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UFOMBA v. INEC & ORS (2017) LPELR-42079(SC)
PRACTICE AREA: ELECTION PETITION 
INTRODUCTION
In a recent judgment delivered on Friday, 7th April, 2017, Clara Bata Ogunbiyi, J.S.C. in the Leading Judgment described the matter at hand as “an intra-party affair.”- a concept that has been defined to mean “A dispute between members of the party inter se, or between a member on the one hand and the party on the other.”- Pp. 32-33, Paras. G-B
Her Lordship went further: “I have said times without number that, as rightly submitted by the respondents, the appellant’s case in this appeal is predicated on non-compliance with the order of a Court, party leadership and membership of a political party. The suit, in other words, was not predicated on non-compliance with the Electoral Act or the guidelines of a party. The suit in the circumstance cannot come under Section 87(9) of the Electoral Act. It is therefore not competent.”- Pp 37, paras D-E
In buttressing the point, Olabode Rhodes-Vivour, J.S.C. had this to say: “Reliefs 1, 2 and 3 are principal claims/reliefs, being issues on party leadership and membership. No Court has jurisdiction to consider them as they are not justiciable being issues that fall within the internal affairs of the party.” Pp 41, paras A-B
Amiru Sanusi, J.S.C., in his own contribution said “the law is trite that Courts’ jurisdiction is ousted in matters dealing with internal affairs or resolution of a political party regarding nomination or leadership of that political party as in this instant case.” Pp 47, paras A-B
SUMMARY OF THE CASE
Briefly, the facts of the case as can be glimpsed in the body of the judgment is that the applicant (now appellant), via his originating summons at the Federal High Court, Umuahia, Abia State on the 27th January, 2015 called on the trial court to declare that the Governorship Primaries held on the 8th of December, 2014 having been conducted by the Deputy National Chairman of the 2nd Defendant, while the National Chairman was being restrained by an order of Court, was in compliance with the 2nd Defendant’s Constitution and Section 87(1), (4)(b) of the Electoral Act (As amended) and as such, it is valid and that he, as opposed to the 3rd respondent, should have been accredited by the 1st respondent (INEC) as the Governorship flag bearer of the 2nd respondent All Progressive Grand Alliance (APGA). He therefore prayed the Court to mandate the 1st Defendant to forthwith recognize, publish and rectify its record accordingly to reflect his name as the 2nd Defendant’s valid candidate for the 2015 Governorship Election in Abia State having scored the highest number of lawful votes at the Primaries election.
He also asked for a declaration that the 2nd term of four (4) years in office of the 4th Defendant as the National Chairman of the 2nd Defendant expired on the 1st of December, 2014 and ceases to be the Chairman of the 2nd Defendant from that day.
Consequently, the fundamental issues to which applicant (appellant) is seeking determination, as contained in his originating summons, relates to non-compliance with the orders of Court; party leadership and membership of a political party as well as the personality or authority, who should have conducted the primary in question.
The Originating Summons was objected to via two notices of preliminary objection filed by the 2ndand 4th then 3rd Respondents disputing the jurisdiction of the trial Court in that the main claims of the appellant are not justiciable in that they encroach on the domestic jurisdiction of the Defendant (Respondent) and relate to political questions well outside the jurisdiction of the Honorable Court. They also predicated their objection on the fact that the action as constituted is premature in that the Plaintiff in his Originating Summons and supporting affidavit has failed to demonstrate that prior to this suit; he had sought or exhausted the 2nd Defendant’s internal dispute resolution mechanism.
The Appellant’s originating Summons was heard on 7th May, 2015 and the Notices of preliminary objection of the 2nd and 4th respondents as well as that of the 3rd respondent were also heard. The trial Court delivered its judgment on the 27th May, 2015 striking out the suit having upheld the Notices of preliminary objection to the effect that the court lacked jurisdiction to adjudicate on the matter. The court held that the applicant’s matter as instituted is not justiciable.
The applicant, now appellant, was aggrieved by the decision of the trial court of first instance, so he filed an appeal against the decision of the court.
The Appellant’s Appeal was heard on 16th June, 2016, and on 12th July, 2016, judgment was delivered by the Court of Appeal dismissing the appeal and affirming the decision of the trial Court.
In reaction to the judgment, the appellant has now further appealed to the Supreme Court.
ISSUE(S) FOR DETERMINATION
At the Supreme Court, the Court adopted a sole issue for determination viz:
Whether in the entire circumstances, did the Court of Appeal come to the right conclusion when it affirmed the decision of the trial Court that the claims of the appellant (the claimant) are not justiciable.
HELD
The Supreme Court affirmed the concurrent judgments of the lower Courts to the effect that the courts are bereft of any jurisdiction in the matter, same not being justiciable. The appeal was consequently struck out.
RATIOS
  • COURT – JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter
“the law is well settled that it is the claim of the claimant that determines whether a Court of law has jurisdiction or not. See the following teeming authorities in reference:- Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 SC at 549; Union Bank V. I.T.P. Ltd (2000) 12 NWLR (Pt. 680) 99 at 109; Okulate V. Awosanya (2000) 2 NWLR (Pt. 646) 530 or 555-556; Osoh V. Unity Bank  (2013) 9 NWLR (Pt. 1358) 1 at 28; Agbule V. W.R. & P. Co. Ltd (2013) 6 NWLR (Pt. 1350) 318 at 350: Onuorah V. Okeke (2005) 10 NWLR (Pt.932) 47 at 57: Akeem V. University of Ibadan (2003) 10 NWLR  (Pt. 829) 584 at 596; A.G. Kwara State V. Warah (1995) 7 NWLR (Pt. 405) 120 of 127 and UBA Plc V. BTL Ind. Ltd (2006) 19 NWLR (Pt. 10013) 61.”Per OGUNBIYI, J.S.C. (P. 11, Paras. B-F)
  • COURT – JURISDICTION: Importance of jurisdiction in the process of adjudication
“In University of llorin and Ors v Oluwadare (2009) All FWLR (Pt 452) 1175, 1204; B-D, the Court of Appeal per Nweze, JCA, as he then was] opined that: Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty…Exactly a year later, in its decision in Oloruntoba-Oju and Ors v Abdul-Raheem and Ors (2009) LPELR-2596 (SC) 22; B-E, this Apex Court adopted my above views wholesale,  although, without attributing its authorship to me. Be that as it may, I now take liberty to re-assert the above views of mine. I adopt them as part of my reasoning in this contribution.” Per NWEZE, J.S.C. (Pp. 43-44, Paras. A-A).
  • ELECTORAL MATTERS – POLITICAL PARTY PRIMARY: Whether a court has jurisdiction over the complaint of a contestant as it relates to the conduct of primaries of a political party
“. . . Central to the determination of this issue is Section 87(9) of the Electoral Act 2010 (as amended). It provides as follows:-
“Notwithstanding the provisions of the Act or rules of a Political Party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress.”
From the foregoing provision, it is now a settled principle of law clearly that, where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct, (of the primaries), the Courts have jurisdiction by virtue of Section 87(9) of the Electoral Act 2010 (as amended), to entertain the complaints, if the conduct of the primary was in accordance with the party’s Constitution and Guidelines. The reason for this is obvious wherein political parties are not allowed to act arbitrarily but must be seen to obey their Constitution. See Tarzoor v. Joraer (2016) 3 NWLR (Pt 1500) 463 at 52.”Per OGUNBIYI, J.S.C. (Pp. 27-28, Paras. E-D)
  • ELECTORAL MATTERS – POLITICAL PARTY: Whether Courts have jurisdiction to intervene in the internal affair of a political party
“By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership disputes in the 2nd respondent. This, clearly and as rightly submitted by the learned counsel for the 2nd and 4th respondents, is not an exception to Onuoha V. Okafor (1983) 2 SCNLR 244. Also in the locus classicus case of Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556, Fabiyi JSC, in his lead judgment said:-
”The Courts have no power to compel a political party to sponsor a candidate outside the thin and  land limiteds conferred under Section 87 of the Electoral Act, 2010 (as amended). The jurisdiction of the Court relates to whether complaints in respect of primary election for nomination of a candidate were conducted in line with the provisions of the Electoral Act, 2010 (as amended), the Constitution and the Party guidelines.”
The interpretation of Section 87 of the Electoral Act is not meant to operate at large, so as to open a flood gate for litigations by political party members, who are dissatisfied with the conduct of the primaries elections. The jurisdiction of the Courts, under this Section, is limited to examining, if the conduct of the primaries elections were strictly in accordance with the Party’s Constitution and Guidelines. See Hope Uzodinma V. Sen. O. Izunaso (2011) 17 NWLR (Pt. 1275) 28. Therefore, what grants jurisdiction is non-compliance with Electoral Guidelines of the Political party and not its Constitution. The cardinal principle of law in the construction or interpretation of a statute is well adopted in the case of Owners of MV Arabella V. Nig. Agric Ins. Corp. (2008) 4-5 SC (Pt. 11) 189 at 211.
In his contribution to Emenike V. PDP’S case supra, Rhodes-Vivour, JSC made it very clear that limited jurisdiction would be invoked if primaries were not conducted in accordance with “Party’s Constitution and Guidelines. As rightly submitted on behalf of the 2nd and 4th respondents, to consider whether election has been conducted in accordance with Party Constitution and Electoral Guidelines, the Courts cannot be invited to decide, who the leader of such a party is, as that would be beyond the jurisdiction of such Courts in the light of Onuoha V. Okafor (1983) 2 SCNLR 244.  Also, in the case of PDP V. Sylva supra this Court, restated clearly that the right to nominate or sponsor a candidate for an elective position is a domestic right of a political party. It follows therefore that the issues of leadership and membership are internal affairs of a political party. In other words, it is not open for a Court to inquire into, the membership/leadership of a political party.
In the case before us, from questions 1 and 2 as reflected on the face of the Originating Summons (at page 47 Vol. 1 of the record of Appeal), I did state earlier in this conducted judgment that the appellant was not questioning the conduct of primaries. He cannot therefore be operating within the ambit of Section 87(9) of the Electoral Act so as to clothe the Court with jurisdiction.
On the foregoing conclusion, the lower Court was very clear in its pronouncements at pages 710 and 711 of Volume 2 of the record of Appeal which were reproduced earlier in the course of this judgment. The finding by the lower Court, cannot in the circumstance be faulted. The matter at hand is “an intra-party affair.” The concept of the phrase was defined by this Court in PDP V. K.S.I.E.C. (2006) 3 NWLR (Pt. 968) 565 at 577 as- “A dispute between members of the party inter se, or between a member on the one hand and the party on the other.” Also in PDP V. Sylva (supra) at page 146 this Court held thus:-
“Consequently, the Court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections or to determine any dispute arising from the internal affairs of a political party. “Per OGUNBIYI, J.S.C. (Pp. 30-33, Paras. A-C)
  • ELECTORAL MATTERS – PRE-ELECTION MATTERS: Whether the claim of a party must be in conformity with the provisions of the Electoral Act for the jurisdiction of the Federal High Court to be invoked in a pre-election matter
“As rightly submitted by the learned counsel for the 2nd and 4th respondents, the binding facts of the foregoing cases, which also distinguishes them from this instant appeal, is that the main claims in the aforementioned cases, even though not directed at the Federal Government or its Agency, were justiciable, as they fell within the purview of Section 87(9) of the Electoral Act, 2010 (as amended).
It is pertinent to restate at this point that the appellant’s reliance on the case of Lokpobiri V. Ogola and the other related cases supra, is of no assistance to him. In the Lokpobiri’s case for instance, this Court re-affirmed the well known principle that, “in civil actions, the jurisdictions of a Court to hear and determine the plaintiff’s action, depends on the claims in the Writ of summons and his pleadings.” On the other hand, the jurisdiction of the Court to hear and determine an election or election related matter, is statutory.
Contrary to the submissions of the learned counsel to the appellant, the Court’s position is that “When the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act, 2010 (as amended).” Contrary also to the contention held by the learned counsel representing the appellant, the entire case of the appellant revolved on, who was the alter ego of the party between the Chairman, whose tenure was purported by the appellant to have expired and who, is said to have been restrained by an order of the Court. The controversy is not squarely on issues coming within the contemplation of Section 87(9). With reference made to the case of Lokpobiri V. Ogola (supra), Onnoghen, JSC (as he then was) at p.365 held and said:
“It is therefore my considered opinion when the Federal High Court’s pre-election jurisdiction is invoked, the parties claim(s) and relief(s) must be in conformity with the provisions of the Electoral Act (as amended).”
Furthermore, in the case of Anyanwu V. Ogunewe supra this Court, held that a complainant in such a case (that is under Section 87(9) must bring himself squarely within the confines of the provisions of Section 87(9) of the Electoral Act so as to say that:-
“He must be an aspirant who participated in the primary and his complaint must relate to noncompliance with the provisions of the Electoral Act or the guidelines of a political party.” (Emphasis is provided).
In the case under consideration, it is obvious that the appellant’s case was not premised on “noncompliance with the provisions of the Electoral Act or the guidelines of a polity party.” Rather, it is predicated on non-compliance with the orders of a Court and or leadership tussle. It is patently clear therefore, that the principal reliefs are not within the purview or contemplation of Section 87(9) of the Electoral Act; thus depriving the Federal High Court of jurisdiction to entertain the suit as couched by the appellant. In the case under consideration further, the principal reliefs sought and the basis which they are sought have nothing to do with Section 87(9) of the Electoral Act, 2010 (as amended). They also have nothing to do with Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, even though the 1st respondent is an agency of the Federal Government. It is obvious therefore that the Federal High Court lacks the jurisdiction to entertain the suit. The appellant’s counsel related copiously also to the case of Ugwu V. PDP supra. It was stated affirmatively in that case that, for such a suit under Section 87(9) to be competent, a plaintiff must be an aspirant, who participated in the primaries and his complaint must be on non-compliance with the Electoral Act or the guidelines of a party, not on non-compliance with the order of a Court.
Therefore, contrary to the submission by the learned counsel for the appellant, the lower Court was not shown to have acted in direct affront in any way on the decision of this Court in the case of Ugwu V. PDP (supra). The counsel, I hold must have misconceived the interpretation made by the lower Court. I have said times without number that, as rightly submitted by the respondents, the appellant’s case in this appeal is predicated on non-compliance with the order of a Court, party leadership and membership of a political party. The suit, in other words, was not predicated on non-compliance with the Electoral Act or the guidelines of a party. The suit in the circumstance cannot come under Section 87(9) of the Electoral Act. It is therefore not competent. The same principle held in Ugwu’s case was applied also in APGA V. Anyanwu (2014) 7 NWLR (Pt- 1407) 541. The law is well settled that where a Court does not have jurisdiction over the principal claims, it cannot adjudicate over the suit. See Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) p.517.”Per OGUNBIYI, J.S.C. (Pp. 33-38, Paras. F-A)
  • ELECTORAL MATTERS – POLITICAL PARTY: Whether Courts have jurisdiction to intervene in the internal affair of a political party
“I wish to concern more on the nature and propriety of some of the six reliefs on which the appellant approached the trial Court for its indulgence. In such reliefs, he gave the impression that he was the winner of the primary elections conducted by his party. However, closely looking at the said reliefs, there seems to be nowhere in which he challenged the conduct of the primaries in true sense. Rather, what he ventilated merely relates to nomination of members or leaders of the party. The issue now is, are claims against the nomination of members or leaders of the political party justifiable? My simple answer to that question is a capital “NO”. The law is trite that Courts jurisdiction is ousted in matters dealing with internal affairs or resolution of a political party regarding nomination or leadership of that political party as in this instant case. See Section 87 (9) of the Electoral Act 2010 (as amended). Those issues are the pith of the purport of Reliefs 1, 2 and 3 of the principle reliefs sought by the appellant herein. I said so, because the appellant did not approach the trial Court to examine the way and manner the party conducted its primary election or complaint on whether it was in strict compliance with the Constitution and Guidelines laid by the party. See Emeka vs Okadigbo (2012) 18 NWLR (Pt.1331) 58.
His complaint there, therefore, t relate to or was not confined within the purview or precinct of Section 87 (9) of the Electoral Act 2010 (as amended) as would clothe the trial Court with jurisdiction to enquire into and determine his grouse. See Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556; Onuoha vs Okafor (1983) 2 SCNLR 244.
There is no gainsaying and it is even settled law, that power or right to sponsor or nominate a candidate for an election is purely a domestic affair of the political party. This also presupposes that issue of leadership and/or membership of a party is an internal or domestic affair of a party. It is within the political party’s jurisdiction and is indeed “No Go area” for Courts, as they lack jurisdiction to delve into such affair or matters. The Court’s jurisdiction is ousted because such subject matter it non-justiciable. See PDP v Svlva (2012)13 NWLR (Pt.1316) 85.”Per SANUSI, J.S.C. (Pp. 46-48, Paras. D-B)
  • INTERPRETATION OF STATUTE – SECTION 87(9) OF THE ELECTORAL ACT, 2010: Purport of  Section 87 (9) of the Electoral Act, 2010 (as amended)
“As demonstrably shown in the said leading judgment, the appellant’s case was anchored on the noncompliance with the orders of Court; party leadership and membership of a political party: matters that, indubitably, orbit outside the compass of Section 87 (9) of the Electoral Act, 2010 (as amended).
In effect, at the trial Court, as the lower Court found the appellant failed to donate the factual situations that could clothe the Court with jurisdiction. I take liberty of this contribution to re-iterate the point, made in several decisions of this Court, that Section 87 (9) (supra) does not grant sundry interlopers the carte blanche lo query party primaries, Anyanwu v. Ogunewe (2014) 8 NWLR (Pt 1410) 437; Uzodinma v lzunaso [2011] 17 NWLR (Pt. 1275) 28 Emenike v PDP (2012) 12 NWLR (Pt 1315) 556; Emeka v Okadigbo (2012) 18 NWLR (Pt 1331) 55.  On the contrary, that section [Section 87 (9)] is intended to vouchsafe to actual applicants who participated in their party primaries the right to impugn the conduct of such primaries for noncompliance with the provisions of the Electoral Act and Guidelines of their parties, Emenike v PDP (supra); Emeka v Okadigbo (supra); Uzodinma v lzunaso (supra); Anyanwu v Ogunewe (supra). As such, as the lower Court affirmed, the trial Court, rightly, declined jurisdiction. It could not be otherwise for jurisdiction is a threshold issue in cases before any Court.”  Per NWEZE, J.S.C. (Pp. 41-42, Paras. E-F)
  • P R A C T I C E A N D P R O C E D U R E – A C A D E M I C O R H Y P O T H E T I C A L QUESTION(S)/ISSUES/SUIT/EXERCISE:  Attitude of Courts to academic/hypothetical issues or questions
“… However, and in view of the decision of this Court in Ugwu V. PDP. I have nevertheless determined the merit of the appeal. In that case, this Court per Aka’ahs, JSC had this to say at page 496 in a similar situation:-
“I agree with the learned counsel for the appellant that since the learned trial judge held that the action was non-justiciable and consequently declined jurisdiction which was endorsed by the lower Courts, an appeal to this Court to test the correctness of the two lower Courts’ decision cannot be said to be academic. The preliminary objection of the 1st respondent is overruled and struck out.” Per OGUNBIYI, J.S.C. (P. 39, Paras. C-F)
  • WORDS AND PHRASES – “JUSTICIABLE”: Meaning of the term “justiciable”
The word justiciable is destined at page 944 of the Black’s Law Dictionary Ninth Edition thus-“A case or dispute properly brought before a Court of justice: capable of being disposed of judicially.” Per OGUNBIYI, J.S.C. (P. 26, Paras. C-D)
OTHER JUDGMENTS TO LOOK OUT FOR
IGBOKWE v. C.O.P EDO STATE (2017) LPELR-42072
  • CONSTITUTIONAL LAW – RIGHT TO PERSONAL LIBERTY: Statutory provision regarding right to personal liberty.
Statutory provision regarding right to personal liberty “I will only add that S.35(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides for the personal liberty of the individual. By this section the individual cannot be deprived of his personal liberty except in accordance with the law. The Constitution itself set out in details the basic procedure and conditions for lawful deprivation. See S.35(1)a-f.” Per ONIYANGI, J.C.A. (P. 19, Paras. E-F)
  •   CRIMINAL LAW AND PROCEDURE – ARREST: Circumstances under which a person can be lawfully arrested and detained.
“It should be noted that the method of arrest is not spelt out in the Constitution. However, under the Criminal Procedure Act and the Criminal Procedure Code. (S.10(1)  CPA and S. 26 CPC) respectively, a  police officer can arrest any person without warrant where such person inter alia commits any offence in his  presence. A police officer can also arrest without warrant where he reasonably suspects a person to have committed an indictable offence (see 10(2) CPA) (the underline is mine) as in this case. That is to say that it may well be that an offence has not been in fact committed, a policemen who on a reasonable ground effect an a r r e s t i s n o t l i a b l e f o r f a l s e imprisonment. Hence by S.12 of CPC,  an arrest without a warrant is permissible.” Per ONIYANGI, J.C.A. (P. 20, Paras. B-F)
  • DAMAGES – AWARD OF DAMAGES: Award of damages for breach of fundamental right(s).
“… it is the law that damages in compensation legally and naturally follow every act of violation of a citizen’s right once the detention is adjudged wrongful and unlawful. See – S E C T I O N 3 5 ( 6 ) O F T H E 1 9 9 9 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (as amended). – OKONKWO VS OGBOGU (1996) 5 NWLR Part 499 Page 420.”Per BADA, J.C.A. (P. 16, Paras. A-B)
  • JUDGMENT AND ORDER – CONSEQUENTIAL ORDER: Whether courts have the power to grant a relief not specifically asked for as a consequential order.
“It is trite law that a Court is not entitled to grant a relief not claimed unless such is a consequential order. And a consequential order is not an order which is merely incidental to a decision but one necessarily flowing directly and naturally from it and inevitably consequent. It must be to give effect to the Judgment already given and not granting a fresh or unproved relief. It must be closely related to the substantive relief claimed. See the following cases:- – OKEOWO & ORS VS MIGILORE & ORS (1979) 11 SC Page 87; – ADEMOLA VS SODIPE (1992) NWLR Part 253 Page 251; – DINGYADI VS INEC (NO.1) (2010) 18 NWLR Part 1224 Page 1.”Per BADA, J.C.A. (Pp. 17-18, Paras. E-B)
HUEBNER v. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT CO. LTD (2017) LPELR-42078(SC)
  • COURT – JURISDICTION: Whether the court can exercise jurisdiction over persons who are not parties before it
“Finally, Kajuru Nigeria Ltd is not a party to this appeal and was not made a party to this case at the trial. The law is settled that a Court can only exercise its jurisdiction or power over parties before it and strictly in respect of the case between them upon issues raised and reliefs sought. It cannot do so concerning, and to the extent it may affect persons who are not parties before it and must resist the temptation to make pronouncement to that end. The Court must confine its decision to the parties and their claims. See Ojogbue v Nnubia (1972) 1 ALL NLR (Pt.2) 226; Ochonma v Unosi (1965) NMLR 321; Labide v Regd. Trustee Cherubim & Seraphim (2003) FWLR (Pt. 142) 89 at 105 Paragraphs G-H; Intercontractors (Nig) Ltd v UAC of (Nig) Ltd (1988) 2 NWLR (Pt. 76) 303; Green v Green (1987) NWLR (Pt 61) 481. I therefore agree with the learned counsel for the Respondent that the lower Court was right when it upheld the refusal of the trial Court to compel the Respondent to comply with the Appellant’s instructions concerning the transfer of the legal estate in the land to Kajuru Nigeria Limited.” Per GALINJE, J.S.C. (Pp. 16-17, Paras. B-A)
  • COURT – DUTY OF COURT: Duty of court to do justice according to law and not sentiments
“… The situation the Appellant found himself in is unfortunate, but sentiments command no place in judicial deliberations – see Kalu V. F.RN. & Ors (2016) LPELR-40108 (SC).”Per AUGIE, J.S.C. (P. 58, Paras. B-C)
  • EVIDENCE – ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can be allowed to discredit or contradict a documentary evidence; Exception thereto
“For a fact, oral evidence is not acceptable to vary or alter a documentary evidence except for certain circumstances or exceptions. In this regard a reference to Section 132 (1) of the Evidence Act, 2011 (as amended) is helpful and it provides thus:
“132 (1) when any judgment of any Court or any other judicial or official Proceedings, or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or Proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents cases in which secondary evidence is admissible under the provisions herein before contained, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence; provided that any of the following matters may be proved.
a. Fraud, intimidation, illegality, want of execution, the fact that it is wrongly dated, existence or want of failure, of consideration, mistake in fact or law, want of capacity in any contracting party or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract, or any other matter which if proved, would produce any effect upon the validity of any document, or of any part of it or which would entitle any person to any judgment, decree, or order relating thereto.
b. The existence of any separate oral agreement as to any matter on which a document is silent and which is not an assistant with its terms if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.
c. The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant, or disposition on property.
d. The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property.
e. Any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description, unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.”
Sub-section (3) of this Act further provides that:
“(3) Oral evidence of the existence of a legal relationship is not excluded by fact that it has been created by a document when the fact to be proved is the existence of the relationship itself and not the terms on which it was established or is carried on.” Per PETER-ODILI, J.S.C. (Pp. 26-28, Paras. A-B)
  • LAND LAW – LAND USE ACT, 1978: Whether the Land Use Act, 1978 limits its benefits to only Nigerians
“Having come to the conclusion that the disputed property was acquired by the Appellant, the question that agitates my mind is whether the Appellant was qualified and had the capacity to hold legal estate in land in Nigeria. The law is settled that equity does not operate in vacuum. In answer to this question, learned counsel for the Respondent submitted that the Appellant knew and had consistently maintained the fact that he as an alien cannot hold title to land by virtue of the relevant provisions of the Nigerian Law relating to landed property. Learned counsel further submitted that since the Appellant is barred from holding title to land under the Land Use Act 1978, he could not hold any legal interest over the disputed property which is capable of being entrusted to the Respondent. In aid, learned counsel cited the case of Chief S. O Ogunola & 6 Ors v Hoda Eiyekole & 9 Ors (1990) 4 NWLR (Pt. 146) 632 at 642 paragraphs B-D. In that case, my learned brother Olajide Olatawura (JSC) of blessed memory who delivered the lead judgment, said:-
“The learned trial Judge in interpreting Section 36(1) of the Land Use Act placed much reliance on the word ANY to include foreigners – Section 1 of the Act specifically limits its benefits to Nigerians. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy because that Section 36(1) provides for ANY PERSON: Aliens are not Nigerians. I reproduce Section 1 of the Act if only to re-emphasize that the Act was promulgated for the benefit of Nigerians:
“1. Subject to the provision of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in  Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provision of this Decree.”
In their concurring judgment, my lords Obaseki, Karibi Whyte and Wali JJSC agreed entirely with the view expressed by Olatawura JSC. Agbaje JSC dissented. At page 656, he held:-
“In my judgment a non-Nigerian who is a holder of land is entitled to the benefits of Section 36{1) of the Act provided the non-Nigerian in the words of the definition section of the Act is a person entitled to a right of occupancy or a person to whom a right of occupancy has been validly assigned.”
Learned counsel for the Appellant has urged this Court to adopt the dissenting view of Agbaje JSC as it is more in accord with the law that creates trust. In alternative learned counsel invited this Court to look further into this matter and if necessary depart from the relevant holding, especially the dictum of Olatawura JSC. I wish to state clearly that the views expressed by my lord Agbaje JSC was raised in a dissenting judgment. A dissenting judgment, however powerful, learned and articulate is not the judgment of the Court and therefore not binding. The judgment of the Court is the majority judgment which is binding. See Orugbo v Una (2002) 16 NWLR (Pt. 792) 175 at 208 Paragraphs B-C. The law under which the case of Ogunola & Ors v Eiyekole (supra) was decided, that is the Land Use Act 1978, has not been repealed or altered. It is still the extant law that regulates land administration in this country. The call therefore on this Court to depart from the said decision is without merit. I entirely associate myself with the decision of my learned brothers in Ogunola & Ors v Eiyekole (Supra) and hold that the Appellant being an alien had no legal capacity to hold interest in land in Kajuru Local Government Area of Kaduna State. This being so and by virtue of the Latin Legal Maxim, Nemo dat quod non habet, the Appellant cannot benefit from property which he was incapable of owning.” Per GALINJE, J.S.C. (Pp. 13-16, Paras. A-B)
  • TRUST – “TRUST”: Meaning and nature of trust
“Trust is defined at page 1513 of the Blacks Law Dictionary, 7th Edition as the right enforceable solely in equity to the beneficial enjoyment of property to which another person holds the legal title. Where a party claims certain property that is held in constructive trust for his own benefit, he has a duty to prove that the title document in possession of the trustee is valid and in proper custody. The moment he successfully contradicts and renders the title document in the name of the trustee invalid, his claim automatically fails, since the success of his claim depends largely on the validity of the documents of title in the name of the trustee.” Per GALINJE, J.S.C. (Pp. 9-10, Paras. E-B)
  • TRUST – CONSTRUCTIVE TRUST: What the doctrine of constructive trust entails
“A constructive or implied trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstance that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. See Beatty v Guggenheim Exploration Co. 122 N.E 378, Black’s Law Dictionary 7th Edition, Page 1513. In Kotoye v Saraki (1992) NWLR (Pt. 264) 156, (1992) 11/12 SCNJ 26, this Court held that constructive trust, as in this case, imposed by equity on the ground of conscience and is not based on the prior presumed intention of the parties. See Ughtevbe v Shonowo (supra); Ibekwe v Nwosu (2011) 9 NWLR (Pt. 1251) 1 at 5 Paragraphs A-C.
An implied trust founded upon the unexpressed intention of the settlor and same is raised and created by implication of law from the surrounding circumstances of the case. It does not require agreement between the settlor and trustee. See Adekeye v Akin Olugbade (1987) 3 NWLR (Pt. 60) 214 at 227; Koroye v Saraki (1994) 2 NWLR (Pt. 357) 414 at 443 Paragraph H. Constructive trust is neither granted nor accepted, but it is foisted upon the parties by the operation of law. “Per GALINJE, J.S.C. (Pp. 10-11, Paras. D-E)
  • TRUST – CONCEPT OF TRUST: Elements of trust
“Trust involves three elements, namely:-
1. A trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another.
2. A beneficiary to whom the trustee owes equitable duties to deal with the trust property for his benefit.
3 Trust property, which is held by the trustee for the beneficiary. See Black’s Law Dictionary, Page 1513.”Per GALINJE, J.S.C. (Pp. 11-12, Paras. E-A)
KENTE v. ISHAKU & ORS (2017) LPELR-42077(SC)
  • ACTION – ORIGINATING PROCESS(ES): Importance of validity of originating process in a proceeding
“The validity of originating processes in a proceeding, like the originating summons, writ of summons or notice of appeal, is the sine qua non for the competence of the proceeding that follows or that is initiated by such process. See MADUKOLU v. NKEMDILIM (1964) 3 NSCC 374 at 379 – 380.”Per EKO, J.S.C. (P. 27, Paras. A-B)
  • ACTION – ORIGINATING PROCESS(ES): Effect to failure to commence a suit or appeal with a valid originating process
“Consequently, failure to commence a suit or appeal with a valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions precedent for the exercise of the Court’s jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and determine the issues in the action or appeal. See KIDA v. OGUNMOLA (2006) 13 NWLR (pt.997);  BRAITHWAITE v. SKYE BANK PLC (2012) LPELR – 15532 SC.
It cannot be overemphasized that unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it is incompetent. See MADUKOLU v. NKEMDILIM (supra). The proceedings in such action or appeal remain a nullity ab initio, no matter how well the proceedings were conducted. See TIMITIMI v. AMABEBE 14 WACA 379. Courts do not exercise their given jurisdiction in futility. “Per EKO, J.S.C. (Pp. 27-28, Paras. C-A)
  • APPEAL – NOTICE(S) OF APPEAL: Effect of a defective/incompetent notice of appeal
“A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competently before it and when same is initiated by due process of the law. Failure of an appellant to relate his Notice and grounds of appeal to the actual decision he is dissatisfied with renders the Notice of Appeal incompetent and nugatory. Because it is the foundation or substratum of the appeal, the incompetence of the notice of appeal negates the entire appeal as well. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Atolagbe V. Awuni (1997) 9 NWLR (Pt 522) 536 and CBN v. Okojie (2004) 10 NWLR (Pt 882) 488; SPDC Nig Ltd V. Sam Royal Nig Ltd (2016) LPELR-40062 (SC). In FBN Plc V. T.S.A. Industries Ltd (2010) LPELR-1283 {SC}, a decision on which the lower Court relied, this Court restated the principle thus:-
“A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.” Per MUHAMMAD, J.S.C. (Pp. 14-15, Paras. A-B)
  • APPEAL – RIGHT OF APPEAL: Extent of the exercise of right of appeal
“The appellant has insisted that notwithstanding the incompetence of this notice of appeal the lower Court should have proceeded in the interest of justice to hear and determine the appeal. The Court cannot exercise appellate jurisdiction beyond what and how Section 240, 241 and 243 of the 1999 Constitution as amended cumulatively confer on it. Appellant’s right of appeal, as donated by the Constitution is not at large.
By Section 241 (1)(a) of the Constitution, it is only when he appeals against the specific decision of the trial Court he is aggrieved with that the lower Court’s jurisdiction to entertain the appeal avails him. The lower Court’s refusal to assume jurisdiction when it has none does not amount to undue and untoward inclination at doing technical justice. The Court’s primary function is to dispense justice according to law.” Per MUHAMMAD, J.S.C.  (Pp. 15-16, Paras. C-A)
  • PRACTICE AND PROCEDURE- N O N – COMPLIANCE WITH RULES OF COURT: Attitude of court to the issue of non-compliance with the rules of court
“The insistence on strict compliance of originating process with the Rules of Court, particularly of appellate Courts, is not an indulgence in technicality. As regards appeals, Courts demand stricter compliance with rules of Appeal Courts than with rules of trial Courts. See RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933: LOPES v. VALLIAPA (1968) 2 ALL E.R. 136; OJUGBELE v. LAMIDl (1999) LPELR – 6667 CA per Adekeye, JCA (as she then was).”Per EKO, J.S.C. (P. 28, Paras. B-D
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LawPavilion • April 21, 2017


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