A law court is fundamentally competent when properly constituted – Part 6

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON TUESDAY, THE 20TH DAY OF OCTOBER, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD JUSTICE, SUPREME COURT MUHAMMADS.M.COOMASSIE JUSTICE, SUPREMECOURT
OLABODE RHODES-VIVOUR JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
JOHN I. OKORO JUSTICE, SUPREME COURT
CHIMA C. NWEZE JUSTICE, SUPREME COURT
AMIRU SANUSI JUSTICE, SUPREME COURT
SC. 665/2015
BETWEEN:
MEGA PROGRESSIVE PEOPLES PARTY (MPPP) ………………………………………………………APPELLANT
AND
1.INDEPENDENTNATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVE CONGRESS (APC)
3. SENATOR IBIKUNLE AMOSUN
4. MRS. YETUNDE ONANUGA … RESPONDENTS

The proceedings of the 10th of July, 2015 when the chairman sat alone and struck out the petition was done without jurisdiction since the election tribunal was not properly constituted. The proceedings of 10th of July, 2015 before the election tribunal are a complete nullity.

Also, the Court of Appeal had no jurisdiction to adjudicate over an appeal that was a nullity even before it was seized of it. 15 The proceedings before the election tribunal and the Court of Appeal are nullities.
I concur in the decision to allow the appeal.

C. B. OGUNBIYI, JSC.: I have had the benefit of reading in draft the leading judgment of my learned brother Muntaka-Coomassie, JSC., just delivered.

I agree with his reasoning and conclusion that the appeal has merit and should be allowed.

The main and only issue for determination is:-
ìWhether the chairman of the trial court, sitting alone, had the jurisdiction to have heard and determined the Respondentsí consolidated applications that gave rise to the ruling of the trial court delivered on 10th July, 2015?î

Section 285(4) of the Constitution governs the composition of the tribunal and same states as follows:-
ì(4) The quorum of an election tribunal established under this section shall be the chairman and one other member.î
The use of the word shall presupposes that the composition must comply with the constitutional provision and the effect of a departure therefrom will occasion a fundamental breach of same.

By the chairman hearing the applications single handedly, it is a serious departure from the constitutional mandate and therefore rendering the proceedings as null and void and of no positive legal effect whatsoever.

Section 27(1) of the 1st schedule to the Electoral Act 2010 is a law passed by the National Assembly and which is inconsistent with the constitution. The provision of the Act which allows for the chairman of the tribunal or the Presiding Justice of the court to dispose on interlocutory matters is unconstitutional and therefore misleading. The tribunal, as constituted had no jurisdiction and likewise the Court of Appeal.

I agree with the conclusion arrived at by my learned brother Muntaka-Coomassie, JSC, that the appeal has merit and same is allowed. I make an order that the matter be remitted to the President Court of Appeal who should constitute a fresh panel to hear the consolidated applications and to determine the petition.

J. I. OKORO, JSC.: I read before now the judgment of my learned brother, Muntaka-Coomassie, JSC., just delivered and I agree that this appeal is meritorious and deserves to be allowed.

All parties to this appeal agree that the chairman of the governorship election tribunal sitting in Abeokuta, Ogun State, sat alone and struck out the petition of the Appellant. The record of proceedings at Page 326 thereof clearly supports this assertion wherein it states:
ìCoram: Full tribunal for the pre-hearing session. However, only the chairman shall take interlocutory applications.î
Since all the parties and the record agree on this issue, I shall not say more on it.

The salient issue which calls for determination is whether 20 the chairman of the tribunal, sitting alone, had the jurisdiction to have heard and determined the Respondents’ consolidated applications that gave rise to the striking out of the petition.

I think the chairman of the tribunal may have derived his ìpowerî from Paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 (as amended). The paragraph states:
ì27(1)All interlocutory questions and matters may be heard and disposed of by the chairman of the tribunal or the presiding justice of the court who shall have control over the proceedings as a judge in the Federal High Court.î

I had occasion to examine the above provision while I was in the Court of Appeal in the case of Ayoola v. Okediran (2012) All FWLR (Pt. 614) 66 at 126 CA wherein I stated as follows:
ìAs I said earlier, the two applications which the chairman of the tribunal heard and determined clearly asked that the petition be dismissed. On Pages 416-417 of the record the chairman of the tribunal clearly states that both motions were seeking the dismissal of the petition. If the chairman can sit alone, hear and determine an application seeking to dismiss a petition, of what use are the other two members? This is not what Paragraph 27(1) of the First Schedule to the Electoral Act 2010 (as amended) contemplates. Where such a serious issue or application which seeks to terminate or dismiss the appeal in limine is filed before the tribunal, it is my considered view that the chairman cannot sit alone to determine such a weighty issue. At least two members including the chairman must sit together to consider such an application. What the chairman did, with due respect, was a violation of Section 285(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is on this note that I agree with my learned brother that the chairman of the tribunal was in error when he sat alone, heard and determined the two sets of applications which sought to dismiss the petition in limine.î

The above opinion which I expressed in 2012 on the issue is as potent today as it was then. Section 285(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is quite clear on the issue. It states:
ì285(4) The quorum of an election tribunal established under this section shall be the chairman and one other member.

It is elementary knowledge of the law that the constitution is the supreme law of the land and its provisions soar far above every other legislation. The intendment of the constitutional provision is that the quorum for an election petition tribunal shall be the chairman and one other member: That is to say, at least two members shall constitute a quorum for an election petition tribunal. There is no suggestion that the constitution had intended that one member or even the chairman can alone constitute a quorum for the tribunal. I am surprised that in spite of the decisions of the appellate court on this issue, election tribunals still continue to interpret Paragraph 27(1) of the First Schedule to the Electoral Act negatively.

I think the time has come for this court to take a second look at the said Paragraph 27(1) of the First Schedule to the Electoral Act. That provision, in my opinion, irrespective of its intention, runs foul to the clear and unambiguous provision of Section 285(4) of the 1999 Constitution (as amended). Whereas the constitution prescribes the quorum for election tribunals to be two, the said Paragraph 27(1) prescribes the chairman alone. This later provision is inconsistent with the provision of the constitution and to the extent of that inconsistency, it is null and void. What I am saying in effect is that Paragraph 27(1) of the First Schedule to the Electoral Act 2010 (as amended) is null and void, same being contrary to the provision and intendment of Section 285(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It must be emphasized that if any provision of an existing law is inconsistent with any provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), such provision is void to the extent of that inconsistency. See Ekulo Farms Ltd. v. Union Bank of Nigeria Plc. (2006) 4 S.C. (Pt. II) 1; National Union of Electricity Employees & Anor. v. Bureau of Public Enterprises (2010) 72-3 S.C. (Pt. II) 27; Military Governor of Ondo State v. Adewunmi (1988) 6 S.C. (Reprint) 273.

The sum total of all I have said above is that the ruling of the chairman of the tribunal which struck out the petition, is a nullity as he had no jurisdiction to do so. It is accordingly set aside. Having set it aside, there was nothing upon which an appeal to the Court of Appeal could lie. Therefore, the judgment of the Court of Appeal in this matter delivered on 27th August, 2015 is also set aside. The appeal has merit and is hereby allowed. The Appellant’s petition is hereby remitted to the election tribunal for hearing de novo. The President of the Court of Appeal shall constitute another panel to hear the said petition. I abide by the order as to costs.

C. C. NWEZE, JSC.: I had the advantage of reading the draft of the leading which my Lord, Muntaka-Coomassie, JSC, just delivered now. I am in complete agreement with His Lordship that only issue one is determinative of this appeal. Afortiori, its resolution would obviate the need for the dissipation of valuable judicial energy on the remaining two issues. As, already, noted in the leading judgment, 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. YAweh and Ors. (2004) 5 S.C. (Pt. II) 49; Okalie Chime and Anor. v. Elikwu and Anor (1965) 2 ANLR (Reprint) 16; Adeigbe and Anor. v. Kushimo and Ors. (1965) ANLR (Reprint) 260.

The effect of the above position is that on July 10, 2015, when Olusiyi J, Chairman of the trial tribunal, sat 15 and determined the Appellant’s petition by striking it out, His Lordship acted in contravention of the inviolable principle consecrated in the above section of the Constitution. In consequence, the lower court ought to have spurned the said proceedings. On the contrary, it [the lower court] purported to assume jurisdiction to entertain the said appeal that eventuated from the said proceedings which were not only vacuous but, entirely, void. Neither of the proceedings would, therefore, be permitted to endure. Accordingly, like the leading judgment, I, too, shall allow this appeal. I abide by the consequential orders in my Lord, Muntaka-Coomassie, JSCís judgment.

Appearances:
Omereonye Morgans, (with him, Anthony Itedjere), for the Appellant;
A. Kayode, (with him, O. F. Akinsanmi), for the 1st Respondent;
George Oyeniyi, for the 2nd Respondent;
Olutunde Abegunde, (with him, O. Ebose; Ayodeji Olanipekun; Affis Matanmi and Olawale Oyebode), for the 3rd and 4th Respondents.