National Electoral Commission & Ors. V. Chief Sunday Agboh & Anor. (1992)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The 3rd appellant and 1st respondent contested for the post of Chairman of Obanliku Local Government on the platform of their respective political party – i.e. the Social Democratic Party and the National Republican Convention. At the end of the election, the National Electoral Commission (NEC – 1st appellant) declared the 3rd appellant elected having scored more votes than the 1st respondent. The 1st respondent was dissatisfied with the result of the election. He accordingly filed an ex-parte motion at the Obudu Judicial Division of the High Court of Cross River State in which he prayed the Court for an order:
“1. Restraining the NEC from presenting or parading the 3rd Defendant/Respondent, David Animpuye as having been duly elected as the council Chairman for Obanliku Local Government Area in the November 23rd 1991 Local Government Bye-election held all over Obanliku Local Government Area.
- Restraining the Cross River State Military Governor from swearing in the 3rd Defendant/Respondent as the Chairman of Obanliku Local Government Area,”
The motion was supported by a 12 paragraph affidavit sworn to by the 1st respondent. The motion came before Binang, J. on 3rd December 1991 who, after hearing the learned counsel for the applicant, granted all the reliefs as prayed.
Shortly after the order of the Court was served on the appellants, they filed a motion before the same Court in which they prayed the Court “for an order discharging the injunction imposed on the applicant by a motion ex-parte dated 3rd of December 1991.” The applicants supported their motion by a 12 paragraph affidavit sworn to by the 3rd applicant and to which was exhibited the summary of the results of the election from the various wards and the handing over notes given to the 3rd appellant by the previous holder of the office of chairman of the council when he took over as Chairman.
The facts relied upon in the affidavit were that the result of the election was published long before the 1st respondent filed his ex-parte application before the Court; that the 3rd appellant was sworn in as Chairman on 3rd December, 1991 that is, on the day the Court, heard the ex-parte motion. The appellants’ contention therefore was that the acts sought to be restrained had been completed; and that the Court had no original jurisdiction in the matter by virtue of Sections 70 and 75 of the Local Government (Basic Constitutional Provisions) Decree No.15 of 1989.
The court, after hearing counsel for the parties, ruled that it had jurisdiction in the matter. The learned trial Judge said, inter alia, as follows on pages 32-34 of the record;
“I have carefully listened to the argument put forward by both learned counsel. I have considered the legal authorities quoted. Before I go to the merit of this motion, I wish to observe that the powers of the Court to question how acts, deeds or omissions of any legally established body or bodies are carried out remains unfettered by any enactment. Although certain Decrees are designed to restrain the Courts from questioning why certain acts are done, no law or enactment, State or National can restrain the Court from enquiring how such powers are exercised. The 1979 Constitution of the country is the supreme law. Sections 236 and 237 of the 1979 Constitution gives the Courts this power to the exclusion of any other law or enactment
In the absence of any constituted Election Tribunal, the courts can fall back on the special powers conferred on it (sic) by section 236 of the 1979 Constitution and entertain the suit. This was exactly what happened on the 3rd of December 1991 when the plaintiff/respondent came to court with an ex-parte motion for an order of injunction.”
The Court then held that the motion lacked merit. It accordingly dismissed it. The appellants were dissatisfied with the court’s ruling and filed one ground of appeal against it. The ground of appeal (without the particulars) read thus:
“The learned trial Judge erred in law when he ruled that the lower Court had jurisdiction to grant ancilliary reliefs by way of injunction, there not being in existence at the material time, a Local Government Elections Tribunal to hear and determine the substantive suit.”
The appellants filed their brief on 9th January 1992 and relied on it at the hearing in this Court. The respondent did not file any brief. But they filed “a notice of intention to contend that the judgment should be affirmed on grounds other than those relied on by the Court below.” The grounds set out in the notice are that the appellants failed to exhibit with the affidavit accompanying the motion, the order sought to be discharged and that the order to discharge, if granted, would be incapable of enforcement and therefore in vain as the particulars of the order sought to be discharged (like the number of the suit in which it was made and by which Court) were not supplied by the applicant. The respondents and their counsel did not show up at the hearing in this Court.
The appellants formulated the following two issues for determination in the appeal:
“1. Whether the lower Court had jurisdiction to determine the question whether or not the 3rd appellant had been validly elected Chairman of Obanliku Local Government Council.
- If the lower Court had no jurisdiction over the substantive action, whether it nevertheless had jurisdiction to grant ancilliary reliefs by way of injunction.”
It was the contention of learned counsel for the appellants that the trial Court lacked jurisdiction to entertain the matter and as such its orders were a nullity. He submitted that the power to adjudicate on the matter was conferred on the Local Government Council Elections Tribunal under section 70(1)(a) of the Local Government (Basic Constitutional Provisions) Decree (No.15 of 1989) and as such the High Court had no original jurisdiction in the matter. Section 70(1) of the Local Government (Basic Constitutional Provisions) Decree 1989 provides as follows:
:70(1) There shall be established for each State one or more Election Tribunals to be known as Local Government Council Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine-
(a) Petitions as to whether any person has been validly elected as Chairman of a Local Government Council or as Councillor;
(b) Any question as to whether the terms of Office of any person as Chairman of a Local Government Council has ceased; and
(c) Any question as to whether the seat of any Councillor in a Local Government Council has become vacant.
However, section 75(1) of the same Decree confers appellate jurisdiction in the same matter on the High Court. The section provides as follows:-
“75(1) Appeal shall lie to a competent High Court from the decisions of Local Government Council Election Tribunals established under this Decree on the grounds specified in section 73 of this Decree or on any question whether any person has been validly elected as chairman or any other member of a Local Government Council or whether the seat of any such person has become vacant.”
It is clear from the portion of the lower Court’s ruling quoted above that the learned trial Judge claimed jurisdiction in the matter by virtue of the provisions of sections 236 and 237 of the Constitution of the Federal Republic of Nigeria 1979. While section 236(1) confers general jurisdiction on the High Court, section 237(1) gives the same High Courts jurisdiction in certain specified cases.
The said section 236(1) provides as follows:
“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
“237 (1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other Court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.”
The learned trial Judge, while asserting that he had jurisdiction to entertain the matter before him, was of the view that the 1979 Constitution gave his Court the power “to the exclusion of any other law or enactment.” He was also of the view that “although certain Decrees are designed to restrain the Courts from questioning why certain acts are done, no law or enactment, state or national can restrain the Court from enquiring how such powers are exercised.”
There is doubt that the learned trial Judge misconstrued the provisions of the Law in this respect. It is trite law that the provisions of a decree prevails over the unsuspended provisions of the 1979 Constitution. See James Oruhu v. National Electoral Commission & Ors (l988) 5 NWLR (Pt.9d) 323. It follows therefore that the provisions of section 70(1) of the Local Government (Basic Constitutional Provisions) Decree 1989 by which original jurisdiction in Local Government election matters are conferred on the Local Government Council Election Tribunals, prevail over the provisions of sections 236 and 237 of the 1979 Constitution. See also Ikuogbogun & Ors. v. Rabiu (1989) 4 NWLR (Pt.114) 216: Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Egbo & Ors. v. Laguma & Ors (1988) 3 NWLR (Pt.80) 109; and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.
A court is only competent to adjudicate over a matter if and only if it has jurisdiction to do so. Thus as Bairamian, F.J. emphasized in Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 (1962) 1 All NLR 587, a court is competent to adjudicate in a matter before it only when (1) it is properly constituted with respect to the number and qualification of its members; (2) the subject-matter of the action is within its jurisdiction; (3) the action is initiated by due process of law; and (4) any condition precedent to the exercise of its jurisdiction has been fulfilled. It is clear from the facts established in the instant case that original jurisdiction in the matter before the trial court was conferred on the Local Government Council Election Tribunal and that the High Court can only adjudicate over appeals from the decisions of the tribunal. It follows therefore, that the learned trial Judge lacked jurisdiction in the matter before him. The fact that the tribunals had not been constituted did not confer original jurisdiction in the matter on the High Court.
There is therefore merit in the appeal and it is accordingly allowed. The ruling and orders of the lower court made on 27th December, 1991 are hereby set aside. In their place, I hereby strike out the claim before the Court for want of jurisdiction. The appellants are awarded N350.00 costs to be paid by the 1st respondent.
Other Citations: (1992)LCN/0119(CA)
