Senator Umaru Dahiru & Anor V. All Progessives Congress & Ors (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
The appellants, as plaintiffs at the Federal High Court sitting at Abuja, hereinafter referred to as the trial Court, took out an originating Summons against the defendants, the respondents herein, challenging the primary election that led to the nomination and sponsorship of the 3rd respondent by the 1st respondent to contest the Sokoto State Gubernatorial election held on the 11th April 2015.
The respondents challenged the jurisdiction of the trial Court to proceed primarily because the 2nd respondents conduct of the Sokoto State Gubernatorial election and return of the 3rd respondent as the winner thereof had rendered appellants’ action academic and worthless.
In a well considered decision dated 26th May 2015, the trial Court overruled the preliminary objections severally raised by the respondents and concluded that it has jurisdiction to hear and determine appellants cause of action.
Dissatisfied with the ruling, the respondents appealed to the Court of Appeal, Abuja Division, hereinafter referred to as the lower Court. In its
judgment delivered on the 21st December 2015, the Court found merit in the appeal and allowed same.
Aggrieved, the plaintiffs at the trial Court have appealed against the lower Court’s judgment to this Court.
At the hearing of the appeal, learned counsel having identified their parties’ respective briefs adopted same as their arguments for or against the appeal.
In the appellant’s brief, the following two issues have been distilled from their four grounds of appeal as having arisen for the determination of the appeal:-
“(a) Whether the Court below was right to hold that based on the reliefs sought at the trial Court, the instant suit had become academic (Distilled from grounds (d) and (b)).
(b) Whether the appeal at the Court below was not premature having regards to the nature and circumstances of the proceedings which led to the appeal. (Distilled from Grounds c and d).
1st respondent’s lone issue for the determination of the appeal at page 2 of its brief reads:
“Was the Court of Appeal right to hold as it did that the suit of the appellants had become academic having regards to the reliefs sought before the
trial Court and whether this Honourable Court can exercise its power under Section 22 of the Supreme Court Act to hear and determine the suit on the merit.”
The 2nd respondent though adopting at page 4 of its brief the two issues distilled by the appellants for the determination of the appeal, it appears ambivalent in its submissions thereon.
It is not bothered which way the appeal goes.
The 3rd respondent has not filed any brief of argument.
The role of a respondent in the appeal process, it must be restated, is to urge the correctness of the judgment being appealed against. Unless by virtue of a respondents notice or a cross appeal, the respondent cannot urge any point against the judgment appealed against. This must be so because, being a respondent, he is confined in his formulation of issues for the determination of the appeal to the grounds of appeal contained in appellant’s notice of appeal. In the case at hand, therefore, 2nd respondent’s ambivalent brief and oral submissions must and are hereby accordingly discountenanced. Having filed no brief in the appeal, the 3rd respondent is equally in no position to urge any
contrary point to those held by the Court below on this Court. See Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266 and A.P.G.A. v. Umeh (2011) 2-3 MJSC (Pt. 1) 96, Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 37 and Atanda v. Ajani (1989) 3 NWLR (Pt. III) 511.
Appellants by their terse submissions urge us to adjudge the lower Courts judgment which forecloses them from the reliefs Section 87 of the Electoral Act entitles them to as perverse. The pursuit of such a cause of action, the appellants contend, cannot be said to be academic and untenable. The trial Court, notwithstanding the conduct of the election to which appellants cause of action relate, can, at conclusion of hearing, consequentially order the replacement of the 3rd respondent who is not the lawful candidate of the 1st respondent at the election. Learned appellants’ counsel relies inter-alia on Abubakar v. Yar’adua (2008) 4 NWLR (Pt. 1078) 435, JEV & Anor v. Iyortom and Ors (2015) LPELR-24420 (SC), Odedo v. I.N.E.C. (2007) ALL FWLR (Pt. 392) 1907 at 1924, Amaechi v. I.N.E.C. (2008) 1 SC (Pt. 1) 1 at 105 and Action Congress v. I.N.E.C. (2007) 18 NWLR (Pt. 1065) 50 in support
of these submissions in urging this Court to allow the appeal.
Responding under its first issue, John A. Matthew, Esq. for the 1st respondent submits that the lower Courts conclusion that Suit No. FHC/ABJ/CS/11/2015 has become academic is unassailable. Though the appellants may secure reliefs (a) (d) which are declaratory may avail the appellants, reliefs (e) to (g), with the occurrence of the Sokoto State 11th April 2015 gubernatorial election and the return of the 3rd respondent by the 2nd respondent, do not. Appellants action, for this reason, has become untenable. Courts, including the Supreme Court, it is further contended, lack the jurisdiction of determining hypothetical and academic issues. The combined reading of Sections 32 and 33 of the Electoral Act, it is argued, makes the substitution of the 3rd respondent the gubernatorial election having been conducted by the 2nd respondent, impossible. Inter alia, learned counsel cites in support Owners of the MV Arabella v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182, Ikenya v. P.D.P. (2012) NWLR (Pt. 1315) 50, A.G. Federation v. A.N.P.P. (2003) 12 SC (Pt. 11) 146 at 170 and Mamman v.
Salaudeen (2005) 18 NWLR (Pt. 958) 478 at 500 and insists that appellants action is unsustainable.
Concluding, learned counsel submits that the decision in Gwede v. I.N.E.C. & 3 Ors (2004) 18 NWLR (Pt. 1438) 56, being on different facts, does not avail the appellants. Commending the decision in Emeka v. Okadigbo (2012) LPELR-9338 (SC), learned 1st respondent counsels urges us to distinguish the facts and circumstances of the instant case from the decisions relied upon by the appellants. The unmeritorious appeal, it is contended, should be dismissed.
Now, by their originating summons filed on 27th January 2015, well before the Sokoto State gubernatorial election that held on 11th April 2015, the appellants are seeking the trial Court to determine the following questions:-
a. Whether the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, is within the exclusive domain of Section 87 of the Electoral Act 2010 (as amended).
b. Whether the conduct of the Governorship Primaries of the 1st Defendant
conducted on the 4th of December, 2014 was not grossly in non-compliance with the provisions of Section 87 of the Electoral Act 2010, the A.P.C. 2014 Guidelines for the Nomination of Candidates for Public Offices (hereinafter referred to as A.P.C. 2014 Guidelines and therefore, unlawful, illegal, null and void.
c. Whether in the circumstances of this case, the Plaintiffs are not entitled to relief having exhausted internal party mechanism to redress the non-compliance with the Electoral Act 2010 (as amended), A.P.C. 2014 Guidelines for the Nomination of Public Offices and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
d. Whether it is lawful for the 3rd Defendant to act on a candidate nominated by the 1st Defendant for the purpose of the general elections when such a candidate was elected in violation of the Electoral Act, 2010, and the electoral guidelines established by the 1st Defendant.”
Consequent upon its determination of the foregoing questions, the appellants further seek of the trial Court the following reliefs:-
“a. A Declaration that the procedure for the nomination and/or sponsorship of candidates for
elective offices recognized by the Electoral Act 2010 and the Constitution of the Federal Republic of Nigeria 1999, is within the exclusive domain of Section 87 of the Electoral Act 2010 (as amended) and the Guideline of Political parties.
b. A Declaration that the conduct of the Governorship Primaries of the 1st Defendant held on the 4th of December 2014 was grossly in non-compliance with the provisions of Section 87 of the Electoral Act 2010, the All Progressive Congress 2014 Guidelines for the Nomination of Candidates for Public Offices (hereinafter referred to as A.P.C. 2014 Guidelines) and therefore, unlawful, illegal, null and void.
c. A Declaration that in the circumstances of this case, the Plaintiffs are entitled to relief having exhausted internal party mechanism to redress the non-compliance with the Electoral Act, 2010 (as amended), A.P.C. 2014 Guidelines for the Nomination of Candidates for Public Offices and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
d. A Declaration that it is unlawful for the 3rd Defendant to act on a candidate nomination by the 1st Defendant for the purpose of the general elections
when such a candidate was elected in violation of the electoral guidelines established by the 1st Defendant.
e. An Order of this Honourable Court directing the 1st Defendant to withdraw the nomination and sponsorship of the 2nd Defendant as the Gubernatorial Flag bearer of the All Progressive Congress and to hold another governorship Primaries in Sokoto State within such reasonable time as may be determined by the Court.
f. An Order of this Honourable Court directing the 3rd Defendant to expunge the name of the 2nd Defendant from its register of governorship candidates for the 2015 governorship elections pending the holding or conduct of gubernatorial primaries by the 1st Defendant.
g. An Order of interlocutory injunction restraining the 3rd Defendant from placing the name of the 2nd Defendant on the ballot for the 2015 governorship election pending the holding of gubernatorial primaries by the 1st Defendant.”
Section 87 of the Electoral Act 2010 as amended which prescribes the procedure political parties including the 1st respondent herein shall uphold in nominating candidates for elections particularly provide in Subsection 9
thereof as follows:-
“(9) Notwithstanding the provisions of this 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 F.C.T., for redress.”
Appellants’ claim as earlier reproduced in this judgment seeks such reliefs that fall squarely within the purview of the foregoing clear and unambiguous provision. The facts on which the appellants predicate their action are not in dispute. The two had participated in the primary election that led to the emergence of the 3rd respondent as 1st respondents candidate in the 11th April 2015 Sokoto State Gubernatorial Election. The appellants assert that the 1st respondent stands in breach of its own Constitution and the law in the conduct of the primary election that brought about the candidature of the 3rd respondent in the 11th April 2015 Sokoto State gubernatorial election. The real issue in controversy between the parties, therefore, is not whether the trial
Court lacks the jurisdiction to hear and determine appellants cause of action but whether the jurisdiction as conferred under Section 87 (9) of the Electoral Act, 2010 as amended has become academic in other words needless, empty and capable of being enforced with the conduct of the Sokoto State gubernatorial election on 11th April, 2015.
The trial Court in resolving the very narrow issue, in its well considered decision dated 26th May 2015, concluded at page 1113 of volume 2 of the record of appeal thus:-
The issues is simple and straight forward, and that the conduct of election does it extinguish the right of the Plaintiff to the action. My obvious answer will be in the negative. So the mere fact that election took place does not extinguish the right of an aggrieved party to the suit. On this my proposition of the law I will place reliance on the case of GWEDE v. I.N.E.C. & 3 ORS (2014) LPELR-23763 SC. (underlining mine for emphasis).
The lower Court, on the other hand, firstly held at page 1199 of vol. 2 of the record as follows:-
In this case, the 1st and 2nd respondents by originating summons, are
seeking 7 (seven) reliefs. The first four prayers are declaratory in nature while the remaining three are injunctive orders I completely agree that prayers (e)-(g), which are injunctive reliefs, sought by the 1st and 2nd respondents have been overtaken by events. This is so because the election, in respect of which the injunctive orders are sought, has since been conducted and concluded by the 3rd respondent. The law is that injunction, which is an equitable relief or remedy cannot be granted in respect of a completed act. See The Attorney-General and Commissioner for Justice, Anambra State & 4 Ors. v. Robert C. Okafor & Ors (1992) 2 NWLR (Pt. 224) 394
At pages 1200-1201 of vol. 2 of the record, the Court continued as follows:-
I agree with the very sound legal argument that declarations constitute complete relief. However, the declarations sought by the 1st and 2nd respondents, even if granted, without the appropriate injunctive orders to back them, will yield no practical benefits to the 1st and 2nd respondents. To be brief, their action or suit has become academic. On when an action is academic, see
Government of Plateau State v. Attorney-General of the Federation (2006) 3 NWLR (Pt. 967) 346.
And concluded at page 1202 as follows:-
The 1st and 2nd respondents suit, that is suit No. FHC/ABJ/CS/11/2015 filed on 27/01/2015 in the Federal High Court, Abuja Division, having become academic, is hereby struck out.
Both Courts below cannot be right in their opposing decisions on the issue in controversy in the instant case.
I agree with the learned counsel for the appellants that this Court has since resolved the issue and that by the doctrine of precedent the two Courts are bound by the decisions of this Court on same. More specifically, counsels defence of the trial Courts reliance on the decision of this Court in Gwede v. I.N.E.C. & 3 Ors (supra) is unassailable. The decision in Gwede v. I.N.E.C. & 3 Ors (supra) drew from this Courts earlier decisions inter alia in Ugwu v. Ararume (2007) 6 SC (Pt. 1) 88, Adeogun & Ors v. Fashogbon & Ors (2008) 5-6 SC (Pt. 1) 23, Amaechi v. I.N.E.C. (2008) 1 SC (Pt. 1) 36 and particularly Odedo v.
I.N.E.C. & Ors (2008) 7 SC 25 which facts are on all fours as in the instant case. In the latter case, this Court per Niki, JSC of blessed memory at page 59 opined thus:-
In Amaechi, this Court dichotomized between a pre-election matter and an election matter for the purpose of determining whether a suit is merely an academic exercise
I was not in the panel in Amaechi but, I entirely agree with my brothers decision that a pre-election matter cannot be said to be one of mere academic exercise. On the contrary it is a live issue. (Underlining mine for emphasis).
His lordship dealt further at page 61 of the report as follows:-
Mr. Adekwu submitted that the reliefs sought by the appellant, even if granted. are incapable of enforcement. With respect, I do not agree with him.
The reliefs are not only capable of enforcement but can be enforced. If a Court of law comes to the conclusion that the substitution was not in compliance with Section 34, it will declare it a nullity as was done in the case of Ugwu v. Ararume (2007) 6 SC (Pt. 1) 88; (2007) 12 NWLR (Pt. 1048) 367.
(Underlining mine for emphasis).
Oguntade, JSC in concurring stated at page 72 of the law report thus:-
“The position of this Court in a situation similar to the one we have in this case was exhaustively discussed in Amaechi v. I.N.E.C. supra:-
it is my view that the approach of the respondents to this case was to kill Amaechis case in the misconceived notion that once election were held, the Court would lose its jurisdiction. It is my firm view that the jurisdiction of the ordinary Courts to adjudicate in pre-election matter remains intact and unimpaired (Underlining mine for emphasis).
In the case at hand, the lower Court, contrary to the foregoing decisions of this Court, and indeed its own earlier decisions, proceeded to extinguish the trial Courts jurisdiction in respect of appellants pre-election action the two Courts persistently held to be extant notwithstanding the fact that the election to which the cause of action relates had been conducted.
In Adeogun & Ors v. Fashogbon & Ors (2008) 6 SC (Pt. 1) 23 the appellant, as in the instant matter, instituted a
pre-election suit at the Federal High Court challenging his substitution by the 2nd defendant with the 1st defendant as the formers candidate in an election that was yet to hold. By his suit, the plaintiff sought of the trial Court some declaratory and injunctive reliefs. On dismissal of his suit by the learned trial judge, the plaintiff appealed to the Court of Appeal. The respondents in the appeal, by a motion on notice, urged the Court to decline jurisdiction to determine the appeal which, with the conduct of the election, it was argued, had become academic. In dismissing the motion, the Court per Aboki, J.C.A. relied on Section 34(1) and (2) of the Electoral Act 2006 and held thus:-
The procedure engaged by the political parties and I.N.E.C. can be challenged in Court for the interpretation of the provision of the Section. See the unreported (sic) Supreme Court case of Engr. Charles Ugwu v. Senator Ifeanyi Ararume & 2 Ors (2008) 6 SC (Pt. 1) 88. In conclusion this Court has jurisdiction to entertain this appeal on substitution of a candidate for an election which is a pre-election matter. This application lacks merit and it is here
In upholding the foregoing decision of the Court of Appeal this Court reasoned that notwithstanding the fact that the election had taken place on the 21/4/07, the propriety or otherwise of the substitution of the plaintiff with the 1st defendant had remained a live issue for determination in the judicial process. Even though the principle on the point in issue in the case at hand is still extant, the lower Court, on the same facts has decided otherwise.
Aboki, JCA wrote the lead judgment in Adeogun v. Fashogbon & Ors (supra) which this Court affirmed. In the instant matter, it is intriguing, to say the least, to see the same Aboki, JCA, now a presiding judge in the panel which decision is appealed against, contrary to his earlier decision as affirmed by this Court, to be a manifest somersault. With such a visibly unpardonable refusal to be bound by the decision of this Court on a similar issue that called for the application of same or similar legislation, the negative perception the public has of the judicial process cannot be said to be without basis. The public is entitled, in the face of this brazen disobedience to the
authority of the apex Court, to conclude that the judiciary is compromised.
Parties who subsequently agitate same or similar issues before the Courts must fetch same or similar verdicts as did parties who earlier agitated the very same or similar issues. Certainty in decisions of Courts remains what the laudable doctrine of precedent or stare-decisis is all about. Ignoring the application of the doctrine is inimical to the judiciarys role as an arbiter. See Dalhatu v. Turaki (2003) 7 SC 1; and Shettima & 3 Ors v. Goni & 6 Ors (2011) 10 SC 92. We must sit up!!!
To allow the lower Court’s perverse decision is to enthrone judicial impertinence. Accordingly, I find merit in the appeal and set aside the lower Courts judgment. The matter is hereby remitted to the trial Court for same to be heard and determined expeditiously. Parties should bear their respective costs.