Hon. Gabriel Yunisa Olofu & Ors. V. Mr. Michael Adejoh Itodo & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Abuja in appeal N0.CA/A/245/2009 delivered on the 17th day of June, 2010 allowing the appeal of the 1st respondent in the first appeal and 4th respondent in the second appeal and dismissing the decision of the High court of Kogi State, Okpo Judicial Division in suit No.OHC/8/2008 delivered on the 7th day of May, 2009.

On the 28th day of August, 2008, the 1st respondent in the 1st appeal and 4th respondent in the second appeal, Mr. Michael Adejoh Itodo took out an originating summons calling for the determination of the following questions:-

i. Whether the claimant who contested for and won the election into the office of Councilor representing Ogugu Ward II Olamaboro Local Government Council, in the Election organized by the 2nd defendant on the 26th July, 2008 could be substituted by the 3rd defendant after the election.

ii. Whether the 2nd defendant either acting alone or in concert with the 1st and 3rd defendants could withhold the claimant’s certificate of return after he had contested and won the election into the office of Councilor for Ogugu Ward II in Olamaboro Local Government Council.

iii. Whether the 1st defendant is entitled to refuse to swear in the claimant who, as the candidate of the 3rd defendant, contested and won election into the office of Councilor representing Ogugu Ward II in Olamaboro Local Government Council.

iv. Whether going by the provisions of Section 56 of Kogi State Local Government Electoral Law, 2004 the 1st to the 3rd defendants can substitute the 4th defendant for the claimant as the councilor representing Ogugu Ward II after election has been contested and won by the claimant in the Local Government election held on 26th July 2008 in Kogi State.

The said claimant sought the following reliefs from the court.

“1. A declaration that the 3rd defendant cannot substitute the 4th defendant for the claimant who contested for and won the election into the office of Councilor representing Ogudu Ward II in Olamaboro Local Government Council in the Election organized by the 2nd defendant on the 26th July, 2008.

2. A declaration that the refusal by the 1st defendant to swear in the claimant along with the other elected councilors on the 30th of July, 2008 is illegal, unconstitutional, null and void and constitutes a flagrant violation of the claimants rights.
3. A declaration that the 4th defendant who did not contest in the election held by the 2nd defendant on the 26th July, 2008 cannot be sworn in by the 1st defendant as the councilor representing Ogudu Ward II in Olamaboro Local Government Council.
4. A declaration that the 2nd defendant cannot withhold the certificate of return of the claimant who contested and won the election into the office of councilor representing Ogugu Ward II in Olamaboro Local Government Council in the election held on the 26th July, 2008.
5. An order directing the 2nd defendant to release to the claimant his certificate of return as the councilor representing Ogugu Ward II in Olamaboro Local Government Council.
6. An order directing the 1st defendant to, forthwith, swear in the claimant as the Councilor representing Ogugu Ward II in Olamaboro Local Government Council the claimant having contested and won the election into the Councillorship seat of Ogugu Ward II in the Local Government Council election held on the 26th July,2008.
7. An order of injunction restraining the 1st to the 3rd defendants either by themselves, their agents, privies otherwise howsoever from putting forward and swearing in the 4h defendant or any other person other than the claimant as the councilor representing the Ogugu Ward II in Olamaboro Local Government Council.
8. An order of injunction restraining the 4th defendant parading, representing and or howsoever putting himself forward as the councilor representing the Ogugu Ward II in Olamaboro Local Government Council”.

On the 20th day of January, 2009 the 2nd defendant, who is also the appellant in the second appeal, filed a preliminary objection praying the trial court for inter alia.:

“An order striking out the suit for want of jurisdiction”

While the above objection was pending, the 1st, 3rd and 4th, defendants, who are the appellants in the first appeal before this court, filed a preliminary objection on the 8th day of April, 2009 praying the court for:

“An order striking out this suit for being incompetent and this honourable court lacks the jurisdiction to entertain it, as the matter is an intra party, political and domestic dispute of the 3rd appellant which the court have no jurisdiction to entertain.”

In a considered ruling on the objections, the learned trial judge held that the action seeks to challenge the return of the 4th defendant by the 2nd defendant and that the High Court of Kogi State lacks the jurisdiction to entertain same.

The above decision resulted in an appeal in which the lower court upturned the decision of the trial court and proceeded to enter judgment for the claimant/appellant before that court in terms of the reliefs earlier reproduced in this judgment. It is against the said judgment that the appellants have appealed.

Learned counsel for the appellants in the 1st appeal, BIRIYAI DAMBO ESQ in the appellants’ brief of argument filed, on the 29th day of October, 2010 has identified the following issues for determination:

“1. Whether from the peculiar facts of this case the lower court was right to have come to the finding that the case before it is that of wrongful substitution and not undue return as pronounced by the trial cout.

2. Whether the learned trial (sic) Justices of the Court of Appeal were right in allowing the appeal when in fact from the peculiar facts before the court it is a post election matter in which the Election Tribunal has exclusive jurisdiction.
3. Whether the Court of Appeal properly exercised its powers under Section 15 of the Court of Appeal Act, Cap 36 Laws of the Federation of Nigeria, 2004 (formerly Section 16) by granting all the reliefs sought by the 1st respondent as contained in his originating summons.”

In respect of the 2nd appeal, learned counsel for the appellant, OLUWAKEMI BALOGUN ESQ in the appellant brief filed on 11th October, 2010 formulated the following issues for determination: ”

(a) Whether the learned justices of the Court of Appeal were right in holding that the trial court had jurisdiction over the suit. This issue is distilled from Ground 1 of the Notice of Appeal.

(b) Whether the learned justices of the Court of Appeal were right in invoking section 16 of the Court of Appeal Act to hear the case giving the peculiar facts and circumstances of this case. This issue is distilled from Grounds 2, 3, and 4 of the grounds of Appeal”.

It is clear from the above that the issues in the two appeals are very similar. It is clear that though the preliminary objection of the appellant in the 2nd appeal is based on the matter being a post election matter which is within the exclusive jurisdiction of the Local government Election Tribunal, that of the appellant in the 1st appeal is based on the issue being an intra party dispute which is outside the jurisdiction of the courts.

On his part, learned counsel for the 1st respondent in the 1st appeal and 4th respondent in the 2nd appeal, ABDULAHI M. ALIYU ESQ, in the brief of argument filed on 2nd November 2010 identified the following as the issues calling for determination in the appeals:-

“i. Whether the learned Justices of the Court of Appeal were right to hold that the High Court, as against the Local Government Election Petition tribunal was the proper forum to try the 1st respondent’s case (Grounds 1 and 2 of the notice and grounds of appeal).

ii. Whether the Court of Appeal properly exercised its power in determining this case on the merit in view of the peculiar circumstances of the case (Grounds 3 and 4 of the notice and grounds of appeal)”

Looking closely at the facts of this case and the decisions of the lower courts, only two issues call for determination in the appeals namely:

“i. whether the trial court has jurisdiction to hear and determine the action as constituted, and,

ii. Whether the lower court was right in invoking its powers under Section 15 of the Court of Appeal Act to hear and determine the matter,”

In arguing issues 1 and 2 of the 1st appeal together, learned counsel for the appellant submitted that the processes relevant for the determination of the issue of the jurisdiction of the trial court in this matter are the originating summons and the affidavits in support of the originating summons, as the court will not examine a counter affidavit if any had been filed relying on INAKOJU VS ADELEKE (2007) 4 NWLR (Pt.1025.) 427 at 588 – 589; that looking at the reliefs claimed and the facts disclosed in the affidavits in support, it is clear that the case before the court is not that of “wrongful substitution” as held by the lower court but of “undue return” as found by the trial court and for which the courts have no jurisdiction, not being election tribunal.

It is the further submission of learned counsel that the law regulating local government election in Kogi State is the Local Government Election Law 2004 Section 23 of which provides for substitution of candidates within five days of the date of election by political parties; that following the decision of the court in ONUOHA VS OKAFOR (1990 2 SCNLR 244, the issue as to who a political party chooses as its candidate in an election is purely an intra party political and domestic dispute over which the courts have no jurisdiction; that Section 23 of the Kogi State Local Government Law 2004 is permissive while Section 34 (1) of the Electoral Act 2006 is mandatory, that the facts of the case disclose that the matter before the court is a post election matter in which exclusive jurisdiction is vested in the local government election tribunal; that a court cannot compel a political party to sponsor one candidate in preference to another, relying on

ONUOHA VS OKAFOR supra.

It is the further submission of learned counsel that the lower court was in error when it held that the election tribunal has no jurisdiction over the matter since it does not fall within the provisions of Section 74 of the Local Government Elections Law, 2004 as a party to an election petition under the law can question the said election on the ground that the same was not conducted in compliance with the provisions of the law, which is basically the main point in the complaint before the trial court, and urged the court to resolve the issues in favour of the appellant.

The argument of learned counsel for the appellant in the 2nd appeal on the issue is very similar to that of counsel for appellant in the 1st appeal earlier summarized in this judgment I therefore see no need to reproduce same herein.

On his part, learned counsel for the 1st respondent submitted that the lower court was right in holding that the issue before the trial court was that of wrongful substitution as opposed to undue return. Learned counsel agreed that in determining the issue of jurisdiction it is the claim of the plaintiff that ought to be looked at; that the complaint before the trial court is as stated in paragraphs 18 – 23 of the 1st respondent’s affidavit at page 7 of the record and that it involves the attempt at substituting the 1st respondent after an election he won; that Section 23 of the Kogi State Local Government Election Law lays down the conditions to be fulfilled by political parties when seeking substitution of candidates before an election and that a complaint of non compliance with that provision falls outside the jurisdiction of an election tribunal but within the jurisdiction of the High Court as held by the lower court; that the fact that an action was filed after an election does not make the action a post election matter as jurisdiction is determined by the nature of the complaint before the court; that Section 74 of the Kogi State Local Government Election Law does not apply as the complaints of the 1st respondent do not fall within the grounds for questioning an election particularly as the 1st respondent did not complain about the conduct of the election as he was satisfied with it; that the facts of this case are not different from that in Amaechi vs INEC and Ugwu Vs Ararume and that the case of Onuoha Vs Okafor; Jang Vs Abana do not apply where the names of the complaining persons were not sent to the electoral bodies concerned; that the word “may” in Section 23 of the Kogi State Local government Election Law is not permissive as contended by the appellants but places a duty on political parties wanting to substitute candidates to give at least five days notice to the electoral commission before the election, relying on Adesola vs Abidoye (1999) 14 NWLR (Pt.6371 28 at 56: Bakare vs A-G.F (1990.) 5 NWLR (PT.152) 5/6 and urged the court to resolve the issue against the appellant.

It should be noted from the onset that the issue is simply whether the trial court has jurisdiction to entertain the matter as constituted not whether the case of the 1st respondent has merit.

It is settled law that jurisdiction is fundamental to adjudication and it is usually conferred on the court by the constitution or statute; it is really the foundation on which the court exercises judicial powers. A proceeding, however well conducted remains a nullity if the court lacks the requisite jurisdiction to hear and determine the matter.

Also settled is the principle of law that in order to determine whether a court before which a matter pends has the jurisdiction to entertain same, the court has to look at the plaintiff’s statement of claim before it and not the defence put forward by the defendant to the action. The claim of the plaintiff in an action includes the originating summons and the affidavit(s) in support of same where the action is instituted by originating summons as was decided by this court in the case of Inakoju vs Adeleke (2007) 4 NWLR (Pt.1020) 427 at 588 – 589.

I had earlier reproduced the questions to which the 1st respondent, as plaintiff, sought answers at the trial court as well as the reliefs claimed by him. What are the facts relevant to the grant of the reliefs so claimed For that, paragraphs 6 – 27 of the affidavit in support of the originating summons are relevant and are reproduced hereunder as follows:-

“6. That sometime this year, the 2nd defendant fixed elections into Local Government Councils in Kogi State for the 26th day of July, 2008.

7. That as a member of the People’s Democratic Party, applied to contest for the office of Councilor for Ogugu Ward II in at the Ward level of my Party in line with the party’s Constitution.
8. That in line with the said Constitution, I was nominated by the party as the candidate nominated by her to contest for the scheduled Local Government Election on her platform.
9. That I annex a copy of the letter by the 3rd defendant, dated the 26th June, 2008, forwarding my name to the 2nd defendant and mark it as Exhibit “B”.
10. That upon my said nomination, I completed and submitted SIEC nomination form, particularly, form KGSIEC 4F wherein I was endorsed by 10 (ten) registered members of over party in the ward, photocopy of the said nomination form is attached herewith as Exhibit “C”.
11. That the 2nd defendant, upon the receipt of Exhibit “C”, screened me and invited me for final documentation.
12. That the 2nd defendant finally cleared me to contest the election of 26th July, 2008.
13. That the letter written to me by the 2nd defendant inviting me for final documentation, dated 21st of July, 2008 is hereby annexed and marked as Exhibit “D”
14. That the 2nd defendant accepted my nomination vide KGSIEC form 011283 which is herewith annexed as Exhibit “E”.
15. That immediately before the election, the 3rd defendant published and pasted the names of the persons cleared to contest election into the Olamaboro Local Government Council and my name was the 9th on the list. I annex a copy of the list and mark it as Exhibit “F”
16. That on the 26th day of July, 2008 I contested the election into councillorship seat of Ogugu Ward II under the platform of the 3rd defendant.
17. That i won the said election under the platform of the People’s Democratic Party (P.D.P).
18. That when I went along with the other councilors elected under the platform of the 3rd defendant, the chairman of the 2nd defendant refused to issue me with the certificate of return.
19. That on inquiry, the chairman of the 2nd defendant informed me that he has received instruction from the chairman of the 3rd defendant not to give me my certificate of return.
20. That later, I discovered that the chairman of the 3rd defendant is trying to substitute the name of the 4th defendant for my name as the councilor elect for Ogugu Ward II.
21. That his substitution is taking place after the election has been held and result announced in my favour.
22. That on the 30th day of July, 2008, the 1st defendant swore in the other councilors who were elected along with me.
23. That the 1st defendant refused to swear me in the grounds that he had received instruction from the chairman of the 3rd defendant not to swear me in.
24. That i have now discovered that the 1st, 2nd and 3rd defendants have concluded arrangement to swear in the 4th defendant as the councilor representing Ogugu Ward II when he did not contest the election for Councilor of that Ward.
25. That I know as a fact that at all time material, it was my name that was published by my party and the office of the 1st defendant as the candidate for (P.D,P) in the councillorship election of Ogugu Ward II of Olamaboro Local Government Area.
26. That I know as a fact that the 4th defendant’s name did not appear in any of the lists of contestants issued by the 2nd and 3rd defendants.
27. That I know as a fact that the 1st to the 3rd defendants are only trying to substitute the name of the 4th defendant for my name after the election has been won by me.”

Going through the above facts and the reliefs claimed by the 1st respondent, the trial could came to the conclusion that the claim before the court is that of undue return and not wrongful substitution and as such the court with the requisite jurisdiction is the Local Government Election Tribunal not the High Court. It is that decision that was set aside by the lower court. The question is which of the two courts is right

Both counsel have referred the court to the provisions of the Kogi State Local Government Electoral Law, 2004 particularly Section 59; 70; 71 and 74 thereof, in support of their contending positions’ Learned counsel for the parties have also referred the court to Section 23 of the said law which provides as follows:-

“Any political party which wishes to change any of its candidates for any election under this law may signify its intention in writing to the commission not later than five (5) days to the date of election”.

The appellants have relied on the above provision to argue that the courts have no jurisdiction to entertain any matter challenging the substitution of a candidate by a political party for a local government election and that the use of the word “may” in the said section of the law makes the provision permissive and not obligatory or compulsory The 1st respondent however does not agree, He contends that nominated candidates whose names had been forwarded to the electoral commission acquire justiciable right which can be enforced by action in court.

It is not disputed that a political party has the power to nominate a candidate for any election without interference from the court, the matter being strictly within the domestic jurisdiction of the political parties. That has been the position of the law as recognized in the case of Onuoha vs Okafor supra; Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 300; Jang vs. INEC (2004) 1 NWLR (Pt.886) 146 etc,.

However, when it comes to the question of substituting another person (candidate) for the nominated candidate, the law now lays down certain conditions which the political party seeking the said substitution has to fulfill to make the venture a success.

Under Section 34 of the Electoral Act 2006, the political party has to inform INEC of the change in writing not later than sixty(60)days to the election in question and must give cogent and verifiable reasons for desiring the change or substitution – See Amaechi vs INEC (2008) 1 S.C (Pt.1) 36: Ugwu vs. Ararume (2007) 12 NWLR (Pt.1048) 367; Agbakoba v. INEC (2008) 18 NWLR (Pt.1119) 489 etc, etc.

Whereas Section 34 (1) of the Electoral Act 2006, stipulates that the substitution must be made within sixty (60) days to the election, section 23 of the Kogi state Local Government Elections Law, 2004 stipulates that for the intended substitution to be effective or legal, it should be made within five (5) days to the election in question.

The argument of the appellants is that the said provision is not mandatory but permissive. I do not agree with that interpretation. Even though the word “may” is used in Section 23 supra, the word does not relate to the time within which the substitution is to be effected (which is stated therein to be five (5) days) but relates only to the intention of the political party concerned which desires the change or substitution. Such a political party “may” signify its intention within the stipulated time, if it so desires or aborts same. The section does not mean that a political party is at liberty to effect a substitution of a nominated candidate less than five days to the election or even after the election. Any political party that fails to comply with section 23 of the law has by that act conferred or activated the jurisdiction of the court to protect the right conferred on the nominated candidate earlier submitted to the electoral body. To hold otherwise is to engineer a return to the dark days when substitution could be made even during the election or thereafter. We must always remember that our laws are meant to be obeyed for the benefit of the society since that is the only way to ensure certainty, peace and progress, equity, fairplay, and the rule of law.

The words of the section and the con in which they appear make the provisions of Section 23 of the law in question very clear and unambiguous thereby needing no interpretation whatsoever as it is settled law that where the provisions of a statute are clear and unambiguous the court is to apply them as they are as there is nothing to be interpreted. The next sub-issue is whether the action before the trial court is concerned with wrongful substitution or undue return.

By constitutional arrangements election matters are the exclusive concern of election tribunals and not the regular courts. However, where the matter involves issues of pre-election, the regular High courts have jurisdiction to handle them.

In the instant case, there is no dispute that the 1st respondent was duly nominated and submitted to the electoral body as the candidate of the Peoples Democratic Party for the election in question; that he was duly screened and cleared by the electoral body to contest the said election which he did and claimed to have won; that after the election the chairman of Kogi State Independent Electoral commission refused to release the certificate of return of the 1st respondent on the ground that the party (P.D.P) intended to substitute the 1st respondent with another candidate (the 3rd appellant).

From the above facts it is very clear that this is a post election matter as there was an election duly conducted by the appropriate authority on the 26th day of July, 2008 and which by Exhibit “2”; the certified true copy of the result of the election; the 1st respondent won. At that stage it is too late to be talking of nomination of a candidate for the election in question, which is purely a pre-election matter. It should be noted that nomination is either by the original act of the party or by way of substitution. From the record, particularly Exhibit “2”, election had been concluded and the name of the candidate who won same is the 1st respondent. It follows therefore that appropriate venue for the trial of the issues arising from that concluded election is the appropriate election tribunal, not the regular High courts. It is at the tribunal that the electoral body concerned is to tell Nigerians why the respondent who contested and won the election to issue is refused a certificate of return which certificate it rather issued to total stranger, 3rd appellant This clearly is a case of undue return of the 3rd appellant who was not even a candidate at the election, by the case of the 1st respondent, not wrongful substitution. If there was any such substitution in accordance with the provisions of section 23 of the law, the name of the 1st respondent would not have been reflected in Exhibit “2”.

When one looks closely at the reliefs, in the originating summons, it is very clear that what the 1st respondent seeks is a realization of the mandate given to him by his people by the court tribunal making the appropriate orders including issuance of a certificate of return, swearing him in as the duly elected councilor etc, etc. It has nothing to do with wrongful substitution. From the record the issue of substitution is very speculative as Exhibit “2” clearly contains the names of the respondent as the winner of the election in question.

On the issue as to whether the lower court properly exercised its powers under Section 15 of the Court of Appeal Act, 2004, I hold the considered view that the issue has been overtaken by events in view of the fact that I have held that the proper venue for the trial of the complaint(s) in the originating summons is the appropriate election tribunal not the High Court.

It follows therefore that since the High court has no jurisdiction in the matter, the lower court lacks jurisdiction to hear and determine the matter under Section 15 of the Court of Appeal Act, 2004 and that any purported exercised of that power in the circumstances of this case is a nullity. The provision enacts as follows:-

“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect for error in the record of appeal, and may direct the court below to inquire into and certify its findings on any position which the Court of Appeal thinks fit to determine before final judgment in the appeal’ and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of the court or in the case of an appeal from the court below, in that courts’ appellate jurisdiction, order the case to be re-heard by a court of complete jurisdiction”.

It is very clear from the above provisions that the reviews of the Court of Appeal provided therein is dependent on the trial court either sitting as a court of first instance or exercising its appellate jurisdiction, having the requisite jurisdiction to entertain and determine the matter in the first place. Where the trial court has no jurisdiction to hear and determine the matter, as found in the instant case, the Court of Appeal will be without jurisdiction to invoke and act on its powers under the said section of the Act. In the circumstance, issue 3 of the appellant in the 1st appeal and Issue 2 in the second appeal are hereby discountenanced by me.

It is important to state that it is in the interest of democracy that urgent steps be taken by the Government of Kogi State to set up a Local Government Election Tribunal to urgently resolve the issues involved in this case to sustain the continued confidence of the electorate in the system. On the other hand the Government of Kogi State, Peoples Democratic party, and the State INEC should put their heads together to put things right in the interest of the growth of democracy in this nation and to save all of us the embarrassment, before the community of nations, of having a person who was not nominated nor properly substituted for a nominated candidate let alone contesting and winning an election being forced on the people as their representative; that will be making a mockery of our democratic institutions and should not be encouraged. We need to strengthen the confidence of our people in our democratic process which must begin from within the political parties themselves and at the grass-root government. We must learn to always do the right thing no matter what, else, we will fail in the process.

I also need to comment on an emerging but disturbing practice before this court where parties named as respondents to an appeal rather than filing the traditional respondent brief to either defend the judgment on appeal or concede the appeal, now file an appeal against the said judgment on the same grounds and raising the same issues as the original appellant and leaving the initial appeal undefended by them, that is by not filing a respondent brief thereto. I strongly think that legal practitioners should arrest the present trend for the benefit of the profession.

In conclusion, I find merit in the appeals which are hereby allowed by me in terms of the issues as resolved in this judgment. The judgment of the lower court in appeal No.CA/A/245/09 delivered on the 17th day of June, 2010 is hereby set aside and in its place it is hereby ordered that the ruling of the trial court in suit No.OHC/08/08 delivered on the 7th day of May, 2009 be and is hereby restored and affirmed.

I however make no order as to costs.

Appeals allowed.

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SC.302/2010