Justice Zainab Bulkachuwa, President Court of Appeal

A single decision of the Governorship Election Tribunal of Lagos State (here inafter referred to as the “trial tribunal”), in Petition No. Gov./EPT./L/15/2015, delivered on July1, 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 April 11, 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, and solicited for the some reliefs. 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, wherein it entreated the trial tribunal to strike out or dismiss the petition for lack of jurisdiction on the grounds that:

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;
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;
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. 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”. 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. 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.

In the Cross-Appellant’s brief of argument, it distilled two issues for determination to wit:

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.
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).
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, could not add or subtract from the qualification on those provisions. He relied on INEC v. MUSA (2003) 3 NWLR (Pt. 806) 72; (2003) LPELR-1515(SC) 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; (1984) LPELR-1437(SC), 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 for the view. He noted that invalid nomination qualified as pre-election matter. He cited Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; (2011) LPELR-950(SC) 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 criticised the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) 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 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 insisted that the trial tribunal rightly applied the ratio decidendi in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC). 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 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 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.

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 (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) and Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED) 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 adopted the submission of the Cross-Appellant who had the locus standi to question his nomination obtained in a primary election.

Resolution of the issues

The Court in determining issue 1 of the appeal considered the provision of Section 138(1) of the Electoral Act. The Court noted that 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; (2013) LPELR-19762(SC). The Court noted that 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 Court stated that 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 Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50; (2012) LPELR-7827(SC) (CONSOLIDATED), Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; (2014) LPELR-24217(SC. Thus, no Court would cherish indulging in a juridical exercise whose destiny is a nullity and, de jure, a wasted venture. The Court further stated that 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. The Court held that 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; (2011) LPELR-950(SC). The Court further held that the law has classified nomination and sponsorship as pre-election matters. The Court held further that 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 postelection 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. The Court then asked which Court has the jurisdiction to entertain a challenge to qualification? The answer the Court held is discernible from Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED).

The Court held that 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 Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367. On the authority of Gwede v. INEC (2015) 242 LRCN 138, a party can approach the regular Courts on a pre-election matter even after election provided he acts timeously. The Court noted that 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 Court held that 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 Court dishonoured the inciting and enticing invitation of the Cross-Appellant to ignore the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) on account of per incuriam. The Court noted only the Supreme Court that is imbued with the jurisdiction to do so. In the end, the Court resolved issue one against the Cross-Appellant and in favour of the first and second Cross-Respondents.

The Court noted that the heart of issue 2 is that Paragraph 13(b) of the petition does not qualify as a ground to challenge the election of 11th April, 2015. In considering this issue, the Court situated the Paragraph with the prescription of Section 138(1) of the Electoral with a view to discovering its validity. The Court noted that indisputably, the law mandates parties to election petitions to adhere strictly to statutory forms in drafting their grounds of petitions. The Court noted that the case of Ojukwu v. Yar ‘adua (2009) 12 NWLR (Pt. 1154) 50; (2009) LPELR-2403(SC) 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. The Court further noted the authority, also, gives a petitioner the licence to paraphrase the grounds upon which an election can be challenged. The Court held that the content of Paragraph 13(b) does not, in the least, fit into any of the grounds catalogued in the inviolate provision of Section 138(1) of the Electoral Act. Issue 2 was resolved in favour of the Cross-Appellant and against the first and second Cross-Respondents.

On the whole, having resolved the two issues for and against the Cross-Appellant, the Court held that the appeal was partially-meritorious and succeeds in part. Consequently, the Court allowed the cross-appeal in part. Accordingly, the Court affirmed the portion of the trial tribunal’s decision declaring Paragraph 14 of the petition as competent and triable by it. The Court aside its part of the decision which approved Paragraph 13(b) as a competent ground for presenting the petition. In lieu of it, it struck out the Paragraph 13(b) of the petition on account of incompetence.

Edited by LawPavilion, LawPavilion Citation: (2015) LPELR-25668(CA)

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