National Electoral Commission & Anor V. Chief F.A. Nzeribe (1991)

LawGlobal-Hub Lead Judgment Report

AWOGU, J.C.A.

This appeal is against the exercise of jurisdiction, and calls into question, once again, the extent to which ouster clauses in Decrees also oust the supervisory jurisdiction of our superior courts of record.

The facts of the case are not seriously in dispute. In 1988, Chief Nzeribe went to the 1st defendant for clearance under Section 4 of Decree No.25 of 1987. The 1st defendant/appellant (hereinafter referred to as the Commission) disqualified him from participation in politics. He appealed to the Transition to Civil Rule Tribunal (hereinafter referred to as the Tribunal) which decided on 19th May, 1989, as follows:

“In view of the foregoing, we make an order setting aside the decision of the National Electoral Commission that the appellant, Chief Francis Arthur Nieribe was a person disqualified from seeking election to public office by virtue of the ‘Participation in Politics (Prohibition) Decree No. 25 of 1987. However, we want to make it clear that our decision is solely and entirely based on evidence before us. It is without prejudice to the Constitution of the Nigerian Peoples Party (NPP) of 1979 which was lodged with the defunct FEDECO. This NPP Constitution of 1979 was not produced before us. Therefore we cannot and we have not made any pronouncement on it”

In 1989, Chief Nzeribe made another application to the Commission for a fresh determination of his status under Decree 25 of 1987. By an Instrument dated 3rd July, 1989, (Exh. A), he was again declared as disqualified from participation in politics. He made a return trip to the Tribunal for a review of the decision. The application sought for an order (i) setting aside the decision of NEC that the applicant was a person disqualified from seeking election to a public office, (ii) giving such directions as may be just for the purpose of trying any disputed facts in this cause, and (iii) for such further or other orders as this Tribunal may deem fit to make. It was dated 24th July, 1989. There was a 4- paragraph affidavit in support, stating, inter alia:

“2. On 21st of April, 1989 I applied to the above named Respondent for a determination as to whether I am a person affected by the Participation in Politics and Elections (Prohibition) Decree 1987 No.25. I received a reply, a copy of which is now shown to me and marked Exhibit A.

3. Now shown to me and marked Exh. B is a true copy of a previous decision in proceedings between me and the above named Respondent last year.
4. I did not between the period 1st October, 1960 to 15th January, 1966 and 1st October, 1979 to 30th December, 1983 hold any of the offices specified in Part 1 of Schedule 2 to the Participation in Politics and Elections (Prohibition) Decree 1987 No. 25.”

The Commission filed a counter-affidavit, the last two paragraphs of which stated as follows:

“11. That I was told by the Secretary to the Respondent and I verily believed him that between 1979 and 1983 the Applicant was a member of the proscribed NPP and between October and December 1983 was a Senator elected on the platform of the said NPP.

12. That the Secretary to the Respondent told me and I verily believed him that by virtue of the NPP Constitution 1980, then in force the Applicant was a member of the Imo State Executive Committee of the said NPP.”

With the stage thus set, the Plaintiff/Respondent told the story of what transpired at the tribunal. According to his affidavit in support of the originating summons:-

“9. The said application came before the tribunal on the 10th day of August 1989 and my case was concluded on that same day. The National Electoral Commission was however not able to conclude its own case until later and final addresses were delivered by counsel for the commission on 6/9/89 and by my own counsel on 7/9/89 and 8/9/89. The Tribunal then reserved its judgment for Monday, 18th of September, 1989.

On the 18th September, 1989 what happened was narrated as follows by the Tribunal at page 23 of its judgment which was delivered on the 18th day of October, 1989 and which reads as follows:-

“After the last adjournment, as we resumed on Monday 18th September, 1989, we called on both counsel for the parties to call additional witnesses and address us on the status of the Petitioner while he was in the Senate. Chief Williams objected to that. We overruled him and gave our reasons.”

Now shown to me and marked Exhibit 5 is a true copy of the said judgment”

By the said judgment, Exhibit 5 the Tribunal upheld the disqualification of the Plaintiff/Respondent.