Judgment
MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): By an amended originating summons dated 23rd March 2021, the appellant commenced suit No.
CV/774/2021 at the High Court of the Federal Capital Territory seeking answer to the following question:- “Considering Article 8,(x), (xiii), (xv), (xvii), (xviii), (xix) of the PDP, Electoral Guidelines for Primary Election, Sections 12, 13, 14 & 15 of the Constitution of the People’s’ Democratic Party (amended in 2017), whether it was right for the 1st Defendant, during its South East Zonal Congress of 6th March 2021, to arbitrarily publish in its brochure, the name of a state chairman, Exco members, Local Government Chairman and National Delegates, without recourse to the use and adoption of the extant List already inaugurated Party Officers and Delegates that emerged from the Anambra PDP congresses conducted on 28th November 2017 [validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report], under the supervision of Sir Chukwusa Umeaba, Acting Chairman, State Caretaker Committee.”
Further to the determination of the question, he sought the following reliefs from the trial High Court:- “1. A declaration that by virtue of Article 2 of the Constitution of the Peoples’ Democratic Party (amended 2017), the said Constitution is supreme and it has a binding force on all members and organs of the Peoples’ Democratic Party, and any action or step taken contrary to the relevant provisions of the Constitution is unlawful, illegal, null, void and of no effect whatsoever. 2.
A declaration that it is unlawful for the 1st Defendant, whether during its South-East Zonal Congress of 6th March 2021 or at any time to adopt or publish the name of a State Chairman, alongside persons purporting to be his Exco members, Local Government Chairman and National Delegates, without recourse to the extant list of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP Congresses conducted on 28th November, 2017 and 1st December, 2017 validated by the Senator Grace Bent Ward Congress Appeal Panel report and barrister Ukpai Ukairo Local Government Appeal Report, under the supervision of sir Chukwudi Umeaba, as Acting Chairman, State Caretaker Committee.
3. A declaration that the arbitrary imposition by the 1st defendant on its members, of a State Chairman, Exco members, Local Government Chairman and National Delegates, as contained at pages 14, 15 & 16 of the Defendant’s Brochure for the South- East Zonal Congress of 6th March, 2021, is ultra vires its powers, unlawful, invalid, avoid and of no effect whatsoever. 4.
An order nullifying and setting aside all congresses, designations or appointments made by the 1st Defendant with respect to the State Chairman for PDP Anambra State Chapter, Exco Members, Local Government Chairman, National Delegates, as contained at pages 14, 15 & 16 of the South-East Zonal Congress Brochure of 6th March, 2021, for being invalid, unlawful and ultra vires the powers of the Defendant, the same not being in alignment with the list of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP Congresses conducted on 28th November, 2017 and 1st December, 2017, validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report, under the supervision of Sir Chukwudi Umeaba, as Acting Chairman, State Caretaker Committee. 5.
An order compelling the 1st Defendant, during the conduct of all elections in Anambra State, to henceforth adopt, employ recognize and use only the list of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP conducted on 28th November, 2017 and 1st December, 2017 [validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report], under the supervision of Sir Chukwudi Umeaba, who shall continue to act, for all intents that purposes, as PDP Chairman, Anambra State Caretaker Committee. 6.
An order of Perpetual injunction restraining the 1st Defendant, whether by itself, cronies, allies or representatives from further recognizing, dealing with or parading any person or group of persons listed at pages 14, 15 & 16 of the Brochure for the South-East Zonal Congress of 6th March, 2021, either as State Chairman, Exco member, Local Government Area Chairman or National Delegates of the Peoples Democratic Party, Anambra State Chapter, except the list of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP conducted on 28th November 2017 and 1st December, 2017 [validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report], under the supervision of Sir Chukwudi Umeaba, who shall continue to act, for all intents that purposes, as PDP Chairman, Anambra State Caretaker Committee.”
The respondents herein, being the respective defendants at the trial Court, contested the claim.
The three further filed notices of preliminary objection to challenge the competence of the suit and the trial Court’s jurisdiction to entertain same. 1st respondent/defendant’s notice of objection filed on 25th March 2021 was founded on the grounds that:- “(i) The High Court of the Federal Capital Territory lacks the territorial jurisdiction to adjudicate on the subject matter of this suit which touches in and concerns the Defendant’s congresses which took place in Anambra State. (ii) The claims in this matter border (sic) on the internal affairs of a political party and do not fall within the special jurisdiction of this Court conferred by Section 87(9) of the Electoral Act 2010 (as amended) and therefore this Honourable Court does not have jurisdiction to entertain same.”
Similar grounds to the foregoing were inter-alia raised by the 2nd and 3rd defendants/respondents challenging the competence of the appellant’s suit.
On the objections of the defendants/respondents, the trial Court at page 3006 of volume 3 of the record of appeal firstly enthused as follows:- “On the basis of the foregoing summation of what this Court considers to be the grievances of the Claimant in the present suit, it is not difficult to arrive at the determination that this Court is invested with jurisdiction to determine this suit.
It must be seen that the focus of the Claimant is not so much on what took place physically at the South East Congress of the 1st Defendant in Enugu on 6th March, 2021, but so much on the process orchestrated by the 1st Defendant for the conduct of the Congress.” (Underlining supplied for emphasis).
The Court proceeded conclusively at page 3006 of the same volume 3 of the record thus:- “In my opinion, the issues as to the conduct of or the process adopted by the 1st Defendant, in alleged violation of its Constitution, have no territorial boundaries; in so far as the cause of action itself is such that this Court, by Section 257(1) of the Constitution is invested with jurisdiction to adjudicate upon. I so hold.
What is more, the 1st Defendant, which is the alleged principal culprit of the violations complained of by the Claimant, through its National Officers, is eminently resident in the Federal Capital Territory. It is my further view, in that regard, that the Claimant is not precluded from instituting the instant suit in this Court; just as he is equally at liberty to institute the same in Anambra State if he so wishes. I so hold.” (Underlining supplied for emphasis).
On overruling the objections raised against appellant’s claim and the Court’s jurisdiction to entertain same, the Court in its judgment delivered on 9th June 2021, granted all the reliefs the appellant sought from it.
Dissatisfied with the decision the 1st respondent, by a notice dated 15th June 2021, appealed to the Court of Appeal, Abuja Division.
It is evident from the record of this appeal that the appellant herein was obliged by the lower Court, as respondent to the appeal thereat, having been served with the appellant’s brief of argument, to file his brief of argument within five days. The lower Court’s order in that regard was made on 15th July 2021. On the 26th July 2021, when the appeal subsequently came up for hearing, the appellant had not filed his brief as ordered by the Court.
Appellant’s oral preliminary objection challenging the Court’s jurisdiction as well as the competence of 1st respondent’s notice of appeal allegedly not served on him was overruled by the Court. The Court proceeded to hear the appeal on the 1st respondent’s, the appellant thereat, brief of argument alone.
In a unanimous judgment delivered on 30th July 2021, the lower Court allowed the appeal and set-aside the trial Court’s judgment for want of territorial jurisdiction. Dissatisfied, the appellant on the 6th August 2021 filed the notice of the instant appeal containing twelve grounds.
1ST RESPONDENT’S PRELIMINARY OBJECTION The 1st respondent, Peoples Democratic Party (P.D.P), on the 18th of October 2021 filed notice of preliminary objection pursuant to Section 285(12) and (14) of the 1999 Constitution as altered by the Fourth Act No 21 of 2017, Order 2 Rule 9 of the Supreme Court Rules and the inherent powers of the Court challenging the competence of the appeal for being statute barred. By the preliminary objection, it is urged that the incompetent appeal be struck out.
Section 285 of the 1999 Constitution as altered by the Fourth Alteration Act 2017 is the fulcrum of 1st respondent’s preliminary objection. It is submitted that the instant appeal is caught up by subsection 14 of the section as interpreted by this Court inter-alia in APC V. UMAR (2019) 8 NWLR (PT 1675) 564, TOYIN V. MUSA & ORS (2019) LPELR – 49328 (SC), ONYEKE V. PDP & ORS (2019) LPELR – 47810 (SC) and KUSAMOTU V. APC & ORS (2019) LPELR – 46802 (SC).
Learned counsel also relies on one of the earlier decisions of this Court to show that the principle enshrined in Section 285 of the 1999 Constitution as altered predates the section. Learned counsel refers to the grounds in support of appellant’s exparte-application of 12th March 2021 at the lower Court which shows clearly that his claim is an election related matter. He argues that time has always been held to be of essence in such matters.
The reliefs sought by the appellant as summarized by the trial Court at pages 3003 – 3005 of volume 3 of the record of appeal show very clearly that the suit that brought about this appeal was a pre-election matter.
The judgment of the lower Court that brought about the appeal, learned counsel to the 1st respondent submits, is shown at page 3225 of volume 4 of the record of appeal to have been delivered on July 20th, 2021 while the notice of appeal against the judgment was filed on 6th August, 2021. Appellant’s brief of argument was, on the other hand, filed on 4th October, 2021. Yet by Section 285(12) of 1999 Constitution (as altered), it is contended, appellant’s appeal shall be heard and determined within sixty days from the date of filing the appeal.
On the strength of all the cases learned counsel cited and relies on, he urges that the appeal has become spent and statute-barred. Same, learned counsel entreats, be struck out.
I entirely disagree with appellant senior counsel’s submissions that 1st respondent’s counsel completely misunderstands the meaning this Court places on a “pre-election suit” particularly as provided for by Section 285 of the 1999 Constitution as altered. Mr. Nwafor is right in his view that the urgency inherent in a claim alone does not make the claim “a pre-election matter.” Section 285(14) of the 1999 Constitution (as amended by the 4th alteration), learned senior counsel for the appellant rightly insists, regulates and defines a pre-election suit.
There are other considerations to learned appellant counsel’s submissions that endear them to one.
It is certainly evident from the questions and reliefs the appellant sought at the trial Court that the suit is not a complaint about any election. From the appellant’s amended originating summons and the supporting affidavit thereto, his grudge is about 1st respondent’s removal of some names of lawfully inaugurated delegates and party officers from a brochure the 1st respondent arbitrarily published. Indeed nowhere by his claim, as further submitted by Mr.
Nwafor, did the appellant complain of the conduct of the congresses from which emerged the inaugurated delegates and party officers some of whose names were allegedly omitted from the brochure arbitrarily published by the 1st respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The appellant, one must also agree with senior counsel, does not pretend or assert to be a dissatisfied aspirant, a participant in the election or process that led to the selection of those whose names the 1st respondent arbitrarily omitted in the brochure it published as the party’s delegates in the yet to hold election then or as executive officers of the 1st respondent, the political party itself.
With these antecedents, appellant’s senior counsel cannot be faulted, appellant’s suit is not, on the authorities, caught up by Section 285 (14) of the 1999 Constitution (as altered) to be adjudged statute barred.
Certainly, it is settled that a case is only authority for what it decided.
Even before the codification of the principle relating to pre-election suits in Section 285 of the 1999 Constitution (as altered), this Court in AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR- 24564 (SC), a decision alluded to and relied upon by the 1st respondent/objector, defined a pre-election matter thus:-
“Now, a pre-election matter as the phrase connotes is a cause of action which predates and does not constitute any complaint against the actual conduct of an election … this Court has held that issues of nomination and sponsorship of party’s candidates for an election precede the election and are therefore pre-election matters.” (Underlining supplied for emphasis).
The 1999 Constitution (as altered) which overrides any other law or principle to the contrary enunciated by any Court, including the apex Court, has maintained the foregoing position of the Court on the principle when in Section 285 thereof it elaborately provides for what a pre-election suit connotes.
Section 285(14) of the said Constitution provides:- “(14) For the purpose of this Section, “pre-election matter means any suit by- (a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election. (b) An aspirant challenging the actions decisions or activities of Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or Any Act of the National Assembly regulating election in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the election or nomination of candidates and participation in an election. (c) A political party challenging the actions, decisions, or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election time table for an election, registration of voters and other activities of the commission in respect of preparation for an election.” It is a precondition that for a claim to come squarely within the purview of the foregoing clear and unambiguous section, it must be instituted either by an aspirant, an aggrieved participant in the process or event of the party’s congresses or the nomination or sponsorship of the party’s candidate in a subsequent election or the political party, itself, whose candidate is being excluded by INEC from participating in the election.
In APC v IBRAHIM UMAR (supra), this Court in interpreting the subsection succinctly puts the principle at pages 570 – 571 of the law report as follows:- “It is also the grouse of the respondents/plaintiffs that as per the originating summons, they paid for nomination forms to participate in the ward congresses of the appellant (party) but they were stopped by the party officials taking part in the exercise, leading to their being disenfranchised and that it was sequel to that, that they approached the trial Court for redress.” Learned senior counsel for the appellant appositely referred to the foregoing passage in support of his submission that the instant suit does not come under Section 285 of the 1999 Constitution and, therefore, not a pre-election matter.
This Court is equally bound by its foregoing enunciation. 1st respondent’s objection to the competence of the notice of appeal and by extension the jurisdiction of this Court to entertain same accordingly fails and is hereby dismissed.
THE APPEAL At paragraphs 3.1.1 – 3.1.6 at pages 3 – 4 of the appellant’s brief of argument, six issues have been formulated as having arisen for the determination of his appeal. For now, the two most relevant of these issues, in my considered opinion, are:- “3.1.1. Whether the Court of Appeal ought not to have declined jurisdiction to entertain and determine Appeal CA/A/359/2021 between Peoples Democratic Party V.
Samuel Anyakorah & 2 Ors, after the appellant raised a preliminary objection at page 3222 of the Record of Appeal, for non-service of the originating Notice of Appeal on him (Distilled from Ground three of the Notice of Appeal filed on the 6th day of August 2021) and 3.1.4. Whether the Court of Appeal was right when their Lordship held at page 3256 of the record of appeal, that the trial Court has no iota of jurisdiction to entertain the case (Distilled from Grounds Seven, Ten and Twelve of the Notice of Appeal filed on the 6th day of August 2021).”
The respondents have distilled their own issues in their respective briefs urging that the appeal be determined on their basis. However, appellant’s foregoing two issues shall be the interim basis of the determination of the appeal.
On the first issue senior counsel Nwafor who adopted and relied on the appellant’s brief wherein this Court’s decision in IHEDIOHA & ANOR V. OKOROCHA & ORS (2015) LPELR – 40837 (SC) has been cited, emphasizes that the service of a notice of appeal, an originating process, is a fundamental precondition to the exercise of jurisdiction by the appellate Court. Further referring to NATIONAL BANK OF NIGERIA LTD V. GUTHRIE NIGERIA LTD & ANOR (1993) LPELR 1952 (SC), learned senior counsel submits that failure to serve the originating process affects the appellate Court’s Jurisdiction.
None service of the originating process renders the proceedings a nullity. The lower Court’s decision at page 3222 of the record overruling the appellant’s preliminary objection that he had not been served the notice of appeal, it is argued, is perverse. This decision of the Court, it is contended, is not supported by any part of the record of appeal, including the additional record, volume 4, the lower Court purportedly examined before arriving at its finding. A Court’s finding that does not draw from the evidence on record, being speculative, it is contended, remains unavailing.
By Order 7 Rule 13(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018, whoever served the notice of appeal is duty bound to depose to relevant facts in an affidavit setting out the date, time, place and mode of service, the process served as well as the fact of the acknowledgment of the service. From all the facts available in the record of this appeal, it is contended, all the necessary information to establish the service of the notice of appeal on the appellant, a respondent thereat, are lacking.
In the absence of any proof of service of the notice of appeal on the appellant at the lower Court, any proceedings of the Court, learned senior counsel maintains, are null and void. Inter-alia relying on KOKU V. KOKU (1999) 8 NWLR (PT 616) 672, ORJI V. PDP (2009) 14 NWLR (PT 1161) 310 at 407 and ODUKWE V. OGUNBIYI (1998) LPELR – 2239 (SC), learned senior counsel prays that the issue be resolved in appellant’s favour and the appeal be allowed.
It must outrightly be pointed out that the learned respondents’ counsel are severally irreproachable in their respective submissions that the appellant is wrong in the procedure he resorted to in impugning the record of appeal at the lower Court. The aspects of the record of appeal the appellant concedes are faultless does indicate that the 1st respondent herein, as appellant at the lower Court, had sought and obtained from the Court an order for accelerated hearing and abridgement of appellant’s time to file his brief.
It is indeed most illogical for the appellant, inspite of being represented by Mr. Adebayo of counsel, to agree to respond to an appeal which notice he had not been served. My examination of the record further reveals that the lower Court at pages 3205 – 3224, before overruling senior Counsel Mr.
Nwafor, had examined, as it was bound to, the record of the appeal before it, to infer that the appellant had infact been served. I unreservedly agree with learned respondents’ counsel that the procedure the appellant chose to impugn the record or appeal at the lower Court is not only wrong but unethical to say the least. I am entirely in agreement with learned counsel. Let me elaborate at once.
Orders 8 (1) & (2) of the Court of Appeal Rules 2016 invest the Registrar of the trial Court, within 60 days after the filing of the notice of appeal, the power to compile the record of appeal to the appellate Court. He also has the power to summon the parties to the appeal for the purpose of settling the documents to be included in the Record of Appeal. The Registrar by rule 3 of the same order, on satisfying himself that notice had duly issued on parties, whether or not they attend, proceed to settle and determine the content of the Record of Appeal.
It becomes the duty of the Appellant, 60 days after the filing of this notice of appeal and on the trial Court Registrar’s failure to settle the record of appeal, to do so. Whether settled by the trial Court’s Registrar or the appellant himself, the record of appeal, shall, by Order 8 Rule 9 (a) of the Court of Appeal Rules, inter alia contain “a copy of the notice of appeal and other relevant documents filed in connection with the appeal.
Notwithstanding by whom the record of appeal is compiled, it shall, by Order 8 (10) be transmitted to the appellate Court within the time specified by the rules or as extended by the Court and a notice to all the parties to the appeal of the fact of the transmission of the record to the Registrar of the Court of Appeal served on the parties to the appeal.
The law is long settled that the parties to an appeal as well as the appellate Court are bound by the content of the record of appeal and neither can ascribe to or exclude from the record anything outside or within it. See TEXACO PANAMA INC V. SPDC NIG LTD (2002) LPELR – 3146 (SC) GONZEE NIG LTD V. NERDC & ORS (2005) LPELR – 1332 (SC) and GARUBA & ORS V. OMOKHODION & ORS (2011) LPELR -1309 (SC).
Again, it is trite that where, as in the case at hand, the appellant challenges the correctness of the record of appeal before the lower Court by asserting that same did not contain proof of service of the notice of appeal on him, it was his duty to swear to an affidavit setting out the fact of the omission for the affidavit to be served on the Registrar of the trial Court who compiled and transmitted the record of appeal to the lower Court. Failure to do so remains fatal to appellant’s preliminary objection as to the competence of the notice of appeal.
The lower Court is correct, on that note, to have overruled him. More importantly, the certified true copy of the additional record of appeal transmitted to this Court consists of the 1st respondent’s notice of appeal at the lower Court as well as the request letter by virtue of which the notice of appeal was transmitted to this Court. The notice of appeal, on being examined, bears out the lower Court’s finding that the appellant had indeed been served 1st respondent’s notice of appeal. The Court was entitled to examine the record of appeal before it and make appropriate findings.
See PDP & ORS V. BARR. SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC) and OLADAPO V. STATE (2020) LPELR – 50553 (SC), EROMOSELE V. FRN (2018) LPELR – 43851 (SC) and AKEREDOLU V. ABRAHAM & ORS (2018) LPELR – 44067 (SC). Appellant’s senior counsel’s attitude of putting the lower Court’s justices on the spot and behind their back in relation to the use of unauthentic record of appeal is unfair, unethical and deplorable. Having failed to rebut the presumption of regularity, the record of appeal enjoys, appellant’s first issue does not, therefore, avail him. It is resolved against him.
My Lords, I have stated somewhere in this judgment that the respondent had challenged the jurisdiction of the trial High Court of the Federal Capital Territory Abuja, to entertain and determine appellant’s claim.
In his judgment at pages 3003 – 3006, the trial judge wrote: “To start with my understanding of the question posed by the claimant for resolution of the substantive suit is that the he requires the Court’s determination of the point as to whether or not the 1st Defendant had not violated certain provision of its Electoral Guidelines for Primary Elections and its Constitution as it relates to the conduct of South East Zonal Congress of 6th March, 2021, when it refused to recognize and make use of and adopt the purported authentic List of Delegates for Anambra State.
By my further understanding and going by the reliefs claimed by the claimant, what the claimant frowns at is not the outcome of the said South East Congress held in Enugu, on 6th March, 2021, but the conduct of the 1st Defendant at the said Congress. As such, it is with respect to the conduct of the 1st Defendant, in allegedly violating the Constitution of the party, at the said Congress, that the Claimant has sought declaratory reliefs upon.
I also agree with the submission of the Claimant’s learned counsel in this regard, that the fulcrum of the Claimant’s claim, is not necessary about the said South East Congress of 6th March, 2021, but the actions of the 1st Defendant, which were consummated by the publication of the Brochure used at the said Congress, containing the purported unauthorized List of Delegates from Anambra State.
The Claimant further seeks the intervention of the Court in compelling the 1st Defendant to uphold the purported authentic List of Delegates from Anambra State as against the list used during the South East Congress in subsequent elections of which the 1st Defendant is involved in Anambra State.” (Underlining supplied for emphasis).
The Judge, after considering some decision of this Court cited by the defendant’s/objectors, departed from the decisions to overrule the objectors. He concluded thus:- “On the final note on this point, it is pertinent to reiterate the well principle that each case is decided on its peculiar facts and circumstances. This Court is no doubt mindful of the gamut of authorities cited and rely upon by the respective learned counsel of the Defendants/Objectors on the issues of territorial jurisdiction, some of which had be copiously captured in the foregoing.
However, it must be appreciated that those cases were decided on their peculiar facts and circumstances, which were apparently not on all fours with the facts and circumstances of the case at hand. For that reason, I must hold, with respect, that apart from the general principles set down in those authorities, the peculiarity of the instant case makes them inapplicable. I so hold.” (Underlining supplied for emphasis). See the Administrators & Executors of the Estate of Abacha V. Eke-spiff (2009) 7 NWLR 97 (SC); Emeka V. Okadigbo (2012) LPELR -9338 (SC).
The Judge thereafter found merit in the claim and obliged the appellant accordingly. In allowing the appeal and setting aside the trial Court’s judgment, the lower Court in its judgment first enthused at page 3238-3239 thus:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“… The learned trial Judge shows a deep knowledge of the law dealing with his territorial jurisdiction. By our norms of stare decisions, all that was required of the learned trial judge was for him to apply the law as espoused by the superior Courts. The issue of territorial jurisdiction of the High Court of the Federal Capital Territory has long been settled … The only issue that alarms us in this Court and which do beat our imagination is why we still see the endless and braceless refusal of the lower Court to apply the law. From the cases of DALHATU V.
TURAKI (2003) 1 NWLR (PT 843) 310, MAILANTARKI V.
TONGO (2018) 6 NWLR (PT 1614) 69, the Supreme Court of Nigeria, the apex Court whose decisions are final under Section 235 of the 1999 Constitution and binding on all the Courts from this Court to the least Court in the land had repeatedly held that the jurisdiction vested in the FCT High Court by Section 257 (1) of the Constitution to hear and determine any civil case in which the existence or extant of a tight, power, duty, liability, privilege, interest, obligation or claim in issue, is only to the extent of the disputes that arise within the territory of the Federal Capital Territory, Abuja.
The FCT High Court has no extra territorial jurisdiction.” (underlining supplied for emphasis).
The foregoing is the lower Court’s judgment the appellant herein seeks overturned. In MAILANTARKI V. TONGO (supra), a case the trial Court referred to but wrongly distinguished from the facts in the instant case, this Court in following its decision in DALHATU V. TURAKI restated the principle thus:- “The law is settled that the jurisdiction of a Court of record, in its broad and substantive sense, cannot be conferred by the Rules of Court.
The Rules of Court are only made, pursuant to the powers conferred on the heads of Courts by the Constitution to make rules, to regulate practice and procedure in their respective Courts. The rules they make are only to regulate the practice and procedure in their respective Courts. The rules do not confer jurisdiction on the Court to entertain causes or matters. Rather, the jurisdiction of Courts in Nigeria is either conferred or vested by the Constitution or the enabling statute establishing the Court. This is my understanding of the dictum of Obaseki, JSC, in CLEMENT V.
IWUANYANWU (1989) 4 SC (PT.
II) 89; (1989) NWLR (PT. 107) 39, on the question whether Rules of Court confer substantive jurisdiction on the Court they relate to … It is my considered view that the jurisdiction vested in FCT High Court by Section 257 (1) of the 1999 Constitution to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue is only to the extent of the disputes that arise within the territory of the Federal Capital Territory, Abuja …… No Court in any State, including the FCT High Court has extra-territorial jurisdiction.”
The lower Court’s judgment, learned senior counsel for the appellant insists is set – aside drew from this Court’s foregoing decisions which not only bind lower Courts but this Court as well. I agree entirely with learned respondents’ counsel that being incumbent on the Courts to follow earlier decisions of this Court on the same facts and legislation, it is legally impossible to accede to appellant senior counsel’s entreaty.
A principle of law so settled by the decision of a competent Court in a case in which it directly and necessarily evolved ceases to be open to fresh examination or ruling by the same Court or those bound by the Court’s earlier decision except for compelling reasons and in exceptional circumstances. See ARDO V. NYAKO & ORS (2014) LPELR – 22878 (SC) and A.G. LAGOS STATE V. EKO HOTELS LTD & ANOR (2017) LPELR – 43713 (SC).
The appellant neither succeeded in distinguishing the facts of the instant case from those in the earlier cases by virtue of which this Court ruled on the principle nor provided us the exceptional circumstances on the basis of which the Court is to depart from its earlier decisions. This informs the resolution of the second issue against the appellant. See PAUL ODI & ANOR V. GBANIYI OSAFILE & ANOR (1985) LPELR 2212 (SC), OKULATE V. AWOSANYA (2000) 2 NWLR (PT 646) 530 and DR. TUNJI BRAITHWAITE V. SKYE BANK PLC (2012) LPELR – 15532 SC.
The resolution of the issue against the appellant necessitates the affirmation of the lower Court’s judgment setting aside the trial Court’s decision for want of jurisdiction. It raises the further question whether or not the consideration of appellant’s other issues as well as the cross-appeals against the very decision of the lower Court that arises from the trial Court’s null and void judgment serves any purpose. I think it does not.
We must remind ourselves, the Court, parties and counsel that the exercise of the right of appeal is entirely statutory. It must be done within the context of the statute that donates the right. The appellant’s right of appeal to this Court as contained in Section 233(2) of the Constitution is exercisable from “decisions of the Court of Appeal.” It is incumbent for the appellant to all through comply with the provision otherwise the Court will be without the competence to entertain and determine the appeal in whole or part.
The judgment the appellant purports to appeal from is founded on the trial Court’s null and void decision. Being a nullity, it is as if the trial Court’s proceedings had never taken place. The lower Court, by extension, cannot be said to have made any decision in an appeal from a non-existent judgment of the trial Court. Appellant’s right of appeal does not exist where the lower Court has not made any decision. SeeDEDUWA & ORS V. EMMANUEL OKORODUDU & ORS (1976) VOLUME 10 NSCC 499 at 504 – 504, AUTOMATIC TELEPHONE & ELECTRIC CO LTD V.
FEDERAL MILITARY GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA (1968) 1 ALL N.L.R 429 at 432 and INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR – 1510 (SC).
In the instant case this Court, on the authorities, in the absence of any subsisting decision of the trial Court from which the appeal at the lower Court was heard and determined, lacks the jurisdiction to consider any issue from grounds of appeal other than grounds against the lower Court’s decision on the territorial jurisdiction of the trial Court over appellant’s claim. This Court’s jurisdiction to determine the cross-appeals is not any different. They are still appeals founded on their grounds argued on the basis of identified issues.
It is for this reason that appellant’s remaining issues as well as the cross-appeals are hereby discountenanced.
In sum, the instant appeal being unmeritorious is hereby dismissed at a cost of N500,000 against the appellant in favour of each of the respondents. The appellant shall pay a cumulative cost of N1,500,000.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Hon. Justice Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal lacks merit.
In an abortive attempt to excuse his indolence, the appellant called the integrity of the proceedings of the lower Court and of this Court, ipso facto, into question. Learned counsel for the appellant submitted thus: A literal construction of the above finding, leans toward the fact that the lower Court had recourse to a special record, and did confirm by documentary evidence that the said Notice of Appeal was indeed served on the Appellant.
In the ordinary course of business, the said ‘record’ ought to be the Record of Appeal transmitted to the lower Court, consequent upon which the Lower Court’s inherent powers and or jurisdiction was activated. Unfortunately, the said ‘record’ which has now been transmitted by the registry of the lower Court to this Court [as a 4-volume Record of Appeal spanning page 1-3280], does not disclose this phantom acknowledgment of service. It is nowhere found therein. We recognize that the lower Court was not at any time on trial.
Albeit, as an intermediate Court of superior record, the lower Court should at all times hand down decisions, with reservations that such decisions may become a subject of appeal.
In effect the lower Court ought to have made actual and specific references to particulars of service discovered in the said ‘record,’ and the nature of the ‘record.’ The irresistible conclusion one is bound to arrive at, is that there was either no proof of service of the Notice of Appeal or that the lower Court admitted itself to an extraneous record which was exclusively available to only the 1st Respondent and the Lower Court. Suffice to say that the Appellant was not evenly placed with the 1st Respondent, in the determination of the appeal…..
The appellant characterized the record used by the lower Court as a “special record” which was different from the one he had. In effect, the appellant is challenging the record of appeal relied on by the lower Court to draw its conclusions. The record of appeal is meant to serve as a guideline of all that transpired at the lower Court from which it is being transmitted.
Therefore, an appellate Court has no power to draw any conclusion which is not supported by the record before it, Garuba v Omokhodion (2011) 15 NWLR (pt. 1269) 145.
However, where the record of appeal has been duly and properly compiled, authenticated and certified as prescribed by law, there is a presumption of correctness of facts contained therein by virtue of Section 147 of the Evidence Act. This presumption is rebuttable.
Where the appellant, as in this case, found that the record of appeal was incomplete, he had the option of challenging the record of appeal via the proper procedure. Counsel for the appellant must be fully aware that to challenge the record of appeal, an affidavit first, has to be filed, which was not done in this case, Shitta-Bey v Attorney-General of the Federation (1998) 10 NWLR (pt. 570) 392; Sommer v Federal Housing Authority (1992) 1 NWLR (pt. 219) 548; Chief Adegbuyi v All Progressive Congress and Ors. (2015) 2 N WLR (pt. 1442) 1.
It is also interesting to note that this speculation on the basis of which we have been invited to give a different meaning to the evidence recorded was advanced at the lower Court, considered and, during the course of proceedings, proof of service was produced before the lower Court upon which satisfaction, it gave its decision.
Perhaps, I should remind learned Counsel of their duty to maintain an unreserved respect for the Court. Counsel should not make remarks that could lower the integrity of the Court and should not allow members of the public to do so directly or indirectly. See Nwafor Orizu v Anyaegbunam (1978) 5 SC 21. Allegations, where founded on concrete facts, as against sentiments and self-interest, should be made to the appropriate authority and in the appropriate manner.
It is for these, and the more elaborate reasons in the leading judgment, that I too shall enter an order dismissing this appeal. I also abide by any consequential orders made in the leading judgment.
UWANI MUSA ABBA AJI, J.S.C.: I was privileged with the draft leading judgment of my learned brother, Musa Dattijo Muhammad, JSC, and I agree entirely with his reasoning and conclusion that the appeal be dismissed.
The 1st Respondent (PDP) conducted its Anambra Ward, Local Government and State Congresses on 25/11/2017, 1/12/2017 and 4/12/2017, respectively.
The elected officials have been sworn in and same validated by the judgment of the FCT High Court, Abuja, delivered on 24/5/2018.
The Appellant, who claimed to represent all the Local Government Chairmen and Ward Executives, who emerged from the Anambra PDP Ward Congress conducted on 28/11/2017, sued the Respondents after more than 3 and half years, at the time when the Anambra State Governorship primary election was to be conducted on 26/6/2021, seeking for determination whether the 1st Respondent did not violate provisions of its Electoral Guidelines in the publication of the Brochure used to conduct its South East Zonal Congress of 6/3/2021, when it refused to recognize or make use of the authentic list of delegates for Anambra State, thus: “Considering Article 8,(x), (xi), (xiii), (xv), (xvii), (xviii), (xix), of the PDP, Electoral Guidelines for Primary Election, Sections 12, 13, 14 & 15 of the Constitution of the People’s Democratic Party (amended in 2017), whether it was right for the 1st Defendant during its South East Zonal Congress of 6th March, 2021, to arbitrarily publish in its brochure, the name of a State Chairman, Exco members, Local Government Chairman and National Delegates, without recourse to the use and adoption of the extant list already inaugurated Party Officers and Delegates that emerged from the Anambra PDP congresses conducted on 28th November, 2017 (validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report), under the supervision of Sir Chukwusa Umeaba, Acting Chairman, State Caretaker Committee.”
By the above, he sought 6 declaratory reliefs. The trial Court granted all the reliefs sought by the Appellant. Dissatisfied, the 1st Respondent (PDP) appealed to the lower Court. At the hearing, by a preliminary objection, the Appellant challenged the jurisdiction of the lower Court to hear the appeal on the ground of defective Notice of Appeal. Overruling the preliminary objection, the lower Court set aside/nullified the judgment of the trial Court on the ground that the trial Court lacked territorial jurisdiction to hear and determine the suit.
Hence, this appeal by the Appellant, who seeks for determination 6 issues. The 1st Respondent however condensed them to 2 issues, which I find appropriate for consideration. I shall consider them conterminously in a nutshell since my learned brother has done much justice to it and I am on same page with him: 1.
Whether the lower Court was wrong in the circumstances of this appeal to have dismissed the preliminary objection raised by the Appellant against an alleged non-service of the Notice of Appeal on the Appellant and for alleged failure to appeal against the finding of the trial Court that the 1st Respondent has no defence to the action. 2.
Whether the lower Court was wrong in the circumstances of this appeal in its determination that the trial Court has no iota of jurisdiction to hear and determine the claims of the Appellant and in setting aside the decision of the trial Court nullifying the Practice Direction issued by the Chief Judge of the High Court of the Federal Capital Territory.
The lower Court confirmed service on the Appellant when it found at page 3235 of Volume 4 that “The Appellant (sic) said Notice was served on the Respondents on 15/6/2021. We checked in our record as required and we confirm that there was service of the originating notice of appeal on the 1st Respondent on 17/06/2021.”
The Court must take judicial notice of its records and proceedings. See Per NNAEMEKA-AGU, JSC, in GBANIYI OSAFILE & ANOR V. PAUL ODI & ANOR (1990) LPELR- 2783(SC) (PP. 43-44 PARAS. F).
The record of the Court is presumed to be correct until it is successfully impugned. See NOBIS – ELENDU V. INEC & ORS. (2015) LPELR 25127 (SC) AT 31 (B-D).
The parties and the Court are bound by the contents of the record of proceedings of the Court duly certified as correct and true until the presumption of its correctness is rebutted. See TEXACO PANAMA INC. V. S.P.D.C. (NIG,) LTD. (2002) LPELR 3146 (SC) AT 19 – 20 (F – B).
May I further state that the best and only way to challenge the records of the Court is by an affidavit and not by mere arguments or written submissions. The Appellant has not been able to prove non-service. This issue therefore is resolved against the Appellant. All the events that occurred in the case leading to this appeal were in Anambra and Enugu States as clearly spelt out by the Appellant in his claims vide the Originating Summons. Thus, the FCT High Court does not have any iota of jurisdiction to entertain the Appellant’s case. It was forum shopping. See MAILANTARKI V.
TONGO & ORS (2017) LPELR-42467(SC) (PP. 26-27, PARAS. D-E).
I affirm the judgment of the lower Court and agree with my learned brother, Musa Dattijo Muhammad, JSC, that the appeal be dismissed. I also concur to the order as to costs awarded.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now the judgment just delivered by my learned brother MUSA DATTIJO MUHAMMAD, JSC, and I am in complete agreement with his Lordship’s reasoning and conclusion that the appeal is unmeritorious and should be dismissed.
The contention of the 1st Respondent’s counsel is that this appeal is a pre-election matter which is spent and statute barred. No doubt the urgency inherent in an election related matter does not ipso facto make the matter a pre-election matter within the purview of S. 285(14) of the 1999 Constitution (as altered).
The Appellant’s claims in the originating summons relate to the internal squabbles of the members of the 1st Respondent which squabbles are against some party functionaries in the performance of their duties in organising party congresses, election of party delegates, publication of unauthorized party brochure etc. There are no issues dealing with the election of any candidate who would aspire for any seat in any State House of Assembly or any seat in the National Assembly to make those claims come within the realm of S. 285 of the 1999 Constitution (as altered).
In respect of the substance of the appeal, I agree with my learned brother that the erudite reasons elaborately set out in the lead judgment to the effect that the High Court of the Federal Capital Territory (FCT) is limited in its jurisdiction to the disputes that arise within the territory of the Federal Capital Territory. The dispute in this appeal relates to complaints about the 1st Respondent’s conduct of the South East of Nigeria’s Zonal Congress of 6/3/2021 an area completely outside the territorial jurisdiction of the FCT.
For the further reasons in the lead judgment, this appeal has no merit and it is hereby dismissed. I abide by the order as to costs. Appeal dismissed.
ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Musa Dattijo Muhammad, JSC just delivered.
I am in agreement with the decision and the conclusion contained therein.
The extent of the territorial jurisdiction of the High Court of the FCT has been the subject of judicial pronouncement in numerous cases of this Court. Section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that the provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the States of the Federation.
Similarly, the jurisdiction of the High Court of the FCT conferred by Section 257 of the Constitution, much like the High Courts established for other states of the Federation does not extend beyond the territory of the Court, in this case, the Federal Capital Territory. The trial Court therefore lacked the jurisdiction to entertain the Appellant’s suit as the dispute therein arose in Anambra State. See MAILANTARKI v TONGO & ORS (2017) LPELR – 42467 (SC); DALHATU V. TURAKI & ORS (2003) LPELR – 917 (SC).
On the whole, I too find no merit in this appeal and same is equally dismissed. The judgment of the Court below is hereby affirmed. I abide by the consequential orders made, including that on costs.