The Chairman of an Election Petition Tribunal Cannot Determine Interlocutory Applications in the Petition Sitting Alone
Although the provisions of Paragraph 7 of the 1st Schedule to the Electoral Act permits the Chairman of an election petition tribunal to hear and determine interlocutory applications sitting alone, the Supreme Court has consistently maintained in its recent decisions, that the said provisions of the Electoral Act is inconsistent with the provision of Section 285(4) of the Constitution, which provides that an election petition tribunal is duly constituted to determine a Petition, by a Chairman and one other member. Indeed, the posture of the Supreme Court, through its recent decisions, the instant appeal inclusive, is supported by the fact that interlocutory applications are ingrained into a petition and cannot be considered in isolation. In the instant appeal, the Supreme Court set aside the decision of the Tribunal on the grounds that the Tribunal was improperly constituted by the Chairman alone and lacked the jurisdiction to determine the preliminary objection of the Respondents.
Facts Sequel to the Ogun State Gubernatorial elections held on 11 April, 2015, wherein Senator Ibikunle Amosun (“the 3rd Respondent”) was declared as duly elected on 12 April, 2015, the Appellant filed a petition on 4 May 2015, against the declaration and return of the 3rd Respondent as the winner of the election at the Governorship Election Tribunal sitting at Abeokuta, Ogun State (“the Tribunal”).
At the hearing of the Petition, the Respondents each filed a preliminary objection, challenging the competence of the petition on the grounds of limitation of time, same having been filed outside the 21 days period provided for by Section 285(1) of the Constitution. In its ruling on the applications delivered on 10 July 2015, the Tribunal declined jurisdiction and held the Petition to be incompetent, having been filed outside the time prescribed by law. The Tribunal accordingly granted the applications and struck out the Petition.
Dissatisfied, the Appellant filed an appeal against the decision of the Tribunal at the Court of Appeal, Ibadan (“the Court of Appeal”) on the grounds, amongst others, that the Tribunal erred in law when it determined the Appellant’s Petition in limine, irrespective of the contention on the actual date the results of the gubernatorial elections were declared. The Court of Appeal in its considered judgment, recognised the strict essence of time in an election petition and held that even if the last date for the filing of the election petition fell on a Sunday (a holiday) as asserted by the Appellant, the provisions of the Interpretation Act could not apply to extend the date of filing to the following day. The Court of Appeal found the appeal to be without merit and accordingly dismissed same.
Further dissatisfied, the Appellant appealed to the Supreme Court, on the following grounds, to wit- that (i) the Court of Appeal erred in affirming the ruling of the Tribunal, which was made without jurisdiction, as the Tribunal was improperly constituted to hear and determine the applications of the Respondents before it; (ii) the Court of Appeal erred in law when it failed to consider and apply its previous decision in the case of KABIR v ACTION CONGRESS (2012) All FWLR (Pt. 647) C.A. 638, amongst others, in computing and determining the final day for the filing of the Appellant’s Petition, when the last day of the 21 days period, falls on a non-juridical day and (iii) the Court of Appeal erred in law when it acted upon the incompetent Respondents’ briefs that were filed out of time. These grounds of appeal formed the basis of the three issues presented before the Supreme Court for determination. The Supreme Court, however, limited its determination of the appeal to the issue of jurisdiction and declined to consider the parties’ submissions on the other issues.
On the issue of jurisdiction, the Appellant submitted that the Tribunal had no jurisdiction to hear and determine the Petition in the manner it did, by reason of the fact that it was improperly constituted, the applications having been heard and determined by only the Chairman and no other member of the Tribunal. Along these lines, the Appellant submitted that the defect in the membership of the Tribunal, completely robbed the Tribunal of the requisite jurisdiction to determine the Respondents’ applications before it and consequently any decision emanating from the irregularly constituted Tribunal amounts to a nullity, no matter how beautifully crafted. The Appellant herein, relied heavily on the locus classiscus decision in the case of MADUKOLU v NKEMDILI (1962) 2 SC NLR 341.
The Appellant further submitted that the provisions of Paragraph 7 of the 1st Schedule to the Electoral Act, which seemingly permits the chairman of a Tribunal to hear and determine interlocutory applications alone, does not operate in support of the Respondents’ case, because the said provision of the Electoral Act is in clear conflict with the provisions of Section 285(4) of the Constitution, which provides for the composition of the Tribunal to be the Chairman and one other member.
Furthermore the Appellants submitted that the question of jurisdiction is a fundamental and threshold issue, that once raised, a court has to determine same first before proceeding with the hearing of the matter. The Appellant referred to the case of A.G. ANAMBRA STATE v A.G. FEDERATION (2007) All FWLR (Pt. 379). The Appellant further submitted that the issue of jurisdiction can be raised at any stage of proceedings and even for the first time on appeal, as is in the instant appeal, without seeking the leave of the Court. The Appellant herein relied on a plethora of authorities, the cases of ACCESS BANK PLC v G.L.O. CONSULT (2009) 12 NWLR (Pt. 1156) 5334 and NUHU v OGELE (2003) 18 NWLR (pt. 852) 251 SC at 279, amongst others.
In resolving the issue in this appeal, the Supreme Court took the view that none of the Respondents sufficiently addressed the issue of jurisdiction in answer to the Appellant’s submission and as such declined reproducing the submissions of the Respondents thereon. The Supreme Court then held that the Tribunal was not properly constituted when it heard and determined the applications of the Respondents, as the Chairman of the Tribunal had no power to sit and determine the applications alone. The Supreme Court further held that the provisions of the Electoral Act, from which the conduct of the Tribunal derived its validity was inconsistent with the clear provisions of Section 285(4) of the Constitution and to that extent, the decision made thereon was a nullity. The Supreme Court accordingly resolved this issue in favour of the Appellant.
Thereafter, the Supreme Court took the view that the issue of jurisdiction raised by the Appellant was capable in law of disposing of the entire appeal and thereby refrained from delving into the remaining two issues raised by the Appellant, considering same to have been rendered academic and moot by its decision on the issue of jurisdiction. The Supreme Court accordingly allowed the appeal and remitted same to the Court of Appeal for it to reconstitute a different fresh panel to hear and determine the Petition forthwith. Representation For the Appellant: Omereonye Morgans, ESQ., with Anthony Itedjere, ESQ.,
For the 1st Respondent: A. Kayode with O.F. Akinsanmi (Miss)
For the 2nd Respondent: George Oyeniyi
For the 3rd and 4thRespondent: Olutunde Abegunde, Oteneghabuna Ebose, Ayodeji Olanipekun, Affis Matanmi and Olawale Oyebode.
Reported by Tochukwu Anaenugwu, Aluko & Oyebode, Lagos State.