HON. TOBIAS CHUKS EGEONU v. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2014)LCN/7111(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
CA/OW/103/2013
RATIO
ELECTION PETITION: WHETHER AN ELECTION PETITION MAY BE DESCRIBED AS A CIVIL PROCWEEDING
Election petition is not, stricto sensu, a civil proceeding and cannot be described as such. A special law or Act, usually governs election petition procedure. The jurisdiction of the Tribunals under the law is also of a very special nature distinct from what obtains in an ordinary civil case. Election petition proceedings are special and special provisions are made to regulate them. It is appropriately described as a proceeding sui generis, meaning in Latin “of its own kind.” see YUSUF v. OBASANJO (2004) ALL FWLR (Pt. 213) 1884 and BUHARI v. YUSUF (2003) FWLR (Pt. 174) 329 AT 355. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
HON. TOBIAS CHUKS EGEONU Appellant(s)
AND
1. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENT ELECTORAL COMMISSIONER, ABIA STATE
3. THE ELECTORAL OFFICER, UMUNNEOCHI L.G.A.
4. RETURNING OFFICER, UMUNNEOCHI STATE CONSTITUENCY
5. PRINCE IKEDI EZEKWESIRI Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court holden at Umuahia Judicial Division delivered by His Lordship, Honourable Justice F.A. Olubanjo on 21/3/2013, in Suit NO. FHC/UM/CS/90/2011, between Hon. Tobias Chuks Egeonu v. (1) Independent National Electoral Commission (2) The Resident Electoral Commissioner, Abia State (3) The Electoral Officer, Umunneochi L.G.A. (4) Returning Officer, Umunneochi State Constituency (5) Prince Ikedi Ezekwesiri, wherein the claims of the Appellant hereinbefore the Plaintiff at the lower court was struck out for want of jurisdiction.
The Appellant at the lower court on 26/10/2011 vide a Writ of Summons instituted an action at the Federal High Court against the Respondents heretofore the Defendants, claiming the following reliefs:
(i) A declaration that the plaintiff who was validly nominated by his political party duly participated and or contested the House of Assembly Election for the Umunneochi State Constituency of Abia State held on the 26th day of April, 2011.
(ii) A declaration that the exclusion and or deletion of the Plaintiff’s name and that of his political party by the Independent National Electoral Commission (INEC) from the comprehensive/final list containing the results of candidates who contested the House of Assembly Election for the Umunneochi State Constituency held on Tuesday the 26th day of April, 2011 was deliberate and or fraudulent.
(iii) A declaration that the deliberate exclusion and or deletion of the plaintiff’s name and that of his political party from the comprehensive/final list of candidates who contested the House of Assembly Election for the Umuneochi State constituency of Abia State held on 26th day of April, 2011 was unlawful.
(iv) A declaration that the non publication of the Plaintiff’s results and non inclusion of plaintiff’s name and that of his political party in the comprehensive/final list of candidates who contested the House of Assembly Election aforesaid was unlawful.
(v) A declaration that the Independent National Electoral Commission (INEC) as a result of this deliberate and fraudulent exclusion of the Plaintiff’s name and that of his political party from the said comprehensive/final list of candidates who contested the said House of Assembly Election for the Umunneochi State Constituency seat of Abia State frustrated and or foreclosed the plaintiff from challenging the wrongful election and return of the 5th Defendant at the Governorship/Legislative Houses Election Petition Tribunal sitting in Umuahia, Abia State within the stipulated time frame allowed under the law.
(vi) A declaration that the 5th Defendant at the material time of the election into the Umunneochi State Constituency seat of the Abia State House of Assembly was not qualified to contest the election, the 5th Defendant having presented to the Independent National Electoral Commission (INEC) forged certificates which act at the time was made known to the “Commission” and even to the electorate before the election.
(vii) An order of this Honourable Court declaring as null and void the wrongful election and return of the 5th Defendant as the winner of the House of Assembly Election for the Umunneochi State constituency seat held on the 26th day of April, 2011. This flowing from the fact that the Plaintiff was deliberately frustrated and or foreclosed by the Independent National Electoral Commission (INEC) from challenging the said wrongful election and return of 5th Defendant at the Governorship/Legislative Houses Election Petition Tribunal sitting in Umunneochi Abia State within the stipulated time frame allowed under the law.
(viii) An order of the Honourable Court that fresh elections be held in Umunneochi State Constituency for the House of Assembly seat considering the unlawful maltreatment meted out on the Plaintiff by the Independent National Electoral Commission (INEC) so as to finally determine the legitimate representative of the said Constituency.
(ix) The sum of N10,000,000,00 (Ten Million Naira) only being General Damages against the 1st Defendant for the complained acts of irregularity, fraudulent and malicious frustration and or foreclosure of the Plaintiff’s chances of challenging the wrongful election and return of the 5th Defendant at the Governorship/Legislative Houses Election Petition Tribunal sitting in Umuahia, Abia State within the stipulated time frame allowed under the law.
The facts leading to this appeal are that the Appellant at the lower court, who was a registered member of All Progressive Grand Alliance (APGA) and a native of Umudim Ngodo Isu-Ochi in Umunneochi L.G.A of Abia State, contested the general election into the Abia State Constituency seat of Abia State held on 26/4/2011 against the 5th Respondent. After the election, the 1st Respondent declared the 5th Respondent the winner of that election and consequently duly returned. Nonetheless, the Appellant after a period of six (6) Months, precisely on 26/10/2011, filed an action against the Respondents at the Federal High Court seeking for the reliefs hitherto listed. Consequently, the Respondents filed a Preliminary Objection to the jurisdiction of the Federal High Court to entertain the matter for the reason that it was a post election matter having being statute and time-barred. In a considered Ruling, the lower court on 21/3/2013 struck out the Appellant’s suit for want of jurisdiction and held at page 220 of the records:
“In my findings, I hold that this being a post election suit, which is furthermore statute barred, this Honourable Court lacks jurisdiction to adjudicate thereon. See page 220 of the record.”
Aggrieved, the Appellant appealed to this Honourable Court, vide a Notice of Appeal dated 2/4/2013 and filed 4/4/2013 with a lone ground of appeal hereunder reproduced including its particulars:
GROUND OF APPEAL
The learned trial judge erred in law when he held that the Plaintiff’s suit being a post election suit is statute barred and therefore lacks jurisdiction to adjudicate on same.
PARTICULARS OF ERROR
(a) The Plaintiff’s claim against the Defendants is for a declaratory action wherein he is seeking a redress of his constitutional right which has been infringed upon by the 1st to 4th Defendants with the collaboration of the 5th Defendant.
(b) The learned trial judge held that from the peculiar facts of this case, the Federal High Court lacks the jurisdiction to entertain the suit being a post election matter which the election tribunal has original exclusive jurisdiction.
(c) The judicial powers vested in accordance with the provision of the Constitution of the Federal Republic of Nigeria 1999 extend to all matters between persons or between government or authority and to any persons in Nigeria for the purpose of any question as to the civil rights and obligation of that person.
(d) The present action of the Plaintiff is not post election matter which the Election Petition Tribunal has original exclusive jurisdiction.
(e) The Plaintiff’s action is a declaratory action of which the Federal High Court and not the Election Petition Tribunal has original exclusive jurisdiction.
(f) That a declaration action cannot be statute and time barred.
(g) It is a trite principle of law that when any person/individual feels that his right or any of his right has been infringed upon such a person has the right to approach the law courts for redress.
As it is the practice of this Honourable Court, parties filed and exchanged briefs of argument. The Appellant’s brief dated 15/4/2013 and filed 16/4/2013, settled by M.C. Nwosu, Esq., has two (2) issues formulated thus:
1. Whether the facts of this case and reliefs sought therein did not give rise for the determination of questions as to the civil rights and obligations of a person to which this Honourable court is vested with the requisite jurisdiction.
2. Whether from the facts of this case and the reliefs sought therein the suit before this Honourable court can be regarded as a post election matter to which the Election Petition Tribunal alone has the original exclusive jurisdiction.
The 1st to 4th Respondents filed a joint brief dated 13/5/2013 and filed 15/5/2013, settled by S. Nwigboke, Esq.; formulated an issue for determination:
Whether the court below was right in striking out the Appellant’s suit for lack of jurisdiction, being a post election suit, which is furthermore statute and time barred.
The 1st to 4th Respondents’ brief is incorporated with a Notice of Preliminary Objection contained at pages 6-9 of the brief on the grounds that:
(A) The ground of appeal is not a ground of law but of law and fact and leave of court was not sought; and
(B) The two issues formulated by the Appellant do not arise from the ratio decidendi of the case.
While the 5th Respondent filed his brief dated 22/4/2013 and filed 23/4/2013, was settled by Anya Isaac Esq. with a lone issue for determination:
Whether the lower court was right to decline jurisdiction to entertain the suit of the Appellant.
At the hearing of the appeal on 10/2/2014, the parties adopted their respective briefs. The Appellant’s brief of argument dated 15/4/2013 and filed on the 16/4/2013 was deemed argued and therein prayed this court to allow the appeal and set aside the Ruling of the trial court. The 1st to 4th Respondent’s counsel, S. Nwigboke, Esq. adopted their brief of argument dated 13/5/2013 and filed on the 15/5/2013 and urged the Court to dismiss the appeal for lacking merit. The 5th Respondent’s Counsel adopted and relied on the 5th Respondent’s brief dated 22/4/2013 and filed on the 23/4/2013 and urged the court to dismiss the appeal.
I shall for the purpose of the determination of this appeal, consider the issues herein raised by the parties to this appeal under the 5th Respondent’s formulated issue.
ISSUE FOR DETERMINATION:
Whether the lower court was right to decline jurisdiction to entertain the suit of the Appellant.
It is the contention of the Appellant’s Counsel that his suit is a declaratory action for damages against the unlawful infringement of the civil right of the Appellant by all the Respondents contrary to the Constitutional provision of Section 6(6)(b) of the 1999 CFRN (As amended). He submitted that a right of action consists of the facts which enable a person to bring a complaint before the court. He cited A.G. (FED) v. SODE (1990) 1 NWLR (Pt. 128) 50 AT 538. He further submitted that where there is a right, there is a remedy. He quoted the cases of SHELL PET. DEV. CO. v. FARAH & ORS (1995) 3 NWLR (Pt. 382) 148 AT 198, AKINNUBI v. AKINNUBI (1997) 2 NWLR (Pt. 486) 144 AT 160 and O.A.U v. ONABINJO (1991) 5 NWLR (Pt. 194) 549 AT 563. It is his argument that the Federal High Court has the constitutional and inherent powers to determine questions as to civil rights and obligations of the Appellant and that the inherent powers or jurisdiction of a court is that power which is not expressly spelt out by the Constitution and can by necessity be invoked by the court. He cited GOMBE v. P.N. (NIG) & ORS (1990) 5 NWLR (Pt. 151) 473 AT 481, UMUKORO v. NPA (1997) 4 NWLR (Pt. 502) 656 AT 669, N.D.I.C v. F.M.B (1997) 2 NWLR (Pt. 490) 735 AT 754 and IPINLAIYE v. OLUKOTUN (1996) NWLR (Pt. 453) 148 AT 165, 173. He therefore contended that the provision of Sections 133(2) and 134 (1) of the Electoral Act cannot override the express provision of Section 6(6)(b) of the 1999 CFRN (As Amended). He thus submitted that when an enacting authority has made an express provision on a particular subject matter, no additional provision can be made by implication. He relied on LAWAL v. ODEJIMI & ANOR (1993) NWLR 23 AT 25, ILORI v. ILORI (1971) I.U.I.L.R. (Pt. IV) 445 AT 449-450 and BOLAJI v. BAMGBOSE (1986) 4 NWLR (Pt. 37) 632 AT 656.
He further contended that the Appellant’s action is not a post election matter but a pre-election matter which the Federal High Court and not the Election Tribunal has jurisdiction to entertain. He submitted that under Section 285(1) of the 1999 CFRN (As Amended), the Election Tribunal does not have jurisdiction to deal with pre-election matters but the regular courts. He relied on ODEDO v. INEC (2008) 17 NWLR (Pt. 1117) 554 AT 479 PARA G-H and DOUK POLAGHA v. GEORGE (1992) 4 NWLR (Pt. 236) 444 AT 458. He contended that Election Tribunal was set up to deal with election matters and not with disputes before election. He relied on NEC v. NRC (1993) 1 NWLR (Pt. 267) 120. He thus submitted that the presentation of forged certificates by the 5th Respondent aroused before the election consequently vesting jurisdiction on the Federal High Court. He finally prayed this court to resolve the issues in the Appellant’s favour.
In his response, the learned counsel to the 1st to 4th Respondents submitted that the trial court was right in striking out the suit for lack of jurisdiction being a post-election suit that is statute and time barred. It is his contention that to determine the competence of the Appellant’s suit, the relevant provisions are Sections 285 (5)(a) of the 1999 CFRN (As Amended) and 134(1) of the Electoral Act, 2010 (As Amended) which they relied on. He submitted that the said provisions unambiguously provide for 21 days within which election petition is to be presented after the declaration of the results. He therefore submitted that where a language used by the legislature is clear and explicit, effect must be given to it. He relied on the following cases; UGWU v. ARARUME (2007) 12 NWLR (1048) 367 AT 432 PARA H & PARA D-E, BAKARE v. INEC (2007) 17 NWLR (1064) 606 AT 621, OGBEBOR v. DANJUMA (2003) 15 NWLR (843) 434 AT 435 and ATTORNEY-GENERAL OF EKITI STATE v. A.G. FEDERATION (2001) 10 SCNJ 117 AT 146.
Learned counsel further submitted that since parties are agreed that the election in dispute held on 26/4/2011 and result declared on same day but the Appellant’s suit was filed at the Federal High Court on 26/10/2011; a post election suit has to be filed at the Election Petition Tribunal within 21 days from the date of the declaration in mandatory compliance with Sections 285 (5)(a) of the 1999 CFRN (As Amended) and 134(1) of the Electoral Act, 2010 (As Amended). It is contended therefore that any petition filed outside the 21 days statutory period is statute and time barred and therefore incompetent. He relied on EMEKA v. EMODI (2004) 16 NWLR (Pt. 900) 433, PDP v. ABUBAKAR (2004) 16 NWLR (Pt. 900) 455 and MOGHALU v. NGOGIE (2005) 4 NWLR (Pt. 914) 1. Learned counsel finally submitted that since the Appellant’s suit was filed on 26/10/2011, it was over 180 days after the declaration of the result which made the situation incurably incompetent and the trial court was right to strike out same for lack of jurisdiction being a post-election suit that was time and statute barred. He urged this court to resolve the issue in their favour and dismiss the appeal for lack of merit.
The 5th Respondent on the other hand contended that by the Particulars of Claim of the Appellant, it is obvious that the cause of action arose on 31/1/2011 and 26/4/2011 respectively. He cited the case of EGBE v. ADEFARASIN (2002) 14 WRN 57 AT 3-4. His contention is that by virtue of Section 31 (5) of the Electoral Act, 2010 (As Amended), the Appellant’s right of action against the 5th Respondent first accrued on 31/1/2011 to file an action at the Federal High Court, State High Court or the Federal Capital Territory (Abuja) but waited until on 26/10/2011. Similarly, that after the election on 26/4/2011 when the 5th Respondent was declared the winner, the Appellant’s action accrued on 27/4/2011. That the Appellant’s claim 1 to 8 at the lower court revolved around Section 138 of the Electoral Act, 2010 (As Amended) which deal with grounds for the presentation of an election petition and the Federal High Court is not vested with that jurisdiction. He relied on MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 AT 478 PARAS D-E.
He argued on the contention of the Appellant that the Federal High Court has inherent powers to determine question of civil rights and obligations as a grave misconception and that no inherent power can add to the jurisdiction of any court where such has not been vested in the constitution or statute law. He relied on N.D.I.C v. F.M.B. (1999) 2 NWLR (Pt. 490) 735 AT 754, GOMBE v. PAW (NIG) LTD (1995) 6 NWLR (Pt. 402) 402 AT 422, INAKOJU v. ADELEKE (2007) 4 NWLR (1025) 427 AT 588-589, OLOBA v. AKEREJA (1988) 3 NWLR (Pt. 84) 508 and EGE SHIPPING & TRADING IND. v. TIGRIS INT. CORP. (1999) 14 NWLR (Pt. 637) 70.
He reacted on the Appellant’s contention that the provision of the Electoral Act cannot override Section 6(6)(b) of the 1999 CFRN (As Amended) to be a misconception. He similarly argued that the presentation of the forged certificate flowed from the Appellant’s main complaint. He submitted that the proper procedure is for the Appellant to file an election petition at the Governorship/Legislative Houses Election Tribunal and not under Section 6(6)(b) of the 1999 CFRN (As Amended). He argued that Section 6(6)(b) of the 1999 CFRN (As Amended) will not apply to the Appellant’s case by virtue of the express provision of Section 285 (1) (a) and (b) of the 1999 CFRN (As Amended) and Section 133 (1) (b) of the Electoral Act, 2010 (As Amended). That election petition is “sui generis”. He relied on KALU v. AZOR (2004) 12 NWLR (Pt. 886) 1 AT 20.
In response to the submission of the Appellant that the suit is a pre-election matter, he argued that since an election was conducted, the matter is a post-election petition and the appropriate venue for issues arising therefrom is the Election Tribunal and not the Federal High Court. He cited OLOFU v. IFODO (2010) 44 NSCQR 565. He further contended that assuming though not conceding that it is a pre-election matter, the Appellant by virtue of Section 31 (5) of the Electoral Act, 2010 (As Amended) ought to have filed an action at the Federal or State High Court before the conduct of the election.
It is his submission that the relevant limitation period is provided in Section 285(5) of the 1999 CFRN (As Amended) being within 21 days after declaration of the result. That in the instant appeal, the election was conducted on 26/4/2011 but the Appellant commenced action at the Federal High Court 6 Months after the said declaration thereby making it statute and time barred and consequently incompetent and dismissible. That non-compliance with limitation period is a fundamental defect and fatal to the competence of the petition which the Election Tribunal is robbed of its jurisdiction. He relied on KUMALIA v. SHERIFF (2008) ALL FWLR (Pt. 431) 1032 AT 1045-1046 and YUSUFU v. OBASANJO (2003) 16 NWLR (Pt. 847) 554 AT 609. He further submitted that the appropriate time for the ascertainment of the qualification of the 5th Respondent is at the time of the election as required by Section 31 (5) of the Electoral Act or after the election by filing a petition as required by Section 285 (5) of the 1999 CFRN (As Amended). He relied on EMELUWA v. ONUIGWE (2011) 13 NWLR (Pt. 1265) AT 456 RATIO 3. He therefore urged this court to dismiss the appeal as being academic.
I have considered this appeal in its entirety and particularly the arguments of the Appellant’s Counsel. Most importantly too are the reliefs sought by the Appellant from the trial court then and now, this court. The Appellant’s case is that it is a civil suit and not a pre-election petition matter, hence entertainable by the Federal High Court by virtue of Section 6(6)(b) of the 2011 CFRN (As Amended).
It is however observable that the Appellant who had a ground of appeal at pages 222-223 of the records formulated two (2) issues from the said single ground of appeal. It is elementary law that issues cannot be proliferated from a single ground of appeal. See KALU v. OHUABUNWA (2004) 7 NWLR (871) 1. However, the Respondents have not objected to that, the sleeping dog will lie.
All the reliefs of the Appellant at the trial court contained in pages 13-15 of the records are unarguably and loudly within the ambit and gamut of grounds of election petition provided under Section 138 of the Electoral Act, 2010 (As Amended), whose jurisdiction is competently and statutorily vested in the Election Petition Tribunal as provided in Section 285(2) of the 2011 CFRN (As Amended). What then constitutes pre and post election matters in Nigeria?
Olatubora, Aderemi, in “Electoral Law and Practice in Nigeria” written in Honour of Hon. Justice Salihu Modibo Alfa Belgore, 2006, Aderemi Olatubora & Co. Akure, Ondo, p.11-12, set the parameters for pre-election matters to encompass preparations towards election that often involved issues such as:
“registration of voters, updating of voters’ register, delineation of constituencies, formation of political parties and regulation of the conduct of such political parties; conduct of primaries by political parties for the purposes of selecting members of such parties who are to contest for political offices, nomination of candidates for offices and the screening of candidates for such offices to ascertain whether such candidates are qualified for elections to the relevant offices.”
While post-election matters are:
“complaints against the conduct of elections or what happened during the period within which conduct of elections lasted. There are however instances when the echoes of unresolved election matters still resonate in legal contests questioning the returns in elections. Whether for lack of adequate grasp of election petition procedure or for some other inexplicable reasons, it is not unusual to have election petitions complaining of issues such as nomination of candidates or invalidity of such nominations, and the issue of screening and clearing of candidates to contest election by the electoral commission.”
At this juncture, it is expedient to refer to the Appellants’ particulars, statement of claim particularly, paragraphs 5, 6, 7, 8, 10 and 11 hereby reproduced as follows:
“5. Prior to the said House of Assembly Election held on the 26th day of April, 2011 each of the candidates of the election swore to an affidavit in support of his/her personal particulars and same was filed/submitted to the Independent National Electoral Commission (INEC) subject to verification regarding the information supplied by the respective candidates to the Commission.”
“6. The 5th Defendant on his part filed (completed) the affidavit in support of his personal particulars which qualified him to contest the House of Assembly Election for the seat of Umunneochi State Constituency of Abia State. The said Affidavit sworn within the dominion of the High Court of Abia State sitting at Umuahia dated the 31st day of January, 2011, was submitted to Independent National Electoral Commission (INEC) for verification.”
“7. The 5th Defendant was at the material time of the election not qualified to contest the election or a candidate sponsored by the People’s Democratic Party (PDP) and properly verified by the Independent National Electoral Commission (INEC). The 5th Defendant has presented forged certificates to the Independent National Electoral Commission (INEC) by means of the affidavit in support of his personal particulars sworn to by the 5th Defendant on the 31st day of January, 2011.”
“8. The information supplied/furnished by the 5th Defendant to the Independent National Electoral Commission (INEC) were false. It was on the basis of these false information that the 5th Defendant was given credence by the Independent National Electoral Commission (INEC) to contest the election.”
“10. The 5th Defendant was verified by the Independent National Electoral Commission (INEC) and in spite of these false information presented to it by 5th Defendant on Oath found him eligible to contest the election. The Commission also went ahead to declare the 5th Defendant as the winner of that election and he was duly returned.”
“11. Upon the indication by the Plaintiff to challenge this wrongful election and return of the 5th Defendant, the Commission i.e. the 1st Defendant deliberately and fraudulently deleted the plaintiff’s name and that of his Political Party from the comprehensive/final list containing the results of candidates who contested the House of Assembly Election for the Umunneochi State Constituency of Abia State held on the 26th day of April, 2011.”
It is therefore clear that it is the case of the Appellant that a general election and not a primary election held on 26/4/2011 and the 5th Respondent was duly returned winner of the election. Based on the foregoing, I have no problem to hold that the matter of the Appellant and the reliefs sought thereto at the trial court at pages 7-15 of the records are but pure post-election matters which fall within and under the jurisdiction of the Election Petition Tribunal particularly encapsulated under Section 285 (2) of the 2011 CFRN (As Amended).
What then gives a court the jurisdiction to entertain a particular claim or subject matter? The jurisdiction of the courts been understood in the narrow and wider senses by the Supreme Court in ORUBU v. NEC (1988) 5 NWLR (Pt. 94) 323 AT 381 in the following terms:
“In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limit which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought or to any combination of these factors. In the wider sense it embraces also the settled practice of the court as to the way in which it will exercise its powers to hear and determine issues which fall within its “jurisdiction” (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has “jurisdiction” (in the strict sense) to grant, including its settled practice to refuse to exercise such power, or to grant such relief in particular circumstances.”
All the ingredients and conditions conferring jurisdiction of the said appeal in the Election Petition Tribunal and not the Federal High Court are present in the case of the Appellant. Hence, the Federal High Court cannot and does not have jurisdiction to entertain his suit. In OHAKIM v. AGBASO (2011) ALL FWLR (Pt. 553) 1806 AT 1850, it was held that any dispute arising out of the conduct of any election under the CFRN and the Electoral Act between the parties that contested or participated in the election, such a dispute is not a subject matter of the jurisdiction of the Federal High Court or any other court for that matter other than the Election Tribunal. See also OPIAH v. INEC & ANOR (2012) LPELR-20850(CA)
It must be noted that Section 6(6)(b) of the 2011 CFRN (As Amended) is applicable and will override Sections 133(2) and 134(1) of the Electoral Act only where there is no express statutory provision in the Constitution or another Statute conferring a particular thing to be done by the court or anybody; or where that particular provision is contrary to the provision of the Constitution. Similarly, the inherent powers of a court cannot confer jurisdiction on a court to entertain a matter expressly provided for in a statute; neither the Rules of court can vest jurisdiction in a court. See BUHARI v. INEC (2009) ALL FWLR (Pt. 459) 419 AT 554 PARAS B-C. Nonetheless, the Constitution has in fact expressly conferred the jurisdiction for post-election matters on the Election Petition Tribunal and not on the Federal High Court. Section 285(2) of the 2011 CFRN (As Amended) provides as follows:
“There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
Thus, the express mention of a thing is the exclusion of another, hence the maxim on the rules of interpretation of statutes “expressio unis est exclusio atterius.” The express mention of Section 285(2) of the 2011 CFRN (As amended) has excluded the general provision of Section 6(6)(b) of the 2011 CFRN (As amended). See INEC v. PDP (1999) 11 NWLR (Pt. 626) 174 AT 191.
It goes without saying that the proper and appropriate venue for ventilating the grievances of the Appellant is the Governorship and Legislative Houses Election Tribunal provided in Section 285(2) of the 2011 CFRN (As Amended).
Election petition is not, stricto sensu, a civil proceeding and cannot be described as such. A special law or Act, usually governs election petition procedure. The jurisdiction of the Tribunals under the law is also of a very special nature distinct from what obtains in an ordinary civil case. Election petition proceedings are special and special provisions are made to regulate them. It is appropriately described as a proceeding sui generis, meaning in Latin “of its own kind.” see YUSUF v. OBASANJO (2004) ALL FWLR (Pt. 213) 1884 and BUHARI v. YUSUF (2003) FWLR (Pt. 174) 329 AT 355. The Appellant’s Counsel is in great misconstruction of the provision of Section 6(6)(b) of the 2011 CFRN (As Amended) vis-a-vis Section 285(2) of the 2011 CFRN (As Amended). His complaints or grievances are not civil but civic and electoral in nature which strictly comes under the jurisdiction of the Election Petition Tribunal. What the Appellant is asking this court to do is to force jurisdiction on the Federal High Court to assume a post-election matter, which is totally against our law.
The Appellant has copiously pleaded and admitted in his brief of argument that the general election held on 26/4/2011 but his suit was filed at the Federal High Court on 26/10/2011. Aside the Appellant’s reliance on Section 6(6)(b) of the 2011 CFRN (As amended) to justify his cause of action and its presentation at the Federal High Court, his guts might have come also from Section 31 (5) of the Electoral Act, 2010 (As Amended) which provides thus:
“Any person who has reasonable ground to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.”
The above Section vests jurisdiction on the Federal High Court, High Court of a State or FCT to tackle pre-election issues and not post-election matters as in the instant case. Besides, if the prayers of the Appellant may be granted that his suit is civil and can be instituted in the Federal High Court; he has slept on his right, having filed it six (6) Months after the declaration of the result. In AGWU & ANOR v. EZE & ANOR (2012) LPELR-7885(CA), it was held that the qualification of a candidate at an election could be challenged before or after the conduct of the election and the announcement of the result.
Having determined that the appropriate venue for his complaint or petition was at the election tribunal, his suit was similarly filed outside the prescribed statutory period for filing election petition. Sections 285(5)(a) of the 1999 CFRN (As Amended) in pari materia with 134(1) of the Electoral Act, 2010 (As Amended) provides thus:
“An election petition shall be filed within 21 days after the date of the declaration of results of the elections.”
It is not disputable that the result was declared on 26/4/2011 but the Appellant filed his suit at the Federal High Court (which is not seized with jurisdiction on election petitions) on 26/10/2011, six (6) Months thereafter. I do not need a calendar or calculator to ascertain that it is statute and time barred with no remedy in law. In EGBE v. ADEFARASIN (2002) 14 WRN 57 AT 4, the Supreme Court held:
“A statute of limitation removes the right to action, the right of enforcement, the right to judicial relief and leaves the Plaintiff with a bare and empty cause of action which he cannot enforce.”
This Court pardons the want of grasp of the law and procedure on election matters and proceedings and the time wastage by the Appellant’s Counsel. Consequently, I align myself with the arguments of the Respondents and the Ruling of the trial court is unassailable. The Appellant is praying this Honourable Court to perform an impossible thing. This court is handicapped, neither can it foist jurisdiction on the Federal High Court to entertain a petition that is statutorily forbidden to handle.
This issue is resolved against the Appellant. The appeal is vexatious and lamentable and is hereby dismissed. I order costs of N100,000.00 each in favour of the 1st – 4th Respondents and the 5th Respondent respectively against the Appellant.
PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) J.C.A. I agree with all the reasoning and conclusions therein, particularly the fact that the Appellant’s suit filed at the Federal High Court is both statute barred and timed barred. I too hold that this appeal lacks merit and is hereby dismissed. I award costs of N100,000.00 each in favour of the 1st-4th Respondents and 5th Respondent respectively against the Appellant.
PETER OLABISI IGE, J.C.A.: I have seen and read the judgment delivered by my Lord UWANI MUSA ABBA AJI (PJ) and I fully endorse his reasoning and conclusions therein.
Appearances
M. C. Nwosu, Esq. – Appellant absentFor Appellant
AND
S. Nwigboke, Esq. – 1st to 4th Respondents
Isaac Anya, Esq. – 5th RespondentFor Respondent
