CHIEF DR. OKEZIE IKPEAZU v. OBASI UBA EKEAGBARA & ORS
(2015)LCN/7963(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of July, 2015
CA/A/146/2015
RATIO
COURT: JURISDICTION; THE MEANING OF JURISDICTION
Jurisdiction is the authority which a court has to decide matters presented in a formal way for its decision. It is controlled or circumscribed by the statute creating the court or by a condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 and ALADEJOBI V. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (1376) 66. In matters commenced by origination summons, as in this case, the court is to examine the originating summons and the facts deposed to in the supporting affidavit as they relate to the issue of jurisdiction. If the claims of the plaintiff fall within the court’s jurisdiction, the court is to assume jurisdiction. If the opposite is the case, the court must decline jurisdiction. See AHMED V. AHMED (2013) 15 NWLR (1377) 274, 331-332 and PDP V. SYLVA (2012) 13 NWLR (1316) 85, 127. per. JOSEPH E. EKANEM, J.C.A.
COURT: JURISDICTION; HOW TO DETERMINE THE JURISDICTION OF THE FEDERAL HIGH COURT
In determining the jurisdiction of the Federal High Court either under Section 251(1) (r) of the Constitution or Section 31 (5) of the Electoral Act, it has been held that two factors must be considered, viz:
(i) A party or parties must be the Federal Government or its agency; and
(ii) The subject matter must be within its jurisdiction.
See PDP V. SYLVA (2012) 13 NWLR (1316) 85;
ADETAYO V. ADEMOLA (2010) 15 NWLR (1215) 169, 191 and
KAKIH V PDP (2014) 15 NWLR (1430) 374, 413 where Galadima, JSC, held as follows:
“By the community reading of Sections 31(5) and 87 (10) of the Electoral Act (as amended) no jurisdiction is conferred on the Federal High Court to determine the instant case. While the two sections of the Electoral Act vest jurisdiction in the Federal High Court or High Court of a State as regards pre-election complaint, the Act does envisage that the nature of the complaints may determine the jurisdiction of the court. I agree … that the law makers could not have vested the State High Court with the jurisdiction of the Federal High Court, if the Federal High Court were to assume jurisdiction for every complaint brought in respect of pre-election matters. The provision of Section 251 of the Constitution is clear. Any matter that does not fall within the purview of any of the items listed therein must find jurisdiction in any other court and certainly not in the Federal High Court… I recapitulate the grouse of the appellant herein. He is not satisfied with the manner in which the 1st respondent (PDP) concluded her primaries… He complained against the results of those primaries. The 2nd respondent (INEC) and 3rd respondent (WAEC) though agencies of the Federal Government were not alleged to have been involved at all in any wrong doing in the conduct of the said primaries. If the principal reliefs are not directed against the 1st and 4th respondent, who are not agencies of the Federal Government, why seeking redress against them in the Federal High Court, simply because of the presence of the 2nd and 3d respondents. Their mere presence can not confer jurisdiction in that court. I emphasis the fact that in so many decisions of this court that it is not in all cases in which the Federal Government of Nigeria or its agency is a party in the suit that the Federal High Court must will-nilly without consideration to the nature of the aggrieved party’s claim, then assume jurisdiction. We have said time without number, that the most important consideration is the plaintiff’s claim…”
Rhodes – Vivour, JSC, at page 433 stated.
“The choice of court depends on the nature of the claims/reliefs and the parties involved … the 2nd and 3rd respondents are agencies of the Federal Government but none of the principal reliefs are directed against them or the Federal Government. Both courts below came to the correct finding that a Federal High Court has no jurisdiction to hear the principal claims. The case ought to have been heard by a State High Court…” See also PDP V. SYLVA supra.
Counsel for the 1st and 2nd respondents cited and relied on UKACHUKWU V. PDP (2014) 17 NWLR (1435) 134, GBILEVE V. ADDINGI (2014) 16 NWLR (1433) 394, ABIEC V. KANU (2013) 13 NWLR (1370) 69 and JEV v. IYORTYOM (2014) 14 NWLR (1428) 525 to show a contrary position. per. JOSEPH E. EKANEM, J.C.A.
COURT: JURISDICTION; WHETHER THE COURT WITH JURISDICTION TO DETERMINE THE PRINCIPAL CLAIM THAT HAS JURISDICTION TO ADJUDICATE OVER THE CASE AND WHETHER THE COURT THAT HAS JURISDICTION OVER ANCILLARY CLAIMS DOES NOT HAVE JURISDICTION
The law is that it is the court with jurisdiction to determine the principal claim that has jurisdiction to adjudicate over the case and that the court that has jurisdiction over ancillary claims does not have jurisdiction especially if dealing with the ancillary claims will involve dealing extensively with the principal claim. See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) 517. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
CHIEF DR. OKEZIE IKPEAZU Appellant(s)
AND
1. OBASI UBA EKEAGBARA
2. CHUKWUEMEKA MBAH
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH E. EKANEM, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, holden at Abuja (The trial court) Coram: Ademola, J. in suit No. FHC/ABJ/CS/1086/2014 delivered on 25/3/2015 in which the trial court dismissed the motion on notice of the appellant (qua 3rd defendant) seeking a transfer of the 1st and 2nd respondents’ matter to the Abia State High Court for want of jurisdiction.
At the trial court, the 1st and 2nd respondents took out an originating summons (which seems to have been amended) against the 3rd respondent, 4th respondent and appellant (as 1st, 2nd and 3rd defendants respectively). In the amended originating summons at pages 1-4 of the record of appeal, the 1st and 2nd respondents set out the following questions for determination.
“1. Whether the 3rd Defendant’s failure, neglect and/or refusal to pay his income tax promptly as and when due for the years 2011, 2012 and 2013 in compliance with the provisions of Section 24 (f) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, does not disqualify him as a fit and proper person to contest the 2015 Abia State gubernatorial election the said defendant having falsely stated in his particulars of persons seeking election into office of governor (INEC FORM CF 001) and the accompanying documents therewith attached (tax clearance certificates and tax payment receipt) submitted to the 2nd defendant that he made the said tax payments as and when due.
2. Having regard to the clear unambiguous and sacrosanct provisions of Section 31(1) (2) (3) (5) (6) and (8) of the Electoral Act, Cap 15, Laws of the Federation of Nigeria, 2010 and INEC FORM C. F. 001 and the tax payment receipts and tax clearance certificates attached therewith submitted by the 1st and 3rd defendants to the 2nd defendant whether the 3rd defendant is not disqualified from contesting the Abia State governorship election for submitting to the 2nd defendant false information regarding 3rd defendant’s tax payment.”
In anticipation of favourable answers to the posers above, the 1st and 2nd respondents sought the following reliefs:
“1. A declaration that the 3rd defendant’s INEC FORM C.F.001 and the tax payment receipts and tax clearance certificate of the 3rd defendant attached therewith submitted to the 2nd defendant by 1st and 3rd defendants contain false information regarding 3rd defendant’s tax payment.
2. A declaration that having regard to the clear, unambiguous and sacrosanct provisions of Section 31(1) (2) (3) (5) (6) and (8) of the Electoral Act Cap.15 Laws of the Federation of Nigeria 2010 and INEC FORM CF 001 and the tax payment receipts and tax clearance certificate attached therewith submitted by the 1st and 3rd defendants to the 2nd defendant, the said 3rd defendant is disqualified from contesting the Abia State governorship election for submitting to the 2nd defendant false information regarding his tax payment.
3. An Order that the 3rd defendant having failed and/or refused to pay his income tax promptly as and when due for the years 2011, 2012 and 2013 and falsely stating in his INEC FORM C. F. 001 and the documents attached therewith that he paid the said tax as and when due is not a fit and proper person to contest the gubernatorial election of Abia State in the 2015 General Election.
4. An Order disqualifying the 3rd defendant from contesting the said 2015 Abia State gubernatorial election for submitting to the 2nd defendant in his INEC FORM C.F.001 and documents attached therewith false information concerning his tax payment contrary to clear, unambiguous and sacrosanct provisions of Section 31(5) of the Electoral Act as amended.
5. An order barring the 2nd defendant from accepting the 3rd defendant as a candidate to contest the Abia State 2015 gubernatorial election.
6. A declaration that the aspirant at the 1st defendant’s primary election of the 8th December, 2014 who polled the second highest number of votes cast at the said primary election is the rightful candidate of the 1st defendant for the Abia State 2015 Gubernatorial Election.
7. An order directing the 1st defendant to forward the name of the candidate at the 1st defendant’s Abia State gubernatorial primary election of the 8th December, 2014 who polled the second highest number of votes cast at the said primary election to the 2nd defendant as the rightful candidate of the 1st defendant for the Abia State 2015 gubernatorial election.
8. And for such further or other orders as the Honourable Court may deem fit/just to make in the circumstances of this case.”
The originating summons was supported by an 8 – paragraph affidavit deposed to by one Godwin Amaechi, Litigation secretary in the Law Firm of Messrs Excellex solicitors, counsel for the 1st and 2nd respondents. Several exhibits were attached to it. A written address was filed in support.
The appellant, as earlier stated, by way of motion on notice dated 17/3/15 and filed on 18/3/15 sought for a transfer of the case to the Abia State High Court on ground of lack of jurisdiction of the trial court. It is against the ruling of the trial court refusing the application that this appeal has been brought.
The appeal was initiated by a notice of appeal which was amended by order of court on 24/6/15. The amended notice of appeal bears two grounds of appeal. Out of the two grounds of appeal, the appellant in his brief of argument settled by Olajide Otaleye- Kumuyi, Esq; distilled one issue for the court’s determination of the appeal.
The Issue is
“Whether the Federal High Court under Section 31 (5) of the Electoral Act read together with Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 can exercise jurisdiction on the claims of the 1st and 2nd respondents in the originating summons”.
The 1st and 2nd respondents’ brief was settled by Max Ozoaka, Esq. It raises one issue for the determination of the appeal, viz;
“Whether the trial court was right in holding that the court had jurisdiction to entertain the claim of the plaintiffs/1st and 2nd respondents brought pursuant to Section 31 (5) of the Electoral Act 2010 (as amended) seeking to disqualify the appellant as claimed by the plaintiffs/1st and 2nd respondents and the subsequent refusal by the trial court to transfer the above suit to the High Court of Abia State of Nigeria.”
The 3rd and 4th respondents did not file any brief of argument.
The issues formulated by the appellant and 1st and 2nd respondents are in substance the same. I shall therefore adopt the issue formulated by appellant.
It must be mentioned that when the appeal came up for hearing on 24/6/2015, Chief (Mrs) V. O. Amomoto (SAN) for the appellant adopted and relied on the appellant’s brief. She urged the court to allow the appeal, set aside the decision of the trial court and strike out the suit or send it to the Chief Judge of Abia State.
O. J. Nnadi (SAN) for the 1st and 2nd respondents adopted their brief and urged the court to dismiss the appeal.
Valentine Offiah, Esq; for the 3rd respondent announced that the 3rd respondent did not file any brief.
Arguing his sole issue, appellant’s counsel referred to reliefs 1 and 2 in the originating summons and paragraphs 5 of the affidavit in support, and submitted that it is the facts in the statement of claim or affidavit in originating summons that determine the jurisdiction of the court. It was his view that the complaint and/or purpose of the action is disqualification of the 1st respondent due to his failure, neglect or refusal to pay his personal income tax to Abia state Government promptly as and when due for the years 2011, 2012 and 2013 in compliance with the provisions of Section 24(f) of the Constitution and Section 31 (1) (2) (3) (5) (6) and (8) of the Electoral Act 2010.
It was argued that not being candidates at the PDP Primary Election the right of the 1st and 2nd respondents to sue was derived from Section 31(5) of the Electoral Act and that the litigation is on a non- justiciable provision of the Constitution. It was further argued that Section 251 (1) of the Constitution does not accommodate matters relating to, connected with or arising from Personal Income Tax Laws of Abia State under which the tax clearance complained of as false arose. It was emphasised that an allegation of failure to pay personal income tax as at when due was an allegation of crime under the Abia State Criminal Law and that there was no Federal law which created the offence or provided for its punishment. Counsel referred to the ruling of the trial court and argued that the only question to be determined in the matter is whether the personal income tax clearance certificate issued by the Abia State Government to the appellant was false or genuine and not whether form CF 001 is false.
Counsel referred to and quoted extensively from the case of KAKIH v. PDP (2014) 15 NWLR (1430) 373 and noted that all the declarations and orders sought are directed at the appellant. He submitted further that the reliefs are not within Section 251(1) of the Constitution. It was further submitted that 87 (9) of the Electoral Act does not avail the 1st and 2nd respondents as they were not candidates at the primary election.
1st and 2nd respondents, in response and arguing their sole issue, submitted that it is the claim before the court that determines the jurisdiction of the court. It was further submitted that a perusal of the originating summons, the question for determination, the reliefs sought and the affidavit in support clearly showed that the trial court had jurisdiction to entertain the claim. He summarised the claim of the 1st and 2nd respondents as being that the documents submitted to INEC (4th respondent) by the appellant contained false information contrary to Section 31(5) of the Electoral Act, (as amended). Counsel referred to Section 153 (f) of the Constitution of Nigeria, 1999 (as amended) and part 1 paragraph 14 (1) of the third schedule thereto as well as Section 31(1) to (4) of the Electoral Act which he said vests the 4th respondent with the statutory duty of publishing the particulars of candidates and receiving the same and that any person is entitled to apply for the particulars. All these, he said, are in the performance of the administrative, statutory and constitutional duties of the 4th respondent. He added any person who believes such particulars to be false can approach the Federal High Court, State High Court or High Court of the Federal Capital Territory to seek a disqualification of the candidate. In support, he cited and relied on UKACHUKWU V. PDP (2014) 17 NWLR (1435) 134.
It was contended that the submission that the trial court has no jurisdiction to entertain a suit relating to personal income tax is not borne out by the claim before the court. It was counsel’s view that reliefs No. 1, 2, and 3 are declaratory reliefs against the 4th respondent’s performance of its administrative, statutory and constitutional functions thus bringing it under Section 251 (1) (r) of the Constitution. He cited and relied on GBILEVE V. ADDINGI (2014) 16 NWLR (1433) 394. He then distinguished the case of KAKIH V. PDP supra; cited by appellant’s counsel from the instant case. He also cited and relied on ABIEC V. KANU (2013) 13 NWLR (1370) 69 AND INEGBEDION V. SELO-OJEMEN (2013) 8 NWLR (1356) 211 to submit that any suit involving the Federal Government or its agency must be exclusively tried at the Federal High Court.
Continuing, counsel argued that by virtue of Section 251 (1) of the Constitution, Sections 87 (9) and 31 (5) of the Electoral Act are additional jurisdictions conferred on the Federal High Court by the National Assembly. He referred to the case of JEV. V. IYORTYOM (2014) 14 NWLR (1428) 575 in support.
Counsel thereafter submitted that the Federal High Court has jurisdiction throughout the Federation and therefore the doctrine of territorial jurisdiction could not be invoked regarding it. He finally urged the court to dismiss the appeal.
Jurisdiction is the authority which a court has to decide matters presented in a formal way for its decision. It is controlled or circumscribed by the statute creating the court or by a condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. See NDAEYO V. OGUNNAYA (1977) 1 SC 11 and ALADEJOBI V. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (1376) 66.
In matters commenced by origination summons, as in this case, the court is to examine the originating summons and the facts deposed to in the supporting affidavit as they relate to the issue of jurisdiction. If the claims of the plaintiff fall within the court’s jurisdiction, the court is to assume jurisdiction. If the opposite is the case, the court must decline jurisdiction. See AHMED V. AHMED (2013) 15 NWLR (1377) 274, 331-332 and PDP V. SYLVA (2012) 13 NWLR (1316) 85, 127.
It was argued by counsel for 1st and 2nd respondents that the claim of the 1st and 2nd respondents touches on the administrative, statutory and constitutional duties of the 4th respondent, an agency of the Federal Government which come within Section 251(1) (r) of the Constitution of Nigeria 1999 (as amended). The jurisdiction of the Federal High Court is in the main provided for in Section 251 (1) of the Constitution of Nigeria 1999 (as amended). Sub-section (r) thereof gives exclusive jurisdiction to the Federal High Court, in respect of “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
Section 31(5) of the Electoral Act 2010 (as amended) provides:
“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false”.
In determining the jurisdiction of the Federal High Court either under Section 251(1) (r) of the Constitution or Section 31 (5) of the Electoral Act, it has been held that two factors must be considered, viz:
(i) A party or parties must be the Federal Government or its agency; and
(ii) The subject matter must be within its jurisdiction.
See PDP V. SYLVA (2012) 13 NWLR (1316) 85;
ADETAYO V. ADEMOLA (2010) 15 NWLR (1215) 169, 191 and
KAKIH V PDP (2014) 15 NWLR (1430) 374, 413 where Galadima, JSC, held as follows:
“By the community reading of Sections 31(5) and 87 (10) of the Electoral Act (as amended) no jurisdiction is conferred on the Federal High Court to determine the instant case. While the two sections of the Electoral Act vest jurisdiction in the Federal High Court or High Court of a State as regards pre-election complaint, the Act does envisage that the nature of the complaints may determine the jurisdiction of the court. I agree … that the law makers could not have vested the State High Court with the jurisdiction of the Federal High Court, if the Federal High Court were to assume jurisdiction for every complaint brought in respect of pre-election matters. The provision of Section 251 of the Constitution is clear. Any matter that does not fall within the purview of any of the items listed therein must find jurisdiction in any other court and certainly not in the Federal High Court… I recapitulate the grouse of the appellant herein. He is not satisfied with the manner in which the 1st respondent (PDP) concluded her primaries… He complained against the results of those primaries. The 2nd respondent (INEC) and 3rd respondent (WAEC) though agencies of the Federal Government were not alleged to have been involved at all in any wrong doing in the conduct of the said primaries. If the principal reliefs are not directed against the 1st and 4th respondent, who are not agencies of the Federal Government, why seeking redress against them in the Federal High Court, simply because of the presence of the 2nd and 3d respondents. Their mere presence can not confer jurisdiction in that court. I emphasis the fact that in so many decisions of this court that it is not in all cases in which the Federal Government of Nigeria or its agency is a party in the suit that the Federal High Court must will-nilly without consideration to the nature of the aggrieved party’s claim, then assume jurisdiction. We have said time without number, that the most important consideration is the plaintiff’s claim…”
Rhodes – Vivour, JSC, at page 433 stated.
“The choice of court depends on the nature of the claims/reliefs and the parties involved … the 2nd and 3rd respondents are agencies of the Federal Government but none of the principal reliefs are directed against them or the Federal Government. Both courts below came to the correct finding that a Federal High Court has no jurisdiction to hear the principal claims. The case ought to have been heard by a State High Court…” See also PDP V. SYLVA supra.
Counsel for the 1st and 2nd respondents cited and relied on UKACHUKWU V. PDP (2014) 17 NWLR (1435) 134, GBILEVE V. ADDINGI (2014) 16 NWLR (1433) 394, ABIEC V. KANU (2013) 13 NWLR (1370) 69 and JEV v. IYORTYOM (2014) 14 NWLR (1428) 525 to show a contrary position. The case of UKACHUKWU v. PDP supra, was decided on 31/1/2014 and was not on the issue under consideration. The case of GBILEVE v. ADDINGI supra, was decided on 31/1/2014 while that of JEV v. IYORTYOM supra, was decided on 30/5/2014. On the other hand, the case of KAKIH v. PDP supra, was decided on 11/7/2014, making it the latest in the series of the decisions of the Supreme Court on the issue under consideration. On the authority of IMAM v. SHERIFF (2005) 4 NWLR (914) 80, 174 – 175, I shall follow KAKIH V. PDP supra. It needs be added that the case of ABIEC v. KANU supra, cited by 1st and 2nd respondents’ counsel dealt with updating and release of voters’ register thus touching on the administrative action of an agency of the Federal Government. (INEC)
The law is that it is the court with jurisdiction to determine the principal claim that has jurisdiction to adjudicate over the case and that the court that has jurisdiction over ancillary claims does not have jurisdiction especially if dealing with the ancillary claims will involve dealing extensively with the principal claim. See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) 517. The principal claims in this case are reliefs No. 1 and 2. At the pain of repetition, I shall set them out at this point:
“1. A declaration that the 3rd defendant’s INEC FORM C.F. 001 and tax payment receipts and tax clearance certificate of the 3rd defendant attached, therewith submitted to the 2nd defendant by the 1st and 3rd defendants contain false information regarding 3rd defendant’s tax payment.
2. A declaration that having regard to the clear, unambiguous and sacrosanct provisions of Section 31 (1) (2)(3) (5) (6) and (8) of the Electoral Act, Cap 15 Laws of the Federation of Nigeria, 2010 and INEC FORM C. F. 001 and the tax payment receipts and tax clearance certificate attached therewith submitted by the 1st and 3rd defendants to the 2nd defendant, the said 3rd defendant is disqualified from contesting the Abia State governorship election for submitting to the 2nd defendant false information regarding his tax payment.”
The principal claims are directed at the appellant who is not the Federal Government or its agency. There is no complaint in the affidavit about an administrative or executive action or decision of the INEC. The focus of the claims is not on the action or inaction of the 4th respondent as for example failure to publish particulars of candidate or refusal to issue a copy of the particulars of a candidate. It is not also the duty of the 4th respondent to disqualify a candidate or bar him from contesting. Relief No.5 which seeks an injunctive order against the INEC is an ancillary relief because it is dependent on the success of reliefs 1 and 2. The trial court therefore has no jurisdiction to adjudicate on the matter.
I therefore answer the only issue for determination in the negative. The appeal has merit and it is allowed. I hereby set aside the ruling of the trial court.
By virtue of the combined effect of Section 22 (2) of the Federal High Court Act and Section 15 of the Court of Appeal Act, I hereby order that the suit No.FHC/ABJ/CS/1086/2014 at the trial court be and is hereby transferred to the High Court of Justice, Abia State for assignment by the Honourable Chief Judge of Abia State for hearing and determination.
The parties shall bear their costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I am in total agreement with the judgment just delivered by my learned brother, JOSEPH E. EKANEM, JCA, which Judgment I had the privilege of reading in draft. There is nothing more to add as the views expressed by my learned brother represent exactly my own opinion on the matter.
I too allow the appeal and abide by the consequential orders made.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in draft the lead judgment of my learned brother, Ekanem, JCA.
I agree with the reasons therein advanced to arrive at the conclusion that the appeal is meritorious.
The questions for determination and the reliefs sought have been set out by my learned brother in the lead judgment.
The law is well settled that it is the claim of the plaintiff that determines the jurisdiction of the court. See Anya v. Iyayi (1993) 7 NWLR (Pt.305) 209, Anigboro v. Sea Trucks (Nig) Ltd (1995) 6 NWLR (Pt.339) 35 at 56, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; P & C.H.S. Co. Ltd. v. Migfo (Nig) Ltd. (2012) 18 NWLR (Pt.1333) 555.
In the determination of the subject-matter of litigation, it is not only the reliefs sought that must be examined. The pleadings or the depositions in the affidavit in support of the claim as the case may be must also be scrutinized in order to understand the peculiar facts of the case so as to decide the real issues in controversy in order to determine whether the claims are within the jurisdiction of the court. See PDP v. Sylvia (2012) 13 NWLR (Pt.1316) 85 at 138 where Rhodes-Vivour, JSC stated succinctly thus –
“Section 251 of the Constitution confers exclusive jurisdiction on the Federal High Court for the items listed in that section. All items not listed in that section are to be heard and determined by the State High Court. When the jurisdiction of the Federal High Court is in issue the following must co-exist.
(a) The parties or party must be the Federal Government or its agency
(b) Subject matter of the litigation.
Satisfying the above is not the end of the matter. The pleadings of the plaintiff must be carefully examined so as to understand the facts and circumstances of the case in order to determine if the claims are within the jurisdiction of the court. It is clearly not enough only to have an agency of the Federal Government as a party before Federal High Court has jurisdiction. Sub section (r) of section 251(1) of the Constitution states that
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The most relevant deposition concerning the claim of the 1st and 2nd respondents, as plaintiffs, is in paragraphs 5 (a) – (i) reproduced hereunder for ease of comprehension.
“a. That sometime in December, 2014 or January, 2015, the 1st defendant collated the various results of the party’s state gubernatorial primaries including that of the 3rd defendant and submitted/forwarded same to the 2nd defendant which document were made public.
b. That among the documents submitted to the 2nd defendant by the 1st defendant are the offensive tax papers of the 3rd defendant submitted during the purported nomination of the 3rd defendant as governorship candidate of the 1st defendant in the 2015 Abia State gubernatorial election.
c. That the plaintiffs have applied, paid for and obtained the certified true copy of the said INEC FORM C.F.001, Affidavit in support of Particulars of persons seeking to be elected into the office of Governor in 2015 submitted by the 3rd defendant to the 2nd defendant, now shown to me and attached herewith and marked Exhibit ‘A2’ is copy of the said INEC FORM C.F.001 with its attachments.
d. That the 3rd defendant in his affidavit of particulars of persons seeking election into the office of Governor (INEC particularly Income Tax Clearance Certificate No.095827 with Ref. No.SPA/HQ/2437) dated 4th July 2014, and Income Tax P.A.Y.E Receipts Nos.0012849, 0012846, 0012847, and 0012848 dated 31/12/2011, 31/12/2012, 31/12/2013 and 31/12/2013 respectively did falsely state that he paid his income tax for the years 2011, 2012 and 2013 a and when due.
e. That he knows a fact gleaning from the said income tax clearance certificate and income tax P.A.Y.E. receipts that the 3rd defendant did not pay his income tax promptly as and when due.
f. That he knows as a fact that the filing of false information by any candidate including the 3rd defendant leads to disqualification or such candidate.
g. That it is false for the defendant to say on oath in Exhibit INEC C.F.001 that he paid his income tax as and when due, hence this suit.
h. That he knows as a fact that the filing of false information by any candidate including the 3rd defendant and/or its consequence is not an internal affair of the 1st defendant hence this suit.
i. That it will serve the interest of justice to declare as a nullity the candidature of the 3rd defendant.”
(See pp. 7-8 of the Record)
A close perusal of the reliefs sought and the depositions in the affidavit in support of the Amended Originating Summons shows glaringly that the grouse of the 1st and 2nd respondents is not directed at any action of the 2nd respondent, which is an agency of the Federal Government. Rather the claims are targeted at the appellant and 3rd respondent who are not the Federal Government or its agency.
In determining the jurisdiction of the Federal High Court under section 251(r) of the 1999 constitution or section 315 of the Electoral Act, two factors must be conjunctively be considered, namely:
(1) Whether any of the parties is a Federal Government or its agency
(2) Whether the subject-matter is within the jurisdiction of the court.
See Adetayo v. Ademola (2010) 15 NWLR (Pt.1215) 169 at 191, N.U.R.T. Co. v. F.T.E.A.N. (2012) (Pt.1307) 170 at 197-199, Kakih v. PDP (2014) 15 NWLR (Pt.1430) 374 at 413.
In the case culminating into this appeal, the principal reliefs are neither directed or challenged administrative or executive acts of Federal Government or any of its agencies. The claims are not within the ambit of the provisions of Section 251(1) of the 1999 Constitution. The Federal High Court does not have the jurisdiction to determine the claim of the 1st and 2nd respondents, which principally deal with the determination of the validity, legality or correctness of the Abia State Government Tax Receipt.
For the more detailed reasons adumbrated in the lead judgment, I also allow the appeal. I abide by the orders of my learned brother in the lead judgment.
Appearances
Chief (Mrs) V. O. Awomoro (SAN) (with her, Oluwasanmi Aiyemowa, Esq; and Miss Tinuke Osoba)For Appellant
AND
O. J. Nnadi (SAN) (With him Max Ozoaka, Esq) for 1st and 2nd respondents.
Valentine Ofia, Esq. (With him, Messrs O. Chikwendu, C. Amanamba, Miss B. C. Okezie and R. J. Ogbodo, Esq.) for 3rd respondent.For Respondent
