ENWENEDE SOLOMON & ANOR v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2013)LCN/6642(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/B/155C/2012
RATIO
EFFECT OF A SUCCESSFUL PLEA OF BREACH OF THE RIGHT TO FAIR HEARING ON AN APPEAL COURT PROCEEDING
Where a plea of lack of jurisdiction and/or breach of the right to fair hearing has been raised, determined and successfully upheld on appeal, the appellate court lacks the vires or jurisdictional competence to proceed to determine the remaining issues on the merits thereof.
See also ARAKA v. EJEAGWU (2000) FWLR (Pt. 36) 830; (2000) 15 (2000) NWLR (Pt. 692) 684; EWO v. ANI (2004) 3 NWLR (Pt. 826) 592; NWAKANMA v. OJUKWU (2007) All FWLR (Pt. 395) 504; DIDE v. SELEILETIMIBI (2008) 15 NWLR (Pt. 710). Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
EFFECT OF A TRIBUNAL/COURT ACTING ULTRA VIRES
The law is settled that where a particular tribunal (or court, as in the case maybe) has been specifically assigned by law to determine a question, it is not the business of another tribunal (or court) which lacks express powers to determine such questions to venture into the determination of the questions. See per Musdapher, J.C.A. (as he then was) @ 565 paragraphs C – H. See also IKUOGBOGUN v. RABIU (1989) 4 NWLR (Pt. 114) 216; ONUOHA v. OKAFOR (1983) 2 SCNLR 244; BALONWU v. CHINYELU (1991) 4 NWLR (Pt. 183) 30. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. ENWENEDE SOLOMON
2. VICTOR ETERIGHO Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. VICTOR NWABUEZE OBI Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the leading Judgment): This is an appeal against the Ruling of the High Court of Justice of Delta State, Asaba Judicial Division, which was delivered on February 21, 2012 by G. B. Abiki Okolosi, J. in Charge No. A/ICPC/3C/2010. By the said Ruling, the lower court came to the conclusion thus:
In the final result, after a careful review of all the arguments canvassed for and against the motion on notice and the preliminary objection both seeking to quash this charge on the ground of jurisdiction, I hold that there is no merit in the application and accordingly overrule the objections to the charge. I find and hold that this court, being a designated court to hear corruption cases under S. 61 (3) of the ICPC Act, 2000 has the jurisdiction to try the offences charged.
In consequence, I dismiss the Motion on Notice filed on behalf of the 1st Accused Person/Applicant.
I also overrule the objection taken to the charge by 2nd and 3rd Accused persons/Applicants as I find no merit in the grounds canvassed.
Hon. Justice G. B. Briki-Okolosi
(Judge)
21/2/2012
Thus, the appeal is against the Ruling of the lower court in question. The record of appeal having been compiled and transmitted to this court, the learned counsel endeavoured to file the respective briefs of argument thereof. The Appellants’ brief in particular, was filed on 19/3/13. The 1st Respondent’s brief was filed on 24/4/13. The Appellants’ Reply Brief was equally filed on 20/5/13.
The Appellants’ brief spans a total of 22 pages. At pages 3 – 4 of the said brief thereof, the Appellants have raised the following three issues for determination:
1. Whether the prior leave/consent or direction of the Judge of Delta State is required before the charge with No. A/ICPC/3c/2010 can be preferred against the Appellants? If the answer to the above is in the affirmative whether the letter dated 19/08/2010 with reference No. ICPC/P/SS/459A/2008 pursuant to which the proceeding at the lower court was commenced sufficiently comply with Section 340 (2) (b) of the Delta State Criminal Procedure Laws, Cap C22?
(Grounds 2, and 5 the Grounds of Appeal in the Amended Notice of Appeal dated 11th of March, 2013.
2. If the answer to the above is in the affirmative, whether the objection could be brought after plea has been taken?
(Grounds 3 of the Grounds of Appeal in the Amended Notice of Appeal dated 11th of March, 2013.
3. Whether the lower court had jurisdiction to preside over the charge in view of the fact that the alleged offences took place in the course of an Election and in view of the provisions of Sections 132 (1)(b)(c) and 129 (1)(a) of the Delta State Local Government Law 2004, Cap D27, Laws of Delta State, 2008?
If the answer to the above is in the affirmative, whether the proof of Evidence disclosed a prima facie case against the Appellants?
(Grounds 1 and 4 of the Grounds of Appeal in the Amended Notice of Appeal dated 11th of March, 2013.
Both Issues 1 & 2 were argued together at pages 4 – 9 of the Appellants’ brief. It was in a nutshell submitted on both issues that the prior leave (consent) of the lower court was required before any charge or information on an indictable offence can be filed. That (leave of court) is a condition precedent to the institution of criminal proceeding. And failure of the prosecution to obtain leave in the instant case in accordance with Section 340 (2) (b) of the Delta State Criminal Procedure Laws CAP C22, renders the charge incompetent and void ab initio. Thus, the charge is liable to be quashed. See OKAFOR v. STATE (1976) 10 NSCC 259 @ 261 per Idigbe, JSC; IR VS. ZIK PRESS LTD 12 WACA 202; AG FEDERATION v. ISONG (1986) 1 QLRN 73.
Further submitted, that Section 304 (2) of CAP 31 under consideration in OKAFOR v. STATE (Supra), is in pari materia with Section 340 (2) (b) of the Criminal Procedure Laws (CPL) 2008 CAP C22 Laws of Delta State. That, by Section 77 (b) (i) (CPL), criminal proceedings may be instituted in the High Court.
It was contended, that the word ‘shall’ used in Section 340 (2) (b) CPL (Supra), imports a duty on any person preferring or bringing such an information to comply with the provision. See BAMAIYI v. A.G. FED. (2001) 7 SC (Pt. 11) 62 @ 78. Per Karibi-Whyte, JSC; UNTHMB v. NNOLI (1994) 8 NWLR (Pt. 363) 376. ACHIMEKU v. ISHAGBA (1988) 4 NWLR (Pt. 89) 411.
A pertinent question was raised at page 6, paragraph 2.06 Appellants brief as to whether in the light of the Supreme Court decision in ABACHA v. STATE (2002) 11 NWLR (Pt. 779) 437, the said letter dated 19/08/2010 accompanied by proof of evidence and information presented at the lower court, can be taken as an application for leave under Section 340 (2) (b) of the CPL CAP C22.
Allegedly, Section 174 (1) of the 1999 Constitution referred in the said letter only gives the Attorney-General of the Federation the power to institute and undertake criminal proceedings against any person this is also true of Section 26(2) of ICPC Act 2000.
Thus, the said letter cannot by any stretch of imagination be taken as an application for consent to prefer the charge (information). The court is urged to so hold.
On effect of non-compliance with Section 340 (2) (b) of the CPL (Supra), it was argued that the information shall be liable to be quashed. See Section 340 (3) CPL (Supra); OKAFOR v. STATE (Supra); MADUKOLU v. NKEMDILIM (1962) 2 NSCC 374 @ 379 – 380; MCFOY v. UAC (1962) AC 152, 160; UNIABUJA v. OLOZE (1996) 4 NWLR (Pt. 445) 706, 723.
Thus, the court has been urged to resolve issues 1 & 2 in favour of the Appellants.
On Issues No. 3, it was submitted, inter alia, that given the totality of all the allegations as contained in the statements, particulars of offence and the proof of evidence in support of the charge sheet, the lower court lacked the jurisdiction to put them to trial because they are all offences allegedly committed during election and which had been appropriately made a ground for petitioning pursuant to Sections 132 (1) (B) & (C); 129 (1) of Delta State Local Government Law of 2004, CAP D27 Laws of Delta State.
Further submitted, that it’s clear from the facts of the charge, as contained in the statement and particulars of offence etc, that all the allegations against the Appellants border on irregularities as envisaged in Section 132 (1) (Supra).
Thus, it’s the (Local Government) Election Tribunal set up under Section 129 (1) (Supra) that has jurisdiction to adjudicate on the allegations as contained in the charge and not the lower court. See OBI-UDU v. DUKE (2006) 21 WRN 113 @ 159 lines 10 – 30; OBASANJO v. YUSUF (2005) 20 WRN 1 @ 49, lines 45 – 20; AIKULOLA v. AKOGWU (2006) 41 WRN 29 @ 82 – 83 lines 40 – 30; SIKANTORO v. DANTORO (2004) 5 SC (Pt. 2) 7 @ 21 lines 12 – 18, et al.
It was argued that the conduct of the election and the alleged offences of the Appellants being in respect of the Local Government Election in Delta State Local Government 2004 and not by the ICPC Act.
Equally argued, that there’s no offence, known to law, disclosed by the Respondent in this charge against the Appellants. See KOMI v. THE STATE (1986) 3 NWLR (Pt. 28) 340, 358 et al.
Conclusively, it was contended, that there is no nexus at all between the offence in the charge sheet and the fact in support of same as of evidence. None of the Appellants’ names featured in any of the deposition of the potential witnesses. The court has thus been urged upon to equally resolve the Issue No. 3 in favour of the Appellants. On the whole, the court was urged to accordingly allow the appeal.
On the part thereof, the Respondent has raised a total of four issues in the said brief thereof, viz:
1. Whether prosecution (Respondent) did not comply with the provisions of Section 340(2)(b) Criminal Procedure Law, Cap 45 Laws of Delta State 2008 in initiating the criminal trial resulting in this appeal;
2. Whether the preliminary objection and motion to quash the charges against the 2nd & 3rd accused persons are competent and sustainable in law considering the time they were raised;
3. Whether this Honourable court lacks the jurisdiction to entertain this matter;
4. Whether the statement of offences/proof of evidence attached to the charge sheet discloses a prima facie case against the accused persons and meets up with the requirements of the law or not.
The argument on Issue No. 1 is contained at pages 3 – 7 of the said brief thereof. It was submitted, inter alia, that in compliance with Section 340 (1) & (2) of the CPL CAP. 45 Laws of Delta State, that the Registrar accepted the information after he ensured that the requirements have been complied with. To evidence same, he stamped and signed process and assigned same a number before passing the file onto the Chief Judge of Delta State for her consent ands (sic) or direction – please see Exhibit “RAR”.
Further submitted that the Chief Judge accordingly gave required consent and thereafter directed that the matter be tried by Hon. Justice G. B. Briki-Okolosi, the designated anti-corruption Judge in Delta State.
That, neither Section 340 (2)(b) nor the forms of CPL, CAP 45 Laws of Delta State provide for the form or content of the application for the consent and/or direction of the Judge to file an information against the accused.
Thus, in the absence of any provision stating the form and content of the application for consent in Delta State, the application dated 19/8/2010 Reference No. ICPC/P/SS/459A/2008 met them with the requirements of Section 340(2)(b) of CPL CAP 45 (Supra). The court is urged to so hold and discountenance the objection and accordingly resolve issue in favour of the Respondent.
On Issue No. 2, it was submitted that the objection of Appellants was belated as rightly joined by the lower court. See Section 167 CPL (Supra). That, the CPL being the law regulating the procedure for criminal trials in the country has to be obeyed. See MUSA v. STATE (1982) 7 SC 118; BAMAIYI v. STATE (2006) 12 NWLR (Pt. 994) 221 @ 240.
It was argued, that the application seeking to quash the charges incompetent and belated. It is a misconception to refer to the Delta State Government Law 2004, when the condition precedent for coming into effect thereof was never fulfilled. See INEC v. AC (2009) 2 NWLR (Pt. 1126) 524, 588 – 589. AGBAKOBA v. INEC (2008) 12 SC (Pt. 111) 171 @ 205; ODEDO v. INEC (2008) 7 SC 25 @ 60 para. 20.
That, the complainant and ICPC were concerned about how the 3rd Accused Person was sworn in to hold elective position for which no election was conducted.
The court is urged to resolve Issue No. 3 in favour of the Respondent
On Issue No. 4, the court is urged to hold that the statement of offences/proof of evidence attached to the charge disclose a prima facie case against the 2nd and 3rd Accused persons and same meet up, with the requirement of the law. The court is urged to so hold, and resolve same in favour of the Respondent.
Conclusively, the court was urged to refuse the appeal.
By the said reply brief thereof, the Appellants urged upon the court to discountenance the Respondents’ submissions, allow the appeal, and accordingly quash the charge of the lower court.
I have amply considered the nature and circumstances surrounding this appeal, the submissions of the learned counsel contained in their respective briefs vis-‘a-vis the record of appeal.
It is rather obvious from the foregoing submissions of the respective learned counsel vis-‘a-vis the record of appeal, that the fulcrum of the instant appeal revolves around the issue of jurisdiction. That’s to say, the competence of the lower court to entertain and determine the information (charge) preferred against the Appellants has been questioned.
Indeed it’s a well founded doctrine, that where an action is not competent or properly instituted, the court is devoid of jurisdiction to entertain and determine same. Thus, it’s most imperative that the issue of jurisdiction be dealt with, first and foremost, before determining the action on the merits. The wisdom inherent in that fundamental doctrine is not at all far-fetched. As was reiteratively held by this court, not long ago –
The issue of jurisdiction is not merely important, but very fundamental. Thus, it ought to be accorded the highest degree of consideration and priority over and above any other issue. This is definitely so, (because) where a court embarks upon a decision in any given matter without the requisite jurisdiction, that decision is null and void and liable to be set aside. The issue of jurisdiction can be raised at any stage of the trial and at any point in time, either at the trial or on appeal, in the Court of Appeal or Supreme Court. Because of the crucial and fundamental nature thereof, the issue (of jurisdiction) need not necessarily be raised suo motu by parties alone. It can be raised even by the trial or appellate court itself. See OKEKE v. SECURITIES AND SECURITIES EXCHANGE COMMISSION (2013) AII FWLR (Pt. 677) 731 @ 758 – 759 paragraphs E – B, per Saulawa, J.C.A. See also LABIYI v. ANRETIOLA (1992) 2 NWLR (Pt. 258) 139; KOTOYE v. NKEMDILIM (1962) 2 SCNLR 341; BUKAR MANDARA v. AG FED (1984) 1 SCNLR 311; OFIA v. EJEM (2006) 11 NWLR (Pt. 992) 652 @ 663 per Onnoghen, JSC.
Of the three issues raised by the Appellants in the brief thereof, Issue 3 is most instructive. That issue (especially the first segment thereof), raises the fundamental question of jurisdiction, thus:
3) Whether the lower court had jurisdiction to preside over the charge in view of the fact that the alleged offences took place in the course of an election and in view of the provisions of Sections 132(1)(b)(c) and 129(1) of the Delta State Local Government Law 2004, Cap D27 Laws of Delta State, 2008.
The various criminal allegations vide the information (charge) preferred against the Appellants are contained in pages 2 – 5 of the Record of Appeal. All in all, there are 10 counts to the respective effect, thus:
(i) Statement of offence – 1st count Criminal conspiracy contrary to Section 26 (1) (c) and punishable under Section 25 (1) (a)(b) of the Corrupt Practices and Other Related Offences Act 2000.
Particulars of offence
Victor Nwabueze Obi (m), Chief Electoral Officer of the Delta State Independent Electoral Commission (DSIEC); Enwenede Solomon (m), the Education Secretary, Isoko South Local Government, Delta State; and Victor Eterigho (m), Councillor sworn in for Uzere 06 Ward of Isoko South Local Government Area, Delta State, did conspire amongst yourselves in May, 2008 at the Oleh, Delta State to make false statement to the effect that Councillorship election was conducted at Uzere 06 Ward of Isoko South Local Government Area, Delta State on the 10th of May, 2008 and that one Victor Eterigho of the Peoples Democratic Party (PDP) was the winner of the said election when no such Councillorship election took place.
(ii) Statement of offence – 2nd count
Particulars of offence
…
(iii) Statement of offence – 3rd count
Particulars of offence
…
(iv) Statement of offence – 4th count
Particulars of offence
…
(v) Statement of offence – 5th count
Particulars of offence
…
(vi) Statement of offence – 6th count
Particulars of offence
…
(vii) Statement of offence – 7th count
Particulars of offence
…
(viii) Statement of offence – 8th count
Particulars of offence
…
(ix) Statement of offence – 9th count
Particulars of offence
…
(x) Statement of offence – 10th count
Particulars of offence
…
As copiously alluded to above, it’s evident that all the allegations contained in the ten counts charge (information) filed in the lower court against the Appellants (expressly) relate to offences allegedly perpetrated (committed) by them during the conduct of Local Government Election in Isoko South Local Government Council, Delta State on 10/5/08. Those allegations had been made grounds for filing an election petition pursuant to the provisions of Sections 132 (1) (b) & (c) and 129 (1) of Delta State Local Government Law CAP. D27 Laws of Delta State, 2004. And by virtue of the provisions of the said Law –
132. (1) An election may be questioned on the following ground:
(b) that the election was voided by corrupt practices, irregularities or offences against this Law;
Or
(c) that the Respondent was not duly elected by a majority of valid or lawful votes cast at the election;
In the same vein, the provision of Section 129 of the said Law is to the effect thus –
129. (1) There shall be established in the state at least six and at most (sic) mine election tribunals to be known as Local Government Election Tribunals (in this Law referred to individually as an “Election Tribunal”) which shall to the exclusion of any other Tribunal or Court, have original jurisdiction to hear and determine –
(a) Election Petitions as to whether a person has been validly elected as Chairman or Councilor of a Local Government Council.
Afortiorari, the provisions of Sections 129 – 135 of the said Delta State Local Government Law expressly relate to the powers of the Local Government Election Tribunal to entertain and determine questions regarding Local Government Elections in Delta State. Under Section 135 of the Local Government Law (Supra), it’s provided, inter alia, that –
“135. …appeals arising from out of the petitions shall be those set out in schedule 5 to this law”
And by virtue of Schedule 5 to the Local Government Law (Supra) –
2. An election petition shall be heard and determined by an Election Tribunal and an appeal arising from the decision of the Election Tribunal on an election petition shall be heard and determined by the Election Appeal Tribunal to be constituted by the Chief Judge.
Contrariwise, Sections 107 – 128 of the Local Government Law (Supra) specifically relate to various (Local Government) election offences. Most especially, Section 128 provides for trial of election offences, thus:
128 – Trial of offence
(1) An offence committed under this part of this Law shall be triable in a Magistrates Court of the State
(2) A prosecution under this part of this Law shall be undertaken by the Attorney-General of the State in which the offence is committed (sic) or by such officer in the Ministry of Justice of that State or by an officer of the Nigeria Police Force.
Arguably, the Local Government Law CAP D27, Laws of Delta State, 2004 (Supra) was duly enacted by the Delta State House of Assembly pursuant to the unequivocal provisions of Section 7 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which is to the effect, thus:
7. The system of Local Government by democratically elected Local Government Councils is under this constitution guaranteed; and accordingly, the Government of every state shall subject to section of this constitution, ensure their existence under a law which provides for the establishment structure composition, finance and functions of such councils.
What’s more, under the Second Schedule, Part II (THE CONCURRENT LEGISLATIVE LIST) of the 1999 Constitution, it is provided thus:
12. Nothing in II hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the National Assembly.
Ironically, it is not the case of the Respondent that the Delta State Local Government Law CAP D27, 2004 (Supra) or any of the provisions thereof has contravened, or is in conflict with the 1999 Constitution (Supra).
Thus, flowing from the foregoing postulations, it’s rather obvious that the lower court has no jurisdiction to entertain, try and adjudicate upon the information (charge) filed herein by the Respondent. It is a well settled principle, that a litigant, no matter how eminent, cannot confer jurisdiction upon court in the absence of any statutory provision clearly conferred thereupon by the 1999 Constitution or a statute. See JIKAN TORO v. DANTORO (2004) 5 SC (Pt. 2) 1 @ 21 line 12 – 18.
In the instant case, as alluded to above, the Delta State Local Government Law (Supra) has, by the provision of Sections 107 – 128 thereof, conferred special powers on Magistrate’s courts in the state to try (Local Government) electoral offences. Thus, the lower court (High Court) lacks the jurisdictional competence to try the offences prescribed under Sections 107 – 128 of the Delta State Local Government Law (Supra). Undoubtedly, the lower court’s jurisdiction is as regards appeals from decisions of the trial Magistrate’s Courts in the state. And I so hold. See Sections 2, 64, 65, 66, 67 & 68 of the Magistrate’s Court Law, 2004 (Supra).
Afortiorari, the appellate and supervisory power of the lower court over and above the Magistrate’s Courts et al, is not at all in doubt. Undoubtedly, by virtue of the provision of Sections 22 and 24 of the High Court Laws of Delta State Volume 3, 2006 –
22 (1) The High Court shall have appellate jurisdiction to hear and determine all appeals from the decisions of Magistrate’s courts in civil and criminal causes and matters given in the exercise of original jurisdiction of the said courts as well as cases stated by Magistrates in accordance with the provisions of this law and of any enactment relating thereto.
(2) The High Court shall have such other appellate jurisdiction as may be vested in it by any Act.
In the same vein, the High Court Law (Supra) is most unequivocal to the effect that –
“(24) The High Court shall have powers of revision in respect of all proceedings in Magistrate’s courts in accordance with the provisions of any law relating thereto.”
Indisputably, the genesis of the powers of the lower court (and indeed all High Courts, Federal or State), is not merely traceable to the High Court Law (Supra) or the Magistrate’s Courts Law (Supra). The appellate and supervisory powers of the lower court are indeed traceable to the Grund Norm itself – the Constitution of the Federal Republic of Nigeria, 1999, as amended. See Section 272 (1) & (2) of the 1999 Constitution (Supra).
272 (1) Subject to the provisions of section 251 and other provisions of this constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligations or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.
The ten counts of the charge were allegedly contrary to Sections 15 (a) (b) & (c), 25 (1) (a) (b); 26(1) (c) of ICPC Act, 2000 and 104 of the Criminal Code Act CAP. C38 LFN 2004, respectively. I have critically perused the volume of the ICPC Act, 2000. All in all, the Act is composed of 71 Sections. Of the 71 Sections that constitute the Act, Section 2 thereof is most instructive. The said Section 2 provides for the interpretations of words and terms used therein. Strangely, however, the term ‘court’ is conspicuously missing from the interpretation clause. However, Section 26 (1) of the Act (Supra) provides thus –
26 (1) Any person who –
(a) attempts to commit any offence under this Act;
(b) does any act preparatory to or in furtherance of the commission of any offence under this Act; or
(c) abets or is engaged in a criminal conspiracy to commit any offence under this Act;
(d) commits any offence under this Act; shall be guilty of an offence and shall on conviction be liable to the punishment provided for such offence.
(3) Prosecution for an offence under this Act shall be initiated by the Attorney-General of the Federation, or any person or authority to whom we shall delegate his authority, in any superior court of record so designated by the Chief Judge of a State or the Chief Judge of the Federal Capital Territory Abuja under Section 60 (3) of this Act; and every prosecution for an offence under this Act or any other Law prohibiting bribery, corruption, fraud or any other related offence shall be deemed to be initiated by the Attorney-General of the Federation.
Thus, it would be strange, in my considered view, to proceed to charge the Appellants under the ICPC Act (Supra) in view of the unequivocal and express provisions of the Delta State Local Government Law, CAP. D27 Laws of Delta State 2006 (Supra).
Indeed, it’s a long settled principle, that where a particular court or tribunal has been specifically conferred with a special power to adjudicate upon a matter or action, as in the instant case, it’s not the business of any other court or tribunal which lacks such express power to arrogate to itself the power to entertain such a matter or action. See ENAGI v. INUWA (1992) 3 NWLR (Pt. 231) 548 @ 565. OBI v. INEC (2007) LPELR – 9263 – (CA) @ 92 – 93 paragraphs G – B; All FWLR (Pt. 356) 741 @ 771.
As painstakingly alluded to above, the criminal allegations arose from the conduct of the Local Government Election in question. Thus, the provisions of the Local Government Law (Supra) pertaining to elections, especially Sections 107 – 128 thereof ought to be strictly applied. See NJO v. YUSSOF (2005) 20 WRN 1 @ 86 LINES 30 – 35.
Notwithstanding the fact that the information (charge) was filed against the Appellants pursuant to the ICPC Act, I am of the considered view that the Magistrate’s court of Delta State has the exclusive jurisdiction under the Local Government Law CAP D27, 2004 (Supra) to try and determine the case in question. See UTIH v. ONONYIVWE (1991) 1 SC (Pt. 1) 61; OBI v. INEC (2007) SC 268 @ 301 lines 5 – 20.
It is trite, that the court cannot condone or ignore an illegality in any matter before it. However, with a view to exercising the jurisdiction thereof, the court has an onerous duty to be properly seized of the matter. See MADUKOLA v. NKEMDILIM (2001) 46 WRN 1; (1962) 1 All NLR 587 @ 594; OBASANJO v. YUSUF (2005) 20 WRN (Vol. 2) 1.
Most particularly, in the case of OBASANJO v. YUSUF (Supra), the Supreme Court was recorded to have aptly reiterated the fundamental principle, thus:
Jurisdiction is a very hard matter of law which is donated by the constitution and the enabling statute. It is also a very sensitive matter in the judicial process. Considering its very hard and sensitive nature, courts of law must always bow to the provisions of the constitution and the enabling statute. On no account should we remove from a court which has jurisdiction to hear a matter to another court which has no jurisdiction to hear it. Per Niki Tobi, JSC @ 90 lines 45 – 5.
In the instant case, it’s rather obvious, that it’s the Magistrate’s Court that has the express original jurisdiction to try the instant case by virtue of the provisions of the Delta State Local Government CAP. D27 Laws of Delta State, 2006 (Supra). Contrariwise, the lower court is duly conferred with dual appellate and supervisory powers to entertain appeals from the decisions of the Magistrate’s Court by virtue of the provisions of Section 272 (2) of the 1999 Constitution as amended; Sections 22 & 24 of the High Court Law, CAP. H3 (Supra); and Delta State Local Government Law CAP. D27 (Supra), respectively.
Thus, flowing from the foregoing far-reaching postulation, it’s rather obvious that the lower court is devoid of jurisdiction to try and determine the instant case, in view of the express and unequivocal provisions of the Delta State Local Government Law (Supra), the Magistrate’s Courts Law (Supra) vis-‘a-vis the provisions of Section 272 (2) of the 1999 Constitution as amended. See ENAGI v. INUWA (Supra), wherein this court reiterated thus:
The law is settled that where a particular tribunal (or court, as in the case maybe) has been specifically assigned by law to determine a question, it is not the business of another tribunal (or court) which lacks express powers to determine such questions to venture into the determination of the questions. See per Musdapher, J.C.A. (as he then was) @ 565 paragraphs C – H. See also IKUOGBOGUN v. RABIU (1989) 4 NWLR (Pt. 114) 216; ONUOHA v. OKAFOR (1983) 2 SCNLR 244; BALONWU v. CHINYELU (1991) 4 NWLR (Pt. 183) 30.
In the circumstance, the answer to Issue No. 3 is most inevitably in the negative, and same is hereby resolved in favour of the Appellants.
Now, having resolved the 3rd Issue in favour of the Appellants, there is no gainsaying the fact that the remaining Issues 1 & 2 have become superfluous and rather spent. In my considered view, it would amount to a sheer speculative and wasteful academic exercise for me to proceed to determine the said remaining two issues on the merits. Thus, the court lacks the fundamental jurisdictional competence to proceed to determine the remaining two Issues in question. See OKEKE v. SECURITIES AND EXCHANGE COMMISSION (2013) AII FWLR (Pt. 687) 731 @ 761 paragraphs B – D thus:
Where a plea of lack of jurisdiction and/or breach of the right to fair hearing has been raised, determined and successfully upheld on appeal, the appellate court lacks the vires or jurisdictional competence to proceed to determine the remaining issues on the merits thereof.
See also ARAKA v. EJEAGWU (2000) FWLR (Pt. 36) 830; (2000) 15 (2000) NWLR (Pt. 692) 684; EWO v. ANI (2004) 3 NWLR (Pt. 826) 592; NWAKANMA v. OJUKWU (2007) All FWLR (Pt. 395) 504; DIDE v. SELEILETIMIBI (2008) 15 NWLR (Pt. 710).
Before putting the last dot to this Judgment, I have deemed it aptly expedient to reiterate the notorious fact that corruption is not an exclusive preserve of Nigeria, or the West African sub-region. Indeed, corruption is a global phenomenon. This notorious fact is underscored by the Corruption Perception Index (CPI) published annually by the Transparency International (TI), to the effect that no country on earth has succeeded in attaining a perfect score. With particular regard to the Independent Corrupt Practices and Other Related Matters Commission’s (ICPC) concerted efforts to fight corruption in Nigeria, it has been creditably documented, thus:
About five thousand, seven hundred and eighty one (5,781) number of cases of corruption were reported to the ICPC from 2006 to 2012 …
From Figure 4.2, it can be deduced that all the identified types of reported cases of corruption increased with time, but later reduced in year 2012. More cases were reported in 2010 with abandoned or uncompleted cases being the most frequent. However, in 2012, the number of reported cases dropped. Thus, corrupt practices and the report of same to relevant agencies appear to be seasonal … 2010 has the highest number of reported cases, while 2012 has the lowest. The significant point to note about year 2010 is that it was the year preceding 2011 general elections. In
2011, reported cases of corruption dropped in number. Therefore, election periods and political activities seem to be factors affecting level and type of corruption inhibiting development in Nigeria. Political opponents might want to undo each other by filing petition against one another at the anti-graft agencies so that they could have upper hand at the poll. The graphical presentation is as shown 4.2. See SHARON O. OGIRI-OKPE: CORRUPTION AND NATIONAL DEVELOPMENT: A STUDY OF CORRUPTION CASES REPORTED TO ICPC (2006 – 2012)
Hence, having come to the inevitable conclusion that the appeal is meritorious, it is hereby allowed by me. Consequently, the Ruling of the High Court of Delta State, Asaba Judicial Division, which was delivered on 21/02/12 by G. B. Briki-Okolosi, J. is hereby set aside.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in draft the lead judgment prepared by my learned brother Saulawa, J.C.A.; and I agree that the appeal is meritorious. Therefore, I too allow the appeal and hereby set aside the ruling of the lower court delivered on 21/02/12.
TOM SHAIBU YAKUBU, J.C.A.: I was opportune to have read before now, the draft of the judgment just delivered by my Lord, Hon. Justice I. M. M. SAULAWA, J.C.A. I am fully satisfied with the exhaustive and lucid resolution of the issues thrown up for determination in the appeal, by his Lordship, such that he has left no space for me, to add anything more useful to his reasoning and conclusion thereof.
The appeal has merits and it is also allowed by me. Hence, the ruling of G. B. Briki-Okolosi, J., in re-charge No. A/ICPC/3C/2010, which was delivered on 21st February, 2012 is set aside.
Appearances
A. M. KOTOYEFor Appellant
AND
ENOSA OMOGHIBO, Principal Legal Officer ICPC,For Respondent
