MR. MICHAEL ADEJOH ITODO V. HON. YUNUSA GABRIEL OLOFU & ORS. (2010)

MR. MICHAEL ADEJOH ITODO V. HON. YUNUSA GABRIEL OLOFU & ORS.

(2010)LCN/3885(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of June, 2010

CA/A/245/2009

RATIO

IMPORTANCE OF THE ISSUE OF JURISDICTION

It is settled law that the question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. This is because, if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. See the case of DAPLANLONG VS DARIYE (2007) 8 NWLR (PT 1036) 332 SC, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341. OLOBA VS AKEREJA (1988) 3 NWLR (PT.84) 508. PER UWANI MUSA ABBA AJI, J.C.A

WHAT WILL BE CONSIDERED IN DETERMINING WHETHER A COURT HAS THE JURISDICTION OR THE LEGAL POWER TO ENTERTAIN A CLAIM

INTERPRETATION OF SECTION 71 OF THE KOGI STATE ELECTORAL LAW 2004 AS TO WHETHER THE ELECTION TRIBUNAL HAS JURISDICTION TO ENTERTAIN A PETITION ARISING FROM AN ACTION THAT DOES NOT CHALLENGE THE CONDUCT OF AN ELECTION

SECTION 71 provide thus: “No election and no return at an election under this law shall be questioned in any manner other man by a petition complaining of an undue election or undue return (in this law referred to as an “election petition”), presented in accordance with the provisions of this law and in which the person elected or returned is joined as a party. It is contended for the Respondents that this matter is post election matter and the competent court to try the matter is the Election tribunal established under Section 70 of the Kogi State Local Government Electoral Law 2004. I agree with S.A. Agada for the 1st, 3rd and 4th Respondents that this matter is a post election matter only to the extent that the originating summons was filed after the Election, but the Appellant cannot approach the Election Tribunal for remedy because the claim of the Appellant does not fall under Section 74 of the Local Government Electoral Law 2004. The substitution of the Appellant took place after he contested and won the election and not before or during the election and is not therefore within the jurisdiction of the Election Tribunal to entertain. Pre-election disputes encompasses the stage of conducting party primaries to holding of actual elections on the other hand, post-election disputes contemplate actual election which is challengeable on the ground of undue election or undue return albeit on specific grounds as prescribed, in the instant case, by Section 74(1) (a-d) of the Local Government Electoral Law of Kogi State, 2004. Therefore, post election disputes come under the exclusive jurisdiction of the Electoral Tribunal as established under Section 70 of the Local Government Electoral Law 2004. In the instant case, the substitution of the Appellant took place after election has been held and result announced in his favour. Once the action of the Plaintiff does not challenge the conduct of an election, the Tribunal will have no jurisdiction. The appropriate venue for the Plaintiff to ventilate his grievance is the High Court or the Federal High Court and not Election Petition Tribunal as canvassed by the Respondents and held by the trial court. See P.D.P VS K.S.I.E.C. (2006) 3 NWLR (PT968) 56G, OBI VS INEC (2007) 11 NWLR (PT.1046) 565. PER UWANI MUSA ABBA AJI, J.C.A

EFFECT OF AN ISSUE FOR DETERMINATION THAT IS BASED ON INCOMPETENT GROUND(S) OF APPEAL

It is trite that where an issue for determination is predicated upon an incompetent or defective ground of appeal, such issue becomes unarguable. See THOR LTD VS F.C.M.B LTD (2002) 4 NWLR (PT.757) 427, NKPUMA VS STATE (1995) 9 NWLR (PT421) 505 at 507. Similarly, an issue for determination which is based on incompetent ground(s) of appeal is at large and goes to no issue. Such issue will be struck out as worthless. This is because it is the grounds of appeal that provide the legal basis for any attack on the judgment or ruling of a trial court. It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination. See JOHN HOLT VENTURES LTD VS OPUTA (1996) 9 NWLR (PT.470) 101 at 113, U.B.A PLC VS A.C.B. (NIG) LTD (2005) 12 NWLR (PT.939) 232. PER UWANI MUSA ABBA AJI, J.C.A

JUSTICES

HON. JUSTICE UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HON. JUSTICE JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HON. JUSTICE ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

MR. MICHAEL ADEJOH ITODO Appellant(s)

AND

1. HON. YUNUSA GABRIEL OLOFU (CHAIRMAN OLAMABORO LOCAL GOVT.)
2. KOGI STATE INDEPENDENT ELECTORAL COMMISSION
3. PEOPLES? DEMOCRATIC PARTY
4. MR. ENEJO SOLOMON MUSA Respondent(s)

UWANI MUSA ABBA AJI, J.C.A:(Delivering the leading judgment) This is an appeal against the Ruling of the Justice A.O. Salihu, of the High Court of Justice, Kogi State, sitting at Okpo, delivered on the 7th day of May, 2009, wherein the learned trial Judge declined jurisdiction to entertain and determine the Appellant’s case holding same to be a post-election matter, arising from the Local Government Election in respect of Ogugu Ward II, held on the 26th day of July, 2008.
The Appellant (Plaintiff at the Lower Cower), was a candidate of the 3rd Respondent, the Peoples Democratic Party (PDP) at the election held on the 26th day of July, 2008, to the office of councilor representing Ogugu Ward II, Olamaboro Local Government Council, which election was organized by the 2nd Respondent, Kogi State Independent Electoral Commission.
The Appellant took out an Originating summons, filed on the 28th day of August, 2008, and caused same to be issued upon the Respondents for the determination of the following questions:-
1 Whether the Claimant, who contested for and won the section into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council, in the Election organized by the 2nd Defendant on the 26th July, 2008 could be substituted by the 3rd Defendant after the election.
2. Whether the 2nd Defendant either acting alone or in concert With the 1st and 3rd Defendants could withhold the claimant’s Certificate of Return after he had contested and won the election into the office of councillor for Ogugu Ward II Olamaboro Local Government Council.
3. Whether the 1st Defendant is entitled to refuse to swear in the claimant who, as the candidate of the 3rd Defendant, contested and won election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council.
4. Whether going by the provisions of SECTION 59 of Kogi State Local Government electoral law, 2004, the 1st to the 3rd Defendants can substitute the 4th Defendant for the claimant as the councilor representing Ogugu Ward II after election has been contested and won by the claimant in the Local Government Election held on 26th July, 2008 in Kogi State.
Based on the answers to the above questions the claimant seeks against the Defendants the following declaratory reliefs:-
1) A declaration that the 3rd Defendant cannot substitute the 4th Defendant for the claimant who contested for and won the election Into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the Biection organized by the 2nd Defendant on the 26th July, 2008.
2) A declaration that the refusal by the 5th defendant to swear in the claimant along with the other elected councillors on the 30th of July, 2008, is illegal unconstitutional, null and void and constitutes a flagrant violation of the Claimant’s Rights.
3) A declaration that the 4th Defendant who did not contest in the election held by the 2nd Defendant on the 26th July, 2008 cannot be sworn in by the 1st Defendant as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council.
4) A declaration that the 2nd Defendant cannot withhold the Certificate of Return of the claimant who contested and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the election held on the 26th July, 2008.
5) An order directing the 2nd Defendant to release to the claimant his Certificate of Return as the councilor representing Ogugu Ward II in Olamaboro Local Government Council.
6) An order directing the 1st Defendant to forthwith swear in the Claimant as the councilor representing Oguau Ward II in Olamaboro Local Government Council, the claimant having contested and won the election into the councilor seat of Ogugu Ward II in the Local Government Council election held on the 26th July, 2008.
7) An order of an injunction restraining the 1st to the 3rd Defendants either by themselves, their agents, privies otherwise howsoever from putting forward and swearing in the 4th Defendant or any other person, other than the claimant as the councilor representing the Ogugu Ward II in Olamaboro Local Government Council.
8) An order of injunction restraining the 4th Defendant from parading, representing and or howsoever putting himself forward as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council.
The originating summons is supported by a 29 paragraph affidavit deposed to by Mr. Michael Adejoh Itodo, the claimant, wherein was attached Exhibits A, B, C, D, E, and F. On the 21st day of November, 2008 the Appellant filed a further and better affidavit in support of the originating summons deposed to by the claimant himself, Mr. Michael Adejoh Itodo, containing 27 paragraphs, with Exhibits, 1,2, 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 3, 4, 5, 6 and 7, annexed thereto. (See pages 1 – 27 and 88 – 181 of the Records).
Upon being served with the originating summons, the 1st, 3rd and 4th Defendants/Respondents filed Counter Affidavits, on the 25th day of Novembers, 2008 deposed to by the 4th Respondent, Mr. Enejo Solomon Musa, containing 14 paragraphs with Exhibits A, B, C, D, E, F, and G annexed thereto. (See pages 180 – 196 of the Records).
Similarly, the 2nd Respondent filed a Counter Affidavit on the 3rd day of October, 2008, deposed to by one Benjamin Audu, of the Kogi State Ministry of Justice, State Secretariat, Lokoja, containing 4 paragraphs, with Annexures A, B, C, D, and E, attached thereto (See pages 74 – 86 of the Records).
The 2nd Respondent also filed a Notice of Preliminary Objection on the 20th day January, 2009, praying inter alia, for:
“An order striking out the suit for want of jurisdiction”
The Notice of preliminary objection, had a supporting affidavit of 3 paragraphs, deposed to by one Benjamin Audu, of the Kogi State Ministry of Justice, State Secretariat, Lokoja; wherein was annexed Annexures A, B, C, D, and E (See pages 216 – 226).
The 1st, 3rd and 4th Respondents also filed a Preliminary objection on the 8th April, 2009 praying the court for:-
“An order striking out this suit for being incompetent and this Honourable Court lacks the jurisdiction to entertain it, as the matter is an intra party, political and domestic dispute of the 3rd Applicants which the courts have no jurisdiction to entertain.”
Attached to the Notice of Preliminary Objection is a 12 paragraphed Affidavit with Exhibits A, B, C, D and E , annexed thereto, deposed to by the 4th Applicant, Mr. Enejo Musa (See pages 245 to 254 of the Records) .
The case of the Appellant, as disclosed in his affidavits is that he as a member of the Peoples’ Democratic Party (3rd Respondent) was nominated, screened, cleared, contested and won election as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council. The 1st and 2nd Respondents, however refused to issue the Certificate of Return and swear in the Appellant, who won the election, purportedly, on the instruction of the Kogi State Chairman of the Peoples’ Democratic Party. The Appellant later discovered that the 4th Respondent was about to be sworn in as councilor in his place. He therefore filed this Originating Summons seeking the determination of the questions as to whether having contested and won the election, the party could substitute at that stage.
The Respondents on the other hand, contended that though the Appellant’s name was originally submitted to the Electoral Commission, he was substituted long before the election. They alleged that the screening and clearance of the Appellant was made by mistake and that it was the 4th Respondent who contested and won the election – hence he was the one returned.
Before the hearing of the case at the lower court, the Respondents filed two preliminary objections challenging the competence of the Appellant’s claim on the ground that the action was a post-election matter and ought to have been filed at the Local Government Election Tribunal. The 1st, 3rd and 4th Respondent objected to the competence of the action on the ground that the action, being a challenge of the authority of a political party to substitute a candidate for election is not justiciable. Both parties filed and exchanged written addresses on the preliminary objection.
In a considered ruling, the learned trial Judge held that the action is in effect seeking to challenge the return of the 4th Respondent by the 2nd Respondent. The trial Judge thus declined jurisdiction and struck out the Appellant’s action.
Aggrieved by this Ruling, the Appellant has appealed to this Honourable Court, vide a Notice of Appeal, filed on the 19th day of June, 2009 and containing thirteen (13) grounds of appeal.
The 1st, 3rd and 4th Respondents were not satisfied with part of the decision of the trial court and filed a cross appeal. The cross appeal will be considered after a determination of the Appellant’s main appeal.
The grounds of appeal without their particulars are hereby reproduced:
GROUNDS OF APPEAL
GROUND ONE:
That the Learned trial Judge erred in law when he held that the Local Government Election Tribunal is the proper forum for determining the claimant’s case.
GROUND TWO:
The learned trial Judge erred in law in declining jurisdiction to entertain the claimant’s action on the ground that the action is a post election matter that ought to be filled (sic) at the election tribunal.
GROUND THREE:
The Learned trial Judge erred in law when he held that the claimant’s case at the trial complains of corrupt practices and non compliance with the Kogi State Local Government Election Law, 2004.
GROUND FOUR:
The learned trial Judge misdirected himself in law when he held as follows;-
“But in this case, the claimant contested and won the election for councillorship in Ogugu Ward II in Oiamaboro Local Government Area in view of Exhibit 2 attached to the further and better affidavit but he was not returned.”
GROUND FIVE:
The learned trial Judge erred in law by not granting the claims of the claimant having found that it was the claimant that contested and won the election to the office of councilor of Ogugu Ward II in Oiamaboro Local Government Area on the 26th of July, 2008.
GROUND SIX:
The learned trial Judge erred in law when the he held that there was apparent contradiction in the claimant’s affidavit in support of the summons and his further and better affidavit.
GROUND SEVEN:
The learned trial Judge erred in law when he made reference to the averment in the defendant’s counter affidavit when considering the issue of Jurisdiction.
GROUND EIGHT:
The trial Judge misdirected himself on the case of the claimant when he held that;-
“In respect of the application of the 1st, 3rd and 4th Defendants/applicants, the claimant/Respondent’s counsel submitted that their originating summons does not relate to intra-party issue. They contested the election and won and it is not a case of substitution of candidate.”
GROUND NINE:
The learned trial Judge misdirected himself on the case of the appellant at the trial and consequently arrived at a wrong conclusion as follows:-
“The learned counsel to the claimant/Respondent submitted that the claimant’s claim is not a case for election petition tribunal because they contested and won the election for councilor representing Ogugu Ward II in Olamaboro Local Government, but the 4th Defendant/Respondent was returned instead.”
GROUND TEN:
The learned trial Judge misdirected himself when having held that the claimant, by virtue of Exhibit 2, annexed to his further and better affidavit, contested and won the election, went ahead to hold that the 4th Defendant was returned instead.
GROUND ELEVEN:
The learned trial Judge erred in law when he held that:
“I therefore hold that Exhibit 2, which is attached to the further and better affidavit was issued by the returning officer for Ogugu Ward II, does not include a declaration of result to be issued by the 2nd defendant and is clearly not a declaration of result, under the Local Government Law; signed by the chairman of Kogi State Independent Electoral Commission (2nd Defendant).” GROUND TWELVE:
The learned trial Judge misdirected himself on the case of the claimant when he held as follows:-
“I therefore disagree with the submission of the learned counsel to the Claimant/Respondent that the Kogi State Election Law, 2004 does not provide any grounds for the Claimants withheld return.”
GROUND THIRTEEN:
The learned trial Judge erred in law when he held that Exhibit 2 annexed to the further and better affidavit of the Appellant was not a return as envisaged by the Local Government Electoral Law but that a certificate of return signed by the chairman of the 2nd defendant is the return at the Ogugu Ward II Councillorship Election.
As is the practice in this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Abdullah M. Aliyu, Esq., the following two issues were formulated for determination namely:-
1. Whether the learned trial Judge was right to decline jurisdiction to entertain the Appellant’s case on the ground that it seeks to challenge the return of the 4th Respondent? (Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11, 12 and 13 of the notice and grounds of appeal).
2. Whether, on the facts before the trial court, the Appellant was entitled to all the prayers sought by him (Grounds 4 and 6 of the notice and grounds of appeal,)
In the 1st, 3rd and 4th Respondents’ brief of argument settled by S.A. Agada Esq., the 1st, 3rd and 4th Respondents adopted the Appellants’ issue one and urged this court to strike out the Appellant’s issue two as not arising from the records.
The 2nd Respondent’s brief was settled by I.O. Alhassan Esq. In it, learned counsel formulated two issues for determination, namely:-
1. Whether the trial court did not have jurisdiction to entertain the case of the Appellant having regard to his claim, and on the facts of this case.
2. Whether on the facts before the trial court, the Appellant was entitled to all the prayers sought by him.
At the hearing of the appeal, on the 10th of May, 2010, learned counsel for the Appellant, Abdullahi M. Aliyu, Esq., adopted and relied on the Appellant’s brief of argument dated 7th day of September, 2009 and filed on the 11th day of September, 2009. The Appellant also relied on , the Appellant’s Reply brief dated 6th day of February, 2010 and filed on the 8th day of February, 2010 and also the case of AGBAKOBA VS INEC (2008) 18 NWLR (Pt.1119) 489 at 554 and urged this Honourable Court to allow the appeal.
Learned Counsel to the 1st, 3rd and 4th Respondent S.A. Agada Esq., adopted and relied on the 1st, 3rd and 4th Respondents brief of argument dated the 10th day of November, 2009, filed on the 2nd day of February, 2010, and deemed properly filed on the 8th day of March, 2010 and urged this Honourable Court to discountenance the authority of AGBAKOBA VS INEC (supra) and uphold the decision of the lower court declining jurisdiction in this matter and dismiss the appeal.
Similarly learned council to the 2nd Respondent, I.O. Alhassan Esq., adopted and relied on the 2nd Respondent’s brief of argument, dated the 25th day of January, 2010 and filed on the 28th day of January, 2010, and urged this Honourable Court to discountenance the case of and urged this Honourable Court to discountenance the authority of AGBAKOBA VS INEC (supra) and to dismiss the appeal as lacking in merit.
I have carefully considered all the issues raised by learned counsel on all sides and it appears to me that all the issues are interrelated. I therefore adopt the issues as formulated by the Appellant in the determination of the appeal. For ease of reference these issues are reproduced.
1. Whether the learned trial Judge was right to decline jurisdiction to entertain the appellant’s case on the ground that it seeks to challenge the return of the 4th Respondent
2. Whether, on the facts before the trial court, the appellant was entitled to all the prayers sought by him.
In arguing issue one, learned counsel for the Appellant submitted that jurisdiction being the bedrock of adjudication, a court which entertains an action without jurisdiction labours in vain. He referred to the case of MADUKOLU VS NKEMDILIM (1962) NSCC 374. That it is settled that it is the Plaintiff’s claim that determines whether a court has jurisdiction to entertain an action or not, and referred to the case Of IKINE VS EDJORODE (2001) 18 NWLR (PT 745) 659 at 699 Para F- G.
A.M. Aliyu, Esq., for the Appellant contended that this action being commenced by an originating summons, it is the reliefs as contained in the Summons together with the affidavit of the Plaintiff that will determine whether the trial court has jurisdiction to entertain the Appellant’s action or not. He relied on the authority of A.G. VS INEC (2001) 18 NWLR (PT 1065) 50 at 72 Para B – F. In doing this, the court will not look at a counter-affidavit even if filed. He referred to the case of INAKOJU VS ADELEKE (2007) 4 NWLR (PT 1025) 427 at 588 – 589 PARAS H-A.
It is further submitted for the Appellant that based on the issues joined by both parties, the issue that the learned trial Judge had to determine is whether the Appellant has been substituted and if so, at what stage was he substituted. He submitted therefore that the learned trial Judge was wrong to hold on page 292, lines 12 -16 of the Record that:
“I therefore resolve the affidavit evidence based on the documentary exhibits stated herein that the issue of the claimant’s name being substituted for the 4th Applicant/Defendant is not an issue for determination in this case.”
Learned counsel for the Appellant further opined that the central question before the court, based on the affidavit and counter affidavits filed in the matter was who, as between the Appellant and the 4th Respondent, was the candidate of the Peoples’ Democratic Party at the election. That being the case, it is his opinion that, the proper court for the determination of that question is the High Court and not the Election Tribunal. A.M. Aliyu, Esq., submitted that issues of nomination and substitution are matters outside the competence of an Election Tribunal. He placed reliance on the authority of SAIDU VS. ABUBAKAR (2008) 12 NWLR (PT 1100) 201 at 262 PARAS b – 263 PARAS E – F. He relied also on the case of AMAECHI VS INEC (2008) 10 WRN 1 at 149.
It is further submitted on behalf of the Appellant that once an action of a Plaintiff does not challenge the conduct of an election, the tribunal will have no jurisdiction. He relied on the following authorities:
PDP VS K.S.I.E.C (2006) 3 NWLR (PT 968) 566
OLOBA VS AKEREJA (1988) 2 NSCC 120 at 135
DOUKPOLOGJA VS RUFUS ADA GEORGE (1992) 4 NWLR (PT236) 444
OBI VS INEC (2007) 11 NWLR (PT 1046) 565
He referred also to SECTION 70 (1) (a) and (b) of the Kogi State Local Government Electoral Law 2004 and submitted that since the case of the Appellant was that of substitution, the above provision of the Electoral Law did not apply.
Learned counsel for the Appellant also opined that the learned trial Judge, with respect misconceived what a “return” is, in an election. According to him, the Black Law Dictionary 7th Edition on page 1319 defines “return” as “An official report of voting rights”. He referred also to the case of ALATAHA VS ASIN (1999) 5 NWLR (PT 601) 32 at 44 PARA D. He referred this court also to exhibit 2, 3rd column where it was stated that the Appellant won the election.
Learned counsel further submitted that the learned trial Judge erred when he reached a decision on the question of jurisdiction without looking at the reliefs sought by the Appellant. He submitted further that not all election related issue or issues that can be brought before an election tribunal. A complaint before the tribunal must be based on any of the grounds for challenging election as provided in the relevant Electoral Law. He relied on the following cases of WOMINI – EMI VS IGALI (2008) 11 NWLR (PT 1097) 123 at 146 – 147 PARAS G – G; NEC VS NRC (1993) 1 NWLR (PT 267) 120 at 129; NWABOCHI VS GIFT (1998) 12 NWLR (PT 579) 522 at 526 as well as SECTION 74 of the Kogi State Electoral Law, 2004.
He submitted finally that the learned trial Judge erred in law when he held that this action does not question the substitution of the Appellant by the 3rd Respondent when the substratum of his case was his purported substitution after he had won the election organised by the 2nd Respondent. He therefore urged this Honourable Court to answer this issue in the negative, set aside the decision of the learned trial Judge and hold that the High Court of Kogi State had jurisdiction to entertain the Appellant’s claim.
In his response, S.A. Agada, Esq., learned counsel for the 1st, 3rd and 4th Respondents submitted that the Appellant’s issue one is misconceived and does not appropriately deaf with the basis of the trial court’s decision. According to him, the reason for the trial Judge ruling that he had no jurisdiction is because the Appellant’s case is that of post election matter, which is for the Election Tribunal.
He submitted further that should this Honourable Court agree with the submissions of learned counsel for the Appellant, the trial court would still lack the jurisdiction to entertain this suit on grounds that it is a case of substitution which is the internal affairs of the political party over which courts have no powers to interfere. He relied on the following authorities: ONUOHA VS OKAFOR & ORS (1983) 2 SCNLR 244, OGUNBIYI VS OGUNDIPE (1992) 9 NWLR (PT 263), ADEBUSOYE VS ODUYOYE (2004)4 NWLR (PT 854) 406,
S.A. Agada, Esq., further submitted for the 1st, 3rd and 4th Respondents that a careful look at the case before the lower court in the originating process, it can be seen that the Appellant essentially complains of the undue return of the 4th Respondent instead of him, the Appellant. Learned counsel argued that without a certificate of Return, as contemplated by SECTION 66 of the Kogi State Electoral Law, 2004, as well as was elucidated in the case of IBRAHIM VS SHAGARI (1993) 1 BSCL, the Appellant cannot be said to have won the election. He argued further that by virtue of SECTION 71 (1) of the Kogi State Electoral Law, since the Appellant was challenging the return of the 4th Respondent, the proper forum to ventilate his views is the Election Petition Tribunal and not the High Court. He relied on the case of ROSELINE OKPANACHI EJURA VS. IBRAHIM IDRIS & 2 ORS (2006) 4 NWLR (PT 971) 538 at 562 – 563.
S.A. Agada, Esq., for the 1st, 3rd and 4th Respondent also submitted that the facts and circumstances of WOMINI-ENI VS. IGALI (2008) 11 NWLR (PT.1097) 123; INEC VS. NRC (1993) 12 NWLR (PT.267) 120; NWABOCHI VS GIFT (1998) 12 NWLR (PT.579) 22, relied upon by the Appellant, are all different, and inapplicable to the facts and circumstances of the present case and the trial court rightly held so. He therefore urged this Honourable Court to affirm the decision of the trial court and resolve this issue in favour of the 1st, 3rd and 4th Respondent.
On his part, learned counsel for the 2nd Respondent I.O. Alhassan, Deputy Director Legal Drafting M.O.J. Kogi State, submitted that from the totality of the Appellant’s affidavit at the lower court, what was in issue was the return of the 4th Respondent. According to him, by the combined effect of SECTIONS 66, 70, 71 and 74 of the Kogi State Electoral Law, 2004, matters arising from the conduct of council election as it affects the return of a candidate should be questioned at the election tribunal established for that purpose in accordance with the provisions of the Electoral Law, 2004.
He submitted also that paragraphs 16, 17 and 18 of the Appellant’s Affidavit in support of the Originating Summons satisfies the conditions highlighted in SECTION 74(c) of the Electoral Law 2004, as one of the grounds upon which an election can be question at the Election Tribunal. It is his further argument that where a person has been elected and sworn into the office, the proper venue to question the validity of his return is the Election Tribunal as provided by the Electoral Laws. Therefore, since the Appellant’s complaint was not presented and/or heard before the 4th Respondent was duly elected, returned and sworn in the State High Court is robbed of the power to hear and determined the matter. On this he relied on the authority of EJURA VS IDRIS (2006) 4 NWLR (PT 971) 538.
I.O. Alhassan, for the 2nd Respondent further submitted that where a statute provides for a particular method of seeking redress, that method alone and no other must be adopted. He referred this court to the case Of COOPERATIVE AND COMMERCE BANK VS A.G. ANAMBRA STATE (1992) 8 NWLR (PT 261) 528 as well as the case of OKOLO VS ANYAKWO (1999) 3 NWLR (PT 594) 289.
I.O. Alhassan, for the 2nd Respondent further opined that the case of AMAECHI VS INEC (2008) NWLR (PT 1089) is not on all fours with the present case because the obligation placed on a party who intends to substitute its candidate under the Kogi State Electoral Laws 2004 is not mandatory as in AMAECHI VS INEC (supra).
It is also submitted that having not filed and challenged the substitution of his candidature before the date of the election, the suit is statute barred. He relied on the cases of:
EGBE VS ADEFARASIN (1987) 1 SCNJ 1; EJURA VS IDRIS (supra), and concluded by submitting that the present case being a post election matter, the trial court lacked the requisite power to determine the case of the Appellant and he urged this Honourable Court to so hold.
In his reply brief, A.M. Aliyu Esq., for the Appellant submitted that the contention of the Respondents was of out of tone with his submissions. According to him, the argument of the Respondents that the question of substitution is an internal affair of the party which the trial court lacks jurisdiction to entertain is misconceived. He concluded by submitting that where a candidate has been nominated and his name submitted to the electoral commission, any dispute arising thereafter as to whether he has been substituted or not goes beyond the internal affairs of a political party and is justiciable. He urged this Honourable Court to discountenance the arguments of the Respondents and allow the appeal.
I have carefully considered the submissions of counsel on both sides on this issue of the jurisdiction of the trial court to entertain this suit. It is settled law that the question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. This is because, if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. See the case of DAPLANLONG VS DARIYE (2007) 8 NWLR (PT 1036) 332 SC, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341. OLOBA VS AKEREJA (1988) 3 NWLR (PT.84) 508.
Courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. In the instant case, the trial court declined jurisdiction because according to the Honourable trial Judge in his ruling at page 296 – 277 of the Records:-
“……..This case is an election matter which only the election tribunal have jurisdiction to determine the issues of undue return and not the ordinary civil rights and obligations, to be determined by the High Court as provided by Section 6(6) of the 1999 Constitution, since election petitions are controlled by special legislation, removing them from ordinary transactions between person which can be submitted to the general jurisdiction of the High Court. So Section 74(1), (b), 66 and 77(1) of the Kogi State Elections Law, 2004, robs this court of jurisdiction in the circumstances.”
It is argued for the Appellant that based on issues joined by the parties, the issue for determination is the wrongful substitution of the Appellant and not undue return of the 4th Respondent as canvassed by the Respondents, and upheld by the trial court. It appears to me, from the affidavit evidence before the trial court the central question to I determine was, who as between the Appellant and the 4th Respondent in the instant case, was the candidate for the Peoples Democratic Party (PDP) at the councillorship election held on the 26th July, 2008?

It is settled law that in determining whether a court has the jurisdiction or the legal power to entertain a claim, it is only the plaintiff’s claim that a resort must be had. Although it is sometimes necessary for the court to hear some evidence first for the purpose of determining the issue of jurisdiction, however where pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the plaintiffs pleadings, that is, his statement of claim and not on the Defendant’s pleadings, see the following cases:
ONUORAH VS. K.R.P.C. (2005) 6 NWLR (PT.921) 393;
IZENKWE VS. NNADOZIE (1953) 14 WACA 361
In the instant case, the Appellant commenced this action by originating summons, it is the reliefs contained in the summons, together with the affidavits and annexures of the plaintiff that will determine whether the trial court has jurisdiction to entertain the action or not. See A.C. VS INEC (2007) 18 NWLR (PT 1065) 50 at 77.
A careful perusal of the Appellant’s Originating Summons would reveal the following questions for determination to wit:
1. Whether the claimant who contested for and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council, in the Election organized by the 2nd Defendant on the 26th July, 2008 could be substituted by the 3rd Defendant after the election.
2. Whether the 2nd Defendant either acting alone or in concert with the 1st and 2nd Defendant could withhold the claimant’s certificate of return after he had contested and won the election into the office of councilor for Ogugu Ward II in Olamaboro Local Government Council.
3. Whether the 1st Defendant is entitled to refuse to swear in the claimant, who as the candidate of the 3rd Defendant, contested and won election into the office of Councillor representing Ogugu
Ward II in Olamaboro Local Government Council.
4. Whether going by the provisions of SECTION 59 of the Kogi State Local Government Electoral Law 2004, the 1st to the 3rd Defendants can substitute the 4th Defendant for the claimant as the councillor representing Ogugu Ward II, after election has been contested and won by the claimant in the Local Government election held on 26th July, 2008 in Kogi State
Accordingly, the claimant seeks this relief inter alia:
(a) A declaration that the 3rd Defendant cannot substitute the 4th Defendant for the claimant who contested for and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the Election organized by the 2nd Defendant on the 26th July, 2008.
In his affidavit in support of the originating summons, the Appellant stated as follows in paragraphs 7, 8, 16, 17, 18, 20, 21 and 27.
7. That as a member of the Peoples’ Democratic Party I applied to contest for the office of councillor for Ogugu Ward II in Olamaboro Local Government Council at the Ward level of my party in line with the party’s constitution.
8. That in line with the said constitution, I was nominated by the party as the candidate nominated by her to contest for the scheduled Local Government Election on her platform.
16. That on the 26th day July, 2008, I contested the election into the councillorship seat of Ogugu Ward II under the platform of the 3rd Defendant.
17. That I won the said election under the platform of the Peoples’ Democratic Party (P.D.P).
18. That when I went along with the other councilors elected under the platform of the 3rd Defendant, the chairman of the 2nd Defendant refused to issue me with the certificate of return.
20. That later, I discovered that the chairman of the 3rd Defendant is trying to substitute the name of the 4th Defendant for my name as the councillor elect for Ogugu Ward II
21. That his substitution is taking place after the election has been held and result announced in my favour.
27. That I know as a fact that the 1st to the 3rd Defendant are only trying to substitute the name of the 4th Defendant for my name after the election has been worn (sic) by me.
In the further and better affidavit, the Appellant stated thus in paragraphs 5 and 24:
5. That I was never substituted by my party before or during the election of 26th July, 2008.
24. That at no time did the said executives of my party or the 3rd Defendant resolved to or substituted me.
It is, evident from the above reproduced paragraphs of the Appellant’s Affidavits that the gravamen of the Appellant’s case at the lower court is whether going by the provisions of SECTIONS 23 and 59 of the Kogi State Electoral Law, 2004 it is proper for the Respondents to substitute, him after he has contested and won an election which the 4th Respondent did not contest for. The Appellant further exhibited certified true copies of all the results in Olamaboro Local Government Area Councillorship election, as Exhibits 2 and 2A -21 Exhibit 2 is the certified true copy of the Results declared by the 2nd Respondent in the councillorship election in Olamaboro Local Government Council. It also shows, that the 4th Respondent did not participate in the election. See also Exhibits 2A – 2I.
From the foregoing, I am of the firm view that the case before the lower court is .that, of wrongful substitution and not undue return as held by the trial court. According, it is my view that SECTION 71 of the Kogi State Electoral Law 2004 is inapplicable in this case.
SECTION 71 provide thus:
“No election and no return at an election under this law shall be questioned in any manner other man by a petition complaining of an undue election or undue return (in this law referred to as an “election petition”), presented in accordance with the provisions of this law and in which the person elected or returned is joined as a party.
It is contended for the Respondents that this matter is post election matter and the competent court to try the matter is the Election tribunal established under Section 70 of the Kogi State Local Government Electoral Law 2004. I agree with S.A. Agada for the 1st, 3rd and 4th Respondents that this matter is a post election matter only to the extent that the originating summons was filed after the Election, but the Appellant cannot approach the Election Tribunal for remedy because the claim of the Appellant does not fall under Section 74 of the Local Government Electoral Law 2004. The substitution of the Appellant took place after he contested and won the election and not before or during the election and is not therefore within the jurisdiction of the Election Tribunal to entertain. Pre-election disputes encompasses the stage of conducting party primaries to holding of actual elections on the other hand, post-election disputes contemplate actual election which is challengeable on the ground of undue election or undue return albeit on specific grounds as prescribed, in the instant case, by Section 74(1) (a-d) of the Local Government Electoral Law of Kogi State, 2004. Therefore, post election disputes come under the exclusive jurisdiction of the Electoral Tribunal as established under Section 70 of the Local Government Electoral Law 2004.
In the instant case, the substitution of the Appellant took place after election has been held and result announced in his favour. Once the action of the Plaintiff does not challenge the conduct of an election, the Tribunal will have no jurisdiction. The appropriate venue for the Plaintiff to ventilate his grievance is the High Court or the Federal High Court and not Election Petition Tribunal as canvassed by the Respondents and held by the trial court. See P.D.P VS K.S.I.E.C. (2006) 3 NWLR (PT968) 56G, OBI VS INEC (2007) 11 NWLR (PT.1046) 565.
Even though the nomination, sponsorship and substitution of candidates precede the election and are thereby pre-election matters over which regular courts have jurisdiction, this present case present a novel situation. Novel in the sense that the substitution was made after the Appellant contested and won the election. This court and indeed all courts in this country have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low, get the justice which their case deserves.
In AMAECHI VS INEC (2007) 9 NWLR (PT 1040) 504, the Supreme Court held that SECTION 34 of the Electoral Act, 2006 which deals with substitution of a candidate for an elective post, is justiciable. It is the court’s view that there must be a check on whether the laid down procedure is followed in the process of substitution of a candidate, at the instance of the person adversely affected. This procedure can be challenged in court to determine whether it complies with relevant provisions of the Electoral Act on substitution of candidates. Even though there is no corresponding obligation as in Section 34 of the Electoral Act, 2006 in the Kogi state Local Government Electoral Law, 2004, nonetheless, there is duty on the Court to look at the circumstances of substitution and determine whether the Plaintiff has a cause of action.
In view of the circumstances of this case as highlighted in this judgment, I am of the candid view that the lower court and not the Election Tribunal has jurisdiction to hear and determine the Appellant originating summons. I therefore resolve this issue in favour of the Appellant.
In arguing issue two, to wit:
“Whether on the facts before the trial court, the Appellant was entitled to all the prayers sought by him”.
A.M. Aliyu, Esq., learned counsel for the Appellant submitted that going by the findings of the trial court, at page 297 of the Records; it is the Appellant who contested and won the election under the platform of the P D P According to him having found that the Appellant was a victim of injustice and flagrant violation of the law, the natural thing for the learned trial Judge was to have granted all the reliefs of the Appellant. He relied on the case of AMAECHI VS. INEC (2Q08) 10 WRN 1 at 110. He cited also the case of ABIODUN VS. C.J. KWARA STATE (2007) 18 NWLR (PT 1065) 109 at 159 – 160.
It is his view that the trial court having failed to properly carry out its duty, this Honourable Court, by virtue of SECTION 16 of the Court of Appeal Act can exercise the powers of the trial court and grant all the reliefs sought by the Appellant. A.M. Aliyu for the Appellant referred this court to Exhibit 2 on page 132 of the Record and urged this court to grant all the reliefs claimed by the Appellant. He referred also to the case of ADELEKE VS. O.S.H.A. (2006) 16 NWLR (PT. 1006) 608 at 672 PARAS E-F and 714 PARAS D-E and urged this court to answer issue 2 in the affirmative, allow the appeal of the Appellant and grant the reliefs sought by him at the trial court.
In his response, S.A. Agada, Esq., learned counsel to the 1st, 3rd and 4th Respondents submitted that the comment of the lower court on page 297 is a mere obiter and cannot form the basis of granting any relief to the Appellant. According to him, it is only the case of the Appellant that was considered by the trial court, to ascertain whether the trial court had jurisdiction or not. It is his view that the matter having not been heard on its merits, it is too premature for this court to grant or not grant the reliefs sought by the Appellant at the lower court. It is his view that, it is after the Appellant has satisfied the court that the lower court has jurisdiction to try the matter that a consideration of the case of the parties can be done on the merits. He respectfully urged this court to so hold.
In his own response, I.O. Alhassan, Esq., counsel for the 2nd Respondent submitted that the general powers of the Court of Appeal, conferred on the Court of Appeal by virtue of SECTION 16 of the Court of Appeal Act is not unlimited and cannot be relied upon in every case. He referred to the cases of COMPUTOIR LTD. VS. OGUN STATE WATER CORP (2002) 4 SCNJ 342 at 353; LAGGA VS. SARHUNA (2009) ALL FWLR (PT.455) 1617 at 1661 – 1662 PRAS F-D, and submitted that SECTION 16 of the said Act cannot be involved in this case as the matter has not been tried on its merit.
I O. Alhassan, Esq., for 2nd Respondent further submitted that, where this Honourable Court holds that the lower court has jurisdiction to try this matter, the proper step to take is to remit the suit back to the lower court for hearing, since the trial of the suit will entail evidence taking and evaluation of same before arriving at a final decision. He relied on the case of LAGGA VS SARHUNA supra 1667. He finally submitted that the circumstances of this case is not one in which the Court of Appeal should invoke its power under SECTION 16 of the Court of Appeal Act and urged this court to dismiss the Appeal as being frivolous, lacking in merit and an abuse of Court process.
Having considered the arguments of counsel on both sides with regards to this issue, and having held supra, that the trial court has jurisdiction to hear the Appellant’s originating summons, the question that follows is, whether this case should be remitted back to the High Court to decide on the matter one way or the other.
Learned counsel for the Appellant has asked this Honourable Court , to invoke Section 16 of the Court of Appeal Act and grant all the reliefs claimed by the Appellant in his originating Summons. On their part, learned counsels for the Respondents have urged this Court not to decide the Originating Summons because this appeal has arisen only from the Preliminary Objection on jurisdiction.
I have taken a look at the Preliminary Objection and the grounds thereof earlier quoted in the judgment and I have also looked at the arguments of counsel and the summary of the arguments in the ruling of the lower court and it is my view that all that needs to be said in the merit of the claim has already been said in the Records.
Since it has been held earlier that the case before the lower court, even though it deals with substitution of the Appellant with the 4th Respondent, is not a pre-election matter, but a post-election matter, because the substitution was, made after the Appellant contested and won the election but was refused to be sworn in, and instead the 4th Respondent who has not contested the election was sworn in his place. Therefore, being a case of wrongful substitution of the candidate, it is my view that it is appropriate for this Honourable Court to invoke the provisions of Section 16 of the Court of Appeal Act and determine the matter, in view of the fact that the res of the dispute, that is, who is the rightful councillor representing Ogugu Ward II in Olamaboro Local Government Council before the tenure ends next year, should be determined without further delay, and the interest of justice since all the facts and materials to take a decision is before the Court and the lower court has failed to do what it ought to have done. I have held that the Court below did not lack the jurisdiction to entertain the suit.
Section 16 of the Court of Appeal Act provides as follows:-
“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any position which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of the Court or in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
It is my firm view that the provisions of Section 16 of the Court of Appeal Act quoted supra constitute the enabling power by which this Court can now adjudicate to finality in this matter, given the present state of facts.
The general purport of the Court of Appeal Act is to enable the court of Appeal to exercise all such regular and lawful inherent powers that are open to it with a view to arriving at just and expeditious determination of a matter properly before it on appeal. In the instant case, the trial court did not determine the reliefs claim by the Appellant in the originating summons on the ground of want of jurisdiction.
In LADOJA VS INEC (2007) 12 NWLR (PT. 1047) 119 at 186, the Supreme Court, per Aderemi, JSC said:
“Law, it must be said cannot be wanting in dispensing justice. The Court below has failed to do what it ought to have done, in the interest of justice. I have just said that the Court below did not lack jurisdiction to entertain the suit. The real issue before us can be distilled from the grounds of appeal contained in the notice. All the materials needed to take a decision on this crucial issue are now before us. I still say that the end of justice will be defeated if this appeal is remitted to the Court below to determine the real issue. It is for this reason, if this Court will justify itself for adjudication in the matter in controversy here once and for all that the provisions of Section 22 of the Supreme Court Act must first be invoked.”
Also, in the case of ATTORNEY-GENERAL OF ANAMBRA STATE VS OKEKE (2002) 12 NWLR (PT.782) 572, the Supreme Court, per Ayoola JSC at pages 606-607 had this to say:
“This appeal brings once again into question the true scope of powers of “full jurisdiction” given to the Court of Appeal under section 16 of the Court of Appeal act….. It is not disputed that the Court of Appeal has ample powers under Section 16…… The question is what are the limits of those powers. Such limits are to be determined case by case and not by a priori general propositions.
The Supreme Court in the case of PETER OBI VS INEC (2007) 11 NWLR (PT.1046) 560, set out the conditions for bringing to play and they are summarised as follows:-
1. The lower court or trial court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it.
2. The real issue raised by the claim of the Appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal.
3. All necessary materials must be available to the Court for consideration.
4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
5. The injustice or hardship that will follow, if the case is remitted to the Court below must be dearly manifest itself. See also AGBAKOBA VS INEC (2008) 18 NWLR (PT.1119) 489.
Section 16 of the Court of Appeal Act is similar to Section 22 of the Supreme Court Act. These conditions as enunciated above, have informed important landmark decisions in this connection, see PETER OBI VS INEC (2007) 11 NWLR (PT.1046) 56O, AMAECHI VS INEC (2008) 5 NWLR (PT. 1080) 227; INAKOJU VS ADELEKE (2007, 4 NWLR (PT 1025, 427.
In the instant case, all that the Appellant is calling for determination is whether the Appellant having contested and won the election held on the 26th July, 2008 into the office of councillor for Agugu Ward II; in Olamaboro Local Government Council can be substituted by the 1st and 3rd Respondents with the 4th Respondent who has not contested the said election.
It has been submitted on behalf of the 1st, 3rd and 4th Respondents that the submission of the Appellant’s name was done in error. In their Counter Affidavit to the Originating Summons deposed to by the 4th Respondent, on behalf of himself and the 1st and 3rd Respondents, Exhibits A,B,C,D,E,F and G were annexed thereto. In UGWU VS ARARUME (2007) 12 NWLR (PT.1048) 365, the Supreme Court held inter, alia that “error” is not a cogent reason for substituting the parties candidates, especially after election was held and results declared.
It is instructive to note that the 4th Respondent’s Exhibit D, which is the ELECTORAL. OFFICERS RULING AS TO VALIDITY OF NOMINATION is fmpari materia with the Appellant’s Exhibit E, attached to the Appellant’s Affidavit in support of the Originating Summons. Both Exhibits were dated the 26th day of June, 2008 and signed by the chairman of the Kogi state Independent Electoral Commission. The reason given by the 1st, 3rd and 4th Respondents is that the Appellant’s name was, submitted, in error, This was buttressed by the 2nd Respondent in paragraphs b, c, d and e of the 2nd Respondent’s Counter Affidavit to the Originating Summons. The paragraphs are hereby reproduced.
b. That on the 24th day of June, 2008, the State Chapter, viz, the State Headquarters of the 3rd Defendant sent a list of its candidates for Chairmanship/Councillorship for Olamaboro Local Government Council.
c. That the said list contained the name of the claimant as the 3rd Defendant’s Councillorship candidate for Ogugu II in Olamaboro Local Government and that fame was signed by the State Chairman of the 3rd Defendant on the 24th June, 2008. The said list is hereby annexed as Annexure’A’.
d. That on the 26th day of June, 2008 he received a letter written by the State Chairman of the 3rd
Defendant requesting to replace the name of the Claimant with that of the 4th Defendant and also to replace the name of one Ibrahim Bello of Ukwu Ward in Kogi Local Government Area with that of Abdulhamid Umar. The said letter is dated 25th June, 2008 and it is hereby annexed as Annexure ‘B’.
e. That he upon receipt of the letter referred to in paragraph 3(d) above directed a reply to be written on the same 26th June, 2008 to the State Chairman of the 3rd Defendant conveying his approval of the replacements sought. The letter of approval is dated the 26th day of June, 2008 and it is hereby annexed as annexure ‘C’ (see pages 74-75 of the Record).
Without prejudice to the 1st, 3rd and 4th Respondents’ Exhibit D, on the 21st day of July, 2008, the Appellant was issued a letter requesting him to appear before the Kogi State Independent Electoral Commission, Olamaboro Local Government Area Okpo. The said letter was signed by one Haruna Ebute, Assistant electoral Officer Olmaboro Local Government Okpo and was marked Exhibit D. (See page 15 of the Records.)
What then is the purport of this letter (i.e. Appellant’s Exhibit D) in view of the deposition made by the Respondents that the Appellant was properly substituted on the 26th day of June, 2008, when the letter in question was dated the 21st day of July, 2008?
I am also mindful of the letter from the office of the chief Whip, Kogi State House of Assembly dated the 4th day of September, 2008 with the following recommendations:
1. That SIEC Chairman be made to release Mr. Itodo’s Certificate of return
2. That the Olamaboro Local Government Area Chairman be directed to swear in Mr. Michael Itodo as a matter of urgency
3. That the SIEC Chairman along with Olamaboro chairman be summoned to the floor of the Kogi state House of Assembly to explain the reasons behind their action.
The said letter was signed by Hon. Godwin Osiyi, the Chief Whip. (See page 145 of the Records). The attention of this Court is also drawn to the Appellant’s Exhibit 2, which is the declaration of Result for the councillorship election (see page 132 of the Records.)
From the totality of all the materials before this Court, I am of the firm view that the Appellant was duly nominated by the Olamaboro Chapter of the P.D.P. in Kogi State to run for the post of councilor representing Ogugu Ward II in the Local Government Council elections held on the 26th day of July, 2008 in Kogi state. It is also my view that he contested for the said position in the election and was returned as the winner. The Appellant therefore, is the lawfully elected concillor representing Ogugu Ward II in Olamaboro Local Government Council election held on the 26th day of July, 2008 in Kogi State. This issue is also resolved in favour of the Appellant.
Consequently, having resolved the two issues in favour of the Appellant, this appeal is therefore meritorious and it is hereby allowed. The Ruling of the trial court declining jurisdiction delivered on the 7th day of May, 2009 is hereby set aside. Judgment is hereby entered for the Appellant and the following reliefs are hereby granted:
1. A declaration that the 3rd Defendant cannot substitute the 4th Defendant for the claimant who contested for and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the election organized by the 2nd Defendant on the 26th July, 2008.
2. A declaration that the refusal by the 1st Defendant to swear in the claimant along with other elected councilors on the 30th of July, 2008, is illegal, unconstitutional, null and void and constitutes a flagrant violation of the claimant rights.
3. A declaration that the 4th Defendant who did not contest the election held by the 2nd Defendant on the 20th July, 2008 cannot be sworn in by the 1st defendant as the councilor representing Ogugu Ward II in Olamaboro Local Government Council.
4. A declaration that the 2nd Respondent cannot with hold the certificate of return of the claimant who contested and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government council in the election held on the 26th July, 2008.
5. The 2nd Defendant is hereby ordered to release to the claimant his certificate of return as the councilor representing Ogugu Ward II in Olamaboro Local government Council.
6. The 1st Defendant is hereby ordered to forthwith swear in the claimant as the councilor representing Ogugu Ward II in Olamaboro Local government Council, the claimant having contested and won the election in the councillorship seat of Ogugu Ward II in the Local Government Council election held on the 26th July, 2008.
7. The 1st to the 3rd defendants are hereby restrained either by themselves, their agents, privies otherwise howsoever from putting forward and swearing in the 4th Defendant or any other person other than the claimant as the councilor representing the Ogugu Ward II in Olamaboro Local government Council.
8. The 4th Defendant is hereby restrained from parading, representing and or howsoever putting himself forward as the councilor representing Ogugu Ward II in Olamaboro Local government Council.
THE CROSS APPEAL
The 1st, 3rd and 4th Respondents being aggrieved by the comments made by the learned trial judge at page 297 of the Records also appealed to this Honourable Court, vide a Notice of Cross Appeal, filed on the 2nd day of February, 2010 and deemed properly filed on the 8th of March, 2010, containing two (2) grounds of appeal.
The grounds of cross appeal without their particulars are hereby reproduced:
GROUNDS OF CROSS APPEAL
GROUND ONE:
The lower court erred in law when it made comments of the case and said as follows:-
“When a body corporate in the position of the 2nd Defendant/Applicant (Kogi State Independent Electoral Commission) decides not to issue a certificate of return to the claimant in view of especially Exhibit 2 and all other Exhibits attached to the affidavit and better and further affidavit of the claimant in this case in whatever guise, is not the hallmark of a civilized society; which expected to obey the laws and operate a system that observes and respects the rule of law which is the bedrock of true Democracy. It is sad that such injustice is being perpetrated at this age and it is absurd.” when the court was yet to hear or consider the other side of the case but was only dealing with preliminary objection and this has led to serious miscarriage of justice.
GROUND TWO:
The trial court erred in law when it held that this is not a case of intra party, political and internal affairs of the 3rd Appellants (Sic) and dismissed the preliminary objection of the 1st, 3rd and 4th Respondents when it should have upheld its objection and this has led to serious miscarriage of Justice.
Parties filed and exchanged briefs of argument. In the Cross Appellants’ brief settled by G.B. Onjewu, Esq., the following two issues were distilled for the determination of the cross appeal; namely:
1. Whether the lower court was right in making comment on the merit of the case when it was
yet to hear or consider the case on merit but only dealing with preliminary points.
2. Whether the Lower Court was right when it held that this is not a case of intra party, political and internal affairs of the Appellant and dismissed the preliminary objection of the 1st, 3rd and 4th Respondents/Cross Appellants.
In the Cross-Respondents Brief of Argument, settled by S.O. Alhassan, Esq., the cross Respondent challenged, by way of preliminary objection, the competence of this cross appeal on the following grounds:
1. The statement forming the basis of the complaint in ground one of the cross Appellant’s Notice of Appeal was made obiter
2. Ground Two of the Cross Appellant’s Notice merely seeks to affirm the order of the lower court striking out the cross Respondent’s case on the additional ground that the Cross-Respondent’s complaint at t the trial court was an internal affair of the political party and not justiciable. The Cross-Appellant ought to have filed a Respondent’s Notice.
Without prejudice to the outcome of the preliminary objection, the Cross-Respondent distilled the following issues for the determination of the cross appeal to wit:
1. Whether the teamed trial Judge was right to make observation on the basis of documentary evidence that were before him?
2. Whether the Cross Respondent’s complaint of unlawful substitution is within the domestic jurisdiction of a political party and not justiciable
At the hearing of the Cross Appeal, learned counsel for the Cross Appellants G.B. Onjewu, Esq., adopted and relied on the Cross Appellants’ Brief of Argument, dated the 1st day of March, 2010 and filed on the 8th day of March, 2010 and deemed properly filed on the 8th of March, 2010 and urged this Honourable Court to allow the cross appeal.
Learned counsel for the Cross Respondent, S.O. Alhassan, Esq., adopted and relied on the Cross Respondents Brief of Argument dated and filed on the 6th of April, 2010 and urged this Honourable Court to dismiss the cross appeal.
Before going into the issues for determination of the Cross Appeal, let me pause to consider the preliminary objection raised by the Cross Respondent in his Brief of Argument on the competence of the cross appeal, wherein this Honourable Court was urged to hold that the cross appeal is incompetent and liable to be struck out.
In arguing his two grounds of preliminary objection, learned counsel for the Cross Respondent submitted that the comments complained of by the Cross Appellants in ground one of the cross appeal was made obiter and did not form ratio of the order made by the trial court. He referred to pages 292, 296, 297 and 300 of the Record. S.O. Alhassan, Esq., for the cross Respondent submitted that an observation made obiter by a court does not affect the decision and cannot be the subject of a ground of appeal to either the Court of Appeal or the Supreme Court. He relied on the authority of OWHONDA VS EKPE CHI (2003) 17 NWLR (PT.849) 326 at 351 PARA F, as well as AGEH VS TORTYA (2003) 6 NWLR (PT 816) 385 at 397 – PARA H and EGBE VS ALHAJI (1990) 1 NWLR (PT 128) 546 at 590 PARA A, and OSOLU VS OSOLU (1998) 1 NWLR (PT 534) 532 at 552.
It is the view of learned counsel for the Cross Respondent that, any ground of appeal that does not relate to the ratio decidendi of the judgment or ruling of the court appealed against would be incompetent.
He cited the following authorities:
ISHOLA VS AJ/BOVE (1998) 1 NWLR (PT532) 71 AT 79, and EDE VS OMELEKE (1992) 5 NWLR (PT 242) 428 A T 453
His final submission is that ground one of the cross appeal which does not relate to the ratio of the judgment appealed against is incompetent and he urged this court to so hold.
As regards ground 2 of the cross appeal, S.O. Alhassan, Esq., for the Cross Respondent referred this Honourable Court to pages 269 – 270 of the Records and submitted that since the essence of the Cross Appellants’ prayers before this Honourable Court is to affirm the decision of the trial court on the additional grounds canvassed by them, the appropriate action is for them to file a Respondent’s Notice rather than a cross appeal. He placed reliance on the following authorities: ORDER 9 RULE 2 of the Court of Appeal Rules, 2007 ELEMA VS N.E.P.A (2000) 2 NWLR (PT.644) 337 at 340. WILLIAMS VS DAILY TIMES (1990) 1 NWLR (PT. 124) 1 at 21-22, UKPO VS ADEDE (2000) 10 NWLR (PT.674) 1 at 1S. ANYA DUBA VS N.B.T CO (1990) 1 NWLR (PT.127) 397. BRIGGS VS BOB MANUEL (2003) FWLR (PT. 146) 945 at 955.
S.O. Alhassan, Esq., concluded by submitting that since the Cross Appellants are seeking to retain the order of the lower court, they cannot do so by cross appeal but by Respondent’s Notice. He submitted that Ground 2 of the cross appeal is therefore incompetent and liable to be struck out and he urged this Honourable Court to so hold.
After a careful consideration of the submissions of learned counsel for the Cross Respondent on the grounds of the Preliminary Objection, it appears to me that a reproduction of the comments made by the learned trial judge will be most appropriate.
At page 297 of the Records, the learned trial judge said:-
“When a body corporate in the position of the 2nd Defendant/Applicant (Kogi State Independent
Electoral Commission) decides not to issue a certificate of return to the claimant in view of especially Exhibit 2, and all other Exhibits attached to the affidavit and better and further affidavit of the claimant in this case in whatever guise is not the hallmark of a civilized society; which is expected to obey the laws and operate a system that deserves and respects the rule of law which is the bedrock of true democracy. It is sad that such injustice is being perpetuated at this age and it is absurd.”
Learned counsel for the Cross Respondent submitted that this comment, was made obiter and cannot be the basis of a ground of appeal. Similarly, G.B. Onjewu, Esq., for the 1st, 3rd and 4th Respondents, who are the Cross Appellants in this cross appeal submitted; at page 7 of the 1st, 3rd and 4th Respondents’ Brief of Argument in the main appeal, while responding to the Appellant’s issue thus:
“It is humbly submitted that the comment of the trial judge on page 297 is a mere obiter and cannot form the basis of granting any relief to the Appellant.”
According to the Black’s Law Dictionary, 7th Edition an obiter dictum is a judicial comment made during the course of delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not presidential. Strictly speaking, an ‘obiter dictum’ is a remark made or opinion expressed by a judge in his decision upon a cause by the way, that is,, incidentally or collaterally, and not directly upon the question before the Court, or it is any statement of law enunciated by the judge or Court merely by way of illustration, argument, analogy or suggestion…In the common speech of lawyers, all such extra judicial expressions of legal opinion are referred to as obiter data.
This definition has been codified into our judicial system with a myriad of authorities to the effect that an observation made obiter by a Court does not affect the decision and cannot be the subject of a ground of appeal to either the Court of Appeal or the Supreme Court. See the case of OWHONDA VS EKPE CHI (2003) 17 NWLR (PT.849) 326 at 351. Thus an obiter dictum carries no legal weight in a case. It attracts no interference from the appeal court in relation to what the judge said.
I therefore agree with the submissions of learned counsel for the Cross Respondent that any ground of appeal that does not relate to the ratio decidendi of the judgment or ruling of the court appealed against would, be incompetent. See ISHOLA VS AJIBOYE (1998) 1 NWLR (PT 532) 71 AT 79, and EDE VS OMELEKE (1992) 5 NWLR (PT 242) 428 AT 453. Accordingly, ground one of the cross appeal, which does not relate to the ratio of the judgment appealed against is incompetent and is hereby struck out along with all the argument canvassed therein.
Tine motion filed by the learned counsel for 1st, 3rd and 4th Respondents before the lower court challenged the jurisdiction of the trial court on the ground that the Appellant’s claim is a domestic affair of the party and prays for an order striking out the suit for being incompetent and that the Court lacks jurisdiction to entertain same since is the internal affair of the 3rd Respondent and for other Orders.
At the conclusion of hearing of the applications, the learned trial judge, found for the Respondents and declined jurisdiction to entertain the suit.
I therefore agree with the submissions of learned counsel for the Cross Respondent that since the essence of the Cross Appellants’ prayers before this Court is to affirm the decision of the trial court on the additional grounds canvassed by them, the appropriate action is for them to file a Respondents’ Notice rather than a cross appeal.
By ORDER 9 RULE 2 of Court of Appeal Rules 2007,
“A Respondent who desires to contend on appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.”
Therefore, when a Respondent agrees with the judgment appealed against but at the same time wants the judgment varied or affirmed on other grounds, he is duty bound to file a Respondent’s notice. On the other hand an appeal filed by a Respondent is a cross appeal and it is filed in situations where the Respondent seeks a reversal of the decision of the trial court. See EJURA VS IDRIS (2006) 4 NWLR (PT 971) 538 at 551,
In BRIGGS VS BOB MANUEL (2003) FWLR (PT.146) 945 at 955 paras D-F, the Court held that
“…….Where a complete reversal of a decision of a lower court is sought by a Respondent, it should be by cross appeal and not Respondent’s notice…The traditional role of Respondent’s notice is to seek to affirm the Judgment appealed against on other grounds than may have been given in the judgment. The essential position of a Respondent who files Respondent’s notice is that there are other grounds which could either be in substitution for some of the reasons giving for it or in addition to the ground for the judgment.”
Consequent upon the above, Ground 2 of the Cross Appellants’ Notice of Cross Appeal is also incompetent and is accordingly struck out.
This preliminary objection therefore succeeds.
It is trite that where an issue for determination is predicated upon an incompetent or defective ground of appeal, such issue becomes unarguable. See THOR LTD VS F.C.M.B LTD (2002) 4 NWLR (PT.757) 427, NKPUMA VS STATE (1995) 9 NWLR (PT421) 505 at 507. Similarly, an issue for determination which is based on incompetent ground(s) of appeal is at large and goes to no issue. Such issue will be struck out as worthless. This is because it is the grounds of appeal that provide the legal basis for any attack on the judgment or ruling of a trial court. It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination. See JOHN HOLT VENTURES LTD VS OPUTA (1996) 9 NWLR (PT.470) 101 at 113, U.B.A PLC VS A.C.B. (NIG) LTD (2005) 12 NWLR (PT.939) 232. Consequently, this cross appeal, being based on incompetent grounds of appeal is hereby dismissed.
The costs of N100,000.00 is awarded to the Appellant/Cross Respondent against the Respondents/Cross Appellants.

JIMI OLUKAYODE BADA, J.C.A: I read before now the lead judgment of my Lord UWANI MUSA ABBA AJI, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
The appeal is meritorious and it is allowed by me while the Cross Appeal lacks merit and it is dismissed.
I endorse the consequential orders made in the said lead judgment.

ABDU ABOKI, J.C.A.: I have read in draft the judgment delivered by my learned brother, Uwani Musa Abba Aji J.C.A. I agree with my Lord that this Appeal is meritorious and should be allowed while the Cross-Appeal which is based on incompetent Grounds of Appeal should be dismissed.

Appearances

A.M. Aliyu, Esq.,
S.O. Alhassan, Esq.,For Appellant

AND

S.A. Agada, Esq.,
T.O. Anawo, Esq.,
I.O. Alhassan,
F.A. OgunmolaFor Respondent