Obasi Uba Ekagbara & Anor V. Chief Dr Okezie Ikpeazu & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.S.C.

The two plaintiffs, who are the appellants in this case prayed the Federal High Court in their amended originating summons for the following reliefs.

1. A Declaration that the 3rd defendants INEC FORM CF0O1, and TAX PAYMENT RECEIPTS and Tax Clearance Certificate of the 3rd defendant attached therewith submitted to the 2nd defendant by the 1st and 2nd defendants contain false information regarding the 3rd defendant’s Tax Payment.
2. A Declaration that having regard to the clear and unambiguous and sacrosanct provisions of Sections 31 (1) (2) (3) (5) (6) and (8) of the Electoral Act Cap 15 Laws of the Federation of Nigeria 2010 and INEC FORM CF00l and the Tax Payment receipts and Tax Clearance Certificate attached herewith submitted by the 1st and 3rd defendants to the 2nd defendant, the said 3rd defendant is disqualified from contesting the Abia State Governorship election for submitting to the 2nd defendant false information regarding his Tax Payment.
3. An Order that the 3rd defendant having failed and/or refused to pay his income Tax promptly as and when due for the years 2011, 2012

and 2013 and falsely stating in his INEC FORM CF001 and the documents attached therewith that he paid the said tax as and when due is not fit and proper person to contest the gubernatorial election.

4. An Order disqualifying the 3rd defendant from contesting the said 2015 Abia State gubernatorial election for submitting to the 2nd defendant in his INEC FORM CF001 and the documents attached therewith false information concerning his tax payment contrary to clear, unambiguous and sacrosanct provisions of Section 31 (5) of the Electoral Act 2010 (as amended).
5. An Order banning the 2nd defendant from accepting the 3rd defendant as a candidate to contest the Abia State 2015 gubernatorial election.
6. A Declaration that the aspirant as the 1st defendant primary election of 8th December 2014 who polled the second highest number of votes cast at the said primary election is the rightful candidate of the 1st defendant for the Abia State 2015 gubernatorial election.
7. An Order directing the 1st defendant to forward the name of the candidate as 1st defendant’s Abia State gubernatorial primary election of 8th December, 2014 who polled the

second highest number of vote cast at the said primary election to the 2nd defendant as the rightful candidate of the 1st defendant for the Abia State 2015 gubernatorial election.

8. And for such further or other Orders as the Honourable Court may deem fit or just to make in the circumstance of this case.

In respect to the appellants claims the 1st respondent filed a motion on Notice and sought the following Orders:-

“An Order transferring this matter from this honourable Court to the Chief Judge of Abia State High Court for assignment to a Judge of that Court for the purpose of hearing and determination of the issues raised in this matter because this Court has no jurisdiction”.

The grounds amongst others, on which this relief is sought are:-

i). “The cause of action originated in Abia State of Nigeria.

ii). The Court does not have jurisdiction to entertain any matter not contemplated, listed or enshrined under Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended.

iii). The question for determination and reliefs sought thereon do not fall within the ambit of Section 251 of the Constitution

of theFederal Republic of Nigeria 1999 as amended”.

After hearing the parties in a reserved ruling the trial Federal High Court Abuja dismissed the application. In its ruling the Court held as follows:-

“This Court has reviewed the arguments of counsel and perused the authorities cited and agrees with the submissions of the plaintiffs counsel (sic) that their case falls under Section 31 (5)of the Electoral Act 2010 as amended as regard alleged false statements in the affidavit of 3rd defendant. More importantly this cause of action is predicated on 3rd defendants INEC FORMCFOO1 and attachments, Exhibit A2 submitted to 2nd defendant INEC at Abuja.

The facts of this suit are clearly distinguishable from those in KAKIH v. P.D.P (supra). From the foregoing 3rd defendant’s motion on Notice dated 17/3/2OlS fails as is hereby dismissed with no order as to costs”. See pp 153 – 154.

The defendants, now respondents, were dissatisfied with the ruling and appealed to the Court of Appeal, Abuja Division, hereinafter called the Court below. The Court after hearing theparties allowed the appeal and set aside the decision of the trial

Federal High Court in the leading judgment delivered by his lordship Joseph E. Ekanem JCA. At pages 347 – 348 of the record of appeal, the Court below has this to say:-

“The principal claims are directed at the appellant who is not the Federal Government or its agency. There is no complaint in the affidavit about an administrative or executive action or decision of the INEC. The focus of the claims is not on the action or inaction of the 4th respondent as for example failure to publish particulars of a candidate or refusal to issue a copy of the particulars of a candidate. It is not also the duty of the 4th respondent to disqualify a candidate or bar him from contesting relief 5 which seek an injunctive order against the INEC is an ancillary relief because it is dependent on the success of reliefs 1 and 2. The trial Court therefore has no jurisdiction to adjudicate on the matter for the determination in the negative. The appeal has merit and it is allowed. I hereby set aside the ruling of the trial Court”.

The Court below consequently transferred the matter to High Court of Justice Abia State. The appellants were dissatisfied with the above

judgment and appealed to this Court on Notice of Appeal containing grounds of appeal. They are hereby produced without their particulars.

GROUND 1

The learned Justices of the Court of Appeal misdirected themselves in law in the interpretation and construction of Section (31) (5) of the Electoral Act, 2010 (as amended) and Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

GROUND 2

The learned Justices of the Court of Appeal misdirected themselves in law when they held:

“The principal claims are directed at the appellant who is not the Federal Government or its agency. There is no complaint in the affidavit about an administrative or executive action or decision of the INEC. The focus of the claims is not on the action or inaction of the 4th respondent as for example failure to punish particulars of candidate. It is not also the duty of the 4th respondent to disqualify a candidate or bar him from contesting. Relief No. 5 which seeks an injunctive order against the INEC is an ancillary relief because it is dependent on the success of reliefs 1 and 2. The trial Court therefore has no

jurisdiction to adjudicate on the matter.

GROUND 3

The learned Justices of the Court of Appeal erred in law when they held that the principal claims are directed at the appellant who is not the Federal Government or its agency.

GROUND 4

The learned Justices of the Court of Appeal erred in law when they misconstrued and misapplied the decision of the Supreme Court in the case of Kakih v. P.D.P (2014) 15 NWLR (1430) 374, 413 to the present case.

GROUND 5

The learned Justices of the Court of Appeal erred in law when they is interpreted the principal claims of the 1st and 2nd respondents/appellants by holing that the focus of the claim is not on the action or inaction of the 3rd respondent(the INEC)

GROUND 6

The learned Justices of the Court of Appeal misunderstood the case of the 1st & 2nd respondents/appellants when they held that it is not the duty of the 3rd respondent to disqualify a candidate or bar him from contesting.

In accordance with the Rules of this Court both parties filed and exchanged their respective brief of argument. The appellants filed joint brief of argument dated 14/9/2016 and distilled three

issues for determination of the appeal as follows:

1. “Whether the learned justices of the Court of Appeal were right in their interpretation, application and reliance on the decision of the Supreme Court in KAKIH v. P.D.P (2014) 15 NWLR (pt. 1430) 374 at 413 having regards to the state of pleadings, the reliefs sought by the appellants as well as the separate Provisions of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria 1999 (as amended). Distilled from grounds 1 and 4 of the Notice of Appeal.

2.Whether having regards to the state of pleadings and the reliefs sought by the appellants against the 3rd respondent (the INEC) the Court of Appeal was right in holding that the trial Court lacked jurisdiction (distilled from grounds 2, 3, and 5 of the Notice of Appeal).

3.Whether the learned Justices of the Court of Appeal rightly appreciated the case of the appellants against the 3rd respondent (distilled from ground 6 of the Notice of Appeal).

The 1st respondent in its brief of argument dated 22/9/15 formulated two issues for determination thus:-

a. Whether the Court of

Appeal was right when it held that Federal High Court under Section 31 (5) of the Electoral Actread together with Section 251 (1) (b) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) cannot exercisejurisdiction on the claims of the appellants in the Originating summons.

b. Whether the learned Justices of the Court of Appeal were right in transferring the suit to the High Court of Justice Abia State fordetermination of the substantive suit, based on the cause of action before the Court and the case of Kakih v. P.D.P (2014) 15 NWLR (pt. 1430) at 374.”

The second respondent distilled a sole issue for determination thus:-

“Was the Court of Appeal right to hold that the Federal High Court lacked jurisdiction”.

Whilst the 3rd respondent, in its brief of argument also formulated one issue determination as follows:-

“Whether or not the Court of Appeal was right in ordering a transfer of the case from the Federal High Court to the State HighCourt in view of the provisions of Section 251 (1) of the 1999 Constitution”.

It is worthy to note that the appellants also filed a reply brief to the 1st

respondent’s brief of argument. At the hearing on 29/11/2015 both parties adopted their respective briefs of arguments. The appellants in their joint brief of argument restated their reliefs in the originating summons and submitted that they were directed against all the respondents. That the claims were hinged on the submission of false information which could be instituted by any person under Section 31 (5) of the electoral Act as amended. It provides thus:-

“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, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false”.

Learned senior counsel for the appellants Izinyon, SAN distinguished the decision in case of Kakih v. P.D.P (2014) 15 NWLR (pt. 1430) 374 at 413 from the instant case. He reproduced reliefs sought in the Kakih V. P.D.P. (supra) and submitted that the reliefs are declaratory against the conduct

of primary election in which INEC was a mere observer. It was therefore submitted that the relief 5 against INEC (the 3rd respondent) cannot be said to be ancillary as without it the other reliefs are toothless bulldogs. He went further to submit that the cause of action in Kakih v. P.D.P (supra) arose from the conduct of parties primary election in which all the parties were participants and the reliefs sought were based on Section 87 of the Electoral Act 2010 as amended and that none of the reliefs were directed against any Federal Government agency. Counsel referred to Section 31 (5) of the Electoral Act 2010 (as amended) and submitted that it is a unique provision not tied to anybody who had participated in the primaries pursuant to Section 87 (9) and (10) of the Electoral Act 2010. It was therefore posited that under Section 31 (5) of the Electoral Act 2010 the information given that was envisaged is false information in the relevant form submitted to INEC a Federal Agency.

It was further contended that with relief 5 which is an injunctive relief against the 3rd respondent a Federal Government Agency, under Section 31 (5) of the Electoral Act 2010

it is clear that the Federal High Court has jurisdiction to entertain the matter. The case of Lado v. INEC (2007) 12 NWLR (pt. 1047) 119 and NDIC v. Okem Ent. LTD (2004) 10 NWLR (pt. 880) 107 were cited.

On the 2nd issue formulated by the appellants it was submitted that based on the claims of the appellants as contained in the amended originating summons, the 3rd respondent is a necessary party to this suit. In other to be bound by the result of the action, hence the question to be settled in the action must be one which cannot be effectually and completely settled unless and until he is a party. The case of Lajumoke v. Doherty (1969) NMLR p.281, Green v. Green (1987) 3 NWLR (pt. 61) p. 480, and Peenok Investment Ltd v. Hotel Presidential Ltd (1982) 12 S.C. page 1 were cited.

It was therefore submitted that the principal claims were based on the submission of the FORM CF001 and Tax receipts made to the 3rd respondent (INEC). It is therefore 3rd respondent to act upon the the duty of the submitted and Tax Clearance Certificates. The provision of Section 31 (5) and (6) of the Electoral Act 2010 (as amended) makes the process complete upon

submission of the said form to the 3rd respondent, and if the said information is found to be false by the Court and order of disqualification shall issue and the 3rd respondent directed to act on the Court order, hence the 3rd respondent must be a party to the suit, he cited the case of PWT (NIG) LTD V. J.B.O International(2009) 19 NWLR (pt. 1226) where Hon. Justice Mohammed agreed with the decision of Adekeye JSC and dismissed the appeal.

On the third (3) issue formulated, the learned counsel Izinyon, SAN, submitted that relief 5 was not a relief for the 3rd respondent to disqualify or bar the 1st respondent from contesting but to question the duty of the 3rd respondent in accepting the order taken by the 3rd respondent upon the receipt of FORM CF001 from the 1st respondent containing false information. This Court was therefore urged to allow the appeal.

The 1st respondent also reproduced the appellants’ claims and the provisions of Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and submitted that the cause of action is the non payment of the income Tax of the 1st respondent which is an issue which relates to the Income Tax law of

Abia State of Nigeria. This cannot be determined without the Court looking into the administration of Tax in Abia

State. Hence the jurisdiction of the Federal High Court under Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not accommodate matters relating to, or connected with or arising from personal income tax law of Abia State under which the Tax Clearance complained as false arose. Learned counsel again submitted that Section 31 of the Electoral Act 2010 (as amended) is to give room for any matter to either be accommodated under the jurisdiction of the Federal High Court or State High Court depending on the subject matter, the case of Kakih v. PDP (supra) was cited. It was therefore submitted that except the cause of action found or grounded in Section 251 of the Constitution 1999 (as amended) as one of the items listed therein, it cannot be accommodated by the Federal High Court. Thus the presentation of false or irregular Tax Clearance of Abia State Government is not an issue which can be either in Civil or Criminal proceedings to be litigated in the Federal High Court. All such matters

fall within the jurisdiction of the State High Court under Section 272 of the Constitution of the Federal Republic of Nigeria 1999 as amendable.

On issue no two (2) formulated by the learned counsel, the facts of the case of Kakih v. PDP (supra) were restated and submitted that no principal claim was made against INEC who is a Federal Government Agency as it is in the present case. Learned counsel referred to Section 31 (5) of the Electoral Act 2010 (as amended) and submitted that the provision makes room for matters of thisnature to be tried by either the Federal High Court if it falls within its jurisdiction, or the State High Court that has unlimited jurisdiction;the case of Savannah Bank v. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (pt. 49) 2I2 was cited. Learned counsel then urged this Court to dismiss the appeal.

Learned counsel to the 2nd respondent Valentine Offia, Esq., in his brief of argument submitted that there is no provision in Section251 (1) (a) – (s) of the

Constitution 1999 which confers jurisdiction on the Federal High Court to construeSection 21 (f) of the 1999 Constitution or Section 31 (1) (2) (3) (5) (6) and (8) of the Electoral Act as it affects individuals and organisation which are agencies of the Federal Government. It was posited that the amended originating summons begs the Federal High Court to construe Section 24 (f)of the 1999 Constitution of Nigeria and Section 31 (1) (2) (3) (5) (6) and (8) of the Electoral Act as itaffects the 1st respondent only. The construction of these laws is not in relation to any Federal Government Agency but in relation to the 1st Respondent only. It was therefore submitted that all the main reliefs are sought solely against the 1st respondent who is not an agent of the Federal Government and that relief 5 is only a consequential or ancillary relief sought against the 3rd respondent, which can only be considered after the principal reliefs have been granted. Hence a Court cannot hear and determine ancillary claims if it has no jurisdiction to entertain the main claims; the case of P.D.P v. Sylava (2012)50 N. S. C. Q. R(pt. 1) page 598; and Terver v. P.D.P SC. 236/2013 (unreported were cited).

The 3rd respondent in support of the sole issue formulated, submitted that the claims

brought before the Court was to construe Section 24 (1) of the 1999 Constitution (as amended) and Section 31 (1) (2) (3) (5) (6) and (8) of the Electoral Act as it relates to the 1st respondent, and the issue relates to whether or not the Tax Clearance Certificate of the 1st respondent was forgery. These issues, according to the counsel for the 3rd respondent Oladipo Olosoba, do not in any way fall within theconfines of the matters listed in Section 251 of the 1999 Constitution. The determination of Tax issues is not in any where listed as one of the areas where the Court can exercise jurisdiction, and the 3rd respondent is not an agent of the Federal Government as provides in Section 251 (1) (a) of the 1999 Constitution. The principal reliefs were directed against the 1strespondent and not the 3rd respondent, and where the Court has no jurisdiction over the principal reliefs it cannot adjudicate on ancillary reliefs. Learned counsel cited the cases of: Kakih v. P. D. P (2014) 15 NWLR (pt. 1430) 413 – 414; P. D. P v. Sylva (2012) 56 N. S. C. Q. R (pt. 1) 598 and Tukur v. Government of Gongola State (1989) 4 NWLR (pt 117) 567.

My lords, I have

carefully and meticulously considered the above brilliant submissions of the learned counsel to all the parties, and before I proceed, I want to, with respect, correct a misconception that the jurisdiction of the Federal High Court is only limited to items listed in Section 251 of the 1999 Constitution of the Federal Republic of Nigeria as amended. Section 251 (1) of the Constitution provides as follows:

“Notwithstanding anything to the contrary 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 Courts in Civil causes and matters”(Underlinings mine)

By this provision, the National Assembly may 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 on matters not listed in Section 251 of the Constitution. This power is derived from the Constitution itself.

(italics mine)

The Electoral Act 2010 (as amended) is an Act passed by the National Assembly, and it expanded and enlarged the jurisdiction of the Federal High Court, where it provides in Section 31 (5) thus:

“Any person who has reasonable ground to believe that any information given by a candidate in an affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false”.

(underlining mine)

To my understanding my noble lords, by this provision, both the State High Court or the Federal High Court have concurrent jurisdiction to hear and determine whether the information provided to INEC in FORM CF001 is false or not.

My lords, with due respect, I wish to ask these three pertinent questions:

1. Who was the information in FORM CF001 submitted to It was the INEC.
2. Who was to use the information in FORM

CF001 in conducting the election as umpire, it was the INEC; and

3. Can it now be said that INEC is not a necessary party where the authenticity of the information submitted to it is alleged to be false under the provisions of Section 31 (5) of the Electoral Act 2010 (as amended).

My lords, I have no slightest doubt in my mind that for the effective determination of this case INEC is a necessary party. It must be noted, with respect, to counsel, that this matter is not an action in rem but in personam. If this action is heard and determined without the presence of INEC, it would be bound by the decision of the Court one way or the other. It is on this ground that I hold, with respect, that INEC is a very necessary party.

The decision of this Hon. Court in Kakih v. P.D.P (supra) has been over flogged. The cause of action in that case arose out of the conduct of primary election where all the parties were participants in the election. It was not a case of alleged false information submitted to INEC. INEC was a mere observer in the primary election. Hence this Court’s decision in Kakih v. P D P (supra) cannot be faulted.

However where a candidate is alleged to provide false information in FORM CF001 submitted to INEC, and which is being challenged, INEC has definitely become a necessary party, and the burden or onus is on the candidate to prove that his information was genuine and not false.

My lord, it is clear that all the parties agreed that where a Federal Government agency is a party to a case, the Federal High Court is possessed with the jurisdiction to hear and determined the case, I, with respect also agreed with them. It goes without saying that INEC is a Federal Government’s agency who is statutorily empowered to conduct the election in issue.

The argument and submission of the respondents that the matter will involve the examination of Tax Administration in Abia State of Nigeria have no moment. All the 1st respondent need to show and establish is that the documents he formulated and represented to the 3rd respondent (INEC) were genuine and not false or forged.

Considering the relevant authorities cited by the appellants’ counsel as additional authorities, I tend to agree with him that this appeal deserves to be allowed. The

authorities cited by the respondents are not all that relevant and are full of misconceptions. The authorities cited by the appellants’ counsel the additional authorities inclusive are relevant. These additional authorities on the jurisdiction of the Federal high Court are hereby reproduced; and the concept of the participation of INEC.

1. Gwede v. INEC (2014) 18 NWLR (pt. 1438) 56 at 147 paras E – F.
2. Obi v. INEC (2007) 1 NWLR (pt. 1046) 565 at 645 Paras E – G; 672 Paras D – E and 694 Paras D – F.
3. Senator Heineken Lokpobiri and Hon. Foster Ogola & 2 Ors. SC. 443/2015 delivered 2/11/2015 by Hon. Justice Walter Samuel Nkanu Onnoghcn, JSC.

I wish however, to put it on record that all the learned counsel in this appeal displayed admirably some elements of deep research and they meticulously presented same to this Court. I really commend all the learned counsel and should keep it up, in fact case comes case goes.

Finally my lords, I hold that the lower Court, with respect, misapplied the well considered decision of this Court in Kakih v. P.D.P (supra) and came to a wrong decision by setting aside the judgment of the trial

Federal High Court. This appeal therefore succeeds and it is allowed. The matter is hereby remitted back to the Federal High Court for trial forthwith. No order as to costs.

SC.504/2015