BELLO HARUNA v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13346(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/J/131/2019
RATIO
PRE-ELECTION MATTERS: WHEN DOES A PRE-ELECTION MATTER DIE?
Fortunately, this provision, which was originally Section 141 of the Electoral Act 2010 until “We the People of the Federal Republic of Nigeria? through their representatives both at State and National Assemblies (concurrence of both Assemblies is mandatory to effect amendment of the Nigerian Constitution) amended the 1999 Constitution on 7th June 2018 to elevate it to the Constitutional provision that it presently is, has been interpreted by the Supreme Court vis?a-vis Amaechi v. INEC supra in Congress for Progressive Change (CPC) & Anor v. Ombugadu & Anor (2013) LPELR-21007 (SC), (2013) 18 NWLR (PT 1385) 66 (SC), incidentally a pre-election matter too like the present one. In that case, this Court by its lead judgment of Uchechukwu Onyemenam, J.C.A., in overturning the judgment of the trial Federal High Court ruled among others that ?Again by virtue of Section 141 of the Act [Electoral Act 2010), the Court cannot make the consequential order made by the Court below? namely an order that an aspirant who did not participate in the general election be issued certificate of return as the person duly elected. In upholding that decision the apex Court in its lead judgment by Ngwuta, J.S.C. had this to say:
The second arm of the issue is the propriety vel non of the consequential order made by the trial Court in view of Section 141 of the Electoral Act (supra). The consequential order reads:
It is hereby ordered that the 1st defendant returns the 2nd plaintiff as the winner of the April 9, 2011 National Assembly Election into the House of Representatives of the Federal Republic of Nigeria representing Akwanga/Wamba/Nasarawa-Egon Federal Constituency?
Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:
An election tribunal or Court shall not declare any person a winner at an election in which such a person did not fully participate in all stages of the election.
By the above provision, the National Assembly has set aside the decision of this Court in Amaechi v. INEC (2008) 5 NWLR (PT 1080) page 227. Contrary to the decision of this Court in Amaechi?s case, the implication of Section 141 of the Electoral Act 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him.
In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election starting from nomination to the actual voting.PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
BELLO HARUNA Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. SAIDU ABDU ISAH Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): Appellant who is actually a cross-appellant (in view of Appeal No. CA/J/130/2019 of 3rd respondent) contested along with 3rd Respondent and three others 1st Respondents Party Primaries of 5th October 2018 for the right to contest on 1st Respondents platform the General Elections into the Bauchi State House of Assembly to represent Darazo/Sade State Constituency which was then scheduled by 2nd respondent, INEC, for some time early this year 2019.
Appellant, according to the originating summons which he later filed, won that primary election with 4842 votes and was declared winner by 1st respondent. 3rd Respondent came third with 1,135 votes. Somehow, 1st Respondent (APC) instead of forwarding appellants name to INEC as its candidate for the said 2019 General Election rather forwarded the name of the 3rd Respondent. Jolted by that turn of events, appellant filed the originating summons earlier alluded to in the Federal High Court Bauchi Division against the 1st 3rd Respondents on the 27th of November 2018 claiming:
1
1. A declaration that it is unconstitutional, illegal and unlawful for the 1st Defendant (APC) to forward the name of the 3rd Defendant (who scored 1,135 votes at the primary election) to the 2nd Respondent (INEC) as its candidate for the forthcoming 2019 State House of Assembly election for the seat of member representing Darazo/Sade Constituency of Bauchi State, in the place of the Plaintiff who scored the highest number of votes (4842) at the end of the APC conducted primary Election held on the 5th October 2018 and was been dully declared winner in accordance with the Section 87(1) (2) (3) (4) (c) (i) (ii) of the Electoral Act 2010 (As Amended) and Articles 20 (iii) (iv) and 33 (xv) of the APC Constitution 2014 (As Amended) and APC Guidelines for nomination of candidate for public office without any Court order disqualifying the Plaintiff or any cogent and verifiable reasons.
2. A declaration that the 1st Defendant (APC) is duty bound by law having regards to the combined reading of Section 87 (1), (2), (3), (4) (c) (i) (ii) of the Electoral Act (As Amended) and APC Guideline for the nomination of candidate for public office to forward the name of the Plaintiff alone as the
2
highest scorer to the Second Defendant (INEC) as its candidates for the forthcoming 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State (the General Election) who scored 4842 votes and came first with the highest number of votes cast at the APC conducted primary election for State House of Assembly for Darazo/Sade Constituency of Bauchi State held on the 5th October, 2018.
3. An order declaring That the Plaintiff who scored the highest number of vote cast at the 1st Defendants (APC) primary election at Bauchi foe Darazo/Sade Constituency of Bauchi State held on the 5th day of October, 2018 as the only rightful candidate of the 1st defendant (APC) whose name must be forwarded to the 2nd defendant (INEC), as it (APC) candidate for the forthcoming 2019 State House of election for the seat of member representing Darazo/Sade constituency of Bauchi State.
4. An order directing the 1st defendant to forward the name of the Plaintiff to the 2nd defendant to be candidate for the forthcoming 2019 State House of Assembly election for the seat of member representing Darazo/Sade constituency of Bauchi State in the place
3
of the name of the 3rd defendant earlier forwarded to the 2nd Defendant flagrant in disregard to the relevant express provisions of the Electoral Act, and APC Constitution, and APC Guidelines for the nomination of candidate for public office.
5. An order for 2nd Defendant to forthwith publish the name of the Plaintiff for the purpose of the conduct of 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State as the rightful and lawful candidate of the 1st Defendant (APC) having scored the highest number of votes cast at the primary election held on the 5th October, 2018 to exclusion of any other person.
6. An order of Perpetual Injunction restraining of the Defendants jointly and severally by themselves, servants, their agent, privies or assigns from further recognizing and or retaining or further re-publishing the name of the 3rd Defendant in INEC election manuals, notices and any other processes or to lead or leading to the conduct of forthcoming 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State.
?At the conclusion of hearing, the trial judge, Hassan Dikko, J., in a considered judgment
4
incidentally delivered on the 26th day of March 2019 after the holding of the General Election, found in favour of appellant and first made the following four declarations in his favour:
1. That it is unconstitutional, illegal and unlawful for the 1st Defendant (All Progressive Congress) to forward the name of the 3rd Defendant (who scored 1135 votes at the APC primary election) to the 2nd Defendant (INEC) as its candidate for the 2019 State House of Assembly election, for the seat of member representing Darazo Sade Constituency of Bauchi State, in place of the Plaintiff who scored 4842 votes at the end of the primary election held on the 5th October, 2018, and was dully declared a winner.
2. That the 1st Defendant (APC) was/is duty bound by law to forward the name of the Plaintiff as the highest scorer in the primary election to the 2nd Defendant (INEC) as its candidate for the 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State.
3. That the plaintiff who scored the highest number of votes cast at the 1st Defendant?s APC primary election at Bauchi for Darazo/Sade Constituency held on the 5th day of October,
5
2018, is the only rightful and lawful candidate of the 1st defendant (APC) whose name ought to have been forwarded to the 2nd Defendant (INEC) as its candidate for the 2019 State House of Assembly Election, for the seat of member representing Darazo/Sade Constituency of Bauchi State.
4. That forwarding the name of the 3rd Defendant who was not the winner of the 1st Defendant?s primary election to the 2nd Defendant (INEC) by the 1st defendant (APC) as its candidate for the 2019 State House of Assembly Election for Darazo/Sade Constituency is null, void and of no effect whatsoever.
After making those declarations, His Lordship reasoned that other reliefs sought by appellant had been overtaken by the conduct of the General Elections on 9th March 2019, where 3rd respondent whose nomination he declared null and void was declared winner and returned elected by INEC, made a detour, so to speak, and rather ordered as follows:
1. That 1st Defendant (APC) did not sponsor any candidate in the 2019 State House of Assembly Election for Darazo/Sade Constituency and the 2nd Respondent (INEC) shall disregard the purported participation of the 3rd
6
Respondent (Saidu Isah Abdu) in the said election by this order.
2. That 2nd Respondent (INEC) shall not recognize 3rd Respondent as a legitimate candidate for the 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State.
3. That 2nd Respondent (INEC) shall not issue the Certificate of Return to the 3rd Respondent whose candidature is nullified and should withdraw same if already issued.
4. The 2nd Respondent (INEC) shall issue Certificate of Return to the candidate who came second in the election and who participated fully in all stages of the election in compliance with Section 285 (13) of the Constitution of the Federal Republic of Nigeria (4th Alteration) Act, 2017.
Appellant is unhappy with Orders 1 and 4 particularly the italicized portions and has brought this appeal by way of a Notice of Cross-Appeal and distilled from his cross-appeal the following single issue for determination.
Whether in the circumstances of this case, the learned trial judge was right in law, when after granting the declaratory reliefs Nos. 1-4 in favour of the cross-appellant to turn around to make consequential orders No. 1- 4,
7
particularly No. 4 denying the cross-appellant any redress when the issue resulting to the order was raised suo motu by the learned trial judge and resolved against the political interest of the cross- appellant and without giving him a hearing on the issue and making same order No. 4 to favour a non-party to the suit.
Mr. A.A. Ibrahim on appellant?s behalf argued that the effect of Orders No. 1 and 4 was to leave appellant with empty victory, which counsel argued is contrary to the provisions of Section 87(9) of the Electoral Act 2010. He submitted that appellant?s action being a pre-election matter does not abate or become academic by the holding of the General Election even as he did not participate in that election. Counsel cited in support of that argument the cases of Amaechi v INEC (2008)5 NWLR (Pt. 1080) 227 and Abubakar v. Yar?adua (2008) 18 NWLR (pt. 1120) 1. Counsel submitted along the lines of Amaechi v INEC that appellant?s political party, APC, actually participated in the said 9th March 2019 General Election so the issue was simply who as between appellant and third respondent was its rightful candidate. Counsel
8
pointed out that the learned trial Judge in his judgment also held that it is unconstitutional, illegal and unlawful for 1st Respondent (APC) to forward the name of the 3rd Respondent to the 2nd Respondent (INEC) as its candidate for the 2019 State House of Assembly Election, that 1st Respondent (APC) was duty bound by law to forward the name of appellant to 2nd Respondent as its sponsored candidate for the 2019 election. Counsel submitted that having nullified and voided the submission of the 3rd Respondent?s name for the General Election and declared appellant as the only lawful candidate of 1st Respondent (APC) whose name ought to have been forwarded to INEC as its candidate for the election held on the 9th March 2019, the lower Court had closed the case as to who is the rightful and lawful candidate of the (APC) for the 9th March, 2019 and cannot properly turn around as it did to say that APC did not sponsor any candidate for Darazo/Sade of Constituency of State House of Assembly the Bauchi State in the General Election.
?Coming to Section 285(13) of the 1999 Constitution, learned counsel argued that that is not a provision to destroy the right
9
of access granted to citizens under Section 36 of the Constitution nor can it be construed to destroy the jurisdiction which the ordinary Courts in Nigeria have in pre-election matters as provided by Section 87(10) of the Electoral Act. In any case, he further argued, the effect of Section 285(13) of the Constitution on the suit was not raised by any of the parties, that it was the Court that raised it suo motu in its judgment which in the end robbed appellant of any redress in the action and breached appellant?s right to fair hearing under Section 36(1) of the same Constitution. The trial Judge having raised the issue of Section 285(13) suo motu ought to have invited parties to address him on its effect, counsel argued. Learned counsel cited Salu v. Egeibon (1994) 6 NWLR (PT 348) 32 to say once the principle of natural justice is violated it does not matter whether if the proper thing was done the decision would have been the same, the proceeding will be null and void.
Counsel also submitted that the Court has no power to make orders either in favour of or against persons who are not parties to an action, for which he cited
10
Makarfi v. Poroye (2017)10 NWLR (Pt. 1574)419.
Counsel argued too, that by Section 221 of the Constitution and the Electoral Act, it is still the law that only a political party canvasses for votes for any candidate at any election, that without a political party a candidate cannot contest as the contest in an Election is between political parties, so in the real sense of it is political parties that win or lose election.
Counsel urged us to set aside the said orders 1 and 4 because they did not flow from the judgment and reliefs. Consequential order is one that flows from the judgment, and makes the principal order effective, counsel argued, citing Obayagbona v. Obazee (1972) 5 S.C 274 and Momah v. Vab Petroleum Inc. (2000) 4 NWLR (PT. 654) 572. In their stead, counsel urged us to make orders directing INEC to issue Certificate of Return to appellant forthwith, he, according to counsel, having won the election of 9th March, 2019 for Darazo/Sade Constituency of Bauchi State. Substantial justice in the matter requires that appellant reap the fruits of his judgment as the only rightful and lawful candidate for APC at the State House of Assembly Election conducted by INEC.<br< p=””</br<
11
First and 3rd Respondent?s filed briefs of argument and adopted them in Court but took very unusual approaches in their said briefs. Whereas 1st respondent in his brief abandoned the traditional role of Respondent, which is to support the appeal, and rather urged us to allow the appeal, 3rd respondent who is appellant in the main Appeal No. CA/J/130/2019 simply ignored the issues in this appeal and went on a frolic of his own to attack the competence of appellant?s action as filed in the lower Court and argued that it was barred by Section 285(9) of the Constitution having been filed outside 14 days of the occurrence of his right of action, which point is incidentally his argument in his own appeal. In other words, he simply continued arguing his appeal even in this appeal instead of facing the issues set out by the cross-appellant in his notice of appeal.
Both briefs of 1st and 2nd respondents, I hold, are incompetent. Accordingly, I shall discountenance them and determine the appeal on only the arguments canvassed by the cross-appellant.
Resolution of issue
Now the grouse of appellant is that his action being a pre-election
12
matter was alive and no portion of it overtaken by the conduct of the General Election of 19th March 2019 as the trial judge reasoned; that it is of no consequence that he did not participate in that general election; that elections are contested by parties and not candidates going by the decision of the Supreme Court in Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 read together with Section 87(9) of the Electoral Act 2010; that that position was not adversely affected by the provisions of Section 285(13) of the 1999 Constitution as amended by the 4th Alteration (No. 21) Act of 2017.
Is appellant right? Does Amaechi v INEC (2008)5 NWLR (Pt. 1080) 227 and its pronouncements that it is political parties that contest election so a person who won a party primary and ought to have been nominated by his party but was not so nominated and so did not participate in the General Election still stood to benefit from the victory of the his party (using the language of Amaechi v. INEC (supra) still the position of the law?
Section 285 (13) of the 1999 Constitution states thus:
An election tribunal or Court shall not declare any
13
person a winner at an election in which such a person did not fully participate in all stages of the election.
Fortunately, this provision, which was originally Section 141 of the Electoral Act 2010 until “We the People of the Federal Republic of Nigeria through their representatives both at State and National Assemblies (concurrence of both Assemblies is mandatory to effect amendment of the Nigerian Constitution) amended the 1999 Constitution on 7th June 2018 to elevate it to the Constitutional provision that it presently is, has been interpreted by the Supreme Court vis?a-vis Amaechi v. INEC supra in Congress for Progressive Change (CPC) & Anor v. Ombugadu & Anor (2013) LPELR-21007 (SC), (2013) 18 NWLR (PT 1385) 66 (SC), incidentally a pre-election matter too like the present one. In that case, this Court by its lead judgment of Uchechukwu Onyemenam, J.C.A., in overturning the judgment of the trial Federal High Court ruled among others that ?Again by virtue of Section 141 of the Act [Electoral Act 2010), the Court cannot make the consequential order made by the Court below? namely an order that an aspirant who did
14
not participate in the general election be issued certificate of return as the person duly elected. In upholding that decision the apex Court in its lead judgment by Ngwuta, J.S.C. had this to say:
The second arm of the issue is the propriety vel non of the consequential order made by the trial Court in view of Section 141 of the Electoral Act (supra). The consequential order reads:
It is hereby ordered that the 1st defendant returns the 2nd plaintiff as the winner of the April 9, 2011 National Assembly Election into the House of Representatives of the Federal Republic of Nigeria representing Akwanga/Wamba/Nasarawa-Egon Federal Constituency
Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:
An election tribunal or Court shall not declare any person a winner at an election in which such a person did not fully participate in all stages of the election.
By the above provision, the National Assembly has set aside the decision of this Court in Amaechi v. INEC (2008) 5 NWLR (PT 1080) page 227. Contrary to the decision of this Court in Amaechi?s case, the implication of
15
Section 141 of the Electoral Act 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him.
?In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election starting from nomination to the actual voting.?
That settles it and justifies the approach of the learned trial judge that since cross-appellant whom he found to have won his party?s primary election but was wrongfully denied nomination by his political party did not participate in the General Election of 9th March 2019, even though he filed his pre-election action in Court before that election, he could not be declared winner of the General Election purportedly won by 3rd respondent who ought not to have even been on the ballot in the first place and had his nomination by 1st respondent properly declared null and void.
16
Appellant?s invocation of the Latin maxim of ubi jus ibi remedium ? wherever there is right there is a remedy – and call to us to do ?substantial justice? and declare him elected as the member representing Darazo/Sade Constituency in the Bauchi State House of Assembly is also of no avail given the provisions of Section 285(13) of the Constitution and the decision in CPC & Anor v. Ombugadu & Anor supra. His prayer on the contrary rather brings to mind the timeless advice of Oputa, J.S.C. in Akanbi v. Alao (1989) 3 NWLR (PT 108) 118 @ 157-158 for the Courts to be also wary when the expression ?need to do substantial justice is invoked in litigation as is almost always done by litigants. His Lordship there said:
..the aim of all adjudications in our Courts should be the attainment or furtherance of justice. This however should not be an abstract justice, nor should it be subjective justice. Rather it should be fair and even handed justice, justice according to law.
Whenever anything is said to have been done in furtherance of justice? one gets easily taken in. That however
17
should not be the case, until one is quite clear and quite sure of what exactly that expression comprehends and/or means. For unless what is meant is clear, such expressions like furtherance of justice or interest of justice may cover a multitude of sins. Expressions like ?furtherance of justice? or ?interest of justice? may in the end be a covering for injustice…
Also a decision given without due regard to all our decided cases in point; given against all known principles can hardly be given in ?furtherance of justice.
Yes, one cannot but sympathize with appellant who filed his pre-election action on 27th November 2018 well before the March 2019 General Election and even concluded hearing of his case several days before the said Election yet found himself unable to reap the benefit of the declaratory orders of the Court in his favour; but that is not licence for the Court to go outside the
18
Constitution which defines the powers of each arm of government and bestowed exclusively on the Legislature the power to make laws while the judiciary is only to interpret such laws. In performing its function the duty of the Courts is to give the Constitution and every other statute their plain meaning even if that gives an unreasonable or unfair result, provided it does not lead to absurd or impracticable result: Ndoma-Egba v. Chukwuogor (2004) 2 S.C. (PT 1) 107 @ 114-115 (Uwaifo, J.S.C.). The Court cannot ignore clear provisions of statutes let alone of the Constitution and proceed to impose its ideas of what is just and fair in interpreting them. This trite position was brought to the fore forcefully by the English House of Lords when it came down rather heavily on Lord Denning, M.R., when His Lordship, leading his brethren (Lawton and Ackner, LL.J.J.) in the English Court of Appeal, sought to sidetrack an earlier interpretation of an industrial relations statute by the House of Lords and gave what he thought was a fairer and more just interpretation. In that case – Duport Steels Ltd v. Sirs (1980) 1 ALL E.R. 528 – Lord Diplock spoke thus at p. 541:
19
?My lords, at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on separation of powers: Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that which Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judge to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient or even unjust and immoral. In controversial matters
20
such as are industrial relations there is room for difference of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution it is the opinion of Parliament in these matters that is paramount.?
It is not also correct as argued by Mr. Ibrahim for appellant that the trial judge by raising and relying on Section 285(13) of the Constitution breached appellant?s right to fair hearing under Section 36(1) of the Constitution. It is within the province of the Court to rely on authorities be they statutory and case law that it feels is relevant to its judgment. Yes, it may end up applying such authorities wrongly, but that is not to say that each time a Court comes across a relevant statutory provision it must invite addresses from parties before applying it. In fact a similar argument like this was rejected outright by the apex Court in Orugbo & Anor v. Una & Anor (2002) 16 NWLR (PT 792) 175; (2002) LPELR-2778 (SC) p.33-34. There the issue was whether a trial Customary Court did not breach respondents? right when it on its own referred to historical books on the ownership of a disputed expanse of
21
land and relied heavily on those books to decide the case against the respondents. The High Court and this Court on appeal all accepted respondents? argument that that action of the trial District Customary Court breached their right to fair hearing, that the Court ought to throw the question back to the parties so that respondent?s can also cite books, if any, that is favourable to their position even more so when all the members of the said trial District Customary Court were from appellants? tribe whose case the books favoured. In disagreeing with that stance, the apex Court in its lead judgment by Tobi, J.S.C. at p.33-34 LPELR had this to say:
A Court of law has no legal duty to confine itself to only authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of right to fair hearing; not even the twin principles of natural justice.?
See also Bola Tinubu v. I.M.B. Securities Plc (2001)
22
LPELR-3248 (SC) 22 paragraph B-C (Iguh, J.S.C.).
At any rate it is now settled that the Court?s failure to hear parties on an issue before arriving at a decision cannot by that fact alone result in reversal of the decision on appeal, the party complaining must go further to show that miscarriage of justice was occasioned on account of that: see Gbagbarigha v. Toruemi (supra); Katto v. C.B.N. (supra); Usman v. Ogembe (2012) ALL FWLR (PT 613) 1844 @ 1858 (S.C.); Moses v. State (2006) ALL FWLR (PT 322) 1437@ 1478 (S.C.); Omoniyi v. Alabi (2015) ALL FWLR (PT 774) 181 @ 195 (S.C.). Effiom & Anor v. C.R.S.I.E.C. (2010) 14 NWLR (PT 1213) 603 @ 633-634; (2010) LPELR-1027 (SC). Cross-appellant never attempted to show that he suffered any miscarriage of justice in real terms on account of the lower Court?s interpretation of Section 285(13) of the Constitution, which interpretation, as already shown here, even represents the correct position of the law.
?Section 87(9) of the Electoral Act 2010 invoked by cross-appellant on his right to continue his pre-election matter even after the holding of the general election is also of no avail as it
23
relates to the limits of the orders the Court can make as clearly stated by Section 285(13) of the Constitution. Section 87(9) of the Electoral Act 2010 permits the prosecution of a pre-election case filed before the election even after the holding of the election, and for the Court to make appropriate orders, but that does not mean that the Court will in that exercise make orders that the Constitution forbids. The supremacy of the Constitution over all other statutes is well spelt out by Section 1 (1) and (3) of the same 1999 Constitution.
Having confirmed that the lower Court was correct in its decision that appellant cannot be declared elected and returned, he having not participated in all stages of the election, it follows that he cannot even properly question the Court?s order that INEC issue a Certificate of Return to the candidate who came second and participated in all the stages of the election. He lacks locus standi to do so, more so as the trial Court also found, correctly, that his political party, 1st respondent, did not even sponsor any candidate in the General Elections. INEC is in any case mandated by Law to monitor party primaries
24
so it should know whether the candidate who came second in the election also participated in his Party primary.
At any rate, election matters, including pre-election proceedings like the instant one, are sui generis, meaning they are unique, of a different kind and not amenable to a lot of the usual principles of law applicable to ordinary civil litigations: see Mato v. Hember (2018) 5 NWLR (PT 1616) 258, (2018) ALL FWLR (PT 925) 146, (2017) LPELR-42675 (SC); Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547, (2010) LPELR-1357 (SC); Lokpobiri v. Ogola (2016) 3 NWLR (PT 1499) 328. The expression sui generis is derived from Latin and means in a class or group of its own, not like anything else, different from all other things, unique, peculiar: In PDP V. Ezeonwuka (2017) LPELR-42563(SC) p. 68-69 it was said (Kekere-Ekun, J.S.C.) that:
Election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547; James v. INEC (2010) 17 NWLR (PT 1223) 547. In Orubu v. National Electoral Commission (1988) 5 NWLR (PT 94) 323 @ 347, His Lordship Uwais, JSC (as
25
he then was) opined thus:
An election petition is not the same as ordinary civil proceedings, it is a special proceeding because of the peculiar nature of elections which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in court.?
See also Obasanya v. Babafemi (2000) 15 NWLR (PT 689) 1 @ 17, per Uwais, J.S.C., (as he then was); Abubakar v. Yar? Adua (2008) ALL FWLR (PT 404) 1409 at 1450 E-F. Since primary elections produce candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis.?
More than anything else, what makes an election related proceeding sui generis and of a special kind is that, beyond the parties before the Court, there is also the interest of the electorate who defied rain and shine to exercise their civic right to vote in the elections to be represented in government. Their right to representation has to be also taken into account
26
by the Court, after all that is all what elections are about.
There is also the fact here that the time for submission/substitution of candidates by political parties to INEC for General Elections under the Electoral Act is long past and even the General Election has been since conducted.
Add to that the issue of whether tax payers? money should be deployed a second time in organizing another election, assuming that is even allowed at all, all because of the deliberate act of appellant?s political party in nominating a wrong person as its candidate for which it was declared by the Court, correctly, that it did not even sponsor any candidate in the election.
Taking into account all the foregoing, it does not seem to me that the lower Court as a Court of justice was wrong in making necessary consequential orders as it did in the circumstances of this case to ensure that the innocent electorate of Darazo/Sade Constituency of Bauchi State do not end up without representation in the Bauchi State House of Assembly for the next four years.
In the event, I resolve appellant’s sole issue against him, with the result that the
27
appeal is hereby dismissed and the judgment of the lower Court and all its orders are affirmed.
Parties shall bear their costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I read with rapt concentration the draft of the well written judgment of my learned brother BOLOUKUROMO MOSES UGO, JCA in APPEAL NO. CA/J/131/2019; wherein the learned Justice resolved the sole issue against the Appellant and dismissed the appeal. I agree with the ratiocination of my learned brother and his conclusion. I adopt the judgment as mine as I have nothing to add. I abide by the order as to cost.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the lead judgment of my learned brother Ugo, J.C.A just delivered, I agree with his reasoning and conclusion arrived thereat. My learned brother had adequately considered and resolved all the issues raised for determination in this Cross-Appeal. I have nothing useful to add. I too dismiss the appeal and abide by the consequential orders contained in the lead judgment costs inclusive.
28
Appearances:
A. A. Ibrahim, Esq. with him, Paulinus ShailongFor Appellant(s)
J.P. Dukut Esq., holding the brief of Rabiu Garba Esq., for 1st Respondent.
D. G. Hassan Esq. with him, H.I. Barau Esq., A.L. Fanini Esq., and S.D. Danjuma Esq. for 3rd Respondent.
2nd Respondent was unrepresented.For Respondent(s)
Appearances
A. A. Ibrahim, Esq. with him, Paulinus ShailongFor Appellant
AND
J.P. Dukut Esq., holding the brief of Rabiu Garba Esq., for 1st Respondent.
D. G. Hassan Esq. with him, H.I. Barau Esq., A.L. Fanini Esq., and S.D. Danjuma Esq. for 3rd Respondent.
2nd Respondent was unrepresented.For Respondent
