RT. HON. GOODLUCK NANA OPIAH V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR
(2012)LCN/5753(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/OW/48/2012
ELECTION PETITION: EFFECT OF FILING AN ELECTION PETITION
“an election petition is meant to question the election of a candidate returned as victor. The petition must show this fact….” Per OWOADE, J.C.A
JURISDICTION: HOW TO DETERMINE WHETHER A COURT HAS JURISDICTION
“…it is now settled law that in considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it critically looking at the Writ of Summons and the Statement of Claim. Gafar vs. Govt. of Kwara State (2007) 4 NWLR (Pt. 1024) 375 SC, Onuorah vs. K.R.P.C. (2005) 6 NWLR (Pt. 921) 393 SC, Tukur vs. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 SC, Onyenachiya vs. Mil. Adm.. Imo State 1 NWLR (Pt. 482) 429 C. A., Multi-Purpose Ventures Ltd. Vs. A-G., Rivers State (1997) 9 NWLR (Pt. 977) 587 SC and Lufthansa Air Lines vs. Odiese (2006) 7 NWLR (Pt. 978) 39 CA. In this respect, I must state categorically that contrary to the suggestion of the learned counsel for the 2nd Respondent, that the issue of jurisdiction could be determined by looking at the Statement of Defence, that though it is sometimes necessary for the court to hear some evidence first for the purpose of determining the issue of jurisdiction; where however, pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the plaintiff’s pleading, that is, his statement of claim and not on the defendant’s statement of defence. See Onuorah vs. K. R. P. C. (supra), A-G, Kwara State vs. Olawale (1993) 1 NWLR (Pt. 272) 645 SC and Izenkwe vs. Nnadozie (1953) 14 WACA 361.” Per OWOADE, J.C.A
JURISDICTION: MEANING AND NATURE
“What then is ‘Jurisdiction’ Jurisdiction as a concept in law is an authority which a man has by a power to do justice in causes of complaint made before him. In its narrower sense, the jurisdiction of a validly constituted court connotes the limits which are imposed upon its powers 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 issues are joined and (3) to the kind of reliefs sought to any combination of these factors. The concept widely embraces the settled practice of the courts as to the way in which they will exercise their discretions to hear and determine issues within their powers or as to the circumstances in which they will grant a particular kind of relief which they have power to grant. These include their discretions to refuse to exercise such powers or to grant such reliefs only in particular circumstances. See, Owoade T.O. Jurisdiction in Administrative Law page(ii) Caltop (2001). In the context of case law, in Attorney-General, Lagos State vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552 SC. Jurisdiction was defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined or to the kind of relief sought.” Per OWOADE, J.C.A
JURISDICTION: WHAT IS THE SOURCE OF A COURTS JURISDICTION
“The Constitution and statutes which setup the Courts cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to adjudication. See Madukolu vs. Nkemdilim (1962) 2 SCNJ 341 at 348.” Per ABBA AJI, J.C.A
JUSTICES
UWANI ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
RT. HON. GOODLUCK NANA OPIAH Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. HON. LUKE CHUKWU Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of F.A. Olubanjo, J. delivered on 26/1/2012 in the Owerri Judicial Division of the Federal High Court.
On the 11th of May 2011, the Appellant as plaintiff before the lower court filed an originating summons whereby he claimed against the 1st Respondent for declaratory and injunctive orders from the court. The 2nd Respondent (herein) was later joined in the suit as 2nd Defendant. By his Amended originating summons filed on 6/6/2011, the Appellant as plaintiff as against the Respondents asked the court to determine the question:
“Whether having regard to Section 68(1)(c) of the Electoral Act, 2010 as amended, the declaration made by the Returning Officer for Ohaji/Egbema State Constituency that the plaintiff scored the highest number of votes at the Imo State House of Assembly election for the said State Constituency held on 26th April 2011 and thereby returned him as the winner and issued him with Form EC8E(i), it is legal and lawful for the defendant to purport to organize or to hold a “supplementary election” or any other election by whatever name so-called for the same state constituency to elect another person as a member of the Imo State House of Assembly on 6th May 2011.”
The Appellant as plaintiff in the Amended Originating Summons claimed the following reliefs:
“1. A declaration that by virtue of Section 68(1)(c) of the Electoral Act 2010, as amended, the Returning Officer for Ohaji/Egbema State Constituency having declared the plaintiff scored the majority of lawful votes at State House of Assembly election for Ohaji/Egbema State Constituency in Imo State held on 26th April 2010 and thereby returned him as the winner and issued him with Form EC8E(i), it is illegal and unlawful for the 1st defendant to purport to organize or to hold a supplementary election” or any other election by whatever name so-called for the same State Constituency on 6th May 2011 to elect another person or the 2nd defendant as a member for the Imo State House of Assembly.
2. A declaration that the 1st defendant has no power under the law to issue a certificate of Return to I any person including the 2nd defendant other than to the plaintiff consequent upon the return of the plaintiff at the Imo State House of Assembly election held on 26th April, 2011 for the said Ohaji/Egbema State Constituency.
3. An ORDER OF MANDATORY INJUNCTION compelling the 1st defendant to issue the plaintiff with a certificate of Return, the plaintiff having been duly returned and elected at the Imo House of Assembly election of Ohaji/Egbema State Constituency of Imo State held on 26th April 2011.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant from in any manner however or whatsoever, issuing any certificate of Return to any other person including the 2nd defendant consequent upon the holding of any purported “supplementary election” or any other House of Assembly election whatsoever for the said Ohaji/Egbema State Constituency purportedly held on 6th May 2011.”
The Appellant’s originating summons in the court below was supported by a 16 paragraph affidavit sworn to by one Mike Onyekachi, Esq, a legal practitioner in the law firm of Livy Uzoukwu, SAN & Co of counsel to the plaintiff and another 16 paragraph Further Affidavit in support of the originating summons by the same Mike Onyekachi, Esq filed on 7/7/2011.
The parties exchanged processes and Written Addresses, but in particular the 2nd respondent filed a Notice of Preliminary Objection dated 13/6/2011 on 16/6/2011. Therein, the 2nd respondent prayed the court below to strike out the Plaintiffs/Appellant suit for incompetence and lack of requisite jurisdiction to hear and determine the Plaintiffs/Appellant suit being an election dispute.
The grounds of objection of the Notice of Preliminary Objection are as follows:
“1. The plaintiffs suit is an election dispute, which the Imo State House of Assembly Election Tribunal has Exclusive jurisdiction, pursuant to Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to hear and determine.
2. That the plaintiff can only seek redress in respect of an election dispute or matter, by way of ‘petition proceedings’ as stated in Section 68(1) of the Electoral Act, 2010 (as amended)
3. Pursuant to the Supreme Court decision in Ohakim vs. Agbaso (2011) All, FWLR (Pt. 553) 1806 at 1845.
In a considered Ruling after consideration of Written Addresses delivered on 26/1/2012, the learned trial Judge held that the 2nd defendant’s Notice of Preliminary Objection dated 13/6/2011 succeeds and accordingly struck out the Amended Originating Summons filed on 6th June 2011.
In so doing, the learned trial Judge held inter alia at page 259 of the record that:
“The plaintiff, by this Amended Originating Summons, wants this court to make pronouncements regarding the elections of 26th of April 2011 and the supplementary elections of 6th May 2011 and the status of the persons who scored the highest number of votes in those two elections. This to my mind goes beyond merely interpreting Section 68(1)(c) of the Electoral Act 2010 (as amended) in the light of the plaintiff’s Exhibit ‘A’ i.e. Form EC8E(i).
It goes beyond merely making declaratory or injunctive orders pursuant to the provisions of Section 75(2) of the Electoral Act (supra) as argued by the Learned Senior Advocate.”
The learned trial Judge continued:
“What the plaintiff is actually, though very expertly and covertly, doing is questioning the validity of the supplementary election of 6th May 2011 based on Exhibit ‘A’ attached to his Affidavit in Support, and he is definitely questioning the return and election of the 2nd defendant as member representing Ohaji/Egbema State Constituency in the Imo State House of Assembly as well as the issuance of a certificate of return to that person (i.e. 2nd defendant) since he is on the belief that himself and not the 2nd defendant ought to have been issued with a certificate of return.”
And, still at page 259, the learned trial Judge concluded that portion of her judgment as follows:
“It would therefore mean that a more appropriate and indeed the proper manner of seeking redress for the plaintiff’s grievances would be for him to file a petition under the provisions of Section 133(1) and 138(1) of the Electoral Act (supra) not against himself, but rather, against the 2no defendant before the Imo State House of Assembly Election Tribunal as provided by Section 285(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), while presenting to that tribunal the fact of the existence of Exhibit ‘A’ which he believes entitles him to be issued with a certificate of Return by the 1st defendant.”
Dissatisfied with this Ruling, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal before this court on 8th February 2012. The Appellant’s grounds of appeal together with their particulars are reproduced hereunder:
Error In Law
The Learned Trial Judge erred in law when it held as follows:
“The plaintiff by this Amended Originating Summons, wants this court to make pronouncements regarding the elections of 26 of April 2011 and the supplementary elections of 6 May 2011 and the status of the persons who scored the highest number of votes in those two elections.
This to my mind goes beyond merely interpreting Section 68(1)(c) of the Electoral Act 2010 (as amended) in the light of the plaintiff Exhibit ‘A’ i.e Form EC8E(1).
It goes beyond merely making declaratory or injunctive orders pursuant to the provisions of Section 75(2) of the Electoral Act (supra) as argued by the Learned Senior Advocate.”
PARTICULARS OF ERROR
1. It is the plaintiff’s case that determines jurisdiction.
2. The sole question the Appellant as plaintiff sought in the court below was centered on the interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended).
3. The case also calls for the interpretation and application of Section 75(2) of the Electoral Act 2010 (as amended).
4. The lower court in the circumstances had the jurisdictional competence to interpret the sole question and award any relief or reliefs as appropriate.
5. The lower court was not invited to determine who won majority of the lawful votes cast in any election.
6. The Appellant had been duly returned what remained was the issuance of the Certificate of Return.
GROUND 2
Error In Law
The Learned Trial Judge erred in law when it held thus:
“What the plaintiff is actually, though very expertly and overtly doing is that he is questioning the validity of the supplementary elections of 6 May 2011 based on Exhibit ‘A’ attached to his Affidavit in Support, and he is definitely questioning the return and election of the 2nd defendant as member representing Ohaji/Egbema State Constituency in the Imo State House of Assembly as well as the issuance of a certificate of return to that person (i.e 2nd defendant) since he is of the belief that himself and not the 2nd defendant ought to have been issued with a certificate of return.”
PARTICULARS OF ERROR
1. The lower court misconceived the import and purport of the case before it.
2. There was no evidence placed before the lower court that a Certificate of Return and been issued to the 2nd defendant.
3. The case is primarily predicated on the interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended); and secondarily on the interpretation of Section 75(2) of same Act.
4. There was no disqualifying factor that prevented the lower court from adjudicating on the claims as formulated by the Appellant.
5. The lower court erred when it failed to determine a very crucial issue, that is, whether it is “a court of competent jurisdiction” within the scope and intendment of Section 75(2) of the Electoral Act 2010.
GROUND 3
Error In Law
The Learned Trial Judge erred in law when it held as follows:
“It would therefore mean that a more appropriate and indeed the proper manner of seeking redress for the plaintiffs grievances would be for him to file a petition under the provisions of Section 133(1) and 138(1) of the Electoral Act (supra) not against himself, but rather, against the 2nd defendant before the Imo State House of Assembly Election Tribunal as provided by Section 285(1) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), while presenting to that tribunal the fact of the existence of Exhibit ‘A’ which he believes entitles him to be issued with a Certificate of Return by the 1st defendant.
PARTICULARS OF ERROR
1. The Appellant had been duly returned at a duly conducted election.
2. However, he was not issued with a Certificate of Return.
3, Section 68(1) and 75(2) of the Electoral Act 2010 (as amended) prescribed the consequences in the circumstances.
4. The issuance of a Certificate of Return after a duly conducted election is a post-election matter which is not contemporaneous with the conduct of election.
5. An election Tribunal is not an all purposes court that can entertain all sorts of claims or reliefs.
GROUND 4
Error In Law
The Learned Trial Judge erred in law when it held as follows:
“This is an election matter and not a post election matter as skillfully argued by Learned Silk representing the plaintiff. Even though the Amended Originating Summons has been expertly crafted to mask the real issues involved, which I had earlier mentioned, the plaintiffs claim is not as elementary as a mere interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended) in the light of Form EC8E(1) i.e the plaintiffs Exhibit ‘A’, it is more than that. This court is not an election tribunal, neither does it by any stretch of imagination or interpretation of statute possess jurisdiction to adjudicate over election matters such as this one.
The subject matter of the plaintiffs claim is predicated upon the conduct of the election of 26th April 2011, the supplementary election of 6th May 2011 and their aftermath. This court does not possess jurisdiction to adjudicate thereon.”
PARTICULARS OF ERROR
1. The Appellant was returned as a victor at an election and under the law he cannot file a petition against himself.
2. The refusal of the lower court to consider, interpret and apply the provisions of Section 68(1)(c) and Section 75(2) of the Electoral Act 2010 Act occasioned grave miscarriage of justice.
3. The lower court misconceived the real issue before it which was the failure to issue the Appellant with a Certificate of Return.
GROUND 5
Error In Law
The Learned Trial Judge erred in law when it held thus:
“This court, being the Federal High Court, and not an Election Tribunal does not possess the jurisdiction to hear and determine the plaintiffs claim. It is rather the Imo State House of Assembly Election Tribunal which possesses jurisdiction to adjudicate.
It also follows that, having resolved the issue of jurisdiction in favour of the 2nd defendant, there is no need to proceed to consider the plaintiffs Amended Originating Summons since it is trite that, no matter how well conducted and determined a matter may be, once the court lacks jurisdiction, the proceedings therein are nullity.”
PARTICULARS OF ERROR
1. The Appellant’s claim was clearly within the jurisdictional competence of the lower court to determine.
2. The Appellant’s case being an Originating Summons, the lower court ought to have considered the merit of the suit in case an appellate court does not agree with the lower court’s decision to decline jurisdiction to hear the case.
The relevant briefs of argument for this appeal are as follows:
1. Appellant’s brief of argument dated 30/3/2012 and filed on 5/4/2012 – settled by Dr. Livy Uzoukwu SAN.
2. 1st Respondent’s brief of argument dated 8/10/2012 and filed on 9/10/2012- settled by Bertha l. Amadi, Esq.
3. 2nd Respondent’s brief of argument incorporating Notice of Intention to contend that the judgment should be affirmed on Additional Grounds dated 15/10/2012 and filed on 17/10/2012 – settled by Uche Wisdom Durueke, Esq.
4. The Appellant’s Reply brief to the 2nd respondent’s brief incorporating Reply to the 2nd Respondent’s Notice dated 24/10/2012 and filed on 29/10/2012 settled by Dr. Livy Uzoukwu, SAN.
In this appeal, the Appellant nominated a sole issue for determination to wit:
“Whether the trial court was right when it held that it lacked the jurisdiction to hear and determine the appellant’s Amended Originating Summons?
Learned counsel for the 1st Respondent also suggested a sole issue for determination, that is:
“Whether the learned trial Judge was right to have declined jurisdiction on a matter that is purely electoral in nature”
The 2nd respondent proposed two issues for determination:
1. Whether the plaintiff’s action is one that the Federal High Court could have heard and determined on its merit?
2. If the Plaintiff/appellant’s action is a post-election dispute, whether the Federal High Court has the requisite jurisdiction to hear and determine it?
This appeal shall be decided on the sole issue formulated by the appellant. Also, for reasons of shared common interest between the Respondents, the submissions of the appellant shall be considered on one side while the submission of the two sets of Respondents shall be treated together on the other side of the scale.
On the sole issue for determination, learned senior counsel for the appellant submitted that it is trite that it is the appellant’s claim that determines the question of the court’s jurisdiction. It is not what a defendant perceives to be his own defence.
He referred to the cases of Adams vs. U.mar (2009) 5 NWLR (Pt.1133) 41 at 124, Adeogun vs. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 at 191. Learned SAN, Dr. Livy Uzoukwu for the Appellant submitted that the case as formulated by the Appellant in his summons and the affidavit in support is that the said election was conclusive and on the basis of which he demanded for the issuance of the Certificate for Return thereof.
The Appellant’s case, said counsel is anchored on one question and in consequence, the Appellant sought two (2) declaratory reliefs and two (2) injunctive reliefs. That, the sole question is centered on the interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended). That, the sole defendant when the summons was issued was the 1st Respondent, a Federal agency. The 2nd Respondent came to the proceeding on his own application.
Learned senior counsel for the Appellant submitted that the reliefs were primarily based on the outcome of the said interpretation of Section 68(1)(c) aforesaid and the right of the Appellant to be issued with a Certificate of Return.
That, in the light of the foregoing, the Appellant clearly deposed inter alia as follows:
“1. That having declared the plaintiff winner and. returned him as elected, it became a complete and final act that only a court of competent jurisdiction or tribunal could return same.
2. That the plaintiff was not issued with a certificate of Return as required by law.
3. That at the end of 7 days which is the maximum stipulated number of days under the law within which to issue the plaintiff with a certificate of Return, the defendant did not issue the plaintiff with the said Certificate of Return.
4. That, the plaintiff, through a letter from his solicitors on 3rd May 2011, demanded for the issuance of the said certificate by the defendant. The letter is hereby attached and marked as Exhibit B.
5. That the plaintiff on the 5th May 2011, made a further demand on the defendant. The defendant again treated the said letter with contempt and never reacted to same. A copy thereof is also attached hereto and marked as Exhibit ‘C’
Learned senior counsel referred to the provision of Section 68(1)(c) of the Electoral Act 2010 (as amended) which enacts as follows:
“68(1) The decision of the returning Officer on any question from or relating to
(c) Declaration of scores of candidates and the return of a candidate shall be final subject to review by a Tribunal or Court in an election petition proceeding under this act.”
Learned senior counsel asked rhetorically, was any such declaration as stipulated in the above provision made in favour of the appellant?
The Appellant, he said, stated in his summons and affidavit that such a declaration was made. And, then he attached the declaration, as Exhibit ‘A’, one Nwoke Ngozi Valentine inter alia certified that he “was the Returning Officer for the Ohaji/Egbema State Constituency election held on the 26th day of April 2011. In paragraph 4 thereof he stated:
4. That Goodluck Nana Opia of People Democratic Party having satisfied the requirements of the law and scored the highest number of votes, is hereby declared the winner and is returned elected.
Learned senior counsel asked what then follows after the declaration? The answer, he said is to be found in Section 75 of the Electoral Act 2010 (as amended). That, Section 75(1) thereof provides as follows:
“75(1) A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act
Provided that where the Court of Appeal or the Supreme Court being the final appellate court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the commission shall, within 48 hours after the receipt of the order of such court, issue the successful candidate with a valid Certificate of Return.
The Appellant, according to counsel, says that the 2nd respondent refused to issue him a Certificate of Return aforestated which he was entitled to on the basis of Exhibit A. Counsel further asked: What was he expected to do in the circumstances. The answer, he said is in Section 75(2) of the Electoral Act aforesaid. lt provides thus:
“Where the commission refuses or neglects to issue a certificate of Return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto be sufficient for the purposes of swearing-in a candidate declared as the winner by the court.”
Counsel argued that the implication of the 2nd Respondent’s objection is that the trial court is not “a court of competent jurisdiction” envisaged by the provisions of Section 75(2) of the Electoral Act, 2010, as amended.
Learned senior counsel for the Appellant then set out the relevant provisions of Sections 251(1), 285(2) of the 1999 Constitution (as amended) and Sections 133(1) and 138 of the Electoral Act 2010 (as amended). He argued that the reliefs sought by the Appellant are within the intendment of Section 251(1) of the 1999 Constitution (as amended). He questioned, that having regard to Section 285(2) of the 1999 Constitution (as amended), could the Appellant have filed a petition before the Election Tribunal against himself seeking a determination whether he was validly elected?
Such an absurdity, said counsel, is outside the contemplation of Section 285(2) of the said Constitution.
Counsel further questioned, does the Appellant come within the scope, intendment and province of Section 133(1) of the Electoral Act 2010 (as amended)? Could the Appellant have filed an election petition complaining that his own return or election was “undue”?.
That, under Section 133(1) of the Act aforesaid, “a person elected or returned is joined as a party” can the Appellant be a respondent in a petition he ought to have filed?
He argued that assuming we stretched absurdity beyond limits and the appellant was to file an election petition in respect of the election of 26th April, 2011, what could be the ground(s) of the petition under Section 138(1) of the said Act?
Counsel submitted that it is obvious that the facts of the Appellant’s case are totally outside the compartmentalization of Section 138(1) of the Electoral Act (as amended).
The trial court, said counsel, with deep respect, misconceived the case of the appellant when it held as follows (page 259 of the Record):
“The plaintiff by this Amended Originating Summons, wants this court to make pronouncements regarding the elections of 26 of April 2011 and the supplementary elections of 6 May 2011 and the status of the persons who scored the highest number of votes in those two elections. This to my mind goes beyond merely interpreting Section 68(1)(c) of the Electoral act 2010 (as amended) in the light of the plaintiffs Exhibit ‘A’ i.e. Form EC8E(1).
It goes beyond merely making declaratory or injunctive orders pursuant to the provisions of Section 75(2) of the Electoral Act (supra) as argued by the Learned Senior Advocate… … ….”
Learned senior counsel emphasized that the sole question the Appellant as plaintiff sought in the court below was centered on the interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended).
And, that the case also calls for the interpretation and application of Section 75(2) of the Electoral Act 2010 (as amended).
That, the lower court in the circumstance had the jurisdictional competence to interpret the sole question and award any relief or reliefs as appropriate.
Counsel submitted that the lower court was not invited to determine who won majority of lawful votes cast in any election. Since the Appellant had been duly returned what remained was the issuance of Certificate of Return.
Learned senior counsel quoted the court below as saying that “the Appellant in his summons was very expertly and overtly questioning the validity of the supplementary election of 6th May 2011 and the return of the 2nd Respondent whom the trial court said had been issued with a Certificate of Return” See, page 259 of the Record.
The lower court, said counsel, misconceived the import and purport of the case before it. There was no evidence placed before the lower court that a Certificate of Return had been issued to the 2nd Respondent. The case, he said is primarily predicated on the interpretation of Section 68(1)(c) of the Electoral Act 2010 (as amended) and secondarily on the interpretation of Section 75(2) of the Act. Counsel added, there was no disqualifying factor that prevented the lower court from adjudicating on the claims as formulated by the Appellant. He opined, that the lower court erred when it failed to determine a very crucial issue, that is, whether it is “a court of competent jurisdiction” within the scope and intendment of Section 75(2) of the Electoral Act 2010 (as amended). He added, that the trial court, with respect was in error when it held that the Appellant should have filed an election petition.
Learned senior counsel submitted that the incontrovertible fact on record is that the Appellant had been duly returned at a duly conducted election. That, however, he was not issued with a Certificate of Return. He said, Section 68(1)(c) and 75(2) of the Electoral Act 2010 (as amended) prescribed the consequences in the circumstances. The issuance of a Certificate of Return after a duly conducted election is a post-election matter which is not contemporaneous with the conduct of election. An election Tribunal is not an all purposes court that can entertain all sorts of claims and reliefs.
Counsel submitted that the point they have been making is that the appellant could not have competently ventilated his complaints before any court of competent jurisdiction other than the Federal High Court. But, that, on the contrary, anybody who was aggrieved by the return made in favour of the appellant was entitled to have proceeded to the Election Tribunal to challenge it.
Learned senior counsel for the appellant quoted extensively from the judgment of the Supreme Court in the case of Obi vs. INEC (2007) 11 NWLR (Pt. 1046) 565 at 633 to justify the distinction between an action for declaratory and injunctive relief in a regular court and an election petition as for example provided for under the provision of Section 251(1) of the 1999 Constitution (as amended) and Section 285 of the same Constitution in conjunction with the provision of Section 133(1) and 138 of the Electoral Act 2010 (as amended).
He also referred to the cases of Njaba Local Government Council vs. Chigozie (2010) 16 NWLR (Pt. 1218) 166 at 197 and APGA vs. Ohakim (2009) 4 NWLR (Pt. 1130) 116 at 156 – 157 Ibrahim vs. INEC (1999) 8 NWLR (Pt. 614) page 334 at 351 and Adams vs. Umar (2009) 5 NWLR (Pt. 1133) 41 a 124 to say that a post-election matter is meant exclusively by way of division of labour for adjudication by the regular courts and not election Petition Tribunal.
Learned senior counsel for the Appellant repeated that the trial court was wrong when it held that the Appellant should have filed a petition at the Election Tribunal. That, it did not say what the ground of the petition would have been and whether as a victor, the appellant could invoke the jurisdiction of the Tribunal to file petition against himself.
Counsel referred to the case of Ezeobi vs. Nzeka (1989) 1 NWLR (Pt. 98) 478, where, the petitioner alle.ged that the Electoral Officer refused to announce the results of the voting in an election. He filed a petition which included a 2nd prayer, that is a declaratory relief. The relief stated that “the votes received by the petitioner thereat are valid and have not been questioned or avoided by a competent court or Tribunal”.
That, at page 470, the court held that the prayer cannot be valid having regard to the grounds upon which an election could be brought. It held further thereat: “Any declaratory judgment may make a pronouncement such as is desired in this 2nd prayer, but it has no place in an election petition. It does not even qualify as a ground for questioning an election petition.”
The case, according to counsel, further manifests the absurdity in the claim that the Appellant ought to have filed a petition. This, he said would have led to his filing a petition against himself.
Learned senior counsel for the appellant submitted that the 2nd Respondent as well as the learned trial Judge in the court below relied so much in the case of Ohakim vs. Agbaso (2011) All FWLR (Pt. 553) 1806 without appreciating the basic thrust of the case. He said, the case must not be expanded to accommodate what it did not decide.
He argued that the case did not decide that a person in the appellant’s situation who participated in the election like that of 26 April 2011 and was returned as validly elected, will file a petition complaining that he was not duly elected. That is left for those who had complaints against the return of the appellant.
Counsel said, in the petition in OHAKIM’s case supra, the petitioner challenged the cancellation of an election that was inconclusive. That, the petitioner thereat, in his claim as formulated was asking that the Independent National Electoral Commission be compelled “to collate and declare the results at the state level.”
The Ohakim case, he said, has nothing to do with the interpretation of any provision of the Electoral Act 2006 that is similar to Section 68(1)(c) or Section 75 of the Electoral Act 2010 as amended.
Counsel submitted that unlike OHAKIM’s case, the Appellant in the instant case had been returned as elected by the Returning Officer. That the trial Judge while relying on the case of Ohakim vs. Agbaso (supra)referred to the statement made by Mohammed, JSC at pages 1850 – 181, to the effect that “any dispute arising out of the conduct of any election —-between the parties that contested or participated in the election is not a subject matter for the jurisdiction of the Federal High Court of any other court for that matter other than the Election Tribunals. . . . .. ..”
Counsel argued that contrary to the statement of the noble law lord, no person who contested or participated in the election wherein the Appellant was returned challenged his election or return.
The Appellant’s case, he said, comes within the warm embrace of Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009 which at (7) enacts that “Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as the right claimed.”
The question, said counsel, is whether the trial court comes within the intendment of Section 75(2) of the Electoral Act 2010 (as amended).
He submitted that the lawmaker clearly and unequivocally limited the application of the proviso in Section 75(1) of the Electoral Act 2010 as amended to the Court of Appeal and the Supreme Court when exercising their jurisdiction as final appellate courts in any election petition. Such a situation, said counsel, would arise where a person returned in a legislative or National Assembly Election is challenged at the Election Tribunal and the matter is finally determined at the Court of Appeal which is the final appellate court in that case or if it is a presidential or governorship election, and the petition is finally determined by the Supreme Court in its appellate jurisdiction, the proviso is then activated.
Counsel said, after the special provision in the proviso in Section 75(1) aforesaid, the lawmaker made the general provision in Section 75(2) of the Act. The lawmaker in that clear provision deliberately used the phrase “a court of competent jurisdiction.”
The intendment of Section 75(2) of the said Act, according to counsel is to cover orders made in relevant pre-election and post election matters. Indeed, it covers matters that cannot be accommodated within the rubric of Section 285(2) of the 1999 Constitution as amended, Sections 133(1) and 138(1) of the Electoral Act 2010 (as amended).
Counsel referred to the case of Adehen vs. Idehen (1991) 6 NWLR (Pt. 198) 382 at 242 and submitted that the provision clearly intended a wider sense or else it will lead to an absurdity wherein pre-election or post election matters or events that post humously occurred after an election are excluded from the provision.
He submitted that it cannot be the intendment of the law that the Appellant who won an election and who was not issued with a Certificate of Return cannot be without a remedy.
Learned senior counsel for the Appellant invites this Honourable court to exercise its general powers under Section 15 of the Court of Appeal Act 2004 to determine the merits of the Amended Originating Summons.
Learned counsel for the respondents in response to the sole issue for determination submitted that the implication of the 1st Respondent’s cancellation of 26th April 2011 election for Ohaji/Egbema State Constituency and the conduct of a supplementary Election for the constituency on 6th May 2011 is that a new order emerged. That, by the new order, the Appellant to make a case must first seek and obtain a valid judicial order setting aside or quashing the cancellation. That, it is only and until the cancellation of the 26th April 2011 election for Ohaji/Egbema Constituency is set aside or quashed that case founded on Section 68(1)(c) if any, can be brought by the Appellant to the appropriate judicial forum.
The Respondents submitted that a calm review of the appellant’s case will show that it is not legally possible to consider the relief sought without making a pronouncement as to the status of the said election which was cancelled and the supplementary election held thereafter. This, said counsel, puts out the Appellant’s case as one connected with or revolving around election.
Learned counsel to the Respondents submitted that the Appellant by claiming that the said election was conclusive and that he is entitled to the issuance of a Certificate of Return, despite the supplementary election has put in issue, by necessary implication the status of the two elections – the cancelled election and the supplementary election. Therefore, said counsel, the Federal High Court was right when it declined jurisdiction to hear the matter as the case of the plaintiff….”goes beyond merely interpreting Section 68(1) of the Electoral Act 2010 (as amended).”
Learned counsel to the Respondents submitted that for the Appellant to enjoy the right to be issued with a Certificate of Return for the said election, he must produce clear and admissible evidence that there was a conclusive election on 26th April 2011 for Ohaji/Egbema State Constituency and that he, the Appellant, won a majority of the lawful votes cast and that he was actually declared the winner by the Returning Officer for the election who, in accordance with the legal regime on the conduct of the 2011 elections, issued him Form EC8E(i).
Respondents counsel further submitted that the alleged Form EC8E(i) Exhibit ‘A’ is contained in pages 7 and 22 of the Record.
That, a good look at the document (Exhibit “A”) in pages 7 and 22 of the Record will show that the document was not stamped as required by Section 74 of the Electoral Act 2010 (as amended).
Counsel submitted that as Exhibit “A” was not stamped as required by law, it therefore, has no legal value and cannot be a valid basis for a case in judicial proceeding. Exhibit “A’ being an unstamped Form EC8E(i) is worthless and did not make a foundation for the plaintiffs case, it is fatal to his case.
Learned counsel to the Respondents reiterated and quoted from the appellant’s Amended Originating Summons as having posed the question whether “… ……It is legal and lawful for the defendant to purport to organize or hold a “supplementary election” or any other election by whatever name so-called for the same State Constituency to elect, another person, as a member of the Imo State House of Assembly on 6th
May 2011.”
By this, counsel submitted that the Appellant’s case comes within the contemplation of Section 138(1) of the Electoral Act 2010 (as amended) as the election and return of the 2nd Respondent is in issue. It was further submitted on behalf of the Respondents that at the date of holding the supplementary election there was no legal action by the Appellant or a judicial pronouncement against the supplementary election. That, the cancellation of 26th April 2011 election by INEC remains effective in law until set aside. So, also, the supplementary election of 6th May 2011 remains subsisting and valid until legally nullified.
Counsel to the Respondents contend that the appellant could have validly brought an election petition on the ground that the supplementary election is invalid for non-compliance with Section 138(1)(c) of the Electoral Act, 2010 (as amended).
On this, counsel referred to the cases of Nyebuchi vs. INEC & Ors. (2002) 20 WRN 102 at 117 and Okey Enemuo vs. Chidi Duru & Ors. (2004) 39 WRN 66 and 90.
Respondents counsel argued that the issues in the case of Enemuo vs. Duru & Ors. (supra) and Mmah Nyebuchi vs. INEC & Ors. (supra) are similar with the present case and that in each of the cases, it was held that it was the election Tribunal that had the jurisdiction to hear the case.
That, in the case of Okey Enemuo vs. Chidi Duru & Ors. (supra) the Court of Appeal held inter alia that:
“The purported nullification or declaration amounted to non-compliance with the law which the Electoral Act recognizes and a ground for presentation of a petition.”
Respondents counsel referred to the case of AGbakoba vs. INEC (2009) 24 WRN 1 at 46, where the Supreme Court held that any dispute resulting from the conduct of an election is a post-election dispute. And, that, the Election Tribunal is a special Tribunal created by the Constitution to handle post-election disputes.
Again, on behalf of the Respondents, reference was made to the decision of the Supreme Court in Ohakim. vs. Agbaso & Ors (supra) that only election Tribunals hear post-election matters connected with elections no matter the guise. Therefore, even if the Appellant’s claim is held to be a post-election dispute, the trial court was right in declining jurisdiction to hear and determine the suit.
The Respondents urged us to hold that the Federal High Court was right in holding that it had no jurisdiction to hear the suit and accordingly dismiss the appeal.
In deciding the sole issue in this appeal, it must first be noted that the appeal itself concerns the refusal of the Federal High Court (the court below) to exercise jurisdiction. What then is ‘Jurisdiction’ Jurisdiction as a concept in law is an authority which a man has by a power to do justice in causes of complaint made before him. In its narrower sense, the jurisdiction of a validly constituted court connotes the limits which are imposed upon its powers 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 issues are joined and (3) to the kind of reliefs sought to any combination of these factors.
The concept widely embraces the settled practice of the courts as to the way in which they will exercise their discretions to hear and determine issues within their powers or as to the circumstances in which they will grant a particular kind of relief which they have power to grant. These include their discretions to refuse to exercise such powers or to grant such reliefs only in particular circumstances.
See, Owoade T.O. Jurisdiction in Administrative Law page(ii) Caltop (2001).
In the con of case law, in Attorney-General, Lagos State vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552 SC. Jurisdiction was defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined or to the kind of relief sought.
Also, to be able to properly discern the issues between the parties, it is appropriate to assume the legal truism which underlined the arguments of the learned counsel for the appellant that the jurisdiction of a court is to be determined by the statement of claim, in the instant case, the Plaintiffs Amended Originating Summons.
This is because it is now settled law that in considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it critically looking at the Writ of Summons and the Statement of Claim. Gafar vs. Govt. of Kwara State (2007) 4 NWLR (Pt. 1024) 375 SC, Onuorah vs. K.R.P.C. (2005) 6 NWLR (Pt. 921) 393 SC, Tukur vs. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 SC, Onyenachiya vs. Mil. Adm.. Imo State 1 NWLR (Pt. 482) 429 C. A., Multi-Purpose Ventures Ltd. Vs. A-G., Rivers State (1997) 9 NWLR (Pt. 977) 587 SC and Lufthansa Air Lines vs. Odiese (2006) 7 NWLR (Pt. 978) 39 CA.
In this respect, I must state categorically that contrary to the suggestion of the learned counsel for the 2nd Respondent, that the issue of jurisdiction could be determined by looking at the Statement of Defence, that though it is sometimes necessary for the court to hear some evidence first for the purpose of determining the issue of jurisdiction; where however, pleadings are filed in a suit, the issue of jurisdiction ought to be determined on the plaintiff’s pleading, that is, his statement of claim and not on the defendant’s statement of defence. See Onuorah vs. K. R. P. C. (supra), A-G, Kwara State vs. Olawale (1993) 1 NWLR (Pt. 272) 645 SC and Izenkwe vs. Nnadozie (1953) 14 WACA 361.
The Appellant proceeded from the above basis and argued through his learned senior counsel, Dr. Livy Uzoukwu that having been declared the winner of the Ohaji/Egbema State Constituency election held on 26th April, 2011, on the face of Exhibit ‘A’ by one Nwoke Ngozi Valentine who certified as the Returning Officer for the election, his case for declaratory and injunctive reliefs falls squarely within the ambit of the provisions of Section 68(1) (c) and 75(2) of the Electoral Act, 2010 (as amended) merely to compel the 1st Respondent to issue him with a Certificate of Return. Section 68(1) (c) of the Electoral Act, 2010 (as Amended) reads as follows:
“68(1) The decision of the Returning Officer on any question from or relating to.
(c) Declaration of scores of candidates and the return of a candidate shall be final subject to review by a Tribunal or Court in an election petition proceeding under the Act.”
And in Section 75, the Electoral Act provides as follows:
“75(1) A Sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act.
Provided that where the Court of Appeal or the Supreme Court being the final appellate court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall, within 48 hours after the receipt of the order of such court, issue the successful candidate with a valid certificate of return.”
Section 75(2) of the same Electoral Act provides:
“Where the Commission refuses or neglects to issue a Certificate of Return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto be sufficient for the purpose of swearing-in a candidate declared as the winner of the Court.”
Learned senior counsel for the Appellant believes and contends that the Federal High Court is a court of competent jurisdiction to declare the declaratory and injunctive relief(s) sought by the Appellant under the provisions of Section 68(1) (c) and 75(2) of the Electoral Act, 2010 (as Amended) to compel the issuance of a Certificate of Return for the Appellant. Little did the learned senior counsel realize that from the Appellant’s claims, an election petition Tribunal would have been the appropriate forum even by the proviso to the provision of Section 75(1) of the Electoral Act which contemplates a Certificate of Return by a final appellate court in an election petition proceeding.
Let us pause for a moment to examine the claim(s) of the Appellant.
Paragraphs 1 and 2 of the reliefs claimed by the Appellant in his Amended originating summons at page 58 of the record are as follows:
“1. A Declaration that by virtue of Section 68(1)(c) of the Electoral Act, 2010 (as Amended) the Returning Officer for Ohaji/Egbema State Constituency having declared that the Plaintiff scored the majority of lawful votes at State House of Assembly election for Ohaji/Egbema State Constituency in Imo State held on 26th April, 2010 and thereby returned him as the winner and issued him with Form EC8E(1), it is illegal and unlawful for the 1st Defendant to purport to organize or to hold a “supplementary election” or any other election by whatever name so-called for the same State Constituency on 6 May, 2011 to elect another person or the 2nd Defendant as a member of the Imo State House of Assembly.
2. A Declaration that the 1st Defendant has no power under the law to issue a Certificate of Return to any person including the 2nd Defendant other than to the Plaintiff consequent upon the return of the Plaintiff at the Imo State House of Assembly election held on 26 April, 2011 for the said Ohaji/Egbema State Constituency ……..”
Also, in paragraph 15 of the Further Affidavit in support of the Appellant’s Originating Summons at page 152 of the record, it was deposed for the Appellant inter alia:
“15. That it is also unlawful for the 2nd Defendant to be sworn in as a member of the House of Assembly when he had no Certificate of Return.”
By the above claims, the Appellant recognized, accepted and conceded:
i. That a supplementary election was held on 6 May, 2011.
ii. That another person or the 2nd Respondent was therein elected as a member of the Imo State House of Assembly.
iii. That the 1st Respondent has no power to issue a Certificate of Return to any person including the 2nd Respondent.
iv. That the 2nd Respondent has been sworn in as a member of the State House of Assembly.
Undoubtedly, these combination of facts gathered from the claims of the Appellant himself constitute a challenge to the election of the 2nd Respondent as a member of the State House of Assembly for the Ohaji/Eg bema Constituency.
In these circumstances, the learned Judge was right to have said that the Plaintiffs/Appellant case goes beyond merely interpreting Section 68(1)(c) of the Electoral Act, 2010 (as Amended) in the light of the Plaintiffs Exhibit ‘A’ Form EC8E(1) (page 259 of the record). Also, that it goes beyond merely making declaratory and injunctive orders pursuant to the provisions of Section 75(2) of the Electoral Act (supra) as argued by the learned Senior Advocate (page 259) of the record).
The learned trial Judge was also right when she opined at page 260 of the record that the cases of Obi vs. INEC (2007) 11 NWLR (Pt. 1046) p.465 and Ohakim vs. Agbaso (2011) All FWLR (Pt. 353) p. 1806 are more apposite or applicable to this particular suit. And, the court below was properly guided by the reliance on the statement of Mohammed, JSC, at pages 1850 to 1852 of the decision in Ohakim vs. Agbaso (supra) to the effect that:
“….. any dispute arising out of the conduct of any election under the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006 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 specifically established and conferred with jurisdiction under Section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 140(1), (2) and (3) of the Electoral Act, 2006 ……..”
Of course, it is not true as suggested by the learned Senior Counsel for the Appellant, that the Appellant would have been deprived of his remedies because he would not have been able to file a petition against himself before an Election Tribunal.
The Appellant in this case was a party in an election and his political party (PDP) participated in the State House of Assembly election aforesaid under the provision of Section 132(1) of the Electoral Act, 2010 (as Amended). The Appellant would also from the facts of the case be entitled to question the election of the 2nd Respondent more particularly under the provision of Section 138(1) (b) and (c) that is:
“(b) that the election of the 2nd Respondent was invalid by reason of corrupt practices or noncompliance with the provisions of the Act.
(c) that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election.”
To the above extent, the case of Dr. Okey Enemuo vs. Chief Chidi Duru & 3 Ors. (2004) 39 WRN 66 referred to by the learned Counsel for the 2nd Respondent is relevant, applicable and appropriate to the facts and circumstances of the present case. In that case, the Petitioner/1st Respondent filed a petition at the National Assembly/Governorship and Legislative Houses Election Tribunal, Awka, Anambra State against the Respondent/Appellant and 2nd to 5th Respondents praying inter alia that it be declared that the Petitioner/1st Respondent was validly elected and returned as winner having polled the highest number of lawful votes cast at the election and was duly declared as winner and issued with Form EC8E(1) by the Returning Officer.
The case of the Petitioner/1st Respondent at the Tribunal was that he was the candidate of the Peoples Democratic Party (PDP) who was duly screened and cleared by the 2nd Respondent to contest the election of 16/4/03 in respect of Aguata House of Representatives, Federal Constituency of Anambra State. The Returning Officer for the constituency returned the 1st Respondent as the winner of the election and issued out to him Form EC8E(1) on 16/4/03. However, by press release, the 2nd – 4th Respondents maintained that they cancelled or withdrew the result announced by the Returning Officer. The Appellant also maintained that he was the PDP candidate. He was issued with Certificate of Return prepared after the filing of the petition.
The Appellant contested that the matter is an intra-party affair which the trial tribunal lacked jurisdiction to hear and that non-joinder of the Returning Officer as a necessary party is fatal to the petition. The trial tribunal in his considered Ruling after addresses by counsel to the parties on 15/8/03 found in favour of the Petitioner/1st Respondent and granted all the reliefs claimed by him. Dissatisfied, the Appellant appealed to the Court of Appeal.
One of the salient issues before the court of Appeal was:
“Whether considering the provisions of Section 285(1) of the 1999 Constitution of Nigeria, the provisions of the Electoral Act, 2002 especially Section 134(1) A – D thereof and also that the facts contained on the face of the petition, the evidence led at the trial and the judgment of the tribunal, the learned tribunal has jurisdiction or competency to entertain the petition.”
In that case, John Fabiyi, JCA (as he then was) who delivered the lead opinion of the court held at page 89 as follows:
“It is clear to me that the 1st Respondent in this appeal and the Petitioner at the Tribunal rightly filed his petition in consonance with the dictates of Section 131(1) of the Electoral Act, 2002. The election tribunal, to the exclusion of any other tribunal is imbued with the requisite jurisdiction to try complaints of the Petitioner touching upon undue election or return. It will be absurd to find otherwise; as by so doing, the 1st Respondent herein and Petitioner at the tribunal would find no forum to ventilate his complaints. Such a negative position cannot be the essence of the applicable laws. On this score, I find with ease, that the trial Tribunal has jurisdiction to entertain and determine the petition duly filed before it … . .. … … ”
The above dictum is consistent with the attitude of the courts in cases such as Adams vs. Umar (2009) 5 NWLR (Pt. 1133) 41 and Ezeobi vs. Nzeka (1989) 1 NWLR (Pt. 98) 478, both cases incidentally referred to by the learned Senior Counsel for the Appellant. Thus in Ezeobi vs. Nzeka (supra). Ikwechegh, JCA (as he then was) remarked at page 489 that:
“an election petition is meant to question the election of a candidate returned as victor. The petition must show this fact….”
In the instant case, the Appellant’s Amended Originating Summons has shown the 2nd Respondent to be the victor at the State House of Assembly seat for the Ohaji/Egbema State Constituency elections held on 26th day of April, 2011 and 6th day of May, 2011 respectively.
The learned trial Judge was thus right to have upheld the 2nd Respondent’s Notice of Preliminary Objection dated 13th June, 2011 and struck out the Appellant’s Amended Originating Summons filed on 6th June, 2011.
Accordingly, this appeal lacks merit and it is accordingly dismissed. There shall be costs of N20,000.00 awarded to the 2nd Respondent only against the Appellant. That shall be the judgment of the court.
UWANI MUSA ABBA AJI, J.C.A (PRESIDING): I was privileged to read before now the lead judgment of my learned brother M.A. Owoade, JCA just delivered.
The Appellant as Plaintiff before the trial Court by an amended originating summons filled on the 6th June, 2011 sought for the determination of a sole issue to wit:
Whether having regard to section 68(1)(c) of the Electoral Act, 2010 as amended; the declaration made by the Returning Officer for Ohaji/Egbema State Constituency that the Plaintiff scored the highest number of votes at the Imo State House of Assembly election for the said Constituency held on 26th April, 2011 and thereby returned him as the winner and issued him with Form EC8E(i), is it legal and lawful for the Defendant to purport to organize or to hold “Supplementary election” or any other election by whatever name so called for the same state Constituency to elect another person as a member of the Imo State House of Assembly on 6th May, 2011.
He sought for the following two declaratory reliefs and two injunctive reliefs, as follows:
1. A declaration that by virtue of Section 68(1)(c) of the Electoral Act, 2010, as amended, the Returning officer for Ohaji/Egbema State Constituency having declared the Plaintiff scored the majority of Lawful votes at State House of Assembly election for Ohaji/Egbema State Constituency in Imo State held on 26th April, 2011 and thereby returned him as the winner and issued him with Form EC8E(i), it is illegal and unlawful for the 1st Defendant to purport to organize or to hold a supplementary election or any other election by whatever name so called for the same state Constituency on 6th May, 2011 to elect another person or the 2nd Defendant as a member of the Imo State House of Assembly.
2. A declaration that the 1st Defendant has no power under the law to issue Certificate of Return to any person including the 2nd Defendant other than the Plaintiff consequent upon the return of the Plaintiff at the Imo State House of Assembly election held on 26th April, 2011 for the said Ohaji/Egbema State Constituency.
3. An order of mandatory injunction compelling the 1st Defendant to issue the Plaintiff with a Certificate of Return, the Plaintiff having been duly returned and elected at the Imo State House of Assembly election of Ohaji/Egbema State Constituency of Imo State held on 26th April, 2011.
4. An order of perpetual injunction restraining the 1st Defendant from any manner however or whatsoever, issuing any Certificate of Return to any other person including the 2nd Defendant consequent upon the holding of any purported “Supplementary election” or any other House of Assembly election whatsoever for the said Ohaji/Egbema State Constituency purportedly held on 6th May, 2011.
The originating summons was supported by a 16 paragraph affidavit and another 16 paragraph further affidavit. The 2nd Respondent filed a Notice of Preliminary Objection on the 16/6/2011 and prayed the Court to strike out the Plaintiff’s suit for incompetence and lack of requisite jurisdiction to hear and determine the Plaintiffs suit being an election dispute. The grounds of objection inter alia includes, that the suit is an election dispute, which the Imo State House of Assembly Election Tribunal has Exclusive jurisdiction pursuant to Section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended to hear and determine.
In a considered ruling delivered on the 26/1/2012, the learned trial Judge upheld the 2nd Defendant’s Preliminary Objection and accordingly struck out the amended originating summons filed on 6th June, 2011.
Upon appeal to this Court, Learned Senior Counsel for the Appellant, Dr. Livy Uzoukwu, SAN formulated a lone issue for determination to wit:
“Whether the trial Court was right when it held that it lacked the jurisdiction to hear and determine the Appellant’s Amended Originating Summons.”
Jurisdiction of a Court is the pillar upon which the case before the Court stands. It is the foundation of adjudication by a Court of law. The Court will exercise its jurisdiction where the subject matter in a case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. The Constitution and statutes which setup the Courts cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to adjudication. See Madukolu vs. Nkemdilim (1962) 2 SCNJ 341 at 348. It is trite that the jurisdiction of a Court is determined the pleadings filed by the Plaintiff and claim he seeks or in the instant case the originating summons, the affidavit of evidence filed and the reliefs sought.
Dr. Livy Uzoukwu, SAN for the Appellant contended that the Appellant having been declared the winner of the Ohaji/Egbema State Constituency election held on 26th April, 2011, on the face of Exhibit ‘A’ by one Nwoke Ngozi Valentine, who certified as the Returning Officer for the election, his case for declaratory and injunctive reliefs falls squarely within the ambit of the provisions of Section 68(1)(C) and 75(2) of the Electoral Act 2010 as amended to compel the 1st Respondent to issue him with a certificate of Return.
Sections 68(1)(C) and 75(1) of the Electoral Act 2010 as amended provides as follows:
68(1) “The decision of the Returning Officer on any question from or relating to:
(c) Declaration of scores of candidates and the return of a candidate shall be final subject to review by a Tribunal or Court in an election petition proceedings under this Act.”
75(1) “A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under the Act.
Provided that where the Court of Appeal or the Supreme Court in any election petition as the case may be nullifies the certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such Court issue the successful candidate with a valid Certificate of Return.”
It does appear to me from the facts of this case, that the case of the Appellant is based on the interpretation of Section 68(1)(c) and 75(1) of the Electoral Act, 2010 as amended. I find it hard to comprehend a review of the Appellant’s case will show that it is not legally possible to consider the reliefs sought by the Appellant without making a pronouncement on the status of the election of 26th April, 2011 and the supplementary election held thereafter on the 6th May, 2011. This is so because the Appellant accepted the fact that supplementary election was held on the 6th May, 2011 that brings the election on the 26th April, 2011 in respect of which he the Appellant was issued with a declaration “Exhibit A’ inconclusive. He also conceded the fact that another person or the 2nd Respondent was therein elected as a member of the Imo State House of Assembly. See paragraph 15 thereof of the further affidavit in support of the Appellant’s originating summons. He also conceded the fact the 2nd Respondent has been sworn in as a member of the State House of Assembly.
It is therefore clear from the above that the Appellant’s remedy as rightly held by the Learned trial Judge lies in a petition under the provisions of Section 133(1) and 138(1) of the Electoral Act, 2010 as amended against the 2nd Respondent who was duly returned as elected before the House of Assembly Election Tribunal as provided by Section 285(1)(b) of the 1999 Constitution as amended as the suit goes beyond merely making declaratory or injunctive orders pursuant to the provisions of Section 75(1) of the Electoral Act 2010 as amended.
The scenario or the picture painted by the Learned Senior Counsel for the Appellant Dr. Livy Uzoukwu, SAN that a person in the Appellant’s situation who participated in an election like that of 26th April, 2011 and was returned as validly elected will file a petition complaining that he was not duly elected. Surely, the Appellant cannot be without a remedy as lamented by the Learned Senior Counsel. A calm review of the Appellant’s case will show that it is not legally possible to consider the relief sought without making a pronouncement on the status of the 26th April, 2011 election which was cancelled and supplementary held thereafter. This therefore puts the case of the Appellant as one connected with or revolving around election. See Ememuo vs. Duru (2004) 39 WRN 66 at 90; Nyebuchi vs. INEC (2002) 20 WRN 102 AT 1117; Agbakoba vs. INEC (2009) 24 WRN 1 at 46; Obi vs. INEC (2007) 11 NWLR (PT 1046) 465. It is therefore clear that any dispute resulting from the conduct of an election is a post election dispute and that the Election Tribunal is a special Tribunal created by the Constitution to handle post election disputes. Similarly, the Supreme Court per Mohammed, JSC in Ohakim vs. Agbaso (2011) ALL FWLR (PT 553) 1806 at 1850 to 1852, held as follow:
“… any dispute arising out of the conduct of any election under the constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act 2006 between the parties that contested or participated in the election, such a dispute is not subject matter of the jurisdiction of the Federal High Court or any other Court for that matter other than the Election Tribunal specifically established and conferred with jurisdiction under Section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 140(1)(2) and (3) of the Electoral Act. 2006…”
Based on the above, the Lower Court rightly declined jurisdiction and upheld the 2nd Respondent’s Notice of Preliminary Objection and struck out the Appellant’s Amended originating summons.
It is for the reasons herein above stated and particularly the more detailed reasons in the lead judgment of my learned brother M. A. Owoade, JCA that I also find the appeal unmeritorious. It is also dismissed by me.
I endorse the consequential order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, M. A. Owoade, JCA.
I am in total agreement with the lead judgment that, the learned trial judge of the Federal High Court was right when he declined jurisdiction to entertain the originating Summons filed by the Appellant before him on the 6th day of June, 2011. The Appellant having acknowledged that a supplementary election was conducted in respect of the state constituency in question, the result declared and the 2nd Respondent duly sworn as a member of the Imo state House of Assembly, the proper court the Appellant should have approached for the ventilation of his grievances was the Election Tribunal A petition on the ground that the election of the 2nd Respondent was invalid for non-compliance with the provisions of the Electoral Act, could have been properly situated.
It is for this reason and the detailed reasons encapsulated in the lead judgment, that I agree that this appeal is lacking in merit. It is dismissed by me. Accordingly, I also uphold the decision of the court below which upheld the 2nd Respondent’s Preliminary Objection filed on the 06/6/2011.
I abide by the order on costs.
Appearances
Dr. Livy Uzoukwu SAN, with C.K. Uba, Esq.For Appellant
AND
B.I. Amadi, Esq. (Mrs) for the 1st Respondent
Uche Wisdom Durueke, Esq; with U.O. Okoli, Esq and C. Nnadi, Esq., for the 2nd RespondentFor Respondent
