EVANS AMAECHI NNADI v. DR. HERBERT OJI & ORS.
(2010)LCN/3694(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of April, 2010
CA/E/EPT/08/2009
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
Issue of jurisdiction is very fundamental it being the threshold or live wire of any case. In the case of Adeniyi v. Oroja (1992) 4 NWLR(pt. 235) 322, Niki Tobi, JCA (as he then was) had this to say about “jurisdiction” on page 339.
“Jurisdiction is the main stay of any court, almost like the oil industry in the Nigerian economy, although the analogy does not quite neatly fit in, as there are other industries which assist the oil industry in the economy. Jurisdiction is the main pillar upon which the entire case stands. Filing of all action in a court of law presupposes that the court has jurisdiction. But once it is shown by the adverse party that the court has no jurisdiction, the foundation of the case will not only shake but will also crash or crumble. The parties cannot be heard on the merit of the matter. That is the end of the litigation, unless the action if competent is filed in a court of competent jurisdiction, in which case it is resuscitated de novo.” PER AMIRU SANUSI, J.C.A.
JURISDICTION: WHAT CONFERS JURISDICTION ON A COURT
It is my humble view therefore that jurisdiction of court is not granted as a matter of course or procedure. Courts are always conferred jurisdiction by the statute or law. Courts in this country derive their jurisdiction from any of the following sources:
(i) the Constitution; or
(ii) the enabling statues setting them up; or
(iii) other existing statutes which contain random provisions conferring jurisdiction on them or lack of jurisdiction of certain courts.
To buttress this point further, the Supreme Court in the case of Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 248 held at page 277 held that the jurisdiction of a court is donated by statute including the constitution and a court cannot add or subtract from the provisions of a statute. To my mind, no court can confer jurisdiction to itself and exercise same unless it is so conferred with same by law. A quick example on that which readily comes to ones mind is the legal Practitioner Disciplinary Committee decision which in its relevant statute says that the Supreme Court exercises appellate jurisdiction on same notwithstanding the provisions of the constitution. The Federal High Court and Court of Appeal can therefore not be heard complaining that they are not conferred with jurisdiction over the decision of the Committee since the statute gives appellate jurisdiction to the Supreme Court only and no more. PER AMIRU SANUSI, J.C.A.
COURT: JURISDICTION OF THE COURT OF APPEAL
Now coming to the jurisdiction of this court, permit me to say My Lords, that the jurisdiction of the Court of Appeal is governed by the provisions of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria which provided thus:-
Section 240 of the 1999 Constitution States:-
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from the decisions of court martial or other tribunal as may be prescribed by an Act of the National Assembly.”
It can be seen clearly from the above provisions therefore, that the said constitutional provisions simply provide that the appellate jurisdiction conferred to this court by the said provisions is simply limited to appeals from courts or tribunal as may be prescribed by the National Assembly. I have looked in vain at the Court of Appeal Act 2004 to see if any other additional appellate jurisdiction is conferred on this court.
The Constitution of the Federal Republic of Nigeria by its Section 246(1) confers this Court right to hear appeal as of right from the decision of Code of Conduct Tribunal or Election Petition Tribunals. The Section reads thus:
“Section 246 (1) – An appeal to the Court of Appeal shall lie as of right from:
(a) decisions of the Code of Conduct Tribunal established in the fifth Schedule to this Constitution.
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
(ii) any person has been validly elected to the Office of Governor or Deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any court of law or tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
From the above constitutional provisions, it can be discerned, that only the Constitution or Act of the National Assembly can confer jurisdiction to the Court of Appeal on all matters especially on election matters. Section 246 of the same constitution clearly specified the nature of election petition matters that can be heard and determined by the Court of Appeal and from which court of tribunal. The said provisions nowhere stated or conferred this court with additional jurisdiction to entertain and determine election appeals or election matters or decision from High Court of a State sitting in its appellate jurisdiction on decisions of Local Government Council Election Tribunal established under laws of the State. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
Between
EVANS AMAECHI NNADI Appellant(s)
AND
1. DR. HERBERT OJI
2. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & 250 ORS. Respondent(s)
AMIRU SANUSI, J.C.A. (DELIVERING THE RULING): A motion dated the 19th day of October, 2009 was filed on the same day before this Court by the applicant wherein the following reliefs were prayed. The reliefs are:
(1) An order for extension of time within which the Petitioner/Applicant may seek leave to appeal against the judgment/Ruling of Hon. Justice A.R . Ozoemena of the High Court of Enugu State dated 11th March 2009 delivered in the High Court Appeal No, E/15A/2008 – Evangelist Amaechi Nnadi vs. Dr. Herbert Oji and 250 others annexed as exhibit “AA” to this application.
(2) An order granting leave to the Petitioner/Applicant to appeal to the Court of Appeal against the said Judgment delivered by the Enugu State High Court on 11th of March 2009 in the High Court Appeal No. E/15A/2008.
(3) An order for extension of time within which the Petitioner/Applicant may appeal to the Court of Appeal against the said judgment/Ruling delivered by the Enugu State High Court on 11th of March 2009 in Enugu High Court Appeal No. E/15A/2008 in terms of Notice of Appeal annexed to the affidavit in support of this application as exhibit “BB”.
(4) An order deeming the Notice and grounds of appeal dated 23, 11th March 2001 and filed by the Petitioner/Appellant on 24/3/2009 in the court below and served on the Respondents as properly filed and served.
The motion is supported by an affidavit of twelve paragraphs sworn to by one Miss Ifeoma Nweke, a secretary to the chambers of the applicant’s counsel. Annexed to the motion are the following exhibits/documents:-
1. The Ruling of the lower court the applicant intended to appeal against; marked Exh. AA.
2. Notice of Appeal against the Ruling of the lower court dated 23rd March 2009.
It needs to be stated here that upon being served with an undated counter-affidavit by the 1st Respondent herein filed on 30/11/2009, the applicant responded to that counter-affidavit by filing a Further Affidavit of 13 paragraphs on 2/2/2010 as reply to the 1st Respondent’s counter affidavit earlier tiled on 30/11/2009.
As I said above the 1st Respondent filed a counter affidavit of 22 paragraphs in response to the applicant’s motion on notice. The 2nd to 250th respondents did not oppose the first prayer. On the 4th of February 2010 this court set to hear the motion on notice. Mr. Vincent Chieyine of learned counsel for the applicant informed the court that his motion on notice was brought pursuant to Section 241 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria; Section 15 of the Court of Appeal Act 2004, Order 7 Rules 4 and 10; Order 19 Rule 3(1) and (2) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of the court. The learned counsel submitted that the delay in bringing his motion was due to the inadvertence of counsel which caused the delay in seeking leave to file the appeal much earlier, adding that his Notice of Appeal was however filed within time. He referred to the case of National Inland Waterways Authority v. Shell Petroleum Development Company of Nig. Ltd. (2008) All FWLR (Pt.433) 1402 at 1416. He said the failure to obtain leave is a procedural irregularity and the Supreme Court always encouraged courts to hear and determine matter on their merit.
On the counter affidavit filed by the learned counsel for the 1st respondent dated and filed on 30/11/2009, the learned applicant’s counsel submitted that Paragraphs 12 to 21 of that motion relate to another motion on injunction which is not related to this instant application.
The learned applicant’s counsel however, conceded to the fact that Paragraph 11 of the Counter affidavit in question raised or challenged the jurisdiction of this court to hear and determine the instant application. He submitted that this court has jurisdiction to entertain and determine the application by virtue of the provisions of Paragraph 5(1) of the 6th Schedule to the Local Government Law, Cap 109 of the Laws of Enugu State. The learned counsel for the applicant however agreed that Paragraph 5 (2) of the said Schedule to the said law merely states that appeals from the decision of the Local Government Election Tribunal Enugu State lies to the High Court and no more. The learned applicant’s counsel further submitted that the provisions of Section 272(1) of the 1999 Constitution makes general provisions on appeals to the Court of Appeal from the decision of the High Court. He stated further that by virtue of the provisions of Section 272(1) of the same constitution the High Court is given supervisory powers in civil proceedings which according to him also include election matters, He added that if the legislators had meant that appeal on local government elections should terminate at the High court, it would have stated so in the legislation under reference, He said the law nowhere stated that High Court has the final jurisdiction. Learned applicant’s counsel argued that since by Section 272(2) of the 1999 Constitution the High Court has power to exercise its supervisory jurisdiction, hence Section 240 of the same constitution has conferred the Court of Appeal the jurisdiction to entertain, hear and determine appeals from the decisions of the High Court on Local government elections. According to him, by virtue of the provisions of Section 242 Constitution any party in such elections can seek leave to appeal from the tribunal to the High Court or from customary court to the High Court and by virtue or the provisions of Section 246 of the same 1999 Constitution, the Court of Appeal is final court on this matter.
Learned counsel finally urged this court to entertain this matter and to discountenance the 1st Respondent’s objection. He drew this court’s attention to an appellant’s brief of argument, in the event this court allows him to regularize his appeal.
In his reply, the learned counsel for the 1st Respondent submitted that they are opposing the application. He drew the attention of this court to his Counter-affidavit filed on 30/11/2009 which contains 22 paragraphs. He submitted that although this court has discretion to grant or refuse an application for leave or extension of time, he stated that the Notice of Appeal in the instant application/case was filed without first seeking and obtaining leave of the appellate High Court.
Learned 1st respondent’s counsel submits that Section 185 of the Local Government Law clearly states that appeal in Local Government election from the decision of the Local Government Council Election Tribunal lies before the State High Court only and no more. He said, in this instant case the election term the applicant seeks to appeal against had already expired and even another local government council has since been elected into office after another election was duly held. He finally argued that the instant application amounts to mere academic exercise and urged this court to dismiss the motion.
Mr. T. Maduka of the learned counsel for the 2nd to 250th respondents who did not file any counter affidavit against the instant application announced that he was not opposing the 1st prayer in the application.
Replying on point of law, he said with regard to prayer 2 in the motion, the applicant was supposed to annex a Propose Notice of Appeal and NOT a NOTICE OF APPEAL Exhibit BB as he did. On this premise, he referred to Order 7 Rule 7 (c) of the Court of Appeal Rules 2007 and said that prior leave was not sought and obtained. With reference to the case of National Waterway Co. Ltd., cited and relied on by the applicant, he said that that case is distinguishable from the facts of the instant application because in that case deeming order was not sought as in this instant case and also, in that case, a proposed Notice of Appeal was annexed and not a Notice of Appeal as in this instant case. The learned counsel thereupon urged this court to refuse Prayers 2 to 4 in the application in question.
Further replying on point of law, Mr. Vincent Chieyine submitted that unlike the Electoral Act 2006, the Local Government Law did not explicitly oust the jurisdiction of this court to entertain appeal from decision of the High Court in its appellate jurisdiction on decision of Local Government Council Election Tribunal. It is noteworthy in the first place that the applicant conceded in paragraph 8th (b) & (c) of the affidavit supporting his motion, that he is supposed to seek and obtain leave before he filed his Notice of Appeal, Exhibit BB but he did not do so, even though he attributed his failure to obtain such leave to alleged mistake or inadvertence of his counsel. This means therefore, that as it stands now, the Notice of appeal filed i.e. Exhibit BB annexed to the motion is incompetent. Now the next issue for me to determine is whether the applicant has satisfied the conditions for the grant of the prayers sought by applicant as adumbrated in the opening paragraph of this ruling. It needs to be stressed that by the provisions of Order 3 Rule 10(2) of Court of Appeal 2007, such extension of time to seek leave to appeal and leave to appeal are not granted a matter of course. The conditions provided in Order 7 Rule 10(2) of this court’s rule namely, (a) good and substantial reasons for failure to appeal within the prescribed period and (b) where the grounds of appeal prima facie, show good cause why the’ appeal shall be heard must be satisfied. These two conditions must co-exist before such application is granted. I have observed above that the applicant already filed a Notice of Appeal without first of all obtaining leave as he should. Again, that Notice of Appeal has been adjudged incompetent by me for want of leave first sought and obtained before filing same. What the learned counsel for the applicant would have annexed to his application should be a proposed Notice and Ground of Appeal and Not a Notice of Appeal. In any case I will further expatiate on this point if need be.
I have noted that in Paragraph 11 of the counter affidavit dated and filed by the 1st respondent on 30/11/2009 a challenge was made on the jurisdiction and competence of this court to entertain, hear and determine this application, ab initio. In view of the importance of the issue of jurisdiction raised, I think it is incumbent on me and it is even trite law that I first of all determine and resolve the issue bordering on jurisdiction before dealing with any other issue(s) raised. The two learned counsel to the parties have in fact made far reaching submissions on the issue while arguing the motion. Before considering the issue however, I think it will be apt to reproduce, in extenso, the relevant averments of the respondent on the issue as contained in Paragraph 11 of the counter affidavit of the 1st respondent and the reply thereto. It reads thus:-
PARAGRAPH:
11. That my counsel Anali Chude Esq. of No.173 Zik Avenue, Uwani, Enugu, tells me and I verily believe him as follows:
(a) that the 1999 Constitution of the Federal Republic of Nigeria clearly stipulates the appellate jurisdiction of this court in matters of election petitions and which jurisdiction from the letters of the statute he believes does not include appeals originating from a Local Government Council Election Tribunal.
(b) that the Electoral Laws of various states including Enugu State provides that appeals from Local Government Council Elections “shall lie to the High Court of the State”.
(c) that the assumption of jurisdiction by this court to entertain the instant appeal may run fowl of the jurisdiction of the court vis-‘E0-vis the sui generic nature of election petitions.
(d) that the assumption of jurisdiction to entertain the instant appeal destroys the sui generis nature and purpose of establishing election tribunals.
(e) that even if this court assumes jurisdiction over this suit, the circumstances surrounding this application requires the leave of the court as condition precedent before the Notice and grounds of appeal and indeed any other subsequent process could be properly filed before this court.
(f) that the failure to obtain the requisite leave of the court touches on the competence of this Honourable Court to adjudicate on the appeal.
(g) that the present state of the matter is that there is no appeal pending before this court and in fact no Notice of same has been duly filed. Hence the aforesaid pending application for leave and extension of time.”
As I said supra, the learned counsel for the applicant on 2/2/2010 filed a Further Affidavit in reply to the 1st respondent’s counter affidavit dated and filed on 30/11/2009 by the 1st respondent. In an apparent response to the 1st respondent’s averment in Paragraph 11 of the counter affidavit, the applicant deposed in Paragraph 10 of the Further Affidavit of 2nd February 2010 as below:
PARAGRAPH
10. That I was informed by Vincent Chieyine Esq., the substantive counsel in this matter and I verily believe him:
(a) that there is no provision in the Electoral of Enugu State (sic) or any other law whatsoever making the High Court the final Court of Appeal (sic) in the Local Government Election matter contrary to the deposition in paragraph 11 of the said counter affidavit.
(b) that the 1999 Constitution gives the Court of Appeal jurisdiction to hear appeals against the decision of the High Court sitting at the first instance and on leave on appeal against the decision of customary courts and other tribunals.
(c) that the Court of Appeal has the final decision in election matters emanating from court below.
As stated above, the issue of jurisdiction of this court raised by the 1st respondent’s counsel in his counter affidavit and also was responded to by the applicant’s counsel as highlighted above. Issue of jurisdiction is very fundamental it being the threshold or live wire of any case. In the case of Adeniyi v. Oroja (1992) 4 NWLR(pt. 235) 322, Niki Tobi, JCA (as he then was) had this to say about “jurisdiction” on page 339.
“Jurisdiction is the main stay of any court, almost like the oil industry in the Nigerian economy, although the analogy does not quite neatly fit in, as there are other industries which assist the oil industry in the economy. Jurisdiction is the main pillar upon which the entire case stands. Filing of all action in a court of law presupposes that the court has jurisdiction. But once it is shown by the adverse party that the court has no jurisdiction, the foundation of the case will not only shake but will also crash or crumble. The parties cannot be heard on the merit of the matter. That is the end of the litigation, unless the action if competent is filed in a court of competent jurisdiction, in which case it is resuscitated de novo.”
It is my humble view therefore that jurisdiction of court is not granted as a matter of course or procedure. Courts are always conferred jurisdiction by the statute or law. Courts in this country derive their jurisdiction from any of the following sources:
(i) the Constitution; or
(ii) the enabling statues setting them up; or
(iii) other existing statutes which contain random provisions conferring jurisdiction on them or lack of jurisdiction of certain courts.
To buttress this point further, the Supreme Court in the case of Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 248 held at page 277 held that the jurisdiction of a court is donated by statute including the constitution and a court cannot add or subtract from the provisions of a statute. To my mind, no court can confer jurisdiction to itself and exercise same unless it is so conferred with same by law. A quick example on that which readily comes to ones mind is the legal Practitioner Disciplinary Committee decision which in its relevant statute says that the Supreme Court exercises appellate jurisdiction on same notwithstanding the provisions of the constitution. The Federal High Court and Court of Appeal can therefore not be heard complaining that they are not conferred with jurisdiction over the decision of the Committee since the statute gives appellate jurisdiction to the Supreme Court only and no more.
Now coming to the jurisdiction of this court, permit me to say My Lords, that the jurisdiction of the Court of Appeal is governed by the provisions of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria which provided thus:-
Section 240 of the 1999 Constitution States:-
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from the decisions of court martial or other tribunal as may be prescribed by an Act of the National Assembly.”
It can be seen clearly from the above provisions therefore, that the said constitutional provisions simply provide that the appellate jurisdiction conferred to this court by the said provisions is simply limited to appeals from courts or tribunal as may be prescribed by the National Assembly. I have looked in vain at the Court of Appeal Act 2004 to see if any other additional appellate jurisdiction is conferred on this court.
The Constitution of the Federal Republic of Nigeria by its Section 246(1) confers this Court right to hear appeal as of right from the decision of Code of Conduct Tribunal or Election Petition Tribunals. The Section reads thus:
“Section 246 (1) – An appeal to the Court of Appeal shall lie as of right from:
(a) decisions of the Code of Conduct Tribunal established in the fifth Schedule to this Constitution.
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether-
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
(ii) any person has been validly elected to the Office of Governor or Deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any court of law or tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
From the above constitutional provisions, it can be discerned, that only the Constitution or Act of the National Assembly can confer jurisdiction to the Court of Appeal on all matters especially on election matters. Section 246 of the same constitution clearly specified the nature of election petition matters that can be heard and determined by the Court of Appeal and from which court of tribunal. The said provisions nowhere stated or conferred this court with additional jurisdiction to entertain and determine election appeals or election matters or decision from High Court of a State sitting in its appellate jurisdiction on decisions of Local Government Council Election Tribunal established under laws of the State. I have looked at the Revised Laws of Enugu State of Nigeria 2004 and am unable to see any provision of law that confers this Court power to entertain appeals from the Enugu State High Court sitting in its appellate jurisdiction on decisions of Local Government Council Election Tribunal.
The only provision slightly relevant to the issue at hand is Section 185(1) of the Local Government Law Cap 109 of the State Revised Laws of Enugu State of 2004 which reads as follows:
“Section 185- (1) An appeal shall lie to the High Court of the State from the Decisions of Local Government Council Election Tribunals established under this law on any grounds specified in Section 183 of this law or on any grounds whether any person has been validly elected as Chairman or any other member of a Local Government Council or whether the seat of any such person has become vacant.
2. The time within which to appeal to the High Court shall be within one month of the decision of the Local Government Election Tribunal.”
The enactors of the law cited above as I said supra, even if they have the power and competence to confer this court with jurisdiction to hear appeals from the decisions of the appellant High Court of Enugu State on Local Government Councils Election Tribunal, which is not conceded, nowhere conferred or attempted to confer this court jurisdiction to entertain and determine such appeals. Since jurisdiction is always conferred by statute and the law in question and no other law as well conferred jurisdiction on this court on such matter, this court therefore lacks jurisdiction on the matter. This court cannot therefore take what it is not given. This Court is a creation of statute and no such statute conferred it with such jurisdiction, then common sense dictates that it lacks such jurisdiction.
The learned applicant’s counsel in the course of his argument referred to the provision of Section 272(1) of the 1990 Constitution which gives High Court general jurisdiction to hear and determine: any civil and criminal matters and he argued that since the High Court is conferred such jurisdiction by the same constitution and also the said constitution by its Section 246 gives this Court power to hear appeals from the High Court in civil matters, then it goes without saying that this court has also power to hear the instant appeal from the High Court. This argument or point as attractive as it may sound is not tenable. In making such submission, the learned counsel seems to loose sight of the fact that that provision referred to decision of the High Courts in civil or criminal matter or civil or criminal proceedings. With due diffidence to the learned counsel, election petitions or matters are sui generic. They are not civil proceedings in real or true sense. That is why they are specially and special rules or procedure and regulation are specially promulgated to govern them different from the general civil or criminal procedure. For instance, in election petition time is of essence and any deliberate delay in it violates Section 36(1) of the Constitution. See Abame v. Obi (2004) 10 NWLR (Pt. 881) at 348; ING Ltd v. ADIC Ltd. (1995) 8 NWLR (Pt. 416) 677; Nzeribe v. A.G. Imo State (1996) 10 NWLR (Pt.1478) 322 at 32. Election petition is distinct from civil or criminal proceedings. They are governed by certain procedure laid down in the Electoral Act or Law or Practice Direction promulgated by the President of the Court of Appeal vide the powers given to him so to do by the Constitution. See Abaronye vs. Emeana (2008) 10 NWLR (Pt.1096) 496; Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311; Daily Times v. Amaizu (1999) 2 NWLR (Pt.631) 439; Maitsidau v. Chideri (2008) 16 NWLR (Pt.1114) 553. Again, election petition by its nature, need to be disposed of within shortest possible time. See Pam vs. Mohammed (2008) 16 NWLR (Pt.1112). It is also in view of their special or peculiar character that decided authorities abound that interlocutory appeals in election petitions are not entertained by the appellate courts. See Usaini v. Duke (2004) 7 NWLR (Pt.871) 116 Ratio 5. All I am trying to point out here is that the provisions of Section 272 of the Constitution is restricted to the civil proceedings or criminal proceedings of the High Court only and it does not relate or extend to election petition matters. Jurisdiction of this court in election petition is specially and specifically provided under Section 246 and the Electoral Act 2006 which clearly makes provision for election in Federal Capital Territory Area Council only. Nowhere in this Act is this court conferred with jurisdiction to entertain and hear appeals on the court or appeal. The Local Government Law Cap 109 relied on by the applicant’s counsel also did not confer this court with jurisdiction on this matter either. This court therefore lacks jurisdiction to entertain and determine this application.
Now with regard to the issue of failure to obtain leave of the appellate High Court before filing the Notice of -Appeal as raised by the 1st respondent, I think that is very relevant point. By the provisions or Section 242(1) of the 1999 Constitution, there is no appeal as of right to this court on decision of High Court sitting in its appellate jurisdiction. Such appeal must be with leave of the appellate High Court or of this court. Where such appeal is filed without first seeking and obtaining leave, the Notice of Appeal is incompetent for want of prior leave. It therefore makes the appeal incompetent and such incompetence robs this court of jurisdiction to entertain, hear and determine the appeal. See Mosoba vs. Abubakar (2005) 6 NWLR (Pt. 922) 460. Thus, having failed to first seek and obtain leave of
the lower court or of this court before filing the Notice of Appeal, this instant appeal, the appeal becomes incompetent as there is no valid Notice of Appeal. This Court also on that ground lacks jurisdiction to entertain the application.
Consequently, the application is refused and dismissed for want of jurisdiction on the part of this court. N30.000 cost is granted in favour of the 1st respondent only against the applicant.
MOHAMMED L. TSAMIYA, JCA.: I have had the advantage of reading in draft the lead judgment of my learned brother SANUSI A. JCA, and I agree with it. I have nothing to add except to adopt his reasoning and conclusions as mine own.
OLUKAYODE ARIWOOLA, JCA: I had the opportunity of reading the draft of the lead ruling just delivered by my learned brother SANUSI, JCA I am in entire agreement with the reasoning and conclusion of the said ruling and I adopt it as mine. The issues involved were thoroughly and painstakingly dealt with. The application is liable to be dismissed and I also dismiss it.
I abide by the consequential order in the said ruling including the order on costs.
Appearances
Mr. Vincent ChieyineFor Appellant
AND
Anali Chude, Esq., with Dom Eze Esq.,
Mr. T. Maduka Esq., for the 2nd to 250thFor Respondent
