(2007) 1 All N.L.R. 258
Aderemi, JSC (Delivered the Leading Jundgment):- On Thursday 14 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 22 May 2007 dismissing the appeal of the appellant herein against the judgment of the Federal High Court, Enugu Division delivered on the 30 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 12 February 2007 and filed on 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 17 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 17 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 insofar 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 17 March 2006.
(3) Injunction restraining the defendant by themselves, their agents, servants, assign and privies or whosoever 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 17 March 2006, when the plaintiff's tenure of office will expire."
The originating summons was supported by a 15-paragraph affidavit. The defendant entered a conditional appearance. The present second and third respondents filed an application on the 23 February 2007 praying the court for an order joining them as defendants in the suit. The first defendant/respondent filed a notice of preliminary objection on the 26 February 2007 challenging the jurisdiction of the trial court to entertain the suit. The fourth and fifth respondents also brought an application filed on 2 March 2007 praying the trial court to join them as fourth and fifth defendants respectively to the summons. So also the sixth and seventh 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 plaintiff/appellant had deposed that sequel to the election for the Governorship of Anambra State on the 19 April 2003. Dr Chris Ngige was wrongfully declared the winner by the first 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 (Enugu Division) against the decision of the Election Petition Tribunal was dismissed and the Appellate Court upheld the decision of the Tribunal, consequent upon which the appellant (Peter Obi) was sworn in as the Governor of Anambra State on the 17 March 2006.
The basis of the appellant's case before the trial court, as can be gathered from the questions posed by him for determination by the trial court as set out above by me, is that, by the provisions of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, his four year tenure of office commenced from the date he was sworn in as the Governor of Anambra State? that is 17 March 2006, and that election into that Office ought not be proposed for 14 April 2007 as the first respondent planned to do? for by necessary inference, that office would not be vacant on 14 April 2007.
By a motion on notice dated and filed on 28 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 Federal Republic of Nigeria.
(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 17 March 2006?
(4) Having regard to the fact that the plaintiff took the Oath of Allegiance and Oath of Office on 17 March 2006, is the plaintiff not entitled to enjoy the full tenure of four 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 four 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 plaintiff's 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 17 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 Anambra State?"
After taking arguments of all Counsel on the motions and the preliminary objection as to jurisdiction, in a considered ruling delivered on the 30 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. 1 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 22 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 first 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 22 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 therefrom.
(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 first respondent (INEC) 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 therefrom.
(2) Whether the Court of Appeal was 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 higher court were not proper subjects for reference in view of the recent Supreme Court case of Alhaji Atiku Abubakar v Attorney-General of the Federation (2007) 3 NWLR (Part 1022) page 601, and a host of other cases on the issue of constitutional reference.
(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 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 intendment of the 1999 Constitution."
For their part, the second 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 therefrom.
(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 third 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 therefrom."
The fourth and fifth 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 therefrom.
(2) Whether the Court of Appeal was 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 sixth and seventh 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 14 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 May 2007 and the reply brief filed on 11 June 2007 in response to the second respondent's Brief of Argument (the two reply briefs filed on 1 June 2007 and 11 June 2007 respectively in reply to the first respondent's Brief of Argument having been withdrawn and consequently struck out) and submitting 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, to have wide latitude of power to deal with any case before it that is 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 17 March 2006. He urged that the appeal be allowed.
Chief Anthony Idigbe, learned Senior Counsel representing the first respondent, in highlighting the submissions contained in the brief of his client (INEC), 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 ANPP v Returning Officer, Abia State (unreported) Suit No SC 78/2005 delivered on 22 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 (1994) 6 NWLR (Part 352) 506 at 619 and Madukolu v Nkemdilim (1962) 2 SCNLR 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 (Part 842) 150 and Bamaiyi v Attorney-General Federation (2001) 12 NWLR (Part 727) 468 at 475. On Issue No. 3 (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, decided 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 NWLR (Part 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 second respondent, through the Brief of Argument of his client filed on 4 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 was covered absolutely by the provisions of section 285 of the Constitution. On Issue No. 3 (the propriety of the court below not invoking the provisions of section 16 of the Court of Appeal Act and then proceeding to entertain the claim) the learned Counsel, through the brief of his client, aligned himself with the submissions of Chief Idigbe SAN, learned Senior Counsel for the first 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 that he (Ngige) served as a non-event. Therefore, Ngige, having taken the Oath of Allegiance and Oath of Office on the 29 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 lacked jurisdiction to entertain the substantive suit and 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 third respondent, on going through the written brief of his client filed on 4 June 2007 for the purpose of highlighting salient points of argument, said nothing new outside the Briefs of the first and second respondents. Suffice is 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 fourth and fifth respondents, in presenting his arguments as set out in the joint brief of his clients (the fourth and fifth respondents) said nothing new from the arguments of Counsel for the first, second and third respondents, which I 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 sixth and seventh 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 first 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 therefrom was not properly formulated? we were, therefore, urged to strike out ground III of the Notice of Appeal and Issue No. II arising therefrom. Ground 4 and Issue No. 4 arising therefrom 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 the 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 complaint whatsoever 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? as set out on the records of proceedings, they are as follows:-
Ground 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 arguments 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 Federal Republic of Nigeria.
(4) Interpretation of sections 251(1), 180(2)(a), 178, 184, 185 and 285 of the 1999 Constitution of the Federal Republic of Nigeria is substantial."
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. 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. However, 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