SEN. NURUDEEN ADEMOLA ADELEKE & ANOR v. AWOSIYAN OLALEKAN KINGSLEY & ORS
(2019)LCN/13042(CA)4gW4Uu
In The Court of Appeal of Nigeria
On Saturday, the 6th day of April, 2019
CA/AK/81/2019
RATIO
JURISDICTION: WHEN A TRIAL COURT LACKS JURISDICTION, THE SUIT OUGHT TO BE STRUCK OUT
Indeed, the trial Court no longer had jurisdiction to entertain the matter at the time it did. The incompetent suit ought to have been struck out. Accordingly, this appeal ought to be allowed and the suit vide the originating summons should be struck out and the Ruling delivered thereon on the 1st February 2019 be set aside, as this Court aptly stated in APC & ORS V. INEC 286 CAGS per Mukhtar, JCA:…To do otherwise as stated if the situation is encouraged it will breed uncertainly in the polity when a person may wake up a year or more after an election and swearing in of a President or Governor to Challenge his nomination by way of substitution for an election that brought him to power or he may even do so after the tenure of the office of office of official concern which attitude ought not to be encouraged by the Law.MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. SEN. NURUDEEN ADEMOLA ADELEKE
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. AWOSIYAN OLALEKAN KINGSLEY
2. OJETADE THOMAS
3. AWODIRE SINA PETER
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court sitting at Osogbo hereinafter referred to as the trial Court delivered on the 1st day of February, 2019. The 1st -3rd Respondents, as plaintiffs before the trial Court by way of an Originating Summons dated and filed on the 30th day of October 2018, in suit NO. FHC/OS/CS/46/2018, had instituted an action against the Appellants and the 4th Respondent herein seeking certain declaratory reliefs as well as some orders. It is as relating to the qualification of the 1st Appellant and his nomination by the 2nd Appellant, then Defendant as its candidate and presentation to the 4th Respondent (the Independent National Electoral Commission) as the information relating the publication of list submitted and the documents on qualification of candidates were said to be false.
In the cause of the trial, the Court Suo Motu on the 23rd of January, 2019 raised the issue of the Jurisdiction of the trial Court to entertain the suit in view of the provisions of SECTIONS 285(9) of the 1999 constitution of the Federal Republic of Nigeria, (as amended) by the 4th Alteration No. 21 of 2017
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 the matter having been filed outside the 14 days period as contained in the provision. After hearing from both sides, however, the Court ruled in favour of the 1st-3rd Respondents and specifically that the Originating Summons was one that was filed by Any Person and therefore not by an aspirant, or a political party and therefore was not a suit in a pre-election matter as defined in the Section 285(7) of the 4th Alteration to the 1999 Constitution.
Furthermore, that it was not a suit covered by the Constitution as to time limitation as it was brought by a person other than a candidate or political party. That the Originating Summons and the objections raised in the suit will be heard on their merit, hence this appeal was filed on the 7th day of February, 2019 and upon Two Grounds as contained at Pages 357-360 of the Record of Appeal.
The sole issue raised in the Appellants Brief of Argument settled by A.O. Oladele, Esq and adopted at the hearing by its learned lead senior counsel
NATHANIEL O. OLADIRAN OKE, SAN is as Follows:
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Whether the trial Judge was not wrong when it held that the suit did not fall within the purview of SECTION 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) by the 4th alteration No. 21 of 2017 and thus failed to dismiss the Suit.
The learned Senior counsel submitted that the provisions of Sections 285(9) of the Constitution, 4th Alteration No. 21 of 2017, by the proviso; Notwithstanding any thing contained in this constitution has clearly extended its applicability to all the provisions of the constitution and all Acts including the provision of Section 31(5) of the Electoral Act, 2010 as amended.
The learned counsel noted that both the Applicants are ad-idem that the subject matter of this appeal is a pre-election issue. Relies on the recent decision of the Supreme Court in OBAYEMI TOYIN V. PDP & 3 ORS (2019) delivered on 18th January, 2019 and contends that it is materially on all fours with the present appeal and therein the Apex Court held that time is limited for entertaining and determining pre-election appeal and that time had caught up with an appeal that came late.
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That the suit was incompetent and the Court lacked jurisdiction to entertain same on the aforesaid authority.
Counsel argues that it was obvious that things, matters or events that take place before an election were pre-election matters, such as the nomination of candidates; emphasizes the need to adhere strictly to Election petition or pre-election rules; the case of AMAECHI V. INEC (2007) 18 NWLR (PT. 1065) was called in aid.
That time is of the essence; referring toEZE IGWE V. NWAWULU (2010) 4 NWLR( PT 1183) Page 171 ratio 11.
The learned counsel for the Appellant, quoting from the Dicta of Onnoghen, JSC inIGWE V. NWAWULU (SUPRA) and the Explanatory Memorandum of the 4th Alteration to the 1999 Constitution No. 21, 2017 submitted that its applicability to the subject matter on appeal was not in doubt;
That the 1st-3rd Respondents only intend to create an unsustainable and dangerous precedent where pre-election matters filed by individuals, who are neither aspirants nor political parties abound indefinitely in time and thus running against our Electoral System and Rules.
That the intention of the law makers is to
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prevent delays in pre-election matters. Relies on National ASSEMBLY V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2003) 9 NWLR (PT. 824) AT 104.
The learned counsel submitted strongly, that Sections 31 (5) of the Electoral Act, 2010 ought to be read in conjunction with Section 285 (9) of the 1999 constitution (as amended) and that, when that is done, it leads to the indubitable conclusion that nomination or disqualification of a candidate is a pre-election matter which ought to be filed within 14 days. That failure to adopt this approach of reading the provisions conjunctively, would mean that an aggrieved individual could challenge the nomination of a candidate who has been duly elected even several years into his/her tenure! That this should not be allowed.
That pre-election suits like election petitions are Sui Generis; relies on OBI-UDU V. DUKE (2005) NWLR (PT 932) P. 148 RATIO 8.
The long title of the 4TH Alteration No 21 of 2017 providing thus: –
An act to alter provisions of the Constitution of the Federal Republic of Nigeria, 1999 to provide time for the determination of pre-election matters and for related
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matters referred to and the views of Monica Domgbam-Memsem, JCA on time being of the essence so that Parties and the generality of the public would readily know the status of the contestants was referred to. The definition of election matters as being the issue of disqualification, nomination substitution and sponsorship of candidates for an election as decided by this Court in KOLAWOLE V. FOLUSHO (2009) 8 NWLR (PT. 1143 ) 338 RATIO 19 (PAGE 384 ) PARAGRAPH G-H relied on to contend that any act done by a political party in the course of nomination and submission of names of candidates by political parties for an election amounts to a pre-election matter and thus covered under Section 285 of the 1999 Constitution (as amended).
That Section 31 of the Electoral Act dealing with the submission of list of candidates and their affidavit by political parties is an act done in the course of nomination of candidates by political parties for presentation in an election; thus clearly a pre-election matter and falls within the purview of Section 285 of the 1999 Constitution of the FRN as amended.
That the wordings of Sections 285 are clear
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and unambiguous, as such the Courts are bound to give it, its natural meaning to ensure the smooth working of the Judicial system. JAMES V. INEC (2015) 12 NWLR (PT 1474) 19, AT 548; ADETAYO V. ADEMOLA (2010) 15 NWLR (PT 1215) P. 588, PARAGRAPH D-G; NYESOM V. PETER SIDE (2016) 1 NWLR (PT. 1492) P. 83 RATIO 9. Relied upon.
That the Primary election was conducted by the 2nd Appellant on the 1st of July, 2018 and 1st -3rd Respondents, filing their Originating Summons at the trial Court on the 13th day of October, 2018, clearly 101 days after the said election was filed outside the 14 days requirement of the Constitution.
In urging that the spirit of a legislation should be discerned in the interpretation of statutes, reference was made toF.A.T.B. V. EZEGBU (1994) 9 NWLR (PT 367) AT 165 RATIO 19. Relying also on ABUBAKAR V. YAR ADUA (2008) 19 NWLR (PT 1120) AT PAGE 1 RATIO, where the Supreme Court per Tobi, JSC Stated:
Whatever rule of interpretation is to be applied in a case, including the purposive rule, the intention of the lawmaker is paramount and central. The purposive rule of interpretation would appear to have been originated by
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Lord Denning in the case of Seaford Court Estates Ltd v. Asher (1949) 2KB 481. In developing the rule, which evolved from the mischief rule, Lord Denning said: It would ordinarily save the Judges trouble if Acts of parliament were drafted with divine presence and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the Constructive task of finding the intention of parliament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy and then he must supplement the written word so as to give force of life to the intention of the legislature. In Magor and St. Mellona Rural District Council V. Newport Corporation (1951) 2 A1 ER 839, Lord Denning, though expatiating the same rule, sounded more cordial when he said: we do not sit here to pull the language of parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are often prone. We sit
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here to find out the intention of parliament and of minsters and carry it out, and we do this better by filling in the gaps and make sense of the enactment than by opening it up to destructive analysis. In both cases, Lord Denning emphasized the intention of parliament, which is out National assembly. This means that whatever rule of interpretation, including the purposive rule, the intention of the lawmaker is paramount and central. Lord Denning correctly pointed out that Courts of law cannot pull the language of parliament to pieces and make nonsense of it I should say that the purposive rule of interpretation will not avail a Judge where the intention of the lawmaker is clear, precise and unequivocal, so much so that, a person can say Yes this is what the lawmaker has in his mind. The purposive rule does not allow the Judge to destroy the intention of the lawmaker, in the language of Lord Denning, the Judge must not alter the material at which it is woven, but he can and should iron out the creases..
The learned silk contended that there was no constitutional provision for the time within
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which pre-election matters could be determined before the 4th Alteration Act, No 21, 2017 was enacted and therefore, that the mischief the Act was intended to cure is to stop challenges for prolonged legal tussles after elections have been concluded and to provide a time for the determination of pre-election disputes and related matters.
That the reason for the remedy provided in the 4th Alteration Act No. 2 of 2017 was to stop instances whereby elections are conducted in the year 2003 and a party whether an aspirant or political party on any other person will institute an action challenging the election in the year 2016.
That the provisions of Section 285 of the 1999 Constitution as Amended, by Act No. 21 of 2017 superceded the Section 31(5) of the Electoral Act, 2010 as Amended and subjugated it. Ultimately, he submitted that the trial Court had erred in holding that the suit was not a pre-election matter and thus not covered by Section 285 of the Constitution as Amended.
That this appeal should succeed and be allowed whilst the substantive suit should be dismissed, having been filed out of time.
The 1st 3rd
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Respondents by their lead counsel, Gboyega Oyewole, SAN adopted their Brief of Argument settled by Olufemi Ayandokun, Esq. and filed on 26/3/19 to contend that the appeal should be dismissed as, the clear provisions of S. 31(5) of the Electoral Act, 2010 was not in conflict with the Section 285(9) of the Constitution, 1999 as amended by the 4th Alteration Act No. 21 of 2017. That the suit was not a pre-election suit within Section 285 (14) of the Constitution, 4th Alteration No. 21, 2017.
That the Appellants submission was an invitation to judicial activism. That the totality of the submission of the Appellants is an invitation to a violation of the doctrine of separation of powers, and rather, one urging for amendment. That a re-legislation of the constitution was being urged to be done by the Court. Counsel relies on ONI V. FAYEMI (2013) 12 NWLR (PT. 1369) 431 @ 457 par A-B to urge against judicial interference with legislative powers; that the provisions of S. 285(14) defining pre-election matters, was inapplicable to Section 31(5) of the Electoral Act, 2010 and therefore, Section 31(5) of the Act was not limited
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by Section 285(9) of the Constitution as to time of initiating the suit. Counsel also referred pungently to ADEOKIN RECORDS V. MCSN LTD/GTE (2018) 15 NWLR (PT. 1643) 550 @ 564 par. F-G on the need for strict interpretation of legislations. However, the learned counsel in another breath relies on PDP V. SHERIFF (2017) 15 NWLR (PT. 1588) 219 AT 275 par. D-E (SC) per Rhodes Vivour to contend that those parts of the constitution on the same matter should be construed together so that the subject matter in issue can be properly understood and applied correctly.
That the exhaustive definition in Section 285(14) covered Section 285(9) and needed not to be extended to cover Section 31(5) of the Electoral Act. I should at this point observe that the entirety of the arguments is as done in the sister case No. CA/AK/106/2019 and the same authorities are referred to. The cases are on all fours, as both emanate from the same suit and judgment; involving the same parties and the same primary election. Suffice it that these Respondents, ultimately urge that the appeal be dismissed and for the trial Court to proceed to hear and determine the suit expeditiously per its inherent powers, as the 1st
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3rd Respondents were not aspirants as defined in the Constitution, Section 285(14) and therefore not the persons envisaged under Section 31(5) of the Electoral Act and consequently the time limitation of Section 285(9) of the Constitution 4th Alteration, No. 21, 2017 was inapplicable, the 1st3rd Respondents insisted, by the parchment filed and viva voce his learned senior counsel.
On its part, the 4th Respondent by its Brief of Argument settled by Kazeem A. Gbadamosi, Esq. filed on 22/3/2019 and adopted at the hearing, concedes that the appeal be allowed. The learned counsel relying on the recent decision of the Supreme Court in OBAYEMI TOYIN V. PDP & ORS. 2019 (unreported) 308/2018 contended that the Supreme Court had settled with finality the need for determining pre-election matter within the specified time and that this Court should allow the instant appeal.
The Appellants Counsel had also filed an Appellants Reply Brief of Argument on 27-3-2019 wherein, he posed the rhetorical question if the matter was not a pre-election matter, then if it was a post election matter. Referred to the prayers and reliefs as
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contained on page 4 of the Record on the qualification and substitution of the 1st Appellant on ground of qualification. That it was a pre-election matter at the regular Courts as established under Section 6 of the constitution, 1999. Relies on ZARANDA V. TILDE (2008) 10 NWLR (PT. 1094) 184 AT 210 AND AMAECHI V. INEC (2007) 18 NWLR (PT. 1065) 170 AT 196, The Originating Summons at Page 4 of the Record of Appeal and the prayer thereof showing a desire for nomination. That the matter was a pre-election matter and limited by time. Relies onAPC V. INEC (2018) LPELR 44286 CA per Mukhtar, JCA.
The learned counsel had at the hearing further emphasized that the real issue that called for interpretation was whether the fourth alteration to the constitution, Section 285 thereof per the Act No. 21 of 2017 was applicable to suits as actions filed before its enactment and that all other considerations therein were mere obiter dicta. He maintained that the S. 285 (9) of the constitution as amended did not contemplate the Section 85(1) of the Electoral Act and that only a Statutory amendment as against Judicial activism was required to change the position of the
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law.
That predicating the Appellants case on Section 31(5) of the Electoral was sufficient and that the remedies to be granted on even if Locus Standi was a factor to consider was a matter of discretion and not a jurisdictional question; that the Appellants call should not be heeded so that the Statutory provisions be not stretched beyond the limit of its capacity of carriage.
In oral adumbration, the counsel to the 4th respondent also found anchor in the additional authority.
The 1st -3rd Respondents counsel took exception, though soberly and calmly to the 4th Respondents Support of the Appeal, but I do think that whilst the apex Court had in INEC V. NGIGE & PDP deprecated the practice and considered that a Respondent ought to support the judgment rather than Support the Appellant, where he has not appealed nor shown how the Judgment had adversely affected him, I do think that in this matter on appeal, the acts/conduct of the 4th Respondent, the Independent National Commission was questioned as relating to its acceptance of the candidacy of the 1st Appellant. The 4th Respondent was a defendant and was enjoined to defend
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its actions and the various declaratory, mandatory and injunctive orders sought.
I have studied the records of appeal and find clearly that the Originating Summons at the trial Court threw up a pre-election complaint pursuant to Section 31(5) of the Electoral Act, 2010 read along with the S. 285 (14) of the constitution. The 1st-3rd Respondents were, on the reasonable interpretation of S. 31(5) of the Electoral Act, 2010 not just Any Person but Any Person within the provisions of the Act, 21 of 2017″ as Amended and that all related to pre-election matters is clear on the authorities. We hold that to so find, is positive judicial activism to give vent to the constitutional intent and obligation imposed by the grundnorm in S. 285(9) of the 4th Alteration Act No. 21 of 2017. We shall rather do that than to embark on judicial rascality, a gateway to anarchy. The judex will do no such thing. We have arrived at this decision based on the law relevant and after an insightful and calm consideration of the Briefs of Argument filed, exchanged and adopted together with the most helpful oral elucidation made. We must mention,
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that we had, at the hearing, the great benefit of the oral adumbration on the Briefs as filed by the respective learned counsel for the parties. Indeed, they did not depart from (as they could not have so done) their arguments as expressed in their respective Briefs of argument except that the learned silk for the Appellants submitted a list of additional authorities, being the case of:
1. MR. ANTHONY ITANYI 2. MAJOR GENERAL BELLO SARIKIN YAKI (RTD) AND ALHAJI ABUBAKAR ATIKU BAGUDU AND 1. ALL PROGRESSIVE CONGRESS 2. INDEPENDENT NATIONAL ELECTION COMMISSION
Appeal No. CA/AK/698/2018 (unreported) decided on 17th December, 2018.
It is the decision of this Court sitting in Abuja Judicial Division. The Appellant had argued that it was on all fours with his stand and applicable and urged us to persist on particularly pages 28, 29, 33 of the judgment as relevant, apt and applicable. That the decision has established the mandatory and necessary application of the Section 285(7) of the constitution, fourth Alteration Act, to Section 31(5) of the Electoral Act under which the Originating Summons was brought
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(filed). The reliefs claimed in the Originating Summons was said to be a pertinent reason to so construe as argued and that the Bagudu case (Supra) was a most appropriate case for adaptation in this instance.
On his part and in oral adumbration of the Brief of Argument and in response relating the case of Bagudu (supra), the 1st-3rd Respondents counsel in adumbration urged against its applicability to the originating summons and for any association with same by 4th Respondent.
In this wise, I think its learned counsel was at liberty, I, surmise, to defend the Appeal and which included associating with the position that stood as his answer to the claim on the appeal. On the new authority of Bagudus case, whilst the question of retroactivity or retrospectivity of the 4th alteration Act as regarding suits filed before the Amendment was in issue, it is clear from the case that conclusion, nonetheless, is that the Amendment covered and related to the said S. 31 (5) of the Electoral Act, 2010 as shown by the clear and compelling language of the Amendment Act No. 21 2017. Per its Headnotes and side notes.
The absurdity in not applying
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same was highlighted as actions under Section 87 of the Electoral Act were covered by the Amendment to the constitution. The emphasis on the Clich?? that: What is good for the goose is good for the gander, was to bring/drive home the point of legislative intent that was geared towards presumption against absurdity in legislations; that is the basis for the reasoning that whilst a superficial or ex-facie reading of the Section 285(9) does mention the genre of persons covered and Section 31(5) of the Electoral Act by its any person left undefined must be defined by the interpretative duty and power of the Courts Viz-a viz the subject matter covered and by the ejusdem generis, Rule, the categories of persons already defined by the constitution which subordinates and covers the field by sub summing all other laws, Acts or legislations subordinate to it and which renders all other inconsistent laws null and void to the extent of the inconsistency, has subsumed the Section 31 (5) Electoral Act 2010 to the Section 285 (9) of the constitution totally.
The draft-man of Section 31 Electoral Act, 2010 could not have acted in vain; as
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it must have been enacted with a view to being utilized certainly by a category of people and the tenor of its invocation has been further streamlined to avoid the meandering journey in the desert of time uncertainty or desert of the intractable concept of locus standi under the common law, and to usher a constitutional departure from the era of uncontrolled discretion and indeterminate litigations and harassment by stale claims.
It is a genre of constitutional statute of limitation, so to say.
I am persuaded that the legislative intent of Section 285(9) of the 4th Alteration No. 21 of 2017, that is Supreme and covers and overrides all other laws/Acts including any other provisions of the constitution would not be inapplicable to Section 31(5) of the Electoral Act 2010, which related to persons and subject matters appertaining election and specifically before the conduct of election or acts done, such as a primary election preparatory thereto as in the primary Election in this case. Falsity of information in an affidavit submitted in Electoral process was a pre-election matter. The limitation of time provided must be read, such that it shall include
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and be referable to the suits of those other persons in Section 31(5) of the Electoral Act 2010 that may sue, thereon the allegations.
Indeed, their locus standi could arise and be determined by reference to the purport of the suit and interest above that of the general public. It is further in that respect, that the seemingly undefined, Any person will be canalized with definitive reference to Section 285 (14) of the Constitution 1999, 4th Alteration Act 2017 and the case of ADESANYA V. THE PRESIDENT FEDERAL REPUBLIC OF NIGERIA.
The 1st 3rd Respondents as Plaintiffs at the trial Court had by an Originating Summons brought under Section 31(5) of the Electoral Act 2010 as amended sought the following reliefs thus:
i. A DECLARATION that by the provision of Section 31 (5) of the Electoral Act, 2010 (as amended) and Section 25 (2) of the Electoral guideline of the Peoples Democratic party for the conduct of primary election that is false to the 3rd Defendant shall not be qualified or eligible to contest in a governorship election.
ii. A DECLARATION that the participation of the 1st Defendant at and his return as the
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winner of the governorship primary election conducted by the 2nd Defendant on the 21st of July, 2018 for the purposes of electing the gubernatorial candidate of the 2nd Defendant and his subsequent participation at the Osun State Governorship election of the 22nd of September, 2018 as the candidate of the 2nd Defendant is unlawful being in contravention of the 2nd defendants electoral guidelines and therefore null and void on account of false information and submission of false documents to the 3rd Defendant.
iii. A DECLARATION that in consequence of the ineligibility of the 1st Defendant, the 1st runner up at the said primary election conducted by the 2nd Defendant on the 21st of July, 2018, is the winner of the said primary election, thereby the candidate of the 2nd Defendant for the purpose of the Osun State Governorship election held on the 22nd of September, 2018 having won the highest of lawful votes cast by delegates at the said primary election.
iv. AN ORDER disqualifying the 1st Defendant from contesting as the candidate of the 2nd Defendant for the Osun State Governorship Election which was held on the 22nd of September, 2018 on
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accounts to the 3rd Defendant.
v. AN ORDER voiding all the purported votes allocated to the 1st Defendant at and his return as the winner of the primary election conducted by the 2nd Defendant on the 21st of July, 2018 which led to the nomination and the subsequent participation of the 1st Defendant at the Osun State Governorship election of 22nd September, 2018 as the candidate of the 2nd Defendant should be void on account of ineligibility, false information and submission of false documents to the 3rd Defendant.
vi. AN ORDER of Court directing the 3rd Defendant to strike out and/or delete the name of the 1st Defendant as the candidate presented to the 3rd Defendant having not met the constitutional requirement for his qualification and eligibility to contest or participate as a Governorship candidate in the Osun State Governorship Election held on the 22nd of September, 2018.
vii. AN ORDER of perpetual injunction restraining the 1st Defendant from parading himself or holding himself out in any manner or guise whatsoever as the nominated gubernatorial candidate of the 2nd Defendant for the Osun State Governorship Election held on the
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22nd of September, 2018.
viii. AN ORDER of perpetual injunction restraining the 3rd Defendant from dealing with or continuing to deal with or otherwise recognize the 1st Defendant as the validly nominated candidate of the 2nd Defendant for the Osun State Governorship election, 2018.
ix. AN ORDER declaring the 1st runner up, Dr. Akin Ogunbiyi as the said primary election conducted by the 2nd Defendant on the 21st of July, 2018, as the winner of the said primary election, thereby the candidate of the 2nd Defendant for the purpose of the Osun State Governorship election held on the 22nd of September, 2018 having won the highest of lawful votes cast by delegates at the said primary election and in compliance with the Constitution of the 2nd Defendant and its electoral guideline.
x. AN ORDER replacing the name of the 1st Defendant with the name of Dr. Akin Ogunbiyi, the 1st runner up at the said primary election conducted by the 2nd Defendant on the 21st of July, 2018, as the winner of the said primary election and thereby the candidate of the 2nd Defendant for the purpose of the Osun State Governorship election held on the 22nd of
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September, 2018 in compliance with the Constitution of the 2nd defendant and its electoral guideline.
The reliefs sought and the cause of action were clearly matters under Section 31(5)of the Electoral Act 2010 and were those relating to the nomination, qualification and alleged noncompliance with the electoral Act 2010 and the Constitution by the Defendants to the Summons, who are parties in this appeal.
Falsity of information and false documents as alleged are complaints against the validity of nomination of a candidate and is covered by the Section 87 of the Electoral Act relating the publishing of a list of candidates and their Affidavit and the right of challenge in a pre-election action.
This is a clear pre-election dispute brought in the Originating Summons. So clearly is the reference made to the holding of a primary election and dissatisfaction therein by the plaintiffs in their summons.
Their learned counsel had in his address in support of the summons at pages 40-44 of the Record of Appeal articulated this fact.
A counsel must be consistent just as a Court must be consistent in his case, both at the trial Court and on
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appeal, just as the Courts must be. See AJIDE V. KELANI’SÂ Â (1985) NWLR. Counsel cannot blow hot and cold for an appeal is after all, also a continuation of the case at the trial Court.
See the issues raised for the determination of the lower Court thus:
1. Whether the participation of the 1st Defendant at, and his return as the winner of the Governorship primary election conducted by the 2nd Defendant on the 21st of July, 2018 for the purposes of electing the gubernatorial candidate of the 2nd Defendant and his subsequent participation at the Osun State Governorship election of the 22nd of September, 2018 as the candidate of the 2nd Defendant, is NOT null and void on the account of the false information and submission of false documents by the 1st Defendant to the 3rd Defendant.
2. Whether all the purported votes allocated to the 1st Defendant at and his return as the winner of the primary election conducted by the 2nd Defendant on the 21st of July, 2018 which led to the nomination and the subsequent participation of the 1st Defendant at the Osun State Governorship election of 22nd September, 2018 as the candidate of the 2nd Defendant and
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submission of false documents to the 3rd Defendant.
3. Whether the 1st Defendant should not have being disqualified from contesting as the candidate of the 2nd Defendant for the Osun State Governorship Election which was held on the 22nd of September, 2018 on account of ineligibility, false information and submission of false documents to the 3rd Defendant.
4. Whether the name of the 1st Defendant should not be replaced with the name of the 1st Plaintiff who emerged as the 1st runner up at the said primary election, as the eligible candidate of the 2nd Defendant for the purpose of the Osun State Governorship Election which held on the 22nd of September, 2018, the said 1st runner up having scored the highest lawful votes cast at the said primary election conducted by the 2nd Defendant on 21st of July, 2018.
Even those and the address in adumbration speaks to the nature of claims as being pre-election matters.
The difference is that the Claimants then and now believe that it can be instituted any time and even after the election and by any person for they said so; and had argued that the reliefs sought be granted on the affidavit Evidence and
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documents annexed to the Summons alleging falsity of forms, qualification and nomination.
The trial Court recognized this fact and yet curiously thought that giving false information on the form of Declaration was not a pre-election matter. What could it be? Is it not one relating to violation of the Electoral Act and INEC Guidelines. It is and is captured by the definition of pre-election matter.
The publishing of a list of candidates and their affidavit and the right of challenge in a pre-election action.
This is a clear pre-election dispute brought in the originating summons. So clearly is the reference made to the holding of a primary election and dissatisfaction therein by the plaintiffs, in their summons. Their learned counsel had in his address in support of the summons at pages 40-44 of the Record of Appeal articulated this fact, a counsel must be consistent just as a party must be consistent in his case, both at the trial Court and on appeal, just as the Courts must also be. See AJIDE V. KELANIS 1985 NWLR. Counsel cannot blow hot and cold for an appeal is after all, also a continuation of the case at the trial Court.
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See again the issues raised for the determination of the lower Court, reproduced earlier and (supra).
It may be noted the trial Court had acknowledge the claim under S. 31(5) Electoral Act as being for false in formation in a declaration on affidavit filed for election. Why the somersault? In consequence, the Suit filed on the 30-7-2018 against the primary election conducted by the 2nd Appellant wherein the 1st Appellant was nominated as its candidate was a pre-election matter that was filed out of the constitutionally limited period of 14 days as provided for by Section 285 (9) CFRN, 4th Alteration No. 21 of 2017 and was, therefore, incompetent. Indeed, the trial Court no longer had jurisdiction to entertain the matter at the time it did. The incompetent suit ought to have been struck out. Accordingly, this appeal ought to be allowed and the suit vide the originating summons should be struck out and the Ruling delivered thereon on the 1st February 2019 be set aside, as this Court aptly stated in APC & ORS V. INEC 286 CAGS per Mukhtar, JCA:…To do otherwise as stated if the situation is encouraged it will breed uncertainly in the
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polity when a person may wake up a year or more after an election and swearing in of a President or Governor to Challenge his nomination by way of substitution for an election that brought him to power or he may even do so after the tenure of the office of office of official concern which attitude ought not to be encouraged by the Law. That Section 285 (9) of the 4th alteration, Act NO. 21 applies to Section 31 (5) and Section 87 (9) of the Electoral Act 2010 and to who were affected in any way with the conduct of the primary Elections or participation therein or/ and who were aggrieved in the circumstances and had taken action before the main Election but within 14 days of the primary election. That would be the reasonable meaning to give to that provision, thus bringing into being the interpretative approach eloquently adopted by the Supreme Court in ABUBAKAR V. YARADUA (2008) 19 NWLR PT (1120) p. 1 ratio 11, (supra). That approach meets the Justice of this case; else I fail to understand how a recognized right will stand in its exercise in violent contradiction to the imperative provision of the Constitution Section 285 (9) and
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(13-14) thereof being the third Alteration Act No. 21 of 2017. The Section 31(5) of the Electoral Act, 2010 is not constructively inconsistent with the constitution and therefore can not be declared void, as after all it cannot be nugatory or effectual when read along with the constitution to serve its purport.
Accordingly, I resolve the lone common issue formulated in favour of the Appellants and allow this appeal; I also set aside the Ruling of 1-2-19 and in consequence, I strike out the Originating Summons filed in suit No FHC/OS/46/18 between the parties herein on the ground of the incompetence of the suit thereat.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment just delivered by my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA was made available to me in draft form which I perused. My brother digested both the main and salient issues in the appeal. Issues and also eloquently resolved all the legal matters therein.
I am in firm agreement with the reasoning and conclusion arrived at with nothing useful to add thereto. Rather abide by the resolutions contained in the lead judgment.
The appeal is meritorious
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and allowed by me in the sequence of the orders made.
Parties to bear their costs of prosecuting the appeal.
PATRICIA AJUMA MAHMOUD, J.C.A.: The main issue to determine in this appeal in my view is whether the matter is a pre-election matter. If it is then the 4th alteration to the Constitution comes into play. SECTION 14 thereof defines a pre-election matter as:
“(14) For the purpose of this section, “pre-election matter” means any suit by-
(a) An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been compiled with by a political party in respect of the selection or nomination of candidates for an election;
(b) An aspirant challenging the actions, decision or activities of the independent National Electoral Commission in respect of his participation in an election or who complains that the provision of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been
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compiled with by the independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been compiled with by the independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election”.ITANYI V. BAGUDU
See the case of ITANYI V BAGUDU (UNREPORTED) Appeal No: CA/A/698/2018 delivered on the 17/12/2018. If indeed the respondent’s argument is that Section 14 is inapplicable then they have not properly invoked the jurisdiction of this Court as they have submitted themselves to the hearing of this appeal as a pre-election matter necessitating our sitting late on Friday and today Saturday to meet the deadline of 60 days for the
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determination of appeals in pre-election matters.
“Any person” in SECTIONS 31(5) & 87(9) of the ELECTORAL ACT as amended must be read in line with SECTION 14 of the 4th Alteration which defines a pre-election matter. If there is any inconsistency between the two legislations the Electoral Act has to give way to the superior provisions of the Constitution. To seek to create two classes of persons who can bring a pre-election matter as being sought in this case by the respondent is not only but will create the greatest absurdity imaginable. The purpose of law is to cure and not create absurdity.
It is for this reason and the fuller reasons given by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA in the lead judgment that IÂ too allow this appeal. I abide with all the consequential orders made therein.
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Appearances:
Nathaniel O. Oladiran Oke, SAN with him, A. O. Oladele, Esq., A. A. Odumosu and O. MabekojeFor Appellant(s)
Gboyega Oyewole, SAN with him, Olufemi Ayandokun for the 1st-3rd Respondents.
Peter A. Adeosun for 4th Respondent For Respondent(s)
Appearances
Nathaniel O. Oladiran Oke, SAN with him, A. O. Oladele, Esq., A. A. Odumosu and O. Mabekoje For Appellant
AND
Gboyega Oyewole, SAN with him, Olufemi Ayandokun for the 1st-3rd Respondents.
Peter A. Adeosun for 4th Respondent For Respondent
