Abia State Independent Electoral Commission V. Chief Okechi Kanu & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
On the 14th day of May, 2007 the Respondents as plaintiffs commenced the suit subject matter of this appeal at the Federal High Court, Abuja claiming the reliefs contained in their writ of summons and paragraph 15 of their Statement of Claim thus:-
(i) A declaration that by virtue of Section 7(4) of the 1999 Constitution; section 10(1); (2); (3); (4) of the Electoral Act 2006; Section 11(4) of the Electoral Act 2006; and Section 16 of the Electoral Act,.2006; Abia State Independent Electoral Commission has no power to conduct elections for local Government Councils on the 19th day of May, 2007 the absence of voters register.
(ii) A declaration that any purported method for the conduct of the forthcoming local government elections which runs contrary to the provisions of the Electoral Act, 2006 and the 1999 Constitution is unconstitutional null and void.
(iii) An order of mandatory injunction restraining Abia State Independent National Electoral Commission (ABSIEC) from holding and or conducting local government elections in Abia State on the 19th day of May, 2007 or any other date until the voters register is duly (sic) corrected, updated and issued by the Independent National Electoral Commission
(iv) In the Alternative, an order mandating Independent National Electoral Commission to forthwith release and make available to the Abia State Independent Electoral Commission voters’ register in compliance with section 16 of the Electoral Act; 2006.
On the 17th May, 2007 the lower court made interim orders against the Appellant thus:-
“IT IS HEREBY ORDERED AS FOLLOWS:-
- That the 1st defendant is RESTRAINED in the interim from conducting the Local Government Election for Abia State of Nigeria which has been slated for 19th May, 2007 pending the determination of the Motion on Notice.
- That this cases adjourned to 25/05/07 to enable the 1st defendant present its case in respect of the Motion on Notice. ISSUED AT ABUJA the seal of the Court and the Hand of the Presiding Judge this 17th day of May, 2007”.
On the 21st day of May 2007 the Appellant entered a conditional appearance to Respondents suit on the 22nd day of May, 2007 the Appellant filed a motion on Notice challenging the jurisdiction of the lower court to entertain the Respondent’s suit.
On the 1st day of June, 2007 the lower court entertained arguments on Appellant’s preliminary objection and on the 4th day of July, 2007 the court dismissed the Appellant’s preliminary objection in its entirety. Dissatisfied the Appellant appealed to this court.
As a recap the Respondents as plaintiff had commenced their suit at the court below to prevent the Appellant from conducting the local government elections in Abia State on the 19th day of May, 2007 or any other date on the ground that the National Electoral Commission had not released the Voters Register to the Appellant at the time the Appellant was poised to conduct the elections without the Voters Register.
It is to be noted that Section 182(1)(d)(i) of the Abia State of Nigeria Local Government Law No.2 of 2006 provides:-
“Where INEC or any other authority is unable to provide ABSIEC with Voters Register, it (ABSIEC) shall conduct the Local Government elections using the open secret ballot system (Option A4)”.
ISSUES FOR DETERMINATION
The Appellant in a Brief of Argument filed on 31/1/08 and deemed filed on 12/3/08 framed two issues for determination viz:
- Does the Federal High Court have jurisdiction to entertain Respondents suit in view of the reliefs therein sought against the Appellant, an Abia State Agency?
- Does the Respondents’ unit as constituted disclose any reasonable cause of action against the Appellant.
The Respondents filed their Brief of Argument on 12/3/08 and deemed filed the same day and they too formulated two questions for determination as follows:-
(a) Whether the Federal High Court possesses the requisite jurisdiction to entertain the suit in view of the reliefs sought therein are in the alternative and are against the Appellant which is an agency of Abia State and the Independent National Electoral Commission which was the 2nd Defendant at the lower court and an agency of the Federal Government.
(b) Whether the lower court was right to hold that the Respondents’ suit discloses a reasonable cause of action.
The Appellants on the 17/3/08 filed a Reply Brief.
I shall make use of the Issues as drafted by the Appellant since I find them more convenient.
ISSUE ONE
Do the Federal High Court have jurisdiction to entertain Respondent’s suit in view of the reliefs therein sought against the Appellant, an Abia State Agency?
Mr. Njikonye, learned counsel for the Appellant stated that the law is trite that when the jurisdiction of a court to hear a suit is questioned, it is the claims of the plaintiff (the Respondents herein) that would be examined to ascertain whether or not the court has jurisdiction. He cited Adeyemi v. Opeyori (1976) 9 & 10 SC 31 at 51; Obi v. INEC (2007) 45 WRN 1 at 66. He referred also to the Statement of Claim paragraph 15.
He further stated that the jurisdiction of the Federal High Court to grant declaratory and injunctive reliefs pursuant to the provisions of Section 251(1) (r) of the 1999 Constitution inures only when such declarative or injunctive reliefs are sought against the Federal Government or any of its agencies or agents. That the Appellant not being an agent or agency of the Federal Government, the court below lacks the jurisdiction to entertain Respondents’ suit. That the mere inclusion of INEC as the 2nd Defendant does not make any difference in our submissions. This is because the Respondents did not seek any substantive reliefs against INEC as the relief (iv) sought against INEC by the Respondents is an alternative relief. He went on to say that what determines jurisdiction is the main claim and not alternative or ancillary claims. That it follows that if a court lacks jurisdiction to entertain the main claims then it also lacks jurisdiction to entertain ancillary or alternative claims. He referred to W.S.W. Ltd v. I.S.W.U.N. (2004) 7 WRN 58 at 75; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Akinola v. University of Ilorin (2004) 35 WRN 79 at 98; Oloruntoba – Oju v. Dopamu (2003) 31 WRN 19 at 36.
In response, learned counsel for the Respondents, Mr. Nwaneri stated that by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. That it is conceded that the issue of jurisdiction or competence of a court to hear and determine any matter placed before it can be raised at any stage of the proceedings and can be raised for the first time on appeal. He cited Iyanda v. Laniba II (2002) 8 NWLR (Pt. 801) 267 at 292; Barclays Bank v. CBN (1976) 6 SC 175; Madukolu v. Nkemdilim (1962) NSCC 374.
The learned counsel for the Respondents traced the history or background of the Federal High Court. He cited Section 7(1) of the Federal Revenue Court Decree, 1973 (NO.13 of 1973, Laws of the Federation); Jammal Steel Structures ltd v. A.C.B. Ltd (1973) 1 All NLR Pt. 2 page 208; Bronik Motors ltd v. Wema Bank Ltd (1983) NSCC 226; Mandara v. Attorney-General Federation (1984) 1 SC NLR 311; Section 236 of the 1979 constitution; Section 230(1) of the 1979 constitution. Mr. Nwaneri further stated that it can be gathered from a proper reading of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria that Section 230(1) of the Constitution (Suspension and Modification) Decree NO. 107 of 1993 is in pari materia with its provisions. That cumulatively, Section 7 of the Federal High Court Act, 1973; Section 230(1) of the 1979 Constitution; the Federal High Court, (Amendment) Decree NO, 60 of 1991 and the Constitution (Suspension and Modification) Decree NO.107 of 1993 conferred on the Federal High Court its jurisdiction to hear and determine civil matters to the exclusion of any other court and this has crystallised into Section 251(1) of the 1999 Constitution. He cited Owena Bank of Nig. Plc v. Adeojo (2003) 17 NWLR (Pt. 848) 174 at 191; NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (Pt. 880) 107; Savannah Bank Nig. Ltd v. Pan Atlantic Shipping and Transport Agencies ltd (1987) 1 NWLR Pt. 49 P. 212; Section 272(1) of the 1999 Constitution of Federation Republic of Nigeria.
Learned counsel for the Respondents’ stated that when interpreting a particular section of a statute, the Section should not be read in isolation, the whole statute should be considered because the Section is part of the whole. See Awuse Y. Odili (2004) 8 NWLR (Pt. 876) 481; Idehen v. Idehen (1991) 6 NWLR (Pt. 198) P. 382; Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103 at 126; NPA v. Eyamba (2005) 12 NWLR (Pt 939) 409 at 442; Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554 at 602.
Learned counsel for the Respondents stated on that the law that determines the jurisdiction of the court is the law applicable when the action is instituted. He cited KLM Airlines v. Kumzhi (2004) 8 NWLR (Pt. 875) 231 at 259.
That the cause of action that gave rise to this appeal accrued on the 14th May 2007 and so applying the 1999 Constitution the Federal High Court is the appropriate forum for adjudication. He referred to NDIC v. Okem Enterprises Ltd (2004) 10 NWLR (Pt. 880) 107 at 184 – 185; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79.
Learned counsel said that the presumption of law is that nothing shall be intended to be out of the jurisdiction of a Superior Court of record except that which specifically appears to be so. He cited university of Ilorin v. Adeniran (2003) 1 NWLR (Pt. 849) 214.
Mr. Nwaneri for the Respondents further said that it is trite law that a party can plead in the alternative. That the pleas must be done separately and distinctly. He cited Egbe v. Adefarasin (1987) 1 NWLR (Pt. 1); Metal Construction v. Aboderin (1998) 6 SCNJ 161 at 170.
In reply on points of law learned counsel for the Appellant said the right position of the law is that for the Federal High Court to exercise jurisdiction over a subject matter in which the Federal Government or any of its agencies is a party, the substantive/main relief sought must be among those specified in Section 251 of the 1999 constitution of the Federal Republic of Nigeria or any other statute in force. That the Federal High Court does not have jurisdiction to adjudicate on claims against the State Government or any of its agencies or organs. He cited Onuora v. K.R.P. Co Ltd (2005) 16 WRN 1 at 12 -13; Okoyode v. F.C.D.A. (2005) 27 WRN 97 at 129.
That if the court lacks jurisdiction over the substantive claims, it also lacks jurisdiction over alternative claims in the same suit. He cited Akinola v. University of Ilorin (2004) 35 WRN 79 at 98.
That is a summary of the submissions in respect of whether or not the Federal High Court has the competence or jurisdiction to deal with a matter in which the disputing parties are of the Abia State Government and its agents or agencies. It is with that in mind that the point has to be stated that a statute must be read as a whole to get the correct meaning of any particular expression as a Section is part of the whole state. See Chime v. Ude (1996) 3 NWLR (Pt. 461) 379.
Where the words of a statute are clear and unambiguous, they should be construed as to give effect to their natural and literal meaning. Okumagba v. Egbe (1965) 1 NWLR 62; Berliet (Nig) Ltd v. Kachalla (1995) 9 NWLR (Pt. 420) 478; Ogbuanyinya v. Okubo (1979) 6 – 9 SC32.
Where the literal interpretation of a provision of a statute will result in some ambiguity or injustice, the court may seek internal aid within the body of the statute itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter. Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481; Obadara v. Presiding Ibadan West District Grade ‘B’ Customary Court (1964) 1 All NLR 336.
For our purpose I shall restate some relevant provisions of the Electoral Act, 2006, an Act of the National Assembly and some of those provisions are:-
Section 43:
The Commission shall establish sufficient number of polling stations in each Registration Area and shall allot voters in such Polling Stations.
Section 45:
(1) The Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the Political Party of the candidate and such other information as it may require.”
Section 11(4)
When a general election is notified by the Commission pursuant to Section 31 of this Act, the current official register of voters certified by the Commission in accordance with the provision of this Act shall be the official voters’ register for those elections and in the case of every by-election conducted under this Act the official voters’ register for use at such elections shall be the existing current register relating to the Senatorial district or the constituency concerned.
Section 16:
The Commission shall cause a voters register for each State to be printed, and any person or political party may obtain from the Commission, on payment of such charges a certified copy of any voters’ register for the State or for a Local Government or Area Councilor Registration Area within it.
For the Appellant it was strenuously argued that the Federal High Court lacks jurisdiction to entertain this matter and so the preliminary objection in that regard ought to have been granted. Also that merely adding the name of the Federal Agency of Independent National Electoral Commission (INEC) would not clothe the Federal High Court with the competence to adjudicate as the matter was within the domestic forum of Abia State Judiciary. Before tackling that poser I shall have to refer to some principles and judicial authorities to shed the necessary light as to what should be.
By virtue of Section 251(1), (q), (r) and (s) of the 1999 Constitution, jurisdiction to hear suits challenging or touching on the administration, management and control of the Federal Government or any of its agencies are vested exclusively in the Federal High Court. NEPA v. that Section. Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103; Omosonwan v. Chiedozie (1998) 9 NWLR (P. 566) 477.
Section 251(1) of the 1999 Constitution begins with “Notwithstanding anything to the contrary contained in this constitution” while Section 272 of the said Constitution is specifically made “subject to the provisions of Section 251. It follows that, as used in Section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the said Section. In regard to Section 272, Section 251 is directly relevant in that the former is made subject to it. Per Katsina-Alu JSC in N.D.I.C. v. Okem Ent. Ltd (2004) 10 NWLR (Pt. 880) 107 at 182.
That means that Section 251(1) (d) has conferred exclusive jurisdiction on the Federal High Court in specified matters notwithstanding Section 272(1) of the Constitution. This implies-that the jurisdiction conferred upon and exercised by the State High Court of Abia or any other including that of FCT Abuja in regard to those specified matters has been removed. See NDIC v. Okem Ent. Ltd (2004) 10 NWLR (Pt. 880) 107.
The use of the phrase “subject to the provisions of Section 251” in Section 272(1) of the 1999 Constitution indicates that the provisions of Section 251 overrides the provisions of Section 272 and circumscribes the jurisdiction vested under it in the High Court of a State. Stated differently, the provision of section 272(1) of the 1999 Constitution has specifically subjected the jurisdiction of the High Court of a State to the exclusive jurisdiction of the Federal High Court. N.P.A. v. Eyamba (2005) 12 NWLR (Pt. 939) 409; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Oke v. Oke (1974) 1 All NLR (Pt. 1) 443; Olusemo v. C.O.P. (1998) 11 NWLR (Pt. 575) 547; Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554; Ezenwosu v. Ngonadi (1992) 3 NWLR (Pt. 228) 154; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.
Wherever the expression “subject to” is used at the commencement of a statute it is an expression of limitation. It implies that what the Section or sub-Section is “subject to” shall govern, control and prevail over what follows in that Section or subsection of the enactment See Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 at 419.
I hereby quote some relevant provisions of the Electoral Act :-
Section 10(1), (2), (3), (4)
(1) The Commission shall compile maintain and update on a continuous basis, a National Register of Votes, in this Act referred to as the ”Register of Voters” which shall include the names of all persons entitled to vote in any Federal, State, Local Government or Area Council Elections.
(2) The Commission shall maintain as part of the National Register of Voters, a register of voters for each State of the Federation and State of the Federation and for the Federal Capital Territory.
(3) The Commission shall maintain as part of the Register of voters for each State and the Federal Capital Territory a Register of Voters for each Local Government and Area Council within the State and the Federal Capital Territory.
(4) The Register shall contain in respect of every person the particulars required in the Form prescribed by the Commission.
The Electoral Act, 2006.
“PART II
PROCEDURE FOR LOCAL GOVERNMENT COUNCIL ELECTIONS
Section 120
Voting in Local Government Council Elections shall be by open-secret ballot.
Section 121:
The procedure for filling nominations and the casting and counting of votes for Local Government Council elections shall be the same as is applicable to other elections under this Act”;
It is clear therefore from the above-stated authorities inclusive of the statutory provisions especially the electoral Act, 2006 that the Federal High Court has been given the necessary mandate to consider or adjudicate in the case in hand. It is safely within the concept of statutory jurisdiction.
By statutory jurisdiction of the court is meant that jurisdiction which is expressly conferred by the Constitution or other enactment. Inherent jurisdiction or inherent power of the court on the other hand is that which is not expressly spelt out by the Constitution or by Statute or rule but which can by necessity be invoked by any court of record to supplement its express jurisdiction and powers. It is an invaluable adjunct to the express jurisdiction or powers conferred on the courts of record by the Constitution or any statute or rule of court Akilu v. Fawehinmi (NO.2) (1989) 2 NWLR (Pt. 102) 122.
Inherent power does not extend the jurisdiction of a court of record, it only lubricates its statutory jurisdiction and makes it work. Akilu v. Fawehinmi (NO.2) (1989) 2 NWLR (Pt. 102) 122 at 197, 199 per Nnaemeka -Agu JSC,
The important difference between the statutory jurisdiction of the court and the nature of its inherent jurisdiction is that the source of the statutory jurisdiction of the court is the statute itself, which defines the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such inherent jurisdiction are not easy to define, and indeed appear to elude definition. The inherent jurisdiction could therefore-be invoked in an apparently in exhaustive variety of circumstances and may be exercised in different ways; thereby presenting a peculiar aspect which is amorphous, ubiquitous and pervasive in its operation that it defies the challenge to determine its equality and to establish its limits. Akilu v. Fawehinmi (No.2 ) (1989) 2 NWLR (Pt. 1020 122 at page 198.
From the provisions of the Electoral Act, 2006 specifically Sections 10(1), (2), (3), (4), 120, 121 that there is no way a State electoral commission or any institution thereby can conduct any election especially a local government election without the necessary implement in this regard the Voters Register which only the Independent electoral Commission of the Federation can effect and make available for use.
Furthermore the mode for the election for local government offices having been provided for as open secret ballot cannot be varied or jettisoned by a State legislature and so the attempt by the Abia Assembly to promulgate an Option A4 in the event that there is no voters’ register is clearly outside the realm of their power. It is for that reason that the Abia State Assembly or any of the State agencies need be reminded that a State Legislation such as Section 182 (1) (d)(i) inconsistent with a statute of the National assembly would without more give way to the superior Legislation and to that extent of the inconsistence become void. see the Australian case of Victoria v. Commonwealth (1937) 58 CLR 618; The Council of the University of Ibadan v. Adamolekin (1967) 1 All NLR 213.
As a follow-up it was necessary for the plaintiff/Respondent to have made INEC a party. This is so because where a necessary party is not joined in a judicial process, the court or tribunal lacks jurisdiction to entertain the suit because the non-joinder of a necessary party is incurably fatal to the suit or action. Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481; Tafida v. Bafarawa (1999) 4 NWLR (Pt. 597) 70.
The situation is simple enough that this issue is in favour of the Respondent as I answer positively since a matter against that State Government agency as the case in hand cannot be effectually and conclusively determined without the Federal Agency, INEC being a necessary party.
ISSUE TWO
Does the Respondent’s suit as constituted disclose any reasonable cause of action against the Appellant.
Learned counsel for the Appellant submitted that before a suit could be said to have disclosed a cause of action, the plaintiff, must have a legally cognisable right which is threatened or infringed upon by the conduct or intended conduct of the Defendant. That where by granting the claims of a Plaintiff, an extant statute would be contravened, or there is no iota of law supporting plaintiff’s claims the suit must be held not to disclose a reasonable cause of action. He cited Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 189. He also referred to Section 182(1)(d)(i) of the Abia State of Nigeria Local Government Law NO.2 of 2006. That in no paragraph of the Respondent statement of claim did they aver that the Appellant (ABSIEC) was about to conduct the Local Government Elections in the ballot system (Option A4) prescribed by statute. Also that in no paragraph of the Respondents Statement of Claim did they aver that Section 182(1) (d) (I) of the Abia State Law is unconstitutional. That the word “shall” used in the Local Government Law mandates the Appellant not to abdicate its statutory responsibility of conducting, Local Government elections in Abia State on the excuse that INEC had not provided Voters Register. That in the circumstances the Respondents’ suit is not only unsupportable by law but seeks to violate the Abia State Local Government Law NO.2 of 2006 and so the suit discloses no reasonable cause of action.
In response, learned counsel for the Respondents stated that the issue of who has the requisite standing to bring an action is very vital to the proper determination or resolution of the issues presented before the court. He cited Gambiola v. Esezi (1961) 1 All NLR 584 at 588; Adesanya v. President of Nigeria (1981) 2 NCLR 358 at 383.
That it is without a doubt that the rights of the respondents who are elective political office seekers to have the election conducted in accordance with the spirit and principles of the Electoral Act, 2006 and the constitution of the Federal Republic of Nigeria 1999 are being infringed upon by the act of the Appellant. That a statement of claim discloses a cause of action in the plaintiff and a legal liability in the defendant if the facts alleged therein ex facie constitute (a) a legal right vested in the plaintiff and (b) a breach or violation of that legal right by the defendant. He cited Ibrahim v. Osim (1986) 3 NWLR P. 257.
Mr. Nwaneri further said that pursuant to part II of the Schedule to the 1999 Constitution and paragraph II thereof, the National Assembly on the 2nd June 2006 enacted into law the Electoral Act, 2006 which provided for the compilation, maintenance, updating a national voters register which shall be used for all Federal, State and Local Government Area Elections. See Sections 10 and 11 of the Act. He also referred to Sections 120, 121,43, 45 thereof.
On this matter of cause of action I shall refer to: Attorney-General Kwara State v. Olawale (1993) 1 NSCC 110 per Nnaemeka-Agu JSC.
- A cause of action means a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. It involutes two person one of whom has the right to a judgment against the other. It comprises every fact which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court.
- In practice, because of the paramountcy of an issue of jurisdiction it is sometimes necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue on limine.
When, the issue of jurisdiction is determined on the pleadings it is determined on the plaintiffs’ pleading in his statement of claim and not on the defendants answer in the statement of defence.
- When the plaintiff’s pleading in the statement of claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other it is the proper material to determine that issue. But when the court, in exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted and sees the need to hear evidence in order to inquire whether in fact its jurisdiction has been ousted or when the issue of jurisdiction has been taken after evidence has been called; the court cannot in either case completely close its eyes to the evidence called.
A preliminary objection to the competence of an appeal can be validly raised in the respondent’s brief of argument consequently, there is nothing wrong in the procedure a respondent adopted in the appeal by raising their preliminary objection to the appeal in their briefs of argument Uwaifo v. Uwaifo (2005) 3 NWLR (Pt. 913) 479 at 494; Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16.
I have entered into consideration of this issue 2 to fulfill all righteousness as it seems to me that in answering issue 1, this follow-up issue is answered likewise. The question of whether or not there is a reasonable cause of action is clearly a moot point as it can be seen very visibly that the Plaintiff/Respondent had sufficient cause to come before the Federal High Court to have his grievance ventilated and considered.
In totality the lower court was right in dismissing the preliminary objection and asserting firmly that it had jurisdiction. It is in that view that I dismiss this appeal as lacking in merit and affirm the decision of the court below. I award costs of N10,000 to the Respondents to be paid by the Appellant.
Other Citations: (2008)LCN/2792(CA)
