Ocholi Enojo James, San Vs .independent National Electoral Commission (Inec) (2015)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 10th July 2013 dismissing the appellant’s appeal and affirming the decision of the Federal High Court, Lokoja Division delivered on 24th September 2012.

The facts that gave rise to this appeal are as follows: In pursuit of its powers under the Electoral Act, the 1st respondent fixed April 26th 2011 for Governorship elections to take place in most states of the Federation. It fixed 28th February 2011 as the last date for the submission of nomination forms by candidates. The former Governor of Kogi State, Ibrahim Idris instituted an action before the Federal High Court against the 1st respondent claiming that gubernatorial election could not hold in Kogi State in April 2011, as his tenure would subsist until April 2012. The Governors of Adamawa, Bayelsa, Cross River and Sokoto States also instituted actions on similar grounds. The suits were consolidated.

In its judgment delivered on 23/2/2011 in consolidated suits nos: FHC/AB/CS/651/10, FHC/AB/CS/650/2010, FHC/AB/CS/648/2010, FHC/AB/CS/646/2010 and FHC/AB/CS/668/2010, the Federal High Court restrained the 1st respondent “from conducting any regular election for the office of Governor of Kogi State until the expiration of a period of four (4) years with effect from April 5, 2008 and/or not earlier than sixty (60) days to the expiration of the plaintiff’s four years tenure on April 5, 2012.” As a result, the 1st respondent cancelled the election scheduled for 26th April 2011 in Kogi State and fixed 3rd December 2011 as the new date for elections in that state. Accordingly it released a new timetable of events for the conduct of primaries, submission of nomination forms, campaigns, etc.

Meanwhile, dissatisfied with the order of the Federal High Court, the 1st respondent appealed to the Court of Appeal, Abuja Division. In its judgment in the consolidated appeals delivered on 15/4/2011, the lower court affirmed the decision of the trial court. A further appeal to the Supreme Court was pending at the time the election of 3rd December 2011 was conducted.

The appellant and his political party (the now defunct Congress for Progressive Change-CPC) accepted the fresh dates and new timetable for the election as did all other political parties, participated in new primaries and submitted their names to the 1st respondent, who published the list of candidates for the governorship election accordingly. The result of the election was declared on the 4th of December 2011. The appellant lost to the 3rd respondent who, by a majority of votes cast, emerged as the Governor elect of Kogi State. Those candidates who were dissatisfied with the outcome of the election filed their respective petitions before the Election Tribunal. On 17th May 2012, the Tribunal validated the outcome of the election of 3rd December as properly conducted. The Court of Appeal affirmed the decision of the Election Tribunal and upon final appeal, this court, on the 10th September 2012, affirmed the decisions of the two lower courts.

On the 27th January 2012 this court delivered judgment in the consolidated appeals on the tenure of office of the governors of Kogi, Adamawa, Bayelsa, Cross River and Sokoto States reported in: Marwa Vs Nyako & Ors (2012) 6 NWLR (Pt.1296) 199 – 387, wherein it held, inter alia, that the term of office of Governor Ibrahim Idris of Kogi State had indeed lapsed in May 2011. He was ordered to vacate office immediately. The 3rd respondent was accordingly sworn in as Governor of Kogi State on 27th January 2012, having won the election conducted on 3/12/2011.

On 7th March 2012, the appellant herein filed an originating summons (and later an amended originating summons) before the trial court wherein he contended that the April 2011 gubernatorial election was not cancelled but merely postponed until December 3rd 2011 and that the 3rd respondent (amongst others) who was not in the race for the April 2011 election was not qualified for the December 3rd election. He prayed that the victory of the 3rd respondent at the December 3rd 2011 election be nullified and that he be declared the winner of the said election.

The 1st, 2nd and 3rd respondents filed preliminary objections challenging the suit on the ground that the trial court lacked jurisdiction to entertain it. The preliminary objections were upheld and the appellant’s case struck out. On appeal to the lower court, the appeal was dismissed and the decision of the trial court was affirmed. The appellant, being dissatisfied with this decision has further appealed to this court on seven grounds of appeal by a notice of appeal filed on 7/8/2013. Pursuant to an order of this court, the appellant filed three additional grounds of appeal on 14/9/2013.

In compliance with the rules of this court, the parties filed and exchanged their respective briefs of argument. In support of the appeal the appellant relies on the following processes:

i. Appellant’s amended brief of argument deemed filed on 9/10/2014.

ii. Appellant’s Reply brief to 1st Respondent’s brief filed on 10/12/2013.

iii. Appellant’s Reply brief to 2nd Respondent’s brief filed on 10/12/2013.

iv. Appellant’s Reply brief to 3rd Respondent’s brief deemed filed on 3/2/2015.