Mrs. Margarey Okadigbo V. Prince John Okechukwu Emeka & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
M. CHUKWUMA-ENEH, J.S.C.
This appeal has arisen from the decision of the Court of Appeal Enugu Judicial Division, sitting as Election Appeal Tribunal of Anambra State holden at Awka in which the appellant as the petitioner has prayed for the following reliefs:
“1. An order disqualifying the candidature of the 1st respondent as candidate for the April 9th election into Anambra-North Senatorial District as not having been sponsored by any political party (underlining supplied for emphasis).
- An order returning the petitioner as the elected candidate in the April 9th Senatorial Election having polled the majority of lawful votes cast at the said election.
- An order directing the 3rd respondent to issue Certificate of Return to the petitioner being the winner of the said election.”
The appellant has lost in both the two lower courts and has now appealed to this court and has maintained the same case here as in the lower courts. The tribunal in its Ruling delivered on 29th June 2011 has held as follows:
“Having reached a finding:-
(1) That this tribunal lacks jurisdiction to entertain this petition as it is predicated on pre-election issues, and
(2) That the petitioner has no locus standi to present and maintain this petition, the preliminary objection succeeds and we accordingly order that this petition be and is hereby struck out.”
In the same vein the lower court in its judgment delivered on 19/8/2011 has come to this important conclusion in affirming the decision of the trial Tribunal in these words:
“In the instant case, there was no final and subsisting judgment of a court in favour of the appellant but an ex parte order meant to last momentarily pending the determination of the substantive application.
The subsequent order of the Federal High Court, Awka made on 25/3/2011 urged parties to maintain the status quo until the matter is disposed of. There is nothing before this court to show that the matter has been disposed of on the merit meaning that it is perhaps still pending (underlining supplied). The issue in contention thus remains a pre-election matter. The appellant is free to proceed with the matter at the Federal High Court including perhaps contempt proceedings for a breach of the exparte order where it is found necessary but not in an Election Petition Tribunal. In the circumstances I hold that the trial tribunal was right in finding that it lacks jurisdiction to entertain the appellant’s petition because it is predicted on pre-election issues.
On the issue of locus standi, it is my humble view that addressing the issue now will constitute an academic exercise having agreed with the trial tribunal that it lacked jurisdiction to even look into the petition having found that it is a pre-election matter. From the totality of the above, I hold that this appeal lacks merit and is hereby dismissed. The Ruling of the trial tribunal delivered on 29/6/2011 is hereby affirmed.”
The above abstracts of the two lower courts speak for themselves. I have however, positioned these findings as concurrent findings in this matter and the onus is on the appellant to show their perversity to succeed and specifically to bring to the fore the central questions in this appeal. The appellant instead of going back to continue to its final conclusion the matter of her candidacy nomination and sponsorship still pending at the Federal High Court Awka has chosen the course of the instant appeal before this court. Even as appellant’s Counsel has in his submission as at p.360 LL.7-10 of the record(s) which has not been challenged stated thus;
“…. that the issue was not that the appellant wanted the tribunal to declare her a candidate of the party but rather that she was already a candidate by the decision of the Federal High Court, Awka. Therefore, all the votes cast for PDP in the election should be attributed to her and thus declared winner of the election with the 60,788 votes awarded to her and not the 1st respondent… that in so far as the Federal High Court had decided that the appellant was the candidate in the Election, that decision had automatically made her a candidate in the election thus conferring her with the locus standi to present the petition.”
Being aggrieved by the decision of the lower court the appellant in her brief of argument filed on 27/9/2011 in this matter has raised a sole issue for determination as follows:
“Whether the court below was right in holding as it had done that the petition of the appellant was predicated on pre-election issues that divested the trial tribunal of jurisdiction to entertain the same and whether the decision did not thereby act to deny or deprive the appellant of a hearing on the merit in respect of the Election Petition.”
The 1st respondent in his brief filed on 11/1/2011 in this appeal has raised the issue for determination as follows:
“Whether the Court of Appeal was right in upholding the decision of the Lower Tribunal striking out the petition on the grounds that same was predicated on pre-election matters.”
The 2nd respondent in its brief of argument filed on 24/10/2011 in which it has reacted to the issue raised by the appellant as to the grounds of appeal has adopted the appellant’s sole issue. The 3rd respondent in his brief of argument filed on 30/9/2011 in this matter clearly has also adopted the said sole issue as raised by the appellant.
The 1st and 2nd respondents have each raised a preliminary objection in their respective briefs of argument. The 2nd respondent’s notice preliminary objection typical of the objections simply put is that-
“The Supreme Court lacks jurisdiction to entertain the Appellant.”
The grounds of the objection are:-
“1. That this Honourable Court lacks jurisdiction to entertain the Appeal of the Appellant.
- The subject matter relates to an appeal from the decision of the Court of Appeal sitting as an Election Appeal Tribunal.
- The law in existence as applicable to the instant appeal is the 1999 Constitution (as amended), and by virtue of Section 246(3) thereof, this Honourable Court lacks the competence to entertain this appeal, the Court of Appeal being final in respect of appeals arising from the National and State House of Assembly Election petitions.”
The 3rd respondent has not followed suite in filing preliminary objections but has proceeded to argue the substantive appeal. In consequence of the objections raised by the 1st and 2nd respondents, the appellant has reacted to the same as per the appellant’s reply briefs to the 1st and 2nd respondents’ briefs of argument and filed the same.
It is trite that where an objection as the instant ones raise fundamental issues touching on the vires of the court to entertain a matter as the instant appeal it is incumbent on the court to have it disposed of first as to proceed to entertain the matter in circumstances where the court has no vires to do so comes to naught being a mere academic exercise.
The 1st respondent has relied on the cases of Drexel Energy and Natural Resources Ltd. & Ors. V. Trans International Bank Ltd. & Ors. (2009) 15 URN. 1 at 52 LL.25-35 and Osuu S. C. Oduko v. Government of Ebonyi State & Ors. (2009) 25 WRN pp.10-11 LL.45 et.seq., Oniwaka B. Ibrahim v. Ishola Balogu Fulani & Ors. (2009) 18 WRN 1 p.80 LL.5-10, Prince Olusegun Adesola & Ors. v. Mr. Isaac Adeyinka Ayeoba and Ors. (2009) 23 WRN 118 pp.142-143 LL.25-10 to submit on the vires of the court to embark on its judicial action which has to be controlled by the statute creating the court and further more on Madukolu v. Nkemdilim (1962) 2 SCNLR. 341 to assert whether a court as this court is competent to exercise its jurisdiction without which (i.e. this power) the court acts in vain. It inter alia has referred to Ihekwoba v. State (2004) 15 NWLR (Pt.896) 296; Ugwuanyi v. NICON Insurance Plc. (2004) 15 NWLR (pt.897) 612 and Onyenucheya v. Military Administrator, Imo State (1997) 1 NWLR (pt.482) 429. The point is made that the parties cannot by consent, omission or conduct confer on or expand the jurisdiction of a court nor can the court confer on itself the power it would otherwise, not have. See Ukpong v. Commissioner for Finance Akwa Ibom (2007) FWLR (Pt.350) 1246. It is also submitted that Section 246(3) of the 1999 Constitution (as amended) has provided that decisions that have originated from election petitions to the court below shall be final in the National and State Assembly election petitions and that the instant appeal having been caught by the said provisions of that section terminates thereat so that this court lacks the power to hear the matter as per the Constitution being the supreme law; and refers to Onuaguluchi v. Ndu (2001) 7 NWLR (Pt.712) 309 on the finality of such judgment. The instant case has been distinguished from the case of Ucha v. Onwe (2011) 4 NWLR (Pt.1237) 386. The court is urged to uphold the objection and strike out the appeal.
The 2nd respondent as I have posited above has set out the grounds of its objection. It also relies on Section 246(3) of the 1999 Constitution to submit that the decisions of the lower courts in respect of the appeals arising from the National and State Houses of Assembly election petitions shall be final. And so, that the instant election petition filed by the appellant has been rightfully struck out at the Federal High Court being a pre-election matter over which the instant Election Petition Tribunal has no jurisdiction. The point is also made that by virtue of Section 246(3) that the decision of the Court of Appeal Election Appellate Tribunal delivered on 19/8/2011 being final the instant appeal to this court constitutes an abuse of court process. See Amgbare v. Oji Lewkwanwa (2011) 8 EPR 843 at 853-554.
The court is urged to dismiss the appeal as it constitutes an abuse of court process.
The appellant in her response to the objections has contended that although Section 246(3) of the 1999 Constitution has provided that the decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final that the provision does not apply here as appeals on issues of substitution terminate in this court and that this court has the power to pronounce on pre-election matters. She relies on Ucha v. Onwe (supra) for so submitting. See also PDP v. Onwe (2011) 4 NWLR (pt.1236) 166. The court is urged to overrule the objection and to hold that this court has the jurisdiction to hear the appeal.
On an over-view of this case, it is necessary not to decide or pronounce on live issues that ought to be decided at the trial court in the pending suit No.FHC/AWK/CS/05/2011. Therefore, this court must tread carefully in dealing with this matter.
Before coming to the issue of jurisdiction in dealing with this matter it is necessary to clear the apparent confusion of the appellant’s case in this court, which I have identified as want of maintaining a consistent case here as in the two lower courts. It is not in any doubt that the instant action has commenced and continued in the trial Tribunal and the lower court as an election petition matter which has metamorphosed into a pre-election matter in this court. And as held in Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 justice will never decree anything in favour of such slippery a customer.
In expatiation in the instant Election Petition Tribunal the appellant has in paragraph 4 of the petition pleaded that: “The petitioner will at the trial rely on the Tabular of the INEC down-loaded from the official INEC website which shows that PDP won the election with the name of the 1st respondent which is written against the PDP but with the word ‘Election’ not included.” The implication of this averment and as has been borne out from its judgment and I agree with the lower court in that regard there has been a pre-existing controversy over the nomination and sponsorship between the appellant and the 1st respondent as to the rightful candidate to carry the PDP flag in the election of 9/4/2011 as has been in the case of Onyekweli v. INEC (supra) a case the appellant has relied upon at every stage in advancing her case here. And the same has not been resolved before the election of 9/4/2011. If I may interpose here Section 141 of the Electoral Act 2010 as amended has provided for the scenario being played out in the circumstances. However, in paragraph 10 of the petition the appellant has made the position clearer that her case amounts to a pre-action matter by averring that:
“In addition to the above documents which are authentic documents a candidate is required to show, there are also three (3) courts orders made by the Federal High Court Awka in suit No.FHC/AWK/CS/05/2011 dated 13/01/2011, 11/02/2011 and 25/03/2011 respectively as per page 64 to 66 of the record, which restrained INEC not to accept any other name other than the name of the petitioner in respect of Anambra North Senatorial District…”
The above averment has unequivocally made it clear that the appellant and the 1st respondent are locked in contest in the Federal High Court Awka as to who is the authentic PDP flag bearer in the election of 9/4/2011. The appellant has relied on the above mentioned three orders she has obtained from the Federal High Court Awka, which as found by the lower court, are no more than ex parte orders which have been made pending the determination of the substantive application for judicial review to the effect that the 2nd respondent has no powers not to accept any list of candidates’ names sent to it by the political party. In other words, I must observe the orders being relied on by the appellant here to invoke the principle applied in the decision in Onyekweli v. INEC (supra) to all intents and purposes are not final orders. The appellant has embarked on this exercise to all appearances all in a futile attempt to bring the petition within the ambit of Sections 137(1) and 141 of the Electoral Act 2010 as amended. There can be no doubt that the appellant has misconstrued the case of Onyekweli v. INEC (supra) vis-a-vis its application to this case.
From the above scenarios the lower court rightly has found that the action as constituted and concluded at the trial tribunal is a pre-election matter otherwise being prosecuted as an election petition simpliciter. In this court the appellant has turned complete summersault as per her brief of argument and in the oral submission before us in her case and on this apparent blunder has submitted as per paragraph 3 of the appellant’s reply brief to the 2nd respondent’s brief of argument thus;
“In so far therefore as the court below had found that election petition in this appeal deals on pre-election issues, I then submit most respectfully my Lords that this court has jurisdiction to entertain the Appeal the provisions of 246(3) of the 1999 Constitution (as amended) notwithstanding” and relies on Ucha v. Onwe (supra) and PDP v. Onwe (2011) 4 NWLR (pt.1236) 166 for so submitting. My lord, what the lower court has said as per the foregoing abstract could constitute aground of complaint and so a ground of appeal in this court and not an enabling vires to empower this court to entertain this appeal as the appellant has in error submitted at the oral hearing of this appeal.”
This is a clear concession that the matter is a pre-election matter clearly instituted in the wrong court without powers to entertain it. I have taken pains to set forth the sequence of lack of consistency in the appellant’s case in this appeal as compounded by the averments in her pleadings through her stance in both lower courts to this court where she seemed to have abandoned her pleadings altogether as exemplified by the above abstract. It is settled law that a party ought to be consistent in the case he pursues and not as it were, spring surprises on the opposite party from one stage to another. This is so as an appeal is regarded as a continuation of the original action rather than as an inception of a new suit. And so in appeals parties are normally confined to their case as pleaded in the court of first instance (in this case the trial tribunal). See: the case of Jumbo v. Bryanko International Ltd. (1995) 6 NWLR (Pt.403) 545 at 555-536 F-H and Ajide v. Kelani (supra). The court is bound in this instance to reject the appellant’s case and dismiss the appeal in its entirety even solely on this ground against its peculiar circumstances and as the saying goes “you can’t change horses midstream”. More importantly I am satisfied and hold that the facts of this case are hinged on pre-election matters and so are not entertainable by the instant trial tribunal as they are ultra vires its powers. See Ucha v. INEC (supra) and PDP v. Onwe (supra).Next I examine the provisions of Section 246(3) (in the con of this appeal) which provides that:
“The decisions of the Court of Appeal in respect of Appeals arising from the National and State Houses of Assembly election petitions shall be final.”
This means simply that the lower court is the final court in the appeals arising from the National and State Houses of Assembly election petition tribunal. Therefore, this court lacks the jurisdiction to entertain such appeals vis-a-vis election petitions from the lower court. It is the final court in such matters whether rightly or wrongly decided. The instant appeal in this court has arisen from the decision of the lower court sitting as an election appeal tribunal and being a final tribunal in all matters under the provisions of Section 246(3) and Section 285(1) and if I may repeat this court lacks the jurisdiction to entertain the same. What so far has resulted from the circumstances of this case is that it could be properly determined at the Federal High Court as it is a pre-election matter and it may ultimately come to this court. See Onuaguluchi v. Ndu (supra), Osakwe v. Federal College of Education Asaba (2010) (Vol.187) LRCN 170 at 1999. Without mincing words, this appeal is misconceived because the appellant has relied on reasoning by implication in order to get to the conclusions she has invited the court to reach even as the instant proceeding is an abuse of process in that the appellant has an already pending matter as per suit No.FHC/AWK/CS/05/2011 seeking as in this matter the very reliefs which are the subject matter of the said pending suit. See Doma v. Adamu (1999) 1 NWLR (Pt.598) 311 and Benaplastic v. Vasilyer (1999) 10 NWLR (Pt.624) 620. The bottom line of this case therefore, is that the trial tribunal has no vires to entertain this matter ab initio and that jurisdiction is the enabling power for the court to act on matters placed before it and without it the court labours for nothing. See Drexel Energy and Natural Resources Ltd. & Ors. V. Trans International Bank Ltd. & Ors. (supra) and there are no two ways to it. Lack of jurisdiction is that profound in its total incapacitation of any court’s decision as the decision creates no obligations nor confers any rights.
Finally, because some of the issues pertinent in dealing with this matter are still live issues vis-a-vis the suit No.FHC/AWK/CS/05/2011 still pending at the Federal High Court Awka in that case there is no legal ground to institute the instant action at the trial tribunal as an election petition matter. It smacks of an abuse of process and even moreso as forum shopping with respect.
For the reasons stated above, I find merit in the preliminary objections of both 1st and 2nd respondents and uphold the same. In the result, the lower court having rightly affirmed the ruling of the trial tribunal, the instant appeal is hereby struck out with N50,000 costs to the 1st respondent only.
Appeal struck out.
SC.331/2011
