Hon. Effiom Etim Okon & Ors. In The Court Of Appeal Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the National and State House of Assembly Election Petition Tribunal sitting at Calabar, Cross River State contained in the Ruling delivered on 15th July, 2011 dismissing Election Petition No. EPT/CR/SA/8/2011 filed by the Appellants as a result of the declaration by the 3rd Respondent on 27th April, 2011 that the election it conducted on 26th April, 2011 was won by the 1st Respondent.

By the said petition filed on 17th May, 2011, the Appellant as petitioners had sought the following:

“(a) A declaration that the election into the House of Assembly for Akpabuyo State Constituency held on 26th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act, 2011 (as amended)

(b) A declaration that the election into the House of Assembly for Akpabuyo State Constituency held on 26th April, 2011 is null and void.

(c) An order that a fresh election be conduct into Akpabuyo State Constituency.

(d) A declaration that the 1st Respondent was not qualified to contest election into the House of Assembly for Akpabuyo State Constituency.”

The petitioners based their petition on the following two grounds as in paragraphs 24 and 25 of the petition:

“24. The election was invalid by reason of non compliance with the provisions of Electoral Act 2011 (as amended).

25. The 1st Respondent was at the time of the election not qualified to contest the election.”

Upon service of the Petition, the 1st Respondent, after filing a Memorandum of Appearance on 25th May, 2011, filed a Preliminary Objection on 1st June, 2011. The 2nd and 3rd Respondents, who filed their memorandum of Conditional Appearance on 3rd June, 2011 also filed Preliminary Objection on 16th June, 2011 but filed a Reply to the petition, in the alternative. The 4th Respondent filed a Reply on 22nd June, 2011. Meanwhile on 6th June 2011, the Petitioners had filed a motion on notice for the order for issuance of Pre-hearing Notice, and another motion on, 13th June, 2011 for leave to move the motion of 6th June, 2011

The 1st Respondent had sought the order dismissing or striking out the petition on the basis that the petition was incompetent having not disclosed any reasonable cause of action. The 1st Respondent challenged the jurisdiction of the tribunal to entertain the issues raised in the petition which bordered on the administrative action of INEC carried out as an agency of the Federal Government. The issue of locus standi of the Petitioners also came under attack by the 1st Respondent on the basis that the 1st Petitioner had agreed that the 2nd Petitioner did not sponsor him for the election.

The objection by the 2nd and 3rd Respondents was that the grounds which the Petition was based are not recognized under Sections 138 139 of Electoral Act 2010 (as amended). These Respondent also challenged the competence of the Tribunal to decide matters relating to National and/or state boundary delineation upon which the petition was based in respect of which the Tribunal racked jurisdiction, and could therefore not grant the reliefs sought therein.

In the Reply filed on 22nd June 2011, the 4th Respondent averred inter alia that the Tribunal lacked jurisdiction to entertain the petition since the same had been predicated on boundary adjustment and pre-election actions of the 4th Respondent. The 4th Respondent averred also that she would move the Tribunal at the pre-hearing conference to strike out the petition for incompetent and lacking in merit.

The Tribunal delivered its ruling in respect of the 1st Respondent’s objection on 15th July, 2011 and upheld the same and thereby dismissed the petition. The Tribunal held that the 1st petitioner lacked the locus standi to file and pursue the petition. It was also held that the Tribunal lacked jurisdiction to adjudicate on the petition.

The petitioners (now called the Appellants) expressed their dissatisfaction with the ruling of the Tribunal by filing the Notice of Appeal on 3rd August, 2011 and raised four grounds of appeal from which they formulated four issues for determination in their Brief of Argument settled by their learned counsel, William Ballantyne Esq. and filed on 19th August, 2011. The four issues are stated as follows:

“(a) Whether having regard to the timelines constitutionally provided for the disposal of election petitions, the striking out of the appellants’ petition by the trial Tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).

(b) Whether the Petitioners can challenge the validity of the nomination of the 1st Respondent to contest the election into Akpabuyo Constituency held on 26th April, 2011.

(c) Whether elections into the Akpabuyo State Constituency held on 26th April, 2011 were conducted in a lawfully delineated geographical territory.

(d) Whether the appellant was given fair hearing by the Tribunal.”

The 1st Respondent raised a Preliminary Objection to the through the Motion on Notice filed on 24th August, 2011. The 1st Respondent however in the alternative formulated three issues for hearing based on the Appellants’ grounds of appeal:

1. Whether the lower Tribunal was right when it heard arguments on the Preliminary Objection of the 1st Respondent and proceeded to determine same at the pre-hearing stage.
2. Whether considering the provisions of the extant laws and judicial authorities, the lower Tribunal was not right when it declined jurisdiction over pre-election matters bothering on nomination of candidates by political parties.
3. Whether delineation of geographical territories for the purpose of elections fails within the jurisdiction of Election Tribunals as contemplated by Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the grounds for election petitions as contemplated by Section 133 and 138 of the Electoral Act 2011 (as amended).”

The 2nd and 3rd Respondents’ Brief was prepared by Kunle Akinpelu Esq. and filed on 1st September, 2011. At pages 6 to 7 of the brief, the following issues were formulated for determination:

1. Considering the issues raised in the Petition as a whole whether the Election Tribunal was right to decline jurisdiction to adjudicate on the Petition and therefore dismiss same at the pre-hearing stage on the strength of the Preliminary Objection.
2. Having regards to paragraphs 18-22 of the petition, whether Election Tribunal was right to have held that the 1st Petitioner/Appellant not being a member of the same political party as the 1st Respondent is precluded from raising issues pertaining to pre-election matters of the party.
3. Whether the Election Tribunal rightly ruled that the Petitioners’ allegation of unlawful delineation of constituency against the 3rd Respondent disclosed no cause of action within the provision of the Electoral Act, 2010 (as amended).
4. Whether the Tribunal rightly held that the word “purportedly” used in paragraph 2 of the petition creates doubt on the status of the petitioner in the election therefore, the petitioner lacks locus standi to file the petition.

The 4th Respondent filed its Brief of Argument on 26th August 2011 as endorsed by Chief Ogar Ndoma Egodo, Esq. and where issues for determination were formulated as follows:

(a) Whether the jurisdiction of court being a threshold issue and crucial, can be raised at any stage and in any manner whatsoever.

(b) Whether the Petitioners/Appellants not being members of the 4th Respondent can challenge the validity of the 1st Respondents nomination by the said 4th Respondent to contest the election into Akpabuyo State Constituency held on 26/4/2011.

(c) The Petitioner/Appellants having participated in the pre-trial conference sessions resulting in the ruling dismissing this petition that gave, birth to this appeal can be heard to complain about fair hearing.

(d) Whether the issue of delineation geographical boundaries between Akpabuyo and Bakasi Local Government Areas are not outside the jurisdiction of the lower Tribunal.

At the hearing of this appeal on 7th September 2011, the learned counsel for each of the parties adopted and relied upon the respective briefs of argument. The learned counsel for the Appellants urged that the appeal be allowed while the learned counsel for each of the Respondents urged this court to dismiss the appeal.

The objection of the 1st Respondent is that the order granted by the Tribunal upon the motion filed by the Appellants on 6th June, 2011 is a nullity and liable to be set aside because as at the time of the application, pleadings had not closed. The 1st Respondent has further contended that non-compliance with paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended) renders the proceedings by the Tribunal a nullity and robs this court of jurisdiction to determine this appeal; that the petition has been abandoned for non-compliance with the provision of paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended); and the condition precedent to this court having jurisdiction has not been fulfilled.

What the record of appeal shows is that although the Appellants as Petitioners applied to the Tribunal for leave to move motion for pre-hearing Notice and for issuance of pre-hearing Notice as in Form TF008 via a motion on notice filed on 6th June 2011, the 1st Respondent had indeed on 1st June, 2011 filed a Notice of Preliminary Objection seeking an order dismissing or striking out the petition. Also on 9th June, 2011, the 1st Respondent filed another motion for enlargement of time to file the 1st Respondent’s Reply. The 1st Respondent completed all formalities for pre-hearing session which commenced on 4th July 2011. At the sitting of 12th July 2011, the 1st Respondent’s team of counsel was led by Mrs. N. A. Ewa, Senior Advocate of Nigeria who argued the Preliminary Objection and ruling was delivered on 15th July, 2011.

The 1st Respondent apart from completing pre-hearing forms and participating at the proceedings got the biggest benefit thereof. The 1st Respondent, who did not complain at the Tribunal, must be seen to have waived his right to complain. See Ariori vs. Elemo (1983) 14 NSCC 1; Food and Farms Ltd. vs. NNPC (2009) 12 NWLR (Pt.1155) 387. It must be stated also that the Court of Appeal can only exercise the powers donated or granted under its enabling statute which are the Constitution of the Federal Republic of Nigeria, 1999 as well as the Court of Appeal Act, 2004. The only means recognized by those statutes by which an aggrieved person may vent his grievance in the Court of Appeal is by way of an appeal against the decision of a lower court. See Akpan vs. Bob (2010) 17 NWLR (Pt.1223) 421. Such a party may also file a Respondent’s Notice. The 1st Respondent has not filed any appeal in this case.

The objection of the 1st Respondent is not sustainable and it is accordingly overruled.

Jurisdiction is no doubt fundamental and radical in adjudication. It is indeed the basis for exercise of powers by the courts and the judges. A court cannot exercise judicial powers or authority without jurisdiction as such exercise will be futile no matter how welt conducted the proceedings might otherwise have been. See Attorney General, Anambra vs. Attorney General of the Federation (1993) 6 NWLR (pt.302) 692; D.E.N.R. Ltd. vs. Trans Int’l Bank Ltd; being pivotal, and threshold, the issue of jurisdiction can be raised at any stage of the proceedings and when so raised it must be determined first before other issues; see Tukur vs. Government of Gongola State (1989) 4 NWLR (pt.117) 517; F.R.N. vs. Ifegwu (2003) 15 NWLR (Pt.842) 113; Olaniyi vs. Aroyehun & Ors. (1991) 5 NWLR (Pt.194) 652.

It is the law that in the determination of jurisdiction of the court, the process considered is the pleadings of the plaintiff which in the instant case is the Petitioner’s Election Petition. It is the case of the plaintiff that shows whether the court has jurisdiction. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Elebanjo vs. Dawodu (2006) 15 NWLR (pt.1001) 76.

The 2nd and 3rd issues formulated by the Appellants demonstrate beyond equivocation that the petition raised the issues of the validity of the nomination of the 1st Respondent to contest the election in dispute as well as the delineation of Constituency by the 3rd Respondent, both of which are clearly outside the preview or jurisdiction of the Election Tribunal.

The jurisdiction of the Election Tribunal as spelt out in Section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 covers only issues concerning validity of the election of a Respondent, it does not cover matters relating to, or predated on pre-election issues of nomination and constituency delineation which the Appellants placed before the Tribunal for adjudication. See P.D.P. vs. Onwe (2011) 4 NWLR (Pt. 1236) 166; Odedo vs. INEC (2008) 17 NWLR (Pt. 1117) 554:

The Tribunal was not expected to embark upon a futile exercise by adjudicating in the Appellant’s petition where it was clear that it had no jurisdiction to do so.

It cannot be said that the Appellants who were at the Tribunal and presented their case were denied a fair hearing under Section 36 (1) of the 1999 Constitution.

Consequently, I resolve the issues in this appeal against the appellant and the appeal is consequently dismissed.

I make no order as to costs.

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Other Citation: (2011)LCN/4828(CA)