All Nigeria Peoples Party (Anpp) & Ors V. Benue State Independent Electoral Commission & Ors (2005)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Benue High Court, delivered on 23/4/2004, sitting in its original jurisdiction, at Adikpo Judicial Division in Benue State, declining jurisdiction to entertain the suit of the plaintiffs against the defendants. The facts leading to this appeal, as disclosed are as follows:

The 1st plaintiff as a registered political party in Nigeria, sponsored the 2nd and 3rd plaintiffs as candidates for Chairman and Vice-Chairman for Election into Kwande Local Government Council of Benue State. The 1st plaintiff also sponsored councillorship candidates for all the Wards in Kwande Local Government Council of Benue State. The said election was conducted in Kwande Local Government Area. After conducting the elections in Kwande Local Government, results of the elections for the office of the Chairman, Vice-Chairman and Councilors were collated and the officials of the respondents on 28/4/2004:

(a) Completed the Certificate of Return;

(b) Declared the results of the poll; and

(c) Read the completed Certificate of Return aloud in the place of counting and gave copies of the result/Certificate of Return to the agents of the appellants, the Police, the N.O.A. and the S.S.S. present at the collation centre.

While the plaintiffs were waiting for the 1st and 2nd defendants to publish the results and declare in the gazette, newspapers, or any other media deemed appropriate as required by the State Electoral Law 2002, (as amended), the 1st and 2nd defendants on the 29/4/2004 announced over the State Radio in Makurdi, that the elections into Kwande Local Government have been postponed indefinitely. Highly dissatisfied with the decision of the 1st and 2nd defendants, the plaintiffs took out an originating summons asking the trial court to determine whether the 1st and 2nd defendants have the constitutional and legal power to postpone elections in Kwande Local Government Council after the said elections were validly conducted and the results duly declared and returned, by the returning officers for the local government in favour of the plaintiffs. When the originating summons was pending before the trial court, the defendants by motion filed, challenged the jurisdiction of the trial court to hear and determine the suit of the plaintiffs. In its ruling on 23/4/2004 the trial court declined jurisdiction.

The plaintiffs by writ of summons filed on 31/3/2004 claimed the reliefs as follows:

1. A declaration that it is illegal, unconstitutional and ultra vires the powers and statutory duties of the 1st and 2nd defendants to have announced as they did through Radio Benue on the 29th day of March, 2004 that elections into Kwande Local Government Council (L.G.C.) have been postponed indefinitely, after the said elections were duly and validly conducted on the 27th day of March, 2004 and results duly and lawfully declared in favour of the plaintiffs on the 28th day of March, 2004.
2. A declaration that the only power vested in the 1st and 2nd defendants after the elections into Kwande L.G.C. were duly conducted and results duly declared, was for the 1st and 2nd defendants to have published the results in the State gazette, newspapers or any other media deemed appropriate, and that the announcement over Radio Benue that the elections have been postponed in the circumstances was an act of statutory illegality, unconstitutional and ultra-vires, null and of no effect.
3. An order of court directing the 1st defendant either by itself or through its agents/servants to publish in State gazette, newspapers or any other media deemed appropriate, results of the elections conducted in Kwande L.G.C. of Benue state on the 27th day of March, 2004 as duly and validly declared by the Returning Officer of the Local Government Area on the 28th day of March, 2004 as evidenced by exhibits A1 – A15 annexed to the supporting affidavit.
4. An order of perpetual injunction restraining the defendants from carrying into effect or giving effect to the announcement that election into Kwande L.G.C. have been postponed, on the ground that the elections were duly conducted and results validly declared as required by law.
5. An order of injunction restraining the defendants from doing any act prejudicial to the results of the elections aforesaid as evidenced by exhibits A1 – A15 or doing anything or act capable of affecting or prejudicing the rights and interest of the plaintiffs in the said results as duly declared.
6. An order directing the defendants to swear the 2nd and 3rd plaintiffs into the office of Chairman and Vice-Chairman of Kwande L.G.C. having duly been returning winner at the said election.
7. Any other legal or equitable order that meets the justice of this case.

Statement of facts and particulars supporting the application are as follows:

1. The 1st plaintiff is one of the registered political parties in Nigeria, and during the Local Government elections held on 27/3/2004, the 1st plaintiff sponsored the 2nd and 3rd plaintiffs as its candidates for the office of Chairman and Vice-Chairman of Kwande Local Government Council of Benue State within jurisdiction as well as 15 councillorship candidates.
2. The 2nd and 3rd plaintiffs are politicians and contested the election of 27/3/2004 in Kwande Local Government as averred herein before in paragraph 1 hereof.
3. The defendants were responsible for the elections of 27/3/2004 which they conducted, declared the results and copies of the results as declared duly given to the plaintiffs as required by the Electoral Act/Law.
4. On 29/3/2004, the defendants in breach of the Electoral Act/Law and acting ultra-vires, announced over the Radio Benue that the elections into Kwande Local Government have been postponed indefinitely.
5. Whereof, plaintiffs are highly aggrieved by the decision of the defendants, on the grounds that same is ultra-vires and unconstitutional and plaintiffs pray the court for interpretation of the provisions of the Electoral Law 2002, (as amended) of Benue State, and the Constitution of Nigeria, 1999.

The originating summons was supported by an affidavit and two verifying affidavits of 9, 7, and 5 paragraphs sworn to by Mr. Samuel Aga (State Secretary of the 1st plaintiff), Hon. Didymus Tamen (1st plaintiff collation agent), and Hon. Basil Chianson (the State collation agent for 1st plaintiff) respectively in paragraphs 2-8 the affidavit in support of the originating summons which are relevant hereto, it is deposed as follows:

1. That I am the State Secretary of the 1st plaintiff and by my position, I keep copies of all correspondence and other documents of the party (the 1st plaintiff herein).
2. That I know as a fact, that on the 27/3/2004, elections were held in Kwande Local Government Area of Benue State for the office of the Chairman, Deputy Chairman and Councilors for the Local Government Council.
3. That I know as a fact, that after the elections, results of the election to the offices of the Chairman, Deputy Chairman and Councilors were collated and declared.
4. That I know as a fact, that after the counting of votes and the results duly ascertained, the returning officer for the local government elections on the 28/3/2004:

(a) Completed the Certificate of Return.

(b) Declared the result of the poll and read the completed certificate of return aloud in the place of counting.

(c) Gave copies of the certificate of return to the agents of the 1st plaintiff, the Police, National Orientation Agency and the State Security Services present at the collation centre.

5. That I know as a fact, that the copies of the Certificate of return in respect of the chairman and councillorship elections issued to the party agents of the 1st plaintiff and which I keep custody of, for the 1st plaintiff are annexed as exhibits A1 – A15 respectively.
6. That I know as a fact, that despite exhibits A1 – A15, that 1st and 2nd defendants announced over Radio Benue on 29/3/2004, that elections in Kwande Local Government Council have been postponed indefinitely.
7. That I know as a fact, that p1 and 2nd defendants through their agents duly conducted election in Kwande Local Government Council and produced the results, copies of which are exhibits A1 – A15.
8. That my party, ANPP, the pt plaintiff herein, is highly dissatisfied with the acts of the defendants as deposed in paragraph 6 hereof and decides to seek for the construction and interpretation of the Electoral Laws of the Federation and Benue State.

The 1st verifying affidavit of facts in paragraphs 1 – 6 deposed as follows: