Abia State Independent Electoral Commission V Kanu & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

The respondents, herein, as plaintiffs at the Federal High Court, sitting at Abuja (trial court) commenced by a writ of summons, the suit which gave rise to this appeal. Their claims were as follows:

i. “A declaration that by virtue of section 7[4] of the 1999 Constitution, section 10[1][2][3] of the Electoral Act, 2006, S.11[4] of the Electoral Act, 2006 and S.16 of the Electoral Act, 2006, Abia State Independent Electoral Commission has no power to conduct elections for Local Government Councils on the 19th day of May, 2007 in the absence of Voters’ register.

ii. A declaration that any purported method for the conduct of the forthcoming local government elections which runs contrary to the provisions of the Electoral Act, 2006 and the 1999 Constitution is unconstitutional null and void.

iii. An order of mandatory injunction restraining Abia State Independent National Electoral Commission from holding and/or conduction local government elections in Abia State on the 19th day of May, 2007 or any other date until the voters register is duly corrected, updated and issued by the Independent National Electoral Commission.

iv. In the Alternative, an order mandating Independent National Electoral Commission to forthwith release and make available to the Abia State Independent Electoral Commission voters register in compliance with Section 16 of the Electoral Act, 2006. (see Record pages 7-8).

By an interim order made on the 17th day of May, 2007, the trial court restrained the Abia State Independent Electoral Commission, the appellant herein, from conducting Local Government Elections in Abia State on the 19th day of May, 2007. According to the appellant, it entered a conditional appearance to the respondents suit. On the 22nd of May, 2007, the appellant filed a motion on notice challenging the jurisdiction of the Federal High court to entertain respondents suit. After taking arguments on the Preliminary Objection, the trial court dismissed appellants Preliminary Objection. The appellant appealed to the court below against the dismissal of its Preliminary Objection. The court below on the 4th of June, dismissed the appeal. The appellant further appealed to this court.

Two issues were formulated in the appellants brief. They are as follows:

i. “Was the Court of Appeal right when it held that the Federal High Court has jurisdiction to entertain Respondent’s suit

ii. Was the Court of Appeal right when it held that Section 182[1][d] of the Abia State of Nigeria

Local Government Law No. 2 of 2006 is ‘inconsistent with a statute of the National Assembly and to that extent of the inconsistence void”

Learned counsel for the respondents formulated only one issue for determination. It reads as follows:

“Whether the lower court was right in affirming the decision of the trial court that it had jurisdiction to entertain the suit.”

While making his submissions, the learned counsel for the appellant argued that the appellant is not an agent or agency of the Federal government. Issues pertaining to Local Government Election of any state of the Federation including Abia State is not one of the subjects upon which jurisdiction is conferred on the Federal High Court under Section 251 of the 1999 Constitution or any other Act. The Federal High Court, therefore, clearly, lacks jurisdiction to entertain respondents’ suit. The inclusion of INEC as 2no defendant does not make any difference as the respondents did not seek any substantive relief against INEC, and relief No. [iv] sought against INEC by the respondents is an alternative relief.