Mr. Ibibiama F. G. Odom & Ors V. The Peoples Democratic Party & 2 Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal sitting at Port Harcourt delivered on the 12th February, 2013. The facts of the case that brought about the appeal are immediately stated below.

The appellants took out a writ on the 25th January, 2011 at the Port Harcourt Division of the Rivers State High Court against the respondents seeking certain declaratory and injunctive reliefs. Their case as pleaded and supported by evidence is that the appellants and the 2nd respondent were aspirants for the 1st respondent’s primary election for the Bonny/Degema Federal Constituency seat. The primary election took place on 6th January 2011 at the Degema Local Government Council Headquarters. Using the appropriate list of and the delegates, on being accredited, voted. Ballot papers of each of the aspirants having been sorted out were placed in separate baskets. The counting which immediately commenced was disrupted. The election was terminated. Neither the result nor the winner of the election was declared.

On the other hand, respondents’ case is that with the votes counted and the 2nd respondent declared the winner, the primary election was conclusive.

At the end of trial, the court held that on the pleadings, the law places the burden of proof on the appellants. Having not discharged the burden, the court dismissed appellants’ case. Aggrieved, they appealed to Court of Appeal, hereinafter referred to as the Lower Court, sitting at Port Harcourt on a notice filed on the 18th August 2011 containing six grounds. The appellants urged the Lower Court inter-alia for an order setting aside the trial court’s judgment and the purported result of 1st respondent’s 6th January 2011 primary election which declared the 2nd respondent winner and candidate of the 1st respondent for the Bonny/Degema Federal Constituency April 2011 general election.

In its judgment delivered on 12/2/2013, having reversed the trial court’s finding on whom the burden of proof on the pleadings of the parties rested, the Lower Court evaluated the evidence on record and on concluding that the findings of the trial judge are perverse, set aside his judgment. Even though the court allowed the appeal, it all the same refused the appellants two of their reliefs: the return of the first appellant as the winner of the 1st respondent’s primary election and candidate for the April 2011 election on the ground that the primary election was not conclusive and the injunctive order to restrain 1st respondent from submitting 2nd respondent’s name as its candidate the general election having already been conducted.

Dissatisfied with the decision, the appellants have further appealed to this Court on a notice consisting of two grounds notice filed on 3rd May 2013 urging this Court to set-aside the Lower Court’s decision and “order a fresh primary election of the 1st respondent for the Rivers State Bonny/Degema Federal Constituency, and another general election.”

At the hearing of the appeal, the appellants and the 1st and 3rd respondents’ briefs that had earlier been filed and exchanged, were adopted by their respective counsel as their arguments for and against the appeal. The 2nd respondent did not file any brief in answer to appellants’ arguments. Rather, learned 2nd respondent counsel adopted and relied on their brief of argument in support of the preliminary objection appellants’ brief in response to which preliminary objection latter’s counsel adopted and relied upon as well.

It is incumbent to consider 2nd respondent’s preliminary objection to the competence of the appeal first. It was filed on 2/9/2014.

The fundamental nature of jurisdiction in the adjudication process can never be over-emphasized. A court that proceeds with a matter in respect of which it lacks jurisdiction wastes everybody’s time since the proceedings, no matter how well conducted, will come to naught. See Aladegbemi V. Fasanmade (1988) 3 NWLR (Pt 81) 129 and Alao V. Akano (1988) 1 NWLR (Pt 71) 431.

The 2nd respondent/objector has distilled a single issue for the determination of the objection. The issue reads:-

“Whether in the peculiar circumstances of this case this Honourable Court has the jurisdiction to entertain the Appellants/Cross Respondents/Respondents appeal.”

In arguing their objection, learned counsel submits that the appeal is incompetent. Not being a new suit but a continuation of the original suit at the court of trial, an appeal involves a review of the decision of a Lower Court by a higher one. The instant appeal, it is contended, must not only be a continuation of the case the appellants made at the Lower Court but a continuation of the very suit the appellants filed at the trial court. Appellants’ learned counsel submits, must be consistent in the presentation of their case and the reliefs they seek right through. This Court, it is argued, cannot go outside the issues raised and settled at the lower Court. Learned counsel relies on Orioro v. Osain (2012) ALL FWLR (Pt. 636) 437 at 451, Adeogun V. Fasogbon (2011) 1 NWLR (Pt. 1250) 427 at 454 and National Electric Power Authority V. Auwal (2011) 5 NWLR (Pt. 1241) 571.

In the instant appeal, learned 2nd respondent counsel further argues, the appellants are seeking totally new reliefs. Neither at the court of trial nor at the Lower Court did the appellants challenge the outcome of the general election wherein the 2nd respondent was returned the winner. The new reliefs have removed the subject matter of the appeal from the pre-election cause that was pursued at the two courts below to a post election matter thereby taking it away from the jurisdiction of this Court. By the combined operation of Section 285(1) of the 1999 Constitution as (amended) Section 140(2) and 68(1) of the Electoral No 6 of Act 2010 as (amended) only the Election Petition tribunal has jurisdiction over the reliefs the appellants now seek. This Court cannot grant them the reliefs. By their writ and statement of claim, appellants’ suit was commenced as an intra-party dispute. It cannot be transformed into an election petition on appeal. Appellants’ contention in paragraph 4.8 at page 8 of their brief that a fresh primary election be conducted and the winner thereof be ordered to be sworn in as the true occupant of the seat in the House of Representative since it is their party that won the election must have to be discountenanced. Learned counsel supports his submissions with Okorocha V. PDP (2014) 7 NWLR (Pt. 1406) 213, Akinbobola v. Plisson Fisko Nigeria Limited (1991) 1 NWLR (Pt. 167) 270, Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 422. Further relying on Emordi v. Igokwe (2011) ALL FWLR (Pt. 580) 1262 at 1270 – 1271, C.P.C. v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66 at 119 and Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431 at 469, learned counsel submits that even at that the court by virtue of Section 141 of the Electoral Act cannot grant the reliefs the appellants seek in this Court. In the premises learned counsel prays, the appeal which has become academic be struck out.