IWOK v. INYANG & ORS
(2022)LCN/16919(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 19, 2022
CA/C/119/2021
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
PATRICK CHRISTOPHER IWOKAPPELANT(S)
And
1. EKERETE ETIM INYANG (Chairmanship Candidate, Peoples Democratic Party, (PDP)) 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. AKWA IBOM STATE INDEPENDENT ELECTORL COMMISSION (AKISIEC)RESPONDENT(S)
RATIO
Now, the appellate system in this Country has taken firm root in our legal system principally due to the sacrosanct nature of the right of appeal, either as of right or with leave, of the citizen to approach a higher level of Court in the hierarchy of Courts in Nigeria to ventilate his grievance against decisions of a lower Court with which he is dissatisfied or peeved. However, it is of great importance to note that the right of appeal, though sacrosanct, does not exist in vacuo. It must exist either constitutional or statutorily. In other words, the right to appeal can neither be inferred nor implied, and there is also no inherent right of appeal. Thus, for a right of appeal to exist and be available to a party it must be shown to exist either constitutionally and/or statutorily. Therefore, where no provision of a right to appeal exists, then no appeal will lie. See Diwe V. Nwanosike (2017) LPELR-41687 (CA). See also Iwuagwu V. Okoroafor & Ors (2012) LPELR-20829 (CA); Emecheta V. Sowemimo (2018) LPELR–50419 (CA); per Sir Biobele Abraham Georgewill JCA; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528 (CA) per Sir Biobele Abraham Georgewill JCA; Akinbisehin V. Olajide (2018) LPELR-51172 (CA) per Sir Biobele Abraham Georgewill JCA. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This appeal has had a chequered history. It is on its second journey to this Court and we hope on its final and last journey here. It has gone through here on its way or journey to the Apex Court, a rare bird to have flown at that altitude of the highest in the judicial hierarchy of this Country, where it was remitted to us to have a second look at it. This judgment is thus our second calm and careful look at this appeal, with the hope, a very fervent one, of getting it right this time around, we having been found to have erred in the first time!
This is an appeal against the Judgment of the High Court of Akwa Ibom State, Coram: Aniekan E. Eton J., in Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors delivered on 2/3/2021, in which the claims of the Appellant as Claimant against the Respondents as Defendants were dismissed for both lacking in competence and merit.
The Appellant was peeved by the said judgment and had appealed against it vide his Notice of Appeal filed on 12/3/2021 on five grounds of appeal. See pages 421-424 of the Record of Appeal remitted to this Court from the Supreme Court. The Appellant’s brief was filed on 8/4/2021. See pages 580-596 of the Record of Appeal. The 1st Respondent’s brief was filed on 26/4/2021. See pages 600-627 580 of the Record of Appeal. The 2nd Respondent’s brief was filed on 22/6/2021. See pages 650-656 of the Record of Appeal. The 3rd Respondent’s brief was filed on 22/6/2021. See pages 658-667 of the Record of Appeal. The Appellant’s Reply brief was filed on 30/4/2021. See pages 633-648 of the Record of Appeal.
The appeal was heard on 17/8/2022, when learned counsel for the respective parties adopted their written addresses filed pursuant to the directive of this Court made on 16/8/2022 in relation to the issue raised suo motu by this Court as the fallout of the decision of the Supreme Court as to whether or not appeal lies to this Court from the decision of the lower Court in respect of Pre-Election matter arising from Local Government Elections in Akwa Ibom State. They also adopted their respective briefs as their arguments in support and in opposition of the appeal. The Appellant was represented by Kabir Akingbolu Esq, appearing with Samuel Ogala Esq, and Tamunotonye Ekundayo Esq. The 1st Respondent was represented by Utibe Nwoko Esq. The 2nd Respondent was represented by Akpadiah Ebitu Esq. The 3rd Respondent was represented by Vaniah Agbon Esq, holding the brief of Ekemini Udim Esq.
By a Writ of Summons filed before the lower Court, the Appellant as Claimant claimed against the Respondents as Defendants the following reliefs, namely:
1. A Declaration that under the platform of the 2nd Defendant (Peoples Democratic Party – PDP), it is the turn of Midim Clan in Abak Local Government Area to produce the Chairmanship Candidate of the 2nd Defendant for Abak Local Government Chairmanship Election that held on 31/10/2020, in compliance with the zoning formula of the 2nd Defendant, and in the interest of equity, fairness and justice.
2. A Declaration that acts of the Defendants in depriving the Claimant (the only aspirant from Midim Claim) his turn to emerge as the Chairmanship Candidate of the 2nd Defendant in Abak Local Government Chairmanship election that held on 31/10/2020 is unfair, malicious, and a contradiction of Section 7 (3) (c) of the Constitution of the Peoples’ Democratic Party (as amended in 2017).
3. A declaration that the document titled PDP Zoning Report Chairmanship position in Abak – 2021 and beyond”, which is dated 23/7/2020 signed by Dr. Michael Dan Udo, PDP Chapter Chairman, Abak, is valid and enforceable against the defendants.
4. An Order directing the 2nd-3rd Defendants to replace the name of the 1st Defendant with the name of the claimant as the Chairmanship candidate of the 2nd Defendant for Abak Local Government Chairmanship Election that was held on 31/10/2020.
5. An Order directing the 3rd Defendant to issue a certificate of return to the Claimant as the elected Chairman of Abak Local Government Area in the Abak Local Government Chairmanship Election held on 31/10/2020.
6. An Order directing the 1st Defendant to return all proceeds that accrued to the office of the Executive Chairman of Abak Local Government Area from the date of his swearing-in till judgment is delivered in this case, to the Claimant.
7. General Damages of N100,000,000.00 only for the stress and emotional trauma of the Claimant occasioned by the acts of the Defendants.
8. The sum of N10,000,000.00 as cost of the action. See pages 2-76 of the Record of Appeal remitted to this Court from the Supreme Court.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant as Claimant before the lower Court as can be gleaned from as in the Record of Appeal was that sometime in the year 2020, the Government of Akwa Ibom State announced its intention to conduct elections across the 31 Local Government Councils, and on 23/7/2020, one Dr. Michael Dan Udo – the Chapter Chairman of the 2nd Respondent, PDP in Abak Local Government Area of Akwa Ibom State, caused to be published in the media a document through which the Chairmanship position for Abak Local Government Area under the Platform of the 2nd Respondent was zoned to Midim Clan – the Clan of the Appellant. With this development, the Appellant bought the Expression of Interest and also Nomination Forms from the 2nd Respondent but surprisingly, the 2nd Respondent also sold Forms to the 1st Respondent and other persons who are not indigenes of Midim Clan that was favoured by the Zoning document. Subsequently, the Appellant was rejected by the Screening Panel set up by the 2nd Respondent on the Ground that Zoning did not favour his Clan, and despite his appeal to the Appeal Panel set up by the 2nd Respondent his rejection was not reversed. On 24/8/2020, the Primary Elections of the 2nd Respondent was held and on 28/8/2020 the results were published, hence the action by the Appellant against the Respondents before the lower Court.
The gist of the case of the 1st Respondent as the 1st Defendant before the lower Court as can be gleaned from the Record of Appeal was that the Appellant was an aspirant for the position of Chairman of Abak Local Government Council of Akwa Ibom State, Nigeria under the platform of the 2nd Respondent, PDP which position the 1st Respondent, who hails from Afaha Obong Clan, in Abak Local Government Area, also contested for but the Appellant was disqualified while the 1st Respondent was cleared and duly contested the said Primary Elections on 24/8/2020 from which he emerged as the candidate of the 2nd Respondent for the Chairman of Abak Local Government Council of Akwa Ibom State. The Chairmanship position of Abak Local Government Area was not zoned to Midim Clan but was opened to every qualified indigene of Abak Local Government Area, and therefore, the nomination of the 1st Respondent as the candidate of the 2nd Respondent was in line with the Constitution and the guidelines of the 2nd Respondent, PDP. At any rate, the Appellant deposed to an affidavit of undertaking not to seek any redress in a Court, in the event that, he did not win the Primary Election of the 2nd Respondent.
The gist of the case of the 2nd Respondent as the 2nd Defendant before the lower Court as can be gleaned from as in the Record of Appeal was that the 2nd Respondent, PDP has no zoning arrangement in respect of the Chairmanship of Abak Local Government Council as same is the decision of the State Executive Committee of the party. The Appellant voluntarily bought the nomination forms to contest for the Chairmanship of Abak Local Government Area which was opened to all qualified indigenes of Abak Local Government Area who were members of the 2nd Respondent, and had in compliance with the guidelines of 2nd Respondent deposed to an affidavit of undertaking that he will support whoever is nominated by the 2nd Respondent as its Candidate for its Local Government Council election as Chairmanship candidate and work at all times towards its success and will not engage in any anti-party activities. The decisions of the 2nd Respondent is final and binding on the Appellant, who did not sail through in the screening exercise of the 2nd Respondent and was therefore, not cleared to contest the 2nd Respondent Primaries for Abak Local Government Area Chairmanship, which held on 24/8/2020, without his participation.
At the hearing, the Appellant testified for himself as PW1 and adopted his written statements on oath dated 10/2/2021 and 18/2/2021, and tendered some documents, which were admitted in evidence as Exhibits Exhibits A, A1-A9, and closed his case. In his defence, the 1st Respondent testified for himself as DW1 and adopted his written statement on oath dated 11/02/2021, and tendered some documents, which were admitted in evidence as Exhibits B, B1-B2, and closed his case. In its defence, the 2nd Respondent called one William Umoh, its Administrative Officer, who testified as DW2 and adopted his written statement on oath dated 22/02/2021, and tendered some documents, which were admitted in evidence as Exhibits C, C1-C2 and closed its case. The parties filed and exchanged their final written addresses, which were duly adopted by them on 26/2/2021 and on 2/3/2021, the lower Court delivered its judgment dismissing the claims of the Appellant against the Respondents, hence the appeal. See pages 387-420 and 421-424 of the Record of Appeal remitted to this Court from the Supreme Court.
ISSUES FOR DETERMINATION
In the Appellant’s brief, four issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether the lower Court was right to hold that Appellant did not evince the required locus standi? (Distilled from Ground1 )
2. Whether the declaration of the Appellant as per clause g (ii) page 8 of Exhibit “A6” is detrimental to the case of the Appellant? (Distilled from Ground 2)
3. Whether the suit of the Appellant was indeed statute barred as at when it was initiated at the lower Court? (Distilled from Ground 3)
4. Whether the lower Court was right when it held that Exhibit A7 is inadmissible and that it was not binding on the 2nd Respondent? (Distilled from Grounds 4 and 5)
In the 1st Respondent’s brief, four issues were distilled as arising for determination in this appeal, namely:
1. Was the suit of the Appellant not statute-barred and the right therein to institute an action caught up by the doctrine of limitation of action?
2. In view of Exhibit A6, was the Appellant entitled to seek redress in the Court of law to claim the reliefs in respect of the subject matter of the suit?
3. Was the Appellant clothed with the locus standi to institute the suit, the subject matter of this appeal?
4. Was the lower Court right when it held that Exhibit A7 was not binding on the Respondents?
In the 2nd Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Appellant had the locus standi to institute the suit which gave rise to this appeal having not been a candidate at the 24/8/2020 Chairmanship Primary Elections for Abak Local Government Area? (Distilled from ground1)
2. Whether the lower Court was clothed with jurisdiction to hear and determine the suit of the Appellant, same being a pre-election matter which ought to have been filed within 14 days from the date of the said Primaries? (Distilled from Ground 3)
I have taken time to consider the pleadings and evidence, both oral and documentary as led by the parties before the lower Court as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment appealed against. I have further considered the submissions of learned counsel in their respective written addresses on the issue raised suo motu by this Court, and I am of the view that the proper issues arising for determination in this appeal are the four issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the four issues as distilled in the 1st Respondent’s brief as well as the two issues as distilled in the 2nd Respondent’s brief. However, since the issue raised suo motu by this Court, and on which the parties had addressed this Court in their written addresses as duly adopted by them at the hearing of this appeal, is one touching on the competence or otherwise of the appeal itself, I shall first considered and resolved it one way or the other before, and if need be, considering the issues dealing with the merit or otherwise of the substantive appeal.
RULING ON THE ISSUE RAISED SUO MOTU BY THE COURT
On 16/8/2022, this Court had, in view of the directive contained in the Supreme Court delivered on 13/5/2022, raised the following issue suo motu, namely:
“In view of the judgment of the Supreme Court in Appeal No. SC/CV/476/2021 delivered on 13/5/2022 directing this Court to re-hear this appeal and to consider the question whether this Court has the jurisdiction to hear appeals from decisions of the lower Court on Pre-Election matters arising from conduct of Local Government Elections, the parties are hereby directed to file written addresses on the issue whether this Court has the jurisdiction to hear this appeal arising from Pre-Election matters relating to Local Government Elections in Akwa Ibom State”
APPELLANT’S COUNSEL WRITTEN SUBMISSIONS
In his written address, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that this Court has the jurisdictional competence to hear and determine the appeal against the decision of the lower Court in respect of a Local Government Election to the Office of Chairman of Abak Local Government Area of Akwa Ibom State and contended that by the provisions of Section 285 (14) of the Constitution of Nigeria 1999 (as amended), a pre-election matter has to do with an election to which an Act of the National Assembly applies and urged the Court to hold that by Section 241 of the Constitution of Nigeria 1999 (as amended), this appeal lies as of right to this Court of appeal from the decision of the lower Court, being the High Court of Akwa Ibom State on any civil claim or criminal cause and to resolve the issue raised suo motu by the Court in favor of the Appellant and to proceed to determine the appeal on the merit. Counsel referred to Sections 4(2) and 241 of the Constitution of Nigeria 1999 (as amended), and relied on Bassey V. PDP & Ors (2021) LPELR-55714 (CA); the unreported decision of the Supreme Court in Appeal No. SC/CV/476/2021: Patrick Christopher Iwok V. Ekerette Etim Inyang & Ors, delivered on 13/5/2022.
It was also submitted that the only Section of the law relevant to the instant appeal is Section 241 of the Constitution of Nigeria 1999 (as amended) which specifically deals with the Appellant’s right of appeal, and contended that by the provision of the said Section a full right of appeal as of right was thereby conferred on the Appellant without any restriction, which is subject only to the provision of Section 242 of the Constitution of Nigeria 1999 (as amended) where appeal can only emanate with leave and urged the Court to hold that the decision of the Supreme Court in Aliyu V. APC & Ors (2022) LPELR-57345 (SC), heavily relied upon by the Respondents is of no avail to them since in that case the cause of action was founded on Section 87 of the Electoral Act unlike in the instant case where the Appellant has not restricted his claim to said provision of the Electoral Act but had rather complained against the 2nd Respondent from drifting away from adhering with the provisions of its Constitution as regards the issue of zoning, which is justiciable and to resolve the issue raised suo motu by this Court in favor of the Appellant and to proceed to determine the competent appeal of the Appellant on the merit.
1ST RESPONDENT’S COUNSEL WRITTEN SUBMISSIONS
In his written address, which I have taken time to review in its entirety, learned counsel for the 1st Respondent had submitted inter alia that this Court does not have the jurisdictional competence to hear and determine the instant appeal founded on a pre-election matter arising from Local Government Election in Akwa Ibom State and contended that in law matter bordering on or arising from both Elections and Pre-Elections matters founded on Local Government Election are clearly outside the jurisdiction of this Court and rather within the jurisdiction of the lower Court, being the High Court of Akwa Ibom State from which the Local Government matters emanated and urged the Court to hold that in law Primary Election, or any grievance relating to selection of Candidates as Chairman and/or Councilors at any Local Government Council in Nigeria, other than the Area Councils in the Federal Capital Territory, this Court lacks the jurisdiction to entertain such matters and to resolve the issue raised suo motu by this Court against the Appellant and to decline jurisdiction and strike out the appeal for being incompetent. Counsel referred to Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Aliyu V. APC & Ors (2022) LPELR-57345 (SC); Mrs. Olufunke Victoria Ehuwa V. Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 AT p. 576; Muyiwa V. Muhammed (2022) 9 NWLR (Pt.1836) 435.
2ND RESPONDENT’S COUNSEL SUBMISSIONS
In his written address, which I have taken time to review in its entirety, learned counsel for the 2nd Respondent had submitted inter alia that in law since the case leading to the appeal emanated from the Akwa Ibom State Local Government Election conducted under the Akwa Ibom State Independent Electoral Commission (AKISIEC) Law of 2017, it follows that the election and all complaints relating thereto shall be guided by the Provision of AKISIEC Law of 2017 and other enabling Laws made by the Akwa Ibom State’s House of Assembly and not by the Provision of Section 285(12) of the Constitution of Nigeria 1999 (as amended) and contended that Appellant further contended that the Provision of Section 285 (12) and (14) of the Constitution of Nigeria 1999 (as amended) are of no relevance to and do not accommodate pre-election matters in connection with Local Government Elections in Akwa Ibom and urged the Court to hold in law all issues or cause of action, Petition and/or Pre-Election matters emanating from the conduct of election to positions in in the Local Government Councils of Akwa Ibom State and or any other state in Nigeria, save the Area Councils in FCT Abuja, terminates at the High Courts or other Courts of the respective state and not to this Court and to decline jurisdiction and strike out this appeal for being grossly incompetent. Counsel relied on Aliyu V. APC & Ors (2022) LPELR – 57345 (SC).
RESOLUTION OF THE ISSUE RAISED SUO MOTU BY THE COURT
My lords, resolving the issue raised suo motu by this Court in this appeal would have posed some difficulty but for the very emphatic pronouncements of the Supreme Court, which were timely brought to our attention in the written addresses of the parties filed pursuant to our directives issued to the parties on 16/8/2022. Ours now, is simply to follow and bow to the dictates of the principles of law as stated clearly by the Apex Court in the decided cases relied upon by the parties.
Now, the appellate system in this Country has taken firm root in our legal system principally due to the sacrosanct nature of the right of appeal, either as of right or with leave, of the citizen to approach a higher level of Court in the hierarchy of Courts in Nigeria to ventilate his grievance against decisions of a lower Court with which he is dissatisfied or peeved. However, it is of great importance to note that the right of appeal, though sacrosanct, does not exist in vacuo. It must exist either constitutional or statutorily. In other words, the right to appeal can neither be inferred nor implied, and there is also no inherent right of appeal. Thus, for a right of appeal to exist and be available to a party it must be shown to exist either constitutionally and/or statutorily. Therefore, where no provision of a right to appeal exists, then no appeal will lie. See Diwe V. Nwanosike (2017) LPELR-41687 (CA). See also Iwuagwu V. Okoroafor & Ors (2012) LPELR-20829 (CA); Emecheta V. Sowemimo (2018) LPELR–50419 (CA); per Sir Biobele Abraham Georgewill JCA; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528 (CA) per Sir Biobele Abraham Georgewill JCA; Akinbisehin V. Olajide (2018) LPELR-51172 (CA) per Sir Biobele Abraham Georgewill JCA.
So, is there a right of appeal constitutionally or statutorily from decisions of the lower Court, being the High Court of Akwa Ibom State, in Pre-Election matters arising from the preparation and/or conduct of Local Government Elections in Akwa Ibom State of Nigeria under the AKISIEC Law 2017? This, to my understanding, is the crux of the issue raised suo motu by this Court in view of the directives contained in the judgment of the Supreme Court delivered on 13/5/2022 between the parties to this appeal.
Now, in the instant appeal, the parties are ad idem, and for good cause in the light of the specific and emphatic pronouncements of the Apex Court, that the provisions of Section 285 of the Constitution of Nigeria 1999 (as amended) do not apply to any matter arising from the conduct of Local Government Elections and/or Pre-Election matters arising therefrom, such as the subject matter in the instant appeal. See Aliyu V. APC & Ors (2022) LPELR-57345 (SC), per Tijani Abubakar JSC. See also Bassey V. PDP & Ors (2021) LPELR – 55714. (CA),
It also seems settled in law that the AKISIEC Law 2017, which is the law regulating the preparation and conduct of elections into all or any of the 31 Local Government Councils in Akwa Ibom State, being a state law cannot donate any jurisdiction to this Court. This is so because it is purely a product of the Akwa Ibom State House of Assembly operating within the ambit and plenitude of powers vested on it by the Constitution of Nigeria 1999 (as amended), and which therefore, lacks the vires or power to make any law donating jurisdiction to this Court in any matter which is not only outside the scope and spheres of its constitutional powers but matters over which the power to legislate upon is squarely and constitutionally conferred on the National Assembly. Thus, it is only the Constitution of Nigeria 1999 (as amended) and/or National Assembly that can, in my humbly view, donate and/or confer jurisdiction on this Court in Electoral matters covered by the provisions of the Constitution of Nigeria 1999 (as amended) and the Electoral Act 2022.
More importantly, it is clear that neither Sections 241 nor 285 of the Constitution of Nigeria 1999 (as amended) have anything to do with either Local Government Elections and determination of any matter arising therefrom, including appeals thereon. In same token, these Constitutional provisions also have nothing whatsoever to do with any Pre-Election matter from Local Government Elections. Indeed, the attempt by Sections 19 and 48 of the AKISIEC Law 2017 to drag these Constitutional provisions into Local Government Elections in Akwa Ibom State have since been declared null and void by the Apex Court, having been found to be inconsistent with the provisions of Section 87 of the Electoral Act 2010 (as amended). See the unreported judgment of the Supreme Court in Appeal No. SC/CV/476/2021: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors delivered on 13/5/2022. See also Bassey V. PDP & Ors (2021) LPELR – 55714. (CA).
Thus, in matters of Local Government Elections, as in the instant appeal, since Local Government Elections are primarily within the vires of the States’ Houses of Assembly, the jurisdiction to determine any cause and or matter arising therefrom can only be legislated upon by the State Legislature and would therefore, be limited and/or restricted to the Courts within the States’ judicial system. It follows therefore, in all such causes and/or matters relating to and arising from the preparation and conduct of Local Government Elections, the decisions of the lower Court, being the High Court of Akwa Ibom State is final. See Aliyu V. APC & Ors (2022) LPELR-57345 (SC), per Tijani Abubakar JSC. See also Mrs. Olufunke Victoria Ehuwa V. Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 AT p. 576; Muyiwa V. Muhammed (2022) 9 NWLR (Pt.1836) 435.
In the circumstances therefore, any decision given by the lower Court, including the one the subject matter of this appeal, whether rightly or wrongly, though regrettably if wrongly, is final and there is no appeal to any other Courts of law in this Country. In other words, the lower Court is indeed the Court of last resort and the last bus stop on all causes or matters arising from the preparation and/or conduct of Local Government Elections in Akwa Ibom State of Nigeria, including pre-elections maters arising therefrom. It is final! It is finished!! It is all over!!! There is no other or further recourse to any other Courts in Nigeria, and certainly not this Court, once the lower Court has determined the cause or matter arising from Local Government Elections and or pre-election matters arising therefrom. That is the law! See Aliyu V. APC & Ors (2022) LPELR – 57345 (SC), per Tijani Abubakar, JSC.
My lords, this Court also enjoys this toga of finality of our decisions in appeals involving Elections into the National and States Houses of Assembly. See Section 246(3) of the Constitution of Nigeria 1999 (as amended), which provision unless and until it is further amended to the contrary, this Court would remain to all intents and purposes the final bus stop, the Court of last resort in all matters touching on Elections into the National and States Houses of Assembly in Nigeria. See Dr. Ahmed Mohammed Salik V. Alhassan Uba Idris & Ors (2014) LPELR-22909 (SC) AT pp. 28-29, per Onnoghen, JSC (as he then was but later CJN). See also Hon. Barambu Umaru Kawuwa & Anor V. Peoples Democratic Party & Ors (2016) LPELR-40344 (CA) per Sir Biobele Abraham Georgewill JCA; Senator Joy Emordi V. Alphonsus Igbeke (2011) 4 SC (Pt. 11) 107 AT p. 115; Rev. Hyde Onuaguluchi V. Ndu (2001) 7 NWLR (Pt. 712) 309.
My lords, we sitting here in the hallowed temple of this penultimate Court in the land, are never hungry for jurisdiction as to condescend to intermeddle into the jurisdiction of the lower Court over and/or in causes and/or matters in which there are no specific provisions of the Constitution of Nigeria 1999 (as amended) and/or any law of the National Assembly donating any jurisdiction to us. In such cases, such as the subject matter in the instant appeal, we do not intermeddle but rather we decline jurisdiction and terminate such incompetent appeal.
It does appear to me, and I so firmly hold, that since it is settled law that appeals from Local Government Election Tribunals charged with the hearing and determination of disputes arising from Elections into Local Government Councils, save the Area Councils of the FCT, terminates at the lower Court sitting as the Election Appeal Tribunal or as maybe designated by the law of the affected State, by same token and for even stronger reasons, all matters or issues arising from Pre-Election matters in relation to Local Government Election, ends at the door step of the lower Court. Thus, the decisions of the lower Court, the High Court of Akwa Ibom State, in all matters or issues pertaining to and arising from pre-election as well as the conduct of elections in relation to Local Government Elections in Akwa Ibom is, I reiterate, final. This Court therefore, lacks the constitutional competence to dabble into any or all of such matters relating to and/or pertaining to either Election and or Pre-Election arising from Local Government Elections in Akwa Ibo State. See Bassey V. PDP & Ors (2021) LPELR – 55714. (CA).
This appeal is therefore, merely a time wasting venture undertaking by the Appellant. It has been stretched for far too long and much too far having even gone all the way to the Apex Court and now back to this Court over not even an election into a Local Government Council in Akwa Ibom State, over which we still have not the jurisdiction, but curiously rather over a Pre-Election matter relating to Local Government Elections, when even issues relating to the substantive Local Government Elections abate at the lower Court.
Honestly, this appeal for whatever it is worth, and it is truly worth nothing in law, appears to me to be more of an ego trip and an overdrive. It is merely an exploratory venture with neither any radar nor compass. It ought to have remained in the mere imagination of the Appellant and his counsel. The decision of the lower Court in so far it relates to Local Government Elections and or pre-election thereto is final. It simply means just that and there is no amount of legal sophistory that can whittle down the enormous power of the finality of the decisions of the lower Court in such matters, and whether interlocutory or substantive, it is final. It is indeed the last bus stop where every passenger, including the Appellant must disembark as there is no more forward journey to go. It is simply put, a journey to nowhere! The word ‘final’ in this regard means that the journey of the case is concluded, terminated and completed. See Rev Hyde Onuaguluchi V. Mr. Ben Collins Ndu & Ors (2001) 7 NWLR (Pt. 712).
See also Hon. Barambu Umaru Kawuwa & Anor V. Peoples Democratic Party & Ors (2016) LPELR – 40344 (CA) per Sir Biobele Abraham Georgewill JCA.
My lords, in law jurisdiction is the authority a Court has to entertain an action or matter brought before it. It is thus, fundamental to adjudication and without it a Court would lack the power to entertain a suit or an appeal or cause or matter over which it had not the requisite jurisdiction, since to do so would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. Thus, once a suit or an appeal, as in the instant appeal, is rendered incompetent in law for whatever reason, that is the end of the matter and it must be put or brought to an end. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA; Okponetus & Ors V. APGA & Anor (2021) LPELR- 55923(CA) per Sir Biobele Abraham Georgewill JCA.
On the whole therefore, I hold, that this appeal arising from the decision of the lower Court, the High Court of Akwa Ibom State in relation to Pre-Election matter in respect of the Primary Election of the 2nd Respondent, PDP for the election of a Chairmanship Candidate for the Abak Local Government Council of Akwa Ibom State held on 24/8/2020 is incompetent. Thus, it is liable to be struck out. See Bassey V. PDP & Ors (2021) LPELR – 55714. (CA). See also Mrs. Olufunke Victoria Ehuwa V. Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 AT p. 576; Muyiwa V. Muhammed (2022) 9 NWLR (Pt.1836) 435.
In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court had per Kayode Eso JSC, (God bless his soul) put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain”
In the circumstances therefore, I hereby resolve the issue raised suo motu by this Court against the Appellant in favour of the 1st-2nd Respondents and hold firmly that this appeal is incompetent and this Court lacks the jurisdictional competence to hear and determine it on the merit. Consequently, it is liable to be struck out, and it is accordingly, hereby struck out for being incompetent.
My lords, be the above finding as it may, let me now proceed to consider the appeal on the merit. Now, issue one for determination in the substantive appeal as distilled by the Appellant and set down for consideration as issue one by this Court in this appeal deals squarely with the issue of the locus standi of the Appellant to institute and maintain the suit before the lower Court against the Respondents in respect of the Primary Elections of the 2nd Respondent for the election of its Chairmanship Candidate for Abak Local Government Council of Akwa Ibom State held on 24/8/2020.
I have taken time to consider the averments of the Appellant in his pleadings and his evidence both in chief and under cross-examination, as well as all the documents relied upon by him at the trial before the lower Court. I have also reviewed the submissions of counsel for the parties in their respective briefs and duly noted the provisions of the statutes and all the decided cases relied upon by them. See pages 2-73; 123-194; 195-232; 287-303; 365-386; 387-420; 580-596; 600-627; 633-648; 650-656 and 658-667 of the Record of Appeal as remitted to this Court from the Supreme Court.
Now, as regards the legal capacity of the Appellant, it is true that in law it is the averments in the pleading of a Claimant, such as the Appellant, that defines both his cause of action, his locus standi as well as the case he intends to put forward against his adversary before the lower Court. See The Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69 per Nnaemeka – Agu JSC. See also Shuaibu & Anor V. Koleosho (2021) LPELR – 53435 (CA) per Sir Biobele Abraham Georgewill JCA. See also …
However, and happily too, the parties to this appeal are ad idem that the Appellant did not participate in the Primary Elections of the 2nd Respondent for the election of its Chairmanship Candidate for Abak Local Government Council of Akwa Ibom State held on 24/8/2020. Furthermore, under cross-examination, the Appellant as PW1 had admitted this crucial fact when he testified inter alia thus:
“The PDP did not clear me and I did not participate in the primaries” See page 376 of the Record of Appeal remitted to this Court from the Supreme Court.
In law, evidence elicited under cross-examination, if on facts as pleaded by either the cross-examining party or the adverse party, is good evidence on which the Court can rely to make appropriate findings of facts and reach legitimate conclusions. However, evidence elicited under cross-examination enjoys neither a higher standard nor is it exempted from the requirement of the law that for evidence to be admissible it must be on facts pleaded. Thus, any evidence given, either in chief or elicited under cross-examination on any fact not pleaded is inadmissible and also goes to no issue and a Court of law would have no power to act on any evidence elicited either from examination-in-chief or under cross-examination if such evidence is not covered by the averments in the pleadings of the parties. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144. See also African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365-366, per Sir Biobele Abraham Georgewill JCA; Gaji V. Paye (2003) 8 NWLR (Pt. 823) 538; Yare V. NSW & IC (2013) 12 NWLR (Pt. 1367) 173; Adekeye V. Adesina (2010) 18 NWLR(Pt.1225) 449; Ojiogu V. Ojiogu (2010) 9 NWLR (Pt. 1198) 1.
I therefore, take it as duly established as fact that the Appellant did not participate in the Primary Elections of the 2nd Respondent, PDP for the election of its Chairmanship Candidate for Abak Local Government Council of Akwa Ibom State held on 24/8/2020. The clear admission by the PW1, the Appellant under cross–examination amounts, in my finding, to admission against his own self-interest and it is perhaps one of the best forms of evidence in proof of facts before the Court. In law, facts admitted or agreed upon by the parties need no further proof. See Adamu V. Ashaka Cement Co. Plc. (2015) LPELR-25610 (CA) per Sir Biobele Abraham Georgewill JCA. See also Wema Bank Plc V. Oyenubi (2018) LPELR-46690 (CA) per Sir Biobele Abraham Georgewill JCA.
Now, the term locus standi, though expressed in Latin, simply refers to the legal capacity of a party to institute proceedings in a Court of law. Thus, all that a Claimant need to do to establish his locus standi is to succinctly plead in his pleadings the entire or sufficient facts establishing his rights and obligations, including or showing all the key elements of locus standi, namely: violation of civil rights and obligations, sufficient interest in the matter and how the interest arose; justiciable enforceable action, all culminating into showing the existence of dispute between the parties. Once, these facts are evident or apparent in the pleadings of a Claimant the issue of locus standi is settled in favour of such a Claimant. In B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206 AT p. 269, the Supreme Court had reiterated inter alia thus:
“A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. To have locus standi the Plaintiffs Statement of Claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action. He has locus standi if he can show that he has a stake in the subject matter or outcome of the case, and must be able to establish that what he suffers or the injury to his person was the consequence of the Defendants act or conduct.”
See also Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Amu & Anor V. Okeaya–Inneh SAN & Anor (2021) LPELR–55660 (CA) per Sir Biobele Abraham Georgewill JCA; Shuaibu & Anor V. Koleosho (2021) LPELR–53435 (CA) per Sir Biobele Abraham Georgewill JCA; Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688; Pacers Multi-Dynamics Ltd V. M.V. Dancing Sister (2012) 4 NWLR (Pt. 1289) 169 AT p. 189;
Now, generally, locus standi is an equitable plea and therefore, must be pleaded and raised in the pleadings of the Defendant before it could be countenanced and determined either in limine as a preliminary issue or along with the substantive trial. However, over the years the issue of locus standi has been elevated to a threshold issue of jurisdiction, and therefore, can be raised at any stage of the proceedings with or without the statement of defence and once raised, and being a jurisdictional issue, it is the law that it must be considered and determined by the Court before which it was raised one way or the other before the merit or otherwise of the substantive suit can be determined. See Madukolu & Ors V. Nkemdilim (1962) 1 All NLR (Pt. 4) See also NDIC V. CBN & Anor (2002) 7 NWLR (Pt. 766) 272 AT p. 296; Nigerian Agip Oil Co. Ltd V. Kemmer (2001) NWLR (Pt. 716) 506 AT pp. 521-523; Shell Petroleum Development Co. Nig. Ltd V. Goodluck (2008) 14 NWLR (Pt. 1107) 294 AT p. 299.
So, on the duly and indisputably established fact to the effect that the Appellant did not participate in the Primary Elections of the 2nd Respondent, PDP for the election of its Chairmanship Candidate for Abak Local Government Council of Akwa Ibom State held on 24/8/2020 and the position of the law in relation to the issue of locus standi, can it be said that the Appellant disclosed his locus standi to institute and maintain the suit against all or any of the Respondents? I think not!
It seems clear to me that the Appellant having not participated in the Primary Elections of the 2nd Respondent for the election of its Chairmanship Candidate for Abak Local Government Council of Akwa Ibom State held on 24/8/2020, he was clearly and thereby deprived of any locus standi to institute the suit relating to the said Primaries of the 2nd Respondent. He was and still is a mere meddlesome interloper notwithstanding that he had earlier bought the Expression of Interest and Nomination Form of the 2nd Respondent but yet never participated in the said Primaries of the 2nd Respondent held on 24/8/20220. This appears to me to be the trite position of the law. See Aliyu V. APC & Ors (2022) LPELR – 57345 (SC), where the Supreme Court per Ogunwumiju JSC had stated emphatically inter alia thus:
“Whereas in this case, it is a complaint about the conduct of party primaries precisely about the conduct of the political party, the Appellant cannot complain against the manner in which a party primary in which he did not participate was conducted. He has no locus to do so.”
See also Aisha Jummai Alahassan & Anor V. Mr Darius Dickson Ishaku & Ors (2016) LPELR-40083 (SC) AT p. 74 per Okoro JSC; Muyiwa V. Muhammed (2022) 9 NWLR (Pt. 1836) 435.
Now, taking all the averments of the Appellant in his pleadings as well as his evidence, both oral and documentary in chief and under cross-examination as PW1, I find as fact and hold firmly that the Appellant failed woefully to disclose any locus standi residing in him to institute and maintain the Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors before the lower Court. It follows therefore, and I so firmly hold, that Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors was clearly incompetent and ought not to have been heard and determined on the merit by the lower Court. It should have been struck out for being incompetent by the lower Court.
In the light of all I have stated and held above, issue one for determination is hereby resolved against the Appellant in favour of the Respondents, and I hold firmly that the Appellant lacked the locus standi to institute and maintain the Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors, and which suit is thereby rendered grossly incompetent.
ISSUES TWO, THREE AND FOUR
My lords, having arrived at the inescapable conclusion that the Appellant’s suit is grossly incompetent, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the Appellant’s suit and consider the issues two, three and four for determination in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent suit? I think we need not embark on a such a wasteful journey leading to nowhere to proceed to consider issues two, three and four for determination on the merit.
In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365-366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had per Sir Biobele Abraham Georgewill JCA, opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the above statement of the law I made and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the Appellant’s suit filed without competence. In the circumstances therefore, having held firmly that the Appellant’s suit was incompetent, it follows that both the lower Court and this Court lack the jurisdiction to consider and determine Appellant’s suit on the merit. This is so because in law once a suit is found to be incompetent, the proper order to make is one striking it out. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258.
Thus, issues two, three and four for determination dealing with the merit or otherwise of the Appellant’s suit have become merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See also Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497; Uba Plc V. Dana Drugs Ltd (2018) LPELR-44103 (CA), per Sir Biobele Abraham Georgewill JCA.
On the whole therefore, having resolved the issue raised suo motu by this Court relating to the competence or otherwise of this appeal against the Appellant in favour of the 1st-2nd Respondents and having also resolved issue one for determination against the Appellant in favour of the 1st-2nd Respondents, and having discountenanced issues two, three and four for determination as having become merely academic, I hold that the appeal is incompetent and thus, liable to be struck out, and so also is the Appellant’s Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors liable to be struck out for being incompetent.
In the result, it is hereby ordered as follows:
1. This Appeal No. CA/C/119/2021: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors, is hereby struck out for being incompetent.
2. The Appellant’s Suit No. HU/293/2020: Patrick Christopher Iwok V. Ekerete Etim Nyang & Ors before the lower Court is hereby struck out for being incompetent.
3. There shall be cost of N300,000.00 against the Appellant in favor of each of the 1st and 2nd Respondents.
SYBIL NWAKA GBAGI, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA. I am in complete agreement with His Lordship’s conclusion that the claim filed by the Appellant in Suit No. HU/293/2020 is incompetent and rightly struck out.
I too therefore tow the same line with my learned brother in striking out the Appellant’s appeal No. CA/C/119/2021 for being incompetent.
It is a trite fundamental principle that where an action is found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it, the only viable order that can be made by the Court is that of striking out. See Ofem Obono & Anor. V. Ubi Obono (2016) LPELR-41198; Peoples Democratic Party (PDP) V. Obasi Ekeagbara & Ors. (2016) LPELR-40894.
I abide by the order as to cost.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the leading judgment delivered by My Lord and learned brother Biobele Abraham Georgewill, JCA. The stand of my learned brother on the issues raised and dealt with before us and the reasoning and conclusion by My Lord tallied with mine. I therefore adopt them in totality.
The Supreme Court remitted this appeal to this Court to rehear and determine same. The Apex Court in my view had narrowed down the issues for determination in the case of BARR ALIYU V. APC & ORS (2022) LPELR-57345 (SC) wherein it inter alia held; From the provisions of Section 103 of the Electoral Act, it is very clear that elections into Local Government offices conducted under the State Laws cannot find their way to the Court of Appeal or Supreme Court under any guise, this is therefore so as rightly found by the lower Court.
This has ended the matter. The pronouncement “under any guise” says it all.
From the record, the Appellant did not participate in the Primary Elections conducted by the 2nd Respondent on 24/08/2020 for the election of the Chairmanship candidate for Abak Local Government of Akwa Ibom State. In his words during cross-examination by the learned counsel to the 1st Respondent at page 376, the Appellant then as PW1 said;
The PDP did not clear me and I did not take part in the primaries.
When cross-examined by the learned counsel to the 2nd Respondent at page 377, the appellant said;
As at 24/08/2020, I was aware of the fact I was not cleared for the primaries.
After the primaries on 24/08/2020, there was no other time that I stood for the PDP Local Government Primaries for Abak L.G. Chairmanship.
The Supreme Court in DIN V. AFRICAN NEWSPAPERS OF NIG LTD (1990) LPELR-947 (SC) inter alia held:
“Resort could be had to the elementary rule of pleading that what has been admitted requires no further proof. This is supported by Section 74 of the Evidence Act which provides as follows:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.” In Chief Nwizuk and Ors V. Enevok and Ors (1953) 14 WACA 354, it was held that admissions under this section are not confined to written nor documentary admissions. They include oral admissions if made clearly in open Court during the proceedings. Admissions may also be by implication where there is a failure positively to deny an allegation”.
It is for the reasons given above and the fuller reasons given by my learned brother that I, too found the appeal incompetent and is struck out.
I abide by the consequential orders in the leading judgment.
Appearances:
Kabir Akingbolu, Esq., with him, Samuel Ogala, Esq. and Tamunotonye Ekundayo, Esq. For Appellant(s)
Utibe Nwoko, Esq. – for 1st Respondent
Akpadiah Ebitu, Esq. – for 2nd Respondent
Vaniah Agbon, Esq, holding the brief of Ekemini Udim, Esq. – for 3rd Respondent. For Respondent(s)
