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UBANDOMA & ANOR v. YAHAYA & ORS (2020)

UBANDOMA & ANOR v. YAHAYA & ORS

(2020)LCN/15621(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, August 04, 2020

CA/A/260/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. SALISU UBANDOMA 2. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

1. SAFIYANU YAHAYA 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. NIGER STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT(S)

 

RATIO:

THE IMPORTANCE OF JURISDICTION

 The Law is trite that issue of jurisdiction is very fundamental to adjudication because if a Court possesses no jurisdiction to adjudicate on a matter or where an Appellate Court lacks jurisdiction to entertain an appeal, the proceeding will be a nullity right from the commencement of the action or initiation of an appeal. The Court must therefore as a matter of utmost urgency decides issue or matter touching and concerning its jurisdiction once it is raised either by the parties or the Court of its own motion before delving into the merit of the action or appeal. Jurisdiction is the very heart of any matter. Any proceeding conducted without jurisdiction is void and a nullity ab nitio. I call in aid the imperishable words of that legal icon and a great jurist KAYODE ESO JSC (of blessed memory) in the case of the ATTORNEY- GENERAL OF LAGOS STATE VS. HON. JUSTICE L. J. DOSUNMU (1989) 3 NWLR (PT. 111) 552 at 608 C where the eminent jurist said:
“It is futile to set down issues, deliberate on the evidence led resolve point of law raised, if the Court seised of the matter is devoid of jurisdiction. The substratum of a Court is no doubt jurisdiction; without it the “labourers” therein, that is both litigants and Counsel on the one hand and the Judge on the other hand, labour in vain.” PETER  OLABISI IGE J.C.A

THE INTREPRETATION OF THE CONSTITUTION SHOULD BE ORDINARY AND PLAINLY BRING OUT THE REAL INTENTION OF THE LAW MAKER

Now the common approach to interpretation of the Constitution or Statute is to adopt the literal rule of interpretation by giving the words in the Constitution or the Statute their ordinary or grammatical meaning in order to bring out the intention of the legislature.
It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution the Court or Tribunal must construe or interpret the statute or the Constitution in a manner that will bring out plainly the real intention of the Lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate, design or purpose of the provisions of Constitution or statute that calls for interpretation. See:
1. HON. JAMES ABIODUN FALEKE V. INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 117 F – H per KEKERE- EKUN, JSC who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. PETER OLABISI IGE.J.C.A

ENSURING THE PROTECTION OF THE INTEREST OF THE PARTIES BY BRINGING OUT THE INTENDMENT OF THE LEGISLATURE WHILE INTERPRETING THE CONSTITUTION

INRE: CHIEF (MRS) PERPETUA MADUIKE VS BARR. ENYINNA ONUESBU & ORS (2019) 7 NWLR (PART 1671) 255 at 280 F – H to 281 A per PETER- ODILI, JSC who said:
“Therefore the Court has to interpret Sections 6 (6) (b), 7 (1) and 233 (5) CFRN together to bring out the intendment of the legislature while ensuring the protection of the interest of the party or parties. This does not detract from the guiding principle that in interpreting statutes, any provision that takes away the jurisdiction of the Courts on any matter is strictly construed. That is that at all times in the matter of interpretation of statutes including the Constitution, a very narrow interpretation that prescribes the jurisdiction of the Court is adopted. See Dr. Adewunmi Adeyemi-Bero v. Lagos State Development Property Corporation & Anor (2013) All FWLR (PUO I) 1447; (2013) 8 NWLR (Pt. 1356) 238; Attorney- General Bendel State v. Attorney – General Federation (1981) 10 SC 1; (1982) 3 NCLR 7; Barclays Bank v. CBN (1976) 1 All NLR 326; Alhaji Karim Adisa v. Emmanuel Oyinwola & Ors (2000) 6 SC 47; (2000) 10 NWLR (Pt. 674) 116.PETER OLABISI IGE.J.C.A

ALL RIGHTS OF APPEAL ARE STATUTORY AND IT CAN NOT BE DEPRIVED FROM ANY OTHER SOURCE

It is well established that the right to appeal does not exist for any person unless it is created by statute or the Constitution. It does not derive from any other source neither inherent jurisdiction nor common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision. So said Uwaifo, JCA, (as he then was) in the case of Chief Esuku & Anor v. Leko & 3 Ors. (1994) 4 NWLR (Pt.340) 625 at 632 C.A. also cited and relied on in the brief of the 1st, 3rd and 4th respondents and also referred to at page 324 of the records by the Court below.
In the case of Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 at 16, it is stated inter alia, as follows:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal, it must be demonstrated by the prospective appellant that such a right has been or is conferred on him by some statutes…”
See also the case of Prince Adigun & 2 Ors. v. The Attorney – General of Oyo State & 18 ors. ​(1987) 2 NWLR (Pt.56) 197; (1987) 3 SCNJ 118. PETER OLABISI IGE,J.C.A

APPELLATE COURT CAN ONLY EXERCISE JURISDICTION IN A MATTER IF THE LOWER COURT HAD JURISDICTION TO HEAR THE MATTER

This is why it is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below as without jurisdiction. An appellate Court can only exercise its appellate jurisdiction to correct the errors of the lower Court or the Court below. Thus or consequently, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. See perhaps Akinbobola v. Plisson Fisko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt. 67) 270 at 285; (1991) 1 SCNJ 129. On this ground alone, this appeal fails. This is because since the Court below held that the High Court had no jurisdiction to determine the appeal, it could not have on appeal, given any judgment deciding the merits of the appeal as would have been done by the High Court. PETER OLABISI IGE,J.C.A

THE STRICT CONSTRUCTION OF A STATUTORY PROVISION
It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to foe included. The latin maxim is “Expressio unius est exclusion aiterius” i.e. the expression of one thing is the exclusion of another. If is also termed ’inciusion unius est exclusin aiterius” or “enumeratin unius exciusio alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbunyiya & 5 Ors. v. Okudo & 2 Ors.(1979) 6-9 SC 32; (1979) ANLR LO5; (1979) 6-9 SC 24 at 35 (Reprint); Military Governor of Ondo State v. Adewumi (1988) 3 NWLR (Pt.82) 280; The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt. 118) 646; (1989) 9 SCNJ 80; Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor; (1993) 7 SCNJ (Pt. II) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. PETER OLABISI IGE, J.C.A

JURISDICTION IS A CREATION OF STATUTE

It is settled law that jurisdiction is a creation of statute or that jurisdiction is always donated by the Constitution or statute and is never inferred or implied. Looking closely “the relevant constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of Appeal the jurisdiction to hear appeals from the High Court emanating from decisions of that Court on appeal from Local government election Tribunals. It is not disputed that election petition proceedings are not part and parcel of ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose. Such provisions include appeals against decisions of the election Tribunals. PETER OLABISI IGE ,J.C.A

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Niger State Minna Division against the Appellant, 2nd and 3rd Respondents who were Defendants at the lower Court in Suit No. NSHC/MN/51/2020: SAFIYANU YAHAYA & ANOR VS. SALISU UBANDOMA & ORS.

The 1st Respondent and the 2nd Respondent had by their Originating Summons dated 17th day of September, 2019 and filed on 18th September, 2019 and taken out of the said Court against the aforesaid Defendants sought for the determination of the following questions viz:
1. WHETHER, having regards to the provision of Section 20 of the Niger State Local Government (Council Elections) Amendment Law 2011, Section 31 (2), (5) and (6) of the Electoral Act, 2010 (as amended) and the deposition on oath as contained in the various affidavits and documents personally deposed to or signed by the 1st Defendant (SALISU UBANDOMA), some of which he submitted to the 3rd Defendant thereof as contained In FORM EC.01, 1st Defendant’s Personal Data filled in 2nd Defendants Form and the sworn affidavit thereto, the 1st Defendant’s personal Information as supplied/contained therein is not false and or forged?
2. WHETHER having regards to the provision of Section 20 of the Niger State Local Government (Council Elections) Amendment Law, 2011, Section 31 (2), (5) and (6) of the Electoral Act, 2010 (as amended) and the deposition on oath as contained in the various affidavits and documents personally deposed to or signed by the 1st Defendant (SALISU UBANDOMA), some of which he submitted to the 3rd Defendant thereof as contained in FORM EC.01, 1st Defendant’s Personal Data filled in 2nd Defendant’s Form and the sworn Affidavit thereto, the 1st Defendant is disqualified to contest or be voted for, as the Magamo Chairmanship Candidate of the 2nd Defendant in the schedule for 30th November, 2019 or any date Local Government Section, in Niger State.
3. If the answer to question 1 hereof is in the affirmative, whether the 1st Defendant is qualified to have been nominated by the 2nd Defendant (All Progressive Congress) to represent her as her candidate for the Magamo Local Government Chairmanship Election schedule for 30th November, 2019 or any other date fixed by the 3rd Defendant.
In apparent anticipation of positive answers to the above questions, the Plaintiffs now 1st and 2nd Respondents to this appeal sought for the following reliefs:
1. A DECLARATION that going by the depositions on oath as contained in the various affidavits and documents personally deposed to or signed by the 1st Defendant (SALISU UBANDOMA) some of which he submitted to the 3rd Defendant as contained in FORM EC. 01, and the sworn affidavit thereto, the 1st Defendant’s personal information as to his actual age therein is false.
2. A DECLARATION that the 1st Defendant (SALISU UBANDOMA), is not qualified to have been nominated as the 2nd Defendant’s candidate for Magama Local Government Chairmanship Election scheduled for 30th November, 2019 or any other date fixed by the 3rd Defendant.
3. A DECLARATION that by virtue of Section 7 (4) and 106 (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); the 1st Defendant’s nomination as the Magama Local Government Chairmanship candidate by the 2nd Defendant to the 3rd Defendant for 30th November, 2019 Local Government election is a nullity.
4. AN ORDER DISQUALIFYING the 1st Defendant (SALISU UBANDOMA) from participating in the November 30th, 2019 Local Government Council Elections of Niger State as a candidate of the All Progressive Congress (party) 2nd Defendant for Magama Local Government Chairmanship Election Niger State.
5. AN ORDER SETTING ASIDE THE submission of the name of the 1st Defendant by the 2nd Defendant on 16th September, 2019, as its Candidate for the Magama Local Government Chairmanship Election to the 3rd Defendant scheduled for 30th November, 2019 or any other date scheduled.
6. A DECLARATION that in view of the disqualification of the 1st Defendant (SALISU UBANDOMA) the 2nd Defendant has no candidate for Magama Local Government Niger State Chairmanship Election scheduled for 30th November, 2019 or any other date fixed by the 3rd Defendant.
IN THE EVENT THAT THE ELECTION IS CONDUCTED BEFORE THE DETERMINATION OF THIS SUIT;
7. A DECLARATION that any vote or all votes cast for the 1st and 2nd Defendants are wasted votes.
8. AN ORDER DIRECTING THE 3RD RESPONDENT TO WITHDRAW CERTIFICATE OF RETURN (IF ALREADY ISSUED) to the 1st Defendant and issue same to the 1st Plaintiff.
9. AN ORDER OF INJUNCTION restraining the 3rd Defendant by itself, servants, agents, privies or otherwise however from recognizing the 1st Defendant as the Magamo Local Government chairmanship candidate of the 1st Defendant for Niger State Local Government election to hold on November 30, 2019.

The Originating Summons was accompanied by a 22 paragraph Affidavit and numerous exhibits.

The 1st and 2nd defendants file Counter Affidavit against the Originating Summon containing 12 paragraphs. The 1st and 2nd defendants also filed NOTICE of Preliminary Objection praying the lower Court as follows:
”1ST AND 2ND DEFENDANTS NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO SECTION 285(9) OF THE 1999 CONSTITUTION AS AMENDED BY 4TH ALTERATION ACT, SECTION 30 OF THE LOCAL GOVERNMENT COUNCILS ELECTION LAW AS AMENDED. ORDER 6 RULE 2(1) OF THE HIGH COURT (CIVIL PROCEDURE) RULES 2018 AND UNDER THE INHERENT JURISDICTION OF THE COURT
TAKE NOTICE that the Honourable Court shall be moved on the …. day of …. 2020 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel will be heard on behalf of the 1st and 2nd Defendant/Applicant praying the Court for;
1. AN ORDER of His Honourable Court striking out and/or dismissing the Plaintiffs/Respondent’s suit in limine and declining Jurisdiction to entertain and adjudicate there upon howsoever on the ground that inter alia that;
a. The Suit is fatally incompetent and nullity abinitio having been filed in clear violation of Section 285(9) of the 1999 Constitution (as altered by the 4th Amendment)
b. The plaintiff’s Suit was filed after the 14 days of the event complained of.
c. That the Originating Summon filed by the plaintiff was neither signed nor sealed by the Registrar of this Honorable Court as mandated by Order 6 Rule 2( 1) of the Rules of the Court.
d. The reliefs sought by the Plaintiff are not grantable.”

The Originating Summons was heard along with the Preliminary Objection at the end of which the lower Court found in its considered judgment delivered in 13th March, 2020 as follows:
“For all the reasons herein stated in this judgment, I hold that the sin of the Registrar in failing to endorse this suit cannot be visited on the plaintiffs and that failure did not and should not render originating summons a nullity.
On the whole all the grounds of the preliminary objection failed and said preliminary objection is hereby dismissed for lacking in merit and or substance.
Having held that this suit is competent, I will now deal with the claims of the plaintiffs.
The main grudge against the 1st defendant by the action of the plaintiffs is that the 1st defendant lied on oaths and forged all the documents which he submitted to the 3rd defendant to contest for the chairmanship of Magama Local government council election of 30th November, 2019. See paragraph 15 16, 17, 19 and 20 of the original affidavit and paragraphs 4, 5 and 6 of the further affidavit of 4th March, 2020.
This allegation was denied by the 1st and 2nd defendants. See paragraphs 4, 5 and 6 of the counter affidavit of the 1st and 2nd defendants.
The question is, did the 1st defendant submit any document to either the 2nd defendant or the 3rd defendant in preparation for the Magama chairmanship election which contained the age of the 1st defendant as alleged by the plaintiffs.
The answer can be found at page 2 of Exhibit E (1st August 1979), 9 personal particulars of persons seeking election to the office of chairman, vice chairman/or councilor), a certified true copy of certificate of primary school issued to the 1st defendant Niger state government dated 30th August, 1997 where it is stated that he was born in 1979, a copy of  declaration of age of the 1st defendant from High Court of Justice of Kebbi State on 25th May, 2019 which stated that he was born on 1st August, 1979, a copy of the west African examinations council, west African Senior secondary school Certificate issued to the 1st defendant which states that he was born on July 5th, 1976, a copy of the 1st defendant’s personal data form filed and submitted to the 3rd defendant where it was stated that the 1st defendant was born on 8th August, 1979, Exhibit F, which contains the personal particular of the 1st defendant which he submitted to the 3rd defendant, dated 13th September, 2019 wherein he stated that he was born on 15th August, 1979, a copy of a declaration of age of the 1st defendant from Niger state judiciary dated 2nd September, 2019, wherein it is stated that the 1st defendant was born on 15th August, 1983 and finally a copy of a certified true copy of certificate of primary education issued by Niger state government dated 10th December, 1996 wherein the 1st defendant was stated to have been born in 1983.
From the a have uncontradicted facts, it is clear that the 1st defendant submitted different dates of his birth in the documents which he submitted to the 2nd and 3rd defendants for the election of the Chairmanship of Magama Local government election which was scheduled by the 3rd defendant to take place on 30th November, 2019. The dates are:
1. 1st August, 1979
2. 8th August, 1979
3. 15th August, 1979
4. 15th August, 1983
I am convinced beyond reasonable doubt that the 1st defendant lied on oaths when he submitted form F to the 3rd defendant which contains different ages and amount to forgery and was not therefore qualified to contest the chairmanship election of Magama Local government area of Niger state. The action of the plaintiffs is in line with the provision of Section 31 (5) of the Electoral Act 2010 and Section 182(1) of the Constitution to challenge anybody who is suspected to have submitted to INEC (in this case NSINEC) a forged certificate or document. See ANGOS VS Seleketimibi 2009 LPELR 4038.
The next question is what is the consequence for the action of the 1st defendant on the 2nd defendant which submitted him as the candidate of the party in election.
The answer is provided by Section 31(8) of the Electoral Act 2010 which empower this Court to disqualify the said candidate. Consequently I hereby disqualify the 1st defendant from contesting the election of the chairmanship of Magama Local government area, which was conducted by the 3rd defendant on 30th November, 2019. See the case of Peoples Democratic Party and Ors vs. APC and Ors unreported SC 1/2020, delivered on 13th February, 2020, APC and Anor Vs. Senator Garba Marafa & Ors unreported SC 377/2019.
On the whole, the action of the plaintiff succeeds and all the issues posed by them are hereby resolved in the affirmative.
Since the 1st and 2nd defendant stated that the election has been conducted and a certificate of return was issued to the 1st defendant by the 3rd defendant, it is hereby declared that the said certificate of return issued to the 1st defendant is nuli and void and of no consequence whatsoever. Consequently the 3rd defendant is hereby ordered to declare as the winner the candidate of 2nd Plaintiff as Magama Local Government area chairmanship with the highest number of lawful votes casts on 30th November, 2019.
Secondly, it is hereby ordered that the 3rd defendant should withdraw forthwith, the certificate of return issued to the 1st defendant and issue a certificate of return to the candidate who had the highest number of lawful votes casts in the 30th November, 2019 Magama Local Government Area of Niger State.
it is further order that the 1st Plaintiff should be swear in forthwith as the chairman of Magama Local Government Area of Niger State.
Each party should bear its respective cost.
Judgment for the Plaintiff’s” (sic)

The Appellants were dissatisfied with the decision and has by their NOTICE OF APPEAL dated and filed on 20th of March, 2020 appealed to this Court on eight grounds which without their particulars are as follows:
2. PART OF THE DECISION APPEALED AGAINST; THE WHOLE DECISION.
3. GROUNDS OF APPEAL GROUND ONE
The Learned Trial Judge of the Lower Court erred in law by assuming jurisdiction in the matter when in fact the 1st Defendant/Appellant was not personally served nor was there any attempt at personal service on him with all the Originating Court Processes i.e. Originating Summons which error has occasioned grave miscarriage of justice.
GROUND TWO
The Learned Trial Judge of the Lower Court erred in law when he acted and assumed jurisdiction on an incompetent Originating Process that violates the provisions of Order 6 Rules 2 of the Niger State High Court (Civil Procedures) Rules 2018 thereby occasioning miscarriage of justice.
GROUND THREE
The Lower Trial Judge erred in law when it determine the case between the parties on the basis of Originating Summons when fact therein are in dispute.
GROUND FOUR
The Learned Trial Judge erred in law when he proceeded to hear the matter and determined same on the basis of Originating Summons when from facts presented, there was substantial dispute of facts.
GROUND FIVE
The judgment of the Lower Court is a nullity as same was heard and determined without ensuring that service of the originating summons was effected on the Appellant in the manner permitted by law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

GROUND SIX
The Learned Trial Judge erred in law and acted without jurisdiction by usurping the powers and functions of an Election Tribunal when it determined and disqualified the Appellant as duly elected and ordered that the 1st Plaintiff be sworn in forthwith as chairman of Magama Local Government.
GROUND SEVEN
The Learned Trial Judge of the Lower Court erred in law in its Ruling on the Ex-parte Application by the Plaintiffs/Respondents in determining issues as it relates to substituted Service as well as abridgement of statutory period of filing processes in this case without putting the 1st Appellant on notice.
GROUND EIGHT
The judgment of the Lower Court is against the weight of evidence.
More grounds of appeal may be filed on the receipt of the Record of Proceedings of the Lower Court below;
4. RELIEFS SOUGHT:
a. AN ORDER allowing the appeal and setting aside the entire decision of Lower Court delivered on the 13th Day of March, 2020 by Hon. Justice Muhammed Mohammed in Suit No: NSHC/MN/51/2020.
b. Dismissing the claims of the 1st and 2nd Respondents in its entirety with substantial cost.”
The Appellants’ Brief of Argument was dated and filed on 27th May, 2020 and deemed properly filed on 3rd June, 2020. The 1st Respondent’s Brief of Argument was dated and filed the 9th day of June, 2020 while the 2nd Respondent’s Brief of Argument dated 4th June, 2020 was filed on 9th June, 2020. The 3rd Respondent did not file Brief of Argument.

The Appellant’s Reply Brief to the 1st Respondent’s Brief of Argument was filed on 11th June, 2020. The Appellant’s Reply Brief to 2nd Respondent’s Brief of Argument was also filed the 11th day of June, 2020. The appeal was heard on 18th day of June, 2020 when the Learned Counsel to the parties in this appeal adopted their respective Brief of Argument.

It is here apposite to state that the 1st Respondent filed NOTICE OF PRELIMINARY OBJECTION against the jurisdiction of this Court to entertain the appeal herein. The objection which was dated 9th June, 2020 and filed on the same date reads:
NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO ORDER 7 RULE 1. ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that the 1st Respondent shall before or at the hearing of this appeal raise a Preliminary Objection to the competence of the Appeal and the jurisdiction of this Honourable Court to hear and determine the Appeal as presently constituted for the following reasons:
1. This Honourable Court lacks the requisite jurisdiction to entertain this instant appeal as presently constituted.
2. The instant appeal is statute barred having been caught up by the provisions of Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)(Fourth alteration).
3. The brief of argument filed by the Appellants is incompetent.
4. The instant appeal is academic, the Appellants having failed to frontally challenge/appeal against the decision of the trial Court which held thus at page 102-103 of the Supplementary Record:
From the above uncontradicted facts, it is clear that the 1st defendant submitted dates of his birth …. documents which he submitted to the 2nd and 3rd defendants for the election of the Chairmanship of Magama Local government election which was scheduled by the 3rd defendant to take place on 30th November, 2019. The dates are

1. 1st August, 1979
2. 8th August, 1979
3. 15th August, 1979
4. 15th August, 1983
Am convinced beyond reasonable doubt that the 1st defendant lied on oaths when he submitted form F to the 3rd defendant which contains different ages and amount to forgery and was not therefore qualified to contest the chairmanship election of Magama Local government area of Niger state.
AND TAKE FURTHER NOTICE that the Grounds of this application are as follows;
a) The subject matter of the decision in this appeal which borders on the Local Government Chairmanship is not one which this Court has appellate jurisdiction to entertain pursuant to the provision Section 246(1)(2) of the Constitution.
b) The instant appeal as constituted contravenes Section 285(12) of the Constitution of the Federal Republic of Nigeria (as amended) (Fourth Alteration, No. 21) having not been determined within Sixty (60) days from the date the Notice of Appeal was filed hence this appeal is statute barred.
c) The Appellant’s brief filed by the appellants is grossly incompetent, fundamentally flawed and irredeemably detective, same having not linked the issues formulated to either of the two notices of appeal.
d) The Appellants brief of argument filed on the it day of May 2020 is made up of 42 pages and same exceeds, the maximum number of pages of any brief as provided by Order 19 Rule 6 (a) of the Court of Appeal Rules, 2016.
e) The Appellants are therefore deemed to have abandoned this instant appeal having not filed a competent brief of argument.
f) Even in the incompetent Appellant Brief, there is no ground challenging the decision of the trial Judge that the 1st Appellant gave false Information and as such was not qualified to contest in the election.
g) In the circumstance, this Honourable Court lacks the jurisdiction to entertain the instant appeal as presently constituted.
h) Ground 8 in the Notice of Appeal is deemed abandoned and it is liable to be struck out as no issue was formulated from the said ground 8 in the notice of appeal.
(Underlined mine)

The arguments on the said Notice of Preliminary Objection can be found on pages 4 – 14 of the 1st Respondent’s Brief of Argument.

The 2nd Respondent also incorporated into its Respondent’s Brief of Argument paragraphs 2.0 – 2.1 thereof Notice of Preliminary Objection as follows:
“2.0 NOTICE OF PRELIMINARY OBJECTION
2.1 TAKE NOTICE that the 2nd Respondent shall, at the hearing of this Appeal, raise a Preliminary objection to challenge the competence of this Appeal and that this Honourable Court lacked the jurisdiction to entertain the Appeal for being defective.
GROUND OF THE OBJECTION
The Ground of the 2nd Respondent’s Preliminary objection is that:
a. The Notice of Appeal, at pages 262 – 275 of the Record of Appeal, listed the 3rd Respondent as one of the 5 Persons to be affected by this appeal but did not provide and endorse an ADDRESS FOR SERVICE on the 3rd Respondent, thus rendering the Notice of Appeal incurably defective and liable to be struck out.”

The Learned Counsel to the Appellant filed Appellant’s Reply to the 1st Respondent’s Notice of Preliminary Objection as well as against the Notice of Preliminary Objection on 11th June, 2020.

of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or NTribunal is not competent to entertain a matter or claim, or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the Suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Court. This issue can be raised by any of the parties or by the Court Suo Motu. When there are sufficient facts ex facie on the record establishing want of competence or jurisdiction in the Court, it is the duty of the judge or justice to raise the issue suo motu , if the parties fail to draw the Court’s attention to it. See ODIASE VS. AGHO SURRA. There is no justice in exercising jurisdiction where there is none. It is injustice to the Law, to the Court and to the parties so to do.” Thus where a Respondent believes or conceives that an appeal is fundamentally detective and does not confer jurisdiction on this Court to hear or entertain the appeal such a Respondent is entitled within the intendment of Order 10 Rule 1 of the Court of Appeal Rules 2016 to file an Objection to challenge the hearing or adjudication on the appeal so as to terminate the appeal in limine. Where the appeal is afflicted with a fundamental vice and is not redeemable by an amendment or is otherwise incurably defective this Court will lack the vires or jurisdiction to deal with the appeal on the merit.

This Court can only exercise its appellate jurisdiction and powers to hear and determine appeals from Court or Tribunal only when an Appellant exercises his right of appeal in accordance with the provisions of the Constitution and Statutes conferring Appellate jurisdiction on this Court and in consonance with the relevant of applicable Rules or Procedure. See 1. RALPH UWAZURIKE & ORS VS. ATTORNEY-GENERAL OF THE FEDERATION (2007) 8 NWLR (PART 1035) 1 AT 13 where OGBUAGU, JSC held:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the Rules of the Court. The failure by any Appellant or Appellants to comply with statutory provision or requirement prescribed by the relevant law/laws or Rules – (which are in the nature of a subsidiary legislation and perforce, must be obeyed) under which such appeals may be competent and properly brought before the Court, will certainly deprive the Appellate Court jurisdiction to entertain and or adjudicate on the appeal.”
2. NONYE IWUNZE VS. THE FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1404) 500 at 596 D-E where the apex Court in the land per RHODES – VIVOUR JSC had this to say:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of Court. The Court of appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with statutory provisions or the relevant rules of the Court.”

The Learned Counsel to the 1st Respondent MUSTAPHA SHABA IBRAHIM Esq., predicated his submission on the Notice of Preliminary

 

Objection on the following:
i. The Court of Appeal does not possess the appellate jurisdiction to entertain appeal on decision with respect to the seat of the Chairman of a Local Government
ii. The instant appeal is statute barred having been caught up by the provisions of Section 285(12) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
iii. The brief of argument filed by the Appellant is incompetent.
iv. The instant appeal is academic.
v. In the circumstance, this Honourable Court lacks the jurisdiction to entertain the instant appeal as presently constituted.

He stated that this Court is not endowed with jurisdiction to entertain appeals bordering on decision of the lower Court in respect of election of Chairman of Local Government. That appeals on Local government election matters are not accommodated under Section 246(1) (a – c) and 2 of the 1999 Constitution as amended which is the constitutional provisions granting Appellate jurisdiction to this Court in Election matters and decisions of National Assembly Election Petition Tribunals and Governorship and State Election Petition Tribunals.

That appellate jurisdiction cannot be conferred on this Court by inference in the absence of any specific legislation to that effect. He therefore submitted that this Court lacks jurisdiction to entertain the Appellants appeal. He relied on the case of OSI v. ACCORD PARTY (2017) 3 NWLR (PT. 1553) 387.

That in lines with authorities, the Court of Appeal which according to him was created by Section 237 of the Constitution was conferred original jurisdiction stated in Section 239(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended while Sections 239, 240, 241 and 246 relating to its appellant jurisdiction do not confer any jurisdiction on this Court to entertain and determine appeals from High Court of a State on matters bordering on Seat of a Local Government Chairman. He relied on the cases of GOMBE v. P. W. Nig. Limited (1995) 6 NWLR (PT 402) 402 at 422 per IGUH, JSC and ANPP v. GONI (2012) 7 NWLR (PART 1298) 147 at 187 – 188 C – A per ADEKEYE, JCA on interpretative jurisdiction of a Court.

He stated that it will amount to contravention of the Constitution to argue that the House of Assembly of Niger State can make a law to vest jurisdiction on the Court of Appeal to adjudicate on appeal in respect of a seat of a Local Government Chairman. That there is no such power in that it is the National Assembly pursuant to Section 246 (2) of the Constitution aforesaid that can make laws to accommodate appeals relating to chairman of a Local Government but that there is no such law in existence. That recently the Supreme Court held that there is no such right of appeal on decision bordering on a Local Government election of a Chairman. He relied on the case of ABDULLAHI G. USMAN V. APC & ORS SC. 209/2020 delivered on 12/5/2020.

He opined that the decision of High Court of Niger State has determined the rights of the parties herein to finality.

He also submitted that even if this Court can adjudicate on this matter, the appeal is caught by Section 285(12) of the Constitution which States that appeals in pre-election matters shall be heard and disposed off within 60 days from the date of filing.

That the Notice of Appeal on page 275 of the record was filed on 20/3/2020 and became spent on 19/5/2020. He relied on the cases of:
(1) APC V. EMENIKE & ANOR (2019) LPELR 46620
(2) ACTION CONGRESS OF NIGERIA & ANOR V. INEC (2013) LPELR – 20300 (SC) 38 – 39.
(3) EGBUNA V. CHUKWUELUE & ORS (2017) LPELR – 43442 (CA) 9 -10 E- D
He urged the Court to uphold the objection.

In response to the submissions of Learned Counsel to the 1st Respondent’s on the Notice of Preliminary Objection, the Learned Counsel to the Appellant EGWUABA RUEBEN Esq., stated that though this matter has to do with Local Government Chairmanship election but not regulated by Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 as amended in that the election was not conducted by the Independent National Electoral Commission (INEC). He stated that the subject matter of this case is the Local Government Chairmanship election regulated by Niger State Local Government law and that Electoral Act 2010 is not application. He relied on the judgment of this Court in ABDULLAHI G. USMAN VS. ALL PROGRESS CONGRESS(APC) & ORS delivered on 20/3/2020 in CA/S/8/2020.

On the submission of Learned Counsel to the 1st Respondent to the effect that the Niger State High Court is the final arbiter on this case, the Appellant’s Learned Counsel believes it is misconceived.

He opined that the Niger State High Court lacked jurisdiction to rely on the Electoral Act 2010 as amended in 2015 to determine the validity or otherwise of the nomination of a candidate in election to a Local Government. According to him only Niger State Election Petition Tribunal that can determine the nomination or otherwise of a Local Government Chairman and that to contend that the Niger State High Court is the first and last Court cannot be correct. According to him if this Court has no jurisdiction to set aside the judgment, then the lower Court lacked the jurisdiction to entertain the case. According to him this Court has appellate jurisdiction under Section 240 of the Constitution of the Federal Republic of Nigeria 1999 as amended. He in addition relied on Section 16 of Court of Appeal Act and Section 272 of the aforesaid Constitution of Nigeria 1999 as amended to contend that since the proceedings from which the appeal herein emanates or originated from the Niger State High Court in the purported exercise of powers conferred on it by the provisions of the Electoral Act 2010, this Court can validly hear and determine the appeal against the decision of lower Court.

According to Egwuatba Rueben Esq., for the Appellant, it is instructive to note that the Niger State High Court did not rely on Niger State (Local Government Council) Election law duty passed by Niger State House of Assembly to determine the matter but that the lower Court applied provisions of Electoral Act, and assumed jurisdiction to disqualify Appellant under the Electoral Act thus Court can in order to determine whether Niger State High Court was right in applying the provisions of Electoral Act in Local government election issue assume jurisdiction.

On the allegation of the 1st Respondent’s Learned Counsel to the effect that Appellant’s Brief of Argument is incompetent, Learned Counsel to the Appellant explained that application had been brought by the Appellant before this Court and the Appellant’s Brief had since been regularized without objection from 1st Respondent’s Learned Counsel on 27th May, 2020 and same deemed properly filed on 3rd day of June, 2020. That the Learned 1st Respondent’s Counsel raised the technical argument to run away from justice.

He relied on the case of MOMOH & ORS VS. ADEDOYIN & ORS (2017) LPELR – 43124 CA. He urged the Court to discountenance the Notice of Preliminary Objection of 1st Respondent.

In his own argument in support of the Notice of Preliminary Objection of the 2nd Appellant, the Learned Counsel to it, Mohammed Ndayako Esq., referred to the Notice of Appeal in this matter as contained on pages 262 – 275 of the record of appeal where according to him the Appellant listed 3rd Respondent as one of the five (5) persons to be affected by this appeal but failed to provide and endorse an Address for Service on the 3rd Respondent thus rendering the Notice of Appeal incurably defective and liable to be struck out. He relied on IHEDIOHA V. OKOROCHA (2015) LPELR – 40837 SC per Galadima JSC and CHINDA V. INEC (2019) LPELR – 47902 (CA) per ADAH JCA pages 19 – 25 E – A, He further relied on the case of ADEGBOLA & ORS VS. IDOWU, & ORS (2017) LPELR – 42105 SC per GALINJE JSC to support his stand that the Notice of Appeal founding the appeal herein is incurably defective thereby robbing this Court of the jurisdiction to entertain the appeal herein.

In his submission in opposition to the 2nd Respondent’s arguments, the Learned Counsel to the Appellant Egwuaba Rueben Esq., is of the view that the objection of the 2nd Respondent is an attempt to also run away from the merit of this case. That as at the time the Notice of Appeal and Appellant Brief were filed, the only address of 3rd Respondent was the physical Address at UMARU ERENA ROAD, behind CBN Office Minna Niger State and not until 3rd June, 2020 when EKO EJEMBI EKO Esq., brought a letter that he was instructed to represent the 3rd Respondent by which time the Notice of Appeal and the Appellant’s Brief had been filed and pending before this Court.

He submitted that the Notice of Appeal complied with the requirements of the Rules of this Court particularly ORDER Rule 2(1) of Appeal Rules 2016. He opined that the authorities relied upon by the 2nd Respondents are inapplicable.

RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTIONS
The real issue or question for determination on the Preliminary Objections of 1st and 2nd Respondents to the hearing or determination of appellant’s appeal is whether this Court has appellate jurisdiction or judicial powers to entertain, hear or determine any appeal from the decision of a High Court (including High Court of Niger State) on any pre and post Elections matters touching and concerning election of a Chairman or councilor into a Local Government Council in any State of the Federation.
The source of Appellate jurisdiction of this Court in Civil and Criminal matters can be found in Sections 240, 241 242 and 243 of the Constitution of the Federal Republic of Nigeria 1999 as amended all of which provide as follows:
“240 Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunal as may be prescribed by an Act of the National Assembly.
241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned.
(ii) where an injunction or the appointment of a receiver is granted or refused.
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(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.
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall He from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243. (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, an in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney – General of the Federation or the Attorney- General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental right as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of Section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.
Now the common approach to interpretation of the Constitution or Statute is to adopt the literal rule of interpretation by giving the words in the Constitution or the Statute their ordinary or grammatical meaning in order to bring out the intention of the legislature.
It is also trite law that in the quest to interpret or construe the provisions of a statute or the Constitution the Court or Tribunal must construe or interpret the statute or the Constitution in a manner that will bring out plainly the real intention of the Lawmaker or the framers of the Constitution and thus enhance its purpose. The Court or Tribunal has a bounden duty to consider as a whole the entire provisions of the law or the Constitution involved. The statute or the Constitution in question must not be construed in a manner that will do violence to the provisions being interpreted and must not be interpreted to defeat the ultimate, design or purpose of the provisions of Constitution or statute that calls for interpretation. See:
1. HON. JAMES ABIODUN FALEKE V. INEC & ORS (2016) 18 NWLR (PART 1543) 61 AT 117 F – H per KEKERE- EKUN, JSC who said:
“The settled canons of construction of constitutional provision are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A.G Bendel State v. A.-G., Federation (1981) 10 SC 132 – 134, (1982) 3 NCLR 1; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the Statute. See: Ojokolobo v. Alamu(1987) 3 NWLR (Pt.61) 377 at 402, F- H; Adisa v Oyinwola & Ors (2000) 6 SC (Pt. II) 47 (2000) 10 NWLR (Pt. 674) 116; Saraki v. F.R.N (2016) LPELR – 40013 SC (2016) 3 NWLR (Pt 1500) 531.”
2. INRE: CHIEF (MRS) PERPETUA MADUIKE VS BARR. ENYINNA ONUESBU & ORS (2019) 7 NWLR (PART 1671) 255 at 280 F – H to 281 A per PETER- ODILI, JSC who said:
“Therefore the Court has to interpret Sections 6 (6) (b), 7 (1) and 233 (5) CFRN together to bring out the intendment of the legislature while ensuring the protection of the interest of the party or parties. This does not detract from the guiding principle that in interpreting statutes, any provision that takes away the jurisdiction of the Courts on any matter is strictly construed. That is that at all times in the matter of interpretation of statutes including the Constitution, a very narrow interpretation that prescribes the jurisdiction of the Court is adopted. See Dr. Adewunmi Adeyemi-Bero v. Lagos State Development Property Corporation & Anor (2013) All FWLR (PUO I) 1447; (2013) 8 NWLR (Pt. 1356) 238; Attorney- General Bendel State v. Attorney – General Federation (1981) 10 SC 1; (1982) 3 NCLR 7; Barclays Bank v. CBN (1976) 1 All NLR 326; Alhaji Karim Adisa v. Emmanuel Oyinwola & Ors (2000) 6 SC 47; (2000) 10 NWLR (Pt. 674) 116.
Again for emphasis is the fact that where in the Constitution or statute the words are clear and unambiguous, the Court can expound the law giving effect to the words in there ordinary and natural meaning stated in a different way, I am saying that the responsibility of the Court is to expound the law as it stands. I rely on Ogbunyiya v Okudo (1979) All NLR (Reprint) 105; Nwanezie v Idris (1993) 3 NWLR (Pt.279) 1; PDP v. INEC (1999) XX NWLR (Pt. 626) 200; Ifezue v. Mbadugha (1984) 5 SC 79; (1984) I SCNLR 427
3. INEC VS. ABBA KABIR YUSUF & ORS (2020) 4 NWLR (PART 1714) 374 at 410 A -H per PETER ODILI – JSC.
4. WIKE EZENWO NYESOM VS. HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2016) 7 NWLR (PART 1512) 452 AT 527 F – H per KEKERE EKUN, JSC.
5. COMPTROLLER GENERAL OF CUSTOM VS. ABDULLAHI B. GUSAU (2017)18 NWLR (PART 1598) 353 AT 385 F – H TO 386 A per. EJEMBI, EKO, JSC.
A community reading of Sections 240, 241, 242 and 243 of the Constitution of Nigeria 1999 as amended glaringly show beyond any iota of doubt that this Court is not invested or endowed with appellate jurisdiction to entertain appeals bordering or pertaining to issues and matters relating to election of a chairman or Councilor into MAGAMA LOCAL GOVERNMENT COUNCIL OF NIGER STATE or any Local Government in the Federation.
The Appellant’s Learned Counsel has strenuously argued that Section 16 of the Court of Appeal Act and Sections 240 and 272 (1) and (2) of the Constitution aforesaid enable this to assume appellate jurisdiction. I can say straight away that Section 272 of the Constitution of the Federal Republic of Nigeria 1999 as amended only spelt out the jurisdiction committed to the High Court of a State and absolutely has nothing to do with the appellate jurisdiction of this Court vide Section 16 of the Court of Appeal Act. Section 16 of the Court of Appeal Act is wholly irrelevant as it does not grant jurisdiction to this Court in Local Government election(s) related matter or any electoral process bordering on Local Government elections. It is also relevant to state clearly that Sections 240, 241, 242 and 243 of the said Constitution do not bestow on this Court any jurisdiction on election matters in respect of a Local Government Area of a State. There aforesaid sections are made subject to Section 246 and 285 of the Constitution of the Federal Republic of Nigeria which confer appellate jurisdiction on Court of Appeal in respect of elections conducted by Independent National Electoral Commission of members of National Assembly, State Assemblies of the States in the Federation and in respect of a Governor of a State. For avoidance of doubt Sections 246 and 285 of the Constitution  of the Federal Republic of Nigeria 1999 as amended provide:
“246.- (1) An appeal to the Court of Appeal shall lie as of right from –
(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
(b) decisions of the National and State Houses of Assembly Election Tribunals; and
(c) decisions of the Governorship Election Tribunals, on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution;
(ii) any person has been validly elected to the office of a Governor or Deputy Governor; or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or Tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.
285 (1) There shall be established for the each State of the Federation and the Federal Capital Territory, one or more election Tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State.
(2) There shall be established in each State of the Federation an election Tribunal to be known as the Governorship Election Tribunal which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State
(3) The composition of the National and State Houses of Assembly Election Tribunal, and the Governorship Election Tribunal, respectively, shall be as set out in the sixth schedule to this Constitution.
(4) The quorum of an election established Tribunal under this section shall be the Chairman and one other member.

(5) An election petition shall be filed within 21 days after the date of the declaration of results of the election.
(6) An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7) An appeal from a decision of an election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.
“(8) Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.”
“(9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
(10) A Court in every pre-election matter shall deliver its Judgment in writing within 180 days from the date of filing of the suit.
(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
(12) An appeal from a decision of a Court in a pre- election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
(13) An election Tribunal or Court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.
(14) For the purpose of this section, “pre-election matter” means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating Elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
(Underlined mine)
There is nothing in the above provisions of the aforesaid Constitution empowering this Court to sit as Appellate Court on decision of the High Court of Niger State on who should be the Chairman of MAGAMA LOCAL GOVERNMENT AREA of Niger State in the Local Government election conducted by NIGER STATE INDEPENDENT ELECTORAL COMMISSION on November 30th, 2019. The same is true of in respect of other Local Government Councils in Nigeria and the FCT.
The High Court of Niger State was not established by the National Assembly but by the Constitution of the Federal Republic of Nigeria 1999 as amended pursuant to Section 6 (5)(6) thereof.
It is the House of Assembly of a State and in this case Niger State House of Assembly that has legislative powers pursuant to Section 4(6) (7) and Section 7 of the 1999 Constitution aforesaid to provide for Local Government Election Petition Tribunals or Court and Local Government Election PETITION APPEAL TRIBUNAL OR COURT to hear and determine pre and post election matters or issue or litigations relating to election(s) of Chairman or Councilors into a Local Government COUNCILS in the state. It is a matter exclusive to State Legislatures to legislate upon.
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 of Nigeria which has legislative powers and competence to do so.
The fact that the Niger State House of Assembly has by virtue of Section 20 of the Niger State Local Government (Council Elections) Amendment Law 2011 incorporated or legislated by reference, some provisions of the Electoral Act 2010 as amended into Niger State Electoral Laws will not and cannot by any stretch of imagination confer appellate jurisdiction on this Court over a decision of a High Court of Niger State in a dispute relating to Local Government Elections. Some sections of Electoral Act 2010 as amended and incorporated into Niger State Local Government (Council Elections) Amendment Law 2011 became part of Niger State law by adoption and as a law enacted by Niger State. The law is only applicable within Niger State and no more.
Look at from any angle, I am of the firm view that this Court is devoid of appellate jurisdiction or powers to entertain or adjudicate on the appeal herein as brought by the Appellant. See CHIEF (MRS) OLUFUNKE VICTORIA EHUWA VS. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 10 NWLR (PART 1012) 544 at 566 G per OGBUAGU JSC who said:
“The question that I or one may at once ask is, having regard to the clear and unambiguous provision of Section 94(2) of the law, which States:
“An appeal arising in respect, of an election petition, under this Law shall lie to the High Court of the State,”
can it be honestly and seriously contended or submitted as has been done in the appellant’s brief that because the Law did not expressly state/provide that the decision of the High Court shall be final, the Ondo State High Court is not the final Court for the determination of the Local Government Election appeals? I think not.
The next question is, did the law provide that an appeal from the Local Government Election petition shall lie to the Court of Appeal? Of course not. Commonsensically, could the Ondo State Legislature have made such a provision? And if it made it, can it ever be valid? The answers are NEVER – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate Court on the decision of an Election Petition Tribunal. Surely and certainly, and this is settled, an appellate jurisdiction, is obviously and clearly created by statute. Therefore, or thus, no Court has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provision.
It is well established that the right to appeal does not exist for any person unless it is created by statute or the Constitution. It does not derive from any other source neither inherent jurisdiction nor common law. No Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision. So said Uwaifo, JCA, (as he then was) in the case of Chief Esuku & Anor v. Leko & 3 Ors. (1994) 4 NWLR (Pt.340) 625 at 632 C.A. also cited and relied on in the brief of the 1st, 3rd and 4th respondents and also referred to at page 324 of the records by the Court below.
In the case of Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 at 16, it is stated inter alia, as follows:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal, it must be demonstrated by the prospective appellant that such a right has been or is conferred on him by some statutes…”
See also the case of Prince Adigun & 2 Ors. v. The Attorney – General of Oyo State & 18 ors. ​(1987) 2 NWLR (Pt.56) 197; (1987) 3 SCNJ 118.
In the case of Ajomale v. Yaduat & Anor (No.1) (1991) 5 NWLR (Pt.191) 257 at 263; (1991) 5 SCNJ 172 at 1757, it was held that in this country, the exercise of all original appellate jurisdiction is derived either from the 1979 Constitution or from a particular statute. That these are the only sources from which jurisdiction is derived. It referred to the case of Adili v. The State (1989) 2 NWLR (Pt.103) 305.
In the case of Odofin & Anor v. Chief Agu & Anor(1992) 3 NWLR (Pt.229) 350 at 369; (1992) 3 SCNJ 161 which dealt with the basis of the inherent jurisdiction of an appellate Court, it was held that the exercise of appellate jurisdiction is entirely statutory. That there can therefore, not be an inherent jurisdiction outside the statute.
All these pronouncements have been made by this Court and put the issue of jurisdiction of an appellate Court, beyond any controversy or doubt. In other words, since the right of appeal is created by the Constitution or Statute, no Court has the right to hear an appeal unless the jurisdiction is derived from the Constitution or Statute. See also the cases of Chief Denis Osadebay v. Attorney-General of Bendel State (1991) 1 NWLR (Pt.169) 525 at 571-572; (1991) 1 SCNJ 162; National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & 3 Ors (1996) 8 NWLR (Pt.465) 150 at 165; (1996) 9-10. SCNJ 147; Enugwu V. Okefi & Ors. (2000) 3 NWLR (pt. 650); 620 at 643 and Captain Akande v Nigerian Army (2001) 8 NWLR (Pt.714) 1 at 19 C.A, just to mention but a few. This is why it is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below as without jurisdiction. An appellate Court can only exercise its appellate jurisdiction to correct the errors of the lower Court or the Court below. Thus or consequently, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. See perhaps Akinbobola v. Plisson Fisko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt. 67) 270 at 285; (1991) 1 SCNJ 129. On this ground alone, this appeal fails. This is because since the Court below held that the High Court had no jurisdiction to determine the appeal, it could not have on appeal, given any judgment deciding the merits of the appeal as would have been done by the High Court.
For purposes of emphasis, the Ondo State Law is a statute which has not created any appellate jurisdiction for the Court of Appeal in respect of Local Government Elections. This is why I have stated that the law did not specifically mention that the Ondo State High Court sitting in its appellate jurisdiction, as a final Court, did not mean and does not mean that the appellant has a right of appeal to the Court below. In other words, since the law specifically mentioned that an appeal shall lie to the State High Court, I agree with the submission in the brief of the 1st, 3rd and 4th respondents in the oral submission of their counsel at the hearing of this appeal that it therefore excludes any other appellate Court including the Court of Appeal.
It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to foe included. The latin maxim is “Expressio unius est exclusion aiterius” i.e. the expression of one thing is the exclusion of another. If is also termed ’inciusion unius est exclusin aiterius” or “enumeratin unius exciusio alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbunyiya & 5 Ors. v. Okudo & 2 Ors.(1979) 6-9 SC 32; (1979) ANLR LO5; (1979) 6-9 SC 24 at 35 (Reprint); Military Governor of Ondo State v. Adewumi (1988) 3 NWLR (Pt.82) 280; The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt. 118) 646; (1989) 9 SCNJ 80; Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor; (1993) 7 SCNJ (Pt. II) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. The Court below per Augie, JCA, stated at page 323 records inter alia, as follows:
“This application raises an interesting albeit knotty angle to the issue of whether this Court has jurisdiction to hear appeals emanating from Local Government Election Petitions or not. I have considered the arguments of counsel and critically examined the state of law on appellate jurisdiction and I am of the firm view that this Court has no jurisdiction and cannot by any interpretation of the existing law hear such appeals, I say without equivocation that the decision of the High Court of the State sitting as an Appellate Court in respect of Local Government Election Petition is final, and this Court has no jurisdiction to entertain any further appeal from the said court.”
I cannot fault the above pronouncements. Even if it means repeating myself, this Court – per Bello, JSC, (as he then was) in the case of Adeyemi (Alaafin of Oyo) v. Attorney General of Oyo State 1984) NSCQ 397 at 419 – 420; (1984) 1 SCNLR 525 also referred to by the Court below, had this to say, inter alias
“It must be appreciated that the jurisdiction of appellant Courts in our judicial System is either constitutional or statutory. The appellate powers are conferred upon the Courts by the Constitution and the Federal and States Legislations: No Court has any inherent appellate jurisdiction. It follows therefore that unless jurisdiction is specifically conferred by the Constitution or legislation, an appeal Court will not entertain a particular appeal.”
In spite of this pronouncement and the other decided decision by this Court already referred to above by me. Mr. Nwafor Orizuin insist, albeit most erroneously, that even though the Ondo State Law did not specifically say that an appeal in an Election petition lies from the High Court to the Court of Appeal, the Court below has jurisdiction or perhaps, “inherent jurisdiction”, to entertain al! appeals from the High Court. Significantly, the learned counsel has not asked us to review the said (decision in Adeyemi’s case or in that of Odofin & Anor v. Chief Agu & Anor. (supra). Rather, and most ridiculously with respect, he is asking the Court to do an “interpretation” of what neither the 1999 Constitution nor the Ondo State legislation did not either contemplate or specifically provide. Of course, this Court will not oblige him. Such an indulgence in my respectful view, will not only be extremely absurd, but will amount to an academic exercise in relation to a hypothetical issue. It is important and in fact pertinent to stress that there is no Act of the National Assembly which confers jurisdiction on the Court of Appeal to sIt as an appellate Court in respect of decisions of the High Court sitting as an Appeal Court in respect of Local Government Election petition matters. I say so because, Section 240 of the 1999 Constitution which provides for the appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.”
Also, Section 246(1) of the 1999 Constitution deals with appeals to the Court of Appeal as of right from;
“(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution.
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
As rightly stated by the Court below, this Sub- section(1) did not confer jurisdiction on the Court of Appeal to hear appeals in respect off decisions of the High Court sitting as Election Appeal Court under the Local Government Law. It stated further at page 320 of the records, inter alia, as follows:
“An election petition is not the same as ordinary civil proceedings – see Orubu v. INEC (1988) 12 SCNJ 254; (1988) 5 NWLR (Pt. 94) 323; Awuse v. Odili (supra), besides the Ondo State Law is a State Law, which cannot validly confer jurisdiction on this Court to entertain such appeals. This is in accord with Section 246(2) of the 1999 Constitution which provides as follows –
The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or Tribunal established by the National Assembly.
I or one may ask, has the National Assembly or the Ondo State Assembly, made any law or provision condemn appellate jurisdiction on the Court of Appeal in respect of Local Government Election Petitions or appeals? Of course, the answer is in the negative and Nwafor Orizu, Esqr., knows this as a fact. The right of appeal, repeat, is a Constitution or Legislative matter. If it is not conferred then it is not there.”
On pages 576 G – H to 577 A – B of the Report, KALGO, JSC had this to say:
“It is well established that jurisdiction to hear or entertain an appeal on a matter must be derived or conferred by statute or Constitution. See Adigun v. A.-G., Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197; Ohuka v. State (1988) 1 NWLR (Pt.72) 5, 39. It cannot be presumed and no Court has the inherent power to hear appeal from the decision of any Court. See Adeyemi (Alaafin of Oyo) v. A.-G of Oyo State (1984) NSCC 397 at 41.9 – 420; (1984) 1 SCNLR 525. No where in the Electoral Act 2010 as amended any provision made for appeals from the decisions of the State High Courts on election Petitions to be heard by the Court of Appeal. There was no such provisions in the 1999 Constitution either, as only the National Assembly confer such powers ‘under S. 246(2) of the said Constitution. And the provision of S. 241 of the said Constitution would not apply because an election petition is not strictly civil proceeding; it is sui generis and moreover the High Court in this case heard the matter by way of appeal not at first instance. Having regard to the above, I am of the opinion that the Court of Appeal had no jurisdiction to entertain the appeal from the decision of the Ondo State High Court in this matter.”
On pages 582 D – G AKINTAN JSC had this to say:
“It follows therefore that the appellant’s claim before the Tribunal being a dispute as to which candidate was nominated for the Chairmanship of Ilaje Local Government in Ondo State, is not jursticiable having regard to the decision of the political party (PDP) as given in evidence by the state chairman of the party that the 2nd Respondent was the candidate nominated by the party for the election.
Similarly, as the jurisdiction of this Court and the Court of Appeal must either be conferred by the Constitution or a law enacted by the National Assembly, the Ondo State law which established the Ondo State Independent Electoral Commission and created the Election Tribunal, is incapable of conferring a right of appeal on both the lower Court and this Court. Both the lower Court and this Court therefore have no jurisdiction to entertain the petitioner’s appeal. Where therefore a Court lacks jurisdiction to entertain a claim, the proper order such a Court should make is one striking out matter. I therefore hold that the proper order which the lower Court and this Court should make in the appellant’s appeal is an order striking out the appeal.”
It is equally important to make reference to pages 589 H to 591 A per ONNOGHEN, JSC later CJN Rtd. who said:
“It is not in doubt at all that the election Tribunal, the decision of which was appealed to the High Court resulting in a further appeal to the Court of Appeal was not established by the National Assembly as required by Subsection 2 of Section 246 but by the Ondo State House of Assembly pursuant to Section 7 of the 1999 Constitution. That being the case, it would have been illegal or unconstitutional for the Ondo State House of Assembly to have enacted that an appeal against the decision of the Local Government Election Tribunal shall lie to the Court of Appeal. The question now is, whether what the Constitution does not provide for directly can be achieved indirectly or through the back door. In short, whether there being no direct further right of appeal against the decision of the said Tribunal in Local government election petitions the sane can be achieved through the general appellate jurisdiction conferred on the Court of Appeal by virtue of Section 240 of the 1999 Constitution. That is the crux off the matter in this appeal.
It is settled law that jurisdiction is a creation of statute or that jurisdiction is always donated by the Constitution or statute and is never inferred or implied. Looking closely “the relevant constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of Appeal the jurisdiction to hear appeals from the High Court emanating from decisions of that Court on appeal from Local government election Tribunals. It is not disputed that election petition proceedings are not part and parcel of ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose. Such provisions include appeals against decisions of the election Tribunals.
It is not disputed that by the provisions of Section 7 of the 1999 Constitution Local Government Elections and Election Tribunals sitting on petitions arising there from are matters within the legislative competence of the State Houses of Assembly which are by virtue of the provisions of Section 246(2) of the said Constitution and as earlier found in this judgment, incapable of conferring jurisdiction on the Court of Appeal to hear and determine appeals there from. I hold the view that the case of the appellant does not fall within the general provisions of Section 246 of the 1999 Constitution the purported appeal not arising from the normal or ordinary civil proceeding before the High Court but from the appellate jurisdiction or that Court exercised in respect of appeals from Local Government election Tribunals. It is clear and both counsel are agreed, that the Ondo State, Local Government Election Law, 2003 makes no provision for further appeal from the decision of the High Court on appeals to that Court from decision of the Local government election Tribunals even if it did, that provision would be unconstitutional as earlier stated in this judgment. The position of the law being as it is, hold the considered view that even though Section 94(2) (1) of the law does not state that the decision off the High Court of appeals from decisions of the Local movement election Tribunal “shall be final”, it is clear that, that is what the Ondo State legislature intended particularly as it has no legislative competence to confer jurisdiction on the Court of Appeal to hear appeals against decisions of the Local government election Tribunals established by it, its legislative competence under Section 7 of the 1999 Constitution being limited to the state and in matters of jurisdiction to the State High Court. To hold otherwise would mean opening the back door to the Court of Appeal for the appellant against whom the Constitution has closed the front door in respect of decisions of Local Government election Tribunals. To hold otherwise would also be absurd particularly as appeals from National Assembly and Governorship and Legislative Houses of Assembly election petition Tribunals end at the Court of Appeal as constitutionally provided for in Section 246(3) of the 1999 Constitution. If those against Local government election Tribunals that the life span of a Local government administration is about three minimum of five years from the Court of trial, such a decision will certainly lead to more absurdities.”
(Underlined mine)
See also: CUSTOMARY COURT OF APPEAL EDO STATE VS. CHIEF (ENGR.) E. A. AGUELE & ORS (2018) 3 NWLR (PART 1607) 369 at 391 A – H to 392 A – H to 392 A -E; per PETER – ODILI JSC and at page 399 C – F per AUGIE, JSC.
In the result, the Appellant’s appeal is grossly incompetent as this Court has no vires and appellate jurisdiction to adjudicate on the Appellant’s appeal.
Consequently, the Appellant’s appeal founded on the Notice of Appeal dated and filed on 20th March, 2020 contained on pages 262 – 275 of the main record of appeal is HEREBY Struck OUT on account of lack of appellate jurisdiction on the part of this Court on the subject matter of the appeal.
Parties to bear their respective costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, PETER OLABISI IGE, JCA afforded me the opportunity of reading in advance the judgment just delivered. I agree with the reasoning and conclusion arrived at in the lead judgment. This Court lacks jurisdiction and I agree with the orders made in the lead judgment. I have nothing to add.

Appearances:

EGWUABA REUBEN, Esq. For Appellant(s)

MUSTAPHA SHABA IBRAHIM, Esq. for the 1st Respondent

MOHAMMED NDAYAKO, MCIArb. for the 2nd Respondent

EKO EJEMBI EKO, Esq., with him, O. N BAMISAYEMI, Esq. for the 3rd Respondent For Respondent(s)