DECLAN MBADIWE EMELUWA v. BARRISTER DONATUS ONUIGWE & ANOR
(2011)LCN/5040(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of May, 2011
CA/K/83/08
RATIO
THE DOCTRINE OF STARE DECISIS
It is an entrenched principle of law that lower Courts are bound by the decisions of the higher Courts notwithstanding how witty and brilliant the decision of the lower Court could have been. The lower Courts are bound by the doctrine of stare decisis, therefore, where a higher Court in the hierarchy of Courts had determined an issue or matter between parties before it and made a pronouncement on it, the lower Court is rather mandated by the Constitution to enforce that decision and not to make any contrary decision to it. In Okoye vs. Centre Point Merchant Bank Ltd. (2008) 15 NWLR Part 1110 p.335, the Supreme Court per Tobi; J.S.C., expressed at 363 that the Court of Appeal does not have the competence to overrule the decision of the Supreme Court. As had been held in other cases, a Court is only competent when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu vs. Nkemdilim (1962) 2 SC NLR 341. PER. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
PRACTICE AND PROCEDURE: WHETHER A COURT HAS POWER TO SET ASIDE OR VARY THE ORDER OF ANOTHER COURT OF CO-ORDINATE OR CONCURRENT JURISDICTION
Therefore, in the absence of any statutory authority, a Court has no power to set aside or vary the order of another Court of co-ordinate or concurrent jurisdiction, Considering the issues further, it is discernible from the decision of the Supreme Court in Odedo vs. INEC (2008) 17 NWLR Part 1117 p. 554 that under section 285(1)(a) of the 1999, Election Tribunals do not have the jurisdiction to deal with pre-election matters. It is solely within the purview of the regular Courts to determine pre-election matters and the fact that an election had been held notwithstanding. Oguntade, J.S.C. held at p. 613 that the fact that elections are subsequent to the commencement of the suit in a pre-election matter would not preclude the Court from exercising its jurisdiction derived under the Constitution. Therefore reliefs founded on pre-election matters are undoubtedly outside the jurisdiction of Election Tribunals. PER. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
THE DUTY OF SUBORDINATE COURTS TO COMPLY WITH AND ENFORCE DECISION OF COURT OF APPEAL
In ogboru vs. Ibori (2005) 15 NWLR Part 942 p.319 it was held that on duty of subordinate Courts to comply with and enforce decision of Court of Appeal – by section 287(2) of the 1999 Constitution, the Federal, State and Federal Capital Territory High Courts, and the Election Tribunals must comply with decisions of the Court of Appeal. By virtue of section 287(2), the decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal. In the instant case, the Election Tribunal was bound by the decision of the Court of Appeal in Exhibit “A”. On finality of decision of Court of Appeal in election petition appeal section 246 of the 1999 Constitution, provides that the decisions of the Court of Appeal, in an appeal arising from an election petition, is final and by section 257(2) of the Constitution, it is binding and enforceable by all Courts or Tribunals including the Court of Appeal. [Onuaguluchi vs. Ndu (2000) 11 NWLR Part 679 p.517; Adigun vs. A.-G., Oyo State (No. 2) (1987) 2 NWLR Part 265 p.275 referred to. PER. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
THE PRINCIPLE OF FORUM NON CONVENIENCE
On the other hand “forum non convenience” means “an unsuitable Court”. According to the learned authors of Blacks Law Dictionary supra p.680 the authors have further written that it is, “The doctrine that an appropriate forum – even though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place, – Also termed forum inconvenience”. PER. JOSEPH TINE TUR J.C.A.
ON THE ISSUE OF THE JURISDICTION OF A COURT
In law, the telling effect of want of jurisdiction of a court to entertain a matter is not a moot question” Such a decision, no matter how fairly and brilliantly arrived at, is marooned in the web of nullity, see Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236)775; Cotecna Int’l Ltd. v. Churchgate (Nig) Ltd. (2010)18 NWLR (Pt. 1225)346. The dismal consequence of nullity was graphically captured by Nnaemeka Agu, JSC, in the case of Okoye V. Nigeria Const. & Furniture co. Ltd. (1991)6 NWLR (pt. 199)501 at 538 thus:
“…When a judgment or order is a nullity it is as if it was never given or made. It can be set aside without much ado.” see, also, Bello v. INEC (2010)8 NWLR (pt.1196)342. More than that, such a null decision or proceeding smacks of a pyrrhic victory in the sense that it bestows no enforceable right on its beneficiary nor does it impose any obligation on the victim party; See Ajiboye V. Isholo (2006)13 NWLR (Pt.998) 628; Oyeneyin V. Akinkugbe (2010)4 NWLR (pt.1184) 255. PER. OBANDE OGBUINYA, J.C.A.
Before Their Lordships
THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYAJustice of The Court of Appeal of Nigeria
Between
DECLAN MBADIWE EMELUWAAppellant(s)
AND
1. BARRISTER DONATUS ONUIGWE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): On the 29th February, 2008, the 1st Respondent in this appeal instituted an action before the Federal High Court, sitting at Katsina by way of Originating Summons in suit No. FHC/KAT/CS/4/2008 claiming against the Appellant and the 2nd Respondent as follows:
“1. A DECLARATION of this Honourable Court that by the combined effect of section 106 of the Constitution of the Federal Republic of Nigeria 1999 and section 32(2) of the Electoral Act 2006, the 2nd Defendant is not qualified to contest for and/or participate in the bye-election soon to be conducted by the 1st Defendant into the House of Assembly of Imo State for the Oru West State Constituency, having failed to satisfy the mandatory requirements of the said sections.
2. A DECLARATION of this Honourable Court that by virtue of the decision of the Court of Appeal in CA/PH/EPT/453/2007 Onuigwe vs. Emelumba & Ors. the Plaintiff is entitled to be declared the winner of the bye-election ordered to be held only between the Plaintiff and the 2nd Defendant, the 2nd Defendant not being statutorily qualified.
3. A DECLARATION that by virtue of powers conferred on the 1st Defendant by section 117(1) of the Constitution of the Federal Republic of Nigeria 1999 and section 42(1) and (2) of the Electoral Act 2006, the Plaintiff is entitled to receive a Certificate of Return from the 1st Defendant.
4. AN ORDER of this Honourable Court directing the 1st defendant to issue a Declaration of Result Form and a Certificate of Return permanently to the Plaintiff to represent the Oru West State Constituency in the Imo State House of Assembly”.
In the said originating Summons three questions were posed by him for the determination of the lower Court thus:
” 1 . Whether by the combined effect of section 106 of the Constitution of the Federal Republic of Nigeria 1999 and section 32(2) of the Electoral Act 2006, the 2nd Defendant is qualified to contest for and/or participate in the bye-election soon to be conducted by the 1st Defendant into the House of Assembly of Imo State for the Oru West State Constituency, having failed to satisfy the mandatory requirements of the said sections.
2. Whether by virtue of the decision of the Court of Appeal in CA/PH/EPT/453/2007 Onuigwe vs. Emelumba & Ors. the Plaintiff is not entitled to be declared the winner of the bye-election into the Imo State House of Assembly to represent the Oru West State Constituency ordered to be held only between the Plaintiff and the 2nd Defendant, the 2nd Defendant not being statutorily qualified.
3. Whether by virtue of the powers conferred on the 1st Defendant by section 117(1) of the Constitution of the Federal Republic of Nigeria 1999 and section 42(1) and (2) of the Electoral Act 2006, the Plaintiff is not entitled to receive a Certificate of Return from the 1st Defendant”.
He predicated the reliefs sought upon the following grounds:
” 1 . The 1st Defendant is the body set up by the Constitution of the Federal Republic of Nigeria I999 and empowered by the said constitution and by the Electoral Act to conduct elections into a House of Assembly of a State of the Federation.
2. The Plaintiff is qualified to contest and was nominated to contest, and contested election for the seat to represent the Oru West State Constituency in the House of Assembly of Imo State held on 14th April 2007.
4. The 2nd Defendant was wrongly allowed to contest the said election not being qualified to contest, and was also wrongly returned.
5. That the Plaintiff presented a petition against his return before the Governorship and Legislative Houses Election Petitions Tribunal, and then lodged an appeal to the Court of Appeal, whereupon the Court of Appeal nullified the election and ordered for a bye-election to be conducted by the 1st Defendant between the Plaintiff and the 2nd Defendant.
6. The court of Appeal held that the issue of affidavit of personal particulars raised by the Plaintiff is a pre-election issue.
7 . The Plaintiff is the only one person whose name is validly nominated in respect of the forthcoming bye-election, and ought to be declared elected.
8. There has been a vacuum in representation of the said constituency.
9. Courts of law have a duty to interpret and enforce statutory Provisions”.
The affidavit evidence of ten paragraphs was deposed to by the 1st Respondent in support of the Originating Summons.
Following the Originating Summons, the 1st Respondent filed a Motion Exparte on 29/2/08 for an interim order of the Court directing the 1st Defendant to issue forwith to the Plaintiff the certificate of Return to represent oru west State constituency in the Imo State House of Assembly pending the hearing and determination of the Motion on Notice filed in the suit.
On the same 29/2/08, the said Originating Summons, Motion Exparte for an interim order and Motion Ex-parte for substituted service were filed at the lower Court, the said motions Ex-parte were moved by the 1st Respondent’s Counsel, as a result of which the Court made the following orders:
“Upon hearing learned Counsel, I hold as follows:
1 . In view of the novelty, urgency and obvious national importance of the entire proceedings in this suit, an accelerated hearing is hereby ordered to ensure that the subject is disposed of speedily in the interest of justice and in line with the principle of Rule of Law which is the stabilizing fulcrum upon which our current Presidential democratic experiment is hinged.
2. These proceedings as contained in this suit is a “pre-election matter” which automatically confers jurisdiction on the Federal High Court of Nigeria (and indeed any other Court of superior record of competent jurisdiction). I therefore hereby assume jurisdiction to entertain these proceedings pursuant to paragraph 2 of the Affidavit of urgency.
3. There is an urgent need to preserve the Res of these proceedings namely the representation of the Oru West State Constituency in the Imo State House of Assembly. Accordingly, the Resident Electoral Commissioner (REC) who is the agent of the 1st Defendant in Imo State of Nigeria is hereby ordered to put on hold, any arrangements for the Bye-Elections in the subject Constituency pending the hearing and determination of the Motion on Notice for Interlocutory Injunction.
4. On the contrary, also pending the hearing and determination of the said Motion on Notice, and in order to avoid a vacuum in the Res of these proceedings, the said Resident Electoral Commissioner Imo State is ordered to issue forthwith a Certificate of Return to the Plaintiff/Applicant, whilst, the Clerk of Imo State House of Assembly is to swear him in immediately thereafter.
5. Return date for the hearing and determination of both the Motion on Notice as well as the Originating Summons is the 11th of March, 2007.
Learned Counsel, also, moved a Motion Exparte for substituted service. He is praying for an Order granting leave for the service of all the processes in this suit on the 2nd Defendant by substituted Means Order as prayed:
1. Leave is hereby granted for the service of the Originating Summons and all other processes on this suit on the 2nd Defendant by Substituted means.
2. Accordingly, this Order granting leave, the Order of Interim Injunction, the Originating Summons, the Motion on Notice together with all other processes in these proceedings should be served on the 2nd Defendant by pasting same at his usual Place of abode in Ubulu Community in the Oru West Local Government Area of Imo State.
3. Return date for the hearing and determination of the Originating Summons and Motion on Notice is the 11th of March, 2008.
In respect of the aforestated orders made on 29/2/2008, the Appellant filed a Notice of Appeal on 11/3/08 wherein he complained against the whole decision of the lower Court based on three grounds of appeal, and then prayed this Court to set aside all the orders made by the lower court and strike out the entire suit.
Nevertheless, the lower Court proceeded with the hearing and determination of the substantive suit and at the end of which, it held as follows:
“In the final result, I find that even though the 2nd Defendant appears to have been disqualified from contesting both the General Election of April 14th, 2007 as well as the forthcoming Bye-Elections ordered by the Court of Appeal (in respect of which INEC is yet to fix a date), the nullification of the subject election by the Court of Appeal was not based on the 2nd Defendant’s qualification, non-qualification or unqualification, but was based on substantial non compliance by INEC with the Electoral Acts and Guidelines. I hold that he was disqualified, so that from the two documents canvassed by the parties, namely:- a. Expression of interest for State Assembly nomination Form No. 0012334 dated 10th of November, 2006: Exhibit “C” annexed to the Affidavit in Support of the Originating Summons and
b. Independent National Electoral Commission (INEC) 2007 Elections Affidavit in Support of Personal Particulars of Person Seeking Election of Imo State House of Assembly Oru West Constituency, Imo: Form No. CF 001 dated 14th December 2006, Exhibit “INEC 1st, the 2nd Defendant, Declan Mbadiwe Emelumba, was not qualified to contest the April 14th, 2007 elections, and is not qualified to contest any other subsequent elections, on the basis of their non-compliance with the mandatory requirements of the Electoral Act, 2006. Nevertheless, the Court of Appeal ordered that Bye-Elections be conducted by the 1st Defendant (INEC) in Oru West State Constituency between the Plaintiff and the 2nd Defendant, having nullified the April 14th, 2007 election on the ground of substantial non-compliance with the Electoral Act and Guidelines.
The issue of the qualification or disqualification of the 2nd Defendant is therefore a pre-election matter, consequent upon which the Court of Appeal did not entertain same but rather directed that a Bye-Election should be conducted exclusively between the Plaintiff and the 2nd Defendant, in spite of the latter’s non-qualification to so contest/participate on the basis of the above mentioned documents.
However, pursuant to the final Order of the Court of Appeal for the said Bye-Election, the 1st Defendant is at liberty to proceed with its arrangements for the said exercise which this Court put on hold when this suit has instituted.
Until the successful conduct of the said Bye-Election within the three month period allowed by the Electoral Act, 2006, the 1st Defendant is to preserve the Res as well as maintain the status quo by ensuring that there is no legal lacuna or vacuum in the representation so that the Constituents do not feel disenfianchised since May, 2007 when the previous House was dissolved by operations of law, which also constitutes the effective date of the said nullification by the Court of Appeal.
This is the final judgment of the Court in these proceedings and I make no order as to costs in the circumstances”.
The said pronouncement was found so nauseating and obnoxious that the Appellant did not hesitate to lodge his second appeal, on 14/4/08, this time, against the substantive judgment delivered on 2/4/08 wherein his only relief sought was for an order nullifying the judgment of the lower Court and all the orders made thereunder. It was this latter appeal filed in respect of the final judgment that was argued before us.
In the Appellant’s Brief of Argument, three issues were propositioned for the determination of this Court. They are as follows:
” 1 . Whether the learned trial Judge had the jurisdiction to entertain the 1st Respondent’s suit after the judgment of the Court of Appeal on the subject matter.
2. Whether the learned trial Judge had the jurisdiction to have entertained the 1st Respondent’s subject matter.
3. Whether the lower Court was right when it held that the Appellant was not qualified to contest the April 74, 2007 election and is not qualified to contest any subsequent election”.
Regarding issue No. 1, learned Counsel argued that the Originating Summons filed by the 1st Respondent after the dispute between the parties which arose from the State House of Assembly election into Oru West Constituency held on 14/4/01 as a result of the declaration of the Appellant as the winner of the said election, by the 2nd Respondent, had first been determined by the Governorship and Legislative Houses Election Tribunal, Imo State and finally by the Court of Appeal, Port-Harcourt Division, constituted a gross abuse of power. He submitted that the decision of the Court of Appeal in the matter was final and in that respect, the 1st Respondent had no right whatsoever to re-litigate or re-initiate the suit, and too, the trial Court had no jurisdiction in any form to re-write or vary the judgment of the Court of Appeal on the issue of qualification or non-qualification of the Appellant. Counsel called to aid the decisions in Umeh vs. Iwu (2008) 8 NWLR Part 1089 p.225, Uba vs. Etiaba (2008) 6 NWLR Part 1082 p. 154 at 182 paragraphs F – G, ratio 2, and 222 paragraph F – G, Okonkwo vs. FRN (2006) 14 NWLR Part 1000 p. 566 at 581 para C – F, Ibori vs. Ogboru (2005) 6 NWLR Part 920 p. 102 ratio 5, Ejura Eedris (2006) 4 NWLR Part 971 p. 538 at 562 and Enemue vs. Duru (2006) ALL FWLR Part 304 p. 308 at 534,545 – 546, and section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria.
On the wrong notion by the lower court that neither the Governorship and Legislative Houses Election Tribunal nor the Court of Appeal (Port-Harcourt Division) had determined the issue of the Appellant’s qualification which was primarily a pre-election matter, learned Counsel cited the decision of the Court of Appeal between the parties in Onuigwe vs. Emeluba (2008) 9 NWLR Part 1092 p.371 at 393 – 395, 411 – 412, also, the unreported decision in Appeal No. CA/PH/9M/2009 between Declan Mbadiwe vs. NEC &. 3 Ors delivered on 23/4/09, where the Court of Appeal categorically stated that the assertion of the lower Court that it did not determine the qualification or otherwise of the Appellant on the ground that it was a pre-election matter was not correct. Counsel submitted that where a Court of competent jurisdiction had determined a matter conclusively and on the merit, the parties are estopped from litigating the issue over again. Counsel mentioned the case of Ebhodaghe vs. Okoye (2004) 18 NWLR Part 905 p.476 and asserted that the lower Court should have investigated the purport of the latter action by the 1st Respondent to enable it determine if it had jurisdiction in the first place to deal with the matter. He further drew attention to the case of Nigeria Intercontinental Merchant Bank Ltd. vs. UBN (2004) 12 NWLR Part 888 p. 599- where the Supreme Court held that the Federal High Court cannot make an order that is in conflict with an order of the State High Court, let alone, the order of the Court of Appeal. He, therefore, submitted that the lower Court had no iota of jurisdiction when it ordered the Electoral Commissioner, Imo State to issue the 1st Respondent with a Certificate of Return after the Court of Appeal had, in its final judgment, declined the said 1st Respondent’s prayer before it that, he be declared winner of the election. Counsel argued that. the order of the lower Court directing the Clerk of Imo State House of Assembly to swear in the 1st Respondent was baseless having been made without jurisdiction. Lastly, he submitted that the proceedings before the Federal High Court sitting at Katsina were a nullity, and, then urged this Court to so hold, and resolve issue No. 1 in favour of the Appellant.
In respect of issue No. 2, learned Counsel invoked the provisions of sections 140 of the Electoral Act, 2006, 246(3) and 285(2) of the 1999 Constitution of the Federal Republic of Nigeria and asserted that exclusive jurisdiction to determine all issues arising from an election was conferred on the Election Tribunal, and, that the decision of the Court of Appeal is final on election matters except the Presidential Election. He further relied on Ukachukwu vs. Uba (2006) ALL FWLR Part 300 p. 1736, Ogboru vs. Ibori (2005) 13 NWLR Part 942 p.319 at 438 – 439, Orubu vs. NEC (1988) 5 NWLR Part 94 p. 323 at 437, REC vs. Nwaocha (1991) 2 NWLR Part 176 p.249 – 250, Nabamma vs. Ofodile (2004) 13 NWLR Part 891 p. 599. He further cited Obasanya vs. Obafemi (2000) FWLR Part 15 p. 2585 at 2602 2604 and stressed that Originating Summons is not appropriate for the resolution of election dispute, and then urged this Court to resolve issue No. 2 in favour of the Appellant.
In making his submissions on issue No. 3, learned Counsel drew the attention of this Court to the provisions of section 32 sub-sections (1), (2) and (4) of the Electoral Act, 2006 and emphasised that they do not apply to internal forms of political parties in sourcing for candidates. He said that they apply only to forms submitted to INEC by political parties. He argued that section 32(2) would be effective where a candidate for an election who is not qualified or disqualified to contest the election, made false representations in his deposition, to mislead INEC into granting him clearance for such election. If no deposition was made at all, then section 32 (2) of the Act cannot be breached. Counsel contended that there is no section of the Constitution of Peoples Democratic Party or its regulations which stipulates that failure to depose to the facts contained in the PDP Expression of Interest Form is a disqualifying factor. He also referred to Exhibit “INEC I” attached to the Counter-affidavit of the 2nd Respondent and said there is evidence to show that the Appellant deposed to his Personal Particulars Form before the High Court on 14/12/06. He said that in the case of a candidate for the House of Assembly, section 32(4) cannot be invoked unless the information given by him for an election is shown to be false.
Counsel stressed that neither was there any allegation nor evidence establishing that the Appellant did not meet any of the requirements set out in sections 106 and 101 of the Constitution of Federal Republic of Nigeria. Counsel referred to the decision in Onuigwe vs. Emeluba (2003) 9 NWLR Part 1092 p.371 at 393 – 395 where the Court of Appeal declared the Appellant qualified and, held, too, that section 32 was intended by the lawmakers to give prompt avenue to persons seeking to raise pre-election issues to timeously do so before the High Court of a State or Federal High Court. He submitted that a pre-election issue must be raised before the election and not after. Learned Counsel further argued that the learned trial Judge was wrong in law when he held that the Appellant was not only not qualified to contest the April 14th, 2001 , House of Assembly election but is also not qualified to contest any other subsequent elections. He argued that this pronouncement amounts to a life ban on the Appellant from contesting not only the questioned election but, indeed any future election. He cited the cases of Ujam vs. IMT (2007) 2 NWLR Part 1091 p. 470 at 493 paras C – F, PPA vs. Saraki (2007) 17 NWLR Part 1064 p. 453 at 508 – 509, Unilorin vs. Adeniran (2007) 6 NWLR Part 1031 p. 498 at 530 paragraph B, and, 538 – 539 paragraphs F – C, and AT Ltd. vs. VADH Ltd. (2007) 15 NWLR Part 1056 p. 118 at 175 -176 and asserted that a Court should not read into a Statute what is not contained in it, and that when the intention of the lawmaker is clear, resort should not be had to a liberal interpretation to incorporate words not expressly put in the Statute. He pointed out that in the interpretation of statutes, effect should be given to ordinary plain meaning of the words used therein. He stressed that there is no provision in the Electoral Act for the disqualification of a candidate for an election on grounds of improper filling of a Political Party’s Expression of Interest Form. He explained that candidates are not screened on the basis of parties’ Expression of Interest Form, but on basis of information deposed to by the candidate and submitted to the 2nd Respondent by the Political Party for purpose of clearance, and that there is no provision in the Electoral Act disqualifying any person for life from contesting any political office.
He then urged this Court to allow the appeal and set aside as invalid, null and void, the orders of the lower Court in the case. The Respondents did not file any Respondents’ Brief of Argument nor did they bother in any form to regularize their position in the appeal. They were served with all the processes and hearing notices up to the time of hearing this appeal, yet no step whatsoever was taken by them.
I will now consider together, the three issues propounded by the Appellant in his Brief of Argument since they seem interwoven.
It is necessary to appreciate at the outset that the hierarchy of the superior Courts of record in Nigeria is clearly set out in the Constitution of the Federal Republic of Nigeria, 1999. In the hierarchy, Court of Appeal takes precedence over the Federal High Court and this is eloquently manifested in sections 240,241,242 which inter-alia, deal with appeals from the Federal High Court to the Court of Appeal.
Then, when it comes to appeals arising from election petitions, section 246(3) of the 199 Constitution says that the decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final. The wordings of the Constitution are clear as to what they purport and did not shroud the importance or position of the Court of Appeal vis-a-vis the Federal High Court. To further accentuate the order of precedence of Courts in Nigeria as it relates to the Court of Appeal and the Federal High Court, section 287 subsections (2) and (3) provide thus:
“281(2): The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal.
(3): The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.
It is instructive to note that the aforestated sub-section used the mandatory word “shall” to describe the gravity of the obligations on all the institutions, persons and even Courts with subordinate jurisdiction to enforce the decisions of the Court of Appeal. The same thing applies to the decisions of the Federal High Court and High Court of State and all other Courts established by the Constitution to be enforced by all authorities, etc. It is also imperative that even the Courts that made the decisions shall equally enforce or obey them. The word “decision” is defined by section 318 of the 1999 Constitution to mean, in relation to a Court, “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”
The facts culminating to this appeal were clearly set out in the record of this appeal. In the first instance, the Governorship and Legislative Houses Election Tribunal sitting at Owerri had adjudicated on the election petition filed by the 1st Respondent challenging the declaration of the Appellant as the winner of the election held on the 14th April, 2007 into the Imo State House of Assembly for Oru West Constituency on the platform of All Progressives Grand Alliance (APGA) on the ground that:
1. The Appellant was disqualified from contesting the election.
2. The 1st Respondent was not duly returned by a majority of lawful votes cast at the election.
3. The purported election was invalid by reason of corrupt practices and for non-compliance with the provisions of the Electoral Act, 2006.
The judgment of the Election Tribunal was unfavourable to the 1st Respondent, as a result of which he lodged an appeal against the said decision which was heard and determined by the Port Harcourt Division of this Court.
It is clear from the record that this Court had already pronounced on the issue of non-qualification of the Appellant, and at p. 17 of the record, it summed up thus:
“On the Appellant’s submission on section 32(2) of the Electoral Act 2006, I am bound to reject such submission and uphold the findings of the Tribunal to the effect that section 32(f) thereof was inserted and intended by the lawmakers to give a prompt avenue to a person seeking to raise pre-election issues timeously and conveniently do so before the High Court of a State or Federal High Court. If it determines that any of the information contained in the affidavit filed by the candidate is false, the Court shall issue an order disqualifying him from contesting the election. Contrary to the Appellant’s contention that the learned Judges of the Tribunal did not consider the submissions in Exhibit 2 and rather relied on Exhibit 8 (the letter from Imo State House of Assembly absolving the 1st Respondent of all charges and allegations) the Tribunal, indeed considered and evaluated same at page 431 of the record of appeal and finally concluded by holding that Exhibit 2 is not of any probative value, relevance or weight, and therefore ground 1 of the petition is not proved as required by law. The Appellant has not shown that the said findings were perverse in any manner whatsoever. The Tribunal was entitled to prefer Exhibit 8 to Exhibit 2, and no miscarriage of justice has been occasioned. In the circumstance, I must resolve this issue in favour of the 1st Respondent”.
It is evident in the judgment of this Court, Port Harcourt Division, at p. 85 of the record, that the question whether the Appellant was qualified to contest for and/or participate in the bye-election had been thrashed by the Court of Appeal. It opined that the Tribunal considered and evaluated the same and concluded that Exhibit 2 is not of any probative value, relevance or weight and that ground I of the petition was not proved. It should be recollected that ground I of the petition is that the Appellant was disqualified from contesting the election. So, if there was an evaluation and consideration by the Tribunal and its finding that the issue of the Appellant being disqualified from contesting the election was not proved, which was also confirmed by this Court, the question now is, on what premise, was the Originating Summons and the judgment of the lower Court thereon anchored. The lower Court held as follows:
“In the final result, I find that even though the 2nd Defendant appears to have been disqualified from contesting both the General Election of April 14, 2007 as well as the forthcoming Bye-Elections ordered by the Court of Appeal (in respect of which INEC is yet to fix a date), the nullification of the subject election by the Court of Appeal was not based on the 2nd Defendant’s qualification, non-qualification or unqualification, but was based on substantial non compliance by INEC with the Electoral Act and Guidelines. I hold that he was disqualified, so that from the two documents canvassed by the parties, namely:-
a. Expression of interest for State Assembly nomination Form No. 0012334 dated 10th of November, 2006: Exhibit ‘C’ annexed to the Affidavit in Support of the Originating Summons; and
b. Independent National Electoral Commission (INEC) 2007 Elections Affidavit in Support of Personal Particulars of Person Seeking Election of Imo State House of Assembly Oru West Constituency, Imo: Form No. CF 001 dated 14th December, 2006, Exhibit ‘INEC I’, the 2nd Defendant, Declan Mbadiwe Emelurnba, was not qualified to contest the April 14, 2007 election, and is not qualified to contest any other subsequent elections, on the basis of their non-compliance with the mandatory requirements of the Electoral Act, 2006. Nevertheless, the Court of Appeal ordered that Bye-Elections be conducted by the 1st Defendant (INEC) in Oru West State Constituency between the Plaintiff and the 2nd Defendant, having nullified the April 14, 2007 election on the ground of substantial non-compliance with the Electoral Act and Guidelines”.
By the judgment of the lower Court, it decided denovo the issue of disqualification of the Appellant which had already been determined by the Election Tribunal and confirmed by this Court. The provisions of section 287 of the Constitution are clear as to the obligations of all the authorities and persons and Courts with subordinate jurisdiction to enforce the decisions of the Court of Appeal.
It is an entrenched principle of law that lower Courts are bound by the decisions of the higher Courts notwithstanding how witty and brilliant the decision of the lower Court could have been. The lower Courts are bound by the doctrine of stare decisis, therefore, where a higher Court in the hierarchy of Courts had determined an issue or matter between parties before it and made a pronouncement on it, the lower Court is rather mandated by the Constitution to enforce that decision and not to make any contrary decision to it. In Okoye vs. Centre Point Merchant Bank Ltd. (2008) 15 NWLR Part 1110 p.335, the Supreme Court per Tobi; J.S.C., expressed at 363 that the Court of Appeal does not have the competence to overrule the decision of the Supreme Court.
As had been held in other cases, a Court is only competent when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu vs. Nkemdilim (1962) 2 SC NLR 341.
In the case of Nigeria Intercontinental Merchant Bank Ltd vs. Union Bank of Nig. Ltd. (supra) cited by the Appellant, the Supreme Court, expressed thus:
“From the facts of this case the order made by the High Court of Lagos State was still pending when the Union Bank went to the Federal High Court and obtained from Okeke, J. an order of interlocutory injunction in respect of the same frozen fish.
The proper step which the Union Bank had taken in seeking for stay of the order of the Lagos High Court, would have determined the dispute in a proper way. Before the determination of the application for stay of the order of the Lagos High Court the Bank again went to the Court of Appeal and applied for a similar order. All this amounts to multiplicity of actions between the same parties over the same subject matter in different Courts. See Harriman vs. Harriman (1989) 5 NWLR (Pt. 119) 6.
Filing an application in a Court of coordinate jurisdiction seeking a relief which the other Court has given in respect of the same subject matter is also an abuse of the process of Court. If two actions are commenced, the second asking for relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of the processes of Court”.
It was further held in that case that:
“Where a Federal Court is prayed to make an order that is diametrically or in conflict with a subsisting order of a State High Court in the con of the same subject matter and where equally identical or seeming identical prayers are sought, it should refuse to entertain it and may advice that the parties transfer the matter filed or instituted in the State High Court due to the subject matter. To make any order that would contradict that made by the State High Court is to unwittingly appear to be sitting on appeal over the decision of the State High Court”
Also, in Nworgu vs. Njoku (2001) 14 NWLR Part 734 p. 539, Morgrey vs. Ikpotor (200L) 12 NWLR Part 727 p.336 it was held that it is not competent for a Court to overrule the decision of another Court of co-ordinate jurisdiction. Therefore, in the absence of any statutory authority, a Court has no power to set aside or vary the order of another Court of co-ordinate or concurrent jurisdiction, Considering the issues further, it is discernible from the decision of the Supreme Court in Odedo vs. INEC (2008) 17 NWLR Part 1117 p. 554 that under section 285(1)(a) of the 1999, Election Tribunals do not have the jurisdiction to deal with pre-election matters. It is solely within the purview of the regular Courts to determine pre-election matters and the fact that an election had been held notwithstanding. Oguntade, J.S.C. held at p. 613 that the fact that elections are subsequent to the commencement of the suit in a pre-election matter would not preclude the Court from exercising its jurisdiction derived under the Constitution. Therefore reliefs founded on pre-election matters are undoubtedly outside the jurisdiction of Election Tribunals.
In the instant appeal, the first question posited in the Originating Summons of the Appellant which the trial Federal High Court deliberated upon relates to the qualification or non-qualification of the 1st Respondent.
Section 140(1) Electoral Act, provides as follows:
“140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or Court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party.
Then section 145(1)(a) states:
“145(1) An election may be questioned on any of the following grounds;
(a) that the person whose election is questioned was , at the time of the election, not qualified to contest the election”.
It seems clear that the most appropriate time for ascertainment of the qualification of the person whose election is being questioned, is, ‘the time of the election’. So, if the person was not qualified at the time of the election, then the person questioning his election, would proceed to the election tribunal to file his petition. Since the issue of qualification of the Appellant was one of the questions raised by the 1st Respondent, it was covered by section 145 which fell within the jurisdiction of Election Tribunal, and, in particular, the Governorship and Legislative Houses Election Tribunal, Imo State.
It should be noted that it is only when a candidate is qualified to participate in the election, and, he so participated and got elected, that a person who feels otherwise may file a petition basing same on one of the grounds saying that the person who won was not validly elected.
To further elucidate the notion that the jurisdiction to determine this question resides with the Election Tribunal, the 1999 Constitution, at section 246(3) states that the decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.
It is most unfortunate that the trial Federal High Court in its seeming predetermined state pretended that it was dealing with a pre-election issue of qualification of the Appellant when in actual fact, there were copious facts before it revealing that the issue of qualification of the Appellant had already been adjudged by the Governorship and Legislative Houses Election Tribunal, Imo State and which said decision was confirmed by the Port Harcourt Division of this Court.
There is no doubt that the learned trial Judge seemed to be wallowing in his judicial rascality and reckless disregard for known principles of law. What gave the learned trial Judge the impetus to think he had the powers to re-determine or reverse the decision of the Governorship and Legislative Houses Election Tribunal, Imo State and the Court of Appeal (Port Harcourt Division) in Katsina State in respect of an election into the Imo State House of Assembly on issue of qualification of the Appellant to contest in any election, still could not be fathomed. The learned trial Judge’s impression that the Court of Appeal said that issues bordering on qualification, non-qualification of candidates are pre-election matter is unimaginable.
In ogboru vs. Ibori (2005) 15 NWLR Part 942 p.319 it was held that on duty of subordinate Courts to comply with and enforce decision of Court of Appeal – by section 287(2) of the 1999 Constitution, the Federal, State and Federal Capital Territory High Courts, and the Election Tribunals must comply with decisions of the Court of Appeal. By virtue of section 287(2), the decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal. In the instant case, the Election Tribunal was bound by the decision of the Court of Appeal in Exhibit “A”. On finality of decision of Court of Appeal in election petition appeal section 246 of the 1999 Constitution, provides that the decisions of the Court of Appeal, in an appeal arising from an election petition, is final and by section 257(2) of the Constitution, it is binding and enforceable by all Courts or Tribunals including the Court of Appeal. [Onuaguluchi vs. Ndu (2000) 11 NWLR Part 679 p.517; Adigun vs. A.-G., Oyo State (No. 2) (1987) 2 NWLR Part 265 p.275 referred to.]
This Court had delivered its decision on the issue of qualification of the Appellant as shown in Exhibit A attached to the affidavit in support of the Originating Summons filed by the 1st Respondent in Exhibit B, and, having done that, it would amount to judicial summersault or suicide if this Court should indirectly review the said decision in this appeal, and it would also amount to sitting on an appeal over its judgment contained in Exhibit B. See Order 18 Rule 4 of the Court of Appeal Rules, 2007.
As I earlier stated, neither the trial Federal High Court nor this Court can grant the 1st Respondent his first relief in his Originating Summons nor does this Court have the power to affirm the trial Federal High Court’s grant of the same. Therefore, by holding that the Appellant was disqualified, to have participated in the said election of 14th April, 2007, the trial Federal High Court, had sat on appeal over the decisions of the Election Tribunal and this Court. To further hold that the Appellant is not qualified to contest any subsequent elections seems to me hallucinatory and dishonourable, and exposes too, how self-destructive some humans could be. The lower Court had no right whatever to bar the Appellant from participating in subsequent elections. As I earlier observed, the hearing conducted at the Federal High Court, Katsina Division and presided over by Hon. Justice Nwokorie in respect of issues, that had already been determined by this Court, is viewed as an aberration, and, it is hereby condemned in the most strong terms. I am of the view that Judges who make such antithetical decisions should not be spared and ought to be severely penalized through the normal constitutional process put in place for discipline of Judges. It is clear that the lower Court had no right whatsoever under any law or the Constitution of the Federal Republic of Nigeria , 1999 to have embarked on deciding the way it did in this case. Accordingly issues 1, 2 and 3 are hereby resolved in favour of the Appellant.
Consequently, this appeal is hereby allowed and the judgment of the Federal High Court Katsina Division, presided over by Hon. Justice C.V. Nwokorie and delivered on 2/04/08 in its entirety is hereby set aside as being a nullity. Further, the Originating Summons filed by the 1st Respondent at the Federal High Court sitting in Katsina State on 29/2/08 is hereby struck out for want of jurisdiction. No order as to costs.
JOSEPH TINE TUR J.C.A.: I had the privilege of reading in advance the judgment delivered by my Lord, THERESA NGOLIKA ORJI-ABADUA JCA and I concur entirely with the summary of the facts, the reasoning and final orders made therein. I shall add only a few comments of mine.
Section 249 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for the establishment of a Federal High Court in Nigeria. Section 252(I) of the same Constitution further provides that, “For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.”
A High Court and a Federal High Court have been established for each State of the Federation including the Federal Capital Territory Abuja (See Section 255(1) and 270(1) of the Constitution to bring justice closer to the people.
This is to further prevent forum shopping by litigants and minimize cost and time spent in achieving justice from these Courts.
Forum shopping is defined by the learned authors of Blacks Law Dictionary 8th edition p.680 as, “a suitable forum” or “The Court in which an action is most appropriately brought, considering the best interest and convenience of the parties and witnesses.”
On the other hand “forum non convenience” means “an unsuitable Court”.
According to the learned authors of Blacks Law Dictionary supra p.680 the authors have further written that it is, “The doctrine that an appropriate forum – even though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place, – Also termed forum inconvenience”.
A close examination of the declaratory and executory reliefs sought by the Respondent in the lower Court by way of the originating summons procedure will reveal that it is an attack on the proposed bye-election to be conducted into the House of Assembly in Oru West Constituency in Imo State by the Independent National Electoral Commission on 14/4/2007. The dispute that arose there from was resolved by the Governorship and Legislative Houses Election Petitions Tribunal in Imo State and thereafter the appeal from the Tribunal’s judgment was heard and determined by the Court of Appeal. Port Harcourt Division, River State in Appeal No. CA/PH/EPT/453/2007 viz Onuigwe vs Emelumba & ors on 23/4/2009.
Thus, when the Respondents instituted the originating summons proceedings in the Federal High Court Katsina in Katsina State on 29/2/2008 the learned trial judge ought to have raised eyebrows as to why he should be called, upon to sit in judgment over the decision of the Tribunal in Imo State and the Court of Appeal Division in Port Harcourt, Rivers State. This definitely constituted forum shopping and an abuse of legal process, hence, his Lordship should have declined jurisdiction. By entertaining the originating summons and granting reliefs to the Respondents in this appeal, judicial anarchy had been introduced into the legal system by his Lordship.
Section 54 and 55(1) and (2) of the Evidence Act 1990 reads as follows:
“54. Even, judgment is conclusive proof as against parties and privies, of facts directly in issue in the case actually decided by the Court and appearing from the judgment itself to be the ground on which it was based: unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.
55(1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is or is deemed to be relevant to the issue, in any subsequent proceeding.
(2) Such a judgment is conclusive proof of the facts which it decides, or night have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel “.
The learned trial judge had no jurisdiction to have entertained the originating summons. Not even the devil knows what went into the mind of the learned trial judge when he entertained and granted reliefs to the respondents at the trial Court. Many reasonable people may wonder why a case that emanated in Imo State and sent on appeal in Port-Harcourt in Rivers State and was finally disposed of would suddenly find a more favourable forum in the Federal High Court Katsina, in Katsina State. Immediately, right thinking member of society may attribute this to judicial corruption. What about legal minds? I think they too will, in the absence of cogent evidence, arrive at the same opinion or conclusion. I say no more.
On the whole I also allow this appeal and declare the judgment of the learned trial judge a nullity and abide by all orders made therein by my Lord, Theresa Ngolika Orli-Abadua, JCA.
OBANDE OGBUINYA, J.C.A.: I had the privilege of reading, in draft, the leading judgment delivered by my learned brother, T. N. Orji-Abadua, JCA and I agree with her reasons and conclusions. The facts, the issues and arguments in this appeal have been adequately articulated in the leading judgment. It is needless to replicate them.
On the premise of the hallowed principle of store decisis, the court below, which under the provision of section 6(5) of the 1999 Constitution is lower in the judicial ladder of Nigerian courts, was without any tinge of vires to deal with, a fortiori upturn, the decision of this court handed down by the port Harcourt, Division. The court below is bound to willy-nilly bow to the decision of this court no matter the level of its wits, see Ogunsolo v. NICON (2010) 73 NWLR (Pt.1211)225.
That was not all. The subject-matter of the action, adjudicated upon by the court below, was outside the four wails of its jurisdiction.
In other words, it did not possess the requisite competence to determine the questions and reliefs encapsulated in the first respondent’s originating summons. In law, the telling effect of want of jurisdiction of a court to entertain a matter is not a moot question” Such a decision, no matter how fairly and brilliantly arrived at, is marooned in the web of nullity, see Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236)775; Cotecna Int’l Ltd. v. Churchgate (Nig) Ltd. (2010)18 NWLR (Pt. 1225)346.
The dismal consequence of nullity was graphically captured by Nnaemeka Agu, JSC, in the case of Okoye V. Nigeria Const. & Furniture co. Ltd. (1991)6 NWLR (pt. 199)501 at 538 thus:
“…When a judgment or order is a nullity it is as if it was never given or made. It can be set aside without much ado.”
see, also, Bello v. INEC (2010)8 NWLR (pt.1196)342.
More than that, such a null decision or proceeding smacks of a pyrrhic victory in the sense that it bestows no enforceable right on its beneficiary nor does it impose any obligation on the victim party; See Ajiboye V. Isholo (2006)13 NWLR (Pt.998) 628; Oyeneyin V. Akinkugbe (2010)4 NWLR (pt.1184) 255. So be it with the decision of the court below.
On account of the foregoing, coupled with detailed reasons advanced by my learned brother in the leading judgment, I too allow the appeal. I abide by the orders made in the leading judgment.
Appearances
L. M. Alozie Esq; with P. C. Ukachukwu Esq;For Appellant
AND
For Respondent
