Alhaji Muhammadu Egba Enagi V. Dr. Musa Inuwa & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

On the 6th of December, 1991, the Federal Military Government promulgated into Law Decree No.50. It is the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 Under this enactment provisions were made for the holding of elections in respect of the governors of all the thirty States of the Federation and the members of the States Houses of Assembly for each State. By virtue of the provisions of the said Decree, the National Electoral Commission (NEC) in the exercise of the powers vested in it by the said Decree No. 50, of 1991 had made preparations and organised elections of the Governors and the members of the legislatures to be held on the 14th day of December, 1991 throughout the Federation of Nigeria. The elections were based on the candidates sponsored by the Social Democratic Party (SDP) and the National Republican Convention (NRC). In Niger State, Alhaji Muhammadu Egba Enagi was the candidate sponsored by the S.D.P. while Dr. Musa Inuwa was the candidate sponsored by the N.R.C.

On the 14th day of December, 1991 the gubernatorial elections were held in Niger State. At the conclusion of the counting and the collation of all the votes scored by each candidate by NEC officials, Dr. Musa Inuwa, the first respondent herein was declared duly elected and returned by the returning Officer – Alhaji Yusuf Nuhu, the 3rd respondent herein.

Being dissatisfied with this declaration and return, Alhaji Muhammadu Egba Enagi, the appellant herein, filed an election petition before the Governorship and Legislative Houses Election Tribunal of Niger State established under the said Decree No. 50 of 1991 challenging the declaration and the return of the 1st respondent. In the petition the appellant joined the 1st respondent, the National Electoral Commission and the third respondent. He prayed the Tribunal for the following reliefs:

WHEREOF:

Your Petitioner prays that it may be determined:

(i) that the 3rd respondent has wrongfully returned the 1st respondent as elected with 288, 674 votes as against the petitioner’s 210, 613 votes.

(ii) that the elections were not conducted in accordance/in compliance with the provisions of Decree 50, 1991.

(iii) that the 1st respondent was not duly returned as Governor-Elect and the petitioner, ought to have been and should be so returned.”

The appellant in his petition relies as the grounds of his petition vide paragraphs 8 and 9 of the petition as follows:-

“8 (a) That the 1st respondent, Dr. Musa Inuwa was, at the time of the election not duly returned as he did not obtain majority of lawful votes at the election held on Saturday, 14th December, 1991.

(b) That your petitioner has the higher number of votes cast at the said election and scored not less than one-third of all the votes cast in each of at least two-thirds of all the Local Government Areas in Niger State.

(c) That there was non-compliance with the Provisions of Decree 50, 1991 in the conduct of the elections.

(d) That the first respondent was not qualified to contest or was disqualified from contesting the election. 1st respondent has not satisfied the requirements of Part III of Decree 50 1991.”

9. The final figures for the election as declared by the 3rd respondent were so declared arbitrarily in favour of the first respondent. Dr. Musa Inuwa, in utter disregard of the non-compliance with the law guiding the conduct of the elections of the 14th December 1991″

The trial of the petition came before the Tribunal for adjudication. All the parties i.e. the petitioner and the respondents joined issues in respect of the petition. Pursuant to an application made by the 1st respondent, the Tribunal on the 21st day of January 1992, directed the appellant to supply further and better particulars on paragraph 8(D) of the grounds of the Petition recited above. In compliance with the order the appellant filed the following particulars in the elaboration of the aforesaid ground of Petition 8(D). The particulars supplied read thus:-

PARTICULARS

(i) To qualify to contest the election a candidate must be a registered voter and whose names appears on the register of voters.

(ii) The first Respondent was not registered and is not a registered voter.

(iii) 1st Respondent possesses no voter’s card.”

In addition to the particulars supplied above, the Petitioner also demand and gave Notice to the respondents in the following terms:-

“NOTICE is hereby given the:

(a) 1st respondent to produce in court his voter’s card.

(b) 2nd and 3rd respondents to produce in court copy of voters card presented by 1st respondent.

(c) 2nd and 3rd respondents to produce in court the Register of Voters in respect of the polling Station where 1sl respondent was registered.”

After the determination of some other preliminary matters, the petition proceeded to hearing. One matter which should be mentioned at this juncture, was the preliminary objection raised on the ground of the petition by the appellant in respect of the particulars supplied under ground 8 D with the question of the qualification of the 1st respondent to contest the election on the grounds that he was not a registered voter. The 1st respondent prayed that the ground be struck out. The Tribunal ruled that the objection to the ground will be considered along with the final decision. Accordingly the hearing of the petition commenced. The appellant called three witnesses, the 1st respondent did not call any evidence, while the 2nd and 3rd respondents called three witnesses. After the written addresses of Counsel as directed by it and some oral submissions of Counsel, the tribunal in its judgment delivered on the 13th of February, 1991, the appellant’s petition was dismissed with costs of N300.00 only to the 1st Respondent.

The appellant felt aggrieved with the decision of the Tribunal and has now appealed to this court. The Notice of Appeal contained two grounds of appeal. The grounds read:-

“(1) The learned Tribunal members erred in law in holding that lack of registration of the first respondent as a voter cannot be a ground of an election petition.

PARTICULARS

I. “… the provision of sub-paragraph (a) above is intended to limit the grounds upon which an election E petition may be questioned where the non-qualification or disqualification of a candidate is in issue.

(page 131 lines 26-29 of the record of the proceedings)

2. Under S. 91(1)(a) of Decree 50 it is the Power of the Chief Electoral Officer or his agent that cannot be challenged.
3. The substantive provisions of Section 33 of Decree 50 supercede the provisions in paragraph 5(3) of Schedule 5 thereof.
4. Under paragraph 5(3) of Schedule 5. It is the decision of the Chief Electoral Officer or his agent that cannot be challenged.
5. Neither the Power nor the decision of the Chief Electoral Officer or his agent was made the ground of the petition.

(ii) The learned Tribunal members erred in law in holding that the Tribunal lacked jurisdiction to entertain a petition based on the ground that the 1st respondent is not a registered voter in Nigeria.

Particulars

1. “… this Tribunal has no jurisdiction to entertain a petition based on the ground that a respondent is not a registered voter in Nigeria…”

Page 132 lines 30 to 32 of the record of proceedings.

2. S. 88 (1) gives a Tribunal set up thereunder an unfettered jurisdiction to hear and determine election petitions.
3. S.91 (1) while allowing the questioning of the election of a person who was not at the time of his election qualified to be elected does not however allow the challenge of the power of the Chief Electoral Officer with regards to the nomination of the said elected person.”

In accordance with the Practice Directions issued by the President of the Court of Appeal briefs of argument were filed and exchanged. At the hearing of the appeal before this court learned counsel made copious oral submissions in the elaboration of the arguments contained in their respective written briefs.

It is convenient at this juncture and before dealing with the grounds of appeal and the issues formulated by counsel for the determination of the appeal to emphasise that the appellant is not complaining with the finding of the Tribunal on his grounds of petition as adumbrated in paragraph 9 and the first 3 complaints in paragraph 8 of the petition. In otherwords, the finding of the Tribunal thus:-

“… on those basis we must hold that the first respondent and not the petitioner obtained majority of lawful votes at the election held on Saturday 14th December,1991.

We are satisfied from the results specified above that the 1st respondent had a clear majority of the total votes cast at the election, having scored 285, 247 out of a combined total of 494, 914 after allowing for the aforesaid rejected votes.”

xxx

“Our finding is that the first respondent had more than one-third of the total votes cast in all the Areas except one, viz, Bida. Perhaps we should also mention that even in the 9 Local Government Areas complained of 1st respondent had more than one-third of the vote in each of them… the first respondent must be deemed to have been duly elected …”

The appeal now at hand as can be noticed from the grounds reproduced above is concerned with only one point, and it is trite that when there is an appeal against a judgment of a lower court on one point, the appeal stands or falls on that point alone and all other issues not appealed against or argued still rest as part and valid decisions of the lower court see for example ODIASE v. AGHO 1972 3 SC 73 at 78. The learned counsel for appellant concedes this point in his brief when he states that this appeal relates only to the question of the qualification or disqualification of the 1st respondent to contest the election. All the other grounds of the petition are therefore not in issue and are accordingly irrelevant to the determination of the matter before this court. Now, coming to appeal proper, the learned counsel for the appellant has identified and formulated two issues for the determination of the appeal. The issues proposed for the appellant read:-

(i) whether a Tribunal set up under Decree No. 50, 1991 lacks jurisdiction to entertain a petition based on the ground that a respondent is not a registered voter in Nigeria as required under S.33 of the said Decree.

(ii) whether lack of registration of a respondent as a voter in Nigeria cannot be made a ground of an election petition under Decree 50, 1991.”

For the 1st Respondent the issues for determination formulated read thus:-

i. “Whether the trial Election Tribunal was right in declining jurisdiction to entertain a petition based on the ground that a respondent is not a registered voter in Nigeria once his nomination been cleared in that respect by the National Electoral Commission.

ii. whether s. 33 of Decree 50 conflicts with paragraph 5(3) of Schedule 5 of Decree 50 of 1991.”

In their joint brief the learned counsel representing the 2nd and 3rd respondent identified and formulated more or less identical issues for the determination of the appeal.

It is crystal clear that all the issues posed for determination in all the three briefs emanate from the grounds of appeal. Before I deal with the submissions of counsel on these issues, it is desirable to set out in full the finding on decisions of the Tribunal on which this appeal revolves itself for adjudication.

As mentioned above, the Tribunal found:-

(i) that the conduct of the election was substantially in compliance with the provisions of the Decree No. 50.

(ii) that the 1st respondent scored a majority of the lawful votes cast during the election and

(iii) that the 1st respondent has satisfied the provisions 37(1)(b) of the Decree in that “he has not less than one third of all the votes in each of at least two-thirds of all the Local Government Areas” of Niger State.

The Tribunal having so decided proceeded to deal with the other matter upon which the petition was based or grounded that is the allegation contained in paragraph 8D reproduced above. That ground complains specifically that the 1st respondent was not a registered voter and was therefore not qualified or was disqualified to contest the election. The Tribunal held:-

“Going by the evidence before us, the screening committee would require, among other documents, the production of a voter’s registration card because a proposed candidate must be a registered voter in Nigeria. That much is, of course, one of the qualification requirement of the law (see S.33 of the same). But what happened in the case of 1st respondent was that apart from his holding a voter’s card, his name was not in any of the Commission’s register of voters; and that is still the position until now. Yet he was cleared by the commission upon the recommendation of its screening Committee. It was after the said clearance that his nomination form (EC 4B) was presented and accepted.

It was the discovery of the situation described above that gave rise to the Petitioner’s allegation that the 1st respondent was not qualified to contest the December, 1991 election. There is some merit in that complaint. To begin with, one must wonder why a strong Committee chaired by the highest NEC official in the state should take so lightly the registration of a candidate seeking election to the office of governor. After all, there were only two candidates for that office. We take the view that there should be no difficulty in ensuring that every requirement of the law was complied with particularly those specifically set out in S.33 thereof … xxx

During the proceedings, we were treated to various reasons why the 1st respondent was cleared without his name being on any register. His voter’s registration card (Exh.H) and his nomination paper (“Exh. J) had no real bearing to any register that could be used to support his clearance. We were told that the holding of a voter’s card was enough to clear a candidate. What then is the use of the provision of S.33 (cited above) requiring a candidate to be a registered voter in Nigeria. Indeed, the Administrative Secretary of NEC (PW 1) admitted that it was an oversight on their part not to have compared the voter’s registration card of the 1st respondent with the relevant register of voters during his screening. That admission is more reasonable and forthright than any of the excesses with which we were inundated. The law is there to be complied with and not for anyone to side-tract lightly for any reason. This is more so in respect of a mandatory provision like the one under consideration.

The sum total of all the above is that we are not impressed, let alone being satisfied by the various excuses given to us by NEC officials. These excuses can only open door to possible manipulations of the law and in procedural rules. Our own view is that there was a clear breach of the provision in S.33 of the law upon which it should be sufficient to hold that the 1st respondent was not qualified for election to the office of governor. A voter’s registration card is not what is contemplated in that provision.

Having said much, it finally remains to consider whether the breach referred to above can be made a ground of an election petition in this Tribunal. xxx

Our answer to that question must be in the negative.”

The Tribunal then proceeded to interprete the various sections of Decree No. 50 and finally came to the conclusion as follows:-

“In the final result, we hold that this Tribunal has no jurisdiction to entertain a petition based on the ground that the respondent is not a registered voter in Nigeria once his nomination has been cleared in that respect by NEC”

I have reproduced above, “the decision of the Tribunal “in extenso” so that the submissions of counsel will be fully appreciated. It is now convenient to discuss the submissions of counsel.

The learned counsel for the appellant argued the two issues he formulated together, indeed they are interwoven one cannot stand without the other. He argued firstly that a person shall be qualified for election to the office of a governor if he is amongst other things a registered voter in Nigeria vide S.33 (c) of Decree No. 50 of 1991. The provision of registration of a candidate is mandatory and deal with only the qualification to contest the election and has no relevance or bearing on the matter of Nomination of a candidate which is mainly the concern of a political party. S.91 (1) (a) of Decree No. 50 clearly state that an election can be questioned if at the time of the election the person whose election is questioned was not qualified or was disqualified from being elected to the office of governor. He argued that the proviso to paragraph (a) of S.91 (1) does not affect the qualification of a candidate but only his nomination.

Similarly, the learned counsel postulated that the provision of paragraph 5(3) of Schedule 5 of the Decree deals solely on questions relating to nomination of a candidate and not in his qualification for office of a governor as provided for under S.33(c). The learned counsel emphasized and stressed the issue that there is nothing in the proviso to S.91 (1) (a) or in paragraph 5(3) of Schedule 5 affecting the qualification of a candidate to contest an election under the provisions of S. 33 (c). the provision only deals with the nomination of a candidate to contest the election. Learned Counsel refers to the cases of BAKAM V.ABUBAKAR (1991) 6 NWLR (Pt. 199) page 564 at 573/574; ONUOHA V. OKAFOR & OTHERS (1983) 2 SCNLR 244. Secondly the Learned Counsel argued that the words used in the relevant provisions are QUALIFICATION and NOMINATION and that these words are clear and unambiguous and the court in interpreting the statute must give them their plain and ordinary meaning. Vide AFRICAN NEWSPAPERS V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (Pt. 6) 137; SAKA ATUYEYE AND OTHER V. EMMANUEL ASHAMU (1987) 1 NWLR (Pt.49) 267 D at 278; U.T.C. (NIG.) LTD. V. CHIEF J. P. PAMOTEI AND OTHERS (1989) 2 NWLR (Pt. 103) 244; SAVANNAH BANK (NIG.) LTD. V. AJILO (1989) 1 NWLR (Pt. 97) 305. The learned counsel further canvassed that the Tribunal having found that the 1st respondent was in clear breach of S. 33 (c) upon which it was sufficient to declare him not qualified for election, the tribunal ought to have declared the election of the 1st respondent null and void. Learned Counsel for this proposition relied on the cases of ALHAJI MOHAMMED V. MALLAM ALl AND ANOTHER (1989) I NEPLR 110; (1989) 2 NWLR (Pt. 103) 349; YEROKUN V. ADELEKE (1960) 1 NSCC 87; (1960) SCNLR 267. Finally on this point the Learned Counsel submits that the Tribunal has jurisdiction to hear and determine the petition because the point canvassed i.e. (non-registration of the first respondent as voter) by the Petitioner is centered on what qualified the first respondent to aspire for the office of Governor and not as to his nomination which falls within the functions of the NEC to determine.

Thirdly, and in the alternative, the learned counsel for the appellant submits that even if it is assumed but with out his conceding it, that paragraphs 5(3) of Schedule 5 deals with qualification to contest an election in line with S. 33, it will mean that paragraph 5(3) of Schedule 5 takes away the right to petition to the Tribunal as granted by S.33. In effect the two provisions will be in conflict and in such a case the provision of S.33(c) shall prevail. Vide CRAIES on STATUTE LAW by S.G.G. Edgar (7th Edition) PP. 224-225; FEDERAL CIVIL SERVICE COMMISSION AND OTHERS V. LAOYE (1989) 2 NWLR (PT. 106) 652 at 711; DEAN V. GREEN (1882) 8 P.D. 79 at 89; R. V. BAINES (1840) 12 A & E 210 and also the AJILO case supra. Learned counsel for the appellant finally submitted that the appeal be allowed.

The learned counsel for the 1st respondent on the other hand adopted his brief of argument and also proffered oral submissions to enlarge in the discourse the arguments contained in his brief. He submits that in order to appreciate the decision of the Tribunal, it shall be necessary to closely examine the provisions of section 33, 34, 83, 90 and 91 and paragraph 5 (1) (2) and (3) of Schedule 5 to Decree No. 50. He submits that upon the examination of the conditions set out for qualification and disqualifications of a candidate contesting an election the Decree goes further to provide which of them can or cannot be used as a ground for an election petition before an Election Tribunal. It is argued that by the power vested in it, it is the duty of the NEC upon the receipt of a candidates nomination papers to determine if the qualifications and disqualifications in sections 33, 34 and 83 of Decree No. 50 of 1991 apply to the candidate or not. It is further submitted that by the proviso to S. 91 (1) and paragraph 5(3) of Schedule 5, where the NEC had decided on any of the matters specified in sub-paragraph 5 (2) (a) – (g) for example, whether a candidate is a registered voter in Nigeria. Such determination shall not be a ground of any election petition in any Election Tribunal established under the Decree. The combined effect of the proviso to S.91(1) and paragraph 5(3) of Schedule 5 is to prevent any Election Tribunal or Court from taking cognisance of a complaint in an election petition; where the complaint refers to any matter specified in sub-paragraph 5(2) (a) – (g) of Schedule 5. The complaint of the appellant in paragraph 8(d) (ii) is the same as item f of sub-paragraph 5(2) of Schedule 5. Learned counsel refers to the unreported case of GBAZUEAGU N. GBAZUEAGU V. DR. MWODO and others Suit No. EP/E/l/92 decided on 5/21 1992.

The learned counsel postulates that the cases cited by the appellant’s counsel are distinguishable from the case at hand. Whereas in all the cases cited the issue was on the supremacy of a political party to sponsor or nominate a candidate for an election while the issue in this appeal is whether having regard to S.91 and the provisions contained in Schedule 5 particularly the matters specified in sub-paragraph 5(2), (a) – (g), thereof, the Tribunal has jurisdiction to entertain a complaint based on those matters. On this point it is lastly submitted that the Tribunal was right in holding that it lacked jurisdiction to entertain the petition based on the ground that the respondent is not a registered voter in Nigeria once his nomination has been cleared in that respect by NEC.

On the alternative argument, the learned counsel for the 1st respondent submits that the complaint is misconceived as it overlooks the clear import of Section 33, 34, 83. 91(1) and 92 of the Decree. It is further argued that Section 33 does not confer any right of petition it merely lists out qualification for election just as sections 34 and 83 enumerate disqualification. The right to present a petition is set out only in Section 91(1) of the Decree.

It is further submitted that there is no conflict or contradiction between section 33 and paragraph 5(3) of Schedule 5 and accordingly the legion of authorities cited by the appellant are not appropriate to the issue under discussion. He also added that the proviso to S. 91 clearly prevents a petitioner form making a ground of petition on any of the matters specified in paragraph 5(2) (a)-(g) of Schedule 5. Learned counsel finally prays the Court to dismiss the petition.

The learned counsel for the 2nd and 3rd respondents adopted, the submissions contained in their joint brief. In the main, he supports the decision of the Tribunal and adopted the arguments presented for the 1st respondent. He added that the 1st respondent submitted all the documents required under the law for his nomination to the NEC and that the Chief Electoral Officer was satisfied with all the documents presented to NEC by the 1st respondent and after carefully examining the documents, he made a decision that the 1st respondent was qualified to contest the

election and the Tribunal had found as a fact that:

“From the evidence before us, there could be no doubt that the 1st respondent was so screened and eventually cleared to contest the election in question”.

It is further argued that the jurisdiction of the Tribunal to entertain an Election Petition is governed by the provision of s. 91 of the Decree. It sets out clearly the grounds upon which an election can be questioned. The issue, raised therefore, under paragraph 8(d) (I) (II) and (III) of the appellant’s petition relating to the non-registration of the 1st respondent as a voter in Nigeria cannot be a ground upon which his election can be questioned. As mentioned above the arguments of counsel for the 2nd and 3rd respondents are on the same line as those of the 1st respondent it is therefore not necessary for me to repeat them as they would serve no purpose.

Now from the submissions of counsel summarised in the preceding pages of this judgment the following issues seem to me to be the matters which fall for determination.

(1) Could an election be questioned on the grounds of a breach of the provisions of Section 33 (c) having regard to the provisions of S.91 1 (a) and paragraph 5 (3) of Schedule 5 of Decree No. 50 of 1991?

(2) Are the provisions of paragraph 5(3) of Schedule 5 in conflict with the provisions of S.33(c) of the Decree and if so what are the consequences?

To answer these questions it shall now be necessary to set out the relevant provisions and these are:-

“Section 33.

“A person shall be qualified for election to the office of a governor if –

(a) not applicable

(b) not applicable

(c) he is a registered voter in Nigeria

(d) not applicable

(e) not applicable

Section 91(1)

“An election may be questioned on the following grounds –

(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected to the office of Governor or as a member of a legislative house:

Provided that the powers of the Chief Electoral Officer of the Federation or any Officer delegated by him in that behalf as to the validity of nominations under paragraph 5(3) of Schedule 5 to this Decree shall not be a ground for such election petition.

(b) That the election was invalid by reason of corrupt practices or offences against this Decree; or

That the respondent was not duly elected by a majority of lawful votes at the election.

Section 91(2)

An act or omission which is contrary to an instruction of direction of the Commission or of any Officer appointed for the purpose of the election but which is not contrary to the Decree shall not of itself be a ground upon which the election may be questioned: (proviso is irrelevant).

Paragraph 5(3) of Schedule 5.

“Not withstanding any other provision of this Decree or any other law, the decision of the Chief Electoral Officer of the Federation or any officer delegated by him, that a candidate has been validly nominated under sub-paragraph 2(a)-(g) of this paragraph shall not be the ground of any election petition in any Election Tribunal established under this Decree or in any court of law in Nigeria.”

Perhaps, it may also be necessary to reproduce sub-paragraph 2(a)-(g) of paragraph 5 of Schedule 5 for the proper understanding of paragraph 5(3) immediately mentioned above. it provides:-

Paragraph 5(2)

“The Chief Electoral Officer of the Federation or any Officer delegated shall be entitled to hold the nomination paper invalid only on one or more of the following grounds:-

(a) Not relevant or

(b) Not relevant or

(c) Not relevant or

(d) Not relevant or

(e) Not relevant or

(f) That the candidate is not a registered voter in Nigeria. or

(g) Not relevant or

(h) That the candidate is disqualified under any other provision of this Decree”,

Having set out the statutory provisions relevant to the determination of this appeal, I shall deal with the two questions posed. I shall first deal with the relationship between S.33(c) and S.91 (1) and the provisions in the Schedule.

The crux of the appellant’s contention is that since the 1st respondent was not a registered voter in Nigeria. his nomination ought to have been declared invalid under the provisions of S. 33(c) of the Decree and that the election of the 1st Respondent should be nullified. But the jurisdiction of the Tribunal to hear and determine the election petition can only be filed pursuant to the provisions of S.91 of the Decree. In my view the provisions of S.33(c) are subsumed in S.91. It is only under the provisions of S.91 of the Decree that a petition can be raised or grounded. S.91(1) provides that an election may be questioned on the ground that a respondent was at the time of the election not qualified or was disqualified from being elected to the office. But the section limits the incidence of questioning the validity of the nomination or qualification where the Chief Electoral Officer of the Federation or any Officer delegated by him in that behalf when he decided that the nomination or qualification is in order. In such circumstances the qualification or disqualification of a candidate to an election cannot be a ground in a petition to question the result of the election. In the instant case the 1st respondent presented his nomination paper it was clearly evident that the documents were screened and the 1st respondent was cleared to contest the election. In my view, the proviso to S.91(a) is applicable to limit and prevent the appellant from questioning the qualification of the 1st respondent to vie for the election to the office of the Governor of Niger State. Under S.33 (c). A similar situation though under a different enactment arose in the case of LASEBIKAN V. DADA (1960) W.R.N.L. P. 121 where the electoral Officer having received the nomination form of a candidate and having communicated to him on the prescribed form the validity of his nomination, the validity of such nomination is concluded by law despite the fact the one of the candidate’s nominators did not appear on the register of voters.

It is trite law that where a Tribunal has been specifically assigned by law to determine a question, it is not the business of another tribunal which is not given express powers to determine such question or is prohibited from determining such question to venture into the determination of the question. Also it is my view that the question sought to be determined by paragraph 8(d) of the petition that the 1st respondent was not qualified to contest the election because he is not a registered voter cannot be enquired into by the Tribunal having regards to the proviso to section 91 (1) (a) of the Decree. See also the judgment of Omolulu Thomas, J.CA. in the case of SIKIRU IKUOGBOGUN and others v. CHIEF ADELEKE RABIU (1989) 4 NWLR (Pt.114) page 216. Though the decision was based under a different enactment the views of the learned justice are very illuminating. He said at page 226 of the Report:-

“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 the National Electoral Commission and the power to review the decision of the Commission having been specifically provided for under the Decree, the jurisdiction of the High court to review or intervene is in my humble view been effectively blocked.” (Italics mine) In the same vein, where as in the instant case, the Chief Electoral Officer or his agent has determined the qualification of the 1st Respondent to vie for the election, the Tribunal has no jurisdiction to review such decision. Indeed. The appellant cannot by virtue of the proviso to S. 91(1)(a) question the election of the 1st Respondent after the 3rd Respondent has decided that the 1st respondent was qualified. The argument of counsel for the appellant that the words “nomination” and “qualification” are different to my mind only amounts to a difference without any distinction. A candidate can only be qualified” before he can be “nominated” So once a candidate is validly nominated and the nomination is screened and cleared by NEC, the question of “qualification” becomes no longer an issue. And not therefore subject of review by the Tribunal. See Onuaha v. Okafor (1983) 2 SCNLR 244 see also Balonwu v. Chinyelu (1991)4 NWLR (Pt.183)page 30. See also the unreported case of FRANCIS DOUKPOLAGHA V. RUFUS ADA GEORGE and two others Suit No. EP/RV/1/92 of the 10th day of February, 1992.

The Tribunal in the instant case. the subject matter of this appeal arrived at its conclusion on this issue in these terms:

“It seems to us clear that the proviso to sub-paragraph (a) above is intended to limit the grounds upon which an election petition may be questioned where the non-qualification or disqualification of a candidate is in issue. It does so first by making any decision of the NEC final and unquestionable with regard to the validity of the nomination of such a candidate. In other words, the issue of validity or invalidity of a nomination paper rests entirely with the NEC, as provided in paragraph 5 sub-paragraph (1) and (2) of Schedule 5 of the same law.

Now sub-paragraph 2 of paragraph 5 referred to above sets out the grounds upon any of which a nomination paper may be held to be invalid by NEC. One of them is item (f) which is “that the candidate is not a registered voter in Nigeria” – which incidentally is a requirement for qualification under S.33 of the law. But then paragraph 5 (3) of the same Schedule 5 goes on to provide that the decision of NEC that a candidate has been validly nominated under any of the grounds in items (a) to (g) of sub-paragraph 2 “shall not be a ground of any election petition in any Election Tribunal established under (the) Decree or in any Court of Law in Nigeria.”

As already indicated, item (f) which is included is the same as section S.33 (c) of the Law. So is item (g) which is the same as S. 33 (e). But interestingly enough, item (h) of that sub-paragraph 2 was deliberately excluded. It is to the effect that a candidate who “is disqualified under any other provisions of (the) Decree is not included under the Exemption from questioning. Thus, we find, lack of qualification in respect of 33 (a) – citizenship – or (b) age of 30 years or (d)-sponsorship by a political party in Nigeria can still make a ground on which to question an election or nomination.”

The above exposition of the provision of the Decree cannot be faulted, the interpretations of the statute are completely in accord with mine. I have accordingly no hesitation in answering the first question I raised in the negative. That is to say; by the combined effects of S. 91(1) (a) and sub-paragraphs (2) and (3) of paragraph 5 of Schedule 5 of the Decree, the election of the 1st respondent cannot be validly questioned in the election petition having regard to the fact that the agent of the Chief Electoral officer of the Federation has screened his nomination papers and cleared him to contest the gubernatorial elections. In the result the submissions of counsel for the appellant on this issue are misconceived and are accordingly rejected by me.

Finally, the only issue remaining for discussion is the question whether the mandatory provisions of S.33 is a more substantial provision and therefore takes precedence and prevails over the provisions of the schedule to the Decree. It is suggested and argued by the learned counsel for the appellant that there is conflict in the section and the provisions contained in the schedule. He argued that since the provisions in the schedule contradict the earlier provisions in the enactment, the provisions in the earlier clause in this case S.33(c) prevails against the schedule. This issue was not adjudicated upon by the Tribunal nor was it raised at all. It is a fresh issue of which no leave was sought and obtained for a decision by this Court.

Furthermore, the substance of the complaint even though couched as a particular to the ground of appeal is not clearly stated to be an issue for the determination of the appeal. The questions or issues for determination in an appeal are not synonymous with grounds of appeal filed along with the notice of appeal while the grounds of appeal underscore the defects in the judgment being attached the questions for determination emphasize the kernel of the reasons for seeking the error in the judgment to be corrected. See NIGER PROGRESS LTD. V. NORTH EAST LINE CORPORATION (1989) 3 NWLR (Pt.107) 68 at 82 and 99; DIBIAMAKA V. OSAKWE (1989) 3 NWLR (Part 107) 101. The question is not made a subsidiary issue worthy of any consideration. See ADELAJA V. FANOIKI (1990) 2 NWLR (Pt. l31) page 137

In any event, as mentioned above, the question proposed for determination whether subsidiary or substantive, was not raised and determined in the Tribunal for its determination. The grounds of appeal against a decision and the issue formulated therefrom must not only relate to the decision appealed against but should also be a challenge to the validity of the ratio of the decision. See EGBE V. ALHAJI (1990) 1 NWLR (Part 128) p. 546 at 590.

But, as far as this matter on appeal is concerned, this is the Court of last resort. It is perhaps prudent on our part to deal with the issue since apparently no objection has been raised by the respondents. See OPUTA V. EZEANI (1963) 1 All NLR 149; (1963) 1 SCNLR 247.

With profound respect to the learned counsel for the appellant, his complaint is clearly misconceived. I have dealt earlier. On this issue and I do not need to repeat myself. Suffice it to say that there is no conflict whatever between the provision of S.33 (c) and the provisions in the Schedule 5. The right to present a petition under the Decree is provided for under S.91 of the Decree and not under S.33(c). It is clear that S.91 has incorporated in it the provisions of the Schedule referred to above and in my view, the provisions of S.33 (c) do not prevail on the Schedule. The Schedule as shown above merely expatiated the provisions of S. 91 which is the section upon which an election can be questioned.

In the result this appeal fails as lacking in merit and it is hereby dismissed. The decisions of the Tribunal upholding the election of the 1st Respondent as the Governor of Niger State is hereby upheld. The appellant shall pay costs to each set of the respondents herein assessed at N1000.00 each.

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Other Citations: (1992)LCN/0134(CA)