Legalpedia Citation: (2015-12) Legalpedia (CA) 11737

In the Court of Appeal

Wed Dec 16, 2015

Suit Number: CA/A/EPT/740A/2015

CORAM

HON. JUSTICE M.A.OWOADE    JUSTICE, COURT OF APPEAL

SOWEMIMO, JUSTICE SUPREME COURT

HON. JUSTICE M.MUSTAPHA    JUSTICE, COURT OF APPEAL

PARTIES

1. MOMOH RABIU ALFA
2. ALL PROGRESSIVE CONGRESS (APC)

APPELLANTS

1. SAMUEL DAVID OMALE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEALS, JURISDICTION, CIVIL PROCEDURAL LAW, ELECTORAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is a Cross Appeal against part of the of the decision National/State Houses of Assembly Election Petition Tribunal sitting at Lokoja, Kogi State, delivered on the 27th of October, 2015, wherein the Trial Tribunal dismissed the Cross Appellants’ application seeking to dismiss the 1st and 2nd Respondents petition, being dissatisfied, the Cross Appellants have now appealed by a Notice of Appeal to this instant Court.

 

HELD

Cross Appeal dismissed.

ISSUES

1. Whether the tribunal was right to hold that it had jurisdiction to try ground 3 of the petition (Distilled from grounds 2 and 3)?
2. Whether the lower court was right to proceed to determine the petition on the merits after refusing the Cross Appellants’ motion filed on the 5th of June, 2015?

RATIONES DECIDENDI

GROUND OF APPEAL – PRIMARY PURPOSE OF FORMULATION OF GROUNDS OF APPEAL

It is very important not to lose sight of the fact that the primary purpose of formulation of grounds of appeal is to give the Respondent in an appeal notice of the grievances and dissatisfaction of the Appellant which he is expected to meet and react to in the impending appeal. The provisions of the rules of this Court with regards to formulation of grounds of appeal are always very clear, and it spells out distinctly what is required of a ground of appeal, and the purpose and intent is to ensure that the Respondent is not taken unawares. PER – MOHAMMED MUSTAPHA, JCA

GROUND OF APPEAL – WHETHER OR NOT A GROND OF APPEAL WHICH CLEARLY EXPLAINS ITS GRIEVANCE AND DISSATISFACTION CAN BE STRUCK OUT FOR NOT CONFORMING TO A PARTICULAR FORMAT

Where such grounds explain such grievance and dissatisfaction clearly same cannot be struck out merely because it does not conform to a particular format; substance takes priority of place over form, see MTN NIG, COMM. LTD V. ABUBAKAR & ANR (2014) LPELR-22783 -CA.

PROCEDURAL JURISDICTION – WHETHER OR NOT A MATTER RELATING TO THE PROCEDURAL JURISDICTION OF A COURT CAN BE WAIVED

It is trite that while the substantive jurisdiction of a court cannot be waived, conversely a party by his conduct may waive a matter relating to the procedural jurisdiction of a court, the cross appellants in this case took fresh steps with their knowledge of the defect as it related to paragraph 18 of the first schedule to the Electoral Act, 2010 (as amended), after the filing of Forms TF007 and TF008 among others. The right to set aside an election petition or a proceeding resulting therefrom on ground of either “irregularity” or “nullity” can be waived in the appropriate circumstances. PER – MOHAMMED MUSTAPHA, JCA

JURISDICTION – DIFFERENCE BETWEEN JURISDICTION AS A MATTER OF PROCEDURAL LAW AND JURISDICTION AS A MATTER OF SUBSTANTIVE LAW

For a clear distinctive difference between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law the apex Court’s decision in the case of NDAYAKO v. DANTORO (2004) 13 NWLR (Pt.889) 187 at 219 per EDOZIE JSC is apt and decisive wherein the learned jurist said:

“It is noteworthy that a distinction must be drawn between two types of jurisdictions i.e. jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law while a litigant can waive the former, no litigant can confer jurisdiction in the Court where the constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant can submit to procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.”

 

PER – MOHAMMED MUSTAPHA, JCA

GROUNDS OF APPEAL – WHETHER OR NOT A COURT OF APPEAL CAN INTERFERE WITH FINDING OF A TRIAL COURT IN THE ABSENCE OF ANY CHALLENGE OF THE RATIO OF THE TRIAL COURT IN THE GROUNDS OF APPEAL

Now in the absence of any challenge of the ratio of the trial tribunal in any of the grounds of appeal it will be inappropriate for this court to interfere with the finding of the tribunal, see JOSADEG NIG. LTD V. NDIC (2004) LPELR-5771 AT 12. The Cross Appellants failed to challenge the finding of the trial tribunal which stated that they took several steps, and thus waived their right to have the petition dismissed; it is my humble view that only way to raise such a point is by a ground of appeal attacking the failure of the lower court to pronounce on the issue. The reason is that generally an appellate court is only empowered to deal with matters duly canvassed at and determined by the court from which the appeal arises. See ODOM V. PDP (2015) 6 NWLR (1456) 527, 550. Furthermore, it has been held that a ground of appeal must be a challenge to the validity of the ratio of a decision and that there cannot be an appeal against what has been decided. See AMOBI V. NZEGWU (2014) 2 NWLR (1392) 510, 544 and ABDULLAHI V. STATE (2013) 11 NWLR (1366) 435, 449. This court sees no reason to disturb the finding of the tribunal, accordingly this issue is resolved in favour of the cross respondents, and against the cross appellants. PER – MOHAMMED MUSTAPHA, JCA

JURISDICTION – WHETHER OR NOT A TRIBUNAL HAS JURISDICTION TO ENTERTAIN MATTERS ARISING FROM THE CONDUCT OF A PRIMARY ELECTION

It is indeed settled law now that a tribunal has jurisdiction to entertain matters arising from the conduct of primary election because it is vital to the qualification of that party’s candidate to contest an election; especially as section 87 (1) makes it mandatory for political parties to hold primary elections for those seeking to contest the main election, see PDP V. SYLVA (2012) 13 NWLR PT 1316 at 140. PER – MOHAMMED MUSTAPHA, JCA

PRE AND POST ELCTION ISSUE – WHETHER OR NOT THE QUESTION OF QUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTION IS A PRE OR A POST – ELECTION ISSUE

Contrary to the submissions of learned counsel to the Cross Appellant the question of qualification of a candidate to contest an election could very well be a pre and post-election issue; that is why when a pre-election matter regarding the conduct of a party primaries arises after the date slated for election, the appropriate forum for such an issue is the election Tribunal, i.e. where the issue constitutes one of the grounds of questioning an election, when the complaint comes under section 138 of the Electoral Act the proper venue is the election Tribunal; see GWEDE V INEC (2014)18 NWLR PT.1438 at 100, HON. AIDOKO ALI USMAN & ANR V OCHEJA EMMANUEL DANGANA & ORS CA/A/EPT/582/2011, and another decision of this court in HON. FIKI ERIC OLORUNJUWON & 1 OR V. INEC & 2 ORS in CA/A/EPT/342/2015 where it was held that:

“…it is settled that issue of qualification of a candidate to contest election is both a pre-election and post-election issue, and as such justiciable before an election Tribunal…A candidate of a political party who perceives that a contending opponent from another political party was not qualified to contest an election due to the violation of the procedure for nominations of candidates by holding primaries pursuant to section 87 (1) and (2) of the Electoral Act can approach a federal High Court or State High Court before the election or approach the appropriate election Tribunal after the conduct of election on the grounds of disqualification as encapsulated in section 138 (1) of the Electoral Act.”

 

PER – MOHAMMED MUSTAPHA, JCA

CASES CITED

STATUTES REFERRED TO

Electoral Act, 2010

Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

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