Federal Republic Of Nigeria Vs. Enwenede Solomon & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
CLARA BATA OGUNBIYI, J.S.C.
The Respondents herein were jointly charged before the Delta State High Court vide the charge sheet dated 19th day of August, 2010 containing Ten (10) counts. All the offences were charged under the Independent Corrupt Practices and Other Related Offences Acts,2000 (Pages 2 – 6 of the Records contained the Charge sheet and the proof of evidence).
They were arraigned on the 14th day of October, 2010 before the High Court Sapele Judicial Division.
The plea of each of the accused Persons was taken and they were also granted bail on the some day (Pages 137 – 139 of the Records are in reference).
By a motion dated the 5th of November, 2011, the 1st and 2nd Respondents applied to the lower Court for the quashing of counts 1, 2, 7, 8, 9 and 10 and the statement of offence in the information on the grounds set out on the motion paper. (The motion on Notice/Preliminary Objection is at pages 82 – 90 of the Records). This application was however withdrawn and struck out during the proceedings of the 29th of November, 2011 (see proceedings at pages 140 – 141 of the
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Records).
By another application dated 16th day of August, 2011 but filed on the 29th day of August, 2011 the 1st and 2nd Respondents applied to the trial Court and prayed as follows:
“AN ORDER of this Honourable Court dismissing/striking out this charge or otherwise quashing same on the ground that this Honourable Court lacks the requisite jurisdiction to try the offence as contained in the charge sheet in view of the provisions of SECTIONS 129(1)(A), 132(1)(B) and (C) OF THE DELTA STATE LOCAL GOVERNMENT LAW OF 2004 AND SECTION 64 OF THE CPL.”
The said application was predicated on 8 grounds and supported by a 15 paragraphs affidavit deposed to by the 2nd Respondent and the thrust of which was that the Lower court lacked the requisite jurisdiction to sit over the charge, since all the offences alleged in the charge consist of electoral offences contained in the Delta state Local Government Law of 2004. (The preliminary Objection/ Motion on Notice, Affidavit and Written Submission are at pages 105 – 122 of the Records).
On the 29th day of November, 2011, the trial Court took argument on the said application and delivered a Ruling on the
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21st day of February, 2012 wherein the said application was dismissed. The 1st and 2nd Respondents thereafter approached the Lower Court vide two Notices of Appeal on the 5th day of March, 2012. Both Notices contain only one ground.
An application by the 1st and 2nd Respondents, to consolidate the two Notices of appeal, to amend the notices and argue additional grounds of appeal as well as to raise fresh issue on appeal, was heard and granted in chambers.
The lower Court delivered its judgment on the 11th day of December, 2013 and allowed the appeal. This appeal herein therefore is against the said decision of the lower Court.
The Notice of appeal was filed at the lower Court on the 21st day of February. 2014. It was dated the same day (see pages 313 – 316 of the Record of Appeal).
In accordance with Rules of Court, Briefs of Argument were filed by both Parties:
1) Appellant’s Brief of Argument was settled by one Enosa Omoghibo Esq. and filed on 16/10/14.
2) 1st and 2nd Respondents’ Brief of Argument was settled by one A. M. Kotoye Esq., and filed on 2/7/15.
3) Appellant’s Reply Brief of Argument was settled also by his
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counsel Enosa Omoghibo and filed on 21/3/15.
On the 5th October, 2017, at the hearing of the appeal, Mr. E. Omoghibo represented the Appellant while A. M. Kotoye Esq. appeared for all the Respondents.
The learned counsel on behalf of the respondents applied to withdraw their preliminary objection filed 2/7/15 and same was struck out.
Both counsel representing the parties adopted and relied on their respective briefs of argument. While the appellant’s counsel moved the Court to allow the appeal, a verdict of dismissal was sought for on behalf of the respondents.
The two issues formulated by the appellant for determination are as follows:
1) Whether having regard to the facts and circumstances that councillorship elections did not hold on the 10th day of May, 2008 in Uzere ward 06, Isoko South Local Government Council, Delta State the jurisdiction of the Magistrate’s Court of Delta State to hear and determine electoral offences as provided under the Local Government Law CAP D27, Laws of Delta State 2004 has been invoked.
2) Whether the accused persons cannot be validly tried under the provisions of the Corrupt Practices
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& Other Related Offences Act 2000 having regard to the facts and circumstances that Councillorship elections did not hold on the 10th day of May, 2008 in Uzere ward 06, Isoko South Local Government Council, Delta State and yet someone was issued a certificate of return and sworn in.
On behalf of the respondents, the lone issue raised was as following:
Whether or not the lower Court was right, when it set aside the Ruling of G. B. Briki-Okolosi delivered on 21/02/12, on the ground that the trial Court “is devoid of jurisdiction” to try and determine the charge in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law CAP D27, Laws of Delta State, 2006.
The issue raised by the Respondents is in tandem with the Appellant’s first issue which relates to question of jurisdiction.
I seek to state straight away that the fulcrum of the appeal herein centers around the issue of jurisdiction; that is to say, the competence of the lower Court to entertain and determine the information (charge) preferred against the respondents. The issue of jurisdiction is well founded and
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cannot be underrated. It is the foundational life wire of adjudication. No Court can function without jurisdiction. It is a constitutional matter. Several judicial authorities are numerous and trite on this point.
The main issue therefore is:-
Whether the lower Court had jurisdiction to preside over the charge in view of the fact that the alleged offences took place in the course of an election and in view of the provisions of Sections 132 (1)(b) (c) and 129(1) of the Delta State Local Government Law 2004, Cap D27 Laws of Delta State, 2008.
It is submitted by the appellant’s counsel that the lower Court erred in Law and thereby occasioned a miscarriage of justice when it held that the Magistrate’s Court of Delta State has the exclusive jurisdiction under the Local Government Law Cap D27, 2004 to try and determine the case in question. Counsel argues further that the learned Justices of the Court of Appeal totally misconceived the charges brought against the accused persons by the ICPC.
The learned counsel related to Section 132(1) of the Delta State Local Government Law 2004 and submits that the jurisdiction of the said Electoral Tribunal to
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adjudicate on electoral matters flows from an actual election dully conducted; in other words, there must be electoral materials distributed to the various polling booths/units, the octal vote cast by the voters, collation of the vote casts and the declaration of a winner. The learned counsel contends further that unless and until the actual conduct of elections, the jurisdiction of the Tribunal and the Magistrate Court of Delta State cannot be invoked. While drawing attention to paragraph 132(1)(b), the learned counsel argues that something can only be voided if that thing has happened or if it has been that one cannot void that which is not or has not been; that election was never held in Uzere ward 06 of Isoko South Local Government Area of Delta State on the 10th of May, 2008 or at any time before or after. If there was no election, counsel argues, then there will be no basis to invoke the jurisdiction of the Tribunal or that of the Magistrate Court of Delta State.
The onus is on the prosecution, learned counsel submits, to establish during trial that this position was the state of affairs on the 10th day of May, 2008 when the materials that would
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have been used for the conduct of the elections were returned to the Oleh Police Station from where the commission’s operatives recovered them: that there was no such conduct of any Councillorship election on the 10th day of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State as the election never held; that all that happened before and until the morning of the 10th of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State were mere preparations for Councillorship elections which did not hold. In other words, that the condition precedent for the coming into effect of the said Law was never fulfilled. Counsel cites in support the Court of Appeal case of I.N.E.C V. Action Congress (2009) 2 NWLR (Pt 1126) p.524 @ 588 – 589 on what is on election. Further reference was also made to the decision of this Court in the case of Agbakoba V. I.N.E.C & 2 Ors (2008) 12 SC (Pt 111) page 171 @ 205.
It is the contention of the appellant’s counsel that his client’s complaint was not contesting the votes cast, but rather that the election never held. Reference was made also to the reasoning held by his Lordship Niki
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Tobi, JSC (of blessed memory) at page 60 of the case of Odedo V I.N.E.C (2008) 7 5C Page 25.
Counsel submits finally that in the absence of any election held, the jurisdiction of the Elections Petitions Tribunal for that Elections and the Magistrate Courts of Delta State cannot be invoked since a condition precedent for doing so was not fulfilled, the Court, counsel argues should resolve the issue in favour of the appellant.
The learned Respondents’ counsel in response to the foregoing argument by the appellant’s counsel, refuted the very foundation thereof in totality. Counsel argues in support that given the totality of all the allegations as contained in the statements, particulars of offence and the proof of evidence in support of the charge sheet, the Trial Court lacked the jurisdiction to put them to trial. This is because they are all offences allegedly committed during election and which had been appropriately made a ground for petitioning pursuant to Section 132(1)(B) and 129(1) of Delta State Local Government Law of 2004, Cap D27, Laws of Delta State; that all the allegations against the 1st and 2nd Respondents borders on
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irregularities as envisaged in Section 132(1) supra. Counsel submits further that it is in the nature of “Corrupt practice/Irregularity” upon which on election may be questioned. Such allegations, he contends, are quasi-criminal in nature and it is the Tribunal set up under Section 129(1) (supra) that have jurisdiction to adjudicate on the allegations as contained in the charge sheet under reference and not the lower Court.
The learned counsel related to a number of decided authorities in terms of Obi-Odu V. Duke & 2, 339 Ors (2006) 21 WRN P9.113 @ 159; Aikulola V. Akogwu & 2 Ors (2006) 41 WRN p. 29 @ 82 – 83; Obasanjo & 2 Ors V. Yusuf & Anor (2005) 20 WRN P1 @ 49 and Ogboru V. Ibori (2004) 44 WRN Pg 98 @ 118 – 119.
Counsel re-iterates also that it is immaterial that the allegations border on the commission of a crime because none of the facts contained in the proof of evidence directly linked the 1st and 2nd Respondents herein with any of the allegations. Counsel cites further the case of Buhari & Anor V. Obasanjo & Ors (2005) 50 WRN pg 1 @ 188.
The learned Counsel relates copiously to the Criminal Procedure in
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Nigeria, Law and Practice, Chapter 13; that the reliance on Section 61(3) of the ICPC Act, 2000 by the learned trial Judge in this instance is unhelpful as it is inapplicable. The learned counsel urges us to discountenance all the arguments advanced on behalf of the appellant. This is because whether the facts of the charge are pre-election or post election, it still does not fall under the purview of the ICPC Act.
Counsel contends further that the learned trial Judge did not read the depositions of the potential witnesses before dismissing the motion seeking to quash the charge.
It is again submitted by learned counsel that the conduct of the election and the alleged offences of the 1st and 2nd Respondents herein being in respect of the Local Government Election in Delta State are covered by the said Delta State Local Government Law 2004, and not by the ICPC Act.
The main plank of the allegations against the Respondent, counsel re-affirms, is that there was ‘no election’ on the said 10th May, 2008 and that none of the potential witnesses mentioned any of the 1st and 2nd Respondents as being part of the process leading to the non holding of
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the election.
That the appellant’s contention in issue 1 has no support and cannot be sustained therefore.
RESOLUTION OF THE ISSUE
The main plank of the allegations against the Respondents is that there was no election on the said 10th May, 2008. Consequently, that the lower Court erred when it set aside the Ruling of the trial Court delivered on 21/2/12 on the ground that it is devoid of any jurisdiction to try and determine the charge “in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law, Cap D27, Laws of Delta State.”
It is trite and well settled that jurisdiction is at the threshold of the power of the Court to adjudicate over any matter. It is the authority of the Court to exercise judicial power, to take cognizance and decide on matters presented before it. It is an essential factor in the determination of an action and therefore indispensable to the capacity of the Court to exercise judicial authority. See the following authorities in Ajomale V. Yaduat & Anor (No.1) (2003) FWLR (Pt 182), 1902 @ 1910 SC; The Miscellaneous Offences Tribunal and Anor V.
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Okoroafor (2001) FWLR (Pt 81) 1730 @ 1748 SC.
It is also trite that whereby the rules of Court or any other rule whatsoever, the unlimited jurisdiction of the Court is curtailed by statute or the Constitution as to subject matter or cause of action or as to person who can bring the action, such curtailment renders the Court incompetent to adjudicate over a matter which has been taken outside its powers by such statute. Therefore, where a Tribunal or special Court is set up to adjudicate over specialized matters, the powers of the normal Courts created under the Constitution will be ousted in respect of such specialized matters.
The Courts have held overtime that where there is a Tribunal set up as special Court under State Law, to adjudicate over specialized matters, the Power of the State High Court which under the Constitution is vested with jurisdiction to hear and determine any civil and criminal proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, claim or crime is in issue, is ousted. See the case of Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’Adua (2008) 4 – 5 5C
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(Pt 1) page 206 @ 238 wherein this Court, per Onnoghen, JSC (as he then was) held thus:
“It is settled Law that where legislation lays down a procedure for doing a thing there should be no other method of doing it.”
See also the case of C.C.B Plc V. The A-G of Anambra State (1992) 10 SCNJ 137 @ 163, also Buhari V. Yusuf (2003) 6 sc (Pt 11) 156.
The reproduction of two stronghold sections predicating the determination of this issue are Sections 132(1)(b) and (c) also 129(1) of Delta State Local Government Law of 2004, Cap D27, Laws of Delta State are as follows:
Section 132(1) says:-
“An election may be questioned on the following ground:
(b) that the election was voided by Corrupt practices, irregularities or offences against this Law: or
(c) that the respondent was not duly elected by a majority of valid or lawful votes cast at the election: or”
Section 129(1):
“There shall be established in the State at least six and at most nine election Tribunals to be known as Local Government Election Tribunals (in this Law referred to individually as an “Election Tribunal”) which shall to the exclusion of any other
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Tribunal or Court, have original jurisdiction to hear and determine
(a) Election petitions as to whether a person has been validly elected as chairman or councilor of a Local Government Council.” (emphases supplied).
As rightly submitted by the learned counsel representing the respondents, it is clear that from the facts of the Charge as contained in the statement and particulars of offence as well as the proof of evidence in support thereof , all the allegations against the 1st and 2nd Respondents border on irregularities as envisaged in Section 132(1) reproduced (supra). It is all in the nature of “corrupt practice/irregularity” upon which on election may be questioned. Such allegations are quasi-criminal in nature and it is the Tribunal set up under Section 129(1) (supra) that have jurisdiction to adjudicate on the allegations as contained in the charge sheet under reference. Several authorities were cited in support by the learned counsel for the respondents.
The Law is trite and well settled that no litigant can confer jurisdiction on any Court where the Constitution or a statute or any provision of the Common Law says that the Court shall
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have no jurisdiction. See Jikantoro & 6 Ors. V. Dantoro & 5 Ors (2004) 5 SC (Pt 2) page 1 @ 21.
It is in evidence, clearly on the record that the complains relates to the conduct of elections into the Councillorship seat of Uzere Word in Isoko South Local Government of Delta State which held on the 10th of May, 2008 in which the 2nd Respondent was declared the winner.
The petition which formed the basis of the investigation and pursuant to which the charge at the trial Court was filed is at page 19 of the record and it is dated 19th of May, 2008. Reference to the said page is self explanatory wherein the petition relates to:-
“A FRADULENT ACT PERPETRATED BY MR. UTHO DSIEC OFFICIAL.” (SIC)
In summary, the complaint against Mr. Utho alleges that he collected sums of money from “influential individuals”, and it borders on electoral issues/irregularities.
Mr. Bernard Utho the man in the eye of the storm, also made statements at pages 39 – 46 of the record, and which border on electoral malpractice/irregularity which occurred during the conduct of the said election. With reference made to the case of Obasanjo & 2 Ors V. Yusuf
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& Anor (2005) 20 WRN page 1 @ 86 this Court held and said:
“Complaints against the conduct of election can only be found in the Electoral Act, as the Act provides breaches in the conduct of elections. The Electoral Act is a comprehensive Act which deals with the conduct of elections in this country. The Courts are bound to look into the Act in cases of breach in the conduct of elections.”
The Delta State Local Government Law Cap D27, 2004 was enacted pursuant to Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which says:
“7. The system of Local government by democratically elected Local Government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to section of this Constitution, ensure their existence under a law which provides for the establishment structure composition, finance and functions of such councils.”
What is more, under the Second Schedule, Part II (The Concurrent Legislative List) of the 1999 Constitution, it is provided by paragraph 12 thus:-
“Nothing in paragraph 11 hereof shall preclude a House of Assembly from making
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Laws with respect to election to a local government council in addition to but not in consistent with any law made by the National Assembly.”
In the instant case, the Delta State Local Government Law (supra) has by the provision of Sections 107 – 128 thereof, conferred special powers on Magistrate’s Courts in the State to try (Local Government) electoral offences. Consequently, the High Court lacks the jurisdictional competence to try the offences prescribed under Section 107 – 128 of the Law supra.
Undoubtedly, the High Court’s jurisdiction is as regards appeals from the decisions of the trial Magistrate’s Courts in the State. The appellate and supervisory powers of the High Court over and above the Magistrate’s Courts are very well taken.
The Law is well settled that where a particular Court or Tribunal has been specifically conferred with a special power to adjudicate upon a matter or action, as in the instant case, it’s not the business of any other Court or Tribunal which lacks such express power to arrogate to itself the power to entertain such a matter or action. See Enagi V. Inuwa (1992) 3 NWLR (Pt 231) 548 @ 565.
With the criminal
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allegations arising from the conduct of the Local Government Election in question, the provisions of the Local Government Law (supra) pertaining to elections, especially Sections 107 – 128 thereof ought to be strictly applied. See Njo V. Yussuf (2005) 20 WRN 1 @ 86.
Notwithstanding that the information (charge) was filed against the appellant pursuant to the ICPC Act, the Magistrate’s Court of Delta State has the exclusive jurisdiction under the Local Government Law Cap D27 2004 (supra) to try and determine the case in question. See Utih V. Onoyivwe(1991) 1 SC (Pt 1) 61: Obi V. INEC (2007) SC 268 @ 301.
For the purpose of exercising jurisdiction thereof, the Court has an onerous duty to be properly seized of the matter before it. See Madukolu V. Nkemdilim (1962) 1 All NLR 587 @ 594 and Obasanjo V. Yusuf (2005) 20 WRN (Vol 2) 1 wherein this Court said:
Jurisdiction is a very hard matter of law which is donated by the Constitution and the enabling statute. It is also a very sensitive matter in the judicial process. Considering its very hard and sensitive nature, Courts of law must always bow to the provisions of the Constitution and the enabling
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statute. On no account should we remove from a Court which has jurisdiction to hear a matter to another Court which has no jurisdiction to hear it.”
Per Niki Tobi, JSC (of blessed memory) at page 90. The High Court is devoid of jurisdiction to try and determine the instant case in view of the express and unequivocal provisions of the Delta State Local Government Law (supra).
Section 129(1) of the Local Government Law (supra) established the Local Government Electoral Tribunal; while Section 132(1) states the ground upon which an election may be questioned. One of the grounds is as contained in S.132(1)(b) supra. Therefore, complaints against any wrong doings, malpractice or corrupt practice which occurred during the elections held on the 10th of May, 2008 in Uzere Ward can only be heard at the Tribunal established pursuant to Section 129(1) (supra). Again see Obasanjo & Anor V. Yusuf & Anor (2004) 5 SC (pt 1) pg 27 @ 50. Any provision in the ICPC Act which tend to confer jurisdiction on the trial Court contrary to the provision of the Constitution is null and void and of no effect whatsoever; as rightly submitted by the learned counsel
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for the respondents.
The said issue is resolved in the positive and against the appellant herein. In other words, the lower Court was right when it set aside the Ruling by G. B. Briki – Okolosi, delivered on 21/2/12 on the ground that “the Trial Court is devoid of jurisdiction” to try and determine the charge in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law, Cap D27, Laws of Delta State.
The appeal is dismissed on the totality while the judgment of the lower Court delivered on the 11th Day of December, 2013 is affirmed by me.
SC.178/2014
