May 4, 2025
Legalpedia Citation: (2015-04) Legalpedia (SC) 39111 In the Supreme Court of Nigeria Tue Apr 14, 2015 Suit Number: SC. 113/2015 CORAM TINUADE AKOMOLAFE-WILSON JUSTICE, SUPREME COURT […]
CORAM
TINUADE AKOMOLAFE-WILSON JUSTICE, SUPREME COURT OF NIGERIA
ABUBAKAR TIJANI, JUSTICE, COURT OF APPEAL
JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA
PARTIES
ALL PROGRESSIVES CONGRESS APPELLANTS
PEOPLES DEMOCRATIC PARTY
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
In the Governorship Election conducted in Ekiti State on Saturday, 21st June, 2014, eighteen registered political parties sponsored candidates for the election. At the conclusion of the said election, the 3rd Respondent, the Independent National Electoral Commission (INEC), in this appeal announced the scores of the parties and their candidates who participated in the Election. Dr. John Olukayode Fayemi who was sponsored by the All Progressives Congress (APC) scored 120,433 votes while Mr. Peter Ayodele Fayose of the Peoples Democratic Party (PDP) was credited with 203,090 votes. Thus, the PDP (1st Respondent) was declared the winner of the election and Mr. Ayodele Peter Fayose (2nd Respondent) was returned as the duly elected Governor of Ekiti State. The APC, now Appellant in this appeal, was not satisfied with the declaration and return, filed a petition in the Governorship Election Petition Tribunal at Ado-Ekiti challenging the result of the election on the grounds that the 2nd Respondent was at the time of the election not qualified to contest the election and that the certificate so presented by the 2nd Respondent to the 3rd Respondent was forged. The 1st Respondent also by his preliminary objection challenged the Petitioner/Appellant’s right to institute the action stating that the Petitioner/Appellant lacked locus standi. At the conclusion of the trial, the trial tribunal dismissed the petition and also over-ruled the preliminary objection.Displeased by the decision of the Election Tribunal the Petitioner/Appellant appealed to the Court of Appeal Ekiti Judicial Division, the 1st Respondent also Cross-Appealed with respect to his preliminary Objection. The Court of Appeal reaffirmed the decision of the trial Tribunal by dismissing both the appeal and the cross-appeal.Aggrieved, the Petitioner/Appellant further appealed to the Supreme Court while the 1st and 2nd Respondent who were dissatisfied with part of the judgment also Cross-appealed.
HELD
Appeal Dismissed.
ISSUES
1. Whether the Court of Appeal was right in decision that the 4th and 5th Respondents were not necessary parties to the petition in the light of the pleadings and findings made by the Court of Appeal and whether INEC ought to take responsibility for their actions? (Grounds 11, 12 and 13)?
2. Whether the Court of Appeal was right when it failed to nullify the governorship election for Ekiti State held on the 21st June, 2014 in spite of its findings that soldiers were unlawfully deployed and used for the election? (Ground 14)?
3. Whether the Court of Appeal was right that the Appellant did not prove disqualifying ground under Section 182 (1) (e) of the Constitution of Nigeria 1999 (as amended) against the 2nd Respondent? (Grounds 1, 3 and 6) were merged to form Issue
4. Whether the Court of Appeal was right in its decision that the Appellant did not prove the allegation of forged HND Certificate by the 2nd Respondent to INEC? (Ground 8).Whether the Court of Appeal was right in its decision that the case of Alliance for Democracy v. Fayose (2004) All FWLR (Pt.222) 1719 at 1744-46 has settled the issue of authenticity of HND certificate presented by the 2nd Respondent to INEC? (Ground 9)?
5. Whether the Court of Appeal was right in its decision affirming the striking out of paragraph 13 of the Appellant’s Reply to the 2nd Respondent’s Reply to the petition? (Ground 10)?
RATIONES DECIDENDI
PRINCIPLE OF ESTOPPEL -GOVERNING CONSIDERATION FOR THE APPLICATION OF THE PRINCIPLE OF ESTOPPEL
“The governing considerations for the application of the principle of estoppels are that the parties and subject matter in dispute are the same.” PER S. GALADIMA, J.S.C
PARTIES TO AN ELECTION PETITION – STATUTORY/ NECESSARY PARTIES TO AN ELECTION PETITION
Section 137 (2) and (3) stipulates the statutory/necessary parties to a petition as follows:-
137 (2) – “a person whose election is complained of is in this Act referred to as the respondent.”
(3) – “if the petitioner complains of the conduct of an Electoral officer, a presiding or returning officer the Commission shall in this instance be:-
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf of its officers or such other persons.” PER J. A. FABIYI, J.S.C
PROOF OF GUILT – IT IS ONLY THE COURT OR THE CODE OF CONDUCT TRIBUNAL THAT CAN FIND A PERSON GUILTY OF A CRIMINAL ALLEGATION
“The trial and conviction by a court is the only constitutionally permitted way to prove a person guilty and therefore the only ground for the imposition of criminal punishment or penalty for the disqualification for embezzlement or fraud. Apart from the court or the Code of Conduct tribunal, as the case may be, no administrative panel can find a person guilty of any criminal allegation because they lack the machinery and mechanism to do so in view of Section 36(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended). See ACN v. INEC (2007) 6 SCNJ 65, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274”.PER J. I. OKORO,J.S.C
PROOF OF FORGERY – DOCUMENTS REQUIRED IN PROVING THE OFFENCE OF FORGERY.
“To prove forgery or that a document is forged, two documents must be produced:
(1) the document from which the forgery was made, and (2) the forgery or the forged document.”PER N. S. NGWUTA, J.S.C.
JUDICIAL COMMISSION OF INQUIRY – DISTINCTION BETWEEN A JUDICIAL COMMISSION OF INQUIRY AND A COURT OF LAW
“It must be noted that a judicial commission of inquiry or an administrative panel is not the same thing as a court of law or its equivalent. The hierarchy of courts in this country makes it possible for a person wrongly convicted to appeal his conviction even to the Supreme Court. This right is protected by the Constitution. It is not so with administrative tribunals. See Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227. This court held in Hon. Polycarp Effiom & Ors v. Cross River State Independent Electoral Commission &Anor. (2010) 14 NWLR (Pt. 1213) 106 at 132 paras. E to G.”PER J. I. OKORO,J.S.C
BREACH OF FUNDAMENTAL RIGHT – WHO CAN SEEK REDRESS IN A BREACH OF FUNDAMENTAL RIGHT
“It is the person whose fundamental right has been breached that can legitimately complain and seek redress.” PER S. GALADIMA, J.S.C
IMPEACHMENT OF A GOVERNOR – THE IMPEACHMENT OF A GOVERNOR WITHOUT COMPLIANCE WITH THE POST IMPEACHMENT PROCEDURE IS NOT A BAR TO CONTESTING FUTURE ELECTIONS
“If a governor is removed from office but is not taken before the Code of Conduct Tribunal, such a removal will not bar him from contesting election either immediately or before the expiration of ten years from the date of the impeachment. So it is very important for post impeachment proceedings to be taken out against the impeached Governor before the code of Conduct Tribunal or before a courtof law because it is only a court or tribunal established by law and is impartial that is constitutionally empowered to convict for an offence or find a person guilty of the breach of the Code of Conduct. See Garba v. University of Maiduguri supra; Laoye v. F.CS.C. supra; Action Congress v. INEC (2007) 12 NWLR (Pt. 1048) 222.”PER K. B. AKA’AHS, J.S.C
DISQUALIFICATION OF CANDIDATE – IMPEACHMENT IS NOT A GROUND FOR DISQUALIFICATION OF A CANDIDATE
“Impeachment is not a ground for disqualification of a candidate to contest a gubernatorial election.” PER J. A. FABIYI, J.S.C.
POWERS OF THE PANEL OF INVESTIGATION UNDER SECTION 188(5) OF THE CONSTUITUTION – THE POWERS OF THE PANEL OF INVESTIGATION UNDER SECTION 188(5) OF THE CONSTITUTION IS LIMITED TO INVESTIGATING ALLEGATION AGAINST THE GOVERNOR OR HIS DEPUTY AND NOT TO CONVICT
“If the framers of the Constitution intended to imbue the Panel of Investigation, appointed by the Chief Judge of the State in accordance with section 188 (5), to investigate the allegation against the Governor or Deputy, with powers to find him guilty of the criminal offence or breach of the Code of Conduct and convict him accordingly, there would be no need to donate such powers to a court of law or the Code of Conduct Tribunal whose decisions are subject to appeal. The Panel can only find the allegations proved and if the report is adopted by the House of Assembly and a resolution supported by two-thirds majority of the members is passed, the holder of the office stands removed.” PER K. B. AKA’AHS, J.S.C
DOCTRINE OF ISSUE ESTOPPEL-THE DOCTRINE OF ISSUE ESTOPPEL IS THAT WHERE AN ISSUE HAS BEEN DECIDED BY A COMPETENT COURT THE COURT WILL NOT ALLOW IT TO BE RE-LITIGATED BY DIFFERENT PARTIES
“The doctrine of issue estoppel is that where an issue has been decided by a competent court the court will not allow it to be re-litigated by different parties. The rule of estoppels is a rule of evidence and the matters which will found an issue estoppel may be of law, fact, or mixed law and fact. Issue estoppel applies only to issues”.PER O. RHODES-VIVOUR, J.S.C
JURISDICTION OF THE CODE OF CONDUCT TRIBUNAL – WHETHER THE CODE OF CONDUCT TRIBUNAL HAS EXCLUSIVE JURISDICTION OVER MATTERS OF CONTRAVENTION OF THE CODE OF CONDUCT
“There is no provision vesting exclusive jurisdiction on the Code of Conduct Tribunal over matters of contravention of code of conducts. But this jurisdiction cannot be shared by the Code of Conduct Tribunal with an impeachment panel which is an ad hoc tribunal inferior to the code of conduct tribunal”. PER N. S. NGWUTA, J.S.C.
PROOF OF ALLEGATION OF CRIME IN ELECTION PETITION – THE STANDARD OF PROOF OF AN ALLEGATION OF CRIME IN ELECTION PETITION IS BEYOND REASONABLE DOUBT
“Where an allegation of crime is made in an election petition, as herein, the person making the allegation must prove same beyond reasonable doubt. See: Nwobodo v. Onoh (1954) NSCC 1 at 3. Such standard of proof, however, is not one beyond all shadows of doubt. See Akindipe v. The State (2010) 16 NWLR (Pt.813) 340 at 370.” PER J. A. FABIYI, J.S.C.
PARTIES TO AN ACTION – IMPROPRIETY OF JOINING A PARTY TO A PROCEEDING WHERE NO COMPLIANT IS MADE AGAINST SUCH PARTY
“It does not make sense to join a party to any proceeding, except a statutory party, where no complaint is made against such party.” PER N. S. NGWUTA, J.S.C.
PARTIES TO AN ELECTION PETITION – WHO CAN PRESENT AN ELECTION PETITION – SECTION 137 OF THE ELECTORAL ACT, 2010 AS AMENDED
“S.137 (1): An election petition may be presented by one or more of the following persons:
(a) A candidate in an election.
(b) A political party which participated in the election.
(2) A person whose election is complained of is in this Act referred to as the Respondent.
(3) If the petition complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officer or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be
(a) made a respondent, and (b) deemed to be defending the petition for itself and on behalf of officers or such other persons”. PER N. S. NGWUTA, J.S.C.
ALLEGATION OF GROSS MISCONDUCT AGAINST A GOVERNOR – REQUIREMENT FOR SETTING UP A PANEL TO INVESTIGATE AN ALLEGATION OF GROSS MISCONDUCT AGAINST A GOVERNOR
“The signatures of a simple majority of those who voted at the election should back the allegations of gross misconduct against the governor before a panel can be set up to investigate same. The same process should be followed in approving the result of the panel. Once the governor is removed he should be charged to Court and if convicted, he should be banned from contesting any election. This will ensure that the Legislature does not engage in forum shopping to secure a panel that will find in its favour. It will ensure that once a person is found unworthy, he does not return to desecrate the exalted office of State Governor”. PER N. S. NGWUTA, J.S.C.
POWERS OF THE CODE OF CONDUCT VIS-À-VIS THE CODE OF CONDUICT WITH RESPECT TO CONVICTION AND SENTENCING – IT IS ONLY A COURT OF LAW THAT CAN CONVICT AND SENTENCE A PERSON WHILE THE CODE OF CONDUCT TRIBUNAL CAN FIND THE PERSON GUILTY OF A BREACH OF THE CODE
“It is only a court of law that can convict and sentence a person while the Code of Conduct Tribunal can find the person guilty of a breach of the Code of Conduct. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Laoye v. F.C.S.C. (1989) 2 NWLR (Pt. 106) 652”.PER K. B. AKA’AHS, J.S.C
PROOF OF THE OFFENCE OF FORGERY – THE OFFENCE OF FORGERY BEING A CRIMINAL OFFENCE MUST BE PROVED BEYOND REASONABLE DOUBT.
“Forgery is a criminal offence and when it is an issue in any proceeding it must be proved beyond reasonable doubt.” PER N. S. NGWUTA, J.S.C.
FINDINGS OF THE CODE OF CONDUCT – IMPROPRIETY OF A PETITIONER RELYING ON THE FINDINGS OF THE PANEL BUT NOT ON THE PANEL
“It is a play on words to say that the petitioner relies on the finding of the panel but not on the panel itself. The finding relating to the Code of Conduct is a product of the impeachment panel. On the facts herein, the appellant cannot jettison the process for the product. The process – the impeachment proceedings and the product – a finding of guilt relating to Code of Conduct must stand or fall together. It is the impeachment that gave rise to the finding of guilt”. PER N. S. NGWUTA, J.S.C.
PROCEDURE OF IMPEACHMENT – NATURE OF THE PROCEDURE FOR IMPEACHMENT
“The procedure of impeachment should be modified in a manner that would protect the mandate given by the electorate and to ensure that a governor who is impeached and removed from office does not contest the election to return to the exalted office for which he was found unworthy”. PER N. S. NGWUTA, J.S.C.
NECESSARY PARTY – MEANING OF A NECESSARY PARTY.
“Generally, a necessary party is one not only interested in the dispute but the matter cannot be decided fairly in his absence. See Chief Abusi David Green v. Chief Dr. E. T. D. Green (1987) 3 NWLR at 480 pages 492 and 493.” PER N. S. NGWUTA, J.S.C.
TRIAL OF PUBLIC OFFICER FOR CONTRAVENTION OF THE CODE OF CONDUCT- IT IS THE COURT OF LAW OR A TRIBUNAL DULY SET UP BY THE CODE OF CONDUCT BUREAU THAT HAS POWER TO TRY ANY PUBLIC OFFICER FOR CONTRAVENTION OF THE CODE OF CONDUCT
“It is the court of law or a tribunal duly set up by the Code of Conduct Bureau that has power to try any public officer for contravention of the code of conduct. For any of such, is the forum where he can be sure of adequate fair hearing as enshrined in Section 36(1) and (5) CFRN 1999. See also A.C v. INEC (2007) 12 NWLR (Pt.1048) 220”. PER J. A. FABIYI, J.S.C.
SCOPE OF IMPEACHMENT OF A GOVERNOR – THE IMPEACHMENT OF A GOVERNOR IS A LEGISLATIVE CONSTITUTIONAL AFFAIR
‘The impeachment of a Governor is a legislative constitutional affair outside the jurisdiction of the court. See Musa v. Kaduna State House of Assembly &ors 1982 3 NWLR p.450. Abaribe v. Abia State House of Assembly (2002) 14 NWLR (Pt. 788) p. 466’.PER O. RHODES-VIVOUR, J.S.C
PARTIES TO AN ELECTION PETITION – RESPONDENTS IN AN ELECTION PETITION AS SET OUT IN SECTION 137 (1), (2), AND (3) 0F THE ELECTORAL ACT.
“It must be stated right away that Election Petition proceedings are sui generis. Section 137 (1), (2) and (3) of the Electoral Act clearly set out and circumscribed those who qualify to be made respondents in an Election Petition.” PER J. A. FABIYI, J.S.C.
CONSISTENCY IN PROSECUTING A CASE – IMPORTANCE OF CONSISTENCY IN PROSECUTING A PARTY’S CASE
“.There should be consistency by a party in prosecuting his case at the trial court as well as on appeal. There should be no summersault. See: Ajide v. Kelani (1955) 3 NWLR (Pt.12) 248”. PER J. A. FABIYI, J.S.C
BURDEN OF PROOF IN CRIMINAL ALLEGATION –HE WHO ALLEGES MUST PROVE BEYOND REASONABLE DOUBT
“It is trite that he who alleges must prove beyond reasonable doubt in criminal allegation as it in this case.”PER O. RHODES-VIVOUR, J.S.C
DISQUALIFICATION ON GROUNDS OF IMPEACHMENT- DISQUALIFICATION ON GROUND OF IMPEACHMENT CAN ONLY ARISE WHERE A PERSON HAS BEEN CONVICTED AND SENTENCED FOR THE OFFENCE FOR WHICH HE WAS IMPEACHED
“Disqualification as a result of impeachment can only arise if the impeached person is thereafter convicted and sentenced for the offence for which he was impeached.”PER O. RHODES-VIVOUR, J.S.C
GROUND OF APPEAL – A GROUND OF APPEAL CANNOT BE RAISED FROM AN OBITER DICTA.
“Obiter dicta cannot be the basis for raising a ground of appeal from which an issue can be framed. The comment is not a ratio decidendi of the decision appealed against. See Ede v. Aneke (1992) 5 NWLR (Pt.424) 428 at 435, Igwe v. AICE Owerri (1994) 8 NWLR (pt.363) 549 ratio 14.” PER N. S. NGWUTA, J.S.C.
VICARIOUS LIABILITY IN CRIMINAL CASES – VICARIOUS LIABILITY DOES NOT APPLY IN CRIMINAL CASES.
“It is basic that there is no vicarious liability in the realm of criminal law. Anyone who contravenes the law should carry his own cross.” PER J. A. FABIYI, J.S.C.
IMMUNITY OF PUBLIC OFFICER UNDER SECTION 308 OF THE CONSTITUTION – WHETHER AN INCUMBENT GOVERNOR CAN BE ARRAIGNED BEFORE A COURT OF LAW OR A CODE OF CONDUCT TRIBUNAL
“As a result of the immunity enjoyed by elected public officers under section 308 of the constitution, an incumbent Governor cannot be arraigned before a court of law or the Code of Conduct Tribunal. See Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606.”PER K. B. AKA’AHS, J.S.C
IMPEACHMENT OF A GOVERNOR – CONDITIONS UNDER WHICH A GOVERNOR CAN BE IMPEACHED ON GROUNDS OF DISQUALIFICATION UNDER SECTION 182 OF THE CONSTITUTION
“Impeachment can never be listed under section 182 of the Constitution as a ground for disqualification, but a Governor, etc impeached for dishonesty or fraud (i.e. criminal offence) and taken before a competent court of the Code of Conduct Tribunal would be disqualified by the provisions of section 182 (1) (d) and (e) if he is convicted and sentenced for the offence/s for which was impeached”.PER O. RHODES-VIVOUR, J.S.C
PROSECUTION OF A GOVERNOR – APPROPRIATE VENUE FOR PROSECUTING A GOVERNOR IMPEACHED ON ALLEGATION OF CRIME- EFFECT OF FAILURE TO PROSECUTE A GOVERNOR ON AN ALLEGATION OF CRIME
“A governor impeached for stealing (embezzlement of funds) ought to be prosecuted in a competent court or Code of Conduct Tribunal. See section 182(1) (d) and (e) of the Constitution. Failure to do that amounts to grave lapses and abandonment of duties by the authorities concerned, and an impeached Governor would be allowed to contest elections again, as a result of our weak institutions” PER O. RHODES-VIVOUR, J.S.C
DISQUALIFICATION OF A CANDIDATE FROM GUBERNATORIAL ELECTION – REQUIREMENT TO SUSTAIN A GROUND FOR DISQUALIFICATION UNDER SECTION 182(1)(E) OF THE 1999 CONSTITUTION
“It is now getting entrenched that the only substantive proceedings to secure a guilty verdict for contravening the code of conduct is one initiated by the Code of Conduct Bureau before the Code of Conduct Tribunal. Same must be pleaded and proved to sustain a disqualifying ground under Section 182 (1) (e) of the 1999 Constitution.” PER J. A. FABIYI, J.S.C
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Electoral Act 2010 (as amended)