3PLR – A.A. FOLUJE V. FEDERAL MORTGAGE BANK OF NIGERIA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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A.A. FOLUJE
V.
FEDERAL MORTGAGE BANK OF NIGERIA
COURT OF APPEAL CALABAR DIVISION
31ST OCTOBER 2000
CA/C/127/96
3PLR/2000/1 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
DENNIS ONYEJIFE EDOZIE
OKWUCHUKWU OPENE
SIMEON OSUJI EKPE
REPRESENTATION
Samuel Ikpo ESQ; – For the respondent
E.C. Ahanonu, ESQ.,- For the appellant
MAIN ISSUES
CONSTITUTIONAL LAW – Decrees promulgated by the Federal Military Government – whether takes precedence over unsuspended provisions of the Constitution under a military setting – applicable principles.
CONSTITUTIONAL LAW – Election petitions – the relevant law applicable by virtue of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992.
PRACTICE AND PROCEDURE – JURISDICTION – Meaning of – unlimited jurisdiction conferred on the High Court – whether such unlimited jurisdiction confers on the High Court power to adjudicate on complaints relating to election.
MAIN JUDGEMENT
OKWUCHUKWU OPENE, J.C.A: (Delivering the leading judgment):
The facts of the present case are that in 1992, the respondent sought to contest the National Assembly Election which the appellant had the authority to organize under the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992.
The respondent was cleared by the appellant state office at Uyo, Akwa Ibom State to contest the election. however, this preliminary clearance was subject to the final confirmation by the appellant’s chief electoral officer at its headquarters at Abuja. The Akwa Ibom State list of the contestants including the respondent was sent to Abuja but when the final list was sent to Uyo, it was found that the respondent was disqualified from contesting the election.
The appellant’s state office believing that it was a mistake made all efforts to have the respondent cleared but the Headquarters insisted that the respondent was disqualified and the reason given was that the respondent “falsified the tax receipt of 1990 to obtain a tax clearance certificate No. 007492”. The respondent was thus prevented from contesting the said election. It was as a result of this that the respondent filed an action at the High Court of Akwa Ibom State holding at Uyo, claiming as follows:-
“The plaintiff claims against the defendant the sum of N28,000,000.00 (Twenty-eight million naira) being special and general damages for NEGLIGENCE in that sometime in June 1992 the defendant office in the state negligently credited the following remarks against the plaintiff:-
‘NOT CLEARED: FALSIFIED 1990 TAX RECEIPT TO OBTAIN TAX CLEARANCE NO. 007492’ which said remark was meant for one Nyong, Nsikan Joseph a National Republican Convention candidate (NRC) for Uyo federal constituency.
In consequence of the remarks negligently made against the plaintiff, the plaintiff was disqualified and prevented from contesting the National Assembly Elections on the platform of the Social Democratic Party”.
Pleadings were ordered and duly filed and exchanged. The matter then went into a full trial at the end of which the learned trial Judge, Isua J. in a judgment delivered on 22/2/96 entered judgment in favour of the respondent in which she awarded him a total sum of N975,115.00 as special and general damages for wrongfully depriving him of his right to contest the election.
Aggrieved and dissatisfied with this judgment, the appellant has appealed to this court. The appellant filed original grounds of appeal and later additional grounds of appeal. He later abandoned the original grounds and thereupon argued only the additional grounds of appeal. Briefs of argument were filed and exchanged by the parties and the appellant also filed a reply brief. In the appellant’s brief of argument, one issue was identified for the determination of the appeal and it reads:-
“Whether or not the court below had jurisdiction to entertain the plaintiff/respondent’s claim”.
The respondent in his brief of argument formulated three issues which are:-
“i. Whether or not the court below had jurisdiction to have entertained the plaintiff/respondent’s action.
- Whether or not the plaintiff/respondent’s action was competent in the lower court.
iii. Whether or not the brief of argument filed by the appellant is competent having abandoned the original grounds of appeal and advanced arguments on only the additional grounds of appeal”.
In the appellant’s brief it is submitted as follows:-
“That the respondent’s action is incompetent and that the trial court lacked the jurisdiction to entertain it and that the trial court recognised in its judgment at pages 88-89 that the action was concerned with contest of an election when it stated that it was awarding the damages in favour of respondent “for wrongfully depriving him of his right to contest the election”.
It is stated that the issue of wrongful exclusion from contesting the National Assembly Election of 1992 could only be gone into by the National Assembly Election Tribunal established by section 38(1) of National Assembly (Basic Constitutional and Transitional Provisions) Decree 18 of 1992, and that if the court lacks jurisdiction to entertain a matter that the proceeding however well conducted is a nullity. Reference was made to the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587. It was argued that the combined effect of sections 6(6)(b) and 236 of the 1979 Constitution is to confer very wide powers upon the High Court to inquire into and protect the civil rights of persons and that the right to contest the said election is neither a common law nor customary law right but a right created by statute which is the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992 and that it is this statute that governs all questions or issues relating to or arising from the said election and that the trial court had no jurisdiction to inquire into the action. The following cases were referred to:- Barraclough v. Brown (1897) A.C. 615; Balarabe Musa v. Hamza (1982) NCLR 229; Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 at 370; Resident Electoral Commissioner, Anambra State v. Nwocha (1991) 2 NWLR (Pt. 176) 732; and Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517. It was also submitted that although the trial court ostensibly was concerned with the claim of special and general damages for negligence and libel that there was no way it could determine those issues without dabbling into the issues of disqualification of the respondent over which it has no jurisdiction, that the full effect of the decree prevents the trial court from considering or awarding damages for the alleged negligence or libel so long as the facts and circumstances and/or libel are intertwined with the facts and circumstances of the conduct of the National Assembly Election. It was finally submitted that as the trial court could not deal with any question relating to the election that it could also not deal with any question relating to the alleged negligence or libel emanating from the conduct of the election and that the High Court has an unlimited jurisdiction so long as that unlimited jurisdiction is not specifically excluded by a statute relating to certain subject matters.
In the respondent’s brief of argument, it was submitted that the High Court had jurisdiction to entertain the matter and that the submission by the appellant’s counsel that the matter could only go to National Assembly Election Tribunal established by section 38(1) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992 is misconceived.
Reference was made to the provisions of section 38(1)(a) and (b) and section 39 of the said Decree and it was then argued that by the provisions of section 38(1)(a) and (b) that the respondent could not have gone to the Tribunal to complain about the appellant’s negligence when he did not participate in the said election.
Paragraph 5(3) of schedule 3 of the said decree was also referred to and it was submitted that the validity of nomination of the respondent was never in issue at the lower court and that the High Court had jurisdiction by virtue of sections 6(6)(b) and 236 of the 1979 Constitution. It was argued that the case of Balarabe Musa v. Hamza (1982) NCLR 229 cited by the appellant is not applicable, in that case the High Court sought to exercise jurisdiction over a matter which its jurisdiction was ousted and that in the instant case that the validity of the respondent’s nomination was not in issue as suggested by the appellant. The only vital issue raised in this appeal is solely the question whether or not the trial court had jurisdiction to entertain the matter. The issue of jurisdiction is very vital and fundamental and it goes to the root of the action and it is therefore essential pre-condition for the exercise of judicial powers. It is the duty of a court to ascertain that it has the jurisdiction to entertain a matter before it embarks on entertaining it because if it turns out at the end of the day that the court had no jurisdiction to entertain the matter, the whole exercise is all a nullity no matter how well the trial was conducted.
Further, it can be raised at any time in the course of the proceedings and even on an appeal. See: Madukolu v. Nkemdilim (1962) 1 All NLR 587; Rasak A. Salu v. Egeibon (1994) 6 SCNJ 223; Madam Alice Okesuji v. F.A. Lawal (1991) 2 SCNJ 1; Resident Electoral Commissioner v. Nwocha (1991) 2 NWLR (Pt. 176) 732; and Adefulu v. Okulaja (1998) 5 NWLR (Pt. 550) 435. In determining whether the trial court had jurisdiction to entertain this action, it will be necessary to examine the relevant provisions of National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992 which is henceforth called the Decree.
Section 38(1)(a) and (b) of the Decree states:
“There shall be established for each state, one or more, election tribunals to be known as the National Assembly Election Tribunal which shall, to the exclusion of any court or tribunal have original jurisdiction to hear and determine;
- Petitions as to whether any person has been validly elected as a member of the National Assembly.
- Any question as to whether the seat of a member in the National Assembly has become vacant”.
Section 39 of the said Decree reads:
“No election into the National Assembly and no return to the National Assembly shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as (election petition) presented to the National Assembly Election Tribunal”.
Paragraph 5(3) of schedule 3 reads:
“Notwithstanding any other provision of this decree or any law, the decision of the chief electoral officer or any officer delegated by him that a candidate has been validly nominated under sub-paragraph (2) (a-f) of this paragraph shall not be the ground of any election petition in any National Assembly Election Tribunal established under this Decree or any action brought in any court of law or tribunal in Nigeria”.
It can be seen that section 38 of the Decree created the National Assembly Election Tribunal and gave it an original jurisdiction to the exclusion of any other court or tribunal to hear and determine election petitions under the decree.
Section 39 provides for how the election could be questioned by an election petition.
Paragraph 5(3) provides that the decision of the chief electoral officer or any officer delegated by him that a candidate has been validly nominated shall not be a ground for any election petition in any National Assembly Election Tribunal established under this Decree or in any court of law or tribunal in Nigeria.
It therefore follows that if the chief electoral officer or any officer delegated by him declared that a candidate had been validly nominated, that such a decision cannot be challenged in the National Assembly Election Tribunal or in any court of law but what of a case where a candidate is disqualified by the chief electoral officer or by an officer delegated by him, for one reason or other, can such a candidate bring an action in the National Assembly Election Tribunal or any court of law challenging such an action? I must say that this is the question that calls for decision in this matter. The fact of this case is very simple and straight forward, the respondent was a candidate on the platform of a political party known as Social Democratic Party to contest for the National Assembly Election of 1992. He was disqualified by the chief electoral officer and the reason given for disqualification is:-
“Falsified the tax receipt of 1990 to obtain tax clearance certificate No. 007492”.
It is this reason that was given for the respondent’s disqualification that formed the basis of his cause of action for special and general damages for negligence and libel. The learned counsel for the respondent had submitted that the reasons given by the appellant for not allowing the respondent to contest the election had nothing to do with the nomination of the respondent or any matter under the Decree. I find it difficult to agree with this line of reasoning. The appellant had the power to validly nominate a candidate or to disqualify him and it cannot disqualify any candidate without any reason and it is the reason given for the respondent’s disqualification to contest the election that formed the basis of this action and it can not be said that such reason had nothing to do with the nomination of the respondent or any matter under the decree. In fact, if the respondent was validly nominated, he would of course have no cause to file any action against the appellant.
I must say that the question that calls for determination in this case centers squarely on the interpretation to be given to the provisions of paragraph 5(3) of schedule 3 of the Decree which states that the decision of the chief electoral officer or any officer delegated by him that a candidate has been validly nominated shall not be a ground of any election petition in any election tribunal established under this Decree or any court of law or tribunal in Nigeria. It can be seen that it only stated that “a candidate has not been validly nominated” and that it did not say a candidate has been validly nominated or a candidate disqualified, but the short answer to that is that where a candidate is validly nominated it is not that candidate that is validly nominated that files an election petition in the National Assembly Election Tribunal under the said Decree or bring an action in any law court or tribunal to challenge that decision but the candidate that was not validly nominated or disqualified by the chief electoral officer or any officer delegated by him.
In fact, what this section of the law is saying is that if the chief electoral officer or any officer delegated by him decides that a candidate has been validly nominated that the other contestants cannot challenge that decision in the electoral tribunal or in any court of law or tribunal in Nigeria. In the course of this type of exercise, reasons are always given and if such nominations or reasons given for them form basis of litigation obviously some elections may be unduly delayed or not held at all and for political expedience and convenience, the legislator had made such an exercise by the chief electoral officer or officers delegated by him not a subject to be litigated upon at the election tribunal or any law court.
The learned counsel for the respondent had further submitted that by the provision of section 38(1)(a) and (b) of the Decree that the respondent could not have gone to the tribunal to complain of the appellant’s negligence when he did not participate in the said election. The respondent cannot go to the election tribunal to complain about the appellant’s negligence not because he did not participate in the election but because paragraph 5(3) of schedule 3 of the said Decree excludes such a right of action to challenge the validity of the appellant’s action or the reasons given for such an action.
It is pertinent to observe that reasons for disqualification of the appellant cannot be severed from the disqualification itself so as to make it a cause of action. This no doubt will be tantamount to indirectly questioning the validity of the appellant’s action in a court of law which the Decree had completely excluded. I must say that this is borne out from the judgment of the learned trial Judge who entered judgment for the respondent against the appellant “for wrongfully depriving him of his right to contest the election” and libel.
The respondent’s action was anchored on negligence and libel and not on wrongfully depriving him of his right to contest election. He has no such a right and if the chief electoral officer did not validly nominate him, that is, disqualify him, he has no cause of action against him. It has also been argued by the respondent that the High Court has jurisdiction to try the matter by virtue of section 6(6) and 236 of the 1979 Constitution. I must observe that matters relating to elections are created by statute and that they do not fall within “any question as to the civil rights and obligations of persons” as provided by section 6(6)(b) of the said Constitution. It must not be over emphasised that election processes, transactions, rights and remedies are of peculiar nature which by reason of their political under tones and nature are controlled by special legislation removing them from ordinary transactions between persons which can be submitted to the general jurisdiction of the High Court. It is for this reason that all efforts to drag the appellant to court in this matter must be resisted as paragraph 5(3) of schedule 3 of the Decree completely robs the High Court of jurisdiction to entertain such a matter. If the learned trial Judge had rightly addressed her mind to the provisions of the said decree, obviously she would not have entertained the matter as the trial court had no jurisdiction to entertain the matter. I will also observe that the appellant filed two appeals, the second one is termed additional notice and grounds of appeal and the appellant abandoned the first notice and grounds of appeal and adopted the second one. I do not see anything wrong with that as the two notices and grounds of appeal were both filed within time. On the whole, I am of the firm view that there is merit in the appeal and that it should be allowed. In the result, I allow the appeal. I set aside the judgment of High Court of Akwa Ibom State holden at Uyo, delivered by Isua J. on 22/2/96. In its place, I strike out the respondent’s action with N5,000.00 costs in the appellant’s favour.
DENNIS ONYEJIFE EDOZIE, J.C.A. I was privileged to have read in advance the draft of the lead judgment just delivered by my learned brother Opene, JCA and I agree with his reasoning and conclusion in allowing the appeal.
From the briefs exchanged by both parties, the dominant question posed in this appeal is the fundamental issue as to whether the court below had the jurisdiction to entertain the action before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision: See Halsbury’s Laws of England vol. 10, 4th Edition p. 232. The position of the law is that if a court has no jurisdiction to hear or determine a cause or matter, anything done in such want of jurisdiction is a nullity: See Mustapha v. Governor of Lagos State (1987) SCNJ. 143. In the words of Bello JSC. in Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 206 A-B.
“Moreover jurisdiction is the blood that gives life to the survival of an action in a court of law and without jurisdiction the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”.
In the case in hand, it is clear that from the respondent’s claim as reproduced in the lead judgment, the claim was for damages for alleged wrongful disqualification to contest the National Assembly Elections on the platform of the Peoples Democratic Party. By sections 38 and 39 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992, the original jurisdiction to hear complaints relating to elections into the National Assembly was vested in the National Assembly Election Tribunal to the exclusion of any court or tribunal. Furthermore, by paragraph 5(3) of schedule 3 of the said Decree No. 18 of 1992, the decision of the chief electoral officer or any officer delegated by him that a candidate has been validly nominated is not justiciable. By these provisions the jurisdiction of the court below was ousted in respect of the respondent’s claim. The unlimited jurisdiction of the High Court conferred by section 236 of the 1979 Constitution cannot be invoked to justify the assumption of jurisdiction by the court below because under the military regime, Decrees of the Federal Military Government such as Decree No. 18 of 1992 are superior to the unsuspended provisions of the Constitution: See the Military Governor Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280 at 307. Although courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction, once there is a clear language and barring all ambiguities, a law ousts the jurisdiction of the courts and tribunal from looking into the validity of an executive act, the courts have no option than to give effect to such a law: See Okumagba v. Egbe (1965) 1 All NLR 62.
I am in agreement with my learned brother Opene, JCA, that the court below was in gross error to have entertained the claim before it. Consequently, I also allow the appeal, set aside the judgment of the court below with an order striking out the respondent’s claim and costs assessed at N5,000.00 in favour of the appellant.
SIMEON OSUJI EKPE, JCA: I have before now read the leading judgment of my brother Opene, JCA, just delivered and I agree entirely with the judgment that the appeal has merit and should be allowed. I also allow the appeal and abide by the consequential orders made by my learned brother in the lead judgment.
Cases cited in the judgment Adefulu v. Okulaja (1998) 5 NWLR (Pt. 550) 435.
Balarabe Musa v. Hamza (1982) NCLR 229.
Barraclough v. Brown (1897) A.C. 615.
Madukolu v. Nkemdilim (1962) 1 All NLR 587.
Military Governor Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280.
Mustapha v. Governor of Lagos State (1987) SCNJ. 143.
Okesuji v. F.A. Lawal (1991) 2 SCNJ 1.
Okumagba v. Egbe (1965) 1 All NLR 62.
Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323.
Rasak A. Salu v. Egeibon (1994) 6 SCNJ 223.
Resident Electoral Commissioner, Anambra State v. Nwocha (1991) 2 NWLR (Pt. 176) 732.
Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517.
Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166.
Statutes referred to in the judgment
Constitution of Federal Republic of Nigeria 1979 S.6(6)(b)& 236.
National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992 S.38 & 39.
Paragraph 5(3) of Schedule 3.
