Dr. Ime Sampson Umanah V Obong (Arc.) Victor Attah & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Abuja wherein the court affirmed the decision of the trial Federal High Court which held that it had no jurisdiction to entertain the plaintiff’s suit and consequently struck it out.

The relevant facts are that the plaintiff and the 1st defendant contested the last general election held in April 2003 into the office of Governor of Akwa Ibom State. At the end of the election the 1st defendant who was sponsored by the 5th defendant was returned by the 4th defendant as the duly elected candidate.

Dissatisfied with the result of the election, the plaintiff filed a petition before the Governorship and Legislative Houses Election Tribunal for Akwa Ibom State. The tribunal consisted of a chairman and four members. Whilst the proceedings were still pending before the tribunal, the plaintiff on 10th July, 2003, petitioned the Chief Justice of Nigeria who is the chairman of the National Judicial Council complaining that the chairman and members of the tribunal had been compromised with large sums of money by the 1st defendant. On 14th July, 2003 the tribunal delivered its judgment in which it dismissed plaintiff’s petition as unmeritorious. The plaintiff timeously appealed to the Court of Appeal. But before doing so he addressed another petition to the Chief Justice of Nigeria on 24th July, 2003 about his earlier petition or complaint. Upon receipt of the plaintiff’s petitions, the National Judicial Council set up an Investigatory Committee to look into the allegations against the Tribunal. Meanwhile, the Court of Appeal which heard the appeal against the judgment of the tribunal, dismissed plaintiff’s appeal on 30th October, 2003. The committee of investigation confirmed the allegations made by the plaintiff against the tribunal and consequently the chairman and members of the tribunal were dismissed from service as reported and published in the Guardian Newspaper of 16th March, 2004.

On 3rd May, 2004, the plaintiff instituted this present suit in the Federal High Court against the defendants claiming thus:-

“(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because some of the Tribunal members have been found to have taken bribe.

(b) An account by the 1st defendant of the emoluments and all perquisites received by the 1st defendant as the Executive Governor of Akwa Ibom State since he was sworn in May 2003 and a refund of same to the Akwa Ibom State Government treasury.

(c) Perpetual injunction restraining the 1st defendant from exercising any authority or carrying on as the Executive Governor of Akwa Ibom State of Nigeria.”

On 5th May, 2004, the plaintiff filed an application for a constitutional reference of two questions to the Court of Appeal. On being served with the processes the 1st defendant filed a notice of preliminary objection pursuant to sections 246, 285 and 308 of the 1999 Constitution praying that the plaintiff’s suit be dismissed or struck out on the ground inter alia that the court has no jurisdiction to entertain same or grant any relief against or touching upon or relating to the 1st defendant. The preliminary objection was taken first. After hearing the arguments of counsel on both sides, the learned trial Judge came to the conclusion that he had no jurisdiction to entertain the suit and consequently struck it out.

Being dissatisfied with the ruling of the learned trial Judge, the plaintiff appealed to the Court of Appeal holden at Abuja. In the Court of Appeal the plaintiff submitted two issues for determination.

The issues read as follows:-

“1. Whether the Federal High Court has jurisdiction to nullify the judgment of an election petition tribunal (and the appellate judgment of the Court of Appeal affirming it) on the ground of fraud arising from the fact that the tribunal chairman and members were found to have received bribe from one of the parties in favour of whom the judgment was ultimately given.

2. Whether section 308 of the 1999 Constitution is a bar to the second relief contained on the appellant’s statement of claim which is consequential to the principal relief seeking to nullify the judgment of the election petition tribunal on the ground that the said judgment which confirmed the return of the 1st respondent as Governor of Akwa Ibom State was tainted with fraud in that the tribunal members were found to have received bribe from the 1st respondent.”

In the lead judgment of the Court of Appeal delivered by Muhammad, J.C.A., he said on page 373 of the record thus:- “The 5th respondent did not file any brief of argument against appellants issue No.1, 1st respondent and 2-4th respondents issues are on jurisdiction of the lower court on the suit filed before it. I shall consider this issue first.”

The lead judgment then proceeded straight to consider the submissions of counsel on the issue of jurisdiction. After a thorough review of the submissions, it came to the conclusion that the trial court was right to have declined jurisdiction in the suit. The court felt that there was no need for it to consider any other issue since the fundamental issue of jurisdiction has failed. I think the decision was right and proper. The plaintiff’s appeal was accordingly dismissed. The lead judgment on pages 376 and 377 of the record concluded thus:- “The subject matter before the trial court (which incidentally) was an election petition challenging the declaration of the 1st respondent by the 4th respondent as the elected candidate for the Governorship of Akwa Ibom State. An appeal against the declaration at the Court of Appeal was also unsuccessful. Thus, the subject matter before the Governorship and Legislative Houses Election Tribunal of Akwa Ibom State and the Court of Appeal, Calabar Division, was election petition and appeal lodged against it. In his considered ruling, the learned trial Judge declined jurisdiction. Now, having carefully considered the submissions of learned counsel for the respective parties in contrast with the ratio decidendi of the learned trial Judge, I cannot but agree with the learned trial Judge, that he lacked jurisdiction and same cannot be conferred on it by any guise even if with the consent of the parties. There are no two ways to it. There is no need for me to belabour the issues raised by the parties in this appeal any longer, as doing so will not change the position of the law on issue of jurisdiction adumbrated above. Accordingly, I find no merit in this appeal and I hereby dismiss it. I affirm the decision of the lower court.”