EKUN v. OLASUNKANMI & ORS
(2020)LCN/14675(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, October 20, 2020
CA/AK/263/2020(R)
RATIO
JURISDICTION: DUTY OF COURT TO DETERMINE THE ISSUE OF JURISDICTION FIRST
Whenever the issue of jurisdiction is raised, it must be dispensed with by the Court before doing any other thing on the substantive case before it. See the cases of MADUKOLU v. NKEMDILIM (1962) LPELR – SC. 196/87; ARJAY LTD V. A.M.S LTD (2003) 7 NWLR (pt.820) 879 and SHELL PETROLEUM DEV. CO. NIG. LTD V. ISAIAH (2001) LPELR – SC. 75/1997. PER ABDULLAHI, J.C.A.
COURT: JURISDICTION OF THE COURT OF APPEAL; WHEN WILL AN APPEAL LIE AS OF RIGHT AND WITH LEAVE OF COURT TO THE COURT OF APPEAL
The jurisdiction of Court of Appeal is conferred on it by the 1999 Constitution of the Federal Republic of Nigeria (as amended) in Sections 239 (1) & (2), 240, 241, 242, 243, 244, 245 and 246 (1) & (2) and each Section clearly specifies when appeal shall lie as of right or with the leave of the Court.
The provision of S.246 in particular prescribed instances in which an appeal can lie as of right to the Court of Appeal and no mention of this category of appeal. Furthermore, no any legislation, either the Electoral Act 2010 (as amended) nor the relevant Electoral laws of Ondo State and the Guidelines of Ondo State Independent Electoral Commission conferring jurisdiction on this Court in respect of Local Government Election Matters. This means that, the Court of appeal is excluded from exercising powers on pre-election related matters emanating from the conduct or otherwise of election into Councillorship and Chairmanship of Local Governments. In this vein, no right of appeal to the Court of Appeal from the decision of the High Court of any State in Pre or Post-election matters would exists or can be exercised by an aggrieved party. I so hold. See UGWUH V. ATTORNEY GENERAL, EAST CENTRAL STATE (1975) 6 SC.13 @ 16 where it was held that:
“Undoubtedly all right of appeal are statutory and in order to exercise a right of appeal, it must be demonstrated by the prospective Appellant that such right has been or is conferred on him by some statute…”
There was even no leave to appeal sought and obtained by the Appellant before appealing to the Court of Appeal to state his grievance. This Court is therefore robbed of jurisdiction to entertain the appeal as constituted. The appeal is incompetent, and this Court will not assume jurisdiction. See the cases of IKWEKI & ORS V. EBELE & ANOR (2005) LPER – 1490 (SC) and NATIONAL INSURANCE COMMISSION & ORS V. ACEN INSURANCE COMPANY LTD & ORS (2006) LPELR – 5936 (CA) @ p.12 paras. C – E. See also the cases of SALISU UBANDOMA & ANR V. SAFIYANU YAHAYA & 2 ORS, CA/A/260/2020 delivered on 4/8/2020 by Court of Appeal, Abuja Division and MR. OGUNMODEDE NURUDEEN V MR. OMOSULU OJO OLUWASEYI & 4 ORS, CA/AK/232/2020 delivered on 2nd day of October, 2020 by Court of Appeal, Akure Division. (Both unreported). PER ABDULLAHI, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
BOLUWAJI EKUN APPELANT(S)
And
- MR. DAODU ADENIYI OLASUNKANMI 2. ALL PROGRESSIVES CONGRESS PARTY, ONDO STATE CHAPTER 3. MR. ADE ADETIMEHIN (CHAIRMAN, ALL PROGRESSIVES CONGRESS PARTY, ONDO STATE CHAPTER) 4. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (ODIEC) 5. HON. AJAYI JOHNSON (CHAIRMAN, ALL PROGRESSIVES CONGRESS PARTY, AKOKO SOUTH EAST CHAPTER) 6. MR. AROWOSOLA EMMANUEL(SECRETARY, ALL PROGRESSIVES CONGRESS PARTY, AKOKO SOUTH EAST LOCAL GOVERNMENT CHAPTER) 7. MR. AJOWELE EDWARD (CHAIRMAN, ALL PROGRESSIVES CONGRESS PARTY, WARD 5 AKOKO SOUTH EAST LOCAL GOVERNMENT CHAPTER) 8. MR. OGUNJEMIYO TOYE (SECRETARY, ALL PROGRESSIVES CONGRESS PARTY, WARD 5 AKOKO SOUTH EAST LOCAL GOVERNMENT CHAPTER) RESPONDENT(S)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering The Leading Judgment): This is an Appeal against the decision of the High Court of Ondo State sitting at Akure Judicial Division, delivered by Hon. Justice S. A. Bola on the 20th August, 2020 in suit No. AK/38/2020.
On the 5th of October, 2020 parties were before this Court and were suo motu ordered by the Court to file and exchange Written Addresses on issue of whether the Court of Appeal has jurisdiction to hear and determine the appeal on Local Government Pre-Election and/or Post-Election matters.
In compliance with the order of this Court, parties filed and exchanged Written Addresses which were identified and adopted by their respective learned Counsel on the 7th day of October, 2020. Olubunmi Dada Esq. who settled the Appellant’s Written Address adopted same. A. O. Afolabi Esq. who appeared with R. S. Etuwewe Esq. adopted the 1st Respondent’s Written Address settled by him. B. A. Aderosin Esq. appeared with R. O. Ogunnoye Esq. and adopted the 2nd & 3rd Respondents’ Written Address settled by him. F. K. Salami (DCL) Ondo State MOJ appeared with O. O.
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Kunle-Morakinyo Esq. and adopted the 4th Respondent’s Written Address settled by him. All the Written Addresses were filed on the 6th and 7th October, 2020.
I painstakingly perused the entire arguments of the learned Counsel in the various Written Addresses adopted as addresses in respect of the issue of jurisdiction to hear and entertain this appeal as constituted.
Whenever the issue of jurisdiction is raised, it must be dispensed with by the Court before doing any other thing on the substantive case before it. See the cases of MADUKOLU v. NKEMDILIM (1962) LPELR – SC. 196/87; ARJAY LTD V. A.M.S LTD (2003) 7 NWLR (pt.820) 879 and SHELL PETROLEUM DEV. CO. NIG. LTD V. ISAIAH (2001) LPELR – SC. 75/1997.
The jurisdiction of Court of Appeal is conferred on it by the 1999 Constitution of the Federal Republic of Nigeria (as amended) in Sections 239 (1) & (2), 240, 241, 242, 243, 244, 245 and 246 (1) & (2) and each Section clearly specifies when appeal shall lie as of right or with the leave of the Court.
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The provision of S.246 in particular prescribed instances in which an appeal can lie as of right to the Court of Appeal and no mention of this category of appeal. Furthermore, no any legislation, either the Electoral Act 2010 (as amended) nor the relevant Electoral laws of Ondo State and the Guidelines of Ondo State Independent Electoral Commission conferring jurisdiction on this Court in respect of Local Government Election Matters. This means that, the Court of appeal is excluded from exercising powers on pre-election related matters emanating from the conduct or otherwise of election into Councillorship and Chairmanship of Local Governments. In this vein, no right of appeal to the Court of Appeal from the decision of the High Court of any State in Pre or Post-election matters would exists or can be exercised by an aggrieved party. I so hold. See UGWUH V. ATTORNEY GENERAL, EAST CENTRAL STATE (1975) 6 SC.13 @ 16 where it was held that:
“Undoubtedly all right of appeal are statutory and in order to exercise a right of appeal, it must be demonstrated by the prospective Appellant that such right has been or is conferred on him by some statute…”
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There was even no leave to appeal sought and obtained by the Appellant before appealing to the Court of Appeal to state his grievance. This Court is therefore robbed of jurisdiction to entertain the appeal as constituted. The appeal is incompetent, and this Court will not assume jurisdiction. See the cases of IKWEKI & ORS V. EBELE & ANOR (2005) LPER – 1490 (SC) and NATIONAL INSURANCE COMMISSION & ORS V. ACEN INSURANCE COMPANY LTD & ORS (2006) LPELR – 5936 (CA) @ p.12 paras. C – E. See also the cases of SALISU UBANDOMA & ANR V. SAFIYANU YAHAYA & 2 ORS, CA/A/260/2020 delivered on 4/8/2020 by Court of Appeal, Abuja Division and MR. OGUNMODEDE NURUDEEN V MR. OMOSULU OJO OLUWASEYI & 4 ORS, CA/AK/232/2020 delivered on 2nd day of October, 2020 by Court of Appeal, Akure Division. (Both unreported).
Based on the above elucidation, this Court decline jurisdiction to hear and determine this appeal as constituted.
The appeal is hereby dismissed for being incompetent.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading Ruling, in this appeal, just delivered by my learned brother, Ridwan M. Abdullahi, JCA.
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For the detailed reasons advanced in the said leading Ruling hereby adopted by me, I agree with my learned brother that this Court is robbed of jurisdiction to adjudicate upon matters arising from Local Government elections and indeed all election related matters. I accordingly strike out the appeal for incompetence and make no order for costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had a preview of the ruling of my learned brother, Ridwan M. Abdullahi, JCA just delivered. I am in total agreement with him that this Court has no jurisdiction to entertain a pre-election matter in a Local Government Election.
This appeal even though it has not been heard on its merits should be dismissed. I also dismiss this appeal for want of jurisdiction.
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Appearances:
Olubunmi Dada Esq. For Appellant(s)
O. Afolabi Esq. with him, R. S. Etuwewe Esq. for the 1st Respondent
B. A. Aderosin Esq. with him, R. O. Ogunnoye Esq. for the 2nd & 3rd Respondents
F. K. Salami Esq. with him, O. O. Kunle-Morakinyo Esq. for the 4th Respondent For Respondent(s)
