FRANCIS DOUKPOLAGHA V. RUFUS ADA GEORGE & ORS.
In The Court of Appeal of Nigeria
Tuesday, the 7th day of April, 1992
Case Number: CA/PH/EP/1/92
MAMMAN NASIR Justice of The Court of Appeal of Nigeria
UTHMAN MOHAMMED Justice of The Court of Appeal of Nigeria
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Court of Appeal of Nigeria
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
SIMEON ADEBAYO ODUWOLE Justice of The Court of Appeal of Nigeria
FRANCIS DOUKPOLAGHA Appellant(s)
- RUFUS ADA GEORGE
2. NATIONAL ELECTORAL COMMISSION
3. NATIONAL REPUBLICAN CONVENTION Respondent(s)
NASIR, P.C.A. (Delivering the Leading Judgment): Before the election held on 14th December, 1991, the two registered political parties, the National Republican Convention (NRC) and the Social Democratic Party (SDP) were obliged by law; including the guidelines from the National Electoral Commission (NEC) to hold primary elections for the purposes of fielding candidates for the election to the office of Governors and membership of the State House of Assembly. In the Rivers State, both political parties held their primary elections (hereinafter referred to as the primaries). In the Rivers State, the primaries held for the nomination or election of the NRC flag bearer for the election of the Governor on 14th December, was a contest between eight contestants including Mr. Francis Doukpolagha and Mr. Rufus Ada George. The primaries are internal affairs of each political party in the sense that only registered members of the party are expected to vote or be voted for and the rules for the primary are based on the Constitution of the Party, the guidelines given by NEC or the Party. There is no outside interference even though NEC, the Nigeria Police and the State Security Service were expected to be present as observers (see generally paragraph 10-14 of the Petition). Be that as it may. The final result of the Primaries presented Mr. Rufus Ada George as the successful candidate and he contested the election as the flag bearer of the NRC. Mr. Francis Doukpolagha consistently protested. After the election, Mr. Rufus Ada George was successful and was elected as the Governor of the Rivers State.
Mr. F. Doukpolagha could not swallow his defeat at the Primaries. He brought a petition challenging the election of Mr. Rufus Ada George on the ground of what happened (i) in relation to NEC. (ii) in relation to the Primaries and (iii) for malpractices at the Governorship election. Mr. Doukpolagha has the right so to complain and to bring an election petition as a voter and/or a person who had voted at the election.
In his petition, he complained among other things, that:
(i) That the 1st Respondent gave false information in his nomination form that he was not affected by the provisions of Participation in Politics and Election (Prohibition) Act, Cap. 342 also known as Decree 25 of 1987. Governor of Rivers State in that he was a person affected by the provisions of Participation in Politics and Election (Prohibition) Act, Cap.342, 1990 Laws of the Federation of Nigeria, also known as Decree No. 25 of 1987; and
(ii) That the 1st Respondent was not qualified to contest the elections held on 14/12/91 because he did not win the primaries conducted by the 3rd Respondent on 5/12/91 to select a candidate to contest the governorship elections held on 14/12/91.
The 1st Respondent, for example, has concluded in paragraph 5 of his Reply that:
“5. This respondent will contend at the trial of this petition that this Honourable Tribunal has no jurisdiction to entertain or determine –
(a) any question whether the 1st respondent was or was not affected by the provisions of the Participation in Politics and Elections (Prohibition) Act.
(b) the question of, relating to, or concerned with, whether or not this respondent was the proper candidate to have been sponsored by the NRC, and
(c) in the alternative to (b), the question as to who ought to have been the candidate sponsored by the NRC save at the instance of the NRC.
At the trial both Chief F.R.A. Williams, SAN, for the 1st Respondent and Mr. S.A. Dappa-Addo, the Ag. Director of Civil Litigation, for the 2nd Respondent have raised preliminary issue that; per F.R.A. Williams:-
“(i) That the questions of law pleaded in paragraph 5 of the (1st)Respondent’s Reply shall be disposed of before trial;
(ii) That, in the alternative, the petition be struck out on the ground that it discloses no reasonable cause of action and is frivolous and an abuse of process of the court; and
(iii) That in the further alternative, the petition herein be struck out on the grounds set forth in the schedule to this motion on notice.
“(a) want of jurisdiction by the Tribunal to try the question whether the 1st Respondent is a person affected by Decree No. 25 of 1987.
(b) want of locus standi on the part of the petitioner to invoke the jurisdiction (if any) of this Honourable Tribunal to impugn the right of the 1st Respondent as the person sponsored by the National Republican Convention; and
(c) want of jurisdiction to try the question of, relating to, or connected with, whether or not the Respondent was the proper candidate to have been sponsored by the National Republican Convention.”
A similar motion was filed by learned counsel for the 2nd Respondents. On the 28th and 29th January, 1992 the two motions were heard by the Tribunal as an interlocutory issue and judgment was given on 10th February, 1992 in which the Tribunal declined jurisdiction on the following reasons, amongst others:-
(i) that the Governorship and Legislative Houses Election Tribunal is not the competent body to determine whether or not a person is banned or should be banned from participating in politics under Cap.342. The appropriate body to do so is either the 2nd Respondent or the Transition to Civil Rule Tribunal;
(ii) that Decree 50 of 1991 has not in any way modified or amended Cap. 342 to invest the Tribunal with jurisdiction to determine whether, or not a person should be banned from participation in politics or contesting elections;
(iii) that the Election Tribunal established under Decree 50 of 1991 has no power to review any declaration made by the 2nd Respondent or the Transition to Civil Rule Tribunal that a person is not affected by the provisions of Cap. 342.
(iv) that the Tribunal has no jurisdiction to consider any question relating to the primary elections that took place on 5/12/91; neither did it have jurisdiction to determine the question as to who should be sponsored by a political party to contest an election.
(v) that the Petition was not statute-barred as contended by the 2nd Respondent since the election against which the petition was filed was the one held on 14/12/91 and not the primary elections held on 5/12/91.
It is against the above background and the above judgment that the Appellant has now appealed before us.
This is an appeal against the decision that an election Tribunal established under section 88 of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991 (Decree No.50 of 1991; hereinafter called Decree 50) has no jurisdiction to review a declaration made by NEC or the Transition to Civil Rule Tribunal under the Participation in Politics and Elections (Prohibition) Act (Cap. 342 of the Laws of the Federation of Nigeria and formerly Decree 25 of 1987). Even though learned counsel had formulated issues for determination in their written Briefs I believe that the central core is this issue of jurisdiction, every other consideration stands or falls with it. Both in the written Brief and before us Professor Adesanya for the Appellant had held the view that a qualifying certificate issued by NEC under Cap. 342 did not exclude the jurisdiction of an Election Tribunal to review the matter and he did not also accept that the sponsorship of candidate by a political party was conclusive for the political party’s nomination of a candidate. The learned Professor has referred us to section 88 of Decree 50 on the establishment of the Election Tribunal which the section said shall –
“to the exclusion of any court or tribunal have original jurisdiction to hear and determine (a) petitions as to whether any person has been validly elected to the office of Governor …”
He also referred to section 91(1)(a) of whether a candidate was not qualified or was disqualified. Learned counsel referred us to the judgment of the Tribunal (pages 19 and 18 of the judgment; now pages 101 and 100 of the Record). He submitted that the proviso to section 91(2) of Decree 50 applied only when there was a decision to NEC that a person had been banned or disqualified and it did not say that a decision by NEC that a person was qualified could not be reviewed. Further reference was made to section 34 which deals with qualifications. Learned counsel challenged the Tribunal’s stand that Cap. 342 was a special legislation as opposed to Decree 50 which was general. The learned Professor referred us to a contrary decision of Coker, JSC., Chairman of the Owerri Election Tribunal in Dr. Alex A.A. Obi v. Chief E. Enwerem and 2 Ors, delivered on 16th February, 1992 at Owerri.
Chief Williams in his reply to the above referred to his written Brief and in particular to page 32 under Part 5 on jurisdiction of the Election Tribunal. He referred to the elections which may be questioned by Election Tribunal. Mr. S.K. Dappa-Addo for the 2nd Respondent referred to his written Brief which he adopted. Learned counsel associated himself with the submissions of Chief Williams and he further emphasized that the Appellant was quarrelling with the validity of nomination which cannot now be challenged by virtue of the proviso to section 91(1) of Decree 50.
The dispute here in a nutshell is whether the powers vested under Cap. 342 can be reviewed or exercised by an election Tribunal. We need to examine all relevant legislations. I start with Cap.342. It was an Act (a Decree at the time it was made) to prohibit certain persons and office holders from contesting or holding public office and to empower the National Electoral Commission to disqualify persons as having been affected by the provisions of the Act (see the Long Title in Cap.342). It was also enacted as stated in the preamble in the said Act, when it was enacted as Decree 25 of 1987, in order to avoid a repetition of the political misdeeds of previous civilian administrations by making “extra ordinary but necessary provisions for the purpose of laying a sound and proper foundation for the future democratic order.” The preamble further listed a number of category of public officers who have held office in the past and found guilty of diverse offences and other public officers who have not committed any crime or misconduct and it was concluded that all such officers and more should be banned or disqualified. This power was given to NEC and a power to review was given to the Transition to Civil Rule Tribunal established under the Transition to Civil Rule (Political Programme) Decree, 1987 (No. 19 of 1987). The purpose of Cap.342 is not in dispute.
What is in dispute is whether the jurisdiction therein is shared or is now capable of being shared with the election Tribunal. The provisions of Cap.342 may be summarized as follows:-
1(a) Persons and office holders specified in the First Schedule are banned for life from holding any elective office or post either in the government or in a political party (section 1(1).
(b) Persons and office holders specified in the Second Schedule are disqualified from contesting or seeking any public office or post during the Transition Period (section 1(2).
(c) Persons affected by Cap.342 are also prohibited from sponsoring, canvassing or campaigning for or on behalf of himself or others.
2(1) NEC, either upon the objection of any persons or on its own motion may declare that any person:
(a) nominated to contest any office or post either in the government or in any political party; or
(b) elected to any office or post, either in the government or in any political party; or
(c) nominated or appointed to any public office or post in any political party; is a person affected by the Act.
2. A declaration made as stated above shall have the effect of nullifying such nomination, electing or appointment. (Section 2(1) and (2)
3. Any member of the public who is aware that a person nominated to contest any election or appointed or elected to an office is a person banned or disqualified may file an objection to NEC to nullify such nomination, election or appointment (Section 3(1) and (2)).
Subsection (9) of section 3 provides that no nomination shall be avoided until an objection is sustained by NEC. Subsection (10) is very clear. It provides that:
“3(10) Where a person has been elected before an objection is sustained by the Commission pursuant to this section, the Commission shall declare the election null and void and shall take necessary steps to conduct a new election.”
It is clear that section 3 vests almost absolute power in NEC as to the banning or disqualifying of any person under Cap.342. There are two exceptions or may be one condition and one exception. In the condition NEC must act on receipt of an objection from any person. It must investigate even though the final power to ban or disqualify is still vested in NEC. The exception is that provided under section 5(1) which states:
“5(1) Any person dissatisfied with any declaration made by the Commission under this Act may within thirty days of such declaration apply to the Tribunal for a review of the declaration.”
The decision of the Tribunal, that is the Transition to Civil Rule Tribunal constituted under the Transition to Civil Rule (Political Programme) Act is final. Section 6, which is very plain and clear, provides:-
“6. In any matter referred to the Tribunal under this Act, the decision of the Tribunal shall be final and binding and no other court of law or tribunal shall have jurisdiction to ‘entertain any action by way of declaration or review of the issue of prerogative orders or the equitable remedy of injunction of specific performance or by way of appeal or otherwise in respect of any matter arising out of and pertaining to the provisions of this Act.”
The above section ousts the jurisdiction of any court or tribunal. As if this ouster is not enough section 7 of the Act further made it clear that no proceedings shall be instituted in any court or tribunal except as provided by the Act. In particular section 7(4) states that:
“7(4) The jurisdiction conferred on the Tribunal by this Act shall be exercised by it to the exclusion of all other courts of law or tribunals in Nigeria.”
I doubt if any provision on ouster of jurisdiction can be made clearer than in the above sections of Cap.342.
The next consideration is that of the provisions of Decree 50. The main argument of Professor Adesanya was that the Election Tribunal established under section 88 of Decree 50 can share jurisdiction given by Cap.342. Let us consider the relevant sections of Decree 50. Section 88(1) of Decree 50 provides:-
“88(1) There shall be established for each State one or more Election Tribunals to be known as the Governorships and Legislative Houses Election Tribunal which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine;
(a) petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House;”
This section gives exclusive power to an Election Tribunal to hear an election petition. It is not a power to conduct “all trials” in respect of elections nor does it make the Election Tribunal the authority for decisions on preliminary matters before elections are held. The next section for consideration is section 91 which reads as follows:-
“91(1) An election may be questioned on the following grounds:-
(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected to the office of Governor or as a member of a Legislative House:
Provided that the power of the Chief Electoral Officer of the Federation or any officer delegated by him in that behalf as to the validity of nominations under paragraph 5(3) of Schedule 5 to this Decree shall not be ground for such election petition:
(b) that the election was invalid by reason of corrupt practices of offences against this Decree; or (c) that the respondent was not duly elected by a majority of lawful votes at the election.
(2) An act or omission which is contrary to an instruction or direction of the commission or of any officer appointed for the purpose of the election but which is not contrary to this Decree shall not of itself be a ground upon which the election may be questioned:
Provided that nothing in paragraph (a) of subsection (I) of this section shall affect or invalidate any decision of the National Electoral Commission or of the Transition to Civil Rule Tribunal that a person has been banned or disqualified pursuant to or under the Participation in Politics and Elections (Prohibition) Act, as amended.”
For our purpose the important and relevant provisions are in section 91(1)(a) and 91(2) with its “proviso.” This section sets out the grounds on which an election may be questioned. It does not by itself, like section 88, disqualify any person. The provisions for the disqualifications are provided by section 34(1) of Decree 50. This section provides, as far as relevant to this Appeal, as follows:-
“34(1) No person shall be qualified for election to the office of Governor if-
(g) he is a person banned or disqualified from participating in politics, primaries and elections in accordance with the Participation in Politics and Elections (Prohibition) Act, as amended and the Participation in Politics and Election (Miscellaneous Provision;) Decree 1991.”
It is important to highlight the phrase “in accordance with.” The ban or disqualification under consideration in the section is that done in accordance with the powers or jurisdiction given by Participation in Politics and Elections (Prohibition) Act i.e. Cap.342. The only authority spelt out in the said legislation with power to ban or disqualify a person is NEC with a review power vested in the Transition to Civil Rule Tribunal. The proviso to section 91(1)(a) is clear that the exercise of the power of Chief Electoral Officer of the Federation or his agents under paragraph 5(3) of Schedule 5 as to the validity of nomination cannot be a ground for election petition. This is a power vested in the Chief Electoral Officer by Cap.50. It is independent of any other authority.
On the other hand the proviso to section 91(2) is clear that any decision of NEC or of the Transition to Civil Rule Tribunal under Cap.342 cannot be affected or invalidated by the exercise of the powers of the Election Tribunal under section 91(1)(a) – that is on the ground that the person was not qualified or was disqualified at the time of the election. There are many grounds for disqualification under section 34 of Decree 50 such as citizenship of another country, being a lunatic or bankrupt, membership of secret society, etc. All these grounds for disqualification can and must be considered by an Election Tribunal but that power in respect of banning or disqualifying under Cap.342 has been vested and exclusively reserved for NEC subject to review by the Transition to Civil Rule Tribunal.
While section 34 of Decree 50 dealt with the person banned or disqualified section 83(1)(a) is in respect of persons not affected. It provides:
“83(1) A person shall not be qualified as a candidate to contest any Governorship or House of Assembly election unless:-
(a) he is a person not banned or prohibited from participating in politics, primaries and elections in accordance with the Participation in Politics and Elections (Prohibition) Act, as amended.” What paragraph (a) of subsection (I) of section 83 is saying is that if a person is not banned or disqualified he can contest election. The only way to know this is to consult NEC under Cap.342.
On its part NEC must certify to the applicant that he was not affected or he was not banned or disqualified. This positive certificate is a sine qua non to a candidate wishing to contest election. This decision of NEC can only be challenged before the Transition to Civil Rule Tribunal. From all the above it is wrong for learned counsel to submit that the election Tribunal can share the screening powers of NEC under Cap.342.
This is not the first time that provisions similar to those in Cap.342 were enacted in this country. Chief Williams has drawn our attention to such legislations in his written Brief. In particular, comparison was made between the provisions of Decree 50 and those of Decree No.37 on Local Government Elections. These provisions are in all material particulars identical. Section 91 of Decree 50 is identical to section 34 of Decree 37. Section 34 has been interpreted by many decisions of this court. In particular all the previous decisions have been reconsidered and applied in the case of Chief Eric B. Aso v. Rufus Ada George and 3 Ors. (CA/PH//EP/2/92) in which judgment was delivered on 6th April 1992 and also in greater details in the judgment of this court in Dr. A.A.A. Obi v. Chief Evans Enwerem and Ors. (CA/PH/EP/3/92) delivered on 6th April, 1992. In the last case Uthman Mohammed, J.C.A. very lucidly and, in my opinion, accurately stated, after considering all the relevant decided cases and the legislation under review, as follows:-
“The intention of the legislature is clear in the words recorded above. This has strengthened my resolve that Cap.342 is a special legislation promulgated specifically on the banning and disqualification of former public office holders. On reading the sections of the Act to the end, one is easily convinced that no other court or tribunal is meant to share with NEC the powers of dealing with the disqualification of any candidate who is seeking to be or has been elected to a public office (see pages 24 – 25 of the Judgment).”
I entirely share the above views.
In view of the foregoing I am of the view that this appeal lacks merit and it is hereby dismissed. No useful purpose can be served in further consideration of this appeal. The judgment of the Election Tribunal is hereby upheld. I affirm the election of Mr. Rufus George as Governor of Rivers State. I award costs of N300.00 to 1st Respondent and costs of N300.00 to 2nd and 3rd Respondents jointly.
MOHAMMED, J.C.A.: I entirely agree with the opinion of my Lord, Nasir, President of the Court of Appeal in the judgment just read. I have had the privilege of reading it, in draft, before now. This Court had decided that the question whether or not a person has been banned or disqualified from participating in politics, primaries and elections in accordance with Participation in Politics and Elections (Prohibition) Act, Cap.342, is determined only by NEC – see Chief Eric B. Aso v. Mr. Rufus Ada George & 3 Ors. CA/PH/EP/2/92 and Dr. A.A.A. Obi v. Chief Evans Enwerem & 2 Ors. CA/PH/EP/3/92, both delivered on 6/4/92.
For the above reasons and the fuller reasons in the lead judgment, I shall also dismiss this appeal. It is accordingly dismissed. I abide by the orders made on costs.
KATSINA-ALU, J.C.A.: I agree with my Lord, Hon. Justice M. Nasir, President Court of Appeal, that this appeal has no merit and ought to be dismissed. The issue of jurisdiction of Election Tribunal to determine whether a person is banned or disqualified to participate in political elections has been settled by this Court in the cases of Dr. Obi v. Chief Enwerem CA/PH/EP/3/92 and Chief Aso v. Mr. Rufus Ada George & 3 Ors., CA/PH/EP/2/92 both delivered in this Court on 6/4/92. Consequently this appeal is dismissed with costs as assessed in the lead judgment.
EDOZIE, J.C.A.: I read in advance the lead judgment just delivered by my learned brother Mamman Nasir, the Honourable President of the Court of Appeal. I agree with him that the appeal is devoid of substance. For the reasons contained in the lead judgment the appeal is dismissed by me. I endorse the consequential orders made.
ODUWOLE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by the Honourable President of this Court, Mamman Nasir and I am fully satisfied that all the issues canvassed by all the learned counsel were adequately dealt with. I am therefore in complete agreement with the reasonings and conclusions therein. The appeal will be and is hereby dismissed. I make the same order as to costs.
Professor S.A. Adesanya;
P. Amara) For Appellant
Chief F.R.A. Williams. SAN;
A.R. George, and
S.R. Dappa-Addo, Ag. Director of Civil Litigation, Ministry of Justice, Rivers State For Respondent