Legalpedia Citation: (2023-12) Legalpedia 37919 (CA)

In the Court of Appeal

Holden At Abuja

Sat Dec 23, 2023

Suit Number: CA/YL/EP/TR/HR/21/2023

CORAM

Mohammed Mustapha , Justice court of Appeal

Mohammed Danjuma, Justice court of Appeal

Lateef Adebayo Ganiyu, Justice court of Appeal

PARTIES

1. RIMANDE KWEWUM SHAWULU
2. NEW NIGERIA PEOPLES PARTY (NNPP)

APPELLANTS

1. MARK USENI BAKO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Appellant was the candidate sponsored by the 2nd Appellant to contest election into the Takum DonganUssa Federal Constituency seat of the House of Representatives of the Federal Republic of Nigeria in an election conducted by the 3rd Respondent on 25th February, 2023 and supplementary election conducted on 15th April, 2023 by the 3rd Respondent who is the body statutorily saddled with the responsibility to conduct of the election(s) in question and/or General Election in Nigeria.

The 1st Respondent was declared as the winner of the supplementary election under consideration. Aggrieved by the outcome of the election, the Appellants presented their petition before the trial Tribunal claiming that the 1st Respondent was not duly elected by majority of lawful votes cast at the election and that the Election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.

The trial Tribunal dismissed the Appellants’ petition. They appellants were aggrieved by the outcome hence the instant Appeal.

 

HELD

Appeal dismissed

ISSUES

Preliminary objections

 

RATIONES DECIDENDI

COURTS – CONDUCT OF COURTS WHEN THERE IS A PRELIMINARY OBJECTION IN A MATTER

in consonance with the long established principle of law, which is to the effect that once preliminary objection is raised against an Appeal, prudency demands that such preliminary objection(s) must be first heard and determined one way or the other before delving into the substantive appeal. SeeKOKO V. KOKO & ORS. (2023) (SC) where it was held that

As indicated above, the 1st Respondent filed a Notice of preliminary objection challenging the jurisdiction of the Court to entertain the appeal. It is settled that once a preliminary objection is raised by the Respondent in an appeal, the objection must be considered first before taking further steps to hear the appeal. It is prudent to do so, as the purpose of a preliminary objection is to terminate an appeal at its infancy. It will amount to nothing but a time wasting exercise to consider the merit of the appeal, only to discover that the preliminary objection had merit and that the Court lacked jurisdiction to entertain the appeal. See ABDULLAHI V. LOKO & ORS. (2022) LPELR-57578 (SC), BACKBONE CONNECTIVITY NETWORK (NIG.) LTD. V. BACKBONE TECH NETWORK INC. & ORS. (2021) LPELR-56884 (SC) MAINASARA V. F.B.N. (2021) LPELR-56612 (SC). Per JAURO, JSC (Pp. 11-12, Paras. D-A). – Per L. A. Ganiyu, JCA

ELECTION PETITION – THE GROUNDS THAT CONSTITUTE PROPER GROUNDS FOR AN ELECTION PETITION – HOW JURISDICTION OF A COURT IS DETERMINED IN A MATTER

Now, in order to determine whether there is justification for the Appellants’ contention on the main issue or focus of this Appeal as reproduced above, it is imperative to ascertain whether the trial Tribunal can assume jurisdiction over matter touching on the first main ground of the Appellants’ Appeal before this Court. In doing so, we must first of all ascertain whether that ground falls under the grounds upon which an election petition can be presented before the trial Tribunal. In doing this, resort must be had to the provisions of Section 134(1) of the Electoral Act, 2022. It reads thus;

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

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

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

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

A cursory look at the above-quoted provision of Section 134(1) of the Electoral Act, 2022 will unequivocally reveal that cause or matter relating to ascertainment of which of the elections conducted by the 3rd Respondent in relation to a particular election in a constituency does not form part of the grounds upon which an election may be questioned.

That being the case, as rightly submitted by both learned counsel for the 1st Respondent and 2nd Respondent, neither the trial Tribunal nor this Court possesses the vires to entertain such a cause or matter which has been made a subject of dispute in the instant Appeal. See APGA. V. OHAKIM & ORS (2008) LPELR – 375 (CA) where it was held that

Clearly, those prayers were essentially directed at the inconclusive election of 14th April, 2007. The petition was fought on the basis of those prayers.

Section 285(2) of the  Constitution of the Federal Republic of Nigeria, 1999 states as follows- There shall be established in each state of the Federation one or more election tribunal to be known as the Governorship and Legislative Houses Election Tribunal which shall to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petition as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house. (underlining provided for emphasis). By the provision of Section 285(2) which I have set out above, 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 are held. See Jang v. Dariye (2003) 15 NWLR (Pt.843) 436 at 460 paragraph EF. 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 (PL841) 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. In the instant case, the Appellant confirmed in its prayers 8, 9, 10, 11 and 12 which have been reproduced elsewhere in this judgment that it never recognized the election of 28th April, 2007.

Indeed, in its last prayer, which is prayer 12, the Appellant specifically asked the Tribunal to set aside the purported Governorship election held in Imo State on 28th April, 2007. The questions that were submitted for adjudication before the Tribunal do not concern whether any person has been validly elected to office of Governor or Deputy Governor. The Tribunal therefore rightly declined jurisdiction to entertain the petition. The question of whether the postponement of the election was within the competence of the Independent National Electoral Commission (INEC) is not a matter for the Tribunal. (Underlining mine)

It follows therefore that, the trial Tribunal having lacked the jurisdiction to entertain the cause or matter which is the subject matter of dispute in the instant Appeal on account that same does not fall on the cause or matter that it has jurisdiction to entertain, this Court as well do not have jurisdiction to entertain this Appeal. See NDUKWE V. AYU & ORS (2022) (SC) where it was held that

The law is that it is the reliefs claims of the plaintiff that confers jurisdiction on the Court Per JAURO, JSC (p. 23, Paras. A-B). – Per L. A. Ganiyu, JCA

PETITION – TIME LIMIT FOR DETERMINING ELECTION PETITIONS

…grievances of the Appellants in this regard having been connected with the conduct of election pursuant to the provision of the Electoral Act, 2022 and 1999 Constitution of the Federal Republic of Nigeria, time frame within which cause of action relating to conduct of election must be heard and determined is as provide for under Section 285(6) of the 1999 Constitution quoted hereunder. It reads thus

An election Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition.”

Thus, issue bordering on inconclusiveness or cancellation of the 2522023 election into the TakumDongaUssa Federal Constituency seat of the House of Representatives of the Federal Republic of Nigeria, assuming without deciding that it is a justiciable cause before the trial Tribunal or this Court, is one that must be heard and determined within 180 days from 2522023 which presupposes that, time within which it ought to have been conclusively dealt with, lapsed sometimes onor about 2482023. Therefore, the said complain or failure to declare the election of 2522023 inconclusive or cancellation of same has become statute- barred which this Court lacks jurisdiction to entertain. See IBRAHIM V. LAWAL & ORS. (2015) LPELR – 24736 (SC) where it was held that

More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in Court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as Statutes of Limitation. It follows that where a Statute of Limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See Egbe v. Adefarasin & Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 891) 572, Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (PL. 174) 379, Per OKORO JSC (Pp. 35-36, paras. G-D) – Per L. A. Ganiyu, JCA

AFFIDAVIT – WHETHER IT IS NECESSARY TO FILE AN AFFIDAVIT FOR AN ISSUE BORDERING ON LIMITATION PERIOD WHICH TOUCHES ON A STATUTORY PROVISION

I am not unmindful of the submissions of the learned senior counsel to the Appellants’ that Learned counsel to the 1st respondent and 2nd respondent did not file affidavit to expatiate on fact establishing that 180 days within which the appellants cause of action can be pursued had elapsed and as such, they are precluded from canvassing argument that the appellants’ case is statute-barred.

With due respect to the learned silk of counsel to the Appellants, issue bordering on limitation period within which a cause or matter can be fought touches on statutory provision (Section 285 (6) in the instant Appeal) which the Court itself is enjoined by law to be acquainted with. Therefore, it is unnecessary to file affidavit before this Court, in order to establish the state of the law. – Per L. A. Ganiyu, JCA

SUPPLEMENTARY ELECTION – WHETHER A SUPPLEMENTARY ELECTION CAN BE CONDUCTED MORE THAN ONCE IN RESPECT OF THE SAME CONSTITUENCY – CONDUCT OF COURTS IN INTERPRETING STATUTES

It is to be placed on record that, as far as the election in question is concerned, the applicable law relating to conduct of supplementary election in respect of same is paragraph 75 of the 3rd Respondent’s Regulations and Guidelines for the conduct of Elections, 2022.

It reads thus

“Where the margin of lead between the two leading candidates is not in excess of the total number of collected PVCs of the Polling Unit(s) where the election was not held or was cancelled in line with Sections 24, 47 and 51 of the Electoral Act, the returning officer shall decline to make a return until polls have been conducted in the affected Polling Units and the results incorporated into a new form ECD (11) and subsequently recorded into form EC8E (11) for declaration and Return

It is pertinent to point out that in order to have a clear understanding of the purport of the provision of Paragraph 75 of the INEC regulations and Guidelines, 2022 its marginal note must be considered which states thus

Supplementary Election for Federal Constituency Election.

In essence, the INEC Regulations and Guidelines do not anticipate a situation where supplementary election will be conducted in respect of the same election in relation to the same constituency more than once because the provision of the Regulation and Guideline in question is clear and unambiguous and ad same should be interpreted literally. See KASSIM V. ADESEMOWO & ORS. (2021) LPELR – 55333 (SC) where it was held that

The law is trite that where the words used in a statute are clear and unambiguous, the Courts are enjoined to interpret the words in their ordinary and natural meanings. And it is basic that one of the vital canons of interpretation of statutes is that a Court of record should be mindful to make broad interpretation or what is sometimes referred to as giving same a liberal approach. A Court should give a holistic interpretation to a statute as required by law. It should be a purposeful interpretation. See NURTW & Anor v RTEAN & Ors (2012) 10 NWLR (pt. 1307) 170, Elabanjo & Anor vs Dawodu (2006) 15 NWLR (pt. 1001) 76, Attorney General of Ogun State & Ors v Attorney General of the Federation (2002) LPELR-621 (SC), Board of Customs v Barau (1982) 10 SC page 48, (1982) LPELR-786 (SC), Adewumi & Anor v Attorney General of Ekiti State(2002) 2 NWLR (pt. 751) 474. Let me state clearly that one other cardinal rule of interpretation is to avoid judicial legislation and also avoid making nonsense of the statute in order not to defeat the manifest intention of the legislation. See Olowu v Abolore & Anor (1993) 5 NWLR (pt. 293) 255, Osho v Philips (1972) 4 SC 259. per OKORO, JSC (pp. 20-21, para. C-C).

That being the case, it should be clearly understood that supplementary election is a correctional or remedial election which ordinarily is sparingly conducted and not a general or routine election that can be conducted periodically. – Per L. A. Ganiyu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Election Judicial Proceedings Practice Direction, 2023
4. Court of Appeal Rules, 2021
5. INEC’s Regulations and Guidelines for the conduct of Elections, 2022

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