AIR COMMODORE SALISU YUSHA’U ABDULLAHI (RTD) & ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

Legalpedia Citation: (2023-05) Legalpedia 00679 (CA)

In the Court of Appeal

KANO JUDICIAL DIVISION

Fri May 5, 2023

Suit Number: CA/KN/EPT/HR/01/2023

CORAM

Ita George Mbaba JCA

Patricia Ajuma Mahmoud JCA

Usman Alhaji Musale JCA

PARTIES

1. AIR COMMODORE SALISU YUSHA’U ABDULLAHI (RTD)
2. NEW NIGERIAN PEOPLES PARTY (N.N.P.P)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALHASSAN ADO GARBA
3. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

At the Election, conducted on 25/2/2023, the 2nd Appellant (N.N.P.P) had sponsored the 1st Appellant at the said election to the Federal Constituency office, while the 3rd Respondent (APC) had sponsored the 2nd Respondent in the said Election. At the end of the election exercise, the 2nd Respondent was declared the winner, but because the Returning Officer of the Constituency made a Report to the 1st Respondent, to the effect that the declaration and return of the 2nd Respondent as winner was made under duress, the declaration was cancelled by INEC, Appellants therefore filed a Petition at the Tribunal challenging the declaration and return of the 2nd Respondent as the winner of the Election, on 17/3/2023. The first respondent subsequently decided to conduct a re-run/ supplementary election in 13 polling units of the constituency.

The Appellants filed a motion to stop the Re-run/supplementary election. The tribunal through Chief Magistrate Abdulrahman Idris (Member 2), held that it had no jurisdiction to entertain the Motion and struck it out.

That is the decision Appellants appealed against and also the fact that the 1st Respondent had conducted the said Re-run/Supplementary Election on 15/4/2023, as scheduled (despite an application before this Court to stop it, which was later withdrawn on 26/4/2023).

HELD

Appeal dismissed

ISSUES

Ø Whether the Tribunal correctly determined the Issue of jurisdiction in the application of Section 285 of the Constitution of the Federal Republic of Nigeria 1999, as amended, when there is a pending Petition before the Tribunal. (Ground 1)?

Ø Whether the Tribunal acted judicially and judiciously in determining the application of the Appellants when it suo motu changed the date of hearing the motion on notice without hearing from the Respondents, and refused to consider the core issue in the application?

RATIONES DECIDENDI

PRE-ELECTION MATTERS – THE COURT SADDLED WITH JURISDICTION IN RESPECT OF PRE-ELECTION MATTERS

In view of the fact that an election petition can only mature, upon the declaration of the result and return of a winner, to vest jurisdiction on an Election Tribunal to entertain petition, arising from the conduct of the Election, (as per Section 285 (1) (2) of 1999 CFRN (as amended) and Section 133 (1) (2) of the Electoral Act, 2022), the complaints envisaged in the Section 24 (6) of the Electoral Act can therefore not be ventilated at the Election Tribunal, in my opinion. (And this Court (Court of Appeal) is meant to hear or take only Appeals from the lower Court or Tribunal).

It would appear, therefore, that the appropriate venue to take and consider such complaints against the decision of the Commission (INEC), under Section 24 (6) of the Electoral Act, would be the High Court, preferably the Federal High Court, to which the Electoral Act, by Section 84 (1), has saddled with issues relating to Pre-election matters. – Per I. G. Mbaba, JCA

INCONCLUSIVE ELECTION – WHEN ELECTIONS ARE DECLARED TO BE INCONCLUSIVE ELECTIONS

There are clear and established judicial procedures on how to deal with a situation of inconclusive election, which in my view, cannot accommodate this case by the Appellants. The law does not permit Appellants to originate a petition at the Election Tribunal, to seek redress against inconclusive election and to seek order(s) to stop the conduct of re-run/supplementary election, ordered as a result of the declaration of inconclusive election. It does not also envisage an order to set aside a conducted Re-run/supplementary election and to nullify the result thereof, as prayed by Appellants.

In the case of APGA v. Ohakim & Ors (2008) LPELR-379 (CA) this Court stated when a Court or Tribunal is seised with jurisdiction to entertain a case; thus:

It is expedient to restate that the jurisdiction of a Court or Tribunal is not inferred or imagined but statutory. The above constitutional and statutory provisions therefore explicitly delineate the power and jurisdiction of the Tribunal. In other words, Section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 vests the Tribunal with the jurisdiction to the exclusion of any other Court. Whilst the Constitution therefore provides that the Tribunal has original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor, the Electoral Act stipulates that in order to validly present a petition it must be in respect of an election and a return. The complaint of an undue election or return must have been arisen out of the allegations enumerated in Section 145(1) of the Electoral Act as follows:

“145(1) An election may be questioned on any of the following grounds.

(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast at the election, or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

The issue at hand relates to cancellation or nullification of an election and which does not fall within the ambit of Section 145(1) of the Act relating the four grounds upon which an elect may be questioned. It rather stands outside the compartmentalization envisaged by the Sub-section.

Section 285(3) of 1999 CFRN provides for National and State Houses of Assembly, with the same provision.

It was further stated in that case, in respect of Election Petition:

Where a Court/Tribunal is incompetent, the proceedings before it no matter how eloquently and well conducted, could be anything else but certainly lacking in legal effect and would have no force of law. A Court or Tribunal must be competent and this cannot in any way be compromised.

A Court is competent when the case that comes before it is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the case of Okonkwo v. INEC (2004) 1 NWLR (Pt.854) 242. In that decision, reliance was made on the locus classical case of Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 in spelling out the competence of a Court. At page 293 of Okonkwo’s case therefore their Lordships had this to say:-

“A Court is competent when:

(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction'”

Specifically, in respect of Inconclusive Elections, the law is trite, that a petition cannot be activated at Election Tribunal, or Court, in a situation an election has been declared inconclusive. The process (election) has to be conducted and completed before a valid petition can lie upon it. See the case of APC v. Adeleke (2019) LPELR–47736 (CA); where this Court held that a petition would be incompetent, where the petitioner prays to be declared a winner of an election that was declared inconclusive.

In the case of APC v. Kigbu & Ors (2015) LPELR- 46224 CA. it was held:

There are abundant evidence that the election of 28th March, 2015 in respect of Chiroma ward was declared inconclusive. An act, in the eyes of the law, is inconclusive when it does not lead to a conclusion or definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. Since it was declared inconclusive, the winner was not declared as ordained by the sacrosanct provision of Section 27(2)(d) of the Electoral Act. ​

On this premise, it is my view that the jurisdiction of the Tribunal was in abeyance after the cancellation of the election of 28th March, 2015 in Chiroma ward. Upon what declaration or return would the first and second respondents predicate their petition? There was none. Their cause of action germinated the moment the fourth respondent was declared the winner of the rerun election held on 18th April, 2015. That was when the jurisdiction of the Tribunal was ready to be ignited by an aggrieved candidate. Hitherto, the jurisdiction of the Tribunal was in incubation and any petition filed during that period was premature. The scintillating arguments of the first and second respondents on this point are unanswerable and impregnable. They did not defile the law at the time their petition was filed. I endorse them in toto.”(DISSENTING) Per OGBUINYA, JCA (Pp. 21-22, paras. B-D).

In that case of APC v. Adeleke (Supra) this Court relied on the Supreme Court decision Faleke v. INEC & Ors (2016) 18 NWLR (Pt. 1543) 61 at 172-173, to say:

“The election of 21/11/2015 was inconclusive, since the supplementary election was held on 5^th December and that was the conclusive election which he was challenging. Now for the appellant to later say that the election held on 21/11/2015 was conclusive, I think one can say that he was blowing cold and hot at the same time. I share the views of both the Tribunal and the lower Court that the election held on 22/11/2015 was inconclusive as rightly declared by INEC…” It would therefore be pre-mature for INEC to declare a winner at that stage as it rightly decided to hold a supplementary election on 5/12/2015 which it has power to do under Section 160 (1) of the Constitution and Section 73 and 153 of the Electoral Act as (amended) and also under the Manual for Electoral officers. See CPC v. INEC (2011) LPELR -8257 at 54 – 55… I hold the view that INEC could not have declared or returned any winning candidate at that stage, until after holding the supplementary election and declaring result of same after merging the votes scored by contestants of the election held on 5/12/15 with those scored in the election held on 21/11/2015.”

At page 162 of the same case of FALEKE v. INEC (SUPRA) OKORO JSC state that-

“It is also my view that elections in all the units in the State must be concluded before anybody can be deemed to have been elected. Thus even if one of the candidates meets the constitutional requirement in the middle of the process, he cannot be deemed to have been duly elected because anything can happen after elections are held in all the remaining voting units. There must be a formal declaration or return by the Electoral body before a person can claim to have been duly elected. See OHAKIM v. AGBASO (2010) 19 NWLR (pt 1226) 172 at 239G. – Per I. G. Mbaba, JCA

RE-RUN ELECTION – WHEN PARTIES TAKE PART IN THE RE-RUN ELECTION THEY ARE SEEKING TO SET ASIDE

There was evidence that Appellants even took part in the re-run/supplementary election, conducted on 15/4/2023. See paragraph 3(i) of 3rd Respondents Counter affidavit which stated “that the appellants FULLY PARTICIPATED” in the election held on 15/4/2023 (and this has not been denied by Appellants), therefore the application for this Court to set aside the conduct of the re-run/supplementary election, and to nullify the result, would amount to an afterthought, Appellants having taken part in the said re-run election. See, again, the case of Adeleke v. INEC (Supra), where it was held:

“In the instant case, the 1st and 2nd respondents, as petitioners, pleaded that they took part in the re-run election of 27/9/18 in paragraph 1 of their petition, where they averred that the 1st petitioner

“… Contested the election held on the 22nd September 2018 and the rerun election held on the 27th September, 2018 to the office of the Governor of Osun State, on the platform of the Peoples Democratic Party.”

That they scored and relied on the votes they scored in the rerun election can be seen by looking at paragraphs 6, 8, and 12 of the petition at pages 3, 7, 8 and 9 of the record, where they pleaded that they scored 254, 698 votes at the election of 22nd September 2018 and 255, 023 votes at the re-run election of 27th September 2018. In such a situation, they are estopped by law, from attacking and protesting the re-run election after it had been conducted. In SYLVA v. INEC (2016) 11 SC 52, the Supreme Court Per Muhammad JSC (as he then was) held in a similar situation thus-

“… one cannot eat one’s cake and have it and one cannot approbate and reprobate. Their participation in the rescheduled election has shown by their conduct, they had waived their right to protest any longer and are caught up by the cobwebs of both waiver and estoppel… the appellants willy nilly, are deemed or taken to have accepted the cancellation (if at all) or rescheduling of the Southern Ijaw Local Government area election of 6/12/15 and by their conduct and participation in the election of 9/1/2016, they are consequently estopped from disowning or distancing themselves from that election…”

Having taken part in the said re-run/supplementary Election of 15/4/2023, Appellants cannot, in good conscience, complain again against the said declaration of inconclusive election, and the conduct of the re-run/supplementary election of 15/4/2023.

The learned Senior Counsel for the Appellants knows, or should know, that it is after the re-run/supplementary election of 15/4/2023 and declaration of winner, therefrom, that a valid petition can lie, to challenge any person declared as winner of the said election.  – Per I. G. Mbaba, JCA

 

ELECTION TRIBUNAL – ELECTION TRIBUNAL HAS NO POWER TO RESTRAIN INEC FROM CONDUCTING RE-RUN ELECTION

By the provision of Section 285(2) of the 1999 Constitution, an Election Tribunal is only given power to hear election petitions. Its power certainly does not include the power to restrain INEC from conducting a rerun/supplementary election into any of the offices as scheduled for election by INEC. By the provisions of the Electoral Act, 2022, an election petition must state the holding of the election, the scores of the candidates, the person returned as the winner of the election and the official scores of INEC. This provision is mandatory and non-compliance with it renders any petition filed void. See BUHARI v. YUSUF (2003) 14 NWLR, PT 236 491 AND OJONG v. DUKE (2003) 14 NWLR, PT 841, 581 AT 611, PARAS D.E. – Per P. A. Mahmoud, JCA.

INCONCLUSIVE ELECTION – AN INCONCLUSIVE ELECTION DOES NOT CONSTITUTE A PRE-ELECTION MATTER

…after reviewing its position the 1st Respondent recalled the certificate of return issued to the 2nd Respondent, declared the election inconclusive and ordered a rerun/supplementary election in 13 units of the constituency to conclude the election. Assuming that the Appellant had gone to the tribunal immediately after the declaration, the commonsensical thing to do after the reviewed position of the 1st Respondent, INEC was to withdraw such a petition and await the outcome of the conclusion of the election and declaration of a winner. By the provisions of the extant electoral laws and decided authorities, an inconclusive election does not constitute a pre-election matter for which an aggrieved matter can go before the Federal High Court and the law is well settled that in an inconclusive election such as this, the jurisdiction of the tribunal is not activated and it therefore lacks the requisite jurisdiction to entertain the matter as properly held by lower Court. See IGBEKELE & ANOR v. INEC & ORS (2019) LPELR–48536. – Per P. A. Mahmoud, JCA.

COURTS – POWERS OF COURTS IN RELATION TO ELECTION MATTERS

Indeed, as observed by my learned brother in the leading judgment, this case does present novel points which may need to be taken up properly and decided upon. But based on the existing authorities, I am not aware of any law that gives the Court power to set aside an election whether rerun, supplementary or main properly conducted by the electoral empire, INEC. The contestants and their political parties no doubt have the constitutional right to challenge the result of any election as provided for in the extant electoral laws. Where the Court finds in their favour, it can nullify the election in a particular polling unit(s) and order a rerun or cancel the result for non compliance etc but not set aside the whole exercise as if it never happened as is being sought by the Appellant in the circumstances of this case. – Per P. A. Mahmoud, JCA.

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. INEC Regulations and Guidelines for the conduct of Election 2023.

 

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