NURUDEEN v. OLUWASEYI & ORS
(2020)LCN/14646(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, October 02, 2020
CA/AK/232/2020(R)
RATIO
JURISDICTION: DUTY OF COURT WHERE THE ISSUE OF JURISDICTION IS RAISED
It is trite law that wherever the issue of jurisdiction is raised, it has to be dispensed with by the Court before doing any other thing on the substantive matter. See the case of MADUKOLU V NKEMDILIM (supra) which is the ‘locus classicus’ on issue of jurisdiction. See also AJAYI V ADEBIYI (supra). PER ABDULLAHI, J.C.A.
JURISDICTION: WHAT VESTS JURISDICTION
In ARJAY LTD V AMS LTD (supra) the Supreme Court held thus:
“Jurisdiction of a Court is a matter of Law and it is vested on a Court by the Constitution and the Statute establishing the Court.”
Also in SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD V ISAIAH (supra) jurisdiction was described as:
“The fulcrum, center pin, or the main pillar upon which the validity of any Court decision stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.”
In the case of the Court of Appeal, jurisdiction is conferred on it by the 1999 Constitution of the Federal Republic of Nigeria (as amended) both original and appellate. See Sections 239, 240, 241, 242, 243, 245 and 246 of the 1999 Constitution of the Federal Republic of Nigeria. PER ABDULLAHI, J.C.A.
COURT: WHETHER A STATE ASSEMBLY CAN CONFER JURISDICTION ON THE COURT OF APPEAL ON ANY MATTER
A State Assembly lacks legislative competence or vires to confer appellate jurisdiction on the Court of Appeal on any matter including election matters. That is within the province and prerogative of the National Assembly which has the Legislative powers and competence to do so. PER ABDULLAHI, J.C.A.
ELECTION MATTERS: WHETHER THE COURT OF APPEAL HAS JURISDICTION IN PRE AND POST-ELECTION MATTERS ARISING FROM THE CONDUCT OF LOCAL GOVERNMENT COUNCILS ELECTIONS IN ANY STATE IN NIGERIA
In my humble opinion, Court of Appeal has no jurisdiction in Pre and Post-Election Matters arising from the conduct of Local Government Councils Elections in any State in Nigeria. This is in line with the Apex Court’s decision in ABDULLAHI G. USMAN V APC & ORS (supra) and the decision of the Court of Appeal, Abuja Division in SALISU UBANDOMA & ANOR V SAFIYANU YAHAYA & ORS (CA/AK/260/2020). PER ABDULLAHI, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
OGUNMODEDE NURUDEEN APPELANT(S)
And
- MR. OMOSULU OJO OLUWASEYI 2. ALL PROGRESSIVE CONGRESS APC 3. ENGR. ADE ADETIMEHIN (ONDO STATE CHAIRMAN APC) 4. MR. SHINA ALAYE (ONDO STATE SECRETARY APC) FOR THEMSELVES AND OTHER MEMBERS OF THE ONDO STATE WORKING COMMITTEE OF THE ALL PROGRESSIVE CONGRESS 5. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (ODIEC) RESPONDENT(S)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): On the 17th of September, 2020 the parties to this Appeal were ordered by the Court to file and exchange Written Addresses on whether or not the Court of Appeal has the jurisdiction to hear the Appeal as presently constituted. The Appeal was adjourned to 28th day of September, 2020 for adoption of Written Addresses.
In compliance to the said order, the parties filed and exchanged their Written Addresses which were identified and adopted by learned counsel on their behalves. On the 28th September, 2020 the Written Address of the Appellant settled by Prince T. A. Adebobola Esq., and filed on the 25th September, 2020 was identified and adopted by him. The 1st Respondent’s Written Address settled by O. E. Oyesusi Esq., and filed on 25th September, 2020 was identified and adopted by him. The 2nd, 3rd and 4th Respondents’ Written Address settled by B. A. Aderosin Esq., filed on the same 25th September, 2020 also identified and adopted by him. The 5th Respondent’s Written Address settled by D. F. A. Omoloye (CLO) MOJ Ondo State filed on the 28th September, 2020 was equally identified and adopted by him.
1
In the adopted Written Address of the Appellant, the learned counsel for the Appellant stated that this appeal flows from the error of Ondo State High Court sitting in Ikare Akoko which confers jurisdiction on Court of Appeal being a Pre – Election matter. He said that Ondo State Independent Electoral Commission is only guided by guidelines and usually have a recourse to Electoral Act, 2010. That Niger State has its law regulating the conduct of Local Government Elections unlike Ondo State which does not have.
He contended that there are differences between Pre – Election matters and Election Petition. That in the instant Appeal on Pre-Election Matters, Court of Appeal has jurisdiction. Referred to BOKO V. NUNGWA (2019) NWLR (PT 1654) 395.
Counsel referred to Sections 239, 240, 241 and 246 of the 1999 Constitution of the Federal Republic of Nigeria and said that no where is it specifically and expressly made that Appeals should not lie from Local Government Pre – Election Matter from the High Court of a State to the Court of Appeal.
2
That Section 286(12) of the 1999 Constitution of the Federal Republic of Nigeria does not specify the type of election but made generally to Pre – Election Matters. That the intention of the drafters of the law is to incorporate ALL Pre – Election Matters. He cited the Provision of Section 285(9) of the Fourth (4) Alteration of 1999 Constitution of the Federal Republic of Nigeria on filing of Pre – Election Matters.
He submitted that the Court of Appeal derived its Appellate jurisdiction under Sections 240, 241, 242 and 243 of 1999 Constitution of the Federal Republic of Nigeria (as amended). That the Court is not barred from entertaining Appeals arising from Pre – Election Matters concerning Local Government in Nigeria.
Counsel contended that on issue of concurrent list, where there is no State law, laws enacted as Federal laws shall operate based on the doctrine of covering the field. That since the Ondo State Independent Electoral Commission does not provide for issue of Pre – Election Matters, therefore Section 265 of the Constitution shall apply in the State in line with the doctrine of covering the field. He referred to INEC V. MUSA (2003) LPELR – 1515 (SC) and A. G. FEDERATION V. A. G. LAGOS STATE (2013) LPELR – 20974 (SC).
3
Learned counsel referred to the recent decisions of the Court of Appeal, Abuja Division in Appeals No. CA/A/260/2020 and CA/A/261/2020 – SALISU UBANDOMA & ANR V SAFIYANU YAHAYA & 2 ORS and MOHAMMED ALKALI V ALHASSAN ALIYU & 2 ORS respectively. He argued that the two decisions concerned Election Petition emanating from the Local Government and not Pre – Election Matters.
He urged us to avert our minds to the intention of the drafters of Sections 3(6), 7, 243 and 246 of the 1999 Constitution and to construe that the Court of Appeal can assume jurisdiction in this present matter. He further urged us to entertain this Appeal as there is no law that removes the Appellate jurisdiction of the Court of Appeal from entertaining Pre – Election Matters from the Local Government in Nigeria.
In the adopted Written Address of the 1st Respondent an issue for determination was formulated thus
“Whether the Court of Appeal has the jurisdiction to hear the substantive appeal being a Pre – Election Matter in a Councillorship Election.”
4
The learned counsel to the 1st Respondent referred to the case of MADUKOLU V NKEMDILIM (1962) 2 NSCC 374 @ 379-380 on assumption of jurisdiction by any Court of Law. He also referred to AJAYI V ADEBIYI (2012) ALL FWLR (PT 634) 1 SC and TUKUR V GOVT. OF GONGOLA STATE (1989) LPELR-196/87.
He said that the authority of a Court to assume jurisdiction over a case is generally determined by the Constitution or Statute which creates the particular Court and vests it with specified jurisdiction. Relied on ARJAY LTD V A.M.S. LTD (2003) 7 NWLR (PT 820) 879 and SHELL PETROLEUM DEV. COM. NIG. LTD V ISAIAH (2001) LPELR (SC) 75/1997.
He contended that reading Sections 246 with 285 of the 1999 Constitution of the Federal Republic of Nigeria together will show that apart from various and/or specific jurisdictions conferred on the Court of Appeal in relation to Election Matters, no such other power is exerciseable by the Court of Appeal (particularly in relation to Local Government Elections in Nigeria).
Counsel submitted that the Constitution and Electoral Act are the statutes that provide how, when and where to seek redress in Pre – Election Matters generally
5
and nowhere in these statute books was it stated that Appeals from the decision of the High Court of a state would lie to the Court to Appeal in Councillorship and Chairmanship (Local Government) Elections. This means that the Court of Appeal is excluded from exercising powers on election related matters emanating from the conducts or otherwise of election into Councillorship and Chairmanship (Local Government) positions.
He further submitted that in the absence of any legislation directly conferring jurisdiction on the Court of Appeal to hear and determine Appeals arising from the decisions of the Court of any State in Pre – Election Matters in a Councillorship Election, no such right of Appeal to the Court of Appeal would exist, particularly with respect to matters not specifically mentioned under Section 246(1) of the 1999 Constitution of the Federal Republic of Nigeria. Referred to the recent decisions of the Supreme Court in ABDULLAHI G. USMAN V APC & ORS (SC 209/2020) DELIVERED ON 12/5/2020.
Counsel opined that the decision of Ondo State High Court is final in a Councillorship Pre – Election or Post – Election Matter in
6
Ondo State and this Appeal therefore becomes a mere academic exercise. Relied on UGWUH V ATTORNEY GENERAL OF EAST CENTRAL STATE (1975) 6 SC. 13 @ 16.
He said that in the instant case no statute has conferred on the Court of Appeal any jurisdiction to hear and determine Pre or Post-Election Matters arising from the conduct of Councillorship Elections in Nigeria. Cited and relied on the case of CHIEF (MRS.) OLUFUNKE VICTORIA EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 10 NWLR (PT 1012) 544.
Counsel contended that once the word ‘Election’ is mentioned, it encompasses all the processes that lead to the choice of a candidate by popular votes. Relied on PROGRESSIVE PEOPLE’S ALLIANCE V SARAKI (2007) 17 NWLR (PT 1064) 456.
He submitted that the substantive Appeal being a Pre-Election Matter, cannot exclude/isolate itself from the definition of the word ‘Election’ as defined by our Courts. That as long as it relates to Councillorship or Chairmanship positions (in the Local Government Council), this Court becomes powerless to adjudicate thereon on Appeal and urged us to so hold.
7
Learned counsel urged us to resolve the sole issue in favour of the 1st Respondent against the Appellant. He further urged us to hold that Court of Appeal has no jurisdiction in Pre and Post – Election Matters arising from the conduct of Local Government Council Elections in any State in Nigeria in line with the Supreme Court decision in ABDULLAHI G. USMAN V APC & ORS (supra) and SALISU UBANDOMA & ANR V SAFIYANU YAHAYA & ORS (CA/A/260/2020) and to strike out this Appeal in its entirety.
In the adopted Written Address of the 2nd, 3rd and 4th Respondents, their learned counsel referred to Appeal No. CA/AK/42/2020 which was dismissed by this Court and proceeded to address the Court by the same mode of argument preferred in the Appellant’s Written Address as encapsulated in this Ruling.
He also opined that combined reading of Sections 240 and 243 of the 1999 Constitution of the Federal Republic of Nigeria, denote that the Appellate jurisdiction of Court of Appeal is extended to Pre – Election Matter emanating from Local Government Areas in Nigeria. He urged us to hear and determine this Appeal.
8
In the Written Address of the 5th Respondent a sole issue for determination was also formulated, to wit: “whether the Court of Appeal has the vires to hear Appeals arising from the Elections conducted for Local Government Councils in the State.”
The learned counsel to the 5th Respondent cited Sections 246 and 285(1) of the 1999 Constitution of the Federal Republic of Nigeria and argued that pursuant to the above cited provisions it is manifestly clear that Local Government Election is not inclusive of the Elections upon which the Appellate jurisdiction applies.
He submitted that it is the general rule of the law that the express mention of a thing is the exclusion of all things not mentioned, hence the maxim “expression unis est exclusion alterius”. Referred to the cases of SALISU UBANDOMA & ORS V SAFIYANU & ORS – CA/A/260/2020 (Unreported); OGBUANYIYA & 5 ORS V OKUDO & 2 ORS (1979) 6.9 SC 32, (1979) ANLR 105 and MILITARY GOVERNOR OF ONDO STATE V ADEWUNMI (1988) 3 NWLR (PT 82) 280.
He further submitted that jurisdiction to hear or entertain an Appeal on a matter must be derived or conferred by Statute or Constitution.
9
It cannot be presumed and no Court has the inherent power to hear Appeal from the decision of any Court. Referred to ALAFIN OF OYO V A. G. OYO STATE (1984) NSCC 397 @ 420; (1984) 1 SCNLR 535.
Counsel stated that the full Court of the Supreme Court put the importance of the issue of jurisdiction beyond peradventure in the case of A.G. OF LAGOS STATE V HON. JUSTICE DOSUNMU (1989) 3 NWLR (PT. 111) 552 @ 566 – 567 PARAS. H – B. Referred also to the cases of CHIEF BETHRAND E. NNONYE V O. N. ANYICHIE & 2 ORS (2005) NWLR (PT 910) 623 @ 647 and OBIUWEUBI V C. B. N (2011) 7 NWLR (PT. 1247) 465 @ 494 PARAS. C – D.
He submitted that the community reading of the Sections of the Constitution and above referred judicial authorities pointed irresistibly to the fact that the Court has no jurisdiction in the instant Appeal. He therefore urged us to decline jurisdiction.
RESOLUTION
This is an Appeal against the decision of High Court of Ondo State contained in the judgment delivered in Suit No. HIK/4/2020 by Hon. Justice S. Olorundahunsi on the 3rd August, 2020 wherein all the reliefs sought by the 1st Respondent as Claimant to the effect that his
10
name be restored as the Councillorship Candidate of the 2nd Respondent for Ikaado Ward II of Akoko North East Local Government of Ondo State were granted.
On the 17th day of September, 2020 parties were before the Court for the adoption of their respective Briefs, the Court ‘suo motu’ raised the issue of jurisdiction and ordered the parties to file and exchange Written Addresses on ‘whether or not the Court of Appeal has the jurisdiction to hear the Appeal as presently constituted’.
It is trite law that wherever the issue of jurisdiction is raised, it has to be dispensed with by the Court before doing any other thing on the substantive matter. See the case of MADUKOLU V NKEMDILIM (supra) which is the ‘locus classicus’ on issue of jurisdiction. See also AJAYI V ADEBIYI (supra).
I have taken into consideration the entire arguments of the parties to this Appeal as canvassed in their respective Written Addresses already stated the narrative in this Ruling. No doubt from the Addresses presented by the parties, they are ‘ad-idem’ that the authority of a Court to assume jurisdiction over a case is
11
generally determined by the Constitution or Statute which creates the particular Court and vests it with specified jurisdictions. In ARJAY LTD V AMS LTD (supra) the Supreme Court held thus:
“Jurisdiction of a Court is a matter of Law and it is vested on a Court by the Constitution and the Statute establishing the Court.”
Also in SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD V ISAIAH (supra) jurisdiction was described as:
“The fulcrum, center pin, or the main pillar upon which the validity of any Court decision stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.”
In the case of the Court of Appeal, jurisdiction is conferred on it by the 1999 Constitution of the Federal Republic of Nigeria (as amended) both original and appellate. See Sections 239, 240, 241, 242, 243, 245 and 246 of the 1999 Constitution of the Federal Republic of Nigeria.
A combined reading of Sections 246 and 285 of the Constitution, 1999 will show that apart from the various and/or specific jurisdictions conferred on the Court of Appeal in relation to election matters,
12
no such other power is exercisable by the Court of Appeal (particular in relation to Local Government Elections in Nigeria). The Constitution and Electoral Act are the Statutes that provide how, when and where to seek redress in Pre – Election Matters generally and nowhere in these Statute books was it stated that decision of the High Court of a State would lie to the Court of Appeal in Local Government Councillorship and Chairmanship Elections.
In the absence of any legislation directly conferring jurisdiction on the Court of Appeal to hear and determine appeals arising from the decision of the High Court of any State in Pre or Post – Election Matters in a Councillorship Election, no such right of Appeal to the Court of Appeal would exist. See ABDULLAHI G. USMAN V APC & ORS (SC. 290/2020) DELIVERED ON 12/05/2020. Also CHIEF (MRS.) OLUFUNKE VICTORIA EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (supra).
The contention of the Appellant’s counsel that the intention of drafters of the law is to incorporate ALL Pre – Election Matters and there is no express provision ousting
13
Pre-Election Matter concerning the Local Government in Nigeria, is misconceived having regards to the combined effect of Sections 246 and 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and also Section 87 of the Electoral Act, 2010 (as amended) on Nomination of Candidates by Political Parties. Therein No mention of Local Government Areas of the States in Nigeria.
Also the learned counsel for the Appellant and the 2nd – 4th Respondents’ counsel’s contention that since the Ondo State Independent Electoral Commission does not provide for issues of Pre- Election Matters, therefore Section 285 of the 1999 Constitution of the Federal Republic of Nigeria shall apply in the State in line with doctrine of covering the field is of No moment. Reference to the cases of INEC V MUSA (supra) AND A. G. FEDERATION V A. G. LAGOS STATE (supra) are not applicable in the instant appeal as constituted. This I found and so hold.
It is the House of Assembly of a State and in this case Ondo State House of Assembly that has the Legislative Power Pursuant to Sections 4(6) & (7) and Section 7 of the 1999 Constitution (as amended) to provide
14
for Local Government Election Petition Tribunal and Appeal Tribunal or Court to hear and determine Pre and Post-Election Matters or issues or Litigations relating to Election(s) of Chairman or Councillors into Local Government Councils in the State. It is a matter exclusive to State Legislatures to legislate upon. I so hold.
A State Assembly lacks legislative competence or vires to confer appellate jurisdiction on the Court of Appeal on any matter including election matters. That is within the province and prerogative of the National Assembly which has the Legislative powers and competence to do so.
In my humble opinion, Court of Appeal has no jurisdiction in Pre and Post-Election Matters arising from the conduct of Local Government Councils Elections in any State in Nigeria. This is in line with the Apex Court’s decision in ABDULLAHI G. USMAN V APC & ORS (supra) and the decision of the Court of Appeal, Abuja Division in SALISU UBANDOMA & ANOR V SAFIYANU YAHAYA & ORS (CA/AK/260/2020).
In the light of the aforementioned, Court of Appeal is not vested with the required jurisdiction to entertain this appeal as constituted. The appeal is hereby dismissed for want of jurisdiction to hear and determine same.
15
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the lead Ruling, in this appeal, just delivered by my learned Brother, Ridwan M. Abdullahi, JCA.
For the detailed reasons advanced in the said lead Ruling hereby adopted by me, I agree with my learned Brother that this Court is not robed with jurisdiction to adjudicate upon matters arising from Local Government elections and indeed all election related matters.
I accordingly strike out the appeal for incompetence and make no order for costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the advantage of reading the draft of the ruling of my learned brother, Ridwan M Abdullahi, JCA delivered now. I agree with his Lordship that this Court has no jurisdiction in Pre-Election Matters arising from Local Government Elections. I also agree that the proper order to make in the circumstances is one of dismissal and not striking out of the appeal.
Appeal is dismissed.
16
Appearances:
Prince T. A. Adebobola Esq. For Appellant(s)
E. Oyesusi Esq. with him, O. Awolu Esq. for the 1st Respondent.
B. A. Aderosin Esq. for the 2nd – 4th Respondents.
D. F. A. Omoloye Esq. for the 5th Respondent.
For Respondent(s)
