AKPAMGBO-OKADIGBO V. CHIDI (2015)

Background

This appeal arose from a dispute over the Peoples’ Democratic Party (PDP) primaries and the subsequent 2011 elections into the Anambra State House of Assembly. The 1st to 5th respondents claimed that they had won primaries conducted or recognised by the National Working Committee of the PDP. The appellants, however, emerged from rival primaries conducted by the Anambra State executive structure of the party. Following interim proceedings in a State High Court, the Independent National Electoral Commission (INEC) accepted the appellants as candidates for several constituencies, including Ekwusigo, Oyi, Anambra East, Dunukofia and Awka North.

The respondents commenced an earlier Federal High Court action concerning the proper PDP candidates. While that dispute was pending, the election was conducted and the appellants were declared winners. INEC consequently issued certificates of return to them. The respondents then filed Suit No. FHC/ABJ/CS/574/2011 at the Federal High Court, Abuja, by way of judicial review. They sought prohibition to prevent the issue of certificates of return, certiorari to quash certificates already issued, and mandamus compelling INEC to issue certificates to them instead.

The appellants raised a preliminary objection, arguing that the action was a post-election challenge which could only be brought before an election petition tribunal. The Federal High Court upheld the objection and declined jurisdiction. The Court of Appeal reversed that decision, assumed jurisdiction and granted reliefs in favour of the respondents. The appellants appealed to the Supreme Court, while INEC and the Clerk of the Anambra State House of Assembly filed cross-appeals.

Issues

1. Whether the Federal High Court had jurisdiction to entertain a suit filed approximately 50 days after the election and challenging the return of the appellants.
2. Whether the action remained a pre-election matter merely because its factual origin lay in the nomination and sponsorship of candidates.
3. Whether the respondents could use prerogative orders of prohibition, certiorari and mandamus to challenge the issue of electoral certificates of return.
4. Whether the respondents’ grounds of appeal at the Court of Appeal were incompetent for failing to comply with Order 6, rule 2(2) and (3) of the Court of Appeal Rules, 2011.

Ratio Decidendi

The Supreme Court held that the respondents’ claim, properly examined, was a post-election challenge. Jurisdiction is determined principally by the plaintiff’s claim and, where proceedings are commenced by originating motion, by the supporting affidavit. The substance of the reliefs, rather than the labels attached to them, determines the legal character of an action.

Although nomination, substitution and sponsorship disputes are ordinarily pre-election matters, they must be brought before the election. Once the election has taken place, results have been declared and certificates of return issued, a complaint seeking to displace the declared winners becomes an election matter. Under section 285(1)(b) of the 1999 Constitution and section 133(1) of the Electoral Act 2010 (as amended), such a challenge must be presented by election petition before the appropriate election tribunal. Section 285(5) further requires an election petition to be filed within 21 days after declaration of the result. The respondents’ action, filed about 50 days after the election, was therefore incompetent.

The Court also reaffirmed that section 87(9) of the Electoral Act provides a narrow avenue for an aspirant to challenge non-compliance in the selection or nomination of a candidate. That remedy is required to be pursued before the election. It cannot be revived after the election where the claimant seeks to be declared the successful candidate or to invalidate the return of another person, except insofar as the complaint may properly constitute a ground in an election petition.

Court Findings

The Court found that the reliefs seeking to restrain INEC from issuing certificates of return, quash certificates already issued and compel their issuance to the respondents directly questioned the election and return of the appellants. INEC issued the certificates in an administrative capacity, not as a tribunal or body exercising judicial or quasi-judicial powers. Consequently, prerogative writs such as mandamus, prohibition and certiorari were not an appropriate procedure for commencing this election-related claim.

The respondents’ argument that the later action was merely a continuation of an earlier pre-election suit also failed. The Supreme Court had, in the related appeal, set aside the judgment in the earlier suit for want of jurisdiction. A proceeding declared a nullity is treated in law as never having existed; its orders cannot provide a foundation for a subsequent action. As the Court explained, one cannot continue with proceedings that have been extinguished.

The Federal High Court’s lack of jurisdiction was a fundamental defect. Applying the principle in Madukolu v. Nkemdilim, a court is competent only where the subject matter is within its jurisdiction, the proceedings are initiated by due process and all conditions precedent have been fulfilled. An appellate court cannot assume jurisdiction to determine a matter which the trial court itself was incompetent to entertain.

On the competence of the respondents’ grounds of appeal, the lead judgment took a more liberal approach. Although the particulars were unwieldy, the appellants were not misled and there had been substantial compliance with the rules. The Court therefore declined to strike out the grounds on technical grounds, emphasising the judicial duty to do substantial justice. Other members of the panel expressed a stricter view, considering the grounds defective, but the appeal succeeded independently on jurisdiction.

Conclusion

The Supreme Court allowed the appellants’ appeal, set aside the judgment of the Court of Appeal and struck out Suit No. FHC/ABJ/CS/574/2011 as incompetent. The cross-appeals raised substantially the same jurisdictional questions and were disposed of in accordance with the decision in the main appeal. The parties were ordered to bear their own costs.

Significance

The decision is important in Nigerian electoral jurisprudence because it prevents litigants from disguising a post-election challenge as a pre-election dispute or judicial-review proceeding. It confirms the exclusive role of election tribunals in determining whether a person was validly elected and reinforces the strict statutory time limit for election petitions. It also demonstrates that courts will examine the practical effect of the reliefs sought, rather than rely on the form or terminology used by a claimant.