Hon. Sumbo Olugbemi V. Hon. Olujide Adewale Lawrence & Ors (2017)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or Lower Court, Coram: Monica B. Dongban-Mensem, Modupe Fasanmi, Chinwe Eugenia Iyizoba JCA with Fasanmi JCA delivering the lead judgment on the 28th day of October, 2016.
The appellant being dissatisfied with the said judgment filed an appeal to this Court vide his Notice of Appeal of two grounds.
FACTS BRIEFLY STATED:
The 1st respondent filed an action before the Federal High Court, Ibadan on the 24th day of October, 2014 wherein he sought two declaratory reliefs and five ancillary orders. The pleadings and claims of the 1st respondent as plaintiff are as contained in the Writ of Summons and Statement of Claims in the said pleadings to throw light into what are at stake, thus:-
i. A DECLARATION that the plaintiff is the duly elected flag bearer of the 2nd defendant for February, 2015 general elections into the House of Representatives to represent Oluyole Federal Constituency Ibadan, Oyo State having polled the majority of lawful votes cast at the primary
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election conducted by the 2nd defendant on the 7th day of December, 2014, and was so declared the winner.
ii. A DECLARATION that the nomination of the 1st defendant as the 2nd defendant’s candidate or flag bearer for the February, 2015 general elections for the seat of the member of House of Representative to represent Oluyole Federal Constituency is ultra-vires, null and void,
iii. AN ORDER nullifying the nomination of the 1st defendant and the substitution of the plaintiff by the 2nd defendant as its candidate for the representative representing Oluyole Federal Constituency, Ibadan.
iv. AN ORDER directing the 2nd and 3rd defendants to forthwith accord the plaintiff his due recognition as their flag bearer for February 2015 general election into the House Representatives to represent Oluyole Federal Constituency, Ibadan.
v. AN ORDER of perpetual injunction restraining the 2nd and 3rd defendants from recognizing, acting or doing anything in recognition of the nomination and selection of the 1st defendant as the 2nd defendants candidate for the forthcoming February, 2015 elections into the House of Representatives to represent Oluyole Federal
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Constituency, Ibadan, Oyo State.
vi. AN ORDER nullifying the purported nomination of the 1st defendant by the 2nd defendant as its flag bearer to contest for the seat of the House of Representatives to represent Oluyole Federal Constituency Ibadan in the forthcoming general election scheduled to hold in February, 2015.
vii. AN ORDER directing the 4th defendant not to recognise or accord any recognition to the name of SUMBO OLUGBEMI or any person other than the name of Hon. OLUJIDE ADEWALE LAWRENCE as the 2nd defendant candidate for the House of Representatives to represent Oluyole Federal Constituency Ibadan, Oyo State.
viii. AN ORDER of this Honourable Court nullifying the nomination and election of the 1st defendant into the Oluyole Federal Constituency Legislative Seat, Ibadan, Oyo State of the House of Representatives.
ix. AN ORDER declaring the Claimant as the lawful Candidate of the 2nd defendant at the general election held on the 28th day of March, 2015 for Oluyole Federal Constituency Legislative seat (Oyo State) of the House of Representatives, National Assembly of the Federal Republic of Nigeria.
x. AN ORDER directing the
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4th defendant to immediately withdraw the certificate of return it issued to the 1st defendant as the candidate of the 2nd defendant in the general election held on the 28th day of March, 2015 into the Oluyole Federal Constituency Legislative seat (Oyo State) of the House of Representatives, National Assembly of the Federal Republic of Nigeria.
xi. AN ORDER directing the 4th defendant to immediately issue a certificate of return to the Claimant as the lawfully elected candidate of the 2nd defendant in the general election held on the 28th day of March, 2015 for the Oluyole Federal Constituency Legislative seat Oyo State) of the House of Representative, National Assembly of the Federal Republic of Nigeria.
xii. OR IN THE ALTERNATIVE to Paragraph XI above, AN ORDER of this Honourable Court ordering the 4th respondent to conduct a fresh general election into the Oluyole, Ibadan, Oyo State, Federal Constituency Legislative Seat of the House of Representatives, Federal Republic of Nigeria.
xiii. Cost of this action.
Subsequent to the amendment, the appellant herein filed an application to challenge the jurisdiction of the trial Court to
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entertain the claims of the 1st respondent vide his application dated 11th November, 2015 and filed on 12th November, 2015. The trial Court took the application and his lordship Hon. Justice N. Ayo Emmanuel dismissed the application on the 9th December, 2015.
The appellant being dissatisfied with the decision of the trial Court appealed against the same vide his Notice of Appeal of 23rd December, 2015.
At the Court below, the appellant sought and was granted leave to amend his notice of appeal, which amended Notice of Appeal dated 1/4/16 was deemed properly filed on 4/4/16.
On the 1st of February, 2017 date of hearing, learned counsel for the appellant, Kazeem A. Gbadamosi adopted his brief of argument filed on 1/12/1016 and in it he crafted a single issue, viz-
Whether having regards to the pleadings and the reliefs claimed by the 1st respondent, the learned Justices of the Court below were wrong in dismissing the appellants appeal by holding that the Federal High Court had jurisdiction over the claim of the plaintiff and that the main reliefs sought by the 1st respondent were against a Federal Government Agency (INEC). Covers grounds
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1 and 2 of the notice of appeal.
Learned counsel for the 1st respondent, Olakunle A. Faokunla Esq. adopted his brief of argument filed on 11/1/2017 and formulated a sole issue, viz:-
Whether the learned Justices of the Court of Appeal, Ibadan Division were right by holding that the Federal High Court has jurisdiction to hear and determine the 1st respondents claim having regards to the provisions of Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and Section 87 (9) of the Electoral Act 2010 as amended.
Olasoji O. Olowolafe Esq. of counsel for the 2nd respondent adopted its brief of argument filed on 31/1/17 and deemed filed on 1/2/17 and in it crafted a single issue as follows-
Whether the Lower Court was right in holding that the trial Court had the jurisdiction to try the case inspite of the reliefs sought by the 1st respondent.
Learned counsel for the 3rd respondent adopted his brief of argument filed on 19/1/17 and also adopted the issue as crafted by the appellant for the determination of the appeal.
All the issues as differently crafted ask me same question which is really whether the
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Court below was right in holding that the trial Court had jurisdiction to try the case inspite of the reliefs sought by the 1st respondent.
Pushing forward the position of the appellant, learned counsel, Kazeem Gbadamosi contended that from the totality of the reliefs sought by the 1st respondent, the 1st and 2nd reliefs of the 1st respondent which are declaratory in nature are the main reliefs and the other reliefs are ancillary as they are dependent on the grant of the 1st and 2nd reliefs. That the dichotomy between a main relief and ancillary relief is borne out of whether a relief can be granted independent of the other; while reliefs 1 and 2 can be granted and the other reliefs will follow. That if reliefs 1 and 2 are refused then it follows that all the other reliefs iii – xi and xii, the alternative relief which are dependent, will have to be dismissed. He cited Tukur v Governor of Gongola State (1997) 6 NWLR (Pt. 510) 549 at 582-583; Adenuga v Odemeru (2007) SC (Pt.1) 103 at 115-116.
Learned counsel for the appellant submitted that from the decisions of the Supreme Court cases cited above, reliefs 15 (vii) (x) (xi) and of the 1st
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respondents amended statement of claim against the 4th respondent are dependent on reliefs 1 and 2 as the reliefs above are ancillary. That based on that, the lower Court was wrong when it held that reliefs 15 (vii) (x) (xi) and (xii) of the 1st respondent’s amended statement of claim against the 4th respondent are principal reliefs and subject to the jurisdiction of the Federal High Court by virtue of Section 251 (1) (r) of the 1999 Constitution and Section 87 (9) of the Electoral Act 2010 as amended.
Learned counsel for the appellant stated that as ancillary reliefs cannot stand on their own and cannot metamorphose to become the principal or the main relief. He referred to Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 415-416.
That reliefs 3 and 9 which are against INEC are not fundamental are ancillary claims. That relief 1-8 and all the alternative claims question pre-primary election affairs of the party which no Court has jurisdiction to entertain.
It was concluded for the appellant that this appeal should be allowed on the principle in Kakih v. PDP (supra) and set aside the decision of the lower Court and to hold that the Federal
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High Court lacked jurisdiction over the substantive matter placed before it in view of 1st and 2nd reliefs which ought to be the main reliefs.
Mr. Faokunla for the 1st respondent submitted that the Federal High Court, State High Court and the High Court of the Federal Capital Territory have jurisdiction in respect of Pre-election matters and so since Section 87 (9) of the Electoral Act, 2010 (as amended) is at play, the matter of main claim or relief and ancillary claims are not applicable. He cited Jev v Iyortom (2014) AII FWLR (pt 747) 749 at 773-774; Lokpobiri v Ogola & Ors (2015) 10-11 MJSC 74 at 93-94; Section 251 (1)(S) of the 1999 Constitution (as amended).
He stated that the Federal High Court possessed the necessary jurisdiction to entertain the 1st respondents claim in line with the decision of this court in Lokpobiri v Ogola (supra) as the claims are brought under Section 87 (9) of the Electoral Act, 2010 (as amended).
Learned counsel for the 2nd respondent stated that because of the fundamental importance of the issue of jurisdiction, it could be said at any time and by anybody during the proceedings as time does not run out on the issue of
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jurisdiction. That raising the issue at this level of appeal is covered. That jurisdiction of Court is a matter of law, statute and Constitution and it is ascertained by taking a look at the claim of the plaintiff. He referred to the cases of Ibrahim v Lawal (2015) 17 NWLR (Pt.1489) 490 at 524-525; Elugbe v Omokhafe (2004) 18 NWLR (pt.905) 319 at 322; Adani v Igwe (1957) SCNLR 396; Adeyemi v Opeyori (1976) 9-10 SC 31 at 51; Okulate v. Awoosanya (2000) 2 NWLR (Pt. 646) 530 at 555-556.
The 2nd respondent towed the line of 1st respondents argument that it is the claim of the plaintiff that is considered to ascertain if the jurisdiction of the Federal High Court, State High Court or High Court of the Federal Capital Territory could be ignited. He relied on Adetayo v Ademola (2010) 15 NWLR (Pt. 1215) 169 at 191, James v INEC (2015) 12 NWLR (Pt. 1474) 538 at 597 etc.
That the trial High Court lacked jurisdiction to entertain this case because the main claim had nothing to do with the 4th respondent, who though a Federal agency would not suffice in activating the jurisdiction sought. He cited the case of Owners of Mv “Arabella v. NAIC (2008) 11 NWLR
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(Pt.1097) 182 at 121.
For the 3rd respondent, it was contended that the Court below ought to have struck out the case for a lack of jurisdiction in line with Kakih v PDP & 3 Ors (2014) 15 NWLR (Pt.1430) 374.
The stance of the appellant in brief is that the appeal be allowed and the decision of the Court below set aside and this Court hold that the trial Court has no Jurisdiction to entertain the 1st respondents claim.
The position of the 1st respondent is that this appeal be dismissed and the two Courts below correct.
The 2nd and 3rd respondents towed the line of the appellant and urged the Court to reverse the decision of the Court of Appeal and order a striking out of this case.
At the Court of trial, it was held on this issue of principal or main or ancillary relief stated thus:-
“It is however my opinion that it is the magnitude of a relief that would determine whether such relief ought to be classified as principal or ancillary and in addition what should determine whether a relief is principal or not is the character of the relief which consist in the substance and weight thereof. Learned counsel to the
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applicant has not put forward or convinced me what makes the above referred reliefs auxiliary. I therefore find and hold that reliefs 15 (vii), (x), (xi) and (xii) of the plaintiff’s amended statement of claim against the 4th defendant are principal reliefs and therefore subject to the jurisdiction of this Court by virtue of Section 251 (1) (r) of the 1999 Constitution and Section 87 (9) of the Electoral Act (as amended). Prayer on the application is hereby refused.
Modupe Fasanmi, learned JCA, of the Court of Appeal affirmed that trial Court’s decision and stated as follows:-
“After a thorough reading of the 1st respondent claim in his amended statement of claim reproduced earlier in this judgment, I am on the same page with the learned trial Judge that reliefs 15 (vii), (x). (xi) and (xii) of the 1st respondents amended statement of claim against the 4th respondent are principal reliefs and therefore subject to the jurisdiction of the Federal High Court by virtue of Section 251(1)(r) of the 1999 Constitution and Section 87 (9) of the Electoral Act 2010 as amended.”
A revisit of the amended statement of claim of the plaintiff/1st
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respondent at the Court of trial would have a refreshing effect to the mind lest we forget what is at stake.
The appellant had sought to guide the Court into the realm of Section 251 (1) of the 1999 Constitution and its limitations towards producing a dichotomizing effect in the main or principal reliefs or ancillary reliefs issue. That is that because according to the appellant and supporters, the 2nd and 3rd respondents, the reference in the claim connecting a Federal Agency, in this instance INEC, the Independent Electoral Commission being ancillary to the main relief which did not connect that Agency, the jurisdiction of the Federal High Court was and cannot be activated in the suit herein.
I shall quote the relevant part of Section 251 of the Constitution which is thus:
Section 251 (1)(s)
“1. Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High court shall have and exercise Jurisdiction to the exclusion of any other Court in civil cases and matters.”
(Underlining mine).
“(S) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not
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as may be conferred upon it by an Act of the National Assembly.” (Underlining mine).
Section 87 (9) of the Electoral Act, 2010 as amended states:-
“Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
In the case of Lokpobiri v Ogola & Ors (2015) 10-11 MJSC Pg. 74 at 93-94, paras G to G, this Court said:-
“I want us to also note that both the opening of Section 251 (1) and Paragraph S of the subsection confer authority on the National Assembly, in addition to the general provision of legislative powers in Section 4 of the 1999 Constitution as amended to enact an Act conferring additional Jurisdiction on the Federal High Court either exclusive or concurrently with State and Federal Capital Territory High Courts.<br< p=””
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It is on the basis of the above constitutional provision particularly Sub-section (1) Paragraph (s) of Section 251 of the 1999 Constitution that the National Assembly enacted the Electoral Act, 2010, as amended and conferred concurrent Jurisdiction in pre-election matters on the Federal High Court and State and Federal Capital Territory High Courts in Section 31 (5) and (6) and 87 (9) therefore which provide, inter alia….
Also to be referred is the case of Jev v Ivortvom (2014) All FWLR (pt. 747) pg. 749 at 773 Paras F-A, where the Supreme Court held:
“However, where the political party decides to conduct primary election to choose its flag bearer, any dissatisfied contestant at the primary is now empowered by Section 87 (9) of the Electoral Act 2010 (as amended) to ventilate his complaint before the Federal High Court or High Court of a State or of the Federal Capital Territory; Peoples Democratic Party v Timipre Sylva. The said Section 87 (9) is clear and unambiguous, the Courts are enjoined to give them their ordinary grammatical meaning: Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1.
By inserting this new provision into the
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Electoral Act, the legislation has made its intention very clear as to the reason, and purport, that a member of a political party who contested the primary election is entitled to challenge a breach of the party Constitution or Guidelines or Electoral Act, by filing an action at the Federal High Court or State High Court or the Federal Capital Territory High Court, simpliciter.”
The appellant really made a lot of fuss on main or principal relief as against ancillary relief upon which jurisdiction of Court may or may not be activated. Perhaps this Court had in a clairvoyant manner gone to great lengths in dealing with this attempt at creating boundaries of main and ancillary reliefs in relation to jurisdiction of Court in the case of Lokpobiri v Ogola (2016) 3 NWLR (pt. 1499) 328 at 366. The Court said:-
“To me, it is erroneous to say that for the Federal High Court to entertain a pre-election matter, the main relief(s) must be shown to fall within the exclusive jurisdiction of the Court because both jurisdictions are different. In a concurrent jurisdiction, if Court A has Jurisdiction to hear all the reliefs claimed, it necessarily
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follows that Court B must have the same jurisdiction otherwise it means giving something to someone with one hand and taking it away with the other hand.
It is settled law that election and election related matters are sui generic (sic) and that the jurisdiction to hear and determine them is statutory just as the rights and obligations connected therewith or arising there from. It is in that respect that the principles of common law may not be appropriate in election and related matters.
It is not in dispute that in civil actions, the jurisdiction of a Court to hear and determine the plaintiffs action depends on the claim(s) in the writ of summons and his pleadings. On the other hand, the jurisdiction of a Court to hear and determine an election or election related matter is statutory as provided in the statute establishing the cause of action and conferring Jurisdiction on the appropriate or particular Court(s) to hear and determine same.
In terms of election or election related matters, the jurisdiction of the Federal High Court to hear and entertain such matter is rooted in the relevant provisions of the Electoral Act,
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2010 as amended earlier reproduced in this judgment. In respect of matters relating to post election jurisdiction of the Court, see Section 251 (4) of the 1999 Constitution as amended also supra. If we insist on the jurisdiction of the Federal High Court on pre- election and/or post election matters being exercisable only where the main claim(s) is/are within the exclusive jurisdiction of the Federal High Court, it will result in injustice on the litigants which is clearly not the intention of the legislature. It is therefore very clear that the concurrent jurisdiction conferred on the Federal High Court to hear and determine pre-election and even post election matters is clearly outside the exclusive jurisdiction of the Court under Section 251 of the 1999 Constitution as amended but in addition to the said exclusive jurisdiction and consequently subject to different consideration.
It is therefore my considered opinion when the Federal High Courts pre-election jurisdiction is invoked, the parties claims and relief(s) must be in conformity with the provisions of the Electoral Act, 2010, as amended, not under the provisions of Section 251 of the 1999
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Constitution as amended. In fact, INEC may be a nominal party or be liable to an ancillary claim in a pre-election or post elections jurisdiction of the Federal High Court.
The position I have taken on this issue is advised by the decision of this Court in Jev v Iyortom (2014) 14 NWLR (pt. 1428) 575 at 611-613; 626- 627; 630 and 631-632.
My attention has been drawn by learned counsel for the Respondent to the decision of this Court in PDP v Sylva (2012) 8-13 NWLR (pt. 1316) 85 and Kakih v PDP (2014) 15 NWLR (pt. 1430) 374 said to be in support of their contention that for the Federal High Court to exercise its pre-election jurisdiction under the Electoral Act, 2010, as amended, the main claim(s) or reliefs of the plaintiff must be within the purview of the provisions of Section 251 of the 1999 Constitution, as amended. A detailed reading of the facts of PDP v Sylva supra does not support that contention. The case simply held that Sylva who was not screened by his party (PDP) for the primaries in question nor participated in the said primaries, failed to bring himself within the provisions of Section 87 (9) of the Electoral Act, 2010, as amended and as
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such he had no locus standi to institute an action under the Section 87 (9) in any Court in Nigeria as his complaints were within the internal affairs of a political party which are not Justiciable. So, the reliefs claimed in that action were incapable of invoking the jurisdiction of the Court- see pages 127 & 137-139 or the report. It must be pointed out that the effect of the decision in Sylvas case is that the action as constituted was not a pre-election matter and as such, it could not be entertained in any Court. Any other thing said is clearly obiter.
With respect to the decision of this Court in the case of Kakih v PDP, supra. I wish to emphasise that the Court did not hold the Federal High Court does not have jurisdiction to hear and determine pre-election matters. It held that it does but that the jurisdiction so conferred is exercisable by that Court when the main claim of the plaintiff falls within the provisions of Section 251 of the 1999 Constitution and not when the claim against an agency of the Federal Government is ancillary.
Having regard to what I have stated earlier in this judgment with respect to the Sui generic
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nature of an election or election related matter and the jurisdiction of the Courts to entertain them, which are special statutory jurisdictions, the fact that the Federal High Court, by operation of Section 251 (4) of the 1999 Constitution is also clothed with jurisdiction to entertain post election matters whose claims or reliefs may not necessarily involve/affect the Federal Government or any of its agencies, it is clear that the intention of the legislature in conferring the additional jurisdiction of the Federal High Court in relation to pre-election and post-election matters is clearly that the additional jurisdiction is to be exercised by the Court in accordance with Electoral Act, 2010, as amended, creating the jurisdiction as well as Section 251 (4) of the 1999 Constitution. It is therefore clear that Kakihs case as regard the issue of the jurisdiction of the Federal High Court in pre-election matters is limited to its peculiar facts and circumstances having regard to the decision in Jev v Iyortvom supra.
It follows therefore that once an aggrieved party comes within the ambit of Section 87 (9) of the Electoral Act, 2010 (as amended), the
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issue of main relief as against an ancillary one does not come into play or arise. Removing jurisdiction for some of the reliefs and endowing for other reliefs to a Court will lead to confusion as one Court will be dealing with a particular relief while the other Court is sorting out the reliefs allotted to it in a severance method that beats the imagination. It would produce a never ending dispute since the facts in the two Courts are the same arising from the same base.
What is obtaining in the matter at hand as 1st respondent as plaintiff has his claim well positioned under Section 87 (9) of the Electoral Act, 2010 as amended, the original claims as captured in the Writ of summons and statement of claim and thereafter the Amended Statement of Claim. The said Section 87 (9), is opened with the word ”aspirant” which the 1st respondent is as defined under Section 156 of the said Electoral Act to mean a person who aspires or seeks or strives to contest an election to a political office.
Also to be noted is that reliefs 15 (vii), (x), (xi) and (xii) in the amended statement of claim which are to direct the 4th defendant, INEC, a Federal Agency not only
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to deny recognition to the 1st defendant and party but to direct the said 4th defendant to withdraw the certificate of return already issued to the 1st defendant as candidate of 2nd defendant and to issue the certificate to the plaintiff. Certainly what is sought in those reliefs cannot in all honesty be treated with the levity to which an ancillary claim would be labelled as they are principal or major claims and prayers. Again I seek refuge in the case of this Court in Lokpobiri v. Ogola supra at at page 106 Paras A-D, The Supreme Court said:-
“In Section 251 (1) and (s) of the Constitution (supra) read together with Section 31 (5) and Section 87 (9) of the Electoral Act (supra), it is specious and spurious to argue, as the respondent did, that the Federal High Court has no Jurisdiction, if the claim brought pursuant to Section 87 (9) of the Act (supra) does not involve the Federal Government or any of its agencies is a party the claim against it must be a principal relief and not a mere subsidiary thereof. This is a fallacy created by skewed construction of the provisions of the Constitution (supra) and the Electoral Act (supra) (Underlining mine).
In my
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humble view, the Federal Government or any of its agencies does not have to be a party in suit brought pursuant to Section 31 (5) and 87 (9) of the Electoral Act (supra) before the Federal High Court can exercise the jurisdiction conferred on it.
To hold the contrary view is to render inoperative and unnecessary the underlined portions of Section 251 (1) and (S) of the Constitution (supra).
Clearly, appellant had cited Kakih v PDP (2014) 15 NWLR (Pt. 1430) 374 out of con for the facts therein are not on all fours with what we are here faced with.
Indeed, the matter herein is laid to rest as the two Courts below were right in holding that the Federal High Court was seised with jurisdiction to hear the pre-election matter before that Federal High Court pursuant to Section 87 (9) of the Electoral Act, 2010 (as amended). The controversy on the issue of main or principal or ancillary relief does not arise and this appeal definitely lacks merit as the concurrent findings and conclusion of the two Courts below are not to be tampered with, the exceptions that would have empowered this Apex Court to so interfere, upset, disturb those findings
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and conclusion do not exist. The appeal is therefore dismissed.
I award the sum of N250,000,00 as costs to the 1st respondent to be paid by the appellant.
SC.993/2016