CORAM
BAIRAMIAN, JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JSC (Lead Judgment), JUSTICE SUPREME COURT
PARTIES
LABOUR PARTY APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant in this appeal had approached the Defendant/Respondent stating its desire to contest in the bye-elections to be held by the Defendant/Respondent into the office of the Governor of Adamawa State. The Defendant/Respondent refused to acknowledge the request of the Plaintiff/Appellant and include it in the bye-elections on the ground that the bye-elections would only be conducted with the list of candidates used for the nullified elections. Consequent upon the refusal, the Plaintiff/Appellant filed an action by way of Originating Summons at the Federal High Court and submitted some questions for determination by the court which was subsequently referred to the Court of Appeal for determination. The Court of Appeal after due consideration of the question on the right of the Plaintiff/Appellant to partake in the bye-elections to be held by the Defendant/Respondent, held that “where there is nullification of a general election and a re-run is ordered, only candidates who were nominated to contest in the previous election can contest in the re-run election. The Plaintiff/Appellant, who did not agree with the decision of the Court of Appeal, has thereby appealed to the Supreme Court.
HELD
Appeal dismissed
ISSUES
Whether the learned Justices of the Court of Appeal were right in holding that the fresh election ordered to be held upon the nullification of the April 14, 2007 Governorship election in Adamawa State by the decision of the Court of Appeal in CA/J/EP/GOV/419/2007: Independent National Electoral Commission & Ors. vs. Action Congress & Ors is not a bye-election to which the Appellant is entitled to participate by fielding a candidate of her choice pursuant to section 32(7) of the Electoral Act, 2006, but a “re-run “ election.Whether the learned Justices of the Court of Appeal were right in holding that whenever there is a nullification of a general election and afresh election is ordered to be held, only the candidates who contested in the nullified election can contest the fresh election.Whether the Learned Justices of the Court of Appeal were right in holding that the fresh election ordered to be held upon the nullification of the April 14, 2007 Governorship election in Adamawa State by the decision of the Court of Appeal in CA/J/EP/GOV/419/2007: Independent National Electoral Commission and others vs. Action Congress and others, is a “re-run “ general election in which only the candidates who were validly nominated for the nullified election could contest.
RATIONES DECIDENDI
JURISDICTION – FUNDAMENTAL NATURE OF JURISDICTION
“The issue of jurisdiction is said to be so fundamental, that it can/could be raised at any stage/time by any party or even by the court. See the cases of Adesanya v. The President (1981) 1 NCLR 386: Federal Republic of Nigeria v. Lord Chief Ifegwu (2003) 15 NWLR (Pt.842) 113: (2003) 5 SCNJ. 219; (2003) 112 LRCN 2233 and Chief Ehigbe v. Chief Omokhafe & 2 Ors. v. The Military Administrator Edo State of Nigeria & 2 ors. (2004) 12 SCNJ. 106; (2004) 11-12 S.C. 60; (2004) 20 NSCR 355, (2004) 9-12 SCM, (Pt.2) 206.” PER I. F.OGBUAGU, J.S.C.
“NULLITY” – DEFINITION OF “NULLITY”
A “nullity” is defined in the above case, as a void act, an act which has no legal consequence. It is an act which is not only bad, but incurably bad. It is as if nothing happened. See the case of Okafor & Ors. v. The Attorney-General & Commissioner for Justice, Anambra State & ors. (No.l) (1991) 6 NWLR (Pt. 200) 659: (1991) 7 SCNJ.345”. PER I. F.OGBUAGU, J.S.C
DETERMINATION OF QUESTIONS REFERRED TO THE COURT OF APPEAL – DUTY OF THE COURT THAT MADE THE REFERENCE TO DECIDE ON THE SUBSTANTIALITY OF THE QUESTION
“The Court to which the question goes, is limited to deciding upon the question referred to it. Thereafter, it must send its decision to the court in which the question arose and that court is bound to dispose of the case out of which that decision arose. See the case of Togun v. Oputa (No. 1) supra. Thus, it is the court making the reference that must decide on the substantiality of the question and not the Court of Appeal or the Supreme Court. See the cases of African Newspapers of Nigeria Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 133; The Federal Republic of Nigeria & Anor. v. Lord Chief Ifegwu (2003) 15 NWLR (pt.842) 113 (a), 191 ; (2003) 5 SCNJ. 217.” PER I. F. OGBUAGU, J.S.C.
COURT ORDERS – A COURT ORDER MUST BE OBEYED.
“It is now firmly settled that a court Order, must be obeyed even if such Order, is perverse, until such a time that the Order is set aside by a competent court. See the case of Oba Aladegbami v. Oba Fasanmade (1988) 3 NWLR (Pt.81) 131; (1988)6SCNJ. 103.” PER I. F.OGBUAGU, J.S.C.
“RE-RUN” OF AN ELECTION – MEANING OF A “RE-RUN” OF AN ELECTION.
“A “re-run” is the same thing as a “fresh election” or “re-start”. PER I. F.OGBUAGU, J.S.C.
DETERMINATION OF QUESTIONS REFERRED TO THE COURT OF APPEAL – WHERE A QUESTION IS REFERRED TO THE COURT OF APPEAL, THE COURT OF APPEAL HAS NO DISCRETION IN RESPECT OF THE REFERRENCE BUT IS UNDER COMPULSION TO DECIDE THE QUESTION SO REFERRED TO IT- SECTION
“Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999, is mandatory or connotes, a command that when any question is or questions are referred to the Court of Appeal, that Court, shall give its decision upon the question or questions. It has no discretion in respect of the said reference. See also the cases of Ona & Anor. v. Alhaji Atanda (2005) 5 NWLR (Pt.656) 244 at 275-276 C.A. and Brigadier-General Tosun (Rtd.) v. Hon. Mr. Justice Oyuta (Rtd.) & 2 Ors. (No.l) (2001) 16 NWLR (Pt. 740) 577, at 592 C.A.” PER I. F.OGBUAGU, J.S.C.
NULLIFICATION OF AN ELECTION – ONCE AN ELECTION IS HELD TO BE VOID, IT IS VOID AB INITIO
“Once an election is declared null and void, the law regards whatever was purportedly done in the name or guise of an election, as not having taken place at all. In the eyes of the law, the election is void ab initio, and a fresh election is conducted as if the earlier one did not take place at all.” PER I. F.OGBUAGU, J.S.C.
ORDER OF A RE-RUN OF AN ELECTION – AN ORDER OF RE-RUN OF AN ELECTION HAS THE EFFECT THAT THE SAID ELECTION SHOULD START ALL OVER AGAIN.
“An order of the court commanding a re-run connotes nothing other than that the candidate so unlawfully excluded together with those who took part in the election that was voided should start again -they should have a re-run of the election and that is the general election.” PER P.O. ADEREMI, J.S.C
EFFECT OF A THING BEING HELD TO BE NULL AND VOID – THE EFFECT OF A PRONOUNCEMENT OF THE COURT THAT A THING IS NULL AND VOID IS THAT THE THING NEVER OCCURRED.
“When a court makes a pronouncement that a thing that took place is null and void, the simple and only reasonable interpretation of such a pronouncement is that the thing never occurred or took place.” PER P.O. ADEREMI, J.S.C
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999Court of Appeal Rules 2007Electoral Act 2006