ADAMU MUHAMMED & ANOR V INEC & ORS

Legalpedia Citation: (2015-08) Legalpedia (CA) 11297

In the Court of Appeal

HOLDEN AT YOLA

Mon Aug 31, 2015

Suit Number: CA/YL/EPT/TRS/SHA/49/2015

CORAM

PARTIES

ADAMU MUHAMMED & ANOR

APPELLANTS

INEC & ORS

RESPONDENTS

AREA(S) OF LAW

APPEALS, JURISDICTION, JUDICIAL PRECEDENT, LAW OF EVIDENCE, ELECTORAL LAW, CIVIL PROCEDURAL LAW, RULES OF STATUTORY INTERPRETATION, PRACTICE AND PRECEDURE

SUMMARY OF FACTS

This Appeal is predicated on the Ruling of the National and State Houses of Assembly Election Tribunal of Taraba State sitting in Jalingo delivered on 13th July, 2015. The facts of the case before the Tribunal are that the 1st Appellant was a candidate in the Election conducted by the 1st Respondent seeking to occupy the seat of member representing Ibi Constituency in the Taraba State House of Assembly on the All Progressive’s Congress. After the election, the 1st Respondent declared the 3rd Respondent as the duly elected candidate to occupy the seat. Not satisfied with the results so declared, the Appellants presented a Petition before the Tribunal challenging the election and return of the 3rd Respondent. Upon being served, the 3rd Respondent filed a Reply to the Petition in line with Paragraph 12 of the First Schedule to the Electoral Act, 2010 (as amended) on 27-05-15. Therein, he set down a “List of objection” to votes cast in nine Polling Units as highlighted in paragraphs 31-54 of the said Reply pursuant to Paragraph 15 of the First Schedule to the Electoral Act, 2010 (as amended). Thereafter, the Appellants challenged the competence of the “List of objection” by way of a motion on notice upon grounds as set out in the motion paper. After hearing the parties, the Tribunal dismissed the application and determined that the “List of objection” is competent within the context of Paragraph 15 of the First Schedule to the Electoral Act, 2010, (as amended). Yet again dissatisfied, the Appellants filed an Appeal vide a Notice of Appeal to the instant court.

HELD

Appeal dismissed.

ISSUES

1.  Whether the learned Judges of the Tribunal below were right when they held that the Appellant’s objection to the competence of the 3rd Respondent’s List of objections failed for the reason that the case of Ogboru V Uduaghan (2012) ALL FWLR (Pt. 651) 1475 1513-1514 Paras A-B cited and relied upon by the Appellants had been set aside by the Supreme Court.
2.    Whether having regard to the provisions of Paragraph 15 of the First Schedule to the Electoral Act, 2010 (as amended), Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 68(1), 133(1) and 137(3) of the Electoral Act, 2010 (as amended), the 3rd Respondent’s List of objections incorporated at paragraphs 31-54 of the 3rd Respondent’s Reply to the Petition is competent.

RATIONES DECIDENDI

JURISDICTION – HOW COURTS BECOME CLOAK WITH JURISDICTION

The Constitution and statutes which establish courts and tribunals cloak them with the relevant powers and jurisdiction of adjudication, which powers are both substantive and procedural. The jurisdiction of an Election Tribunal as stipulated in Section 285(1) of the 1999 Constitution (as amended) reads:

“285 (1) There shall be established for each State of the Federation and Federal Capital Territory, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether –

(a) any person has been validly elected as a member of the National Assembly; or

(b) any person has been validly elected as a member of the House of Assembly of a State.

PER – JUMMAI HANNATU SANKEY, J.C.A.

JURISDICTION – MEANING OF JURISDICTION

Jurisdiction is the authority which a court or tribunal has to decide matters that are litigated before it or take cognizance of the matters presented in a formal way for its decision. Such authority of the court/tribunal is circumscribed by the Statute creating the court/tribunal itself or it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the court/tribunal can entertain the suit or the issue placed before it. All these touch on the legal authority of the court to adjudicate in a matter. Thus, jurisdiction is fundamental and is the centre pin upon which the entire litigation hinges. See Dingyadi V INEC (2011) LPELR-950(SC); Rossek V ACB Ltd (1993) 8 NWLR (Pt. 312) 382; & Madukolu V Nkemdilim(1962) 2 SCNLR 341. PER – JUMMAI HANNATU SANKEY, J.C.A.

 

 

STARE DECISIS – WHETHER OR NOT THE COURT OF APPEAL CAN REVIEW THE DECISION OF THE SUPREME COURT

On the second level, this is a matter in which the findings of an earlier Tribunal in Ogboru V Uduaghan’s case, which were appealed against at the Court of Appeal Benin Division and ultimately to the Supreme Court, were declared null and void by the latter Court. To now require of this Court to review the decision of the Apex Court on the unconvincing and feeble ground that it did not pronounce directly on certain issues canvassed therein is to encourage nothing less than judicial rascality, leading to uncertainty of the law and anarchy in the system. PER – JUMMAI HANNATU SANKEY, J.C.A.

STARE DECISIS – THE DOCTRINE OF STARE DECISIS

Clearly, the Tribunal cannot be faulted on this, as this is the very basis and purport of the doctrine of stare decisis et non quieta movera or judicial precedent. The meaning and import is for lower courts to abide by former precedents where the same points come up again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case, and it precludes judges of subordinate courts from changing what has been determined. In Dingyadi V INEC (2011) LPELR-950(SC) at pages 57-58, paras E-D, the Supreme Court, per Adekeye, JSC, held as follows:

“Under the doctrine of stare decisis, lower courts are bound by the doctrine of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All courts established under the constitution derive their powers and authority from the constitution. The hierarchy of courts shows the limit and powers of each court. It is to ensure that hierarchy of the court is never in issue. See Mohammed V Olawunmi (1993) 4 NWLR (Pt. 287) 254; 7-Up Bottling co. Ltd. V Abiola & Sons (Nig.) Ltd (1995) 3 NWLR (Pt. 883) pg. 257; Osho V Foreign finance Corporation (1991) 4 NWLR (Pt. 184) pg 157; Dalhatu V Turaki (2003) 15 NWLR (Pt. 843) pg. 301; University of Lagos V Olaniyan (1985) 1 NWLR (Pt. 1) pg. 156. The doctrine of judicial precedent does not involve an exercise of judicial discretion at all – it is mandatory. Amaechi V INEC (2008) 5 NWLR (Pt. 1080) pg. 227.”

PER – JUMMAI HANNATU SANKEY, J.C.A.

STARE DECISIS – THE DECISION OF THE APEX COURT IS BINDING ON ALL SUBORDINATE COURTS

Thus, the law is that the decision of the Apex court in the hierarchy of courts, which to us is the Supreme Court, is not only superior, but binds all subordinate courts, including courts exercising appellate jurisdiction. Consequently, it is the law that a decision of a court of competent jurisdiction, no matter that it seems palpably null and void, unattractive or insupportable, remains good law and uncompromisingly binding until set aside by a superior court of competent jurisdiction. This rule is designed to ensure uniformity in decision making, foster stability and enhance the development of a consistent and coherent body of law, as well as to assure equality of treatment for litigants similarly situated. See: SPDC Nig. Ltd V Ezeukwu (2010) LPELR-4911(CA) 1 at 28; Abacha V Fawehinmi (2000) LPELR-14(SC); (2000) 6 NWLR (Pt. 660) 228; Babatunde V Olatunji (2000) 2 NWLR (Pt. 646) 557; & Ezeokafor V Ezeilo (1999) 9 NWLR (Pt. 619) 369. PER – JUMMAI HANNATU SANKEY, J.C.A.

ACADEMIC ISSUES – WHETHER OR NOT THE COURT INDULGES IN ACADEMIC ISSUES

Furthermore, since what was directly in issue before the Tribunal in the instant case was the applicability of the decision of the Court of Appeal in Ogboru V Uduaghan (supra), which decision had declared Paragraph 15 unconstitutional, and which, if applied to this case would make paragraphs 31-54 of the Respondent’s Reply to the Petition invalid; the said decision, having been nullified, rendered the issue academic before the Tribunal, as it now does before this Court. See Adeogun V Fashogbun (2008) LPELR-131(SC) 1 at 33; (2008) 17 NWLR (Pt. 1115) 149 where Niki Tobi, JSC, intoned in these words:

“A court does not indulge itself in dealing with and considering academic questions/issues. This is because academic and hypothetical issues or questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in the administration of justice. This is because they do not relate to any relief.”

See also Owners of the MV “Arabella” V NAIC (2008) LPELR-2848(SC) (2008) 11 NWLR (Pt. 1097) 182. PER – JUMMAI HANNATU SANKEY, J.C.A.

INTEPRETATION – THE APPLICABILITY OF PARAGRAPH 15 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010

Since the crux of this Appeal calls for the interpretation of Paragraph 15 of the First Schedule to the Electoral Act, 2010 (as amended) vis a vis paragraphs 31-54 of the 3rd Respondent’s Reply to the Petition, it is imperative to set out the provision for ease of reference. It states:

15. “When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election,the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.” (Emphasis mine).

Evidently, this provision is applicable where a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election. PER – JUMMAI HANNATU SANKEY, J.C.A.

BURDEN OF PROOF – BURDEN OF A RESPONDENT TO PROVE WHERE HE CONTENDS THAT THE PETITIONER DID NOT WHEN THE HIGHEST VALID VOTES CAST

Thus, a burden is also placed on a respondent who alleges that, contrary to contention of a petitioner, he (the petitioner) did not win, to state the particulars of the votes credited to the petitioner which he objects to; the reason(s) for his objection, and how he intends to establish at the trial that the petitioner was not entitled to succeed or to be returned, as claimed in the Petition. In the event that the party defending the election or return fails to comply with Paragraph 15, the result tendered by the petitioner would be deemed unchallenged and uncontroverted. The initial burden on the petitioner is based on the rebuttable presumption that the result of the election declared by the Electoral Commission is correct. The gravity of paragraph 15 however lies in the fact that where a respondent thereafter defaults in filing a list of objection to votes, he will not be allowed to give evidence in respect of any vote or head of objection which he has failed to specify in the “List of objection”. See Agagu V Mimiko (2009) 7 NWLR (Pt. 1140) 342; Buhari V Obasanjo (2003) 15 NWLR (Pt. 843) 242; Legg-Jack V Opusunju (1998) 10 NWLR (Pt. 571) 693; Hassan V Tumu (2007) 3 EPR 358; Nwabochi V Gift (1998) LRECN 1; Etuk V Isemin (1992) 2 LRCEN 148. PER – JUMMAI HANNATU SANKEY, J.C.A.

PARAGRAPH 15 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 – THE IMPORT OF THE PROVISION

The import of this provision is that, where the Petitioners (Appellants herein) claim as they have done in paragraph 51(6) of the Petition, that they scored the highest number of lawful or valid votes cast at the Election, the 3rd Respondent, (i.e. the declared the winner at the Election), is allowed to proceed accordingly under Paragraph 15 of the First Schedule to the Electoral Act, 2010. This provision requires the 3rd Respondent to set out clearly in his Reply the particulars of the votes which he intends to object to, demonstrating how he intends to prove at the hearing that the Petitioners are not entitled to be returned. It also demands much more than filing a reply where he merely denies or joins issues with the petitioner, to going further to aver to additional facts. It has been successively and consistently been held by the Apex Court that the failure or neglect of a respondent proceeding accordingly under this provision is that the results tendered by the petitioner would be deemed not challenged or controverted. See Agagu V Mimiko (2009) LPELR-21149(CA); & Hassan V Tumu (1999) 10 NWLR (Pt. 624) 700, 710 & 712. PER – JUMMAI HANNATU SANKEY, J.C.A.

ELECTION – CHALLENGING THE WIN OF A PARTY IN AN ELECTION ALSO CHALLENGES THE ELECTION ON THE GROUND OF NON-COMPLIANCE TO THE ELECTORAL ACT

This is more so where, (as in this instant case), the Petitioners, in addition to challenging the election on the ground that the 3rd Respondent did not win the election by the number of valid and lawful votes ascribed to him by INEC, has also challenged the election on the ground of non-compliance with the provisions of the Electoral Act. PER – JUMMAI HANNATU SANKEY, J.C.A.

LIST OF OBJECTION – THE RESPONDENT TO FILE A LIST OF OBJECTION TO THE VOTE CAST WHERE HE CONTESTS ANY VOTES CREDITED TO THE PETITIONER/APPELLANT

The Petitioners therefore challenge the election on the two main grounds, i.e. (i) non-compliance with the provisions of the Electoral Act, and (ii) that the 3rd Respondent was not elected by majority of lawful votes cast at the election. That being the case, the rules of procedure as set out in Paragraph 15 of the First Schedule of the Electoral Act, 2010, (as amended), permits and/or mandates a Respondent to also file a “List of objection” to the votes cast at the election where he (3rd Respondent) contests any votes similarly credited to the Appellants/Petitioners, irrespective of the fact that the Appellants/Petitioners did not win the election. PER – JUMMAI HANNATU SANKEY, J.C.A.

LIST OF OBJECTION – EFFECT OF A RESPONDENT NOT FILING A LIST OF OBJECTION TO THE VOTE CAST WHERE HE CONTESTS ANY VOTES CREDITED TO THE PETITIONER/APPELLANT

The gravity of paragraph 15 however lies in the fact that where a respondent thereafter defaults in filing a list of objection to votes, he will not be allowed to give evidence in respect of any vote or head of objection which he has failed to specify in the “List of objection”. See Agagu V Mimiko (2009) 7 NWLR (Pt. 1140) 342; Buhari V Obasanjo (2003) 15 NWLR (Pt. 843) 242; Legg-Jack V Opusunju (1998) 10 NWLR (Pt. 571) 693; Hassan V Tumu (2007) 3 EPR 358; Nwabochi V Gift (1998) LRECN 1; Etuk V Isemin (1992) 2 LRCEN 148. PER – JUMMAI HANNATU SANKEY, J.C.A.

TECHNICALITIES – WHETHER OR NOT UNDUE ATTENTION SHOULD BE PLACED ON TECHNICALITIES IN ELECTION MATTERS

Hence, in election matters, undue attention and reliance should not be placed on technicalities. Even where there is an established case of an irregularity which has not led to a miscarriage of justice, (which is not the case here), the paramount duty of courts is to do justice and not to cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of court. As long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule of court is not defeated, and also failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified. See Paragraph 53(1) of the First Schedule to the Electoral Act, 2010 (as amended); Egolum V Obasanjo (2006) 3 EPR 600 at 641; (1999) 7 NWLR (Pt. 611) 355; Yusuf V Obasanjo (2004) 1 EPR 467 at 536 per Pats-Acholonu, JSC (of blessed memory); Ibrahim V Sheriff (2004) 1 EPR 215 at 238; & Nwole V Iwuagwu (2004) 1 EPR 683 at 698-700. PER – JUMMAI HANNATU SANKEY, J.C.A.

APPEALS – WHETER OR NOT INTERLOCUTORY APPEAL IN ELECTION MATTERS ACCENTUATES THE LEGAL LITERATURE

I am aware that every appeal including interlocutory appeals, accentuates and enriches the legal literature but an appeal which is simply of no utilitarian value when viewed from the bigger picture of the overriding interest of justice, particularly in Election matters in which time is of real essence, such an interlocutory appeal ought to be avoided. It indeed hardly serves any useful purposes. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

CASES CITED

STATUTES REFERRED TO

Electoral Act 2010

Constitution of the Federal Republic of Nigeria (1999) as amended

Election Tribunal and Court Practice Directions 2011

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