JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL
ALL PROGRESSIVES CONGRESS
APPELLANTS
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE
The 1st Respondent is one of the registered political parties in Nigeria while the 2nd -42nd Respondents were the Governorship and House of Assembly candidates of the 1st Respondent in the Governorship and House of Assembly elections which took place in March, 2023 throughout Nigeria. The 1st -42nd Respondents alleged that the 43rd Respondent, INEC breached certain provisions of Regulations and Guidelines issued for the Conduct of Elections 2022 during the conduct of the Presidential and National Assembly elections which took place on the 27th February, 2023 in Lagos State. The 1st -42nd Respondents as Plaintiffs therefore by way of judicial review commenced the action that gave rise to this appeal against the 43rd Respondent as the sole Defendant seeking certain declarations and orders of mandamus against the 43rd Respondent. Prior to the filing of Suit No: FHC/L/CS/370/23 that gave rise to this appeal on the 2nd March, 2023, the 1st Respondent had earlier filed at Abuja division of the Federal High Court Suit No: FHC/ABJ/CS/1454/2022 by which it prayed the court to direct the 43rd Respondent herein to comply with Electoral Act, 2022 on electronic transmission of result in the forthcoming general election. The learned judge of the lower court EMEKA NWITE J. in a judgment delivered on the 23rd day of January, 2023 in Suit No: FHC/ABJ/CS/1454/2022 dismissed the 1st Respondent’s suit holding that on the interpretation of the provisions of sections 60(5) and 62(2) of the Electoral Act, 2022, INEC the 43rd Respondent herein is at liberty to prescribe or choose the manner in which election result shall be transmitted.
The learned judge of the lower court granted the prayers in part by granting certain orders of mandamus in favour of the 1st – 42nd Respondents against the 43rd Respondent. The Appellant herein who is also one of the registered political parties in Nigeria but was not made a party to any of the two suits felt aggrieved by the decision, obtained leave of this Court, and filed its Notice of Appeal on the 3rd day of April, 2023 against the said decision of the lower court as an interested party.
Appeal allowed
Whether having regards to the entire circumstances of the case, the lower court was right in granting the orders of mandamus against the 43 rd Respondent as it did?
…it is noteworthy that the Respondents did not file any brief to join issues in this Appeal despite being served the Appellant’s brief. In stating the implication of this failure, I will borrow the remark of this court PER AKEJU, J.C.A in NYONG V. ETENE & ORS (2011) LPELR-4264(CA) (PP. 2- 3 PARAS. F) who stated thus “It is noted in this appeal that the 2nd and 3rd Respondents failed to file briefs of argument the implication of which is that they have accepted the correctness of the issue in the briefs filed and they do not challenge the arguments therein. This failure to file brief however does not translate to automatic success of the appeal the merit of which depends entirely on the strength or force of the submission of the Appellant in his brief of argument based on the issue formulated therein as derived from the grounds of appeal. The failure of the 2nd and 3rd respondents to file their briefs does not fortify the submission of the appellant and the Court will still consider the justice of the appeal.” See also AKPAN VS. STATE (1992) 6 NWLR (PT.249) 439; ECHERE VS. EZIRIKE (2006) ALL FWLR (PT. 323) 1597. MAREM V. ISTIFANUS (2022) LPELR 57523 CA(PP. 12-13 PARAS. E). – Per A. S. Umar, JCA
It is common knowledge that the 43 rd Respondent, INEC is a public body established under section 153 of the Constitution of the Federal Republic of Nigeria 1999 as amended and saddled with the constitutional and statutory roles of registering and monitoring the organization and operation of political parties, as well organizing, undertaking and supervising elections to certain offices in Nigeria. Apart from this, the principal legislation that governs the activities of the 43 rd Respondent is the Electoral Act, 2022. Therefore the answer to the question whether the 43 rd Respondent can be so compelled by orders of mandamus granted against it by the learned judge of the lower will depends on the extent or limit of the powers conferred on the 43 rd Respondent as discoverable from the provisions of the enabling law, in this case the Electoral Act 2022…
Section 50 (2), Electoral Act, 2022,
Subject to section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission.
Section 60 (5) Electoral Act,2022, The presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission. Section 27(2) Electoral Act, 2022,
The Officers appointed under subsection (1) shall perform such functions and discharge such duties as may be specified by the Commission, in accordance with the provisions of this Act, and shall not be subject to the direction or control of any person or authority other than the Commission in the performance of their functions and discharge of their duties. Section 148 of the Electoral Act, 2022.
The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration.
From the provisions I set out above, no one is left in doubt that the 43 rd Respondent has very wide discretionary powers to determine how it carries out its assignment including the manner it transmits or transfers the results of election from polling units to the collation system as can be seen from the underlined part of sections 50(2) and 60(5) of the Act reproduced above. – Per A. S. Umar, JCA
As I had demonstrated earlier in this judgment, the Electoral Act gives the 43rd Respondent discretion on how it carries out its assignment including how it transmits or transfers result of election from poling units. With due respect to the learned judge, an order of mandamus cannot be granted to fetter a discretion. PER MUHAMMAD, J.C.A in CBN V. SYSTEM APPLICATION PRODUCTS (NIG) LTD (2004) LPELR-5432(CA) (PP. 23-24 PARAS. D) espoused the law when he said thus:
“There are also circumstances where order of mandamus cannot be granted. These circumstances are –
(i) Where there is a discretion to act. See: Miss Akintemi & Ors. v. Prof Onwumechili & Ors. (1985) 1 NWLR (Pt.1) 68, (1985) 1 SC 132 at page 173.
(ii) Where the order asks for something which is impossible of performance.
(iii) Where the doing of the act ordered would involve a contravention of the law. See: The Republic v. Registrar of Trade Marks (1967) NMLR 324.
(iv)Where there is an alternative specific remedy at law which is not less convenient beneficial and effective. See: R v. Registrar of Joint Stock Companies (1888) 21 QBD 131; See: Prof Onwumechill’s case (supra).
(v) Where there has been undue delay by the applicant before bringing his application. See: Broughton v. Commissioner of Stamp Duties (1889) AC 25 Volume II, page 84 of Halbury’s Laws of England provides as follows-
“Mandamus is an order of a most extensive remedial nature and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior Tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. Where a statute, which imposes a duty, leaves discretion as to the mode of performing duty in the hands of the party, on whom the obligation is laid, mandamus cannot command the duty in question to be carried out in a specific way.” Underlining is mine for emphasis.
Now it may be argued that what the learned judge did was to compel the 43rdRespondent to enforce and comply with its own regulation and guidelines but I will say in response that, that still negates the intendment of the Electoral Act because the Act gives the 43rd Respondent the power to determine the manner of transmitting or transferring the result to make the process flexible. The regulation and guidelines are made, as can be seen from section 148 of the Act reproduced above, subject to the provision of the Act and to give effect to the provision of the Act. It is my considered view that the power to make a regulation or guideline necessarily entails the power to amend or vary it. The implication of the orders of mandamus granted by the learned judge to the effect that the 43rd Respondent should comply with and enforce the provisions of Clauses 37 and 38 of its Regulation and Guidelines during the conduct of the Governorship and House of Assembly elections in Lagos State on 11th March, 2023 or any other date fixed for the election was to bind the 43rd Respondent with those clauses of the Regulation and Guidelines. In other words, the 43rd Respondent is stuck with them; it cannot amend or vary them even if the 43rd Respondent deems it necessary or the exigencies warrant such amendment or variation. The remark of PER ONU, J.S.C in GOVERNOR OF OYO STATE & ORS V. FOLAYAN (1995) LPELR-3179(SC) (PP. 59 PARAS. C), is apposite in this context, His Lordship state thus:
requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. Where a statute, which imposes a duty, leaves discretion as to the mode of performing duty in the hands of the party, on whom the obligation is laid, mandamus cannot command the duty in question to be carried out in a specific way.” Underlining is mine for emphasis.
Now it may be argued that what the learned judge did was to compel the 43rdRespondent to enforce and comply with its own regulation and guidelines but I will say in response that, that still negates the intendment of the Electoral Act because the Act gives the 43rd Respondent the power to determine the manner of transmitting or transferring the result to make the process flexible. The regulation and guidelines are made, as can be seen from section 148 of the Act reproduced above, subject to the provision of the Act and to give effect to the provision of the Act. It is my considered view that the power to make a regulation or guideline necessarily entails the power to amend or vary it. The implication of the orders of mandamus granted by the learned judge to the effect that the 43rd Respondent should comply with and enforce the provisions of Clauses 37 and 38 of its Regulation and Guidelines during the conduct of the Governorship and House of Assembly elections in Lagos State on 11th March, 2023 or any other date fixed for the election was to bind the 43rd Respondent with those clauses of the Regulation and Guidelines. In other words, the 43rd Respondent is stuck with them; it cannot amend or vary them even if the 43rd Respondent deems it necessary or the exigencies warrant such amendment or variation. The remark of PER ONU, J.S.C in GOVERNOR OF OYO STATE & ORS V. FOLAYAN (1995) LPELR-3179(SC) (PP. 59 PARAS. C), is apposite in this context, His Lordship state thus:
“A subsidiary legislation derives its validity and authority from a substantive law, in this case, Exhibit 7 deriving its authority from the Chiefs Law of Oyo State as it does, has not the capacity to extend such authority, See Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147. Nor has it ever been the case for the provisions of an ordinary statute to render nugatory the relevant provisions of the Constitution. See Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at 621: (1994) 19 LRCN 35. Thus, Exhibit 7 cannot override sections 158(4)(a) and 161(3) of the 1963 Constitution, the Supreme Law of the land then applicable, which ousted the jurisdiction of the courts from entertaining chieftaincy matters.”
Similarly, PER BOLAJI-YUSUFF, J.C.A in OKWURU V. OGBEE & ORS (2015) LPELR-40682(CA) (PP. 25-29 PARAS. B)
“The provisions of the Electoral Act being a substantive law shall override any rule of Court which is contrary to its provision. The subsidiary legislation must conform with the principal law. See NNPC VS. FAMFA OIL LTD. (2012) LPELR – 7812 (SC), The proviso to Order 3 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009 cannot override or affect or whittle down the absolute and mandatory provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which stipulates that an election petition shall be filed within 21 days after the date of the declaration of result of the elections and Paragraphs 4 (1) and (5) and 14 (1) and (2) of First Schedule to the Electoral Act which stipulate the content of a petition. See The GOV. OF OYO STATE & ORS vs OBA OLOLADE FOLAYAN (1995) 8 NWLR (PT. 413) PAGE 292 BARCLAYS BANK OF NIG. LTD VS ASHIRU & 2 ORS (1978) 6 -7 SC (Reprint) 70 or (1978) LPELR – 75 2 (SC), UTA FRENCH AIRLINES VS WILLIAMS (2000) 14 NWLR (PT. 687) PAGES 277. It is therefore clear that in law, the provisions of Order 3 Rule 3 (1) of the Federal High Court (Civil Procedure) Rules, 2009 cannot provide a platform for filing and using witness statement on oath not filed within the time limit set for presentation of petition and which time cannot be extended for any reason under any guise.
Not even the allegation of the 1st -42nd Respondents that the 43rd Respondent breached the provisions of Clauses 37 and 38 of its Regulation and Guidelines during the conduct of the Presidential and National Assembly Elections held earlier on the 27th February, 2023 should justify the order of mandamus granted against it by the learned trial judge because that is an issue for the election tribunal and not a subject of an order of mandamus before the Federal High Court. I am reinforced on this position by the Apex Court in ANPP VS. RETURNING OFFICER ABIA STATE & ORS (2007) 11 NWLR (PT. 1045) 431 @ 432 when PER DAHIR MUSDAHPER JSC said:
“Election matters are in a class of their own and are entirely statutory. The writs of certiorari and mandamus being common law’ remedies cannot be invoked in a purely election matter and where they are invoked, they cannot change the character of the matter, as an election matter clearly belongs to the election tribunal and clearly outside the jurisdiction of the High Courts. In the instant case, the Federal High Court lacked the jurisdiction to entertain the appellant’s suit and the Court of Appeal was right in so holding. (Pp. 434-435, paras. C-D; H-A)” – Per A. S. Umar, JCA
The concept of abuse of court process is imprecise and situations that give rise to abuse of court process are of infinite varieties and conditions but its common feature is the improper use of the judicial process by a party in litigation to interfere with due administration of justice which is exemplified in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issue; instituting different actions between the same parties simultaneously in different courts even though on different grounds; where two similar processes are used in respect of the exercise of the same right; where an adjournment is sought to file an application for leave to raise an issue of fact already decided by a lower court; and where there is no iota of law supporting a court process or where the process is premised on frivolity or recklessness. Any of the above situation amounts to abuse of court process. The most ubiquitous form of abuse of court process is the institution of multiple and divergent suits/proceedings over the same subject matter. See: SARAKI V.KOTOYE (1992) 9 NWLR (Pt. 264) 156 @ 188, UNITY BANK PLC VS. OLATUNJI (2013) 15 NWLR (Pt. 1378) 156; MUHAMMED V. HUSSEINI (1998) 14 NWLR (Pt. 584) 108 @ 159;NWAIGWE & ORS V. ANYANWU (2016) LPELR-40613(CA); EQUITABLE ASSOCIATION (INDUSTRIAL & COMMERCIAL) LTD V. SUNSHINE OIL & CHEMICAL DEVELOPMENT (COM) LTD (2018) LPELR-44272(CA); AGWASIM & ANOR V. OJICHIE & ANOR (2004) LPELR-256(SC). – Per A. S. Umar, JCA
There is no gainsaying the fact that the issue of service is very fundamental to the jurisdiction and competence of the Court. If there is no proper service, it follows that the action is improperly constituted and the Court is without jurisdiction to entertain the appeal; Skenconsult & Anor. V. Ukey (1981) 2 SC 6, Nigerian Navy & Ors v. Garrick (2005) LPELR-7555 (CA). However, where there is a unchallenged proof of service on the other party, in this case, the 1st, 2nd – 42nd and 43rd Respondents, by the Bailiff of this Court, it is conclusive proof that the 1st, 2nd – 42nd and 43rd Respondents were indeed served with the Court processes and therefore, were aware of the pendency of this appeal; Ndayako & Ors. V. Dantaro & Ors (2004) LPELR-1968 (SC); International Bank for West Africa (now Afribank Nigeria Plc) v. Sasegbon (2007) LPELR-8246 (CA); Egbagbe v. Ishaku & Anor (2006) LPELR – 11656 (CA). – Per O. A. Otisi, JCA
NILL
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