Senator Effiong Bob V. Chief Imeh Albert Akpan & Ors. (2007)
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MUHAMMAD, J.C.A.
The applicants herein i.e. Chief Imeh Albert Akpan and Otu Ita Toyo took out an originating summons before the Federal High Court, Abuja for the determination of the following questions:-
“1. Whether having regard to the clear provisions of Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff is qualified to contest election into the Senate of the Federal Republic of Nigeria.
- Whether as a member of the People Democratic Party and having contested the primaries of the said party seeking nominations the party’s candidate for the April 2007 general elections in respect of Akwa Ibom North East Senatorial district, and having polled over 60% of the total votes cast at the said primaries which led to his being declared as the winner of the said primary election and consequently issued with a certificate of return by the peoples party with a further correspondence from the Peoples Democratic Party directing the 1st and 2nd defendants to list the 1st plaintiff as Its candidate for the National Assembly Elections in respect of Akwa Ibom North East Senatorial District Constituency, the 1st defendant is at liberty not to enforce the directive of the party to wit: listing him i.e. the 1st plaintiff as the party’s senatorial candidate in Akwa Ibom North East for the April, 2007 General Elections, having regard to the relevant provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
- Whether in the face of the several representations/correspondences made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the name of the 1st plaintiff be placed on the list of the National Assembly candidates with the 1st defendant, as the Peoples Democratic Party’s candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Elections, the 1st defendant is at liberty to decline the enforcement of such directives, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
- Whether in the absence of any positive explanation from the 1st defendant, having regards to the several representations made by the Peoples Democratic Party on behalf of the 1st plaintiff’s name be placed on the list of National Assembly candidates, the 1st defendant is at liberty to remove the name of the 1st plaintiff unilaterally after having screened him and verified his credentials, having regards to the relevant provisions of the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
- Whether the omission, substitution or removal of the name of the 1st plaintiff by the 1st defendant from the list of National Assembly candidates dated 15th March, 2007 to contest election into the senate of the Federal Republic of Nigeria, particularly as representing Akwa Ibom North Senatorial District in the April, 2007 General Elections does not constitute a gross violation of the 1st plaintiff’s constitutional right to fair hearing, and by extension his right to contest election into the Senate of the Federal Republic of Nigeria as a Nigerian citizen, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
- Whether in the light of the fact that the Peoples Democratic Party had submitted the name of the 1st plaintiff for substitution with the name of the 3rd defendant by several correspondences, the 1st and 2nd defendant can validly decline such substitution, having regard to the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
- Whether in view of the clear provisions of the Electoral Act, 2006, the 1st and 2nd defendant are in a position to decline to act upon the representation of a political party vis-a-vis its choice of candidate to contest for an office in the April, 2007 General Elections, more so when the candidate is not otherwise disqualified.
In the light of the foregoing, and the answers there to the plaintiffs seek the following reliefs:
“1. A declaration that the omission of the name of the 1st plaintiff by the 1st and 2nd defendants in the list of candidates for National Assembly General Election dated 15th March, 2007 particularly as it affects Akwa Ibom North East Senatorial District constitutes a gross violation of the 1st plaintiff’s Constitutional rights.
- A declaration that the refusal of the 1st defendant to comply with the several directives issued by the 1st plaintiff’s political party i.e. peoples Democratic Party to the effect that the 1st plaintiff’s name be listed as its candidate for the Akwa Ibom North East Senatorial District in the April 2007 General Election constitutes a wrongful and unlawful removal/substitution or exchange of a validly nominated candidate i.e. the 1st plaintiff.
- A declaration that the inclusion of the 3rd defendant as the Peoples Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the forthcoming April, 2007 General Election is wrongful as it is against the position, wishes and aspirations of the Peoples Democratic Party.
- An order setting aside the inclusion of the name of the 3rd defendant in the list of the National Assembly candidates for the April 2007 General Election for Akwa Ibom North East Senatorial District.
- An order of mandatory injunction directing the 1st and 2nd defendants to forth with place the name of the 1st plaintiff on the list of candidates for the April 2007 National Assembly General Elections as the candidate representing the Peoples Democratic Party in Akwa Ibom North East Senatorial District in the said election.
- An order of perpetual injunction restraining the 1st and 2nd defendant from further removing the candidature of the 1st plaintiff as the candidate representing Akwa Ibom North East Senatorial District on the platform of the Peoples Democratic Party in the said election.
- An order of perpetual injunction restraining the 1st and 2nd defendants from placing the name of the 3rd defendant on the ballot for the forth coming election into the National Assembly as the candidate representing Akwa Ibom North East constituency on the platform of the Peoples Democratic Party in the said election.
After considering the affidavit evidence and the written addresses filed by the parties, the learned trial judge held:
“Consequently, I find and hold that the name of the 1st plaintiff was properly substituted with, in place of the 3rd Defendant.
Where a substitute is properly made by the authority of all the recent cases the 1st Defendant has only one duty and that is to comply. In this light, the 1st Defendant is hereby directed to include the name of the 1st plaintiff as the candidate of the party in place of that of the defendant.
I therefore declare as per relief’s 1, 2, & 3 and order as per reliefs 4, 5, 6, & 7.”
Aggrieved by this decision, the 3rd defendant, (hereinafter called the “appellant”) appealed to this court. The Notice of Appeal contained two grounds of appeal. Before the appeal could be heard, the applicants filed an application praying for the following orders:-
“1. An order striking out the Notice of Appeal in this appeal as the court now lacks the jurisdiction to entertain all the grounds of appeal contain therein.
- And for such further order(s) as this honourable court may deem fit to make in the circumstances.”
The grounds of the application are: –
“1. The jurisdiction of the court of Appeal to entertain this appeal has now been ousted by the combined provisions of section 285(1)(a) of the 1999 Constitution, sections 140 and 164 of the Electoral Act, 2006 as well as section 1 to the First Schedule of the Electoral Act.
- The issues before the court are now academic. Indeed there is no live issue validly before this court.
PARTICULARS
(a) the election into the Akwa Ibom north East Senatorial District seat in the National Assembly took place on the 21st April, 2007.
(b) the result of the said Election had been declared by INEC.
(c) the Governors and legislative Houses Tribunal have been constituted to entertain any question or dispute arising from the said election.
(d) the issue as to who was the candidate at the election is stale since the election had been concluded and the result declared and any question therefrom, falls for the Election Tribunal determination.
(e) Accordingly, only the Election Petition Tribunal call entertain any dispute arising from any election that was held on the 21st April 2007 pursuant to the provisions of the 1999 Constitution and the Electoral Act, 2006.
- the issue before the court has moved from a pre-election to a post election proceedings of which only the Election Tribunal has the jurisdiction to entertain same”.
The application is supported by a six paragraphs affidavit. The respondents opposed the application and filed counter-affidavits. Parties were ordered to submit written addresses, which they duly complied with.
At the hearing of the application, Solomon Umoh, learned counsel for the applicants adopted and relied upon his written address. He referred to A.-G., Federation v. ANPP (2003) 18 NWLR (Pt.851) 182 at 215 and urged us to strike out the appeal.
He also urged us to strike out the further and better affidavit filed by the 3rd and 4th respondents because it was filed within time and was filed after argument commenced. We were also urged to strike out their written address because it was filed after the commencement of argument and no leave of this court was sought to do so. In support, he referred to Raymond v. Juiadu (1986) 5 NWLR (39) 103 and N.N.B. Plc v. Sanni (2001) 7 NWLR (Pt. 713) 544 at 550.
Chief Assam, learned senior counsel for the appellant/respondent submitted that he relied on their written address and further submitted that the issue in this matter is not liable to be tried by any tribunal. He also submitted that they were not contesting the election or its result. He said the issue in dispute is whether or not PDP could substitute its candidate. He urged us to dismiss the application.
Mrs. Osagiede, learned counsel for the 3rd and 4th respondents adopted their written address and urged the court to refuse the application.
The applicant’s contention is that since elections were held and the results declared, the matter is now academic and this court lacks jurisdiction to entertain the matter. It is trite law that it is the plaintiff’s claim that determines the jurisdiction of a court. See Adeyemi v. Opeyori (1976)9-10 SC 31; Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659 and APC Ltd v. NDIC (NUB Ltd.) (2006) 15 NWLR (Pt. 1002) 404.
Also in determining jurisdiction of a court, the enabling law vesting jurisdiction in the court has to be examined in the light of the relief sought by the plaintiff. Where the relief sought falls within the jurisdiction of the court, the court must assume jurisdiction. The court must reject jurisdiction if the relief sought is outside the jurisdiction of the court as portrayed by the facts. See. Babale v. Abdulkadir(1993) 3 NWLR (Pt. 281) 253 and Trade Bank v. Benilux (Nig.) Ltd. (2003) 9 NWLR (Pt. 825) 416.
I have carefully considered the affidavit evidence adduced by all the parties and their written addresses. The real issue between the parties is that who is the candidate duly nominated and presented for election by PDP for election into the National Assembly to represent Akwa Ibom North East Senatorial District and whether there was a valid substitution of the respondent for the appellant.
This is clearly a pre-election matter. It is about nomination of a candidate for an election by a political party. This is not a matter for Election Tribunals. The Election Tribunals have no jurisdiction to entertain disputes over primary elections within the political party for selection or nomination of candidates to contest election on the platform of a political party. See N.E.C. v. N.R.C. (1993) 1 NWLR (Pt. 267) 120; Doukpolagha v. George (1992) 4 NWLR (Pt. 236) 444. Since this is a pre-election matter and the appellant is not challenging the election which took place on 21st April, 2007, this court has jurisdiction to entertain the matter. See the case of Rt. Hon. Chibuike Rotimi Amaechi v. INEC & ORS unreported Suit No SC.74/2007 delivered on 11th May 2007 now reported in (2007) 18 NWLR (Pt. 1065) 42. Where in a very similar circumstance, the Supreme Court held that this court has jurisdiction to hear pre-election matters. It is the contention of the applicant that since election has been held, the matter is now academic. A suit does not become academic simply because the thing that gave rise to the action is concluded. See: Plateau State v. A.-G., Federation 25 NSCQR 179; (2006) 3 NWLR (Pt. 967) 419, paras. C-G
Where Tobi JSC Stated: –
“….A suit does not necessarily become spent merely because it was heard after the act or conduct which gave rise to the action. It is clear from the case file that the action was filed on June 24, 2004, about thirty-six days after the declaration of the state of emergency in the state. That the matter was not hard until the expiration of emergence is not the fault of the plaintiffs and it will be improper for this court to throw out the suit on that ground. That will be doing injustice to the plaintiffs and I am not prepared to do injustice to them……..
A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity…
In the circumstance, I hold that this court has jurisdiction to hear and determine this appeal. It therefore follows that the application lacks merit and is dismissed.
No order as to costs.
Other Citations: (2007)LCN/2462(CA)
