Aliyu V. Apc & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
TIJJANI ABUBAKAR, J.S.C.
This is an appeal against the judgment of the Court of appeal sitting in Makurdi delivered on the 15th day of December, 2021. The judgment of the Court affirmed the ruling delivered by the High Court of Justice Nasarawa State on the 8th day of October, 20211 wherein the trial Court struck out the action filed by the Plaintiff/Appellant for want of jurisdiction.
Just by way of summary of facts grounding this appeal, the Appellant commenced action against the 1st to 4th Respondents (as 1st- 4th Defendants) by originating summons challenging the primary elections conducted by the 1st Respondent on the 26th day of July, 2021 for the position of chairman Nasarawa Eggon Local Government of Nasarawa State. The Appellant felt aggrieved by the way the primaries were conducted because he satisfied all the requirements for participation in the primary elections to contest for the office of the Chairman Nasarawa Eggon Local Government but to his utter surprise and chagrin the Primary elections were conducted behind him through some manoeuvres and intrigues, he was side-lined, the primary elections produced the 3rd Respondent as the successful candidate of the 1st Respondent, the name of the 3rd Respondent was therefore submitted to the 4th Respondent as the successful candidate of the 1st Respondent.
The Plaintiff /Appellant took out originating summons on the 9th day of August, 2021 at the High Court of Justice, Nasarawa State, asking for some declarations and questions to be determined by the trial Court, the declarations and questions are therefore reproduced as follows:
- A DECLARATION that the Primary Election organized and conducted by the 1st and 2nd Defendants in Nasarawa Eggon Local Government Council is null, void and of no effect whatsoever arising from an illegal structure of the party.
- A DECLARATION that the 3rd Defendant is not validly nominated for Local Government General Elections scheduled for 6th October, 2021, as such any certificate issued to him by the 1st Defendants is null, invalid and of no effect whatsoever.
AN ORDER directing the 1st and 2nd Defendants to immediately withdraw the nomination of 3rd Defendant as candidate for Nasarawa Eggon L.G.C. in the proposed Local Government elections.
- AN ORDER OF INJUNCTION restraining the 1st and 4th Defendant from dealing with, recognizing or continuing to recognize in any manner howsoever, acting on the name of the 3rd Defendant or holding out the 3rd Defendant as the candidate of the 1st Defendant for chairmanship of Nasarawa Eggon – Local Government Area for 6th October, 2021, Local Government, Elections.
- AN ORDER restraining the 3rd Defendant from holding out or parading himself as the candidate of the 1st Defendant for Nasarawa Eggon Local Government Council for the Local Government Council General Elections scheduled for 6th October, 2021.
- A DECLARATION that Caretaker Committees of Local Government Area and wards are not legally and democratically elected executives of the 1st Defendant, as such they cannot elect candidate for any election, therefore the exercise conducted by them is illegal, unconstitutional, null, void and has no effect whatsoever.
- AND FOR SUCH FURTHER ORDER(s) as this Honorable Court may deem fit to make in the circumstance.
The Plaintiff then asked for the determination of the following three questions:
i. Whether having regard to the provision of Article 20(iv) (a) of the APC Constitution, the Caretaker Committee of the Local Government Area and wards constitute the electoral college of delegates democratically elected by members of the party for the purpose of nominating a candidate for an election.
ii. Whether there was at any time voting at the ward congresses to elect the members of the Electoral College to empowers them to participate at the nomination of candidate for election into the Local Government Council in compliance with Article 20(iv) (c & d).
iii. Whether by virtue of Article 20(iii) of the APC Constitution, the nomination of candidate for Local Government Council Elections can be done by consensus and not direct primary given the circumstance of the party at the moment.
At the trial, the 1st and 2nd Respondents filed notice of preliminary objection seeking to strike out the suit on four grounds. The grounds of objection at the trial were that, the Plaintiff had no locus standi to institute the action, that the suit was filed outside the 14 days period required, the action was therefore statute barred, that the plaintiff failed to include his National Identification Number in the originating summons thereby rendering the processes filed invalid, and that the Plaintiff had not exhausted the internal remedies for dispute resolution in line with the party Constitution. The 4th Respondent also filed notice of preliminary objection contending that there was no cause of action against it.
The matter was heard by the trial Court, the trial Court held that it had no jurisdiction to entertain the appeal, it was accordingly struck out. The Appellant became nettled by the decision of the trial Court and appealed to the lower Court, the Court of Appeal Makurdi Division. On the 15th day of December, 2021, the lower Court rendered a decision holding that it had no jurisdiction to entertain the appeal, the appeal was therefore accordingly struck out. The Appellant again became aggrieved and further appealed to this Court against the concurrent findings of the trial and lower Court. The appeal to this Court premised on three grounds of appeal was filed on the 22nd day of December, 2021.
The brief of argument of the Appellant was filed by learned Counsel M.M. Hirse, Esq., on the 25th day of January, 2022. In the Appellants brief of argument, learned Counsel nominated and argued three issues for determination, the issues are:
a. Whether the Court of Appeal was right in holding that it did not have the Jurisdiction to hear and determine an appeal challenging the primary election of the All Progressive Congress to the position of the Chairman of Nasarawa Eggon Local Government of Nasarawa State.
b. Whether having regards to the reliefs endorsed on the Originating Summons and the facts in the affidavit in support thereof, the Court of Appeal was right in striking out the Appeal against judgment of the trial Court on the ground that the Court of Appeal did not possess jurisdiction without hearing the parties and entering a decision on the Appeal before it.
c. Whether a dissatisfied contestant to a primary election can approach the Court for redress (Distilled from Ground 3).
The 1st and 2nd Respondents’ brief of argument was filed by learned Counsel Usman on the 8th day of February, 2022. In the brief of argument, Counsel argued the 1st and 2nd Respondents’ preliminary objection and adopted the issues submitted for determination by the Appellant as their issues for determination, I am sure it is needless reproducing the issues again, it is sufficient to mention that the 1st and 2nd Respondents adopted Appellants issues for determination in arguing this appeal.
Learned Counsel Nalaraba filed the 3rd Respondent’s brief of argument on the 8th day of February, 2022 and nominated sole issue for discourse in the determination of this appeal, the sole issue is also reproduced:
Whether the Court of Appeal was right in holding that it does not have jurisdiction to hear and determine appeal of the Appellant as filed before it (distilled from grounds 1 and 2).
Learned senior Counsel Hassan Liman SAN filed the 4th Respondent’s brief of argument on the 7th day of February, 2022, in the brief of argument Counsel incorporated argument on the preliminary objection of the 4th Respondent. The fulcrum of the 4th Respondent’s preliminary objection is that this Court lacks the requisite Jurisdiction to hear and determine this appeal. Learned Counsel also reacted to the substantive appeal by crafting sole issue for determination, the issue reads as follows:
Whether in view of the provision of Section 285 (14) (a) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 and the settled position of the law, the Court of Appeal was right to have struck out the Appellant’s appeal for lack of jurisdiction.
From the processes filed in this appeal, it is clear that the 1st, 2nd and 4th Respondents filed preliminary objections to the hearing and determination of the appeal. The law is well settled on a chain of seemingly endless decisions of this Court that, where a preliminary objection to the hearing of an appeal is raised, the Court must deal with it before proceeding to hear and determine the substantive appeal if so doing is eventually found to be necessary, where preliminary objection to the hearing of an appeal is sustained, the necessity to hear and determine the substantive appeal becomes obviated, in other words, the appeal comes to the end, where the objection is held to be without merit it will be discountenanced, the Court will then proceed to the hearing and determination of the appeal on the merit. See the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC), where my law lord and brother ARIWOOLA, JSC held as follows:
“Preliminary objection in a case is an objection that, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court’s jurisdiction is an example of a preliminary objection. See Black’s Law Dictionary 9th Edition page 1299. Generally, the Rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal. See General Electric Company V. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96 and Lamidi Rabiu V. Tola Adebajo (2012) 6 SCM 201.”
In absolute obedience to the settled position of the law therefore, will tackle the preliminary objections first before delving into the substantive appeal if so doing turns out to be necessary.
THE PRELIMINARY OBJECTION
The 1st and 2nd Respondents filed notice of preliminary objection on the 8th day of February, 2022, in the notice of preliminary objection, the Respondents contend that:
- “The Court lacks jurisdiction to entertain this appeal.
- The suit was filed outside the required period of 14 days as provided by Section 285(9) of the 1999 Constitution (as amended) and same is statute barred.”
The 4th Respondent also gave notice of preliminary objection contending that the Court lacks the requisite jurisdiction to entertain the appeal.
The contention of the 1st and 2nd Respondents is that the suit was filed at the trial Court outside the 14 days provided for in Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999, 4th Alteration Act. Learned Counsel submitted that once a statute provides for the way a particular act shall be done, it must be done in such manner, that Section 285 (9) of the Constitution provides that every pre-election matter SHALL be filed not less than 14 days from the date of the occurrence of the event, decision or action complained of in the suit. Learned Counsel relied on the decisions in ACN V. INEC (2013) NWLR (Pt. 1370) Pg. 161, INEC V. ONOWAKPOKO (2018) 2 NWLR (Pt. 1602) pg. 134, YAKI V. BAGUDU (2015) 18 NWLR (Pt. 1491) pg. 288, and CBN V. HARRIS (2017) 11 NWLR (Pt. 1575) Pg. 541 to submit that the provisions of Section 285 (9) limited the rights of the Plaintiff to file any action once he did not meet up with the requirement of the 1999 Constitution (4th Alteration) Act.
Learned Counsel then submitted that suit no. NSD/LF55/2021 was filed on the 9th day of August, 2021 and the cause of action arose on the 26th day of July, 2021, that between 26th July, 2021 to 9th August, 2021 is 15 days, from this computation therefore Counsel said the suit was filed outside the 14 days limited by the provisions of Section 285 (9) of the Constitution of Nigeria 1999 (4th Alteration) Act, the action is therefore statute barred. Counsel therefore urged that the suit be struck out for want of jurisdiction.
The learned Counsel for the 4th Respondent referred to the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC) to submit that appeals coming from the Court of appeal that border on Local Government Elections are not among the items listed under Section 233 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) he therefore urged this Court to hold that it lacks jurisdiction to hear and determine this appeal.
In the reply brief filed by the Appellant on the 11th day of February, 22, Counsel submitted that the Appellant has consistently, constantly and persistently challenged the conduct of the primary elections held by the All Progressive Congress at Nasarawa Eggon Local Government on the 26th of July, 2021, so doing Counsel said falls within the rights of the Appellant under Section 87 (9) of the Electoral Act. Learned Counsel urged this Court to discountenance the objections.
RESOLUTION
In resolving the objection to the competence of this appeal, it is necessary to examine the basis of striking out the suit at the trial Court and the lower Court, since the grievance of the Appellant is that he was unlawfully excluded from participation in the primary elections to contest for the office of the Chairman of Nasarawa Eggon Local Government, the Appellant in reaction to the contention of the Respondents as set out in the Appellants reply filed on the 26th of July, 2021, sought refuge under Section 87(9) of the Electoral Act. What does the section of the Electoral act say? Let me reproduce the provisions of Section 87 (9) of the Electoral act 2010 (as amended) the section provides as follows:
“87(9) Notwithstanding the provisions of this Act or Rules of a Political Party, an aspirant who complains that any 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 a political party for election, may apply to the Federal High or the High Court of a State or FCT, for redress.”
From the above provision of the law, Appellant brought himself under the provisions of the Electoral Act and insisted that he came to the trial Court pursuant to the provisions of Section 87(9) of the Electoral Act to ventilate his grievance by so doing, he subjected his claim to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria (4th Alteration) Act, thereby making his suit incompetent having been filed outside the 14 days provided by law.
A litigant cannot choose to impose himself on any provisions of the law, rather, it is the facts and circumstances of his case that will determine the law applicable to his case, this is in accord with the settled position of the law that parties cannot confer jurisdiction on the Court.
Again a point of want of jurisdiction being fundamental to the process of adjudication can be raised by the Court suo motu even where the parties fail to do. See IJEBU-ODE L. G. V. BALOGUN & CO LTD (1991) SC. In the instant case, from the onset, the Respondents consistently challenged the jurisdiction of the Court from the trial up to and including this Court, in effect therefore point of jurisdiction has been central to the determination of the case between the contending parties in this appeal.
Before coming to determination of the infantry of objections lined UP by the Respondents, let me find out why the trial Court held the view that Appellant’s action at the Court was incompetent. At page 331 of the records of appeal in the judgment of the trial Court, the learned trial Judge held as follows:
“The Court will not allow a political party to act arbitrarily or as it likes, a political party must obey its own constitution. A corollary of the foregoing is that Courts are confined by the four walls of the agreement entered into by parties. Once same is voluntary, the Courts cannot rewrite it for the parties.
The Plaintiff is a voluntary member of the APC and as such is bound by the Constitution of the APC. It is on record that the plaintiff did not exhaust the procedure laid down by the constitution of his party the APC in seeking redress for any received wrongdoings against him by the party. Jurisdiction is not conferred on Courts by ingenious arguments or semantics. It is either Court has jurisdiction or not.
From the originating summons of the plaintiff before me, and orders he seeks from Court, can be grantable, only if I have the jurisdiction to adjudicate. The plaintiff not having exhausted the procedure laid down by the constitution of his party the APC robs me of the jurisdiction to entertain the main suit. The Plaintiff should seek redress under his political party constitution, and if that fails, then he can approach the Court. But for now, I decline jurisdiction and refuse the prayers of the Plaintiff, the suit is hereby struck out.”
The trial Court held the view that since the Plaintiff Appellant failed to exhaust the internal dispute resolution mechanism of his political party, his action was adjudged incompetent having failed to satisfy condition precedent to commence an action in Court. The Appellant became aggrieved by the decision of the trial Court and therefore rushed to the lower Court at page 416 of the records of appeal containing the judgment of the lower Court, the Court held as follows:
“Similar issues as in contention here in this appeal had cropped up before the Court for determination and upon consideration of Sections 240, 241, 242 and 243 of the 1999 Constitution (As Amended); it was held beyond any iota of doubt that this Court is not endowed with Appellate jurisdiction to entertain Appeals bothering on decisions of the lower Court on the Election of Chairman, and/or Councilors of Local Governments… the Apex Court held that there is no such right of appeal on decisions bothering on Local Government Elections from a Court to the Court of Appeal. By virtue of Section 285(14) (a).”
Further in the judgment of the lower Court at page 4171, the lower Court again held as follows and I quote:
“our jurisdiction is limited to pre-election matters regulated by the Electoral Act or any Act of the National Assembly as the Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory cannot confer jurisdiction on this Court. See the case of Chief (Mrs.). Olufunke Victoria Ehuwa vs. Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 at 576 para, G; where the Legal Sage and Emeritus Law Lord of the Apex Court Onnoghen, JSC (later CJN) at pages 589 para. H to 591 para. A; aptly posited on the vexed issue of the jurisdiction of the Court of Appeal in appeal from the High Court on Local Government Elections thus: “It is settled law that jurisdiction is creation of statute or that jurisdiction is always donated by the Constitution or Statute and is never inferred or implied. Looking closely at the relevant constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of appeal jurisdiction to hear Appeals Court of from appeals from the High Court emanating from decisions of that Court on appeal from Local Government Tribunals …”
Both Courts clearly distanced themselves from the case of the Appellant, while the trial Court was of the view that the Plaintiff/Appellant was hasty in packaging his claim to the Court having omitted to address condition precedent, the lower Court held very clearly that it had no jurisdiction to hear and determine the appeal.
It is very clear that jurisdiction is donated to this Court and all other Courts by statutes, why must the Court deliberately open flood gate to endless frivolous litigations? Does the Constitution talk about Local Government elections? Does the Electoral Act talk about Local Government elections? To address this issue in support of the position taken by the lower Court, I must embark on navigation into the Electoral Act to unveil where the Appellant thought he could find solace in clothing himself with the right to approach the Court of Appeal in his bid to contest for the office of Chairman in a Local Government.
I will refer to part VI of the Electoral Act in particular Sections 103 (1) of the Electoral Act which provides for election into Local Governments as follows:
“103(1) The conduct of elections into the offices of Chairman, Vice-Chairman and a member of an Area Council and the recall of a member of an Area Council shall be under the direction and supervision of the Commission in accordance with this Act.
(2) The register of voters compiled and the polling units established by the Commission and other regulations, guidelines, rules or manual issued or made by the Commission shall be used for elections into the Area Council or recall of a member.”
From the provisions of Section 103 of the Act, it is very clear to me that the case of the Plaintiff/Appellant is wholly and exclusively regulated by the Nasarawa State Electoral Law, the National Electoral Commission or the Electoral Act have no place in the election, the elections contemplated by the Electoral Act, are elections into local area Councils as defined under Section 156 of the Electoral Act. Section 156 of the Act defines area Councils as:
“Area Council” means Area Councils recognized and existing by virtue of Section 3 (6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8 (5) of the Constitution.”
Section 3(6) of the Constitution provides for 778 Local Governments and six area Councils as set out in the I and II Schedules to the Constitution of the Federal Republic of Nigeria (1999) (as amended), the Appellant in the instant appeal falls within the 778 Local Governments, (Nasarawa Eggon Local Government) he does not come within the schedule to the Constitution where the Electoral Act applies, in other words, he does not belong to a local area council. For the avoidance of doubt, the II schedule to the Constitution where Area Councils are provided is also reproduced as follows:
FEDERAL CAPITAL TERRITORY, ABUJA
Area Councils
Area Council Headquarters
Abaji Abaji
Abuja Municipal Garki
Bwari Bwari
Gwagwalada Gwagwalada
Kuje Kuje
Kwali Kwali
From the provisions of Section 103 of the Electoral Act, it is very clear to me that elections into Local Government offices conducted under State Laws cannot find their way to the Court of Appeal or Supreme Court under any guise, this is therefore so as rightly found by the lower Court. Politicians operating under the State Electoral laws must begin and end their squabbles and skirmishes within the State, such wrangling must not extend to this Court. The Appellant has no business whatsoever taking his grievance before the lower Court. It is necessary to sound a note of counsel to politicians to learn to respect their Constitution so doing will enrich internal democracy and promote the culture of voluntary compliance, not every irritating claim is deserving of judicial time and attention. Politicians must begin to have faith in their own internal dispute resolution mechanism, they must graduate into managing their internal domestic affairs without running for judicial intervention at all times.
I must just go by the settled position of the law, that this Court cannot exercise jurisdiction once the trial Court or the lower Court is without jurisdiction. An Appellate Court can only exercise its appellate jurisdiction to correct errors of the lower Court. Having decided that the lower Court had no jurisdiction to tinker with the decision of the trial Court, it follows automatically therefore that this Court has no jurisdiction of its own to exercise. See AKINBOBOLA V. PLISSON FISKO NIG LTD & 2 ORS (1991) 1 NWLR (Pt. 167) 270 AT 285.
The Jurisdiction of the lower Court as rightly found by the Court is limited to matters regulated by the Electoral Act or any Act of the National Assembly. The Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory as it relates to area Councils cannot confer jurisdiction on the lower Court or this Court.
On the whole therefore, the preliminary objection is meritorious and is accordingly sustained, this Court has no jurisdiction to entertain Appellant’s appeal, it is therefore struck out.
Parties shall bear their respective costs.
SC.CV/24/2022
