JAMES ABAWU WATHARDA v. MAINA ULARAMU & ORS
(2014) LCN/7020(CA)
RATIO
ELECTION: WHETHER A COURT HAS THE COMPETENT JURISDICTION TO ENTERTAIN A PRE-ELECTION MATTER FILED AFTER THE CONDUCT OF THE ELECTION
The only point of difference between the Appellant and the 1st and 3rd Respondents, is to effect that there is no statute of limitation limiting the time of filing a pre-election matter to the date or time of conduct of an election. As the Appellant maintained that pre-election matter must be filed before the conduct of an election, and relied on the cases of Amaechi V INEC (supra), Hassan V Aliyu (supra) and Salim V CPC (supra). The 1st Respondent on the other hand, is of the view that the aforementioned cases cited by the Appellant have not made any pronouncement to the effect that pre-election matter must be filed before the election is conducted. The 1st Respondent made further reference to section 6(6)(b) and 36(1) of the 1999 Constitution and relevant provisions of the Electoral Act and the Adamawa State Electoral Law 2002, to contend that there is no provision limiting the filing of a pre-election matter to the date of an election.
The Local Government election in the instant appeal was conducted on the 26th November, 2012. The action by way of Originating Summons culminating in this appeal was filed on 20th December, 2012, after the conduct of the election. From the foregoing, two facts are therefore clear, namely that the action in the lower Court was a pre-election matter challenging substitution of 1st Respondent and it was filed after the election was conducted.
The Apex Court in Hassan V Aliyu (supra) at page 604, per Muntaka-Coomassie JSC, had this to say:- “Substitution and nomination being pre-election matters, the candidate must approach the competent Court to seek for the enforcement of his rights before the real election takes place. This was the position in Amaechi V INEC (2008) 5 NWLR (pt.1080) 227. Immediately the candidate was substituted, Amaechi did not wait for the election to hold before he sought redress; hence, if the election thereafter took place after the filing of the action having become subjudice, it remains a pre-election matter even if the matter is brought to this Court.
On the other hand, where the candidate who was substituted did not take steps to seek redress before the election took place, and a candidate declared as the winner, and thereafter seeks to be declared as the winner of the election, it is my view that the matter is no longer a pre-election matter. That is, his right to pursue a pre-election matter ceases after the holding of the election except only, if the action is instituted before the holding of the election.”(emphasis mine)
Again and in line with the earlier position, the Apex Court in Salim V CPC (supra) at page 524- 525 per Peter- Odili, JSC emphasized thus:- “In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates at election precede election and are therefore pre-election matters. The instant situation where the Appellant as Plaintiff did not complain to the Court before the election and even 38 days after the election, to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election (and) can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent and no longer alive to be adjudicated upon by any of those Courts above mentioned……………
Indeed, the matter is settled that the High Court lacked jurisdiction, which situation affected the process in the lower court and also this apex court. Just as those two lower Courts said there is no jurisdiction and I join them in saying, this apex Court has no jurisdiction either.” (parenthesis mine)
The issue is not as simply argued by the 1st Respondent to the effect that the authorities cited have not made pronouncement, limiting time for filing pre-election matters to the date of election. The wisdom behind limiting the time to the date of election is that the question of substitution, nomination and sponsorship of candidate will cease to exist once an election is conducted. Hence a pre-election must be filed before the election is conducted. Once the election is conducted and an action in a pre-election matter is not filed, it becomes stale and is spent. The only recourse for a party in such circumstance is to try his luck in the Election Petition Tribunal because the status of the matter has changed to post election, clearly outside the ambit of the State High Court, Federal High Court or High Court of the FCT. The lower Court got its bearing wrong, certainly it had no jurisdiction over the matter. Per ADAMU JAURO, J.C.A
