|
In The Supreme Court of Nigeria On Friday, the 29th day of September 2006
S.C. 255/2005
Before Their Lordships
Between
And
Judgement of the Court Delivered by Idris LegboKutigi. J.S.C
This is an appeal against the judgment of the Court of Appeal holden at Abuja wherein the court affirmed the decision of the trial Federal High Court which held that it had no jurisdiction to entertain the Plaintiffs suit and consequently struck it out.
The relevant facts are that the Plaintiff and the 1st Defendant contested the last general election held in April 2003 into the office of Governor of Akwa Ibom State. At the end of the election the lstDefendant who was sponsored by the 5th Defendant was returned by the 4th Defendant as the duly elected candidate.
Dissatisfied with the result of the election, the Plaintiff filed a petition before the Governorship and Legislative Houses Election Tribunal for Akwa Ibom State. The Tribunal consisted of a Chairman and four members. Whilst the proceedings were still pending before the Tribunal, the Plaintiff on 10th July 2003 petitioned the Chief Justice of Nigeria who is the Chairman of the National Judicial Council complaining that the chairman and members of the Tribunal had been compromised with large sums of money by the 1st Defendant. On 14th July 2003 the Tribunal delivered its judgment in which it dismissed Plaintiffs petition as unmeritorious. The Plaintiff timeously appealed to the Court of Appeal. But before doing so he addressed another petition to the Chief Justice of Nigeria on 24th July 2003 about his earlier petition or complaint. Upon receipt of the Plaintiffs petitions, the National Judicial Council set up an investigatory Committee to look into the allegations against the Tribunal. Meanwhile, the Court of Appeal which heard the appeal against the judgment of the Tribunal dismissed Plaintiffs appeal on 30th October 2003. The Committee of investigation confirmed the allegations made by the Plaintiff against the Tribunal and consequently the chairman and members of the Tribunal were dismissed from service as reported and published in the Guardian Newspaper of 16th March 2004.
On 3rd May 2004, the Plaintiff instituted this present suit in the Federal High Court against the Defendants claiming thus:-
"(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st Defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because some of the Tribunal members have been found to have taken BRIBE. (b) An account by the 1st Defendant of the emoluments and all perquisites received by the 1st defendant as the Executive Governor of Akwa Ibom State since he was sworn in May 2003 and a refund of same to the Akwa Ibom State Government treasury.
(c) Perpetual injunction restraining the 1st defendant from exercising any authority or carrying on as the Executive Governor of Akwa Ibom State of Nigeria."
On 5th May 2004, the Plaintiff filed an application for a constitutional reference of two questions to the Court of Appeal. On being served with the processes the 1st Defendant filed a Notice of Preliminary Objection pursuant to sections 246, 285 and 308 of the 1999 Constitution praying that the Plaintiffs suit be dismissed or struck out on the ground inter alia that the court has no jurisdiction to entertain same or grant any relief against or touching upon or relating to the 1st Defendant.
The Preliminary Objection was taken first. After hearing the arguments of counsel on both sides, the learned trial judge came to the conclusion that he had no jurisdiction to entertain the suit and consequently struck it out.
Being dissatisfied with the Ruling of the learned trial judge, the Plaintiff appealed to the Court of Appeal holden at Abuja. In the Court of Appeal the Plaintiff submitted two issues for determination. The issues read as follows:-
"1. Whether the Federal High Court has jurisdiction to nullify the judgment of an election petition tribunal (and the appellate judgment of the Court of Appeal affirming it) on the ground of fraud arising from the fact that the Tribunal chairman and members were found to have received bribe from one of the parties in favour of whom the judgment was ultimately given.
2. Whether section 308 of the 1999 Constitution is a bar to the second relief contained on the appellant's statement of claim which is consequential to the principal relief seeking to nullify the judgment of the election petition Tribunal on the ground that the said judgment which confirmed the return of the 1st respondent as Governor of Akwa Ibom State was tainted with fraud in that the Tribunal members were found to have received bribe from the 1st respondent."
In the lead judgment of the Court of Appeal delivered by Muhammad J. C. A., he said on page 373 of the record thus:-
"The 5th respondent did not file any brief of argument Appellants issue No. 1, 1st respondent and 2 - 4th respondents issues are on jurisdiction of the lower court on the suit filed before it. 1 shall consider this issue first."
The lead judgment then proceeded straight to consider the submissions of counsel on the issue of jurisdiction. After a thorough review of the submissions, it came to the conclusion that the trial court was right to have declined jurisdiction in the suit. The court felt that there was no need for it to consider any other issue since the fundamental issue of jurisdiction has failed. 1 think the decision was right and proper. The Plaintiffs appeal was accordingly dismissed. The lead judgment on pages 376 and 377 of the record concluded thus:-
"The subject matter before the trial court (which incidentally) was an Election petition challenging the declaration of the 1st respondent by the 4th respondent as the elected candidate for the Governorship of Akwa Ibom State. An appeal against that declaration at the Court of Appeal was also unsuccessful. Thus the subject matter before the Governorship and Legislative Houses Election Tribunal of Akwa Ibom State and the Court of Appeal, Calabar Division, was election Petition and appeal lodged against it. In his considered ruling, the learned trial Judge declined jurisdiction.
Now, having carefully considered the submissions of learned counsel for the respective parties in contrast with the ratio decidendi of the learned trial Judge, I cannot but agree with the learned trial Judge, that he lacked jurisdiction, same cannot be conferred on it by any guise even if with the consent of the parties. There are no two ways to it. There is no need for me to belabour the issues raised by the parties in this appeal any longer, as doing so will not change the position of the law on issue of Jurisdiction adumbrated above.
Accordingly, I find no merit in this appeal and 1 hereby dismiss it. 1 affirm the decision of the Lower Court."
Aggrieved by the decision of the Court of Appeal, the Plaintiff has now further appealed to this court. The parties, with the exception of the 5lh Defendant, filed and exchanged briefs of argument. These were adopted at the hearing. Plaintiffs learned counsel, Mr. TayoOyetibo SAN, has in his brief submitted three (3) issues for resolution in the appeal as follows:
"1. Whether the Court of Appeal did not breach the appellant's fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal.
2. Whether the Court of Appeal was right in affirming the decision of Adah. J. of the Federal High Court that he lacked jurisdiction to entertain the appellant's action.
3. Whether the Court of Appeal was right when it held per Rhodes-Vivour J.C.A that the first relief claimed by the appellant could only be heard by the Election Petition Tribunal in A.kwa Ibom State or the Tribunal having jurisdiction over Akwa Ibom State or by a High Court judge sitting in Akwa Ibom State."
It has been demonstrated. above and clearly supported by the record of proceedings of both trial Federal High Court and the Court of Appeal, that the only and single issue or ground on which the trial court struck out the suit is entirely for want of jurisdiction. The trial court and the Court of Appeal did not strike out the case on any other ground or point of law. The parties are therefore obliged to keep their objections, complaints and submissions within the narrow issue of jurisdiction only. They will not be permitted to venture outside it.
The record shows on pages 373 and 374 the submissions of Mr. Oyetibo, Plaintiffs counsel, in the Court of Appeal. And his submissions were considered along with the submissions of counsel for the other parties. It is therefore not correct for Mr. Oyetibo to have alleged as he has done in issue (1) above, that the Court of Appeal breached the Plaintiffs fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the Plaintiff in the appeal. Plaintiffs issue (1) before the Court of A.ppeal which was on jurisdiction, was amply considered and dismissed. The other issue (2) was not considered by the Court of Appeal at all as there was clearly no need for it, because there was no longer the jurisdiction for doing so. It must also be stated that apart from the two issues set out above, 1 cannot find anywhere in the record where Mr. Oyetibo set out points of law for determination by the Court of Appeal Probably he was referring to issue (2) above. In my view a court of law is not bound to answer any question of law or otherwise raised by a litigant or counsel unless the point or points so raised are necessary and material for the resolution of the case before it. This court has held times without number that it will not engage or indulge in academic exercise (see for example Oyeneye vsOdugbesan (1972) 4 SC.244, Bakare vs A.C.B (1989) 3NWLR (Pt.26)47. Also the Court does not issue opinions about potential cases. Issue (1) therefore fails.
Issue (2) is without any hesitation answered in the affirmative forthe reasons ably set out in the judgment of the Court of Appeal as well as that of the trial court. The subject matter of the suit is undoubtedly an election petition matter which had since been concluded in the Court of Appeal which is the final Court in the matter. The reliefs claimed by the Plaintiff are clear and support that view. The Election Petition cannot be resurrected in any manner or form in the Federal High Court, which had rightly declined jurisdiction and confirmed bythe Court of Appeal. The lower courts are in my view right in their stand. This issue also fails.
Issue (3) is about the obiter dictum of Rhodes-Vivour J.C.A. whoparticipated in the appeal at the Court of Appeal. The statement in my view is a mere obiter dictum in a concurring judgment. It is not the ratio decidendiand cannot therefore form the basis or reason to set aside the judgment of the Court of Appeal. That was not the reason for dismissing the appeal. And as I said above the Court does not issue opinions about potential cases. The issue is therefore in my view incompetent coming as an arbiter in a concurring judgment only. It is hereby struck out.
All the three (3) issues are therefore resolved against the Plaintiff/Appellant.
The appeal completely fails. It is dismissed with
Judgement delivered by UmaruAtuKalgo. J.S.C
1 have had the opportunity to read in draft the judgment just delivered in this appeal by Kutigi JSC. I entirely agree with his reasoning and the conclusions reached therein. I therefore agree that there is no merit in the appeal and it ought to be dismissed. I accordingly dismiss it with costs as assessed in the said judgment.
Judgement delivered by Niki Tobi. J.S.C
I have read in draft the judgment of my learned brother, Kutigi, JSC, and I agree with him that this appeal should be dismissed. It is a bogus appeal. The appellant and the 1st respondent contested the election to the office of Governor of Akwa Ibom State on 19th April, 2003. The 1st respondent won the election and was declared Governor of Akwa Ibom State. The appellant challenged the result of the election at the Governorship and Legislative Houses Tribunal set up for Akwa Ibom State. The Tribunal consisted of Hon. Justice M. M. Adamu, Chairman, and the following as members: Hon. Justice D. T. Abura, Hon. Justice A. M. Elelegwa and Chief Magistrate O. J. Isede.
After parties have closed their case, and precisely on 11th July, 2003, the appellant brought an application seeking to disqualify the members of the Tribunal on the ground of likelihood of bias, e.g. that "the Chairman and members of this Hon. Tribunal as now constituted have acquired pecuniary interest(s) in this petition and are therefore biased against the petitioner/applicant"
The Tribunal delivered judgment on 14th July, 2004, three days after the application was filed. Dissatisfied, the appellant appealed to the Court of Appeal on 25th July, 2003. That Court dismissed the appeal.
When the proceedings were pending in the Tribunal, the appellant petitioned the Chief Justice of Nigeria, who is Chairman of the National Judicial Council that the Chairman and members of the Tribunal had been compromised with large sum of money by the 1st respondent. That was on 10th July, 2003. On 24th July, 2003, the appellant addressed another petition to the Chief Justice of Nigeria on the same complaint of compromise. After investigation of the allegations by the National Judicial Council, the Chairman and members of the Tribunal were dismissed from service.
On 3rd May, 2004, the appellant instituted an action at the Federal High Court against the respondents asking for the following reliefs:
"(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st Defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because some of the Tribunal members have been found to have taken BRIBE.
(b) An account by the 1st Defendant of all the emoluments and all perquisites received by the 1st Defendant as the Executive Governor of Akwa Ibom State since he was sworn in May 2003 AND; a refund of same to the Akwa Ibom State Government treasury.
(c) Perpetual injunction restraining the 1stDefendant from exercising any authority or carrying on as the Executive Governor of Akwa Ibom State Nigeria.
"On 5th May, 2004, the appellant filed an application for constitutional reference to the Court of Appeal on two questions. The 1st respondent entered aconditional appearance and filed a notice of preliminary objection pursuant to sections 246, 285 and 308 of the 1999 Constitution praying that the suit be dismissed or struck out on the following grounds:
"1. The suit as constituted against the 1st defendant is unconstitutional, incompetent, null and void having regard to section 308 of the 1999 Constitution; accordingly this Hon. Court has no jurisdiction to entertain the same or to grant any relief against or touching upon or relating to the 1st defendant.
2. The Federal High Court has no jurisdiction under the 1999 Constitution, or the Electoral Act 2002 or any other law to review the judgment of an Election Tribunal or to review and/or set aside or nullify or sit on appeal over the judgment of the Court of Appeal arising from an election petition or howsoever.
3. The Writ is incompetent, null and void pursuant to Order 6 of the Federal High Court (Civil Procedure) Rules; the plaintiff has no locus standi to sue for account.
4. This Hon. Court cannot rely on or act on a bare allegation of crime (bribery) against persons who are not parties to the suit; who are given no opportunity to defend themselves before this Hon. Court; of whom no certificate of conviction by a court of competent criminal jurisdiction is alleged or pleaded as no investigative panel or committee other than a court of law can try, convict and/or punish for any crime in the Federal Republic of Nigeria.
5. It is incompetent to claim for a case to be stated in the Court of Appeal on a Writ or Statement of Claim since reference can only be so made if the constitutional question arises in the course of proceedings and has arisen ex tempo re or ex im proviso."
Counsel argued the preliminary objection. The learned trial Judge upheld the objection. He held that he had no jurisdiction to entertain the suit. He accordingly struck it out.An appeal to the Court of Appeal was dismissed. This is a further appeal to this Court. As usual briefs were filed and exchanged. The appellant filed the following issues for determination:
"1. Whether the Court of Appeal did not breach the appellant's fundamental right to a fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal.
2. Whether the Court of Appeal was right in affirming the decision of Adah. J. of the Federal High Court that he lacked jurisdiction to entertain the appellant's action.
3. Whether the Court of Appeal was right when it held per Rhodes-Vivour J.C.A that the first relief claimed by the appellant could only be heard by the Election Petition Tribunal in A.kwa Ibom State or the Tribunal having jurisdiction over Akwa Ibom State or by a High Court judge sitting in Akwa Ibom State."
The 1st respondent adopted the three issues formulated by the appellant for determination in his appeal. The 2nd, 3rd and 4th respondents formulated three issues which are exactly the same as those of the appellant. I shall therefore not reproduce them here.It is the case of the appellant that the Court of Appeal breached the appellant's fundamental right to fair hearing in failing to consider and determine the points of law submitted by the appellant in his appeal. Learned counsel for the appellant submitted that the Court of Appeal was wrong in affirming the decision of Adah, J. that the Federal High Court lacked jurisdiction to entertain the appellant's action. He also submitted that Rhodes-Vivour, JCA, was wrong in holding that the first relief claimed by the appellant could only be heard by the Election Petition Tribunal in Akwa Ibom State or the Tribunal having jurisdiction over Akwa Ibom State or by a High Court judge sitting in Akwa Ibom State. He urged the Court to allow the appeal.
Learned counsel for the 1st respondent submitted that having regard to the issues formulated for determination, the court was perfectly right to take the issue of jurisdiction in the way it did, thus not breaching the provisions of section 36(1) and 318(1) of the 1999 Constitution. He submitted that the Court of Appeal was right in affirming the decision of the trial Judge that he lacked jurisdiction to entertain the appellant's action. On Issue No 3, learned counsel submitted that an appeal does not lie against a minority decision. He urged the court to dismiss the appeal and affirm the decision of the Court of Appeal. As counsel for the 2nd, 3rd and 4th respondents made generally similar submissions in the 1st respondent's brief, I do not see reason to repeat them here. The first attack on the Court of Appeal is failure on the part of that Court to consider and examine the points of law submitted by the appellant in his appeal before arriving at the conclusion that the learned trial Judge lacked jurisdiction to entertain the suit. As the appellant's desire for fair hearing is for this Court to consider the points of law submitted by him, I must give his client that fair hearing and this I will do by taking all the three issues he formulated for determination in this appeal.
The points of law submitted for determination by the appellant are:
"(a) a judgment that is obtained by or tainted with fraud can be impeached by means of a fresh action which may be brought without leave: see pages 19-23 of the record;
(b) an action for the setting aside of a judgment that was obtained by or tainted with fraud is not an action for the review of the judgment concerned: pages 25-28;
(c) section 308 of the 1999 Constitution is not a bar to the second relief contained in the appellant's statement of claim which is consequential to the principal relief seeking to nullify the judgment of the Election Petition Tribunal on the ground of fraud: pages 34-40."
As it is, the first two points of law are on fraud while the third and last one is on section 308 of the 1999 Constitution. I have thoroughly examined the submission of learned Senior Advocate from page 7 to page 11 and pages 18 to 24 of the brief and I do not see how the position can change in favour of the appellant. The issue of fraud canvassed by learned Senior Advocate cannot vest jurisdiction in a court that lacks it. .A judgment that is obtained by or tainted with fraud cannot be used as basis for conferring jurisdiction in a court that has none. If a court has no jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction. Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a court of competent jurisdiction. The above takes care of the first two points of law.
I go to the third point. It is on section 308 of the Constitution, a section which provides for what is generally called Immunity Clause. It is the contention of learned Senior Advocate that section 308 is not a bar to the second relief contained in the plaintiff's statement of claim. Let me allow myself to quote the following submission of learned Senior Advocate from page 36 of the brief of the appellant:
"It is respectfully submitted that section 308 of the 1999 Constitution does not apply to any proceeding in which it is being sought to establish that a person occupying the office of Governor of a State is not lawfully occupying the office. Although it is conceded here that the proceeding in the trial court was not an election Petition in which it is being sought to show that the judgment in the election Petition affirming the election of the 1st respondent was obtained by fraud and as such the judgment is a nullity."
While I do not really see the relevance of section 308 in this matter, I am amazed at the above submission of learned Senior Advocate which is contradictory, although he tries to palliate or soften the contradiction by some application of cleverness. I shall return to the submission when I take Issue No. 2 on jurisdiction.
And here I am. The principal relief sought by the appellant, according to the appellant himself, reads, and I repeat it at the expense of prolixity and for ease of reference:
"(a) A declaration that the judgment of the Akwa Ibom Governorship Election Tribunal given in favour of the 1st Defendant as having been duly elected the Executive Governor of the Akwa Ibom State and confirmed by the Court of Appeal is a nullity because of some of the Tribunal members have been found to have taken BRIBE."
In the light of the above relief, the learned trial Judge said at page 217 of the Record:
"It must be said therefore that under the Constitution of Nigeria, 1999, this Court has no jurisdiction in any form over Election Petition Matters at any level. Furthermore, under the Constitution, no jurisdiction is given to this Court to review decisions of Election Tribunals and decisions of the Court of Appeal on judgment of Tribunals. In fact by the Supreme Law of Judicial precedent which calibrates the hierarchy of Courts under the Constitution, it is not only a taboo but sacrilegious for this Court, a High Court, to be called upon to review the decision of the Court of Appeal."
This is a very brilliant one. The learned trial Judge, Adah, J. got the law properly. How can counsel go to the High Court to urge that court to make the declaration sought for, in the guise that it is not an election matter when it is one in reality and substance? Let me look a bit at the relief. It is for a declaration in respect of the judgment of the Akwa Ibom Governorship Election Tribunal declaring the 1st respondent Governor of the State. Can. any relief seeking language be clearer than relief (a) above? The learned trial Judge was asked to declare that judgment delivered by the Court of Appeal a nullity on the ground that members of the Tribunal "have been found to have taken BRIBE". It is clear to me that the principal relief is to declare the Court of Appeal judgment a nullity. I do not know of any relief available to the appellant to declare that "the members of the Tribunal have been found to have taken BRIBE" to make it a principal relief in the circumstances of this case. How can counsel go to the High Court to seek for a nullification of a decision of the Court of Appeal? What law was counsel relying on or upon? Did he forget the existence of section 240 of the Constitution of the Federal Republic of Nigeria, 1999? What is in section 249 of the Constitution to accommodate the action of the appellant? I still have one more question. I do not want to ask it. This is my first experience and I do not think I enjoy it. The learned trial Judge did not enjoy it too. To him, it was a taboo or a sacrilege for his Court to be called upon to review the decision of the Court of Appeal. He is correct, very correct indeed. I pray it does not come our way the second time.
In my humble view, learned Senior Advocate laboured in vain to argue that the matter did not involve election petition. If the matter did not involve election petition, did it involve the taking of bribe by the members of the Tribunal? If so, where is the relief known to law that the appellant has sought or asked without tying it to the main issue of election? If the principal matter is bribery, should the appellant not think of obtaining fiat to prosecute the matter? And if he does that, is the Federal High Court the place to commence the prosecution? Head or tail, the appellant comes out worse.
In the Court of Appeal, the learned Justice had not the slightest difficulty to dismiss the appeal. Muhammad, JCA, said in the penultimate paragraph at p.377 of the Record:
"Now having carefully considered the submissions of learned counsel for the respective parties in contrast with the ratio decidendiof the learned trial Judge, I cannot but agree with the learned trial Judge, that he lacked jurisdiction to entertain the suit."
Again, I entirely agree with the Court of Appeal. It cannot be otherwise. This Court has held in a number of cases that it has no jurisdiction to entertain or hear election matters in respect of election to the office of Governor of a State. This is because by section 246(3) of the 1999 Constitution, the decision of the Court of Appeal in respect of appeals arising from election petitions to the Office of Governor of a State is final. See Awuse v. Odili (20031 18 NWLR (Pt. 851) 116.
I now move to issue No. 3 for whatever it is worth. Learned Senior Advocate said that the issue is based on the minority judgment of Rhodes-Vivour, JCA. I do not think I should take further time here. |