MUSA BUBA AMSHI v. FEDERAL REPUBLIC OF NIGERIA (2019)

MUSA BUBA AMSHI v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13763(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 20th day of August, 2019

CA/J/7C/2019

RATIO

JURISDICTION: IMPORTANCE

The principle of law with regards to statutory conditions precedents to the institution of an action and the jurisdiction of a Court is settled. Wisdom demands that I begin with the landmark decision of GABRIEL MADUKOLU & ORS. V. JOHNSON NKEMDILIM (1962) 2 ALL NLR 587 AT 595; (1962) 2 S.C.N.L.R 341 AT 343, PARA C-D, where the Supreme Court laid down the conditions to determine the competence of a Court to exercise jurisdiction over a matter. From this timeless decision of the apex Court, a Court will only be competent if:
1. “It is properly constituted as regards numbers and qualifications of the numbers of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” PER UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION: EFFECT OF A COURT NOT HAVING JURISDICTION
See also NDAEYO V. OGUNAYA (1977) 1 S.C 7 AT 14, PARAS A ? B wherein the Supreme Court, per Idigbe, J.S.C warned that:
“Where, therefore, a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”
The above immaculate statements of the law are found on the holden of Karibi-Whyte, J.S.C in NWOKORO V. ONUMA (1990) NWLR (PT. 136) 22 AT 32; wherein his Lordship held as follows:
“It is a fundamental principle of legality that where an act or course of conduct fails to meet with the requirements prescribed by law, such that the non-compliance renders that act or course of conduct devoid of legal effect, no legal consequences flow from such acts or course of conduct.” PER UCHECHUKWU ONYEMENAM, J.C.A.

ALL PRE-CONDITIONS TO STARTING A MATTER MUST BE FULFILLED AND HOW IT AFFECTS JURISDICTION
Again, Tobi, J.S.C in INAKOJU V. ADELEKE (2007) 4 NWLR (Pt. 1025) P. 423 on the same note said:
“Where the constitution or a statue provides for the pre-condition for the doing of a thing or force the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. The common and popular pet expression for it is ‘condition precedent’. …The Courts are bound to enforce the mandatory provisions of a substantive law including the constitution. It is the duty of all Courts to give effect to legislation. Therefore, parties cannot by consent or acquiescence or failure to object, nullify the effect of a statute or Constitution. In other words, it is the duty of a Court to enforce mandatory provision of an enactment”.
A year after, the Supreme Court, in DREXEL ENERGY AND NATURAL RESOURCES LTD V. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (PT. 1119) 388 AT 431, PARAS. D-E emphatically restated the law that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks the jurisdiction to entertain the same. PER UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION: WHETHER A LITIGANT CAN CONFER JURISDICTION ON ANY COURT
The law is trite and well settled that no litigant can confer jurisdiction on any Court where the Constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. See: JIKANTORO & 6 ORS. V. DANTORO & 5 ORS. (2004) 5 SC (PT. 2) PAGE 1 AT 21; (REPORTED AS NDAYAKO V. DANTORO (2004) 13 NWLR (Pt. 889) 187. … PER UCHECHUKWU ONYEMENAM, J.C.A.

ELECTION PETITION: UNDER WHAT LAW CAN COMPLAINTS OF ELECTION PETITION BE BROUGHT

With reference made to the case of OBASANJO & 2 ORS. V. YUSUF & ANOR. (2005) 20 WRN PAGE 1 AT 86; (2004) 9 NWLR (PT. 877) 144 AT PAGE 210, PARAS. B-C, this Court held and said:
Complaints against the conduct of election can only be found in the Electoral Act, as the Act provides breaches in the conduct of elections. The Electoral Act is a comprehensive Act which deals with the conduct of elections in this country. The Courts are bound to look into the Act in cases of breach in the conduct of elections.” PER UCHECHUKWU ONYEMENAM, J.C.A.

JURISDICTION: WHETHER A COURT CAN CONFER ON ITSELF JURISDICTION

The law is well settled that where a particular Court or tribunal has been specifically conferred with a special power to adjudicate upon a matter or action as in the instant case, it is not the business of any other Court or tribunal which lacks such express power to arrogate to itself the power to entertain such a matter or action. See: ENAGI V. INUWA (1992) 3 NWLR (PT. 231) 548 AT 565. PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

MUSA BUBA AMSHI Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The decision of the High Court of Borno State overruling the objection of the Appellant on 13th November, 2018 and holding that the Court had jurisdiction to hear and determine the case is subject of this appeal.

The Appellant alongside two other persons were arraigned before the Borno State High Court in Charge No: BOHC/MG/CR/51/2018 by the Economic and Financial Crimes Commission EFCC for offences of criminal conspiracy to corrupt public officers; corrupt procurement of monetary benefit; receipt of monetary benefit; and corrupt conferment of monetary benefit on another under the Corrupt Practice and Other Related Offences Act 2000.

After taking his plea of not guilty, the prosecution called 5 witnesses to prove its case. And upon the close of the prosecution’s case the Appellant who was the 3rd accused person at trial together with his other co-accused persons raised objection to the jurisdiction of the trial Court to continue with the trial. The Appellant?s contention was that from the evidence led, the trial Court lacks jurisdiction to hear and determine the

case as mandatory condition precedent for the initiation of the case had not been fulfilled.

The learned trial Judge over ruled the objection and held that the Court had jurisdiction to hear and determine the case. Dissatisfied with the ruling, the Appellant sought and obtained the leave of the trial Court to appeal to this Court on 28th November, 2018. The Appellant pursuant to the leave granted filed his notice and grounds of appeal on 28th November, 2018 containing 2 grounds of appeal.

From the records the brief fact is that the Appellant who was then a public servant and staff of Independent National Electoral Commission INEC; committed a crime to wit: receiving bribe from one Jummai Lawan Ibrahim in the course of performance of his official duties as a public officer. The Appellant was accordingly charged under the Corrupt Practice and other related Offences Act, 2000.

In this Court after due filing and exchange of briefs, the appeal was heard on 23rd May, 2019; wherein ZANNA HAMZA Esq. appeared for the Appellant, and KHALID SANUSI Principal Legal Officer with EFCC represented the Respondent. Mr. Hamza without objection sought for and

withdrew Motion on Notice filed 17th May, for consolidation.
Mr. Hamza adopted Appellant?s brief filed 18th March, 2019 in urging the Court to allow the appeal. On his part, Mr. Sanusi adopted the Respondent?s brief filed 23rd April, 2019 in urging the Court to dismiss the appeal and affirm the decision of the trial Court.

In the Appellant?s brief prepared by Mr. Zanna Hamza, he formulated the under reproduced lone issue for the determination of the appeal.
?Whether in view of the provision of Section 150 of the Electoral Act, 2010 (as amended); Section 285(1) of the Constitution of the Federal Republic of Nigeria 1999 (as altered) and decision in F.R.N V. SOLOMON (2018) 7 NWLR (PT. 1618) P. 201, the trial Court has jurisdiction to try this case bearing in mind that the alleged offences are directly connected to the 2015 General Election.?

For the Respondent, Mr. Al? Qasim Jaafar also distilled a sole issue for the determination of the appeal to wit:
?Whether the prosecution has power to prosecute this case in the lower Court.?
?
I shall adopt the sole issue as formulated by the

Appellant for the determination of the appeal.

SUBMISSIONS ON SOLE ISSUE
Mr. Hamza submitted on the jurisdiction of a Court and its importance in the adjudication of matters. He relied on: WESTERN STEEL WORKS LTD. V. IRON & STEEL WORKERS UNION (1986) 2 NSCC (VOL. 17) 786; LABIYI V. ANRETIOLA (1992) 8 NWLR (PT. 221 33; UMANAH V. ATTAH (2006) 17 NWLR (PT. 1009) 503 SC.

The learned counsel rehashed the charge against the Appellant at the trial Court and argued that the evidence at the trial Court revealed beyond peradventure that the offences were allegedly committed during and in connection with the presidential election held across Nigeria, including Borno State on 28th March, 2015. He attempted the definition of influence, to submit that by the provisions of SECTIONS 138 (1) (B); 149 AND 150 (1) AND (2) OF THE ELECTORAL ACT, 2010; OLALOMI IND. LTD V. N.I.D.B. LTD. (2009) 16 NWLR (PT.1167) P. 266; FEDERAL REPUBLIC OF NIGERIA V. ENWENEDE SOLOMON & ORS. (2018) 7 NWLR (PT. 1618) 201; the trial Court or a magistrate Court can only exercise special powers/exclusive jurisdiction under Section 150(1) of the Electoral Act, (supra) to try such

offences, if and only if an election tribunal, pursuant to Section 149 thereof, in an election petition presented before it, makes a recommendation to INEC in that regard.

The learned counsel for the Appellant argued extensively and emphatically that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks the jurisdiction to entertain the same. He cited: DREXEL ENERGY AND NATURAL RESOURCES LTD V. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (PT. 1119) 388. He quoted holistically the apex Court?s decision in FEDERAL REPUBLIC OF NIGERIA V. ENWENEDE SOLOMON & ORS. (supra); and other related authorities on this principle in urging the Court to allow the appeal.

Mr. Jaafar, the learned counsel for the Respondent in adverse response referred to Section 138 (1) (b) of the Electoral Act, 2010 to submit that the offences as charged did not arise from the Respondent?s questioning the 2015 presidential election. He referred to Pages 24 to 69 of the records. He emphatically stated that the offences as charged which are offences of

receiving bribe, and corruptly procuring monetary benefit in favour of public officers; squarely fall under the Corrupt Practices and Other Related Offences Act 2000.

He further submitted that the case of F.R.N. V. SOLOMON (2018) 7 NWLR (PT. 1618) 201; is not applicable as he differentiated the same from the instant appeal.

Also the Respondent?s counsel relied on Section 7 (2) (f) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and Section 61 (3) of The Corrupt Practices and Other Related Offences Act, 2000; as to the powers of the Respondent to prosecute and the Court with jurisdiction to submit that the High Court of Borno State has jurisdiction to entertain the present matter.

He urged the Court to dismiss the appeal and affirm the decision of the trial Court.

RESOLUTION OF SOLE ISSUE
The principle of law with regards to statutory conditions precedents to the institution of an action and the jurisdiction of a Court is settled. Wisdom demands that I begin with the landmark decision of GABRIEL MADUKOLU & ORS. V. JOHNSON NKEMDILIM (1962) 2 ALL NLR 587 AT 595; (1962) 2 S.C.N.L.R 341 AT 343, PARA C-D,

where the Supreme Court laid down the conditions to determine the competence of a Court to exercise jurisdiction over a matter. From this timeless decision of the apex Court, a Court will only be competent if:
1. “It is properly constituted as regards numbers and qualifications of the numbers of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
See also ENYADIKE V OMEHIA (2010) NWLR (PT. 1204) 92 AT 113; A.G, FEDERATION V. ABACHA (2010) 17 NWLR (PT. 1221) PAGE 1 AT 28-29.
In any action therefore, it must be glaringly clear that all the three conditions for exercise of jurisdiction, as laid down in MADUKOLU V. NKEMDILIM (supra) are conspicuously present to robe a Court with the jurisdiction to try and determine the matter otherwise it will amount to placing something on nothing, and which same cannot stand; but

liable to collapse together with every proceeding founded on it. This follows the maxim “ex nihilo, nihil fit” which means, nothing comes from nothing. See: MACFOY V. U.A.C LTD. (1961) 3 ALL E.R. PG. 1169 PG. 1172, PER LORD DENNING, M.R. SEE ALSO SKEN CONSULT (NIG.) LTD. V. SEKONDY UKEY & ANOR.(1981) 1 S.C; MILITARY ADMINISTRAT0R OF BENUE STATE V. P.P. ULEGEDE (2001) 17 NWLR (PT.741) 194.
Ogunbiyi, J.S.C in F.R.N V. SOLOMON (supra), at Pp. 218-219 paras. H-A, while quoting Tobi, J.S.C (of blessed memory) with approval in OBASANJO V. YUSUF (2004) 5 SC ( PT. 1) 27, said:
“Jurisdiction is a very hard matter of law, which is donated by the Constitution and the enabling statute. It is also a very sensitive matter in the judicial process. Considering its very hard and sensitive nature, Courts of law must always bow to the provisions of the Constitution and the enabling statute. On no account should we remove from a Court which has jurisdiction to hear a matter to another Court which has no jurisdiction to hear it.” See also NDAEYO V, OGUNAYA (1977) 1 S.C 7 at 14, paras A-B wherein the Supreme Court, per Idigbe, J.S.C warned that: “Where, therefore, a

Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.”
The above immaculate statements of the law are found on the holden of Karibi-Whyte, J.S.C in NWOKORO V. ONUMA (1990) NWLR (Pt. 136) 22 at 32; wherein his Lordship held as follows:
“It is a fundamental principle of legality that where an act or course of conduct fails to meet with the requirements prescribed by law, such that the non-compliance renders that act or course of conduct devoid of legal effect, no legal consequences flow from such acts or course of conduct.”
Again, Tobi, J.S.C in INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) P. 423, on the same note said:
“Where the constitution or a statue provides for the pre-condition for the doing of a thing or force the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. The common and popular pet expression for it is ‘condition precedent’. …The Courts are bound to enforce the mandatory provisions of a substantive law including the constitution. It is the duty of all

Courts to give effect to legislation. Therefore, parties cannot by consent or acquiescence or failure to object, nullify the effect of a statute or Constitution. In other words, it is the duty of a Court to enforce mandatory provision of an enactment”.
A year after, the Supreme Court, in DREXEL ENERGY AND NATURAL RESOURCES LTD. V. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (PT. 1119) 388 AT 431, PARAS. D-E; categorically restated the law that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks the jurisdiction to entertain the same.

Following the position of the law and the Supreme Court decisions referred to above, the learned counsel for the Appellant submitted that by the combined provisions of Sections 138(1)(b), 149, 150(1) and (2) of the Electoral Act (supra) and by parity of reasoning on the authority of HON.JUSTICE HYELADZIRA AJIYA NGANJIWA V. F.R.N (2017) LPELR-43391; the trial Court not only lacks the requisite jurisdiction to entertain the instant Charge, but also a recommendation by an election tribunal pursuant to

Section 149 of the Electoral Act, 2019 (as amended) is a condition precedent to the invocation of the special powers/exclusive jurisdiction conferred on the Magistrate Court or the trial Court under the Electoral Act to try the alleged offences for which the Appellant stands trial.
Mr. Hamza relied heavily on the holding of the Supreme Court in F.R.N V. SOLOMON (supra), where Ogunbiyi, J.S.C in extensor held as follows:
“It is also trite that where by the rules of Court or any other rule whatsoever, the unlimited jurisdiction of the Court is curtailed by statute or the Constitution as to the subject matter or cause of action or as to a person who can bring the action, such curtailment renders the Court incompetent to adjudicate over a mater which has been taken outside its powers by such statute. Therefore, where a tribunal or special Court is set up to adjudicate over specialized matters, the powers of the normal Courts created under the Constitution will be ousted in respect of such specialized matters. The Courts have held over time that where there is a tribunal set up as special Court under state law to adjudicate over specialized matters, the

power of the state High Court, which under the Constitution is vested with jurisdiction to hear and determine any civil and criminal proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, claim or crime is in issue, is ousted. …As rightly submitted by the learned Counsel representing the respondents, it is clear that from the facts of the Charge as contained in the statement and particulars of offence as well as the proof of evidence in support thereof, all the allegation against the 1st and 2nd respondents border on irregularities as envisaged in Section 132 (1) reproduced (supra). It is all in the nature of ?corrupt/practice irregularity? upon which an election may be questioned. Such allegations are quasi-criminal in nature and it is the tribunal set up under Section 129(1) (supra) that have (sic) jurisdiction to adjudicate on the allegations as contained in the Charge sheet under reference. The law is trite and well settled that no litigant can confer jurisdiction on any Court where the Constitution or a statute or any provision of the common law says that the Court shall have

no jurisdiction. SEE:JIKANTORO & 6 ORS. V. DANTORO & 5 ORS. (2004) 5 SC (PT. 2) PAGE 1 AT 21; (REPORTED AS NDAYAKO V. DANTORO (2004) 13 NWLR (PT. 889) 187. …In summary, the complaint against Mr. Utho alleges that he collected sums of money from “influential individuals”: and it borders on electoral issues/irregularities. Mr. Bernard Utho the man in the eye of the storm, also made statements at pages 39 – 46 of the record and which border on electoral malpractice/irregularity which occurred during the conduct of the said election. With reference made to the case of OBASANJO & 2 ORS. V. YUSUF & ANOR. (2005) 20 WRN PAGE 1 AT 86; (2004) 9 NWLR (PT. 877) 144 AT PAGE 210, PARAS. B-C, this Court held and said:
?Complaints against the conduct of election can only be found in the Electoral Act, as the Act provides breaches in the conduct of elections. The Electoral Act is a comprehensive Act which deals with the conduct of elections in this country. The Courts are bound to look into the Act in cases of breach in the conduct of elections.”
In the instant case, the Delta State Local Government Law (supra) has by the provisions of

Sections 107-128 thereof, conferred special powers on Magistrate Courts in the state to try (Local Government) electoral offense. Consequently, the High Court lacks the jurisdictional competence to try the offences prescribed under Section 107-128 of the law (supra). …The law is well settled that where settled a particular Court or tribunal has been specifically conferred with a special power to adjudicate upon a matter or action as in the instant case, it is not the business of any other Court or tribunal which lacks such express power to arrogate to itself the power to entertain such as matter or action. See: ENAGI V. INUWA (1992) 3 NWLR (PT. 231) 548 AT 565. With the criminal allegations arising from the conduct of the Local Government Election in question, the provisions of the Local Government Law (supra) pertaining to elections, especially Sections 107-128 thereof ought to be strictly applied. See OBASANJO V. YUSUF (2005) 20 WRN1 AT 86; (reported as OBASANJO V. YUSUF (2004) 9 NWLR PT. 877) 144). Notwithstanding that the Information (Charge) was filed against the appellant pursuant to the ICPC Act, the Magistrate Court of Delta State has the exclusion jurisdiction

under the Local Government Law, Cap D27 2004 (supra) to try and determine the case in question. See: UTIH V. ONOYIVWE (1991) 1 SC (PT. 1) 61; (1991) 1 NWLR (PT. 166) 166; OBI V. INEC (2007) SC 268 AT 301; (2007) 11 NWLR (PT. 1046) 560. The High Court is devoid of jurisdiction to try and determine the instant case in view of the express and unequivocal provisions of the Delta State Local Government Law (supra). Section 129(1) of the Local Government Law (supra) established the Local Government Electoral Tribunal; while Section 132(1) states the ground upon which an election maybe questioned. One of the grounds is as contained in Section 132(1)(b) supra. Therefore, complaints against any wrongdoings, malpractice or corrupt practice, which occurred during the elections held on the 10th of May, 2008 in Uzere Ward can only be heard at the tribunal established pursuant to Section 129(1) supra. Again, OBASANJO & ANOR. V. YUSUF & ANOR. (2004) 5 SC (PT. 1) PG. 27 AT 50; (2004) 9 NWLR (PT. 877) 144. Any provision in the ICPC Act which tends to confer jurisdiction on the trial Court contrary to the provision of the Constitution is null and void and of no effect

whatsoever: as rightly submitted by the learned Counsel for the Respondents.”
The Appellant?s grouse in this appeal is that by the combined provisions of Sections 138(1)(b), 149, 150 (1) and (2) of the Electoral Act (supra); Section 285 (1) of the 1999 Constitution as amended; the trial Court not only lacks the requisite jurisdiction to entertain the instant charge, but also a recommendation by an election tribunal pursuant to Section 149 of the Electoral Act, 2019 (as amended) is a condition precedent to the invocation of the special powers/exclusive jurisdiction conferred on the Magistrate Court or the trial Court under the Electoral Act to try the alleged offences for which the Appellant stands trial. The above contentions of the Appellant stem on the case of F.R.N V. SOLOMON (2018) 7 NWLR ( PT. 1618) 201 and the reasoning in HON.JUSTICE HYELADZIRA AJIYA NGANJIWA V. F.R.N (2017) LPELR – 43391. Let me start by reproducing the provisions of the sections of the Electoral Act referred to.
?Section 138 (1) (b)
“An election may be questioned on any of the following grounds, that is to say:
a. ..
b. That the election was invalid

by reason of corrupt practices or non compliance with the provisions of the act”
On their part, Sections 149 and 150 (1) and (2) of the Electoral Act, 2010 (as amended) provide as follows:
“The commission shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition”
Section 150(1)
“An offence committed under this act shall be triable in a Magistrate Court or a High Court of a State in which the offence is committed, or the Federal Capital Territory, Abuja.”
Section 150(2)
“A prosecution under this act shall be undertaken by legal officers of the commission or any legal practitioner appointed by it.”
Section 285 (1) of the Constitution.
?There shall be established for each State of the Federation and Federal Capital Territory one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or tribunal , have original jurisdiction to hear and determine petitions as to whether?
?The issue here is simple, by the combined

reading of the above provisions of the law vis-a-vis the provisions of Section 7 (2) (f) of the Economic and Financial Crimes Commission (Establishment) Act 2004; and Section 61 (3) of the Corrupt Practices and other Related Offences Act, 2000; does the High Court of Borno State have the jurisdiction to hear and determine the matter subject of this appeal? The root provision of the Appellant?s grouse is Section 138 (1) of the Electoral Act which provides for grounds under which an election may be questioned. By the said Section, where there is an election, a person entitled under Section 137 of the Electoral Act to question the said election can come under any of the grounds in Section 138 (1) of the Electoral Act which grounds includes that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act. From the records and the charge in particular, although the offences as charged were committed during election, the offences did not arise from election Petition. Section 138 (1) (b) of the Electoral Act in my view relates to offences disclosed in Election Petition and not just an offence committed coincidentally

during election. From the totality of the provisions of the law reproduced above, where an election is questioned under Section 138 (1) (b) of the Electoral Act, and in the cause of the hearing of the Petition an offence of corrupt practice is disclosed against any person, the Commission shall only consider the prosecution of the person against whom an offence is disclosed if the tribunal so recommends, and in which case the Commission?s legal officer or any legal practitioner appointed by the Commission shall prosecute the person whom electoral offence of corrupt practice has been disclosed against in a Magistrate Court or High Court of a State in which the offence is committed, or the Federal Capital Territory, Abuja. This is to say that any offence of corrupt practice in an election which does not arise from nor is disclosed in an election petition is not governed by the provisions of Sections 138 (1); 149; 150 of the Electoral Act; and of course does not come under Section 285 (1) of the Constitution.
?In the instant case therefore, whereas the offences the Appellant is charged border on corrupt practices in the 2015 Presidential Election, but so

far the offences were not disclosed in an Election Petition, the prosecution of the Appellant of the offences as charged before the trial Court is not governed by the provisions of the Electoral Act reproduced above and accordingly the Prosecution herein did not need to fulfill the condition precedent of first getting a recommendation from the tribunal before prosecution, nor be legal practitioners appointed by INEC to prosecute or on the other hand be the INEC?s legal officers. The issue of the Prosecution not abiding by the conditions precedents to charging and prosecuting the Appellant of offences of corrupt practices under the Electoral Act does not therefore arise in which case the cases cited by the Appellant particularly the case of F.R.N. V. Solomon is not applicable to the instant case. With the facts and circumstances of the case at hand, the provisions of the ICPC Act which empowers the Respondent to prosecute the Appellant for offences of corrupt practices and which confers jurisdiction on the trial Court do not run counter to the provision of the Constitution as rightly submitted by the learned Counsel for the Respondent.
?Accordingly, I

hold that the High Court of Borno State has the Jurisdiction to hear and determine the charge against the Appellant the offences not being ones disclosed in election petition but offences rightly charged under the ICPC Act. I resolve the sole issue in favour of the Respondent.

This appeal therefore lacks merit, the same fails and is hereby dismissed. I affirm the decision of the High Court of Borno State delivered on 13th November, 2018; by F. Umaru, J. In Suit No. BOHC/MG/CR/51/2018.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA. just delivered.

I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add.

I also conclude that the Appeal lacks merit and I dismiss it.
I abide by the consequential orders therein contained.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, J.C.A.; and I am in agreement that the appeal lacks merit and should be dismissed.

Appearances:

ZANNA HAMZA Esq.For Appellant(s)

KHALID SANUSI Esq.For Respondent(s)

Appearances

ZANNA HAMZA Esq.For Appellant

AND

KHALID SANUSI Esq.For Respondent