Dr. Ime Sampson Umanah V Obong (Arc.) Victor Attah & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
This is an appeal against the judgment of the Court of Appeal holden at Abuja wherein the court affirmed the decision of the trial Federal High Court which held that it had no jurisdiction to entertain the plaintiff’s suit and consequently struck it out.
The relevant facts are that the plaintiff and the 1st defendant contested the last general election held in April 2003 into the office of Governor of Akwa Ibom State. At the end of the election the 1st defendant who was sponsored by the 5th defendant was returned by the 4th defendant as the duly elected candidate.
Dissatisfied with the result of the election, the plaintiff filed a petition before the Governorship and Legislative Houses Election Tribunal for Akwa Ibom State. The tribunal consisted of a chairman and four members. Whilst the proceedings were still pending before the tribunal, the plaintiff on 10th July, 2003, petitioned the Chief Justice of Nigeria who is the chairman of the National Judicial Council complaining that the chairman and members of the tribunal had been compromised with large sums of money by the 1st defendant. On 14th July, 2003 the tribunal delivered its judgment in which it dismissed plaintiff’s petition as unmeritorious. The plaintiff timeously appealed to the Court of Appeal. But before doing so he addressed another petition to the Chief Justice of Nigeria on 24th July, 2003 about his earlier petition or complaint. Upon receipt of the plaintiff’s petitions, the National Judicial Council set up an Investigatory Committee to look into the allegations against the Tribunal. Meanwhile, the Court of Appeal which heard the appeal against the judgment of the tribunal, dismissed plaintiff’s appeal on 30th October, 2003. The committee of investigation confirmed the allegations made by the plaintiff against the tribunal and consequently the chairman and members of the tribunal were dismissed from service as reported and published in the Guardian Newspaper of 16th March, 2004.
On 3rd May, 2004, the plaintiff instituted this present suit in the Federal High Court against the defendants claiming thus:-
“(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because some of the Tribunal members have been found to have taken bribe.
(b) An account by the 1st defendant of the emoluments and all perquisites received by the 1st defendant as the Executive Governor of Akwa Ibom State since he was sworn in May 2003 and a refund of same to the Akwa Ibom State Government treasury.
(c) Perpetual injunction restraining the 1st defendant from exercising any authority or carrying on as the Executive Governor of Akwa Ibom State of Nigeria.”
On 5th May, 2004, the plaintiff filed an application for a constitutional reference of two questions to the Court of Appeal. On being served with the processes the 1st defendant filed a notice of preliminary objection pursuant to sections 246, 285 and 308 of the 1999 Constitution praying that the plaintiff’s suit be dismissed or struck out on the ground inter alia that the court has no jurisdiction to entertain same or grant any relief against or touching upon or relating to the 1st defendant. The preliminary objection was taken first. After hearing the arguments of counsel on both sides, the learned trial Judge came to the conclusion that he had no jurisdiction to entertain the suit and consequently struck it out.
Being dissatisfied with the ruling of the learned trial Judge, the plaintiff appealed to the Court of Appeal holden at Abuja. In the Court of Appeal the plaintiff submitted two issues for determination.
The issues read as follows:-
“1. Whether the Federal High Court has jurisdiction to nullify the judgment of an election petition tribunal (and the appellate judgment of the Court of Appeal affirming it) on the ground of fraud arising from the fact that the tribunal chairman and members were found to have received bribe from one of the parties in favour of whom the judgment was ultimately given.
- Whether section 308 of the 1999 Constitution is a bar to the second relief contained on the appellant’s statement of claim which is consequential to the principal relief seeking to nullify the judgment of the election petition tribunal on the ground that the said judgment which confirmed the return of the 1st respondent as Governor of Akwa Ibom State was tainted with fraud in that the tribunal members were found to have received bribe from the 1st respondent.”
In the lead judgment of the Court of Appeal delivered by Muhammad, J.C.A., he said on page 373 of the record thus:- “The 5th respondent did not file any brief of argument against appellants issue No.1, 1st respondent and 2-4th respondents issues are on jurisdiction of the lower court on the suit filed before it. I shall consider this issue first.”
The lead judgment then proceeded straight to consider the submissions of counsel on the issue of jurisdiction. After a thorough review of the submissions, it came to the conclusion that the trial court was right to have declined jurisdiction in the suit. The court felt that there was no need for it to consider any other issue since the fundamental issue of jurisdiction has failed. I think the decision was right and proper. The plaintiff’s appeal was accordingly dismissed. The lead judgment on pages 376 and 377 of the record concluded thus:- “The subject matter before the trial court (which incidentally) was an election petition challenging the declaration of the 1st respondent by the 4th respondent as the elected candidate for the Governorship of Akwa Ibom State. An appeal against the declaration at the Court of Appeal was also unsuccessful. Thus, the subject matter before the Governorship and Legislative Houses Election Tribunal of Akwa Ibom State and the Court of Appeal, Calabar Division, was election petition and appeal lodged against it. In his considered ruling, the learned trial Judge declined jurisdiction. Now, having carefully considered the submissions of learned counsel for the respective parties in contrast with the ratio decidendi of the learned trial Judge, I cannot but agree with the learned trial Judge, that he lacked jurisdiction and same cannot be conferred on it by any guise even if with the consent of the parties. There are no two ways to it. There is no need for me to belabour the issues raised by the parties in this appeal any longer, as doing so will not change the position of the law on issue of jurisdiction adumbrated above. Accordingly, I find no merit in this appeal and I hereby dismiss it. I affirm the decision of the lower court.”
Aggrieved by the decision of the Court of Appeal, the plaintiff has now further appealed to this court. The parties, with the exception of the 5th defendant, filed and exchanged briefs of argument. These were adopted at the hearing. Plaintiff’s learned counsel, Mr. Tayo Oyetibo, SAN, has in his brief submitted three (3) issues for resolution in the appeal as follows:-
“1. Whether the Court of Appeal did not breach the appellant’s fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal.
- Whether the Court of Appeal was right in affirming the decision of Adah, J. of the Federal High Court that he lacked jurisdiction to entertain the appellant’s action.
- Whether the Court of Appeal was right when it held per Rhodes-Vivour, J.C.A. that the first relief claimed by the appellant could only be heard by the election petition tribunal in Akwa Ibom State or the tribunal having jurisdiction over Akwa Ibom State or by a High Court Judge sitting in Akwa Ibom State.”
It has been demonstrated above and clearly supported by the record of proceedings of both trial Federal High Court and the Court of Appeal, that the only and single issue or ground on which the trial court struck out the suit is entirely for want of jurisdiction. The trial court and the Court of Appeal did not strike out the case on any other ground or point of law. The parties are therefore obliged to keep their objections, complaints and submissions within the narrow issue of jurisdiction only. They will not be permitted to venture outside it.
The record shows on pages 373 and 374 the submissions of Mr. Oyetibo, plaintiff’s counsel, in the Court of Appeal. And his submissions were considered along with the submissions of counsel for the other parties. It is therefore not correct for Mr. Oyetibo to have alleged as he has done in issue (1) above, that the Court of Appeal breached the plaintiff’s fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the plaintiff in the appeal. Plaintiff’s issue (1) before the Court of Appeal which was on jurisdiction was amply considered and dismissed. The other issue (2) was not considered by the Court of Appeal at all as there was clearly no need for it, because there was no longer the jurisdiction for doing so. It must also be stated that apart from the two issues set out above, I cannot find anywhere in the record where Mr. Oyetibo set out points of law for determination by the Court of Appeal. Probably he was referring to issue (2) above. In my view a court of law is not bound to answer any question of law or otherwise raised by a litigant or counsel unless the point or points so raised are necessary and material for the resolution of the case before it. This court has held times without number that it will not engage or indulge in academic exercise (see for example Oyeneye v. Odugbesan (1972) 4 SC. 244; Bakare v. A.C.B. (1986) 3 NWLR (Pt.26) 47. Also the court does not issue opinions about potential cases. Issue (1) therefore fails.
Issue (2) is without any hesitation answered in the affirmative for the reasons ably set out in the judgment of the Court of Appeal as well as that of the trial court. The subject matter of the suit is undoubtedly an election petition matter which had since been concluded in the Court of Appeal which is the final court in the matter. The reliefs claimed by the plaintiff are clear and support that view. The election petition cannot be resurrected in any manner or form in the Federal High Court, which had rightly declined jurisdiction and confirmed by the Court of Appeal. The lower courts are in my view right in their stand. This issue also fails.
Issue (3) is about the obiter dictum of Rhodes-Vivour, J.C.A. who participated in the appeal at the Court of Appeal. The statement in my view is a mere obiter dictum in a concurring judgment. It is not the ratio decidendi and cannot therefore form the basis or reason to set aside the judgment of the Court of Appeal. That was not the reason for dismissing the appeal. And as I said above the court does not issue opinions about potential cases. The issue is therefore in my view incompetent coming as an obiter in a concurring judgment only. It is hereby struck out.
All the three (3) issues are therefore resolved against the plaintiff/appellant.
The appeal completely fails. It is dismissed with N10,000.00 costs in favour of each set of defendants/respondents (except the 5th defendant/respondent) against the plaintiff/appellant.
SC.255/2005
