TUKUR IBRAHIM v. ALHAJI YAHYA ISHAQ UMAR & ANOR
(2013)LCN/6211(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of December, 2013
CA/J/2/2013
RATIO
JURISDICTION: CONSIDERATION TO DETERMINE THE COMPETENCE OF COURT
The law is trite, whether a Court has the jurisdiction to entertain a suit before it is a matter to be decided by the claims or reliefs sought on the writ of summons and the statement of claim. See Adeogun vs. Fashogbon (2008) 17 NWLR Pt.1115 p.149; Adeyemi v. Opeyori (1976). 9-10 S.C. 37 and Tukur v. Government Gongola State (1989) 4 NWLR Pt.117 P.517.
In election matters the ordinary Courts have the jurisdiction to hear and determine pre-election matters touching and concerning the candidature for the election prior to the holding of the election notwithstanding the establishment of Election Tribunal. See Adeogun v. Fashogbon supra P.201. However, where the pre-election matter remains a live issue after the holding of the election, the ordinary Courts no longer have the jurisdiction to entertain and determine them. It is the Election Tribunal that would be seized of jurisdiction to hear such matters. See Salim vs. C.P.C. (2012) 6 NWLR Pt.135 p.501 at 524; Hassan v. Aliyu (2010) 17 NWLR Pt.1223 p.547; and Adeogun v. Fashogbon (2008) 17 NWLR Pt.1115 P.149 at 201.PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
TIJJANI ABDULAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
TUKUR IBRAHIM Appellant(s)
AND
1. ALHAJI YAHYA ISHAQ UMAR
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC) Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Bauchi, (hereinafter referred to as the lower court) presided over by Justice M.T. Salihu. The judgment was delivered on the 15th day of June, 2012, in favour of Alhaji Yahaya Ishaq Umar, (hereinafter referred to as the 1st Respondent) who was the Plaintiff at the lower court. Alhaji Tukur Ibrahim, (hereinafter referred to as the Appellant) was the Defendant at the lower court. Dissatisfied with the judgment delivered on 15th June, 2012, he appealed to this court vide Notice of Appeal dated and filed on the 26th of July, 2012.
Briefly, the background facts of the case are that the 1st respondent and the appellant were members of the 2nd respondent, a Political Party called and known by the name CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.). For the elections held on 28th of April, 2011, there was a primary election conducted to choose a candidate to represent Toro/Jama’a Constituency for a seat in the Bauchi State House of Assembly on the platform of the 2nd respondent, the Congress for Progressive Change (C.P.C.). The 1st respondent claimed that he was the one who was nominated as a candidate of the 2nd respondent to contest the election for a seat in the State House of Assembly for the said Constituency. That his name was forwarded to the Independent Electoral Commission (INEC) by the 2nd respondent, however, he later discovered that his name was substituted with the name of the appellant. Notwithstanding his protest to the 2nd respondent and the Independent National Electoral Commission (INEC) on the substitution of his name with that of the appellant, the Independent National Electoral Commission (INEC) conducted the election on the 28th April, 2011, and returned the appellant as the elected candidate for the Toro/Jama’a Constituency of Bauchi State. The 1st respondent was not satisfied with the return of the appellant by the Independent National Electoral Commission (INEC) hence he initiated a suit by originating summons against the appellant and Independent National Electoral Commission (INEC), seeking the resolution of the following questions:
1. Whether by virtue of Section 87 and particularly 87(4)(c) of the Electoral Act, 2010 (as amended) and the guidelines for the nomination of candidates for Presidential, Gubernatorial, Senatorial, House of Representative and House of Assembly Elections of the Congress for Progressive Change (C.P.C.), the Plaintiff having won the Primary election for Toro/Jama’a State Assembly Constituency of Bauchi State which was held on 11th Jan 2011 and whose name was validly returned as winner of the Primary Election conducted by the valid Chairman Electoral Committee on primaries and Congress, Bauchi State, Col. ISA GARKIDA USMAN (RTD) can be substituted, changed or replaced by Tukur Ibrahim the 2nd Defendant herein and not pursuant to Section 35 of the Electoral Act, 2010 (as amended).
2. Whether by virtue of Sections 33 and 35 of the Electoral Act, 2010 (as amended) and the Guideline for the nomination of candidates for Presidential, Gubernatorial, Senatorial, House of Representatives and House of Assembly Elections of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) the 1st Defendant can validly return in the Election held on the 28th April, 2011 the 2nd Defendant herein having lost in the Primary Election that was legitimately and lawfully conducted by the validly appointed Chairman Electoral Committee on Primaries and Congress, Bauchi State and the names of the 1st Plaintiff Alhaji Yahaya Ishaq Umar having been submitted and confirmed to the 1st Defendant as the legitimate and valid candidate of the 2nd Plaintiff Congress for Progressive Change (C.P.C.) in the said election.
3. Whether the 1st Defendant can validly/constitutionally return the 2nd Defendant’s name and not the 1st Plaintiff when the 1st Plaintiff, Alhaji Yahaya Ishaq Umar of the (C.P.C.) was the winner of the legitimate Primary Election conducted on 11th Jan 2011 at the Toro/Jama’a constituency of the Bauchi State Assembly and the 1st Plaintiff’s name submitted and confirmed canvassed for support, votes and won his election as Member Elect, Toro/Jama’a Constituency of the State Assembly.
4. Whether in the circumstance of this case and having regard to all the provisions of the Law, the 1st Defendant can constitutionally and legally take away the mandate of the 1st Plaintiff, Alhaji Yahaya Ishaq Umar and give same to the 2nd Defendant Tukur Ibrahim who lost the primary Election to the 1st Plaintiff.
The 1st respondent sought the following reliefs as a consequence of the resolution of the questions posed supra:
a. A DECLARATION that the 1st Plaintiff who won the Primary Election of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) held on the 11th Jan., 2011 by scoring the highest number of votes totaling 2409 votes is the candidate of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) in the 28th April, 2011 Toro/Jama’a State Constituency of the Bauchi State House of Assembly Election and his name cannot be substituted by the 2nd Defendant contrary to Sections 33 and 35 of the Electoral Act, 2010 (as amended).
b. A DECLARATION that any other person than the 1st Plaintiff cannot be returned including the 2nd Defendant Tukur Ibrahim who lost the primary election conducted by the 2nd Plaintiff Congress for Progressive Change (C.P.C.) on the 11th January, 2011 to the 1st Plaintiff and cannot be returned by the 1st Defendant as winner of the 28th April, 2011 Election for the Toro/Jama’a State Constituency of Bauchi State House of Assembly.
c. A DECLARATION that the 2nd Plaintiff nominated and sponsored only the 1st Plaintiff and not the 2nd Defendant in the election held on 28th April, 2011 for Toro/Jama’a State House of Assembly and therefore wrongly returned by the 1st Defendant.
d. A DECLARATION that the 2nd Plaintiff nominated and sponsored the 1st Plaintiff in the election held on 28th April, 2011 for Toro/Jama’a State Constituency of the Bauchi State House of Assembly, the 1st plaintiff having won the Primary Election held on the 11th January, 2011 and his name submitted to the 1st Defendant and the same confirmed, the 1st Defendant cannot validly return the 2nd Defendant as winner of the said election.
e. A DECLARATION that the substitution of the 1st Plaintiff’s name and return of the 2nd Defendant by the 1st Defendant contrary to Sections 33 and 35 of the Electoral Act, 2010 (as amended) is null and void.
f. A DECLARATION that the 1st Plaintiff having being presented as the candidate of the 2nd Plaintiff to the 1st Defendant and his name having being published by the 1st Defendant, the Defendant cannot validly, legally and lawfully change, substitute or replace the 1st plaintiff with any other person or the 2nd Defendant as the 2nd Plaintiff’s candidate for Toro/Jama’a State Constituency of the Bauchi State House of Assembly election held on the 28th April, 2011.
g. AN ORDER of perpetual injunction restraining the 2nd Defendant from parading himself as member elect representing Toro/Jama’a State Constituency election held on the 28th April, 2011 on the platform of the 2nd Defendant, CPC.
h. AN ORDER of mandatory injunction compelling the 1st Defendant to issue a Certificate of return as Member representing Toro/Jama’a State Constituency of the Bauchi State House of Assembly to the 1st Plaintiff having won his primary election conducted on the 11th Jan 2011 and his names submitted to the 1st Defendant by the 2nd Plaintiff and same later confirmed his candidature and having campaigned, canvassed for support and contested the 28th April, 2011 election and won.
After considering the originating summons together with the affidavit in support; the counter-affidavit of the appellant in opposing the granting of the reliefs sought by the 1st respondent and addresses of learned counsel, the learned trial judge of the lower court delivered his judgment on the 15th of June, 2012, granting all the reliefs sought by the 1st respondent. The appellant was dissatisfied with the judgment of the lower court hence appealed to this Court.
The appellant filed his appellant’s brief of argument on the 28th of May, 2013. The 1st Respondent filed his brief of argument on the 11th of June, 2013. A Reply brief was filed by the appellant on the 17th of June, 2013. The appeal was heard on the 21st of November, 2013, whereat learned counsel to the appellant Tsuwa Esq., adopted the briefs of argument and urged the court to allow the appeal and set aside the judgment of the lower court. For the respondent, Orute Esq., of learned counsel, adopted the brief of argument and urged the court to dismiss the appeal and affirm the judgment of the lower court.
On page 5 of the appellant’s brief of argument five (5) Issues have been distilled from the eight grounds of appeal which are as follows:
1. Whether from the totality of the surrounding facts and circumstances in it, this case can be properly said to be a pre-election matter. (Distilled from grounds two, five and seven of the grounds of appeal).
2. Whether from the totality of the reliefs claimed in the originating summons the Lower Court was compelled to assume jurisdiction to hear and determine this case and if not whether the Appellant’s preliminary objection ought to have succeeded. (Ground one of the grounds of appeal).
3. Whether the learned trial judge of the Lower Court was right to have refused to pronounce on the issue of the conflicts in the affidavit of the parties and the impropriety of hearing the case on the originating summons procedure due to the said conflicts in the affidavits, raised by the Appellant before him. (Distilled from grounds three and four of the grounds of appeal).
4. Whether from the available facts and evidence in this case, it is the name of the 1st Respondent that was first forwarded to the Independent National Electoral Commission (INEC) by the Congress for Progressive Change (CPC) as the candidate for Toro/Jama’a Constituency of Bauchi State and it is the reason why the Appellant filed Suit No: FHC/BAU/CS/41/2011 as held by the Lower Court. (Ground six of the grounds of appeal).
5. Whether the 1st Respondent can be said to have been the candidate of the Congress for Progressive Change (CPC) for Toro/Jama’a State Constituency of Bauchi State for the House of Assembly Election held on 28th day of April, 2011. (Ground eight of the grounds of appeal).
In the respondent’s brief of argument 2 (two) issues have been formulated for the determination of the court, these are:
1. Whether the Federal High Court was right when it held that it had jurisdiction to entertain the matter and went ahead to dismiss the preliminary objection of the Appellant? (Tied to grounds 1, 2, 5 and 7 of the grounds of appeal).
2. Whether from the totality of the evidence adduced before the lower court, the court was right when it held that the 1st Respondent was the lawfully nominated candidate of the 2nd Respondent representing Toro-Jama’a State Constituency of the Bauchi State House of Assembly and consequently granted the reliefs sought before it. (Tied to Grounds 3, 4, 6 and 8 of the grounds of appeal).
Issue I of the 1st respondent corresponds with Issue 2 of the appellant. Also Issue 2 of the respondent corresponds with Issue 4 of the appellant. In the resolution of Issues formulated for determination in an appeal, an appellate court can adopt the issues formulated by the parties or it can reframe the issues or it can even on its own formulate different issues for the determination of the appeal in so far as the issues so adopted or reframed or differently formulated have bearing or link with the grounds of appeal contained in the Notice and Grounds of Appeal filed by the appellant.
That an appellate court can adopt, reframe or formulate new issues for the determination of an appeal has the support of the Supreme Court for instance, in FRN Vs. Obegolu (2006) 18 NWLR Pt.1010 P.188 @ 25, it was held that after examining the issues formulated for determination as presented by the parties to an appeal; it is the duty of the appellate court to either adopt or reframe or formulate new issues for determination which it believes would determine the real complaint or grievances in the appeal. See Adaku vs. Adjeoh (1994) 5 NWLR Pt. 346 p.582; Ikegwuna vs. Ohawuchi (1996) 3 NWLR Pt. 435 p.146; Ekunala vs. CBN (2006) 14 NWLR Pt. 1000 p.252; and Jambo vs. Gov., Rivers State (2007) NWLR Pt.1062 P.198.
Issues 1 and 2 of the respondent have been captured in the issues formulated by the appellant as shown supra. So in the determination of the appeal, the five (5) issues formulated by the appellant would be resolved with the ultimate aim of determining the appeal. The issues for determination are therefore as contained on page 5 of the appellant’s brief of argument.
ISSUE ONE (1)
Whether from the totality of the surrounding facts and circumstances, this case can be a pre-election matter.
On page 206 of the record of appeal, the learned trial judge held thus:
“In the instant case being an election related matter, being a pre-election matter arising from the nomination exercise allegedly conducted by the 2nd plaintiff to elect candidate to represent it in the April, 2011 election for Bauchi State House of Assembly which exercise has generally been held by the courts to be within the exclusive domestic jurisdiction of the political party to the exclusion of the Courts of law see JANG VS INEC (2004) 12 NWLR (PART 886) 46 AT 75-76”.
Was the learned trial judge right in arriving at a decision that the case before him was one dealing with a pre-election matter arising from the nomination exercise?
On this issue, Tsuwa Esq., of learned counsel, contended on pages 7-9 of the appellant’s brief of argument that having regard to the 3rd question posed for determination in the originating summons; the relief sought in item (h) of the reliefs claimed and paragraphs 30-34 of the affidavit of the 1st respondent in support of the originating summons, the complaints of the 1st respondent are not only limited or deals with the nomination of a candidate. It has gone beyond the issue of nomination of a candidate to participate in an election, returning of a candidate at an election and winning an election. It was learned counsel’s further submission that the question posed for determination and the relief (h) sought in the originating summons have removed the issues in dispute from a pre-election matter to a post-election matter. In view of the foregoing, it was contended that the complaints of the 1st respondent at the lower court could not have been adjudicated upon by that court, not being a pre-election matter; rather it was a post election one. It was contended that the Federal High Court, the lower court, could not have the competence or jurisdiction in entertaining same but the Legislative Houses of Assembly Election Tribunal as provided for by Section 285(2) of the 1999 Constitution as amended.
Tsuwa Esq., further submitted that having alleged to have won the election conducted on 28th April, 2011, the 1st respondent cannot approach the lower court for address of his grievances, it ought to have been the Election Tribunal set up under Section 285(2) of the Constitution, 1999 as amended. Learned counsel adumbrated that the lower court was therefore in error to have entertained the 1st respondent’s case whereby it held that it had the jurisdiction to do so notwithstanding the respondent’s preliminary objection. This court has been urged to resolve this issue in favour of the appellant in holding that the lower court erred in law in assuming jurisdiction over a post election matter which it had no jurisdiction to do so.
For the respondents, Omozeghian Esquire submitted that where the qualification or disqualification is based on the nomination exercise of a Political Party, such exercise is a pre-election matter; no Election Tribunal has the jurisdiction to entertain such issue. The cases of Ucha vs. Onwe (2011) 4 NWLR Pt 1237; Odedo vs. INEC (2008) 13 NWLR Pt.117 p.54 and Section 185(1)(a) of the Constitution 1999 (as amended) were cited to buttress the submission supra. It was his further contention that the matter before the lower court was an intra-party dispute between the Members of a Political Party, therefore, the court with the competent jurisdiction to adjudicate on same is only the lower court. The case of Ogboru Vs. Ibori & Ors. (2004) All FWLR Pt.215 p.173 was cited to reinforce the submissions supra. It was further contented that the issue of nomination of a candidate for an election is a pre-election matter and the lower court had the jurisdiction to entertain same. A number of decided cases were cited in support.
On pages 7 to 13 of the respondent’s brief, learned counsel referred to paragraphs 3 to 34 of the appellant’s brief filed in support of the originating summons and adumbrated that on the totality of the averments contained therein the respondent’s case is a pre-election matter. The case of Katsayan Vs. Fago CA/K/EP/NA/23/11 (unreported) of the Court of Appeal was cited in amplification of the submissions supra. The learned counsel then did urge the court to resolve this issue against the appellant, in favour of the respondent.
In his Reply brief, Tsuwa Esq., submitted that all the decided cases cited and relied upon by learned counsel to the respondent were not on all fours with the instant appeal. Learned counsel dealt with each of the cases cited and distinguished the facts, circumstances and the principles of law that guided the courts in determining those issues canvassed. Learned counsel pointed out that in the appeal at hand which emanated from the decision of the lower court, the 1st respondent did aver in his supporting affidavit to the originating summons that he won the primary election and his name forwarded to the Independent National electoral Commission (INEC). That he canvassed for votes and won the election but the appellant was wrongly returned by Independent National Electoral Commission (INEC). Specifically, learned counsel referred to the averments in paragraphs 4, 5, 22, 33 and 34 of the said affidavit and submitted that from all indications, the issues before the lower court was not a pre-election matter; rather it was a post-election one. The point was also made that having instituted the case at the lower court on 23rd May, 2011, whereas the election was held on 28th April, 2011, the 1st respondent had lost his right to protest against what transpired before the election. That what he is complaining of was no more pre-election but post-election matter. The case of Salim vs. CPC (2013) 6 NWLR Pt. 1351 p.501 @ 524 was cited in reinforcement of the submissions supra. Learned counsel urged the court to discountenance the submission of the 1st respondent in his brief and resolve the issue in favour of the appellant.
In the Electoral Process Parlance, what is meant by “pre-election matter(s)?” In the case of Adeogan vs. Fashogbon (2008) 17 NWLR Pt.1115 p.149 @ 181, the dictionary meaning of the word “pre” is “before”, and when used as a prefix to the noun “election”, it therefore means before the election. In other words pre-election matter means actions, conduct or any event taking place or occurring before the election.
In order to arrive at a decision whether the complaints or grievances of the 1st respondent before the lower court tantamount to pre-election matters or not, the following are relevant factors to consider. (i) the nature and effect of question 3 posed in the originating summons filed by the respondent; (ii) the relief sought consequent to question 3 (iii) the averments of the 1st respondent in his affidavit in support of the originating summons; especially paragraphs 4, 5, 30, 31, 32, 34 and 35, thereof, and lastly (iv) the date the 1st respondent filed the originating summons seeking redress for his complaints or grievances regarding his alleged substitution with the appellant as a candidate in the election held on 28th April, 2011, for a seat in the Bauchi State House of Assembly, representing the Toro/Jama’a Constituency.
The 3rd question posed for determination in the originating summons filed before the lower court by the 1st respondent is reproduced hereunder:
QUESTION 3 (THREE)
“Whether the 1st Defendant can validly/constitutionally return the 2nd Defendant’s name and not the 1st plaintiff when the 1st Plaintiff Alhaji Yahaya Ishaq Umar of the (CPC) was the winner of the legitimate primary election conducted on 11th Jan., 2011 at the Toro/Jama’a Constituency of the Bauchi State Assembly and the 1st plaintiff’s name submitted and confirmed to the 1st defendant and 1st Plaintiff Alhaji Yahaya Ishaq Umar canvassed for support, votes and won his election as member elect, Toro/Jama’a Constituency of the State Assembly.”
The relief sought by the 1st respondent pursuant to question supra is thus:
RELIEF NO. (H)
“An order of mandatory injunction compelling the 1st Defendant to issue a Certificate of Return as member representing Toro/Jama’a State Constituency of the Bauchi State House of Assembly to the 1st Plaintiff having won his primary election conducted on the 11th Jan., 2011 and his name submitted to the 1st Defendant by the 2nd Plaintiff and same later confirmed his candidature and having campaigned, canvassed for support and contested the 28th April, 2011 election and won.”
The averments contained in the affidavit in support of the originating summons dated and filed on the 23rd of May, 2011 are as follows, paragraphs 4, 5, 30-34 are thus:
“4. That the 1st Defendant had conducted election for the membership of the Toto/Jama’a constituency on the 28th April, 2011 and the 1st plaintiff under the Platform of the 2nd Plaintiff had contested and won the said election.
5. That the 1st Defendant instead of returning the 1st Plaintiff it wrongly returned the 2nd Defendant name and issued him a Certificate of return.
30. That as at the 21st February, 2011 which was the last date for the submission of nominated candidate to the 1st Defendant the 1st plaintiff’s name was on all the publications made by the 1st Defendant hence the coming of the 2nd Defendant to the Hon. Court in the previous case.
31. That the 2nd Defendant’s name was never published as the candidate of the 2nd plaintiff and he was never sponsored for the 28th April, 2011 election.
32. That the 1st Plaintiff contested the primary Election and won, his name submitted by the 2nd Plaintiff to the 1st Defendant, canvassed and solicited for support in his constituency of Toro/Jama’a constituency of the Bauchi State House of Assembly and won the election conducted on the 28th April, 2011.
33. That the 1st Defendant wrongly returned the 2nd Defendant who lost the primary Election to the 1st Plaintiff whose candidature was not sponsored by the 2nd Defendant.
34. That even after the 1st Defendant wrongly returned the 2nd Defendant, the 2nd plaintiff wrote to the 1st Defendant informing them that they are returning the wrong person but the 1st Defendant turned a deaf ear. The letter dated 6th May, 2011 is annexed hereto marked as exhibit “J”.”
The originating summons initiating the suit of the 1st respondent seeking redress for the grievances or complaints caused by his substitution with the appellant was dated and filed on the 23rd of May, 2011, three weeks after the holding of the election on the 28th of April, 2011, as could be seen on page 1 and 4 of the record of appeal.
In view of the foregoing, was the learned trial judge right in holding on page 206 of the record of appeal that the case of the 1st respondent as presented before it was an election related matter being pre-election matter arising from the nomination exercise allegedly conducted by the 2nd respondent (C.P.C.) for the election held on the 28th of April, 2011? I do not think so. For as pointed out by per Odili, J.S.C., in the case of Salim Vs. C.P.C. (2013) 6 NWLR Pt.1351 p.508 @ 524-555 the issue of disqualification, nomination, substitution and sponsorship of candidates for an election preceded the election and therefore are pre-election matters, but where the complaint on these matters are after an election had been held or conducted and the results thereof have been released, such matters ceased to be pre-election matters and have become post-election matters. This is what the learned Justice said on pages 524-525:
“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post-election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those courts above mentioned as in this instance. See Tanimola v. Surveys Mapping Godatta Limited (1995) 6 NWLR (Pt. 403) 617; Ogbonna v. President of the Federal Republic of Nigeria (1997) 5 NWLR (Pt.504) 281; Ndulue v. Ibezim (2002) 12 NWLR (Pt.780) 139.”
Onnoghen, J.S.C. expressed similar opinion in the case of Hassan Vs. Aliyu (2010) 17 NWLR Pt.1223 p.547 @ 599 thus:
“I hold the view that at the time appellant decided to go to court in the circumstances of this case, the question of nomination by way of substitution which is a pre-election matter had ceased to exist leaving only the election proper to be questioned and the proper place to do so is the election tribunal.”
This Court, in the case of Bala A. Bako Vs. INEC & Ors. CA/J/EP/SN/G3/2013, unreported, delivered on the 17th of May, 2013, quoted with gratitude, Onnoghen J.S.C., in the case of Adeogun vs. Fashogbon (2008) 17 NWLR Pt.1115 p.149 @ 201 thus:
“Where the valid nomination but unlawful exclusion of a candidate at an election is a live issue after the conduction of the election, an Election Tribunal can be seized of jurisdiction to adjudicate. I think this is the intendment of the legislature in providing for the provisions of Section 138(1)(d) of the Electoral Act, 2010 (as amended). In such circumstances or situation the issue of valid nomination of a candidate but unlawfully excluded from the election becomes a post-election issue, and not a pre-election one. I think what the Supreme Court said in the case of Adeogun Vs. Fashogbon (2009) 17 NWLR Pt.1115 p.149 @ 201 reinforces what I have tried to elucidate supra. Onnoghen, J.S.C. had this to say on page 201 of the case supra:
“It should always be remembered that the issue as to whether the substitution of a candidate in an election is within Section 34 of the Electoral Act, 2006 or qualification of a candidate for an election remains a live issue before or after an election, that is why a candidate who losses an election, is empowered to raise, as a ground for the nullification of the said election which is by law assigned to the Election Tribunal as a post-election matter for determination.”
As earlier pointed out in this judgment, though the alleged substitution of the 1st respondent was before the election conducted on the 28th of April, 2011, the originating summons initiating the suit where he challenged the propriety or legality of the substitution was filed on the 23rd of May, 2011 whereas the election was held on 28th April, 2011. By this date the election was conducted and the results thereof released. See paragraphs 4, 5, 30, 31, 32, 34 and 35 of the affidavit in support of the originating summons. As pointed out in by Muntaka Commassie, J.S.C. in the case of Hassan Vs. Aliyu supra p.547 @ 604, any person who is of the view that he has been wrongly or improperly substituted as a candidate for an election, such a candidate must act promptly before the holding of the election. If he waited until the election took place, he can not rely on the fact or circumstances leading to his substitution as pre-election matter. By then it would have become a post-election matter. This is what the learned Justice said on page 604:
“On the other hand, where the candidate who was substituted did not take any step to seek redress, before the election took place, and a candidate declared as the winner, and thereafter seeks to be declared as the winner of the election, it is my view that the matter is no longer pre-election matter. That is, his right to pursue a pre-election matter ceases after the holding of the election except only, if the action is instituted before the holding of the election.”
Similarly, in this instant case on appeal to this Court the 1st respondent waited for almost 3 weeks to elapse after the election before he initiated the legal process to challenge his alleged substitution with the appellant for the election held on 28th April, 2011. By the decisions of the Supreme Court, as at the time the 1st respondent initiated the suit before the lower court on the 23rd May, 2011, the pre-election issue, he raised in the originating summons have metamorphosed to post election matters. I am therefore in full agreement with Tsuwa Esq., of learned counsel to the appellant, that having regard to question 3 in the originating summons and the relief sought pursuant thereto; the averments in paragraphs 4, 5, 30, to 34 of the affidavit in support of the originating summons and the date it was filed before the lower court, after the election having been held, the issues raised have became post-election matters; no longer pre-election matters. Consequently, I find no difficulty in resolving this Issue 1, in favour of the Appellant, I so resolve.
ISSUE TWO (2)
Whether from the totality of the reliefs claimed in the originating summons the lower court was competent to assume jurisdiction to hear and determine the case, and if not, whether the appellant’s preliminary objection ought to have succeeded.
When the appellant was served with the originating summons of the 1st respondent, he filed a notice of preliminary objection to the lack of jurisdiction of the lower court to entertain and determine the suit. The grounds relied upon by the respondents are that (a) having regard to the provisions of Section 285(1)(a) of the Constitution, 1999, as amended, and the nature of the claims by the respondent it was only a House of Assembly Election Tribunal that could have heard and determined the suit. (b) That having regard to the relief sought by the 1st respondent, the lower court lacked the jurisdiction to hear and determine same, (c) that having regard to the provisions of Section 138(1)(d) of the Electoral Act, 2010, as amended and the claims by the respondent, the lower court lacked the jurisdiction to entertain same. After considering the preliminary objection and the addresses of learned counsel to the parties, the lower court delivered its ruling on 15th June, 2012, and held as follows on page 187 of the record of appeal:
“In conclusion this suit being a pre-election matter can only be heard and determined by the Courts listed in Section 87(a) of the Electoral Act, 2010 (As amended) and this Court being one of the Courts listed therein is clothed with the jurisdiction to hear and determine this suit, and I so hold. Therefore, the preliminary objection of the 2nd defendant should and it is hereby dismissed with no costs.”
TSUWA Esq., of learned Counsel of the appellant submitted that it is the reliefs sought by a plaintiff in an action before a Court of law that determines the jurisdiction of such Court over the matter. Learned Counsel referred to the relief under item (h) of the reliefs sought in the originating summons and contended that the complaint of the 1st respondent was one of post-election matter, not pre-election, therefore, by the provisions of S.285(2) of the Constitution, 1999, as amended, and S.138(1)(d) 1 of the Electoral Act, 2010, as amended, the lower Court had no jurisdiction to entertain the suit. Rather he contended, the Legislative Houses of Assembly Tribunal had the jurisdiction to hear and determine same. Learned Counsel cited and relied on a number of decided cases to buttress his submissions supra, among which are; Ucha v. Onwe (2011) All FWLR Pt.580 P.1227 and Agbakoba vs. INEC (2000) All FWLR Pt 462 P.1037.
Concluding his submissions, learned Counsel adumbrated that having regard to the reliefs sought in the originating summons filed on the 23rd of May 2011; the averments in paragraphs 4, 5, 30 to 34 of the affidavit in support of the originating summons after the conduct of the elections, the proper venue for seeking redress of the grievances of the 1st respondent was the Election Tribunal, not the lower Court. The lower court therefore lacked the jurisdiction to entertain the suit and ought to have declined jurisdiction. The Court has been urged to hold so, and resolve this issue in favour of the appellant.
Omozeghian Esq., of learned counsel to the 1st respondent submitted that the issue of jurisdiction is paramount in the adjudication processes as was pointed out in the case of Kaffo v. CBN (1991) 2 NNCC Pt 7 P.757. Learned Counsel then cited the case of Madukolu v. Nkemdilim (1992), All NLP P.587 wherein the principles of law on when a Court of law can be said to have the jurisdiction to hear and determine a matter has been well-enunciated by the Supreme Court and submitted that all the conditions required by law for the lower Court to have the jurisdiction were satisfied. It was his further submission that in an election matter, where the issues of the qualification or disqualification of a candidate to contest an election is in dispute it is a pre-election matter and its is only the Court that has the jurisdiction to hear and determine same, not an Election Tribunal as contended by the learned Counsel to the appellant. Learned Counsel referred to S.185(1) (A) of the 1999 Constitution as amended and the cases of Ucha v. Onwe (2011) 4 NWLR Pt.1239 P.386 and Odedu v. INEC (2008) 17 NWLR Pt.117 P.54 to reinforce his submissions supra.
It was further submitted that the matter in dispute before the lower Court related to party disputes between members of a political party, the Court that had the jurisdiction to hear the dispute was the lower court. The case of Ogboru v. Iborotors (2004) All FNLR at 225 P.173 was cited in aid.
Learned Counsel referred to the averments in paragraphs 4 to 34 of the affidavit of the 1st respondent in support of his originating summons and contended that having regard to the averments therein, the dispute before the lower Court was a pre-election matter, the lower Court therefore properly assumed jurisdiction in hearing and determining the same. The case of Dingy v. INEC (2011) All FNLR Pt.581 P.142 was cited to buttress the submissions supra. It was his conclusion that from the totality of the submissions supra, the appellant’s preliminary objection was rightly over-ruled by the lower court. The Court has been urged to resolve the issue positively in favour of the 1st respondent that the lower court had the jurisdiction in entering and determining the matter before it per the originating summons filed on 23rd of May 2011.
The law is trite, whether a Court has the jurisdiction to entertain a suit before it is a matter to be decided by the claims or reliefs sought on the writ of summons and the statement of claim. See Adeogun vs. Fashogbon (2008) 17 NWLR Pt.1115 p.149; Adeyemi v. Opeyori (1976). 9-10 S.C. 37 and Tukur v. Government Gongola State (1989) 4 NWLR Pt.117 P.517.
In election matters the ordinary Courts have the jurisdiction to hear and determine pre-election matters touching and concerning the candidature for the election prior to the holding of the election notwithstanding the establishment of Election Tribunal. See Adeogun v. Fashogbon supra P.201. However, where the pre-election matter remains a live issue after the holding of the election, the ordinary Courts no longer have the jurisdiction to entertain and determine them. It is the Election Tribunal that would be seized of jurisdiction to hear such matters. See Salim vs. C.P.C. (2012) 6 NWLR Pt.135 p.501 at 524; Hassan v. Aliyu (2010) 17 NWLR Pt.1223 p.547; and Adeogun v. Fashogbon (2008) 17 NWLR Pt.1115 P.149 at 201.
Earlier on in this judgment, I had resolved Issue One (1) which has been formulated for determination by this court that the question posed in the originating summons and the relief sought thereby; the averments contained in paragraphs 4, 5, 30-34 of the affidavit in support of the originating summons and the filing of the originating summons after the election was held, the issues in dispute or controversy in the case before the lower court were not pre-election matters but post-election matters. Again, bearing in mind the foregoing factors enumerated above, can it be correct to hold that the lower court had the jurisdiction to have entertained the suit as presented by the respondent in the originating summons dated and filed on the 23rd of May, 2011? I do not think so. For as pointed out by the Supreme Court in the case of Salim v. C.P.C. (2013) 6 NWLR Pt.1351 P. 5010 524 – 525 per Peter Odili J.S.C.:
“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out the domain of pre-election can only go before the Election Tribunal to try his luck since the status of the matter was post election clearly outside the ambit of either the Federal High Court, State High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those courts above mentioned as in this instance. See Tanimola v. Surveys Mapping Godatta Limited (1995) 6 NWLR (Pt. 403) 617; Ogbonna v. President of the Federal Republic of Nigeria (1997) 5 NWLR (Pt.504) 281; Ndutue v. Ibezim (2002) 12 NWLR (Pt.780) 139.”
In Hassan v. Aliyu (2010) 17 NWLR Pt.223 p.547 at 6001, the Supreme Court held that a candidate who has been substituted at an election must act timeously to enforce his right of substitution and nomination of candidates, approach the competent court to seek for the enforcement of his rights before the real election takes place. He should not wait for the election to be held. This is so because if he waited until after the election to seek the enforcement of his rights, the pre-election matters involving his substitution or nomination would cease to be so and would become post-election matters to be adjudicated upon by the Election Tribunals only. This is what Muntaka Commossie J.S.C, said on page 604 of the case of Hassan v. Aliyu supra.
“On the other hand, where the candidate who was substituted did not take any step to seek redress, before the election took place, and a candidate declared as the winner, and thereafter seeks to be declared as the winner of the election, it is my view that the matter is no longer a pre-election matter. That is, his right to pursue a pre-election matter ceases after the holding of the election except only, if the action is instituted before the holding of the election.”
In the instant appeal at hand which emanated from the suit before the lower court was commenced by an originating summons dated and filed on the 23rd of May 2011, whereas the election at which the 1st respondent alleged he was substituted with the appellant was held on 28th April, 2011, and that the return of the appellant was unlawful, was no longer a pre-election matter. It had ceased to be so and became post-election matter of which the lower court had no jurisdiction to handle or entertain and determine it. The lower Court therefore erred in law by over-ruling the preliminary objection of the appellant to the competency of the matter before it and holding that it had the jurisdiction to entertain and determine same. In view of the foregoing, this issue 2 cannot but be resolved in favour of the appellant, that is to say that, having regard to the reliefs claimed in the originating summons dated and filed on the 23rd of May, 2011 the lower court had no jurisdiction in hearing and determining it, therefore, the preliminary objection by the appellant ought to have been sustained or upheld. Issue 2 is hereby resolved in favour of the appellant.
Having resolved Issues 1 and 2 in favour of the appellant would it be necessary to delve into the remaining three Issues to resolve them? Even if the court proceeds to resolve them, of what benefit would the resolution, either in favour of the appellant or the 1st respondent be? The resolution of Issues 1 and 2 is that the lower court had no jurisdiction to have entertained and determined the suit filed by the 1st respondent. Even if the court resolves Issues 3, 4 and 5, in favour of either of the parties, it would make no difference in that the lower court would have had no jurisdiction to have considered and resolved them to the benefit of either of the parties.
The law is trite, where a court has decided the principal issue in a suit before it, rendering the resolution of the other issues inconsequential, the court need not waste its valuable time in delving into such issues which are of no benefit to the parties and indeed the Court. To embark on the resolution of such issue is purely an academic exercise with no tangible benefit to the parties or the administration of justice in general. In illustration of what I have been saying supra, let me refer to the case of Oladaye vs. Administrator Osun State (1996), 11 NWLR Pt.476 P.38 at 60 wherein this court was faced with the question whether to proceed to construe the provisions of a repealed law or not. It was held that it would serve no purpose to construe a repealed law in that it would be of no benefit to the parties whatever construction was given. Onu J.C.A (as he then was) said:
“It is on the above premise that I regard the call to construe Section 22 the way the appellant has invited us to do as hypothetical and academic since it cannot help in the determination of the main issue”, See also Adeogun vs. Fashogbon (2005) 17 NWLR Pt.1115 p.149 at 18-181.
In Buhari vs. Obasanjo (2003) 17 NWLR Pt.850 P.587 @ 640 the Supreme Court per Belgore J.S.C. (as he then was) said:
“What is this Court to do knowing the event sought to be prevented had actually taken place. This appeal is a mere application for this Court to embark on adventure into academic discourse, a function not constitutionally our own.”
This Court in Aru Vs. Lagos Island Local Govt. Council (2004) 4 NWLR Pt.757 P.385 @ 415 per Onnoghen J.C.A. (as he then was) said:
“I have already resolved the issue as to whether the 1976 law is an existing law. Having held that it is not the sub-issue under consideration, it becomes a purely academic or hypothetical issue which this Court like every other Court has no jurisdiction to entertain.”
Again in Ezemuaji Vs. UNN (2006) 3 NWLR Pt. 967 P.325 @ 349 Adekeye, J.C.A. (as she then was) said:
“Courts of law, like nature do not act in vain but for a purpose, and the purpose must exist, be identifiable and identified.”
In this case at hand, having resolved that the lower court had no jurisdiction to have entertained and determined the case before it, of what use then would the resolution of Issues 3, 4 and 5 be? For without jurisdiction the lower court had no competence to adjudicate the matter before it. It is on this premise that I find it utterly unnecessary to delve into Issues 3, 4 and 5. In my view the resolution of Issues 1 and 2 have determined the appeal in favour of the appellant. The appeal therefore succeeds. The judgment of the lower court and the orders made therein are hereby set aside. I make no order as to costs.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the leading judgment of my learned brother, I.S. Bdliya, JCA just delivered. I am in complete agreement with his reasoning and conclusions arrived thereat.
His lordship, very admirably dealt with all the live issues that call for determination in the appeal under consideration.
As can be gleaned from the proceedings of the lower Court, even though the 1st Respondent claimed that his grievance originated from the primary election of the Congress for Progressive Change (CPC) which was conducted on the 11th day of January, 2011, he did not file his suit until the 23rd day of May, 2011 more than five months after the conduct of the said primary election and three weeks after the general erection was conducted.
I am of the firm view that by his conduct the Respondent had clearly taken out his matter from pre-election domain to that of post-election and the only appropriate tribunal to hear and determine his complaint is the Election Tribunal in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See Salim vs. C.P.C. (2013) 6 NWLR (Part 1351) page 508 at 524-555 and Hassan vs. Aliyu (2010) 17 NWLR (Part 1223) 545 at 559.
For these reasons and the more detailed ones ably marshaled out in the leading judgment, I too allow the appeal and abide by the consequential orders therein contained.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead Judgment of my learned brother, Bdliya, JCA. For all the reasons so ably set out in the Judgment I too would allow this appeal and abide by all the consequential orders of my learned brother, including the order on costs.
Appearances
A.A. Sangei Esq. with M.A. Tsuwa and S. Oyefemi Esq.For Appellant
AND
Clifford Omozeghia Esq.For Respondent
