LawPavilion Online


Back

HON. KHAMISU AHMED MAILANTARKI v. HON. YAYA BAYCHI TONGO & ORS

(2017) LPELR-42467(SC)

In The Supreme Court of Nigeria

On Friday, the 2nd day of June, 2017

SC.792/2015


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

HON. KHAMISU AHMED MAILANTARKI - Appellant(s)

AND

1. HON. YAYA BAYCHI TONGO
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on the territorial jurisdiction of the High Court of the Federal Capital Territory.

FACTS:
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 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 Appellant%u2019s 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". It 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. 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 in Gombe/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, 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, 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 as Plaintiff at the High Court of the Federal Capital Territory took out the suit on an Originating Summons praying for some reliefs after the APC had submitted the name of the 1st Respondent to INEC as its candidate. 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. The preliminary objection was heard together with arguments on the originating summons. The trial Court dismissed the preliminary objections. On the substance of the originating summons, the trial Court 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 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 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. Hence the further appeal to the Supreme Court.

ISSUES:
The Court considered the appeal on the following issues:
%u201C1. 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?%u201D


DECISION/HELD:
On the whole, the Court held that the appeal lacks substance and it was thereby 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 was affirmed.


Read Full Judgment