MAHMOOD HALILU AHMED v. MOHAMMED UMARU JIBRILLA & ORS
(2019)LCN/13362(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of May, 2019
CA/A/361/2019
RATIO
ELECTION PETITION: WHEN DO PRE-ELECTION MATTERS ABATE?
The general rule is that pre-election matters do not abate even after the holding of an election. The Courts will have jurisdiction to continue with the hearing up to finality, even where the winner has been sworn in. See generally ARDO VS. INEC (2017) LPELR – 41919 (SC); OKAFOR VS. NWAZOJIE (2015) LPELR – 40690 (CA); ODEDO VS. INEC & ORS (2008) LPELR – 2204 (SC); LAU VS. P. D. P. (2017) LPELR – 42800 (SC); MATO VS. HEMBER (2017) LPELR – 42765 (SC).PER MOHAMMED BABA IDRIS, J.C.A.
ACADEMIC SUITS: WHEN A SUIT IS SAID TO BE ACADEMIC AND THE EFFECT
It is academic because it will be of no practical utilitarian value to the Appellant even if judgment is given in his favour. I think it is now elementary that the Courts are to determine live issues. Surely, in the present case, as between the Appellant and the Respondents, there is no live issue. See generally PLATEAU STATE VS. A. G. FEDERATION (2006) 3 NWLR (PT. 967) 346; A. G. ANAMBRA VS. A. G. FEDERATION (2005)9 NWLR (PT. 931) 610; AMAECHI VS. INEC (2007) 9 NWLR (PT. 1040) 54; ACTION CONGRESS VS. INEC (2007) 18 NWLR (PT. 1060) 50; BEWAJI VS. OBASANJO (2008) 9 NWLR (PT. 1093) 540.PER MOHAMMED BABA IDRIS, J.C.A.
WHETHER SECTION 31(6) OF THE ELECTORAL ACT DEPRIVES THE TRIAL COURT OF JURISDICTION TO SET ASIDE ANY POLITICAL PARTY PRIMARY
Does Section 31(6) of the Electoral Act deprive the trial Court of jurisdiction to set aside any political party primary, where subsequent elections are held before final judgment? Certainly not. The jurisdiction conferred on the trial Court under Section 31 (5) is distinct and separate from the special jurisdiction under Section 87 (9) of the Electoral Act. It is clear that the latter Section operates irrespective of Section 31 or any other provision of the Electoral Act or rules and guidelines of a political party. Therefore it is wrong for the lower Court to construe Section 31 (6) as ousting the jurisdiction of the Court once the main election has taken place. Sections 31 (1)(4) (5) and (6) of the Electoral Act are not provisions that can oust the jurisdiction of a trial Court once the main election has taken place. See NOBIS-ELENDU VS. INEC & ORS (2015) 16 NWLR (PT. 1485) 197; (2015) ALL FWLR (PT. 812) 1505.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
MAHMOOD HALILU AHMED Appellant(s)
AND
1. MOHAMMED UMARU JIBRILLA
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. WEST AFRICAN EXAMINATION COUNCIL (WAEC)
5. THE REGISTERED TRUSTEES OF CENTRE FOR REFORM AND PUBLIC ADVOCACY Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This appeal arose from the ruling of the Federal High Court of Nigeria, Abuja Division (the Court below) delivered on the 15th April, 2019 by I. E. Ekwo J. The said ruling of the Court below is found at pages 103 – 122 of the record of appeal. The Court below struck out the Appellant’s suit on the ground that it has become academic and the Court cannot exercise jurisdiction on academic issues.
The Appellant dissatisfied with the aforesaid decision, appealed to this Court vide a Notice of Appeal dated 15th April, 2019 and filed on 16th April, 2019 found at pages 125 – 129 of the records.
BACKGROUND FACTS
The Appellant as the Plaintiff at the Court below commenced this action against the 1st – 5th Respondents on 14th November, 2018. By an amended statement of claim dated 18th January, 2019 and filed 21st January, 2019 (amended by order of Court made on 6th February, 2019 by A. R. Mohammed J.), the Appellant’s claim against the Respondents jointly and severally is for 7 (seven) reliefs as follows:
1. A Declaration that the 1st Defendant’s INEC Form CF
1
001 and academic certificates attached thereto submitted to the 3rd Defendant
a. In 2015 and 2018 by the 1st and 2nd Defendants; and
b. By the 1st Defendant in 2011
contain false information regarding the academic credentials of the 1st defendant and did not emanate from the 4th Defendant or any valid and registered institution, which rendered the publication of the 1st Defendant’s name by INEC as APC Governorship Candidate for Adamawa State on 9/11/2018 Illegal, a breach of both the Electoral Act 2010 (as Amended) and the Constitution of the Federal Republic of Nigeria 1999.
2. A Declaration that by virtue of the combined provisions of Section 177(d) of the Constitution of the Federal Republic of Nigeria (As Amended) and Section 31(5) & (6) of the Electoral Act 2010 (as amended), the false information, and academic certificates of the 1st Defendant which were submitted to the 3rd Defendant by the 1st and 2nd Defendants in 2015 and 2018, and the 1st Defendant in 2011, all disqualify the 1st Defendant from contesting as the Governor of Adamawa State in the 2019 General Elections, and render 3rd Defendant’s acceptance of 1st
2
Defendant, as aforesaid, illegal, unconstitutional null and void.
3. An Order disqualifying the 1st Defendant from contesting for the position of the Governor of Adamawa State in the 2019 General Elections for submitting to the 3rd Defendant in his INEC Form CF 001 false information in respect of his academic qualifications, and other relevant matter in the past, and period leading up to and including 2018, which false information was unknown and unverifiable before 9/11/2018, the date of publication thereof, by INEC
4. An order restraining the 3rd Defendant from further accepting, processing or otherwise further representing the name of the 1st Defendant as the Adamawa State Governorship Candidate for the 2019 General Elections in the State, pursuant to its illegal stamp of approval by publication of 9/11/2018.
5. A Declaration that the Plaintiff being the legally qualified contestant who polled the highest number of votes cast in the Primary Election of APC for Gubernatorial Candidacy, is the rightful candidate of the 2nd Defendant for the Adamawa State 2019 Governorship election, notwithstanding the 3rd Defendant’s illegal and wrongful
3
publication of 9/11/2018.
6. An Order directing the 2nd Defendant to immediately forward to the 3rd Defendant the name of the Plaintiff as the rightful candidate of the 2nd Defendant for the 2019 Adamawa State Governorship election, in replacement of the illegal and wrongful publication of 9/11/2018.
7. An order that whether or not the immediate above order is carried out, in any case, the 3rd Defendant immediately remove the 1st Defendant’s name from its published records of 9/11/2018 as representing the APC in the Governorship election in Adamawa State, and immediately substitute therefore, the name of the plaintiff, as the Governorship candidate for Adamawa State as aforesaid.
?
The Appellant’s therefore sought for an order disqualifying the 1st Respondent from contesting for the position of the Governor of Adamawa State in the 2019 General Elections for submitting to the 3rd Respondent in his INEC Form CF001 false information in respect of his academic qualifications, and other relevant matter in the past, and period leading up to and including 2018, which false information was unknown and unverifiable before 9th November, 2018, the date of
4
publication thereof by INEC. All the 7 (seven) reliefs are as contained in the amended Writ of Summons and the amended Statement of Claim dated 6th February, 2019 and filed on 7th February, 2019 contained in pages 1-14 of the Records.
In the course of the proceedings, upon the parties having joined issues in the substantive matter at the Court below, the 1st Respondent filed a Motion on Notice dated 1st April, 2019 brought pursuant to Section 285 (13) of the 1999 Constitution as amended, Order 29 (1) (b) and (4) (a) of the Federal High Court Civil Procedure Rules 2009. The Application inter alia sought for an order of the Court below declining to exercise jurisdiction in the matter, the suit having become an academic exercise. The 1st Respondent’s application was supported by a 7 (seven) paragraph affidavit deposed to by one Alexander Ebute, a Litigation Manager in the Law firm of Chief Chris Uche, SAN & Co, the Senior Counsel to the 1st Respondent. The said application and the written address in support filed on 1st April, 2019 is contained at pages 76 ? 91 of the Records. The crux of the 1st Respondent’s application was that the
5
General Election to the office of the Governor of Adamawa State, the subject matter of the suit and which election the Appellant sought to have the 1st Respondent disqualified was held in March 2019 in which the 1st and 2nd Respondents lost. The Appellant did not participate in the said General Election. The affidavit deposed to in the 1st Respondent’s application also revealed that the substance of the Appellant’s suit in the Court below is specifically seeking an order disqualifying the 1st Respondent from contesting the position of the Governor of Adamawa State in the 2019 General Election. It was also disclosed at paragraph 5(4) of the affidavit in support of the application that the 1st Respondent having lost the election, the Appellant’s suit has become academic in the eyes of the Law as none of the orders prayed for, even if made by the Court below can inure to any person’s benefit.
The Appellant in reaction to the 1st Respondent aforementioned application filed a 4 (four) paragraph counter affidavit deposed to by one Adeleke A. Adeleke on 2nd April, 2019. At paragraph 3 of the said counter affidavit, it was stated that the suit subsists
6
notwithstanding the election and/or swearing in of a winner of the Adamawa State Gubernatorial Election. The Appellant’s Counter Affidavit and the written address are found at pages 93 ? 97 of the record.
The Court below in its ruling delivered on 15th April, 2019 held that the suit has become academic and the Court cannot exercise jurisdiction on academic issues and therefore struck out the case. The ruling of the Court below is at pages 103 – 122 of the records.
It is against the foregoing background facts that the Appellant being aggrieved filed a Notice of Appeal containing 4 (four) grounds vide a Notice of Appeal dated 15th April, 2019 and filed on 16th April, 2019 contained at pages 125 – 129 of the records.
The Appellant’s brief of argument was filed on the 5th day of May, 2019, and 4 (four) issues were distilled for determination as follows:
1. Could the lower Court rely, without more, on the Appellant/Plaintiff’s alleged admission of the 1st Respondent/Defendant/Applicant’s affidavit, to grant the reliefs sought in the objection, under review, in this appeal? (Group 4)
7
2. Whether the Supreme Court decision in Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395 applies to the objection under review in the appeal? (Ground 2)
3. Does Section 31(6) of the Electoral Act 2010, (as amended) deprive the trial Court of jurisdiction to set aside a political party primary, where subsequent elections are held, before final judgment in the action? (Ground 3)
4. Does the holding of election in this case, render the Appellant/Plaintiff?s case in the Court below, academic? (Ground 1)
It was argued that the lower Court had a duty but failed to evaluate and match the alleged un-denied averments with the reliefs sought to determine whether the affidavit was sufficient to entitle the 1st Respondent to the grant of it based on the law applicable to the case at hand. It was also argued that the lower Court manufactured and contrived untenable and irrelevant differences between the legally material facts and principles in this case and that of BOKO VS. NUNGWA (2019) 1 NWLR (PT. 1654) 395 to enable its avoidance of the application of the doctrine of stare decisis in this case.
Learned counsel for the Appellant argued that Section 31 (6) of the Electoral Act (as amended) did
8
not deprive the trial Court of the jurisdiction to set aside any political party primary, where subsequent elections are held before final judgment, and that the holding of election in this case did not render the Appellant’s case academic. This Court was urged to allow the appeal.
The 1st Respondent filed his brief on the 6th of May, 2019 and distilled a lone issue for the consideration of the Court as follows:
“Whether considering the facts and the law as placed before the Court most especially Section 31(6) of the Electoral Act, 2010 as amended, the learned trial Court was not justified in declining jurisdiction to further adjudicate on the suit of the Appellant.”
The 2nd Respondent filed its brief on the 9th of May, 2019 wherein it formulated a lone issue for determination as follows:
Whether in the circumstances of this case, the trial Court was right when it struck out the case on the ground that it has become academic (Distilled from grounds 1, 2, 3 and 4)
The 3rd Respondent filed its brief on the 9th of May, 2019 wherein it formulated 3 (three) issues for determination as follows:
1. Whether the Court below was right
9
in relying on the Appellant’s admission of the 1st Respondent’s Affidavit in support of the Motion on Notice dated and filed 1st April, 2019 in granting the reliefs sought in the Application. (Ground 4)
2. Whether the Supreme Court’s decision in Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395 is applicable to the Appellant’s suit. (Ground 2)
3. Whether having regard to the holding of Adamawa State Governorship Election and the unfavorable outcome of the said Election result to the 1st and 2nd Respondents, renders the Appellant’s suit in the Court below academic. (Ground 1)
The 5th Respondent filed its brief on the 9th of May, 2019, and it formulated 2 (two) issues for the determination of this Court as follows:
1. Whether the Court below was right when it held that it no longer had the jurisdiction to further entertain the Appellant’s suit which was brought pursuant to Section 31(5) and (6) of the Electoral Act, as the suit became academic after the result of the 2019 Governorship Election for Adamawa State was declared and a winner duly returned by the 3rd Respondent? (Grounds 1, 2 and 3)
2. Whether the Court below was right when it held
10
that since the facts contained in the affidavit in support of the 1st Respondent’s Motion on Notice were not challenged in the Appellant’s counter-affidavit, the said facts were deemed admitted by the Appellant? (Ground 4)
The Respondents have each argued that the feature that prevented the Court below from exercising its jurisdiction was that the Appellant’s suit became inexorably academic with the holding of the election, and that the Court no longer had jurisdiction to disqualify the 1st Respondent from participating in the said election as the candidate of the 2nd Respondent. That the jurisdiction conferred on the Court below by Section 31 (5) of the Electoral Act was contingent on the holding of an election.
It was also argued that the facts deposed to in the 1st Respondent’s supporting affidavit were in the public domain, and that these facts were not disputed by the Appellant and that the Court below was justified in deeming them as having been admitted.
This Court was urged to dismiss this appeal and uphold the order striking out the Appellant’s suit which was made by the Court below.
I have carefully read the briefs filed by the
11
parties, and in determining this appeal, I will adopt the simple issue formulated by the 2nd Respondent as having arisen for resolution herein and that is whether in the circumstances of this case, the trial Court was right when it struck out the case on the ground that it has become academic.
The facts of this case to my mind are very simple and straightforward, and the relevant facts can be summarized as follows:
a. By a writ of summons and accompanying amended Statement of Claim dated 18th January, 2019, the Appellant prayed the Court inter alia to disqualify the 1st Respondent for submitting false information to the 3rd Respondent concerning the educational qualifications of the 1st Respondent who was at the material time the Governor of Adamawa State and aspirant to the same office of Governor, Adamawa State for the 2019 general elections.
b. Incidentally, the 1st Respondent who was the standard bearer of the 2nd Respondent for Adamawa State in the Governorship election held on 23rd March, 2019 was unsuccessful in the said election as the candidate of the Peoples Democratic Party was duly returned as the Governor-Elect.
c. There is no
12
evidence that the 1st Respondent who contested and lost the election, and the 2nd Respondent (his political party APC) filed an election petition challenging the result of the Adamawa State Governorship election held on 23rd March, 2019 which was won by the Peoples democratic Party (PDP). At page 1 paragraph 1.2 of the 5th Respondents brief, it was stated as follows:
“…The 1st Respondent has already contested the election; he did not win; and he did not file an election petition challenging the said election, neither did the 2nd respondent file any.”
The general rule is that pre-election matters do not abate even after the holding of an election. The Courts will have jurisdiction to continue with the hearing up to finality, even where the winner has been sworn in. See generally ARDO VS. INEC (2017) LPELR – 41919 (SC); OKAFOR VS. NWAZOJIE (2015) LPELR – 40690 (CA); ODEDO VS. INEC & ORS (2008) LPELR – 2204 (SC); LAU VS. P. D. P. (2017) LPELR – 42800 (SC); MATO VS. HEMBER (2017) LPELR – 42765 (SC). This suit did not therefore “become academic the moment the gubernatorial election of Adamawa State was held and results thereof announced”, as
13
held by the learned trial judge.
In my respectful opinion, this suit became academic the moment it became clear that the 1st and 2nd Respondents lost the gubernatorial election for Adamawa State in the 2019 election, and that neither the 1st and/or 2nd Respondents have challenged the results of the said general election at any of the Election Petition Tribunals. It should be noted also that the party which won the said general election, that is the Peoples Democratic Party (PDP) is not a party to this suit. In the light of these situations, I agree that this suit is academic. It is academic because it will be of no practical utilitarian value to the Appellant even if judgment is given in his favour. I think it is now elementary that the Courts are to determine live issues. Surely, in the present case, as between the Appellant and the Respondents, there is no live issue. See generally PLATEAU STATE VS. A. G. FEDERATION (2006) 3 NWLR (PT. 967) 346; A. G. ANAMBRA VS. A. G. FEDERATION (2005)9 NWLR (PT. 931) 610; AMAECHI VS. INEC (2007) 9 NWLR (PT. 1040) 54; ACTION CONGRESS VS. INEC (2007) 18 NWLR (PT. 1060) 50; BEWAJI VS. OBASANJO (2008) 9 NWLR (PT. 1093)
14
540.
Does Section 31(6) of the Electoral Act deprive the trial Court of jurisdiction to set aside any political party primary, where subsequent elections are held before final judgment? Certainly not. The jurisdiction conferred on the trial Court under Section 31 (5) is distinct and separate from the special jurisdiction under Section 87 (9) of the Electoral Act. It is clear that the latter Section operates irrespective of Section 31 or any other provision of the Electoral Act or rules and guidelines of a political party. Therefore it is wrong for the lower Court to construe Section 31 (6) as ousting the jurisdiction of the Court once the main election has taken place. Sections 31 (1)(4) (5) and (6) of the Electoral Act are not provisions that can oust the jurisdiction of a trial Court once the main election has taken place. See NOBIS-ELENDU VS. INEC & ORS (2015) 16 NWLR (PT. 1485) 197; (2015) ALL FWLR (PT. 812) 1505.
Having adjudged this suit to be academic, this appeal ought to be struck out. It is accordingly hereby struck out. No order as to cost.
15
ADAMU JAURO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am at one with the reasoning and conclusion contained therein, to the effect that the appeal is an academic exercise.
I adopt the judgment as mine and join my brother in striking out the appeal.
Appeal struck out.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.
16
Appearances:
U. Akpan, Esq.For Appellant(s)
S. Ajala, Esq. with him, N. Oka, Esq. and S. Ukoha, Esq. for the 1st Respondent.
A.S. Yakubu, Esq. with him, A.M. Jega, Esq. and F. Abubakar, Esq. for the 2nd Respondent.
S.O. Ibrahim, Esq. with him, S.M. Danbaba, Esq. for the 3rd Respondent.
K. Onuoha, Esq. with him, M. Nworie, Esq. for the 5th Respondent.For Respondent(s)
Appearances
U. Akpan, Esq.For Appellant
AND
S. Ajala, Esq. with him, N. Oka, Esq. and S. Ukoha, Esq. for the 1st Respondent.
A.S. Yakubu, Esq. with him, A.M. Jega, Esq. and F. Abubakar, Esq. for the 2nd Respondent.
S.O. Ibrahim, Esq. with him, S.M. Danbaba, Esq. for the 3rd Respondent.
K. Onuoha, Esq. with him, M. Nworie, Esq. for the 5th Respondent.For Respondent
