Senator Abubakar Saddiq Yardua & Ors V. Senator Abdu Umar Yandoma & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

By their amended originating summons filed on the 19th April 2012, the 1st to the 10th respondents in appeal No. SC.4/2014 commenced Suit No FHC/ABJ/CS/1042/2011 at the Federal High Court, hereinafter referred to as the trial court, sitting at Abuja, against the appellants and the 11th – 14th respondents seeking answers to the following questions:-

“1. Whether upon a proper construction of Section 68(1) of the Electoral Act 2010, as amended, the 1st Defendant has the power to review, either directly or indirectly, the return of the Plaintiffs by their respective returning officers, by purporting to withdraw the certificates of return issued to them consequent upon the said return.

2. Whether upon a proper construction of Section 75(1) of the Electoral Act 2010, as amended the 1st Defendant has the power to nullify, withdraw or render void and invalid the certificates of return issued to the Plaintiffs upon their being returned under Section 68(1) of the Electoral Act 2010, as amended as winners of election into their respective Federal Constituencies and Senatorial Districts of Katsina State of Nigeria without a valid order emanating from a court of competent jurisdiction so directing it.
3. Whether upon a proper construction of Section 75(1) & (2) of the Electoral Act 2010, as amended, the 1st Defendant has the power to issue certificates of return to 5th – 14th Defendants when a competent court of law had not invalidated or voided the certificates of return issued the plaintiff nor directed it to issue them with certificates of return.
4. Whether upon a proper construction of the Section 75(1) of the Electoral Act 2010, read along with Section 68(1) of the same Act as amended the certificates of return issued the 5th – 14th Defendants by the 1st Defendants in violation of the aforesaid provisions were validly issued and could be used as a basis for the swearing in of the 5th – 14th Defendants as members of the National Assembly, by the 2nd – 4th Defendants.”

Sequel to answers to the foregoing, the plaintiffs prayed the court for the following reliefs:-

“1. A Declaration that by virtue of Section 68(1) of the Electoral Act 2010, as amended the 1st Defendant lacks the power to review the return of the plaintiffs, either directly or indirectly, as the candidates who won the elections into the Senate and House of Representatives to represent their Federal Constituencies and Senatorial Districts, by purporting to withdraw their certificates of return and that the said return of the Plaintiffs can only be reviewed by the courts prescribed in Section 68(1) of the aforesaid Act.

2. A Declaration that by virtue of Section 75(1) of the Electoral Act 2010, as amended, the 1st Defendant lacks the power to cancel, nullify, review, withdraw, void, invalidate, either directly or indirectly, the certificates of return validly issued the Plaintiffs consequent upon their winning elections to represent their respective Federal Constituencies and Senatorial Districts in Katsina State, without an order or court first sought and obtained.
3. A Declaration that by virtue of Section 75(1) of the Electoral Act 2010, as amended, the 1st Defendant lacks the power to issue certificates of return to the 5th – 14th Defendants in relation to the Federal Constituencies and Senatorial Districts over which the Plaintiffs had earlier on been issued with valid certificates of return, when neither the Court of Appeal nor the Supreme Court had nullified the certificates of return issued to the Plaintiffs.
4. A Declaration that the sealed certificates of return issued to the Plaintiffs upon their winning election into the National Assembly to represent their various Federal Constituencies and Senatorial Districts of Katsina State are still valid and that the Plaintiffs are entitled to immediately repossess their seat in the National Assembly to represent their respective Federal Constituencies and Senatorial Districts without let or hindrance from the 2nd, 3rd, or 4th Defendants or any other persons.
5. A Declaration that the 2nd – 4th Defendants ought not to have sworn in the 5th – 14th Defendants into the National Assembly upon the invalid certificates of return issued the 5th – 14th Defendants by the 1st Defendant.
6. AN ORDER nullifying the certificates of return issued by the 1st Defendant to the 5th – 14th Defendants, and
7. AN ORDER directing the 5th – 14th Defendants to immediately vacate their seats in the National Assembly.”

The trial court, Coram Olotu J, in its judgment dated 11th January 2013, granted the plaintiffs all the reliefs they prayed for.

Dissatisfied, some of the defendants at the trial court, the appellants in appeal No. SC.4/2014, by a Notice filed on 14th January 2013 appealed against the decision. The Abuja Division of the Court of Appeal, hereinafter referred to as the lower court, dismissed their appeal No CA/A/83/2013 and affirmed the trial court’s decision.

Aggrieved by the lower court’s judgment, the appellants have further appealed to this Court on an amended Notice filed on 28th April, 2014 containing eleven grounds. The facts of the case that brought about all the three appeals to which this judgment relates need to be better appreciated. They are immediately recounted in remarkable details.

This is the second sojourn of the parties to this appeal to this Court. The 1st – 10th respondents in appeal No. SC.4/2014, earlier to their filing the suit that brought about the instant appeal, commenced Suit No. FHC/ABJ/CS/126/11, Lado and 42 ors V. CPC and 5 ors, at the Federal High Court sitting at Abuja and presided over by Kafarati J. The Congress for Progressive Change, CPC, had on 13th January 2011, through its National Secretariat, conducted primary elections, inter-alia, for all the available offices in the different senatorial Districts and Federal Constituencies in Katsina State.

Having contested the 13th January 2011 primaries and emerged victorious, the names of the appellants in appeal No. SC.4/2010, see Exhibit “A” annexed to their counter affidavits as the 5th – 15th respondents to the amended originating summons of the plaintiffs, the 1st – 10th respondents in the appeal, were forwarded to the Independent National Electoral Commission (INEC), the 11th respondent, as C.P.C’s candidates in the then impending Elections. Exhibit “B”, also annexed to the same counter affidavit of the appellants, is INEC’s acknowledgment of the receipt of CPC’s letter, Exhibit “A”, forwarding Appellants names as its candidates for the elections into the various senatorial Districts and Federal constituencies seats. Dissatisfied with this turn of events, the 1st – 10th respondents in appeal No. SC.4/2010 instituted Suit No. FHC/ABJ/CS/126/11 claiming inter-alia that they were the validly nominated candidates of the CPC having won the party’s primaries conducted by the Katsina State congress of the party on the 15th January 2011.

The trial court having found for the 1st – 10th respondents, plaintiffs in the earlier suit, ordered the Independent National Electoral Commission (INEC) to remove the names of the appellants and instead, place the names of the 1st – 10th respondents on the ballot for the April 2011 elections.

Appellants’ appeal against this decision of the trial court in the earlier suit was allowed by the Abuja Division of the Court of Appeal. The respondents at the lower court appealed to this Court. In its judgment on the consolidated appeals Nos. SC.157/11 and SC.334/11, delivered on 16th December 2011, the court, see page 342 of Vol. I of the record of appeal, on finding that the trial court had proceeded without jurisdiction, nullified the trial court’s decision as well as that of the lower court.

It was after and inspite of this decision of the court that the 1st – 10th respondents again instituted Suit No. FHC/ABJ/CS/1042/2011 which has, with the lower court’s affirmation of the trial court’s decision thereon, brought about the instant appeals Nos, SC.4/2014; SC. 7/2014 and SC.725/2013 to which this judgment relates.

Parties who earlier filed and exchanged their briefs of argument adopted and relied on these briefs as their arguments for or against the respective appeals on 20th October 2014 when the appeals were heard.

The six issues the appellants in appeal No. SC.4/2014 distilled from their grounds of appeal as calling for determination read:-

“1. Was it proper for the Court of Appeal to suo motu raise the issue of judicial Review of Administrative Actions as the reason for clothing the lower court with the jurisdiction to entertain the matter Having regard to the peculiar facts and circumstances of this case. (Grounds 3, 4 and 7).

2. Was the Court of Appeal truly correct when it held that the Appellants did not challenge the findings of the trial court that the 1st – 10th Respondents were the candidates who scored the highest number of votes and were returned as winners of the said election

(Ground 1).

3. Whether in the light of the decision of the Supreme Court in Emeka v Okadigbo (2012) 18 NWLR Pt. 1313 the Court of Appeal was right in holding that the 1st – 10th Respondents were the candidates for the CPC having regards to the peculiar facts and circumstances of this case. (Ground 2)
4. Whether having regard to the peculiar facts and circumstances of this case, the Court of Appeal was truly correct when it sought to rely on the case of Rossek v ACB (1993) 10 SCND at 39-40 to insist on the fact that the 1st – 10th Respondents remained the winner of the election until their Certificates of Return is set aside by a court of competent jurisdiction. (Ground 5)
5. Was the Court of Appeal right in its interpretation of S. 68 (1) (b) and S. 75 (1) and (2) of the Electoral Act 2010 having regards to the peculiar facts and circumstances of this case. (Grounds 8 and 9)
6. Were the Respondents ever candidates sponsored by the party at the election having regard to the peculiar facts and circumstances of this case, and more particularly the decision of the Supreme Court in LADO V CPC. (Grounds 10 and 11).”

The two issues formulated in the 1st and 2nd Respondents’ brief for the determination of the appeal are:-

“1. Whether the Court of Appeal raised suo motu the issue of the jurisdiction of the Federal High Court to judicially review the action of the INEC under Section 6(6) and 251(1) of the 1999 Constitution, as amended. If the answer is in the negative, whether the Court of Appeal was right when it held that the Federal High Court had the jurisdiction to entertain and determine the Plaintiffs’ claim.

Grounds 3, 4, 7, 10,

2. Whether the Honourable Court of Appeal was right in its interpretation of Section 68(1) of the Electoral Act 2010, as amended, in line with the judgment of the Federal High Court, that the Independent National Electoral Commission, INEC lacked the powers to withdraw the certificates of return issued to the 1st – 10th Respondents and re-issue new ones to the Appellants without an order from a Court of competent jurisdiction, notwithstanding the decision of the Supreme Court in SC.157/2011 and SC.334/2011, LADO & ORS VS CPC & ORS. Grounds 1, 2, 5, 6, 8, 9, 11.”

The 3rd to the 6th respondents also distilled two issues for the determination of the appeal as follows:-

“i. Whether, having regard to the entire facts and circumstances of this case, the court below properly and/or rightly considered the issue relating to the jurisdiction of the trial court and rightly concluded that the trial court had the jurisdiction to entertain the action of the 1st – 10 Respondents (Grounds 3, 4, 7 and 10)

ii. Whether, in the entire circumstances of this case, it was right for the court below to hold that the 11th Respondent, in view of Section 68(1) and 75 of the Electoral Act, 2010 (as amended), lacked the power, without an order of court, to administratively withdraw, set aside, cancel or nullify the Certificates of Return, which it had issued to the 1st – 10th Respondents who had been declared winners at the election, ant to issue new Certificates of Return to the Appellants and thereby affirming the decision of the trial court granting all the reliefs sought by the 1st – 10th Respondents (Grounds 1, 2, 5, 6, 8, 9 and 11).”

The 7th respondent also formulated two issues for the determination of the appeal. The issues read:-

“1. Whether the Court of Appeal was right in affirming the decision of the trial court and granting all the reliefs of the 1st – 10th Respondents. (Grounds 1, 2, 5, 6, 8, 9 and 10)

2. Whether the Court of Appeal apart from relying on the provisions of Section 6(6) and 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in upholding that the trial court has jurisdiction to entertain the 1st – 10th Respondents’ claim, also raised and/or relied on the Doctrine of Judicial Review of Administrative Actions in the nature of the prerogative writs in arriving at the some conclusion. (Grounds 3, 4 and 7).”

The two issues distilled in the 10th respondent’s brief of argument are:-

“1. Whether it is true that the Honourable Court of Appeal suo motu raised the issue that the trial court had the jurisdiction pursuant to sections 6(6) and 251(1)(p)(q) and (r) of the 1999 Constitution as amended to undertake a judicial review of the administrative actions of the 11th – 14th Respondents as was presented in this case. If the answer to the above question is in the negative, whether the lower court was right when it held that the trial court had the jurisdiction by virtue of the provisions of Sections 6(6) and 251(1)(p)(q) and (r) of the 1999 Constitution as amended, to judicially review the administrative actions of the 11th – 14th Respondents and to see if they are in consonance with the provisions of Sections 68(1) and 75(1) & (2) of the Electoral Act 2010 as amended, (Grounds 3, 4, 7 and 10).

2. Whether the Honourable Court of Appeal was right when it affirmed the decision of the trial court and dismissed the appellants’ appeal, regard being had to the facts and circumstances of the case and the evidence led. (Grounds 1, 2, 5, 6, 8, 9 and 11).”

The 11th respondent did not file any brief of argument.

The brief of argument filed by the 12th – 14th respondents having been withdrawn without objection was accordingly struck out. The two sets of respondents offered no argument for or against the appeal.

In appeal No. SC.7/2014 appellants formulated a sole issue for the determination of their appeal reads:-

“Whether the appellants were wrong in swearing in the 11th – 20th Respondents in places of the 1st – 10th Respondents as members of the National Assembly having regards to both the various certificates of return issued to the 11th – 20th respondents by the 21st Respondent and the decision of the Supreme Court in SC.157/2011, SC.334/2011 between Senator Yakubu Garba Lado & Ors V. CPC & Ors; Armiyau V. CPC & Ors respectively.”

The 1st and 2nd, as well as the 10th respondents in the appeal adopted the foregoing issue of the appellant for consideration in the determination of the appeal.

The similar issue formulated by the 3rd – 6th respondents at page 16 of their brief reads:-

“Whether, in the entire circumstances of this case, the court below rightly held that it was wrong for the Appellants to swear in the 11th – 20th Respondents to replace the 1st – 10th Respondents as members of the National Assembly when there was no order of court that nullified the 1st – 10th Respondents’ Certificates of Return and in consequence thereof affirmed the judgment of the trial court wherein all the reliefs sought by the 1st – 10th Respondents in their Amended Originating Summons were granted.”

It is significant to note that the 3rd – 6th respondents have, in adopting and relying on their brief of arguments also relied on the arguments in pursuit of their Notice of preliminary objection as to the competence of the appeal.

The not dissimilar issue presented by the 7th – 9th respondents for the determination of the appeal reads:-

“Whether the Court of Appeal was right in affirming the decision of the trial court and granting all the reliefs of the 1st – 10th Respondents.”

The 11th – 20th respondents in the appeal, appellants in appeal No. SC.4/2014, conceded to the appeal.

The 21st respondent in the appeal who did not file any brief of argument had nothing to urge the court in respect of the appeal.

The appellant in appeal No. SC.752/2013, the Independent National Electoral Commission, formulated two issues for the determination of its appeal thus:-

(1) “Whether having regard to the decision of the Supreme Court in SC.157/2011, SC.334/2011 Lado & ORS V CPC & others which obliterated the decision of the Federal High Court, on which the candidacies (six) of the 1st – 10th Respondents were forested the said Respondents remained members of the National Assembly under the platform of Congress for Progressive Change (CPC).

(2) Whether the Appellant was not bound, without more, to give effect to the decision of the Supreme Court in SC.157/2011; SC.334/2011: LADO & ORS v. C.P.C. & ORS having regard to the circumstance of this case.”

1st – 2nd Respondents formulated a sole issue also for the determination of the appeal as follows:-

“Whether the Honourable Court of Appeal was right when it affirmed the decision of the Federal High Court to the effect that the Appellant acted ultra vires when it withdrew the Certificates of Return issued to the 1st – 10th Respondents and re-issued new ones to the 11th – 20th Respondents without a valid court order in view of Section 68(1) and 75(1) of the Electoral Act 2010 as amended, notwithstanding the decision of the Supreme Court in SC.157/2011 and SC.334/2011, Lado & Ors V. CPC & Ors.”

The 3rd – 6th respondents having previously filed a Notice of preliminary objection relied on all the arguments including those on the objection on the adoption of the brief by their counsel at the hearing of the appeal. The sole issue for the determination of the appeal formulated in their very brief reads:-

“Whether, having regard to the entire facts and circumstances of this case, the court below rightly dismissed the Appeal before it and affirmed the decision of the trial court.”

The single issue distilled by the 7th – 9th Respondents for the determination of the appeal is:-

“Whether the Court of Appeal was right in upholding the decision of the trial court and granting the reliefs sought by the 1st – 10th respondents.”

The 10th respondent’s issue for the determination of the appeal reads:-

“Whether the Honourable Court of Appeal was right when it affirmed the decision of the trial court and dismissed the appeal regard being had to the facts and circumstances of this case.”

The 11th – 20th Respondents conceded the appeal. On withdrawing their brief and having same struck out by the court, the 21st – 23rd respondents also conceded to the appeal.

Appellants’ 1st, 3rd, 4th, 5th and 6th issues as well as the two issues formulated by each of the four sets of respondents in appeal No. SC.4/2014 all dwell on the lower court’s affirmation of the trial court’s finding that it has the jurisdiction to hear and determine 1st – 10th respondents claim in the first place. This jurisdictional issue remains a recurring decimal in all the issues formulated by the parties on both sides of the divide in appeals No. SC.725/2013 and SC.7/2014 as well. The commonality is not a coincidence. Rather, the resolve appears to be necessarily deliberate given the fundamental nature of the issue of jurisdiction in the adjudication process.

In a seemingly limitless chain of cases, this Court has held that the jurisdiction of a court is a radical and crucial question of the court’s competence and that where the court lacks jurisdiction and proceeds to hear and determine a case the proceedings, no matter how well conducted and decided, are a nullity ab initio and remain so. A defect in the competence of the court is extrinsic rather than intrinsic to the entire process of adjudication. The nerve centre of adjudication and akin to the blood that gives life to a human being which this Court terms it to be, jurisdiction of the court is therefore of overriding importance see Ag, Lagos State V. Dosunmu (1989) 3 NWLR (Pt III) 552, Ukwu V. Bunge (1997) 8 NWLR (Pt 518) 527 Nnonye V. Anyiche (2005) 2 NWLR (Pt 910) 523 and Daplalong V. Dariye (2007) 8 NWLR (Pt 1036) 332.

In arguing appeal No. SC.4/2014, under their 3rd and 6th issues, learned senior counsel to the appellants contends that this Court’s decision in Garba Yakubu Lado & 42 Ors V. CPC and 5 Ors (2011) 18 NWLR (Pt 1279) 689 has removed the rug beneath the 1st – 10th respondents’ feet. It was Kafarati J in determining the respondents earlier Suit No. FHC/ABJ/CS/126/11, it is argued, that ordered the placement of the 1st – 10th respondents names on the ballot. Otherwise, submits learned senior counsel, it was the appellants names, following their victory in the 13th January 2011 primaries conducted by the national organs of the CPC, that were sent as the candidates of the party in the elections as evidenced by Exhibit “A”. Exhibit “B”, also annexed to appellants’ counter affidavit in opposition to the amended originating summons, is INEC’s, acknowledgment of receipt of Exhibit “A”.

It follows from these two Exhibits, further contends learned senior counsel, that it was appellants’ names that was on the ballot. The nullification of Kafarati J’s order by this Court, submits learned senior counsel, reverted parties in the dispute to their respective positions before the placement of the 1st – 10th respondents on the ballot on the basis of the nullified order. The apex court’s decision in Lado V. CPC (supra), it is argued, not only nullified Kafarati J’s null and void order but the totality of the proceedings of that court undertaken without the necessary jurisdiction. The lower court’s failure to imbibe this trite principle of law, submits learned senior counsel, is fatal to the court’s decision. Learned senior counsel relies on Macfoy V. UAC Ltd (1962) AC 152 and Ladoja v. INEC (2007) 12 NWLR (Pt 1047) 119.

Further arguing the appeal under their 4th and 5th issues, learned senior appellants’ counsel submits that the further effect of this Court’s decision in Lado V. CPC supra is that the 1st – 10th respondents were never candidates in the elections they aver in the instant suit to have contested, won, returned and for which they were issued with certificates of return by the 11th respondent. The protection under Sections 68 (1) and 75 (1) of the Electoral Act, it is submitted, enures only to persons who were issued certificates of return who being candidates of their party contested and won the disputed election.

The appellants as well as INEC, the 11th respondent, further submits learned senior counsel, have deposed to facts in their respective counter-affidavits to the effect that the appellants names were those submitted to INEC as their party’s candidates in the elections; that the submission of their names followed their victory in the 13th January 2011 primaries conducted by the national organ of the CPC; that 1st – 10th respondents being candidates arising from the 15th January 2011 primaries conducted by the Katsina State Congress of the party, were neither their party’s candidates for nor contested the very elections. Learned senior counsel to the appellants insists that those facts as averred to by the appellants and the 11th respondent remain unchallenged and uncontroverted.

Relying inter-alia on Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (Pt 966) 205 at 221 Egbuna v. Egbuna (1989) 2 NWLR (pt 106) 773 at 777, Alagbe V. Abimbola (1978) 2 SC 39 at 40, learned senior counsel submits that the refusal of the two courts below to accept the unchallenged and uncontroverted averments in the two counter affidavits and act on them as true is fatal to their decisions.

Quite apart from the fact that the apex court’s decision in Lado V. CPC (supra) had removed the 1st – 10th respondents’ platform of instituting the instant action, the facts parties in the suit by their pleadings joined issues on, learned senior counsel also argues, cannot sustain the decision of the two courts.

Concluding under the two issues, it is submitted that in whatever guise the 1st – 10th respondents prefer to approach the court, the invalidity of the Katsina State primaries that produced them will always knock off any claim they set up as candidates of the party. Relying on the decisions of this Court in Emeka v. Okadigbo (2012) 18 NWLR (Pt 1331) 55 and Emenike V. PDP (2012) 12 NWLR (pt 1315) 556 at 594, learned counsel urges that the four issues be resolved in appellants favour and their appeal allowed.

Responding to appellants’ arguments, learned counsel for the 1st and 2nd respondents Elisha Kurah Esq submits under their 2nd issue for the determination of the appeal that INEC, the 11th respondent, by the provisions of the Electoral Act 2010 as amended and the 1999 Constitution as amended is vested with the power and responsibility of conducting, inter-alia, the elections into the National Assembly. Section 68(1) and Section 75(1) of the Electoral Act 2010 as amended under which the 1st – 10th respondents initiated their claim, it is further submitted, stipulate the statutory limits within which INEC is to exercise its powers. The two sections, contends learned counsel, make the declaration of scores and return of a candidate by a returning officer of INEC in respect of an election reversible only by an order of court. INEC lacks the power of reversing itself and its purported reversal of the declaration of scores, return as well as the withdrawal of the certificates of return issued to the 1st – 10th respondents is what, as plaintiffs, the respondents challenged at the trial court.

The law, contends learned counsel, empowers the court not only to determine whether or not INEC’s withdrawal of the certificates it issued to the 1st – 10th respondents was wrongly made but, by the tenor of Section 75(1) of the Electoral Act 2010 as amended, the successful candidates to be re-issued the return certificates. This exercise, it is argued, is a judicial determination which the 11th respondent, INEC, cannot, by law, make. The trial court’s decision which found INEC’s act ultra vires, null and void as affirmed by the lower court, being in tandem with the law, contends learned counsel, cannot be set-aside by this Court. He relies on the decisions in Enemuo V. Duru (2004) 9 NWLR (Pt 877) 75 at 85 and Musa V. Abubakar (2009) ALL FWLR (pt 451) 855 at 945.

Further arguing the appeal, learned counsel submits that the judgment of this Court in Lado & ors CPC & ors which the appellants insist supports INEC’s withdrawal of the certificates it issued to the 1st – 10th respondents without the order of a competent court of law, is unavailing to them. The apex court having declined jurisdiction, argues learned counsel, did not make any consequential order directing that anything more be done. The court in the judgment neither declared the appellants CPC’s candidates nor the winners of the April elections and entitled to be issued with certificates of return.

The fact remains, submits learned counsel, INEC’s issuance of certificates of return to the appellants who were neither candidates in nor winners of the April 2011 elections contradicts Section 141 of the Electoral Act and as held in Ombugadu V. CPC (2013) 18 NWLR (Pt 1385) 65 at 119-120 must be set aside. The affirmation by the lower court of the trial court’s decision setting aside INEC’s unlawful exercise of power, being facilitated by Sections 6(6) and 251(1) of the Constitution, it is contended, is beyond reproach.

Learned counsel further submits that it is not in dispute that 1st – 10th respondents had contested, won the election and having been declared winners by INEC issued with certificates of return by the latter. Their elections were neither challenged by the appellants nor set-aside by any competent court of law.

For INEC’s purported withdrawal of their return certificates to be allowed to persist, submits learned counsel, is to allow INEC to exercise appellate jurisdiction over the Court of Appeal which in law is the final court in respect of National Assembly election matters. Relying NDP V. INEC (2003) 5 NWLR (Pt 1351) 501, Okafor V. INEC (2010) 3 NWLR (Pt 1180) 1 and DR. Ngige V. Peter Obi (2006) 14 NWLR (Pt 999) 1. Learned counsel urges that we disallow the unlawful scuttling of 1st – 10th respondents victory by INEC.

In further argument, learned counsel to 1st – 2nd respondents refers to pages 1459-1460 where the trial court made conclusive findings that 1st – 10th respondents had proved their being candidates in the elections and on winning the elections were issued with the certificates of return. The averments in proof of these facts, counsel submits, remain unchallenged and controverted. The issue at the trial court and the lower court, it is contended, was never who CPC’s validly nominated candidates in the elections were. Rather, it was a challenge to the legality of 11th respondent’s unlawful withdrawal of the certificates of return it issued to the 1st – 10th respondents and the re-issuance of same to the appellants without the order of any court of competent jurisdiction. This, submits learned counsel, comes squarely within the purview of Sections 68(1) and 75(1) of the Electoral Act 2010 as amended.

Neither the case of Emeka V. Okadigbo (supra) nor Lado & ors V. CPC & ors (supra) avail the appellants in that regard.

Concluding, learned counsel justifies the lower court’s reliance on Rossek & 2 others V. ACB & 2 others (1993) 10 SCJN 20 submitting that inspite of the nullification of the decisions of the trial court and the Court of Appeal by the Supreme Court in Lado & ors V. CPC & ors (supra), a further court order was required to facilitate the withdrawal of the certificates of return issued to the 1st – 10th respondents by INEC. Since no court had made that order, the issuance of fresh certificates to the appellants after the purported withdrawal of those issued to the 1st – 10th respondents remains unlawful. To hold otherwise, learned counsel contends, is to allow the erosion of judicial powers of the courts which is a clear breach of the constitution. Urging this Court’s decision in Dr. O.G. Sofekun V. Chief N.O.A Akinyemi & 3 others (1980) 5-7 SC 1 on us, learned counsel prays that their 2nd issue for the determination of the appeal be resolved in their favour, the appeal adjudged unmeritorious and dismissed.

It is instructive to note that the arguments proffered by the 3rd – 6th, 7th – 9th and the 10th respondents in their respective briefs are similar to the foregoing arguments of the 1st – 2nd respondents. They differ only in form. Since dispensing with the drudgery of reproducing these arguments does none of them any harm, it helps all to avoid the wasteful exercise. It should be recalled as well that the 11th – 14th respondents, INEC, The Senate President, the Speaker, House of Representatives and the Clerk to the National Assembly having filed no briefs either conceded the appeal or urged nothing on us at the hearing of the particular appeal.

On the basis of the issues and the arguments the parties herein proffered in relation to the issues under reference, the question to answer primarily is:- whether the lower court’s affirmation of the trial court’s decision that it has the competence to hear and determine the instant suit is sustainable. This is clearly a jurisdictional issue. Jurisdiction has been broadly defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are founded or to the kind of relief sought. Thus when an issue of jurisdiction is raised, the court would consider whether:

(a) It is properly constituted as regards numbers and qualification of the members of the bench such that no member is for any reason disqualified.

(b) the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the court from exercise of its jurisdiction and

(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction see Madukolu & ors V. Nkemdilim (1962) 2 SCNLR 341.

And this Court has in a prethora of cases provided the procedure to guide the courts in the determination of the issue of their competence where same is raised. In Lado V. CPC (supra) which we all seem to be obsessed with in the matter at hand, this Court at page 724 of the report per Onnoghen JSC has stated the procedure broadly thus:-

“While it is settled law that it is the claim of a plaintiff as evidenced in the writ of summons and statement of claim that determines the jurisdiction of the court where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the court has no jurisdiction with regards to the subject matter of the dispute or that the claim, in reality, cannot come within the statutory jurisdiction of the court, the court will take into account the totality of the facts pleaded by the parties and the evidence adduced to establish the same in determining whether the court has jurisdiction or not.” (Underlining supplied for emphasis)

The procedure to adopt, where an objection is raised to the jurisdiction of the court in a matter commenced by originating summons, is to consider the objection together with the substantive matter. Invariably, this would involve the consideration of not only the reliefs being claimed against the background of the facts deposed to in the affidavit in support of the originating summons but the totality of available evidence including the facts contained in the counter-affidavit(s) in opposition to the originating summons. See Adeleke V. OSHA (2006) 16 NWLR (Pt 1096) 508, Amadi V. NNPC (2000) 10 NWLR (Pt 674) 75 at 100 and Dapilalong V. Dariye (supra).

In the resolution of the jurisdictional issue this appeal raises, therefore, the materials to examine in relation to the decisions of the two courts below are 1st – 10th respondents originating summons, their affidavit in support of same as well as the counter-affidavits of the defendants in the suit that brought about the instant appeal.

The questions the 1st – 10th respondents sought answers to as well as the reliefs in relation to the questions they urged the trial court to grant them have earlier been captured in this judgment. The facts on which the 1st – 10th respondents as plaintiffs ground their claim are contained in paragraph 4 of the affidavit in support of their originating summons, see pages 671-672 of Vol I of the record of appeal, which read thus:-

“4a. That he and other Plaintiffs are registered and bonafide members of the 15th Defendant and contested the April, 2011 general election for various Federal Constituencies and Senatorial Districts of Katsina State under the platform of the 15th Defendant.

b. That upon winning the election each, those of them that won the Federal Constituencies election where returned and issued with forms EC8E(1) while those won in their Senatorial Districts were returned and issued with forms EC8E.

c. That each one of them was issued with a certificate of return by the 1st Defendant.

d. That upon presentation of the Certificate of Return, the 2nd and 3rd Defendants duly swore them in as members (senator for the 1st and 2nd Plaintiffs and members of the House of Representatives for the 3rd – 10th Plaintiffs) of the National Assembly.

e. That their elections were unsuccessfully challenged at

(i) The Katsina State National Assembly Elections Tribunal and

(ii) Court of Appeal, Kaduna and their election were confirmed/affirmed.

f. That without any order of any Court of Competent jurisdiction, their Certificates of Return were purportedly withdrawn or cancelled, and fresh ones issued by the 1st Defendant to the 5th – 14th Defendants.

g. That pursuant upon the fresh Certificate of Return purportedly issued as aforesaid, the 2nd and 3rd Defendant swore in the 5th – 14th Defendants without any order of Court, to take the various seats of the Plaintiffs in the National Assembly.

h. That a copy of the 15th Defendants Katsina State Chairman to the National Secretary’s letter dated 28th January, 2011 forwarding the names of the Plaintiffs as their nominated candidates dated 28th January, 2011 is attached as Exhibit KT 1.

i. That the 5th – 14th Defendants to whom the fresh Certificates of Return were issued did not participate in the 9th April, 2011 elections as:

(i) They do not hove forms EC 8 series issued in their names after the election.

(ii) They had no Certificate or Return of that election in their names, after the declarations of the results.

j. That what the Plaintiffs want are declarations on whether the acts of the Defendants are within their powers under the Constitution, Electoral Law, other Acts and Regulations.” (Underlining supplied for emphasis).

In restating the content of their counter affidavit in opposition to the foregoing, the appellants pointedly aver in paragraphs 6-20, 21, 25-27 and 29-30 of the affidavit in support of their preliminary objection, see pages 736-738 of vol. 1 of the record of appeal, as follows:-

“6. That the entire paragraph 4, 5 and 6 of the Affidavit in support of the Originating Summons are false and or incorrect.

7. That on 13th January, 2011 the 15th Defendant in line with its Constitution and the Electoral Act, 2010 conducted its primaries to elect its candidates for the various Senatorial Districts and Federal Constituencies of Katsina State in the 2011 General election.
8. That at the end of the primaries held in designated centres of the various Senatorial Districts and Federal Constituencies, the 5th-14th Defendants emerged victorious and were nominated as candidates of the 15th Defendant for the respective Senatorial and Federal Constituencies in the 2011 general election.
9. That the 15th Defendant by its letter dated 14th January, 2012 forwarded the names of the 5th-14th Defendants as its candidates for the affected elective seats to the 1st Defendant. A copy of the said letter signed by Price (Dr) Lanre Tejuosho, the Chairman of its National Convention, Congresses and Primaries Committee is exhibited hereto as EXHIBIT A.
10. That at the close of nomination of candidates by political parties on the 31st January, 2012, the 15th Defendant submitted the names and nomination documents including the Affidavit in Support of Personal Particulars that is, INEC Form CF 001, of the 5th-14th Defendants as its candidates in the 2011 general election to the 1st Defendant and the receipt of the INEC Forms CF 001 of each of the 5th-14th Defendants was duly acknowledged by the 1st Defendant. Copies of the acknowledgement of the receipt of the 5th-14th Defendants’ Forms CF 007 are attached in the bundle exhibited herein as EXHIBIT B.
11. That after the 15th Defendant had submitted the names and nomination documents of the 5th – 14th Defendants as its candidates to the 1st Defendant, the Plaintiffs herein on the 3rd February, 2011 filed Suit No. FHC/ABJ/CS/126/11: LADO & 42 ORS V. CPC & 5 ORS before this Court seeking among other reliefs, for the court to nominate them as candidates of the 15th Defendant for the various Senatorial Districts and Federal Constituencies in the 2011 general election.
12. That the Plaintiffs did not challenge the nomination of the 5th-14th Defendants which was a product of the 13th January, 2012 primaries of the 15th Defendant and, also did not join the 5th-14th Defendants as parties to the aforesaid suit.
13. That despite the Preliminary Objection raised by the 15th Defendant (who was 1st Defendant therein) that the subject matter of the aforesaid suit was a matter within its domestic jurisdiction on which the court had no jurisdiction as well as the overwhelming documentary evidence it adduced before the court, the trial judge. Abdu-Kafarati, J gave judgment in favour of the Plaintiffs.
14. That the 15th Defendant was dissatisfied with the judgment in that suit and immediately lodged an appeal against it to the Court of Appeal, Abuja in Appeal No. CA/133/11 as well as filed a Motion for injunction pending appeal restraining the Plaintiffs and the 1st Defendant from giving any effect to the said judgment initially before the trial court but later at the Court of Appeal after the appeal was entered.
15. That the Court of Appeal upheld the 15th Defendant’s appeal in its entirety, held that the judgment in Suit No. FHC/ABJ/CS/126/11 was perverse and set it aside in its entirety.
16. That the Plaintiffs appealed against the Court of Appeal judgment to the Supreme Court in SC.156/11 and on 16th December, 2011, the Supreme Court unanimously disallowed their Appeal and held that the Court had no jurisdiction to entertain the subject matter and consequently struck out Suit No. FHC/ABJ/CS/126/11 (which had already been set aside by the Court of Appeal) for being incompetent.
17. That at no time whatsoever were the Plaintiffs nominated or sponsored by the 15th Defendant as its candidates in respect of 2011 general election or any other election.
18. That at all times, the only candidates nominated and duly sponsored by the 15th Defendant in the 2011 general election were the 5th – 14th Defendants.
19. That Exhibit KT 1 attached to the Further Affidavit in support of the Amended Originating Summons was not written by the 15th Defendant or any of its authorised Officers or Agents who conducted the 15th Defendant’s primaries in Katsina State.

Further, it was not part of the documents forwarded by the 15th Defendant to the 1st Defendant and does not contain the names of the candidates nominated and sponsored by the 15th Defendant at the various Senatorial Districts and Federal Constituencies of Katsina State in the 2011 general elections.

25. That it was due to the fact that the Plaintiffs were not nominated or sponsored by the 15th Defendant that made them institute Suit No. FHC/ABJ/CS/126/11 before this Court which Suit the Supreme Court held to be incompetent and consequently struck out in its judgment in SC.157/11 and SC.334/11.
26. That at no time were the Plaintiffs issued any valid certificates of Return or any other valid electoral document by the 1st Defendant
27. That the 1st Defendant merely issued the 5th – 14th Defendants their Certificates of Return in validation of the mandate won by them and their sponsoring political party, the 15th Defendant herein in the 2011 general election.
28. That this Suit is instituted to review the judgment of the Supreme Court in SC.157/11.
29. That the foundation of this Suit is the purported claim by the Plaintiffs to be the candidates of the 15th Defendant in the 2011 general election.” (Underlining supplied for emphasis).

The crucial averments in the counter affidavit of the 1st defendant, INEC, the 11th respondent are at pages 963-964 of Vol 2 of the record of appeal hereinunder reproduced for ease of reference

“4. Paragraph 4, (a) (b) (c) (d) (i)(i) (a)(b)(b) (c) (d) (i) (ii) and (e) of the affidavit in support are false, and I depose as follows:-

(i) As a person fully aware of the facts from inception of the nomination process and until the immediate incident which gave rise to this suit, I assert that at all times material, the appropriate candidates for the respective constituencies of the House of Representatives and Senatorial Districts with respect to Katsina State, were the 5th to 14th Defendants who were duly nominated by the 15th Defendant.

(ii) After the duly constituted primaries of the 15th Defendant, the 15th Defendant, in accordance with its Constitution forwarded the names of the 5th to 14th Defendants as the successful candidates, duly nominated for their respective constituencies.

The names were accordingly published as the contestants for the office in accordance with the Electoral Act

(iii) On 3rd February, 2011, the Plaintiffs herein filed Suit No:

FHC/ABJ/CS/126/2011 SEN. YAKUBU GARBA LADO & ORS V. C.P.C & ORS.

Claiming that they were aspirants of 15th Defendant who won the purported primaries of 15th January, 2011, as against the primaries conducted on 13th January, 2011 by the (C.P.C) 15th Defendant. On 25th February, 2011 the Federal High Court granted Plaintiffs’ claims.

(iv) Aggrieved by the decision the 15th Defendant herein appealed to the Court of Appeal in appeal No: CA/A/133/2011 C.P.C & ORS v. SENATOR YAKUBU GARBA LADO & ORS and the Court of Appeal set aside the decision of the Federal High Court stated above.

(v) The Plaintiffs herein appealed to the Supreme Court in SC.157/2011, SC. 334/2011: SEN. YAKUBU GARBA LADO & ORS V. C.P.C & ORS: DR. YUSHA’U ARMIYAU V. C.P.C & ORS and the apex court held that the dispute was intra party, related to nomination arising from competing primaries of which the Courts had no jurisdiction to adjudicate.

(vi) It is noteworthy that the National Assembly elections were conducted on 9th April, 2011 and the 15th Defendant did not alter the names of candidates already submitted.

(vii) The 5th to 14th Defendants were duly issued the Certificate of Return and consequently sworn in as they were, at all times material, the only duly nominated candidates in the elections which the 15th Defendant participated along with other political parties for the respective positions in the National Assembly.

(viii) In the absence of an Order of Court, it has been the practice of the 1st Defendant, which accords with the Constitution of the Political parties duly approved in line with the Constitution of the Federal Republic of Nigeria 1999 (as amended), to accept only the list of candidates presented by the National Secretariat of political parties, and then treat those listed therein as candidates for the elections. (Underlining supplied for emphasis).

5. Hereto delivered and marked exhibits are-

(i) Letter dated 14th January, 2011 addressed to 1st Defendant by the 15th Defendant forwarding the names of 5th to 14th Defendants as its candidates as EXHIBIT INEC 1.

(ii) Acknowledgement of Receipt of Form CF.001 from the 5th to 14th Defendants by 1st Defendant as EXHIBITS INEC 2 (i) to (x).”

In the determination of defendants’ preliminary objection the trial court adopted the crucial issue that has arisen thus:-

“Whether considering the entire circumstances of this suit, this Court has jurisdiction to entertain it and grant the reliefs claimed.”

The court postulated firstly, see page 1289 of Vol. 2 of the record of appeal, as follows:-

“Both Applicants and Plaintiffs apparently are in tune on the issue that when jurisdiction of a court to hear a matter is challenged, the relevant process to be considered is the plaintiffs claim as stated in whatever originating process by which he presented his claim to the court…Therefore, in the determination of the Notice of preliminary objection filed by the Applicants whereby they challenged the jurisdiction of this Court to hear the plaintiffs claim, it is the claim presented by the plaintiffs vide their originating summons and affidavit in support that will he examined via a magnifying glass and no other document.”

(Underlining supplied for emphasis).

The court’s examination of the plaintiffs claim in the foregoing manner led to its decision, see page 1300 of Vol. 2 of the record of appeal, that by virtue of Section 251 (1)(r) of the 1999 Constitution as amended, it has exclusive jurisdiction to hear and determine the suit which questions the validity of the executive or administrative action or decision of the 1st defendant, INEC, being an agency of the Federal Government.

Before finally determining the crucial issue, the court further held at page 1317 of Vol. II of the record of appeal thus:-

“Clearly, from the foregoing findings and decisions concerning the subject matter of the suit which the plaintiffs presented to this Court for adjudication, the plaintiffs have not asked the court to look into or decide whether they i.e. the Plaintiffs or Applicants are the candidates which the 15th Defendant sponsored for the General Election.”

Quite naturally, the court resolved the issue against the applicants and in favour of the plaintiffs.

In deciding whether or not the plaintiffs have the locus standi to institute their claim, the trial court held at pages 1329-1330 of Vol II of the record of appeal inter-alia thus:-

“The Applicants also contended that, the Plaintiffs purported interest in the seats to which this suit relates had been taken away by virtue of the Court of Appeal decision in Appeal No CA/A/133/2011 and the Supreme Court decision in Lado V. CPC as well as sections 65 (2) (b) and 68(1) (b) of the Constitution. Referred to Yesufu V. Govt. of Edo State (2001) NSCQR (pt 11) 675 at 688.

In my humble opinion, the effect of the decisions of the Court of Appeal and Supreme Court in Lado V. CPC (supra) on the Plaintiffs’ alleged interests in the seats to which the suit relates is not necessary for the determination of the suit which the Plaintiffs brought to Court for determination.

Section 65(2)(b) of the Constitution which the Applicants alleged removed from the Plaintiffs’ locus standi to bring this action provides thus:-

’65(2) A person shall be qualified for election under subsection (1) of this section if –

(b) he is a member of a political party and is sponsored by that party.’

In my humble opinion, this provision is not necessary for the determination of the locus standi of the Plaintiffs to institute the action they brought to Court for determination. As I held earlier in this Ruling, the question of sponsoring and nomination of the Plaintiffs by the 15th Defendant is not relevant for the determination of the suit the Plaintiffs brought to Court for adjudication.”

Inspite of the pleadings of parties as contained in their respective affidavits, before affirming the trial court’s foregoing findings, the lower court per Eko JCA, who delivered the lead judgment, at page 1737 of Vol. III of the record of Appeal, firstly circumscribed what the 1st-10th respondents claim before the trial court is thus:-

“It is apparent from reliefs 1, 2, 3, and 4 claimed by the Plaintiffs/1st – 10th Respondents that the suit seeks the judicial review of the powers of the 1st Defendant/11th Defendant, Independent National Electoral Commission (INEC), to allegedly withdraw the Certificates of Return issued to the Plaintiffs/1st – 10th Respondents after it had conducted the elections, declared the results, made returns and thereafter issued certificates or return to each of the Plaintiffs. In the suit the Plaintiffs seem to suggest that without a court order validly made by a court of competent jurisdiction INEC has no powers, in law, to withdraw a certificate of return it issued to each or any of the Plaintiffs after it had validly conducted an election and made a return therefrom. The plaintiffs in the originating summons and the supporting affidavit over that after the election and their returns, their elections were unsuccessfully contested at the National Assembly and State House of Assembly Election Tribunal and the Court of Appeal; and that their returns each, remain inviolate thereafter.”

The court also summarized the position of the 1st defendant, INEC, from its counter-affidavit at the same page of Vol. III of the record of appeal as follows:-

“The position of INEC, the 1st Defendant in the suit, is that the Plaintiffs were never on the ballot in the disputed elections and that the only candidates of the Congress for Progressive Change (CPC) were the 5th-4th Defendants/Appellants……” (Underlining supplied for emphasis).

The court stated the case of the appellants as well at page 1739 of Vol. III of the record of appeal thus:-

“The Appellants, as 5th-14th Defendants, filed a joint counter-affidavit with the 15th Defendant.

It is at pages 701-718 of the record. They aver therein that they were the valid and authentic candidates of the CPC, the political party that won all the seats in the disputed elections, that the Plaintiffs/1st – 10th Respondents were not issued valid Certificates of Return by INEC, 1st Defendant and that:-

‘The 1st Defendant merely issued the 5th – 14th Defendants their Certificates of Return in validation of the mandate won by them and their sponsoring political party, the 5th defendant herein in the 2011 general election.”

Notwithstanding its foregoing findings as to the positions of the 1st Defendant, INEC, and the Appellants, in affirming the trial court’s decision that it has jurisdiction to hear and determine 1st – 10th Respondents suit, the lower court, see page 1742 of Vol. III of the record of appeal, held that the principle which determines the question of jurisdiction is thus:-

“The law is settled that it is the claim of the plaintiff that determines the jurisdiction of the trial court see Emeka V. Okadigbo (2012) 18 NWLR (pt 1331) 55 at 89 and 101; Adeyemi V. Opeyori (1976) 6-10 SC 3; Anya V. Iyayi (1993) 7 NWLR (Pt 305) 290; Anigboro V. Sea Trucks Nig Ltd (1995) 6 NWLR (Pt 339) 35 and Onuorah V. Okeke (2005) 10 NWLR (pt 932) 40.”

(Underlining supplied for emphasis).

The court proceeded as follows:-

“I have read the claims of the plaintiffs/1st – 10th Respondents and the fact on which the questions posed and the reliefs sought are predicated. I had earlier set than out in this judgment….. The 11th – 14th Respondents, who were the original 1st – 4th Defendants, clearly answer to the description of ‘the Federal Government or any of its agencies’ whose ‘executive or administrative actions or decisions’ were being questioned by the 1st – 10th Respondents as Plaintiffs, at the Federal High Court, Reading Section 6(6) and 251 (1)(r) of the Constitution together. I am of the firm view that the jurisdiction of the Federal High Court to judicially review ‘executive or administrative decisions or action’ of the Federal Government or any of its agencies is undeniable.

These appellants, who have avoided commenting on these Constitutional provisions vesting in the Federal High Court jurisdiction to undertake judicial review of the administrative actions or decisions of the 11th – 14th Respondents, are not on any firm grounds in their insistence to the contrary.” (Underlining mine for emphasis).

And concluded its decision at pages 1754-1755 of Vol. 3 of the record of Appeal thus:-

“The court below has jurisdiction in the matter of the judicial review of the action or decision of INEC, who after issuing Certificate of Return to the 1st – 10th Respondents who were actually candidates at elections INEC conducted in their respective constituencies, purported to withdraw, cancel and nullify the said Certificates of Return without any order of a court or tribunal of competent jurisdiction.

The court also has jurisdiction in the matter of the Certificates of Return issued to the Appellants by INEC who were not candidates at the elections conducted by INEC and without order of court or tribunal established by law. Ditto for 12th – 14th Respondent giving effect to the Certificates of Return issued to the Appellants which Certificates of Return are invalid in law.