Ocheja Emmanuel Dangana & Anor V. Hon. Atai Aidoko Ali Usman & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.
The two appeals now before this court as SC.480/2011 and SC.11.2012 emanated from the judgment of the Court of Appeal Abuja delivered on the 13th of December 2011. They are based on the same records of appeal transmitted to this court on 18/1/2012.
The parties in SC.480/2011 are Ocheja Emmanuel Dangana as appellant and Hon. Attai Aidoko Ali Usman; All Nigeria Peoples Party (ANPP); Peoples Democratic Party (PDP); Independent National Electoral Commission (INEC); Dr. S.A. Abolusoro (Returning Officer Kogi East Senatorial District) as 1st – 5th respondents. In appeal SC.11/2012, the appellant is Peoples Democratic Party (PDP) and Hon. Atai Aidoko Ali Usman; All Nigeria Peoples Party (ANPP); Ocheja Emmanuel Dangana; Independent National Electoral Commission (INEC); Dr. S. A. Abolusoro (Returning Officer Kogi East Senatorial District) as respondents. In preparation for the 2011 General Elections, the Independent National Electoral Commission (INEC) published its timetable for all the election activities, Primaries were held by parties contesting in the election during which the appellant and 1st respondent in the appeal SC.480/2011 became .the senatorial candidates for their respective parties – Peoples Democratic Party and All Nigeria Peoples Party. On the 9th of April, 2011, the Kogi East Senatorial District Election was conducted by INEC. The appellant was sponsored by his party, PDP and the 1st respondent by ANPP. They both contested with candidates of six other political parties. The appellant won the election by scoring 131,386 votes. He defeated the 1st respondent who came second with 16,600 votes. Certificate of return was issued to him by INEC. The 1st respondent being dissatisfied with the outcome of the election filed a petition on the 27th of April 2011 at the Election Petition Tribunal sitting at Lokoja to challenge the declaration and return of the appellant. In the judgment delivered on the 18th of October 2011, the Tribunal held amongst other things that the 1st and 2nd respondents predicated their petition on the fact that the appellant was not qualified to contest the election as he was not lawfully and validly sponsored to contest the election as a candidate for his party as required by Section 65 (2) (b) of the 1999 Constitution and Section 138 (1) (a) of the Electoral Act 2010 (as amended). The Tribunal identified flaws in the conduct of P.D.P. primaries which took place in Anyigba instead of Idah the Senatorial constituency headquarters for Kogi East on 28th January 2011. The Tribunal dismissed the petition of the 1st and 2nd respondents by identifying the issues raised as pre-election. The 1st and 2nd respondents appealed to the Court of Appeal, Abuja.
In the judgment of the court delivered on the 13th of December 2011 the appeal was allowed on the sole ground that the appellant was not qualified to contest at the time of the election as envisaged by Section 65 (2) (b) of the 1999 Constitution and Section 138 (1)(a) of the Electoral Act 2010. Consequently, any votes allegedly credited to him at the said election were wasted votes in the eyes of the law. The appellant lodged an appeal to this court to express his dissatisfaction as his contention was that the Court of Appeal exceeded its jurisdiction to delve into pre-election issues of the senatorial primaries conducted on the 28th January 2011. The Court of Appeal directed the 4th respondent to withdraw the Certificate of Return issued to the appellant and instead issued the 1st respondent a Certificate of Return. Vide pages 1127-1151 Vol.2 of the Record.
The appellant filed two separate Notices of Appeal. The learned counsel later withdrew the Notice of Appeal filed on 15th December 2011 and relied on the Notice filed on 23rd December 2011. At the hearing of the appeals, the appellant relied on the brief and the reply brief and formulated four issues for determination as appellant 3rd respondent as follows:-
- Whether having regard to the correct interpretation of the combined , provisions of Section 65 (2) (b) and 246 (1) (b) (i) of the Constitution of Federal Republic of Nigeria 1999 as amended vis-a-vis sections 85 (1), 87 (a) and 138 (1) of the Electoral Act 2010 (as amended) as well as the pleadings filed and exchanged and evidence adduced, the judgment of the Court of Appeal which nullified the election of the appellant predicated on a pre-election matter to wit invalidity of senatorial primary conducted on 28th January, 2011 is not altogether a nullity for want of jurisdiction and denial of fair hearing.
- Whether the Court of Appeal was right in admitting the letter dated 24th January 2011 as Exhibit P21 and relying heavily on same to nullify the election of the appellant.
- Whether having regards to the doctrine of stare decisis in the circumstances of this case the Court of Appeal was right in declining to follow the decision of this Honourable court in Senator Julius Ali Ucha v. Dr. Emmanuel Onwe & 4 Ors (2011) 4 NWLR (pt.1237) pg.386 on the ground that it was distinguishable from the present case.
- Whether the Court of Appeal was right in overruling the preliminary objections against the appeal before it.
The 1st and 2nd appellants raised three issues for determination as follows:-
- Within the con of Section 65 (2) (b) of the 1999 Constitution and Section 138 (1) (a) of the Electoral Act 2010, is the issue of qualification of a person to contest a senatorial election a pre-election outside the jurisdiction of the National Assembly Election Tribunal.
- Whether the Court of Appeal was right in admitting in evidence the letter dated 24th January 2011 as Exhibit P21 and relying on same to nullify the election of the appellant.
- Whether the Court of Appeal rightly overruled the preliminary objection of the appellant against the competence of the appeal below.
The 3rd respondent/appellant – the Peoples Democratic Party (PDP) raised two issues as follows:-
- Whether the Court of Appeal was not in grave error and its judgment a nullity when it assumed jurisdiction in an election petition to determine the validity and actually determined the validity of the primary election which produced the appellant as candidate of 3rd respondent for the Kogi East Senatorial District election of 9th April 2011.
- Was the lower court right when it nullified the primaries election of the 3rd respondent in an election petition when –
a. The 1st and 2nd respondents are not members of the 3rd respondent.
b. When the 1st and 2nd respondents did not plead or raise the issue of 21 days notice which formed the kernel of the judgment.
c. And the 3rd respondent was not heard on the unpleaded fact of 21 days notice which the lower court raised suo motu.
The learned counsel for the 4th and 5th respondents, Mr. Raji Ahmed withdrew the joint brief at the hearing of the appeal in that the respondents conceded the appeal without filing a cross-appeal. The traditional role of a respondent in an appeal is to defend the judgment.
Before the argument in the substantive appeals, the learned senior counsel for the 1st and 2nd respondents in the two appeals raised a preliminary objection to the competence of the two appeals. He mentioned that this honourable court has no jurisdiction to entertain any appeal from the final decision of the Court of Appeal in respect of appeals arising from the National and State House of Assembly Election Petitions Tribunal. The grounds for the preliminary objections in both appeals are similar and in fact the eight grounds in the appeal SC.11.2012 are subsumed in the ten grounds raised in appeal SC.480/2011. I shall consider the preliminary objection in the two appeals together.
The learned senior counsel Mr. Ikwueto predicated the preliminary objection on ten grounds as follows –
1) By the provision of Section 246 (3) of the 1999 Constitution the decision of the Court of Appeal in respect of appeals arising from the National and State House of Assembly Election Petitions shall be final.
2) The judgment of the Court of Appeal dated 13th December, 2011 arose from a decision of the National Assembly Election Petition Tribunal sitting at Lokoja, Kogi State concerning the election to the office of member of Senate for Kogi East Senatorial District.
3) Sponsorship of a candidate is a constitutional requirement for qualification to contest an election to the office of Senate under Section 65 (2) of the 1999 Constitution.
4) By the provision of Section 138 (1) (a) of the Electoral Act 2010 (as amended) an election may be questioned on the ground that a person whose election is challenged was at the time of the election not qualified to contest the election.
5) The final decision of the Court of Appeal dated 13th December 2011 on the constitutional qualification of the appellant (Ocheja Emmanuel Dangana) to contest the election held in Kogi East Senatorial District on 9th April 2011 is not an intra party dispute nor a case of substitution of candidates by a political party and thus not a pre-election matter.
6) The decision concerning pre-election disputes in Odedo v. INEC (2009) 17 NWLR (pt.1117) pg.554 and Senator Julius Ucha v. Dr. Emmanuel Onwe & Ors (2011) 4 NWLR (pt.1237) pg.386 are totally irrelevant to the constitutional and statutory issues of qualification to contest election within the meaning of Section 65 (2) (b) of the 1999 Constitution (as amended) and Section 138 (1) (a) of the Electoral Act 2010 (as amended).
- The jurisdiction of the Supreme Court over any matter is statutory.
- The grounds of appeal contained in the notice of appeal dated 23rd December 2011 are grounds of mixed law and facts.
- The appellant’s brief of argument filed on 6th January 2011 and based on the notice of appeal filed on 23rd December 2011 is grossly incompetent.
- No leave of this honourable court nor the court below was sought and obtained to appeal to this honourable court on grounds of mixed law and facts.
The learned senior counsel distinguished the case of Ucha v. Onwe from the present appeal. The Practice Directions for Election Appeals to the Supreme Court dated 19th October, 2011 did not envisage an appeal to this court from decision of the court below in respect of appeals emanating from National/State House of Assembly Election petitions but only appeals emanating from Governorship Election Petitions and Presidential Election Petitions. In the reply to the preliminary objection, the appellant in SC.480/2011 attacked the competence of the 1st and 2nd respondents’ briefs as the briefs are not filed 5 days after service of the appellants but 14 days thereafter. This was in gross violation of paragraph 6 of the Practice Direction. The 1st and 2nd respondents did not obtain leave to file the briefs out of time. The learned senior counsel for the appellant Mr. Akubo submitted that the 1st and 2nd respondents missed the point on the issue of jurisdiction. The lower court used a pre-election issue of senatorial primaries conducted on 28th January, 2011 to invalidate both the nomination and election of the appellant.
The Court of Appeal was no longer sitting as an appeal Tribunal having delved into a subject-matter that should have come before it in a regular civil appeal bothering on pre-election issue. That gave the appellant an automatic constitutional right of appeal to this court by virtue of Section 233 (1) of the Constitution. The Court of Appeal is only a final court pursuant to Section 246 (3) of the Constitution to the extent that it limits itself to election appeals. This court in many decided cases held that it had jurisdiction where the appeal involve a pre-election matter. The appellant mentioned the cases of Senator Julius Ali Ucha v. Dr. Emmanuel Onwe & 4 Ors (2022) 4 NWLR (pt.1237) ps.386.
Dingyadi v. INEC (2011) 10 NWLR (pt.1255) pg.347 at pg.394.
Onuaguluchi v. Ndu (2007) 7 NWLR (pt.712) 309.
The Supreme Court as the final constitutional law court remains the ultimate court to interprete and construe Section 233 (1)(b)(i) of the Constitution as amended. The appellants contended that the question of sponsorship under Section 65 (2)(b) of the Constitution is inextricably linked to an aspirant’s qualification to contest an election. The appellants submitted in rebuttal that the contention has no force of law. The claim of the 1st and 2nd respondents that the said primaries have to do with the constitutional qualification of the appellant arising from his purported illegal and unlawful sponsorship is manifestly contradicted by this court in the case of Ucha v. Onwe as a wrong position of the law. Further, the contention that sponsorship as a pre-condition for qualification to contest an election under Section 138 (1) (a) and 65 (2)(b) of the Constitution is misconceived – as the so called issue of qualification of the appellant is limited to non-attendance of INEC at the senatorial primary of 28th January, 2011. The court is urged to overrule the preliminary objection.
The appellant in appeal SC.11/2012 and 3rd respondent in SC.480/2012 replied by laying emphasis on the jurisdiction of the Court of Appeal particularly in election matters as defined by the constitution – under Section 246 (1)(b)(i) of the 1999 Constitution (as amended) and the validity of the primary election conducted under Section 87 of the Electoral Act 2010. The jurisdiction to entertain complaints arising from the conduct of the primary election of a political party is by virtue of Section 87 (9) of the Electoral Act vested in the regular courts from where appeals lie to the Court of Appeal pursuant to Section 243 of the Constitution. Appeals from an Election Petition Tribunal established under Section 285 of the Constitution go to the Court of Appeal pursuant to Section 246 of the Constitution.
The findings of fact of the Court of Appeal at page 1146 of the record read:
“The process that purportedly ushered him in on 28th January 2011 as candidate of the PDD is seriously flawed. The purported nomination was illegal and a nullity.”
The power of the Election Tribunal and the Court of Appeal while acting under Section 246 of the constitution does not extend or cover primaries election or pre-election matters. The issue arising out of the primaries election held on 28th January 2011 before National Assembly Election is a pre-election matter which the Court of Appeal while sitting on appeal from an election Tribunal ought not to countenance. The appellant 3rd respondent cited decisions of this court to that effect –
Adeogun v. Fashogbon (2008) 17 NWLR (pt.1115) p.149.
Ayogu v. Nnamani (2006) 8 NWLR (pt.981) pg.170.
Ibrahim v. INEC (1999) 8 NWLR (pt.614) pg.334.
ANPP v. Usman (2006) 8 NWLR (pt.117) pg.654.
Ucha v. Onwe (2011) All FWLR (pt.580) pg.1227 at pg.1259.
On the authority of Ucha v. Onwe 7 4 Ors (2011) 4 NWLR (pt.1237) pg.386 where an election petition tribunal or the Court of Appeal while determining an appeal arising from an election tribunal found its decision on a subject over which an appeal lies under the Supreme Court jurisdiction, the Supreme Court has jurisdiction to entertain appeal from such decision notwithstanding that the decision appealed against arose from an election petition. The decision of the Court of Appeal in this matter is a nullity. The court is urged to overrule the objection of the 1st and 2nd respondents and hear the appeals on their merit.
The meat and substance of the preliminary objection of the 1st, and 2nd respondents is for this court to determine whether it has jurisdiction to hear these appeals under Section 233 (2) (e) of the 1999 Constitution (as amended) when the subject matter of the appeals is an election petition emanating from an Election Petition Tribunal and the Election Appeal Tribunal. Pursuant to Section 246 (3) of the 1999 Constitution, the final court is the Court of Appeal and the Supreme Court has no jurisdiction to adjudicate on it. This issue is straightforward and within narrow limit. This court is invited to interprete the scope and extent of its jurisdiction under Section 239 (2) (e) of the 1999 Constitution (as amended) and Section 246 (3) of the Constitution.
An election was conducted by the 4th respondent, INEC in the Kogi East Senatorial District on the 9th of April 2011. Amongst the candidates who contested were candidates sponsored by their parties the Peoples Democratic Party and the All Nigeria Peoples Party. At the time the petition was filed, the scenario was that:-
- Primaries were held and completed by the parties.
- Candidates were nominated by the parties with their names forwarded to INEC.
- A valid election was conducted for Kogi East Senatorial District.
- The appellant in the appeal SC.480/2011 emerged the winner of the election. The loser presented a petition before the Tribunal.
It was brought under one of the valid grounds for challenging an election under Section 138 (1) (a) of the Electoral Act 2010 and Section 65 (2) of the 1999 Constitution. On a close scrutiny of the legal points raised and submission of counsel in the preliminary objection, I observed that relatively similar issues were raised in the appeals to be heard and determined by this court when the issue of jurisdiction is settled. It will amount to putting the cart before the horse if I consider and determine the submission of counsel now. I defer the issue of competence to hear the subject matter of the appeals until the preliminary issue of jurisdiction of this court is settled. It is sufficient to note that the appeals are against the decision of the Election Petition Appeal Tribunal, Abuja in respect of Kogi East Senatorial District election. The focus in this preliminary objection is the jurisdiction of the Court of Appeal as a final court over senatorial elections and the Supreme Court as a final court over governorship election.
The unique aspect of jurisdiction is that courts are set up by the Constitution, Decrees, Laws, Acts and Edicts. They cloak the courts with the powers and their jurisdiction of adjudication. If the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a court or tribunal, the court and the parties cannot by agreement endow itself with jurisdiction. The jurisdiction of the court is confined, limited and circumscribed by the statute creating it. In view of the fact that jurisdiction is threshold matter, it is very fundamental as it goes to the competence of the court to hear and determine a suit.
Where a court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is mandatory and very crucial that courts decide the issue of jurisdiction before looking into the extent of judicial power exercisable under that jurisdiction. At the commencement of a trial, particularly where there is a challenge to the jurisdiction of a court, the court must first assume jurisdiction to consider whether it has or lacks jurisdiction.
Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (pt.974) pg.619.
Okulate v. Awosanya (2000) 2 NWLR (pt.646) pg.530.
Onuorah v. KRPL Ltd. (2005) 6 NWLR (pt.921) pg.393.
Messrs NV Scheep v. The MV ‘S’ Araz (2000) 15 NWLR (pt.691) pg.622.
Ajayi v. Milad Ondo State (1997) 5 NWLR (pt.504) pg.237.
Amadi v. N.N.P.C. (2000) 10 NWLR (pt.674) pg.76.
Galadima v. Tambai (2000) 11 NWLR (pt.677) pg.1
Jurisdiction on a broad perception encompasses legal capacity, power or authority of a court. Competence of a court is the handmaid of jurisdiction of a court. A court must have both jurisdiction and competence to be properly seised of a cause or matter. Jurisdiction in that sense means the legal capacity, power or authority vested in it by the Constitution or statute creating the court.
A court is competent to entertain a case
a. When the subject matter of the case is within the court’s jurisdiction.
b. Whether there is any feature in the case which prevents the court from exercising its jurisdiction.
c. When it is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another.
Madukolu v. Nkemdilim (1962) 2 SCNLR pg.341.
Galadima v. Tambai (2000) 6 SC (pt.1) pg.196.
Araka v. Ejeagwu (2000) 12 SC (pt.1) pg.99.
When dealing with the issue of jurisdiction or lack of it the courts are guided by some principles which are: –
a. Jurisdiction is a matter of substantive law no litigant can confer jurisdiction on the court where the constitution or statute or any provision of the common law says that the court does not have jurisdiction.
b. Jurisdiction cannot be assumed in the interest of justice.
c. Nothing shall be intended to be outside the jurisdiction of the superior court but that which specifically appears to be so and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged.
d. Although courts have great powers yet their powers are not unlimited.
Their jurisdiction is confined, limited and circumscribed by the statute creating it.
e. The court is not hungry after jurisdiction.
f. Judges have a duty to expound the jurisdiction of the court and not expand it as by so doing the court will be usurping the functions of the legislature.
g. A court cannot give itself jurisdiction by misconstruing a statute.
African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (pt.6) pg.137.
I shall now give a microscopic analysis to the two appeals so as to determine whether this court has jurisdiction conferred on it by the constitution to entertain appeals from senatorial election petitions in view of Section 246 (3) and Section 285 of the Constitution (as amended). It is when this crucial issue of jurisdiction is settled that we can embark on the question of competence of the court to adjudicate upon the subject matter of the appeal. The petitions are complaints against the conduct of the senatorial election in Kogi State Senatorial District on the 9th of April, 2011. The petition was filed, heard and determined by Election Petition Tribunal Lokoja. The appeal in the matter went before the Election Appeal Tribunal, Court of Appeal Abuja where it was heard and determined.
Section 285 (1) of the 1999 Constitution stipulates that –
“There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether –
a. Any person has been validly elected as a member of the National Assembly.”
Section 246 (1)(a) of the Constitution:-
An appeal to the Court of Appeal shall lie as of right from
(b) Decisions of the National Assembly Election Tribunals and governorship and Legislative Houses Election Tribunals on any question as to whether
(i) Any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.
(3) The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final.
Section 233 (2) (e) as amended does not make reference to appeal from the Court of Appeal on whether anybody has been validly elected as a member of the National Assembly.
In the literal rule of interpretation, courts must interprete words in the Constitution in accordance with the intendment and certainly not in a way opposed to the purpose intended for the enactment. There should be no divergence but a strict confinement within the ordinary meaning of the words used in the Constitution unless that is at variance with the intention of the legislature to be gathered from the words used or leads to any manifest absurdity or repugnance.
Fawehinmi v. I.G.P. (2000) 7 NWLR (pt.665) pg.481.
Awolowo v. Shagari (1979) 6-9 SC 51.
Furthermore, where the words of a stature are clear, unambiguous and unequivocally express the intention of the lawmakers, effort must be given to them irrespective of whether that produces a harsh or inconvenient result. In the instant appeals, the provisions of the foregoing section are clear and unambiguous. The words of the provision ought to be accorded their simple grammatical meaning.
A-G Bendel State v. A-G Federation (1982) 3 NCLR 1.
Imah v. Okogbe (1993) 1 NWLR (pt.316) pg.159.
Obomhense v. Erhabor (1993) 7 NWLR (pt.303) pg.22
It is apparent that the provisions of the 1999 Constitution as amended do not envisage an appeal to the Supreme Court from the Court of Appeal in National Assembly Election Petitions based on whether anybody has been validly elected as a member of the National Assembly. The Court of Appeal shall be the final court by virtue of Section 246 (3) of the 1999 Constitution. The provision of Section 246 (3) affirms the previous decisions of this court.
In the case Onuaguluchi v. Ndu (2001) 7 NWLR (pt.712) pg.309 this court held at pages 321-322 paragraphs H-D
“Where an appeal is actually in respect of National Assembly election or other relevant election, whatever errors of a procedural nature or of a procedural vice as to jurisdiction or competency, cannot be corrected by this court. They can only be corrected by the Court of Appeal or else they will remain uncorrected or unresolved as this court cannot intervene since it has no appellate or supervisory Jurisdiction over the Court of Appeal in such circumstance. This court will not permit or encourage any subterfuge under which it may assume jurisdiction to hear an appeal in respect of which the Constitution has in clear and unambiguous language made the Court of Appeal the final court. It follows that an appeal In respect of a decision of the Tribunal In an election petition when decided by the Court of Appeal cannot be taken on appeal to the Supreme Court but is final for all purposes.”
Also in the case of Awuse v. Odili (2003) 18 NWLR (pt.851) pg.116 this court said:-
“It is therefore now well settled that pursuant to the provisions of Sections 246 (1) (b) and 11 and (3) of the 1999 Constitution, the Court of Appeal acting within its jurisdiction in deciding an appeal arising from an election petition as stipulated under the said section of the constitution is the final Court of Appeal. Whether it did so rightly or wrongly in its decision cannot be questioned on appeal in this court by virtue of the express provisions of the said Section 246 (3) of the 1999 Constitution which stipulates that the decision of the Court of Appeal in respect of appeals arising from the relevant election shall be final.”
Esewe v. M. T. Gbe (1888) 5 NWLR (pt.93) pg.134.
Eco consult Ltd. v. Pancho Villa Limited (1999) 1 NWLR (pt.588) pg.507.
In short by virtue of section 246 (1) (b) (i) and (3) of the 1999 Constitution, the Court of Appeal has the mandate to decide an appeal arising from an election petition and shall be the final court. Whether it did so perfectly, rightly or wrongly, the decision it arrives at cannot be taken on appeal to the Supreme Court for consideration. The Supreme Court cannot entertain appeals which it has no jurisdiction to adjudicate upon. Once a court has no jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there.
Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Ibeanu v. Ogbeide (1994) 7 NWLR (pt.359) pg.697.
Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) NSCC pg.477.
In the final analysis, the preliminary objection of the 1st and 2nd respondents to the appeals SC.480/2011 and SC.11/2012 has merit and it is accordingly sustained.
It is trite that where a court finds that it lacks jurisdiction to adjudicate on any matter, the proper order to make is an order of striking out.
Saleh v. Monguno (2003) 1 NWLR (pt.801) pg.221.
Okafor v. Nnaife (1973) 1 All NLR (pt.1) pg.238.The two appeals SC.480/2011 and SC.11/2012 are hereby struck out. Parties are to bear their costs.