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.