Vivian Clems Akpamgbo-okadigbo & Ors V. Egbe Theo Chidi & Ors (2) (2015)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
The 1st to the 5th respondents on the 5th day of June, 2011 commenced suit No. FHC/ABJ/CS/574/2011 by way of judicial review at the Federal High Court, Abuja division, hereinafter referred to as the trial court, seeking inter alia for an order of prohibition to restrain the 6th respondent, INEC, from issuing the appellants’ certificates of return in respect of the Anambra State House of Assembly Elections for the Ekwusigo, Oyi, Anambra East, Dunu Kofia and Awka North constituencies.
In upholding the preliminary objection of the appellants, being then the defendants, the trial court at page 977 -978 of vol.1 of the record of appeal held as follows:-
“To conclude, I wish to add that this very suit where the plaintiffs want the certificates of return already issued to the defendants and also to compel INEC to swear them in (the plaintiffs) as members of the Anambra State House of Assembly, is a post election action, I earlier said in this judgment that this court cannot enforce the judgment of Kolowole J. by making a consequential orders (sic) for reasons stated above, I hold that this court has no jurisdiction to entertain the plaintiffs originating motion dated 15th June, 2011.
Dissatisfied with the foregoing decision, the plaintiffs filed appeal No. CA/A/177/2012 to the Court of Appeal, Abuja Division, hereinafter referred to as the Lower Court. In a considered judgment delivered on the 8th of November, 2013, the Lower Court allowed the appeal and proceeded to determine the suit in favour of the 1st – 5th respondents.
It is against that judgment of the court that the defendants at the trial court, 1st – 5th respondents at the Lower Court, have appealed to this court.
At the hearing of the appeal, counsel to parties thereto on identifying their respective briefs adopted and relied on same as their arguments for or against the appeal.
The three issues formulated in the appellants’ brief of argument as having arisen for the determination of the appeal read:-
“(i) Whether in view of the Supreme Court’s decision in the case of Hasson v. Aliyu (2010) 17 NWLR Pt.1223 p.547, the trial Court had jurisdiction to entertain Suit No.FHC/ABJ/CS/574/2011 which was filed 50 days after the conduct of the 2011 House of Assembly Election in Anambra State. (The issue relates to Ground of Appeal No.1)
(ii) Whether Suit No.FHC/ABJ/CS/574/2011 as constituted, filed on the 15th day of June, 2011 (50 days after the election) by the 1st to 5th Respondents herein and which questioned the return of the Appellants herein by INEC was a pre-election matter which the trial court had jurisdiction to hear and determine. (This issue relates to Grounds of Appeal No. 2 and 3)
(iii) Whether grounds 1 and 2 of the 1st to 5th Respondents Notice and grounds of Appeal to the Lower Court (found on pages 980 to 985 of the Record of Appeal vol. 1) are competent in law. (This issue relates to Ground of Appeal No.4).”
The 1st – 5th respondents have either adopted the appellants’ foregoing issues in their respective briefs as those calling for determination in the appeal or formulated similar issues differing only in slant. The 6th and 7th respondents did not file any briefs of argument in the appeal. Instead, they cross appealed.
Since it is the appellants who are dissatisfied with the judgment of the Lower Court and seek redress by way of the instant appeal, their grief will be addressed on the basis of the issues they distilled which issues encapsulate their complaints against the Lower Court’s judgment. The Cross Appeals filed by the 6th and 7th respondents would be separately considered.
Arguing the appeal under their 1st and 2nd issues, learned appellants’ counsel submits that in determining whether or not a court has jurisdiction in a matter, it is the plaintiff’s claim that settles the issue. 1st – 5th respondents’ claim at the trial court, it is contended, clearly seeks reliefs against the issuance of certificates of return to the appellants by the 6th respondent. The claim also shows that the suit was filed on 15/06/2011 some fifty days after the election. Such a complaint coming after the conduct of the election and not being a complaint about the nomination and sponsorship of the candidate of a political party for an election can only be post election complaints. Post election complaints, it is argued, are ventilated, by virtue of Section 285 of the 1999 Constitution and Section 133(1) of the Electoral Act 2010 as amended, only at the election petition tribunal.
Besides, learned counsel further argues, the respondents cannot by way of the instant suit, enforce the reliefs they obtained in their earlier suit No.FHC/ABJ/199/2011 against and in the absence of the appellants.
As a whole, contends learned counsel, the Lower Court is wrong in holding that the action of the appellants is competent. The law, statutory and case wise, does not support the Lower Court’s decision. Counsel relies on Aremu II v. Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2119, Hassan v. Aliyu (2010) 17 NWLR (Pt.1223) 547 at 604 and Salim v. CPC (2013) 6 NWLR (Pt.1351) 501 and urges the resolution of both issues in their favour. He prays that the appeal be allowed as well.
Under appellants’ 3rd issue, learned counsel contends that grounds 1 and 2 in 1st – 5th respondents’ Notice of Appeal at the court below, viewed against the background of Order 6 Rule 2(2) and (3) of the Court of Appeal Rules 2011, are incompetent. The particulars of the two grounds, it is contended, are unwieldy and totally unconnected with the complaints in the grounds of Appeal. The particulars supplied in both grounds do not give insight into the nature of the errors complained in the grounds. Being bereft of valid particulars, it submitted, the grounds have become incompetent and liable to be struck out. The Lower Court’s finding in relation to the two grounds at pages 1665 – 1666 of vol. 2 of the record of Appeal, it is contended, being erroneous must be set-aside. Counsel relies on Laah v. Opaluwa (2004) 9 NWLR (Pt 879) 558 in insisting that the two grounds and all arguments proffered pursuant to the two incompetent grounds be struck out.
On the whole, learned appellants’ counsel prays that the appeal be allowed.
In arguing the appeal under their two issues, learned counsel to the 1st – 2nd respondents submits that suit No. FHC/ABJ/CS/574/2011 is a continuation of suit No. FHC/ABJ/CS/199/2011 wherein the 1st – 5th respondents though non-suited in respect of some of their reliefs were all the same granted others. The reliefs granted the 1st – 5th respondents in the earlier suit include the trial court’s declaration that the said respondents are their party’s lawful candidates in the particular elections. Suit No. FHC/ABJ/CS/574/2011 from which the instant appeal emanated, it is submitted, remains a pre-election cause. The essence of the subsequent suit, learned counsel contends, is to obtain the consequential reliefs the trial court denied them suit No. FHC/ABJ/CS/199/2011. The trial court, submits learned counsel, has the power under Section 6(6)(a) of the 1999 Constitution to grant the orders being sought. Citing Amaechi v. INEC 7-10 SC 172 and Odedo v. INEC (2008) 7 SC 75 and further relying on Okadigbo v. Emeka (2012) NSCQR (49) 1026 learned counsel contends that the granting of the orders by the trial court is justifiable. After all, the respondents cannot invoke section 138 of the Electoral Act as amended to obtain the reliefs they otherwise set out to.
In further argument, learned counsel concedes that suit FHC/ABJ/CS/574/2011, was filed some fifty days after the election. He also further concedes that this Court in Hassan v. Aliyu precludes a plaintiff from seeking reliefs in respect of pre-election disputes after the election. The facts of the case at hand, learned counsel however argues, are outside the facts that led to the decision in Hassan v. Aliyu (supra). Learned counsel buttresses his submissions with the decision in Odedo v. INEC (supra).
Concluding, learned counsel submits that in deciding whether or not the trial court has jurisdiction over their claim commenced by way of judicial review, the current position of the law is that, with pleadings having been filed on both sides, the affidavits filed by both sides are to be considered. The Lower Court, it is argued, is right to have assumed jurisdiction on the basis of these processes. Learned counsel commends the decisions of this court in Lado v. CPC (2012) 12 WRN 1 at 14 and Agbakoba v. INEC (2008) 18 NWLR (Pt.1119) 489 as being supportive of this submissions. He urges that the issue be resolved against the appellants.
Under their 2nd issue, learned counsel to the 1st – 2nd respondents submits that the 1st and 2nd grounds in their Notice of Appeal at the court below fully comply with order 6 rule 2(2) and (3) of the Rules of the Court of Appeal 2011. The Lower Court, it is submitted, is correct to have so held. The particulars of the two grounds clearly show that 1st – 5th respondents’ application for judicial review is a pre-election dispute commenced before the elections that took place on 25/5/2011. The particulars of the grounds highlight the trial court’s errors of law in regarding the respondents’ application as a post election issue. In any event, learned counsel contends, no surprise was thrust on the appellants herein who were respondents at the Lower Court. The appellants fully grasped the complaints raised in the two grounds and cannot, it is submitted, rely on the cases they cited to support their contention. The issue and indeed the appeal, urges learned counsel for the 1st – 2nd respondents, should be resolved submitted, against the appellants.
Arguments proffered by the 3rd, 4th and 5th respondents in their respective briefs are tailored along the same lines as those of the 1st – 2nd respondents. We should not bother to reproduce them again.
My lords, learned counsel to the appellants is right that in suits fought on pleadings an objection to the exercise of the court’s jurisdiction is resolved by examining the plaintiffs’ claim alone. Where plaintiffs’ action is commenced by an originating motion, the affidavit in support of the motion is equally relevant in determining whether or not the court has jurisdiction. Learned counsel’s reliance on this court’s decision in Aremu II v. Adekanye (supra) is well informed. See also Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284 and Ibori v. Agabi (2004) 6 NWLR (Pt.868) 78.
In the case at hand, the claim of the 1st – 5th respondents, see their originating process at pages 95 – 96 of vol. 1 of the record of appeal, is inter-alia for:-
“1.(i) An order of prohibition restraining the 1st defendant from issuing to the 2nd to 6th defendants/respondents Certificate of Return in respect of elections into the Anambra State House of Assembly for Edwusigo, Oyi, Anambra East, Dunukofio and Awka North State Constituencies respectively.
(ii) In the event that the Certificates of Return for the constituencies mentioned in paragraph (1) above are already issued to the 2nd to 6th respondents respectively, an order of Certiorari removing the said Certificate into this Court for the purposes of being quashed.
(iii) An order of mandamus compelling the 1st respondent to issue to the applicants their Certificates of Return for their various constituencies listed in paragraph (1) above.”
Paragraphs 8 and 9 of the affidavit in support of the originating motion being equally relevant are herein under reproduced for ease of reference:-
“8. That the plaintiffs campaigned vigorously for the said elections and that while the suit No. FHC/ABJ/SC/199/2011 was pending, the elections was conducted and the plaintiffs and their party, the PDP, won the elections into the Anambra State House of Assembly for the various constituencies listed in paragraph 3 above,
- That following their success in the elections, the plaintiffs demanded for their respective Certificate of Return from the INEC to no avail.”
I am inclined to agree with learned appellants’ counsel that given the foregoing reliefs and facts on the basis of which the reliefs are canvassed, 1st – 5th respondents’ claim, being against the issuance of certificates of return to the appellants by the 6th respondent, is one that questions appellants’ election and return. It is worth the while at this point to reproduce Section 285(1)(b) and (5) of the 1999 Constitution and Section 133(1) and (2)(b) of the Electoral Act 2010 as amended which provide for 1st – 5th respondents’ claim and the tribunal to determine same.
“285(1) There shall be established for each State of the Federation and the Federal Capital Territory one or more election tribunals to be known as the National and State House of Assembly Election Tribunals which shall, to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to where –
(b) any person has been validly elected as a member of the House of Assembly of a State.”
(5) An election petition shall be filed within 21 days after the date of the declaration of result.”
“133(1) No Election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an an undue election or undue return (in this Act referred to as an election petition) presented to the competent tribunal of court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.
(2) In this part “tribunal or court” means:-
(b) In the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act.”
(Underlining supplied for emphasis).
A community application of the foregoing clear and unambiguous statutory provisions to 1st – 5th respondents’ cause of action, which questions the election and return of the appellants by the 6th respondent, clearly shows that the claim is only maintainable as a petition commenced within twenty one days of the return being questioned and at an election petition tribunal. The trial court is obviously not such tribunal. A court of law is said to be competent to entertain and determine a matter placed before it if inter-alia:-
(a) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(b) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
In the case at hand, the Federal High Court not being an Election Petition Tribunal constituted pursuant to Section 285 of the 1999 Constitution as amended does not have the jurisdiction of entertaining and determining 1st – 5th originating motion which questions appellants’ election. Learned appellants’ counsel is therefore right that the Lower Court is in grave error to have held otherwise. The principle is that any defect in competence of the trial court is fatal and persists to disallow the assumption by the appellate court of jurisdiction to determine a matter the trial court in the first place was incompetent to entertain and determine. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Western Steel Works Ltd v. Iron & Steel Workers Union (1986) 3 NWLR (Pt.30) 617 and A.P.C. Ltd v. NDIC (N.U.B Ltd) (2006) 15 NWLR (Pt.1002) 404 at 432.
Addedly, 1st – 5th’ respondents’ claim is for mandatory injunction by way of judicial review of INEC’s, the 6th respondent, administrative actions respect of the election and return of the appellants. Learned counsel to the 1st – 5th respondents’ desperate effort to downplay these characteristics of the claim has not been successful. The Lower Court’s unwillingness to accept these characteristics of the claim for what they are is a dismal feature of the court decision. The claim is electoral in nature and, having been specifically and specially provided for by statute, is in a class of its own. The claimants quest for mandatory injunction by way of judicial review in respect of an election or election related matter belatedly filed some fifty days after the election and at the trial court, instead of the election tribunal which by virtue of 133(1) of the Electoral Act 2010 as amended has exclusive jurisdiction to determine, is not maintainable in law. The action is grossly defective. See ANPP v. Returning Officer, Abia State (2007) 11 NWLR (Pt.1045) 431 at 434 – 435.
In Ohakim v. Agbaso & Ors (2010) 12 (Pt.2) SCM 134 at 169 this court per Onnoghen JSC stated the principle on the point more succinctly thus:-
“It is therefore my view that since the matter went to the Federal High Court by way of judicial review with a prayer for mandatory injunction which is akin to mandamus in the circumstance of this case, and, having regard to the fact that the 1st respondent failed to make a prior demand on the 2rd and 3rd respondents to perform the duty now sought to be compelled, the application for judicial review was consequently fundamentally defective which defect affected the competence of the court to entertain same. By the authority of Madukolu vs. Nkamdilim, supra, a court is competent inter-alia, when the case comes before it initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. It is also settled law that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided; the defect being extrinsic to the adjudication”
The Lower Court should have so insisted in relation to 1st – 5th respondents’ action. The court’s contrary decision is manifestly perverse.
Again, learned counsel to the four sets of respondents cannot be allowed to talk from both sides of their mouth. It is their further contention that since the instant suit is a continuation of their earlier suit No. FHC/CS/199/2011 which suit was commenced prior to the election of the appellants, the cause is maintainable as a pre-election matter. It is argued that the subsequent suit from which the instant appeal arose is necessary for the purpose of acquiring the consequential reliefs respondents applied for but were non-suited in the earlier suit. For more reasons than one, these arguments remain unavailing to the 1st – 5th respondents.
Firstly, this court in its decision on appeal No.SC.713/2013 delivered earlier this morning had nullified the Lower Court’s judgment appeal No. CA/A/593/2011 and suit No. FHC/ABJ/CS/199/2011, from which it arose for want of jurisdiction on the part of the trial court. All courts including this one, by virtue of Section 287(1) of the 1999 Constitution, must enforce the apex Court’s decision. By this court’s decision appeal No.SC.713/2013 therefore, learned respondents’ counsel cannot be right to insist that the suit that brought about the instant appeal is a continuation of that other suit that no longer exists. In Senator Abubukar Saddiq Yar’adua & Ors v. Senator Abdu Umar Yandoma & Ors (2014) LPELR – 24217 (SC) I restated the principle thus:-
“The nullification by this court’s decision in Lado & Ors v. C.P.C & Ors (supra), of the proceedings trial court in suit No. FHC/ABJ/CS/126/2011 therefore, from the angle of the law, means that those proceedings, including all the orders made in the course or consequence of the proceedings, never took place. They are completely wiped off, rendered extinct and deemed never to have existed”
It is partly for the foregoing that respondents’ contention that the instant suit is continuation of suit No. FHC/CS/199/2011, and having been commenced prior to the election of the appellants is competent clearly collapses. You can only continue with that which is in existence and not otherwise. See Labour Party v. INEC (2009) 1 – 2 SC 43.
1st – 5th respondents’ claim in the suit that brought about the instant appeal, as already delineated from their reliefs and facts in support of their originating summons, does not come within the very narrow purview of Section 87 (9) of the Electoral Act 2010 as amended which provides:-
“87. (9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of o political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
In interpreting the foregoing, this court has insisted that complaints on the basis of the section must be commenced prior to the conduct of election otherwise a party’s right thereunder abates except same persists as a ground on which an election or return may be questioned by way of a petition at an election tribunal under Section 138(1) of the Election Act as amended. See Hassan v. Aliyu and Dangana v. Usman (2013) 6 NWLR (pt 1349) 50. In Salim v. C.P.C (2013) 6 NWLR (Pt.1351) 501 at 524- 525, this court per Peter-Odili JSC held thus:-
“… it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time, is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those courts above mentioned as in this instance.”
In Gwede v. INEC (2014) 18 NWLR (Pt.1438) the court at pages 102-103 has even been more forthcoming, It held:-
“It is clear that there are pre-election matters which can come within the grounds for challenging an election under section 138(1) of the Electoral Act, 2010 as amended and other that may not. Where a pre-election matter is one which can be dealt with under section 138(1) (supra), the proper venue, after election, is the tribunal. Where, however the pre-election matter cannot so be accommodated after an election and the cause of action arose in the election or declaration of results and action is instituted timeously, the proper venue remains the High Court. In other words, an issue of qualification to contest an election under the Electoral Act, 2010 (as amended), is both pre-election and an election matter which both the High Court and the relevant Election Tribunals have jurisdiction to hear and determine. See Dangana v. Usman (2013) 6 NWLR (Pt.1349) 50 at 89-90, However, the pre-election matter must be filed in the High Court timeously. See Hassan v. Aliyu (supra).”
The logic in the submissions of learned appellants’ counsel that whichever way one views 1st – 5th respondents’ claim, whether as a pre-election or post election cause, it remains incompetent flows naturally from the foregoing decisions of this court. Their cause is not a pre-election matter having been commenced post the appellants’ election. Again as a ground that can possibly be litigated upon by virtue of section 138 of the Electoral Act but filed well outside the twenty one days within which such petitions should be filed and at the tribunal rather than the trial court which lacks jurisdiction, the action for that further reason remains incompetent. The Lower Court is wrong to have found otherwise. Appellants’ 1st and 2nd issues are resolved against the respondents.
I am however unable to agree with learned appellants’ counsel regarding their 3rd issue. I have closely examined the 1st and 2nd grounds of appeal in 1st – 5th respondents’ Notice of Appeal at the Lower Court the appellants contend are incompetent and that the Lower Court has erred in its decision on the two grounds. It is my considered view that the Lower Court is right. Since the appellants have not been misled by the content of the two grounds, including their unwieldy particulars, there has been substantial compliance with order 6 rule 2 (2) and (3) of the Court of Appeal Rules. The trend these days is for courts to do substantial justice by refusing to cling to technicalities. See Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184 SC. Accordingly, appellants’ 3rd issue is hereby resolved against them.
I find merit in the appeal and allow same.
The 6th and 7th respondents’ cross appeals both of which raise the very issues determined in the main appeal are hereby discountenanced.
On the whole the action at the trial court being incompetent is hereby struck out.
Parties are to bear their respective costs.
SC.714/2013