Ola-animashaun Harimot Olubukola (Mrs) & Anor V. Attorney General of Lagos State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
YARGATA BYENCHIT NIMPAR, J.C.A.
This is an appeal against the judgment of the Lagos State High Court sitting at Ikeja and delivered by HON. JUSTICE BOLA OKIKIOLU – IGHILE on the 17th day of December, 2012 wherein the lower Court upheld a preliminary objection and struck out the action of the Appellants for want of jurisdiction.
The Appellants by way of Originating Summons taken out against the Respondents sought answers to certain questions
i. Whether the Lagos State House of Assembly has the power under the Constitution of the Federal Republic of Nigeria 1999 (as Amended), hereinafter referred to as ?the Constitution” to make the Lagos State Independent Electoral Commission Law, 2008 to establish a body (the State Independent Electoral Commission) which has already been established by Section 197(1) (b) of the Constitution with both its composition and powers as stated by Section 197(2), Part II of the Third Schedule to the Constitution.
ii. Whether the Lagos State Independent Electoral Commission (hereinafter referred to as “LASIEC?) has the power under Section 197(2) and Part II, Paragraph 3,
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4(a) and (b) of the Third Schedule of the Constitution to organise and supervise election into Local Government Council Development Areas, as distinct from Local Government Councils/Areas.
iii. Whether there was election conducted into the offices of the Chairman and Vice Chairman of Ikorodu Local Government Council/Area as established by the Constitution and recognized by Sections 9 and 156 of the Electoral Act, 2010.
iv. Whether the election conducted by LASIEC on 22nd October, 2011 into the offices of the chairman and vice chairman of Ikorodu Central Local Council Development Area by virtue of which the 4th and 5th Defendants were elected as chairman and vice chairman respectively is the same as the election required by the provisions of the Constitution and the provisions of the Electoral Act, 2010 to be Ikorodu Local Government/Area as established and recognized by the Constitution.
v. Whether the constitutional right of the Appellants to vote and be voted for at an election to a local government council as guaranteed by the provision of Section 7(4) of the Constitution has not been breached by the failure of LASIEC to conduct election into
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the offices of the chairmen and vice chairmen of Ikorodu Local Government Council/Area as established and recognized by the Constitution and the Electoral Act, 2010.
vi. Whether having regards to the provisions of the Constitution, particularly the provision of Section 1(2), the 4th to 15th Respondents cannot be said to have taken control of the government of Ikorodu Local Government/Area unlawfully and in breach of the provision of Section 1(2) of the Constitution.
The 3rd and 4th – 15th Respondents upon being served with the Originating Summons separately filed Preliminary objections challenging the action for want of jurisdiction. The Preliminary objections were taken jointly and the Court in its combined ruling upheld the objection and struck out the suit. Dissatisfied with the said Ruling, the Appellants filed a Notice of Appeal dated 11th February, 2013 setting out 9 grounds of Appeal and seeking the following reliefs:
a. An order setting aside in its entirety the Ruling of the Honourable Justice Bola Okikiotu – Ighile delivered on the 17th December, 2012.
b. An order that this Honourable Court involving its powers under Section 15
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of the Court of Appeal Act, considering the fact that this is a constitutional matter calling strictly for the interpretation of Section 7(4), 197(1) (b) and 197 (2) of the 1999 Constitution, by hearing the Originating Summons on its merit and giving judgment for the Appellants.
The Appellants filed their Appellant’s Brief of Argument dated 6th June, 2013 filed on the 7th June, 2013 and a Reply Brief to the 3rd Respondent’s Brief of Argument and Preliminary Objection and also a Reply brief to the 4th ? 15th Respondent’s Brief dated 5th February 2016 and filed on the same date.
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The 1st and 2nd Respondents did not file any brief. The 3rd Respondent’s Brief dated 29th day of August, 2013, filed on the same date incorporated arguments in support of the Preliminary Objection filed separately on 29/8/13. The 3rd Respondent also filed a Notice of intention to contend that Judgment should be affirmed on grounds other than those relied on by the Court below. It was filed on the 29/8/13. The 4th – 15th Respondents Brief is dated 8th July, 2013 filed on the 12th July, 2013. The Preliminary objection was moved and briefs adopted at the hearing of the
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Appeal. The Appellant distilled the following issues for determination as follows:
(i) Whether the learned trial Judge was right to have held that the Appellants’ claims constitute a post election matter, thus declining jurisdiction after having held that prayers 1 and 2 of the originating summons are not post election matters Grounds 1, 2, 3 and 4.
(ii) Whether the learned trial Judge was right in determining the issue of jurisdiction not to have taken into consideration the affidavit in support of the originating summons and to have relied only on the counter affidavit filed by the Appellants against the 3rd Respondent?s notice of preliminary objection, after having erroneously struck out paragraphs 4, 5, 6 and 7 of the said counter affidavit as offending against Section 115 (2) of the Evidence Act, 2011 and proceeding to rely on the remaining four paragraphs to determine the issue of jurisdiction – Grounds 5, 6 and 7.
(iii) Whether the ruling of the learned trial Judge was not a nullity, the same having been delivered on 17 December 2012, 207 days after final addresses had been taken on 24 May 2012 contrary to the requirement of Section
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294 of the 1999 Constitution of the Federal Republic of Nigeria – Ground 9.
The 3rd Respondent presented the following issues for determination from the Notice of Appeal and the Respondent’s Notice of Intention to contend that judgment be affirmed on grounds other than those relied on by the Court below which was filed on the 29/08/13 as follows:
i. Whether the Appellants (as Claimants before the lower Court) have the requisite locus standi to institute the action or to seek the reliefs sought in the action (Distilled from Ground 1 of the 3rd Respondent’s Notice of Intention to Contend that Judgment Should Be Affirmed On Grounds Other Than Those Relied On By The Court Below dated 29th August, 2013).
ii. Was the lower Court right when it declined jurisdiction to hear the Appellants’ claim on the basis that the action is essentially a post election matter and that reliefs 1 and 2 of the Originating Summons are “unjustifiable” or injusticiable? (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal)
iii. Whether it was necessary for the lower Court to consider the affidavit in support of Originating Summons for the purpose of
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determining its jurisdiction to hear and grant reliefs of the nature sought by the Appellants? (Distilled from Grounds 5, 6 and 7 of the Notice of Appeal)
iv. Whether the Ruling of the Trial Court delivered on December 17, 2012 is invalidated by the alleged non-compliance with Section 294 of the 1999 Constitution (as amended) (Distilled from Ground 9 of the Notice of Appeal).
The Ground for the Respondent’s Notice to contend states as follows:
GROUND 1
The Appellants (as Claimants before the lower Court) lack the requisite locus standi to institute the action or to seek the reliefs sought in the action. Accordingly, all the reliefs are un-justiciable at the instance of the Appellants (as claimants).
PARTICULARS:
1. The questions and the reliefs contained in the appellants/claimants’ Originating Summons dated 30th November 2011 are of a public nature.
2. The Appellants, as ordinarily residents of Ikorodu, Lagos State failed to demonstrate existence of any peculiar injury, right or interest which was above that of the general public and which is to be protected by the grant of the reliefs sought.
3. The suit in its
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entirety is academic and hypothetical because the reliefs sought have no utilitarian value to the Appellants (claimants) even if the judgment is entered in their favour.
The 4th – 15th Respondents formulated the following issues:
a. Whether in view of the facts, appellants claims and the applicable law, the trial Court was right in holding that the claimants’ case is only justiciable at the Election Tribunal
b. Whether the trial Court did not properly consider the appellants’ originating processes before declining jurisdiction.
c. Whether the ruling of the trial Court was in violation of Section 294(1) of the 1999 Constitution.
As noted above the 3rd Respondent raised a Preliminary Objection challenging the competence of grounds of the appeal on the following grounds:
i. Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Notice of Appeal are narrative argumentative and incompetent.
ii. Grounds 1, 2, 3 and 4 are vague, inherently contradictory and unrelated to the Ruling of the lower Court.
iii. Issue 1 of the Notice of Appeal formulated from contradictory Grounds of Appeal is incompetent and ought to be struck out.
iv.
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Abandonment of Grounds 6 and 8 of the Notice of Appeal
v. The Court of Appeal lacks the Jurisdiction to hear the Appellants’ suit as the Court of first instance.
The Court shall resolve the preliminary objection first and if the appeal survives then I shall proceed with the substantive appeal. However, if the Preliminary objection succeeds the appeal will have to abort at that stage.
The first argument raised by Learned Counsel to the 3rd Respondent is that Grounds 1 – 9 of the Appellants’ Notice of Appeal and their particulars violates Order 5 Rule 2 and 3 of the Court of Appeal Rules for being argumentative and narrative and therefore urged the Court that they be struck out. He referred to the case of ADAH V ADAH (2001) 5 NWLR (PT.705) 1. Yet again, learned counsel submitted that Grounds 1, 2, 3 and 4 are vague, inherently contradictory and unrelated to the ruling of the lower Court and that the self-contradiction affects the competence of the Notice of Appeal. Further posited that based on the contradictions, it is clear that the said grounds do not arise from the ruling of the lower Court, citing the case of ONAFOWOKAN V WEMA BANK PLC
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(1987) 3 NWLR (PT.61) 538, IWUOHA V NIPOST LTD (2003) 8 NWLR (PT.822) 308 and that the Appellant’s Issue 1 formulated from the contradictory grounds of Appeal is Incompetent and should be struck out. Furthermore, counsel to the 3rd Respondent submitted that Grounds 6 and 8 of the Notice of Appeal ought to be struck out as abandoned because no legal argument was canvassed in support of them. Finally, counsel contended that the Court of Appeal lacks the jurisdiction to hear the Appellant’s suit as the Court of first instance under S. 16 of the Court of Appeal Act because the 3rd Respondent as well as other Defendants at the – lower Court have not filed their defence before the lower Court, relied on the case of ONYERO v NWADIKE (2011) 18 NWLR (Pt.1279) 954, OBI v INEC (2007) 11 NWLR (PT.1045) 560, WILLIAMS V. NWOSU (1994) 3 NWLR (PT.331) 156.
In response to the 3rd Respondent’s Preliminary objection to the appeal, the Appellants submitted that a ground of appeal that is merely argumentative is not enough to render it incompetent if it discloses notable issues, referred to DAKOLO V DAAKOLO (2011) 7 SCM 54. That the 3rd Respondent did not identify any one
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ground of appeal as argumentative as it was only the particulars of the grounds of appeal that were complained of. That ground 9 alone is enough to sustain the appeal and that the 3rd Respondent should have brought a Notice of motion to strike out the alleged defective grounds. Further submitted that there is nothing vague or contradictory in grounds 1, 2, 3 and 4 of the Notice of Appeal as they are complaints based on jurisdiction. With respect to the abandonment of grounds 6 and 8 of the Notice of Appeal, the Appellants submitted that ground 6 is covered by issue 2 formulated in the Appellant’s brief and that the 3rd Respondent’s argument with respect to the powers of this Court to hear this case under S. 16 of the Court of Appeal Act is false and misleading, referred to FAMFA OIL LTD V AGF (2003) 18 NWLR (Pt.852) 453, OBI V INEC (2007) 11 NWLR (PT.1045) 560.
RESOLUTION
The 3rd Respondent objected to all the grounds of appeal on the basis that they are argumentative, narrative and consequently incompetent. A competent ground of appeal has been described as a complaint against the judgment of the trial Court appealed against. So generally, a ground
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of appeal must arise from a decision of the trial Court or the judgment appealed against. A competent ground of appeal was described in the case of COOPERATIVE COMMERCE BANK PLC & ANOR V. JONAH DAN OKORO EKPERI (2007) 3 NWLR (PT.1022) 493 as follows:
“It is settled that for a ground of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in this instant appeal, the same becomes incompetent and liable to be struck out.”
The purpose of a ground of appeal is to give adequate notice of the complaint against the judgment to the Respondent. Going by the Rules of Court, grounds of appeal are required to be of a particular standard and specification, Order 6 Rule 2(3) provides as follows:
“The Notice of Appeal shall set forth concisely and under distinct heads the ground upon which the Appellant intends to rely at the hearing of the appeal
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without argument or narrative and shall be numbered consecutive.”
Particulars of error are meant to give the Respondent and the Court specific misdirection or errors alleged in the ground of appeal to enable the Respondent meet the case of the Appellant and the Court to determine the nature of the error or misdirection, see HAJIA AISHA KAMARIAM MONGUNO V BLUEWHALES & COMPANY & ORS (2010) LPELR – 4502(CA) and OGUNDARE OSASONA v. OBA ADETOYINBO AJAYI & ORS (2004) LPELR ? 2790 (SC).
The contention of the 3rd Respondent on the grounds of appeal is that they are argumentative and the particulars contradictory. There are 9 grounds of appeal and they are reproduced here shorn of their particulars.
GROUND 1
The learned trial judge erred in law when she declined jurisdiction to hear the Claimants’ claim on the basis that same constitute a postelection matter.
GROUND 2
The Learned trial Judge erred in law when she held in paragraph 2, at page 18 of the ruling thus:
“I have however perused the records of the Court as I am competent to do in order to arrive at just decision in this matter … I have found that this
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Originating process was taken by the Claimant against the Defendants on 29th November, 2011. The record also shows that the election took place on the 22nd October, 2011. These facts are admitted by the parties both the Applicants and the Respondents… the Prayers 1 and 2 ordinarily should have been taken by a competent Court before the election. It is obvious and clear that issues of nomination, withdrawal and or submission are all matters of incidence which took place before the election proper… the election had taken place therefore the action is not justifiable.”
GROUND 3
The learned trial Judge erred in law and also breached the Claimants’ right to fair hearing in her failure to consider at all, the Claimants’ grievances as presented before the trial Court, before declining jurisdiction and striking out the Claimants’ claim.
GROUND 4
The learned trial Judge erred in law when she held in paragraph 1, at page 20 of the ruling thus:
“As earlier stated in this ruling and more so that post election matters are not matters for this Court to hear or entertain. There is an established and appropriate Tribunal clothed with jurisdiction
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on such matters… The court will therefore decline to hear or determine these prayers. This is a judicial trap set by the Claimant/Respondent which the Court has refused to fall into and I so hold.
The prayer whether the High Court has jurisdiction in this instant case is answered in the negative having taken strength from the authorities and principles of law herein addressed.”
GROUND 5
The learned trial Judge erred in law when she held in paragraph 4 at page 15 of the ruling that:
“Having settled this issue, I will now proceed to the Applicants Applications which I have resolved to take together being that the issues raised there in are one and the same.
This in effect shows that the Claimant/Respondent Counter Affidavit before this Court in this (sic) instant
Applications are as follows:
1. That I am the 1st Claimant herein and I have the permission of the 2nd Claimant to swear to this affidavit.
2. That paragraphs 7 and 9 of the affidavit in support of the Notice of Preliminary Objection are not true.
3. That no election was conducted into the positions of Chairman and Vice Chairman of Ikorodu Local Government
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Area.
4. That I depose to this affidavit in good faith in accordance with the Oaths Law of Lagos State.”
GROUND 6
The lower Court erred in law and thus came to a perverse decision in its holding that paragraphs 4, 5, 6 and 7 of the Claimants’ Counter-Affidavit before it offend Section 115 of the Evidence Act, 2011 in that the paragraphs contained conclusions and arguments.
GROUND 7
The learned trial Judge erred in law in determining the question of jurisdiction by not taking into consideration the affidavit in support of the originating summons and by law her consideration should have been limited only to the contents of the originating summons and depositions in the affidavit in support of same as required by law.
GROUND 8
The learned trial Judge erred in law when she held in paragraph 4 at page 18 of the ruling as follows:
“The election had taken place therefore the action is not justifiable. A suit is justifiable when the Claimant has referred to a real and substantial controversy or breach of his fundamental rights which is right for the Court’s determination….In the instant case, the Claimant/Respondent have
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(sic) not presented any justifiable claim which can be judicially addressed by the Court and I so hold..
GROUND 9
The decision of the learned trial judge is a nullity, having delivered same on 17 December 2012, 207 days after final addresses on 24 May 2012 contrary to the requirement of Section 294 of the 1999 Constitution and the Appellants have suffered a miscarriage of justice by reason thereof.
It is obvious that from a careful examination of the grounds of appeal, they are not what the 3rd Respondent claims they are. The complaint is founded on the particulars and not the grounds of appeal. It is trite that there is no rigid rule on how particulars of error should be couched, it is also trite that grounds of appeal can stand on their own as long as they represent the complaint of the Appellant against the judgment. This was reiterated in the case of PROF. E. A. ABE v UNIVERSITY OF ILORIN & ANOR (2013) LPELR – 20643 (SC) thus:
“Learned Counsel may be reminded that grounds of appeal may stand on their own once they represent an appellant?s complaint against the decision he is not satisfied with and in respect of which grouse he
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seeks the appellate Court?s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent ”
See also BEST (NIG) LTD v BLACK WOOD HODGE (NIG) LTD & 2 ORS (2011) NSCQLR VOL.45 849. Again this Court in the case of BOBI V. AKPODIETE & ORS (2013) LPELR – 21036(CA) held thus:
“There is no doubt that there were repetitions in the particulars of the grounds of appeal which made them prolix and appear argumentative however, they effectively convey the precise complaint of the appellant against the judgment of the trial Court.”
The essence of the particulars is to set out aspects of the judgment appealed against that the Appellant is not happy about. The apex Court explained it in the case of DAKOLO v DAKOLO (2011) LPELR – 915 (SC) in the following words:
“Grounds of appeal are to be differentiated from their particulars – while the grounds of appeal must clearly state what the Appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error
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or misdirection identified or complained of in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issues arises for consideration by the Court.”
It is therefore necessary that a Court should act in the interest of justice when faced with such inelegantly or badly drafted grounds and particulars of error, see OWNER OF MV ARABELLA v. NIG. AGRICULTURAL INS. CORP (2008) 4 – 5 SC (PT.II) 189.
Flowing from the decisions cited above, the complaint of the 3rd Respondent against the grounds of appeal lack merit.
There is also the issue contending that the Appellant abandoned grounds 6 and 8 of the Notice of appeal. It trite that issues for determination must take root from the grounds of appeal. Any ground of appeal that does not give rise to an issue for determination is deemed abandoned. See VICTOR V. STATE (2013) LPELR – 20749 (SC). It is clear on the record and the Appellants brief that Ground 8 did not give rise to any of the 3 issues formulated or determined by this Court in the Appeal. It is without any
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doubt abandoned and therefore it is hereby struck out. Ground 6 was also alleged to have been abandoned because no arguments were proffered in support of same. The principle is for a ground to generate an issue and or the issue to arise from a ground. An issue can arise from a combination of Grounds as long as the grounds are competent grounds. Also, an issue cannot be valid when it arises from a combination of competent and incompetent grounds. In this case, issue 2 is said to have arisen from issues 5, 6 and 7. It is therefore competent. There is no authority insisting that arguments must run through the grounds of Appeal one by one or serially because arguments are thereafter based on issues for determination and not grounds of appeal, see U. A. C. (NIG) LTD V. FASHEYITAN (1998) 11 NWLR (PT.573) 179. The objection on ground 6 is not made out.
The last issue contends that this Court lacks the jurisdiction to invoke Section 15 of the Court of Appeal Act to hear the substantive suit as the appeal did not arise from a judgment on the merit. That the main claim of the Appellants was not heard because the Respondents did not join issues with the Appellant on
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the main claim before the main suit was struck out for want of jurisdiction.
The general powers of this Court are statutorily provided by Section 15 of the Court of Appeal Act and the application of the said power under Section 15 has received judicial pronouncement in EZIGWE V NWAWULU (2010) 4 NWLR (PT.1183) 159 where the apex Court said:
“Section 15 of the Act now used to be Section 16 in numerous cases in which the Court had invoked this section. The operative words in Section 15 of the Court of Appeal Act are: –
‘The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal.’ Before the Court of Appeal can invoke and exercise powers under Section 15 such under mentioned factors must exist –
i. The question must be a ground of appeal
ii. The High Court from which the matter emanates must have jurisdiction in the matter. Jurisdiction of the High Court is the prerequisite for the invocation of the provisions of Section 15 by the Court of Appeal.
iii. Availability of the necessary materials to consider and adjudicate in the matter
iv. The length of time
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between the disposal of the action at the trial Court and the hearing of the appeal.
v. The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties in the case.”
From the statutory provision and the conditions for the applicability of the said section, it clear that it is not the type of issue that can be raised as a preliminary objection to the hearing of an appeal. It has nothing to do with competence of the appeal or jurisdiction. Failing to come under the circumscribed space for a Preliminary objection, the objection on whether Section 15 of the Court of Appeal Act can be invoked is wrongly raised at this stage. It can only be an issue in the determination of a substantive appeal and usually at the end of the determination when the Court can decide whether to invoke such powers if the conditions for its applicability are made out or not. A Preliminary objection is strictly meant to object to the hearing of the whole appeal and to terminate same on the ground that the appeal is incompetent. See the
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case of GENERAL ELECTRIC COMPANY V AKANDE (2010) 18 NWLR (PT.1225) 596 where the apex Court held as follows:
“The purpose being to bring the hearing of the Appeal to an end for being incompetent or fundamentally defective. Consequently a successful Preliminary Objection terminates the Appeal.”
Consequently, the Preliminary objection partially succeeds and Ground 8 of the Notice of Appeal from which no issue is generated is deemed abandoned and is hereby struck out.
Now to the main appeal, the Appellant formulated 3 issues for determination and for expediency, it would be appropriate to adopt the said issues for determination in this judgment. In doing so the Court shall take into account the Notice of Intention to contend that the judgment should be affirmed on grounds other than those relied on by the lower Court.
ISSUE ONE
“Whether the learned trial judge was right to have held that the Appellants’ claim constitutes a post election matter, thus declining jurisdiction after having held that prayers 1 and 2 of the originating summons are not post election matters.”
The major submissions of the Appellants with respect to this
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issue is that a close look at the pleadings filed at the lower Court will reveal that the Appellants are seeking for an interpretation of the relevant provisions of Section 7(4), 197 (1) (b), 197(2) and Part II, Paragraphs 3, 4 (a) and (b) of the Third Schedule of the 1999 Constitution as well as Sections 9 and 156 of the Electoral Act 2010 as they relate to local government council/area. Further submitted that the Appellants’ claim is predicated on their right to vote and be voted for and that the nature of a claim must be determined from the pleadings, cited INAKOJU & ORS v ADELEKE & ORS (2007) 1 SCM 1. Contending that their rights to vote and be voted for had been frustrated including also the use of a pie chart for their illustration, the Appellants submitted that the 3rd Respondent failed to conduct election into Ikorodu Local Government Council / Area but instead treated the election conducted into Ikorodu Central as election for Ikorodu Local Government Council. They went on to further submit that the trial Court erred when it treated their prayers 1 and 2 as pre-election matters which must be instituted before the election had taken place,
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placing reliance on the case of DINGYADI V. INEC (2011) 4 SCM 87. That there was no way the Appellants would have known that the 3rd Respondents will fail to conduct election into the Ikorodu Local Government Council before the election had taken place and to have commenced these proceedings before the cause of action arose would have been premature and unsustainable, referred to ONUEKWUSI V. METHODIST ZION CHURCH (2011) 3 SCM 167, PETER OBI V INEC & ORS (2007) 8 SCM 83. With respect to the other prayers claimed by the Appellants at the trial Court, the Appellants submitted that the claims are both principal and ancillary. That the principal claim is simply asking the Court to declare that the 3rd Respondent failed to perform its constitutional duty to conduct election into the office of the Chairman and Vice Chairman in Ikorodu Local Government Council/Area which the lower Court has jurisdiction to entertain and that the incidence of the ancillary claim relating to election matter cannot strip the Court of its jurisdiction, citing TUKUR V GOVT GONGOLA STATE (1989) 3 NSCC 225, IGWE V EZEANOCHIE (2010) 7 NWLR (PT.1192) 61, INEC V NYAKO (2011) 12 NWLR
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(PT.1262) 4410, AG ANAMBRA STATE V AG FEDERATION (2007) 12 SCM (PT 1) 1.
However, counsel to the 3rd Respondent submits that a close look at the reliefs sought shows that the action was instituted with an ulterior motive of reversing the outcome of the elections and that an action complaining of unlawful exclusion from election or raising questions as to whether a person was validly elected is a post election matter. He referred to the case of AGBAKOGBA V INEC (2008) 18 NWLR (Pt.1119) 489, OLOFU v. ITODO (supra) in proof of this assertion. He submitted that the purported pre-election matters from reliefs 1 and 2 were rightly concluded to be unjustifiable and injusticiable because they have been overtaken by events on the ground that the election had been conducted and also in view of the fact that the Appellants have no legal right to protect, relied on the case of IBRAHIM v GAYE (2002) 13 NWLR (PT.784) 267. Learned Counsel was also of the view that the lower Court did not make any pronouncement on the issue of the status or constitutionality of the Local Government Development Areas of Lagos State and this cannot therefore form the basis of appellate
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review, cited SARAKI V. KOTOYE (1992) 9 NWLR (PT.264) 156.
According to the counsel to the 4th – 15th Respondent, the trial Court was right in declining jurisdiction on the basis that the Appellants’ claim was not justiciable before it. That a close look at the claims show that the main claims are embodied in reliefs 3, 4, 5 and 6 while reliefs 1 and 2 are accessory claims. Although reliefs 1 and 2 are ancillary reliefs, counsel submitted that they are inseparable from the main reliefs, relied on TUKUR V GOV. GONGOLA STATE (1997) 6 NWLR (Pt.510) 549, DAGAZAU V BOKIR INT’L CO LTD (2011) 14 NWLR (PT 1267) 261. Further submitted that based on the arguments of the Appellant that the Lagos State Independent Electoral Commission (LASIEC) is established by the 1999 Constitution, then LASIEC becomes an agency of the Federal Government and consequently, only the Federal High Court will have jurisdiction to hear or entertain the matter.
Furthermore, counsel submitted that pursuant to S.7 (1) of the 1999 Constitution, the state government has the powers to make laws to govern the Local Government Authorities and that by S. 2 of the Local Government Election
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Tribunal Law, the Appellants ought to have gone to the Tribunal by way of a Petition.
RESOLUTION:
The contention here is that the trial Judge having found that prayers 1 and 2 are not strictly post election matters, it still went ahead to strike out the suit for want of jurisdiction. The trial Court held thus:
“It is obvious that the 1 and 2 claims fall short of the type of cases that fall under the categories of cases that Local Government Tribunal will hear or entertain
The above prayers are pre election matters which the Tribunal lacks jurisdiction.”
The trial Court went on in the judgment to hold that Prayers 1 and 2 ordinarily should have been taken by a competent Court before the election. The contention of the Appellants is that having found that they are pre-election issues, it should have determined them. Going by the arguments of the Appellants, they concede that except for Questions 1 and 2, the other questions are fundamentally post – election matters that can only be determined by an election Tribunal and not the regular Court as the trial Court in this case.
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The said questions were reproduced earlier.
Jurisdiction is a threshold matter and for a Court to determine any matter, it must first of all have the requisite jurisdiction to do so otherwise it all amounts to a nullity. See the case of ELABANJO V DAWODU (2006) 15 NWLR (PT.1001) 76 and EGHAREVBA v ERIBO (2010) 9 NWLR (PT.1199) 411 (SC).
Sources of jurisdiction are settled, they were clearly identified by this Court in the case of EVANS AMAECHI NNADI V DR. HERBERT OJI & ORS (2010) LPELR – 4627 (CA) thus:
“Courts are always conferred jurisdiction by the statute or law. Courts in this country derive their jurisdiction from any of the following sources:
(i) the Constitution; or
(ii) The enabling statutes setting them up; or
(iii) Other existing statutes which contain random provisions conferring jurisdiction on them or lack of jurisdiction of certain Courts.
To buttress this point further, the Supreme Court in the case of IFEAJUNA v. IFEAJUNA (2000) 9 NWLR (PT.671) 248 held at PG.277 that the jurisdiction of a Court is donated by statute including the Constitution and a Court – cannot add or subtract from the provisions of a
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statute. It further held that no Court can confer jurisdiction to itself and exercise same unless it is so conferred with the same by law.
The trial Court in determining the 2 preliminary objections looked at the reliefs sought by the Appellants in the Originating Summons (they were reproduced earlier) and held that prayers 3 – 6 all have roots in the Local Government elections conducted by Lagos State Government.
To say that there was failure to conduct elections in Ikorodu Local Government Area while the 4th – 15th Respondents had already been returned as duly elected in the alleged council elections is to challenge the conduct of the elections and this definitely, is a post-election issue. Such are statutorily controlled by the LASIEC Law.
To also seek for a mandatory injunction for the conduct of elections can only come from the Local Government Election Tribunal as no Court has been statutorily mandated to hear such matters and make the kind of orders prayed for in the suit of the Appellants. Only the Tribunal can remove the 4th – 15th Respondents from office as no Court can do so in the circumstances presented here especially not at the
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instance of the 2nd Appellant who was a candidate at the said election. If I may ask, is it after failing at the election conducted by the 3rd Respondent that Appellants suddenly realized that they can challenge the legality of the 3rd Respondent? I am in agreement with the trial judge that regular High Courts lack jurisdiction to grant the prayers sought for or make the declaratory orders prayed for. In fact, the 3rd Respondent captured it so well under its issue II when it submitted that in election dispute claims and parlance, the reliefs were basically that of exclusion of the Appellants and undue return of 4th – 15th Respondents. These are not general litigation issues. Elections can only be invalidated by a Tribunal set up to determine post election issues because election petitions are sui generis. As to what constitutes “Pre” and “Post” election matters, case of MR. MICHAEL ADEJOH ITODO V HON. YUNUSA GABRIEL OLOFU &ORS (2010) LPELR -4342 (CA) is apposite, it held thus:
“Pre – election dispute encompasses the stage of conducting party primaries to holding of actual elections on the other hand, post-election disputes contemplates actual election
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which is challengeable on the ground of undue election or undue return albeit on specific grounds prescribed.”
See also SULAIMAN USMAN & ANOR V ALHAJI AHMAD MUHAMMAD MACCIDO & ORS (2009) LPELR – 8517(CA).
In the instant appeal the relevant section in the LASIEC Law is Section 1 and 2(1) which provides as follows:
(1) There shall be established in the state one or more Election Tribunals to be known as local government election Tribunals (referred to in this law as an “Election Tribunal) which shall to the exclusion of any other Tribunal or Court, have original jurisdiction to hear and determine-
a) Election petitions as to whether a person has been validly elected as chairman or councilor of a Local Government Council.
2(1) No Local Government election and no return to Local Government shall be questioned except by a petition complaining of an undue election or undue return presented to the Election Tribunal in accordance with the provisions of this law”
The provision quoted above is very clear and the trial judge was on solid ground to hold that the reliefs are post-election matters which can only be determined by a duly
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constituted election Tribunal as conceded by the Appellants. For the purposes of the said elections having been conducted, the issue of the legality of the 3rd Respondent has become academic and a moot issue and will not be entertained, see ACTION CONGRESS V. INEC (2007) 18 NWLR (PT.1065) 50 and PLATEAU STATE v AG FEDERATION (2006) 3 NWLR (PT.967) 1419.
On the 1st and 2nd prayers which the Court held to fall outside the jurisdiction of the election Tribunal, it still declined jurisdiction on the basis that though pre-election issues which a normal Court should determine, they have been overtaken by the conduct of the election. To challenge the legality or existence of LASIEC and its power to conduct elections should come before the conduct of the said elections. The arguments of the Appellants that they could not have known that elections were not to be conducted for Ikorodu Local Government Council before the election is flawed. Elections are not conducted over night. It goes through different stages including periods of publicity. The Appellants cannot feign ignorance as to whether elections were to be so held, see the definition of election in the case
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of YARDUA V YANDOMA (2014) LPELR – 24217 (SC). And indeed, election consists of a series of long drawn out stages and processes ending in declaration of a winner, in this case the 4th – 15th Respondents.
I also state that LASIEC is not an agency of the Federal Government, factors that determine an agency of the Federal Government were clearly stated in PAUL AMIOLEMHEN & ORS. V NIGERIA GAS COMPANY & ANOR. (2012) LPELR – 7957 (CA) thus:
“(i) Whether the Federal Government has control over it; and
(ii) Whether the functions of such organization are aimed at affecting the policies of the Federal Government.”
It is therefore too late in the day for the Appellants to want to litigate on the said issues. The elections had been duly conducted and that explains the joinder of the 4th -15th Respondents who were returned by the 3rd Respondent after the elections.
I however disagree with the 3rd Respondent when it submitted that the issue is not justiciable. The trial Court has the jurisdiction to determine the Validity of the law creating the 3rd Respondent. It will not do so at this stage only because it is coming at the wrong time and
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not because it cannot be determined. I say coming at the wrong time because it became an appendage of election matters and the misjoinder of issues has tainted the question or the validity of the said law.
One fundamental point that must be made at this stage is the effect of timing on institution of the suit. The sui generis nature of matters relating to election has unwittingly made time of taking steps an important element. An otherwise legitimate claim in ordinary civil action fails to fly in election matter for failure to act within certain time lines and this point was made clear in the case of HASSAN V ALIYU (2010) 17 NWLR (PT.1223) 547 S,C. where ONNOGHEN J.S.C. at page 599 said as follows;
?In an election related matter time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminal proceedings?.
The right to pursue a pre- election matter ceases after the holding of the election except and only if the action was filed before the holding of the election.
That was the point made by the trial Court. In such cases public policy demands that those
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returned should be allowed to concentrate in service delivery and not be distracted by such stale actions.
Related to this is the issue of the 3rd Respondent when it questioned the locus standi of the Appellants in this case. The basic question to ask is whether the Appellants have shown sufficient interest to warrant their seeking declaratory reliefs as per the claim. The Court in the case of SHIBKAU V A. G ZAMFARA STATE (2010) 10 NWLR (PT.1202) 312 at 339 held thus:
?Again in order to claim declaratory reliefs, a plaintiff must have the necessary standing to sue. He must have specific or particularized legal rights or interest of his own which must be in issue and in need of protection, pursuit, prosecution or defence. Without this, there is nothing relating to his civil rights and obligations, which the Court can pronounce upon and make declarations thereon.”
Here, I disagree with the 3rd Respondent because the right to vote is one that is easily discernable by the ownership of a voters’ card and if anybody claims to be such, the burden is on him to so prove. The locus standi principle has been liberalized, see the case of ATTORNEY
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GENERAL OF LAGOS STATE V EKO HOTELS LIMITED & ANOR (2006) LPELR- 3161 where the Court held as follows:
“It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit before the Court. One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking for the redress or remedy will suffer some injury or hardship arising from the litigation. If the judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard as he has locus standi to be heard.”
Parties have admitted that the 2nd Appellant particularly was a candidate at the elections conducted by the 3rd Respondent whose existence is challenged herein. This gives the Appellant sufficient interest to sue. However this standing to sue is wrongly combined with the subject matter jurisdiction of the trial Court. I did find that the trial Court lacked the jurisdiction to hear election matters and reliefs 1 and 2 which could conveniently come before the trial Court was not filed before the elections conducted by the 3rd Respondent. This issue of
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the 3rd Respondent’s notice to contend on this point fails.
Also related to this issue is the contention that the suit constitutes an academic question and of no utilitarian value to the Appellants. In resolving this issue, one will unwittingly delve into the substantive suit which was not determined by the trial judge and therefore this Court must limit itself to the question of jurisdiction upon which this appeal stands. When a Court lacks jurisdiction, the question of the suit having no utilitarian value to the claimant cannot arise.
Consequently, I resolve issue one against the Appellants.
ISSUE TWO
“Whether the learned trial judge was right in determining the issue of jurisdiction not to have taken into consideration the affidavit in support of the originating summons and to have relied only on the counter affidavit filed by the appellants against the 3rd Respondents notice of preliminary objection, after having erroneously struck out paragraphs 4, 5, 6 and 7 of the said counter affidavit as offending against Section 115(2) of the Evidence Act, 2011 and proceeding to rely on the remaining four paragraphs to determine the issue of
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jurisdiction.”
In arguing this issue the Appellants challenged the trial Court for striking out some paragraphs of the counter affidavit for offending the Evidence Act. If the Court should not have considered the counter affidavit, why then, would it be an issue that some paragraphs of the counter affidavit were struck out for offending the Evidence Act? This is assuming that the whole counter affidavit is not to be considered by the Court but only the supporting affidavit to the Originating summons which contains the facts giving rise to the cause of action.
Counsel to the 3rd Respondent posited that where the lower Court has a jurisdictional question to resolve, the issue can be determined by consideration of the reliefs sought in the Originating Summons and not the affidavit in support, referred to the following cases WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIG (1987) 1 NSCC 133, ABDULHAMID V AKAR (2006) 13 NWLR (PT.966) 144, NURTW V RTEAN & ORS (2012) LPELR ? SC.22/2005. That a Court must refrain from making a finding in an interlocutory application that may prejudice the substantive case, cited UNITED – SPINNERS
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LTD V C.B. LTD (2001) 14 NWLR (PT.732) 195, DPPC LTD V BPC (2008) 4 NWLR (PT 1077) 376. Counsel also submitted that it is not mandatory for a lower Court faced with a jurisdictional question to consider same with the substantive suit as the question of priority of hearing applications or consolidation of processes is entirely at the discretion of the lower Court.
On the other hand, counsel to the 4th – 15th Respondent contended that the trial Court properly considered all the processes relevant to the determination of the originating summons before striking out the same for want of jurisdiction and that the onus was on the Appellants to show this Court the averments in their affidavit which would have caused the trial Court to rule otherwise if the affidavit was considered. He further posits that it is the Claimant’s claim or reliefs that determines jurisdiction not his averments, referred to CRUTECH V OBETEN (2011) 15 NWLR (PT 1271) 588, EBEBI V SPEAKER B.S.H.A (2012) 5 NWLR (PT.1292) 1, DAGAZAU V BOKIR INT’L CO LTD (2011) 14 NWLR (PT.1267) 261.
The quarrel of the Appellants is that the trial Court did not consider their affidavit in support of the
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originating summons in determining the issue of jurisdiction. That the trial Court relied more on the counter affidavit the Appellants filed in response to the preliminary objection filed by the 3rd Respondent. They relied on INAKOJU V ADELEKE (2007) 1 SCM 1 @ 58 where the apex Court held thus:
“There is a common agreement that in the determination of jurisdiction, the Court process to be used is the pleadings of the plaintiff, which is the statement of claim. As this action is commenced by originating summons, the Court process to be used is the affidavit in support of the summons. In other words, the Court will not examine a counter affidavit.?
It is worthy of note to mention that the Appellants referred the Court to the counter affidavit and not the supporting affidavit which was already before the Court and the Court could ordinarily view it towards doing justice. That settled, I think there is no straight jacket formula for determining jurisdiction as long as relevant materials placed before the Court are considered. It may also depend on whether it is an issue challenging the competence of the following:
i. Parties
ii. Subject
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matter/ cause of action
iii. Competence of the Court
iv. Competence of the process where precondition must be
fulfilled like pre-action notice.
In this case the ruling dwelt so much on subject matter or cause of action. It is trite that jurisdiction is determined from the claimant’s claim before the Court and it is the relevant law at the time the action is instituted. Here the LASIEC law is the law relevant to the claim at the time the Appellants filled the originating summons. The reliefs revolve around the said Law. The jurisdiction to so determine the suit is dependent on the state of the law conferring jurisdiction at the point in time the action was instituted. The Supreme Court in the case of ABDULHAMID v AKAR (2006) 13 NWLR (Pt. 996) 144 held as follows:
“The Court of appeal was right to have considered the reliefs or claims only, and without reference to any other thing. It settled and a fundamental principle that jurisdiction is determined by the plaintiff’s claim or relief. In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction
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conferred on the Court.”
See also NURTW V RTEAN & ORS (2012) LPELR ? 7840 (SC).
Therefore the trial judge’s reliance on the reliefs to determine jurisdiction cannot be faulted. Even though the affidavit in support of the originating summons is a process before the Court and could be considered, it is majorly evidence in support of the claim or reliefs and therefore cannot take the place of the reliefs.
Consequently, issue two is resolved against the Appellants.
ISSUE THREE
“Whether the ruling of the learned trial Judge was not a nullity, the same having been delivered on 17 December 2012, 207 days after final addresses had been taken on 24 May 2012 contrary to the requirement of Section 294 of the 1999 Constitution of the Federal Republic of Nigeria”
It was submitted by the Appellants that the decision of the lower Court is a nullity having been delivered 207 days after final addresses were taken contrary to S. 294 (1) of the 1999 Constitution. They further submitted that they had suffered miscarriage by this delay because the case was on several occasions adjourned without notice to the Appellants and that when the
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matter was finally heard, the trial Court called for a re-argument of the preliminary objection without prior hearing notice thereby breaching their right to fair hearing. Also submitted that service of a pre-hearing notice is a pre-condition to the exercise of a Court’s jurisdiction, referred to OBU V ARCHIBONG (2010) 2 NWLR (PT.1179) 460, OKOGI v OKOH (2010) 9 NWLR (PT 1199) 311.
However, 3rd and 4th -15th Respondent contends that the 3rd Respondent has not shown any occurrence of miscarriage of justice. He posits that the delay was due to the death of the judge’s biological brother in the Dana Air Crash and that since the Appellants counsel was physically present and fully participated in the proceedings, his assertion that he was unprepared to adopt his written address is untenable. That having consented to the procedure and participated in the proceedings, the Appellants have waived their rights to complain, SAUDE V ABDULLAHI (1989) 4 NWLR (Pt.116) 387, ASHIRU NOIBI V. R.J. FIKOLAATI & ANOR (1987) 1 NWLR (Pt.52) 619. The 4th ? 15th Respondents also toed the line of the 3rd Respondent in submitting that the Appellants suffered no miscarriage
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of justice by the procedure adopted by the trial Court and that the complaint is an afterthought, and unacceptable.
RESOLUTION:
Section 294 (1) of the 1999 Constitution provides as follows:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decisions within seven days of the delivery thereof,”
The Appellants submitted that the ruling was delivered 207 days after addresses and ruling was reserved. They opined that Section 294(5) of the 1999 Constitution cannot save the ruling. The subsection provides that:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”
The above subsection is a proviso to the 90 days requirement. Section 294 (1)
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and (5) has received judicial attention in a number of cases. The Appellants admitted that there were adjournments from the 12th July, 2012 to 25th October, 2012 to 29th November, 2012 and ruling finally delivered on 17th December, 2012. They said the adjournments were not done in the open Court but they admitted having representation in Court on the 29th November, 2012 when the Preliminary Objection was reargued all over again.
I agree with the appellant that service of a hearing notice on parties is a precondition to the Court exercising jurisdiction, see OBU V ARCHIBONG (2010) 2 NWLR (PT.1179) 460. However, where the party is aware of the next adjourned date then there is no need for service with a hearing notice and in that case jurisdiction cannot be in issue, see PADAWA V JATAU (2002) 5 NWLR (PT.813) 247 where the Court held thus:
“Hearing Notice is nothing short of that Court’s process by which a party to the proceedings is notified of the date the matter has been fixed in Court, where he is not otherwise aware of such date. Except where the defendant and or his counsel are in Court, the next adjournment shall be brought to his or his counsels
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notice. The apex Court in S & D CONSTRUCTION COMPANY LIMITED V CHIEF BAYO AYOKU & ANOR (2011) LPELR – 2965 (SC) held thus:
“It is trite law that hearing notice will not issued or served on a party who already knows or is reasonably presumed to have known of a date on which a matter is slated for hearing?.
The record of appeal at page 109 – 110 clearly shows that the Appellants counsel was in Court when the Appellants application for adjournment to enable them file a response to the Notice of Preliminary objection of the 4th – 15th respondents was refused. Ruling was then delivered on the 17th December, 2012.
The record is clear that there was no call on parties to re-adopt their briefs. It is obvious that proceedings continued even after the adoption of counsel written addresses. To therefore allege that there were no proceedings between adoption to ruling is disappointingly false. A counsel need not mislead the Court in order to score a cheap point. Judicial proceedings are no political squabbles that a party tries to score a point against the other.
?
Assuming the time lapse between adoption and ruling exceeded the 90 days
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stipulated, unless the Appellant can show the miscarriage of justice occasioned, the proviso will save the ruling. The Appellants failed to do so in this case. However, I must state that there is no provision in rules of Court that allows re adoption of written addresses for counsel, see OKON V ITA (2010) LPELR ? 9010 (CA). The Court can recall parties or counsel to address it on a new or moot point not covered by the written addresses which of course would require additional submissions to the previously adopted addresses but not re – adoption. Generally, case management skills will help Courts in avoiding the pitfalls of Section 294(1) of the Constitution. Courts would do well not to even allow adoption if it cannot deliver judgment within 90 days.
The third issue is resolved against the Appellants. On the whole therefore, this appeal is unmeritorious and fails. It is hereby dismissed. The ruling of HON. JUSTICE BOLA OKIKIOTU – IGHILE delivered on the 17th December, 2012 is hereby affirmed.
Cost of N50,000.00 to all the Respondents.
Other Citations: (2016)LCN/8897(CA)
