AYEBO STEPHEN IGBEKELE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13778(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of September, 2019
CA/AK/288/2019
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. AYEBO STEPHEN IGBEKELE
2. UNITED PEOPLE’S CONGRESS (UPC) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER (ONDO STATE)
3. TOFOWOMO NICHOLAS OLUBUKOLA
4. PEOPLE DEMOCRATIC PARTY (PDP) Respondent(s)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE RELATED TO THE GROUNDS OF APPEAL
The cardinal principle on formulation of issues for determination is that it must be distilled from or related to the grounds of appeal. In the case of ILOKA V EDOKWE & ORS (2016) LPELR ? 41027 (CA), this Court per my learned brother Agim, JCA held that:
?It is settled law that every issue raised for determination in an appeal must derive from a ground of the appeal and that an issue for determination that is not derived from a ground of an appeal is incompetent and must be struck out.”See also the Supreme Court case ofFAJEBE & ANOR V OPANUGA (2019) LPELR ? 46348 (SC). PER MAHMOUD, J.C.A.
WHETHER OR NOT A RESPONDENT CAN FORMULATE HIS OWN ISSUES DISTINCT FROM THOSE OF THE APPELLANT
It is an elementary principle of law that a respondent can formulate his own issues distinct from those of the appellants as long as they are distilled from or relate to the grounds of appeal, he is on safe and competent ground. The apex Court put this contention to rest when it held in the case ofJOHN V STATE (2016) 11 NWLR, PT. 1523, 191 thus:
?In an appeal, a respondent has three options: to adopt the issues formulated by the appellant, to give the issues a slant in favour of his own side of the case or he may formulate his own issue but the issues so formulated MUST BE DERIVABLE FROM THE GROUNDS OF APPEAL.? (Emphasis mine).
See also the case of PATRICK V STATE (2018) LPELR 43862 (SC). PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Akure delivered on the 5th July, 2019 by Hon. Justice F. A. Olubanjo.
The appellants and the 3rd and 4th respondents contested the National Assembly Election into the Ondo Senatorial District election held on the 23rd of February, 2019. The election which was conducted by the 1st respondent was declared inconclusive due to cancellation of results of some polling units in the Ondo South Senatorial District as a result of hijacking and snatching of ballot papers. On the 9th March, 2019, the 1st respondent rescheduled a supplementary election into the affected 56 polling units of the Ondo South Senatorial District.
The appellants by an amended Originating Summons filed on the 7th March, 2019 challenged the said supplementary election scheduled for 9th March, 2019 by the 1st respondent. In it the appellants claimed as follows:-
?a. A DECLARATION that the 1st and 2nd defendants? arbitrary act of hurriedly announcing notice of election on 7th March, 2019, and conducting the purported
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supplementary or by-election on 9th March, 2019, to the House of Senate in Ondo South Senatorial District of Ondo State without publishing the mandatory statutory notices to the plaintiffs within 14 days before conducting the purported election, is unconstitutional, illegal, capricious, arbitrary and constitutes an abuse of discretion, power and violation of the combined provisions of Sections 30(3), 31(7) (8), 46(1) (a) (b) (c) of the Electoral Act 2010 as amended; Sections 15 of part 1 of the 3rd Schedule and 76 of the 1999 Constitution as amended.
b. A DECLARATION that the 1st and 2nd defendants? act of earlier declaring the entire election of 23rd February, 2019 to the House of Senate in Ondo South Senatorial District as inconclusive in one breath, and later turning summersault to conduct supplementary or by-election on 9th March, 2019 in isolated locations in the same Ondo South Senatorial Districts in another breath, with self-help, defiance to the pendency of this suit and without conducting a fresh election throughout the entire Ondo South Senatorial District to cure the inconclusiveness of the entire election of 23rd February, 2019 thereby
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using constitutional powers to achieve unconstitutional result, is unconstitutional, illegal, capricious, arbitrary and constitutes an abuse of discretion, power and violation of Sections 26(5), of the Electoral Act 2010 as amended; Clause 37(b) of the Regulations and Guidelines for the Conduct of Elections, 2019; Sections 15 of Part 1 of the 3rd Schedule, and 76 of the 1999 Constitution as amended.
c. AN ORDER setting aside the purported supplementary or by-election hurriedly announced on 7th March, 2019 and conducted on 9th March, 2019, to the House of Senate in Ondo South Senatorial District of Ondo State, with self-help, defiance to the pendency of this suit and without publishing the mandatory statutory notices to the plaintiffs within 14 days before the election, being contrary to the combined provisions of Sections 26(5), 30(3), 31(7)(8), 46(1)(a)(b)(c) of the Electoral Act, 2010 as amended; Clause 37(b) of Regulations and Guidelines for the Conduct of Elections 2019 and Sections 15 of part 1 to the 3rd Schedule and, 76 of the 1999 Constitution as amended.
d. AN ORDER OF MANDATORY INJUNCTION compelling and directing the 1st and 2nd defendants,
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their agents, privies, servants and officers to conduct fresh election to the House of Senate throughout Ondo South Senatorial Districts of Ondo State to cure the inconclusiveness of the purported election of 23rd February, 2019 and the purported supplementary or by-election of 9th March, 2019 conducted with self-help, defiance to the pendency of this suit and without publishing the mandatory statutory notices to the plaintiffs within 14 days before the election.
The 1st and 2nd respondents filed a notice of preliminary objection challenging the jurisdiction of the lower trial Court to entertain the matter. The 3rd and 4th Respondents on their part in their counter affidavit/written address in support of their opposition to the originating summons also raised the issue of jurisdiction. They alleged that the trial Court lacked jurisdiction to entertain the claim of the appellants.
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It is in respect of these objections that the learned trial judge gave his considered ruling on the 5th July, 2019 declining jurisdiction. His decision was premised on his finding that the action or claim of the appellants related to a post election matter to which the
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Elections Petitions Tribunal has exclusive jurisdiction.
The appellants, dissatisfied with this ruling approached this Court by their amended notice of appeal filed on the 15/08/2019 but deemed on the 22/08/2019. In it, the appellants filed seven grounds of appeal as follows:
1) The lower Court erred in law and thereby came to perverse decision by misconstruing the supplementary election of 9th March, 2019 as addendum to and/or balance of the inconclusive election of 23rd February, 2019 and relying on the misinterpretation to adjudging appellants? case as post election matters, when it held thus:
?A supplementary election presupposes that there is an existence of an election and the supplementary election is held as an addendum to the existing election to enable the electoral umpire declare a winner in the entire process. Therefore a supplementary election is the balance of an election where for one reason or the other, the election could not take place as scheduled in a unit or ward. It does not qualify as a fresh election. It therefore follows that a suit such as this which complains about the decision of the electoral umpire to
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declare the first election of 23rd February, 2019 inconclusive and then also complains about the decision to hold supplementary election of 9th March, 2019 is not a pre-election case, but a post-election suit.?
2) The lower Court erred in law and thereby came to preserve decision by holding thus:
?In this suit, plaintiffs are challenging the conduct of the election which took place on 23rd February, 2019 as well as the conduct of the supplementary election of 9th March, 2019. Only the Election Tribunal is vested with jurisdiction to entertain issues relating to the conduct of election. See OPIA VS. INEC (2014) LPELR 22185 (SC); OLOFU & ORS. VS ITODO & ORS, (2010) LPELR 2588 (SC). This Court lacks jurisdiction to adjudicate on this suit. I so hold.?
3) The lower erred in law and acted in breach of the appellants? rights to fair hearing by relying on matters and parties excluded from the amended originating summons in holding that appellants? suit amounted to challenging the election won by 3rd -4th respondents, and thereby came to perverse decision.
4) The lower Court misdirected itself in law and also
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contradicted itself when it held at one breath that it had no jurisdiction to hear the case and later held at another breath that appellant participated in the supplementary elections through Exhibit C attached to the 3rd ? 4th respondents? counter affidavit dated 3/5/2019, thereby delving into the merit of the case and came to perverse decision.
5) The lower Court erred in law by holding that appellants? case is a post-election suit when there was no evidence of conclusive election on 23/2/2019 before it and thereby came to perverse decision.
6) The lower Court erred in law by misconceiving the extent of its jurisdiction and relying on the misconception to decline jurisdiction in hearing and determining appellants? declaratory action seeking for declaratory judgment.
7) The lower Court erred in law by delivering the ruling in respect of the preliminary objections of the 1st and 2nd respondents against the suit without suspending and delivering the ruling together with the final judgment in the substantive suit, and thereby came to null and void decision.
In prosecuting the appeal, the appellants filed their
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brief of argument on the 15/08/2019 which was also deemed on the 22/08/2019. In arguing the appeal, MR Segun Ogodo of counsel for the appellants adopted the brief as their legal arguments in support of the appeal. In it, he raised three issues for determination as follows:-
1. Whether the lower Court was right in declining jurisdiction to entertain appellants? case based on the lower Court?s interpretation of the supplementary election of 9th March, 2019 as addendum and/or balance of the election of 23rd February, 2019 in adjudging appellants? case as a post-election suit at one breath and assuming jurisdiction by delving into the merit of the case at another breath – Grounds 1, 4 and 5.
2. Whether or not the lower Court was right by misconceiving the scope of its jurisdiction and relying on the misconception in refusing to hear and determine the appellants? declaratory and consequential reliefs sought in the amended originating summons ? Grounds 2, 3 and 6.
3. Whether the decision of the lower Court was a nullity having failed to deliver its ruling at the final
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stage of the judgment in compliance with the mandatory provisions of Section 285(8) of the 1999 Constitution as amended by (Fourth Alteration, No 21) Act, 2017 ? Ground 7.
MR. Ogodo also filed a reply brief to the 1st and 2nd respondents? brief of argument on the 30/08/2019. He filed a reply brief of argument incorporating a notice of preliminary objection to the 3rd and 4th Respondents? brief also on the 30/08/2019. Counsel adopted both as part of his legal arguments in support of this appeal.
On issue (1), the summary of MR. Ogodo?s submission is that there was no evidence of any concluded election as required by law before the lower Court and there was no evidence justifying the conduct of a supplementary election before the lower Court. That the lower Court was therefore in error when it held that the appellants? case is a challenge to the conduct of the election of 23rd February, 2019 and the supplementary election of 9th March, 2019 before declaring the appellants? case as a post election suit that cannot be entertained by the Court. Counsel submitted that the misapprehension of the appellants? case by
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the lower Court has inexorably prompted its misapplication of the supplementary election of 09/03/2019 as a balance or continuation of the inconclusive election. That the purported supplementary election of 9th March, 2019 cannot be rationally, legally and lawfully regarded as an addendum and/or balance or continuation of the inconclusive election of 23rd February, 2019 as wrongly concluded and decided by the lower Court. That the inevitable consequence of the inconclusive election of 23/03/2019 is to order a fresh election to cure the inconclusiveness of the entire election throughout the Ondo South Senatorial District but not a supplementary election. Counsel urged the Court to resolve this issue in favour of the appellants.
On issue (2) MR Ogodo submitted that it was wrong for the lower Court to refuse to hear and determine the appellants? claim as doing so amounts to abdicating its constitutional responsibility and duty to the appellants under SECTION 251(1) (q) and (r) of the 1999 Constitution. That by SECTION 6(3)(5) (C) of the 1999 Constitution the Federal High Court is a superior Court of record. That its jurisdiction is presumed until the
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contrary is proved. That this presumption was never rebutted by the 1st and 2nd respondents and that there was no ex facie evidence of lack of jurisdiction on the amended originating summons to warrant the lower court in erroneously declining jurisdiction to hear and determine the appellants? case. That the lower Court misconceived the scope of its jurisdiction within the ambit of the Electoral Act, 2010, its regulations and guidelines, the Rules of Court and the 1999 Constitution when it declined jurisdiction to entertain the appellants? declaratory action. Counsel urged the Court to resolve this issue in favour of the appellants.
On the third and final issue, MR Ogodo submitted that by SECTION 285(8) of the 1999 Constitution as amended by (Fourth Alteration No 21) Act, 2017 the trial Court was enjoined in this case which is a pre-election matter to suspend ruling and deliver same at final judgment. That the ruling of the lower Court having contravened the provisions of the constitution is completely a nullity. He urged the Court to also resolve this issue in favour of the appellants.
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The 1st and 2nd Respondents filed their brief on the
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28/08/2019. MR A. F. Lawal of counsel for the 1st and 2nd respondents adopted the said brief in support of their opposition to the appeal. In it they adopted the three issues formulated by the appellant for determination. MR Lawal in arguing issues (1) & (2) together submitted that the 1st respondent had already conducted the Presidential/National Assembly election on the 23rd February, 2019 and the election was inconclusive due to the cancellation of the results of fifty-six polling units in the Ondo South Senatorial District as a result of hijacking and snatching of ballot paper/election materials. That by virtue of Sections 133(1) and 138 (1) (b) of the ELECTORAL ACT 2010, the appellants ought to have filed their petition at the Election Petition Tribunal and not at the Federal High Court as they did. That a supplementary election is to conclude an already conducted, election so that the results of the supplementary election would be added to the already existing results. MR Lawal submitted further that this position is different from that envisaged by SECTION 26(1) of the Electoral Act, 2010 where the election is postponed as a result of a natural
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disaster or some other emergencies and a fresh election has to be conducted as opposed to a supplementary election. Counsel urged the Court to resolve these two issues in favour of the respondents. He further submitted that the conduct of the supplementary election by the 1st respondent was in line with Article 37(b) of the Regulation and Guidelines for the conduct of Elections in the States. That therefore the amended originating summons by the appellants aimed at stopping the supplementary election of 9th March, 2019 was a clear complaint relating to the senatorial election into the Ondo South Senatorial District seat that was conducted by INEC on the 23rd February, 2019 in exercise of its powers under the 1999 Constitution and the Electoral Act, 2010. MR Lawal submitted that by virtue of SECTION 285(14) of the 1999 Constitution (4th Alteration) Act, 2017, a pre-election matter means:-
a) An aspirant who complains that any matter that affects regulating the conduct of primaries of political parties.
b) Challenging the action, decisions/or activities of INEC in respect of selection or nomination of candidates and
c) A political
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party challenging the actions, decisions or activities of INEC disqualifying its candidates from participating in an election.
On the application of SECTION 285(8) of the 1999 Constitution as amended (4th Alteration) to the ruling of the trial Court, MR Lawal submitted that the Section only affects the jurisdiction of the Court in a pre-election and not a post election matter which this case is as the trial Court is clearly without jurisdiction in the matter. Counsel urged the Court to resolve this issue in favour of the respondents and dismiss this appeal for lacking in merit.
The 3rd and 4th respondents filed their brief of argument also on the 28/08/2019. In arguing the appeal, MR I. I. Bewaji of counsel for the 3rd & 4th respondents adopted same as their legal arguments in opposition to the appeal. In it they raised two issues for determination:
1) Whether the trial Court has jurisdiction to entertain a post election matter or conduct of election (Grounds 1, 2, 4, 5 and 6 of the Notice of Appeal).
2) Whether the trial Court can decide the issue of jurisdiction first without going into the merit of
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the substantive matter (Ground 7 of the Notice of Appeal)
On issue (1) MR Bewaji submitted that the supplementary election ordered by the 1st respondent was done within the provisions of SECTION 37(B) of the Regulations/Guidelines for the conduct of the 2019 election and SECTIONS 26 and 53 of the Electoral Act. That whenever a supplementary election is ordered by virtue of the said section(s) it presupposes that there was a previous election which was not conclusive. That a supplementary election is premised on an existing election yet to be declared because there were polling units or wards where elections were cancelled for given reasons or not held at all and a supplementary election is required to conclude the election. MR Bewaji contended that this balance of the previous election is never and cannot equate with a fresh or bye election. That the word supplementary means that there is in existence an election and the supplementary is simply a balance or an addendum to the existing election which will enable the 1st defendant to declare a winner of the election. That a supplementary election is a post-election and not a pre-election matter and
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therefore the proper venue to ventilate grievances therefrom is the Election Tribunal and not the High Court (State or Federal). MR Bewaji further submitted that a combined reading of Articles 33(a) and 37(b) of the INEC Regulation and Guidelines will reveal that the requirement of notice is inapplicable to a supplementary election. Counsel urged the Court to resolve this issue in favour of the respondents.
On issue (2), MR Bewaji submitted that the trial Court was in substantial or full compliance with SECTION 285(8) of the 1999 Constitution as amended (4th alteration). That the ruling of the Court finally disposes or determined the right of the parties as to the disputed issue and so it is a final order and not an interlocutory one. Counsel urged the Court to resolve this issue in favour of the respondents and to dismiss the appeal with N1,000,000 costs for lacking in merit.
I do not find it necessary at this point and in this judgment to summarise the reply brief of the appellants to the 1st and 2nd respondents? brief and the reply brief incorporating a notice of preliminary objection to the 3rd and 4th respondents? brief of argument.
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I would however refer to them in the course of this judgment as and when necessary.
However, having incorporated a preliminary objection in their reply brief to the 3rd and 4th respondents brief, it is imperative to first deal with such a preliminary objection. This is especially so as it may determine whether or not the 3rd and 4th respondents have a competent brief before the Court.
The appellants? objection to the 3rd and 4th respondents? brief of argument is that the issues raised therein are not only radically different from those raised by the appellants but do not relate to the grounds of appeal. The 3rd & 4th respondents responded to this preliminary objection in their process filed on the 06/09/2019. In it they submitted that their issues as raised are related to the appellants? grounds of appeal as contained in their amended notice of appeal filed by the appellants on the 15/08/2019 which was deemed as properly filed on the 22/08/2019. For the avoidance of doubt the two issues raised by the 3rd and 4th respondents are:-
1) Whether the trial Court (Federal High Court) had jurisdiction to entertain
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a post election matter or conduct of election? Grounds 1, 2, 4, 5 and 6 of the Notice of Appeal)
2) Whether the trial Court can decide the issue of jurisdiction first without going into the merit of the substantive matter? (Ground 7 of the Notice of Appeal)
I have considered the submissions of both counsel as soberly as possible in the circumstances. I find it unnecessary to reproduce the seven grounds of appeal upon which this appeal was premised. Suffice it to say that I do not see any material difference between the appellants? issue (1) and that of the 3rd and 4th respondents. For whether the lower Court was right in declining jurisdiction as framed by the appellants or whether the trial Court has jurisdiction to entertain a post election matter is only as different to me as one pound is from 100 pence! In the same vein, the appellants? issue (3) of whether the decision of the lower court is a nullity having ?failed to deliver its ruling at the final stage of the judgment in compliance with the mandatory provisions of SECTION 285(8) of the 1999 Constitution as amended by (Fourth alteration No. 21) Act,2017
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2017? is in no way more related to ground 7 than issue (2) of the 3rd and 4th Respondents. This is whether ?the trial Court can decide the issue of jurisdiction first without going into the merit of the substantive matter
For the avoidance of doubt, I reproduce ground 7 of the grounds of appeal:-
?7. The lower Court erred in law by delivering the ruling in respect of the preliminary objections of the 1st and 2nd respondents against the suit without suspending and delivering the ruling together with the final judgment in the substantive suit, and thereby came to null and void decision.?
The cardinal principle on formulation of issues for determination is that it must be distilled from or related to the grounds of appeal. In the case of ILOKA V EDOKWE & ORS (2016) LPELR ? 41027 (CA), this Court per my learned brother Agim, JCA held that:
?It is settled law that every issue raised for determination in an appeal must derive from a ground of the appeal and that an issue for determination that is not derived from a ground of an appeal is incompetent and must be struck out.”
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See also the Supreme Court case ofFAJEBE & ANOR V OPANUGA (2019) LPELR ? 46348 (SC).
There is no iota of doubt in my mind that the second issue raised by the 3rd and 4th respondents is predicated on ground seven of the appellants? grounds of appeal. To say otherwise is to deny the obvious. I hold therefore that the learned counsel is grossly misconceived in his contention that the two issues raised by the 3rd and 4th respondents are not distilled from the grounds of appeal. The two issues relate to the grounds of appeal. It is significant that the 3rd and 4th respondents have specified that their issue (1) is derived from grounds 1, 2, 4, 5 and 6 of the Notice of Appeal while issue (2) is derived from ground 7. It is an elementary principle of law that a respondent can formulate his own issues distinct from those of the appellants as long as they are distilled from or relate to the grounds of appeal, he is on safe and competent ground. The apex Court put this contention to rest when it held in the case ofJOHN V STATE (2016) 11 NWLR, PT. 1523, 191 thus:
?In an appeal, a respondent has three options: to adopt the issues formulated by the
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appellant, to give the issues a slant in favour of his own side of the case or he may formulate his own issue but the issues so formulated MUST BE DERIVABLE FROM THE GROUNDS OF APPEAL.? (Emphasis mine).
See also the case of PATRICK V STATE (2018) LPELR 43862 (SC). The important consideration as can be deciphered from these authorities is that the respondent is free to recast the issues raised by the appellant to give himself a favourable slant as long as he does not depart from the complaint raised by the ground(s) of appeal. I find this to be the situation in the instant case. The issues formulated by the 3rd and 4th respondents may have been recast to give them a more favourable slant but they have not in any way departed from the complaint in the appellants? grounds of appeal. I hold that the preliminary objection by the appellants to the brief of the 3rd and 4th respondents fail and it is accordingly discountenanced.
In this appeal, I think that the singular most important issue for resolution is whether or not the complaint of the appellants in the lower Court is a pre-election or post-election matter and whether the trial Court
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rightly declined jurisdiction? An answer to this question will no doubt resolve all the related ancillary issues. What then is a pre-election matter? Before answering this question, it is pertinent to reiterate the background to this case. There was a general election on the 23rd of February, 2019 into the National Assembly alongside that of the Presidency. In Ondo State the election into the Ondo South Senatorial District was inconclusive because election in 56 polling units were cancelled same having been marred with hijacking and snatching of ballot papers and election materials. A supplementary election was scheduled and took place on the 9th of March, 2019. It was in challenge to this supplementary election that the appellants filed their originating summons on the 7th of March, 2019 contending the validity of the supplementary election on the grounds that the 1st respondent failed to give them the statutory notice of two weeks prior to the election. The challenge of the appellants was premised on two grounds as I understand them. Firstly that the 1st respondent by failing to give the 14 days notice pursuant to SECTION 46 of the Electoral Act 2010 has
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disenfranchised the appellants and rendered the election invalid. Secondly the appellants contended that the election to the Ondo South Senatorial District having been declared inconclusive by the 1st respondent, what purportedly took place on the 9th March, 2019 was a fresh election and their originating summons filed on the 7th of March was a pre-election matter. That this means that the trial Court had jurisdiction and wrongly declined jurisdiction.
I have carefully gone through the records including the amended originating summons with the supporting affidavit and the accompanying written address contained at pages 172-218 of the printed records. It is clear from issue (2) as raised by the plaintiffs/appellants in the Court below that they are completely misconceived as to what the 1st respondent did on the 9th of March, 2019. This misconception led to this unjustified waste of judicial time since March, 2019. For a better appreciation of the confusion of the appellants I reproduce issue 2:
?Whether in the exercise of power of conducting election, the 1st and 2nd defendants who had earlier declared the entire election to the House of Senate
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in Ondo South Senatorial District of Ondo State on 23rd February, 2019, as inconclusive in one breath, can later turn summersault to announce on 7th March, 2019, and conduct the purported supplementary or by-election on 9th March, 2019, in isolated location of the same Ondo South Senatorial District in another breath, without conducting a fresh election throughout the entire Ondo South Senatorial District to cure the inconclusive election of 23rd February, 2019 thereby using constitutional power to achieve unconstitutional result in an unconstitutional, illegal, capricious, arbitrary manner that constitutes an abuse of discretion and power, contrary to the provisions of Section 26(5) of the Electoral Act, 2010, as amended; Clause 37 (b) of Regulations and Guidelines for the Conduct of Elections; Sections 15 of part 1 to the 3rd Schedule and Section 76 of the 1999 Constitution as amended.
It is clear from this formulated issue that the appellants do not know the meaning and impact of ?inconclusive? and ?supplementary? election or they are being outrightly mischievous. Sadly, the Electoral Act in its interpretation section does
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not define either ?inconclusive? or ?supplementary? election. The BLACK?S LAW DICTIONARY, 9TH EDITION PAGE 833 defines ?inconclusive? as ?not leading to a conclusion or definite result.? The OXFORD AMERICAN WRITER?S THESAIRUS has a more comprehensive definition: ?Indecisive, unresolved, unproved, unsettled, still open to question/doubt, debatable, unconfirmed, moot, vague, ambiguous, informal up in the air, left hanging.? ?Supplementary? on the other hand is defined by the NEW OXFORD AMERICAN DICTIONARY as ?completing or enhancing something.?
All the parties in this matter are in accord that there was a general election to the Presidential/National Assembly seats on the 23/02/2019. That the results of the election in 53 polling units in the Ondo South Senatorial District that election were cancelled in line with SECTION 26 of the Electoral Act, 2010 and the election declared inconclusive in line with Article 37 (b) of INEC Guidelines for the 2019 General Elections. A supplementary election was therefore ordered and conducted on the 9th March, 2019 in the
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affected 56 polling units in order to conclude the election and announce or declare a winner. There is no evidence from the appellants that in the Ondo South Senatorial District there were only 56 polling units in the electoral districts so as to infer that election did not take place in the entire senatorial district. Even if there is such evidence and the particular election was cancelled as a result of over voting, violence etc, the postponed election cannot be said to be a fresh election for the purpose of a pre-election matter after the conduct of a general election on the 23rd of February 2019. By Article 37 of INEC Guideline for 2019 General Election, the returning officer is entitled to conduct a supplementary election in a senatorial district where the election was cancelled or not held in line with Sections 26 and 53 of the Electoral Act, 2010. The article provides that the returning officer shall not make a declaration until polls have taken place in the affected areas and the results recorded for declaration and return. This is a further evidence that a supplementary election as a result of an inconclusive election is not a fresh election requiring
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14 days notice within the provision of SECTION 46 of the Electoral Act as contend by the learned counsel to the appellant. Assuming without conceding that it was indeed the whole of the Ondo South Senatorial District election and not results of some polling units that were cancelled, the appellants would still not be able to sustain their argument that this is a pre-election matter. This is because the apex Court seems to have settled this question when it provided a guide for the Courts to follow thus:
?That if the originating summons/process was filed prior to the conduct of the general election, it remains a pre-election issue which can be challenged up to the Supreme Court. But if filed after a general election only the election proper is to be questioned and in that case the exclusive jurisdiction to do so lies with the Election Tribunal. See the cases of OHWAVBORUA & ORS V PDP (2013) LPELR 21026 (CA) and SALIM V CPC (2013) 6 NWLR, PT 1351, 501 AT 523-524 PARAS E-B.
In the case of OLUBUKOLA & ANOR V A. G OF LAGOS STATE & ORS (2016) LPELR ? 41451 (CA), this Court held that elections can only be invalidated by a Tribunal
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set up to determine post election issues.
It is clear to me and based on these authorities, the nature of the appellants? claim and the fact that this matter was predicated on a supplementary election following a general election that this is not a pre-election matter. I find that the lower Court properly declined jurisdiction in this matter. This position is fortified by the provisions of SECTION 285(14) of the 1999 Constitution (Fourth Alteration No 21) Act, 2017 which defines a ?pre-election? matter as follows:
(a) ?An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of
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the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) A political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.?
This section confirms the position that a pre-election matter is any matter which relates to the selection, nomination of candidates and participation in an election or time table for an election, registration of voters and other activities of the commission in respect of preparation for an election. This Court gave a judicial
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interpretation to this expression ?pre-election matter? in the case of IBRAHIM V UMAR (2013) LPELR ? 22805 (CA) when it defined the term to mean ?action, conduct or any event taking place or occurring before the election.? All of the reliefs sought by the appellants in the amended originating summons contained at pages 195-196 of the printed records loudly, unquestionably and unarguable challenge the supplementary election conducted by the 1st respondent on the 9th March, 2019. This to me seals any contention or pretension of making this matter a pre-election matter for which the trial lower Court ought to have assumed jurisdiction. It is no doubt a matter whose jurisdiction is competently and statutorily vested in the Election Petition Tribunal. I so hold.
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The interpretative stretch of the law given by the appellants in this matter is greatly troubling and disturbing. It is difficult to ascertain whether this is due to lack of adequate grasp of election petition procedure, mischief or some other inapplicable reasons. Whatever the explanation is, it is gravely worrisome. This is more so that we embarked on this democratic
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process over two decades ago and all the electoral jurisprudence developed over this period as conflicting as some of them may be has not made an impact on litigants and their counsel! I am particularly dismayed that the term ?inconclusive election? which became so notorious in the last general election had its meaning and effect lost on the appellants and his counsel I say no more.
In sum, I hold that this appeal fails. It is hereby dismissed. The well considered judgment of the trial lower Court is hereby affirmed.
I assess costs at N300,000 in favour of the 3rd and 4th respondents against the appellants. No order as to costs in favour of the 1st and 2nd respondents as none was asked for. Even though costs follow events but it is settled that the Court not being a father Christmas should not grant what was not asked. They are to bear their own costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment written by my lord Patricia Ajuma Mahmound, JCA, in this matter and agree that the appeal should fail.
The Record of Appeal shows that the Appellant’s grievance was
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about the conduct of the supplementary election that was conducted by the Independent National Election Commission (the 1st Respondent) in respect of the General Election earlier held on February, 23rd 2019 into the Ondo South Senatorial District, which the commission had declared inconclusive.
A Supplementary Election was conducted in some wards subsequently. The Appellant had sought for a declaration that the said supplementary election be set aside and a fresh election held.
It is obvious that INEC had accomplished its duty in the conduct of the election which included the main election and a supplementary or bye – election which it has powers under the Electoral Act to conduct.
The INEC had no power to re-conduct an election which had not been vacated by an order of the Court. Even if the result of the supplementary election was not included, it could be raised at the Tribunal. In this circumstance, the only Court with jurisdiction is the Election Petitions Tribunal, the Election having been conducted.
Whether it was conducted contrary to the Electoral Act or Guidelines governing the conduct of the Elections,
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was not within the jurisdiction of the trial Federal High Court to determine at the stage. That Court had only one duty and that was, to strike out the suit for want of jurisdiction. It was right in so doing.
I should point out that whatever infractions by the INEC at or pursuant the conduct of the supplementary election of 9th March, 2019 that had been conducted, it can only be ventilated at the Tribunal, as a post election matter. It had completed the entire exercise by that election.
The Appellant, if he had filed his suit at the Federal High Court as a pre election matter may pursue same even up to the Supreme Court and even after the conclusion of the Election. Herein, the reliefs sought related to the challenge to the conduct of the election already held and concluded.?
It is also instructive to note that the Appellant also challenges the conduct of the trial judge in not reserving his Ruling on the objection to jurisdiction till the final stage of his judgment as provided by Section 285 (8) of the 1999 Constitution as Amended by the Fourth Alteration NO.1 Act, 2017. This is an acknowledgement, concession and admission that it was indeed an
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Election Petition that he was dealing with.
In any case, the Court so found in line with the Appellant’s reason for this head of challenge.
My learned brother, Patricia A. Mahmoud, JCA had properly analyzed the provisions of the Guideline for the conduct of Elections and rightly held that the General Elections having been held, the supplementary elections ordered pursuant to the law, where the need had arisen, did not require the 14 days notice complained of nor did it convert the complaint into a pre – election matter within the trial Court’s jurisdiction.
The decisions of the Supreme Court and this Court clearly set out at page 30 of the lead judgment are to the effect that the suit being filed after the election proper had taken place makes the suit a post election matter.
Is the decision in Ibrahim v. Umar (2013) LPELR 22805 not clear enough that this suit complained of actions, conduct and event that took place after the election and not a pre – election, therefore
I affirm the decision of the trial Federal High Court, in declining jurisdiction and striking out the suit for want of jurisdiction.
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This Court is, by the principle of stare decisis, bound by the Apex Court’s position and our earlier stand which is not in contravention of the Apex Court. See Suleiman v. COP Plateau State (2008) 8 NWLR (pt 1089) 298. The Appeal is accordingly dismissed by me. I also abide by the consequential order relating to costs as entered in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA. is a reflection of the discussions we had and unanimously agreed on. I am in firm concurrence with the reasoning and conclusion arrived therein.
The Appellants in this appeal relied on the Amended Appellants’ Notice of Appeal containing seven (7) Grounds of Appeal filed on the 8th day of July, 2019 which by the leave of this Court, it was deemed properly filed and served on the 22nd day of July, 2019.
?
The issues raised by the Appellants in arguing the appeal are three (3) and contained in their brief of argument, paragraphs 3.01-3.03 at pages 4-5 therein. My learned brother adequately dealt with the issues in the lead judgment and resolved same in
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accordance with the relevant laws.
The long and short argument in this appeal are predicated on supplementary election conducted by the 1st Respondent (INEC) on the 9th day of March, 2019 haven declared the general election conducted on 23rd February, 2019 inconclusive due to cancellation of some Polling Units in the Ondo South Senatorial District as a result of hijacking and snatching of ballot papers and election materials. The affected Units were fifty six (56) in number which the 1st and 2nd Respondents rescheduled a supplementary election and conducted same on the 9th of March, 2019.
The learned counsel made a heavy weather in his frantic effort to show that the Supplementary election conducted by the 1st and 2nd Respondents on the 9th March, 2019 was not in compliance with the provisions of Sections 26 and 53 of the Electoral Act, 2010 (as amended) and also Clause 37 of the Regulations and Guidelines for conduct of Elections, 2019. He is of the view that what the said provisions envisaged is ‘fresh election’ and not ‘supplementary election’. He therefore submitted that the 1st and 2nd Respondents are estopped from approbating and
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reprobating on the same issue of “conclusive” or “inconclusive” election, contrary to Section 169 of the Evidence Act, 2011 and the decisions in CHIEF NICOLAS FRANK OPIGO V. VAN KUMA YUKWE (1997) 6 NWLR (PT. 509) 428; MACFOY V. UAC (1962) 152; ALAKI V. SHAAHO (1999) NWLR (PT. 595) 287 AT 398; IGODO V. OWULO (1999) 5 NWLR (PT. 601) 70 AT 77 and AONDOAKAA V. AJO (1999) 5 NWLR (PT. 602) 206 AT 225.
Counsel further submitted that the purported election of 9th March, 2019 cannot be rationally, legally and lawfully regarded as addendum and/or balance or continuation of the bungled and inconclusive election of 23rd of February, 2019, as wrongly concluded and decided by the lower Court. That the inevitable consequence of the inconclusive election of 23rd of February, 2019 is to order fresh election to cure the inconclusiveness of the entire election throughout the Ondo South Senatorial District and not supplementary election.
I wondered who is blowing hot and cold and/or approbating and reprobating in the manner of this case among the parties. The Appellants who queried the reasoning and conclusion of the learned trial Judge of the Federal High Court, Akure
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Division on his findings about the status of the action before him, turned ground to argue that the inevitable consequence of the inconclusive election of 23rd of February, 2019 is to order fresh election to cure the inconclusiveness of the entire election throughout the Ondo South Senatorial District.
The resultant effect of this argument coming from both sides of the mouth of the learned Appellants’ counsel, is that there was an election on the 23rd of February, 2019 in the said constituency which was declared inconclusive and supplementary election was scheduled for 9th of March, 2019 which was conducted at the affected fifty six (56) Polling Units of the Constituency. Infact, no legal minded person or to even say it lesser, no right thinking person would consider such a situation as pre-election issue and/or matter. Rather, sensibility of reasoning and rational thinking will unveil to a person that the matter is clearly and unambiguously a post-election one, no more no less. What more? The heavy weather made by the learned counsel to the Appellants on Sections 26 and 53 of the Electoral Act, 2010 and also clause 37 of the Regulations and
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Guidelines for conduct of elections, 2019 is of no moment. Moreso that there is nothing on record, particularly the affidavit evidence in support of the Originating Summons filed by the Appellants as Plaintiffs before the Court below in proof of the action as Pre-Election matter within the powers and competence of the Federal High Court as enshrined in Section 251 of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
It is trite that jurisdiction, simply put, is the right of the Court to hear and determine the dispute between the parties. See AJOMALE V. YADUAT (1991) 5 SCNJ 172 AT 176; ACTION CONGRESS V. INEC (2007) 18 NWLR (PT. 1065) 50; INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 45 AT 588 PARAS. F-H and MOBIL PROD. (NIG) LTD V. MONOKPO (2003) 18 NWLR (PT. 852) 346 AT 434-435 per Tobi, JSC where he said:
“Jurisdiction, being a fore-runner of Judicial process cannot by acquiescence, collusion, compromise or as in this case, waver confer jurisdiction on a Court that lacks it. Parties do not have the legal right to donate jurisdiction on a matter that it lacks it.”
See also the provisions of Sections 133 and 138 of the Electoral Act, 2010 (as amended). ?
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To my mind, whatever nomenclature used, as in this case ‘supplementary’ once it does not resulted in miscarriage of justice in the circumstances of the case, it will not amount to misnomer. The end result was to cure the inconclusiveness of the general election conducted on the 23rd day of February, 2019 as it affected the cancelled fifty six Polling Units of Ondo South Senatorial District.
I therefore see nothing wrong with the findings of the Court below stated somewhere above and the learned trial Judge’s decline to exercise jurisdiction on a Post Election Matter reserved for the jurisdiction of Election Petition Tribunal by virtue of the provisions of the 1999 Constitution and the Electoral Act, 2010 (as amended).
In the light of aforesaid and fullest determination of the issues raised in this appeal in the lead judgment, I found the appeal bereft of merit and dismiss same. The decision of the Court below is also affirm by me and abide by the consequential orders of the lead judgment.
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Appearances:
Mr. Segun OgodoFor Appellant(s)
Mr. A. F. Lawal for 1st & 2nd Respondents.
Mr. I.I. Bewaji for 3rd & 4th RespondentsFor Respondent(s)
Appearances
Mr. Segun OgodoFor Appellant
AND
Mr. A. F. Lawal for 1st & 2nd Respondents.
Mr. I.I. Bewaji for 3rd & 4th RespondentsFor Respondent