Sikiru Ikuogbogun & Ors V. Chief Adeleke Rabiu G. B. (1989)
LawGlobal-Hub Lead Judgment Report
OMOLOLU-THOMAS, J.C.A.
The appellant in this case appealed against the decision of the Hon. Justice Oluborode of the High Court of Oyo State at Oyo in a Petition in which he was the 1st respondent in the Councillorship election held on 12th December, 1987, in Ward 3 of Ifedapo Local Government Council of Oyo State where the petitioner sought the nullification and cancellation of the said councillorship election, a declaration that the nomination of the petitioner be declared valid, and an order for fresh election to be conducted in the area.
After the exchange of pleadings the learned trial Judge proceeded to hear the case on the statement of facts which the parties were relying upon, respectively.
The case of the petitioner in summary was that the petitioner and the 1st respondent were both prospective candidates for the Local Government Election in the said Ward 3 in Ifedapo Local Government. The petitioner, having complied with the nomination procedure, his name was included on the nomination list of candidates to contest the election. He was later informed that an objection had been raised against his candidature on the ground that he had been convicted for an offence of affray at the Chief Magistrates’ Court, Shaki, and sentenced to a fine. The petitioner wrote his defence to the objection and addressed it to the 2nd respondent. A few days later his name was excluded from the final nomination list, in consequence of which the 1st respondent, as the only remaining candidate, was returned unopposed by the 3rd respondent.
The case of the 1st respondent was that he was lawfully returned unopposed because the petitioner had been convicted of offences committed in 1979 and 1982.
The 1st respondent as well as the petitioner were duly nominated to stand for the election according to the 2nd respondent. Thereafter there was an objection to the nomination of the petitioner. When the final nomination list was displayed another objection was raised against the petitioner, the first objection having been overruled. The 2nd respondent was asked to investigate the said convictions and he thereafter obtained a copy of the judgment (Exhibit E) which showed that the petitioner was convicted of an offence of assault occasioning harm. His case was that he invited the petitioner and told him that the Commission had disqualified him on the basis of the judgment.
The case of the 2nd to the 5th respondents, according to the 3rd respondent, was that there was no election in Ward 3 in Ifedapo Local Government Area because the 1st respondent was the only candidate on the final nomination list for the conduct of the election in the said Ward. The name of the respondent was announced by the Electoral Commissioner for Oyo State, 4th respondent, as being unopposed.
The learned trial Judge in substance in his judgment considered that the main issue raised by the petition was on the jurisdiction of the court to decide questions relating to the disqualification of the petitioner by the Commission. He considered that the question is fundamental to the hearing of the petition. He said that the High Court derived jurisdiction to hear election petitions from both Sections 31 and 32 of the Local Government Elections Decree 1987 hereafter called “Decree No. 37.” He also considered that the plank, on which the 1st respondent rested his case, was on paragraphs 1 and 4 of Schedule 1 and Sections 5 and 7 of the Participation in Politics and Elections (Prohibition) Decree 1987 hereafter called “Decree No. 25.” he therefore found as follows-
“From the evidence before the court, the petitioner was not a public office holder from 1st October, 1960 to 15th January, 1966 nor from 1st October, 1979 to 30th December, 1983. From all indications, he was a self-employed man. He was not found guilty by any Tribunal which in the context of the provision means a tribunal as opposed to court of law. It is clear therefore that the category of the petitioner being a public officer who was convicted of a felony, i.e., assault occasioning harm could not have been contained in the relevant provision of the Decree. This is more so when he had not or could not have been dismissed as contained in paragraph 4 of the Schedule to the Decree. The necessary step taken to disqualify the petitioner who had already been validly nominated must be in strict compliance with Section 3(8) and (9) of Decree No. 25. The evidence so far merely showed that the 3rd to 5th respondents have got hold of Exhibit E to disqualify the petitioner not acting in pursuance of the provision of the Decree. To oust the jurisdiction of this court as provided in Section 7 of the Decree No. 25, the Commission must have clearly shown to have acted under the Decree failing which the ouster clause becomes inapplicable.”
He then assumed jurisdiction as provided under Section 31 of Decree No. 37, and concluded that the petitioner had been “unlawfully excluded” as a candidate for the election thus giving room for his opponent to be returned unopposed. He found that the petitioner had not committed any offence specified in Part 2 of Decree No. 37 to exclude him from contesting the local government election, and thus ordered that the return of the 1st respondent who had been declared unopposed is void and of no effect; and that the petitioner’s nomination is valid, and also that fresh election in the Ward be undertaken.
Dissatisfied, the 1st respondent has appealed to this Court on the following Grounds of Appeal –
“1. The learned trial Judge was not competent by reasons of lack of jurisdiction to entertain the election petition brought against the respondents by the petitioner, and the trial was therefore a nullity.
PARTICULARS OF ERRORS
(a) The petitioner in the instant case challenged his disqualification by the National Electoral Commission from contesting the Local Government Elections held on the 12th day of December, 1987.
(b) The petitioner did not apply for the review of his disqualification either from the National Electoral Commission or the Transition to Civil Rule Tribunal.
(c) The jurisdiction of the High Court is excluded from entertaining the instant case by virtue of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987 and Decree No. 37 Local Government Elections Decree 1987.
- The decision of the learned trial Judge cannot be supported having regard to the weight of evidence.”
Briefs of arguments were duly exchanged by the parties. The issues for the determination of this appeal as set forth by the 1st respondent, now “the appellant”, read as follows-
“1. Whether having regard to the pleadings filed by all the parties and the evidence led by them the High Court of a State (in this case the learned trial Judge) had jurisdiction to adjudicate upon the disqualification of a person to contest election by the National Electoral Commission in view of the provisions of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987; Decree No. 37 Local Government Elections Decree 1987, Decree No. 1 Constitution (Suspension and Modification) Decree 1984 and Decree No. 13 Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984, and
- Whether having regard to the pleadings and evidence the petitioner/respondent is eligible to contest Elections in view of the Provisions of Decree No. 25 Participation in Politics and Elections (Prohibition) Decree 1987 and Decree No. 37 Local Government Elections Decree 1987.”
and the petitioner now “the respondent”, having adopted the appellant’s issues for determination, I propose to consider the appeal in terms of those issues as argued by the parties in their briefs.
The argument of the appellant in his brief questioned the finding of the learned trial Judge when he said that since the National Electoral Commission (NEC) did not properly carry out the disqualification exercise, His Lordship’s jurisdiction was not therefore ousted by the provisions of Decrees 25 and 37 of 1987 particularly after the learned trial Judge had rightly made a finding that it was the disqualification of the respondent that deprived him (the appellant) of the opportunity of participating in the local government election.
This, indeed, is the core of this appeal which is challenging the jurisdiction of the High Court to adjudicate upon the case of a person disqualified by the Commission to contest election.
Counsel said that there is overwhelming evidence that it was the Commission that disqualified the respondent from contesting the election, and that the learned trial Judge rightly made such a finding. The question then is according to counsel, whether the High Court had jurisdiction to adjudicate upon the issue of a disqualification of a person by NEC to contest election, citing the case of Madukolu v. Nkemdilim (1962) 1 A.N.L.R. (Part 4) 587 at 595 on the meaning of the expression “jurisdiction.” His argument is that the Constitution (Suspension and Modification) Decree (No.1 of 1984) and the Federal Government (Supremacy and Enforcement of Powers) Decree (No. 13 of 1984), and any other decrees – including Decrees Nos. 25 and 37 of 1987 take precedence over, and are superior to the Constitution of the Federal Republic of Nigeria (the 1979 Constitution), and therefore any legislation inconsistent with any of the decrees aforementioned is null and void to the extent of the inconsistency, relying on the Military Governor of Ondo State v. Victor Adegoke Adewunmi (1988) 3 N.W.L.R. (Part 82) 280 at 306-307.
Counsel further argued that the unlimited jurisdiction conferred on the High Court of a State by Section 236 of the 1979 Constitution had been whittled down by Decree No. 1 of 1984 and other decrees thereafter; and that, accordingly, the jurisdiction of the High Court is unlimited only to the extent that it is not ousted by any decree, citing the case of the Military Governor of Ondo State v Adewunmi (supra) at 298 and Kasikwu Farms Ltd. v Attorney-General of Bendel State (1986) 1 N.W.L.R. (Part 19) 695 at 707.
His main contention is that after the respondent’s disqualification by NEC which is the competent adjudicative body to contest the election, the respondent’s remedy with respect to such disqualification lies with the Transition to Civil Rule Tribunal established by Decree No. 25. A redress and any action before any other body other than the Tribunal is a nullity (Chief P. Agbajo v Attorney-General of the Federal Republic of Nigeria (1986) 2 N.W.L.R (Part 23) at 528). Counsel urged for consideration sections 3(8), 5, 7 of Decree No. 25; and argued that Decree No. 37 had removed any area of conflict or contradiction in that Decree. In addition to Decree No. 25, the former having been assimilated or incorporated into the procedure prescribed in the latter decree, he urged and particularly referred to Section 4(1)(d) and Sections 31 and 34 of Decree No. 37.
The respondent on the other hand argued that the learned trial Judge rightly held that the purpose for which Decree No. 25 was promulgated was to prevent certain categories of persons, who were public servants between the 1st October, 1960 and 15th January, 1966 and 1st October, 1979 to 30 December, 1983 who were found guilty of offences or wrong doings by any Tribunal, Judicial Commission or Administrative Enquiry, from participating in politics or elections. He also supported the judgment of the learned trial Judge when he held that the offences intended in paragraph 1 of Schedule 1 of Decree No. 25, relate only to corruption, mismanagement of public funds and unjust enrichment, as in the preamble to Decree No. 25, and not an offence like an affray or unlawful assault.
He further said that the learned trial Judge was right when he held that paragraph 4 of Schedule 1 of Decree No. 25 covers those persons both in public and private sectors who had already been dismissed from their employment or who can still be so dismissed if the need arises from 1st October to the end of the transition period.
He then submitted that from the evidence before the Court the petitioner was never a “public officer”, as he had always been a self-employed man, and could not have been affected by the provision of Decree No. 25, and to the effect that the respondent not having been found guilty by any Tribunal in the context of Decree No. 25, as opposed to a Court of law like the Chief Magistrates’ Court, the learned trial Judge was right in his finding to that effect.
I might as well in this appeal begin with Section 4(1)(d) of Decree No. 37 which reads –
“4(1) A person shall not be qualified as a candidate to contest any local government election unless –
(a) …………
(b) …………
(c) …………
(d) he is not a person banned or prohibited from participating in politics and election in accordance with the Participation in Politics and Elections (Prohibition) Decree, 1987.”
From the foregoing a person to be eligible to be voted for in terms of the provision if read along with the marginal notes of the Section, must be qualified as a candidate to contest a local government election only if he is, inter alia, not a person banned or prohibited from participating in politics and elections in accordance with the Decree No. 25; although, all that the Decree does was to make provision for the conduct of elections into local government councils on non-party basis, during the period of transition to civil rule as in the programme of the Federal Military Government set out in the Transition to Civil Rule (Political Programme) Decree, 1987 (refer to the preamble to Decree No. 37 of 1987).
By Section 1(1) and (2) of the said Decree No. 25 which read thus-
(1) Notwithstanding the provisions of any other enactment regarding the disqualification of persons from contesting, holding or being appointed to any elective office or post, either in the government or in a political party, the persons and office holders specified in Schedule 1 to this Decree are hereby banned for life from holding any elective office or post, public office, political party, whether elective or otherwise either in the government or in any political party.
(2) The persons and office holders specified in Schedule 2 to this Decree are hereby disqualified from contesting or seeking any public office or post whether elective or otherwise in any government or political party in Nigeria during the transition period; so however that nothing in this Decree shall be construed to affect any present holder of any of the offices stipulated in Schedule 2 to this Decree except he is retired, dismissed or otherwise removed from that office or he resigns or retires from that office.”
every person and office holder mentioned in the provision are banned for life or disqualified from seeking elective office.
The question before the lower court was really as to whether the High Court had jurisdiction to entertain an election petition on the basis of the disqualification of the respondent who had been validly nominated for the election. This is the main issue also before this Court.
The disqualification having been effected by the Commission established under Decree No. 25, there can be no doubt that the Commission has exclusive power to sustain or reject an objection of a person affected by the Decree. It has the power to ban any person or disqualify such person affected and take necessary steps to enforce a declaration to that effect (refer 10 Section 3(8) of Decree No. 25).
By the same Decree any person dissatisfied with a declaration made by the Commission may within 30 days of such declaration refer his dissatisfaction to the “Tribunal” constituted under the Decree for a review of the declaration (refer to Section 5(1) of Decree No. 25). For convenience of reference the provisions read thus-
“3(8) Where the Commission sustains an objection and declares that the person whose nomination, election or appointment is objected to is a person affected by this Decree, it shall declare the person banned or disqualified as the case may be and shall take all necessary steps to enforce the declaration”; and
“5(1) Any person dissatisfied with any declaration made by the Commission under this Decree may within 30 days of such declaration apply to the Tribunal for a review of this declaration.”
Needless to say, the Commission, in exercise of the power, purported to act under the provisions of the Decree. Here it must be borne in mind that the Decree itself declares that the decision of the Tribunal established by the Decree shall be final and binding (refer to Section 6 of the Decree which reads thus)-
“6. In any matter referred to the Tribunal under this Decree, the decision of the Tribunal shall be final and binding, and no other court of law or tribunal shall have jurisdiction to entertain any action by way of declaration or review or the issue of prerogative orders or the equitable remedy of injunction or specific performance or by way of appeal or otherwise in respect of any matter arising out of and pertaining to the provisions of this Decree.”
This provision clearly excludes the jurisdiction of a court of law or tribunal, that is to say, any tribunal other than “Tribunal” established by the Decree, and this includes the Courts of law like the High Court and this Court. Furthermore, to put the ouster of jurisdiction beyond any question the Decree further provides in its Section 7 thus –
“7(1) No suit or legal proceedings shall be instituted in respect of any ban, disqualification or any other matter covered by this Decree in any court or tribunal except as provided under this Decree.
(2) No suit or other legal action shall lie against any person for anything done or purported to be done in pursuance of this Decree.
(3) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979 or any other law, any claim, right, declaration or question as to whether any provision of this Decree has been or is being or would be contravened by anything done or purported to be done in pursuance of this Decree shall not be inquired into in any court of law or tribunal other than as provided for in this Decree.
(4) The jurisdiction conferred on the Tribunal by this Decree shall be exercised by it to the exclusion of all other courts of law or tribunals in Nigeria.” (Italics mine)
From my reading of the foregoing provisions there are no ambiguities or inconsistencies in the ouster provisions of the said Sections 6 and 7, such as could be said to leave room for the assumption of jurisdiction by the High Court as respects matters pertaining to the disqualification of any person by the Commission from contesting an election, particularly in view of the underlined words: “anything done or purported to be done in Sub-section (3) of Section 7.
The question whether or not a person has been banned or disqualified as a candidate for election seems to me clearly a matter determinable only by NEC; and the power to review the decision of the Commission having been specially provided for under the Decree, the jurisdiction of the High Court to review or intervene has in my humble view been effectively blocked.
Furthermore, Section 4(1)(d) referred to above having incorporated the provisions of Decree No. 25 into Decree No. 37 the latter Decree can only be properly construed by reference to and applying the former Decree No. 25, and not by treating either of them in isolation.
In view of the foregoing paragraph 3(7) of Decree No. 37 which conferred certain jurisdiction on the High Court and Section 236 of the 1979 Constitution must both be read subject to the said Decrees Nos. 25 and 37. This is so in this case, not only by reason of Section 4(1)(d) of Decree No. 25, but more also by reason of paragraph 34(a)(d) and (2) of Decree No. 37 if read together with the foregoing provisions of the Decree referred to and in their combined effect, in so far as the question is on the jurisdiction of the High Court.
In my humble opinion, until the provisions of Decree No. 25 as incorporated into Decree No. 37 including the procedure for a remedy or review had been exhausted in respect of an election issue before the appropriate channel or body set up by the Decree, it will be inappropriate and wrong in law for any court of law to assume jurisdiction to determine any such matter. I so hold in this case. The High Court certainly lacked jurisdiction to determine the issue.
I now turn to the Second Issue on the eligibility of the respondent to contest election in view of the provisions of Decrees No. 25 and 37. This issue in view of the foregoing cannot properly arise. All the same I propose to discuss it as argued. Here the appellant referred to the view of the learned trial Judge that because NEC failed to act properly in accordance with Decree No. 25 His Lordship could assume jurisdiction by relying on the case of Wilson v Attorney-General of Bendel Stale (1985) 1 N.W.L.R. (Part 4) 572 which is clearly distinguishable.
In that case it was held that the High Court could assume jurisdiction because the act complained of was not carried out by the competent appropriate body. Counsel also referred to Garba v Federal Civil Service Commission (1988) 1 N.W.L.R. (Part 71) at 449. Counsel rightly distinguished that case by saying that in the present case the competent or appropriate authority by law empowered to ban or disqualify any person from contesting election is NEC, and it was agreed by the parties that it was the Commission that disqualified the respondent and the learned trial Judge rightly made a finding to the same effect.
The respondent’s counsel on the other hand submitted that the learned trial Judge held that the respondent had not committed any offence specified in Part 2 of the Decree No. 37 to exclude him from contesting the local government Election. He said that it would be unreasonable to assume that the latter requires only saints to be eligible to be voted for in that case, because the law deliberately specified what class or type of people and what categories of offences would he ineligible to contest elections. Indeed, even saints who wish to contest an elective office could be an affected person unless and until he is cleared by NEC or the Tribunal. The point really is not that Criminal offences or misdemeanours such as affray or assault are excluded from the list of offences necessitating a ban or disqualification, but that any person seeking elective office against whose nomination there has been objection should adopt the procedure laid down for them to be allowed to contest the election and pursue the remedy prescribed.
Counsel to the 2nd to 5th respondents submitted that the intendment of Section 1(1) and Schedule 1 paragraph 1 of Decree No. 25 would be defeated if the word “Tribunal” used in the context of paragraph 1 Schedule 1 is not given a wider interpretation by this Court. My answer to that is that the meaning to be attached to “Tribunal” as defined under the Decree No. 25 is clear and that word cannot be given a wider connotation than that ascribed to it by the Decree. That being the case this case would have been a proper case for a review by that Tribunal. The law in this case provided not only for the grounds of disqualification or for exclusion of persons affected from contesting an election, it also provided for the manner by which the disqualification can be effected, by whom it would be effected, and also how and by whom any disqualification could be reviewed. Above all, it expressly provided for the ouster of the jurisdiction of the courts in clear and unambiguous terms.
I am therefore in no doubt whatsoever that the learned trial Judge indeed acted without or in excess of his jurisdiction in his decision. That being the case, the whole proceeding before the trial Judge is a nullity and void. I hereby so declare.
The grounds of appeal succeed. This appeal is allowed and the judgment of the lower Court is accordingly set aside with costs which I assess in the sum of N250.00 only in favour of the appellant.
Other Citations: (1989)LCN/0096(CA)
