In the current democratic dispensation, Nigeria’s Electoral Jurisprudence has experienced spontaneous and radical changes vide continuous Electoral Body’s regulations, statutory amendment and judicial interpretations.
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It suffices to mention that the conduct of election in Nigeria and petitions relating thereto is highly regulated by the 1999 Constitution and the Electoral Act 2010 (as amended). It is against this backdrop that the National Assembly have continuously amended the provisions of the Constitution to either alter or introduce paragraphs that will ultimately ensure an apparent seamless trial;hence the introduction of S. 285(8) in the Fourth Alteration Act 2017.
The Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration No. 21) Act, 2017 came into force on the 7th day of June, 2018 which altered Section 285 of the 1999 Constitution of the Federal Republic of Nigeria. Prior to the its application, it appears that Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) akin to the tune of Section 285 (8) of the 1999 Constitution; existed and operated as a lone wolf in the jungle.
Paragraph 12(5) reads as follows:
‘A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition’
The purport of the above provision simply mandates a respondent who may for any reason exercise his right of objection to the petition to file same; to be heard alongside the determination of the petition. Put differently, the striking provisions of Paragraph 12(5) which the word ‘shall’ was used, inputted mandatories for objections to be heard along with the substantive Petition. This has however occasioned a scenario that where an objection (of whatever kind) is raised in an election petition, the Election Tribunal or Court is striped with the authority to determine the objection at the point it was raised. The Tribunal or Court will be required to defer its ruling and incorporate same in its final judgement.
In interpreting a provision of a statute, recourse could be made to the mischief it tried to cure; among other things. Paragraph 12(5) would readily fall into this category as one’s mind is averted to the mischief it sought to cure. In a full analysis of this provision, Oseji J.C.A wrote:
‘Given the chequered history of election petitions in this country and the use and abuse of preliminary objections to scuttle or frustrate the hearing of Petitions on the merit and leading to some Petitions outliving the four year term of an elected candidate, it became not only desirable but imperative for the legislature to intervene and restore the sanity to our judicial process as it relates to Election Petitions. Hence, the mischief Paragraph 12(5) seeks to cure to ensure that objections raised to a Petition do not delay, impede, derail or frustrate the determination of an election Petition on the merit, by undue and unwarranted delay occasioned by a preliminary objection.’
The certainty of the mischief Paragraph 12(5) have come to cure in the jurisprudence of Election Petitions is now clear in the light of above. However, Paragraph 53(5) of same schedule also provided that
‘An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.’
The interpretation of this provision is clear and unambiguous. It is also clear that the applications for Paragraph 12(5) and 53(5) would heavily conflict each other and casts the rays of uncertainty. Although Paragraph 53(5) was never repealed, the law is that the provisions of the later enactment amend the earlier so far as necessary to remove the inconsistency between them; bearing in mind that Paragraph 53(5) and 12(5) came into effect on the 20th August and 29th October, 2010 respectively. Paragraph 12(5) may thus be considered supreme!!!
Series of judicial surgeries have been carried on Paragraph 12(5) in recent times. An example of such occasion is the case of Senator Dr. Arthur Okowa v. Great Ovedje Ogboru Appeal No.: CA/B/EPT/181/2015 (unreported). The Court of Appeal, Benin Judicial Division in dissecting Paragraph 12(5) noted that the guiding principles of interpretation of Statutes, the amendment has to be construed liberally and beneficially so as to promote the suppression of the mischief clearly sought to be remedied. The provision of Paragraph 53(5) notwithstanding, full effort must be given to Paragraph 12(5) of the First Schedule.
In what appears to be the ultimate judicial test was in WIKE EZENWO NYESOM V. HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2015) LPELR-41646(CA), the Appellant canvassed that the failure of the Election Tribunal to rule on its application contending that the Petitioners lacked locus standi to present the Petition is a breach of his right to fair hearing. The Abuja Judicial Division of the Court of Appeal pronounced that:
….. Tribunals are enjoined to hear motions at pre-hearing stages, but wherein the opinion of the Court is, it is not feasible or extreme circumstances exist, the Motion can be heard outside the pre-hearing stages. In this instance, the Tribunal has not given any reason, nor has it stated any exceptional circumstances requiring the Ruling on the said issues to be deferred to the hearing of the Petition. This Court cannot speculate as to those circumstances. But with the overwhelming importance of deciding on locus standi and service of originating processes, which are crucial and so go to the root of the Petition itself, they ought to have been pronounced upon then and not deferred until the hearing of the Petition. Once there is no locus standi to bring the Petition, it will be a worthless exercise hearing it. In the circumstances Issues 1, 3 and 4 are resolved in favour of the appellant in so far as they relate to the postponement of the Ruling. The Tribunal is ordered to resolve same before hearing commences, in an accelerated manner…
In this instant case, the court pointed out that Paragraph 12(5) would not apply where the motions (objections) contains issues so fundamental and of overwhelming importance. Issues that affect the jurisdiction of the court that is, locus standi and service of originating processes etc, is of overwhelming importance.
Conclusions from the above can be drawn to be that the Court of Appeal while interpreting the applicability of Paragraph 12(5) has precluded it from applying to objections that contain issues that affect the jurisdiction of the court and I dare to say that the mischief has not been fully cured.
It is in a bid to fully cure this mischief Section 285(8) of the 1999 Constitution was introduced on 7th June, 2018. It provides as follows:
Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or court shall suspend its ruling and deliver it at the stage of final judgement.
It is quite clear that the mission of Section 285(8) is to uproot what is remaining of the use of objections to stall proceedings and sanitise same. However it is also true that, Section 285(8) is an affront on the judicial powers of the court and the right to fair hearing as enshrined by the 1999 Constitution. A classical instance would be where a petition was filed outside the constitutional time frame, or alleges commission of crime and such persons were not joined in the petition. The purport of this provision would thus mean that the tribunal/court will have to determine the petition even when objections has been raised as to the competence of the petition or an objection has been raised against trial of persons who are either unknown or not joined to the petition.
More so, the tribunal as a constitutional creation has been stripped of its jurisdiction to determine whether it has jurisdiction whenever called upon to do so. In simpler words, where the issue of jurisdiction is raised, the tribunal can only tarry through the proceedings even if at the end of the proceedings it concludes by saying “…the court lacks jurisdiction”. This is the greatest danger of all times. It is quite unpleasant to also state that section 285 of the constitution contradicts to a very large extent the provisions of section 6(6) of the constitution which donates to the high courts unlimited jurisdiction to hear and determine any civil and criminal proceedings under any law of the state.
Furthermore, there is no gainsaying that the jurisdiction of the court is the life and bloodline of every proceedings before it; and as such, proceedings conducted devoid of the court’s jurisdiction however well is to null. If this is the case, why would an election tribunal be mandated to fold its arms where its jurisdiction is non-existence? Would it not amount to waste of judicial time, energy and taxpayers’ money for a tribunal to conduct a proceeding knowing that it has no jurisdiction? Would it not be a denial of hair hearing to try persons accused but not joined as parties? Answers to these questions must be provided one way or the other if justice must be done and seen to be done.
By Ikechukwu Onuoma Esq, Managing Solicitor Obra Legal
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