MAILANTARKI  V TONGOO

MAILANTARKI  V TONGOO


The Supreme Court

Holden at Abuja

Friday, 02 June 2017


Suit Number; SC. 792/2015

CITATION NO:


BEFORE THEIR LORDSHIPS

WALTER SAMUEL NKANU ONNOGHEN. JSC

MUSA DATTIJO MUHAMMAD, JSC

KUDIRAT MOTONMORI OLATOKUNBO

EJEMBI EKO, JSC

SIDI DAUDA BAGE. JSC


Between

HON. KHAMISU AHMED MAILANTARKI         

(Appellant)

and

I. HON. YAYA BAYCHI TONGO                             

2. ALL PROGRESSIVE CONGRESS (APC)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(Respondents)


PRONOUNCEMENTS

A. COURT

  1. Stare Decisis– Duty of the court to adhere to the principle of stare decisis

“Agreed, no two cases have identical facts. Where, however, the facts of the decided case are substantially the same with the case at hand, the principle of stare decisis enjoins a court to follow the earlier judicial decisions when the same points arose again in litigation. It is also a rule of law that ensures certainty in the state of the law and its application.” Per Eko JSC

B. JURISDICTION

  1. Jurisdiction– On the competence of a court to entertain a given subject matter of dispute

“The law is now quite settled that the competence of a court to entertain a given subject matter of dispute is an essential element in determining its jurisdiction. This Court, in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR (pt.4) 587, lists indices of when a court is competent to exercise jurisdiction. One of them is when the subject matter of the case is within its jurisdiction and there is no feature in the case that prevents the court from exercising its jurisdiction.” Per Eko JSC

  1. Rules of court– Whether the rules of court confer jurisdiction on the court to entertain causes or matters

“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. My answer, therefore, to the submission of the Appellants Senior Counsel on this, is that the FCT High Court does not derive any jurisdiction from its Rules of practice and procedure to entertain any cause or matter, the dispute in respect of which arose in Gombe State or any other place outside the Federal Capital Territory, Abuja.” Per Eko JSC

  1. Territorial Jurisdiction– On the nature and extent of the territorial jurisdiction of a court

“It is my considered View that the jurisdiction vested in the 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. In RIVERS STATE GOVERNMENT & ANOR. v. KONSULT (SWEDISH GROUP) (supra) the poignant statement of the law, relevant and very material to our Federal structure, is that a court in one State of the Federation does not have jurisdiction to hear and determine a matter either exclusively within the jurisdiction of another State or which arose within the territory of another State. No court in any State, including the FCT High Court, has extra territorial jurisdiction.

This Court had earlier categorically re-stated the law on this in DALHATU v. TURAKI (supra), where it was stated, with all clarity, that because the 1999 Constitution, particularly Section 2(2) thereof, declares that Nigeria is a Federation consisting of States and the Federal Capital Territory, Abuja, each State of the Federation is independent of the other and the jurisdiction of each State is limited to matters arising in the State.

The Judges of the FCT High Court were more than ever before or more than the Judges of other State High Courts, admonished to heed the words of wisdom put across to them by Ogundare, JSC, at pages 339 340 in DALHATU v. TURAKI (supra), to wit –

l have taken pains to discuss (in) this judgment on territorial jurisdiction of a court in view of recent developments whereby litigants rather than suing in the proper courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.” Per Eko JSC

C. WORDS AND PHRASES

  1. Definition– Meaning of Forum Shopping

“Forum shopping denotes a rather reprehensible practice of choosing the most favourable territorial jurisdiction or court in which a matter, or cause may be entertained and adjudicated upon. A typical example of forum Shopping, according to Blacks Law Dictionary, is where the plaintiff institutes a suit in the jurisdiction with a reputation for awarding high damages, disdain for political gimmicks or filing several similar suits and keeping the one with the preferred Judge. See also IDEMUDIA v. lGBINEDION UNIVERSITY, OKADA & ORS. (2015) LPELR – 24514 (CA).” Per Eko JSC


  1. Definition– Meaning of Forum Shopping

“Forum shopping occurs when a party attempts to have his action tried in a particular Court or jurisdiction where he feels he will receive the most favourable decision or verdict.” Per Bage JSC


D. JURISDICTION

  1. On the jurisdiction of a court to hear and determine a matter which is within the exclusive jurisdiction of another state

“It is settled law that a court in one state does not have jurisdiction to hear and determine a matter which is within the exclusive jurisdiction of another state. See: Rivers State Govt. Vs Specialist Konsult (2005) 7 NWLR (Pt. 923) 145.” Per Kekere-Ekun JSC


LEAD JUDGMENT DELIVERED BY EKO  JSC 


The Appellant was the Plaintiff at the High Court of the Federal Capital Territory. He took out the suit on the Originating Summons praying for the following reliefs:

1. A DECLARATION that the 1st Defendant is bound to enforce the decision of its National Assembly Election Appeal Committee, Gombe State appointed by the National Working Committee of the 1st Defendant, which report disqualified the 1st Defendant herein for being ineligible to contest, therefore making the Plaintiff the bonafide candidate of the 1st Defendant having scored the highest lawful votes in the just concluded party primaries held on the 8th of December, 2014 with respect to GOMBE KWAMIFUNAKAYE Federal House of Representative elections in Gombe state.

2. A DECLARATION that by virtue of the combined provisions of Article 20 (iv) (b) and (c) of the Constitution of the All Progressives Congress (APC), vis-à-vis the 2014 guidelines for the nomination of Candidates for public office, as issued by the 1st Defendant, the 1st Defendant cannot proceed to submit the name of the 2nd Defendant to the Independent National Electoral Commission (INEC), when the Plaintiff scored the highest lawful votes in respect of the primary election conducted on 7th /8th December, 2014 with respect to GOMBE-KWAMI- FUNAKAYE Federal House of Representative elections in Gombe state?

3. A DECLARATION that any submission of the name of the 2nd Defendant or any other person to the Independent National Electoral Commission (INEC) (3rd Defendant), when the 2nd Defendant was disqualified for being ineligible to contest the primaries election and when the Plaintiff scored the highest lawful votes in respect of the primary election conducted on 7th /8th December, 2014 with respect to GOMBE-KWAMI-FUNAKAYE Federal House of Representative elections in Gombe state is invalid, null and void and of no effect.

4. A DECLARATION that in the view of the provisions SCHEDULE ii(1) (i) and (ii) of the All Progressive Congress Constitution 2014 and Article 2(minimum requirement) and Article 3 the 2014 Guidelines for the nomination of Candidates for Public Office, as issued by the 1st Defendant, the 1st Defendant cannot proceed to submit the name of the 2nd Defendant to the Independent National Electoral Commission (INEC), when in fact the 2nd Defendant was not a member of the 1st Defendant and the Plaintiff scored the highest lawful votes in respect of the primary election conducted on 7th December, 2014 with respect to GOMBE-KWAMI- FUNAKAYE. Federal House of Representative elections in Gombe state.

5. AN ORDER compelling the 1st Defendant to be bound and enforce the decision of its National Assembly Election Appeal Committee, Gombe State, appointed by the National Working Committee of the 1st Defendant, which report disqualified the Defendant herein for being ineligible to contest, therefore making the Plaintifff the bonafide candidate Of the 1st Defendant having scored the highest lawful votes in the just concluded party primaries with respect to GOMBE-KWAMI-FUNAKAYE Federal House of Representative elections in Gombe State.

6. AN ORDER that by virtue of the combined provisions of Article 20(iv) (b) and (c) of the Constitution of the All Progressives Congress (APC), vis-a-vis the 2014 Guidelines for the Nomination of candidates for Public Office, as issued by the 1st Defendant, the 1st Defendant cannot proceed to submit the name of the 2nd Defendant to the Independent National Electoral Commission (INEC), when the Plaintiff scored the highest lawful votes in respect of the primary election conducted on 7th/8th December, 2014 with respect to GOMBE-KWAMI-FUNAKAYE Federal House of Representative elections in Gombe State?

7. AN ORDER that any submission of the name of the 2nd Defendant to the independent National Electoral Commission (INEC) (3rd Defendant), when the Plaintiff scored the highest lawful votes in respect of the primary election conducted on 8th December, 2014 with respect to GOMBE-KWAMI-FUNAKAYE Federal House of Representative elections in Gombe state is invalid, null, void and of no effect.

8. AN ORDER compelling the 1st Defendant to submit the name of the Plaintiff to the 3rd Defendant as its bona?de candidate to contest for the Federal House of Representatives with respect to Gombe-Kwami-Funakaye Federal Constituency, having scored the highest lawful votes in the just concluded party primaries with respect to GOMBE- KWAMI-FUNAKAYE Federal House of Representative elections in Gombe state.

9. AN ORDER mandating the 3rd Defendant to accept the name of the Plaintiff as the bonafide candidate of the 1st Defendant to contest for the Federal House of Representatives with respect to Gombe-Kwami-Funakaye Federal Constituency, having scored the highest lawful votes in the just concluded party primaries with respect to GOMBE-KWAMI-FUNAKAYE Federal House of Representative.

10. AN ORDER directing the 3rd Defendant to take all steps/actions including listing the name of the Plaintiff as the candidate of the 1st Defendant for the Federal House of Representatives, GOMBE-KWAMI-FUNAKAYE Federal Constituency in the forth coming general elections.

11. AND for such order(s) as the Honourable Court may deem fit to make in the circumstance.

The Appellant contested with the 1st Respondent in the primary election for the nomination of the candidate to be sponsored by the 2nd Respondent herein, the All Progressives Congress (APC), to contest for the House of Representatives seat. The APC primary election for the election of the APC candidate for the Gombe/Kwami/Funakaye South Federal Constituency of Gombe State was held on 8th December, 2014 at Malam Sidi, the constituency headquarters. The primary election was observed by the Independent National Electoral Commission (INEC), herein the 3rd Respondent, as required by Section 87 of the Electoral Act, 2010, as amended.

The Appellant lost the primary election to the 1st Respondent. The name of the 1st Respondent was submitted to the APC for sponsorship as its candidate in the coming general election. The APC in turn forwarded the name of the 1st Respondent, as the person duly elected at the party’s primary election, to INEC as its candidate for Gombe/Kwami/Funakaye Federal Constituency. He was accordingly placed on the ballot by INEC as the APC candidate for the constituency.

The parties are ad idem that the National Assembly primary election for the election of the APC candidate for the Gombe/Kwami/Funakaye seat in the House of Representatives was held on 8th December, 2014, in Malam Sidi, the constituency headquarters.

Dissatisfied with the result of the primary election, the Appellant filed a petition to the National Assembly Election Appeal Committee (hereinafter called the Appeal Committee) of the APC. The Appeal Committee was set up by the National Working Committee (NWC) of the APC to, among other things, hear appeals arising from the conduct of All Progressives Congress National Assembly Primaries in Gombe State (on) 7th and 8th December, 2014, and to submit report and recommendation of the appeals to the National Headquarters of the party by Monday 15th December, 2014. The main ground of the Appellants petition to the Appeals Committee was that the 1st Respondent, as at the date of the Primary election, was still a card carrying member of the PDP and that he had not rescinded his membership of PDP. Appellant maintained that the 1st Respondent was not a genuine member of the APC and that he still retained his seat in the Gombe State House of Assembly on the platform of PDP. There is no doubt that the Appellant, the 1st Respondent, and one other contested in the APC primary election to be nominated as the APC candidate.

The Appeal Committee found that the 1st Respondent was still a PDP member and it doubted his eligibility to contest the election under APC. lt consequently recommended that the party should withdraw the ticket from the 1st Respondent. The Appeal Committee further recommended that for a genuine reconciliation the Appellant should be allowed to re-contest his seat for the aforementioned reasons. These recommendations were made to the NWC of APC, which from paragraph 16(d) of the APC 2014 Guidelines for the Nomination of Candidates for Public Office acts for the National Executive Committee (NEC) of the APC, and its decision is final as the arbiter for all further appeals arising from all primary elections, including the instant.

The NWC seems to be the final domestic court or tribunal in the APC organisation. This 2014 Guidelines for the Nomination of Candidates is Exhibit E in the Originating Summons.

The 1st Respondent, as the 2nd Defendant, entered Conditional Appearance to the suit of the Appellant. He filed Notice of Preliminary Objection,as well as his counter-affidavit, wherein he joined issues on the merits with the Appellant. He averred in the counter-affidavit that he was a bonafide member of the APC, that he had relinquished his membership of the PDP and that he contested and won the APC primary election inGombe/Kwami/Funakaye Federal Constituency after satisfying all prerequisites qualifying him to contest, particularly under Exhibit E. He further averred in the counter-affidavit that APC conducted all its elections freely and democratically after a thorough screening exercise of its contestants leading to participation in the election in this case. The 1st Respondent, in the counter-affidavit, queries the competence of the Appeal Committee that purportedly made recommendations in favour of the Appellant. He avers that while by Exhibit E, particularly page 15 thereof, the Appeal Committee is a Five Man Panel, the Panel that purportedly made recommendations in favour of the Appellant was a three man Panel.

The APC, notwithstanding the findings and recommendations of the Appeal Committee, disputed by the 1st Respondent, forwarded the name of the 1st Respondent to the Independent National Electoral Commission (INEC), the 3rd Respondent herein, as its candidate for Gombe/Kwami/Funakaye Federal Constituency. INEC, in consequence, placed the 1st Respondent on the ballot for the general election. The 1st Respondent won the election in the end. The Appellant took out this suit after the APC had submitted the name of the 1st Respondent to INEC as its candidate. I had earlier reproduced the reliefs the Appellant sought of the High Court of the Federal Capital Territory, Abuja. The Originating Summons for service on the 1st Respondent in Gombe was in fact served on him in Gombe State.

On 11th March, 2015, the 1st Respondent, as the 2nd Defendant on the Originating Summons filed his Notice of Preliminary Objection to the suit. He prayed the trial court

1. To set aside the issuance and service of the Originating Summons on him for being invalid and grossly incompetent; and

2. An Order striking out of the Appellant (as the Plaintiff) for want of jurisdiction.

The grounds for the objection are as follows

A. The condition precedent for issuance and service of the originating summons on 2nd Defendant 1St Respondent herein was not satisfied as mandatorily required by the enabling statute;

B. The Reliefs sought by the Plaintiff the Appellant herein as encapsulated in the originating process relate to internal party affairs and/or also party grounds for election outside the jurisdiction of this Court.

C. The Federal Capital Territory High Court lacks the jurisdiction to entertain claims for declaratory and injunctive reliefs in this case where the Federal Government or any of its agencies 3rd Defendant is a party.

FURTHER(that) the 2nd Defendant 1st Respondent herein shall, among others, place reliance on the processes listed hereunder in the hearing of this application.

1 The Originating Summons and other accompanying processes served on the 2nd Defendant.

2 The enrolled ex parte order of this honourable court dated 25th February, 2015.

3 Plaintiffs letters Exhibit H.

The preliminary objection was heard on 26th March, 2015 together with arguments on the originating summons. The Ruling thereafter reserved was on 1st April, 2015, delivered as the Judgment of the trial court. The trial court dismissed the preliminary objections. On the substance of the originating summons, the trial court (Coram: Valentine B. Ashi, J) entered judgment and granted the reliefs claimed in favour of the plaintiff, Appellant herein.

The 1st Respondent, aggrieved thereby, lodged his appeal against the decision of the FCT High Court to the Court of Appeal (the lower court). The appeal was heard. On the issue, whether a court in one State has jurisdiction to hear and determine a matter that is within the exclusive jurisdiction of the court in another State, the Court of Appeal, on the authority of DALHATU v. TURAKI (2003) 15 NWLR (pt.843) 310; RIVERS STATE GOVERNMENT OF NIGERIA v. SPECIAL KONSULT (SWEDISH GROUP) (2005) 7 NWLR (pt.923) 145; (2005) 2 SC. (pt.1) 121 found that the FCT High Court had no jurisdiction to hear and determine the suit of the Appellant, the cause of action of which accrued to him in Gombe State outside the Federal Capital Territory. The suit was accordingly struck out. The rationale for this decision is rooted in our peculiar federalism. Section 299 of the 1999 Constitution, be it noted, regards the FCT, Abuja as if it were one of the States of the Federation. Accordingly, for all intents and purposes FCT High Court, under the Constitution, is no more than a State High Court. The Constitution has never intended it to be a High Court at large with Jurisdiction over matters outside its territory.

The lower court, even on the substance of the originating summons, on the authority of ONUOHA v. OKAFOR (1983) 2 SCNLR 244, DALHATU v. TURAKI (supra); APGA v. ANYANWU (2014) 7 NWLR (pt.1047) 541; ANYANWU v. OGUNEWE (2014) 8 NWLR (pt.1410) 437 at 470, expressed the opinion that the law is established that the courts have no jurisdiction to adjudicate over the internal affair of a political party, including the sponsorship of a candidate for election. This further appeal is against this decision of the lower court delivered on 18th September, 2015.

This appeal was argued on 8th March, 2017 on briefs of argument filed and exchanged by the Appellant, and the 1st and 3rd Respondents. The Appellant filed Appellants Brief on 3rd May, 2016.

He filed Reply Briefs to 1st and 3rd Respondents Briefs, respectively on 23rd December, 2016 and 27th February, 2017. Both Reply Briefs were deemed filed and served on 8th March, 2017.

The 1st Respondent had adopted the so-called sole issue for determination formulated by the Appellant. The issue, as formulated from grounds 2,3,4,5 and 6, is:-

whether the lower court was not wrong when it held, not only that the trial High Court of the Federal Capital Territory had not territorial jurisdiction to entertain the Appellants claim in the originating summons, but also that, on the judicial pronouncements by this Honourable Court in the cases of DALHATU v. TURAKI (2003) 15 NWLR (pt. 843) 310; APGA v. ANYANWU (2014) 7 NWLR (pt. 1410) 541 and ANYANWU v. OGUNEWE (2014) 8 NWLR (pt. 1410) 437, the claim of the Appellant as constituted in the originating summons, relate to the internal affairs of a political party (the 2nd Respondent APC) that justiceable and consequently, the trial court lacked the competence to entertain the originating summons and/or make binding declaratory and injunctive reliefs notwithstanding the clear and express provisions of Section 87(a) of the Electoral Act, 2010 (as amended) which empowered the trial High Court to make/grant appropriate reliefs to redress any breach of the constitution or guidelines of a political party in the selection or nomination of candidates to contest for elections?

This sole issue, not only does it appear clumsy, it is double barrelled. It could have effectively been broken down into two. That is –

1. whether the Court of Appeal was correct when it held that the trial court lacked territorial jurisdiction to hear and determine the suit; and

2. whether, in view of the pronouncements of this Court in DALHATU v. TURAKI (supra); APGA v. ANYANWU (supra) and ANYANWU v. OGUNEWE (supra) the claims/reliefs of the Appellant, as the plaintiff, are justiceable

The cause of action, pleaded in the originating summons, was the primary election of the APC conducted on 8th December, 2014 in Gombe/Kwami/Funakaye Federal Constituency at the constituency headquarter, Malam Sidi, in Gombe State. The protests and appeal emanating from the said primary election are merely incidental to or matters arising from the said primary election.

The Appeal Committee of the APC heard the appeal on 13th December, 2014 and wrote its report on 15th December, 2014. All these took place in Gombe, Gombe State. No aspect of the primary election and the appeal therefrom took place in the Federal Capital Territory, except that the NWC or NEC of APC submitted the name of the 1st Respondent to INEC whose headquarters is in the FCT, Abuja.

For the Appellant it is submitted that the suit of the Appellant, filed at the FCT High Court, touched on the primaries held by the APC on the 8th December, 2014; that the suit was filed to enforce the decision/finding already taken by the National Assembly Election Appeal Committee of the APC and which decision had been duly forwarded to the headquarters of the APC for implementation. The implementation of the findings of the Appeal Committee entails forwarding of the name of the winner of the primary election conducted on 8th December, 2014 to INEC at its headquarters in the FCT. Exhibit I, the senior counsel for the Appellant submits, is the report of the Appeal Committee which must be submitted and which was, in fact, submitted to APC at its headquarter in FCT, Abuja, for implementation. Senior Counsel further submits that the suit was filed to enforce the decision of the Appeal Committee which was to be implemented in the FCT, Abuja, hence the decision to file the suit at the FCT High Court. The learned senior counsel submits further that though the facts leading to the report of the Appeal Committee relate to the primary election held in Gombe State, the cause of action or the act over which the Appellant is aggrieved, took place in Abuja. And that by virtue of Order 9 Rule 4(1) and Order 22 Rule 5 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 read with Section 257(1) of the 1999 Constitution, as amended, Section 9 of the High Court of the Federal Capital Territory Act and Section 87 (9) Electoral Act, 2010 as amended, the High Court of the FCT has jurisdiction to entertain the Appellants suit.

For the 1st Respondent it is submitted that one aspect of the primary election, including the screening of the aspirants, the voting, the purported sitting of the Appeal Committee took place in Gombe State outside the FCT; that there is no evidence that the report of the Appeal Committee had been submitted to any organ of the APC in Abuja; and that in the circumstance the High Court of the FCT has no jurisdiction.

This case is almost on all tours with DALHATU v. TURAKI (supra). Accordingly, it is one in which one has to invoke the principle of stare decisis, which means to abide by or adhere to decided cases. It is a policy of courts to stand by established precedent for the certainty of the law.

Agreed, no two cases have identical facts. Where, however, the facts of the decided case are substantially the same with the case at hand, the principle of stare decisis enjoins a court to follow the earlier judicial decisions when the same points arose again in litigation. It is also a rule of law that ensures certainty in the state of the law and its application.

Mr. Maikyau, SAN, of Counsel to the Appellant has submitted that DALHATU v. TURAKI (supra) relied upon by the lower court to hold that, the Appellants cause of action did not arise within the Federal Capital Territory such as to clothe the FCT High Court with jurisdiction over it, is not apposite. The learned senior counsel, therefore, urges that DALHATU v. TURAKI (supra) should not be invoked and applied in this case.

Let me quickly deal with the argument of the learned Senior Counsel to the effect that, by dint of Order 9 Rule 4(1) and Order 22 Rule 5 of the FCT High Court (Civil Procedure) Rules, the FCT High Court can exercise jurisdiction over the cause of action that arose in Gombe State. 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. My answer, therefore, to the submission of the Appellants Senior Counsel on this, is that the FCT High Court does not derive any jurisdiction from its Rules of practice and procedure to entertain any cause or matter, the dispute in respect of which arose in Gombe State or any other place outside the Federal Capital Territory, Abuja. It is my considered View that the jurisdiction vested in the 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. In RIVERS STATE GOVERNMENT & ANOR. v. KONSULT (SWEDISH GROUP) (supra) the poignant statement of the law, relevant and very material to our Federal structure, is that a court in one State of the Federation does not have jurisdiction to hear and determine a matter either exclusively within the jurisdiction of another State or which arose within the territory of another State.

No court in any State, including the FCT High Court, has extra territorial jurisdiction.

This Court had earlier categorically re-stated the law on this in DALHATU v. TURAKI (supra), where it was stated, with all clarity, that because the 1999 Constitution, particularly Section 2(2) thereof, declares that Nigeria is a Federation consisting of States and the Federal Capital Territory, Abuja, each State of the Federation is independent of the other and the jurisdiction of each State is limited to matters arising in the State.

The Judges of the FCT High Court were more than ever before or more than the Judges of other State High Courts, admonished to heed the words of wisdom put across to them by Ogundare, JSC, at pages 339 340 in DALHATU v. TURAKI (supra), to wit –

l have taken pains to discuss (in) this judgment on territorial jurisdiction of a court in view of recent developments whereby litigants rather than suing in the proper courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.

The facts, constituting the cause of action in this appeal, are not different from the facts constituting the cause of action in DALHATU v. TURAKI (supra).

The two sets of facts are substantially the same or similar. The cause of action in this case arose in Gombe State. In DALHATU v. TURAKI (supra) the cause of arose in Jigawa State. In the two cases, the disputes were over the primary elections to elect the candidates of political parties. In the instant appeal, like in DALHATU v. TURAKI (supra), the Appellant came all the way from the State, where the dispute arose, to the FCT High Court to sue claiming inter alia that he was the rightful candidate, or ought to be the candidate of the political party he is a member of.

The lower court has, rightly in my view, held, relying on DALHATU v. TURAKI (supra), that the jurisdiction of the High Court of the Federal Capital Territory, Abuja, which is regarded as a State High Court by virtue of Section 299 (a) of the 1999 Constitution, as amended, does not extend to matters that arise outside the Federal Capital Territory, Abuja. I also agree with their Lordships of the lower court that each State of the Federation is independent of the Federal Capital Territory, Abuja and vice versa and that the judicial powers for that State. Gombe State and the Federal Capital Territory, Abuja are distinct and independent of each other. It follows, therefore, that this matter which arose in Gombe State and has to do with the parties in Gombe State should have been commenced in the High Court of Gombe State, and not in the FCT High Court. The FCT High Court has, in the circumstance, acted ultra vires in assuming jurisdiction over a cause of action that arose in Gombe State and outside its jurisdictional territory. The proceedings in the Suit No. FCT/CVI934/2015before the FCT High Court, being incompetent, deserved to be and were correctly struck out by the lower court. There is no substance in this appeal on this issue.

The law is now quite settled that the competence of a court to entertain a given subject matter of dispute is an essential element in determining its jurisdiction. This Court, in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR (pt.4) 587, lists indices of when a court is competent to exercise jurisdiction. One of them is when the subject matter of the case is within its jurisdiction and there is no feature in the case that prevents the court from exercising its jurisdiction. In the instant case, the FCT High Court does not possess extra territorial jurisdiction that would make it assume jurisdiction over matters or causes arising far beyond its territory, or which arose in the territory of another court of co-ordinate jurisdiction.

The decision to file this suit in the FCT High Court far away from Gombe State where the cause of arose cannot be anything but a sheer decision to abuse the judicial process. It was a decision to actuate forum Shopping. It is a specie of abuse of judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territorial jurisdiction or court in which a matter, or cause may be entertained and adjudicated upon. A typical example of forum Shopping, according to Blacks Law Dictionary, is where the plaintiff institutes a suit in the jurisdiction with a reputation for awarding high damages, disdain for political gimmicks or filing several similar suits and keeping the one with the preferred Judge. See also IDEMUDIA v. lGBINEDION UNIVERSITY, OKADA & ORS. (2015) LPELR – 24514 (CA). The instant Appellant, as the plaintiff, had artfully avoided the High Court of Gombe State, in preference to the FCT High Court, because the former, as it appears may be a forum inconvenience. I say no more. The dictum of Ogundare, JSC, which I had earlier reproduced, should be sufficient to put their Lordships of the FCT High Court on the watch out or guard so that their courts will not be turned into axis of forum shopping.

This issue resolved against the Appellant is enough to dispose of this appeal. Having struck out the suit at the trial (High Court, for being incompetent, any further deliberation of the matters arising from the incompetent proceedings will only be for a mere academic pursuit. It will achieve no further utilitarian purpose to pursue the merits of the incompetent suit.

This appeal lacking in substance is hereby dismissed. The decision of the Court of Appeal in appeal No. CA/A/240/2015 delivered on 18th September, 2015 whereby the decision of the FCT High Court in Suit No. FCT/CV/934/2015 was set aside for being incompetent is hereby affirmed.

Costs at N200,000.00 shall be paid to each Respondent in this appeal.


 BAGE. JSC:

I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I will only add a few words of my own.

Forum shopping occurs when a party attempts to have his action tried in a particular Court or jurisdiction where he feels he will receive the most favourable decision or verdict.

The Appellant having instituted his action at the High Court of Federal Capital Territory Abuja, a Court which was not in the jurisdiction where the cause of action arose, is said to have shopped the forum. This without doubt amounted to abuse of judicial process.

For the more detailed reasoning in the lead Judgment I find no merit in this appeal.

Appeal dismissed.


ONNOGHEN JSC:

I have had the benefit of reading in draft the lead judgment of my learned brother, EKO, JSC just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

The facts relevant for the determination of the appeal have been stated in detail in the lead judgment thereby making it unnecessary for me to repeat them herein except as may be needed to emphasis the ‘point being made. However, the relevant facts are not in dispute, such as:

(a) That the action giving rise to this appeal was instituted by appellant as plaintiff in the High Court of the Federal Capital Territory, Abuja.

(b) The cause of action relates to the conduct of the primary election of the 2nd respondent, All Progressive Congress, for the nomination of its candidate for the GOMBE-KWAMI-FUNAKAYE Federal Constituency election of 2015.

(c) The cause of action therefore arose in GOMBE STATE.

The primary issue in this appeal, therefore, is whether the High Court of the Federal Capital Territory, Abuja, has the requisite territorial jurisdiction over a cause of action that arose and was completed in Gombe State. Though the trial court resolved the issue in favour of appellant, the lower court held otherwise and consequently struck out the suit. The question is: which of the lower courts is correct in its decision?

The answer to that question has long been settled by this court in the following cases: Dalhatu vs Turaki (2003) 15 NWLR (pt. 843) 310; Rivers State Government of Nigeria vs Special Konsult (Swedish Group) (2005) 7 NWLR (pt. 145); (2005) 28C (pt.1) 121. In Dalhatu vs Turaki (supra) at pages 339-340. OGUNDARE, JSC stated the position on the matter, inter alia, thus:-

“I have taken pains to discuss this judgment on territorial jurisdiction of a court in View of recent developments whereby litigants rather than suing in the proper courts come to the High Court of the Federal Capital Territory, Abuja. I think their Lordships of the High Court of the Federal Capital Territory ought to be circumspect before deciding whether or not it is wise and correct to exercise jurisdiction in matters outside the territory of the Federal Capital Territory. Their court, unlike the Federal High Court, has jurisdiction only in matters arising out of the Federal Capital Territory, Abuja.

It is for the above reasons and the more detailed ones contained in the said lead judgment that I too agree that the appeal is grossly without merit and liable to be dismissed. l therefore order accordingly and abide by the consequential orders made therein including the order as to costs.

The judgment of the lower court is hereby affirmed.

Appeal dismissed.


 MUHAMMAD, JSC:

Having read in draft the lead judgment of my learned brother EJEMBI EKO JSC just delivered, I adopt his lordships reasoning and conclusion to dismiss the unmeritorious appeal.

I abide by the consequential orders contained in the lead judgment including the order on costs.


KEKERE-EKUN; JSC:

I have read in draft the judgment of my learned brother, EJEMBI EKO, JSC just delivered. The reasoning and conclusion reached therein are in accord with mine.

The suit instituted by the appellant before the High Court of the Federal Capital Territory (FCT) Abuja arose from the appellant’s complaint against the emergence of the 1st respondent as the 2nd respondents (All Progressives Congress) flag bearer representing Gombe/Kwami/Funakaye Federal Constituency in the Gombe State House of Assembly in the primary election conducted on 8th December 2014. The 1st respondent eventually won the seat at the General Election.

The appellants contention was that at the time the primaries were held, the 1st respondent was not a member of the APC.

He petitioned the 2nd Respondents National Assemblies Primaries Appeal Committee for Gombe State, which recommended in its report that the ticket of the party be withdrawn from the 1st respondent and that the appellant be allowed to re-contest his seat. The Originating Summons filed at the trial court was to compel the 2nd respondent to comply with the decision of the Appeal Committee.

The crucial issue for determination in this appeal is whether the High Court of the FCT lacked territorial jurisdiction to entertain the appellants Claim as held by the court below.

Pursuant to Section 87(9) of the Electoral Act 2010, as amended, an aspirant who complains that any of the provisions of the Act and the guidelines of a political party have not been complied with in the selection of 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 or FCT for redress.

The provisions of the section are clear and unambiguous.

The question is, can an aggrieved aspirant institute his action before any of the courts referred to irrespective of the territorial jurisdiction of such court? The jurisdiction of a court to entertain a cause or matter is prescribed by the Constitution of the Federal Republic of Nigeria 1999 or by Statute. There is both subject matter jurisdiction and territorial jurisdiction.

Section 257(1) of the 1999 Constitution provides for the subject matter jurisdiction of the High Court of the FCT. The jurisdiction conferred by Section (87)(9) of the Electoral Act 2010, as amended is in addition to the jurisdiction conferred by the Constitution. Section 255(1) Of the 1999 Constitution provides for the establishment of the High of the Federal Capital Territory, Abuja just as Section 270(1) provides for the establishment of a High court for each state of the Federation.

It is settled law that a court in one state does not have jurisdiction to hear and determine a matter which is within the exclusive jurisdiction of another state. See: Rivers State Govt. Vs Specialist Konsult (2005) 7 NWLR (Pt. 923) 145. There cannot be any doubt that the territorial jurisdiction of the High Court of the FCT is restricted and confined to causes and matters that arise within the Federal Capital Territory.

In the instant case, the cause of action, which is the primary election of the 2nd respondent, took place in Gombe State. The appeal committee also sat in Gombe State. There is therefore no justification for the institution of the suit before the High Court of the FCT in Abuja. The filing of the suit before that court is a Clear example of forum shopping in the hope of securing a favourable outcome. This practice has been seriously deprecated in numerous decisions of this court. The practice does not augur well for the administration of justice. It is also unethical practice on the part of the legal practitioner who filed the suit.

I observe that the decision of this court in Jev Vs Ivortom 2014 14 NWLR (Pt. 1428) 575 611-612 was mischievously misconstrued by learned counsel for the appellant. What was decided in that case was that where there is a division of the Federal High Court in a state as well as a State High Court, an aggrieved aspirant can institute his action in either court. This was in recognition of the fact that by conferring jurisdiction on the of the lawmaker was to give an aspirant the flexibility of ventilating his grievance in any of the courts listed therein depending on which location is most convenient to the parties.

This cannot be taken to mean that a suit may be filed in any of the named courts anywhere in the Federation in blatant disregard of the particular courts territorial jurisdiction. That would be an absurd interpretation of the law and would no doubt lead to a miscarriage of justice.

For these and the more detailed reasons contained in the lead judgment, I find no merit in this appeal. It is accordingly dismissed.

I abide by the order on costs as stated in the lead judgment.

Appeal dismissed.


Y. C. Maikyau (SAN) with T. R. Agbanyi, Nwabueze Obasi-Obi, T.A. Rapu (Miss);

Mohammed Adelodun, P. A. Joseph, Abdulrahman Belgore, H. A. Matunji (Miss), C.P.

Nwozor (Miss), A.C. Ekwuoba, Nuratu Umar (Miss) and Sadiq Mohammed, for the

Appellant.

Hassan Liman (SAN) with Muhammad Biu Usman, Aisah I. Abbas (Mrs), Y. D. Dangana,

Fatima Bukar (Miss), Emeeyenelme Henry (Mrs), Maimuna Abubakar Ahmed (Mrs),

Sadiq Ibrahim El-Yakub, and Winifred Elizabeth Atu (Miss), for the 1st Respondent.

Emmanuel Ayoola for the 2nd Respondent.

I. M. Dikko with A. T. Hassan, Adokwe Adams Adokwe, and Danladi Mashaf, for the 3rd Respondent.

Respondent.