AZEEZ & ORS V. ADUKE & ANOR (2018)

Background

The appellants, suing for themselves and on behalf of the electorate of Oyo Central Senatorial District, commenced proceedings at the Federal High Court, Abuja, by originating summons. Their principal complaint was that the first respondent, Monsurat Jumoke Aduke, was not qualified to contest or occupy the senatorial seat because she had allegedly acquired British citizenship and sworn an oath of allegiance to the United Kingdom. The appellants sought declarations that her election and return were unconstitutional, that the senatorial seat was vacant, and that INEC should withdraw the certificate of return issued to her.

The respondents filed preliminary objections challenging the competence of the action. They argued, among other things, that the appellants lacked locus standi, that the Federal High Court lacked jurisdiction over a post-election dispute, and that the suit was barred by res judicata or issue estoppel because the same question had previously been raised in an election petition. The trial court upheld the objections and dismissed the action. It also held, on the merits, that the first respondent’s Nigerian citizenship by birth and alleged dual citizenship did not disqualify her from election to the National Assembly. The appellants appealed to the Court of Appeal.

Issues

1. Whether the trial court correctly held that the appellants’ action was barred by res judicata or estoppel by judgment.
2. Whether a Nigerian citizen by birth who also possesses foreign citizenship or has sworn allegiance to another country is disqualified from contesting election to the National Assembly.
3. Whether registered voters and members of the electorate had locus standi to challenge the first respondent’s qualification and return outside the statutory election-petition procedure.
4. Whether the trial court was right to dismiss the declaratory and consequential reliefs sought by the appellants.

Ratio Decidendi

The Court of Appeal held that issues for determination must arise from the grounds of appeal. A ground from which no issue is distilled is treated as abandoned and may be struck out. However, in this case, the appellants’ issues were sufficiently connected to the relevant grounds, and the respondents’ preliminary objections on that point were rejected.

On estoppel, the court explained that res judicata prevents parties or their privies from re-litigating a cause of action or issue already finally determined by a court of competent jurisdiction. A party relying on estoppel by judgment must establish the identity of the subject matter, claim or dispute, parties or privies, a valid and final prior decision, and the competence of the earlier court. The requirements must be proved and cannot simply be presumed. The court distinguished res judicata, which generally concerns the cause of action, from issue estoppel, which operates where a particular issue has already been conclusively determined in earlier proceedings.

The court found that the issue of the first respondent’s alleged dual citizenship had been directly raised in the earlier election petition. It further accepted unchallenged affidavit evidence showing that the appellants were members or agents of the Accord Party, whose candidate had participated in the earlier proceedings. They therefore had the same interest as the parties to that litigation and qualified as privies for the purpose of issue estoppel. The appellants were consequently barred from reopening the issue.

Court Findings

In interpreting sections 28 and 66(1)(a) of the 1999 Constitution, the court held that the acquisition of foreign citizenship does not, by itself, disqualify a Nigerian citizen by birth from contesting election to the Senate or House of Representatives. Section 28 concerns forfeiture of Nigerian citizenship by a person who is not a Nigerian citizen by birth and subsequently acquires or retains another nationality. Section 66(1)(a), read together with section 28, does not prohibit a Nigerian citizen by birth from holding dual citizenship.

The court relied on Ogbeide v. Osula, holding that the person automatically disqualified under the constitutional provisions is a Nigerian citizen by registration or naturalisation who subsequently acquires the citizenship of another country or swears allegiance to that country. Since the first respondent was accepted to be Nigerian by birth, her alleged British citizenship did not, without more, invalidate her qualification for the senatorial election.

The court also held that locus standi is the legal right to appear in court or bring a particular action. In election matters, that right is defined by statute. Under sections 133(1) and 137(1)(a)-(b) of the Electoral Act 2010, an election or return may be challenged only by an election petition, and such a petition may be presented by a candidate or a political party that participated in the election. The appellants, as registered voters or members of the electorate, were not persons authorised by those provisions to challenge the first respondent’s qualification or return. Such a challenge belonged before the appropriate election tribunal and had to be brought by a statutorily recognised petitioner.

Conclusion

The Court of Appeal dismissed the appeal and affirmed the judgment of the Federal High Court delivered on 2017-01-25. It held that the appellants’ claims were barred by issue estoppel, that they lacked the statutory standing to commence the post-election challenge, and that the Federal High Court lacked jurisdiction to grant the reliefs sought. No order as to costs was made.

Significance

The decision reinforces the need to use the specialised election-petition procedure when questioning an election or a candidate’s constitutional qualification. It also confirms that Nigerian citizenship by birth is not forfeited merely because the person holds another nationality, and that dual citizenship alone is not a disqualification from membership of the National Assembly. The judgment further illustrates the importance of distinguishing res judicata from issue estoppel, properly pleading estoppel, proving the relationship of privies, and respecting the constitutional limits of a court’s jurisdiction.