ALL PROGRESSIVES CONGRESS v. MR JOSEPH OLUJIMI KOLAWOLE AGBAJE & ORS
(2015)LCN/7990(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of August, 2015
CA/L/EP/GOV./751A/2015
RATIO
ELECTION PETITION: SECTION 138(1) OF THE ELECTORAL ACT; WHETHER THE PROVISION OF SECTION 138(1) OF THE ELECTORAL ACT DONATES A TO PARTY A RIGHT TO CHALLENGE AN ELECTION ON ANY OF THE LISTED GROUNDS
The provision, which has fallen for interpretation in an avalanche of cases, donates to a party a right to challenge an election on any of the listed grounds, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. per. OBANDE FESTUS OGBUINYA, J.C.A.
ELECTION PETITION; THE MEANING OF NOMINATION AND THE STATUS GIVEN TO QUALIFICATION/DISQUALIFICATION OF A CANDIDATE FOR AN ELECTION
Nomination connotes “appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named”, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347. The law has classified nomination and sponsorship as pre-election matters, see PDP v. Onwe (2011) 4 NWLR (Pt. 1236) 166; Dingyadi v. INEC (supra); Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 171. In the eyes of the law, qualification/disqualification of a candidate for an election is an amphibious incident in that it appertains to pre-election and post-election matters. Put simply, a challenge to qualification/disqualification of a candidate enjoys the status of pre-election and post-election matters, see Gwede v. INEC (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. Thus, the law has endorsed the hybrid status of qualification/disqualification of a candidate in an election. per. OBANDE FESTUS OGBUINYA, J.C.A.
COURT: JURISDICTION; COURT HAS THE JURISDICTION TO ENTERTAIN A CHALLENGE TO QUALIFICATION
Then, which court has the jurisdiction to entertain a challenge to qualification? The answer is discernible from Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90, wherein Onnoghen, JSC, observed: I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended), is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest an election is both pre-election and election matter. per. OBANDE FESTUS OGBUINYA, J.C.A.
COURT: DUTY OF COURTS; WHETHER THE SACRED DUTY OF A COURT IS JUS DICERE AND NOT JUS DARE
It is trite that the sacred duty of a court is jus dicere and not jus dare: to declare the law and not to make one, see UGWU v.. ARARUME (2007) 12 NWLR (Pt. 1048) 365. It is, with deference, an affront to the interpretative jurisdiction of the trial tribunal for it to import irregularity, which is alien to Section 138(1)(b) of the Electoral Act, as a cognisable ground under it. Besides, the finding takes to flight on confrontation with the origin and longevity of the concept of smart card readers which were highlighted above. On this premise, the finding is hostile to the law and liable to vacation by this Court. At any rate, there is another reason which compels this court to interfere with the finding. The glaring absence of a relief to sustain the pseudo-ground, as rightly found by the trial tribunal, is another coup de grace in the sustenance of it. All in all, I resolve issue two in favour of the cross-appellant and against the first and second cross-respondents. per. OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVES CONGRESS
(CROSS-APPELLANT) Appellant(s)
AND
1. MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. MR. DAPO AKINWUMI AMBODE
5. THE RESIDENT ELECTORAL COMMISSIONER FOR LAGOS STATE, INEC
(CROSS-RESPONDENTS) Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A.(Delivering the Leading Judgment): A single decision of the Governorship Election Tribunal of Lagos State (hereinafter referred to as the “trial tribunal”), coram judice: M. I. Sirajo, J. (Chairman), G. C. Anulude and A. Rotimi-Balogun, JJ (Members), in Petition No. Gov./EPT./L/15/2015, delivered on 1st July, 2015, gave birth to four extant appeals. This cross-appeal is one of them. It probes into the correctness of some portions of the decision; precisely the competence of paragraphs 13(b) and 14 of the petition as viable grounds to query the election.
?
The facts of the petition, which transformed into the cross-appeal, are submissive to brevity and easy comprehension. The third cross-respondent, the Independent National Electoral Commission (INEC, for short), a body constitutionally assigned with the onerous task of conducting election in Nigeria, conducted election into the office of the Governor of Lagos State on 11th April, 2015. In the said election, the fourth cross-respondent was the flag bearer of the cross-appellant, All Progressives Congress, (APC): a registered political party in Nigeria. The second
cross-respondent, Peoples Democratic Party, (PDP), another registered political party in Nigeria, had the first cross-respondent as its standard bearer during the election. At the end of the election exercise, the third cross-respondent, INEC, via the fifth cross-respondent, declared and returned the fourth cross-respondent as the winner of the election. The first and second cross-respondents were displeased with the result of the election. Hence, on 30th April, 2015, they beseeched the trial tribunal, by dint of a petition, located at the threshold of volume 1 of the record, at pages I-II of it, and solicited for the following reliefs:
1) That it may be determined and doth declared that the 3rd respondent cannot validly present a candidate for the election into the office of the Governor in the gubernatorial election of Saturday, 11th April, 2015, having failed to comply with the mandatory provisions of Sec. 85 of the Electoral Act, 2011 (as amended).
2) That it may be determined and doth declared that the 2nd respondent, Mr. Dapo Akinwumi Ambode being the candidate presented by the 3rd respondent was not qualified to have contested the Lagos State
gubernatorial elections conducted on Saturday, 11th April, 2015, as the process of his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 as amended.
3) That the 2nd respondent be disqualified as a candidate for the gubernatorial election held in Lagos State on the Saturday, 11th April, 2015 as the process of his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria as amended.
4) That it may be determined and doth declared that the 1st Petitioner, Mr. Joseph Olumimi Kolawole Agbaje being the candidate with the highest number of votes cast amongst the lawful and the valid candidates for the gubernatorial election held in Lagos on Saturday, 11th April, 2015, be declared as the winner of the said election.
5) AN ORDER nullifying the act of the 4th respondent in declaring the 2nd respondent, Mr. Dapo Akinwumi Ambode as the Governor-Elect in the gubernatorial election held in Lagos State on Saturday, 11th April, 2015.
6) That it may be determined and doth declared
the 1st petitioner is winner of the gubernatorial elections held in Lagos on Saturday, 11th April, 2015, being the candidate with majority votes cast amongst the lawful and valid votes cast at the said elections.
7) AN ORDER mandating the 1st respondent, through the 4th respondent, to declare and return the 1st petitioner; Mr. Joseph Olumimi Kolawole Agbaje being the candidate of the 2nd petitioner as the governor-elect of Lagos State.
8) AN ORDER nullifying the Lagos State gubernatorial election conducted by the 1st respondent in Lagos State on Saturday, 11th April, 2015 in the following areas: 1. Epe, 2. Badagry, 3. Mushin, 4. Ikorodu, 5. Eti Osa, 6. Alimosho, 7. Ikeja, 8. Ibeju Lekki, 9. Lagos Island, 10. Apapa, 11. Ifako Ijaiye, 12. Kosofe, 13. Mainland, 14. Agege 15. Somolu as same is invalid for non-compliance with the provisions of the Election Act.
?
In expected reactions, the cross-appellant and the fourth cross-respondent and the third and fifth cross-respondents filed their respective replies which joined issues with the petition. At the closure of pleadings, the petition and replies, the cross-appellant brought an application, filed
on 20th May, 2015, found at pages 293-312, volume 1, of the record wherein it entreated the trial tribunal to strike out or dismiss the petition for lack of jurisdiction on the grounds that:
a. The petition was incompetent having failed to state any grounds recognised by law for presenting the petition and which grounds ought to be struck out brevi manu;
b. While grounds (a) and (b) contained in paragraph 13 of the petition are completely unknown to the Electoral Act, ground (c) contained on page 14 of the petition is a pre-election matter in respect of which the Tribunal has no jurisdiction;
c. The petitioners did not meet all the conditions precedent to present the petition.
The first and second cross-respondents, stoutly, registered their opposition to the application as evidenced from the processes filed at pages 390-400, volume 1, of the printed record.
?
Prior to hearing of the petition, exactly on 26th June, 2015, owing to the incompatible stands of the counsel for the parties, the trial tribunal had ruled that all the notices of preliminary objections and motions “shall be heard and determined in the pre-hearing session” as
showcased at page 1254, volume II, of the record. Sequel to that, the trial tribunal consolidated the cross-appellant’s application with other preliminary objections and fused their hearing. In a considered ruling, delivered on 1st July, 2015, the trial tribunal struck out the petition.
For the sake of keeping the record straight, the first cross-respondent was aggrieved by the decision and appealed against it in Appeal No. CA/L/EP/Gov/744/2015. This cross-appeal is the cross-appellant’s expression of its dissatisfaction with some parts of the decision. It lodged its three-ground notice of cross-appeal, embedded at pages 1291-1295, volume II, of the record, and prayed this court for:
4.1 An order allowing the cross-appeal of the cross-appellant and setting aside that part of the judgment of the Tribunal delivered on the 1st day of July, 2015.
4.2 An order striking out the petition as incompetent having not been based on any ground recognised by the Electoral Act, 2010 (as amended).
Thereafter, the parties filed and exchanged their briefs of argument in line with rules regulating the hearing of election appeals in this Court. The
cross-appeal was heard on 13th August,2015.
During its hearing, learned counsel for the cross-appellant, R. A. O. Adegoke, Esq, adopted the cross-appellant’s brief of argument, dated and filed on 31st July, 2015, the cross-appellant’s reply brief to the first cross-respondent’s brief of argument, dated and filed on 6th August, 2015, and the cross-appellant’s reply brief to the second cross-respondent’s brief of argument, dated and filed on 13th August, 2015, as representing his arguments for the cross-appeal. He urged the court to allow the cross-appeal. Similarly, learned counsel for the first cross-respondent, G. O. Giwa-Amu, Esq., adopted his brief of argument, dated 1st August, 2015 and filed on 3rd August, 2015, as forming his submissions against the cross-appeal. He urged the court to dismiss it. In the same vein, learned counsel for the second cross-respondent, Chief Richard Oma Ahonaruogho, adopted its brief of argument, dated and filed on 12th August, 2015, as representing his arguments against the cross-appeal. He prayed the court to dismiss it. Again, learned counsel for the fourth cross-respondent, Mrs. Doyin Rhodes-Vivour, adopted his brief
of argument, dated and filed on 7th of August, 2015, as forming her submissions in conceding to the cross-appeal. She urged the court to allow it. Learned counsel for the third and fifth cross-respondents, E. R. Emukpoeruo, Esq., intimated the court that they filed no brief of argument.
In the cross-appellant’s brief of argument, it distilled two issues for determination to wit:
1. Whether the Tribunal was right in its decision when, having held that paragraph 14 of the petition is a challenge against the nomination of the 4th cross-respondent, still went ahead to hold that the said paragraph 14 of the petition is valid ground for presenting a petition.
2. Whether the Tribunal did not err in law when it held that paragraph 13(b) of the petition, which complained of “Irregularities in respect of the use of the card reader during the election”, is a ground recognised under Section 138(1)(b) of the Electoral Act, 2010 (as amended).
Admirably, all the cross-respondents, who filed briefs of arguments, adopted the two issues formulated by the cross-appellant.
?
Arguments on the issues.
Learned counsel for the cross-appellant submitted
that paragraph 14 of the petition raised issue of nomination which was a pre-election for which the High Court or Federal High Court, not the trial tribunal, had jurisdiction. He referred to Sections 177(C) and 182(1) of the Constitution, as amended. He added that Section 85(1) of the Electoral Act, 2010, as amended, (hereunder abridged to the “Electoral Act”) could not add or subtract from the qualification on those provisions. He relied on INEC v. MUSA (2003) 3 NWLR (Pt. 806) 72 for the submission. He noted that the Constitution allowed the National Assembly to legislate on election matters in its Section 184(a)-(c), not the issue of giving 21 days notice of convention to INEC. He stated that the only situation where valid nomination could become part of qualification was as contained in Section 187(1) of the Constitution. He posited that the word “shall” in Section 85(1) of the Electoral Act should be construed as “may” because it had no sanction. He relied on Ifezue v. Mbadugha (1984) NSCC, Vol. 15, 15; Monye v. PTFTM (2002) 15 NWLR (Pt. 789) 209; Section 85(2) of the Electoral Act for the point. He explained that valid nomination would be pertinent in a
lawful exclusion from an election. He cited Section 138(1) (d) of the Electoral Act; PDP v. Haruna (2004) 16 NWLR (Pt. 900) 597; Orji v. PDP (2009) 14 NWLR (Pt. 1161) 310; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56 for the view. He noted that invalid nomination qualified as pre-election matter. He cited Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347 for the point. He explained that the purpose of Section 177 of the Constitution, as amended, was to avoid independent candidacy and not a basis for presenting petition. He relied on Fashogbon v. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 644; Ojukwu v. Obasanjo (2004) 7 SC (Pt. 1) 117 on the point. He criticised the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223 and distinguished it from the case in hand. He maintained that a person who did not contest a primary election had no locus standi to challenge its outcome under Section 138(1) (a) of the Electoral Act. 2010, as amended. He cited PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85; APGA v. Anyanwu (2014) 7 NWLR (Pt. 1407) 541; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 114; Section 87 (1) and (9) of the Electoral Act for the submission. He referred to Bewaji v.
Obasanjo (2008) 9 NWLR (Pt. 1093) 540 on the relationship between reliefs and locus standi.
For the first cross-respondent, learned counsel contended that for the fourth cross-respondent to be qualified, he must be properly nominated under Section 85(1) of the Electoral Act. He relied on Ardo v. Nyako (2014) 42 WRN 1. He insisted that the trial tribunal rightly applied the ratio decidendi in Wambai v. Donatus (supra). He reasoned that paragraph 14 of the petition was a ground that could be addressed in the High Court and in a tribunal. He stated that a pre-election matter, like in the case in hand, could constitute a ground to challenge election. He cited Gwede v. INEC (2015) 242 LRCN 138; PDP v. INEC (2015) 2 WRN 1; Dangana v. Usman (2012) 208 LRCN 92 for the contention. He postulated that a political party must comply with the provisions of Section 85(1) of the Electoral Act for its candidate to qualify as a candidate for an election. He relied on Ardo v. Nyako (supra) for the postulation. He explained that the Act was not in conflict with Sections 177 and 182 (1) of the Constitution, as amended.
?
On behalf of the second cross-respondent, learned
counsel aligned with the submission of the counsel for the first cross-respondent that the trial tribunal had jurisdiction in respect of paragraph 14 of the petition. He cited PDP v. INEC (2014) 7-9 MJSC 181; Atai v. Dangana ? INEC Law Report (2012) Vol. 1, 523; PDP v. Usman (2013) 6 NWLR (Pt. 1349) 50; Wambai v. Donatus (2014) 13 NWLR (sic) 223 to support his argument.
?
For the fourth respondent, learned counsel submitted that Section 85 of the Act could not be regarded as qualification issue as it related to nomination. She added that Wambai v. Donatus (supra) and Dangana v. Usman (supra) were not applicable to the case. She reproduced Sections 177 and 182(1) of the Constitution, as amended, and persisted that they had covered the field on the requirement for eligibility as a gubernatorial candidate. She noted that sponsorship was not the case of the first and second cross-respondents in the trial tribunal and a court should not make a case for a party. She relied on Cookey v. Fombo (2005) 5 SC (Pt. II) 102 for the view. She posited that sponsorship/nomination qualified as a pre-election matter which the trial tribunal had no jurisdiction. She
relied on Dingyadi v. INEC (No. 3) (supra); Ibrahim v. Umar (2012) 7 NWLR (Pt. 1300) 507; PDP v. Onwe (2011) 4 NWLR (Pt. 1236) 166; Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) 209 for the submission. She adopted the submission of the cross-appellant who had the locus standi to question his nomination obtained in a primary election. She referred to Mustafa v. Monguno (1987) 3 NWLR (Pt. 62) 663); Mobil Oil Producing (Nig.) Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Emenike v. PDP (2012) All FWLR (Pt. 640) 1261.
On point of law, learned counsel for the cross-appellant distinguished between the authorities cited by the first and second cross-respondents and the cross-appeal.
Issue two.
Learned counsel for the cross-appellant submitted that paragraph 13(b) of the petition did not qualify as a ground under Section 138(1) (b) of the Electoral Act in that it did conform to the provision of the latter. He relied on Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt. 1154) 50 to support the submission.
?
For the first cross-respondent, learned counsel postulated that the
irregularities mentioned in paragraph 13(b) of the petition were those envisaged by Section 138(b) of the Act. He maintained that the trial tribunal was right in invalidating it.
On behalf of the second cross-respondent, learned counsel agreed with the contention of learned counsel for the first cross-respondent. In addition, he relied on MDPDT v. Okonkwo (2001) FWLR (Pt. 44) 502 to further support the point.
On the side of the fourth cross-respondent, learned counsel argued in line with the submission of the counsel for the cross-appellant: that paragraph 13(b) of the petition was not a valid ground under the law.
Resolution of the issues.
This cross-appeal, though a stubborn one, falls under a very lean scope. In the interest of orderliness, I will attend to the two issues in their numerical sequence in that both evince jurisdictional questions.
However, by way of prefatory remarks, I must place on record that one knotty point is common to both issues. It has to do with the fulfillment or otherwise of the sacrosanct provision of Section 138(1) of the Electoral Act by paragraphs 14 and 13(b) of the petition. In other words, the
provision will serve as the barometer to gauge the viability of both paragraphs. To this end, the provision becomes very handy. For its common relevance, it deserves to be plucked out, from its cocoon, verbatim ad literatim, thus:
138 (1) 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 provisions 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 lawfully excluded from the election.
The provision, which has fallen for interpretation in an avalanche of cases, donates to a party a right to challenge an election on any of the listed grounds, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332; Akeredolu v. Mimiko (2014) 1
NWLR (Pt. 1388) 402; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. I will use this sacrosanct provision as the necessary compass in the settlement of the two nagging issues in this cross-appeal.
Now, I kick off with a consideration of issue one. Here, the kernel of the cross-appellant’s grievance is that the averment in paragraph 14 of the petition amounted to a pre-election matter for which the trial tribunal was stripped of the necessary jurisdiction to entertain it. The cross-appellant’s agitation is deeply-rooted in law. Jurisdiction is the authority a court or tribunal has to adjudicate over a matter submitted to it. Where a court is drained of the requisite jurisdiction, its proceedings on a matter, no matter the quantum of diligence, brilliance, sophistry and transparency invested in it, will be trapped in the intractable vortex of a nullity, see Gwede v. INEC (supra); Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527. Thus, no court would cherish indulging in a juridical exercise whose destiny is a
nullity and, de jure, a wasted venture.
For ease of reference and appreciation, though at the expense of prolixity, it is important to extract the said paragraph 14, derobed of its particulars, wrapped in page 5, volume I, of the mountainous record, thus:
The 2nd respondent is not a person qualified to contest the election for the governorship of Lagos State as a candidate of the 3rd respondent as the 2nd respondent was not validly sponsored in that the 3rd respondent failed to comply with the provisions of the Electoral Act by giving the 1st respondent the mandatory 21 days notice of its governorship party primaries leading to the nomination and sponsorship of the 2nd respondent as its gubernatorial candidate in the gubernatorial election held in Lagos State on Saturday, 11th April, 2015, thereby contradicting Section 85 of the Electoral Act, 2010 as amended and Section 65(2)(b) of the 1999 Constitution.
I have juxtaposed the paragraph 14 with the outlined provision of Section 138(1) of the Electoral Act with a view to ascertaining if the former satisfied the requirements of the latter. Unarguably, the paragraph 14 smells of imprecision,
woolliness and verbosity vis-?-vis the succinct provision. The paragraph exhibits the height of inelegant drafting in relation to a ground for presenting a petition. Nevertheless, my understanding of it, in a resume form, is that the fourth cross-respondent, Mr. Dapo Akinwumi Ambode, was not qualified to contest the election, held on 11th April, 2015, as the gubernatorial candidate of the cross-appellant, the All Progressives Congress. The provisions of Section 177 and 182 of the Constitution, as amended, explicitly, enumerate the conditions a person must meet in order to be qualified to contest election for the office of a governor of a state, see PDP v. INEC (2014) 17 NWLR (Pt. 1347) 525. Nomination connotes “appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named”, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347.
?The law has classified nomination and sponsorship as pre-election matters, see PDP v. Onwe (2011) 4 NWLR (Pt. 1236) 166; Dingyadi v. INEC (supra); Akpamgbo-Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (Pt. 1466) 171.
?In the eyes of the law, qualification/disqualification
of a candidate for an election is an amphibious incident in that it appertains to pre-election and post-election matters. Put simply, a challenge to qualification/disqualification of a candidate enjoys the status of pre-election and post-election matters, see Gwede v. INEC (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124.
Thus, the law has endorsed the hybrid status of qualification/disqualification of a candidate in an election.
?Then, which court has the jurisdiction to entertain a challenge to qualification? The answer is discernible from Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90, wherein Onnoghen, JSC, observed:
? I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act, 2010 (as amended), is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest an election is both pre-election and election matter.
However, in the instant case, Section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an election tribunal by expressly making the issue of
qualification of a candidate to contest an election a ground in an election petition challenging or questioning the return of the winner of the said election. I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant election tribunals have jurisdiction to hear and determine.
The apex court has since re-echoed and re-affirmed this position of the law, see Wambai v. Donatus (supra)(2014) 14 NWLR (Pt. 1427) 223; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede v. INEC (supra); Akpamgbo-Okadigbo v. Chidi (No. 2) (supra).
It flows that the law allots/allocates concurrent jurisdiction to the regular courts, Federal High Court or High Court, on the one hand, and election tribunal, on the other hand, to adjudicate over qualification/disqualification of a candidate to contest an election. If a party decides to visit the regular courts for redress, then the law preserves his right to pursue his right beyond the holding of an election, see Gwede v. INEC (supra); Ikechukwu v. Nwoye
(2015) 3 NWLR (Pt. 1446) 367.
?On the authority of Gwede v. INEC (supra), a party can approach the regular courts on a pre-election matter even after election provided he acts timeously. The philosophical basis for this hallowed principle of law is to repel any injustice that may be inflicted on parties in electoral process. In sum, the first and second cross-respondents did not insult the law by incorporating paragraph 14, which questions the qualification of the fourth cross-respondent, in their petition.
The cross-appellant, in an avowed bid to earn victory on the issue, devoted paragraphs 3.33-3.47 at pages 17-22 of his brief of argument to castigating the decision in Wambai v. Donatus (supra). Alas, this Court is the forum non competens for these unwarranted strictures passed on the decision. The reason is not far-fetched. The decision is that of the Supreme Court. This court, being at the lower rung of the hierarchical ladder, even though penultimate, lacks the vires to engage in the reversal of the decision. To do so will constitute a judicial sacrilege of the doctrine of stare decisis et non quieta movere ? to stand by things decided, and not
to disturb settled points. No wonder, the apex court has labelled such untoward judicial exercise as a constitutional abomination, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347. Put starkly, I dishonour the inciting and enticing invitation of the cross-appellant to ignore the decision in Wambai v. Donatus on account of per incuriam. It is only the Supreme Court that is imbued with the jurisdiction to do so. For this Court, the decision is ex cathedra on co-ordinate jurisdiction of the election tribunals and high courts vis-?-vis qualification/disqualification of a candidate to vie for an election.
The cross-appellant implored this court to declare the paragraph 14 a pre-election matter cognisable only in the regular courts because it alluded to 21 days notice decreed in Section 85(1) of the Electoral Act. The cross-appellant made heavy weather of this point. I doubt if the mere mention of the notice takes the paragraph outside the four walls of qualification/disqualification recognised in Section 138(1)(a) of the Electoral Act. My doubt is fortified by the case of Dangana v. Usman (supra) where the mention of such notice did not take the ground
outside the perimeter of Section 138(1)(a) of the Electoral Act. I, therefore, decline to grant the supplication in the sense that it will constitute a defilement of the law.
The foregoing legal expositions, with respect, expose the poverty of the scintillating arguments of the cross-appellant on this issue. The paragraph 14 of the petition qualifies as a valid ground for querying the qualification of the fourth cross-respondent to contest the election. The trial tribunal is the forum competens for the first and second cross-respondents to ventilate their grouse on his qualification/disqualification. Put simply, the trial tribunal was clothed with jurisdiction over paragraph 14 of the petition. In effect, the trial tribunal was firma terra, in law, when it, at page 1271, volume II, of the expansive record, held: “In the result, we hold that paragraph 14 of the petition is competent and this tribunal has jurisdiction to adjudicate on it”. It will be a transgression of the law to tinker with this solemn finding done after due consultation with the law. In the end, I have no option than to resolve issue one against the cross-appellant and in favour of the
first and second cross-respondents.
Having dispensed with issue one, I proceed to tackle issue two. The heart of the issue is that paragraph 13(b) of the petition does not qualify as a ground to challenge the election of 11th April, 2015. The paragraph 13(b) of the petition, sought to be impugned by the cross-appellant, located between pages 4 and 5, volume I, of the elephantine record, reads:
b) That there are so many irregularities in respect of the use of the card reader during the election, as many polling units did not have the card reader or make use of the said card readers even where available. The petitioners specifically say that the following polling units are units where the card reader was not available or used even where available: 1. Epe, 2. Badagry, 3. Mushin, 4. Ikorodu, 5. Eti Osa, 6. Alimosho, 7. Ikeja, 8. Ibeju Lekki, 9. Lagos Island, 10. Apapa, 11. Ifako Ijaiye, 12. Kosofe, 13. Mainland, 14. Agege, 15. Somolu.
I have situated the paragraph with the prescription of Section 138(1) of the Electoral Act set out at the dawn of this judgment with a view to discovering its validity. Indisputably, the law mandates parties to
election petitions to adhere strictly to statutory forms in drafting their grounds of petitions, see Ojukwu v. Yar’adua (supra); Oshiomhole v. Airhiavbere (supra). I have read these authorities with the finery of a tooth comb. The case of Ojukwu v. Yar’adua (supra), lavishly and freely cited by the feuding parties to fetch the favour of the court, allows a petitioner to “use his own language to convey the exact meaning and purport of the subsection”, at 121, per Tobi, JSC. It follows that the authority, also, gives a petitioner the licence to paraphrase the grounds upon which an election can be challenged.
I have given a clinical examination to the content of paragraph 13(b) adumbrated above. To my mind, it does not, in the least, fit into any of the grounds catalogued in the inviolate provision of Section 138(1) of the Electoral Act. This is so even when the first and second cross-respondents, who factored it in as a ground, reap/harness from the benefit of choosing their words as magnanimously allowed by Ojukwu v. Yar’adua (supra). The paragraph displays a vitriolic attack on the irregularities germinating from the improper or non-user of the smart
card readers in the polling units chronicled at its bottom. Its content can, conveniently, serve as facts to buttress either grounds (b) or (c) in Section 138(1) of the Electoral Act. As it is, it has no life of its own as a ground. It endeavours to introduce the defects in the use of smart card readers. The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation ? the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42. Put the other way round, the extant Electoral Act, 2010, as amended, which predates the concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as a ground to challenge any election does not have its blessing, nay
Section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election it does not qualify as one.
The trial tribunal, in giving its imprimatur to the validity of paragraph 13(b) of the petition, at pages 1274-1275, volume II, of the wordy record, found:
Paragraph 13(b) of the petition is also founded on Section 138(1)(b) of the Electoral Act. Under this paragraph, the petitioners are challenging the election of the second respondent on the ground of irregularity in the use and/or non use of card readers. Even though the petitioners did not use the language of the Act, we are in agreement with them that in framing this relief there was no expansion in the purport of the Electoral Act in Section 138(1)(b). It is indisputable that a challenge to an election on the ground of irregularity is squarely within the confines of the Electoral Act, and we so hold. The objection with respect to paragraph 13(b) of the petition is therefore overruled.
This finding, with due reverence to the trial tribunal, flies in the face of the obvious and clear wordings of Section
138(1)(b) of the Electoral Act. The word “irregularity”, which the trial tribunal employed as the operative word, has no residence in the entire provision of Section 138(1) of the Electoral Act. The provision is clear and plain in its wordings. In this wise, the law insists that courts must deploy the literal rule in its interpretation, id est, the provision must be accorded its ordinary meaning without any embellishment, see Dangana v. Usman (supra); PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402; Ikechukwu v. Nwoye (supra).
?It is trite that the sacred duty of a court is jus dicere and not jus dare: to declare the law and not to make one, see UGWU v.. ARARUME (2007) 12 NWLR (Pt. 1048) 365. It is, with deference, an affront to the interpretative jurisdiction of the trial tribunal for it to import irregularity, which is alien to Section 138(1)(b) of the Electoral Act, as a cognisable ground under it. Besides, the finding takes to flight on confrontation with the origin and longevity of the concept of smart card readers which were highlighted above. On this premise, the finding is hostile to the law and liable to
vacation by this Court. At any rate, there is another reason which compels this court to interfere with the finding. The glaring absence of a relief to sustain the pseudo-ground, as rightly found by the trial tribunal, is another coup de grace in the sustenance of it. All in all, I resolve issue two in favour of the cross-appellant and against the first and second cross-respondents.
Before the final verdict, let me observe, obiter, that this cross-appeal brings to the fore the need for parties, qua counsel, to exhibit artistry, dexterity and meticulosity in drafting election petitions. Election petition is sui generis, see Oshiomhole v. Airhiavbere (supra); Ikechukwu v. Nwoye (supra); Oke v. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. It is a specie of proceeding which does not condone ordinarily pardonable blunders arising from even fallibility of human errors. The petition, which metamorphosed into the appeal, was poorly drafted disclosing lots of avoidable loopholes. That is not desirable in a keenly-contested poll like the one being challenged in the petition. The grounds, save that on
qualification, were inapposite and wanting in the necessary reliefs. The petition, from its birth, was destined to fail in limine! It is very unfortunate!!
On the whole, having resolved the two issues for and against the cross-appellant, the fate of the cross-appeal is obvious. It is partially-meritorious and succeeds in part. Consequently, I allow the cross-appeal in part. Accordingly, I affirm the portion of the trial tribunal’s decision declaring paragraph 14 of the petition as competent and triable by it. I set aside its part of the decision which approved paragraph 13(b) as a competent ground for presenting the petition. In lieu of it, I strike out the paragraph 13(b) of the petition on account of incompetence. The parties shall bear the respective costs they incurred in the prosecution and defence of the partially-successful cross-appeal.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with and abide by the lead Judgment of My Lord Obande Festus Ogbuinya, JCA that this cross-appeal succeeds in part only and in terms of the consequential orders contained in the lead judgment.
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EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the Judgment delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA. I am in agreement with his reasoning, conclusion and the orders therein.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearance
R.A.O Adegoke, Esq (with him Osasu Isibor
Esq.,Prince Eric Ogiegor, Esq.,Mrs Kikelomo
Abu,Miss Ekene Chuks-Okeke and Damilola
Asuni,Esq.)-For Cross Appellant
G.O.Giwa-Amu,Esq.(with him R.A.Obhafuoso,
Esq.)-For 1st Cross Appellant
Chief Richard Oma Ahonaruogho (with him
Niran Akinsanya,Esq.,A.M.Kofoye,Esq.,Oluyemi
Shoyoye,Esq.,T.J.Agoro,Esq.,Major Ogbonna
Ernest,Esq.,A.O.Adenekan,Esq. and Razaq
Adamu,Esq.)-For 2nd Cross Respondent
E.R.Emukpoeruo,Esq.,-For 3rd and 5th Cross
Respondents
Mrs Doyin Rhodes-Vivour (with her Anthony
Onwaeze,Esq and Adejimi Adeboye,Esq.)-For
4th Cross Respondent
Appearances
R. A. O Adegoke, Esq. (with him, Osasu Isibor, Esq, Prince Eric Ogiegor, Esq., Mrs. Kikelomo Abu, Miss. Ekene chuks – Okeke and Damilola Asuni, Esq.) for the Cross -appellant.For Appellant
AND
G. O. Giwa-Amu, Esq. (with him, R. A. Obhafuoso, Esq.) for the first Cross-respondent.
Chief Richard Oma Ahonaruogho (with him, Niran Akinsanya, Esq, A. M. Kofoye, Esq., Oluyemi Shoyoye, Esq., T. J. Agoro, Esq., Major Ogbonna Ernest, Esq., A. O. Adenekan, Esq. and Razak Adamu, Esq.) for the second cross-respondent.
E. R. Emukpoeruo, Esq., for the third and fifth cross-respondents.
Mrs. Doyin Rhodes-Vivour (with her, Anthony Onwaeze, Esq. and Adejimi Adeboye, Esq.) for the fourth cross- respondent.For Respondent
