Continued from last week…

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.

Relief 3 wants a declaration that the 1st defendant (INEC) lacks the power to issue certificates of return to the 5th -14th defendants – in relation to the seats for which the plaintiffs were earlier given certificates. Relief 5 is for it to be declared that the 2nd – 4th defendants was (sic) wrong to have sworn in the 5th – 14th defendants upon invalid certificates. Relief 6 is for an order nullifying the certificates of return issued by the 1st defendant (INEC) to the 5th – 14th defendants while Relief 7 is for an order directing the 5th – 14th defendants to immediately vacate their seats in the National Assembly.

And in paragraph 4.9 at page 7 of the same brief appellants opined, correctly in my view, that “the reliefs claimed are all in respect of the propriety of the conduct of (INEC) in the issuance, cancellation, withdrawal, nullification and re-issuance of the same certificates and the use of them by the 1st – 10th appellants to be sworn in by the 12th – 14th respondents.

This appeal, like the entire defence of the appellant at the court below; is predicated on the argument that the suit of the 1st-10th respondents, as plaintiffs, is over a post-election issue. Section 285 (1) (a) of the 1999 Constitution, as amended, deals with whether any person has been validly elected as a member of the National Assembly.

As the Supreme Court held in Agbakoba v. INEC (2008) 18 NWLR (pt.1119) 489 at 536 E, post election disputes contemplate actual election which is challengeable on the ground of undue election or undue return albeit on any of the specific grounds prescribed by Section 138 (1) (a) – (d) of the Electoral Act, 2010, as amended. The grounds are –

(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.

(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act.

(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)    that the petitioner or its candidate was not validly nominated but was unlawfully excluded from the election.

The case of the 1st – 10th respondents is that they, and not the appellants, were the candidates at the election whose returns were unsuccessfully challenged at the National Assembly and State Houses of Assembly Tribunal, and the Court of Appeal (i.e the final court on this matter). It is also their case that the returning officer, in each election, declared them winners and duly made return and that in evidence of their returns INEC issued them, each, certificates of return.

And that INEC, being functus officio by operation of Sections 68 (1) and 75 of the Electoral Act had no power in law to recall, cancel or nullify the certificates of return issued to them, and/or issue fresh certificates of return to the appellants, who were not candidates at the elections. And further that the 12th, 13th and 14th respondents have no powers in law to give effect to the invalid certificates of return issued to the appellants.

Therefore, as Mr. Baiyeshea, SAN of counsel to the Appellants conceded, rightly in my view, the suit of the 1st – 10th respondents is all about “the propriety of the conduct, “administrative, of INEC and the 12th – 14th respondents. INEC does not possess any powers in law to alter the effect of any return made by its Returning Officer or any certificates or return in evidence of such return.

The 12th, 13th, and 14th respondents lack powers, in law, to give effect to any illegality or invalid certificate of return. That is the summary of the suit of the 1st – 10th respondents at the court below. This definitely is not a post-election issue, so called, that could come only under Section 138 of the Electoral Act, 2010, as amended and Section 285 (1) of the 1999 Constitution, as amended.

The essence and purport of the plaintiffs’ suit, as correctly summarised by the appellants, are that it be declared that INEC lacked the vires or powers in law to withdraw, cancel or nullify the certificates or return issued to the 1st – 10th respondents who were the de facto candidates at the elections conducted by INEC, which elections have not been invalidated by the National Assembly and State Houses of Assembly Election Tribunal that has exclusive jurisdiction to do so under Section 285 (1) (a) of the Constitution, as amended, or the Court of Appeal, being the final appeal court in the matter by dint of Section 246 (3) of the same constitution. In other-words, the plaintiffs posit that INEC, having conducted valid elections, made returns therefrom and issued certificates of return in evidence of their due returns had become functus officio in the matter.

The phrase “Functus Officio” is Latinism for a task performed, fulfilling the function, discharging the office or accomplishing the purpose or a task or duty assigned and thereby becoming of no further fore or authority.

See Anyaegbunam v. A.G., Anambra State (2001) 6 NWLR (pt. 710) 532, Onyemobi v. President, O.C.C. (1995) 3 NWRL (pt.381) 50; Ikong v. Udobong (2007) 2 NWLR (pt.1017) 184. The Supreme Court in Mohammed v. Husseini (1998) 14 NWLR (pt.584) 108 said that functus officio is a Latin expression for “task performed”.

In the context of elections under the Electoral Act, 2010, as amended the task, statutorily vested in or assigned to INEC, is performed once INEC conducts and concludes an election, declares the results and issued certificate of return to the winner. Thereafter its office, as regards that election is conclusively and effectively exhausted, or spent.

Thereafter, INEC lacks legal powers or authority to reverse itself or outcome of the election. It jurisdiction or vires, as regards that election, would have been exhausted. That in my view, is the purport of Sections 68 (1 ) (c) and 75 of the Electoral Act, 2010, as amended which provide in clear and unambiguous terms as follows:-

68 – (1) The decision of the Returning Officer on any question arising from or relating to (c) declaration of scores of candidates and the return of a candidate, shall be final subject to review by a tribunal or court in an election petition.

75 – (1) A sealed certificate of return at the election in a prescribed form shall be issued within 7 days to every candidate who won an election under this Act –

Provided that where the Court of Appeal or the Supreme Court being the final appellate court in any election petition as the case may be nullifies the certificate or return of any candidate, the commission shall, within 48 hours after receipt of order of such court, issue the successful candidate with a Certificate of Return.

(2)    Where the commission refuses or neglects to issue a certificate of return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing in a candidate declared as the winner by that court.

The question is; under what law did INEC purport to act in ordering the withdrawal, cancellation or nullification of the certificates of return it issued earlier to the plaintiffs, now 1st-10th respondents in this appeal? Since it has not shown under what legal authority or power it acted to withdraw, cancel or nullify the certificates of return issued to the plaintiffs/1st – 10th Respondents.

INEC definitely has acted ultra vires. It also acted ultra vires in is purported issuance of certificates of return to the appellants who were not candidates at the election. A certificate of return can only be issued to the candidate at the election who has been declared as duly returned by the Returning Officer under Section 68 (1)(c)of the Electoral Act read together with Section 75 (1) of the same Act.

None of the parties has by way of appeal, or grounds of appeal, challenged the specific finding by the court below at pages 1459 – 1460 of the record to wit:

The Plaintiffs Exhibits ‘KT 2A – J and ‘KT 2A – 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.

In accordance with Section 68 (1) of the Electoral Act, 2010 as amended. The Supreme Court decision in Lado v. CPC SC 157/11 & SC 334/11, reported as (2012) ALL FWLR (pt.607) 623 which struck out the suit No. FHC/ABJ/CS/126/11 and appeal no CA/A/133/11 for being incompetent did not say, and could not have said, that the plaintiffs, now 1st – 10th Respondents, were candidates at the election.

There is no evidence that any Tribunal or Court of competent jurisdiction had declared the appellants the winners, each of any elections. It is clear that the Senate President, the Speaker of House of Representatives and The Clerk of the National Assembly had acted without authority of any law to swear-in and/or admit the appellants to the respective chambers of the National Assembly.

It is my considered view that the 12th – 14th respondents herein can only legitimately swear-in or admit the appellants to the various or respective chambers of the National Assembly only upon presentation of valid and lawful certificates of return issued under the Electoral Act. Doing otherwise would ultra vires their powers.

And there comes the jurisdiction of the court to review their actions viz-a-viz their powers. Where a public body, officers or persons act without legal authority or in excess of the authority vested in them by law such decision or actions are null and void and judicial review thus lies to question or impeach such actions or decisions, see Anisminic Ltd. v. Foreign Compensation Commission (1969) A.C. 147.

My Lords, from all I have been trying to say above it is very clear to me that the four issues/questions formulated by the Appellants in paragraph 3 at page 3 of the brief of argument should be answered in affirmative, and consequent their appeal be dismissed. The issues are follows:-

ISSUE 1

Whether the lower court is right in holding, in its judgment, that it has jurisdiction to entertain the 1st to 10th respondents’ case as presented in the originating summons Ground 2, 3, 4, and 7 in the Notice of Appeal filed on 20th of March, 2013.

ISSUE II

Whether the lower court is right in entertaining the case of the 1st to 10th respondents and granting all the reliefs sought in the originating summons. Grounds 9, 10, 11 and 12 in the Notice of Appeal filed on 20th of Mach, 2013.