of October, 2018, before the High Court of the Federal Capital Territory, the 1st Respondent as Plaintiff instituted the action giving rise to this appeal wherein, he sought before the Court the determination of the following question:
1. WHETHER in the light of the provisions of Section 87(4)(C) of the Electoral Act 2010 (As amended), Independent National Election Commission Regulation for the Conduct of Political party primaries, Article 20 (III) Constitution of the All Progressive Congress and Regulation 14(II) of the Guidelines for the Nomination of Candidates for the 2019 General Elections- Indirect primaries, the 1st Defendant has the rights and powers to field the 2nd Defendant as its candidate for the 2019 General Election for the post of the member, representing the Igabi Federal Constituency in Kaduna State?
RELIEF SOUGHT
?A. A Declaration that in the light of the provisions of Section 87(4)(C) of the Electoral Act 2010 (As amended), Independent National Election Commission Regulation for the conduct of
1
political party primaries, Article 20 (III) Constitution of the All Progressive Congress and Regulation 14(II) of the Guidelines for the Nomination of Candidates for the 2019 General Elections- Indirect primaries, the purported nomination of the 2nd Defendant as the candidate of the 1st Defendant in the 2019 General Elections for the post of the Member, representing Igabi Federal Constituency, Kaduna State in the House of Representatives of the National Assembly is illegal, unlawful, null and void and of no effect whatsoever.
B. A Declaration that in the light of the provisions of Section 87(4)(C) of the Electoral Act 2010 (As amended), Independent National Election Commission Regulation for the conduct of political party primaries, Article 20 (III) Constitution of the All Progressive Congress and Regulation 14(II) of the Guidelines for the Nomination of Candidates for the 2019 General Elections- Indirect primaries the Plaintiff is the duly nominated candidate of the 1st Defendant in the 2019 General Elections for the post of the member, representing Igabi Federal Constituency, Kaduna State in the House of Representatives of the National Assembly.
2
C. An Order of this Honourable Court setting aside the purported nomination of the 2nd Defendant as the candidate of the 1st Defendant in the 2019 General Elections for the post of the Member, representing Igabi Federal Constituency, Kaduna State in the House of Representatives of the National Assembly in view of the outcome of the primaries held by the 1st Defendant on the 7th of October, 2018.
D. An Order of this Honourable Court, directing the 3rd Defendant to accept, receive, process the name of the Plaintiff instead of the name of the 2nd Defendant, as the candidate of the 1st Defendant in the 2019 General Elections for the post of the Member, representing Igabi Federal Constituency, Kaduna State in House of Representatives of the National Assembly in view of the outcome of the primaries held by the 1st Defendant on the 7th of October, 2018.
E. And for such further and other orders that this Honourable Court shall deem fit to make in the circumstance.
Before going into the substance of the appeal, here is a summary of the facts involved in the Appeal.
?The 1st Respondent who was plaintiff at the trial Court is a member of the Appellant, a political party.
3
The Appellant presented to its members, Expression of interest forms and Nomination forms for the purpose of contesting the primaries to elect candidates that will contest on its platform in the 2019 General Election for the post of Member Representing Igabi Federal Constituency, Kaduna State in the National Assembly under its platform. The 1st Respondent purchased the Expression of Interest form and Nomination forms from the Appellant. He was screened and cleared to contest in the primary election for the nomination for the post of the Member, representing Igabi Constituency, Kaduna State.
?The said primary elections for the purpose of nominating the candidate for post of the Member Representing Igabi Federal Constituency, Kaduna State in the National Assembly took place on the 7th of October, 2018. The said election was supervised by the Kaduna State Legislative Primary Elections Committee and the Independent National Electoral Commission, the 3rd Respondent.
Four aspirants contested the election and the 1st Respondent had the highest votes. He had 197 votes casted in his favour and he was declared winner of the election. The 2nd
4
Respondent and other aspirants that contested alongside with him wrote petitions to the 1st Defendant’s Election Appeal Tribunals and none of their appeals was upheld.
However, the 1st Respondent was surprised when he learnt on the 21st of October, 2018 that his name was omitted on the list submitted by the Appellant to the 3rd Respondent on the 18th October, 2018 that it was the name of the 2nd Respondent who had only 2 (two) votes casted in his favour that was submitted as the candidate of the Appellant in the 2019 General Elections for the Post of the Member Representing Igabi Federal Constituency, Kaduna State.
Aggrieved by this, the 1st Respondent filed an Originating Summons, seeking for the determination of the aforementioned questions and reliefs before the High Court of the Federal Capital Territory. Upon being served with the originating processes, the 1st and 2nd Defendants who are the Appellant and the 2nd Respondent filed a Notice of preliminary objection, challenging the jurisdiction of the Court on the grounds of territorial jurisdiction of the Court and that the originating summons was not signed by the Plaintiff or the legal practitioner.
5
The Appellant and 2nd Respondent also filed their counter affidavits in opposition to the originating summons wherein it was deposed by the 2nd Defendant that he is a member of the Appellant who was also an aspirant for the 2019 General Elections for the Post of the Member Representing Igabi Federal Constituency, Kaduna State. He said that the primary election did not commence early on the date it was scheduled to take place. However, to his surprise, hoodlums and thugs believed to have been employed by the 1st Respondent trooped into the venue of the election and they started harassing the delegates that intended to cast their votes. Most of the delegates had to run for their dear lives. At the end of the election that was marred with massive violence, the 1st Respondent emerged winner.
The 2nd Respondent then wrote a letter of complaint and petitions through the Appellant’s National Working Committee and merit was found in his appeal. His name was then submitted to the 3rd Respondent by the Appellant as its candidate for the said election.
The trial Court on the 13th of February, 2019 gave judgment in favour of the 1st Respondent.
6
Unhappy with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 26th of February, 2019 comprising of four grounds of appeal.
Parties to the appeal before this Court filed and exchanged their respective briefs of argument.
In the appellant’s brief of argument as settled by his counsel Babatunde John Kwame Ogala Esq which is dated 20th March, 2019, the following issues for determination were distilled from the grounds of appeal:
1. Whether having regards to the totality of the facts of this case and the state of our electoral jurisprudence the trial Court had jurisdiction to entertain the suit. (Distilled from Grounds 1 and 2 of the Notice of appeal).
2. Whether the trial Court was right to proceed to determine this suit in the face of a fundamental defect in the Originating Summons not being in accordance with Order 2 Rule 3(4) of the High Court of the Federal Capital Territory, Abuja. (Distilled from Ground 2 of the Notice of Appeal).
3. Whether there was sufficient material before the Court to make a finding of fact in favour of the depositions of the Plaintiff and consequently grant him the reliefs sought.
7
In the 1st Respondent’s brief of argument as settled by his counsel Abdul Mohammed Esq. which was filed on the 20th of March, 2019, the following issues for determination were distilled from the grounds of appeal:
1. Whether the learned trial Court judge has jurisdiction to hear the Plaintiff’s case. (Distilled from Grounds 1 of the Notice of Appeal)
2. Whether the Originating Summons is competent (Distilled from Ground 2 of the Notice of Appeal).
3. Whether the learned trial Court judge was right when he relied on Exhibit F3, G and H to find that the 1st Respondent was the duly nominated candidate of the Appellant (Distilled from Grounds 3 to 5 of the Notice of Appeal).
Before delving into the Briefs of argument, it is pertinent to deal first with the preliminary objection filed by the 1st Respondent, challenging the Grounds of Appeal contained in the Notice of Appeal.
In his preliminary objection, the 1st Respondent has raised seven issues which are:
a) Whether Ground 1 of the Notice of Appeal, having not arisen from the judgment of the learned trial Court, can be contained in the Notice of
8
Appeal without the requisite leave being sought and obtained within the 14 days permissible to appeal against pre-election matters as envisaged by Section 285(11) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration Act No 21) 2017
b) Whether the Appellant can raise Ground 2 being a fresh issue without seeking leave of Court?
c) Whether Issue 1 distilled from Grounds 1 and 2 of the Notice of Appeal is competent having not arisen from the judgment of the learned trial Court?
d) Whether issue 1 and 2 are competent in view of the proliferation of issues from a single ground of appeal?
e) Whether Issue 3 is competent having not been distilled from any of the grounds of appeal?
f) Whether Issue 1 is competent having been distilled from Grounds 1 and Two?
g) Whether Ground 3,4 and the omnibus ground are liable to be struck out having been abandoned by the Appellant?
On issue one, the 1st Respondent has argued that going by the Notice of Appeal filed by the Appellant, the Appellant is seeking to appeal against the judgment of the lower Court delivered on the 13th February, 2019. The provision of
9
Order 7 Rules 2 of the Court of Appeal Rules 2016 was cited to support the argument of 1st Respondent that an appellant seeking to appeal must indicate whether he is appealing against the whole or part of the judgment of the Court. If there are interlocutory rulings he intends to appeal against, he must also indicate that he is appealing against the interlocutory judgment. He cannot formulate grounds on issues that are not contained in the judgment.
It was further argued that the issue of jurisdiction never arose in the entire judgment of the lower Court but the issue of jurisdiction was determined in a distinct ruling delivered by the learned trial judge on the 13th of February, 2019. The Appellant did not indicate that he was appealing against it. Thus, making Ground one of the Appellant’s Notice of Appeal incompetent. The Court was urged to strike it out. The case of EGBE VS. ALHA]I (1990) 1 NWLR PART 128 PAGE 546 @ 590 was cited.
To buttress his point, learned 1st Respondent’s counsel has argued that Section 285 (11) of the Constitution of the Federal Republic of Nigeria (4th Alteration) Act 2017 provides that
10
an Appellant has 14 days to appeal against any ruling of the lower Court. Failure to appeal against the ruling delivered on the 13th February, 2019 pertaining to jurisdiction makes Ground 1 of the Notice of Appeal liable to be struck out. Reliance was placed on ANPP VS. GONI (2012) ALL FWLR PART 623 PAGE 1821. It was emphasized that since this was a pre-election matter, time was of the essence.
The Learned 1st Respondent’s counsel has argued that in the event that it is contended that the issue of jurisdiction can be raised for the first time at any time, once a competent Court has ruled over it, it remains a valid judgment unless appealed against then set aside. The Court was urged to strike out issue one since they did not emanate from the judgment of the lower Court.
On issue two, the 1st Respondent has argued that Ground 2 of the Appellant’s Notice of Appeal raised the issue of the competence of the originating summons due to the absence of the Seal of the Registrar. This has amounted to raising a fresh issue on appeal without seeking the leave of this Court. The case of GUMEL VS. MAKANJUOLA (2016) LPELR ? 41566 was cited.
11
However, in the event that it is contended by Appellant’s counsel that it amounted to a jurisdictional issue, the 1st Respondent has argued that it is trite law that mistake of Court officials will not be visited on litigant and such will be treated as an irregularity which is incapable of depriving the Court of its adjudicatory powers.
The provisions of Order 2 Rules 3(4) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 which state that the issue is an irregularity and not jurisdictional was also cited.
On issue three, the 1st Respondent has argued that it is trite that issues for determination must arise from competent Grounds of appeal. Thus, an issue for determination distilled from an incompetent ground of appeal is liable to be struck out. Reliance was placed on AMADI VS. ORISAKWE (1997) 7 NWLR PART 511 PAGE 161.
This Court was urged to strike out ground one of the Notice of Appeal as it did not emanate from the judgment of the lower Court appealed against.
On issue 4, the learned 1st Respondent’s counsel has argued that issues one and two were formulated from Ground 2 of the Notice of Appeal. It was argued that more
12
than one issue was distilled from ground two of the Notice of Appeal which is forbidden by the law. Reference was made to ONYIOHA VS. AYASHE (1996) 2 NWLR PART 432 PAGE 567.
The Court was urged to strike out issue one and issue two because both were distilled from Ground 2.
On issue five, the 1st Respondent has argued that issue three for determination of the Appellant was distilled from no ground of appeal. Thus, making it liable to be struck out. Reliance was placed on KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) LPELR ? 42588.
On issue six, the 1st Respondent has argued that Ground one of the Notice of Appeal did not arise from the judgment of the lower Court being appealed against. It was also submitted that the issue formulated from an incompetent ground of appeal is liable to be struck out having been abandoned by the appellant. Reference was made toUMAR VS. NVRI & ANOR (2018) LPELR ? 45628.
On issue seven, the 1st Respondent has argued that the Appellant has not distilled any issue for determination from grounds three and four. Thus, they are deemed abandoned and liable to be expunged from any appeal proceedings.
13
Reference was made to ADELEKAN VS. ECU-LINE NV (2006) 12 NWLR PART 993 PAGE 33 AT 49.
The Appellant on the other hand has submitted additional authorities on the issue of jurisdiction which will serve as a Reply to the Preliminary Objection. The Appellant has argued that the issue of jurisdiction can be raised for the first time on appeal without leave of Court. The cases of COMPAIGNIE GENERALE DE GEOPHYSIQUE (NIGLT) C.G.G. NIG. LTD VS. MOSES AMINU (2015) LPELR ? 24463; DANGOTE GEN. ILE PRODUCTION LTD VS. HASCON ASS. (NIG) LTD (2013) 15 NWLR PART 1379 were cited.
Also, on whether the competence of an originating summons bothers on jurisdiction and can be raised without leave of Court, the Appellant has argued that it borders on the issue of jurisdiction and thus, it does not require leave. The cases of
MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 @ PAGE 595 and KIDA VS. OGUNMOLA (2006) ALL FWLR PART 327 PAGE 402 were relied on.
Having summarized 1st Respondent’s arguments on the Preliminary Objection and the Appellant’s response to same, the grounds of appeal contained in the Notice of Appeal are hereby reproduced:
14
GROUND ONE
The Learned trial judge erred in law when he did not decline jurisdiction to hear this suit in that the court lacked territorial jurisdiction.
GROUND TWO
The Learned trial judge erred in law when he failed to strike out the Originating Summons as constituted before the Court for not being in compliance with the mandatory provisions of Order 2 Rule 3(4) of the High Court of the Federal Capital Territory Civil Procedure Rules 2018 thereby robbing the trial Court of jurisdiction to entertain the suit.
GROUND THREE
The Court erred in law when it did not avert its mind to the settled principle of law in the cases of ANGADI V PDP & ORS (2018) LPELR-44375(SC), PDP V SYLVA (2012) 13 NWLR PART 1316 PAGE 85 AT 145 A-E, GWEDE V INEC (2014) 18 NWLR PART 1438 PAGE 56 AT 148-149 H-B ONUOHA V OKAFOR (1983) 2 SCNLR 244, EMENIKE V PDP (2012) NWLR PART 1315 PAGE 556 that an allegation of wrongful substitution falls outside the purview of Section 87(9) of the Electoral Act 2010 (as amended) but squarely within the matters adjudged as intra-party affairs which are non justiciable and even where justiciable only culminates in the award of damages.
15
GROUND FOUR
The Court erred in law when it did not abide the settled principle of law as was further affirmed in AGU V MADUNEMELE (2016) LPELR-40176 (CA) that a plaintiff seeking declaratory reliefs, even in the face of admission by the Defendant must succeed on the strength of his case and not the weakness of the defence.
I will resolve the issues raised in the preliminary objection one after the other.
a) Whether Ground 1 of the Notice of Appeal, having not arisen from the judgment of the learned trial Court, can be contained in the Notice of Appeal without the requisite leave being sought and obtained within the 14 days permissible to appeal against pre-election matters as envisaged by Section 285(11) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration Act No 21) 2017.
The Appellant had at the trial Court filed a Notice of Preliminary Objection dated the 29th of November, 2018 wherein the Appellant had challenged the jurisdiction of the Court on the grounds that the cause of action arose in Kaduna and thus, the High Court of the Federal Capital Territory lacked territorial jurisdiction to entertain the
16
suit. Still in the preliminary objection, the Appellant argued that the issue of nomination of a candidate is the internal affair of a political party and the Courts have no business interfering with same. Lastly, it was also argued that the Originating Summons was not signed by either the Plaintiff or his counsel.
I have read through the Records of Appeal and the Ruling on the Preliminary Objection is contained on pages 477 483. It was delivered on the 13th of February, 2019, the same day the judgment on the substantive suit was also delivered. The trial learned trial judge dismissed the notice of preliminary objection stating that it lacked merit.
The provisions of Section 285 (11) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) provides that:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
Going by this provision, the Appellant had already raised the issue of jurisdiction at the trial Court and same had been adjudicated upon and a ruling had been delivered. The Appellant had 14 (fourteen) days to appeal
17
against the said decision but failed to make the most out of the opportunity provided by the law.
It is the law in the light of the decisions in HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547; SALIM VS. CPC (2013) 6 NWLR (PT. 1351) 501; WAMBAI VS. DONATUS (2015) ALL FWLR (PT. 752) 1673; GWEDE VS. INEC (2014) LPELR ? 23763 (SC) and INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR 24839 (SC), that pre-election matters are sui generis and time is of the essence, and that it is trite that where a party files an appeal out of time, it is considered stale and cannot be resolved by the Court. The Ruling until set aside on appeal remains valid and subsisting.
In the case ofDAVIES VS. GUILD PINE LTD (2004) 5 NWLR PART 865 PAGE 131, it was held that:
‘A ground of appeal must relate to the issues raised in the judgment against which an appeal lies. A ground of appeal which does not relate to the decision of the trial Court in the judgment appealed against is incompetent and ought to be struck out? in effect, if no notice of appeal is filed in respect of any decision, then no appeal has been initiated against the decision and there
18
can be no question setting forth grounds of appeal which are complaints against the decision. Unless there is an appeal against a decision, there can be no talk of complaints against the decision. Consequently, grounds of appeal cannot be raised in respect of a decision in a Notice of Appeal filed against another decision of the same Court. Any complaint that does not relate to the decision appealed against cannot be relevant in the appeal and will, therefore, be incompetent”
By virtue of Order 7 Rule 2 (1) of the Court of Appeal Rules 2016 (as amended), any party dissatisfied with the decision of a High Court can initiate the appeal process only by the filing of a notice of appeal. In effect, if no notice of appeal is filed in respect of a particular decision, then no appeal has been initiated against the decision and there can be no question of setting forth grounds of appeal which are complaints against the decision.
Finally, in the recently decided Supreme Court case of SYLVA VS. INEC (2018) 18 NWLR PART 1651 PAGE 310 AT 333, it was held per I. T. Muhammed, JSC that:
“…thus, a ground of appeal should be based on an issue in controversy
19
arising from the judgment/decision or appeal constituting a challenge to the ratio of the decision. There can, therefore be no appeal against an obiter dictum and neither can there be an appeal on a finding made by a Court which has no bearing on the final order made by that Court”
I am in agreement with the argument of the 1st Respondent to the extent that the above represents the general position of the law. However, the questions that must be asked and answered are: Can the issue of jurisdiction be ignored by this Court because the Appellant has failed to appeal against the ruling when it was adjudicated upon at the trial Court? Should the determination of whether the trial Court had jurisdiction to hear the matter be abandoned because the Appellant was negligent in doing the needful? I do not think so.
The issue of jurisdiction cannot be over emphasized. In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR PART 1651 PAGE 247 AT 260 PARAS B ? C, it was held per Bage, JSC that:
“it is settled law that jurisdiction as a threshold or fundamental issue can be raised anytime during the trial of a suit up to finality… In that wise, it
20
can be raised at any stage of a case both at trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it by itself suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision.”
Further, in the case of PDP VS. OKOROCHA (2012) 15 NWLR PART 1323 PAGE 205, it was held that:
“Jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of the proceedings.”
From these cited authorities, it is clear that the issue of jurisdiction is one that cannot be ignored even if it is wrongly raised by the Appellant because it is the lifeline of all trials. This Court will not adjudicate on a matter when the issue of jurisdiction has been brought before it even if it was brought in a wrong package. This Court will not dwell on technicalities and mistakes of counsel in determining the issue of jurisdiction. In the case of
21
ALIOKE VS. OYE (SUPRA) it was held per Odili JSC, that:
“the duty of the Supreme Court is to do substantial justice, stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but is manifestly seen and duly acknowledged by all and sundry as justice both in content and con, Thus, even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
Ground 1 of the Appellant’s Notice of Appeal is hereby competent as it is an issue of jurisdiction which cannot be overlooked. I hereby dismiss issue one of the notice of preliminary objection filed by the 1st Respondent.
GROUND 2
b) Whether the Appellant can raise Ground 2 being a fresh issue without seeking leave of Court?
At the trial Court, the issue of the competence of the originating processes was raised in a Notice of Preliminary Objection by the Appellant on the grounds that the Originating Summons was not
22
signed by the Plaintiff or his legal practitioner. The issue was resolved and dismissed by the learned trial judge in the ruling delivered on the 13th of February, 2019.
The Ground 2 of the Notice of Appeal filed by the Appellant is hereby reproduced for ease of reference:
“The Learned trial Judge erred in law when he failed to strike out the Originating summons as constituted before the Court for not being in compliance with the mandatory provisions of Order 2 Rule 3(4) of the High Court of the Federal Capital Territory Civil Procedure Rules 2018 thereby robbing the trial Court of jurisdiction to entertain the suit.”
The way this ground is couched, one would think the issue of the competence of the Originating Summons being in compliance with Order 2 Rule 3 (4) of the High Court of the Federal Capital Territory Civil Procedure Rules 2018 had been canvassed at the lower Court and same had been adjudicated upon. This is not the case.
Even in the notice of preliminary objection filed at the trial court, the Appellant’s argument was that the Originating Summons was not signed by the Plaintiff or his legal practitioner of which the
23
trial Court had delivered a ruling dismissing it.
Raising the issue of the competence of the Originating Summons for not being in compliance with Order 2 Rule 3 (4) of the High Court of the Federal Capital Territory Civil Procedure Rules 2018 amounts to raising a fresh issue for which leave must be sought.
In the case ofHUSSAINI VS. OGBUOKIRI (2004) 7 NWLR PART 873 PAGE 524, it was held that a ground of appeal that raises a fresh issue is defective, incompetent and liable to be struck out.
In the case of METUH VS. FRN (2018) 10 NWLR PART 1628 PAGE 399 AT 414 PARA C it was held per Eko, JSC that:
“…failure to obtain leave of Court where necessary to file a particular ground of appeal, upon which an issue is raised for resolution of the case, could render both such ground of appeal and the issue so formulated therefrom incompetent. AJIBADE V PEDRO (1992) 5 NWLR PART 241 PAGE 257 AT 262, AROWOLO V ADIMULA (1991) 8 NWLR PART 212 PAGE 753.”
The argument of the Appellant that it is a jurisdictional issue of which leave ought not to be sought and obtained cannot hold water. Assuming it is a jurisdictional issue where leave is
24
not necessary as contended by Appellant’s counsel, non-compliance with the said provisions cannot rob the Court of jurisdiction to adjudicate over the matter. This is because the non-sealing of an originating process by the Court’s Registry can never be said to be the fault of counsel or litigant.
Generally, the Court will not punish a litigant who has done all that he is supposed to do in perfecting his procedural steps, but which steps or procedure are aborted by mistake of Court Registry staff. In the case of BUZU VS. GARABI (2000) ALL FWLR PART 23 PAGE 1191, it was held that when a plaintiff has done all he is required to do to commence an action but Court officials delay in taking steps that would have commenced such action, the plaintiff should not be penalized for this default, because it is not his default. Also, see the case of YUSUFU VS. OBASANJO (2003) ALL FWLR PART 185 PAGE 507.
In the Supreme Court case of DUKE VS. AKPABUYO LOCAL GOVERNMENT (2006) ALL FWLR PART 294 PAGE 559, it was held that the Court should not visit the errors or omission of Court’s Registry officials on a litigant, unless it is shown that the litigant and or his
25
counsel was a party thereto.
Finally, in the Supreme Court case of FAMFA OIL LTD VS. ATTORNEY GENERAL OF THE FEDERATION (2003) ALL FWLR PART 184 PAGE 195, it was held that the Court will also refuse to punish litigants when the mistake committed by such registry staff go to fundamental issues like the Registrar signing an originating summons instead of the judge.
Thus, if the Appellant’s counsel had the intention of canvassing arguments in respect of ground 2, being a fresh issue, he ought to have sought for leave to raise it on appeal.
I hereby dismiss ground 2 of the Notice of Appeal and resolve issue two of the notice of preliminary objection in favour of the 1st Respondent.
GROUND 3
c) Whether Issue 1 distilled from Grounds 1 and 2 of the Notice of Appeal is competent having not arisen from the judgment of the learned trial Court?
The first issue for determination raised by the Appellant was distilled from Grounds one and two of the Notice of Appeal. The issue bordered basically on the jurisdiction of the trial Court. Having found ground one of the Notice of Appeal competent, issue one for determination is also competent.<br< p=””
</br<
26
In the case of AMADI VS. ORISAKWE (1997) 7 NWLR PART 511 PAGE 161, it was held that “…an issue arising from an incompetent ground of appeal is itself rendered incompetent.”
Also, in the case of ISONGUYO VS. EYO & ANOR (2016) LPELR ? 41206, it was held that:
“an incompetent ground of appeal cannot birth a competent issue for determination. It is trite that where a ground of appeal is incompetent and has been struck out, any argument offered in support thereof in the brief of argument becomes irrelevant. Therefore, any issue for determination based on such incompetent ground of appeal goes to no issue and would also be struck out.AGBAKA V AMADI (1998) 11 NWLR PART 572 PAGE 16, AKPAN V EFFIONG (2010) 17 NWLR PART 1223 PAGE 421 SC.”
However, since ground one of the Notice of appeal has been held to be competent by this Honourable Court, issue one for determination having being distilled from it is competent.
Issue three of the notice of preliminary objection is hereby resolved against the 1st Respondent.
GROUND 4
d) Whether issue 1 and 2 are competent in view of the proliferation of issues from a single ground of appeal?
27
The Appellant’s counsel had distilled issue 1 and 2 from Ground 2 of the Notice of Appeal. It is trite law that issues for determination must be limited to fall within the scope of the grounds of appeal filed since they must arise from them. Proliferation of issues is therefore not permissible. It follows therefore that while the number of issues formulated may tally or be less than the grounds of appeal, it is not permissible that they may be more than the grounds filed.
However, as earlier held, the issue of jurisdiction is very sacrosanct and technicalities will not rob this Court the opportunity of determining it.
Issue four of the notice of preliminary objection is hereby resolved against the 1st Respondent.
GROUND 5
e) Whether Issue 3 is competent having not been distilled from any of the grounds of appeal?
Clearly from the Appellant brief of argument where the issues for determination distilled from the grounds of appeal are stated, it is obvious that issue 3 is not distilled or related to any ground of appeal. The Appellant’s counsel has either merely left it to the Court’s discretion to figure out which ground of
28
appeal it relates to or learned Appellant’s counsel failed to advert his mind to the importance of making sure that all issues for determination must relate to a ground of appeal.
In the case of OSINUPEBI VS. SAIBU (1982) 7 SC, it was held that every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from the ground of appeal is incompetent. See also the case of GOVERNMENT OF GONGOLA STATE VS. TUKUR (1987) 2 NWLR PART 56 PAGE 308.
Also, in the case of DADA VS. DOSUNMU (2006) 18 NWLR PART 1010 PAGE 134 AT 165, it was held that issues or questions for determination are framed from the grounds of appeal properly before the Court. An issue or issues not formulated from the grounds of appeal will go to no issue and will be struck out by the Court. SeeIDIKA VS. ERISI (1988) 2 NWLR PART 78 PAGE 563.
Issue five of the Notice of Preliminary Objection is hereby resolved in favour of the 1st Respondent.
GROUND 6
(f) Whether Issue 1 is competent having been distilled from Grounds 1 and 2?
?Having already held that Ground 1 and issue one for determination are competent because they
29
border on jurisdiction, I hereby resolve this issue against the 1st Respondent.
GROUND 7
g) Whether Grounds 3, 4 and the omnibus ground are liable to be struck out having been abandoned by the Appellant?
The Appellant’s counsel distilled 3 (three) issues for determination from the four grounds of appeal. However, the 3 (three) issues for determination were distilled only from the first and second grounds of appeal. There is nothing on the face of the brief to show that issues were distilled from grounds three and four of the Grounds of appeal.
In the Supreme Court case of GALADIMA VS. STATE (2018) 13 NWLR PART 1638 PAGE 357 AT 373 PARA G, it was held per Ariwoola, JSC that:
“It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific
30
order to have it struck out yet it should still be struck out.”
See also the cases of MAOBISON INTER LINK ASS LTD VS. UTC (NIG) PLC (2013) 9 NWLR PART 1359 PAGE 197; BISIRIYU AKINLAGUN & ORS VS. TAIWO OSHOBOJA & ANOR (2006) 12 NWLR PART 993 PAGE 60.
In this appeal, no issues were formulated from grounds 3 and 4 of the Notice of appeal. This simply means that those grounds are deemed abandoned. Accordingly, the said grounds 3 and 4 are struck out.
The preliminary objection has succeeded in part. I will then proceed to identifying the real issues for determination in the substantive appeal to enable me determine and resolve same. I adopt the sole issue for determination left having struck out others.
1. Whether having regards to the totality of the facts of this case and the state of our electoral jurisprudence the trial court had jurisdiction to entertain the suit.
On the issue whether the trial Court had the jurisdiction to hear and deliver judgment in this case, a question that must be answered is; what is jurisdiction in law and what are its ingredients?
?In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION
31
(1998) 10 NWLR PART 570 PAGE 392, jurisdiction was defined as follows:
“It is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
c) The case comes the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
?See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR PART 352 PAGE 506;
32
WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR PART 30 PAGE 617; ODOFIN VS. AGU (1992) 3 NWLR PART 229 PAGE 350.
In the recent Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR PART 1651 PAGE 247 AT PAGE 260 PARAS B, speaking on the nature of jurisdiction, Bage, J.S.0 stated as follows:
“The law is settled that jurisdiction as a threshold or fundamental issue that can be raised anytime during the trial of a suit up to finality.”
Also, in the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR PART 1323 PAGE 205, it was held that:
“jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.”
There are also different kinds of jurisdiction. There is the Original jurisdiction of Court, Appellate jurisdiction, concurrent jurisdiction, exclusive jurisdiction, limited jurisdiction, unlimited jurisdiction, subject matter jurisdiction, territorial jurisdiction amongst others.
?The Learned counsel for the Appellant has raised the issue
33
of territorial jurisdiction, stating that the cause of action arose in the process of selection and nomination of the candidate of the Appellant for the House of Representative, Kaduna state, thus, it is the High Court of Kaduna State that can adjudicate over the subject matter and not the High Court of the Federal Capital Territory where the 1st Respondent had instituted the action and obtained judgment in his favour. The Appellant has argued that the 1st Respondent was wrong to have approached the High Court of the Federal Capital Territory and the trial judge was wrong to have assumed jurisdiction over the matter. He further argued that the High Court of the Federal Capital Territory did not have the territorial jurisdiction to adjudicate on the subject matter which is a complaint against the indirect primaries held in Igabi in Kaduna State. Thus, this amounts to forum shopping which is frowned against by our laws.
The Appellant had filed at the trial Court a notice of preliminary objection dated the 29th of November, 2018 wherein he had raised the issue of territorial jurisdiction, arguing that it was the High Court
34
of Kaduna that had the jurisdiction to adjudicate over the matter and not the High Court of the Federal Capital. The trial judge had decided the preliminary objection in his ruling delivered 13th of February, 2019. The trial Court in its ruling said that the cause of action arose in Abuja when the National Secretariat of the 1st Defendant submitted the name of the 2nd Respondent to the 3rd Respondent. Thus, the FCT high Court had jurisdiction.
The Black’s Law Dictionary defined Territorial jurisdiction as:
“Jurisdiction over cases arising in or involving persons residing within a defined territory. Territory over which a government, one of its Courts or one of its subdivisions has jurisdiction.”
In the Supreme Court case of TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR PART 117 PAGE 517 AT PP 560-561, it was held per Oputa, JSC that:
“… the first is the legal capacity, the power and authority of a Court to hear and determine a judicial proceeding- in the sense that it has the right and power to adjudicate concerning the particular subject-matter in controversy. The second is the geographical area in which and over which the legal
35
jurisdiction of the court can be exercised. This area of authority is called the area of geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction.”
In determining whether a Court has jurisdiction to hear a matter, it is the originating summons that must be looked into. The 1st Respondent filed an Originating Summons, an affidavit in support and attached exhibits, showing that he was the winner of the primary election that took place at Igabi Constituency in Kaduna State.
It is obvious from his depositions in the affidavit in support that the cause of action arose as stated in paragraph 30, when the 1st Respondent deposed that:
“To my utmost surprise, I learnt on the 21st of October, 2018 that my name was omitted and sent to the 3rd Defendant on the 18th October, 2018 and the name of the 2nd Defendant, who only secure 2 votes at the 1st Defendant’s Primaries held on the 7th October, 2018, was the name that was sent to the 3rd Defendant as the candidate of the 1st Defendant in the 2019 General Elections for the
36
Post of the Member Representing Igabi Federal Constituency, Kaduna State under the platform of the 1st Defendant,”
The word “sent” used by 1st Respondent in the above paragraph does not specify the place where the name was submitted. The name was definitely sent from Kaduna after the primary elections but there is no place in the affidavit in support of the originating summons that it was sent to Abuja or the cause of action arose in Abuja. It is my view that it is the submission of the 1st Respondent counsel that is stating that the cause of action arose in Abuja and not the evidence before the Court.
The 1st Respondent has argued in paragraphs 53 ? 55 that the cause of action arose in Abuja because the Form CF001 given to the 2nd Respondent was filled and deposed to in Abuja. Thus, the FCT High Court had jurisdiction over the matter. It is trite law that submission of counsel, not matter how beautifully couched cannot take the place of evidence. In the case of TALLEN & ORS VS. DAVID JONAH JANG & ORS (2011) LPELR 9231, it was held per Ogunbiyi, JCA that:
“Needless to restate the well standing principle of law that an address of
37
counsel, no matter how sound, convincing or brilliant, it can never take the place of evidence.”
The Appellant’s counsel has argued on this issue vehemently, citing the cases of MAILANTARKI VS. TONGO & ORS (2017) LPELR ? 42467 (SC) and DALHATU VS. TURAKI (2003) 15 NWLR PART 843 PAGE 310 to support his argument that the trial Court lacked territorial jurisdiction while the 1st Respondent has placed heavy reliance on the case of LAU VS. PDP & ORS (2017) LPELR ? 42800 (SC).
I have painstakingly read all the three cases cited in order to thoroughly resolve this issue. In the cases of MAILANTARKI VS. TONGO & ORS and DALHATU VS. TURAKI, it was held in both cases that it is not the rules of Court that vest jurisdiction in the Court but rather the statute creating that Court. In this respect, it is to the Constitution of the Federal Republic of Nigeria, 1999 that one has to look to determine the jurisdiction of the High Court of the Federal Capital Territory Abuja for it is Section 255(1) of the Constitution that established that Court. Section 257 sets out its jurisdiction and it reads:
“257(1) Subject to the provisions of Section 251 and any
38
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.”
For the purpose of exercising jurisdiction, each State of the Federation is independent of the other and the jurisdiction of its Court is limited to matters arising in its territory.
It is irrelevant that the name of the 2nd Respondent was
39
“sent” to Abuja (even though this assertion was not established by any evidence) or that there was deposition on oath at the High Court of the FCT in furtherance of the nomination of the 2nd Respondent as the candidate for the Appellant. There was no jurisdiction in the Abuja High Court to entertain this suit. The FCT High Court, unlike the Federal High Court has jurisdiction only in matters arising out of the Federal Capital Territory.
I have read the case of LAU VS. PDP (SUPRA) cited by the 1st Respondent counsel and it does not relate to the instant suit in anyway. In fact, the High Court of the Federal Capital Territory declined jurisdiction in the suit and same was affirmed by the Court of Appeal and Supreme Court because the subject matter related to the Senatorial seat of Northern Taraba.
It is my view that the cause of action accrued in Kaduna because there is nothing before this Court to show that the name of the 1st Respondent was indeed omitted or substituted in Abuja.
Having held that the trial Court lacked the territorial jurisdiction to determine the suit, all other issues raised in this appeal have become academic.
40
Delving into the other issues will be regarded as an academic exercise.
In the Supreme Court case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR PART 967 PAGE 346 AT 419, it was held per Niki Tobi, JSC that:
“A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
In the recently decided Supreme Court case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR PART 1628 PAGE 592 AT 595, it was held per Okoro JSC that:
“It is trite law that Courts do not expend valuable judicial time and energy on academic issues or exercise.’
Finally, in the Supreme Court case of POPOOLA VS. STATE (2018) 10 NWLR PART 1628 PAGE 485 AT 496, it was held Per Rhodes-Vivour, JSC that:
“it is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty. Judges are to decide live issues.”
?I find merit in this Appeal and it is hereby allowed. The judgment of the lower
41
Court in Suit No: FCT/HC/CV/040/2018 is hereby set aside as it lacked the jurisdiction to entertain the suit of the 1st Respondent filed before it.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
42
Appearances:
B. J. K. Ogala, Esq. with him, D. Oketade, Esq. and J. Ishola, Esq.For Appellant(s)
A. Mohammed, Esq. with him, A.M. Saleh, Esq. and C.N. Onyia, Esq. for the 1st Respondent.
N.C. Nwaiwu, Esq. for the 2nd RespondentFor Respondent(s)
Appearances
B. J. K. Ogala, Esq. with him, D. Oketade, Esq. and J. Ishola, Esq.For Appellant
AND
A. Mohammed, Esq. with him, A.M. Saleh, Esq. and C.N. Onyia, Esq. for the 1st Respondent.
N.C. Nwaiwu, Esq. for the 2nd RespondentFor Respondent
