|
In The Supreme Court
of
On Friday, the 13th day of July
2007
Before Their
Lordships
S.C. 123/2007
Between
And
Reasons for Judgement of the Court
Delivered by
Pius
Olayiwola Aderemi
J.S.C
On Thursday 14th
of June 2007, I delivered my judgment in the open court in this matter
sequel to taking the addresses of the respective counsel representing the
parties in this appeal and I did say that I would give my reasons for the
judgment today. I now proceed to give my reasons.
I start by saying that the
appeal here is against the judgment of the Court of Appeal [Enugu division]
delivered on the 22nd of May 2007 dismissing the appeal of the
appellant herein against the judgment of the Federal High Court, Enugu
division delivered on
the 30th of March 2007 in Suit No.
FHC/EN/CS/27/2007:
Peter Obi v Independent National
Electoral Commission
in which the trial court declined jurisdiction to adjudicate in the
matter placed before it. Suffice it to say that by originating summons dated
12th of February 2007 and filed the same date, the appellant, who
was the plaintiff before that court had claimed 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 the oath of office.
(2)
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."
Simultaneously, he prayed for
the following orders:
"(1)
A declaration that the four year tenure of office of the plaintiff as
governor of Anambra State began to run from the
date he took the oath of allegiance and the oath of office being the 17th
day of March 2006.
(2)
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 term of
office commencing from when he took the oath of allegiance and oath of
office on 17th March, 2006.
(3)
Injunction restraining the defendant by themselves, their agents,
servants, assign 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
of March, 2006, when the plaintiffs tenure of office will expire."
The originating summons was
supported by a 15 paragraph affidavit. The
defendant entered a conditional appearance. The present 2nd and 3rd
respondents filed an application on the 23rd of February 2007
praying the court for an order joining them as defendants in the suit. The 1st
defendant/respondent filed a notice of preliminary objection on the 26th
of February 2007 challenging the jurisdiction of the trial court to
entertain the suit. The 4th and 5th respondents also
brought an application filed on 2nd March 2007 praying the trial
court to join them as 4th and 5th defendants
respectively to the summons. So also the 6th and 7th
respondents had applied to be joined in the suit as defendants. The other
respondents after being joined as parties, upon their applications, filed
written applications, and addresses challenging the competence of the
action. In his 15-paragraph affidavit in support of the originating summons,
the plamtiff7appellant had deposed that sequel to the election for the
governorship of Anambra State on the 19th
April 2003, Dr. Chris Ngige was wrongfully
declared the winner by the 1st respondent (Independent National
Electoral Commission). Dissatisfied with the said declaration of results,
the appellant lodged a petition at the Election petition tribunal. The
declaration was set aside by the tribunal and it was held that the
appellant, who secured the majority of the lawful votes cast at the election
was the candidate duly elected. The appeal lodged by Dr. Chris
Ngige to the Court of Appeal (
By a motion on notice dated
and filed on 28th February 2007, the plaintiff/appellant prayed
the trial court for accelerated hearing of the proceedings/pending
applications including the accelerated reference of the questions formulated
by him to the Court of Appeal for adjudication. The questions formulated for
reference to the Court of Appeal as set out in the body of the motion are as
follows: -
"(1)
Whether having regard to Section 251
(1) of the Constitution of the Federal Republic of Nigeria, 1999, the
Federal High Court has jurisdiction to entertain the case which in the main,
calls for the correct interpretation of
Section 180 (2) (a) of the
Constitution of the Federal Republic of Nigeria, 1999.
(2)
Whether the plaintiff is "a person first elected as
governor" within the
meaning of Section 180 (2) (a) of the
Constitution of the
(3)
In view of Section 180 (2) (a)
of the Constitution of the Federal Republic of Nigeria 1999, when did
the tenure of office of the plaintiff begin to run having regard to the fact
as admitted by both parties, that the plaintiff took the oath of allegiance
and oath of office as governor of Anambra State
on 17th March, 2006?
(4)
Having regard to the fact that the plaintiff took the oath of
allegiance and oath of office on 17th March 2006, is the
plaintiff not entitled to enjoy the full tenure of 4 years for the office of
governor as prescribed by Section 180
(2) (a) of the Constitution of the Federal Republic of Nigeria, 1999?
(5)
Can the defendant lawfully abridge the tenure of
4 years prescribed by
the Constitution of the Federal Republic of Nigeria 1999 for a person such
as the plaintiff elected as governor of a State by holding election for the
office of governor for a State in the middle of plaintiffs tenure, in other
words, can the defendant lawfully conduct a governorship election in
Anambra State in April 2007 notwithstanding the
fact that the plaintiff took the oath of allegiance and oath of office only
on the 17th March 2006?
(6)
On a proper interpretation of
Section 180 of the
1999 Constitution of
the Federal Republic of Nigeria
particularly Section 180 (2) (a),
must election be held in all the 36 States of the Federal Republic of
Nigeria on the same date or at the same period irrespective of the date the
governor of a State was sworn and regardless of the provisions of
Section 180 (2) (a) of the 1999
Constitution of Nigeria.
(7)
Has the plaintiff waived his right to continue to remain in office as
the Governor of Anambra State for the full
tenure of four years when the plaintiff is not a candidate recognised by the
defendant in the 2007 general elections into the gubernatorial election in
After taking arguments of all
counsel on the motions and the preliminary objection as to jurisdiction; in
a considered ruling delivered on the 30th of March 2007, the
learned trial judge held that questions 2-7 do not constitute materials for
reference to the Court of Appeal and he consequently dismissed the motion
for reference. On the most important issue which is issue No l
relating to matter of jurisdiction, the learned trial judge declined
jurisdiction to entertain the summons, he therefore struck out the summons.
The appellant, being dissatisfied with the decision, lodged an appeal to the
court below (Court of Appeal). Following the exchange of briefs among the
counsel and taking of their respective arguments on the said briefs filed,
the court below, in a reserved judgment delivered on the 22nd of
May 2007, dismissed the appeal in toto. In so
doing, it held, inter alia, that the reliefs sought by the appellant were
mainly election matters which according to it, were within the exclusive
jurisdiction of the election tribunal and therefore the Federal High Court
lacked the jurisdiction to entertain same and that by extension, following
its holding that it was the election tribunal that was vested with
jurisdictional power in the matter, the court below (the Court of Appeal)
could not invoke the provisions of
Section 16 of the Court of Appeal Act and adjudicate in the substantive
matter. The court below also upheld the preliminary objection raised by the
1st respondent against ground 4 of the grounds of appeal and
issue No 4 in the appellant's brief to the effect that the trial
court having refused to make a reference, should have proceeded to pronounce
on the merits of the case for reason that it was not raised before the trial
court. Again, being dissatisfied with the decision of the court below, the
appellant appealed to this court by a notice of appeal dated 22nd
May 2007 which has incorporated into it four grounds. Distilled from the
said grounds of appeal and incorporated into the appellant's brief of
argument, for determination, are three issues which are in the following
terms: -
"(1)
Whether the learned justices of the Court of Appeal were correct when they
upheld the decision of the Federal High Court declining jurisdiction and
held that the prayers in the appellant's originating summons were election
matters within the exclusive jurisdiction of the election tribunal.
(2)
Whether the Court of Appeal was right in striking out ground IV of
the appellant's ground of appeal and issue IV distilled there from.
(3)
Whether having regard to the proper appreciation of the appellant's
prayers in the originating summons the Court of Appeal was right in not
invoking the powers under Section 16
of the Court of Appeal Act."
The 1st respondent
(Independent National Electoral Commission) identified four issues for
determination; and as contained in its brief of argument, they are as
follows: -
"(1)
Whether the Court of Appeal was right in upholding the preliminary
objection to ground 4 and issue developed there from.
(2)
Whether the Court of Appeal were correct when they upheld the
decision of the learned judge 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 specialised court, to wit election tribunal by virtue of
Sections 285 (2) and 184.
(ii)
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 summons.
(3)
Whether the lower court was right in holding that the matter sought
to be referred to the (sic) it as a
(4)
Whether this was an appropriate case for the exercise of the general
powers of the Court of Appeal under
Section 16 of the Court of Appeal
Act and if so whether the reliefs sought in the originating summons of
the appellant ought to be granted having regard to the clear provisions,
frame work and in tend men t of the
1999 Constitution."
For their part, the 2nd
respondent (All Nigeria People’s Party) raised three issues for
determination, as contained in their brief of argument. They are as follows:
-
"(i)
Whether the learned justices of the Court of Appeal were correct when
they upheld the decision of the Federal High Court declining jurisdiction
and held that the prayers in the appellant's originating summons were
election matters within the exclusive jurisdiction of the election tribunal.
(ii)
Whether the Court of Appeal was right in striking out ground IV of
the appellant's ground of appeal and issue IV distilled there from.
(iii)
Whether having regard to the proper appreciation of the appellant's
prayers in the originating summons the Court of Appeal was right in not
invoking the powers under Section 16
of the Court of Appeal Act"
The 3rd respondent
(Prince Nicholas Ukachukwu) also raised three
issues for determination by this court, and as could be gathered from his
brief; they are as follows: -
"(1)
Whether the Court of Appeal was right in upholding the decision of
the learned trial judge declining jurisdiction on the ground that the
reliefs in the originating summons, are within the exclusive jurisdiction of
the election tribunal as they are related to a determination of the tenure
of the governor of Anambra State.
(2)
Whether the Court of Appeal was right when it declined to invoke its
powers under Section 16 of the Court
of Appeal Act to hear and determine the substantive case as per the
originating summons.
(3)
Whether the Court of Appeal was right to have struck out the ground
IV of the appellant's ground of appeal as well as the issue distilled there
from."
The 4th and 5th
respondents (Peoples Democratic Party and Dr.Andy
Uba)
on their
own identified
three issues
for determination through their joint brief and they are as follows:
"(1)
Whether the Court of Appeal
was right in upholding the preliminary objection to ground 4 of the
appellant's ground of appeal and issue No.4 distilled there from.
(2)
Whether the Court of Appeal
were correct when they upheld the decision of the Federal High Court Enugu
division declining jurisdiction over the subject-matter of the
plaintiff/appellant's originating summons.
(3)
Whether this was an appropriate case for the exercise of the general
powers of the Court of Appeal under
Section 16 of the Court of Appeal Act and accordingly whether the Court
of Appeal was right in refusing to do so."
The 6 and 7 respondents
(peoples mandate party and Arthur Obiefuna
Nwandu) through their joint brief of argument
raised for determination by this court, two issues which as could be gleaned
from the said briefs; are in the following terms: -
"(1)
Whether the questions sought to be determined and reliefs sought are
election matters within the exclusive jurisdiction of the election petition
tribunal as decided by the court below or constitutional interpretation
within the jurisdiction of Federal High Court.
(2)
If the answer to question one is that it is within the jurisdiction
of the Federal High Court, then whether the plaintiff/appellant has made out
a case on the merit in the originating summons to have the case determined
in his favour by the Court of Appeal pursuant to its power under
Section 16 of the Court of Appeal Act."
When this appeal came before
us for argument on the 14th of June 2007, senior learned counsel
and learned counsel representing the parties in this appeal referred
to, adopted and relied on the respective briefs
filed on behalf of their respective clients. Dr.
Ikpeazu, learned senior counsel for the appellant after relying on
the appellant's brief of argument filed on
24/5/07 and the reply brief filed on 11/06/07 in response to the 2nd
respondent's brief of argument (the two reply briefs filed on 1st
June 2007 and 11th June 2007 respectively in reply to the 1st
respondent's brief of argument having been withdrawn and consequently struck
out) and submitted, that going by the reliefs sought, they were not within
the realm of election matters; for according to him, through the brief of
argument of the appellant, none of the parties challenged the returns made
at any election or a determination made by the election tribunal or the
Court of Appeal (the court below). It was the appellant's further submission
that by virtue of the provisions of
Section 251 (1) (r) and (q) of the 1999 Constitution, the Federal High
Court had the jurisdiction to entertain the suit. On issue II the appellant
submitted that it was wrong for the court below to have struck out ground 4
of the grounds of appeal when, according to him, the purpose of that ground
was to show that the trial court had jurisdiction to hear the suit and a
fortiori, the court below could then invoke the provisions of
Section 16 of the Court of Appeal Act.
And since the substantive appeal against the ruling of the trial court that
it had no jurisdiction had not been determined by the court below, it was
wrong of that court (the Court of -Appeal) to hold that the aforesaid ground
of appeal presumed that the trial court had jurisdiction. That ground, it
was further submitted, was competent and not being a fresh issue, it did not
require any leave' of court to file same. On issue No 3 it was
submitted that the essence of Section
16 of the Court of Appeal Act was to enable the court below, to which
that section applies, have wide latitude of power to deal with any case
before it from a trial court as if that case was originally initiated before
it; provided all the material necessary
was present before it, it was his final submission on this point that all
the material necessary were present before the trial court. The court below
therefore erred in law for not invoking the provisions of
Section 16 of the Court of Appeal Act.
He urged this court to invoke the provisions of
Section 22 of the Supreme Court Act
which are in
pari materia and assume full
jurisdiction over the entire substantive matter in this case while finally
submitting that based on the interpretation of the provisions of
Sections 180 (2) (a) and 185 of the
Constitution of the Federal Republic of Nigeria 1999, an order should be
proclaimed by this court, that the appellant, as the governor of
Anambra State is entitled to serve a four-year
term from the date he took the oath of allegiance and oath of office, that
being 17th day of March 2006. He urged that the appeal be
allowed.
Chief Anthony
Idigbe, learned senior counsel representing the
1st respondent, in highlighting the submissions contained in the
brief of his client Independent National Electoral Commission submitted that
from the reliefs sought by the appellant before the trial court, it was
clear that the term of the office of the governor of
Anambra State was what the appellant was praying the trial court to
determine; and that, according to him was a matter for an election tribunal:
praying in aid of this submission the decision of this court in
A.N.P.P. v Returning Officer
S.C.78/2005 delivered on 22nd February 2007. The appellant,
he submitted, was in the wrong court when he initiated his action in the
Federal High Court; the proper venue, according to him, would be the
election tribunal. Continuing, he said the trial court was right in holding
that the constitution did not confer any jurisdiction on the Federal
High.Court to entertain this suit; and the court
below was right in upholding that decision; he prayed in aid, the decisions
in
Ishola
v Ajiboye (pt.352)
506 at 619 and
Madukolu
v Nkemdilim (1962) 2 S.C.N.L.R. 341.
On the issue of the propriety of the trial court's decision on refusal to
make reference, it was submitted that the trial court was right in so
refusing, having regard to its decision that it lacked jurisdiction to
entertain the suit; and the court below, it was further submitted, was right
in upholding that decision, reliance was placed on the decision in
Ifegwu
v FRN (2003) 15 NWLR (pt.842)
150 and Bamayi v A-G Federation (2001) 12
N.W.L.R. (pt.727) 468 at 475. On its issue No 3 on whether
the lower court ought to have invoked the provisions of
Section 16 of the Court of Appeal Act;
it was submitted that the trial court having declined to have jurisdiction
to entertain the suit, there was nothing left to be done; that finding,
according to it, is what distinguishes the present case from the decision in
Inaloju
v Adeleke (2007) 4 N.W.L.R. (pt.1025) 423
in which the court below invoked the aforesaid provisions. The
learned senior counsel finally urged that the appeal should be dismissed.
Mr.
Okafor, learned counsel for the 2nd respondent, through
the brief of argument of his client filed on 4th June 2007,
submitted that the court below was correct in upholding the decision of the
trial court that it lacked the jurisdiction to hear the suit. He went
further to submit that from the reliefs sought which, according to him was
to determine the jurisdiction of the court, it was clear that the issue of
tenure of office of the appellant within the interpretation of the
provisions of Sections 184 and 285
(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999
was what called for determination; and by the aforesaid provisions, it is
only the electoral tribunal that can entertain the suit. Referring to the
provisions of Section 251(1) (r) and
(q) of the Constitution he submitted that they did not confer
adjudicatory powers on the Federal High Court as, it was further submitted,
the issue in this case is covered absolutely by the provisions of
Section 285 of the Constitution.
On its issue No 3 as to the propriety of the court below not invoking
the provisions of Section 16 of the
Court of Appeal Act and then proceed to entertain the claim, the learned
counsel, through the brief of his client aligned himself with the
submissions of Chief Idigbe
S.A.N. learned senior counsel for the 1st respondent which
is to the effect that based on all the provisions of the
constitution and the
Electoral Act
referred to,
the nullification of Ngige's election
(the Governor before Obi, the appellant) did not treat the period he (Ngige)
served as a non-event. Therefore, Ngige having
taken the oath of allegiance and oath of office on the 29th May
2003, the four-year mandate given by the electorate would start
running from that
day; and to hold otherwise would be to undermine and subvert the right of
the people (electorate);
more importantly, is the fact, according to him, that the matter in
controversy is purely an electoral matter
which must be within
the exclusive jurisdiction of the electoral tribunal and not the Federal
High Court. The trial court, having lacked jurisdiction to entertain the
substantive suit, the court below could not invoke the provisions of Section
16 aforesaid. Learned counsel finally urged us to dismiss the appeal.
Mr.
Ezechukwu, learned counsel for the 3rd respondent on going
through the written brief of his client filed on 4th June 2007
for the purpose of highlighting salient points of argument said nothing new
outside the briefs of the 1st and 2nd respondents.
Suffice it to say that I have read all the briefs filed very carefully
therefore, I do not consider it expedient to repeat all what others have
said. Perhaps, I should say that he submitted, through the written brief,
that ground 4 of the appellant's notice of appeal raised fresh issue for
which the leave of the court was required and since none was sought and
obtained, the court below was right in striking out the issue founded upon
it. It was his final submission that the decision of the court below be
affirmed and the main suit struck out.
Mr.
Udenze, learned counsel for the 4th and 5th
respondents, in presenting his arguments as set out in the joint brief of
his clients (the 4th and 5th respondents) said nothing
new from the arguments of counsel for the 1st, 2nd and
3rd respondents which 1 have reproduced supra. I consider it
unnecessary repeating what has been earlier said. Suffice it to say that he
also urged this court to dismiss the appeal in toto.
The 6th and 7th
respondents did not file any cross-appeal therefore, their joint brief shall
not be considered as the law frowns at such brief that lacks foundation in a
cross-appeal or an appeal.
I shall start the
consideration of this appeal by first treating the substance of the notice
of preliminary objection of the 1st respondent that ground 3 of
the grounds of appeal is incompetent
for the reason that the particulars thereto refer
to the error of the Federal High Court and not the Court of Appeal and that
this court (Supreme Court) has no legal power to hear appeals directly from
the High Court; referring to the particulars of ground III, it was submitted
that they are not a complaint against anything done by the court below
(Court of Appeal) but that of the trial court (Federal High Court). Ground
III he further submitted, was incompetent and issue II arising there from
was not properly formulated; we were therefore, urged to strike out ground
III of the notice of appeal and issue No II arising there from.
Ground 4 and issue No.4 arising there from should also be struck out.
In reply to the preliminary objection, the appellant in his reply brief
submitted that ground 3 and its particulars demonstrate a complaint against
the decision of the court below and not the trial court (Federal High
Court). The substratum of the complaint according to him, was the decision
on the preliminary objection that he made before the court below (Court of
Appeal) that that court (Court of Appeal) failed to hold that the basis of
ground 4 of the grounds of appeal was the failure of the trial judge to make
a determination on the merits of the case when copious arguments had been
advanced on the substantive case; adding that ground 3 herein only
challenged the
success of the
preliminary objection
and no
complain.
What so ever was made with
respect to the decision of the trial court. It is
imperative that I reproduce grounds 3 and 4 of the grounds of appeal; and as
set out on the records of proceedings, they are as
follows: -
Grounds 3
"The learned justices of the Court of Appeal erred in law when they upheld
the preliminary objection and struck out ground 4 of the grounds of appeal
on the ground that it dwelt on matters which did not arise from the decision
of the trial judge.
Particulars of error
(i)
The trial judge in his judgment clearly found that all materials and
argument had been advanced on the merits of the originating summons. Such
materials were indeed at all material times before the Court of Appeal."
Ground 4
"The learned justices of the
Court of Appeal erred in law when they held that the learned trial judge
correctly refused to refer the question of law raised by the appellant for
the determination of the Court of Appeal.
Particulars of error
(1)
The Court of Appeal justified the non-reference to the Court of
Appeal of the issue of reference on the ground that the trial court has no
jurisdiction.
(2)
The refusal of the trial court to make the reference was not because
the trial court had no jurisdiction to entertain the suit.
(3)
The court had jurisdiction to entertain the suit and make the
reference under Section 295 of the
1999 Constitution of the
(4)
Interpretation of Sections
251(1), 180(2) (a), 178,184,185 and 285 of the 1999 Constitution of the
The ground 4 of the
appellant's grounds of appeal placed before the court below (the Court of
Appeal) was to the effect that the learned trial judge who had the
jurisdiction to entertain the originating summons erred in law in not
determining the originating summons after dismissing the application for
reference. The issue 4 distilled from that ground 4 and also placed before
the court below (Court of Appeal) for determination reads thus: -
"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."
Looking at the whole gamut of
the case presented before the trial court, the cognisable aspects of the
appellant's case pronounced upon by the trial court and decided by it are
two and they are as follows: -
"(1)
Whether the Federal High Court had jurisdiction
to entertain the appellant's originating summons.
(2)
Whether the Federal High Court (the trial court) should refer
questions to the court below (Court of Appeal)."
A careful reading of ground 4
reproduced above presupposes that the trial court had jurisdiction to
entertain the suit but refused to hear and determine the substantive suit.
But, the truth of the matter is that the trial court had ruled that it
lacked jurisdiction to adjudicate in the matter before it. That decision was
final and binding until it was set aside. Let me quickly say here that once
a court declines jurisdiction to entertain a suit, the only other step it
could take in the matter is to make an order striking out the suit. Any
other order or pronouncement made by the court after declaring that it lacks
jurisdiction to entertain a suit, is null and void and of no effect. A
careful reading of the particulars to ground 4 shows that the appellant
wanted the trial court to have made a reference to the court below, on the
assumption by the appellant, that the court below had the legal power to
enter into adjudication on the matter. I am in a serious difficulty to see
on what basis the trial court could have proceeded to do that having, in
unmistaken terms said it lacked the legal power to adjudicate in the case
before it. I pause here to say that before a proper reference known to and
sanctioned by the law could be made, the court making it must have made some
findings upon the materials placed before it and in so doing; the trial
court must be convinced
that it had jurisdiction to hear the matter. In
the instant case, I repeat, the trial court had said in clear terms that it
lacked the power to hear the matter. If anything would form the basis of any
complaint against the verdict of the trial court, it is that, it said it
lacked jurisdiction and no more. Whether that verdict by the trial court on
jurisdiction is sustainable in law, is another matter. But, until it is set
aside by due process of law, it is binding. The court below did not set it
aside. Issue touching on jurisdiction is a matter of law. And that is what
is before us now. The grounds of appeal could therefore not be reasonably
said to have flowed from the judgment of the trial court. The court below
is, in my humble view, right in the order made striking out the said two
grounds of appeal which are unrelated to the decision of the trial court and
of course, the issues erroneously formulated there from have no legal
foundation, their being struck out is justifiable.
I therefore uphold the
preliminary objection of the 1st respondent and all issues in any
of the briefs before us relating to the preliminary objection are hereby
resolved against the appellant. Issue No 2 on the appellant's brief
of argument is, consequently answered in the affirmative; and from what I
have been saying,
Issues No l and 3 on
the 1st respondent's brief;
Issue No 2 on the 2nd
respondent's brief,
Issue No 3 on the 3rd
respondent's brief and
Issue No l on the joint
brief of the 4th and 5th respondents; all of which are
in pari
materia with issue No 2 on the
appellant's brief are similarly answered in the affirmative.
"I have carefully read all the
briefs of argument of the parties, 'having earlier disposed of issue No
2 in the appellant's brief, issues No l and 3 contained in the 1st
respondent's brief; issue No 2 in the 2nd respondent's
brief; issue No 3 on the 3rd respondent's brief and issue
No l on the joint brief of the 4th and 5th
respondents; the remaining issues in the written briefs of the parties
squarely deal with:
(a)
jurisdiction of the trial court to enter
into adjudication and
(b)
the invocation of the provisions of
Section 16 of the Court of Appeal Act
which would have enabled the court below to adjudicate on the substantive
matter. I shall therefore take all together.
Issue No l on the
appellant's brief;
Issue No 2 on the 1st
respondent's brief;
Issue No l on the 2nd
respondent's brief;
Issue No l on the 3rd
respondent's brief;
Issue No 2 on the joint
written brief of 4th and 5th respondents and
Issue No l on the joint
written brief of the 6th and 7th respondents; all
relating to matter of jurisdiction of the trial court to enter into
adjudication.
Thereafter, I shall take
together Issue No 3 on the appellant's brief;
Issue No 4 on the 1st
respondent's brief;
Issue No 3 on the 2nd
respondent's brief;
Issue No 2 on the 3rd
respondent's brief;
Issue No 3 on the joint
written brief of the 4th and 5th respondents and
Issue No
2 on the joint written brief of the 6th and 7th
respondents; all of which relate to the invocation by the court below of the
provisions of Section 16 of the Court
of Appeal Act which would have enabled the court below to adjudicate on
the substantive matter.
Jurisdiction - Issues relating thereto
Jurisdiction is the legal
power or legal authority that enables a judge to enter into adjudication in
a matter before him. It should
however be noted that the jurisdiction should be
examined not when it is invoked but when the cause of action arose. I wish
further to say that a court is said to have original jurisdiction in a
particular matter when that matter can be initiated before it and as a
corollary, a court is said to have appellate jurisdiction when it can only
go into the matter on appeal after it had been adjudicated on by a court of
first instance. It follows, therefore, that where a court takes upon itself
to exercise power under jurisdiction which it does not possess; its decision
is tantamount to nothing. Let it be noted that an action of a judge which
relates not to his office, is of no force; there can never be obedience to
any order he may make. The question may then be asked: what determines the
jurisdiction of a court? The answer is this: generally, it is the claim of
the plaintiff which determines the jurisdiction of a court entertaining the
same see
Adeyemi
& Ors. v Opeyori
(1976) 9 & 10 S.C. 31.
For a proper understanding of
this judgment in the light of the dictates of the law, I shall again,
reproduce the claims formulated by the appellant before the Federal High
Court as the plaintiff before that court; they are in the following terms:
"(1) A
declaration that the four-year tenure of
office of the
plaintiff as 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.
(2)
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
the 17th day of March 2006. 2
(3)
Injunction restraining the defendant by
themselves, their
agents, 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 plaintiffs tenure of office
will expire."
A critical examination of the
three reliefs that I have reproduced supra convinces me beyond any doubt
that the first two are declaratory in nature and the third one is injunctive
in nature. The first two reliefs are only an invitation to the court to
declare what the law on this issue is; that is, whether having regard to the
provisions of any law including the constitution, the four year tenure of
office of the plaintiff/appellant as governor of
Anambra State would begin to run from the 17th of March
2006 when he first took oath of office and oath of allegiance. I must
quickly remind myself that a declaratory judgment such as what was sought by
the plaintiff/appellant is discretionary. It is the form of judgment which
should be granted only when the court is of the opinion that the party
seeking it, is, when all facts are taken into consideration, fully entitled
to the exercise of the court's discretion in his favour. See
Odofin
v Ayoola (1984)
11 S.C. 72. I make bold
to say that from the claims formulated in the originating summons, a
substantial question of law has arisen in which the plaintiff/appellant has
a real interest to raise and the respondents to oppose. Perhaps, I should
also say that judicial authorities are
ad idem in saying that courts
must act judicially and judiciously when awarding declaratory judgment.
Courts all over the world, in areas where the rule of law is prevalent, have
come to recognise as veritable, declaratory judgments. This form of
judgment started forcefully to receive
acclamation when in the case of
Hamson
v Radcliffe
"The power of the court to make a declaration where it is a question of
defining rights of two parties is almost unlimited; I might say only limited
by its own discretion. The discretion should of course be exercised
judicially, but it seems to me that the discretion is very wide."
The dictum of Lord
Sterndale supra was quoted with approval by the
Privy Council (
"If a substantial question exists to which one person has a real interest to
raise, and the other to oppose, then the court has discretion to resolve it
by a declaration which it will exercise if there is a good reason for so
doing."
I wish to go further by saying
that to be able to claim declaratory reliefs, a
plaintiff must have the necessary standing to sue. He does not need to have
a subsisting cause of action or a right to some other relief, but some legal
right of his own must be in issue, actually or contingently. Unless this is
the case, there is nothing relating to his legal position which the court
can declare. This statement of mine was amplified by Lord
Diplock when in
Gouriet
v Union of Post Office Workers (1978) 23
A.C. 435 he reasoned thus at page 501
and I quote:
"But the jurisdiction of the court is not to declare the law generally or to
give advisory opinion; it is confined to declaring contested legal rights,
subsisting or future of the parties represented in the litigation before it
and not those of any one else."
Going by our jurisprudential
stand, I know that the decisions of foreign courts are no longer binding on
our courts. But they remain persuasive. Since the decisions I have referred
to above constitute an exposition of good law, I am persuaded by them. And I
shall follow them. As I have said, a declaratory order or judgment merely
declares a right or an entitlement or the position of the law. Therefore, a
plaintiff who intends to have an enforceable legal right from a declaratory
judgment or order that inures in his favour must also seek injunctive order
and damages. That is what the plaintift/appellant
has done in the instant case, of course, less claim for damages. I have said
earlier in this judgment that the main claims are an invitation to the court
to make a pronouncement as to the position of the law, and that going by the
decisions I have cited supra, a High Court or any court of record can
entertain it. However, the 1st to 5th respondents
have, through their various written briefs argued strenuously that the
reliefs sought relate to electoral matters and that the Federal High Court
does not have the jurisdiction to entertain them adding that the only body
that can entertain this suit is election petition tribunal. They placed
reliance for this content of the provisions of
Sections 178 (1) and (2); 184,251
(1), (p), (q) and (r) and 285 (1) and (2) of the Constitution of the
(pt.166) 166 when at
page 225, he opined
thus:
"The jurisdiction of our courts is derived from the constitution. Hence,
where the constitution has declared that the courts cannot exercise
jurisdiction, any provision, in any law to the contrary will be inconsistent
with the provision of the constitution and void. The exercise of a
jurisdiction to make a declaratory relief is not an exception to this
general principle."
I shall hereunder reproduce
the provisions of the sections of the constitution stated supra and examine
them critically to see whether they oust the jurisdiction of the Federal
High Court in entertaining this suit:
Sec 178(1)
"An election to the office of governor of a State shall be held on a date to
be appointed by the Independent National Electoral Commission."
Section 178 (2)
"An election to the office of governor of a State shall be held on a date
not earlier than sixty days and not later than thirty days before the
expiration of the term of office of the last holder of that office."
The above quoted provisions of
the constitution confer the right or authority on the Independent National
Electoral Commission to appoint a date for the election to the office of
governor of a State with a proviso that such a date shall not be earlier
than sixty days and not later than thirty days before the
expiration of the term of office of the last
holder of that office. But, has the term of office of the
plaintiff/appellant expired bearing in mind that he took his oath of
allegiance and oath of office on the 17th day of March 2006? It
is common ground that the tenure of office of a governor, by the force of
the constitution, is four years. However, I shall answer that question anon.
Section 184 of the Constitution
which deals with certain questions relating to elections
provides:
Section 184
"The National Assembly shall make provisions in respect of
|