HON. MICHAEL P. OGBERE V. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS.
(2012)LCN/5129(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of February, 2012
CA/PH/77/2011
RATIO
THE POSITION OF THE LAW WHERE THE WORDS OF AN ACT ARE CLEAR
There is need to first point out that the provision section 272 of the 1999 Constitution is subject to the other provisions of the Constitution. Section 272 of the Constitution in the light of the arguments of the appellant should be read with section 4(4) of the 1999 Constitution and Item E12 of the part II of the Concurrent Legislative List, under the Second Schedule of the Constitution which have overriding effect on section 272 of the same ConstitutionSection 4(4) of the said constitution reads:-
“4(4) In addition and without prejudice to the power conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”
Item E12 of Part II of the Concurrent Legislative List also read as follows:-
“E12 Nothing in paragraph 11 thereof 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”. The combined effect of the above provision is to the effect that in so far the law is not inconsistent with a Federal Law, the Bayelsa State House of Assembly has the power to make laws with respect to election to a local government council. This certainly includes establishment of an election petition tribunal and vesting it with jurisdiction as done in section 82 of the Bayelsa State Local Government Law. The meaning of this in my respectful view is that the Bayelsa State Local Government Law can validly exclude the original jurisdiction of any court of tribunal to hear and determine election petitions matters on Local Government Election conducted in Bayelsa State without it conflicting with the provision of section 272 of the 1999 Constitution (as amended). If section 82 and section 83 of the said Bayelsa State Local Government Law are read together it becomes clear that a Local Government Election or return to a Local Government Council cannot be questioned except by a petition complaining of an undue election or undue return presented to the Local Government Council Election Tribunal in accordance with Bayelsa State Local Government Law. Where the words of an Act are clear it is to be applied and in doing this the provisions of the Statute are to be interpreted and construed as a whole – See PDP v. INEC (2001) 1 WRN 1 at 34, NAFIU RABIU V. THE STATE (1980) 8-11 SC 130. PER. T.O. AWOTOYE, J.C.A
JUSTICES
M. DATTIJO MUHAMMA Justice of The Court of Appeal of Nigeria
PAUL ADAMU. GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
HON. MICHAEL P. OGBERE Appellant(s)
AND
1. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION
2, EDDY JULIUS
3. PEOPLES DEMOCRATIC PARTY BAYELSA STATE Respondent(s)
T.O. AWOTOYE, J.C.A, (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant on 27/10/2010 against the judgment of Ugo J. of Bayelsa State High Court delivered on 13/10/2010 in suit No. YHC/168/2010 HON. MICHAEL P. OGBERE V. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION.
The appellant being aggrieved filed this appeal. His Notice of Appeal contains 4 grounds of appeal.
After transmission of record of appeal parties filed and exchanged briefs.
The appellant’s brief of argument was filed on 8/3/2011. The respondents brief was deemed filed on 24/10/2011. The appellant filed a reply brief in response to the respondent’s brief on 2/11/2011.
In his brief, settled by Dr. Dele Alufe for appellant the appellant formulated 3 issues for determination:-
“1) Whether the learned trial judge right (sic) to have gone outside the grounds upon ‘ which the 2nd respondent brought
2) Whether the appellant (sic) right was extinguish (sic) under section 82 viz-a-viz section 277 of the Constitution.
3) Whether section 82(2) of the Local Government Law Cap 110 of Bayelsa State 2006 was not in conflict with section 272 of the 1999 Constitution of the Federal Republic of Nigeria.”
On issue No. 1 learned counsel for the appellant submitted that the court could not award to a claimant that which he did not claim.
He referred to the ground of the application of the 2nd defendant/respondent as follows:-
“1) Whether in view of the provisions of section 82(2) of the Local Government Law Cap 110 Laws of Bayelsa State 2006 this Honourabre Court is vested with the jurisdiction to entertain and determine this action.”
He submitted that no court had the jurisdiction to recast, rearrange or reconstruct the reliefs sought with a view to granting a relief at all cost. He relied on A.G. ABIA STATE v. A.G. FEDERATION (2006) ALL FWLR (PT.338) 604, OLATUYI V. OWENA BANK (NIG.) PLC. (2003) FWLR 158 AWOJIGBADE V. LIGHT INDUSTRY LTD. V. CHINUKE (2004) ALL FWLR (PT.229) Page 943.
He urged the court to resolve this issue in favour of the appellant.
On issue No.2, learned counsel submitted that section 82(2) of the Local Government Law Cap 110 of Bayelsa State was in conflict with Section 272 of the constitution and to that extent null and void. He state that it was the case of the defendant that the claimant’s action could only be heard by the election tribunal and the state High Court, relying on ILOBI V. OZOGWU (2005) ALL FWLR (PT.285) 595 at 610, and other cases.
He placed reliance on EKULO FARMS LTD v. UBN PLC (2006) ALL FWLR (PT. 319) Page 898 to buttress his argument.
On issue No. 3, learned counsel argued that the court ought to have applied AMAECHI V. INEC’s case to assume jurisdiction to hear the matter as was held in F&F FARM (NIG.) LTD v. NNP (2009) VOL. 177 LRCN 107 at 129.
He urged the court resolve all the issues in favour of the appellant, hold that the appeal succeeds, set aside the ruling of the lower court and order that the suit be determined by the High Court.
The 2nd respondent in his brief settled by Samina Peter Johnbull raised preliminary objection as follows:-
(1) Ground 3 of the grounds of appeal does not arise from the judgment of the court below
(2) Issue 1, 2 and 3 are not distilled from the grounds of appeal,
(3) Appeal is incompetent because there is no competent issue for determination arising from the Grounds of Appeal.
He submitted that Ground 3 of the Appellant’s Grounds of Appeal does not arise from the judgment of the lower court. He relied on MERCANTILE BANK OF NIGERIA V. NWOBODO (2005).7 SC (PT.3) 1 at 8.
He submitted further that the ground of appeal must attack the ratio decidendi of the decision of the lower court. He cited MBAKWE V. RMS AFRICA (2001) 4 NWLR (PT. 704) 574 at 583 584 SARAKI V, KOTOYE (1992) 9 NWLR (PT.264) 156 at 184.
Learned counsel further submitted that issues 1, 2 and 3 are not distilled from the grounds of appeal as contained in the Notice of Appeal. He relied on A.P. LTD. V. OWODUNI (1991) 8 NWLR (PT. 210) 391 at 410, CHAMI V. UBA PLC. (2010) 6 NWLR (PT.1191) 474 at 493.
He finally submitted that the issues do not arise from the grounds of appeal.
He urged the court to hold that the appeal is incompetent and strike it out accordingly.
Dr. Dele Alufe for the appellant filed appellant’s reply brief to respond to the preliminary objection of the 2nd respondent. Learned counsel submitted that Ground 3 was an issue that was canvassed at the lower court.
He submitted that Ground 3 arose from the judgment/ruling of the lower court. He referred to pages 189 -190 and 194 – 195 of the record of proceedings.
He further argued that issue 1,2 and 3 are distilled from the grounds of appeal. He relied on the Supreme Court case of IBORI v. AGBI (2004) ALL FWLR (PT. 202) page 1799 at 1828 – 1829.
He finally urged the court to dismiss the preliminary objection.
In considering the preliminary objection raised by the 2nd Respondent, it is necessary to quote the grounds of appeal which are being challenged as well as the issues in contention.
The grounds of appeal as per the Notice of Appeal in pages 204 – 206 of the record of appeal read as follows:
“GROUND 1
The: lower court erred in law, when the court held that the claimant/appellant’s right to institute the action was extinguished upon the conduct of the election.
PARTICULARS OF ERROR
1. The learned trial judge held that pre-election matter (as in this case) crystallizes into an election matter once the election is conducted, thereby extinguishing the right of that person to institute an action emanating from the pre-election matter except by way of an election petition to an election tribunal.
2. The court failed to take into cognizance the fact that the claimant/appellant never waived or slept over his right to institute the action, knowing fully well that the election was conducted.
3. That the substitution of the appellant was two days before the election.
GROUND 2
The lower court misdirected itself and erred in law when it held that the case of Alhaji Jubril Hassan v. Babangida Aliu is similar fact with this case, hence the decision of the Supreme Court in the former case must be applied in this case.
PARTICULARS OF ERROR
1. The case of Alhaji Jubril Hassan V. Babangida Aliu is NOT of similar facts and/or in all forms with the appellant case to apply by the learned trial judge mutatis mutandi.
GROUND 3
The learned trial judge erred in law when he declined jurisdiction without regards to the provisions of section 272 of the 1999 Constitution of the Federal Republic of Nigeria vis-a-vis the provision of section 251 of the same constitution or enactment by the National Assembly.
PARTICULARS OF ERROR
1. The plank of the 2nd respondent application was section 82 of the local Government Law Cap 110 laws of Bayelsa State 2006.
2. That where there is a conflict between a state law and the provision of the constitution, the provisions of the constitution will prevail and the state law to the extent of its constituency will be null and void and of no effect.
3. These cases of EKULO FARMS LTD VS UBN PLC (2006) ALL FWLR PART 319 PAGE 898 RATIO 1, 3, 4 & 5 and REGISTERED TRUSTEES CSST VS. COE KOGI STATE (2006) ALL FWLR PART 299 PAGE 1549 AT 1562 was not considered.
GROUND 4
The learned trial judge erred in law when it refused to consider the case of AMAECHI VS INEC (2008) ALL FWLR PART 407 PAGE 1.
More grounds of appeal will be filed upon the receipt of the record of proceedings.”
The issues formulate by the appellant have been stated earlier in this judgment.
I have carefully considered the submissions of learned counsel on both sides. It is true that issue formulated must relate to the grounds of appeal and what it does not so relate it is liable to be struck out. See IBATOR V. BARAKURO (2007) 9 NWLR (PT.1040) 475 where Ogbuagu JSC on page 503 said:
“…I wish to state that it is now firmly settled that every issue for determination must be formulated from, based upon and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the
argument or arguments advanced thereunder in the consideration of the appeal. So, for an issue of determination to be competent it must be based on a ground of appeal.”
Also sometimes a fact or ground of appeal may be enough to raise an issue. However more often than not a combination of facts and ground of appeal raise an issue. See IBORI V. AGBI (2004) 6 NWLR (PT. 8168) 78.
I shall consider this preliminary objection in the light of the above.
After carefully ‘going through the grounds of appeal and the issues formulated I am of the firm view that issue No. 1 formulated by the appellant is not distillable from any of the grounds of appeal. It is therefore incompetent and accordingly struck out.
However issues No. 2 and 3 are competent and distillable from the grounds of appeal and arise from the judgment of the court below.
This preliminary objection therefore succeeds as in part. Issue No.1 formulated by the appellant is struck out while the other issues are held to be competent.
Now to the main appeal.
I have deeply considered the arguments canvassed on both sides as well as the contents of the record of appear.
To my mind, the sole issue that calls for resolution in this appeal which embraces, the issue formulated by the parties is:
Whether the court below was right to have uphold the preliminary objection of the respondent when it held thus-
“The Claimants right to institute this purely pre-election suit, I have shown ceased upon the holding of the chairmanship election on 3rd April, 2010. And that is a feature in the case that denies this court of the competence to entertain it. See MADUKOLUM (SIC) V. NKEMDILIM (1962) ALLNLR 587.”
There is need to briefly state the facts of the case at the court below at this juncture.
The claimant now appellant instituted this action on 28/4/2010 against the BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION and OTHER, challenging his substitution by the PDP with the 2nd defendant for the EKEREMOR LOCAL GOVERNMENT COUNCIL CHAIRMANSHIP ELECTION organized by the electoral body on 3/4/2010.
The 2nd defendant by his preliminary objection filed on 19/5/2010 sought to strike out or dismiss the suit on the ground that the court lacked competence to determine it in view of section 82(1) of the Local Government Law Cap 10 L10 Laws of Bayelsa State 2006.
The court below in upholding the preliminary objection relied heavily on the Supreme Court case of HASSAN V. DR. BABANGIDA ALIYU & OTHERS in suit No. SC170l2009 delivered on 16/7/2010 where the Supreme Court held that the right to pursue a pre-election matter ceased after holding of the election except only if the action was instituted before the holding of the election.
The appellant attacked the ruling of the lower court on the ground that section 82(2) of the Local Government Law conflicted with section 272 of the 1999 Constitution and as such his right of action could not be extinguished by the provision of section 82(2) of the Local Government Law. I respectfully disagree.
For clarity sake I shall quote the provision of the law and constitution relied upon by the appellant hereunder.
Section 272 of the 1999 Constitution reads:-
“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, obligation 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.”
Sections 82 and 83 of the Local Government Law of Bayelsa State also read thus:-
“82(1) There shall be established for the a State one or more election tribunals to be known as Local Government Council Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine.
(a) petitions as to whether any person has been validly elected as Chairman of a Local Government Council or as Councillor;
(b) any question as to whether the term of office of any person as Chairman of a Local Government Council has ceased, and
(c) any question ‘as to whether the seat of any Councilor in a Local Government Council has become vacant.
(2) A Local Government Council Election Tribunal shall consist of a chairman and 2 other members ail of whom shall be persons of unquestionable integrity who have not been involved in party politics.
(3) The Chairman shall be a person who has held office or is qualified to hold the office of a judge of the High Court.
(4) One of the members shall be a legal practitioner who has been so qualified for a period of not less than five years and the other one shall be a non-member of the legal profession.
(5) The Chairman and other members shall appointed by the Chief Judge of the State.
83. No Local Government election and no return to a Local Government Council shall be questioned except by a petition complaining of an undue election or undue return (in this Law referred to as an “election petition”) presented to the Local Government Council Election Tribunal in accordance with the provisions of this part of this law.”
There is need to first point out that the provision section 272 of the 1999 Constitution is subject to the other provisions of the Constitution.
Section 272 of the Constitution in the light of the arguments of the appellant should be read with section 4(4) of the 1999 Constitution and Item E12 of the part II of the Concurrent Legislative List, under the Second Schedule of the Constitution which have overriding effect on section 272 of the same Constitution
Section 4(4) of the said constitution reads:-
“4(4) In addition and without prejudice to the power conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”
Item E12 of Part II of the Concurrent Legislative List also read as follows:-
“E12 Nothing in paragraph 11 thereof 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”.
The combined effect of the above provision is to the effect that in so far the law is not inconsistent with a Federal Law, the Bayelsa State House of Assembly has the power to make laws with respect to election to a local government council. This certainly includes establishment of an election petition tribunal and vesting it with jurisdiction as done in section 82 of the Bayelsa State Local Government Law.
The meaning of this in my respectful view is that the Bayelsa State Local Government Law can validly exclude the original jurisdiction of any court of tribunal to hear and determine election petitions matters on Local Government Election conducted in Bayelsa State without it conflicting with the provision of section 272 of the 1999 Constitution (as amended).
If section 82 and section 83 of the said Bayelsa State Local Government Law are read together it becomes clear that a Local Government Election or return to a Local Government Council cannot be questioned except by a petition complaining of an undue election or undue return presented to the Local Government Council Election Tribunal in accordance with Bayelsa State Local Government Law. Where the words of an Act are clear it is to be applied and in doing this the provisions of the Statute are to be interpreted and construed as a whole – See PDP v. INEC (2001) 1 WRN 1 at 34, NAFIU RABIU V. THE STATE (1980) 8-11 SC 130.
The appellant/claimant’s action at the court below was questioning the election conducted by Bayelsa State Independent Electoral Commission, even though on the ground that he was allegedly wrongfully substituted. Since the action was not instituted before the election, it had crystallized into an election matter and it is no longer a pre-election matter. Therefore the lower court was right to have drawn support from the Supreme Court case of HASSAN V. DR. BABANGIDA ALIYU (supra).I must state that the case of AMAECHI v. INEC (2008) ALL FWLR (PT.407) is clearly distinguishable from this case. In AMAECHI’s case the appellant who was the candidate whose name was substituted went to court even before the substitution was done and much earlier before the election was conducted i.e. it was a pre-election matter as opposed to the facts of this case.
I see no merit in this appeal. The court below was right to uphold the preliminary objection of the 2nd defendant/respondent.
I resolve the sole issue formulated by me in favour of the respondents.
This appeal fails. It is accordingly dismissed with N30,000.00 cost in favour of the Respondents.
M. DATTIJO MUHAMMAD, J.C.A: I have read in draft the lead judgment of my learned brother AWOTOYE JCA with whose reasoning and conclusion I entirely agree. The appeal, for those same reasons, lacks merit.
I accordingly dismiss same and abide by the orders reflected in the lead judgment including the order regarding costs.
PAUL ADAMU GALINJE, J.C.A: I agree.
Appearances
S.O.E. OdiokoFor Appellant
AND
S. JohnbullFor Respondent
