Law  

A law court is fundamentally competent when properly constituted part 50

JusticeIN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON TUESDAY, THE 20TH DAY OF OCTOBER, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD JUSTICE, SUPREME COURT MUHAMMADS.M.COOMASSIE JUSTICE, SUPREMECOURT
OLABODE RHODES-VIVOUR JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
JOHN I. OKORO JUSTICE, SUPREME COURT
CHIMA C. NWEZE JUSTICE, SUPREME COURT
AMIRU SANUSI JUSTICE, SUPREME COURT
SC. 665/2015
BETWEEN:
MEGA PROGRESSIVE PEOPLES PARTY (MPPP) ………………………………………………………APPELLANT
AND
1.INDEPENDENTNATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVE CONGRESS (APC)
3. SENATOR IBIKUNLE AMOSUN
4. MRS. YETUNDE ONANUGA … RESPONDENTS

Now, election tribunals are, generally, established under Section 285 (1) and (2) of the Constitution. The composition of such tribunals is spelt out in Section 285(3) of the Constitution. Section 285(4) provides for the coram of such tribunals. For the avoidance of about, the two subsections read as follows:

“285(3) The composition of the national and State Houses of Assembly Election Tribunal and the Governorship election tribunal respectively, shall Be as set out in the six schedule to this Constitution.
(4) Thequorumofanelectionestablished tribunal under this Section shall be the chairman and one other member.” (Underlining for emphasis)

The sixth scheduled of the Constitution referred to in Section 285(3) of the Constitution, part B thereof provides:
“2 (1) A Governorship Election Tribunal shall consist of a chairman and two other members.
(2) Thechairmanwhoshallbeajudgeof high court and two other members shall be appointed from among judges 20 of a high court, Kadis of Shari’a Court of Appeal or members of the judiciary not below the rank of a chief magistrate.”

Thus, the composition and quorum have been stipulated by the Constitution. By the Supremacy of the Constitution, the two cannot be altered or removed. They are permanent features of the Constitution except where same have been amended by the Legislature. Any attempt to change, alter or remove anything from the provision as it is in the Constitution, will ran foul or contrary to the Constitution and would result into non-compliance with the Constitution and same would be a nullity.

It was submitted by the learned counsel for the 2nd Respondent that the chairman of the tribunal sat and determined the consolidated applications pursuant to Paragraph 27(1) of the first schedule to the Electoral Act 2010 (as amended). It is to be noted that from the tribunal’s proceedings of 3rd day of July, 2015, as quoted above and as contained on Page 329 of the record of appeal, the tribunal chairman has not stated anywhere, that he sat alone in pursuance of the said Paragraph. Paragraph 27 of the First Schedule (Rules of Procedure for Election Petitions) provides for the power of chairman of the tribunal or the Presiding Justice of the court to dispose of interlocutory matters. The Paragraph reads thus:
“27 All interlocutory questions and matters may be heard and disposed of by the chairman of the tribunal or the Presiding Justice of the court who shall have control over the proceedings as a Judge in the Federal High Court.”

A tribunal represents a seat of a judge. A place where a Judge administers Justice. It may consist of a body of judges who compose a jurisdiction. (Blacks Law Dictionary, 5th Edition Page 1350). It is akin to a court of justice which decides between persons. Any decision of a court of law- and a decision-according to the constitution, means any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. Before any court/tribunal can determine any of the above listed indices, it must have been conferred with jurisdiction which must be exercised by the judge/judges (which include chairman and members of any tribunal). In order to hand down any valid decision a court/tribunal must be properly constituted. In Modukola v. Nkemdilim (1962) 1 All NLR 587 at 595 or, as reported in (1962) 2 NSCC 372; (1962) 2 SCNCR 31, this court, per Bairamian, FJ, held inter alia:

A court is competent when:
1. It is properly constituted as regard numbers and qualifications of the member of the bench and no number is disqualified for one reason or another,
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to 20 the exercise of jurisdiction.

The requirement in Section 285(4) of the Constitution for a tribunal to form a quorum is that, the tribunal must consist of the chairman and another member of the tribunal. The section uses the word “shall”, denoting necessity, mandatoriness and or compulsion. Further, the section does not exempt any other situation(s) where the tribunal can pick and choose which of the processes before it can be entertained by a full quorum of the tribunal or only by the chairman. Certainly, when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by legitimate authority, then whatever is done in contravention, it amounts to a nullity. The constitution has provided that for the tribunal to form a quorum the chairman and a member must be present, take the proceedings together and deliver its judgment or ruling together.

Thus, where the tribunal chairman sat alone and considered the consolidated motions alone and delivered his ruling alone, he only succeeded in wasting his precious judicial time, that of the parties and then counsel and any other person or institution that has one thing to do or another in relation to that proceeding. Paragraph 27 of the First Schedule of the Electoral Act has no relevance to the Jurisdiction of the tribunal. It is covered by Section 285(4) of the Constitution. That is the essence of doctrine of covering the field such that where a main, principal or superior law has covered a given field or area; any other subsidiary law made in that area cannot operate side by side with the main/principal/ superior law. If it is inconsistent, it has to be declared void to the extent if its inconsistency. The supremacy of the constitution must be obeyed and respected.

The Respondents have clamoured that this court can assume the position of the lower court or even that of the trial tribunal. Yes, that is true as per the provision of Section 22 of the Supreme
25 Court Act, 1960. But I do not share the view that this is one of the rare situations where this court can assume such a jurisdiction. This is because, even the consolidated motions were not heard end determined by the trial tribunal, nor by the court below.

The main petition was never considered on its merit. I think there is need, of course absolute need for the tribunal and the Court below to express their views thereon. I am not unaware of the time lapse, but that cannot, in my humble view, push this court to assume original jurisdiction on an election petition that was not heard and determined by the two courts below.

In the final analysis, I too, allow this appeal. I remit the matter to the Hon. President of the Court of Appeal for further directives to a reconstituted tribunal for taking the matter de novo. I make no order as to costs.

B.RHODES-VIVOUR,JSC.: Ihavehadtheadvantageofreading in draft the judgment prepared by my learned brother, Muntaka- Coomassie, JSC. I agree with His lordship’s conclusions. In view of the importance of the jurisdiction point I add a few words of my own.

The Appellant, a registered political party in Nigeria sponsored Mrs. lyabode Ogunmefun as its gubernatorial candidate for Ogun State of Nigeria at the. General Elections which were held on the 11th of April 2015. They were excluded from the elections. That is to say the Appellant and its candidate did not take part in the election. The 3rd Respondent, and his running mate, the 4th Respondent were declared winners of the election.

Aggrieved with the turn of events the Appellant filed a petition on the 4th of May, 2015 seeking in the main an order of the elections tribunal to annul the said election. The parties filed their respective processes. Pre-hearing conference commenced, 25 and on the 10th day of July 2015, the chairman of the Governorship Election Tribunal, the Hon. Justice H. A. Olusiyi, sitting alone struck out the Appellant’s petition.

The simple issue for determination is:
Whether the Governorship Election Tribunal was properly constituted when its chairman, Hon. Justice H.A. Olusiyi sat alone on the 10th of July, 2015 and struck out the Appellant’s Petition.
Section 285(4) of the Constitution states that:”
“285(4) Thequorumofanelectiontribunal established under this section shall be the chairman and one other
member.”

In Madukolu & Ors. v. Nkemdilim (1962) 2 NSCC 319 Bairamian F.). made some observations on jurisdiction and the competence of a court which are the correct position of the law on jurisdiction and competence of a court to adjudicate. His lordship said that:
A court is competent when: it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
thesubjectmatterofthecaseiswithin its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and thecaseconiesbeforethecourtinitiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in the composition of an election tribunal is fatal, for the proceedings are a nullity no matter how well they were handled and decided.

The defect is extrinsic to the proceedings. See: Sea Trucks Ltd. v. Anigboro (2001) 1 S.C. (Pt. I) 45; C.G.G. Nig. Ltd. v. Aminu (2015) 2-3 S.C. 75. There can be no doubt after reading Section 285(4) of the Constitution, that an election tribunal is properly constituted when the chairman and one other member hear proceedings before it.



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