EJIOFOR & ORS v. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ANOR
(2022)LCN/16449(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, September 15, 2022
CA/E/220/2022(R)
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. MR. UGWU ANEKE FREDRICK EJIOFOR 2. MR. OLINYA EMMANUEL CHUKWUEMEKA 3. MR. NWEDE JUDGE CHIDIEBERE 4. MR. ODO LAWRENCE ARINZE 5. MR. EKWUEME BLESSING 6. MR. ANUKEMYI SUNDAY MMADUABUCHI 7. MR. NDU CHINONSO EMMANUEL 8. MRS. MBA CHIOMA 9. MR. EDE MICKEL ONYEKACHI 10. MR. OGENYI SOLOMON OBIAJULU 11. UGWUAGBO IKECHUKWU 12. MICHEAL MADUABUCHI 13. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)
And
1. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION 2. DR. MIKE E. AJOGWU, S.A.N RESPONDENT(S)
RATIO:
POSITION OF LAW ON THE ISSUE OF JURISDICTION
The fact that jurisdiction is fundamental to the hearing of any matter before a Court of law is elementary. In the recent decision of the Supreme Court of Shell Nigeria Exp. & Prod. Co. (Nig) Ltd vs. FIRS (2021) 17 NWLR (pt. 1806) 545 AT 567, it was reiterated that the issue of jurisdiction being radical in nature, and being at the very foundation of adjudication can be raised at any stage of the proceedings, be it at the stage of trial or even on appeal to the highest level. The simple reason thereto being that a trial conducted without jurisdiction amounts to a waste of precious time as the proceedings no matter how well conducted and or decided will be discarded at the end of the day and declared null and void. The determination of Jurisdiction to the hearing of a matter before a Court is so important and can therefore be raised even by the Court suo motu, and a determination made thereon before proceeding with the merit of the case. See Barclays Bank of Nigeria vs. CBN (1976) 6SC 175, Usman Danfodio University vs. Kraus Thompson Organisation (2001) 15NWLR (pt. 736) 305. HAMMA AKAWU BARKA, J.C.A.
POSITION OF LAW ON THE ISSUE OF JURISDICTION
The cases of Ralph Uwazurike & Ors vs. Attorney-General of the Federation (2007) 8NWLR (pt. 1035) 1 AT 13 per Ogbuagu JSC, and Nonye Iwunze vs. Federal Republic of Nigeria (2014) 6 NWLR (pt. 1404) 500 AT 596, all harp on the fact that:
“it is not in doubt that appeals are creatures of statutes so, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the rules of Court. The failure by any appellant(s) to comply with statutory provision or requirement prescribed by the relevant law or rules under which such appeals may be competent and properly brought before the Court, will certainly deprive the appellate Court jurisdiction to entertain and or adjudicate on the appeal.” HAMMA AKAWU BARKA, J.C.A.
WHETHER AN APPEAL FROM THE LOCAL GOVERNMENT ELECTION PETITION SHALL LIE TO THE COURT OF APPEAL
Faced with the question of whether the law provided that an appeal from the Local Government Election Petition shall lie to the Court of Appeal, the Supreme Court, through the mouth of Ogbuagu JSC, in Chief (MRS) Olufunke Victoria Ehuwa vs. Ondo State Independent Electoral Commission & Ors (2006) 10NWLR (pt. 1012) 544 AT 566, was emphatic in pointing out that:
“The next question is, did the law provide that an appeal from the Local Government Election Petition shall lie to the Court of Appeal? Of course not. Commonsensically, could the Ondo State Legislature have made such a provision, and if made can it ever be valid, the answers are never – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate Court on the decision of an election petition Tribunal. Surely and certainly and this is settled, an appellate jurisdiction is obviously and clearly created by statute. Therefore, thus no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provisions. It is well established that the right to appeal does not exist for any person unless it is created by statute or the constitution. It does not derive from any other source, nor the inherent jurisdiction of the Court or common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision.” HAMMA AKAWU BARKA, J.C.A.
POSITION OF LAW ON THE ISSUE OF JURISDICTION
In the recent decision of the Apex Court on the issue; Barrister. Iliya Ibn Aliyu vs. ALL Progressive Congress & ors (2022) LPELR_57345 (SC), the Supreme Court did not mince words, establishing the law on the issue thus:
“It is very clear that jurisdiction is donated to this Court and all other Courts by statutes, why must the Court deliberately open flood gate to endless frivolous litigation? Does the Constitution talk about the local government elections? To address this issue in support of the position taken by the lower Court, I must embark on navigation into the Electoral Act to unveil where the appellant thought he could find solace in clothing himself with the right to approach the Court of Appeal in his bid to contest for the office of chairman in a local government… area council means Area councils recognized and existing by virtue of Section 3 (6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8(5) of the Constitution, Section 3(6) of the Constitution provides for 778 Local Governments and six Area Councils as set out in the 1 and 11 Schedules to the Constitution of the Federal Republic of Nigeria as amended, the Appellant in the instant appeal falls within the 778 Local Governments… he does not come within the schedule to the Constitution, where the Electoral Act applies, in other words, he does not belong to a Local Government Council Elections conducted by his party for the purpose of selecting candidates for the Local government elections to be conducted by the Nassarawa State Independent Electoral Commission. The trial Court, the Court below and consequently this Court has no jurisdiction to hear and determine any cause of action or petition emanating from the conduct of election to posts in the Local Government Councils in the country.” HAMMA AKAWU BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal emanated from the judgment of the High Court of Enugu State of Nigeria, in suit with number E/132/2022 between Mr. Ugwu Aneke Frederick Ejiofor & 12 Ors. vs. The Enugu State Independent Electoral Commission and 1 Or, delivered on the 23rd day of June, 2022 wherein, the Court declined jurisdiction.
HISTORY OF THE CASE
It should be recalled that Appellants as Plaintiffs before the lower Court by way of an originating summons brought pursuant to Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 10 (a) of the Enugu State of Nigeria official gazette no. 6 of 2021, Vol. 30 Published on 17/11/2021 and Enugu State of Nigeria official gazette no. 1 Vol. 31 Published on 10/1/2022 and Order 3 Rule 8, Enugu State High Court (Civil Procedure) Rules 2020, sought for the determination of the following questions:
I. WHETHER by the express provisions of 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 10 (a) of the Enugu State of Nigeria official gazette no. 6 of 2021, Vol. 30 Published on 17/11/2021 and Enugu State of Nigeria official gazette no. 1 Vol. 31 Published on 10/1/2022, the 22nd Plaintiff has a constitutional right to nominate and sponsor the 1st to 21st Plaintiffs as Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Council Election fixed for the 23rd February, 2022.
II. WHETHER the defendants’ rejection/disqualification of the nomination and sponsorship of the 1st to 21st Plaintiffs as the Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Council Election fixed for 23rd February, 2022 is a violation of Sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria official gazette no. 6 of 2021, Vol. 30 Published on 17/11/2021 and Enugu State of Nigeria official gazette no. 1 Vol. 31 Published on 10/1/2022.
III. WHETHER the defendants’ violation of the provisions of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) entitles the Plaintiffs to damages, compensation and/or cost.
In the event, the questions posed are determined in his favor, Appellants would be seeking for the following reliefs:
i. A DECLARATION that by the express provisions of Sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria official gazette no. 6 of 2021, Vol. 30 Published on 17/11/2021 and Enugu State of Nigeria official gazette no. 1 Vol. 31 Published on 10/1/2022, the 22nd plaintiff has a constitutional right to nominate and sponsor the 1st to 21st plaintiffs as Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Council Election fixed for 23rd day of February, 2022.
ii. A DECLARATION that the defendants’ rejection/disqualification of the 22nd plaintiff’s nomination and sponsorship of the 1st to 21st Plaintiffs as the Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Area to contest the 2022 Enugu State Local Government council election fixed for 23rd February, 2022 is a violation of Sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria official gazette no. 6 of 2021, Vol. 30 Published on 17/11/2021 and Enugu State of Nigeria official gazette no. 1 Vol. 31 Published on 10/1/2022.
iii. AN ORDER of Mandatory Injunction compelling the defendants either by themselves, their servants, agents, privies, surrogate, staff, appointees, officers or howsoever called or any person acting on the instructions and directives of the defendants to include the 1st to 21st plaintiffs as the duly nominated Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for 23/2/2022.
iv. AN ORDER of perpetual injunction restraining the defendants either by themselves their servants, agents, privies, surrogate, staff, appointees, officers or howsoever called or any person acting on the instructions and directives of the defendants from rejecting/disqualifying the 1st to 16th Claimants as the 22nd Claimant’s duly nominated Chairmanship and Councillorship candidates for Igbo-Eze North Local Government Council Election fixed for the 23/02/2022.
v. AN ORDER of perpetual injunction restraining the defendants whether by themselves, their servants, agents, privies, surrogates, staff, appointees, officers, adhoc staff howsoever called or any person acting on the instructions or directives of the defendants from conducting the 2022 Enugu State Local Government Council Election on 23/2/2022 without the 1st to 21st Claimants as the duly nominated Chairmanship and Councillorship candidates of the 22nd Claimant for Igbo-Eze North Local Government Area.
vi. The sum of ₦50,000,000.00 (Fifty Million Naira) only being general damages for the defendants’ unwarranted and illegal rejection/disqualification of the 1st to 21st Claimants as the 12th Claimant’s duly nominated Chairmanship Candidates for Igbo-Eze North Local Government Council Election fixed for 23/2/2022.
vii. The sum of ₦10,000,000.00 (Ten Million Naira) only being the cost of this suit.
The originating summons is supported by a 5 paragraphed affidavit in verification of endorsement on the originating summons, affidavit of urgency in support of originating summons borne on 36 paragraphs, all deposed to by the 1st Plaintiff.
Hinge on the motion papers are sundry documents all in support of the prayers therein. The defendants filed a counter-affidavit of 49 paragraphs on the 7th of April, 2022 and deposed to by Mrs. Uzoamaka Ngwu, a legal practitioner in the Ministry of Justice, Enugu State. Also filed along with the counter-affidavit are sundry documents. The defendants also filed a written address on the 7th of July, 2022. The defendants also filed a notice of preliminary objection pursuant to Section 6 (3) of the Fifth Schedule to the Local Government Law of Enugu State, Order 3 Rule 8 of the Enugu State High Court (Civil Procedure) Rules and Order 22 rule 3 (2) Enugu State High Court (Civil Procedure) Rules, 2020 and under the inherent jurisdiction of this Honourable Court seeking for the following Orders:
i. AN ORDER of this Honourable Court dismissing/striking out this suit for being grossly incompetent.
ii. AN ORDER dismissing/striking out the suit as presently constituted for non-joinder of necessary parties.
iii. AN ORDER of this Honourable Court dismissing/striking out this suit filed on 22/2/2022 for lack of jurisdiction, in that, the cause of action and the reliefs are claimed by the Plaintiffs are non-justiciable.
iv. AN ORDER of this Honourable Court dismissing/striking out this suit filed on 22/2/2022 for being academic, hypothetical and spent.
v. AN ORDER of this Honourable Court dismissing/striking out this suit as the same was not issued or validly issued in accordance with the rules of this honourable Court.
vi. AN ORDER of this Honourable Court dismissing/striking out the suit herein as the same cannot be properly commenced and or accommodated under an Originating Summons procedure.
vii. And for such further Order(s) as this honourable Court may deem fit to make in the circumstances of hearing this application.
At the close of evidence, the lower Court stated that:-
“In paragraph 39 of the counter-affidavit in opposition to the Originating Summons, the deponent averred that the duly nominated candidates of the 22nd Plaintiff APC participated in the Local Elections which held on the 23/2/2022.
To buttress this, they exhibited a list of those who participated in Exhibit EN3 annexed to their counter-affidavit and in EN4 annexed the ballot paper which showed that the 22nd plaintiff participated in the election.
These facts were not contradicted. By virtue of this, it is clear that the constitutional right of APC was not violated in accord with Section 221 and 229 of CFRN. They presented candidates who participated in the elections.
It is then clear that hidden in this action before me is a dispute between personalities in the 22nd plaintiff, no matter how it is couched, it is clear that it is an intra-party dispute as Ben Nwoye and Barr Ugochukwu Agballa’s candidates seem to be in conflict.
This cause of action is not one contemplated by Section 87 (9) of the Electoral Act, 2022 which empowers the Court to entertain matters stipulated therein. What is then the position of the Court to matters involving intra-party disputes. In Gwede V INEC & 7 Ors. (2014) LPELR-2676, the Court held thus:-
“Having said so much on this, it is time for the Court to berth this ship in the form of a preliminary objection. The solution of issues numbers 3, 4, and 5 in favor of the defendants/Objectors necessarily connotes that this Court does not have the jurisdiction to entertain the Plaintiffs’ action. The preliminary objection succeeds.
The law is settled that where a Court lacks jurisdiction, the proper order to make is to strike out the matter. See Okoye vs. Nigerian Constructions and Furniture Co Ltd (1991) 6NWLR (pt. 199) 501 AT 534, Gombe vs. PW (Nig) Ltd (1995) 6 NWLR (pt. 402) 402 and Okolo vs. Union Bank (2004) 13 WRN 62 AT 76 – 77. This being so, the Plaintiffs’ action in Suit No. E/132/2022 is hereby struck out for want of jurisdiction.”
Dissatisfied with the decision of the Court below, Appellants on the 29th of July, 2022 filed a notice of appeal predicated on five grounds, and briefs having been filed and exchanged, on the date slated for hearing, this Court asked parties to address it on the issue of jurisdiction, consequent upon which appellants filed a written address on the 25th of August, 2022. Respondents also filed their written address on the 25th of August, 2022. Parties on the 1st day of September, 2022 adopted their respective addresses.
In the Appellants’ written address settled by George Ogara of learned Counsel, it was contended that contrary to the holding of the lower Court, this Court and indeed the lower Court had jurisdiction to have entertained the suit before it. He argued that the claims by the Appellants bother on the constitutional right of a political party to nominate and sponsor candidates in a Local Government Council election. He made reference to Section 7 (4) of the Constitution of the Federal Republic of Nigeria 1999 as amended, stating that Appellants’ political party nominated the Appellants as its candidates for the 2022 Local Government Council elections in Enugu State, but were excluded by the Enugu State Independent Electoral Commission before the election. He submitted that the right to vote and be voted for enured to the party and their political party and relied on the case of Coca-Cola Nig. Ltd vs. Akinsanya (2013) 18 NWLR (pt. 1386) 255, to the effect that:
“where the Constitution bestows a right on a citizen and does not expressly take away or provide how the right should be lost or forfeited in the circumstance, the Court has the duty and indeed the obligation to ensure the enured (sic) right is not lost or denied the citizen by construction that is narrow and not purposive. To this end, the established practice of the Court is, where the Constitutional right in particular and indeed any right in general of a citizen is threatened or violated, it is for the Court to be creative in its decision in order to ensure that it preserves and protects the right by providing remedy for the citizen.”
It was further submitted that the National Assembly under item 11 of the concurrent legislative list, empowered to make laws with respect to the registration of voters and the procedure regulating elections in the local governments. He then argued that pursuant to their powers under item 11 part 11 of the concurrent list, the National Assembly made the CFRN 1999, (4th Alteration) no 21 regulating the procedure in pre-election matters. He maintains that the fourth alteration also applies to local government elections, and election cases from the decision of a high Court are appealable to the Court of appeal pursuant to Section 241 of the Constitution. He opines that the case appealed against is the final decision of the High Court containing issues of pure law, and pertaining to the interpretation and application of Section 221 and 229 of the Constitution, and the issue being a pre-election matter under Section 285 of the Constitution as amended. He urged the Court to assume jurisdiction and to hear the appeal on its merit.
Submitting contrariwise, Mr. Ikechukwu Onuoma, the learned counsel appearing for the respondents, holds the view that this Court lacks the jurisdiction to hear the appeal, and relied on various decisions of this Court notably the unreported decision of this Court in Ezeh Chidiebere Johnson & 14 Ors vs. Enugu State Independent Electoral Commission & Anor in appeal with No. CA/E/168/2022, as well as the decision of the Supreme Court in Barr. Iliya Ibn Aliyu vs. APC & Ors (2022) LPELR – 57345 (SC). He submitted that by the provisions of Section 103 of the Electoral Act, it is clear that elections into the Local Governments conducted under state laws cannot find their way to the Court of appeal or the Supreme Court under any guise. He then urged the Court to hold that this Court is bereft of jurisdiction and thereby urged the Court to strike out the appeal.
I had cause to look into similar issues raised by the appellants in the case of Ezeh Chidiebere Johnson & 14 Ors vs. Enugu State Independent Electoral Commission & Anor (supra), where I stated that: “The instant appeal arose as a result of the judgment of the Enugu State High Court delivered on the 7th day of June, 2022, coram H.O. Eya J, in Suit No. E/127/2022; wherein the claimants’ action was dismissed with costs.
It should be recalled that the appellants as claimants before the lower Court, and by way an originating summons, brought pursuant to Sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 10(a) of the Enugu State of Nigeria Official Gazette No. 6 of 2021, Vol. 30, published on the 7/11/2021, and the Enugu State of Nigeria Official Gazette No. 1 vol. 31 published on the 10/1/2022 and Order 3 Rule 8 of the Enugu State High Court (Civil procedure) Rules 2020, filed on the 22 of February 2022, sought for the determination of the following questions:
1. Whether by the express provision of Section 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria Official Gazette No. 6, vol. 30, published on 17/11/2021 and Enugu State of Nigeria Official Gazette No. 31, Vol. 1 published on 10/1/2022, the 15th Claimant has a Constitutional right to nominate and sponsor the 1st to 14th Claimant as Chairmanship and Councillorship Candidates for Nkanu West Local Government Area, in the Enugu State Local Government Council Election fixed for 23rd February, 2022.
2. Whether the defendants’ rejection/disqualification of the nomination and sponsorship of the 1st to 14th claimants as the Chairmanship and Councillorship Candidates for Nkanu West Local Government Council Election fixed for 23rd February, 2022 is a violation of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) andSection 10 (a) of the Enugu State of Nigeria, official Gazette No. 6, vol. 30, published on 17/11/2021 and Enugu State of Nigeria, Official Gazette No. vol. 1 published on 10/1/2022.
3. Whether the Defendants’ violation of the provisions of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) entitles the plaintiffs to damages, compensation and/or cost.
And should the questions posed be positively determined, claimant prayed for the following reliefs:
1. A declaration that by the express provisions of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 10 (a) of the Enugu State of Nigeria Official Gazette No. 6 Vol. 30 published on 17/11/2021 and Official gazette No. 1 vol. 1 published on 10/1/2022, the 15th Claimant has a Constitutional right to nominate and sponsor the 1st to 14th Claimants as Chairmanship and Councillorship Candidates for Nkanu West Local Government Area in the Enugu State Local Government Council Election fixed for 23rd day of February, 2022
2. A declaration that the defendants’ rejection/disqualification of the 15th Claimant’s nomination and sponsorship of the 1st to 14th Claimant and the Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for the 23rd February, 2022 is a violation of Section 221 and 229 of the Constitution of the Federal Republic of Nigeria, official gazette No. 6, vol 30, published on 17/11/2021 and Enugu State of Nigeria, Official gazette No. 31 Vol. 1 published on 10/1/2022.
3. AN ORDER of Mandatory Injunction compelling the defendants either by themselves, their servants, agents, privies, surrogate, staff, appointees, officers or howsoever called or any person acting on the instructions and directives of the defendants to include the 1st to 14th Claimants as the duly nominated Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for 23/2/2022.
4. AN ORDER of Perpetual Injunction restraining the defendants either by themselves, their servants, agents, privies, surrogates, staff, appointees, officers, adhoc staff or howsoever called or any person acting on instructions or directives of the defendants from rejecting/disqualifying the 1st to 14th Claimants as the 15th Claimant’s duly nominated Chairmanship and Councillorship Candidates for Nkanu West Local Government Area to contest 2022 Enugu State Local Government Council Election fixed for 23 February, 2022.
5. AN ORDER of Perpetual Injunction restraining the defendants whether by themselves, their servants, agents, privies surrogates’ staff, appointees, officers, adhoc staff or howsoever called or any person acting on the instructions or directives of the defendants from conducting the 2022 Enugu State Local Government Council Election on 23/2/2022 without the 1st to 14th Claimants as the duly nominated Chairmanship and Councillorship Candidates of the 15th Claimant for Nkanu West Local Government Area.
6. The sum of N50,000,000.00 (Fifty Million Naira) only being general damages for the rejection/disqualification of the 1st to 14th Claimants as the 15th Claimant’s duly nominated Chairmanship Candidates for Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Council Election fixed for 23/2/2022
7. The sum of N10,000,000.00 (Ten million Naira) being the cost of this suit.
The originating summons is supported by sundry documents including an affidavit of verification, an affidavit of urgency, a host of exhibits all in support of the originating process, and a written address. The respondents on their part reacted to the originating summons served on them by filling a counter-affidavit to which is attached some documents and a written address. On receipt of the counter-affidavit filed by the respondents, claimants filed a further affidavit and a reply on points of law. Filed simultaneously with the counter-affidavit by the respondents, is a preliminary objection to the hearing of the suit on the 7/4/2022, to which the claimants responded to by filing a counter affidavit to which is hinged a bundle of documents.
The lower Court attended to the Preliminary objection and the substantive suit simultaneously at the end of which it dismissed the suit for want of competence on the 17/6/2022.
Dissatisfied with the lower Court’s decision, claimants appealed the said decision to this Court by filing a Notice of Appeal on the 17th of June, 2022 predicated upon five grounds of appeal. On the 1/7/2022, the appeal having been properly entered to this Court, appellants filed a brief of argument on the 6th of July, 2022. Owing to the exigencies of time, appellants filed on the 27/7/2022, an application under Section 285(11), (12) of the CFRN 1999 Fourth Schedule, and under the inherent jurisdiction of the Court praying for the following reliefs:
1. AN ORDER of this Honorable Court for extension of time within which the Plaintiffs/Applicants can file and serve their counter- affidavit to the Defendants/Respondents Notice of Preliminary Objection and further affidavit/reply on point of law to the Defendants/Respondents counter affidavit out of time.
2. AN ORDER deeming the above-mentioned processes as duly and properly filed and served the appropriate fees having been paid.
3. AND for such further or other order(s) as the Honorable Court may deem fit to make in the circumstances.
On the date scheduled for the hearing of the application, this Court upon the examination of the grounds upon which the application is premised and the accompanying prayers, as well as the nature of the appeal before the Court, invited the parties to address it and whether it had the requisite jurisdiction to entertain the appeal in the first place, and on the 9th of August, 2022 being the date adjourned for parties to address the Court, Mr. Chibuzor, the learned counsel appearing for the appellants/applicants, submitting on whether this Court has jurisdiction to entertain the appeal, alluded to the provisions of Sections 7 (1), 8(3), 197(1), 221, 229, 240, and 241 (1) (c) of the Constitution of the FRN 1999 as amended maintaining that the Court has the unfettered jurisdiction to entertain the appeal before it and thereby urged the Court to so hold. Submitting contrariwise, Mr. Idam the learned counsel for the respondents is of the view that the substance of the matter before the Court borders on the election affairs of the Local Govt Election of Enugu State conducted on the 23rd of February, 2022, contending that Section 241 (1) relied upon by the appellants being a general provision cannot be construed at large, as the section appears to have been hemmed by the provisions of Section 246 of the same Constitution, and the further provisions of Section 285 thereof. He argued that there is no provision in any law that empowers this Court to entertain appeals from Local Government Elections, and relied on the case of Chief Mrs. Olufunke Victoria Ehuwa vs. Ondo State Electoral Commission (2006) 10 NWLR (pt. 1012), cited in the cases of Ubandoma vs. Yahaya & ors (2020) LPELR – 51089. He finally urged the Court to strike out the appeal for lack of jurisdiction.
The fact that jurisdiction is fundamental to the hearing of any matter before a Court of law is elementary. In the recent decision of the Supreme Court of Shell Nigeria Exp. & Prod. Co. (Nig) Ltd vs. FIRS (2021) 17 NWLR (pt. 1806) 545 AT 567, it was reiterated that the issue of jurisdiction being radical in nature, and being at the very foundation of adjudication can be raised at any stage of the proceedings, be it at the stage of trial or even on appeal to the highest level. The simple reason thereto being that a trial conducted without jurisdiction amounts to a waste of precious time as the proceedings no matter how well conducted and or decided will be discarded at the end of the day and declared null and void. The determination of Jurisdiction to the hearing of a matter before a Court is so important and can therefore be raised even by the Court suo motu, and a determination made thereon before proceeding with the merit of the case. See Barclays Bank of Nigeria vs. CBN (1976) 6SC 175, Usman Danfodio University vs. Kraus Thompson Organisation (2001) 15NWLR (pt. 736) 305.
The cases of Ralph Uwazurike & Ors vs. Attorney-General of the Federation (2007) 8NWLR (pt. 1035) 1 AT 13 per Ogbuagu JSC, and Nonye Iwunze vs. Federal Republic of Nigeria (2014) 6 NWLR (pt. 1404) 500 AT 596, all harp on the fact that:
“it is not in doubt that appeals are creatures of statutes so, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the rules of Court. The failure by any appellant(s) to comply with statutory provision or requirement prescribed by the relevant law or rules under which such appeals may be competent and properly brought before the Court, will certainly deprive the appellate Court jurisdiction to entertain and or adjudicate on the appeal.”
The appellants by their own showing, pins their grouse to the rejection/disqualification of the 15th Claimant’s nomination and sponsorship of the 1st – 14th Claimants as Chairmanship and Councillorship candidates for the Nkanu West Local Government Area to contest the 2022 Enugu State Local Government Election fixed, and now held on the 23rd of February, 2022, as being a violation of Section 221 and 229 of the CFRN 1999 as amended and Section 10 (a) of the Enugu State of Nigeria official Gazette No. 6 vol. 30 published on the 17th of November, 2021 as well as the Enugu State of Nigeria, Official Gazette No. 31 vol. 1 published on the 10/1/2022.
Simply put, the substance of the appellants’ complaint is predicated upon the failure of the respondents to recognize the nomination of the 1st – 14th appellants as Chairmanship and Councillorship candidates by the 15th appellant respecting the election which has since been held. Or in other words still a challenge to the nomination of candidates to the Local Government Election held in Enugu State on the 23rd of February, 2022.
That being the case, to be answered is, whether this Court possesses the vires to entertain the appeal in the circumstance.
The position of this Court on the issue has been well articulated in the recent case of Salisu Ubandoma and 1or vs. Safiyanu Yahaya and 2 Ors, in appeal with No. CA/A/260/2020 delivered on the 4th of August, 2020, also cited as Ubandoma vs. Yahaya & Ors (2020) LPELR – 51089 (CA) per Ige JCA. Therein my learned brother meticulously dealt with the contentious issue of whether the Court of Appeal can be said to have jurisdiction entertaining appeals from elections emanating from Local Governments in the country, to the conclusion that it doesn’t have such jurisdiction, and accordingly declined jurisdiction to hear the appeal from the Niger State Local Government Election Tribunal.
Let me briefly make reference to the submission of the learned counsel for the appellants on the issue. If I understand him well, it is that by virtue of the intendment of some named sections of the Constitution of the Federal Republic of Nigeria 1999 as amended, most particularly Sections 7(1), 8(3), 197 (1) b, 221, 229, 240 and 241 (1) (c) thereof, this Court is imbued with the jurisdiction to entertain the appeal, but cleverly avoided the stipulations in Section 246 of the said Constitution. Accordingly, I have carefully read the sections of the Constitution which were referred to, by the learned counsel, and it seems clear to me that while Sections 7(1), 8(3) 197 (1) b, 221 and 229 deals with the creation of Local Governments, the creation of a State Independent Electoral Commission, the formation of political parties for the purpose of canvassing for votes and the definition of a political party, Sections 240 and 241 of the Constitution deals with the general jurisdiction conferred on the Court of Appeal of the Federation by the Constitution. Even then, Section 246 of the same Constitution with respect to Electoral Matters circumscribed in specific terms the jurisdiction of the Court in matters relating to election matters. At no where in the sections cited by the learned counsel can it be inferred that this Court is given jurisdiction to entertain and to determine matters arising for elections conducted in respect of Local Government councils. This Court put the issue thus in the case of Ubandoma vs. Yahaya (supra) as follows:
“It is also relevant to put it clearly that Sections 240, 241, 242 and 243 of the said Constitution do not bestow on this Court any jurisdiction on election matters in respect of a Local Government Area of a state. The aforesaid sections are made subject to Section 246 and 285 of the Constitution of the Federal Republic of Nigeria which confer appellate jurisdiction on Court of Appeal in respect of elections conducted by the Independent National Electoral Commission of Members of the National Assembly, State Houses of Assemblies of the States in the federation and in respect of a governor of a State.” Faced with the question of whether the law provided that an appeal from the Local Government Election Petition shall lie to the Court of Appeal, the Supreme Court, through the mouth of Ogbuagu JSC, in Chief (MRS) Olufunke Victoria Ehuwa vs. Ondo State Independent Electoral Commission & Ors (2006) 10NWLR (pt. 1012) 544 AT 566, was emphatic in pointing out that:
“The next question is, did the law provide that an appeal from the Local Government Election Petition shall lie to the Court of Appeal? Of course not. Commonsensically, could the Ondo State Legislature have made such a provision, and if made can it ever be valid, the answers are never – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate Court on the decision of an election petition Tribunal. Surely and certainly and this is settled, an appellate jurisdiction is obviously and clearly created by statute. Therefore, thus no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provisions. It is well established that the right to appeal does not exist for any person unless it is created by statute or the constitution. It does not derive from any other source, nor the inherent jurisdiction of the Court or common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision.”
This pronouncement was favourably adopted by the other panelist, with Kalgo JSC, hitting the nail squarely on the head and stating that:
“Nowhere in the Electoral Act, 2010 as amended any provision made for appeals from the decisions of the State High Courts on election petitions to be heard by the Court of Appeal. There was no such provision in the 1999 Constitution either, as only the National Assembly confer such powers under Section 246 (2) of the said Constitution. And the provision of Section 241 of the said Constitution would not apply because an election petition is not strictly civil proceedings; it is sui generis … I am of the opinion that the Court of Appeal had no jurisdiction to entertain the appeal from the decisions of the Ondo State High Court in this matter.” Also emphasizing the point, my Lord Onnoghen JSC, in his own contribution stated that:
“it is settled law that jurisdiction is a creation of statute or that jurisdiction is always donated by the Constitution or statute and is never inferred or implied. Looking closely at the constitutional provisions, I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of Appeal, the jurisdiction to hear appeals from the High Court emanating from decisions of that Court on appeal from Local Government Election Tribunals. It is not disputed that election petitions proceedings are not part and parcel of ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose.”
In the recent decision of the Apex Court on the issue; Barrister. Iliya Ibn Aliyu vs. ALL Progressive Congress & ors (2022) LPELR_57345 (SC), the Supreme Court did not mince words, establishing the law on the issue thus:
“It is very clear that jurisdiction is donated to this Court and all other Courts by statutes, why must the Court deliberately open flood gate to endless frivolous litigation? Does the Constitution talk about the local government elections? To address this issue in support of the position taken by the lower Court, I must embark on navigation into the Electoral Act to unveil where the appellant thought he could find solace in clothing himself with the right to approach the Court of Appeal in his bid to contest for the office of chairman in a local government… area council means Area councils recognized and existing by virtue of Section 3 (6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8(5) of the Constitution, Section 3(6) of the Constitution provides for 778 Local Governments and six Area Councils as set out in the 1 and 11 Schedules to the Constitution of the Federal Republic of Nigeria as amended, the Appellant in the instant appeal falls within the 778 Local Governments… he does not come within the schedule to the Constitution, where the Electoral Act applies, in other words, he does not belong to a Local Government Council Elections conducted by his party for the purpose of selecting candidates for the Local government elections to be conducted by the Nassarawa State Independent Electoral Commission. The trial Court, the Court below and consequently this Court has no jurisdiction to hear and determine any cause of action or petition emanating from the conduct of election to posts in the Local Government Councils in the country.”
I totally agree with the learned counsel, Mr Okechukwu Onuoma, that an election petition be it pre or post cannot be equated with normal civil procedures, being sui generis, and by the same reasoning in Nurudeen vs. Oluwaseyi & ors (2020) LPELR – 52643 (CA) per Ige JCA, sections 240, 241, 242, 243, and 272 of the Constitution upon which the learned counsel for the Appellants places premium, is not available to him in the present circumstance.
The aggregate of the decision of this Court and the Apex Court is that this Court lacks the vires to entertain any appeal emanating from elections conducted in respect of local Governments, and all the sections relied upon by the learned counsel for the appellants of no application and thereby unhelpful to his cause. Even if the learned counsel were to hide under the cover of a constitutional interpretation of the questions raised for interpretation, the reliefs sought at the end of the day squarely belies that assumption as same seeks to question the disqualification of the 1st – 14th appellants by the respondents in the election held on the 23rd of February, 2022, and thereby an election matter governed strictly by the Enugu State Law.
In any case, the application brought under Section 285 (11) and (12) of the Constitution by the appellants is obviously made in error, being that Section 285 is strictly in respect pre-election matters defined by Section 285(14) of the Constitution and in respect of the Electoral Act 2022 of the constitution and do not envisage any other law, for instance the Local Government laws or gazettes governing Local Government elections for that matter.
From all that has been said, it is apparent that this Court lacks the necessary vires to entertain and to determine the appeal filed, the consequence of which is that it is hereby struck out for want of jurisdiction. I make no order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
DANLAMI ZAMA SENCHI, J.C.A.: I have the privilege of reading in draft before now the lead ruling of my learned brother, HAMMA AKAWU BARKA, JCA just delivered. All that need to be said in respect of the jurisdiction of this Court to entertain appeals from the High Court pertaining to Local Government Election have been aptly and succinctly said in the lead ruling. I therefore have nothing to contribute but rather I endorse the reasoning of my learned brother in his lead ruling as mine that this Court has no jurisdiction and the appeal is consequently struck out.
I make no award as to costs.
Appearances:
George Ogara For Appellant(s)
Ikechukwu Onuoma For Respondent(s)
