From Godwin Tsa, Abuja

The Kano division of the Federal High Court on Thursday May 18,    gave a controversial judgment declaring votes credited to candidates of the Labour Party(LP) across the 36 States and the Federal Capital Territory (FCT) in the last general elections as wasted votes.

The judgment issued by Justice Mohammed Nasir Yunusa, affects all Labour Party candidates in Kano and Abia States, including the Governor-elect, Dr. Alex Otti.

The judge agreed with the plaintiff that the emergence of the Labour Party candidates in Kano and Abia States was not in compliance with the provisions of the Electoral Act, 2023.

Justice Yunusa however, declined to set aside the certificate of return issued to the affected Labour Party candidates who emerged victorious in the general election.

In the case of candidates of the party in Abia State, the Yobe State judge refrained from making orders against them saying: “the candidates that participated in the election in Abia State are not parties before this court as such the court lacks the jurisdiction to make an order for the issuance of certificate of return to them. They are however at liberty to seek redress in the appropriate division of the court.”

Justice Yunusa predicated his decision on the ground that a party that has not complied with the provisions of section 77 (2) (3) of the Electoral Act, 2022, cannot be said to have candidates in all elections and cannot be declared the winner of the election. “This being so, the votes credited to alleged candidates of Labour Party are wasted votes,” Justice Yunusa declared.

The plaintiff, one Ibrahim Haruna Ibrahim had in his suit marked: FHC/KN/CS/107/2023, complained that the Labour Party, failed to comply with the provisions of section 77 (3) of the Electoral Act, 2023, by not submitting the register of its members to the Independent National Electoral Commission (INEC) at least 30 days before it conducted its primaries for the selection of candidates that participated in the 2023 general election.

The plaintiff who listed Labour Party and INEC as the only defendants to the suit argued that the action of the party grossly breached the said provisions of section 77 (3) of the Act and therefore renders the purported primary election of the party in Kano State and the rest of the 35 states and the FCT, null and void and of no effect.

He equally contended that the fundamentally flawed primary election cannot produce a qualified candidate that participated in the general election and that the votes cast for all the candidates of the Labour Party are wasted votes and court should set aside the nomination and participation of all Labour candidates.

Panic mood

The impact of the judgment shook the political landscape particularly its sweeping declarations against all elected candidates of the Labour Party across the 36 states of the federation and the FCT, including Alex Otti, the governor -elect of Abia State and all elected representatives of the party to the national assembly.

Indeed, the inclusion of Abia State in the judgment charged the political atmosphere given the fact that the Governor-elect of the State, Dr. Alex Otti, is of the Labour Party.

The state was immediately thrown into panic mood particularly from the camp of the Labour Party following the judgment.

Both the National and State chapters of the party reacted to the judgment in quick succession describing it as an aberration.

A critical analysis of the judgment has raised some questions especially as regards the jurisdiction of the court in granting the declaratory reliefs contained therein.

Jurisdiction

Jurisdiction is the authority which a court retains to hear a case presented before it. It is the foundation of all actions in court, the presence of which validates the commencement, hearing and judgment of any trial.

In fact, it is trite law that a trial whether civil or criminal without jurisdiction is a nullity. A court that lacks jurisdiction to entertain a suit is incompetent to pronounce any judgment or ruling in respect of the action before it. Where a court adjudicates on a matter, whether civil or criminal, that it does not have jurisdiction, any judgment or ruling delivered in respect of same will be set aside as it is null, void and of no effect.

I dare say, with respect, that Justice Yunusa, a 1987 law graduate of the University of Maidugari, sitting in far away Kano division of the court, acted beyond his territorial jurisdiction by annulling and declaring votes of Labour party candidates in Abia States as wasted votes.

Besides, after declaring the votes of the party candidates in Abia State as wasted votes, the judge contradicted himself when he held “the candidates that participated in the election in Abia State are not parties before this court, as such, the court lacks jurisdiction to make an order for the issuance of certificate of return to them. They are however, at liberty to seek redress in the appropriate division of the court.

Yes,  paragraph(8) (1) of the 2022 Practice Direction (pre-election matters) issued by the Chief Judge of the Federal High Court, Justice John Tsoho frowned against forum shopping by directing that: “All suits wherein the cause of action arose in a judicial division and relief seeks a declaration or to compel or restrain person(s), natural or legal within that judicial division, with no consequences, outside it, shall be filed, received or heard only within that judicial division.”

From the above paragraph of the Practice Direction, it is clear that the Kano division of the Federal High Court is not the appropriate division of the court to adjudicate on pre-election matters that arose from Abia State, rather it is the Abia division of the court or Abuja that has the requisite jurisdiction to entertain such matters, as provided by the priviso under paragraph 8 (1) above.

Another dimension of the lack of jurisdiction is that the candidates of the party from Abia State were parties before the court. It is the principle of law that where necessary parties are not before the court in a matter, the court has no jurisdiction to adjudicate on it. In fact, the court is empowered by law to sou motu (on its own) ask that necessary parties be joined in the matter, otherwise, any order or action taken against such parties is null and void, because ‘Equity will not act in Vain”. The legal maxim is lex non cogit ad impossibilla.

Limitation of time for Pre-election matters in court

Another area that robbed the Kano division of the Federal High Court of its jurisdiction with respect to the LP candidates in Abia State, especially as it relates to the Governor-elect, Alex Otti is the limitation clause.

Pre- election cases are regulated by status and section 285 (9) of the 1999 constitution sets a time limit for commencement of pre- election matters.

It provides that “Notwithstanding anything to the contrary in this Constitution, any pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained in the suit.”

The application of the above Constitutional provision has resulted in the dismissal or striking out of many cases in court for being statute barred, (even though there is a reasonable, genuine and compassionate cause of action), where the matters are filed outside the prescribed time limit of 14 days. Hence, it is very critical for pre-election matters to be filed within 14 days of the accrual of the cause of action, otherwise, no matter how compelling or compassionate the case of the litigant is, the matter will be statute barred and struck out or dismissed by the Court.

The court in Kano should not have entertained the suit given that Mr Otti emerged as the candidate of the LP in June, while the suit was filed on May 11, months after the LP primary in Abia.

The suit was filed outside the timeframe allowed by law for pre-election matters, he said.

“Section 285 of the (1999) Constitution states that all pre-election matters must be filed within 14 days of the event. If the case filed by Ibrahim Haruna-Ibrahim at the Federal High Court in Kano was/is a pre-election matter, it should have been filed within 14 days of the primaries.

In conclusion, it is clear that the Federal High Court in Kano lacked the jurisdiction to entertain the case for many reasons, “principally because the case was statute-barred.

A court in Kano cannot nullify primaries outside Kano. The jurisdiction of the Federal High Court cannot be invoked this way.

Therefore, nullifying primaries of candidates, and even declaring their votes as wasted in this circumstance, goes against all established principles of law and fair hearing.

Justice Yunusa conceded to this when he admitted lacking jurisdiction over the candidates not before him by refusing to grant the petitioner’s 10th relief and, at the same time, declaring the LP primaries in Abia and votes cast for the party as wasted votes.

Isn’t this a clear contradiction? If there’s no territorial jurisdiction for the court to grant relief 10, on what basis did the court void the Abia primaries?