(1)       As a person fully aware of the facts from inception of the nomination process and until the immediate incident which gave rise to this suit, I assert that at all times material, the appropriate candidates for the respective constituencies of the House of Representatives and Senatorial Districts with respect to Katsina State, were the 5th to 14th Defendants who were duly nominated by the 15th Defendant.

(2)       After the duly constituted primaries of the 15th Defendant, the 15th Defendant, in accordance with its Constitution forwarded the names of the 5th to 14th Defendants as the successful candidates, duly nominated for their respective constituencies. The names were accordingly published as the contestants for the office in accordance with the Electoral Act.

(3)       On 3rd February, 2011, the Plaintiffs herein filed suit No: FHC/ABJ/CS/126/2011 Sen. Yakubu Garba Lado & ORS v. CPC & ORS. Claiming that they were aspirants of 15th Defendant who won the purported primaries of 15th January, 2011, as against the primaries conducted on 13th January, 2011 by the (CPC) 15th Defendant,. On 25th February, 2011 the Federal High Court granted Plaintiffs’ claims.

(4)       Aggrieved by the decision the 5th Defendant herein appealed to the Court of Appeal in appeal No: CA/A/133/2011 CPC & ORS v. Senator Yakubu Garba Lado & ORS and the Court of Appeal set aside the decision of the Federal High Court stated above.

(5)       The plaintiffs herein appealed to the Supreme Court in SC. 157/2011, SC. 334/20121; Sen. Yakubu Garba Ldo & ORS v. CPC & ORS; Dr. Yusha’u Armiyau v. CPC & ORS and the apex court held that the dispute was intra party related to nomination arising from competing primaries of which the courts had no jurisdiction to adjudicate.

(6)       It is noteworthy that the National Assembly elections were conducted on 9th April, 2011 and the 15th Defendant did not alter the names of candidates already submitted.

(7)       The 5th to 14th Defendants were duly issued the certificate of return and consequently sworn in as they were, at all times material, the only duly nominated candidates in the elections which the 15th Defendant participated along with other political parties for the respective positions in the National Assembly.

(8)       In the absence of an Order of Court, it has been the practice of the 1st Defendant, which accord with the Constitution of Political Parties duly approved in line with the constitution of the Federal Republic of Nigeria 1999 (as amended), to accept only the list of candidates presented by the National Secretariat of political parties, and then treat those listed therein as candidates for the elections.

5. Hereto delivered and marked exhibits are –

(i) Letter dated 14th January, 2011 addressed to 1st defendant by the 15th defendant forwarding the names of 5th to 14th defendants as its candidates as Exhibit INEC 1.

(ii)Acknowledgment of receipt of forms CF.001 from the 5th to 14th defendants by 1st Defendant as Exhibits INEC 2(i) to (x).

The Appellants, as 5th – 14th defendants, filed a joint counter-affidavit with the 15th defendant. It is at pages 701 – 718 of the record. They aver therein that they were the valid and authentic candidates of the CPC, the political party that won all the seats in the disputed elections; that the plaintiffs/1st – 10th respondents were not “issued any valid certificates of return by” INEC, 1st defendant and that-

The 1st defendant merely issued the 5th – 14th defendants there certificates of return in validation of the mandate won by them and their sponsoring political party, the 5th defendant herein in the 2011 general election.

They also aver that the National Assembly and State House of Assembly Election Tribunal sitting in Katsina held that the plaintiffs the present 1st – 10 Respondents, “were not candidates of the 15th Defendant and therefore not qualified to contest for the various legislative seats in the 2011 general elections.” “And that on appeal to the Court of Appeal Kaduna, being the final appeal tribunal on the subject matter, it was held that the election Petitions were incompetent and then struck out because the ground upon which they were brought, that is on the qualification of the plaintiff to be candidates was a pre-election matter over which the said election tribunal had no jurisdiction and which was then pending at the Supreme Court in SC. 157/11.” These averments in paragraphs 32 and 33 of the Counter-Affidavit of 5th – 15th defendants do corroborate the plaintiffs –

1.        That the plaintiffs were the physical or de facto candidates who contested the said general elections; and

2.        That they won, and efforts to challenge their returns were unsuccessful, even at the Court of Appeal, the final court of competent jurisdiction over elections to the National Assembly.

At pages 1459 – 1460 of the record the court below (Coram: Olotu, J) found as a fact that:

The plaintiffs have shown vide affidavit evidence and Exhibits ‘KT 2 A-J and KT 3A – J that they are the candidates whose scores were declared and were returned by the 1st defendant on 9th/10th and 14th April, 2011 respectively in connection with the National Assembly elections which held on 9th April, 2011 … – The plaintiffs Exhibits KT 2A – J and KT 3A – J stand as proof for the plaintiffs as the candidates whose scores were declared and who were returned by the 1st Defendant at the election.

These are conclusive findings of fact, are not being contested by the parties, particularly INEC, the 1st defendant at the court below. The settled principle of law is that decisions of court not appealed against remain valid, binding, subsisting and presumed acceptable between the parties. See LSBPC v. PURIFIATION TECHNIQUES (NIG) LTD. (2012) 52 NSCQU (pt. 10 274 at 301 D-E.

Paragraph 33 of the counter-affidavit of 5th – 15th defendants admit that the Court of Appeal is the final court as regards appeals from National Assembly and State Houses of Assembly Election Tribunal. This is an acknowledgment of Section 246 (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Section 285 (1) (a) of the 1999 Constitution, as amended, vests in the National Assembly and State Houses of Assembly Election Tribunal exclusive jurisdiction “to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly.”

The facts of this case suggest that INEC, the 1st defendant, conducted the election and declared each of the 1st – 10th respondents winner in their respective constituencies. INEC made the return after the conducting elections in those constituencies, which elections have not been nullified or invalidated. For each return, it issued a certificate of return to each of the 1st – 10th respondents. Thereafter INEC recanted, and purportedly withdrew the certificates of return issued to 1st – 10th respondents, and issued to the appellants, each, a new certificate or return.

I had set out the facts in which the 1st – 10th respondents, as plaintiffs took out the originating summons; the essence of which is a judicial review of the powers of INEC, and the 12th – 14th respondents in this appeal.

The law is settled that it is the claim of the plaintiff that determines the jurisdiction of the trial court. See Emeka v. Okadigbo (2012) 18 NWLR (pt.1331) 55 at 89 & 101; Adeyemi v. Opeyori (1976) 6-10 SC 31; Anya v. Iyayi (1993) 7 NWLR (pt.305) 290; Anigboro v. Sea Trucks Nig Ltd (1995) 6 NWLR (pt.399) 35; Onuorah v. Okeke (2005) 10 NWLR (pt.932) 40.

I have read the claims of the plaintiffs and 1st-10th respondents and the facts on which the questions posed and the reliefs sought are predicated. I had earlier set them out in this judgment. I think, here, a distinction should be made between judicial review of administrative actions, which by dint of Section 6 (6) of the 1999 Constitution, as amended, generally falls within inherent jurisdiction of court of law, and “the jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly,” which jurisdiction falls within the exclusive jurisdiction of the National Assembly and State Houses of Assembly Election Tribunal by dint of Section 285 (1) of the 1999 Constitution, as amended.

Judicial review is a central mechanism of administrative law or public law, by which the judiciary historically took constitutional responsibility of protecting against abuses of power by public authorities. It ensures that not only that no public body or authority is above the law, but also the protection of the rights of all those affected by governmental actions. The courts insist that they have a constitutional role and duty of ensuring that the rights of citizens are not abused by unlawful exercise of executive power. Lord Diplock had stated in Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374 at 408E that “judicial review–provides the means by which judicial control of administrative action is exercised.” The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law. See R (Beeson) v. Dorset County Council (2003) UKHRR 353. And that public officials or authorities must be governed by law and by law alone their actions be guided.

I will pursue a little to reflect on the jurisdiction of the Federal High Court as donated or vested in the court by Section 251 (1) paragraph (r) of 1999 Constitution, as amended; which provides –

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the Federal high Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

(r) “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative faction or decision by the Federal Government or any of its agencies.”

The 11th-14th respondents, who were the original 1st-14th defendants, clearly answer to the description of “the Federal government or any of its agencies” whose “executive or administrative actions or decisions” were being questioned by the 1st – 10th respondents, as plaintiffs, at the Federal High Court. Reading Sections 6(6) and 251 (1) (r) of the Constitution together, I am of the firm view that the jurisdiction of the Federal High Court to judicially review executive or administrative decisions or actions of “the Federal Government or any of its agencies” is undeniable. These appellants, who have avoided commenting on these constitutional provisions vesting in the Federal High Court jurisdiction to undertake judicial review of the administrative actions or decision of the 11th – 14th respondents, are not on any firm grounds in their insistence to the contrary.

I have painstakingly read the brief of argument of the appellants as settled by Ismaila Alasa, Esq on behalf of John O. Baiyeashea, SAN. Even though it purports to stoutly reject the contention of the 1st – 10th respondents that their suit, as plaintiffs, was not strictly an election petition requiring the Federal High Court to determine whether they, and not the appellants, were validly elected as members of the National Assembly; it concedes in paragraph 4.7 at page 6 thereof that the plaintiffs–reliefs 1 and 2 asked for declaration that the 1st defendant (11th respondent herein (INEC) lacks the powers to either directly, or indirectly, review, cancel, nullify, withdraw, void or invalidate the certificates of return issued to the plaintiffs (1st – 10th respondents herein) consequent upon their winning elections.

To be continued.