Features  |  Law  

Can courts exercise discretion where Electoral Act is of a mandatory nature?

By Editor   |   22 December 2015   |   1:28 am  

JusticeIn The Court of Appeal of Nigeria
On Wednesday, the 18th day of November, 2015
CA/MK/EP/GOV./20/2015
Before Their Lordships
MOHAMMED LAWAL GARBA -Justice, Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE -Justice, Court of Appeal of Nigeria
RITA NOSAKHARE PEMU –Justice, Court of Appeal of Nigeria
TANI YUSUF HASSAN -Justice, Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA -Justice, Court of Appeal of Nigeria
Between
RT. HON. PRINCE TERHEMEN TARZOOR – Appellant
AND
1. ORTOM SAMUEL IORAER
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
This appeal borders on procedural irregularities in an Election Petition.

FACTS: In the governorship election conducted by the INEC in Benue State, the Appellant contested under the platform of the Peoples Democratic Party (PDP), while the 1st Respondent, under the sponsorship of the 2nd Respondent, also contested the said election at the end of which he was declared and returned as the winner by the 3rd Respondent.
Aggrieved by the declaration and return of the 1st Respondent as the winner, the Appellant, challenged same by way of an election petition presented before the Governorship Election Petitions Tribunal established for Benue State, upon the following grounds:

. Your Petitioner states that the 1st Respondent, Ortom Samuel Ioraer was, at the time of the Election, not qualified/disqualified to contest the Election.

. Your Petitioner states that the Declaration and Return of the 1st Respondent aforesaid was invalid by reason of non-compliance with the mandatory provisions of the Electoral Act, 2010 (as amended) and the 1999 Constitution of the Federal Republic of Nigeria (as amended).

. Your Petitioner states that the 1st Respondent was not duly elected by a majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and announced on 13th day of April, 2015.
The Appellant claimed the following reliefs from the Tribunal:

. That it may be determined and doth declared that the 1st Respondent was not qualified and/or was disqualified from contesting the Election to the Office of Governor of Benue State on the 11th day of April, 2015 having not satisfied the mandatory requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

. That it may be determined and doth declared that based on the lawful votes cast at the said Election, the 1st Petitioner ought to have been returned as the Governor of Benue State as he scored the majority of the lawful and valid votes cast and also satisfied other requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hence all the votes cast for the 1st Respondent were invalid on account of his not being a Candidate for the Election aforesaid.

. That it may be determined and doth declared that the Petitioner who was the Candidate of the Peoples Democratic Party was duly Elected or Returned by the majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and declared on 13th April, 2015.

. An order of the Honourable Tribunal directing the 3rd Respondent to withdraw the Certificate of Return issued to the 1st Respondent in error and issue same to the Petitioner as the winner of the Governorship Election in Benue State held on the 11th day of April, 2015 having scored the majority of lawful and valid votes cast at the Election and also satisfied the other requirements of the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

All the Respondents filed their respective replies to the petition denying the facts contained therein and after settlement of pleadings and conclusion of preliminary procedures, the petition proceeded to trial at the end of which the Tribunal dismissed the petition and upheld the declaration and return of the 1st Respondent as the winner of the election.
Being dissatisfied with the judgment of the Tribunal, the Appellant appealed to the Court of Appeal.
Also, not satisfied with some aspects of the judgment, the 1st and 2nd Respondents filed separate Notices of Cross Appeal against the said portions. ISSUE(S) FOR DETERMINATION:

MAIN APPEAL: Whether the Tribunal did not misplace the burden and standard of proof on the pleadings by placing it on the Appellant instead of the Respondents?
. Whether the Tribunal’s consideration of the weight of evidence on the holding of the 2nd Respondent’s Primary was not perverse?
. Whether the 1st Respondent proved that he properly joined the 2nd Respondent to be entitled to contest the Governorship Election of 11th April, 2015?
. Whether it was proper for the Tribunal to have relied on the provision of Section 140(2) of the Electoral Act, 2010 (as amended) to dismiss the Petition?
Number four of the issues, was struck out by the court for been incompetent.
Cross Appeal by the 1st Respondent/Cross Appellant: The 1st Respondent/Cross Appellant distilled three (3) issues for determination.
The issues are: Whether qualification of 1st Respondent/Cross Appellant as a ground was validly countenanced by the trial tribunal at all in the face of objection to same as being caught by issue estoppel, res judicata and abuse of court process born out by judgments in pre-election Suits NO. FHC/ABJ/CS/1057/2014 and FHC/MKD/CS/9/2015 (GROUNDS 1, 2, 3 AND 7.)

. Whether the petition of the Appellant/1st Cross Respondent ought not to have been dismissed as abandoned pursuant to Paragraph 18(1) and (4) of the First Schedule to the Electoral Act, 2010 (AS AMENDED) without the need to countenance same on merit (GROUND 6)
. Whether the trial tribunal rightly overruled 1st Respondent/Cross Appellant’s objection to the Admissibility of any of Exhibits P11, P16 and authenticity of R18A AND R18B (GROUNDS 4 AND 5).
Cross Appeal by the 2nd Respondent/Cross Appellant:
. Was the Tribunal right when, in dismissing the 2nd Respondent/Cross Appellant’s Motion challenging its jurisdiction, it held that res judicata did not apply to the petition and that the Appellant had locus standi to present the petition? (Grounds 1 and 2 of the Grounds of Cross-Appeal).
. Was the Tribunal right in upholding the Appellant’s third Ground of Petition? (Ground 3 of Grounds of Cross-Appeal). 3. Was the Tribunal right in law when it refused, failed or neglected to consider and rule on 2nd Respondent’s challenge to its jurisdiction on account of the issues raised by the Appellant bordering on alleged infringement of the Constitution of the Federal Republic of Nigeria, 1999 as amended? (Ground 4 of Grounds of Cross-Appeal).
HELD: Main appeal:

In the final result, all the issues considered material in the determination of the appeal, by the court, were resolved against the Appellant. Therefore, it was held that the appeal lacked merit and it was dismissed. The judgment of the Tribunal was affirmed.
Cross Appeal by the 1st Respondent/Cross Appellant: The 1st Respondent/Cross Appellant’s appeal failed and was dismissed.
Cross Appeal by the 2nd Respondent/Cross Appellant: The Cross Appeal of the 2nd Respondent/Cross/Appellant was dismissed and part of the judgment in which the Tribunal dismissed the Motion on Notice of the 2nd Respondent/Cross Appellant wherein the Tribunal’s jurisdiction was challenged, was set aside.



You may also like