Areas Of Law
APPEAL, CONSTITUTIONAL LAW,COURT, ELECTION PETITION, INTERPRETATION OF STATUTE, JURISDICTION, PRACTICE AND PROCEDURE, TRIBUNAL

Summary Of Facts
The Petitioner/Appellant a political party sponsored Mrs. Iyabode Ogunmefun as its gubernatorial candidate for Ogun State at the election which was held on the 11th of April 2015. The Petitioner/Appellant and his candidate were excluded from the election as they did not participate. The 3rd Respondent and his running mate the 4th Respondent were then declared the winner of the Election by INEC. Aggrieved, the Petitioner/Appellant challenged the election at the Governorship Election Petition Tribunal of Ogun State. The Chairman of the Tribunal sitting alone consequently dismissed the petition upon an application by the Respondents, on the grounds that it was incompetence as it was filed outside the 21days period prescribed by law. Upon appeal to the Court of Appeal, the Court dismissed the appeal and affirmed the decision of the trial Tribunal. Further appeal has therefore made to this Court at the instance of the Appellant

Held
Appeal Allowed

Issue For Determination
– Whether the Chairman of the trial court, sitting alone, had the jurisdiction to have hears and determine the respondents’ consolidated applications that gave rise to the ruling of the trial court delivered on 10/7/2015 (this issue is distilled from ground 1 of the appellant’s Notice of Appeal).

Rationes
ISSUE OF JURISDICTION –THE ISSUE OF JURISDICTION CAN BE RAISED FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE OF COURT
“The issue of jurisdiction is over and above any legal manipulation. It has to be neatly observed and acted upon, whether it was raised in any ground of appeal or not. The jurisdiction, I can boldly state, is a question of law which can be mentioned and raised for the first time in appellate courts or even this court. It is also clear that there is no need for any leave of any court, sought and obtained, before it could be said to have been properly raised. No matter in what manner it was raised, it can lawfully be raised as a fresh issue on appeal”. PER M.S. MUNTAKA-COOMASSIE, J.S.C

CONSTITUTION OF COURT – INGREDIENTS TO DETERMINE WHETHER A COURT IS PROPERLY CONSTITUTED
“There is no doubt that a court of law is fundamentally competent when it is properly constituted. If a court is not properly constituted, when there is a defect in its membership then that court cannot be said to have been properly in place. It lacks jurisdiction to properly adjudicate. Whatever decision it reached is going to be a nullity. See Madukolu V Nkemdilim (1962) 2SC NLR 341. This court has this to say and state thus:-
1. It is properly constituted as regards numbers and qualifications of members of the bench and no member is disqualified for one reason or another, and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and;
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” PER M.S. MUNTAKA-COOMASSIE, J.S.C

ELECTION TRIBUNAL – CONSTITUTION OF AN ELECTION TRIBUNAL
“My, lords, it is in a nutshell, that the Trial Court was not properly constituted as regards membership. The relevant law says that Tribunal be constituted with Chairman and at least one member”. PER M.S. MUNTAKA-COOMASSIE, J.S.C

CONSTITUTION OF AN ELECTION TRIBUNAL – SECTION 285(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“The provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, by its S.285 (4) no Tribunal can be properly constituted with the chairman alone. All other laws or Act which provides that a chairman alone, without any member can sit and determine a petition is void for inconsistency”. PER M.S. MUNTAKA-COOMASSIE, J.S.C

QUORUM OF AN ELECTION PETITION TRIBUNAL – SECTION 285(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“Section 285 (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) prescribes the quorum of an Election Petition Tribunal to be the Chairman and one other member. It, simply, means that for the hearing and determination of an election petition, the tribunal can only be properly constituted where its Chairman sits with, at least, one other member, Wayo Ubwa v Tiv ATC and Ors (2004) LPELR -3285 (SC) 7-8; [2004] 11 NWLR (pt 884) 427; Okolie Chime and Anor v Elikwu and Anor (1965) 2 ANLR (Reprint) 16; Adeigbe and Anor v Kushimo and Ors (1965) ANLR (Reprint) 260”.PER C.C. NWEZE,J.S.C

DECISION OF A TRIBUNAL/COURT – REQUIREMENT FOR THE VALIDITY OF A DECISION OF TRIBUNAL/COURT
“A tribunal represents a seat of a judge. A place where a Judge administers Justice. It may consist of a body of Judges who compose a Jurisdiction. (Blacks Law Dictionary, 5th edition page 1350). It is akin to a Court of Justice which decides between persons. Any decision of a court of Law-and a decision-according to the Constitution, means any determination of that Court and includes Judgment, decree, order, conviction, sentence or recommendation. Before any Court/Tribunal can determine any of the above listed indices, it must have been conferred with Jurisdiction which must be exercised by the Judge/Judges (which include Chairman and members of any tribunal). In order to hand down any valid decision a court/tribunal must be properly constituted”. PER I.T. MUHAMMAD, J.S.C

CONSTITUTION OF AN ELECTION TRIBUNAL – REQUIREMENT IN SECTION 285(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA ON THE CONSTITUTION OF AN ELECTION TRIBUNAL
“The requirement in Section 285(4) of the Constitution for a tribunal to form a quorum is that, the tribunal must consist of the chairman and another member of the tribunal. The section uses the word “SHALL”, denoting necessity, mandatoriness and or compulsion. Further, the section does not exempt any other situation(s) where the tribunal can pick and choose which of the processes before it can be entertained by a FULL quorum of the tribunal or only by the chairman. Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to a nullity. The constitution has provided that for the tribunal to form a quorum the chairman and a member must be present, take the proceedings together and deliver its Judgement or Ruling together. Thus, where the tribunal chairman sat alone and considered the consolidated motions alone and delivered his Ruling alone, he only succeeded in wasting his precious judicial time, that of the parties and then counsel and any other person or institution that has one thing to do or another in relation to that proceeding”. PER I.T. MUHAMMAD, J.S.C

DOCTRINE OF COVERING THE FIELD – ESSENCE OF THE DOCTRINE OF COVERING THE FIELD
“That is the essence of doctrine of covering the field such that where a main, principal or superior law has covered a given field or area; any other subsidiary law made in that area cannot operate side by side with the main/principal/superior law. If it is inconsistent, it has to be decleared void to the extent if its inconsistency. The supremacy of the constitution must be obeyed and respected”. PER I.T. MUHAMMAD, J.S.C

COMPOSITION OF AN ELECTION TRIBUNAL – EFFECT OF A DEFECT IN THE COMPOSITION OF AN ELECTION TRIBUNAL
“Any defect in the composition of an Election Tribunal is fatal, for the proceedings are a nullity no matter how well they were handled and decided. The defect is extrinsic to the proceedings. See Sea Trucks Ltd v. Anigboro (2011 )1 SC (pt. 1) p.56, CG.C Nig Ltd v. Aminu (2015) SCNWLR (pt.1459) p.577.” PER O. RHODES-VIVOUR, J.S.C

ELECTION TRIBUNAL – WHEN IS AN ELECTION TRIBUNAL PROPERLY CONSTITUTED
“There can be no doubt after reading section 285(4) of the Constitution, that an Election Tribunal is properly constituted when the chairman and one other member hear proceedings before it”. PER O. RHODES-VIVOUR, J.S.C

JURISDICTION OF THE COURT OF APPEAL – THE COURT OF APPEAL LACKS JURISDICTION TO ADJUDICATE OVER AN APPEAL THAT IS A NULLITY
“The Court of Appeal had no jurisdiction to adjudicate over an appeal that was a nullity even before it was seized of it”. PER O. RHODES-VIVOUR, J.S.C

“SHALL”- IMPORT OF “SHALL” UNDER SECTION 285(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“The use of the word shall presupposes that the composition must comply with the constitutional provision and the effect of a departure there from will occasion a fundamental breach of same”. PER C. B. OGUNBIYI, J.S.C

Statutes Referred To
Constitution of the Federal Republic of Nigeria, 1999(as amended)
Electoral Act 2010 (as amended)
Interpretation Act
Supreme Court Act, 1960