POWER OF THE GENERAL PUBLIC TO SCREEN CANDIDATES AND RAISE OBJECTION AS TO QUALIFICATION UNDER THE ELECTORAL ACT

CASE TITLE: ABDUL-RAZAK & ANOR v. APC & ORS (2021) LPELR-53180(CA)

JUDGMENT DATE: 18TH FEBRUARY, 2021

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: UCHECHUKWU ONYEMENAM, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Pre-election Matters.

FACTS

The appeal is against the judgment of the Federal High Court Abuja Judicial Division, delivered on 14th December, 2020 by IJEOMA L. OJUKWU, J. in SUIT NO: FHC/ABJ/CS/758/2020.

The Appellants’ case was commenced via an Originating Summons filed on 10th July, 2020; at the Federal High Court Abuja Division seeking to disqualify the 3rd Respondent from participating in the Edo State Governorship election on the grounds that the 3rd Respondent deposed to false information in the 2020 INEC Affidavit Form EC-9. The suit was brought pursuant to Sections 6 (6), 186 and 187(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 31 (5) and (6) of the Electoral Act, 2010 (as amended) and Order 3 Rules 1, 6, 7, 8, 9 of the Federal High Court (Civil Procedure) Rules 2019. The Appellants’ case was that a person who gave false information on Oath is not a fit and proper person to contest an election.

​The Appellants also alleged that since the 3rd Respondent is not fit to contest by reason of the alleged false deposition, the 4th Respondent who has him as a running mate should also be declared unfit to contest.

The matter which was previously assigned to TAIWO O. TAIWO, J. was later reassigned to IJEOMA L. OJUKWU, J. The 1st, 3rd and 4th Respondents filed their Counter Affidavits to the Originating Summons. The 2nd Respondent did not file anything. The 3rd and 4th Respondents also filed preliminary objections. The objections were on the ground that the matter which is not a pre-election matter had become academic since it was not decided before the election. The Appellants equally argued that they were never served with the 3rd Respondent’s counter Affidavit to the originating summons.

The trial Court entered judgment in favour of the Respondents as follows:

“In sum, it is my humble but firm opinion as inspired by superior authorities that the instant suit has become academic in view of Section 31 (6) of Electoral Act, 2010 (as amended). The order which the Court is being invited to make, with due difference to the learned counsel for the plaintiffs F. N. Nwosu has become sterile, obsolete and of no effect. This case was alive and well at the time of embarkation into this journey, but it has become moribunden route its port of uncertain destination as are suit of the peculiar nature of this case. The Plaintiffs may wish to seek another avenue of redressing view of their allegations of false information. But as it concerns the present suit, this matter is spent and has become impotent. This Honourable Court has no jurisdiction to continue hearing. Both the preliminary objections canvassed by the 3rd and 4th Defendants succeed and each is upheld. Without further fanfare, the case of the Plaintiffs is struck out.”

Dissatisfied with the above judgment, the Appellants brought this appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:

1. Whether the lower Court breached the appellants’ right to fair hearing.

2. Whether the trial Court correctly held that the Appellants’ suit as constituted was not a pre-election matter by virtue of Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

3. Whether in view of Section 31 (6) of the Electoral Act, 2010 (as amended), the trial Court correctly held that the appellants’ suit had become academic and spent by reason that the Edo state governorship election had already been conducted wherein the 3rd and 4th Respondents herein who lost did not challenge the outcome of the election at the petition tribunal.”

DECISION/HELD

​In all, the appeal was partially allowed to the extent that the suit filed at the trial Court was held to be a pre-election matter and was not academic as at the time the trial Court wrongly held it had been robbed of its jurisdiction to continue to determine the same.

RATIOS:

• ELECTORAL MATTERS – QUALIFICATION/DISQUALIFICATION: Position of the law on the power of general public to screen candidates and raise objection as to qualification under the Electoral Act
• ELECTORAL MATTERS – PRE-ELECTION MATTERS: Meaning of pre-election matters; proper time to file pre-election matters and the effect of a pre-election matter filed out of time
• ELECTORAL MATTERS – PRE-ELECTION MATTERS: Instance(s) when a matter will be held to be a pre-election matter