Dr. Olusegun Agagu V. Mr.akin Esanmore & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
By an Originating Summons filed at the Federal High Court on March, 23rd 2007, the 1st – 4th Respondents challenged the eligibility of the Appellant to contest the April 14, 2007 gubernatorial election in Ondo State on the ground that he was disqualified by a Judicial Commission of Enquiry. Upon service of the originating processes on the Appellant and the 5th Respondent by the Bailiff of the lower court a notice of Preliminary Objection was filed by the Appellant challenging the jurisdiction of the lower court to entertain the matter on four grounds.
Parties were directed to file and exchange written briefs. The Appellant and the 1st – 4th Respondents filed and adopted their written submissions. In its considered ruling the lower court Coram: Abimbola Ogie J. dismissed the preliminary objection in its entirety. Dissatisfied, the Appellant filed a Notice of Appeal against the decision.
During the pendency of the suit the April 14, 2007 governorship election was conducted by the 5th Respondent. The Appellant was declared the winner of the election. Once again the jurisdiction of lower court to continue to entertain the matter was questioned on the ground that the Respondents ought to file a petition before the Governorship Election Petition Tribunal. The objection was argued. The lower court dismissed the objection as lacking in merit. Dissatisfied with the decision the Appellant filed another appeal.
ISSUES FOR DETERMINATION
The Appellant on the 26/6/07 filed a Brief of argument in which he framed five issues for determination which are:-
- Was there service or proper service of the originating processes on the Appellants?
- Was the action not statute barred for non compliance with section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 and section 34 (3) of the Electoral Act, 2006
- Can this action be maintained against the Appellant in view of Section 308 of the 1999 Constitution?
- Does the action qualify as a post election matter and does the lower court consequently not lack jurisdiction.
- Whether the action ought not to have been referred to the Election Tribunal for determination.
The Appellant had married the issues in the first with that for the second appeal even though there was no consolidation.
The 1st – 4th Respondents filed their Brief of Argument on 2/7/07, and formulated 4 issues for determination as follows:-
i. Whether the service of the originating process on the Appellant was proper having regard to the facts and circumstances of this case.
ii. Whether the action was statute barred pursuant to the Public Officer Protection Act (Cap 379) Laws of the Federation of Nigeria, 1990 and Section 34 (3) of the Electoral Act 2006
iii. Whether as governorship candidate the Appellant was entitled to enjoy immunity under Section 308 of the Constitution.
iv. Whether the conduct of the April 14, 2007 governorship election had divested the lower court of the jurisdiction to entertain the case.
The 5th Respondent filed their Brief of Argument on 26/11/07 and adopted the 1 – 3 issues formulated by the appellant and in place of issues 4 and 5, the 5th Respondent formulated a single issue as Issue 4 which is:-
Whether the conduct and conclusion of the Governorship Election has not rendered this suit merely academic and ousted the jurisdiction of the trial court to entertain the same.
It is clear that whether or not the two appeals are consolidated has no material effect since an answer to issue NO.4 of the Appellant in the first Appeal will answer issue No.5 which is aimed as the second appeal and so those two issues will be taken together as I utilise questions as raised by the Appellants the 5th Respondent having adopted Appellant’s 1 – 3 issues. It is because it will therefore be neater to use the issues as couched by the Appellant.
ISSUE ONE
Learned counsel for the Appellant, Mrs. Adesina stated that paragraph 3(a) (i) & (ii) of the Affidavit in support of the preliminary objection, the Appellant deposed:
(a) The 1st Defendant has instructed our law firm in our chambers at 2nd floor Great Nigeria Insurance Building, Alagbaka, Akure on 30th March 2007 at about 4.00pm to enter an appearance under protest for the following reasons:
(i) The originating summons filed in this suit was never personally served on the 1st Defendant.
(ii) The Originating Summons issued against the 1st Defendant was left at the office of the Attorney-General of Ondo State in Akure.
(b) The 1st Defendant in this suit is sued in his personal capacity.
Learned counsel contended that in view of the above the Appellant who was sued in his personal capacity and in an originating summons should be served personally and not through a party who was a stranger to the action. That service in an originating process is fundamental to the adjudication of a matter and so where there is no service or proper service of originating summons, the court lacks jurisdiction to entertain the suit. She cited F.C.M.B. v. Abiola & Sons Ltd. (1991) 1 NWLR (pt. 165) 14 at 28 – 29 F-; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC6. That this failure to effect service is fatal to the proceeding.
In response learned counsel for the 1st – 4th Respondents, Mr. Falana said that in the counter affidavit of the 1st – 4th Respondents it was therein stated that it was the Appellant who directed the Bailiff to effect the service of the originating summons on the office of the Attorney-General and so he cannot complain that there was a lack of personal service. That it is trite law that he who does an act through another is deemed to do it himself. He cited Nwosu C. Imo State Environmental Sanitation Authority (2004) WRN 74; Osisanya v. Odugbesi (2004) 38 WRN 1 13.
Learned counsel for the 1st – 4th Respondents urged this court to reject the inadmissible evidence of Mr. Godfrey Omoha, a Litigation Assistance in the Law office of Kayode & Co. his information being derived from Tunji Salawu Esq. who in turn derived his own information from the Appellant’s instruction. He referred to Chrisdom v. A.I.B. Ltd. (2002) 36 WRN 52 at 83.
Mr. Falana further contended that the Appellant is the current Governor of Ondo State and to that extent he is in the service of Ondo State Government and so the Bailiff of court can effect proper service of the Originating Summons on him through the office of the Attorney-General of Ondo State pursuant to order 13 rule 6 of the Federal High Court (Civil Procedure) Rules 2000. That case of Marke v. Eke (supra) and Madukolu v. Nkemdilim (supra) cited by the Appellant do not apply.
The 5th Respondent adopted the arguments of Appellant in issues 1 – 3 and also urged that the appeal be allowed.
This Issue 1 being an issue that goes to the matter of whether or not service was made or that it was made but improperly so. The Appellant who had raised a preliminary objection in the court below based on a failure by the plaintiffs/1 – 4 Respondents in serving the Appellant, Dr. Agagu personally. That the service of Dr. Agagu who also is the Governor of Ondo State through his Attorney-General must be regarded as non service and so vitiating not only the process but also rendering null and void the trial and judgment emanating from that process.
For emphasis any defect in the competence of a court renders the proceedings before it a nullity, a defect of competence being extrinc to the adjudication.
A court is competent when:-
(1) It is properly constituted with respect to the number and qualification of its member;
(2) The subject matter of the action is within its jurisdiction;
(3) The action is initiated by due process of law, and
(4) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See Madukolu v. Nkemdilim (1962) All NLH 581.
When an aggrieved party complains of non-service of process as the Appellant had done in this instance he is raising a fundamental issue which goes to the jurisdiction of the court to enter any judgment. I rely on Marke v. Eke (2004) 5 NWLR (pt. 865) 54; Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 5
It is true that a defect in procedure is not always fatal. However if a rule prescribes personal service of process, the document to be served must be delivered to the person to be served and if not so served or substituted service is obtained from the court, any judgment or order made on such a defendant is a nullity. See F.C.M.B. v. Abiola & Sons Ltd. (1991) 1 NWLR (pt. 165) 14 at 28 – 29; Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC6.
Having stated the principles applicable above it is not disputed that the Appellant Dr. Agagu is currently the Governor of Ondo State and that being the case, service where it is provided to be personal on him if made on the Attorney-General of Ondo State as has taken place here is good service. This is so because it is near impossible for any party or bailiff to have that direct access to a Governor of any State as to meet the strict requirement of personal service. To insist on that direct person to person service between bailiff and a Governor would in effect mean that whenever a Governor is sued such a process can be taken as dead in the light of the impossibility of personal service. That certainly cannot be the intendment of the framers of our Law nor can the process of justice delivery is carried out as provided by our Constitution or our practice of the rule of law. I would want to anchor on the case of:
Chrisdom Ind. Co. Ltd. v. A.I.B. Ltd. (2002) 8 NWLR (pt. 768) 152 at 178 per Ubaezonu JCA.
”Justice cannot be sacrificed on the altar of form. The era of extreme technicality in our courts at the expense of justice is gone. This, although the rule of court stands as a guide to the court in conducting court business, the court must not hold in as a ”mistress” but as a “handmaid”.
From all that I have said I am satisfied that I can safely go along the views of the 1st- 4th Respondent’s counsel that proper service was made when the service of the process in this instance the Originating Summons was effected on the Attorney-General of Ondo State and for this purpose the alter ego of Dr. Agagu, the Governor. Therefore I answer this Issue in favour of the 1st- 4th Respondents and in the affirmative.
ISSUE TWO
Mrs. Adesina for the Appellant referred to pages 20 to 25 of the Record of Appeal where Appellant deposed an affidavit in support of personal particulars of persons seeking election to the office/membership of Governor (PDP) Ondo State which is exhibited as Exhibit C to the Originating Summons and this affidavit was sworn to on 14th December 2006 and the 1st to 4th Respondents took out the Originating Summons on the 23rd of March 2007, a period of more than 3 months of the commencement of the cause of action which arose from 14th December, 2006 and so that action was rendered incompetent. He cited Ibrahim v. J.S.C. (1998) 14 NWLR (pt. 584) 1; Section 2(a) of the Public Officers Protection Act.
That the Supreme Court had defined a person to include “a natural person” and “an artificial person” such as a corporate sole or public bodies corporate or incorporate. That a body like INEC being a Public Officer against whom an action cannot lie except it was commenced within three months from the date the cause of action arose from 14th December, 2006. That this case was filed on 23rd march, 2007 which was well over three months. That it is not in dispute that Dr. Agagu is the incumbent Governor of Ondo State and so by virtue of Section 308 of the Constitution he is immune or protected from any civil or criminal proceedings.
Mr. Falana for the 1st – 4th Respondents countered that the statute of limitation is not applicable to this case and that even if it was it was never raised or specifically pleaded by the Appellant in their defence as required by the rules of pleadings. Therefore that the Appellant cannot be heard to rely on the Public Officers Protection Act Cap 372 Laws of the Federation of Nigeria 1990. He cited Lawal v. Oloruntoba (2004) 48 WRN 88 at 106.
Mr. Falana stated in the alternative that the action of the 1st – 4th Respondents cannot be said to be statute barred having regard to the facts and circumstances of this case. That it is not in dispute that the Appellant submitted his nomination form in December 2006. That the 1st – 4th Respondents sent a petition (Exhibit B) dated 19th January, 2007 to the 5th Respondent to the effect that the Appellant had been indicted by a Judicial Commission of Inquiry and therefore disqualified from contesting the Governorship Election. The petition was ignored as the 5th Respondent published the list of qualified candidates to contest the election on March 9, 2007 and so the action accrued on March 9, 2007 while this case was filed on 23rd March 2007 within the three months allowed under the Public Protection Act and so Ibrahim v. JSC (1998) 14 NWLR cannot hold in this instance.
That is the summary of all I have before me in this issue in question.
A statute of limitation, such as the Public Officers (Protection) Law, removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred; that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such a law.
Any action instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law.
Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549; Fadare v. Attorney-General Oyo State (1982) 4 SC; Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (pt. 584) 1.
The definition of “any person” in the Public Officers (Protection) Law cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated per Iguh JSC in Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (pt. 584) 1 at 36.
For Section 2 (a) of the Public Officers (protection) Law to avail any person, two conditions must be satisfied, namely:-
(a) it must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law; and
(b) the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. Ekeogu v. Aliri (1990) 1 NWLR (pt. 126) 345; Nwankwere v. Adewunmi (1967) NMLR 45; Atiyaye v. Permanent Secretary Ministry of Local Government, Borno State (1990) 1NWLR (pt. 129) 728.
The bone of contention between the Appellant on the one hand and the Respondents 1st – 4th is whether INEC being a Public Institution covered by the Public Officers Protection Act can be sued by the Respondents 1st- 4th since the Appellants contend the action was brought more than three months after the act complained of by the Respondents had taken place. The Respondents on their own part while not disputing that the INEC is covered by the Public Officers Protection Act submitted that their Originating Summons was within time that is within the three months to bring an action against an act of a Public Officer or Institution complained of. The Appellant’s contention is that since the Appellant filed his personal particulars of persons seeking election to the office of Governor which filing was done on 14th December 2006 and the Originating Summons of the 1st – 4th Respondents on 23rd March 2007 which was more than 3 months thus bringing into operation the Public Officers Protection Act to bar the suit. The Respondent’s contention that the cause of action did not commence on 14th December 2006 but on 9th march 2007 when INEC published the list of qualified candidates including Appellant and so the suit by originating process taken out on 23rd March 2007 was well within time and so the Public Officers Protection Act cannot apply to vitiate the process.
Mr. Falana also contended that the Public Officers Protection Act cannot avail the Appellant since it was not specifically pleaded in their counter affidavit which takes the place statement of defence in an originating summons procedure.
In Nwakanma v. Military Administrator Abia State (1995) 4 NWLR (pt. 388) 185 per Onalaja JCA.
The Appellant did not plead specifically that the respondents were Public Officers within the provisions of the Public Officers Protection Law. The Learned trial Judge was in error to have accepted the invocation of Section 2(a) thereof when such material fact or special defence was not pleaded by the respondent.
I have gone through the counter affidavit of the Appellant in contest against the originating process and the Public Officers Protection Act was not averred to which clearly has taken away the right to that privilege or advantage by the Appellant. Furthermore going through the processes the act of INEC which brought about the suit in the first place did not take place other than on the 9th March 2007 when the publication of the list of qualified candidates was made and not on the 14th December when the nomination of the Appellant was filed. Therefore from either the fact of non averment or the time frame of the act of the public officer including the Independent Electoral Commission INEC, the Public Officers Protection Act cannot be properly invoked in this instance and so the action remained alive and competent. Therefore I answer this question raised in this Issue NO.2 in the negative since the action is not statute barred as the requirements for the invocation of that act have not been fulfilled.
This appeal on the preliminary objection based on the statute of limitation is dismissed for lacking in merit since the action of the 1st-4th Respondent, in the court below was not statute barred.
I order N10, 000.00 to the 1st – 4th Respondents to be paid by the Appellant.
ISSUE THREE
Learned counsel for the Appellant stated that the immunity provision under Section 308 of 1999 Constitution is clear and unambiguous and has been judicially considered in the following cases:-
Duke v. Global Excellence Communication Ltd. (2007) 5 NWLR (pt. 1026) 81 at 106 – 107 H – A; Tinubu v. I.M.B. Securities Plc. (2001) 16 NWLR (pt. 740) 670 at 693 – 694, Alamieyeseigha v. Yeiwa (2002) 7 NWLR (pt. 797) 600-601 G – A; Bola Aidi v. ICPC (Unreported Judgment of the Court of Appeal NO: CA/A/149/M/03 delivered on 18th May, 2006.
Mr. Falana for 1st – 4th Respondent said that as cases relating to elections have been said to be sui generis it is submitted that the immunity enjoyed by a governor is inapplicable when he decides to contest an election and so reference to Section 308 of the Constitution in irrelevant in this case as an election matter. He cited Obih v. Mbakwe (2005) 50 WRN 106; AD v. Ayo Fayose (NO.1) (2004) 26 WRN 34.
Learned counsel for the Respondents 1st – 4th said in the light of the foregoing Appellant cannot rely on his immunity as a Governor when his qualification to contest election is in dispute. That although this is not an election petition per se it is an election related matter in which the 1st – 4th Respondents are seeking to have the Appellant excluded as a contestant having been indicted by the Nwazota Judicial Commission of Inquiry in line with Section 182 of the Constitution.
By virtue of the mandatory provision of Section 308 (1) of the 1999 Constitution, no civil or criminal proceedings’ may be instituted or, if already instituted shall be continued against any person holding the office of president, Vice President, Governor or Deputy Governor during his period of office. Rotimi v. Macgregor (1074) 11 SC 123 at 106; Duke v. Global Excellence Communications Ltd (2007 5 NWLR (pt. 1026) 81
Section 308 of the 1999 Constitution in its entirely never stated either expressly, specifically or by implication, that the Governor of a State while serving in office should not sue another person in his personal capacity for the infringement of his rights. If the makers of the Constitution had intended to subject the Governor to such disability it would have said so bold and clear and giving its ordinary literal interpretation, there is nothing therein stopping a Governor from initiating actions against other persons for reliefs in his personal capacity. It may appear rather odious and may be unfair that the same Constitution that protects a Governor from being sued does not correspondingly protect other persons from the suit of a Governor. But it is not for the court to read into the Constitution a provision not therein stated Tinubu v. I.M.B. Securities Plc. (2001) 8 NWLR (pt. 714) 192; Media Tech. (Nig.) Ltd. v. Adesina (2005) 1 NWLR (pt. 908) 461; Aku v. Plateau Publishing Corporation Ltd. (1985) 6 NCLR 338; Onabanjo v. Concord Press of Nigeria Ltd. (1981) 2 NCLR 298.
Every clause in a statute has to be construed with reference to the contest and other clauses of the Act as far as possible to make for a consistent understanding of the enactment of the whole statute. See N.E.C. Izuogu (1993) 2 NWLR (pt. 275) 270; Orubu v. N.E.C. (1988) 5 NWLR (pt. 94) 323.
Although the rule of literal construction should be invoked in interpreting statutory provisions, where however, absurdity may result, it is permissible to depart from the strict literal interpretation. And it is as well a cardinal rule of construction that in seeking to interprete a particular Section of a statute, one does not take the Section in isolation but must approach the question of the interpretation on the footing that the Section is but a part of greater whole. In such circumstances as this, reference should be made to associated words which may bring out the meaning of the particular provision under consideration. N.E.C. v. Izuogu (1993) 2 NWLR (pt. 275) 270 at 291; F.C.S.C. v. Laoye (1989) 2 NWLR (pt. 106) 652 at 723.
Having said all that the next thing question to answer is whether by virtue of the immunity clause in Section 308 of the 1999 Constitution, an action or suit such as the one in contention here can be sustained. I would venture to posit that the provision of Section 308 cannot apply in the present circumstance.
The provision of Section 308 of the 1999 Constitution is not applicable to confer immunity on a State Governor in an election petition challenging his election as to preclude the issuance of subpoena on him. The immunity provided by the provision of Section 308 of the 1999 Constitution or a State Governor is put in abeyance when his election is being disputed before an election Tribunal as to make him subject to being compelled by a subpoena to tender documents or give evidence before the election Tribunal. See A.D. v. Fayose (2004) 8 NWLR (pt. 876) 639 at 652; Tinubu v. I.M.B. Securities Ltd (2001) 16 NWLR (pt. 740) 670; Obih v. Mbakwe (1984) 1 SCNLR 192; Unongo v. Aku (1985) 6 NCLR 262.
Put differently, a State Governor cannot invoke this immunity clause of Section 308 of the Constitution when the issue in controversy basically has to do with the question as to whether or not he has the right to so invoke. That has put his stature and right to immunity on hold. This Issue NO. 3 are answered negatively as in matters concerning his qualification to election or the election proper he does not enjoy the immunity.
ISSUES 4 & 5
Learned counsel for the Appellant stated that what vests the trial court with jurisdiction in this instance is Section 32(4) of the Electoral Act 2006 which provides any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a state or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.
That Section 145(1) of the Electoral Act 2006 however allows the election of an alleged candidate or an elected person provided false information to governor votes to be challenged on grounds of Section 145(1), an election may be questioned on the ground that the person is not qualified to contest the election.
Mrs. Adesina said Section 32(4) envisages a pre-election situation where the court could decide such case before the conduct of an election but once the election is conducted, Section 45(1) (a) stripes the High Court or Federal High Court of its jurisdiction. He cited INEC v. Action Congress (2007) 6 NWLR (pt.1029) 142 at 161 paras C-D; Nabaruma V. Offodile (2004) 13 NWLR (at 891) 599 at 605; Section 285 of the 1999 Constitution on the fact that in matters coming after an election only the Election Tribunal has jurisdiction.
Learned counsel for the 1st- 4th Respondents stated that it was the Appellant who engaged in dilatory tactics at the lower court that in any case jurisdiction of the court is determined as at the time the cause of action arose. That on March 23, 2007 when this case was commenced at the Federal High Court, Abuja there was no feature which vitiated the jurisdiction of the court. That the Appellant knew of the pendency of this matter yet took the risk to contest the election when his eligibility was being challenged. That the lower court rightly dismissed the objection of the Appellant because the issue has nothing to do with the election petition. He cited Jang v. Dariye (2004) FWLR (pt 194) 412; Enaji V. Inuwa (1992) 2 NWLR (pt 231) 584.
Mr. Falana said under the doctrine of pendens lite nibil innavetu (during litigation nothing new should be introduced) any party that takes any action during the pendency of a suit does so at his own risk. He cited Barclays Bank of Nigeria Ltd. v. Ashiru & Ors. (1978) II NSCC 251.
Learned counsel for the Respondent contended that upon the conduct of the 14th April 2007 elections, his suit can no longer be entertained by the trial court since there exists a feature in the case which prevents the court from exercising its jurisdiction and so the suit has been rendered incompetent and hereby the court’s jurisdiction had been ousted. That to determine whether or not the issues in this suit are spent this court must have regard to the nature of the reliefs claimed by the plaintiffs who are here as 1st – 4th Respondents against the defendant being appellant and 5th respondent. That the reliefs in the originating summons are 5 reliefs, 1-3 are declaratory, relief 4 is mandatory order while relief 5 is an injunctive restraining order.
He said one of the cardinal principles of equity is that equity does nothing in vain and the court does not engage itself in a matter that is merely academic.
That of the relief as presently constituted the Respondents 1st – 4th as plaintiffs asked for order which are unenforceable against in the defendants (Appellant and 5th Respondent) as the acts complained of have been completed, extinguished or irreversible at this stage. Mr. Maledo for the 5th Respondent said Section 34 of the Electoral Act 2006 under which the plaintiff brought his action presupposes a situation where he issues would be adjudicated prior to elections and once elections have been conducted, every issue arising here from becomes a post election matter for which only the Election Petition Tribunal is vested with jurisdiction to entertain. He referred to Ajewole v. Adetimo (1996) 2 NWLR (pt 431) 319 at 393; Ayorinde v. Attorney-General Oyo state (1996) 3 NWLR (pt 434) 20, 24; A-G Federation v. ANPP (2003) 18 NWLR (pt 851); A-G Plateau State v. Attorney-General Federation (2006) 3 NWLR (pt 967) 346; Order 4 of the Court of Appeal Rules 2007; Bamaiyi v. State (2006) 12 NWLR (pt 994) 221, 243.
Learned counsel said it is settled law that in determining whether a suit is competent the court looks at the originating processes and the claims made against the defendants and since 5th Respondent has established that the plaintiff’s claims had been extinguished there is nothing to give than the right to action to see and so there being no cause of action, the suit is incompetent and should be struck out.
The Reliefs sought by the Respondents 1st – 4th in the court below are:
- A DECLARATION that the 1st Defendant is not qualified for election to the office of the Governor of Ondo State having been indicted by the Obiora Nwazota Judicial Commission of Inquiry which indictment was accepted by the Federal Government pursuant to Section 182 (1) (1) of the Constitution of the Federal Republic of Nigeria 1999.
- A DECLARATION that the 1st Defendant is disqualified from contesting for election to the office of Governor of Ondo State having given false information in his affidavit contrary to Section 32 (5) of the Electoral A4 2006.
- A DECLARATION that the purported clearance given to the 1st Defendant by the rd Defendant to contest for the office of the Governor of Ondo State on April 14, 2007 is discriminatory, illegal and unconstitutional as it contravenes Section 42(1) of the Constitution of the Federal Republic of Nigeria 1999.
- AN ORDER directing the 2nd Defendant to delete forthwith the name of the 1st Defendant from the List of Candidates cleared for election to the office of the Governor of Ondo State fixed for April 14, 2007.
- An ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant from further parading himself as a candidate in the Governorship Election fixed for April 14, 2007 in any manner whatsoever and howsoever
In the supporting affidavit of the Originating Summons the 1st Plaintiff/1st Respondent deposed inter alia on behalf of the other Respondents that is 2nd – 4th:-
- That on Sunday, September 18, 2005 THIS DAY Newspaper published the Report of the Obiora Nwazota Judicial Commission of Inquiry wherein the 1st Defendant was indicted and recommended to refund the sum of US$3.5 million to the Federal Government
- That I was embarrassed when I read in the National Dailies that the Peoples Democratic Party had submitted the name of 1st Defendant (Appellant) to the 2nd Defendant as a candidate in the Governorship election fixed for April 14, 2007.
- That the 2nd Defendant ignored the Petition and cleared the 1st Defendant to contest the governorship election in Ondo State on April 14, 2007
By virtue of Section 285(1) (d) of the 1999 Constitution, the Election Tribunal to the exclusion of any court or Tribunal has original jurisdiction to hear and determine petitions as to whether a question or petition brought before the Election Tribunal had been properly or improperly. It is therefore immaterial whether the tribunal is a superior court of record or not. See Nabaruma v. Offodile (2004) 13 NWLR (pt. 891) 599.
Election matters are sui generis and do not deal with the civil rights and obligations of parties. They are peculiar in nature and because of this peculiarity and importance to the well being of a democratic society, they are regarded with aura that places them over and above normal day – to day transactions between individuals which give rise to ordinary claims in court. Thus, an election petition is not always to be treated as ordinary civil suits in court. Election legislation creates special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purposes. Nabaruma v. Offodile (2004) 3 NWLR (pt. 891) 599 at 626; Orubu v. INEC (1988) 5 NWLR (pt. 94) 323; Abdullahi v. Elayo (1993) 1 NWLR (pt. 268) 171.
The reliefs which the 1st – 4th Respondents sought in the court below and which were not conclusively considered in the light of the dismissal of the preliminary objection of the Appellant which was dismissed for lacking in merit. It seems to me that it would be extremely difficult for any regular court to embark on this exploration on the qualification or disqualification of the Appellant to contest an election which has already taken place and an Election Tribunal in place which tribunal has been vested with the necessary powers to determine all relevant questions relating to that election. See Enaji v. Inuwa (1992) 3 NWLR (pt. 231) 548; Ikuogbogun v. Rabiu (1989) 4 NWLR (pt. 114) 216; Onuola v. Okafor (1983) 2 SCNLR 244; Balonwu v. Chinyelu (1991) 4 NWLR (pt. 183) 30.
For a fact for any court other than the Election Tribunal to delve into the questions and reliefs sought in the instant case would be one interloping into another without a clear view with a possible confusion arising as to what should be, and whose order would hold precedence over the other, that is whether Election Tribunal or regular court.
What has now cropped up is whether or not this current exercise is not one that should be taken in an academic discussion group. It is true that issues relating to the interpretation of the Constitution, which is a living document are serious issues and cannot be regarded as academic, speculative or hypothetical per Kutigi JSC (as he then was); See also Alapiki v. Governor of Rivers State (1991) 8 NWLR (pt. 211) 575; Royal Petroleum Company Ltd. v. First Bank of (Nig.) Ltd. (1997) 6 NWLR (PT. 510) 584.
In Attorney-General Federation v. ANPP (2003) 18 NWLR (pt. 851) 182 at 210 – 211 per Tobi JSC.
“Courts of law do not embark on academic exercise because they are not academic institutions. Therefore, there must exist between the parties to a suit or an appeal a matter in actual controversy which the court is called upon to decide as a living issue. This is because on the basis of the extant grundnorm upon which the judicial authority of the courts is based, courts in Nigeria have no jurisdiction to give advisory opinions. Any judgment which does not decide a living issue is academic or hypothetical. It stands in its best quality only as an advisory opinion. The Supreme Court and other courts in Nigeria will not engage in rendering such a judgment”. Akeredolu v. Akinremi (1986) 2 NWLR (pt. 25) 710; Atake v. Afejuku (1994) 9 NWLR (pt. 368) 379; Tanimola v. Surveys and Mapping Geodata Ltd. (1995) 6 NWLR (pt. 406) 617; Adelaja v. Alade (1999) 6 NWLR (pt. 608) 544; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; UBN Plc. v. Scpok (Nig.) Ltd. (1998) 12 NWLR (pt. 578) 439; Nnubia v. Attorney-General Rivers State (1999) 3 NWLR (pt. 593) 82; Attorney-General Kwara State v. Alao (2000) 9 NWLR (pt. 671) 84.
The prevailing circumstance from all the facts available and the authorities related thereto have squarely positioned this matter as an academic exercise which this court cannot easily or successfully conclude the way the 1st – 4th Respondents are asking. I have no difficulty in agreeing with the views of the Appellant’s counsel that indeed the exercise is a time wasting one in view of the proper forum, the Election Tribunal that has the capacity to answer the questions here and also the questions pertaining to the election proper. The suit of the 1st – 4th Respondents in the court below cannot be entertained by the usual High Court or Federal High Court in this matter of the Appellant’s qualification to contest, with the existence of the Election Tribunal which is the correct forum. To allow the multiplicity of suits which the Respondents 1st – 4th and such like minded would unleash on the polity is best imagined and would definitely ridicule the judiciary but would not serve a positive purpose and the suit below cannot be. This appeal based on issues 4 and 5 is allowed, since the Election Tribunal is in place, the jurisdiction of this court in the matter in contest is ousted. The decision of the court below is set aside.
I order costs of N20, 000.00 to the Appellant to be paid by the 1st – 4th Respondents in this appeal.
Other Citations: (2008)LCN/2623(CA)
