JOSEPH HEMEN BOKO V. HON. BENJAMIN B. NUNGWA & ORS. (2018)

Background

Joseph Hemen Boko participated in the All Progressives Congress primary election conducted on 2 December 2014 for the Kwande West State Constituency seat in the Benue State House of Assembly. He alleged that he obtained the highest number of votes, scoring 97 votes against Hon. Benjamin Nungwa’s 86 votes, and was accordingly declared the winner. However, Nungwa challenged the result before the APC Primary Election Committee, alleging that counterfoil votes had been used to inflate Boko’s score. Following an investigation, the disputed votes were deducted. Nungwa was then credited with 71 valid votes, while Boko was credited with 69, and Nungwa was declared the APC candidate. His name was subsequently forwarded to INEC, and he won the general election held on 11 April 2015.

Boko commenced proceedings by originating summons at the Federal High Court, Benue State Division, seeking redress in respect of the party primary and the substitution of Nungwa’s name. The Federal High Court ultimately declined jurisdiction, treating the dispute as an internal matter of the political party. Boko appealed to the Court of Appeal. Nungwa and the APC filed a cross-appeal challenging jurisdiction, but the cross-appeal was filed 62 days out of time and without leave. Despite recognising the delay, the Court of Appeal relied on the cross-appeal because it raised jurisdictional issues, dismissed Boko’s appeal without hearing it on the merits, and struck out his case.

Issues

1. Whether Article 19(d)(v) of the APC Constitution, which purported to expel members who approached court without exhausting internal party remedies, was constitutional and capable of preventing Boko from suing.
2. Whether the Court of Appeal had jurisdiction to hear and determine a cross-appeal filed out of time and without the required leave.
3. Whether a notice of appeal constituted the foundation of an appeal and whether an incompetent notice deprived the appellate court of jurisdiction.
4. Whether the Federal High Court Civil Procedure Rules on service and execution of process derived their force from sections 94 and 96(2) of the Sheriffs and Civil Process Act.
5. Whether the failure to endorse an address for service outside jurisdiction invalidated Boko’s originating summons or the entire proceedings.
6. Whether the pre-election dispute was extinguished merely because the general election had taken place and Nungwa had been sworn into office.

Ratio Decidendi

The Supreme Court, in the lead judgment delivered by Okoro JSC, held that the Court of Appeal acted without jurisdiction when it proceeded to hear a cross-appeal which it had already found to be filed 62 days out of time. The nature of the trial court’s decision was determined by its legal effect. Since the trial court’s decision that it possessed jurisdiction did not finally dispose of the parties’ rights, it was interlocutory. The applicable statutory period for appealing against such a decision was therefore 14 days. The respondents ought to have sought the necessary extension of time and leave before filing the cross-appeal.

The Court emphasised that appeals are creatures of statute. Compliance with statutory periods and procedural rules is mandatory because the appellate court derives its jurisdiction from the Constitution and enabling legislation. A notice of appeal is the foundation of an appeal. Once it is incompetent, there is no valid appeal before the appellate court, and the court cannot rely on the supposed importance of a jurisdictional question to cure that defect. Jurisdiction may be raised at any time, including for the first time on appeal, but only within a competent proceeding.

The Court further held that the Nigerian Constitution and section 87(9) of the Electoral Act 2010 entitled an aggrieved aspirant to approach the Federal High Court, a State High Court or the High Court of the Federal Capital Territory. A political party’s constitution could not oust that statutory and constitutional right of access to court. Article 19(d)(v) of the APC Constitution was therefore invalid to the extent that it purported to expel a member or prevent court proceedings. The alleged failure to exhaust internal remedies was also a factual matter that ought to have been specifically pleaded and proved; it could not be raised belatedly as a bare jurisdictional objection.

Court Findings

The Supreme Court found that the Court of Appeal improperly entertained the respondents’ incompetent cross-appeal and improperly used it as the basis for dismissing Boko’s appeal without hearing it. The Court also observed that the Court of Appeal should have determined the substantive appeal, even if it concluded that it lacked jurisdiction, because it was the intermediate appellate court and its decision on the merits would assist the Supreme Court if the jurisdictional conclusion was later found to be wrong.

On service, Peter-Odili JSC explained that the Federal High Court was not included within the courts contemplated by sections 94 and 96(2) of the Sheriffs and Civil Process Act. The Federal High Court’s power to regulate its practice and procedure derived principally from the Constitution, the Federal High Court Act and its own 2009 Rules. The earlier decision in Owners of the MV “Arabella” v. N.A.I.C. was distinguished because it concerned a different statutory and procedural framework. The alleged defect concerning endorsement of an address for service was, in any event, treated by the Court of Appeal as a procedural irregularity, and that unchallenged finding remained binding.

Conclusion

The appeal was allowed. The Supreme Court set aside the decision and orders of the Court of Appeal, struck out the respondents’ cross-appeal, and directed that Boko’s appeal be heard on its merits by a differently constituted panel of the Court of Appeal. The respondents’ cross-appeal before the Supreme Court was also struck out. No order as to costs was made, and accelerated hearing was directed.

Significance

The decision is significant for Nigerian electoral and appellate procedure. It confirms that section 87(9) of the Electoral Act protects an aspirant’s right to challenge irregularities in a party primary notwithstanding contrary party rules. It also reinforces the constitutional supremacy of the Constitution over political-party constitutions, the continuing life of a pre-election cause of action after the election, and the strict consequences of filing an interlocutory appeal outside the prescribed period. Finally, it demonstrates that jurisdiction, although fundamental, cannot be invoked through an invalid appellate process.