MALL ABDULJELIL MOMOH YAHAYA v. ALL PROGRESSIVES CONGRESS & ORS (2019)

MALL ABDULJELIL MOMOH YAHAYA v. ALL PROGRESSIVES CONGRESS & ORS

(2019)LCN/13058(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2019

CA/A/182/2019

RATIO

JURISDICTION: WHAT IS TERRITORIAL JURISDICTION?

There is no doubt that the learned trial judge struck out the matter because it lacked territorial jurisdiction. What then is territorial jurisdiction? It is the jurisdiction over cases arising in or involving persons residing within a defined territory. In the case of IBORI VS. OGBORU (2005) 6 NWLR (PT. 920) 102, it was stated that territorial jurisdiction has to do with the area a matter arises or parties reside. A Court no doubt lacks the competence to adjudicate over matters and persons outside its territorial jurisdiction.PER MOHAMMED BABA IDRIS, J.C.A.

JURISDICTION: TERRITORIAL JURISDICTION: IMPORTANCE

Oputa JSC (as he then was) in TUKUR VS. GOVT GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 stated the importance of territorial jurisdiction in these words:

“… the first is the legal capacity, the power and authority of a court to hear and determine a judicial proceeding – in the sense that it has the right and power to adjudicate concerning the particular subject-matter in controversy. The second is the geographical area in which and over which the legal jurisdiction of the Court can be exercised. This area of authority is called the area of geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction.”

See also DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) 310.PER MOHAMMED BABA IDRIS, J.C.A.

TERRITORIAL JURISDICTION TO HANDLE PRE-ELECTION MATTERS

When it comes to pre-election matters, such as the instant case, I am of the view that the issue has been settled by the decision in MAILANTARKI VS. TONGO (2018) 6 NWLR (PT. 1614) 69 @ 84-88 when the Apex Court stated as follows:

“The Constitution has never intended it to be a High Court at large with jurisdiction over matters outside its territory. In the instant case, the cause of action, pleaded in the originating summons, was the primary election of the All Progressive Congress (APC) conducted on the 8th December 2014 in Gombe-Kwami-Funakaye Federal Constituency at the constituency headquarters, Malam Sidi, in Gombe State. The protests and appeal emanating from the said primary election were merely incidental to or matters arising from the said primary election. The appeal committee of the APC heard the appeal on the 13th December 2014 and wrote its report on 15th December 2014. All these took place in Gombe, Gombe State. No aspect of the primary election and the appeal there took place in the Federal Capital Territory, except that the NWC or NEC of APC submitted the name of the 1st Respondent to INEC whose headquarters is in the FCT, Abuja. [Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Rivers State Government of Nigeria vs. Special Konsult (Swedish Group) (2005) 7 NWLR (Pt. 923) 145 referred to] (Pp. 83, paras F – G; 84, paras F – G; 86, paras, D – G; 88, paras. E – G).PER MOHAMMED BABA IDRIS, J.C.A.

JURISDICTION: HOW TO DETERMINE JURISDICTION IN MATTERS BEGUN BY ORIGINATING SUMMONS

Because in matters begun by originating summons, it is the affidavit in support of the application that is used to determine jurisdiction, I shall now refer to the said affidavit. See PDP VS. ABUBAKAR (2007) 5 NWLR (PT. 1022) 515; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427; NASHTEX INT. LTD VS. HABIB (NIG.) BANK LTD (2007) 17 NWLR (PT. 1063) 308; ACTION CONGRESS VS. INEC (2007) 18 NWLR (PT. 1065) 50; VEEPEE IND. LTD VS. COCOA IND. LTD (2008) 13 NWLR (PT. 1105) 486.PER MOHAMMED BABA IDRIS, 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

MALL ABDULJELIL MOMOH YAHAYA – Appellant(s)

AND

1. ALL PROGRESSIVES CONGRESS

2. ALH. ABDULLAHI IBRAHIM ALI

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. S. Adepoju of the High Court of Federal Capital Territory, Abuja Judicial Division, delivered on the 14th February, 2019 striking out the suit of the Appellant for want of territorial jurisdiction. (See pages 476 ? 498 of the Record of Appeal).

The Appellant, dissatisfied with the judgment of the Court below, filed his Notice of Appeal on the 27th February, 2019, with 4 (four) Grounds of Appeal. (See pages 499 ? 507 of the Records of Appeal).

The Appellant, as the Claimant in the Court below, by Originating Summons dated and filed 31st October, 2018 sought for the determination of 5 (five) questions, and upon the determination of these questions claimed 8 (eight) reliefs against the Respondents. (See pages 1 ? 124 of the Record of Appeal).

The Originating Summons is supported by a 19 – paragraph affidavit with relevant documents marked as Exhibits A, B, C, D, El, E2, F, G, H and I. (See pages 12 ? 112 of the Record of Appeal).

?The Appellant also filed a Written Address in

support of the Originating Summons in urging the Court below to find in favour of the Appellant. (See page 113 ? 123 of the Record of Appeal).

The summary of the facts in this suit is that the Appellant was an aspirant and allegedly won the Primary Election for the nomination as candidate of the 1st Respondent in respect of Ankpa/Omala/Olamaboro Federal Constituency of Kogi State in the 2019 General Election. The 1st Respondent, instead of forwarding the name of the Appellant to the 3rd Respondent as the 1st Respondent’s candidate, purportedly forwarded the name of the 2nd Respondent to the 3rd Respondent as her candidate for Ankpa/Omala/Olamaboro Federal Constituency of Kogi State in the 2019 General Election.

The 1st Respondent in opposition to the suit of the Appellant filed a Notice of Preliminary Objection praying the Court below for an order declaring the suit of the Appellant incompetent and for the Court below to decline to hear and determine the suit of the Appellant as constituted. The Preliminary Objection was accompanied by 2 (two) exhibits and a written address. (See pages 380 ? 398 of the Record of Appeal).

The Appellant filed a Reply on Points of Law to the Notice of Preliminary Objection of the 2nd Respondent. (See pages 399 ? 415 of the Record of Appeal).

The 2nd Respondent filed a counter-affidavit and written address in opposition to the claims of the Appellant. (See pages 416 ? 462 of the Record of Appeal).

The 3rd Respondent did not file any process in this suit in the Court below.

At the hearing of the suit of the Appellant in the Court below on the 24th day of January, 2019 and upon taking the addresses of the parties, the learned trial judge subsequently delivered judgment striking out the suit of the Appellant for want of territorial jurisdiction.

The Appellant filed his brief which was deemed as properly filed and served on the 19th of March, 2019. The 1st Respondent filed its brief on the 21st of March, 2019 and the 2nd Respondent filed his brief on the 22nd of March, 2019. The Appellant filed his Reply brief on the 26th of March, 2019.

The parties adopted their respective briefs at the hearing of the appeal.

In the Appellant’s brief, these issues were formulated for the determination of the Court:

1. Whether the Court below had the territorial jurisdiction to hear, entertain and determine the suit of the Appellant. (Distilled from Ground 1 of the Notice of Appeal filed 27th February, 2019)

2. Whether it is not a miscarriage of justice when the Court below, in spite of the provision of Section 22(3) of the Federal High Act and binding judicial precedents refused the transfer of the suit of the Appellant to the Federal High Court, Kogi State Judicial Division sitting at Lokoja, (Distilled from Ground 2 of the Notice of Appeal filed 27th February, 2019).

3. Whether the trial Court was right to have held that it would have ordered for exchange of pleadings by the parties were it not that it lacked territorial jurisdiction to hear and determine the suit of the Appellant. (Distilled from Ground 4 of the Notice of Appeal filed 27th February, 2019)

4. Whether having regard to the time limitation for the hearing and determination of the suit of the Appellant and the documents and facts in this suit this Honourable Court would invoke its powers under the provisions of Section 15 of the Court of Appeal Act to Hear and determine the suit of the

Appellant on the merit. (Distilled from Grounds 3 of the Notice of Appeal filed 27th February, 2019).

On the first issue, it was argued that the complaint of the Appellant was the refusal of the 1st Respondent to adhere to the findings of its appeal committed which received the Appellant’s petition in Abuja and subsequently issue its report affirming the due nomination of the as the candidate of the 1st Respondent for Ankpa/Omala/Olamaboro Federal constituency of Kogi State in the 2019 general election. That the Court below had the territorial jurisdiction to hear and determine the claims of the Appellant.

On the second issue, it was argued that the provision of Section 22 (3) of the Federal High Court Act being an enactment of the National Assembly was binding on all Courts in Nigeria, and that the trial Court having arrived at the conclusion that it lacked territorial jurisdiction, it should have transferred the suit to the Lokoja Division of the Federal High Court of Kogi State.

?On the third issue, it was contended that the Court should have given due regard to the result of the primary election organised and affirmed by the National Working

Committee of the political party that is recognised for purposes of determining the duly nominated candidate by a political party.

On issue four, this Court was urged to exercise its powers under Section 15 of the Court of Appeal Act and determine this matter on the merits. The Court was urged to allow the appeal and set aside the judgment of the Court below. These authorities were relied on:

LIST OF AUTHORITIES

STATUTES:

1. S. 40 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

2. S. 221 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

3. S. 222(f) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

4. S. 285 (10) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (FOURTH ALTERATION, NO. 21 ACT 2017)

5. S. 15 OF THE COURT OF APPEAL ACT CAP. C36 LFN

6. S. 31 (1) OF THE ELECTORAL ACT 2010 (AS AMENDED)

7. S. 22(3) OF THE FEDERAL HIGH COURT ACT

8. S. 254 OF THE FEDERAL HIGH COURT ACT

9. S. 259 OF THE FEDERAL HIGH COURT ACT

10. S. 87(4)(c) OF THE ELECTORAL ACT 2010 (AS AMENDED)

11. S. 87 (9) OF THE ELECTORAL ACT 2010 (AS AMENDED)

12.ARTICLE 20(iii) OF THE ALL PROGRESSIVE CONGRESS’ CONSTITUTION.

CASES:

1. ADAMS VS. UMAR (2009) 5 NWLR (PT. 1133) 41 AT 109.

2. UNEGBU VS. UNEGBU (2004) 11 NWLR (PT. 884) 332.

3. OMBUGADU VS. CPC (2012) 42 WRN.

4. ABDULKADIR VS. MAMMAN (2003) 14 NWLR (PT. 839) 1 AT 31.

5. UZODINMA VS. IZUNASO (2011) (NO. 2) 17NWLR (PT. 1275) 30 AT 66.

6. TUKUR VS. UBA (2013) 4 NWLR (PT. 1343) 90 AT 163.

7.ABEGUNDE VS. O. S. H. A. (2015) 8 NWLR (PT. 1461) 314 AT 366.

8.ODEDO VS. PDP (2015) 33 WRN 1 AT 39 LINES 10 – 40.

9. AGI VS. PDP & ORS (2016) 12 MJSC 1 AT 86 87 LINES G – A.

10. EMENIKE VS. PDP (2012) 48 WRN 1 AT 31 -32 LINES 45 – 10.

11. OGUEBEGO VS. PDP (2016) 4 NWLR (PT. 1503) 446.

12. CPC VS. LADO (2011) 4 LRECN 126 AT 136 RATIO 19.

13. MAILANTARKI VS. TONGO (2018) 6 NWLR (PT. 1614) 69.

14. DALHATU VS. TURAKI (2003) 42 WRN 45.

15. ZAKIRAI VS. MUHAMMAD (2017) 17 WLR (PT. 1594) 181.

16. ASSOCIATED DISCOUNT HOUSE LIMITED VS. AMALGAMATED TRUSTEES LIMITED (2006) 7 MJSC 214.

17. CHEVRON VS. FAMUYE (2012) 12 WRN 176 AT 108 – 181 LINES 29 – 6.

18. INAKOJU VS. ADELEKE (2007) 2 MJSC 1 AT PAGE 89 PARAS B.

– C ; PAGE 222 PARA A – B.

19. DAPIANLONG VS. DARIYE (2007) 27 WRN 1 AT 70 LINES 35 – 45.

20. OKORONKWO VS. FRN (2014) 11 WRN 127 AT PAGES 151 – 152 LINES 23 – 15

21. LAU VS. PDP (2018) 4 NWLR (PT. 1608) 60

22. PDP VS. ORANEZI (2018) 7 NWLR (PT. 1618) 245

23. UGWUEGEDE VS. ASADU (2018) 10 NWLR (PT. 1628) 460.

24. LAU VS. PDP (SUPRA) RATIO 11, 76 – 77.

25. MATO VS. HEMBER (2018) 5 NWLR (PT. 1612) 258.

26. APC VS. KARFI (2018) 6 NWLR (PT. 1616) 479.

The 1st Respondent distilled these issues for the determination of the Court:

1. Whether the trial Court was right to hold that it lacked territorial jurisdiction to determine the claim of the Appellant arising from the conduct of the 1st Respondent’s primary election held on the 4th October, 2018 at Ankpa in Ankpa Local Government of Kogi State outside Federal Capital Territory Abuja. (Distilled from grounds 1 and 4 of the Notice of Appeal).

2. Whether the Court can make any order when it lacks jurisdiction to entertain a suit in the first place. (Distilled from ground 2 of the Notice of Appeal)

3. Whether having regard to the provisions of Section 285 of the 1999 Constitution of NIgeria

and the fact of this case couple with the lack of jurisdiction, this Court can invoke its provision under Section 15 of the Court of Appeal Act to hear and determine this case. (Distilled from ground 3 of the Notice of Appeal).

On the first issue, it was argued that the trial Court lacked territorial jurisdiction to determine any issue arising from the primary which was held in Ankpa Kogi State as the territorial jurisdiction of the FCT High Court did not extend to Kogi State, being the venue of the complained primaries for Ankpa/Omala/Olamaboro Federal Constituency of Kogi State.

It was further argued that the case of the Appellant was statute barred in view of the provision of Section 285(9) of the Constitution.

On the second issue, it was argued that the trial Court could not make an order of transfer of the matter to the Federal High Court, and that the trial Court was right in refusing to order pleadings because it held that it lacked territorial jurisdiction.

?On the third issue, it was argued that this Court cannot invoke the provision of Section 15 of the Court of Appeal Act as the law could

only be activated where the trial Court had the requisite jurisdiction over the subject matter of the suit.

The Court was urged to dismiss the appeal and uphold the judgment of the learned trial Court. These authorities were relied on.

LIST OF AUTHORITIES

1. RIVERS STATE GOVERNMENT OF NIGERIA VS. SPECIAL KONSULT (SWEDISH GROUP) (2005) 7 NWLR (PT. 923) 145

2. MAILANTARKI VS. TONGO (2018) 6 NWLR (PT. 1614) PG. 69 (SC).

3. EJIOFODOMI VS. OKONKWO (1982) 1 ALL NWLR (PT. 1) 285.

4. DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) 310

5. RIVERS STATE GOVERNMENT OF NIGERIA VS. SPECIAL KONSULT (SWEDISH GROUP) (2005) 7 NWLR (PT. 923) 145 referred to) (PP. 83 PARAS F ? G; 84 PARAS F-G; 86 PARAS D G; 88 PARAS E G).

6. TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117).

7. JACK VS. UNAM (2004) 5 NWLR (PT. 865) 208 AT 225

8. ALL PROGRESSIVES CONGRESS VS. CHIEF IKECHI EMENIKE & 2 ORS.

9. HON. DORIS OLAYEMI UBOH VS. DR. (MRS) MARIAN NNEAMAKA OGOH ALI & 2 ORS.

10. MAINSTREET BANK CAPITAL LTD VS. NIG. RE. (2018) 14 NWLR (PT. 1640) PG. 423 AT 455.

11. MADUKOLU VS. NKEMDILIM

(1962) 2 SCNLR 341

12. LAGOS STATE VS. A ? G, FEDERATION (2014) 9 NWLR (PT. 1412) 217.

13. TIZA VS. BEGHA (2005) 15 NWLR (PT. 949) 616 referred to. P. 455 PARAS A ? B.

14. HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547

15. SALIM VS. CPC (2013) 6 NWLR (PT. 1351) 501 AT 524 ? 525 PAR H ? C.

16.WAMBAI VS. DONATUS (2015) ALL FWLR (PT. 752) 1673 AT 1696 PARA B ? C.

17. GWEDE VS. INEC (2014) LPELR ? 23763 (SC)

18. INDEPENDENT NATIONAL ELECTORAL COMMISSION VS. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR ? 24839 (SC)

19. BOARD OF TRADE VS. LAYSER IRVINE & CO. LTD (1972) A. C. 610 AT 628

20. AWOLEYE VS. BOARD OF CUSTOMS & EXCISE (1990) 2 NWLR (PT. 133) PG. 490 AT 493 PARAS B – D

21. OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482) PG. 205 AT PP. 299 – 300 PARAS H – A (SC)

22. OKECHUKWU VS. INEC (2014) 17 NWLR (PT. 1436) 255

23. PATIL VS. F. R. N. (2016) 8 NWLR (PT. 1515) 483

24. EJIOFODOMI VS. OKONKWO (1982) 1 ALL NLR (PT. 1) 285.

25. UCHA VS. ELECHI (2012) 13 NWLR (PT. 131) PG. 330 (SC).

26. OKORONKWO VS. FRN (2014) 11 WRN 127 AT PAGES

151 – 152.

27. ALFA VS. AIDOKO ATTAI & 2 ORS (2018) 5 NWLR (PT. 1611) PG. 54 (SC).

28. ASOGWA VS. PDP (2013) 7 NWLR (PT. 1353) PG. 207 AT P. 255 PARAS B ? C (SC).

29. PATIL VS. FRN (2016) 8 NWLR (PT. 1515) PG. 483.

LIST OF STATUTES

1. 1999 CONSTITUTION OF NIGERIA AS AMENDED.

2. ELECTORAL ACT 2010 AS AMENDED.

The 2nd Respondent formulated and argued the same issues that were formulated by the 1st Respondent. The arguments were substantially the same, and the cases relied on by both Respondents were the same. For the benefit of doubt, the issues argued by the 2nd Respondent as formulated were as follows:

2. Whether the Court can make any order when it lacks jurisdiction to entertain a suit in the first place. (Distilled from

ground 2 of the Notice of Appeal)

3. Whether having regard to the provision of Section 285 of the 1999 Constitution of Nigeria as amended and the fact of this case couple with the lack of jurisdiction, this court can invoke its provision under Section 15 of the Court of Appeal Act to hear and determine this case. (Distilled from ground 3 of the Notice of Appeal).

The Appellant filed reply briefs to the 1st and 2nd Respondents’ briefs wherein it was argued inter alia, that the question whether or not the suit of the Appellant was statute barred was resolved by the trial Court in favour of the Appellant and that the Respondents neither filed a Respondent Notice or a Cross-appeal in this suit, and hence, could not be heard to challenge the decision of the Court in any guise.

It was further argued that by the provision of Order 41 Rule 6 of the High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules 2018, the Court could transfer the suit to the Federal High Court in Lokoja, Kogi State.

The Court was urged to allow the appeal and set aside the judgment of the Court below. These authorities were relied on:

LIST OF AUTHORITIES

STATUTES:

1. SECTION 255(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED).

2. SECTION 22(3) OF THE FEDERAL HIGH COURT ACT.

3. ORDER 41 RULE 6 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA (CIVIL PROCEDURE) RULES 2018.

CASES:

1. M. A. OMISADE & 3 ORS VS. HARRY AKANDE (1987) ALL NIGERIA LAW REPORT 285.

2. AMADI VS. NSIRIM (2004) 45 WLR 142 AT 148.

3. AWOLEYE VS. BOARD OF CUSTOMS & EXCISE & ANOR (1990) 2 NWLR (PT. 133) 490.

4. MADUMERE VS. OKAFOR (1996) 4 NWLR (PT. 445) 637

5. DIMASA PROPERTY LTD VS. YUSUF (2009) 48 WRN 28 AT 36.

6. AMADI VS. NSIRIM (2004) WLR 142 AT 148.

7. PROFESSOR ALBERT OGUNSOLA VS. ALL NIGERIA PEOPLES PARTY & 2 ORS (2003) 9 NWLR (PT. 826).

8. SAVAGE & ORS VS. UWECHIA (1972) ANLR 255.

9. MAILANTARKI VS. TONGO & ORS (2017) LPELR 4246.

I have carefully read the briefs filed by the parties herein and I shall utilise the issues raised by the Appellant in resolving the appeal. I will resolve issues one and two together, before proceeding to issues three and four. The issues again are as follows:

1. Whether the Court below had the territorial jurisdiction to hear, entertain and determine the suit of the Appellant. (Distilled from Ground 1 of the Notice of Appeal filed 27th February, 2019).

2. Whether it is not a miscarriage of justice when the Court below, in spite of the provision of Section 22(3) of the Federal High Court Act and binding judicial precedents refused the transfer of the suit of the Appellant to the Federal High Court, Kogi State Judicial Division sitting at Lokoja. (Distilled from Ground 2 of the Notice of Appeal filed 27th February, 2019).

Appellant on the merit. (Distilled from Grounds 3 of the Notice of Appeal filed 27th February, 2019).

ISSUES ONE AND TWO

Oputa JSC (as he then was) in TUKUR VS. GOVT GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 stated the importance of territorial jurisdiction in these words:

exercised. This area of authority is called the area of geographical jurisdiction or venue. Both are important when one is considering the concept of jurisdiction. And both must co-exist in any particular case to complete the circuit of jurisdiction.”

See also DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) 310.

and wrote its report on 15th December 2014. All these took place in Gombe, Gombe State. No aspect of the primary election and the appeal there took place in the Federal Capital Territory, except that the NWC or NEC of APC submitted the name of the 1st Respondent to INEC whose headquarters is in the FCT, Abuja. [Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Rivers State Government of Nigeria vs. Special Konsult (Swedish Group) (2005) 7 NWLR (Pt. 923) 145 referred to] (Pp. 83, paras F ? G; 84, paras F ? G; 86, paras, D ? G; 88, paras. E ? G).

At page 87, paragraphs A – C, the Court held further:

“The lower Court has, rightly in my view, held, relying on Dalhatu v. Turaki (supra), that the jurisdiction of the High Court of the Federal Capital Territory, Abuja, which is regarded as a State High Court by virtue of Section 299(a) of the 1999 Constitution, as amended, does not extend to matters that arise outside the Federal Capital Territory, Abuja. I also agree with their lordship of the lower Court that each State of the Federation is independent of the Federal Capital Territory, Abuja and vice versa and that the judicial powers of

each state are vested in the Courts established for that state. Gombe State and the Federal capital Territory, Abuja are distinct and independent of each other. It follows, therefore, that this matter which arose in Gombe State and has to do with the parties in Gombe State should have been commenced in the High Court of Gombe State and not in the FCT High Court. The FCT High Court has, in the circumstances, acted ultra vires in assuming jurisdiction over a cause of action that arose in Gombe State and outside its jurisdiction territory. The proceedings in the suit No.FCT/C1/934/2015 before the FCT High Court, being incompetent, deserved to be and correctly struck out by the lower Court. There is no substance in this appeal on this issue.

And at page 90 paragraphs C -D, the Apex Court held thus:

“Where there is a division of the Federal High Court in a State as well as a State High Court, an aggrieved aspirant can institute his action in either Court. This is in recognition of the fact that by conferring jurisdiction on the Federal High Court and the High Court of a State or the Federal Capital Territory, the intention of the lawmaker Is to give an

aspirant the flexibility of ventilating his grievance in any of the Courts listed therein depending on which location is most convenient to the parties. This cannot be taken to mean that a suit may be filed in any of the named Courts anywhere of the Federation in blatant disregard of the particular Courts territorial jurisdiction. That would be an absurd interpretation of the law and would no doubt lead to miscarriage of justice.”

The position of the law is clear and needs no further clarification from me. See further RIVERS STATE GOVT. VS. SPECIALIST KONSULT (SWEDISH GROUP) (2005) 7 NWLR (PT. 923) 145; IDEMUDIA VS. IGBINEDION UNIVERSITY OKADA (2015) LPELR – 24514; (UNREPORTED) APC VS. EMENIKE & 2 ORS with Appeal No. CA/A/39/2019 delivered on 28th January, 2019; UNREPORTED APPEAL NO. CA/A/18/2019: UBOH VS. ALI & 2 ORS delivered on 30th January, 2019.

?Because in matters begun by originating summons, it is the affidavit in support of the application that is used to determine jurisdiction, I shall now refer to the said affidavit. See PDP VS. ABUBAKAR (2007) 5 NWLR (PT. 1022) 515; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427;

NASHTEX INT. LTD VS. HABIB (NIG.) BANK LTD (2007) 17 NWLR (PT. 1063) 308; ACTION CONGRESS VS. INEC (2007) 18 NWLR (PT. 1065) 50; VEEPEE IND. LTD VS. COCOA IND. LTD (2008) 13 NWLR (PT. 1105) 486.

In the affidavit in support of the originating summons, the Appellant declared as follows:

‘AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, Mall. Abduljelil Momoh Yahaya, Male, Muslim, Adult, Nigerian, Businessman of No. 4, Ikoja Street, Ankpa, Kogi State, do make oath and states as follows:

1. That I am the Claimant in this suit, I am from Kogi State and a member of the 1st Defendant, All Progressives Congress APC; a copy of my membership card is attached and marked exhibit “A”.

2. That the 1st Defendant, All Progressives Congress (APC) is a registered Political Party in Nigeria with its National Secretariat located at No. 40, Blantyre Street, Wuse II, Abuja, within the jurisdiction of this Honourable Court.

3. That the 2nd Defendant, Alh, Abdullahi Ibrahim All; is a member of the 1st Defendant, All Progressives Congress (APC) and was an aspirant in the primary election for the nomination of the 1st Defendant’s candidate in respect of Ankpa/Omala/Olamaboro

Federal Constituency of Kogi State in the 2019 General Election and lives in Lokoja.

4.The 3rd Defendant, Independent National Electoral Commission (INEC), is a constitutional and statutory body with the powers which includes the conduct of election in Nigeria and has its headquarters located in Maitama, Abuja within the jurisdiction of this Honourable Court.

5. That I have a personal knowledge of all the facts deposed to in this affidavit.

6. That I know as a fact that the 1st Defendant, being a registered Political Party has a Constitution which governs its activities; a copy of the 1st Defendant Constitution is attached and marked exhibit “B”.

7. That preparatory to the conduct of primary elections for the nomination of all its candidates in the 2019 General Elections, the 1st Defendant issued guidelines titled “Guidelines for the Nomination of Candidate for the 2019 General Elections 2019 – Indirect Primaries t; copy of the said Guidelines is attached and marked exhibit “C”.

8. That as a member of the 1st Defendant, I purchased the Expression of Interest Form and Nomination Form for the Federal House of Representative in the sums

of N300, 000.00 and N3,500,000.00, the evidence of the payment of the said sums are attached and marked exhibit “D”.

9, That I filled out the Expression of Interest Form and the Nomination Form to vie for nomination as the candidate of the 1st Defendant in respect of Ankpa/Omala/Olamaboro Federal Constituency of Kogi State in the 2019 General Elections and submitted same to the 1st Defendant, copies of the acknowledgement copies of the receipt of my duly filled out Expression of Interest Form and Nomination Form by the 1st Defendant are attached and marked exhibit “E1” and “E2” respectively.

10. That the primary election for the nomination of the candidate of the 1st Defendant in respect of Ankpa/Omala/Olamaboro Federal Constituency of Kogi State held on the 4th October, 2018 at Ankpa, Kogi State; the records of the votes cast were as follows:

i. Mallam Adduljelll Momoh Yahaya – 838 votes.

ii. Blessing Ekele – 5 votes

iii. Ben Adaji – 1 vote

iv. Abdullahi Ibrahim All (Halims) – 0 vote

Copy of the duplicate of the record of the votes issued to me is attached and marked exhibit “F”.

11. That shortly after the said primary election which clearly won I was inundated by calls and visit by well wishers and sympathizers who told me that my name with the name of Abdullahi Ibrahim All, the 2nd Defendant, who came last and had no vote in the primary election.

12. That fearing for the worst I immediately forwarded a petition to the Appeal Committee setup by the 1st Defendant to address the grievances of all aspirants arising from the primary elections; the copy of my letter to the Appeal Committee is attached and marked exhibit ?G?.

13. That the Appeal Committee attended to my petition, scrutinized the records, took evidence and upheld my victory as the duly nominated candidate of the 1st Defendant in respect of Ankpa/Omale/Olamaboro Federal Constituency of Kogi State in the 2019 General Elections. Copy of the extract of the Appeal Committee Report is attached and marked exhibit “H?.

14. That I went away knowing fully well that the Appeal Committee having done justice to my petition; I later realized on the 27th October, 2018

that the 1st Defendant have surreptitiously forwarded the name of the 2nd Defendant on or about 18th October, 2018 as the 1st Defendant’s Federal House of Representative candidate in respect of Ankpa/Omala/Olamaboro Federal Constituency of Kogi State in the 2019 General Elections.

15. That I applied to the 1st Defendant for the extract of the Appeal Committee Report vindicating my victory; the said letter of request is attached and marked exhibit “I”.

16. That the actions of the Defendants came to my knowledge on the 27th October, 2018 on the publication of the list of candidates for National Assembly in the 2019 General Elections by the 3rd Defendant.

17. That it will be in the interest of justice to grant to me all the reliefs I am seeking against the Defendants.

18. That I know that the publication of the name of the 2nd Defendant by the 3rd Defendant on or about 27th October, 2018 is unlawful, null and void.

19. That I make this affidavit in good faith and in accordance with the Oath Act.”

In the instant case, the cause of action pleaded in the Originating Summons centred on the primary election of the All Progressive Congress

(APC) conducted on the 4th of October, 2018 at Ankpa,Kogi State for the Ankpa/Omala/Olamaboro Federal Constituency of Kogi State. The protest and appeal emanating from the said primary election were merely incidental or matters arising from the said primary election. The Appeal Committee of the APC heard the appeal, and from the supporting affidavit, it was averred that it upheld the appeal. It appears from the affidavit evidence that all aspects of the primary election took place at Ankpa in Kogi State. No aspect of the said primary election took place in the Federal Capital Territory. There is nothing to show where the appeal took place, except that the 1st Respondent submitted the name of the 2nd Respondent to INEC whose headquarters is in the FCT Abuja.

In the light of the facts, the lower Court has, rightly in my view, held that the jurisdiction of the High Court of the Federal Capital Territory Abuja, which is regarded as a State High Court by virtue of Section 299 (a) of the 1999 Constitution as amended does not extend to matters that arise outside the Federal Capital Territory, Abuja. There is therefore no substance in this appeal on this issue.

While resolving issues 1 and 2 supra, the learned trial judge held thus:

“Issue No. 3: The argument of the 1st defendant is that the High Court of the Federal Capital Territory does not have the territorial jurisdiction to entertain the claim of the claimant as rooted in the provision of Section 2(2) of the 1999 Constitution that stipulates that each state of the Federation is independent of the other and the jurisdiction of each Court is limited to matters arising in the state. He argued further that the cause of action was the primary election of All Progressive Congress conducted on the 4th of October 2018 in Ankpa Kogi State. That no aspect of the primary election and the appeal thereof or forwarding of the claimant’s name to INEC arose from Abuja. The case of MAILANTARKI V TONGO (2018) 6 NWLR (PT. 1614) PG. 69 @ 84 ? 88 was commended to the Court.

?The counsel to the claimant on the other hand contended that the cause of action in this suit is not the primary election for the nomination of the candidate of the 1st defendant in respect of the Ankpa/Olamaboro/Omala Federal Constituency but the decision to forward

the name of the 2nd defendant by the 1st defendant/applicant. He argued that the power to forward a name of candidate for an election to the 3rd defendant/respondent is only exercisable by a political party. The reference to a political party in the Electoral Act (2010) as amended means the National Working Committee of the 1st Defendant/applicant which is domiciled within the National Secretariat located within Abuja, Federal Capital Territory wrongfully forwarded the name of the 2nd defendant to the 3rd defendant, and that is the basis of the cause of action in this suit. He relied on the authorities of ABEGUNDE V O. S H. A. (2015) 8 NWLR (PT, 1461) 314@366 LINES E ? F, ODEDO VS. PDP (2015) 33 WRN 1 Cad 39 LINE 10 ? 40, AGI V PDP & ORS (2016) 12 MJSC 1 86 ? 87 LINE G ?A, EMENIKE V PDP (2012) 48 WRN 1 @ 31? 32 LINE 45 ? 50. He urged the Court to take judicial notice of the fact that the defendant/respondent who has the responsibility to accept the name of a candidate is an agency of the Federal Government and had its national Headquarters within Abuja.

?The complaint of the claimant is in respect of the primary

election that was conducted by the 1st defendant and his alleged emergence as the winner of the primary election, with the non-submission of his name by the 1st defendant. The claimant cause of action is therefore centered on the primary election that took place on the 4th of October, 2018 at Ankpa, Kogi State. The decision whether rightly or wrongly in forwarding name of the 2nd defendant to the 3rd defendant as the nominated/selected candidate of the 1st defendant is a fallout of the primary elections. It is the National Working Committee of the 1st defendant that brought itself to Ankpa, Kogi State to conduct the primary election. It is the consequence of the action of the 1st defendant in Kogi State that is being questioned by the claimant. If the National Working committee of the party can move to all the states of the country to conduct primaries, they can as well be called to question over their actions/inactions in that state by being sued at either the State High Court or Federal High Court where the action or event took place. The whole cause of action centered on the selection or nomination of the 2nd defendant as the candidate of the 1st defendant

for the named constituency in this action is still part of the process of the primary election. Both the claimant and the 2nd defendant live in Ankpa, Kogi State. The 3rd defendant even though has its administrative headquarters in Abuja equally has branch offices throughout the Federation. The proper forum for ventilating the claimant’s case is Kogi State High Court or Federal High Court in Kogi State. I have read the authorities of MAILANTARKI V TONGO Supra relied on by the defendants where the Supreme Court held:

‘A Court in one state of the federation does not have jurisdiction to hear and determine a matter either exclusively within the jurisdiction of another state or which arose within the territory of another state. No Court in any state including the High Court of FCT has extra territorial jurisdiction.’ (RIVERS STATE GOVERNMENT OF NIGERIA V SPECIAL KONSULT (SWEDISH GROUP) (2005) 7 NWLR (PT, 923) 145) referred to.”

I am therefore in agreement with the learned counsel to the 1st and 2nd defendants that this Court lacks the territorial jurisdiction to entertain the claim of the claimant.

?Now what is the proper order to make in the

circumstances of this case? The claimants counsel relied on the provision of Section 22(3) of the Federal High Court Act Cap F12 LFN 2004 and urged the Court to transfer this matter to Kogi State High Court instead of striking/dismissing the case.

The provision of the Federal High Court Act sought to be relied on by the claimant’s counsel is not applicable to this court and cannot be used as a basis to transfer this matter to Federal High Court.”

A Court that is devoid of jurisdiction over a matter is bound to make an order in respect thereof. There appears to be a brake on adherence to the law that where a Court discovers that it is denied of jurisdiction to determine a matter, the only option left to it is to make an order striking it out. That is rooted in the province of inter-transfer of cases between the Federal High Court and the High Court when the jurisdiction of either is stripped to hear a matter. Section 22 (2) and (3) of the Federal High Court Act provides for a transfer of a case from the Federal High Court to the High Court and vice versa, when either is denuded of the requisite jurisdiction to hear a matter.

In AWOLEYE VS. BOARD OF CUSTOMS AND EXCISE

(1990) 2 NWLR (PT. 133) 490, the Supreme Court held that a State High Court had no jurisdiction, under Section 22 (2) of the Federal High Court Act, to transfer a case to the Federal High Court for adjudication. Subsequently, the Court did not depart from Awoleye’s case in the case of FASAKIN FOODS (NIG) LTD VS. SHOSANYA (2006) 10 NWLR (PT. 987) 126. Therein, the respondent was, at a time in 1991, appointed the receiver/manager of the appellant by an order of the Federal High Court. Sequel to that, the appellant sued the respondent claiming from it various sums of money for its (appellant’s) mismanagement. That was in the High Court of Lagos State and the appellant filed a statement of claim therein.

?Upon receipt of the statement of claim, the respondent filed a notice of preliminary objection on the reason that the High Court had no jurisdiction to hear the matter. After arguments, the High Court ruled that most of the complaints involved the operation of the company for which the Federal High Court had jurisdiction and directed pursuant to Section 22(3) of the Federal High Court Act, 1990, that the suit be transferred to the

Federal High Court. The respondent’s appeal to the Court of Appeal was allowed. The order of the Court was set aside and in its stead an order striking out the suit was made as the High Court had no power to so transfer the suit to the Federal High Court. The appellant’s appeal to the Supreme Court was dismissed. It was held that since Section 22(3) and (4) of the Federal High Court Act was legislating for the High Court against the provision of Section 239 of the 1979 Constitution (Section 274 of the 1999 Constitution), that Section of the Act was invalid and void and that the High Court of Lagos State lacked the jurisdiction to so transfer. It was further ruled that the Federal High Court, under Section 22 (2) of the Act, could transfer a case to the High Court if it had no jurisdiction. Ogbuagu, JSC put it in clear terms in these words:

“It thus means that under the said High Court of Lagos State (Civil Procedure) Rules, 1972, there is no rule of procedure which enables that Court to transfer a cause or matter to the Federal High Court. That Court cannot even in the circumstances, resort to or fall back to the practice and procedure in England as there

appears to be no such provision of transfer from a High Court to the Federal High Court. So, as it stood or stands, the Lagos State House of Assembly has not made any provision for the transfer of a cause or matter to the Federal High Court, The practice and procedure of a State High Court is regulated by Section 239 of the 1979 Constitution…

I am aware that while the Federal High Court can transfer a cause or matter to a State High Court by virtue of S. 22(2) of the Act… but there is no such provision applicable at least, in the Lagos High Court Rules.”

In the instant case, the trial Court is the High Court of the Federal Capital Territory, Abuja which was created by Section 255 of the 1999 Constitution (as amended). By Section 259 of the same Constitution, the Chief Judge is empowered to make Rules for regulating the practice and procedure of the High Court of the Federal Capital Territory Abuja. Pursuant to Section 259 of the Constitution, the Chief Judge made the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 which came into effect on the 15th day of February 2018.

Order 41 Rule 6 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 provides thus:

“Where a Court has no jurisdiction in a cause or matter, the judge may by order transfer the cause or matter to a Court with competent jurisdiction.”

It thus means that under the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, there is a rule of procedure which enables that Court to transfer a cause or matter to the Federal High Court. The tenor and intendment of this rule is that the High Court of the Federal Capital Territory, Abuja can validly make an order of transfer of a case from itself to a Court of different jurisdiction. The learned trial judge should have exercised his power under Order 41 Rule 6 and have the matter transferred to the Court with requisite territorial jurisdiction.

I have observed that the Respondents have argued that the suit was statute barred. It is clear that this issue was raised at the trial Court, and the learned trial judge found in favour of the Appellant. The Respondents herein did not file a Respondent Notice or a Cross-appeal, and hence, they cannot be heard to challenge

the judgment of the Court in any manner whatsoever. See MADUMERE VS. OKAFOR (1996) 4 NWLR (PT. 445) 637; DIMASA PROPERTY LTD VS. YUSUF (2009) 48 WRN 28; AMADI VS. NSIRIM (2004) 45 WLR 142; CBN VS. DINNEH (2010) 17 NWLR (PT. 1221) 125; EFURIBE VS. UGBAM (2010) 14 NWLR (PT. 1213) 257.

In the light of the findings on the above issues, there is no need in my view proceeding to consider issues 3 and 4. They have in the circumstances of the above findings become academic. This Court has no jurisdiction to deal with academic questions. See A. G. ANAMBRA STATE VS. A. G. FEDERATION (2005) 6 NWLR (PT. 931) 572); DABO VS. ABDULLAHI (2005) 7 NWLR (PT. 923) 181; YUSUF VS. TOLUHI (2008) 14 NWLR (PT. 1107) 237; PLATEAU STATE VS. A. G. FED. (2006) 3 NWLR (PT. 967) 346.

Overall, I hold that the appeal only succeeds in part. The trial Court clearly lacked the territorial jurisdiction to hear and determine the suit. An Order is hereby made transferring the suit of the Appellant to the Lokoja Division of the Federal High Court for accelerated hearing.

No order as to cost.

ABDU ABOKI, J.C.A.: I have the privilege of reading before

now the lead judgment of my learned brother MOHAMMED BABA IDRIS, JCA which has just been delivered. I agree with his conclusion that there is no substance in this appeal on issue one.

On issue two, it is my view that the provision of Order 41 Rule 6 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 alluded to by the 2nd respondent at the lower Court is inapplicable to the circumstances of this case. The provision deals with the situation when a judge is entitled to transfer a suit from one judicial division to another within the territory of the same state. See also the case of:INT’L NIGERBUILD CONST. CO. LTD VS. GIWA (2003) 13 NWLR (PT. 836) PG. 69.

Order 41 Rule 6 (supra) provides thus;

“Where a Court has no jurisdiction in a cause or matter, the judge may by order transfer the cause or matter to a Court with competent jurisdiction.”

In the present case, the lower Court is of the opinion that the FCT High Court, Abuja lacks the territorial jurisdiction to entertain the claims of the appellant, and that the proper forum for ventilating the appellant’s case is Kogi

State High Court or Federal High Court in Kogi state. I am in agreement with the opinion of the lower Court.

Hence, the appropriate order to make in that circumstance will be to strike out the suit.

The appeal is therefore, allowed by me and I abide by the consequential orders contained therein as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

S. E. Aruwa, Esq. with him, A. Ogundiran, Esq., E. E. Nnewi. Esq. and M. Balogun. Esq.For Appellant(s)

U.O. Sule, Esq. with him, A. Afa, Esq., H. I. Usman, Esq. for the 1st Respondent.

N. Gana, Esq. for the 2nd Respondent.For Respondent(s)

Appearances

S. E. Aruwa, Esq. with him, A. Ogundiran, Esq., E. E. Nnewi. Esq. and M. Balogun. Esq.For Appellant

AND

U.O. Sule, Esq. with him, A. Afa, Esq., H. I. Usman, Esq. for the 1st Respondent.

N. Gana, Esq. for the 2nd Respondent.For Respondent

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