Vivian Clems Akpamgbo-okadigbo & Ors V. Egbe Theo Chidi & Ors (2) (2015)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The 1st to the 5th respondents on the 5th day of June, 2011 commenced suit No. FHC/ABJ/CS/574/2011 by way of judicial review at the Federal High Court, Abuja division, hereinafter referred to as the trial court, seeking inter alia for an order of prohibition to restrain the 6th respondent, INEC, from issuing the appellants’ certificates of return in respect of the Anambra State House of Assembly Elections for the Ekwusigo, Oyi, Anambra East, Dunu Kofia and Awka North constituencies.

In upholding the preliminary objection of the appellants, being then the defendants, the trial court at page 977 -978 of vol.1 of the record of appeal held as follows:-

“To conclude, I wish to add that this very suit where the plaintiffs want the certificates of return already issued to the defendants and also to compel INEC to swear them in (the plaintiffs) as members of the Anambra State House of Assembly, is a post election action, I earlier said in this judgment that this court cannot enforce the judgment of Kolowole J. by making a consequential orders (sic) for reasons stated above, I hold that this court has no jurisdiction to entertain the plaintiffs originating motion dated 15th June, 2011.

Dissatisfied with the foregoing decision, the plaintiffs filed appeal No. CA/A/177/2012 to the Court of Appeal, Abuja Division, hereinafter referred to as the Lower Court. In a considered judgment delivered on the 8th of November, 2013, the Lower Court allowed the appeal and proceeded to determine the suit in favour of the 1st – 5th respondents.

It is against that judgment of the court that the defendants at the trial court, 1st – 5th respondents at the Lower Court, have appealed to this court.

At the hearing of the appeal, counsel to parties thereto on identifying their respective briefs adopted and relied on same as their arguments for or against the appeal.

The three issues formulated in the appellants’ brief of argument as having arisen for the determination of the appeal read:-

“(i) Whether in view of the Supreme Court’s decision in the case of Hasson v. Aliyu (2010) 17 NWLR Pt.1223 p.547, the trial Court had jurisdiction to entertain Suit No.FHC/ABJ/CS/574/2011 which was filed 50 days after the conduct of the 2011 House of Assembly Election in Anambra State. (The issue relates to Ground of Appeal No.1)

(ii) Whether Suit No.FHC/ABJ/CS/574/2011 as constituted, filed on the 15th day of June, 2011 (50 days after the election) by the 1st to 5th Respondents herein and which questioned the return of the Appellants herein by INEC was a pre-election matter which the trial court had jurisdiction to hear and determine. (This issue relates to Grounds of Appeal No. 2 and 3)

(iii) Whether grounds 1 and 2 of the 1st to 5th Respondents Notice and grounds of Appeal to the Lower Court (found on pages 980 to 985 of the Record of Appeal vol. 1) are competent in law. (This issue relates to Ground of Appeal No.4).”

The 1st – 5th respondents have either adopted the appellants’ foregoing issues in their respective briefs as those calling for determination in the appeal or formulated similar issues differing only in slant. The 6th and 7th respondents did not file any briefs of argument in the appeal. Instead, they cross appealed.

Since it is the appellants who are dissatisfied with the judgment of the Lower Court and seek redress by way of the instant appeal, their grief will be addressed on the basis of the issues they distilled which issues encapsulate their complaints against the Lower Court’s judgment. The Cross Appeals filed by the 6th and 7th respondents would be separately considered.

Arguing the appeal under their 1st and 2nd issues, learned appellants’ counsel submits that in determining whether or not a court has jurisdiction in a matter, it is the plaintiff’s claim that settles the issue. 1st – 5th respondents’ claim at the trial court, it is contended, clearly seeks reliefs against the issuance of certificates of return to the appellants by the 6th respondent. The claim also shows that the suit was filed on 15/06/2011 some fifty days after the election. Such a complaint coming after the conduct of the election and not being a complaint about the nomination and sponsorship of the candidate of a political party for an election can only be post election complaints. Post election complaints, it is argued, are ventilated, by virtue of Section 285 of the 1999 Constitution and Section 133(1) of the Electoral Act 2010 as amended, only at the election petition tribunal.