TOPIC:
A CRITICAL APPRAISAL OF THE DECISIONS OF ELECTION PETITION TRIBUNALS IN
NIGERIA EBONYI STATE AS A CASE STUDY
CHAPTER THREE
JURISDICTION OF GOVERNORSHIP ELECTION
PETITION TRIBUNAL IN NIGERIA
3.1 Introduction
Jurisdiction is the fulcrum upon
which a court is vested with judicial power to adjudicate on disputes among
parties to an action. The centrality of jurisdiction to the determination of
disputes is crucial.
The issue of jurisdiction appears familiar among the legal
community; however, it is a recurring decimal as petitions are filed in courts
or tribunals that lack jurisdiction. It is safe to assert that jurisdiction is
a recondite issue, hence the need for an in depth analysis to enhance
understanding and appreciation. The court in a plethora of cases, has firmly
defined the concept of jurisdiction. In
Uba V Etiaba1, the concept of jurisdiction
was critically examined by the court in the following words:
“Jurisdiction
is defined as a term of comprehensive import embracing all kinds of judicial
action. It is basically the legal right by which judges exercise their
authority including the powers to hear and determine the subject matter in
controversy between parties to a suit. It is the basic foundation and conduct
of access to court in adjudication under the Nigeria legal system.”
From
this definition, the pivotal role of jurisdiction is beyond argument.
Jurisdiction goes to the root of proceedings. The absence of it vitiates the
entire trial or petition as the case may be.
In the same vein, jurisdiction is
the bedrock of a court. It is to a court what a spinal cord is to a man. If it
is damaged, the survival of that person is in serious jeopardy. So also is the
survival of the suit before a court or tribunal which lack jurisdiction.
Whatever procedure is adopted by that court, however brilliantly conducted
becomes a nullity and subject to be set aside. The issue of jurisdiction
certainly is a threshold matter and no court can assume jurisdiction where it
has none by circumventing or misinterpreting the prevailing law. This is the
position of the Supreme Court in the case of Turaki V Dalhatu.2
It is germane to assert that
jurisdiction is a threshold issue and life wire for the continuance of any
proceedings. It is liken to blood in human body. It is the heart of
adjudication, without the heart in human life, existence is in doubt.
The vital aspect of jurisdiction
with radical effect on adjudication as to render the proceedings a nullity was
enunciated by the court of Appeal in
Action Congress V Kaigama3. It was
held that:
“Jurisdiction
is the nerve center of adjudication. It is a radical and vital question of
competence because if a court has no jurisdiction to entertain a cause or
matter because of any defect(s) in the process of initiating same, the
proceeding remains a nullity ab nitio
no matter how well conducted and brilliantly decided, they might be; as a
defect in competence is not intrinsic, but extrinsic to the entire
adjudication”.
It is relevant to assert that there
is a nexus between justiciability and jurisdiction. There is a correlation
between “Justiciability” and “Jurisdiction”. Justifiability and jurisdiction in
respect of causes or matters are interwoven. If a matter is not justiciable, a
Tribunal or Court lacks requisite power or jurisdiction to entertain it. This
is the position of the Supreme Court in the case of Madukolu V Nkemdilim4 and the
Court of Appeal in Ozigbo V PDP5
Finally, the issue of jurisdiction
is a matter of what the statute says about a particular subject, that is to say
whether the matter could be subject to trial in a particular court of law. It
is obvious and only reasonable therefore to embark on a trial where there is
certainty, or if there appears to be certainty that the court has jurisdiction.
This is the position of the Court of Appeal per Ogunbiyi, JCA in the case of Okonkwo v. INEC6.
The jurisdiction of a Special Court,
indeed of all courts is circumscribed by the statute creating such a Court or
tribunal. In this case, the jurisdiction the election tribunal is confined,
limited and restricted by the provision of paragraph 49(2) and (5) of the first
scheduled to the Electoral Act, 2010 (as amended). The above position was
upheld in the case of Agagu v. Mimko7.
In all, by virtue of section 285 of
the 1999 Constitution, there shall be established in each State of the
Federation one of more election tribunals to be known as the Governorship and
legislative House Election Tribunal which shall, to the exclusion of any other
Court or tribunal, have jurisdiction to hear and determine petitions as so
whether any person has been validly elected to the office of the Governor or
Deputy Governor. It follows, therefore, that the only forum for the
determination as to whether a person has been validly elected to the office
Governor of a State is the Governorship Election Tribunal constituted for that
purpose. No other Court has original jurisdiction to determine the issue. This
was the decision reached by the Court in the case of Ogboru V. Ibori8
3.2 Establishment/Constitutive
Jurisdiction
It is important to point out that
prior to the amendment of the Constitution, the Governorship and Legislative
House Election Tribunal was fused. The creation of Governorship Election
Tribunal is therefore novel and a welcome development as stated earlier in this
work. The establishment of Election Petition Tribunals in Nigeria can be
gleaned form the name. However, section 285 (1) of the 1999 Constitution (as
amended) established the Election Tribunals. In this case, the Governorship
Election petition Tribunal under subsection (2). By subsection 2 of the above
section, the tribunal is vested with the original jurisdiction to hear and
determine petition as to whether any person has been validly elected to the
office of a Governor or Deputy Governor.
Jurisdiction is a very fundamental
issue in law, and it conferment must be made very clear. The language of the
relevant laws (substantive and procedural) and the decisions of superior Courts
(on the basis of judicial precedents) constitute the linchpin. A Court is only
competent when the subject matter of the case is within its jurisdiction and
there is no feature in the case which prevents the Court or tribunal exercising
its jurisdiction. The competency of tribunal or Courts is crucial for the
exercise of jurisdiction by such tribunal or Court.
There are four ingredients that must
be established for a tribunal or court to be competent to assume jurisdiction
for the determination of election petition. They are:
(a) the Court or Tribunal must be properly
constituted with respect to the number and qualification.
(b) the subject matter of the action must be
within its jurisdiction.
(c) the action is initiated by due process of
law.
(d) any condition precedent to the exercise
of its jurisdiction has been fulfilled. The Supreme Court in the celebrated
case of Madukolu & ors V. Nkemdilim9 established the ingredients
necessary to guarantee the competence of Court.
The above criteria are conjunctive
and must be fulfilled before Court can assume jurisdiction to exercise judicial
power. The competence Vel non of a Court
is a legal condition. It cannot be waived not even by the consent of the
parties and/or their Counsel10. It
can be raised by either of or all the parties or the Court Suo motu at any stage of the proceeding11. The issue of substantial justice does
not arise where Court lacks juridiction12.
The
Constitutive jurisdiction of Election Petition Tribunals will be discussed
under the following headings.
(a) Court of Appeal: Section 237(1)13 established the Court of Appeal. It
has exclusive original jurisdiction to hear and determine any question as to
whether: “any person has been validly elected to the office of the President or
Vice President under this Constitution”14.
In the hearing and determination of an election petition in its original
jurisdiction, the Court of Appeal shall be duly constituted if it consists of,
at least three justices of the Court of Appeal15.
It should be noted that Election tribunals for various Local government areas
and the Federal capital Territory Area councils, are outside the ambit of this
work and therefore not examined. The Supreme Court in Chief Emmanuel Osita Okere v. Alhaji Umuani Musa Yar’Adua and 34 ors16, defined election petition to mean ”any
election petition under the Electoral Act including election petition which
challenges the validity of election of persons into the office of the President
or vice President of Nigeria”17
In chief Olusegun Obasanjo & 2 ors V. Alhaji Mohammed Dikko Yusuf,18 the Independent National Electoral
Commission (INEC) in the April 19, 2003 general election returned the first
appellant as the president of the Federal Republic of Nigeria. The first and 2nd
respondents filed election petition at the Presidential Election Tribunal
constituted by the Court of Appeal. The appellants challenged the competence of
the petition on ground that certain paragraphs of the said petition raised
breaches of the Constitution and Companies and Allied Matters Act, which
according to the appellants, were not cognizable in an election petition based
on the Constitution of the Federal Republic of Nigeria. The Tribunal, that is
the Court of Appeal in its well considered ruling held:
“Indeed it is true that some of the matters complained
of in the paragraphs relates to breaches of the Constitution and Companies and
Allied Matter Act, but the fact that these breaches related to or arose out of
the conduct of presidential election or properly linked under the 1999
Constitution and the electoral Act 2002, only this Court to the exclusion of
any other court in Nigeria that has the original jurisdiction to hear and
determine such question under section 239(10) of the 1999 Constitution in an
election petition.”19
On appeal to the Supreme Court, the apex court held
that “matters or things which constitute infractions of the Constitution and
Companies and Allied Matters Act or any Act for that matter, should go before
the High Court and or Federal High Court as the case may be”. From the above
definition, it should be noted that both the Tribunal and the Supreme Court
were in agreement that there were breaches of the Constitution and the
provision of the Companies and Allied Matter Act; that those breaches arose out
of and in the course of the conduct of the presidential election and that
election petition can be presented solely on the Constitution challenging the
validity of the election of president and vice president of Nigeria.20
Appeal from the decision of Court of Appeal on the
matter of election of President and vice President of Nigeria lies to the
supreme as of right and it is exclusive.21
The Court of Appeal entertains appeals from the decisions of the National
Assembly Election Tribunals, and the Governorship Election Petition Tribunal
and the Legislative Houses Election Tribunals on any question as to whether any
person has validly elected:
a)
As a member of
the National Assembly or of a House of Assembly of a State under the
Constitution or
b)
To the office of
the Governor or Deputy Governor.
The
decision of the Court of Appeal over appeals arising from the judgment of
Governorship, Legislative House Election Tribunals and/or National Assembly
Election Tribunals is Final.22 No further appeal to the Supreme Court even
when the decision of the Court of Appeal was wrong.
However, the finality of the said
decision is subject to the inherent competence of the same Court to set aside
its own judgment on various judicial recognized grounds namely:
(a) Where the judgment was obtained by fraud
or deceit
(b) Where the judgment is a nullity,
(c) Where the judgment was obtained under the
mistaken belief that parties have consented.
(d) The judgment was obtained without
jurisdiction,23
(e) The procedure adopted was such that it
deprived the judgment of the character of legitimate adjudication.24
The nexus between the original
jurisdiction of Court of Appeal and its jurisdiction in Presidential Election
Tribunal must be stated. Section 145(1) is a general provision relating to all
elective position under the Electoral Act. Section 239(1) (a) is a specific
provision relating to only the election of the President or vice President. It
would appear that the general provision of section 145(1) (c) of the Electoral
Act can be assimilated into section 239(1) (c) of the Constitution. The court
held that section 239(1) (a) of the Constitution provides a sole ground for
questioning whether a person has been validly elected to the office of
president or Vice president25
(b) National Assembly election Tribunal
The National Assembly Election
Tribunal is established under the constitution with the exclusive original
jurisdiction to hear and determine petitions as to whether:
(a) any
person has been validly elected as a member of the National Assembly;
(b) the
term of office any person under this constitution has ceased;
(c) The
seat of a member of the senate of a member of the House of representative has
become vacant; and
(d) a
question or petition brought before the election tribunal has been properly or
improperly brought.26
The National Assembly Election
petition Tribunal shall consist of a chairman and four other members. The
chairman must be a judge of a High Court and the four other members shall be
appointed form among judges of a High Court, Kadis of a Shaira Court of Appeal,
judges of a Customary Court of Appeal or other members of the judiciary not
below the rank of a chief Magistrate.27
The chairman and other members shall be appointed by the president of court of
appeal in consultation with the Chief Judge of the state, the Grand Kadi of the
Sharia court of Appeal of the state or the president of the customary court of
Appeal of the State, as the case may be.28
The composition of the National
Assembly Election Petition Tribunal is in accordance with paragraphs 1 (1) and
2 (1) of the 6th schedule to the Constitution (as amended). However,
the quorum consists of the chairman and one other member pursuant to section
285 (4) of the 1999 constitution (as amended). This is a departure from the
composition and quorum prescribed under the 1999 Constitution which consists of
the chairman and for other members and a chairman and two other members as held
in the case of Agagu v. Mimiko29as follows:
“Section 285 (4) of the 1999 constitution states that
the quorum of an election tribunal established under the section shall be the
chairman and two other members. In the instance case, the chairman and three
members of the tribunal were constant throughout the whole proceedings of the
tribunal. In the circumstance, the compliant of the appellant relating to
change of the composition of the tribunal was unfounded”.
The combined effect of section 285
(3) & (4) of the 1999 Constitution, paragraph 1(1) of the sixth schedule of
the constitution and paragraphs 24(2) and 26 (2) of the 1st schedule
to the Electoral act, 2006, is that an election tribunal shall consist of five
members with a quorum of three members at any sitting. The tribunal will thus
be duly constituted if it consists of at least three members exclusive of the
chairman. In the absence of the chairman of the tribunal who commenced the
proceedings, the Act gives the new chairman the discretion to recommend and
continue the proceedings.30
(c)
The Governorship Election Petition Tribunal
The governorship election petition tribunal is a
recent development in our legal system. This is because before now, the
Governorship and legislative Houses Tribunal were fused. Therefore, the
creation of Governorship Election Tribunal is novel and welcome development.
Section 285 (4) of the 1999 Constitution states that
the quorum of an Election Tribunal established under the section shall be the
chairman and two other members. Going by
this provision, the problem of majority judgment may arise. This will happen if
the judgment is for and against, how will the tie be broken? That is to say, whether the chairman has veto
power on the issue in order to resolve the problem. From my own view, it seems
the chairman has such power, so that one of judgments should be adopted.
However section 285(3) states that the composition of
the Governor ship Election Tribunal shall be as set out in the sixth schedule
to this constitution. Also, according to item 2(1) of the sixth schedule, a
Governorship Election Tribunal shall consist of a chairman and four other
members. The chairman shall be a judge of a High Court and four other members
shall be appointed form among the judges of a High Court, Kadis of a Shaira
Court of Appeal, judges of a Customary Court of Appeal or members of the
judiciary not below the rank of a magistrate.31
The chairman and other members shall be appointed by the president of the Court
of Appeal in consultation with the chief judge of the state , the Grand Kadi of
the Shaira Court of Appeal of the State or the president of the Customary Court
of Appeal of the state, as the may be.32
From
the above provision in the sixth schedule, the composition of the Governorship
Election Tribunal appears properly constituted if it consists of the chairman
and not less than two other members.33.
It should also be noted that before now, the same panel that hears and
determine the Governorship and Legislative House Election petition also hears
and determine the Governorship and legislative House election petition34 although the jurisdiction of the
tribunals in respect of subject matter and parties are distinct and unrelated35.
The position is no longer the same since we now have a separate tribunal
called the Governorship Election petition Tribunal which is the focus of this
work.
Finally, it is submitted that the National Assembly
Election Tribunal and the Governorship Election Tribunal established under
section 285 of the 1999 Constitution are not superior courts of records. This
is because neither of the tribunals is specifically listed as a superior Court
of record under the Constitution.36 Also,
a chief magistrate is qualified for membership of either of the tribunals and
may, indeed sit in the panel.
3.3 Subject
Matter Jurisdiction
The subject matter of a case before a Court or
tribunal is very important before the Court or Tribunal can assume
jurisdiction. If the subject matter is outside that which the tribunal is
empowered to entertain, it means that the tribunal lacks jurisdiction. For
instance, the Governorship Election Petition Tribunal is empowered to hear and
determine any matter as to: whether any person has been validly elected to the office of the Governor or
Deputy Governor. In the of Madukolu &
ORS v Nkemdilim,37 it was
held that a Court is competent when “the subject matter of the case is within
its jurisdiction, and there is no feature in the case which prevents the court
exercising its jurisdiction. From this decision, it should be borne in mind
that subject matter of a case is not the only condition precedent for assuming
jurisdiction by a tribunal.
Election petition must be predicated
on valid subject matter or ground in law. The subject matter may be under the Constitution
or the Electoral Act, hence there are two classes of election petition and they
include: (a) election petition under the consistution38 and (b) election petition under the Electoral
Act.39
Under the Constitution, the
tribunals have the power to hear and determine any matter brought before it
under the following subject matters, that is whether any person has been validly
elected to the office of:
(a) President and vice president
(b) Member of the National Assembly;40 and
(c) Governor and Deputy Governor or/and
member of any Legislative House.
Under the Electoral Act, four grounds are established
upon which an election may be questioned. These grounds are enumerated
hereunder. By the provision of the Electoral Act, “an election may be questioned
on any of the following grounds,
that is to say:
(a) That a
person whose election is questioned was, at the time of the election, not
qualified to contest the election’
(b) That
the election was invalid by reason of corrupt practices or non-compliance with
the provision of this Act;
(c) That
the respondent was not duly elected by majority of lawful votes cast at the
election; or
(d) That
the petitioner or its candidate was validly nominated but was unlawful excluded
from the election42.
From
the above provision, for a tribunal to hear and determine any matter, it must
be brought under the above grounds otherwise the tribunal will not assume
jurisdiction. It should be noted that any of the grounds mentioned in section
138(1) of Electoral Act, 2010 (as amended) can vitiates an election if
sustained by the tribunal or court.43
Another issue to be considered under
subject matter jurisdiction is: whether an Election Tribunal has jurisdiction
to decided pre-election matters? An election tribunal has no power to
investigate matter which took place before the conduct of an election. Indeed,
it is the jurisdiction of ordinary Courts to decide pre-election matters and
which jurisdiction is unimpaired by virtue of sections 178(2) and 285 (2) of
the 1999 Constitution (as amended). Only the Federal High Court or a State High
Court has jurisdiction under this subject matter. In P.D.P. v ONWE,44 the
dispute which gave to the petition was the appellant nomination/ substitution
exercise. It was clearly an intra-party/pre-election dispute and had nothing to
do with the election of 21st April 2007. The court held that both Election
Tribunal and Court of Appeal had no jurisdiction and so the petition ought to
have been struck out. Also, on the disputes arising from primary election, the
Election Tribunal has no jurisdiction to entertain such matter45. This is so because, it is a
pre-election matter.
Issues of nomination,
sponsorship and substitution are pre-election matters which by their nature
cannot be ventilated before an Election Petition Tribunal, as tribunals are not
set up for that purpose.46
Having
discussed the subject matter where an election tribunal has jurisdiction to
entertain, it is imperative to note that the issue of qualification of
candidates can be validly challenged at the Election Tribunal within the
purview of section 138(1) 9a) of the Electoral act, 2010 (as amended). It is
hereby asserted that the express provision of section 138 (1) (a) does not
cover issues of nomination of candidates. The qualification envisaged, is
within the contemplation of Constitutional provisions as enshrined in sections
65, 106, 131 and 177 0f the 1999 Constitution (as amended).
It should also be bone in mind
that the issue of qualification of candidates as provided in section 31 (4) and
(5) of the Electoral Act, 2010 (as
amended) which falls within pre-election matters does not in any way constitute
a dog as to deprive the Election Tribunal the requisite adjudicatory powers47
Finally, it also instructive to
assert that the Election Tribunals have the jurisdiction to nullify an election
within the contemplation of section 140 (1) of the .Electoral Act, 2010 (as
amended) these powers extend to the
Court of Appeal and the supreme Court pursuant of sections 239, 246 (3) and 233
(2) of the 1999 Constitution (as amended).
A community reading of section 140 (1) of the Electoral Act and
paragraph 28 of the 1st schedule to the Electoral Act shows that Election
Petition Tribunals are vested with the jurisdiction to nullify elections. This
position was affirmed by the Court of Appeal in the case of uba V Etiaba48
3.4 Parties
Jurisdiction
Competent
parties are necessary for a tribunal to assume jurisdiction in an election
petition. The petitioner must have the locus standi while the necessary
respondent must be joined in the petition. Neither the parties nor the Courts
can confer or vest jurisdiction.49
Also, agreement, acquiescence,
consent or even by submission by parties does not or better still, cannot confer
or vest jurisdiction on a Court of law or tribunal where in law such
jurisdiction does not exist. So if the
party submitted to the jurisdiction or acquiesced thereto of the tribunal to
entertain the petition, if in law the petition was incompetent, the tribunal lacks
the requisite jurisdiction to try the petition.
And any proceedings conducted therein will be an exercise in futility no
matter how well they were conducted.50
Having noted that parties cannot confer
jurisdiction on a Court, it should however be noted be noted that a Court,
which has jurisdiction to an action will not subsequently lose that
jurisdiction simply because a defendant, or respondent in election matters, in
some vantage position and in complete disregard for the outcome of the pending
suit, goes ahead to do that which is sought to be prevented in the suit.51 In election petition, there are the
petitioner and the respondent.
(a) petitioner (s).
A petitioner in election petition is either a
candidate at the election or a political party that participated in the
election or both.52 A candidate in any election is not defined by
the Act. However, it was held that a
candidate at an election does not refer to a person “who had the intention to
contest an election but who was not allowed to context”53.
This definition tends to support the position that a person validly
nominated for an election but unlawful removed cannot present election
petition. However, in the case of Ibrahim Idris V ANPP54, the Court of Appeal opined that a
candidate validly nominated but unlawfully excluded from the election qualifies
as a candidate for the purpose of presentation of election petition. The mere fact that the candidate was not
voted for at the poll is irrelevant.55
For a better understanding of who may
present election petition, it is necessary to define election itself. Election
as a process does not have any comprehensive definition. It is a process that culminates into a return
of a candidate with the lightest number of valid votes cast. Merely voting in a polling unit is not
election per se but a poll.56
In
INEC & OrsV. Onyimbah E-C- Ray & Ors57, the concept of election was
defined by the Court as
… a process constituting accreditation, voting,
collation, recording on all relevant INEC from and declaration of results. The collation of all results of the polling
units making up the wards and the declaration of results are, therefore,
constituent elements of elections know to law.
The Act defines election to mean every election held under
the Act and includes referendum58. Election, for the purpose of candidates that
can present election petitions and the grounds thereof may be restricted to the
polling. In the strict sense, a difference
exists between election in its wide sense59
and a poll, though it is conventional to refer as election the day that voting
takes place (poll day)60
A candidate that can present election
petition is one that participated in the poll.
This is because election as variously used in the Act refers to the poll
and no more. The above position is
evident from the provision of the Act relating to the appointment of a date for
the holding of an election,61
postponement of an election,62
delivery of nomination papers for the purpose of election,63 substitution of candidates on ground
of death,64 nomination of
candidates 30days before the date of election65
etc. Election as used above refer to the
polling day
It should be noted that a political
party or its candidates or both can present election petition where the
electoral body unlawfully excludes the validly nominated candidates of the said
political party from the election (poll) provided the nomination and / or
substitution is not an issue before the tribunal.66
(b)
Respondent (s)
A respondent is a person against whom a
case, suit, or appeal is filed, whom in turn is required to answer, or act
according to the discretions issued by the Court till the conclusion of the
legal proceedings. In this case, a
respondent is a person against whom election petition is presented. There are three categories of respondents in
an election petition, they are:
(a). Statutory respondent who is the successful
candidate at the election
(b). electoral
officers, presiding officers, returning officers whose conducts are subject of
complaints in the petition and
(c). any
other person who took part in the conduct of the election and whose conduct is
subject of complaint in the petition.67
The phrase “any other person who took
part in the conducts of the election is not limited to officials of INEC who took part in the conduct of the
election but also includes a police officer that was assigned the duty to
ensure peaceful and free election but instead assisted to stuff ballot boxes
with unlawful ballot papers. But an
unsuccessful candidate may be made a respondent in election petition if he does
not object or withhold his consent68.
Effect of lack of jurisdiction
The,
effect of lack of jurisdiction from a plenitude of cases is that the entire
proceeding will amount to a nullity. In
Ikharaide V.Okoh,69 it was
held that:
“Where a court lacks jurisdiction no matters how well
the trial is conducted, the trial would be a nullity. That is the general state of law in adverbial
jurisprudence.”
From the decision of the Court, it
therefore follows that where a court lacks jurisdiction, any trial conducted is
as nullify. In other words, the existence or absence of jurisdiction goes to
the very root of matter so as to sustain or nullify the Court’s decision or
order in respect of the relevant subject matter.70
It is pertinent to assert that where an appellate
Court reaches a verdict that a trial Count lacked jurisdiction, other issues
for determination in an appeal will not be considered. The above position was
restated by the apex court in the case of Nwankwo
V Yar Adua71 as follows:
Where, as in the instant case, an appellate Court
finds out that the trial court lacked jurisdiction to entertain an action or
application forming the basis of an appeal, it will be unnecessary to consider
the rest of the issues that have to do with the merit of the case.
The general position of law is to the effect that when
a Court lacks jurisdiction, the proper order to make is to strike out the suit.
This is in line with the cherished principle to enable the affected party to
regularize or repair his case if possible. In the case of Uba v Etiaba,72
the Court held that in the situation where a Court lack jurisdiction to
entertain a suit, the proper order to make is to strike out the suit.
It is
apposite to state that in view of the peculiarity of election petitions where
time is of the essence and there is a prescribed time frame for filling
petition, it would amount to an academic exercise to strike out an election
petition for want of jurisdiction.73
The writer finds solace in the profound judgment of the Court of Appeal as to
the proper order to make where an Election Tribunal lacks jurisdiction, in Orji V Ugochukwu,74 where it was held:
It is the petitioner’s petition or plaintiff’s action
that vests jurisdiction in a Court, and if the petitioner’s claim has divested
the trial tribunal of jurisdiction, the entire proceedings before the tribunal
constitutes a nullity and since an election matter is sui generic, the proper order to make is not just striking not but
that of dismissal.
The decision of the Court of Appeal is to the effect
that the order of dismissal should be made instead of striking out the suit.
1 Uba V Efiaba (2008) 6 NWLR (Pt.1082)
155 at 182-183 Paras. G-A.
2 Turaki V Dalhatus (2001) FLWR (pt.55) Pg
501
3 Action Congress V Kaigama (2008) 8 NWLR
(pt.1088) 165 at 180 paras. B-D.
4Madukolu V Nkemdilim (1962) 2 SCNLR 341
5 Ozigbo V PDP (2010) 9 NWLR (Pt.1200)
600 at 647 para. B-C.
6 Okonkwo v. INEC (2006)
2 EPr at 149
7 Agagu v. Mimko (2009)
7 NWLR (Pt 1140) 343 at 390 – B-D.
8 Ogburu v. Ibori (2003) 13 NWLR (Pt.
942) 319 at 438-439 paras. D-A
9 Supra.
10
Constitution of the Federal Republic of Nigeria (as amended)
11 NDIC V CBN & Anor (2009) 9NSCQR 430
at p. 443; Labour Party v. INEC (2009)
6 NWLR (pt. 1137) 31 at p. 332.
12 Emma O.Emesir V. Calista Nwachukwu & ors
(1999) 3 NWLR (Pt.596), 590 at p. 604.
13
Constitution of the Federal Republic of Nigeria 1999 (as amended)
14 Ibid. Section 239(1( (11). Obasanjo V. Yusiff & anor (2004) 9 NWLR (pt. 877), 144 at p. 180 paras C-f.
15Ibid. Section 239 (2) Osita
V Musa Yar-Adua & 3 4 ORS (2008)
16 Supra.
17 Supra at page 116 paragraphs A-B.
18 Supra
19 Supra at p. 183 paragraphs F-G
20
Supra at pp 183-184 Paragraph H-A
21 Section
233 (1) (2) (e) (i), 1999 Constitution ( as amended ).
22. Section 246 (3) of the 1999 constitution
23.Adeyemi Bero V
Babatunde Omotosito &3 ors ( 2008 ) 15 NWLR ( pt.. 1111 ) page 567
24.Aliance for
Democracy V INEC $ 3 ors ( 2004 )
EPR 288. Page 304, paras. C-E
25Obasanjo v Yusuf (2004) 9 NWLR (pt. 877) P. 144 referred in Buhari v INEC (2008) 17 NWLR (pt, 1120)
246 at 351 paras F-G.
26 Omoworare V
Omisore (2010) 3 NWLR (Pt. 1180) 58 at 109-110, paras F-B.
27 Sixth Schedule
item 1 (1) to the 1999 Constitution of Federal Republic of Nigeria
28 Sixth
Schedule, items 1 (3), Ibid.
29 Agagu v. Mimiko (2009) 1 NWLR (pt. 1121)
at 58 -59 paras., H.A.
30 Bichi v
Shekarau (2009) 7 NWLR (pt. 1140 ) 342 at 397, paras. G-H; Ngige v. Obi (2006) 14NWLR (pt. 999) p.1
31 Sixth Schedule,
item 2 (2) of the 1999 Constitution
32 sixth
Schedule, item 2 (3) Ibid.
33 Setion
285(4) Ibid, Ugochilkwa Agballah v.
chinaroke Nnamani v ors (2006) 2 EPR 757 at 786.
34 chief Suleman
M. Ajadi v. Simeon Sule Ajiho & ors (2004) 16 NWLR (Pt 898), 91 at
p.158-159.
35 Harastrup
Adewale Olatunyi v. Tayo Akaarde & ors (2006) 2 EPR 962 at P. 971-972.
36 Section
6(3) (5) (a) - (1) of the1999 Constitution. This section enumerates the
superior Courts of records in Nigeria.
37 Madulolu & ors v. Nkemdilim (1962) 2
NSCC 323
38 Section
239 (1) (a), 285 (1) (a) (2) of the 1999 Constitution
39 Section
138 (1) (a) (b) (c) & (d), Electoral Act, 2010 (as amended) Obasanjo ors v Yusaf & anor (supra)
at p. 180-181
40 Section
285(1) (a) of the 1999 constitution
42. Section
1389 (1) (a-d) of the Electoral Acts, 2010
43 Ojukwu V.
Yar’Adua (2009) 12 NWLR (pt. 1154) 50 at 173-174, Paras, H-D per Onnoghen,
JSC.
44 P.D.P v Onwe (2011) 3 NWLR (pt. 1236) 166 at 176 paras.
C-D, 174, para B.
45 Bob V. Akpan (2008) 7 NWLR (pt. 1087) page 449
46 Saulawa V Kabir (2011) 2 WWLR (Pt. 1232) 417 at 440 Para D. Ucha v Onwe (2011) 4 NWLR (pt. 1237) 386 at 428 Paras.
F-G
47 Anambra State V Nwankwo (1999) 5 NWLR (pt.
601) P. 134 Nwankwo v Atta (1995) 9 NWLR (pt. 418) P. 245
48 Uba v
Etiaba supra, Para D.
49 African
Newspaper v F.R.N (1985) 2 NWLR (pt. 6) P- 137; Enimiken V Sylva (2008) 8 NWLR (pt. 1088) 207 at 222 Para B-C.
50 Sule V Kabin
(supra ) Pars. G-B
51 Amechi v INEC (2007) 18 NWLR (Pt. 1065) P. 42; Badejo V Federal Minister of Education
(1996) 8 NWLR (Pt 464) P. 15
52 Section
137(1) of the Electoral Act, 2010 (as amended) which is in para masteria with
section 144 of the Electoral Act, 2006
53 Bakola
Adebusuyi V Babatunde Ofuligoye & Ors (2004) 1 NWLR (pt 920 p. 140, Okonkwo
INEC (2006) EPR P. 94
54 Ibrahim Idris V
ANPP (2008) 8 NWLR (Pt 1088) P.1
55 Amechi v INEC
Supra.
56 Justice P.A
Onamade, Op.Cit P.2
57 INEC V Onyimbah (2004) 14 NWLR (pt 892)
92 at P. 123
58 Section 156
of the Electoral Act, 2010 (as amended)
59 Ojukwu V
Obasanjo & ors (2004) 1EPR 626 at 653 where in election was defined
widely to include delimination of constituency. Cited by C-A Igwe: Jurisdiction f Election Tribunals in Nigeria, EBSU
Journal of Commercial and Industrial Law P. 46.
60 Ibid. Page 46
61 Section
25 of the Electoral Act, 2010 (as amended)
62 Section
26 Ibid.
63 Section 31 Ibid.
64 Section 36 ibid.
65 Section 34 Ibid
66 C.A Igwe Jurisdiction of Election Tribunal in Nigeria EBSU
Journal of Commercial & Industrial Law Vol. 1.p. 46
67 Muhammelu Buhari V Obasanjo & ors (2005) 2 NWLR Ipt 910) 1, at P. 726
Paragraphs C-E.
68 Olusegun
Obasanjo & 2 ors V Mohammed Dikko Yusuf & anr (2004) 9 NWLR (pt. 877) 144 at P. 215; Buhari V Yusuf (2003) 14 NWLR (Pt. 841, 446.
69 Ikharaide V
Okoh (2009) 12 NWLR (pt. 1154) P. 31
Paras E-F.
70 Ibaku V Ebim (2010) 17 NWLR (Pt. 1222) 286 at 315 Pas C-E
71 Nwakwo V Yar
Adua (2010) 12 NWLR (Pt. 1209) 419
at Para H.
72 Supra P.
155 at 223, para. G.
73 J.E
Alobo: Juridprudence of Election
Petition; in honour of Chief Whole Olamipekun SAN, 2011 Published by Diamondreal Resources Consult P. 441.
74 Orji V Ugochukwu (2009) 14 NWLR (Pt. 1161) 8 WWLR (pt 614)
P. 334, Mustapha V Governor of Lagos State
(1987) 2 NWLR (Pt. 58) P. 539.