Prince Sunday Bamidele Aderonmu & Anor V. Independent National Electoral Commission & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the National Assembly Election Tribunal Lagos, delivered on 17/10/11, striking out the Appellants’petition on two grounds:

1. That the Pre-hearing session was not properly initiated in the case as required by the 1st Schedule to the Electoral Act 2010
2. That the Appellants’ petition was in respect of a pre-election dispute in respect of which the Tribunal lacks jurisdiction.

The Appellants appealed against the order striking out the Petition.

Issues were joined in this court and briefs were filed. At the hearing of the appeal, both counsel agreed on the 2 issues for determination. The Respondents’ counsel conceded the issue of improper initiation of pre-hearing session. In view of that, arguments were not taken on that issue and due to the concession of Respondents’ counsel and the state of the decision law as handed over by the Supreme Court that issue is resolved in favour of the Appellant. Thus, it is resolved that the Tribunal was wrong to hold that the prehearing session was not properly initiated.

Both counsel conceded that the sole issue remaining for determination is whether the issue raised by the Petition was in fact a post election dispute and the Tribunal was wrong to have adjudged same to be a pre-election dispute and by such reason declined jurisdiction.

On this issue, the learned Appellants’ counsel, Ademola A. Adewale, Adewole A. Adeleke, Raymond A. Olaiya and Ikechukwu E. Ozobodo contended that the fact that the 2nd Respondent presented forged educational certificate to contest in the election was a post-election matter and as such the Tribunal has jurisdiction to entertain the petition.

The counsel alleged that the Appellant only came to know of the fact of disqualification after the conduct of the April 2011 elections. They stated that under Section 65 (1) of the 1999 Constitution and Section 138 (1) of the Electoral Act 2010, an election petition can be brought on the ground that the person elected at an election was at the time of the election disqualified or not qualified to have stood for the election. He argued that this is more so if the fact of disqualification arose or emerged after the election in contradistinction to where the fact of disqualification was known to the Petitioner before the election or the fact of disqualification or non disqualification emerged from a domestic dispute within a party on issues such as nomination, substitution of a candidate and so on. He cited the following cases among others: SENATOR UCHA V. DR. ONWE (2011) 1-2 SC. Pt. 1 Pg. 93 at 100 & 144; AGBAKOBA V. INEC (2008) 12 sc. Pt. III Pg. 171; HASSAN v. ALIYU (2010) 7-12 SC. 21.

He finally argued that since the 2nd Respondent was at the time of the election disqualified from contesting and the dispute had nothing to do with the nomination or substitution of a candidate before election or intra-party matters, the dispute was clearly a post election dispute and the Tribunal was wrong to have held that it was a pre-election matter.

On their part, counsel to the 2nd and 3rd Respondents, Dr. Muiz Banire and Bayo Badmus argued that the Tribunal was right in dismissing the Appellants’ petition on the ground that the petition deals with a pre-election matter, on which it has no jurisdiction.

They argued that while the Tribunal can pronounce on the qualification or otherwise of a candidate to contest election, where the ground for such disqualification is based on criminal allegations; the Tribunal cannot pronounce on the guilt of the candidate without a prior determination of such issue by a court which has jurisdiction to try criminal offences. They further argued that the crux of the Appellants’ petition is the allegations of forgery and perjury and the Tribunal has absolutely no jurisdiction to try such offences.

Futhermore, they submitted that by section 3 (5) & (6) of the Electoral Act 2010, the Tribunal cannot try criminal offences and as such, before the Tribunal can pronounce on the disqualification of a candidate based on a criminal offence, there must have been a prior conviction by a court of competent jurisdiction.

They also argued that the disqualifying factors listed in section 66 of the 1999 constitution as amended precede the election and as such are pre-election matters which cannot be entertained by the Election Tribunal. He cited KOLAWOLE V. FOLUSO (2009) 8 NWLR Pt. 1143 Pg.338 AT 387; OMOWORARE V. OMISORE (2010) 3 NWLR Pt. 1180 Pg. 58 AT 111.

They also contended that the case of AGBAKOBA V. INEC (2008) 18 NWLR pt, 1119 pg. 488, cited by the Appellants does not apply here because it was decided under the old regime. The further contended that assuming the case applies, it was held PER CHUKUMA-ENEH JSC AT pg. 544 that any dispute resulting from the conduct of an election is not a pre-election dispute but a post election dispute. They submitted that this means that any matter that will properly come before the Tribunal must inevitably and clearly have arisen from the conduct of the election and that the allegations of forgery and perjury preceded the election. He cited JANG V. DARIYE (2003) 15 NWLR Pt. 843 Pg.436 at 460.

They referred the court to the recent decision of the Supreme Court in PDP V. ONWE (2011) 4 NWLR Pt. 1236 Pg. 165 at 173 PER TABAI, JSC, where it was held that where it is a pre-election matter, only the Federal High Court or the State High Court has jurisdiction.