Action Congress (AC) & Anor V. Independent National Electoral Commission (Inec) & Anor (2007)

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ABOKI, J.C.A.

In this application, the respondents/applicants are praying this court for the following order(s):

1. An order striking out the appeals filed by the appellants on the 3rd day of April, 2007 and 11th of April, 2007 respectively for lack of jurisdiction of this Honourable Court, election having taken place on the 14th of April, 2007.
2. AND for such order or further orders as this Honourable Court may deem fit to make in the circumstances.”

The application is brought pursuant to section 285(2) of the 1999 Constitution, section 18 of the Court of Appeal Act. Order 1 rule 19, Order 3 rules 2(7) Court of Appeal Rules, 2002 and the inherent powers of the court and it is supported by an eighteen (18) paragraph affidavit and an annexure marked as exhibit B. Paragraphs 4-17 of the affidavit in support of this application are pertinent and are hereby reproduced as follows:

“4. That two appeals, one final and the other interlocutory are currently pending before this Honourable Court.

5. That the first appeal arose from the decision of the trial Judge, Ogie, J. of Federal High Court, Abuja on the 28th of March, 2007 nullifying, among other reliefs, the disqualification of the 2nd plaintiff/respondent/applicant, Dr. Chris Ngige, the candidate sponsored for the Anambra State Governorship election by the 1st plaintiff/respondent/applicant by the appellants without an order of court and directing INEC and its Chairman, Prof. Iwu, to include his name in the final list of candidates and in the ballot papers for the conduct of the said election.
6. That the second appeal arose from the ruling of the trial Judge on 11th of April, 2007 correcting the accidental slip/omission that occurred in the course of the typing, drawing up and enrolment of the judgment delivered on the 28th day of March, 2007.
7. That in the two decisions now subject of the appeal before this court, the appellants refused to obey or comply or enforce any part of the decisions aforesaid.
8. That consequently, the governorship election the subject of these two appeals took place on Saturday the 14th of April, 2007 in Anambra State without the plaintiffs being included in the final list of candidates and in the ballot paper for the election as ordered by the trial court.
9. That I also aware that on Monday the 19th of April, 2007 the Supreme Court of Nigeria ruled that INEC has no power to disqualify or screen out any candidate nominated by his political party without an order of court.
10. That I verily believe the said decision of the apex court has more or less taken care of the appeals challenging the judgment of the trial court in this court.
11. That I am informed by one of the counsel for the plaintiffs/respondents/applicants, Mr. Rickey Tarfa SAN and I verify believe him that the two pre-election appeals now pending in this court have become academic having been overtaken by events.
12. That I am further informed by the said counsel and I verily believe him that the issues now following the subject matter of the two appeal can be conveniently taken up and dealt at the Election Petition Tribunal since election has now taken place.
13. That the costs of compiling and transmitting the record of appeal in these proceedings from the trial court to this court were solely borne by the plaintiffs/respondents/applicants.
14. That since the holding of the governorship elections in Anambra State on the 14th of April, 2007 without the inclusion of the plaintiffs/respondents/applicants, the appellants (the election umpire) has shown nonchalance and indifference in the compilation, transmission and prosecution of the appeals.
15. I recall that the motion for execution hurriedly filed by the umpire on the 11th of April, 2007 to avoid obeying the order of the trial court was later abandoned without the motion being moved thus resulting in the motion being struck out for lack of diligence on the 19th April, 2007.
16. That I am also aware that similar appeals lodged by INEC and pending in his Honourable Court have been withdrawn by the Commission and subsequently struck out for lack of jurisdiction to hear the said appeals. Now shown to me and marked exhibits ‘A and ‘B’ are the CTC of enrolled order and proceedings respectively in the case of INEC v. ANPP in CA/A/85/07 and Amaechi v. INEC in CA/A/70/07 made and delivered on the 10th and 16th of April, 2007 respectively.
17. That I verily believe that it will be in the interest of justice if these two appeals are struck out by the Honourable Court for lack of jurisdiction.”

In opposition to this application, the appellants/respondents deposed to a seven (7) paragraph counter-affidavit.

When this application came up for argument, learned counsel for the respondents/applicants. Emeka Ngige. SAN submitted that pursuant to the order of this court, they filed written address. He said that the appellants/defendants filed their reply on 14/5/2007 to which the respondents/applicants filed a reply on points of law on 15/5/2007. Learned counsel adopted the respondents/applicants’ written submission and emphasized on two areas of the written address.

The first is on the applicability of Amaechi’s case in which he argued that this case is different from Amaechi’s case as delivered on 8/5/2007 and 11/5/2007. He contended that what is in issue in this appeal is disqualification of a candidate and that the decision from the appeal before the Supreme Court had rendered the appeal before this court academic.

The second point he contended is on jurisdiction, which the appellants/respondents said is a pre-election matter. He argued that the motion for stay having been abandoned and later struck out, that goes to show that there is no life issue to be decided.

Learned senior counsel maintained that they have exhibited the decision of this court in a similar case, which has been referred to as exhibit B in the affidavit in support of this application.

Emeka Ngige, SAN urged the court to strike out this appeal.

He maintained that the case of Rotimi Amaechi cited by the appellants/defendants has not changed the principle in the cases which have become academic.

In a reply on behalf of appellants/respondents, their counsel Tochi Nwogu submitted that on 14/5/2007 they filed a written address to the motion to strike out the appeal. Learned counsel said they filed a seven (7) paragraph counter-affidavit and that they wish to adopt all the paragraphs of the counter-affidavit and to emphasize that at the lower court they raised so many issues on the propriety of the lower court entertaining the matter. He contended that five issues were raised in this appeal and that disqualification is only one of such issues.

Learned senior counsel urged the court to look at the grounds of appeal. He argued that they had raised issues covering pre-election matters. He contended that it has been argued by the applicants that the matter is res judicata. He argued that the appellants/defendants have a right to be heard under the Constitution of the Federal Republic of Nigeria. 1999 and urged the court not to grant the prayers of the applicants.

Paragraphs 3-6 of the counter-affidavit are impari materia to this application and they are hereby adumbrated as follows: