Labour Party V. Independent National Electoral Commision (2008)

LawGlobal-Hub Lead Judgment Report

OKORO, J.C.A,

At the Federal High Court sitting in Katsina, the applicant who was the plaintiff therein, by an originating summons submitted for determination the following questions, namely:-

1. Whether by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria 1999, section 32 (7) of the Electoral Act, 2006, and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006 the plaintiff is not entitled to submit to the defendant and the defendant mandated to receive from the plaintiff, the plaintiff’s list of candidates for any bye-election, fresh election or new election into any elective office to be conducted by the defendant in any part of Nigeria, including Adamawa State of Nigeria.
2. Whether by virtue of the Supreme Court decisions in Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 and Amaechi v. INEC & Ors (2007) 18 NWLR (Pt.1065) 98, it is not the prerogative of the plaintiff to nominate and sponsor candidates of her choice for any forthcoming bye-election, fresh election or new election to be conducted in Nigeria or any part thereof, including Adamawa State.
3. Whether, in the light of the decision of the Court of Appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007 delivered on 26th February, 2008 upholding the nullification of the April 14th, 2007 Governorship election in Adamawa State, and ordering a fresh or bye-election, the plaintiff is entitled to submit a list of candidates for the said fresh, new or bye-election for the office of Governor of Adamawa State of Nigeria as required by section 32(7) of the Electoral Act, 2006.

Four reliefs are sought from the court below as follows:

1. A declaration of this honorable court that by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria, 1999, section 32(7) of the Electoral Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, the plaintiff is entitled to submit to the defendant, and the defendant mandated to receive, the plaintiff’s list of candidates for any bye-election, fresh election or new election into any elective office to be conducted by the defendant in any part of Nigeria, including Adamawa State of Nigeria.
2. A declaration of this honorable court that by virtue of the Supreme Court decisions in Ugwu v. Ararume (2007) 12NWLR (Pt.1048) 367, and Amaechi v. INEC & Ors. (2007) 18 NWLR (Pt.1065) 98, it is the prerogative of the plaintiff to nominate and sponsor candidate of her choice for any forthcoming bye-election, fresh election or new election to be conducted in Nigeria or any part thereof including Adamawa State.
3. A declaration of the honorable court that in the light of the decision of the Court of Appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007, delivered on 26th February 2008 upholding the nullification of the April 14th, 2007 governorship election in Adamawa State, and ordering fresh or bye-election, the plaintiff is entitled to submit a list of candidates for the said fresh, new or bye election for the office of the Governor of Adamawa State of Nigeria as required by section 32(7) of the Electoral Act, 2006.
4. An order of the honorable court directing the defendant to receive from the plaintiff her list of candidates for the said bye election, fresh election or new election to any, elective office in Nigeria and in particular, the scheduled bye-election, fresh or new election to the office of governor of Adamawa State of Nigeria, and to allow plaintiff to participate in the said bye-election, fresh election or new election by the nomination and sponsorship of a candidate of her choice.

The respondent filed an 11-Paragraph counter affidavit paragraph 6 of which states:

“6. That the plaintiff is not entitled to nominate any candidate for Adamawa State Governorship Election as ordered by the Court of Appeal.”

By an order of the said Federal High Court dated 12th day of March, 2008, the lower court having granted an application of the plaintiff/applicant, referred three constitutional questions adjudged by him to constitute substantial question of law, for the determination by this court. The three questions are as follows:-

1. Whether having regard to sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, the right of a political party to nominate and sponsor candidates of her choice for an election is limited to general elections, and does not apply to bye-elections, fresh elections or new elections.
2. Whether the fresh election ordered to be held after the nullification of the April 14th, 2007 Governorship Election in Adamawa State and the said decision of the Court of Appeal in Independent National Election Commission and others v. Action Congress and others CA/J/EP/GOV/419/2007 is a general election under the constitution of the Federal Republic of Nigeria, 1999 or a bye-election under section 32(7) of the Electoral Act, 2006.
3. Whether by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria 1999, section 32(7) of the Electoral Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, a political party registered in Nigeria is entitled to submit to the Independent National Electoral Commission and the Commission mandated to receive from the political party a list of candidates for any bye-election, fresh election or new election into any elective office to be conducted upon the nullification of a previous election by an Election Tribunal.

This constitutional reference is sequel to section 295(2) of Constitution of the Federal Republic of Nigeria which states:

“295(2)Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the Court is of opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal, and where any question is referred to in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.”

As can be gleaned from this constitutional provision, the Court of Appeal is duty bound to answer these questions which have been referred by the Federal High Court. This Court has no option in the matter and cannot refer same to the Supreme Court. If it is an examination, it can be said to be a compulsory question. And having given an answer to the question so referred, the Federal High Court or State High Court as the case may be is bound to dispose of the case out of which the question arose in accordance with the answer provided by the Court of Appeal. See Togun v. Oputa (No.1) (2001) 16 NWLR (Pt.740) 577.

Let me point out here that this court is not directly concerned with the reliefs sought before the Federal High Court nor will this court grant or refuse those reliefs. It is not even within our purview to consider same. The reliefs shall be considered, granted, or refused by the court below. That is the import of section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, apart from the three constitutional questions thrust upon this court for answers, this court cannot go into the merit or otherwise of the substantive matter before the court below. That being the case, the two issues submitted for determination by the respondent appears to be outside the purview of our mandate.

Therefore the issue,

(1) whether given the facts and circumstances of this case, the court below had jurisdiction to entertain the originating summons; and

(2) whether the court below had jurisdiction to restrain enforcement of the order of a superior court which is, with due respect to the learned senior counsel outside the purview of this exercise.

I shall in the circumstance discountenance the two issues submitted for determination by the learned senior counsel for the respondents. Consequently, the reliefs sought therein which are completely outside the mandate of this court are also discountenanced. See Federal Republic of Nigeria v. Ifegwu (2003) 15NWLR (Pt.842) 113.