Rashidi Adewolu Ladoja V. Independent National Electoral Commission (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

On 14th June, 2007, this appeal was heard by this court which in a unanimous decision allowed the appeal, and refused to give further attention to the appellant’s claim. I stated on that day that I shall give my reasons for the judgment today which I now proceed to do.

The appellant herein was the Governor of Oyo State who was elected in the general election conducted on 19th April, 2003. He was sworn in as the Governor by taking his oath of allegiance and oath of office on 29th May, 2003. He was to serve in that office for a term of four years. However following a dispute between him and the House of Assembly of Oyo State, a faction of the members of the House purported to have impeached him in 2005, removing him from office and replacing him with his Deputy. The appellant then challenged this impeachment in the High Court, the Court of Appeal and the Supreme Court where he was successful when the purported impeachment was declared unconstitutional, null and void, resulting in his reinstatement in the office which he was forced to vacate for 11 months. It was as the result of this judgment in his favour that the appellant went before Federal High Court, Abuja and by his amended originating summons dated 29th March, 2007, urging the court to determine

“Whether having regard to the provision of section 180 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the tenure of office of a Governor of a State) and the judgment of the Supreme Court in suit No. SC/272/2006 nullifying the purported removal of the plaintiff from office as Governor of Oyo State of Nigeria, the period of eleven months for which the Governor was illegally removed from office, forms part of the plaintiff’s four years terms of office as Governor of Oyo State.”

On the determination of this question, the appellant as plaintiff asked for the following reliefs:

“1. A declaration that the plaintiff is entitled to a term of four uninterrupted years in officer as Governor of Oyo State of Nigeria commencing from 29th May, 2003 by virtue of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999.

2. A declaration that the plaintiff as the person duly elected and sworn in as Governor of Oyo State can only be Nigerian required to vacate office in the manner prescribed under sections 188 and 189 of the Constitution, that is until the expiration of four years from date on which he swore to the oath of allegiance and oath of office.
3. A declaration that the purported removal of the plaintiff, a sitting Governor in breach of this provision of the Constitution shall not affect or interfere with the certainty of tenure of office of the plaintiff as Governor as provided for in section 180(2) of the Constitution.
4. A declaration that by virtue of section 180 of the Constitution of the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court of Nigeria nullifying the purported removal of the plaintiff from office as Governor of Oyo State, the period of eleven months during which the Governor was removed from office does not form part of the plaintiff’s term of four years as Governor of Oyo State.

5.A declaration that by virtue of the provisions of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff is entitled to remain in office until 29th April, 2008 when his four years certain term of office as Governor of Oyo State shall have expired.

6. A declaration that the plaintiff is not required to vacate office as Governor until 29th April, 2008, which said date conforms with the constitutional period of tenure of four years certain as provided in the Constitution.
7. An order of perpetual injunction restraining the 1st defendant, its agents or privies from conducting an election to the office of Governor of Oyo State on the 14th April, 2007 as scheduled by the 1st defendant, or at any other time without first taking into consideration the period of eleven months, when the plaintiff’s tenure of four years certain would have been accommodated.

The grounds upon which these reliefs were sought are:-

(i) By virtue of S. 180(2)(a) of the Constitution, the Governor of a State of the Federal Republic of Nigeria shall hold office for four years certain commencing from the date when he took the oath of office allegiance and oath of office and can only be removed pursuant to the provisions of the Constitution of the Federal Republic Nigeria, 1999.

(ii) The said period of eleven months when the plaintiff was removed from office does not form part of the plaintiff’s four year certain term of office.”

The appellants/plaintiff’s originating summons was supported by an affidavit to which all the four respondents in this appeal who were the defendants at the trial court filed counter-affidavits before the hearing and determination of the matter. In the judgment delivered on 4th April, 2007, the learned trial Chief Judge dismissed the action holding that the appellant/plaintiff was not entitled to any of the reliefs claimed by him in the originating summons because as the learned Chief Judge put it at pages 151 – 154 of the record –

“The plaintiff’s term of office is four years, calculated from the date the plaintiff took his oath of allegiance and oath of office which is 29th May, 2003 to 29th May, 2007. The 11th months during which the plaintiff was out of office, albeit forcibly, having been declared null and void, cannot now confer any right or impose any obligation on the plaintiff. To take cognizance of the period in calculating the period of 4 years of the plaintiff’s tenure so as to award to the plaintiff an additional period of 11 months in office would have the effect of elongating or extending the plaintiff’s tenure of office beyond 29th May, 2007, and push same to 29th April, 2008. That is a thing that will clearly offend the provisions, particularly section 180(2)(a) and (b) of the Constitution, 1999. It will also offend the provisions of section 178(1) and (2) of the Constitution.”

The appellant/plaintiff’s appeal to the Court of Appeal, Abuja urging that court to set aside the decision of the trial court and substitute it with a judgment granting him all his reliefs in the amended originating summons was partially successful. The Court of Appeal in its judgment delivered on 16th April, 2007, allowing the appeal, held that the trial court has no jurisdiction to entertain the appellant/plaintiff’s claim which that court regarded as a matter within the exclusive jurisdiction of the National Assembly Election Tribunal, Oyo State, to which the action was transferred for hearing and determination under section 285(1)(b) of the 1999 Constitution.

Aggrieved by this decision of the Court of Appeal, the appellant/ plaintiff has now appealed to this court and the sole issue distilled from his two grounds of appeal reads –

“Whether the learned Justices of the Court of Appeal are right to hold that the Federal High Court has no jurisdiction to determine the tenure of office of a Governor, except National Assembly Election Tribunal, under S. 285(1) of the Constitution of the Federal

Republic of Nigeria, 1999 and if not, whether the appellant is not entitled to his claims and reliefs as contained in the declaration sought in the lower court which this Honourable Court can entertain under section 22 of the Supreme Court Act.”

The 1st and 3rd respondents before this court who are apparently not comfortable with the decision of the Court of Appeal have also separately filed their cross-appeals against it. The 1st respondent/cross-appellant in its respondent/cross appellant’s brief of argument has no quarrel with the issue for the determination of this appeal on the question of jurisdiction as distilled in the appellant’s brief of argument. In the 2nd respondent’s brief of argument however, the following two issues were raised.

“(a) Whether the learned Justices of the Court of Appeal were right to have declined jurisdiction on the appellant’s case without inviting parties to address it on the issue of jurisdiction.

(b)Whether in the circumstances of the case the appellant is entitled to his claim.”

The 3rd respondent/cross-appellant in his brief of argument on the other hand, four issues for determination were identified. They are(1) Whether the learned Justices of the Court of Appeal are right to hold that the Federal High Court has no jurisdiction to determine the tenure of office of a Governor and that only the National Assembly Election Tribunal has jurisdiction to entertain the matter.

(2) Whether if, the Federal High Court lacked jurisdiction to entertain the matter, the proper order for the Court of Appeal to make is not a striking out of the case or whether it is the transfer of the case to the National Assembly Election Tribunal.

(3) Whether if the Supreme Court holds that the Court of Appeal had jurisdiction to entertain the appeal, whether the court can go ahead to consider the matter on its merit or whether the Court of Appeal not having considered the matter on its merits, the proper order would not be one remitting it back to the lower court to be determined on its merits.

(4) Whether if the Supreme Court decides to consider the appeal to the lower court on the merits, the plaintiff/applicant deserves to be given judgment elongating his tenure by eleven months till April, 2008 as claimed in his originating summons.”

As for the 4th respondent, its learned senior counsel who filed the respondent’s brief on its behalf, saw only the following two issues for determination

1. Whether their Lordships of the Court of Appeal were wrong to have declined jurisdiction on the case of the appellant.
2. Whether in all the circumstances of this case, appellant is entitled to the reliefs contained in his amended originating summons.”

In dealing with the issue of jurisdiction first, learned appellant’s senior counsel pointed out that the provision of section 285(1)(b) of the 1999 Constitution did not arise at all for consideration in the Court of Appeal to justify that court relying on it to decline jurisdiction to determine the appellant’s appeal before it; that what was before the court relates to a term of office of a Governor of a State as provided for in section 180 of the same Constitution which does not call for the interpretation or section 285 of the Constitution which deals with the establishment of Election Tribunals conferring them with exclusive jurisdiction to determine election petitions. Learned senior counsel referred to the claims of the appellant contained in the originating summons and the decisions of this court in Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 587 – 889 and maintained that the appellant’s claims are within the jurisdiction of the Federal High Court and not any Election Tribunal as found by the court below. In conclusion, learned senior counsel for the appellant submitted that since the court below has jurisdiction to have heard and determined the appellant’s appeal on its merits but erroneously declined to do so, this court is urged to exercise its powers under section 22 of the Supreme Court Act and determine the appeal and finally refuse or grant the appellant’s relief.

Learned senior counsel for the 1st respondent however has argued that the court below was quite right in its judgment now on appeal that by virtue of the clear provisions of section 285(1)(b) of the 1999 Constitution, only the National Assembly Election Tribunals that have exclusive jurisdiction to determine whether or not the term of office of the appellant under the Constitution, had ceased. However learned senior counsel articulated in the 1st respondent’s cross-appeal that the court below on declining jurisdiction, ought to have struck out or dismissed the matter entirely and not to have remitted it to the National Assembly Election Tribunal for hearing.

The 2nd respondent also strongly supports the decision of the court below that only the National Assembly Election Tribunal that has jurisdiction to determine the appellant’s claim. This is because, according to the learned counsel for the 2nd respondent, that the provisions of section 285(1)(b) of the 1999 Constitution which are clear and plain, have ousted the jurisdiction of the Federal High Court and by extension, the jurisdiction of the Court of Appeal from hearing the appellant’s claim or matter. In support of his 1st issue on jurisdiction, the 3rd respondent/cross-appellant is of the strong view that the court below was not right in its decision on the question of jurisdiction as it was the lower court that has jurisdiction to entertain the matter and not the National Assembly Election Tribunal. Although the learned senior counsel for the 4th respondent in his oral submission appeared to have taken a different position from what was urged in the 4th respondent’s brief of argument, the argument in the brief is in full support of the decision of the court below. It was argued in this respect that on the issue relating to question as to term of office, it is the National Assembly Election Tribunal that is vested with jurisdiction, irrespective of whether or not the office in question relates to the National Assembly or a Governor of a State, such as the appellant. It is quite clear from the judgment of the court below now on appeal, that the hearing of the parties in the appellant’s appeal that was being heard by that court had virtually been concluded before the observation on jurisdiction was thrown in by Chief Gadzama, learned senior counsel for the 1st respondent when the court in its judgment at pages 252 – 253 of the record of appeal said –

“At this juncture, before the learned senior counsel, for the appellant could reply on points of law, Chief Gadzama senior counsel for the 1st respondent rose and submitted that it is only an election tribunal that could entertain the matter and that the appellant should have gone to an Election Tribunal and not the Federal High Court. Chief Clarke replied that the appellant was right to have gone to the Federal High Court and that this is not a matter for an election tribunal.” It was solely on the basis of this last submission and without affording the 2nd, 3rd and 4th respondents a hearing through their respective learned counsel on the issue of jurisdiction raised by Chief Gadzama, that the court below proceeded to rule on the issue after dwelling extensively on the provisions of section 285(1)(a), (b), (c) and (d) of the 1999 Constitution which was not specifically raised at the trial court or at the hearing of the appellant’s appeal. Even though it was raised towards the tail end of the proceedings in the hearing of the appeal, it was indeed properly raised and the court below was right in having it determined even though in clear breach of the 2nd, 3rd and 4th respondents right of fair hearing. See Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt. 336) 26 at 40, Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 and Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. In other words, the court below ought to have heard all the parties before proceeding to rule on the issue of jurisdiction ..

The provisions of section 285(1) of the 1999 Constitution which was applied by the court below to oust not only the jurisdiction of the trial court but also that of the lower court itself in entertaining the appellant is indeed quite plain. It reads:

“285(1) 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;

(b) the term of office of any person under this Constitution has ceased;

(c) the seat of a member of the senate or a member of the House of Representatives has become vacant; and a question or petition brought before the election tribunal has been properly or improperly brought.”

In interpreting the above provisions of the Constitution which deal with the establishment and jurisdiction of election tribunals, the court below has this to say in its ruling or judgment:

”The provision of S. 285(1)(b) of the 1999 Constitution is clear and unambiguous and as such the words must be given their ordinary meaning. Simply put, S. 285(1)(b) gives exclusive original jurisdiction to the National Assembly Election Tribunals to entertain and determine petitions as to whether the term of office of any person under the said Constitution has ceased. No other court or tribunal has original jurisdiction to entertain the matters.”

That is indeed the position of the law on the exclusive original jurisdiction of the National Assembly Election Tribunals to hear and determine petitions as to whether the term of office of any person under this Constitution has ceased. Where the court below went wrong was when it proceeded straight to say that the Federal High Court has no jurisdiction to entertain the claim of the appellant in the appeal before it, without even looking at the appellant’s claim that went before the Federal High Court in the appellant’s originating summons for hearing and determination. Although the appellant, then occupying the office of the Governor of Oyo State, one of the

offices created under the Constitution clearly falls into the definition of “any person” under the Constitution as contained in section 285(1)(b) considered and applied by the court below to the appellant’s claim at the Federal High Court, that claim was not complaining to the Federal High Court that the term of office of the appellant under the Constitution had ceased. If any thing can be rightly said of the claim of the appellant in the originating summons which was fully quoted in the judgment of the court below but which was not looked into or examined by that court before ruling on the issue of jurisdiction, is in fact the opposite of the matter contemplated under section 285(1)(b) of the Constitution. This is because simply put, what the appellant was asking in the Federal High Court was a declaration that his term of office would not terminate or cease on 29th May, 2007 but on 29th April, 2008 when he would have had his full four uninterrupted years in office as Governor of Oyo State of Nigeria, having been unconstitutionally and unlawfully kept out of that office by a faction of the members of the Oyo State House of Assembly. Not only that, the appellant in that claim also asked for an injunctive relief to stop the 1st respondent from taking any step to conduct any election to the office of Governor of Oyo State on 14th April, 2007 to allow him to enjoy his full uninterrupted period of four years certain in office. These declaratory and injunctive reliefs sought by the appellant as plaintiff before the Federal High Court, were predicated on the interpretation and application of section 80(2)(a) of the Constitution. Certainly, the appellant’s case that was heard and determined by the Federal High Court had nothing to do with the provisions of section 285(1)(b) of the Constitution which the court below applied to it. The law is indeed trite that in the situation that arose at the court below regarding the determination of whether or not the trial Federal High Court has jurisdiction to entertain the claim of the appellant as contained in the originating summons, it is that claim that needed to have been examined. See Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31; Izenkwe v. Nnadozie (1953) 14 WACA 361; Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423. Looking at the appellant’s originating summons relevant parts of which have been earlier quoted in this judgment, I am of the view that the declaratory and injunctive reliefs sought therein are squarely within the jurisdiction of the Federal High Court as prescribed under section 251 (1)(q) and(r) of the 1999 Constitution which reads –

“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…

q. subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.

r. any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

This is because when the appellant went to the trial Federal High Court with his case against the 1st respondent, an agency of the Federal Government and the 2nd respondent being the Chief Law Officer of the Federation before the 3rd and 4th respondents applied to join, the action is clearly within the jurisdiction of the trial court where it was initiated by the appellant. See Inspector General of Police v. Aigbiremolen (1999) 13 NWLR (Pt. 635) 443; Ayeni 11. University of Ilorin (2000) 2 NWLR (Pt.644) 290; University of Agriculture, Makurdi v. Jack (2000) 11 NWLR (Pt. 679) 658 and Olutola v. University of I1orin (2004) 18 NLWR (Pt. 905) 416 at 63. In this respect, the declaratory and injunctive reliefs having regard to the undisputed facts averred in the affidavit in support of the originating summons and the counter-affidavits filed by the respondents/defendants tracing the grounds of the appellant’s claim to the judgment of this court in his favour in the case of Inakoju v. Adeleke (supra), the lower court was clearly in error in linking the appellant’s case to the class of matters that ought to be initiated at the National Assembly Election Tribunals under section 285(1)(b) of the Constitution. On the whole therefore, the appeal on the issue of jurisdiction succeeds and it is hereby allowed. The decision of the court below of 16th May, 2007 that the trial court and consequently the court below lacked jurisdiction to entertain the case of the appellant and his subsequent appeal against the decision of the trial court to the Court of Appeal, is set aside and replaced with a declaration that both the trial court and the court below have jurisdiction in the matter.

In other words the court below has jurisdiction to hear and determine the appellant’s appeal which was properly before it under section 240 of the Constitution and which ought to have been heard on the merit as the matter in dispute between the parties, cannot be brought within the ambit of the section 285(1)(b) of the Constitution to exclude the Federal High Court and indeed any other court apart from the National Assembly Election Tribunal from exercising original jurisdiction to hear and determine it. With this decision on the appellant’s appeal, the cross-appeals of the 1st and 3rd respondents are no longer alive for determination. Next for determination after allowing the appeal on the issue of jurisdiction resulting in the declaration that both the trial court and the court below have jurisdiction to deal with the substance of the appellant/plaintiff’s claim and the appellant’s appeal, is what to do to the appellant’s appeal now pending at the court below which that court declined to determine after hearing on the erroneous ground that it has no jurisdiction. The situation on the ground is quite clear. The action of the appellant commenced by originating summons supported by affidavit and opposed by counter-affidavits of defendants to the action, was duly heard and determined by the trial court. At the conclusion of the hearing, all the reliefs claimed by the appellant/plaintiff in the action were refused leading to the dismissal of the action. The facts of the case which are not at all in dispute between the parties are quite clear. The appellant whose tenure of office commenced on 29th May, 2003 when he took his oath of allegiance and oath of office to serve his first term of four years in the office as Governor of Oyo State, has not shown anything on record by which the fixed period of four years under section 180(2)(a) of the 1999 Constitution can be extended beyond 29th May, 2007. As neither this court nor any other court for that matter has power to extend this period of four years for the appellant beyond the terminal date of 29th May, 2007, and taking into consideration of the need to give this matter expeditious hearing and determination as it had all along enjoyed right from the trial court through to the Court of Appeal and in this court, there is no justification whatsoever in allowing proceedings in this matter to be pursued any further only for the pronouncement of the position of the law which is quite clear and unambiguous. These are my reasons for allowing the appellant’s appeal on the issue of jurisdiction and refusing to attend to the appellant’s declaratory and injunctive reliefs already refused by the trial court. Having regard to the result of this appeal, I am not making any order on costs.

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SC.120/2007