OTUNBA JUSTUS OLUGBENGA DANIEL & ANOR v. SENATOR IBIKUNLE AMOSUN & ORS.
(2019)LCN/13899(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of April, 2009
CA/I/EPT/FHC/CS/84/08
RATIO
JURISDICTION: THE JURISDICTION OF STATE HIGH COURTS
Having reviewed Section 251(1)(r) which states the matters within the jurisdiction of the lower court and Section 285(2) and paragraph 2(3) of 6th Schedule to the Constitution which covers the exercise of the 3rd defendant’s administrative power, which the lower court cannot question, obviously the lower court lacked the jurisdiction or competence to have assumed jurisdiction in the plaintiffs’ substantive case in the Amended Originating Summons. Since the lower court lacked jurisdiction over the matter before it in agreement with the arguments of the learned senior counsel for the 1s defendant, it lacked the jurisdiction to consider the request for a referral and in making the referral to this court. In my view, the referral should not have been entertained by the lower court, and I so hold. See LAWRENCE V. A-G FEDERATION (2008) 6 NWLR (PART 1084) 453, CHIEF OLABISI ONABANJO V. CONCORD PRESS OF NIGERIA LTD. (1981) 2 NCLR PAGE 393.
PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: A COURT HAS THE DUTY TO DETERMINE ISSUES OF JURISDICTION INSTEAD OF GIVING THE DUTY TO THE APPELLATE COURT
The lower court was under the obligation to take a definite stand on the issue of jurisdiction which was timeously raised in the objection, rather than wash its hands off a definite stand and pushing it to this court to determine in the form of reference. See OGUNMOKUN V. MILITARY ADMINISTRATOR, OSUN STATE (1999) 3 NWLR (PART 594) 261. It has been settled by the supreme court that electoral matters are to be settled by election tribunals. As a follow up I add, by election tribunals property set up by the appropriate body, the 3rd defendant without challenge by any court. The Federal High court has not been empowered to look into it in form of review, interpretation or otherwise. On the effect of lack of jurisdiction in U.A.C. V., MACFOY (1961) 3 ALL E.R.P.1169 AT 1172, Lord Denning had this to say:-
“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad… And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. In the present case’ since the special feature of the exercise of the 3rd defendants powers stripped the lower court of jurisdiction to entertain the matter, it renders null and void any decision of the lower court arrived at, that is entertaining the amended originating summons and the order of referral made to this Court. See also SKENCONSULT (NIG.) LTD. & ANOTHER V. GODWIN SEKONDY UKEY (1981) 1 S.C. PAGE 6 and MADUKOLU V. NKEMDILIM (supra). PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: WHEN A COURT IS COMPETENT TO HANDLE A MATTER BEFORE IT
In my considered view the action before the lower court is not competent. In MADUKOLU v. NKEMDILIM (supra) it was decided that: A court is competent when:-
“(1) it is properly constituted as regards numbers and qualification of the members 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. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication'”
(underlining mine for emphasis) PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. OTUNBA JUSTUS OLUGBENGA DANIEL
2. PEOPLE’S DEMOCMTIC PARTY Appellant(s)
AND
1. SENATOR IBIKUNLE AMOSUN
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE PRESIDENT, COURT OF APEPAL Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling): The matter came to this Court by way of a Constitutional reference pursuant to the provisions of Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999.
On the 14th day of April, 2007, the Independent National Electoral Commission (INEC), the 2nd defendant conducted the Governorship Elections in various states of the Federation including Ogun State where the plaintiff, Otunba Justus Olugbenga Daniel and the 1st defendant Senator Ibikunle Amosun contested the said Governorship Election on the platforms of the Peoples Democratic Party, PDP and the All Nigerian Peoples Party, ANPP respectively.
After the election, the 2nd defendant declared the 1st plaintiff of the 2nd plaintiff political party the winner and subsequently issued a certificate of return to the 1st plaintiff. The first defendant was aggrieved by the declaration of the 1st plaintiff as the winner of the election by the second defendant. The 1st defendant then filed a petition at the Ogun State Governorship and Legislative Houses Election Petition Tribunal in Petition No. EPT/OG/Gov/2/2007, challenging the result of the election and the declaration of the 1st plaintiff as the winner.
On 19th October, 2008, the Ogun State Governorship and Legislative Houses Election Petition Tribunal, (The Tribunal) dismissed the 1st defendant’s petition on the ground that the 1st defendant lacked the ‘locus standi’ to file and sustain the petition.
The 1st defendant being dissatisfied with the decision of the Tribunal, appealed to the Court of Appeal. On 13th March 2008, the Court of Appeal allowed the 1st Defendant’s appeal and made the following orders:
“(a) That the substantive appeal be and is hereby allowed;
(a) That an order striking out the petition is hereby set aside;
(b) That the petition is hereby remitted to the Ogun State Legislative House and Governorship Election Tribunal for hearing and determination on the merit.”
After the delivery of the judgment, the 1st Defendant wrote a letter to the 3r defendant (The president, Court of appeal) dated 11th April 2008, Exhibit “OGD 4” in which various allegations were made, on the basis of the complaints, requested the 3rd Defendant to set up another panel of the Tribunal to hear his petition as he had lost confidence in the Tribunal to do justice to his case, in the 3r Defendant’s capacity as the appointing authority to constitute a fresh panel to hear his petition. Thereafter, the 3rd Defendant wrote a letter dated 18th April, 2008 (Exhibit “OGD5”) and agreed to constitute another panel once the incumbent panel wound up. The said letter is said to have been made available to the Tribunal in the open court on 24th April, 2008. Learned counsel on both sides addressed to the Tribunal concerning the reply from the 3rd defendant. The Tribunal then ruled as follows:
“In view of the contents of the letter from the President of the Court of Appeal addressed to the petitioner and copied to us for our attention, we are of the view that the letter is self explanatory and in the circumstances we do not intend to take any further steps in the case. Any other proceedings in this petition have to await the directives of the President of the Court of Appeal.”
It was further held thus:
“We therefore adjourn the matter sine die pending the said directives”‘
The 1st Plaintiff was aggrieved by the correspondences between the 1st and 3rd Defendants and the 3rd Defendant’s decision to set up another panel of the Tribunal, because he was not part of the correspondences, plaintiffs said they were entitled to react to the allegations in the 11/4/08 and the reply of 18/4/08. He said it would have had the decision of the 3rd Defendant as to whether he should set up the panel of the Tribunal or not.
In a letter dated 22nd April 2008 the 1st Defendant responded to the Defendant’s letter of 18th April 2009 where he accepted the option given to him by the 3rd Defendant of waiting till the existing Tribunal concludes its duty in Ogun State for a newly constituted Tribunal to hear the petition. A copy of the letter is said to have been given to the Plaintiff, Prof. Taiwo Osipitan (SAN) by the 1st Defendant’s counsel Wole Esq. at the Tribunal on 24th April 2008. It is against these found facts that the plaintiffs filed the instant suit in the lower court was instituted by way of Originating Summons on 29th April 2008, amended. The Amended Originating Summons was dated 21st May, 2008 in the Amended originating summons the following questions were or determination by the lower court:
“1. whether having regard to the provisions of Sections 246(3) and 287 (2) of the Constitution of the Federal ‘Republic of Nigeria 1999 the 1st Defendant and the 3rd Defendant in the exercise of his power under Section 285(2) and paragraph 2(3) of the 6th schedule of the Constitution ire not bound to comply with and enforce the order of the court of Appeal as embodied in its judgment in appeal No:CA/I/EPT/GOV/10/07 between SENATOR IBIKUNLE AMOSUN V. INDEPENDENT NATIONAL ELECTORAL COMMISS
