PEOPLES DEMOCRATIC PARTY V. DR. EMMANUEL ONWE & ORS.
In The Supreme Court of Nigeria
On Friday, the 28th day of January, 2011
SC.283/2010
RATIO
INTERPRETATION: INTERPRETATION OF SECTION 285(1)(a) OF THE 1999 CONSTITUTION
The section has been interpreted by this Court in a number decisions. In EDEDO Vs INEC (2008) 17 NWLR (part 1117) 554 at 602 this Court per Niki Tobi interpreted Section 285(1) of the constitution as follows:-
“It is not my understanding of Section 285(1)(a) of the Constitution that the subparagraph can accommodate pre-election matters. It is rather my understanding that the subparagraph provides for determination of whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub-paragraph provides for election matters which gives rise to post-election and not pre-election proceedings. As the reliefs sought by the Appellants are pre-election matters, section 285(1)(a) could not avail him as the sub-paragraph does not provide for litigation arising from party primaries….”
Section 285(1)(a) of the Constitution was also given interpretation in AGBAKOBA VS. INEC (2008) 18 NWLR (Part 1119) 489 at 554 which I reproduced in SC.282/2010. PER M. MUKHTAR, J.S.C
JUSTICES
FRANCIS FEDODE TABAI Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MOHAMMED Justice of The Supreme Court of Nigeria
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
Between
PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
- DR. EMMANUEL ONWE
2. SENATOR JULIUS UCHA
3. RETURNING OFFICER, EBONYI CENTRAL SENATORIAL DISTRICT
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. THE CLERK OF THE NATIONAL ASSEMBLY Respondent(s)
FRANCIS FEDODE TABAI, J.S.C: (Delivering the Leading Judgment): This appeal is identical with appeal No. SC.282/2010 which I have earlier disposed of. The parties are the same and the cause of action also the same. The only difference is that, the Appellant herein the People Democratic Party (PDP) is the 4th Respondent in SC.282/2010, while the 2nd Respondent herein SENATOR JULIUS ALL UCHA was the Appellant in SC.282/2010. The cause of action was the PDP’s nomination exercise in December, 2006 for the choice of its flag bearer representing Ebonyi Central Senatorial District for the 21st of April, 2007 elections.
The case of the Petitioner DR. EMMANUEL ONWE who was the 1st Appellant at the Court below and the 1st Respondent herein was that he was the duly nominated candidate of the Appellant (People Democratic Party) representing Ebonyi Central Senatorial District at the party’s primary election held on the 2nd of December, 2006, and that he was by that fact of his nomination presumed in law to be the candidate that contested the election of the 21st April, 2007 under the PDP and that he should be declared the Senator representing the Ebonyi central senatorial District in the Senate and not the 2nd Respondent, Senator Julius Ali Ucha.
The case of the Appellant, on the other hand, was that the 2nd of December, 2006 primaries of its flag bearer for the Ebonyi Central Senatorial District was inconclusive as it was marred by violence insecurity and thuggery which was therefore cancelled. That in the rescheduled primaries held on the 14th of December, 2006, the 2nd Respondent was nominated by a consensus vote of 604. In paragraphs 1 and 2 of its reply to the petition, the Appellant raised the issue of the 1st Respondent’s lack of locus standi to bring this petition and the Tribunal’s lack of jurisdiction to entertain same.
Earlier, on the 13th of June, 2007, the Appellant as 4th Respondent filed an application for an order striking out the petition on the following grounds:-
“1. That the Tribunal lacks the jurisdiction to entertain the petition in that the subject matter cause of action therein are matters or events preceding the election of the 21st April, 2007 and as well an intra party affair;
2. The said petition is incompetent in that the petitioner has no locus standi to present the petition.”
This application was however refused and the petition was tried on the merit. In its judgment on the 13th of September, 2007, the Tribunal dismissed the petition. Surprisingly it was dismissed on the very ground of the Tribunal’s lack of jurisdiction, the cause of action being a pre-election matter.
The petitioner proceeded on appeal to the Court below against the judgment of the Tribunal. In its judgment on the 16th, of July, 2010, the appeal was allowed with the following orders:-
“1. This appeal is allowed.
2. The result, election and return of the 1st Respondent – Senator Julius Ali Uche for the Ebonyi Central Senatorial Election conducted on the 21st April, 2007 are hereby nullified.
2. The Appellant – Dr. Emmanuel Onwe is hereby declared as the winner of the Ebonyi Central Senatorial election.”
“The 4th Respondent (PDP) has now come on appeal against the judgment of the Court of Appeal.
As I stated at the beginning of this judgment, this appeal is identical with the appeal in SC.282/2010. Both appeals turn on the interpretation of Section 285(1)(a) of the 1999 Constitution. The section has been interpreted by this Court in a number decisions. In EDEDO Vs INEC (2008) 17 NWLR (part 1117) 554 at 602 this Court per Niki Tobi interpreted Section 285(1) of the constitution as follows:-
“It is not my understanding of Section 285(1)(a) of the Constitution that the subparagraph can accommodate pre-election matters. It is rather my understanding that the subparagraph provides for determination of whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub-paragraph provides for election matters which gives rise to post-election and not pre-election proceedings. As the reliefs sought by the Appellants are pre-election matters, section 285(1)(a) could not avail him as the sub-paragraph does not provide for litigation arising from party primaries….”
Section 285(1)(a) of the Constitution was also given interpretation in AGBAKOBA VS. INEC (2008) 18 NWLR (Part 1119) 489 at 554 which I reproduced in SC.282/2010.
I have no cause to depart from these authorities which I therefore adopt. The dispute which gave rise to the petition was the Appellant’s nomination/substitution exercise of December, 2996. It is clearly an intra party pre-election dispute and has nothing to do with the election of 21st of April, 2007 over which therefore the Election Tribunal had no jurisdiction. Being a pre-election matter, only the Federal High Court or a State High Court has jurisdiction.
In conclusion, I allow the appeal. Both the trial election tribunal and the Court of Appeal had no jurisdiction and so the petition ought to have been struck out. The proceedings including the judgment of both the Tribunal and the Court of Appeal are null and void and same are hereby set aside. The originating petition is accordingly struck out for want of jurisdiction.
I. T. MUHAMMAD, J.S.C: I had the advantage of reading the judgment delivered by my learned brother Tabai, JSC. I agree with my Lord’s conclusion that the appeal be allowed. I abide by all the consequential orders contained therein.
M. S. MUNTAKA-COOMASSIE, J.S.C: Having had the opportunity before today of reading the lead judgment of my learned brother Francis Tabai JSC which he has just delivered. I entirely agree with his conclusions that this appeal is pregnant with merit and same is allowed. I abide by the consequential order made by my learned brother in the lead judgment including that of costs.
The facts in this appeal are the same with the facts in SC.282/2010.The judgment in this appeal will abide by the earlier one.
Appeal is allowed.
J. A. FABIYI, J.S.C: I have read before now the judgment just delivered by my learned brother – Tabai, JSC. I agree with the conclusion therein that the appeal be allowed. I endorse the consequential orders made in the lead judgment.
BODE RHODES-VIVOUR, J.S.C: The issue in this appeal is substitution, a pre-election matter. The proper court to initiate proceedings is the Federal High Court and not an Election Petition Tribunal as was done in this case. Accordingly the judgment delivered by the Election Petition Tribunal on a pre-election matter is a nullity.
The fact that appeals on election matters terminate in the Court of Appeal does not apply here as appeals on issues of substitution terminates in this court. This Court thus has jurisdiction to make pronouncements on pre-election matters (in this case substitution).
Both judgments of the two courts below are nullities.
For this reasoning I would allow the appeal.
Appearances
Emeka Etiaba;
Lynda Ikpeazu (Miss);
T. Nweke;
Prisca Ozoikesike For Appellant
AND
Emeka Mozie;
Ike Obidike;
Tony Mozie.
Prof. I.A. Okafor, SAN;
C. Okafor;
N. Amagbor.
Alex Ejisaeme For Respondent
