ALL PROGRESSIVES CONGRESS & ANOR v. CONGRESSMAN BIMBO DARAMOLA & ANOR
(2019)LCN/13524(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/A/444/2019
RATIO
JURISDICTION: THE JURISDICTION OF THE FEDERAL CAPITAL TERRITORY HIGH COURT
On the basis of facts exactly the same with the facts of this case, the Supreme Court and this Court have restated that the Federal Capital Territory High Court has no jurisdiction to entertain such a suit in a long line of cases such as Dalhatu v Turaki (2003) 15 NWLR (pt.843) 310 at 339 and 340, Mailantarki v Tongo (2017) LPELR- 42467 (SC), APC v Emenike (2019) LPELR 46620 (ca), Audu v APC & Ors (unreported – ca/a/173/2019 of 11-4-2019) and Adeleke v Raheem & ors (unreported ca/a/304/2019 of 30-5-2019).
In Dalhatu v Tukraki (2003) 15 NWLR (Pt 843) 310 at 342 the Supreme Court held thusly-
“It is undeniable that the events that led to that action had to do with the Governorship of Jigawa State. It is of course not debateable that Jigawa State is totally distinct and different from the Federal Capital Territory, Abuja. It seems to me that if any action was to be properly commenced, that action should have initiated in the Court in Jigawa State.PER EMMANUEL AKOMAYE AGIM, J.C.A.
JURISDICTION: TERRITORIAL JURISDICTION: A COURT IN ONE STATE DOES NOT HAVE JURISDICTION OVER A MATTER WITHIN THE JURISDICTION OF ANOTHER STATE
In similar vein, the Supreme Court recently in Mailantarki v. Tongo (2017) LPELR – 42467 (SC) held that “it is settled law that a Court in one State does not have jurisdiction to hear and determine a matter, within the exclusive jurisdiction of another State… There cannot be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory. In the instant case, the cause of action, which is the primary election of the 2nd Respondent, took place in Gombe State. the appeal committee also sat in Gombe State. There is no justification for the institution of the case before the High Court of the FCT in Abuja. The filing of the suit before that Court is a clear example of “forum shopping” in the hope of securing a favourable outcome. This practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner who filed the suit.”PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVES CONGRESS
2. PETER OWOLABI Appellant(s)
AND
1. CONGRESSMAN BIMBO DARAMOLA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/444/2019 was commenced on 26-4-2019 when the appellant herein filed a notice of appeal against the judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/068/2018 delivered on 16-4-2019 by Bello Kawu J. The notice of appeal contains 12 grounds of appeal.
The appellant and 1st respondent filed their respective briefs as follows- appellant’s brief, 1st respondent’s brief and the appellant’s reply to 1st respondent’s brief.
The appellant’s brief raised the following issues for determination-
1. Whether the Lower Court was not wrong in dismissing the preliminary objection of the Appellants and assumed jurisdiction on the suit, when the matter was filed outside 14 days prescribed by the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration Act, No. 21) 2017 and thereby becomes statute barred.
?2. Whether the Lower Court had the requisite Territorial Jurisdiction to entertain the suit when the Primary Election which was the crux of the matter was conducted in Ekiti
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State outside the Federal Capital Territory Abuja where the suit was instituted.
3. Whether the Lower Court was right in failing to deliver a ruling on the motion of the Appellants praying the Court to order filing of pleadings before proceeding to hear the suit/deliver its final judgment; and whether having regards to the hostile nature of the suit and conflicting Affidavits placed before the Court by the parties, the Lower Court rightly dismissed the Motion of the Appellants.
4. Whether the Lower Court was not wrong in nullifying the nomination of the 2nd Appellant without proper evaluation of the Affidavit evidence viz-a-viz Exhibit D and further ordered that the Certificate of Return issued to the 2nd Appellant be withdraw and same issued to the Runner up in the General Election, in the peculiar circumstances of this appeal.
1st Respondent brief raised the following issues for determination –
I. Whether the learned trial judge failed to deliver ruling in respect of the Appellants’ motion which prayed for filing of pleadings before hearing of the Originating Summons and whether he was justified in dismissing the said Motion.””
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II. Whether the learned trial judge was right in assuming jurisdiction in respect of the 1st Respondent’s Suit by concluding that the suit was filed within the statutory period of Fourteen (14) days.
iii. whether having regards to the content of the Originating Summons and the Supporting Affidavit the learned trial judge was right in assuming territorial jurisdiction over the 1st Respondent’s Suit.
iv. Whether the trial judge perfectly and correctly evaluated the relevant Affidavit and documentary evidence adduced by the parties before reaching his various conclusions and decisions in respect of the 1st Respondent’s Suit.
v. Whether the learned trial judge was right in making a consequential Order by which the 2nd Respondent (INEC) was ordered to issue certificate of return to candidate that came second in the General Elections.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief;
Let me start with issue No 1 which ask “Whether the Lower Court was not wrong in dismissing the preliminary objection of the Appellants and assumed jurisdiction on the suit, when the matter was filed
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outside 14 days prescribed by the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration Act, No. 21) 2017 and thereby becomes statute barred.
The part of the judgment of the trial Court complained against under this issue reads thusly. “I find no substance on issue one raised in the notice of preliminary objection based on Section 285 (9) of the Constitution which provides:-
Not withstanding 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 even, decision or action complained of in the suit.”
The Claimant claimed that it was not contradicted that it became aware that the 2nd defendant name was forwarded to the 3rd Defendant as 1st defendant candidate on 18th October, 2018. By law that is the day the cause of action arose and filling this suit on 31st October, 2018 therefore not out of time.
Learned Counsel for the appellant argued that the cause of action arose on 5-10-2018 when the 2nd appellant was declared winner of the primary election
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that held that day, that it was wrong for the trial Court to have held that the cause of action arose on 18-10-2018 when the name of the 2nd appellant was forwarded by the 1st appellant to 2nd respondent as its candidate for the general election of member of House of Representatives for Oye/Ikole (Ekiti North) Federal Constituency of Ekiti State to be held on 23-2-2019, when the event or decision complained of by the 1st respondent’s petition to the Chairman of the Electoral Appeal Committee was the declaration of 2nd appellant as winner of the primary election on 5-10-2018.
Learned Counsel for the 1st Respondent argued that the cause of action was the submission of the name of the 2nd appellant as candidate for the said general election, notwithstanding the facts that no primary election was conducted on 5-10-2018 or any other date, that the fact that it was on 18-10-2018 that the 1st respondent became aware of the nomination of the 2nd appellant by the 1st appellant to the 2nd respondent was not denied, that the appellant did not deny paragraph 26 of the affidavit in support of the originating summons that deposed that the Appeal Panel neither invited
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1st respondent nor conveyed to him any decision over the 1st respondent’s petition to it and that he only knew that nothing would be done about his petition, when the 2nd respondent on 8-10-2018 published the name of the 2nd appellant as the 1st appellants’ candidate for the election, that the trial Court correctly held that the cause of action arose on the said 18-10-2018.
Let me now determine the merits of the above arguments.
It is glaring from the depositions in paragraphs 18 to 26 of the affidavit in support of the originating summons that the event or decision the 1st respondent was aggrieved with and which triggered his 10-10-2018 petition to the Chairman of the Appeal Panel of the 1st appellant is the declaration of the 2nd appellant as the winner of the 5-10-2018 primary election, that the 1st respondent said did not hold. This is clearly brought out by paragraphs 18 to 23, 25 and 26 of the affidavit in support of the Originating summons which depose as follows-
18. In Ikole Local Government Area, by 9.am, party faithful from wards 1-12 had assembled and but the we neither saw nor witness the arrival of the Committee or the Local
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primaries.Originating Committee or even election materials for the conduct of the
19. I enquired about the absence of the materials or election officials. My enquiry led me to the Area Commander’s office where I noticed that the vehicle containing the election materials were kept on the instruction, guide or directions of Messrs Akin Owolabi, Bola Elegbeleye and Abejide from Ipao till 5pm. When the Area Commander informed us that the vehicle will be returned to Ado Ekiti.
20. In Oye Local Government, I noticed that photocopies of election result sheets distributed. While I was monitoring the elections, I was accosted by Mr. Adeyanju who pulled a gun o me and caused the Police to arrest and detained me.
21. To my surprise the following results were announced by the 1st Defendant’s Ekiti State Legislative Primary Elections Committee.
SN Name of Aspirant Number of Votes Remarks
1. Bimbo Daramola 2,285
2. Jide Oke
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1,375
3. Peter Owolabi 10,275 Winner
4. Femi Fa kiyesi 1,547
5. Bunmi Ogunleye 1,547
6. Femi Ajayi 460
7. Refus Abegunde Ojo 365
22. I know that the above is not a true representation of what transpired at the 1st Defendant’s Primary elections for the nomination of its candidate of the 1st Defendant for the post of Member, representing the Ekiti North Federal Constituency I in Oye/Ikole Local Government Areas in Ekiti State in the House of Representatives in the 2019 Generation Elections
25. I then petitioned the Chairman of the 1st Defendant’s Appeal Committee under cover of my letter dated 10th October 2018. A copy of the acknowledge copies of the Petitions are attached as Exhibit E.
26. The Appeal Panel
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neither invited me nor conveyed to me any decision. I only knew that the 1st Defendant was not going to do anything about my Petition when the 3rd Defendant published the name of the 2nd Defendant as the candidate of the 1st Defendant for the Ekiti North Federal Constituency I in Oye/Ikole Local Government Areas in Ekiti State on the 18th October 2018.
The fact that the Appeal Panel had not consider and pronounce upon the petition when the 1st appellant submitted the 2nd appellants’ name to the 2nd respondent as its candidate for the election did not change the basis of his complain from the declaration of the 2nd appellant on 5-10-2018 as the winner of a 5-10-2018 primary election that is said not to have held, to one of submitting or publishing his name as the party’s candidate for the election on 18-10-2018.
?
It was because the 1st respondent was aggrieved with the process and declared result of the primary election on 5-10-2018, that is why he petitioned on 10-10-2018 to the Chairman of the Election Appeal Committee of the 1st appellant. This is obvious form the face of the said petition (Exhibit E) attached to the affidavit in support of the
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originating summons and the paragraphs of the affidavit reproduced above.
In the light of the foregoing, I do not agree with the decision of the trial Court that the cause of action in the suit leading to this appeal occurred on 18-10-2018, when the 2nd appellant’s name was published by the 2nd respondent as the 1st appellant’s candidate for the election and not 5-10-2018, when the 2nd appellant was declared winner of the primary election of 5-10-2018. I rather hold that the cause of action arose on 5-10-2018 when the 2nd appellant was declared winner of disputed 5-10-2018 primary election.
Since the cause of action arose on 5-1-2018, the filing of the suit at the trial Court on 31-10-2018 was contrary to S.285 (9) of the 1999 Constitution, as the suit was not filed within 14 days from 31-10-2018. It was filed on the 27th day after the occurrence of the event or the decision complained of.
S.285-(9) of the 1999 Constitution provides that “Notwithstanding to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence
