All Progressives Congress & Ors V. In Re: Congress For Progressive Change & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

I consider it pertinent to reproduce from the record of appeal, background facts giving rise to the appeal on hand from which stemmed the application under consideration.

The Independent National Electoral Commission (INEC), 1st respondent, herein, commenced preparations in April, 2011, towards holding gubernatorial elections in Kogi State as well as in other affected states. The elections were scheduled to take place in such states on the 26th of April, 2011. Meanwhile, the former Governor of Kogi State, Alh. Ibrahim Idris, who was then the incumbent Governor of the State, instituted an action at the Federal High Court, Abuja (trial court), against the 1st respondent claiming inter alia, an injunction restraining the 1st respondent from conducting any gubernatorial election in Kogi State in April, 2011, until the expiration of his four year tenure on April, 2012.

In its judgment of 23/02/2011, the trial court held that the tenure of the then Kogi State Governor which commenced from 5th April, 2008, shall terminate on 5th April, 2012. Consequent upon that, the 1st respondent halted, cancelled and abandoned all preparations concerning the proposed gubernatorial election in Kogi State.

On an appeal to the Court of Appeal, Abuja Division, the decision of the trial court was affirmed.

There was a further appeal to this court by the 1st respondent which was later consolidated with other appeals on similar issues.

In the meantime, 1st respondent conducted fresh gubernatorial election for Kogi State on the 3rd of December, 2011 in which the 3rd respondent emerged winner of the election.

This court delivered its judgment on the consolidated appeals before it on the 27th of January, 2012 holding that the Terms of office of the then incumbent Governor of Kogi State, Ibrahim Idris, had indeed lapsed in May, 2011 and that he should vacate office immediately. This paved way for the swearing in of the 3rd respondent on 27th January 2012 on the basis of his victory at the December 3rd, 2011 poll.

On the 7th of March, 2012, the appellant in the appeal on hand and the 8th respondent commenced an action at the Federal High Court via an Originating Summons which was later amended. Each of the 1st, 2nd and 3rd respondents filed a Preliminary Objection challenging the jurisdiction of the Federal High Court to determine the 6th and 7th respondents’ suit as it was not a pre-election matter, and that the appellant lacked the locus standi to maintain the action. The Preliminary Objections were upheld and the 6th and 7th respondents’ amended Originating Summons was struck out. On appeal to the Court of Appeal, the appeal was dismissed by that court and it affirmed the decision of the Federal High Court that the latter lacked jurisdiction to entertain the appellants case. The present appeal, now before this court, stemmed from the Court of Appeal’s dismissal of the appellant’s appeal.

My lords, the true picture of the whole episode will remain incomplete, if I omit to capture the new facts that emerged later, and that is: at the time of filing of the suit by the appellant, an Election Tribunal had been set up for Kogi State to deal with all challenges relating to the December, 3rd, 2011, election, and pending before the Tribunal was an Election Petition filed against the 3rd respondent and others. At the end of trial, the Election Tribunal found and held that the gubernatorial election of December 3rd, 2011, in Kogi State, was properly conducted and that the 3rd respondent was validly elected as Governor of Kogi State. On 14th July, 2012, Court of Appeal affirmed the judgment of the Election Tribunal, holding that the 3rd respondent was duly elected as Governor of Kogi State. On further appeal to the Supreme Court, the court affirmed the judgment of the Court of Appeal.

I should now consider the application before this court. It is to be recalled, however, that the pending appeal is on the decision of the Court of Appeal which affirmed the trial court’s decision that it (the trial court) lacked jurisdiction to entertain the appellant’s case.

On the date scheduled for hearing the appeal (9/10/14), several applications including preliminary Objections were filed by the respective senior counsel and other counsel in the matter. Some of the applications were withdrawn and struck out: other harmless ones were granted right away.

Mr. Okutepa, SAN, sought to move his motion on Notice which he said was dated 2nd of October, 2014 and filed on the 3rd of the same month. He said the motion on Notice prays for an order substituting the appellant, Congress for Progressive Change (CPC) with the applicant, All Progressives Congress (APC) are for same substitution to appear wherever CPC appears.

Soon thereafter, Mr. Uche, SAN, for the 3rd respondent, stood up to say that he filed a Notice of Preliminary Objection and counter-affidavit. Mr. Ajana, for 2nd respondent, stated that he too filed a Notice of Preliminary Objection. None of the other counsel for the respondents filed any objection. This court granted permission to the objectors to proceed with their objections first. The trite law is that where there is an objection against consideration/continuation of a process that objection should be determined first. See: Ogoja v. Offoboche (1996) 8 NWLR (Pt.458) 48; Katto v. CBN (1991) 9 NWLR (Pt.214) 126; ANPP v R.O.A.S.S.D. (2005) 6 NWLR (Pt.920) 140.