Mr. Peter Obi V. Independent National Electoral Commission (Inec) & Ors (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the decision of the Federal High Court, Enugu Division as contained in the judgment of Faji, J. delivered on 30th March, 2007. The learned trial judge held that he had no jurisdiction to adjudicate on the Originating Summons filed by the Appellant. After declining jurisdiction, the learned trial judge proceeded to dismiss the application initiated by the Appellant pursuant to section 295(2) of the 1999 Constitution seeking reference of certain questions to the Court of Appeal.
In view of the findings of the learned trial judge on the issue of jurisdiction as stated above, the matter was struck out.
For a proper appraisal of the issues canvassed in this appeal, it is apt to recapitulate, albeit briefly, the facts which are relevant and of moment. Vide the Originating Summons dated and filed on 12th February, 2007 the Appellant prayed the Lower Court for the determination of the following questions:-
“1. Whether having regard to section 180(2) (a) of the 1999 Constitution the tenure of office of a Governor first elected as Governor begins to run when he took the Oath of Allegiance and Oath of Office.
- Whether the Federal Government of Nigeria through the Defendant being its agent can conduct any Governorship election in Anambra State in 2007 when the incumbent Governor took Oath of Allegiance and Oath of Office on 17th March, 2006 and has not served his four year tenure as provided under section 180(2)(a) of the 1999 Constitution.”
The appellant prayed the Federal High Court for the following orders, to wit:-
“1. A declaration that the four year tenure of office of the plaintiff as the Governor of Anambra State
began to run from the date he took the Oath of Allegiance and Oath of Office being the 17th day of March, 2006.
- A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any Governorship Election in Anambra State in 2007 in so far as the plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took the Oath of Allegiance and Oath of Office on 17th March, 2006.
- Injunction restraining the Defendants by themselves, their agents, Servants, assigns and privies or howsoever from in anyway conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Plaintiffs tenure of office will expire.”
The Originating Summons was supported by an affidavit of 15 paragraphs. The appellant contended that following the Governorship election on 19th April, 2003 one Dr. Chris Ngige was wrongfully declared the winner by the 1st Respondent (INEC). The appellant herein felt dissatisfied and filed a petition at the election Petition Tribunal which set aside the declaration made by INEC and held that it was the appellant who secured the majority of lawful votes cast at the election. Dr. Chris Ngige lodged an appeal in this Court. The decision of the Election Tribunal was sustained. The appellant was thereafter sworn in as the Governor of Anambra State by the Chief Judge of the State on 17th March, 2006. The certified true copy of the Oath of Allegiance and Oath of Office sworn to by the appellant at Awka on 17th March, 2006 came in via a further affidavit and marked Exhibit A.
The original sole defendant, now, 1st respondent herein, filed a Memorandum of Conditional Appearance which was accompanied by a Notice of Preliminary Objection and also filed a counter-affidavit to oppose the Originating Summons. The appellant, vide a motion on notice dated 28th February, 2007 prayed the lower court to refer certain questions to the Court of Appeal vide section 295(2) of the 1999 Constitution. During the course of hearing, the 2nd-8th respondents were, upon application, joined as defendants at the lower court.
The learned trial judge was ably addressed by counsel to the appellant and 1st-7th Respondents. The 8th respondent also put in some comments in opposition to the Originating Summons.
The learned trial judge, in his reserved and considered ruling handed out on 30th March 2007, found that he had no jurisdiction to adjudicate on the Originating Summons filed by the appellant. He proceeded to consider the application for reference of certain formulated questions for answers by this Court. He dismissed the application for reference filed pursuant to section 295(2) of the 1999 Constitution. In view of the learned trial judge’s standpoint on issue of jurisdiction, the matter was struck out.
The appellant felt unhappy with the stance of the learned trial judge.
A Notice of Appeal dated 3rd April, 2007 was filed on the same date at the Lower Court’s Registry. A second Notice of Appeal dated 18-4-07 was filed in this Court on the same date on behalf of the appellant. The latter Notice of Appeal relied upon by the appellant carries four (4) grounds of appeal.
He decided to abandon, as of right, his initial Notice of Appeal filed on 3rd April, 2007.
The reliefs sought by the appellant appear legion but it is desirable to set them out as follows:
“(i) To set aside the decision of the learned trial judge to the effect that the Federal High Court had no jurisdiction to entertain the Originating Summons.
(ii) To hold that the Federal High Court had jurisdiction to entertain the Plaintiffs/Appellant’s suit.
(iii) Upon the grant of prayers (i) & (ii) to invoke the powers of the Court of Appeal under section 16 of the Court of Appeal Act and to assume jurisdiction to adjudicate on the originating Summons.
(iv) Upon relief (iii) above being granted to answer the questions for determination in the Originating Summons and to grant appellant’s prayers in the Originating Summons in the following manner –
(v) Declaration that the four year tenure of office of the Appellant as Governor of Anambra State began to run from the date he took his Oath of Allegiance and Oath of Office being 17th day of March, 2006.
(vi) Declaration that the Federal Government through the respondent being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the Appellant as the incumbent Governor has not served his four year term of office commencing from when he took the Oath of Allegiance and Oath of office on 17th March, 2006.
(vii) Injunction restraining the 1st Respondent by themselves, their agent, servants, assigns and privies or howsoever from in any way conducting any regular election for the Governorship of Anambra State until the expiration of a period of 4 (four) years from the 17th day of March, 2006 when the Appellant’s tenure of office will expire.
(viii) As a consequential order, to declare null and void any steps taken, by the Independent National Electoral Commission (NEC) with respect to the conduct of an election in violation of the appellant’s vested rights under section 180(2)(a) of the 1999 Constitution.”
On 9th of May, 2007 when the appeal was slated for hearing, applications to regularize the brief of argument of the 1st respondent as well as the joint brief of argument of the 4th & 5th respondents were moved and granted accordingly. The 8th respondent filed a Notice of Intention to withdraw all his processes filed in the appeal. The court struck out his brief of argument and other processes filed by him in tandem with his desire. The appellant, on 9-5-07, filed three reply briefs in reaction to the briefs of argument filed on behalf of the 1st respondent, 2nd/3rd respondents’ brief of argument as well as 6th/7th respondents’ brief of argument, respectively.
Thereafter, learned senior counsel for the 1st Respondent observed that a Notice of Preliminary Objection was filed on 4th May, 2007. In a rather frontal manner, the preliminary objection relates to the propriety or otherwise of ground 4 of the grounds of appeal and the issue formulated there from which relates to consideration of the originating summons.
The senior counsel strenuously canvassed the preliminary objection and urged the court to strike out ground 4 0f the grounds of appeal and the issue decoded therefrom.
I. Udenze Esq., learned counsel for the 4th and 5th respondents, who also filed a similar preliminary objection early on 9-5-07, aligned himself with the arguments canvassed by the senior counsel for the 1st respondent.
In the same fashion, learned counsel for the 2nd respondent, 3rd respondent and 6th respondents aligned themselves with the 1st respondent.
Dr. O. Ikpeaze SAN referred to the reply brief filed on behalf of the appellant to the 1st respondent’s brief early on 9-5-07. He countered the submissions advanced by Chief A. I. Idigbe SAN, senior counsel for the 1st respondent and urged us to dismiss the preliminary objection.
The court thereafter gave the signal that our view on the preliminary objection will be reflected in our judgment. I shall make my standpoint on the preliminary objection known anon.
The hearing of the appeal proper thereafter commenced. The senior counsel for the appellant adopted all the four briefs filed by the appellant and urged the court to allow the appeal and grant the reliefs sought in the Notice of Appeal filed on 18-4-07.
In turns, each of the five (5) counsel who appeared for the 1st-7th respondents adopted the brief of argument filed by each of them and urged the court to dismiss the appeal. The 1st respondent chickened out of the hearing of the appeal, it seems.
On behalf of the appellant, four issues formulated for determination of the appeal read as follows:
“i. Whether the learned trial judge was correct when, in declining jurisdiction to adjudicate on the appellant’s Originating Summons, he held that the determination of the commencement of the appellant’s tenure of office ought to have been raised as an ancillary matter at the Election Tribunal and in the resultant appeal from the judgment of the said Tribunal.
ii. Whether the learned trial judge was correct when he declined jurisdiction and held that the prayers in the appellant’s Originating summons were matters within the jurisdiction of the Election Tribunal relying on the decision of the Supreme Court in ANPP v. Returning Officer Abia State S.C. 78/2005 delivered on 22nd February, 2007.
iii. Whether the learned trial judge was right in refusing either to refer the questions framed, or to formulate questions for reference to the Court of Appeal.
iv. Whether the appellant who is the Governor of Anambra State shall hold office for four years from the date he took the Oath of Allegiance and Oath of Office having regard to sections 180(2)(a) and 185 of the 1999 Constitution of the Federal Republic of Nigeria.”
On behalf of the 1st Respondent, the following three issues were formulated with respect to the preliminary objection challenging the competence of ground 4 of the grounds of appeal and issue 4 distilled therefrom:
“A. Whether the 1st Respondent’s preliminary objection ought not, to be upheld and the ground and issues on consideration of the Originating Summon not canvassed in the court below struck out.
B. Whether this is an appropriate case for exercise of jurisdiction of the Court of Appeal to hear the Originating Summons under the provisions of S.16 of the Court of appeal Act.
C. Whether this Honourable Court is seized with original jurisdiction to grant reliefs (iv) to (viii) of the Notice of Appeal.” Learned senior counsel for the 1st respondent maintained that if the court is inclined to find that all the grounds in the Notice of Appeal are valid, the issues for consideration arising therefrom are as follows:
“a) Whether the learned judge was correct to decline jurisdiction over the subject matter of the Plaintiff/Appellant’s Originating Summons and in particular:
i. Whether the subject matter in the Appellant’s claim did not border on tenure of office for which the 1999 Constitution of the Federal Republic of Nigeria (hereafter the Constitution or CFRN), Cap C23, Laws of the Federation of Nigeria, 2004 has exclusively vested special jurisdiction on a specialized court, to wit Election Tribunal by virtue of sections 285(2) and 184. 11. Whether the lower court was correct in following judicial precedents of the Supreme Court with respect to the ouster of the court’s jurisdiction bordering on electoral and tenure matters provided for in sections 285 and 184 of the 1999 Constitution, having regard to the subject matter disclosed by the Appellant’s Originating Process.
iii. Whether the lower court was right in holding that persons such as the appellant are expected to pursue their case fully and not engage in piecemeal litigation in accordance with Public Policy that litigation must come to an end.
(b) Whether the lower court was right in holding that the matters sought to be referred to the Higher
Court were not proper subjects for reference in view of the recent Supreme Court case of Alhaji Atiku Abubakar v. Attorney General of the Federation (2007) 3 NWLR CPT. 1022) p. 601 and a host of other cases on the issue of constitutional reference.
c) Whether, if and only if, the 1st respondent’s preliminary objection is not upheld, the reliefs sought in the Originating Summons of the appellant ought to be granted having regard to the clear provisions, framework and intendment of the 1999 Constitution.”
The two issues formulated on behalf of the 2nd respondent for an adequate determination of the appeal read as follows:
“1. Whether the Federal High Court, Enugu had jurisdiction to adjudicate on the Appellant’s originating summons.
- Whether the learned trial court was right in refusing either to refer the questions framed or to formulate questions for reference to the Court of Appeal.”
The issues formulated on behalf of the 3rd respondent as well as those formulated on behalf of the 4th/5th respondents have the same tune as those of the 2nd respondent as reproduced above. I need not set them out. On their own part, the 6th/7th respondents adopted the appellant’s issues for determination as earlier on reproduced in this judgment.
I now desire to consider the preliminary objection raised to ground iv of the grounds of appeal and issue iv distilled therefrom.In support of the preliminary objection, the senior counsel for the 1st respondent referred to Order 3 Rule 2 of the Court of Appeal Rules, 2002.
He observed that appeals are required to be heard by way of rehearing. He submitted that grounds of appeal are premised upon the issues joined and argued by the parties at the lower court and upon which the lower court reached a decision. He maintained that in this case, the court below based its decision on pending preliminary objections in respect of its jurisdiction and arguments over whether the subject matter of the suit was one suitable for reference to this court. He submitted that only the interlocutory applications and not the claim in the appellant’s Originating Summons are for this court to decide and that there is no matter to be reheard before the Court of Appeal with respect to the merit of the Appellant’s case. He referred to Basil v. Fajebe (2001) 4 S.C. (Pt. II) 19.
Learned senior counsel maintained that the appellant cannot raise a fresh point on appeal without the leave of the court below or this court. He cited Lebile v. Reg. Trustees C & S (2003) 2 NWLR (Pt. 804) 399 at 422.
Learned senior counsel further submitted that the appellant having failed to obtain leave of court, he is not entitled to be heard on the new point as such an issue is incompetent. He cited Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598 at 612; Godwin v. CAC (1998) 14 NWLR (Pt. 584) 162 at 174. Senior counsel, on the point, urged that ground iv of the grounds of appeal and issue iv formulated therefrom touching on issues raised by the appellant in the substantive case be struck out. He observed that they were not matters canvassed by the parties in the lower court; nor did that court decide on those issues. He felt that reliefs (iii) to (viii) in the Notice of Appeal are incompetent as they flow from ground iv and issue iv as formulated by the appellant and are essentially the reliefs prayed for by the appellant in his Originating Summons.
In reply, learned senior counsel for the appellant maintained that the provision in Order 3 Rule 2 of the Court of Appeal Rules, 2002, being a rule of court, cannot override the provisions of a statute, namely section 16 of the Court of Appeal Act which applies both in interlocutory applications and in the main claim. He felt that section 16 applies with respect to the merit of the appellant’s case. He cited Adeleke v. O.S.H.A. (2006) NWLR (Pt. 1006) 608 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Ekpa v.Utong (1991) 6 NWLR (Pt. 197) 258 at 275; A.G. Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 572 at 578. Senior counsel submitted that in determining the preliminary objection, the trial court could have looked at the substantive issue in the alternative since it had sufficient materials placed before it.
It is clear that Order 3 Rule 2 of the Court of Appeal Rules, 2002 provides that appeals are required to be heard by way of a rehearing. And rehearing can only be with respect to issues thrashed at the lower court.
The issues considered at the lower court relate principally to the jurisdiction of the trial court and in a slight manner, the propriety or otherwise of referring certain questions to this Court for answers pursuant to section 295(2) of the 1999 Constitution. The lower court did not get to the stage of considering the merit of the appellant’s case. It occurs to me that if the appellant desired to raise a fresh point of law, he should have sought leave from the lower court or this court. That was not done. The case of Lebile v. Registered Trustees C & S (supra) at p. 422 cited by the senior counsel for the respondent is of moment.
At this point, it is pertinent to reproduce ground iv of the grounds of appeal without its particulars. It reads as follows:
GROUND IV – ERROR IN LAW
The learned trial judge who had jurisdiction to entertain the Originating summons erred in law in not determining the merits of the Originating Summons after dismissing the application for reference. ”
I am of the considered view that the appellant, in framing the above reproduced ground, as he did, was wrong. I say so because the learned trial judge found that he had no jurisdiction. The complaint should relate to the fact that the learned trial court declined jurisdiction. The appellant needs to establish that the learned trial judge had jurisdiction to entertain his Originating Summons. It is only then that he can complain that the learned trial judge erred in not determining the merits of his case. In short, it seems to me that the appellant jumped the gun. In Adeleke v. O.S.H.A. (supra), the learned trial judge therein maintained that he had no jurisdiction. The appeal therein was principally targeted at establishing that the trial court had jurisdiction. The Court of Appeal found that the trial court had jurisdiction.
It was urged upon the Court of Appeal that if the lower court was found to have jurisdiction that the Court of Appeal should act under section 16 of the Court of Appeal Act. And the court acted accordingly.
I strongly feel that ground IV of the grounds of appeal reproduced above is incompetent. It touches on a point of law which was not determined at the lower court and no leave was sought to raise same. In Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 the Supreme Court pronounced that it is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417: Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt. 664) 325 at p. 338. It starts with a conclusion that the trial court has jurisdiction. Jurisdiction is what the appellant has to establish before this court before raising any other issue. I feel the preliminary objection was made on firm ground. And it is hereby sustained. Ground IV of the grounds of appeal as well as issue iv decoded therefrom are hereby struck out.
The real issue for determination in this appeal is whether the Federal High Court, Enugu had jurisdiction to adjudicate on the appellant’s Originating Summons.
Arguing appellant’s issues 1 and 2, senior counsel submitted that the Originating Summons filed by the appellant did not question any election or a return made at an election as mandated by section 131(1) of the Electoral Act, 2002. He tried to distinguish the decision of the Supreme Court in ANPP v. The Returning Officer Abia State & ors S.C. 78/2005 delivered on 22-02-07. He felt that the decision is clearly not applicable to this case.
Senior counsel submitted that the jurisdiction of the court is determined by reference to the statement of claim of the plaintiff and the endorsement thereon. He cited Adeyemi v. Opeyori (1976) F.N.L.R. 149; Yahaya Adigun & ors v. A.G. Oyo State & ors (1987) 4 SC 272 at 341.He felt that the claim as endorsed on the Originating Summons cannot conceivably be classified as an election matter.
Senior Counsel referred to sections 251 (1)(q) & (r); 178(1) & (2); 285(1) & (2); 184, 6(1)(2)(3)(5) & (6)(b) of the 1999 Constitution. With respect to the cannon of interpretation of statute which erode the rights of individuals, he cited Din v. A.G. Federation (1988) 9 SCNJ 14 at 47; Nwosu v. I.S.E.S.A. (1990) 4 SCNJ 97 at 122; Wilkinson v. Banking Corporation (1948) 1 K.B. 721 at 725.
Senior counsel opined that section 251 (1) cannot be fettered by s. 184 of the 1999 Constitution. He felt that in as much as the prayers of the appellant in the Originating Summons are declaratory and injunctive, they are prayers to which the Federal High Court can take cognizance of pursuant to section 251(1)(v) of the 1999 Constitution.
On behalf of the active respondents, it was contended that jurisdiction is ascertainable from the claim of the appellant only and the subject matter of the action shall determine jurisdiction. It was further submitted that jurisdiction is determined by statute. Senior counsel for the 1st respondent cited F.G.N. v. Oshiomole (2004) 3 NWLR (Pt. 860) 305; Onuorah v. KRPC (2005) 6 NWLR (Pt. 921) 393 at 397; Ishola v. Aiiboye (1994) 6 NWLR (Pt. 352) 506.
Senior counsel submitted that where the subject matter is an electoral matter, the Federal High Court has no jurisdiction. He cited ANPP v. The Returning Officer, Abia State (supra).
Senior counsel referred to sections 184,285 and 251(1) of the 1999 Constitution and urged that it should be noted that in interpreting the Constitution, the Courts have always insisted on a liberal approach; and
more particularly on the rule of interpretation that ‘ut res magit valeat quam pereat’ i.e. a presumption against an absurd interpretation in giving effect to the intention of the lawmaker. He cited Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 231; Osho v. Philips (1972) ANLR 275; COP v. Abasi (1976) ANLR 1 and Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382.
Senior counsel submitted that it is better to settle the issue of jurisdiction before proceeding to hear a case on its merit. He cited Madukolu v. Nkemdilim (1993) 3 NWLR (Pt. 281) 266; SPDC v. Onasanya (1976) 6 SC 89 at 94.
Learned senior counsel maintained that from a combined reading of sections 184 and 285 of the 1999 Constitution, jurisdiction on tenure of office of a Governor falls within the exclusive preserve of Election Tribunal.
I should express it here that the submissions advanced on behalf of other counsel for the respondents flow along with those advanced by the senior counsel for the 1st respondent.
Jurisdiction is the power of a court to adjudicate over a matter brought before it. Same is often circumscribed by Statute. Exclusive jurisdiction has been defined as a court’s power to adjudicate an action or a class of actions to the exclusion of all other courts. See Black’s Law Dictionary, 8th Edition at page 869. Let me express it here with vigor that jurisdiction is very vital in the administration of justice. It is the bedrock of all trials. A trial without jurisdiction, however well conducted, is a nullity. Refer to Madukolu v. Nkemdilim (supra), (1962) 2 SCNLR 341. Any final pronouncement by a Court or Tribunal without jurisdiction is an exercise in futility. One should not attempt to put something upon nothing; as it will collapse. See McFoy v. U.A.C. Ltd. (1962) A.C. 152.Whenever issue of jurisdiction arises in a suit, it must first be resolved; and timely too, before the action can be considered on the merit.See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Orhiommwon Local Govt. v. Ogieva (1993) 4 NWLR (Pt. 288) 472.
At this point, it is apt to set out the provisions of sections 184, 285(1) and (2) and section 251 (1) (p), (q) and (r) of the 1999 Constitution. They are reproduced as follows:
“184. The National Assembly shall make provisions in respect of:
(a) Persons who may apply to an election tribunal for the determination of any question as to whether-
i. Any person has been, validly elected to the office of Governor or Deputy Governor;
ii. The term of office of a Governor or Deputy Governor has ceased; or
iii. The office of Governor or Deputy Governor has become vacant;
(b) Circumstances and manner in which, and the conditions upon which such application may be made; and
(c) Powers, practice and procedure of the election tribunal in relation to any such application.”
“285-(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any ,court or tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) Any person has been validly elected as a member of the national Assembly;
(b) The term of office of any person under tills Constitution has ceased.
(c) The seat of a member of the senate or a member of the house of Representative has become vacant; and
(d)A question or petition brought before the election tribunal has been properly or improperly brought.
(2) 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.
(3) The composition of the National Assembly Election Tribunals, governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution.
(4) The quorum of an election tribunal established under this section shall be the Chairman and two other members.”
Section 251(1) (p), (q) and (r) of the 1999 Constitution provides as follows:
“251 – (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High
Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(P) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
I need to now consider the cannons of Interpretation in respect of Statutes generally and more especially, the Constitution, which is the ground norm. The Supreme Court, in the case of NBN Ltd. v. Weide & Co. Nig. Ltd. (1996) 8 NWLR (Pt. 465) 150 pronounced that –
“The 1999 Constitution of the Federal Republic of Nigeria is the ground norm. The approach of the
Court to the construction of the Constitution should be one of liberalism. It is not the duty of the court to construe any of the provisions as to defeat the obvious ends the constitution was designed to serve; where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. Rabiu v. Kano State (1980) 8-11 SC 130 at 149.”
The provisions of the Constitution should be interpreted in a liberal way so as not to subvert the real intention of Lawmakers. The court should always bear in mind the ‘Harmonious Construction’ or ‘Whole Statute’ rule.
See Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1.
With respect to the cannon of interpretation of statute which erode the rights of individuals, the senior counsel for the appellant cited Din v. A.G. Federation (1998) 9 SCNJ 14 at 47 wherein it was pronounced as follows:
“Now it is an accepted principle of interpretation of statutes that statutes which erode on the right of a subject be they personal or proprietary rights attract strict construction by the court. The implication of that principle is that they are construed fortissimo contra preferentes if possible so as to respect such personal or proprietary rights.”
The senior counsel also cited Nwosu v. I.S.E.S.A. (1990) 4 SCNJ 97 at 122 where the apex court pronounced as follows:
“The court had to be guided by the principle that every superior court of record guards its jurisdiction jealously. So while a person’s access to have his civil right adjudicated by a court may be restricted or ousted by statute the language of such a statute must be construed strictly.”
After a careful reading of the reliefs claimed by the appellant at the lower court, it goes without saying that the issue of when the tenure of the appellant as Governor of Anambra State of Nigeria would cease is the real subject matter of the instant action. It does not matter however the reliefs are couched.
A thorough and community reading of sections 184 and 285(1) & (2) of the 1999 Constitution makes it clear that the Election Tribunal has an exclusive and original jurisdiction on issues bordering on electoral matters.
By virtue of section 285(2) of the 1999 Constitution, one or more election tribunal is established in each of the states of the Federation to adjudicate on electoral matters. Refer to Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319 at 360.
I must note it here that section 251 (1) of the Constitution gives the Federal High Court exclusive jurisdiction in respect of the matters listed therein. But it does not cater expressly for jurisdiction of the Federal High Court on electoral matters. The law is expressio unius exclusio alterius – the express mention of a thing excludes the others. See Major & Co. Ltd. v. Schroeder (1992) 2 NWLR (Pt. 101) 1.
It is clear to me that the Lawmaker has, without any reservation, assigned to the Election Tribunal exclusive jurisdiction on fallouts of election and tenure matters and therefore no other court can entertain same.
The Federal High Court has its own exclusive jurisdiction in matters covered by section 251 (1) of the Constitution. It is like what I may refer to as division of labour. And where as in this case, section 285(1) and (2) give exclusive jurisdiction to Election Tribunal over electoral matters, the Federal High Court has no jurisdiction. The learned trial judge was right in the position taken by him. I respectfully call to mind my stand in the case of Nabaruma v. Ofodile (2004) 13 NWLR (Pt. 891) 599 at 623. See also Enagi v. Inuwa (1992) 3 NWLR (Pt. 231) 584 at 565.
Let me further state it here that section 251 (1) of the 1999 Constitution cannot be read literally as doing so may subvert the express and special jurisdiction granted by the makers of the Constitution to the election tribunal on matters touching on electoral matters generally. Such will go against well established cannons of statute interpretation such as ‘liberalism’, ‘harmonious construction’ or ‘whole statute’ rule. See A.G. Abia State v. A.G. Federation (2006) 16 NWLR (pt. 1005) 265; A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1.
It must be stated here that no one is trying to gag the appellant from pursuing his cause. The point being made is that he should initiate his process in the right tribunal. As aptly put by the Supreme Court in the case of A.G. Fed. v. A.G. Abia State & 35 ors (2001) 11 NWLR (Pt. 725) 689 at 698, ‘the question is not whether the plaintiffs case has no merit but whether the plaintiff is in the right court’.
On behalf of the appellant, learned senior counsel opined that section 131 of the Electoral Act 2002 covers the, four prayers that could be sought at an Election Tribunal. He felt that consideration of tenure of office is not one of them. That was an ingenious submission. But I dare say that the grounds stated in s.131 of the Electoral Act, 2002 cover the fallouts from an election.
While sections 184 and 285 of the 1999 Constitution provide for the tribunal to hear matters relating to tenure of office after a Governor must have taken appropriate Oaths. In any event, there is no way by which the provision of the Electoral Act, 2002 can negatively stand in the way of the Constitution.
The appellant as plaintiff couched his reliefs in declaratory and injunctive forms. But as stated earlier on, he desired that pronouncement be made on his tenure of office. The reliefs as claimed and reproduced earlier on in this judgment cannot be employed as a subterfuge of his real claim which relates to determination of his tenure of office. Such ploy does not change the character of the matter as an election matter which clearly belongs to the appropriate Election Tribunal. Refer to All Nigeria Peoples Party v. The Returning Officer Abia State & ors. SC 78/78/2005; judgment delivered on 22nd February, 2007.
There was the mention, though in passing it seems, that the Election Tribunal is an ad-hoc tribunal. And one may say that same prompted the appellant to approach the wrong court. One needs to remind the appellant that section 285 of the Constitution provides that there shall be at least one Election Tribunal in each state of the Federation. It did not say on ad-hoc basis. And so if the appellant desired to approach the Election Tribunal which is the right tribunal, he should have approached the appropriate authority for necessary action. As an insider, I know very well that the leader of this court is very much alive to his responsibility. The appellant did not act in the right direction to his own detriment. I refer to Atiku Abubakar v. A.G. Federation & ors (2007) 3 NWLR (Pt. 1022) 601. The case had to do with the tenure of office of the Vice President, Federal Republic of Nigeria. He filed his action directly at the Court of Appeal vide its original jurisdiction as provided by section 239(1) (b) of the 1999 Constitution. The section provides that the Court of Appeal has exclusive jurisdiction to determine whether (b) the term of office of the President or Vice President has ceased’. He did not make the mistake of going to the Federal High Court.
By parity of reasoning, section 285 provides that the Election Tribunal shall have exclusive original jurisdiction to determine – ‘(1) (b) whether the term of office of any person under this Constitution has ceased’. The appellant, being the Governor of Anambra State, is a person under the Constitution who desired to know when his term of office will cease.
Section 184 mandates the National Assembly to make provisions in respect of ‘(a) persons who may apply to an election tribunal for the determination of any question as to whether ‘(ii) the term of office of Governor or Deputy Governor has ceased’. The provision is similar to that of the President and Vice President. I seriously feel that the case of Atiku Abubakar (supra) should have served as an eye opener to the appellant. He should have approached the Election Tribunal. I do not want to say it that any argument to the contrary may have the semblance of an eye wash.
I must say it here that the appellant approached the wrong court for his redress. The learned trial judge was right when he found that his court has no jurisdiction. I am completely at one with him. I accordingly resolve issues i & ii against the appellant. The next issue relates to the stance of the lower court on reference of certain questions for answers by this court vide section 295(2) of the 1999 Constitution. It is issue iii in the appellant’s brief and issue 2 in the Respondents’ briefs of argument.
Parties are ad idem that the determinants for a proper case of reference from a lower court to this court, based on section 295(2) of the 1999 Constitution are as follows:
a. The question for referral must be as to interpretation of the Constitution.
b. It must arise from the proceedings of the lower court.
c. It must involve a substantial question of law.
The above three requirements must co-exist. See Ifegwu v. FRN (2003) IS NWLR (Pt. 842) 113 at 150; Bamaiyi v. A.G. Fed. (2001) 12 NWLR (Pt. 727) 468 at 475; Rossek v. ACB (1993) 8 NWLR (Pt. 312) 371.
The 3rd requirement has been held to mean point of law which is capable of more than one interpretation. See Bamaiyi v. A.G. Fed. (supra).
It must be a point of law of general public importance or interest. See FRN v. Ifegwu (supra). It must directly and substantially affect the rights of the parties or it is still an open question that has not been pronounced upon in a binding decision of the Supreme Court or is not free from difficulty or there is confusion as to what the law is on the point.
I have already sustained the finding of the learned trial judge that he had no jurisdiction to entertain the appellant’s Originating Summons. I have my reservation about whether the learned trial judge should go ahead to consider the point relating to reference. He is also deprived of jurisdiction to refer questions to the Court of Appeal.
Question I relates to the point of jurisdiction to entertain the matter.
Whenever issue of jurisdiction is raised, it is not for the court just to wash off its hands. When raised, it is for the court to determine whether in fact it has one imbued in it. See Ogunmokun v. Mil. Admin Osun State (1999) 3 NWLR (Pt. 594) 261.
The lower court, relying on the case of ANPP v. R.O.A.S. (supra), found that issue of jurisdiction was settled by the Supreme Court and needed no reference. I agree with him. The apex court found that however a relief is couched, an electoral matter as herein – determination of tenure of office is for the appropriate Election Tribunal. There is no longer anything novel, difficult or obtuse about the issue of jurisdiction of the Federal High Court in election matters which the makers of the Constitution expressly and exclusively reserved for Election tribunal vide sections 285 and 184 of the Constitution. The forum where tenure of office should be determined is no longer a moot point. It provides no difficulty whatsoever.
The learned trial judge considered the issue whether constitutional rights can be waived and dismissed same, as improper for reference. I agree that there is nothing recondite in it. Waiver is the intentional or voluntary relinquishment of a known right. Atlas Life Ins. Co. v. Schrimsher 179 OKL. 643, 66 p. 2d 944, 948. See also Nnonye v. Anyichie (2005) 2 NWLR (Pt. 9) 623 at 647, 666; Ariori v. Elemo (1983) 1 SC 13.
The appellant, no doubt, met a brick wall in respect of the issue of jurisdiction and urged strenuously to simply transfer, as it were, the substantive issues raised to the Court of Appeal. As noted by the Supreme
Court in Atiku v. A.G. Fed. 1 SC 7/2007 delivered on 25th January, 2007 such is not right.
The three requirements for reference of the questions as desired by the appellant have not been met. I have no hesitation in resolving the issue against the appellant.
The last point is whether I should act under s. 16 of the Court of Appeal to consider the merit of the Originating Summons. Authorities abound that the trial court must have jurisdiction to entertain the case before this court can exercise its powers under the stated section 16 of the Court of Appeal Act. See Inokoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 613. In Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608, this court found therein that the lower court had jurisdiction before the Court of Appeal acted under s. 16 of the Court of Appeal Act. In the present matter, the lower court has no jurisdiction. It will not be logical for us to act under s. 16 of the Court of Appeal Act. I do not want to be dragged into such a melee. I therefore keep my peace on the point.
In conclusion, I find that the appeal lacks merit and it is hereby dismissed. I confirm the order of the learned trial judge in which he struck out the appellant’s Originating Summons. The order was proper in the prevailing circumstance. See Governor of Kogi State v. Hassan Yakubu & anr (2001) FWLR (Pt. 43) 50 at 368.
Appeal dismissed. Appellant’s Originating Summons filed at the lower court is struck out. The appellant shall pay N5,000 to each set of 1st-7th Respondents.
Other Citations: (2007)LCN/2385(CA)
