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James v. Independent National Electoral Commission

OCHOLI ENOJO JAMES, SAN

V

  1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
  2. PEOPLES’ DEMOCRATIC PARTY (PDP)
  3. CAPTAIN IDRIS ICHALLA WADA
  4. PRINCE ABUBAKAR AUDU
  5. ELDER UBOLO OKPANACHI

SUPREME COURT OF NIGERIA

MAHMUD MOHAMMED CJN ( Presided )

JOHN AFOLABI FABIYI JSC

MUSA DATTIJO MUHAMMAD JSC

CLARA BATA OGUNBIYI JSC

K. M. OLATOKUNBO KEKERE-EKUN JSC ( Read the Lead Judgment )

JOHN INYANG OKORO JSC

CENTUS CHIMA NWEZE JSC

SC. 478/2013

FRIDAY, 13 MARCH 2015

APPEAL - Issue for determination - Need to formulate from a valid ground of appeal

COURT - Competence of - Determinants

COURT - Federal High Court - Action challenging declaration of a candidate as winner of election on grounds of non-qualification to contest - Whether constitutes a pre-election matter automatically vesting in to determine - Constitution of the Federal Republic of Nigeria, 1999, sections 251(1)(q) and (r), 285(2) and Electoral

Act, 2010, sections 133(1) and 138(1) considered

COURT - Federal High Court - Any action in which Federal Government Agency is a party - Whether has blanket jurisdiction on - Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(q)  and (r) considered

COURT - Statutory basis of - Jurisdiction of - Conferment of by creating statutes - Variation of - Proper body seised with power to

ELECTION PETITION - Candidate - Declaration of as winner of election - Action which challenges on grounds of non-qualification to contest - Whether constitutes a pre-election matter automatically vesting jurisdiction in Federal High Court to determine Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(q)  and (r), 285(2) and Electoral Act, 2010, sections  133(1) and 138(1) considered

INTERPRETATION OF STATUTES - Statute - Interpretation of - Duty on court to discover intention of lawmaker in - Proper approach thereto

JUDGMENT AND ORDERS - Perverse decision - What constitutes

JURISDICTION - Court lacking jurisdiction over a matter - Where determines any issue arising therefrom - Impropriety of

JURISDICTION - Court’s jurisdiction - Determinant of - Determination of - Proper approach of court to - Averments in supporting affidavit in action commenced by originating summons - Relevance of thereto

JURISDICTION - Federal High Court - Any action in which Federal Government Agency is a party - Whether has blanket jurisdiction on - Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(q)  and (r) considered

JURISDICTION - Issue of - Propriety of determining firstly - Rationale for - Lack of - Effect - When may be raised

STATUTE - Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(q) and (r) - Federal High Court - Any action in which Federal Government Agency is a party - Whether has blanket jurisdiction on

STATUTE - Constitution of the Federal Republic of Nigeria, 1999, sections 251(1)(q) and (r), 285(2), Electoral Act, 2010, sections 133(1)  and 138(1) - Federal High Court - Action challenging declaration of a candidate as winner of election on grounds of non-qualification to contest - Whether constitutes of a pre-election matter automatically vesting in to determine

Issues:

  1. Whether the lower court was right when it failed to consider the issue of whether the election of 26 April 2011 was a postponed election before it resolved the issue of jurisdiction.
  2. Whether the lower court was right in holding that it was the governorship election petition tribunal that has the jurisdiction to entertain the appellant’s claim.

Facts:

The gubernatorial election for Kogi State for the 2011 elections was fixed by INEC for April 2011. The former Governor of Kogi State, Ibrahim Idris then filed an action in the Federal High Court of Abuja claiming that his tenure would subsist till April 2012. Adamawa, Bayelsa, Cross River and Sokoto States Governors also filed actions on similar grounds and the suits were consolidated by order of court. The trial court granted the reliefs sought by the Kogi State Governor consequent upon which INEC cancelled the scheduled election and fixed December 2011 for the gubernatorial elections in Kogi State. An appeal against the trial court’s decision to Court of Appeal and a further appeal filed to the Supreme Court was pending while the election rescheduled for December 2012 was conducted. The appellant and the 3rd respondent were among the candidates that contested the election under the platforms of Congress for Progressive Change (CPC) and Peoples’ Democratic Party (PDP) respectively. The 3rd respondent was declared and returned as winner of the election. Other candidates who were not satisfied with the election filed petitions which were all determined in 3rd respondent’s favour. Subsequent appeals thereon to the Court of Appeal and the Supreme Court, were also delivered in his favour.

The apex court subsequently delivered judgment in the consolidated appeals on the tenures of Governors holding that the term of office of Governor Idris lapsed in May 2011 and he was ordered to vacate office immediately. The 3rd respondent was then sworn-in as the Governor, having won the December 2011 elections. The appellant thereafter filed an originating summons in the Federal High Court, Abuja, contending that the April 2011 gubernatorial election was not cancelled but merely postponed until December 2011 and that the 3rd respondent, among others, who was not in the race for the April 2011 election was not qualified to contest the December election. He prayed that the 3rd respondent’s declaration as the winner of the election be nullified and that he be declared the winner of the election. The 1st - 3rd respondents filed preliminary objections challenging jurisdiction of the trial court which were upheld and the case was struck out. An appeal thereon filed by the appellant was dismissed. Dissatisfied still, the appellant appealed to the Supreme Court contending that the lower court erred by failing to consider whether April 2011  election was a postponed election before resolving issue of jurisdiction and for holding that it was the Governorship Election Petition Tribunal that has the jurisdiction to entertain appellant’s claim.

In determining the appeal, the Supreme Court considered the following statutes:

Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(q)(r)

251(1)  Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:

  1. subject to the provision of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
  2. any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

Electoral Act, 2010, sections 133(1) and 138(1)

133(1)  No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.

138(1)  An election may be questioned on any of the following grounds, that is to say:

  1. that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
  2. that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
  3. that the respondent was not duly elected by majority of lawful votes cast at the election; or
  4. that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.