All Nigeria Peoples Party (Anpp) & Ors V. Benue State Independent Electoral Commission & Ors (2005)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Benue High Court, delivered on 23/4/2004, sitting in its original jurisdiction, at Adikpo Judicial Division in Benue State, declining jurisdiction to entertain the suit of the plaintiffs against the defendants. The facts leading to this appeal, as disclosed are as follows:

The 1st plaintiff as a registered political party in Nigeria, sponsored the 2nd and 3rd plaintiffs as candidates for Chairman and Vice-Chairman for Election into Kwande Local Government Council of Benue State. The 1st plaintiff also sponsored councillorship candidates for all the Wards in Kwande Local Government Council of Benue State. The said election was conducted in Kwande Local Government Area. After conducting the elections in Kwande Local Government, results of the elections for the office of the Chairman, Vice-Chairman and Councilors were collated and the officials of the respondents on 28/4/2004:

(a) Completed the Certificate of Return;

(b) Declared the results of the poll; and

(c) Read the completed Certificate of Return aloud in the place of counting and gave copies of the result/Certificate of Return to the agents of the appellants, the Police, the N.O.A. and the S.S.S. present at the collation centre.

While the plaintiffs were waiting for the 1st and 2nd defendants to publish the results and declare in the gazette, newspapers, or any other media deemed appropriate as required by the State Electoral Law 2002, (as amended), the 1st and 2nd defendants on the 29/4/2004 announced over the State Radio in Makurdi, that the elections into Kwande Local Government have been postponed indefinitely. Highly dissatisfied with the decision of the 1st and 2nd defendants, the plaintiffs took out an originating summons asking the trial court to determine whether the 1st and 2nd defendants have the constitutional and legal power to postpone elections in Kwande Local Government Council after the said elections were validly conducted and the results duly declared and returned, by the returning officers for the local government in favour of the plaintiffs. When the originating summons was pending before the trial court, the defendants by motion filed, challenged the jurisdiction of the trial court to hear and determine the suit of the plaintiffs. In its ruling on 23/4/2004 the trial court declined jurisdiction.

The plaintiffs by writ of summons filed on 31/3/2004 claimed the reliefs as follows:

1. A declaration that it is illegal, unconstitutional and ultra vires the powers and statutory duties of the 1st and 2nd defendants to have announced as they did through Radio Benue on the 29th day of March, 2004 that elections into Kwande Local Government Council (L.G.C.) have been postponed indefinitely, after the said elections were duly and validly conducted on the 27th day of March, 2004 and results duly and lawfully declared in favour of the plaintiffs on the 28th day of March, 2004.
2. A declaration that the only power vested in the 1st and 2nd defendants after the elections into Kwande L.G.C. were duly conducted and results duly declared, was for the 1st and 2nd defendants to have published the results in the State gazette, newspapers or any other media deemed appropriate, and that the announcement over Radio Benue that the elections have been postponed in the circumstances was an act of statutory illegality, unconstitutional and ultra-vires, null and of no effect.
3. An order of court directing the 1st defendant either by itself or through its agents/servants to publish in State gazette, newspapers or any other media deemed appropriate, results of the elections conducted in Kwande L.G.C. of Benue state on the 27th day of March, 2004 as duly and validly declared by the Returning Officer of the Local Government Area on the 28th day of March, 2004 as evidenced by exhibits A1 – A15 annexed to the supporting affidavit.
4. An order of perpetual injunction restraining the defendants from carrying into effect or giving effect to the announcement that election into Kwande L.G.C. have been postponed, on the ground that the elections were duly conducted and results validly declared as required by law.
5. An order of injunction restraining the defendants from doing any act prejudicial to the results of the elections aforesaid as evidenced by exhibits A1 – A15 or doing anything or act capable of affecting or prejudicing the rights and interest of the plaintiffs in the said results as duly declared.
6. An order directing the defendants to swear the 2nd and 3rd plaintiffs into the office of Chairman and Vice-Chairman of Kwande L.G.C. having duly been returning winner at the said election.
7. Any other legal or equitable order that meets the justice of this case.

Statement of facts and particulars supporting the application are as follows:

1. The 1st plaintiff is one of the registered political parties in Nigeria, and during the Local Government elections held on 27/3/2004, the 1st plaintiff sponsored the 2nd and 3rd plaintiffs as its candidates for the office of Chairman and Vice-Chairman of Kwande Local Government Council of Benue State within jurisdiction as well as 15 councillorship candidates.
2. The 2nd and 3rd plaintiffs are politicians and contested the election of 27/3/2004 in Kwande Local Government as averred herein before in paragraph 1 hereof.
3. The defendants were responsible for the elections of 27/3/2004 which they conducted, declared the results and copies of the results as declared duly given to the plaintiffs as required by the Electoral Act/Law.
4. On 29/3/2004, the defendants in breach of the Electoral Act/Law and acting ultra-vires, announced over the Radio Benue that the elections into Kwande Local Government have been postponed indefinitely.
5. Whereof, plaintiffs are highly aggrieved by the decision of the defendants, on the grounds that same is ultra-vires and unconstitutional and plaintiffs pray the court for interpretation of the provisions of the Electoral Law 2002, (as amended) of Benue State, and the Constitution of Nigeria, 1999.

The originating summons was supported by an affidavit and two verifying affidavits of 9, 7, and 5 paragraphs sworn to by Mr. Samuel Aga (State Secretary of the 1st plaintiff), Hon. Didymus Tamen (1st plaintiff collation agent), and Hon. Basil Chianson (the State collation agent for 1st plaintiff) respectively in paragraphs 2-8 the affidavit in support of the originating summons which are relevant hereto, it is deposed as follows:

1. That I am the State Secretary of the 1st plaintiff and by my position, I keep copies of all correspondence and other documents of the party (the 1st plaintiff herein).
2. That I know as a fact, that on the 27/3/2004, elections were held in Kwande Local Government Area of Benue State for the office of the Chairman, Deputy Chairman and Councilors for the Local Government Council.
3. That I know as a fact, that after the elections, results of the election to the offices of the Chairman, Deputy Chairman and Councilors were collated and declared.
4. That I know as a fact, that after the counting of votes and the results duly ascertained, the returning officer for the local government elections on the 28/3/2004:

(a) Completed the Certificate of Return.

(b) Declared the result of the poll and read the completed certificate of return aloud in the place of counting.

(c) Gave copies of the certificate of return to the agents of the 1st plaintiff, the Police, National Orientation Agency and the State Security Services present at the collation centre.

5. That I know as a fact, that the copies of the Certificate of return in respect of the chairman and councillorship elections issued to the party agents of the 1st plaintiff and which I keep custody of, for the 1st plaintiff are annexed as exhibits A1 – A15 respectively.
6. That I know as a fact, that despite exhibits A1 – A15, that 1st and 2nd defendants announced over Radio Benue on 29/3/2004, that elections in Kwande Local Government Council have been postponed indefinitely.
7. That I know as a fact, that p1 and 2nd defendants through their agents duly conducted election in Kwande Local Government Council and produced the results, copies of which are exhibits A1 – A15.
8. That my party, ANPP, the pt plaintiff herein, is highly dissatisfied with the acts of the defendants as deposed in paragraph 6 hereof and decides to seek for the construction and interpretation of the Electoral Laws of the Federation and Benue State.

The 1st verifying affidavit of facts in paragraphs 1 – 6 deposed as follows:

1. That I was collated agent for the Chairmanship elections which result was collated on the 28/3/2004 at Adikpo.
2. That the collation of the results from the various wards, which began at 8.00 hours on the 28/3/2004 was closed at about 19.15 hours.
3. That at the close of collation, the returning officer for Kwande Local Government Elections, Mr. J.T. Yaga, declared the result in public, completed form EC8E, i.e. BESIEC form No. 000009 (Declaration of results of Election for Chairman) duly signed it and I counter signed as the ANPP agent.
4. After I counter signed form EC8E, the returning officer gave me a copy of the declared result and gave same to the Police, National Orientation Agency, SIIB and SSS.
5. That upon paragraph 4 hereof, I followed the Electoral officer and the returning officer for Kwande to BESIEC Headquarters Makurdi where I handed the copy of the counter part copy given to me to Mr. Basil Chianson who was the State collation agent of the 1st plaintiff.
6. That, while at the BESIEC office Makurdi, I saw the 1st defendant officers together with Basil Chianson went into the office to register the declared result.

While the second verifying affidavit of facts in paragraphs 1-4 deposed as follows:

1. That I was the State collation agent of the 1st plaintiff herein, at the Local Government Elections in Benue State held on the 27/3/2004.
2. That I verify the facts in the affidavit of Samuel Aga as true and correct.
3. That I know as a fact, that Messrs. Maxwell Kaai and J.T. Yaga, electoral officer and returning officer respectively, for Kwande Local Government Elections, submitted the original results of elections for Chairman and Councillors to the 1st defendant’s office in my presence at about 11.30p.m on the 28/3/2004.
4. That I know as a fact, that the 1st plaintiff’s agent and I saw the 1st defendant’s officers record the results as declared, before I left the 1st defendant’s office.

Forms EC(8C) and EC(8B) were exhibited as exhibits A and A1 – A15 with the 1st affidavit dated 31st March, 2004 for Kwande Local Government, titled Benue State Independent Electoral Commission (BESIEC). Exhibit A is the declaration of results of election for Chairman, exhibit A is shown at the bottom to be issued to Mr. Tersur Yachiga of ANPP as “having satisfied the requirement of the law and scored the highest number of votes thereon declared the winner and is returned elected.”

The 2nd plaintiff was recorded in exhibit A as scoring 30, 438 votes. Exhibited also is the summary of results of the 12 wards collated and signed by the respective named returning officers with date reading 27/3/2004.

The appellants’ question for determination before trial court was as follows:

1. Whether by virtue of sections 9 and 51 of the Benue State Electoral Law 2002 (as amended) read together with the provisions of Sections 60, 110 and 111 of the Electoral Act, the 1st and 2nd defendants herein, have the constitutional and legal powers to postpone election into Kwande Local Government Council after the said elections were validly concluded and results duly declared and returned by the returning officer for the Local Government in favour of the plaintiffs.

Upon service of the writ of summons, a motion on notice in the form of preliminary objection to the hearing of the suit was filed on behalf of the defendants/applicants on 8th day of April, 2004.

The motion was supported by an affidavit of 5 paragraphs, praying:

“All order striking out this suit for being incompetent and the court lacks jurisdiction to entertain the same.”

The grounds for the motion were set out as follows:

(a) The claim and reliefs sought by the plaintiffs/respondents are matters for Local Government Election Petition Tribunal.

(b) The Election Tribunal only to the exclusion of all other courts has jurisdiction to hear and determine matters relating to Election Petition.

(c) The claim of the plaintiffs and the reliefs thereon are outside the ambit of the jurisdiction of the Honourable court.

The learned trial Judge considered the arguments of the counsel to the parties, and found that since the provisions of section 70(1)(a-c) of the State Local Government Electoral Law 2002 (as amended) appears to have ousted the jurisdiction, his court had no jurisdiction to entertain the action and accordingly, he struck out the suit as prayed by the defendants/applicants.

The foregoing constitute the material evidence upon which the trial court based its decision in favour of the respondents as foresaid.

Being dissatisfied with the said ruling of 23/4/2004, the plaintiffs (herein referred now as appellants) appealed therefore to this court with a notice of appeal which carries (3) three grounds of appeal as follows:

1. The learned trial Judge erred in law when he struck out suit No: AHC/8/2004 on the grounds that Benue State High Court (herein referred as the trial court) has no jurisdiction to hear and determine the case, and that the appropriate court to hear the complaints of the appellants in the suit is the Local Government Election Tribunal and this error has occasioned a miscarriage of justice.

Particulars

(i) The issues raised by the appellants in the originating summons do not come within the grounds for presenting petitions under section 73(1) of the Benue State Electoral Law 2002 as amended.

(ii) One of the main issues raised in the summons was whether or not elections were held in Kwande Local Government Area on 27/3/2004.

(iii) By the originating summons, appellants wanted the trial court to decide whether or not the 1st and 2nd respondents can postpone an election that was duly conducted and results known.

(iv) An election petition must have a statutory first respondent as successful candidate, by virtue of Section 72(2) of the Benue State Electoral Law 2002.

(v) By Section 272(1) of the 1999 Constitution, the learned trial Judge has jurisdiction to hear and determine the originating summons of the appellants.

(vi) No state law can oust the jurisdiction of a State High Court.

2. The learned trial Judge erred in law, when he held that Section 70(1) of the Benue State Electoral Law 2002, ousting the jurisdiction of the Benue State High Court in respect of the electoral matters under the law was unconstitutional and void and this error has occasioned a miscarriage of justice.

Particulars

(i) Section 272(1) of the 1999 Constitution vests the Benue State High Court with jurisdiction to “hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.”

(ii) The originating summons of the appellants is a civil proceedings questioning the existence or extent of legal right, power and duty of the respondents, to postpone an election that was duly conducted and results known and declared in accordance with the governing law.

(iii) Section 70(1) of the Benue State Electoral Law 2002, is in conflict with Sections 6(6)(a) and 272(1) of the 1999 Constitution.

The learned trial Judge erred in law when he failed and, or refused to consider all issues raised by learned counsel to the appellants on 8/4/2004, while opposing the motion filed by the respondents and this has occasioned a miscarriage of justice.

Particulars

(i) On 8/4/2004, learned counsel to the appellants had argued that the issues raised in the originating summons, do not come within the purview of the grounds for presenting election petitions under the Benue State Electoral Law 2002, amongst other issues.

(ii) The issue have of any others were not considered by the learned trial Judge as he was bound to do.

From these grounds of appeal, the appellants formulated only one issue for determination. The appellants’ issue for determination runs thus:

“Whether Ba’aki J. was right to have declined jurisdiction to hear the originating summons of appellants and in any case, whether the Benue State Electoral Law 2002, purporting to oust the jurisdiction of Benue State High Court to hear electoral matters is constitutional.”

The 1st – 3rd respondents jointly formulated their own issue for determination from the three grounds of appellants’ grounds of appeal as follows:

“Whether the trial High Court was right in declining jurisdiction to adjudicate over the subject matter of appellants’ originating summons in view of the relevant constitutional and statutory provisions.”

On the other hand, 4th – 6th respondents jointly formulated two issues from the appellants three grounds of appeal, for determination. These are:

“1. Whether the Benue State High Court has jurisdiction to entertain the suit (originating summons) of the appellants.

2. Whether Section 70 of the Benue State Electoral Law 2002 is ultra-vires the Constitution of the Federal Republic of Nigeria 1999 and thereof null and void.”

As is required by the rules of this court, parties to this appeal filed and exchanged briefs of arguments. The appellants filed their briefs of argument on 2/9/2004 and a reply brief on 5/4/2005. For the 1st-3rd and 4th – 6th respondents they later on 31/3/2005 filed their joint brief of argument by leave of this court granted on 19/5/2005. The learned counsel for the 4th – 6th respondents, have on 20/4/2005 filed a notice of preliminary objection challenging the competency of the notice of appeal and the grounds of appeal as incompetent. The notice of the said preliminary objection was rather withdrawn and struck out on 19/5/2005.

However, it is to be noted that the 4th – 6th respondents by motion on notice filed on 27/10/2004 applied to this court to be joined a co-respondents in the appeal, being persons directly affected in the outcome of the appeal and the motion was accordingly granted on 17/3/2005, with prayers No.2 – 3 refused and struck out.

At the hearing of the appeal, Mr. J.S. Okutepa Esq. learned counsel for the appellants, adopted their brief of argument, and urged this court to allow the appeal and set aside the ruling of the trial court. On his part, Mr. J.K. Ageh Esq. leading G.A. Uchi Esq. for 4th – 6th respondents, also adopted their brief of argument, and urged that the appeal be dismissed while V.Y. Ayongur (Mrs.) Director for Civil Litigation, Benue State Ministry of Justice stood in for 1st-3rd respondents, adopted their own brief of argument, and urged that the appeal be dismissed.

I have had a careful study of the issues raised by the parties for determination. I am of the view that the issues formulated by the appellants and the respondents are the same and had the same effect.

I shall take them together in consideration of this appeal.

Under the lone issue for determination distilled from the (3) three grounds of appeal, the complaint of the appellants is that the learned trial Judge was in error when he declined jurisdiction in this case. He submitted that their originating summons together with the affidavits in support clearly prima-facie showed that:

(a) On 27/3/2004, an election to the office of Chairman, Vice-Chairman and Councilors in Kwande L.G.C. was conducted;

(b) Votes were collated and results declared to the hearing of the members of the public present;

(c) Certificates of Return were duly issued;

(d) The 1st and 2nd respondents, despite the above, announced the postponement indefinitely of the said election over the State Radio on 29/3/2004.

The appellants being dissatisfied with the postponement, questioned the power/authority of the respondents’ act over the said election before the trial court. The trial Judge decided that the issue raised/complained against fell exclusively within the jurisdiction of the local government election tribunal. He further contended that the learned trial Judge’s finding with the greatest respects, was in grave error because their complaint in the originating summons raised the question of “the existence or extent of a legal right, power, duty and or obligation,” of the 1st and 2nd respondents to postpone an election that had been conducted and concluded. This, according to him, is within the competence of the jurisdiction of the trial court by virtue of section 272(1) of the 1999 Constitution of Nigeria.

Consequently, the learned counsel urged this court to hold that the trial court was clearly in error, in reaching such conclusion by relying on Section 70(1) of the Electoral Law 2002 which purports to oust jurisdiction of the court.

Further submitted that, Section 70(1) of the Law 2002 (supra) relied upon by the learned trial Judge to come to conclusion that, “only the Local Government Election Tribunal has jurisdiction to hear the appellants’ complaint contained in the originating summons,” is of no moment to the case. That for any electoral matter to be within the jurisdiction of Election Tribunals created by section 70(1) of the said State Law, such complaint/matter must be brought within the purview of the provisions of sections 70(a-c) and 73(1)(ad) of the Electoral Law aforesaid. It is not every matter incidental or ancillary to elections conducted in a local government, that can be brought before the Election Tribunal created in section 70(1) of the Electoral Law aforementioned. Matters to be taken to the Tribunal further contended, must come within the grounds stipulated in the Electoral Law. To support this point, the following cases were cited, Musa v. NEC (1989) 1 NEPLR 20 at 25; Princes Iduoze & 1 Or. v. Ogbeifun & Ors., 3 NEPLR 98 at 107; Ibrahim v. INEC (2003) 1 WLRNC (Pt.4) 29 at 54; (1999) 8 NWLR (Pt. 614) 334; Abimbola v. Aderoju (1999) 5 NWLR (Pt.601) 100 at 109; Adebiyi v. Babalola (1993) 1 NWLR (Pt. 267) 1; Nwabochi v. Gift (1998) 12 NWLR (Pt.579) at 522.

The learned counsel, further submitted that the subject matter in the originating summons was not questioning the validity of the said election or the return thereof, but rather the power exercised after the elections were successfully conducted and concluded on 27/3/2004. Therefore, the trial court should not have declined the jurisdiction. That in the light of the authorities cited, and their submissions herein, the counsel urged this court to hold that the learned trial Judge was in error to hold that, the matter complained of in the originating summons ought to have been determined by the Election Petition Tribunal created by section 70(1) of the Electoral Law 2002 of the State.

Still on this lone issue, the learned counsel for the appellants submitted that even if the complaints of the appellants come within the ambit of sections 70(1) and 73(1)(a – d) of the State Electoral Law 2002, (as amended) (though not conceding) the trial court was still with jurisdiction to hear the suit of the appellants, because section 70(1) of the said law which purports to exclude “any other tribunal or court” to hear and determine the issue or those in section 73(1)(a-d) of the said law are in direct conflict with the provisions of section 272(1) of the 1999 Constitution and by virtue of section 1(3) of the same Constitution; Section 70(1) of the said Electoral Law (as amended) is void. That since the Constitution is supreme, no State legislature can oust the jurisdiction of the High Court of any State in Nigeria. To support this point, section 1(1) and (3) of the 1999 Constitution, read together with section 270(1) of the same Constitution were cited. Also cited were the following cases: Mil. Gov. of Ondo State v. Adewumi (1988) 3 NWLR (Pt.82) 280; Umukoro v. Ogaga (2004) All FWLR (Pt.211) 15 at 1561 – 1563; (2003) 14 NWLR (Pt. 839) 118; Ikine v. Edjerode (2002) FWLR (Pt.92) 1775 at 1798- 1799; (2001) 18 NWLR (Pt. 745) 446; Okulate v. Awosanya (2000) FWLR (Pt.25) 1666 at 1689; (2000) 2 NWLR (Pt. 646) 530; and Odugbo v. Abu (2001) FWLR (Pt.69) at 12911-1292; (2001) 2 NWLR (Pt. 646) 530.

The counsel urged this court to hold so, particularly, having regard to Sections 272(1) and 6(6)(a) and (b) of the 1999 Constitution. The learned counsel also urged this court to hold that the reasoning of the learned trial Judge on p. 27 of the record, which says:

“I do not support the submission that section 70(1) of the Benue State Electoral Law is inconsistent with the 1999 Const… The provision of section 70(1) of the Electoral Law does (sic) not in any way appear to be inconsistent with the provisions of section 272(1) of the 1999 Constitution. It has only ousted the jurisdiction of the State High Court in the same way section 251 of the same Constitution has excluded State High Courts and others from entertaining civil matters and causes listed in sub-paragraphs (a – s) thereof.”

Is clearly erroneous in points of the law and a serious misconception in constitutional construction. That once the learned trial Judge came to the conclusion that section 70(1) of the said law ousted the jurisdiction of the trial court, he ought to have proceeded to declare the said section null, void and of no effect, and then assumed jurisdiction to hear the suit of the appellants. Having not done so, the learned counsel submitted, the learned trial Judge committed, grave constitutional error when he struck out the suit of the appellants.

The error, the learned counsel stated, has caused a serious miscarriage of justice.

Furthermore, the learned counsel for the appellants contended that the learned trial Judge demonstrated grave misconception and lack of understanding of the constitutional issue raised before him and concept of the supremacy of the constitution when he (the trial Judge) adjudged that section 70(1) of the said Electoral Law, (as amended), was not inconsistent with the provisions of section 251(1) and section 285 of the constitution 1999 because ouster clauses were also provided in the sections of the constitution. By concept of the supremacy of the constitution, it means the constitution is only subject to itself and no any other law. The following cases were cited to supported this point – INEC v. Musa (2003) 10 WRN 1 at 40 – 41; (2003) 3 NWLR (Pt. 806) 72; A.-G., Ondo State v. A.-G., Federation (2002) 9 NWLR (Pt. 772) 222.

He also submitted that the jurisdiction of courts created by the Constitution can only be removed by taking it away or limiting it by the same Constitution. That no State Legislation can limit the jurisdiction of the State High court, (Benue State High Court inclusive) because the High Court is a creation of the Constitution (see section 270(1)), and as such, the jurisdiction of the High Court cannot be ousted by the said Electoral Law 2002.

Finally, the counsel on behalf of the appellants urged the appeal to be allowed and resolved the lone issue in the appeal in favour of the appellants. The counsel also prayed this court, after allowing the appeal, to proceed to pronounce on the issue raised in the originating summons, by virtue of section 16 of the Court of Appeal Act or to make the appropriate order that meets the justice of this matter.

In the brief filed on behalf of the 1st – 3rd respondents, their learned counsel in responding to the contentions made for the appellants, submitted that the decision of the trial court was right and proper having regards to questions raised for determination, the reliefs sought and the facts relied upon for the grant of the claim. The Election Petitions are “sui-generis” and not ordinary civil claims hence, the need for separate legislation governing them. The counsel cited page 1448 of Black’s Law Dictionary 7th Edition for the definition of the term “sui generis” as “of its own kind or class, unique or peculiar.” That in Essays on Civil Proceedings by A. Obi Okoye, vol. 2, Cap. 6 at p. 1 thereof, the learned author has this to say in relation to Election Petitions:

“… An Election Petition is strictly a statutory proceeding founded on particular set of electoral laws and regulations. The particular court where the petition shall be presented, those entitled to present the petition, those against whom the petition may be presented, the grounds for presenting the petition, the manner of presenting the petition and generally the conduct of the entire proceedings including any right of appeal, are matters to be provided for by the particular Electoral Laws, Rules, and Regulations which gave rise to the present petition. That the ordinary rules of procedure governing the conduct of civil proceedings are generally inapplicable except as may be expressly stipulated by the relevant electoral legislation.” See Chief Nelson T. Gbe v. Esewe (1988) 4 NWLR (Pt.89)435 and Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1.

The learned counsel submitted that the provisions of section 70(1) of the said Electoral Law 2002 are inconsonance with the provisions of section 285 of the 1999 Constitution which relates to the National Assembly, Governorship and the State Legislative Houses Elections. The counsel contended that the submission of the appellants’ counsel that section 70(1) is inconsistent with the 1999 Constitution thereof is misconcieved. That Election Petitions are not ordinarily civil proceedings, therefore the express constitutional provisions for empowerment for specific legislation for local government elections clearly exclude the application of section 6(6) and 272(1) of the 1999 Constitution. The learned counsel cited the case of A-G., Abia State & 36 Ors. v. A-G., Federation (2002) 17 WRN 1 at pp. 131 line 20 – 25, pp. 206 – 207 lines 30 – 40, p. 174 lines 30 – 35 and pp. 183 – 184 lines 40 – 20; (2002) 6 NWLR (Pt. 763) 264. In this case, the Supreme Court held that the postponement of election is regarded as part of procedure regulating elections and the power to postpone election is provided for under section 16 of the Electoral Act 2002, (see p. 81 lines 10 – 15).

Learned counsel for the 1st – 3rd respondents also contended that the claim of the appellants (before the trial court) was on an election matter and the jurisdiction for such matters is specifically conferred on the Election Tribunal. He said that a cursory look at the question for determination and the relief claimed will confirm this assertion. He cited pp. 2 – 4 of the record of appeal to support this assertion. That since the jurisdiction of the trial court is expressly excluded in the matters of the local government elections, the trial court acted properly in striking out the suit of the appellants. The counsel further cited the case of AD. v. INEC & Ors., (2004) 1 E.P.R. 288 at 307 where it was held that, “where jurisdiction is not expressly conferred by statute, a court should not interpret the provisions so as to confer jurisdiction by implication. On jurisdiction, the counsel also referred to the case of Madukolu v. Nkemdilim (1962) All NLR (Pt.11) 581 at 589 – 590; (1962) 2 SCNLR 341. Finally, the counsel urged the appeal to be dismissed, and uphold the decision of the trial court after this court considers the argument of the 1st and 3rd respondents in support of the vital issues of jurisdiction.

Learned counsel for the 4th – 6th respondents in their brief, responded vigorously to the submission of the appellants on this issue of jurisdiction. The learned counsel submitted that, the originating summons of appellants showed without doubt that the appellants’ complaints concerned with the power of the respondents to postpone the election into Kwande L.G.C. and also asked the trial court to order the respondents to swear into office the 2nd – 3rd appellants as Chairman and Vice-Chairman respectively, the reliefs which the trial court declined jurisdiction. On jurisdiction of a High Court to entertain a matter, the learned counsel cited the cases of Oba J.A. Aremo II V.S.F. Adekanye & 2 Ors. (2004) All FW.L.R. 2113 at 2129; (2004) 13 NWLR (Pt. 891) 572 and quoted the decision of Edozie J.S.C. (as he then was) and the case of Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31.

The learned counsel submitted that since the subject matter of the claim being election, by virtue of sections 70, 72 and 73 of the State Electoral Law 2002, the trial court is prevented from entertaining the matter. He cited the case of Chief Agu & Anor. v. Peter A. Odofin & Anor. (1992) 3 SNJ 161 at 168; (1992) 3 NWLR (Pt. 229) 350. Where Karibi-Whyte J.S.C. (as he then was) reading the leading judgment stated”

“One of the essential elements for the exercise by the court of its jurisdiction is that the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.” See also Madukolu v. Nkemdilim (supra).

The learned counsel submitted that having complained on unlawful postponement of election and having prayed for an order validating the said elections, the appellants complaints are out of jurisdiction of the trial court, and that the trial Judge was correct when he declined jurisdiction to entertain the appellants’ matter by virtue of sections 70(1)(a-c) and 71, and 55 of the Electoral Law 2002.

On the issue of inconsistency, the learned counsel submitted that, sections 70(1) 71, and 73(1)(a-d) of the 2002 State Electoral Law are not inconsistent with the provisions of section 272(1) of the 1999 Constitution. He contended that, the said section 272 is subject to other provisions of the Constitution, and such other provisions include section 4(6) and (7) of the Constitution. These subsections empower State Assembly to make Laws “on any matter not included in the executive Legislative list set out in part 1 of the second schedule to the Constitution.” That item 22 on the exclusive legislative list clearly excludes “elections to a local government councilor any office in such council” from National Assembly jurisdiction. He said that by that exclusion clearly, it becomes a residual item on which a State Legislature is empowered to legislate. By this, the Benue State Legislature is competent to enact the said Benue State Local Government Electoral Law 2002, and since the jurisdiction conferred on State High Courts by section 272 of the Constitution is subject to other provisions of the same Constitution, the said Electoral Law is not unconstitutional. That the Constitution did not make provisions for the Local Government Election Tribunals therefore, the State must make a provision for it with original jurisdiction to the exclusion of any other Tribunal or Court. Since section 7 of the Constitution creates democratically elected Local Government Council. He also submitted that section 70 of the State Electoral Law 2002 is in line with section 4 paragraphs 11 and 12 of part II of the second schedule to the Constitution and strengthened the validity of enacting the said Electoral Law 2002 which consequently made the said Law to be in line with the 1999 Constitution and is not inconsistent in any way with the Constitution. He said that, the submission of the learned counsel for the appellants, that no state legislation can oust the jurisdiction of the High Court of any State, is superfluous, misconceived and unsustainable, and that all the cases cited by the appellants’ counsel on the issue are clearly not applicable to the matter under consideration and therefore go to no issue. He further contended that even if the trial Judge made an error (which the counsel did not concede) in reference to section 251 of the 1999 Constitution, such an error did not affect the ruling made or occasioned any substantial miscarriage of justice, and in support of this point, he cited the case of Adepeju Odunsi v. Azeez Bamgbala & Ors., (1995) 1 SCNJ 275 at 285; (1995) 1 NWLR (Pt. 374) 641, where Ogwuegbu J.S.C. (as he then was) held as follows:

“It is not every error that will result in the judgment a court below being disturbed. Such an error or slip must strike at the root of the decision appealed against.

The learned counsel asserted that the concept of supremacy of the Constitution is not applicable in this matter. And finally, the learned counsel urged that the appeal be held as without merit and be dismissed with costs.

The learned counsel for appellants in appellants’ reply brief filed, submitted that; even though the election petitions are sui-generis,” it does not take them away from ambit that it is a civil proceeding or civil action in which the existence or extent of a legal right, power, duty, privilege, interest, obligation or claim are in issue. The argument, which says, “because of the “sui generis” nature of election petitions, sections 6(6) and 272(1) of the 1999 Constitution have no application,” the counsel said, 1st – 3rd respondents’ counsel has lost sight of the issue argued in this appeal. He submitted that the issue before the trial court was essentially about the statutory power of the 1st and 2nd respondents to postpone an election that was concluded. That it was not an issue of election petition or its presentation. That the originating summons of the appellants (vides pp. 1 – 3 of the record) was filed to command the 1st and 2nd respondents to perform their statutory duties. (See reliefs (i) – (v) on p. 3 of the record). The provisions of section 272(1) (supra) therefore becomes in this matter applicable notwithstanding the election petitions are “sui generis,” unless of course, the Constitution itself expressly excluded the application of section 272(1) (supra) in respect of local government elections as it did under section 285 of the same Constitution. He urged the court to hold that the trial court has jurisdiction over his suit.

On the 4th – 6th respondents’ contention that, since section 272(1) (supra) is subject to the Constitution, then the Electoral Law 2002 is constitutional and ouster provision in section 70(1) thereof is justified and constitutional, the learned counsel for the appellants replied that they have never argued that the Benue State Legislature has no power to enact the said Electoral Law 2002, rather their contention is and has always been that the State Legislature in the exercise of its power cannot make a law that purports to oust the jurisdiction of State High Court. The learned counsel cited section 4(8) of the 1999 Constitution. That section 272(1) (supra) he said, is only subject to the Constitution, but not to any other law. The learned counsel stated that it is an idle argument to say, “because section 272(1) (supra) is subject to the Constitution, then the State Electoral Law 2002 purporting to oust the jurisdiction of the State High Court is constitutional because it was made by State law making Assembly. It is a fact that any law made by State Assembly is subject not only to the Constitution but to any other Federal law enacted by the National Assembly. (See section 1(1) and (3) of the 1999 Constitution and section 4(5) of same. See also INEC v. Musa (supra). The learned counsel again maintained that the jurisdiction conferred by section 272(1) of the Constitution, to the High Courts cannot be curtailed by the provisions of any statute except the Constitution itself and he cited the case of Akintola v. Oyelade (1993) NWLR (Pt.282) 379; and Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 and Musa v. INEC (supra).

On the issue of supremacy, which the counsel for the 4th – 6th respondents says is inapplicable in this matter, the appellants’ counsel submitted that, the respondents’ counsel, demonstrates clearly a gross misconception of the issue of constitutional jurisprudence raised in this appeal. He stated further that if and when constitutional supremacy is to be waived or is to have no application in Electoral matters as argued by the learned counsel to the 4th – 6th respondents, then we may bid farewell to our much-cherished democratic experiment.

The learned counsel for the appellants submitted that Nigeria operates constitutional democracy and all actions and proceedings in our courts and tribunal must be conducted in accordance with the constitutional provisions. The Nigerian Constitution is supreme law of the land, and all other laws including Act of the National Assembly are subject and subordinate to the 1999 Constitution. What appellants did by approaching the trial court through originating summons had once been done even when there was an express constitutional provision giving exclusive jurisdiction to Election Petition Tribunals to hear and determine electoral matters. The case of PDP v. INEC (1999) 7 SCNJ 297; (1999) 11 NWLR (Pt. 626) 200 and Decree No.3 of 1999 were cited to support this point. The learned counsel for the appellants further argued that for all the respondents to insist, as they did in their two respective briefs, that the complaint of the appellants ought to be presented to an Election Petition Tribunal, is a complete misconception of the contents of an election petition. For an election petition to be competently presented, it must state the holding of the election, the scores of the candidates, the person returned as the winner of the election and the official scores record by the electoral body. See Ojong v. Duke (2003) 14 NWLR (Pt.84) 581 at 611 paras. C – H. That in this case, the 1st – 2nd respondents have refused to make a return or declaration and also refused to publish the result of the said election as required by section 15(3) of the State Electoral Law 2002. It was when the reliefs sought before the trial court in the originating summons were granted, that any one aggrieved with the declaration made can present petition before the Election Petition Tribunal. He urged this court to hold, that the argument of the respondents that election petition tribunal is the appropriate place to present the complaint of the appellants, as being misconceived and misplaced law. Finally, he urged this court to allow the appeal and reject all the arguments of the respondents in their respective briefs of argument.

In this appeal, the common ground between both parties at the trial court is the issue of jurisdiction to entertain the claim as endorsed in the originating summons filed by the appellants. This is because, according to appellants, the provisions of section 272 of the Constitution of Federal Republic of Nigeria 1999, which confers jurisdiction on the High Courts of a State is identical with the provisions of section 70(1) of the Benue State Electoral Law 2002 (as amended) which confers original jurisdiction exclusively to the Election Tribunal to hear and determine election petitions.

In an attempt to answer these, it is desirable to remember that it is well settled principle of law, enunciated in very many decided cases of our apex court, that the word ‘jurisdiction’ means, the authority which a court has to decide matters before it or to take cognizance of matters presented before it for its determination. See Ndaeyo v. Ogunnaya (1977) 1 SC 11.

The limit of this jurisdiction may be circumscribed or restricted by statute.

The question of jurisdiction of a court or tribunal is so fundamental because a decision of the court or tribunal without jurisdiction confers no right. It creates no obligation because it is made without jurisdiction. However, whether the jurisdiction of the court was curtailed or not, the court must in whatever situation it finds itself bear in mind whether it has the competence to exercise its jurisdiction: See Madukolu v. Nkemdilim (1962) All NLR 587; (1962) 2 SCNLR 341.

As we have seen, while the appellants’ counsel contended that it was not right for the trial court to decline its jurisdiction in this case, the respondents’ counsel insisted that the trial court was right.

The submissions of the appellants’ counsel imply that, the jurisdiction of the trial courts, as a court of record, created by the Constitution, comes by virtue of section 272 of the Constitution of Nigeria 1999, while the respondents’ counsel relied on section 70(1)(a-c) of Benue State Electoral Law 2002, which says:

“70(1) There shall be established for the State, one or more Election Tribunals to be known as an Election Tribunal (in this law referred to individually as an Election Tribunal) which shall to the exclusion of any other Tribunal or court have original jurisdiction to hear and determine:

(a) Election petitions as to whether a person has been validly elected as a Chairman or Councilor of a Local Government Council.

(b) Any question as to whether the term of office of any person as Chairman or Councilor of a local government Council has ceased or become vacant.

(c) A question as to whether an election petition is proper or improper before the Tribunal.”

However, on whether the jurisdiction of the court was ousted by virtue of the provisions in a statute, it is necessary to observe that the apex court had in several cases dealing with this question taken the position that the courts are obliged to uphold the ousting of its jurisdiction. See-

(1) Hope Harriman v. Mobolaji Johnson (1970) 2 All NLR 192.

(2) Obada v. Mil. Governor of Kwara State (1990) 6 NWLR (Pt.157) 482; and

(3) Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139.

But, though the courts have in essence upheld the ousted provisions in an Act or Law, it appears from the decided cases that the court have always striven to guard their jurisdictions jealously in the determination of civil rights and obligations of the people of this country. In this con, may I quote the apt and pungent diction of Obaseki, JSC (as he then was) in Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at p. 638, which reads:

“Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary power which coke colourfully spoke of as golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion. More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are wholly independent of the executive…

The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria.”

To be able to properly appreciate the contentions of counsel for the parties, it is I think necessary, to quote the relevant provisions of the 1999 Constitution. Since the appellants’ counsel limited himself to section 272(1), I will reproduce below the two paragraphs:

“272(1)Subject to the provisions of section 251 and other provisions of this Constitution, the High court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

2. The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

Section 6(6)(b) of the Constitution which provides thus:

6(6) The judicial powers vested in accordance with the foregoing provisions of this section

(a)…

(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

When the above provision is read together with section 272 of the same Constitution, it is clear that in respect of a civil dispute each High Court of any State of the Federation has jurisdiction over all matters between persons or between government and authority and over any person in Nigeria as well as over all actions and proceedings related thereto for determination of any question as to the civil rights and obligations of that person.

It may be observed that, subsection (1) of section 272 expresses the scope and content of the jurisdiction vested by the Constitution in the High Courts. Although the powers, granted by the two sections stated above appear to be wide, they are limited in scope and content only on matters, actions and proceedings for the determination of any question in which the existence or extent of a legal right, power, etc., are in issue. It seems to me that upon the construction of subsection (1), of section 272 (supra), it is only when legal right, power, duty etc. of the person who invokes the jurisdiction of the court, are in issue for determination that the jurisdiction of the High Court may be invoked. In other words, a plaintiff who shows that his legal right, power, etc. are being in danger of being violated or adversely affected by the act complained of, will invoke/accorded the jurisdiction of the High Court.

Another important question here is whether or not the subject matter of the appellant’s action in the present case is in any of the matters specified in section 272(1) of the Constitution. In answering this question, I think it is necessary to look at some of the averments in the affidavit evidence in support of the claim of the appellants in the originating summons, to see whether they raise any issue relating to the matters specified in the two sections of the 1999 Constitution. The relevant averments are paragraphs 1 – 4 of the appellants’ claim. They show clearly that the appellants went to the court to challenge decision of the respondents on ground that it was illegal, null, void and of no effect. So, they ask for the construction of the provisions listed in their case.

It is trite that it is the plaintiffs’ writ of summons/originating summons and the averments in the statement of claim/affidavit in support, that determines whether or not a given case comes within the jurisdiction conferred on a court of limited jurisdiction, such as the State High Court. See Adeyemi v. Opeyori (1976) 9 – 10 SC 31 at 49, per Idigbe JSC. As the appellants’ claim in the originating summons and the averments in their joint statement of claim set out therein, show that appellants were not complaining about the conduct of the election or that 2nd and 3rd appellants have been validly elected as Chairman of the local government. Their action was aimed at declaring the postponement of the election (already conducted) in disregard of statutory provision, unlawful and of no effect, and asked the court to order them to do what they ought to do in the circumstance of the case. Their grievances was on what their own counsel regarded as, ‘the unlawful and illegal postponement of the election indefinitely.’ Therefore, the issue in the originating Summons clearly raised the question in respect of the subject matter specified under section 270(1) read together with section 6(6)(b) of the Constitution 1999, i.e. civil dispute and this is my view.

On the contention of the counsel for the respondents, that the trial court’s jurisdiction was ousted by the provisions of section 70 of the Electoral Law 2002 and the trial court was right when it declined jurisdiction. I would like to point out here that where the court would ordinarily abide with an ousted provisions of its jurisdiction, yet it should, before doing so, reserve to itself the right to consider whether the ouster provisions were applicable in the circumstance. This point was settled in the case of F.C.D.A v. Sule (1994) 3 NWLR (Pt.332) 257. In Garba v. Fed. Civil Service Commission & Anor. (1988) 1 NWLR (Pt. 71) 449, the Supreme Court, notwithstanding the ouster provision in the Decree, held that the provisions of the Decree in question thereto, were not applicable in the case of the interdiction of a public officer.

It is manifest from the authorities of decided cases that the principle has crystallized that where a legislation ousts the jurisdiction of the High Court, the court reserves to it the right to examine whether the provisions of the ouster clause apply to the particular case in hand. In the case of A.-G., Federation v. Guardian Newspapers Ltd. (1999) 5 SC (Pt.111) 59; (1999) 9 NWLR (Pt. 618) 187 the question of jurisdiction was raised therein. The trial Judge declined jurisdiction having regard to the ouster clause in the Decree referred thereto. That refusal and other questions were raised on appeal in the Court of Appeal and the Court of Appeal formed the view, that the Federal High Court should not have declined jurisdiction. On appeal to the Supreme Court, Uwaifo, JSC (as he then was) in his judgment referred to the case of A.-G., Federation v. Guardian Newspaper Ltd. (supra) at p. 217 of the report, and endorsed that decision and cited with approval that part of judgment of the court of appeal thus:

“In this case, even if the two instruments (i.e. Decrees No.8 and No. 12 of 1994) are effective as Decrees, the Federal High Court ought not to have declined jurisdiction at the stage it did without further inquiry. Ouster of the jurisdiction of a court does not preclude it from exercising jurisdiction to interpret the ouster clause itself or to determine whether or not the action in question comes within the scope of power of authority conferred by the enabling statute.”

Having regard to the decided cases referred to above, I think it can be said that a court would be obliged to respect and uphold the ouster provisions of a legislation. But the court reserves to it the right to consider whether the ouster clause ought to be obeyed, having regard to other surrounding facts and the law relevant to the provisions ousting its jurisdiction.

In the instant case, the contention of the respondents is that by virtue of section 70(1)(a-c) of the Electoral Law 2002 of Benue State, the trial court’s original jurisdiction has been ousted to entertain the appellants’ action as endorsed in the originating summons having its original jurisdiction been ousted. The question then is whether the trial court should not, having regard to the facts presented to it, consider whether the decision of the 1st respondent complained against was lawful and in accordance with the statute that created the 1st respondent. It seems to me that where as in this case, questions are raised as to whether the decision taken by the respondent (postponing indefinitely the elections already concluded and results released to candidates) was legal and in accordance with the law that set up the 1st respondent, the ouster of jurisdiction of the court should not preclude it from exercising jurisdiction to interpret the ouster clause or to determine whether or not the proceedings in question comes within the scope of power of authority conferred by the enabling statute. The trial court in my view, should not have declined jurisdiction at the stage it did without further inquiry. Declining jurisdiction by the trial court in the circumstance, amounts to merely throwing in the towel for the simple reason that its jurisdiction has been ousted by the provision of a law. It is my view, that any court faced with such a legislation, as in this case, ought to first identify carefully the material facts of the case, and then consider whether, those facts disclosed any features which show, conformity vel-non with all the legislation relevant to the view its jurisdiction. Failure to do so is wrong. I reject therefore, the view held by him that since the jurisdiction of this court appears ousted by the provisions of the Electoral Law 2002, this court has no jurisdiction to interpret the ouster clause itself to determine whether or not what the respondents have done (postponing indefinitely the elections already concluded) is within or outside their powers. This view of his has no basis that I can understand other than the bland say-so of the counsel to the respondents. With respect, I think the learned trial Judge should have looked into the matter more deeply than he did before coming to such conclusion. Such view he held, with due respect, cannot be supported if one carefully appreciates the true import of section 70 (supra).

The 1st – 3rd respondents’ counsel made reference to the “Election Petition”. That reference, in my view, is a futile attempt by him to shoehorn the appellants’ action into section 70 of the Electoral Law (supra) just to give Election Tribunal jurisdiction. The action does not fit in. The appellants’ case, cannot, as far as I can see, come within that ambit of section 70(1)(a-c) (supra).

As to what should go before the Election Tribunal, it is an Election Petition which is a petition or suit that is meant to determine if a person has been validly elected at an election conducted by the commission, or whether the term of a person who had been elected, has ceased or expired (See section 70(1)(a-c) (supra). These are not the issues before the trial court. In my view, any question for adjudication outside the power spelt out by the provisions of section 70(1) of the Electoral Law 2002 must constitutionally go to High Court of a State in exercise of its jurisdiction as provided by section 272 read together with section 6(6)(b) of the 1999 Constitution.

It remains to deal with the issue whether section 70(1)(a-c) of the Benue State Electoral Law 2002 (as amended) is inconsistent with section 270 of the 1999 Constitution. The appellants’ counsel submitted that section 70(1)(a-c) is inconsistent with section 272 of the Constitution 1999, because the provisions purport to oust the jurisdiction of the State High Court conferred by the latter provision. The learned counsel urges us to invalidate the provisions of section 70(1) of the law.

To be inconsistent, the two legislations, that is, the Constitution and that of the law must be mutually repugnant or contradictory of each other so that both cannot stand. The acceptance or establishment of one implies the abrogation or abandonment of the other, see Black’s Law Dictionary, 6th Edition. Where, of course there is obvious inconsistency, the subordinate legislation is void. See section 1(3) of the Constitution. Looking carefully at the provisions of section 70(1)(a-c)(supra), with respect, it seems to me that the intention and overall effect of it is to ouster the original jurisdiction over determination of election petitions arising from the local government elections (italics mine), after the same jurisdiction had been vested in the Election Tribunal. Therefore, I do not understand this to mean that the two provisions are inconsistent with each other. The pith and the substance of section 70(1)(a-c) (supra) in my view is within the express powers of the State Legislature. (See item 11 on the concurrent Legislative List of the 1999 Constitution). Therefore, I share the view of the learned trial Judge, where he said (on page 27 of the record of this appeal) that the provision of section 70(1) of the Electoral Law do not in any way appear to be inconsistent with the provisions of section 272(1) of the 1999 Constitution. I so hold. This question is hereby resolved in favour of the respondents.

Let me hasten to make it clear, that I have not decided that the 1st – 3rd respondents did any acts that were not sanctioned by law. That is not for me to decide, but the appropriate trial court to decide. All I have decided is that, the appellants, by their action, were challenging the 1st- 3rd respondents for, as he puts it, illegally going outside the statutory limits. I am saying that the inquiry for here is, whether the appellants’ action endorsed in the originating summons can be entertained by the High Court of Benue State as being within the jurisdiction. And I so hold.

Finally, since it is my view that the action of the appellants as endorsed in the originating summons is one of the matters specified by section 272 read with section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria, it follows therefore, that the High Court of Benue State has jurisdiction to entertain it. The learned trial Judge was therefore wrong to have declined jurisdiction. I must therefore resolve the issue on jurisdiction in favour of the appellants. This being so, their appeal must succeed. I accordingly allow it. The ruling of Ba’aki J. dated 23/4/2004 in which he declined jurisdiction in the appellants’ action is hereby set aside.

It is my order that the case be remitted to the Chief Judge of Benue State High Court for assignment to a different Judge adjudication. I make no order on costs.

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Other Citations: (2005)LCN/1817(CA)