LARRY VEN BAWA V. HON. HEHEMIAH TSENTSE DANDAURA & ORS

Legalpedia Citation: (2023-03) Legalpedia 28758 (SC)

In the Supreme Court of Nigeria

Fri Mar 31, 2023

Suit Number: SC.CV/317/2023

CORAM

Amina Adamu Augie SCN

Helen Moronkeji Ogunwumiju SCN

Adamu Jauro SCN

Tijjani Abubakar SCN

Emmanuel Akomaye Agim SCN

PARTIES

LARRY VEN BAWA

APPELLANTS

HON. HEHEMIAH TSENTSE DANDAURA 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ALL PROGRESSIVE CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Both the Appellant and the 1st Respondent were aspirants at the 3rd Respondent’s Primary Election and contested the primary election of Akwanga North State Constituency of Nasarawa State. Both parties claimed to have been issued INEC Form EC9 and this was the basis for the dispute. Both parties are at par as to the date on which the INEC Form EC9 was issued to the Appellant.

The suit at the Federal High Court was filed by the 1st Respondent challenging the fact that the 3rd Respondent, APC, issued INEC Form EC9 to the Appellant. The Federal High Court decided that it lacked jurisdiction and struck out the suit.

They went on appeal to the Court of Appeal but when the Court of Appeal delivered its judgment, the Federal High had lost jurisdiction to determine the case if sent back to it for determination on the merit because the 180 days allowed for the Court to hear and determine a pre-election matter pursuant to Section 285(10) of the 1999 Constitution (as altered) had elapsed. The Court of Appeal assumed original jurisdiction and tried the matter not tried by the trial Court and granted all the reliefs claimed. The Appellant is aggrieved by the decision hence the instant appeal.

HELD

Appeal allowed in part

ISSUES

Ø Whether the lower Court erred in law when it dismissed the Appellant’s Notice of Preliminary Objection and assumed jurisdiction to hear and determine the 1st Respondent Originating Summons as a Court of first instance, inspite of the expiration of the 180 days from the date of filing of the Originating Summons?

Ø Whether the lower Court was in error when it held that the 1st Respondent’s suit before the trial Court was not statute barred?

Ø Whether the lower Court was not wrong when it held that the IS t Respondent has proved its case and granted the reliefs sought in the Originating Summons?

Ø Whether the lower Court was not wrong when it held that the service of the Record of Appeal dispenses with the requirement of the personal service of the Notice of Appeal on the Appellant?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL MATTERS

This Court cannot therefore rely on the mere ipsit dixit of the Plaintiff alone as the true position of affairs in this case as it is a civil matter where the burden of proof shifts from one party to another until same is proved… – Per E. A. Agim, JSC

JURISDICTION – JURISDICTION OF THE COURT OF APPEAL TO EXERCISE ORIGINAL TRIAL JURISDICTION – WHEN THE TRIAL COURT NO LONGER HAS JURISDICTION

The decision of the Court of Appeal that it can determine the substantive Suit after the expiration of 180 days from the date the suit was filed, because there were sufficient materials before it is wrong. Its exercise of jurisdiction to determine the substantive suit and the grant of the reliefs claimed for in the originating summons is a nullity as it exercised a non-existent jurisdiction. The established case law in Nigeria is that the general power of the Court of Appeal vested on it by S. 15 of the Court of Appeal Act 2004 cannot be invoked in an appeal to exercise the original trial jurisdiction over a suit that is yet to be tried by the trial Court, if the trial Court has no jurisdiction or no longer has jurisdiction to try and determine the Suit. See for example Ezenwankwo V. APGA (2022) LPELR – 57884 (SC), Saki V. APC (2020) 1 NWLR (Pt 1706) 375 (SC), PDP V. Uche & Ors (2023) LPELR- 59604 (SC) and Frozen Foods Nig. Ltd & Ors V. The Estate of Oba John Agbola Ojomo & Ors (2022) LPELR- 57815(SC). – Per E. A. Agim, JSC

JURISDICTION – JURISDICTION OF THE COURT OF APPEAL TO EXERCISE ORIGINAL TRIAL JURISDICTION – WHEN THE TRIAL COURT NO LONGER HAS JURISDICTION

“The settled position of this Court is that the Court below can only exercise its general powers pursuant to Section 15 of the Court of Appeal Act to step into the shoes of the trial Court and exercise the powers the trial Court should have exercised but failed so to do where the trial Court still had the jurisdiction to exercise such powers. See EZENWANKWO v. APGA (2022) LPELR – 57884 (SC), SAKI v. APC (2020) 1 NWLR Pt. 1706 Pg. 375 (SC), PDP v. UCHE & ORS (2023) LPELR – 5960 (SC) and FROZEN FOODS NIG. LTD & ORS v. THE STATE OF OBA JOHN AGBOLA OJOMO & ORS (2022) LPELR – 57815.

See also the judgment of this Court in MRS. ADANMA ODE v. F. S. A. UZOR in Appeal No. SC.127/2023 delivered on 17/3/2023, PDP v. ENGR. JOHN IBRAHIM UCHE & 2 ORD in Appeal No. SC/CV/1402/2022 delivered on 6/01/2023, MAZI OKWUDILI NWA-ANYAJIKE & ANOR v. INEC & ANOR in Appeal No. SC/CV/26/2023 delivered on 17/2/2023.” – Per H. M. Ogunwumiju, JSC

JURISDICTION – JURISDICTION OF THE COURT OF APPEAL TO EXERCISE ORIGINAL TRIAL JURISDICTION – WHEN THE TRIAL COURT NO LONGER HAS JURISDICTION

The settled position of the law as I know is that the powers of the Court of appeal set out in Section 15 of the Court of Appeal Act cannot be exercised to assume the jurisdiction of the trial Court if the trial Court no longer has jurisdiction to hear and determine the claim. See EZENWANKWO V. APGA (2022) LPELR-57884 (SC). – Per Tijjani Abubakar, JSC