Madam Roseline Okpanachi Ejura V. Ibrahim Idris & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

The plaintiff (now appellant) sued the defendants (now respondents) on an originating summons filed on the 26th of May 2003 in the Federal High Court Abuja.

The following questions were presented for determination:

“1. Whether having regard to the information supplied to the 2nd defendant in its FORM CR001, the 1st defendant told a lie when he stated in part 1 paragraph B(3) thereof that he has never attended any tertiary institution (including universities and colleges) whereas he is currently a part four (4) to five (5) Law Student of the University of Abuja.

2. Whether having regard to the information supplied to the 2nd defendant in its FORM CF001, when he stated in part 1 paragraph C thereof that he obtained a Senior Secondary School Certificate (SSCE) in 2001, having regard to the fact that he is currently a Part 4 to 5 Law Student of the University of Abuja, what ordinary level result could the 1st defendant have used to gain admission into the said university prior to 2001. The 1st defendant gained admission to the said university with fake ordinary level result.
3. If the answer or answers to any of all the questions are in the affirmative, whether this Honourable Court should not issue an order pursuant to Section 21(5) of the Electoral Act, 2002 directing the 1st defendant to vacate office as the Governor of Kogi State, having already been elected.”

The plaintiff prayed for the following reliefs:

“a. A declaration that the information supplied by the 1st defendant to the 2nd defendant as contained in Part 1, paragraph B(3) of the 2nd FORM CF001 with regard to his having never attended any tertiary institution is false.

b. A declaration that the information supplied by the 1st defendant to the 2nd defendant as contained in Part 1 paragraph C of the 2nd defendant’s FORM CF001 with regard to his having obtained a Senior Secondary School Certificate (SSCE) in 2001, raises doubt as to the genuine nature of the ordinary level result used to gain admission to the University of Abuja prior to 2001.

c. An order of the court nullifying the election of the 1st defendant as Governor of Kogi State on account of the grounds above mentioned, or if already sworn in, directing him to vacate office.

d. A perpetual order of injunction restraining the 1st defendant from parading himself as the Governor-elect of Kogi State.”

On being served with the originating summons the 1st and 3rd defendants filed preliminary objections on very similar grounds to wit:

1. An order dismissing or striking out the suit as same is manifestly incompetent.
2. Any order or orders the Honourable Court may deem fit to make in the circumstances.

Arguments were concluded on the 24th of July, 2003, and in a considered ruling delivered on the 26th of July 2003 the Hon. Justice B.F.M. Nyako dismissed the case.

The concluding part of the ruling reads as follows:

“By the authority of the 7-Up Company case supra, it would have been enough to only decide on any of the issues of due process or immunity which I find combine to oust the jurisdiction of this court to hear this suit. For all the above reasons, I find that this case is incompetent and the court thus lacks the jurisdiction to entertain same and the preliminary objection is upheld and the case is accordingly dismissed.”

As the appellant was not satisfied with the ruling dismissing her case she appealed to this court. Pursuant thereto the appellant has filed three grounds of appeal against the ruling of the court below.

In accordance with the rules of this court briefs of argument were filed, served and exchanged by the parties.

The brief filed for the 1st respondent included a preliminary objection to the hearing of the appeal, the 1st respondent’s notice and also the 1st respondent’s arguments in response to that of the appellant.

The appellant was served with the 1st respondent’s brief but did not respond or file a reply brief.

At the hearing on the 20th of October 2005 learned counsel for the 1st respondent, Mr. P.A. Akubo, SAN invoked the provisions of Order 6 rule 9(5) of the Court of Appeal Rules and urged us to deem the appeal as duly heard and dismiss it.

The 2nd respondent did not file a brief and was not represented in court.

Learned counsel for the 3rd respondent, MR. O. Elekwa urged us to deem the appeal as argued and dismiss it.

Order 6 rule 9(5) of the Court of Appeal Rules provides that if on the day the appeal is fixed for hearing neither any party or any legal practitioner appearing for him does not appear to present oral argument, and due notice of hearing was given and briefs filed, the appeal would be treated as having been duly argued.

In the absence of the appellant and her counsel we treated the appeal as duly argued.

The appellant formulated three issues for the consideration of this court in her preliminary objection. They are:

“1. Whether the notice of appeal in this case dated the 23rd day of October, 2003 and filed/signed by the Emma Dibia & CO. is competent in law.

2. Whether grounds 1 and 2 in the notice of appeal are competent in law having not directly arisen from the ruling of the lower court.
3. Whether ground 3 of the grounds of appeal upon which no issue has been formulated for determination is not deemed abandoned by the appellant.”

Now, Order 3 rule 15(1) of the Court of Appeal Rules provides for notice of preliminary objection. It states that:

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”

Where no notice was served on the appellant the preliminary objection is incompetent and should not be considered in the determination of the appeal. See:

Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt. 539) p. 618; Kenlink Holdings Ltd. v. Realistic Equity Investment Ltd. (1997) 11 NWLR (Pt. 529) p. 438.

Notice, though would not be necessary where the preliminary objection touches on the competence and jurisdiction of the court to hear the appeal. See:

Majekodunmi v. WAPCO Ltd. (1992) 1 NWLR (Pt.219) p. 564; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) p. 314; Margoro v. Carba (1999) 10 NWLR (Pt. 624) p. 555.

My lords, a diligent search in my file and the court’s master file reveals that learned counsel for the 1st respondent failed to comply with the clear provisions of Order 3 rule 15(1) of the Court of Appeal Rules.

No Notice of the Preliminary objection was ever served on the appellant.

I earlier on alluded to the fact that a formal notice of preliminary objection would be unnecessary where the issues touch on the competence and jurisdiction of the court to bear and determine the appeal. A close scrutiny of the three issues reveals they contain nothing to question the competence or jurisdiction of this court to entertain the appeal.

In the circumstances the court would no longer bother with the preliminary objection. It is accordingly dismissed.

The appellant filed three grounds of appeal, and they are:

“1. The learned Judge erred in law when he ruled striking out the action on the ground that originating summons was an inappropriate method to commence the action.

2. The learned Judge erred in law when he held that Section 308 of the Constitution onsts the jurisdiction of the court to hear and determine the suit.
3. The learned trial Judge erred in law by entertaining and determining the suit in favour of the respondents by way of preliminary objection and in lieu of demurer.”

Two issues are formulated for determination:

“1. Whether the commencement of this action by an originating summons was inappropriate in the circumstances to warrant outright dismissal and that at best the court would have directed that the suit be brought under writ of summons.

2. Given the nature of the plaintiff’s action whether section 308 of the Constitution ousts the court’s jurisdiction to hear and determine the action.”

After examining the grounds and the issues formulated, it becomes clear that no issue was formulated from ground 3.

The position of the law is that where no issue is formulated from a ground of appeal and no argument on the ground was made out in the brief of argument the court is enjoined to treat such a ground as abandoned and strike it out. Ground three is hereby struck out since no issue was formulated from it. See:

Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) p. 523; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) p. 364.

Grounds 1 and 2 are competent and two issues were formulated for determination from them. They can be argued as they are competent.

See: Akulege v. Benue State Civil Service Commission (2001) 12 NWLR (Pt. 728) p. 524.

In his own brief learned counsel for the 1st respondent reframed the two issues formulated by the appellant thus:

“1. Whether the commencement of this case by the appellant vide originating summons was proper and competent having regard to the entire circumstances.

2. Whether the lower court had the jurisdiction to entertain the case having regard to the provisions of section 308 of the Constitution.”

Learned counsel for the 3rd respondent formulated three issues for determination, and they are:

“1. Whether the court below has the jurisdiction to make any order nullifying the election of an elected Governor of a State.

2. Having regard to the reliefs on the appellant’s originating summons, whether the suit does not belong to a specie of action called Election Petition.
3. Whether the provisions of section 21(5) of the Electoral Act 2002 is not inconsistent with section 285 of the Constitution.”

At this stage it is important I state the facts.

The 1st respondent is a member of the 3rd respondent (The Peoples Democratic Party). He is the current Governor of Kogi State. He won the Gubernatorial election conducted by the 2nd respondent on 19/4/03. He was declared winner on 21/4/03. Thereafter be was sworn in as the Governor of Kogi State, and has been in office ever since.

On 26/5/03 the appellant as plaintiff took out an originating summons against the three respondents. The thrust of the suit was that the 1st respondent supplied false information on INEC FORM CF001 and so his election ought to be nullified, and an injunction be pronounced restraining him from further parading himself as the Governor of Kogi State.

I now turn to the submissions of counsel.

On Issue No. 1.

Learned counsel for the appellant observed that the trial Judge was wrong to dismiss the suit on mere irregularity contending that Her lordship ought to have directed that the suit be commenced by writ of summons. Reliance was placed on Araka v. Ejeugwu (1999) 2 NWLR (Pt. 589) p.107; Nalsa and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) p.652. He urged us to resolve this issue in favour of the appellant.

Learned counsel for the 1st respondent was of the view that initiating the suit by originating summons was not a mere irregularity or technicality that can be regularized. He submitted that it was a fundamental blunder which impugned on the competence of the Court.

Relying on Egbarin v. Aghoghovbia (2003) 16 NWLR (Pt. 846) p. 380; Famfa Oil Ltd. v. A-G Federation (2003) 18 NWLR (Pt. 852) p. 453. He urged us to resolve the issue against the appellant.

Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such dispute e.g. where the issue is to determine questions of construction. The main advantage of the procedure by originating summons is the emphasis on simplicity resulting from the elimination of pleadings. See:

Doherty v. Doherty (1967) 1 All NLR P. 245;

Osuagwu v. Emezie (1998) 12 NWLR (Pt. 579) p. 640;

Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) p. 443.

Where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances.

My lords, the appellant seeks the removal of an elected Governor on the ground that forms filled by him for the Gubernatorial election contained false information.

Surely, the appellant never expected the 1st respondent to agree, or concede all the damaging facts to his person in the affidavit in support. A look at the questions for determination on the face of the originating summons, the reliefs sought, and the affidavit in support show beyond doubt that if trial proceeded at the court below it would have been hostile proceedings which would involve contentious issues and questions of fact which can only be resolved by oral evidence from the parties and their witnesses.

When the court finds an originating summons to be inappropriate it ought to order the parties to file pleadings and come by way of writ of summons and not dismiss the suit.

In this case the suit was not dismissed because it was brought by an inappropriate originating process, but because of the clear provisions of Section 308 of the Constitution which provides for an absolute bar to civil and criminal suits against Governors while in office. Suits where the provisions of Section 308 of the Constitution applies are to be struck out, but not dismissed. See:

I.C.S. (Nig.) Ltd. v. Balton B.V. (2003) 8 NWLR (Pt. 822) p. 223.

Issue No. 2 and the three issues formulated for determination by the 3rd respondent would be taken together as they are allied.

For consideration are the provisions of Sections 21, 131 of the Electoral Act 2002 and sections 285 and 308 of the Constitution.

Learned counsel for the appellant observed that the case is not one that the 1st respondent enjoys immunity from proceedings as provided by section 308 of the Constitution.

Relying on Dalhatu v. Turaki (2003) vol. 38 WRN p. 54; (2003) 15 NWLR (Pt.843) 310; Unongo v. Aku & Ors. (1983) 2 SCNLR p. 332.

He submitted that the immunity of the 1st respondent does not cover election matters, urging us to resolve the issue in favour of the appellant.

Learned counsel for the 1st respondent argued that the provisions of Section 308 of the Constitution ousts the jurisdiction of the court to try the 1st respondent because as at 23/6/03 when arguments in the suit commenced in the lower court the 1st respondent was already the Governor of Kogi State. Relying on:

I.C.S. (Nig.) Ltd. v. Balton B.V. (2003) 8 NWLR (Pt. 822) p. 223; Tinubu v. I.M.B. Securities Plc. CA/L/229/94 decided on 29/1/2001 he submitted that the 1st respondent had absolute immunity from suits by virtue of the provisions of Section 308 of the Constitution.

Learned counsel for the 3rd respondent observed that filing this suit before the Federal High Court, seeking the removal of the 1st respondent is incompetent since the Federal High Court has no jurisdiction to hear such a suit. Reference was made to Section 131 of the Electoral Act, and Section 285 of the Constitution.

Concluding his submissions he submitted that Section 21(5) of the Electoral Act 2002 is null and void to the extent of its inconsistency with the Constitution. Reliance was placed on:

A.-G. Abia State & Ors. v. A.-G. Federation (2002) 9 NSC QR p. 670; (2002) 6 NWLR (Pt.763) 264.

Learned counsel for the appellant relied on the following cases to support his argument:

Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) p. 310; Unongo v. Aku & Ors. (1983) 2 SCNLR p. 332.

The Dalhatu case is authority for the position of the law that a court has no jurisdiction to nominate a candidate for a political party or to compel a political party to nominate or sponsor a political candidate.

This decision followed the earlier decision of the Supreme Court in Onuoha v. Okafor (1983) 2 SCNLR p. 244 while in the Unongo case the Supreme Court held that the 30 days period for the hearing of election petitions was unconstitutional as it was contrary to sections 49(8) and 33(1) of the 1979 Constitution. The Supreme Court allowed the appeal and ordered a trial on the merits.

Both cases are of no relevance to the issue under consideration.

The issue being whether a Governor can be removed from office in a civil Suit.

I shall now consider the provisions of sections 285(2) of the Constitution and sections 131 and 21(5) of the Electoral Act 2002.

Section 285(2) of the Constitution states that:

“There shall be established in each State of the Federation One or more Election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a Member of any Legislative house.”

AND

Section 131 of the Electoral Act 2002 states that:

“No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an election petition) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and of which the person elected or returned is joined as a party.”

These provisions to my mind are clear.

The only venue in which election petitions are heard at first instance is before an Election Tribunal, and the only way to question the election/return is by petition complaining of an undue election or undue return.

My Lords, the complaint of the appellant could only have succeeded in a High Court if filed and heard before the 1st respondent was elected Governor of Kogi State. Since this case was instituted in the Federal High Court after the 1st respondent had been duly elected Governor, the Federal High Court had no jurisdiction to hear the case. Furthermore the suit ought to have been by petition before an Election Tribunal. Since it was not by petition and was not filed before an Election Tribunal the trial Judge was right to have thrown out the suit.

Section 21(5) of the Electoral Act states that:

“If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election and if already elected the court shall issue an order against the person to vacate the office and the next person with the highest number of votes shall be declared duly elected.”

There are two arms to the above. They are –

(a) disqualifying a candidate from contesting

(b) after the candidate has been elected making an order that he vacate office.

The 2nd limb of Section 21(5) can only be achieved before an election petition Tribunal and not a regular court.

In this matter the suit was commenced by originating summons filed before the Federal High Court seeking in the main the removal of a validly elected Governor. This is a civil proceedings within the contemplation of section 308 of the Constitution.

Section 308 of the Constitution ensures that there is an absolute prohibition on the courts from entertaining civil and criminal proceedings in respect of any claim or relief against the following persons:

(a) President;

(b) Vice President

(c) Governor

(d) Deputy governor

Proceedings are held in abeyance until the person concerned vacates office, thereafter proceedings can commence. Where the election of any of these persons are questioned in an Election Tribunal the provisions of section 308 of the Constitution no longer applies. The provisions of section 21(5) of the Electoral Act 2002 can only operate to remove an elected Governor if the said provisions are invoked before an election Tribunal.

The 1st respondent, the Governor of Kogi State can only be removed by a successful petition heard by an Election Petition Tribunal.

Where, as in the instant case the appellant sought to remove the Governor, by an originating summons filed before the Federal High Court, the provisions of section 308 of the Constitution protects the Governor from such a civil proceeding notwithstanding the provisions of section 21(5) of the Electoral Act. The trial Judge was right to decline jurisdiction in the light of the clear provisions of section 308 of the Constitution.

Respondent’s Notice

Nowadays we hear counsel say that the respondent ought to have filed a cross appeal instead of a respondent’s notice or vice versa. It is important I explain both processes in some detail.

A respondent’s notice is provided for by Order 3 rule 14 of the Court of Appeal Rules 2002. Before it is entertained, leave must first be obtained and service effected on the appellant.

When a respondent agrees with the judgment appealed against but at the same time, he wants the judgment varied or affirmed on other grounds he is duty bound to file a respondent’s notice. See-

Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) p. 517.

It is not an opportunity to introduce a fresh case. The respondent is bound by the reliefs he sought at trial.

On the other hand an appeal filed by a respondent is a cross appeal and it is filed to correct an error, which if left to remain would be of a disadvantage to the respondent in the main appeal, See-

Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) p. 47.

It is also filed in situations where the respondent seeks a reversal of the decision of the trial Court. See New Nigeria Bank Plc. v. Egun (2001) 7 NWLR (Pt. 711) p. 1.

Finally, a respondent’s notice and a cross appeal cannot co-exist. See Anyaduba v. N.R.T.C. Ltd. (1990) 1 NWLR (Pt. 127) p. 397.

My lords, the 1st respondent was right to file a respondent’s notice since he seeks to have the judgment affirmed on grounds other than these relied upon by the lower court.

On 17/5/04 we granted the 1st respondent leave to file a respondent’s notice. The notice subsequently filed was included in the 1st respondent’s brief of argument filed on 28/5/04.

The respondent’s notice is premised on four grounds, and they are:

1. The case of the appellant was incompetent and/or statute barred being a pre-action matter but filed 26/5/03 after the election had been conducted.
2. The further and better affidavit belatedly filed on 23/7/03 by the appellant without leave of court after argument had commenced is invalid and incapable of regularizing the originating summons.
3. The plaintiff/appellant lacks the locus standi to institute or maintain the action.
4. The plaintiff/appellant is a fictitious non-existent personality and therefore incompetent to maintain the action.

On ground 1, learned counsel for the 1st respondent observed that the suit filed by the appellant at the lower court was time barred since it was not filed before the date of the election, the 19th of April 2003. Reliance was placed on Egbe v. Adefarasin (1987) 1 SCNJ p. 1; (1987) 1 NWLR (Pt.47) 1.

Section 21 of the Electoral Act 2002.

Limitation periods provided in Legislation are very important. They protect a defendant from the injustice of having to face a stale claim. For example, if a claim is brought a long time after the events in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded. A party would not be allowed to take advantage of the Limitation Law where there is clear evidence of disability, mistake, fraud and in certain cases involving personal injury, death.

See: Arowolo v. Ifabiyi (1995) 8 NWLR (Pt. 414) p. 496; Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) p. 267.

Section 21(1) to (9) of the Electoral Act 2002 provides for the submission of lists of candidates and their affidavits by Political Parties. A candidate for an election shall depose to an affidavit indicating that he has fulfilled all the Constitutional requirements for election to the office he seeks to be elected into.

Subsections 4 and 5 of Section 21 supra state that-

“(4) Any, person who has reasonable ground to believe that any information given by a candidate in the affidavit is false may petition the Commission or file a suit at the High Court against such person seeking a declaration that the information contained in the affidavit is false.

(5) If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election and if already elected the court shall issue an order against the person to vacate the office and the next person with the highest number of votes shall be declared duly elected.”

Indeed subsection 8 makes provision for a disqualified candidate to challenge the decision of the Commission. Subsection 9 limits the time within which to bring such an action. It reads:

“(9) Any legal action challenging the decision of the Commission shall commence within five working days and be disposed of not later than one week before the election.”

My lords, subsection 9 of section 21 of the Electoral Act 2002 is a mandatory statutory provision directing that a disqualified candidate can challenge his disqualification and such challenge by way of legal action must be disposed of by the Commission or Court not later than one week before the election.

After a close scrutiny of all the subsections of section 21 of the Electoral Act 2002 the clear intention of the Legislature is that anyone invoking the said provisions must do so while the candidate is still a candidate and not after the election. Petitions must predate the election as the section supra provides for pre election matter.

In this case the candidate (the 1st respondent) was elected Governor of Kogi State on 21/4/03 in an election conducted on 19/4/03, while this action was filed in the Federal High Court on 26/5/03. The case of the appellant is statute barred since it was filed after the election had been conducted. Section 21(5) of the Electoral Act is not in conflict with any section of the Constitution.

The issue of the further and better affidavit belatedly filed on 23/7/03 without leave of court is a procedural irregularity and a judgment cannot be varied on such a point.

The locus standi of the plaintiff/appellant.

The rule about locus standi developed as a result of the urgent need to protect courts of law from being used as a playground by professional litigants who have no real stake or interest in the suit they wish to pursue.

The case of: Senator Adesanya v. The President of Nigeria (1981) 5 SC p. 112, (1981) 2 NCLR 358 lays down the rule for locus standi in civil cases while Fawehinmi v. Akilu (1987) 18 NSCC (Pt. 2) p. 1269, (1987) 1 NWLR (Pt.51) 544 lays down the far more liberal rule for locus standi in criminal cases.

My lords, the well settled procedure is that where the capacity of the plaintiff becomes an issue the burden is on the plaintiff to prove his legal capacity and this can only be done by leading oral or documentary evidence.

It is clear from the records of appeal, particularly the hearing and ruling of the lower court that no opportunity was given to the plaintiff/appellant to show if she is a juristic person. In the absence of an opportunity being given to the appellant no finding can be made in the light of all that I have been saying the judgment is affirmed on the ground of the suit being statute barred as argued in the 1st respondent’s notice.

This appeal fails as a result of the clear provisions of section 308 of the Constitution. The judgment is also affirmed on the ground of the suit being statute barred.

Costs are assessed at N5,000 each, in favour of the 1st and 3rd respondents.

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Other Citations: (2006)LCN/2072(CA)