ADVANCED PEOPLES DEMOCRATIC ALLIANCE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13360(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of May, 2019
CA/A/366/19
RATIO
DIFFERENCE BETWEEN PRE-ELECTION MATTERS AND ELECTION PETITIONS
In the case of UWEH VS. INEC (2010) LPELR 5081, it was held:
“There is a clear distinction between pre-election matters and election petitions. Pre-election matters are not concerned with electoral law, practice while election petitions are complaints against the conduct of elections or what happened during the period the elections lasted.”
In the case of ADEOGUN VS. FASHOGBON (2008) 17 NWLR PART 1115 PAGE 149 @ 181, it was held that “the dictionary meaning of the word “pre” is ‘before’ and when used as a prefix to the noun “election’ it therefore means before the election. In other words, pre-election matter means actions, conduct or any event taking place or occurring before the election.” Finally, in the case of ITODO VS. YUNUSA GABRIEL & ORS (2010) LPELR ? 4342, it was held that “Pre-election disputes encompasses the stage of conducting party primaries to holding of actual elections on the other hand, post election disputes contemplate actual election which is challengeable on the ground of undue election or undue return albeit on specific grounds… therefore, post election disputes come under the exclusive jurisdiction of the Electoral Tribunal..” From the above cited cases, it can be said that pre-election matters are matters relating to the holding of primary elections and any matter arising before the actual election, while post-election matters are matters arising from issues arising from the conduct of an election or the challenge of an election or the returned winner.PER MOHAMMED BABA IDRIS, J.C.A.
THE COURT THAT HAS JURISDICTION TO HANDLE PRE-ELECTION MATTERS
In the Supreme Court case of BOKO VS. NUNGWA (2019) 1 NWLR PART 1654 PAGES 395 @ PAGE 405 PP 423 PARAS G, it was held that in determining the Court that has jurisdiction over pre-election matters,
“a community reading of Section 1 (3), 6(6) and 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 87(9) of the Electoral Act gives the appellant herein to the right to have his grievance determined by the Federal High Court or the High Court of the State or Federal Capital Territory.PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. ADVANCED PEOPLES DEMOCRATIC ALLIANCE (APDA)
2. WARIGBANI EZEKIEL ZEBULUN Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. ATTORNEY GENERAL OF THE FEDERATION
3. PEOPLES DEMOCRATIC PARTY
4. AFRICAN ACTION CONGRESS
5. ENGR. BIOKPOMABO FESTUS AWARA Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Originating summons filed on the 4th of April, 2019, before the Federal High Court sitting at the Federal Capital Territory, Abuja, the Appellants- as Plaintiffs instituted the action giving rise to this appeal wherein they sought before the Court the determination of the following questions:
1. Whether the 1st Defendant can in view of Section 26 of the Electoral Act 2010 as amended constitute a committee to investigate the suspension of Governorship and House of Assembly election in Rivers State held on 9th March, 2019 without involving all the candidates who participated in the election.
2. Whether the 1st Defendant is right in law to only have involved two political parties in the fact finding (i.e. PDP, MC) in the investigation without other political parties who participated in the election wherein they have resolve to only collate results instead of ordering fresh election.
RELIEFS SOUGHT
1. A declaration that the 1st Defendant have no right to suspend election and constitute committee to liaise with only one candidate in the
1
election.
2. An order disbanding the committee set up from submitting any report or considering any such report of the committee since they have colluded with the candidature of PDP and AAC to do their bidding.
3. An order of this Court cancelling out rightly the result in 15 local government where collations of result have not been concluded before the suspension was announced by ft Defendant namely; (0 Obio/Akpor (ii)Opobo Nkoro Khana (iv) Okrika (v) Ogu/Bolo (vi) Andoni (vii) Tai (viii) Bonny (ix) Ahoada East (x) Degema (xi) Emohua (xii) Etche (xiii) Ogba/Egbema/Ndoni (xiv)Omuma (xv) Gokana (xvi) Abua/Odual.
4. An order directing the 1st Defendant to appoint new returning officers for the local government Area as the present one is compromised.
5. An order directing the 1st Defendant, her agents, privies from tampering or manipulating already collated results from the local Government areas.
It is the Appellants case that the 2nd Appellant is the chairman and governorship candidate of the 1st Appellant. In the affidavit in support of their originating summons deposed to by the 2nd Appellant, it was stated that the
2
election for the office of Governor and State Houses of Assembly was slated to hold on the 9th of March, 2019. However, few hours into the election, the 1st Respondent suspended the election based on the fact that there was ballot snatching and violence in part of the state. A communiqu was given in respect of same.
After the said suspension, the 1st Respondent set up a committee to investigate the crisis in the state and in doing so, liaised and made communications only with AAC and PDP political parties, leaving out other political parties that participated in the elections including the 1st Plaintiff. At the end of the said investigation, the Committee members submitted a Report of the investigation upon which the 1st Respondent decided to start collation of results instead of ordering re-election in 16 local government areas.
This acts according to the Appellants casted a great shadow of doubt on the integrity of the 1st Respondent and amounted to an infringement on the rights of the 2nd Appellant. Also, the 2nd Appellant deposed that the 1st Respondent decided to begin collation of results in the 16 Local governments where the election
3
was disrupted instead of ordering fresh elections. The 2nd Appellant urged the trial ourt to cancel the election in the 16 local governments because he had a very high number of supporters there and he knew for sure that elections there were still ongoing at the time the 1st Respondent suspended the election. He also wanted new returning officers as the credibility of the ones available had been tainted.
The 3rd Respondent, Peoples Democratic Party filed a Motion on Notice, seeking to be joined as a defendant to the suit, stating that the action cannot be effectively heard in its absence as the judgment of the Court will be binding on it. The motion was granted.
The 3rd Respondent filed a Notice of Preliminary objection, seeking for the striking out of the suit on the grounds that the subject matter of the suit does not fall within the jurisdiction of the Federal High Court provided for under Section 251 of the 1999 CFRN as it borders on election to the office of Governor of Rivers State and Rivers State House of Assembly which is within the jurisdiction of the Rivers State Governorship and State House of Assembly Election Tribunals.
4
The 3rd Respondent had filed its counter affidavit in opposition to the Originating summons, deposing to the fact that the Governorship and House of Assembly election in Rivers state was completed and while results were being collated by the 1st Respondent, there was violence which caused the 1st Respondent to suspend the collation of results. Also, that the fact finding committee set up by the 1st Respondent never had private discussions with the 3rd Respondent and AAC but had a meeting with all the political parties. The 3rd Respondent stated that the Appellants had merely asserted all these and have placed before the Court no evidence to prove same. Also, that it was only the Governorship Election Tribunal and National Assembly and State Houses of Assembly Election Tribunal that can entertain the suit as it is a post election matter.
The 4th and 5th Respondents filed a Motion on notice, seeking to be joined as parties to the suit as they are necessary parties whose presence will help the Court arrive at a just decision as they will be directly affected by the judgment which application was granted. The 4th and 5th Respondents filed their counter affidavit to
5
the Originating summons, deposing to the fact that the 5th Respondent was the candidate of the 4th Respondent party at the election. That when the election took place on the 9th of March, 2019, the 1st Respondent had to suspend the collation of results based on the violence and insecurity that occurred in the state.
The 4th and 5th Respondents deposed that they never had any meeting with the 1st Respondent. Also, that they are sure that the 1st Respondent had made clandestine moves to cancel votes in areas where the 5th Respondent had the highest votes. According to the 4th and 5th Respondents, it would be better if the Resident Electoral officer of the 1st Respondent was replaced as the present one was tainted with dishonesty.
The trial Court delivered its judgment in suit No- FHC/ABJ/CS/300/2019 on the 9th of April, 2019. The Notice of preliminary objection filed by the 3rd Respondent was upheld and the suit was dismissed, after the Court declined jurisdiction on the grounds that the matter was an election matter meant for the Electoral tribunals.
Unhappy with the decision of the trial Court, the Appellants filed a Notice of Appeal
6
dated the 15th of April, 2019, comprising of two grounds of appeal.
In the Appellants brief of argument filed on the 6th of May, 2019 and settled by Adekunle Oladapo Otitoju Esq, two issues for determination were distilled from the grounds of appeal:
a. Whether the lower Court was right to decline jurisdiction in interpreting Section 26 of the Electoral Act 2010 as amended which was the Section the 1st Respondent relied on to suspend the election in Rivers State, stating that it is an election petition tribunal that have the jurisdiction to entertain the matter. (Distilled from Ground 1).
b. Whether this Court is competent to interpret this Section and grant the reliefs sought that the lower Court failed to interpret. (Distilled from Ground 2).
Both issues were argued together. The Appellants Counsel submitted that based on Section 251 (1) (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that:
r. 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,
7
government or its agencies.
That the trial Court abandoned its duties by refusing to interpret Section 26 of the Electoral Act 2010 (as amended) without considering its powers under Section 251 (1) (r) of the 1999 CFRN.
It was further submitted that the Court ought to determine the matter by interpreting Section 26 of the Electoral Act 2010 (as amended) in the light of the actions taken by the 1st Respondent during elections in Rivers State which failure made the committee to further engage in illegality by submitting a report that was influenced by the PDP Candidate whom they both had private discussions with during their investigations of the violence that later led to the suspension of the elections in Rivers State.
It was also submitted that the trial judge brought in extraneous materials to justify his reasons for declining jurisdiction as the Appellants claimed he never used the words “coasting to victory” in any of their processes. It is Appellants counsel’s argument that the election was still ongoing when the 1st Respondent suspended same and started private discussions with the candidate of the 3rd Respondent and therefore allocating
8
votes to him. Thus, this is not an issue for the election petition tribunal. This is because election petition has grounds upon which a party must predicate his case which are set out under Section 138 of the Electoral Act 2010 (as amended).
It was argued that the 3rd Respondent never denied having private discussion with the 1st Respondent as the 4th and 5th Respondents denied their involvement and further agreed that indeed, the 1st Respondent had private discussions with the 3rd Respondent, thus, robbing other candidates of their votes.
The Appellant’s counsel argued that the trial Court had jurisdiction to interpret Section 26 of the Electoral Act 2010 (as amended). It was submitted that the 1st Respondent had no power to suspend election and then constitute committees to investigate violence when the committee are not police officers saddled with the responsibility of investigation as the function of the 1st Respondent is provided for under Section 153 of the Constitution of the Federal Republic of Nigeria and Section 2 of the Electoral Act 2010.
%
