Ezenwo Nyesom Wike & Anor V. Samuel Rogers Ichenwo & Anor (1999)
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JAMES OGENYI OGEBE, J.C.A.
By a writ of summons, dated 6th day of May, 1999 and filed on the same date, the Respondent’ as Plaintiff, claimed in his particulars of claim as follows before the Federal High Court, holden at Port Harcourt:
“(a) A declaration that the Plaintiff’s the duly elected chairman of the Obio/Akpor local Government Area of Rivers State by reason of the election on 5th December, 1998 and which said election was confirmed by a unanimous decision of the Court of Appeal in Appeal No. CA/PH/EP/66/99 delivered on 17th March, 1999.
(b) Against both 1st and 2nd Defendants, an order that no bye-election of whatever type should hold in the Obio/Akpo, Local Government Council of Rivers State until the expiration of the tenure of the plaintiff or by operation of law
(c) Against the 2nd and 3rd Defendants an Order that the 2nd Defendant.
Ezenwo Nyesom Wike, should not parade himself as the candidate of the P.D.P. (3rd Defendant) as the Plaintiff (Rogers Ichenwo) was properly cleared and also won the said election.
(d) A perpetual injunction restraining the 3rd Defendant, (the P.D.P.) from sponsoring either the 2nd Defendant or any other person as candidate for the Obio/Akpor Local Government Council Chairman, as the Plaintiff was duly nominated and won the said election as Chairman of Obio/Akpor Local Government Council.”
On the 12th day of May, 1999 the 2nd and 3rd appellants filed a motion on notice challenging the jurisdiction of the Federal High Court on the ground that the subject matter of the claim was outside the jurisdiction of the Federal High Court as it related to election of a Local Government Chairman. The Federal High Court heard arguments on the motion from both sides and held that the motion was premature and it accordingly struck it out.
The substance of the ruling was that such an application could only be properly entertained when the parties had exchanged pleadings.
Dissatisfied with the decision, the appellant appealed to this court on three grounds of appeal. In accordance with the rules of court, the appellants formulated 2 issues for determination as follows:
“(1) Whether it was premature to determine the issue of jurisdiction in the circumstances of the present case, if not, whether the Federal High Court has jurisdiction to entertain the suit subject matter of this Appeal.(Original Ground I and the only Additional Ground of Appeal which is Ground 3).
(2) Whether the learned trial judge was right in the face of the decision of the decision of the Court of appeal in CA/PH/EP/65/99 Wike v. Ichenwo & Others, Exhibit PD1 before him to assume jurisdiction to entertain the suit, subject matter of this Appeal. (Ground 2 – Original Grounds of Appeal)” I must say straight away that the 2nd issue formulated by the appellant does not arise from a proper ground of appeal. This is because the ruling of the trial judge was completely silent on the judgment of the Court of Appeal No.CA/PH/EP/65/99 – Wike vs. Ichenwo & Ors. It follows that as the trial judge made no Pronouncement on the status of the judgment, a ground of appeal cannot emanate from it.
As was pointed out by Onu, JSC in the case of Ogunbinye v. Ishiola (1996) 6 NWLR (PT.452) 12 at page 22, a ground of appeal is not a proper ground if the issue from which it is predicated was never part of the decision of the lower Court. Consequently, I strike out the second issue.
The 1st respondent also filed a brief of argument and formulated one issue for determination as follows:
“The major issue that calls for determination in this appeal is whether the learned judge was correct in law, in that in the circumstances of the instant case the appellants’ Motion challenging the jurisdiction was premature.”The learned counsel for the 1st respondent then formulated what he called subsidiary issues as follows:
“(1) Whether the grounds of appeal challenging the jurisdiction of the learned Trial Judge, are competent, when the said issue was yet to be determined by the said court.
(2) If, and only of the answer to question (1) above is in the affirmative then on the available facts, does the Federal High Court have the jurisdiction to entertain the claims before it?”
The subsidiary issues certainly did not arise from any of the grounds of appeal. In fact the 1st subsidiary issues is an attempt to challenge the compliance of the grounds of appeal filed by the appellant.
It is trite law that issue for determination must of necessity arise from the grounds of appeal and if they do not so arise they are not proper issues and are liable to be struck out. See case of Ojo v. Babalola (1991) 4 NWLR (Pt.185) 267. I therefore strike out subsidiary issues 1 and 2 in the respondent’s brief.
On the issue 1 in the appellant’s brief, the main argument by the appellants’ counsel is that from the particulars of claim before the trial court, there was enough material for the trial court to decline jurisdiction as the claim was purely an electoral matter which was peculiarly covered by a Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998 (hereinafter called Decree No.36 of 1998), which gave no role to the Federal High Court. The learned counsel submitted that the question of jurisdiction can be raised before of after the filing of pleadings and if raised before the question of jurisdiction.
In reply the learned counsel for the 1st respondent submitted that the trial judge did not rule on jurisdiction but merely ruled that the application to strike out the suit for want of jurisdiction was premature as pleadings had not been exchanged. He relied on the following cases: A.G. of Kwara State & Ors v. Raimi Olawale (1993) NWLR (pt.272) Pg 645 and Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) Pg.517, determining whether a court has jurisdiction to entertain a suit, where the court itself is not incompetent as regards numbers and qualification of members of the bench constituting the bench, the court will usually examine the claim against the fundamental principle of law for the exercise of jurisdiction which include a requirement that-
(a) the subject matter of the case must be within the jurisdiction of the court and there must be no feature in the case which prevents the court from exercising jurisdiction; and
(b) the case has come before the court initiated by the process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (1962) 1 ANLR 587 at 595 and Shehu (1986) 1 NWLR (Pt.15) 198 at 218.
It is also trite law that the issue of jurisdiction is so fundamental that it can be raised at any stage of the proceedings in the lower court, the court of appeal, or in the Supreme Court and once it is raised it must be determined before the court can move forward with the case. See the following cases: Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; A.G. Bendel State v. Aldeyan (1984) 4 NWLR (Pt.118) 464; and Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136.
The claim before the trial court is already reproduced in this judgment. It is clear from the claim that what the respondent was trying to avoid was the bye-election into the chairmanship of Obio/Akpor Local Government of Rivers State which had been ordered by the court of appeal. It will appear that Appeal No. CA/PH/EP/66/99 and Appeal No.CA/PH/EP/65/99 which arose form the same Local Government Election were not consolidated and the court of appeal gave conflicting decisions. In CA/PH/EP/66/99 it would appear that the court confirmed the election of the respondent while in CA/PH/EP/65/99 the court of appeal ordered a bye-election but excluded the respondent from participating.
Be that as it may, all that the respondent was crying to do before the lower court was an attempt to review the electoral matters already decided.
A casual look at the claim will make it clear to any unbiased mind that the Federal High Court lacked jurisdiction.
Section 81(1) of Decree No.36 of 1998 which governs Local Government Elections vested Local Government Election Tribunal with exclusive jurisdiction to hear and determine any question whether-
(a) any person has been validly elected at an election under the Decree, or
(b) the term of office of any person has ceased.
The appellate jurisdiction from the tribunal lies to the Constitutional Court by virtue of section 86(1) of the Decree and in the absence of a Constitutional Court, court of Appeal was assigned the role. The Federal High Court has no role to play whatsoever in matters relating to Elections under the Decree.
The trial Judge was wrong in holding that it was premature to rule on whether or not he had jurisdiction. He was shirking his responsibility when he stated thus:
“Coming home to the matter at hand the issues raised in the particulars of claim are so loaded and contentious that this honourable court feels that it would be jumping the gun to shut the mouth of the plaintiff without having regard to the Statement of Claim
A court of law must not avoid its responsibility no matter how difficult or onerous it may be. In this case it was clear from the particulars of claim without more that the trial court lacked jurisdiction. It could not hide under the cloak that the particulars are so loaded and contentious that ruling on jurisdiction had to wait.
In the result, I allow this appeal and set aside the ruling of the trial court. In its place, it is ordered that the respondents claim before that court be struck out for want of jurisdiction. The appellant is entitled to N2,000.00 costs against first respondent
Other Citations: (1999)LCN/0626(CA)