THE STATE VS FATAI AZEEZ & ORS
May 30, 2025FRANK UWAGBOE V THE STATE
May 30, 2025Legalpedia Citation: (2008) Legalpedia (CA) 01434
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Tue Apr 15, 2008
Suit Number: CA/PH/EPT/489/07
CORAM
SAKA ADEYEMI IBIYEYE JUSTICE, COURT OF APPEAL.
CLARA BABA OGUNBIYI JUSTICE, COURT OF APPEAL.
PAUL ADAMU GALINJE JUSTICE, COURT OF APPEAL.
OLUKAYODE ARIWOOLA JUSTICE, COURT OF APPEAL.
GEORGE OLADEINDE SHOREMI JUSTICE, COURT OF APPEAL.
PARTIES
ALL PROGRESSIVE GRAND ALLIANCE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Gubernatorial Elections were stated to be held throughout the 36 States of the Federation on the 14th of April 2007, by the Independent National Commission in Imo State, midway into the said election, INEC, though as Resident Commissioner in Imo State suspended the election and shifted same to a later date citing disturbance of peace as the reason for doing so. The Appellant, a political party who participated in that election was not satisfied with the declaration and return of the 1st Respondent as the elected Governor of Imo State and the suspension of the election filed a petition at the Governorship and Legislative Houses Election Petition Tribunal sitting at Imo State, praying amongst others for a declaration that the 2nd and 3rd Respondents have no statutory powers to cancel or nullify the result of the Governorship election held in Imo State on 14/4/07 and that the 2nd and 3rd Respondents acted ultra vires their powers when they cancelled or nullified the result of the Governorship election held in Imo State on 14/4/2007. At the end of the trial, the Tribunal dismissed the petition. Dissatisfied with the decision of the Tribunal the Appellant has appealed to this Court.
HELD
Appeal Dismissed
ISSUES
The propriety and competence of the appellant’s petition having due regard to the provisions of section 285(2) of the constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006;Whether the tribunal was right in declining jurisdiction on the matter of cancellation of schedule election
RATIONES DECIDENDI
PROOF OF EVIDENCE – ON WHOM LIES THE BURDEN OF PROOF
“On the general principle of law that he who asserts a matter in the positive has the burden of proving same”. PER G. O. SHOREMI, J.C.A
JURISDICTION OF THE COURT -THE RELIEF SOUGHT DETERMINES THE JURISDICTION OF THE COURT
“It is trite law that the relief sought by a claimant or plaintiff serves to determine the jurisdiction of the court. See the cases of C.G.G. (Nigeria) Ltd. v. Ogu (2005) 8 NWLR (Pt.927) 366 at 381 – 2; Adeyemi v. Opeyori (1976) 9 & 10 S.C at 51 – 52. PER C. B. OGUNBIYI, J.C.A
GROUNDS OF APPEAL -WHETHER A COMPETENT ISSUE CAN BE DISTILLED FROM BOTH COMPETENT AND NON-EXISTENT GROUND OF APPEAL
“It is trite law therefore that there cannot be a competent issue distilled from both competent and a non-existent ground of appeal”. PER C. B. OGUNBIYI, J.C.A
ELECTION PETITION – CONTENT OF AN ELECTION PETITION
“By virtue of paragraph 4(1)(c) of the first Schedule to the Electoral Act, 2006, 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 the electoral body. This provision is mandatory, and non-compliance with it in any election petition filed renders such petition void. See Ojong v. Duke (2003) 14 NWLR (Pt.841) 581 at 611; paragraphs D – E; Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446; Mudiagu-Erhueh v. INEC (1999) 12 NWLR (Pt.630) 288; Basheer v. Same (1992) 4 NWLR (Pt.236) 491; Owuru v. INEC (1999) 10 NWLR (Pt.622) 201; Ezeobi v. Nzeka (1989) 1 NWLR (Pt.98) 478”.PER P. A.GALINJE, J.C.A
LACK OF JURISDICTION – THE PROPER ORDER A COURT SHOULD MAKE WHERE IT LACKS JURISDICTION TO HEAR A MATTER IS THAT OF STRIKING OUT
“It is trite law that where a court or tribunal lacks the jurisdiction the proceedings before it ought to be struck out. The authority in the case of Olutola v Unilorin (2004) 18 NWLR (Pt.905) 416 is very apt and in point on proper order to be made by the Court of Appeal where trial court lacked jurisdiction to hear a matter ab initio. At page 459 of the report for instance, Ejiwunmi JSC had this to say:-
“Since the trial court lacked the competence to adjudicate upon the matter, the court below was right to have struck out the case. As the appeal against that judgment is devoid of any merit, this appeal must be dismissed and the judgment of the court below striking out the case is hereby affirmed.”PER C. B. OGUNBIYI, J.C.A
ELECTION PETITION -AN ELECTION PETITION CHALLENGES THE INVALIDITY OF THE ELECTION BY REASON OF CORRUPT PRACTICES OR NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT- SECTION 145(1)(B) OF THE ELECTORAL ACT, 2006
“By the very nature of section 145(1)(b) of the Electoral Act 2006 supra, any petition predicated challenges the invalidity of the questioned election by reason of corrupt practices or non-compliance.”PER C. B. OGUNBIYI, J.C.A
DEFECT IN COMPETENCE OF A COURT -WHEN THE SUBJECT MATTER OF A CASE IS NOT WITHIN THE JURISDICTION OF A COURT, THE COURT LACKS COMPETENCE AND IS RUBBED OFF ITS JURISDICTION TO ADJUDICATE ON SUCH MATTER
“It is trite that when the subject matter of a case is not within the jurisdiction of a court or tribunal or there is feature in the case which prevents the Court or tribunal from exercising its jurisdiction, the court is said, to lack competence and is rubbed of its jurisdiction to adjudicate on such matter. The reason being that any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided, because the defect is extrinsic to the adjudication. See; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, Mark & Anor, Vs. Eke (1997) 11 NWLR (Pt. 52) 501, (1004) 2 SCM 141 at 165”.PER O. ARIWOOLA, J.C.A
COMPLAINT OF AN UNDUE ELECTION OR RETURN -GROUNDS UPON WHICH AN ELECTION MAY BE QUESTIONED -SECTION 145(1) OF THE ELECTORAL ACT
“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 unlawful excluded from the election.” PER C. B. OGUNBIYI, J.C.A
JURISDICTION OF A COURT -JURISDICTION OF A COURT IS STATUTORY
“It is expedient to restate that the jurisdiction of a court or tribunal is not inferred or imagined but statutory.”PER C. B.OGUNBIYI, J.C.A
COMPETENCE OF AN ELECTION PETITION -INGREDIENTS A PETITIONER MUST SATISFY THE COURT WITH FOR THERE TO BE A VALID AND COMPETENT PETITION
“In other words, to have a valid and competent Petition a petitioner must satisfy the court that:
a) There was an Election or a return wherein the Petitioner is complaining that the election was “undue” and that the return was undue.
b) The Result of the election must have been declared.
c) There must be a person elected or returned”. PER G.O. SHOREMI, J.C.A
POWER OF AN ELECTION TRIBUNAL – AN ELECTION TRIBUNAL HAS EXCLUSIVE POWER TO HEAR ELECTION PETITIONS
“An Election Tribunal is only given exclusive power to hear election petitions. Its power does not extend to conducting all trials in respect of elections and does not confer on it authority to handle preliminary issues or matters that take place before elections were held. See Jang v. Dariye (2003) 15 NWLR (Pt.843) 436 at 460 paragraph E – F”. PER P. A. GALINJE, J.C.A
PURPOSE OF AN ELECTION – THE PURPOSE OF HOLDING AN ELECTION IS TO DETERMINE THE WISHES OF THE PEOPLE AS TO WHO SHOULD REPRESENTS THEM IN THEIR LEGISLATIVE AND EXECUTIVE SETUP
“The purpose of holding an election in a democratic set up, is to determine the wishes of the people as to who should represents them in their legislative and executive setup, it is therefore necessary to ensure that any election conducted is done in a way that would substantially ensure that the main objectives is substantially met”. PER G. O. SHOREMI, J.C.A
ELECTION PETITION – AN ELECTION PETITION MUST CHALLENGE THE ELECTION OF A CANDIDATE RETURNED AS VICTOR
“It is clear from the foregoing authority that as a mandatory prerequisite, the petition must question or challenge the election of a candidate returned as victor. This fact must be clearly and unequivocally be established on the petition. In the absence of a returned victor there can therefore be no petition”. PER C.B.OGUNBIYI, J.C.A
CANCELLATION AND RESCHEDULING OF AN ELECTION -A TRIBUNAL LACKS JURISDICTION IN THE CANCELLATION AND RESCHEDULING OF AN ELECTION
“Cancellation of elections is a post-election issue and rescheduling a fresh election is a pre-election issue as it relates to the cancellation and rescheduled elections over which this Tribunal has no jurisdiction.”PER G. O. SHOREMI, J.C.A
COMPETENCY OF A COURT – WHEN IS A COURT SAID TO BE COMPETENT?
“A court is competent when the case 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”.PER C. B. OGUNBIYI, J.C.A
STATUS OF PROCEEDINGS OF AN INCOMPETENT COURT -THE PROCEEDINGS OF AN INCOMPETENT COURT HAS NO LEGAL EFFECT AND FORCE OF LAW
“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.”PER C. B.OGUNBIYI, J.C.A
POWER OF INDEPENDENT ELECTORAL COMMISSION TO CANCEL ELECTIONS – THE INDEPENDENT ELECTORAL COMMISSION HAS POWER TO CANCEL ELECTIONS WHICH HAVE COMMENCED
“Upon the state of legal authorities, it looks settled that INEC has power to cancel elections which have started but are substantially flawed by an intervening cause before conclusion. See Sowemimo Vs. Awobajo (1999) NWLR (PT.610), Aonodoaka Vs. Ajo (1999) 1 NWLR (PT.602)”.PER G. O. SHOREMI, J.C.A
PROCESSES IN AN ELECTION -WHERE THE PROCESSES IN AN ELECTION IS DISTURBED, IT AFFECTS THE CONCLUSION OF THE ELECTION
“Therefore if any of the processes in an “election” commencing with accreditation and ending with the announcement of result by INEC is disturbed it affects “conclusion” of the particular election (to post) fresh election to that post should be ordered.” See also Igodo V. Owulo (1999) 5 NWLR (PT.601) PAGE 70 at 77 PARAS B – D”.PER G. O. SHOREMI, J.C.A
CANCELLATION OF ELECTION – WHETHER INDEPENDENT ELECTORAL COMMISSION HAS POWERS TO CANCEL AN ELECTION AFTER THE RESULT HAS BEEN ANNOUNCED
“It is also clear that INEC has no power to cancel elections after the result has been announced. See Balonwu Vs. Ikpeazu (2005) NWLR (PT.942) Abana Vs. Obi (2004) NWLR (PT.881).”PER G. O.SHOREMI, J.C.A
CASES CITED
ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999Electoral Act, 2006
