CORAM
OLUFUNMILOLA OYELOLA ADELEYE
PARTIES
DR. OLUSEGUN AGAGU APPELLANTS
1. MR. AKIN ESANMORE,2. MR. ADEMOLA MELTELEWON,3. MR. AKINTUBUWA ISEOLUWA,4. MR. TOFAS MAGBETONI ,5. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st -4th Respondents by an originating summons filed at the Federal High Court challenged the qualification of the Appellant to contest in the Ondo State Governorship election on the ground that he was disqualified by a Judicial Commission of Enquiry. Before hearing commenced, the Appellant raised a preliminary objection challenging the jurisdiction of the trial court to entertain the matter. The trial court dismissed the objection in its entirety. Dissatisfied, the Appellant filed a Notice of Appeal against the dismissal by the Federal High Court. During the pendency of the suit the governorship election was conducted and the Appellant was declared the winner of the election. The jurisdiction of the Federal High Court to continue to entertain the matter was questioned on the ground that the Respondents ought to file a petition before the Governorship Election Petition Tribunal. The trial court then dismissed the application for lack of merit. The Appellant aggrieved with the dismissal has appealed again to the Court of Appeal.
HELD
Appeal partly allowed
ISSUES
Was there service or proper service of the originating processes on the AppellantsWas the action not statute barred for non-compliance with Section 2 (a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 and Section 34 (3) of the Electoral Act, 2006Can this action be maintained against the Appellant in view of Section 308 of the 1999 Constitution?Does the action qualify as a post-election matter and does the lower court consequently not lack jurisdiction.Whether the action ought not to have been referred to the Election Tribunal for determination.
RATIONES DECIDENDI
EFFECT OF A DEFECT IN THE COMPETENCE OF A COURT – A DEFECT IN THE COMPETENCE OF A COURT RENDERS THE PROCEEDINGS A NULLITY
“Any defect in the competence of a court renders the proceedings before it a nullity, a defect of competence being extrinsic to the adjudication. PER M. U. PETER-ODILI, J.C.A.
IMMUNITY VIS -A- VIS ELECTION PETITION – IMMUNITY CANNOT BE CONFERRED ON A STATE GOVERNOR IN AN ELECTION PETITION CHALLENGING HIS ELECTION
‘The provision of Section 308 of the 1999 Constitution is not applicable to confer immunity on a State Governor in an election petition challenging his election as to preclude the issuance of subpoena on him. The immunity provided by the provision of Section 308 of the 1999 Constitution or a State Governor is put in abeyance when his election is being disputed before an election Tribunal as to make him subject to being compelled by a subpoena to tender documents or give evidence before the election Tribunal. See A.D. v. Fayose (2004) 8 NWLR (pt. 876) 639 at 652; Tinubu v. I.M.B. Securities Ltd (2001) 16 NWLR (pt. 740) 670; Obih v. Mbakwe (1984) 1 SCNLR 192; Unongo v. Aku (1985) 6 NCLR 262.’ PER. M. U. PETER-ODILI, J.C.A.
NON-SERVICE OF PROCESS -NON SERVICE OF PROCESS IS A FUNDAMENTAL ISSUE THAT AFFECTS THE JURISDICTION OF THE COURT TO ENTER JUDGMENT
“When an aggrieved party complains of non-service of process as the Appellant had done in this instance he is raising a fundamental issue which goes to the jurisdiction of the court to enter any judgment”. PER M. U. PETER-ODILI, JCA
INSTITUTION OF AN ACTION BY THE GOVERNOR IN HIS PERSONAL CAPACITY – BY SECTION 308 OF THE 1999 CONSTITUTION, A SERVING GOVERNOR IS NOT PROHIBITED FROM SUING ANOTHER IN HIS PERSONAL CAPACITY FOR INFRINGEMENT OF HIS RIGHTS
‘Section 308 of the 1999 Constitution in its entirety never stated either expressly, specifically or by implication, that the Governor of a State while serving in office should not sue another person in his personal capacity for the infringement of his rights. If the makers of the Constitution had intended to subject the Governor to such disability it would have said so bold and clear and giving its ordinary literal interpretation, there is nothing therein stopping a Governor from initiating actions against other persons for reliefs in his personal capacity. It may appear rather odious and may be unfair that the same Constitution that protects a Governor from being sued does not correspondingly protect other persons from the suit of a Governor. But it is not for the court to read into the Constitution a provision not therein stated Tinubu v. I.M.B. Securities Plc (2001) 8 NWLR (pt. 714) 192; Media Tech. (Nig.) Ltd v. Adesina (2005) 1 NWLR (pt. 908) 461; Aku v. Plateau Publishing Corporation Ltd (1985) 6 NCLR 338; Onabanjo v. Concord Press of Nigeria Ltd (1981) 2 NCLR 298.’ PER. M. U. PETER-ODILI, J.C.A.
NATURE OF ELECTION MATTERS – ELECTION MATTERS ARE PECULIAR IN NATURE AND ARE NOT TO BE TREATED AS ORDINARY CIVIL SUITS IN COURT.
‘Election matters are sui generis and do not deal with the civil rights and obligations of parties. They are peculiar in nature and because of this peculiarity and importance to the well being of a democratic society, they are regarded with aura that places them over and above normal day – today transactions between individuals which give rise to ordinary claims in court. Thus, an election petition is not always to be treated as ordinary civil suits in court. An election legislation creates special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purposes . Nabaruma v. Offodile (2004) 3 NWLR (pt. 891) 599 at 626; Orubu v. INEC (1988) 5 NWLR (pt. 94) 323; Abdullahi v. Elayo (1993) 1 NWLR (pt. 268) 171.’ PER. M. U. PETER-ODILI, J.C.A.
SECTION (2)(A) OF THE PUBLIC OFFICERS(PROTECTION) LAW- CONDITIONS TO BE FULFILLED BEFORE SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION ) LAW CAN AVAIL ANY PERSON
‘For Section 2 (a) of the Public Officers (protection) Law to avail any person, two conditions must be satisfied, namely:-
(a) it must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law; and
(b) the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. Ekeogu v. Aliri (1990) 1 NWLR (pt. 126) 345; Nwankwere v. Adewunmi (1967) NMLR 45; Atiyaye v. Permanent Secretary Ministry of Local Government, Borno State (1990) 1 NWLR (pt. 129) 728.’ PER. M. U. PETER-ODILI, J.C.A.
STATUS OF AN ACTION INSTITUTED AFTER THE STATUTORY PERIOD – AN ACTION INSTITUTED AFTER THE PERIOD STIPULATED BY THE STATUTE OF LIMITATION IS TOTALLY BARRED.
‘Any action instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549; Fadare v. Attorney-General Oyo State (1982) 4 SC; Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (pt. 584) 1.’ PER. M. U. PETER-ODILI, J.C.A.
DEPATURE FROM THE LITERAL RULE OF INTERPRETATION – WHERE ABSURDITY MAY RESULT, IT IS PERMISSIBLE TO DEPART FROM THE STRICT LITERAL INTERPRETATION.
‘Although the rule of literal construction should be invoked in interpreting statutory provisions, where however, absurdity may result, it is permissible to depart from the strict literal interpretation. And it is as well a cardinal rule of construction that in seeking to interpret a particular Section of a statute, one does not take the Section in isolation but must approach the question of the interpretation on the footing that the Section is but a part of greater whole. In such circumstances as this, reference should be made to associated words which may bring out the meaning of the particular provision under consideration. N.E.C. v. Izuogu (1993) 2 NWLR (pt. 275) 270 at 291; F.C.S.C. v. Laoye (1989) 2 NWLR (pt. 106) 652 at 723.’ PER. M. U. PETER-ODILI, JCA
PERSONAL SERVICE OF PROCESS – ANY OTHER FORMOF SERVICE ON A DEFENDANT WHERE PERSONAL SERVICE IS PRESCRIBED BY THE RULES, RENDERS THE JUDGMENT A NULLITY
“However if a rule prescribes personal service of process, the document to be served must be delivered to the person to be served as if not so served or substituted service is obtained from the court any judgment or order made on such a defendant is a nullity. See F.C.M.B. v. Abiola & Sons Ltd (1991) 1 NWLR (pt. 165) 14 at 28 – 29; Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6.” PER M. U. PETER-ODILI, J.C.A.
COMPETENCE OF A COURT – DETERMINANTS OF THE COMPETENCE OF A COURT
“A court is competent when:-
(1) It is properly constituted with respect to the number and qualification of its member;
(2) The subject matter of the action is within its jurisdiction;
(3) The action is initiated by due process of law, and
(4) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See Madukolu v. Nkemdilim (1962) All NLR 581. PER M. U. PETER-ODILI, J.C.A.
PUBLIC OFFICERS (PROTECTION) LAW- THE PUBLIC OFFICERS (PROTECTION) LAW REMOVES THE RIGHT OF ACTION, THE RIGHT OF ENFORCEMENT AND RIGHT TO JUDICIAL RELIEF OF A PLAINTIFF IF THE ACTION IS INSTITUTED OUTSIDE THE STATUTORY PERIOD
‘A statute of limitation, such as the Public Officers (Protection) Law, removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred; that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such a law.’ PER. M.U. PETER-ODILI, J.C.A.
ACADEMIC EXERCISE – COURTS OF LAW DO NOT EMBARK ON ACADEMIC EXERCISE
“In Attorney-General Federation v. ANPP (2003) 18 NWLR (pt. 851) 182 at 210 – 211 per Tobi JSC .
“Courts of law do not embark on academic exercise because they are not academic institutions. Therefore, there must exist between the parties to a suit or an appeal a matter in actual controversy which the court is called upon to decide as a living issue. This is because on the basis of the extant grundnorm upon which the judicial authority of the courts is based, courts in Nigeria have no jurisdiction to give advisory opinions. Any judgment which does not decide a living issue is academic or hypothetical. It stands in its best quality only as an advisory opinion. The Supreme Court and other courts in Nigeria will not engage in rendering such a judgment”. Akeredolu v. Akinremi (1986) 2 NWLR (pt. 25) 710; Atake v. Afejuku (1994) 9 NWLR (pt. 368) 379; Tanimola v. Surveys and Mapping Geodata Ltd (1995) 6 NWLR (pt. 406) 617; Adelaja v. Alade (1999) 6 NWLR (pt. 608) 544; Okulate v. Awosanya (2000) 2 NWLR (pt. 646) 530; UBN Plc v. Scpok (Nig.) Ltd (1998) 12 NWLR (pt. 578) 439; Nnubia v. Attorney-General Rivers State (1999) 3 NWLR (pt. 593) 82; Attorney- General Kwara State v. Alao (2000) 9 NWLR (pt. 671) 84″. PER. M. U. PETER-ODILI, J.C.A.
“ANY PERSON” – DEFINITION OF “ANY PERSON” IN THE PUBLIC OFFICERS (PROTECTION) LAW
‘The definition of “any person” in the Public Officers (Protection) Law cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. It admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated per Iguh JSC in Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (pt. 584) 1 at 36.’ PER. M. U. PETER-ODILI, J.C.A.
INTERPRETATION OF THE CONSTITUTION – ISSUES RELATING TO THE INTERPRETATION OF THE CONSTITUTION SHOULD NOT BE REGARDED AS ACACDEMIC, SPECULATIVE AND HYPOTHETICAL
‘It is true that issues relating to the interpretation of the Constitution, which is a living document are serious issues and cannot be regarded as academic, speculative or hypothetical per Kutigi JSC (as he then was); See also Alapiki v. Governor of Rivers State (1991) 8 NWLR (pt. 211) 575; Royal Petroleum Company Ltd v. First Bank of (Nig.) Ltd (1997) 6 NWLR (PT. 510) 584.’ PER. M. U. PETER-ODILI, J.C.A.
INTERPRETATION OF A CLAUSE IN A STATUTE – A CLAUSE IN A STATUTE IS TO BE CONSTRUED WITH REFERENCE TO THE CONTEXT AND OTHER PROVISION OF THE ACT.
‘Every clause in a statute has to be construed with reference to the context and other clauses of the Act as far as possible to make for a consistent understanding of the enactment of the whole statute. See N.E.C. Izuogu (1993) 2 NWLR (pt. 275) 270; Orubu v. N.E.C.(1988) 5 NWLR (pt. 94) 323.’- PER. M. U. PETER-ODILI, JCA
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)Public Officers (Protection) Law