Tajudeen Ola Oladipo V. George O. Oyelami & Anor (1989)
LawGlobal-Hub Lead Judgment Report
IDRIS LEGBO KUTIGI, J.C.A.
The petitioner, now appellant, filed an Election Petition in the High Court, Ibadan challenging the election of the 1st respondent as the Chairman of Oluyole Local Government in the Local Government elections held nation- wide on 12th December, 1987. Eight candidates contested the chairmanship election. The 1st respondent was declared as duly elected having scored 7,930 votes. The appellant came second with 7,005 votes. In the petition the appellant prayed that it be determined that –
“1. George O. Oyelami (1st respondent) cannot hold any elective office for life.
- The election of George O. Oyelami is null and void and of no effect.
- An order restraining George O. Oyelami from holding and or performing any duty as the chairman for Oluyole Local Government; and
- An order that the petitioner (appellant) be declared duly elected as the Chairman for Oluyole Local Government.”
Among the several grounds stated for filing the petition are those contained in para. 3(i)-(x) as follows.
“3. And your petitioner states that:-
(i) The petitioner was the sixth chairmanship candidate while the first respondent was the Eight Chairmanship contestant.
(ii) The said First respondent was the chairman for Oluyole Central Local Government between 1981 and 1983.
(iii) While the First respondent was the Chairman of Oluyole Central Local Government, he got the sum of N11,500 as Contingency Fund.
(iv) The First respondent used the said amount in a manner other than the purposes it was intended.
(v) The First respondent was arrested in 1984 for corrupt enrichment by the Special Investigation Panel.
(vi) Special Investigation Panel Investigated the case.
(vii) The First respondent was indicted by the Special Investigation Panel for conspiracy with Chief Bisi Akande and Chief Bola Ige. The Special Investigation Panel Report dated 19/2/87 will be relied upon at the trial.
(viii) The First respondent was asked to refund N5,500.
(ix) The Special Investigation Panel is one of the Bodies charged with the duty to investigate the old Politicians and other Public Office Holders.
(x) Persons or Politicians indicted and/or found guilty by the Panel are banned for life from holding any elective Office.
The 1st respondent denied these allegations and “put the appellant to the strictest proof thereof.” At the trial in the High Court the appellant gave evidence and called three other witnesses, while both respondents testified and called only one witness. The learned trial Chief Judge in a reserved judgment considered the evidence led at the trial and dismissed the petition in its entirety on the ground amongst others, that “the 1st respondent was not, and is not, a person banned for life, nor a person banned from seeking elective office” under Decree No. 25 of 1987.
It is against this decision that the appellant has now appealed to this Court. Seven grounds of appeal were originally filed. With leave of court five Amended Grounds of Appeal were substituted. At the commencement of hearing of the appeal the appellant sought for and was granted extension of time to appeal against the said judgment, extension of time within which to apply for leave to appeal and an order granting him leave to appeal. Consequently a Notice of Preliminary Objection earlier filed by the 1st respondent was withdrawn and struck out.
Counsel on both sides filed their briefs. They adopted their briefs of argument and in addition made oral submissions before us.
Mr. Lardner learned senior counsel for the appellant on page 2 of his brief identified five issues for determination in the appeal.
Mr. Fagbemi learned counsel for the 1st respondent, has however set out twelve issues in his brief for determination while Mr. Oyetunde, learned Principal State Counsel for the 2nd respondent identified four issues only. Mr. Fagbemi has however submitted preliminarily the issue of jurisdiction of the High Court to adjudicate in the matter and whether or not the condition precedent to the exercise of jurisdiction had been complied with by the appellant. I propose to take this aspect of the appeal first as it will decide ultimately whether or not other issues would have to be considered at all.
Issue of Jurisdiction
It must be observed at once that the issue does not arise from any of the five grounds of appeal filed by the appellant. It was also not raised at the trial in the High Court. It was, however, raised for the first time in this court by counsel for the 1st respondent in his brief of argument. It is significant to observe also that although the 1st respondent’s brief was served on the appellant, his counsel did not deem it necessary to file Reply brief on behalf of the appellant on the issue of jurisdiction as permitted by the Rules of Court. He made only brief oral comment in court. Suffice it to say at this stage that it is well settled that the issue of jurisdiction can be raised at any stage of the proceedings and up to the final determination of an appeal by the Supreme Court. The court can also raise it suo motu at any stage. It is an issue which goes to the root of the matter so as to sustain or nullify the trial court’s decision or order in respect of the subject matter of the case (see for example Obikoya v. Registrar of Companies & Anor (1975) 4 S.C. 31; Pan Asian Co Ltd. v. N.I.CO.N. (1982) 9 S.C. 1; Barclays Bank v. Central Bank of Nigeria (1976) 6 S.C. 175).
Mr. Fagbemi for the 1st respondent contended that Decree 25 of 1987 “was socio-political, as opposed to a legal matter which the legislature did not desire to subject to the searchlight or jurisdiction of the regular courts. He said the Decree (25) under section 2 empowered the 2nd respondent to declare at any time that a person either nominated to contest or a person who had in fact been elected to any elective office, was affected by that Decree, i.e. a person banned from holding such office. That sections 3-4 therein spelt out what any member of the public (including the appellant) might do by way of objection to the candidature and or election of any person. That section 5 gave exclusive jurisdiction to the Transition to Civil Rule Tribunal (hereinafter called the Tribunal) to act as an appellate body against any decision of the National Electoral Commission (hereinafter called N.E.C.), and that the Tribunal’s decision was final. He said by section 7(1) of the Decree no matter covered by it (Decree 25) shall be the subject of any legal proceedings in any court or Tribunal. We were also referred to para. 3(XIV) of the appellant’s petition which indicated that a report was made by him to the 2nd respondent alleging that the 1st respondent was a person banned for life; and that para. 4 of the Reply of the 2nd respondent showed that the 2nd respondent had not completed investigation on the appellant’s complaint.
It was submitted therefore that the High Court had no jurisdiction to entertain the appellant’s petition. He referred particularly to reliefs 1 & 2 of the petition. Continuing with his submissions, learned counsel said Decree 34 of 1987 was itself based on Decree 25 of 1987. He referred to section 34(1)(a) of Decree 37 and urged us to hold that the words “not qualified” therein could only mean “not qualified” under section 4(1)(d) of the same Decree 37, and that section 34(1)(a) could not be construed in isolation of section 4(1)(d) thereof.
It was further submitted that there was no evidence that NEC or the Tribunal had banned the 1st respondent herein from contesting an election. He said a certificate or other instrument from either of the two bodies was required to show that the 1st respondent was so banned.
That the High Court had no power to grant reliefs (1) & (2) claimed by the appellant which were specifically provided for under Decree 25 and not under Decree 37. That the appellant had jumped the gun by going to the High Court instead of waiting for the decision of NEC after lodging his complaint against the 1st respondent. He said we should hold that the petition was incompetent and that the High Court lacked jurisdiction to entertain an election petition based on the provisions of Decree 25 especially when the petitioner was not seeking to enforce the decision of NEC or of the Tribunal.
It was also submitted that even if the High Court had jurisdiction the conditions precedent to the exercise of that jurisdiction had not been complied with. Counsel referred to Exhs. C to C5 and said that the provisions of section 3(1) – 3(9) of Decree 25 had not been fully utilized or exhausted and there was therefore no cause of action yet. It was submitted that in an election petition, all preliminary statutory steps towards presenting a petition were fundamental and ought to have been strictly complied with. He cited in support – Ishola Noah v. British High Commission (1980) 8-11 S.C. 100 at 101; Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 at 595. We were also referred to the Digest of the Supreme Court Cases by Chief Fawehinmi, Vol. 3 page 723 under Elections.
Mr. Lardner, S.A.N., in a brief oral reply contended that the fact that a person fell within the ban in Schedules 1 or 2 of Decree 25 of 1987 was a ground upon which a petition pursuant to Local Government Elections Decree 37 of 1987 could be founded. He relied on the case decided by the Benin Division of this court (Coram: Ogundare, Ogundere and Achike, J.J.C.A) Ref. No. CA/B/91/88 Moses Iruobe v. Shagari Oni & Anor of 9/12/88, and submitted that in so far as that decision purported to state the law, this Division of the Court was bound to adopt and follow it. He did not however elaborate.
Mr. Oyetunde for the 2nd respondent offered nothing in respect of the issue of jurisdiction either in his brief or in Court before us.
Decree No. 25 of 1987
This Decree, Participation in Politics and Elections (Prohibition) Decree, places a ban or a disqualification on certain persons from contesting, holding or being appointed to any elective office or post or from contesting or seeking any public office or post as contained in Schedules 1 & 2 thereof. The National Electoral Commission (NEC) is empowered under the Decree either on its own motion or upon the objection by any person to declare, at any time, any person nominated to contest or already elected or appointed to any office or post, as a person affected by the Decree and that such a declaration shall have the effect of nullifying such nomination, election or appointment (see section 2). Section 3 subsections (1) – (9) spell out what any member of the public should do by way of objection to the nomination, election or appointment of any person affected by the Decree. Section 4 also sets out how any person may apply to the Commission for a determination that he is a person affected by the Decree. Section 5 then vests in the Transition to Civil Rule Tribunal the power to act as an appellate body from the decision of NEC and provides under section 6 thereof that the decision of the Tribunal shall be final.
Decree 37 of 1987.
This Decree, Local Government Elections Decree, provides in section 4(1)(d) that;
“4.(1) 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 elections in accordance with the Participation In Politics and Elections (Prohibition) Decree, 1987.”
Sections 31 & 32 give the High Court original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council and to receive election petitions.
Section 34 sets out four specific grounds on which an election may be questioned. There is however what I call an important proviso at the end of the section. Section 34(1)(a), which is relevant in this appeal, says-
“34.(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 as a member of a Local Government B Council: or
(b)……………. (omitted)
(c) …………… (omitted)
(d) …………… (omitted)
(2) …………… (omitted)
PROVIDED that nothing in paragraph (a) of subsection (1) of this section shall affect or invalidate any decision of the Commission or of the Transition to Civil Rule Tribunal that a person has been banned or disqualified pursuant to or under the Participation in Politics and Elections (Prohibition) Decree, 1987.”
An appeal lies from the decision of the High Court to this Court whose decision shall be final [see section 36 (ibid)].
It is to me clear from the provisions of Decree 37 referred to above that the High Court is unquestionably vested with jurisdiction to entertain the appellant’s election petition when it did. I reject the contrary submission of Mr. Fagbemi for the 1st respondent. I however agree with Mr. Fagbemi that the expression “not qualified” in section 34(1)(a) means “not qualified” under section 4(1)(d), and that the two provisions must be read together.
I now turn to the problematic clause, the proviso to section 34(1)(a) referred to above. The proviso appears to me to be saying that even though the High Court has the power to adjudicate, its decision shall have no effect on any decision of NEC or of the Transition to Civil Rule Tribunal, that any person has been banned or disqualified under Decree 25 of 1987. In other words, where the decision of the court tallies with the decision of NEC or of the Tribunal under section 34(1)(a) above, that a person is banned or disqualified all is well and good. But where the decision of the Court is in conflict with that of NEC or Tribunal, the decision of the NEC or Tribunal prevails except probably in a rare case where NEC or the Tribunal said someone was qualified and the court found him not qualified. This sort of situation is to say the least very unsatisfactory. As things stand, nothing stops any person banned or disqualified by the High Court or this Court from going back to NEC or the Tribunal for a determination as to whether or not he is a person affected by Decree 25 of 1987 (see sections 4 & 5 thereof). Is it also not correct that the Attorney-General of the Federation approved of the action? And this is what in my opinion gives weight to Mr. Fagbemi’s submission that “the legislator does not desire to subject matters under Decree 25 to the searchlight of regular courts.” Is it not common knowledge that some of –
“All persons who served as Secretaries to Federal and State Governments, Permanent Secretaries, Judges, Chairmen and members of Federal and State Boards of Statutory Corporations, and State owned Companies or on the Governing Boards of various institutions” (see para. 2 Schedule 1 of Decree 25 of 1987) who were declared automatically banned for life from holding any elective office or post, public office, political party office, whether elective or otherwise either in the government or in any political party without proof of any misdeed, indictment Or guilt by Iruobe v. Shagari Oni have already been cleared by NEC as not affected by Decree 25? Confusion is thus building up. This cannot be the intention of the legislator. The situation must be saved in time. It is a fact that NEC and the Tribunal have adopted the posture that the mere fact that a person comes within the provision of any of the paragraphs of Schedule One of Decree 25 of 1987 simpliciter does not make him a person affected by the Decree, and that such a person must in addition have been found guilty by a competent tribunal of inquiry as the case may be. I accept this interpretation firmly. I also believe that that is the stand of the Armed Forces Ruling Council (AFRC) the supreme law making body in the country as shown by the on going sale of “Clearance Forms” by NEC offices throughout the country which exercise is expected to last throughout the transition period. Thus the importance of a central and single body to deal with the tricky issue of ban, clearance or disqualification under Decree 25 cannot be over-emphasised. I have no doubt that sooner or later this court as the final court of appeal in election petition matters will have to take a second look at Iruobe v. Shagari Oni (supra). So, there is every necessity to be cautious. And it is significant to note that while an election petition must be filed within one month after the date on which an election is held, an objection or an application by any person to NEC for a determination may be made at any time. And even after the decision by the regular courts.
It is thus evident that any determination under section 34(1)(a) and section 4(1)(d) of the Decree 37 would be a determination in vain so long as it runs counter to any decision of NEC or Tribunal under Decree 25 that a person was banned or disqualified. But even then why should courts be made to decide again what has already been decided by either NEC or the Tribunal knowing very well that the decision of NEC or the Tribunal is final as provided under Decree 25? Is it to show that courts have nothing else to do? It is settled that Courts’ orders and decisions are meant to be obeyed and carried out subject only to a stay of execution – which is itself an order of court (see for example Bank of West Africa Ltd. v. N.I.P.C. Ltd. & Anor. (1962) 2 All N.L.R. 32). No Court will knowingly act in vain.
I have already held the view above that the High Court had jurisdiction to entertain appellant’s petition. But having regard to what I have said about the proviso to section 34(1)(a) of Decree 37 above, I am led to consider seriously the submission of Mr. Fagbemi that the appellant ought to have fully utilised or exhausted the proceedings and remedies outlined in Decree 25 before filing this petition in the High Court (see particularly para. 3(XIV) of the appellant’s petition and para. 4 of the Reply of the 2nd respondent). I think there is substance in this submission. Certainly if the appellant had exhausted Decree 25 before filing the petition, there would have been already a decision by NEC or the Tribunal one way or the other and evidence to that effect would have been available to prove that any person was-banned or disqualified under Decree 25 and so also under section 34(1)(a) of Decree 37. The evidence one way or the other would also certainly enable the Court to decide whether it would proceed to determine the petition or not. To me this is the only reasonable construction to be placed on the proviso which will remove uncertainty, friction, collision or confusion in the workings of both Decree 25 & 37. I am therefore irresistibly inclined to agree with Mr. Fagbemi that particularly with regard to the proviso to section 34(1)(a), the appellant herein ought to have exhausted his remedies under Decree 25 before filing the present petition under Decree 37. All indications suggest to me that this is a condition precedent to the filing of a petition under paragraph (a) subsection (1) of section 34 of Decree 37, as in the appeal before us.
I have carefully read the case of Iruobe v. Shagari Oni (supra) relied upon by Mr. Lardner for the appellant. I observe that the issue of jurisdiction or competence was not raised in that case. I can therefore safely conclude by saying that this present action is incompetent (see Madukolu v. Nkemdilim (supra). The non-fulfilment of the condition precedent to the exercise of jurisdiction is fatal and rendered the proceedings a nullity.
Having regard to all I have said above, I found it extremely unnecessary to proceed to consider the appeal on its merit. I will say it again that as a court of law this Court would knowingly do nothing in vain. The action filed being incompetent, the proper order to make is that striking out the suit. Accordingly, Suit No. EDLG/1/88 filed at the Ibadan High Court on 5/1/88 is hereby struck out. This shall be the order of the High Court.
The 1st and 2nd respondents are awarded costs of N200.00 each.
Other Citations: (1989)LCN/0099(CA)
