SIR JOHN OCHALA & ORS v. HON. GODWIN ETIM JOHN & ORS
(2019)LCN/12901(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2019
CA/C/62/2019
RATIO
COURT AND PROCEDURE: GROUND FOR APPEAL
“This point was put beyond doubt by the Court of Appeal in MINJIBIR & ANOR. v. MINJIBIR & ORS. (2008) LPELR 4486 (CA) ?that – It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is more so, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT AND PROCEDURE: TEST TO DETERMINING THE DECISION OF A COURT
“The test of determining whether a decision is final or interlocutory is now very well settled. In ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated: Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION
“A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. SeeIBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
NON-JOINDERS
“The effect of orders(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted… that where a person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the Appellants right to fair hearing. See also OVUNWO vs. WOKO (2011) 7 SCM 207 at 231-232 and NURTW vs. RTEAN (2012) 3 SCM 171 at 178-179 and ALIOKE vs. OYE (2018) LPELR (45153) 1 at 18.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. SIR JOHN OCHALA
2. BISHOP VICTOR EBONG
3. BASSEY ITA
4. SEN. JOHN OWAN ENOH
5. SEN. VICTOR NDOMA-EGBA
(For himself and on behalf of all other National Assembly Candidates)
6. DR. (MRS.) BASSEY ETIM NAKANDA
(For herself and on behalf of other CRS House of Assembly Candidates) Appellant(s)
AND
1. HON. GODWIN ETIM JOHN
2. CHIEF FRANCIS EKPENYONG
(For themselves and on behalf of the State Executive Committee of the All Progressives Congress C.R.S.)
3. ALL PROGRESSIVES CONGRESS Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
PROLEGOMENON This appeal is against the decision of the Federal High Court sitting at Calabar in SUIT NO. FHC/CA/CS/73/2018: HON GODWIN ETIM JOHN & ANOR. (for themselves and on behalf of the State Executive Committee of the All Progressives Congress C.R.S.) vs. ALL PROGRESSIVES CONGRESS & ORS. The parties at the lower Court were the 1st-3rd Appellants herein who were the 2nd, 3rd and 4th Defendants at the lower Court, the 3rd Respondent herein, which was the 1st Defendant at the lower Court and the 1st & 2nd Respondents herein who were the Plaintiffs at the lower Court. The 4th-6th Appellants were not parties in the action at the lower Court, but upon their application they were granted leave by this Court, on 20th February 2019, to appeal against the decision of the lower Court as persons interested.
The action at the lower Court was commenced by Originating Summons for the determination of the following questions:
1. Whether upon the proper construction and interpretation of the provisions of Sections 1,24(a), 6,257, 287, and 295 of the 1999 Constitution as amended, and articles 21 (a) (iv) (vi) & (ix) of the 1st defendant?s Constitution, the acts of the 2nd – 4th defendants and their associates of parading, holding out themselves and posing as the elected state executives of 1st defendant in Cross River State; the forceful entry upon; take over, occupation and retention of the state secretariat Annex of 1st defendant in Cross River State situate at No. 10 Okoi Arikpo Estate, barracks Road Calabar, in flagrant disregard and disobedience of the orders of Court, is not arbitrary unconstitutional and void
2. If the answer to the aforesaid issue is in the negative, whether this honourable Court has no disciplinary powers to obviate or undo anything done by 2nd -4th defendants and their Associates in breach of the aforesaid orders of Court, and accordingly grant all the prayers sought herein.? (See Pages 11-12 of the Volume I of the Records)
It is apparent from the questions presented for determination, that the disceptation related to who, as between the 1st-3rd Appellants and the 1st & 2nd Respondents, were the elected State Executive of the 3rd Respondent in Cross River State and whether the action of the 1st-3rd Appellants in forcibly taking over the Secretariat Annex of the 3rd Respondent in Cross River State was not in disobedience of order of Court and whether the said acts of disobedience of the order of Court should not be reversed.
The reliefs claimed by the 1st & 2nd Respondents are as follows:
1. A DECLARATION that under the applicable provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the rights of parties and/or citizen can be circumscribed by an injunctive order and every subsisting decision of a Court must be obeyed.
2. A DECLARATION that by the Applicable provisions of the 1999 Constitution the decisions of a High Court, including the High Court of the Federal Capital Territory, Abuja and all other Courts established by the Constitution shall be enforced in any part of the federation by all authorities and person and every citizen of Nigeria in under an obligation to obey every subsisting decision of a High Court, until set aside.
3. A DECLARATION that by the Applicable provisions of the 1999 Constitution, the order of his lordship Hon. Justice O. A. Musa Judge of the High Court of the Federal Capital Territory Abuja, delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/CV/O6/2018 and motion No. FCT/HC/BW/M/274/2018, by which the defendants were commanded to recognize and deal with the claimants as the lawful State Executives of 1st defendant in Cross River State, remains the subsisting constitutional order regulating the affairs of the defendants in that area in Cross River State.
4. A DECLARATION that the failure of the defendants to obey the decision of his Lordship, Hon. Justice O. A. Musa, Judge of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September, 2018 in suit NO. FCT/HC/BW/CV/06/2018; motion No. FCT/HC/BW/M/274/2018, nullifying and setting aside the ward, Local Government, and state congresses conducted by 1st defendant on 21st and 22nd days of August 2018, which purportedly produced the 2nd – 4th defendants and Associates as State Executives of the 1st defendant in Cross River State, is an act of impunity and a breach of the 1999 Constitution.
5. A DECLARATION that by a combined interpretation of the applicable provisions of the 1999 Constitution, the Constitution of the 1st defendant and the order of his Lordship Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/M274/2018, it is the claimants, not the 2nd-4th defendants and Associates, who are entitled to hold office as the lawful state executives of the 1st defendant in Cross River State and to take charge, occupy and use the secretariat of the 1st defendant Located at No. 10 Okoi Arikpo Estate Barracks Road Calabar, Cross River State.
6. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, Article 21 A of the 1st defendant?s Constitution, and the order of his lordship, Hon. Justice O. A. Musa Judge, of the High Court of the Federal Capital Territory Abuja delivered on the 20th day of September 2018 in suit No. FCT/HC/BW/CV/106/2018, motion No. FCT/HC/BW/M274/2018, the forceful entry upon, taking over, occupation and retention of the state secretariat annex of the claimants at No. 10 Okoi Arikpo Estate, Barracks Road Calabar since 21st August 2018, without right, constitute not only the offence of fractionalization made punishable under the 1st defendant?s extant Constitution, but also a frontal violation of the 1999 Constitution Act, and therefore illegal and void.
7. A DECLARATION that by the Applicable provisions of the 1999 Constitution and Article 21 (A) of the 1st defendant Constitution, the 2nd – 3rd defendants? disobedience of the order of his Lordship Hon. Justice O.A. Musa, Judge, of the High Court of the federal Capital territory Abuja delivered on the 20th day of September, 2018 in suit No. FCT/HE/BW/M/274/2018, by way of the advertisement placed by them at page 22 of the Nigeria Chronicle edition of Monday October 1st, 2018 wherein in their independence day massage of felicitation to the President and Commander-in-Chief of the Armed forces of the Federal Republic of Nigeria, they had falsely presented, and held out themselves to be chairman and secretary respectively of the 1st defendant in Cross River State, not only violates the constitutional order of the 1st defendant, but is also a flagrant breach of the provisions of the 1999 Constitution and therefore illegal.
8. A DECLARATION that by the combined effect of the applicable provisions of the 1999 Constitution, and all other applicable judicial precedent in Nigeria, all the acts of the defendants complained herein which are in flagrant disobedience to the order of his Lordship, Hon. Justice O. A. Musa, Judge, of the High Court of the Federal Capital Territory Abuja, delivered on the 20th day of September, 2018 in suit No. FCT/HC/BW/CV/106; motion No. FCT/HC/BW/CV/106; Motion No. FCT/HC/BW/M/274/2018, constitute a flagrant violation of the Constitution and therefore illegal and void.
9. AN ORDER of injunction, restraining the 2nd – 4th defendants, by themselves, Associates, servants, agents, privies or consorts forthwith, from further parading or holding out themselves as the lawful State executives of the 1st defendant in Cross River State pending the hearing and determination of suit No. FCT/HC/BW/CV/106/2018 at the High Court of the Federal Capital Territory, Abuja.
10. AN ORDER OF INJUNCTION ordering, commanding or directing 2nd -4th defendants by themselves, their Associates, servants, agents? privies or consorts to immediately, vacate the State secretariat Annex of the 1st defendant in Cross River State Located at No. 10 Okoi Arikpo Estate Barracks Road, Calabar.
11. AN ORDER OF INJUNCTION restraining 2nd-4th defendants, by themselves, their Associates, servants, agents, privies, or consorts, from ever forcefully entering upon, taking over, occupying, or retaining the State Secretariat Annex of the 1st defendant, in Cross River State, or opening, maintaining or operating any parallel Secretariat or office with the insignia of the All Progressives Congress (APC) or in the name of the said party anywhere in Cross River State, pending the determination of suit No. FCT/HC/BW/CV/106/2018 before the High Court of the Federal Capital Territory, Abuja.
12. AN ORDER directing, commanding and compelling the 1st defendant to immediately invoke the provisions of Article 21 (a) (iv) (vi) & (ix) of its Constitution against the 2nd -4th defendants and their associates for operating an illegal parallel state executive structure of the 1st defendant in Cross River State, contrary to the aforesaid provisions of its Constitution, and in violation of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Once again, it is evident that the reliefs claimed are in respect of who the elected State Executive of the 3rd Respondent in Cross River State are, and whether the actions of the 1st-3rd Appellants, in holding themselves out as the State Executive and taking over the Secretariat Annex of the 3rd Respondent, is not in disobedience of the orders of the High Court of Federal Capital Territory, Abuja, and which actions, which are in violation of the subsisting order of Court, should be reversed. It is important to underscore that the disputation before the lower Court was in respect of the State Executive (political party officials) of the 3rd Respondent. It had absolutely nothing to do with the selection or nomination of a candidate of a political party for election. The case was not about the candidates who were to be sponsored by the 3rd Respondent for election. It was about the persons who were members of the State Executive of the 3rd Respondent in Cross River State. It is instructive in this regard that the 1st & 2nd Respondents maintain the action in a representative capacity for themselves and on behalf of the State Executive Committee of the All Progressive Congress, Cross River State.
The action at the lower Court was contested, with the 1st-3rd Appellants and the 3rd Respondent filing preliminary objections in which they challenged the competence of the action and the jurisdiction of the lower Court to entertain the same. The lower Court heard the preliminary objections alongside the substantive Originating Summons and in its judgment, it dismissed the preliminary objections and entered judgment on the merits of the Originating Summons in favour of the 1st & 2nd Respondents. All the reliefs claimed in the Originating Summons were granted and the lower Court then proceeded to make what it termed ?consequential orders? as follows:
It is also hereby consequentially ordered as follows:
1. The Defendants are to forthwith reverse all steps taken by them in flagrant disobedience of the orders of Court including but not limited to the submission of names of candidates for elective positions in the forthcoming general elections for membership the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
2. The Independent National Electoral Commission (INEC) be and is hereby ordered not to recognize or in any manner endorse any step whatsoever taken by the 2nd -4th Defendants purportedly as members of the State Executive Committee of the 1st Defendant in Cross River State including the submission of names of candidates for elective positions in the forthcoming general elections for membership the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
3. The candidates for elective positions in Cross River State in the forthcoming general elections for membership, the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State whose names are submitted by the Defendants to INEC be and are hereby restrained from howsoever or in any manner whatsoever campaigning or doing anything in furtherance of their candidacy in the 2019 General Election.
4. That the order of Justice O. A. Musa of FCT High Court on 20/9/18 which states that any nomination made in disregard of this order shall be void is hereby enforced.
5. It is hereby ordered that all the nominations made and submitted to Independent National Electoral Commission (INEC), by the 1st Defendant is void and the same Independent National Electoral Commission (INEC) is hereby ordered to remove the names of the Candidates of the 2nd – 4th Defendants from the list of Candidates to contest for the Election in the forth-coming General Elections for membership of the Cross River State House of Assembly, House of Representatives, Senate and the Governorship of Cross River State of the 2019 General Elections.
6. It is hereby ordered that the National Working Committee of the 1st Defendant and Independent National Electoral Committee (INEC) to receive the list of all Candidates emerged from the Godwin Etim John led State Executive for the 2019 General Elections.
By these consequential orders, the lower Court transmogrified the action to one dealing with the nominated candidates of the 3rd Respondent for election. The judgment of the lower Court which was delivered on 11th February, 2019 is at pages 767-828 of Volume II of the Records. The 1st-3rd Appellants were dissatisfied with the judgment of the lower Court and appealed against the same.
The 3rd Respondent herein was equally dissatisfied with the decision and appealed against the same. Its appeal is APPEAL NO. CA/C/70/2019: ALL PROGRESSIVES CONGRESS vs. HON. GODWIN ETIM JOHN & ORS. As earlier stated; the 4th-6th Appellants who were not parties at the lower Court were granted leave to appeal against the decision of the lower Court and they filed their Notice of Appeal on 20th February, 2019. The extant Notice of Appeal on which the 1st-3rd Appellants argued their appeal is the Amended Notice of Appeal filed on 21st February, 2019, but deemed as properly filed on 27th February, 2019.
The Records of Appeal were compiled and transmitted and briefs were filed. At the hearing of the appeal, the attention of the 1st & 2nd Respondents was drawn to the two Respondents briefs filed by the them on 1st March 2019, whereupon the learned counsel for the 1st & 2nd Respondents elected to use the brief titled Respondents Joint Brief of Argument? which he amended in open Court by deleting Joint therefrom and adding 1st & 2nd thereto, such that it now read 1st & 2nd Respondents Brief of Argument.” The other brief originally titled 1st and 2nd Respondents Brief of Argument was accordingly withdrawn and struck out. The extant briefs on which the appeal was argued are:
1. 1st-3rd Appellants Brief of Argument filed on 21st February, 2019 but deemed as properly filed on 27th February, 2019.
2. 4th, 5th & 6th Appellants Brief of Argument filed on 25th February, 2019.
3. 1st & 2nd Respondents Brief of Argument [as amended] filed on 1st March 2019.
The 3rd Respondent did not file any processes in respect of the appeal. Let me hasten to state that the 1st-2nd Respondents Brief, as stated in its introduction, is ?in response to the appellants? brief of argument filed on 21/2/2019 pursuant to amended Notice of Grounds of Appeal filed on 21/2/2019?. So, the 1st & 2nd Respondents Brief is in response to the 1st-3rd Appellants Brief. The 1st & 2nd Respondents did not file any brief in respect of the appeal of the 4th, 5th & 6th Appellants. The concomitance is that the 1st & 2nd Respondents have not contested the appeal of the 4th, 5th & 6th Appellants.
However, this fact does not automatically translate to the success of their appeal. The success vel non of the appeal of the 4th, 5th & 6th Appellants still depends on the sustainability of the issues they canvassed and not the absence of the Respondents Brief. See JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT 470) 101, ECHERE vs. EZIRIKE (2006) ALL FWLR (PT. 323) 1597 at 1608 and POLYVENT NIGERIA LTD vs. AKINBOTE (2010) 8 NWLR (PT 1197) 506.
The 1st-3rd Appellants formulated four issues for determination in their appeal, namely:
i) Whether the trial Court can make a case for the parties different from the one the [sic] set before it at the trial, even at the preliminary stage of proceedings or threshold matter? Grounds 1 and 4.
ii) Whether by the extant provision of Section 285[9] of the 1999 Constitution [as amended] and admission of the parties that the suit is a pre-election matter, the lower Court has jurisdiction to entertain the suit: ground 3
iii) Whether the suit before the lower Court was not abuse of the judicial process?
iv) Whether the lower Court was right in finding for the Respondents without more? Grounds 2, 5 and 6.”
The 4th, 5th & 6th Appellants distilled three issues for determination in their appeal as follows:
1. Whether the learned trial Judge sitting in the High Court of the Federal Capital Territory, Abuja, in Suit No: FCT/HC/BW/106/2018 had jurisdiction (Territorial and otherwise) to make the Orders which were subsequently enforced in the Federal High Court (Grounds 1, 3, 4, 5, 6 and 7).
2. Whether the learned trial Judge was right when he made the Orders against the present Appellants who were not at any time parties on record. (Grounds 2 and 8).
3. Whether the learned trial Judge was right when he strayed into the domestic jurisdiction of a political party. (Grounds 9, 10 and 11).
The 1st & 2nd Respondents adopted the issues formulated by the 1st-3rd Appellants. They however incorporated a preliminary objection challenging the competence of the 1st-3rd Appellants appeal in their Respondents? Brief. The of the preliminary objection as set out on pages 4-5 of the 1st & 2nd Respondents Brief of Argument is as follows:
In the determination of the Appeal, respondents shall in limine raise a preliminary objection challenging the competency of this Honourable Court to entertain appellant?s appeal upon the following grounds:
TAKE NOTICE THAT Respondents shall at the hearing of this appeal challenge the competency of appellants? amended notice and grounds of appeal and the brief of argument filed on 21/2/2019 upon the following grounds:
(i.) Appellants grounds 1, 2, 3, 4 and 7 questioned the decision of the trial Court dismissing interlocutory decision [sic] of the appellants without seeking leave from the trial Court or this Honourable Court as required by S.22 of the Court Appeal Act.
(ii.) Appellants? ground 6 is a challenged award of damages in favour of respondents and this is not a decision of the trial Court and the ground is incompetent thereby or even if it exists, it is an exercise of discretion of the trial Court and leave is required to so do.
(iii.) Issues (i) (ii) and (iv) are incompetent as they are crafted from incompetent grounds of appeal.
(iv.) Issue iii is also incompetent as it is not formulated from any ground of appeal.
GROUNDS FOR THE OBJECTION
(v.) Appellants? grounds 1,2,3,4 and 7 questioned the decision of the trial Court dismissing interlocutory decision [sic] of the appellants without seeking leave from the trial Court or this Honourable Court as required by S.242 of the Constitution Federal Republic of Nigeria.
(vi.) Appellants? ground 6 is a challenged to award of damages in favour of respondents and this is not a decision of the trial Court. A competent ground of appeal must attack the judgment appealed against?
The ground is incompetent thereby or even if it exists, it is an exercise of discretion of the trial Court and leave is required to so do.
(vii.) Issues (i) (ii) and (iv) are incompetent as they are crafted from incompetent grounds of appeal.
(viii.) Issue iii is also incompetent as it is not formulated from any ground of appeal.
The 1st-3rd Appellants did not file any Reply Brief. The law is trite that where an appellant fails to file a reply brief when it is necessary to do so, he will be taken to have conceded the points arising from the brief of a respondent to his appeal.
See OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 226 at 309 and NWANKWO vs. YAR?ADUA (2010) 12 NWLR (PT 1209) 518. The situation is even more serious when a reply brief is not filed to a preliminary objection like in this case: AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129 and DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9. Therefore, the settled legal position is that the 1st-3rd Appellants having failed to file a Reply Brief are deemed to have conceded the points raised in the preliminary objection incorporated and argued in the 1st & 2nd Respondents Brief of Argument. See ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67 – 68. Now, even though the law presumes that the points on the issues so raised have been conceded, the wisdom of the law is that the preliminary objection is not thereby automatically upheld by the Court. The Court still has a bounden duty to consider the merits of the preliminary objection. See SHELL PETROLEUM DEVELOPMENT CO. vs. PESSU (2014) LPELR (23325) 1 at 32-33 and CANAAN ESTATES AND HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10. Therefore the convenient starting point would be to first consider the preliminary objection of the 1st & 2nd Respondents to see if it is sustainable in law.
At the hearing of appeal, E. E. Osim, Esq., learned Counsel for the 1st-3rd Appellants, Awa Kalu, Esq., SAN, learned Counsel for the 4th-6th Appellants and A. E. Okpa, Esq., learned Counsel for the 1st & 2nd Respondents urged the Court to uphold their respective submissions in the determination of the appeal. Mba E. Ukweni, Esq., SAN, of Counsel for the 3rd Respondent, informed the Court that the 3rd Respondent did not file any Respondents Brief.
THE PRELIMINARY OBJECTION
I have already set out the of the preliminary objection. The 1st & 2nd Respondents submit that the decision of the lower Court dismissing the 1st-3rd Appellants preliminary objection and holding that it has jurisdiction to entertain the suit is an interlocutory decision and not a final decision vide AKINSANYA vs. UBA LTD (1986) 4 NWLR (PT 35) 273 at 296. It was therefore opined that leave of Court under Section 242 (1) of the 1999 Constitution was necessary for the 1st-3rd Appellants to appeal against the decision. The case ofBOZSON vs. ALTRINCHAM UDC (1903) 1 KB 547 at 548 was referred to on the test to determine whether a decision is final or interlocutory.
The Court was urged to strike out grounds 1, 2, 3, 4 and 7 of the grounds of appeal for being incompetent.
The 1st & 2nd Respondents challenge to ground 6 of the grounds of appeal is that it does not arise from the decision of the lower Court. It was stated that no award of N500,000.00 as damages was made by the lower Court and that the said ground not being an attack on the judgment appealed against is incompetent. The case of FARDOUN vs. MBC INTL BANK LTD (2006) 7 WRN 104 at 132 was relied upon. It was stated that upon dismissing the preliminary objection of the 1st-3rd Appellants, the lower Court awarded costs of N250, 000.00 against them, and a further costs of N250,000.00 against them upon the success of the Originating Summons. The award of costs it was stated was an exercise of discretion and leave of Court is required to appeal against an exercise of discretion. The case of ABRU vs. ADI (2010) 42 WRN 106 at 112 and 116 and CBN vs. OKOJIE (2002) 22 WRN 51 at 54 were cited in support. The failure of the 1st-3rd Appellants to obtain leave as required by Section 242 (1) of the 1999 Constitution, it was asserted, rendered the appeal incompetent since the pre-condition for filing the notice of appeal was not complied with. The cases of ORGAN vs. N.L.N.G LTD (2013) 5-7 MJSC (PT I) 173 at 193-194, EFFIOK vs. GOVT. OF CRS (2010) 34 WRN 43 at 54, BASF NIG LTD vs. FAITH ENTP. LTD (2010) 24 WRN 26 at 51-52, GARUBA vs. OMOKHODION (2011) 33 WRN 1 at 37 and OBARO vs. OHIZE (2010) 13 WRN 9P. 168 [sic] were called in aid.
The 1st & 2nd Respondents conclusively submitted that the four issues for determination distilled by the 1st-3rd Appellants are incompetent having been formulated from incompetent grounds of appeal. The Court was urged to hold that there are no competent issues in the appeal and to strike out the issues and dismiss the appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
Let me iterate that the 1st-3rd Appellants did not file any Reply Brief in response to the issues raised in the preliminary objection. While it would have been desirable so to do, it is not a failing that means that the preliminary objection must perforce succeed.
The challenge of the 1st & 2nd Respondents to grounds 1, 2, 3, 4 and 7 of the Amended Notice of Appeal is on the basis that the said grounds relate to an interlocutory decision of the lower Court for which leave was required to appeal on the said grounds. As I had earlier stated, the 1st-3rd Appellants objected to the competence of the action at the lower Court and the jurisdiction of the lower Court to entertain the same. The lower Court incorporated the decision on the preliminary objection in the judgment in the matter whereby it upheld its jurisdiction and dismissed the preliminary objection.
By all odds, the chafed grounds of appeal are in respect of the decision of the lower Court on the issues raised in the preliminary objection filed by the 1st-3rd Appellants. The right of appeal conferred by Section 241 (1) of the 1999 Constitution provides for appeal as of right against final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance. The conspectus of the 1st & 2nd Respondents contention is that the decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection is an interlocutory decision for which leave is required before an appeal can be lodged against the decision.
It is no doubt the law that an appeal against an interlocutory decision, except where the grounds of appeal are grounds of law alone (See Section 241 (1) (b) of the 1999 Constitution), shall be with either the leave of the trial High Court or the Court of Appeal as stipulated in Section 242 (1) of the 1999 Constitution. Without a doubt, no leave was obtained before the 1st-3rd Appellants filed their appeal; so if the decision appealed against is an interlocutory decision and the grounds of appeal are not grounds of law alone, then the appeal will be incompetent. But is the decision appealed against an interlocutory decision as argued by the 1st & 2nd Respondents? This is what will now captivate our attention.
The question of when a decision is final or interlocutory is one which has agitated the Courts over the years, whether it is to be decided based on the nature of proceedings or application at which the decision is arrived at or based on the nature of the order made by the Court. Happily, the apex Court has laid the matter to rest and the applicable test in Nigeria is the nature of order test. In POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 6-9, I was privileged to state as follows in this regard:
Central to the resolution of this first ground of objection is whether the decision of the lower Court was final or interlocutory.
The decision of the lower Court was in respect of an application to dismiss the counterclaims of the Appellants. The lower Court allowed the application and dismissed the said counterclaims for being statute barred. It seems to me that the decision of the lower Court dismissing the counterclaims finally disposed of the rights of the parties in so far as the counterclaims were concerned and there remained nothing for the lower Court to determine in so far as it relates to the counterclaims. See AKINSANYA vs. UBA (supra), IGUNBOR vs. AFOLABI (supra) and ODUTOLA vs. ODERINDE (supra). Consequently, notwithstanding that the decision of the lower Court was in a Ruling delivered upon an interlocutory application the material consideration is not the function of the lower Court which delivered a Ruling, but the nature of the order made. Where, like in this case, the order is a dismissal, then it is a final decision.
The test of determining whether a decision is final or interlocutory is now very well settled. In ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:
Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order.
I iterate that the decision of the lower Court dismissing the counterclaim related to the subject matter of the dispute between the parties in the Appellants? counterclaims and it finally disposed of the rights of the parties in the said counterclaims. Accordingly, by the nature of order test applicable in Nigeria, it is a final decision: OMONUWA vs. OSHODIN (1985) 2 NWLR (PT 10) 924, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 22-23 (CA) and DANKWAMBO vs. ABUBAKAR (2015) LPELR (25716) 1 (SC).
In the circumstances, applying the nature of order test, the question is whether the decision of the lower Court on the question of jurisdiction has finally determined the rights of the parties on the issue. It is not whether the decision finally disposed of the rights of the parties in the substantive action: IGUNBOR vs. AFOLABI (2001) 11 NWLR (PT. 723) 148 and WESTERN STEEL WORKS LTD vs. IRON & STEEL WORKERS UNION (1986) 2 NWLR (PT. 30) 617.
Doubtless, the decision of the lower Court that it has jurisdiction concluded the rights of the parties on that issue. The parties can no longer approach the lower Court for anything else on that issue. The lower Court is functus officio on the issue and it is therefore a final decision.
In UGO vs. UGO (2017) LPELR (44809) 1 at 20-21, Onnoghen, CJN stated:
“Once a Court, in considering an interlocutory application challenging its jurisdiction, comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision of the issue of jurisdiction as that Court cannot lawfully revisit the issue again in the same proceeding. The Court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding. By coming to the conclusion that the Court had jurisdiction to entertain the petition for divorce, it had finally decided the rights of the parties as regards its jurisdiction.”
In his contribution at pages 24-26, His Lordship, Kekere-Ekun, JSC, stated:
“The issue in contention is whether the decision of the trial Court in the circumstances was a final or interlocutory decision. Addressing this vexed issue in Alor vs Ngene (2007) 17 NWLR (Pt. 1062) 163 at 175 F – H, (2007) 5 SCM 30, His Lordship Kalgo, JSC held: ?In plethora of decided cases, this Court decided that in this country, if the order, decision or judgment of a Court finally and completely determines the rights of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or Interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order. Therefore, the determining factor is not whether the Court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties [sic: Court]. His Lordship continued at page 177 D – E: A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of the order, functus officio and the only option to the parties is by way of appeal against that order.? Per Niki Tobi, JSC at 179 – 180 H-A (supra): A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means ?having performed his or her office?. In the con of the Judge, it means that the duty or function that the Judge was legally empowered and charged to perform, has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter.? See also: Ogolo vs Ogolo (2006) 5 NWLR (Pt. 972) 173 @ 187 C-H, (2006) 4 SCM, 147 per Onnoghen, JSC (as he then was). In the instant case, the trial Court having determined that it had the jurisdiction to entertain the petition had finally decided the rights of the parties as regards its jurisdiction and there could be no further reference to that Court in respect of that decision. Thus, even though the decision arose from an interlocutory application, the decision that the Court had jurisdiction to entertain the petition was a final one.”
I kowtow. The decision of the lower Court upholding its jurisdiction and dismissing the 1st – 3rd Appellants preliminary objection is a final decision. It is not interlocutory. Being final, the 1st-3rd Appellants could appeal as of right; they do not require the leave of Court underSection 242
(1) of the 1999 Constitution to appeal against the said decision. Accordingly, the said scarified grounds 1, 2, 3, 4 and 7 are competent.
The challenge to ground six (6) of the Amended Notice of Appeal is that it does not arise from the decision of the lower Court. It was further stated that if the ground be against the costs awarded by the lower Court, then it is an appeal against an exercise of discretion for which leave of Court is required to appeal against an exercise of discretion. It seems to me that the 1st & 2nd Respondents have not accurately restated the law as it relates to an appeal against costs awarded in an action. Ad rem in this regard is Section 241 (2) (c) of the 1999 Constitution. It provides:
(2) Nothing in this section shall confer any right of appeal –
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.?
By the constitutional stipulation, the issue is not whether award of costs is an exercise of discretion; it is rather that the Constitution has clearly made an appeal against costs only subject to leave of Court. There is no appeal as of right against an award of costs only. See THE CHARTERED INSTITUTE OF ARBITRATORS vs. THE CHARTERED INSTITUTE OF ARBITRATORS NIGERIA LTD/GTE (2018) LPELR (43641) 1 at 11-12, ASIMS NIG LTD vs. LOWER BENUE R.B.D.A. (2002) 8 NWLR (PT 769) 349, NICON vs. OLOWOFOYEKU (2006) 5 NWLR (PT 973) 244 and MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 8-9 and 74-76.
Howbeit, the pertinent question is whether the complaint in ground six (6) is against the costs awarded by the lower Court.
Ground six (6) of the Amended Notice of Appeal reads as follows:
GROUND SIX ERROR IN LAW
(6) The learned trial Court erred in law when he awarded damages of the sum of Five Hundred Thousand Naira to the Respondents which did not flow from the suit before the lower Court, if any, suffered by the Respondents.
PARTICULARS OF ERROR
i) There is no evidence before the lower Court that, that was the amount lost by the Respondents as a result of the face-off between the parties.
ii) The damages awarded was a gratuitous offer/gift to the Respondents by the lower Court.?
It is effulgent that the complaint in the above ground relates to damages of N500,000.00 said to have been awarded by the lower Court. I have gone through the sixty-one (61) page judgment of the lower Court with a fine toothcomb and I find no such award of damages. It appears to be a decision which the 1st-3rd Appellants created themselves. In MEKWUNYE vs. EMIRATES AIRLINES (supra) at 5-6, Eko, JSC stated:
It is trite that the Appellant is not permitted to create a bogus decision, by the distortion of the decision appealed, in order to found or plead his ground of appeal. This point was put beyond doubt by the Court of Appeal in MINJIBIR & ANOR. v. MINJIBIR & ORS. (2008) LPELR ? 4486 (CA) ?that –
It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is more so, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision.
What is more, an Appellant?s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another that would be a perfect scenario of talking at cross purposes. a ground of appeal raised against a phantom or non-existent decision is incompetent…an abuse of the Court?s process…
In fine fettle with a ground of appeal raised against a non-existent decision is the hornbook principle of law that grounds of appeal must arise from the decision appealed against. A ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA vs. ERISI (1988) 2 NWLR (PT. 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT. 342) 76 at 83 and AKPAN vs. BOB (2010) 7 NWLR (PT. 1223) 421 at 464. The purpose of the grounds of appeal is to isolate and accentuate for attack the basis of the reasoning of the decision challenged: SARAKI vs. KOTOYE (1992) LPELR (3016) 1 at 22. It is hornbook law that grounds of appeal are not formulated in nubibus. Grounds of appeal must arise from the decision appealed against. Where a ground of appeal has no connection with the decision appealed against, the ground is incompetent and would not be countenanced by the Court. The ground and issue distilled therefrom are liable to be struck out. See MERCANTILE BANK OF NIG PLC vs. NWOBODO (2005) 10-11 SCM 168, OBA vs. EGBERONGBE (1999) LPELR (2146) 1 at 5-6 and OKAFOR vs. ABUMOFUANI (2016) LPELR (40299) 1 at 15.
There is absolutely nothing on the award of damages, be it N500, 000.00 or any other amount, in the judgment of the lower Court. In the words of Karibi-Whyte, JSC in SARAKI vs. KOTOYE (1992) LPELR (supra) at 23-24:
It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision? Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment…
Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.
The said ground six (6) of the Amended Notice of Appeal is accordingly incompetent and it is liable to be struck out.
Even though there was no challenge to ground five (5) of the Amended Notice of Appeal and I have held that ground 2 is competent, issue number iv crafted by the 1st-3rd Appellants is said to have been distilled from grounds 2, 5 and 6 of the Amended Notice of Appeal. The incompetence of ground 6 of the Amended Notice of Appeal has consequently affected the said issue. The law is that an issue distilled from competent and incompetent grounds of appeal is incompetent and the Court cannot delve into the issue to excise arguments in respect of the competent grounds from the incompetent grounds: JEV vs. IYORTYOM (2014) 4 NWLR (PT 1426) 578 at 608, AGU vs. AYALOGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 and OSAYABAMWEN vs. IRORO (2016) LPELR (40804) 1 at 29-30. Issue iv is therefore struck out.
The preliminary objection, to the extent that ground 6 and issue iv have been struck out, succeeds in part. The effect of the striking out of issue iv is that grounds 2 and 5 which the issue were also said to have been distilled from are deemed abandoned and accordingly struck out: NGILARI vs. MOTHERCAT LTD (1999) LPELR (1988) 1 at 47 -48, PDP vs. INEC (2014) LPELR (23808) 1 at 23 and WASSAH vs. KARA (2014) LPELR (24212) 1 at 41. We now segue to consider the merits of the appeal of the 1st-3rd Appellants and thereafter that of the 4th-6th Appellants.
THE APPEAL OF THE 1ST-3RD APPELLANTS
The surviving issues are issue numbers (i), (ii) and (iii). The said issues all deal with the competence of the action and the jurisdiction of the lower Court to entertain the same. It seems to me therefore that there is a need to reformulate the issues in order to give the issues precision and clarity, so as to conduce to a judicious and proper determination of the appeal of the 1st-3rd Appellants, by bringing out the pith of the contention in the interest of accuracy and brevity. See UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847 and MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127.
In this wise, the coalescent distensible on issue on the basis of which I will consider the submissions of learned counsel and decide the appeal of the 1st-3rd Appellants is:
Was the action at the lower Court competent and did the lower Court rightly assume jurisdiction to entertain the action
SUBMISSIONS OF THE 1ST-3RD APPELLANTS’ COUNSEL
It was submitted that the 1st & 2nd Respondents in response to the preliminary objection to the competence of the action stated that the action was a pre-election matter and that issues having been joined on that, the lower Court did not have the power to set up a different case by holding that the action was for enforcement of the decision of the High Court of the Federal Capital Territory. It was opined that if the lower Court had adverted its mind to the contention of the 1st & 2nd Respondents and applied the provisions of Section 285 (9) of the 1999 Constitution, it would have been obvious that the decision of the High Court of the Federal Capital Territory which they sought to enforce was made more than 14 days before the action was filed contrary to Section 285 (9) of the 1999 Constitution.
It was further submitted that by Section 87 (9) of the Electoral Act, it is an aspirant for the primary election that can contest the outcome of the primary and not the alleged members of State Executive, which the 1st & 2nd Respondents claim to be. The lower Court it was maintained did not have jurisdiction as the procedure prescribed by law to commence the action was not followed vide UDEAGHA vs. OMEGARA (2010) ALL FWLR (PT 542) 1785 at 1809 and CALABAR CENT. COOPERATIVE THRIFT & CREDIT SOCIETY vs. EKPO (2008) 4 SCM 17 at 41-42. It was asserted that the 1st & 2nd Respondents, not being parties to any primary election of the 3rd Respondent, have no standing to sue as they have no special interest in the subject matter of the litigation. The case of NYAME vs. FRN (2010) 4 SCM 61 at 98 and UNITY BANK PLC vs. NWADIKE (2008) ALL FWLR (PT 444) 1571 at 1593-1595 were referred to. It was conclusively submitted that there are abundant facts via documents indicating that the suit was an abuse of process of Court.
SUBMISSIONS OF THE 1ST & 2ND RESPONDENTS? COUNSEL
The quiddity of the contention of the 1st & 2nd Respondents is that the lower Court fairly considered the case presented when it dismissed the preliminary objection. It was submitted that by the definition of pre-election matter in Paragraph 14 (a) of the Fourth Alteration Act, the action is not a pre-election matter as none of the parties at the lower Court was a candidate at the primaries for purpose of being sponsored for an election. The action it was stated, was occasioned by the violation of the orders of the High Court of the Federal Capital Territory, Abuja which the 3rd Respondent was meant to obey, as borne out by the declaratory orders sought at the lower Court to invoke the coercive jurisdiction of the lower Court within the realm of Section 251 and Section 295 (2) of the 1999 Constitution. It was stated that the disobedience of the Court orders continued unabated and the enforcement of the Court order can be effected at any time, such that the 14 day limit of the Fourth Alteration Act is inapplicable. The action to enforce the Court orders it was stated was not an abuse of process as the lower Court rightly found that the parties in the different cases were not the same. It was conclusively submitted that the lower Court was imbued with jurisdiction since officials should operate within the rule of law vide BFI GROUP CORP vs. BPE [no reference supplied] at 245.
RESOLUTION OF THE APPEAL OF THE 1ST-3RD APPELLANTS
The question of competence and jurisdiction raised in this appeal is not convoluted. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) I ALL NLR 587 at 595 the apex Court stated as follows:
A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. SeeIBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. See IKECHUKWU vs. FRN (2015) LPELR (24445) 1 at 16.
The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to see: OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669. The Courts duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003) 7 WRN 95 at 112 ? 113.
Now, the concept of jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class; or (ii) the right of a Court to exercise its powers over a particular subject matter or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all. It has not been argued that the lower Court, the Federal High Court, does not have the legal capacity to adjudicate. It is therefore the narrower sense of the concept of jurisdiction, id est, the exercise of the Court?s power over the particular subject matter or the res in the case that is in contest. It is rudimentary law that jurisdiction is determined by the claimant?s claim. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9 ? 10 SC 31, TUKUR vs. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517, A-G KWARA STATE vs. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663, ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and JAMES vs. INEC (2015) ALL FWLR (PT 787) 652 at 704. As stated by Tobi, JSC in ONUORAH vs. KRPC LIMITED (2005) LPELR (2707) 1 at 15:
The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.?
I have already set out the reliefs claimed by the 1st & 2nd Respondents. For the lower Court to have the jurisdiction and requisite competence to entertain the matter, the subject matter must be within its statutory jurisdiction. The lower Court is a Court of enumerated jurisdiction in respect of the items set out in Section 251 of the 1999 Constitution.
In order to exercise jurisdiction over a cause, the subject matter must be within the items which could be pitchforked into the enumerated jurisdiction of the Federal High Court: OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (PT. 1156) 563 at 585 and OLUTOLA vs. UNILORIN (2004) 18 NWLR (PT 905) 416 at 462. The lower Court was well aware of this and at page 789 of Volume II of the Records it stated thus:
The Counsel to the Objectors have made very heavy weather of the provisions of Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria [as amended] in urging me to hold that the Federal High Court has no jurisdiction to entertain this present suit.
I have read through the argument of Counsel on both sides and the authorities relied upon. There is no denying the fact that the Federal High Court is a Court with special jurisdiction circumscribed by the provisions of Section 251(1) of the 1999 Constitution.
The lower Court identified the subject matter of the action in the following words at page 790 of Volume II of the Records:
In this case therefore, I am bound to take a deep look at the reliefs endorsed by the Plaintiffs in their Originating Summons in order to come to a conclusion whether I have jurisdiction or not to entertain the action. ?The claims of the Plaintiffs and the questions raised for determination reveal that I have simply been called upon to enforce the orders made on 20th September, 2018 and judgment delivered on 13th December, 2018 by the FCT High Court, coram Musa, J.
Obviously, the claim by the Plaintiffs as endorsed in the Originating Summons involve interpretation of the 1999 Constitution [as amended], the Constitution of the 1st Defendant and the judgment and orders of the FCT High Court in order to possibly enforce same. In this scenario I am unable to accede to the argument Learned Counsel to the Objectors that this Court does not have both subject matter jurisdiction and party jurisdiction.?
In expounding its jurisdiction and deciding on the statute that imbued it with jurisdiction to espouse the 1st & 2nd Respondents action, the lower Court took solace in the stipulations of Section 251 (1) (s) of the 1999 Constitution and Section 87 (9) of the Electoral Act. Hear the lower Court: Subsection (s) of Section 251 (1) provides that the Federal High Court shall have an [sic] exercise ?such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Thus, the National Assembly is imbued with powers to enact laws which may donate fresh jurisdictions to the Federal High Court either exclusively or to be exercised alongside other Courts of coordinate jurisdiction. And Section 87 (9) of the Electoral Act did just that.
The thrust of this case is to enforce the judgment and orders of the FCT High Court which judgment is now deemed the judgment of this Court.? (Underlining supplied)(See page 789 of Volume II of the Records)
The lower Court then conclusively held as follows at page 792 of Volume II of the Records:
This ground of the objection based on the jurisdiction of this Court to entertain the suit fails and same is accordingly dismissed. I hold that this Court has the jurisdictional competence in the peculiar facts and circumstances of this case to entertain the action.
In the prolegomenon, I restated that the contest between the parties was with respect to the State Executive of the Cross River State Chapter of the 3rd Respondent and whether there has been disobedience to the orders of the High Court of Federal Capital Territory in respect thereto; and also as it relates to the occupation and of the Secretariat Annex of the 3rd Respondent. Now, does Section 87 (9) of the Electoral Act relied upon by the lower Court imbue it with jurisdiction to enforce the order of a Court with regard to the persons who are to hold offices in a political party and who are to be engaged in the governance of a political party? The said section provides as follows:
(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been compiled with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.?For the stipulations of the above Section 87 (9) to be applicable, the facts and circumstances of the case must fall within the ambit of the stipulation. The provision donates jurisdiction to the Court in very circumscribed situations, that is, where there is a complaint that the relevant provisions and guidelines have not been complied with in the selection or nomination of the candidate of a political party for election. It is therefore clear that the provision is not a carte-blanche. It has to be a complaint relating to the selection or nomination of a candidate for election: MADUEMEZIA vs. UWAJE (2015) LPELR (24542) 1 at 18-19. The facts of this matter do not relate to the nomination or selection of anyone as a candidate of a political party for election. At the risk of prolixity, it is in respect of the alleged disobedience of the orders of the High Court of the Federal Capital Territory as it relates to the State Executive of the Cross River State Chapter of the 3rd Respondent and the occupation of the Secretariat Annex of the 3rd Respondent. Accordingly, the limited jurisdiction conferred by Section 87 (9) of the Electoral Act, 2010 as amended, does not in any way or manner imbue the lower Court with jurisdiction in the diacritical circumstances of this matter. The subject matter was also not within the enumerated jurisdiction of the lower Court under Section 251 (1) of the 1999 Constitution. Paucis verbis, the lower Court did not have the jurisdictional competence to entertain the action. The lower Court was therefore was wrong when it held that it was imbued with jurisdiction to entertain the matter by Section 87 (9) of the Electoral Act (see page 789 of Volume II of the Records). In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.?
In a coda, from the totality of the foregoing, the coalescent distensible issue for determination must indubitably be resolved against the 1st & 2nd Respondents. We now dovetail this judgment to the consideration and resolution of the appeal of the 4th-6th Appellants.
THE APPEAL OF THE 4TH-6TH APPELLANTS
I have already set out the issues which the 4th-6th Appellants distilled for determination in their appeal. I restate that the 1st & 2nd Respondents did not file any Respondents Brief in respect of the appeal of the 4th-6th Appellants. This notwithstanding, it still behoves the Court to consider the contention of the 4th-6th Appellants to see it they are such that can result in the decision of the lower Court being overturned. As earlier indicated, the 4th-6th Appellants were given leave to appeal as persons interested. The leave granted is for them to appeal against the judgment of the Federal High Court, Calabar Division in SUIT NO. FHC/CA/CS/73/2018. Indeed, the Notice of Appeal filed by the 4th-6th Appellants, inter alia, reads:
… the Appellant being dissatisfied with the decision of the Federal High Court contained in the judgment of Hon. Justice S.A. Amobeda (sitting as Court 2 Calabar in Suit Number: FHC/CA/CS/73/2018), dated the 11th day of February 2019 doth hereby appeal to the Court of Appeal…When the decision appealed against is conualized, it becomes apparent that issue number one distilled by the 4th-6th Appellants is not a proper issue in this matter vis-a-vis the decision appealed against. This is so because the said issue number one is a challenge on the decision of the High Court of the Federal Capital Territory which is not the subject of this appeal. For ease of reference, the said issue reads:
Whether the learned trial Judge sitting in the High Court of the Federal Capital Territory, Abuja, in Suit No: FHC/HC/BW/106/2018 had jurisdiction (Territorial and otherwise) to make the Orders which were subsequently enforced in the Federal High Court.
Since the decision of the High Court of the Federal Capital Territory, Abuja is not the decision appealed against in this matter, and the decision of the Federal High Court, Calabar Division, appealed against did not decide on the Territorial jurisdiction or otherwise of the High Court of the Federal Capital Territory, Abuja (which in any event it could not have done since they are Courts of coordinate jurisdiction), this issue number one formulated by the 4th-6th Appellants does not arise from the decision appealed against. It is rudimentary law that issues for determination in an appeal must not only be related to or arise from the grounds of appeal filed, but must be traced to the judgment or decision being appealed against. Any issue for determination which does not flow from the judgment appealed against is not competent. See WESTERN STEEL WORKS LTD vs. IRON & STEEL WORKERS UNION (NO. 2) (1987) 1 NWLR (PT 49) 284 at 304, ONYESOH vs. NNEBEDUM (1992) 3 NWLR (PT 229) 315, OWNERS OF M/V GONGOLA HOPE vs. SMURFIT CASES NIGERIA LTD (2007) LPELR (2849) 1 at 19-20 and OSAREREN vs. FRN (2018) LPELR (43839) 1 at 17. In the circumstances, the 4th-6th Appellants issue number one is hereby struck out for being incompetent. Concomitantly, I will consider and resolve the appeal of the 4th-6th Appellants on their issue numbers two and three. I will consider the submissions on the said issues together and then resolve the appeal seamlessly en bloc. I iterate that there is no Respondents Brief filed by the 1st & 2nd Respondents.
ISSUES FOR DETERMINATION
Whether the learned trial Judge was right when he made the Orders against the present Appellants who were not at any time parties on record.
Whether the learned trial Judge was right when he strayed into the domestic jurisdiction of a political party.
SUBMISSIONS OF THE 4TH – 6TH APPELLANTS? COUNSEL
It is submitted that the 4th-6th Appellants were not parties in the action at the lower Court but that the decision of the lower Court as shown in the enrolled order at pages 829-832 of Volume II of the Records unequivocally affected the 4th-6th Appellants and prejudiced their settled rights. It was opined that the said orders made without affording them a hearing are void and ought to be set aside vide OLAWOYE vs. JIMOH (2013) LPELR 20344 SC or (2013) NWLR [sic] (PT 1371) 362, OGUNKUNLE vs. ETERNAL ORDER OF THE CHERUBIM & SERAPHIM (2001) LPELR ? 2339 SC or (2001) 12 NWLR (PT 727) 359. It was asserted that the 4th-6th Appellants ought to have been made parties so that they could receive a hearing before an order affecting their interest is made. It was conclusively submitted that in enforcing the decision of the High Court of the Federal Capital Territory Abuja on who the State Executive of the 3rd Respondent should be, the lower Court strayed into the domestic jurisdiction of a political party which is not justiciable. The case of UFOMBA vs. INEC (2017) ALL FWLR (PT. 913) 829 was relied upon.
RESOLUTION OF THE APPEAL OF THE 4TH-6TH APPELLANTS
At the risk of being prolix, the decision of the High Court of the Federal Capital Territory which the 1st & 2nd Respondents approached the lower Court to enforce relates to the State Executive of the Cross-River State Chapter of the 3rd Respondent and access to the occupation and use of the Secretariat Annex of the 3rd Respondent. The 4th-6th Appellants were not parties in the action at the lower Court. With the leave of this Court, they appeal in a representative capacity as selected or nominated candidates of the 3rd Respondent in elections conducted by the Independent National Electoral Commission. So, while the decision of the High Court of the Federal Capital Territory related to the party officials of the 3rd Respondents, the 4th-6th Appellants are candidates of the 3rd Respondent for elective offices in elections conducted by the Independent National Electoral Commission. Given this clear distinction in the litis contestatio at the High Court of the Federal Capital Territory and the enforcement proceedings at the lower Court, and the position of the 4th-6th Appellants, it is understandable why they were neither made parties nor joined in the suit. The only problem arose from the orders made by the lower Court. I have already set out, verbatim ac literatim, the reliefs claimed by the 1st & 2nd Respondents at the lower Court. The said reliefs were granted after which the lower Court proceeded to grant reliefs which were not claimed but which it termed ?consequential orders.? It was in the grant of the said ?consequential orders? that the lower Court went beyond enforcing the decision of the High Court of the Federal Capital Territory, which related to the State Executive of the Cross-River State Chapter of the 3rd Respondent, to making orders on the candidates of the 3rd Respondent for elective offices. In making the said orders, the said candidates for elective offices were neither joined as parties to the action nor given a hearing. I will reproduce once again the ?consequential orders? which is the fulcrum of the complaint of the 4th-6th Appellants.
At pages 827-828 of Volume II of the Records, the lower Court ordered:
It is also hereby consequentially ordered as follows:
1. The Defendants are to forthwith reverse all steps taken by them in flagrant disobedience of the orders of Court including but not limited to the submission of names of candidates for elective positions in the forthcoming general elections for membership the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
2. The Independent National Electoral Commission (INEC) be and is hereby ordered not to recognize or in any manner endorse any step whatsoever taken by the 2nd – 4th Defendants purportedly as members of the State Executive Committee of the 1st Defendant in Cross River State including the submission of names of candidates for elective positions in the forthcoming general elections for membership the Cross River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State.
3. The candidates for elective positions in Cross River State in the forthcoming general elections for membership the Cross-River State House of Assembly, House of Representatives and Senate and the Governorship of Cross River State whose names are submitted by the Defendants to INEC be and are hereby restrained from howsoever or in any manner whatsoever campaigning or doing anything in furtherance of their candidacy in the 2019 General Election.
4. That the order of Justice O. A. Musa of FCT High Court on 20/9/18 which states that any nomination made in disregard of this order shall be void is hereby enforced.
5. It is hereby ordered that all the nominations made and submitted to Independent National Electoral Commission (INEC), by the 1st Defendant is void and the same Independent National Electoral Commission (INEC) is hereby ordered to remove the names of the Candidates of the 2nd – 4th Defendants from the list of Candidates to contest for the Election in the forth-coming General Elections for membership of the Cross River State House of Assembly, House of Representatives, Senate and the Governorship of Cross River State of the 2019 General Elections.
6. It is hereby ordered that the National Working Committee of the 1st Defendant and Independent National Electoral Committee (INEC) to receive the list of all Candidates emerged from the Godwin Etim John led State Executive for the 2019 General Elections.
So, without hearing the 4th-6th Appellants and without their being made parties to the action, the lower Court ordered that their names be removed as candidates for the National Assembly, Governorship and Cross River State House of Assembly elections. This cannot stand in law. It is settled law that a Court cannot make a finding that will be prejudicial against a person that is neither before it nor a party to the case and cannot in the same vein grant a relief which will affect a person who is not a party in the suit: OKONKWO vs. OKAGBUE (1994) 9 NWLR (PT 368) 301, REYNOLDS CONSTRUCTION COMPANY vs. REYNOLDS BREEZING BROWN (1993) 6 NWLR (PT 297) 122, OLORIODE vs. OYEBI (1984) 5 SC 1 and PDP vs. INEC (2012) LPELR (9225) 1 at 18-19. In the words of Bage, JSC in OYEYEMI vs. OWOEYE (2017) LPELR (41903) 1 at 27-28:
The effect of orders(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted… that where a person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the Appellants right to fair hearing.
See also OVUNWO vs. WOKO (2011) 7 SCM 207 at 231-232 and NURTW vs. RTEAN (2012) 3 SCM 171 at 178-179 and ALIOKE vs. OYE (2018) LPELR (45153) 1 at 18.
The 4th-6th Appellants not being parties, and not having been heard before the orders prejudicial to their interest were made, is a violation of their right to fair hearing. The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a person entitled to be heard has been given the opportunity of a hearing: KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448. Once an appellate Court comes to the conclusion that the person was entitled to be heard before a decision was reached, but was not given the opportunity of a hearing; the decision reached is bound to be set aside. See OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 at 605. Inexorably, on the hornbook state of the law, the lower Court was not right when it made the consequential orders which affected the 4th-6th Appellants and who were not parties in the action.
I find in the third issue of the 4th- 6th Appellants, a subtle invitation for this Court to pronounce on the propriety of the decision of the High Court of the Federal Capital Territory and whether it related to the domestic jurisdiction of a political party as to its party officials and executive. I reject the invitation. In dealing with the action to interpret and determine whether there had been disobedience of the orders of the High Court of the Federal Capital Territory, the lower Court, strictu sensu, did not stray into the domestic jurisdiction of a political party. If any such thing happened, it is in the orders of the High Court of the Federal Capital Territory, which the lower Court was to interpret and enforce and which is not the subject of the appeal before us. Since it is not for this Court to maraud for chivalric virtues, I will jump over and let that sleeping dog lie, particularly when in Ground Nine of the Notice of Appeal, it has been stated that there is an appeal pending against the said orders of the High Court of the Federal Capital Territory before the Abuja Division of this Court in APPEAL NO. CA/A/19/19. In a summation, issue number two having been resolved in favour of the 4th-6th Appellants signposts the success of their appeal.
PERORATION
It seems that every blade of grass in the field of this judgment has been tended and groomed. The appeal of the 1st-3rd Appellants has succeeded. The appeal of the 4th-6th Appellants has also succeeded. The concatenation is that the decision of the lower Court, which was given without jurisdiction and which made orders against persons who were not parties and who were neither heard nor given the opportunity of a hearing, is liable to be set aside. Conclusively, the judgment of the lower Court delivered on 11th February 2019 is hereby set aside in its entirety. The action filed by the 1st & 2nd Respondents before the Federal High Court, Calabar Division, in SUIT NO. FHC/CA/CS/73/2018 is dismissed. The Appellants are entitled to the costs of this appeal which I assess and fix at N500, 000.00 each, in favour of each set of Appellants, against the 1st & 2nd Respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
TIJJANI ABUBAKAR J.C.A.: My Lord and learned brother OGAKWU JCA, granted me the privilege of reading in draft the comprehensive leading Judgment just rendered in this appeal. My Lord gave comprehensive analysis of the issues nominated for discourse in this appeal.
A judgment given without jurisdiction cannot be affirmed, such judgment is invalid, null and void as it cannot be erected on any pedestal, where such judgment is given, it will collapse on appeal like pack of cards because it must be set aside, see: GBANIYI OSAFILE & ANOR V. PAUL ODI & ANOR (1990) LPELR-2783 (SC).
I entirely agree with my learned brother that before an order is made against a party, such a party must constitute an integral part of the parties before the Court, this is an essential requirement in the determination of jurisdiction of the Court to hear and determine a matter before it. A Court is competent when it is properly constituted with respect to the number and qualification of its members, the subject matter is within jurisdiction, the action is initiated by due process of law and any condition precedent to the exercise of its jurisdiction has been fulfilled, see: EMMANUEL OKPANUM V. SGE NIGERIA LTD (1998) LPELR-2516 (SC).
The decision of the lower Court made without jurisdiction and against persons who are not parties and therefore denied fair hearing cannot survive, the decision must be set aside, it is hereby set aside.
I endorse all consequential orders including the Order on costs.
Appearances:
E. E. Osim, Esq. for the 1st-3rd Appellants.
Awa Kalu, SAN with him, Nnaemeka Adiukwu, Esq. & Chijioke Atune, Esq. for the 4th-6th AppellantsFor Appellant(s)
A. E. Okpa, Esq. with him, Dr. O. E. Owa for the 1st & 2nd Respondents.
Mba E. Ukweni, SAN with him, Mrs. O. A. Ochi, Chief P. A. Akpoke, Mrs. E.O. Onah, Mrs. EO. Olowoniyi, Miss Eno Edet & I. J. Undiandeye, Esq. holding the brief of D. D. Dodo, SAN for the 3rd RespondentFor Respondent(s)
