T0P STORY: Abia Gov. Elect, Alex Otti Appeals Kano Court Judgement | SEE GROUNDS OF APPEAL
In the notice of Appeal: CA/KN/EP/02/2023), dated May 22, 2023, obtained by ALL FACTS NEWSPAPER, Otti through his legal counsel, Lateef Fagbemi & Co.,Temitope Chambers, expressed dissatisfaction over the Justice M. N. Yunusa J. ruling of Thursday, May 18, and as such are appealing the judgment on 10 grounds which include that;
GROUND ONE
The learned trial judge erred in law and acted without jurisdiction in granting the claim of the Plaintiff regarding the selection of candidate of the 1st Respondent, Labour Party when the issue relating to selection of candidate being a pre-election matter had become statute barred.
GROUND 2
The learned trial judge erred in law and acted without jurisdiction in proceeding to declare as null and void, the participation of the 1st Respondent and its candidate in Kano State and Abia State at the 25th February, 2023 and 18th March, 2023 general election respectively when there was no claim/relief to that effect, thereby changing the coloutation/character of the Plaintiff’s case.
GROUND 3
The learned trial court erred in law and acted without jurisdiction in holding thus:
“That the 1st Defendant has carried on with its activities in the selection of its candidates for the General election in a manner that is at variance with mandatory provisions of the Electoral Act, 2022 which renders its participation in the General Elections, 2023 in Kano State and Abia State as null and void.
Without appreciating that, Plaintiff lacked the locus standi to institute and seek such a relief.
GROUND 4
The learned trial judge erred in law and wrongly assumed jurisdiction over the claim of the Plaintiff which touches on an internal affairs of a political party.
GROUND FIVE
1) The learned trial judge erred in law in granting declaratory and injunctive reliefs against non-parties, who have acquired vested right, without joining them and thereby acted in excess of its jurisdiction and rendered the proceeding/judgment a nullity.
GROUND SIX
The learned trial judge erred in law in assuming jurisdiction over the claim of the Plaintiff as constituted, without appreciating the fact that all necessary parties against whom reliefs were sought, are not before the court, which error has impugned on the circumscribed jurisdiction of the court, thereby rendering the decision of the trial court a nullity.
GROUND SEVEN
2) The learned trial judge erred in law when his lordship granted the Plaintiff’s claim and held that 1st Defendant has carried on with the activities in the selection of its candidate for the general election in a manner that is at variance with the mandatory provision of the Electoral Act, 2022 which renders its participation in the general elections of 2023 in Kano and Abia States as null and void without considering and appreciating the overriding effect of sections 65, 66, 106, 107, 131, 137, 177 and 182 of the 1999 Constitution of the Federal Republic of Nigeria which had covered the field regarding the qualifying and disqualifying factors for participation in a general election and thereby came to a wrong conclusion which has occasioned a grave miscarriage of justice.
GROUND EIGHT
3) The learned trial judge erred in law when it assumed jurisdiction over the claim of the Plaintiff, as constituted, when on the face of the originating summons and the Defendants endorsed thereon, the Federal High Court Kano lacks the territorial jurisdiction to entertain and determine the claim and thereby came to a wrong decision which has occasioned a grave miscarriage of justice.
GROUND NINE
The learned trial judge erred in law in interpreting section 77(2)(3) of the Electoral Act, as a basis of disqualifying the 1st Respondent’s candidate for participating in the general election without due regard for the Appellate court’s decision in APM vs. INEC (UNREPORTED) APPEAL NO: CA/ABJ/CV/1414/2022 delivered on 8/2/2023 – which had earlier held that section 77 of the Electoral Act is not a ground for qualification or disqualification for an election and thereby came to a wrong conclusion/decision which has occasioned a grave miscarriage of justice.
GROUND TEN
The learned trial judge erred in law and acted without jurisdiction to void the victory and return of the candidates of the 1st Respondent at the general election of 25th February and 18th March, 2023 when it is not vested with jurisdiction to entertain Plaintiff’s claim which is a nullity.
On the other hand, Alex Otti is seeking some reliefs from the court of Appeal to;
i) An Order allowing the Appeal;
ii) An order striking out and/or dismissing the Plaintiff’s originating summons;
iii) An Order setting aside the decision of the Federal High Court, Kano; and
iv) Such further or other orders as this Honourable Court may deem fit in the circumstances in favour of the Appellant herein.
Recall that Justice M. N. Yunusa J. while giving judgement on Thursday, May 18, in a Suit filed by one Ibrahim Haruna Ibrahim (FHC/KN/CS/107/2023) seeking the disqualification of all elected candidates of Labour Party, declared that; the Labour Party has carried on with its activities in the selection of it’s candidates for the general election in a manner tat is at variance with mandatory provisions of the Electoral Act 2022 which renders its participation in the general election of 2023 in Kano state and the rest of the 35 states of the federation including FCT as null and void.
Following mixed reactions which trailed the said judgement, Justice Yunusua clarified that he did not nullify the election of Dr. Alex Otti, rather that of Kano state elected candidates.
READ THE FULL NOTICE OF APPEAL BELOW:
IN THE COURT OF APPEAL
HOLDEN AT KANO
APPEAL NO: ……………………….
SUIT NO: FHC/KN/CS/107/2023
BETWEEN
DR. ALEX CHIOMA OTTI – APPELLANT
AND
1)
IBRAHIM HARUNA IBRAHIM
2) LABOUR PARTY
3) INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION (INEC)
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision/part of the decision, more particularly stated in paragraph 2 of the Notice of Appeal, contained in the judgment of the Federal High Court, Kano, delivered on 18th May, 2023, Coram M. N. Yunusa J., in Suit No: FHC/KN/CS/107/2023, do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.
AND THE APPELLANT FURTHER state that the names and addresses of persons directly affected by the appeal are those set out in paragraph 5.
2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole judgment/decision, except where the findings are in favour of the Appellant.
3) GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law and acted without jurisdiction in granting the claim of the Plaintiff regarding the selection of candidate of the 1st Respondent, Labour Party when the issue relating to selection of candidate being a pre-election matter had become statute barred.
PARTICULARS
i) Selection of candidate of political party is a process undertaken through the primaries of political parties.
ii) A complaint relating to legality or otherwise of selection of candidate of a party for election is a pre-election matter;
iii) A pre-election matter can only be cognisable if filed within 14 days of occurrence of the fact/event which gave rise to the complaint.
iv) Plaintiffs action filed on 11th May, 2023 was not filed within the 14 days statutory period of filing a pre-election matter, thereby rendering the action statute barred and incompetent.
GROUND 2
The learned trial judge erred in law and acted without jurisdiction in proceeding to declare as null and void, the participation of the 1st Respondent and its candidate in Kano State and Abia State at the 25th February, 2023 and 18th March, 2023 general election respectively when there was no claim/relief to that effect, thereby changing the coloutation/character of the Plaintiff’s case.
PARTICULARS
i) The court is always bound by the relief/claim formulated by the Plaintiff;
ii) No court has the jurisdiction to grant what is not claim or change the character of the Plaintiff’s claim;
iii) Plaintiff by his claim never sought for any specific claim affecting the selection of Plaintiff’s candidate in Abia State;
iv) In all the claim before the court, Plaintiff never mentioned Abia State as a state affected by the complaint made by him; and
v) Trial judge wrongly stated Abia State as a state affected by the alleged breach of section 77(3) of the Electoral Act, 2022;
GROUND 3
The learned trial court erred in law and acted without jurisdiction in holding thus:
“That the 1st Defendant has carried on with its activities in the selection of its candidates for the General election in a manner that is at variance with mandatory provisions of the Electoral Act, 2022 which renders its participation in the General Elections, 2023 in Kano State and Abia State as null and void.
Without appreciating that, Plaintiff lacked the locus standi to institute and seek such a relief.
PARTICULARS
i) By section 84(14) of the Electoral Act, 2022 and section 285(14) of the 1999 Constitution, only a person who participated in the primary election of a political party can question the emergence of the candidate of the party;
ii) Plaintiff did not participate in the primaries elections conducted in Abia State and other states of the federation; and
iii) Having not participated in the primaries elections, conducted by the 1st Respondent in Abia State and all other states of the federation, Plaintiff lacked the locus standi to seek the reliefs he made to the court below.
GROUND 4
The learned trial judge erred in law and wrongly assumed jurisdiction over the claim of the Plaintiff which touches on an internal affairs of a political party.
PARTICULARS
i) The question of computation of names of members of a political party and the maintenance of membership register is an internal affairs of a political party; and
ii) Plaintiff’s case in so far as it is predicated on register of members of Labour Party (1st Respondent) is an intra-party affairs for which court lacks jurisdiction to look into
GROUND FIVE
1) The learned trial judge erred in law in granting declaratory and injunctive reliefs against non-parties, who have acquired vested right, without joining them and thereby acted in excess of its jurisdiction and rendered the proceeding/judgment a nullity.
PARTICULARS
i) By Plaintiff’s showing, candidates of the 1st Respondent (Labour Party) contested and won elections and were issued with certificate of returns;
ii) The success of candidates of the 1st Respondent who had been issued with certificates of return created a vested right in favour of each of the candidates of the 1st Respondent;
iii) None of the candidates of the 1st Respondent who won election and issued with certificate of return was made a party to the proceeding;
iv) Plaintiff’s claim seeking to void the success of candidates of the 1st Respondent’s candidate is incompetent for failure to make the said candidates parties to the proceeding;
v) Trial judge acted without jurisdiction in granting the claim of the Plaintiff which affected the interest of the successful candidates of the 1st Respondent who were not made parties to the proceeding; and
vi) The order of the trial judge voiding the votes of the candidates of the 1st Respondent as wasted votes, without joining the said candidates as parties to the proceeding is a nullity.
GROUND SIX
The learned trial judge erred in law in assuming jurisdiction over the claim of the Plaintiff as constituted, without appreciating the fact that all necessary parties against whom reliefs were sought, are not before the court, which error has impugned on the circumscribed jurisdiction of the court, thereby rendering the decision of the trial court a nullity.
PARTICULARS
i) Necessary parties must be present before the court to enable the court exercise jurisdiction on the matter before it;
ii) Failure to joinder the Appellant, against whom positive orders were granted and/or made; rendered the entire proceedings incompetent;
iii) In the absence of necessary parties the court lacks jurisdiction to adjudicate on the case; and
iv) The decision has occasioned a grave miscarriage of justice
GROUND SEVEN
2) The learned trial judge erred in law when his lordship granted the Plaintiff’s claim and held that 1st Defendant has carried on with the activities in the selection of its candidate for the general election in a manner that is at variance with the mandatory provision of the Electoral Act, 2022 which renders its participation in the general elections of 2023 in Kano and Abia States as null and void without considering and appreciating the overriding effect of sections 65, 66, 106, 107, 131, 137, 177 and 182 of the 1999 Constitution of the Federal Republic of Nigeria which had covered the field regarding the qualifying and disqualifying factors for participation in a general election and thereby came to a wrong conclusion which has occasioned a grave miscarriage of justice.
PARTICULARS
i) It is the 1999 Constitution of the Federal Republic of Nigeria that provides for qualifying and disqualifying factors to elective posts created by the 1999 constitution;
ii) Any other qualifying and disqualifying factor outside the 1999 Constitution is null and void;
iii) Section 77(3) of the Electoral Act, 2022 cannot operate to impose additional qualifying or disqualifying factors to elective offices created by the 1999 constitution of the Federal Republic of Nigeria; and
iv) Section 77(3) of the Electoral Act, 2022 in so far as it purports to introduce additional qualifying factors for election into elective position is at variance with the 1999 Constitution of the Federal republic of Nigeria and therefore null and void by virtue of section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria.
GROUND EIGHT
3) The learned trial judge erred in law when it assumed jurisdiction over the claim of the Plaintiff, as constituted, when on the face of the originating summons and the Defendants endorsed thereon, the Federal High Court Kano lacks the territorial jurisdiction to entertain and determine the claim and thereby came to a wrong decision which has occasioned a grave miscarriage of justice.
PARTICULARS
i) Federal High Court is divided into judicial division for administrative purposes;
ii) Federal High Court Kano judicial division cannot entertain a complaint affecting activities of the 1st Respondent in each of the other states of the federation; and
iii) Plaintiff rushing to file his action at the Kano judicial division on a claim affecting other states of the Federation is forum shopping and an abuse of court process.
GROUND NINE
The learned trial judge erred in law in interpreting section 77(2)(3) of the Electoral Act, as a basis of disqualifying the 1st Respondent’s candidate for participating in the general election without due regard for the Appellate court’s decision in APM vs. INEC (UNREPORTED) APPEAL NO: CA/ABJ/CV/1414/2022 delivered on 8/2/2023 – which had earlier held that section 77 of the Electoral Act is not a ground for qualification or disqualification for an election and thereby came to a wrong conclusion/decision which has occasioned a grave miscarriage of justice.
PARTICULARS
i) The case of ALLIED PEOPLES MOVEMENT vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (SUPRA) is relevant and applicable to the instant action;
ii) The Court of Appeal in ALLIED PEOPLES MOVEMENT vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (SUPRA) held at page 70 of the judgment as follows:
“The words employed in section 29(1) and 77(2) and (3) of the Electoral Act, 2022, which I have reproduced above are clear, plain and unambiguous. Effect is therefore to be given to the literal, ordinary and plain meaning of the words used, moreso, when doing so would not lead to absurdity. It is instructive that the said provisions do not deal with the qualification or disqualification for a candidate for election”
iii) The Court of Appeal in the above stated case further held that:
“The Appellant seeks to import and read into the said constitutional requirement what is not provided therein by harvesting from section 77(3) of the Electoral Act, 2022, a qualification requirement that is not in the constitution.”
iv) By the doctrine of stare decisis, the lower court was bound to follow the decision of the Appellate court in construing and interpreting a provision of statute;
v) Trial court failed to follow the decision of the Court of Appeal in breach of the doctrine of stare decisis
GROUND TEN
The learned trial judge erred in law and acted without jurisdiction to void the victory and return of the candidates of the 1st Respondent at the general election of 25th February and 18th March, 2023 when it is not vested with jurisdiction to entertain Plaintiff’s claim which is a nullity.
PARTICULARS
i) A court cannot exercise judicial powers on matters outside its jurisdiction;
ii) By section 285 of the 1999 Constitution of the Federal Republic of Nigeria, only an election tribunal can question victory and certificate of return issued to a candidate who won an election;
iii) Trial judge by its decision exercised jurisdiction over a complaint meant for an election tribunal; and
iv) Decision of the trial court is a nullity
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
i) An Order allowing the Appeal;
ii) An order striking out and/or dismissing the Plaintiff’s originating summons;
iii) An Order setting aside the decision of the Federal High Court, Kano; and
iv) Such further or other orders as this Honourable Court may deem fit in the circumstances in favour of the Appellant herein.
5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:
NAMES ADDRESS
APPELLANT
1) DR. ALEX CHIOMA OTTI
RESPONDENT
1) IBRAHIM HARUNA IBRAHIM
2) LABOUR PARTY
3) INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
Dated …. day of May, 2023
……………………………………
………………………………..
C/o Lateef Fagbemi & Co.
Temitope Chambers
4th, Floor, Rivers House,
Plot 83, Ralph Shodeinde Street,
Opposite Federal Ministry of Finance
Central Area, Abuja
08033246788, 08023517218, 08061532427
lateeffagbemi@nigerianbar.ng,
fagblat@yahoo.com
FOR SERVICE
1) 1ST RESPONDENT
2) 2ND RESPONDENT
3) 3RD RESPONDENT
