Chief (Mrs) Olufunke Victoria Ehuwa V. Ondo State Independent Electoral Commission & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Benin Division (hereinafter called (“the court below”) delivered on 8th July, 2005 declining jurisdiction to entertain the appeal filed by the appellant against the judgment of the High Court of Ondo State on the ground that, that court was the final court.

The facts of the case briefly stated, are, that the appellant was the petitioner at the Local Government Election Petition Tribunal, Ondo State where she challenged the nomination, sponsorship and eventual election of the 2nd respondent as the Chairman of the Ilaje Local Government of Ondo State. After the trial, the Tribunal declined to determine the petition on the merits on the ground that it was/is an internal affair of the party and therefore, dismissed the petition. The appellant appealed to the High Court of Ondo State, which court, after hearing the appeal, dismissed the appeal and upheld/affirmed the decision of the Tribunal.

Dissatisfied with the said decision, the appellant appealed to the court below. In that court, the 2nd respondent, raised a preliminary objection and urged the court to strike out the appeal in limine for being incompetent. He relied on section 94(2)(1) of the Local Government Administration, Conduct of Local Government Election and Allied Matters Law, 2003 of Ondo State (hereinafter called “the Law”) which makes the said High Court, the final court for Local Government Election petitions. On 8th July, 2005, the court in a considered ruling, upheld the preliminary objection. It also declined jurisdiction. It is against the ruling, that the appellant has appealed to this court on one ground of appeal. The appellant has formulated one issue for determination that reads as follows:

“Whether having regard to the combined effect of sections 240 and 241(1)(a)(b) and f(v) of the Constitution of the Federal Republic of Nigeria, 1999 and the peculiar provisions of section 94(2)(1) of the Local Government Administration Conduct of Local Government Election and Allied Matters Law, 2003 of Ondo State (hereinafter called Ondo State Electoral Law 2003) appeal cannot lie as of right (in appropriate case as the instant case) from a decision of the High Court of Ondo State to the Court of Appeal merely because it was an appeal emanating from an election petition”.

The respective lone issue formulated by the 1st, 3rd and 4th respondents and the 2nd respondent in their respective brief, is in substance, similar to that of the appellant although differently worded/couched. It is my humble but respectful view and as rightly submitted by the learned counsel for the appellant in paragraph 4.01 of their brief, that:

“The tiny but all important issue to be determined in this appeal is whether, the Court of Appeal lacks jurisdiction to determine this appeal in view of the fact that the appeal relates to Local Government election.”

I need to emphasize that through out the brief of the appellant, it is stated and indeed conceded that this instant appeal, relates to the said Local Government election. In paragraph 3.01 of the Statement of facts, the following appear, inter alia:

“The facts relevant to this appeal is that the plaintiff filed an election petition at the Local Government Election Petition Tribunal of Ondo State over the undue return for the office of Chairman of Ilaje Local Government by the Ondo State Electoral Commission. The Election Tribunal declined jurisdiction to determine the petition.”

At the hearing of this appeal on 19th September, 2006, the learned counsel for the appellant – Nwafor-Orizu, Esq., submitted inter alia, thus:

“This is not an Election Petition appeal, but for interpretation.”

Wonders, it is said, can never end:

Just as in No.4 of their Argument, he referred to and relied on section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, and submitted that an Election Petition, according to him, does not have a specific law. He referred to section 240 of the said Constitution and submitted that section 240(b) thereof, is clear. He then referred to their ALTERNATIVE submission at page 8, paragraph 4.14 of their brief and cited and relied on the case of FRN (Federal Republic of Nigeria) v. Lord Chief Ifegwu (2003) 15 NWLR (Pt.842) 113 at 149,205-207 (it is also reported in (2003) 5 SCNJ 217). In his reply on points of law, apart from submitting that the two cases of Sorunke v. Odebunmi (1960) SCNLR 414; and Obih v. Mbakwe (1984) Vol. 1 SCNLR 192 (it is also reported in (1984) NSCC Vol. 15, p. 127) cited and relied on by the learned counsel for the 2nd respondent Olatubora, Esqr, in his oral submission, about election matters not being simple civil cases and that they are different and distinguishable from ordinary civil proceedings and therefore, do not have the incidence of ordinary civil maters and thus cannot come on appeal by virtue of sections 240 and 241 of the 1999 Constitution, Nwafor Orizu, Esq, submitted that the State High Court Laws for which according to him, one comes to this court, are sometimes Bye Laws, etc. That reliance on section 7 of the 1999 Constitution, is ridiculous.

I will pause here to observe that Mr. Olatubora in paragraph 4.02 of their brief in support of his submission that proceedings in election petitions, are regarded as sui generis cited and relied on the case of Orubu v. NEC which he stated that it is reported in (1988) 3 NSCC 333 and in his List of Authorities No.3 as in (1998) 3 NSCC 33, with respect, there is no such case either at p.33 or 333 or any other page in Part 3 of the NSCC Report. The case is reported in (1988) 5 NWLR (pt.94) 323 and (1989) 12 SCNJ 254. Learned Counsel appearing in this court, are please advised to ensure that they refer to the correct citations/references in their briefs or oral addresses.

With respect, the forceful but tenuous argument or contention of the learned counsel for the appellant for which a full court has been empanelled, is that the law enacts that appeals from the Local Government Election Petition Tribunal (hereinafter called “the Tribunal” lie to the High Court of Ondo State. That the law did not state that the Ondo State High Court, is to sit as an Appeal Tribunal simpliciter. That the High Court was therefore to sit as a High Court with one Judge having powers of the High Court. That unlike some States Electoral Laws or the Constitution of the Federal Republic 1999, the Ondo State Law, did not state that the High Court decision of Ondo State shall be final. That the Constitution by section 240, allows appeals from the High Court to lie to the Court of Appeal. That that “was the reason for this appeal which erroneously decline jurisdiction” (sic). That any other consideration by the court is not relevant to the preliminary objection and will not be part of this appeal as, according to him, the court must first of all, have jurisdiction before making pronouncements on merits.

The question that I or one may at once ask is, having regard to the clear and unambiguous provision of section 94(2) of the law, which states:

“An appeal arising in respect of an election petition under this Law shall lie to the High Court of the State.”

can it be honestly and seriously contended or submitted as has been done in the appellant’s brief, that because the Law did not expressly state/provide that the decision of the High Court shall be final, the Ondo State High Court is not the final Court for the determination of Local Government Election appeals I think not.

The next question is, did the law provide that an appeal from the Local Government Election petition, shall lie to the Court of Appeal Of course not. Commonsensically, could the Ondo State Legislature have made such a provision And if it made it, can it ever be valid The answers are NEVER – not at all of course, and understandably, there is no provision in the law that an appeal shall lie to the Court of Appeal from the High Court of Ondo State sitting as an appellate court on the decision of an Election Petition Tribunal. Surely and certainly, and this is settled, an appellate jurisdiction, is obviously and clearly created by statute. Therefore, or thus, no court, has the jurisdiction to confer jurisdiction on itself unless it is derived from statutory provision.

It is well established that the right to appeal does not exist for any person unless it is created by statute or the Constitution. It does not derive from any other source – neither inherent jurisdiction nor common law. No court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision. So said Uwaifo, JCA, (as he then was) in the case of Chief Esuku & Anor. v. Leko & 3 Ors. (1994) 4 NWLR (Pt.340) 625 at 632 C.A also cited and relied on in the brief of the 1st, 3rd and 4th respondents and also referred to at page 324 of the records by the court below.

In the case of Ugwuh v. Attorney-General East Central State (1975) 6 SC 13 at 16, it is stated inter alia, as follows:

“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective appellant that such a right has been or is conferred on him by some statutes… ” (the Italics mine)

See also the case of Prince Adigun & 2 Ors. v. The Attorney-General of Oyo State & 18 Ors. (1987) 2 NWLR (Pt.56) 197; (1987) 3 SCNJ 118.

In the case of Ajomale v. Yaduat & Anor. (No.1) (1991) 5 NWLR (Pt.191) 257 at 263; (1991) 5 SCNJ 172 at 175 It was held that in this country, the exercise of all original appellate jurisdiction is derived either from the 1979 Constitution or from a particular statute. That these are the only sources from which jurisdiction is derived. It referred to the case of Adili v. The State (1989) 2 NWLR (Pt.103) 305.

In the case of Odofin & Anor. v. Chief Agu & Anor. (1992) 3 NWLR (Pt.229) 350 at 369; (1992) 3 SCNJ 161 which dealt with the basis of the inherent jurisdiction of an appellate court, it was held that the exercise of appellate jurisdiction is entirely statutory. That there can therefore, not be an inherent jurisdiction outside the statute.

All these pronouncements have been made by this court and put the issue of jurisdiction of an appellate court, beyond any controversy or doubt. In other words, since the right of appeal is created by the Constitution or Statute, no court has the right to hear an appeal unless the jurisdiction is derived from the Constitution or Statute. See also the cases of Chief Denis Osadebay v. Attorney-General of Bendel State (1991) 1NWLR (Pt.169) 525 at 571-572; (1991) 1 SCNJ 162; National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & 3 Ors. (1996) 8 NWLR (Pt.465) 150 at 165; (1996) 9- 10 SCNJ 147; Enugwu v. Okefi 3 Ors. (2000) 3 NWLR (Pt.650) 620 at 643; and Captain Akande v. Nigerian Army (2001) 8 NWLR (Pt.714) 1 at 19 C.A. just to mention but a few. This is why it is settled law that an appellate court cannot exercise jurisdiction in a matter once the lower court or the court below is without jurisdiction. An appellate court can only exercise its appellate jurisdiction to correct the errors of the lower court or the court below. Thus or consequently, once an appellate court has decided that the lower court or the court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. See perhaps Akinbobola v. Plisson Fisko Nig. Ltd. & 2 Ors. (1991) 1 NWLR (Pt.167) 270 at 285; (1991) 1 SCNJ 129.On this ground alone, this appeal fails. This is because since the court below held that the High Court had no jurisdiction to determine the appeal, it could not have on appeal, given any judgment deciding the merits of the appeal as would have been done by the High Court.

For purposes of emphasis, the Ondo State Law is a statute which has not created any appellate jurisdiction for the Court of Appeal in respect of Local Government elections. This is why I have stated that the law, did not specifically mention that the Ondo State High Court sitting in its appellate jurisdiction, as a final court, did not mean, and does not mean, that the appellant has a right of appeal to the court below. In other words, since the law specifically mentioned that an appeal shall lie to the State High Court, I agree with the submission in the brief of the 1st, 3rd and 4th respondents in the oral submission of their counsel at the hearing of this appeal that it therefore excludes any other appellate court including the Court of Appeal.

It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The latin maxim is “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. It is also termed ‘inclusion unius est exclusio alterius” or “enumeratio unius exclusion alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbuanyinya & 5 Ors. v. Okudo & 2 Ors. (1979) 6-9 SC. 32; (1979) ANLR 105; (1979) 6-9 SC. 24 at 35 (Reprint); Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280; The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646; (1989) 9 SCNJ 80; Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor. (1993) 7 SCNJ (Pt.11) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. The court below – per Augie, JCA, stated at page 323 records inter alia, as follows:

“This application raises an interesting albeit knotty angle to the issue of whether this Court has jurisdiction to hear appeals emanating from Local Government Election Petitions or not. I have considered the arguments of counsel and critically examined the state of law on appellate jurisdiction and I am of the firm view that this court has no jurisdiction and cannot by any interpretation of the existing law hear such appeals. I say without equivocation that the decision of the High Court of the State sitting as an Appellate Court in respect of Local Government Election Petition is final, and this court has no jurisdiction to entertain any further appeal from the said court.”

I cannot fault the above pronouncements. Even if it means repeating myself, this Court – per Bello, JSC, (as he then was) in the case of Adeyemi (Alafin of Oyo) v. Attorney General of Oyo State (1984) NSCC 397 at 419-420; (1984) 1 SCNLR 525 also referred to by the court below, had this to say, inter alia:

“It must be appreciated that the jurisdiction of appellant courts in our judicial system is either constitutional or statutory. The appellate powers are conferred upon the courts by the Constitution and the Federal and States Legislations: No court has any inherent appellate jurisdiction. It follows therefore that unless jurisdiction is specifically conferred by the Constitution or legislation, an appeal court will not entertain a particular appeal.” (the italics mine)

In spite of this pronouncement and the other decided decisions by this court already referred to above by me. Mr. Nwafor Orizu, insists, albeit most erroneously, that even though the Ondo State Law did not specifically say that an appeal in an Election petition lies from the High Court to the Court of Appeal, the court below has jurisdiction or perhaps, “inherent jurisdiction”, to entertain all appeals from the High Court. Significantly, the learned counsel has not asked us to review the said (decision in Adeyemi’s case or in that of Odofin & Anor. v. Chief Agu & Anor. (supra). Rather, and most ridiculously, with respect, he is asking the court to do an “interpretation” of what neither the 1999 Constitution nor the Ondo State legislation did not either contemplate or specifically provide. Of course, this court will not oblige him. Such an indulgence in my respectful view, will not only be extremely absurd, but will amount to an academic exercise in relation to a hypothetical issue!

It is important and in fact pertinent to stress that there is no Act of the National Assembly which confers jurisdiction on the Court of Appeal to sit as an appellate court in respect of decisions of the High Court sitting as an Appeal Court in respect of Local Government Election petition matters. I say so because, section 240 of the 1999 Constitution which provides for the appellate jurisdiction of the Court of Appeal, provides as follows:

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly”.

Also, section 246(1) of the 1999 Constitution, deals with appeals to the Court of Appeal as of right from

“(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution.

(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether-”

As rightly stated by the court below, this sub-section(1), did not confer jurisdiction on the Court of Appeal to hear appeals in respect of decisions of the High Court sitting as Election Appeal Court under the Local Government Law. It stated further at page 326 of the records, inter alia, as follows:

“An election petition is not the same as ordinary civil proceedings – see Orubu v. NEC (1988) 12 SCNJ 254; (1988) 5 NWLR (Pt. 94) 323; Awuse v. Odili (supra), besides, the Ondo State Law is a State Law, which cannot validly confer jurisdiction on this court to entertain such appeals. This is in accord with Section 246(2) of the 1999 Constitution, which provides as follows –

“The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.”

I or one may ask, has the National Assembly or the Ondo State Assembly, made any law or provision conferring appellate jurisdiction on the Court of Appeal in respect of Local Government Election Petitions or appeals Of course, the answer is in the negative and Nwafor Orizu, Esqr., knows this as a fact. The right of appeal, I repeat, is a Constitutional or Legislative matter. If it is not conferred, then it is not there. The court below, in its conclusion, stated rightly in my humble but respectful view as follows:

“There is no Act of the National Assembly in existence extending the appellate jurisdiction of this court to cover appeals in respect of Local Government Election matters. It is only appeals in respect of the decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals that lies to this Court. What this means is that unless and until an Act of the National Assembly says otherwise, the decision of the Ondo State High Court sitting as all appellate court in respect of Local Government Election Petitions is final; no appeal lies therefrom to this Court and I so hold.” (the Italics mine)

Finally, there is the concurrent findings of fact by two lower courts and on the decided authorities, this court will not interfere. The result or what the instant appeal boils down to, is that this appeal and as also held by the court below, is grossly incompetent. It fails with ignominy and it is accordingly, dismissed.

Let me say a few words on the alternative argument/submission in paragraph 4.14 of the appellant’s brief. The appellant states that if this court holds that the court below was right in holding that it lacked jurisdiction and that the High Court Ondo was the final court, that the argument is that,

“Whether the statutes or implication or interpretation of the statutes is that the decision of the Ondo High Court is final, it does not foreclose jurisdictional issue. This is more so as the appeal from the High Court Ondo State to the Court of Appeal is a jurisdictional issue. The Ondo High Court declined jurisdiction when it had jurisdiction. This appeal from the Court of Appeal to this Honourable is a jurisdictional issue as the court also declined jurisdiction both on different grounds.” (the italics mine)

The cases of FRN (Federal Republic of Nigeria) v. Lord Chief Ifegwu (supra); NEC v. Nzeribe (1991) 5 NWLR (Pt.192) 458 C.A. and Udosen v. NECON (1997) 5 NWLR (pt.506) 570 C.A. are cited and relied upon and the court is urged that on the basis of the decisions in the above three (3) cases, to hold that it has jurisdiction to determine this appeal and that the Court of Appeal has jurisdiction to determine the appeal before it – all being jurisdictional issues.

Apart from this argument and submission being with respect, otiose, it is noted by me that it was not raised either in the alternative or otherwise in the ground of appeal of the appellant or in any issue formulated in the brief for determination. This perhaps, is why, none of the two (2) sets of respondents, responded or replied to it.

It is now firmly established that every issue for determination (even if it is in the alternative), must be formulated from, based upon and related to or distilled from a competent ground of appeal. In other words, for an issue for determination to be competent, it must be based on a ground of appeal. See Captain Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76; (2000) 6 SCNJ 1; (2000) 6 SC. (Pt.1) 66 (2000) FWLR (Pt.9) 1527; (2000) WLR 47; Alhaji Arowolo v. Akapo & 2 Ors. (2003) 8 NWLR (Pt.823) 451 at 508-551 C.A; Archbishop Jatau v. Alhaji Ahmed & 4 Ors. (2003) 1 SCNJ 382 at 388; (2003) 4 NWLR (Pt.811) 498; and recently, Falola v. Union Bank of Nigeria Plc (2005) 2 SCNJ 209 at 221; (2005) 2 Sc. (Pt.11) 62; (2005) 7 NWLR (Pt. 924) 405 – per Edozie, JSC, just to mention but a few.

Therefore, since the said issue was not formulated by the appellant in the brief for determination and it was not raised or distilled from any ground of appeal, I hereby discountenance it as it is with respect, hopelessly incompetent.

In any case, a decision is said to be either final or interlocutory. The learned counsel for the appellant from his said argument or submission says that the decision of the Ondo State High Court is not final and cannot be final in that according to him, it does not foreclose jurisdictional issue. So also is the decision of the court below. He has however not said that the decisions are interlocutory.

As noted in this judgment, the Tribunal dismissed the Petition. The High Court of Ondo State also dismissed the appeal. In other words, the petition and the appeal became “dead” so to say and for all purposes. The court below, struck out the appeal for incompetence. This is because where a court holds that it has no jurisdiction to entertain and determine a matter, it strikes out the matter. The striking out of the matter finally disposed or disposes of the matter or appeal as the case may be.

In the final analysis or result, the said alternative argument/submission is hereby and accordingly struck out as being of no moment or consequence same being incompetent and completely with respect, grossly misconceived in the extreme.

Costs follow events. Costs of N10,000.00 (Ten Thousand Naira), are awarded in favour of each of the two (2) sets of respondents.

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SC.165/2005