ALL PROGRESSIVES CONGRESS v. CHIEF IKECHI EMENIKE & ANOR
(2019)LCN/12589(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/A/39/2019
RATIO
JURISDICTION: THE SUBJECT MATTER OF JURISDICTION AND TERRITORIAL JURISDICTION
“There is both subject matter jurisdiction and territorial jurisdiction. Section 257(1) of the 1999 Constitution provides for the subject matter jurisdiction of the High Court of the FCT It is settled law that a Court in one State does not have jurisdiction to hear and determine a matter which is within the exclusive jurisdiction of another State. See RIVERS STATE GOVERNMENT Vs. KONSULT (2005) 7 NWLR (Pt. 923) 145. 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” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVES CONGRESS Appellant(s)
AND
1. CHIEF IKECHI EMENIKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja presided over by Hon. Justice Ogbonnaya, K. N in Suit No. FCT/HC/CV/3097/2018, delivered on the 29th of November 2018 wherein all the reliefs in the Originating Summons of the 1st respondent herein (the plaintiff at the High Court, now referred to as the trial Court,) were granted.
Briefly, the 1st respondent, who was the plaintiff at the trial Court, commenced his action by Originating Summons, filed on 22nd October 2018 at the High Court of the Federal Capital Territory, Abuja. On conclusion of trial, all the reliefs were granted. The most important and germane reliefs being-
a. A DECLARATION that having regards to the subsisting Order made by Justice C.U Okoroafor on 8th March, 2018 in Suit No. HIN/41/2018- BARR. FABIAN OKONKWO AND 2 ORS VS. ALL PROGRESSIVE CONGRESS AND 5 OTHERS, the Abia State Chapter for the 1st defendant led by Dr. Emmanuel Ndukwe as Chairman and Chief Chidi Avaja as Secretary is the authentic leadership of the Party in the State.
b. A DECLARATION that the 1st defendant has no discretion to refuse, reject and/or neglect to act on the list of candidates forwarded to it, for onward transmission to the 2nd defendant, by Dr. Emmanuel Ndukwe led Abia State Chapter of the Party.
c. AN ORDER compelling the 1st defendant to forward the name of the plaintiff, being the winner of the governorship primaries conducted by the party in Abia State on 30th September 2018, the 2nd defendant as the Abia State governorship candidate of the APC in the forth-coming governorship elections,
d. AN ORDER compelling the 2nd defendant to accept and list the name of the plaintiff, being the winner of the governorship primaries conducted by the party in Abia State on 30th September 2018, as the Abia State governorship candidate of the APC in the forth- coming Governorship elections.
Being dissatisfied with the judgment of the trial Court, the appellant filed this appeal. It filed the appellant’s brief on 22/1/19 through the agency of its counsel Audu Anuga Esq. and identified four issues for determination. They are: –
1. Whether the trial Court was robbed of jurisdiction and the judgment of the trial Court a nullity, the Suit having been filed in violation of extant laws?
2. Whether the appellant’s Right to fair hearing was not breached when the trial Court delivered its judgment in the matter without allowing it to file its counter- affidavit when it was within time to do so?
3. Whether the trial Court had the powers to nominate a candidate for a political party?
4. Whether the trial Court was right to have declared the 1st respondent as the winner of the Appellant’s Governorship primaries when the said primaries was conducted by the State Chapter of the Appellant?
The 1st respondent’s brief was filed by Mr. Ujah on 25th January 2019. Two issues were distilled which includes the Issue on Preliminary Objection which the 1st respondent filed on 25/1/19, and argued it in the brief.
The 2nd respondent’s brief was filed by Mr. Yemi Pitan on 25/January 2019, but which did not urge anything.
The 1st respondent has abandoned the Preliminary Objection it filed. It is therefore struck out along with all the arguments on it, as canvassed in the 1st respondent’s brief.
The appellant filed a Reply brief but it is relevant only as to the substance of the appeal, not on the preliminary objection, which is no longer extant. I shall utilize the issues identified by the appellant in resolving this appeal.
ISSUE 2
Whether the appellant’s right to fair hearing was not breached when the trial Court delivered its judgment in the matter without allowing it to file its counter-affidavit when it was within time to do so?
Submitting on this Issue, learned counsel for the appellant pointed out that by the Originating Summons and Form 3 of the Rules of the High Court of the Federal Capital Territory 2018, the appellant as defendant, had 42 days to enter appearance and respond to the Summons, from the day he was served. Although counsel did not state when the appellant was served with the Summons, he argued that the trial Court delivered judgment on the 29th of November 2018 when the time for the appellant to file a counter-affidavit to the Summons had not expired and that the time was not abridged. This amounts to a denial of the appellant’s right to fair hearing he submitted.
In a response to this, learned counsel for the 1st respondent submitted that there was no breach of fair hearing occasioned against the appellant, as it only filed a Preliminary Objection which it had the opportunity to move. The Court dismissed the Preliminary Objection and heard the substantive matter, as the appellant did not file any counter-affidavit. Counsel argued that the appellant could not complain, as it had failed to file a counter affidavit. He also drew our attention to the fact that all the parties had agreed to abridgment of time to file their processes and so the appellant cannot complain about being heard within the stipulated 42 days. He referred to pages 153, 155 and 157 of the record.
There is no doubt that the 1st defendant only filed a Notice of Preliminary Objection to the Originating Summons by the 1st respondent and did not file a counter-affidavit. It was heard on the Preliminary Objection and so it cannot complain on it. After the Preliminary Objection was dismissed, there was no counter affidavit, indicating that the appellant was not contradicting facts. There is nothing in the record, to show that it applied to be heard on point of law and the Court refused to hear it. On that scene, it cannot complain of denial of fair hearing as it is not borne by the record.
On the 42 days, page 153 of the record is very revealing. Therein, both counsel for the 1st and 2nd defendants agreed to file their processes and be ready for hearing, the following week. This was on the 7th of November 2018. The Court, following the promises and agreements of counsel to the parties, then ordered that parties should “file and serve their processes both on the Court and the plaintiff’s counsel long before that date” i.e. the 14/1/18 being the date for hearing the application. With this, it is crystal clear that both parties agreed that their times for responding and filing processes be abridged and the Court did so. The complaint that it had 42 days to respond which was still running when the judgment was delivered, cannot therefore be a valid complaint at all. The appellant was not denied any fair hearing. Issue No. 2 is resolved against the appellant and in favour of the 1st respondent.
ISSUES 1 AND 4 TOGETHER
1. Whether the trial Court was robbed of jurisdiction and the judgment of the trial Court a nullity, the Suit having been filed in violation of extant laws?
4. Whether the trial Court was right to have declared the 1st respondent as the winner of the Appellant’s Governorship primaries when the said primaries was conducted by the State Chapter of the Appellant?
Learned counsel for the appellant submitted that by Section 285(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by 4th Alteration Act No. 21 of 2017)all pre-election matters must be filed within 14 days of the occurrence of the event, decision or act leading to the complaint of the plaintiff.
He then submitted that it is the originating process that will reveal whether the process was filed within time – ADEKOYA Vs. FHA 2008 LPELR – 105 (SC) Page 8. Counsel then referred to the affidavit in support of the Originating Summons and submitted that the cause of action arose on 30th September 2018 when the primary election was conducted but the action was filed on 22nd October 2018, to safeguard the result of the primary election. The action at the trial Court, was therefore – statute-barred he argued and so the Court lacked jurisdiction to entertain it ? BUREMOH Vs. AKANDE (2017) LPELR ? 41565 (SC) 43 ?44 and INEC Vs. OGBADIBO (2015) LPELR – 24839 (SC) 35.
Counsel also referred to MAILANTARKI Vs. TONGO & ORS (2017) LPELR – 42467 (SC) 29 – 32, to submit that as the primary election was conducted in Abia State for Abia governorship election, the trial Court had no territorial jurisdiction to adjudicate on it, irrespective of any action taken at the headquarters of the APC in Abuja or INEC.
Learned counsel for the appellant referred to Article 13.4 (viv) of the appellant’s Constitution and submitted that as the 1st respondent was relying on the primary election conducted by the State Chapter of the appellant, and not that of the National Working Committee, he had no locus to institute the action and the primary election conducted by the State Chapter is null and void. EZE Vs. PDP (2018) LPELR 44907 (SC) 41 and YAR’ADUA Vs. YANDOMA (2015) 4 NWLR (Pt. 1448) 123 at 182 ? 183. He urged us to resolve the issue in favour of the appellant.
Responding, learned counsel for the 1st respondent argued that issue of territorial jurisdiction is a fresh issue which was not canvassed at the lower Court. As such, it can only be raised with leave in this Court ? SAPO Vs. SUNMONU (2010) 11 NWLR (Pt. 1205) 374.
Still, learned counsel argued that the case ofMAILANTARKI Vs. TONGO (SUPRA) relied upon by the appellant, is not applicable here as the facts are not the same. In this Suit at the trial Court, learned counsel submitted that it was to enforce the results of the primary election as reflected in Exhibit H conducted pursuant to the decision in HIN/4/2018 (Exhibit B) against the 2nd and 3rd respondents who reside within the Federal Capital Territory Abuja and is different from Mailantarki’s case (Supra).
Learned counsel for the 1st respondent also argued that as there was no counter-affidavit filed by the appellant, there was no challenge on facts that the 1st respondent emerged victorious and his name ought to have been forwarded to the 2nd respondent as the governorship aspirant for Abia State. The Court therefore did not usurp any responsibility but acted according to Section 87 (9) of the Electoral Act.
On the complaint by the appellant that the primary election was conducted by the State Chapter of the appellant and ought not to be endorsed, counsel for the 1st respondent argued that the appellant cannot introduce “arguments not founded on the record of the Court below”. He urged us to dismiss the Issues.
On the issue of filing pre-election actions within 14 days, which is a jurisdictional issue and can be raised without leave here, and when the cause of action arose, learned senior counsel for the 1st respondent referred to paragraph 18, page 9 of the record, as that giving the 1st respondent the cause of action to go to Court. The Paragraph states: –
“That information filtering in from the headquarters of the 1st defendant points to the fact that some forces are bent on swapping my name with the name of one of the defeated aspirants and forwarding same to 2nd defendant as the governorship candidate of the party in Abia State.”
The above did not show that his name was actually “swapped” with another person. Information alone, cannot grant a cause of action as no event has occurred as at that time, giving the 1st respondent, a right, to enforce in a Court of law. Not only was that not a cause of action, the day this “information” filtered was not stated therein. Unless a date is stated, the day the cause of action accrued, for the purpose of determining the limitation period, cannot be ascertained. For that purpose therefore the said paragraph 18 cannot be relied upon as the 1st respondent did, to determine the cause of action and when it accrued.
On the other hand, paragraph 11 of the affidavit in support of the Originating Summons (page 7) deposed that the primary election relied upon by the 1st respondent, was conducted on 30th September 2018. The Originating Summons was filed on the 22nd of October 2018, outside the 14 days allowed by Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act No. 21 of 2017). Once the Constitution fixes a time for doing a thing, especially on election or pre-election matters like this, nobody can extend the time. If the time is not hounoured, the action will lapse and the Court will lack jurisdiction to entertain it. See MARWA Vs. NYAKO (2012) 6 NWLR (Pt. 1296) 199 and ANPP Vs. GONI (2012) 7 NWLR (Pt. 1298) 147. Filing the action outside the 14 days period allowed by the Constitution, has made stale any claim or right of action the 1st respondent had and the jurisdiction of the trial was clearly therefore thereby ousted. It ought not to entertain the Suit, talk less of granting the reliefs prayed for. It was an exercise in futility.
Further, it is not controverted, that the primary election was conducted in Abia State for Abia gubernatorial election. Nothing is shown to have occurred in Abuja for the High Court of the Federal Capital Territory to have jurisdiction, except the so called “Information filtering from headquarters” of the 1st defendant, which has no value in this respect. We have been referred to the case of MAILANTARKI Vs. TONGO (SUPRA). Learned counsel for the 1st respondent sought to distinguish it. The principle enumerated in that case is as valid as any day and it is categorically stated that-
There is both subject matter jurisdiction and territorial jurisdiction. Section 257(1) of the 1999 Constitution provides for the subject matter jurisdiction of the High Court of the FCT It is settled law that a Court in one State does not have jurisdiction to hear and determine a matter which is within the exclusive jurisdiction of another State. See RIVERS STATE GOVERNMENT Vs. KONSULT (2005) 7 NWLR (Pt. 923) 145. 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
Following this, the primary election in issue, took place in Abia State and there is no justifiable reason for the 1st respondent to leave Abia and go to the FCT in search of “justice”. I agree that the trial Court had no territorial jurisdiction to entertain the suit. That being so, its proceedings are a nullity and are struck out.
It is also clear, that the 1st respondent as plaintiff had no locus to institute the action in the first place. His relief (b) shows that his action was founded on a list forwarded by the
“Dr. Emmanuel Ndukwe led Abia State Chapter of the Party.
Article 13.4 (xiv) of the appellant’s Constitution provides for primary election for nominations of its Presidential, Governorship and National and State Assemblies candidates, to be organized by the National Working Committee. It has not been shown that the primary election in issue, was organized by the National Working Committee. Paragraph 11 of the affidavit in support of the Originating Summons only stated that a Panel conducted direct primaries, a mode fixed by the National Working Committee. It is not a mode fixed by the National Working Committee that is the requirement, as the Committee can fix another mode e.g. indirect primary. The primaries are to be conducted by the National Working Committee and this has not been shown to have been done. Once that is the situation, the 1st respondent had no locus standi to institute the action and the trial Court had no jurisdiction to entertain it. See AYOGU EZE Vs. PDP (SUPRA) and YAR’ADUA Vs. YANDOMA (SUPRA) at Pages 182 ? 183. The 1st respondent was not an aspirant and so could not maintain the action. Issues 1 and 4 are resolved in favour of the appellant and against the 1st respondent.
ISSUE 3
Whether the trial Court had the powers to nominate a candidate for a political party?
This Issue is relevant only when the 1st respondent had the locus standi to institute the action and the trial Court had the requisite jurisdiction to entertain the Suit. In resolving issues 1 and 4, we have held that the 1st respondent was not an aspirant within the meaning of Section 87 (1) of the Electoral Act and so could not sue. The trial Court had no jurisdiction. Its proceedings have been set aside. The efficacy of its Orders have therefore been destroyed as that is the ambit of Issue 3. Issue 3 is therefore struck out.
In sum, this appeal has partially succeeded in a fundamental way as the trial Court had no jurisdiction whatsoever to entertain the Suit. The judgment and all its proceedings are incompetent and are struck out. The appeal is allowed.
Costs of N75,000 to the appellant against the 1st respondent only.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree
PETER OLABISI IGE, J.C.A.: I agree
Appearances:
Audu Awuga with him, C. Udeogu, Darlington Ozorumba, Natoyi Bandawa and Ugochukwu EzenwahFor Appellant(s)
N.A Nnakwe, SAN with him, S. Uzodinma and I.K Ujah for the 1st respondent.
Yemi Pitan for the 2nd respondentFor Respondent(s)
