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General Mohammed A. Garba (Rtd) V. Mustapha Sani Mohammed & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 5/6/2015 setting aside the judgment of the Federal High Court, Minna Division delivered on 25/3/2015 for want of jurisdiction and for its failure to consider and determine the preliminary objection challenging its jurisdiction. The Court below transferred the suit to the Niger State High Court for reassignment to another Judge for speedy hearing and determination.

The facts that gave rise to this appeal are as follows:

On 8th and 10th December 2014 the 2nd respondent, the All Progressives Congress (APC) conducted primary elections to select its candidate for the office of Senator representing Niger South Senatorial District in the general elections, which took place on 28/3/2014. The appellant, the 1strespondent and two other candidates contested the said primaries. The 1st respondent was declared the winner while the appellant came second. The 1st respondent’s name was submitted to the Independent National Electoral Commission (INEC) as the 2nd

respondent’s candidate for the said Senatorial District. The appellant was dissatisfied with the outcome and appealed to the Appeal Committee of the 2nd respondent. His contention was that the 1st respondent was not a member of the party, According to the appellant, the National Working Committee of the 2nd respondent (not the Appeals Committee) recommended that the 1st respondent be disqualified. The appellant was given Form CF001 and an INEC nomination form, which he completed and submitted to the Commission (3rd respondent). However, the 3rd respondent refused to substitute his name without a Court order compelling it to do so. Consequently, the plaintiff/appellant filed an originating summons at the Federal High Court, Minna, seeking various reliefs against the respondents on the ground that the 1st respondent was not a registered member of the 2nd respondent and therefore ought not to have been returned as the winner of the primary election held on 10/12/2014 and his name ought not to have been forwarded to INEC as the party’s candidate for the general election. He subsequently filed an amended originating summons with leave of Court.

Therein he

sought the determination of the following questions:

Whether having regard to the provisions of Articles 9, 9.1 to 9.4 of the All Progressives Congress (APC) Constitution and Paragraphs 3, 4 (A) and (B) of the All Progressives Congress (APC) 2014 Guidelines for the Nomination of Candidates for Public Office and Section 65 (2) (B) of the 1999 Constitution (as amended) the 1st defendant is not disqualified from participating in the 2nd defendant’s primary election for Niger South Senatorial District held on 10th of December 2014 and the general election slated for March 28, 2015 by reason of not being a registered member of the 2nd defendant.
Whether having regard to the provisions of Section 31 (5) & (6) of the Electoral Act 2010 (as amended) the 1st defendant is not disqualified from participating in the Niger South Senatorial Election 2015 having given false information as to his membership of the 2nd defendant in the affidavit, Form CF 001, he submitted to the Independent National Electoral Commission.
Whether having regard to the provisions of Section 87 of the Electoral Act 2010 (as amended) and Article 9 of the All Progressives

Congress constitution, the plaintiff is not the person entitled to have his name submitted to the Independent National Electoral Commission as the candidate of the 2nd Defendant in the Senatorial Election for Niger South Senatorial District 2015 having won the majority of the lawful votes cast in its primary election from the qualified aspirants.

In the event that the above questions were resolved in his favour, the appellant sought the following reliefs:

(a) A declaration that the 1st defendant is not a registered member of the 2nd defendant within the meaning of the 2nd defendant’s Constitution.

(b) A declaration that the 1st respondent was not qualified to have participated in the primary election of the 2nd defendant held on the 10th day of December 2014 for Niger South Senatorial District.

(c) A declaration that the plaintiff won the primary election of the 1st defendant held on the 10th day of December 2014 and the person entitled to have his name submitted to the Independent National Electoral Commission as the 2nd defendant’s candidate for Niger South Senatorial District in the March 2015 General Elections.

(d) A declaration

that the 3rd defendant, Independent National Electoral Commission is under a duty to receive the name of the plaintiff from the 2nd defendant as its candidate for Niger South Senatorial District in the general elections slated for March 2015.

(e) An order of the Court setting aside the submission of the name of the 1st defendant to the 3rd defendant as the 2nd defendant’s candidate for Niger South Senatorial District Niger State in the March 2015 elections.

(f) An order of Court disqualifying the 1st defendant for giving false information in his affidavit of personal particulars, Form CF 001 and mandating the 3rd defendant to substitute the name of the 1st defendant with that of the plaintiff as the 2nd defendant’s candidate for Niger South Senatorial District in the March 2015 general elections.

(g) An order of Court mandating the 3rd defendant, Independent National Electoral Commission to accept from the 2nd defendant the name of the plaintiff as its duly nominated candidate for Niger South Senatorial District in March 2015 general elections.

(h) An order of Court mandating the 2nd and 3rd defendants to substitute the name of the 1st

defendant with that of the plaintiff as 2nd defendant candidate for Niger South Senatorial District of Niger State in the March 2015 general elections.

(i) An order of Court deeming the name of the plaintiff as the name submitted by the 2nd defendant as its candidate for Niger South Senatorial District of Niger State in the March 2015 general elections.

(j) An order of perpetual injunction restraining the defendants from tampering or from dealing in any way with the candidature of the plaintiff except by according him with all the right and recognition as the candidate of the 2nd defendant for Niger South Senatorial District in the March 2015 elections.

(k) And for such further or other orders as the Court may deem fit to make in the circumstances of this case.

Upon being served with the originating summons the 1st respondent filed a counter affidavit and written address in opposition. He also filed preliminary objections on the 4th and 19th March 2015 challenging the appellant’s suit and the Court’s jurisdiction to entertain it. Affidavits, counter affidavits and written addresses were filed and exchanged by the parties in respect of the

preliminary objections. All the processes were subsequently consolidated and heard along with the amended originating summons. The 1st respondent withdrew the preliminary objection filed on 4th March 2015 and the counter affidavit filed on 9/3/15. They were accordingly struck out. After the adoption of the written addresses in respect of the preliminary objection filed on 19/3/2015, the learned trial Judge, on 25/3/2015 entered judgment in favour of the appellant and dismissed the 1st respondent’s preliminary objection.

Being dissatisfied with the decision, the 1st respondent filed a notice of appeal the same day, 25/3/2015 along with an application for stay of execution. He also filed additional grounds of appeal on 7/4/15 and a further notice of appeal on 28/4/2015. He filed a third notice of appeal on 5/5/2015, all within time. The final notice of appeal is contained in the supplementary record of appeal at pages 857 to 869 of Volume II of the record.

The 1st respondent’s application for stay of execution came up on 15th April 2015. The Court below granted an interim order preventing the 3rd respondent from issuing a Certificate of Return to the

appellant. On 30/4/15, it granted an interlocutory order against the 3rd respondent in similar terms. The parties subsequently exchanged briefs of argument and adopted them. Judgment was delivered by the Lower Court on 5/6/15 wherein it dismissed all the grounds of the 1st respondent’s preliminary objection and allowed the appeal on grounds of lack of jurisdiction.

The appellant was thoroughly aggrieved by this decision and has accordingly further appealed to this Court by a notice of appeal filed on 8/6/15. The appellant filed another notice of appeal on 16/7/2015. This appeal is predicated on the notice of appeal filed on 16/7/2015, the earlier notice having been abandoned in the appellant’s brief.

In compliance with the rules of this Court, both parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 5/4/2016, CHIEF ROBERT CLARKE, SAN, leading Chris Osuagwu, Esq. and U. B. Eyo Esq., adopted and relied on the appellant’s brief dated and filed on 31/7/2015 and the appellant’s reply brief filed on 2/11/15. He urged the Court to allow the appeal. He relied on the list of additional authorities filed on 3/3/16

and made some submissions in oral adumbration of the brief. S. I. AMEH, SAN, learned senior counsel for the respondent leading several juniors, to wit: Messrs Gavers C. Ihematulam, R. O. Adakole, D. M. Idoko, R. O. Mohammed (Miss), A. O. Nwankwere (Miss), R. M. Donglong, Miss A. Saidu and Mrs. N. Igyuse adopted and relied on the 1st respondent’s brief filed on 28/10/15 and urged the Court to dismiss the appeal. He also made some oral submissions in further adumbration of his brief. The oral submissions of both learned counsel will be considered where appropriate in the course of this judgment. The 2nd and 3rd respondents did not file any briefs in this appeal.

The appellant formulated three issues for the determination of this appeal thus:

Was the Court of Appeal right in dismissing all the grounds of the Appellant’s Notice of Preliminary Objection as lacking in merit
Was the Court of Appeal right in setting aside the judgment of the trial Court wherein it assumed jurisdiction to hear the suit and granted the reliefs sought by the Appellant
Was the Court of Appeal right when it resolved Issue No. 1 in favour of the 1st respondent

for the reason that the trial Court did not consider the 1st respondent’s preliminary objection

The 1st respondent distilled the following issues, which are substantially similar to the appellant’s issues:

Whether the Court of Appeal rightly dismissed the appellant’s notice of preliminary objection as lacking in merit
Whether the Court of Appeal was wrong in setting aside the Judgment of the trial Court on the ground that the trial Court lacked jurisdiction to entertain the suit.
Whether the Court of Appeal was right when it resolved in favour of the 1st respondent Issue No. 1 presented by him in his appellant’s brief of argument for the reason that the trial Court did not consider the 1st respondent’s preliminary objection.

As the issues formulated by both parties are substantially the same, I shall adopt the appellant’s issues in the resolution of the appeal.

Issue 1

Was the Court of Appeal right in dismissing all the grounds in the Appellant’s Notice of Preliminary Objection as lacking in merit.

CHRIS OSUAGWU, ESQ., who settled the appellant’s brief submitted that the appellant’s preliminary objection, which

contains 10 grounds, could be compartmentalized into two, namely; abuse of Court process and absence of jurisdiction by the Court below to entertain and determine reliefs (b) and (c) contained in the notice of appeal dated 4/5/2015 and filed on 5/5/2015. He noted that the preliminary objection was supported by an 11-Paragraph affidavit with two exhibits attached thereto. Exhibit A being a letter from the 3rd respondent, INEC, stating that it had complied with the judgment of the trial Court and Exhibit B being Form EC8E1 (Form for declaration of result for the election into the office of Senator for Niger South Senatorial District) with the name of the appellant as the winner of the election. He referred to reliefs (b) and (c) as contained in the notice of appeal seeking the following reliefs:

(b) To set aside the judgment of the Federal High Court Minna Judicial Division delivered on the 25th March 2015 in Suit no. HC/MN/2015 and any other action whatsoever done by the respondents pursuant to the judgment; and

(c) To consequently order the return of the appellant as the winner of the Niger South Senatorial District Election conducted on

28/3/2015.

Learned counsel submitted, relying on several authorities, including Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Onuorah v. Kaduna Refining & Petrochemical Co. Ltd. (2005) 6 NWLR (Pt. 921) 393 @ 407 F; Okorocha v. P.D.P. (2014) 7 NWLR (Pt. 1406) 213 @ 221; (2014) 1-2 SC (Pt. 1) 82, that in so far as it is the plaintiff’s claim as endorsed on the originating process that determines the jurisdiction of the Court, by the very nature of the reliefs sought, the Court ought to have been put on its guard that the subject matter of the appeal was not within its jurisdiction. He referred to Section 141 of the Electoral Act 2010, as amended which provides that “an election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”, and relied on the cases of: C.P.C. v. Ombugadu (2013) 344 WRN 1 @ 50; Eligwe v. Okpokiri (2015) 2 NWLR (Pt. 1443) 348 @ 373-374, in support of the position that the Court below lacked jurisdiction to entertain the 1st respondent’s appeal. He posited further that the reliefs

sought in the notice of appeal were also not available to him having regard to the combined provisions of Sections 68 (1) (c) and 75 (1) of the Electoral Act 2010, as amended, which provide (a) that the decision of a returning officer on any question arising from or relating to proceedings under the Act in relation to the declaration of scores of candidates and the return of a candidate are final and subject to review only by a Tribunal or Court in an election petition proceeding under the Act; and (b) that INEC shall issue a certificate of return to a successful candidate within 7 days or in the event of a decision of the Court of Appeal or Supreme Court as the final appellate Court nullifying the certificate of return of any candidate, the Commission shall issue the successful candidate with a valid certificate of return within 48 hours of the order, Relying on the authorities of Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431 @ 459; and Yar’Adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123 @ 175-177, he submitted that the aforesaid reliefs do not vest the Lower Court with jurisdiction and ought to have been struck out. He submitted that the appeal emanated from a

pre-election dispute filed at the Federal High Court and not an election Tribunal. He rejected the finding of the Court below that the 1st respondent’s complaints were not within the ambit of a preliminary objection.

It is the appellant’s further contention that the notice of appeal filed on 5/5/2015 amounted to an abuse of Court process because the 1st respondent herein, as appellant, sought to overreach the present appellant having obtained interim and interlocutory reliefs based on an earlier notice of appeal and also on the ground that the order of Court directing the parties to file their respective briefs of argument was predicated on the notice of appeal and additional grounds of appeal existing on 30/4/2015. On abuse of Court process, he relied on: The Vessel “St. Roland” v. Osinloye (1997) 4 NWLR (Pt. 500) 387 @ 392; Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 74-25. He argued that the Court ought not to permit a party to utilise a process to gain substantial advantage over his opponent and later turn round to deny the process. He contended that the 1st respondent was estopped from abandoning the first notice of appeal with which he

obtained both interim and interlocutory orders of injunction respectively. He contended that the original notice of appeal was incompetent and therefore it is not possible to place something on nothing and expect it to stand.

In reply to the submissions of learned counsel for the appellant, S. I. Ameh, SAN observed that the notice of preliminary objection does not challenge the competence of the appellant’s (now 1st respondent’s) appeal. He categorized the grounds of the objection into three:

(a) Since the order made by the Honourable Court on 30th April 2015 for filing briefs was predicated on the Notice and Grounds of Appeal and Notice of Additional Grounds of Appeal existing at the time, the subsequently filed notice of appeal dated 4th May 2015 is an abuse of Court process.

(b) Reliefs (b) and (c) contained in the notice of appeal dated April 2015 but filed on 5th May 2015 are not grantable by the Court; and

Learned senior counsel submitted that based on these grounds, the preliminary objection was incompetent ab initio having regard to Order 10 Rule 1 of the Court of Appeal Rules 2011,

which requires that a preliminary objection must challenge the competence of the appeal or must be against the hearing thereof. He referred to Conoil Plc. v. Vitol SA (2012) 2 NWLR (Pt. 1283) 50 @ 70 G-H, 71 A-C. He submitted that the procedure adopted by the appellant in failing to incorporate arguments in respect of the objection in his brief but supporting the application instead with an affidavit and exhibits, which did not form part of the record of the trial Court, is contrary to the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011, and the Lower Court ought to have struck it out on this ground alone. He agreed with the Court below that grounds 2 and 3 of the objection are mere statements and argued that even if taken along with grounds 1 and 4, the objections are misconceived and without merit. He submitted that in so far as the order to file briefs was not predicated on a specific notice of appeal, the appellant’s argument in respect of the issue is grossly misconceived and should be dismissed. Learned counsel submitted further, with regard to the several notices of appeal filed, that the appellant was within his right to file any number

of notices of appeal as long as they were filed within the three months prescribed by Section 25 (2) (a) of the Court of Appeal Act. He referred to: Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90 @ 115 F-G, 116 D-H & 154-155; Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710; Registered Trustees of AMORC v. Awoniyi (1994) 7 NWLR (Pt. 355) 154. He noted that the only stricture is that where there is more than one notice of appeal, the appellant must choose one upon which his brief of argument must be predicated. See: Tukur v. Uba (supra) at 113 F-H, 154 D. He noted that the appellant duly stated in his brief of argument that it was predicated on the notice of appeal filed on 5/5/2015. He therefore maintained that there was no abuse of Court process in the circumstance.

With regard to grounds 5, 6, 7 and 9 of the preliminary objection, he submitted that the Court below was right when it held that the objections go to the merit of the substantive appeal particularly as regards the consequential order to be made in the event that the appeal succeeds. He submitted that to hold otherwise would entail the Court below determining issues in the substantive appeal at an

interlocutory stage, which it cannot do. He referred to several authorities including: Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) @ 230-231 H-A; N.N.P.C. v. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1155) 462 @ 496-497.

He submitted that the authorities of C.P.C. v. Omugadu (supra) and Eligwe v. Okpokiri (supra) cannot avail the appellant as it was never decided in those cases that the provisions of Section 141 of the Electoral Act could be employed to refuse reliefs in an appeal at an interlocutory stage. He argued further that the instant appeal arose from the decision of the Federal High Court in a pre-election matter and is therefore a continuation of the case at the trial Court. He also contended, relying of the decisions of this Court in Gwede v. INEC (2014) 18 NWLR (Pt. 1433) 394 @ 422-423; and Jev v. Iyortom (unreported) in Appeal No. SC.164/2012 delivered on 27th February 2015 that Section 141 of the Electoral Act is inapplicable to pre-election matters in the Federal High Court or an appeal therefrom.

Learned counsel observed further that in relation to grounds 5, 6, 7, 8 and 9 of the preliminary objection, the appellant alluded to

facts in Paragraphs 3 to 9 of his supporting affidavit and Exhibits A and B attached thereto, which were neither part of the record of appeal transmitted to the Lower Court nor of the trial Court. He argued that the averments and exhibits amount to fresh evidence, which could only be adduced with the leave of Court, which leave was not obtained. He argued that the Court below was right to have discountenanced the said paragraphs and Exhibits A and B attached thereto.

He submitted that ground 10 is misconceived as the relevant provision of the Court of Appeal Rules 2011 is Order 18 Rule 6 (a), which stipulates a maximum of thirty pages for an appellant’s brief of argument. He submitted that the Court of Appeal (Fast Track) Practice Directions 2014 relied upon by learned counsel for the appellant is inapplicable, as this case is outside the scope of “fast track appeals” to which the Practice Directions apply. He contended further that the length of a brief of argument is not an issue within the contemplation of Order 10 Rule 1 of the Court of Appeal Rules 2011, not being a challenge to the competence of the appeal. He urged the Court to resolve this issue

against the appellant.

In reply on points of law, the appellant maintained that the issue in contention is whether, having filed an incompetent notice of appeal dated 25/3/2015, the 1st respondent could validly file a subsequent notice of appeal after the competence of the earlier notice of appeal had been challenged and the fact that the said alleged incompetent notice of appeal was the basis for the interim and interlocutory orders restraining the 3rd respondent from issuing a certificate of return to the appellant, Relying of the authority of Jev v. Iyortom (supra) learned counsel submitted that there is nothing in Order 10 Rule 1 of the Court of Appeal Rules 2011 that precludes the appellant from filing his notice of preliminary objection separately so long as he gives the prescribed three days’ notice. He submitted that where there is the need to rely on facts in support of the preliminary objection, the party objecting must file an affidavit. He cited the case of: Okonkwo v. UBA Plc. (2011) 6-7 SC (Pt. 1) 165. He submitted that having joined issues with the appellant on the preliminary objection the appellant (now 1st respondent) was not taken by

surprise and it is too late to complain.

The purpose of filing a preliminary objection is to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. See: General Electric Co. v. Harry Akande (2010) 18 NWLR (Pt. 1225) 596 @ 625 D-E; NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt. 1328) 148 @ 185-186 F-B. A preliminary objection is only filed against the hearing of an appeal. Where, for example, there is an objection against some grounds of appeal but there are other grounds that can sustain the appeal, a preliminary objection would not be the appropriate procedure to adopt in the circumstances.

Where the subject matter of the appeal is within the jurisdiction of the appellate Court, the Court’s jurisdiction will not be ousted simply because it lacks jurisdiction to grant some of the reliefs claimed.

The grounds of objection as contained at pages 922-923 of Volume 2 of the record are as follows:

The Notice of Appeal dated 4th of May 2015 but filed on the 5th of May 2015 is an abuse of Court process.
The Honourable Cold made an order on the 30th of April 2015 for the filing of Briefs of Argument.

The appellant was given 5 days while the respondents were given 6 days upon the service of the appellant’s brief on them.

The appellant abandoned the Notices of Appeal upon which Briefs were ordered by the Court and argued another Notice filed subsequent to the order of Court.
That prayers b and c contained in the said Notice of Appeal dated 4th April 2015 but filed on 5th May 2015 are not grantable by the Court.
The appellant did not take part in all the stages of the election conducted on the 28th of March 2015.
It is the 1st respondent that participated in the election of 28th March 2015 and was declared as the winner of the Senatorial Election for Niger South Senatorial district of Niger State.
By Section 141 of the Electoral Act 2010 (as amended) the Court is precluded from declaring any person who has not taken part in all the stages of an election as the winner of the election.
The appellant cannot therefore be returned as the winner of the election into the Office of Senator for Niger South Senatorial District held on the 28th of March 2015.
The appellant’s Brief of Argument exceeded pages 25

contrary to Paragraph 8 (2) (b) of the Court of Appeal (fast track) Practice Directions 2014.

The notice of preliminary objection was supported by an 11-Paragraph affidavit and two exhibits. The appellant in the Court below (now 1st respondent) filed a counter affidavit and further counter affidavit to the preliminary objection while the 1st respondent (now appellant) filed two further affidavits in support of the objection.

The Court below, rightly in my view, held that grounds 2 and 3 of the grounds of objection are mere statements and not grounds, as they were not stated to be particulars supporting ground 1. The said grounds were accordingly struck out and rightly so. With regard to ground 1, the Court below held as follows:

“An abuse of Court process entails the use of multiplicity of process to annoy the opposing party. This is not the case here. The judgment of the trial Court was delivered on the 25th of March, 2015 and the party aggrieved had three months to file a notice of appeal. He can file more than one notice of appeal within the three months period allowed. He must however choose only one notice of appeal and predicate his brief

upon it. See Section 25 (2) of the Court of Appeal Rules 2004 and Hassan v. Tukur (2013) 4 NWLR (Pt. 1343) 90, 113, 154 and Bilante Ltd. v. NDIC (2011) 15 NWLR (Pt. 1270) 470. The notice of appeal under fire was filed on the 5th of May 2015, within the three months period allowed. The appellant also specifically stated that his brief of argument is “predicated for the avoidance of any doubt, on the last notice of appeal filed on 5/5/2015.” He did not leave the respondents or this Court in any doubt as to what notice of appeal was used the file the appellants brief. In that vein, the 1st respondent was not deceived, taken by surprise or prejudiced in any way. The 1st respondent is expected to respond by filing the respondent’s brief on the appellant’s brief which was clearly based on the notice of appeal filed on the 5/5/05 within time. He is not expected to file a respondent’s brief based on a notice of appeal. There is no abuse of Court process whatsoever and the ground is dismissed.”

A careful examination of the arguments in support of ground 1 of the preliminary objection at pages 936 to 937 of Volume 2 of the record show that the contention of the 1st

respondent before the Lower Court was that the order made on 30th April, 2015 directing parties to file their briefs of argument was predicated on the existing notices of appeal. Furthermore that having obtained certain reliefs from the Court based on the earlier notices of appeal filed, the subsequent notice of appeal filed on 5th May 2015 was an abuse of the Court process and should be struck out. He also argued before the Lower Court that the second notice of appeal filed on 28th April 2015 was filed to overreach an objection raised to the competence of the first notice of appeal filed on 25th March 2015 upon which an interim order of injunction was predicated. The same argument has been advanced before this Court. I am of the considered view that since what was being challenged before the Lower Court by way of preliminary objection was not the validity of the orders obtained, the Lower Court was correct when it followed the decision of this Court in Tukur v. Uba & Ors. (2013) 4 NWLR (Pt. 1343) 90 @ 115-116 H-D, which in turn cited with approval the case of Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39 to the effect that as long as each

of the notices of appeal was filed within the time prescribed by the Court of Appeal Rules and the appellant had specifically indicated the particular notice of appeal upon which his brief of argument was based or had formally withdrawn the ones he no longer intends to proceed with, there was no abuse of Court process. The ground was rightly dismissed. I also agree with the Court below, with regard to ground 4 that the court did not and could not have ordered the filing of briefs predicated upon a particular notice of appeal, as the appellant, as has been shown above, is at liberty to choose which of several notices of appeal filed within time he intends to base his brief of argument on.

On grounds 5, 6, 7, 8 and 9 the Court below held as follows at page 1107 of the record:

“Ground 5 of the Notice of Preliminary Objection states that prayers (b) and (c) contained in the notice of appeal filed on 5/5/15 are not grantable by the Court. This is not within the ambit of a preliminary objection. A preliminary objection is aimed at preventing the Court from hearing the appeal itself or for the Court to declare it incompetent. Objection to the grant of

prayer or relief goes to the merit of the appeal itself as it must succeed before the issue of granting the prayers would arise. Ground 5 is therefore without merit and is dismissed. Grounds 6, 7, 8 and 9 of the notice of preliminary objection all pertain and go to support ground 5. They are also without merit and are dismissed.”

It must be reiterated again that the object of a preliminary objection is to challenge the competence of an appeal or the hearing thereof. In other words, its purpose, if successful is to terminate the appeal at that stage. I am in full accord with the Lower Court that whether or not the reliefs sought by the appellant could be granted would only arise after the appeal has been heard and determined on its merit and succeeds.

Finally, on ground 10 of the objection, the Court below held that Paragraph 8 (2) (b) of the Court of Appeal (Fast Track) Practice Direction 2014 has not limited the filing of briefs in pre-election appeals to 25 pages and therefore the objection on the ground that the appellant’s brief exceeded 25 pages was misconceived and consequently struck it out. Beyond this finding of the Court below, which I

fully endorse, I must observe, as pointed out by learned counsel for the 1st respondent that the Court of Appeal (Fast Track) Practice Direction 2014 does not apply to pre-election appeals. It applies to debt appeals and appeals pertaining to corruption, human trafficking, kidnapping, money laundering, rape and terrorism. See Section 1 thereof. Furthermore an objection to the number of pages contained in a brief of argument can never be an issue touching on the competence of the appeal itself. I therefore hold that the notice of preliminary objection was rightly dismissed. This issue is accordingly resolved against the appellant.

Issue 2

Was the Court of Appeal right in setting aside the judgment of the trial Court wherein it assumed jurisdiction to hear the suit and granted the reliefs sought by the appellant.

In support of this issue, learned counsel for the appellant submitted that the appellant’s case before the trial Court was predicated upon the refusal of the 3rd respondent (INEC) to accept the appellant’s nomination as the 2nd respondent’s candidate for the Niger South Senatorial District for the March 15th general election. He submitted

that the purpose of the appellant’s suit at the trial Court was to compel INEC to accept the nomination made by the 2nd respondent upon the 1st respondent’s disqualification. He referred to Paragraphs 20, 21, 22, 23 and 24 of the affidavit in support of the Amended Originating Summons, which read as follows:

“20. That I was surprised when the 3rd Defendant published Form CF 001 of the 1st defendant as the candidate of the 2nd defendant for Niger South Senatorial District election state (sic: slated) for 28th of March 2015 instead of my Form CF 001, affidavit of personal particulars. A copy of the Form CF 001 is hereto attached as Exhibit J.

That upon enquiries from our party, I was informed by the National Deputy Organizing Secretary of our party that the Independent National Electoral Commission, INEC, refused to substitute the name of the 1st defendant.
That the National Secretary of our party has approach (sic) the Independent National Electoral Commission for the substitution of the 1st defendant’s name with my name but the INEC insisted that it can only do that if ordered by the Court.
That I know the Independent National

Electoral Commission, INEC, is the body responsible for non inclusion of my name in the list of candidates nominated for the election into the office of Senator for Niger South Senatorial District of Niger State in the general election slated for March 2015.

That unless this Court mandates the Independent National Electoral Commission to receive my name from the 2nd defendant and substitute the name of the 1st defendant, it will not include my name in the list of nominated candidates for the elation.”

He reproduced all the reliefs sought in the amended originating summons, particularly reliefs (d) – (f), (g), (h) and (i) (reproduced earlier in the judgment) and submitted that the principles in the case of: Kakih v. P.D.P. (2014) 15 NWLR (Pt. 1430) 374 @ 413-415 were erroneously applied to this case by the Court below. He submitted that apart from the absence of any claim against INEC and the West African Examinations Council (WAEC), the relief sought in Kakih’s case did not flow from the state of the pleadings i.e. the affidavit in support of the Originating Summons. He submitted further that INEC and WAEC were needlessly made parties to the suit

in Kakih’s case (supra). He noted that at page 1118 Volume II of the record, the Court below held that reliefs (a), (b) and (c) in the amended originating summons are directed at the appellant and 2nd respondent, who are neither the Federal Government nor any of its agencies and that reliefs (d) – (k) are ancillary reliefs whose fate depends on the success of issues (a) – (c). He is of the view that the approach of the Lower Court in this regard is technical. He submitted that reliefs (d), (f), (g), (h) and (i) are specific principal reliefs against INEC that can stand alone and that Kakih’s case is not on all fours with the instant case. He submitted that every case is an authority for the issues it decides and that the principle in Kakih’s case (supra) cannot be dragged, willy nilly from one case to another. He cited Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 107) 250 @ 266 B; Digyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347 @ 391 A.

Learned counsel argued further that Section 87 (9) of the Electoral Act 2010, as amended expressly confers jurisdiction on the Federal High Court with respect to complaints arising from pre-election matters, He

contended that Section 87 (9) of the Electoral Act (as amended) is an additional jurisdiction to the original jurisdiction created by Section 251 of the 1999 Constitution. He referred to the introductory portion of Section 251, which stales, inter alia: “notwithstanding anything to the contrary contained in this Constitution, and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly…” In support of his contention that this case falls within the purview of Section 87 (9) of the Electoral Act, he referred to the following recent decisions of this Court: Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 @ 66: Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394 @ 427 A-B; Jev v. Iyortom (2014) 14 NWLR (Pt. 1428) 575 @ 610-613; P.D.P. v. INEC (2014) 17 NWLR (Pt. 1437) 525 @ 558; Eligwe v. Okokiri (2015) 2 NWLR (Pt. 1443) 348 @ 373-324, and urged the Court to hold that the Federal High Court had jurisdiction to entertain the suit.

In reply to the above submissions, learned senior counsel for the 1st respondent submitted that in order to determine whether a Court has jurisdiction to entertain a cause or matter, it is the

plaintiff’s claim that must be examined. He referred to: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 @ 549 B, Mogaji v. Matari (2000) 8 NWLR (Pt. 670) 722 @ 735 F – G & 736 C; Onuorah v. K.R.P.C. (2005) 6 NWLR (Pt. 921) 393 @ 404 E – F, 407 F- H & 408 B – C.Learned senior counsel set out the reliefs as contained in the amended originating summons and submitted that the jurisdiction of the trial Court is as conferred on it by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and strictly limited to the matters enumerated in Section 251 (1) thereof. He submitted that for the Federal High Court to exercise jurisdiction in any cause or matter, both the parties and subject matter must come within the confines of the jurisdiction of the Court. He placed further reliance on Tukur v. Government of Gongola State (supra). He submitted that reliefs (a), (b) and (c) represent the principal reliefs claimed around which all other reliefs must revolve and observed that the said reliefs are seeking to set aside or challenge the validity of certain actions of the 1st and 2nd respondents. He noted that the Court below was

of the same opinion. He submitted that while the Federal High Court has jurisdiction to entertain matters challenging the validity of certain actions, not all actions fall under its jurisdiction. He argued that only matters which principally challenge the validity or otherwise of executive and or administrative actions of the Federal Government and or its agencies are covered. He submitted that in such matters the Federal High Court has jurisdiction to the exclusion of all other Courts. He referred to NEPA v. Edegbero (2002) 16 NWLR (Pt. 798) 79 @ 95 B F & 97 E – G; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85.

He noted that in the reliefs claimed, the 1st defendant (now 1st respondent) is a natural person while the 2nd defendant (now 2nd respondent) is a political party and that neither is an agency of the Federal Government. He submitted that having regard to the fact that it is the validity of the actions of these persons that is in issue in reliefs (a), (b) and (c), the Federal High Court is not the appropriate venue to ventilate their grievances. He contended that although the 3rd respondent, INEC, is an agency of the Federal Government,

reliefs (d), (9) and (h) of the amended originating summons are at best ancillary reliefs. He submitted that the success of these reliefs, including reliefs (e), (f), (i) and (k) depend on the success of reliefs (a), (b) and (c). He argued that if reliefs (a), (b) and (c) fail, the other reliefs fail with them. He referred tor Uba v. Etiaba (2010) 10 NWLR (Pt. 1202) 343 @ 393 D – E; Nwaogwugwu v. President, FRN (2007) 6 NWLR (Pt. 1030) 237 @ 275 D.

He submitted that where the Court has jurisdiction over ancillary reliefs and not the principal reliefs, it cannot exercise jurisdiction over the matter. He submitted that conversely, where a Court has jurisdiction over the principal reliefs it can rightly exercise jurisdiction over a matter even though the ancillary reliefs therein do not fall within its jurisdictional scope. He referred tor Tukur v. Government of Gongola State (supra) at 549 A – D; PDP v. Sylva (supra). He contended that in the circumstances of this case, the presence of the 3rd respondent would not confer jurisdiction on the trial Court.

On the reference to the introductory part of Section 251 (1) of the 1999 Constitution and

whether by virtue thereof the Federal High Court can assume jurisdiction based on Sections 31 (5) and 87 (9) of the Electoral Act 2010 (as amended), S. I Ameh, SAN submitted that the provision, which commences with the phrase “Notwithstanding anything to the contrary contained in the Constitution…”, means that the National Assembly cannot use the power given to it under Section 252 of the Constitution to vest jurisdiction which would derogate from the jurisdiction vested in the Federal High Court by virtue of Section 251 (1) thereof. On the meaning and implication of the word “notwithstanding” when used in the Constitution, he referred to: NDIC v. Okem Enterprises (2004) 10 NWLR (Pt. 880) 107 @ 182-183. He argued further that in view of the provisions of Section 251 (1) of the Constitution, the provisions of Section 31 (5) and 87 (9) of the Electoral Act, which, inter alia, used the words “… apply to the Federal High Court or State High Court for redress” cannot be interpreted to mean that an aggrieved person can choose to approach any of those Courts as he wishes. In his view the provisions must be interpreted to mean that such person must take his

grievance to that Court, from among those mentioned, that has jurisdiction having regard to the parties and the subject matter of the claim. He posited that where the principal relief sought by the aggrieved party is against the Federal Government or any of its agencies, in a dispute arising from the conduct of party primaries, the Federal High Court would be the proper forum for the aggrieved party to ventilate his grievance. He contended that where the principal relief is against the political party and any other individual, as is in the instant case, the State High Court would be the proper Court envisaged under Section 87 (9) of the Electoral Act for the appellant to have approached. He quoted in extenso the dictum of Galadima, JSC in Kakih v. P.D.P. (supra) at 413-415 H – C; and per Rhodes-Vivour, JSC at 431-433 F – E. He maintained that, contrary to the contention of learned senior counsel for the appellant, the decisions of this Court in Kakih’s case (supra) and PDP v. Sylva (supra) are applicable to the facts of this case and represent the current position of the law on the scope of the jurisdiction vested in the trial Court under Sections 31 (5) and

87 (9) of the Electoral Act. He submitted that this Court’s decisions in Eligwe v. Okpokiri (2015) 2 NWLR (Pt. 1443) 348 and Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 cited and relied upon by learned senior counsel for the appellant have not tampered with the present state of the law on the issue, but rather complement it.

In Paragraphs 5.2.21 to 5.2.29, learned senior counsel made submissions regarding the appellant’s alleged failure to exhaust the remedies provided by the party’s Constitution and electoral guidelines before instituting his suit at the trial Court and contended that failure to fulfill conditions precedent before seeking to invoke the Court’s jurisdiction deprived the Court of jurisdiction to entertain the suit.

In reply on points of law, learned senior counsel for the appellant submitted that the right of access to Court is a Constitutional right, which cannot be excluded by any other law or instrument. He submitted further that the provisions of Section 87 (9) of the Electoral Act expressly confer on any aspirant who complains that any of the provisions of the Act and guidelines of a political party has not been complied with in

the selection and nomination of a candidate of a political party for election the right to apply to the Federal High Court or the High Court of a State for redress. He urged the Court to discountenance the submission. He maintained that all the appellant’s reliefs are within the ambit of Sections 31 (5) and 87 (9) of the Electoral Act 2010, (as amended)

. He referred to: Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 @ 120.

In his oral submissions at the hearing of this appeal, Chief Clarke, SAN argued that the crux of this appeal is different from the facts in Kakih’s case, which the Lower Court relied upon. He submitted that recent decisions of this Court are to the effect that where there is a claim under Section 87 (9) of the Electoral Act, both the Federal High Court and the State High Court have jurisdiction. He referred to the following additional authorities: Senator Heineken Lokpobiri v. Hon. Foster Ogola & 2 Ors. (unreported) in Appeal No. SC.443/2015 delivered on 2/11/2015 at pages 22-23 of the Certified Copy of the judgment made available to the Court and Obasi Uba Ekagbara & Anor. v. Chief Dr. Okezie Ikpeazu & 2 Ors. (unreported) in

Appeal No. SC.504/2015 delivered on 22/1/2016 (CTC also supplied).

In reply to the oral submissions, I. S. Ameh, SAN submitted that the position of the law at the time the Lower Court gave its decision was as in Kakih’s case and that the Lower Court came to the right decision that the Federal High Court lacked jurisdiction to entertain the suit.

There is no doubt that the issue of jurisdiction is fundamental to adjudication. It is the blood that gives life to the Court and enables it exercise its powers as conferred by the law establishing it. Without jurisdiction the proceedings and any decision reached therein is null and void ab initio. See: Kalio v. Daniel (1975) 2 SC 15; A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Oloriode v. Oyebi (1984) 1 SCNLR 390; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. This underscores the importance of the issue under consideration. It is especially important in a pre-election or post-election matter where not only the litigants but also the electorate are affected by the outcome of the dispute and it is desirable that the case be determined with dispatch.

It is pertinent to note that the Courts

are creations of statute. They derive their powers and jurisdiction either under the Constitution, which is the supreme, organic and fundamental law and grundnorm of this country or under specific statutes. See: Adetayo & Ors. v. Ademola & Ors (2010) 15 NWLR (Pt. 1215) 169; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251; Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22; Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) 411. The Court’s jurisdiction may also be limited or extended by statute. For a suit to be competent the plaintiffs claims must fall within the jurisdiction conferred on the Court by the relevant statute. See: S.P.D.C. v. Anaro (2015) 12 NWLR (Pt. 1472) 123; Umanah v. Attah (2007) ALL FWLR (Pt. 346) 402 @ 432 C-D; (2007) 17 NWLR (Pt. 1009) 503.

Section 251 (1) of the 1999 Constitution provides, inter alia:

“251.(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters…”

The

section goes on to set out in Sub-paragraphs (a) to (r) the matters in respect of which such exclusive jurisdiction is conferred.

Sub-paragraph (1) (s) provides:

“(1).(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.”

Also relevant to the present discourse are Sections 31 (5) and 87 (9) of the Electoral Act 2010 (as amended). They are reproduced below:

“31.(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may file a suit at the Federal High Court, the High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

87.(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the

High Court of a State or FCT for redress.”

The first issue to consider is whether the introductory part of Section 251 (1) of the 1999 Constitution (as amended) forecloses the right of the National Assembly to exercise its powers to make laws by extending the jurisdiction of the Federal High Court or any other superior Court of record. The introductory part of the section is in two parts: (i) Notwithstanding anything to the contrary contained in this Constitution; (ii) and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly. My understanding of the provision is that (i) any contrary provision within the Constitution will not override the exclusive jurisdiction conferred on the Federal High Court in respect of the matters listed in Sub-paragraphs (a) to (r). (ii) Secondly, the National Assembly is also given powers to expand the jurisdiction of the Court. Such expanded jurisdiction could be exclusive or exercised concurrently with the State High Courts and the High Court of the Federal Capital Territory (FCT). See Section 251 (1) (s) above. Pursuant to the powers conferred on it by Section 251 (1) (s) of

the Constitution, the National Assembly enacted the Electoral Act 2010, as amended, which conferred concurrent jurisdiction in pre-election matters on the Federal High Court and the High Courts of the States and the High Court of the Federal Capital Territory. In the case of Lokpobiri v. Ogola (supra) this Court per Onnoghen, JSC, considered the provisions of Sections 31 (5) and 87 (9) of the Electoral Act and explained the rationale for the concurrent jurisdiction of the Courts as follows:

“It is not in doubt that the intention of the National Assembly in enacting the said Act is clearly to confer concurrent jurisdiction on the Federal High Court and State and Federal Capital Territory High Courts in pre-election matters, so as to enlarge the range of choice of courts available to an aggrieved party to ventilate his grievance.”

In Ekagbara & Anor. v. Ikpeazu & Ors. (unreported) (supra) at pages 24-25 of the CTC of the judgment, Muntaka-Coomassie, JSC, in similar vein, stated thus:

”By this provision [introductory part of Section 251 (1) of the Constitution], the National Assembly may extend, expand or enlarge the jurisdiction of the

Federal High Court to adjudicate over any matter not listed in Section 251 of the Constitution of the Federal Republic of Nigeria as amended. Hence to limit the jurisdiction of the Federal High Court to matters listed in Section 251 of the Constitution alone is erroneous. The National Assembly may by its Act confer additional jurisdiction on the Federal High Court to adjudicate or matters not listed in Section 251 of the Constitution. This power is derived from the Constitution itself.”

It is evident from the above that the fact that the Federal High Court is conferred with exclusive jurisdiction in respect of the matters listed in Section 251 (1) (a) – (r) does not prelude that Court from exercising other jurisdiction concurrently with the High Court of the Federal Capital Territory or the High Court of a State where such jurisdiction is conferred on it by an Act of the National Assembly, exercising its powers under Section 251 (1) (s) of the Constitution.

In Lokpobiri v. Ogola (supra), a distinction was made between the exclusive jurisdiction of the Federal High Court, or any other Court, and the concurrent jurisdiction of the Court. His Lordship

Onnoghen, JSC said at page 18 (supra):

“Whereas the exclusive jurisdiction of a Court is peculiar to it, a concurrent jurisdiction is common to two or more Courts. The word ‘Concurrent’ is defined by Webster’s New Twentieth Century Dictionary, Unabridged 2nd ed. page 379, inter alia as “(1) … 5 In law, having equal jurisdiction or authority.” To me, it is erroneous to say that for the Federal High Court to entertain a pre-election matter, the main relief(s) must be shown to fall within the exclusive jurisdiction of the Court because both jurisdictions are different. In a concurrent jurisdiction, if Court A has jurisdiction to hear all the reliefs claimed, it necessarily follows that Court B must have the same jurisdiction otherwise it means giving something to someone with one hand and taking it away with the other.

It is settled law that election and election related matters are sui generis and that the jurisdiction to hear and determine then is statutory just as the rights and obligations connected therewith or arising therefrom. It is in that respect that the principles of common law may not be appropriate in election and related matters.

… In terms of election or election related matters, the jurisdiction of the Federal High Court to hear and entertain such matters is rooted in the relevant provisions of the Electoral Act 2010, as amended, earlier reproduced in this judgment. … If we insist on the jurisdiction of the Federal High Court on pre-election and post-election matters being exercisable only where the main claim(s) is/are within the exclusive jurisdiction of the Federal High Court, it will result in injustice on the litigants which is clearly not the intention of the legislature. It is therefore very clear that the concurrent jurisdiction conferred on the Federal High Court to hear and determine pre-election and even post-election matter is clearly outside the exclusive jurisdiction of the Court under Section 251 of the 1999 Constitution as amended but in addition to the exclusive jurisdiction and consequently subject to different considerations.”

His Lordship stated further at page 20 (supra);

“It is therefore my considered opinion that when the Federal High Court’s pre election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the

provisions of the Electoral Act 2010, as amended, not under the provisions of Section 251 of the 1999 Constitution, as amended. In fact INEC may be a nominal party or be liable to an ancillary claim in a pre-election or past-election jurisdiction of the Federal High Court.”

In reaching the above conclusions, reliance was placed on earlier decisions of this Court in: Jev v. Iyortom (2014) 14 NWLR (Pt. 1428) 575 @ 611-613, 626- 627, 630 & 631-632; Gbileye v. Addingi (2014) 16 NWLR (Pt. 1433) 394 @ 418-419, 424-425, 427-428 & 431-432.

In Gbileye v. Addingi (supra) at 431-432 C-G, I expressed the following opinion:

“… It is important to observe that Section 87 (9) of the Electoral Act fully takes care of the situation that arises in this case.

Section 87 (9) of the Electoral Act provides:

“87.(9) Notwithstanding the provisions of this Act or the rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High

Court of a State for redress.”

In the instant case, the 1st respondent’s complaint was non-compliance with the provisions of the Electoral Act, specifically Section 87 (4) (c) (ii) thereof. By the provisions of Section 87 (9) of the Act, she was entitled, being an aspirant, to seek redress either at the Federal High Court or the High Court of the State. The suit was therefore properly instituted before the Federal High Court sitting at Makurdi.”

A careful perusal of the claims endorsed in the amended originating summons, reproduced earlier in this judgment shows clearly that the plaintiff’s claims were centred around the contention that the 2nd respondent failed to follow its guidelines in the conduct of the primary election by allowing someone who is not a member of the party to participate and an allegation that the information contained in the 1st respondent’s Form CF001 submitted to the 3rd respondent contained false information. The complaints bring the claim squarely within the provisions of Sections 31 (5) and 87 (9) of the Electoral Act 2010, as amended, which confer concurrent jurisdiction on the Federal High Court, High Court of a State or

High Court of the FCT. The argument as to whether the Federal High Court has jurisdiction to entertain the suit on the ground that the so-called principal reliefs are not directed at the Federal Government or any of its agencies, in light of the reasoning above, does not hold water, as there is no such qualification in Section 31 (5) and 87 (9) of the Electoral Act. See: Jev & Anor. v. Iyortom (supra) at 612-613 E-A per Okoro, JSC.

Furthermore, in Lokpobiri v. Ogola (supra) this Court considered its decision in Kakih’s case (supra) and reasoned thus at pages 22-23 of the CTC of the judgment:

“Having regard to … the sui generic nature of an election or election related matter and the jurisdiction of the Courts to entertain them, which are special statutory jurisdiction, the fact that the Federal High Court by operation of Section 251 (4) of the 1999 Constitution is also clothed with jurisdiction to entertain post election matters whose claims or reliefs may not necessarily involve/affect the Federal Government or any of its agencies, it is clear that the intention of the legislature in conferring the additional jurisdiction on the Federal High

Court in relation to pre-election and post-election matters is clearly that the additional Jurisdiction is to be exercised by the Court in accordance with the Electoral Act 2010, as amended, creating the jurisdiction as well as Section 251 (4) of the 1999 Constitution. It is therefor clear that Kakih’s case as regards the issue of the jurisdiction of the Federal High Court in pre-election matters is limited to its peculiar facts and circumstances having regard to the decision in Jev v. Iyortom supra.

The effect of all that has been said is that by virtue of Section 251 (1) (s) of the 1999 Constitution and Sections 31 (5) and 87 (9) of the Electoral Act, 2010 made pursuant thereto, the Federal High Court had the requisite jurisdiction to entertain the action. This issue is accordingly resolved in favour of the appellant.

Issue 3

Was the Court of Appeal right when it resolved issue No, 1 in favour of the 1st respondent for the reason that the trial Court did not consider the 1st respondent’s preliminary objection

In respect of this issue, it is the contention of learned counsel for the appellant that the finding of the Court below that

the trial Court failed to consider the preliminary objection of the 1st respondent in arriving at its decision is erroneous. Relying on the provisions of Order 29 Rule 1 of the Federal High Court Civil Procedure Rules 2009, he submitted that in the resolution of the jurisdictional issue raised by the 1strespondent, the Court was at liberty to consolidate all the processes filed by the parties and hear them along with the substantive suit and deliver its judgment thereon. He referred to pages 1 and 2 of the judgment of the trial Court at pages 646-647 of Volume 1 of the record, wherein the trial Court referred to the 1st respondent’s preliminary objection and the grounds upon which it was predicated, which reference was repeated at page 14 of the judgment. He argued that the preliminary objection filed on 9th March 2015, which was subsequently withdrawn and the one filed on 19th March 2015 have the same substratum. He submitted that judgment writing style differs from one judge to another. That each judge is free to adopt his own style as long as the judgment or ruling reflects a proper evaluation of the evidence adduced by either side. He contended that the

judgment of the trial Court is not perverse, as there was sufficient evidence before the Court to justify the conclusion reached and that the 1st respondent was not denied fair hearing. He also submitted that it is not every mistake or slip in the course of writing a judgment that would lead to the judgment being overturned on appeal. He is of the view that if issue 2 is resolved in the appellants favour, this issue would become otiose.

In response to this issue, learned counsel for the 1st respondent tried to put the submissions of learned counsel for the appellant in con of what transpired at the trial Court. He referred to pages 641-642 of Volume 1 of the record of appeal and noted that on 19th March 2015, after the learned appellants counsel had adopted his arguments in respect of the amended originating summons, learned counsel for the 1st respondent sought to withdraw two preliminary objections filed on 4/3/15 and 9/3/15 respectively as well as the counter affidavit filed on 9/3/15 in response to the amended originating summons. The processes were accordingly struck out. He submitted that learned counsel for the 1st

respondent then argued his notice of preliminary objection filed on 19/3/2015 and also argued in opposition to the amended originating summons by adopting his written addresses in respect of both processes. He conceded that having regard to the provisions of Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules (supra) the Court was at liberty to consolidate and hear the processes together. He submitted that where the Court has heard a preliminary objection challenging its jurisdiction along with a substantive suit, it is enjoined to first rule on the preliminary objection one way or the other before considering the merits of the substantive suit. He referred to: C.B.N. v. Auto Import Export (2013) 2 NWLR (Pt. 1337) 80 @ 125; A.N.P.P. v. The Returning Officer, Abia South Senatorial District (2005) 6 NWLR (Pt. 920) 140 @ 171. He argued that even where suits are consolidated and heard together they do not lose their individual identity and separate decisions must be given in respect Of each suit. He referred to: Diab v. Nasir Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC 1 @ 10; Kutse v. Bakfur (1994) 4 NWLR (Pt. 337) 196 @ 197; Uba v. Etiaba

(2008) 6 NWLR (Pt. 1082) 154.

Learned counsel referred to the first page of the judgment of the trial Court at page 646 of Volume 1 of the record where the learned trial Judge, erroneously referred to the 1st respondents notice of preliminary objection filed on 9/3/2015, which had already been withdrawn and struck out on 19/3/2015. He submitted that not only did the learned trial Judge refer to the wrong process, there was no other place in the judgment where any of the grounds of the preliminary objection was considered. He reproduced the grounds of objection as contained in the notice of objection filed on 19/3/2015 and submitted that the grounds raise substantial issues of jurisdiction that ought to have been disposed of before delving into the merit of the amended originating summons. On the need for the Court to consider and resolve all the issue submitted by the parties he cited several authorities including: Okonji & Ors. v. Njokanma & Ors. (1999) 14 NWLR (Pt.638) 250 @ 270 E-F: Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299 @ 310 – 311 H – A. He submitted that the learned trial Judge not only failed to discharge his

duty in this regard, but also at the conclusion of the Judgment held that “the plaintiff’s case succeeds while the 1st defendant’s preliminary objection fails.” He submitted that failure to consider the 1st respondent’s preliminary objection was not a mistake or mere slip but constitutes a grave violation of his right to fair hearing and a grave miscarriage of justice. He submitted that the Lower Court was right when it agreed with this position and held that the entire proceedings were vitiated in the circumstance. He urged this Court to resolve this issue against the appellant.

The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. Failure to consider all issues would amount to a denial of fair hearing where the parties have not been heard. The rationale for this, as held by this Court in Okonji v. Njokanma (1999) 14 NWLR (Pt.638) 250 @ 270 E – F, is that a judgment of a Court of record must demonstrate a dispassionate consideration of all issues canvassed by the parties and in turn

show the result of such exercise. See also: A.G. Leventis Nig. Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) 416: Odetayo v. Bamidele (2007) 17 NWLR (Pt. 1062) 77; Kotoye v. CBN (1989) 1 NWLR (98) 419.

Where a preliminary objection challenging the Court’s jurisdiction is heard along with the substantive suit or application, the Court must give a ruling on the objection before proceeding to determine the substantive suit.

In the instant case, the trial Court committed its first error by referring to the notice of preliminary objection filed on 9/3/15, which it had already struck out. Secondly, beyond a brief reference to the preliminary objection in the introductory part of the judgment, there was no other reference to the preliminary objection throughout the judgment until the concluding part where the Court declared that the preliminary objection had failed. The Lower Court had this to say on this unfortunate state of affairs:

“In the instant case, the trial Court at the beginning of its judgment referred to the notice of preliminary objection that it had struck out and its grounds. It then proceeded to determine the merit of the originating summons

and at the tail end of its judgment without giving any modicum of consideration to the preliminary objection in the body of the judgment, concluded as follows:

‘The plaintiff case succeeds while 1st defendants preliminary objection fails.’

We agree with 1st and 2nd respondents (sic) counsel that judgment writing is an art and that each judge is entitled to his own style but as was stated in the case of OJOGBUE v. NNUBIA (1972) ALL NLR (2) 226, 231-232

”A judgment of the Court must demonstrate a full dispassionate consideration of the issues properly raised and heard and must reflect the results of such exercise.”

It is not entirely correct as stated by 2nd respondents counsel that the grounds of the preliminary objection and the crux of appellants case are the same. The grounds of the preliminary objection as to subject matter jurisdiction of the trial Court under Section 251 of the Constitution of Nigeria 1999 and the non-justifiability of the matter were not part of the appellant’s case in the substantive suit. Merely setting out the preliminary objection at the beginning of the judgment does not amount

to a consideration and determination of it.

The failure of the trial judge to address the preliminary objection of the appellant as highlighted above in our view is not a matter of style but a fundamental error or vice as it amounted to a breach of the appellants right to fair hearing. It is a denial of fair hearing for a Court to fail or refuse to consider an issue properly raised before it. See ANYANWU v. OGUNEWE (2014) 8 NWLR (Pt. 1410) 437, 460.It therefore resulted in a miscarriage of justice and vitiates the proceedings. We can only say what Coker, JSC stated in OJOGBUE v. NNUBIA supra 232:

‘…we cannot allow it to stand.’

We answer issue 1 in the negative and resolve it in favour of the appellant.”

I fully endorse the finding of the Court below in this regard.The failure of the learned trial Judge to consider the preliminary objection filed on 19/3/2015, which was the extant process before it before resolving the issues in the substantive amended originating summons occasioned a grave miscarriage of justice.The failure tainted the entire proceedings and rendered same a nullity. This issue

is accordingly resolved against the appellant.

In conclusion therefore, the appeal succeeds in part. Having resolved issue 2 in the appellant’s favour I hold that the Federal High Court has the requisite jurisdiction to entertain the appellant’s claims. That part of the judgment of the Court of Appeal, Abuja Division delivered on 5/6/2015 a owing the appeal, setting aside the judgment of the trial Court on the basis that the Federal High Court lacked jurisdiction to entertain the suit and ordering the transfer of the suit to the High Court of Niger State is hereby set aside. However, having upheld the decision of the Court below on the failure of the trial Court to consider and determine the 1st respondent’s preliminary objection to the suit, and declaring the entire proceedings therein, including the Judgment delivered on 25/3/2015 a nullity, the appropriate order to make in the circumstance is to order that the case be remitted back to the Federal High Court for expeditious hearing before another Judge of that Court.

The parties shall bear their respective costs in the appeal.

Appeal succeeds in part.

SC.377/2015

General Mohammed A. Garba (Rtd) V. Mustapha Sani Mohammed & Ors (2016) LLJR-SC

General Mohammed A. Garba (Rtd) V. Mustapha Sani Mohammed & Ors (2016)

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