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.
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