Chief Ikedi Ohakim V. Chief Martin Agbaso & Ors. And Senator Ifeanyi Araraume V. Inec & Ors & Ikedi Ohakim V. Chief Martin Agbaso & Ors (2010)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
There are three appeals involved in this judgment. Appeal No. SC/3/2010 concerns the ruling of the Court of Appeal, Holden at Abuja, in appeal No. CA/A/244/2007 on the preliminary objections filed by the appellant, the 2nd, 3rd and 4th respondents herein challenging the jurisdiction of the Court of Appeal in the appeal filed by the 1st respondent herein. The ruling was delivered on the 26 day of February, 2009, dismissing the said objections.
After overruling the objections, the lower court proceeded to hear and determine the appeal on the 16th day of December, 2009 by allowing same and remitting the matter to the Federal High Court for hearing and determination on the ground that that court has jurisdiction to entertain same. Appeal NOS. SC.51/2010 and S.C/54/2010 are therefore against the judgment on the merit of the appeal, delivered on the 16th day of December, 2009.
The facts giving rise to this appeal are simple and straight forward. They include the following:
On the 14th day of April, 2007 Governorship and State House of Assembly elections were conducted in Nigeria, including Imo State, by the 2nd respondent (INEC) which has the Constitutional responsibility to do so. At the conclusion of the election, the 2nd and 3rd respondents upheld and/or validated the results of the State House of Assembly election in Imo State while the election in relation to the Governorship of Imo State was cancelled. The reasons for the alleged cancellation were given by the 3rd respondent to include violence, thuggery etc in 9 out of 27 local Government Areas of Imo State. The election results upheld by the 2nd and 3rd respondents in respect of the State House of Assembly of Imo State also held on 14th April, 2007 included the results declared in the 9 Local Government Areas allegedly affected by thuggery, violence and other electoral offences. In both elections, the same ballot boxes, officials etc, were used in the conduct of the elections of 14th April, 2007. Appellant, 1st respondent and other candidates contested the Imo State Governorship election of 14th April, 2007 which, as earlier stated, was cancelled by the 2nd and 3rd respondent s for being inconclusive.
Meanwhile, the 2 and 3 respondents rescheduled Imo State Governorship election for the 28th day of April, 2007.
On the 19th day of April, 2007, the 1st respondent instituted an action at the Federal High Court, Abuja by way of judicial review, in which he claimed the following reliefs:-
(a) A DECLARATION that the Respondents lack the power to cancel the Imo Stale gubernatorial elections under the Electoral Act, 2006.
(b) A DECLARATION that the Respondents lack the power to cancel the Imo State Gubernatorial election results and/or the election held on 14th April, 2007, while upholding the House of Assembly elections conducted simultaneously with the said gubernatorial election.
(c) A DECLARATION that the cancellation of the said gubernatorial election conducted by the by the Respondents in Imo State on 14th April, 2007 is unreasonable, unlawful, illegal, arbitrary, unconstitutional, null and void.
AN ORDER setting aside the cancellation of the said gubernatorial election by the Respondents.
(e) AN ORDER OF MANDATORY INJUNCTION directing the Respondents to forthwith continue and complete the process of conducting the Imo State gubernatorial elections where the Respondents stopped and in accordance with the provisions of the Electoral Act 2006 and Constitution of the Federal Republic of Nigeria 1999; to wit, to collate and declare the results at the state level.
Meanwhile, the 1st respondent together with other contestants, including the appellant, participated in the re scheduled Imo State Governorship election held on the 28th day of April, 2007 in which the appellant was returned or declared elected by the 2nd and 3rd respondents. Following the declaration of the above result, the Federal High Court struck out suit NO. FHC/ABJ/M/269/2007, the action for judicial review, on the 30th day of April, 2007 on the ground of lack of jurisdiction, an election haven been held and the result declared in relation to the matter.
1st respondent was dissatisfied with that ruling and consequently appealed against same to the Court of Appeal, Holden at Abuja, on the 14th day of May, 2007. In addition to the appeal, the 1st respondent filed an election petition on the same 14th May, 2007 at the Election Tribunal in which he claimed the following reliefs:-
i. A declaration of the Honourable Tribunal that the 2nd and 3rd Respondents have no powers or jurisdiction to cancel or nullify the result of the Governorship election held in Imo State on 14th April, 2007 and fix another election for 28th April 2007.
ii. A declaration of the Honourable Tribunal that the cancellation by the 2nd and 3rd Respondents of the result of the Governorship election held in Imo State on 14th April, 2007 is unlawful, illegal, null and void and the subsequent fixing and holding of another election on 28th April, 2007 is unlawful, illegal, null and void.
iii. A declaration of the Honourable Tribunal that the petitioner is the elected Governor of Imo State having won the majority of lawful votes cast at the election of returned by the 3rd Respondent.
iv. A declaration that the cancellation of the Gubernatorial election held in Imo State on 14th April, 2007 and the fixing and holding of another Gubernatorial election for Imo State on 28th April, 2007 were invalid and not in compliance with the provisions of the Electoral Act, 2006.
v An order of the Honourable Tribunal setting aside the election of 28th April, 2007 into the office of Governor of Imo State and the returning the 1st Respondent thereby made.
vi An order of the Honourable Tribunal that the Petitioner has fulfilled all the Constitutional requirements for the election into the office of Governor of Imo State and has been indeed so elected on 14/4/2007.
Objections were raised by the respondents in the petition resulting in a ruling delivered by the Tribunal on the 26th day of July, 2007 as a result of which the petition was dismissed. The 1st respondent’s appeal to the Court of Appeal against the said dismissal was also dismissed.
Haven exhausted his rights by way of election petition, the 1st respondent turned his attention to the pursuit of his action by way of judicial review, to wit, the appeal against the order of the Federal High Court, Abuja, striking out his suit on 30th April, 2007 for lack of jurisdiction.
At the Court of Appeal, appellant and the other respondents therein challenged the jurisdiction of the court to hear and determined the appeal against the ruling of the Federal High Court of 30th April, 2007 which was overruled in a ruling delivered by that court on 26th February, 2009. There was an appeal to this Court against that ruling. It was appeal No. S.C/59/2009 which was later withdrawn and this Court directed the lower court to determine the matter expeditiously.
It is the final judgment of the lower court on the appeal that was delivered on 16th December, 2009 which forms the basis of appeal NOS. SC/51/2010 and S.C/54/2010 while S.C/3/2010 is based on the interlocutory ruling of that court delivered on 26th February, 2009 on the objection of the appellant as to the jurisdiction of the lower court to entertain the appeal.
The issues formulated by learned Senior Leading Counsel for the appellant, in S.C/3/2010, CHIEF BON NWAKAMMA, SAN in the brief of argument filed on 31/3/2010 are as follows :-
(i) Whether the Court of Appeal considered all the issues submitted to it by the Appellant and, if it did not, whether its failure to consider all the issues submitted by the Appellant did not occasion a breach of the Appellant’E2’80’99s right to fair hearing (Grounds 1 and 3 of Appeal).
(ii) Whether the Court of Appeal was in law right to have rendered decisions or made pronouncements at an interlocutory stage, in respect of matters the Federal High Court, Abuja would adjudicate on, if the appeal to the Court of Appeal succeeds (Grounds 4, 6 and 7 of Appeal).
(iii) Whether the Court of Appeal was right in law to have treated a complaint on issue Estoppel as one based on Res Judicata (Ground 9 of the Appeal).
(iv) Whether the Court of Appeal was right in its application of the doctrine of lis pendens against
the 2nd and 3rd Respondents (Grounds 4, 5, 8 and 10 of the Appeal)
(v.) Whether the Court of Appeal was right in holding that the objection did not establish a case of abuse of court process against the 1st Respondent (Grounds 2 and 12 of the Appeal).
(vi) Whether the appeal in the Court of Appeal was not caught by the doctrine of waiver (Ground II of Appeal).
(vii) Whether the application for Judicial Review upon which the appeal in the Court of Appeal was predicated was not incompetent (Ground 13 of Appeal).
On his part, Learned Senior Counsel for the 1st respondent, CHIEF WOLE OLANIPEKUN, SAN in the brief of argument filed on 28/4/2010 submitted the following four issues for the determination of the appeal:-
(a)Was the court below under a duty to specifically determine all the points raised by the appellants in the motion to strike out the appeal for lack of jurisdiction (See grounds 1, 2 and 3 in the Notice of Appeal dated 11 January 2010)
b. Did the Court of Appeal by the Ruling determine the life issues in the substantive appeal (See Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal dated 11 January 2010.
c. Did the Court of Appeal Correctly resolve the issue raised in the Preliminary Objection challenging the jurisdiction of the Court to entertain the Appeal before it.
(See Grounds 9, 10, 11 and 12 in the Notice of Appeal dated 11 January 2010).
d. Did the Court of Appeal correctly assume the jurisdiction to hear and determine the appeal (See Ground 13 of the Notice of Appeal).
Learned Senior Counsel for the 4th respondent, L.O. FAGBEMI ESQ, SAN submitted the following issues for determination in the brief of argument filed on the 28th day of April, 2010:-
- Whether having regard to the peculiar facts and circumstances of this case, the appeal before the Court of Appeal has become an academic exercise
- Whether the appeal before the Court of Appeal has been caught by any rule of estoppel
- Whether the appeal before the Court of Appeal is an abuse of court process. And
- Whether the action of the 2nd and 3rd Respondents in conducting the election of the April, 2007 during pendency of this suit is not caught by the doctrine of lis pendens
I have to point out that no brief of argument was filed on behalf of the 2nd and 3rd respondents though at the oral hearing of the appeal on the 13th day of May, 2010, learned Senior Counsel for the 2nd and 3rd respondents, ALHAJI ABDULLAHI IBRAHIM, SAN informed the court that the 2nd and 3rd respondents are not contesting the appeal and urged the court to allow same.
The issues for determination in S.C/51/2010 as formulated by the learned Senior Counsel for the appellant , L.O. FAGBEMI ESQ, SAN in the appellant’s brief filed on the 13th day of April, 2010 are as follows:
Whether the Court of Appeal was not in error in failing to pronounce on the propriety of the election conducted during the pendency of law suit Ground 2; and
- Whether the election of 28th April, 2007 should stand, same having been conducted during the pendency of a law suit (Ground 1).
It should be noted that the above issues are said to arise from the decision of the lower court allowing an appeal against the decision of the trial court made on the 30th day of April, 2007, striking out the action instituted by the 4th respondent for judicial review on the ground that the said trial court had no jurisdiction in the matter, an election haven taken place. The appeal, before the lower court therefore, was simply whether the trial court had jurisdiction to entertain the suit as constituted or not. It had nothing to do with the merit of the action before the trial court which the lower court in fact, ordered the trial court to proceed to hear having found/held that the court had jurisdiction to hear the matter.
The issue is clearly the substance of the case put forward by the 4th respondent herein before the trial court, and which court is yet to determine, yet learned Senior Counsel for the appellant wants this Court, to determine it even when the lower court made no decision thereon. It is unfortunate because if one is not careful, he can be misled by learned Senior Counsel to do what is clearly not permissible by law. I wonder the motive.
In respect of S.C/54/2010, the issues identified in the appellant’s brief of argument filed by learned Senior Counsel, CHIEF BON NWAKAMMA, SAN are as follows:’
- Did the Lower Court not misdirect itself when it held that parties including the Applicant did not dispute the jurisdiction of the Federal High Court to hear the Application for Judicial Review by the 1st Respondent in this Appeal (Ground one of the Appeal).
- In all the circumstances of this matter, was the lower court correct when it held that the Trial Court was in error to have struck out the Application for Judicial Review on the ground that the matter inured in favour of an election Tribunal (Ground two of the Appeal).’
However, in view of the fact that S.C/51/2010 and S.C/54/2010 are appeals against the judgment of the lower court on the merit of the appeal against the decision of the trial court rendered on the 30th day of April, 2007 striking out the application for judicial review while appeal No. S.C/3/2010 deals with the ruling of the lower court on an application challenging the jurisdiction of the lower court to hear and determine the appeal in question, it is my considered view that in the circumstances of the appeals, it is more convenient to start with appeal No. S.C/3/2010 before proceeding any further, if need be, to deal with or consider the other appeals.
When one looks at the issues for determination in S.C/3/2010, it is obvious that some of them challenge the jurisdiction of the lower court to hear and determine the appeal while others relate to the merit of the ruling on the other grounds canvassed in argument of the preliminary objections.
It is settled law that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the court or tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding.
Without jurisdiction, the whole trial or proceeding of the court is a nullity however well conducted, that is why jurisdiction is very vital and fundamental to administration of justice in any judicial system. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ike v. Nzekwe(1975)2 S.C 1.
For a court of law or tribunal to have jurisdiction to hear and determine any matter before it, it must satisfy the now settled conditions or have the following ingredients:-
(a) it must be properly constituted as to the number or qualification of its membership;
(b) any condition precedent to its exercise of jurisdiction must have been fulfilled;
(c) the subject matter of the case must be within its jurisdiction; and,
(d) the case or matter must have been brought to the court by the due process of the law. See Madukolu v. Nkemdilim supra, etc.
It is also settled law that the jurisdiction of the court is determined by the plaintiff’s claim as disclosed in the writ of summons and/or endorsed in the statement of claim, rather than the defendant’s Statement of Defence. See Tukur v. Govt Of Gongola State (No.2) (1989) 4NWLR(pt 117) 517 etc, etc.
In the instant appeal, part of arguments on issue and the argument on issue VII challenge the jurisdiction of the court by contending that the action as instituted is competent thereby robbing the court of the jurisdiction to entertain same. The 1st respondent in his issues (a) and (d) respectively. It is therefore approbate to begin the Condon of the appeal by resolving the above issues being very fundamental to the competence of both the action and the court to entertain same.
In arguing issue 1, learned Senior Counsel for the appellant submitted that the originating motion filed by the 1st respondent at the Federal High Court, Abuja was incompetent in that 1st respondent failed to comply with the provisions of the Federal High Court Rules; that the lower court noted the argument preferred to support the issue but made no decision on the issue; that the 1st respondent as applicant, did not comply with the provisions of Order 47 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2000 in that he failed to specify the grounds and facts of the application, contrary to the provisions of Order 47 Rule 5(3) of the said Rules of court, the Notice of Motion was not served on the 2nd respondent directly; that the motion papers were served more than three days after rang contrary to the orders of the court upon grant of the ex-parte order of leave to present the application; that applicant failed to file an affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the Notice of Motion before the motion was entered for hearing. Contrary to the provisions of Order 47 Rules 5(6) of the said Rules of court, etc; that failure of the lower court to resolve the issue touching on the validity of the originating process robbed the appellant of his right to fair hearing by having his case fully determined by the court, relying on the case of Otapo v. Sumonu (1987) 2 NWLR (Pt.58) 587 at 605; Titiloye v. Olupo (1991) 7 NWLR (pt.205) 519 at 529.
On is part, learned Senior Counsel for the 1st respondent, CHIEF WOLE OLANIPEKUN SAN, submitted that it is within the province of a court to formulate and reformulate issues(s) formulated by a party or parties in order to give clarity to the issues to be determined, relying on Okoro v. State (1988) 5 NWLR (pt.94) 255; Anojugbagbe Light industries ltd v. Chinukwe (1995) 4 NWLR (pt.3990) 372 Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria v. Ugbobia (2003) 2 NWLR (Pt. 804) 399; Unity Bank Plc vs. Bokari (2008) 7 NWLR (Pt. 88) 372 at 401; Dada v. Dosunmu (2006) 18 NWLR (Pt 1010) 134 at 156; Amah v. Nwankwo (2007) 12 NWLR (Pt. 1049) 552 at 572; that the appellant’s complaint is frivolous as an appellate court can prefer any issue(s) formulated by any of the parties; that the grounds of objection relied on by the appellant are the same with those of the other respondents to the appeal; that the striking out of the proceedings by the trial court was not due to defects in the institution of the action but on grounds of absence of jurisdiction; that the issue of competence of the application for judicial review on which applicant’s ground(a) of the objection was based is completely outside the decision of the trial court in striking out the action.
By way of an alternate to the above, learned Senior Counsel submitted that the failure of the lower court to consider the issue arising from the said ground (a) has not affected the merit of the decision of the lower court in assuming jurisdiction to entertain the appeal, as It is not every error by a court that would lead to the setting aside of the decision, relying on Amayo v. Evinmuingbe (2006) 11 NWLR (pt. 992) 669 at 689 Mora v. Nwalus (1962) All NLR (pt. 2) 675; Bankole v. Peru (1991) 8NWLR (pt. 211) 523; Ali v. Aleshinloye (2000) 6 NWLR 660) 177, Owhonda v. Ekpechi (2003) 17 NWLR (pt.879) 326 at 335; Uzondu v. Union Bank of Nigeria PLC (2009) 5 NWLR (pt. 1133) 1 at 12.
It is the further contention of learned Senior Counsel that mere non consideration, non pronouncement on an issue will not be sufficient to upset a decision appealed against except it is shown that a miscarriage of justice had resulted there from; that since the merit of the action had not been determined, no miscarriage of justice can be said to have been occasioned thereby; that appellant did not file a cross appeal or respondent’s notice at the lower court and can therefore not be heard on the competence of the application before the trial court; that the reliance of the appellant on Order 47 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2000 is unfortunate as the same is reliance on technicality; that contrary to the contention of his learned friend, the grounds and reliefs sought were clearly stated on the application for judicial review as required by the Rules of court; that there is prima facie evidence of service of the processes on the parties particularly 2nd and 3rd respondents who have not complained anyway; that the issue of non filing of an affidavit of service of the motion papers before the listing of the motion for hearing is not relevant as the matter was struck out without any hearing and that the decision in Appolos Udo supra is irrelevant as well as Order 47 Rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000. Finally, it is the contention of learned Senior Counsel that the issue not pronounced upon was neither crucial nor relevant, nor competent for the determination of the subject matter of the appeal before the lower court and as such no miscarriage of justice has been occasioned thereby.
On his part, learned Senior Counsel for the 4 respondent, L.O. FAGBEMI ESQ, SAN agreed with his learned friend for the 1st respondent that in a consideration of any matter, a court is not bound by the issue(s) submitted for its consideration as the court has the power to predicate its decision on what matters it peeved to be the relevant issue for consideration, relying on the case of Fabiyi v. Adeniyi (2000) 5S.C 31 at 41; that the lower court addressed fully the issue of competence of the action as raised in the objection; that the action as instituted being a pre-election matter, the subsequent conduct of an election does not affect the future of the action, relying on Amaechi v. INEC (2007) 18 NWLR (pt. 1065) 42 at 48; Adeogun v. Fashogbon (2008) 17 NWLR (pt .1115) 149 at 173 – 474; that jurisdiction of a court is statutory as parties cannot remove the jurisdiction which a court has or confer jurisdiction when the court has none, relying on Ijebu Ode L.G. v. Balogun & Co. Ltd (1991) 1 NWLR (pt 166) 136 at 153; Wema Bank Plc v. Chnstrock Lab. Ind. Ltd (2002) 8NWLR (pt.770) 614 at 628; that whether 1st respondent participated in the election of 28th April, 2007 ,is irrelevant in determining whether the court has jurisdiction to entertain the action.
In the reply brief deemed filed on 13th May, 2010, learned Senior Counsel for the appellant submitted that learned Counselor the 1st respondent haven conceded that appellant, ground (a) of the objection challenged the competence of the application for judicial review, it was wrong, law for the 1st respondent to countermand that concession by submitting that the said issue of incompetence of the application was not ripe for determination at the interlocutory stage of the proceeding; that the competence of an originating process raised an issue of jurisdiction, replying on Kida v. Ogunmola (2006) 13 NWLR (pt 997) 377 at 394 – 395 which can be raised at any stage in the proceedings; that an issue of jurisdiction or competence of an action is a live issue which must be determined by the court.
It is not in dispute that the lower court, in considering the issue for determination arising from the grounds of preliminary objection raised by the Senior Counsel for the appellant failed to consider all the issues submitted for determination of the said objection. The particular ground of objection not considered by the lower court is said to be ground (a) which complained, in effect, thus:
(a) The said appeal is incompetent because it is founded on a motion on notice which itself is incurably defective for the following reasons:
(i) The applicant did not comply with the provisions of Order 47 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2000 in that he did not specify the grounds and facts of the application.
(ii) Contrary to the provisions of Order 47 Rule 5(3) of the aforesaid Rules, the Notice of Motion was not served on the 2nd respondent directly.
(iii) The motion paper were served more than three days after filing contrary to the express orders of the Honourable Court.
(iv) Contrary to the provisions of Order 47 Rules 5(6) of the aforesaid Rules, and the decision in Re : Appolos (1987) 4NWLR (pt. 63) 120 the applicant did not file an affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the Notice of Motion before the motion was entered for hearing.
Order 47 Rules 3(2); 5(3) and 5(6) of the Federal High Court (Civil Procedure) Rules 2000 cited and relied upon by learned Senior Counsel provide as follows:-
(2) An application for leave shall be made ex-parte to the court, except during vacation when it may be made to a Judge in chambers and shall be supported by-”
(a) A Statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) Affidavit to be filed with the application, verifying the facts relied on.
While Rule 5(3) states thus:
The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons shall also be served on the clerk or registrar of the court and, where any objection to the conduct of the judge is to be made, on the judge.
Finally Rule 5(6) provides as follows:
An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the court on the hearing of the motion or summons.
I have gone through the record and the arguments of both counsel on this matter. I confirm that the lower court did not consider arguments on appellant’s ground (a) supra. The quests that follows is whether the non-consideration of the ground in the decision of the lower court resulted in a miscarriage of justice or amounts to a denial of the right of fair hearing of the appellant. I hold the considered view that the non consideration of ground (a) of the grounds of objection can only lead to a miscarriage of justice if the grounds are substantial and if resolved in favour of the appellant could have resulted in the objection being sustained. The lower court, by not considering the grounds in question committed an error, but it is settled law that it is not every error committed by a court that would lead to the decision of that court being set aside by an appellate court. To result in the decision being set aside, the error so committed must be substantial so as to affect the justice of the case and must, as a result, lead to a miscarriage of justice except rectified by an appellate court.
The provisions of Order 47 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2000 earlier reproduced in this judgment are very clear and unambiguous. It requires an applicant for judicial review to file a statement in which he is to set out the name and description of the applicant, the relief(s) sought and the grounds on which the said relief(s) is/are claimed. In addition to the above, an applicant must also file, along with the application, an affidavit verifying the facts on which the applicant relies in making the application.
I hold the considered view that the provisions of Order 47 Rule 3(2) supra is mandatory and that any application for judicial review not so accompanied is grossly incompetent and is liable to be struck out as the court would have no jurisdiction to entertain same.
The question that follows is simply whether the application of the 1st respondent for judicial review under consideration complied with the above requirement If it does not, the non consideration of the ground in question by the lower court in its decision on the preliminary objection would have resulted in a miscarriage of justice as the issue is substantial as it affects the competence of not only the action but of the court to entertain same.
I have carefully gone through the record of appeal and I agree with the submission of learned Senior Counsel for the 1st respondent that the application in issue was accompanied with the required statement as can be seen at pages 5-9 of vol. 1 of the record in SC/54/2010 prepared by the appellant, and pages 68-72 of vol. 1 of the record of appeal in S.C/51/2010. I do not need to reproduce them in this judgment as that would serve no useful purpose. Since the applicant complied with Order 47 Rule 3(2) supra, it is clear that the objection in relation thereto has no merit whatsoever and its non consideration by the lower court has not led to any miscarriage of justice, or breach of appellants right to fair hearing. To say that something is not there when in fact it is, is to say the least very unfortunate as it amounts to being economical with the truth. It amounts to an attempt at misleading the court which the court frowns upon. I need not say more.
As regards Rules 5(3) supra. It is not the contention of the appellant that he was not served with the notice of motion in the application In issue neither is he contending that the other respondents to the application were not so served. It should also be noted that the other respondents to the application for judicial review, who did file objections to the competence of the application and the lower court to entertain the appeal arising therefrom, never complied of either non service of the originating Process or improper mode of service on them.
Appellant is not the 2nd Respondent and learned Senior Counsel for the appellant cannot complain on its behalf not haven been retained by the 2nd respondent to conduct the appeal or matter. I therefore hold the view that the complaint against the mode of service of the motion on notice on the 2nd respondent is a complaint by a busy body, which is consequently discountenanced by me.
On the non-compliance with Rule 5(6) of the Rules of court supra, it should be remembered that the case was never heard by the trial court. On the 30th day of April, 2007 when the matter came up before that court, it was never heard. All the court did was to, suo motu, strike out the case for lack of jurisdiction. There was no hearing of any kind. The ground of objection, therefore, had no substance whatsoever.
It is very obvious, from the above, that the sub-issue as to whether the non consideration of the relevant issue(s) by the lower court occasioned a breach of appellant’s right to fair hearing is a non issue. I therefore have no hesitation in resolving issue 1 against the appellant.
On issue 7, it is the submission of learned Senior Counsel for the appellant that an examination of the reliefs sought in the application reveals that the application is by was of mandamus; that 1st respondent is seeking an order to compel the 2nd and 3rd respondents to carry out a public duty to wit, collate and declare the result of Imo State Gubernatorial election held on 14th April, 2007; that the relief cannot be granted without 1st respondent first making a demand for the performance of that duty which demand is turned down, relying on De Smith on Judicial Review of Administrative Action, 8th Ed. Page 556; R. Vs. Commonwealth Court of Conciliation and Arbitration; EXPARTE Ozone Theatres (Australia) Ltd (1949) 78 C.L.R 389; R vs. Bristol and Exeter RY. (1843) 4 P.B 162; r VS Westminister (city), Ex-Parte Canadian Wirvision Ltd (1965) 48 DLR (2D) 210; that the only exception to the rule is where the respondent or person originally responsible for the performance of the duty has ceased to have legal authority, power to comply; that 1st respondent did not make any prior demand for the performance of the duty before instituting the action and as such the trial court had no jurisdiction to entertain the action, relying on Madukolu v. Nkemdilim (1962) All NLR 581 at 590.
Secondly learned Senior Counsel submitted that from the reliefs claimed, it is clear that 1st respondent went to the court so that the court would return him as the duly elected Governor of Imo State; that a decision declaring the 1st respondent as the duly elected Governor of Imo State at the election in question will run counter to section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 hereinafter referred to as the 1999 Constitution); learned Senior Counsel also cited and relied on the case of ANPP v. Returning Officer, Abia State (2007) 11 NWLR (Pt.1054) 4341 at 434-435 in submitting that the trial court has no jurisdiction to entertain the competent process, which incompetence affects the jurisdiction of the lower court to hear the appeal arising form the said proceeding.
On his part, Learned Senior Counsel for the 1st respondent submitted that it is erroneous to contend that the application before the trial court is by way of mandamus; that under the provisions of Order 47 Rule 2, of the Federal High Court (Civil Procedure) Rules, 2000, an application for a declaration or a function may be made to the court by way of Judicial Review which may be granted by the court. Learned Senior Counsel acknowledges that relief (e) seeks the relief of mandatory injunction to compel the 2nd and 3rd respondents to complete the process of the Imo State Governorship election held on 14th April, 2007; that a prayer for mandatory injunction cannot be classed with the common law remedy of mandamus as mandatory injunction targets completed acts as in this case, relying on the case of Abubakar v. Jos Metropolitan Development Board (1987) 10 NWLR (pt. 524) 242 at 251; Kwankwaso v. Governor, Kano State (2007), All FWLR (Pt. 363) 179 at 179; that in the light of the circumstances of this case, mandatory function is appropriate remedy to compel the 2nd and 3rd respondents Who are public officers to act within their statutory powers.’
By way of an alternative submission, learned Senior Counsel urged the court to hold that the submission that there must be prior demand and refusal to perform a public function is totally untenable in this case; that though it is conceded that it is desirable to demand performance, the law is entrenched that any failure to fulfill a public duty or violation of statutory/constitutional power may be subject to a mandatory order”; that the requirement of demand to perform and its refusal cannot be applicable in all cases, relying on R vs. Hanley Revising Barrister (1012) 3 KB 518 at 531-532; R v. Secretary of State for the Home Department ex-parte Phansopkr (1976) QB 606; R v. London Borough of Tower Hemlets Council Ex parte Kanye-Levenson (1975) 1 All ER 641 at 653; 657; that mandamus has been held to lie so as to prevent an apprehended breach of duty and as such the desirability to call for the public body in question to fulfill its duty ought not to be listed upon as any failure to fulfill a public duty may in principle be the subject of a mandatory order’; that the situation in which a governorship election was out rightly cancelled and another one re-scheduled is an exceptional circumstance; that the authorities of Layanju v. Araoye (1959) S.C NLR 416 and ANPP v. Returning Officer, Abia State (2007) 11 NWLR (pt. 1045) 431 relied upon by the appellant are not applicable to the instant case. The court is urged to resolve the issue against the appellant.
The 4th respondent’s brief of argument is of no use to this Court in the consideration of the issue under consideration as it never addressed same. It is consequently discountenanced by me.
In the case of Layanju v. Araoye (1959) SCNLR 416 at 420, this Court held, per BRETT FJ as follows:-
As I have already pointed out, it is well settled an application for a writ of mandamus the court must be satisfied, first that the respondent has a duty of a public nature to perform, and secondly that he has refused, on demand to perform it.
The above is the law on the issue but the question remains whether the present action for judicial review is in the nature of mandamus. The above question has to be determined before proceeding to decide whether it complies with the conditions precedent to invoking the jurisdiction of the court on an action of that nature or it qualifies for an exception to the general principle of prior demand and refusal of performance of the public duty by a public body or officer.
“What are the cases that are appropriate for application for judicial review The answer is in Order 47 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 (hereinafter called the High Court Rules or the Rules), which provides as follows:-
(1) An application for
(a) An order of mandamus, Prohibition or certiorari; or
(b) an injunction restraining a person from acting in any office in which he is not entitled to act, shall be made by way of an application for judicial review in accordance with the provision of this order.”
It is clear from the above provisions that the main cases where a party can or may apply for judicial review are four, viz:-
(a) Where he wants an order for mandamus,
(b) Prohibition, or
(c) Certiorari or
(d) An injunction restraining a person from acting in any office in which he is not entitled to act.
The above are the primary cases where an applicant may adopt the process of judicial review in initiating an action in the court of law – the High Court in particular. It should be noted that under the above rule, an application for injunction by way of judicial review can only be made where it is intended to restrain a person from acting in any office in which he is not entitled to act. It is therefore clear that an injunction for any other purpose cannot stand on its own by way of judicial review since Order 47(1) (b) has limited strictly the scope or nature of an injunction that can be applied for by way of judicial review to that which seeks to restrain a person from acting in an office in which he is not entitled to act. It is an exception to the general rule that an injunction cannot be claimed as a substantive claim in an action without tying same to a main claim, usually by way of declaration, damages etc. The order of injunction talked about supra is in the nature of the former order of QUO WARRANTO.
However, Rule 2 of Order 47 provides as follows:-
(2) An application for a declaration or an injunction (not being an injunction mentioned in sub-rule (i) (b) of this rule) may be made by way of an application for judicial review and on such an application, the court may grant the declaration or injunction claimed if it considers that having regard to
(a) The nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorai;
(b) The nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) All the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
From the above provision of Order 47 rule 1(2) it is clear that on an application for judicial review, any relief mentioned in rule 1 (1) or (2) of the order may be claimed by an applicant as an alternative or in addition to any other relief so mentioned if it arises from or relates to the same matter. It should be noted that the injunction that can be claimed under sub-rule 2 of Rule 1 of Order 47 is any other injunction excepting the one specifically mentioned under Order 47 (1) (i) (b) which may include an order for mandatory injunction. However, by the operation of Rule (2) (a) supra, the mandatory injunction claimed in this application may be granted having regards to the nature of the order of mandamus.
What then is mandamus, and, mandatory injunction
MANDAMUS is simply an order issued by a court of law, usually the High Court to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. In the case of Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C 40, IDIGBE, JSC described it as follows:-
The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do some particular thing therein specified, which appertains to his or their office, and is in the nature of public duty.
MANDATORY INJUNCTION on the other hand is defined by BLACKS LAW DICTIONARY 8th Edition page 800 as follows:-
An injunction that orders an affirmative act or mandates a specified course of conduct.
It should be noted that before the reform which introduced sub-rule (2) of Order 47 Rule 1, one was not allowed to claim a prerogative order along with private law remedies like damages and injunction other than the injunction mentioned in Rule 1 (1) (b) of Order 47 which was basically in the nature of the order of Quo Warranto.
In a general sense today, every order of a court which Commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating inparsonam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience ….”See Babalola on Injunctions and Enforcement of Orders, 2nd Ed. Page 3.
Injunctions are however classified according to the nature of the order given by the court or sought by the parties. We therefore have mandatory injunctions and prohibitory injunctions as two broad classifications.
Under prohibitory injunctions you have perpetual injunction; Interlocutory injunction; Interim injunction; Qua Timet injunction; Mareva injunction and Anton Piller orders. Generally Prohibitory injunctions restrain the person to whom they are directed from doing specific act or acts.
However, Mandatory Injunction, which is our concern in this judgment, on the other hand, is an order of court requiring a party to do a specific act or acts. It is often seen as a restorative order invoked by the court to deal with a defendant who has no respect for the court of law. In most cases, a mandatory injunction is granted to undo what has already been done, that is why it is usually referred to as restoratory injunction.
Now relief (e) of the claims of the 1st respondent before the trial court is as follows:-
An order of Mandatory Injunction directing the Respondents to forthwith continue and complete the process of conducting the Imo State Gubernatorial elections where the Respondents stopped and in accordance with the provisions of the Electoral Act, 2006 and Constitution of the Federal Republic of Nigeria, 1999, to wit collate and declare the results at the state level.
It is clear from the above and I hold the view that relief (e) couched as above shares common features with or is akin to an order of mandamus particularly when it is realised that the said relief (e) is claimed in an application for judicial review and is directed at the 2nd and 3rd respondents who are public bodies to perform their public duties. It does not seek restoration properly so called. It would have made a lot of difference if the claim had been made in a purely private law setting without being made under the procedure of judicial review. In an application for judicial review by way of an order of mandamus, the applicant is expected to fulfill certain conditions such as that which requires the applicant to first and foremost request the public body to perform the duty in question and that body must fail and or refuse to do so before an application for mandamus is presented at the High Court to compel performance of the said duty. However, in an ordinary claim for mandatory injunction, such a precondition does not exist though the intention is clearly to compel the public body to perform its duties statutory or otherwise imposed on it. The reason why a request for the performance of the official duty has first to be made before issuance of the order of mandamus is to offer the public body or person concerned the opportunity of making amends or performing the duty. It is only when the person or body fails or refuses to do so that he or they can be compelled by an order of mandamus to do so. The prior demand for performance is to offer the public body the needed opportunity to perform the public duty in question or make amends.
If one agrees with learned Senior Counsel for the 1st respondent that the mandatory injunction claimed in an application for judicial review has no trappings of an order of mandamus, it means that the 2nd and 3rd respondents would have been denied of the opportunity offered them by the procedure for an order of mandamus to put their house in order or right the perceived wrong, which would be very unfair. In any event, the order of mandatory injunction being of the nature of an order of mandamus, it follows that its grant has to be in accordance with Order 47 Rule (2) (a) supra.
Secondly it would amount to granting an order of mandamus through the back door, as the effects of both orders are the same, on the public body or authority or officer.
It is for the above reasons that I hold the considered view that a claim for an order of mandatory injunction in an application for judicial review in which there is no claim for mandamus amounts, in law, to a claim for an order of mandamus and must comply with all the pre-conditions necessary for the invocation of the jurisdiction of the Court for the order of mandamus including a prior request for the performance of the duty sought to be enforced by the order of mandamus or mandatory injunction, and that failure to do so will render the initiation of the proceeding and the competence of the court to entertain same, fundamentally defective.
I have not been able to see the exceptional circumstances in this case that would make it unnecessary for the court to insist on prior demand for performance of the duty in question.
This is a clear case of an applicant trying very hard to get an order of mandamus through the back door by christening the claim Mandatory Injunction, and should not be encouraged.
To do so would be oppressive on the 2nd and 3rd respondents.
From the reliefs earlier reproduced in this judgment, the grounds on which they are claimed as stated in the statement filed along with the application as well as the affidavit in support thereof, there is no doubt that the 1st respondent’s application at the Federal High Court seeks the court’s assistance to return him as the duly elected Governor of Imo State in the election of 14th April, 2007 by way an application for judicial review. See the declaratory reliefs earlier reproduced in this judgment.
Section 285(2) of the 1999 Constitution provides as follows:-
“There shall be established in each state of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
When one asks the question, which public duty does the 1st respondent want the court to compel, it is very clear that it relates to the election of 14th April, 2007 the result of which 1st respondent wants the 2nd and 3rd respondents to collate and declare of which the 1st respondent claims by paragraph 13 and 14 of his supporting affidavit to have won 24 out of the 27 local government areas of the state haven polled 87% of the total votes cast which is a matter within the exclusive jurisdiction of the Governorship and Legislative Houses Election Tribunal as provided for in section 285(2) of the 1999 Constitution supra and over which the Federal High Court has no jurisdiction.
That apart, and in addition to what had been said so far on the issue as to whether a claim for mandatory injunction by way of judicial review of administrative actions is the same thing as an order of mandamus, this Court has held in the case of A.N.P.P. v. Returning Officer, Abia State (2007) 11 NWLR (pt. 1045) 431 at 434-435 as follows:-
Election matters are in a class of their own and are entirely statutory. The writs of certiorari and mandamus being Common Law remedies cannot be invoked in a purely election matter and where they are invoked, they cannot change the character of the matter as election matter clearly belongs to the election tribunal and clearly outside the jurisdiction of the Federal High Courts” That is the law on the matter!
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 2nd 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 v. Nkamdilim, supra, a court is competent inter alia, when the case comes before it initiated by due process of law, and upon fulfilment 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.
Secondly, election matters being statutory, the common law writs or orders of certiorari, mandamus, prohibition, declaration, damages and or injunction are not applicable as they cannot change the character of election matters which belong, by Constitutional arrangement, to election tribunals and outside the jurisdiction of the High Courts under any guise.
It follows therefore that since the Federal High Court lacks the jurisdiction to entertain the matter as constituted, the lower court had no jurisdiction to entertain the appeal arising therefrom.
There is, as a result, no reason to go into the merits of the other issues raised in S.C/3/2010 in view of the consequence of the resolution of issues 1 and 7 in the appeal.
It is important to state that the Election Tribunals established under section 285 of the 1999 Constitution are not meant to be ad hoc but permanent in nature that is why the jurisdiction conferred on the National Assembly Election Tribunal under section 285(1) of the said 1999 Constitution include the power to determine whether the term of office of any person under the Constitution has ceased, and whether the seat of a member of the House of Representatives has become vacant. These are not strictly speaking election matters arising from the conduct of an election into the relevant offices and which usually takes place at specified times or periods. The issue as to whether the term of office of any person has expired, or seat of a member of the Senate or House of Representative has become vacant are post election issues which by the present ad hoc arrangements in respect of constitution of Election Tribunals, may arise after the said tribunals might have rounded up.
Secondly, having regards to the facts of this case, there is the need to take a closer look at the jurisdiction of the Election Tribunal with regard to election related matters such as what took place or gave rise to the institution of the present action on appeal. Election is not an event but a process leading to an event. It is necessary that everything connected with the process leading to the election including the actual election and its aftermath come within the jurisdiction of the Election Tribunal. That will stem the tide of parties trying to pursue election related matters in parallel courts which will only result in confusion, a gleams of which can be seen in the Sokoto State Gubernatorial elections petition saga. In any event, it is my considered view that since the action concerned an election conducted on 14th April, 2007 by the appropriate authority whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant Election Tribunal established by the Constitution of this Country as the matter is not a pre-election matter neither can it be accommodated under the procedure of judicial review.
Section 164 of the Electoral Act, 2006 defines election as meaning any election held under this Act and includes a referendum. It is therefore beyond doubt that what took place on 14th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction of the Election Tribunal by operation of law and no other court or tribunal is clothed with jurisdiction to entertain it in any guise.
This appeal is however meritorious and is allowed by me.
The judgment of the lower court is set aside while that of the Federal High Court delivered on the 30th day of April, 2007
(3) S.C/54/2010 appeal struck out for being incompetent the same haven arisen from a decision of an incompetent court. There shall be no order as to costs.
I hereby order as above.
SC.3/2010
