The Supreme Court Friday dismissed an appeal filed by a former Kogi State Peoples Democratic Party(PDP) flag bearer Alhaji Jibrin Isah aka Echocho seeking to void the election of Governor Idris Wada.
Both the Federal High Court and the Court of Appeal in Abuja had earlier dismissed Echocho’s suit for want of jurisdiction.
Both courts ruled that the grievance for which Echocho sought adjudication was an election matter which should have been taken before an election tribunal by virtue of 1999 Constitution (as amended) an the Electoral Act 2010.
But in his appeal to the Supreme Court, Echocho’s lawyer, Chief Wole Olanipekun, SAN faulted the judgments of the two lower courts and argued that the case was an invitation for the interpretation of some provisions of the constitution.
In an immediate reaction to the judgment, Kogi State Governor, Capt. Idris Wada said his victory at the apex court was yet another victory for democracy, describing it as “freedom received at the highest temple of justice in Nigeria.”
The governor in a terse statement by Jacob Edi, his Special Adviser, Media and Strategy, said he hoped the judgement would put an end to the agitation by his opponents.
While upholding the judgments of the two lower courts, Justice Bode Rhodes-Vivour said that Echocho had no interest to protect since he did not take part in the Kogi State governorship election.
Justice Rhodes-Vivour’s judgment was endorsed by four other justices of the court namely: Mahmud Mohammed, Christopher Chukwuma-Eneh, Clara Ogunbiyi and Kumai Akaahs.
Justice Rhodes-Vivour said: “Applying the facts of the case, the appellant has been unable to show how his civil rights and obligations have been or are in danger of being infringed in an election he did not participate.”
His Lordship held that the two courts below were correct in finding that a federal high court had no jurisdiction to hear the appellant’s case.
According to him, the proper forum to hear the appellant’s claims is a governorship election tribunal.
“The courts below were also correct in finding that the appellant not having participated in the election of 3/12/11, does not have locus standi to challenge the election under any guise whatsoever,” he added.
The apex court also held that Echocho was barred from relying on the results of the PDP primaries held on 9/1/11 after he unsuccessfully participated in the rescheduled primaries held on 22/9/11.
The court also held that the Independent National Electoral Commission (INEC) was right to have jettisoned the first primaries won by Echocho in view of the judgment of the Court of Appeal which held that the tenure of the then governor, Idris Ibrahim had not yet ended.
The Appeal Court judgment was later set aside by the Supreme Court.
Justice Rhodes-Vivour said that Echocho could not benefit from the decision in Amaechi V INEC because: “First he did not win the rescheduled primaries conducted on 22/9/11. Governor Amaechi won the only primaries conducted for the gubernatorial elections in Rivers State.
“Secondly section 141 of 2010 Electoral Act as amended states that: ‘An election tribunal or court shall not under any circumstances declare any person ?a winner at an election in which such a person had not fully participated in all the stages of the said election.”
“Section 141 has put to rest or set aside the decision in Amaechi’s case.
“The position of the law now is that a person must participate in an election before he can be declared the winner of the election”
Echocho had prayed the court to among other things grant him the following reliefs:
* an order setting aside the election by the 1st defendant (INEC) to the office of the Governor of Kogi State on 3rd December, 2011 and which said election purportedly produced the 2nd defendant(Wada) as Governor-elect of Kogi State.
* an order setting aside the swearing in of the 2nd defendant as Governor of Kogi State.
* an order directing that the 1st defendant (the Independent National Electoral Commission) pursuant to the Supreme Court judgment of January 27, 2012 to arrange and conduct a fresh election to the office of the Governor of Kogi State.
* and in the alternative should the court hold that the election of 3rd December, 2011 in Kogi State is regular, a declaration that the candidature of the plaintiff as governorship candidate of the party in Kogi State communicated to INEC on January 27, 2011 having not been withdrawn, the plaintiff be declared to have been the candidate returned in the said election.
The appellant said as the winner of an earlier governorship primary election he sought constitutional interpretation following the Supreme Court judgment voiding the tenure elongation of some governors as it affected his nomination as PDP flag bearer for the April 2011 Governorship Election which was cancelled as a result of the judgments of the lower courts calculating the tenure of the ousted governors as four years starting from the date they last took oath of office.
He maintained that the election conducted by INEC and which was won by Wada was wrong for several reasons among which are:
* the election was held during the pendency of the suit challenging the judgment of the lower courts extending the tenure of the ousted governors. And therefore a nullity. He cited Obi V INEC (2007) 11 NWLR(pt1046) 565 Uba V Etiaba (2010) 10 NWLR (pt1202) 343.
He therefore maintained that his suit was an action for constitutional interpretation that could be commenced by Originating Summons and not an election petition as held by the courts below.
However Wada led by his attorney, Chief Chris Uche SAN urged the apex court to sustain the judgment of the lower courts and dismiss the action because it was an election petition no matter the pretensions.
He said: “We submit that the substance, character and content of the reliefs sought by a party determines his claim irrespective of whatever phraseology in which it is couched by the party.”
He maintained that it was trite law that only an election tribunal could entertain any dispute arising from a concluded election except if the action was commenced before the holding of the election.
In this case he said appellant went to court two clear months after the election was concluded and the winner sworn in.
Besides he contended that Echocho lacked the locus standing to bring any action on the basis of the aborted PDP nomination exercise of January 2011 as he had already waived any claim to that exercise after voluntarily participating in the fresh primaries of September 22, 2012.
“Despite all the opportunities he had before the primary election fixed for September 2011, the appellant did not at anytime in any manner whatsoever challenge the abortion and or cancellation of the primary election of January 2011.
“He rather participated in all the processes of the primary election of September 2011 including voluntarily paying for and obtaining and personally filling the Expression of Interest Form and the Nomination Form, attending screening and standing for the primary election.”
Citing the case of PDP V Sylva (2013) 13 NWLR (pt1316) 85 he said the Supreme Court had earlier deprecated such conduct when it held that, “Since Sylva had abandoned the result of the primary election which he won in January 2011 by choosing to participate in the one held in November 2012, he should not turn around and seek to validate the January primary election.”
Also relying on the apex court’s lead judgment delivered by Rhodes-Vivour JSC in the Sylva’s case, he said the Supreme Court had already declared the primaries which Echocho was latching to as history.
He said: “In sum the first respondent was no longer the PDP candidate for the gubernatorial election.
“Besides he contends that the election now been challenged had passed through the election tribunal, the Court of Appeal up to the same Supreme a Court in Election Petition NO. EPT/KG/GOV/1/2011 Abubakar Audu &2Ors V Capt Idris Wada and 4Others and had been validated all the way with the apex court judgment given on September 10, 2012 in SC/332/2012 and SC/333/2012.”
Wada said the suit apart from been incurably incompetent for want of jurisdiction was also a gross a use of court process, and must therefore fail.