Continued from last week…

ISSUE III

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 6, 8 of the Notice of Appeal field on 20th of March, 2013.

ISSUE IV

Whether the lower court was right in dismissing the preliminary objection and relying on Section 251 (1) of the 1999 Constitution (as amended) to assume jurisdiction in this case. Grounds 1, in the Notice of Appeal filed on 20th March, 2013.

For avoidance of doubt I am of the firm view that the court below has jurisdiction to entertain the case the 1st – 10th respondents presented before it on originating summons. In addition to the specific jurisdiction of the Federal High Court under Section 251 (1) (p), (q) and ® of the 1999 Constitution, as amended, jurisdiction inheres in the court below by dint of Section 6 (6) of the said constitution, to undertake judicial review of the powers the 11th – 14th respondents, who were the 1st – 4th defendants at the court below, arrogated to themselves in the matter of the certificates of return issued to the Appellants by the 1st defendant/11th respondent (INEC) when the appellants were not candidates at the election orgainsed by INEC, and INEC having, in the election in which 1st – 10th respondents were candidates, declared them the winners and issued a Certificate of Returns issued to each of them by INEC in evidence of that return. In issuing fresh certificates of return to appellants and purporting to ha
ve withdrawn, canceled on nullified the previous certificates of return issued to the 1st – 10th respondents, the plaintiffs, INEC acted ultra vires particularly in view of Sections 68(1) and 75 of the Electoral Act, 2010, and Sections 285 (1) and 246 of the 1999 Constitution, as amended. INEC, having no legitimate powers in law to issue Certificate of Return to any person  who was not a candidate at the election and withdrawing or canceling certificate of return issued to the candidate at the election; the certificates of return issued to he appellants were/are null and void. Those certificates being void and a nullity confer no authority on the 12 – 14th respondents to swear-in the appellants as members of National Assembly.

The law in Nigeria, as re-stated by the Supreme Court in Rossek v. A.C.E. (1993) 10 SCNJ 20 at 39 – 40, is that a party, like the 1st – 10th respondents in this appeal, who is aware that an order or act of public authority or body is null or invalid should apply to have it set aside by the court of competent jurisdiction. Yes, I agree with the appellants that on authority of Macfoy v. UAC Ltd (1962) AC 152; Ladoja v. INEC (2007) 12 NWLR (pt.1047) 119 that a void act confers no right or liability. It, however, still needs to be formally set aside by the law court in its judicial review jurisdiction: Rossek v. ACE (supra).

The mistake the appellants have been perpetually laboring under in this matter is their confusing the judicial review jurisdiction of the Federal High Court under Section 6(6) and 251 (1) of the 1999 Constitution over the questions or issues raised before it with the limited and exclusive jurisdiction of the National Assembly and States Houses Assembly tribunal under Section 285 (1) of the 1999 Constitution, as amended. The complaint of the 1st – 4th defendants, now 11th – 14th respondents, acted ultra vires their powers and they prayed the court below to declare so. That may appear to be post-election dispute; but is is not such a post-election dispute that falls within the exclusive jurisdiction of the Election Tribunal as the Appellants sought to make it look in their preliminary objection. I am of the firm view ther3efore that the court be3low was right in dismissing the preliminary objection based on Section 251 (1) of the 1999 Constitution, as amended Section 251 (1) ® of the Constitution specifically v
ests in the Federal High Court jurisdiction over

any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

This is in addition to its jurisdiction over matters covered by Section 251 (1) (p) & (q) read together with the proviso to sub-section (1) of the same section 251 and section 6(6) of the same constitution. The proviso to section 251 (1) of the constitution says that nothing shall prevent a person from seeking redress in any court against the Federal Government or any of its in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity; as the instant case.

The court below has jurisdiction in the matter of the judicial review of the action or decision of INEC, who after issuing certificates of return to the 1st – 10th respondents who were actually candidates at elections INEC conducted in their respective constituencies, purported to withdraw, cancel and nullify the said Certificates of Return without any order of a court or tribunal of competent jurisdiction. The court also has jurisdiction in the matter of the Certificates of Returnh issued to the Appellants by INEC who were not candidates at the elections conducted by INEC and withotu order of court or tribunal established by law. Ditto for 1th – 14th respondents giving effect to the certifiates of return issued to the appellants which certificates of return are invalid in law. In view of all I have said the Federal High court was right in dismissing the appellants’ preliminary objection and entering judgement for the 1st – 10th respondents, as plaintiffs, as it did.

There is no merit in this appeal argued on all the four issues formulated and argued by the Appellants. The appeal is hereby dismissed in its entirety. The judgement and and orders of Federal High Court in the suit No. FHC/ABJ/CS/1042/2011 delivered on 11th January, 2013 are hereby affirmed. Parites shall bear their respective costs.

EJEMBE EKO

JUSTICE, COURT OF APPEAL

Counsel appearances

John Olusola Baiyesnea, SAN lead Prof. Yem. Akinseye-George SAN, Ismalia Alasa, Samuel Ipinlaiye, Richard baiyeshea, Usman Afegbua, Clifford Omozeghan, Stewart David, Adedeji Adeyemi and Joshua Akor for the Appellants

E.Y. Kurah with C.O. Agwu (Mrs) and Samuel Ogala for the 1st – 10th Respondents.

Tobechukwu Nweke for the 11th Respondents

Ifeanyi Nnalike with Ejike Obiefuna for the 12th – 14th Respondents.

CA/A/83/2013

JIMI OLUKAYODE BADA, JCA

I had a preview of the lead judgement just delivered in this appeal by my Learned brother Ejembi Eko, JCA. I agree with his analyses and conclusions.

Let me by way f complement add that there is a difference between a pre-election and post-election. In case of Pre-election an aspirant who complains that any of the provisions of the Electoral Act and the guidelines of a political party ha snot been compiled with in the selection 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. See Section 87 (9) of the Electoral Act 2010, as amended.

In the case of post-election, Section 285 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended deals with whether any person has been validly elected as a member of National Assembly or as a member of the House of Assembly of a state.

In this appeal, the issue in contention is post-election in nature i.e having arisen after the conduct and/or conclusion of the conduct of the election, but it is not the kind of post-election matter that should go to the tribunal. The post-election disputes which should go to the election tribunal are those circumscribed and within the contemplation of Section 138 (1) (a)-(d) of the Electoral Act 2010, as amended. Under the Section mentioned above, an election may be challenged based upon the following grounds:-

(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.

© that the respondent was not duly elect4ed by majority of lawful votes cast at the election, or

(d)    that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

The case of the 1st to 10th respondents (who were 1st to 10th plaintiffs) in the lower court was for the interpretation of Sections 68 (1) and 75 (1 & (2) of the Electoral Act 2010, as amended.

Under Section 68(1) of the electoral Act w0q0, INEC has the burden of obligation to declare the scores of candidates and the return of a candidate. And the declaration is subject to review by a tribunal or court. INEC cannot review a return under any circumstance. Also under Section 75 (1) of the same Electoral Act, once the certificate of return is issued, it cannot be reviewed by INEC except in accordance with the order of a tribunal or court, and pursuant to Section 75 (2) of the same Act where the Commission refuses o neglects to issue a Certificate of Return, a Certified True Copy of the Order o a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as he winner by that court.

In my humble view this case falls outside the jurisdiction of the Election Tribunal as provided by Section 285 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The jurisdiction is meant for the regular courts. The Federal High Court therefore had jurisdiction to review the acts of INEC which is a Federal Government agency under Section 251 (1) ® of the 1999 Constitution.

See – Yusuf Vs Obasanjo (2004) All FWLR Part 213 Page 1884 at 1914 – 1915 paragraphs H-A

for the above reasons, and the more detailed reasons in the Lead Judgement, I am of the view that his appeal lacks merit and it is dismissed by me. I endorse the orders made in the Lead Judgement.

JIMI OLUKAYODE BADA

JUSTICE, COURT OF APPEAL

APPEAL NO. CA/A/83/2013

ADZIRA GANA MSHELLA. JCA.

I have read the judgement just delivered by my learned brother Eko, JCA. I am in complete agreement with his copious reasoning and conclusion that the appeal be dismissed and the decision of the lower court be affirmed. No order as to costs.

ADZIRA GANA MSHELLA

JUSTICE, COURT OF APPEAL

CA/A/83/2013

SIDI DAUDA BAGE

I have had opportunity fo reading the judgement of my learned Brother, Ejembi Eko, JCA in this appeal. The issues raised by the appellants have been fully considered, and, I have nothing further to add.

I am in complete agreement with the judgement, and therefore adopt the Order made by my learned brother in the lead judgment.

SIDI DAUDA BAGE, JCA

JUSTICE, COURT OF APPEAL

CA/A/83/2013

ONYEKACHI A. OTISI, JACA:

I have had opportunity of reading the jdugement of my learned brother, Ejembi Eko, JCA in this appeal. The issues raised by the Appellants have been fully considered, and, I am in complete agreement with the judgement. I will only make a few comment in support.

Jurisdiction is fundamental and always threshold issue, determined by the claims of the plaintiff and by the statutory powers of the court to which the matter is submitted for adjudication. See: Aewa Paper Converters Ltd vs. NDIC (Nig. Universal Bank Ltd.) (2006) 6-75.C. 84; Adetayo vs. Ademola (2010) 15 NWLR (PT 1215) 169.

The functions or powers of the 11the Respondent are well spelt out in the Third Schedule Part 1 Section 15 (a) – (I) of the Constitution of the Federal Republic of Nigeria 1999, as amended.

By virtue of the provisions of Section 68(1)(c) of Electoral Act 2010, as amended, it is the responsibility of the 11th Respondent to declare the scores of candidates and the return of a candidate. This declaration by the 11th Respondent shall be final; and, only is subject to review by a tribunal or court in an election petition under the Act.Outside these provisions,s the 11sth respondent is without the necessary vires to review its declaration.

Upon the provisions of Section 75(1) of Electoral Act 2010, as amended, once the certificate of return is issued, whether made in error or not, the issue cannot be reviewed by the 11th respondent, except upon an order of a tribunal or court. See: Ibrahim v Shagari (1983) 9 SC 59; ANPP vs. Faruk (2008 LPELR-3783 (CA).

The lower court, by virtue of the provisions of Section 251(1)(r) of Constitution, is empowe3red to review the acts of the 11th Respondent, which is a Federal Government Agency. See: Oloruntobo-Oju vs. Dopamu (2008 34 NSCQR (PT 1) 278. The lower court therefore, had the jurisdiction to grant the reliefs 1, 2, and 3 sought by the 1st – 10th respondents before the lower court.

Reliefs 4, 5, 6 and 7 sought by the 1st – 10th respondents before the lower court were therefore consequential upon the grant of Reliefs 1, 2, and 3.

As already stated above, I am in complete agreement with the conclusions reached by my learned Brother. I therefore, adopt the Orders made  in the lead judgment.

ONYEKACHI A. OTISI, JUSTICE, COURT OF APPEAL