JIBRIN NDAGI BABA v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13057(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2019
CA/A/161/2019
RATIO
JURISDICTION: TERRITORIAL JURISDICTION: WHERE A CASE SHOULD BE FILED IN ACCORDANCE WITH TERRITORAIL JURISDICTION PRINCIPLE
In, UTOO v. APC & ORS (2018) LPELR-44352(SC) the Supreme Court per Eko JSC, held thus;
“…I notice also that the cause of action took place entirely in Makurdi/Guma Federal Constituency in Benue State. The suit, the subject of this appeal, was filed at the High Court of the Federal Capital Territory, Abuja which has no extra-territorial jurisdiction over any cause of action arising entirely in Benue State. The statement of the law by Ogundare JSC, in DALHATU v. TURAKI & ORS (2003) LPELR – 917 (SC), that the High Court of the Federal Capital Territory, Abuja lacked extra-territorial jurisdiction to entertain matters that the cause of action arose outside the Federal Capital Territory should have weighed in on the Plaintiff/Appellant’s counsel in the choice of the High Court of the Federal Capital Territory, Abuja to file the suit the subject of this appeal. None of the parties, unfortunately saw the point that the combination of MADUKOLU v. NKEMDILIM (supra) and DALHATU v. TURAKI, (supra) would have rendered the plaintiffs suit dead on arrival”.PER ABDU ABOKI, J.C.A.
JURISDICTION: TERRITORIAL JURISDICTION: A COURT IN ONE STATE DOESNT HAVE JURISDICTION OVER WHAT OCCURRED IN ANOTHER STATE
This is because a Court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another state; See RIVERS STATE GOVERNMENT OF NIGERIA V. SPECIALIST KONSULT (SWEDISH GROUP) (2005) 2 S.C. (PT.11) 121.
In DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) 310; OGUNDARE, JSC stated the position on the matter inter alia thus:-
“I have taken pains to discuss this judgment on territorial jurisdiction of a Court in view of recent developments whereby litigants rather than suing in the proper Courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their Court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.”PER ABDU ABOKI, J.C.A.
JURISDICTION: WHEN THE ISSUE OF TERRITORIAL JURISDICTION CAN BE RAISED
The issue of territorial jurisdiction of the trial Court can be raised at any time, even in the Supreme Court for the first time without leave. See SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) AT 460. In the instant case the primary election, the subject matter that lead to the 3rd Respondent’s action at the trial Court was conducted in Niger State. This is not contested. The action was instituted at the FCT High Court Abuja, which has no territorial jurisdiction over the action conducted in Niger State by virtue of Section 255 of the CFRN 1999. See also the case of MAILANTARKI (SUPRA).PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
JIBRIN NDAGI BABA Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC))
3. HON. ISAH MOHAMMED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th February, 2019 by Hon. Justice K. N. Ogbonnaya in Suit No. FCT/HC/CS/244/2018.
The Appellant herein was the 2nd Defendant at the trial Court, while the 3rd Respondent was the Plaintiff. The 1st and 2nd Respondents were the 1st and 3rd Defendants respectively.
The Brief summary of the fact of this case that led to this appeal was that, by an originating summons filed on 15th November, 2018 the 3rd Respondent as Plaintiff at the trial Court sought the determination of the sole question as can be found at pages 1-2 of the record of appeal. In anticipation of favorable answers, the 3rd Respondent also sought for the reliefs as can be found at pages 2-3 of the record of appeal.
The originating summons is supported by an affidavit of 23 paragraphs and a 13 paragraphs further affidavit in support of originating summons filed on 3/12/2018.
The 3rd Respondent alleged that in preparation for the March 2019 General Election he contested and won the primaries of
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the 1st Respondent and was duly declared and returned as the winner in accordance with the Constitution, Guidelines of the 1st Respondent and the 2nd Respondent’s Guidelines for the conduct of the 2019 General elections. In further compliance with the requirements of the Electoral Act and the Guidelines of the 2nd Respondent, the 3rd Respondent was given form CF001 to fill out and return to the 1st Respondent for onward submission to the 2nd Respondent.
The 3rd Respondent duly filled the said form CF001 and submitted it to the 1st Respondent. The 1st Respondent filled Form CF002A and submitted same to the 2nd Respondent at Abuja.
However, even before approaching the lower Court he (the 3rd Respondent) alleged that he became aware of the sinister moves within the headquarters of the 1st Respondent at the FCT Abuja to subvert his mandate and replace his candidature. The 3rd Respondent promptly and duly wrote through his solicitor a petition addressed to the national chairman of the 1st Respondent drawing his attention to the sinister attempt, evidence later showed that the 3rd Respondent fear were real and the attempt to unlawfully
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substitute his candidature by the 1st Respondent was successfully accomplished. The name of the 3rd Respondent was substituted and replaced with that of the Appellant at the headquarters of the 1st Respondent in Abuja.
The 3rd Respondent became aware of the above fact on 2nd November, 2015 when the 2nd Respondent published the names of the candidates to contest for the Lavun Local Government State Assembly Constituency of Niger State under the platform of the 1st Respondent.
The 3rd Respondent later approached the High Court of the federal capital territory Abuja for redress.
The Appellant on the other hand alleged that following his emergence as the 1st Respondent’s candidate for election into the office of member representing Lavun State Constituency in Niger State House of assembly on the 6th October, 2018 his name was submitted by the 1st Respondent to the 2nd Respondent as its candidate for the election scheduled for 9th March, 2019.
The 3rd Respondent approached the FCT High Court vide an originating summons praying the Court amongst other things for an order setting aside the nomination of the Appellant.
The trial Court gave its judgment in favour of the 3rd Respondent.
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Dissatisfied with the said judgment of the trial Court, the Appellant who was the 2nd Defendant at the trial Court appealed to this Court vide his notice of appeal dated and filed on 21/2/2018. The said notice of appeal which appears on pages 345 of the record of appeal contains 11 grounds of appeal.
The record of appeal was compiled on 8th February, 2019 and transmitted to the Court on 1/3/2019. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of Court.
The Appellant’s brief of argument is dated 7th March, 2019 and filed on the same date. The Appellant also filed Appellants’ Reply Brief dated and filed on 25th March, 2019. The 1st Respondent’s undated brief of argument was filed on 21st March, 2019. While the 3rd Respondent’s Brief of Argument, is dated and filed on the 22nd March, 2019. The 3rd Respondent also filed a notice of preliminary objection to the hearing of the appeal dated 22nd March, 2019.
On 28th March, 2019, the appeal was heard before the Court. The Appellant’s Counsel adopted the Appellants’ brief of argument
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as well as the Reply Brief. He urged the Court to allow the appeal. The 1st Respondent’s counsel adopted the 1st Respondent’s brief of argument and urged the Court to determine this appeal at its discretion. The 3rd Respondent’s Counsel on his part adopted the 3rd Respondent’s brief of argument and urged the Court to dismiss the appeal for lacking in merit.
The Appellant from his eleven (11) grounds of appeal distilled five issues for determination as follows:
1. Whether the High Court of the federal capital territory, Abuja had the territorial jurisdiction to have entertained the suit?
2. Whether in view of the allegation of crime contained in the 3rd Respondent’s affidavit, the trial judge was right to have determined the suit on affidavit evidence?
3. Whether the trial Court was clothed with jurisdiction to entertain and determine the 3rd Respondent’s suit?
4. Whether the trial Court was right to have relied on exhibit F and I in granting all the reliefs claimed at the lower Court?
5. Whether in view of the hostile and irreconcilable conflicting affidavits evidence of the parties before it, the trial Court was right in not
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making an order calling for pleadings?
The 1st Respondent’s counsel on its part distilled a lone issue for determination as follows;
1. Whether having regard to the facts, circumstances and evidence before it, the learned trial Court was right in holding that the 3rd Respondent had proved his claims and is entitled to the reliefs.
While, the 3rd Respondent on his part distilled two issues for determination as follows;
1. Whether the lower Court had jurisdiction to hear and determine the case of the 3rd Respondent/Plaintiff as presented before the lower Court.
2. Whether on the facts and evidence presented before the lower Court, the Respondent was entitled to judgment?
I will determine this appeal on the basis of the two issues raised in the 3rd Respondent’s brief of argument.
In the determination of this appeal, the preliminary objection raised by the 3rd Respondent’s counsel will be first considered.
PRELIMINARY OBJECTION
The grounds of the said preliminary objection are as follows;
a. Grounds 1 and 9 of the notice of appeal are incompetent and should be struck out as leave of this Court was not sought and
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obtained before filing the notice and grounds of appeal on issues which did not arise from the judgment of the lower Court.
b. Grounds 1 to 10 of the notice of appeal dated 21st February, 2019 are incompetent for being vague and in general terms as well as being argumentative and offending Order 7 Rule 2 (2 & 3) and 3 of the Court of Appeal Rules 2016.
Arguing the preliminary objection, learned counsel to the 3rd Respondent submitted that the Appellant’s grounds 1 and 9 are incompetent. He argued that the power of this Court to rehear a matter is confined to rehearing on the record of proceedings. It does not mean a re-inquiry into the facts of the case nor does it entail retrying the case and making a new case different from the one at the trial Court. he referred the Court to the cases of; ZARIA V. MAITUWO (1987) 3 S.C 47. OREDOYIN V. AROWOLO (1989) 4 NWLR PT. 114 172 AT 211.
Learned counsel for the 3rd Respondent conceded that in certain situations and upon fulfillment of some conditions this Court or the trial Court may grant leave to argue new issues on appeal. He contended that the leave granted to the Appellant by this
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Court to argue new issues of law is only in respect of grounds 2 to 8 of the grounds of appeal.
He argued that grounds 1 and 9 of the notice of appeal also raised new issues which were not canvassed before the trial Court and the leave of this Court was not sought and obtained before the said grounds were filed, thus making those grounds, issues formulated there from and the argument canvassed thereon incompetent. He referred the Court to the cases of;
OREDOYIN VS. AROWOLO (SUPRA)
ANTHONY NWACHUKWU VS. STATE 2007 LPELR-8075SC
PDP & ANOR VS. INEC & ORS 2012 LPELR ? 8409 CA
OBAJIMI AND ORS VS. OLOYE & ANOR 2017 LPELR-42709 CA.
He contended that ground 1 raises for the first time issue of jurisdiction of the trial Court (i.e limitation) under Section 285 (9) of the 1999 Constitution of Nigeria (4th Alteration Act) of 2017, which was not canvassed before the lower Court. More so, the said ground of appeal is also a ground of mixed law and fact of which appeal is not as of right. Therefore, having not sought and obtained the leave of this Court or the trial Court before raising same, the issue is
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incompetent and liable to be struck out. He referred the Court to Section 242 of the 1999 Constitution of Nigeria and the case of SHITTU VS P.A.N LIMITED 2018 15 NWLR PT. 1462 195 AT 212.
He maintained that ground 9 of the notice of appeal also introduces for the first time the issue of allegation of crime which is not borne out of the record of appeal and not raised by either of the parties nor pronounced upon by the trial Court.
He submitted that the effect of the forgoin
