Farouk Salim Vs Cpc & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C

This is an appeal filed by the Appellant against the judgment of the Court of Appeal dismissing the appeal filed by the Appellant against the Ruling of the High Court of Kano State of Nigeria declining jurisdiction to hear and determine the case filed by the appellant challenging the nomination of the 3rd Respondent as the candidate of Congress for Progressive Change concerning Tarauni Federal Constituency of the House of Representatives for the April, 2011, Elections.

The Court of Appeal in its judgment affirmed the decision of the High Court of Kano State of Nigeria that the case filed by the Appellant was incompetent and the court lacked jurisdiction to hear and determine it. The Appellant still dissatisfied has appealed to this court.

The Appellant as Plaintiff at the Trial Court commenced an action by originating summons dated 17th May, 2011 against the Respondents (more specifically the 3rd Respondent) seeking the following reliefs:

“(i) A declaration that by virtue of the provisions Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiff is in the eyes of the law, the nominated candidate of the 1st Defendant entitled to all the benefits of his candidature as a flag bearer of the 1st Defendant in respect of the said member of the House of Representatives for Tarauni Constituency for Kano State at the April 9th, 2011 election.

(ii) A declaration that the plaintiff is the sole candidate of the 1st Defendant after the 9th of January, 2011, regards had to the report of the harmonization committee of the 1st Defendant which was affirmed by the board of trustees of the 1st Defendant, pursuant to which the name of the plaintiff ought to have been submitted to the 2nd Defendant as the candidate of the 1st Defendant for the Tarauni Federal constituency for the purpose of April, 9th election.

(iii) A declaration that in view of sections 33 and 87 (3) of the Electoral Act, 2010 as amended and having acquired vested interest in the party ticket as the duly nominated candidate for House of Representatives for Tarauni Federal Constituency of Kano state for April 9th, election, the plaintiff’s candidature cannot be rejected, disregarded, revoked, reversed, annulled, re-assigned to or be substituted with the 3rd Defendant when the plaintiff is still alive and have not withdrawn his candidature to contest on the platform of the 1st Defendant at the April 9th election.

(iv) A declaration that in view of sections 33 and 87(3) of the Electoral Act, 2010 (as amended) and having regards to the fact that the 1st Defendant’s primary election organized on the 9th of January, 2011, so as to nominate for member of House Representatives Tarauni Federal constituency, was inconclusive or no primary election at all, regards being had to the report of the harmonization committee of the 1st Defendant, therefore, the 2nd Defendant was wrong to have recognized and included the 3rd Defendant as a candidate of the 1st Defendant for the Tarauni Federal Constituency at April 9th general election.

(v) A declaration that in view of sections 65 (1) b, 2(a) (b), 221, 222 and 223 of the constitution of the Federal Republic of Nigeria 1999 (as amended) and sections 87 (1), 4(c), 9 and 10 of the Electoral Act 2010 (as amended) and the provisions of the constitution and primary election, guidelines of the 1st Defendant, and having regards to the expression of interest form, and nomination form for member House of Representatives Tarauni Federal constituency which the Plaintiff purchased and submitted to the 1st Defendant, it can be said that, the Plaintiff has presented himself as nominated candidate of the 1st Defendant which contested and won the election held on 9th April, 2011, and deemed as the 1st Defendant elected and returned held at the said date, as a member representing Tarauni Federal Constituency.

(iv) An order of perpetual injunction restraining the 1st and 2nd Defendants, their servants, agents and or privies from recognizing the name of the 3rd Defendant or any person however other than that of the plaintiff House of Representatives for Tarauni Federal Constituency Kano state in the April 9th, 2011 general election.

(vii) An order of perpetual injunction restraining the 3rd Defendant from parading himself as the duly nominated candidate of the 1st Defendant in respect of April 9th, 2011 National Assembly Elections to the House of Representatives representing Tarauni Federal Constituency of Kano State.

(viii) An order of prohibitory injunction restraining the 2nd Defendant, its agents, servants or privies from giving recognition to any other person other than the Plaintiff as candidate of the 1st Defendant who won the seat of Tarauni General Election conducted and concluded on 9th April, 2011.

(ix) An order of mandatory injunction compelling the 2nd Defendant to retrieve and issue certificate of return in the name of the plaintiff as the 1st Defendant candidate who won the seat of member House of Representatives Tarauni Federal constituency, in the event that the 2nd Defendant has wrongly done so in favour of the 3rd Defendant.

FACTS:

The Appellant was an aspirant for the nomination in the Primary Election conducted by the 1st Respondent to nominate its candidate in the Tarauni Federal Constituency (Kano State of Nigeria) of the House of Representatives for April, 2011 elections. At the end of the exercise, the 3rd Respondent was declared the winner on the ground that the 3rd Respondent polled majority of the votes cast. The name of the 3rd Respondent was then submitted to the 2nd Respondent and based on that, 3rd Respondent contested the General Election held on the 9th April, 2011 at the end of which he was declared elected as member of the House of Representatives.

Thirty-eight (38) days after the general election of 9th April, 2011,the Appellant filed a suit in the High court of Kano State challenging the nomination of the 3rd Respondent as the candidate of the 1st Respondent for the said constituency. The exact date of filing of the suit being 17th May, 2011.

The Respondents objected to the jurisdiction of the High court to hear and determine the case on the basis that the suit was no longer a pre-election matter since it was instituted 38 days after the conclusion of the election.

The High court in a considered ruling upheld the objection of the Respondents and struck out the suit. An appeal to the Court of Appeal was unsuccessful as that court upheld the decision of the court of first instance. Aggrieved, the Appellant has appeared to the Supreme Court.

At the hearing on the 13th November, 2012 the Appellant through learned counsel on his behalf adopted his Brief of Argument settled by Victor Oruno Esq. and filed on 23/4/12. In it were distilled three issues for determination, viz:-

(1) whether the filing of the Appellant’s suit at the Trial Court after the elections of 9th April, 2011 had the effect of making the Appellant’s suit statute barred or time barred (from grounds II and III of Notice of Appeal).

(2) whether the Court of Appeal was right when it relied on the Supreme Court decision in Alhaji Jibrin Bala Hassan v. Dr. Muazu Babangida Ibrahim Aliyu & 2 ors (2010) All FWIR (pt.339) 1007 and dismissed the Appellant’s appeal (Distilled from Grounds II and III of the Notice of Appeal).

(3) whether from the combined effect of section 251, Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 87 (10) (as amended) the State High Court had jurisdiction to entertain the suit of the appellant at the Trial Court where Independent National Electoral Commission (INEC) an agency of the Federal Government is a party to the said suit. (Distilled from Ground 1 of the Notice of Appeal).

The 1st Respondent had adopted, their Brief of Argument settled by Chief Okoi Ofem Obono-Obla which was filed on 5/11/12 and deemed filed on 13/11/12. In the Brief were framed two issues for determination as follows:-

(1) Was the Court of Appeal right when it affirmed the decision of the court of first instance that the suit filed by the Appellant was incompetent and therefore the court lacked jurisdiction to hear and determine same.

(2) Was the Court of Appeal right when it affirmed the decision of the Court of first instance that the suit filed by the Appellant 38 days after the General Election held on the 9th April, 2011, was no longer a pre-election matter and therefore incompetent.

Learned counsel for the 2nd Respondent adopted their Brief of Argument settled by Hassan Abdurahman Esq, filed on 10/5/12. In the Brief was couched a single issue for determination which is thus:-

Whether the Court of Appeal was right to have upheld the decision of the Trial Court on the ground that the trial court lacks jurisdiction to try this case.

For the 3rd Respondent was adopted by learned counsel on his behalf a Brief of Argument settled by M. L. Ibrahim Esq. and filed on 9/5/12. In it were formulated two issues for determination as follows:-

1. Whether the Court of Appeal was not right when it affirmed the decision of the Trial Court on the ground that the originating summons filed by the Appellant before the Kano State High Court is a matter within the exclusive jurisdiction of the Federal High Court.
2. Whether the Court of Appeal was not right when it held and affirmed the decision of the High Court on the ground that the suit was incompetent having been instituted after the general election and therefore no longer a pre-election matter.

Having stated the issues as framed by each of the parties, I cannot resist the use of the single issue couched by the 2nd Respondent which is sufficient to rest all nagging questions as seen through the eyes of each counsel. Also, Issues 1 & 2 of the Appellant cannot be framed from two Grounds of Appeal II and III at the same time therefore, they are liable to be struck out as incompetent, I hereby strike them out leaving issue III surviving.

I would utilise the sole issue of the 2nd Respondent thus:-

Whether the Court of Appeal was right to have upheld the decision of the Trial Court on the ground that the Trial Court lacks jurisdiction to try this case.

Learned counsel for the Appellant contended that the finding of the Court of Appeal that the Trial Court no longer had jurisdiction over the Appellant’s claim as same was filed after the General Election of 9th April, 2011 was wrong and a gross misconception of the position of the law. That the Appellant’s cause of action only became complete on the 8th April, 2011 when the Board of Trustees of the 1st Respondent (1st Defendant at the trial court) approved the appellant/Plaintiff as the duly nominated candidate of its party. That in that case the suit initiated on the 17th May, 2011 is not statute barred. He cited Union Bank Plc v Umeoduagu (2004) 7 SCNJ 75 at 80; Nemo II v Adekanye (2004) All FWLR (Pt.224) 2113; Black’s Law Dictionary edited by Bryan Graner (8th Edition) at page 150 in its definition of a statute of limitation.

Going on, learned counsel stated that Section 295 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by its literal interpretation does not confer jurisdiction on the Election Petition Tribunal to hear intra party dispute involving nomination of candidate or in matters filed after the election pertaining to the nomination or selection of a candidate for an elective post. That Section 285 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not stipulate the time limit within which a Plaintiff can come to court to challenge the nomination of a candidate within a political party. He cited Odedu v. INEC (2008) 7 SCNJ 1 at 39; NPA Plc v. Lotus Plastic Ltd (2006) All FWLR (Pt.297) 1023.

That the cause of action became complete on the 8th of April, 2011 when the Board of Trustees of the 1st Respondent approved his nomination as its candidate and so filing the suit on the 17th of May, 2011 after the elections of 9th April, 2011 had not robbed the Trial Court of its jurisdiction to entertain the suit.

For the Appellant, it was submitted that this matter is different from Babangida Aliyu’s case as the Appellant in this present case did not sleep on his rights.

Learned counsel went on to say for the Appellant that this is not one of those matters concerning a Federal Government Agency which must only be handled by the Federal High court and not by the State High Court.

This is because of the novel provision of Section 87 (10) of the Electoral Act (as amended). He referred to the cases of Adetayo & Ors v Ademola & Ors (2010) All FWLR (pt. 533) 1806 at 1823 – 1828; Olofu v. Itodo (2010) 12 SCM 186 at 203; Onuora v. K.R.P.C. (2005) All FWLR (pt. 256) 1356; Ucha v Onwe & Ors (2011) 1 SCNJ 232; Adigin v Asugbon (2008) NSCQLR Vol.36 (Pt.1) 171 at 193 Dingyadi INEC 4 Ors (2011) 4 SCNJ 38.

It was canvassed for the Appellant that this court should under section 22 of the Supreme Court Act grant the reliefs of the Plaintiff/Appellant’s originating summons dated 17th May, 2011. He cited Registered Trustees v MWHUN (2008) 34 NSCQR 321; Ladoja v. INEC (2007) All FWLR (Pt.377) 934 at 996 – 997.

For the 1st Respondent,it was contended that it is the claim of the Plaintiff as encapsulated in the Writ of Summons and Statement of claim that will determine whether or not a court can assume jurisdiction to hear and determine a case. Also that it is that same Writ of Summons and Statement of Claim that the court will look into when an objection is taken against its competence to hear and determine a case on the ground that it does not possess jurisdiction. That in the instant case, the 2nd Respondent being an Agency of the Federal Government the matter is caught by Section 251 of the Constitution and the jurisdiction of the State High Court ousted. He referred to Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 427 at 588 – 589; University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 at 725: Obasanya v. Babafemi (2000) 23 WRN 30: Alliance For Democracy (AD) v. INEC (2003) 34 WRN 55; Chief Lambert Nmecha v. INEC (2000) FWLR (Ppt.12) 2062 at 2078; Adekoye v Nigerian Security Printing and Minting Company Ltd (2009) 5 NWLR (Pt.1134) 322.

Learned counsel further stated for the 1st Respondent that the concurrent findings of the two Courts below are without blemish and do not admit of any interference by this court. He cited Asariyu v. State (1987) 4 NWLR (pt.67) 709; Ajao v. Alao (1986) 5 NWLR (Pt.45) 802; Kinuiey v. Military Governor, Gongola State (1988) 2 NWLR (Pt.77) 445; Dibiamaka v. Osakwe (1989) 3 NWLR (Pt.107) 101; Agbana v. Owa (2004) 8 MJSC 57; Odedo v. INEC (2008) 7 SC 25.

That the claim of the appellant has become academic and hypothetical and the court lacks jurisdiction to entertain cases that are equally academic and hypothetical and does not merit adjudication by this court. He relied on the cases of Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt.262) 641; Plateau State v A. G. of the Federation (2005) 3 NWLR (pt. 967) 346; Tanimola v. Mapping Godatta limited (1995) 5 NWLR (pt.403) 617; Nwoboshi v. ACB (1995) 6 NWLR (Pt.404) 658; Ogbonna v. President FRN (1997) 5 NWLR (Pt.504) 281; Ndulue v. Ibezim (2002) 12 NWLR (Pt.780) 139. That the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. He relied on Ayogu v. Nnamani (2006) 11 NWLR (pt.981) 160; Kolawole v. Folusho (2008) 8 NWLR (Pt.1143) 338.

For the 2nd Respondent,it was contended that the Election Tribunal had power to adjudicate on this particular pre-election case. He cited Hassan v Babangida Aliyu & ors (2010) All FWLR (pt. 532) 1016.

For the 3rd Respondent it was contended that this is one of the instances where Section 251 (r) of the Constitution 1999 applies to give exclusive jurisdiction to the Federal High Court. He cited KLM (2003) FWLR (Pt.184) 317; NEPA v. Edegbero & Ors (2003) FWLR (pt.139) 1556 (i) (q), (r), (s) of the 1999 Constitution as amended by Decree 107 of 1993 which is completely the same with the provisions under section 251 (r) of 1999 Constitution now under reference.

It was argued by the 3rd Respondent that the jurisdiction of the State High Court to adjudicate on a matter such as the current was ousted by virtue of Section 251 (1) (q), (r), (s) on account of the 2nd Respondent being, the Independent National Electoral Commission (INEC) was an agency of the Federal Government. This position was attacked by the Appellant. It needs be said that it is not in dispute that the 2nd Respondent is an agency of the Federal Government. On the face of it and on account of section 251 of the 1999 Constitution, impari material to section 230 (i) of the 1979 Constitution, the power to adjudicate in respect of this pre-election matter would have been that of the Federal High Court exclusively. That scenario seems to be adjusted in the current trend as shown in the recent cases of this court. See Adekoya v. Nigerian Security Printing and Minting Company Limited (2009) 5 NWLR (Pt.1134) 322 for the old situation and Tobi JSC in the judgment of this court in Senator Julius Ucha v. Dr. Emmanuel Onwe & Ors (2011) 1 SCNJ 232 stated thus:-

“The nomination and/or substitution exercise of the 4th Respondent upon which petition was predicated was clearly a pre-election matter over which only the Federal High Court or State High Court has jurisdiction.”

This court would take the stand it took in Ucha v. Onwe (supra) because of the brand new provision of section 87 (9) of the Electoral Act, 2011 as amended. I would like to quote it here for clarity and it is thus:-

“Section 87 (9):

Notwithstanding the provisions of the Act or Rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”

It is therefore to be said in view of this novel provision that the previous all embracing interpretation of Section 251 of the 1999 Constitution is given once the Federal Government or its agencies are involved would have to be given a broad view in the co-existing situation of the provisions of Section 87 (9) Electoral Act and the sui generic nature of the subject matter. In that whole picture therefore Section 251 would be applied subject to this specific legislation in the factors at play. That was the mind of this court as anchored by Mohammad JSC in Adetayo v Ademola (2010) All FWLR (pt.533) 1806 at 1823 – 1828 when he stated thus:

“On the face of the provisions of the constitution it appears that impression has been created that the Federal High Court has exclusive jurisdiction to the exclusion of all other Courts in Nigeria in any civil cause or proceedings in which the Federal Government or any of its agencies is a party. However, a very close careful and proper interpretation or construction of the provision would show that this is not necessarily the true position. This is because in my view, it is the facts and circumstances of each case that determines… The need to examine the parties in the litigation as well as the subject matter of the litigation was strongly advised for close scrutiny.”

I would also refer to the cases of Adigin v. Asugbon (2008) NSCQLR Vol. 36 (Pt.1) 171 at 193; Dingyadi v. INEC & Ors (2011) 4 SCNJ at 38.

The conclusion from the above is that the Court of Appeal was in error in holding that the Federal High Court had the exclusive jurisdiction to adjudicate on this pre-election dispute to the exclusion of the State High Court. This is because the jurisdiction is exercisable by either the Federal High Court or the State High Court or High Court of the Federal Capital Territory.

On whether the jurisdiction of the Trial Court was extinguished by effluxion of time. The stand of the Appellant is that they were in good stead, the cause of action being complete on the 8th of April, 2011 a day to the general election of 9th April 2011, when the Board of Trustees of the 1st Respondent (1st Defendant at the Trial Court) approved Appellant/Plaintiff as the duly nominated candidate of its party even though the Appellant filed 38 days after the 9th April election that is 17th May, 2011.

The position of the Respondent is that by that date of filing, the cause of action as a pre-election matter had ceased to exist.

The reason for the argument of the Appellant is that the action cannot be said to be statute barred as there is no provision prescribing a period of time between the cause of action and the initiation of proceedings.

For a fact, there is no limitation of action from which a computation can be made but again the reliefs in the Originating summons show that the primary election conducted by the 2nd Defendant was on 9th of January, 2011 and the 1st Defendant declared winner inspite of the view of the Appellant that he and not the 1st Respondent scored the majority of the votes and ought to have been so declared. The Appellant left his grievances unventilated until all the gymnastic displays of his processes to its party headquarters when the Board of Trustees held on the 8th April, 2011 that he was the rightful winner. This after his political party had submitted the name of the 1st Respondent to INEC, 2nd Respondent and the 1st Respondent put forward as candidate and stood in for the elections of 9th April, 2011, and declared winner and a few days to swearing in. The situation of the Appellant shows a laxity and a lack of seriousness in a wishful hope that after the election without going through the electoral process he would be declared by the court as the authentic candidate and the reason to rightfully occupy the House of Representatives seat for Tarauni Federal Constituency of Kano State, the party having polled the majority of the lawful votes cast which then would be ascribed to the Appellant.

That clearly is a beautiful dream which has no chance of actualisation. Firstly, when the primary result was declared for his opponent contrary to what Appellant perceived as wrong and upon that name being submitted to INEC, he ought without delay to have commenced the court process. He failed to do that and waited 38 days after the general election to file what he calls a pre-election process. The Trial Court was not impressed with the stance of the Appellant and the Court of Appeal agreed holding that after the general election this particular case should have been a matter for the Election Tribunal. This position based on the stand of this court in Bala Hassan v Babangida Aliyu & ors (2010) All FWLR (Pt.532) at 1015. This court had, per Onnoghen, JSC held thus:-

“I hold the view that at the time Appellant decided to go to court in the circumstances of this case, the question of nomination by way of substitution which is a pre-election matter had ceased to exist leaving only the election proper to be questioned and the proper place to do so is the Election Tribunal. If the situation in this case is encouraged it will breed uncertainty to the point when a person may take up a year or more after an election and swearing in of a president or governor to challenge his nomination by way of substitution for election that brought him to power. The above clearly demonstrate the fact that in election matters whether pre-election or election proper or election related matters, time is of essence.

The situation in Bala Hassan v Babangida Aliyu (supra) while on all fours with the matter in hand is different from what transpired in Odedo v INEC (2008) 7 SC 25 where this court per Muntaka-Coomassie, JSC said since the aggrieved party did not sleep over his rights but took steps immediately he became aware of his substitution, the jurisdiction of the court to entertain the suit remained intact.

It is therefore to be said that the concurrent findings of fact of the two courts below that the Appellant having been tardy in ventilating his grievances and claiming his rights he lost the chance for all time and so whether there was a specific provision of an ouster of jurisdiction by the expiration of time or not the circumstances produced an effect tantamount to a statute bar. This being so, there is no leg upon which an interference in those findings by this court can stand since those findings did not arise either from a perverse application by those courts or that the findings were not supported by evidence or that a wrong application of the substantive or procedural law had taken place. Also no miscarriage of justice has occurred. I place reliance on Asarivu v state (1987) 4 NWLR (pt.67) 709; Ajao v. Alao (1986) 5 NWLR (pt.45) 802; Agbanna v. Owa (2004) 8 MJSC 57.

In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the Appellant as Plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those Courts above mentioned as in this instance. See Tanimola v. Mappine Godatta Limited (1995) 6 NWLR (Pt.403) 617; Ogbonna v. President of the Federal Republic of Nigeria (1997) 5 NWLR (pt.504) 281; Ndulue v. Ibezim (2002) 12 NWLR (Pt.780) 139.

Indeed the matter is settled that the Trial High Court lacked jurisdiction, which situation affected the process in the Lower court and also this apex Court. Just as those two courts said, there is no jurisdiction and I join them in saying, this apex court has no jurisdiction either. Therefore this appeal is dismissed for lacking in merit. I affirm the judgment of the Court of Appeal which agreed with the striking out of the suit by the Trial High Court. I award costs of N100,000 to the 1st & 3rd Respondents to be paid by the Appellant.

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SC.160/2012